[Federal Register Volume 67, Number 44 (Wednesday, March 6, 2002)]
[Proposed Rules]
[Pages 10116-10118]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-5311]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[WI104-01-7334; FRL-7153-8]


Approval and Promulgation of Air Quality Implementation Plans; 
Wisconsin; Excess Volatile Organic Compound Emissions Fee Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing to approve a rule that revises 
Wisconsin's State Implementation Plan (SIP) for ozone. The rule 
requires major stationary sources of volatile organic compounds (VOC) 
in the Milwaukee nonattainment area to pay a fee to the state if the 
area fails to attain the one-hour national ambient air quality standard 
for ozone by 2007. The fee must be paid beginning in 2008 and in each 
calendar year thereafter, until the

[[Page 10117]]

area is redesignated to attainment of the one-hour ozone standard. 
Wisconsin submitted this rule on December 22, 2000, as part of the 
state's demonstration of attainment for the one-hour ozone standard.

DATES: EPA must receive comments on this proposed action by April 5, 
2002.

ADDRESSES: Send written comments to: Carlton T. Nash, Chief, Regulation 
Development Section, Air Programs Branch (AR-18J), United States 
Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, 
Illinois 60604.
    Copies of the proposed SIP revision and EPA's analysis are 
available for inspection at the following location: United States 
Environmental Protection Agency, Region 5, Air and Radiation Division, 
77 West Jackson Boulevard, Chicago, Illinois 60604. (Please telephone 
Kathleen D'Agostino at (312) 886-1767 before visiting the Region 5 
Office.)

FOR FURTHER INFORMATION CONTACT: Kathleen D'Agostino, 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) 886-1767.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What Action Is EPA Taking?
II. Who Has To Pay These Fees?
III. How Are the Fees Calculated?
IV. Is Wisconsin Required To Adopt an Excess Emission Fee Rule?
V. What Administrative Requirements Did EPA Consider?

I. What Action Is EPA Taking?

    The EPA is proposing to approve a rule that revises Wisconsin's 
ozone SIP. The rule requires major stationary sources of VOC in the 
Milwaukee nonattainment area to pay a fee to the state if the area 
fails to attain the one-hour national ambient air quality standard for 
ozone by 2007. The fee must be paid beginning in 2008 and in each 
calendar year thereafter, until the area is redesignated to attainment 
of the 1-hour ozone standard.
    The EPA is proposing to approve this rule because it is consistent 
with the requirements of the Clean Air Act (Act).

II. Who Has To Pay These Fees?

    This rule applies to major stationary VOC sources located in the 
Milwaukee nonattainment area. This area includes Kenosha, Milwaukee, 
Ozaukee, Racine, Washington, and Waukesha Counties. For this area, 
major sources are defined as those for which the maximum theoretical 
emissions are 25 tons of VOC per year or more.

III. How Are the Fees Calculated?

    The fee is initially set at $5,000 per ton of VOCs emitted by the 
source during the previous calendar year in excess of 80% of the 
baseline amount. The fee is to be adjusted annually, beginning in 1990, 
by the percentage by which the consumer price index has been adjusted. 
The baseline is the lower of the source's actual or allowable VOC 
emissions, during calendar year 2007. The fee is waived during any year 
that is treated as an extension year, as provided by section 181(a)(5) 
of the Act.

IV. Is Wisconsin Required To Adopt an Excess Emission Fee Rule?

    Under sections 182(d)(3), (e), and 185 of the Act (the Act), states 
are required to adopt an excess emissions fee regulation for ozone 
nonattainment areas classified as severe or extreme. This regulation 
requires major stationary sources of VOC in the nonattainment area to 
pay a fee to the state if the area fails to attain the standard by the 
attainment date set forth in the Act. In Wisconsin, the Milwaukee 
nonattainment area is classified as severe.
    Section 182(f) of the Act requires states to apply the same 
requirements to major stationary sources of oxides of nitrogen 
(NOX) as are applied to major stationary sources of VOC. 
However, section 182(f) also allows the EPA to grant a waiver from this 
requirement if additional NOX reductions would not 
contribute to attainment of the national ambient air quality standard 
for ozone or if they would not produce ozone air quality benefits. On 
July 13, 1994, the states of Wisconsin, Illinois, Indiana and Michigan 
jointly petitioned for an exemption from the requirements of section 
182(f). EPA granted the waiver on January 26, 1996. The waiver was 
revised on November 13, 2001, when EPA published a final approval of 
the Wisconsin's demonstration of attainment of the one-hour ozone 
standard for the Milwaukee-Racine area. This revision changed the basis 
for the waiver from ``would not contribute to (or might interfere with) 
attainment'' to additional NOX reductions beyond those 
submitted by the state are ``excess reductions'' and are not required 
for attainment of the ozone standard. Also the waiver was modified to 
no longer apply to the motor vehicle inspection and maintenance (I/M) 
program. However, while the basis for the NOX waiver was 
changed, the effect of the waiver on NOX related 
requirements (with the exception of the I/M program) remains unchanged. 
For example the waiver from RACT for major NOX sources, 
offsets for major new sources, and Lowest Achievable Emission Rate 
Technology for major new sources remains unaffected. Therefore, because 
an approved section 182(f) waiver remains in effect, Wisconsin is not 
required to include major sources of NOX in its excess 
emissions fee rule.

V. What Administrative Requirements Did EPA Consider?

    Under Executive Order 12866 (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. 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 
proposed action merely proposes to approve state law as meeting federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. Accordingly, the Administrator certifies that 
this proposed rule will not have a significant economic impact on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve 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 proposed rule also does 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 (65 
FR 67249, November 9, 2000), nor will it 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 (64 FR 43255, August 10, 1999), because it 
merely proposes to approve a state rule implementing a federal 
standard, and does not alter the relationship or the distribution of 
power and responsibilities established in the Act. This proposed rule 
also is not subject to Executive Order 13045 (62 FR 19885, April 23, 
1997), because it is not economically significant.

[[Page 10118]]

    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 SIP submissions, 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 a SIP 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 
a SIP 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. This proposed rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Nitrogen dioxide, Ozone, Volatile organic compounds.

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

    Dated: February 15, 2002.
Bertram C. Frey,
Acting Regional Administrator, Region 5.
[FR Doc. 02-5311 Filed 3-5-02; 8:45 am]
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