[Federal Register Volume 73, Number 48 (Tuesday, March 11, 2008)]
[Rules and Regulations]
[Pages 12893-12895]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-4582]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2007-0717; FRL-8533-1]


Approval and Promulgation of Air Quality Implementation Plans; 
Wisconsin; Approval of Construction Permit Waiver

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving revisions to the Wisconsin State 
Implementation Plan (SIP) submitted by the Wisconsin Department of 
Natural Resources (WDNR) on May 1, 2007. The WDNR has submitted for 
approval into its SIP a revision which allows the WDNR to issue a 
waiver to a source allowing it to commence construction prior to a 
construction permit being issued, in certain cases. This provision is 
only allowed for minor sources that meet specific criteria, and WDNR 
must follow established procedures to grant a waiver. In addition, the 
revision also contains changes to Wisconsin's fee provisions to allow a 
fee to be charged for the waiver. EPA proposed approval of this 
revision on December 4, 2007 (72 FR 68119). EPA did not receive any 
comments. EPA is approving this revision because it is consistent with 
Federal regulations governing state permit programs.

DATES: This final rule is effective on April 10, 2008.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2007-0717. All documents in the docket are listed on 
the http://www.regulations.gov Web site. Although listed in the index, 
some information is not publicly available, i.e., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically through http://www.regulations.gov or in hard

[[Page 12894]]

copy at the Environmental Protection Agency, Region 5, Air and 
Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. 
This facility is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding Federal holidays. We recommend that you telephone 
Susan Castellanos, Environmental Engineer, at (312) 353-2654 before 
visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Susan Castellanos, Environmental 
Engineer, Air Permits Section, Air Programs Branch (AR-18J), 
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 
Chicago, Illinois 60604, (312) 353-2654, [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This supplementary information 
section is arranged as follows:

I. Background Information on Today's Action
II. What Comments did we Receive?
III. What Action is EPA Taking Today?
IV. Statutory and Executive Order Reviews

I. Background Information on Today's Action

    On December 4, 2007, EPA published a proposed approval for a 
revision to Wisconsin's construction permit program (72 FR 68119). This 
revision to Wisconsin's SIP renumbers and amends NR 406.03, amends NR 
410.03 (intro.) and creates NR 406.03(2) and NR 410.03(l)(bm), Wis. 
Admin. Code. These changes allow WDNR to issue a waiver to a source 
allowing it to commence construction in certain cases prior to a 
construction permit being issued. These revisions also contain changes 
to Wisconsin's fee provisions to allow a fee to be charged for the 
waiver.
    Wisconsin Rule NR 406 contains the requirements and procedures for 
construction permits. The revisions to NR 406.03 require the following 
conditions to be satisfied before the State may grant a source a 
waiver: (1) A complete construction permit application has been 
submitted for the source; (2) the source and the proposed project will 
result in the source remaining a true minor source (no synthetic minor 
or netting permits); (3) the waiver request must demonstrate that undue 
hardship will result if the waiver is not granted; and (4) the source 
is not located or to be located within 10 kilometers of a Class I area. 
Undue hardship may result from adverse weather conditions, catastrophic 
damage of existing equipment, a substantial financial hardship that may 
preclude the project in its entirety, and other unique conditions.
    The rule further states that a waiver does not obligate the WDNR to 
ultimately approve the project, or relieve the source from compliance 
with any applicable regulation. Finally, if a waiver is granted and the 
source proceeds with construction, the rule specifies that it is doing 
so at its own risk, and the source may not operate until the permit is 
issued. WDNR may rescind a waiver if the owner or operator does not 
diligently respond to inquiries on the construction permit application 
or if WDNR preliminarily determines that the source will not meet the 
criteria for permit approval.
    Additional changes are being made to NR 410, Wisconsin's air permit 
fee rules, to include fees for waivers. NR 410.03(1)(a)(5), related to 
the fees for a construction permit revision, is amended to exempt the 
fee if the requested revision is to make the source eligible for a 
registration operation permit.

II. What Comments did we Receive?

    Notice of the public comment period for the proposed approval of 
Wisconsin SIP revision was published on December 4, 2007 (72 FR 68119). 
The public comment period ended on January 3, 2008. EPA did not receive 
any comments on the proposed revision.

III. What Action is EPA Taking Today?

    EPA is approving the revisions to Wisconsin's SIP to renumber and 
amend NR 406.03, to amend NR 410.03(intro.) and to create NR 406.03(2) 
and NR 410.03(l)(bm). These changes allow WDNR to issue a waiver to a 
source allowing it to commence construction in certain cases prior to a 
construction permit being issued. These revisions also contain changes 
to Wisconsin's fee provisions to allow a fee to be charged for the 
waiver.

IV. 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

    Because it is not a ``significant regulatory action'' under 
Executive Order 12866 or a ``significant regulatory action,'' 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 (Pub. L. 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 approves a state rule implementing a 
Federal Standard.

[[Page 12895]]

National Technology Transfer Advancement Act

    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
state to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) 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 May 12, 2008. 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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: February 13, 2008.
Bharat Mathur,
Acting Regional Administrator, Region 5.

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

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)(117) to read as 
follows:


Sec.  52.2570  Identification of plan.

* * * * *
    (c) * * *
    (117) On May 1, 2007, Wisconsin submitted for EPA approval into the 
Wisconsin SIP a revision to renumber and amend NR 406.03, to amend NR 
410.03(intro.) and to create NR 406.03(2) and NR 410.03(l)(bm) Wis. 
Admin. Code, effective June 1, 2007. This revision allows WDNR to issue 
a waiver to a source allowing it to commence construction prior to a 
construction permit being issued. This provision is only allowed for 
minor sources which meet specific criteria. These revisions also revise 
Wisconsin's fee provisions to allow a fee to be charged for the waiver. 
EPA has determined that this revision is approvable under the Act.
    (i) Incorporation by reference. The following sections of the 
Wisconsin Administrative Code are incorporated by reference:
    (A) NR 406.03 as published in the (Wisconsin) Register, May 2007, 
No. 617, effective June 01, 2007.
    (B) NR 410.03(intro.) and NR 410.03(l)(bm) as published in the 
(Wisconsin) Register, May 2007, No. 617, effective June 01, 2007.
 [FR Doc. E8-4582 Filed 3-10-08; 8:45 am]
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