

[Federal Register: February 6, 2006 (Volume 71, Number 24)]
[Rules and Regulations]               
[Page 5979-5985]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06fe06-5]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR PART 52

[EPA-R05-OAR-2005-WI-0003; FRL-8020-1]

 
Approval and Promulgation of Implementation Plans; Wisconsin; 
General and Registration Permit Programs

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 July 28, 2005. These revisions include General and 
Registration permit programs that provide for the issuance of general 
and registration permits as part of the State's construction permit and 
operation permit programs. In addition, these permit programs may 
include the regulation of hazardous air pollutants (HAPs) which may be 
regulated under section 112 of the Clean Air Act (the Act). Thus, EPA 
is also approving Wisconsin's general and registration permit program 
under section 112(l) of the Act.
    These SIP revisions also contain changes to definitions related to 
Wisconsin's air permit program, as well as a minor technical change to 
provide correct references to the updated chapter NR 445, which was 
inadvertently omitted in the processing of that rule package. 
Additionally, these revisions clarify an existing construction permit 
exemption and operation permit exemption for certain grain storage and 
drying operations. This clarification is necessary to ensure that 
column dryers and rack dryers are included in the exemption criteria.

DATES: This final rule is effective on March 8, 2006.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2005-WI-0003. 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

[[Page 5980]]

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 and What Are Our Responses?
III. What Action Is EPA Taking Today?
IV. Statutory and Executive Order Reviews.

I. Background Information for Today's Action

    On September 20, 2005, EPA published a proposal to approve 
Wisconsin's July 28, 2005 SIP revision request, pertaining to 
registration and general permits. (70 FR 55062). This revision provides 
for the issuance of general and registration permits as part of the 
State's construction permit and operation permit programs. It also 
proposed to approve Wisconsin's general and registration permit program 
under section 112(l) of the Act, changes to definitions related to 
Wisconsin's air permit program, and clarifications to permit exemptions 
for certain grain storage and drying operations. EPA provided in the 
proposal a summary of these revisions as well as its analysis for 
determining whether the revisions complied with Federal requirements.
    In the proposal EPA solicited comments, which were due October 20, 
2005. EPA received one timely adverse comment on the proposed rule. A 
copy of this comment letter is available in the RME Docket, both 
electronically and a hard copy. A summary of the comments received and 
our responses are discussed in the section below.

II. What Comments Did We Receive and What Are Our Responses?

    The comments EPA received on the September 20, 2005, proposal 
object to giving final approval to Wisconsin's registration and general 
permit programs. Some of the comments pertain to the draft registration 
permit templates recently public noticed by WDNR. We will address in 
this rulemaking only the comments pertaining to the September 20, 2005, 
proposal. The following is a summary of the comments received and our 
responses.
    Comment: Contrary to EPA's proposed rule, Wisconsin's proposed 
general and registration permit program is not limited to ``Nonmetallic 
mineral processing plants, asphalt plants, small natural gas fired 
generators, small heating units, printing presses, and hospital 
sterilization equipment.''
    Response: The proposal stated, ``Categories of sources that are or 
could be eligible for general permits include nonmetallic mineral 
processing plants, asphalt plants, small natural gas fired generators, 
small heating units, printing presses and hospital sterilization 
equipment.'' The proposal did not state that these were the only 
sources eligible, nor did it state the list was inclusive. The list was 
only meant to provide examples of source types that WDNR had given as 
examples in its proposal.
    Comment: The proposed changes do not comply with the requirements 
of 40 CFR Part 51, section 110 of the Act and fail to ensure the 
protection of the National Ambient Air Quality Standards (NAAQS). 40 
CFR 51.160 requires states to have legally enforceable procedures to 
prevent construction or modification of a source if it would violate 
any control strategies in the SIP or interfere with attainment or 
maintenance of the NAAQS. NR 406.11(1)(g), the proposed provision that 
would prevent coverage for sources that cause or exacerbate a NAAQS (or 
increment) does not actually include a pre-construction determination 
of air quality impacts. The air quality review in this provision is 
retrospective, not prospective pre-construction review.
    The general and registration permits being proposed allow 
construction or modification in areas of the state with very different 
existing background air pollution concentrations, number of sources, 
and terrain. There can be no pre-permit air analysis that will 
determine whether air quality standards will be violated by any 
specific source that will construct or modify under a general or 
registration permit. Additionally, there is no limit on the emission 
rate or the number of sources that can be covered by a general or 
registration permit. As a result, a large number of relatively-small 
sources can locate into the same area and, cumulatively, cause a 
violation of NAAQS, or a facility can emit large quantities of 
pollutants over a short period of time.
    Response: WDNR must assure that these permit programs do not 
violate the NAAQS. WDNR is requiring the applicant to perform an air 
dispersion modeling analysis as part of its application for coverage. 
The analysis must include modeling for all criteria pollutants; 
however, because there are no increments for volatile organic compounds 
(VOC) (a pre-curser to ozone), an applicant must submit an analysis for 
VOC only if the emissions are above the major source threshold for 
permitting. Regarding ozone, ``No significant ambient impact 
concentration has been established. Instead, any net emissions increase 
of 100 tons per year of VOC subject to PSD would be required to perform 
an ambient impact analysis.'' 1990 New Source Review Workshop Manual, 
Page C.28, footnote b. However, because the pollutant of concern is 
ozone and the standard Gaussian models used for PSD (i.e., ISCST3 or 
AERMOD) don't estimate ozone concentrations, determining ozone impacts 
from individual sources is difficult. Thus, states often use another 
type of analysis for VOC.
    Upon receipt of the application and analysis, the WDNR has 15 days 
to determine whether the source is eligible for coverage under a 
general or registration construction permit, as provided in NR 
406.16(3)(c) and 407.17(4)(c).
    NR 406.11(1)(g) provides that the source may conduct the air 
quality determination after the determination that the source is 
covered under the general or registration construction permit. However, 
NR 406.16(2)(c) and 406.17(3) also provide that if an emissions unit or 
units cause or exacerbate, or may cause or exacerbate, a violation of 
any ambient air quality standard or ambient air increment, a source is 
ineligible for coverage under the general or registration construction 
permit. By requiring the permittee to submit a modeling analysis, 
combined with these provisions in NR 406, WDNR will ensure that a 
source will not violate the NAAQS.
    Further, nothing in the proposed revisions relieves any source from 
the requirement to submit its yearly emissions for inclusion in the 
emissions inventory. A note in the rule after section NR 406.17(4)(e) 
and 407.105(4)(e) states, ``Note: The permit terms and conditions may 
include capture and control efficiencies. The Air Emissions Management 
System (AEMS) requires the owner or operator of a source to calculate 
actual annual emissions for reporting to the inventory using the terms 
and conditions in a

[[Page 5981]]

permit.'' The data in the emissions inventory is also used for purposes 
of determining compliance with NAAQS.
    Comment: Even when the WDNR revokes a permit due to a violation of 
NAAQS or an increment, the violating source is authorized to continue 
operating under the general or registration permit until a subsequent 
permit is issued. NR 406.11(1)(g)(2) provides that the permittee is 
``deemed to be in compliance with the requirement to obtain a 
construction permit until the department takes final action on a 
subsequent application for a construction permit. . .''
    Section NR 407.105 of the proposed revisions, also allow a facility 
to be deemed ``in compliance'' with the SIP for 90 days even if the 
facility did not determine that a SIP requirement applied and is not in 
compliance with the limit. Additionally, the ``safe harbor'' language 
in the proposed provision is essentially a permit shield, which extends 
to requirements which were never included specifically in a permit, 
either as an applicable requirement or in a non-applicability 
determination.
    Response: Since EPA's September 20, 2005, proposed approval of this 
rule, WDNR has withdrawn provisions NR 406.11(1)(g)(2), 407.105(7), and 
407.15(8)(b) for inclusion in its SIP.
    Comment: The proposed changes do not comply with the public 
participation requirements and procedures required by 40 CFR parts 51 
and 70. The public notice and comment procedure required by part 51 is 
not satisfied by merely allowing notice and comment on a generic 
permit, which WDNR later applies to specific facilities. The required 
public notice and comment process requires public inspection of the 
information provided by the applicant and the agency's analysis of the 
effect on air quality. There is no provision in the proposed general 
and registration permit program whereby the public gets notice and the 
ability to comment on ``the information submitted by the owner or 
operator and of the State or local agency's analysis of the effect on 
air quality.'' 40 CFR 51.161(b).
    Further, proposed section NR 406.16(1)(c) states that ``the 
procedural requirements in s. 285.61(2) to (8), Stats., do not apply to 
the determination of whether an individual source is covered by a 
general construction permit for a source category.'' Proposed section 
NR 406.17(1)(b) contains similar language for registration permits.
    In addition, the general part 70 permits don't comply with the 
public notice requirements of part 70. The WDNR must provide the public 
with, inter alia: the identity of the affected facility; the name and 
address of the permittee; the name and address of the permitting 
authority processing the permit; the activity or activities involved in 
the permit action; the emissions change involved in any permit 
modification; the name, address, and telephone number of a person from 
whom interested persons may obtain additional information, including 
copies of the permit draft, the application, all relevant supporting 
materials, and all other materials available to the permitting 
authority that are relevant to the permit decision. The Act also 
requires application materials, including compliance certification and 
compliance plans, to be made public.
    Response: As discussed in the proposal, EPA has determined that, in 
cases where standardized permits have been adopted, EPA and the public 
need not be involved in their application to individual sources as long 
as the standard permits themselves have been subject to notice and 
opportunity to comment. Specifically, EPA's January 25, 1995 memorandum 
``Guidance on Enforceability Requirements for Limiting Potential to 
Emit through SIP and Sec.  112 Rules and General Permits'' states that 
``since the rule establishing the program does not provide the specific 
standards to be met by the source, each general permit, but not each 
application under each general permit, must be issued pursuant to 
public and EPA notice and comment.'' P.10
    EPA's April 14, 1998, guidance from John S. Seitz, ``Potential to 
Emit (PTE) Guidance for Specific Source Categories'' states, ``There 
are two overall approaches that States and local agencies can use to 
establish enforceable emission limits* * * Under the second approach, 
generally appropriate for less complex sources, States and local 
agencies create a standard set of terms and conditions for many similar 
sources at the same time. The terms air quality agencies use to 
describe this approach include ``general permits,'' ``prohibitory 
rules,'' ``exclusionary rules,'' and ``permits-by-rule.'' (From this 
point on, rather than to repeat each of these terms, this guidance will 
use the term ``prohibitory rule'' for the latter three terms.)'' This 
guidance further states, ``State ``prohibitory rules'' are similar to 
general permits, but States or local agencies put them in place with a 
regulation development process rather than a permitting process.''
    Additionally, EPA's January 25, 1995, Memorandum from John S. 
Seitz, ``Options for Limiting the Potential to Emit (PTE) of a 
Stationary Source Under Section 112 and Title V of the Clean Air Act'', 
states, ``A concept similar to the exclusionary rule is the 
establishment of a general permit for a given source type. A general 
permit is a single permit that establishes terms and conditions that 
must be complied with by all sources subject to that permit. The 
establishment of a general permit provides for conditions limiting 
potential to emit in a one-time permitting process, and thus avoids the 
need to issue separate permits for each source within the covered 
source type or category.''
    The State of Massachusetts, ``Summary of Comments and Responses to 
Comments from Public Hearing on Proposed Amendments to 310 CMR 7.00'', 
to which the commenters cite, states, ``EPA interprets its regulations 
at 40 CFR 51.160 to require that all proposed sources undergo full 
permit review before construction, with the exception of sources 
constructed pursuant to prohibitory rules.''
    EPA has stated in guidance that prohibitory rules and general 
permits are essentially similar, and that neither require individual 
permit review. Thus, a one-time permit process can be used if the 
general permit receives full review. While EPA's guidance documents 
pertaining to general permits generally apply to operation permits, the 
concept can also be applied to general construction permits, as these 
are similar to construction pursuant to prohibitory rules. Every 
general permit issued to a source would not need to go through full 
review if the general permit did, provided certain materials are still 
made available to the public.
    WDNR must make available to the public all of the permit 
information listed in parts 51 and 70. Similar to the construction and 
operation permits WDNR issues, the registration and general permits 
will also be available on a WDNR Web site. An up-to-date list of 
sources covered by registration or general permits, with all of the 
required permittee and facility information, as well the electronic 
application, will be available to view on-line. In addition, anyone can 
request to view any permit related materials by contacting the WDNR.
    Regarding NR 406.16(1)(c) which states that, ``The department may 
issue the general construction permit if the applicable criteria in s. 
285.63, Stats., are met. The procedural requirements in s. 285.61(2) to 
(8), Stats., do not apply to the determination of whether an individual 
source is covered by a general construction permit for a source 
category.'' There is a note that follows

[[Page 5982]]

this section which states, ``The statutes cited above require that when 
issuing a general construction permit, the department distribute a 
notice of the availability of the proposed general construction permit 
and of the department's analysis and preliminary determination, a 
notice of the opportunity for public comment and a notice of the 
opportunity to request a public hearing. There will be a 30-day public 
comment period and the department may hold a public hearing within 60 
days after the deadline for requesting one.''
    Wisconsin Stat. 285.63, which contains the criteria for permit 
approval, requires the source to meet all applicable emission 
limitations; and prohibits the source from violating or exacerbating an 
air quality standard or ambient air increment, and from precluding 
construction or operation of other sources. Wisconsin Stat. 285.61(2) 
to (8) contains the procedural requirements for construction permit 
application and review, and requires the WDNR to: prepare an analysis 
regarding the effect of the proposed construction, distribute and 
publicize the analysis and a notice of the opportunity to request a 
public hearing, receive public comments, and hold a public hearing on 
the construction permit if requested.
    As discussed above, because the general permit will go through the 
procedures in Stat. 285, these procedures will not be required each 
time the general permit is issued to a specific source.
    Comment: The proposed revisions allow the WDNR to determine that 
the requirements of NR 424.03(2)(a) or (b) are technologically 
infeasible for every source that will potentially be covered under a 
general or registration permit. Provision NR 424.03 requires WDNR to 
determine whether 85% reduction of VOCs is technologically infeasible.
    Response: NR 406.16(1)(d) states, ``* * * Notwithstanding the 
requirement in s. NR 424.03(2)(c) to determine the latest available 
control techniques and operating practices demonstrating best current 
technology (LACT) for a specific process line, the department may 
include conditions in the general construction permit that represent 
LACT, if the requirements of s. NR 424.03(2)(a) or (b) are determined 
to be technologically infeasible.'' Similar language is included in and 
406.17(1)(d), 407.10(1)(d), and 407.105(1)(c).
    Wisconsin Stat. NR 424.03 requires 85% control of VOCs for certain 
sources. NR 424.03(2)(b)(2) states, ``Where 85% control has been 
demonstrated to be technologically infeasible for a specific process 
line, control organic compound emissions by the use of the latest 
available control techniques and operating practices demonstrating best 
current technology, as approved by the Department.'' NR 424.03(3) 
further states, ``Surface coating and printing processes subject to the 
requirements of this section may instead elect, with the approval of 
the Department, to meet the emission limitations of s. NR 422.01 to 
422.155, notwithstanding ss. NR 422.03(1), (2), (3) or (4) and 425.03, 
provided that: (a) The process line meets the specific applicability 
requirements of ss. NR 422.05 to 422.155; and (b) The owner or operator 
submits a written request to the department * * *'' (NR 422.01 to 
422.155 provides specific conditions for the control of VOC emissions 
for various types of surface coating, printing and asphalt surfacing 
operations.)
    Wisconsin's rule 424.03(2)(b)(2) does not require a case-by-case or 
permit-by-permit analysis, and gives the WDNR the authority to made 
such determinations. The WDNR is making such a determination for the 
general construction permits. EPA believes this is consistent with 
Wisconsin's authority under 424.03.
    Comment: The proposed rule provides that no construction permit is 
required if construction, reconstruction, or modification does not 
violate the term of a general operating permit. However, many 
requirements in the Wisconsin SIP are triggered, and become more 
stringent, when a source is modified or reconstructed. The proposed NR 
407.10(4) does not prevent construction and modification, but does not 
require compliance with the more stringent SIP limits, which may become 
applicable, such as opacity. In fact, it does not require the source to 
notify the WDNR or EPA that it made the change. Instead, the proposed 
NR 407.10(4) merely requires the source to comply with the existing SIP 
limit.
    Response: If a source with a general permit becomes subject to an 
applicable requirement, such as an opacity limit, that is different 
from the limit included in the general permit, or that is not included 
in the general permit, then the source no longer qualifies for that 
general permit. NR 407.10(4)(a)(1) provides, ``Notwithstanding the 
provisions in s. NR 406.04(1) and (2), no construction permit is 
required prior to commencing construction, reconstruction, replacement, 
relocation or modification of a stationary source if the source is 
covered under a general operation permit and all of the following 
criteria are met: 1. The construction, reconstruction, replacement, 
relocation or modification will not result in the source violating any 
term or condition of the general operation permit.''
    Furthermore, if construction causes a new requirement to become 
applicable that is not in the general permit, the source would no 
longer be eligible for the general permit and would need to apply for 
another permit. NR 407.10(3)(b) provides ``(b) An owner or operator of 
a stationary source who requests or requires emission limits, terms or 
conditions other than, or in addition to, those contained in the 
general operation permit shall apply for a different type of permit.'' 
(Emphasis added.) Further, coverage under a general permit does not 
preclude a source from complying with Stat. 285.63, which requires 
sources to comply with all applicable requirements.
    Comment: The operating permit program will not require that all 
emissions, limitations, controls and other requirements imposed by such 
permits will be at least as stringent as any other applicable imitation 
or requirement contained in the SIP.
    Further, the rules and the draft permits already issued by WDNR 
under the proposed SIP revision do not identify what limits, controls 
and requirements apply to a source. Instead, the permit requires the 
owner or operator to ``meet all applicable air pollution requirements 
in ch. 285, Wis. Stats., and chs. NR 400-NR 499, and therefore, there 
is no way for the requirement to be enforced.
    Response: The registration and general permit rule is not a 
prohibitory rule and, thus, the permits, not the rule itself, will 
contain the emissions limitations, controls and other requirements 
applicable to the source. The rule requires the operation permits to 
contain these conditions, and NR 407.105(1)(c) provides, ``The 
registration operation permit shall contain applicability criteria, 
emission caps and limitations, monitoring and record keeping 
requirements, reporting requirements, compliance demonstration methods 
and general conditions appropriate for determining compliance with the 
terms and conditions of the registration operation permit. The permit 
terms and conditions shall be those required to comply with the Act and 
those required to assure compliance with applicable provisions in ch. 
285, Stats., and chs. NR 400 to 499.'' NR 407.10(1)(d) also provides, 
``The general operation permit shall contain applicability criteria, 
emission limits, monitoring and record keeping requirements, reporting

[[Page 5983]]

requirements, compliance demonstration methods and general conditions 
applicable to the stationary source category. The permit terms and 
conditions shall be those required to comply with the Act and those 
required to assure compliance with applicable provisions in ch. 285, 
Stats., and chs. NR 400 to 499.''
    As discussed in the previous response, coverage under a general or 
registration permit does not preclude a source from complying with 
Stat. 285.63, which requires sources to comply with all applicable 
requirements. Therefore, the permits must contain conditions that will 
be at least as stringent as any other applicable imitation or 
requirement contained in the SIP.
    Comment: The proposed permit programs do not ensure that 
limitations, controls, and requirements are permanent, quantifiable, 
and otherwise enforceable as a practical matter. The proposed 
provisions rely on an annual 25 tons per year (TPY) cap on emissions, 
rather than a production limit. This violates EPA policy that synthetic 
minor permits must contain a limit on production to be practically 
enforceable.
    Response: The limitations, controls, and requirements in the 
general and registration construction and minor operation permits are 
permanent, as these permits do not expire. However, general part 70 
permits have a permit term of 5 years as required by 40 CFR 70.6(a)(2). 
NR 407.10(1)(e) provides, ``The term of a general operation permit 
issued to a part 70 source category, or granted to an individual part 
70 source, may not exceed 5 years. General operation permits issued to 
a non-part 70 source category, or granted to an individual non-part 70 
source, shall only expire if an expiration date is requested by the 
source owner or operator or the department finds that expiring coverage 
would significantly improve the likelihood of continuing compliance 
with applicable requirements, compared to coverage that does not 
expire.''
    The limitations in the permits must be quantifiable. NR 
407.15(2)(a)(1) requires, ``The calendar year sum of actual emissions 
of each air contaminant from the facility may not exceed 25% of any 
major source threshold in s. NR 407.02(4), except that for lead, 
emissions may not exceed 0.5 tons per calendar year.'' The permits must 
provide a mechanism to demonstrate the source will meet these 
limitations, and the rule requires the permits to contain emission 
limits, monitoring and record keeping requirements, reporting 
requirements, compliance demonstration methods in order to determine 
compliance with all limits.
    Additionally, the limitations, controls, and requirements in the 
permits must be practically enforceable. EPA has discussed practical 
enforceability in various guidance documents. EPA's January 25, 1995, 
John S. Seitz memorandum, ``Options for Limiting the Potential to Emit 
(PTE) of a Stationary Source Under Section 112 and Title V of the Clean 
Air Act'', states,

    Consequently, in all cases, limitations and restrictions must be 
of sufficient quality and quantity to ensure accountability (see 54 
FR 27283). * * * In general, practicable enforceability for a 
source-specific permit means that the permit's provisions must 
specify: (1) A technically-accurate limitation and the portions of 
the source subject to the limitation; (2) the time period for the 
limitation (hourly, daily, monthly, and annual limits such as 
rolling annual limits); and (3) the method to determine compliance 
including appropriate monitoring, record keeping, and reporting. For 
rules and general permits that apply to categories of sources, 
practicable enforceability additionally requires that the 
provisions: (1) Identify the types or categories of sources that are 
covered by the rule; (2) where coverage is optional, provide for 
notice to the permitting authority of the source's election to be 
covered by the rule; and (3) specify the enforcement consequences 
relevant to the rule.

    Wisconsin's rule meets these requirements. The rule at NR 
407.105(1)(c) and 407.10(1)(d) requires the permits to contain adequate 
emission caps and limitations, monitoring and record keeping 
requirements, reporting requirements, compliance demonstration methods 
and general conditions for determining compliance. Additionally, the 
rule at NR 407.10(1)(b) identifies the types or categories of sources 
that can be covered by the general permit, and coverage is elective, as 
provided by NR 407.10(3)(a). Further, if a facility covered by a 
registration or general permit emits more than its permitted cap, or 
does not comply with a permit term, it will no longer be eligible for 
the registration or general permit.

III. What Action Is EPA Taking Today?

    After carefully reviewing and considering the issues raised by the 
commenter, EPA is taking final action to approve the proposed SIP 
revision. EPA is approving all revisions to Wisconsin SIP rules NR 400, 
406, 407, and 410 submitted by the State on July 28, 2005, except the 
sections which Wisconsin later withdrew from consideration. The general 
construction and operation permit provisions are codified at NR 406.16 
and NR 407.10 of the Wisconsin Administrative Code, respectively. 
Registration construction and operation permit provisions are codified 
at NR 406.17 and NR 407.105, respectively. EPA is also approving 
Wisconsin's general permit program under section 112(l) of the Act for 
the purpose of creating federally enforceable limitations on the 
potential to emit HAPs regulated under section 112.
    This SIP revision amends provisions of Wisconsin's construction and 
operation permit programs, NR 406.04(1) and NR 407.03(1), respectively, 
relating to an existing exemption for certain grain storage and 
processing facilities from needing to obtain a construction or 
operation permit. Additionally, several sections in NR 406 and NR 407 
are renumbered because of the addition of new provisions and 
definitions, and changes are being made to NR 410.03(1)(a)(5), NR 
410.03(1)(a)(6) and (7), Wisconsin's air permit fee rules. EPA is not 
approving NR 406.11(1)(g)(2), 407.107(7), and 407.15(8)(b) which were 
included in the State's July 28, 2005, submittal because WDNR has since 
withdrawn these provisions from inclusion in its SIP. See letter from 
Lloyd L. Eagan, Director, to Thomas Skinner, Regional Administrator, 
dated November 14, 2005, in which Wisconsin withdrew the cited sections 
from its July 28, 2005 submission.
    Specifically, the approved SIP revision repeals NR 406.04(1)(c) and 
407.03(1)(c); renumbers NR 406.02(1) to (4); amends NR 406.04(1)(ce), 
(cm) and (m)(intro.), 406.11(1)(intro.) and (c), 407.03(1)(ce) and 
(cm), 407.05(7), 407.15(intro.) and (3), 410.03(1)(a)(5), and 
484.05(1); repeals and recreates NR 407.02(3) and 407.10; and creates 
NR 400.02(73m) and (131m), 406.02(1) and (2), 406.04(2m), 
406.11(1)(g)(1), 406.11(3), 406.16, 406.17, 406.18, 407.02(3m), 
407.105(1) to (6), 407.107, 407.14 Note, 407.14(4)(c), 407.15(8)(a) and 
410.03(1)(a)(6) and (7).

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.

[[Page 5984]]

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 (Public Law 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 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 April 7, 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, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: December 27, 2005.
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)(113) to read as 
follows:


Sec.  52.2570  Identification of plan.

* * * * *
    (c) * * *
    (113) Approval--On July 28, 2005, Wisconsin submitted General and 
Registration construction and operation permitting programs for EPA 
approval into the Wisconsin SIP. EPA also is approving these programs 
under section 112(l) of the Act. EPA has determined that these 
permitting programs are approvable under the Act, with the exception of 
sections NR 406.11(1)(g)(2), 407.105(7), and 407.15(8)(b), which 
Wisconsin withdrew from consideration on November 14, 2005. Finally, 
EPA is removing from the state SIP NR 406.04(1)(c) and 407.03(1)(c), 
the exemption for certain grain storage and processing facilities from 
needing to obtain a construction or operation permit, previously 
approved in paragraphs (c)(75) and (c)(76) of this section.
    (i) Incorporation by reference.
    (A) NR 406.02(1) through (4), amended and published in the 
(Wisconsin) Register, August 2005, No. 596, effective September 1, 
2005.
    (B) NR 406.04(1) (ce), (cm) and (m) (intro.), 406.11(1) (intro.) 
and (c), 407.03(1) (ce) and (cm), 407.05(7), 407.15 (intro.) and (3), 
410.03(1)(a)(5), and 484.05(1) as amended and

[[Page 5985]]

published in the (Wisconsin) Register, August 2005, No. 596, effective 
September 1, 2005.
    (C) NR 407.02(3) and 407.10 as repealed, recreated and published in 
the (Wisconsin) Register, August 2005, No. 596 effective September 1, 
2005.
    (D) NR 400.02(73m) and (131m), 406.02(1) and (2), 406.04(2m), 
406.11(1)(g)(1), 406.11(3), 406.16, 406.17, 406.18, 407.02(3m), 407.105 
(1) through (6), 407.107, 407.14 Note, 407.14(4)(c), 407.15(8)(a), and 
410.03(1)(a)(6) and (7) as created and published in the (Wisconsin) 
Register, August 2005, No. 596, effective September 1, 2005.

[FR Doc. 06-1030 Filed 2-3-06; 8:45 am]

BILLING CODE 6560-50-P
