EPA to Approve SIP Changes Related to Forest County Potawatomi Community Class I Area

On May 12, 2011, the DNR submitted provisions affecting the Forest County Potawatomi Community (FCPC) Class I Area for inclusion in Wisconsin’s State Implementation Plan (SIP). The EPA has released a draft rule incorporating the FCPC Class I Area rules, and is now accepting comments on the proposal.

On April 29, 2008, at 73 FR 23086, the EPA granted the application of the FCPC 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 lands held in trust for the FCPC to Class I status. At the same time, the EPA published two actions resolving disputes with Wisconsin and Michigan under the CAA, in which those states had challenged the FCPC’s application for Class I redesignation.

The dispute resolution reached by Wisconsin and the FCPC was formalized in a Memorandum of Agreement (MOA) in 1999. The 1999 MOA provided a framework for establishing how the State and the FCPC would implement the Class I Area under their respective authorities.

Pursuant to the MOA, all major sources in Wisconsin that are located within a 10-mile radius of any redesignated FCPC 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 FCPC’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.

The provisions of the MOA were incorporated into Wisconsin’s Administrative Code at NR 400.02(66m), NR 405.19, and NR 406.08(4).

The rules define the geographic center of the FCPC Class I Area for purposes of air quality management. Proposed new major sources or major modifications of existing sources locating within 22.25 miles of the geographic center of the FCPC 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 FCPC 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 FCPC 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 FCPC 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.

Although the rules implementing the MOA are already a part of Wisconsin’s Administrative Code, the 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.

Comments on the proposed SIP revisions must be received by May 7, 2012.