Approval and Promulgation of a Commitment To Adopt a Rule for Reasonably Available Control Technology for Oxides of Nitrogen for Wisconsin

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[WI31-02-6033; AMS-FRL-4830-1]

Approval and Promulgation of a Commitment To Adopt a Rule for

Reasonably Available Control Technology for Oxides of Nitrogen for

Wisconsin

AGENCY: United States Environmental Protection Agency (USEPA).

ACTION: Final rule.

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SUMMARY: The USEPA is conditionally approving a revision to the

Wisconsin State Implementation Plan (SIP) for ozone. This revision was

submitted by the State to satisfy Clean Air Act (Act) requirements for

adoption of rules for application of reasonably available control

technology (RACT) for oxides of nitrogen (NOx) in the Milwaukee,

Kewaunee, Manitowoc, and Sheboygan ozone nonattainment areas in

Wisconsin. The Milwaukee area consists of Kenosha, Milwaukee, Ozaukee,

Racine, Washington, and Waukesha counties. In this notice, USEPA is

acting not on the rules themselves, but on a commitment by the State to

submit NOx RACT rules at a later date.

EFFECTIVE DATE: This action will be effective March 3, 1994.

FOR FURTHER INFORMATION CONTACT: Daniel Meyer, Air Toxics and Radiation

Branch, Regulation Development Section (AT-18J), United States

Environmental Protection Agency, Region 5, Chicago, Illinois 60604,

(312) 886-9401.

SUPPLEMENTARY INFORMATION:

I. Summary of State Submittal

The Wisconsin Department of Natural Resources (WDNR) has committed

to submit NOx RACT rules to USEPA as a revision to its ozone SIP

within 1 year after USEPA approves the commitment. WDNR has not yet

submitted the rules because sufficient evidence does not yet exist to

prove a need for controlling major stationary source NOx emissions

in the Wisconsin ozone nonattainment areas. WDNR is performing

photochemical grid modeling to determine whether NOx controls on

major stationary sources would be beneficial. Modeling results are not

yet available. WDNR submitted the commitment to USEPA on November 15,

1992, and submitted additional information to supplement the original

submittal on January 15, 1993, and March 29, 1993.

II. Analysis of State Submittal

The criteria for approving a NOx RACT committal is set forth

in section 110(k)(4) of the Act and in several documents described in

USEPA's August 4, 1993, notice of proposed rulemaking for approval of

Wisconsin's NOx RACT committal, 58 FR 41451-41452. The memoranda

of July 22, 1992, and September 16, 1992, from Deputy Assistant

Administrator Michael Shapiro to the USEPA Air Division Directors, set

forth the following acceptability criteria for committal SIPs due

November 15, 1992: (1) The State must provide notice and public hearing

on the commitment; (2) the commitment must include the basis for a

conditional approval; and (3) the commitment must include a State work

plan detailing any specific measures to be adopted, the steps that will

be taken to adopt the measures, and the schedule for adoption of those

measures. The State has satisfied all of these requirements in its

commitment.

Two additional guidance documents, the NOx Supplement to the

General Preamble (57 FR 55620-55629) and the February 2, 1993,

memorandum entitled ``Questions and Answers on Nitrogen Oxides

Emissions Policy,'' from G.T. Helms to the Air Branch Chiefs, set forth

the following criteria for determining the acceptability of a NOx

RACT committal SIP for conditional approval: (1) The committal must

describe the reason for the committal instead of a full SIP submittal;

(2) the committal must document that credible photochemical grid

modeling is not available or did not consider the effects of NOx

reductions; (3) the committal must identify the resources to complete

the photochemical grid modeling; and (4) the committal must include a

schedule outlining the milestones that have been and will be achieved

toward completion of the modeling activities and the NOx RACT

rules. In its schedule, the State must commit to adopt NOx RACT

rules and to submit the rules to USEPA within 1 year after USEPA

approval of the committal. The State has complied with all of these

requirements in its committal. Most importantly, the State has

demonstrated that photochemical grid modeling is progressing under the

Lake Michigan Ozone Control Program, and the State has committed to

submit NOx RACT rules to USEPA within 1 year after USEPA approval

of the State committal. A detailed analysis of the submittal can be

found in an April 28, 1993, Region 5 technical support document

proposing conditional approval of this revision to the Wisconsin SIP

for ozone. The USEPA proposed to approve the NOx RACT committal in

an August 4, 1993, Federal Register document. No comments were received

regarding USEPA's proposed action.

III. Implication of Action

USEPA conditionally approves of the State's commitment to adopt

NOx RACT rules for the Milwaukee, Kewaunee, Manitowoc, and

Sheboygan areas in Wisconsin as a revision to the ozone SIP. If the

State fails to submit adopted NOx RACT rules 1 year after USEPA

approval of the commitment, USEPA will propose to disapprove the

commitment as failing to comply with section 110(k)(4) of the Act. If

the State fails to adopt legislative authority or meet other applicable

milestones in the commitment SIP schedule, USEPA may also disapprove

the commitment as failing to comply with section 110(k)(4), if such

failure to meet a specific milestone indicates that the State may not

be able to meet the submission date.

If, after considering comments on the final rulemaking, USEPA

issues a final disapproval or if the conditional approval is converted

to a disapproval, the sanctions clock under section 179(a) will begin.

The clock will begin at the time USEPA issues the final disapproval or

at the time USEPA notifies the State by letter that a conditional

approval has been converted to a disapproval. If the State does not

submit and USEPA does not approve the rule on which the disapproval was

based within 18 months of the disapproval, USEPA must impose one of the

sanctions under section 179(b) highway funding restrictions or the

offset sanction. In addition, the final disapproval starts the 24 month

clock for the imposition of a section 110(c) Federal Implementation

Plan. Finally, under section 110(m), USEPA has discretionary authority

to impose sanctions at any time after a final disapproval.

IV. Executive Order (EO) 12291

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. On January 6, 1989, 54 FR 2222, the

Office of Management and Budget (OMB) waived Table 2 and 3 SIP

revisions from the requirements of section 3 of Executive Order 12291

for a period of 2 years. USEPA has submitted a request for a permanent

waiver for Table 2 and 3 SIP revisions. OMB has agreed to continue the

waiver until such time as it rules on USEPA's request. This request

continues in effect under Executive Order 12866 which superseded

Executive Order 12291 on September 30, 1993.

V. Regulatory Flexibility

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., USEPA

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, USEPA may certify that the rule will not have a

significant economic 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.

Conditional approvals under sections 110 and 301, subchapter I,

part D of the Act do not create any new requirements, but simply

approve requirements that the State is already imposing. Therefore,

because the Federal SIP approval does not impose any new requirements,

I certify that it does not have a significant impact on affected small

entities. Moreover, due to the nature of the Federal-State relationship

under the Act, preparation of a regulatory flexibility analysis would

constitute Federal inquiry into the economic reasonableness of State

action. The Act forbids USEPA 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); 42 U.S.C. 7410(a)(2).

If USEPA issues a final disapproval or the conditional approval is

converted to disapproval under section 110(k) of the Act based upon the

State's failure to meet the commitment, it will not affect any existing

State requirements applicable to small entities. Federal disapproval of

the State submittal does not affect its State-enforceability. Moreover,

USEPA's disapproval of the submittal does not impose a new Federal

requirement. Therefore, USEPA certifies that this disapproval action

does not have a significant impact on a substantial number of small

entities, because it does not remove existing State requirements nor

does it substitute a new Federal requirement.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Intergovernmental

relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping

requirements.

Dated: January 12, 1994.

Valdas V. Adamkus,

Regional Administrator.

Part 52, chapter I, title 40 of the Code of Federal Regulations 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 adding Sec. 52.2569 to read as follows:

Sec. 52.2569 Identification of plan--conditional approval.

(a) Revisions to the plan identified in Sec. 52.2570 were submitted

on the date specified.

(1) On November 15, 1992, the Wisconsin Department of Natural

Resources (WDNR) submitted a commitment to adopt oxides of nitrogen

(NOx) reasonably available control technology (RACT) rules as a

proposed revision to the State's ozone State Implementation Plan (SIP).

After holding a public hearing on the submission, WDNR resubmitted the

SIP on January 15, 1993. In this submission, the State commits to adopt

NOx RACT rules within 1 year after United States Environmental

Protection Agency (USEPA) approval of State's commitment. On March 29,

1993, WDNR further committed to submit these rules to USEPA as a

revision to the SIP 1 year after USEPA approval of the State's

commitment. In this section, USEPA conditionally approves the State's

revision to the Wisconsin SIP for ozone.

[FR Doc. 94-2168 Filed 1-31-94; 8:45 am]

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