3538 Federal Register / Vol. 60, No. 11 / Wednesday, January 18, 1995 / Rules and Regulations

SUMMARY: This action amends existing

Class E Airspace in the vicinity of

Rochester, NY, to provide additional

controlled airspace to increase the

effective utilization of airspace by air

traffic control in this vicinity.

EFFECTIVE DATE: 0901 U.T.C.; March 30,

1995.

FOR FURTHER INFORMATION CONTACT:

Frank Jordan, Designated Airspace

Specialist, System Management Branch

AEA–530, F.A.A. Eastern Region,

Fitzgerald Federal Building #111, John

F. Kennedy International Airport,

Jamaica, New York 11430; telephone:

(718) 553–0857.

SUPPLEMENTARY INFORMATION:

History

On July 30, 1993, the FAA proposed

to amend part 71 of the Federal Aviation

Regulations (14 CFR Part 71) to revise

the Class E Airspace (formerly

Transition Area) in the vicinity of

Rochester, NY (58 FR 43576). The

proposal would increase that amount of

controlled airspace needed by the FAA

for aircraft operating under instrument

flight rules.

Interested parties were invited to

participate in this rulemaking

proceeding by submitting written

comments on the proposal to the FAA.

No comments objecting to the proposal

were received.

Airspace Reclassification, in effect as

of September 16, 1993, has discontinued

the use of the term ‘‘Transition Area,’’

and airspace extending upward from

700 feet or more above the surface of the

earth is now Class E airspace. Except for

editorial changes, this amendment is the

same as that proposed in the notice. The

coordinates for this airspace docket are

based on North American Datum 83.

Class E airspace designations for

airspace extending upward from 700

feet or more above the surface of the

earth are published in Paragraph 6005 of

FAA Order 7400.9B, Airspace

Designations and Reporting Points,

dated July 18, 1994, and effective

September 16, 1994, which is

incorporated by reference in 14 CFR

71.1. The Class E airspace designation

listed in this document will be

published subsequently in the Order.

The Rule

This amendment to part 71 of the

Federal Aviation Regulations modifies

Class E airspace in the vicinity of

Rochester, NY, to provide additional

controlled airspace deemed necessary

by the FAA for aircraft operating under

instrument flight rules.

The FAA has determined that this

regulation only involves an established

body of technical regulations for which

frequent and routine amendments are

necessary to keep them operationally

current. Therefore, this regulation: (1) Is

not a ‘‘significant regulatory action’’

under Executive Order 12866; (2) is not

a ‘‘significant rule’’ under DOT

Regulatory Policies and Procedures (44

FR 11034; February 26, 1979); and (3)

does not warrant preparation of a

regulatory evaluation as the anticipated

impact is so minimal. Since this is a

routine matter that will only affect air

traffic procedures and air navigation, it

is certified that this rule will not have

a significant economic impact on a

substantial number of small entities

under the criteria of the Regulatory

Flexibility Act.

List of Subjects in 14 CFR Part 71

Airspace, Incorporation by reference,

Navigation (air).

Adoption of the Amendment

In consideration of the foregoing, the

Federal Aviation Administration

amends 14 CFR part 71 as follows:

PART 71—[AMENDED]

1. The authority citation for part 71

continues to read as follows:

Authority: 49 U.S.C. app. 1348(a), 1354(a),

1510; E.O. 10854, 24 FR 9565, 3 CFR, 1959–

1963 Comp., p. 389; 49 U.S.C. 106(g); 14 CFR

11.69.

§ 71.1 [Amended]

2. The incorporation by reference in

14 CFR 71.1 of the Federal Aviation

Administration Order 7400.9B, Airspace

Designations and Reporting Points,

dated July 18, 1994, and effective

September 16, 1994, is amended as

follows:

Paragraph 6005—Class E airspace areas

extending upward from 700 feet or more

above the surface of the earth

* * * * *

AEA NY E5 Rochester, NY [Revised]

Greater Rochester International Airport, NY

(Lat. 43°07′08′′ N., long. 77°40′21′′ W.)

BREIT NDB

(Lat. 43°07′35′′ N., long. 77°33′14′′ W.)

Rochester VORTAC

(Lat 43°07′15′′ N., long. 77°40′25′′ W.)

Geneseo VORTAC

(Lat. 42°50′04′′ N., long. 77°43′58′′ W.)

That airspace extending upward from 700

feet above the surface within a 7-mile radius

of the Greater Rochester International Airport

and within 3 miles each side of the Rochester

localizer east course extending from the 7-

mile radius to 10 miles east of the BREIT

NDB and within 4 miles each side of the 135°

bearing from the BREIT NDB extending from

the 7-mile radius to 11.3 miles southeast of

the NDB and within 3.5 miles each side of

the Rochester VORTAC 214° radial extending

from the 7-mile radius to 9.2 miles southwest

of the VORTAC and that airspace within a

20.5-mile radius of the Rochester VORTAC

beginning clockwise from the Rochester

VORTAC 189°(T) 198°(M) and Geneseo

VORTAC 195°(T) 204°(M) radials, extending

clockwise along the 20.5-mile radius to the

Rochester VORTAC 279°(T) 288°(M) radial.

* * * * *

Issued in Jamaica, New York, on December

29, 1994.

John S. Walker,

Manager, Air Traffic Division.

[FR Doc. 95–1140 Filed 1–17–95; 8:45 am]

BILLING CODE 4910–13–M

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.

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.
Federal Register / Vol. 60, No. 11 / Wednesday, January 18, 1995 / Rules and Regulations 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.
3540 Federal Register / Vol. 60, No. 11 / Wednesday, January 18, 1995 / Rules and Regulations

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

classification

Major

source

threshold

Offset

ratio

NOX provisions

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.

Extreme 1 10 tons

per year.

1.5 to 1 . Included.

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:

Area

classification

Major

source

threshold

Offset

ratio

Significance

level

Precursor

provisions

Moderate.100 tpy 1 to 1 15 tpy yes

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

2Wisconsin 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
Federal Register / Vol. 60, No. 11 / Wednesday, January 18, 1995 / Rules and Regulations 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 FederallyEnforceable 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 § 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
3542 Federal Register / Vol. 60, No. 11 / Wednesday, January 18, 1995 / Rules and Regulations

3The 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.

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

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.
Federal Register / Vol. 60, No. 11 / Wednesday, January 18, 1995 / Rules and Regulations 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-forprofit 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:

§ 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.
3544 Federal Register / Vol. 60, No. 11 / Wednesday, January 18, 1995 / Rules and Regulations

(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]

BILLING CODE 6560–50–P

40 CFR Part 52

[MN20–2–6751a; FRL–5135–7]

Approval and Promulgation of

Implementation Plans; Minnesota

AGENCY: Environmental Protection

Agency.

ACTION: Direct final rule.

SUMMARY: In this action, the United

States Environmental Protection Agency

(USEPA) is granting direct final

approval of proposed revisions to

Minnesota State Implementation Plan

(SIP) for sulfur dioxide (SO2) for the St.

Paul Park area of Air Quality Control

Region 131. The revisions were

contained in a formal submittal dated

December 11, 1992, and a formal

amendment submitted on September 30,

1994. USEPA’s action is based upon a

revision request which was submitted

by the State to satisfy the requirements

of the Clean Air Act.

DATES: This action will be effective

March 20, 1995, unless notice is

received by February 17, 1995, that

someone wishes to submit adverse or

critical comments. If the effective date is

delayed, timely notice will be published

in the Federal Register.

ADDRESSES: Written comments should

be addressed to: William L. MacDowell,

Chief, Regulation Development Section,

Air Enforcement Branch (AE–17J),

United States Environmental Protection

Agency, 77 West Jackson Boulevard,

Chicago, Illinois 60604.

Copies of the SIP revision request and

USEPA’s analysis are available for

public inspection during normal

business hours at the following

addresses: United States Environmental

Protection Agency, Region 5, Air and

Radiation Division, 77 West Jackson

Boulevard (AE–17J), Chicago, Illinois

60604; and Office of Air and Radiation

(OAR), Docket and Information Center

(Air Docket 6102) room M1500, United

States Environmental Protection

Agency, 401 M Street, SW., Washington,

DC 20460.

FOR FURTHER INFORMATION CONTACT:

Randy Robinson, Air Enforcement

Branch, Regulation Development

Section (AE–17J), United States

Environmental Protection, Region 5,

Chicago, Illinois 60604, (312) 353–6713.

SUPPLEMENTARY INFORMATION:

I. Summary of State Submittal

On December 11, 1992, the Minnesota

Pollution Control Agency (MPCA)

submitted proposed revisions to its SIP

for SO2 for the St. Paul Park area of Air

Quality Control Region 131. The

submittal also contained technical

information to support demonstration

and maintenance of the National

Ambient Air Quality Standards

(NAAQS) for SO2. On September 2,

1994 (59 FR 45653) the USEPA

proposed to disapprove the MPCA

submittal based on several

enforceability and attainment

demonstration issues. However, that

notice also stated that if the MPCA

adequately addressed the concerns

before the end of the 30-day comment

period, and if no other substantive,

adverse comments were received,

USEPA would proceed with a direct

final approval. On September 30, 1994,

the MPCA submitted a revised proposed

SIP, along with technical information,

addressing the issues raised in the

proposed disapproval. The notice of

proposed rulemaking (59 FR 45653)

contained a comprehensive discussion

of the history of the submittal, the

attainment demonstration, the

requirements of section 172 of the CAA,

42 U.S.C. 7502, and the issues identified

by USEPA concerning enforceability

and attainment demonstration aspects of

the submittal. This notice of direct final

rulemaking will summarize the major

items of the submittal as well as provide

information as to how the September 30,

1994, MPCA submittal addressed the

issues identified in the proposed

rulemaking.

Background

The USEPA published the designation

of AQCR 131 as a primary

nonattainment area for SO2 on March 3,

1978 (43 FR 8692). The MPCA

submitted a final SO2 plan on August 4,

1980. The USEPA published its final

rule approving and promulgating the

Minnesota Part D SIP for SO2 for AQCR

131 on April 8, 1981 (46 FR 20997).

AQCR 131, however, has not been

redesignated to attainment. The

promulgation of the Stack Height Rule

on July 8, 1985, required the MPCA to

review existing emission limitations to

determine if any sources were affected

by the new Rule. The MPCA determined

that Ashland Petroleum Company,

located in the St. Paul Park area of

AQCR 131, would require additional

permit revisions due to modeled

violations using the reduced creditable

stack heights.

In response to the modeled violations,

the MPCA submitted a proposed SIP

revision for SO2 for the St. Paul Park

area on December 11, 1992. The

submittal included an administrative

order for the Ashland Petroleum

Company-St. Paul Park Refinery, in

addition to dispersion modeling and

technical support intended to show that

the limits are sufficient to attain and

maintain the NAAQS for SO2. A

subsequent revision, containing an

amended administrative order for

Ashland Petroleum Company and

additional technical support, was

submitted on September 30, 1994.

II. Submittal Review Summary

This section will provide a summary

of USEPA’s review of the attainment

demonstration and administrative order

for Ashland Petroleum Company. A

more detailed description is contained

in the notice of proposed rulemaking

(59 FR 45653) and in the technical

support document associated with this

action.

Modeling Methodology

Section 172(c)(6) of the Clean Air Act

requires that plan revisions include

enforceable emission limitations and

other control measures, means or

techniques, necessary to provide for

attainment of the applicable NAAQS.

The State submittal demonstrated

attainment through the use of air

dispersion modeling. The primary

guidance for such demonstrations is the

‘‘Guideline on Air Quality Models

(Revised)’’ (1986), Supplement A (1987),

and Supplement B (1993), which

specifies the criteria for selection of

dispersion models and for estimation of

emissions and other model inputs. In

accordance with that guidance, the

dispersion modeling conducted for the

administrative order in the submittal

was performed using the Industrial