[Federal Register Volume 79, Number 92 (Tuesday, May 13, 2014)]
[Proposed Rules]
[Pages 27241-27257]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-11022]
[[Page 27241]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2011-0888; FRL-9910-74-Region 5]
Approval and Promulgation of Air Quality Implementation Plans;
Illinois, Michigan, Minnesota, Wisconsin; Infrastructure SIP
Requirements for the 2008 Lead NAAQS
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve elements of state implementation plan (SIP) submissions from
Michigan and Wisconsin while proposing to approve some elements and
disapprove other elements of SIP submissions from Illinois and
Minnesota regarding the infrastructure requirements of section 110 of
the Clean Air Act (CAA) for the 2008 lead National Ambient Air Quality
Standards (2008 Pb NAAQS). The infrastructure requirements are designed
to ensure that the structural components of each state's air quality
management program are adequate to meet the state's responsibilities
under the CAA. Illinois and Minnesota already administer federally
promulgated regulations that address the proposed disapprovals
described in today's rulemaking and as a result, there is no practical
effect for either of these states.
DATES: Comments must be received on or before June 12, 2014.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2011-0888 by one of the following methods:
1. www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. Email: [email protected].
3. Fax: (312) 408-2279.
4. Mail: Douglas Aburano, Chief, Attainment Planning and
Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental
Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.
5. Hand Delivery: Douglas Aburano, Chief, Attainment Planning and
Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental
Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.
Such deliveries are only accepted during the Regional Office normal
hours of operation, and special arrangements should be made for
deliveries of boxed information. The Regional Office official hours of
business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding
Federal holidays.
Instructions: Direct your comments to Docket ID. EPA-R05-OAR-2011-
0888. EPA's policy is that all comments received will be included in
the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an email comment
directly to EPA without going through www.regulations.gov your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
Docket: 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., CBI 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, Environmental
Engineer, 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 should I consider as I prepare my comments for EPA?
II. What is the background of these SIP submissions?
A. What state SIP submissions does this rulemaking address?
B. Why did the states make these SIP submissions?
C. What is the scope of this rulemaking?
III. What guidance is EPA using to evaluate these SIP submissions?
IV. What is the result of EPA's review of these SIP submissions?
A. Section 110(a)(2)(A)--Emission Limits and Other Control
Measures
B. Section 110(a)(2)(B)--Ambient Air Quality Monitoring/Data
System
C. Section 110(a)(2)(C)--Program for Enforcement of Control
Measures; PSD
D. Section 110(a)(2)(D)--Interstate Transport
E. Section 110(a)(2)(E)--Adequate Resources
F. Section 110(a)(2)(F)--Stationary Source Monitoring System
G. Section 110(a)(2)(G)--Emergency Powers
H. Section 110(a)(2)(H)--Future SIP Revisions
I. Section 110(a)(2)(I)--Nonattainment Area Plan or Plan
Revisions Under Part D
J. Section 110(a)(2)(J)--Consultation With Government Officials;
Public Notifications; PSD; Visibility Protection
K. Section 110(a)(2)(K)--Air Quality Modeling/Data
L. Section 110(a)(2)(L)--Permitting Fees
M. Section 110(a)(2)(M)--Consultation/Participation by Affected
Local Entities
V. What action is EPA taking?
VI. Statutory and Executive Order Reviews
I. What should I consider as I prepare my comments for EPA?
When submitting comments, remember to:
1. Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date, and page number).
2. Follow directions--EPA may ask you to respond to specific
questions or organize comments by referencing a Code of Federal
Regulations (CFR) part or section number.
3. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
4. Describe any assumptions and provide any technical information
and/or data that you used.
5. If you estimate potential costs or burdens, explain how you
arrived at
[[Page 27242]]
your estimate in sufficient detail to allow for it to be reproduced.
6. Provide specific examples to illustrate your concerns, and
suggest alternatives.
7. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
8. Make sure to submit your comments by the comment period deadline
identified.
II. What is the background of these SIP submissions?
A. What state SIP submissions does this rulemaking address?
This rulemaking addresses submissions from the following states in
EPA Region 5: Illinois Environmental Protection Agency (Illinois EPA);
Michigan Department of Environmental Quality (MDEQ); Minnesota
Pollution Control Agency (MPCA); and Wisconsin Department of Natural
Resources (WDNR). The states submitted their 2008 Pb NAAQS
infrastructure SIPs on the following dates: Illinois--December 31,
2012; Michigan--April 3, 2012, and supplemented on August 9, 2013, and
September 19, 2013; Minnesota--June 19, 2012; and, Wisconsin--July 26,
2012.
B. Why did the states make these SIP submissions?
Under sections 110(a)(1) and (2) of the CAA, states are required to
submit infrastructure SIPs to ensure that their SIPs provide for
implementation, maintenance, and enforcement of the NAAQS, including
the 2008 Pb NAAQS. These submissions must contain any revisions needed
for meeting the applicable SIP requirements of section 110(a)(2), or
certifications that their existing SIPs for Pb and ozone already meet
those requirements.
EPA highlighted this statutory requirement in an October 2, 2007,
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'' (2007 Memo).
On September 25, 2009, EPA issued an additional guidance document
pertaining to the 2006 PM2.5 \1\ NAAQS entitled
``Guidance on SIP Elements Required Under Sections 110(a)(1) and (2)
for the 2006 24-Hour Fine Particle (PM2.5) National Ambient
Air Quality Standards (NAAQS)'' (2009 Memo), followed by the October
14, 2011, ``Guidance on infrastructure SIP Elements Required Under
Sections 110(a)(1) and (2) for the 2008 Lead (Pb) National Ambient Air
Quality Standards (NAAQS)'' (2011 Memo). Most recently, EPA issued
``Guidance on Infrastructure State Implementation Plan (SIP) Elements
under Clean Air Act Sections 110(a)(1) and (2)'' on September 13, 2013
(2013 Memo). The SIP submissions referenced in this rulemaking pertain
to the applicable requirements of section 110(a)(1) and (2), and
primarily address the 2008 Pb NAAQS. To the extent that the prevention
of significant deterioration (PSD) program is comprehensive and non-
NAAQS specific, a narrow evaluation of other NAAQS, such as the 1997 8-
hour ozone and 2006 PM2.5 NAAQS will be included in the
appropriate sections.
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\1\ PM2.5 refers to particulate matter of 2.5 microns
or less in diameter, oftentimes referred to as ``fine'' particles.
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C. What is the scope of this rulemaking?
EPA is acting upon the SIP submissions from Illinois, Michigan,
Minnesota, and Wisconsin that addresses the infrastructure requirements
of CAA sections 110(a)(1) and 110(a)(2) for the 2008 Pb NAAQS. The
requirement for states to make a SIP submission of this type arises out
of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must
make SIP submissions ``within 3 years (or such shorter period as the
Administrator may prescribe) after the promulgation of a national
primary ambient air quality standard (or any revision thereof),'' and
these SIP submissions are to provide for the ``implementation,
maintenance, and enforcement'' of such NAAQS. The statute directly
imposes on states the duty to make these SIP submissions, and the
requirement to make the submissions is not conditioned upon EPA's
taking any action other than promulgating a new or revised NAAQS.
Section 110(a)(2) includes a list of specific elements that ``[e]ach
such plan'' submission must address.
EPA has historically referred to these SIP submissions made for the
purpose of satisfying the requirements of CAA sections 110(a)(1) and
110(a)(2) as ``infrastructure SIP'' submissions. Although the term
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to
distinguish this particular type of SIP submission from submissions
that are intended to satisfy other SIP requirements under the CAA, such
as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to
address the nonattainment planning requirements of part D of title I of
the CAA, ``regional haze SIP'' submissions required by EPA rule to
address the visibility protection requirements of CAA section 169A, and
nonattainment new source review (NNSR) permit program submissions to
address the permit requirements of CAA, title I, part D.
Section 110(a)(1) addresses the timing and general requirements for
infrastructure SIP submissions, and section 110(a)(2) provides more
details concerning the required contents of these submissions. The list
of required elements provided in section 110(a)(2) contains a wide
variety of disparate provisions, some of which pertain to required
legal authority, some of which pertain to required substantive program
provisions, and some of which pertain to requirements for both
authority and substantive program provisions.\2\ EPA therefore believes
that while the timing requirement in section 110(a)(1) is unambiguous,
some of the other statutory provisions are ambiguous. In particular,
EPA believes that the list of required elements for infrastructure SIP
submissions provided in section 110(a)(2) contains ambiguities
concerning what is required for inclusion in an infrastructure SIP
submission.
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\2\ For example: Section 110(a)(2)(E)(i) provides that states
must provide assurances that they have adequate legal authority
under state and local law to carry out the SIP; section 110(a)(2)(C)
provides that states must have a SIP-approved program to address
certain sources as required by part C of title I of the CAA; and
section 110(a)(2)(G) provides that states must have legal authority
to address emergencies as well as contingency plans that are
triggered in the event of such emergencies.
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The following examples of ambiguities illustrate the need for EPA
to interpret some section 110(a)(1) and section 110(a)(2) requirements
with respect to infrastructure SIP submissions for a given new or
revised NAAQS. One example of ambiguity is that section 110(a)(2)
requires that ``each'' SIP submission must meet the list of
requirements therein, while EPA has long noted that this literal
reading of the statute is internally inconsistent and would create a
conflict with the nonattainment provisions in part D of title I of the
CAA, which specifically address nonattainment SIP requirements.\3\
Section 110(a)(2)(I) pertains to nonattainment SIP requirements and
part D addresses when attainment plan SIP submissions to address
nonattainment area requirements are due. For example, section 172(b)
requires EPA to establish a schedule for submission of such plans for
certain pollutants when the Administrator promulgates the designation
of an area as nonattainment,
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and section 107(d)(1)(B) allows up to two years, or in some cases three
years, for such designations to be promulgated.\4\ This ambiguity
illustrates that rather than apply all the stated requirements of
section 110(a)(2) in a strict literal sense, EPA must determine which
provisions of section 110(a)(2) are applicable for a particular
infrastructure SIP submission.
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\3\ See, e.g., ``Rule To Reduce Interstate Transport of Fine
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions
to Acid Rain Program; Revisions to the NOX SIP Call;
Final Rule,'' 70 FR 25162, at 25163-65 (May 12, 2005) (explaining
relationship between timing requirement of section 110(a)(2)(D)
versus section 110(a)(2)(I)).
\4\ EPA notes that this ambiguity within section 110(a)(2) is
heightened by the fact that various subparts of part D set specific
dates for submission of certain types of SIP submissions in
designated nonattainment areas for various pollutants. Note, e.g.,
that section 182(a)(1) provides specific dates for submission of
emissions inventories for the ozone NAAQS. Some of these specific
dates are necessarily later than three years after promulgation of
the new or revised NAAQS.
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Another example of ambiguity within sections 110(a)(1) and
110(a)(2) with respect to infrastructure SIPs pertains to whether
states must meet all of the infrastructure SIP requirements in a single
SIP submission, and whether EPA must act upon such SIP submission in a
single action. Although section 110(a)(1) directs states to submit ``a
plan'' to meet these requirements, EPA interprets the CAA to allow
states to make multiple SIP submissions separately addressing
infrastructure SIP elements for the same NAAQS. If states elect to make
such multiple SIP submissions to meet the infrastructure SIP
requirements, EPA can elect to act on such submissions either
individually or in a larger combined action.\5\ Similarly, EPA
interprets the CAA to allow it to take action on the individual parts
of one larger, comprehensive infrastructure SIP submission for a given
NAAQS without concurrent action on the entire submission. For example,
EPA has sometimes elected to act at different times on various elements
and sub-elements of the same infrastructure SIP submission.\6\
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\5\ See, e.g., ``Approval and Promulgation of Implementation
Plans; New Mexico; Revisions to the New Source Review (NSR) State
Implementation Plan (SIP); Prevention of Significant Deterioration
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR
4339 (January 22, 2013) (EPA's final action approving the structural
PSD elements of the New Mexico SIP submitted by the State separately
to meet the requirements of EPA's 2008 PM2.5 NSR rule),
and ``Approval and Promulgation of Air Quality Implementation Plans;
New Mexico; Infrastructure and Interstate Transport Requirements for
the 2006 PM2.5 NAAQS,'' (78 FR 4337) (January 22, 2013)
(EPA's final action on the infrastructure SIP for the 2006
PM2.5 NAAQS).
\6\ On December 14, 2007, the State of Tennessee, through the
Tennessee Department of Environment and Conservation, made a SIP
revision to EPA demonstrating that the State meets the requirements
of sections 110(a)(1) and (2). EPA proposed action for
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR
3213) and took final action on March 14, 2012 (77 FR 14976). On
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA
took separate proposed and final actions on all other section
110(a)(2) infrastructure SIP elements of Tennessee's December 14,
2007 submittal.
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Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise
with respect to infrastructure SIP submission requirements for
different NAAQS. Thus, EPA notes that not every element of section
110(a)(2) would be relevant, or as relevant, or relevant in the same
way, for each new or revised NAAQS. The states' attendant
infrastructure SIP submissions for each NAAQS therefore could be
different. For example, the monitoring requirements that a state might
need to meet in its infrastructure SIP submission for purposes of
section 110(a)(2)(B) could be very different for different pollutants,
for example because the content and scope of a state's infrastructure
SIP submission to meet this element might be very different for an
entirely new NAAQS than for a minor revision to an existing NAAQS.\7\
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\7\ For example, implementation of the 1997 PM2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of that new indicator species for the new NAAQS.
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EPA notes that interpretation of section 110(a)(2) is also
necessary when EPA reviews other types of SIP submissions required
under the CAA. Therefore, as with infrastructure SIP submissions, EPA
also has to identify and interpret the relevant elements of section
110(a)(2) that logically apply to these other types of SIP submissions.
For example, section 172(c)(7) requires that attainment plan SIP
submissions required by part D have to meet the ``applicable
requirements'' of section 110(a)(2). Thus, for example, attainment plan
SIP submissions must meet the requirements of section 110(a)(2)(A)
regarding enforceable emission limits and control measures and section
110(a)(2)(E)(i) regarding air agency resources and authority. By
contrast, it is clear that attainment plan SIP submissions required by
part D would not need to meet the portion of section 110(a)(2)(C) that
pertains to the PSD program required in part C of title I of the CAA,
because PSD does not apply to a pollutant for which an area is
designated nonattainment and thus subject to part D planning
requirements. As this example illustrates, each type of SIP submission
may implicate some elements of section 110(a)(2) but not others.
Given the potential for ambiguity in some of the statutory language
of section 110(a)(1) and section 110(a)(2), EPA believes that it is
appropriate to interpret the ambiguous portions of section 110(a)(1)
and section 110(a)(2) in the context of acting on a particular SIP
submission. In other words, EPA assumes that Congress could not have
intended that each and every SIP submission, regardless of the NAAQS in
question or the history of SIP development for the relevant pollutant,
would meet each of the requirements, or meet each of them in the same
way. Therefore, EPA has adopted an approach under which it reviews
infrastructure SIP submissions against the list of elements in section
110(a)(2), but only to the extent each element applies for that
particular NAAQS.
Historically, EPA has elected to use guidance documents to make
recommendations to states for infrastructure SIPs, in some cases
conveying needed interpretations on newly arising issues and in some
cases conveying interpretations that have already been developed and
applied to individual SIP submissions for particular elements.\8\ EPA's
2013 Memo was developed to provide states with up-to-date guidance for
infrastructure SIPs for any new or revised NAAQS. Within this guidance,
EPA describes the duty of states to make infrastructure SIP submissions
to meet basic structural SIP requirements within three years of
promulgation of a new or revised NAAQS. EPA also made recommendations
about many specific subsections of section 110(a)(2) that are relevant
in the context of infrastructure SIP submissions.\9\ The guidance also
discusses the substantively important issues that are germane to
certain subsections of section 110(a)(2). Significantly, EPA interprets
sections 110(a)(1) and 110(a)(2) such that infrastructure SIP
submissions need to address certain issues and need not address others.
Accordingly, EPA reviews each infrastructure SIP submission for
compliance with the
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applicable statutory provisions of section 110(a)(2), as appropriate.
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\8\ EPA notes, however, that nothing in the CAA requires EPA to
provide guidance or to promulgate regulations for infrastructure SIP
submissions. The CAA directly applies to states and requires the
submission of infrastructure SIP submissions, regardless of whether
or not EPA provides guidance or regulations pertaining to such
submissions. EPA elects to issue such guidance in order to assist
states, as appropriate.
\9\ EPA's September 13, 2013, guidance did not make
recommendations with respect to infrastructure SIP submissions to
address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly
after the U.S. Supreme Court agreed to review the D.C. Circuit
decision in EME Homer City, 696 F.3d7 (D.C. Cir. 2012) which had
interpreted the requirements of section 110(a)(2)(D)(i)(I). In light
of the uncertainty created by ongoing litigation, EPA elected not to
provide additional guidance on the requirements of section
110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding
nor required by statute, whether EPA elects to provide guidance on a
particular section has no impact on a state's CAA obligations.
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As an example, section 110(a)(2)(E)(ii) is a required element of
section 110(a)(2) for infrastructure SIP submissions. Under this
element, a state must meet the substantive requirements of section 128,
which pertain to state boards that approve permits or enforcement
orders and heads of executive agencies with similar powers. Thus, EPA
reviews infrastructure SIP submissions to ensure that the state's SIP
appropriately addresses the requirements of section 110(a)(2)(E)(ii)
and section 128. The 2013 Memo explains EPA's interpretation that there
may be a variety of ways by which states can appropriately address
these substantive statutory requirements, depending on the structure of
an individual state's permitting or enforcement program (e.g., whether
permits and enforcement orders are approved by a multi-member board or
by a head of an executive agency). However they are addressed by the
state, the substantive requirements of section 128 are necessarily
included in EPA's evaluation of infrastructure SIP submissions because
section 110(a)(2)(E)(ii) explicitly requires that the state satisfy the
provisions of section 128.
As another example, EPA's review of infrastructure SIP submissions
with respect to the PSD program requirements in sections 110(a)(2)(C),
(D)(i)(II), and (J) focuses upon the structural PSD program
requirements contained in part C and EPA's PSD regulations. Structural
PSD program requirements include provisions necessary for the PSD
program to address all regulated sources and NSR pollutants, including
greenhouse gases (GHGs). By contrast, structural PSD program
requirements do not include provisions that are not required under
EPA's regulations at 40 CFR 51.166 but are merely available as an
option for the state, such as the option to provide grandfathering of
complete permit applications with respect to the 2012 PM2.5
NAAQS. Accordingly, the latter optional provisions are types of
provisions EPA considers irrelevant in the context of an infrastructure
SIP action.
For other section 110(a)(2) elements, however, EPA's review of a
state's infrastructure SIP submission focuses on assuring that the
state's SIP meets basic structural requirements. For example, section
110(a)(2)(C) includes, inter alia, the requirement that states have a
program to regulate minor new sources. Thus, EPA evaluates whether the
state has an EPA-approved minor new source review (NSR) program and
whether the program addresses the pollutants relevant to that NAAQS. In
the context of acting on an infrastructure SIP submission, however, EPA
does not think it is necessary to conduct a review of each and every
provision of a state's existing minor source program (i.e., already in
the existing SIP) for compliance with the requirements of the CAA and
EPA's regulations that pertain to such programs.
With respect to certain other issues, EPA does not believe that an
action on a state's infrastructure SIP submission is necessarily the
appropriate type of action in which to address possible deficiencies in
a state's existing SIP. These issues include: (i) Existing provisions
related to excess emissions from sources during periods of startup,
shutdown, or malfunction that may be contrary to the CAA and EPA's
policies addressing such excess emissions (``SSM''); (ii) existing
provisions related to ``director's variance'' or ``director's
discretion'' that may be contrary to the CAA because they purport to
allow revisions to SIP-approved emissions limits while limiting public
process or not requiring further approval by EPA; and (iii) existing
provisions for PSD programs that may be inconsistent with current
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (``NSR
Reform''). Thus, EPA believes it may approve an infrastructure SIP
submission without scrutinizing the totality of the existing SIP for
such potentially deficient provisions and may approve the submission
even if it is aware of such existing provisions.\10\ It is important to
note that EPA's approval of a state's infrastructure SIP submission
should not be construed as explicit or implicit re-approval of any
existing potentially deficient provisions that relate to the three
specific issues just described.
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\10\ By contrast, EPA notes that if a state were to include a
new provision in an infrastructure SIP submission that contained a
legal deficiency, such as a new exemption for excess emissions
during SSM events, then EPA would need to evaluate that provision
for compliance against the rubric of applicable CAA requirements in
the context of the action on the infrastructure SIP.
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EPA's approach to review of infrastructure SIP submissions is to
identify the CAA requirements that are logically applicable to that
submission. EPA believes that this approach to the review of a
particular infrastructure SIP submission is appropriate, because it
would not be reasonable to read the general requirements of section
110(a)(1) and the list of elements in 110(a)(2) as requiring review of
each and every provision of a state's existing SIP against all
requirements in the CAA and EPA regulations merely for purposes of
assuring that the state in question has the basic structural elements
for a functioning SIP for a new or revised NAAQS. Because SIPs have
grown by accretion over the decades as statutory and regulatory
requirements under the CAA have evolved, they may include some outmoded
provisions and historical artifacts. These provisions, while not fully
up to date, nevertheless may not pose a significant problem for the
purposes of ``implementation, maintenance, and enforcement'' of a new
or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP
submission. EPA believes that a better approach is for states and EPA
to focus attention on those elements of section 110(a)(2) of the CAA
most likely to warrant a specific SIP revision due to the promulgation
of a new or revised NAAQS or other factors.
For example, the 2013 Memo gives simpler recommendations with
respect to carbon monoxide than other NAAQS pollutants to meet the
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon
monoxide does not affect visibility. As a result, an infrastructure SIP
submission for any future new or revised NAAQS for carbon monoxide need
only state this fact in order to address the visibility prong of
section 110(a)(2)(D)(i)(II).
Finally, EPA believes that its approach with respect to
infrastructure SIP requirements is based on a reasonable reading of
sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues
and mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow EPA to take appropriately
tailored action, depending upon the nature and severity of the alleged
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP
call'' whenever the Agency determines that a state's SIP is
substantially inadequate to attain or maintain the NAAQS, to mitigate
interstate transport, or to otherwise comply with the CAA.\11\ Section
110(k)(6) authorizes EPA to correct errors in past actions, such as
past
[[Page 27245]]
approvals of SIP submissions.\12\ Significantly, EPA's determination
that an action on a state's infrastructure SIP submission is not the
appropriate time and place to address all potential existing SIP
deficiencies does not preclude EPA's subsequent reliance on provisions
in section 110(a)(2) as part of the basis for action to correct those
deficiencies at a later time. For example, although it may not be
appropriate to require a state to eliminate all existing inappropriate
director's discretion provisions in the course of acting on an
infrastructure SIP submission, EPA believes that section 110(a)(2)(A)
may be among the statutory bases that EPA relies upon in the course of
addressing such deficiency in a subsequent action.\13\
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\11\ For example, EPA issued a SIP call to Utah to address
specific existing SIP deficiencies related to the treatment of
excess emissions during SSM events. See ``Finding of Substantial
Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011).
\12\ EPA has used this authority to correct errors in past
actions on SIP submissions related to PSD programs. See ``Limitation
of Approval of Prevention of Significant Deterioration Provisions
Concerning Greenhouse Gas Emitting-Sources in State Implementation
Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). EPA has
previously used its authority under CAA section 110(k)(6) to remove
numerous other SIP provisions that the Agency determined it had
approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR
34641 (June 27, 1997) (corrections to American Samoa, Arizona,
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16,
2004) (corrections to California SIP); and 74 FR 57051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
\13\ See, e.g., EPA's disapproval of a SIP submission from
Colorado on the grounds that it would have included a director's
discretion provision inconsistent with CAA requirements, including
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21,
2010) (proposed disapproval of director's discretion provisions); 76
FR 4540 (Jan. 26, 2011) (final disapproval of such provisions).
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III. What guidance is EPA using to evaluate these SIP submissions?
EPA's guidance for these infrastructure SIP submissions is embodied
in the 2007 Memo. Specifically, attachment A of this memorandum
(Required Section 110 SIP Elements) identifies the statutory elements
that states need to submit in order to satisfy the requirements for an
infrastructure SIP submission. The 2009 Memo was issued to provide
additional guidance for certain elements to meet the requirements of
section 110(a)(1) and (2) of the CAA, and the 2011 Memo provides
guidance specific to the 2008 Pb NAAQS. Lastly, the 2013 Memo
identifies and further clarifies aspects of infrastructure SIPs that
are not NAAQS specific.
IV. What is the result of EPA's review of these SIP submissions?
As noted in the 2011 Memo and reiterated in the 2013 Memo, pursuant
to section 110(a), states must provide reasonable notice and
opportunity for public hearing for all infrastructure SIP submissions.
Each state referenced in this rulemaking provided the opportunity for
public comment that ended on the following dates: Illinois--October 24,
2012; Michigan--February 29, 2012; Minnesota--May 25, 2012; and,
Wisconsin--June 18, 2012. Each state also provided an opportunity for a
public hearing. None of the states referenced in this rulemaking
received any written comments, nor were public hearings requested by
interested parties. EPA is also soliciting comment on our evaluation of
each state's infrastructure SIP submission in this notice of proposed
rulemaking. Illinois, Michigan, Minnesota, and Wisconsin provided
detailed synopses of how various components of their SIPs meet each of
the requirements in section 110(a)(2) for the 2008 Pb NAAQS, as
applicable. The following review evaluates the states' submissions.
A. Section 110(a)(2)(A)--Emission Limits and Other Control Measures
This section requires SIPs to include enforceable emission limits
and other control measures, means or techniques, schedules for
compliance, and other related matters. However, EPA has long
interpreted emission limits and control measures for attaining the
standards as being due when nonattainment planning requirements are
due.\14\ In the context of an infrastructure SIP, EPA is not evaluating
the existing SIP provisions for this purpose. Instead, EPA is only
evaluating whether the state's SIP has basic structural provisions for
the implementation of the NAAQS.
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\14\ See, e.g., EPA's 73 FR 66964 at 67034, final rule on
``National Ambient Air Quality Standards for Lead.''
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The Illinois Environmental Protection Act is contained in chapter
415, section 5, of the Illinois Compiled Statutes (415 ILCS 5). 415
ILCS 5/4 provides Illinois EPA with the authority to develop rules and
regulations necessary to meet ambient air quality standards.
Additionally, the Illinois Pollution Control Board (IPCB) was created
under 415 ILCS 5, providing the IPCB with the authority to develop
rules and regulations necessary to promote the purposes of the Illinois
Environmental Protection Act. Furthermore, the IPCB ensures compliance
with required laws and other elements of the State's attainment plan
that are necessary to attain the NAAQS, and to comply with the
requirements of the CAA. (415 ILCS 5/10) EPA proposes that Illinois has
met the infrastructure SIP requirements of section 110(a)(2)(A) with
respect to the 2008 Pb NAAQS.
The Michigan Natural Resources and Environmental Protection Act,
1994 PA 451, as amended (Act 451), sections 324.5503 and 324.5512,
provide the Director of MDEQ with the authority to regulate the
discharge of air pollutants, and to promulgate rules to establish
standards for emissions for ambient air quality and for emissions. EPA
proposes that Michigan has met the infrastructure SIP requirements of
section 110(a)(2)(A) with respect to the 2008 Pb NAAQS.
Minnesota Statute chapter 116.07 gives MPCA the authority to
``[a]dopt, amend, and rescind rules and standards having the force of
law relating to any purpose . . . for the prevention, abatement, or
control of air pollution.'' EPA proposes that Minnesota has met the
infrastructure SIP requirements of section 110(a)(2)(A) with respect to
the 2008 Pb NAAQS.
Wisconsin Statutes (WS) chapter 285.11 through WS chapter 285.19
establish general authority for monitoring, updating, and implementing
necessary revisions to the Wisconsin SIP. Additional authorities for
WDNR related to specific pollutants are contained in WS chapter 285.21
through WS chapter 285.29. EPA proposes that Wisconsin has met the
infrastructure SIP requirements of section 110(a)(2)(A) with respect to
the 2008 Pb NAAQS.
As previously noted, EPA is not proposing to approve or disapprove
any existing state provisions or rules related to SSM or director's
discretion in the context of section 110(a)(2)(A).
B. Section 110(a)(2)(B)--Ambient Air Quality Monitoring/Data System
This section requires SIPs to include provisions to provide for
establishing and operating ambient air quality monitors, collecting and
analyzing ambient air quality data, and making these data available to
EPA upon request. This review of the annual monitoring plan includes
EPA's determination that the state: (i) Monitors air quality at
appropriate locations throughout the state using EPA-approved Federal
Reference Methods or Federal Equivalent Method monitors; (ii) submits
data to EPA's Air Quality System (AQS) in a timely manner; and, (iii)
provides EPA Regional Offices with prior notification of any planned
changes to monitoring sites or the network plan.
Illinois EPA continues to operate an extensive monitoring network
incorporating more than 200 monitors throughout the state. Illinois EPA
also publishes an annual report that
[[Page 27246]]
summarizes air quality trends. Furthermore, Illinois EPA submits yearly
monitoring network plans to EPA, and EPA approved the 2014 Annual Air
Monitoring Network Plan for Pb on August 21, 2013. In this monitoring
network approval, EPA noted that the operation of two ambient air
monitoring sites for Pb, ArcelorMittal Steel and Johnson Controls,
needed to commence as expeditiously as possible. On November 8, 2013,
Illinois EPA confirmed that that these two sites had begun operating on
October 7, 2013, and October 31, 2013, respectively. Monitoring data
from Illinois EPA are entered into AQS in a timely manner, and the
state provides EPA with prior notification when changes to its
monitoring network or plan are being considered. EPA proposes that
Illinois has met the infrastructure SIP requirements of section
110(a)(2)(B) with respect to the 2008 Pb NAAQS.
MDEQ maintains a comprehensive network of air quality monitors
throughout Michigan. EPA approved MDEQ's 2014 Annual Air Monitoring
Network Plan for Pb on October 23, 2013. MDEQ enters air monitoring
data into AQS, and the State provides EPA with prior notification when
changes to its monitoring network or plan are being considered. EPA
proposes that Michigan has met the infrastructure SIP requirements of
section 110(a)(2)(B) with respect to the 2008 Pb NAAQS.
MPCA continues to operate an ambient pollutant monitoring network,
and compiles and reports air quality data to EPA. EPA approved MPCA's
2014 Annual Air Monitoring Network Plan for Pb on October 23, 2013.
MPCA also provides prior notification to EPA when changes to its
monitoring network or plan are being considered. EPA proposes that
Minnesota has met the infrastructure SIP requirements of section
110(a)(2)(B) with respect to the 2008 Pb NAAQS.
WDNR continues to operate an extensive monitoring network; EPA
approved the state's 2014 Annual Air Monitoring Network Plan for Pb on
August 19, 2013. WDNR enters air quality data into AQS in a timely
manner, and gives EPA prior notification when considering a change to
its monitoring network or plan. EPA proposes that Wisconsin has met the
infrastructure SIP requirements of section 110(a)(2)(B) with respect to
the 2008 Pb NAAQS.
C. Section 110(a)(2)(C)--Program for Enforcement of Control Measures;
PSD
States are required to include a program providing for enforcement
of all SIP measures and the regulation of construction of new or
modified stationary sources to meet NSR requirements under PSD and NNSR
programs. Part C of the CAA (sections 160-169B) addresses PSD, while
part D of the CAA (sections 171-193) addresses NNSR requirements.
The evaluation of each state's submission addressing the
infrastructure SIP requirements of section 110(a)(2)(C) covers: (i)
Enforcement of SIP measures; (ii) PSD program for the 2008 Pb NAAQS;
(iii) PSD provisions that explicitly identify oxides of nitrogen
(NOX) as a precursor to ozone in the PSD program; (iv)
identification of precursors to PM2.5 and the identification
of PM2.5 and PM10 \15\ condensables in the PSD
program; (v) PM2.5 increments in the PSD program; and, (vi)
GHG permitting and the ``Tailoring Rule.'' \16\ In today's rulemaking,
we are evaluating each state's submission as it relates to the
enforcement of SIP measures. We are also evaluating the submissions
from Illinois, Michigan, and Minnesota with respect to the various PSD
program and GHG permitting requirements. We are not taking action on
Wisconsin's satisfaction of these requirements, which include a PSD
program for the 2008 Pb NAAQS, PSD provisions that explicitly identify
NOX as a precursor to ozone in the PSD program, the
identification of precursors to PM2.5 and the identification
of PM2.5 and PM10 condensables in the PSD
program, PM2.5 increments in the PSD program, and GHG
permitting and the ``Tailoring Rule.'' Instead, EPA will evaluate
Wisconsin's compliance with each of these requirements in a separate
rulemaking.
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\15\ PM10 refers to particles with diameters between
2.5 and 10 microns, oftentimes referred to as ``coarse'' particles.
\16\ In EPA's April 28, 2011, proposed rulemaking for
infrastructure SIPs for the 1997 ozone and PM2.5 NAAQS,
we stated that each state's PSD program must meet applicable
requirements for evaluation of all regulated NSR pollutants in PSD
permits (see 76 FR 23757 at 23760). This view was reiterated in
EPA's August 2, 2012, proposed rulemaking for infrastructure SIPs
for the 2006 PM2.5 NAAQS (see 77 FR 45992 at 45998). In
other words, if a state lacks provisions needed to adequately
address Pb, NOX as a precursor to ozone, PM2.5
precursors, PM2.5 and PM10 condensables,
PM2.5 increments, or the Federal GHG permitting
thresholds, the provisions of section 110(a)(2)(C) requiring a
suitable PSD permitting program must be considered not to be met
irrespective of the NAAQS that triggered the requirement to submit
an infrastructure SIP, including 2008 Pb NAAQS.
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Sub-Element 1: Enforcement of SIP Measures
Illinois continues to staff and implement an enforcement program
comprised, and operated by, the Compliance Section and Division of
Legal Counsel. 415 ILCS 5/4 provides the Director of Illinois EPA with
the authority to implement and administer this enforcement program.
Furthermore, Illinois EPA has confirmed that all enforcement actions
are brought by the Office of the Illinois Attorney General or local
State's Attorney offices, with whom Illinois EPA consults. EPA proposes
that Illinois has met the enforcement of SIP measures requirements of
section 110(a)(2)(C) with respect to the 2008 Pb NAAQS.
MDEQ continues to staff and implement an enforcement program to
assure compliance with all requirements under State law, consistent
with the provisions of Act 451. Additionally, this air quality
enforcement unit provides support and technical assistance to
Michigan's Attorney General on all air pollution enforcement issues
referred by MDEQ's Air Quality Division for escalated enforcement
action. Lastly, the air quality enforcement unit at MDEQ coordinates
formal administrative actions such as contested case hearings,
administrative complaints, and revocation of permits to install.
Therefore, EPA proposes that Michigan has met the enforcement of SIP
measures requirements of section 110(a)(2)(C) with respect to the 2008
Pb NAAQS.
Minnesota Statute chapter 116.07 gives the MPCA the authority to
enforce any provisions of the chapter relating to air contamination.
These provisions include: Entering into orders; schedules of
compliance; stipulation agreements; requiring owners or operators of
emissions facilities to install and operate monitoring equipment; and
conducting investigations. Minnesota Statute chapter 116.072 authorizes
MPCA to issue orders and assess administrative penalties to correct
violations of the agency's rules, statutes, and permits, and Minnesota
Statute chapter 115.071 outlines the remedies that are available to
address such violations. Lastly, Minnesota Administrative Rules
7009.0030 to 7009.0040 provide for enforcement measures. EPA proposes
that Minnesota has met the enforcement of SIP measures requirements of
section 110(a)(2)(C) with respect to the 2008 Pb NAAQS.
WDNR maintains an enforcement program to ensure compliance with SIP
requirements. The Bureau of Air Management houses an active statewide
compliance and enforcement team that works in all geographic regions of
the State. WDNR refers actions as necessary to the Wisconsin Department
of Justice with the involvement of WDNR. Under
[[Page 27247]]
WS chapter 285.13, WDNR has the authority to impose fees and penalties
to ensure that required measures are ultimately implemented. WS chapter
285.83 and WS chapter 285.87 provide WDNR with the authority to enforce
violations and assess penalties. EPA proposes that Wisconsin has met
the enforcement of SIP measures requirements of section 110(a)(2)(C)
with respect to the 2008 Pb NAAQS.
Sub-Element 2: PSD Program for the 2008 Pb NAAQS
Pursuant to the 2011 Memo, a state should demonstrate that it is
authorized to implement its PSD permit program to ensure that the
construction of major stationary sources does not cause or contribute
to a violation of the 2008 Pb NAAQS.
Illinois and Minnesota have not adopted or submitted regulations
for PSD, although Federally promulgated rules for this purpose are in
effect in these two states, promulgated at 40 CFR 52.21. EPA has
currently delegated the authority to implement these regulations to
Illinois and Minnesota. These Federally promulgated rules include
provisions that ensure that the construction of major stationary
sources does not cause or contribute to a violation of the 2008 Pb
NAAQS. EPA acknowledges that these two states have not satisfied the
requirement for a SIP submission, which results in a proposed
disapproval with respect to this set of infrastructure SIP requirements
of section 110(a)(2)(C). However, Illinois and Minnesota have no
further obligations to EPA because both states administer the Federally
promulgated PSD regulations.
Michigan's EPA-approved PSD rules, contained at R 336.2801-R
336.2823, contain provisions that adequately address the applicable
infrastructure SIP requirements related to the 2008 Pb NAAQS. EPA
proposes that Michigan has met this set of infrastructure SIP
requirements of section 110(a)(2)(C) with respect to the 2008 Pb NAAQS.
Sub-Element 3: PSD Provisions That Explicitly Identify NOX
as a Precursor to Ozone in the PSD Program
EPA's ``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) was published on November 29, 2005 (see 70 FR 71612). Among
other requirements, the Phase 2 Rule obligated states to revise their
PSD programs to explicitly identify NOX as a precursor to
ozone (70 FR 71612 at 71679, 71699-71700). This requirement was
codified in 40 CFR 51.166, and consisted of the following: \17\
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\17\ Similar changes were codified in 40 CFR 52.21.
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40 CFR 51.166(b)(1)(ii): A major source that is major for
volatile organic compounds (VOCs) or NOX shall be
considered major for ozone;
40 CFR 51.166(b)(2)(ii): Any significant emissions increase (as
defined at paragraph (b)(39) of this section) from any emissions
units or net emissions increase (as defined in paragraph (b)(3) of
this section) at a major stationary source that is significant for
VOCs or NOX shall be considered significant for ozone;
40 CFR 51.166(b)(23)(i): Ozone: 40 tons per year (tpy) of VOCs
or NOX;
40 CFR 51.166(b)(49)(i): \18\ Any pollutant for which a NAAQS
has been promulgated and any constituents or precursors for such
pollutants identified by the Administrator (e.g., VOCs and
NOX) are precursors for ozone; and
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\18\ Note that this section of 40 CFR 51.166 has been amended as
a result of EPA's Final Rule on the ``Implementation of the New
Source Review (NSR) Program for Particulate Matter Less than 2.5
Micrometers (PM2.5); the regulatory text as listed was
current as of the issuance of the Phase 2 Rule. The current citation
for the VOCs and NOX as precursors for ozone are
contained in 40 CFR 51.166 (b)(49)(i)(b)(i).
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40 CFR 51.166(i)(5)(i)(e) footnote 1: No de minimis air quality
level is provided for ozone. However, any net emissions increase of
100 tpy or more of VOCs or NOX subject to PSD would be
required to perform an ambient impact analysis, including the
gathering of air quality data.
The Phase 2 Rule required that states 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).
Illinois and Minnesota have not adopted or submitted regulations
for PSD, although Federally promulgated rules for this purpose are in
effect in these two states, promulgated at 40 CFR 52.21. EPA has
currently delegated the authority to implement these regulations to
Illinois and Minnesota. These Federally promulgated rules include
provisions that explicitly identify NOX as a precursor to
ozone. EPA acknowledges that these two states have not satisfied the
requirement for a SIP submission, which results in a proposed
disapproval with respect to this set of infrastructure SIP requirements
of section 110(a)(2)(C). However, Illinois and Minnesota have no
further obligations to EPA because both states administer the Federally
promulgated PSD regulations.
On August 9, 2013, and supplemented on September 19, 2013, Michigan
submitted revisions to its PSD program incorporating the necessary
changes regarding NOX as a precursor to ozone, consistent
with the requirements of the Phase 2 Rule. MDEQ also requested that
these revisions satisfy not only the requirements of the Phase 2 Rule,
but any applicable PSD requirements associated with the 2008 Pb NAAQS
infrastructure SIP. EPA's final approval of MDEQ's SIP revisions with
respect to the Phase 2 Rule was published on April 4, 2014 (see 79 FR
18802). Therefore, we are proposing to find that Michigan has met this
set of requirements of section 110(a)(2)(C) for the 2008 Pb NAAQS
regarding the explicit identification of NOX as a precursor
to ozone, consistent with the Phase 2 Rule.
Sub-Element 4: Identification of Precursors to PM2.5 and the
Identification of PM2.5 and PM10 Condensables in
the PSD Program
On May 16, 2008 (see 73 FR 28321), EPA issued the Final Rule on the
``Implementation of the New Source Review (NSR) Program for Particulate
Matter Less than 2.5 Micrometers (PM2.5)'' (2008 NSR Rule).
The 2008 NSR Rule finalized several new requirements for SIPs to
address sources that emit direct PM2.5 and other pollutants
that contribute to secondary PM2.5 formation. One of these
requirements is for NSR permits to address pollutants responsible for
the secondary formation of PM2.5, otherwise known as
precursors. In the 2008 rule, EPA identified precursors to
PM2.5 for the PSD program to be sulfur dioxide
(SO2) and NOX (unless the state demonstrates to
the Administrator's satisfaction or EPA demonstrates that
NOX emissions in an area are not a significant contributor
to that area's ambient PM2.5 concentrations). The 2008 NSR
Rule also specifies that VOCs are not considered to be precursors to
PM2.5 in the PSD program unless the state demonstrates to
the Administrator's satisfaction or EPA demonstrates that emissions of
VOCs in an area are significant contributors to that area's ambient
PM2.5 concentrations.
The explicit references to SO2, NOX, and VOCs
as they pertain to secondary PM2.5 formation are codified at
40 CFR 51.166(b)(49)(i)(b) and 40 CFR 52.21(b)(50)(i)(b). As part of
identifying pollutants that are precursors to PM2.5, the
2008 NSR Rule also required states to revise the definition of
``significant'' as it relates to a net emissions increase or the
potential of a source to emit
[[Page 27248]]
pollutants. Specifically, 40 CFR 51.166(b)(23)(i) and 40 CFR
52.21(b)(23)(i) define ``significant'' for PM2.5 to mean the
following emissions rates: 10 tpy of direct PM2.5; 40 tpy of
SO2; and 40 tpy of NOX (unless the state
demonstrates to the Administrator's satisfaction or EPA demonstrates
that NOX emissions in an area are not a significant
contributor to that area's ambient PM2.5 concentrations).
The deadline for states to submit SIP revisions to their PSD programs
incorporating these changes was May 16, 2011 (see 73 FR 28321 at
28341).\19\
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\19\ EPA notes that on January 4, 2013, the U.S. Court of
Appeals for the DC Circuit, in Natural Resources Defense Council v.
EPA, 706 F.3d 428 (D.C. Cir.), held that EPA should have issued the
2008 NSR Rule in accordance with the CAA's requirements for
PM10 nonattainment areas (Title I, Part D, subpart 4),
and not the general requirements for nonattainment areas under
subpart 1 (Natural Resources Defense Council v. EPA, No. 08-1250).
As the subpart 4 provisions apply only to nonattainment areas, the
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, EPA does not
anticipate the need to revise any PSD requirements promulgated by
the 2008 NSR rule in order to comply with the court's decision.
Accordingly, the EPA's approval of Indiana's infrastructure SIP as
to elements (C), (D)(i)(II), or (J) with respect to the PSD
requirements promulgated by the 2008 implementation rule does not
conflict with the court's opinion. The Court's decision with respect
to the nonattainment NSR requirements promulgated by the 2008
implementation rule also does not affect EPA's action on the present
infrastructure action. EPA interprets the CAA to exclude
nonattainment area requirements, including requirements associated
with a nonattainment NSR program, from infrastructure SIP
submissions due three years after adoption or revision of a NAAQS.
Instead, these elements are typically referred to as nonattainment
SIP or attainment plan elements, which would be due by the dates
statutorily prescribed under subpart 2 through 5 under part D,
extending as far as 10 years following designations for some
elements.
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The 2008 NSR Rule did not require states to immediately account for
gases that could condense to form particulate matter, known as
condensables, in PM2.5 and PM10 emission limits
in NSR permits. Instead, EPA determined that states had to account for
PM2.5 and PM10 condensables for applicability
determinations and in establishing emissions limitations for
PM2.5 and PM10 in PSD permits beginning on or
after January 1, 2011. This requirement is codified in 40 CFR
51.166(b)(49)(i)(a) and 40 CFR 52.21(b)(50)(i)(a). Revisions to states'
PSD programs incorporating the inclusion of condensables were required
be submitted to EPA by May 16, 2011 (see 73 FR 28321 at 28341).
Illinois and Minnesota have not adopted or submitted regulations
for PSD, although Federally promulgated rules for this purpose are in
effect in these two states, promulgated at 40 CFR 52.21. EPA has
currently delegated the authority to implement these regulations to
Illinois and Minnesota. These Federally promulgated rules include
provisions that address the requirements obligated by the 2008 NSR
Rule, including those that explicitly identify precursors to
PM2.5, and account for PM2.5 and PM10
condensables for applicability determinations and in establishing
emissions limitations for PM2.5 and PM10 in PSD
permits. EPA acknowledges that these two states have not satisfied the
requirement for a SIP submission, which results in a proposed
disapproval with respect to this set of infrastructure SIP requirements
of section 110(a)(2)(C). However, Illinois and Minnesota have no
further obligations to EPA because both states administer the Federally
promulgated PSD regulations.
On August 9, 2013, and supplemented on September 19, 2013, Michigan
submitted revisions to its PSD program incorporating the necessary
changes obligated by the 2008 NSR Rule, including provisions that
explicitly identify precursors to PM2.5 and account for
PM2.5 and PM10 condensables for applicability
determinations and in establishing emissions limitations for
PM2.5 and PM10 in PSD permits. MDEQ also
requested that these revisions satisfy not only the requirements of the
2008 NSR Rule, but any applicable PSD requirements associated with the
2008 Pb NAAQS infrastructure SIP. EPA's final approval of MDEQ's SIP
revisions with respect to the 2008 NSR Rule was published on April 4,
2014 (see 79 FR 18802). Therefore, we are proposing that Michigan has
met this set of requirements of section 110(a)(2)(C) for the 2008
Pb NAAQS regarding the requirements obligated by the 2008
NSR Rule.
Sub-Element 5: PM2.5 Increments in the PSD Program
On October 20, 2010, EPA issued the final rule on the ``Prevention
of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5
Micrometers (PM2.5)--Increments, Significant Impact Levels
(SILs) and Significant Monitoring Concentration (SMC)'' (2010 NSR
Rule). This rule established several components for making PSD
permitting determinations for PM2.5, including a system of
``increments'' which is the mechanism used to estimate significant
deterioration of ambient air quality for a pollutant. These increments
are codified in 40 CFR 51.166(c) and 40 CFR 52.21(c), and are included
in the table below.
Table 1--PM2.5 Increments Established by the 2010 NSR Rule in Micrograms
per Cubic Meter
------------------------------------------------------------------------
Annual
arithmetic 24-hour max
mean
------------------------------------------------------------------------
Class I................................. 1 2
Class II................................ 4 9
Class III............................... 8 18
------------------------------------------------------------------------
The 2010 NSR Rule also established a new ``major source baseline
date'' for PM2.5 as October 20, 2010, and a new trigger date
for PM2.5 as October 20, 2011. These revisions are codified
in 40 CFR 51.166(b)(14)(i)(c) and (b)(14)(ii)(c), and 40 CFR
52.21(b)(14)(i)(c) and (b)(14)(ii)(c). Lastly, the 2010 NSR Rule
revised the definition of ``baseline area'' to include a level of
significance of 0.3 micrograms per cubic meter, annual average, for
PM2.5. This change is codified in 40 CFR 51.166(b)(15)(i)
and 40 CFR 52.21(b)(15)(i).
Illinois and Minnesota have not adopted or submitted regulations
for PSD, although Federally promulgated rules for this purpose are in
effect in these two states, promulgated at 40 CFR 52.21. EPA has
currently delegated the authority to implement these regulations to
Illinois and Minnesota. These Federally promulgated rules include
provisions that address the requirements obligated by the 2010 NSR
Rule, including the increments established by the 2010 NSR Rule for
incorporation into the SIP, as well as the revised major source
baseline date, trigger date, and baseline area level of significance
for PM2.5. EPA acknowledges that these two states have not
satisfied the requirement for a SIP submission, which results in a
proposed disapproval with respect to this set of infrastructure SIP
requirements of section 110(a)(2)(C). However, Illinois and Minnesota
have no further obligations to EPA because both states administer the
Federally promulgated PSD regulations.
On August 9, 2013, and supplemented on September 19, 2013, Michigan
submitted revisions to its PSD program incorporating the necessary
changes obligated by the 2010 NSR Rule, including the increments
established by the 2010 NSR Rule for incorporation into the SIP, as
well as the revised major source baseline date, trigger date, and
baseline area level of significance for PM2.5. MDEQ also
requested that these revisions satisfy not only the requirements of the
2010 NSR Rule, but any applicable PSD requirements associated with the
2008 Pb NAAQS infrastructure SIP. EPA's final approval
[[Page 27249]]
of MDEQ's SIP revisions with respect to the 2010 NSR Rule was published
on April 4, 2014 (see 79 FR 18802). Therefore, we are proposing that
Michigan has met this set of requirements of section 110(a)(2)(C) for
the 2008 Pb NAAQS regarding the requirements obligated by the 2010 NSR
Rule.
Sub-Element 5: GHG Permitting and the ``Tailoring Rule''
On June 3, 2010, EPA issued a final rule establishing a ``common
sense'' approach to addressing GHG emissions from stationary sources
under the CAA permitting programs. The ``Prevention of Significant
Deterioration and Title V Greenhouse Gas Tailoring Rule,'' or
``Tailoring Rule,'' set thresholds for GHG emissions that define when
permits under the NSR PSD and title V operating permit programs are
required for new and existing industrial facilities (see 75 FR 31514).
The Tailoring Rule set the GHG PSD applicability threshold at 75,000
tpy as expressed in carbon dioxide equivalent; if states have not
adopted this threshold, sources with GHG emissions above 100 tpy or 250
tpy (depending on source category) would be subject to PSD, effective
January 2, 2011. The lower thresholds could potentially result in
certain residential and commercial sources triggering GHG PSD
requirements.
On December 23, 2010, EPA issued a subsequent series of rules that
put the necessary framework in place to ensure that industrial
facilities can get CAA permits covering their GHG emissions when
needed, and that facilities emitting GHGs at levels below those
established in the Tailoring Rule do not need to obtain CAA
permits.\20\ Included in this series of rules was EPA's issuance of the
``Limitation of Approval of Prevention of Significant Deterioration
Provisions Concerning Greenhouse Gas Emitting-Sources in State
Implementation Plans,'' referred to as the PSD SIP ``Narrowing Rule''
on December 30, 2010 (see 75 FR 82536). The Narrowing Rule limits, or
``narrows,'' EPA's approval of PSD programs that were previously
approved into SIPs; the programs in question are those that apply PSD
to sources that emit GHG. Specifically, the effect of the Narrowing
Rule is that provisions that are no longer approved--e.g., portions of
already approved SIPs that apply PSD to GHG emissions increases from
sources emitting GHG below the Tailoring Rule thresholds--now have the
status of having been submitted by the state but not yet acted upon by
EPA. In other words, the Narrowing Rule focuses on eliminating the PSD
obligations under Federal law for sources below the Tailoring Rule
thresholds.
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\20\ http://www.epa.gov/NSR/actions.html#2010.
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Illinois and Minnesota have not adopted or submitted regulations
for PSD, although Federally promulgated rules for this purpose are in
effect in these two states, promulgated at 40 CFR 52.21. EPA has
currently delegated the authority to implement these regulations to
Illinois and Minnesota. These Federally promulgated rules contain the
GHG thresholds as outlined in the Tailoring Rule. EPA acknowledges that
the states have not satisfied the requirement for a SIP submission,
which results in a proposed disapproval with respect to this set of
infrastructure SIP requirements of section 110(a)(2)(C). However,
Illinois and Minnesota have no further obligations to EPA because both
states administer the Federally promulgated PSD regulations. Note,
however, that EPA does propose that Illinois and Minnesota have met the
requirement contained in section 110(a)(2)(E) regarding resources
specific to permitting GHG.\21\
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\21\ Section 110(a)(2)(E) requires that states have the
resources to administer an air quality management program. Some
states that are not covered by the Narrowing Rule may not be able to
adequately demonstrate that they have adequate personnel to issue
GHG permits to all sources that emit GHG under the Tailoring Rule
thresholds.
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On July 27, 2010, Michigan informed EPA that the State has both the
legal and regulatory authority, as well as the resources, to permit GHG
under its SIP-approved PSD permitting program, consistent with the
thresholds laid out in the Tailoring Rule.\22\ Therefore, EPA proposes
that Michigan's GHG PSD permitting program has met this set of
requirements of sections 110(a)(2)(C) and (E) for the 2008 Pb NAAQS.
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\22\ Letter from the Director of MDEQ to EPA Region 5 Regional
Administrator dated July 27, 2010.
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For the purposes of the 2008 Pb NAAQS infrastructure SIPs, EPA
reiterates that NSR reform regulations are not in the scope of these
actions. Therefore, we are not taking action on existing NSR reform
regulations for Illinois, Michigan, Minnesota, and Wisconsin.
To address the pre-construction regulation of the modification and
construction of minor stationary sources and minor modifications of
major stationary sources, an infrastructure SIP submission should
identify the existing EPA-approved SIP provisions and/or include new
provisions that govern the minor source pre-construction program that
regulates emissions of the relevant NAAQS pollutants. EPA approvals for
each state's minor NSR program occurred on: Illinois--May 31, 1972 (37
FR 10862); Michigan--May 6, 1980 (45 FR 29790); Minnesota--May 24, 1995
(60 FR 27411); and, Wisconsin--February 17, 1995 (60 FR 3543). Since
these dates, each state agency and EPA have relied on the existing
minor NSR program to ensure that new and modified sources not captured
by the major NSR permitting programs do not interfere with attainment
and maintenance of the 2008 Pb NAAQS.
Furthermore, various sub-elements in this section overlap with
elements of section 110(a)(2)(D)(i), section 110(a)(2)(E) and section
110(a)(2)(J). These links will be discussed in the appropriate areas
below.
D. Section 110(a)(2)(D)--Interstate Transport
Section 110(a)(2)(D)(i)(I) requires SIPs to include provisions
prohibiting any source or other type of emissions activity in one state
from contributing significantly to nonattainment, or interfering with
maintenance, of the NAAQS in another state.
With respect to the 2008 Pb NAAQS, the 2011 Memo notes that the
physical properties of Pb prevent it from experiencing the same travel
or formation phenomena as PM2.5 or ozone. Specifically,
there is a sharp decrease in Pb concentrations as the distance from a
Pb source increases. Accordingly, it may be possible for a source in a
state to emit Pb at a location and in such quantities that contribute
significantly to nonattainment in, or interference with maintenance by,
any other state. However, EPA anticipates that this would be a rare
situation, e.g., sources emitting large quantities of Pb are in close
proximity to state boundaries. The 2011 Memo suggests that the
applicable interstate transport requirements of section
110(a)(2)(D)(i)(I) can be met through a state's assessment as to
whether or not emissions from Pb sources located in close proximity to
its borders have emissions that impact a neighboring state such that
they contribute significantly to nonattainment or interfere with
maintenance in that state. One way that a state's conclusion could be
supported is by the technical support documents used for initial area
designations for Pb.
In its infrastructure SIP submission, Illinois noted that a small
portion of Madison County and Cook County were designated as
nonattainment for the 2008 Pb NAAQS (see 75 FR 71033 and 76 FR 72097).
EPA's final technical support documents for these two
[[Page 27250]]
nonattainment areas support the notion that the ambient concentration
of Pb are not expected to exceed the NAAQS outside of the nonattainment
boundaries. Furthermore, EPA does not believe that the elevated levels
of ambient Pb concentrations in Madison County or Cook County (or
emissions from any other county) would cause or contribute to a
violation of the 2008 Pb NAAQS in a neighboring state, or create a
situation in a neighboring state where maintenance of the 2008 Pb NAAQS
was not possible. Therefore, EPA proposes that Illinois has met this
set of requirements related to section 110(a)(2)(D)(i)(I) for the 2008
Pb NAAQS.
Michigan noted that EPA designated a small portion of Ionia County
as nonattainment for the 2008 Pb NAAQS (see 76 FR 72097). EPA's final
technical support documents for this nonattainment area support the
notion that the ambient concentration of Pb are not expected to exceed
the NAAQS outside of the nonattainment boundaries. MDEQ's submission
also confirms that impact screening performed by the state indicates
that no adverse impacts to air quality are expected to neighboring
states, Canada, or Class I areas from existing Pb-emitting sources in
Michigan. Furthermore, EPA does not believe that the elevated levels of
ambient Pb concentrations in Ionia County (or Pb emissions from any
other county) would cause or contribute to a violation of the 2008 Pb
NAAQS in a neighboring state, the closest of which is Indiana
(approximately 100 miles away from the nonattainment area in Ionia
County). Similarly, EPA does not believe that Pb concentrations in this
area would create a situation in a neighboring state where maintenance
of the 2008 Pb NAAQS was not possible. Therefore, EPA proposes that
Michigan has met this set of requirements related to section
110(a)(2)(D)(i)(I) for the 2008 Pb NAAQS.
EPA designated a portion of Dakota County in Minnesota as
nonattainment for the 2008 Pb NAAQS (see 75 FR 71033). Minnesota's
submission notes, and EPA has confirmed, that but for the ambient air
monitor located in Dakota County, all other monitors in the state have
recorded very low values of Pb. EPA's final technical support documents
for the nonattainment area in Dakota County support the notion that the
ambient concentration of Pb are not expected to exceed the NAAQS
outside of the nonattainment boundaries; the distance from Dakota
County to the Minnesota-Wisconsin state line is approximately 20 miles.
MPCA also notes that the sources of Pb emissions in Minnesota with
yearly emissions greater than 0.5 tpy are not located close to any
borders with neighboring states. Furthermore, EPA does not believe that
the elevated levels of ambient Pb concentrations in Dakota (or
emissions from any other county) would cause or contribute to a
violation of the 2008 Pb NAAQS in a neighboring state or create a
situation in a neighboring state where maintenance of the 2008 Pb NAAQS
was not possible. Therefore, EPA proposes that Minnesota has met this
set of requirements related to section 110(a)(2)(D)(i)(I) for the 2008
Pb NAAQS.
EPA has designated the entirety of Wisconsin as unclassifiable/
attainment for the 2008 Pb NAAQS (see 76 FR 72097). In its submission,
WDNR notes that there is only one site in the state which requires
continued ambient air monitoring for Pb emissions, and this area is
approximately 70 miles from the Wisconsin-Illinois state line.
Wisconsin also notes that other sources emitting at or above 0.5 tpy or
more of Pb were found to contribute less than 50% of the NAAQS to the
surrounding area's ambient air quality. EPA does not believe that
emissions in any county of Wisconsin would cause or contribute to a
violation of the 2008 Pb NAAQS in a neighboring state or create a
situation in a neighboring state where maintenance of the 2008 Pb NAAQS
was not possible. Therefore, EPA proposes that Wisconsin has met this
set of requirements related to section 110(a)(2)(D)(i)(I) for the 2008
Pb NAAQS.
Section 110(a)(2)(D)(i)(II) requires SIPs to include provisions
prohibiting any source or other type of emissions activity in one state
from interfering with measures required to prevent significant
deterioration of air quality or to protect visibility in another state.
EPA notes that each state's satisfaction of the applicable
infrastructure SIP PSD requirements for the 2008 Pb NAAQS has been
detailed in the section addressing section 110(a)(2)(C). EPA notes that
the proposed actions in that section related to PSD are consistent with
the proposed actions related to PSD for section 110(a)(2)(D)(i)(II),
and they are reiterated below.
Illinois and Minnesota have not adopted or submitted regulations
for PSD, although Federally promulgated rules for this purpose are in
effect in these two states, promulgated at 40 CFR 52.21. EPA has
currently delegated the authority to implement these regulations to
Illinois and Minnesota. These Federally promulgated rules contain the
applicable provisions contained in the Phase 2 Rule, the 2008 NSR Rule,
the 2010 NSR Rule, and the GHG thresholds as outlined in the Tailoring
Rule. EPA acknowledges that the states have not satisfied the
requirement for a SIP submission, which results in a proposed
disapproval with respect to these requirements. However, Illinois and
Minnesota have no further obligations to EPA because both states
administer the Federally promulgated PSD regulations.
Michigan has submitted revisions to its PSD regulations that are
wholly consistent with the EPA's requirements contained in the Phase 2
Rule, the 2008 NSR Rule, and the 2010 Rule. These revisions were
approved on April 4, 2014 (see 79 FR 18802), and in this rulemaking, we
are proposing that Michigan has met the applicable infrastructure SIP
requirements for the 2008 Pb NAAQS as they relate to the requirements
obligated by EPA's PSD regulations. We are also proposing that Michigan
has met the applicable PSD requirements associated with the permitting
of GHG emitting sources consistent with the thresholds laid out in the
Tailoring Rule.
States also have an obligation to ensure that sources located in
nonattainment areas do not interfere with a neighboring state's PSD
program. One way that this requirement can be satisfied is through an
NNSR program consistent with the CAA that addresses any pollutants for
which there is a designated nonattainment area within the state.
Illinois' EPA-approved NNSR regulations can be found in Part 203 of
the SIP; Michigan's EPA-approved NNSR regulations can be found in Part
2 of the SIP, specifically in R 336.1220 and R 336.1221; Minnesota's
EPA-approved NNSR regulations can be found in chapter 7007.4000-
7007.4030; and, Wisconsin's EPA-approved NNSR regulations can be found
in NR 408. Each state's NNSR regulations contain provisions for how the
state must treat and control sources in Pb nonattainment areas,
consistent with 40 CFR 51.165, or appendix S to 40 CFR 51. EPA proposes
that Illinois, Michigan, Minnesota, and Wisconsin have met the
requirements with respect to the prohibition of interference with a
neighboring state's PSD program for the 2008 Pb NAAQS related to
section 110(a)(2)(D)(i)(II).
With regard to the applicable requirements for visibility
protection of section 110(a)(2)(D)(i)(II), states are subject to
visibility and regional haze program requirements under part C of the
CAA (which includes sections 169A and 169B). The 2009 Memo, the 2011
[[Page 27251]]
Memo, and 2013 Memo state that these requirements can be satisfied by
an approved SIP addressing reasonably attributable visibility
impairment, if required, or an approved SIP addressing regional haze.
Alternatively, the 2011 Memo states that most, if not all, Pb
stationary sources are located at distances from Class I areas such
that visibility impacts would be negligible. Although Pb can be a
component of coarse and fine particles, it generally comprises a small
fraction. When EPA evaluated the extent that Pb could impact
visibility, Pb-related visibility impacts were found to be
insignificant (e.g., less than 0.10%). Therefore, EPA anticipates that
Pb emissions will contribute only negligibly to visibility impairment
at Class I areas, and states can include an assessment as to this
assumption in their submissions.
EPA's final approval of Illinois' regional haze plan was published
on July 6, 2012 (see 77 FR 39943). The closest Class I area (Mingo
National Wildlife Refuge, Missouri) is located more than 150 miles away
from the partial Madison County nonattainment area. As a result, EPA
anticipates that Class I areas would experience less than 0.10% of
adverse visibility impact from any Pb-emitting sources in Illinois. EPA
proposes that Illinois has met this set of infrastructure SIP
requirements of section 110(a)(2)(D)(i)(II) for the 2008 Pb NAAQS.
EPA's final approval of Michigan's regional haze plan was published
on December 3, 2012 (see 77 FR 71533). Michigan's impact screening of
Pb-emitting sources indicated that no adverse impacts on air quality
should be expected in Class I areas. As a result, EPA anticipates that
Class I areas would experience less than 0.10% of adverse visibility
impact from any Pb-emitting source in Michigan. EPA proposes that
Michigan has met this set of infrastructure SIP requirements of section
110(a)(2)(D)(i)(II) for the 2008 Pb NAAQS.
EPA's final approval of Minnesota's regional haze plan was
published on June 12, 2012 (see 77 FR 34801). While the U.S. Steel
Minntac facility is located approximately 50 miles from the closest
Class I area (Boundary Waters, Minnesota), EPA had previously
determined that the ambient concentrations of Pb in the area around the
facility were expected to be less than 50% of the 2008 Pb NAAQS. When
the distance between the facility and the Boundary Waters is
considered, EPA anticipates that Class I areas would experience less
than 0.10% of adverse visibility impact from any Pb-emitting source in
Minnesota. EPA proposes that Minnesota has met this set of
infrastructure SIP requirements of 110(a)(2)(D)(i)(II) for the 2008 Pb
NAAQS.
EPA's final approval of Wisconsin's regional haze plan was
published on August 7, 2012 (see 77 FR 46952). As previously discussed
in the section 110(a)(2)(D)(i), there is only one required Pb monitor
in the state, and the local impacts from all other Pb-emitting sources
at or above 0.5 tpy are expected to be less than half of the 2008 Pb
NAAQS. The closest Class I area (Rainbow Lake, Wisconsin) is located
more than 200 miles from the closest Pb-emitting source emitting at or
above 0.5 tpy, and EPA anticipates that this area (or any other Class I
area) would experience less than 0.10% of adverse visibility impact
from any Pb-emitting sources in Wisconsin. EPA proposes that Wisconsin
has met this set of infrastructure SIP requirements of
110(a)(2)(D)(i)(II) for the 2008 Pb NAAQS.
Section 110(a)(2)(D)(ii) requires each SIP to contain adequate
provisions requiring compliance with the applicable requirements of
section 126 and section 115 (relating to interstate and international
pollution abatement, respectively).
Section 126(a) requires new or modified sources to notify
neighboring states of potential impacts from the source. The statute
does not specify the method by which the source should provide the
notification. States with SIP-approved PSD programs must have a
provision requiring such notification by new or modified sources. A
lack of such a requirement in state rules would be grounds for
disapproval of this element.
While Illinois and Minnesota have not adopted or submitted
regulations for PSD, Federally promulgated rules for this purpose are
in effect in each of the states, promulgated at 40 CFR 52.21. EPA has
currently delegated the authority to implement these regulations to
Illinois and Minnesota. These Federally promulgated rules contain
provisions requiring new or modified sources to notify neighboring
states of potential negative air quality impacts. EPA acknowledges that
the states have not satisfied the requirement for a SIP submission,
which results in a proposed disapproval with respect to this set of
infrastructure SIP requirements of section 110(a)(2)(D)(ii). However,
Illinois and Minnesota have no further obligations to EPA because both
states administer the Federally promulgated PSD regulations.
Michigan and Wisconsin have provisions in their respective EPA-
approved PSD programs requiring new or modified sources to notify
neighboring states of potential negative air quality impacts. The
states' submissions reference these provisions as being adequate to
meet the requirements of section 126(a). EPA proposes that Michigan and
Wisconsin have met the infrastructure SIP requirements of section
126(a) with respect to the 2008 Pb NAAQS. None of the states referenced
in this rulemaking have obligations under any other section of section
126.
The submissions from Illinois, Michigan, Minnesota, and Wisconsin
affirm that none of these states have pending obligations under section
115. EPA therefore is proposing that these states have met the
applicable infrastructure SIP requirements of section 110(a)(2)(D)(ii)
related to section 115 of the CAA (international pollution abatement).
E. Section 110(a)(2)(E)--Adequate Resources
This section requires each state to provide for adequate personnel,
funding, and legal authority under state law to carry out its SIP, and
related issues. Section 110(a)(2)(E)(ii) also requires each state to
comply with the requirements respecting state boards under section 128.
Sub-Element 1: Adequate Personnel, Funding, and Legal Authority Under
State Law To Carry Out Its SIP, and Related Issues
At the time of its submittal, Illinois EPA cited the recently
passed Public Act in the state that provides appropriations for the
Illinois Bureau of Air Programs and associated personnel. In addition
to the environmental performance partnership agreement (EnPPA) with
EPA, Illinois has confirmed that it retains all necessary resources to
carry out required air programs. As discussed in previous sections,
Illinois EPA has affirmed that 415 ILCS 5/4 and 415 ILCS 5/10 provide
the Director, in conjunction with IPCB, with the authority to develop
rules and regulations necessary to meet ambient air quality standards
and respond to any EPA findings of inadequacy with the Illinois SIP
program. Lastly, the IPCB ensures compliance with required laws or
elements of the state's attainment plan that are necessary to attain
the NAAQS, or that are necessary to comply with the requirements of the
CAA. EPA proposes that Illinois has met the infrastructure SIP
requirements of this portion of section 110(a)(2)(E) with respect to
the 2008 Pb NAAQS.
[[Page 27252]]
Michigan's budget ensures that EPA grant funds as well as state
funding appropriations are sufficient to administer its air quality
management program, and MDEQ has routinely demonstrated that it retains
adequate personnel to carry out the duties of this program. Michigan's
EnPPA with EPA documents certain funding and personnel levels for MDEQ.
Furthermore, Act 451 provides the legal authority under state law to
carry out the Michigan SIP. EPA proposes that Michigan has met the
infrastructure SIP requirements of this portion of section 110(a)(2)(E)
with respect to the 2008 Pb NAAQS.
Minnesota provided information on the state's authorized spending
by program, program priorities, and the State budget. MPCA's EnPPA with
EPA provides the MPCA's assurances of resources to carry out certain
air programs. EPA also notes that Minnesota Statute chapter 116.07
provides the legal authority under State law to carry out the SIP. EPA
proposes that Minnesota has met the infrastructure SIP requirements of
this portion of section 110(a)(2)(E) with respect to the 2008 Pb NAAQS.
Wisconsin's biennial budget ensures that EPA grant funds as well as
State funding appropriations are sufficient to administer its air
quality management program, and WDNR has routinely demonstrated that it
retains adequate personnel to administer its air quality management
program. Wisconsin's EnPPA with EPA documents certain funding and
personnel levels at WDNR. As discussed in previous sections, basic
duties and authorities in the State are outlined in WS chapter 285.11.
EPA proposes that Wisconsin has met the infrastructure SIP requirements
of this portion of section 110(a)(2)(E) with respect to the 2008 Pb
NAAQS.
As noted above in the discussion addressing section 110(a)(2)(C),
the resources needed to permit all sources emitting more than 100 tpy
or 250 tpy (as applicable) of GHG would require more resources than any
Region 5 State appears to have. This is not a concern in Illinois and
Minnesota, because PSD permitting for GHGs is based on Federally
promulgated PSD rules that ``tailor'' the applicability to 75,000 tons
per year (expressed as carbon dioxide equivalent).
EPA confirms that Michigan's PSD regulations provide the state with
adequate resources to issue permits to sources with GHG emissions
consistent with the Tailoring Rule thresholds; therefore, EPA proposes
that Michigan retains all the resources necessary to implement the
requirements of its SIP.
Given the effect of EPA's Narrowing Rule to provide that
Wisconsin's approved SIP does not involve permitting GHG sources
smaller than the Tailoring Rule thresholds, EPA proposes that Wisconsin
has the resources necessary to implement the requirements of its SIP.
Sub-Element 2: State Board Requirements Under Section 128 of the CAA
Section 110(a)(2)(E) also requires each SIP to contain provisions
that comply with the state board requirements of section 128 of the
CAA. That provision contains two explicit requirements: (i) That any
board or body which approves permits or enforcement orders under this
chapter shall have at least a majority of members who represent the
public interest and do not derive any significant portion of their
income from persons subject to permits and enforcement orders under
this chapter, and (ii) that any potential conflicts of interest by
members of such board or body or the head of an executive agency with
similar powers be adequately disclosed.
In today's action, EPA is neither proposing to approve or
disapprove the portions of the submissions from Illinois, Michigan,
Minnesota, and Wisconsin intended to address the state board
requirements of section 110(a)(2)(E)(ii). Instead, EPA will take
separate action on compliance with section 110(a)(2)(E)(ii) for these
states at a later time. EPA is working with each of these states to
address these requirements in the most appropriate way.
F. Section 110(a)(2)(F)--Stationary Source Monitoring System
States must establish a system to monitor emissions from stationary
sources and submit periodic emissions reports. Each plan shall also
require the installation, maintenance, and replacement of equipment,
and the implementation of other necessary steps, by owners or operators
of stationary sources to monitor emissions from such sources. The state
plan shall also require periodic reports on the nature and amounts of
emissions and emissions-related data from such sources, and correlation
of such reports by each state agency with any emission limitations or
standards established pursuant to this chapter. Lastly, the reports
shall be available at reasonable times for public inspection.
Illinois EPA requires regulated sources to submit various reports,
dependent on applicable requirements and the type of permit issued to
the source. These reports are submitted to the Bureau of Air's
Compliance Unit for review, and all reasonable efforts are made by
Illinois EPA to maximize the effectiveness of available resources to
review the required reports. EPA proposes that Illinois has satisfied
the infrastructure SIP requirements of section 110(a)(2)(F) with
respect to the 2008 Pb NAAQS.
Michigan Administrative Code (MAC) R 336.2001 to R 336.2004 provide
requirements for performance testing and sampling. MAC R 336.2101 to R
336.2199 provide requirements for continuous emission monitoring, and
MAC R 336.201 and R 336.202 require annual reporting of emissions. This
data is available to the public for inspection. EPA proposes that
Michigan has met the infrastructure SIP requirements of section
110(a)(2)(F) with respect to the 2008 Pb NAAQS.
Under Minnesota State air quality rules, any NAAQS is an applicable
requirement for stationary sources. Minnesota's monitoring rules have
been previously approved by EPA and are contained in Chapter 7011 of
Minnesota's SIP. Minnesota Statute chapter 116.07 gives MPCA the
authority to require owners or operators of emission facilities to
install and operate monitoring equipment, while Chapter 7007.0800 of
Minnesota's SIP sets forth the minimum monitoring requirements that
must be included in stationary source permits. Lastly, Chapter 7017 of
Minnesota's SIP contains monitoring and testing requirements, including
rules for continuous monitoring. EPA proposes that Minnesota has met
the infrastructure SIP requirements of section 110(a)(2)(F) with
respect to the 2008 Pb NAAQS.
WDNR requires regulated sources to submit various reports,
dependent on applicable requirements and the type of permit issued, to
the Bureau of Air Management Compliance Team. The frequency and
requirements for report review are incorporated as part of Wisconsin
Administrative Code NR 438 and Wisconsin Administrative Code NR 439.
Additionally, WDNR routinely submits quality assured analyses and data
obtained from its stationary source monitoring system for review and
publication. Basic authority for Wisconsin's Federally mandated
Compliance Assurance Monitoring reporting structure is provided in
Wisconsin Statute Chapter 285.65. EPA proposes that Wisconsin has met
the infrastructure SIP requirements of section 110(a)(2)(F) with
respect to the 2008 Pb NAAQS.
[[Page 27253]]
G. Section 110(a)(2)(G)--Emergency Powers
This section requires that a plan provide for authority that is
analogous to what is provided in section 303 of the CAA, and adequate
contingency plans to implement such authority. The 2011 Memo states
that infrastructure SIP submissions should specify authority, rested in
an appropriate official, to restrain any source from causing or
contributing to Pb emissions which present an imminent and substantial
endangerment to public health or welfare, or the environment.
Illinois has the necessary authority to address emergency episodes,
and these provisions are contained in 415 ILCS 5/34. 415 ILCS 5/43(a)
authorizes the Illinois EPA to request a state's attorney from Illinois
Attorney General's office to seek immediate injunctive relief in
circumstances of substantial danger to the environment or to the public
health of persons. EPA proposes that Illinois has met the applicable
infrastructure SIP requirements for this portion of section
110(a)(2)(G) with respect to the 2008 Pb NAAQS.
Michigan R 324.5518 of Act 451 provides MDEQ with the authority to
require the immediate discontinuation of air contaminant discharges
that constitute an imminent and substantial endangerment to the public
health, safety, or welfare, or to the environment. Furthermore, R
324.5530 of Act 451 provides for civil action by the Michigan Attorney
General for violations described in R 324.5518. EPA proposes that
Michigan has met the applicable infrastructure SIP requirements for
this portion of section 110(a)(2)(G) with respect to the 2008 Pb NAAQS.
Minnesota Statute 116.11 and Chapter 7000.5000 of the Minnesota SIP
contain the emergency powers set forth in the state. Specifically,
these regulations allow the agency to direct the immediate
discontinuance or abatement of the pollution without notice and without
a hearing, or at the request of the agency, the Attorney General may
bring an action in the name of the state in the appropriate district
court for a temporary restraining order to immediately abate or prevent
the pollution. EPA proposes that Minnesota has met the applicable
infrastructure SIP requirements for this portion of section
110(a)(2)(G) with respect to the 2008 Pb NAAQS.
WS chapter 285.85 provides the requirement for WDNR to act upon a
finding that episode or emergency conditions exist. The language
contained in this chapter authorizes WDNR to seek immediate injunctive
relief in circumstances of substantial danger to the environment or to
public health. EPA proposes that Wisconsin has met the applicable
infrastructure SIP requirements for this portion of section
110(a)(2)(G) with respect to the 2008 Pb NAAQS.
As indicated in the 2011 Memo, EPA believes that the central
components of a contingency plan for the 2008 Pb NAAQS would be to
reduce emissions from the source at issue and to communicate with the
public as needed. Where a state believes, based on its inventory of Pb
sources and historic monitoring data, that it does not need a more
specific contingency plan beyond having authority to restrain any
source from causing or contributing to an imminent and substantial
endangerment, then the state could provide such a detailed rationale in
place of a specific contingency plan.
EPA has reviewed historic data at Pb monitoring sites throughout
Illinois, Michigan, Minnesota, and Wisconsin, and believes that a
specific contingency plan beyond having authority to restrain any
source from causing or contributing to an imminent and substantial
endangerment is not necessary at this time. For example, one way to
quantify the possibility of imminent and substantial endangerment in
this context would be a daily monitored value for Pb that could by
itself cause a violation of the 2008 Pb NAAQS.\23\ EPA has reviewed
data from 2011-2013 (the most recent consecutive 36-month block of
complete data) and observes that no such daily monitored value exists.
As described in the section detailing interstate transport of Pb, EPA
does not anticipate other areas in these states needing specific
contingency measures due to low Pb emissions. EPA proposes that
Illinois, Michigan, Minnesota, and Wisconsin have met the applicable
infrastructure SIP requirements of section 110(a)(2)(G) related to
contingency measures for the 2008 Pb NAAQS.
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\23\ See appendix R to 40 CFR Part 50 for data handling
conventions and computations necessary for determining when the
NAAQS are met.
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H. Section 110(a)(2)(H)--Future SIP Revisions
This section requires states to have the authority to revise their
SIPs in response to changes in the NAAQS, availability of improved
methods for attaining the NAAQS, or to an EPA finding that the SIP is
substantially inadequate.
As previously mentioned, 415 ILCS 5/4 and 415 ILCS 5/10 provide the
Director of Illinois EPA, in conjunction with IPCB, with the authority
to develop rules and regulations necessary to meet ambient air quality
standards. Furthermore, they have the authority to respond to any EPA
findings of inadequacy with the Illinois SIP program. EPA proposes that
Illinois has met the infrastructure SIP requirements of section
110(a)(2)(H) with respect to the 2008 Pb NAAQS.
Michigan Act 451 324.5503 and 324.5512 provide the authority to:
Promulgate rules to establish standards for ambient air quality and
emissions; issue, deny, revoke, or reissue permits; make findings of
fact and determinations; make, modify, or cancel orders that require
the control of air pollution and/or permits rules and regulations
necessary to meet NAAQS; and prepare and develop a general
comprehensive plan for the control or abatement of existing air
pollution and for control or prevention of any new air pollution. EPA
proposes that Michigan has met the infrastructure SIP requirements of
section 110(a)(2)(H) with respect to 2008 Pb NAAQS.
Minnesota Statute chapter 116.07 grants the agency the authority to
``[a]dopt, amend, and rescind rules and standards having the force of
law relating to any purpose . . . for the prevention, abatement, or
control of air pollution.'' EPA proposes that Minnesota has met the
infrastructure SIP requirements of section 110(a)(2)(H) with respect to
the 2008 Pb NAAQS.
WS chapter 285.11(6) provides WDNR with the authority to develop
all rules, limits, and regulations necessary to meet the NAAQS as they
evolve, and to respond to any EPA findings of inadequacy with the
overall Wisconsin SIP and air management programs. EPA proposes that
Wisconsin has met the infrastructure SIP requirements of section
110(a)(2)(H) with respect to the 2008 Pb NAAQS.
I. Section 110(a)(2)(I)--Nonattainment Area Plan or Plan Revisions
Under Part D
The CAA requires that each plan or plan revision for an area
designated as a nonattainment area meet the applicable requirements of
part D of the CAA. Part D relates to nonattainment areas.
EPA has determined that section 110(a)(2)(I) is not applicable to
the infrastructure SIP process. Instead, EPA takes action on part D
attainment plans through separate processes.
[[Page 27254]]
J. Section 110(a)(2)(J)--Consultation With Government Officials; Public
Notifications; PSD; Visibility Protection
The evaluation of the submissions from Illinois, Michigan,
Minnesota, and Wisconsin with respect to the requirements of section
110(a)(2)(J) are described below.
Sub-Element 1: Consultation With Government Officials
States must provide a process for consultation with local
governments and Federal Land Managers (FLMs) carrying out NAAQS
implementation requirements.
Illinois EPA is required to give notice to the Office of the
Attorney General and the Illinois Department of Natural Resources
during the rulemaking process. Furthermore, Illinois provides notice to
reasonably anticipated stakeholders and interested parties, as well as
to any FLM if the rulemaking applies to Federal land which the FLM has
authority over. Additionally, Illinois EPA participates in the Lake
Michigan Air Director's Consortium (LADCO), which consists of
collaboration with the states of Indiana, Michigan, Minnesota, Ohio,
and Wisconsin. EPA proposes that Illinois has met the infrastructure
SIP requirements of this portion of section 110(a)(2)(J) with respect
to the 2008 Pb NAAQS.
MDEQ actively participates in planning efforts that include
stakeholders from local governments, the business community, and
community activist groups. MDEQ also routinely involves FLMs and Tribal
groups in Michigan SIP development. Michigan is also an active member
of LADCO. Therefore, EPA proposes that Michigan has met the
infrastructure SIP requirements of this portion of section 110(a)(2)(J)
with respect to the 2008 Pb NAAQS.
Historically, MPCA actively participated in the Central Regional
Air Planning Association as well as the Central States Air Resource
Agencies. MPCA is now a full-time member of LADCO, and it has also
demonstrated that it frequently consults and discusses issues with
pertinent Tribes. Therefore, EPA proposes that Minnesota has met the
infrastructure SIP requirements of this portion of section 110(a)(2)(J)
with respect to the 2008 Pb NAAQS.
WS chapter 285.13(5) contains the provisions for WDNR to advise,
consult, contract, and cooperate with other agencies of the state and
local governments, industries, other states, interstate or inter-local
agencies, the Federal government, and interested persons or groups
during the entire process of SIP revision development and
implementation and for other elements regarding air management for
which the agency is the officially charged agency. WDNR's Bureau of Air
Management has effectively used formal stakeholder structures in the
development and refinement of all SIP revisions. Additionally,
Wisconsin is an active member of LADCO. EPA proposes that Wisconsin has
satisfied the infrastructure SIP requirements of this portion of
section 110(a)(2)(J) with respect to the 2008 Pb NAAQS.
Sub-Element 2: Public Notification
Section 110(a)(2)(J) also requires states to notify the public if
NAAQS are exceeded in an area and must enhance public awareness of
measures that can be taken to prevent exceedances.
Illinois EPA continues to collaborate with the Cook County
Department of Environmental Control. This consists of: Continued and
routine monitoring of air quality throughout the State, and notifying
the public when unhealthy air quality is measured or forecasted.
Specific to Pb, Illinois EPA maintains a publicly available Web site
that allows interested members of the community and other stakeholders
to obtain information about the adverse health effects associated with
Pb, as well as the efforts being taken to mitigate elevated levels of
Pb.\24\ EPA proposes that Illinois has met the infrastructure SIP
requirements of this portion of section 110(a)(2)(J) with respect to
the 2008 Pb NAAQS.
---------------------------------------------------------------------------
\24\ See http://www.epa.state.il.us/community-relations/fact-sheets/pilsen-neighborhood-lead/fact-sheet-1.html.
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MDEQ posts current air quality concentrations on its Web pages, and
prepares an annual air quality report. Specific to Pb, the agency
maintains a Web site devoted to informing the public and other
interested parties of the health and environmental effects associated
with exposure to Pb, as well as resources for retailers who recycle
batteries containing Pb. Lastly, the Pb oriented Web site contains
information relating to the nonattainment area in Ionia County
including: Monitored values of Pb in Ionia County as well as other
sites in Michigan, technical information about the nonattainment
designation, soil sampling data, public outreach documents, and ways
that the state is addressing the elevated levels of Pb in Ionia
County.\25\ EPA proposes that Michigan has met the infrastructure SIP
requirements of this portion of section 110(a)(2)(J) with respect to
the 2008 Pb NAAQS.
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\25\ See http://www.michigan.gov/deq/0,4561,7-135-3307_29693_
30031-244345_,00.html.
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Minnesota dedicates portions of the MPCA Web site to enhancing
public awareness of measures that can be taken to prevent exceedances.
For example, information on these pages includes ways to reduce Pb
exposure,\26\ as well as the biennial reports that MPCA prepares for
the state legislature.\27\ EPA proposes that Minnesota has met the
infrastructure SIP requirements of this portion of section 110(a)(2)(J)
with respect to the 2008 Pb NAAQS.
---------------------------------------------------------------------------
\26\ See http://www.pca.state.mn.us/index.php/waste/waste-and-cleanup/waste-management/lead.html.
\27\ See http://www.pca.state.mn.us/index.php/about-mpca/legislative-resources/legislative-reports/air-quality-in-minnesota-reports-to-the-legislature.html.
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WDNR maintains portions of its Web site specifically for issues
related to the 2008 Pb NAAQS.\28\ Information related to the one Pb
monitoring site can be found on Wisconsin's Web site, as is the
calendar for all public events and public hearings held in the state.
EPA proposes that Wisconsin has met the infrastructure SIP requirements
of this portion of section 110(a)(2)(J) with respect to the 2008 Pb
NAAQS.
---------------------------------------------------------------------------
\28\ http://dnr.wi.gov/topic/AirQuality/Pollutants.html.
---------------------------------------------------------------------------
Sub-Element 3: PSD
States must meet applicable requirements of section 110(a)(2)(C)
related to PSD. Each state's PSD program in the context of
infrastructure SIPs has already been discussed in the paragraphs
addressing section 110(a)(2)(C) and 110(a)(2)(D)(i)(II), and EPA notes
that the proposed actions for those sections are consistent with the
proposed actions for this portion of section 110(a)(2)(J). Our proposed
actions are reiterated below.
Illinois and Minnesota have not adopted or submitted regulations
for PSD, although Federally promulgated rules for this purpose are in
effect in these two states, promulgated at 40 CFR 52.21. EPA has
currently delegated the authority to implement these regulations to
Illinois and Minnesota. These Federally promulgated rules contain the
applicable provisions contained in the Phase 2 Rule, the 2008 NSR Rule,
the 2010 NSR Rule, and the GHG thresholds as outlined in the Tailoring
Rule. EPA acknowledges that the states have not satisfied the
requirement for a SIP submission, which results in a proposed
disapproval with respect to these requirements. However, Illinois and
Minnesota have no further obligations to EPA because
[[Page 27255]]
both states administer the Federally promulgated PSD regulations.
Michigan has submitted revisions to its PSD regulations that are
wholly consistent with the EPA's requirements contained in the Phase 2
Rule, the 2008 NSR Rule, and the 2010 Rule. EPA approved these
revisions on April 4, 2014 (see 79 FR 18802) and we are proposing that
Michigan has met the applicable infrastructure SIP requirements for the
2008 Pb NAAQS as they relate to the requirements obligated by EPA's PSD
regulations. We are also proposing that Michigan has met the applicable
PSD requirements associated with the permitting of GHG emitting sources
consistent with the thresholds laid out in the Tailoring Rule.
In today's action, EPA is not proposing to approve or disapprove
Wisconsin's satisfaction of the structural PSD elements for
infrastructure SIPs, including the requirements obligated by the Phase
2 Rule, the 2008 NSR Rule, and the 2010 NSR Rule. Further, we are not
proposing to approve or disapprove Wisconsin's satisfaction of the
applicable PSD requirements associated with the permitting of GHG
emitting sources consistent with the thresholds laid out in the
Tailoring Rule. We will address Wisconsin's compliance with all of
these requirements in a separate rulemaking.
Sub-Element 4: Visibility Protection
With regard to the applicable requirements for visibility
protection, states are subject to visibility and regional haze program
requirements under part C of the CAA (which includes sections 169A and
169B). In the event of the establishment of a new NAAQS, however, the
visibility and regional haze program requirements under part C do not
change. Thus, we find that there is no new visibility obligation
``triggered'' under section 110(a)(2)(J) when a new NAAQS becomes
effective. In other words, the visibility protection requirements of
section 110(a)(2)(J) are not germane to infrastructure SIPs for the
2008 Pb NAAQS.
K. Section 110(a)(2)(K)--Air Quality Modeling/Data
SIPs must provide for performing air quality modeling for
predicting effects on air quality of emissions from any NAAQS pollutant
and submission of such data to EPA upon request.
Illinois EPA maintains the capability to perform modeling of the
air quality impacts of emissions of all criteria pollutants, including
the capability to use complex photochemical grid models. This modeling
is used in support of the SIP for all nonattainment areas in the state.
Illinois EPA also requires air quality modeling in support of
permitting the construction of major and some minor new sources under
the PSD program. These modeling data are available to EPA as well as
the public upon request. Lastly, Illinois EPA participates in LADCO,
which conducts regional modeling that is used for statewide planning
purposes. EPA proposes that Illinois has met the infrastructure SIP
requirements of section 110(a)(2)(K) with respect to the 2008 Pb NAAQS.
MDEQ reviews the potential impact of major and some minor new
sources, consistent with 40 CFR part 51, appendix W, ``Guidelines on
Air Quality Models.'' These modeling data are available to EPA upon
request. Michigan also participates and coordinates with the other
LADCO states on regional planning efforts. EPA proposes that Michigan
has met the infrastructure SIP requirements of section 110(a)(2)(K)
with respect to the 2008 Pb NAAQS.
MPCA reviews the potential impact of major and some minor new
sources. Under R 7007.0500, MPCA may require applicable major sources
in Minnesota to perform modeling to show that emissions do not cause or
contribute to a violation of any NAAQS. Furthermore, MPCA maintains the
capability to perform its own modeling. Because Minnesota administers
the Federally promulgated PSD regulations, pre-construction permitting
modeling is conducted in compliance with EPA's regulations. EPA
proposes that Minnesota has met the infrastructure SIP requirements of
section 110(a)(2)(K) with respect to the 2008 Pb NAAQS.
WDNR maintains the capability to perform computer modeling of the
air quality impacts of emissions of all criteria pollutants, including
both source-oriented and more regionally directed complex photochemical
grid models. WDNR collaborates with LADCO, EPA, and other Lake Michigan
States in order to perform modeling. The authorities to perform
modeling in Wisconsin reside in WS chapter 285.11, WS chapter 285.13,
and WS chapter 285.60-285.69. EPA proposes that Wisconsin has met the
infrastructure SIP requirements of section 110(a)(2)(K) with respect to
the 2008 Pb NAAQS.
L. Section 110(a)(2)(L)--Permitting Fees
This section requires SIPs to mandate each major stationary source
to pay permitting fees to cover the cost of reviewing, approving,
implementing, and enforcing a permit.
Illinois EPA implements and operates the title V permit program,
which EPA approved on December 4, 2001 (66 FR 62946) and the
provisions, requirements, and structures associated with the costs for
reviewing, approving, implementing, and enforcing various types of
permits are contained in 415 ILCS 5/39.5. EPA proposes that Illinois
has met the infrastructure SIP requirements of section 110(a)(2)(L) for
the 2008 Pb NAAQS.
MDEQ implements and operates the title V permit program, which EPA
approved on December 4, 2001 (66 FR 62949); revisions to the program
were approved on November 10, 2003 (68 FR 63735). Section 324.5522 of
Act 451 confers upon MDEQ the authority to levy and collect an annual
air quality fee from owners or operators of each fee-subject facility
in Michigan as defined in R 336.1212. Michigan R 336.1201 contains the
provisions, requirements, and structures associated with the costs for
reviewing, approving, implementing, and enforcing various types of
permits. EPA proposes that Michigan has met the infrastructure SIP
requirements of section 110(a)(2)(L) for the 2008 Pb NAAQS.
MPCA implements and operates the title V permit program, which EPA
approved on December 4, 2001 (66 FR 62967). Minnesota Rules 7002.0005
through 7002.0085 contain the provisions, requirements, and structures
associated with the costs for reviewing, approving, implementing, and
enforcing various types of permits. EPA proposes that Minnesota has met
the infrastructure SIP requirements of section 110(a)(2)(L) for the
2008 Pb NAAQS.
WDNR implements and operates the title V permit program, which EPA
approved on December 4, 2001 (66 FR 62951); revisions to the program
were approved on February 28, 2006 (71 FR 9934). Wisconsin NR 410
contains the provisions, requirements, and structures associated with
the costs for reviewing, approving, implementing, and enforcing various
types of permits. EPA proposes that Wisconsin has met the
infrastructure SIP requirements of section 110(a)(2)(L) for the 2008 Pb
NAAQS.
M. Section 110(a)(2)(M)--Consultation/Participation by Affected Local
Entities
States must consult with and allow participation from local
political subdivisions affected by the SIP.
All public participation procedures pertaining to Illinois EPA are
consistent with 35 Illinois Administrative Code Part 164 and Part 252.
Part 252 is an approved portion of Illinois' SIP. EPA
[[Page 27256]]
proposes that Illinois has met the infrastructure SIP requirements of
section 110(a)(2)(M) with respect to the 2008 Pb NAAQS.
In Michigan, memoranda of understanding regarding consultation or
participation in the SIP development process have been entered between
MDEQ and local political subdivisions. MDEQ also provides opportunity
for stakeholder workgroup participation in rule development processes.
Public comment periods, and hearings, if requested, are held in
accordance with the requirements in 40 CFR Part 51. EPA proposes that
Michigan has met the infrastructure SIP requirements of section
110(a)(2)(M) with respect to the 2008 Pb NAAQS.
Minnesota regularly consults with local political subdivisions
affected by the SIP, where applicable. EPA observes that Minnesota
Statute chapter 116.05 authorizes cooperation and agreement between
MPCA and other State and local governments. Additionally, the Minnesota
Administrative Procedures Act (Minnesota Statute chapter 14) provides
general notice and comment procedures that are followed during SIP
development. Lastly, MPCA regularly issues public notices on proposed
actions. EPA proposes that Minnesota has met the infrastructure SIP
requirements of section 110(a)(2)(M) with respect to the 2008 Pb NAAQS.
In addition to the measures outlined in the paragraph addressing
WDNR's submittal regarding consultation requirements of section
110(a)(2)(J), as contained in WS chapter 285.13(5), the state follows a
formal public hearing process in the development and adoption of all
SIP revisions that entail new or revised control programs or strategies
and targets. For SIP revisions covering more than one source, WDNR is
required to provide the standing committees of the state legislature
with jurisdiction over environmental matters with a 60 day review
period to ensure that local entities have been properly engaged in the
development process. EPA proposes that Wisconsin has met the
infrastructure SIP requirements of section 110(a)(2)(M) with respect to
the 2008 Pb NAAQS.
V. What action is EPA taking?
EPA is proposing to approve most elements of submissions from
Illinois, Michigan, Minnesota, and Wisconsin certifying that their
current SIPs are sufficient to meet the required infrastructure
elements under sections 110(a)(1) and (2) for the 2008 Pb NAAQS. We are
also proposing to disapprove some elements of submissions from Illinois
and Minnesota as they relate to each state's PSD program. As described
above, both of these states already administer federally promulgated
PSD regulations through delegation, and therefore no practical effect
is associated with today's proposed disapproval or future final
disapproval of those elements.
EPA's proposed actions for each state's satisfaction of
infrastructure SIP requirements, by element of section 110(a)(2) are
contained in the table below.
------------------------------------------------------------------------
Element IL MI MN WI
------------------------------------------------------------------------
(A): Emission limits and other A A A A
control measures.
(B): Ambient air quality A A A A
monitoring and data system.
(C)1: Enforcement of SIP A A A A
measures.
(C)2: PSD program for Pb........ D,* A D,* NA
(C)3: NOX as a precursor to D,* A D,* NA
ozone for PSD.
(C)4: PM2.5 Precursors/PM2.5 and D,* A D,* NA
PM10 condensables for PSD.
(C)5: PM2.5 Increments.......... D,* A D,* NA
(C)5: GHG permitting thresholds D,* A D,* NA
in PSD regulations.
(D)1: Contribute to A A A A
nonattainment/interfere with
maintenance of NAAQS.
(D)2: PSD....................... ** ** ** **
(D)3: Visibility Protection..... A A A A
(D)4: Interstate Pollution D,* A D,* A
Abatement.
(D)5: International Pollution A A A A
Abatement.
(E): Adequate resources......... A A A A
(E): State boards............... NA NA NA NA
(F): Stationary source A A A A
monitoring system.
(G): Emergency power............ A A A A
(H): Future SIP revisions....... A A A A
(I): Nonattainment area plan or NA NA NA NA
plan revisions under part D.
(J)1: Consultation with A A A A
government officials.
(J)2: Public notification....... A A A A
(J)3: PSD....................... ** ** ** **
(J)4: Visibility protection..... + + + +
(K): Air quality modeling and A A A A
data.
(L): Permitting fees............ A A A A
(M): Consultation and A A A A
participation by affected local
entities.
------------------------------------------------------------------------
In the above table, the key is as follows:
A Approve
NA No Action/Separate Rulemaking
D Disapprove
+ Not germane to infrastructure SIPs
* Federally promulgated rules in place
** Previously discussed in element (C)
To clarify, EPA is proposing to disapprove the infrastructure SIP
submissions from Illinois and Minnesota with respect to certain PSD
requirements including: (i) Provisions that adequate address the 2008
Pb NAAQS; (ii) the explicit identification of NOX as a
precursor to ozone consistent with the Phase 2 Rule; (iii) the explicit
identification of SO2 and NOX as PM2.5
precursors (and the significant emissions rates for direct
PM2.5, and SO2 and NOX as its
precursors), and the regulation of PM2.5 and PM10
condensables, consistent with the requirements of the 2008 NSR Rule;
(iv) the PM2.5 increments and associated implementation
rules consistent with the 2010 NSR Rule; and, (v) permitting of GHG
emitting sources at the Federal Tailoring Rule thresholds.
EPA is also proposing to disapprove the infrastructure SIP
submissions from Illinois and Minnesota with respect to the
requirements of section 110(a)(2)(D)(ii) related to interstate
pollution abatement. Specifically, this section requires states with
PSD
[[Page 27257]]
programs have provisions requiring a new or modified source to notify
neighboring states of the potential impacts from the source, consistent
with the requirements of section 126(a).
However, Illinois and Minnesota have no further obligations to EPA
because federally promulgated rules, promulgated at 40 CFR 52.21 are in
effect in each of these states. EPA has delegated the authority to
Illinois and Minnesota to administer these rules, which include
provisions related to PSD and interstate pollution abatement. A final
disapproval for Illinois or Minnesota for these infrastructure SIP
requirements will not result in sanctions under section 179(a), nor
will it obligate EPA to promulgate a FIP within two years of final
action if the states do not submit revisions to their PSD SIPs
addressing these deficiencies. Instead, Illinois and Minnesota are
already administering the federally promulgated PSD regulations.
VI. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve State choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves State law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by State
law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
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);
does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
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 (59 FR 7629, February 16, 1994).
In addition, this rule does not have Tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the State, and EPA notes that it will not impose substantial direct
costs on Tribal governments or preempt Tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Lead, Reporting and
recordkeeping requirements.
Dated: May 2, 2014.
Susan Hedman,
Regional Administrator, Region 5.
[FR Doc. 2014-11022 Filed 5-12-14; 8:45 am]
BILLING CODE 6560-50-P