[Federal Register Volume 59, Number 21 (Tuesday, February 1, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-2168]
[[Page Unknown]]
[Federal Register: February 1, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[WI31-02-6033; AMS-FRL-4830-1]
Approval and Promulgation of a Commitment To Adopt a Rule for
Reasonably Available Control Technology for Oxides of Nitrogen for
Wisconsin
AGENCY: United States Environmental Protection Agency (USEPA).
ACTION: Final rule.
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SUMMARY: The USEPA is conditionally approving a revision to the
Wisconsin State Implementation Plan (SIP) for ozone. This revision was
submitted by the State to satisfy Clean Air Act (Act) requirements for
adoption of rules for application of reasonably available control
technology (RACT) for oxides of nitrogen (NOx) in the Milwaukee,
Kewaunee, Manitowoc, and Sheboygan ozone nonattainment areas in
Wisconsin. The Milwaukee area consists of Kenosha, Milwaukee, Ozaukee,
Racine, Washington, and Waukesha counties. In this notice, USEPA is
acting not on the rules themselves, but on a commitment by the State to
submit NOx RACT rules at a later date.
EFFECTIVE DATE: This action will be effective March 3, 1994.
FOR FURTHER INFORMATION CONTACT: Daniel Meyer, Air Toxics and Radiation
Branch, Regulation Development Section (AT-18J), United States
Environmental Protection Agency, Region 5, Chicago, Illinois 60604,
(312) 886-9401.
SUPPLEMENTARY INFORMATION:
I. Summary of State Submittal
The Wisconsin Department of Natural Resources (WDNR) has committed
to submit NOx RACT rules to USEPA as a revision to its ozone SIP
within 1 year after USEPA approves the commitment. WDNR has not yet
submitted the rules because sufficient evidence does not yet exist to
prove a need for controlling major stationary source NOx emissions
in the Wisconsin ozone nonattainment areas. WDNR is performing
photochemical grid modeling to determine whether NOx controls on
major stationary sources would be beneficial. Modeling results are not
yet available. WDNR submitted the commitment to USEPA on November 15,
1992, and submitted additional information to supplement the original
submittal on January 15, 1993, and March 29, 1993.
II. Analysis of State Submittal
The criteria for approving a NOx RACT committal is set forth
in section 110(k)(4) of the Act and in several documents described in
USEPA's August 4, 1993, notice of proposed rulemaking for approval of
Wisconsin's NOx RACT committal, 58 FR 41451-41452. The memoranda
of July 22, 1992, and September 16, 1992, from Deputy Assistant
Administrator Michael Shapiro to the USEPA Air Division Directors, set
forth the following acceptability criteria for committal SIPs due
November 15, 1992: (1) The State must provide notice and public hearing
on the commitment; (2) the commitment must include the basis for a
conditional approval; and (3) the commitment must include a State work
plan detailing any specific measures to be adopted, the steps that will
be taken to adopt the measures, and the schedule for adoption of those
measures. The State has satisfied all of these requirements in its
commitment.
Two additional guidance documents, the NOx Supplement to the
General Preamble (57 FR 55620-55629) and the February 2, 1993,
memorandum entitled ``Questions and Answers on Nitrogen Oxides
Emissions Policy,'' from G.T. Helms to the Air Branch Chiefs, set forth
the following criteria for determining the acceptability of a NOx
RACT committal SIP for conditional approval: (1) The committal must
describe the reason for the committal instead of a full SIP submittal;
(2) the committal must document that credible photochemical grid
modeling is not available or did not consider the effects of NOx
reductions; (3) the committal must identify the resources to complete
the photochemical grid modeling; and (4) the committal must include a
schedule outlining the milestones that have been and will be achieved
toward completion of the modeling activities and the NOx RACT
rules. In its schedule, the State must commit to adopt NOx RACT
rules and to submit the rules to USEPA within 1 year after USEPA
approval of the committal. The State has complied with all of these
requirements in its committal. Most importantly, the State has
demonstrated that photochemical grid modeling is progressing under the
Lake Michigan Ozone Control Program, and the State has committed to
submit NOx RACT rules to USEPA within 1 year after USEPA approval
of the State committal. A detailed analysis of the submittal can be
found in an April 28, 1993, Region 5 technical support document
proposing conditional approval of this revision to the Wisconsin SIP
for ozone. The USEPA proposed to approve the NOx RACT committal in
an August 4, 1993, Federal Register document. No comments were received
regarding USEPA's proposed action.
III. Implication of Action
USEPA conditionally approves of the State's commitment to adopt
NOx RACT rules for the Milwaukee, Kewaunee, Manitowoc, and
Sheboygan areas in Wisconsin as a revision to the ozone SIP. If the
State fails to submit adopted NOx RACT rules 1 year after USEPA
approval of the commitment, USEPA will propose to disapprove the
commitment as failing to comply with section 110(k)(4) of the Act. If
the State fails to adopt legislative authority or meet other applicable
milestones in the commitment SIP schedule, USEPA may also disapprove
the commitment as failing to comply with section 110(k)(4), if such
failure to meet a specific milestone indicates that the State may not
be able to meet the submission date.
If, after considering comments on the final rulemaking, USEPA
issues a final disapproval or if the conditional approval is converted
to a disapproval, the sanctions clock under section 179(a) will begin.
The clock will begin at the time USEPA issues the final disapproval or
at the time USEPA notifies the State by letter that a conditional
approval has been converted to a disapproval. If the State does not
submit and USEPA does not approve the rule on which the disapproval was
based within 18 months of the disapproval, USEPA must impose one of the
sanctions under section 179(b) highway funding restrictions or the
offset sanction. In addition, the final disapproval starts the 24 month
clock for the imposition of a section 110(c) Federal Implementation
Plan. Finally, under section 110(m), USEPA has discretionary authority
to impose sanctions at any time after a final disapproval.
IV. Executive Order (EO) 12291
This action has been classified as a Table 2 action by the Regional
Administrator under the procedures published in the Federal Register on
January 19, 1989. 54 FR 2214-2225. On January 6, 1989, 54 FR 2222, the
Office of Management and Budget (OMB) waived Table 2 and 3 SIP
revisions from the requirements of section 3 of Executive Order 12291
for a period of 2 years. USEPA has submitted a request for a permanent
waiver for Table 2 and 3 SIP revisions. OMB has agreed to continue the
waiver until such time as it rules on USEPA's request. This request
continues in effect under Executive Order 12866 which superseded
Executive Order 12291 on September 30, 1993.
V. Regulatory Flexibility
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., USEPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, USEPA may certify 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 government entities with jurisdiction over populations
of less than 50,000.
Conditional approvals under sections 110 and 301, subchapter I,
part D of the 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 impose any new requirements,
I certify that it does not have a significant impact on affected small
entities. Moreover, due to the nature of the Federal-State relationship
under the Act, preparation of a regulatory flexibility analysis would
constitute Federal inquiry into the economic reasonableness of State
action. The Act forbids USEPA to base its actions concerning SIPs on
such grounds. Union Electric Co. v. U.S.E.P.A., 427 U.S. 246, 256-66
(1976); 42 U.S.C. 7410(a)(2).
If USEPA issues a final disapproval or the conditional approval is
converted to disapproval under section 110(k) of the Act based upon the
State's failure to meet the commitment, it will not affect any existing
State requirements applicable to small entities. Federal disapproval of
the State submittal does not affect its State-enforceability. Moreover,
USEPA's disapproval of the submittal does not impose a new Federal
requirement. Therefore, USEPA certifies that this disapproval action
does not have a significant impact on a substantial number of small
entities, because it does not remove existing State requirements nor
does it substitute a new Federal requirement.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements.
Dated: January 12, 1994.
Valdas V. Adamkus,
Regional Administrator.
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart YY--Wisconsin
2. Subpart YY is amended by adding Sec. 52.2569 to read as follows:
Sec. 52.2569 Identification of plan--conditional approval.
(a) Revisions to the plan identified in Sec. 52.2570 were submitted
on the date specified.
(1) On November 15, 1992, the Wisconsin Department of Natural
Resources (WDNR) submitted a commitment to adopt oxides of nitrogen
(NOx) reasonably available control technology (RACT) rules as a
proposed revision to the State's ozone State Implementation Plan (SIP).
After holding a public hearing on the submission, WDNR resubmitted the
SIP on January 15, 1993. In this submission, the State commits to adopt
NOx RACT rules within 1 year after United States Environmental
Protection Agency (USEPA) approval of State's commitment. On March 29,
1993, WDNR further committed to submit these rules to USEPA as a
revision to the SIP 1 year after USEPA approval of the State's
commitment. In this section, USEPA conditionally approves the State's
revision to the Wisconsin SIP for ozone.
[FR Doc. 94-2168 Filed 1-31-94; 8:45 am]
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