[Federal Register Volume 78, Number 143 (Thursday, July 25, 2013)]
[Rules and Regulations]
[Pages 44881-44884]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-17837]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2011-0502; FRL-9838-1]


Approval and Promulgation of Air Quality Implementation Plans; 
Wisconsin; Disapproval of PM2.5 Permitting Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to disapprove a revision to 
Wisconsin's State Implementation Plan (SIP) submitted by the Wisconsin 
Department of Natural Resources (WDNR) on May 12, 2011. The revision 
concerns permitting requirements relating to particulate matter of less 
than 2.5 micrometers (PM2.5). EPA is taking final action to 
disapprove the revisions because they do not meet the 2008 
PM2.5 SIP requirements. The proposed rulemaking was 
published December 18, 2012. During the comment period which ended on 
January 17, 2013, no comments were received.

DATES: This final rule is effective on August 26, 2013.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2011-0502. All documents in the docket are listed on 
the http://www.regulations.gov Web site. Although listed in the index, 
some information is not publicly available, i.e., Confidential Business 
Information (CBI) 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 
electronically through http://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 Andrea 
Morgan at (312) 353-6058 before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Andrea Morgan, Environmental Engineer, 
Air Permits Section, Air Programs Branch (AR-18J), Environmental 
Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, 
Illinois 60604, (312) 353-6058, [email protected].

[[Page 44882]]


SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This SUPPLEMENTARY INFORMATION 
section is arranged as follows:

I. Background
II. Recent D.C. Circuit Decision
III. Revision to the Definition of Regulated Pollutant
IV. What action is EPA taking on this submittal?
V. Statutory and Executive Order Reviews

I. Background

    This final rulemaking addresses the May 12, 2011, WDNR submittal, 
supplemented on March 5, 2012, revising the rules in the Wisconsin SIP 
to comply with the 2008 NSR Implementation Rule for PM2.5. 
The original submission, and the supplement thereto, may be found in 
the docket for this action.
    In May 2008, EPA finalized regulations to implement the New Source 
Review (NSR) Implementation Rule for PM2.5 to include the 
major source threshold, significant emissions rate and offset ratios 
for PM2.5, interpollutant trading for offsets and 
applicability of NSR to PM2.5 precursors. On October 20, 
2010, EPA amended the requirements for PM2.5 under the 
Prevention of Significant Deterioration (PSD) program by adding maximum 
allowable increase in ambient pollutant concentrations and screening 
tools known as the Significant Impact Levels (SILs) and the Significant 
Monitoring Concentration (SMC) for PM2.5.
    Wisconsin's submittals included provisions that were designed to 
match the requirements set forth in the May 2008 and October 2010 
rules. Wisconsin submitted revisions to its rules NR 400, 404, 405, 
406, 407, 408, and 484 of the Wisconsin Administrative Code. The 
submittal included rules to define major source thresholds and 
significant emission increase levels; establish the SMC for 
PM2.5; establish interpollutant trading ratios for 
PM2.5, sulfur dioxide and nitrogen oxides; and clarify 
existing nonattainment area permitting rules. EPA announced through a 
memorandum, on July 21, 2011, a change in its policy concerning the 
development and adoption of interpollutant trading provisions for 
PM2.5. The new policy requires that any ratio involving 
PM2.5 precursors submitted to EPA for approval for use in a 
state's interpollutant offset program for PM2.5 
nonattainment areas must be accompanied by a technical demonstration 
that shows the net air quality benefits of such a ratio for the 
PM2.5 nonattainment area in which it will be applied. In a 
letter dated March 5, 2012, WDNR requested to withdraw its request to 
have NR 408.06(1)(cm), the provision pertaining to interpollutant 
trading ratios, included in its 2011 submittal.
    EPA published a proposed disapproval of Wisconsin's submittal on 
December 18, 2012, because the submittal did not meet the 2008 
PM2.5 SIP requirements. Specifically, the revisions 
submitted did not explicitly define the precursors of PM2.5, 
nor did they contain the prescribed language to ensure that gases that 
condense to form particulate matter (PM), known as condensables, are 
regulated within PM2.5 and PM of less than 10 micrometer 
(PM10) emission limits. During the comment period EPA 
received no comments on the proposed action.

II. Recent D.C. Circuit Decision

    On January 4, 2013, the U.S. Court of Appeals for the District of 
Columbia (D.C. Circuit or Court), in Natural Resources Defense Council 
v. EPA, 706 F.3d 428 (consolidated with 09-1102, 11-1430), remanded 
EPA's 2007 and 2008 rules implementing the 1997 PM2.5 
National Ambient Air Quality Standards (NAAQS). The Court ordered EPA 
to ``repromulgate these rules pursuant to Subpart 4 consistent with 
this opinion,'' as opposed to Subpart 1 of Part D, Title I, of the 
Clean Air Act (CAA). Id. at 437. Subpart 4 of Part D, Title I, of the 
CAA establishes additional provisions for PM nonattainment areas.
    The 2008 implementation rule addressed by the Court decision, 
``Implementation of New Source Review (NSR) Program for Particulate 
Matter Less Than 2.5 Micrometers (PM2.5),'' 73 FR 28321 (May 
16, 2008), promulgated NSR requirements for implementation of 
PM2.5 in both nonattainment areas (nonattainment NSR) and 
attainment/unclassifiable areas (PSD). As the requirements of subpart 4 
pertain only to nonattainment areas, EPA does not consider the portions 
of the 2008 rule that address requirements for PM2.5 
attainment and unclassifiable areas to be affected by the Court's 
opinion. Moreover, because EPA does not anticipate the need to revise 
any PSD requirements promulgated in the 2008 rule in order to comply 
with the Court's decision, EPA's disapproval of Wisconsin's submittal 
with respect to the PSD requirements promulgated by the 2008 
implementation rule does not conflict with the decision.
    Wisconsin's submission did include several provisions based on the 
nonattainment NSR requirements promulgated in the 2008 implementation 
rule. Since the proposed disapproval of Wisconsin's submittal predated 
the D.C. Circuit's decision, EPA did not include the nonattainment NSR 
provisions in the bases for disapproval. However, for any future 
nonattainment NSR submissions, WDNR should follow the Court's direction 
to implement the PM2.5 NAAQS consistent with subpart 4, 
which includes several provisions that affect the nonattainment NSR 
requirements in the 2008 rule. EPA expects to provide further guidance 
on this issue to assist the states with future submissions.
    On January 22, 2013, the D.C. Circuit, in Sierra Club v. EPA, 705 
F.3d 458, issued an order, inter alia, vacating the parts of two PSD 
regulations establishing a PM2.5 SMC (40 CFR 
51.166(i)(5)(i)(c) and 40 CFR 52.21(i)(5)(i)(c)), finding that EPA was 
precluded from using the PM2.5 SMCs to exempt permit 
applicants from the statutory requirement to compile preconstruction 
monitoring data.
    Wisconsin included provisions for a PM2.5 SMC in its 
submittal. Because the proposed disapproval of December 18, 2012, 
predated D.C. Circuit's January 22, 2013, remand, EPA did not include 
the PM2.5 SMC as part of the basis for disapproval. However, 
as a result of the Court's decision, it is clear that EPA cannot 
approve any reference to the PM2.5 SMC in the State's PSD 
SIP.

III. Revision to the Definition of Regulated Pollutant

    In an October 25, 2012, final rule EPA revised the definition of 
``regulated NSR pollutant'' to correct an inadvertent error contained 
in the regulations for PSD at 40 CFR 51.166(b)(49)(vi) and 52.21 (77 FR 
65107). The October 2012 final action removed an unintended new 
requirement on state and local agencies and the regulated community 
that PM emissions must generally include the condensable PM fraction. 
PM10 and PM2.5 remain regulated as criteria 
pollutants and emissions of both of these PM indicators are still 
required to include the condensable fraction of PM emitted by a source 
in applicability determinations and in establishing enforceable 
emissions limitations. The October 2012 final rule became effective 
December 24, 2012.
    In the proposed disapproval of Wisconsin's PM2.5 
permitting requirements, which preceded the effective date of the 
revised condensables definition, EPA cited to the prior definition of 
``regulated NSR pollutant,'' which included the requirement to consider 
the condensable fraction for ``PM emissions,'' as well as the 
condensable

[[Page 44883]]

fraction for PM2.5 and PM10 emissions. The 
revised definition reads, ``PM2.5 emissions and 
PM10 emissions shall include gaseous emissions from a source 
or activity which condense to form particulate matter at ambient 
temperatures.'' While this definition is less stringent than what was 
cited in the proposed disapproval of Wisconsin's revisions, because it 
no longer requires the inclusion of condensables for PM, it does not 
affect the bases for disapproval of the revisions, because the 
requirements to account for the condensable fraction of 
PM2.5 and PM10 emissions in permitting decisions 
remain.
    The October 2012 final rule also reorganized the placement of the 
definition of ``regulated NSR pollutant.'' The provision of the 2008 
PM2.5 NSR Implementation Rule that requires condensables be 
accounted for in PM2.5 and PM10 permitting 
decisions is now codified in 40 CFR 51.166(b)(49)(i)(a) and 
52.21(b)(50)(i)(a).

IV. What action Is EPA taking on this submittal?

    EPA is taking final action to disapprove the revisions to Wisconsin 
rules NR 400, 404, 405, 406, 407, 408 and 484, submitted by the State 
on May 12, 2011, for approval into the SIP. The rule revisions 
submitted are not consistent with Federal regulations governing state 
permitting programs. See the December 18, 2012, proposed rule.
    Under section 179(a) of the CAA, final disapproval of a submission 
that addresses a requirement of a part D plan (section 171--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 
submission that EPA is taking final action to disapprove was not 
submitted to meet either of these requirements. Therefore, with the 
final action to disapprove these submissions, no sanctions under 
section 179 will be triggered.
    The full or partial disapproval of a SIP revision triggers the 
requirement under section 110(c) of the CAA that EPA promulgate a 
Federal Implementation Plan (FIP) no later than two 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. However, since elements of this SIP 
revision were narrowly disapproved under the Infrastructure SIP, the 
two year timeframe began with the final narrow disapproval of 
Wisconsin's Infrastructure SIP (October 29, 2012; 77 FR 65478). EPA 
will actively work with Wisconsin to incorporate changes to its PSD 
program that explicitly identify PM2.5 precursors and 
account for the condensable fraction of PM2.5 and 
PM10 emissions in establishing enforceable permit emissions 
limits, consistent with the 2008 NSR Rule. In the interim, EPA expects 
WDNR to adhere to the associated requirements of the 2008 NSR Rule in 
its PSD program, specifically with respect to the explicit 
identification of PM2.5 precursors, and accounting for the 
condensable fraction of PM2.5 and PM10 emissions 
in applicability determinations and enforceable permit emissions 
limits.

V. 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.

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.).

Regulatory Flexibility Act

    This action merely disapproves state law as not 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 an 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 disapproves a state rule, and does not 
alter the relationship or the distribution of power and 
responsibilities established in the CAA.

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

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.

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 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.

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

[[Page 44884]]

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 SIP submissions, EPA's role is to 
approve or disapprove state choices, based on the criteria of the CAA. 
Accordingly, this action merely disapproves certain state requirements 
for inclusion into the SIP under section 110 and subchapter I, part D 
of the CAA 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.

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. 
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 September 23, 2013. 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, Nitrogen dioxide, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides.

    Dated: July 10, 2013.
Susan Hedman,
Regional Administrator, Region 5.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart P--Indiana

0
2. Section 52.2592 is added to read as follows:


Sec.  52.2592  Review of new sources and modifications.

    Disapproval--On May 12, 2011, the Wisconsin Department of Natural 
Resources submitted a proposed revision to its State Implementation 
Plan to update its rules to match the 2008 New Source Review 
Implementation Rule for PM2.5. The State supplemented the 
submittal on March 5, 2012. EPA determined that this submittal was not 
approvable because the revisions did not explicitly identify the 
precursors to PM2.5 and did not contain the prescribed 
language to ensure that gases that condense to form PM, known as 
condensables, are regulated within PM2.5 and PM10 
emission limits.
[FR Doc. 2013-17837 Filed 7-24-13; 8:45 am]
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