[Federal Register Volume 60, Number 43 (Monday, March 6, 1995)]
[Rules and Regulations]
[Pages 12128-12137]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-5403]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[WI001; FRL-5164-9]
Clean Air Act Final Interim Approval of the Operating Permits
Program; Wisconsin
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final interim approval.
-----------------------------------------------------------------------
SUMMARY: The EPA is promulgating interim approval of the Operating
Permits Program submitted by the State of Wisconsin for the purpose of
complying with Federal requirements for an approvable State program to
issue operating permits to all major stationary sources, and to certain
other sources.
EFFECTIVE DATE: April 5, 1995.
ADDRESSES: Copies of the State's submittal and other supporting
information used in developing the final interim approval are available
for inspection during normal business hours at the following location:
EPA Region 5, Air and Radiation Division (AT-18J), 77 West Jackson
Boulevard, Chicago, Illinois 60604.
FOR FURTHER INFORMATION CONTACT: Beth Valenziano, Permits and Grants
Section (AT-18J), EPA, 77 West Jackson Boulevard, Chicago, Illinois
60604, (312) 886-2703.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
A. Introduction
Title V of the Clean Air Act (Act), and implementing regulations at
40 Code of Federal Regulations (CFR) part 70 require that States
develop and submit operating permits programs to EPA by November 15,
1993, and that EPA act to approve or disapprove each program within 1
year after receiving the submittal. The EPA's program review occurs
pursuant to 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, meets the requirements of part 70, EPA
may grant the program interim approval for a period of up to 2 years.
If EPA has not fully approved a program by 2 years after the November
15, 1993 date, or by the end of an interim program, it must establish
and implement a Federal program.
On October 19, 1994, EPA proposed interim approval of the operating
permits program for the State of Wisconsin. See 59 FR 52743. The EPA
received public comment from 7 organizations on the proposal and
compiled a Technical Support Document (TSD) responding to the comments
and briefly describing and clarifying aspects of the operating permits
program. In this notice EPA is taking final action to promulgate
interim approval of the operating permits program for the State of
Wisconsin.
II. Final Action and Implications
A. Analysis of State Submission and Response to Public Comments
The EPA received comments on a total of 14 topics from 7
organizations. The EPA's response to these comments is summarized in
this section. Comments supporting EPA's proposal are not addressed in
this notice; however, EPA's complete response to comments TSD is
available in the official file at the Region 5 address noted in the
ADDRESSES section above.
1. Indian Lands
The EPA proposed that interim approval of Wisconsin's operating
permits program not extend to lands within the exterior boundaries of
reservations of federally recognized Indian Tribes in the State of
Wisconsin. The proposal indicated that the Wisconsin Department of
Natural Resources (WDNR) had not demonstrated the legal authority to
regulate sources on tribal lands. WDNR submitted several comments on
this issue, which are summarized and addressed below.
Comment: ``[W]ho will be responsible for issuance of permits to
sources on Indian reservations prior to promulgation of either a tribal
operation permits program or the federal operation permits program
under 40 CFR Part 71? We are not aware of any tribal programs being
developed or implemented in Wisconsin, and the federal part 71 rules
have not yet been formally proposed. We are concerned about the
apparent lack of any regulatory authority over sources on Indian
reservations until a federal or tribal program is promulgated.''
Response: At this time, EPA is not aware of any facility within the
exterior boundaries of a reservation in the State of Wisconsin that
requires a title V operating permit. Further, the Act
[[Page 12129]] explicitly contemplates that Indian Tribes may develop
and administer their own Clean Air Act programs in the same manner as
States. Section 164(c) delegates to Indian governing bodies the
authority to redesignate lands within the exterior boundaries of
reservations of federally recognized Indian tribes for purposes of the
Act's Prevention of Significant Deterioration of Air Quality (PSD)
program. Section 301(d) of the Act delegates to EPA the authority to
specify the provisions of the Act for which it is appropriate to treat
Indian Tribes in the same manner as States. The EPA has issued proposed
rules that would authorize Tribes to administer approved Act programs
in the same manner as States for virtually all provisions of the Act,
including title V operating permit programs. See 59 FR 43956 (Aug. 25,
1994).
The EPA has spelled out some of the steps it currently takes and
plans to take to protect tribal air quality prior to issuance of final
rules authorizing tribal Act programs and ensuing tribal program
approvals. See, e.g., 59 FR at 43960-43961. The EPA is also developing
rules to be issued within the next few months that would provide for
EPA implementation of title V permit programs on tribal lands in the
interim period before tribal programs are approved.
Comment: ``[T]he State of Wisconsin believes that it has authority
to permit sources within Indian reservations if the source may have a
substantial off-reservation impact * * *. The State has jurisdiction to
enforce its air permitting laws on the basis of common law principles
laid down by the United States Supreme Court. Recent decisions of that
Court have departed from the concept of inherent Indian sovereignty as
a bar to State jurisdiction over Indians and leaned towards reliance on
the principle of federal preemption. Rice v. Rehner, 463 U.S. 713
(1983); see also McClanahan v. Arizona State Tax Commission, 411 U.S.
164 (1973) * * *. Although the concept of tribal sovereignty is given
less emphasis today, it continues to be relevant to a form of
preemption analysis applicable to Indian law, which can be summarized
as follows: State jurisdiction is preempted by the operation of federal
law if it interferes or is incompatible with federal and tribal
interests reflected in federal law, unless the State interests at stake
are sufficient to justify the assertion of State authority. New Mexico
v. Mescalero Apache Tribe, 462 U.S. 324, [ ] 334 (1983). Thus, the
inquiry must be whether federal or Indian interests are interfered with
by enforcement of the state's air permitting laws, and, if so, whether
the State interests at stake are sufficient to justify the assertion of
State authority. In California v. Cabazon Band of Mission Indians, 480
U.S. 202 (1987), the Court discusses the issue of whether State laws
apply to on-reservation conduct of Indians. The Court describes the
appropriate analysis, that being the balancing of state, federal, and
tribal interests and the related notion of tribal sovereignty * * *.
Where a State's interest in applying its law outweighs any competing
federal or Indian interests at stake, and where the State's exercise of
its jurisdiction is not incompatible with congressional goals of
promoting Indian self-government, self-sufficiency and economic
development, states may apply their laws unless such application is
preempted by the law. Cabazon, 480 U.S. at 214-216. In the case of the
title V permitting program, no express federal law preempts State
jurisdiction on Indian reservations. While this could occur with
delegation of state status to the tribes, it has not happened yet.
Furthermore, no Tribe in Wisconsin has a comprehensive air management
program similar to that of the State. Given this backdrop, the State's
interests in protecting the health and welfare of its citizens must
prevail.''
``* * * [T]he State of Wisconsin believes that EPA's assertion that
the State has no permitting jurisdiction over non-Indians on Indian
reservations is overly broad, especially where the lands are owned by
non-Indians. It is the State of Wisconsin's position that activities by
non-Indians on Indian reservations are subject to a case-by-case review
to determine whether the tribe (the federal government) or the state
has regulatory jurisdiction. In order to regulate non-Indians, the
tribe must demonstrate its inherent authority on a case-by-case basis.
Montana v. US, 450 US 544 [ ] (1981), Brendale v. Confederated Tribes
of Yakima Indian Nation, 492 US 408 [ ] (1989) * * *. In addition, as
noted above, there is no inherent bar to state jurisdiction over the
on-reservation activities of non-Indians.''
Response: To obtain title V program approval a State must
demonstrate that it has adequate authority to issue permits and assure
compliance by all sources required to have permits under title V with
each applicable requirement under the Act. See Act Sec. 502(b)(5); 40
CFR 70.4(b)(3)(i). The authority must include:
A legal opinion from the Attorney General from the State or the
attorney for those State, local, or interstate air pollution control
agencies that have independent counsel, stating that the laws of the
State, locality, or interstate compact provide adequate authority to
carry out all aspects of the program. This statement shall include
citations to the specific stat[ut]es, administrative regulations,
and, where appropriate, judicial decisions that demonstrate adequate
authority.
40 CFR 70.4(b)(3). Thus, the Act requires affected States to
support their title V program submittals with a specific showing of
adequate legal authority over all regulated sources, including sources
located on lands within Indian reservations. For the reasons outlined
below, EPA concludes that the information presented by WDNR has not
adequately demonstrated authority to regulate title V sources located
within the exterior boundaries of reservations of Federally recognized
Tribes, including any non-Indian owned fee lands within reservation
boundaries.
In Washington Department of Ecology v. EPA, 752 F.2d 1465, 1469
(9th Cir. 1985), the court upheld EPA's decision declining to approve
the application of a state program submitted under the Resource
Conservation and Recovery Act (RCRA) to Indian activities within Indian
country, notwithstanding that ``RCRA does not directly address the
problem of how to implement a hazardous waste management program on
Indian reservations.'' The court reasoned that EPA's decision was
within its reasonable discretion and was buttressed by ``well-settled
principles of federal Indian law'':
States are generally precluded from exercising jurisdiction over
Indians in Indian country unless Congress has clearly expressed an
intention to permit it. [citations omitted]. This rule derives in
part from respect for the plenary authority of Congress in the area
of Indian affairs. [citations omitted]. Accompanying the broad
congressional power is the concomitant federal trust responsibility
toward Indian tribes. [citations omitted]. That responsibility arose
largely from the federal role as a guarantor of Indian rights
against state encroachment. [citation omitted]. We must presume that
Congress intended to exercise its power in a manner consistent with
the federal trust obligation. [citation omitted].
Washington Department of Ecology, 752 F.2d at 1469-1470; see also
United States v. Mazurie, 419 U.S. 544, 556 (1975) (the inherent
sovereign authority of Indian Tribes extends ``over both their members
and their territory''); Montana v. United States, 450 U.S. 544, 556-557
(1981) (Tribes generally have extensive authority to regulate
activities on lands that are held by the United States in trust for the
Tribe).
The cases cited by WDNR do not demonstrate that Wisconsin has
authority to administer its title V operating permits program within
the [[Page 12130]] exterior boundaries of Indian reservations. In New
Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 337-38, 340-41, 343-44
(1983), the Supreme Court held that the State of New Mexico's attempt
to regulate the hunting activities of non-tribal members on a Tribe's
reservation was preempted because federal law recognized the authority
of the Tribe to regulate hunting and fishing and the State regulation
of non-members would entangle and interfere with the federal promotion
of tribal authority. In California v. Cabazon Band of Mission Indians,
107 S.Ct. 1083 (1987), the Court held that California and Riverside
County could not assert jurisdiction over bingo and gambling activities
conducted by Indians on Indian land, even though the primary customers
for the activities were non-Indians. The Court found that neither Pub.
L. No. 83-280 nor the Organized Crime Control Act of 1970 authorized
the State or County to impose gambling laws or ordinances on the
reservation. In McClanahan v. Arizona State Tax Comm., 411 U.S. 164
(1973), the Supreme Court held that it was unlawful for the State of
Arizona to impose an income tax on a reservation Indian whose income
was derived from reservation sources. In three of the four Supreme
Court cases cited by WDNR to support its regulation of Indian country
based on preemption analysis, the Court held that state regulation was
preempted.
In Rice v. Rehner, 463 U.S. 713 (1983) the Supreme Court reversed a
lower court's decision that State regulation of liquor on a reservation
was preempted by Federal law. The Court's decision was based on its
conclusion that ``[i]n the area of liquor regulation, we find no
`congressional enactments demonstrating a firm federal policy of
promoting tribal self-sufficiency and economic development''' (citation
omitted) and that Congress authorized State regulation over Indian
liquor transactions. Rice, 463 U.S. at 724, 726, 734-35. In notable
contrast with liquor regulation and as elaborated below, the Act (and
other environmental statutes) plainly provides for tribal and Federal
programs to protect air quality within reservations. Further, as
explained below, there is well-established Federal policy promoting
collaborative tribal and Federal environmental management of
reservations and treating Tribes, not States, as responsible for
protection of the reservation environment.
WDNR cites two additional Supreme Court cases to support its
comment that EPA has been overbroad in proposing to conclude that the
State lacks authority over non-Indian owned lands within the exterior
boundaries of an Indian reservation. WDNR comments that the
determination of regulatory jurisdiction over such lands should be
based on a specific case-by-case review.
The case law addressing a Tribe's authority over non-members on
non-Indian owned fee lands within the exterior boundaries of a
reservation must be viewed in light of the provisions of the Act
providing for tribal and Federal protection of air quality within
reservation boundaries and the reservationwide concerns presented by
air pollution activities, discussed further below.
As noted, EPA's regulations implementing the title V program
require specific evidence of legal authority. WDNR does not present
Federal law, particularized facts, and a formal legal opinion that
specifically and adequately support its broad claim of title V program
jurisdiction over all reservations in Wisconsin. Adequate State
authority is especially necessary in these circumstances where, as set
out below, the Act and relevant Federal policies provide for Tribes and
EPA to protect reservation air quality, Supreme Court case law
recognizes inherent sovereign tribal authority to regulate activities
on fee lands where the conduct may have a serious and substantial
impact on tribal health or welfare, and EPA has proposed to interpret
the Act tribal authority provisions as granting Tribes' authority over
air pollution activities on fee lands within reservations.
For many years Congress has delegated to Indian governing bodies
the authority to redesignate ``[l]ands within the exterior boundaries
of reservations of federally recognized Indian tribes'' for the PSD
program under the Act. See section 164(c) of the Act. In 1990, Congress
broadly addressed tribal authority under the Act, adding sections
110(o) and 301(d) to the Act. Section 301(d)(2) of the Act authorizes
EPA to issue regulations specifying those provisions of the Act for
which it is appropriate ``to treat Indian Tribes as States.'' Further,
it addresses the potential jurisdictional scope of tribal Act programs,
authorizing EPA to treat Tribes in the same manner as States for ``the
management and protection of air resources within the exterior
boundaries of the reservation or other areas within the tribe's
jurisdiction.'' Act Sec. 301(d)(2)(B). In addition, section 110(o)
provides that tribal implementation plans under the Act ``shall become
applicable to all areas * * * located within the exterior boundaries of
the reservation, notwithstanding the issuance of any patent and
including rights-of-way running through the reservation.'' Section
302(r) of the Act defines ``Indian tribe'' to mean ``any Indian tribe,
band, nation, or other organized group or community, including any
Alaska Native village, which is Federally recognized as eligible for
the special programs and services provided by the United States to
Indians because of their status as Indians.'' Section 302(b) of the Act
includes ``[a]n agency of an Indian tribe'' in the definition of ``air
pollution control agency.'' See also sections 103 and 105 of the Act
(authorizing Federal financial assistance to air pollution control
agencies).
The EPA has proposed to interpret these and other provisions of the
Act as granting Tribes--approved by EPA to administer Act programs in
the same manner as States--authority over all air resources within the
exterior boundaries of a reservation for such programs. The EPA has
explained that ``[t]his grant of authority by Congress would enable
such Tribes to address conduct on all lands, including non-Indian owned
fee lands, within the exterior boundaries of a reservation.'' 59 FR
43956, 43958-43960 (Aug. 25, 1994) (legal rationale).1
\1\EPA's proposed interpretation was informed in part by the
significant regulatory entanglements and inefficiencies that could
result if tribes have reservationwide jurisdiction over Act Tribal
implementation plans (TIPs), as plainly provided in section 110(o)
of the Act, but States are conferred jurisdiction within reservation
boundaries over non-TIP programs, such as title V. See 59 FR 43959;
see also New Mexico v. Mescalero Apache Tribe, 462 U.S. at 340-41.
---------------------------------------------------------------------------
The Supreme Court has indicated that a Tribe ``may * * * retain
inherent power to exercise civil authority over the conduct of non-
Indians on fee lands within its reservation when that conduct threatens
or has some direct effect on the * * * health or welfare of the
tribe.'' Montana, 450 U.S. at 566. A Tribe's inherent authority must be
determined on a case-by-case basis, considering whether the conduct
being regulated has a direct effect on the health or welfare of the
Tribe substantial enough to support the Tribe's jurisdiction over non-
Indians. See Brendale v. Confederated Tribes and Bands of the Yakima
Indian Nation, 492 U.S. 408 (1989).
Thus, EPA observed that even without the proposed grant of
authority, Indian Tribes would very likely have inherent authority over
all activities within reservation boundaries, including non-Indian
owned activities on fee lands, that are subject to Act regulation. The
high mobility of air pollutants, resulting area-wide effects and the
seriousness of such impacts would all tend to support
[[Page 12131]] such inherent tribal authority. See 59 FR 43958, n. 5;
see also 56 FR 64876 at 64877-64879 (Dec. 12, 1991).
On January 24, 1983, the President issued a Federal Indian Policy
stressing two related themes: (1) That the Federal government will
pursue the principle of Indian ``self-government'' and (2) that it will
work directly with tribal governments on a ``government-to-government''
basis. An April 29, 1994 Presidential Memorandum reiterated that the
rights of sovereign tribal governments must be fully respected. 59 FR
22,951 (May 4, 1994).
The EPA's tribal policies commit to certain principles, including
the following:
EPA recognizes tribal Governments as sovereign entities with
primary authority and responsibility for the reservation populace.
Accordingly, EPA will work directly with tribal Governments as the
independent authority for reservation affairs, and not as the
political subdivisions of States or other governmental units.
* * * * *
In keeping with the principal of Indian self-government, the
Agency will view tribal Governments as the appropriate non-Federal
parties for making decisions and carrying out program
responsibilities affecting Indian reservations, their environments,
and the health and welfare of the reservation populace. Just as
EPA's deliberations and activities have traditionally involved
interests and/or participation of State Governments, EPA will look
directly to tribal Governments to play this lead role for matters
affecting reservation environments.
November 8, 1984 ``EPA Policy for the Administration of
Environmental Programs on Indian Reservations''; Policy Reaffirmed by
Administrator Carol M. Browner in a Memorandum issued on March 14,
1994; see also Washington Department of Ecology, 752 F.2d at 1471-72 &
n. 5.
The United States also has a unique fiduciary relationship with
Tribes, and EPA must consider tribal interests in its actions. Nance v.
EPA, 645 F.2d 701, 710 (9th Cir.), cert. denied, Crow Tribe of Indians
v. EPA, 454 U.S. 1081 (1981).
The EPA provides federal financial assistance and technical
assistance to Tribes to support assessment and protection of
reservation environments including air quality. Section 301(d)(4) of
the Act expressly provides for EPA administration of Act programs where
it is inappropriate or infeasible for Tribes. EPA has described its
efforts and plans to protect reservation air quality. The EPA will fill
gaps in air quality protection in the interim period before tribal Act
programs are approved, as necessary to ensure that reservation air
quality is adequately protected. See 59 FR 43960-61. The EPA will issue
proposed rules within the next few months that will provide for EPA
implementation of title V permit programs where Tribes lack approved
programs.
Even where an environmental statute did not directly address
management on reservations and Tribes themselves had not assumed
authority for program management, the reviewing court upheld EPA's
decision declining to approve a State program's application to Indian
country and concluded:
[T]he tribal interest in managing the reservation environment
and the federal policy of encouraging tribes to assume or at least
share in management responsibility are controlling.
* * * * *
It is enough that EPA remains free to carry out its policy of
encouraging tribal self-government by consulting with the tribes
over matters of hazardous waste management policy, such as the
siting of waste disposal. * * * The `backdrop' of tribal
sovereignty, in light of federal policies encouraging Indian self-
government, consequently supports EPA's interpretation of RCRA.
Washington Dept. of Ecology, 752 F.2d at 1427 (citation omitted).
Further, the State has failed to identify any compelling State
interest that would justify broad assertion of State authority
throughout Indian country. At this time, EPA is not aware of any
facility within the exterior boundaries of an American Indian
reservation in the State of Wisconsin that requires a title V operating
permit. It is possible but entirely speculative that some future title
V reservation sources may be located near State boundaries. As
indicated, EPA has issued proposed rules that would authorize Tribes to
administer EPA-approved title V programs and, in the interim, EPA is
developing regulations that would authorize EPA to issue title V
permits for affected sources where Tribes lack approved programs. In
addition, the Act provides several mechanisms to address the potential
transport of pollution off-reservation. See, e.g., 59 FR 43964;
sections 110(a)(2)(D) and 126 of the Act; section 164(e) of the Act;
section 505 of the Act.
Based on the Clean Air Act and Federal Indian law and policies, EPA
concludes that WDNR has not adequately supported the application of its
title V program to reservations generally or to fee lands within
reservation boundaries. See also 53 FR 43080 (Oct. 25, 1988) (EPA's
decision declining to approve Washington's request to administer the
Safe Drinking Water Act's Underground Injection Control Program to
Indian lands).
Finally, EPA's decision to decline to approve application of the
State's program to lands within the exterior boundaries of reservations
of federally recognized Indian Tribes based on the limited information
submitted by the State and the special issues and considerations
associated with tribal lands is within the Agency's discretion. See Act
section 502(d)(1) (EPA ``may'' approve a [state title V] program) & Act
section 502(g) (EPA ``may'' by rule grant the [state title V] program
interim approval); compare Alabama Power Co. v. EPA, No. 94-1170, slip
op. at 11 (D.C. Cir. Nov. 29, 1994) (``the AEL provision's mandatory
language * * * `[t]he permitting authority shall * * * authorize an
emission limitation less stringent than the applicable limitation * *
*.' (emphasis added) * * *''); see also 59 FR 43982 (``[a] State Clean
Air Act program submittal shall not be disapproved because of failure
to address air resources within the exterior boundaries of an Indian
Reservation or other areas within the jurisdiction of an Indian
Tribe'') (proposed 40 CFR 49.10).
Comment: ``[T]he proposed interim approval discusses both Indian
reservations and tribal lands, with no clear distinction between the
two. On page 4 of its proposed interim approval, EPA states: `* * * the
proposed interim approval of Wisconsin's operating permits program will
not extend to lands within the exterior boundaries of any Indian
reservation in the State of Wisconsin.' However, it is our
understanding that Indians may own lands outside of a reservation which
may still be considered `tribal lands'. Certain lands may be simply
owned by tribal members, while other lands may be considered `trust
lands' (i.e. after approval by the U.S. Department of the Interior). We
are uncertain what EPA's position is as to whether State jurisdiction
extends to various lands owned by Indians, but located outside of
reservation boundaries. Again, this determination should likely be made
on a case-by-case basis, as the State of Wisconsin may have regulatory
jurisdiction on these lands. We are concerned that if the state does
not have jurisdiction over these lands, a `checkerboard' pattern of
regulation will develop, with no clear delineation of who has
jurisdiction over air pollution sources. This can result in a non-
uniform, confusing and ineffective air pollution regulatory system. We
believe that this issue should be clarified in EPA's final interim
approval. Our position is that the State of Wisconsin should be allowed
to exercise its jurisdiction on these lands, which are
[[Page 12132]] located outside of reservation boundaries.''
Response: As indicated, EPA is currently not aware of any title V
source located on lands over which an Indian tribe has jurisdiction.
Further, the State's comment does not identify any specific affected
off-reservation sources. Without more information about specific
circumstances, EPA cannot address the State's specific concern. In
general, based on the information currently submitted to EPA by the
State and largely for the reasons outlined in the preceding response,
EPA's approval of Wisconsin's program would not extend to any sources
located within Indian country, as defined at 18 U.S.C. 1151. The EPA
will work with both the State and an affected tribal governments to
evaluate any specific questions that are in fact presented.
2. Fee Adequacy
WDNR commented that the State's title V fees were developed to
provide for adequate implementation of the minimum program requirements
as they existed when the fees were developed. However, WDNR is
concerned that these fees may not be sufficient to cover any extra
requirements that may be added to the program, especially the section
114 enhanced compliance monitoring requirements and the section 112(r)
emergency release requirements. WDNR stated that EPA must take into
account the limited resources that States will have under the
presumptive minimum fees established for the title V program in
promulgating these regulations.
Although title V establishes a presumptive minimum cost model, it
also requires that a State's fee schedule result in the collection and
retention of revenues sufficient to cover permit program costs. See 40
CFR 70.9 as well as the guidance memorandum issued on August 4, 1993
entitled, ``Reissuance of Guidance on Agency Review of State Fee
Schedules for Operating Permits Programs Under Title V,'' signed by
John Seitz, Director of the Office of Air Quality Planning and
Standards. This adequacy requirement ensures that title V programs are
not and will not be underfunded, and obligates the States to update and
adjust their fee schedules if they are not sufficient to fund the
program costs. It may therefore be appropriate to adjust fees for
program expenditure increases, such as the implementation of new
applicable requirements for enhanced monitoring and emergency releases.
3. Acid Rain Fees
The EPA proposed that the approval of Wisconsin's fee schedule does
not extend to Wisconsin's fee provisions for the collection of
emissions fees from utilities with affected units under section 404 of
the Act (s.144.399(2)(am), Wis. Stats., and s.NR 410.04(4), Wis. Adm.
Code). 40 CFR 70.9(b)(4) provides that, for 1995 through 1999, no fee
for purposes of title V shall be required to be paid with respect to
emissions from any affected unit under section 404 of the Act. One
commenter argued that the State fees are not directly charged on
emissions from Phase I affected units, and therefore EPA should not be
concerned about these fees, which would place Wisconsin's fee revenue
collection slightly above the presumptive minimum cost established in
part 70. Although the fees in question are not directly charged on
emissions from Phase I affected units, they are charged to other units
operated by a utility that owns or operates a Phase I affected source.
In addition, the fee amount is equivalent to what would have been
charged to the Phase I affected unit. In other words, the State program
charges emissions fees to utilities with Phase I units in an amount
equivalent to what would have been charged directly to the Phase I
units. Because of this equivalency, EPA has determined that these fees
cannot be considered title V fees.
4. Section 112(g) Implementation
The EPA received several comments regarding the proposed approval
of Wisconsin's preconstruction permitting program for the purpose of
implementing section 112(g) during the transition period between title
V approval and adoption of a State rule implementing EPA's section
112(g) regulations. Two commenters argued that Wisconsin should not,
and cannot, implement section 112(g) until: (1) EPA has promulgated a
section 112(g) regulation, and (2) the State has a section 112(g)
program in place. The commenters also argued that Wisconsin's
preconstruction review program cannot serve as a means to implement
section 112(g) because it was not designed for that purpose. One
commenter also asserted that such a regulatory program is
unconstitutional because the section 112(g) requirements are vague. In
addition to the above comments, WDNR also commented that EPA should
delay the implementation of section 112(g) until the Federal
regulations are promulgated. WDNR anticipates that the implementation
of section 112(g) without Federal regulations will be difficult and
time consuming. However, WDNR also commented that it will implement the
requirements of section 112(g) if a such a delay is not possible.
In its proposed interim approval of Wisconsin's part 70 program,
EPA proposed to approve Wisconsin's preconstruction review program for
the purpose of implementing section 112(g) during the transition period
before promulgation of a Federal rule implementing section 112(g). This
proposal was based in part on an interpretation of the Act that would
require sources to comply with section 112(g) beginning on the date of
approval of the title V program, regardless of whether EPA had
completed its section 112(g) rulemaking. The EPA has since revised this
interpretation of the Act in a Federal Register notice published on
February 14, 1995. 60 FR 8333. The revised interpretation postpones the
effective date of section 112(g) until after EPA has promulgated a rule
addressing that provision. The revised notice sets forth in detail the
rationale for the revised interpretation.
The section 112(g) interpretive notice explains that EPA is still
considering whether the effective date of section 112(g) should be
delayed beyond the date of promulgation of the Federal rule so as to
allow States time to adopt rules implementing the Federal rule, and
that EPA will provide for any such additional delay in the final
section 112(g) rulemaking. Unless and until EPA provides for such an
additional postponement of section 112(g), Wisconsin must be able to
implement section 112(g) during the transition period between
promulgation of the Federal section 112(g) rule and adoption of
implementing State regulations.
For this reason, EPA is finalizing its approval of Wisconsin's
preconstruction review program. This approval clarifies that the
preconstruction review program is available as a mechanism to implement
section 112(g) during the transition period between promulgation of the
section 112(g) rule and adoption by Wisconsin of rules established to
implement section 112(g). However, since the approval is for the single
purpose of providing a mechanism to implement section 112(g) during the
transition period, the approval itself will be without effect if EPA
decides in the final section 112(g) rule that sources are not subject
to the requirements of the rule until State regulations are adopted.
Further, EPA is limiting the duration of this approval to 18 months
following promulgation by EPA of the section 112(g) rule.
The EPA believes that, although Wisconsin currently lacks a program
designed specifically to implement section 112(g), Wisconsin's
[[Page 12133]] preconstruction review program will serve as an adequate
implementation vehicle during a transition period because it will allow
Wisconsin to select control measures that would meet MACT, as defined
in section 112, and incorporate these measures into a federally
enforceable preconstruction permit.
Another consequence of the fact that Wisconsin lacks a program
designed specifically to implement section 112(g) is that the
applicability criteria found in its preconstruction review program may
differ from those in the section 112(g) rule. However, whether a
particular source change qualifies as a modification, construction, or
reconstruction for section 112(g) purposes during any transition period
will be determined according to the final section 112(g) rule. The EPA
would expect Wisconsin to be able to issue a preconstruction permit
containing a case-by-case determination of MACT where necessary for
purposes of section 112(g) even if review under its own preconstruction
review program would not be triggered.
WDNR also commented that it will implement section 112(g) using its
preconstruction review program, as EPA proposed on October 19, 1994. In
addition, WDNR agreed that allowing Wisconsin 18 months from
promulgation of Federal section 112(g) regulations to adopt its own
regulations is sufficient.
One commenter incorporated by reference its comments on the
proposed section 112(g) rule, and stated that the proposed rule has
technical, legal, and constitutional defects that disqualify it as a
valid or workable approach to section 112(g) implementation. The EPA
believes the appropriate forum for pursuing objections to the legal
validity of Federal regulations is by: (1) Submitting comments on a
proposed rulemaking during the public comment period for that
particular rulemaking, or (2) petitioning for review of the promulgated
rule in the D.C. Circuit Court of Appeals. If the commenter has
concerns with the final section 112(g) rule, the commenter will have
the opportunity to pursue such action once the section 112(g) rule is
promulgated.
Two commenters assumed that EPA would delegate the section 112(g)
requirements to the State. The EPA wishes to clarify that the
implementation of section 112(g) by the State, including case-by-case
MACT determinations, is a requirement for approval of a State title V
program. In other words, approval of the title V operating permits
program confers on the State responsibility to implement section
112(g). Since the requirement to implement section 112(g) lies with the
State in the first instance, there is no need for a delegation action
apart from the title V program approval mechanism, except where the
State seeks approval of a ``no less stringent'' program under 40 CFR
part 63 subpart E. The EPA's approval of Wisconsin's program for
delegation of section 112 standards as promulgated does not affect this
responsibility to implement section 112(g).
5. Acid Rain Commitment
WDNR commented that there has been a delay in finalizing the
State's acid rain regulations, and stated that Wisconsin will be
requesting a short extension of its January 1, 1995 commitment date for
submitting the acid rain program requirements. On December 19, 1994,
EPA received WDNR's request to extend the acid rain submittal
requirement to May 1, 1995. Because EPA does not expect this extension
to affect WDNR's ability to timely implement the Phase II acid rain
requirements, EPA approves WDNR's request.
6. Operational Flexibility Provisions
One commenter questioned EPA's authority to grant interim approval
to a State that did not include operational flexibility provisions for
``new'' and ``modified'' sources (as defined by Wisconsin's program).
The Act provides that EPA may grant interim approval to a program that
substantially meets the requirements of title V, but is not fully
approvable. The key term, ``substantially meets'', was not expressly
defined in the statute. The part 70 regulations further address this
issue, but in fairly broad terms, specifying eleven core program
elements, including operational flexibility. Further guidance was
issued in a memorandum on August 2, 1993 entitled, ``Interim Title V
Program Approvals,'' signed by John Seitz, Director of the Office of
Air Quality Planning and Standards.
40 CFR 70.4(d)(3)(viii) provides that the State program must allow
certain changes to be made without requiring a permit revision if the
changes are not title I modifications and do not exceed the emissions
allowable under the permit, as provided in 40 CFR 70.4(b)(12). The
preamble to the part 70 rulemaking further indicates that interim
programs need to include only the ability to generally implement this
section. See 57 FR 32271.
Each of the three approaches to operational flexibility set forth
in 40 CFR 70.4(b)(12) describes an approach to implementing the
language of the statutory mandate for operational flexibility. As
explained in the August 2, 1993 memorandum, EPA interprets the
regulation and preamble to mean that a State program would be eligible
for interim approval if it provides for the implementation of any one
of these three approaches for providing operational flexibility.
40 CFR 70.4(b)(12)(i) provides for section 502(b)(10) changes.
Wisconsin's program includes this provision for ``existing'' sources,
but not for ``new'' or ``modified'' sources. 40 CFR 70.4(b)(12)(ii)
provides for an optional SIP trading program. Wisconsin's program does
not currently include this provision, as no SIP trading program exists.
40 CFR 70.4(b)(12)(iii) provides for trading in the permitted facility
for the purpose of complying with a federally enforceable emissions cap
that is established in the permit independent of otherwise applicable
requirements. Wisconsin's program includes this provision in s.NR
407.025(2)(a), Wis Adm. Code.
Wisconsin's program partially includes the first operational
flexibility provision, and fully includes the third provision.
Therefore, Wisconsin's operational flexibility provisions substantially
meet the requirements of part 70, and the program is eligible for
interim approval. However, EPA is clarifying in the final interim
approval of Wisconsin's program that the operational flexibility
deficiency is specific to the requirements of 40 CFR 70.4(b)(12)(i).
7. Denial of Permit Renewal Applications
Two commenters disagreed with EPA's proposal that, as a condition
for full approval, Wisconsin's program must provide the authority to
deny a renewal application for a source that is not in compliance. The
commenters stated that part 70 does not mandate denial in such a
circumstance, and Wisconsin should be able to retain its discretion to
either approve or deny a permit renewal application for a source that
is not in compliance.
The EPA agrees with the commenters that the denial of a permit
renewal application for a source that is not in compliance is a
discretionary action. As explained in the proposal, however,
Wisconsin's program is lacking the underlying authority to deny a
renewal application for a source that is not in compliance. As a
condition for full approval, Wisconsin's program must include the
provision that any permit noncompliance is grounds for denial of a
permit renewal application. This [[Page 12134]] should not be
interpreted to mean that Wisconsin has no discretion in determining its
action on individual permit renewal applications for noncomplying
sources.
8. Reopenings for Cause
Three commenters disagreed with EPA's proposal that, as a condition
for full approval, Wisconsin's program must be revised to require
permits to be reopened for cause under certain circumstances. Some
commenters noted that the State reopening provisions are structured
differently than the part 70 reopening provisions. The EPA proposed
that reopening permits for cause must be mandatory for the following
State provisions: ss.NR 407.14(1) (b), (c), (d), and (h), Wis. Adm.
Code.
One commenter specifically opposed the mandatory reopening
requirement for s.NR 407.14(1)(b), which provides for reopening to
assure compliance with applicable requirements. This provision is
equivalent to 40 CFR 70.7(f)(1)(iv), which requires reopening if the
permitting authority determines that the permit must be revised to
assure compliance with applicable requirements. Therefore, s.NR
407.14(1)(b) must be revised to require reopenings to assure compliance
with applicable requirements. In addition, the same commenter
referenced 40 CFR 70.7(f)(1)(i) requirements in the discussion of the
State's s.NR 407.14(1)(b) requirements. The Federal provisions in (i)
do not preclude the requirements in (iv).
The second provision, s.NR 407.14(1)(c), provides for reopening
when there is a change in any applicable requirement, a new applicable
requirement, or an additional applicable requirement. This State
provision includes the provisions of 40 CFR 70.7(f)(1)(i), which
requires reopening of a permit with a remaining term of 3 or more years
when additional applicable requirements become applicable. This State
provision also includes the provisions of 40 CFR 70.7(f)(1)(ii), which
requires reopening when additional requirements become applicable to an
affected source under the acid rain program. Therefore, s.NR
407.14(1)(c) must be revised to require reopenings, in accordance with
the 3 year requirement under 40 CFR 70.7(f)(1)(i), or the acid rain
requirements under 40 CFR 70.7(f)(1)(ii), as applicable. The EPA is
clarifying in the final interim approval of Wisconsin's program that
s.NR 407.14(1)(c) must be mandatory only to the extent required by 40
CFR 70.7(f)(1).
The third provision, s.NR 407.14(1)(d), provides for reopening when
there is a change in any applicable emission limitation, ambient air
quality standard, or ambient air quality increment that requires either
a temporary or permanent reduction or elimination of the permitted
emission. One commenter specifically opposed the mandatory reopening
requirement for this State provision, stating that 40 CFR 70.7(f)(1)
does not establish any requirement that a permit be reopened in
response to a change in an applicable emission limitation or an air
quality increment. The EPA disagrees with this comment, as the
provisions outlined in s.NR 407.14(1)(d) include additional applicable
requirements that a source may be subject to. Therefore, s.NR
407.14(1)(d) must be revised to require reopenings, in accordance with
the 3 year requirement under 40 CFR 70.7(f)(1)(i), or the acid rain
requirements under 40 CFR 70.7(f)(1)(ii), as applicable. However, EPA
is clarifying in the final interim approval of Wisconsin's program that
s.NR 407.14(1)(d) must be mandatory only to the extent required by 40
CFR 70.7(f)(1).
The fourth provision, s.NR 407.14(1)(h), provides for reopening
when a permit contains a material mistake or inaccurate or unclear
statements. Two commenters specifically opposed the mandatory reopening
requirement for this State provision, stating that the Wisconsin
provision is broader than the requirements of 40 CFR 70.7(f)(1)(iii).
The EPA partially agrees with the commenters. 40 CFR 70.7(f)(1)(iii)
requires permit reopening when the permitting authority determines that
the permit contains a material mistake or that inaccurate statements
were made in establishing the emissions standards or other terms or
conditions of the permit. The Wisconsin provision is broader because it
includes ``unclear statements'' in a permit, in addition to material
mistakes and inaccurate statements. The Wisconsin provision also does
not limit the ``inaccurate statements'' provision to emissions
standards or other terms or conditions of the permit. Therefore, EPA is
clarifying in the final interim approval of Wisconsin's program that
s.NR 407.14(1)(h) must be mandatory only to the extent required by 40
CFR 70.7(f)(1).
One commenter also objected to any revision that would require WDNR
to mandatorily reopen any operating permit issued to a non-part 70
source. The EPA's interim approval of Wisconsin's title V operating
permits program only applies to the State's title V program, and does
not require the State to revise its operating permits program for non-
part 70 sources.
9. Wisconsin Permitting Exemptions
Four commenters expressed concerns with EPA's proposal that, as a
condition for full approval, some of Wisconsin's permitting exemptions
must be revised to ensure that no part 70 sources are exempted from the
requirement to obtain an operating permit.
All four commenters stated that the exemptions and associated
recordkeeping and reporting requirements adequately limit potential to
emit for the exempted sources. The EPA disagrees that the exemptions in
question adequately limit potential to emit. As explained in the
proposal, these Wisconsin permitting exemptions determine applicability
based in part or totally on these sources' actual emissions or
throughput, and the State's recordkeeping requirements do not provide a
federally enforceable mechanism for limiting these sources' potential
emissions to the actual emissions levels or throughput established in
the exemptions. The recordkeeping provisions do not include specific
emissions accounting requirements, and therefore do not ensure that the
recordkeeping will be adequate to determine sources' actual emissions.
In addition, the exemptions do not provide for any reporting
requirements. Finally, mechanisms to limit potential to emit must be
based on production or operation limits; emission rates do not
adequately limit a source's potential to emit.
WDNR commented that, while it disagrees with EPA's concerns, WDNR
commits to working with EPA to develop acceptable and practical
mechanisms to deal with these source categories. The EPA agrees to work
with WDNR to resolve this interim approval issue, and believes that it
is important to develop mechanisms to avoid flooding the title V
program with thousands of small sources that will never emit at part 70
applicability levels.
One commenter specifically objected to EPA's concern with ss.NR
407.03(1) (g) and (h). The commenter appears to be of the opinion that
these exemptions are based on potential to emit because both exemptions
include sources that ``will emit not more than 1,666 pounds of organic
compounds per month''. The EPA disagrees with this interpretation. The
Wisconsin provision provides an exemption for ``* * * operations which
emit or will emit not more than 1,666 pounds of organic chemicals per
month''. While this provision exempts [[Page 12135]] sources that
``will emit'' at this level, it also exempts sources that ``emit'' at
this level. A source that has actual emissions of 1,666 pounds of
organic chemicals per month may have the potential to emit at greater
amounts, and therefore may be a part 70 source. In addition, the
commenter noted that these Wisconsin exemptions are based on emissions
measured prior to entering any emission control devices, while the
determination of a source's potential to emit may be calculated by
including air pollution control devices (if enforceable by the
Administrator). Regardless of this distinction, EPA does not believe
that the exemptions are based on potential to emit.
One commenter requested that the exemption in ss.NR 407.03(1)(t) be
maintained to the extent possible. This provision provides an exemption
for a combination of specified activities. The exemption is structured
differently than the other exemptions for which EPA is granting interim
approval, as it does not attempt to limit sources' potential to emit.
Instead, this exemption allows combinations of activities to be grouped
together, and certain combinations could result in emissions that would
exempt part 70 sources from the permit program. Therefore, Wisconsin
must revise this exemption to ensure that no part 70 sources are
exempted. The State will need to determine to what extent this
exemption can be retained and still ensure that no part 70 sources are
eligible for the exemption.
10. Source Category Limited Interim Approval
Two commenters were supportive of EPA's proposed source category
limited (SCL) interim approval; however, they were concerned that the
State's current determination that it will not need additional time to
issue initial permits would require those source categories to submit
permit applications before the State has fully developed the program
requirements for these sources. The EPA proposed SCL interim approval
for Wisconsin for two separate circumstances: for new and modified
sources that are not in compliance, and for sources belonging to the
source categories covered by the permitting exemptions in ss.NR
407.03(1) (d), (g), (h), (o), (s), (sm), and (t).
The deficiency in Wisconsin's program with respect to new and
modified sources that are not in compliance relates to the lack of
State authority to issue permits to such sources. However, the State
program does require these sources to submit permit applications in
accordance with the State application schedule. Therefore, these
sources are already covered by the State program, and are currently
required to submit applications.
The deficiency in Wisconsin's program with respect to the
permitting exemptions relates to the lack of State authority to require
permits for certain part 70 sources. Therefore, the State may currently
exempt some part 70 sources. Interim approval requires the State to
correct this deficiency and submit a corrected program to EPA within 18
months after the effective date of the interim approval. Once the State
corrects the deficiency, any part 70 sources which had been exempt will
be required to obtain an operating permit in accordance with the
requirements of the State program.
As stated in the proposal, Wisconsin has not requested additional
time for issuing initial operating permits because the State intends to
fix the SCL interim approval deficiencies in time to permit all sources
within the 3 year phase-in period. In addition, previously exempted
part 70 sources (if any exist) will be required to submit applications
within one year of the interim approval effective date. If Wisconsin
determines that it cannot meet these implementation requirements, SCL
interim approval does provide that the completion of the initial
permitting of the SCL sources could occur as late as 5 years after the
granting of SCL interim approval (the 3 year phase in period plus the 2
year interim approval). To obtain this extension, Wisconsin would have
to submit a request to EPA that includes compelling reasons why the
additional time is needed. For additional discussion of this issue,
including the specific requirements for a state's extension request,
refer to the August 2, 1993 memorandum entitled, ``Interim Title V
Program Approvals,'' signed by John Seitz, Director of the Office of
Air Quality Planning and Standards.
11. Proposed Part 70 Rules
One commenter submitted comments it had previously filed on the
proposed part 70 rule, and stated that it objected to interim approval
of Wisconsin's operating permits program for the same reasons it had
objected to the part 70 rule itself. The EPA believes the appropriate
forum for pursuing objections to the legal validity of the part 70 rule
is through a petition for review of the rule brought in the D.C.
Circuit Court of Appeals. The EPA notes that this commenter has filed
such a petition. However, unless and until the part 70 rule is revised,
EPA must evaluate programs according to the rule that is in effect.
12. Particulate Matter (PM) Issues
One commenter raised several issues regarding PM that were not
relevant to EPA's proposed interim approval of Wisconsin's operating
permits program. Therefore, EPA is not addressing these comments in the
final action on Wisconsin's program.
B. Final Action
The EPA is promulgating interim approval of the operating permits
program submitted by the State of Wisconsin on January 27, 1994. The
scope of Wisconsin's part 70 program approved in this notice applies to
all part 70 sources within Wisconsin, except for tribal lands in the
manner described previously in this notice. The State must make the
following changes to receive full approval:
1. Revise Wisconsin's operating permit program regulations to
provide for criminal fines against any person who knowingly makes any
false material statement, representation, or certification in a permit
application. This provision is required by 40 CFR 70.11(a)(3)(iii).
2. Revise the following legislation and regulations to provide an
application shield for ``new'' and ``modified sources'' (as defined by
ss.144.30(20s) and (20e), Wis. Stats.): s.144.391(1)(b), Wis. Stats.;
s.144.3925(7), Wis. Stats.; s.NR 407.06(2), Wis. Adm. Code; and s.NR
407.08, Wis. Adm. Code. Wisconsin's program does provide an application
shield for ``existing sources'' (as defined by s.144.30(13). 40 CFR
70.7(b) requires that the application shield must apply to all part 70
sources which meet the application shield requirements.
3. Revise the following legislation and regulation to provide for
operational flexibility, as required by 40 CFR 70.4(b)(12)(i), for
``new'' and ``modified sources'' (as defined by ss.144.30(20s) and
(20e), Wis. Stats.): s.144.391(4m), Wis. Stats.; and s.NR 407.025, Wis.
Adm. Code. Wisconsin's program does include this requirement for
``existing sources'' (as defined by s.144.30(13)). 40 CFR
70.4(b)(12)(i) is required to apply to all part 70 sources.
4. Revise the appropriate legislation and regulations to provide
the authority to deny a renewal application for a source that is not in
compliance. 40 CFR 70.6(a)(6)(i) requires that any permit noncompliance
is grounds for denial of a permit renewal application. Section NR
407.09(1)(f)1., Wis. Adm. Code, states that the authority to deny a
permit renewal application for noncompliance [[Page 12136]] is
contingent upon the requirements in s.144.3925(6), Wis. Stats., which
do not currently provide for a denial in such a circumstance. Appendix
P of Wisconsin's operating permits program submittal includes draft
statutory revisions that are intended to fix this deficiency. The draft
revisions propose to add this authority to s.144.396(3)(c), Wis. Stats.
Regardless of the statutory placement of this authority, s.NR
407.09(1)(f)1., Wis. Adm. Code, must be revised if necessary to
reference the correct statutory authority.
5. Revise ss.NR 407.14(1)(b), (c), (d), and (h), Wis. Adm. Code, to
provide that if the conditions specified in these provisions are met,
and the conditions meet the requirements of 40 CFR 70.7(f)(1), WDNR is
required to reopen a permit for cause. Under the State's current
provisions, reopening a permit under these circumstances is
discretionary. 40 CFR 70.7(f)(1) establishes the conditions under which
reopening a permit for cause is mandatory.
6. Revise s.NR 407.05, Wis. Adm. Code, to include the duty to
supplement or correct application provisions, as required under 40 CFR
70.5(b).
7. Revise s.144.3935(1)(a), Wis. Stats., to provide WDNR the
authority to issue operating permits to ``new'' and ``modified'' part
70 sources (as defined by ss.144.30(20s) and (20e), Wis. Stats.) that
are not in compliance. 40 CFR 70.3(a) requires that the permitting
agency must have authority to issue permits to all part 70 sources.
Revise s.NR 407.05(4)(h)2.c., Wis. Adm. Code, to provide that
compliance plan application requirements for noncomplying new and
modified sources include a narrative description of how the sources
will achieve compliance. 40 CFR 70.5(c)(8)(ii)(C) requires this
compliance plan application requirement for all part 70 sources that
are not in compliance.
Revise s.NR 407.05(4)(h)3.c., Wis. Adm. Code, to provide for
schedule of compliance application requirements for noncomplying new
and modified sources. 40 CFR 70.5(c)(8)(iii)(C) requires schedules of
compliance in all noncomplying part 70 source applications.
Revise s.NR 407.05(4)(h)4., Wis. Adm. Code, to provide for progress
report application requirements for noncomplying new and modified
sources. 40 CFR 70.5(c)(8)(iv) requires progress report schedules in
all noncomplying part 70 source applications.
Revise s.NR 407.09(4)(b), Wis. Adm. Code, to provide for schedule
of compliance and progress report requirements in permits issued to
noncomplying new and modified sources. 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.
8. Revise ss.NR 407.03(1) (d), (g), (h), (o), (s), (sm), and (t),
Wis. Adm. Code, to ensure that no part 70 sources are exempted from the
requirement to obtain an operating permit, as provided under 40 CFR
70.3. Section NR 407.03(1)(t) potentially exempts certain part 70
sources, and ss.NR 407.03(1) (d), (g), (h), (o), (s), and (sm) do not
provide for adequate procedures to limit these sources' potential to
emit. The 40 CFR 70.2 definition of ``major source'' considers the
potential to emit of a source in determining major source status. The
Wisconsin permitting exemptions listed above determine applicability
based in part or totally on these sources' actual emissions or
throughput, and the provisions in s.NR 407.03(4) do not provide a
federally enforceable mechanism for limiting these sources' potential
emissions to the actual emissions levels or throughput established in
the exemptions.
To be eligible for interim approval, 40 CFR 70.4(d)(3)(ii) requires
that a program provide for adequate authority to issue permits
containing all applicable requirements to all title V sources. Due to
the deficiencies outlined in 7. and 8. above, EPA is granting source
category limited interim approval to Wisconsin's operating permit
program. See 57 FR 32270 (July 21, 1992). Therefore, EPA is not
including ``new'' and ``modified'' part 70 sources that are not in
compliance (as defined by Wisconsin's operating permits program), and
part 70 sources covered by Chapter NR 407.03(1) (d), (g), (h), (o),
(s), (sm), and (t) as part of the interim approval of Wisconsin's
program. The exclusion of these source categories from approval,
however, does not affect Wisconsin's obligation to fix these
deficiencies in order to be eligible for full approval.
This interim approval, which may not be renewed, extends until
April 7, 1997. During this interim approval period, Wisconsin is
protected from sanctions, and EPA is not obligated to promulgate,
administer and enforce a Federal operating permits program for the
State. Permits issued under a program with interim approval have full
standing with respect to part 70, and the 1-year time period for
submittal of permit applications by subject sources begins upon the
effective date of this interim approval, as does the 3-year time period
for processing the initial permit applications.
If the State of Wisconsin fails to submit a complete corrective
program for full approval by October 7, 1996, EPA will start an 18-
month clock for mandatory sanctions. If the State of Wisconsin then
fails to submit a corrective program that EPA finds complete before the
expiration of that 18-month period, EPA will be required to apply one
of the sanctions in section 179(b) of the Act, which will remain in
effect until EPA determines that Wisconsin has corrected the deficiency
by submitting a complete corrective program. Moreover, if the
Administrator finds a lack of good faith on the part of the State of
Wisconsin, both sanctions under section 179(b) will apply after the
expiration of the 18-month period until the Administrator determines
that Wisconsin has come into compliance. In any case, if, 6 months
after application of the first sanction, Wisconsin still has not
submitted a corrective program that EPA has found complete, a second
sanction will be required.
If EPA disapproves the State of Wisconsin's complete corrective
program, EPA will be required to apply one of the section 179(b)
sanctions on the date 18 months after the effective date of the
disapproval, unless prior to that date Wisconsin has submitted a
revised program and EPA has determined that it corrected the
deficiencies that prompted the disapproval. Moreover, if the
Administrator finds a lack of good faith on the part of Wisconsin, both
sanctions under section 179(b) shall apply after the expiration of the
18-month period until the Administrator determines that the State has
come into compliance. In all cases, if, 6 months after EPA applies the
first sanction, Wisconsin has not submitted a revised program that EPA
has determined corrects the deficiencies, a second sanction is
required.
In addition, discretionary sanctions may be applied where warranted
any time after the expiration of an interim approval period if the
State has not timely submitted a complete corrective program or EPA has
disapproved its submitted corrective program. Moreover, if EPA has not
granted full approval to Wisconsin's program by the expiration of this
interim approval and that expiration occurs after November 15, 1995,
EPA must promulgate, administer and enforce a Federal permits program
for the State of Wisconsin upon expiration of interim approval.
Requirements for approval, specified in 40 CFR 70.4(b), encompass
section [[Page 12137]] 112(l)(5) requirements for approval of a program
for delegation of section 112 standards as promulgated by EPA as they
apply to part 70 sources. Section 112(l)(5) requires that the State's
program contain adequate authorities, adequate resources for
implementation, and an expeditious compliance schedule, which are also
requirements under part 70. Therefore, EPA is also promulgating
approval under section 112(l)(5) and 40 CFR 63.91 of the State's
program for receiving delegation of section 112 standards that are
unchanged from Federal standards as promulgated. This program for
delegations only applies to sources covered by the part 70 program.
The EPA is also promulgating approval of Wisconsin's
preconstruction permitting program found in Chapters 406 and 408, Wis.
Adm. Code, under the authority of title V and part 70 solely for the
purpose of implementing section 112(g) to the extent necessary during
the transition period between promulgation of the Federal section
112(g) rule and adoption of any necessary State rules to implement
EPA's section 112(g) regulations. However, since the approval is for
the single purpose of providing a mechanism to implement section 112(g)
during the transition period, the approval itself will be without
effect if EPA decides in the final section 112(g) rule that sources are
not subject to the requirements of the rule until State regulations are
adopted. Although section 112(l) generally provides authority for
approval of State air programs to implement section 112(g), title V and
section 112(g) provide authority for this limited approval because of
the direct linkage between the implementation of section 112(g) and
title V. The scope of this approval is narrowly limited to section
112(g) and does not confer or imply approval for purposes of any other
provision under the Act, for example, section 110. The duration of this
approval is limited to 18 months following promulgation by EPA of
section 112(g) regulations, to provide Wisconsin adequate time for the
State to adopt regulations consistent with the Federal requirements.
III. Administrative Requirements
A. Official File
Copies of the State's submittal and other information relied upon
for the final interim approval, including public comments on the
proposal received and reviewed by EPA, are maintained in the official
file at the EPA Regional Office. The file is an organized and complete
record of all the information submitted to, or otherwise considered by,
EPA in the development of this final interim approval. The official
file is available for public inspection at the location listed under
the ADDRESSES section of this document.
B. Executive Order 12866
The Office of Management and Budget has exempted this action from
Executive Order 12866 review.
C. Regulatory Flexibility Act
The EPA's actions under section 502 of the Act do not create any
new requirements, but simply address operating permits programs
submitted to satisfy the requirements of 40 CFR part 70. Because this
action does not impose any new requirements, it does not have a
significant impact on a substantial number of small entities.
List of Subjects in 40 CFR 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: February 23, 1995.
Robert Springer,
Acting Regional Administrator.
Part 70, title 40 of the Code of Federal Regulations 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 adding the entry for
Wisconsin in alphabetical order to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * * * *
Wisconsin
(a) Department of Natural Resources: submitted on January 27,
1994; interim approval effective on April 5, 1995; interim approval
expires April 7, 1997.
(b) Reserved
* * * * *
[FR Doc. 95-5403 Filed 3-3-95; 8:45 am]
BILLING CODE 6560-50-P
