

[Federal Register: April 12, 2007 (Volume 72, Number 70)]
[Rules and Regulations]               
[Page 18391-18394]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12ap07-15]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2006-0779; FRL-8296-3]

 
Approval and Promulgation of Air Quality Implementation Plans; 
Wisconsin; Prevention of Significant Deterioration

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is revising the Code of Federal Regulations (CFR) to give 
the Wisconsin Department of Natural Resources (WDNR) full regulatory 
responsibility for EPA-issued Prevention of Significant Deterioration 
(PSD) permits. WDNR has the necessary state legislative authority to 
take responsibility for the permits, and has demonstrated that it has 
adequate resources to maintain oversight of these permits.

DATES: This direct final rule will be effective June 11, 2007, unless 
EPA receives adverse comments by May 14, 2007. If adverse comments are 
received, EPA will publish a timely withdrawal of the direct final rule 
in the Federal Register informing the public that the rule will not 
take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2006-0779, by one of the following methods:
     http://www.regulations.gov: Follow the online instructions for 

submitting comments.
     E-mail: blakley.pamela@epa.gov.
     Fax: (312) 886-5824.
     Mail: Pamela Blakley, Chief, Air Permits Section, Air 
Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West 
Jackson Boulevard, Chicago, Illinois 60604.
     Hand Delivery: Pamela Blakley, Chief, Air Permits Section, 
Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 
West Jackson Boulevard, Chicago, Illinois 60604. Such deliveries are 
only accepted during the Regional Office normal hours of operation, and 
special arrangements should be made for deliveries of boxed 
information. The Regional Office official hours of business are Monday 
through Friday, 8:30 a.m. to 4:30 p.m. excluding Federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2006-0779. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 

provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov 

or e-mail. The http://www.regulations.gov Web site is an ``anonymous access'' 

system, which means EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an e-mail comment directly to EPA without going through 
http://www.regulations.gov your e-mail address will be automatically


[[Page 18392]]

captured and included as part of the comment that is placed in the 
public docket and made available on the Internet. If you submit an 
electronic comment, EPA recommends that you include your name and other 
contact information in the body of your comment and with any disk or 
CD-ROM you submit. If EPA cannot read your comment due to technical 
difficulties and cannot contact you for clarification, EPA may not be 
able to consider your comment. Electronic files should avoid the use of 
special characters, any form of encryption, and be free of any defects 
or viruses. For additional instructions on submitting comments, go to 
Section I of the SUPPLEMENTARY INFORMATION section of this document.
    Docket: All documents in the docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 

information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the U.S. 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 legal 
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), U.S. Environmental 
Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, 
Illinois 60604, (312) 886-3000, marcus.danny@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. What Should I Consider as I Prepare My Comments for EPA?
II. What Is Being Addressed in This Document?
III. What Action Is EPA Taking Today?
IV. Statutory and Executive Order Reviews

I. What Should I Consider as I Prepare My Comments for EPA?

A. Submitting CBI

    Do not submit this information to EPA through http://www.regulations.gov 

or e-mail. Clearly mark the part or all of the information that you 
claim to be CBI. For CBI information in a disk or CD ROM that you mail 
to EPA, mark the outside of the disk or CD ROM as CBI and then identify 
electronically within the disk or CD ROM the specific information that 
is claimed as CBI. In addition to one complete version of the comment 
that includes information claimed as CBI, a copy of the comment that 
does not contain the information claimed as CBI must be submitted for 
inclusion in the public docket. Information so marked will not be 
disclosed except in accordance with procedures set forth in 40 CFR part 
2.

B. Tips for Preparing Your Comments

    When submitting comments, remember to:
    1. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    2. Follow directions--The EPA may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    3. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    4. Describe any assumptions and provide any technical information 
and/or data that you used.
    5. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    6. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    7. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    8. Make sure to submit your comments by the comment period deadline 
identified.

II. What Is Being Addressed in This Document?

    EPA is making a revision to the CFR for the purpose of giving WDNR 
full regulatory responsibility for EPA-issued PSD permits on non-tribal 
lands.
    EPA first delegated the PSD program to WDNR on November 13, 1987, 
which was later amended by a February 16, 1989, delegation. The 1989 
delegation included language which authorized WDNR to amend EPA-issued 
PSD permits. EPA granted final full approval to Wisconsin's PSD program 
on May 27, 1999 (64 FR 28745), which became effective and was approved 
into the State Implementation Plan (SIP) on June 28, 1999. However, EPA 
stated in 40 CFR 52.2581 that its approval did not extend to sources 
with Federal PSD permits and EPA retained authority to administer the 
PSD program for those permits.
    EPA received a letter dated March 28, 2006, from WDNR regarding 
facilities within the state that have permits which require revision, 
modification, and/or updates. Allowing WDNR to have the authority to 
amend the EPA-issued PSD permits will enable WDNR to have direct access 
to modify these permits accordingly. This will facilitate permit 
tracking and identification of applicable requirements for WDNR permit 
engineers.
    The Clean Air Act contains requirements that must be met when a 
State/Local/Tribe is adopting a plan requirement. Section 
110(a)(2)(E)(i) requires that any government who wishes to carry out 
such implementation plan have ``adequate personnel, funding, and 
authority under State law.''.
    In a letter sent to EPA dated July 19, 2006, WDNR demonstrated 
state legal authority to take responsibility for the permits. WDNR's 
authority to take responsibility for EPA-issued permits can be found 
under Wisconsin's Statutes in s. 285.67, Wis. Stat., which authorizes 
WDNR to promulgate rules for revising, suspending, and revoking air 
pollution control permits. Section NR 406.11, Wis. Adm. Code, 
authorizes WDNR to revise construction permits, including PSD permits. 
In the same letter, WDNR demonstrated that it has the adequate 
resources and funding to become the primary regulating agency of the 
EPA-issued PSD permits. WDNR has 19.5 full time employees to perform 
construction permit activities under a program that annually generates 
approximately two million dollars in program revenue.
    None of the facilities with EPA-issued PSD permits which are the 
subject of this action are located in Indian Country. We do not 
anticipate that this action will have any affect on tribal rights 
within Indian country or in ceded territories.
    With this action, the regulatory text in 40 CFR 52.2581 will be 
revised to reflect that WDNR has been given full regulatory 
responsibility for EPA-issued PSD permits.

III. What Action Is EPA Taking Today?

    EPA is revising 40 CFR 52.2581 to give WDNR regulatory 
responsibility for EPA-issued PSD permits. The language, ``and sources 
with permits issued by EPA prior to the effective date of the state's 
rules,'' will be deleted. WDNR has demonstrated that it has the legal 
authority, and adequate resources, to take over full regulatory 
responsibility for the permits.

[[Page 18393]]

    We are publishing this action without prior proposal because we 
view this as a noncontroversial amendment and anticipate no adverse 
comments. However, in the proposed rules section of this Federal 
Register publication, we are publishing a separate document that will 
serve as the proposal to approve the state plan if relevant adverse 
written comments are filed. This rule will be effective June 11, 2007 
without further notice unless we receive relevant adverse written 
comments by May 14, 2007. If we receive such comments, we will withdraw 
this action before the effective date by publishing a subsequent 
document that will withdraw the final action. All public comments 
received will then be addressed in a subsequent final rule based on the 
proposed action. The EPA will not institute a second comment period. 
Any parties interested in commenting on this action should do so at 
this time. If we do not receive any comments, this action will be 
effective June 11, 2007.

IV. Statutory and Executive Order Reviews

Executive Order 12866; Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 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 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 (59 
FR 22951, 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 state 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 state submission for failure to use VCS. It would thus 
be inconsistent with applicable law for EPA, when it reviews a state 
submission, to use VCS in place of a state 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. 
section 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 June 11, 2007. 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: March 27, 2007.
Mary A. Gade,
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.

[[Page 18394]]

Subpart YY--Wisconsin

0
2. Section 52.2581 is amended by revising paragraph (d) to read as 
follows:


Sec.  52.2581  Significant deterioration of air quality.

* * * * *
    (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.
* * * * *
 [FR Doc. E7-6727 Filed 4-11-07; 8:45 am]

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