[Federal Register Volume 71, Number 24 (Monday, February 6, 2006)]
[Rules and Regulations]
[Pages 5979-5985]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-1030]
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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, [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. 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