Federal Register / Vol. 76, No. 134 / Wednesday, July 13, 2011 / Rules and Regulations 41075 

Sector Southeastern New England 

Captain of the Port Zone. 

■ 3. Add § 165.123 to read as follows: 

§ 165.123 Cruise Ships, Sector 

Southeastern New England Captain of the 

Port (COTP) Zone. 

(a) Location. The following areas are 

security zones: All navigable waters 

within the Southeastern New England 

Captain of the Port (COTP) Zone, 

extending from the surface to the sea 

floor: 

(1) Within a 200-yard radius of any 

cruise ship that is underway and is 

under escort of U.S. Coast Guard law 

enforcement personnel or designated 

representative, or 

(2) Within a 100-yard radius of any 

cruise ship that is anchored, at any 

berth or moored. 

(b) Definitions. For the purposes of 

this section— 

Cruise ship means a passenger vessel 

as defined in 46 U.S.C. 2101(22), that is 

authorized to carry more than 400 

passengers and is 200 or more feet in 

length. A cruise ship under this section 

will also include ferries as defined in 46 

CFR 2.10–25 that are authorized to carry 

more than 400 passengers and are 200 

feet or more in length. 

Designated representative means any 

Coast Guard commissioned, warrant, or 

petty officer who has been designated 

by the COTP to act on the COTP’s 

behalf. The designated representative 

may be on a Coast Guard vessel, or 

onboard Federal, state, or a local agency 

vessel that is authorized to act in 

support of the Coast Guard. 

Southeastern New England COTP 

Zone is as defined in 33 CFR 3.05–20. 

(c) Enforcement. The security zones 

described in this section will be 

activated and enforced upon entry of 

any cruise ship into the navigable 

waters of the United States (see 33 CFR 

2.36(a) to include the 12 NM territorial 

sea) in the Southeastern New England 

COTP zone. This zone will remain 

activated at all times while a cruise ship 

is within the navigable waters of the 

United States in the Sector Southeastern 

New England COTP Zone. In addition, 

the Coast Guard may broadcast the area 

designated as a security zone for the 

duration of the enforcement period via 

Broadcast Notice to Mariners. 

(d) Regulations. (1) In accordance 

with the general regulations in 33 CFR 

part 165, subpart D, no person or vessel 

may enter or move within the security 

zones created by this section unless 

granted permission to do so by the 

COTP Southeastern New England or the 

designated representative. 

(2) All persons and vessels granted 

permission to enter a security zone must 

comply with the instructions of the 

COTP or the designated representative. 

Emergency response vessels are 

authorized to move within the zone, but 

must abide by the restrictions imposed 

by the COTP or the designated 

representative. 

(3) No person may swim upon or 

below the surface of the water within 

the boundaries of these security zones 

unless previously authorized by the 

COTP or his designated representative. 

(4) Upon being hailed by a U.S. Coast 

Guard vessel or the designated 

representative, by siren, radio, flashing 

light or other means, the operator of the 

vessel shall proceed as directed. 

(5) Vessel operators desiring to enter 

or operate within the security zone shall 

contact the COTP or the designated 

representative via VHF channel 16 or 

508–457–3211 (Sector Southeastern 

New England command center) to 

obtain permission to do so. 

Dated: June 16, 2011. 

V.B. Gifford, Jr., 

Captain, U.S. Coast Guard, Captain of the 

Port Southeastern New England. 

[FR Doc. 2011–17536 Filed 7–12–11; 8:45 am] 

BILLING CODE 9110–04–P 

LIBRARY OF CONGRESS 

Copyright Office 

37 CFR Part 251 

[Docket No. 2011–5] 

Copyright Arbitration Royalty Panel 

Rules and Procedures 

AGENCY: Copyright Office, Library of 

Congress. 

ACTION: Final rule; technical 

amendment. 

SUMMARY: The Copyright Office is 

making an amendment to its regulations 

by removing Part 251 Copyright 

Arbitration Royalty Panel Rules of 

Procedure. In 2004, Congress replaced 

the Copyright Arbitration Royalty 

Panels with three Copyright Royalty 

Judges who operate under separate 

regulations. 

DATES: Effective Date: July 13, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Tanya M. Sandros, Deputy General 

Counsel, Copyright GC/I&R, P.O. Box 

70400, Southwest Station, Washington, 

DC 20024. Telephone: (202) 707–8380. 

Telefax: (202) 707–8366. 

SUPPLEMENTARY INFORMATION: On 

November 30, 2004 the Copyright 

Royalty and Distribution Reform Act of 

2004 was signed into law creating the 

Copyright Royalty Judges, Public Law 

108–419, 118 Stat. 2341. The Act 

replaced the royalty panels with three 

Copyright Royalty Judges who 

promulgated separate regulations to 

govern their proceedings. See 37 CFR 

Ch. III. The Act also provided for the 

retention of the Copyright Arbitration 

Royalty Panels (‘‘CARP’’) for the 

purpose of concluding certain open 

proceedings. For this reason, the Office 

retained its regulations in order to 

complete the open proceedings and as a 

historical reference for those 

determinations that had been decided 

under the CARP system and had been 

appealed. These proceedings, however, 

have all been concluded and there is no 

longer a need for these regulations. 

Hence, the Office is amending its 

regulations to remove the section that 

governed the CARP proceedings. 

List of Subjects in 37 CFR Part 251 

Copyright Arbitration Royalty Panels 

(CARPs), Copyright General Provisions, 

Copyright Royalty Board, Copyright 

Royalty Judges. 

Final Rule 

PART 251—[REMOVED] 

Accordingly, under the authority at 17 

U.S.C. 702, 37 CFR Chapter II, 

Subchapter B is amended by removing 

part 251. 

Dated: June 28, 2011. 

Maria A. Pallante, 

Register of Copyrights. 

Approved by: 

James H. Billington, 

The Librarian of Congress. 

[FR Doc. 2011–17657 Filed 7–12–11; 8:45 am] 

BILLING CODE 1410–30–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2007–1179; FRL–9436–7] 

Approval and Promulgation of Air 

Quality Implementation Plans; Illinois; 

Indiana; Michigan; Minnesota; Ohio; 

Wisconsin; Infrastructure SIP 

Requirements for the 1997 8-Hour 

Ozone and PM2.5 National Ambient Air 

Quality Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is taking final action to 

approve elements of submissions by 

Illinois, Indiana, Michigan, Minnesota, 

Ohio, and Wisconsin regarding the 

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41076 Federal Register / Vol. 76, No. 134 / Wednesday, July 13, 2011 / Rules and Regulations 

1See, e.g., Whitman v. American Trucking 

Associations, Inc., 531 U.S. 457 (2001). 

2See, Comments of Midwest Environmental 

Defense Center, dated May 31, 2011. Docket # EPA– 

R05–OAR–2007–1179 (adverse comments on 

proposals for three states in Region 5). 

infrastructure requirements of sections 

110(a)(1) and (2) of the Clean Air Act 

(CAA) for the 1997 eight-hour ground 

level ozone national ambient air quality 

standards (1997 8-hour ozone NAAQS) 

and 1997 fine particle national ambient 

air quality standards (1997 PM2.5

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. The 

proposed rulemaking was published on 

April 28, 2011. During the comment 

period, which ended on May 31, 2011, 

EPA received three comment letters 

raising a number of concerns, which 

will be addressed in this final action. 

DATES: This final rule is effective on 

August 12, 2011. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R05–OAR–2007–1179. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publicly available, 

i.e., Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

http://www.regulations.gov or in hard 

copy at the Environmental Protection 

Agency, Region 5, Air and Radiation 

Division, 77 West Jackson Boulevard, 

Chicago, Illinois 60604. This facility is 

open from 8:30 a.m. to 4:30 p.m., 

Monday through Friday, excluding 

Federal holidays. We recommend that 

you telephone Andy Chang at (312) 

886–0258 before visiting the Region 5 

office. 

FOR FURTHER INFORMATION CONTACT: 

Andy Chang, Environmental Engineer, 

Attainment Planning and Maintenance 

Section, Air Programs Branch (AR–18J), 

U.S. Environmental Protection Agency, 

Region 5, 77 West Jackson Boulevard, 

Chicago, Illinois 60604, (312) 886–0258, 

chang.andy@epa.gov. 

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 the scope of this final rulemaking? 

III. What is our response to comments 

received on the notice of proposed 

rulemaking? 

IV. What action is EPA taking? 

V. Statutory and Executive Order Reviews 

I. What is the background for this 

action? 

This final rulemaking addresses state 

submittals from each state (and 

appropriate state agency) in EPA Region 

5: Illinois Environmental Protection 

Agency (Illinois EPA); Indiana 

Department of Environmental 

Management (IDEM); Michigan 

Department of Environmental Quality 

(MDEQ); Minnesota Pollution Control 

Agency (MPCA); Ohio Environmental 

Protection Agency (Ohio EPA); and 

Wisconsin Department of Natural 

Resources Bureau of Air Management 

(WDNR). At the time of our proposed 

rulemaking, each state had made 

submittals on the following dates: 

Illinois—December 12, 2007; Indiana— 

December 7, 2007, and supplemented 

on September 19, 2008, March 23, 2011, 

and April 7, 2011; Michigan—December 

6, 2007, and supplemented on 

September 19, 2008 and April 6, 2011; 

Minnesota—November 29, 2007; Ohio— 

December 5, 2007, and supplemented 

on April 7, 2011; and, Wisconsin— 

December 12, 2007, and supplemented 

on January 24, 2011 and March 28, 

2011. The submissions from each state, 

and the supplements thereto, may be 

found in the docket for this action. 

Under sections 110(a)(1) and (2) of the 

CAA, and implementing EPA policy, the 

states were required to submit either 

revisions to their State Implementation 

Plans (SIPs) necessary to provide for 

implementation, maintenance, and 

enforcement of the 1997 8-hour ozone 

NAAQS or the 1997 PM2.5 NAAQS, or 

certifications that their existing SIPs for 

ozone and particulate matter already 

met those basic requirements. The 

statute requires that states make these 

submissions within three years after the 

promulgation of new or revised 

NAAQS. However, intervening litigation 

over the 1997 8-hour ozone NAAQS and 

the 1997 PM2.5 NAAQS created 

uncertainty about how states were to 

proceed.1 Accordingly, both EPA and 

the states were delayed in addressing 

these basic SIP requirements. 

In a consent decree with Earth Justice, 

EPA agreed to make completeness 

findings with respect to these SIP 

submissions. Pursuant to this consent 

decree, EPA published completeness 

findings for all states for the 1997 8- 

hour ozone NAAQS on March 27, 2008, 

and for all states for the 1997 PM2.5

NAAQS on October 22, 2008. 

On October 2, 2007, EPA issued 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 National 

Ambient Air Quality Standards,’’ 

making recommendations to states 

concerning these SIP submissions (the 

2007 Guidance). Within the 2007 

Guidance, EPA gave general guidance 

relevant to matters such as the timing 

and content of the submissions. 

EPA published its proposed action on 

the states’ submissions on April 28, 

2011. During the comment period on 

this proposal, EPA received three 

comment letters raising a number of 

concerns with respect to various issues 

for one or more states addressed in the 

proposal. EPA addresses the significant 

comments in this final action. 

EPA received comments concerning 

the proposed approval of the 

submission from the State of Wisconsin 

that require further evaluation. 

Accordingly, today EPA is not finalizing 

its proposed approval of that 

submission for section 110(a)(2)(C) with 

respect to two narrow issues: (i) The 

requirement for consideration of oxides 

of nitrogen (NOX); and (ii) the definition 

of ‘‘major modification’’ related to fuel 

changes for certain sources. EPA will 

address these issues in a later action. 

II. What is the scope of this final 

rulemaking? 

EPA is currently acting upon SIPs that 

address the infrastructure requirements 

of CAA section 110(a)(1) and (2) for 

ozone and PM2.5 NAAQS for various 

states across the country. Commenters 

on EPA’s recent proposals for some 

States raised concerns about EPA 

statements that it was not addressing 

certain substantive issues in the context 

of acting on the infrastructure SIP 

submissions.2 The commenters 

specifically raised concerns involving 

provisions in existing SIPs and with 

EPA’s statements that it would address 

two issues separately and not as part of 

actions on the infrastructure SIP 

submissions: (i) Existing provisions 

related to excess emissions during 

periods of start-up, shutdown, or 

malfunction at sources, that may be 

contrary to the CAA and EPA’s policies 

addressing such excess emissions 

(‘‘SSM’’); and (ii) existing provisions 

related to ‘‘director’s variance’’ or 

‘‘director’s discretion’’ that purport to 

permit revisions to SIP approved 

emissions limits with limited public 

process or without requiring further 

approval by EPA, that may be contrary 

to the CAA (‘‘director’s discretion’’). 

EPA notes that there are two other 

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Federal Register / Vol. 76, No. 134 / Wednesday, July 13, 2011 / Rules and Regulations 41077 

3For example, section 110(a)(2)(E) provides that 

states must provide assurances that they have 

adequate legal authority under state and local law 

to carry out the SIP; section 110(a)(2)(C) provides 

that states must have a substantive program to 

address certain sources as required by part C of the 

CAA; section 110(a)(2)(G) provides that states must 

have both legal authority to address emergencies 

and substantive contingency plans in the event of 

such an emergency. 

4For example, section 110(a)(2)(D)(i) requires 

EPA to be sure that each state’s SIP contains 

adequate provisions to prevent significant 

contribution to nonattainment of the NAAQS in 

other states. This provision contains numerous 

terms that require substantial rulemaking by EPA in 

order to determine such basic points as what 

constitutes significant contribution. See, e.g., ‘‘Rule 

To Reduce Interstate Transport of Fine Particulate 

Matter and Ozone (Clean Air Interstate Rule); 

Revisions to Acid Rain Program; Revisions to the 

NOX SIP Call; Final Rule,’’ 70 FR 25162 (May 12, 

2005) (defining, among other things, the phrase 

‘‘contribute significantly to nonattainment’’). 

5See, e.g., Id., 70 FR 25162, at 63–65 (May 12, 

2005) (explaining relationship between timing 

requirement of section 110(a)(2)(D) versus section 

110(a)(2)(I)). 

substantive issues for which EPA 

likewise stated that it would address the 

issues separately: (i) Existing provisions 

for minor source new source review 

programs that may be inconsistent with 

the requirements of the CAA and EPA’s 

regulations that pertain to such 

programs (‘‘minor source NSR’’); and (ii) 

existing provisions for prevention of 

significant deterioration (PSD) programs 

that may be inconsistent with current 

requirements of EPA’s ‘‘Final NSR 

Improvement Rule,’’ 67 FR 80186 

(December 31, 2002), as amended by 72 

FR 32526 (June 13, 2007) (‘‘NSR 

Reform’’). In light of the comments, EPA 

now believes that its statements in 

various proposed actions on 

infrastructure SIPs with respect to these 

four individual issues should be 

explained in greater depth with respect 

to these issues. 

EPA intended the statements in the 

proposals concerning these four issues 

merely to be informational, and to 

provide general notice of the potential 

existence of provisions within the 

existing SIPs of some states that might 

require future corrective action. EPA did 

not want states, regulated entities, or 

members of the public to be under the 

misconception that the Agency’s 

approval of the infrastructure SIP 

submission of a given state should be 

interpreted as a reapproval of certain 

types of provisions that might exist 

buried in the larger existing SIP for such 

state. Thus, for example, EPA explicitly 

noted that the Agency believes that 

some states may have existing SIP 

approved SSM provisions that are 

contrary to the CAA and EPA policy, 

but that ‘‘in this rulemaking, EPA is not 

proposing to approve or disapprove any 

existing State provisions with regard to 

excess emissions during SSM of 

operations at facilities.’’ EPA further 

explained, for informational purposes, 

that ‘‘EPA plans to address such State 

regulations in the future.’’ EPA made 

similar statements, for similar reasons, 

with respect to the director’s discretion, 

minor source NSR, and NSR Reform 

issues. EPA’s objective was to make 

clear that approval of an infrastructure 

SIP for these ozone and PM2.5 NAAQS 

should not be construed as explicit or 

implicit reapproval of any existing 

provisions that relate to these four 

substantive issues. 

Unfortunately, the commenters and 

others evidently interpreted these 

statements to mean that EPA considered 

action upon the SSM provisions and the 

other three substantive issues to be 

integral parts of acting on an 

infrastructure SIP submission, and 

therefore that EPA was merely 

postponing taking final action on the 

issue in the context of the infrastructure 

SIPs. This was not EPA’s intention. To 

the contrary, EPA only meant to convey 

its awareness of the potential for certain 

types of deficiencies in existing SIPs, 

and to prevent any misunderstanding 

that it was reapproving any such 

existing provisions. EPA’s intention was 

to convey its position that the statute 

does not require that infrastructure SIPs 

address these specific substantive issues 

in existing SIPs and that these issues 

may be dealt with separately, outside 

the context of acting on the 

infrastructure SIP submission of a state. 

To be clear, EPA did not mean to imply 

that it was not taking a full final agency 

action on the infrastructure SIP 

submission with respect to any 

substantive issue that EPA considers to 

be a required part of acting on such 

submissions under section 110(k) or 

under section 110(c). Given the 

confusion evidently resulting from 

EPA’s statements, however, we want to 

explain more fully the Agency’s reasons 

for concluding that these four potential 

substantive issues in existing SIPs may 

be addressed separately. 

The requirement for the SIP 

submissions at issue arises out of CAA 

section 110(a)(1). That provision 

requires that states must make a SIP 

submission ‘‘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 

that these SIPS are to provide for the 

‘‘implementation, maintenance, and 

enforcement’’ of such NAAQS. Section 

110(a)(2) includes a list of specific 

elements that ‘‘[e]ach such plan’’ 

submission must meet. EPA has 

historically referred to these particular 

submissions that states must make after 

the promulgation of a new or revised 

NAAQS as ‘‘infrastructure SIPs.’’ This 

specific term does not appear in the 

statute, but EPA uses the term to 

distinguish this particular type of SIP 

submission designed to address basic 

structural requirements of a SIP from 

other types of SIP submissions designed 

to address other different requirements, 

such as ‘‘nonattainment SIP’’ 

submissions required to address the 

nonattainment planning requirements of 

part D, ‘‘regional haze SIP’’ submissions 

required to address the visibility 

protection requirements of CAA section 

169A, new source review permitting 

program submissions required to 

address the requirements of part D, and 

a host of other specific types of SIP 

submissions that address other specific 

matters. 

Although section 110(a)(1) addresses 

the timing and general requirements for 

these infrastructure SIPs, and section 

110(a)(2) provides more details 

concerning the required contents of 

these infrastructure SIPs, EPA believes 

that many of the specific statutory 

provisions are facially ambiguous. In 

particular, the list of required elements 

provided in section 110(a)(2) contains a 

wide variety of disparate provisions, 

some of which pertain to required legal 

authority, some of which pertain to 

required substantive provisions, and 

some of which pertain to requirements 

for both authority and substantive 

provisions.3 Some of the elements of 

section 110(a)(2) are relatively 

straightforward, but others clearly 

require interpretation by EPA through 

rulemaking, or recommendations 

through guidance, in order to give 

specific meaning for a particular 

NAAQS.4

Notwithstanding that section 110(a)(2) 

states that ‘‘each’’ SIP submission must 

meet the list of requirements therein, 

EPA has long noted that this literal 

reading of the statute is internally 

inconsistent, insofar as section 

110(a)(2)(I) pertains to nonattainment 

SIP requirements that could not be met 

on the schedule provided for these SIP 

submissions in section 110(a)(1).5 This 

illustrates that EPA must determine 

which provisions of section 110(a)(2) 

may be applicable for a given 

infrastructure SIP submission. 

Similarly, EPA has previously decided 

that it could take action on different 

parts of the larger, general 

‘‘infrastructure SIP’’ for a given NAAQS 

without concurrent action on all 

subsections, such as section 

110(a)(2)(D)(i), because the Agency 

bifurcated the action on these latter 

‘‘interstate transport’’ provisions within 

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41078 Federal Register / Vol. 76, No. 134 / Wednesday, July 13, 2011 / Rules and Regulations 

6EPA issued separate guidance to states with 

respect to SIP submissions to meet section 

110(a)(2)(D)(i) for the 1997 ozone and 1997 PM2.5

NAAQS. See, ‘‘Guidance for State Implementation 

Plan (SIP) Submissions to Meet Current 

Outstanding Obligations Under Section 

110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5

National Ambient Air Quality Standards,’’ from 

William T. Harnett, Director Air Quality Policy 

Division OAQPS, to Regional Air Division Director, 

Regions I–X, dated August 15, 2006. 

7For example, implementation of the 1997 PM2.5

NAAQS required the deployment of a system of 

new monitors to measure ambient levels of that new 

indicator species for the new NAAQS. 

8See, ‘‘Guidance on SIP Elements Required 

Under Section 110(a)(1) and (2) for the 1997 8-hour 

Ozone and PM2.5 National Ambient Air Quality 

Standards,’’ from William T. Harnett, Director Air 

Quality Policy Division, to Air Division Directors, 

Regions I–X, dated October 2, 2007 (the ‘‘2007 

Guidance’’). EPA issued comparable guidance for 

the 2006 PM2.5 NAAQS entitled ‘‘Guidance on SIP 

Elements Required Under Sections 110(a)(1) and (2) 

for the 2006 24-Hour Fine Particle (PM2.5) National 

Ambient Air Quality Standards (NAAQS),’’ from 

William T, Harnett, Director Air Quality Policy 

Division, to Regional Air Division Directors, 

Regions I-X, dated September 25, 2009 (the ‘‘2009 

Guidance’’). 

9 Id., at page 2. 

10 Id., at attachment A, page 1. 

11 Id., at page 4. In retrospect, the concerns raised 

by commenters with respect to EPA’s approach to 

some substantive issues indicates that the statute is 

not so ‘‘self explanatory,’’ and indeed is sufficiently 

ambiguous that EPA needs to interpret it in order 

to explain why these substantive issues do not need 

to be addressed in the context of infrastructure SIPs 

and may be addressed at other times and by other 

means. 

section 110(a)(2) and worked with states 

to address each of the four prongs of 

section 110(a)(2)(D)(i) with substantive 

administrative actions proceeding on 

different tracks with different 

schedules.6 This illustrates that EPA 

may conclude that subdividing the 

applicable requirements of section 

110(a)(2) into separate SIP actions may 

sometimes be appropriate for a given 

NAAQS where a specific substantive 

action is necessitated, beyond a mere 

submission addressing basic structural 

aspects of the state’s SIP. Finally, EPA 

notes that not every element of section 

110(a)(2) would be relevant, or as 

relevant, or relevant in the same way, 

for each new or revised NAAQS and the 

attendant infrastructure SIP submission 

for that NAAQS. For example, the 

monitoring requirements that might be 

necessary for purposes of section 

110(a)(2)(B) for one NAAQS could be 

very different than what might be 

necessary for a different pollutant. Thus, 

the content of an infrastructure SIP 

submission to meet this element from a 

state might be very different for an 

entirely new NAAQS, versus a minor 

revision to an existing NAAQS.7

Similarly, EPA notes that other types 

of SIP submissions required under the 

statute also must meet the requirements 

of section 110(a)(2), and this also 

demonstrates the need to identify the 

applicable elements for other SIP 

submissions. For example, 

nonattainment SIPs required by part D 

likewise have to meet the relevant 

subsections of section 110(a)(2) such as 

section 110(a)(2)(A) or (E). By contrast, 

it is clear that nonattainment SIPs 

would not need to meet the portion of 

section 110(a)(2)(C) that pertains to part 

C, i.e., the PSD requirements applicable 

in attainment areas. Nonattainment SIPs 

required by part D also would not need 

to address the requirements of section 

110(a)(2)(G) with respect to emergency 

episodes, as such requirements would 

not be limited to nonattainment areas. 

As this example illustrates, each type of 

SIP submission may implicate some 

subsections of section 110(a)(2) and not 

others. 

Given the potential for ambiguity of 

the statutory language of section 

110(a)(1) and (2), EPA believes that it is 

appropriate for EPA to interpret that 

language in the context of acting on the 

infrastructure SIPs for a given NAAQS. 

Because of the inherent ambiguity of the 

list of requirements in section 110(a)(2), 

EPA has adopted an approach in which 

it reviews infrastructure SIPs against 

this list of elements ‘‘as applicable.’’ In 

other words, EPA assumes that Congress 

could not have intended that each and 

every SIP submission, regardless of the 

purpose of the submission or the 

NAAQS in question, would meet each 

of the requirements, or meet each of 

them in the same way. EPA elected to 

use guidance to make recommendations 

for infrastructure SIPs for these NAAQS. 

On October 2, 2007, EPA issued 

guidance making recommendations for 

the infrastructure SIP submissions for 

both the 1997 8-hour ozone NAAQS and 

the 1997 PM2.5 NAAQS.8 Within this 

guidance document, EPA described the 

duty of states to make these submissions 

to meet what the Agency characterized 

as the ‘‘infrastructure’’ elements for 

SIPs, which it further described as the 

‘‘basic SIP requirements, including 

emissions inventories, monitoring, and 

modeling to assure attainment and 

maintenance of the standards.’’ 9 As 

further identification of these basic 

structural SIP requirements, 

‘‘attachment A’’ to the guidance 

document included a short description 

of the various elements of section 

110(a)(2) and additional information 

about the types of issues that EPA 

considered germane in the context of 

such infrastructure SIPs. EPA 

emphasized that the description of the 

basic requirements listed on attachment 

A was not intended ‘‘to constitute an 

interpretation of’’ the requirements, and 

was merely a ‘‘brief description of the 

required elements.’’ 10 EPA also stated 

its belief that with one exception, these 

requirements were ‘‘relatively self 

explanatory, and past experience with 

SIPs for other NAAQS should enable 

States to meet these requirements with 

assistance from EPA Regions.’’ 11 For the 

one exception to that general 

assumption, however, i.e., how states 

should proceed with respect to the 

requirements of section 110(a)(2)(G) for 

the 1997 PM2.5 NAAQS, EPA gave much 

more specific recommendations. But for 

other infrastructure SIP submittals, and 

for certain elements of the submittals for 

the 1997 PM2.5 NAAQS, EPA assumed 

that each state would work with its 

corresponding EPA regional office to 

refine the scope of a state’s submittal 

based on an assessment of how the 

requirements of section 110(a)(2) should 

reasonably apply to the basic structure 

of the State’s SIP for the NAAQS in 

question. 

Significantly, the 2007 Guidance did 

not explicitly refer to the SSM, 

director’s discretion, minor source NSR, 

or NSR Reform issues as among specific 

substantive issues EPA expected states 

to address in the context of the 

infrastructure SIPs, nor did EPA give 

any more specific recommendations 

with respect to how states might address 

such issues even if they elected to do so. 

The SSM and director’s discretion 

issues implicate section 110(a)(2)(A), 

and the minor source NSR and NSR 

Reform issues implicate section 

110(a)(2)(C). In the 2007 Guidance, 

however, EPA did not indicate to states 

that it intended to interpret these 

provisions as requiring a substantive 

submission to address these specific 

issues in the context of the 

infrastructure SIPs for these NAAQS. 

Instead, EPA’s 2007 Guidance merely 

indicated its belief that the states should 

make submissions in which they 

established that they have the basic SIP 

structure necessary to implement, 

maintain, and enforce the NAAQS. EPA 

believes that states can establish that 

they have the basic SIP structure, 

notwithstanding that there may be 

potential deficiencies within the 

existing SIP. Thus, EPA’s proposals 

mentioned these issues not because the 

Agency considers them issues that must 

be addressed in the context of an 

infrastructure SIP as required by section 

110(a)(1) and (2), but rather because 

EPA wanted to be clear that it considers 

these potential existing SIP problems as 

separate from the pending infrastructure 

SIP actions. 

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12EPA has recently issued a SIP call to rectify a 

specific SIP deficiency related to the SSM issue. 

See, ‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revision,’’ 74 FR 21639 (April 

18, 2011). 

13EPA has recently utilized this authority to 

correct errors in past actions on SIP submissions 

related to PSD programs. See, ‘‘Limitation of 

Approval of Prevention of Significant Deterioration 

Provisions Concerning Greenhouse Gas EmittingSources in State Implementation Plans; Final Rule,’’ 

75 FR 82,536 (December 30, 2010). EPA has 

previously used its authority under CAA 110(k)(6) 

to remove numerous other SIP provisions that the 

Agency determined it had approved in error. See, 

e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641 

(June 27, 1997) (corrections to American Samoa, 

Arizona, California, Hawaii, and Nevada SIPs); 69 

FR 67062 (November 16, 2004) (corrections to 

California SIP); and 74 FR 57051 (November 3, 

2009) (corrections to Arizona and Nevada SIPs). 

14EPA has recently disapproved a SIP submission 

from Colorado on the grounds that it would have 

included a director’s discretion provision 

inconsistent with CAA requirements, including 

section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 

(July 21, 2010) (proposed disapproval of director’s 

discretion provisions); 76 FR 4540 (Jan. 26, 2011) 

(final disapproval of such provisions). 

15The most recent revisions to the 8-hour ground 

level ozone NAAQS was published in the Federal 

Register on March 27, 2008 (73 FR 16436), and the 

most recent revisions to the 24-hour PM2.5 NAAQS 

was published in the Federal Register on October 

17, 2006 (71 FR 61144). 

EPA believes that this approach to the 

infrastructure SIP requirement is 

reasonable, because it would not be 

feasible to read section 110(a)(1) and (2) 

to require a top to bottom, stem to stern, 

review of each and every provision of an 

existing SIP merely for purposes of 

assuring that the state in question has 

the basic structural elements for a 

functioning SIP for a new or revised 

NAAQS. Because SIPs have grown by 

accretion over the decades as statutory 

and regulatory requirements under the 

CAA have evolved, they may include 

some outmoded provisions and 

historical artifacts that, while not fully 

up to date, nevertheless may not pose a 

significant problem for the purposes of 

‘‘implementation, maintenance, and 

enforcement’’ of a new or revised 

NAAQS when EPA considers the overall 

effectiveness of the SIP. To the contrary, 

EPA believes that a better approach is 

for EPA to determine which specific SIP 

elements from section 110(a)(2) are 

applicable to an infrastructure SIP for a 

given NAAQS, and to focus attention on 

those elements that are most likely to 

need a specific SIP revision in light of 

the new or revised NAAQS. Thus, for 

example, EPA’s 2007 Guidance 

specifically directed states to focus on 

the requirements of section 110(a)(2)(G) 

for the 1997 PM2.5 NAAQS because of 

the absence of underlying EPA 

regulations for emergency episodes for 

this NAAQS and an anticipated absence 

of relevant provisions in existing SIPs. 

Finally, EPA believes that its 

approach is a reasonable reading of 

section 110(a)(1) and (2) because the 

statute provides other avenues and 

mechanisms to address specific 

substantive deficiencies in existing SIPs. 

These other statutory tools allow the 

Agency to take appropriate tailored 

action, depending upon the nature and 

severity of the alleged SIP deficiency. 

Section 110(k)(5) authorizes EPA to 

issue a ‘‘SIP call’’ whenever the Agency 

determines that a state’s SIP is 

substantially inadequate to attain or 

maintain the NAAQS, to mitigate 

interstate transport, or otherwise to 

comply with the CAA.12 Section 

110(k)(6) authorizes EPA to correct 

errors in past actions, such as past 

approvals of SIP submissions.13

Significantly, EPA’s determination that 

an action on the infrastructure SIP is not 

the appropriate time and place to 

address all potential existing SIP 

problems does not preclude the 

Agency’s subsequent reliance on 

provisions in section 110(a)(2) as part of 

the basis for action at a later time. For 

example, although it may not be 

appropriate to require a state to 

eliminate all existing inappropriate 

director’s discretion provisions in the 

course of acting on the infrastructure 

SIP, EPA believes that section 

110(a)(2)(A) may be among the statutory 

bases that the Agency cites in the course 

of addressing the issue in a subsequent 

action.14

III. What is our response to comments 

received on the notice of proposed 

rulemaking? 

The public comment period for EPA’s 

proposal to approve some elements and 

conditionally approve other elements of 

certifications submitted by the Region 5 

states closed on May 31, 2011. EPA 

received three comment letters; a 

synopsis of the significant individual 

comments as well as EPA’s response to 

each comment is discussed below. 

Comment 1: One commenter objected 

to EPA’s proposed approvals of the 

states’ SIPs on the ground that the states 

are not adequately notifying the public 

of health risks related to the most recent 

ozone and PM2.5 NAAQS. According to 

the commenter, the SIPs are not 

consistent with section 110(a)(2)(J), Subelement 2: Public Notification, and 

EPA’s approval of the submissions 

violates section 110(l). The commenter 

argued that it ‘‘is wrong for States 

inform the public that the air is ‘safe’ 

based on the 1997 ozone and PM2.5

NAAQS, particularly when EPA has 

determined that concentrations of 

ground-level ozone above 75 parts per 

billion (ppb) and concentrations of 

PM2.5 above 35 micrograms per cubic 

meter (μg/m3) are unsafe.’’ The 

commenter continued that ‘‘there is no 

reason why States should not be 

informing the public of air pollution 

dangers based on the 75 ppb ozone 

NAAQS and the 35 μg/m3 PM2.5

NAAQS.’’ The commenter urged EPA to 

require states to inform the public of 

‘‘unsafe air pollution levels based on 

EPA’s official understanding of current 

public health science.’’ 

Response 1: EPA disagrees with the 

commenter’s view that the existing SIPs 

of these states are not sufficient for 

purposes of the 1997 8-hour ozone 

NAAQS and the 1997 PM2.5 NAAQS, 

and that approval thereof is inconsistent 

with section 110(l). In the proposed 

rulemaking, EPA concluded that each of 

the Region 5 states ‘‘* * * has met the 

requirements of this portion of section 

110(a)(2)(J) with respect to the 1997 

ozone and PM2.5 NAAQS.’’ As explained 

above, in these actions EPA is only 

addressing the 1997 8-hour ozone 

NAAQS and the 1997 PM2.5 NAAQS, 

and is not taking action with respect to 

any other NAAQS. 

EPA agrees with the commenter that 

these NAAQS are not as protective as 

needed for public health and welfare, as 

shown by EPA’s more recent 

promulgation of new NAAQS for both 

ground level ozone and particulate 

matter based on new or revised health 

assessments.15 Nevertheless, all of the 

Region 5 states’ submittals at issue in 

this action were intended to satisfy the 

infrastructure SIP requirements in 

relation to the 1997 8-hour ozone 

NAAQS and 1997 PM2.5 NAAQS. EPA’s 

action here only addresses the 

requirements of section 110(a)(1) and (2) 

in the context of these NAAQS, and not 

of any subsequent NAAQS. EPA will be 

taking separate actions on the Region 5 

states’ submissions for section 

110(a)(1)and (2) with respect to the 

revised ozone and PM2.5 NAAQS. In 

those later actions, EPA will evaluate 

the states’ satisfaction of applicable 

elements of section 110(a)(2), including 

section 110(a)(2)(J), based on the 

applicable NAAQS. 

As a further point of information, EPA 

observes that all Region 5 states 

participate in the AIRNOW program, 

which reports air quality according to 

the current promulgated indices. Thus, 

members of the public do have access to 

information concerning the ambient air 

quality in their states, and this 

information is given with respect to the 

most recent ozone and PM2.5 NAAQS. 

EPA believes that the availability of this 

information serves to address the 

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16See, e.g., ‘‘Completeness Findings for Section 

110(a) State Implementation Plans for the 8-hour 

Ozone NAAQS, 73 FR 16205 (March 27, 2008). EPA 

specifically noted that section 110(a)(2)(D)(i) was 

being addressed in separate SIP actions. Id., 73 FR 

at 16206, at footnote 1. 

commenter’s concerns with respect to 

public information. 

Finally, EPA disagrees with the 

commenter’s view of the applicability of 

section 110(l) to these actions on 

infrastructure SIPs. EPA agrees that after 

the Agency promulgates a new or 

revised NAAQS, subsequent SIP 

revisions should generally be evaluated 

for compliance with section 110(l) in 

light of the existence of any such new 

or revised NAAQS. However, section 

110(l) is more typically a concern with 

respect to revisions to an existing SIP in 

which there could be a relaxation of a 

SIP approved provision in a way that 

would interfere with attainment or 

maintenance of the NAAQS or any other 

applicable requirement of the CAA. In 

this action, however, EPA is merely 

approving a new submission that does 

not purport to subtract from the existing 

SIP as previously approved by the 

Agency. These submissions are 

intended to assure that the state’s SIP 

meets the requirements with respect to 

the specific NAAQS at issue, i.e., the 

1997 8-hour ozone NAAQs and the 1997 

PM2.5 NAAQS. 

Comment 2: One commenter objected 

to EPA’s proposed approval of the 

submissions from several states on the 

grounds that the SIPs of each state 

contain impermissible provisions. The 

commenter asserted that the states of 

Wisconsin, Indiana, and Illinois have 

SSM exemptions in regulations within 

their existing SIPs that are in conflict 

with EPA’s interpretation of the CAA. 

The commenters argued that such 

provisions are contrary to section 110, 

and that until such provisions are 

removed, the SIPs do not meet the 

requirements of section 110. 

Response 2: EPA disagrees with the 

commenter’s apparent conclusion that if 

a state’s existing SIP contains any 

arguably illegal SSM provision, then 

EPA cannot approve the infrastructure 

SIP submission of that state. As 

discussed in more detail in section II of 

this final rulemaking, ‘‘What is the 

scope of this final rulemaking?,’’ EPA 

does not agree that action upon an 

infrastructure SIP required by section 

110(a)(1) and (2) requires that EPA 

address any existing SSM provisions. 

EPA shares the commenter’s concerns 

that certain existing SSM provisions 

may be contrary to the CAA and existing 

Agency guidance, and that such 

provisions can have an adverse impact 

on air quality control efforts in a given 

state. As stated in the proposal, EPA 

plans to address such provisions in the 

future, and in the meantime encourages 

any state having a deficient SSM 

provision to take steps to correct it as 

soon as possible. 

Comment 3: The same commenter 

also objected to EPA’s proposed 

approvals on the grounds that the 

existing SIPs of two states contain 

another form of impermissible provision 

within their regulations. The commenter 

asserted that the states of Wisconsin and 

Illinois have director’s discretion 

provisions in their respective 

regulations that allow the director of 

their respective environmental 

protection agencies to allow violations 

of SIP approved emissions limits by 

sources under certain circumstances. 

Response 3: EPA also disagrees with 

the commenter’s apparent conclusion 

that if a state’s existing SIP contains any 

arguably illegal director’s discretion or 

director’s variance provision, then EPA 

cannot approve the infrastructure SIP 

submission of that state. As discussed in 

more detail in section II of this final 

rulemaking, ‘‘What is the scope of this 

final rulemaking?,’’ EPA does not agree 

that action upon an infrastructure SIP 

required by section 110(a)(1) and (2) 

requires that EPA address any existing 

director’s discretion provisions. 

EPA shares the commenter’s concerns 

that certain existing director’s discretion 

provisions may be contrary to the CAA 

and existing Agency guidance, and that 

such provisions can have an adverse 

impact on air quality control efforts in 

a given state. As stated in the proposal, 

EPA plans to take action in the future 

to address such provisions, and in the 

meantime encourages any state having a 

deficient director’s discretion or 

director’s variance provision to take 

steps to correct it as soon as possible. 

Comment 4: One commenter objected 

to EPA’s proposed approval because it 

did not explain why the Agency was not 

acting on the requirements of section 

110(a)(2)(D)(i) in the context of the 

infrastructure SIPs for the 1997 8-hour 

ozone NAAQS and the 1997 PM2.5

NAAQS. The commenter argued that 

EPA provided no basis for, and 

professed its own lack of awareness of 

a basis for, the exclusion of section 

110(a)(2)(D)(i) from this action. The 

commenter implied that because EPA 

was not addressing section 

110(a)(2)(D)(i) in this specific action, it 

renders the action on the other elements 

of section 110(a)(2) illegitimate. 

Response 4: As previously explained, 

EPA bifurcated action on section 

110(a)(2)(D)(i) from the other applicable 

infrastructure SIP requirements of 

section 110(a)(2) for the 1997 8-hour 

ozone NAAQS and the 1997 PM2.5

NAAQS. This approach dates back to 

2005 when EPA entered into a consent 

decree with Environmental Defense 

Fund which required EPA to make 

completeness findings with respect to 

section 110(a)(2)(D)(i) by March 15, 

2005, and which required EPA to make 

completeness findings with respect to 

other applicable requirements of section 

110(a)(2) by December 15, 2007, for the 

1997 ozone NAAQS, and by October 5, 

2008, for the 1997 PM2.5 NAAQS. The 

findings notice that announced EPA’s 

completeness determinations for the 

infrastructure SIP submissions for the 

1997 8-hour ozone NAAQS and the 

1997 PM2.5 NAAQS clearly articulated 

which elements of section 110(a)(2) 

were relevant to those specific 

submissions.16 In addition, EPA issued 

two separate guidance documents 

making recommendations for SIP 

submissions to meet section 

110(a)(2)(D)(i) and for the other 

applicable requirements of section 

110(a)(2) for these NAAQS. As a result, 

states made one or more separate 

submissions to address the substantive 

requirements of section 110(a)(2)(D)(i) 

that are separate from, and outside the 

scope of, the SIP submissions that are at 

issue in this action. 

Comment 5: One commenter argued 

that the air pollution enforcement 

program in Indiana is not sufficient, and 

implies that this is a basis for EPA not 

to approve the infrastructure SIP 

submission from the state. According to 

the commenter, press reports indicate 

that the State is not aggressively 

enforcing air pollution regulations. In 

support of its concerns, the commenter 

referred to an unspecified letter from 

EPA to IDEM in which EPA expressed 

concerns about changes to the 

enforcement program and funding of the 

enforcement program in Indiana. In 

addition, the commenter asserted that 

IDEM has an enforcement policy that 

requires a higher threshold for 

enforcement showing adverse health 

impacts as a result of a violation and 

that this threshold is inconsistent with 

protection of public health because of 

the difficulty of proving causation with 

respect to health impacts. 

Response 5: EPA acknowledges that 

concerns have been raised about 

enforcement of air pollution programs 

in Indiana, including concerns raised by 

EPA in a June 24, 2009 letter to David 

Pippen, Policy Director in the Office of 

the Indiana Governor. However, EPA 

disagrees that these concerns rise to the 

level of demonstrating that the state’s 

SIP is insufficient to meet the basic 

requirements of section 110(a)(2)(A) and 

(E) with respect to enforcement. 

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17 It is important to note that the state’s exercise 

of enforcement discretion in the case of a particular 

violation does not affect potential enforcement by 

EPA or other parties. Thus, the state’s policies with 

respect to what types of violations warrant 

enforcement action by the state do not necessarily 

affect the enforceability of the SIP itself. 

18The guidance that is being referred to can be 

found here: http://dnr.wi.gov/air/pdf/ 

wdnrguidance_v71final.pdf 

The commenter’s primary objections 

with respect to enforcement in Indiana 

go to matters that are properly construed 

as questions of ‘‘enforcement 

discretion.’’ In other words, EPA 

believes that certain decisions about 

how best to direct enforcement 

resources, what sources to investigate, 

what types of violations warrant more 

attention, etc., are largely matters of 

discretion that a state may determine.17

EPA agrees that such enforcement 

discretion, if taken to extremes, could 

call into question whether a state was 

effectively meeting its obligations under 

the CAA. EPA does not see evidence of 

that in this case. Similarly, questions of 

the adequacy of resources for effective 

enforcement are largely matters of state 

discretion and would not be a basis for 

disapproval action by EPA unless there 

were clear evidence that the absence of 

resources rose to the level that the state 

was not capable of fulfilling its 

obligations under the CAA. EPA does 

not see evidence of that in this case. In 

short, EPA does not see a basis for 

disapproval of the infrastructure SIP 

submissions by Indiana based on the 

questions raised by the commenter. 

EPA continues to monitor IDEM’s air 

enforcement program through monthly 

conference calls and reviews of 

enforcement data submitted by IDEM. 

EPA confirms that IDEM inspectors are 

meeting EPA’s Compliance Monitoring 

Strategy requirements and furthermore, 

enforcement under IDEM’s reorganized 

Compliance and Enforcement Branch 

has shown an increase in the number of 

enforcement actions timeliness of 

resolution. 

EPA concludes that, in the context of 

acting on the infrastructure SIPs for the 

1997 8-hour ozone and 1997 PM2.5

NAAQS, the air pollution enforcement 

program in Indiana is consistent with 

the basic requirements of section 

110(a)(1) and (2) of the CAA. In the 

event that concerns with respect to 

adequate enforcement of the air 

pollution program in the state arise in 

the future, EPA could address such 

concerns using appropriate authorities 

under the CAA. 

Comment 6: One commenter argued 

that Illinois has state law provisions that 

undermine enforcement of SIP 

requirements. The commenter asserts 

that the enforcement of air pollution 

regulations in Illinois ‘‘is undermined 

by a convoluted interpretation of State 

law, including a lengthy appeals process 

and ‘automatic stay’ provisions that are 

applicable to Illinois Pollution Control 

Board hearings.’’ According to the 

commenter, permittees who challenge 

their permits benefit by stays of the 

challenged permit provisions that can 

provide de facto variances from SIP 

requirements. Implicitly, the commenter 

argued that this issue would preclude 

EPA’s approval of the infrastructure SIP 

submission by Illinois for the 1997 

8-hour ozone NAAQS and the 1997 

PM2.5 NAAQS. 

Response 6: EPA disagrees that the 

issue raised by the commenter requires 

EPA to disapprove the submission by 

Illinois. EPA’s review of the 

infrastructure SIP is intended to 

evaluate whether the state’s SIP 

contains the basic requirements for 

implementation, maintenance, and 

enforcement of the NAAQS in question. 

The commenter’s concerns go to a very 

specific issue resulting from 

interpretations of state law. EPA 

believes that this issue has already been 

resolved with the state. 

On March 3, 2011, EPA completed a 

review of Illinois EPA’s enforcement 

program in the context of the CAA. EPA 

is committed to working with the State 

to address any problems that were 

documented in the review. With respect 

to the automatic stay provisions in 

Illinois, the Illinois State legislature 

amended the Illinois Environmental 

Protection Act (415 ILCS 5/) to address 

this deficiency. The Governor of Illinois 

signed this legislation on June 20, 2010. 

This legislation eliminated the 

‘automatic stay’ provisions noted by the 

commenter; therefore, EPA believes that 

all concerns with respect to this issue 

have been resolved with respect to 

approval of Illinois’ infrastructure SIP 

for the 1997 8-hour ozone and 1997 

PM2.5 NAAQS. 

Comment 7: One commenter asserted 

that Wisconsin is not implementing its 

SIP sufficiently to comply with 40 CFR 

51.160 and section 110(a) of the CAA. 

The commenter took issue with three 

aspects of Wisconsin’s permitting 

program, particularly with respect to 

modeling. First, the commenter alleged 

that WDNR is effectively exempting 

sources from demonstrating, through 

modeling, that emissions from those 

sources will not cause NAAQS 

violations or prevent NAAQS 

maintenance. In support of this claim, 

the commenter claimed that ‘‘* * * 

DNR’s ‘guidance’ 18 on modeling notes 

that sources can avoid modeling in 

nonattainment areas if they obtain 

offsets or model below the SIL—despite 

no SIP provision for Wisconsin allowing 

such exemptions to Wis. Stat. 

§ 285.63(1). Wisconsin DNR’s ‘guidance’ 

also exempts all operating permits for 

sources in nonattainment areas from the 

clea[r] requirement to demonstrate 

compliance with (and non-prevention of 

maintenance of) NAAQS as a condition 

of permit approval for all operating 

permits for all sources (not merely those 

in attainment areas) in Wis. Stat. 

§ 285.63(1).’’ 

Second, the commenter asserted that 

WDNR has not been modeling 

compliance with PM2.5 for registration 

permits, and has supported the claim by 

citing Wis. Stat. § 285.63. As evidence 

for this claim, the commenter pointed to 

a recent decision by a state 

Administrative Law Judge concerning a 

failure to model compliance with the 

PM2.5 NAAQS. The commenter claimed 

that the State continues to fail to do so. 

Third, the commenter claimed that 

WDNR does not model ozone impacts, 

i.e., ozone NAAQS compliance, in 

contravention of the SIP requirement to 

demonstrate compliance with all 

NAAQS as a condition of permit 

issuance. Moreover, the commenter 

further asserted that to its knowledge 

‘‘DNR has never analyzed the impacts of 

facilities on ozone during permitting— 

as it is required to do pursuant to 42 

U.S.C. 7410(a), 40 CFR 51.160, 51.166 

and Wis. Stat. § 285.63(1). In fact, DNR’s 

guidance states explicitly that it does 

not model for ozone impacts.’’ 

Response 7: EPA disagrees with the 

commenter’s conclusions on each point. 

First, with respect to the claim that the 

state’s guidance improperly ‘‘exempts’’ 

sources from modeling, EPA disagrees 

with the commenter’s conclusions. 

EPA’s regulations at 40 CFR part 51 

section 160(a) and (b) require that states 

have a procedure to establish whether a 

source will, inter alia, interfere with 

attainment or maintenance of the 

NAAQS. The guidance cited by the 

commenter is not inconsistent with this 

requirement, and EPA’s regulations do 

not preclude the appropriate use of 

offsets or SILs as a means to determine 

that there will not be such an impact. 

Therefore, the commenter’s objections 

do not indicate that the State’s 

infrastructure SIP is inconsistent with 

the applicable requirements of section 

110(a)(1) and (2). 

Second, the argument that the 

commenter made with respect to the 

decision of the Administrative Law 

Judge is a matter of concern, but does 

not establish that the State is failing to 

conduct the necessary analysis in 

connection with all permits. Moreover, 

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19See, ‘‘Approval and Promulgation of 

Implementation Plans; Wisconsin,’’ 64 FR 28745 

(May 27, 1999). 

20The commenter cited Sierra Club v. EPA, 356 

F.3d 296 (D.C. Cir. 2004), for the proposition that 

EPA cannot use a section 110(k)(4) conditional 

approval to approve plans that do ‘‘nothing more 

than promise to do tomorrow what the Act requires 

today.’’ EPA disagrees with this overbroad 

contention. So long as the conditional approval 

meets the statutory requirements of section 

110(k)(4), EPA believes that it may be appropriate 

to give a conditional approval to a state allowing 

it to rectify a deficiency in a submission that would 

otherwise constitute a basis for a disapproval, if the 

state were not willing to commit to rectify the 

deficiency within the requisite time. To read the 

statute to prohibit use of section 110(k)(4) in such 

circumstances, as the commenters advocate, would 

render it a legal nullity. 

the decision in question relates to the 

minor source NSR program, and as 

explained in section II, minor source 

NSR is an issue that EPA considers 

outside of the scope of infrastructure 

SIP evaluations. Therefore, any 

evaluation of Wisconsin’s minor source 

NSR program will be conducted 

independently of this rulemaking. 

Finally, in response to the 

commenter’s third point, the PSD 

regulations require an ambient impact 

analysis for ozone for proposed major 

stationary sources and major 

modifications to obtain a PSD permit 

(40 CFR 51.166 (b)(23)(i), (i)(5)(i)(f), (k), 

(l) and (m) and 40 CFR 52.21 (b)(23)(i), 

(i)(5)(i)(f), (k), (l) and (m)), but not 

necessarily modeling in all cases. The 

regulations at 40 CFR 51.166(l) state that 

for air quality models the SIP shall 

provide for procedures which specify 

that: 

(1) All applications of air quality 

modeling involved in this subpart shall 

be based on the applicable models, data 

bases, and other requirements specified 

in Appendix W of this part (Guideline 

on Air Quality Models). 

(2) Where an air quality model 

specified in Appendix W of this part 

(Guideline on Air Quality Models) is 

inappropriate, the model may be 

modified or another model substituted. 

Such a modification or substitution of a 

model may be made on a case-by-case 

basis or, where appropriate, on a generic 

basis for a specific State program. 

Written approval of the Administrator 

must be obtained for any modification 

or substitution. In addition, use of a 

modified or substituted model must be 

subject to notice and opportunity for 

public comment under procedures set 

forth in § 51.102. 

These parts of 40 CFR Part 51 and 52 

are the umbrella SIP components that 

states have either adopted by reference 

or the states have been approved and 

delegated authority to incorporate the 

PSD requirements of the CAA. As 

discussed above, these Part 51 and 52 

PSD provisions refer to 40 CFR Part 51, 

Appendix W for the appropriate method 

to utilize for the ambient impact 

assessment. 40 CFR Part 51, Appendix 

W is the Guideline on Air Quality 

models and Section 1.0.a. states: 

The guideline recommends air quality 

modeling techniques that should be 

applied to State Implementation Plan 

(SIP) revisions for existing sources and 

to new source review (NSR), including 

prevention of significant deterioration 

(PSD). {footnotes not included} 

Applicable only to criteria air 

pollutants, it is intended for use by EPA 

Regional Offices in judging the 

adequacy of modeling analyses 

performed by EPA, State and local 

agencies, and by industry. * * * The 

Guideline is not intended to be a 

compendium of modeling techniques. 

Rather, it should serve as a common 

measure of acceptable technical analysis 

when supported by sound scientific 

judgment. 

Appendix W Section 5.2.1. includes 

the Guideline recommendations for 

models to be utilized in assessing 

ambient air quality impacts for ozone. 

Specifically, Section 5.2.1.c states: 

Estimating the Impact of Individual 

Sources. Choice of methods used to 

assess the impact of an individual 

source depends on the nature of the 

source and its emissions. Thus, model 

users should consult with the Regional 

Office to determine the most suitable 

approach on a case-by-case basis 

(subsection 3.2.2). 

Appendix W Section 5.2.1.c provides 

that the state and local permitting 

authorities and permitting applicants 

should work with the appropriate EPA 

Regional Office on a case-by-case basis 

to determine an adequate method for 

performing an air quality analysis for 

assessing ozone impacts. Due to the 

complexity of modeling ozone and the 

dependency on the regional 

characteristics of atmospheric 

conditions, EPA believes this is an 

appropriate approach rather than 

specifying a method for assessing single 

source ozone impacts, which may not be 

appropriate in all circumstances. 

Instead, the choice of method ‘‘depends 

on the nature of the source and its 

emissions. Thus, model users should 

consult with the Regional Office 

* * *.’’ Appendix W Section 5.2.1.c. 

Therefore, EPA continues to believe it is 

appropriate for permitting authorities to 

consult and work with EPA Regional 

Offices as described in Appendix W, 

including section 3.0.b and c, 3.2.2, and 

3.3, to determine the appropriate 

approach to assess ozone impacts for 

each PSD required evaluation. 

EPA has previously approved the 

State’s PSD program.19 EPA observes 

that Wisconsin routinely consults with 

staff in the Region 5 Office to examine 

the impacts of ozone from specific 

sources on a case-by-case basis for 

permitting purposes. Moreover, EPA 

observes that the modeling guidance 

referenced by the commenter is not an 

approved part of Wisconsin’s SIP. Thus, 

the commenter has not demonstrated 

that we should not approve this 

infrastructure SIP submission. 

Comment 8: One commenter objected 

to EPA’s proposed conditional approval 

of the submissions of Indiana, Michigan, 

and Ohio, with respect to section 

110(a)(2)(C) based upon a commitment 

of each state to update its respective SIP 

to eliminate the use of PM10 as a 

surrogate for PM2.5 in its PSD program. 

The commenter argued that this use of 

a conditional approval is inappropriate 

because it would allow states to 

continue to use a PM10 surrogacy policy 

that EPA has explicitly determined may 

not be used by states after May 16, 2011. 

The commenter further asserted that 

aside from the inappropriate use of 

conditional approval, any approval of 

SIPs that rely on the use of PM10 as a 

surrogate for PM2.5 would be contrary to 

the CAA for a variety of legal and 

factual reasons. 

Response 8: Based on an evaluation of 

the concerns raised by the commenter, 

EPA has concluded that a conditional 

approval is not appropriate in these 

specific facts and circumstances. 

Congress has explicitly authorized EPA 

to use conditional approvals under 

section 110(k)(4), provided that states 

make a commitment to adopt specific 

measures by a date certain within one 

year. As noted by the commenter, the 

courts have confirmed that conditional 

approvals are an available course of 

action under section 110(k), but only if 

the statutory conditions for such a 

conditional approval have been met. 

In this instance, EPA believed that the 

states had made commitments to take 

sufficiently ‘‘specific’’ actions within 

the statutorily allotted time, by 

committing to make a specified SIP 

submission that would eliminate the use 

of PM10 as a surrogate for PM2.5 by a 

date certain.20 However, the 

commenter’s concerns go not to whether 

the commitments were specific enough, 

but rather to whether a conditional 

approval is appropriate at all, in light of 

other EPA determinations with respect 

to when states must cease using the 

PM10 surrogate policy. EPA agrees that 

its own determination with respect to 

when states must cease using the PM10

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Federal Register / Vol. 76, No. 134 / Wednesday, July 13, 2011 / Rules and Regulations 41083 

21 In addition to the information provided in this 

table for the State of Wisconsin, EPA reiterates once 

again that we are not finalizing any action with 

respect to the definition of ‘‘major modification’’ 

related to fuel changes for certain sources in 

Wisconsin. EPA will address this issue, as well as 

Wisconsin’s PSD provisions that include NOX as a 

precursor to ozone, in a separate action. 

surrogacy policy is relevant to whether 

a conditional approval is the correct 

course of action. Section 110(k)(4) 

provides that EPA ‘‘may’’ approve a SIP 

conditionally, thereby indicating that 

EPA has discretion to determine that a 

given substantive issue is or is not 

suitable for a conditional approval. 

After considering the commenter’s 

concerns, EPA has concluded that a 

conditional approval is not appropriate 

in these circumstances. 

In order to address the commenter’s 

substantive concern about continued 

use of the PM10 surrogate policy after 

May 16, 2011, EPA asked the states of 

Indiana, Michigan, and Ohio to clarify 

the facts with respect to their current 

usage of the PM10 surrogate policy for 

PSD permitting purposes. All three 

states responded that they have the legal 

authority under their respective PSD 

regulations to regulate PM2.5 directly, 

rather than PM10. Furthermore, the 

states of Indiana, Michigan, and Ohio 

confirmed that they have discontinued 

reliance on the PM10 surrogate policy to 

satisfy the PSD requirements for PM2.5. 

Indiana, Michigan, and Ohio 

transmitted letters affirming these 

points on June 17, 2011, June 22, 2011, 

and June 23, 2011, respectively. 

EPA considers the letters from each 

state to be a supplemental submission 

that clarifies and updates the prior 

infrastructure SIP submissions. 

Therefore, EPA considers the facts as 

represented by each state in its letter to 

be a part of the basis for its evaluation 

of the infrastructure SIPs. Because each 

state has confirmed that it already has 

the requisite legal authority to regulate 

PM2.5 directly in its PSD program, and 

because each state has confirmed that it 

is no longer using the PM10 surrogate 

policy, EPA concludes that there is no 

need to use a conditional approval with 

respect to section 110(a)(2)(C) for each 

of these states. Therefore, in today’s 

action EPA is simply approving the 

submissions with respect to section 

110(a)(2)(C). EPA believes that this 

course of action will alleviate the 

legitimate concerns of the commenters 

with respect to any continued use of the 

PM10 surrogacy policy in these states. 

IV. What action is EPA taking? 

For the reasons discussed in the 

proposed rulemaking, as well as the 

responses to comments received by EPA 

during the public comment period, EPA 

is taking final action to approve 

elements of submissions from the EPA 

Region 5 states certifying that the 

current SIPs are sufficient to meet the 

applicable infrastructure elements 

under sections 110(a)(1) and (2) for the 

1997 8-hour ozone NAAQS and the 

1997 PM2.5 NAAQS. Notably, whereas 

the proposed rulemaking contained 

conditional approvals for Indiana, 

Michigan, and Ohio with respect to 

their satisfaction of section 110(a)(2)(C), 

Sub-element 3: PM10 surrogate policy, 

EPA’s final action for these three states 

is an approval based on the discussion 

in the response to Comment 8. 

Based upon comments received 

during the rulemaking, EPA is not 

finalizing its proposed approval of the 

submission from the State of Wisconsin 

with respect to two narrow issues that 

relate to section 110(a)(2)(C): (i) The 

requirement for consideration of NOX as 

a precursor to ozone; and (ii) the 

definition of ‘‘major modification’’ 

related to fuel changes for certain 

sources. EPA will address these issues 

in a later action. 

As detailed in section II of this final 

action, EPA is affirming that there are 

four substantive issues outside of the 

scope of this rulemaking: SSM 

provisions, director’s discretion 

provisions, NSR Reform, and minor 

source NSR. It should be noted, 

however, that our proposed rulemaking 

included discussion of various past EPA 

approvals of minor source NSR program 

submissions from Region 5 states in 

connection with section 110(a)(2)(C). 

After realizing the confusion 

engendered by EPA’s statements about 

certain issues that the Agency considers 

outside the scope of action on 

infrastructure SIPs, we want to clarify 

that EPA does not consider the minor 

source NSR program to be one that 

states must address in their 

infrastructure SIPs, nor one that EPA 

must evaluate in approving such 

infrastructure SIPs. Therefore, our final 

action maintains that EPA is neither 

approving nor disapproving the minor 

source NSR programs in the states of 

Illinois, Indiana, Ohio, Michigan, 

Minnesota, and Wisconsin in the 

context of infrastructure SIPs. Any 

future evaluation of those minor source 

NSR programs will be conducted 

independently of today’s actions. 

Specifically, these are EPA’s final 

actions, by element of section 110(a)(2): 

Element IL IN OH MI MN WI 21

A: Emission limits and other control measures ....................................... A A A A A A 

B: Ambient air quality monitoring and data system ................................. A A A A A A 

C1: Enforcement of SIP measures .......................................................... A A A A A A 

C2: NOX as a precursor to ozone in PSD regulations ............................ * A A A * NA 

C3: PM10 surrogate policy in PSD regulations ........................................ * A A A * A 

C4: NSR reform ....................................................................................... NA NA NA NA NA NA 

C5: GHG permitting in PSD regulations .................................................. * A A A * A 

C6: Minor source NSR regulations .......................................................... NA NA NA NA NA NA 

D(i): Interstate transport ........................................................................... NA NA NA NA NA NA 

D(ii): Interstate and international pollution abatement ............................. A A A A A A 

E: Adequate resources ............................................................................ A A A A A A 

F: Stationary source monitoring system .................................................. A A A A A A 

G: Emergency power ............................................................................... A A A A A A 

H: Future SIP revisions ............................................................................ A A A A A A 

I: Nonattainment area plan or plan revisions under part D ..................... NA NA NA NA NA NA 

J1: Consultation with government officials .............................................. A A A A A A 

J2: Public notification ............................................................................... A A A A A A 

J3: PSD .................................................................................................... **   **  ** ** 

J4: Visibility protection (Regional Haze) .................................................. NA NA NA NA NA NA 

K: Air quality modeling and data .............................................................. A A A A A A 

L: Permitting fees ..................................................................................... A A A A A A 

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41084 Federal Register / Vol. 76, No. 134 / Wednesday, July 13, 2011 / Rules and Regulations 

Element IL IN OH MI MN WI 21

M: Consultation and participation by affected local entities .................... A A A A A A 

In the above table, the key is as follows: 

A Approve. 

NA No Action/Separate Rulemaking. 

* Federally promulgated rules in place. 

** Previously discussed in element (C). 

V. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 

provisions of the Clean Air Act 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 Clean Air Act. 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 Order 12866 (58 FR 51735, 

October 4, 1993); 

• 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 Clean Air Act; 

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, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by September 12, 

2011. Filing a petition for 

reconsideration by the Administrator of 

this final rule does not affect the finality 

of this action for the purposes of judicial 

review nor does it extend the time 

within which a petition for judicial 

review may be filed, and shall not 

postpone the effectiveness of such rule 

or action. This action may not be 

challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Ozone, Particulate matter, Reporting 

and recordkeeping requirements. 

Dated: June 30, 2011. 

Susan Hedman, 

Regional Administrator, Region 5. 

40 CFR part 52, is amended as 

follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart O—Illinois 

■ 2. Section 52.745 is added to read as 

follows: 

§ 52.745 Section 110(a)(2) Infrastructure 

Requirements. 

(a) Approval. In a December 12, 2007 

submittal, Illinois certified that the State 

has satisfied the infrastructure SIP 

requirements of section 110(a)(2)(A) 

through (C), (D)(ii), (E) through (H), and 

(J) through (M) for the 1997 8-hour 

ozone NAAQS. Illinois continues to 

implement the Federally promulgated 

rules for the prevention of significant 

deterioration as they pertain to section 

110(a)(2)(C) and (J). 

(b) Approval. In a December 12, 2007 

submittal, Illinois certified that the State 

has satisfied the infrastructure SIP 

requirements of section 110(a)(2)(A) 

through (C), (D)(ii), (E) through (H), and 

(J) through (M) for the 1997 PM2.5

NAAQS. Illinois continues to 

implement the Federally promulgated 

rules for the prevention of significant 

deterioration as they pertain to section 

110(a)(2)(C) and (J). 

Subpart P—Indiana 

■ 3. In § 52.770, the table in paragraph 

(e) is amended by adding entries in 

alphabetical order for ‘‘Section 110(a)(2) 

Infrastructure Requirements for the 1997 

8-Hour Ozone NAAQS’’ and ‘‘Section 

110(a)(2) Infrastructure Requirements 

for the 1997 PM2.5 NAAQS’’ to read as 

follows: 

§ 52.770 Identification of plan. 

* * * * * 

(e) * * * 

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Federal Register / Vol. 76, No. 134 / Wednesday, July 13, 2011 / Rules and Regulations 41085 

EPA-APPROVED INDIANA NONREGULATORY AND QUASI-REGULATORY PROVISIONS

Title Indiana date EPA approval Explanation 

*******

Section 110(a)(2) infrastructure requirements for the 1997 8-Hour 

Ozone NAAQS.

12/7/2007, 9/19/2008, 3/23/2011, 

and 4/7/2011.

7/13/2011, [Insert page number 

where the document begins].

This action addresses the following CAA elements: 

110(a)(2)(A), (B), (C), (D)(ii), 

(E), (F), (G), (H), (J), (K), (L), 

and (M). 

Section 110(a)(2) infrastructure requirements for the 1997 PM2.5

NAAQS.

12/7/2007, 9/19/2008, 3/23/2011, 

and 4/7/2011.

7/13/2011, [Insert page number 

where the document begins].

This action addresses the following CAA elements: 

110(a)(2)(A), (B), (C), (D)(ii), 

(E), (F), (G), (H), (J), (K), (L), 

and (M). 

* * * * * * * 

Subpart X—Michigan 

■ 4. In § 52.1170, the table in paragraph 

(e) is amended by adding entries at the 

end of the table for ‘‘Section 110(a)(2) 

Infrastructure Requirements for the 1997 

8-Hour Ozone NAAQS’’ and ‘‘Section 

110(a)(2) Infrastructure Requirements 

for the 1997 PM2.5 NAAQS’’ to read as 

follows: 

§ 52.1170 Identification of plan. 

* * * * * 

(e) * * * 

EPA-APPROVED MICHIGAN NONREGULATORY AND QUASI-REGULATORY PROVISIONS

Name of nonregulatory 

SIP provision 

Applicable geographic 

or nonattainment area State submittal date EPA approval date Comments 

*******

Section 110(a)(2) Infrastructure Requirements for the 1997 

8-Hour Ozone 

NAAQS.

Statewide ................... 12/6/07, 7/19/08, and 

4/6/11.

7/13/11, [Insert page 

number where the 

document begins].

This action addresses the following CAA elements: 110(a)(2)(A), (B), (C), (D)(ii), (E), 

(F), (G), (H), (J), (K), (L), and (M). 

Section 110(a)(2) Infrastructure Requirements for the 1997 

PM2.5 NAAQS.

Statewide ................... 12/6/07, 7/19/08, and 

4/6/11.

7/13/11, [Insert page 

number where the 

document begins].

This action addresses the following CAA elements: 110(a)(2)(A), (B), (C), (D)(ii), (E), 

(F), (G), (H), (J), (K), (L), and (M). 

Subpart Y—Minnesota 

■ 5. In § 52.1220, the table in paragraph 

(e) is amended by adding entries in 

alphabetical order for ‘‘Section 110(a)(2) 

Infrastructure Requirements for the 1997 

8-Hour Ozone NAAQS’’ and ‘‘Section 

110(a)(2) Infrastructure Requirements 

for the 1997 PM2.5 NAAQS’’ to read as 

follows: 

§ 52.1220 Identification of plan. 

* * * * * 

(e) * * * 

EPA-APPROVED MINNESOTA NONREGULATORY PROVISIONS

Name of nonregulatory 

SIP provision 

Applicable geographic 

or nonattainment area 

State submittal 

date/effective 

date 

EPA approved date Comments 

*******

Section 110(a)(2) Infrastructure Requirements for the 1997 8- 

Hour Ozone NAAQS.

Statewide ................... 11/29/07 7/13/11, [Insert page 

number where the 

document begins].

This action addresses the following CAA elements: 110(a)(2)(A), (B), (C), (D)(ii), (E), (F), 

(G), (H), (J), (K), (L), and (M). Minnesota continues to implement the Federally promulgated 

rules for the prevention of significant deterioration as they pertain to section 110(a)(2)(C) 

and (J). 

Section 110(a)(2) Infrastructure Requirements for the 1997 

PM2.5 NAAQS.

Statewide ................... 11/29/07 7/13/11, [Insert page 

number where the 

document begins].

This action addresses the following CAA elements: 110(a)(2)(A), (B), (C), (D)(ii), (E), (F), 

(G), (H), (J), (K), (L), and (M). Minnesota continues to implement the Federally promulgated 

rules for the prevention of significant deterioration as they pertain to section 110(a)(2)(C) 

and (J). 

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41086 Federal Register / Vol. 76, No. 134 / Wednesday, July 13, 2011 / Rules and Regulations 

EPA-APPROVED MINNESOTA NONREGULATORY PROVISIONS—Continued 

Name of nonregulatory 

SIP provision 

Applicable geographic 

or nonattainment area 

State submittal 

date/effective 

date 

EPA approved date Comments 

*******

Subpart KK—Ohio 

■ 6. Section 52.1891 is added to read as 

follows: 

§ 52.1891 Section 110(a)(2) Infrastructure 

Requirements. 

(a) Approval. In a December 5, 2007 

submittal, supplemented on April 7, 

2011, Ohio certified that the State has 

satisfied the infrastructure SIP 

requirements of section 110(a)(2)(A) 

through (C), (D)(ii), (E) through (H), and 

(J) through (M) for the 1997 8-hour 

ozone NAAQS. 

(b) Approval. In a December 5, 2007 

submittal, supplemented on April 7, 

2011, Ohio certified that the State has 

satisfied the infrastructure SIP 

requirements of section 110(a)(2)(A) 

through (C), (D)(ii), (E) through (H), and 

(J) through (M) for the 1997 PM2.5

NAAQS. 

Subpart YY—Wisconsin 

■ 7. Section 52.2591 is added to read as 

follows: 

§ 52.2591 Section 110(a)(2) Infrastructure 

Requirements. 

(a) Approval. In a December 12, 2007 

submittal, supplemented on January 24, 

2011 and March 28, 2011, Wisconsin 

certified that the State has satisfied the 

infrastructure SIP requirements of 

section 110(a)(2)(A) through (C), (D)(ii), 

(E) through (H), and (J) through (M) for 

the 1997 8-hour ozone NAAQS. EPA is 

not finalizing its proposed approval of 

the submission from the State of 

Wisconsin with respect to two narrow 

issues that relate to section 110(a)(2)(C): 

The requirement for consideration of 

NOx as a precursor to ozone; and (ii) the 

definition of ‘‘major modification’’ 

related to fuel changes for certain 

sources. EPA will address these issues 

in a later action. 

(b) Approval. In a December 12, 2007 

submittal, supplemented on January 24, 

2011 and March 28, 2011, Wisconsin 

certified that the State has satisfied the 

infrastructure SIP requirements of 

section 110(a)(2)(A) through (C), (D)(ii), 

(E) through (H), and (J) through (M) for 

the 1997 PM2.5 NAAQS. EPA is not 

finalizing its proposed approval of the 

submission from the State of Wisconsin 

with respect to two narrow issues that 

relate to section 110(a)(2)(C): The 

requirement for consideration of NOx as 

a precursor to ozone; and the definition 

of ‘‘major modification’’ related to fuel 

changes for certain sources. EPA will 

address these issues in a later action. 

[FR Doc. 2011–17463 Filed 7–12–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2010–0036; FRL–9430–9] 

Approval and Promulgation of Air 

Quality Implementation Plans; Ohio; 

Volatile Organic Compound Reinforced 

Plastic Composites Production 

Operations Rule 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving into the 

Ohio State Implementation Plan (SIP) a 

new rule for the control of volatile 

organic compound (VOC) emissions 

from reinforced plastic composites 

production operations. This rule applies 

to any facility that has reinforced plastic 

composites production operations. This 

rule is approvable because it satisfies 

the requirements of the Clean Air Act 

(CAA). EPA proposed this rule for 

approval on January 27, 2011, and 

received three sets of comments. 

DATES: This final rule is effective on 

August 12, 2011. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

EPA–R05–OAR–2010–0036. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publicly available, 

i.e., Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

http://www.regulations.gov or in hard 

copy at the Environmental Protection 

Agency, Region 5, Air and Radiation 

Division, 77 West Jackson Boulevard, 

Chicago, Illinois 60604. This facility is 

open from 8:30 a.m. to 4:30 p.m., 

Monday through Friday, excluding 

Federal holidays. We recommend that 

you telephone Steven Rosenthal, 

Environmental Engineer, at (312) 886– 

6052 before visiting the Region 5 office. 

FOR FURTHER INFORMATION CONTACT: 

Steven Rosenthal, Environmental 

Engineer, Air Planning and 

Maintenance Section, Air Programs 

Branch (AR–18J), Environmental 

Protection Agency, Region 5, 77 West 

Jackson Boulevard, Chicago, Illinois 

60604, (312) 886–6052. 

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 public comments were received on 

the proposed approval and what is EPA’s 

response? 

II. What action is EPA taking today and what 

is the basis of this action? 

III. Statutory and Executive Order Reviews 

I. What public comments were received 

on the proposed approval and what is 

EPA’s response? 

EPA received three comments. A 

discussion of each follows: 

(A) An anonymous comment was in 

support of EPA’s approval of Ohio’s 

rule. 

(B) The Aquatic Company commented 

that it is concerned that the maximum 

achievable control technology (MACT) 

limits in subpart WWWW of 40 CFR 

part 63, for Reinforced Plastic 

Composites Production, underestimate 

emissions generated by tub/shower 

manufacturers and notes that EPA is 

currently working to correct these and 

other issues with subpart WWWW. The 

Aquatic Company opposes any rule 

which is tied to the subpart WWWW 

regulations. This comment is not 

directly relevant to this rulemaking 

because it is mainly a complaint against 

the MACT and provides no suggested 

revisions to Ohio’s rule. 

(C) Premix, Inc. commented that it 

objects to the 25 tons VOC per year 

applicability cutoff for sheet mold 

compound (SMC) machines. Premix has 

successfully, and cost-effectively, 

controlled VOCs from its SMC machines 

using its Tight Wet Area Enclosures and 

a small Regenerative Thermal Oxidizer. 

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