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

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

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

DATES:

Written comments must be received on or before February 13, 2006.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R05-OAR-2005-0563, by one of the following methods:

• http://www.regulations.gov: Follow the on-line instructions for submitting comments.
• E-mail: Blakley.Pamela@epa.gov.
• Fax: (312) 886-5824.
• Mail: Pamela Blakley, Chief, Air Permit Section, (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.
• Hand Delivery: Pamela Blakley, Chief, Air Permit Section, (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 p.m. excluding Federal holidays.

Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-2005-0563. 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 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 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 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. What Should I Consider as I Prepare My Comments for EPA?

II. Background Information for This Action

III. What Has Wisconsin Submitted?

IV. Does This Submittal Comply With Federal Requirements?

V. What Action is EPA Taking Today?

VI. 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. Background Information for This Action

On March 4, 2004, EPA published a Notice of Deficiency for the Clean Air Act (Act) Operating Permit Program in Wisconsin. (69 FR 10167). The NOD was based upon EPA's findings that the State's title V program did not comply with the requirements of the Act or with the implementing regulations at 40 CFR part 70.

One of the deficiencies raised in the NOD was related to the expiration of Wisconsin's construction permits. 40 CFR 70.1 requires that each title V source has a permit that assures compliance with all applicable requirements, including any term or condition of any preconstruction permit issued pursuant to programs approved or promulgated under title I, including parts C or D of the Act. Title I of the Act authorizes permitting authorities to establish in permits source specific terms and conditions necessary for sources to comply with the requirements of the Prevention of Significant Deterioration (PSD) and New Source Review (NSR) programs. These permits must remain in effect because they are the legal mechanism through which underlying NSR or PSD requirements become applicable, and remain applicable, to individual sources. (May 20, 1999, EPA Memorandum from John Seitz). If the underlying construction permit expires, then the construction permit terms would no longer be applicable requirements to the source. Additionally, 40 CFR 52.21, the federal regulation governing the PSD program, provides at 52.21(w)(1), “[a]ny permit issued under this section or a prior version of this section shall remain in effect, unless and until it expires under paragraph (s) of this section or is rescinded.”

Wisconsin statutes, Wis. Stat. 285.66(1), had provided that construction permits expire after 18 months. Consequently, EPA identified this as an issue in the NOD. Wis. Stat. 285.66 was previously numbered Wis. Stat 144.396 and had been approved into Wisconsin's SIP on June 25, 1986 (51 FR 23056), prior to EPA's approval of Wisconsin's Nonattainment NSR program (January 18, 1995, 60 FR 3538) and Wisconsin's PSD program (64 FR 28745, May 27, 1999).

III. What Has Wisconsin Submitted?

On December 8, 2005, the Wisconsin Department of Natural Resources (WDNR) submitted to EPA for approval, the SIP revision “Request to the EPA to Revise Wisconsin's SIP Pertaining to the Permanency of Construction Permit Conditions.” Wisconsin has revised its statutes to make permanent all conditions in construction permits. Wisconsin has revised Statute 285.66(1) to provide that, “[n]otwithstanding the fact that authorization to construct, reconstruct, replace, or modify a source expires under this subsection, all conditions in a construction permit are permanent unless the conditions are revised through a revision of the construction permit or through the issuance of a new construction permit.” This revision was adopted as part of the Wisconsin 2005-07 biennial budget bill enacted into law as 2005 Wisconsin Act 25. (Published July 26, 2005.)

IV. Does This Submittal Comply With Federal Requirements?

EPA reviewed Wisconsin's December 8, 2005, SIP revision submittal to determine completeness, in accordance with the completeness criteria set out at 40 CFR part 51, appendix V, and found the submittal to be complete. The next step in the review process was EPA's analysis of the State's submittal for compliance with Federal program requirements.

Wisconsin's SIP revision is necessary to correct a deficiency identified in the March 4, 2004 NOD. As noted in the March 4, 2004 NOD, title V generally does not impose new substantive air quality control requirements. Therefore, to be included in a title V permit, applicable requirements, such as terms in previously issued construction permits, must exist independent of the title V permit. EPA's approval of this SIP revision will ensure that construction permit terms are included as applicable requirements in Wisconsin's title V permits, and will satisfy the deficiency identified in the NOD. Therefore, EPA has determined that this revision is approvable.

V. What Action Is EPA Taking Today?

EPA is proposing to approve revisions to the Wisconsin SIP which will make permanent all terms of Wisconsin's permits to construct, reconstruct, replace or modify sources unless the terms are revised through a revision of the construction permit or issuance of a new construction permit. EPA is also soliciting comment on this proposed approval.

VI. 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.

Paperwork Reduction Act

This proposed 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.).

Regulatory Flexibility Act

This proposed action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed 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 proposes to approve 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 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 proposes to approve 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 13175—Consultation and Coordination With Indian Tribal Governments

This proposed 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 13045—Protection of Children From Environmental Health and Safety Risks

This proposed 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.

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).

National Technology Transfer Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), 15 U.S.C. 272, requires Federal agencies to use technical standards that are developed or adopted by voluntary consensus to carry out policy objectives, so long as such standards are not inconsistent with applicable law or otherwise impractical. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Absent a prior existing requirement for the state to use voluntary consensus standards, EPA has no authority to disapprove a SIP submission for failure to use such standards, and it would thus be inconsistent with applicable law for EPA to use voluntary consensus standards in place of a program submission that otherwise satisfies the provisions of the Clean Air Act. Therefore, the requirements of section 12(d) of the NTTA do not apply.

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