Federal Register / Vol. 77, No. 66 / Thursday, April 5, 2012 / Proposed Rules 20575 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2011–0501; FRL–9655–4] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Wisconsin; Forest County Potawatomi 

Community Reservation Class I Area 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: On May 12, 2011, the 

Wisconsin Department of Natural 

Resources (WDNR) submitted 

provisions affecting the Forest County 

Potawatomi Community (FCP 

Community) Class I Area for approval 

into the Wisconsin State 

Implementation Plan (SIP). The 

provisions include the regulation of 

sources constructing near the newly 

designated Class I Area, as well as 

procedures that the FCP Community 

must follow when providing a 

demonstration regarding a source that 

may have an adverse impact on the 

Class I Area. In this action, EPA 

proposes to approve the provisions into 

Wisconsin’s SIP. 

DATES: Comments must be received on 

or before May 7, 2012. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R05– 

OAR–2011–0501, by one of the 

following methods: 

1. www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

2. Email: damico.genevieve@epa.gov. 

3. Fax: (312) 582–5146. 

4. Mail: Genevieve Damico, Chief, Air 

Permits Section, Air Programs Branch 

(AR–18J), U.S. Environmental 

Protection Agency, 77 West Jackson 

Boulevard, Chicago, Illinois 60604. 

5. Hand Delivery: Genevieve Damico, 

Chief, Air Permits Section, Air Programs 

Branch (AR–18J), U.S. Environmental 

Protection Agency, 77 West Jackson 

Boulevard, Chicago, Illinois 60604. 

Such deliveries are only accepted 

during the Regional Office normal hours 

of operation, and special arrangements 

should be made for deliveries of boxed 

information. The Regional Office official 

hours of business are Monday through 

Friday, 8:30 a.m. to 4:30 p.m., excluding 

Federal holidays. 

Instructions: Direct your comments to 

Docket ID No. EPA–R05–OAR–2011– 

0501. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through www.regulations.gov 

or email. The www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means EPA will not know your 

identity or contact information unless 

you provide it in the body of your 

comment. If you send an email 

comment directly to EPA without going 

through www.regulations.gov your email 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional instructions on 

submitting comments, go to Section I of 

the SUPPLEMENTARY INFORMATION section 

of this document. 

Docket: All documents in the docket 

are listed in the www.regulations.gov 

index. Although listed in the index, 

some information is not publicly 

available, e.g., CBI or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in 

www.regulations.gov or in hard copy at 

the Environmental Protection Agency, 

Region 5, Air and Radiation Division, 77 

West Jackson Boulevard, Chicago, 

Illinois 60604. This facility is open from 

8:30 a.m. to 4:30 p.m., Monday through 

Friday, excluding Federal holidays. We 

recommend that you telephone Danny 

Marcus, Environmental Engineer, at 

(312) 353–8781 before visiting the 

Region 5 office. 

FOR FURTHER INFORMATION CONTACT: 

Danny Marcus, Environmental Engineer, 

Air Permits Section, Air Programs 

Branch (AR–18J), Environmental 

Protection Agency, Region 5, 77 West 

Jackson Boulevard, Chicago, Illinois 

60604, (312) 353–8781, 

marcus.danny@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. This supplementary information 

section is arranged as follows: 

I. What should I consider as I prepare my 

comments for EPA? 

II. Background 

III. What changes is EPA proposing to 

approve? 

IV. What action is EPA taking? 

V. Statutory and Executive Order Reviews 

I. What should I consider as I prepare 

my comments for EPA? 

1. Follow directions—EPA may ask 

you to respond to specific questions or 

organize comments by referencing a 

Code of Federal Regulations (CFR) part 

or section number. 

2. Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

3. Describe any assumptions and 

provide any technical information 

and/or data that you used. 

4. If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

5. Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

6. Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

7. Make sure to submit your 

comments by the comment period 

deadline identified. 

II. Background 

Redesignation of the Forest County 

Potawatomi Community 

On April 29, 2008, at 73 FR 23086, the 

Administrator granted the application of 

the FCP Community to obtain Class I 

redesignation of certain reservation 

lands from ‘‘Class II’’ to ‘‘Class I’’ under 

the Clean Air Act’s (CAA) Prevention of 

Significant Deterioration (PSD) Program. 

This rulemaking redesignated to Class I 

status lands held in trust for the FCP 

Community. At the same time, EPA 

published two actions resolving 

disputes with Wisconsin and Michigan 

under the CAA, in which those states 

had challenged the FCP Community’s 

application for Class I redesignation. 

The history of these dispute resolutions 

is discussed in detail in EPA’s April 29, 

2008, actions for the resolution of these 

two matters at 73 FR 23107 and 73 FR 

23111. The dispute resolution reached 

by Wisconsin and the FCP Community 

was formalized in a Memorandum of 

Agreement (MOA) which was signed in 

1999. 


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20576 Federal Register / Vol. 77, No. 66 / Thursday, April 5, 2012 / Proposed Rules 

The FCP Community and the State of 

Wisconsin Memorandum of Agreement 

The 1999 MOA provided a framework 

for establishing how the State and FCP 

Community would implement the Class 

I Area under their respective authorities. 

The provisions of the agreement became 

effective upon EPA’s final action to 

approve the FCP Community’s request 

for Class I redesignation. While EPA 

also was a signatory to the agreement, 

EPA’s role in the process was to 

acknowledge the agreement entered into 

by the parties on their own respective 

authorities. 

Section 164(e) of the CAA, provides 

that ‘‘If the [state and the Indian Tribe] 

do not reach agreement, the 

Administrator shall resolve the dispute 

and his determination or the results of 

the agreements reached through other 

means, shall become part of the 

applicable plan and shall be enforceable 

as part of such plan.’’ CAA section 

164(e), 42 U.S.C. 7474(e). The PSD 

program is implemented in Wisconsin 

under an EPA approved SIP that 

excludes all of Indian country within 

the State. Because the terms of the MOA 

set out requirements for sources locating 

outside the Class I Area, it is 

appropriate to implement these 

requirements through the SIP which 

applies to all areas excluding Indian 

country in Wisconsin. 73 FR 23114. 

These revisions are the subject of 

today’s proposal. 

Pursuant to the MOA, all major 

sources in Wisconsin that are located 

within a 10-mile radius of any 

redesignated FCP land must perform a 

Class I increment analysis and must 

meet the increment consumption 

requirements applicable to a Class I 

Area. Major sources located beyond the 

10-mile distance from redesignated 

lands must perform a Class II increment 

analysis and comply with the 

consumption requirements applicable to 

a Class II Area. Additionally, all major 

sources within 62 miles of the FCP 

Community’s Class I redesignated area 

must determine by an analysis whether 

their emissions will have an adverse 

impact on those Air Quality Related 

Values (AQRV) associated with that 

Class I Area. 

EPA takes the position that it 

generally will not interfere with the 

agreements reached between tribes and 

states through the CAA’s section 164(e) 

dispute resolution process. However, to 

the extent that the agreement reached 

under the terms of the MOA allows for 

restricting the requirements normally 

associated with Class I areas as these 

apply to sources located outside a 

10-mile radius of the redesignated 

reservation lands, EPA takes the 

position that a revision of the Wisconsin 

SIP is necessary to implement these 

provisions for potential sources located 

outside the boundaries of the 

redesignated parcels. In the absence of 

such modification to the Wisconsin SIP, 

the current PSD rules will apply to 

sources locating outside the Class I 

Area, and the provisions of the MOA 

would lack enforceability. 

Between 2008 and 2010, 

representatives from the FCP 

Community, WDNR, and EPA met and 

held discussions to determine how to 

translate the general principles of the 

MOA into implementable regulations. 

These discussions covered definition of 

the areas within which sources would 

be required to conduct the Class I and 

Class II increment analyses, notification 

procedures, and a state-tribal dispute 

resolution mechanism. Representatives 

for the FCP Community and WDNR then 

worked together to develop the 

necessary regulatory provisions. 

III. What changes is EPA proposing to 

approve? 

The regulatory revisions that 

Wisconsin has submitted for EPA’s 

approval include defining the 

geographic center of the FCP 

Community Class I Area for purposes of 

air quality management. Additionally, 

proposed new major sources or major 

modifications of existing sources 

locating within 22.25 miles of the 

geographic center of the FCP 

Community Class I Area must conduct 

a Class I increment analysis and are 

subject to Class I consumption limits. 

Proposed new major sources or major 

modifications of existing sources 

locating outside 22.25 miles of the 

geographic center of the FCP 

Community Class I Area must conduct 

a Class II increment analysis and are 

subject to Class II consumption limits. 

The rules also include procedures for 

the FCP Community to coordinate with 

the state regarding comments on sources 

potentially impacting the Class I Area 

and to make a demonstration to the state 

that a proposed source may have an 

adverse effect on AQRVs. Finally, the 

rules provide the FCP Community with 

the opportunity to review certain best 

available control technology (BACT) 

and maximum achievable control 

technology (MACT) determinations 

made by the State, and provide a 

dispute resolution mechanism for 

resolving disagreements regarding 

BACT or MACT determinations for 

certain new or modified sources. The 

rules proposed for approval are as 

follows: 

NR 400.02 (66m) ‘‘Forest County 

Potawatomi Community Class I Area’’ or 

‘‘FCPC Class I Area’’ 

Means those land parcels of the Forest 

County Potawatomi Reservation that are 

designated as a non-Federal Class I Area 

by EPA under 40 CFR 52.2581. The FCP 

Community Class I Area has a 

geographic center, as determined by the 

department, at latitude 45.49978° N, 

longitude 88.64377° W. 

NR 405.19 ‘‘Forest County Potawatomi 

Class I Area.’’ 

(1) For any new major source or major 

modification of an existing source, the 

FCP Community shall have the 

opportunity to present to the 

department, within no more than 75 

days of receipt of a complete permit 

application by the department, a 

demonstration that the emissions from 

the proposed new major source or major 

modification would have an adverse 

impact on the established air quality 

related values of the FCP Community 

Class I Area. 

(2) New major sources or major 

modifications of existing sources wholly 

or partially locating or located within a 

radius of 22.25 miles from the 

geographic center of the FCP 

Community Class I Area, as identified in 

s. NR 400.02 (66m), are subject to an 

increment analysis and limited to the 

maximum allowable increase levels of a 

Class I Area. 

(3) New major sources or major 

modifications of existing sources 

locating or located wholly outside the 

area defined in sub. (2) are subject to an 

increment analysis and maximum 

allowable increase levels of a Class II 

Area. 

NR 406.08 ‘‘Action on permit 

applications.’’ 

(4)(a) The FCP Community shall have 

the opportunity to review BACT or 

MACT determinations made by the 

department for any new or modified 

source that is either of the following: 

1. Wholly or partially locating or 

located within a radius of 22.25 miles 

from the geographic center of the FCP 

Community Class I Area, as identified in 

s. NR 400.02 (66m). 

2. Wholly or partially locating or 

located within 62 miles of the FCP 

Community Class I Area, and has a 

modeled impact exceeding 1 microgram 

per cubic meter averaged over any 24- 

hour period for mercury or for any 

regulated pollutant that has an ambient 

air quality standard in s. NR 404.04. 

(b) Disagreements between the 

department and the FCP Community 

regarding BACT or MACT 

determinations are subject to dispute 

resolution but the department shall act 


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Federal Register / Vol. 77, No. 66 / Thursday, April 5, 2012 / Proposed Rules 20577 

on a permit application according to 

time period requirements under ss. 

285.61 and 285.62, Stats. 

IV. What action is EPA taking? 

EPA is proposing to approve 

Wisconsin’s May 12, 2001, submittal, 

relating to provisions impacting the FCP 

Community Class I Area. Specifically, 

Wisconsin’s submittal defines the 

geographic center of the FCP 

Community Class I Area, establishes 

requirements for sources which may 

potentially impact the FCP Community 

Class I Area, provides the FCP 

Community the opportunity to review 

certain BACT and MACT 

determinations, and establishes a 

dispute resolution process for issues 

that may arise between the FCP 

Community and the State. The 

provisions proposed for approval into 

Wisconsin’s SIP include: NR 

400.02(66m), NR 405.19, and NR 

406.08(4). 

EPA has made the preliminary 

determination that the SIP submittal is 

approvable because EPA takes the 

position that it generally will not 

interfere with the agreements reached 

between Tribes and States through the 

CAA’s section 164(e) dispute resolution 

process, which provides that the results 

of such agreements will become part of 

the appropriate applicable plan. EPA’s 

2008 rulemaking anticipated that 

revisions to the Wisconsin SIP would be 

needed to fully implement the 1999 

MOA between the State and the FCP 

Community. 

V. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely approves state law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. In May 2011, EPA issued its 

policy on consultation and coordination 

with Indian tribes. EPA explained that 

its policy is to consult on a governmentto-government basis with Federally 

recognized tribal governments when 

EPA actions and decisions may affect 

tribal interests. Accordingly, EPA 

engaged in consultation with the FCP 

Community regarding the Wisconsin 

proposed SIP revisions. 

The Wisconsin proposed SIP 

revisions which define the FCP 

Community’s Class I Area, and which 

define those sources that are required to 

conduct Class I and Class II increment 

analysis, and which provide for the FCP 

Community’s participation in certain 

BACT or MACT determinations will all 

enable the FCP Community and 

Wisconsin to work together to 

cooperatively implement the FCP 

Community’s Class I Area, which is an 

integral part of the FCP Community’s 

goal of exercising control over 

reservation resources to better protect 

the members of the FCP Community. 

In the process of reviewing the 

proposed Wisconsin SIP revisions, EPA 

consulted with FCP Community tribal 

officials to permit them to have 

meaningful and timely input into the 

Agency’s review. EPA consulted with 

representatives of the FCP Community 

prior to proposing to approve the 

Wisconsin SIP revision. During this 

consultation, EPA explained the 

provisions included in the proposed 

Wisconsin SIP revision and answered 

questions. EPA intends to keep the FCP 

Community informed of the progress of 

this proposed SIP approval. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Sulfur oxides, Volatile organic 

compounds. 

Dated: March 26, 2012. 

Susan Hedman, 

Regional Administrator, Region 5. 

[FR Doc. 2012–8207 Filed 4–4–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2012–0214; FRL–9655–3] 

Approval and Promulgation of Air 

Quality Implementation Plans; Indiana; 

Central Indiana (Indianapolis) Ozone 

Maintenance Plan Revision to 

Approved Motor Vehicle Emissions 

Budgets 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

Indiana’s request to revise its Central 

Indiana 1997 8-hour ozone maintenance 

air quality State Implementation Plan 

(SIP) by replacing the previously 

approved motor vehicle emissions 

budgets (budgets) with budgets 

developed using EPA’s Motor Vehicle 

Emissions Simulator (MOVES) 2010a 

emissions model. The Central Indiana 

1997 8-hour ozone maintenance area 

consists of Marion, Boone, Hendricks, 

Morgan, Johnson, Shelby, Hancock, 

Madison, and Hamilton Counties in 

Indiana. Indiana submitted this request 

to EPA for parallel processing on March 

2, 2012. 

DATES: Comments must be received on 

or before May 7, 2012. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R05– 

OAR–2012–0214, by one of the 

following methods: 


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