[Federal Register Volume 66, Number 233 (Tuesday, December 4, 2001)]
[Rules and Regulations]
[Pages 62951-62954]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-29964]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[WI; FRL-7111-8]


Clean Air Act Final Full Approval of Operating Permit Program; 
Wisconsin

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final Rule.

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[[Page 62952]]

SUMMARY: The EPA is taking final action to fully approve the operating 
permit program submitted by the state of Wisconsin. Wisconsin submitted 
its operating permit program pursuant to subchapter V of the Clean Air 
Act (Act), which requires that permitting authorities develop, and 
submit to EPA, programs for issuing operating permits to all major 
stationary sources and to certain other sources within the permitting 
authority's jurisdiction.

EFFECTIVE DATE: November 30, 2001.

ADDRESSES: Copies of the state's submittal and other supporting 
information used in developing the final full 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, and (312) 353-2654, respectively, E-Mail 
Addresses: [email protected], and [email protected].

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

    What is being addressed in this document?
    What is involved in this final action?

I. What Is Being Addressed in This Document?

    As required under Subchapter V of the Act, EPA has promulgated 
regulations that define the minimum elements of an approvable state 
operating permit program and the corresponding standards and procedures 
by which the EPA will approve, oversee, and withdraw approval of state 
operating permit 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, generally known as title V, states and 
local permitting authorities developed, and submitted to EPA, programs 
for issuing operating permits to all major stationary sources and to 
certain other sources.
    The EPA's program review occurs under section 502 of the Act and 
the part 70 regulations, which together outline criteria for approval 
or disapproval. 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 Operating 
permit program under 40 CFR part 71.
    The state of Wisconsin submitted its title V operating permits 
program for approval on January 27, 1994. The EPA promulgated interim 
approval of the Wisconsin title V program on March 6, 1995 (60 FR 
12128), finding that Wisconsin's program substantially, but not fully, 
met the requirements of title V and part 70 and identifying certain 
deficiencies that Wisconsin would need to correct. The interim approved 
program became effective on April 5, 1995. Subsequently, EPA extended 
Wisconsin's title V interim approval period on several occasions, most 
recently to December 1, 2001 (65 FR 32036).
    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 deficiencies identified in the March 6, 1995 interim 
approval action and also included additional program revisions and 
updates. Based on the interim approval corrections contained in the 
submittals, EPA proposed full approval for the Wisconsin title V 
program on October 30, 2001 (66 FR 54734). The EPA received no public 
comments on the proposal. The EPA is taking final action to grant full 
approval to the Wisconsin title V program.

What Is Involved in This Final Action?

    The EPA is granting full approval of the operating permit program 
submitted by Wisconsin based on the interim approval corrections 
submitted on March 28, 2001, and supplemental packages submitted 
September 5, 2001 and September 17, 2001. These revisions 
satisfactorily address the program deficiencies identified in EPA's 
March 6, 1995 interim approval rulemaking.
    On May 22, 2000, EPA promulgated a rulemaking that extended the 
interim approval period of 86 operating permit 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 that would alert the public that they may 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 notice.
    The EPA received one timely comment letter pertaining to the 
Wisconsin title V program. As stated in the Federal Register notice 
published on October 30, 2001 proposing to fully approve Wisconsin's 
operating permit program, EPA takes no action on those comments in 
today's action. Rather, EPA expects to respond by December 1, 2001 to 
timely public comments on Wisconsin's program and other programs that 
have obtained interim approval, and by April 1, 2002 to timely comments 
on fully approved programs. Consistent with these time frames, EPA also 
will publish a notice of deficiency (NOD) if EPA 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 EPA has identified through its program 
oversight. Furthermore, in the future, EPA may issue an additional NOD 
if EPA or a citizen identifies other deficiencies. EPA Region 5 will 
post its response letters on the Internet at http://yosemite.epa.gov/r5/ardcorre.nsf/Title+V+Program+Comments. EPA Region 5 includes the 
states of Michigan, Minnesota, Illinois, Indiana, Ohio, and Wisconsin. 
EPA will also publish a national notice of availability in the Federal 
Register notifying the public that EPA has responded in writing to the 
commenters and explaining how the public may obtain a copy of EPA's 
responses.

Administrative Requirements

A. What Are the Administrative Requirements for This Action?

    Under Executive Order 12866, ``Regulatory Planning and Review'' (58 
FR 51735, October 4, 1993), this final approval is not a ``significant 
regulatory action'' and therefore is not subject to review by the 
Office of Management and Budget. For this reason, this action is also 
not subject to Executive Order 13211, ``Actions Concerning Regulations 
That Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001). This action merely approves state law as meeting 
federal requirements and imposes no additional requirements beyond 
those imposed by state law. Accordingly, the Administrator certifies 
that this final approval will not have a significant economic impact on 
a substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601

[[Page 62953]]

et seq.). Because this rule approves pre-existing requirements under 
state law and does not impose any additional enforceable duty beyond 
that required by state law, it does not contain an unfunded mandate nor 
does it significantly or uniquely affect small governments, as 
described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
    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). This rule merely 
approves 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 final approval also is not subject to Executive Order 13045, 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not a significant 
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 submitted pursuant to title V 
of the Act, EPA will approve state programs provided that they meet the 
requirements of the Act and EPA's regulations codified at 40 CFR part 
70. Absent a prior existing requirement for the state to use voluntary 
consensus standards, EPA has no authority to disapprove a state 
operating permit program 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 a state program that otherwise 
satisfies the provisions of the Act. Therefore, the requirements of 
section 12(d) of the NTTA do not apply.
    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 November 30, 2001.
    Under section 307(b)(1) of the Act, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by February 4, 2002. 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 section 307(b)(2) of the Act.)

B. What Is the Effective Date of EPA's Full Approval of Wisconsin's 
Title V Program?

    The EPA's approval of Wisconsin's title V program is effective on 
November 30, 2001. Pursuant to section 502(h) of the Act, the effective 
date of a permitting program approved under title V is the date of 
approval by the Administrator or her delegatee. Furthermore, the good 
cause exception under the Administrative Procedure Act (APA) allows EPA 
to make the full approval of the state's program immediately effective. 
In relevant part, the APA provides that publication of ``a substantive 
rule shall be made not less than 30 days before its effective date, 
except-- * * * (3) as otherwise provided by the agency for good cause 
found and published with the rule.'' 5 U.S.C. Sec. 553(d)(3). Section 
553(b)(3)(B) of the APA provides that good cause may be supported by an 
agency determination that a delay in the effective date is 
impracticable, unnecessary, or contrary to the public interest. The EPA 
finds that it is necessary and in the public interest to make this 
action effective sooner than 30 days following publication. In this 
case, EPA believes that it is in the public interest for the program to 
take effect before December 1, 2001. The EPA's interim approval of 
Wisconsin's prior program expires on December 1, 2001. In the absence 
of this full approval of Wisconsin's amended program taking effect on 
November 30, the federal program under 40 CFR part 71 would 
automatically take effect in Wisconsin and would remain in place until 
the effective date of the fully-approved state program. The EPA 
believes it is in the public interest for sources, the public and 
Wisconsin to avoid any gap in coverage of the state program, as such a 
gap could cause confusion regarding permitting obligations. 
Furthermore, a delay in the effective date is unnecessary because WDNR 
has been administering the title V permit program for over five years 
under an interim approval. Through this action, EPA is approving a few 
revisions to the existing and currently operational program. The change 
from the interim approved program which substantially met the part 70 
requirements, to the fully approved program is relatively minor, in 
particular if compared to the changes between a state-established and 
administered program and the federal program.

C. What Is the Scope of EPA's Full Approval?

    In Wisconsin's final interim approval (60 FR 12128, March 6, 1995), 
EPA did not approve the state's program in Indian country. Similarly, 
this final full approval, which only addresses the state's interim 
approval corrections, also does not approve Wisconsin's operating 
permit program in Indian country. To date, no tribal government in 
Wisconsin has applied to EPA for approval to administer a title V 
program in Indian country within the state. The EPA regulations at 40 
CFR part 49 govern how eligible Indian tribes may seek approval from 
EPA to implement a title V program on Indian reservations and in

[[Page 62954]]

non-reservation areas over which the tribe has jurisdiction. The EPA's 
part 71 regulations govern the issuance of federal operating permits in 
Indian country. The EPA's authority to issue permits in Indian country 
was challenged in Michigan v. EPA, (D.C. Cir. No. 99-1151). On October 
30, 2001, the court issued its decision in the case, vacating a 
provision that would have allowed EPA to treat areas over which EPA 
determines there is a question regarding the area's status as if it is 
Indian country, and remanding to EPA for further proceedings. The EPA 
will respond to the court's remand and explain EPA's approach for 
further implementation of part 71 in Indian country in a future action.

List of Subjects in Part 70

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

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

    Dated: November 27, 2001.
Thomas V. Skinner,
Regional Administrator, Region V.


    40 CFR part 70 is amended as follows:

PART 70--[AMENDED]

    1. The authority citation for part 70 continues to read as follows:

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

    2. Appendix A to part 70 is amended by revising the entry for 
Wisconsin to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating 
Permits Programs

* * * * *

Wisconsin

    (a)(1) Department of Natural Resources: Submitted on January 27, 
1994; interim approval effective on April 5, 1995; interim approval 
expires December 1, 2001.
    (2) Department of Natural Resources: Interim approval 
corrections submitted on March 28, 2001, September 5, 2001, and 
September 17, 2001; submittals adequately address the conditions of 
the interim approval which expires on December 1, 2001. Based on 
these corrections, Wisconsin is hereby granted final full approval 
effective on November 30, 2001.
    (b) [Reserved]
* * * * *
[FR Doc. 01-29964 Filed 12-3-01; 8:45 am]
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