[Federal Register Volume 77, Number 66 (Thursday, April 5, 2012)]
[Proposed Rules]
[Pages 20575-20577]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-8207]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2011-0501; FRL-9655-4]


Approval and Promulgation of Air Quality Implementation Plans; 
Wisconsin; Forest County Potawatomi Community Reservation Class I Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: On May 12, 2011, the Wisconsin Department of Natural Resources 
(WDNR) submitted provisions affecting the Forest County Potawatomi 
Community (FCP Community) Class I Area for approval into the Wisconsin 
State Implementation Plan (SIP). The provisions include the regulation 
of sources constructing near the newly designated Class I Area, as well 
as procedures that the FCP Community must follow when providing a 
demonstration regarding a source that may have an adverse impact on the 
Class I Area. In this action, EPA proposes to approve the provisions 
into Wisconsin's SIP.

DATES: Comments must be received on or before May 7, 2012.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2011-0501, by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: [email protected].
    3. Fax: (312) 582-5146.
    4. Mail: Genevieve Damico, Chief, Air Permits Section, Air Programs 
Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson 
Boulevard, Chicago, Illinois 60604.
    5. Hand Delivery: Genevieve Damico, Chief, Air Permits Section, Air 
Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West 
Jackson Boulevard, Chicago, Illinois 60604. Such deliveries are only 
accepted during the Regional Office normal hours of operation, and 
special arrangements should be made for deliveries of boxed 
information. The Regional Office official hours of business are Monday 
through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2011-0501. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or email. The 
www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email comment 
directly to EPA without going through www.regulations.gov your email 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
instructions on submitting comments, go to Section I of the 
SUPPLEMENTARY INFORMATION section of this document.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the Environmental Protection 
Agency, Region 5, Air and Radiation Division, 77 West Jackson 
Boulevard, Chicago, Illinois 60604. This facility is open from 8:30 
a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. 
We recommend that you telephone Danny Marcus, Environmental Engineer, 
at (312) 353-8781 before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Danny Marcus, Environmental Engineer, 
Air Permits Section, Air Programs Branch (AR-18J), Environmental 
Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, 
Illinois 60604, (312) 353-8781, [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This supplementary information 
section is arranged as follows:

I. What should I consider as I prepare my comments for EPA?
II. Background
III. What changes is EPA proposing to approve?
IV. What action is EPA taking?
V. Statutory and Executive Order Reviews

I. What should I consider as I prepare my comments for EPA?

    1. Follow directions--EPA may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    2. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    3. Describe any assumptions and provide any technical information 
and/or data that you used.
    4. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    5. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    6. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    7. Make sure to submit your comments by the comment period deadline 
identified.

II. Background

Redesignation of the Forest County Potawatomi Community

    On April 29, 2008, at 73 FR 23086, the Administrator granted the 
application of the FCP Community to obtain Class I redesignation of 
certain reservation lands from ``Class II'' to ``Class I'' under the 
Clean Air Act's (CAA) Prevention of Significant Deterioration (PSD) 
Program. This rulemaking redesignated to Class I status lands held in 
trust for the FCP Community. At the same time, EPA published two 
actions resolving disputes with Wisconsin and Michigan under the CAA, 
in which those states had challenged the FCP Community's application 
for Class I redesignation. The history of these dispute resolutions is 
discussed in detail in EPA's April 29, 2008, actions for the resolution 
of these two matters at 73 FR 23107 and 73 FR 23111. The dispute 
resolution reached by Wisconsin and the FCP Community was formalized in 
a Memorandum of Agreement (MOA) which was signed in 1999.

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The FCP Community and the State of Wisconsin Memorandum of Agreement

    The 1999 MOA provided a framework for establishing how the State 
and FCP Community would implement the Class I Area under their 
respective authorities. The provisions of the agreement became 
effective upon EPA's final action to approve the FCP Community's 
request for Class I redesignation. While EPA also was a signatory to 
the agreement, EPA's role in the process was to acknowledge the 
agreement entered into by the parties on their own respective 
authorities.
    Section 164(e) of the CAA, provides that ``If the [state and the 
Indian Tribe] do not reach agreement, the Administrator shall resolve 
the dispute and his determination or the results of the agreements 
reached through other means, shall become part of the applicable plan 
and shall be enforceable as part of such plan.'' CAA section 164(e), 42 
U.S.C. 7474(e). The PSD program is implemented in Wisconsin under an 
EPA approved SIP that excludes all of Indian country within the State. 
Because the terms of the MOA set out requirements for sources locating 
outside the Class I Area, it is appropriate to implement these 
requirements through the SIP which applies to all areas excluding 
Indian country in Wisconsin. 73 FR 23114. These revisions are the 
subject of today's proposal.
    Pursuant to the MOA, all major sources in Wisconsin that are 
located within a 10-mile radius of any redesignated FCP land must 
perform a Class I increment analysis and must meet the increment 
consumption requirements applicable to a Class I Area. Major sources 
located beyond the 10-mile distance from redesignated lands must 
perform a Class II increment analysis and comply with the consumption 
requirements applicable to a Class II Area. Additionally, all major 
sources within 62 miles of the FCP Community's Class I redesignated 
area must determine by an analysis whether their emissions will have an 
adverse impact on those Air Quality Related Values (AQRV) associated 
with that Class I Area.
    EPA takes the position that it generally will not interfere with 
the agreements reached between tribes and states through the CAA's 
section 164(e) dispute resolution process. However, to the extent that 
the agreement reached under the terms of the MOA allows for restricting 
the requirements normally associated with Class I areas as these apply 
to sources located outside a 10-mile radius of the redesignated 
reservation lands, EPA takes the position that a revision of the 
Wisconsin SIP is necessary to implement these provisions for potential 
sources located outside the boundaries of the redesignated parcels. In 
the absence of such modification to the Wisconsin SIP, the current PSD 
rules will apply to sources locating outside the Class I Area, and the 
provisions of the MOA would lack enforceability.
    Between 2008 and 2010, representatives from the FCP Community, 
WDNR, and EPA met and held discussions to determine how to translate 
the general principles of the MOA into implementable regulations. These 
discussions covered definition of the areas within which sources would 
be required to conduct the Class I and Class II increment analyses, 
notification procedures, and a state-tribal dispute resolution 
mechanism. Representatives for the FCP Community and WDNR then worked 
together to develop the necessary regulatory provisions.

III. What changes is EPA proposing to approve?

    The regulatory revisions that Wisconsin has submitted for EPA's 
approval include defining the geographic center of the FCP Community 
Class I Area for purposes of air quality management. Additionally, 
proposed new major sources or major modifications of existing sources 
locating within 22.25 miles of the geographic center of the FCP 
Community Class I Area must conduct a Class I increment analysis and 
are subject to Class I consumption limits.
    Proposed new major sources or major modifications of existing 
sources locating outside 22.25 miles of the geographic center of the 
FCP Community Class I Area must conduct a Class II increment analysis 
and are subject to Class II consumption limits. The rules also include 
procedures for the FCP Community to coordinate with the state regarding 
comments on sources potentially impacting the Class I Area and to make 
a demonstration to the state that a proposed source may have an adverse 
effect on AQRVs. Finally, the rules provide the FCP Community with the 
opportunity to review certain best available control technology (BACT) 
and maximum achievable control technology (MACT) determinations made by 
the State, and provide a dispute resolution mechanism for resolving 
disagreements regarding BACT or MACT determinations for certain new or 
modified sources. The rules proposed for approval are as follows:

NR 400.02 (66m) ``Forest County Potawatomi Community Class I Area'' or 
``FCPC Class I Area''

    Means those land parcels of the Forest County Potawatomi 
Reservation that are designated as a non-Federal Class I Area by EPA 
under 40 CFR 52.2581. The FCP Community Class I Area has a geographic 
center, as determined by the department, at latitude 45.49978[deg] N, 
longitude 88.64377[deg] W.

NR 405.19 ``Forest County Potawatomi Class I Area.''
    (1) For any new major source or major modification of an existing 
source, the FCP Community shall have the opportunity to present to the 
department, within no more than 75 days of receipt of a complete permit 
application by the department, a demonstration that the emissions from 
the proposed new major source or major modification would have an 
adverse impact on the established air quality related values of the FCP 
Community Class I Area.
    (2) New major sources or major modifications of existing sources 
wholly or partially locating or located within a radius of 22.25 miles 
from the geographic center of the FCP Community Class I Area, as 
identified in s. NR 400.02 (66m), are subject to an increment analysis 
and limited to the maximum allowable increase levels of a Class I Area.
    (3) New major sources or major modifications of existing sources 
locating or located wholly outside the area defined in sub. (2) are 
subject to an increment analysis and maximum allowable increase levels 
of a Class II Area.

NR 406.08 ``Action on permit applications.''

    (4)(a) The FCP Community shall have the opportunity to review BACT 
or MACT determinations made by the department for any new or modified 
source that is either of the following:
    1. Wholly or partially locating or located within a radius of 22.25 
miles from the geographic center of the FCP Community Class I Area, as 
identified in s. NR 400.02 (66m).
    2. Wholly or partially locating or located within 62 miles of the 
FCP Community Class I Area, and has a modeled impact exceeding 1 
microgram per cubic meter averaged over any 24-hour period for mercury 
or for any regulated pollutant that has an ambient air quality standard 
in s. NR 404.04.
    (b) Disagreements between the department and the FCP Community 
regarding BACT or MACT determinations are subject to dispute resolution 
but the department shall act

[[Page 20577]]

on a permit application according to time period requirements under ss. 
285.61 and 285.62, Stats.

IV. What action is EPA taking?

    EPA is proposing to approve Wisconsin's May 12, 2001, submittal, 
relating to provisions impacting the FCP Community Class I Area. 
Specifically, Wisconsin's submittal defines the geographic center of 
the FCP Community Class I Area, establishes requirements for sources 
which may potentially impact the FCP Community Class I Area, provides 
the FCP Community the opportunity to review certain BACT and MACT 
determinations, and establishes a dispute resolution process for issues 
that may arise between the FCP Community and the State. The provisions 
proposed for approval into Wisconsin's SIP include: NR 400.02(66m), NR 
405.19, and NR 406.08(4).
    EPA has made the preliminary determination that the SIP submittal 
is approvable because EPA takes the position that it generally will not 
interfere with the agreements reached between Tribes and States through 
the CAA's section 164(e) dispute resolution process, which provides 
that the results of such agreements will become part of the appropriate 
applicable plan. EPA's 2008 rulemaking anticipated that revisions to 
the Wisconsin SIP would be needed to fully implement the 1999 MOA 
between the State and the FCP Community.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law. In May 2011, EPA 
issued its policy on consultation and coordination with Indian tribes. 
EPA explained that its policy is to consult on a government-to-
government basis with Federally recognized tribal governments when EPA 
actions and decisions may affect tribal interests. Accordingly, EPA 
engaged in consultation with the FCP Community regarding the Wisconsin 
proposed SIP revisions.
    The Wisconsin proposed SIP revisions which define the FCP 
Community's Class I Area, and which define those sources that are 
required to conduct Class I and Class II increment analysis, and which 
provide for the FCP Community's participation in certain BACT or MACT 
determinations will all enable the FCP Community and Wisconsin to work 
together to cooperatively implement the FCP Community's Class I Area, 
which is an integral part of the FCP Community's goal of exercising 
control over reservation resources to better protect the members of the 
FCP Community.
    In the process of reviewing the proposed Wisconsin SIP revisions, 
EPA consulted with FCP Community tribal officials to permit them to 
have meaningful and timely input into the Agency's review. EPA 
consulted with representatives of the FCP Community prior to proposing 
to approve the Wisconsin SIP revision. During this consultation, EPA 
explained the provisions included in the proposed Wisconsin SIP 
revision and answered questions. EPA intends to keep the FCP Community 
informed of the progress of this proposed SIP approval.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Sulfur oxides, Volatile organic 
compounds.

    Dated: March 26, 2012.
Susan Hedman,
Regional Administrator, Region 5.
[FR Doc. 2012-8207 Filed 4-4-12; 8:45 am]
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