[Federal Register Volume 84, Number 147 (Wednesday, July 31, 2019)]
[Rules and Regulations]
[Pages 37104-37107]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-16336]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[EPA-R05-OAR-2018-0285; FRL-9997-36-Region 5]


Air Plan Approval; Wisconsin; Title V Operation Permit Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving updates 
and revisions to the Wisconsin title V Operation Permit Program, 
submitted by Wisconsin pursuant to subchapter V of the Clean Air Act 
(Act), which requires states to develop, and to submit to EPA for 
approval, programs for issuing operation permits to all major 
stationary sources. The revision was submitted to update the title V 
program since the final approval of the program in 2001 and to change 
the permit fee schedule for subject facilities. The revision consists 
of amendments to Chapter Natural Resources (NR) 407 Wisconsin 
Administrative Code, operation permits, Chapter NR 410 Wisconsin 
Administrative Code, permit fees, and Wisconsin statute 285.69, fee 
structure. This approval action will help ensure that Wisconsin 
properly implements the requirements of title V of the Act.

DATES: This direct final rule will be effective September 30, 2019, 
unless EPA receives adverse comments by August 30, 2019. If adverse 
comments are received, EPA will publish a timely withdrawal of the 
direct final rule in the Federal Register informing the public that the 
rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2018-0285 at http://www.regulations.gov, or via email to 
damico.genevieve@epa.gov. For comments submitted at Regulations.gov, 
follow the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e. on the web, cloud, or other file sharing 
system). For additional submission methods, please contact the person 
identified in the FOR FURTHER INFORMATION CONTACT section. For the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Susan Kraj, Environmental Engineer, 
Air Permits Section, Air Programs Branch (AR-18J), Environmental 
Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, 
Illinois 60604, (312) 353-2654, kraj.susan@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 did Wisconsin Submit?
II. What is EPA Approving?
III. What Action is EPA Taking?
IV. Statutory and Executive Order Reviews.

I. What did Wisconsin submit?

A. Background

    On March 8, 2017, EPA received a request from the Wisconsin 
Department of Natural Resources (WDNR) that we approve revisions and 
updates to Wisconsin's title V operating permit program. Pursuant to 
subchapter V of the Act, generally known as title V, and the 
implementing regulations, at 40 Code of Federal Regulations (CFR) part 
70, states developed and submitted to EPA for approval programs for 
issuing operation permits to all major stationary sources and to 
certain other sources. EPA promulgated interim approval of Wisconsin's 
title V operating permit program on March 6, 1995 (60 FR

[[Page 37105]]

12128). In 2001, Wisconsin submitted corrections to the interim 
approval issues identified in the 1995 interim approval action as well 
as additional program revisions and updates. EPA took action to approve 
the corrections to the interim approval issues and promulgated final 
approval of the Wisconsin title V program on December 4, 2001 (66 FR 
62951).

B. Wisconsin's Submittal

    Wisconsin is seeking approval of changes and updates made to its 
title V program since the 1995 and 2001 approvals. EPA received WDNR's 
submittal updating its title V operating permit program on March 8, 
2017, and supplemental information on January 26, 2018 (submittal). 
WDNR's submittal contains two sections, Part 1 and Part 2.
    Part 1 contains previously approved program elements which are 
included for informational purposes, as well as Other Changes -- Minor 
Clarifications and Corrections (which are changes that were included in 
WDNR's 2001 submittal that EPA did not act on or approve in the 2001 
approval).
    Part 2 contains title V program revisions and updates since 
Wisconsin's program was approved in 2001. Part 2 of the submittal 
contains section I--Additional State Rule Changes and Updates to the 
Regulations, and section II--Permit Fee Demonstration.

II. What is EPA approving?

    In this action, EPA is addressing the changes and updates in WDNR's 
submittal that have not been previously approved. This includes the 
Part 1, Section IX Other Changes -- Minor Clarifications and 
Corrections, as well as the changes in Part 2, Sections I and II, of 
WDNR's submittal that relate to the Federal title V program at 40 CFR 
part 70.
    WDNR's submittal includes changes related to several different 
operating permit programs, including its title V program as well its 
Federally Enforceable State Operating Permit (FESOP) program and its 
state-only enforceable operating permit program. EPA approved 
Wisconsin's FESOP program on January 18, 1995 (60 FR 3538). FESOP 
permits are those in which a source takes a federally-enforceable limit 
to restrict its emissions to below major source thresholds in order to 
avoid needing a title V permit. WDNR's State-only operating permit 
program is for sources with emissions below those that would require a 
FESOP or title V permit. In this action, EPA is only approving 
provisions related to WDNR's title V operating permit program. EPA is 
not approving any changes or updates solely related to WDNR's FESOP or 
State-only operation permit programs.
    For the reasons set forth below, the revisions and updates to 
WDNR's title V operating permits program, including the submitted 
amendments to the operating permits program regulations at NR 407 
Wisconsin Administrative Code and fee related provisions at NR 410 and 
Wisconsin Statute 285.69, substantially meet the corresponding 
requirements of 40 CFR part 70.

A. Analysis of Part I Section IX--Minor Clarifications and Corrections

    In Wisconsin's 1995 initial program approval, EPA identified 
several issues (in addition to the interim approval issues) that should 
be clarified or corrected, and WDNR agreed to make these changes. WDNR 
included these changes in its 2001 program submittal, but EPA only 
acted on the interim approval corrections at that time. For each of 
these additional items EPA had identified, WDNR included an analysis of 
the changes in its current submittal. EPA is approving the changes 
identified in Part I, Section IX, items 1-6 of the submittal.

B. Analysis of Part 2, Section I--Updates to Regulations

    WDNR's submittal contains over thirty revisions related to its 
operation permit program since the final approval in 2001. The WDNR 
followed all necessary procedures for adoption of changes that were 
made to these regulations including the WDNR's secretary's approval of 
the notice of public hearing, certification of publication, affidavit 
of mailing of the public notice to interested parties, a list of public 
hearing appearances, and the WDNR report on comments and response to 
comments.
    For a detailed analysis of Part 2, Section I--Updates to 
Regulations, of the submittal, please refer to the Technical Support 
Document (TSD) for this action, which is available in the docket at the 
address noted above. The TSD shows that all operating permit program 
requirements of title V of the Act, 40 CFR part 70, and relevant 
guidance were met by Wisconsin's submittal.

C. Analysis of Part 2, Section II--Permit Fee Demonstration

    WDNR submitted a fee demonstration because it is required by 42 
U.S.C. 7661a(b)(3) and 40 CFR 70.9(a), which provide that a state 
program must require that the owners or operators of part 70 sources 
pay annual fees, or the equivalent over some other period, that are 
sufficient to cover the permit program costs. 42 U.S.C. 7661a(b)(3) and 
40 CFR 70.9(b) provide that a state may collect fees that cover the 
actual permit program costs, or may use a presumptive fee schedule, 
adjusted for inflation (using the Consumer Price Index). Wisconsin's 
fee schedule is not based on the presumptive minimum fee schedule 
established in 40 CFR 70.9(b) and does not provide for inflation 
adjustments; therefore, Wisconsin must provide a demonstration that its 
collected fees cover the actual permit program costs as required by 40 
CFR 70.9(b)(5).
    WDNR describes in its submittal the rule changes related to fees 
that have occurred since 2001, including changes that revised the 
operation permit fee structure. WDNR's current title V fee structure 
requires sources that are required to obtain a Federal operation permit 
to pay an annual air emissions tonnage fee, but sources also pay an 
additional annual flat fee, based on the tons of actual billable 
emissions. In addition, sources also pay an additional annual flat fee 
if the source is subject to other requirements, such as if maximum 
achievable control technology standards apply to the source, if one or 
more Federal new source performance standards apply to the source, if 
Federal prevention of significant deterioration permitting applies to 
the source, and if the source is a privately-owned coal-fired electric 
utility with an electric generating unit, among other flat fees.
    The submittal provides tables showing the fee rate per ton of 
billable pollutants, the billable tons, and the total fees assessed for 
various years. The submittal also provides details on WDNR's revenue, 
work planning, and expenditures. In addition, WDNR has several 
mechanisms in place to ensure that fees collected from title V sources 
are used solely for funding title V permit activities as required by 40 
CFR 70.9(a). In the submittal, WDNR compares the actual revenues 
collected under its fee structure to an estimate of what would be 
collected using the presumptive minimum fee schedule, and WDNR's actual 
revenues collected exceed the presumptive minimum projections. WDNR 
demonstrates that the level of fees collected by WDNR from federally-
regulated sources is sufficient for the WDNR to adequately administer 
and enforce the required minimum elements of the title V permit program 
required in Section 502(b) of the Act.
    Upon review of the information submitted, EPA finds that WDNR has 
demonstrated that it has adequate funding levels to support its title V

[[Page 37106]]

program. Accordingly, Wisconsin has adequately demonstrated that the 
revised fee schedule has resulted in the collection of fees in an 
amount sufficient to cover its actual program costs, as required by 40 
CFR 70.9 and the Act.

III. What action is EPA taking?

    EPA is approving Wisconsin's submittal. This approval of the 
revisions and updates in Wisconsin's submittal addresses only the 
provisions as described above in Section II, What is EPA Approving, 
which pertain to the Federal title V program requirements, and does not 
apply to any other Federal program requirements, such as State 
Implementation Plans pursuant to section 110 of the Act. EPA finds that 
the program revisions and updates in WDNR's submittal have 
satisfactorily addressed the requirements of part 70, and EPA is 
therefore approving this submittal.
    We are publishing this action without prior proposal because we 
view this as a noncontroversial amendment and anticipate no adverse 
comments. However, in the proposed rules section of this issue of the 
Federal Register, we are publishing a separate document that will serve 
as the proposal to approve the State plan if relevant adverse written 
comments are filed. This rule will be effective September 30, 2019 
without further notice unless we receive relevant adverse written 
comments by August 30, 2019. If we receive such comments, we will 
withdraw this action before the effective date by publishing a 
subsequent document that will withdraw the final action. All public 
comments received will then be addressed in a subsequent final rule 
based on the proposed action. EPA will not institute a second comment 
period. Any parties interested in commenting on this action should do 
so at this time. Please note that if EPA receives adverse comment on an 
amendment, paragraph, or section of this rule and if that provision may 
be severed from the remainder of the rule, EPA may adopt as final those 
provisions of the rule that are not the subject of an adverse comment. 
If we do not receive any comments, this action will be effective 
September 30, 2019.

IV. Statutory and Executive Order Reviews

Executive Orders 12866 and 13563: Regulatory Planning and Review

    Under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 
13563 (76 FR 3821, January 21, 2011), this action is not a 
``significant regulatory action'' and, therefore, is not subject to 
review by the Office of Management and Budget.

Executive Order 13771: Reducing Regulations and Controlling Regulatory 
Costs

    This action is an Executive Order 13771 regulatory action because 
this action is not significant under Executive Order 12866.

Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.).

Regulatory Flexibility Act

    This action merely proposes to approve state law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. Accordingly, the Administrator certifies that 
this state operating permit program will not have a significant 
economic impact on a substantial number of small entities under the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

Unfunded Mandates Reform Act

    Because this action proposes to approve pre-existing requirements 
under state law and does not impose any additional enforceable duty 
beyond that required by state law, it 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).

Executive Order 13132: Federalism

    This action also does not have federalism implications because it 
does not have substantial direct effects on the states, on the 
relationship between the national government and the states, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132 (64 FR 43255, August 
10, 1999). This action merely proposes to approve a state operating 
permit program, and does not alter the relationship or the distribution 
of power and responsibilities established in the Act.

Executive Order 13175: Consultation and Coordination With Indian Tribal 
Governments

    In addition, the state operating permit program is not approved to 
apply on any Indian reservation land or in any other area where EPA or 
an Indian tribe has demonstrated that a tribe has jurisdiction. In 
those areas of Indian country, the state operating permit program does 
not have tribal implications and will not impose substantial direct 
costs on tribal governments or preempt tribal law as specified by 
Executive Order 13175 (65 FR 67249, November 9, 2000).

Executive Order 13045: Protection of Children From Environmental Health 
and Safety Risks

    This action also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it proposes to approve a 
state operating permit program.

Executive Order 13211: Actions That Significantly Affect Energy Supply, 
Distribution, or Use

    Because it is not a ``significant regulatory action'' under 
Executive Order 12866 or a ``significant energy action,'' this action 
is also not subject to Executive Order 13211, ``Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use'' (66 FR 28355, May 22, 2001).

National Technology Transfer Advancement Act

    In reviewing state submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Act. In this 
context, in the absence of a prior existing requirement for the state 
to use voluntary consensus standards (VCS), EPA has no authority to 
disapprove a state submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a state 
submission, to use VCS in place of a state submission that otherwise 
satisfies the provisions of the Act. Thus, the requirements of section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(15 U.S.C. 272 note) do not apply.

Executive Order 12898: Federal Actions To Address Environmental Justice 
in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority

[[Page 37107]]

populations and low-income populations in the United States.
    EPA lacks the discretionary authority to address environmental 
justice in this action. In reviewing state operating permit program 
submissions, EPA's role is to approve or disapprove state choices, 
based on the criteria of the Act. Accordingly, this action merely 
approves certain state requirements and will not in-and-of itself 
create any new requirements. Accordingly, it 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.

List of Subjects in 40 CFR Part 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Operation permits, 
Reporting and recordkeeping requirements.

    Dated: July 17, 2019.
Cathy Stepp,
Regional Administrator, Region 5.
    40 CFR part 70 is amended as follows:

PART 70--STATE OPERATING PERMIT PROGRAMS

0
1. The authority citation for part 70 continues to read as follows:

    Authority: 42 U.S.C. 7401, et seq.

0
2. Amend appendix A to part 70 by adding paragraph (d) under Wisconsin 
to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating 
Permits Programs

* * * * *

Wisconsin

* * * * *
    (d) Department of Natural Resources: Title v operating permit 
program revisions and updates received on March 8, 2017. Wisconsin's 
Title v program is hereby updated to include these requested 
changes.
* * * * *
[FR Doc. 2019-16336 Filed 7-30-19; 8:45 am]
 BILLING CODE 6560-50-P


