[Federal Register Volume 64, Number 102 (Thursday, May 27, 1999)]
[Rules and Regulations]
[Pages 28745-28748]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-13386]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[WI74-01-7303; FRL-6336-8]


Approval and Promulgation of Implementation Plans; Wisconsin

AGENCY: Environmental Protection Agency.

ACTION: Notice of final rulemaking.

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SUMMARY: The purpose of this action is a final rulemaking on the State 
of Wisconsin's Prevention of Significant Deterioration (PSD) rules, 
Natural Resources (NR) 405.01 through NR 405.17, as a revision to the 
Wisconsin State Implementation Plan (SIP). The State developed these 
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).
    The Environmental Protection Agency (EPA) is approving these rules 
because they meet EPA's regulations governing State PSD programs (40 
CFR 51.166). In addition to the PSD rules, Wisconsin has submitted 
rules as a revision to the SIP to establish breathable particulates 
(PM-10) as a basis for the determination of particle concentrations for 
permitting purposes under the PSD program and, therefore, tie the new 
source permit evaluations directly to human health standards. Finally, 
Wisconsin submitted revisions to its existing SIP that are intended to 
correct errors in content and style, to improve consistency, and to 
clarify existing policy and procedures.

DATES: This rule will be effective June 28, 1999.

ADDRESSES: Copies of the State's submittal and other supporting 
information used in developing the revision are available for 
inspection during normal business hours at the following location: EPA 
Region 5, 77 West Jackson Boulevard, AR-18J, Chicago, Illinois 60604. 
Please contact Constantine Blathras at (312) 886-0671 to arrange a time 
if inspection of these materials is desired.
    Copies of the submittal are also located at the Bureau of Air 
Management, Wisconsin Department of Natural Resources, 101 South 
Webster Street, P.O. Box 7921, Madison, Wisconsin 53707.

FOR FURTHER INFORMATION CONTACT: Constantine Blathras, AR-18J, 77 West 
Jackson Boulevard, Chicago, Illinois 60604, (312) 886-0671.


[[Page 28746]]


SUPPLEMENTARY INFORMATION:

I. Background and Purpose

    The 1977 Amendments to the Act added part C to Title I, which 
required implementation of a PSD program. On June 19, 1978, EPA 
promulgated the Federal PSD program, 40 CFR 52.21, which contains the 
procedures and requirements which EPA itself follows when it carries 
out the mandates of part C. EPA approved the section 52.21 requirements 
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 
part thereof, can be delegated to State and local air programs if EPA 
determines that they have the ability and authority to carry out its 
mandates.
    On June 19, 1978, (43 FR 26410), EPA approved the Federal PSD 
program, 40 CFR 52.21 (b) through (w), into the Wisconsin SIP at 40 CFR 
52.2581 because Wisconsin had not submitted an approvable PSD program. 
On August 19, 1980, EPA gave Wisconsin partial delegation to run the 
Federal PSD program and on November 13, 1987, gave Wisconsin full 
delegation of the program, except for sources in Indian country. EPA 
did not explicitly delegate to the State the program for any area of 
Indian country.
    Wisconsin's PSD and PM-10 rules which are finalized do not apply in 
Indian country as defined at 18 U.S.C. 1151. Section 301(d) of the Act 
authorizes the Administrator to determine which provisions are 
appropriate for Tribes to administer and to promulgate regulations as 
to how Tribes can assume these authorities. EPA proposed such 
regulations on August 25, 1994 (59 FR 43956). The Tribal authority rule 
was promulgated on February 12, 1998 (63 FR 7254). The preamble to this 
rule clarifies that, under the authority of several Act provisions 
including section 301(d)(4), EPA will continue to implement Act 
programs throughout Indian country until and unless such time as a 
Tribe has met the requirements to be treated in the same manner as a 
State for purposes of developing and implementing one or more of its 
own air quality programs under the Act.
    On March 16, 1987, the Wisconsin Department of Natural Resources 
(WDNR) submitted to the Regional Administrator Chapter NR 405 of the 
Wisconsin Administrative Code for approval and inclusion as part of its 
SIP to meet the requirements of part C of the Act and as a replacement 
for EPA's delegated program. Rule NR 405 deals exclusively with PSD 
permitting requirements. On January 4, 1994, EPA proposed to disapprove 
Wisconsin's PSD SIP revision, NR 405.01 through NR 405.17. The 
deficiencies in the proposal were addressed by the WDNR in comments on 
March 8, 1994, and, to avoid having the SIP revision formally 
disapproved, the WDNR withdrew the original submittal.
    On November 6, 1996, the WDNR submitted a request for approval of 
its revised PSD program. More specifically, the submittal addresses the 
deficiencies listed in the January 4, 1994 Federal Register document in 
which EPA had proposed to disapprove the State of Wisconsin's PSD rules 
as a revision to the Wisconsin SIP. On December 18, 1996, EPA sent a 
letter to the WDNR deeming the revised submittal complete and 
initiating the processing of the request.
    The EPA reviewed the revisions made to NR 405 and determined that, 
combined with the remainder of NR 405, which was not changed, they meet 
the Act's part C requirements.
    On December 10, 1997, EPA proposed approval of Wisconsin's PSD 
rules as a revision to the Wisconsin SIP. (62 FR 65046). EPA received 
no comments on the proposal.
    Chapter NR 405 presumes to apply PSD regulation within the total 
area of the State of Wisconsin. As stated above, EPA is approving this 
rule for all portions of the State of Wisconsin except for those 
sources in Indian country. EPA will continue to issue PSD permits, as 
needed, to all sources located in Indian country. EPA also will 
continue to implement throughout the entire State of Wisconsin the 
authorities vested in the Administrator by section 164(e) of the Act 
and 40 CFR 52.21(t) regarding resolution of disputes between States and 
Indian Tribes.

II. Final Action

    The EPA is approving as a revision to the Wisconsin SIP rules 
submitted on November 6, 1996. EPA has determined that these rules meet 
the requirements of part C of the Act.
    Copies of the State's submittal and other information that forms 
the basis for this approval are contained in a rulemaking file 
maintained at the EPA Region 5 office. The file is a record of all 
information submitted to, or otherwise considered by, EPA in the 
development of this final approval. The file is available for public 
inspection at the Chicago Region 5 office listed under the ADDRESSES 
section of this document.

III. Administrative Review

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order (E.O.) 12866, entitled 
``Regulatory Planning and Review.''

B. Executive Order 12875: Enhancing Intergovernmental Partnerships

    Under E.O. 12875, EPA may not issue a regulation that is not 
required by statute and that creates a mandate upon a State, local or 
tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments. If the mandate is unfunded, EPA must provide to the OMB a 
description of the extent of EPA's prior consultation with 
representatives of affected State, local and tribal governments, the 
nature of their concerns, copies of any written communications from the 
governments, and a statement supporting the need to issue the 
regulation. In addition, E.O. 12875 requires EPA to develop an 
effective process permitting elective officials and other 
representatives of State, local and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.'' This rule does not create a 
mandate on State, local or tribal governments. The rule does not impose 
any enforceable duties on these entities. Accordingly, the requirements 
of section 1(a) of E.O. 12875 do not apply to this rule.

C. Executive Order 13084: Consultation and Coordination With Indian 
Tribal Governments

    Under E.O. 13084, EPA may not issue a regulation that is not 
required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on these communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments. If the mandate is unfunded, 
EPA must provide to the OMB in a separately identified section of the 
preamble to the rule, a description of the extent of EPA's prior 
consultation with representatives of affected tribal governments, a 
summary of the nature of their concerns, and a statement supporting the 
need to issue the regulation. In addition, E.O. 13084 requires EPA to 
develop an effective process permitting elected and other 
representatives of Indian tribal

[[Page 28747]]

governments ``to provide meaningful and timely input in the development 
of regulatory policies on matters that significantly or uniquely affect 
their communities.'' This rule does not significantly or uniquely 
affect the communities of Indian tribal governments. Accordingly, the 
requirements of section 3(b) of E.O. 13084 do not apply to this rule.

D. Executive Order 13045

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under E.O. 
12866, and (2) concerns an environmental health or safety risk that EPA 
has reason to believe may have a disproportionate effect on children. 
If the regulatory action meets both criteria, the Agency must evaluate 
the environmental health or safety effects of the planned rule on 
children, and explain why the planned regulation is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by the Agency.
    This rule is not subject to E.O. 13045 because it does not involve 
decisions intended to mitigate environmental health or safety risks.

E. Regulatory Flexibility

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions. This final rule will not have a significant impact on a 
substantial number of small entities because plan approvals under 
section 110 do not create any new requirements but simply approve 
requirements that the State is already imposing. Therefore, because the 
Federal approval does not create any new requirements, I certify that 
this action will not have a significant economic impact on a 
substantial number of small entities. Moreover, due to the nature of 
the Federal-State relationship under the Act preparation of a 
flexibility analysis would constitute Federal inquiry into the economic 
reasonableness of a State action. The Act forbids EPA to base its 
actions on such grounds. Union Electric Co., v. EPA, 427 U.S. 246, 255-
66 (1976); 42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
annual costs to State, local, or tribal governments in the aggregate; 
or to private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    The EPA has determined that the approval action promulgated does 
not include a Federal mandate that may result in estimated annual costs 
of $100 million or more to either State, local, or tribal governments 
in the aggregate, or to the private sector. This Federal action 
approves pre-existing requirements under State or local law, and 
imposes no new requirements. Accordingly, no additional costs to State, 
local, or tribal governments, or to the private sector, result from 
this action.

G. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. The EPA will submit a report containing this rule and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to the publication of the rule in the Federal Register. A major rule 
cannot take effect until 60 days after it is published in the Federal 
Register. This rule is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

H. Petitions for Judicial Review

    Under section 307(b)(1) of the Act, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by July 26, 1999. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purposes of judicial review nor does 
it extend the time within which a petition for judicial review may be 
filed, and shall not postpone the effectiveness of such rule or action. 
This action may not be challenged later in proceedings to enforce its 
requirements. (See section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Incorporation by reference, Intergovernmental relations, New source 
review, Nitrogen dioxide, Particulate matter, Reporting, and 
recordkeeping requirements, Sulfur dioxide, and Volatile organic 
compounds.

    Authority: 42 U.S.C. 7401, et seq.

    Dated: April 21, 1999.
William E. Muno,
Acting Regional Administrator.

    Part 52, Chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

    1. The authority citation for Part 52 continues to read as follows:

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

Subpart YY--Wisconsin

    2. Section 52.2570 is amended by adding paragraph (c)(98) to read 
as follows:


Sec. 52.2570  Identification of plan.

* * * * *
    (c) * * *
    (98) On November 6, 1996, the State of Wisconsin submitted rules 
pertaining to requirements under the Prevention of Significant 
Deterioration program. Wisconsin also submitted rule packages as 
revisions to the state implementation plans for particulate matter and 
revisions to the state implementation plans for clarification changes.
    (i) Incorporated by reference. The following sections of the 
Wisconsin Administrative Code (WAC) are incorporated by reference. Both 
rule packages, AM-27-94 and AM-9-95, were published in the (Wisconsin) 
Register in April 1995, No. 472, and became effective May 1, 1995. AM-
27-94 modifies Chapter NR, Sections 400.02(39m), 404.05, 405.02, 
405.07, 405.08, 405.10, 405.14, and 484.04 of the WAC. AM-9-95 modifies 
Chapter NR, Sections 30.03, 30.04, 400 Note, 400.02, 400.03, 401.04, 
404.06, 405.01, 405.02, 405.04, 405.05, 405.07, 405.08, 405.10, 406, 
407, 408, 409, 411, 415, 417, 418, 419, 420, 421, 422, 423, 424, 425, 
426, 429, 436, 438, 439, 445m, 447,

[[Page 28748]]

448, 449, 484, 485, 488, 493, and 499 of the WAC.
    3. Sec. 52.2581 paragraphs (a), (b), and (c) are deleted and 
reserved, and pargraphs (d) and (e) are added as follows:


Sec. 52.2581  Significant deterioration of air quality.

    (a)-(c) [Reserved]
    (d) The requirements of sections 160 through 165 of the Clean Air 
Act are met, except for sources seeking permits to locate in Indian 
country within the State of Wisconsin; and sources with permits issued 
by EPA prior to the effective date of the state's rules.
    (e) Regulations for the prevention of the significant deterioration 
of air quality. The provisions of Sec. 52.21(b) through (w) are hereby 
incorporated and made a part of the applicable state plan for the State 
of Wisconsin for sources wishing to locate in Indian country; and 
sources constructed under permits issued by EPA.

[FR Doc. 99-13386 Filed 5-26-99; 8:45 am]
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