[Federal Register Volume 77, Number 116 (Friday, June 15, 2012)]
[Rules and Regulations]
[Pages 35870-35873]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-14417]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2007-1179; FRL-9685-7]


Approval of Air Quality Implementation Plans; Wisconsin; Partial 
Disapproval of ``Infrastructure'' State Implementation Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Pursuant to its authority under the Clean Air Act (CAA), EPA 
is taking final action to disapprove two narrow portions of submissions 
made by the Wisconsin Department of Natural Resources (WDNR) to address 
the section 110(a)(1) and (2) requirements of the CAA, often referred 
to as the ``infrastructure'' State Implementation Plan (SIP). 
Specifically, we are finalizing the disapproval of portions of WDNR's 
submissions intended to meet certain requirements of section 
110(a)(2)(C) with respect to the 1997 8-hour ozone National Ambient Air 
Quality Standards (NAAQS) and 1997 24-hour PM2.5 NAAQS. 
Among other conditions, section 110(a)(2)(C) of the CAA requires states 
to correctly address oxides of nitrogen (NOX) as a precursor 
to ozone in their respective prevention of significant deterioration 
(PSD) programs. EPA is finalizing disapproval of a portion of 
Wisconsin's submissions intended to satisfy this requirement. EPA is 
also finalizing disapproval of a portion of Wisconsin's submissions 
because the SIP currently contains a new source review (NSR) exemption 
for fuel changes as major modifications where the source was capable of 
accommodating the change before January 6, 1975. The proposed rule 
associated with this final action was published on April 20, 2012.

DATES: This final rule is effective on July 16, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2007-1179. 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., Confidential Business 
Information 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 U.S. 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 Andy Chang at (312) 886-0258 before visiting the Region 5 
office.

FOR FURTHER INFORMATION CONTACT: Andy Chang, Environmental Engineer, 
Attainment Planning and Maintenance Section, Air Programs Branch (AR-
18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson 
Boulevard, Chicago, Illinois 60604, (312) 886-0258, [email protected].

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 is the background for this action?
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. What is the background for this action?

    Under sections 110(a)(1) and (2) of the CAA, and implementing EPA 
guidance, states were required to submit either revisions to their 
existing EPA approved SIPs necessary to provide for implementation, 
maintenance, and enforcement of the 1997 ozone NAAQS and the 1997 
PM2.5 NAAQS, or certifications that their existing SIPs for 
ozone and particulate matter already met those basic requirements. The 
statute requires that states make these submissions within 3 years 
after the promulgation of new or revised NAAQS. However, intervening 
litigation over the 1997 ozone NAAQS and the 1997 PM2.5 
NAAQS created uncertainty about how states were to proceed.\1\ 
Accordingly, both EPA and the states were delayed in addressing these 
basic SIP requirements.
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    \1\ See, e.g., Whitman v. American Trucking Associations, Inc., 
531 U.S. 457 (2001).
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    In a consent decree with Earth Justice, EPA agreed to make 
completeness findings with respect to these SIP submissions. Pursuant 
to this consent decree, EPA published completeness findings for all 
states for the 1997 8-hour ozone NAAQS on March 27, 2008, and for all 
states for the 1997 PM2.5 NAAQS on October 22, 2008.
    On October 2, 2007, EPA issued a guidance document entitled 
``Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) 
for the 1997 8-hour Ozone and PM2.5 National Ambient Air 
Quality Standards,'' making recommendations to states concerning these 
SIP submissions (the 2007 Guidance). Within the 2007 Guidance, EPA gave 
general guidance relevant to matters such as the timing and content of 
the submissions. Wisconsin made its infrastructure SIP submission for 
the 1997 ozone and PM2.5 NAAQS on December 12, 2007. The 
State provided supplemental submissions to EPA on January 24, 2011, and 
March 28, 2011.
    On April 28, 2011, EPA published its proposed action on the Region 
5 states' submissions (see 76 FR 23757). Notably, we proposed to find 
that Wisconsin had met the requirements of section 110(a)(2)(C) 
concerning state PSD programs generally, and in particular the 
requirement to include NOX as a precursor to ozone (see 76 
FR 23757 at 23760-23761), thereby satisfying the

[[Page 35871]]

requirement that the State has an adequate PSD program pursuant to 
section 110(a)(2)(C) for both the 1997 ozone and 1997 PM2.5 
NAAQS.\2\
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    \2\ EPA noted that each state's PSD program must meet certain 
basic program requirements, e.g., if a state lacks specific required 
provisions needed to address NOX as a precursor to ozone, 
the provisions of section 110(a)(2)(C) requiring an adequate 
permitting program must be considered not to be met, irrespective of 
the pollutant being addressed in the infrastructure SIP submission.
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    During the comment period for the April 28, 2011, proposed 
rulemaking, EPA received three sets of comments. Two of the commenters 
observed that although we had proposed to approve Wisconsin's 
infrastructure SIP as meeting the correct requirements for 
NOX as a precursor to ozone in the State's PSD program, 
Wisconsin's PSD SIP does not contain the most recent PSD program 
revisions required by EPA for this purpose. One of the commenters also 
noted that Wisconsin's existing SIP does not meet current EPA 
requirements with respect to NSR because Wisconsin has not included 
fuel changes as ``major modifications'' in its NSR program for certain 
sources under certain conditions. A detailed discussion of these 
comments as they relate to Wisconsin's SIP was included in the April 
20, 2012, proposed rulemaking (see 77 FR 23647), which is the basis for 
this final action.
    As a result of the comments received in response to our April 28, 
2011, proposed rulemaking, we did not promulgate final action on those 
two limited aspects of Wisconsin's infrastructure SIP in our July 13, 
2011, final rulemaking (see 76 FR 41075). We did, however, promulgate 
final action on all other applicable elements of Wisconsin's 
infrastructure SIP. In the July 13, 2011, rulemaking, we committed to 
address the issues raised in the comments concerning NOX as 
a precursor to ozone and the definition of ``major modification'' 
related to fuel changes for certain sources in Wisconsin in a separate 
action; our April 20, 2012, proposed rulemaking and this final 
rulemaking serve as that action.
    On April 20, 2012, we proposed to disapprove the State's 
infrastructure SIP submission with respect to two narrow issues related 
to section 110(a)(2)(C). During the comment period on the April 20, 
2012, proposed rulemaking, EPA received two comment letters. EPA 
addresses the significant and relevant comments in this final action, 
specifically in the following section.

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

    The public comment period for EPA's proposal to disapprove the 
narrow portions of the submittals from Wisconsin addressing the current 
regulatory requirements for NOX as a precursor to ozone in 
PSD permitting and the definition of ``major modification'' related to 
fuel changes for certain sources \3\ closed on May 21, 2012. EPA 
received two comment letters, one of which was not relevant to this 
rulemaking. A synopsis of the significant individual comments contained 
in the other letter, as well as EPA's response to each comment, is 
discussed below:
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    \3\ Although the evaluation of states' definitions of ``major 
modification'' related to fuel changes was not a criterion outlined 
in EPA's April 28, 2011 proposed rulemaking, this issue is 
intrinsically linked to states' PSD regulations, covered under 
section 110(a)(2)(C).
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    Comment 1: WDNR submitted a comment letter that states that 
although Wisconsin's SIP does not explicitly include all portions of 
the regulatory language EPA required states to adopt in the ``Final 
Rule to Implement the 8-Hour Ozone National Ambient Air Quality 
Standard--Phase 2; Final Rule to Implement Certain Aspects of the 1990 
Amendments Relating to New Source Review and Prevention of Significant 
Deterioration as They Apply in Carbon Monoxide, Particulate Matter, and 
Ozone NAAQS; Final Rule for Reformulated Gasoline'' (Phase 2 Rule) (see 
70 FR 71612), WDNR does in fact consider NOX as a precursor 
of ozone in its permitting decisions. WDNR also states that it has 
consistently treated NOX as a precursor to ozone, and 
existing language in Wisconsin Administrative Code section NR 
405.02(25i) clearly gives WDNR the authority to regulate NOX 
as a precursor for ozone, as it has been identified as such by EPA. 
WDNR further states that it is not aware of any situation where it has 
not consistently used this existing authority in its major NSR program. 
Lastly, WDNR states that in response to EPA's and the public's concern 
over this issue, it currently has under development a revision to 
Wisconsin Administrative Code section NR 405.02(25i) to ensure that the 
language is wholly consistent with Federal language contained in 40 CFR 
51.166, as required by the Phase 2 Rule. Upon revision and final 
adoption at the state level, WDNR has committed to submit the revisions 
to EPA for approval and incorporation into the SIP.
    Response 1: EPA recognizes that Wisconsin currently has some 
authority to treat NOX as a precursor to ozone in permitting 
decisions, and EPA appreciates the State's efforts to ensure that 
NOX is correctly evaluated as a precursor to ozone in fact. 
However, the Phase 2 Rule obligates states to make explicit regulatory 
changes in order to clarify and remove any ambiguity concerning the 
requirement that NOX be treated as a precursor to ozone in 
permitting contexts in specific ways. The Phase 2 Rule requires states 
to submit SIP revisions incorporating the requirements of the rule, 
including these specific NOX as a precursor to ozone 
provisions, by June 15, 2007 (see 70 FR 71612 at 71683). As explained 
in our April 20, 2012, proposed rulemaking, states that had not 
incorporated the necessary changes specific to NOX as a 
precursor to ozone as required by the Phase 2 Rule were included in 
EPA's March 27, 2008, ``Completeness Findings for Section 110(a) State 
Implementation Plans for the 8-hour Ozone NAAQS'' and received a 
finding of failure to submit related to section 110(a)(2)(C) for this 
reason (see 73 FR 16205).
    As a result of EPA's own regulations, submission deadlines, and 
actions germane to the explicit identification of NOX as a 
precursor to ozone in Federally approved PSD programs, EPA is 
finalizing the disapproval of portions of Wisconsin's infrastructure 
SIP submission with respect to the NOX as a precursor to 
ozone provision requirements of section 110(a)(2)(C) for the 1997 ozone 
and PM2.5 NAAQS.
    EPA appreciates Wisconsin's efforts to develop SIP revisions that 
will be wholly consistent with the Federal language contained in 40 CFR 
51.166. EPA will work actively with the State to ensure that the 
necessary SIP revisions are completed as expeditiously as possible. In 
the interim, we will work actively with the State to ensure that 
NOX is correctly treated as a precursor to ozone in a manner 
consistent with the requirements of the Phase 2 Rule.
    Comment 2: In the same comment letter, WDNR recognizes that its 
definition of ``major modification'' as found in Wisconsin 
Administrative Code section NR 405.02(21)(b)5.a. does not include 
language that recognizes prohibitions on fuel use exemptions that may 
have been contained in Federally-issued PSD permits issued prior to 
EPA's approval of Wisconsin's PSD SIP. However, WDNR does not agree 
with the notion that the omission in fact allows more exemptions than 
what is allowed by Federal rules.
    WDNR states that under its title V operating permit program, all 
applicable requirements to a source are included in

[[Page 35872]]

its operation permit. As a result, WDNR states that it clearly 
recognizes that requirements contained in a Federally-issued PSD permit 
would be an applicable requirement to the source and that it would be 
included in the source's title V operating permit, therefore making the 
requirement fully enforceable under State and Federal law.
    WDNR states that this issue is a very narrow one, and that it is 
not aware of a single situation where an omission has occurred in 
practice. Further, WDNR believes that the omission in its definition of 
``major modification'' was an oversight that occurred during rule 
writing, and cites a previous commitment to EPA to make a correction. 
Lastly, WDNR states that a correction to the definition in question has 
begun, and will be part of the same rulemaking effort that will address 
the NOX as a precursor to ozone provision.
    Response 2: EPA agrees that this issue is a very narrow one, and 
that an omission in practice is perhaps nonexistent. Nonetheless, as 
explained in EPA's April 20, 2012, proposed rulemaking, this is an 
issue that has previously arisen, and that the State has acknowledged 
and agreed to address. WDNR's previous commitment to address the issue, 
dated June 1, 2011, did not include a date certain by which it would 
complete the requested revision of the State's regulation. As a result, 
EPA could not promulgate an approval or conditional approval of the 
section 110(a)(2)(C) portion of Wisconsin's infrastructure SIP for the 
1997 ozone and PM2.5 NAAQS with respect to this narrow 
issue.
    EPA recognizes that in practice, WDNR has the authority and means 
to ensure adherence to the prohibitions on fuel use exemptions in 
certain instances, consistent with our own definition of ``major 
modification.'' However, our regulations along with a previous request 
to the State to make appropriate revisions to the SIP necessary to 
address this issue result in finalizing the disapproval of Wisconsin's 
infrastructure SIP submissions for the 1997 ozone and PM2.5 
NAAQS. This narrow disapproval pertains to the NSR exemption for fuel 
changes as ``major modifications'' where the source was capable of 
accommodating the change before January 6, 1975. Once again, we note 
that this disapproval is a narrow one, and limited to the specific 
state regulatory language concerning the exemption.
    EPA appreciates WDNR's efforts to correct the definition of ``major 
modification'' and will actively work with the State to ensure that 
alignment of the State and Federal definition for ``major 
modification'' occurs as expeditiously as possible. In addition, we 
will work actively with the State as needed to ensure adherence to the 
prohibitions on fuel use exemptions in Federally-issued permits.

III. What action is EPA taking?

    For the reasons discussed in the proposed rulemaking, EPA is taking 
final action to disapprove two narrow portions of Wisconsin's 
infrastructure SIP submissions for the 1997 ozone and PM2.5 
NAAQS with respect to section 110(a)(2)(C). Specifically, we are 
finalizing disapproval of portions of Wisconsin's submissions because 
the current SIP does not satisfy the requirements of the Phase 2 Rule 
for explicit identification of NOx as a precursor to ozone in PSD 
permitting. We are also finalizing disapproval of portions of 
Wisconsin's submissions because the current SIP contains an 
impermissible NSR exemption for fuel changes as ``major modifications'' 
where the source was capable of accommodating the change before January 
6, 1975. These grounds for disapproval are narrow, and pertain only to 
these specific deficiencies in Wisconsin's SIP. The State has begun the 
process for rectifying these two issues, and we will work with the 
State to rectify these issues promptly.
    Under section 179(a) of the CAA, final disapproval of a submission 
that addresses a requirement of a Part D Plan (section 171-section 193 
of the CAA), or is required in response to a finding of substantial 
inadequacy as described in section 110(k)(5) starts a sanction clock. 
The provisions in the submissions we are disapproving were not 
submitted by Wisconsin to meet either of those requirements. Therefore, 
no sanctions under section 179 will be triggered.
    The full or partial disapproval of a SIP revision triggers the 
requirement under section 110(c) that EPA promulgate a Federal 
Implementation Plan (FIP) no later than 2 years from the date of the 
disapproval unless the State corrects the deficiency, and the 
Administrator approves the plan or plan revision before the 
Administrator promulgates such FIP. As previously mentioned, Wisconsin 
has begun the process to rectify each of these deficiencies. Further, 
EPA anticipates acting on WDNR's submissions to address these two 
issues within the 2-year time frame prior to our FIP obligation on 
these very narrow issues. In the interim, EPA expects WDNR to address 
NOx as a precursor to ozone correctly for PSD permitting consistent 
with the requirements of the Phase 2 Rule, and to ensure adherence to 
the prohibitions on fuel use exemptions in Federally-issued permits. 
The State has indicated that it will be addressing both issues 
correctly in permitting decisions in the interim, so EPA anticipates 
that the practical implications of these disapprovals should be 
minimal.

IV. Statutory and Executive Order Reviews

Executive Order 12866: Regulatory Planning and Review

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

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).

Regulatory Flexibility Act

    This action merely disapproves state law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. Accordingly, the Administrator certifies that 
this rule 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 rule disapproves 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 13175: Consultation and Coordination With Indian Tribal 
Governments

    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes,

[[Page 35873]]

as specified by Executive Order 13175 (59 FR 22951, November 9, 2000).

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 disapproves a state rule implementing a 
Federal standard, and does not alter the relationship or the 
distribution of power and responsibilities established in the CAA.

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

    This rule 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 disapproves a state rule 
implementing a Federal Standard.

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 CAA. 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 CAA. 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.

Paperwork Reduction Act

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

Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
section 804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by August 14, 2012. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purposes of judicial review nor does 
it extend the time within which a petition for judicial review may be 
filed, and shall not postpone the effectiveness of such rule or action. 
This action may not be challenged later in proceedings to enforce its 
requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Ozone, Particulate matter, 
Reporting and recordkeeping requirements.

    Dated: May 30, 2012.
Susan Hedman,
Regional Administrator, Region 5.

    Therefore, 40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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


0
2. Amend Sec.  52.2591 by adding paragraphs (c) and (d) to read as 
follows:


Sec.  52.2591  Section 110(a)(2) infrastructure requirements.

* * * * *
    (c) Disapproval. EPA is disapproving the portions of Wisconsin's 
infrastructure SIP for the 1997 ozone NAAQS with respect to two narrow 
issues that relate to section 110(a)(2)(C):
    (1) The requirement for consideration of NOx as a precursor to 
ozone; and
    (2) The definition of ``major modification'' related to fuel 
changes for certain sources.
    (d) Disapproval. EPA is disapproving the portions of Wisconsin's 
infrastructure SIP for the 1997 PM2.5 NAAQS with respect to 
two narrow issues that relate to section 110(a)(2)(C):
    (1) The requirement for consideration of NOx as a precursor to 
ozone; and
    (2) The definition of ``major modification'' related to fuel 
changes for certain sources.

[FR Doc. 2012-14417 Filed 6-14-12; 8:45 am]
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