MichaelBest: On December 18, 2012, the United States Environmental Protection Agency (EPA) issued a proposed decision that would disapprove the Wisconsin Department of Natural Resources (WDNR) rules for implementing permitting requirements associated with the National Ambient Air Quality Standard (NAAQS) for fine particulate matter (PM2.5)1. EPA identified possible deficiencies related to WDNR's authority to regulate condensable gases and potential PM2.5 precursors (such as SO2 and NOx). Most interesting and potentially significant to Wisconsin stationary sources is EPA's rationale for concluding that Wisconsin rules are deficient.
Asserted Deficiencies in WDNR Rules Concerning Condensable Gases
EPA requires that each state create rules containing "explicit language" documenting that particulate matter (PM) emissions, PM2.5 emissions and PM10 emissions "include gaseous emissions from a source or activity which condense to form particulate matter in ambient temperatures." To this end, EPA required states to account for these so-called condensable particulate matter emissions in their state PSD permitting programs starting on January 1, 2011.
In May 2011, WDNR submitted to EPA a rule package related to the PSD permitting of condensable particulate matter. WDNR asked that EPA approve these rules for inclusion in the Wisconsin state implementation plan (SIP). In the preamble to EPA's December 18, 2012 proposed disapproval of these rules, EPA concluded that Wisconsin's SIP rules do not contain "explicit" language to account for PM2.5 and PM10 condensable emissions in permitting decisions.2 EPA acknowledged that Wis. Admin. Code Chapter NR 439 does include reporting, record keeping, testing, inspection and compliance determination requirements for condensable particulate matter. However, EPA concluded that NR 439 was only approved for inclusion in the Wisconsin SIP for purposes of implementing NR 419 through 425, not Wisconsin's permitting requirements in NR 405 through 408.
Asserted Deficiencies in WDNR Rules Concerning PM2.5 Precursor Emissions
EPA requires each state to promulgate rules "explicitly" identifying the precursors of PM2.5 as being within the definition of "regulated NSR air contaminant" and thereby subject to PSD permitting obligations. In May 2011, WDNR submitted to EPA a rule package which included a definition of "regulated NSR air contaminant" and asked that EPA approve the rules for inclusion in the Wisconsin SIP. In the preamble to EPA's December 18, 2012 proposed disapproval of these rules, EPA asserts that WDNR's definitions do not "explicitly" identify SO2 and NOx as precursors to PM2.5 that are regulated by the Wisconsin PSD program.
77 Fed. Reg. 74,817 (Dec. 18, 2012).
2 EPA reached a similar conclusion in a final rule disapproving of the Wisconsin PM SIP. 77 Fed. Reg. 65,478 (Oct. 29, 2012).
Possible Impact of EPA's Decision...
Please read on at:
http://www.michaelbest.com/pubs/pubDetailMB.aspx?xpST=PubDetail&pub=3229
