[Federal Register Volume 73, Number 243 (Wednesday, December 17, 2008)]
[Rules and Regulations]
[Pages 76558-76560]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29817]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2006-0609; FRL-8749-1]


Approval and Promulgation of Air Quality Implementation Plans; 
Wisconsin; New Source Review Reform ``Linkage'' Rule, Rule AM-32-04b

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving as a revision to the Wisconsin State 
Implementation Plan (SIP) changes to the minor New Source Review (NSR) 
construction permit program and permits fees schedule, through rule AM-
32-04b. The purpose of rule AM-32-04b is to update Wisconsin's minor 
NSR construction permit program to include changes to implement some of 
the new elements of the Federal NSR Reform Rule for sources that meet 
certain provisions within the new major NSR permitting requirements. 
Rule AM-32-04b has been created to accompany Wisconsin's NSR Reform 
rules and is necessary to effectively implement them. Elsewhere in this 
Federal Register, EPA is approving Wisconsin's NSR Reform rules. The

[[Page 76559]]

Wisconsin Department of Natural Resources (WDNR) has also established a 
new fee schedule that will apply to facilities that meet the criteria 
in rule AM-32-04b.

DATES: This final rule is effective on January 16, 2009.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2006-0609. All documents in the docket are listed on 
the 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 www.regulations.gov or in hard 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 Danny Marcus, 
Environmental Engineer, at (312) 353-8781 before visiting the Region 5 
office.

FOR FURTHER INFORMATION CONTACT: Danny Marcus, Environmental Engineer, 
Air Permits Section, Air Programs Branch (AR-18J), EPA Region 5, 77 
West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-8781, 
[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. What Is Being Addressed in This Action?
II. What Are the Changes That EPA Is Approving?
III. What Action Is EPA Taking Today?
IV. Statutory and Executive Order Reviews

I. What Is Being Addressed in This Action?

    We are approving changes to the minor NSR construction permit 
program and permits fees schedule for the State of Wisconsin, enacted 
through rule AM-32-04b. EPA granted full approval to WDNR's non-
attainment new source review (NANSR) program on January 18, 1995 (60 FR 
3538) and the approval became effective on February 17, 1995. The 
January 18, 1995, approval also included WDNR's minor NSR program, 
which was incorporated by reference into Wisconsin's SIP.
    The rule revision being approved in this action has been created to 
update Wisconsin's minor NSR construction permit program to include 
changes to implement some of the new elements of the Federal NSR Reform 
Rule for sources that meet certain requirements within the new major 
NSR permitting requirements. EPA published the NSR Reform Rule, which 
includes revisions to the Federal Prevention of Significant 
Deterioration (PSD) and NANSR regulations, in the Federal Register on 
December 31, 2002, effective March 3, 2003. Elsewhere in today's 
Federal Register, EPA is approving Wisconsin's revisions to its NSR 
rules. The action approving them contains a compilation of responses to 
comments that we received.
    This rule revision will affect those facilities meeting certain 
criteria within the major NSR program as a result of the actual-to-
projected-actual applicability test, and facilities complying with 
plant-wide applicability limitations (PALs). This rule revision also 
establishes a new fee schedule for facilities utilizing PALs and for 
facilities utilizing the actual-to-projected-actual test to avoid major 
NSR.
    This rule revision contains a provision that will be applicable to 
sources that meet criteria within the major NSR rules when applying the 
actual-to-projected-actual applicability test in circumstances where 
the calculated difference between projected actual emissions and 
baseline actual emissions does not exceed significant thresholds. 
Facilities that meet this criterion will also have to meet the criteria 
in this rule, AM-32-04b, in order to be eligible for utilizing the 
provision.
    EPA created PALs so that a facility could make rapid, iterative 
changes optimizing process performance, without the administrative time 
delays and uncertainty associated with permitting. EPA believes that 
the PAL provides for environmental improvement since its cap-based 
framework encourages emission reductions and pollution prevention. EPA 
has not provided provisions for sources operating under a PAL in 
certain circumstances where a state's minor NSR rules could affect 
permitting. In rule AM-32-04b, WDNR provides additional requirements 
for facilities that choose to operate under a PAL.
    In Wisconsin, any source that chooses to establish a PAL, or will 
distribute allowable emissions following expiration of a PAL, must 
comply with section NR 406.035 and will need a minor NSR construction 
permit. Any source that chooses to modify its plant under a PAL will 
not need a minor NSR permit, consistent with the NSR Reform Rule, so 
long as the criteria of NR 406.04(1f) are met.
    WDNR has also established in its rules a new fee schedule that will 
apply to facilities using PALs and to facilities applying to utilize 
certain new provisions in this rule. A source will be responsible for 
paying a fee when establishing a PAL limit, receiving permission to 
increase an existing PAL limit, and when distributing limits upon 
expiration of a PAL. Also, there are fees applicable to sources that 
utilize the actual-to-projected-actual determination to avoid major NSR 
under the new provisions of this rule.

II. What Are the Changes That EPA Is Approving?

    We are approving amendments to Wisconsin's minor NSR construction 
permit program to incorporate some of the new elements of the Federal 
NSR Reform Rule. Please refer to the proposed approval of this rule, 72 
FR 19834 (April 20, 2007), which includes a detailed explanation of the 
provisions that we are approving. This final action incorporates into 
the Wisconsin SIP amendments to the following provisions NR 406 and NR 
410: NR 406.035, NR 406.04(1f), NR 406.04(1k), NR 406.07(3), NR 
406.11(1m), NR 410.03(intro.), NR 410.03(1)(a)8. to 10., NR 
410.03(1)(b)1, NR 410.03(1)(b)(intro.) and 2. to 4.

III. What Action Is EPA Taking Today?

    EPA is approving into the Wisconsin SIP, rule AM-32-04b, changes to 
the minor NSR construction permit program and permits fees schedule. 
Rule AM-32-04b will update Wisconsin's minor NSR construction permit 
program to include changes to implement the new elements of the Federal 
NSR Reform Rule for sources that meet certain criteria within the major 
NSR program as a result of the actual-to-projected-actual applicability 
test, and for those facilities complying with the new PAL provisions. 
This new rule is necessary for AM-06-04, the adopted version of the NSR 
Reform Rule, to be implemented appropriately.

IV. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act.

[[Page 76560]]

Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.
    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 action 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 February 17, 2009. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action 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: December 8, 2008.
Lynn Buhl,
Regional Administrator, Region 5.

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40 CFR part 52 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

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2. Section 52.2570 is amended by adding paragraph (c)(120) to read as 
follows:


Sec.  52.2570  Identification of plan.

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    (c)* * *
    (120) On May 25, 2006, Wisconsin submitted for EPA approval into 
the Wisconsin SIP a revision to renumber and amend NR 410.03(1)(b); to 
amend 410.03(intro.) and to create NR 406.035, 406.04(1f) and (1k), 
406.07(3), 406.11(1m), 410.03(1)(a)8. to 10. and (b)(intro.) and 2. to 
4. relating to changes to chs. NR 406 and 410, the state air permitting 
programs, with Federal changes to air permitting program and affecting 
small business. The rule revision being approved in this action has 
been created to update Wisconsin's minor NSR construction permit 
program to include changes to implement some of the new elements of the 
Federal NSR Reform rules for sources that meet certain requirements 
within the new major NSR permitting requirements. 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 406.035 Establishment or distribution of plant-wide 
applicability limitations, as published in the Wisconsin Administrative 
Register, June 30, 2007, No. 618, effective July 1, 2007.
    (B) NR 406.04 Direct sources exempt from construction permit 
requirements. NR 406.04(1f) and NR 406.04(1k), as published in the 
Wisconsin Administrative Register, June 30, 2007, No. 618, effective 
July 1, 2007.
    (C) NR 406.07 Scope of permit exemption. NR 406.07(3), as published 
in the Wisconsin Administrative Register, June 30, 2007, No. 618, 
effective July 1, 2007.
    (D) NR 406.11 Construction permit revision, suspension and 
revocation. NR 406.11(1m), as published in the Wisconsin Administrative 
Register, June 30, 2007, No. 618, effective July 1, 2007.
    (E) NR 410.03 Application fee. NR 410.03(intro.), NR 410.03(1)(a) 8 
to 10, NR 410.03(1)(b), as published in the Wisconsin Administrative 
Register, June 30, 2007, No. 618, effective July 1, 2007.
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[FR Doc. E8-29817 Filed 12-16-08; 8:45 am]
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