[Federal Register Volume 68, Number 168 (Friday, August 29, 2003)]
[Rules and Regulations]
[Pages 51906-51911]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-22050]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[WI-113-3; FRL-7528-7]


Approval and Promulgation of State Implementation Plans; 
Wisconsin

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is approving a revision to Wisconsin's State 
Implementation Plan (SIP) for the attainment of the one-hour ozone 
standard for the Milwaukee-Racine area. This SIP revision, submitted to 
EPA on December 16, 2002, allows emissions averaging for sources 
subject to the state's rules limiting emissions of nitrogen oxides 
(NOX) from large electricity generating units in southeast 
Wisconsin. In addition, the revision creates a new categorical 
emissions limit for new integrated gasification combined cycle units. 
On April 10, 2003, the EPA proposed approval of this SIP revision and 
published a direct final approval as well. EPA received adverse 
comments on the proposed rulemaking, and therefore withdrew the direct 
final rulemaking on June 6, 2003.

DATES: This final rule is effective September 29, 2003.

ADDRESSES: Copies of the documents relevant to this action are 
available for public inspection during normal business hours at the 
following address: U.S. Environmental Protection Agency, Region 5, Air 
and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 
60604. We recommend that you telephone Alexis Cain at (312) 886-7018 
before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Alexis Cain, Environmental Scientist, 
Regulation Development Section, Air Programs Branch (AR-18J), USEPA,

[[Page 51907]]

Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 
886-7018.

SUPPLEMENTARY INFORMATION:
    The supplemental information is organized in the following order:

I. What action is EPA taking today?
II. What is EPA's response to comments received on the proposed 
rulemaking?
III. Statutory and Executive Order Reviews

I. What Action Is EPA Taking Today?

    EPA is approving, as part of the Wisconsin ozone SIP, rules that 
would allow sources to use emissions averaging and an emissions cap as 
a option for complying with ozone season limits on emissions of 
NOX. These limits apply to large electricity generating 
units in Southeast Wisconsin. EPA approved the rules setting the 
NOX emissions limits into Wisconsin's SIP on November 13, 
2001 (66 FR 56931). The limits are expressed in mass of allowable 
emissions per unit of heat input (pounds per million Btu).
    Emissions averaging will allow units subject to the NOX 
emissions limits of NR 428 of the Wisconsin Administrative Code to 
create emissions averaging plans in which the compliance of multiple 
sources would be assessed collectively. Participating sources would 
need to submit such plans to the Wisconsin Department of Natural 
Resources (WDNR) at least 90 days prior to the start of the ozone 
season, and would need to identify the participating units, their 
owners or operators, applicable emissions limitations, projected heat 
input and emissions rate, and projected mass emissions for the ozone 
season. The plan would establish an aggregate ozone season emissions 
rate limit for participating units through a formula that sums 
allowable emissions for each unit (based on projected heat input and 
each source's individual emissions rate), and divides it by the total 
projected heat input. To provide an environmental benefit from 
averaging, the formula subtracts 0.01 pounds/mmbtu from each unit's 
allowable emissions.
    As a result, total emissions under an averaging plan would be lower 
than they would be if each unit demonstrated compliance on an 
individual basis. However, individual units would be allowed to exceed 
emissions rates specified in the NOX reduction rules, while 
other units would emit less than allowed under the rules. Thus, 
averaging allows companies to minimize the cost of emissions reductions 
by allocating reductions at the units that can achieve them most 
inexpensively.
    In addition, units participating in an averaging plan are subject 
to a mass emission limitation, beginning with the 2008 ozone season. 
This feature of the program ``caps'' the aggregate ozone season 
NOX emissions of participating sources at a level that could 
not be exceeded regardless of heat input. This level is determined by 
the participating units' share of actual heat input during the 1995, 
1996 and 1997 ozone seasons, multiplied by 15,912 tons, an amount 
consistent with the state's one-hour ozone attainment demonstration.
    Within 60 days of the end of each ozone season, owners or operators 
of the participating units must submit compliance reports demonstrating 
compliance with the plan's emission rate and mass emission limit.

II. What Is EPA's Response to Comments Received on the Proposed 
Rulemaking?

    The Midwest Environmental Advocates provided adverse comments on 
EPA's proposed approval of Wisconsin's averaging program. The Natural 
Resources Defense Council requested clarification of an issue related 
to the proposed approval of the new categorical emissions limit for new 
integrated gasification combined cycled units. In addition, EPA 
received two positive comments on the proposed rulemaking from 
citizens. This section responds to the adverse comments and to the 
request for clarification.
    The Midwest Environmental Advocates noted areas where Wisconsin's 
averaging program may differ from the EPA's guidance on Improving Air 
Quality with Economic Incentive Programs, EPA-452/R-01-001, January 
2001 (EIP Guidance). The comments by Midwest Environmental Advocates 
are addressed in detail below, and in many cases EPA disagrees that 
Wisconsin's averaging program is inconsistent with the EIP. In general, 
EPA notes that the EIP Guidance is neither a law nor a regulation. 
While it provides important guidance on the development of economic 
incentive programs, differences between a SIP submittal and the EIP 
Guidance are not necessarily sufficient reason to disapprove a SIP 
submittal.
    Comment: Wisconsin's NOX averaging program should not be 
approved because it would not result in clear environmental benefit, as 
required under the EIP Guidance.
    Response: The averaging program should be considered as an element 
of Wisconsin's overall NOX reduction rules. EPA has 
determined that these rules will achieve the results that the state 
attributed to them in the one-hour ozone attainment plan (proposed 
rule, July 2, 2001, 66 FR 34878; final rule November 13, 2001, 66 FR 
56931). The averaging portion of the rules provides compliance 
provisions that make it possible for sources subject to the rules to 
comply with them in a timely way, which otherwise would not be 
possible. Therefore, the averaging program is an essential element in 
an overall package that will lead to actual emissions decreases, and 
conforms with the EIP Guidance provisions on environmental benefit. 
Moreover, units that enter into NOX averaging plans must 
collectively accept a lower NOX emissions limit than they 
would have individually, which will promote further reductions in 
actual emissions.
    Comment: Wisconsin's NOX averaging program fails to take 
source compliance margins into account, contrary to the EIP Guidance. 
The averaging program could lead to the disappearance of the margin 
between actual and allowable emissions that would occur in the absence 
of the averaging program, creating the potential for ``an overall 
increase in actual emissions, despite a theoretical decrease in 
allowable emissions.''
    Response: The EIP Guidance (section 6.5(g)) states that in areas 
that have a required attainment demonstration, no provisions for 
considering compliance margins are necessary if the relevant attainment 
plan ``includes the emissions from compliance margins as actual 
emissions'' and ``the relevant emissions inventories include emissions 
from the compliance margins for all sources covered under the EIP.'' 
Since the Milwaukee-Racine attainment and ROP plan and associated 
NOX emissions inventories assume that the NOX 
sources covered by the averaging program all emit as much as allowed, 
the compliance margin is already taken into account, and emissions will 
be reduced even if sources emit the maximum allowed. See ``Technical 
Support Document for the Post-1999 Rate-of-Progress Plan Revision to 
the State Implementation Plan for the Milwaukee-Racine, Wisconsin 
Area,'' from Jacqueline Nwia to Randall Robinson, June 7, 2001, p. 27 
(Docket WI 108-7338).
    Comment: The rules require that excess emissions reductions used in 
an averaging plan be ``beyond those required to meet all State and 
Federal requirements,'' but they do not require that reductions be in 
excess of those that would have occurred in the absence of the EIP, for 
instance due to upgrades, replacement or repair. The use of such 
reductions in averaging would frustrate

[[Page 51908]]

the goal of achieving additional reductions.
    Response: Since it is difficult to determine which emissions-
reducing upgrades, replacements, and repairs are motivated by an 
averaging program and which would occur in its absence, it is 
reasonable for the state to allow all reductions that are not otherwise 
required to be used in emissions averaging. It is sufficient to show 
that the overall effect of the program is to create lower emissions 
than would occur in the program's absence, even if some of the specific 
reductions used in an averaging plan would have occurred in any case. 
The EIP guidance requirement that economic incentive programs produce a 
clear environmental benefit is met because of the role that the 
averaging program plays in making compliance with the NOX 
reduction rules possible, by the reduced emissions rate on sources that 
participate in averaging, and by the imposition of an emissions cap.
    Comment: It is unclear that the imposition of an emissions cap 
results in ``any appreciable environmental benefit that would not have 
otherwise been achieved by complying with the state's one-hour ozone 
attainment plan.''
    Response: The one-hour ozone attainment plan is a tool for managing 
air quality, through projecting the impacts of regulations and economic 
changes on emissions of ozone precursors and on concentrations of ozone 
in ambient air. The attainment plan, however, does not impose 
requirements on sources. While the attainment plan includes projections 
of future emissions, based on projected activity levels and allowable 
emissions rates, these future emissions and activity levels are not 
regulatory requirements on sources. This SIP revision will create a new 
emissions cap, consistent with the attainment demonstration, for 
sources that participate in emissions averaging. This emissions cap 
provides certainty, which would not otherwise exist, that emissions 
from participating sources will be capped despite the potential for 
activity level increases beyond those projected.
    Comment: The emissions cap does not apply until 2008, by which time 
it is likely that other factors will reduce NOX emissions in 
the Milwaukee-Racine area.
    Response: It may be true that other programs or events will reduce 
future emissions beyond what is required under Wisconsin's current 
NOX rules. However, for the purpose of this rulemaking, EPA 
cannot assume the implementation of these future programs prior to 
2008, and therefore counts the 2008 emissions cap as an environmental 
benefit.
    Comment: The program ``fails to account for the relationship 
between NOX averaging plans and Title V permits.'' A unit 
operating under a Title V permit might use emissions averaging to 
increase its emissions, violating the facility's Title V permit and 
constituting a major modification necessitating new source review.
    Response: Any unit that increases emissions sufficiently to violate 
its permit would be subject to enforcement, and any unit that increases 
emissions sufficiently to constitute a major modification would be 
subject to new source review, notwithstanding averaging for the purpose 
of compliance with the NOX emissions limits contained in NR 
428.04(2) and NR 428.05(3). The averaging program cannot be used for 
compliance with any other requirement, and it cannot be used to avoid 
any requirement. Proper use of the averaging program for compliance 
with the NR 428 NOX emissions limits will be consistent the 
Title V permit, because when these limits are included in the permits 
of sources eligible for averaging, the permits will specify that 
averaging is a compliance option.
    Comment: ``The proposed SIP revision does not explicitly require 
units participating in averaging plans to modify their Title V permit 
accordingly.'' Unless the public can determine from a facility's Title 
V permit whether a unit is part of an averaging plan, which other units 
are included in the plan, and how to determine the applicable emissions 
limits among and between those units, public participation in the Title 
V permit process will be undermined.'' Moreover, ``the public is 
charged with obtaining a copy of an averaging plan from the 
participating parties,'' potentially inhibiting the public's ability to 
assess a source's compliance status.
    Response: While NR 428 does not itself contain a requirement that 
units participating in averaging plans modify their Title V permits, NR 
407, which is part of Wisconsin's SIP, does require that new 
requirements and compliance options be incorporated into permits as 
they are issued. Therefore, permits issued for sources that may use 
averaging must authorize the use of the averaging program as a 
compliance option. The Clean Air Act does not require that the details 
of averaging plans be included in Title V permits, but rather that the 
Title V permit identify whether a unit may use emissions averaging as a 
compliance option. EPA agrees with the commenter that the public should 
have access to the averaging plan when viewing a company's Title V 
permit, and the public should not have to obtain the averaging plan 
from the source. The WDNR has clarified, in a letter dated May 28, 
2003, that it will keep any prospective averaging plan, DNR comments on 
the plan, the final plan, and all compliance reports, in the Title V 
permit file for each participating source. It should also be noted that 
participants in an emissions averaging plan must provide public notice 
of the plan in a local newspaper at least 60 days prior to the start of 
the ozone season.
    Comment: The proposed SIP revision fails to include provisions 
preventing a unit receiving excess emissions credits from increasing 
emissions sufficient to constitute a major modification without 
undergoing PSD or NSR review.
    Response: The PSD and NSR programs require sources to undergo 
review when increasing emissions sufficient to constitute a major 
modification. Nothing in Wisconsin's averaging program changes this 
requirement.
    Comment: EPA's ``justifications for failing to apply agency 
guidance [on averaging among sources not under common ownership] are 
insufficient because they fail to address the purported purpose behind 
the unified owner requirement.'' The unified owner requirement ``is 
meant to ensure enforcement and compliance.'' A cap, whatever its 
environmental benefits, cannot substitute for lack of enforceability.
    Response: A cap provides assurances that if enforcement of average 
emission rates proves difficult, the state and EPA can nonetheless 
protect the environment by enforcing against any violation of the cap.
    Comment: Saying that WDNR staff will be able to review averaging 
plants is irrelevant because the guidance prohibits emissions averaging 
between facilities owned by different companies to ensure enforcement 
and compliance. Given the difficulty of predicting activity levels, 
``merely making sure that projected activity levels are reasonable does 
not ensure that day to day averaging is achieved.''
    Response: The commenter is correct that projecting reasonable 
activity levels does not ensure that day to day averaging is achieved. 
In looking at the question of whether Wisconsin will be able to check 
the reasonableness of projected activity levels, EPA is seeking to 
ensure that averaging plan participants will not be able to

[[Page 51909]]

deliberately ``game'' the system by projecting excessive activity by a 
unit with a reduced emissions rate. In the situation where non-
compliance occurs because a unit has a lower-than-projected activity 
level, emissions will be lower than projected. This situation is of 
less concern if the activity levels projected are reasonable and 
similar to those of previous years, than if intentionally-erroneous 
significant growth in activity levels were projected. In the latter 
situation, emissions could increase even if activity levels are lower 
than the inflated projections of the averaging plan. It is important to 
note that it is a violation of the NOX averaging rules to 
exceed the allowable aggregate emissions rate, regardless of whether 
total emissions are greater or less than projected.
    Comment: ``Wisconsin's air management program is already under-
staffed and under-funded,'' is late in issuing permits, and is having 
difficulty ensuring compliance with the Title V program. ``Even if DNR 
staff review of averaging plans could adequately address the concerns 
in EPA guidance, air management staff are not in a position to 
adequately complete this task.''
    Response: The staff time required to verify that a small number of 
averaging plans contain reasonable projections of activity levels is 
minimal. EPA is confident that Wisconsin staff can perform this 
function, regardless of staffing and funding problems that may affect 
the Title V program.
    Comment: A company operating a high-emissions unit cannot ensure 
that sufficient reductions exist unless it controls the low emission 
unit creating those credits. The fact that eligible facilities operate 
close to capacity is irrelevant, since activity levels can change.
    Response: The commenter is correct that in averaging plans 
involving multiple owners, the ability to comply of all participants in 
the averaging plan can be compromised if the owner of the unit with a 
reduced emission rate does not maintain sufficient activity level. 
Averaging plan participants must take the risk of failing to comply 
with the averaging plan as a result of unexpected reductions in 
activity level by sources with reduced emissions rates. EPA could bring 
enforcement actions for such non-compliance, even though non-compliance 
with the emissions rate would be accompanied by lower actual emissions 
than projected.
    Comment: The proposed SIP fails to indicate that all units 
participating in an averaging plan are in violation each and every day 
within the plan's averaging period if the aggregate NOX 
emissions exceed the averaging plan's emission limits, multiplied by 
the number of participating units, as required under the EIP guidance.
    Response: NR 428(j) states that ``all emissions units participating 
in an ozone season NOX emissions averaging program may be 
considered out of compliance'' if the averaging plan aggregate 
emissions rate or emissions cap is exceeded. Furthermore, ``each 
emissions unit is considered out of compliance for each day of non-
compliance until corrective action is taken to reduce emissions and 
achieve compliance.'' In the case of a violation of the averaging 
plan's aggregate emission rate or emissions cap, these provisions would 
give Wisconsin the ability to bring enforcement actions for violations 
for each participating unit, for each day during the ozone season up to 
the point when corrective action was taken. These provisions provide 
significant deterrence, are consistent with the requirements of the 
Clean Air Act and Title V regulations, and are substantially consistent 
with the EIP guidance. While the EIP guidance might be interpreted to 
indicate that a source may be in violations for each day of the ozone 
season even after corrective action is taken, EPA is willing to be 
flexible on this point.
    Comment: The proposed rules do not indicate that source shutdowns 
and production activity curtailments are not eligible as emission 
reductions, nor that a source's emissions reductions must be 
``permanent,'' as required under the EIP.
    Response: Given the structure of Wisconsin's averaging program, 
such provisions against counting source shutdowns and curtailments are 
unnecessary, and not required under the EIP. In Wisconsin's averaging 
program, compliance depends on emissions rates, not total emissions. 
Therefore, shutdowns and curtailments intrinsically do not generate 
reductions that can be used in averaging programs. Regarding the 
permanence of emissions reductions, the EIP states that ``permanent'' 
means that a source ``commits to actions or achieves reductions for a 
future period of time as defined in the EIP'' (EIP Guidance, Section 
4.2(a)). In Wisconsin's program, sources must commit to making 
reductions during the period defined by the NOX reduction 
rules--the ozone season. Thus, averaging plans in Wisconsin must use 
reductions that meet the EIP's general definition of permanent. The EIP 
also provides an additional definition of permanent specifically for 
averaging. In addition to the general definition, in an averaging 
program ``the source's emission reduction must last throughout the life 
of the program defined in the SIP'' (EIP Guidance, Table 4.3(b)). If 
``the life of the program'' is defined as the period of time during 
which the program will be in operation, then Wisconsin's program, which 
has an indefinite life, would not seem to meet this requirement. 
However, EPA believes that a more reasonable interpretation is that the 
reduction must last through a time period defined by the program--the 
ozone season. In this case, Wisconsin's program does require permanent 
reductions.
    Comment: The proposed SIP revision would allow geographic shifting 
of emissions without protecting communities of concern from emissions 
increases, as required under the EIP. In addition, EPA should determine 
whether the proposed SIP revision satisfies the environmental justice 
requirements in Executive Order 12898.
    Response: The EIP does not require special protections for 
communities of concern in trading or averaging programs that involve 
emissions of NOX, because NOX, unlike volatile 
organic compounds, is not a pollutant that raises significant concerns 
about localized impacts. NOX emissions impact regional 
concentrations of ozone, but do not cause elevated ozone concentrations 
on a local level. NOX emissions are also associated with 
emissions of nitrogen oxides (NO2), a criteria pollutant for 
which the Clean Air Act provides a variety of protections for local 
communities. Wisconsin has no NO2 nonattainment areas, and 
any significant increases in NO2 emissions at sources 
subject to the averaging plan would be subject to New Source Review. 
Since the averaging program creates no adverse local impacts, there is 
no potential to create ``disproportionately high and adverse human 
health or environmental effects * * * on minority populations and low-
income populations,'' as addressed in Executive Order 12898.
    Comment: Wisconsin's NOX averaging rule ``may frustrate 
the state's new 8-hour attainment needs''. EPA should disapprove this 
SIP revision until Wisconsin submits an 8-hour attainment demonstration 
plan.
    Response: The NOX averaging rule is a necessary 
component of Wisconsin's NOX control rules, which will 
reduce NOX emissions and contribute to reductions in ambient 
ozone concentrations. The rule contributes to Wisconsin's efforts to 
meet the 8-hour attainment standard; it does not frustrate them.

[[Page 51910]]

    Comment: ``The proposed SIP revision appears to be promulgated for 
one company,'' raising ``issues of the appropriateness and legality of 
regulation created and implemented for individual companies.''
    Response: Several companies are eligible to use the NOX 
averaging program, and EPA anticipates that more than one company will 
be involved in emissions averaging. In any case, as long as the program 
is protective of the environment, it would not be a cause for concern 
if only one company chose to use the program.
    Comment: ``The direct final rule approves inclusion of a new 
categorical emission limit for new integrated gasification combined 
cycle (IGCC) units in the Wisconsin SIP. We call upon EPA to clarify 
that this emissions limit does not and cannot, pre-ordain, or 
substitute for, BACT or LAER analysis required under the NSR and PSD 
requirements of the Clean Air Act.''
    Response: None of the emissions limits in Wisconsin's 
NOX rules, including the categorical emission limit for new 
integrated gasification combined cycle (IGCC) units, do or can 
predetermine or substitute for BACT or LAER analysis required under the 
NSR and PSD requirements of the Clean Air Act.

III. Statutory and Executive Order Reviews

Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget.

Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    For this reason, this action is also not subject to Executive Order 
13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001).

Regulatory Flexibility Act

    This action merely approves state law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. Accordingly, the Administrator certifies that 
this rule will not have a significant economic impact on a substantial 
number of small entities under the Regulatory Flexibility Act (5 U.S.C. 
601 et seq.).

Unfunded Mandates Reform Act

    Because this rule approves pre-existing requirements under state 
law and does not impose any additional enforceable duty beyond that 
required by state law, it does not contain any unfunded mandate or 
significantly or uniquely affect small governments, as described in the 
Unfunded Mandates Reform Act of 1995 (Public Law 104-4).

Executive Order 13175: Consultation and Coordination With Indian Tribal 
Governments

    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000).

Executive Order 13132: Federalism

    This action also does not have federalism implications because it 
does not have substantial direct effects on the states, on the 
relationship between the national government and the states, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132 (64 FR 43255, August 
10, 1999). This action merely approves a state rule implementing a 
Federal standard, and does not alter the relationship or the 
distribution of power and responsibilities established in the Clean Air 
Act.

Executive Order 13045: Protection of Children From Environmental Health 
and Safety Risks

    This rule also is not subject to Executive Order 13045 ``Protection 
of Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because it is not economically significant.

National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTA), 15 U.S.C. 272 note, requires Federal agencies to 
use technical standards that are developed or adopted by voluntary 
consensus to carry out policy objectives, so long as such standards are 
not inconsistent with applicable law or otherwise impracticable. In 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the Clean Air Act. Absent a 
prior existing requirement for the state to use voluntary consensus 
standards, EPA has no authority to disapprove a SIP submission for 
failure to use such standards, and it would thus be inconsistent with 
applicable law for EPA to use voluntary consensus standards in place of 
a SIP submission that otherwise satisfies the provisions of the Clean 
Air Act. Therefore, the requirements of section 12(d) of the NTTA do 
not apply.

Paperwork Reduction Act

    This rule does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.).

Congressional Review Act

    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. 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 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 action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by October 28, 2003. 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, Incorporation by 
reference, Oxides of Nitrogen.

    Dated: June 30, 2003.
William E. Muno,
Acting Regional Administrator, Region 5.

0
For the reasons stated in the preamble, part 52, chapter I, title 40 of 
the Code of Federal Regulations is amended as follows:

[[Page 51911]]

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart YY--Wisconsin

0
2. Section 52.2570 is amended by adding paragraph (c)(108) to read as 
follows:


Sec.  52.2570  Identification of plan.

* * * * *
    (c) * * *
    (108) On December 16, 2002, Lloyd L. Eagan, Director, Wisconsin 
Department of Natural Resources, submitted revised rules to allow use 
of NOX emissions averaging for sources subject to 
NOX emission limits in the Milwaukee-Racine area. The 
revised rules also establish a NOX emissions cap for sources 
that participate in emissions averaging, consistent with the emissions 
modeled in Wisconsin's approved one-hour ozone attainment demonstration 
for the Milwaukee-Racine area. The rule revision also creates a new 
categorical emissions limit for new integrated gasification combined 
cycle units.
    (i) Incorporation by reference.
    (A) NR 428.02(6m) as published in the (Wisconsin) Register, 
November 2002, No. 563 and effective December 2, 2002.
    (B) NR 428.04(2)(g)(3) as published in the (Wisconsin) Register, 
November 2002, No. 563 and effective December 2, 2002.
    (C) NR 428.06 as published in the (Wisconsin) Register, November 
2002, No. 563 and effective December 2, 2002.

[FR Doc. 03-22050 Filed 8-28-03; 8:45 am]
BILLING CODE 6560-50-P