[Federal Register Volume 62, Number 62 (Tuesday, April 1, 1997)]
[Rules and Regulations]
[Pages 15402-15404]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-8183]


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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

[[Page 15403]]

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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