Federal Register / Vol. 81, No. 190 / Friday, September 30, 2016 / Proposed Rules 67261 

• Confidential Submissions—To 

submit a comment with confidential 

information that you do not wish to be 

made publicly available, submit your 

comment only as a written/paper 

submission. You should submit two 

copies total. One copy will include the 

information you claim to be confidential 

with a heading or cover note that states 

‘‘THIS DOCUMENT CONTAINS 

CONFIDENTIAL INFORMATION.’’ The 

Agency will review this copy, including 

the claimed confidential information, in 

its consideration of comments. The 

second copy, which will have the 

claimed confidential information 

redacted/blacked out, will be available 

for public viewing and posted on http:// 

www.regulations.gov. Submit both 

copies to the Division of Dockets 

Management. If you do not wish your 

name and contact information to be 

made publicly available, you can 

provide this information on the cover 

sheet and not in the body of your 

comments and you must identify this 

information as ‘‘confidential.’’ Any 

information marked as ‘‘confidential’’ 

will not be disclosed except in 

accordance with 21 CFR 10.20 and other 

applicable disclosure law. For more 

information about FDA’s posting of 

comments to public dockets, see 80 FR 

56469, September 18, 2015, or access 

the information at: http://www.fda.gov/ 

regulatoryinformation/dockets/

default.htm. 

Docket: For access to the docket to 

read background documents or the 

electronic and written/paper comments 

received, go to http://

www.regulations.gov and insert the 

docket number, found in brackets in the 

heading of this document, into the 

‘‘Search’’ box and follow the prompts 

and/or go to the Division of Dockets 

Management, 5630 Fishers Lane, Rm. 

1061, Rockville, MD 20852. 

FOR FURTHER INFORMATION CONTACT: 

Chelsea Trull, Center for Veterinary 

Medicine, Food and Drug 

Administration, 7519 Standish Pl., 

Rockville, MD 20855, 240–402–6729, 

chelsea.trull@fda.hhs.gov. 

SUPPLEMENTARY INFORMATION: Under the 

Federal Food, Drug, and Cosmetic Act 

(section 409(b)(5) (21 U.S.C. 348(b)(5)), 

notice is given that the food additive 

petition (FAP 2286) filed by BASF 

Corp., 100 Park Ave., Florham Park, NJ 

07932 proposing to amend Title 21 of 

the Code of Federal Regulations (CFR) 

in part 573 Food Additives Permitted in 

Feed and Drinking Water of Animals (21 

CFR part 573) to provide for the safe use 

of feed grade sodium formate as a feed 

acidifying agent in complete swine 

feeds, also proposed that FDA amend 

the animal food additive regulations for 

formic acid (§ 573.480) and ammonium 

formate (§ 573.170) to limit formic acid 

and formate salts from all added sources 

to 1.2 percent of complete feed when 

multiple sources of formic acid and its 

salts are used in combination. This 

element of the petition was not 

described in the July 25, 2014, notice of 

petition (79 FR 43325). 

Elsewhere in this issue of the Federal 

Register, FDA is publishing a regulation 

providing for the safe use of feed grade 

sodium formate as a feed acidifying 

agent in complete swine feeds. 

The potential environmental impact 

of this action is being reviewed. The 

Agency will prepare a claim of 

categorical exclusion or an 

environmental assessment to evaluate 

the potential environmental impacts of 

these actions. Interested persons may 

submit to the Division of Dockets 

Management (see ADDRESSES) either 

electronic or written comments 

regarding this document. It is only 

necessary to send one set of comments. 

Identify comments with the docket 

number found in brackets in the 

heading of this document. Received 

comments may be seen in the Division 

of Dockets Management between 9 a.m. 

and 4 p.m., Monday through Friday. 

FDA will also place on public display 

any comments on potential 

environmental impact without further 

announcement in the Federal Register. 

If FDA determines a categorical 

exclusion applies, neither an 

environmental assessment nor an 

environmental impact statement is 

required. If FDA determines a 

categorical exclusion does not apply, 

FDA will prepare an environmental 

assessment and place it on public 

display at the Division of Dockets 

Management (see DATES and ADDRESSES) 

for public review and comment. 

Dated: September 26, 2016. 

Tracey H. Forfa, 

Deputy Director, Center for Veterinary 

Medicine. 

[FR Doc. 2016–23645 Filed 9–29–16; 8:45 am] 

BILLING CODE 4164–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2016–0134; FRL–9953–51– 

Region 5] 

Air Plan Approval; Wisconsin; NOX as 

a Precursor to Ozone, PM2.5 Increment 

Rules and PSD Infrastructure SIP 

Requirements 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing approval of 

a revision to Wisconsin’s state 

implementation plan (SIP), revising 

portions of the State’s Prevention of 

Significant Deterioration (PSD) and 

ambient air quality programs to address 

deficiencies identified in EPA’s 

previous narrow infrastructure SIP 

disapprovals and Finding of Failure to 

Submit. This SIP revision request is 

consistent with the Federal PSD rules 

and addresses the required elements of 

the fine particulate matter (PM2.5) PSD 

Increments, Significant Impact Levels 

(SILs) and Significant Monitoring 

Concentration (SMC) Rule. EPA is also 

proposing to approve elements of SIP 

submissions from Wisconsin regarding 

PSD infrastructure requirements of 

section 110 of the Clean Air Act (CAA) 

for the 1997 PM2.5, 1997 ozone, 2006 

PM2.5, 2008 lead, 2008 ozone, 2010 

nitrogen dioxide (NO2), 2010 sulfur 

dioxide (SO2), and 2012 PM2.5 National 

Ambient Air Quality Standards 

(NAAQS). The infrastructure 

requirements are designed to ensure that 

the structural components of each 

state’s air quality management program 

are adequate to meet the state’s 

responsibilities under the CAA. 

DATES: Comments must be received on 

or before October 31, 2016. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R05– 

OAR–2016–0134 at http://

www.regulations.gov, or via email to 

damico.genevieve@epa.gov. For 

comments submitted at Regulations.gov, 

follow the online instructions for 

submitting comments. Once submitted, 

comments cannot be edited or removed 

from Regulations.gov. For either manner 

of submission, EPA may publish any 

comment received to its public docket. 

Do not submit electronically any 

information you consider to be 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 


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The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. EPA will generally not consider 

comments or comment contents located 

outside of the primary submission (i.e. 

on the web, cloud, or other file sharing 

system). For additional submission 

methods, please contact the person 

identified in the FOR FURTHER

INFORMATION CONTACT section. For the 

full EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

http://www2.epa.gov/dockets/ 

commenting-epa-dockets. 

FOR FURTHER INFORMATION CONTACT: 

Andrea Morgan, Environmental 

Engineer, Air Permitting Section, Air 

Programs Branch (AR–18J), 

Environmental Protection Agency, 

Region 5, 77 West Jackson Boulevard, 

Chicago, Illinois 60604, (312) 353–6058, 

morgan.andrea@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? 

II. What is EPA’s review of these SIP 

submissions? 

III. What action is EPA taking? 

IV. Incorporation by Reference 

V. Statutory and Executive Order Reviews 

I. What is the background of these SIP 

submissions? 

On August 8, 2016, the Wisconsin 

Department of Natural Resources 

(WDNR) submitted a SIP revision 

request to EPA to revise portions of its 

PSD and ambient air quality programs to 

address deficiencies identified in EPA’s 

previous narrow infrastructure SIP 

disapprovals and Finding of Failure to 

Submit (FFS). Final approval of this SIP 

revision request will be consistent with 

the Federal PSD requirements and will 

address the required elements of the 

PM2.5 PSD Increments, SILs and SMC 

Rule. Wisconsin submitted revisions to 

its rules NR 404 and 405 of the 

Wisconsin Administrative Code. The 

submittal requests that EPA approve the 

following revisions to Wisconsin’s SIP: 

(1) Amend NR 404.05 (2) (intro); (2) 

create NR 404.05(2) (am); (3) amend NR 

404.05(3) (intro); (4) create NR 404.05(3) 

(am); (5) amend NR 404.05(4) (intro); (6) 

create NR 404.05(4) (am); (7) amend NR 

405.02(3), (21)(a), and (21m)(a); (8) 

create NR 405.02(21m)(c); (9) amend NR 

405.02(22)(b) and (22m)(a)1. and (b)1.; 

(10) create NR 405.02(22m)(a)3.; (11) 

amend NR 405.02(27)(a)6.; (12) amend 

NR 405.07(8)(a)3m; (13) create NR 

405.07(8)(a)3m (Note); and (14) amend 

NR 405.07(8)(a)5. (Note). 

WDNR also requested that this SIP 

revision supplement the PSD portions of 

its previously submitted infrastructure 

submittals, including 1997 PM2.5, 1997 

ozone, 2006 PM2.5, 2008 lead, 2008 

ozone, 2010 NO2, SO2, and 2012 PM2.5. 

A. PSD Rule Revisions 

1. PM2.5 Increments 

To implement the PM2.5 NAAQS, EPA 

issued two separate final rules that 

establish the New Source Review (NSR) 

permitting requirements for PM2.5: The 

NSR PM2.5 Implementation Rule 

promulgated on May 16, 2008 (73 FR 

28321), and the PM2.5 PSD Increments, 

SILs and SMC Rule promulgated on 

October 20, 2010 (75 FR 64864). EPA’s 

2008 NSR PM2.5 Implementation Rule 

required states to submit applicable SIP 

revisions to EPA no later than May 16, 

2011, to address this rule’s PSD and 

nonattainment NSR SIP requirements. 

This rule requires that the state submit 

revisions to its SIP, including the 

identification of precursors for PM2.5, 

the significant emissions rates for PM2.5

and the requirement to include 

emissions which may condense to form 

particulate matter at ambient 

temperatures, known as condensables, 

in permitting decisions. EPA published 

a final approval of a revision to 

Wisconsin’s SIP on October 16, 2014, 

(79 FR 62008), which included all of the 

required elements of the 2008 NSR 

Implementation Rule. 

The PM2.5 PSD Increments, SILs and 

SMC Rule required states to submit SIP 

revisions to EPA by July 20, 2012, 

adopting provisions equivalent to or at 

least as stringent as the PM2.5 PSD 

increments and associated 

implementing regulations. On August 

11, 2014, EPA published a finding that 

Wisconsin had failed to submit the 

required elements of the PM2.5 PSD 

Increments, SILs and SMC Rule (79 FR 

46703). 

The PM2.5 PSD Increments, SILs and 

SMC Rule also allows states to 

discretionarily adopt and submit for 

EPA approval: (1) SILs, which are used 

as a screening tool to evaluate the 

impact a proposed new major source or 

major modification may have on the 

NAAQS or PSD increment; and (2) a 

SMC (also a screening tool), which is 

used to determine the subsequent level 

of data gathering required for a PSD 

permit application for emissions of 

PM2.5. However, on January 22, 2013, 

the United States Court of Appeals for 

the District of Columbia (Court) granted 

a request from EPA to vacate and 

remand to EPA the portions of the PM2.5

PSD Increments, SILs and SMC Rule 

PM2.5 addressing the SILs for PM2.5 so 

that EPA could voluntarily correct an 

error in these provisions. The Court also 

vacated parts of the PM2.5 PSD 

Increments, SILs and SMC Rule 

establishing a PM2.5 SMC, finding that 

EPA was precluded from using the 

PM2.5 SMCs to exempt permit applicants 

from the statutory requirement to 

compile preconstruction monitoring 

data. Sierra Club v. EPA, 705 F.3d 458, 

463–69. On December 9, 2013, EPA 

issued a good cause final rule formally 

removing the affected SILs and 

replacing the SMC with a numeric value 

of 0 micrograms per cubic meter (mg/m3) 

and a note that no exemption is 

available with regard to PM2.5. See 78 

FR 73698. As a result, SIP submittals 

could no longer include the vacated 

PM2.5 SILs at 40 CFR 51.166(k)(2) and 

52.21(k)(2) and the PM2.5 SMC must be 

revised to 0 mg/m3, consistent with 40 

CFR 51.166(i)(5)(i)(c) and 

52.21(i)(5)(i)(c). 

2. Ozone 

On November 29, 2005, EPA 

published (70 FR 71612) in the Federal 

Register the ‘‘Final Rule to Implement 

the 8-Hour Ozone National Ambient Air 

Quality Standard—Phase 2’’. Part of this 

rule established, among other 

requirements, oxides of nitrogen (NOX) 

as a precursor to ozone. The final rule 

became effective on January 30, 2006. 

On October 6, 2015, EPA finalized 

approval of revisions to Wisconsin’s SIP 

that included the identification of NOX

as a precursor to ozone in the definition 

of regulated NSR pollutant. See 79 FR 

60064. 

B. Infrastructure SIP Submittals 

The requirement for states to make a 

SIP submission of this type arises out of 

CAA section 110(a)(1). Pursuant to 

section 110(a)(1), states must make SIP 

submissions ‘‘within 3 years (or such 

shorter period as the Administrator may 

prescribe) after the promulgation of a 

national primary ambient air quality 

standard (or any revision thereof),’’ and 

these SIP submissions are to provide for 

the ‘‘implementation, maintenance, and 

enforcement’’ of such NAAQS. The 

statute directly imposes on states the 

duty to make these SIP submissions, 

and the requirement to make the 

submissions is not conditioned upon 

EPA’s taking any action other than 

promulgating a new or revised NAAQS. 

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

specific elements that ‘‘[e]ach such 

plan’’ submission must address. 

This specific rulemaking is only 

taking action on the PSD elements of the 

Wisconsin infrastructure submittals. 


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Federal Register / Vol. 81, No. 190 / Friday, September 30, 2016 / Proposed Rules 67263 

1PM10 refers to particles with diameters less than 

10 microns, oftentimes referred to as ‘‘coarse’’ 

particles. 

Separate action has been or will be 

taken on the non-PSD infrastructure 

elements in separate rulemakings. The 

infrastructure elements for PSD are 

found in CAA 110(a)(2)(C), 110(a)(2)(D), 

and 110(a)(2)(J) and will be discussed in 

detail below. For further discussion on 

the background of infrastructure 

submittals, see 77 FR 45992. 

II. What is EPA’s review of these SIP 

submissions? 

A. PSD Rule Revisions 

EPA has evaluated WDNR’s proposed 

revision to the Wisconsin SIP in 

accordance with the Federal 

requirements governing state permitting 

programs. The revisions described in 

section I above are intended to update 

the Wisconsin SIP to comply with the 

current rules and address deficiencies 

identified by EPA in its previous SIP 

disapprovals. As discussed below, EPA 

is proposing to approve these revisions 

because they meet Federal 

requirements. 

1. PM2.5

The PM2.5 PSD Increments, SILs and 

SMC Rule finalized several new 

requirements for states to revise their 

SIPs to incorporate increments for 

PM2.5. Specifically, the rule requires a 

state’s submitted PSD SIP revision to 

adopt and submit for EPA approval the 

PM2.5 increments issued pursuant to 

section 166(a) of the CAA to prevent 

significant deterioration of air quality in 

areas meeting the NAAQS. States were 

also required to adopt and submit for 

EPA approval revisions to the 

definitions for ‘‘major source baseline 

date,’’ ‘‘minor source baseline date,’’ 

and ‘‘baseline area’’ as part of the 

implementing regulations for the PM2.5

increments. The PM2.5 increments are 

codified in 40 CFR 51.166(c)(1) and 40 

CFR 52.21(c)(1). For class I areas the 

maximum allowable increase is codified 

as 1 mg/m3 determined on an annual 

arithmetic mean, and a 24-hr maximum 

of 2 mg/m3. For class II areas the 

maximum allowable increase is 4 mg/m3

determined on an annual arithmetic 

mean, and a 24-hr maximum of 9 mg/m3. 

For class III areas the maximum 

allowable increase is 8 mg/m3

determined on an annual arithmetic 

mean, and a 24-hr maximum of 

18 mg/m3. Wisconsin incorporated these 

maximum allowable increases for PM2.5

into their rules at NR 404.05(2) (intro) 

and (am); NR 404.05(3) (intro) and (am); 

and NR 404.05(4) (intro) and (am) for 

the class I, class II, and class III 

increments, respectively. As Wisconsin 

has utilized the same maximum 

allowable increases as the Federal 

regulations, their revisions are found to 

be consistent with the Federal 

regulations. 

States were also required to adopt and 

submit for EPA approval revisions to the 

definitions for ‘‘major source baseline 

date,’’ ‘‘minor source baseline date,’’ 

and ‘‘baseline area’’ as part of the 

implementing regulations for the PM2.5

increments. Wisconsin’s revisions to the 

definition of ‘‘major source baseline 

date,’’ at NR 405.02(21m)(a) and (c), 

clarifies that the baseline date for 

particulate matter less than 10 

micrometers (PM10) is January 6, 1975, 

and adds October 20, 2010, as the major 

source baseline date for PM2.5. This is 

consistent with the Federal definition at 

40 CFR 51.166(b)(14)(i). Wisconsin’s 

revisions to the definition of ‘‘minor 

source baseline date’’ at NR 

405.02(22m)(a)1. and 3., clarify that the 

trigger date for PM10 is January 6, 1975, 

and establish October 20, 2011, as the 

trigger date for PM2.5. The revisions to 

NR 405.02(22m)(b)(1) revise the 

definition of baseline date to update 

references to the U.S. Code of Federal 

Regulations. These revisions are 

consistent with the definition of ‘‘minor 

source baseline date’’ at 40 CFR 

51.166(b)(14)(ii). The State revised the 

definition of ‘‘Baseline area’’ at NR 

405.02(3) to explicitly identify pollutant 

air quality impacts that would define a 

baseline area where a minor source 

baseline date is already established. 

This revision is consistent with 40 CFR 

51.166(b)(14)(ii)(c). 

Wisconsin also revised provisions 

pertaining to the PM2.5 SMC to be 

consistent with Federal requirements 

after the January 22, 2013, Court 

decision. WDNR’s revision to NR 

405.07(8)(a)3m. revises the PM2.5 SMC 

to 0 mg/m3 and NR 

405.07(8)(a)3m.(Note) adds a note that 

no exemption is available with regard to 

PM2.5. These revisions are consistent 

with the language in 40 CFR 

51.166(i)(5)(i)(c) regarding the SMC for 

PM2.5. 

2. Ozone 

The ‘‘Final Rule to Implement the 

8-Hour Ozone National Ambient Air 

Quality Standard—Phase 2’’ required 

states to make revisions to their PSD 

programs to establish NOX as a 

precursor to ozone. Specifically, NOX

was required to be identified as a 

precursor to ozone in the definition of 

major stationary source, the definition 

of major modification, the definition of 

significant, the definition of regulated 

NSR pollutant, and the SMC for ozone. 

Wisconsin’s revisions to the 

definition of ‘‘major modification’’ in 

NR 405.02(21)(a) states that any net 

emission increase at major stationary 

source that is significant for NOX or 

volatile organic compounds (VOCs) 

shall be considered significant for 

ozone. This is consistent with the 

Federal requirements of 40 CFR 

51.166(b)(2)(ii). Wisconsin’s revisions to 

the definition of ‘‘Major Stationary 

Source’’ at NR 405.02(22)(b) add that a 

major stationary source that is major for 

NOX shall be considered major for 

ozone. This is consistent with the 

Federal definition at 40 CFR 

51.166(b)(1). Wisconsin’s revisions to 

NR 405.07(8)(a)5.(note) revise the SMC 

for ozone to provide that sources with 

a net increase of 100 tons per year of 

NOX need to perform an ambient impact 

analysis for ozone. This matches the 

note at 40 CFR 51.166(i)(5)(i)(f).1 The 

revisions to the definition of 

‘‘Significant’’ at NR 405.02(27)(a)6. adds 

a significant emission rate for ozone of 

40 tons per year of nitrogen oxides. This 

is consistent with the Federal 

requirements of 40 CFR 51.166(b)(23)(i). 

Because Wisconsin’s requested 

revisions are consistent with the 

applicable requirements found in 

Federal regulations, EPA is proposing to 

approve the requested revisions. 

B. Infrastructure SIP Submittals 

PSD infrastructure elements are 

addressed in different sections of the 

CAA: Sections 110(a)(2)(C), 

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

1. Section 110(a)(2)(C)—Program for 

Enforcement of Control Measures; PSD 

States are required to include a 

program providing for enforcement of 

all SIP measures and the regulation of 

construction of new or modified 

stationary sources to meet NSR 

requirements under PSD and 

nonattainment new source review 

(NNSR) programs. Part C of the CAA 

(sections 160–169B) addresses PSD, 

while part D of the CAA (sections 171– 

193) addresses NNSR requirements. 

The evaluation of each state’s 

submission addressing the 

infrastructure SIP requirements of 

section 110(a)(2)(C) covers: (i) 

Enforcement of SIP measures; (ii) PSD 

provisions that explicitly identify NOX

as a precursor to ozone in the PSD 

program; (iii) identification of 

precursors to PM2.5 and the 

identification of PM2.5 and PM10 1

condensables in the PSD program; (iv) 

PM2.5 increments in the PSD program; 


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67264 Federal Register / Vol. 81, No. 190 / Friday, September 30, 2016 / Proposed Rules 

2EPA highlights 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’’ and has issued additional guidance 

documents, the most recent on September 13, 2013, 

‘‘Guidance on Infrastructure State Implementation 

Plan (SIP) Elements under Clean Air Act Sections 

110(a)(1) and (2)’’ (2013 memo). 

3EPA notes that on January 4, 2013, the U.S. 

Court of Appeals for the D.C. Circuit, in Natural 

Resources Defense Council v. EPA, 706 F.3d 428 

(D.C. Cir.), held that EPA should have issued the 

2008 NSR Rule in accordance with the CAA’s 

requirements for PM10 nonattainment areas (Title I, 

Part D, subpart 4), and not the general requirements 

for nonattainment areas under subpart 1. As the 

subpart 4 provisions apply only to nonattainment 

areas, EPA does not consider the portions of the 

2008 rule that address requirements for PM2.5

attainment and unclassifiable areas to be affected by 

the court’s opinion. Moreover, EPA does not 

anticipate the need to revise any PSD requirements 

promulgated by the 2008 NSR Rule in order to 

comply with the court’s decision. Accordingly, 

EPA’s approval of Wisconsin’s infrastructure SIP as 

to elements (C), (D)(i)(II), or (J) with respect to the 

PSD requirements promulgated by the 2008 

implementation rule does not conflict with the 

court’s opinion. 

The court’s decision with respect to the 

nonattainment NSR requirements promulgated by 

the 2008 implementation rule also does not affect 

EPA’s action on the present infrastructure action. 

EPA interprets the CAA to exclude nonattainment 

area requirements, including requirements 

associated with a nonattainment NSR program, 

from infrastructure SIP submissions due three years 

after adoption or revision of a NAAQS. Instead, 

these elements are typically referred to as 

nonattainment SIP or attainment plan elements, 

which would be due by the dates statutorily 

prescribed under subparts 2 through 5 under part 

D, extending as far as 10 years following 

designations for some elements. 

and, (v) Greenhouse Gas (GHG) 

permitting and the ‘‘Tailoring Rule.’’ 2

(i) Enforcement of SIP Measures 

The enforcement of SIP measures 

provision was approved in previous 

rulemakings. 

(ii) PSD Provisions That Explicitly 

Identify NOX as a Precursor to Ozone in 

the PSD Program 

EPA’s ‘‘Final Rule to Implement the 8- 

Hour Ozone National Ambient Air 

Quality Standard—Phase 2; Final Rule 

to Implement Certain Aspects of the 

1990 Amendments Relating to New 

Source Review and Prevention of 

Significant Deterioration as They Apply 

in Carbon Monoxide, Particulate Matter, 

and Ozone NAAQS; Final Rule for 

Reformulated Gasoline’’ (Phase 2 Rule) 

was published on November 29, 2005 

(see 70 FR 71612). Among other 

requirements, the Phase 2 Rule 

obligated states to revise their PSD 

programs to explicitly identify NOX as 

a precursor to ozone (70 FR 71612 at 

71679, 71699–71700). This requirement 

was codified in 40 CFR 51.166. 

The Phase 2 Rule required that states 

submit SIP revisions incorporating the 

requirements of the rule, including 

those identifying NOX as a precursor to 

ozone, by June 15, 2007 (see 70 FR 

71612 at 71683, November 29, 2005). 

EPA is proposing to approve revisions 

to Wisconsin’s PSD SIP reflecting these 

requirements in today’s rulemaking, and 

therefore is proposing to find that 

Wisconsin has met this set of 

infrastructure SIP requirements of 

section 110(a)(2)(C) with respect to the 

1997 PM2.5, 1997 ozone, 2006 PM2.5, 

2008 lead, 2008 ozone, 2010 NO2, 2010 

SO2, and 2012 PM2.5 NAAQS. 

(iii) Identification of Precursors to PM2.5

and the Identification of PM2.5 and PM10

Condensables in the PSD Program 

On May 16, 2008 (see 73 FR 28321), 

EPA issued the Final Rule on the 

‘‘Implementation of the New Source 

Review Program for Particulate Matter 

Less than 2.5 Micrometers’’ (2008 NSR 

Rule). The 2008 NSR Rule finalized 

several new requirements for SIPs to 

address sources that emit direct PM2.5

and other pollutants that contribute to 

secondary PM2.5 formation. One of these 

requirements is for NSR permits to 

address pollutants responsible for the 

secondary formation of PM2.5, otherwise 

known as precursors. In the 2008 rule, 

EPA identified precursors to PM2.5 for 

the PSD program to be SO2 and NOX

(unless the state demonstrates to the 

Administrator’s satisfaction or EPA 

demonstrates that NOX emissions in an 

area are not a significant contributor to 

that area’s ambient PM2.5

concentrations). The 2008 NSR Rule 

also specifies that VOCs are not 

considered to be precursors to PM2.5 in 

the PSD program unless the state 

demonstrates to the Administrator’s 

satisfaction or EPA demonstrates that 

emissions of VOCs in an area are 

significant contributors to that area’s 

ambient PM2.5 concentrations. 

The explicit references to SO2, NOX, 

and VOCs as they pertain to secondary 

PM2.5 formation are codified at 40 CFR 

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

52.21(b)(50)(i)(b). As part of identifying 

pollutants that are precursors to PM2.5, 

the 2008 NSR Rule also required states 

to revise the definition of ‘‘significant’’ 

as it relates to a net emissions increase 

or the potential of a source to emit 

pollutants. Specifically, 40 CFR 

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

52.21(b)(23)(i) define ‘‘significant’’ for 

PM2.5 to mean the following emissions 

rates: 10 Tons per year (tpy) of direct 

PM2.5; 40 tpy of SO2; and 40 tpy of NOX

(unless the state demonstrates to the 

Administrator’s satisfaction or EPA 

demonstrates that NOX emissions in an 

area are not a significant contributor to 

that area’s ambient PM2.5

concentrations). The deadline for states 

to submit SIP revisions to their PSD 

programs incorporating these changes 

was May 16, 2011 (see 73 FR 28321 at 

28341).3

The 2008 NSR Rule did not require 

states to immediately account for gases 

that could condense to form particulate 

matter, known as condensables, in PM2.5

and PM10 emission limits in NSR 

permits. Instead, EPA determined that 

states had to account for PM2.5 and PM10

condensables for applicability 

determinations and in establishing 

emissions limitations for PM2.5 and 

PM10 in PSD permits beginning on or 

after January 1, 2011. This requirement 

is codified in 40 CFR 51.166(b)(49)(i)(a) 

and 40 CFR 52.21(b)(50)(i)(a). Revisions 

to states’ PSD programs incorporating 

the inclusion of condensables were 

required be submitted to EPA by May 

16, 2011 (see 73 FR 28321 at 28341). 

EPA approved revisions to 

Wisconsin’s PSD SIP reflecting these 

requirements on October 16, 2014 (see 

79 FR 62008), and therefore proposes 

that Wisconsin has met this set of 

infrastructure SIP requirements of 

section 110(a)(2)(C) with respect to the 

1997 PM2.5, 1997 ozone, 2006 PM2.5, 

2008 lead, 2008 ozone, 2010 NO2, 2010 

SO2, and 2012 PM2.5 NAAQS. 

(iv) PM2.5 Increments in the PSD 

Program 

On October 20, 2010, EPA issued the 

final rule on the ‘‘Prevention of 

Significant Deterioration for Particulate 

Matter Less Than 2.5 Micrometers— 

Increments, Significant Impact Levels 

and Significant Monitoring 

Concentration’’ (2010 NSR Rule). This 

rule established several components for 

making PSD permitting determinations 

for PM2.5, including a system of 

‘‘increments,’’ which is the mechanism 

used to estimate significant 

deterioration of ambient air quality for 

a pollutant. These increments are 

codified in 40 CFR 51.166(c) and 40 

CFR 52.21(c), and are included in the 

table below. 

TABLE 1—PM2.5 INCREMENTS ESTABLISHED BY THE 2010 NSR RULE IN

MICROGRAMS PER CUBIC METER

Annual 

arithmetic 

mean 

24-hour 

max 

Class I ............... 1 2 

Class II .............. 4 9 

Class III ............. 8 18 


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The 2010 NSR Rule also established a 

new ‘‘major source baseline date’’ for 

PM2.5 as October 20, 2010, and a new 

trigger date for PM2.5 as October 20, 

2011. These revisions are codified in 40 

CFR 51.166(b)(14)(i)(c) and (b)(14)(ii)(c), 

and 40 CFR 52.21(b)(14)(i)(c) and (ii)(c). 

Lastly, the 2010 NSR Rule revised the 

definition of ‘‘baseline area’’ to include 

a level of significance of 0.3 micrograms 

per cubic meter, annual average, for 

PM2.5. This change is codified in 40 CFR 

51.166(b)(15)(i) and 40 CFR 

52.21(b)(15)(i). 

EPA is proposing to approve revisions 

to Wisconsin’s PSD SIP reflecting these 

requirements in today’s rulemaking, and 

therefore is proposing to find that 

Wisconsin has met this set of 

infrastructure SIP requirements for 

section 110(a)(2)(C) with respect to the 

1997 PM2.5, 1997 ozone, 2006 PM2.5, 

2008 lead, 2008 ozone, 2010 NO2, 2010 

SO2, and 2012 PM2.5 NAAQS. 

(v) GHG Permitting and the ‘‘Tailoring 

Rule’’ 

With respect to CAA Sections 

110(a)(2)(C) and (J), EPA interprets the 

CAA to require each state to make an 

infrastructure SIP submission for a new 

or revised NAAQS that demonstrates 

that the air agency has a complete PSD 

permitting program meeting the current 

requirements for all regulated NSR 

pollutants. The requirements of section 

110(a)(2)(D)(i)(II) may also be satisfied 

by demonstrating the air agency has a 

complete PSD permitting program 

correctly addressing all regulated NSR 

pollutants. Wisconsin has shown that it 

currently has a PSD program in place 

that covers all regulated NSR pollutants, 

including GHGs. 

On June 23, 2014, the United States 

Supreme Court issued a decision 

addressing the application of PSD 

permitting requirements to GHG 

emissions. Utility Air Regulatory Group 

v. Environmental Protection Agency, 

134 S.Ct. 2427. The Supreme Court said 

that the EPA may not treat GHGs as an 

air pollutant for purposes of 

determining whether a source is a major 

source required to obtain a PSD permit. 

The Court also said that the EPA could 

continue to require that PSD permits, 

otherwise required based on emissions 

of pollutants other than GHGs, contain 

limitations on GHG emissions based on 

the application of Best Available 

Control Technology (BACT). 

In order to act consistently with its 

understanding of the Court’s decision, 

the EPA no longer applies EPA 

regulations that would require that SIPs 

include the permitting requirements 

that the Supreme Court found 

impermissible. Specifically, EPA is not 

applying the requirement that a state’s 

SIP-approved PSD program require that 

sources obtain PSD permits when GHGs 

are the only pollutant (i) that the source 

emits or has the potential to emit above 

the major source thresholds, or (ii) for 

which there is a significant emissions 

increase and a significant net emissions 

increase from a modification (e.g. 40 

CFR 51.166(b)(48)(v)). 

EPA anticipates a need to revise 

Federal PSD rules and for many states 

to revise their existing SIP-approved 

PSD programs in light of the Supreme 

Court opinion. The timing and content 

of subsequent EPA actions with respect 

to the EPA regulations and state PSD 

program approvals are expected to be 

informed by additional legal process 

before the United States Court of 

Appeals for the District of Columbia. At 

this juncture, EPA is not expecting 

states to have revised their PSD 

programs for purposes of infrastructure 

SIP submissions and is only evaluating 

such submissions to ensure that the 

state’s program correctly addresses 

GHGs consistent with the Supreme 

Court’s decision. 

At present, EPA is proposing that 

Wisconsin’s SIP is sufficient to satisfy 

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

with respect to GHGs, because the PSD 

permitting program previously 

approved by EPA into the SIP continues 

to require that PSD permits (otherwise 

required based on emissions of 

pollutants other than GHGs) contain 

limitations on GHG emissions based on 

the application of BACT. Although the 

approved Wisconsin PSD permitting 

program may currently contain 

provisions that are no longer necessary 

in light of the Supreme Court decision, 

this does not render the infrastructure 

SIP submission inadequate to satisfy 

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

The SIP contains the necessary PSD 

requirements and the application of 

those requirements is not impeded by 

the presence of other previouslyapproved provisions regarding the 

permitting of sources of GHGs that EPA 

does not consider necessary at this time 

in light of the Supreme Court decision. 

For the purposes infrastructure SIPs, 

EPA reiterates that NSR Reform 

regulations are not within the scope of 

these actions. Therefore, we are not 

taking action on existing NSR Reform 

regulations for Wisconsin. EPA 

approved Wisconsin’s minor NSR 

program on January 18, 1995 (see 60 FR 

3543); and since that date, WDNR and 

EPA have relied on the existing minor 

NSR program to ensure that new and 

modified sources not captured by the 

major NSR permitting programs do not 

interfere with attainment and 

maintenance of the NAAQS. 

Certain sub-elements in this section 

overlap with elements of section 

110(a)(2)(D)(i) and 110(a)(2)(J). These 

links will be discussed in the 

appropriate areas below. 

2. Section 110(a)(2)(D)(i)(II)—Interstate 

Transport 

Section 110(a)(2)(D)(i)(II) requires that 

SIPs include provisions prohibiting any 

source or other type of emissions 

activity in one state from interfering 

with measures required to prevent 

significant deterioration of air quality or 

to protect visibility in another state. 

EPA notes that Wisconsin’s 

satisfaction of the applicable 

infrastructure SIP PSD requirements for 

the 1997 PM2.5, 1997 ozone, 2006 PM2.5, 

2008 lead, 2008 ozone, 2010 NO2, 2010 

SO2, and 2012 PM2.5 NAAQS have been 

detailed in the section addressing 

section 110(a)(2)(C). EPA further notes 

that the proposed actions in that section 

related to PSD are consistent with the 

proposed actions related to PSD for 

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

reiterated below. 

EPA has previously approved or is 

proposing in today’s action to approve 

revisions to Wisconsin’s SIP that meet 

certain requirements required by the 

Phase 2 Rule and the 2008 NSR Rule. 

These revisions included provisions 

that: Explicitly identify NOX as a 

precursor to ozone, explicitly identify 

SO2 and NOX as precursors to PM2.5, 

and regulate condensable PM2.5 and 

PM10 in applicability determinations 

and in establishing emissions limits. 

EPA is also proposing in today’s action 

to approve revisions to Wisconsin’s SIP 

that incorporate the PM2.5 increments 

and the associated implementation 

regulations including the major source 

baseline date, trigger date, and level of 

significance for PM2.5 per the 2010 NSR 

Rule. EPA is proposing that Wisconsin’s 

SIP contains provisions that adequately 

address the 1997 PM2.5, 1997 ozone, 

2006 PM2.5, 2008 lead, 2008 ozone, 2010 

NO2, 2010 SO2, and 2012 PM2.5 NAAQS. 

States also have an obligation to 

ensure that sources located in 

nonattainment areas do not interfere 

with a neighboring state’s PSD program. 

One way that this requirement can be 

satisfied is through an NNSR program 

consistent with the CAA that addresses 

any pollutants for which there is a 

designated nonattainment area within 

the state. 

Wisconsin’s EPA-approved NNSR 

regulations found in Part 2 of the SIP, 

specifically in chapter NR 408 of the 

Wisconsin Administrative Code, are 

consistent with 40 CFR 51.165, or 40 


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67266 Federal Register / Vol. 81, No. 190 / Friday, September 30, 2016 / Proposed Rules 

CFR part 51, appendix S. Therefore, 

EPA proposes that Wisconsin has met 

all of the applicable PSD requirements 

for the 1997 PM2.5, 1997 ozone, 2006 

PM2.5, 2008 lead, 2008 ozone, 2010 NO2, 

2010 SO2, and 2012 PM2.5 NAAQS for 

transport prong 3 related to section 

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

3. Section 110(a)(2)(J)—Consultation 

With Government Officials; Public 

Notifications; PSD; Visibility Protection 

States must meet applicable 

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

related to PSD. WDNR’s PSD program in 

the context of infrastructure SIPs has 

already been discussed in the 

paragraphs addressing section 

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

EPA notes that the proposed actions for 

those sections are consistent with the 

proposed actions for this portion of 

section 110(a)(2)(J). Therefore, EPA 

proposes that Wisconsin has met all of 

the infrastructure SIP requirements for 

PSD associated with section 110(a)(2)(J) 

for the 1997 PM2.5, 1997 ozone, 2006 

PM2.5, 2008 lead, 2008 ozone, 2010 NO2, 

2010 SO2, and 2012 PM2.5 NAAQS. 

III. What action is EPA taking? 

EPA is proposing to approve revisions 

to Wisconsin’s SIP that implement the 

PM2.5 increment requirements and also 

incorporates NOX as an ozone precursor. 

These revisions were made to meet 

EPA’s requirements for Wisconsin’s PSD 

and NSR program and are consistent 

with Federal regulations. Specifically, 

EPA is proposing to approve the 

following: 

(i) NR 404.05(2)(intro) and (am) 

(ii) NR 404.05(3)(intro) and (am) 

(iii) NR 404.05(4)(intro) and (am) 

(iv) NR 405.02(3) and (21)(a) 

(v) NR 405.02(21m)(a) and (c) 

(vi) NR 405.02(22)(b) 

(vii) NR 405.02(22m)(a)1. and 3., and 

(b)1. 

(viii) NR 405.02(27)(a)6. 

(ix) NR 405.07(8)(a)3m and 3m(Note) 

(x) NR 405.07(8)(a)5.(Note) 

The revisions pertaining to PM2.5

increment will fully address the 

requirements of the PM2.5 PSD 

Increments, SILs, and SMC Rule and the 

deficiencies identified in EPA’s August 

11, 2014, Finding of Failure to Submit. 

The revisions pertaining to NOX as a 

precursor to ozone will, in conjunction 

with EPA’s October 6, 2015 approval, 

address all of the PSD requirements of 

the ‘‘Final Rule to Implement the 8- 

Hour Ozone National Ambient Air 

Quality Standard—Phase 2’’. 

EPA is also proposing to approve the 

PSD related infrastructure requirements 

found in CAA sections 110(a)(2)(C), 

(D)(i)(II), and (J) for Wisconsin’s 1997 

PM2.5, 1997 ozone, 2006 PM2.5, 2008 

lead, 2008 ozone, 2010 NO2, 2010 SO2, 

and 2012 PM2.5 NAAQS submittals. 

IV. Incorporation by Reference 

In this rule, EPA is proposing to 

include in a final EPA rule regulatory 

text that includes incorporation by 

reference. In accordance with 

requirements of 1 CFR 51.5, EPA is 

proposing to incorporate by reference 

the WDNR rules regarding revisions to 

the PSD and NSR programs discussed in 

section I of this preamble. EPA has 

made, and will continue to make, these 

documents generally available through 

www.regulations.gov, and/or at the 

National Archives and Records 

Administration (NARA), and/or at the 

EPA Region 5 Office (please contact the 

person identified in the FOR FURTHER

INFORMATION CONTACT section of this 

preamble for more information). For 

information on the availability of this 

material at NARA, go to: 

www.archives.gov/federal-register/cfr/ 

ibr-locations.html. 

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 Orders 12866 (58 FR 51735, 

October 4, 1993) and 13563 (76 FR 3821, 

January 21, 2011); 

• 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 (Public Law 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, the SIP is not approved 

to apply on any Indian reservation land 

or in any other area where EPA or an 

Indian tribe has demonstrated that a 

tribe has jurisdiction. In those areas of 

Indian country, the rule does not have 

tribal implications and will not impose 

substantial direct costs on tribal 

governments or preempt tribal law as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Lead, Nitrogen dioxide, Ozone, 

Particulate matter, Reporting and 

recordkeeping requirements, Sulfur 

oxides. 

Dated: September 21, 2016. 

Robert A. Kaplan, 

Acting Regional Administrator, Region 5. 

[FR Doc. 2016–23689 Filed 9–29–16; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 435 

[EPA–HQ–OW–2016–0598; FRL–9953–25– 

OW] 

[RIN 2040–AF68] 

Effluent Limitations Guidelines and 

Standards for the Oil and Gas 

Extraction Point Source Category— 

Implementation Date Extension 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) proposes to extend the 

implementation deadline for certain 


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