[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] ======================================================================= ----------------------------------------------------------------------- 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