02-5311. Approval and Promulgation of Air Quality Implementation Plans; Wisconsin; Excess Volatile Organic Compound Emissions Fee Rule

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

The EPA is proposing to approve a rule that revises Wisconsin's State Implementation Plan (SIP) for ozone. The rule requires major stationary sources of volatile organic compounds (VOC) in the Milwaukee nonattainment area to pay a fee to the state if the area fails to attain the one-hour national ambient air quality standard for ozone by 2007. The fee must be paid beginning in 2008 and in each calendar year thereafter, until the area is redesignated to attainment of the one-hour ozone standard. Wisconsin submitted this rule on December 22, 2000, as part of the state's demonstration of attainment for the one-hour ozone standard.

DATES:

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

ADDRESSES:

Send written comments to: Carlton T. Nash, Chief, Regulation Development Section, Air Programs Branch (AR-18J), United States Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.

Copies of the proposed SIP revision and EPA's analysis are available for inspection at the following location: United States Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. (Please telephone Kathleen D'Agostino at [phone] before visiting the Region 5 Office.)

FOR FURTHER INFORMATION CONTACT:

Kathleen D'Agostino, Regulation Development Section (AR-18J), Air Programs Branch, Air and Radiation Division, United States Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, [phone].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What Action Is EPA Taking?

II. Who Has To Pay These Fees?

III. How Are the Fees Calculated?

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

V. What Administrative Requirements Did EPA Consider?

I. What Action Is EPA Taking?

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

The EPA is proposing to approve this rule because it is consistent with the requirements of the Clean Air Act (Act).

II. Who Has To Pay These Fees?

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

III. How Are the Fees Calculated?

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

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

Under sections 182(d)(3), (e), and 185 of the Act (the Act), states are required to adopt an excess emissions fee regulation for ozone nonattainment areas classified as severe or extreme. This regulation requires major stationary sources of VOC in the nonattainment area to pay a fee to the state if the area fails to attain the standard by the attainment date set forth in the Act. In Wisconsin, the Milwaukee nonattainment area is classified as severe.

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

V. What Administrative Requirements Did EPA Consider?

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This proposed action merely proposes to approve state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain an unfunded mandate, nor does it significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This proposed rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely proposes to approve a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Act. This proposed rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTA), 15 U.S.C. 272 note, requires federal agencies to use technical standards that are developed or adopted by voluntary consensus to carry out policy objectives, so long as such standards are not inconsistent with applicable law or otherwise impracticable. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Act. Absent a prior existing requirement for the state to use voluntary consensus standards, EPA has no authority to disapprove a SIP submission for failure to use such standards, and it would thus be inconsistent with applicable law for EPA to use voluntary consensus standards in place of a SIP submission that otherwise satisfies the provisions of the Act. Therefore, the requirements of section 12(d) of the NTTA do not apply.

As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this proposed rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order, and has determined that the rule's requirements do not constitute a taking. This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 52

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

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

Dated: February 15, 2002.

Bertram C. Frey,

Acting Regional Administrator, Region 5.