[Federal Register Volume 59, Number 21 (Tuesday, February 1, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-2168]


[[Page Unknown]]

[Federal Register: February 1, 1994]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[WI31-02-6033; AMS-FRL-4830-1]

 

Approval and Promulgation of a Commitment To Adopt a Rule for 
Reasonably Available Control Technology for Oxides of Nitrogen for 
Wisconsin

AGENCY: United States Environmental Protection Agency (USEPA).

ACTION: Final rule.

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SUMMARY: The USEPA is conditionally approving a revision to the 
Wisconsin State Implementation Plan (SIP) for ozone. This revision was 
submitted by the State to satisfy Clean Air Act (Act) requirements for 
adoption of rules for application of reasonably available control 
technology (RACT) for oxides of nitrogen (NOx) in the Milwaukee, 
Kewaunee, Manitowoc, and Sheboygan ozone nonattainment areas in 
Wisconsin. The Milwaukee area consists of Kenosha, Milwaukee, Ozaukee, 
Racine, Washington, and Waukesha counties. In this notice, USEPA is 
acting not on the rules themselves, but on a commitment by the State to 
submit NOx RACT rules at a later date.

EFFECTIVE DATE: This action will be effective March 3, 1994.

FOR FURTHER INFORMATION CONTACT: Daniel Meyer, Air Toxics and Radiation 
Branch, Regulation Development Section (AT-18J), United States 
Environmental Protection Agency, Region 5, Chicago, Illinois 60604, 
(312) 886-9401.

SUPPLEMENTARY INFORMATION: 

I. Summary of State Submittal

    The Wisconsin Department of Natural Resources (WDNR) has committed 
to submit NOx RACT rules to USEPA as a revision to its ozone SIP 
within 1 year after USEPA approves the commitment. WDNR has not yet 
submitted the rules because sufficient evidence does not yet exist to 
prove a need for controlling major stationary source NOx emissions 
in the Wisconsin ozone nonattainment areas. WDNR is performing 
photochemical grid modeling to determine whether NOx controls on 
major stationary sources would be beneficial. Modeling results are not 
yet available. WDNR submitted the commitment to USEPA on November 15, 
1992, and submitted additional information to supplement the original 
submittal on January 15, 1993, and March 29, 1993.

II. Analysis of State Submittal

    The criteria for approving a NOx RACT committal is set forth 
in section 110(k)(4) of the Act and in several documents described in 
USEPA's August 4, 1993, notice of proposed rulemaking for approval of 
Wisconsin's NOx RACT committal, 58 FR 41451-41452. The memoranda 
of July 22, 1992, and September 16, 1992, from Deputy Assistant 
Administrator Michael Shapiro to the USEPA Air Division Directors, set 
forth the following acceptability criteria for committal SIPs due 
November 15, 1992: (1) The State must provide notice and public hearing 
on the commitment; (2) the commitment must include the basis for a 
conditional approval; and (3) the commitment must include a State work 
plan detailing any specific measures to be adopted, the steps that will 
be taken to adopt the measures, and the schedule for adoption of those 
measures. The State has satisfied all of these requirements in its 
commitment.
    Two additional guidance documents, the NOx Supplement to the 
General Preamble (57 FR 55620-55629) and the February 2, 1993, 
memorandum entitled ``Questions and Answers on Nitrogen Oxides 
Emissions Policy,'' from G.T. Helms to the Air Branch Chiefs, set forth 
the following criteria for determining the acceptability of a NOx 
RACT committal SIP for conditional approval: (1) The committal must 
describe the reason for the committal instead of a full SIP submittal; 
(2) the committal must document that credible photochemical grid 
modeling is not available or did not consider the effects of NOx 
reductions; (3) the committal must identify the resources to complete 
the photochemical grid modeling; and (4) the committal must include a 
schedule outlining the milestones that have been and will be achieved 
toward completion of the modeling activities and the NOx RACT 
rules. In its schedule, the State must commit to adopt NOx RACT 
rules and to submit the rules to USEPA within 1 year after USEPA 
approval of the committal. The State has complied with all of these 
requirements in its committal. Most importantly, the State has 
demonstrated that photochemical grid modeling is progressing under the 
Lake Michigan Ozone Control Program, and the State has committed to 
submit NOx RACT rules to USEPA within 1 year after USEPA approval 
of the State committal. A detailed analysis of the submittal can be 
found in an April 28, 1993, Region 5 technical support document 
proposing conditional approval of this revision to the Wisconsin SIP 
for ozone. The USEPA proposed to approve the NOx RACT committal in 
an August 4, 1993, Federal Register document. No comments were received 
regarding USEPA's proposed action.

III. Implication of Action

    USEPA conditionally approves of the State's commitment to adopt 
NOx RACT rules for the Milwaukee, Kewaunee, Manitowoc, and 
Sheboygan areas in Wisconsin as a revision to the ozone SIP. If the 
State fails to submit adopted NOx RACT rules 1 year after USEPA 
approval of the commitment, USEPA will propose to disapprove the 
commitment as failing to comply with section 110(k)(4) of the Act. If 
the State fails to adopt legislative authority or meet other applicable 
milestones in the commitment SIP schedule, USEPA may also disapprove 
the commitment as failing to comply with section 110(k)(4), if such 
failure to meet a specific milestone indicates that the State may not 
be able to meet the submission date.
    If, after considering comments on the final rulemaking, USEPA 
issues a final disapproval or if the conditional approval is converted 
to a disapproval, the sanctions clock under section 179(a) will begin. 
The clock will begin at the time USEPA issues the final disapproval or 
at the time USEPA notifies the State by letter that a conditional 
approval has been converted to a disapproval. If the State does not 
submit and USEPA does not approve the rule on which the disapproval was 
based within 18 months of the disapproval, USEPA must impose one of the 
sanctions under section 179(b) highway funding restrictions or the 
offset sanction. In addition, the final disapproval starts the 24 month 
clock for the imposition of a section 110(c) Federal Implementation 
Plan. Finally, under section 110(m), USEPA has discretionary authority 
to impose sanctions at any time after a final disapproval.

IV. Executive Order (EO) 12291

    This action has been classified as a Table 2 action by the Regional 
Administrator under the procedures published in the Federal Register on 
January 19, 1989. 54 FR 2214-2225. On January 6, 1989, 54 FR 2222, the 
Office of Management and Budget (OMB) waived Table 2 and 3 SIP 
revisions from the requirements of section 3 of Executive Order 12291 
for a period of 2 years. USEPA has submitted a request for a permanent 
waiver for Table 2 and 3 SIP revisions. OMB has agreed to continue the 
waiver until such time as it rules on USEPA's request. This request 
continues in effect under Executive Order 12866 which superseded 
Executive Order 12291 on September 30, 1993.

V. Regulatory Flexibility

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., USEPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, USEPA may certify that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small not-for-profit 
enterprises, and government entities with jurisdiction over populations 
of less than 50,000.
    Conditional approvals under sections 110 and 301, subchapter I, 
part D of the Act do not create any new requirements, but simply 
approve requirements that the State is already imposing. Therefore, 
because the Federal SIP approval does not impose any new requirements, 
I certify that it does not have a significant impact on affected small 
entities. Moreover, due to the nature of the Federal-State relationship 
under the Act, preparation of a regulatory flexibility analysis would 
constitute Federal inquiry into the economic reasonableness of State 
action. The Act forbids USEPA to base its actions concerning SIPs on 
such grounds. Union Electric Co. v. U.S.E.P.A., 427 U.S. 246, 256-66 
(1976); 42 U.S.C. 7410(a)(2).
    If USEPA issues a final disapproval or the conditional approval is 
converted to disapproval under section 110(k) of the Act based upon the 
State's failure to meet the commitment, it will not affect any existing 
State requirements applicable to small entities. Federal disapproval of 
the State submittal does not affect its State-enforceability. Moreover, 
USEPA's disapproval of the submittal does not impose a new Federal 
requirement. Therefore, USEPA certifies that this disapproval action 
does not have a significant impact on a substantial number of small 
entities, because it does not remove existing State requirements nor 
does it substitute a new Federal requirement.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements.

    Dated: January 12, 1994.
Valdas V. Adamkus,
Regional Administrator.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401-7671q.

Subpart YY--Wisconsin

    2. Subpart YY is amended by adding Sec. 52.2569 to read as follows:


Sec. 52.2569  Identification of plan--conditional approval.

    (a) Revisions to the plan identified in Sec. 52.2570 were submitted 
on the date specified.
    (1) On November 15, 1992, the Wisconsin Department of Natural 
Resources (WDNR) submitted a commitment to adopt oxides of nitrogen 
(NOx) reasonably available control technology (RACT) rules as a 
proposed revision to the State's ozone State Implementation Plan (SIP). 
After holding a public hearing on the submission, WDNR resubmitted the 
SIP on January 15, 1993. In this submission, the State commits to adopt 
NOx RACT rules within 1 year after United States Environmental 
Protection Agency (USEPA) approval of State's commitment. On March 29, 
1993, WDNR further committed to submit these rules to USEPA as a 
revision to the SIP 1 year after USEPA approval of the State's 
commitment. In this section, USEPA conditionally approves the State's 
revision to the Wisconsin SIP for ozone.
[FR Doc. 94-2168 Filed 1-31-94; 8:45 am]
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