[Federal Register Volume 79, Number 154 (Monday, August 11, 2014)]
[Rules and Regulations]
[Pages 46703-46706]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-18827]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2014-0517; FRL-9914-95-Region-5]


Approval and Promulgation of Air Quality Implementation Plans; 
Wisconsin; Finding of Failure To Submit a PSD State Implementation Plan 
Revision for PM2.5

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) finds that the State 
of Wisconsin has not made a necessary Prevention of Significant 
Deterioration (PSD) State Implementation Plan (SIP) submission to 
address the PSD permitting of Particulate Matter of less than 2.5 
micrometers (PM2.5) emissions, as required by the Clean Air 
Act (CAA). Specifically, EPA has determined that Wisconsin has not 
submitted a SIP revision to address the PM2.5 PSD increments 
and implementing regulations as promulgated by EPA on October 20, 2010, 
by the required deadline of July 20, 2012. The CAA requires EPA to 
promulgate a Federal Implementation Plan (FIP) to address the 
outstanding PSD SIP elements by no later than 24 months after the 
effective date of this finding. EPA is making this finding in 
accordance with section 110 and part C of the CAA.

DATES: This final rule is effective on August 11, 2014.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2014-0517. All documents in the docket are listed on 
the www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, i.e., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically through www.regulations.gov or in hard copy at the 
Environmental Protection Agency,

[[Page 46704]]

Region 5, Air and Radiation Division, 77 West Jackson Boulevard, 
Chicago, Illinois 60604. This facility is open from 8:30 a.m. to 4:30 
p.m., Monday through Friday, excluding Federal holidays. We recommend 
that you telephone Andrea Morgan, Environmental Engineer, at (312) 353-
6058 before visiting the Region 5 office.

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

SUPPLEMENTARY INFORMATION: Section 553 of the Administrative Procedures 
Act (APA), 5 U.S.C. 553(b)(B), provides that, when an agency for good 
cause finds that notice and public procedure are impracticable, 
unnecessary, or contrary to the public interest, the agency may issue a 
rule without providing notice and an opportunity for public comment. 
EPA has determined that there is good cause for making this rule final 
without prior proposal and opportunity for comment because no 
significant EPA judgment is involved in making a finding of failure to 
submit SIPs, or elements of SIPs, required by the CAA, where States 
have made no submissions to meet the requirement. No additional fact 
gathering is necessary. Thus, notice and public procedure are 
unnecessary. Furthermore, providing notice and comment would be 
impracticable because of the limited time provided under the CAA for 
making such determinations. EPA believes that because of the limited 
time and non-controversial nature of this finding, Congress did not 
intend that it be subject to notice-and-comment rulemaking. Finally, 
notice and comment would be contrary to the public interest because it 
would divert Agency resources from the critical substantive review of 
submitted SIPs. See 58 FR 51270, 51272, note 17 (October 1, 1993); 59 
FR 39832, 39853 (August 4, 1994). EPA finds that these constitute good 
cause under 5 U.S.C. 553(b)(B).
    EPA has also determined that today's finding of failure to submit 
for Wisconsin is effective upon publication because this final action 
falls under the good cause exemption in 5 U.S.C. 553(d)(3) of the APA. 
The expedited effective date for this action is authorized under 5 
U.S.C. 553(d)(3), which allows an effective date less than 30 days 
after publication ``as otherwise provided by the agency for good cause 
found and published with the rule.'' EPA has determined that there is 
good cause for making this rule effective upon publication because the 
PSD SIP element is already overdue and the State has been made aware of 
applicable provisions of the CAA relating to overdue SIP revisions. The 
State of Wisconsin failed to submit a required PSD SIP revision by the 
mandated deadline of July 20, 2012. We have previously alerted 
Wisconsin through meetings that it has failed to make the submittal by 
the deadline. Consequently, the State has been on notice that today's 
action was pending. The State and general public are aware of 
applicable provisions of the CAA that relate to failure to submit a 
required implementation plan. In addition, this action simply starts a 
24-month ``clock'' wherein EPA must promulgate a Federal Implementation 
Plan (FIP) as required by CAA section 110(c). Additionally, the purpose 
of the 30-day waiting period prescribed in 5 U.S.C. 553(d) is to give 
affected parties a reasonable time to prepare before the final rule 
takes effect. Whereas here, the affected parties, such as the State of 
Wisconsin and sources within the State, do not need time to adjust and 
prepare before the finding of failure to submit takes effect. EPA finds 
that the above reasons support an effective date prior to 30 days after 
the date of publication and constitute good cause under 5 U.S.C. 
553(d)(3).
    Throughout this document whenever ``we,'' ``us,'' or ``our'' is 
used, we mean EPA. This supplementary information section is arranged 
as follows:

I. Overview of the PM2.5 National Ambient Air Quality 
Standards Requirements
II. What action Is EPA taking?
III. Statutory and Executive Order Reviews

I. Overview of the PM2.5 National Ambient Air Qquality 
Standards Requirements

    To implement the PM2.5 National Ambient Air Quality 
Standards (NAAQS), EPA issued two separate final rules that establish 
the New Source Review (NSR) permitting requirements for 
PM2.5: the NSR PM2.5 Implementation Rule 
promulgated on May 16, 2008 (73 FR 28321), and the PM2.5 PSD 
Increments--Significant Impact Levels (SILs)--Significant Monitoring 
Concentration (SMC) Rule promulgated on October 20, 2010 (75 FR 64864). 
EPA's 2008 NSR PM2.5 Implementation Rule required States to 
submit applicable SIP revisions to EPA no later than May 16, 2011, to 
address this rule's PSD and nonattainment NSR SIP requirements. The 
Wisconsin Department of Natural Resources (WDNR) first submitted 
provisions addressing the 2008 PM2.5 NSR Implementation Rule 
on May 12, 2011, and on July 25, 2013, EPA issued a final disapproval 
of the submittal because it did not include all of the required 
elements (78 FR 44881). WDNR submitted a revised SIP revision to EPA on 
March 12, 2014, and EPA proposed approval of the revised provisions on 
June 30, 2014 (79 FR 36689), because EPA found the submittal addressed 
all the required elements of the 2008 NSR PM2.5 
Implementation Rule. As Wisconsin made a submission that fully 
addressed the 2008 PM2.5 NSR Implementation Rule, today's 
finding of failure to submit only addresses the required elements of 
the 2010 PM2.5 PSD Increments--SILs--SMC Rule.
    The PM2.5 PSD Increments--SILs--SMC Rule required States 
to submit SIP revisions to EPA by July 20, 2012, adopting provisions 
equivalent to or at least as stringent as the PM2.5 PSD 
increments and associated implementing regulations. Specifically, the 
rule requires a State's submitted PSD SIP revision to adopt and submit 
for EPA approval the PM2.5 increments issued pursuant to 
section 166(a) of the CAA to prevent significant deterioration of air 
quality in areas meeting the NAAQS. States were also required to adopt 
and submit for EPA approval revisions to the definitions for ``major 
source baseline date,'' ``minor source baseline date,'' and ``baseline 
area'' as part of the implementing regulations for the PM2.5 
increments.
    The PM2.5 PSD Increments--SILs--SMC Rule also allowed 
States to discretionarily adopt and submit for EPA approval: (1) SILs, 
which are used as a screening tool to evaluate the impact a proposed 
new major source or major modification may have on the NAAQS or PSD 
increment; and (2) a SMC (also a screening tool), which is used to 
determine the subsequent level of data gathering required for a PSD 
permit application for emissions of PM2.5. However, on 
January 22, 2013, the United States Court of Appeals for the District 
of Columbia Circuit (Court) granted a request from EPA to vacate and 
remand to EPA the portions of the PM2.5 PSD Increments -- 
SILs--SMC Rule PM2.5 addressing the SILs for 
PM2.5 so that EPA could voluntarily correct an error in 
these provisions. The Court also vacated the parts of the 
PM2.5 PSD Increments -- SILs--SMC Rule establishing a 
PM2.5 SMC, finding that EPA was precluded from using the 
PM2.5 SMCs to exempt permit applicants from the statutory 
requirement to compile preconstruction monitoring data. Sierra Club v. 
EPA, 705 F.3d 458,

[[Page 46705]]

463-69. On December 9, 2013, EPA issued a good cause final rule 
formally removing the affected SILs and SMC provisions from the CFR. 
See 78 FR 73698. As such, SIP submittals should no longer include the 
vacated PM2.5 SILs at 40 CFR 51.166(k)(2) and 52.21(k)(2) 
and vacated PM2.5 SMC provisions at 40 CFR 
51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c) for PM2.5 PSD 
permitting. EPA notes that today's finding of failure to submit for the 
State of Wisconsin only applies to PM2.5 increments and the 
supporting regulations and does not include the optional SILs and SMC 
component of the PM2.5 PSD Increments--SILs--SMC Rule.

II. What action is EPA taking?

    EPA is making a finding that the State of Wisconsin has failed to 
submit a required PSD SIP revision to address the implementation and 
permitting of PM2.5 emissions in the Wisconsin PSD program. 
Specifically, we are finding that Wisconsin failed to submit a SIP 
revision, addressing the required PM2.5 PSD elements 
establishing increments and the implementing regulations by the 
specified deadline of July 20, 2012, as required by the 2010 
PM2.5 PSD Increments--SILs--SMC Rule. By no later than 24 
months after the effective date of this ruling, EPA is required by the 
CAA to promulgate a FIP for Wisconsin to address the PM2.5 
PSD requirements for increments. In addition, CAA section 110(c) 
provides that EPA can promulgate a FIP immediately after making the 
finding of failure to submit a required SIP, as late as two years after 
making the finding, or any time in between. This finding of failure to 
submit does not impose sanctions or set deadlines for imposing 
sanctions as described in section 179 of the CAA, because this finding 
does not pertain to the elements of a part D, title I, plan for 
nonattainment areas as required under section 110(a)(2)(I), and because 
this action is not a SIP call pursuant to section 110(k)(5). This 
action will be effective on August 11, 2014.

III. Statutory and Executive Order Reviews.

A. Executive Order 12866: Regulatory Planning and Executive Order 
13563: Improving Regulation and Regulatory Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and 
is therefore not subject to review under EO 12866 and 13563 (76 FR 
3821, January 21, 2011).

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
This final rule does not establish any new information collection 
requirement apart from what is already required by law. This rule 
relates to the requirement in the CAA for States to submit PSD SIPs 
under section 166(b) to satisfy certain PSD requirements under the CAA 
for the PM2.5 NAAQS. Burden means the total time, effort or 
financial resources expended by persons to generate, maintain, retain 
or disclose or provide information to or for a federal agency. This 
includes the time needed to review instructions; develop, acquire, 
install and utilize technology and systems for the purposes of 
collecting, validating and verifying information, processing and 
maintaining information and disclosing and providing information; 
adjust the existing ways to comply with any previously applicable 
instructions and requirements; train personnel to be able to respond to 
a collection of information; search data sources; complete and review 
the collection of information; and transmit or otherwise disclose the 
information. An agency may not conduct or sponsor, and a person is not 
required to respond to a collection of information unless it displays a 
currently valid Office of Management and Budget (OMB) control number. 
The OMB control numbers for EPA's regulations in the CFR are listed in 
40 CFR part 9.

C. Regulatory Flexibility Act (RFA)

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the APA or any other 
statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations and small 
governmental jurisdictions. For the purpose of assessing the impacts of 
this final rule on small entities, small entity is defined as: (1) A 
small business that is a small industry entity as defined in the U.S. 
Small Business Administration size standards (See 13 CFR 121); (2) a 
small governmental jurisdiction that is a government of a city, county, 
town, school district or special district with a population of less 
than 50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of this final rule on small 
entities, I certify that this rule will not have a significant economic 
impact on a substantial number of small entities. This final rule will 
not impose any requirements on small entities. This action relates to 
the requirement in the CAA for States to submit PSD SIPs under section 
166(b) to satisfy certain prevention of significant deterioration 
requirements of the CAA for the PM2.5 NAAQS. Because EPA has 
made a ``good cause'' finding that this action is not subject to 
notice-and-comment requirements under the APA and any other statute, it 
is not subject to the regulatory flexibility provisions of the RFA.

D. Unfunded Mandates Reform Act of 1995 (UMRA)

    This action contains no federal mandate under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-
1538 for State, local and tribal governments and the private sector. 
The action imposes no enforceable duty on any State, local or tribal 
governments or the private sector. Therefore, this action is not 
subject to the requirements of section 202 and 205 of the UMRA. This 
action is also not subject to the requirements of section 203 of UMRA 
because it contains no regulatory requirements that might significantly 
or uniquely affect small governments. This action relates to the 
requirement in the CAA for States to submit PSD SIPs under section 
166(b) to satisfy certain prevention of significant deterioration 
requirements under the CAA for the PM2.5 NAAQS. This rule 
merely finds that Arkansas has not met that requirement. Accordingly, 
no additional costs to State, local, or tribal governments, or to the 
private sector result from this action.
    Additionally, because EPA has made a ``good cause'' that this 
action is not subject to notice-and-comment requirements under the APA 
or any other statute, it is not subject to sections 202 and 205 of the 
UMRA.

E. Executive Order 13132: Federalism

    EO 13132, entitled ``Federalism'' (64 FR 43255, August 10, 1999), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by State and local officials in the development of 
regulatory policies that have federalism implications.'' ``Policies 
that have federalism implications'' is defined in the EO to include 
regulations that have ``substantial direct effects on the States, or 
the relationship between

[[Page 46706]]

the national government and the States or on the distribution of power 
and responsibilities among the various levels of government.'' This 
final rule does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in EO 13132. The CAA establishes the scheme whereby States 
take the lead in developing plans to meet the NAAQS. This rule will not 
modify the relationship of the States and EPA for purposes of 
developing programs to implement the NAAQS. Thus, EO 13132 does not 
apply to this rule.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    EO 13175, entitled ``Consultation and Coordination with Indian 
Tribal Governments'' (65 FR 67249, November 9, 2000), requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by Tribal officials in the development of regulatory policies that have 
Tribal implications.'' This final rule does not have tribal 
implications, as specified in EO 13175. This rule responds to the 
requirement in the CAA for States to submit PSD SIPs under section 
166(b) to satisfy certain prevention of significant deterioration 
requirements under the CAA for PM2.5 NAAQS. No tribe is 
subject to the requirement to submit an implementation plan under 
section 166(b) within 21 months of promulgation of PSD regulations 
under section 166(a).

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

    EPA interprets EO 13045 (62 FR 19885, April23, 1997) as applying 
only to those regulatory actions that concern health or safety risks, 
such that the analysis required under section 5-501 of the EO has the 
potential to influence the regulation. This action is not subject to EO 
13045 because it merely finds that Wisconsin has failed to make a 
submission that is required under the CAA to implement the 
PM2.5 NAAQS.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution or Use

    This rule is not a ``significant energy action'' as defined in EO 
13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001), 
because it is not likely to have a significant adverse effect on the 
supply, distribution or use of energy.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law No. 104-113, section 12(d) (15 U.S.C. 
272 note), directs EPA to use voluntary consensus standards (VCS) in 
its regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impracticable. VCS are technical standards 
(e.g., materials specifications, test methods, sampling procedures and 
business practices) that are developed or adopted by VCS bodies. The 
NTTAA directs EPA to provide Congress, through OMB, explanations when 
the agency decides not to use available and applicable VCS. This action 
does not involve technical standards. Therefore, EPA did not consider 
the use of any VCS.

J. Executive Order 12898: Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations

    EO 12898 (59 FR 7629, February 16, 1994) establishes federal 
executive policy on environmental justice. Its main provision directs 
federal agencies, to the greatest extent practicable and permitted by 
law, to make environmental justice part of their mission by identifying 
and addressing, as appropriate, disproportionately high and adverse 
human health or environmental effects of their programs, policies and 
activities on minority populations and low-income populations in the 
United States. EPA has determined that this final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
directly affect the level of protection provided to human health or the 
environment. This action is making a finding that the State of 
Wisconsin failed to submit a SIP revision that provides certain basic 
permitting requirements for the PM2.5 NAAQS.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. Section 808 allows the issuing agency to make any rule 
effective ``at such time as the Federal agency promulgating the rule 
determines'' if the agency makes a good cause finding that notice and 
public procedure is impracticable, unnecessary or contrary to the 
public interest. This determination must be supported by a brief 
statement. 5 U.S.C. 808(2). As stated previously, EPA has made such a 
good cause finding, including the reasons therefor, and established an 
effective date of August 11, 2014. EPA submitted a report containing 
this rule and other required information to the U.S. Senate, the U.S. 
House of Representatives, and the Comptroller General of the United 
States prior to publication of the rule in the Federal Register. This 
action is not a ``major rule'' as defined by 5 U.S.C. 804(2). This rule 
will be effective August 11, 2014.

L. Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by October 10, 2014. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposed of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides.

    Dated: July 28, 2014.
Susan Hedman,
Regional Administrator, Region 5.
[FR Doc. 2014-18827 Filed 8-8-14; 8:45 am]
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