Approval and Promulgation of Implementation Plans; Wisconsin

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.

-----------------------------------------------------------------------

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]

BILLING CODE 6560-50-P