Approval and Promulgation of Implementation Plan for Wisconsin

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[WI33-01-5764a; FRL-5135-2]

Approval and Promulgation of Implementation Plan for Wisconsin

AGENCY: United States Environmental Protection Agency (USEPA).

ACTION: Direct final rule.

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SUMMARY: USEPA approves the State implementation plan (SIP) revisions

submitted by the State of Wisconsin for the purpose of meeting

requirements of the Clean Air Act (ACT) with regard to new source

review in areas that have not attained the national ambient air quality

standards (NAAQS). The implementation plan revisions were submitted by

the State to satisfy certain Federal requirements for an approvable

nonattainment new source review SIP for Wisconsin.

This action also approves Wisconsin's Operating Permits rule as

satisfying the requirements given in the Federal Register of June 28,

1989, for establishing federally enforceable State operating permits

(FESOP). USEPA is approving Wisconsin's operating permits program for

the purpose of creating federally enforceable limitations on the

potential to emit of certain pollutants, including those regulated

under sections 110, 111, and 112 of the Clean Air Act.

DATES: This action will be effective February 17, 1995, unless adverse

or critical comments are received by February 17, 1995. If the

effective date is delayed, timely notice will be published in the

Federal Register.

ADDRESSES: Comments can be mailed to Carlton Nash, Chief, Regulation

Development Section, Air Toxics and Radiation Branch, United States

Environmental Protection Agency, 77 West Jackson Boulevard (AT-18J),

Chicago, Illinois 60604. [[Page 3539]]

Copies of the State's submittal and USEPA's technical support

documents are available for inspection during normal business hours at

the following locations:

United States Environmental Protection Agency, Region 5, Air and

Radiation Division, 77 West Jackson Boulevard (AT-18J), Chicago,

Illinois 60604; and

Wisconsin Department of Natural Resources, 101 South Webster

Street, P.O. Box 7921, Madison, Wisconsin 53707.

A copy of this SIP revision is also available at the following

location:

Office of Air and Radiation, Docket and Information Center (Air

Docket 6102), room M1500, USEPA, 401 M Street, SW., Washington, DC

20460.

FOR FURTHER INFORMATION CONTACT: Constantine Blathras, USEPA (AT-18J),

77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-0671.

SUPPLEMENTARY INFORMATION:

I. Background

The air quality planning requirements for nonattainment new source

review are set out in part D of subchapter I of the ACT. USEPA issued a

``General Preamble'' describing USEPA's preliminary views on how USEPA

intends to review SIPs and SIP revisions submitted under part D,

including those State submittals containing nonattainment area new

source review (NSR) SIP requirements (see 57 FR 13498 (April 16, 1992)

and 57 FR 18070 (April 28, 1992)). Because USEPA is describing its

interpretations here only in broad terms, the reader should refer to

the General Preamble for a more detailed discussion of the

interpretations of part D advanced in this action and the supporting

rationale.

II. The Wisconsin New Source Review Rules

Section 110(k) of the ACT sets out provisions governing USEPA's

review of SIP submittals (see 57 FR 13565-13566).

A. Analysis of State Submission

1. Submittal Information

Wisconsin's initial NSR plan in response to the 1990 Amendments to

the ACT was submitted to USEPA on November 15, 1992 as a proposed

revision to the SIP. This submittal consisted of a set of statutory

changes, and a temporary rule which was in effect for 180 days from

November 15, 1992 and a draft of a permanent rule. The State of

Wisconsin held a public hearing on December 1, 1992 to entertain public

comment on this submittal. On January 15, 1993, Wisconsin submitted

materials related to the public comments it received. On July 28, 1993,

Wisconsin submitted its permanent NSR rule, Natural Resources (NR) 408,

Wisconsin Administrative Code, Nonattainment Area Major Source Permits

superseding the temporary rule previously submitted. On January 14,

1994, Wisconsin submitted changes and revisions to NR 400, Air

Pollution Control Definitions, NR 406, Construction Permits, and NR

490, Procedures for Noncontested Case Public Hearings. USEPA is

approving statutory changes as well as NR 400, 406, 408, and 490. These

are discussed further as follows and in the technical support documents

for this SIP revision.

USEPA reviewed the November 15, 1992 and July 28, 1993 SIP revision

submittals to determine completeness, in accordance with the

completeness criteria set out at 40 CFR part 51, appendix V (1991), as

amended by 57 FR 42216 (August 26, 1991). These submittals were found

to be complete on August 31, 1993, and USEPA forwarded a letter dated

August 31, 1993 to the Wisconsin Department of Natural Resources (WDNR)

Bureau of Air Management Director indicating the completeness of the

submittals and the next steps to be taken in the review process.

2. General Nonattainment NSR Requirements

The statutory requirements for nonattainment new source review SIPs

and permitting are found at sections 172 and 173. A listing of these

provisions and how Wisconsin's rules meet them follows.

a. Provisions to assure that new source growth does not interfere

with reasonable further progress (RFP) for the area and that

calculation of emissions offsets are based on the same emissions

baseline used in the demonstration of RFP. Wisconsin has met this

requirement in NR 408.05 and NR 408.06(f).

b. Provisions according to section 173(c)(1) to allow offsets to be

obtained in another nonattainment area if: the area in which the

offsets are obtained has an equal or higher nonattainment

classification; and emissions from the nonattainment area in which the

offsets are obtained contribute to a NAAQS violation in the area in

which the source would construct. Wisconsin has met this requirement in

NR 408.06(2).

c. Provisions to assure, pursuant to section 173(c)(1), that any

emissions offsets obtained in conjunction with the issuance of a permit

to a new or modified source are in effect and enforceable by the time

the new or modified source is to commence operation. Wisconsin has met

this requirement in NR 408.06(g).

d. Provisions to assure that emissions increases from new or

modified major stationary sources are offset by reductions in actual

emissions as required by section 173(c)(1). Wisconsin has met this

requirement in NR 408.06(3).

e. Provisions, pursuant to section 173(c)(2), to prevent emissions

reductions otherwise required by the ACT from being credited for

purposes of satisfying the part D offset requirements. Wisconsin has

met this requirement in NR 408.06(1)(g) NR 408.06(9).

f. Provisions reflecting changes in growth allowances, pursuant to

sections 172(c)(4), 173(a)(1)(B) and 173(b); specifically, the

elimination of existing growth allowances in any nonattainment area

that received a notice prior or subsequent to the Amendments that the

SIP was substantially inadequate; and the restrictions of growth

allowances to only those portions of nonattainment areas formally

targeted as special zones for economic growth. Wisconsin does not have

any growth allowances.

g. Provisions, pursuant to section 173(a)(5), that, as a

prerequisite to issuing any part D permit, require an analysis of

alternative sites, sizes, production processes, and environmental

control techniques for proposed sources that demonstrates that the

benefits of the proposed source significantly outweigh the

environmental and social costs imposed as a result of its location,

construction, or modification. Wisconsin has met this requirement in NR

408.08(2).

h. Provisions for supplying control technology information from

nonattainment new source review permits to USEPA for inclusion in the

Reasonably Available Control Technology (RACT)/Best Available Control

Technology (BACT)/Lowest Achievable Emission Rate (LAER) clearinghouse,

pursuant to section 173(d). WDNR has met this requirement in NR

408.04(7) and has committed to report determinations to the RACT/BACT/

LAER clearinghouse in the annual WDNR Air Management Program Workplan.

i. Provisions pursuant to section 173(e) that allow any existing or

modified source that tests rocket engines or motors to use alternative

or innovative means to offset emissions increases from firing and

related cleaning, if the four conditions set forth therein are met.

Wisconsin has no such sources or activities in the State.

[[Page 3540]]

j. Provisions, pursuant to section 819, Public Law 101-549 (note to

42 U.S.C. 7511) that effectively exempt activities related to stripper

wells from the new NSR requirements of new Subparts 2, 3, and 4 for

particulate matter (PM), ozone, or carbon monoxide (CO) nonattainment

areas classified as serious or less, and having a population of less

than 350,000. No exclusion is provided for PM, ozone, or CO serious

nonattainment areas having a population of 350,000 or more, or in

severe and extreme ozone nonattainment areas. The general NSR

provisions of sections 172 and 173 of part D still apply. There are no

stripper well activities in Wisconsin.

k. Provisions, pursuant to section 328, to assure that sources

located on the outer continental shelf (OCS) are subject to the same

requirements as would be applicable if the source were located in the

corresponding onshore area. Wisconsin is not located on the OCS.

l. A definition of ``stationary source'' reflecting Congressional

intent, as set forth in section 302(z), that certain internal

combustion engines subject to control under State programs, but

excluding the newly defined category of ``nonroad engines''. Wisconsin

has met this requirement in NR 400.02(96) and section 144.30(23), 91-92

Wisconsin Statutes.

m. Exemptions from nonattainment new source review provisions,

pursuant to section 415(b)(2), for installation, operation, cessation,

or removal of a temporary clean coal technology demonstration project.

Such projects must still comply with any applicable SIP and all other

requirements for the attainment and maintenance of NAAQS. Wisconsin has

met this requirement in NR 408.02(20)(e)(9).

n. Provisions, pursuant to section 173(a)(3), to assure that owners

or operators of each proposed new or modified major stationary source

demonstrate that all other major stationary sources under the same

ownership in the State are in compliance, or on a schedule for

compliance, with the Clean Air Act. Wisconsin has met this requirement

in NR 408.08(1).

3. Ozone Nonattainment NSR Requirements

According to section 172(c)(5), SIPs must require permits for the

construction and operation of new or modified major stationary sources.

The statutory permit requirements for ozone nonattainment areas are

generally contained in revised section 173, and in subpart 2 of part D.

These are the minimum requirements that States must include in an

approvable implementation plan. For all classifications of ozone

nonattainment areas and for ozone transport regions, States must adopt

the appropriate major source thresholds and offset ratios, and must

adopt provisions to ensure that any new or modified major stationary

source of nitrogen oxides (NOX) satisfies the requirements

applicable to any major source of volatile organic compounds (VOC),

unless a special NOX exemption is granted by the Administrator

under the provision of section 182(f). For serious and severe ozone

nonattainment areas, State plans must implement section 182(c)(6) and

may implement sections 182(c) (7) and (8) with regard to modifications.

Wisconsin has established major source thresholds, and offset

ratios, and has included provisions for VOC and NOX major

stationary sources as follows:

------------------------------------------------------------------------

Area Major source

classification threshold Offset ratio NOX provisions

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Marginal......... 100 tons per year 1.1 to 1........ Included.

Moderate......... 100 tons per year 1.15 to 1....... Included.

Serious.......... 50 tons per year. 1.2 to 1........ Included.

Severe........... 25 tons per year. 1.3 to 1........ Included.

Extreme1......... 10 tons per year. 1.5 to 1........ Included.

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1Wisconsin does not have an extreme ozone nonattainment area.

In addition, Wisconsin's plan submittal reflects appropriate

modification provisions under in sections 182(c), (d), and (e), for

serious and severe areas. NR 408.02(2)(c) sets the major modification

threshold level (``de minimis level'') in serious and severe areas at

25 tons per year (tpy) where the creditable emissions increases and

decreases from the proposed modification is aggregated with all other

net emissions increases from the source over a 5 consecutive calendar

year period prior to, and including, the year of modification.

NR 408.03(6) and NR 408.04(6) provide that in serious and severe

areas, major modifications to existing sources that have a potential to

emit of less than 100 tpy shall substitute best available control

technology for lowest achievable emission rate (LAER) and may avoid

major source status by internally offsetting the emissions increase by

a ratio of 1.3 to 1.

NR 408.04(5) provides the major modifications to existing sources

that have a potential to emit of greater than 100 tpy may avoid LAER

requirements by internally offsetting the emissions increase by a ratio

of 1.3 to 1.

4. Carbon Monoxide Nonattainment NSR Requirements

The statutory permit requirements for CO nonattainment areas are

generally contained in section 173, and in subpart 3 of part D. These

are the minimum requirements that States must include in an approvable

implementation plan. States must adopt the appropriate major source

threshold and offset ratio.

Wisconsin has established a major source threshold of 100 tpy in NR

408.02(21)(a) for moderate CO nonattainment areas, a modification

significance level of 100 tpy in NR 408.02(32)(a)1, and an offset ratio

of 1 to 1 in NR 408.06(3).

5. PM Nonattainment NSR Requirements

The statutory permit requirements for PM nonattainment areas are

generally contained in revised section 173, and in subpart 4 of part D.

These are the minimum requirements that States must include in an

approvable implementation plan. States must adopt the appropriate major

source threshold, offset ratio, significance level for modifications,

and provisions for PM precursors (such as SO2, NOX, and VOC).

Wisconsin has established major source thresholds in NR

408.02(21)(a), offset ratios in NR 408.06(3), modification significance

levels in NR 408.02(32)(a)5, and PM precursor provisions in NR

408.02(21)(a & d), NR 408.02(32)(g & h), and NR 408.03(4) as follows:

------------------------------------------------------------------------

Major

Area classification source Offset Significance Precursor

threshold ratio level provisions

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Moderate................. 100 tpy... 1 to 1. 15 tpy...... yes

Serious\2\............... 70 tpy.... 1 to 1. 10 tpy...... yes

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\2\Wisconsin does not have a serious PM nonattainment area.

6. Sulfur Dioxide Nonattainment NSR Requirements

The statutory permit requirements for SO2 nonattainment areas

are generally contained in section 173, and in subpart 5 of part D.

These are the minimum requirements that States must include in an

approvable implementation plan. For SO2 nonattainment areas,

States must adopt the appropriate major source threshold, offset ratio,

and significance level for modifications.

Wisconsin has established a major source threshold of 100 tpy in NR

408.02(21)(a), an offset ratio of 1 to 1 in [[Page 3541]] NR 408.06(3),

and a modification significance level of 40 tpy in NR 408.02(32)(a)3.

7. Lead Nonattainment NSR Requirements

The statutory permit requirements for lead nonattainment areas are

generally contained in section 173, and in Subpart 5 of part D. These

are the minimum requirements that States must include in an approvable

implementation plan. For lead nonattainment areas, States must adopt

the appropriate major source threshold, offset ratio, and significance

level for modifications.

Wisconsin has established a major source threshold of 100 tpy NR in

408.02(21)(a), an offset ratio of 1 to 1 in NR 408.06(3), and a

modification significance level of 0.6 tpy in NR 408.02(32)(a)6.

After consideration of the material submitted by the State of

Wisconsin, USEPA has determined that the Wisconsin New Source Review

rules revision satisfy the requirements for nonattainment new source

review SIPs and permitting.

III. The Wisconsin Operating Permit Program

For many years, Wisconsin has been issuing permits for major new

sources and for major modifications of existing sources. Throughout

this time, Wisconsin has also been issuing permits establishing

limitations on the potential to emit from new sources so as to avoid

major source permitting requirements. This latter type of permitting

has been the subject of various guidance from the USEPA, including the

memoranda entitled ``Guidance on Limiting Potential to Emit in New

Source Permitting'' dated June 13, 1989, ``Limitation of Potential to

Emit with Respect to Title V Applicability Thresholds'' dated September

18, 1992, and ``Approaches to Creating Federally-Enforceable Emissions

Limits'' dated November 3, 1993.

The advent of operating permits pursuant to Title V of the ACT

Amendments of 1990 has created interest in mechanisms for limiting

sources' potential to emit, thereby allowing the sources to avoid being

defined as ``major'' with respect to the Federal operating permits

programs. A key mechanism for such limitations is the use of FESOPs.

USEPA has issued guidance on FESOPs in the Federal Register of June 28,

1989 (54 FR 27274). Since operating permits are issued pursuant to a

program approved by USEPA, these permits will also be enforceable by

citizens pursuant to section 304 of the ACT.

On January 14, 1994, WDNR submitted the regulations, statutory

changes, and administrative framework for the Operation Permits rule,

NR 407, as a revision to its permit SIP. This SIP revision submittal is

needed in order to make conditions in construction and operating

permits federally enforceable and to create synthetic minor sources.

USEPA is approving this program as meeting the five criteria

articulated in the June 28, 1989 Federal Register notice for State

operating permit programs to establish federally enforceable limits on

potential to emit.

First Criterion

``The state operating permit program (i.e., the regulations or

other administrative framework describing how such permits are issued)

is submitted and approved by USEPA into the SIP.''

On January 14, 1994, WDNR submitted the regulations and

administrative framework for the Operation Permits rule, NR 407, as a

revision to its permit SIP. USEPA's approval of this section provides

legal support for the operating permit program and satisfies the first

criterion.

Second Criterion

``The SIP imposes a legal obligation that operating permit holders

adhere to the terms and limitations of such permits (or subsequent

revisions of the permit made in accordance with the approved operating

permit program) and provides that permits which do not conform to the

operating permit program requirements and the requirements of USEPA's

underlying regulations may be deemed not `federally enforceable' by

USEPA.''

NR 407.09(1)(f)1 states that, ``Any noncompliance with the

operation permit constitutes a violation of the statutes and is grounds

for enforcement action; for permit suspension, revocation or revision;

or, if applicable under Sec. 144.3925(6) Wisconsin Statues, for denial

of a permit renewal application.'' This satisfies the initial part of

the second approval criterion in that the operating permit holder is

considered in violation of the code if the holder does not abide by the

permit conditions.

The latter part of the second approval criterion requires that the

SIP have provisions which allow USEPA to deem a permit not ``federally

enforceable'' under certain conditions. NR 400.02(39m) defines

``federally enforceable'' as ``all limitations and conditions which are

enforceable by the Administrator of the U.S. Environmental Protection

Agency, * * * and requirements in operating permits issued pursuant to

NR 407 and title V of the Federal clean air act which are designated as

federally enforceable.'' Under NR 407.09(3), all terms and conditions

in an operation permit, including any provisions designed to limit a

stationary sources potential to emit, are enforceable by the

Administrator under section 113(a) of the ACT. In approving the State

operating permit, USEPA is determining that Wisconsin's program allows

USEPA to deem an operating permit not ``federally enforceable'' for

purposes of limiting potential to emit and to offset creditability.

Such a determination will (1) be done according to appropriate

procedures, and (2) be based upon the permit, permit approval

procedures or permit requirements which do not conform with the

operating permit program requirements and the requirements of USEPA's

underlying regulations. Based on this interpretation of Wisconsin's

program, USEPA finds that the second criterion for approving an

operating permit program has been met by the State.

Third Criterion

``The State operating permit program requires that all emissions,

limitations, controls and other requirements imposed by such permits,

will be at least as stringent as any other applicable limitation or

requirement contained in the SIP or enforceable under the SIP, and that

the program may not issue permits that waive, or make less stringent,

any limitation or requirement contained in or issued pursuant to the

SIP, or that are otherwise `federally enforceable' (e.g., standards

established under sections 111 and 112 of the Act).''

Under NR 407.09(3)(b), the department shall specifically designate

as not federally enforceable under the Act any terms and conditions

included in the permit that are not required under the Act, under the

Act's applicable requirements or under the SIP. This provision requires

that State permits comply with the provisions of the ACT and Federal

regulations adopted pursuant to the ACT. Based on these provisions,

USEPA has determined that the State authority to grant permits is

properly restrained by the terms of the SIP, as required by the third

criterion.

Fourth Criterion

``The limitations, controls, and requirements in the operating

permits are permanent, quantifiable and otherwise enforceable as a

practical matter.''

USEPA has reviewed the Wisconsin operating permit program and is

[[Page 3542]] satisfied that it requires the State to issue permits

which meet the requirements of this provision. While the permits do

expire, the conditions they impose must be complied with during the

entire term of the permit as well as during the transition to a renewal

permit. NR 407.04(2) states that no permittee may continue operation of

a source after the operation permit expires, unless the permittee

submits a timely and complete application for renewal of the permit.

Subsequently, NR 407.09(1)(f)1 requires the permittee to comply with

all conditions of the permit provisions. The operating permit program

provisions meet the fourth criterion for permit program approval.

Fifth Criterion

``The permits are issued subject to public participation.'' This

means that the State agrees, as a part of its program, to provide USEPA

and the public with timely notice of the proposed issuance of such

permits, and to provide USEPA, on a timely basis, with a copy of each

proposed (or draft) and final permit intended to be federally

enforceable.

Wisconsin's rules governing public participation in the air permit

program for major sources in nonattainment areas are found in NR 407.07

and section 144.3925 of the 91-92 Wisconsin Statutes. These rules

provide for public notification prior to permit issuance and an

opportunity for public comment. The pubic comment procedure and

commitments to follow them in issuing operating permits, which were

submitted by the WDNR, are approvable as meeting the fifth criterion.

Wisconsin's operating permit regulation not only applies to

criteria pollutants, but also to other air contaminants. Some of these

are or will be regulated by sections 111 and 112 of the ACT. Thus,

USEPA is also approving under section 112(l) of the ACT Wisconsin's

State operating permits program for the purposes of creating federally

enforceable limitations on the potential to emit Hazardous Air

Pollutants (HAPs) regulated under section 112 of the ACT.

The June 28, 1989 document provided that USEPA would approve a

State operating permit program into a SIP for the purpose of

establishing federally enforceable limits on a source's potential to

emit if the program met five specific requirements. This action,

because it was written prior to the 1990 amendments to section 112,

mainly addressed SIP programs to control criteria pollutants. Federally

enforceable limits on criteria pollutants (i.e., VOCs or PM) may have

the incidental effect of limiting certain HAPs listed pursuant to

section 112(b). This situation would occur when a pollutant classified

as a HAP is also classified as a criteria pollutant.3

\3\The USEPA intends to issue guidance addressing the technical

aspects of how these criteria pollutant limits may be recognized for

purposes of limiting a source's potential to emit of HAP to below

section 112 major source levels.

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USEPA has determined that the five approval criteria for approving

FESOP programs into the SIP, as specified in the June 28, 1989 Federal

Register document and discussed above, are also appropriate for

evaluating and approving the programs under Section 112(l). The June

28, 1989 document did not address HAPs because it was written prior to

the 1990 amendments to section 112 and not because it established

requirements unique to criteria pollutants. Hence, the five criteria

are applicable to FESOP approvals under section 112(l).

In addition to meeting the criteria in the June 28, 1989 document,

a FESOP program must meet the statutory criteria for approval under

section 112(l)(5). section 112(l) allows USEPA to approve a program

only if it (1) contains adequate authority to assure compliance with

any Section 112 standards or requirements, (2) provides for adequate

resources, (3) provides for an expeditious schedule for assuring

compliance with section 112 requirements, and (4) is otherwise likely

to satisfy the objectives of the Act.

USEPA plans to codify the approval criteria for programs limiting

potential to emit HAPs in subpart E of part 63, the regulations

promulgated to implement section 112(l) of the Act. USEPA currently

anticipates that these criteria, as they apply to FESOP programs, will

mirror those set forth in the June 28, 1989 document, with the addition

that the State's authority must extend to HAPs in addition to

pollutants such as VOCs and PM. USEPA currently anticipates that FESOP

programs that are approved pursuant to section 112(l) prior to the

subpart E revisions will have had to meet these criteria, and hence,

will not be subject to any further approval action.

Regarding the statutory criteria under section 112(l), USEPA

believes that Wisconsin's FESOP program contains authority to assure

compliance with section 112 requirements because the third criterion of

the June 28, 1989 document is met, since the program does not provide

for waiving any section 112 requirement. Sources would still be

required to meet section 112 requirements applicable to nonmajor

sources. Regarding adequate resources, Wisconsin has included in its

request for approval under section 112(l) a commitment to provide

adequate resources to implement and enforce the program. Fees will be

collected from FESOP sources through both the Title V and FESOP

process. Sources applying through the FESOP program will be charged a

fee based upon actual emissions. Because the processing of a FESOP

permit consumes considerably less resources than the processing of a

Title V permit, the State believes that sufficient resources will be

available to administer FESOP permits for those who request and

qualify. USEPA believes this mechanism will be sufficient to provide

for adequate resources to implement this program, and will monitor the

State's implementation of the program to assure that adequate resources

continue to be available.

Wisconsin's FESOP program also meets the requirement for an

expeditious schedule for assuring compliance. A source seeking a

voluntary limit on potential to emit is probably doing so to avoid a

Federal requirement applicable on a particular date. Nothing in this

program would allow a source to avoid or delay compliance with the

Federal requirement if it fails to obtain the appropriate federally

enforceable limit by the relevant deadline. Finally, Wisconsin's FESOP

program is consistent with the objectives of the section 112 program

since its purpose is to enable sources to obtain federally enforceable

limits on potential to emit to avoid major source classification under

section 112. USEPA believes this purpose is consistent with the overall

intent of section 112.

After consideration of the material submitted by the State of

Wisconsin, USEPA has determined that the Wisconsin Operating Permit

Program satisfies the five criteria needed to establish federal

enforceability of State operating permits, published in the Federal

Register on June 28, 1989 (54 FR 27274), and the four additional

criteria of section 112(l) of the ACT. USEPA approves the incorporation

of this program into the SIP for the proposes of issuing federally

enforceable operating permits. Therefore, emissions limitations and

other provisions contained in operating permits issued by the State in

accordance with the applicable Wisconsin SIP provisions, approved

herewith, shall be federally enforceable by USEPA, and by any person in

the same manner as other requirements of the SIP. [[Page 3543]]

IV. This Action

USEPA approves the plan revisions submitted on November 15, 1992,

January 15, 1993, July 28, 1993 and January 14, 1994, to implement the

new source review provisions of part D and Operating Permits program.

Each of the program elements mentioned above were properly addressed.

This rule will become effective on February 17, 1995. However, if we

receive notice by February 17, 1995, that someone wishes to submit

adverse comments, then USEPA will publish: (1) A document that

withdraws the action, and (2) a document that begins a new rulemaking

by proposing the action and establishing a comment period. USEPA is

publishing this action without prior proposal because the Agency views

this as a noncontroversial amendment and anticipates no adverse

comments. However, in a separate document in this Federal Register,

USEPA is proposing to approve the SIP revision should adverse or

critical comments be filed. This action will be effective February 17,

1995, unless, within 30 days of its publication, adverse or critical

comments are received.

If USEPA receives such comments, this action will be withdrawn

before the effective date by publishing a subsequent action that will

withdraw the final action. All public comments received will then be

addressed in a subsequent final rule based on this action serving as a

proposed rule. USEPA will not institute a second comment period on this

action. Any parties interested in commenting on this action should do

so at this time. If no such comments are received, the public is

advised that this action will be effective February 17, 1995.

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). The OMB has exempted this action

from review under Executive Order 12866.

Nothing in this action should be construed as permitting, allowing

or establishing a precedent for any future request for revision to any

SIP. USEPA 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.

Under Executive Order 12866, 58 FR 51735 (October 4, 1993), USEPA

must determine whether the regulatory action is ``significant'' and

therefore subject to OMB review and the requirements of the Executive

Order. The Order defines ``significant regulatory action'' as one that

is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or

adversely affect in a material way the economy, a sector of the

economy, productivity, competition, jobs, the environment, public

health or safety, of State, local, or tribal governments or

communities;

(2) Create a serious inconsistency or otherwise interfere with an

action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants,

user fees, or loan programs or the rights and obligations of recipients

thereof; or

(4) Raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

the Executive Order.

OMB has exempted this regulatory action from E.O. 12866 review.

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.

Alternately, USEPA 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.

SIP approvals under section 110 and 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 any small entities affected. 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. USEPA, 427 U.S. 246, 256-66 (1976).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Incorporation by reference, Intergovernmental relations,

Nitrogen dioxide, Ozone, Particulate matter, Reporting and

recordkeeping requirements, Sulfur dioxide, Volatile organic compounds.

Dated: December 16, 1994.

Valdas V. Adamkus,

Regional Administrator.

For the reasons set out in the preamble, part 52, chapter 1, title

40 of the Code of Federal Regulations is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

1. The authority citation for part 52 continues to read as follows:

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

Subpart YY--Wisconsin

2. Section 52.2570 is amended by adding paragraphs (c) (75) and

(76) to read as follows:

Sec. 52.2570 Identification of plan.

* * * * *

(c) * * *

(75) On November 15, 1992, January 15, 1993, July 28, 1993, and

January 14, 1994 the State of Wisconsin submitted emergency and

permanent rules for issuance of New Source Review permits for new and

modified air pollution sources in nonattainment areas, as required by

section 182(a)(2)(c) of the Clean Air Act. The emergency rules have now

been superseded by the permanent rules to clarify and specify the NSR

requirements that sources must meet under the Clean Air Act. Also

submitted were portions of 1991 Wisconsin Act 302.

(i) Incorporation by reference.

(A) NR 400--Wisconsin Administrative Code, Air Pollution Control,

Effective date January 1, 1994.

(B) NR 406--Wisconsin Administrative Code, Construction Permits,

Effective date January 1, 1994.

(C) NR 408--Wisconsin Administrative Code, Nonattainment Area Major

Source Permits, Effective date June 1, 1993.

(D) NR 490--Wisconsin Administrative Code, Procedures for

Noncontested Case Public Hearings, Effective date January 1, 1994.

(E) Section 144.30--91-92 Wisconsin Statutes. Effective date May

14, 1992.

(F) Section 144.391--91-92 Wisconsin Statutes. Effective date May

14, 1992.

(G) Section 144.392--Construction permit application and review,

91-92 Wisconsin Statutes. Effective date May 14, 1992.

(H) Section 144.393--91-92 Wisconsin Statutes. Effective date May

14, 1992.

(i) Section 144.394--Permit conditions, 91-92 Wisconsin Statutes.

Effective date May 14, 1992. [[Page 3544]]

(ii) Additional material.

(A) Wisconsin's Emergency NSR regulations. Effective date November

15, 1992.

(B) On December 12, 1994, Donald Theiler, Director, Bureau of Air

Management, WDNR sent a letter to USEPA clarifying Wisconsin's

interpretation of ``any period of 5 consecutive years.'' Wisconsin

interprets the term as referring to the five-year period including the

calendar year in which the increase from the particular change will

occur and the four immediately preceding years.

(76) On January 14, 1994, the State of Wisconsin submitted its

rules for an Operating Permits program intended to satisfy federal

requirements for issuing federally enforceable operating permits.

(i) Incorporation by reference.

(A) NR 407--Wisconsin Administrative Code, Operating Permits,

Effective date January 1, 1994.

* * * * *

[FR Doc. 95-1085 Filed 1-17-95; 8:45 am]

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