Approval and Promulgation of Implementation Plans; Wisconsin

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[W12-2-5550; FRL-4821-2]

Approval and Promulgation of Implementation Plans; Wisconsin

AGENCY: United States Environmental Protection Agency (USEPA).

ACTION: Notice of proposed rule.

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SUMMARY: USEPA is proposing to disapprove the State of Wisconsin's

Prevention of Significant Deterioration (PSD) Rules, Natural Resources

(NR) 405.01 through 405.17, as a revision to the Wisconsin State

Implementation Plan (SIP). The State developed the rules as Wisconsin's

plan to prevent significant deterioration of air quality in areas

designated as unclassifiable or attainment of the National Ambient Air

Quality Standards (NAAQS) and to satisfy the requirements of part C of

the Clean Air Act (Act). USEPA proposes to disapprove these rules

because they do not meet USEPA's regulation governing State PSD

programs (40 CFR 51.166). Until USEPA approves a SIP submission from

Wisconsin satisfying these requirements, the Federal PSD requirements

at 40 CFR 52.21 remain applicable within the State of Wisconsin.

DATES: Comments on this revision and on the proposed USEPA action must

be received by March 7, 1994.

ADDRESSES: Written comments should be sent to: Carlton Nash, Chief,

Regulation Development Section, Air Toxics and Radiation Branch (AT-

18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson

Boulevard, Chicago, Illinois 60604. Please submit an original and five

(5) copies, if possible.

Copies of the SIP revision request and USEPA's analysis are

available at the following address for review: U.S. Environmental

Protection Agency, Region 5, Air Toxics and Radiation Branch (AT-18J),

77 West Jackson Boulevard, Chicago, Illinois 60604. It is recommended

that you telephone Constantine Blathras at (312) 886-0671, before

visiting the Region 5 Office.

FOR FURTHER INFORMATION CONTACT: Constantine Blathras, Grants

Management and Program Evaluation Section, Air Toxics and Radiation

Branch (AT-18J), U.S. Environmental Protection Agency, Region 5,

Chicago, Illinois 60604, (312) 886-0671.

SUPPLEMENTARY INFORMATION:

I. Background

The 1977 Amendments to the Clean Air Act added part C to title I,

which required implementation of a PSD program. On June 19, 1978 USEPA

promulgated a PSD program to meet the requirements of part C. It

promulgated 40 CFR 51.24 (now 40 CFR 51.166), which listed the

requirements a State must meet in order to have a State PSD program

approved as a part of its SIP. It promulgated 40 CFR 52.21, which

contains the procedures and requirements which USEPA follows when it

carries out the mandates of part C itself. These Sec. 52.21

requirements were then promulgated into those State SIPs where a State

did not have an approvable plan in place. Section 52.21 provides that

its requirements and authorities, or parts thereof, can be delegated to

the State and local air programs if USEPA determines they have the

ability and authority to carry out its mandates.

On June 19, 1978 (43 FR 26410), USEPA promulgated the Federal PSD

program, 40 CFR 52.21(b) through (v), into the Wisconsin SIP at 40 CFR

52.2581 because Wisconsin had not submitted an approvable PSD program.

On August 19, 1980 USEPA gave Wisconsin partial delegation to run the

Federal PSD Program and on November 13, 1987 gave Wisconsin full

delegation of the program.

Seeking a SIP approval of the State's PSD Program, the Wisconsin

Department of Natural Resources (WDNR) submitted its PSD rules, NR

405.01 through NR 405.17, to USEPA as a revision to its SIP on March

16, 1987. A further revision to these rules, which addresses oxides of

nitrogen (NOx), was submitted on November 24, 1992.

Wisconsin NR 405 deals exclusively with PSD permitting

requirements.\1\ USEPA evaluated NR 405 by comparing each section of

the rule to the appropriate paragraph of 40 CFR 51.166 (formerly 40 CFR

51.24). Although Wisconsin's PSD rules essentially incorporated the

Federal PSD provisions in 40 CFR 51.166, USEPA's evaluation revealed

deficiencies relative to references to New Source Performance Standards

(NSPS), National Emissions Standards for Hazardous Air Pollutants

(NESHAP), federally issued PSD permits, source-specific allowable

emissions, and modeling guidelines.

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\1\Chapter NR 405 applies the PSD regulation within the total

area of the State of Wisconsin. Court decisions have determined that

State governments do not have jurisdiction over most Indian lands.

This in itself does not affect USEPA's proposal to disapprove the

rule, but would have to be addressed by Wisconsin if it submitted a

revised rule.

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II. USEPA's Evaluation of the Proposed Revision

A. NSPS and NESHAP

The Federal PSD definitions at 40 CFR 51.166 pertaining to: (1)

``Best Available Control Technology'' (BACT), (2) ``Allowable

emissions'', (3) ``Federally enforceable'', and (4) the control

technology review requirements make reference to applicable standards

and standards of performance under 40 CFR part 60 (NSPS) and 40 CFR

part 61 (NESHAP), respectively. In the comparable provisions of the

State rule, the State refers to other NR 400 series chapters, i.e., NR

440, 445 to 499, and 400 to 499 of the State code. Although the State

may have intended that these chapters approximate the requirements of

40 CFR parts 60 and 61, Wisconsin's NSPS and NESHAP regulations are not

federally enforceable and may, in certain circumstances, differ

significantly from the parts 60 and 61 requirements in the Federal PSD

requirements. The references to parts 60 and 61 in the Federal PSD

requirements for BACT and control technology review

(Secs. 51.166(b)(12) and 51.166(j)(1), respectively) set minimum

emissions requirements. Because the State can set less stringent NSPS

and NESHAP emission limits than the Federal standards, or not set any

limits at all, the State PSD provisions which are dependent upon the

requirements of Chapter 440 and Chapters 445 to 449 are not approvable.

B. Stack Height

The provisions in 40 CFR part 51, subpart I--``Revision of New

Sources and Modifications'' set forth both general and specific

requirements for permitting PSD sources, including definitions. In

order for the State to implement the stack height provision in

accordance with 40 CFR 51.164 and 51.166(h), it must have definitions

of such terms as ``stack'', ``dispersion technique'', and ``good

engineering practice''. On November 6, 1985, the State submitted a

letter stating that permits issued for new or modified sources will

conform with the requirements with the Stack Height Regulation, as set

forth in the Federal Register on July 8, 1985, until such time that the

State promulgates its own rule. As submitted, this provision meets the

stack height requirements of the PSD program, and USEPA approved

Wisconsin's commitment on August 4, 1989 (54 FR 32074), as a portion of

Wisconsin's stack height plan.

C. Federally Issued PSD Permits

In the State's definition of ``major modifications'', NR

405.02(21)(b)(6), the rule exempts an increase in hours of operation or

in production rates from review unless such increases are prohibited by

permits issued after January 6, 1975, under NR 405. This rule is

deficient for not requiring review of sources with such increases if

the increases were prohibited by previously issued Federal permits or

during the period when EPA issued the permits prior to the delegation

of the program's authority. The State rule only exempts from the

exclusion those permits with conditions ``pursuant to this chapter'',

which is in the Wisconsin rule. There is no requirement for review of

modifications to federally issued permits with exemptions pursuant to

40 CFR 52.21. As submitted, this provision is not approvable as a PSD

rule.

D. Source-Specific Allowable Emissions

NR 405.02(1) contains the term ``source-specific allowable

emissions''. The meaning of the term is unclear. The Federal rule

depends upon the preamble language published in the Federal Register on

August 7, 1980 (Vol. 45, No. 154), to qualify the term to exclude cases

where data on actual emissions are available. The language in NR

405.02(1) would have to be clarified so that the State term has the

same meaning as the Federal term. This provision is not approvable in

its present form.

E. PSD Increments

The State PSD increments for sulfur dioxide and particulate matter

are found in Chapter NR 404.05. The increments were not included in

Wisconsin's March 16, 1987 PSD SIP submittal, but were included in its

November 24, 1992 submittal.

F. Modeling Guidelines

The modeling guidelines referenced in NR 405.10 are now outmoded,

although they were current at the time of submittal. To make NR 405.10

approvable, it would either have to reference the most recent

guidelines (See 40 CFR 165(l)) or state that the applicant must use

USEPA's most current applicable guideline models. Although the modeling

guidelines were current at the time of submittal, this deficiency would

need to be addressed if Wisconsin were to resubmit the rule as a SIP

revision.

G. Nitrogen Dioxide (NO2) Increments

On October 17, 1988 (53 FR 40656), USEPA promulgated PSD air

quality increments for NO2. The States were required to submit to

USEPA by July 17, 1990, plan revisions to protect the NO2

increments. Wisconsin submitted such increments to USEPA on November

24, 1992. This submittal meets the NOX increment requirements and

is approvable.

H. Particulate Matter (PM) Significant Level

On July 1, 1987 (52 FR 24713), USEPA promulgated the significant

level for PM at 15 tons per year. Wisconsin submitted two PM SIP

revisions on March 13, 1989 and May 10, 1990 to meet the Federal PM

requirements. These submittals were proposed for approval on March 13,

1989 (NR 400.02, 404.02, 405.02, 406.04, 484.03) which contain the PM

significant level, and May 10, 1990 (NR 404.04, 484.03). USEPA then

proposed to disapprove the package on December 23, 1992. After

receiving comments from the State, USEPA moved to approve the package.

The final rulemaking approving these rules was published on June 28,

1993 (58 FR 34528).

Proposed Action

Because of the deficiencies noted above, USEPA is proposing to

disapprove Wisconsin's Prevention of Significant Deterioration Permit

Program as not meeting the requirements of part C of the Clean Air Act.

The Agency reviewed this PSD SIP revision request for conformance

with the provisions of the 1990 Amendments enacted on November 15,

1990. The Agency has determined that this action did not conform with

the statute before it was amended, that the Amendments did not in any

way affect this determination, and that the revision does not conform

to the Act, as amended. If resubmitted, Wisconsin's PSD SIP submission

should include all requirements and changes added by the 1990

Amendments. Thus, USEPA is proposing that the revision be disapproved.

Pursuant to the provisions of 5 U.S.C., section 605(b), I certify

that this action will not have a significant economic impact on a

substantial number of small entities (see 46 FR 8709). If USEPA were to

disapprove this rule, its disapproval would not have a significant

economic impact on a substantial number of small entities because

USEPA's PSD program remains in effect under delegated authority.

Sources would remain subject to the same requirements.

Under Executive Order 12291, this action is not ``Major''. It has

been submitted to the Office of Management and Budget (OMB) for review.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Intergovernmental relations, Lead, Nitrogen dioxide,

Ozone, Particulate matter, Sulfur oxides.

Authority: 42 U.S.C. 7401-7671q.

Dated: November 15, 1993.

Valdas V. Adamkus,

Regional Administrator.

[FR Doc. 94-75 Filed 1-3-94; 8:45 am]

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