[Federal Register Volume 66, Number 210 (Tuesday, October 30, 2001)]
[Proposed Rules]
[Pages 54734-54737]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-27257]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[WI; FRL-7094-4]


Clean Air Act Proposed Full Approval Of Operation Permits 
Program; WI

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA proposes to fully approve the Wisconsin title V 
Federal Operation Permits Program, submitted by Wisconsin pursuant to 
subchapter V of the Clean Air Act, which requires states to develop, 
and to submit to EPA for approval, programs for issuing operation 
permits to all major stationary sources and to certain other sources.

DATES: EPA must receive comments on this proposed action on or before 
November 21, 2001.

ADDRESSES: Comments should be addressed to: Robert Miller, Chief, 
Permits and Grants Section, at the address noted below. Copies of the 
state's submittal and other supporting information used in developing 
the proposed approval are available for inspection during normal 
business hours at the following location: EPA Region 5, 77 West Jackson 
Boulevard, AR-18J, Chicago, Illinois, 60604. Please contact Beth 
Valenziano at (312) 886-2703 or Susan Siepkowski at (312) 353-2654 to 
arrange a time to inspect the submittal.

FOR FURTHER INFORMATION CONTACT: Beth Valenziano or Susan Siepkowski, 
AR-18J, 77 West Jackson Boulevard, Chicago, Illinois 60604, Telephone 
Numbers: (312) 886-2703/353-2654 (respectively), e-mail addresses: 
[email protected] or [email protected].

SUPPLEMENTARY INFORMATION: This section provides additional information 
by addressing the following questions:

What is being addressed in this document?
What are the program changes that EPA proposes to approve?
What is involved in this proposed action?

What Is Being Addressed in This Document?

    As required under Subchapter V of the Clean Air Act (``the Act''), 
EPA has promulgated regulations that define the minimum elements of an 
approvable state operation permits program and the corresponding 
standards and procedures by which the EPA will approve, oversee, or 
withdraw approval of the state programs (see 57 FR 32250 (July 21, 
1992)). These regulations are codified at 40 Code of Federal 
Regulations (CFR) part 70. Pursuant to Subchapter V of the Act, 
generally known as title V, and the implementing regulations, states 
developed, and submitted to EPA, programs for issuing operation permits 
to all major stationary sources and to certain other sources. Where a 
program substantially, but not fully, met the requirements of part 70, 
EPA granted the program interim approval. If EPA has not fully approved 
a program by the expiration of its interim approval period, EPA must 
establish and implement a federal program under 40 CFR part 71 in that 
state.
    EPA promulgated final interim approval of the Wisconsin title V 
program on March 6, 1995 (60 FR 12128), and the program became 
effective on April 5, 1995.
    Wisconsin submitted revisions to its title V program for EPA 
approval on March 28, 2001, and submitted supplemental packages on 
September 5, 2001 and September 17, 2001. The submittals included 
corrections to the interim approval issues identified in the March 6, 
1995 interim approval action and additional program revisions and 
updates.

[[Page 54735]]

What Are the Program Changes That EPA Proposes To Approve?

A. Title V Interim Approval Corrections

    In the March 6, 1995 action, EPA identified eight interim approval 
issues. The following is a description of the issues and their 
subsequent resolution.
1. Criminal Fines
    Wisconsin's operation permit program regulations did not provide 
for criminal fines against any person who knowingly makes any false 
material statement, representation, or certification in a permit 
application, as required by 40 CFR 70.11(a)(3)(iii). To correct this 
program deficiency, the Wisconsin Department of Natural Resources 
(WDNR) created section Natural Resources (s. NR) 407.05(10), Wisconsin 
Administrative Code (Wis. Adm. Code), to require all material 
statements, representations, and certifications in a permit application 
to be truthful. This provision is in turn subject to the state's 
criminal enforcement authority, section (s.) 285.87(2), Wisconsin 
Statutes (Wis. Stats.) [s. 144.426(2)(a) \1\], which provides criminal 
penalty authority for violations of state regulations. Wisconsin's 
revised Attorney General's opinion of January 5, 2001, Section XIX, 
confirms the state's authority to impose criminal fines for false 
statements in permit applications.
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    \1\ Since EPA promulgated interim approval of Wisconsin's 
operation permit program, the state recodified the environmental 
chapters of the Wisconsin statutes. This recodification became 
effective on January 1, 1997. To address the recodification, this 
proposal references the current Wisconsin statutory citations, but 
acknowledges the old citations (which were in effect when EPA 
granted Wisconsin interim approval) in brackets.
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2. Application Shield for New and Modified Sources
    40 CFR 70.7(b) requires that the application shield must apply to 
all part 70 sources that meet the application shield requirements. The 
following Wisconsin legislation and regulations did not provide an 
application shield for ``new'' and ``modified sources'' (as defined by 
ss. 285.01(27) and (29), Wis. Stats. [ss.144.30(20s) and (20e)]): s. 
285.60(1)(b), Wis. Stats. [s.144.391(1)(b)]; s. 285.62(8), Wis. Stats. 
[s.144.3925(7)]; s. NR 407.06(2), Wis. Adm. Code; and s. NR 407.08, 
Wis. Adm. Code.
    To correct these program deficiencies, the state amended the four 
provisions to provide the application shield to new and modified 
sources. Wisconsin amended s. 285.60(1)(b), Wis. Stats. [s. 
144.391(1)(b)], to include the reference to the application shield 
provision in s. 285.62(8), Wis. Stats. [s. 144.3925(7)]. The state 
corrected the application shield provision in s. 285.62(8), Wis. Stats. 
[s. 144.3925(7)], by replacing the term ``existing source'' with 
``stationary source'', which encompasses new, modified, and existing 
sources. Wisconsin also revised s. NR 407.06(2), Wis. Adm. Code, by 
replacing the term ``existing source'' with ``stationary source''. 
Finally, the state corrected s. NR 407.08(2) by referencing the 
application shield provisions in s. 285.62(8), Wis. Stats., [s. 
144.3925(7)] for new and modified sources. Wisconsin's revised Attorney 
General's opinion, Section XX, confirms the state's authority to 
provide an application shield for new and modified sources.
3. Operational Flexibility for New and Modified Sources
    The following legislation and regulation did not provide for 
operational flexibility, as required by 40 CFR 70.4(b)(12)(i), for 
``new'' and ``modified sources'': s. 285.60(4), Wis. Stats. 
[s.144.391(4m)]; and s. NR 407.025, Wis. Adm. Code. 40 CFR 
70.4(b)(12)(i) must apply to all part 70 sources. To correct these 
program deficiencies, the state revised s. 285.60(4), Wis. Stats. [s. 
144.391(4m)], and s. NR 407.025, Wis. Adm. Code., by replacing the term 
``existing source'' with ``stationary source''. The term stationary 
source encompasses new, modified, and existing sources. Wisconsin's 
revised Attorney General's opinion, Section XIII, confirms the state's 
authority to provide operational flexibility for new and modified 
sources.
4. Authority To Deny a Renewal Application for a Noncomplying Source
    40 CFR 70.6(a)(6)(i) requires that any permit noncompliance is 
grounds for denial of a permit renewal application. Wisconsin's 
legislation and regulations did not provide the authority to deny a 
renewal application for a source that is not in compliance. To correct 
this deficiency, Wisconsin added s. 285.66(3)(c), Wis. Stats, [s. 
144.396(3)(c)] to provide the authority to deny a renewal application 
for a noncomplying source. The WDNR also revised s. NR 407.09(1)(f)1, 
Wis. Adm. Code, to state that noncompliance with an operation permit is 
grounds for denial of a permit renewal application. Wisconsin's revised 
Attorney General's opinion, Section IV, confirms the state's authority 
to deny a renewal application for a noncomplying source.
5. Reopening for Cause
    40 CFR 70.7(f)(1) establishes the conditions under which reopening 
a permit for cause is mandatory. Wisconsin's regulations, ss. NR 
407.14(1)(b), (c), (d), and (h), Wis. Adm. Code, allowed discretion in 
triggering the permit reopening for cause provisions. To correct these 
deficiencies, WDNR revised s. NR 407.14 to require the department to 
reopen a permit for cause pursuant to the conditions in 40 CFR 
70.7(f)(1). The requirement for reopening the acid rain portion of the 
permit (40 CFR 70.7(f)(1)(ii)) is contained in the state's acid rain 
rule, under s. NR 409.12(6). The state regulations also retain 
discretionary reopening for cause authority for conditions beyond those 
required by 40 CFR 70.7(f)(1). Wisconsin's revised Attorney General's 
opinion, Sections XI and XV, confirms the state's authority for permit 
reopenings.
6. Duty To Supplement or Correct Applications
    Wisconsin's regulations, s. NR 407.05, Wis. Adm. Code, did not 
include the duty to supplement or correct application provisions, as 
required under 40 CFR 70.5(b). To correct this deficiency, WDNR added 
these application requirements to s. NR 407.05(9), Wis. Adm. Code. 
Wisconsin's revised Attorney General's opinion, Section XII, confirms 
the duty to supplement or correct applications.
7. Permit Requirements for New and Modified Noncomplying Sources
    Wisconsin had numerous statutory and regulatory deficiencies 
related to the lack of authority to issue operation permits to new and 
modified part 70 sources that are not in compliance. Wisconsin's 
revised Attorney General's opinion, Section III, addresses all of the 
following new and modified noncomplying source permit requirements. 
First, 40 CFR 70.3(a) requires that the permitting agency must have 
authority to issue permits to all part 70 sources. S. 285.64(1)(a), 
Wis. Stats. [s.144.3935(1)(a)], did not provide WDNR the authority to 
issue operation permits to ``new'' and ``modified'' part 70 sources 
that are not in compliance. Wisconsin corrected this deficiency by 
replacing the term ``existing source'' with ``stationary source'' in s. 
285.64(1)(a), Wis. Stats. [s. 144.3935(1)(a)]. The term stationary 
source encompasses new, modified, and existing sources.
    Second, 40 CFR 70.5(c)(8)(ii)(C) includes specific compliance plan

[[Page 54736]]

application requirements for all part 70 sources that are not in 
compliance. S. NR 407.05(4)(h)2.c., Wis. Adm. Code, did not provide 
that compliance plan application requirements for noncomplying new and 
modified sources include a narrative description of how the sources 
will achieve compliance. Wisconsin corrected this deficiency by 
replacing the term ``existing source'' with ``stationary source'' in s. 
NR 407.05(4)(h)2.c, Wis. Adm. Code.
    Third, 40 CFR 70.5(c)(8)(iii)(C) requires schedules of compliance 
in all noncomplying part 70 source applications. S. NR 
407.05(4)(h)3.c., Wis. Adm. Code, did not provide for schedule of 
compliance application requirements for noncomplying new and modified 
sources. Wisconsin corrected this deficiency by removing the term ``for 
existing sources'' in s. NR 407.05(4)(h)3.c, Wis. Adm. Code. The 
provision now applies to all noncomplying sources.
    Fourth, 40 CFR 70.5(c)(8)(iv) requires progress report schedules in 
all noncomplying part 70 source applications. S. NR 407.05(4)(h)4, Wis. 
Adm. Code, did not provide for progress report application requirements 
for noncomplying new and modified sources. Wisconsin corrected this 
deficiency by replacing the term ``existing sources'' with ``stationary 
sources'' in s. NR 407.05(4)(h)4., Wis. Adm. Code.
    Fifth, 40 CFR 70.6(c)(3) and (4) require schedule of compliance and 
progress report requirements in all part 70 permits that are issued to 
noncomplying sources. S. NR 407.09(4)(b), Wis. Adm. Code, did not 
provide for schedule of compliance and progress report requirements in 
permits issued to noncomplying new and modified sources. Wisconsin 
corrected this deficiency by replacing the term ``existing sources'' 
with ``stationary sources'' in s. NR 407.09(4)(b), Wis. Adm. Code.
8. Source Exemptions
    A ``major source,'' as defined at 40 CFR 70.2, among other things, 
is a source whose potential to emit is above specific emission 
threshold levels. A source can avoid major source status by accepting 
limits on its potential to emit.
    As discussed in the March 6, 1995 final interim approval, ss. NR 
407.03(1)(d), (g), (h), (o), (s), and (sm) exempted certain sources 
from permitting requirements without providing adequate procedures to 
limit their potential to emit \2\. In addition, s. NR 407.03(1)(t), 
Wis. Adm. Code, potentially exempted certain major part 70 sources from 
the program, depending on the type of source. Therefore, s. NR 
407.03(1)(d), (g), (h), (o), (s), (sm), and (t) improperly limited 
WDNR's ability to permit all major sources, as required by 40 CFR 70.3.
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    \2\ Note that the interim approval action on Wisconsin's program 
required limits on potential to emit to be federally enforceable. 
However, several court cases have vacated the federally enforceable 
requirement in certain Act programs, including title V. See EPA's 
August 27, 1996 guidance from John Seitz and Robert Van Heuvelen 
entitled: ``Extension of January 25, 1995 Potential to Emit 
Transition Policy''.
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    The WDNR corrected ss. NR 407.03(1)(d), (g), (h), (o), and (s) by 
creating ``prohibitory rules'' that include specific recordkeeping 
requirements for each exemption in s. NR 407.03(4). See EPA's January 
25, 1995 memorandum from John Seitz and Robert Van Heuvelen entitled: 
``Options for Limiting the Potential to Emit of a Stationary Source 
under Section 112 and Title V of the Clean Air Act'', and EPA's August 
27, 1996 guidance from John Seitz and Robert Van Heuvelen entitled: 
``Extension of January 25, 1995 Potential to Emit Transition Policy''. 
The state corrected s. NR 407.03(1)(sm), Wis. Adm. Code, by 
specifically excluding major sources, sources subject to sections 111 
or 112 of the Act, and sources subject to certain state toxics 
requirements from being eligible for the exemption. The WDNR also 
corrected s. NR 407.03(1)(t) by specifically excluding major sources 
from being eligible for the exemption. Wisconsin's revised Attorney 
General's opinion, Section II, confirms the state's authority to 
require operation permits for all part 70 sources.

B. Other Title V Program Revisions

    The WDNR has made changes to its title V program in addition to the 
interim approval corrections. The EPA will address the additional 
program revisions in a separate rulemaking action.

What Is Involved in This Proposed Action?

A. Proposed Action

    The EPA proposes full approval of the Wisconsin operation permits 
program based on the corrective program revisions the state submitted 
on March 28, 2001, September 5, 2001, and September 17, 2001. This 
proposed full approval of Wisconsin's corrective operation permit 
program submittal addresses only the requirements of title V and part 
70, and does not apply to any other federal program requirements, such 
as State Implementation Plans pursuant to section 110 of the Act. The 
EPA finds that Wisconsin has satisfactorily addressed the program 
deficiencies identified in EPA's March 6, 1995 interim approval 
rulemaking.

B. Citizen Comment Letter on Wisconsin Title V Program

    On May 22, 2000, EPA promulgated a rulemaking that extended the 
interim approval period of 86 operation permits programs until December 
1, 2001 (65 FR 32035). The action was subsequently challenged by the 
Sierra Club and the New York Public Interest Research Group. In 
settling the litigation, EPA agreed to publish a notice in the Federal 
Register, so that the public would have the opportunity to identify and 
bring to EPA's attention alleged programmatic and/or implementation 
deficiencies in title V programs. In turn, EPA would respond to the 
public's allegations within specified time periods, if the comments 
were made within 90 days of publication of the Federal Register 
document.
    The EPA received one timely comment letter pertaining to the 
Wisconsin title V program. The EPA takes no action on those comments in 
today's action. As stated in the Federal Register document published on 
December 11, 2000, (65 FR 77376) EPA will respond by December 1, 2001 
to timely public comments on programs that have obtained interim 
approval; and EPA will respond by April 1, 2002 to timely comments on 
fully approved programs. The EPA will publish a notice of deficiency 
(NOD) if the Agency determines that a deficiency exists, or will notify 
the commenter in writing to explain the reasons for not making a 
finding of deficiency. An NOD will not necessarily be limited to 
deficiencies identified by citizens and may include any deficiencies 
that we have identified through our program oversight.

Administrative Requirements

    Under Executive Order 12866, ``Regulatory Planning and Review'' (58 
FR 51735, October 4, 1993), this proposed action is not a ``significant 
regulatory action'' and therefore is not subject to review by the 
Office of Management and Budget. Under the Regulatory Flexibility Act 
(5 U.S.C. 601 et seq.) the Administrator certifies that this proposed 
rule will not have a significant economic impact on a substantial 
number of small entities, because it merely approves State law as 
meeting Federal requirements and imposes no additional requirements 
beyond those imposed by State law.

[[Page 54737]]

This rule does not contain any unfunded mandates and does not 
significantly or uniquely affect small governments, as described in the 
Unfunded Mandates Reform Act of 1995 (Public Law 104-4), because it 
proposes to approve pre-existing requirements under State law and does 
not impose any additional enforceable duties beyond that required by 
State law. This rule also does not have tribal implications because it 
will not have a substantial direct effect on one or more Indian tribes, 
on the relationship between the Federal Government and Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal Government and Indian tribes, as specified by Executive Order 
13175, ``Consultation and Coordination with Indian Tribal Governments'' 
(65 FR 67249, November 9, 2000). This rule also does not have 
federalism implications, because it 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, ``Federalism'' (64 FR 43255, August 10, 
1999). The rule merely proposes to approve existing requirements under 
State law, and does not alter the relationship or the distribution of 
power and responsibilities between the State and the Federal Government 
established in the Act. This proposed rule also is not subject to 
Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) or 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001), because it is not a significantly regulatory action 
under Executive Order 12866. This action will not impose any collection 
of information subject to the provisions of the Paperwork Reduction 
Act, 44 U.S.C. 3501 et seq., other than those previously approved and 
assigned OMB control number 2060-0243. For additional information 
concerning these requirements, see 40 CFR part 70. An agency may not 
conduct or sponsor, and a person is not required to respond to, a 
collection of information unless it displays a currently valid OMB 
control number.
    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTA), 15 U.S.C. 272 note, requires Federal agencies to 
use technical standards that are developed or adopted by voluntary 
consensus to carry out policy objectives, so long as such standards are 
not inconsistent with applicable law or otherwise impracticable. In 
reviewing state operating permit programs pursuant to title V of the 
Act, EPA's role is to approve state choices, provided that they meet 
the criteria of the Act. Absent a prior existing requirement for the 
state to use voluntary consensus standards, EPA has no authority to 
disapprove an operating permit program submission for failure to use 
such standards, and it would thus be inconsistent with applicable law 
for EPA to use voluntary consensus standards in place of an operating 
permit program submission that otherwise satisfies the provisions of 
the Act. Therefore, the requirements of section 12(d) of the NTTA do 
not apply.
    As required by section 3 of Executive Order 12988 (61 FR 4729, 
February 7, 1996), in issuing this proposed rule, EPA has taken the 
necessary steps to eliminate drafting errors and ambiguity, minimize 
potential litigation, and provide a clear legal standard for affected 
conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 
15, 1988) by examining the takings implications of the rule in 
accordance with the ``Attorney General's Supplemental Guidelines for 
the Evaluation of Risk and Avoidance of Unanticipated Takings'' issued 
under the executive order, and has determined that the rule's 
requirements do not constitute a taking.

List of Subjects in 40 CFR Part 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Operation permits, 
Reporting and recordkeeping requirements.

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

    Dated: October 18, 2001.
Thomas V. Skinner,
Regional Administrator, Region V.
[FR Doc. 01-27257 Filed 10-29-01; 8:45 am]
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