[Federal Register Volume 83, Number 96 (Thursday, May 17, 2018)]
[Proposed Rules]
[Pages 22913-22918]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-10458]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2016-0603; FRL-9978-11-Region 5]


Air Plan Approval; Minnesota; PSD Infrastructure SIP Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve elements of a state implementation plan (SIP) submission from 
Minnesota regarding the infrastructure requirements of section 110 of 
the Clean Air Act (CAA) relating to Prevention of Significant 
Deterioration (PSD) for the 1997 ozone, 1997 fine particulate 
(PM2.5), 2006 PM2.5, 2008 lead (Pb), 2008 ozone, 
2010 nitrogen dioxide (NO2), 2010 sulfur dioxide 
(SO2), and 2012 PM2.5 National Ambient Air 
Quality Standards (NAAQS). The Minnesota Pollution Control Agency 
(MPCA) submitted the SIP revision to EPA on October 4, 2016.

DATES: Comments must be received on or before June 18, 2018.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2016-0603 at http://www.regulations.gov, or via email to 
[email protected]. For comments submitted at Regulations.gov, 
follow the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, please contact the person 
identified in the FOR FURTHER INFORMATION CONTACT section. For the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Eric Svingen, Environmental Engineer, 
Attainment Planning and Maintenance Section, Air Programs Branch (AR-
18J), Environmental Protection Agency, Region 5, 77 West Jackson 
Boulevard, Chicago, Illinois 60604, (312) 353-4489, 
[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 this SIP submission?
II. What guidance is EPA using to evaluate this SIP submission?
III. What is the result of EPA's review of this SIP submission?
IV. What action is EPA taking?
V. Statutory and Executive Order Reviews

I. What is the background of this SIP submission?

    This rulemaking proposes to approve a SIP submission from MPCA 
dated October 4, 2016, which addresses infrastructure requirements 
relating to PSD for the 1997 ozone, 1997 PM2.5, 2006 
PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, 2010 
SO2, and 2012 PM2.5 NAAQS.
    The requirement for states to make infrastructure SIP submissions 
arises out of CAA section 110(a)(1). Pursuant to CAA 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. CAA 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 section 110(a)(1) and (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. This 
specific rulemaking is only taking action on the infrastructure SIP 
elements relating to PSD, provided at CAA sections 110(a)(2)(C), 
110(a)(2)(D)(i)(II), 110(a)(2)(D)(ii), and 110(a)(2)(J).
    In previous rulemakings, EPA addressed Minnesota's infrastructure 
obligations under the various NAAQS. On July 13, 2011 (76 FR 41075), 
EPA approved most elements of Minnesota's infrastructure SIP submittal 
for the 1997 ozone and 1997 PM2.5 NAAQS. On October 29, 2012 
(77 FR 65478), EPA approved most elements of Minnesota's infrastructure 
SIP submittal for the 2006 PM2.5 NAAQS. On July 16, 2014 (79 
FR 41439), EPA approved most elements of Minnesota's infrastructure SIP 
submittal for the 2008 Pb NAAQS. Finally, on October 20, 2015 (80 FR 
63436), EPA approved most elements of Minnesota's infrastructure SIP 
submittal for the 2008 ozone, 2010 NO2, 2010 SO2, 
and 2012 PM2.5 NAAQS. However, because Minnesota did not 
have an approved

[[Page 22914]]

PSD program at the time of these rulemakings, EPA generally disapproved 
infrastructure SIP elements relating to PSD in the rulemakings.\1\
---------------------------------------------------------------------------

    \1\ States may develop and implement their own PSD programs, 
which are evaluated against EPA's requirements for each component. 
States may alternatively decline to develop their own program, but 
instead directly implement Federal PSD rules. At the time of the 
infrastructure rulemakings referenced above, Minnesota had chosen to 
implement the Federally promulgated PSD rules at 40 CFR 52.21, and 
EPA had delegated to Minnesota the authority to implement these 
regulations. The Federally promulgated rules satisfied all 
infrastructure requirements relating to PSD. However, as a delegated 
program, these infrastructure elements were not approved into the 
Minnesota SIP.
---------------------------------------------------------------------------

    MPCA's submission dated October 4, 2016, requested that EPA approve 
into its SIP Minnesota Rule 7007.3000, which incorporates by reference 
the Federal PSD rules at 40 CFR 52.21. On July 10, 2017 (82 FR 31741), 
EPA proposed to approve this request, and on September 26, 2017 (82 FR 
44734), EPA finalized approval; the change became effective on October 
26, 2017. Therefore, Minnesota is now implementing its own SIP-approved 
PSD program.
    In this rulemaking, as requested by Minnesota, EPA is proposing to 
find that Minnesota has satisfied all infrastructure SIP elements 
relating to PSD, at CAA sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), 
110(a)(2)(D)(ii), and 110(a)(2)(J), for the 1997 ozone, 1997 
PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 
NO2, 2010 SO2, and 2012 PM2.5 NAAQS.

II. What guidance is EPA using to evaluate this SIP submission?

    EPA's guidance relating to infrastructure SIP submissions can be 
found in a guidance document entitled ``Guidance on SIP Elements 
Required Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and 
PM2.5 \2\ National Ambient Air Quality Standards'' (2007 
Guidance).\3\ Further guidance is provided in a September 13, 2013, 
document entitled ``Guidance on Infrastructure State Implementation 
Plan (SIP) Elements under CAA Sections 110(a)(1) and (2)'' (2013 
Guidance).\4\
---------------------------------------------------------------------------

    \2\ PM2.5 refers to particles with an aerodynamic 
diameter of less than or equal to 2.5 micrometers, oftentimes 
referred to as ``fine'' particles.
    \3\ https://www3.epa.gov/ttn/naaqs/aqmguide/collection/cp2/20071002_harnett_110(a)_sip_guidance.pdf.
    \4\ https://www3.epa.gov/airquality/urbanair/sipstatus/docs/Guidance_on_Infrastructure_SIP_Elements_Multipollutant_FINAL_Sept_2013.pdf.
---------------------------------------------------------------------------

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

    Pursuant to CAA section 110(a), states must provide reasonable 
notice and opportunity for public hearing for all infrastructure SIP 
submissions. MPCA commenced a public comment period on June 20, 2016, 
and closed the public comment period on July 20, 2016. Minnesota 
received three comments, and provided a response to comments in its 
submittal.
    Minnesota provided a synopsis of how its SIP meets each of the 
applicable requirements in CAA sections 110(a)(2)(C), 
110(a)(2)(D)(i)(II), 110(a)(2)(D)(ii), and 110(a)(2)(J) for the 1997 
ozone, 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 
ozone, 2010 NO2, 2010 SO2, and 2012 
PM2.5 NAAQS, as applicable. The following review evaluates 
the state's submission.

A. CAA Section 110(a)(2)(C)

    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 new source review (NSR) 
requirements under PSD and nonattainment NSR (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 the state's submission addressing the 
infrastructure SIP requirements of CAA section 110(a)(2)(C) covers: (i) 
Enforcement of SIP measures; (ii) PSD provisions that explicitly 
identify oxides of nitrogen (NOX) as a precursor to ozone in 
the PSD program; (iii) identification of precursors to PM2.5 
and the identification of PM2.5 and PM10 \5\ 
condensables in the PSD program; (iv) PM2.5 increments in 
the PSD program; and, (v) greenhouse gas (GHG) permitting and the 
``Tailoring Rule.'' \6\
---------------------------------------------------------------------------

    \5\ PM10 refers to particles with an aerodynamic 
diameter of less than or equal to 10 micrometers.
    \6\ 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 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 CAA 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 the 2012 PM2.5 NAAQS.
---------------------------------------------------------------------------

Sub-Element 1: Enforcement of SIP Measures
    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.
    In our previous rulemakings at 76 FR 41075, 77 FR 65478, 79 FR 
41439, and 80 FR 634536, EPA determined that Minnesota has met the 
enforcement of SIP measures requirements of CAA section 110(a)(2)(C) 
with respect to the 1997 ozone, 1997 PM2.5, 2006 
PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, 2010 
SO2, and 2012 PM2.5 NAAQS.
Sub-Element 2: 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 (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 (see 70 FR 
71612 at 71679, 71699-71704). This requirement was codified at 40 CFR 
51.166 and 40 CFR 52.21.
    The Phase 2 Rule required that states submit SIP revisions 
incorporating the requirements of the rule, including the provisions 
specific to NOX as a precursor to ozone, by June 15, 2007 
(see 70 FR 71612 at 71683).
    On September 26, 2017 (82 FR 44734), EPA approved into the 
Minnesota SIP Minn. R. 7007.3000, which incorporates by reference ``as 
amended'' the Federal PSD rules at 40 CFR 52.21. These Federal PSD 
rules fully satisfy the requirements of CAA section 110(a)(2)(C) 
regarding NOX as a precursor to ozone. EPA therefore 
proposes that Minnesota has met this set of infrastructure SIP 
requirements of CAA section 110(a)(2)(C) with respect to the 1997 
ozone, 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 
ozone, 2010 NO2, 2010 SO2, and 2012 
PM2.5 NAAQS.
Sub-Element 3: Identification of Precursors to PM2.5 and the 
Identification of PM2.5 and PM10 Condensables in 
the PSD Program
    On May 16, 2008 (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

[[Page 22915]]

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 this 
rule, EPA identified precursors to PM2.5 for the PSD program 
to be 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 volatile organic compounds (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 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 tons per 
year (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).\7\
---------------------------------------------------------------------------

    \7\ EPA notes that on January 4, 2013, the U.S. Court of Appeals 
for the D.C. 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, EPA 
does not consider the portions of the 2008 NSR 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, EPA's approval of Minnesota's infrastructure SIP as to 
elements relating to PSD, provided at CAA sections 110(a)(2)(C), 
110(a)(2)(D)(i)(II), 110(a)(2)(D)(ii), and 110(a)(2)(J), with 
respect to the PSD requirements promulgated by the 2008 NSR Rule, 
does not conflict with the court's opinion. The Court's decision 
with respect to the nonattainment NSR requirements promulgated by 
the 2008 NSR 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.
---------------------------------------------------------------------------

    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 
to be submitted to EPA by May 16, 2011 (see 73 FR 28321 at 28341).
    On September 26, 2017 (82 FR 44734), EPA approved into the 
Minnesota SIP Minn. R. 7007.3000, which incorporates by reference ``as 
amended'' the Federal PSD rules at 40 CFR 52.21. These Federal PSD 
rules fully satisfy the requirements of CAA section 110(a)(2)(C) 
regarding identification of precursors to PM2.5 and the 
identification of PM2.5 and PM10 condensables. 
EPA therefore proposes that Minnesota has met this set of 
infrastructure SIP requirements of CAA section 110(a)(2)(C) with 
respect to the 1997 ozone, 1997 PM2.5, 2006 
PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, 2010 
SO2, and 2012 PM2.5 NAAQS.
Sub-Element 4: PM2.5 Increments in the PSD Program
    On October 20, 2010 (75 FR 64864), 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).
    On September 26, 2017 (82 FR 44734), EPA approved into the 
Minnesota SIP Minn. R. 7007.3000, which incorporates by reference ``as 
amended'' the Federal PSD rules at 40 CFR 52.21. These Federal PSD 
rules fully satisfy the requirements of CAA section 110(a)(2)(C) 
regarding PM2.5 increments. EPA therefore proposes that 
Minnesota has met this set of infrastructure SIP requirements of CAA 
section 110(a)(2)(C) with respect to the 1997 ozone, 1997 
PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 
NO2, 2010 SO2, and 2012 PM2.5 NAAQS.

[[Page 22916]]

Sub-Element 5: GHG Permitting and the ``Tailoring Rule''

    With respect to CAA sections 110(a)(2)(C) and 110(a)(2)(J), EPA 
interprets the CAA to require each state to make an infrastructure SIP 
submission for a new or revised NAAQS that demonstrates that the air 
agency has a complete PSD permitting program meeting the current 
requirements for all regulated NSR pollutants. The requirements of CAA 
section 110(a)(2)(D)(i)(II) may also be satisfied by demonstrating the 
air agency has a complete PSD permitting program correctly addressing 
all regulated NSR pollutants. Minnesota has shown that it currently has 
a PSD program in place that covers all regulated NSR pollutants, 
including GHGs.
    On June 23, 2014, the United States Supreme Court issued a decision 
addressing the application of PSD permitting requirements to GHG 
emissions. Utility Air Regulatory Group v. Environmental Protection 
Agency, 134 S.Ct. 2427. The Supreme Court said that the EPA may not 
treat GHGs as an air pollutant for purposes of determining whether a 
source is a major source required to obtain a PSD permit. The Court 
also said that the EPA could continue to require that PSD permits, 
otherwise required based on emissions of pollutants other than GHGs, 
contain limitations on GHG emissions based on the application of Best 
Available Control Technology (BACT).
    In accordance with the Supreme Court decision, on April 10, 2015, 
the U.S. Court of Appeals for the District of Columbia Circuit (the 
D.C. Circuit) issued an amended judgment vacating the regulations that 
implemented Step 2 of the EPA's PSD and Title V Greenhouse Gas 
Tailoring Rule, but not the regulations that implement Step 1 of that 
rule. Coalition for Responsible Regulation, Inc. v. EPA, Nos. 09-
1322,10-073,10-1092, and 10-1167 (D.C. Cir., April 10, 2015) (Amended 
Judgement). Step 1 of the Tailoring Rule covers sources that are 
required to obtain a PSD permit based on emissions of pollutants other 
than GHGs. Step 2 applied to sources that emitted only GHGs above the 
thresholds triggering the requirement to obtain a PSD permit. The 
amended judgment preserves, without the need for additional rulemaking 
by the EPA, the application of the BACT requirement to GHG emissions 
from Step 1 or ``anyway'' sources. With respect to Step 2 sources, the 
D.C. Circuit's amended judgment vacated the regulations at issue in the 
litigation, including 40 CFR 51.166(b)(48)(v) and 52.21(b)(49)(v), ``to 
the extent they require a stationary source to obtain a PSD permit if 
greenhouse gases are the only pollutant (i) that the source emits or 
has the potential to emit above the applicable major source thresholds, 
or (ii) for which there is a significant emission increase from a 
modification . . . .'' Id.
    In light of the Supreme Court opinion and subsequent D.C. Circuit 
judgement, EPA took steps to revise Federal PSD rules to be consistent 
with these court decisions. On May 7, 2015 (80 FR 26183), EPA issued a 
final rule that narrowly amended the permit rescission provisions in 
the Federal PSD regulations, and on August 19, 2015 (80 FR 50199), EPA 
issued a final rule that removed several provisions of the PSD and 
title V permitting regulations that were originally promulgated as part 
of the 2010 Tailoring Rule and that were vacated by the D.C. Circuit in 
its April 10, 2015 judgment.
    On September 26, 2017 (82 FR 44734), EPA approved into the 
Minnesota SIP Minn. R. 7007.3000, which incorporates by reference ``as 
amended'' the Federal PSD rules at 40 CFR 52.21. Because EPA's May 7, 
2015, and August 19, 2015, amendments to 40 CFR 52.21 included updates 
to bring the Federal rules into alignment with the Supreme Court 
opinion and the D.C. Circuit's amended judgement, Minnesota is 
currently operating a PSD program that is consistent with both court 
decisions.
    EPA is proposing that Minnesota's SIP is sufficient to satisfy CAA 
sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), and 110(a)(2)(J) with 
respect to GHGs. This is because the PSD permitting program approved by 
EPA into the SIP on September 26, 2017, continues to require that PSD 
permits issued to ``anyway sources'' contain limitations on GHG 
emissions based on the application of BACT.
    For the purposes of infrastructure SIPs, EPA reiterates that NSR 
reform regulations are not within the scope of these actions. 
Therefore, we are not taking action on existing NSR reform regulations 
for Minnesota.
    Certain requirements of CAA section 110(a)(2)(C) overlap with 
requirements of CAA sections 110(a)(2)(D)(i)(II) and 110(a)(2)(J). 
These links will be discussed in the appropriate areas below.
B. CAA Section 110(a)(2)(D)(i)(II)
    CAA 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 Minnesota's satisfaction of the applicable 
infrastructure SIP PSD requirements has been detailed in the discussion 
of CAA section 110(a)(2)(C). EPA further notes that the proposed 
actions in that discussion related to PSD are consistent with the 
proposed actions related to PSD for CAA section 110(a)(2)(D)(i)(II), 
and are reiterated below.
    EPA previously approved revisions to Minnesota's SIP to meet 
certain requirements obligated by the Phase 2 Rule and the 2008 NSR 
Rule. These revisions included provisions that: Explicitly identify 
NOX as a precursor to ozone; explicitly identify 
SO2 and NOX as precursors to PM2.5; 
regulate condensable PM2.5 and PM10 in 
applicability determinations; and, establish emissions limits. EPA also 
previously approved revisions to Minnesota's SIP that incorporate the 
PM2.5 increments and the associated implementation 
regulations, including the major source baseline date, trigger date, 
and level of significance for PM2.5, as required by the 2010 
NSR Rule. Therefore, EPA is proposing that Minnesota's SIP contains 
provisions that adequately address the infrastructure requirements for 
the 1997 ozone, 1997 PM2.5, 2006 PM2.5, 2008 Pb, 
2008 ozone, 2010 NO2, 2010 SO2, and 2012 
PM2.5 NAAQS.
    States also have an obligation to ensure that sources located in 
nonattainment areas do not interfere with a neighboring state's PSD 
program. This requirement can be satisfied through an NNSR program 
consistent with the CAA that addresses any pollutants for which there 
is a designated nonattainment area within the state.
    Minnesota's EPA-approved NNSR regulations are contained in Minn. R. 
7007, and are consistent with 40 CFR 51.165 (60 FR 27411, May 24, 
1995). Therefore, EPA proposes that Minnesota has met all of the 
applicable PSD requirements for the 1997 ozone, 1997 PM2.5, 
2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, 2010 
SO2, and 2012 PM2.5 NAAQS related to CAA section 
110(a)(2)(D)(i)(II).

C. CAA Section 110(a)(2)(D)(ii)

    CAA section 110(a)(2)(D)(ii) requires that each SIP contain 
adequate provisions requiring compliance with the applicable 
requirements of CAA sections 126 and 115 (relating to interstate and 
international pollution abatement, respectively).
    CAA section 126(a) requires new or modified sources to notify 
neighboring

[[Page 22917]]

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. Minnesota has provisions in its EPA-approved PSD program in 
Minn. R. 7007.3000 requiring new or modified sources to notify 
neighboring states of potential negative air quality impacts, and has 
referenced this program as having adequate provisions to meet the 
requirements of CAA section 126(a). EPA is proposing that Minnesota has 
met the infrastructure SIP requirements of CAA section 126(a) with 
respect to the 1997 ozone, 1997 PM2.5, 2006 
PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, 2010 
SO2, and 2012 PM2.5 NAAQS. Minnesota does not 
have any obligations under any other subsection of CAA section 126, nor 
does it have any pending obligations under CAA section 115. EPA, 
therefore, is proposing that Minnesota has met all applicable 
infrastructure SIP requirements of CAA section 110(a)(2)(D)(ii).

D. CAA Section 110(a)(2)(J)

    The evaluation of Minnesota's submission addressing the 
infrastructure SIP requirements of CAA section 110(a)(2)(J) covers: (i) 
Consultation with government officials; (ii) public notification; (iii) 
PSD; and, (iv) visibility protection.
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.
    In our previous rulemakings at 76 FR 41075, 77 FR 65478, 79 FR 
41442, and 80 FR 63450, EPA determined that Minnesota has met the 
consultation with government officials requirements of CAA section 
110(a)(2)(J) with respect to the 1997 ozone, 1997 PM2.5, 
2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, 2010 
SO2, and 2012 PM2.5 NAAQS.
Sub-Element 2: Public Notification
    CAA section 110(a)(2)(J) also requires states to notify the public 
if NAAQS are exceeded in an area and to enhance public awareness of 
measures that can be taken to prevent exceedances.
    In our previous rulemakings at 76 FR 41075, 77 FR 65478, 79 FR 
41442, and 80 FR 63450, EPA determined that Minnesota has met the 
public notification requirements of CAA section 110(a)(2)(J) with 
respect to the 1997 ozone, 1997 PM2.5, 2006 
PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, 2010 
SO2, and 2012 PM2.5 NAAQS.
Sub-Element 3: PSD
    States must meet applicable requirements of CAA section 
110(a)(2)(C) related to PSD. Minnesota's PSD program in the context of 
infrastructure SIPs has already been discussed above in the paragraphs 
addressing CAA sections 110(a)(2)(C) and 110(a)(2)(D)(i)(II), and EPA 
notes that the proposed actions for those CAA sections are consistent 
with the proposed actions for this portion of CAA section 110(a)(2)(J).
    Therefore, EPA proposes that Minnesota has met all of the 
infrastructure SIP requirements for PSD associated with CAA section 
110(a)(2)(D)(J) for the 1997 ozone, 1997 PM2.5, 2006 
PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, 2010 
SO2, and 2012 PM2.5 NAAQS.
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 CAA 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. Therefore, no new visibility obligation is ``triggered'' 
under CAA section 110(a)(2)(J) when a new NAAQS becomes effective. In 
other words, the visibility protection requirements of CAA section 
110(a)(2)(J) are not germane to infrastructure SIPs.

IV. What action is EPA taking?

    EPA is proposing to approve a submission from Minnesota certifying 
that its current SIP is sufficient to meet the infrastructure SIP 
requirements relating to PSD, at CAA sections 110(a)(2)(C), 
110(a)(2)(D)(i)(II), 110(a)(2)(D)(ii), and 110(a)(2)(J), for the 1997 
ozone, 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 
ozone, 2010 NO2, 2010 SO2, and 2012 
PM2.5 NAAQS.

V. 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);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
     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, 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).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations,

[[Page 22918]]

Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: May 4, 2018.
Cathy Stepp,
Regional Administrator, Region 5.
[FR Doc. 2018-10458 Filed 5-16-18; 8:45 am]
 BILLING CODE 6560-50-P