[Federal Register Volume 77, Number 77 (Friday, April 20, 2012)]
[Proposed Rules]
[Pages 23647-23652]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-9608]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2007-1179; FRL-9661-5]


Approval of Air Quality Implementation Plans; Wisconsin; 
Disapproval of ``Infrastructure'' SIP With Respect to Oxides of 
Nitrogen as a Precursor to Ozone Provisions and New Source Review 
Exemptions for Fuel Changes as Major Modifications for the 1997 8-Hour 
Ozone and 24-Hour PM2.5 NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: Pursuant to EPA's authority under the Clean Air Act (CAA), EPA 
is proposing to disapprove two narrow portions of submissions made by 
the Wisconsin Department of Natural Resources (WDNR) to address the 
section 110(a)(1) and (2) requirements of the CAA, often referred to as 
the ``infrastructure'' State Implementation Plan (SIP). Specifically, 
we are proposing to disapprove the portions of WDNR's submissions 
intended to meet certain requirements of section 110(a)(2)(C) with 
respect to the 1997 8-hour ozone National Ambient Air Quality Standards 
(NAAQS) and 1997 24-hour PM<INF>2.5</INF> NAAQS. Among other 
conditions, section 110(a)(2)(C) of the CAA requires states to 
correctly address oxides of nitrogen (NO<INF>X</INF>) as a precursor to 
ozone in their respective prevention of significant deterioration (PSD) 
programs. EPA is proposing to disapprove a portion of Wisconsin's 
submissions intended to satisfy this requirement. EPA is also proposing 
to disapprove a portion of Wisconsin's submissions because the SIP 
currently contains a new source review (NSR) exemption for fuel changes 
as major modifications where the source was capable of accommodating 
the change before January 6, 1975.

DATES: Comments must be received on or before May 21, 2012.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2007-1179, by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: <a href="/cdn-cgi/l/email-protection#375655424556595819535842505b56447752475619505841"><span class="__cf_email__" data-cfemail="b3d2d1c6c1d2dddc9dd7dcc6d4dfd2c0f3d6c3d29dd4dcc5">[email protected]</span></a>.
    3. Fax: (312) 408-2279.
    4. Mail: Douglas Aburano, Chief, Attainment Planning and 
Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental 
Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.
    5. Hand Delivery: Douglas Aburano, Chief, Attainment Planning and 
Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental 
Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. 
Such deliveries are only accepted during the Regional Office normal 
hours of operation, and special arrangements should be made for 
deliveries of boxed information. The Regional Office official hours of 
business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding 
Federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2007-1179. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or email. The 
www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email comment 
directly to EPA without going through www.regulations.gov your email 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA

[[Page 23648]]

recommends that you include your name and other contact information in 
the body of your comment and with any disk or CD-ROM you submit. If EPA 
cannot read your comment due to technical difficulties and cannot 
contact you for clarification, EPA may not be able to consider your 
comment. Electronic files should avoid the use of special characters, 
any form of encryption, and be free of any defects or viruses.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in 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, Environmental Engineer, 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, <a href="/cdn-cgi/l/email-protection#8deee5ece3eaa3ece3e9f4cde8fdeca3eae2fb"><span class="__cf_email__" data-cfemail="caa9a2aba4ade4aba4aeb38aafbaabe4ada5bc">[email protected]</span></a>.

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 should I consider as I prepare my comments for EPA?
II. What is the background for this action?
III. What is EPA's evaluation of Wisconsin's infrastructure SIP for 
the 1997 ozone and 1997 PM<INF>2.5</INF> NAAQS?
    A. NO<INF>X</INF> as a precursor to ozone provisions.
    B. Fuel Changes as Major Modifications
IV. What action is EPA taking?
V. Statutory and Executive Order Reviews

I. What should I consider as I prepare my comments for EPA?

    When submitting comments, remember to:
    1. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    2. Follow directions--EPA may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    3. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    4. Describe any assumptions and provide any technical information 
and/or data that you used.
    5. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    6. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    7. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    8. Make sure to submit your comments by the comment period deadline 
identified.

II. What is the background for this action?

    Under sections 110(a)(1) and (2) of the CAA, and implementing EPA 
guidance, states were required to submit either revisions to their 
existing EPA approved SIPs necessary to provide for implementation, 
maintenance, and enforcement of the 1997 ozone NAAQS and the 1997 
PM<INF>2.5</INF> 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 ozone NAAQS and the 1997 PM<INF>2.5</INF> 
NAAQS created uncertainty about how states were to proceed.\1\ 
Accordingly, both EPA and the states were delayed in addressing these 
basic SIP requirements.
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    \1\ See, e.g., Whitman v. American Trucking Associations, Inc., 
531 U.S. 457 (2001).
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    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 PM<INF>2.5</INF> 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 PM<INF>2.5</INF> 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. Wisconsin made its infrastructure SIP submission for 
the 1997 ozone and PM<INF>2.5</INF> NAAQS on December 12, 2007. The 
State provided supplemental submissions to EPA on January 24, 2011, and 
March 28, 2011.
    On April 28, 2011, EPA published its proposed action on the Region 
5 states' submissions (see 76 FR 23757). Notably, we proposed to find 
that Wisconsin had met the requirements of section 110(a)(2)(C) 
concerning state PSD programs generally, and in particular the 
requirement to include NO<INF>X</INF> as a precursor to ozone (see 76 
FR 23757 at 23760-23761), thereby satisfying the requirement that the 
State has an adequate PSD program pursuant to section 110(a)(2)(C) for 
both the 1997 ozone and 1997 PM<INF>2.5</INF> NAAQS.\2\
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    \2\ EPA noted that each state's PSD program must meet certain 
basic program requirements, e.g., if a state lacks provisions needed 
to address NO<INF>X</INF> as a precursor to ozone, the provisions of 
section 110(a)(2)(C) requiring an adequate permitting program must 
be considered not to be met, irrespective of the pollutant being 
addressed in the infrastructure SIP submission.
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    During the comment period for the April 28, 2011, proposed 
rulemaking, EPA received three sets of comments. Two of the commenters 
observed that although we had proposed to approve Wisconsin's 
infrastructure SIP as meeting the correct requirements for 
NO<INF>X</INF> as a precursor to ozone in the State's PSD program, 
Wisconsin's PSD SIP does not contain the most recent PSD program 
revisions required by EPA for this purpose. One of the commenters also 
noted that Wisconsin's existing SIP does not meet current EPA 
requirements with respect to NSR because Wisconsin has not included 
fuel changes as ``major modifications'' in its NSR program for certain 
sources under certain conditions. A detailed discussion of these 
comments as they relate to Wisconsin's SIP will follow in the section 
entitled, ``What is EPA's evaluation of Wisconsin's infrastructure SIP 
for the 1997 ozone and 1997 PM<INF>2.5</INF> NAAQS?''
    As a result of the comments, we did not promulgate final action on 
those two limited aspects of Wisconsin's infrastructure SIP in our July 
13, 2011, final rulemaking (see 76 FR 41075). We did, however, 
promulgate final action on all other applicable elements of Wisconsin's 
infrastructure SIP. In the July 13, 2011, rulemaking, we committed to 
address the issues raised in the comments concerning NO<INF>X</INF> as 
a precursor to ozone and the definition of ``major modification'' 
related to fuel changes for certain sources in Wisconsin in a separate 
action; this

[[Page 23649]]

proposed rulemaking and future final rulemaking serve as that action.

III. What is EPA's evaluation of Wisconsin's infrastructure SIP for the 
1997 ozone and 1997 PM<INF>2.5</INF> NAAQS?

    As stated above, EPA promulgated final action on all applicable 
elements of Wisconsin's infrastructure SIP submissions for the 1997 
ozone and 1997 PM<INF>2.5</INF> NAAQS except for the narrow issues 
related to section 110(a)(2)(C) with respect to the current regulatory 
requirements for NO<INF>X</INF> as a precursor to ozone in PSD 
permitting and the definition of ``major modification'' related to fuel 
changes for certain sources.\3\ The following discussion is applicable 
only to these two unresolved issues for Wisconsin's infrastructure SIP, 
and will not extend to the elements or requirements of sections 
110(a)(1) and (2) for which EPA has previously promulgated final 
action.
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    \3\ Although the evaluation of states' definitions of ``major 
modification'' related to fuel changes was not a criterion outlined 
in EPA's April 28, 2011 proposed rulemaking, this issue is 
intrinsically linked to states' PSD regulations, covered under 
section 110(a)(2)(C).
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A. NOX as a Precursor to Ozone Provisions

    During the public comment period following EPA's April 28, 2011 
proposed rulemaking, commenters disagreed with EPA's proposed 
conclusion that the SIP for Wisconsin currently meets the requirements 
for NO<INF>X</INF> as a precursor for ozone in permitting contexts. The 
commenters noted that in the proposed rulemaking, EPA stated that 
Wisconsin's PSD rules include NO<INF>X</INF> as a precursor to ozone, 
and that EPA cited the approval of this provision as occurring on May 
27, 1999 (see 64 FR 28745). The commenters disagreed with EPA's 
conclusion that the May 27, 1999, approval, specifically of NR 
405.02(21)(a), adequately addresses the issue of inclusion of 
NO<INF>X</INF> as a precursor to ozone.
    After careful consideration of the comments, we have concluded that 
the commenters were correct on this point because the current EPA 
approved SIP for the state does not contain specific SIP revisions for 
the PSD program required by EPA. On November 29, 2005, EPA published 
the ``Final Rule to Implement the 8-Hour Ozone National Ambient Air 
Quality Standard--Phase 2; Final Rule to Implement Certain Aspects of 
the 1990 Amendments Relating to New Source Review and Prevention of 
Significant Deterioration as They Apply in Carbon Monoxide, Particulate 
Matter, and Ozone NAAQS; Final Rule for Reformulated Gasoline'' (Phase 
2 Rule) (see 70 FR 71612). One aspect of the Phase 2 Rule was the 
specific requirement to identify NO<INF>X</INF> as an explicit ozone 
precursor (see 70 FR 71612 at 71679, 71699-71700). This requirement was 
codified in 40 CFR 51.166, and consisted of the following: \4\
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    \4\ Similar changes were codified in 40 CFR 52.21.
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    40 CFR 51.166 (b)(1)(ii): A major source that is major for volatile 
organic compounds or NO<INF>X</INF> shall be considered major for 
ozone;
    40 CFR 51.166 (b)(2)(ii): Any significant emissions increase (as 
defined at paragraph (b)(39) of this section) from any emissions units 
or net emissions increase (as defined in paragraph (b)(3) of this 
section) at a major stationary source that is significant for volatile 
organic compounds or NO<INF>X</INF> shall be considered significant for 
ozone;
    40 CFR 51.166 (b)(23)(i): Ozone: 40 tons per year of volatile 
organic compounds or nitrogen oxides;
    40 CFR 51.166 (b)(49)(i): Any pollutant for which a national 
ambient air quality standard has been promulgated and any constituents 
or precursors for such pollutants identified by the Administrator 
(e.g., volatile organic compounds and NO<INF>X</INF>) are precursors 
for ozone; and
    40 CFR 51.166 (i)(5)(i)(e) footnote 1: No de minimis air quality 
level is provided for ozone. However, any net emissions increase of 100 
tons per year or more of volatile organic compounds or nitrogen oxides 
subject to PSD would be required to perform an ambient impact analysis, 
including the gathering of air quality data.
    The Phase 2 Rule required that states submit SIP revisions 
incorporating the requirements of the rule, including these specific 
NO<INF>X</INF> as a precursor to ozone provisions, by June 15, 2007 
(see 70 FR 71612 at 71683).
    EPA believes that states' SIPs do not meet current structural 
requirements for the PSD program, and thus do not meet the 
infrastructure SIP requirements relevant to section 110(a)(2)(C), 
unless states have made these revisions required in 2007. Thus, states 
that did not incorporate the changes specific to identifying 
NO<INF>X</INF> as a precursor to ozone required by the Phase 2 Rule 
were included in EPA's March 27, 2008 ``Completeness Findings for 
Section 110(a) State Implementation Plans for the 8-Hour Ozone NAAQS'' 
and received a finding of failure to submit related to section 
110(a)(2)(C) for this reason (see 73 FR 16205). Wisconsin was not 
included in the March 27, 2008 findings notice.
    Similarly, consistent with the Phase 2 Rule, EPA has disapproved 
portions of other states' infrastructure SIPs on the basis that they 
have not explicitly identified NO<INF>X</INF> as a precursor to ozone. 
Notably, we disapproved the portion of Montana's infrastructure SIP 
with respect to this requirement of section 110(a)(2)(C) on July 22, 
2011 (see 76 FR 43918). EPA also finalized a partial Federal 
Implementation Plan (FIP) on August 8, 2011, which included provisions 
that explicitly include NO<INF>X</INF> as a precursor to ozone in the 
North Coast Unified Air Quality Management District of California (see 
76 FR 48006). Likewise, EPA has acted on portions of the SIP submission 
required by the Phase 2 Rule in conjunction with acting on a state's 
infrastructure SIP submission. For example, EPA promulgated final 
approval with respect to South Dakota's revisions to its PSD program 
identifying NO<INF>X</INF> as a precursor to ozone consistent with the 
requirements of the Phase 2 Rule concurrently with final action on 
South Dakota's infrastructure SIP for the 1997 ozone NAAQS.\5\
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    \5\ EPA's proposed action for South Dakota was published on May 
12, 2011 (see 76 FR 27622), and our final action for South Dakota 
was published on July 22, 2011 (see 76 FR 43912).
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    Therefore, based on EPA's own regulations, submission deadlines, 
and actions germane to the explicit identification of NO<INF>X</INF> as 
a precursor to ozone in Federally approved PSD programs, we are 
proposing to disapprove the portions of Wisconsin's infrastructure SIP 
submission with respect to the NO<INF>X</INF> as a precursor to ozone 
provision requirements of section 110(a)(2)(C) for the 1997 ozone and 
PM<INF>2.5</INF> NAAQS.

B. Fuel Changes as Major Modifications

    During the comment period following EPA's April 28, 2011, proposed 
rulemaking, one commenter argued that Wisconsin's existing SIP is 
deficient for purposes of section 110(a)(2)(C) because it does not meet 
current EPA requirements with respect to the NSR program. The commenter 
noted that the NSR program requires states to adopt definitions that 
are identical to, or more stringent than, EPA's definitions. Contrary 
to EPA's definition, the commenter asserted that Wisconsin has not 
included fuel changes as ``major modifications'' in its NSR program. 
The commenter cited a 2009 letter from EPA to the state requesting that 
the state update its regulations to address this specific issue.
    The definition of ``major modification'' as it relates to PSD is

[[Page 23650]]

generally defined in NR 405.02(21) of Wisconsin's SIP. The exemptions 
to ``physical change'' are contained at NR 405.02(21)(b). One exemption 
is the ability of a source capable of accommodating different types of 
fuels before 1975 to switch the type of fuel burned, unless strictly 
prohibited by a restriction in a permit established after 1975.
    EPA regulations contained at 40 CFR 51.166(b)(2)(iii)(e)(1) and (2) 
specifically prescribe when use of an alternative fuel is not 
considered a physical change for purposes of defining a ``major 
modification.'' These regulations require that a physical change or 
change in the method shall not include use of an alternative fuel or 
raw material by a stationary source which:

    The source was capable of accommodating before January 6, 1975, 
unless such change would be prohibited under any federally 
enforceable permit condition which was established after January 6, 
1975 pursuant to 40 CFR 52.21 or under regulations approved pursuant 
to 40 CFR [part 51], subpart I, or 40 CFR 51.166; or
    The source is approved to use [the fuel] under any permit issued 
under 40 CFR 52.21 or under regulations approved pursuant to 40 CFR 
51.166.

    The Wisconsin regulations set out the conditions for the fuel 
change exemption as follows:

    The source was capable of accommodating the alternative fuel or 
raw material before January 6, 1975, unless the change would be 
prohibited under any federally enforceable permit condition which 
was established after January 6, 1975 pursuant to this chapter or 
ch. NR 406 or 408 or under an operation permit issued pursuant to 
ch. NR 407.
    [Or, t]he source is approved to use the alternative fuel or raw 
material under any permit issued under this chapter or ch. NR 406, 
407, or 408. See proposed NR 405.02(21)(b)5.

    The Wisconsin rule is similar to the Federal rule, but differs by 
substituting references to Wisconsin Administrative Code sections, 
omitting EPA's phrase ``pursuant to 40 CFR 52.21 or under regulations 
approved pursuant to 40 CFR [part 51], subpart I, or 40 CFR 51.166.'' 
The commenter objected that failure to cite Federal regulations results 
in the loss of prohibitions on fuel use exemptions that may have been 
contained in Federally-issued PSD permits, issued prior to EPA's 
approval of Wisconsin's PSD SIP. The result, the commenter noted that 
Wisconsin's rule allows more exemptions to the definition of ``major 
modification'' than allowed by the Federal rules.
    After careful consideration of the comment, we have concluded that 
the commenters were correct on this point because the current EPA 
approved SIP for the state does contain a specific provision that is 
inconsistent with the NSR program required by EPA. Because this 
provision is relevant to a structural requirement of the PSD permitting 
program, EPA believes that this issue affects the approvability of the 
infrastructure SIP submissions for purposes of meeting the requirements 
of section 110(a)(2)(C).
    EPA notes that this is an issue that has previously arisen and that 
the State has acknowledged and agreed to address it. The Sierra Club 
first raised a concern about this issue in the context of EPA's 
approval of Wisconsin's NSR Reform regulations on December 17, 2008 
(see 73 FR 76560). In that final rulemaking, EPA stated that the 
definition of ``major modification'' and the associated fuel use 
prohibitions were not part of the specific SIP submission being acted 
upon by EPA at that time. However, we did agree that the language in 
the Wisconsin SIP needed to be revised (see 73 FR 76560 at 76566).
    On June 17, 2009, EPA requested that the State revise its 
regulatory language in NR 405.02(21)(b)(5) and (6), and NR 
408.02(20)(e)(5) and (6), to include permit conditions in Federally-
issued permits. On June 1, 2011, WDNR committed to begin the rulemaking 
process necessary to do so within 120 days by including the requested 
revision in its next major rulemaking. However, WDNR's commitment did 
not include a date certain by which it would complete the requested 
revision of the State's regulations. As a result, EPA may not at this 
time promulgate an approval or conditional approval of the section 
110(a)(2)(C) portion of Wisconsin's infrastructure SIP for the 1997 
ozone and PM<INF>2.5</INF> NAAQS with respect to this narrow issue.
    After reviewing Wisconsin's current SIP in light of EPA's own 
regulations and request to the State to make appropriate revisions to 
the SIP necessary to address this issue, we are proposing to disapprove 
Wisconsin's infrastructure SIP submissions for the 1997 ozone and 
PM<INF>2.5</INF> NAAQS with respect to the NSR exemption for fuel 
changes as ``major modifications'' where the source was capable of 
accommodating the change before January 6, 1975. We note that this 
disapproval is a narrow one, and limited to the specific state 
regulatory language concerning the exemption.

IV. What action is EPA taking?

    EPA is proposing to disapprove two narrow portions of Wisconsin's 
infrastructure SIP submissions for the 1997 ozone and PM<INF>2.5</INF> 
NAAQS with respect to section 110(a)(2)(C). Specifically, we are 
proposing to disapprove the portions of Wisconsin's submissions because 
the current SIP does not satisfy the requirements of the Phase 2 Rule 
for explicit identification of NO<INF>X</INF> as a precursor to ozone 
in PSD permitting. We are also proposing to disapprove the portions of 
Wisconsin's submissions because the current SIP contains an 
impermissible NSR exemption for fuel changes as ``major modifications'' 
where the source was capable of accommodating the change before January 
6, 1975. These grounds for disapproval are narrow, and pertain only to 
these specific deficiencies in Wisconsin's SIP. We anticipate that the 
State will be able to rectify these issues readily and we will work 
with the State to rectify these issues promptly.
    Under section 179(a) of the CAA, final disapproval of a submission 
that addresses a requirement of a Part D Plan (section 171--section 193 
of the CAA), or is required in response to a finding of substantial 
inadequacy as described in section 110(k)(5) starts a sanction clock. 
The provisions in the submissions we are disapproving were not 
submitted by Wisconsin to meet either of those requirements. Therefore, 
if EPA takes final action to disapprove these submissions, no sanctions 
under section 179 will be triggered.
    The full or partial disapproval of a SIP revision triggers the 
requirement under section 110(c) that EPA promulgate a FIP no later 
than two years from the date of the disapproval unless the State 
corrects the deficiency, and the Administrator approves the plan or 
plan revision before the Administrator promulgates such FIP. As 
previously mentioned, EPA anticipates that WDNR will make a submission 
rectifying each of these deficiencies. Further, EPA anticipates acting 
on WDNR's submissions within the two year time frame prior to our FIP 
obligation on these very narrow issues. In the interim, EPA expects 
WDNR to treat and explicitly identify NO<INF>X</INF> as a precursor to 
ozone for PSD permitting consistent with the requirements of the Phase 
2 Rule, and to ensure adherence to the prohibitions on fuel use 
exemptions in Federally-issued permits.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. In this case EPA is

[[Page 23651]]

disapproving two aspects of the Wisconsin SIP that fail to meet Federal 
requirements.
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 under the Executive Order.
Paperwork Reduction Act
    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., 
because this proposed SIP disapproval under section 110 and subchapter 
I, part D of the CAA will not create any new information collection 
burdens but simply disapproves certain State requirements for inclusion 
into the SIP. Burden is defined at 5 CFR 1320.3(b).
Regulatory Flexibility Act
    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions. For purposes of assessing the impacts of today's rule on 
small entities, small entity is defined as: (1) A small business as 
defined by the Small Business Administration's (SBA) regulations at 13 
CFR 121.201; (2) a small governmental jurisdiction that is a government 
of a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise that is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
impact on a substantial number of small entities. This rule does not 
impose any requirements or create impacts on small entities. This 
proposed SIP disapproval under section 110 and subchapter I, part D, of 
the CAA will not create any new requirements but simply disapproves 
certain State requirements for inclusion into the SIP. Accordingly, it 
affords no opportunity for EPA to fashion for small entities less 
burdensome compliance or reporting requirements or timetables or 
exemptions from all or part of the rule. The fact that the CAA 
prescribes that various consequences (e.g., higher offset requirements) 
may or will flow from this disapproval does not mean that EPA either 
can or must conduct a regulatory flexibility analysis for this action. 
Therefore, this action will not have a significant economic impact on a 
substantial number of small entities.
    We continue to be interested in the potential impacts of this 
proposed rule on small entities and welcome comments on issues related 
to such impacts.
Unfunded Mandates Reform Act
    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for State, local, or tribal governments or the private 
sector.'' EPA has determined that the proposed disapproval action does 
not include a Federal mandate that may result in estimated costs of 
$100 million or more to either State, local, or tribal governments in 
the aggregate, or to the private sector. This action proposes to 
disapprove pre-existing requirements under State or local law, and 
imposes no new requirements. Accordingly, no additional costs to State, 
local, or tribal governments, or to the private sector, result from 
this action.
Executive Order 13132: Federalism
    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that 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.''
    This action does not have federalism implications. It will 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, because it merely disapproves 
certain State requirements for inclusion into the SIP and does not 
alter the relationship or the distribution of power and 
responsibilities established in the CAA. Thus, Executive Order 13132 
does not apply to this action.
Executive Order 13175: Consultation and Coordination With Indian Tribal 
Governments
    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP 
EPA is proposing to disapprove would not 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. Thus, 
Executive Order 13175 does not apply to this action.
Executive Order 13045: Protection of Children From Environmental Health 
and Safety Risks
    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because it because it is 
not an economically significant regulatory action based on health or 
safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 
1997). This proposed SIP disapproval under section 110 and subchapter 
I, part D, of the CAA will not create any new regulations but simply 
disapproves certain State requirements for inclusion into the SIP.
Executive Order 13211: Actions That Significantly Affect Energy Supply, 
Distribution, or Use
    This action is not subject to Executive Order 13211 (66 FR 28355, 
May 22, 2001) because it is not a significant regulatory action under 
Executive Order 12866.
National Technology Transfer Advancement Act
    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. NTTAA directs EPA to 
provide Congress, through OMB, explanations when the Agency decides not 
to use available and applicable voluntary consensus standards.

[[Page 23652]]

    The EPA believes that this action is not subject to requirements of 
Section 12(d) of NTTAA because application of those requirements would 
be inconsistent with the CAA.
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.
    Consistent with EPA guidance addressing Executive Order 12898, EPA 
has determined that this proposed rule will not have disproportionately 
high and adverse human health or environmental health effects on 
minority or low-income populations because it increases the level of 
environmental protection for all affected populations without having 
any disproportionately high and adverse human health or environmental 
effects on any population, including any minority or low-income 
population. States' EPA-approved PSD and NSR regulations must meet 
certain minimum requirements promulgated by EPA, and these regulations 
apply to all affected populations within the State of Wisconsin. This 
action proposes to disapprove the portions of Wisconsin's SIP that do 
not contain certain EPA-promulgated minimum requirements.
Statutory Authority
    The statutory authority for this action is provided by sections 110 
of the CAA, as amended (42 U.S.C. 7410).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Ozone, Particulate matter, Reporting and recordkeeping 
requirements.

    Dated: April 9, 2012.
Susan Hedman,
Regional Administrator, Region 5.
[FR Doc. 2012-9608 Filed 4-19-12; 8:45 am]
BILLING CODE 6560-50-P


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