65478 Federal Register / Vol. 77, No. 209 / Monday, October 29, 2012 / Rules and Regulations 

Consultations With Tribal Governments 

The Department has determined that 

this rulemaking will not have Tribal 

implications, will not impose 

substantial direct compliance costs on 

Indian Tribal governments, and will not 

pre-empt Tribal law. Accordingly, the 

requirements of Executive Order 13175 

do not apply to this rulemaking. 

Paperwork Reduction Act 

This rule does not impose information 

collection requirements under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. Chapter 35. 

List of Subjects in 22 CFR Part 52 

Authentication of marriage, Marriage 

and divorce, Marriage laws. 

■ Accordingly, under the authority of 22 

U.S.C. 2651a, and because the statutory 

authority for Part 52 has been repealed, 

22 CFR Chapter I, Subchapter F is 

amended by removing Part 52. 

Dated: October 2, 2012. 

Janice L. Jacobs, 

Assistant Secretary, Bureau of Consular 

Affairs, Department of State. 

[FR Doc. 2012–26554 Filed 10–26–12; 8:45 am] 

BILLING CODE 4710–06–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket No. USCG–2011–0228] 

RIN 1625–AA00 

Safety Zone, Brandon Road Lock and 

Dam to Lake Michigan including Des 

Plaines River, Chicago Sanitary and 

Ship Canal, Chicago River, and 

Calumet-Saganashkee Channel, 

Chicago, IL 

AGENCY: Coast Guard, DHS. 

ACTION: Notice of enforcement of 

regulation. 

SUMMARY: The Coast Guard will enforce 

a segment of the Safety Zone; Brandon 

Road Lock and Dam to Lake Michigan 

including Des Plaines River, Chicago 

Sanitary and Ship Canal, Chicago River, 

Calumet-Saganashkee Channel on all 

waters of the Chicago Sanitary and Ship 

Canal from Mile Marker 296.1 to Mile 

Marker 296.7 at various times on 

November 14, 2012. This action is 

necessary to protect the waterways, 

waterway users, and vessels from 

hazards associated with the Illinois 

Department of Natural Resources netting 

and electro-fishing clearing operation. 

During any of the below listed 

enforcement periods, entry into, 

transiting, mooring, laying-up or 

anchoring within the enforced area of 

this safety zone by any person or vessel 

is prohibited unless authorized by the 

Captain of the Port, Sector Lake 

Michigan, or his or her designated 

representative. 

DATES: The regulations in 33 CFR 

165.930 will be enforced from 7:00 a.m. 

to 11:00 a.m. and from 1:00 p.m. to 5:00 

p.m. on November 14, 2012. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this notice, call 

or email MST1 Joseph McCollum, 

Prevention Department, Coast Guard 

Sector Lake Michigan, telephone 414– 

747–7148, email address 

Joseph.p.Mccollum@uscg.mil. 

SUPPLEMENTARY INFORMATION: The Coast 

Guard will enforce a segment of the 

Safety Zone; Brandon Road Lock and 

Dam to Lake Michigan including Des 

Plaines River, Chicago Sanitary and 

Ship Canal, Chicago River, CalumetSaganashkee Channel, Chicago, IL, 

listed in 33 CFR 165.930. Specifically, 

the Coast Guard will enforce this safety 

zone between Mile Marker 296.1 to Mile 

Marker 296.7 on all waters of the 

Chicago Sanitary and Ship Canal. 

Enforcement will occur from 7:00 a.m. 

until 11:00 a.m. and 1:00 p.m. until 5:00 

p.m. on November 14, 2012. 

This enforcement action is necessary 

because the Captain of the Port, Sector 

Lake Michigan has determined that the 

Illinois Department of Natural 

Resources netting and electro-fishing 

clearing operation poses risks to life and 

property. The passage of vessel traffic 

during the same time as the Operation 

makes the controlling of vessels through 

the impacted portion of the Chicago 

Sanitary and Ship Canal necessary to 

prevent injury and property loss. 

In accordance with the general 

regulations in § 165.23 of this part, entry 

into, transiting, mooring, laying up or 

anchoring within the enforced area of 

this safety zone by any person or vessel 

is prohibited unless authorized by the 

Captain of the Port, Sector Lake 

Michigan, or his or her designated 

representative. 

This notice is issued under authority 

of 33 CFR 165.930 and 5 U.S.C. 552(a). 

In addition to this notice in the Federal 

Register, the Captain of the Port, Sector 

Lake Michigan, will also provide notice 

through other means, which may 

include, but are not limited to, 

Broadcast Notice to Mariners, Local 

Notice to Mariners, local news media, 

distribution in leaflet form, and onscene oral notice. 

Additionally, the Captain of the Port, 

Sector Lake Michigan, may notify 

representatives from the maritime 

industry through telephonic and email 

notifications. 

Dated: October 11, 2012. 

M.W. Sibley, 

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

Port, Sector Lake Michigan. 

[FR Doc. 2012–26489 Filed 10–26–12; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2009–0805; EPA–R05– 

OAR–2012–0567; FRL–9742–4] 

Approval and Promulgation of Air 

Quality Implementation Plans; Illinois; 

Indiana; Michigan; Minnesota; Ohio; 

Wisconsin; Infrastructure SIP 

Requirements for the 2006 PM2.5

National Ambient Air Quality 

Standards; Indiana NSR/PSD 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is taking final action to 

approve most elements, and disapprove 

narrow portions of other elements, of 

State Implementation Plan (SIP) 

submissions by Illinois, Indiana, 

Michigan, Minnesota, Ohio, and 

Wisconsin regarding the infrastructure 

requirements of the Clean Air Act (CAA) 

for the 2006 24-hour fine particle 

national ambient air quality standards 

(2006 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. EPA is 

also taking final action to approve 

portions of a submission from Indiana 

addressing EPA’s requirements for its 

new source review (NSR) and 

prevention of significant deterioration 

(PSD) program. The proposed 

rulemaking was published on August 2, 

2012. During the comment period, 

which ended on September 4, 2012, 

EPA received five comment letters. The 

concerns raised in these letters, as well 

as EPA’s responses, will be addressed in 

this final action. 

DATES: This final rule is effective on 

November 28, 2012. 

ADDRESSES: EPA has established two 

dockets for this action under Docket ID 

No. EPA–R05–OAR–2009–0805 

(infrastructure SIP elements for all 

Region 5 States) and EPA–R05–OAR– 


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Federal Register / Vol. 77, No. 209 / Monday, October 29, 2012 / Rules and Regulations 65479 

1WDNR noted in a comment letter that its initial 

infrastructure SIP submission was dated December 

12, 2007. EPA observes, however, that the 

December 12, 2007, submission by WDNR only 

addresses the 1997 8-hour ground level ozone and 

1997 PM2.5 NAAQS, and not the 2006 PM2.5

NAAQS. 

2On June 14, 2012, the EPA Administrator signed 

a proposed rule that would strengthen various 

aspects of the existing PM2.5 NAAQS (see 77 FR 

38890). The State submittals and EPA’s rulemaking 

do not extend to these proposed NAAQS. 

2012–0567 (Indiana NSR/PSD 

elements). 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., Confidential Business 

Information or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publiclyavailable only in hard copy. Publiclyavailable docket materials are available 

either electronically in 

www.regulations.gov or in hard copy at 

the U.S. 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 of these SIP 

submissions? 

A. What State SIP submissions does this 

rulemaking address? 

B. Why did the States make these SIP 

submissions? 

C. What is the scope of this rulemaking? 

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 these SIP 

submissions? 

A. What State SIP submissions does this 

rulemaking address? 

This rulemaking addresses 

submissions 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). Each Region 5 State made SIP 

submissions on the following dates: 

Illinois—August 9, 2011, and 

supplemented on August 25, 2011, and 

June 27, 2012; Indiana—October 20, 

2009, and supplemented on June 25, 

2012, and July 12, 2012; Michigan— 

August 15, 2011, and supplemented on 

July 9, 2012; Minnesota—May 23, 2011, 

and supplemented on June 27, 2012; 

Ohio—September 4, 2009, and 

supplemented on June 3, 2011, and July 

5, 2012; and, Wisconsin—January 24, 

2011, and supplemented on March 28, 

2011, and June 29, 2012.1

Indiana also made a SIP submission 

intended to address various EPA 

requirements for its NSR and PSD 

programs. IDEM submitted revisions on 

July 12, 2012, for incorporation into its 

NSR and PSD program, and also 

requested that EPA approve these 

revisions as satisfying any applicable 

infrastructure SIP requirements for the 

2006 PM2.5 NAAQS. 

B. Why did the States make these SIP 

submissions? 

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

CAA, and implementing EPA policy, the 

States are required to submit 

infrastructure SIPs to ensure that their 

SIPs provide for implementation, 

maintenance, and enforcement of the 

NAAQS, including the 2006 PM2.5

NAAQS. These submissions must 

contain any revisions needed for 

meeting the applicable SIP requirements 

of section 110(a)(2), or certifications that 

their existing SIPs for particulate matter 

already met those requirements. 

EPA highlighted this statutory 

requirement in an October 2, 2007, 

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’’ (2007 

Memo). On September 25, 2009, EPA 

issued an additional guidance document 

pertaining to 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)’’ (2009 Memo). The 

SIP submissions referenced in this 

rulemaking pertain to the applicable 

requirements of sections 110(a)(1) and 

(2) of the CAA. The SIP submissions 

from the six Region 5 States being 

evaluated here address primarily the 

2006 PM2.5 NAAQS, with a narrow 

evaluation of the 1997 8-hour ozone 

NAAQS; this final rulemaking addresses 

only these pollutants as well.2

C. What is the scope of this rulemaking? 

As originally detailed in the proposed 

rulemaking, the applicable 

infrastructure SIP requirements are 

contained in section 110(a)(1) and (2) of 

the CAA. EPA is finalizing action of 

each Region 5 State’s satisfaction of the 

applicable requirements of section 

110(a)(2)(A) through section 

110(a)(2)(M), except for the elements 

detailed in the following paragraphs. 

This rulemaking will not cover four 

substantive areas that are not integral to 

acting on a State’s infrastructure SIP 

submission: (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’’); (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’’); (iii) existing 

provisions for minor source NSR 

programs that may be inconsistent with 

the requirements of the CAA and EPA’s 

regulations that pertain to such 

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

(iv) existing provisions for 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’’). Instead, EPA has indicated 

that it has other authority to address any 

such existing SIP defects in other 

rulemakings, as appropriate. A detailed 

rationale for why these four substantive 

areas are not part of the scope of 

infrastructure SIP rulemakings can be 

found in EPA’s July 13, 2011, final rule 

entitled, ‘‘Infrastructure SIP 

Requirements for the 1997 8-hour Ozone 

and PM2.5 National Ambient Air Quality 

Standards’’ in the section entitled, 

‘‘What is the scope of this final 

rulemaking?’’ (see 76 FR 41075 at 

41076–41079). 

In addition to the four substantive 

areas above, EPA is not acting in this 

action on portions of section 

110(a)(2)(D)(i)(I)—Interstate transport; 

section 110(a)(2)(E)(ii)—Adequate 

resources; and section 110(a)(2)(J)— 

Consultation with government officials, 


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65480 Federal Register / Vol. 77, No. 209 / Monday, October 29, 2012 / Rules and Regulations 

3See http://epa.gov/airtransport/. Notably, the 

Court of Appeals for the D.C. Circuit issued an 

opinion vacating CSAPR on August 21, 2012, and 

ordering EPA to continue administering the Clean 

Air Interstate Rule. 

public notifications, PSD, and visibility 

protection. EPA stated in our proposed 

rulemaking that we were not proposing 

to act on the portion of any Region 5 

State’s submission intended to address 

the interstate transport requirements of 

section 110(a)(2)(D)(i)(I) (see 77 FR 

45992 at 46000), nor were we proposing 

to approve or disapprove each Region 5 

State’s satisfaction of the state board 

requirements of section 110(a)(2)(E)(ii) 

(see 77 FR 45992 at 46002). We have 

previously finalized our rulemaking for 

the interstate transport requirements for 

Indiana and Ohio (see FR 43175), and 

we have yet to take action on the section 

110(a)(2)(D)(i)(I) portion of the SIP 

submissions from Illinois, Michigan, 

Minnesota, and Wisconsin. We will also 

take action on compliance with section 

110(a)(2)(E)(ii) for Illinois, Indiana, 

Michigan, Minnesota, Ohio, and 

Wisconsin at a later time. EPA is 

working with each of the Region 5 

States to address these requirements in 

the most appropriate way. 

With respect to the visibility 

protection requirements of section 

110(a)(2)(J), EPA notes that these 

requirements are different from those in 

section 110(a)(2)(D)(i)(II) in that the 

visibility protection requirements of 

section 110(a)(2)(J) are not ‘‘triggered’’ 

by the promulgation of a new or 

updated NAAQS. In other words, the 

visibility protection requirements of 

section 110(a)(2)(J) are not germane to 

infrastructure SIPs for the 2006 PM2.5

NAAQS. EPA realizes that our proposed 

rulemaking may have engendered 

confusion with respect to section 

110(a)(2)(J) (see 77 FR 45992 at 46005), 

and we want to clarify in this final 

action that the visibility protection 

requirements of section 110(a)(2)(J) are 

not germane to the infrastructure SIP for 

the 2006 PM2.5 NAAQS. EPA is also not 

acting on section 110(a)(2)(I)— 

Nonattainment Area Plan or Plan 

Revisions Under Part D, in its entirety. 

Instead, EPA takes action on part D 

attainment plans through separate 

processes. 

Furthermore, as a result of the current 

status of the Cross-State Air Pollution 

Rule (CSAPR),3 EPA is not finalizing 

action on portions of the interstate 

transport requirements for addressing 

visibility protection of section 

110(a)(2)(D)(i)(II) for certain Region 5 

States where we had previously 

proposed approval; the reasoning can be 

found in the following section. 

We are also not finalizing our action 

on narrow portions of Michigan’s 

infrastructure SIP for section 

110(a)(2)(C), section 110(a)(2)(D)(i)(II), 

and section 110(a)(2)(J), specifically 

with respect to the applicable 

requirements obligated by EPA’s final 

rule for the ‘‘Implementation of the New 

Source Review (NSR) Program for 

Particulate Matter Less than 2.5 

Micrometers (PM2.5)’’ (2008 NSR Rule) 

(see 73 FR 28321) and 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). On September 4, 

2012, MDEQ submitted a comment 

letter to EPA that requires more 

evaluation; the specific issues are 

described in the following section. 

Lastly, as a result of a comment 

received during the comment period, 

EPA is not finalizing action on a narrow 

portion of Indiana’s infrastructure SIP 

for section 110(a)(2)(C), section 

110(a)(2)(D)(i)(II), and section 

110(a)(2)(J), specifically for the source 

impact analysis requirements of the 

State’s PSD program as it relates to the 

2006 PM2.5 NAAQS; the specific issues 

are described in the following section. 

II. What is our response to comments 

received on the proposed rulemaking? 

The public comment period for EPA’s 

proposed action to approve most 

elements and disapprove narrow 

portions of other elements of 

submissions from the Region 5 States 

closed on September 4, 2012. EPA 

received five comment letters, and a 

synopsis of the significant individual 

comments contained in these letters, as 

well as EPA’s response to each 

comment, is discussed below. 

Comment 1: A comment letter was 

submitted on behalf of the Ohio Utility 

Group (OUG) and its member 

companies. While OUG generally 

supported EPA’s proposed actions with 

respect to Ohio’s infrastructure SIP for 

the 2006 PM2.5 NAAQS, the group 

recommended that EPA withdraw its 

prior disapproval of the portions of 

Ohio’s infrastructure SIP addressing the 

interstate transport requirements of 

section 110(a)(2)(D)(i)(I) (see 76 FR 

43175). Instead, OUG stated that it was 

EPA’s intent to implement a Federal 

Implementation Plan (FIP) in Ohio to 

meet these requirements, and that the 

finalized CSAPR was published in the 

Federal Register on August 8, 2011 (see 

76 FR 48208), as a FIP that would 

simultaneously remedy and replace the 

Clean Air Interstate Rule (CAIR). OUG 

noted that CSAPR was stayed by the 

U.S. Court of Appeals for the District of 

Columbia Circuit pending judicial 

review on December 31, 2011, and that 

the court also ordered EPA to continue 

administering CAIR. OUG further noted 

that on August 21, 2012, the court 

vacated and remanded CSAPR back to 

EPA, and again ordered EPA to continue 

administering CAIR. Therefore, OUG 

believes that EPA should withdraw its 

prior disapproval of Ohio’s interstate 

transport SIP, and propose approval of 

Ohio’s submissions intended to address 

the requirements of section 

110(a)(2)(D)(i)(I), making the emission 

reductions that have already occurred 

Federally enforceable. Lastly, OUG 

stated that when EPA issues a new 

interstate transport rule, EPA can then 

make a determination that the emission 

reductions as a result of Ohio’s 

interstate transport SIP are insufficient 

and require Ohio to develop an updated 

SIP. 

Response 1: In EPA’s August 2, 2012, 

proposed rulemaking, we stated that we 

were not proposing to approve or 

disapprove any provisions intended to 

address interstate transport 

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

(see 76 FR 45992 at 46000); with respect 

to Ohio, EPA noted that the disapproval 

of portions of Ohio’s infrastructure SIP 

for the 2006 PM2.5 NAAQS intended to 

address these requirements was 

finalized on July 20, 2011, and that the 

State did not have any SIP submission 

relevant to section 110(a)(2)(D)(i)(I) for 

the 2006 PM2.5 NAAQS pending before 

the Agency. In other words, OUG’s 

comments are not germane to today’s 

rulemaking. 

Comment 2: One commenter noted 

that although EPA had proposed 

approval for all Region 5 States (except 

for Michigan) as meeting the visibility 

protection requirement of section 

110(a)(2)(D)(i)(II), the Region 5 States’ 

visibility SIPs relied on CSAPR to 

satisfy the requirement of Best Available 

Retrofit Technology (BART) for electric 

generating units. Since CSAPR has been 

vacated with CAIR temporarily in place, 

the commenter asserts that there exists 

no current and permanent cross state air 

pollution rule for EPA and the Region 

5 States to rely on to satisfy the 

visibility protection requirements of 

section 110(a)(2)(D)(i)(II), which 

includes BART limits for electric 

generating units. Therefore, EPA must 

disapprove the portions of infrastructure 

SIPs intended to address the visibility 


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4EPA notes that the 2009 Memo distinguishes 

section 110(a)(2)(D)(i)(II) from the visibility element 

of section 110(a)(2)(J), which EPA believes is not 

germane in infrastructure SIPs for this NAAQS. 

5The Combined Pollutant Standards are 

contained in 35 Illinois Administrative Code 

225.233, and the Multi-Pollutant Standards are 

contained in 35 Illinois Administrative Code 

225.293–225.299. 

6Although the proposed action was published by 

the Federal Register on August 2, 2012, it was 

signed by the Regional Administrator on July 20, 

2012, before the statutory deadline for submission 

of the SIP revision addressing the PM2.5 increments 

had passed. 

protection requirements of section 

110(a)(2)(D)(i)(II). 

Response 2: The 2009 Memo 

recommends to states that the visibility 

protection requirements of section 

110(a)(2)(D)(i)(II) can be satisfied by an 

approved SIP addressing reasonably 

attributable visibility impairment, if 

required, and an approved SIP 

addressing regional haze.4 The 

commenter is correct in stating that if 

Region 5 States’ regional haze plans 

relied on CSAPR in the context of BART 

and electric generating units, the 

visibility protection requirements of 

section 110(a)(2)(D)(ii) would not be met 

because CSAPR has been vacated. 

However, the commenter is incorrect in 

his characterization of Illinois’ regional 

haze plan. Specifically, Illinois has two 

sets of provisions in its SIP rules that 

meet the BART requirement of electric 

generating units 5 without relying on 

CSAPR (or CAIR). EPA’s final approval 

of Illinois’ regional haze plan was 

published on July 6, 2012, (see 76 FR 

39943) and affirms that existing 

provisions in Illinois satisfy the BART 

requirement. 

In today’s rulemaking, EPA is not 

finalizing our proposed approval of the 

visibility protection requirements of 

section 110(a)(2)(D)(i)(II) for Indiana, 

Ohio, Minnesota, and Wisconsin. EPA is 

also not taking any action on the 

visibility protection requirements of 

section 110(a)(2)(D)(i)(II) for Michigan. 

EPA will take action on these States’ 

SIPs in a separate rulemaking. However, 

EPA is finalizing approval of Illinois’ 

satisfaction of the visibility protection 

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

in this rulemaking. 

Comment 3: The same commenter 

stated that the Indiana SIP is 

insufficient for purposes of the State’s 

PSD program for the 2006 PM2.5

NAAQS. The commenter observes that 

326 Indiana Administrative Code (IAC) 

2–2–5(a)(1) requires an analysis of a 

new or modified source’s emissions 

demonstrating that the emissions will 

not cause or contribute to air pollution 

in violation of any ambient air quality 

standard, as designated in 326 IAC 1–3. 

The language contained in 326 IAC 1– 

3 explicitly references only the 1997 

PM2.5 NAAQS, and not the 2006 PM2.5

NAAQS of 35 micrograms per cubic 

meter. Therefore, a literal read of 

Indiana’s PSD regulations indicates that 

a source impact analysis would only 

need to comply with the 1997 PM2.5

NAAQS. The commenter did note that 

326 IAC 2–1.1–5 contains language that 

would prohibit issuance of a 

registration, permit, modification 

approval, or operating permit revision if 

issuance would allow a source to cause 

or contribute to a violation of the 

NAAQS. 326 IAC 2–1.1–5 is currently 

not in the SIP, and the language 

contained therein has not been 

submitted by Indiana for incorporation 

into the SIP. 

Response 3: After evaluating the 

commenter’s points, EPA agrees that the 

State’s EPA-approved PSD SIP 

contained in 326 IAC 2–2–5(a) only 

requires a source impact analysis for 

PM2.5 to comply with the 1997 PM2.5

NAAQS, and not the 2006 PM2.5

NAAQS. 326 IAC 2–2–5(a) states that 

‘‘The owner or operator of the proposed 

major stationary source or major 

modification shall demonstrate that 

allowable emissions increases in 

conjunction with all other applicable 

emissions increases or reductions 

(including secondary emissions) will 

not cause or contribute to air pollution 

in violation of any: (1) Ambient air 

quality standard, as designated in 326 

IAC 1–3, in any air quality control 

region * * *’’ 326 IAC 1–3–4 contains 

the ambient air quality standards as they 

apply in Indiana; the 2006 PM2.5

NAAQS as codified in 40 CFR 50.13, 

has not been incorporated into this 

section. IDEM has informed EPA that 

the State is in the process of adopting 

revisions to its SIP, specifically 

contained in IAC 326 1–3–4, to 

incorporate the 2006 PM2.5 NAAQS as 

codified in 40 CFR 50.13. EPA is 

therefore not finalizing any action on 

this narrow portion of section 

110(a)(2)(C) for Indiana’s infrastructure 

SIP for the 2006 PM2.5 NAAQS; we will 

address the PSD source impact analysis 

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

the 2006 PM2.5 NAAQS in a separate 

rulemaking. EPA notes that there are 

also PSD requirements associated with 

section 110(A)(2)(D)(i)(II) and section 

110(a)(2)(J). As a result, we are also not 

finalizing any action on this narrow 

portion of section 110(a)(2)(D)(i)(II) and 

section 110(a)(2)(J) for Indiana’s 

infrastructure SIP for the 2006 PM2.5

NAAQS; we will address the same PSD 

source impact analysis requirements for 

the 2006 PM2.5 NAAQS in the same 

action for section 110(a)(2)(C). 

Comment 4: The same commenter as 

above also stated that Wisconsin’s PSD 

SIP does not contain the maximum 

allowable increases in ambient pollutant 

concentrations (increments) for PM2.5. 

The final rule for the ‘‘Prevention of 

Significant Deterioration (PSD) for 

Particulate Matter Less Than 2.5 

Micrometers (PM2.5)—Increments, 

Significant Impact Levels (SILs) and 

Significant Monitoring Concentration 

(SMC)’’ requiring states to incorporate 

increments into their PSD SIPs was 

published in the Federal Register on 

October 20, 2010 (2010 NSR Rule) (see 

75 FR 64864). This requirement was 

also codified in 40 CFR 51.166(c) and 40 

CFR 52.21(c). The 2010 NSR Rule 

required states to submit revisions to 

their SIPs addressing this required 

program element by July 20, 2012 (see 

75 FR 64864 at 64898). Therefore, 

because Wisconsin had not made 

revisions to its PSD SIP incorporating 

the increments by the deadline 

prescribed by the 2010 NSR Rule, EPA 

must disapprove the appropriate 

portions of the infrastructure SIP for the 

2006 PM2.5 NAAQS. The commenter did 

state that WDNR has applied the 

appropriate increments when issuing 

PSD permits. 

Response 4: The commenter asserts 

that EPA should now disapprove 

portions of Wisconsin’s infrastructure 

SIP for the 2006 PM2.5 NAAQS because, 

since the date of EPA’s proposal, the 

deadline for the submission of a SIP 

revision addressing the PM2.5

increments has passed. However, 

pursuant to the 2010 NSR Rule and 

CAA section 166(b), states were not 

required to submit a revised SIP 

addressing the PM2.5 increments until 

July 20, 2012. The Agency proposed 

action on the Wisconsin infrastructure 

SIP for the 2006 PM2.5 NAAQS in a 

notice signed on July 20, 2012.6

Therefore, on the date that the proposed 

rule was signed by the Agency, the 

PM2.5 increments were not required to 

be included in the Wisconsin SIP in 

order for Wisconsin to meet the PSD 

requirements of sections 110(a)(2)(C), 

(D)(i)(II), and (J) of the CAA. 

The commenter’s concerns relate to 

the timing of Agency action on 

collateral, yet related, SIP submissions. 

These concerns highlight an important 

overarching question that the EPA has 

to confront when assessing the various 

infrastructure SIP submittals addressed 

in the proposed rule: How to proceed 

when the timing and sequencing of 

multiple related SIP submissions impact 

the ability of the State and the Agency 

to address certain substantive issues in 


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7 ‘‘Condensables’’ are defined as gases that at 

ambient temperatures, could condense to form 

particulate matter. 

8 In the 2008 NSR Rule, EPA identified precursors 

to PM2.5 for the PSD program to be sulfur dioxide 

(SO2) and NOX (unless the state demonstrates to the 

Administrator’s satisfaction or EPA demonstrates 

that NOX emissions in an area are not a significant 

contributor to that area’s ambient PM2.5

concentrations). The 2008 NSR Rule also specifies 

that volatile organic compounds (VOCs) are not 

considered to be precursors to PM2.5 in the PSD 

program unless the state demonstrates to the 

Administrator’s satisfaction or EPA demonstrates 

that emissions of VOCs in an area are significant 

contributors to that area’s ambient PM2.5

concentrations. 

the infrastructure SIP submission in a 

reasonable fashion. 

It is appropriate for EPA to take into 

consideration the timing and sequence 

of related SIP submissions as part of 

determining what it is reasonable to 

expect a State to have addressed in an 

infrastructure SIP submission for a 

NAAQS at the time when the EPA acts 

on such submission. EPA has 

historically interpreted section 

110(a)(2)(C), section 110(a)(2)(D)(i)(II), 

and section 110(a)(2)(J) to require us to 

assess a State’s infrastructure SIP 

submission with respect to the thenapplicable and Federally enforceable 

PSD regulations required to be included 

in a State’s SIP at the time EPA takes 

action on the SIP. 

However, EPA does not consider it 

reasonable to interpret section 

110(a)(2)(C), section 110(D)(i)(II), and 

section 110(a)(2)(J) to require us to 

propose to disapprove a State’s 

infrastructure SIP submissions because 

the State had not yet, at the time of 

proposal, made a submission that was 

not yet due for the 2010 PM2.5 NSR 

Rule. To adopt a different approach by 

which EPA could not act on an 

infrastructure SIP, or at least could not 

approve an infrastructure SIP, whenever 

there was any impending revision to the 

SIP required by another collateral 

rulemaking action would result in 

regulatory gridlock and make it 

impracticable or impossible for EPA to 

act on infrastructure SIPs if EPA is in 

the process of revising collateral PSD 

regulations. EPA believes that such an 

outcome would be an unreasonable 

reading of the statutory process for the 

infrastructure SIPs contemplated in 

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

EPA acknowledges that it is important 

that these additional PSD program 

revisions be evaluated and approved 

into the State’s SIP in accordance with 

the CAA, and EPA intends to address 

the PM2.5 increments in a subsequent 

rulemaking. EPA appreciates the 

commenter’s point that Wisconsin has 

been applying the appropriate 

increments consistent with the 

requirements codified in 40 CFR 

52.21(c), and we will actively work with 

the State to ensure that these increments 

are correctly evaluated in permitting 

decisions. Furthermore, we will work 

with Wisconsin to ensure that revisions 

to its SIP incorporating these increments 

will be wholly consistent with the 

requirements obligated by the 2010 NSR 

Rule, as codified in 40 CFR 51.166(c) 

and 40 CFR 52.21(c). 

Comment 5: The same commenter as 

above agreed with EPA’s proposed 

disapproval of portions of Wisconsin’s 

infrastructure SIP for the 2006 PM2.5

NAAQS with respect to the explicit 

identification and regulation of 

condensable PM2.5 and PM10 in its PSD 

program.7 Wisconsin’s existing SIP 

contained in Wisconsin Administrative 

Code NR 400.02(123e)—NR 400.02(124) 

does not contain the explicit references 

to condensables in PM2.5 and PM10

emissions, as obligated by the 2008 NSR 

Rule. Furthermore, revisions to its PSD 

program submitted by WDNR on May 

11, 2011, do not contain the explicit 

identification or regulation of PM2.5 and 

PM10 condensables. However, the 

commenter notes that WDNR has been 

including condensable fraction of 

particulate matter in permits for 

facilities for many years, as alluded to 

in NR 415.09. The commenter suggests 

that EPA clarify that a final disapproval 

of Wisconsin’s infrastructure SIP for the 

2006 PM2.5 NAAQS with respect to the 

explicit identification and regulation of 

PM2.5 and PM10 condensables does ‘‘not 

negate or otherwise undermine the fact 

that all limits in all existing permits in 

Wisconsin already include condensable 

PM.’’ 

Response 5: EPA appreciates the 

commenter’s point that WDNR has 

historically considered some 

condensable PM in its permits. The SIPapproved portions of NR 415.09 include 

references to condensable particulate 

matter, as defined in NR 439.02(4). NR 

439 contains the requirements for 

reporting, recordkeeping, testing, 

inspection, and determination of 

compliance for air contaminant sources 

and their owners and operators. 

Specifically, NR 439.02(4) defines 

‘‘condensible[sic] particulate matter’’ as 

‘‘any material, except uncombined 

water, that may not be collected in the 

front half of the particulate emission 

sampling train but which exists as a 

solid or liquid at standard conditions.’’ 

EPA agrees that WDNR has the authority 

to regulate some condensables, and also 

agrees with the commenter that a final 

disapproval of portions of Wisconsin’s 

infrastructure SIP for the 2006 PM2.5

NAAQS with respect to the explicit 

identification and regulation of PM2.5

and PM10 condensables does not negate 

that WDNR has considered some 

condensable particulate matter in its 

permits. However, at this point in time, 

the State has not revised its SIP to 

contain the required explicit references 

to condensables that are necessary for 

purposes of the PSD program, and to 

make that requirement a Federally 

enforceable part of the State’s SIP. EPA 

will continue to work with the State to 

develop SIP revisions that account for 

PM2.5 and PM10 condensables in 

applicability determinations and 

permitting emissions limits, consistent 

with the 2008 NSR Rule. In the interim, 

we expect the State to correctly account 

for these condensables in applicability 

determinations and permitting 

emissions limits. 

Comment 6: MDEQ submitted a 

comment letter to EPA affirming that the 

State is adopting revisions to its rules 

that would be wholly consistent with 

the required infrastructure SIP 

requirements obligated by the 2008 NSR 

Rule and the Phase 2 Rule. MDEQ stated 

that the necessary revisions would be 

submitted to EPA imminently for 

incorporation into the SIP, specifically 

before the end of 2012, and also 

included the draft rules reflecting the 

appropriate revisions. The State urged 

EPA to issue a conditional approval for 

the relevant portions of its infrastructure 

SIP for the 2006 PM2.5 NAAQS in lieu 

of finalizing a narrow disapproval. 

Response 6: EPA appreciates MDEQ’s 

efforts in adopting revisions to its SIP to 

be wholly consistent with the required 

infrastructure SIP requirements 

obligated by the 2008 NSR Rule and the 

Phase 2 Rule. In our proposed 

rulemaking addressing the relevant 

requirements, EPA noted that the State 

is in the process of adopting required 

revisions to its regulations to: Address 

pollutants responsible for the secondary 

formation of PM2.5, i.e., precursors; 8

account for condensables in PM2.5 and 

PM10 applicability determinations and 

emission limits in NSR permits; and, 

explicitly identify oxides of nitrogen 

(NOX) as a precursor to ozone (see FR 

77 45995 at 45996–45998). EPA believes 

that MDEQ’s specific commitments, 

including the revisions in progress 

specific to the applicable requirements 

of the 2008 NSR Rule and the Phase 2 

Rule, as well as the time frame noted, 

i.e., prior to the end of 2012, require 

more evaluation. Therefore, in today’s 

rulemaking, EPA is not finalizing our 

proposed disapproval of portions of 

Michigan’s infrastructure SIP for the 

2006 PM2.5 NAAQS with respect to the 

PSD requirements contained in section 


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9See, e.g., http://www.epa.gov/reg5oair/permits/ 

const/frn-nsr.html. 

10EPA has also taken other actions germane to the 

explicit identification of NOX as a precursor to 

ozone in Federally approved PSD programs, e.g., 

‘‘Completeness Findings for Section 110(a) State 

Implementation Plans for the 8-hour Ozone 

NAAQS’’ (see 73 FR 16205), and ‘‘Partial 

Disapproval of ‘‘Infrastructure’’ State 

Implementation Plan’’ for Wisconsin (77 FR 35870). 

110(a)(2)(C), section 110(a)(2)(D)(i)(II), 

and section 110(a)(2)(J) to: Identify the 

precursors to PM2.5 consistent with the 

requirements of the 2008 NSR Rule; 

account for PM2.5 and PM10

condensables in applicability 

determinations and emissions limits for 

permits consistent with the 2008 NSR 

Rule; and, identify NOX as a precursor 

to ozone consistent with the Phase 2 

Rule. EPA will address Michigan’s 

satisfaction of these requirements in a 

separate rulemaking. In the interim, 

however, EPA expects Michigan to 

adhere to the requirements of the 2008 

NSR Rule with respect to the treatment 

and identification of PM2.5 precursors 

and the accounting for PM2.5 and PM10

condensables in applicability 

determinations and permitting 

emissions limits in its PSD program. We 

also expect Michigan to treat and 

explicitly identify NOX as a precursor to 

ozone for PSD permitting, consistent 

with the requirements of the Phase 2 

Rule. 

Comment 7: Ohio EPA submitted a 

comment letter to EPA disagreeing with 

our proposed disapproval of portions of 

its infrastructure SIP for the 2006 PM2.5

NAAQS intended to address the 

relevant requirements obligated by the 

2008 NSR Rule and the Phase 2 Rule. 

Ohio EPA observes that EPA proposed 

a narrow disapproval of portions of its 

infrastructure SIP intended to meet the 

PSD requirements of section 

110(a)(2)(C): Identifying PM2.5

precursors; identifying PM2.5 and PM10

condensables in the PSD program; and, 

identifying NOX as a precursor to ozone. 

Ohio notes that our proposed 

rulemaking states that ‘‘the 

infrastructure SIP 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.’’ Ohio also notes that under 

section 110(a)(2)(C), states are required 

to ‘‘include a program’’ for the 

regulation of the modification and 

construction of any stationary source to 

assure that NAAQS are achieved, 

including a permit program as required 

under parts C and D. Citing Ohio 

Revised Code (ORC) 3704.03, the State 

argues that the director of Ohio EPA has 

the authority to implement Ohio’s NSR 

program contained in Ohio 

Administrative Code (OAC) 3745–31. 

Specifically, OAC 3745–31–01 defines 

‘‘regulated NSR pollutant’’ as including 

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. Therefore, under 

this authority, Ohio EPA has been 

applying its PSD program in accordance 

with the 2008 NSR Rule and the Phase 

2 Rule, and as a result—Ohio EPA meets 

the requirement of section 110(a)(2)(C) 

to ‘‘include a program’’ that meets parts 

C and D. Ohio EPA asserts that EPA 

must approve these elements of Ohio’s 

SIP because the State has met the 

infrastructure SIP requirements for 

including a program that assures the 

PM2.5 NAAQS is addressed in Ohio’s 

permit program, even absent Ohio 

submitting revisions to its PSD 

regulations as mandated by the 2008 

NSR Rule and Phase 2 Rule. 

Response 8: While it is true that Ohio 

EPA has included a program under parts 

C and D of the CAA in its SIP, and that 

EPA has approved various aspects of the 

State’s PSD program in the past,9 EPA 

explained in our proposed rulemaking 

that the 2008 NSR Rule and Phase 2 

Rule now obligate states to make 

explicit regulatory changes in order to 

clarify and remove any ambiguity 

concerning the requirements to 

specifically identify PM2.5 precursors, to 

properly account for PM2.5 and PM10

condensables, and to treat NOX as a 

precursor to ozone in permitting 

contexts. EPA recognizes that Ohio 

currently has some authority to treat 

SO2 and NOX as presumed precursors to 

PM2.5, and in a similar manner, to treat 

NOX as a precursor to ozone in 

permitting decisions. Our proposed 

rulemaking also recognized that Ohio 

EPA is in the process of adopting 

revisions to its PSD program to be 

wholly consistent with the applicable 

infrastructure SIP requirements 

obligated by the 2008 NSR Rule and 

Phase 2 Rule (see FR 77 45995 at 45996– 

45998). EPA’s regulations as codified in 

40 CFR 51.166(b)(49)(i) and 40 CFR 

52.21(b)(50)(i) for PM2.5 precursors, and 

40 CFR 51.166(b)(49)(vi) and 40 CFR 

52.21(b)(50)(vi) for PM2.5 and PM10

condensables, required states to make 

specific revisions by May 16, 2011 (see 

73 FR 28321 at 28341). Because Ohio 

has not yet made these required 

revisions, however, EPA is finalizing a 

disapproval of these narrow portions of 

Ohio’s infrastructure SIP for the 2006 

PM2.5 NAAQS. Likewise, the changes 

obligated by the Phase 2 Rule to 

explicitly identify NOX as a precursor to 

ozone and codified in 40 CFR 

51.166(b)(1)(ii), 40 CFR 51.166(b)(2)(ii), 

40 CFR 51.166(b)(23)(i), 40 CFR 

51.166(49)(i), and footnote 1 to 40 CFR 

51.166(i)(5)(i)(e) required states to 

submit specific revisions to EPA by June 

15, 2007 (see 70 FR 71612 at 71683). 

Because Ohio has not yet made these 

required revisions, EPA is finalizing a 

disapproval of this narrow portion of 

Ohio’s infrastructure SIP for the 2006 

PM2.5 NAAQS.10 EPA will work actively 

with the State to ensure that the 

necessary SIP revisions are completed 

as expeditiously as possible. In the 

interim, we expect the State to adhere 

to the requirements of the 2008 NSR 

Rule with respect to the treatment and 

identification of PM2.5 precursors and 

the accounting for PM2.5 and PM10

condensables applicability 

determinations and permitting 

emissions limits in its PSD program. We 

also expect Ohio to treat and explicitly 

identify NOX as a precursor to ozone for 

PSD permitting consistent with the 

requirements of the Phase 2 Rule. 

Comment 9: WDNR submitted a 

comment letter to EPA disagreeing with 

our proposed disapproval of portions of 

its infrastructure SIP for the 2006 PM2.5

NAAQS intended to address the 

relevant requirements obligated by the 

2008 NSR Rule. WDNR states that EPA 

proposed a narrow disapproval of 

portions of its infrastructure SIP 

intended to meet the PSD requirements 

of section 110(a)(2)(C): Identifying PM2.5

precursors; and, identifying PM2.5 and 

PM10 condensables in the PSD program. 

Wisconsin notes that our proposed 

rulemaking states that ‘‘the 

infrastructure SIP 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.’’ Wisconsin also notes that 

under section 110(a)(2)(C), states are 

required to ‘‘include a program’’ for the 

regulation of the modification and 

construction of any stationary source to 

assure that NAAQS are achieved, 

including a permit program as required 

under parts C and D of CAA section 

110(A)(2). Wisconsin argues that its 

infrastructure SIP submissions have 

clearly stated that WDNR has the 

resources and authorities necessary to 

implement and satisfy the requirements 

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

for PM2.5 and PM10. 

Citing the definition of ‘‘regulated 

NSR air contaminant’’ in Wisconsin 

Administrative Code NR 405.02(25i) as 

including ‘‘any contaminant for which a 

national ambient air quality standard 

has been promulgated and any 


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11See, e.g., http://www.epa.gov/reg5oair/permits/ 

const/frn-nsr.html. 

12Note that EPA has already finalized the 

disapproval of narrow portions of Wisconsin’s 

infrastructure SIP for the 1997 ozone and PM2.5

NAAQS with respect to the NOX as a precursor to 

ozone provisions per the Phase 2 Rule (see 77 FR 

35870). 

constituents or precursors for the air 

contaminant identified by the 

administrator,’’ the State asserts that it 

has been applying the PSD program in 

accordance with the explicit 

identification of precursor(s) to PM2.5

and ozone, consistent with the 2008 

NSR Rule and Phase 2 Rule. 

Furthermore, the State observes that all 

permits issued by WDNR address these 

requirements as codified by EPA, or 

through EPA guidance under the 

authority provided in Wisconsin State 

Statute and Wisconsin Administrative 

Code. WDNR therefore contends that it 

has met the requirements of section 

110(a)(2)(C) to include a program that 

meets part C and D. 

WDNR also notes that it has been 

accounting for condensable particulate 

matter in its PSD permitting program 

since the beginning of the program; 

particulate matter and particulate matter 

emissions have been defined to include 

condensables since 1989 and have been 

a part of the approved SIP since 1993. 

Wisconsin asserts that EPA must 

approve these elements of Wisconsin’s 

infrastructure SIP, because WDNR has 

met the applicable requirements. 

Response 9: While it is true that 

WDNR has included a program required 

under parts C and D of the CAA in its 

SIP, and EPA has approved various 

aspects of the State’s PSD program in 

the past,11 EPA explained in our 

proposed rulemaking that the 2008 NSR 

Rule and Phase 2 Rule now obligate 

states to make explicit regulatory 

changes in order to clarify and remove 

any ambiguity concerning the 

requirements to explicitly identify PM2.5

precursors, to properly account for 

PM2.5 and PM10 condensables, and to 

treat NOX as a precursor to ozone in 

permitting contexts.12 Our proposed 

rulemaking referenced Wisconsin’s 

definition of ‘‘regulated NSR air 

contaminant’’ as providing generic 

language to define what constitutes a 

regulated NSR pollutant; however, the 

State’s current rules do not contain 

provisions that would directly account 

for PM2.5 and its precursors in NSR 

permitting. EPA’s regulations as 

codified in 40 CFR 51.166(b)(49)(i) and 

40 CFR 52.21(b)(50)(i) for PM2.5

precursors, required states to make 

specific revisions by May 16, 2011. 

Because Wisconsin has not yet made 

these required revisions, EPA is 

finalizing a disapproval of this narrow 

portion of Wisconsin’s infrastructure 

SIP for the 2006 PM2.5 NAAQS with 

respect to the explicit identification of 

PM2.5 precursors. With respect to 

accounting for particulate matter 

condensables in its PSD permitting 

program, EPA recognizes that Wisconsin 

Administrative Code NR 439 contains 

the requirements for reporting, 

recordkeeping, testing, inspection, and 

determination of compliance for air 

contaminant sources and their owners 

and operators. Of note, NR 439.02(4) 

defines ‘‘condensible [sic] particulate 

matter’’ as ‘‘any material, except 

uncombined water, that may not be 

collected in the front half of the 

particulate emission sampling train but 

which exists as a solid or liquid at 

standard conditions.’’ However, 

Wisconsin’s current SIP does not 

contain the explicit language to account 

for PM2.5 and PM10 condensables in 

applicability determinations and 

permitting decisions, as required by 40 

CFR 51.166(b)(49)(vi) and 40 CFR 

52.21(b)(50)(vi), and to date, the State 

has not made a submission with such 

revisions. As a result of EPA’s own 

regulations and the May 16, 2011 

deadline for submitting revisions 

consistent with the 2008 NSR Rule, we 

are finalizing the disapproval of this 

narrow portion of Wisconsin’s 

infrastructure SIP for the 2006 PM2.5

NAAQS with respect to the explicit 

regulation of PM2.5 and PM10

condensables in permits. EPA will work 

actively with the State to ensure that the 

necessary SIP revisions are completed 

as expeditiously as possible. We will 

work with Wisconsin to rectify these 

issues promptly, and in the interim, we 

expect the State to adhere to the 

requirements of the 2008 NSR Rule with 

respect to the treatment and 

identification of PM2.5 precursors and 

the accounting for PM2.5 and PM10

condensables in applicability 

determinations and permitting 

emissions limits in its PSD program. 

Although not germane to this action, we 

also expect Wisconsin to treat and 

explicitly identify NOX as a precursor to 

ozone for PSD permitting consistent 

with the requirements of the Phase 2 

Rule. 

III. What action is EPA taking? 

For the reasons discussed in the 

proposed rulemaking, EPA is taking 

final action to approve most elements 

and disapprove narrow portions of other 

elements of submissions from the EPA 

Region 5 States certifying that the 

current SIPs are sufficient to meet the 

required infrastructure elements under 

sections 110(a)(1) and (2) for the 2006 

PM2.5 NAAQS. EPA is also taking final 

action to approve portions of a 

submission from Indiana intended to 

meet EPA’s requirements for the NSR 

and PSD programs in that State. 

Specifically, they are: (i) 326 IAC 2–1.1– 

1(2); (ii) 326 IAC 2–1.1–1(10); (iii) 326 

IAC 2–2–1(dd)(1); (iv) 326 IAC 2–2– 

1(ff)(7); (v) 326 IAC 2–2–1(ss)(1); (vi) 

326 IAC 2–2–1(ww)(1)(F); (vii) 326 IAC 

2–2–1(ww)(1)(G); and, (viii) 326 IAC 2– 

2–4(b)(2)(vi). As detailed in our 

proposed rulemaking, these revisions 

are wholly consistent with the 

infrastructure SIP requirements 

associated with the 2008 NSR Rule and 

the Phase 2 Rule. 

Due to the current status of CSAPR, 

EPA is not finalizing our previously 

proposed approval for the interstate 

transport requirements addressing 

visibility protection of section 

110(a)(2)(D)(i)(II) for Indiana, Ohio, 

Minnesota, and Wisconsin for the 2006 

PM2.5 NAAQS. EPA is also not taking 

any action on Michigan’s satisfaction of 

these requirements. As explained in the 

comments and responses section, EPA is 

finalizing our previously proposed 

approval of Illinois’ infrastructure SIP 

for the interstate transport requirements 

addressing visibility protection of 

section 110(a)(2)(D)(i)(II). 

As a result of a comment letter 

submitted by the State of Michigan, EPA 

is not finalizing our previously 

proposed disapproval of narrow 

portions of section 110(a)(2)(C), section 

110(a)(2)(D)(i)(II), and section 

110(a)(2)(J) for the State. Instead, EPA 

will address Michigan’s satisfaction of 

the applicable PSD requirements 

obligated by the 2008 NSR Rule and the 

Phase 2 Rule in a separate rulemaking. 

Lastly, as a result of a comment received 

during the public comment period, EPA 

is not finalizing its proposed approval of 

the submission from Indiana with 

respect to one narrow issue that relates 

to section 110(a)(2)(C), (D)(i)(II), and (J). 

Specifically, EPA will address the PSD 

source impact analysis requirements for 

the 2006 PM2.5 NAAQS in the State of 

Indiana in a later action. 

EPA’s final actions for each Region 5 

State’s satisfaction of infrastructure SIP 

requirements, by element of section 

110(a)(2) are contained in the table 

below. 


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13 In addition to the information provided in this 

table for the State of Indiana, EPA reiterates once 

again that we are not finalizing any action with 

respect to the PSD source impact analysis 

requirements of section 110(a)(2)(C), (D)(i)(II), and 

(J) for the 2006 PM2.5 NAAQS. 

14Although not specific to this action, EPA will 

also continue to work with WDNR to ensure that 

revisions to the State’s PSD program contain 

provisions that explicitly identify NOX as a 

precursor to ozone, consistent with the Phase 2 

Rule. 

Element IL IN 13 OH MI MN WI 

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: PM2.5 precursors for PSD ................................................................. * D A D NA * D D 

C3: PM2.5 and PM10 condensables for PSD ........................................... * D A D NA * D D 

C4: NOX as a precursor to ozone for PSD ............................................. * D A D NA * D NA 

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

D1: Contribute to nonattainment/interfere with maintenance of NAAQS NA NA NA NA NA NA 

D2: PSD ................................................................................................... **   **  ** ** 

D3: Visibility Protection ............................................................................ A NA NA NA NA NA 

D4: Interstate Pollution Abatement .......................................................... * D A A A * D A 

D5: International Pollution Abatement ..................................................... A A A A A A 

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

E: State boards ........................................................................................ NA NA NA NA NA NA 

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

G: Emergency powers ............................................................................. 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 ............................................................................. + + + + + + 

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

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

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. 

D Disapprove. 

+ Not relevant in these actions. 

* Federally promulgated rules in place. 

** Previously discussed in element (C). 

As originally described in the 

proposed rulemaking, EPA is finalizing 

disapproval of the infrastructure SIP 

submissions from Illinois and 

Minnesota with respect to certain PSD 

requirements including: (i) The explicit 

identification of SO2 and NOX as PM2.5

precursors consistent with the 

requirements of the 2008 NSR Rule; (ii) 

the regulation of PM2.5 and PM10

condensables consistent with the 

requirements of the 2008 NSR Rule; (iii) 

the explicit identification of NOX as a 

precursor to ozone consistent with the 

Phase 2 Rule; and, (iv) permitting of 

GHG emitting sources at the Federal 

Tailoring Rule thresholds. 

EPA is also finalizing the disapproval 

of the infrastructure SIP submissions 

from Illinois and Minnesota with 

respect to the requirements of section 

110(a)(2)(D)(ii) related to interstate 

pollution abatement. Specifically, this 

section requires states with PSD 

programs have provisions requiring a 

new or modified source to notify 

neighboring states of the potential 

impacts from the source, consistent with 

the requirements of section 126(a). 

However, Illinois and Minnesota have 

no further obligations as a result of this 

disapproval because Federally 

promulgated rules, promulgated at 40 

CFR 52.21 are in effect in each of these 

States. EPA has delegated the authority 

to Illinois and Minnesota to administer 

these rules, which include provisions 

related to PSD and interstate pollution 

abatement. This final disapproval for 

Illinois and Minnesota for these 

infrastructure SIP requirements will not 

result in sanctions under section 179(a), 

nor will it obligate EPA to promulgate 

a FIP within two years of final action if 

the States do not submit revisions to 

their PSD SIPs addressing these 

deficiencies. Instead, Illinois and 

Minnesota are already subject to the 

Federally promulgated PSD regulations, 

and both States administer these 

regulations via EPA’s delegated 

authority. 

The grounds for EPA’s final 

disapproval of portions of the 

infrastructure SIP submittals from Ohio 

and Wisconsin are very narrow, and 

pertain only to these specific 

deficiencies in the States’ SIPs 

described in the relevant sections of the 

proposed rulemaking, as well as in the 

responses to comments section of 

today’s rulemaking. 

As previously discussed, EPA 

believes that Ohio has been actively 

preparing necessary revisions to its PSD 

program, consistent with the 

requirements of the Phase 2 Rule and 

the 2008 NSR Rule. We will work with 

the State to rectify these issues 

promptly. In addition, EPA will work 

with WDNR to account for the explicit 

identification of precursors to PM2.5, as 

well as PM2.5 and PM10 condensables, in 

its PSD program.14

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 

Ohio or Wisconsin to meet either of 

those requirements. Therefore, 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 


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65486 Federal Register / Vol. 77, No. 209 / Monday, October 29, 2012 / Rules and Regulations 

promulgates such FIP. As detailed in the 

proposed rulemaking, EPA anticipates 

that Ohio EPA will make submissions 

rectifying each of the deficiencies that 

are the basis for the disapprovals in this 

action. Further, EPA anticipates acting 

on the anticipated submissions from the 

State within the two year time frame 

prior to our FIP obligation on these very 

narrow issues. In the interim, EPA 

expects Ohio to treat and explicitly 

identify NOX as a precursor to ozone for 

PSD permitting consistent with the 

requirements of the Phase 2 Rule. EPA 

also expects the State to adhere to the 

requirements of the 2008 NSR Rule with 

respect to the treatment and 

identification of PM2.5 precursors and 

the accounting for PM2.5 and PM10

condensables in applicability 

determinations and permitting 

emissions limits in its PSD program. 

EPA will actively work with 

Wisconsin to incorporate changes to its 

PSD program that explicitly identify 

PM2.5 precursors and account for PM2.5

and PM10 condensables in applicability 

determinations and permitting 

emissions limits, consistent with the 

2008 NSR Rule. In the interim, EPA 

expects WDNR to adhere to the 

associated requirements of the 2008 

NSR Rule in its PSD program, 

specifically with respect to the explicit 

identification of PM2.5 precursors, and 

the accounting for PM2.5 and PM10

condensables in applicability 

determinations and permitting 

emissions limits. 

VI. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve State choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely approves State law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by State law. For that 

reason, this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive 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 CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, 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. 

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: September 26, 2012. 

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. 

■ 2. Section 52.731 is amended by 

adding paragraph (c) to read as follows: 

§ 52.731 Section 110(a)(2) infrastructure 

requirements. 

* * * * * 

(c) Approval and Disapproval—In an 

August 9, 2011, submittal, and 

supplemented on August 25, 2011, and 

June 27, 2012, Illinois 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 not 

taking action on (D)(i)(I) and the state 

board requirements of (E)(ii). Although 

EPA is disapproving portions of Illinois’ 

submission addressing the prevention of 

significant deterioration, Illinois 

continues to implement the Federally 

promulgated rules for this purpose as 

they pertain to (C), (D)(i)(II), (D)(ii), and 

(J). 

■ 3. In § 52.770: 

■ a. The table in paragraph (c) is 

amended by adding an entry in 

numerical order for ‘‘2–1.1–1’’, and 

revising the entries for ‘‘2–2–1’’, and 

‘‘2–2–4’’. 

■ b. The table in paragraph (e) is 

amended by adding entries in 

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

Infrastructure Requirements for the 2006 

24-Hour PM2.5 NAAQS’’. 

The revised and added text reads as 

follows: 

§ 52.770 Identification of plan. 

* * * * * 

(c) * * * 

EPA-APPROVED INDIANA REGULATIONS

Indiana 

citation Subject Indiana effective date EPA approval date Notes 

*******

2–1.1–1 ........ Definitions ...................................... July 11, 2012 .... October 29 2012, [Insert page 

number where the document begins].

(2) and (10) only. 


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Federal Register / Vol. 77, No. 209 / Monday, October 29, 2012 / Rules and Regulations 65487 

EPA-APPROVED INDIANA REGULATIONS—Continued 

Indiana 

citation Subject Indiana effective date EPA approval date Notes 

*******

2–2–1 ........... Definitions ...................................... July 11, 2012 .... October 29 2012, [Insert page 

number where the document begins].

(dd)(1), (ff)(7), (ss)(1), (ww)(1)(F), 

and (ww)(1)(G) only. 

* * * * * * * 

2–2–4 ........... Air quality analysis; requirements .. July 11, 2012 .... October 29 2012, [Insert page 

number where the document begins].

(b)(2)(vi) only. 

* * * * * * * 

* * * * * (e) * * * 

EPA-APPROVED INDIANA NONREGULATORY AND QUASI-REGULATORY PROVISIONS

Title Indiana date EPA approval Explanation 

*******

Section 110(a)(2) Infrastructure Requirements 

for the 2006 24-Hour 

PM2.5 NAAQS.

10/20/2009, 6/25/2012, 7/ 

12/2012.

10/29/2012, [Insert page 

number where the document begins].

This action addresses the following CAA elements: 

110(a)(2)(A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (G), 

(H), (J), (K), (L), and (M). We are not finalizing action on the PSD source impact analysis requirements of section 110(a)(2)(C), (D)(i)(II), and (J), the 

visibility protection requirements of (D)(i)(II), and the 

state board requirements of (E)(ii). We will address 

these requirements in a separate action. 

* * * * * * * 

■ 4. In § 52.1170, the table in paragraph 

(e) is amended by adding an entry at the 

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

Infrastructure Requirements for the 2006 

24-Hour 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 2006 

24-Hour PM2.5

NAAQS.

Statewide .......... 8/15/2011, 7/9/2012 .... 10/29/2012, [Insert 

page number where 

the document begins].

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

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

are not taking action on the visibility protection requirements of (D)(i)(II) and the state 

board requirements of (E)(ii). We will address these requirements in a separate action. We are taking no action on portions of 

Michigan’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 Phase 2 

Rule (identification of NOX as a precursor to 

ozone) with respect to section 110(a)(2)(C), 

(D)(i)(II), and (J). 

■ 5. In § 52.1220, the table in paragraph 

(e) is amended by adding an entry in 

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

Infrastructure Requirements for the 2006 

24-Hour PM2.5 NAAQS’’ to read as 

follows: 

§ 52.1220 Identification of plan. 

* * * * * 

(e) * * * 


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65488 Federal Register / Vol. 77, No. 209 / Monday, October 29, 2012 / Rules and Regulations 

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 2006 

24-Hour Ozone 

NAAQS.

Statewide .......... 5/23/2011, 6/27/2012 

(submittal dates).

10/29/2012, [Insert 

page number where 

the document begins].

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

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

are not finalizing action on the visibility protection requirements of (D)(i)(II) or the state 

board requirements of (E)(ii). We will address these requirements in a separate action. Although EPA is disapproving portions 

of Minnesota’s submission addressing the 

prevention of significant deterioration, Minnesota continues to implement the Federally 

promulgated rules for this purpose as they 

pertain to section 110(a)(2)(C), (D)(i)(II), 

(D)(ii), and (J). 

* * * * * * * 

■ 6. Section 52.1891 is amended by 

adding paragraph (c) to read as follows: 

§ 52.1891 Section 110(a)(2) infrastructure 

requirements. 

* * * * * 

(c) Approval and Disapproval—In a 

September 4, 2009 submittal, 

supplemented on June 3, 2011, and July 

5, 2012, Ohio 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. We are not 

finalizing action on the visibility 

protection requirements of (D)(i)(II) or 

the state board requirements of (E)(ii). 

We will address these requirements in 

a separate action. We are disapproving 

narrow portions of Ohio’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 Phase 

2 Rule (identification of NOX as a 

precursor to ozone) with respect to 

section 110(a)(2)(C), (D)(i)(II), and (J). 

■ 7. Section 52.2591 is amended by 

adding paragraph (e) to read as follows: 

§ 52.2591 Section 110(a)(2) infrastructure 

requirements. 

* * * * * 

(e) 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. We are not 

finalizing action on (D)(i)(I), the 

visibility protection requirements of 

(D)(i)(II), 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) with respect to 

section 110(a)(2)(C), (D)(i)(II), and (J). 

[FR Doc. 2012–26289 Filed 10–26–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2008–0929; FRL–9746–2] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Maryland; Attainment Demonstration 

for the 1997 8-Hour Ozone National 

Ambient Air Quality Standard for the 

Philadelphia-Wilmington-Atlantic City 

Moderate Nonattainment Area 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving the 

attainment demonstration portion of the 

attainment plan submitted by the State 

of Maryland as a State Implementation 

Plan (SIP) revision. The Maryland SIP 

revision demonstrates attainment of the 

1997 8-hour ozone national ambient air 

quality standard (NAAQS) for the 

Philadelphia-Wilmington-Atlantic City, 

PA–NJ–MD–DE moderate 

nonattainment area (Philadelphia Area) 

by the applicable attainment date of 

June 2011. EPA is approving the SIP 

revision in accordance with the 

requirements of the Clean Air Act 

(CAA). 

DATES: This final rule is effective on 

November 28, 2012. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

Number EPA–R03–OAR–2008–0929. All 

documents in the docket are listed in 

the www.regulations.gov Web site. 

Although listed in the electronic docket, 

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 for 

public inspection during normal 

business hours at the Air Protection 

Division, U.S. Environmental Protection 

Agency, Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103. 

Copies of the State submittal are 

available at the Maryland Department of 

the Environment, 1800 Washington 

Boulevard, Suite 705, Baltimore, 

Maryland 21230. 

FOR FURTHER INFORMATION CONTACT: Rose 

Quinto, (215) 814–2182, or by email at 

quinto.rose@epa.gov. 

SUPPLEMENTARY INFORMATION: 


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