[Federal Register Volume 84, Number 236 (Monday, December 9, 2019)]
[Rules and Regulations]
[Pages 67200-67202]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-26296]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[EPA-R05-OAR-2018-0285; FRL-10002-80-Region 5]


Air Plan Approval; Wisconsin; Title V Operation Permit Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: 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). The revisions were 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 revisions consist of amendments to 
Department of Natural Resources NR Chapter 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 final rule is effective on January 8, 2020.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2018-0285. All documents in the docket are listed on 
the www.regulations.gov website. Although listed in the index, some 
information is not publicly available, i.e., Confidential Business 
Information or other information whose disclosure is restricted by 
statute. Certain other material, such as copyrighted material, is not 
placed on the internet and will be publicly available only in hard copy 
form. Publicly available docket materials are available either through 
www.regulations.gov or at the EPA, 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 Susan Kraj, 
Environmental Engineer, at (312) 353-2654 before visiting the Region 5 
office.

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. Review of Wisconsin's Submittal
II. What is our response to comments received on the proposed 
rulemaking?
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews

I. Review of Wisconsin's Submittal

    This final rulemaking addresses the request EPA received on March 
8, 2017, from the Wisconsin Department of Natural Resources (WDNR) for 
approval of 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. EPA promulgated interim approval of Wisconsin's 
title V operating permit program on March 6, 1995 (60 FR 12128). In 
2001, WDNR 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).
    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 minor clarifications 
and corrections, which were included in WDNR's 2001 submittal, but 
which 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.
    EPA is addressing the changes and updates in WDNR's submittal that 
have not been previously approved by EPA. This includes the changes in 
Part 1, Section IX (Other Changes--Minor Clarifications and 
Corrections), as well as the changes in Part 2, both sections I and II, 
of WDNR's submittal that relate to the Federal title V program at 40 
CFR part 70. 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.

II. What is our response to comments received on the proposed 
rulemaking?

    EPA published a direct final rule approving Wisconsin's submittal 
on July 31, 2019 (84 FR 37104) along with a proposed rule that was also 
published on July 31, 2019 (84 FR 37194). In this proposed rule we 
stated that if we

[[Page 67201]]

receive adverse comments, we will withdraw this action before the 
effective date by publishing a subsequent document that will withdraw 
the direct final action. In the proposal, we also stated that all 
public comments received will then be addressed in a subsequent final 
rule and that EPA will not institute a second comment period.
    EPA received a comment from one commenter during the public comment 
process. The comment from the anonymous commenter was received on 
August 30, 2019. Consequently, the direct final rule for this approval 
was withdrawn and this withdrawal of the direct final rule was 
published on September 25, 2019 (84 FR 50307). The comment received and 
EPA's response follows:
    Comment 1: ``Did EPA even do a financial analysis of Wisconsin's 
Permit Fee Demonstration? Fixed fee programs are gradually becoming 
insolvent across the country as emissions decrease over time. Slowly 
states are beginning to understand that billable hours model permit 
programs are the only way to sustain adequate permit reviews and 
writing permits for these sources with extensive requirements. EPA must 
perform a financial analysis of the Department's fee demonstration and 
audit the department's finances to determine what level of fees is 
adequate to sustain the permit review and issuance process.''
    EPA Response: WDNR submitted a fee demonstration as part of its 
submittal because 40 CFR 70.9(c) requires a demonstration. 40 CFR 
70.9(a) provides 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. 40 CFR 70.9(b) provides that a state shall collect fees that 
cover the actual permit program costs and 40 CFR 70.9(b)(2) establishes 
a presumptive fee level such that a state fee schedule that collects at 
or above that presumptive level will be presumed valid.
    Permitting authorities have the option of submitting a fee 
demonstration based on the presumptive fee test or submitting a 
detailed fee demonstration if they collect less than the presumptive 
fee. EPA considers the total program revenue to be presumptively 
adequate if fees are collected at or above the presumptive minimum 
level, and if presumptively adequate, EPA does not require a detailed 
fee analysis. Because Wisconsin has shown that the actual revenues 
collected under its fee structure exceed what would be collected using 
the presumptive minimum fee schedule, WDNR has demonstrated that the 
level of fees collected is sufficient.
    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 must 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 requirements apply to the 
source, or 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). See also 40 CFR 70.9(d). 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's submittal demonstrates that the level of fees it 
collects 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.
    EPA evaluated the fee information in WDNR's submittal and has found 
that WDNR has demonstrated that it has adequate funding levels to 
support its title V 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.
    Note that this is not the first time that EPA has conducted an 
analysis of WDNR's title V fees. On March 4, 2004, EPA published a 
Notice of Deficiency (NOD) for the title V Operating Permit Program in 
Wisconsin. See 69 FR 10167. The NOD was based upon EPA's findings that 
the State's title V program did not comply with the requirements of the 
Act or with the implementing regulations at 40 CFR part 70 in part 
because (1) Wisconsin had failed to demonstrate that its title V 
program required owners or operators of part 70 sources to pay fees 
sufficient to cover the costs of the State's title V program in 
contravention of the requirements of 40 CFR part 70 and the Act; and 
(2) Wisconsin was not adequately ensuring that its title V program 
funds were used solely for title V permit program costs and, thus, was 
not conducting its title V program in accordance with the requirements 
of 40 CFR 70.9 and the Act.
    On August 18, 2005, WDNR submitted to EPA its response to the March 
4, 2004 NOD '' (NOD Response). The NOD Response is available to view in 
the docket, Docket ID No. WI-118-2. In the NOD Response, and its 
accompanying attachments, WDNR explained and documented how each of the 
deficiencies identified in the NOD had been, or were being, addressed. 
The NOD Response contains documented internal operational changes 
within WDNR, a copy of the fee structure included in Wisconsin's 2005-
07 biennial budget bill enacted into law as 2005 Wisconsin Act 25 
(published July 26, 2005), and numerous attachments describing WDNR's 
permit program, program costs, fee structure, and workload.
    In an action dated February 27, 2006, EPA determined that Wisconsin 
had demonstrated that it has resolved each of the issues listed in the 
March 4, 2004, NOD. See 71 FR 9720 for the analysis of WDNR's submittal 
and EPA's approval.

III. What action is EPA taking?

    EPA is approving the requested revisions and updates to WDNR's 
title V operation permit program.

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.

[[Page 67202]]

Executive Order 13771: Reducing Regulations and Controlling Regulatory 
Costs

    This action is an Executive Order 13771 (82 FR 9339, January 30, 
2017) 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 approves 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 approves 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 approves 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 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: November 19, 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.
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[FR Doc. 2019-26296 Filed 12-6-19; 8:45 am]
 BILLING CODE 6560-50-P


