[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