[Federal Register: December 4, 2007 (Volume 72, Number 232)]
[Proposed Rules]
[Page 68119-68121]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04de07-27]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2007-0717; FRL-8501-6]
Approval and Promulgation of Air Quality Implementation Plans;
Wisconsin; Approval of Construction Permit Waiver
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 Wisconsin Department of
Natural Resources (WDNR) on May 1, 2007. The WDNR has submitted for
approval into its SIP a revision which allows the State to issue a
waiver to a source allowing it to commence construction prior to a
construction permit being issued, in certain cases. This provision is
only allowed for minor sources which meet specific criteria, and WDNR
must follow established procedures to grant a waiver. In addition, the
revision also contains changes to Wisconsin's fee provisions to allow a
fee to be charged for the waiver. EPA is proposing to approve this
revision because it is consistent with Federal regulations governing
state permit programs.
DATES: Comments must be received on or before January 3, 2008.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2007-0717, by one of the following methods:
1. http://www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. E-mail: blakley.pamela@epa.gov.
3. Fax: (312)886-5824.
4. Mail: Pamela Blakley, Chief, Air Permits Section, Air Programs
Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson
Boulevard, Chicago, Illinois 60604.
5. Hand Delivery: Pamela Blakley, Chief, Air Permits Section, Air
Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West
Jackson Boulevard, Chicago, Illinois 60604. Such deliveries are only
accepted during the Regional Office normal hours of operation, and
special arrangements should be made for deliveries of boxed
information. The Regional Office 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 Docket ID No. EPA-R05-OAR-
2007-0717. 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://www.regulations.gov, 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 http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, 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 http://www.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. For additional instructions on submitting
comments, go to Section I of the SUPPLEMENTARY INFORMATION section of
this document.
Docket: All documents in the docket are listed in the http://www.regulations.gov
index. Although listed in the index, some
information is not publicly available, e.g. CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Environmental Protection
Agency, Region 5, Air and Radiation Division, 77 West Jackson
Boulevard, Chicago, Illinois 60604. This
[[Page 68120]]
facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday,
excluding legal holidays. We recommend that you telephone Susan
Siepkowski, Environmental Engineer, at (312) 353-2654 before visiting
the Region 5 office.
FOR FURTHER INFORMATION CONTACT: Susan Siepkowski, Environmental
Engineer, Air Permits Section, Air Programs Branch (AR-18J),
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604, (312) 353-2654, siepkowski.susan@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. This supplementary information
section is arranged as follows:
I. What Should I Consider as I Prepare My Comments for EPA?
II. What Has Wisconsin Submitted?
III. Does This Submittal Comply With Federal Regulations?
IV. What Action Is EPA Taking Today?
V. Statutory and Executive Order Reviews.
I. What Should I Consider as I Prepare My Comments for EPA?
When submitting comments, remember to:
1. Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date and page number).
2. Follow directions--The EPA may ask you to respond to specific
questions or organize comments by referencing a Code of Federal
Regulations (CFR) part or section number.
3. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
4. Describe any assumptions and provide any technical information
and/or data that you used.
5. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
6. Provide specific examples to illustrate your concerns, and
suggest alternatives.
7. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
8. Make sure to submit your comments by the comment period deadline
identified.
II. What Has Wisconsin Submitted?
On May 1, 2007, WDNR submitted a SIP revision request to EPA for
approval. The submittal requests that EPA approve the following
revisions to WDNR's SIP: to renumber and amend NR 406.03, to amend NR
410.03(intro.) and to create NR 406.03(2) and NR 410.03(l)(bm). These
changes would allow WDNR to issue a waiver to a source allowing it to
commence construction prior to a construction permit being issued.
These revisions also contain changes to Wisconsin's fee provisions to
allow a fee to be charged for the waiver.
The WDNR held two public hearings in August 2006 and the comment
period for this rule closed on August 18, 2006. The WDNR proposed this
rule revision to the Wisconsin Natural Resources Board for adoption,
and the Board approved the final rule on March 22, 2007.
Wisconsin Rule NR 406 contains the requirements and procedures for
construction permits. The revisions to NR 406.03 require the following
conditions to be satisfied before the State may grant a source a
waiver: (1) A complete construction permit application has been
submitted for the source; (2) the source and the proposed project will
result in the source remaining a true minor source (no synthetic minor
or netting permits); (3) the waiver requests must demonstrate that
undue hardship will result if the waiver is not granted. Undue hardship
may result from adverse weather conditions, catastrophic damage of
existing equipment, a substantial financial hardship that may preclude
the project in its entirety, and other unique conditions; (4) the
source is not located or to be located within 10 kilometers of a Class
I area.
The rule further states that a waiver does not obligate the WDNR to
ultimately approve the project, or relieve the source from compliance
with any applicable regulation. Finally, if a waiver is granted and the
source proceeds with construction, the rule specifies that it is doing
so at its own risk, and the source may not operate until the permit is
issued. WDNR may rescind a waiver if the owner or operator does not
diligently respond to inquiries on the construction permit application
or if WDNR preliminarily determines that the source will not meet the
criteria for permit approval.
Additional changes are being made to NR 410, Wisconsin's air permit
fee rules, to include fees for waivers. NR 10.03(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.
III. Does This Submittal Comply With Federal Regulations?
EPA reviewed Wisconsin's May 1, 2007, 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.
EPA evaluated Wisconsin's waiver rule 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 WDNR's rule with respect to relevant Federal rules and
guidance documents, as discussed in more detail below.
Section 165 of the Clean Air Act (Act) sets forth preconstruction
requirements for the Prevention of Significant Deterioration (PSD)
program. Specifically, ``(a) No major emitting facility on which
construction is commenced after the date of the enactment of this part,
may be constructed in any area to which this part applies unless (1) a
permit has been issued for such proposed facility in accordance with
this part setting forth emission limitations for such facility which
conform to the requirements of this part.''
However, this requirement only applies to major sources, and no
such restriction is specified under the minor New Source Review (NSR)
program requirements, which are set forth in 40 CFR 51.160. In
addition, EPA has made determinations which further support that
construction may begin before a permit is issued for minor sources. For
example, EPA's October 10, 1978, memorandum from Edward E. Reich to
Thomas W. Devine in Region 1 discusses preconstruction activities
allowed at a site with both PSD and non-PSD sources. This memo states
that construction may begin on PSD-exempt projects before the permit is
issued.
Furthermore, EPA approved a rule for Idaho's permit program which
allowed construction to commence prior to a permit being issued. (See
68 FR 2217, final rule.) The August 13, 2002, Federal Register proposed
approval of Idaho's rule, Section 213, regarding construction prior to
final permit issuance, states:
Section 213, entitled ``Pre-Permit Construction'' allows
construction to commence on certain non-major sources and non-major
modifications prior to receiving a final permit to construct,
provided certain conditions are met. EPA believes that this
provision is consistent with the requirements of section
110(a)(2)(C) of the CAA and 40 CFR 51.160, including 40 CFR
51.160(b), which requires States to have legally
[[Page 68121]]
enforceable procedures to prevent construction or modification of a
source if it would violate any SIP control strategies or interfere
with attainment or maintenance of the NAAQS. (See 67 FR 52666).
WDNR's rule revision provides that waivers can only be granted for
minor sources, and the rule complies with EPA's minor source NSR rules
set forth at 40 CFR 51.160. The minor source NSR rules require a state
to have a program: (1) To determine ``whether construction or
modification'' of a source will interfere with the SIP or attainment or
maintenance of the National Ambient Air Quality Standards (NAAQS); and,
(2) that includes procedures to ``prevent the construction or
modification'' of the source if it would interfere with the SIP or
attainment or maintenance of the NAAQS. WDNR will have enforceable
procedures to prevent construction or modification of a source if it
would violate any SIP requirement, or interfere with attainment or
maintenance of the NAAQS. Additionally, WDNR can rescind a waiver if
the source does not meet the criteria in Wis. Statute 285.63(1), which
contain the criteria for permit application approval, including that
the source will not cause or exacerbate a violation of any NAAQS or
ambient air increment, and that the source will meet all applicable
emission limitations and other requirements promulgated under the
chapter.
Finally, the rule contains the following additional safeguards.
First, granting a waiver does not obligate the WDNR to ultimately
approve the proposed project, or relieve the source from compliance
with any applicable regulation. Second, if a waiver is granted and the
source proceeds with construction, the rule specifies that it is doing
so at its own risk, and the source may not operate until the permit is
issued.
Based on EPA's regulations and guidance, and the reasons set forth
above, we believe that WDNR's SIP revision is approvable.
IV. What Action Is EPA Taking Today?
EPA is proposing to approve revisions to Wisconsin SIP rules NR 406
and 410 submitted by the State on May 1, 2007. 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, September 30, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget.
Paperwork Reduction Act
This proposed rule does not impose an information collection burden
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.).
Regulatory Flexibility Act
This proposed 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 rule 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 13132: Federalism
This action also 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 13175: Consultation and Coordination With Indian Tribal
Governments
This proposed rule also 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 13045: Protection of Children From Environmental Health
and Safety Risks
This proposed rule also 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 proposes approval of
a state rule implementing a Federal standard.
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 regulatory action,'' this
action is also not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001).
National Technology Transfer Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), 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 impractical. In
reviewing SIP 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 SIP 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 NTTAA do not
apply.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: November 23, 2007.
Gary Gulezian,
Acting Regional Administrator, Region 5.
[FR Doc. E7-23482 Filed 12-3-07; 8:45 am]
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