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[Federal Register Volume 70, Number 181 (Tuesday, September 20, 2005)]
[Proposed Rules]
[Pages 55062-55071]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-18722]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R05-OAR-2005-WI-0003; FRL-7970-7]

Approval and Promulgation of Implementation Plans; Wisconsin; 
General and Registration Permit Programs

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve revisions to the Wisconsin State 
Implementation Plan (SIP) submitted by the State of Wisconsin on July 
28, 2005. These revisions include General and Registration permit 
programs that provide for the issuance of general and registration 
permits as part of the State's construction permit and operation permit 
programs. In addition, these permit programs may include the regulation 
of hazardous air pollutants (HAPs) which may be regulated under section 
112 of the Clean Air Act (the Act). Thus, EPA is also proposing 
approval of Wisconsin's general and registration permit program under 
section 112(l) of the Act.
    These SIP revisions also contain changes to definitions related to 
Wisconsin's air permit program, as well as a minor technical change to 
provide correct references to the recently updated chapter NR 445, 
which was inadvertently omitted in the processing of that rule package. 
Additionally, these revisions clarify an existing construction permit 
exemption and operation permit exemption for certain grain storage and 
drying operations. This clarification is necessary to ensure that 
column dryers and rack dryers are included in the exemption criteria.

DATES: Written comments must be received on or before October 20, 2005.

ADDRESSES: Submit comments, identified by Regional Material in EDocket 
(RME) ID No. R05-OAR-2005-WI-0003, by one of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
on-line instructions for submitting comments.
    Agency Web site: http://docket.epa.gov/rmepub/. RME, EPA's 
electronic public docket and comments system, is EPA's preferred method 
for receiving comments. Once in the system, select ``quick search,'' 
then key in the appropriate RME Docket identification number. Follow 
the on-line instructions for submitting comments.
    E-mail: [email protected].
    Fax: (312) 886-5824.
    Mail: You may send written comments to: Pamela Blakley, Chief, Air 
Permit Section, (AR-18J), U.S. Environmental Protection Agency, Region 
5, 77 West Jackson Boulevard, Chicago, Illinois 60604.
    Hand Delivery or Courier: Deliver your comments to: Pamela Blakley, 
Chief, Air Permit Section, (AR-18J), U.S. Environmental Protection 
Agency, Region 5, 77 West Jackson Boulevard, 18th floor, Chicago, 
Illinois 60604. Such deliveries are only accepted during the Regional 
Office's normal hours of operation. The Regional Office's official 
hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m. 
excluding Federal holidays.
    Instructions: Direct your comments to RME ID No. R05-OAR-2005-WI-
0003. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available online at 
http://docket.epa.gov/rmepub/, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through RME, regulations.gov, 
or e-mail. The EPA RME website and the federal regulations.gov Web site 
are ``anonymous access'' systems, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through RME or

[[Page 55063]]

regulations.gov, your e-mail address will be automatically captured and 
included as part of the comment that is placed in the public docket and 
made available on the Internet. If you submit an electronic comment, 
EPA recommends that you include your name and other contact information 
in the body of your comment and with any disk or CD-ROM you submit. If 
EPA cannot read your comment due to technical difficulties and cannot 
contact you for clarification, EPA may not be able to consider your 
comment. Electronic files should avoid the use of special characters, 
any form of encryption, and be free of any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
RME index at http://docket.epa.gov/rmepub/. Although listed in the 
index, some information is not publicly available, i.e., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, is not placed on the Internet 
and will be publicly available only in hard copy form. Publicly 
available docket materials are available either electronically in RME 
or in hard copy at Environmental Protection Agency, Region 5, Air and 
Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. 
We recommend that you telephone Susan Siepkowski, Environmental 
Engineer, at (312) 353-2654 before visiting the Region 5 office. This 
Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, 
excluding legal holidays.

FOR FURTHER INFORMATION CONTACT: Susan Siepkowski, Environmental 
Engineer, Air Permit Section, Air Programs Branch (AR-18J), U.S. 
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 
Chicago, Illinois 60604, (312) 353-2654, [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This supplementary information 
section is arranged as follows:

I. Does This Action Apply to Me?
II. What Has Wisconsin Submitted?
    A. General Permit Rule
    B. Registration Permit Rule
    C. Clarification to Grain Elevator Exemption
    D. Changes to Definitions, References, and Numbering
III. Do These Rules Comply With Federal Requirements?
    A. Evaluation of the General Permit Rule
    B. Evaluation of the Registration Permit Rule
    C. Evaluation of the Clarification to Grain Elevator Exemption
    D. Evaluation of the Changes to Definitions, References, and 
Numbering
IV. What Action Is EPA Taking Today?
V. Statutory and Executive Order Reviews

I. Does This Action Apply to Me?

    This rule provides certain owners and operators in Wisconsin with 
alternatives to traditional construction and operation air permits. 
Wisconsin has created new permitting programs to provide registration 
and general air permits as an alternative to individual source permits. 
The rule sets certain standards for developing the permits and criteria 
under which sources would qualify for coverage under the permits. 
Specific terms and conditions will be established during the 
development of each permit, which will then be standard for all sources 
that are covered under the permit. Sources may apply for coverage under 
these permits by submitting an application to the Wisconsin Department 
of Natural Resources (WDNR), who will determine whether the source is 
eligible for the permit.
    Under the registration permit rule, registration construction and 
registration operation permits will be developed for sources with low 
actual or potential emissions of air pollutants. The rule provides that 
a registration construction permit will be issued to a facility for the 
construction, reconstruction, replacement, relocation or modification 
of stationary sources whose actual emissions do not exceed 25% of any 
major source threshold. The rule also provides that a registration 
operation permit must be issued to facilities whose actual emissions do 
not exceed 25% of major source thresholds.
    The second revision to the Wisconsin SIP permitting program is the 
general permit rule. This rule establishes that general construction 
and general operation permits will be developed for categories of 
sources with the same or similar emissions, operations, control 
systems, and regulatory requirements. Categories of sources that are or 
could be eligible for general permits include nonmetallic mineral 
processing plants, asphalt plants, small natural gas fired generators, 
small heating units, printing presses and hospital sterilization 
equipment. If an eligible owner or operator elects to comply with the 
rule, a generic permit that requires operation in compliance with the 
applicable sections of the Wisconsin rules will be issued to the 
source.

II. What Has Wisconsin Submitted?

    On July 28, 2005, Wisconsin submitted the following revisions to 
its SIP: To repeal NR 406.04(1)(c) and 407.03(1)(c); to renumber NR 
406.02(1) to (4); to amend NR 406.04(1)(ce), (cm) and (m)(intro.), 
406.11(1)(intro.) and (c), 407.03(1)(ce) and (cm), 407.05(7), 
407.15(intro.) and (3), 410.03(1)(a)(5), and 484.05(1); to repeal and 
recreate NR 407.02(3) and 407.10; and to create NR 400.02(73m) and 
(131m), 406.02(1) and (2), 406.04(2m), 406.11(3), 406.16, 406.17, 
406.18, 407.02(3m), 407.105, 407.107, 407.14 Note, 407.14(4)(c) and 
410.03(1)(a)(6) and (7). These rules, as discussed in more detail 
below, establish general and registration permit programs, clarify an 
exemption for grain elevators under the State's construction and 
operation permit programs, define terms related to the State's 
permitting programs, and correct a reference in Wisconsin's 
regulations.
    The WDNR held a second public comment period on this rule because 
it made significant changes to the proposed rule to address comments 
received during the first comment period. The first comment period ran 
during October and November 2004, and the second through February and 
March 2005. WDNR held public hearings during both comment periods. As a 
result of the public comments, WDNR made more specific the criteria for 
developing the permits and the criteria under which sources would be 
eligible for coverage.
    In April 2005, WDNR proposed this rule revision to the Wisconsin 
Natural Resources Board for adoption, and the Board approved the rule 
on April 27, 2005. WDNR submitted its request that EPA approve the 
rules as a SIP revision to EPA on July 28, 2005, and EPA determined on 
August 11, 2005 that the submittal was complete.

A. General Permit Rule

    On February 5, 2004, Wisconsin enacted Act 118, which gave WDNR the 
authority to develop a general construction permit program. The State 
has existing authority to issue general operation permits under its 
operation permit program. Act 118 required WDNR to establish the 
general permit program to provide industry and the WDNR with a 
streamlined approach for permitting sources that have similar 
operations and air emissions levels. The general construction and 
operation permit provisions are codified at NR 406.16 and NR 407.10 of 
the Wisconsin Administrative Code, respectively. A definition for 
``general permit'' is codified at NR 400.02(73m) of the Wisconsin 
Administrative Code.
    Under the general permit program, WDNR must develop construction 
and operation permits for categories of

[[Page 55064]]

sources with the same or similar emissions, operations, control systems 
and regulatory requirements, as described at NR 407.16(1) and NR 
407.10(1) of the Wisconsin Administrative Code. Categories of sources 
that are, or could be, eligible for general permits include: 
Nonmetallic mineral processing plants, asphalt plants, small natural 
gas fired generators, small heating units, printing presses, and 
hospital sterilization equipment. The procedure for establishing 
general construction or operation permits includes the preparation of 
an air quality analysis and preliminary determination, and the 
distribution of a notice of the opportunity for public and EPA comment 
and of the opportunity to request a public hearing. Once WDNR has 
established a general permit, individual sources may apply for 
coverage.
    Pursuant to NR 406.16(2) and NR 407.10(2), sources that are not 
eligible for coverage under general permits include: Municipal solid 
waste combustion sources; projects that require a Prevention of 
Significant Deterioration (PSD) or New Source Review (NSR) permit or 
emission units that may cause or exacerbate, a violation of an ambient 
air quality standard or air increment. Further, NR 406.11(1)(g) and NR 
407.15(8) provide the methodologies that WDNR will use to determine for 
general construction and general operation permits, respectively, 
whether a source covered under a general permit has emissions that may 
cause or exacerbate a violation of an ambient air quality standard or 
air increment.
    The process for determining coverage under a general construction 
or operation permit is described under NR 406.16(3) and NR 407.10(3), 
respectively. This process requires the source to submit an application 
to the WDNR, who will then determine whether the source is eligible for 
coverage.
    NR 406.16(4) of the Wisconsin Administrative Code requires that the 
general construction permit be incorporated into the facility operation 
permit. NR 407.10(4) of the Wisconsin Administrative Code creates an 
exemption from the requirement to obtain a construction permit for 
sources covered under a general operation permit as long as, among 
other things, the modification does not result in a violation of the 
terms and conditions of the general operation permit. NR 406.04(2m) 
creates a similar exemption for sources that are covered under either a 
registration or general operation permit.
    NR 406.16(5) and NR 407.10(5) describe the process by which sources 
covered under a general construction or operation permit may apply for 
and request a different type of permit. In addition, NR 407.10(6) 
provides that sources covered under a general operation permit which 
are later determined not to qualify would be subject to legal action.
    The rule also creates NR 406.18 and NR 407.107, both of which 
describe the procedures for a party to petition WDNR to develop a 
general permit for other categories of stationary sources, and describe 
the factors that WDNR will use in setting its priorities for general 
permit development.
    In addition to criteria pollutants, Wisconsin's general permit 
program applies to HAPs. Certain HAPs are, or will be, regulated under 
sections 111 and 112 of the Act. Thus, EPA is also approving 
Wisconsin's general permit program under section 112(l) of the Act for 
the purpose of creating federally enforceable limitations on the 
potential to emit HAPs regulated under section 112.

B. Registration Permit Rule

    Wisconsin Act 118 also provided WDNR with the authority to develop 
a registration permit program for construction and operation permits. 
The registration permit program is designed to provide industry and the 
WDNR with a streamlined approach for permitting sources with low actual 
or potential emissions. The registration permit program is also a 
mechanism to permit small sources that may otherwise be subject to the 
Federally Enforceable State Operating Permit (FESOP) program and 
require an individual source permit. This program thereby reduces the 
permitting burden on both sources and the WDNR. Registration 
construction permit provisions are codified at NR 406.17, and the 
registration operation permit provisions are codified at NR 407.105. A 
definition was created for ``registration permit'' at NR 400.02(131m).
    NR 406.17(1) and NR 407.105(1) allow the WDNR to issue registration 
permits to sources which meet specific criteria. The process for 
issuing these permits includes the preparation of an air quality 
analysis and preliminary determination, and the distribution of a 
notice of the opportunity for public and EPA comment and of the 
opportunity to request a public hearing. Once WDNR has issued the 
registration permit, individual sources may apply for coverage. The 
registration permit will essentially cap, or limit, the facility, or 
unit emissions to a specified level.
    NR 406.17(2) establishes the criteria for issuance of a 
registration construction permit. It provides that a registration 
construction permit shall be issued to a facility for the construction, 
reconstruction, replacement, relocation or modification of stationary 
sources whose actual emissions do not exceed 25% of any major source 
threshold. NR 407.105(2) establishes the criteria for issuance of a 
registration operation permit. A source is eligible for coverage under 
a registration operation permit if its actual emissions do not exceed 
25% of any major source threshold. This section also establishes 
physical design and air dispersion modeling criteria.
    Sources that are not eligible for coverage under a registration 
permit are described at NR 406.17(3) and NR 407.105(3), and include: 
Municipal solid waste combustion sources; projects that require a PSD 
or NSR major source permit (NR 406.16); emission units subject to 
section 111 or 112 of the Act other than those deemed by WDNR not to 
preclude eligibility for the registration operation permit; or emission 
units that may cause or exacerbate, a violation of an ambient air 
quality standard or air increment. NR 406.11(1) and NR 407.15(8) 
authorize WDNR, among other things, to withdraw a source from coverage 
of the general or registration permits, and provide the methodologies 
that WDNR must use to determine if a source covered under a 
registration permit has emissions that may cause or exacerbate a 
violation of an ambient air quality standard or air increment.
    NR 406.17(4) and NR 407.105(4) describe the process for determining 
coverage under a registration construction or operation permit, 
respectively. This process requires the source to submit an application 
to the WDNR, who will then determine whether the source is eligible for 
coverage.
    NR 406.17(5) requires that the terms of a registration construction 
permit be incorporated into the facility's registration operation 
permit. NR 407.105(5) exempts sources with a registration operation 
permit from obtaining a construction permit for construction activities 
that will not violate the terms or conditions of the registration 
operation permit. NR 406.04(2m) also creates this exemption for sources 
that are covered under a registration or general operation permit.
    NR 406.17(6) and NR 407.105(6) describe the process by which a 
source with a registration construction or operation permit can apply 
for a different type of permit. NR 407.105(7) describes the criteria 
WDNR will use for

[[Page 55065]]

determining whether a facility under the registration operation permit 
is in compliance with all applicable requirements.
    The rule also creates provisions NR 406.18 and NR 407.107, which 
describe the procedures for a person to petition WDNR to develop a 
general or registration construction or operation permit for a category 
of stationary sources, and describes the factors that WDNR will 
consider in determining whether to grant or deny the petition.
    Wisconsin's registration permit program not only applies to 
criteria pollutants, but also to hazardous air pollutants (HAPs). 
Certain HAPs are, or will be, regulated under sections 111 and 112 of 
the Act. Thus, EPA is also approving under section 112(l) of the Act 
Wisconsin's registration permit program for the purposes of creating 
federally enforceable limitations on the potential to emit HAPs 
regulated under section 112 of the Act.

C. Clarification to Grain Elevator Exemption

    This rule amends provisions of Wisconsin's construction and 
operation permit programs, NR 406.04(1) and NR 407.03(1), respectively, 
relating to an existing exemption for certain grain storage and 
processing facilities from needing to obtain a construction or 
operation permit. This clarification is necessary to ensure that 
facilities with column dryers and rack dryers that remain below the 
major source threshold for air permit programs are included in the 
exemption. This exemption does not apply to sources subject to New 
Source Performance Standards (NSPS), Standards of Performance for Grain 
Elevators, (40 CFR part 60, subpart DD) or subject to part 70 (40 CFR 
part 70).

D. Changes to Definitions, References, and Numbering

    Several other changes are being made to Wisconsin's construction 
and operation permit program rules, NR 406 and NR 407. Several sections 
are renumbered because of the addition of new provisions and 
definitions. Additional changes are being made to NR 410, Wisconsin's 
air permit fee rules. NR 410.03(1)(a)(5), related to the fees for a 
construction permit revision, is amended to exempt the fee if the 
requested revision is to make the source eligible for a registration 
operation permit. NR 410.03(1)(a)(6) and (7) provide that sources 
subject to Part 70 pay fees for coverage under a general or 
registration construction permit.

III. Do These Rules Comply With Federal Requirements?

    EPA reviewed Wisconsin's July 28, 2005, SIP revision submittal to 
determine completeness, in accordance with the completeness criteria 
set out at 40 CFR part 51, appendix V (1991), as amended by 57 FR 42216 
(August 26, 1991). We found the submittal to be complete, and sent a 
letter dated August 11, 2005, to the WDNR Bureau of Air Management 
Director indicating the completeness of the submittal.
    The next step in the review process was EPA's analysis of the 
State's submittal. EPA evaluated Wisconsin's general and registration 
permit programs with respect to the SIP approval criteria established 
in EPA's June 28, 1989, rulemaking ``Requirements for the Preparation, 
Adoption, and Submittal of Implementation Plans,'' (EPA's 1989 
rulemaking); Approval and Promulgation of Implementation Plans, 54 FR 
27274. In addition, EPA has evaluated portions of Wisconsin's rule with 
respect to relevant EPA guidance documents, as discussed in more detail 
below.
    The EPA's 1989 rulemaking criteria are as follows:
    1. The state operating permit program (i.e., the regulations or 
other administrative framework describing how such permits are issued) 
is submitted and approved by EPA into the SIP.
    2. The SIP imposes a legal obligation that operating permit holders 
adhere to the terms and limitations of such permits (or subsequent 
revisions of the permit made in accordance with the approved operating 
permit program.)
    3. The State operating permit program requires that all emissions, 
limitations, controls and other requirements imposed by such permits 
will be at least as stringent as any other applicable limitation or 
requirement contained in the SIP or enforceable under the SIP, and that 
the program may not issue permits that waive, or make less stringent, 
any limitation or requirement contained in or issued pursuant to the 
SIP, or that are otherwise `federally enforceable' (e.g., standards 
established under sections 111 and 112 of the Act).
    4. The limitations, controls, and requirements in the operating 
permits are permanent, quantifiable and otherwise enforceable as a 
practical matter.
    5. The permits are issued subject to public participation.

A. Evaluation of the General Permit Rule

    The general permit rule establishes the fundamental framework for 
the general permits to be issued by setting certain criteria for 
developing the permits, and criteria under which sources would qualify 
for coverage under the permits. WDNR will establish specific terms and 
conditions during the development of each general permit, which then 
will be standard for all sources that are covered under the permit.
    In the past, Wisconsin has issued general operation permits for 
certain source categories, such as rock crushers. WDNR now is 
establishing standard general construction permits with this rule, and 
revising its general operation permit program. EPA has the authority to 
enforce these types of permits if the permit program establishing them 
is approved into the SIP. EPA acknowledged in our July 10, 1995 
memorandum, ``White Paper for Streamlined Development of Part 70 Permit 
Applications,'' as well as in various other policy and guidance 
documents related to permitting, the development of general permits as 
a mechanism for streamlining.
    For example, EPA's April 14, 1998, memorandum ``Potential to Emit 
(PTE) Guidance for Specific Source Categories'' discusses approaches 
that permitting authorities can use to establish enforceable emission 
limits, such as general permits. Generally appropriate for less complex 
sources, states create a standard set of terms and conditions for many 
similar sources at the same time. Sources wishing to be subject to the 
general permit must provide a notification to the permitting agency, 
and must comply with the standard terms and conditions. This EPA 
memorandum also states that ``[i]n making any change to a minor NSR 
program, the State or local agency needs to address air quality impact 
considerations in addition to those discussed here.'' Additionally, 
Section 110 of the Act specifies that permit programs must ensure that 
the National Ambient Air Quality Standards (NAAQS) are protected.
    Wisconsin's submittal satisfies this requirement. Rules NR 
406.16(2)(c) and NR 407.10(2)(b), for general construction and general 
operation permits, respectively, state that a source is ineligible for 
coverage under a general permit if the emissions unit or units cause or 
exacerbate, or may cause or exacerbate, a violation of any ambient air 
quality standard or ambient air

[[Page 55066]]

increment, as determined by the WDNR through an air quality assessment.
    Another guidance document, EPA's January 25, 1995 memorandum 
``Guidance an Enforceability Requirements for Limiting Potential to 
Emit through SIP and section 112 Rules and General Permits'' (sic) 
(EPA's 1995 guidance) discusses general permit rule requirements. This 
guidance states that ``[a]lthough this concept [of general permits] is 
generally thought of as an element of Title V permit programs there in 
no reason that a state or local agency could not submit a general 
permit program as a SIP submittal aimed at creating synthetic minor 
sources.'' This guidance document further states that, although general 
permit programs can be separate from Title V permit programs, the 
issuance of general permits under the general permit program should 
comply with Title V procedures. Therefore, EPA will evaluate 
Wisconsin's general permit program with these procedures. That is, all 
general permits must meet certain legal and practical federal 
requirements. The guidance states ``[w]ith respect to legal 
sufficiency, the operating permit regulations provide that once the 
general permit has been issued, after opportunity for public 
participation and, EPA and affected State review, the permitting 
authority may grant or deny a sources request to be covered by a 
general permit without further public participation or EPA or affected 
State review.'' Id. at 4. Wisconsin's general construction permit rule 
provides for public participation at NR 406.16(1)(c), which states that 
WDNR shall use the applicable procedures in Wisconsin Statutes s. 
285.61 and s. 285.63 to issue a general construction permit. The 
general operation permit rule at NR 407.10(1)(c) states that WDNR shall 
use the applicable procedures in Statutes s. 285.62 to issue the 
general operation permit. Both of these statutes require that the WDNR 
distribute a notice of the availability of the proposed general permit 
and of the WDNR's analysis and preliminary determination, a notice of 
the opportunity for public comment and a notice of the opportunity to 
request a public hearing.
    The general permit rule also provides that the WDNR may grant or 
deny a source's request to be covered by a general permit. NR 
406.16(1)(c) and NR 407.10(1)(c), for general construction and 
operation permits, respectively, require the WDNR to prepare an air 
quality analysis and a preliminary determination on the approvability 
of the proposed general permit. Both NR 406.16(3)(c) and NR 
407.10(3)(c) state that WNDR must provide the applicant notice of 
WDNR's determination that the source is covered under the general 
permit; a description of any information that is missing from the 
application for the general permit; or notice of WDNR's determination 
that the source does not qualify for coverage and the reasons for that 
determination.
    EPA's 1995 guidance also specifies that the rule establishing the 
general permit program must require that: ``(1) General permits apply 
to a specific and narrow category of sources; (2) sources electing 
coverage under general permits where coverage is not mandatory, provide 
notice or reporting to the permitting authority; (3) general permits 
provide specific and technically accurate (verifiable) limits that 
restrict the potential to emit; (4) general permits contain specific 
compliance requirements; (5) limits in general permits are established 
based on practicably enforceable averaging times; and, (6) violations 
of the permit are considered violations of the state and federal 
requirements and result in the source being subject to major source 
requirements.'' Id. at 6.
    With respect to the first requirement above, NR 406.16(1)(b) and NR 
407.10(1)(b) contain criteria to define the types of sources for which 
WDNR can issue general construction and operation permits. These 
criteria serve to describe and narrow the sources for which WDNR may 
establish general permits.
    Regarding compliance with the second requirement of the 1995 
guidance, sources electing to be covered by Wisconsin's non-mandatory 
general construction or operation permits must submit applications to 
the WDNR, upon which the agency must act.
    Wisconsin's general permit program satisfies requirements 3 to 5 of 
the 1995 guidance regarding emission limits, compliance requirements, 
and averaging times. NR 406.16(1)(d) and NR 407.10(1)(d) require that 
the general construction and operation permits contain applicability 
criteria, emission limits, monitoring and record keeping requirements, 
reporting requirements, compliance demonstration methods and general 
conditions appropriate for the stationary source category.
    Regarding the sixth requirement, that violations of the permit 
should be considered violations of the applicable requirement that 
result in the source becoming subject to major source requirements, 
both NR 406.16(1)(d) and NR 407.10(1)(d) state that the general 
construction and operation permit include terms and conditions required 
to comply with the Act and required to assure compliance with 
applicable provisions in Wisconsin's statutes and regulations. In 
addition, NR 406.10, which is an existing provision of the Wisconsin 
SIP that addresses violations of a construction permit, states that a 
source that fails to construct and operate a stationary source in 
accordance with conditions imposed by the WDNR under Wisconsin statute 
s. 285.65 (which requires the establishment of permit conditions to 
ensure compliance with Wisconsin regulations and the Act) shall be 
considered in violation of Wisconsin statute 285.60. Wisconsin statute 
s. 285.60 requires air pollution control permits for new or modified 
sources, specifically a construction permit for commencing 
construction, reconstruction, replacement or modification of a 
stationary source, and an operation permit before any person can 
operate a new source or a modified source. Further, NR 407.09(1)(f), 
operation permit content, requires that permits include the following 
provision: The permittee must comply with all conditions of the permit 
and any noncompliance with the operation permit constitutes a violation 
of the statutes and is grounds for enforcement action; for permit 
suspension, revocation or revision; or for denial of a permit renewal 
application. The WDNR also retains the discretion to determine whether 
violations of a registration or general permit result in the source 
becoming subject to major source permitting requirements.
    With respect to EPA's 1989 rulemaking criteria discussed above, EPA 
has determined that Wisconsin's general permit program meets these 
criteria, as outlined below.
    1. Wisconsin submitted the regulations and administrative framework 
for the general permit rule, under NR 400, NR 406, NR 407, and NR 410, 
as a revision to its SIP on July 28, 2005. EPA's approval of this 
section would provide legal support for these permit programs and, 
would satisfy the first criterion.
    2. Wisconsin's rule imposes a legal obligation that permit holders 
adhere to the terms and limitations of the permits. NR 406.10, 
violations of a construction permit, states that a source that fails to 
construct and operate a stationary source in accordance with conditions 
imposed by the WDNR under Wisconsin statute s. 285.65, (which requires 
the establishment of permit conditions to ensure compliance with 
Wisconsin regulations and the Act,) shall be considered in violation of 
Wisconsin statute s. 285.60, (which requires the air pollution control 
permit.) Also, NR 407.09(1)(f), an existing SIP provision that 
addresses operation permit content,

[[Page 55067]]

requires that permits include the following provision: The permittee 
must comply with all conditions of the permit and any noncompliance 
with the operation permit constitutes a violation of the statutes and 
is grounds for enforcement action; for permit suspension, revocation or 
revision; or for denial of a permit renewal application. This satisfies 
the second approval criterion that the permittee must comply with the 
permit conditions.
    3. The permit program requires that all emissions, limitations, 
controls and other requirements imposed by permits will be at least as 
stringent as any other applicable limitation or requirement contained 
in the SIP or enforceable under the SIP. NR 406.16(1)(d) and NR 
407.10(1)(d) both require that the general permit contain applicability 
criteria, emission caps and limitations, monitoring and record keeping 
requirements, reporting requirements, compliance demonstration methods 
and general conditions appropriate for the source category; and, that 
the permit terms and conditions shall include those required to comply 
with the Act and those required to assure compliance with applicable 
provisions in Wisconsin's rules (ch. 285, Stats., and chs. NR 400 to 
499.) This provision satisfies the third criterion.
    4. The limitations, controls, and requirements in the permits will 
be permanent, quantifiable and otherwise enforceable as a practical 
matter. As discussed above, Wisconsin's general permit rule requires 
that WDNR provide a 30-day public comment on the proposed general 
permit, and it specifies that the general permit will contain 
applicability criteria, emission caps and limitations, monitoring and 
record keeping requirements, reporting requirements, compliance 
demonstration methods and general conditions appropriate for the source 
category. During the comment period, EPA has the opportunity to review 
the permit to ensure that the limitations, controls, and requirements 
in the permits are permanent, quantifiable and otherwise enforceable as 
a practical matter. Additionally, the general construction permits do 
not expire. For general operation permits, NR 407.10(1)(e) states that 
a general operation permit issued to a part 70 source category may not 
exceed 5 years, and that general operation permits issued to a non-part 
70 source category shall only expire if an expiration date is requested 
by the source owner or operator, or if the WDNR finds that expiring 
coverage would significantly improve the likelihood of continuing 
compliance with applicable requirements, compared to coverage that does 
not expire. Although the general operation permits can expire, the 
expiration ends the source's right to operate unless the permittee has 
submitted a timely and complete renewal application or WDNR has issued 
a renewed operation permit. Based on the reasons above, the fourth 
criterion is met.
    5. As discussed previously, Wisconsin's rule requires that the 
general permits are issued subject to public participation under NR 
406.16(1)(c) and NR 407.10(1)(c), for construction and operation 
permits, respectively. EPA has determined that, in cases where 
standardized permits have been adopted, EPA and the public need not be 
involved in their application to individual sources as long as the 
standard permits themselves have been subject to notice and opportunity 
to comment. EPA's 1995 guidance, on page 10. Specifically, EPA's 1995 
guidance states that ``since the rule establishing the program does not 
provide the specific standards to be met by the source, each general 
permit, but not each application under each general permit, must be 
issued pursuant to public and EPA notice and comment.'' Id. Wisconsin's 
general permit rule satisfies this criterion.
    Sources of HAPs may also be eligible for coverage under Wisconsin's 
general permit rule. NR 406.16(2) and NR 407.10(2), which describe the 
sources which are ineligible for coverage under a general construction 
or general operation permit, do not include sources of HAPS. Therefore, 
EPA is evaluating Wisconsin's general permit program under section 
112(l) of the Act for the purposes of creating federally enforceable 
limitations on the potential to emit HAPs.
    Several EPA guidance documents address this issue, including EPA's 
November 3, 1993, guidance document, ``Approaches to Creating Federally 
Enforceable Emissions Limits,'' which states on page 2 that a state 
permit program could be extended to create federally enforceable limits 
for emissions of HAPs if the program were approved pursuant to section 
112(l) of the Act. Also, EPA's 1995 guidance states on page 4 that a 
mechanism available to limit potential to emit is a general permit 
program approved into the SIP or under Section 112(1). Wisconsin's 
general permit program may limit HAP emissions in permits and therefore 
must also be evaluated with the approval criteria for programs limiting 
potential to emit of HAPs under 40 CFR part 63, subpart E, the 
regulations promulgated to implement section 112(l) of the Act. 40 CFR 
63.91(a)(5) states, ``[t]he Administrator may, under the authority of 
section 112(l) and this subpart, also approve a State program designed 
to establish limits on the potential to emit hazardous air pollutants 
listed pursuant to section 112 of the Act.''
    Section 112(l) allows EPA to approve a state's permit program only 
if it meets the following statutory criteria for approval under section 
112(l)(5): (1) It contains adequate authority to assure compliance with 
any section 112 standards, regulations, or requirements established 
under section 112, (2) it provides for adequate authority and resources 
to implement the program, (3) it provides for an expeditious schedule 
for assuring compliance with section 112 requirements, and, (4) it is 
otherwise in compliance with Agency guidance and is likely to satisfy 
the objectives of the Act.
    EPA has determined that Wisconsin's general permit program meets 
these 112(l) criteria as outlined below:
    First, Wisconsin's general permit program contains adequate 
authority to assure compliance with section 112 standards or 
requirements. Both NR 406.16(1)(d) and NR 407.10(1)(d) state that the 
general construction or operation permit shall contain applicability 
criteria, emission limits, monitoring and record keeping requirements, 
reporting requirements, compliance demonstration methods and general 
conditions; and that the permit terms and conditions shall include 
those required to comply with the Act and those required to assure 
compliance with applicable provisions in Wisconsin's regulations.
    Furthermore, Wisconsin Statutes s. 285 provides the authority for 
Wisconsin to administer and enforce all of its permit programs. Section 
285.11 specifies that the WDNR shall: ``(1) Promulgate rules 
implementing and consistent with this chapter and statute 299.15; * * * 
(18) Adopt and apply objective performance measurements, for the 
subunit of the department that administers this chapter, relating to 
the issuance of permits under subchapter VII and to overall performance 
of the subunit.'' In addition, section 285.13 specifies WDNR's powers, 
including ``* * * (2) Issue orders to effectuate the purposes of this 
chapter and statute 299.15 and enforce the same by all appropriate 
administrative and judicial proceedings.''
    For criterion 2, regarding adequate resources, NR 410.03(1)(a)(6) 
requires WDNR to collect fees from sources subject to 40 CFR Part 70 
that are

[[Page 55068]]

covered under the general construction permit. The general operation 
permit program also requires fees to be collected, as described in the 
July 26, 2005, State budget. The State anticipates that its new fee 
structure, adopted in this budget, will provide sufficient resources to 
administer the general permit program. WDNR has submitted this revised 
fee structure along with a fee sufficiency demonstration to EPA for 
review. EPA will monitor the State's implementation of the permit 
program to assure that adequate resources continue to be available.
    Wisconsin's general permit program also meets the third requirement 
for an expeditious schedule to assure compliance. Nothing in this 
program would allow a source to avoid or delay compliance with federal 
HAPs requirements if it fails to obtain the appropriate federally 
enforceable limit by the relevant deadline.
    Fourth, Wisconsin's general permit program is consistent with the 
objectives of the section 112 program, since its purpose is to enable 
sources to obtain federally enforceable limits on potential to emit. 
This is also consistent with the intent of the guidance documents 
discussed above.
    Based on the discussion above, EPA has determined that Wisconsin's 
general permit program is approvable under section 112(l). By approving 
Wisconsin's general permit program, EPA recognizes it as a federally 
enforceable method of limiting a source's potential to emit HAPs.

B. Evaluation of the Registration Permit Rule

    The registration permit rule establishes the general framework for 
the registration permits by setting certain criteria for developing the 
permits and criteria under which sources would qualify for coverage 
under the permits. Specific terms and conditions will be established 
during the development of each registration permit, which will then be 
standard for all sources that are covered under the permit.
    In the past, Wisconsin has placed federally enforceable synthetic 
minor limitations on sources through individual permits issued pursuant 
to a federally approved program. WDNR is now establishing standardized 
federally enforceable synthetic minor permits. EPA has the authority to 
enforce the terms of these permits if the permit program under which 
they are issued is approved into the SIP. EPA has acknowledged this 
approach for creating emission limitations and discussed various 
criteria that must be considered for approval in several policy and 
guidance documents related to creating federally enforceable emissions 
limits and approval of SIPs.
    As discussed above, various regulatory options exist for the 
creation of federally enforceable limits on potential to emit. Several 
guidance documents, including EPA's November 3, 1993, memorandum, 
``Approaches to Creating Federally Enforceable Emission Limits,'' 
summarize these options. Major NSR permits, minor NSR permits (if EPA 
has approved the NSR program into the SIP and the program meets certain 
procedural requirements), and operating permits based on programs 
approved into the SIP pursuant to the criteria in the June 28, 1989 
Federal Register (54 FR 27274), are available regulatory mechanisms.
    EPA's April 14, 1998, memorandum ``Potential to Emit (PTE) Guidance 
for Specific Source Categories'' also discusses on page 2 approaches 
that permitting authorities can use to establish enforceable emission 
limits which ensure that a source's potential emissions are below the 
major source threshold, such as using a general permit. Under its 
registration permit program, Wisconsin establishes permits which, like 
general permits, contain standardized conditions that will cap or limit 
source or unit emissions below a certain threshold. The guidance states 
that sources wishing to be subject to the standard permit must provide 
a notification to the permitting agency, and must comply with the 
standard terms and conditions. Wisconsin's registration permit program 
specifically requires sources to apply for coverage under NR 406.17(4) 
and NR 407.105(4), for registration construction and operation permits, 
respectively.
    EPA's April 14, 1998 memorandum states that, ``[i]n making any 
change to a minor NSR program, the State or local agency needs to 
address air quality impact considerations in addition to those 
discussed here.'' Id. at 6. Additionally, Section 110 of the Act 
specifies that permit programs must ensure that the NAAQS are 
protected.
    NR 406.17(3)(c) and NR 407.105(3)(c) for registration construction 
and operation permits, respectively, state that a source is ineligible 
for coverage under a registration permit if the emissions unit or units 
cause or exacerbate, or may cause or exacerbate, a violation of any 
ambient air quality standard or ambient air increment, as determined by 
the WDNR through an air quality assessment.
    EPA's 1995 guidance, as discussed in Section A, above, outlines 
general permit rule requirements. Again, this guidance states on page 3 
that ``[a]lthough this concept [of general permits] is generally 
thought of as an element of Title V permit programs there is no reason 
that a state or local agency could not submit a general permit program 
as a SIP submittal aimed at creating synthetic minor sources.'' The 
guidance further states on page 4 that ``[a]nother mechanism available 
to limit potential to emit is a general permit program approved into 
the SIP or under section 112(1).''
    This guidance document further states that, although general permit 
programs can be separate from Title V permit programs, the issuance of 
general permits should comply with Title V procedures. That is, all 
general permits must meet certain legal and practical requirements for 
federal enforceability. The guidance states on page 4 ``[w]ith respect 
to legal sufficiency, the operating permit regulations provide that 
once the general permit has been issued, after opportunity for public 
participation and, EPA and affected State review, the permitting 
authority may grant or deny a sources request to be covered by a 
general permit without further public participation or EPA or affected 
State review.'' Because Wisconsin's registration permit program is 
essentially a general permit that will contain standardized emissions 
limitations, we have evaluated it using the criteria from EPA's 1995 
guidance discussed above. Wisconsin's registration construction permit 
rule provides for public participation at NR 406.17(1)(b), which states 
that WDNR shall use the applicable procedures in Wisconsin Statutes s. 
285.61 to issue registration construction permits. NR 407.105(1)(b) 
states that WDNR shall use the applicable procedures in Statutes s. 
285.62 to issue registration operation permits. Both of these statutes 
require that the WDNR distribute a notice of the availability of the 
proposed registration permit and of the WDNR's analysis and preliminary 
determination, a notice of the opportunity for public comment and a 
notice of the opportunity to request a public hearing.
    Wisconsin's registration permit rules also provides that the WDNR 
may grant or deny a source's request to be covered by a registration 
permit. Both the registration construction and operation permit rules, 
at NR 406.17(1)(b) and NR 407.105(1)(b), respectively, state that the 
WDNR shall prepare an air quality analysis and a preliminary 
determination on the approvability of the proposed registration permit. 
NR 406.17(2) and NR 407.105(2) establish the criteria that the WDNR 
will use to determine if a facility is eligible for

[[Page 55069]]

coverage under a registration permit. Additionally, NR 406.17(4)(c) and 
NR 407.105(4)(c) require that WDNR provide notice of its determination 
that the source is covered under the registration permit; a description 
of any information that is missing from the application for coverage 
under the registration permit; or a notice of its determination that 
the source does not qualify for coverage, and the reasons for that 
determination.
    EPA's 1995 guidance specifies that the rule establishing the 
general permit program must require that: ``(1) General permits apply 
to a specific and narrow category of sources; (2) sources electing 
coverage under general permits where coverage is not mandatory, provide 
notice or reporting to the permitting authority; (3) general permits 
provide specific and technically accurate (verifiable) limits that 
restrict the potential to emit; (4) general permits contain specific 
compliance requirements; (5) limits in general permits are established 
based on practicably enforceable averaging times; and (6) violations of 
the permit are considered violations of the state and federal 
requirements and result in the source being subject to major source 
requirements.'' For the reasons explained previously, EPA will evaluate 
Wisconsin's registration permit program based upon these general permit 
program criteria with respect to establishing emissions limits.
    For the first criterion, registration permits will be available to 
types of sources that have low actual emissions and that meet other 
criteria. These types of sources may elect to limit their emissions to 
specified levels.
    Because coverage under Wisconsin's registration permit program is 
not mandatory, and sources electing to be covered by a general permit 
must submit an application to the WDNR which the agency must act on, 
the registration permit program complies with the second requirement.
    For requirements 3 to 5, regarding emission limits, compliance 
requirements, and averaging times, both NR 406.17(1)(c) and NR 
407.105(1)(c) require the registration construction or operation permit 
to contain applicability criteria, emission limits, monitoring and 
record keeping requirements, reporting requirements, compliance 
demonstration methods and general conditions.
    Regarding criterion 6, that violations of the permit should be 
considered violations of the applicable requirement, both NR 
406.17(1)(c) and NR 407.105(1)(c) state that the permit must include 
terms and conditions required to comply with the Act and required to 
assure compliance with applicable provisions in Wisconsin's statutes 
and regulations. In addition, NR 406.10, which governs violations of a 
construction permit, states that a source that fails to construct and 
operate a stationary source in accordance with conditions imposed by 
the WDNR under Wisconsin statutes. 285.65 (which requires the 
establishment of permit conditions to ensure compliance with Wisconsin 
regulations and the Act) will be considered in violation of Wisconsin 
statutes. 285.60, (which requires the air pollution control permit.) 
Also, NR 407.09(1)(f), operation permit content, requires permits to 
provide that the permittee must comply with all conditions of the 
permit and that any noncompliance with the operation permit constitutes 
a violation of the statutes and is grounds for enforcement action; for 
permit suspension, revocation or revision; or for denial of a permit 
renewal application. Therefore, EPA concludes that the portion of the 
Wisconsin's SIP which deals with registration permits complies with the 
1995 guidance.
    With respect to EPA's 1989 rulemaking criteria, discussed above, 
EPA has determined that Wisconsin's registration permit program meets 
these criteria as outlined below:
    1. Wisconsin submitted the regulations and administrative framework 
for the registration permit rule, under NR 400, NR 406, NR 407, and NR 
410, as a revision to its SIP on July 28, 2005. EPA's approval of this 
section would provide legal support for these permit programs and, 
would satisfy the first criterion.
    2. Wisconsin's rule imposes a legal obligation that permit holders 
adhere to the terms and limitations of the permits. Existing SIP 
provision NR 406.10, violations of a construction permit, states that a 
source that fails to construct and operate a stationary source in 
accordance with conditions imposed by the WDNR under Wisconsin 
statutes. 285.65, (which requires the establishment of permit 
conditions to ensure compliance with Wisconsin regulations and the 
Act), shall be considered in violation of Wisconsin statutes. 285.60, 
(which requires the air pollution control permit.) Also, existing SIP 
provision NR 407.09(1)(f), operation permit content, requires that 
permits provide that the permittee must comply with all conditions of 
the permit, and any noncompliance with the operation permit constitutes 
a violation of the statutes and is grounds for enforcement action; for 
permit suspension, revocation or revision; or for denial of a permit 
renewal application. This satisfies the second approval criterion which 
requires that permit holders abide by the permit conditions.
    3. The registration permit program requires that all emissions, 
limitations, controls, and other requirements imposed by permits will 
be at least as stringent as any other applicable limitation or 
requirement contained in the SIP or enforceable under the SIP. NR 
406.17(1)(c) and NR 407.105(1)(c) require that the registration 
construction and operation permits contain applicability criteria, 
emission caps and limitations, monitoring and record keeping 
requirements, reporting requirements, compliance demonstration methods 
and general conditions; and, that the permit terms and conditions shall 
include those required to comply with the Act and those required to 
assure compliance with applicable provisions in Wisconsin's rules (ch. 
285, Stats., and chs. NR 400 to 499.) This provision satisfies the 
third criterion.
    4. This criterion provides that limitations, controls, and 
requirements in the permits are permanent, quantifiable and otherwise 
enforceable as a practical matter. As discussed above, Wisconsin's 
registration rule requires that a 30-day public comment period be held 
on the proposed registration permit, and it specifies that the 
registration permit will contain applicability criteria, emission caps 
and limitations, monitoring and record keeping requirements, reporting 
requirements, compliance demonstration methods and general conditions. 
During the comment period, EPA has the opportunity to review the 
permits to ensure that the limitations, controls, and requirements in 
the permits are permanent, quantifiable and otherwise enforceable as a 
practical matter. Additionally, the registration permits do not expire. 
The registration permit program meets the fourth criterion for permit 
program approval.
    5. As discussed previously, Wisconsin's rule requires that the 
registration construction and registration operation permits are issued 
subject to public participation under NR 406.17(1)(b) and NR 
407.105(1)(b), respectively. EPA has determined that, in cases where 
standardized permits have been adopted, EPA and the public need not be 
involved in their application to individual sources as long as the 
standard permits themselves have been subject to notice and opportunity 
to comment. Specifically, EPA's 1995 guidance states on page 10, 
``since the rule establishing the program does not provide the specific 
standards

[[Page 55070]]

to be met by the source, each general permit, but not each application 
under each general permit, must be issued pursuant to public and EPA 
notice and comment.''
    Sources of HAPs also may be eligible for coverage under Wisconsin's 
registration permit rule. NR 406.17(2)(a)(1) and NR 407.105(2)(a)(1), 
the criteria for issuance of registration construction and operation 
permits, respectively, specify that the actual emissions from sources 
will not exceed 25% of any major source threshold in NR 407.02(4). NR 
407.02(4) includes sources that emit HAPs listed under section 112(b) 
of the Act. NR 406.17(3) and 407.105(3), which describe types of 
sources which are ineligible for coverage under registration 
construction and operation permits, does not include sources of HAPS. 
Furthermore, NR 406.17(3)(d) states that sources ineligible for 
registration construction permits include an emission unit or units 
subject to a standard or regulation under section 111 or 112 of the 
Act, other than those contained in the registration construction permit 
or those determined by WDNR not to preclude eligibility for the 
registration construction permit. Therefore, EPA is evaluating 
Wisconsin's registration permit program under section 112(l) of the Act 
for the purposes of creating federally enforceable limitations on the 
potential to emit HAPs.
    As discussed above, several EPA guidance documents address the 
creation of limitations on the potential to emit HAPs, including EPA's 
November 3, 1993, guidance document, ``Approaches to Creating Federally 
Enforceable Emissions Limits.'' This guidance states on page 2 that a 
state permit program could be extended to create federally enforceable 
limits for emissions of HAPs if the program were approved pursuant to 
section 112(l) of the Act. Also, EPA's 1995 guidance on page 4 states 
that a mechanism available to limit potential to emit is a general 
permit program approved into the SIP or under Section 112(1). Wisconsin 
may establish a registration permit to cap or limit HAP emissions in 
permits and, therefore, is eligible under the 1995 guidance for 
evaluation under 40 CFR part 63, subpart E, the regulations promulgated 
to implement section 112(l) of the Act, as a program that the state can 
use to limit a source's potential to emit HAPs. 40 CFR 63.91(a)(5) 
states that ``[t]he Administrator may, under the authority of section 
112(l) and this subpart, also approve a State program designed to 
establish limits on the potential to emit hazardous air pollutants 
listed pursuant to section 112 of the Act.''
    As discussed above, section 112(l) allows EPA to approve a state's 
permit program only if it meets the following the statutory criteria 
for approval under section 112(l)(5): (1) It contains adequate 
authority to assure compliance with any section 112 standards or 
requirements, (2) it provides for adequate resources, (3) it provides 
for an expeditious schedule for assuring compliance with section 112 
requirements, and, (4) it is otherwise likely to satisfy the objectives 
of the Act. EPA has determined that Wisconsin's registration permit 
program meets these 112(l) criteria as outlined below.
    First, Wisconsin's registration permit program contains adequate 
authority to assure compliance with section 112 standards or 
requirements. NR 406.17(1)(c) and NR 407.105(1)(c) both state that a 
registration construction or operation permit must contain 
applicability criteria, emission caps and limitations, monitoring and 
record keeping requirements, reporting requirements, compliance 
demonstration methods and general conditions; and that the permit terms 
and conditions shall include those required to comply with the Act and 
those required to assure compliance with applicable provisions in 
Wisconsin's regulations.
    Furthermore, Wisconsin Statutes s. 285 provides the authority for 
Wisconsin to administer and enforce all of its permit programs. Section 
285.11 specifies that the WDNR shall: ``(1) Promulgate rules 
implementing and consistent with this chapter and statute 299.15; * * * 
(18) Adopt and apply objective performance measurements, for the 
subunit of the department that administers this chapter, relating to 
the issuance of permits under subchapter VII and to overall performance 
of the subunit.'' In addition, section 285.13 specifies WDNR's powers, 
including ``* * * (2) Issue orders to effectuate the purposes of this 
chapter and statute 299.15 and enforce the same by all appropriate 
administrative and judicial proceedings.''
    For criterion 2, regarding adequate resources, NR 410.03(1)(a)(7) 
provides that sources subject to 40 CFR part 70 must pay fees for 
coverage under a registration construction permit. The registration 
operation permit also requires fees to be collected, as described in 
the July 26, 2005, state budget. The State anticipates that its new fee 
structure, adopted in this budget, will provide sufficient resources to 
administer the registration permit program. WDNR has submitted this 
revised fee structure along with a fee sufficiency demonstration to EPA 
for review. EPA will monitor the State's implementation of the permit 
program to assure that adequate resources continue to be available.
    Regarding the third requirement, Wisconsin's registration permit 
program provides for an expeditious schedule for assuring compliance. 
Nothing in this program would allow a source to avoid or delay 
compliance with the Federal requirement if it fails to obtain the 
appropriate federally enforceable limit by the relevant deadline.
    Fourth, Wisconsin's registration permit program is consistent with 
the objectives of the section 112 program, since its purpose is to 
enable sources to obtain federally enforceable limits on potential to 
emit. This also is consistent with the intent of the guidance documents 
discussed above.
    Based on the discussion above, EPA has determined that Wisconsin's 
registration permit program is approvable under section 112(l). By 
approving Wisconsin's registration permit program, EPA recognizes the 
program as a federally enforceable method of limiting a source's 
potential to emit HAPs.

C. Evaluation of the Clarification to Grain Elevator Exemption

    EPA reviewed Wisconsin's permit exemption with regard to its 
potential emissions and with respect to relevant EPA guidance, such as 
EPA's November 14, 1995, memorandum, ``Calculating the Potential to 
Emit (PTE) for Grain Handling Facilities.'' The WDNR provided EPA with 
additional documentation regarding its grain storage and grain handling 
facilities exemption in a May 31, 2005, internal memorandum which 
contains its PTE calculations for these permit exemptions. This 
document demonstrates and clarifies the following: Only non-part 70 
sources are eligible for the air operation permit exemptions; only non-
NSPS sources are eligible for the air construction and operation permit 
exemptions; air emission calculations for the ``worst case'' facility 
exempt from operation permit requirements demonstrate that the 
Particulate Matter (PM-10) emission rate is 29.6 tons per year, which 
is below the 100 tons per year part 70 major source threshold level; 
air emission calculations for the ``worst case'' facility exempt from 
construction permit requirements demonstrate that the PM-10 emission 
rate is 8.8 tons per year; and sources subject to PSD are excluded from 
the construction permit exemptions in ch. NR 406, Wis. Adm.

[[Page 55071]]

Code. Based on this information, EPA is proposing to approve these 
exemptions.

D. Evaluation of the Changes to Definitions, References, and Numbering

    Several definitions were created or amended due to the creation of 
the general and registration permit programs. In addition, several 
regulatory citations were revised as well as other administrative 
changes related to the registration and general permit programs. All of 
the changes, as described in Part I, Section D, ``Changes to 
Definitions, References, and Numbering'', are consistent with 
Wisconsin's statutes and the Act.

IV. What Action Is EPA Taking Today?

    EPA is proposing to approve revisions to Wisconsin SIP rules NR 
400, 406, 407, and 410 submitted by the State on July 28, 2005. EPA 
also is soliciting comment on this proposed approval.

V. Statutory and Executive Order Reviews

Executive Order 12866; Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed action is not a ``significant regulatory action'' and 
therefore is not subject to review by the Office of Management and 
Budget.

Executive Order 13211: Actions That Significantly Affect Energy Supply, 
Distribution, or Use

    Because it is not a ``significant regulatory action'' under 
Executive Order 12866 or a ``significant energy action,'' this action 
also is not subject to Executive Order 13211, ``Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use'' (66 FR 28355, May 22, 2001).

Regulatory Flexibility Act

    This action merely proposes to approve state law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. Accordingly, the Administrator certifies that 
this proposed rule will not have a significant economic impact on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.).

Unfunded Mandates Reform Act

    Because this action proposes to approve pre-existing requirements 
under state law and does not impose any additional enforceable duty 
beyond that required by state law, it does not contain any unfunded 
mandate or significantly or uniquely affect small governments, as 
described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

Executive Order 13175 Consultation and Coordination With Indian Tribal 
Governments

    This proposed action does not have tribal implications because it 
will not have a substantial direct effect on one or more Indian tribes, 
on the relationship between the Federal Government and Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal Government and Indian tribes, as specified by Executive Order 
13175 (65 FR 67249, November 9, 2000).

Executive Order 13132 Federalism

    This proposed action does not have Federalism implications because 
it does not have substantial direct effects on the states, on the 
relationship between the national government and the states, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132 (64 FR 43255, August 
10, 1999). This action merely proposes to approve a state rule 
implementing a federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Act.

Executive Order 13045 Protection of Children From Environmental Health 
and Safety Risks

    This proposed approval is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not a significant 
regulatory action under executive order 12866.

National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTA), 15 U.S.C. 272, requires federal agencies to use 
technical standards that are developed or adopted by voluntary 
consensus to carry out policy objectives, so long as such standards are 
not inconsistent with applicable law or otherwise impracticable. In 
reviewing program submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the Act. Absent a prior 
existing requirement for the state to use voluntary consensus 
standards, EPA has no authority to disapprove a program submission for 
failure to use such standards, and it would thus be inconsistent with 
applicable law for EPA to use voluntary consensus standards in place of 
a program submission that otherwise satisfies the provisions of the 
Act. Therefore, the requirements of section 12(d) of the NTTA do not 
apply.

Civil Justice Reform

    As required by section 3 of Executive Order 12988 (61 FR 4729, 
February 7, 1996), in issuing this rule, EPA has taken the necessary 
steps to eliminate drafting errors and ambiguity, minimize potential 
litigation, and provide a clear legal standard for affected conduct.

Governmental Interference With Constitutionally Protected Property 
Rights

    EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 
1988) by examining the takings implications of the rule in accordance 
with the ``Attorney General's Supplemental Guidelines for the 
Evaluation of Risk and Avoidance of Unanticipated Takings'' issued 
under the executive order, and has determined that the rule's 
requirements do not constitute a taking.

Paperwork Reduction Act

    This proposed action does not impose an information collection 
burden under the provisions of the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

    Dated: September 12, 2005.
Bharat Mathur,
Acting Regional Administrator, Region 5.
[FR Doc. 05-18722 Filed 9-19-05; 8:45 am]
BILLING CODE 6560-50-P
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