[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]
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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.
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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]
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