[Federal Register Volume 62, Number 62 (Tuesday, April 1, 1997)]
[Rules and Regulations]
[Pages 15402-15404]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-8183]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[WI73-01-7302(b); FRL-5691-7]
Approval of Section 112(l) Program of Delegation; Wisconsin
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is approving, through a ``direct final'' procedure,
Wisconsin's request for delegation of the Federal air toxics program
contained within 40 CFR Parts 61 and 63 pursuant to Section 112(l) of
the Clean Air Act (CAA) as amended. The State's requested mechanism of
delegation involves either the delegation of all existing and future
Section 112 standards as federally promulgated, for promulgation as
State standards (or rules), or to incorporate Federal standards into
State air pollution control permits, reserving the right to promulgate
the standards as a State rule at a later time. The actual delegation of
authority will occur through a memorandum of agreement (MOA) between
the Wisconsin Department of Natural Resources (WDNR) and EPA. This
request for approval of the mechanism of delegation encompasses all
sources not covered by the 40 CFR Part 70 operating permit program.
DATES: This action will become effective June 2, 1997, unless adverse
or critical comments not previously addressed by the State or EPA are
received by May 1, 1997. If the effective date is delayed, timely
notice will be published in the Federal Register.
ADDRESSES: Copies of the State's submittal and other supporting
information used in developing the approval are available for
inspection during normal business hours at the following location: EPA
Region 5, 77 West Jackson Boulevard, AR-18J, Chicago, Illinois, 60604.
Please contact Constantine Blathras at (312) 886-0671 to arrange a time
if inspection of the submittal is desired.
Effective immediately, all notifications, reports and other
correspondence required under Section 112 standards should be sent to
the State of Wisconsin rather than to the EPA, Region 5, in Chicago.
Affected sources should send this information to:
Bureau of Air Management, Wisconsin Department of Natural
Resources, 101 South Webster Street, P.O. Box 7921, Madison,
Wisconsin 53707.
FOR FURTHER INFORMATION CONTACT: Constantine Blathras, AR-18J, 77 West
Jackson Boulevard, Chicago, Illinois, 60604, (312) 886-0671.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
Section 112(l) of the CAA enables the EPA to approve State air
toxics programs or rules to operate in place of the Federal air toxics
program. The Federal air toxics program implements the requirements
found in Section 112 of the CAA pertaining to the regulation of
hazardous air pollutants. Approval of an air toxics program is granted
by the EPA if the Agency finds that the State program: (1) Is ``no less
stringent'' than the corresponding Federal program or rule, (2) the
State has adequate authority and resources to implement the program,
(3) the schedule for implementation and compliance is sufficiently
expeditious, and (4) the program is otherwise in compliance with
Federal guidance. Once approval is granted, the air toxics program can
be implemented and enforced by State or local agencies, as well as EPA.
Implementation by local agencies is dependent upon appropriate
subdelegation.
On December 22, 1995, Wisconsin submitted to EPA a request for
delegation of authority to implement and enforce the air toxics program
under Section 112 of the CAA. On March 28, 1996, EPA found the State's
submittal complete. In this document EPA is taking final action to
approve the program of delegation for Wisconsin.
II. Review of State Submittal
A. Program Summary
Requirements for approval, specified in Section 112(l)(5), require
that a State's program contain adequate authorities, adequate resources
for implementation, and an expeditious compliance schedule. These
requirements are also requirements for an adequate operating permits
program under Part 70 (40 CFR 70.4). EPA promulgated a final interim
approval under Part 70 of the State of Wisconsin's Operating Permit
Program on March 6, 1995 (60 FR 12128-12137). The notice included the
approval of a mechanism for delegation of all Section 112 standards for
sources subject to the Part 70 program. Sources subject to the Part 70
program are those sources that are operating pursuant to a Part 70
permit issued by the State or EPA. Sources not subject to the Part 70
program are those sources that are not required to obtain a Part 70
permit from either the State or EPA. This action supplements the Part
70 rulemaking in that Wisconsin will have the authority to implement
and enforce the Section 112 air toxics program regardless of a source's
Part 70 applicability. The Wisconsin program of delegation for sources
not subject to Part 70 will not include delegation of Section 112(r)
authority nor Section 112(i)(5) Early Reductions Program authority.
As stated above, this document constitutes EPA's approval of
Wisconsin's program of delegation of all existing and future air toxics
standards, except for Section 112(i)(5) and Section 112(r) standards as
they pertain to non-Part 70 sources. The Wisconsin program of
delegation will operate as follows: For a future Section 112 standard
for which WDNR intends to accept straight delegation, EPA will delegate
the authority to implement a Section 112 standard to the State by
letter unless WDNR notifies EPA differently within 45 days of EPA final
promulgation of the standard. WDNR will as expeditiously as practicable
and, if possible, within 18 months of the promulgation by EPA of a
Section 112 standard which is applicable to non-Part 70 sources, adopt
such standard into the State air quality regulations. Upon completion
of such regulatory action, WDNR will submit to EPA proof of adoption.
EPA shall respond with a letter delegating enforcement authority to the
WDNR with respect to the adopted standard.
For a source category for which Wiconsin wishes to adopt its own
rules, WDNR shall submit for approval to EPA State rules varying from
the Federal
[[Page 15403]]
standard, as expeditiously as practicable, and if possible within 18
months of promulgation by EPA of a Section 12 standard applicable to
non-Part 70 sources. EPA will review such rules for approvability
pursuant to Section 112(l) and will rulemake on them.
Wisconsin will assume responsibility for the timely implementation
and enforcement required by the standard, as well as any further
activities agreed to by WDNR and EPA. However, EPA at all times retains
its authority to enforce all provisions of Section 112 standards and
requirements. Further, until WDNR obtains the authority necessary to
enforce Section 112 standards, EPA shall initiate enforcement action
when enforcement is in the best interest of the State, the general
public, or EPA, or when delayed enforcement would impose an undue level
of risk on the general public and/or the environment.
Some activities necessary for effective implementation of the
standard include receipt of initial notifications, recordkeeping,
reporting and generally assuring that sources subject to the standard
are aware of its existence. When deemed appropriate, WDNR will utilize
the resources of its Small Business Assistance Program to assist in
general program implementation. The details of this delegation
mechanism are set forth in a memorandum of agreement between EPA and
WDNR, copies of which are located in the docket associated with this
rulemaking.
B. Criteria for Approval
On November 26, 1993, EPA promulgated regulations to provide
guidance relating to the approval of State programs under Section
112(l) of the CAA, (40 FR 62262). That rulemaking outlined the
requirements of approval with respect to various delegation options.
The requirements for approval of a program to implement and enforce
Federal Section 112 rules as promulgated without changes are found at
40 CFR 63.91. The specific elements required for approval in Section
63.91 were promulgated to address the procedures required for approval
pursuant to Section 112(l)(5) of the CAA. Any request for approval must
meet all Section 112(l) approval criteria, as well as all approval
criteria of Section 63.91. A more detailed analysis of the State's
submittal pursuant to Section 63.91 is contained in the Technical
Support Document included in the official file of this rulemaking.
Under Section 112(l) of the CAA, approval of a State program is
granted by the EPA if the Agency finds that it: (1) is ``no less
stringent'' than the corresponding Federal program, (2) that the State
has adequate authority and resources to implement the program, (3) the
schedule for implementation and compliance is sufficiently expeditious,
and (4) the program is otherwise in compliance with Federal guidance.
C. Analysis
EPA is approving Wisconsin's `mechanism of delegation' because the
State's submittal meets all requirements necessary for approval under
Section 112(l). The first requirement is that the program be no less
stringent than the Federal program. The Wisconsin program is no less
stringent than the corresponding Federal program or rule because the
State has requested either (1) delegation of standards unchanged from
the Federal standards and adopting such standards into the State air
quality regulations, or (2) that WDNR shall submit for approval to EPA,
State rules varying from the Federal standard. EPA will review such
rules for approvability pursuant to Section 112(l) and will rulemake on
them.
Second, the State has shown that it has adequate authority and
resources to implement the program. Wisconsin's State Statutes
authorize the WDNR to issue construction and operating permits to Part
70 and non-Part 70 sources of regulated pollutants to assure compliance
with all applicable requirements of the CAA. The authority to issue
permits includes the authority to incorporate permit conditions that
implement Federal Section 112 standards. Furthermore, Wisconsin has the
authority to implement each Section 112 regulation, emission standard
or requirement (regardless of Part 70 applicability), perform
inspections, request compliance information, incorporate requirements
into permits, and bring civil and criminal enforcement actions to
recover penalties and fines. Finally, Wisconsin has the authority to
enforce each Section 112 regulation, emission standard or requirement
applicable to non-Part 70 sources upon incorporation into the State
code of regulations. WDNR will enforce Section 112 standards applicable
to Part 70 sources by including such Section 112 standards in State
operating permits when they are issued or updated. Adequate resources
will be obtained through Section 105 grant monies awarded to States by
EPA and through any monies from the State's Title V program that can be
used to fund acceptable Title V activities with respect to these non-
Part 70 sources.
Third, upon promulgation of a standard, Wisconsin will immediately
begin activities necessary for timely implementation of the standard.
These activities will involve identifying sources subject to the
applicable requirement and notifying these sources of the applicable
requirement. Such schedule is sufficiently expeditious for approval.
Fourth, nothing in the Wisconsin program for delegation is contrary
to Federal guidance.
D. Determinations
In approving this delegation, EPA expects that the State will
obtain concurrence from EPA on any matter involving the interpretation
of Section 112 of the Clean Air Act or 40 CFR Part 63 to the extent
that implementation, administration, or enforcement of these sections
have not been covered by EPA determinations or guidance.
III. Final Action
The EPA is promulgating final approval of the December 22, 1995,
request by the State of Wisconsin for delegation of Section 112
standards because the request meets all requirements of 40 CFR 63.91
and Section 112(l) of the CAA. Upon the effective date of this
document, all existing section 112 standards which have been adopted
unchanged in to the State rules are automatically delegated to the
State of Wisconsin. Future delegation of the Section 112 standards to
the State will occur according to the procedures outlined in the MOA
upon EPA's promulgation of the standard.
Effective immediately, all notifications, reports and other
correspondence required under Section 112 standards should be sent to
the State of Wisconsin rather than to the EPA, Region 5, in Chicago.
Affected sources should send this information to: Bureau of Air
Management, Wisconsin Department of Natural Resources, 101 South
Webster Street, P.O. Box 7921, Madison, Wisconsin 53707.
EPA is publishing this action without prior proposal because EPA
views this action as a noncontroversial revision and anticipates no
adverse comments. However, the rulemaking will not be deemed final if
timely unaddressed adverse or critical comments are filed. The ``direct
final'' approval shall be effective on June 2, 1997, unless EPA
receives such adverse or critical comments by May 1, 1997. EPA is now
soliciting public comments on this action. Any parties interested in
commenting on this action should do so at this time. In the proposed
rules section of this Federal Register, EPA is publishing a separate
document which constitutes a ``proposed approval'' of the requested
delegation. If EPA receives
[[Page 15404]]
timely comments adverse to or critical of the approval discussed above,
which have not been addressed by the State or EPA, EPA will publish a
Federal Register document which withdraws this final action. All public
comments received will then be addressed in a subsequent rulemaking
document based on the proposed approval. EPA will not institute a
second comment period on this action. Any parties interested in
commenting on this action should do so at this time.
Copies of the State's submittal and other information relied upon
for the final approval are contained in a rulemaking file maintained 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 approval. The file is available for
public inspection at the location listed under the ADDRESSES section of
this document.
Nothing in this action should be construed as permitting, allowing
or establishing a precedent for any future request for revision to the
State's delegated air toxics program. EPA shall consider each request
for revision to the State's delegated air toxics program in light of
specific technical, economic, and environmental factors and in relation
to relevant statutory and regulatory requirements.
This action has been classified as a Table 3 action by the Regional
Administrator under the procedures published in the Federal Register on
January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993
memorandum from Michael H. Shapiro, Acting Assistant Administrator for
Air and Radiation. The Office of Management and Budget exempted this
regulatory action from Executive Order 12866 review.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
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, EPA may certify that the rule will not have a
significant 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.
Delegation of the Section 112 standards unchanged from the Federal
standard does not create any new requirements, but simply allows the
State to administer requirements that have been or will be separately
promulgated. Therefore, because this delegation approval does not
impose any new requirements, I certify that it does not have a
significant impact on any small entities affected.
Under Sections 202, 203 and 205 of the Unfunded Mandates Reform Act
of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 1995,
EPA must undertake various actions in association with proposed or
final rules that include a Federal mandate that may result in estimated
costs of $100 million or more to the private sector, or to State,
local, or tribal governments in the aggregate.
EPA has determined that the approval action promulgated today does
not constitute a Federal mandate that may result in estimated costs of
$100 million or more to either State, local, or tribal governments in
the aggregate, or to the private sector. The State voluntarily
requested this delegation under Section 112(l) for the purpose of
implementing and enforcing the air toxics program with respect to
sources not covered by Part 70. The delegation imposes no new Federal
requirements. Since the State was not required by law to seek
delegation, this Federal action does not impose a mandate on the State.
Under Section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by June 2, 1997. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See Section 307(b)(2).)
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives and the Comptroller General of the
General Accounting Office prior to publication of this rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
List of Subjects in 40 CFR Part 63
Environmental Protection, Administrative practice and procedure,
Air pollution control, Hazardous substances, Intergovernmental
relations.
Authority: 42 U.S.C. 7401, et seq.
Dated: February 7, 1997.
Michelle D. Jordan,
Acting Regional Administrator.
[FR Doc. 97-8183 Filed 3-31-97; 8:45 am]
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