Withdrawal of Approval of Implementation Plan Item; Wisconsin

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]

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