[Federal Register Volume 59, Number 160 (Friday, August 19, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-19845]
[[Page Unknown]]
[Federal Register: August 19, 1994]
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EVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[WI46-01-6590; FRL-5050-3]
Withdrawal of Approval of Implementation Plan Item; Wisconsin
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The United States Environmental Protection Agency withdraws
the conditional approval of the State of Wisconsin's committal State
Implementation Plan (SIP) for oxides of nitrogen (NOX) reasonably
available control technology (RACT) issued on February 1, 1994.
Approval of this committal allowed the State to delay submitting
NOX RACT rules until February 1, 1995. On May 6, 1994, the Court
of Appeals for the District of Columbia Circuit (D.C. Circuit) rejected
EPA's construction of the conditional approval provision to allow for
committal SIPs. In light of this decision EPA issued notices of failure
to submit NOX RACT SIPs to all States that had merely submitted
committal NOX RACT SIPs. Therefore, both to comply with the
Court's decision and in the interest of equity with other States, EPA
believes it is necessary to make this withdrawal effective upon
publication so that EPA may then immediately issue a finding of failure
to submit to the State of Wisconsin.
DATES: This final rule will be effective August 19, 1994.
ADDRESSES: Written comments should be sent to: Carlton T. Nash, Chief,
Regulation Development Section, Air Toxics and Radiation Branch (AT-
18J), EPA, Region 5, 77 West Jackson Boulevard, Chicago, Illinois
60604-3590.
Copies of the SIP revision request and the EPA's analysis are
available for inspection at the following address: (It is recommended
that you telephone Douglas Aburano at (312) 353-6960 before visiting
the Region 5 office.) EPA, Region 5, Air and Radiation Division, 77
West Jackson Boulevard, Chicago, Illinois 60604-3590.
FOR FURTHER INFORMATION CONTACT:
Douglas Aburano, Air Toxics and Radiation Branch (AT-18J), EPA, Region
5, Chicago, Illinois 60604, (312) 353-6960.
SUPPLEMENTARY INFORMATION
I. Background
On February 1, 1994, EPA issued a final conditional approval of a
committal SIP submitted by the State of Wisconsin. By this committal
SIP, the State committed to adopt for the Milwaukee, Kewaunee,
Manitowoc, and Sheboygan nonattainment areas reasonably available
control technology (RACT) for stationary sources of oxides of nitrogen
(NOX) emissions. The committal SIP consisted of a commitment of
the State to adopt such rules and a schedule for adoption. The State
submitted this committal SIP pursuant to an interpretation of the EPA
that such commitments could be considered for conditional approval
under section 110(k)(4) of the Act. See Memorandum, dated July 22,
1992, from Michael H. Shapiro, Deputy Assistant Administrator for Air
and Radiation, entitled ``Guidelines for State Implementation Plans Due
November 15, 1992'' (hereafter ``Shapiro Memorandum''); Nitrogen Oxide
Supplement to the General Preamble, 57 FR 55620 (November 25, 1992).
On October 9, 1992, the Natural Resources Defense Council (NRDC)
challenged EPA's committal SIP policy as set forth in the Shapiro
Memorandum. NRDC v. EPA, No. 92-1535 (D.C. Cir.). Furthermore, on
December 4, 1992, NRDC challenged EPA's committal SIP policy with
respect to NOX RACT submittals, as that policy was articulated in
the NOX Supplement to the General Preamble. NRDC v. EPA, No. 92-
1630 (D.C. Cir.). NRDC sought to consolidate these cases, along with a
third case challenging EPA's committal SIP policy for inspection and
maintenance (I/M) SIP submittals. The Court denied NRDC's motions to
consolidate the cases, but set all three cases for oral argument on the
same date.
The three cases were argued before the Court of Appeals for the
D.C. Circuit on March 3, 1994. On March 8, 1994, the Court issued an
Order with respect to the I/M challenge, finding that EPA's committal
SIP policy ``is contrary to law.'' The Court issued an Amended Order on
April 22, 1994, but did not change this fundamental decision in the
Amended Order. On May 6, 1994 the Court issued its full opinion as to
all three cases. In that opinion, the Court reiterated its rejection of
EPA's construction of the conditional approval provision to allow for
committal SIPs. See NRDC v. EPA, No. 1535, slip op. at 16 (D.C. Cir.,
May 6, 1994).
II. Action
Because the Court has clearly rejected EPA's use of the committal
SIPs policy to extend statutory deadlines, EPA is withdrawing its
conditional approval of Wisconsin's NOX RACT committal SIP.
Furthermore, EPA is using the good cause exception of the
Administrative Procedure Act to take such action without providing an
opportunity for notice and comment because the Court has clearly
articulated that such a conditional approval is contrary to law. 5
U.S.C. 553(b)(B). Notice and opportunity for comment are unnecessary
because the Court directly addressed the use of conditional approval
for NOX RACT committal SIPs in its opinion and explicitly rejected
such a use. Therefore, any comments would not be sufficient to rebut
this legal interpretation of the Court, and EPA would be obligated to
take final action withdrawing the conditional approval. Furthermore,
because the Court has so clearly articulated that such action was
contrary to law, it is not in the public interest to prolong the
process by providing notice and an opportunity for comment.
In addition, EPA also believes that it is proper to invoke the good
cause exception for making an action effective earlier than 30 days
after publication in the Federal Register. See 5 U.S.C. 553(d)(3).
Prompted by the Court's order, by July 8, 1994, EPA issued notices of
failure to submit NOX RACT SIPs to all States that had merely
submitted committal NOX RACT SIPs. Because EPA conditionally
approved of Wisconsin's NOX RACT committal SIP and such
conditional approval was still effective on July 8, 1994, EPA did not
issue such a finding to the State of Wisconsin. The State of Wisconsin,
however, should not be put in a more favorable position than other
States merely because EPA had not yet taken final action on the other
States' committal SIPs. Therefore, both to comply with the Court's
decision and in the interest of equity, EPA believes it is necessary to
make this withdrawal effective upon publication so that EPA may then
immediately issue a finding of failure to submit to the State of
Wisconsin.
III. Summary and Conclusion
EPA is taking final action to withdraw the conditional approval of
Wisconsin's NOX RACT committal SIP. This action will be effective
immediately upon publication of this action in the Federal Register.
IV. Miscellaneous
A. Applicability to Future SIP Decisions
Nothing in this action should be construed as permitting, allowing
or establishing a precedent for any future request for revision to any
SIP. The EPA shall consider each request for revision to the SIP in
light of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
B. Executive Order 12866
This action has been classified as a Table 2 action by the Regional
Administrator under the procedures published in the Federal Register on
January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993
memorandum from Michael H. Shapiro, Acting Assistant Administrator for
Air and Radiation. The OMB has exempted this regulatory action from
E.O. 12866 review.
C. Regulatory Flexibility
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.
This approval does not create any new requirements. Therefore, I
certify that this action does not have a significant impact on any
small entities affected. Moreover, due to the nature of the Federal-
State relationship under the Act, preparation of the regulatory
flexibility analysis would constitute Federal inquiry into the economic
reasonableness of the State action. The Act forbids EPA to base its
actions concerning SIPs on such grounds. Union Electric Co. v. U.S.
E.P.A., 427 U.S. 246, 256-66 (1976).
D. Petitions for Judicial Review
Under section 307(b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by October 18, 1994. 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)).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Oxides of nitrogen, Ozone,
Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401-7671q.
Dated: July 25, 1994.
Robert Springer,
Acting Regional Administrator.
40 CFR part 52 is amended as follows.
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart YY--Wisconsin
2. Subpart YY is amended by removing section 52.2569.
3. Section 52.2585 is amended by removing and reserving paragraph
(c).
[FR Doc. 94-19845 Filed 8-18-94; 8:45 am]
BILLING CODE 6560-50-M
