Approval of Section 112(l) Program of Delegation; Wisconsin

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

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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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