[Federal Register Volume 77, Number 152 (Tuesday, August 7, 2012)]
[Rules and Regulations]
[Pages 46960-46961]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-19138]



[[Page 46960]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2011-0501; FRL9699-3]


Approval and Promulgation of Air Quality Implementation Plans; 
Wisconsin; Forest County Potawatomi Community Reservation Class I Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving procedures for permitting certain sources in 
relation to the Forest County Potawatomi Community (FCP Community) 
Class I Area into the Wisconsin State Implementation Plan (SIP). These 
provisions were submitted by the Wisconsin Department of Natural 
Resources (WDNR) on May 12, 2011. The provisions include the regulation 
of certain sources constructing near the FCP Community Class I Area, as 
well as procedures for the FCP Community's demonstration regarding a 
source that may have an adverse impact on the Class I Area. The 
provisions implement portions of a Memorandum of Agreement (MOA) 
entered into by Wisconsin and the FCP Community as part of a dispute 
resolution related to the Class I Area redesignation.

DATES: This final rule is effective on September 6, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2011-0501. 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), Environmental 
Protection Agency, 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 by this document?
    II. What sections of Wisconsin's rules are we approving?
    III. What comments did we receive on the proposed rule?
    IV. What action is EPA taking?
    V. Statutory and executive order reviews.

I. What Is Being Addressed by This Document?

    On April 5, 2012, at 77 FR 20575, EPA proposed to approve 
regulatory revisions that Wisconsin submitted for EPA's approval which 
include defining the geographic center of the FCP Community Class I 
Area for purposes of air quality management; provisions which require 
proposed new major sources or major modifications of existing sources 
locating within 22.25 miles of the geographic center of the FCP 
Community Class I Area to conduct a Class I increment analysis; and 
provisions which would require proposed new major sources or major 
modifications of existing sources locating outside 22.25 miles of the 
geographic center of the FCP Community Class I Area to conduct a Class 
II increment analysis. The rules also include procedures for the FCP 
Community to coordinate with the State regarding comments on sources 
potentially impacting the Class I Area and to make a demonstration to 
the State that a proposed source may have an adverse effect on Air 
Quality Related Values(AQRVs). Finally, the rules provide the FCP 
Community with the opportunity to review certain best available control 
technology (BACT) and maximum achievable control technology (MACT) 
determinations made by the State, and provide a dispute resolution 
mechanism for resolving disagreements regarding those BACT or MACT 
determinations.
    The changes to the Wisconsin SIP implement portions of an MOA 
signed by Wisconsin and the FCP Community in 1999. This MOA was part of 
a dispute resolution process related to the FCP Community Class I Area 
redesignation in 2008. For additional background information on the 
Class I Area redesignation, see 73 FR 23086, April 29, 2008, and 77 FR 
20575, April 5, 2012.

II. What sections of Wisconsin's rules are we approving?

    EPA is approving revisions to chapters NR 400, 405, and 406 of the 
Wisconsin Administration Code into the Wisconsin SIP. Specifically, we 
are approving NR 400.02(66m), 405.19 and 406.08(4). The revisions 
include adding a definition for the geographic center of the FCP 
Community, as well as establishing the distance from this center point 
at which a major source or major modification would be required to 
comply with regulations regarding impacts to the Class I Area, 
including a Class I increment analysis and consumption limits. 
Additionally, the provisions establish procedures for the FCP Community 
to have opportunities to review BACT and MACT determinations and to 
demonstrate that impacts from a new source would have an adverse impact 
on AQRV's of the FCP Community Class I Area.

III. What comments did we receive on the proposed rule?

    EPA provided a 30-day review and comment period. The comment period 
closed on May 7, 2012. EPA received comments in support of the proposed 
approval from the FCP Community. EPA received no adverse comments on 
the proposed rule.

IV. What action is EPA taking?

    In today's action, EPA is approving NR 400.02(66m), 405.19 and 
406.08(4) into the Wisconsin SIP relating to permitting for certain 
sources with the potential to impact the FCP Community Class I Area. As 
explained above, and at 77 FR 20575, the provisions will affect 
permitting for those sources constructing within a certain distance to 
the FCP Community as well as any source with the potential to have an 
adverse impact on the increment or AQRVs associated with the FCP 
Community's Class I Area. This action does not affect any permitting 
within the FCP Community's reservation and EPA remains the federal 
permitting authority for the FCP Community's reservation.

V. 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 Clean Air 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. 
Accordingly, this action merely approves state law as

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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. In May 2011, EPA 
issued its policy on consultation and coordination with Indian tribes. 
EPA explained that its policy is to consult on a government-to-
government basis with Federally recognized tribal governments when EPA 
actions and decisions may affect tribal interests. Accordingly, EPA 
engaged in consultation with the FCP Community regarding the Wisconsin 
proposed SIP revisions. This process is further described in 77 FR 
20575, 20577.
    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 October 9, 2012. 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: June 27, 2012.
Susan Hedman,
Regional Administrator, Region 5.
    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

0
2. Section 52.2570 is amended by adding paragraph (c)(125) to read as 
follows:


Sec.  52.2570  Identification of plan.

* * * * *
    (c) * * *
    (125) On May 12, 2011, the Wisconsin Department of Natural 
Resources submitted a request to revise the State Implementation Plan 
regarding procedures for permitting certain sources in relation to the 
Forest County Potawatomi Community Class I Area.
    (i) Incorporation by reference. The following sections of the 
Wisconsin Administrative Code are incorporated by reference:
    (A) NR 400.02 Definitions. NR 400.02(66m) ``Forest County 
Potawatomi Community Class I area'' or ``FCPC Class I area'' as 
published in the Wisconsin Administrative Register November 2010, No. 
659, effective December 1, 2010.
    (B) NR 405.19 Forest County Potawatomi Class I area, as published 
in the Wisconsin Administrative Register November 2010, No. 659, 
effective December 1, 2010.
    (C) NR 406.08 Action on permit applications. NR 406.08(4)(a) and 
(4)(b) as published in the Wisconsin Administrative Register November 
2010, No. 659, effective December 1, 2010.
* * * * *
[FR Doc. 2012-19138 Filed 8-6-12; 8:45 am]
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