[Federal Register Volume 84, Number 29 (Tuesday, February 12, 2019)]
[Proposed Rules]
[Pages 3376-3381]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-02055]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2018-0569; FRL-9989-24-Region 5]


Air Plan Approval; Wisconsin; Nonattainment New Source Review 
Requirements for the 2008 8-Hour Ozone Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve, as a State Implementation Plan (SIP) revision, Wisconsin's 
certification that its SIP satisfies the nonattainment new source 
review (NNSR) requirements of the Clean Air Act (CAA) for the 2008 
ozone National Ambient Air Quality

[[Page 3377]]

Standard (NAAQS). The State's submittal is in response to EPA's 
February 3 and December 11, 2017 Findings of Failure to Submit (FFS) 
final rule, which found that Wisconsin failed to timely submit certain 
SIP elements to satisfy CAA requirements for implementation of the 2008 
ozone NAAQS in nonattainment areas. EPA is proposing to approve this 
revision in accordance with the requirements of the CAA. Approval of 
the NNSR requirements would address EPA's finding that Wisconsin failed 
to submit moderate ozone NNSR requirements and turn off the sanctions 
and Federal Implementation Plan (FIP) clock.

DATES: Comments must be received on or before March 14, 2019.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-RO5-
OAR-2018-0569, 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: Rachel Rineheart, Environmental 
Engineer, Air Permits Section, Air Programs Branch (AR-18J), U.S. 
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 
Chicago, Illinois 60604, (312) 886-7017, [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 for This Action?
II. What is EPA's Evaluation of Wisconsin's Submittal?
III. What Action Is EPA Proposing?
IV. Statutory and Executive Order Reviews

I. What is the background for this action?

A. Background on the 2008 Ozone Standard

    On March 27, 2008, EPA promulgated a revised 8-hour ozone NAAQS of 
0.075 parts per million (ppm).\1\ Promulgation of a revised NAAQS 
triggers a requirement for EPA to designate areas of the country as 
nonattainment, attainment, or unclassifiable for the standard. For the 
ozone NAAQS, this also involves classifying any nonattainment areas at 
the time of designation.\2\ Ozone nonattainment areas are classified 
based on the severity of their ozone levels (as determined based on the 
area's ``design value,'' which represents air quality in the area for 
the most recent 3 years). The classifications for ozone nonattainment 
areas are marginal, moderate, serious, severe, and extreme.\3\
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    \1\ 73 FR 16436.
    \2\ CAA sections 107(d)(1) and 181(a)(1).
    \3\ CAA section 181(a)(1).
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    Areas that EPA designates nonattainment for the ozone NAAQS are 
subject to the general nonattainment area planning requirements of CAA 
section 172 and also to the ozone-specific planning requirements of CAA 
section 182. Ozone nonattainment areas in the lower classification 
levels have fewer and/or less stringent mandatory air quality planning 
and control requirements than those in higher classifications. For 
marginal areas, a state is required to submit a baseline emissions 
inventory, adopt provisions into the SIP requiring emissions statements 
from stationary sources, and implement a NNSR program for the relevant 
ozone NAAQS.\4\ For moderate areas, a state needs to comply with the 
marginal area requirements, plus additional moderate area requirements, 
including the requirement to submit a modeled demonstration that the 
area will attain the NAAQS as expeditiously as practicable but no later 
than 6 years after designation, the requirement to submit a reasonable 
further progress (RFP) plan, the requirement to adopt and implement 
certain emissions controls, such as RACT and I/M, and the requirement 
for greater emissions offsets for new or modified major stationary 
sources under the state's NNSR program.\5\
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    \4\ CAA section 182(a).
    \5\ CAA section 182(b).
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B. Background on the Wisconsin Ozone Nonattainment Areas

    On June 11, 2012,\6\ EPA designated the Chicago area as a marginal 
nonattainment area for the 2008 ozone NAAQS. The Chicago area includes 
Cook, DuPage, Kane, Lake, McHenry, and Will Counties and part of Grundy 
and Kendall Counties in Illinois; Lake and Porter Counties in Indiana; 
and part of Kenosha County in Wisconsin. On May 4, 2016,\7\ pursuant to 
section 18l(b)(2) of the CAA, EPA determined that the Chicago area 
failed to attain the 2008 ozone NAAQS by the July 20, 2015 marginal 
area attainment deadline and thus reclassified the area from marginal 
to moderate nonattainment. In that action, EPA established January 1, 
2017, as the due date for all moderate area nonattainment plan SIP 
requirements applicable to newly reclassified areas. Pleasant Prairie 
and Somers townships in Kenosha County are part of the Chicago area 
nonattainment area. The remainder of Kenosha County is designated as 
unclassifiable/attainment.
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    \6\ CAA section 182(b).
    \7\ 81 FR 26697.
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    On May 21, 2012,\8\ EPA designated Sheboygan County in Wisconsin as 
a marginal nonattainment area for the 2008 ozone NAAQS. On December 19, 
2016,\9\ pursuant to section 18l(b) of the CAA, EPA determined that 
Sheboygan County failed to attain the 2008 ozone NAAQS by the July 20, 
2016 marginal area attainment deadline and thus reclassified the area 
from marginal to moderate nonattainment. In that action, EPA 
established January 1, 2017, as the due date for all moderate area 
nonattainment plan SIP requirements applicable to newly reclassified 
areas.
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    \8\ 77 FR 30088 (May 21, 2012).
    \9\ 81 FR 91841 (December 19, 2016).
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    Effective March 6, 2017, EPA found that 15 states and the District 
of Columbia failed to submit SIP revisions in a timely manner to 
satisfy certain requirements for the 2008 ozone NAAQS.\10\ This finding 
established certain deadlines for the imposition of sanctions if a 
state does not submit a timely SIP revision addressing the requirements 
for which the finding was made and for EPA to promulgate a FIP to 
address any outstanding SIP requirements. As part of that action, EPA 
made a finding that Wisconsin failed to submit a marginal NNSR SIP for 
the Wisconsin portion of the Chicago area and for Sheboygan County.
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    \10\ 82 FR 9158 (February 3, 2017).

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[[Page 3378]]

II. What is EPA's evaluation of Wisconsin's submittal?

    On July 19, 2018, Wisconsin submitted a SIP revision requesting EPA 
approve Wisconsin's certification that its existing SIP-approved NNSR 
regulations fully satisfy the NNSR requirements set forth in 40 CFR 
51.165 for both marginal and moderate ozone nonattainment areas for the 
2008 ozone NAAQS. The NNSR certification addresses the deficiency that 
was the basis for the March 6, 2017 finding; therefore, approval of the 
certification would turn off both the sanctions and FIP clocks for the 
Wisconsin portion of the Chicago area and for Sheboygan County.

A. Background

    CAA sections ll0(a)(2) and 172(c)(5) require permits for the 
construction of new or modified major stationary sources anywhere in a 
nonattainment area in accordance with CAA section 173. CAA section 182 
contains additional requirements applicable to ozone nonattainment 
areas. NNSR requirements are codified at 40 CFR 51.165.
    On March 6, 2017, EPA found that Wisconsin failed to submit 
moderate ozone NNSR rules for the Wisconsin portions of the Chicago 
area 2008 ozone nonattainment areas and for the Sheboygan County 2008 
ozone nonattainment area. On July 19, 2018, Wisconsin submitted its 
NNSR certification to address NNSR requirements for marginal and 
moderate ozone nonattainment areas.
    Wisconsin has certified that specific sections of its NNSR rules at 
NR 408 continue to meet the NNSR program requirements for ozone 
nonattainment areas under the 2008 ozone NAAQS. The table below 
provides the sections of Wisconsin's NNSR rule corresponding to the 
relevant requirements at 40 CFR 51.165. NR 408 was originally approved 
into the SIP effective February 17, 1995,\11\ with revisions 
subsequently approved into the SIP effective January 16, 2009.\12\ Each 
requirement identified in Wisconsin's certification has not been 
revised since EPA last approved it. The following table lists the 
specific provisions of Wisconsin's NNSR rules that address the required 
elements of the Federal NNSR rules:
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    \11\ See 60 FR 3538.
    \12\ See 73 FR 76560.

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              Federal rule                        Wisconsin rule
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40 CFR 51.165(a)(1)(iv)(A)(1)(i)-(iv)..  NR 408.02(21), NR
                                          408.02(21)(a)(1)(b), (C), (d)
                                          and (e).
40 CFR 51.165(a)(1)(iv)(A)(2)..........  NR 408.02(21)(b), NR
                                          408.02(21)(b)(1)(a)-(c), and
                                          NR 408.02(21)(b)(2)-(4).
40 CFR 51.165(a)(1)(iv)(A)(3)..........  NR 408.02(21)(a)(3).
40 CFR 51.165(a)(1)(v)(E)..............  NR 408.02(20)(c).
40 CFR 51.165(a)(1)(v)(F)..............  NR 408.02(20)(a).
40 CFR 51.165(a)(1)(x)(A)..............  NR 408.02(32)(a) and NR
                                          408.02(32)(a)(6).
40 CFR 51.165(a)(1)(x)(B)..............  NR 408.02(32)(c).
40 CFR 51.165(a)(1)(x)(C)..............  NR 408.02(32)(f) and NR
                                          408.03(5).
40 CFR 51.165(a)(1)(x)(E)..............  NR 408.02(32)(d).
40 CFR 51.165(a)(3)(ii)(C)(1)..........  NR 408.06(7)(a), NR
                                          408.06(7)(a)(1), and NR
                                          408.06(7)(a)(4).
40 CFR 51.165(a)(3)(ii)(C)(2)..........  NR 408.06(7)(b).
40 CFR 51.165(a)(8)....................  NR 408.03(5).
40 CFR 51.165(a)(9)(ii)-(iv)...........  NR 408.06(4)(a)-(e), NR
                                          408.06(5), and NR
                                          408.05(2)(b).
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B. Analysis of Wisconsin's NNSR Rules

    For the following reasons, we are proposing to approve Wisconsin's 
certification that NR 408 is consistent with 40 CFR 51.165 and meets 
the requirements of CAA sections 172(c)(5), 173, 110(a)(2), 182(a)(4), 
and 182(b)(5) under the 2008 ozone standard for the Wisconsin portion 
of the Chicago area ozone nonattainment area and for Sheboygan County. 
Approval of Wisconsin's NNSR certification would address the deficiency 
that was the basis for the March 6, 2017 finding. Therefore, approval 
of this SIP revision would turn off both the sanctions and FIP clocks 
for the Wisconsin 2008 ozone nonattainment areas.
1. Major Source Thresholds for Ozone--40 CFR 51.165(a)(1)(iv)(A)(1)(i)-
(iv) and (2)
    The major source thresholds for both volatile organic compounds 
(VOC) and nitrogen oxides (NOX) (i.e. ozone precursors) are 
defined in 40 CFR 51.165(a)(1)(iv)(A)(1)(i)-(iv) and (2). The 
applicable thresholds vary depending on the classification of the ozone 
nonattainment area. For marginal and moderate ozone nonattainment 
areas, a major stationary source of ozone is a source that emits, or 
has the potential to emit, 100 tons per year of VOC or NOX. 
Different emissions thresholds apply for Serious, Severe and Extreme 
ozone nonattainment areas and for areas located in an ozone transport 
region (OTR).
    Wisconsin has certified that the Federal requirements for major 
source thresholds for VOC and NOX are addressed by NR 
408.02(21). Under NR 408.02(21)(a), for an area designated as 
nonattainment for ozone, a major stationary source is a stationary 
source which emits or has the potential to emit VOC in an amount equal 
to or greater than (1) 100 tons per year in an area classified as 
marginal or moderate nonattainment for ozone (NR 408.02(21)(a)(1); (2) 
50 tons per year of VOC in an area designated as serious nonattainment 
for ozone (NR 408.02(21)(a)(1)(b)); (3) 25 tons per year of VOC in an 
area designated as severe for ozone (NR 408.02(21)(a)(1)(d)); and (4) 
10 tons per year of VOC in an area designated as extreme for ozone (NR 
408.02(21)(a)(1)(e)). Under NR 408.02(21)(b), for an area designated as 
nonattainment for ozone, a major stationary source is a stationary 
source which emits or has the potential to emit NOX in an 
amount equal to or greater than (1) 100 tons per year in an area 
classified as marginal or moderate nonattainment for ozone (NR 
408.02(21)(b)(1)(a)); (2) 50 tons per year in an area classified as 
serious nonattainment for ozone (NR 408.02(21)(b)(2)); (3) 25 tons per 
year in an area classified as severe nonattainment for ozone (NR 
408.02(21)(b)(3)); and (4) 10 tons per year in an area classified as 
extreme nonattainment for ozone (NR 408.02(21)(b)(4)).
    Wisconsin's thresholds are consistent with the Federal thresholds; 
therefore, we propose to find that Wisconsin's NNSR provisions at NR 
408.02(21)

[[Page 3379]]

satisfy the requirements of 40 CFR 51.165(a)(1)(iv)(A)(1)(i)-(iv) and 
(2).
2. Change Constitutes Major Source by Itself--40 CFR 
51.165(a)(1)(iv)(A)(3)
    Under 40 CFR 51.165(a)(1)(iv)(A)(3), any physical change that would 
occur at a stationary source not qualifying as major stationary source 
becomes a major stationary source if the change would constitute a 
major stationary source by itself. Wisconsin has certified that the 
requirement is addressed by NR 408.02(21)(a)(3) which states that a 
major source includes ``any physical change that would occur at a 
stationary source not qualifying under subd. 1. or 2. as a major 
source, if the change would constitute a major source by itself.'' 
Wisconsin's provisions are consistent with Federal provisions; 
therefore, we propose to find that the Wisconsin SIP at NR 
408.02(21)(a)(3) satisfies the requirements of 40 CFR 
51.165(a)(1)(iv)(A)(3).
3. Significant Net Emissions Increase of NOX Is Significant 
for Ozone--40 CFR 51.165(a)(1)(v)(E)
    Under 40 CFR 51.165(a)(1)(v)(E), any significant net emissions 
increase of NOX is considered significant for ozone. 
Wisconsin has certified that this requirement is addressed by NR 
408.02(20)(c), which provides that any significant net emissions 
increase of NOX is considered significant for ozone in 
addition to any separate requirements for nitrogen oxides. Wisconsin's 
provisions at NR 408.02(20)(c) are consistent with the Federal 
requirements at 40 CFR 51.165(a)(1)(v)(E); therefore, we propose to 
find that NR 408.02(20(c) satisfies the requirements of 40 CFR 51. 
165(a)(1)(v)(E).
4. Any Emissions Change of VOC in an Extreme Area Triggers NNSR--40 CFR 
51.165 (a)(1)(v)(F)
    Under 40 CFR 51.165(a)(1)(v)(F), any physical change in, or change 
in the method of operation of, a major stationary source of VOC that 
results in any increase in emissions of VOC from any discrete 
operation, emissions unit, or other pollutant emitting activity at the 
source shall be considered a significant net emissions increase and a 
major modification for ozone, if the major stationary source is located 
in an extreme ozone nonattainment are that is subject to CAA title 1, 
part D, subpart 2. Wisconsin has certified that this requirement is 
addressed by NR 408.02(20)(a). NR 408.02(20)(a) provides that ``any 
physical change in, or change in the method of operation of a major 
source of VOCs located in an extreme nonattainment area for ozone which 
results in any increase in emissions of VOCs from any discrete 
operation, emissions unit or other pollutant emitting activity at the 
source shall be considered a major modification for ozone.'' 
Wisconsin's provision at NR 408.02(20)(a) is consistent with the 
Federal requirements of 40 CFR 51.165(a)(1)(v)(F); therefore, we 
propose to find that NR 408.02(20)(a) satisfies the requirements of 40 
CFR 51.165(a)(1)(v)(F).
5. Significant Emission Rates for VOC and NOX as Ozone 
Precursors--40 CFR 51.165(a)(1)(x)(A)-(C) and (E)
    Under 40 CFR 51.165(a)(1)(x)(A), (B) and (e), the significant 
emission rate for ozone is 40 tons per year of VOC or NOX, 
except that the significant emission rate in serious or severe 
nonattainment areas shall be 25 tons per year. Under 40 CFR 
51.165(a)(1)(x)(E), any increase in actual emissions of VOC from any 
emissions unit at a major stationary source of VOC located in an 
extreme ozone nonattainment area shall be considered a significant net 
emissions increase.
    Wisconsin has certified that NR 408.02(32)(a),(c),(d) and (f) 
satisfy these requirements. NR 408.02(32)(a) defines significant 
emission rates for NOX of 40 tons per year and for ozone of 
40 tons per year of VOC. NR 408.02(32)(c) defines significant for 
serious and severe ozone nonattainment areas as 25 tons per year of 
VOC. NR 408.02(32)(d) states that any increase in VOC emissions at a 
major source of VOC in an extreme ozone nonattainment area is 
considered significant. NR 408.02(32)(f) states that for purposes of 
applying NR 408.03(5)(major NSR applicability) to major sources of 
NOX located in ozone nonattainment areas, the significant 
emission rates and other requirements for VOC shall apply to 
NOX emissions. These provisions satisfy the requirements of 
40 CFR 51.165(a)(1)(x)(A)-(C) and (E) with respect to VOC emissions. 
While the significant emission rate for ozone in NR 408.02(32)(a) does 
not specifically include NOX, Wisconsin has certified that 
other provisions ensure NOX would also be subject to the 40 
tons per year significance rate for ozone. NR 408.03(2) provides that 
the NNSR requirements shall apply to any new source or major 
modification that is major for the pollutant, or precursor of the 
pollutant, for which the area is designated as nonattainment. 
Therefore, a major modification of NOX in an ozone 
nonattainment area would trigger NNSR requirements for ozone. EPA is 
proposing to find that NR 408.02(32)(a), (c), (d) and (f) in 
conjunction with NR 408.03(2) satisfy the requirements of 40 CFR 
51.165(a)(1)(x)(A)-(C) and (E).
6. Provisions for Emissions Reduction Credits--40 CFR 51.165 
(a)(3)(ii)(C)(1)-(2)
    Under 40 CFR 51.165(a)(3)(ii)(C)(1) and (2), to be considered 
creditable, emission reductions achieved by shutting down an existing 
emission unit or curtailing production or operating hours must be 
surplus, permanent, quantifiable, and federally enforceable. Shutdowns 
or curtailments must have occurred after the last day of the base year 
for the SIP planning process. Reviewing authorities may choose to 
consider a prior shutdown or curtailment to have occurred after the 
last day of the base year if the projected emissions inventory used to 
develop the attainment demonstration explicitly includes emissions from 
the previously shutdown or curtailed emissions units, but in no event 
may credit be granted for shutdowns that occurred prior to August 7, 
1977. Shutdown or curtailment reductions occurring before the last day 
of the base year for the SIP planning process may also be generally 
credited if the shutdown or curtailment occurred on or after the date 
the construction permit application is filed or if the applicant can 
establish that the proposed new emissions unit is a replacement for the 
shutdown or curtailed emission unit and the emission reductions that 
result are surplus, permanent, quantifiable, and federally enforceable. 
Wisconsin has certified that the requirements of NR 408.06(7)(a), NR 
408.06(7)(a)(1), NR 408.06(7)(a)(4), and NR 408.06(7)(b) satisfy these 
requirements.
    NR 408.06(7)(a) states that ``emissions reductions achieved by 
shutting down an existing source or curtailing production or operating 
hours below baseline levels may be generally credited if (1) The 
reductions are surplus, permanent, quantifiable and federally 
enforceable . . . (4) The shutdown or curtailment occurs on or after 
the date specified for this purpose in the state implementation plan, 
and if the date specified is on or after the date of the most recent 
emissions inventory used in the plan's demonstration of attainment. The 
department may consider a prior shutdown or curtailment to have 
occurred after the date of its most recent emissions inventory, if the 
inventory explicitly includes as current existing emissions the 
emissions from the previously shut down or curtailed sources. However, 
no credit is available for shutdowns which occurred prior to August 7, 
1977.'' NR

[[Page 3380]]

408.06(7)(b) states that ``the emission reductions described in par. 
(a) may be credited in the absence of a U.S. environmental protection 
agency approved state implementation plan only if the shutdown or 
curtailment occurs on or after the date the construction permit 
application is filed or if the applicant can establish that the 
proposed new source is a replacement for the shut down or curtailed 
source, and the cutoff date provisions of par. (a)4. are observed.'' 
EPA finds these provisions to be consistent with the Federal 
requirements; therefore, we propose to find that the provisions of NR 
408.06(7)(a), NR 408.06(7)(a)(1), NR 408.06(7)(a)(4) and NR 
408.06(7)(b) satisfy the requirements of 40 CFR 51.165(a)(3)(ii)(C)(1) 
and (2).
7. Requirements for VOC Apply to NOX as Ozone Precursors--40 
CFR 51.165(a)(8)
    Under 40 CFR 51.165(a)(8), all requirements applicable to major 
stationary sources and major modifications of VOC shall apply to 
NOX except where the Administrator has granted a 
NOX waiver applying the standards set forth under CAA 
section 182(f) and the waiver continues to apply. Wisconsin has 
certified that these Federal requirements are satisfied by NR 
408.03(5). NR 408.03(5) states ``The requirements of ss. NR 408.04 to 
408.10 applicable to new major sources or major modifications of VOC 
shall apply to nitrogen oxides emissions from new major sources or 
major modifications of nitrogen oxides, except that the requirements do 
not apply if the administrator determines, when the administrator 
approves a plan, plan revision or petition under provisions of section 
182(f) of the CAA (42 U.S.C. 7511a(f)), that the statutory requirements 
of section 1829f) do not apply.'' We find that NR 408.03(5) is 
consistent with the requirements of 40 CFR 51.165(a)(8); therefore, we 
propose to find that the Wisconsin SIP satisfies the requirements of 40 
CFR 51.165(a)(8).
8. Offset Ratios for VOC and NOX for Ozone Nonattainment 
Areas--40 CFR 51.165(a)(9)(ii)-(iv)
    Under 40 CFR 51.165(a)(9)(ii)(A)-(E), the VOC offset ratios shall 
be 1.1:1 in marginal ozone nonattainment areas, 1.15:1 in moderate 
ozone nonattainment areas, 1.2:1 in serious ozone nonattainment areas, 
and 1.3:1 in severe ozone nonattainment areas, and 1.5:1 in extreme 
ozone nonattainment areas. NR 408.06(4) states ``In meeting the 
requirements of sub. (3) for ozone nonattainment areas classified under 
section 182 of the CAA (42 U.S.C. 7511a), the ratio of total actual 
emission reductions of VOCs, and nitrogen oxides where applicable, to 
the net emissions increase for the same air contaminant class shall be 
as follows:
    (a) In any rural transport or marginal nonattainment area for 
ozone: at least 1.1 to 1.
    (b) In any moderate nonattainment area for ozone: At least 1.15 to 
1.
    (c) In any serious nonattainment area for ozone: At least 1.2 to 1.
    (d) In any severe nonattainment area for ozone: At least 1.3 to 1.
    (e) In any extreme nonattainment area for ozone: At least 1.5 to 
l.'' The offset ratios for both VOC and NOX are consistent 
with 40 CFR 51.165(a)(9)(ii)(A)-(E); therefore, we propose to find that 
the requirements of NR 408.06(4) satisfy the requirements of 40 CFR 
51.165(a)(9)(ii)(A)-(E).
    40 CFR 51.165(a)(9)(iv) requires, for ozone nonattainment areas 
subject to CAA title 1, part D, subpart 1 but not subpart 2, an offset 
ratio of at least 1:1. All of the current ozone nonattainment areas in 
Wisconsin were designated pursuant to CAA title 1, part D, subpart 2 
and so this requirement does not apply to Wisconsin at this time.
9. OTR Requirements
    Wisconsin is not located in an OTR, and has certified as such. 
Wisconsin is not required to include the OTR provisions set forth in 40 
CFR 51.165(a)(1)(iv)(A)(1)(ii), 40 CFR 51.165(a)(1)(iv)(A)(2)(ii), 40 
CFR 51.165(a)(1)(v)(E), 40 CFR 51.165(a)(1)(x)(C), 40 CFR 51.165(a)(8), 
and 40 CFR 51.165(a)(9)(iii) in the SIP until such time that EPA 
publishes rules that establish Wisconsin as part of the OTR.
10. Anti-Backsliding Provisions--40 CFR 51.165(a)(12)
    Anti-backsliding provisions are designed to ensure that for 
existing ozone nonattainment areas that are designated nonattainment 
for a revised and more stringent ozone NAAQS, (1) there is protection 
against degradation of air quality (i.e., the areas do not 
``backslide''), (2) the areas continue to make progress toward 
attainment of the new, more stringent NAAQS, and (3) there is 
consistency with the ozone NAAQS implementation framework outlined in 
CAA title 1, part D, subpart 2. See 78 FR 34211. As part of the SIP 
Requirements Rule, EPA revoked the 1997 NAAQS for all purposes and 
established anti-backsliding requirements for areas that remained 
designated nonattainment for the revoked NAAQS. See 80 FR 12265 and 40 
CFR 51.165(a)(12). Under 40 CFR 51.165(a)(12), the anti-backsliding 
requirements at 40 CFR 51.1105 apply in any area designated 
nonattainment for the 2008 ozone NAAQS and designated nonattainment for 
the 1997 ozone NAAQS on April 6, 2015. The anti-backsliding 
requirements apply to Sheboygan County, which was designated as a 
moderate ozone nonattainment area for the 1997 ozone NAAQS. Anti-
backsliding requirements are addressed in documents issued by the 
Wisconsin Department of Natural Resources pursuant toss. 285.23(2), and 
are included as part of a separate SIP action.

III. What action is EPA proposing?

    EPA is proposing to approve Wisconsin's July 18, 2018 SIP revision 
addressing the NNSR requirements for the 2008 ozone NAAQS for the 
Wisconsin portion of the Chicago Nonattainment Area and for Sheboygan 
County. EPA has concluded that Wisconsin's submission fulfills the 40 
CFR 51.1114 revision requirement, meets the requirements of CAA 
sections 110 and 172 and the minimum SIP requirements of 40 CFR 51.165. 
Approval of the NNSR requirements would address EPA's finding that 
Wisconsin failed to submit moderate ozone NNSR requirements and turn 
off the sanctions and FIP clock.

IV. 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

[[Page 3381]]

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, Ozone, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Dated: December 20, 2018.
James O. Payne,
Acting Deputy Regional Administrator, Region 5.
[FR Doc. 2019-02055 Filed 2-11-19; 8:45 am]
 BILLING CODE 6560-50-P