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[Federal Register Volume 80, Number 237 (Thursday, December 10, 2015)]
[Rules and Regulations]
[Pages 76637-76639]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-31062]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2009-0805; FRL-9939-77-Region 5]

Wisconsin; Disapproval of Infrastructure SIP With Respect to 
Oxides of Nitrogen as a Precursor to Ozone Provisions for the 2006 
PM2.5 NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is narrowly 
disapproving 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 2006 fine particulate matter 
(PM2.5) National Ambient Air Quality Standard (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. This action 
pertains specifically to certain infrastructure requirements that may 
be satisfied if a state has a fully approved prevention of significant 
deterioration (PSD) permitting program that incorporates all required 
program requirements, including the requirement to correctly address 
oxides of nitrogen (NOx) as a precursor to ozone.

DATES: This final rule is effective on January 11, 2016.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2009-0805. All documents in the docket are listed on 
the www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, i.e., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically through 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 Sarah Arra, 
Environmental Scientist, at (312) 886-9401 before visiting the Region 5 
office.

FOR FURTHER INFORMATION CONTACT: Sarah Arra, Environmental Scientist, 
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) 886-9401, arra.sarah@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:

[[Page 76638]]

I. What is the background of this SIP submission?
II. What is our response to comments received on the proposed 
rulemaking?
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews

I. What is the background of this SIP submission?

    This rulemaking addresses a January 24, 2011, submission, 
supplemented on June 29, 2012, from the Wisconsin Department of Natural 
Resources (WDNR) intended to address all applicable infrastructure 
requirements for the 2006 PM2.5 NAAQS.
    The requirement for states to make a SIP submission of this type 
arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), 
states must make SIP submissions ``within 3 years (or such shorter 
period as the Administrator may prescribe) after the promulgation of a 
national primary ambient air quality standard (or any revision 
thereof),'' and these SIP submissions are to provide for the 
``implementation, maintenance, and enforcement'' of such NAAQS. The 
statute directly imposes on states the duty to make these SIP 
submissions, and the requirement to make the submissions is not 
conditioned upon EPA's taking any action other than promulgating a new 
or revised NAAQS. Section 110(a)(2) includes a list of specific 
elements that ``[e]ach such plan'' submission must address.
    This specific rulemaking is only taking action on a the specific 
infrastructure requirements of CAA sections 110(a)(2)(C), (D)(i)(II), 
and (J), which may be satisfied if the state demonstrates that it has a 
fully approved PSD permitting program that incorporates all federal 
requirements, including, as relevant here, the requirement to properly 
regulate NOx as a precursor to ozone. The majority of the 
other infrastructure elements were approved in a rulemaking dated 
October 29, 2012, (77 FR 65478), including approvals and a narrow 
disapproval of the remaining PSD requirements in sections 110(a)(2)(C), 
(D)(i)(II), and (J).

II. What is our response to comments received on the proposed 
rulemaking?

    The proposed rulemaking associated with this final action was 
published on September 10, 2015 (80 FR 54468). During the comment 
period, which ended on October 13, 2015, EPA received a comment from 
the WDNR. A synopsis of the comment and EPA's response to the comment 
are provided below.
    Comment: WDNR disagrees with the proposed disapproval because the 
program discussed in the disapproval is currently being implemented by 
the state and the state is actively working to add the needed elements 
to its rules. WDNR also comments that EPA previously issued the state a 
finding of failure to submit for the missing PSD element and more 
recently issued a disapproval of this element on the same basis in a 
final action on a separate infrastructure SIP, and argues that a second 
disapproval is unnecessary.
    Response: EPA understands that WDNR is currently implementing the 
requirement to regulate NOx as a precursor to ozone as part 
of the state's PSD program, and that WDNR is currently working on 
revisions to its SIP to incorporate this requirement. Because of this, 
EPA did not originally take action on this aspect of the PSD program 
during EPA's evaluation of and final action on WDNR's 2006 
PM2.5 infrastructure SIP, which was published on October 29, 
2012 (77 FR 65478). However, the CAA requires EPA to take action on 
SIPs submitted by the state within 12 months of the submittal's 
completion date. EPA has been sued for missing this deadline, and under 
a consent decree, must finalize action on the state's SIP submission by 
November 30, 2015. Each time a new or revised NAAQS is promulgated, the 
statute requires both the state and EPA to reevaluate the adequacy of 
the states' SIP to satisfy the applicable requirements of section 
110(a)(2), including elements (C), (D)(i)(II), and (J). Therefore, 
disapproval of these elements with respect to EPA's evaluation of the 
state's 1997 ozone and PM2.5 infrastructure SIPs did not 
remove the requirement for the EPA to evaluate these elements anew in 
future infrastructure SIPs, such as this one. Because the state's PSD 
program does not meet all program requirements, and therefore does not 
fully satisfy the infrastructure requirements of CAA section 
110(a)(2)(C), (D)(i)(II), and (J) with respect to the 2006 
PM2.5 infrastructure SIP, EPA must narrowly disapprove the 
state's SIP submission as to that deficiency here.

III. What action is EPA taking?

    EPA is disapproving narrow portions of the 2006 PM2.5 
infrastructure SIP submission from Wisconsin certifying that its 
current SIP is sufficient to meet required infrastructure elements. 
Specifically, EPA is narrowly disapproving the submission with respect 
to the infrastructure elements under CAA sections 110(a)(2)(C), 
(D)(i)(II), and (J) for the 2006 PM2.5 NAAQS because the 
state's PSD program fails to properly regulate NOx as a 
precursor to ozone. This action together with EPA's October 29, 2012, 
final action partially approving and narrowly disapproving these 
elements with respect to other PSD requirements, completes final action 
on Wisconsin's 2006 PM2.5 infrastructure SIP with respect to 
CAA section 110(a)(2)(C), (D)(i)(II), and (J).

IV. Statutory and Executive Order Reviews

Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and, therefore, is 
not subject to review by the Office of Management and Budget.

Paperwork Reduction Act

    This rule does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.).

Regulatory Flexibility Act

    This action merely disapproves state law as not meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. Accordingly, the Administrator certifies that 
this rule will not have a significant economic impact on a substantial 
number of small entities under the Regulatory Flexibility Act (5 U.S.C. 
601 et seq.).

Unfunded Mandates Reform Act

    Because this rule disapproves pre-existing requirements under state 
law and does not impose any additional enforceable duty beyond that 
required by state law, it 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).

Executive Order 13132: Federalism

    This action also does not have Federalism implications because it 
does not have substantial direct effects on the states, on the 
relationship between the national government and the states, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132 (64 FR 43255, August 
10, 1999). This action merely disapproves a state rule, and does not 
alter the relationship or the distribution of power and 
responsibilities established in the CAA.

[[Page 76639]]

Executive Order 13175: Consultation and Coordination With Indian Tribal 
Governments

    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).

Executive Order 13045: Protection of Children From Environmental Health 
and Safety Risks

    This rule also is not subject to Executive Order 13045 ``Protection 
of Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because it disapproves a state rule.

Executive Order 13211: Actions That Significantly Affect Energy Supply, 
Distribution, or Use

    Because it is not a ``significant regulatory action'' under 
Executive Order 12866 or a ``significant energy action,'' this action 
is also not subject to Executive Order 13211, ``Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use'' (66 FR 28355, May 22, 2001).

National Technology Transfer Advancement Act

    In reviewing state submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. In this 
context, in the absence of a prior existing requirement for the state 
to use voluntary consensus standards (VCS), EPA has no authority to 
disapprove a state submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a state 
submission, to use VCS in place of a state submission that otherwise 
satisfies the provisions of the CAA. Thus, the requirements of section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(15 U.S.C. 272 note) do not apply.

Executive Order 12898: Federal Actions To Address Environmental Justice 
in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA lacks the discretionary authority to address environmental 
justice in this action. In reviewing SIP submissions, EPA's role is to 
approve or disapprove state choices, based on the criteria of the CAA. 
Accordingly, this action merely disapproves certain state requirements 
for inclusion into the SIP under section 110 and subchapter I, part D 
of the CAA and will not in-and-of itself create any new requirements. 
Accordingly, it 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.

Congressional Review Act

    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 rule 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 CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by February 8, 2016. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule 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, Particulate matter, Reporting 
and recordkeeping requirements.

    Dated: November 23, 2015.
Susan Hedman,
Regional Administrator, Region 5.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

0
2. Section 52.2591 is amended by revising paragraph (c) to read as 
follows:

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

* * * * *
    (c) Approval and Disapproval--In a January 24, 2011, submittal, 
supplemented on March 28, 2011, and June 29, 2012, Wisconsin certified 
that the State has satisfied the infrastructure SIP requirements of 
section 110(a)(2)(A) through (H), and (J) through (M) for the 2006 24-
hour PM2.5 NAAQS. EPA is approving Wisconsin's submission 
addressing the infrastructure SIP requirements of section 110(a)(2)(A), 
(B), (C) with respect to enforcement and the GHG permitting threshold 
PSD requirement, (D)(i)(II) with respect to the GHG permitting 
threshold PSD requirement and visibility protection, (D)(ii), (E) 
except for state board requirements, (F) through (H), (J) except for 
narrow prevention of significant deterioration requirements, and (K) 
through (M). We are not finalizing action on (D)(i)(I) and the state 
board requirements of (E)(ii). We will address these requirements in a 
separate action. We are disapproving narrow portions of Wisconsin's 
infrastructure SIP submission addressing the relevant prevention of 
significant deterioration requirements of the 2008 NSR Rule 
(identifying PM2.5 precursors and the regulation of 
PM2.5 and PM10 condensables in permits) and the 
requirement of NOX as a precursor to ozone with respect to 
section 110(a)(2)(C), (D)(i)(II), and (J).
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[FR Doc. 2015-31062 Filed 12-9-15; 8:45 am]
 BILLING CODE 6560-50-P
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