[Federal Register Volume 60, Number 11 (Wednesday, January 18, 1995)]
[Rules and Regulations]
[Pages 3538-3544]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-1085]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[WI33-01-5764a; FRL-5135-2]
Approval and Promulgation of Implementation Plan for Wisconsin
AGENCY: United States Environmental Protection Agency (USEPA).
ACTION: Direct final rule.
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SUMMARY: USEPA approves the State implementation plan (SIP) revisions
submitted by the State of Wisconsin for the purpose of meeting
requirements of the Clean Air Act (ACT) with regard to new source
review in areas that have not attained the national ambient air quality
standards (NAAQS). The implementation plan revisions were submitted by
the State to satisfy certain Federal requirements for an approvable
nonattainment new source review SIP for Wisconsin.
This action also approves Wisconsin's Operating Permits rule as
satisfying the requirements given in the Federal Register of June 28,
1989, for establishing federally enforceable State operating permits
(FESOP). USEPA is approving Wisconsin's operating permits program for
the purpose of creating federally enforceable limitations on the
potential to emit of certain pollutants, including those regulated
under sections 110, 111, and 112 of the Clean Air Act.
DATES: This action will be effective February 17, 1995, unless adverse
or critical comments are received by February 17, 1995. If the
effective date is delayed, timely notice will be published in the
Federal Register.
ADDRESSES: Comments can be mailed to Carlton Nash, Chief, Regulation
Development Section, Air Toxics and Radiation Branch, United States
Environmental Protection Agency, 77 West Jackson Boulevard (AT-18J),
Chicago, Illinois 60604. [[Page 3539]]
Copies of the State's submittal and USEPA's technical support
documents are available for inspection during normal business hours at
the following locations:
United States Environmental Protection Agency, Region 5, Air and
Radiation Division, 77 West Jackson Boulevard (AT-18J), Chicago,
Illinois 60604; and
Wisconsin Department of Natural Resources, 101 South Webster
Street, P.O. Box 7921, Madison, Wisconsin 53707.
A copy of this SIP revision is also available at the following
location:
Office of Air and Radiation, Docket and Information Center (Air
Docket 6102), room M1500, USEPA, 401 M Street, SW., Washington, DC
20460.
FOR FURTHER INFORMATION CONTACT: Constantine Blathras, USEPA (AT-18J),
77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-0671.
SUPPLEMENTARY INFORMATION:
I. Background
The air quality planning requirements for nonattainment new source
review are set out in part D of subchapter I of the ACT. USEPA issued a
``General Preamble'' describing USEPA's preliminary views on how USEPA
intends to review SIPs and SIP revisions submitted under part D,
including those State submittals containing nonattainment area new
source review (NSR) SIP requirements (see 57 FR 13498 (April 16, 1992)
and 57 FR 18070 (April 28, 1992)). Because USEPA is describing its
interpretations here only in broad terms, the reader should refer to
the General Preamble for a more detailed discussion of the
interpretations of part D advanced in this action and the supporting
rationale.
II. The Wisconsin New Source Review Rules
Section 110(k) of the ACT sets out provisions governing USEPA's
review of SIP submittals (see 57 FR 13565-13566).
A. Analysis of State Submission
1. Submittal Information
Wisconsin's initial NSR plan in response to the 1990 Amendments to
the ACT was submitted to USEPA on November 15, 1992 as a proposed
revision to the SIP. This submittal consisted of a set of statutory
changes, and a temporary rule which was in effect for 180 days from
November 15, 1992 and a draft of a permanent rule. The State of
Wisconsin held a public hearing on December 1, 1992 to entertain public
comment on this submittal. On January 15, 1993, Wisconsin submitted
materials related to the public comments it received. On July 28, 1993,
Wisconsin submitted its permanent NSR rule, Natural Resources (NR) 408,
Wisconsin Administrative Code, Nonattainment Area Major Source Permits
superseding the temporary rule previously submitted. On January 14,
1994, Wisconsin submitted changes and revisions to NR 400, Air
Pollution Control Definitions, NR 406, Construction Permits, and NR
490, Procedures for Noncontested Case Public Hearings. USEPA is
approving statutory changes as well as NR 400, 406, 408, and 490. These
are discussed further as follows and in the technical support documents
for this SIP revision.
USEPA reviewed the November 15, 1992 and July 28, 1993 SIP revision
submittals to determine completeness, in accordance with the
completeness criteria set out at 40 CFR part 51, appendix V (1991), as
amended by 57 FR 42216 (August 26, 1991). These submittals were found
to be complete on August 31, 1993, and USEPA forwarded a letter dated
August 31, 1993 to the Wisconsin Department of Natural Resources (WDNR)
Bureau of Air Management Director indicating the completeness of the
submittals and the next steps to be taken in the review process.
2. General Nonattainment NSR Requirements
The statutory requirements for nonattainment new source review SIPs
and permitting are found at sections 172 and 173. A listing of these
provisions and how Wisconsin's rules meet them follows.
a. Provisions to assure that new source growth does not interfere
with reasonable further progress (RFP) for the area and that
calculation of emissions offsets are based on the same emissions
baseline used in the demonstration of RFP. Wisconsin has met this
requirement in NR 408.05 and NR 408.06(f).
b. Provisions according to section 173(c)(1) to allow offsets to be
obtained in another nonattainment area if: the area in which the
offsets are obtained has an equal or higher nonattainment
classification; and emissions from the nonattainment area in which the
offsets are obtained contribute to a NAAQS violation in the area in
which the source would construct. Wisconsin has met this requirement in
NR 408.06(2).
c. Provisions to assure, pursuant to section 173(c)(1), that any
emissions offsets obtained in conjunction with the issuance of a permit
to a new or modified source are in effect and enforceable by the time
the new or modified source is to commence operation. Wisconsin has met
this requirement in NR 408.06(g).
d. Provisions to assure that emissions increases from new or
modified major stationary sources are offset by reductions in actual
emissions as required by section 173(c)(1). Wisconsin has met this
requirement in NR 408.06(3).
e. Provisions, pursuant to section 173(c)(2), to prevent emissions
reductions otherwise required by the ACT from being credited for
purposes of satisfying the part D offset requirements. Wisconsin has
met this requirement in NR 408.06(1)(g) NR 408.06(9).
f. Provisions reflecting changes in growth allowances, pursuant to
sections 172(c)(4), 173(a)(1)(B) and 173(b); specifically, the
elimination of existing growth allowances in any nonattainment area
that received a notice prior or subsequent to the Amendments that the
SIP was substantially inadequate; and the restrictions of growth
allowances to only those portions of nonattainment areas formally
targeted as special zones for economic growth. Wisconsin does not have
any growth allowances.
g. Provisions, pursuant to section 173(a)(5), that, as a
prerequisite to issuing any part D permit, require an analysis of
alternative sites, sizes, production processes, and environmental
control techniques for proposed sources that demonstrates that the
benefits of the proposed source significantly outweigh the
environmental and social costs imposed as a result of its location,
construction, or modification. Wisconsin has met this requirement in NR
408.08(2).
h. Provisions for supplying control technology information from
nonattainment new source review permits to USEPA for inclusion in the
Reasonably Available Control Technology (RACT)/Best Available Control
Technology (BACT)/Lowest Achievable Emission Rate (LAER) clearinghouse,
pursuant to section 173(d). WDNR has met this requirement in NR
408.04(7) and has committed to report determinations to the RACT/BACT/
LAER clearinghouse in the annual WDNR Air Management Program Workplan.
i. Provisions pursuant to section 173(e) that allow any existing or
modified source that tests rocket engines or motors to use alternative
or innovative means to offset emissions increases from firing and
related cleaning, if the four conditions set forth therein are met.
Wisconsin has no such sources or activities in the State.
[[Page 3540]]
j. Provisions, pursuant to section 819, Public Law 101-549 (note to
42 U.S.C. 7511) that effectively exempt activities related to stripper
wells from the new NSR requirements of new Subparts 2, 3, and 4 for
particulate matter (PM), ozone, or carbon monoxide (CO) nonattainment
areas classified as serious or less, and having a population of less
than 350,000. No exclusion is provided for PM, ozone, or CO serious
nonattainment areas having a population of 350,000 or more, or in
severe and extreme ozone nonattainment areas. The general NSR
provisions of sections 172 and 173 of part D still apply. There are no
stripper well activities in Wisconsin.
k. Provisions, pursuant to section 328, to assure that sources
located on the outer continental shelf (OCS) are subject to the same
requirements as would be applicable if the source were located in the
corresponding onshore area. Wisconsin is not located on the OCS.
l. A definition of ``stationary source'' reflecting Congressional
intent, as set forth in section 302(z), that certain internal
combustion engines subject to control under State programs, but
excluding the newly defined category of ``nonroad engines''. Wisconsin
has met this requirement in NR 400.02(96) and section 144.30(23), 91-92
Wisconsin Statutes.
m. Exemptions from nonattainment new source review provisions,
pursuant to section 415(b)(2), for installation, operation, cessation,
or removal of a temporary clean coal technology demonstration project.
Such projects must still comply with any applicable SIP and all other
requirements for the attainment and maintenance of NAAQS. Wisconsin has
met this requirement in NR 408.02(20)(e)(9).
n. Provisions, pursuant to section 173(a)(3), to assure that owners
or operators of each proposed new or modified major stationary source
demonstrate that all other major stationary sources under the same
ownership in the State are in compliance, or on a schedule for
compliance, with the Clean Air Act. Wisconsin has met this requirement
in NR 408.08(1).
3. Ozone Nonattainment NSR Requirements
According to section 172(c)(5), SIPs must require permits for the
construction and operation of new or modified major stationary sources.
The statutory permit requirements for ozone nonattainment areas are
generally contained in revised section 173, and in subpart 2 of part D.
These are the minimum requirements that States must include in an
approvable implementation plan. For all classifications of ozone
nonattainment areas and for ozone transport regions, States must adopt
the appropriate major source thresholds and offset ratios, and must
adopt provisions to ensure that any new or modified major stationary
source of nitrogen oxides (NOX) satisfies the requirements
applicable to any major source of volatile organic compounds (VOC),
unless a special NOX exemption is granted by the Administrator
under the provision of section 182(f). For serious and severe ozone
nonattainment areas, State plans must implement section 182(c)(6) and
may implement sections 182(c) (7) and (8) with regard to modifications.
Wisconsin has established major source thresholds, and offset
ratios, and has included provisions for VOC and NOX major
stationary sources as follows:
------------------------------------------------------------------------
Area Major source
classification threshold Offset ratio NOX provisions
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Marginal......... 100 tons per year 1.1 to 1........ Included.
Moderate......... 100 tons per year 1.15 to 1....... Included.
Serious.......... 50 tons per year. 1.2 to 1........ Included.
Severe........... 25 tons per year. 1.3 to 1........ Included.
Extreme1......... 10 tons per year. 1.5 to 1........ Included.
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1Wisconsin does not have an extreme ozone nonattainment area.
In addition, Wisconsin's plan submittal reflects appropriate
modification provisions under in sections 182(c), (d), and (e), for
serious and severe areas. NR 408.02(2)(c) sets the major modification
threshold level (``de minimis level'') in serious and severe areas at
25 tons per year (tpy) where the creditable emissions increases and
decreases from the proposed modification is aggregated with all other
net emissions increases from the source over a 5 consecutive calendar
year period prior to, and including, the year of modification.
NR 408.03(6) and NR 408.04(6) provide that in serious and severe
areas, major modifications to existing sources that have a potential to
emit of less than 100 tpy shall substitute best available control
technology for lowest achievable emission rate (LAER) and may avoid
major source status by internally offsetting the emissions increase by
a ratio of 1.3 to 1.
NR 408.04(5) provides the major modifications to existing sources
that have a potential to emit of greater than 100 tpy may avoid LAER
requirements by internally offsetting the emissions increase by a ratio
of 1.3 to 1.
4. Carbon Monoxide Nonattainment NSR Requirements
The statutory permit requirements for CO nonattainment areas are
generally contained in section 173, and in subpart 3 of part D. These
are the minimum requirements that States must include in an approvable
implementation plan. States must adopt the appropriate major source
threshold and offset ratio.
Wisconsin has established a major source threshold of 100 tpy in NR
408.02(21)(a) for moderate CO nonattainment areas, a modification
significance level of 100 tpy in NR 408.02(32)(a)1, and an offset ratio
of 1 to 1 in NR 408.06(3).
5. PM Nonattainment NSR Requirements
The statutory permit requirements for PM nonattainment areas are
generally contained in revised section 173, and in subpart 4 of part D.
These are the minimum requirements that States must include in an
approvable implementation plan. States must adopt the appropriate major
source threshold, offset ratio, significance level for modifications,
and provisions for PM precursors (such as SO2, NOX, and VOC).
Wisconsin has established major source thresholds in NR
408.02(21)(a), offset ratios in NR 408.06(3), modification significance
levels in NR 408.02(32)(a)5, and PM precursor provisions in NR
408.02(21)(a & d), NR 408.02(32)(g & h), and NR 408.03(4) as follows:
------------------------------------------------------------------------
Major
Area classification source Offset Significance Precursor
threshold ratio level provisions
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Moderate................. 100 tpy... 1 to 1. 15 tpy...... yes
Serious\2\............... 70 tpy.... 1 to 1. 10 tpy...... yes
------------------------------------------------------------------------
\2\Wisconsin does not have a serious PM nonattainment area.
6. Sulfur Dioxide Nonattainment NSR Requirements
The statutory permit requirements for SO2 nonattainment areas
are generally contained in section 173, and in subpart 5 of part D.
These are the minimum requirements that States must include in an
approvable implementation plan. For SO2 nonattainment areas,
States must adopt the appropriate major source threshold, offset ratio,
and significance level for modifications.
Wisconsin has established a major source threshold of 100 tpy in NR
408.02(21)(a), an offset ratio of 1 to 1 in [[Page 3541]] NR 408.06(3),
and a modification significance level of 40 tpy in NR 408.02(32)(a)3.
7. Lead Nonattainment NSR Requirements
The statutory permit requirements for lead nonattainment areas are
generally contained in section 173, and in Subpart 5 of part D. These
are the minimum requirements that States must include in an approvable
implementation plan. For lead nonattainment areas, States must adopt
the appropriate major source threshold, offset ratio, and significance
level for modifications.
Wisconsin has established a major source threshold of 100 tpy NR in
408.02(21)(a), an offset ratio of 1 to 1 in NR 408.06(3), and a
modification significance level of 0.6 tpy in NR 408.02(32)(a)6.
After consideration of the material submitted by the State of
Wisconsin, USEPA has determined that the Wisconsin New Source Review
rules revision satisfy the requirements for nonattainment new source
review SIPs and permitting.
III. The Wisconsin Operating Permit Program
For many years, Wisconsin has been issuing permits for major new
sources and for major modifications of existing sources. Throughout
this time, Wisconsin has also been issuing permits establishing
limitations on the potential to emit from new sources so as to avoid
major source permitting requirements. This latter type of permitting
has been the subject of various guidance from the USEPA, including the
memoranda entitled ``Guidance on Limiting Potential to Emit in New
Source Permitting'' dated June 13, 1989, ``Limitation of Potential to
Emit with Respect to Title V Applicability Thresholds'' dated September
18, 1992, and ``Approaches to Creating Federally-Enforceable Emissions
Limits'' dated November 3, 1993.
The advent of operating permits pursuant to Title V of the ACT
Amendments of 1990 has created interest in mechanisms for limiting
sources' potential to emit, thereby allowing the sources to avoid being
defined as ``major'' with respect to the Federal operating permits
programs. A key mechanism for such limitations is the use of FESOPs.
USEPA has issued guidance on FESOPs in the Federal Register of June 28,
1989 (54 FR 27274). Since operating permits are issued pursuant to a
program approved by USEPA, these permits will also be enforceable by
citizens pursuant to section 304 of the ACT.
On January 14, 1994, WDNR submitted the regulations, statutory
changes, and administrative framework for the Operation Permits rule,
NR 407, as a revision to its permit SIP. This SIP revision submittal is
needed in order to make conditions in construction and operating
permits federally enforceable and to create synthetic minor sources.
USEPA is approving this program as meeting the five criteria
articulated in the June 28, 1989 Federal Register notice for State
operating permit programs to establish federally enforceable limits on
potential to emit.
First Criterion
``The state operating permit program (i.e., the regulations or
other administrative framework describing how such permits are issued)
is submitted and approved by USEPA into the SIP.''
On January 14, 1994, WDNR submitted the regulations and
administrative framework for the Operation Permits rule, NR 407, as a
revision to its permit SIP. USEPA's approval of this section provides
legal support for the operating permit program and satisfies the first
criterion.
Second Criterion
``The SIP imposes a legal obligation that operating permit holders
adhere to the terms and limitations of such permits (or subsequent
revisions of the permit made in accordance with the approved operating
permit program) and provides that permits which do not conform to the
operating permit program requirements and the requirements of USEPA's
underlying regulations may be deemed not `federally enforceable' by
USEPA.''
NR 407.09(1)(f)1 states that, ``Any noncompliance with the
operation permit constitutes a violation of the statutes and is grounds
for enforcement action; for permit suspension, revocation or revision;
or, if applicable under Sec. 144.3925(6) Wisconsin Statues, for denial
of a permit renewal application.'' This satisfies the initial part of
the second approval criterion in that the operating permit holder is
considered in violation of the code if the holder does not abide by the
permit conditions.
The latter part of the second approval criterion requires that the
SIP have provisions which allow USEPA to deem a permit not ``federally
enforceable'' under certain conditions. NR 400.02(39m) defines
``federally enforceable'' as ``all limitations and conditions which are
enforceable by the Administrator of the U.S. Environmental Protection
Agency, * * * and requirements in operating permits issued pursuant to
NR 407 and title V of the Federal clean air act which are designated as
federally enforceable.'' Under NR 407.09(3), all terms and conditions
in an operation permit, including any provisions designed to limit a
stationary sources potential to emit, are enforceable by the
Administrator under section 113(a) of the ACT. In approving the State
operating permit, USEPA is determining that Wisconsin's program allows
USEPA to deem an operating permit not ``federally enforceable'' for
purposes of limiting potential to emit and to offset creditability.
Such a determination will (1) be done according to appropriate
procedures, and (2) be based upon the permit, permit approval
procedures or permit requirements which do not conform with the
operating permit program requirements and the requirements of USEPA's
underlying regulations. Based on this interpretation of Wisconsin's
program, USEPA finds that the second criterion for approving an
operating permit program has been met by the State.
Third Criterion
``The State operating permit program requires that all emissions,
limitations, controls and other requirements imposed by such permits,
will be at least as stringent as any other applicable limitation or
requirement contained in the SIP or enforceable under the SIP, and that
the program may not issue permits that waive, or make less stringent,
any limitation or requirement contained in or issued pursuant to the
SIP, or that are otherwise `federally enforceable' (e.g., standards
established under sections 111 and 112 of the Act).''
Under NR 407.09(3)(b), the department shall specifically designate
as not federally enforceable under the Act any terms and conditions
included in the permit that are not required under the Act, under the
Act's applicable requirements or under the SIP. This provision requires
that State permits comply with the provisions of the ACT and Federal
regulations adopted pursuant to the ACT. Based on these provisions,
USEPA has determined that the State authority to grant permits is
properly restrained by the terms of the SIP, as required by the third
criterion.
Fourth Criterion
``The limitations, controls, and requirements in the operating
permits are permanent, quantifiable and otherwise enforceable as a
practical matter.''
USEPA has reviewed the Wisconsin operating permit program and is
[[Page 3542]] satisfied that it requires the State to issue permits
which meet the requirements of this provision. While the permits do
expire, the conditions they impose must be complied with during the
entire term of the permit as well as during the transition to a renewal
permit. NR 407.04(2) states that no permittee may continue operation of
a source after the operation permit expires, unless the permittee
submits a timely and complete application for renewal of the permit.
Subsequently, NR 407.09(1)(f)1 requires the permittee to comply with
all conditions of the permit provisions. The operating permit program
provisions meet the fourth criterion for permit program approval.
Fifth Criterion
``The permits are issued subject to public participation.'' This
means that the State agrees, as a part of its program, to provide USEPA
and the public with timely notice of the proposed issuance of such
permits, and to provide USEPA, on a timely basis, with a copy of each
proposed (or draft) and final permit intended to be federally
enforceable.
Wisconsin's rules governing public participation in the air permit
program for major sources in nonattainment areas are found in NR 407.07
and section 144.3925 of the 91-92 Wisconsin Statutes. These rules
provide for public notification prior to permit issuance and an
opportunity for public comment. The pubic comment procedure and
commitments to follow them in issuing operating permits, which were
submitted by the WDNR, are approvable as meeting the fifth criterion.
Wisconsin's operating permit regulation not only applies to
criteria pollutants, but also to other air contaminants. Some of these
are or will be regulated by sections 111 and 112 of the ACT. Thus,
USEPA is also approving under section 112(l) of the ACT Wisconsin's
State operating permits program for the purposes of creating federally
enforceable limitations on the potential to emit Hazardous Air
Pollutants (HAPs) regulated under section 112 of the ACT.
The June 28, 1989 document provided that USEPA would approve a
State operating permit program into a SIP for the purpose of
establishing federally enforceable limits on a source's potential to
emit if the program met five specific requirements. This action,
because it was written prior to the 1990 amendments to section 112,
mainly addressed SIP programs to control criteria pollutants. Federally
enforceable limits on criteria pollutants (i.e., VOCs or PM) may have
the incidental effect of limiting certain HAPs listed pursuant to
section 112(b). This situation would occur when a pollutant classified
as a HAP is also classified as a criteria pollutant.3
\3\The USEPA intends to issue guidance addressing the technical
aspects of how these criteria pollutant limits may be recognized for
purposes of limiting a source's potential to emit of HAP to below
section 112 major source levels.
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USEPA has determined that the five approval criteria for approving
FESOP programs into the SIP, as specified in the June 28, 1989 Federal
Register document and discussed above, are also appropriate for
evaluating and approving the programs under Section 112(l). The June
28, 1989 document did not address HAPs because it was written prior to
the 1990 amendments to section 112 and not because it established
requirements unique to criteria pollutants. Hence, the five criteria
are applicable to FESOP approvals under section 112(l).
In addition to meeting the criteria in the June 28, 1989 document,
a FESOP program must meet the statutory criteria for approval under
section 112(l)(5). section 112(l) allows USEPA to approve a program
only if it (1) contains adequate authority to assure compliance with
any Section 112 standards or requirements, (2) provides for adequate
resources, (3) provides for an expeditious schedule for assuring
compliance with section 112 requirements, and (4) is otherwise likely
to satisfy the objectives of the Act.
USEPA plans to codify the approval criteria for programs limiting
potential to emit HAPs in subpart E of part 63, the regulations
promulgated to implement section 112(l) of the Act. USEPA currently
anticipates that these criteria, as they apply to FESOP programs, will
mirror those set forth in the June 28, 1989 document, with the addition
that the State's authority must extend to HAPs in addition to
pollutants such as VOCs and PM. USEPA currently anticipates that FESOP
programs that are approved pursuant to section 112(l) prior to the
subpart E revisions will have had to meet these criteria, and hence,
will not be subject to any further approval action.
Regarding the statutory criteria under section 112(l), USEPA
believes that Wisconsin's FESOP program contains authority to assure
compliance with section 112 requirements because the third criterion of
the June 28, 1989 document is met, since the program does not provide
for waiving any section 112 requirement. Sources would still be
required to meet section 112 requirements applicable to nonmajor
sources. Regarding adequate resources, Wisconsin has included in its
request for approval under section 112(l) a commitment to provide
adequate resources to implement and enforce the program. Fees will be
collected from FESOP sources through both the Title V and FESOP
process. Sources applying through the FESOP program will be charged a
fee based upon actual emissions. Because the processing of a FESOP
permit consumes considerably less resources than the processing of a
Title V permit, the State believes that sufficient resources will be
available to administer FESOP permits for those who request and
qualify. USEPA believes this mechanism will be sufficient to provide
for adequate resources to implement this program, and will monitor the
State's implementation of the program to assure that adequate resources
continue to be available.
Wisconsin's FESOP program also meets the requirement for an
expeditious schedule for assuring compliance. A source seeking a
voluntary limit on potential to emit is probably doing so to avoid a
Federal requirement applicable on a particular date. Nothing in this
program would allow a source to avoid or delay compliance with the
Federal requirement if it fails to obtain the appropriate federally
enforceable limit by the relevant deadline. Finally, Wisconsin's FESOP
program is consistent with the objectives of the section 112 program
since its purpose is to enable sources to obtain federally enforceable
limits on potential to emit to avoid major source classification under
section 112. USEPA believes this purpose is consistent with the overall
intent of section 112.
After consideration of the material submitted by the State of
Wisconsin, USEPA has determined that the Wisconsin Operating Permit
Program satisfies the five criteria needed to establish federal
enforceability of State operating permits, published in the Federal
Register on June 28, 1989 (54 FR 27274), and the four additional
criteria of section 112(l) of the ACT. USEPA approves the incorporation
of this program into the SIP for the proposes of issuing federally
enforceable operating permits. Therefore, emissions limitations and
other provisions contained in operating permits issued by the State in
accordance with the applicable Wisconsin SIP provisions, approved
herewith, shall be federally enforceable by USEPA, and by any person in
the same manner as other requirements of the SIP. [[Page 3543]]
IV. This Action
USEPA approves the plan revisions submitted on November 15, 1992,
January 15, 1993, July 28, 1993 and January 14, 1994, to implement the
new source review provisions of part D and Operating Permits program.
Each of the program elements mentioned above were properly addressed.
This rule will become effective on February 17, 1995. However, if we
receive notice by February 17, 1995, that someone wishes to submit
adverse comments, then USEPA will publish: (1) A document that
withdraws the action, and (2) a document that begins a new rulemaking
by proposing the action and establishing a comment period. USEPA is
publishing this action without prior proposal because the Agency views
this as a noncontroversial amendment and anticipates no adverse
comments. However, in a separate document in this Federal Register,
USEPA is proposing to approve the SIP revision should adverse or
critical comments be filed. This action will be effective February 17,
1995, unless, within 30 days of its publication, adverse or critical
comments are received.
If USEPA receives such comments, this action will be withdrawn
before the effective date by publishing a subsequent action that will
withdraw the final action. All public comments received will then be
addressed in a subsequent final rule based on this action serving as a
proposed rule. USEPA will not institute a second comment period on this
action. Any parties interested in commenting on this action should do
so at this time. If no such comments are received, the public is
advised that this action will be effective February 17, 1995.
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). The OMB has exempted this action
from review under Executive Order 12866.
Nothing in this action should be construed as permitting, allowing
or establishing a precedent for any future request for revision to any
SIP. USEPA shall consider each request for revision to the SIP in light
of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
Under Executive Order 12866, 58 FR 51735 (October 4, 1993), USEPA
must determine whether the regulatory action is ``significant'' and
therefore subject to OMB review and the requirements of the Executive
Order. The Order defines ``significant regulatory action'' as one that
is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, of State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
OMB has exempted this regulatory action from E.O. 12866 review.
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.
Alternately, USEPA may certify that the rule will not have a
significant 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.
SIP approvals under section 110 and 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 any small entities affected. 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. USEPA, 427 U.S. 246, 256-66 (1976).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur dioxide, Volatile organic compounds.
Dated: December 16, 1994.
Valdas V. Adamkus,
Regional Administrator.
For the reasons set out in the preamble, part 52, chapter 1, title
40 of the Code of Federal Regulations is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart YY--Wisconsin
2. Section 52.2570 is amended by adding paragraphs (c) (75) and
(76) to read as follows:
Sec. 52.2570 Identification of plan.
* * * * *
(c) * * *
(75) On November 15, 1992, January 15, 1993, July 28, 1993, and
January 14, 1994 the State of Wisconsin submitted emergency and
permanent rules for issuance of New Source Review permits for new and
modified air pollution sources in nonattainment areas, as required by
section 182(a)(2)(c) of the Clean Air Act. The emergency rules have now
been superseded by the permanent rules to clarify and specify the NSR
requirements that sources must meet under the Clean Air Act. Also
submitted were portions of 1991 Wisconsin Act 302.
(i) Incorporation by reference.
(A) NR 400--Wisconsin Administrative Code, Air Pollution Control,
Effective date January 1, 1994.
(B) NR 406--Wisconsin Administrative Code, Construction Permits,
Effective date January 1, 1994.
(C) NR 408--Wisconsin Administrative Code, Nonattainment Area Major
Source Permits, Effective date June 1, 1993.
(D) NR 490--Wisconsin Administrative Code, Procedures for
Noncontested Case Public Hearings, Effective date January 1, 1994.
(E) Section 144.30--91-92 Wisconsin Statutes. Effective date May
14, 1992.
(F) Section 144.391--91-92 Wisconsin Statutes. Effective date May
14, 1992.
(G) Section 144.392--Construction permit application and review,
91-92 Wisconsin Statutes. Effective date May 14, 1992.
(H) Section 144.393--91-92 Wisconsin Statutes. Effective date May
14, 1992.
(i) Section 144.394--Permit conditions, 91-92 Wisconsin Statutes.
Effective date May 14, 1992. [[Page 3544]]
(ii) Additional material.
(A) Wisconsin's Emergency NSR regulations. Effective date November
15, 1992.
(B) On December 12, 1994, Donald Theiler, Director, Bureau of Air
Management, WDNR sent a letter to USEPA clarifying Wisconsin's
interpretation of ``any period of 5 consecutive years.'' Wisconsin
interprets the term as referring to the five-year period including the
calendar year in which the increase from the particular change will
occur and the four immediately preceding years.
(76) On January 14, 1994, the State of Wisconsin submitted its
rules for an Operating Permits program intended to satisfy federal
requirements for issuing federally enforceable operating permits.
(i) Incorporation by reference.
(A) NR 407--Wisconsin Administrative Code, Operating Permits,
Effective date January 1, 1994.
* * * * *
[FR Doc. 95-1085 Filed 1-17-95; 8:45 am]
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