[Federal Register Volume 85, Number 190 (Wednesday, September 30, 2020)]
[Proposed Rules]
[Pages 61673-61680]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-20516]
[[Page 61673]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2018-0664; FRL-10013-18-Region 5]
Air Plan Approval; Wisconsin; Infrastructure SIP Requirements for
the 2015 Ozone NAAQS
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve elements of a State Implementation Plan (SIP) submission from
Wisconsin regarding the infrastructure requirements of section 110 of
the Clean Air Act (CAA) for the 2015 Ozone 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: Comments must be received on or before October 30, 2020.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2018-0664 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 is EPA's analysis of this SIP submission?
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews
I. What is the background of this SIP submission?
Whenever EPA promulgates a new or revised NAAQS, CAA section
110(a)(1) requires states to make SIP submissions to provide for the
implementation, maintenance, and enforcement of the NAAQS. This type of
SIP submission is commonly referred to as an ``infrastructure SIP.''
These submissions must meet the various requirements of CAA section
110(a)(2), as applicable. Due to ambiguity in some of the language of
CAA section 110(a)(2), EPA believes that it is appropriate to interpret
these provisions in the specific context of acting on infrastructure
SIP submissions. EPA has previously provided comprehensive guidance on
the application of these provisions through our September 13, 2013
Infrastructure SIP Guidance and through regional actions on
infrastructure submissions (EPA's 2013 Guidance).\1\ Unless otherwise
noted below, we are following that existing approach in acting on this
submission. In addition, in the context of acting on such
infrastructure submissions, EPA evaluates the submitting state's SIP
for facial compliance with statutory and regulatory requirements, not
for the state's implementation of its SIP.\2\ EPA has other authority
to address any issues concerning a state's implementation of the rules,
regulations, consent orders, etc. that comprise its SIP.
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\1\ EPA explains and elaborates on these ambiguities and its
approach to address them in our September 13, 2013 Infrastructure
SIP Guidance (available at https://www3.epa.gov/airquality/urbanair/sipstatus/docs/Guidance_on_Infrastructure_SIP_Elements_Multipollutant_FINAL_Sept_2013.pdf), as well as in numerous agency actions, including EPA's prior
action on Wisconsin's infrastructure SIP to address the 2012 fine
particulate matter (PM2.5) NAAQS (81 FR 95043 (December
27, 2016)).
\2\ See U.S. Court of Appeals for the Ninth Circuit decision in
Montana Environmental Information Center v. EPA, No. 16-71933 (Aug.
30, 2018).
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II. What is EPA's analysis of this SIP submission?
Wisconsin provided a detailed synopsis of how various components of
its SIP meet each of the applicable requirements in section 110(a)(2)
for the 2015 ozone NAAQS, as applicable. The following review evaluates
the State's submission.
A. Section 110(a)(2)(A)--Emission Limits and Other Control Measures
This section requires SIPs to include enforceable emission limits
and other control measures, means or techniques, schedules for
compliance, and other related matters. EPA has long interpreted
emission limits and control measures for attaining the standards as
being due when nonattainment planning requirements are due.\3\ In the
context of an infrastructure SIP, EPA is not evaluating the existing
SIP provisions for this purpose. Instead, EPA is only evaluating
whether the state's SIP has basic structural provisions for the
implementation of the NAAQS.
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\3\ See, e.g., EPA's final rule on ``National Ambient Air
Quality Standards for Lead.'' 73 FR 66964 at 67034.
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Under Wisconsin Statutes (Wis. Stats.) 227 and 285, the Wisconsin
Department of Natural Resources (WDNR) holds the authority to create
new rules and implement existing emission limits and controls.
Authority to monitor, update, and implement revisions to Wisconsin's
SIP, including revisions to emission limits and control measures as
necessary to meet NAAQS, is contained in Wis. Stats. 285.11-285.19.
Authority related to specific pollutants, including the establishment
of ambient air quality standards and increments, identification of
nonattainment areas, air resource allocations, and performance and
emissions standards, is contained in Wis. Stats. 285.21-285.29.
Specifically, authority for WDNR to create new rules and
regulations is found in Wis. Stats. 227.11, 285.11, 285.17, and 285.21.
Wis. Stats. 227.11(2) expressly confers rulemaking authority to an
agency. Wis. Stats. 285.11(1) and (6) require that WDNR promulgate
rules and establish control strategies in order to prepare and
implement the SIP for the prevention, abatement, and control of air
pollution in Wisconsin. Wis. Stats. 285.17(1) requires WDNR to classify
sources or categories of sources that may cause or contribute to air
pollution, and Wis. Stats. 285.21(1) requires that WDNR promulgate
ambient air quality standards that are similar to the NAAQS.
[[Page 61674]]
EPA's 2013 Guidance states that to satisfy section 110(a)(2)(A)
requirements, ``an air agency's submission should identify existing
EPA-approved SIP provisions or new SIP provisions that the air agency
has adopted and submitted for EPA approval that limit emissions of
pollutants relevant to the subject NAAQS, including precursors of the
relevant NAAQS pollutant where applicable.'' WDNR identified existing
controls and emission limits in the Wisconsin Administrative Code that
can be applied to the 2015 ozone NAAQS. These regulations include
controls and emission limits for volatile organic compounds (VOC) and
nitrogen oxides (NOX), which are precursors to ozone. VOC as
an ozone precursor is regulated by Wisconsin Administrative Code
Chapters Natural Resources (NR) 419-425, and NOX as an ozone
precursor is regulated by NR 428.
In this rulemaking, EPA is not proposing to approve any new
provisions in NR 419-425 or NR 428. EPA is also not proposing to
approve or disapprove any existing state provisions or rules related to
start-up, shutdown or malfunction or director's discretion in the
context of section 110(a)(2)(A). EPA proposes that Wisconsin has met
the infrastructure SIP requirements of section 110(a)(2)(A) with
respect to the 2015 ozone NAAQS.
B. Section 110(a)(2)(B)--Ambient Air Quality Monitoring/Data System
This section requires SIPs to provide for establishing and
operating ambient air quality monitors, collecting and analyzing
ambient air quality data, and, upon request, make these data available
to EPA. EPA's review of a state's annual monitoring plan includes EPA's
determination that the state: (i) Monitors air quality at appropriate
locations throughout the state using EPA-approved Federal Reference
Methods or Federal Equivalent Method monitors; (ii) submits data to
EPA's Air Quality System (AQS) in a timely manner; and, (iii) provides
EPA Regional Offices with prior notification of any planned changes to
monitoring sites or the network plan.
In accordance with 40 CFR part 53 and 40 CFR part 58, WDNR
continues to operate an air monitoring network that is used to
determine compliance with the NAAQS. WDNR enters air monitoring data
into AQS and provides EPA with prior notification when changes to its
monitoring network or plan are being considered. Further, WDNR submits
annual monitoring network plans to EPA. On October 2, 2019, EPA
approved the State's 2020 Annual Air Monitoring Network Plan, including
the plan for ozone. EPA proposes that Wisconsin has met the
infrastructure SIP requirements of section 110(a)(2)(B) with respect to
the 2015 ozone NAAQS.
C. Section 110(a)(2)(C)--Program for Enforcement of Control Measures;
Minor NSR; PSD
This section requires SIPs to set forth a program providing for
enforcement of all SIP measures, and the regulation of construction of
new and modified stationary sources to meet New Source Review (NSR)
requirements under Prevention of Significant Deterioration (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. EPA's 2013 Guidance states that the NNSR
requirements of section 110(a)(2)(C) are generally outside the scope of
infrastructure SIPs; however, a state must provide for regulation of
minor sources and minor modifications (minor NSR).
1. Program for Enforcement of Control Measures
A state's infrastructure SIP submission should identify the
statutes, regulations, or other provisions in the SIP that provide for
enforcement of emission limits and control measures.
WDNR maintains an enforcement program to ensure compliance with SIP
requirements. The Bureau of Air Management houses an active statewide
compliance and enforcement team that works in all geographic regions of
the State. WDNR refers actions as necessary to the Wisconsin Department
of Justice with the involvement of WDNR. Wis. Stats. 285.83 and Wis.
Stats. 285.87 provide WDNR with the authority to enforce violations and
assess penalties, to ensure that required measures are ultimately
implemented. EPA proposes that Wisconsin has met the enforcement of SIP
measures requirements of section 110(a)(2)(C) with respect to the 2015
ozone NAAQS.
2. Minor NSR
An infrastructure SIP submission should identify the existing EPA-
approved SIP provisions that govern the minor source pre-construction
program that regulates emissions of the relevant NAAQS pollutant.
EPA approved Wisconsin's minor NSR program on January 18, 1995 (60
FR 3543); since that date, WDNR and EPA have relied on the existing
minor NSR program to ensure that new and modified sources not captured
by the major NSR permitting programs do not interfere with attainment
and maintenance of the NAAQS. As stated in EPA's 2013 Guidance, the CAA
allows EPA to approve infrastructure SIP submissions that do not
implement the 2002 NSR Reform Rules. Therefore, EPA is not proposing
action on existing NSR Reform regulations for Wisconsin. EPA proposes
that Wisconsin has met the minor NSR requirements of section
110(a)(2)(C) with respect to the 2015 ozone NAAQS.
3. PSD
The evaluation of each state's submission addressing the PSD
requirements of section 110(a)(2)(C) covers: (i) PSD provisions that
explicitly identify NOX as a precursor to ozone in the PSD
program; (ii) identification of precursors to PM2.5 \4\ and
the identification of PM2.5 and PM10 \5\
condensables in the PSD program; (iii) PM2.5 increments in
the PSD program; and (iv) greenhouse gas (GHG) permitting and the
``Tailoring Rule'' in the PSD program.\6\
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\4\ PM2.5 refers to particles with an aerodynamic
diameter of less than or equal to 2.5 micrometers, also referred to
as ``fine'' particles.
\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 (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 (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 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 2015 ozone NAAQS.
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Some PSD requirements under section 110(a)(2)(C) overlap with
elements of section 110(a)(2)(D)(i), section 110(a)(2)(E), and section
110(a)(2)(J). These links are discussed in the appropriate areas below.
a. 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 61675]]
(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.\7\
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\7\ Similar changes were codified in 40 CFR 52.21.
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The Phase 2 Rule required that states submit SIP revisions
incorporating the requirements of the rule, including provisions
specifically identifying NOX as a precursor to ozone, by
June 15, 2007 (see 70 FR 71612 at 71683, November 29, 2005).
EPA approved revisions to Wisconsin's PSD SIP reflecting these
requirements on February 7, 2017 (82 FR 9515), and therefore proposes
that Wisconsin has met this set of infrastructure SIP requirements of
section 110(a)(2)(C) with respect to the 2015 ozone NAAQS.
b. 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 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 the 2008 rule, EPA identified precursors to
PM2.5 for the PSD program to be sulfur dioxide
(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 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, May 16, 2008).\8\
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\8\ 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 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 Wisconsin's infrastructure SIP as to
elements (C), (D)(i)(II), or (J) with respect to the PSD
requirements promulgated by the 2008 implementation rule does not
conflict with the court's opinion. The court's decision with respect
to the nonattainment NSR requirements promulgated by the 2008
implementation 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.
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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 due to
EPA by May 16, 2011 (see 73 FR 28321 at 28341, May 16, 2008).
EPA approved revisions to Wisconsin's PSD SIP reflecting these
requirements on October 16, 2014 (79 FR 62008), and therefore proposes
that Wisconsin has met this set of infrastructure SIP requirements of
section 110(a)(2)(C) with respect to the 2015 ozone NAAQS.
c. PM2.5 Increments in the PSD Program
On October 20, 2010, 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
mean max
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Class I.......................................... 1 2
Class II......................................... 4 9
Class III........................................ 8 18
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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).
EPA approved revisions to Wisconsin's PSD SIP reflecting these
requirements on February 7, 2017 (82 FR 9515), and therefore proposes
that Wisconsin has met this set of infrastructure SIP requirements of
section 110(a)(2)(C) with respect to the 2015 ozone NAAQS.
d. GHG Permitting and the ``Tailoring Rule'' in the PSD Program
With respect to the requirements of section 110(a)(2)(C) as well as
section 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
[[Page 61676]]
requirements for all regulated NSR pollutants. The requirements of
section 110(a)(2)(D)(i)(II) may also be satisfied by demonstrating that
the air agency has a complete PSD permitting program correctly
addressing all regulated NSR pollutants. Wisconsin has shown that it
currently has a PSD program in place that covers all regulated NSR
pollutants, including greenhouse gases (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 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 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 Court's 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. 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), ``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.''
EPA is planning to take additional steps to revise Federal PSD
rules in light of the Supreme Court's opinion and subsequent D.C.
Circuit's ruling. Some states have begun to revise their existing SIP-
approved PSD programs in light of these court decisions, and some
states may prefer not to initiate this process until they have more
information about the planned revisions to EPA's PSD regulations. EPA
is not expecting states to have revised their PSD programs in
anticipation of EPA's planned actions to revise its PSD program rules
in response to the court decisions. For purposes of infrastructure SIP
submissions, EPA is only evaluating such submissions to assure that the
state's program addresses GHGs consistent with both court decisions.
At present, EPA has determined the Wisconsin SIP is sufficient to
satisfy the requirements of section 110(a)(2)(C), section
110(a)(2)(D)(i)(II), and section 110(a)(2)(J) with respect to GHGs.
This is because the PSD permitting program previously approved by EPA
into the SIP continues to require that PSD permits issued to ``anyway''
sources contain limitations on GHG emissions based on the application
of BACT. On August 1, 2018, EPA updated the Wisconsin SIP to include
revised PSD rules to reflect both courts' decisions, and preserving PSD
permitting requirements for GHGs for ``anyway'' sources (83 FR 37434).
D. Section 110(a)(2)(D)--Interstate Transport
Section 110(a)(2)(D)(i)(I) requires SIPs to include provisions
prohibiting any source or other type of emissions activity in one state
from contributing significantly to nonattainment, or interfering with
maintenance, of the NAAQS in another state. 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 of any other state to prevent significant deterioration of air
quality, or from interfering with measures required of any other state
to protect visibility. Section 110(a)(2)(D)(ii) requires each SIP to
contain adequate provisions requiring compliance with the applicable
requirements of CAA section 126 and section 115 (relating to interstate
and international pollution abatement, respectively).
1. Significant Contribution to Nonattainment
In this rulemaking, EPA is not evaluating section
110(a)(2)(D)(i)(I) requirements relating to significant contribution to
nonattainment for the 2015 ozone NAAQS. Instead, EPA will evaluate
these requirements in a separate rulemaking.
2. Interference With Maintenance
In this rulemaking, EPA is not evaluating section
110(a)(2)(D)(i)(I) requirements relating to interference with
maintenance for the 2015 ozone NAAQS. Instead, EPA will evaluate these
requirements in a separate rulemaking.
3. Interference With PSD
EPA notes that Wisconsin's satisfaction of the applicable
infrastructure SIP PSD requirements for the 2015 ozone NAAQS has been
detailed in the section addressing section 110(a)(2)(C). EPA further
notes that the proposed actions in that section related to PSD are
consistent with the proposed actions related to PSD for section
110(a)(2)(D)(i)(II), and they are reiterated below.
EPA has previously approved revisions to Wisconsin's SIP that 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,
and regulate condensable PM2.5 and PM10 in
applicability determinations and for purposes of establishing emission
limits. EPA has also previously approved revisions to Wisconsin'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 per the
2010 NSR Rule. EPA is proposing that Wisconsin's SIP contains
provisions that adequately address the 2015 ozone NAAQS.
States also have an obligation to ensure that sources located in
nonattainment areas do not interfere with a neighboring state's PSD
program. One way that this requirement can be satisfied is through an
NNSR program consistent with the CAA that addresses any pollutants for
which there is a designated nonattainment area within the state.
Wisconsin's SIP-approved NNSR regulations, specifically in chapter
NR 408 of the Wisconsin Administrative Code, are consistent with 40 CFR
51.165, or 40 CFR part 51, appendix S. Therefore, EPA proposes that
Wisconsin has met all of the applicable section 110(a)(2)(D)(i)(II)
requirements relating to interference with PSD for the 2015 ozone
NAAQS.
4. Interference With Visibility Protection
Under the applicable requirements for visibility protection of
section 110(a)(2)(D)(i)(II), states are subject to visibility and
regional haze program requirements under part C of the CAA (which
includes sections 169A and 169B). EPA's 2013 Guidance states that
[[Page 61677]]
these requirements can be satisfied by an approved SIP addressing
reasonably attributable visibility impairment, if required, or an
approved SIP addressing regional haze.
On August 7, 2012, EPA published its final approval of Wisconsin's
regional haze plan (77 FR 46952). Therefore, EPA proposes that
Wisconsin has met all the applicable section 110(a)(2)(D)(i)(II)
requirements relating to interference with visibility protection for
the 2015 ozone NAAQS.
5. Interstate and International Pollution Abatement
Section 110(a)(2)(D)(ii) requires each SIP to contain adequate
provisions requiring compliance with the applicable requirements of
section 126 and section 115 (relating to interstate and international
pollution abatement, respectively).
Section 126(a) requires new or modified sources to notify
neighboring 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.
Wisconsin's EPA-approved portion of its PSD program contains
provisions requiring new or modified sources to notify neighboring
states of potential negative air quality impacts. Wisconsin's
submission references these provisions as being adequate to meet the
requirements of section 126(a). Wisconsin has no pending obligations
under section 115, and no sources in Wisconsin are the subject of an
active finding under section 126. Therefore, EPA proposes that
Wisconsin has met all the applicable section 110(a)(2)(D)(ii)
requirements for the 2015 ozone NAAQS.
E. Section 110(a)(2)(E)--Adequate Resources; State Board Requirements
This section requires each state to provide for adequate personnel,
funding, and legal authority under state law to carry out its SIP and
related issues. Section 110(a)(2)(E)(ii) also requires each state to
comply with the requirements respecting state boards under section 128.
1. Adequate Resources
To satisfy the adequate resources requirements of section
110(a)(2)(E), the state must provide assurances that its air agency has
adequate resources, personnel, and legal authority to implement the
relevant NAAQS.
Wisconsin's biennial budget ensures that EPA grant funds as well as
state funding appropriations are sufficient to administer its air
quality management program, and WDNR has routinely demonstrated that it
retains adequate personnel to administer its air quality management
program. Wisconsin's Environmental Performance Partnership Agreement
with EPA documents certain funding and personnel levels at WDNR. As
discussed in previous sections, basic duties and authorities in the
State are outlined in Wis. Stats. 285.11. EPA proposes that Wisconsin
has met the infrastructure SIP requirements of this portion of section
110(a)(2)(E) with respect to the 2015 ozone, NAAQS.
2. State Board Requirements
Section 110(a)(2)(E) also requires each SIP to set forth provisions
that comply with the state board requirements of section 128 of the
CAA. Section 128 contains two explicit requirements: (i) That any board
or body which approves permits or enforcement orders under this chapter
have at least a majority of members who represent the public interest
and do not derive any significant portion of their income from persons
subject to permits and enforcement orders under this chapter, and (ii)
that any potential conflicts of interest by members of such board or
body or the head of an executive agency with similar powers be
adequately disclosed.
On July 2, 2015, WDNR submitted rules from Wis. Stats. for
incorporation into the SIP, pursuant to section 128 of the CAA. Under
Wis. Stats. 15.05, the administrative powers and duties of the WDNR,
including issuance of permits and enforcement orders, are vested in the
Secretary. Therefore, Wisconsin has no further obligations under
section 128(a)(1) of the CAA.
Under section 128(a)(2) of the CAA, the head of the executive
agency with the power to approve permits or enforcement orders must
adequately disclose any potential conflicts of interest. In Wisconsin,
this power is vested in the Secretary of the WDNR. Wis. Stats. 19.45(2)
prevents financial gain of any public official, which addresses the
issue of deriving any significant portion of income from persons
subject to permits and enforcement orders. Additionally, Wis. Stats.
19.46 prevents a public official from taking actions where there is a
conflict of interest. As a public official under Wis. Stats. 19, the
Secretary of the WDNR is subject to these ethical obligations. EPA
concludes that WDNR's submission as it relates to the state board
requirements under section 128 is consistent with applicable CAA
requirements. EPA approved these rules on January 21, 2016 (81 FR
3334). Therefore, EPA is proposing that Wisconsin has satisfied the
applicable infrastructure SIP requirements for this section of
110(a)(2)(E) for the 2015 ozone NAAQS.
F. Section 110(a)(2)(F)--Stationary Source Monitoring System
In this rulemaking, EPA is not evaluating section 110(a)(2)(F)
requirements relating to stationary source monitoring for the 2015
ozone NAAQS. Instead, EPA will evaluate these requirements in a
separate rulemaking.
G. Section 110(a)(2)(G)--Emergency Powers
This section requires that a plan provide for authority that is
analogous to what is provided in section 303 of the CAA, and adequate
contingency plans to implement such authority. EPA's 2013 Guidance
states that infrastructure SIP submissions should specify authority,
vested in an appropriate official, to restrain any source from causing
or contributing to emissions which present an imminent and substantial
endangerment to public health or welfare, or the environment.
Wis. Stats. 285.85 provides the requirement for WDNR to act upon a
finding that an emergency episode or condition exists. The language
contained in this chapter authorizes WDNR to seek immediate injunctive
relief in circumstances of substantial danger to the environment or to
public health. EPA proposes that Wisconsin has met the applicable
infrastructure SIP requirements for this portion of section
110(a)(2)(G) with respect to the 2015 ozone NAAQS.
H. Section 110(a)(2)(H)--Future SIP Revisions
This section requires states to have the authority to revise their
SIPs in response to changes in the NAAQS, to the availability of
improved methods for attaining the NAAQS, or to an EPA finding that the
SIP is substantially inadequate.
Wis. Stats. 285.11(6) provides WDNR with the authority to develop
all rules, limits, and regulations necessary to meet the NAAQS as they
evolve, and to respond to any EPA finding of inadequacy for the overall
Wisconsin SIP and air management programs. EPA proposes that Wisconsin
has met the infrastructure SIP requirements of
[[Page 61678]]
section 110(a)(2)(H) with respect to the 2015 ozone NAAQS.
I. Section 110(a)(2)(I)--Nonattainment Planning Requirements of Part D
The CAA requires that each plan or plan revision for an area
designated as a nonattainment area meet the applicable requirements of
part D of the CAA. Part D relates to nonattainment areas.
EPA has determined that section 110(a)(2)(I) is not applicable to
the infrastructure SIP process. Instead, EPA will action on part D
attainment plans through separate processes.
J. Section 110(a)(2)(J)--Consultation With Government Officials; Public
Notification; PSD; Visibility Protection
The evaluation of the submissions from Wisconsin with respect to
the requirements of section 110(a)(2)(J) are described below.
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.
Wis. Stats. 285.13(5) contains the provisions for WDNR to advise,
consult, contract, and cooperate with other agencies of the state and
local governments, industries, other states, interstate or inter-local
agencies, the Federal government, and interested persons or groups
during the entire process of SIP revision development and
implementation and for other elements regarding air management for
which WDNR is the officially charged agency. WDNR's Bureau of Air
Management has effectively used formal stakeholder structures in the
development and refinement of all SIP revisions. Additionally,
Wisconsin is an active member of the Lake Michigan Air Directors
Consortium (LADCO), which provides technical assessments and a forum
for discussion regarding air quality issues to member states. EPA
proposes that Wisconsin has satisfied the infrastructure SIP
requirements of this portion of section 110(a)(2)(J) with respect to
the 2015 ozone NAAQS.
2. Public Notification
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.
WDNR maintains portions of its website specifically for issues
related to the 2015 ozone NAAQS.\9\ Public notification is provided
through this website, and through a contracted email subscription
service known as ``GovDelivery.'' Information related to monitoring
sites is also found on Wisconsin's website, as is the calendar for all
public events and public hearings held in the State. EPA proposes that
Wisconsin has met the infrastructure SIP requirements of this portion
of section 110(a)(2)(J) with respect to the 2015 ozone NAAQS.
---------------------------------------------------------------------------
\9\ http://dnr.wi.gov/topic/AirQuality/Ozone.html.
---------------------------------------------------------------------------
3. PSD
States must meet applicable requirements of section 110(a)(2)(C)
related to PSD. Wisconsin's PSD program in the context of
infrastructure SIPs has already been discussed above in the paragraphs
addressing section 110(a)(2)(C) and section 110(a)(2)(D)(i)(II), and
EPA notes that the proposed actions for those sections are consistent
with the proposed actions for this portion of section 110(a)(2)(J).
Therefore, EPA proposes that Wisconsin has met all the
infrastructure SIP requirements for PSD associated with section
110(a)(2)(D)(J) for the 2015 ozone NAAQS.
4. Visibility Protection
States are subject to visibility and regional haze program
requirements under part C of the CAA (which includes 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. Thus, we find that there is no new visibility obligation
``triggered'' under section 110(a)(2)(J) when a new NAAQS becomes
effective. In other words, the visibility protection requirements of
section 110(a)(2)(J) are not germane to infrastructure SIPs for the
2015 ozone NAAQS.
K. Section 110(a)(2)(K)--Air Quality Modeling/Data
SIPs must provide for performance of air quality modeling to
predict the effects on air quality from emissions of any NAAQS
pollutant and the submission of such data to EPA upon request.
WDNR maintains the capability of performing computer modeling of
the air quality impacts of emissions of all criteria pollutants,
including both source-oriented and more regionally directed complex
photochemical grid models. WDNR collaborates with LADCO, EPA, and other
Lake Michigan states in performing modeling. Wis. Stats. 285.11, Wis.
Stats. 285.13, and Wis. Stats. 285.60-285.69 authorize WDNR to perform
modeling. EPA proposes that Wisconsin has met the infrastructure SIP
requirements of section 110(a)(2)(K) with respect to the 2015 ozone
NAAQS.
L. Section 110(a)(2)(L)--Permitting Fees
This section requires SIPs to mandate each major stationary source
to pay permitting fees to cover the cost of reviewing, approving,
implementing, and enforcing a permit.
WDNR implements and operates the title V permit program, which EPA
approved on December 4, 2001 (66 FR 62951). EPA approved revisions to
the program on February 28, 2006 (71 FR 9934). NR 410 contains the
provisions, requirements, and structures associated with the costs for
reviewing, approving, implementing, and enforcing various types of
permits. EPA proposes that Wisconsin has met the infrastructure SIP
requirements of section 110(a)(2)(L) for the 2015 ozone NAAQS.
M. Section 110(a)(2)(M)--Consultation/Participation by Affected Local
Entities
States must consult with and allow participation from local
political subdivisions affected by the SIP.
In addition to the measures outlined in the paragraph addressing
WDNR's submittals regarding consultation
[[Page 61679]]
requirements of section 110(a)(2)(J), as contained in Wis. Stats.
285.13(5), the State follows a formal public hearing process in the
development and adoption of all SIP revisions that entail new or
revised control programs or strategies and targets. For SIP revisions
covering more than one source, WDNR is required to provide the standing
committees of the state legislature with jurisdiction over
environmental matters with a 60-day review period to ensure that local
entities have been properly engaged in the development process. EPA
proposes that Wisconsin has met the infrastructure SIP requirements of
section 110(a)(2)(M) with respect to the 2015 ozone NAAQS.
III. What action is EPA taking?
EPA is proposing to approve most elements of a submission from
Wisconsin certifying that its current SIP is sufficient to meet the
required infrastructure elements under section 110(a)(1) and (2) for
the 2015 ozone NAAQS.
EPA's proposed actions for the State's satisfaction of
infrastructure SIP requirements pursuant to section 110(a)(2) and NAAQS
are contained in the table below.
------------------------------------------------------------------------
Element 2015 Ozone
------------------------------------------------------------------------
(A)--Emission limits and other control measures........ A
(B)--Ambient air quality monitoring/data system........ A
(C)1--Program for enforcement of control measures...... A
(C)2--Minor NSR........................................ A
(C)3--PSD.............................................. A
(D)1--I Prong 1: Interstate transport--significant NA
contribution to nonattainment.........................
(D)2--I Prong 2: Interstate transport--interference NA
with maintenance......................................
(D)3--II Prong 3: Interstate transport--interference A
with PSD..............................................
(D)4--II Prong 4: Interstate transport--interference A
with visibility protection............................
(D)5--Interstate and international pollution abatement. A
(E)1--Adequate resources............................... A
(E)2--State board requirements......................... A
(F)--Stationary source monitoring system............... NA
(G)--Emergency powers.................................. A
(H)--Future SIP revisions.............................. A
(I)--Nonattainment planning requirements of part D..... *
(J)1--Consultation with government officials........... A
(J)2--Public notification.............................. A
(J)3--PSD.............................................. A
(J)4--Visibility protection............................ *
(K)--Air quality modeling/data......................... A
(L)--Permitting fees................................... A
(M)--Consultation/participation by affected local A
entities..............................................
------------------------------------------------------------------------
In the above table, the key is as follows:
------------------------------------------------------------------------
------------------------------------------------------------------------
A................................. Approve.
NA................................ No Action/Separate Rulemaking.
*................................ Not germane to infrastructure SIPs.
------------------------------------------------------------------------
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);
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, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
[[Page 61680]]
Dated: September 10, 2020.
Cheryl Newton,
Deputy Regional Administrator, Region 5.
[FR Doc. 2020-20516 Filed 9-29-20; 8:45 am]
BILLING CODE 6560-50-P