[Federal Register Volume 82, Number 24 (Tuesday, February 7, 2017)]
[Rules and Regulations]
[Pages 9515-9519]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-02530]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2016-0134; FRL-9957-58-Region 5]


Air Plan Approval; Wisconsin; NOX as a Precursor to Ozone, PM2.5 
Increment Rules and PSD Infrastructure SIP Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a 
revision to Wisconsin's state implementation plan (SIP), revising 
portions of the State's Prevention of Significant Deterioration (PSD) 
and ambient air quality programs to address deficiencies identified in 
EPA's previous narrow infrastructure SIP disapprovals and Finding of 
Failure to Submit (FFS). This SIP revision request is consistent with 
the Federal PSD rules and addresses the required elements of the fine 
particulate matter (PM2.5) PSD Increments, Significant 
Impact Levels (SILs) and Significant Monitoring Concentration (SMC) 
Rule. EPA is also approving elements of SIP submissions from Wisconsin 
regarding PSD infrastructure requirements of section 110 of the Clean 
Air Act (CAA) for the 1997 PM2.5, 1997 ozone, 2006 
PM2.5, 2008 lead, 2008 ozone, 2010 nitrogen dioxide 
(NO2), 2010 sulfur dioxide (SO2), and 2012 
PM2.5 National Ambient Air Quality Standards (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.

DATES: This final rule is effective on March 9, 2017.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2016-0134. All documents in the docket are listed on

[[Page 9516]]

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

FOR FURTHER INFORMATION CONTACT: Andrea Morgan, Environmental Engineer, 
Air Permitting 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: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This supplementary information 
section is arranged as follows:

I. What is the background of these SIP submissions?
II. What action did EPA propose on the SIP submissions?
III. What comments were received on the proposed rulemaking?
IV. What action is EPA taking?
V. Incorporation by Reference
VI. Statutory and Executive Order Reviews

I. What is the background of these SIP submissions?

    On August 8, 2016, the Wisconsin Department of Natural Resources 
(WDNR) submitted a SIP revision request to EPA to revise portions of 
its PSD and ambient air quality programs to address deficiencies 
identified in EPA's previous narrow infrastructure SIP disapprovals and 
FFS. Final approval of this SIP revision request will be consistent 
with the Federal PSD requirements and will address the required 
elements of the PM2.5 PSD Increments, SILs and SMC Rule. 
Wisconsin submitted revisions to its rules NR 404 and 405 of the 
Wisconsin Administrative Code. The submittal requests that EPA approve 
the following revisions to Wisconsin's SIP: (1) Amend NR 
404.05(2)(intro); (2) create NR 404.05(2)(am); (3) amend NR 
404.05(3)(intro); (4) create NR 404.05(3)(am); (5) amend NR 
404.05(4)(intro); (6) create NR 404.05(4)(am); (7) amend NR 405.02(3), 
(21)(a), and (21m)(a); (8) create NR 405.02(21m)(c); (9) amend NR 
405.02(22)(b) and (22m)(a)1. and (b)1.; (10) create NR 
405.02(22m)(a)3.; (11) amend NR 405.02(27)(a)6.; (12) amend NR 
405.07(8)(a)3m; (13) create NR 405.07(8)(a)3m (Note); and (14) amend NR 
405.07(8)(a)5.(Note).
    WDNR also requested that this SIP revision supplement the PSD 
portions of its previously submitted infrastructure submittals, 
including 1997 PM2.5, 1997 ozone, 2006 PM2.5, 
2008 lead, 2008 ozone, 2010 NO2, 2010 SO2, and 
2012 PM2.5.

A. PSD Rule Revisions

1. PM2.5 Increments
    To implement the PM2.5 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, SILs and 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. This rule requires that the state 
submit revisions to its SIP, including the identification of precursors 
for PM2.5, the significant emissions rates for 
PM2.5 and the requirement to include emissions which may 
condense to form particulate matter at ambient temperatures, known as 
condensables, in permitting decisions. EPA published a final approval 
of a revision to Wisconsin's SIP on October 16, 2014, (79 FR 62008), 
which included all of the required elements of the 2008 NSR 
Implementation Rule.
    The PM2.5 PSD Increments, SILs and 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. On August 11, 2014, EPA published a finding that Wisconsin 
had failed to submit the required elements of the PM2.5 PSD 
Increments, SILs and SMC Rule (79 FR 46703).
    The PM2.5 PSD Increments, SILs and SMC Rule also allows 
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 (Court) granted a request from EPA to vacate and remand to 
EPA the portions of the PM2.5 PSD Increments, SILs and 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 parts of the PM2.5 PSD Increments, SILs and 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, 463-69. On December 
9, 2013, EPA issued a good cause final rule formally removing the 
affected SILs and replacing the SMC with a numeric value of 0 
micrograms per cubic meter ([micro]g/m\3\) and a note that no exemption 
is available with regard to PM2.5. See 78 FR 73698. As a 
result, SIP submittals could no longer include the vacated 
PM2.5 SILs at 40 CFR 51.166(k)(2) and 52.21(k)(2) and the 
PM2.5 SMC must be revised to 0 [micro]g/m\3\, consistent 
with 40 CFR 51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c).
2. Ozone
    On November 29, 2005, EPA published (70 FR 71612) in the Federal 
Register the ``Final Rule to Implement the 8-Hour Ozone National 
Ambient Air Quality Standard--Phase 2''. Part of this rule established, 
among other requirements, oxides of nitrogen (NOX) as a 
precursor to ozone. The final rule became effective on January 30, 
2006.
    On October 6, 2014, EPA finalized approval of revisions to 
Wisconsin's SIP that included the identification of NOX as a 
precursor to ozone in the definition of regulated NSR pollutant. See 79 
FR 60064.

B. Infrastructure SIP Submittals

    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,

[[Page 9517]]

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 the PSD elements 
of the Wisconsin infrastructure submittals. Separate action has been or 
will be taken on the non-PSD infrastructure elements in separate 
rulemakings. The infrastructure elements for PSD are found in CAA 
110(a)(2)(C), 110(a)(2)(D), and 110(a)(2)(J) and will be discussed in 
detail below. For further discussion on the background of 
infrastructure submittals, see 77 FR 45992, August 2, 2012.

II. What action did EPA propose on the SIP submissions?

    On September 30, 2016 (81 FR 67261), EPA proposed approval of a SIP 
revision from WDNR requesting EPA to revise portions of its PSD and 
ambient air quality programs to address PM2.5 increment 
requirements and incorporating NOX as an ozone precursor. 
EPA proposed that these revisions were made to meet EPA's requirements 
for Wisconsin's PSD and NSR program and are consistent with Federal 
regulations.
    EPA proposed that the revisions pertaining to PM2.5 
increments are consistent with Federal regulations and fully address 
the requirements of the PM2.5 PSD Increments, SILs, and SMC 
Rule. EPA also proposed that revisions pertaining to NOX as 
a precursor to ozone, in conjunction with EPA's October 6, 2014 
approval (79 FR 60064), will address all of the PSD requirements of the 
``Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality 
Standard--Phase 2''.
    WDNR also requested that this SIP revision supplement the PSD 
portions of its previously submitted infrastructure submittals. EPA 
proposed that based on the approval of the PSD related SIP revisions 
mentioned above and previously approved SIP revisions (see 79 FR 62008, 
October 16, 2014), EPA is able to fully approve the PSD related 
infrastructure requirements found in CAA sections 110(a)(2)(C), 
(D)(i)(II), and (J) for Wisconsin's 1997 PM2.5, 1997 ozone, 
2006 PM2.5, 2008 lead, 2008 ozone, 2010 NO2, 2010 
SO2, and 2012 PM2.5 NAAQS submittals.

III. What comments were received on the proposed rulemaking?

    The comment period for the proposed action associated with today's 
rulemaking (81 FR 67261) closed on October 31, 2016. EPA received two 
supportive comments.

IV. What action is EPA taking?

    EPA is approving revisions to Wisconsin's SIP that implement the 
PM2.5 increment requirements and also incorporate 
NOX as an ozone precursor. These revisions were made to meet 
EPA's requirements for Wisconsin's PSD and NSR program and are 
consistent with Federal regulations. Specifically, EPA is approving the 
following:

(i) NR 404.05(2)(intro) and (am)
(ii) NR 404.05(3)(intro) and (am)
(iii) NR 404.05(4)(intro) and (am)
(iv) NR 405.02(3) and (21)(a)
(v) NR 405.02(21m)(a) and (c)
(vi) NR 405.02(22)(b)
(vii) NR 405.02(22m)(a)1. and 3., and (b)1.
(viii) NR 405.02(27)(a)6.
(ix) NR 405.07(8)(a)3m and 3m(Note)
(x) NR 405.07(8)(a)5.(Note)

    The revisions pertaining to PM2.5 increments will fully 
address the requirements of the PM2.5 PSD Increments, SILs, 
and SMC Rule and the deficiencies identified in EPA's August 11, 2014, 
Finding of Failure to Submit. The revisions pertaining to 
NOX as a precursor to ozone will, in conjunction with EPA's 
October 6, 2014 approval, address all of the PSD requirements of the 
``Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality 
Standard--Phase 2'' and stops the Federal Implementation Plan (FIP) 
clock triggered by the FFS mentioned above (79 FR 46704, August 11, 
2014).
    EPA is also approving the PSD related infrastructure requirements 
found in CAA sections 110(a)(2)(C), (D)(i)(II), and (J) for Wisconsin's 
1997 PM2.5, 1997 ozone, 2006 PM2.5, 2008 lead, 
2008 ozone, 2010 NO2, 2010 SO2, and 2012 
PM2.5 NAAQS submittals. This action stops the FIP clock 
triggered by the disapproval of NOX as a precursor to ozone 
for the PSD provisions for the 1997 ozone and PM2.5 
infrastructure SIPs (77 FR 35870, June 15, 2012). This action requires 
significant revisions to existing portions of 40 CFR 52.2591. Because 
there will already be substantial revisions, EPA will also be revising 
additional portions of 40 CFR 52.2591 that are not related to PSD for 
clarification or consolidation purposes only. These additional edits 
will not change the meaning or intent of the original language.

V. Incorporation by Reference

    In this rule, EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, EPA is finalizing the incorporation by reference of the Wisconsin 
Regulations described in the amendments to 40 CFR part 52 set forth 
below. EPA has made, and will continue to make, these documents 
generally available through www.regulations.gov and at the EPA Region 5 
Office (please contact the person identified in the ``For Further 
Information Contact'' section of this preamble for more information).

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 Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     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

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methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
    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 rule does not have tribal implications and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by April 10, 2017. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

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

    Dated: December 13, 2016.
Robert A. Kaplan,
Acting Regional Administrator, Region 5.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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


0
2. Section 52.2570 is amended by adding paragraph (c)(135) to read as 
follows:


Sec.  52.2570   Identification of plan.

* * * * *
    (c) * * *
    (135) On August 8, 2016, WDNR submitted a request to revise 
portions of its Prevention of Significant Deterioration (PSD)and 
ambient air quality programs to address the required elements of the 
fine particulate matter (PM2.5) PSD Increments, Significant 
Impact Levels (SILs) and Significant Monitoring Concentration (SMC) 
Rule and the Final Rule to Implement the 8-Hour Ozone National Ambient 
Air Quality Standard--Phase 2. Wisconsin submitted revisions to its 
rules NR 404 and 405 of the Wisconsin Administrative Code.
    (i) Incorporation by reference.
    (A) Wisconsin Administrative Code, NR 404.05 Ambient Air 
Increments. NR 404.05(2) introductory text; NR 404.05(2)(am); NR 
404.05(3) introductory text; NR 404.05(3)(am); NR 404.05(4) 
introductory text; and NR 404.05(4)(am), as published in the Register, 
July 2016, No. 727, effective August 1, 2016.
    (B) Wisconsin Administrative Code, NR 405.02 Definitions. NR 
405.02(3); NR 405.02(21)(a); NR 405.02(21m), except (b); NR 
405.02(22)(b); NR 405.02(22m)(a)1. and 3. and (b)1.; and NR 
405.02(27)(a)6., as published in the Register, July 2016, No. 727, 
effective August 1, 2016.
    (C) Wisconsin Administrative Code, NR 405.07 Review of major 
stationary sources and major modifications -- source applicability and 
exemptions. NR 405.07(8)(a)3m; 405.07(8)(a)3m. Note; and NR 
405.07(8)(a)5. Note, as published in the Register, July 2016, No. 727, 
effective August 1, 2016.

0
3. Section 52.2591 is revised to read as follows:


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

    (a) Approval. In a December 12, 2007 submittal, supplemented on 
January 24, 2011, March 28, 2011, July 2, 2015, and August 8, 2016, 
Wisconsin certified that the State has satisfied the infrastructure SIP 
requirements of section 110(a)(2)(A) through (C), (D)(ii), (E) through 
(H), and (J) through (M) for the 1997 8-hour ozone NAAQS.
    (b) Approval. In a December 12, 2007 submittal, supplemented on 
January 24, 2011, March 28, 2011, July 2, 2015, and August 8, 2016, 
Wisconsin certified that the State has satisfied the infrastructure SIP 
requirements of section 110(a)(2)(A) through (C), (D)(ii), (E) through 
(H), and (J) through (M) for the 1997 PM2.5 NAAQS.
    (c) Approval. In a January 24, 2011, submittal, supplemented on 
March 28, 2011, June 29, 2012, July 2, 2015, and August 8, 2016, 
Wisconsin certified that the State has satisfied the infrastructure SIP 
requirements of section 110(a)(2)(A) through (H), and (J) through (M) 
for the 2006 24-hour PM2.5 NAAQS. We are not finalizing 
action on (D)(i)(I) and will address these requirements in a separate 
action.
    (d) Approval. In a July 26, 2012, submittal, supplemented July 2, 
2015, and August 8, 2016, Wisconsin certified that the State has 
satisfied the infrastructure SIP requirements of section 110(a)(2)(A) 
through (H), and (J) through (M) for the 2008 lead (Pb) NAAQS.
    (e) Approval and Disapproval. In a June 20, 2013, submittal with a 
January 28, 2015, clarification, supplemented July 2, 2015, and August 
8, 2016, Wisconsin certified that the state has satisfied the 
infrastructure SIP requirements of section 110(a)(2)(A) through (H), 
and (J) through (M) for the 2008 ozone NAAQS. For 110(a)(2)(D)(i)(I), 
we are approving prong one and disapproving prong two.
    (f) Approval. In a June 20, 2013, submission with a January 28, 
2015, clarification, supplemented July 2, 2015, and August 8, 2016, 
Wisconsin certified that the state has satisfied the infrastructure SIP 
requirements of section 110(a)(2)(A) through (H), and (J) through (M) 
for the 2010 nitrogen dioxide (NO2) NAAQS.
    (g) Approval. In a June 20, 2013, submission with a January 28, 
2015, clarification, supplemented July 2, 2015, and August 8, 2016, 
Wisconsin certified that the state has satisfied the infrastructure SIP 
requirements of section 110(a)(2)(A) through (H), and (J) through (M) 
for the 2010 sulfur dioxide (SO2) NAAQS. We are not taking 
action on the transport provisions in section 110(a)(2)(D)(i)(I), and 
will address these requirements in a separate action.
    (h) Approval. In a July 13, 2015, submission, supplemented August 
8, 2016, WDNR certified that the state has satisfied the infrastructure 
SIP requirements of section 110(a)(2)(A) through (H), and (J) through 
(M) for the 2012 PM2.5 NAAQS. We are not taking action on 
the transport provisions in section 110(a)(2)(D)(i)(I), and the

[[Page 9519]]

stationary source monitoring and reporting requirements of section 
110(a)(2)(F). We will address these requirements in a separate action.

[FR Doc. 2017-02530 Filed 2-6-17; 8:45 am]
 BILLING CODE 6560-50-P