[Federal Register Volume 80, Number 175 (Thursday, September 10, 2015)]
[Proposed Rules]
[Pages 54468-54471]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-22863]



40 CFR Part 52

[EPA-R05-OAR-2009-0805; FRL-9933-66-Region 5]

Wisconsin; Disapproval of Infrastructure SIP With Respect to 
Oxides of Nitrogen as a Precursor to Ozone Provisions for the 2006 

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.


SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
disapprove an element of State Implementation Plan (SIP) submissions 
from Wisconsin regarding the infrastructure requirements of section 110 
of the Clean Air Act (CAA) for the 2006 fine particulate matter 
(PM2.5) National Ambient Air Quality Standard (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. This action 
pertains specifically to an infrastructure requirement for states to 
correctly address oxides of nitrogen (NOX) as a precursor to 
ozone in their respective prevention of significant deterioration (PSD) 

DATES: Comments must be received on or before October 13, 2015.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2009-0805 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

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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-2009-
0805. 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 Sarah Arra, Environmental 
Scientist, at (312) 886-9401, before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Sarah Arra, Environmental Scientist, 
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) 886-9401, [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 this SIP submission?
III. What is EPA's review of this SIP submission?
IV. What action is EPA taking?
V. 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 your estimate in sufficient detail to allow for it to be 
    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 

II. What is the background of this SIP submission?

    This rulemaking addresses a January 24, 2011, submission 
supplemented on June 29, 2012, from the Wisconsin Department of Natural 
Resources (WDNR) intended to address all applicable infrastructure 
requirements for the 2006 PM2.5 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.
    This specific rulemaking is only taking action on a specific 
requirement of PSD, NOX as a precursor to ozone, which is a 
component under the infrastructure elements described in CAA sections 
110(a)(2)(C), (D)(i)(II), and (J). The majority of the other 
infrastructure elements were approved in an October 29, 2012 (77 FR 
65478) rulemaking.

III. What is EPA's review of this SIP submission?

    On September 13, 2013, EPA issued ``Guidance on Infrastructure 
State Implementation Plan (SIP) Elements under Clean Air Act Sections 
110(a)(1) and 110(a)(2)'' (2013 Memo). As noted in the 2013 Memo, 
pursuant to CAA section 110(a), states must provide reasonable notice 
and opportunity for public hearing for all infrastructure SIP 
submissions. WDNR provided public comment opportunities on both its 
January 24, 2011 and October 29, 2012 submittals. EPA is also 
soliciting comments on the specific requirement we are evaluating in 
this proposed rulemaking. WDNR provided a detailed synopsis of how 
various components of its SIP meet each of the applicable requirements 
in section 110(a)(2) for the 2006 PM2.5 NAAQS, as 
applicable. The following review only evaluates the state's submissions 
for 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

[[Page 54470]]

(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.
    The Phase 2 Rule required that states submit SIP revisions 
incorporating the requirements of the rule, including those identifying 
NOX as a precursor to ozone, by June 15, 2007 (see 70 FR 
71612 at 71683, November 29, 2005).
    During the comment period following the proposed approval for the 
infrastructure requirements of the 1997 ozone and PM2.5 
NAAQS (76 FR 23757), two commenters observed that although EPA proposed 
to approve Wisconsin's infrastructure SIP as meeting the correct 
requirements for NOx as a precursor to ozone in the State's PSD 
program, Wisconsin's PSD SIP does not contain the most recent PSD 
program revisions required by EPA for this purpose. A subsequent review 
of Wisconsin's PSD SIP indicated that the commenters were correct in 
their assertion. Specifically, Wisconsin had not made necessary 
revisions to its PSD program with respect to the identification of 
NOX as a precursor to ozone, consistent with the explicit 
requirements of the Phase 2 Rule. This led EPA to disapprove 
Wisconsin's infrastructure SIP in June 2012 for this narrow portion of 
section 110(a)(2)(C) with respect to the 1997 ozone and 
PM2.5 (77 FR 35870).
    This final disapproval triggered the requirement under section 
110(c) that EPA promulgate a Federal Implementation Plan (FIP) no later 
than two years from the effective date of the disapproval unless the 
State corrects the deficiency, and the Administrator approves the plan 
revision before the Administrator promulgates such FIP. Wisconsin has 
taken multiple steps to address NOX as a precursor to ozone 
in its PSD rules, starting in June 2012 with a note in rule. The state 
followed up with rule changes, effective August 2014, and SIP approved 
on October 6, 2014. (79 FR 60064) Prior to the effective date of the 
August 2014 rules, four additional areas requiring updated language 
were identified by EPA. Wisconsin was too far in the rule process to 
add additional changes at that point. Wisconsin immediately started a 
new rule package to address these additional areas, but these changes 
will not be effective until approximately August 2016 due to the length 
of the administrative rule process in Wisconsin.
    In our initial rulemaking on Wisconsin's 2006 PM2.5 
infrastructure SIP, we did not take action on this provision because of 
our previous disapproval. However, a proposed consent decree \1\ 
between the Sierra Club and EPA requires EPA to take action on this 
portion of Wisconsin's submittal by November 30, 2015. Today's 
disapproval does not trigger a new FIP clock because the missing 
provisions are the same as those disapproved in the 1997 ozone and 
PM2.5 action. The evaluation of a state's PSD program is a 
requirement under the elements described in section 110 (a)(2)(C) and 
(J), and the most common way to comply with section 
110(a)(2)(D)(i)(II). Therefore, EPA is proposing to narrowly disapprove 
the PSD provision of NOX as a precursor to ozone in the PSD 
portion of these three elements.

    \1\ Case 3:12-cv-06472-CRB, filed on January 21, 2015.

IV. What action is EPA taking?

    EPA is proposing to narrowly disapprove portions of a submission 
from Wisconsin certifying that its current SIP is sufficient to meet 
required infrastructure elements. Specifically, EPA is proposing to 
disapprove the NOX as a precursor to ozone provisions for 
the PSD portions of infrastructure elements under CAA sections 
110(a)(2)(C), (D)(i)(II), and (J) for the 2006 PM2.5 NAAQS.

 V. Statutory and Executive Order Reviews

Executive Order 12866: Regulatory Planning and Review

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

Paperwork Reduction Act

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

Regulatory Flexibility Act

    This action merely proposes to disapprove state law as not meeting 
Federal requirements and imposes no additional requirements beyond 
those imposed by state law. Accordingly, the Administrator certifies 
that this proposed rule would not have a significant economic impact on 
a substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.).

Unfunded Mandates Reform Act

    Because this rulemaking proposes to disapprove pre-existing 
requirements under state law and does not impose any additional 
enforceable duty beyond that required by state law, it does not contain 
any unfunded mandate or significantly or uniquely affect small 
governments, as described in the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4).

Executive Order 13132: Federalism

    This action also does not have Federalism implications because it 
does not have substantial direct effects on the states, on the 
relationship between the national government and the states, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132 (64 FR 43255, August 
10, 1999). This action merely proposes to disapprove a state rule, and 
does not alter the relationship or the distribution of power and 
responsibilities established in the CAA.

Executive Order 13175: Consultation and Coordination With Indian Tribal 

    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the proposed rule does not have tribal implications and would 
not impose substantial direct costs on tribal governments or preempt 
tribal law as specified by Executive Order 13175 (65 FR 67249, November 
9, 2000).

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

    This proposed rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it proposes to 
disapprove a state rule.

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

    Because it is not a ``significant regulatory action'' under 
Executive Order 12866 or a ``significant energy action,'' this action 
is also not subject to Executive Order 13211, ``Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use'' (66 FR 28355, May 22, 2001).

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National Technology Transfer Advancement Act

    In reviewing state submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. In this 
context, in the absence of a prior existing requirement for the state 
to use voluntary consensus standards (VCS), EPA has no authority to 
disapprove a state submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a state 
submission, to use VCS in place of a state submission that otherwise 
satisfies the provisions of the CAA. Thus, the requirements of section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(15 U.S.C. 272 note) do not apply.

List of Subjects in 40 CFR Part 52

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

    Dated: August 28, 2015.
Susan Hedman,
Regional Administrator, Region 5.
[FR Doc. 2015-22863 Filed 9-9-15; 8:45 am]