76560 Federal Register / Vol. 73, No. 243 / Wednesday, December 17, 2008 / Rules and Regulations 

Accordingly, this action merely 

approves state law as meeting Federal 

requirements and does not impose 

additional requirements beyond those 

imposed by state law. For that reason, 

this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• 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); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

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 action 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 February 17, 

2009. Filing a petition for 

reconsideration by the Administrator of 

this final rule does not affect the finality 

of this action 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 8, 2008. 

Lynn Buhl, 

Regional Administrator, Region 5. 

■ 40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart YY—Wisconsin 

■ 2. Section 52.2570 is amended by 

adding paragraph (c)(120) to read as 

follows: 

§ 52.2570 Identification of plan. 

* * * * * 

(c)* * * 

(120) On May 25, 2006, Wisconsin 

submitted for EPA approval into the 

Wisconsin SIP a revision to renumber 

and amend NR 410.03(1)(b); to amend 

410.03(intro.) and to create NR 406.035, 

406.04(1f) and (1k), 406.07(3), 

406.11(1m), 410.03(1)(a)8. to 10. and 

(b)(intro.) and 2. to 4. relating to changes 

to chs. NR 406 and 410, the state air 

permitting programs, with Federal 

changes to air permitting program and 

affecting small business. The rule 

revision being approved in this action 

has been created to update Wisconsin’s 

minor NSR construction permit program 

to include changes to implement some 

of the new elements of the Federal NSR 

Reform rules for sources that meet 

certain requirements within the new 

major NSR permitting requirements. 

EPA has determined that this revision is 

approvable under the Act. 

(i) Incorporation by reference. The 

following sections of the Wisconsin 

Administrative Code are incorporated 

by reference: 

(A) NR 406.035 Establishment or 

distribution of plant-wide applicability 

limitations, as published in the 

Wisconsin Administrative Register, June 

30, 2007, No. 618, effective July 1, 2007. 

(B) NR 406.04 Direct sources exempt 

from construction permit requirements. 

NR 406.04(1f) and NR 406.04(1k), as 

published in the Wisconsin 

Administrative Register, June 30, 2007, 

No. 618, effective July 1, 2007. 

(C) NR 406.07 Scope of permit 

exemption. NR 406.07(3), as published 

in the Wisconsin Administrative 

Register, June 30, 2007, No. 618, 

effective July 1, 2007. 

(D) NR 406.11 Construction permit 

revision, suspension and revocation. NR 

406.11(1m), as published in the 

Wisconsin Administrative Register, June 

30, 2007, No. 618, effective July 1, 2007. 

(E) NR 410.03 Application fee. NR 

410.03(intro.), NR 410.03(1)(a) 8 to 10, 

NR 410.03(1)(b), as published in the 

Wisconsin Administrative Register, June 

30, 2007, No. 618, effective July 1, 2007. 

* * * * * 

[FR Doc. E8–29817 Filed 12–16–08; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2006–0609; FRL–8748–9] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Wisconsin; NSR Reform Regulations, 

Rule AM–06–04 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving certain 

revisions to Wisconsin’s prevention of 

significant deterioration (PSD) and nonattainment new source review (NANSR) 

construction permit programs, which 

Wisconsin submitted on May 25, 2006. 

The Wisconsin Department of Natural 

Resources (WDNR) is seeking approval 

of rule AM–06–04 to implement the 


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NSR Reform provisions that were not 

vacated by the United States Court of 

Appeals for the District of Columbia 

(D.C. Circuit) in New York v. EPA. EPA 

proposed approval of these rules on 

April 20, 2007 and received adverse 

comments. In this action, EPA responds 

to these comments and announces 

EPA’s final rulemaking action. This 

action affects major stationary sources 

in Wisconsin that are subject to or 

potentially subject to the PSD and 

NANSR construction permit programs. 

DATES: This final rule is effective on 

January 16, 2009. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R05–OAR–2006–0609. All 

documents in the docket are listed on 

the 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 

www.regulations.gov or in hard copy at 

the Environmental Protection Agency, 

Region 5, Air and Radiation Division, 77 

West Jackson Boulevard, Chicago, 

Illinois 60604. This facility is open from 

8:30 a.m. to 4:30 p.m., Monday through 

Friday, excluding Federal holidays. We 

recommend that you telephone 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), EPA Region 5, 77 

West Jackson Boulevard, Chicago, 

Illinois 60604, (312) 353–8781, 

marcus.danny@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. What is being addressed by this document? 

II. What sections of Wisconsin’s rules are we 

approving in this action? 

III. How has this rulemaking been affected by 

the December 21, 2007 rulemaking 

which clarifies the ‘‘reasonable 

possibility’’ provision? 

IV. What are EPA’s responses to adverse 

comments? 

V. What action is EPA taking? 

VI. Statutory and Executive Order Reviews 

I. What is being addressed by this 

document? 

We are approving rule AM–06–04 as 

a revision to the PSD and NANSR 

construction permit programs for the 

State of Wisconsin. EPA granted final 

approval to Wisconsin’s NANSR 

program on January 18, 1995 (60 FR 

3538) and the approval became effective 

on February 17, 1995. EPA granted final 

approval to Wisconsin’s PSD program 

on May 27, 1999 (64 FR 28745), which 

became effective on June 28, 1999. 

On December 31, 2002, EPA 

published revisions to the Federal PSD 

and NANSR regulations in 40 CFR Parts 

51 and 52 (67 FR 80186). These 

revisions are commonly referred to as 

the New Source Review (NSR) Reform 

Rule and became effective on March 3, 

2003. These regulatory revisions 

included provisions for establishing 

Plant-wide Applicability Limits (PALs), 

Clean Units and Pollution Control 

Projects (PCPs), for determining baseline 

actual emissions, and for promulgating 

the actual-to-future-actual methodology. 

As stated in the December 31, 2002, 

EPA rulemaking, state and local 

permitting agencies were required to 

adopt and submit revisions to their part 

51 permitting programs implementing 

the minimum program elements of that 

rulemaking no later than January 2, 

2006 (67 FR 80240). With this action, 

we are approving WDNR’s program 

revisions that satisfy this requirement. 

WDNR originally prepared rule 

changes to adopt a version of the 

Federal rule revisions, which were 

subsequently authorized by the 

Wisconsin Natural Resources Board for 

public hearing in December 2003. On 

June 24, 2005, the DC Circuit issued its 

ruling on challenges to the December 

2002 NSR Reform Rule. New York v. 

EPA, 413 F.3d 3 (DC. Cir 2005). 

Although the court upheld most of 

EPA’s rules, it vacated both the Clean 

Unit and the PCP provisions. In 

addition, the court remanded to EPA the 

‘‘reasonable possibility’’ provision for 

reporting and recordkeeping. In 

response, on December 21, 2007, EPA 

published a rule that clarifies the 

recordkeeping and reporting standards 

of the 2002 rule. 

After the DC Circuit ruled on the 

challenges to the Federal NSR Reform 

Rule, WDNR adopted those portions of 

the Reform Rule that the court upheld, 

and modified the portion that the court 

remanded to EPA in accordance with 

the court’s instructions. WDNR 

submitted the revisions to EPA on May 

25, 2006. These revisions are consistent 

with the current provisions of the NSR 

Reform Rule following the ruling of the 

DC Circuit. 

II. What sections of Wisconsin’s rules 

are we approving in this action? 

We are approving amendments to 

provisions of the PSD and NANSR 

construction permit programs in the 

Wisconsin State Implementation Plan 

(SIP). Please refer to the proposed rule 

of this action which includes a detailed 

explanation of the provisions that are 

being approved. This final action 

amends the following provisions within 

NR 405, NR 408, and NR 484: NR 

405.01(1) and (2), NR 405.02(1), NR 

405.02(1)(d), NR 405.02(2m), NR 

405.02(8) and (11), NR 405.02(11c), 

(11e) and (11j), NR 405.02(12), NR 

405.02(20m), NR 405.02(21) and (24), 

NR 405.02(24j), NR 405.02(24m), NR 

405.02(25b), (25d), (25e), (25f) and (25i), 

NR 405.02(27)(a)8., 17., and 18., NR 

405.02(27m), NR 405.025, NR 405.16(3) 

and (4), NR 405.18(1) to (15), NR 

408.02(1), NR 408.02(2m), NR 408.02(4), 

(5), and (11), NR 408.02(11e), (11m) and 

(11s), NR 408.02(13), NR 408.02(13m), 

NR 408.02(20), NR 

408.02(21)(a)1.(intro), NR 408.02(23), 

NR 408.02(24m) and (25s), NR 

408.02(27), NR 408.02(28e), (28j), (28m), 

(28s), (29m), and (32m), NR 408.025, NR 

408.06(10), NR 408.10(5) and (6), NR 

408.11(1) to (15), NR 484.04(21), and NR 

484.04(27m). 

III. How has this rulemaking been 

affected by the December 21, 2007 

rulemaking which clarifies the 

‘‘reasonable possibility’’ provision? 

As part of its ruling on challenges to 

the December 2002 NSR Reform Rule, 

the DC Circuit remanded to EPA the 

‘‘reasonable possibility’’ provision 

regarding reporting and recordkeeping. 

New York v. EPA, 413 F.3d at 35–36. In 

response, on December 21, 2007, EPA 

published a rule (72 FR 72607) that 

clarifies the recordkeeping and 

reporting standards of the 2002 rule. 

The rule adds further clarification to the 

criteria determining whether a source 

experiencing a physical change or 

change in the method of operation that 

does not trigger major NSR permitting 

requirements must keep records. The 

standard also specifies the 

recordkeeping requirements for such 

sources. 

WDNR requires any facility that 

chooses to use the ‘‘past-actual-tofuture-actual’’ provision to satisfy the 

recordkeeping and reporting standards. 

NR 405.16(3) and NR 408.10(5) are more 

stringent than the criteria established by 

EPA to determine whether a facility is 

subject to the recordkeeping and 

reporting requirements. See 40 CFR 

51.165(a)(6) and 40 CFR 51.166(r)(6). 

The preamble to the December 21, 

2007, rule states that state and local 

authorities have the option of making 

their regulations more stringent than 

these rules. The preamble also states 

that state and local authorities that have 

regulations within their SIP, which they 


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believe fulfills the minimum criteria of 

the December 21, 2007, rulemaking, 

must submit notice acknowledging that 

their rules are at least as stringent as the 

Federal rules within three years of 

December 21, 2007. We have concluded 

that the revisions that we are approving 

today into Wisconsin’s SIP are 

consistent with the December 21, 2007 

rulemaking. 

IV. What are EPA’s responses to 

adverse comments? 

EPA received comments both in 

support of and in opposition to 

Wisconsin’s rules. The Sierra Club 

provided adverse comments on EPA’s 

April 20, 2007, proposed rule approval. 

EPA responded to these adverse 

comments in a document that can be 

found in the official docket for this 

action. The document is titled, 

‘‘Response to Comments by the Sierra 

Club on NSR Reform Regulations.’’ 

Below are EPA’s responses to each of 

the Sierra Club’s comments, which are 

set forth in full in the aforementioned 

document: 

Comment I: The Proposed 

Modifications to Wisconsin’s SIP are an 

Impermissible Backslide. 

Response: The Federal NSR Reform 

Rule was upheld by the DC Circuit in 

New York v. EPA, 413 F.3d 3 (DC Cir. 

2005), with the exception of the 

Pollution Control Project, Clean Unit, 

and ‘‘reasonable possibility’’ provisions. 

Therefore, with the exceptions noted, 

the revisions to Wisconsin’s NSR rules, 

which are based on the Federal NSR 

Reform Rule, have already withstood 

judicial scrutiny and are lawful. EPA 

addresses the commenter’s specific 

points as follows: 

a. As addressed in the national 

Rulemaking, the proposed NSR Reform 

Rule of 1996, 61 FR 38250 (July 23, 

1996) addressed the provision for the 

actual-to-future-actual method of 

determining whether or not a source is 

subject to major NSR. Thus, the 

appropriate time to have commented on 

this provision was prior to October 21, 

1996, the close of the public comment 

period. EPA has found that while the 

actual-to-projected-actual test would 

reduce the number of sources that 

would need to take permit limits, the 

environmental benefit of these permit 

limits is preserved, because any source 

projecting no significant net emissions 

increase must stay within that 

projection or comply with NSR. 

Furthermore, in Wisconsin, a minor 

increase in emissions, even if small 

enough not to trigger major NSR, is still 

required to meet the criteria of NR 

406.04(1k) of WDNR’s SIP. Facilities 

that are able to net out of permit review 

under the actual-to-actual provision are 

still required to ensure that the 

modifications do not cause or 

exacerbate an air quality increment or 

air quality standard. 

b. The test developed in Wisconsin 

Electric Power Company v. Reilly, 893 

F.2d 901, 904 (7th Cir. 1990), as a result 

of the NSR Reform Rule, applies to all 

facilities and not just power plants. EPA 

found that the ten-year look back period 

promotes economic growth and 

administrative efficiency by affording 

sources the flexibility to respond 

rapidly to market changes, focusing 

limited regulatory resources on changes 

most likely to harm the environment. 

The DC Circuit upheld the ten-year look 

back period, stating, ‘‘* * * we 

conclude that petitioner’s challenges to 

the ten-year look back period fail to 

overcome the presumption of validity 

afforded to EPA regulations under the 

[Clean Air Act (CAA or Act)].’’ New 

York v. EPA, 413 F.3d at 22. The court 

found that EPA’s decision regarding this 

provision was supported with ‘‘detailed 

and reasoned’’ analysis based on EPA’s 

own experience and expertise. New 

York v. EPA, 413 F.3d at 24. 

c. Other than the change that applies 

the ten-year look back period to all 

sources, EPA’s policy of determining 

‘‘actual’’ emissions from two years of 

operating data has not changed. EPA’s 

policy is to have all of the appropriate 

operating data that can prove what a 

facility’s emissions were during that 

particular time period to identify the 

‘‘actual’’ emissions. 

d. A source’s ability to use the full 

ten-year look back period will depend 

upon the availability of relevant data for 

the consecutive 24-month period that a 

source chooses. The data must 

adequately describe the operation and 

associated pollution levels for the 

emissions units being changed. In the 

event that a source does not have the 

data necessary to determine the unit’s 

actual emission factors, utilization rate, 

and other relevant information needed 

to accurately calculate its average 

annual emissions rate during that period 

of time, the source must chose another 

consecutive 24-month period within the 

ten-year look back period for which it 

has adequate data. ‘‘Non-compliant 

emissions’’ are not allowed to be 

considered as part of the baseline actual 

emissions. This is to be determined by 

the permitting authority after reviewing 

adequate files and working with the 

source to determine the true baseline 

actual emissions based on the available 

data and considering all applicable 

regulations and emission limitations. 

e. EPA received comments both in 

favor of and in opposition to making the 

demand growth exclusion available to 

all source categories. EPA decided to 

extend the demand growth exclusion 

because it captures periods of time 

where increased operations respond to 

independent factors, such as systemwide demand growth, which would 

have occurred and affected the unit’s 

operations even in the absence of a 

physical or operational change. The tenyear look back period allows a facility 

to identify a consecutive 24-month time 

frame when the facility was operating at 

its true capacity, and calculate the 

emissions that resulted during that 

period. Instead of duplication, the 

provisions serve distinct purposes. In 

cases where the source experiences full 

capacity utilization, the source will not 

have a basis for attributing part of its 

post-change emissions increase to 

market demand. However, if the source 

still has the ability to increase 

production to meet projected market 

demand without making a physical or 

operational change, the source may 

consider product demand growth. 

f. EPA has taken the position that 

replacement units may be considered to 

be modified units, since the 

replacement unit is replacing a similar 

emissions unit with a record of 

historical operational data. Since the 

replacement unit is very similar to the 

unit that is being replaced, a source 

replacing a unit should be able to 

adequately project and track emissions 

for the replacement unit based on the 

operating history of the replaced unit. 

Therefore, the projection of future actual 

emissions can be sufficiently reliable 

and an up-front emissions cap based on 

Potential to Emit (PTE) is unnecessary. 

See revised definition of ‘‘emissions 

unit,’’ 68 FR 63021 (November 7, 2003), 

clarifying that a replacement unit is 

considered an existing emissions unit 

and, therefore, is eligible for the actualto-projected-actual test for major NSR 

applicability determinations. 

g. In New York v. EPA, 413 F.3d at 

36–38, the DC Circuit held that the 

environmental petitioners had failed to 

demonstrate that PALs are based on an 

impermissible statutory interpretation 

or are otherwise arbitrary and 

capricious. As part of an Environmental 

Impact Analysis, EPA examined six 

pilot projects that implemented flexible 

permits similar to PALs. The 

participants in these pilot projects 

reduced their emissions by 27% to 83% 

below their PAL levels, and, based on 

these results, EPA concluded that PALs 

encourage sources to reduce their 

emissions voluntarily in order to ‘‘create 

enough headroom for future 

expansions’’ during the PAL term. See 

New York v. EPA, 413 F.3d at 37. 


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h. In New York v. EPA, the DC Circuit 

addressed the environmental 

petitioners’ comment that a ten-year 

look back period allows facilities to set 

their PALs high enough to accommodate 

future increases without any initial 

decreases. It examined EPA’s 

conclusion that the ten-year look back 

period affects only a small percentage of 

sources, and that most sources would 

set their PALs equal to recent baseline 

actual emissions, thereby reducing 

emissions by 10% to 33% below their 

PAL levels. The court found that state 

intervenors’ experience confirmed 

EPA’s conclusions. See New York v. 

EPA, 413 F.3d at 38. 

i. PALs are designed to cap a facility’s 

emissions for a criteria pollutant, and 

thus allow facilities to operate within a 

cap without triggering NSR. Additional 

necessary recordkeeping, monitoring, 

and reporting are required for facilities 

to obtain a PAL, and compliance must 

be demonstrated through the additional 

monitoring activities required. The 

commenter asserts that PALs replace 

operational limitations that are never 

restored after a PAL limit expires. We 

disagree. Once a PAL expires, the 

facility loses the ability to operate 

particular emission units unrestricted 

within the facility-wide cap. Sources 

that have existing permits with 

limitations that are subject to state or 

Federal requirements such as Best 

Available Control Technology (BACT), 

Reasonably Available Control 

Technology (RACT), and New Source 

Performance Standards (NSPS), and 

they must still comply with those 

particular requirements throughout the 

use of the PAL, as well as after the 

expiration of a PAL. The reviewing 

authority maintains the discretion to 

determine how to distribute any 

remaining allowable emissions after a 

PAL’s expiration. This may require a 

source to take emission limits even 

more stringent than the original 

emission/operating limits that originally 

applied to an emission unit, or require 

that unit to undergo a PSD/NANSR 

analysis. 

The commenter points to a 2003 

WDNR prepared analysis, which they 

describe as concluding that specific 

emissions increases would result if the 

elements of NSR Reform were approved 

into Wisconsin’s SIP. Unfortunately, the 

commenter did not include the 2003 

analysis with the comments. The 

analysis that the commenter attached to 

the comments is a presentation file that 

does not contain an explanation 

describing how WDNR arrived at the 

increases that the commenter references 

in the comments. 

EPA has made several attempts to 

obtain any existing supporting 

documentation for the analysis the 

commenter describes. WDNR has not 

been able to provide us with any 

documentation in support of the 2003 

conclusions to which the commenter 

refers. However, as a result of our efforts 

to obtain this documentation, we did 

obtain from WDNR a document entitled 

‘‘Report to Legislature,’’ (hand-dated 

March 10, 2006, and received by EPA on 

October 7, 2008). This 2006 report 

contains, among other things, a 

description of WDNR’s 2003 position 

regarding the analysis. In the report, 

WDNR states that its 2003 conclusion 

was that the NSR reform rules would 

lead to emissions increases because 

fewer projects would be required to 

undergo major source NSR, but that this 

conclusion was flawed because WDNR 

did not examine other changes at a 

facility that would reduce allowable 

emissions. Further, the 2006 report 

acknowledges that the State of Michigan 

has been implementing the elements of 

the Federal NSR Reform Rule since 

March 3, 2003, and that Michigan has 

not seen a decrease in PSD permit 

applications. According to the 2006 

report, Michigan and Wisconsin have 

issued a similar number of PSD permits 

annually and have a comparable 

number of sources subject to the major 

source NSR program. Because WDNR 

has, itself, disavowed its own former 

predictions, and EPA never received 

supporting documentation for the 

predictions, EPA does not find the 

comments based on WDNR’s 2003 

analysis to be persuasive. 

Finally, any analysis done in 2003 

would have been done prior to New 

York v. EPA, the 2005 DC Circuit 

decision that vacated the Clean Unit and 

Pollution Control Projects provisions of 

the rule. Such analysis would be based 

on the NSR Reform Rule prior to the 

changes made as a result of the decision, 

and so the analysis could not have 

considered the rules that are in effect 

today. 

The commenter also points to a report 

entitled, ‘‘Reform or Rollback? How 

EPA’s Changes to New Source Review 

Affect Air Pollution in 12 States.’’ The 

report was prepared by the 

Environmental Integrity Project (EIP) 

and the Council of State Governments/ 

Eastern Regional Conference. The draft 

report claims that the change to a ‘‘twoin-ten’’ baseline could allow emissions 

from 1,273 major sources to increase 

emissions in 12 states. However, EPA 

disagrees that the EIP report supports 

this conclusion. EPA has found the 

analysis to be overly simplistic and 

erroneous in its interpretation of NSR. 

These failures undermine the 

plausibility of the report’s conclusions, 

including its emissions estimates. EPA 

notes, in particular, the following 

problems with the report: 

• The approach EIP used looks at 

plant-wide emissions inventories at 

facilities where emissions have been 

lower in the recent two years than in the 

past. The plant-wide inventory 

approach completely avoids 

consideration of why these emissions 

went down. 

• The report incorrectly used plantwide emissions inventory changes as a 

crude estimate of emissions increases 

allowed under the rule. 

• The EIP analysis did not consider 

the fact that major source NSR is only 

triggered when a physical change or 

change in the method of operation of a 

source results in a significant net 

emissions increase. 

• The EIP analysis ignored netting. 

Even if a project results in a significant 

increase, it does not trigger major source 

NSR if there are decreases during the 

contemporaneous period that offset the 

increases during that period (including 

the project increase). 

• The EIP analysis purported to 

measure the ‘‘potential’’ for increases 

under the rule revisions. 

Notwithstanding all the other flaws of 

the analysis, EIP made no assessment of 

whether this ‘‘potential’’ will actually be 

realized. 

Industry has complained that it is 

often expected to surrender capacity 

under the current approach, because it 

is not being utilized in the two-year 

period immediately preceding the 

change. The purpose of the new 

baseline provision is to enable sources 

with an existing unit undergoing 

modification to select as a baseline a 

level of operation that more accurately 

represents that unit’s actual operating 

history. EPA has determined that it is 

reasonable for a source to determine its 

baseline emissions in this manner, so 

long as it is done in compliance with 

the applicable regulations. First, a 

source must have adequate information 

to calculate an average annual emissions 

rate, in tons per year, for the specific 24- 

month period selected to represent the 

unit’s representative operation. Second, 

a source will be required to make 

downward adjustments in the baseline 

emissions calculations to account for 

any enforceable emissions factors and 

operating restrictions that have been 

imposed since the representative 

baseline period and are more stringent 

than the original limits. This adjustment 

ensures that the source cannot take 

credit for an emissions level that is no 

longer allowed for the unit if it were 


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76564 Federal Register / Vol. 73, No. 243 / Wednesday, December 17, 2008 / Rules and Regulations 

1The full reports, ‘‘Evaluation of Implementation 

Experiences with Innovative Air Permits,’’ is 

included in the Supplemental Analysis as 

Appendix A. 

2Emissions based on 2002 National Emission 

Inventory Database. 

operating at its representative level 

today. Third, the new rule for 

determining baseline emissions does not 

affect new sources and new units at 

existing sources, nor does it affect 

electric utility steam generating units, 

for which the five-year look back period 

is still required. There will be no change 

in baseline for sources with recent high 

levels of emissions or consistent 

emissions levels over ten-year periods. 

Finally, under the existing regulations, 

states have always had the flexibility to 

define a different contemporaneous 

period under SIP-approved NSR 

programs. The new rules will help 

simplify the process of determining the 

appropriate baseline period, and 

eliminate the delays associated with the 

previous approach. 

Section 110(l) 

The commenter contends that the 

requested rule revisions would relax the 

existing safeguards in the current NSR 

rules, and thereby violate section 110(l) 

of the CAA. Section 110(l) states that 

‘‘[t]he Administrator shall not approve a 

revision of a plan if the revision would 

interfere with any applicable 

requirement concerning attainment and 

reasonable further progress * * * or any 

other applicable requirement of this 

chapter.’’ 42 U.S.C. 7410(l). 

In ‘‘Approval and Promulgation of 

Implementation Plans; New Source 

Review; State of Nevada, Clark County 

Department of Air Quality and 

Environmental Management,’’ 69 FR 

54006 (Sept. 7, 2004), the EPA stated 

that section 110(l) does not preclude SIP 

relaxations. The Agency stated that 

section 110(l) only requires that the 

‘‘relaxations not interfere with specified 

requirements of the Act including 

requirements for attainment and 

reasonable further progress,’’ and that, 

therefore, a state can relax its SIP 

provisions if it is able to show that it can 

‘‘attain or maintain the [National 

Ambient Air Quality Standards 

(NAAQS)] and meet any applicable 

reasonable further progress goals or 

other specific requirements.’’ 69 FR 

54011–54012. 

The Wisconsin-requested NSR 

revisions track the Federal NSR Reform 

Rule, and EPA has already determined 

that the implementation of the Federal 

NSR Reform Rule will be 

environmentally beneficial. See 68 FR 

44620 (July 30, 2003) and 68 FR 63021. 

EPA’s Supplemental Analysis for the 

Federal NSR Reform Rule estimated that 

there are likely to be reductions in 

emissions of volatile organic 

compounds (VOC) due to the use of 

PALs. A quantitative methodology was 

applied in the Supplemental Analysis to 

three industrial categories, concluding 

that 3,400 to 17,000 tons of VOC 

emission reduction per year was likely 

nationwide in just these categories. The 

three industrial categories selected were 

Automobile Manufacturing (SIC 3711), 

Pharmaceutical Manufacturing (SIC 

2834), and Semiconductor 

Manufacturing (SIC 3674). These were 

chosen based on the Flexible Permit 

Pilot Evaluation Report.1 The report 

concluded that facilities in these source 

categories were likely to adopt a PAL 

because of frequent operational, timesensitive changes, and because of 

opportunities for economical air 

pollution control measures. The 

Supplemental Analysis determined that 

50% to 75% of the facilities under these 

categories would seek a PAL and each 

facility would reduce its emissions by 

10% to 33%. 

We have found seven facilities that 

fall under these categories within 

Wisconsin. Six are automobile 

manufacturing facilities and one is a 

pharmaceutical manufacturing facility. 

These facilities may take advantage of 

the PAL option under the Federal NSR 

Reform Rule. The following tables 

evaluate the potential effects of PALs in 

Wisconsin from these sources.2

Facility name VOC (tons per 

year (TPY)) 2

Oshkosh Truck Corp—West Plant .................................................................................................................................................. 123 .8 

Oshkosh Truck Corp—Main Plant ................................................................................................................................................... 78 .97 

FWD Corporation ............................................................................................................................................................................. 16 .28 

Western Products ............................................................................................................................................................................ 2 .33 

Scientific Protein Labs ..................................................................................................................................................................... 75 .74 

GM—NAO Janesville—Truck Platform ............................................................................................................................................ 1103 .56 

Oshkosh Truck Corp—South Plant ................................................................................................................................................. 0 .50 

If 75% of the facilities above take a PAL 

10% VOC Reduction ....... 105.1 TPY of 

VOC. 

33% VOC Reduction ....... 346.8 TPY of 

VOC. 

If 50% of sources take a PAL 

10% VOC Reduction ....... 70.1 TPY of 

VOC. 

33% VOC Reduction ....... 231.2 TPY of 

VOC. 

10% VOC reduction at 

largest single source.

110.3 TPY of 

VOC. 

33% VOC reduction at 

largest single source.

364.2 TPY of 

VOC. 

Using the same methodology used in 

the Supplemental Analysis to assess the 

emissions benefits of Wisconsin’s NSR 

reform revisions in Wisconsin as EPA 

used to assess the benefits nationally, 

we conclude that the PAL option would 

result in a net reduction of between 70.1 

and 364.2 tons of VOC per year. 

EPA’s Supplemental Analysis for the 

Federal NSR Reform Rule mentions that, 

since PALs are voluntary, it is extremely 

difficult to model how many and which 

particular sources will take PALs. It is 

assumed that the source categories more 

likely to apply for a PAL are those 

sources that are making frequent 

operational changes. 

In Wisconsin, facilities, like the paper 

mills, frequently apply for PSD permits 

in order to modify their mills, which 

result in relatively large increases in 

emissions. An analysis of the National 

Emissions Inventory found that 

Wisconsin has about 73 major sources 

that belong to SIC group 26, paper and 

allied products. These sources emit 

about 8,358 tons of VOC per year. Even 

if a conservative 10% of these sources 

were to take a PAL for a conservative 

decrease in emissions between 10% and 

33%, that would result in a total 

decrease in emissions between about 

83.5 tons to 275.8 tons of VOC per year. 

It is more difficult to assess the 

environmental impacts of the actual-toprojected-actual test and the ‘‘two-inten’’ baseline provisions. The 

Supplemental Analysis determined that 

there is a slight national environmental 

benefit brought about by these NSR 

reform provisions. Additionally, in 

Wisconsin, sources undergoing 

construction, which are not subject to 

the best available control technology or 


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lowest achievable emission reduction 

NSR requirements, will need to assure 

WDNR that any increases will not cause 

or exacerbate an air quality increment or 

air quality standard. 

Overall, we expect changes in air 

quality as a result of implementing 

PALs, the actual-to-projected-actual test 

and the ‘‘two-in-ten’’ baseline 

provisions in Wisconsin to provide 

somewhere between a neutral and 

modest contribution to reasonable 

further progress. Accordingly, EPA 

determines that these changes will not 

interfere with any applicable 

requirement concerning attainment and 

reasonable further progress or any other 

applicable requirement of the CAA. 

Section 193 

The commenter contends that 

WDNR’s NSR Reform revision does not 

‘‘demonstrate[] that the NAAQS/PSD 

Increment/RFP [reasonable further 

progress] demonstration/visibility will 

be protected if the revision is approved 

and implemented,’’ and that WDNR did 

not ‘‘quantify the changes in SIPallowable emissions and estimate or 

quantify the changes in actual emissions 

from affected sources.’’ This failure to 

demonstrate protection of the NAAQS, 

the commenter argues, constitutes 

backsliding, in violation of section 193 

of the CAA. 

As the commenter points out, section 

193 of the CAA provides in part that 

‘‘No control requirement in effect * * * 

before November 15, 1990, in any area 

which is a non-attainment area for any 

air pollutant may be modified after 

November 15, 1990, in any manner 

unless the modification insures 

equivalent or greater emission 

reductions of such air pollutant.’’ 42 

U.S.C. 7515. 

Assuming that section 193 applies to 

NSR, section 193 does not require 

additional emission reductions before 

this SIP revision is approved. Wisconsin 

did not have a major source NANSR 

program consistent with the 

requirements of the CAA. Although the 

program that was in effect as of 

November 15, 1990, included a 

preconstruction permitting program, 

that program did not require any offsets 

for any sources. In the proposed rules, 

major sources are subject to permitting 

requirements consistent with CAA 

requirements. 

Thus, assuming that section 193 

applies in some fashion to the 

permitting program in the SIP, as of 

November 15, 1990, as it applied to 

major sources, that program did not 

require any ‘‘emission reductions’’ from 

major sources because it did not require 

offsets for any sources. Absent offsets, a 

source subject to the permitting program 

would not be required to reduce 

emissions. It follows that if there were 

no emission reductions generated by the 

1990 permitting program, then the 

section 193 requirement to provide 

‘‘equivalent or greater emission 

reductions’’ of any air pollutant as part 

of this SIP revision would be satisfied 

with no additional reductions. 

Furthermore, for the reasons discussed 

above with respect to section 110(l), 

EPA has found that the net effect of 

these changes will be neutral to 

environmentally beneficial. 

Comment II: The Proposed 

Modifications Violate the AntiBacksliding Provisions of Section 

172(e). 

Response: As discussed above, EPA 

has concluded that the NSR Reform 

Rule is not a ‘‘relaxation’’ or weakening 

of the existing NSR rules. EPA has 

assessed the impact of NSR Reform on 

the State of Wisconsin and has 

concluded that approving these 

revisions into the Wisconsin SIP will 

result in somewhere between a neutral 

effect on the environment and a modest 

environmental benefit. Thus, approving 

the NSR Reform Rule into the 

Wisconsin SIP will not result in controls 

that are ‘‘less stringent’’ than the 

previous controls. In addition, the 

changes to the existing NSR rules are 

not being undertaken in the context of 

a NAAQS relaxation. Thus, section 

172(e) does not apply on its face. Nor 

are these changes undertaken in the 

context of strengthening a NAAQS. 

Therefore, the decision of the DC Circuit 

in South Coast Air Quality Management 

District v. Environmental Protection 

Agency, 472 F.3d 882 (D.C. Cir. 2006), 

does not apply in this context. 

Comment III: The Proposed 

Modifications Cannot Be Adopted 

Unless and Until EPA Consults with the 

Fish and Wildlife Service Pursuant to 

the Endangered Species Act (ESA). 

Response: Under relevant CAA 

provisions, states are entitled to 

administer their own approved NSR 

programs, and EPA is required to 

approve a state’s program or revisions to 

its program that satisfy applicable 

requirements of the CAA. The CAA SIP 

approval authority does not provide the 

Agency with the discretion to refrain 

from approving Wisconsin’s SIP 

revisions if the revisions to its NSR 

program meet all applicable CAA 

requirements. Accordingly, and as 

confirmed by recent Supreme Court 

precedent, the ESA requirements cited 

in the comments do not apply to EPA’s 

decision to approve revisions to 

Wisconsin’s NSR program into the SIP. 

See 50 CFR 402.03; National Ass’n of 

Home Builders v. Defenders of Wildlife, 

127 S. Ct. 2518 (2007) (Defenders of 

Wildlife). 

Section 7(a)(2) of the ESA generally 

requires Federal agencies to consult 

with the relevant Federal wildlife 

agencies to ensure that actions they 

authorize, fund, or carry out are not 

likely to jeopardize the continued 

existence of Federally-listed endangered 

or threatened species, or result in the 

destruction or adverse modification of 

designated critical habitat of such 

species. 16 U.S.C. 1536(a)(2). In 

accordance with relevant ESA 

implementing regulations, this 

requirement applies only to actions ‘‘in 

which there is discretionary Federal 

involvement or control.’’ 50 CFR 402.03. 

In the Defenders of Wildlife case, the 

Supreme Court examined these 

provisions in the context of EPA’s 

decision to approve a state permitting 

program under the Clean Water Act 

(CWA). In that case, the Court held that 

when a Federal agency is required by 

statute to undertake a particular action 

once certain specified triggering events 

have occurred, there is no relevant 

agency discretion, and thus the 

requirements of ESA section 7(a)(2) do 

not apply. Defenders of Wildlife, 127 

S.Ct. at 2536. 

With regard to EPA’s transfer of CWA 

permitting authority to a state, the Court 

found that the relevant CWA provision 

mandated that EPA ‘‘shall approve’’ a 

state permitting program if a list of CWA 

statutory criteria is met. Therefore, EPA 

lacked the discretion to deny a transfer 

application that satisfied those criteria. 

Id. at 2531–32. The Court also found 

that the relevant CWA program approval 

criteria did not include consideration of 

endangered or threatened species, and 

stated that ‘‘[n]othing in the text of [the 

relevant CWA provision] authorizes 

EPA to consider the protection of 

threatened or endangered species as an 

end in itself when evaluating [an] 

application’’ to transfer a permitting 

program to a state. Id. at 2537. 

Accordingly, the Court held that the 

CWA required EPA to approve the 

state’s permitting program if the 

statutory criteria were met; those criteria 

did not include the consideration of 

ESA-protected species; and thus, 

consistent with 50 CFR 402.03, the nondiscretionary action to transfer CWA 

permitting authority to the state did not 

trigger relevant ESA section 7 

requirements. 

Similar to the CWA program approval 

provision at issue in Defenders of 

Wildlife, section 110(k)(3) of the CAA 

mandates that EPA ‘‘shall approve’’ a 

SIP submittal that meets applicable 

CAA requirements. 42 U.S.C. 7410(k)(3). 


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The CAA provides a list of SIP submittal 

criteria in section 110. See 42 U.S.C. 

7410(a)(2). 

Section 110(l), governing SIP 

revisions, states that each revision 

‘‘shall be adopted’’ after reasonable 

public notice and public hearing, as 

long as the revision does not interfere 

with any applicable requirement 

concerning attainment and reasonable 

further progress or any other applicable 

requirement of the CAA. 

As was the case with the CWA 

requirements in Defenders of Wildlife, 

the SIP requirements contained in 

section 110 of the CAA do not include 

protection of listed species. Further, 

Title I, Parts C and D, of the CAA do not 

explicitly state that consideration of the 

impacts on listed species is a required 

factor in SIP approval decisions. EPA 

has interpreted sections 169(3) and 

165(e)(3)(B) of the CAA as providing 

EPA with the relevant discretion to 

carry out ESA section 7(a)(2) obligations 

during its review of individual 

applications for Federally issued PSD 

permits under section 165. See In re 

Indeck-Elwood, LLC, PSD appeal No. 

03–04 (EAB Sept. 27, 2006), slip op. at 

108 (holding EPA has discretion to 

consider impacts on listed species in 

BACT and soils and vegetation 

analyses). However, this discretion in 

PSD permitting decisions does not 

provide EPA similar discretion in its SIP 

approval decisions under section 110. 

In issuing individual PSD permits, 

EPA is required to complete an 

environmental impacts analysis in the 

BACT determination of CAA section 

169(3) and an additional impacts 

analysis, including impacts on soils and 

vegetation, under section 165(e)(3)(B) of 

the CAA. In carrying out these analyses, 

EPA has interpreted these provisions as 

affording the Agency discretion to 

determine whether listed species are 

impacted by individual Federal PSD 

permitting decisions. In contrast, EPA’s 

action on state SIP submittals is 

governed by section 110 of the CAA, 

which unequivocally directs EPA to 

approve state plans meeting applicable 

CAA requirements. 

Section 110 does not provide for 

similar impact analyses in reviewing 

SIP submittals. An ESA obligation 

triggered by one provision of the statuteconsideration of ESA in individual 

Federal PSD permitting decisions 

cannot be bootstrapped to raise that 

obligation in another provision-approval 

of the revision to a SIP that does not 

provide EPA with similar discretion. 

See, generally, Defenders of Wildlife 

(finding that while EPA undertakes ESA 

consultation when issuing individual 

Federal National Pollutant Discharge 

Environmental System (NPDES) 

permits, it was not required to do so in 

approving state NPDES permitting 

programs). 

Applying the reasoning of Defenders 

of Wildlife, the SIP approval criteria 

contained in the CAA do not provide 

EPA with the discretionary authority to 

consider whether approval of SIP 

revisions may affect any listed species. 

EPA has determined that WDNR has 

submitted a SIP revision to incorporate 

the NSR Reform Rule that satisfies all of 

the applicable SIP requirements 

contained in section 110 of the CAA. 

Thus, given the Supreme Court 

precedent and applicable regulations 

(see 50 CFR 402.03), EPA is without 

discretion to disapprove or 

conditionally approve Wisconsin’s SIP 

revision request based on concerns for 

listed species, and the ESA 

requirements cited by the commenter 

are thus inapplicable to this approval 

action. 

Comment IV: The Proposed Rules do 

not Reference 40 CFR 52.21 in Order to 

Encompass Permits Issued by EPA and/ 

or WDNR Under a Delegated Program. 

Response: EPA has considered the 

comment regarding the differences in 

citations used with respect to the fuel 

use prohibition that is part of the 

definition of a major modification. This 

provision was part of Wisconsin’s SIP 

prior to the requested change and is 

unaffected by Wisconsin’s requested 

revisions. It is, therefore, not before EPA 

for approval. Moreover, this issue was 

never brought to WDNR’s attention 

during the public comment period 

during which WDNR sought approval 

by the Wisconsin Natural Resources 

Board. Nevertheless, EPA has 

considered this comment and agrees 

with the commenter that certain permits 

that have been issued to sources within 

Wisconsin, to the extent that they exist, 

may not be covered by the language in 

NR 405.02(21)(b)(5) and NR 

408.02(20)(e)(5), which refers to permits 

that have established fuel prohibiting 

conditions. Wisconsin’s PSD program 

was approved into its SIP on May 27, 

1999. The rules cited above failed to 

incorporate language that would include 

sources with construction permits 

issued prior to that approval, either 

directly by EPA or by WDNR under a 

delegated agreement in accordance with 

40 CFR 52.21. 

We have been in contact with WDNR 

on this matter, and plan to work with 

WDNR to revise the language as 

appropriate. However, this amendment 

is not required for EPA’s approval of 

Wisconsin’s requested revisions, which 

did not include the omission of 

language referencing 40 CFR 52.21 and 

40 CFR 51.166. 

With respect to the commenter’s 

contention that ‘‘WDNR has sometimes 

taken the position that the Mandatory 

Operating Permits (MOPs) are not 

federally enforceable,’’ it is EPA’s 

understanding that WDNR does not 

consider its MOP program to be 

federally enforceable. Although WDNR 

submitted the MOP program to EPA as 

a SIP revision on April 22, 1985, by 

letter dated June 20, 1990, WDNR 

withdrew that request for approval, 

prior to EPA approving the program. 

V. What action is EPA taking? 

EPA is approving revisions to the PSD 

and NANSR construction permit 

programs for the State of Wisconsin 

which Wisconsin submitted to EPA on 

May 25, 2006. These revisions meet the 

minimum program requirements of the 

December 31, 2002, EPA NSR Reform 

rulemaking, consistent with subsequent 

changes to that rule, as set forth in New 

York v. EPA, and the resulting 

December 21, 2007 rule concerning 

recordkeeping and reporting standards. 

VI. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely approves state law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• 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); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 


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• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

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 action 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 CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by February 17, 2009. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action 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 8, 2008. 

Lynn Buhl, 

Regional Administrator, Region 5. 

■ 40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart YY—Wisconsin 

■ 2. Section 52.2570 is amended by 

adding paragraph (c)(119) to read as 

follows: 

§ 52.2570 Identification of plan. 

* * * * * 

(c) * * * 

(119) On May 25, 2006, Wisconsin 

submitted for EPA approval into the 

Wisconsin SIP a revision relating to 

changes to chs. NR 405 and 408 for 

incorporation of Federal changes to the 

air permitting program. The rule 

revision being approved in this action 

has been created to approve rule AM– 

06–04, the NSR Reform provisions that 

were not vacated by the DC Circuit 

Court in New York v. EPA, 413 F.3d 3 

(DC Cir. 2005). The rule revision also 

repeals NR 405.02(1)(d), (24m), (27)(a)8., 

17 and 18 and 408.02(27). EPA has 

determined that this revision is 

approvable under the Clean Air Act. 

(i) Incorporation by reference. The 

following sections of the Wisconsin 

Administrative Code are incorporated 

by reference: 

(A) NR 405.01 Applicability; purpose. 

NR 405.01(1) and (2), as published in 

the Wisconsin Administrative Register, 

June 30, 2007, No. 618, effective July 1, 

2007. 

(B) NR 405.02 Definitions. NR 

405.02(1), (2m), (8), (11), (11c), (11e), 

(11j), (12), (20m), (21), (24), (24j), (25b), 

(25d), (25e), (25f), (25i), and (27m) as 

published in the Wisconsin 

Administrative Register, June 30, 2007, 

No. 618, effective July 1, 2007. 

(C) NR 405.025 Methods for 

calculation of increases in actual 

emissions, as published in the 

Wisconsin Administrative Register, June 

30, 2007, No. 618, effective July 1, 2007. 

(D) NR 405.16 Source obligation. NR 

405.16(3) and (4) as published in the 

Wisconsin Administrative Register, June 

30, 2007, No. 618, effective July 1, 2007. 

(E) NR 405.18 Plant-wide 

applicability limitations (PALs), as 

published in the Wisconsin 

Administrative Register, June 30, 2007, 

No. 618, effective July 1, 2007. 

(F) NR 408.02 Definitions. NR 

408.02(1), (2m), (4), (5), (11), (11e), 

(11m), (11s), (13), (13m), (20), 

(21)(a)1.(intro), (23), (24m), (25s), (28e), 

(28j), (28m), (28s), (29m), and (32m) as 

published in the Wisconsin 

Administrative Register, June 30, 2007, 

No. 618, effective July 1, 2007. 

(G) NR 408.025 Methods for 

calculation of increases in actual 

emissions, as published in the 

Wisconsin Administrative Register, June 

30, 2007, No. 618, effective July 1, 2007. 

(H) NR 408.06 Emissions offsets. NR 

408.06(10), as published in the 

Wisconsin Administrative Register, June 

30, 2007, No. 618, effective July 1, 2007. 

(I) NR 408.10 Source obligation. NR 

408.10(5) and (6), as published in the 

Wisconsin Administrative Register, June 

30, 2007, No. 618, effective July 1, 2007. 

(J) NR 408.11 Plant-wide applicability 

limitations (PALs), as published in the 

Wisconsin Administrative Register, June 

30, 2007, No. 618, effective July 1, 2007. 

(ii) Additional material. 

(A) NR 484.04 Code of federal 

regulations appendices. NR 484.04(21), 

and (27m) as published in the 

Wisconsin Administrative Register, June 

30, 2007, No. 618, effective July 1, 2007. 

* * * * * 

[FR Doc. E8–29820 Filed 12–16–08; 8:45 am] 

BILLING CODE 6560–50–P 


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