

[Federal Register: February 28, 2006 (Volume 71, Number 39)]
[Rules and Regulations]               
[Page 9934-9936]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28fe06-12]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2005-0563, FRL-8037-4]

 
Approval and Promulgation of Implementation Plans; Wisconsin; 
Wisconsin Construction Permit Permanency SIP Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final Rule.

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SUMMARY: EPA is taking final action to approve revisions to the 
Wisconsin State Implementation Plan (SIP) submitted by the State of 
Wisconsin on December 8, 2005. Wisconsin had submitted for approval 
into its SIP a statutory revision designed to ensure the permanency of 
construction permit conditions. EPA proposed approval of this revision 
on January 12, 2006 (71 FR 1994). EPA is approving this revision 
because it is consistent with Federal regulations governing State 
permit programs. This revision also addresses one of the deficiencies 
identified in EPA's Notice of Deficiency (NOD), published in the 
Federal Register on March 4, 2004. (69 FR 10167.)

DATES: Effective Date: This rule will become effective on March 30, 
2006.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2005-0563. 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 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 
Siepkowski, Environmental Engineer, at (312) 353-2654 before visiting 
the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Susan Siepkowski, Environmental 
Engineer, Air Permit Section, Air Programs Branch (AR-18J), U.S. 
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 
Chicago, Illinois 60604, (312) 353-2654, siepkowski.susan@epa.gov.

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 for 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 for Today's Action

    On March 4, 2004, EPA published a NOD for the Clean Air Act (Act) 
title V operating permit program in Wisconsin. (69 FR 10167). The NOD 
was based upon EPA's findings that the State's title V program did not 
comply with the requirements of the Act or with the implementing 
regulations at 40 CFR part 70 in several areas. One of the deficiencies 
identified in the NOD was related to the expiration of Wisconsin's 
construction permits.
    40 CFR 70.1 requires that each title V source has a permit that 
assures compliance with all applicable requirements, including any term 
or condition of any preconstruction permit issued pursuant to programs 
approved

[[Page 9935]]

or promulgated under title I, including parts C or D of the Act. Title 
I of the Act authorizes permitting authorities to establish in permits 
source specific terms and conditions necessary for sources to comply 
with the requirements of the Prevention of Significant Deterioration 
(PSD) and New Source Review (NSR) programs. These permits must remain 
in effect because they are the legal mechanism through which underlying 
NSR or PSD requirements become applicable, and remain applicable, to 
individual sources. (May 20, 1999, EPA Memorandum from John Seitz). If 
the underlying construction permit expires, then the construction 
permit terms would no longer be applicable requirements, and the 
permitting authority would not have the authority to incorporate them 
into title V permits.
    Wisconsin statutes, Wis. Stat. 285.66(1), had provided that 
construction permits, including NSR and PSD permits, expired after 18 
months. Because Wisconsin's construction permits expired, resulting in 
terms in its title V permits that did not have underlying applicable 
requirements, EPA identified this as an issue in the NOD.
    On December 8, 2005, Wisconsin submitted to EPA for approval, the 
SIP revision ``Request to the EPA to Revise Wisconsin's SIP Pertaining 
to the Permanency of Construction Permit Conditions.'' Wisconsin has 
revised its statutes to make clear that all conditions in construction 
permits are permanent and remain effective unless changed using title I 
procedures or a new construction permit is issued. Wisconsin has 
revised Statute 285.66(1) to provide that, ``[n]otwithstanding the fact 
that authorization to construct, reconstruct, replace, or modify a 
source expires under this subsection, all conditions in a construction 
permit are permanent unless the conditions are revised through a 
revision of the construction permit or through the issuance of a new 
construction permit.'' This revision was adopted as part of the 
Wisconsin 2005-07 biennial budget bill enacted into law as 2005 
Wisconsin Act 25. (Published July 26, 2005.)
    EPA reviewed Wisconsin's December 8, 2005, SIP revision submittal 
and determined it was approvable because it ensures that Wisconsin's 
construction permit program is consistent with Federal program 
requirements for state permit programs. EPA published its proposed 
approval of Wisconsin's revision on January 12, 2006 (71 FR 1994). In 
this action, EPA also solicited public comments for 30 days.

II. What Comments Did We Receive?

    The public comment period on the proposed approval of Wisconsin's 
SIP revision ended on February 13, 2006. EPA did not receive any 
comments on this proposed revision.

III. What Action Is EPA Taking Today?

    EPA is approving revisions to the Wisconsin SIP which will make 
permanent all terms of Wisconsin's permits to construct, reconstruct, 
replace or modify sources unless the terms are revised through a 
revision of the construction permit or issuance of a new construction 
permit.

IV. Statutory and Executive Order Reviews Executive Order 12866: 
Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, September 30, 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 energy 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 is not economically significant.

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

[[Page 9936]]

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 1, 2006. 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, 
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

    Dated: February 16, 2006.
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 52.2587 is added to read as follows:


Sec.  52.2587  Wisconsin construction permit permanency revision.

    This plan was originally submitted as Wis. Stat. 144.396 by 
Wisconsin on July 12, 1979 and approved into Wisconsin's SIP on June 
25, 1986 (51 FR 23056). Wis. Stat. 144.396 was renumbered Wis. Stat. 
285.66 in 1995 Wisconsin Act 227, effective January 1, 1997. On 
December 8, 2005, Wisconsin submitted for EPA approval into the 
Wisconsin SIP a revision to Wis. Stats. 285.66(l), as amended in 2005 
Wisconsin Act 25, effective July 26, 2005. This revision makes all 
conditions in Wisconsin's construction permits permanent. EPA has 
determined that this statutory revision is approvable under the Act.

[FR Doc. 06-1785 Filed 2-27-06; 8:45 am]

BILLING CODE 6560-50-P
