[Federal Register Volume 60, Number 11 (Wednesday, January 18, 1995)]
[Rules and Regulations]
[Pages 3538-3544]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-1085]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

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


Approval and Promulgation of Implementation Plan for Wisconsin

AGENCY: United States Environmental Protection Agency (USEPA).

ACTION: Direct final rule.

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SUMMARY: USEPA approves the State implementation plan (SIP) revisions 
submitted by the State of Wisconsin for the purpose of meeting 
requirements of the Clean Air Act (ACT) with regard to new source 
review in areas that have not attained the national ambient air quality 
standards (NAAQS). The implementation plan revisions were submitted by 
the State to satisfy certain Federal requirements for an approvable 
nonattainment new source review SIP for Wisconsin.
    This action also approves Wisconsin's Operating Permits rule as 
satisfying the requirements given in the Federal Register of June 28, 
1989, for establishing federally enforceable State operating permits 
(FESOP). USEPA is approving Wisconsin's operating permits program for 
the purpose of creating federally enforceable limitations on the 
potential to emit of certain pollutants, including those regulated 
under sections 110, 111, and 112 of the Clean Air Act.

DATES: This action will be effective February 17, 1995, unless adverse 
or critical comments are received by February 17, 1995. If the 
effective date is delayed, timely notice will be published in the 
Federal Register.

ADDRESSES: Comments can be mailed to Carlton Nash, Chief, Regulation 
Development Section, Air Toxics and Radiation Branch, United States 
Environmental Protection Agency, 77 West Jackson Boulevard (AT-18J), 
Chicago, Illinois 60604. [[Page 3539]] 
    Copies of the State's submittal and USEPA's technical support 
documents are available for inspection during normal business hours at 
the following locations:
    United States Environmental Protection Agency, Region 5, Air and 
Radiation Division, 77 West Jackson Boulevard (AT-18J), Chicago, 
Illinois 60604; and
    Wisconsin Department of Natural Resources, 101 South Webster 
Street, P.O. Box 7921, Madison, Wisconsin 53707.
    A copy of this SIP revision is also available at the following 
location:
    Office of Air and Radiation, Docket and Information Center (Air 
Docket 6102), room M1500, USEPA, 401 M Street, SW., Washington, DC 
20460.

FOR FURTHER INFORMATION CONTACT: Constantine Blathras, USEPA (AT-18J), 
77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-0671.

SUPPLEMENTARY INFORMATION:

I. Background

    The air quality planning requirements for nonattainment new source 
review are set out in part D of subchapter I of the ACT. USEPA issued a 
``General Preamble'' describing USEPA's preliminary views on how USEPA 
intends to review SIPs and SIP revisions submitted under part D, 
including those State submittals containing nonattainment area new 
source review (NSR) SIP requirements (see 57 FR 13498 (April 16, 1992) 
and 57 FR 18070 (April 28, 1992)). Because USEPA is describing its 
interpretations here only in broad terms, the reader should refer to 
the General Preamble for a more detailed discussion of the 
interpretations of part D advanced in this action and the supporting 
rationale.

II. The Wisconsin New Source Review Rules

    Section 110(k) of the ACT sets out provisions governing USEPA's 
review of SIP submittals (see 57 FR 13565-13566).

A. Analysis of State Submission

1. Submittal Information
    Wisconsin's initial NSR plan in response to the 1990 Amendments to 
the ACT was submitted to USEPA on November 15, 1992 as a proposed 
revision to the SIP. This submittal consisted of a set of statutory 
changes, and a temporary rule which was in effect for 180 days from 
November 15, 1992 and a draft of a permanent rule. The State of 
Wisconsin held a public hearing on December 1, 1992 to entertain public 
comment on this submittal. On January 15, 1993, Wisconsin submitted 
materials related to the public comments it received. On July 28, 1993, 
Wisconsin submitted its permanent NSR rule, Natural Resources (NR) 408, 
Wisconsin Administrative Code, Nonattainment Area Major Source Permits 
superseding the temporary rule previously submitted. On January 14, 
1994, Wisconsin submitted changes and revisions to NR 400, Air 
Pollution Control Definitions, NR 406, Construction Permits, and NR 
490, Procedures for Noncontested Case Public Hearings. USEPA is 
approving statutory changes as well as NR 400, 406, 408, and 490. These 
are discussed further as follows and in the technical support documents 
for this SIP revision.
    USEPA reviewed the November 15, 1992 and July 28, 1993 SIP revision 
submittals to determine completeness, in accordance with the 
completeness criteria set out at 40 CFR part 51, appendix V (1991), as 
amended by 57 FR 42216 (August 26, 1991). These submittals were found 
to be complete on August 31, 1993, and USEPA forwarded a letter dated 
August 31, 1993 to the Wisconsin Department of Natural Resources (WDNR) 
Bureau of Air Management Director indicating the completeness of the 
submittals and the next steps to be taken in the review process.
2. General Nonattainment NSR Requirements
    The statutory requirements for nonattainment new source review SIPs 
and permitting are found at sections 172 and 173. A listing of these 
provisions and how Wisconsin's rules meet them follows.
    a. Provisions to assure that new source growth does not interfere 
with reasonable further progress (RFP) for the area and that 
calculation of emissions offsets are based on the same emissions 
baseline used in the demonstration of RFP. Wisconsin has met this 
requirement in NR 408.05 and NR 408.06(f).
    b. Provisions according to section 173(c)(1) to allow offsets to be 
obtained in another nonattainment area if: the area in which the 
offsets are obtained has an equal or higher nonattainment 
classification; and emissions from the nonattainment area in which the 
offsets are obtained contribute to a NAAQS violation in the area in 
which the source would construct. Wisconsin has met this requirement in 
NR 408.06(2).
    c. Provisions to assure, pursuant to section 173(c)(1), that any 
emissions offsets obtained in conjunction with the issuance of a permit 
to a new or modified source are in effect and enforceable by the time 
the new or modified source is to commence operation. Wisconsin has met 
this requirement in NR 408.06(g).
    d. Provisions to assure that emissions increases from new or 
modified major stationary sources are offset by reductions in actual 
emissions as required by section 173(c)(1). Wisconsin has met this 
requirement in NR 408.06(3).
    e. Provisions, pursuant to section 173(c)(2), to prevent emissions 
reductions otherwise required by the ACT from being credited for 
purposes of satisfying the part D offset requirements. Wisconsin has 
met this requirement in NR 408.06(1)(g) NR 408.06(9).
    f. Provisions reflecting changes in growth allowances, pursuant to 
sections 172(c)(4), 173(a)(1)(B) and 173(b); specifically, the 
elimination of existing growth allowances in any nonattainment area 
that received a notice prior or subsequent to the Amendments that the 
SIP was substantially inadequate; and the restrictions of growth 
allowances to only those portions of nonattainment areas formally 
targeted as special zones for economic growth. Wisconsin does not have 
any growth allowances.
    g. Provisions, pursuant to section 173(a)(5), that, as a 
prerequisite to issuing any part D permit, require an analysis of 
alternative sites, sizes, production processes, and environmental 
control techniques for proposed sources that demonstrates that the 
benefits of the proposed source significantly outweigh the 
environmental and social costs imposed as a result of its location, 
construction, or modification. Wisconsin has met this requirement in NR 
408.08(2).
    h. Provisions for supplying control technology information from 
nonattainment new source review permits to USEPA for inclusion in the 
Reasonably Available Control Technology (RACT)/Best Available Control 
Technology (BACT)/Lowest Achievable Emission Rate (LAER) clearinghouse, 
pursuant to section 173(d). WDNR has met this requirement in NR 
408.04(7) and has committed to report determinations to the RACT/BACT/
LAER clearinghouse in the annual WDNR Air Management Program Workplan.
    i. Provisions pursuant to section 173(e) that allow any existing or 
modified source that tests rocket engines or motors to use alternative 
or innovative means to offset emissions increases from firing and 
related cleaning, if the four conditions set forth therein are met. 
Wisconsin has no such sources or activities in the State. 
[[Page 3540]] 
    j. Provisions, pursuant to section 819, Public Law 101-549 (note to 
42 U.S.C. 7511) that effectively exempt activities related to stripper 
wells from the new NSR requirements of new Subparts 2, 3, and 4 for 
particulate matter (PM), ozone, or carbon monoxide (CO) nonattainment 
areas classified as serious or less, and having a population of less 
than 350,000. No exclusion is provided for PM, ozone, or CO serious 
nonattainment areas having a population of 350,000 or more, or in 
severe and extreme ozone nonattainment areas. The general NSR 
provisions of sections 172 and 173 of part D still apply. There are no 
stripper well activities in Wisconsin.
    k. Provisions, pursuant to section 328, to assure that sources 
located on the outer continental shelf (OCS) are subject to the same 
requirements as would be applicable if the source were located in the 
corresponding onshore area. Wisconsin is not located on the OCS.
    l. A definition of ``stationary source'' reflecting Congressional 
intent, as set forth in section 302(z), that certain internal 
combustion engines subject to control under State programs, but 
excluding the newly defined category of ``nonroad engines''. Wisconsin 
has met this requirement in NR 400.02(96) and section 144.30(23), 91-92 
Wisconsin Statutes.
    m. Exemptions from nonattainment new source review provisions, 
pursuant to section 415(b)(2), for installation, operation, cessation, 
or removal of a temporary clean coal technology demonstration project. 
Such projects must still comply with any applicable SIP and all other 
requirements for the attainment and maintenance of NAAQS. Wisconsin has 
met this requirement in NR 408.02(20)(e)(9).
    n. Provisions, pursuant to section 173(a)(3), to assure that owners 
or operators of each proposed new or modified major stationary source 
demonstrate that all other major stationary sources under the same 
ownership in the State are in compliance, or on a schedule for 
compliance, with the Clean Air Act. Wisconsin has met this requirement 
in NR 408.08(1).
3. Ozone Nonattainment NSR Requirements
    According to section 172(c)(5), SIPs must require permits for the 
construction and operation of new or modified major stationary sources. 
The statutory permit requirements for ozone nonattainment areas are 
generally contained in revised section 173, and in subpart 2 of part D. 
These are the minimum requirements that States must include in an 
approvable implementation plan. For all classifications of ozone 
nonattainment areas and for ozone transport regions, States must adopt 
the appropriate major source thresholds and offset ratios, and must 
adopt provisions to ensure that any new or modified major stationary 
source of nitrogen oxides (NO<INF>X) satisfies the requirements 
applicable to any major source of volatile organic compounds (VOC), 
unless a special NO<INF>X 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 NO<INF>X major 
stationary sources as follows:

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       Area           Major source                                      
  classification       threshold        Offset ratio     NO<INF>X provisions 
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Marginal.........  100 tons per year  1.1 to 1........  Included.       
Moderate.........  100 tons per year  1.15 to 1.......  Included.       
Serious..........  50 tons per year.  1.2 to 1........  Included.       
Severe...........  25 tons per year.  1.3 to 1........  Included.       
Extreme<SUP>1.........  10 tons per year.  1.5 to 1........  Included.       
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<SUP>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 SO<INF>2, NO<INF>X, and VOC).
    Wisconsin has established major source thresholds in NR 
408.02(21)(a), offset ratios in NR 408.06(3), modification significance 
levels in NR 408.02(32)(a)5, and PM precursor provisions in NR 
408.02(21)(a & d), NR 408.02(32)(g & h), and NR 408.03(4) as follows:

------------------------------------------------------------------------
                              Major                                     
   Area classification       source     Offset  Significance   Precursor
                            threshold   ratio       level     provisions
------------------------------------------------------------------------
Moderate.................  100 tpy...  1 to 1.  15 tpy......  yes       
Serious\2\...............  70 tpy....  1 to 1.  10 tpy......  yes       
------------------------------------------------------------------------
\2\Wisconsin does not have a serious PM nonattainment area.             

6. Sulfur Dioxide Nonattainment NSR Requirements
    The statutory permit requirements for SO<INF>2 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 SO<INF>2 nonattainment areas, 
States must adopt the appropriate major source threshold, offset ratio, 
and significance level for modifications.
    Wisconsin has established a major source threshold of 100 tpy in NR 
408.02(21)(a), an offset ratio of 1 to 1 in [[Page 3541]] NR 408.06(3), 
and a modification significance level of 40 tpy in NR 408.02(32)(a)3.
7. Lead Nonattainment NSR Requirements
    The statutory permit requirements for lead nonattainment areas are 
generally contained in section 173, and in Subpart 5 of part D. These 
are the minimum requirements that States must include in an approvable 
implementation plan. For lead nonattainment areas, States must adopt 
the appropriate major source threshold, offset ratio, and significance 
level for modifications.
    Wisconsin has established a major source threshold of 100 tpy NR in 
408.02(21)(a), an offset ratio of 1 to 1 in NR 408.06(3), and a 
modification significance level of 0.6 tpy in NR 408.02(32)(a)6.
    After consideration of the material submitted by the State of 
Wisconsin, USEPA has determined that the Wisconsin New Source Review 
rules revision satisfy the requirements for nonattainment new source 
review SIPs and permitting.

III. The Wisconsin Operating Permit Program

    For many years, Wisconsin has been issuing permits for major new 
sources and for major modifications of existing sources. Throughout 
this time, Wisconsin has also been issuing permits establishing 
limitations on the potential to emit from new sources so as to avoid 
major source permitting requirements. This latter type of permitting 
has been the subject of various guidance from the USEPA, including the 
memoranda entitled ``Guidance on Limiting Potential to Emit in New 
Source Permitting'' dated June 13, 1989, ``Limitation of Potential to 
Emit with Respect to Title V Applicability Thresholds'' dated September 
18, 1992, and ``Approaches to Creating Federally-Enforceable Emissions 
Limits'' dated November 3, 1993.
    The advent of operating permits pursuant to Title V of the ACT 
Amendments of 1990 has created interest in mechanisms for limiting 
sources' potential to emit, thereby allowing the sources to avoid being 
defined as ``major'' with respect to the Federal operating permits 
programs. A key mechanism for such limitations is the use of FESOPs. 
USEPA has issued guidance on FESOPs in the Federal Register of June 28, 
1989 (54 FR 27274). Since operating permits are issued pursuant to a 
program approved by USEPA, these permits will also be enforceable by 
citizens pursuant to section 304 of the ACT.
    On January 14, 1994, WDNR submitted the regulations, statutory 
changes, and administrative framework for the Operation Permits rule, 
NR 407, as a revision to its permit SIP. This SIP revision submittal is 
needed in order to make conditions in construction and operating 
permits federally enforceable and to create synthetic minor sources. 
USEPA is approving this program as meeting the five criteria 
articulated in the June 28, 1989 Federal Register notice for State 
operating permit programs to establish federally enforceable limits on 
potential to emit.

First Criterion

    ``The state operating permit program (i.e., the regulations or 
other administrative framework describing how such permits are issued) 
is submitted and approved by USEPA into the SIP.''
    On January 14, 1994, WDNR submitted the regulations and 
administrative framework for the Operation Permits rule, NR 407, as a 
revision to its permit SIP. USEPA's approval of this section provides 
legal support for the operating permit program and satisfies the first 
criterion.

Second Criterion

    ``The SIP imposes a legal obligation that operating permit holders 
adhere to the terms and limitations of such permits (or subsequent 
revisions of the permit made in accordance with the approved operating 
permit program) and provides that permits which do not conform to the 
operating permit program requirements and the requirements of USEPA's 
underlying regulations may be deemed not `federally enforceable' by 
USEPA.''
    NR 407.09(1)(f)1 states that, ``Any noncompliance with the 
operation permit constitutes a violation of the statutes and is grounds 
for enforcement action; for permit suspension, revocation or revision; 
or, if applicable under Sec. 144.3925(6) Wisconsin Statues, for denial 
of a permit renewal application.'' This satisfies the initial part of 
the second approval criterion in that the operating permit holder is 
considered in violation of the code if the holder does not abide by the 
permit conditions.
    The latter part of the second approval criterion requires that the 
SIP have provisions which allow USEPA to deem a permit not ``federally 
enforceable'' under certain conditions. NR 400.02(39m) defines 
``federally enforceable'' as ``all limitations and conditions which are 
enforceable by the Administrator of the U.S. Environmental Protection 
Agency, * * * and requirements in operating permits issued pursuant to 
NR 407 and title V of the Federal clean air act which are designated as 
federally enforceable.'' Under NR 407.09(3), all terms and conditions 
in an operation permit, including any provisions designed to limit a 
stationary sources potential to emit, are enforceable by the 
Administrator under section 113(a) of the ACT. In approving the State 
operating permit, USEPA is determining that Wisconsin's program allows 
USEPA to deem an operating permit not ``federally enforceable'' for 
purposes of limiting potential to emit and to offset creditability. 
Such a determination will (1) be done according to appropriate 
procedures, and (2) be based upon the permit, permit approval 
procedures or permit requirements which do not conform with the 
operating permit program requirements and the requirements of USEPA's 
underlying regulations. Based on this interpretation of Wisconsin's 
program, USEPA finds that the second criterion for approving an 
operating permit program has been met by the State.

Third Criterion

    ``The State operating permit program requires that all emissions, 
limitations, controls and other requirements imposed by such permits, 
will be at least as stringent as any other applicable limitation or 
requirement contained in the SIP or enforceable under the SIP, and that 
the program may not issue permits that waive, or make less stringent, 
any limitation or requirement contained in or issued pursuant to the 
SIP, or that are otherwise `federally enforceable' (e.g., standards 
established under sections 111 and 112 of the Act).''
    Under NR 407.09(3)(b), the department shall specifically designate 
as not federally enforceable under the Act any terms and conditions 
included in the permit that are not required under the Act, under the 
Act's applicable requirements or under the SIP. This provision requires 
that State permits comply with the provisions of the ACT and Federal 
regulations adopted pursuant to the ACT. Based on these provisions, 
USEPA has determined that the State authority to grant permits is 
properly restrained by the terms of the SIP, as required by the third 
criterion.

Fourth Criterion

    ``The limitations, controls, and requirements in the operating 
permits are permanent, quantifiable and otherwise enforceable as a 
practical matter.''
    USEPA has reviewed the Wisconsin operating permit program and is 
[[Page 3542]] satisfied that it requires the State to issue permits 
which meet the requirements of this provision. While the permits do 
expire, the conditions they impose must be complied with during the 
entire term of the permit as well as during the transition to a renewal 
permit. NR 407.04(2) states that no permittee may continue operation of 
a source after the operation permit expires, unless the permittee 
submits a timely and complete application for renewal of the permit. 
Subsequently, NR 407.09(1)(f)1 requires the permittee to comply with 
all conditions of the permit provisions. The operating permit program 
provisions meet the fourth criterion for permit program approval.

Fifth Criterion

    ``The permits are issued subject to public participation.'' This 
means that the State agrees, as a part of its program, to provide USEPA 
and the public with timely notice of the proposed issuance of such 
permits, and to provide USEPA, on a timely basis, with a copy of each 
proposed (or draft) and final permit intended to be federally 
enforceable.
    Wisconsin's rules governing public participation in the air permit 
program for major sources in nonattainment areas are found in NR 407.07 
and section 144.3925 of the 91-92 Wisconsin Statutes. These rules 
provide for public notification prior to permit issuance and an 
opportunity for public comment. The pubic comment procedure and 
commitments to follow them in issuing operating permits, which were 
submitted by the WDNR, are approvable as meeting the fifth criterion.
    Wisconsin's operating permit regulation not only applies to 
criteria pollutants, but also to other air contaminants. Some of these 
are or will be regulated by sections 111 and 112 of the ACT. Thus, 
USEPA is also approving under section 112(l) of the ACT Wisconsin's 
State operating permits program for the purposes of creating federally 
enforceable limitations on the potential to emit Hazardous Air 
Pollutants (HAPs) regulated under section 112 of the ACT.
    The June 28, 1989 document provided that USEPA would approve a 
State operating permit program into a SIP for the purpose of 
establishing federally enforceable limits on a source's potential to 
emit if the program met five specific requirements. This action, 
because it was written prior to the 1990 amendments to section 112, 
mainly addressed SIP programs to control criteria pollutants. Federally 
enforceable limits on criteria pollutants (i.e., VOCs or PM) may have 
the incidental effect of limiting certain HAPs listed pursuant to 
section 112(b). This situation would occur when a pollutant classified 
as a HAP is also classified as a criteria pollutant.<SUP>3

    \3\The USEPA intends to issue guidance addressing the technical 
aspects of how these criteria pollutant limits may be recognized for 
purposes of limiting a source's potential to emit of HAP to below 
section 112 major source levels.
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    USEPA has determined that the five approval criteria for approving 
FESOP programs into the SIP, as specified in the June 28, 1989 Federal 
Register document and discussed above, are also appropriate for 
evaluating and approving the programs under Section 112(l). The June 
28, 1989 document did not address HAPs because it was written prior to 
the 1990 amendments to section 112 and not because it established 
requirements unique to criteria pollutants. Hence, the five criteria 
are applicable to FESOP approvals under section 112(l).
    In addition to meeting the criteria in the June 28, 1989 document, 
a FESOP program must meet the statutory criteria for approval under 
section 112(l)(5). section 112(l) allows USEPA to approve a program 
only if it (1) contains adequate authority to assure compliance with 
any Section 112 standards or requirements, (2) provides for adequate 
resources, (3) provides for an expeditious schedule for assuring 
compliance with section 112 requirements, and (4) is otherwise likely 
to satisfy the objectives of the Act.
    USEPA plans to codify the approval criteria for programs limiting 
potential to emit HAPs in subpart E of part 63, the regulations 
promulgated to implement section 112(l) of the Act. USEPA currently 
anticipates that these criteria, as they apply to FESOP programs, will 
mirror those set forth in the June 28, 1989 document, with the addition 
that the State's authority must extend to HAPs in addition to 
pollutants such as VOCs and PM. USEPA currently anticipates that FESOP 
programs that are approved pursuant to section 112(l) prior to the 
subpart E revisions will have had to meet these criteria, and hence, 
will not be subject to any further approval action.
    Regarding the statutory criteria under section 112(l), USEPA 
believes that Wisconsin's FESOP program contains authority to assure 
compliance with section 112 requirements because the third criterion of 
the June 28, 1989 document is met, since the program does not provide 
for waiving any section 112 requirement. Sources would still be 
required to meet section 112 requirements applicable to nonmajor 
sources. Regarding adequate resources, Wisconsin has included in its 
request for approval under section 112(l) a commitment to provide 
adequate resources to implement and enforce the program. Fees will be 
collected from FESOP sources through both the Title V and FESOP 
process. Sources applying through the FESOP program will be charged a 
fee based upon actual emissions. Because the processing of a FESOP 
permit consumes considerably less resources than the processing of a 
Title V permit, the State believes that sufficient resources will be 
available to administer FESOP permits for those who request and 
qualify. USEPA believes this mechanism will be sufficient to provide 
for adequate resources to implement this program, and will monitor the 
State's implementation of the program to assure that adequate resources 
continue to be available.
    Wisconsin's FESOP program also meets the requirement for an 
expeditious schedule for assuring compliance. A source seeking a 
voluntary limit on potential to emit is probably doing so to avoid a 
Federal requirement applicable on a particular date. Nothing in this 
program would allow a source to avoid or delay compliance with the 
Federal requirement if it fails to obtain the appropriate federally 
enforceable limit by the relevant deadline. Finally, Wisconsin's FESOP 
program is consistent with the objectives of the section 112 program 
since its purpose is to enable sources to obtain federally enforceable 
limits on potential to emit to avoid major source classification under 
section 112. USEPA believes this purpose is consistent with the overall 
intent of section 112.
    After consideration of the material submitted by the State of 
Wisconsin, USEPA has determined that the Wisconsin Operating Permit 
Program satisfies the five criteria needed to establish federal 
enforceability of State operating permits, published in the Federal 
Register on June 28, 1989 (54 FR 27274), and the four additional 
criteria of section 112(l) of the ACT. USEPA approves the incorporation 
of this program into the SIP for the proposes of issuing federally 
enforceable operating permits. Therefore, emissions limitations and 
other provisions contained in operating permits issued by the State in 
accordance with the applicable Wisconsin SIP provisions, approved 
herewith, shall be federally enforceable by USEPA, and by any person in 
the same manner as other requirements of the SIP. [[Page 3543]] 

IV. This Action

    USEPA approves the plan revisions submitted on November 15, 1992, 
January 15, 1993, July 28, 1993 and January 14, 1994, to implement the 
new source review provisions of part D and Operating Permits program. 
Each of the program elements mentioned above were properly addressed. 
This rule will become effective on February 17, 1995. However, if we 
receive notice by February 17, 1995, that someone wishes to submit 
adverse comments, then USEPA will publish: (1) A document that 
withdraws the action, and (2) a document that begins a new rulemaking 
by proposing the action and establishing a comment period. USEPA is 
publishing this action without prior proposal because the Agency views 
this as a noncontroversial amendment and anticipates no adverse 
comments. However, in a separate document in this Federal Register, 
USEPA is proposing to approve the SIP revision should adverse or 
critical comments be filed. This action will be effective February 17, 
1995, unless, within 30 days of its publication, adverse or critical 
comments are received.
    If USEPA receives such comments, this action will be withdrawn 
before the effective date by publishing a subsequent action that will 
withdraw the final action. All public comments received will then be 
addressed in a subsequent final rule based on this action serving as a 
proposed rule. USEPA will not institute a second comment period on this 
action. Any parties interested in commenting on this action should do 
so at this time. If no such comments are received, the public is 
advised that this action will be effective February 17, 1995.
    This action has been classified as a Table 2 Action by the Regional 
Administrator under the procedures published in the Federal Register on 
January 19, 1989 (54 FR 2214-2225). The OMB has exempted this action 
from review under Executive Order 12866.
    Nothing in this action should be construed as permitting, allowing 
or establishing a precedent for any future request for revision to any 
SIP. USEPA shall consider each request for revision to the SIP in light 
of specific technical, economic, and environmental factors and in 
relation to relevant statutory and regulatory requirements.
    Under Executive Order 12866, 58 FR 51735 (October 4, 1993), USEPA 
must determine whether the regulatory action is ``significant'' and 
therefore subject to OMB review and the requirements of the Executive 
Order. The Order defines ``significant regulatory action'' as one that 
is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, of State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    OMB has exempted this regulatory action from E.O. 12866 review.

V. Regulatory Flexibility

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., USEPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternately, USEPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    SIP approvals under section 110 and subchapter I, part D, of the 
Act do not create any new requirements, but simply approve requirements 
that the State is already imposing. Therefore, because the Federal SIP 
approval does not impose any new requirements, I certify that it does 
not have a significant impact on any small entities affected. Moreover, 
due to the nature of the Federal-State relationship under the Act, 
preparation of a regulatory flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of State action. The 
ACT forbids USEPA to base its actions concerning SIPs on such grounds. 
Union Electric Co. v. USEPA, 427 U.S. 246, 256-66 (1976).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur dioxide, Volatile organic compounds.

    Dated: December 16, 1994.
Valdas V. Adamkus,
Regional Administrator.

    For the reasons set out in the preamble, part 52, chapter 1, title 
40 of the Code of Federal Regulations is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart YY--Wisconsin

    2. Section 52.2570 is amended by adding paragraphs (c) (75) and 
(76) to read as follows:


Sec. 52.2570  Identification of plan.

* * * * *
    (c) * * *
    (75) On November 15, 1992, January 15, 1993, July 28, 1993, and 
January 14, 1994 the State of Wisconsin submitted emergency and 
permanent rules for issuance of New Source Review permits for new and 
modified air pollution sources in nonattainment areas, as required by 
section 182(a)(2)(c) of the Clean Air Act. The emergency rules have now 
been superseded by the permanent rules to clarify and specify the NSR 
requirements that sources must meet under the Clean Air Act. Also 
submitted were portions of 1991 Wisconsin Act 302.
    (i) Incorporation by reference.
    (A) NR 400--Wisconsin Administrative Code, Air Pollution Control, 
Effective date January 1, 1994.
    (B) NR 406--Wisconsin Administrative Code, Construction Permits, 
Effective date January 1, 1994.
    (C) NR 408--Wisconsin Administrative Code, Nonattainment Area Major 
Source Permits, Effective date June 1, 1993.
    (D) NR 490--Wisconsin Administrative Code, Procedures for 
Noncontested Case Public Hearings, Effective date January 1, 1994.
    (E) Section 144.30--91-92 Wisconsin Statutes. Effective date May 
14, 1992.
    (F) Section 144.391--91-92 Wisconsin Statutes. Effective date May 
14, 1992.
    (G) Section 144.392--Construction permit application and review, 
91-92 Wisconsin Statutes. Effective date May 14, 1992.
    (H) Section 144.393--91-92 Wisconsin Statutes. Effective date May 
14, 1992.
    (i) Section 144.394--Permit conditions, 91-92 Wisconsin Statutes. 
Effective date May 14, 1992. [[Page 3544]] 
    (ii) Additional material.
    (A) Wisconsin's Emergency NSR regulations. Effective date November 
15, 1992.
    (B) On December 12, 1994, Donald Theiler, Director, Bureau of Air 
Management, WDNR sent a letter to USEPA clarifying Wisconsin's 
interpretation of ``any period of 5 consecutive years.'' Wisconsin 
interprets the term as referring to the five-year period including the 
calendar year in which the increase from the particular change will 
occur and the four immediately preceding years.
    (76) On January 14, 1994, the State of Wisconsin submitted its 
rules for an Operating Permits program intended to satisfy federal 
requirements for issuing federally enforceable operating permits.
    (i) Incorporation by reference.
    (A) NR 407--Wisconsin Administrative Code, Operating Permits, 
Effective date January 1, 1994.
* * * * *
[FR Doc. 95-1085 Filed 1-17-95; 8:45 am]
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