[Federal Register Volume 65, Number 221 (Wednesday, November 15, 2000)]
[Rules and Regulations]
[Pages 68901-68904]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-29221]



[[Page 68901]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[WI96-01-7327a; FRL-6901-3]


Approval and Promulgation of Implementation Plans; Wisconsin 
Designation of Areas for Air Quality Planning Purposes; Wisconsin

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: On November 5, 1999, the Wisconsin Department of Natural 
Resources (WDNR) submitted a request to the Environmental Protection 
Agency (EPA) to redesignate a portion of the City of Rhinelander 
(Oneida County) Wisconsin from a primary sulfur dioxide 
(SO2) nonattainment area to attainment. In this action EPA 
is approving the State's request, because it meets all of the Clean Air 
Act (Act) requirements for redesignation.
    If EPA receives adverse comments on this action, we will publish a 
timely withdrawal of the direct final rule in the Federal Register 
informing the public that the rule will not take effect.

DATES: This ``direct final'' rule is effective January 16, 2001, unless 
EPA receives adverse or critical comments by December 15, 2000. If the 
rule is withdrawn, EPA will publish timely notice in the Federal 
Register.

ADDRESSES: Send written comments to Carlton Nash, Chief, Regulation 
Development Section, Air Programs Branch (AR-18J), United Environmental 
Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. 
(We recommend that you telephone Madeline Rucker at (312) 886-0661, 
before visiting the Region 5 Office.)
    A copy of this redesignation is available for inspection at this 
Office of Air and Radiation (OAR) Docket and Information Center (Air 
Docket 6102), United States Environmental Protection Agency, Ariel Rios 
Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, (202) 
260-7548.

FOR FURTHER INFORMATION CONTACT: Christos Panos, Regulation Development 
Section (AR-18J), Air Programs Branch, Air and Radiation Division, 
United States Environmental Protection Agency, Region 5, 77 West 
Jackson Boulevard, Chicago, Illinois 60604, (312) 353-8328.

SUPPLEMENTARY INFORMATION:

I. Background

    This Supplementary Information section is organized as follows:

    A. What action is EPA taking?
    B. Why was this SIP revision submitted?
    C. Why can we approve this request?
    D. What requirements must be met for approval of a 
redesignation, and how did the state meet them?

A. What Action Is EPA Taking?

    We are approving the State of Wisconsin's request to redesignate a 
portion of the City of Rhinelander (Oneida County) from a primary 
SO2 nonattainment area to attainment of the SO2 
NAAQS. We are also approving the maintenance plan for this area into 
the Wisconsin SO2 SIP.

B. Why Was This SIP Revision Submitted?

    WDNR believes that the City of Rhinelander is now eligible for 
redesignation because EPA approved Wisconsin's SO2 SIP in 
1995 and SO2 monitors in Rhinelander have not recorded 
exceedances of either the primary or secondary SO2 air 
quality standards since 1986.

C. Why Can We Approve This Request?

    Consistent with the Act's requirements, EPA developed procedures 
for redesignation of nonattainment areas that are in a September 4, 
1992, memorandum from John Calcagni, EPA, titled, Procedures for 
Processing Requests to Redesignate Areas to Attainment. This EPA 
guidance document contains a number of conditions that a State must 
meet before it can request a change in designation for a federally 
designated nonattainment area. That memorandum and EPA's Technical 
Support Document set forth the rationale in support of the 
redesignation of Rhinelander's SO2 nonattainment area to an 
attainment status.

D. What Requirements Must the State Meet for Approval of a 
Redesignation and How Did the State Meet Them?

1. The State Must Show That the Area Is Attaining the Applicable NAAQS
    There are two components involved in making this demonstration:
    a. Ambient air quality monitoring representative of the area of 
highest concentration must show no more than one exceedance annually; 
and
    b. EPA approved air quality modeling must show that the area in 
question meets the applicable standard.
    The first component relies on ambient air quality data 
representative of the area of highest concentration. The primary 24-
hour concentration limit of the SO2 NAAQS is 365 micrograms 
per cubic meter (g/m\3\). The primary annual concentration 
limit is 80 g/m\3\. According to 40 CFR 50.4, an area must 
show no more than one exceedance annually. WDNR's monitoring data 
satisfies the first component, indicating that there has been no 
exceedance of the 24-hour concentration limit since 1986. Monitoring 
data for the annual concentration limit goes back to 1994 and indicates 
no exceedance of the annual limit since that time.
    The second component relies on supplemental EPA approved air 
quality modeling. Air quality modeling, however, could not be used in 
this case because the modeling under-predicted actual ambient air 
concentrations due to the unique topography of the area. Under EPA 
modeling guidelines, ambient data (i.e., a rollback analysis) may be 
used to determine appropriate emission limits. A rollback analysis 
takes a monitored ambient exceedance recorded during a specific set of 
facility operating conditions and determines the amount of the 
exceedance due to each of the source's SO2-emitting 
operations in use at that time. These estimates are then linearly 
``rolled back'' to acceptable SO2 emission limits that 
provide for attainment of the NAAQS under that set of operating 
conditions. The State submitted emission limits determined by using the 
rollback analysis in an October 21, 1994 SIP revision. EPA approved 
these limits into the Wisconsin SO2 SIP by EPA on December 
7, 1994 at 59 FR 63046.
    Therefore, WDNR satisfied the second component by supplying 
monitoring information as a substitute for the modeling demonstration 
requirement, showing that the area has been in attainment of the 
SO2 NAAQS since 1987.
2. The SIP for the Area Must Be Fully Approved Under Section 110(k) of 
the Act and Must Satisfy all Requirements That Apply to the Area
    WDNR submitted the Rhinelander SO2 SIP revision to EPA 
on October 21, 1994 to fulfill the requirements of section 110 and part 
D of the Act. The state's submittal consisted primarily of an August 
22, 1994 Consent Order (AM-94-38) between the state and the Rhinelander 
Paper Company (RPC). EPA approved the permanent requirements of the 
consent order for RPC into the federally enforceable SO2 SIP 
on December 7, 1994 at 59 FR 63046.

[[Page 68902]]

3. EPA Has Determined That the Improvement in Air Quality Is Due to 
Permanent and Enforceable Reductions in Emissions
    Pursuant to the August 22, 1994 Consent Order, RPC must meet 
certain emissions limits. EPA approved these permanent requirements 
into the federally enforceable SIP on December 7, 1994. In addition, if 
RPC exceeds the emission limits contained in the order, WDNR can 
enforce those conditions under Chapter NR 494, Wisconsin Administrative 
Code, and section 144.423 (now 285.83) and 144.426 (now 285.87), Wis. 
Stats.
4. The State Has Met All Applicable Requirements Under Section 110 and 
Part D of the Act That Were Applicable Prior to Submittal of the 
Complete Redesignation Request
    Section 110(a)(2) of the Act contains the general requirements for 
nonattainment plans. Part D contains the general requirements 
applicable to all areas that are designated nonattainment based on a 
violation of the NAAQS. These requirements are satisfied by EPA's 
December 7, 1994 approval of the nonattainment plan that Wisconsin 
submitted on October 21, 1994 for the control of SO2 
emissions in the Rhinelander area.
    A PSD program will replace the requirements of the part D new 
source review program after redesignation of the area. To ensure that 
the PSD program will become fully effective immediately upon 
redesignation, either EPA must delegate the Federal PSD program to the 
State or the State must make any needed modifications to its rules to 
have the approved PSD program apply to the affected area upon 
redesignation. EPA fully approved Wisconsin's PSD program, effective 
June 28, 1999.
5. EPA Has Fully Approved a Maintenance Plan, Including a Contingency 
Plan, for the Area Under Section 175A of the Act
    Section 107(d)(3)(E) of the Act states that, for an area to be 
redesignated, EPA must fully approve a maintenance plan that meets the 
requirements of section 175A. Section 175A of the Act requires states 
to submit a SIP revision that provides for the maintenance of the NAAQS 
in the area for at least 10 years after approval of the redesignation. 
The basic components needed to ensure proper maintenance of the NAAQS 
are: attainment inventory, maintenance demonstration, verification of 
continued attainment, ambient air monitoring network, and a contingency 
plan. EPA is approving the maintenance plan in today's action as 
discussed below.
    a. Attainment Inventory. RPC is the only significant source of 
SO2 emissions in the area.
    b. Maintenance Demonstration and Verification of Continued 
Attainment. As discussed earlier, air quality modeling is not 
applicable in this case because the model under-predicted the 
SO2 impacts for Rhinelander. The SIP approved by EPA on 
December 7, 1994 contained Consent Order AM-94-38. Conditions cited in 
this consent order do not expire and therefore provide for maintenance 
of the SO2 NAAQS for at least 10 years.
    WDNR will monitor growth in the area through the annual submittal 
of RPC's air emission inventory. The plant wide emissions cap 
established in the consent order limits future SO2 emissions 
at RPC. Further, WDNR staff believe the area will remain in attainment 
of the SO2 NAAQS as long as the company does not expand and 
emit SO2 above the consent order limits.
    c. Monitoring Network. The WDNR has committed to operating an 
SO2 monitor in the Rhinelander area until EPA and the WDNR 
both agree that the monitor is no longer necessary.
    d. Contingency Plan. Section 175A of the Act requires that the 
maintenance plan include contingency provisions to promptly correct any 
violation of the NAAQS that occurs after redesignation of the area. 
Upon verification of two exceedances (a violation) of either the 24-
hour or 3-hour SO2 NAAQS, WDNR will investigate the causes 
of the violation. If the analysis of the violation identifies RPC as 
responsible for the violation, WDNR will work with the company to 
ensure that the violation will not occur again. WDNR will involve EPA, 
Region 5, in the discussions with the company. Once WDNR identifies the 
problem and sets a strategy to fix the problem, it will either (1) take 
an enforcement action against the company, (2) revise Consent Order AM-
94-38 for greater stringency, or (3) write rules to control the 
emissions of SO2 at the company. WDNR has committed to the 
following schedule: (1) To identify the responsible source within 30 
days after a monitored violation; (2) to take action against the 
responsible source within 90 days of the violation; and, if EPA 
determines it necessary, (3) to submit a SIP revision to EPA with 360 
days after the violation.

II. Final Action

    We have evaluated the state's submittal and have determined that it 
meets the applicable requirements of the Act, EPA regulations, and EPA 
policy. Therefore, we are approving the State of Wisconsin's request to 
redesignate a portion of the City of Rhinelander (Oneida County) from a 
primary SO2 nonattainment area to attainment of the 
SO2 NAAQS. We are also approving the maintenance plan for 
this area into the Wisconsin SO2 SIP.
    EPA is publishing this action without prior proposal because we 
view this as a noncontroversial amendment and anticipate no adverse 
comments. However, in the proposed rules section of this Federal 
Register publication, we are publishing a separate document that will 
serve as the proposal to approve the state plan should relevant adverse 
comments be filed.
    This action will be effective January 16, 2001 without further 
notice unless relevant adverse comments are received by December 15, 
2000. If EPA receives such comments, we will withdraw this action 
before the effective date by publishing a subsequent document that will 
withdraw the final action. We will then address all public comments 
received in a subsequent final rule based on the proposed action. We 
will not institute a second comment period. Any parties interested in 
commenting on this action should do so at this time. If we do not 
receive such comments, this action will be effective January 16, 2001.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future implementation 
plan. We will consider each request for revision to the SIP separately 
in light of specific technical, economic, and environmental factors and 
in relation to relevant statutory and regulatory requirements.

III. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

B. Executive Order 13045

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under 
Executive Order 12866, and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children, and

[[Page 68903]]

explain why the planned regulation is preferable to other potentially 
effective and reasonably feasible alternatives considered by the 
Agency.
    This rule is not subject to Executive Order 13045 because it does 
not involve decisions intended to mitigate environmental health or 
safety risks.

C. Executive Order 13084

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly affects or uniquely affects 
the communities of Indian tribal governments, and that imposes 
substantial direct compliance costs on those communities, unless the 
Federal government provides the funds necessary to pay the direct 
compliance costs incurred by the tribal governments, or EPA consults 
with those governments. If EPA complies by consulting, Executive Order 
13084 requires EPA to provide to the Office of Management and Budget, 
in a separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. This action does not involve 
or impose any requirements that affect Indian Tribes. Accordingly, the 
requirements of section 3(b) of Executive Order 13084 do not apply to 
this rule.

D. Executive Order 13132

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental Partnership). Executive Order 13132 requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by State and local officials in the development of regulatory policies 
that have federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.'' Under Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law unless the 
Agency consults with State and local officials early in the process of 
developing the proposed regulation.
    This rule will not have substantial direct effects on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government, as specified in Executive Order 13132, because it 
merely approves a state rule implementing a Federal standard, and does 
not alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. Thus, the 
requirements of section 6 of the Executive Order do not apply to this 
rule.

E. Regulatory Flexibility

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
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 small governmental 
jurisdictions.
    This rule will not have a significant impact on a substantial 
number of small entities because SIP approvals under section 110 and 
subchapter I, part D of the Clean Air 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 create 
any new requirements, I certify that this action will not have a 
significant economic impact on a substantial number of small entities. 
Moreover, due to the nature of the Federal-State relationship under the 
Clean Air Act, preparation of flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of state action. The 
Clean Air Act forbids EPA to base its actions concerning SIPs on such 
grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976).

F. Unfunded Mandates

    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
the private sector, of $100 million or more. Under Section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

G. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective January 16, 2001 unless EPA 
receives adverse written comments by December 15, 2000.

H. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal

[[Page 68904]]

agencies to evaluate existing technical standards when developing a new 
regulation. To comply with NTTAA, EPA must consider and use ``voluntary 
consensus standards'' (VCS) if available and applicable when developing 
programs and policies unless doing so would be inconsistent with 
applicable law or otherwise impractical.
    The EPA believes that VCS are inapplicable to this action. Today's 
action does not require the public to perform activities conducive to 
the use of VCS.

I. Petitions for Judicial Review

    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 January 16, 2001. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See Sec. 307(b)(2).)

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Intergovermental 
relations, Reporting and recordkeeping requirements, Sulfur dioxide.

40 CFR Part 81

    Air pollution control, National parks, Wilderness areas.

    Dated: October 27, 2000.
Gary Guleziah,
Acting Regional Administrator, Region 5.

    Title 40, Chapter I 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 et seq.

    2. Section 52.2575 is amended by adding paragraph (b)(3) to read as 
follows:


Sec. 52.2575  Control strategy: Sulfur dioxide.

* * * * *
    (b) * * *
    (3) An SO2 maintenance plan was submitted by the State 
of Wisconsin on November 5, 1999, for the City of Rhinelander, Oneida 
County.

PART 81--DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES

    1. The authority citation for part 81 continues to read as follows:

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


    2. Section 81.350 is amended by revising the entry for Oneida 
County in the table entitled ``Wisconsin-SO2'' to read as 
follows:


Sec. 81.350  Wisconsin.

                                                 Wisconsin--SO2
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                                                         Does not meet
         Designated area             Does not meet         secondary           Cannot be          Better than
                                   primary standards       standards          classified      national standards
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Oneida County...................  ..................  ..................  ..................  X
 
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[FR Doc. 00-29221 Filed 11-14-00; 8:45 am]
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