Approval and Promulgation of Air Quality Implementation Plans; Wisconsin; Forest County Potawatomi Community Reservation Class I Area, 20575-20577 [2012-8207]
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Federal Register / Vol. 77, No. 66 / Thursday, April 5, 2012 / Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R05–OAR–2011–0501; FRL–9655–4]
Approval and Promulgation of Air
Quality Implementation Plans;
Wisconsin; Forest County Potawatomi
Community Reservation Class I Area
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
On May 12, 2011, the
Wisconsin Department of Natural
Resources (WDNR) submitted
provisions affecting the Forest County
Potawatomi Community (FCP
Community) Class I Area for approval
into the Wisconsin State
Implementation Plan (SIP). The
provisions include the regulation of
sources constructing near the newly
designated Class I Area, as well as
procedures that the FCP Community
must follow when providing a
demonstration regarding a source that
may have an adverse impact on the
Class I Area. In this action, EPA
proposes to approve the provisions into
Wisconsin’s SIP.
DATES: Comments must be received on
or before May 7, 2012.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R05–
OAR–2011–0501, by one of the
following methods:
1. www.regulations.gov: Follow the
on-line instructions for submitting
comments.
2. Email: damico.genevieve@epa.gov.
3. Fax: (312) 582–5146.
4. Mail: Genevieve Damico, Chief, Air
Permits Section, Air Programs Branch
(AR–18J), U.S. Environmental
Protection Agency, 77 West Jackson
Boulevard, Chicago, Illinois 60604.
5. Hand Delivery: Genevieve Damico,
Chief, Air Permits Section, Air Programs
Branch (AR–18J), U.S. Environmental
Protection Agency, 77 West Jackson
Boulevard, Chicago, Illinois 60604.
Such deliveries are only accepted
during the Regional Office normal hours
of operation, and special arrangements
should be made for deliveries of boxed
information. The Regional Office official
hours of business are Monday through
Friday, 8:30 a.m. to 4:30 p.m., excluding
Federal holidays.
Instructions: Direct your comments to
Docket ID No. EPA–R05–OAR–2011–
0501. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at
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SUMMARY:
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www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through www.regulations.gov
or email. The www.regulations.gov Web
site is an ‘‘anonymous access’’ system,
which means EPA will not know your
identity or contact information unless
you provide it in the body of your
comment. If you send an email
comment directly to EPA without going
through www.regulations.gov your email
address will be automatically captured
and included as part of the comment
that is placed in the public docket and
made available on the Internet. If you
submit an electronic comment, EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. If EPA
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption, and be free of any defects or
viruses. For additional instructions on
submitting comments, go to Section I of
the SUPPLEMENTARY INFORMATION section
of this document.
Docket: All documents in the docket
are listed in the www.regulations.gov
index. Although listed in the index,
some information is not publicly
available, e.g., CBI or other information
whose disclosure is restricted by statute.
Certain other material, such as
copyrighted material, will be publicly
available only in hard copy. Publicly
available docket materials are available
either electronically in
www.regulations.gov or in hard copy at
the Environmental Protection Agency,
Region 5, Air and Radiation Division, 77
West Jackson Boulevard, Chicago,
Illinois 60604. This facility is open from
8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding Federal holidays. We
recommend that you telephone Danny
Marcus, Environmental Engineer, at
(312) 353–8781 before visiting the
Region 5 office.
FOR FURTHER INFORMATION CONTACT:
Danny Marcus, Environmental Engineer,
Air Permits Section, Air Programs
Branch (AR–18J), Environmental
Protection Agency, Region 5, 77 West
Jackson Boulevard, Chicago, Illinois
60604, (312) 353–8781,
marcus.danny@epa.gov.
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SUPPLEMENTARY INFORMATION:
Throughout this document whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
EPA. This supplementary information
section is arranged as follows:
I. What should I consider as I prepare my
comments for EPA?
II. Background
III. What changes is EPA proposing to
approve?
IV. What action is EPA taking?
V. Statutory and Executive Order Reviews
I. What should I consider as I prepare
my comments for EPA?
1. Follow directions—EPA may ask
you to respond to specific questions or
organize comments by referencing a
Code of Federal Regulations (CFR) part
or section number.
2. Explain why you agree or disagree;
suggest alternatives and substitute
language for your requested changes.
3. Describe any assumptions and
provide any technical information
and/or data that you used.
4. If you estimate potential costs or
burdens, explain how you arrived at
your estimate in sufficient detail to
allow for it to be reproduced.
5. Provide specific examples to
illustrate your concerns, and suggest
alternatives.
6. Explain your views as clearly as
possible, avoiding the use of profanity
or personal threats.
7. Make sure to submit your
comments by the comment period
deadline identified.
II. Background
Redesignation of the Forest County
Potawatomi Community
On April 29, 2008, at 73 FR 23086, the
Administrator granted the application of
the FCP Community to obtain Class I
redesignation of certain reservation
lands from ‘‘Class II’’ to ‘‘Class I’’ under
the Clean Air Act’s (CAA) Prevention of
Significant Deterioration (PSD) Program.
This rulemaking redesignated to Class I
status lands held in trust for the FCP
Community. At the same time, EPA
published two actions resolving
disputes with Wisconsin and Michigan
under the CAA, in which those states
had challenged the FCP Community’s
application for Class I redesignation.
The history of these dispute resolutions
is discussed in detail in EPA’s April 29,
2008, actions for the resolution of these
two matters at 73 FR 23107 and 73 FR
23111. The dispute resolution reached
by Wisconsin and the FCP Community
was formalized in a Memorandum of
Agreement (MOA) which was signed in
1999.
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Federal Register / Vol. 77, No. 66 / Thursday, April 5, 2012 / Proposed Rules
The FCP Community and the State of
Wisconsin Memorandum of Agreement
The 1999 MOA provided a framework
for establishing how the State and FCP
Community would implement the Class
I Area under their respective authorities.
The provisions of the agreement became
effective upon EPA’s final action to
approve the FCP Community’s request
for Class I redesignation. While EPA
also was a signatory to the agreement,
EPA’s role in the process was to
acknowledge the agreement entered into
by the parties on their own respective
authorities.
Section 164(e) of the CAA, provides
that ‘‘If the [state and the Indian Tribe]
do not reach agreement, the
Administrator shall resolve the dispute
and his determination or the results of
the agreements reached through other
means, shall become part of the
applicable plan and shall be enforceable
as part of such plan.’’ CAA section
164(e), 42 U.S.C. 7474(e). The PSD
program is implemented in Wisconsin
under an EPA approved SIP that
excludes all of Indian country within
the State. Because the terms of the MOA
set out requirements for sources locating
outside the Class I Area, it is
appropriate to implement these
requirements through the SIP which
applies to all areas excluding Indian
country in Wisconsin. 73 FR 23114.
These revisions are the subject of
today’s proposal.
Pursuant to the MOA, all major
sources in Wisconsin that are located
within a 10-mile radius of any
redesignated FCP land must perform a
Class I increment analysis and must
meet the increment consumption
requirements applicable to a Class I
Area. Major sources located beyond the
10-mile distance from redesignated
lands must perform a Class II increment
analysis and comply with the
consumption requirements applicable to
a Class II Area. Additionally, all major
sources within 62 miles of the FCP
Community’s Class I redesignated area
must determine by an analysis whether
their emissions will have an adverse
impact on those Air Quality Related
Values (AQRV) associated with that
Class I Area.
EPA takes the position that it
generally will not interfere with the
agreements reached between tribes and
states through the CAA’s section 164(e)
dispute resolution process. However, to
the extent that the agreement reached
under the terms of the MOA allows for
restricting the requirements normally
associated with Class I areas as these
apply to sources located outside a
10-mile radius of the redesignated
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reservation lands, EPA takes the
position that a revision of the Wisconsin
SIP is necessary to implement these
provisions for potential sources located
outside the boundaries of the
redesignated parcels. In the absence of
such modification to the Wisconsin SIP,
the current PSD rules will apply to
sources locating outside the Class I
Area, and the provisions of the MOA
would lack enforceability.
Between 2008 and 2010,
representatives from the FCP
Community, WDNR, and EPA met and
held discussions to determine how to
translate the general principles of the
MOA into implementable regulations.
These discussions covered definition of
the areas within which sources would
be required to conduct the Class I and
Class II increment analyses, notification
procedures, and a state-tribal dispute
resolution mechanism. Representatives
for the FCP Community and WDNR then
worked together to develop the
necessary regulatory provisions.
III. What changes is EPA proposing to
approve?
The regulatory revisions that
Wisconsin has submitted for EPA’s
approval include defining the
geographic center of the FCP
Community Class I Area for purposes of
air quality management. Additionally,
proposed new major sources or major
modifications of existing sources
locating within 22.25 miles of the
geographic center of the FCP
Community Class I Area must conduct
a Class I increment analysis and are
subject to Class I consumption limits.
Proposed new major sources or major
modifications of existing sources
locating outside 22.25 miles of the
geographic center of the FCP
Community Class I Area must conduct
a Class II increment analysis and are
subject to Class II consumption limits.
The rules also include procedures for
the FCP Community to coordinate with
the state regarding comments on sources
potentially impacting the Class I Area
and to make a demonstration to the state
that a proposed source may have an
adverse effect on AQRVs. Finally, the
rules provide the FCP Community with
the opportunity to review certain best
available control technology (BACT)
and maximum achievable control
technology (MACT) determinations
made by the State, and provide a
dispute resolution mechanism for
resolving disagreements regarding
BACT or MACT determinations for
certain new or modified sources. The
rules proposed for approval are as
follows:
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NR 400.02 (66m) ‘‘Forest County
Potawatomi Community Class I Area’’ or
‘‘FCPC Class I Area’’
Means those land parcels of the Forest
County Potawatomi Reservation that are
designated as a non-Federal Class I Area
by EPA under 40 CFR 52.2581. The FCP
Community Class I Area has a
geographic center, as determined by the
department, at latitude 45.49978° N,
longitude 88.64377° W.
NR 405.19 ‘‘Forest County Potawatomi
Class I Area.’’
(1) For any new major source or major
modification of an existing source, the
FCP Community shall have the
opportunity to present to the
department, within no more than 75
days of receipt of a complete permit
application by the department, a
demonstration that the emissions from
the proposed new major source or major
modification would have an adverse
impact on the established air quality
related values of the FCP Community
Class I Area.
(2) New major sources or major
modifications of existing sources wholly
or partially locating or located within a
radius of 22.25 miles from the
geographic center of the FCP
Community Class I Area, as identified in
s. NR 400.02 (66m), are subject to an
increment analysis and limited to the
maximum allowable increase levels of a
Class I Area.
(3) New major sources or major
modifications of existing sources
locating or located wholly outside the
area defined in sub. (2) are subject to an
increment analysis and maximum
allowable increase levels of a Class II
Area.
NR 406.08 ‘‘Action on permit
applications.’’
(4)(a) The FCP Community shall have
the opportunity to review BACT or
MACT determinations made by the
department for any new or modified
source that is either of the following:
1. Wholly or partially locating or
located within a radius of 22.25 miles
from the geographic center of the FCP
Community Class I Area, as identified in
s. NR 400.02 (66m).
2. Wholly or partially locating or
located within 62 miles of the FCP
Community Class I Area, and has a
modeled impact exceeding 1 microgram
per cubic meter averaged over any 24hour period for mercury or for any
regulated pollutant that has an ambient
air quality standard in s. NR 404.04.
(b) Disagreements between the
department and the FCP Community
regarding BACT or MACT
determinations are subject to dispute
resolution but the department shall act
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Federal Register / Vol. 77, No. 66 / Thursday, April 5, 2012 / Proposed Rules
on a permit application according to
time period requirements under ss.
285.61 and 285.62, Stats.
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IV. What action is EPA taking?
EPA is proposing to approve
Wisconsin’s May 12, 2001, submittal,
relating to provisions impacting the FCP
Community Class I Area. Specifically,
Wisconsin’s submittal defines the
geographic center of the FCP
Community Class I Area, establishes
requirements for sources which may
potentially impact the FCP Community
Class I Area, provides the FCP
Community the opportunity to review
certain BACT and MACT
determinations, and establishes a
dispute resolution process for issues
that may arise between the FCP
Community and the State. The
provisions proposed for approval into
Wisconsin’s SIP include: NR
400.02(66m), NR 405.19, and NR
406.08(4).
EPA has made the preliminary
determination that the SIP submittal is
approvable because EPA takes the
position that it generally will not
interfere with the agreements reached
between Tribes and States through the
CAA’s section 164(e) dispute resolution
process, which provides that the results
of such agreements will become part of
the appropriate applicable plan. EPA’s
2008 rulemaking anticipated that
revisions to the Wisconsin SIP would be
needed to fully implement the 1999
MOA between the State and the FCP
Community.
V. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
CAA and applicable Federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this action
merely approves state law as meeting
Federal requirements and does not
impose additional requirements beyond
those imposed by state law. For that
reason, this action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Order 12866 (58 FR 51735,
October 4, 1993);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
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under the Regulatory Flexibility Act
(5 U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this rule does not have
tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
not approved to apply in Indian country
located in the state and EPA notes that
it will not impose substantial direct
costs on tribal governments or preempt
tribal law. In May 2011, EPA issued its
policy on consultation and coordination
with Indian tribes. EPA explained that
its policy is to consult on a governmentto-government basis with Federally
recognized tribal governments when
EPA actions and decisions may affect
tribal interests. Accordingly, EPA
engaged in consultation with the FCP
Community regarding the Wisconsin
proposed SIP revisions.
The Wisconsin proposed SIP
revisions which define the FCP
Community’s Class I Area, and which
define those sources that are required to
conduct Class I and Class II increment
analysis, and which provide for the FCP
Community’s participation in certain
BACT or MACT determinations will all
enable the FCP Community and
Wisconsin to work together to
cooperatively implement the FCP
Community’s Class I Area, which is an
integral part of the FCP Community’s
goal of exercising control over
reservation resources to better protect
the members of the FCP Community.
In the process of reviewing the
proposed Wisconsin SIP revisions, EPA
consulted with FCP Community tribal
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20577
officials to permit them to have
meaningful and timely input into the
Agency’s review. EPA consulted with
representatives of the FCP Community
prior to proposing to approve the
Wisconsin SIP revision. During this
consultation, EPA explained the
provisions included in the proposed
Wisconsin SIP revision and answered
questions. EPA intends to keep the FCP
Community informed of the progress of
this proposed SIP approval.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Incorporation by reference,
Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Sulfur oxides, Volatile organic
compounds.
Dated: March 26, 2012.
Susan Hedman,
Regional Administrator, Region 5.
[FR Doc. 2012–8207 Filed 4–4–12; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R05–OAR–2012–0214; FRL–9655–3]
Approval and Promulgation of Air
Quality Implementation Plans; Indiana;
Central Indiana (Indianapolis) Ozone
Maintenance Plan Revision to
Approved Motor Vehicle Emissions
Budgets
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
EPA is proposing to approve
Indiana’s request to revise its Central
Indiana 1997 8-hour ozone maintenance
air quality State Implementation Plan
(SIP) by replacing the previously
approved motor vehicle emissions
budgets (budgets) with budgets
developed using EPA’s Motor Vehicle
Emissions Simulator (MOVES) 2010a
emissions model. The Central Indiana
1997 8-hour ozone maintenance area
consists of Marion, Boone, Hendricks,
Morgan, Johnson, Shelby, Hancock,
Madison, and Hamilton Counties in
Indiana. Indiana submitted this request
to EPA for parallel processing on March
2, 2012.
DATES: Comments must be received on
or before May 7, 2012.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R05–
OAR–2012–0214, by one of the
following methods:
SUMMARY:
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]]>Agencies
[Federal Register Volume 77, Number 66 (Thursday, April 5, 2012)]
[Proposed Rules]
[Pages 20575-20577]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-8207]
[[Page 20575]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2011-0501; FRL-9655-4]
Approval and Promulgation of Air Quality Implementation Plans;
Wisconsin; Forest County Potawatomi Community Reservation Class I Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: On May 12, 2011, the Wisconsin Department of Natural Resources
(WDNR) submitted provisions affecting the Forest County Potawatomi
Community (FCP Community) Class I Area for approval into the Wisconsin
State Implementation Plan (SIP). The provisions include the regulation
of sources constructing near the newly designated Class I Area, as well
as procedures that the FCP Community must follow when providing a
demonstration regarding a source that may have an adverse impact on the
Class I Area. In this action, EPA proposes to approve the provisions
into Wisconsin's SIP.
DATES: Comments must be received on or before May 7, 2012.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2011-0501, by one of the following methods:
1. www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. Email: damico.genevieve@epa.gov.
3. Fax: (312) 582-5146.
4. Mail: Genevieve Damico, Chief, Air Permits Section, Air Programs
Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson
Boulevard, Chicago, Illinois 60604.
5. Hand Delivery: Genevieve Damico, Chief, Air Permits Section, Air
Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West
Jackson Boulevard, Chicago, Illinois 60604. Such deliveries are only
accepted during the Regional Office normal hours of operation, and
special arrangements should be made for deliveries of boxed
information. The Regional Office official hours of business are Monday
through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays.
Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2011-0501. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an email comment
directly to EPA without going through www.regulations.gov your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
instructions on submitting comments, go to Section I of the
SUPPLEMENTARY INFORMATION section of this document.
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the Environmental Protection
Agency, Region 5, Air and Radiation Division, 77 West Jackson
Boulevard, Chicago, Illinois 60604. This facility is open from 8:30
a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays.
We recommend that you telephone Danny Marcus, Environmental Engineer,
at (312) 353-8781 before visiting the Region 5 office.
FOR FURTHER INFORMATION CONTACT: Danny Marcus, Environmental Engineer,
Air Permits Section, Air Programs Branch (AR-18J), Environmental
Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago,
Illinois 60604, (312) 353-8781, marcus.danny@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. This supplementary information
section is arranged as follows:
I. What should I consider as I prepare my comments for EPA?
II. Background
III. What changes is EPA proposing to approve?
IV. What action is EPA taking?
V. Statutory and Executive Order Reviews
I. What should I consider as I prepare my comments for EPA?
1. Follow directions--EPA may ask you to respond to specific
questions or organize comments by referencing a Code of Federal
Regulations (CFR) part or section number.
2. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
3. Describe any assumptions and provide any technical information
and/or data that you used.
4. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
5. Provide specific examples to illustrate your concerns, and
suggest alternatives.
6. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
7. Make sure to submit your comments by the comment period deadline
identified.
II. Background
Redesignation of the Forest County Potawatomi Community
On April 29, 2008, at 73 FR 23086, the Administrator granted the
application of the FCP Community to obtain Class I redesignation of
certain reservation lands from ``Class II'' to ``Class I'' under the
Clean Air Act's (CAA) Prevention of Significant Deterioration (PSD)
Program. This rulemaking redesignated to Class I status lands held in
trust for the FCP Community. At the same time, EPA published two
actions resolving disputes with Wisconsin and Michigan under the CAA,
in which those states had challenged the FCP Community's application
for Class I redesignation. The history of these dispute resolutions is
discussed in detail in EPA's April 29, 2008, actions for the resolution
of these two matters at 73 FR 23107 and 73 FR 23111. The dispute
resolution reached by Wisconsin and the FCP Community was formalized in
a Memorandum of Agreement (MOA) which was signed in 1999.
[[Page 20576]]
The FCP Community and the State of Wisconsin Memorandum of Agreement
The 1999 MOA provided a framework for establishing how the State
and FCP Community would implement the Class I Area under their
respective authorities. The provisions of the agreement became
effective upon EPA's final action to approve the FCP Community's
request for Class I redesignation. While EPA also was a signatory to
the agreement, EPA's role in the process was to acknowledge the
agreement entered into by the parties on their own respective
authorities.
Section 164(e) of the CAA, provides that ``If the [state and the
Indian Tribe] do not reach agreement, the Administrator shall resolve
the dispute and his determination or the results of the agreements
reached through other means, shall become part of the applicable plan
and shall be enforceable as part of such plan.'' CAA section 164(e), 42
U.S.C. 7474(e). The PSD program is implemented in Wisconsin under an
EPA approved SIP that excludes all of Indian country within the State.
Because the terms of the MOA set out requirements for sources locating
outside the Class I Area, it is appropriate to implement these
requirements through the SIP which applies to all areas excluding
Indian country in Wisconsin. 73 FR 23114. These revisions are the
subject of today's proposal.
Pursuant to the MOA, all major sources in Wisconsin that are
located within a 10-mile radius of any redesignated FCP land must
perform a Class I increment analysis and must meet the increment
consumption requirements applicable to a Class I Area. Major sources
located beyond the 10-mile distance from redesignated lands must
perform a Class II increment analysis and comply with the consumption
requirements applicable to a Class II Area. Additionally, all major
sources within 62 miles of the FCP Community's Class I redesignated
area must determine by an analysis whether their emissions will have an
adverse impact on those Air Quality Related Values (AQRV) associated
with that Class I Area.
EPA takes the position that it generally will not interfere with
the agreements reached between tribes and states through the CAA's
section 164(e) dispute resolution process. However, to the extent that
the agreement reached under the terms of the MOA allows for restricting
the requirements normally associated with Class I areas as these apply
to sources located outside a 10-mile radius of the redesignated
reservation lands, EPA takes the position that a revision of the
Wisconsin SIP is necessary to implement these provisions for potential
sources located outside the boundaries of the redesignated parcels. In
the absence of such modification to the Wisconsin SIP, the current PSD
rules will apply to sources locating outside the Class I Area, and the
provisions of the MOA would lack enforceability.
Between 2008 and 2010, representatives from the FCP Community,
WDNR, and EPA met and held discussions to determine how to translate
the general principles of the MOA into implementable regulations. These
discussions covered definition of the areas within which sources would
be required to conduct the Class I and Class II increment analyses,
notification procedures, and a state-tribal dispute resolution
mechanism. Representatives for the FCP Community and WDNR then worked
together to develop the necessary regulatory provisions.
III. What changes is EPA proposing to approve?
The regulatory revisions that Wisconsin has submitted for EPA's
approval include defining the geographic center of the FCP Community
Class I Area for purposes of air quality management. Additionally,
proposed new major sources or major modifications of existing sources
locating within 22.25 miles of the geographic center of the FCP
Community Class I Area must conduct a Class I increment analysis and
are subject to Class I consumption limits.
Proposed new major sources or major modifications of existing
sources locating outside 22.25 miles of the geographic center of the
FCP Community Class I Area must conduct a Class II increment analysis
and are subject to Class II consumption limits. The rules also include
procedures for the FCP Community to coordinate with the state regarding
comments on sources potentially impacting the Class I Area and to make
a demonstration to the state that a proposed source may have an adverse
effect on AQRVs. Finally, the rules provide the FCP Community with the
opportunity to review certain best available control technology (BACT)
and maximum achievable control technology (MACT) determinations made by
the State, and provide a dispute resolution mechanism for resolving
disagreements regarding BACT or MACT determinations for certain new or
modified sources. The rules proposed for approval are as follows:
NR 400.02 (66m) ``Forest County Potawatomi Community Class I Area'' or
``FCPC Class I Area''
Means those land parcels of the Forest County Potawatomi
Reservation that are designated as a non-Federal Class I Area by EPA
under 40 CFR 52.2581. The FCP Community Class I Area has a geographic
center, as determined by the department, at latitude 45.49978[deg] N,
longitude 88.64377[deg] W.
NR 405.19 ``Forest County Potawatomi Class I Area.''
(1) For any new major source or major modification of an existing
source, the FCP Community shall have the opportunity to present to the
department, within no more than 75 days of receipt of a complete permit
application by the department, a demonstration that the emissions from
the proposed new major source or major modification would have an
adverse impact on the established air quality related values of the FCP
Community Class I Area.
(2) New major sources or major modifications of existing sources
wholly or partially locating or located within a radius of 22.25 miles
from the geographic center of the FCP Community Class I Area, as
identified in s. NR 400.02 (66m), are subject to an increment analysis
and limited to the maximum allowable increase levels of a Class I Area.
(3) New major sources or major modifications of existing sources
locating or located wholly outside the area defined in sub. (2) are
subject to an increment analysis and maximum allowable increase levels
of a Class II Area.
NR 406.08 ``Action on permit applications.''
(4)(a) The FCP Community shall have the opportunity to review BACT
or MACT determinations made by the department for any new or modified
source that is either of the following:
1. Wholly or partially locating or located within a radius of 22.25
miles from the geographic center of the FCP Community Class I Area, as
identified in s. NR 400.02 (66m).
2. Wholly or partially locating or located within 62 miles of the
FCP Community Class I Area, and has a modeled impact exceeding 1
microgram per cubic meter averaged over any 24-hour period for mercury
or for any regulated pollutant that has an ambient air quality standard
in s. NR 404.04.
(b) Disagreements between the department and the FCP Community
regarding BACT or MACT determinations are subject to dispute resolution
but the department shall act
[[Page 20577]]
on a permit application according to time period requirements under ss.
285.61 and 285.62, Stats.
IV. What action is EPA taking?
EPA is proposing to approve Wisconsin's May 12, 2001, submittal,
relating to provisions impacting the FCP Community Class I Area.
Specifically, Wisconsin's submittal defines the geographic center of
the FCP Community Class I Area, establishes requirements for sources
which may potentially impact the FCP Community Class I Area, provides
the FCP Community the opportunity to review certain BACT and MACT
determinations, and establishes a dispute resolution process for issues
that may arise between the FCP Community and the State. The provisions
proposed for approval into Wisconsin's SIP include: NR 400.02(66m), NR
405.19, and NR 406.08(4).
EPA has made the preliminary determination that the SIP submittal
is approvable because EPA takes the position that it generally will not
interfere with the agreements reached between Tribes and States through
the CAA's section 164(e) dispute resolution process, which provides
that the results of such agreements will become part of the appropriate
applicable plan. EPA's 2008 rulemaking anticipated that revisions to
the Wisconsin SIP would be needed to fully implement the 1999 MOA
between the State and the FCP Community.
V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law. In May 2011, EPA
issued its policy on consultation and coordination with Indian tribes.
EPA explained that its policy is to consult on a government-to-
government basis with Federally recognized tribal governments when EPA
actions and decisions may affect tribal interests. Accordingly, EPA
engaged in consultation with the FCP Community regarding the Wisconsin
proposed SIP revisions.
The Wisconsin proposed SIP revisions which define the FCP
Community's Class I Area, and which define those sources that are
required to conduct Class I and Class II increment analysis, and which
provide for the FCP Community's participation in certain BACT or MACT
determinations will all enable the FCP Community and Wisconsin to work
together to cooperatively implement the FCP Community's Class I Area,
which is an integral part of the FCP Community's goal of exercising
control over reservation resources to better protect the members of the
FCP Community.
In the process of reviewing the proposed Wisconsin SIP revisions,
EPA consulted with FCP Community tribal officials to permit them to
have meaningful and timely input into the Agency's review. EPA
consulted with representatives of the FCP Community prior to proposing
to approve the Wisconsin SIP revision. During this consultation, EPA
explained the provisions included in the proposed Wisconsin SIP
revision and answered questions. EPA intends to keep the FCP Community
informed of the progress of this proposed SIP approval.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Sulfur oxides, Volatile organic
compounds.
Dated: March 26, 2012.
Susan Hedman,
Regional Administrator, Region 5.
[FR Doc. 2012-8207 Filed 4-4-12; 8:45 am]
BILLING CODE 6560-50-P
