[Federal Register Volume 80, Number 237 (Thursday, December 10, 2015)]
[Rules and Regulations]
[Pages 76637-76639]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-31062]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2009-0805; FRL-9939-77-Region 5]
Wisconsin; Disapproval of Infrastructure SIP With Respect to
Oxides of Nitrogen as a Precursor to Ozone Provisions for the 2006
PM2.5 NAAQS
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is narrowly
disapproving elements of a State Implementation Plan (SIP) submission
from Wisconsin regarding the infrastructure requirements of section 110
of the Clean Air Act (CAA) for the 2006 fine particulate matter
(PM2.5) National Ambient Air Quality Standard (NAAQS). The
infrastructure requirements are designed to ensure that the structural
components of each state's air quality management program are adequate
to meet the state's responsibilities under the CAA. This action
pertains specifically to certain infrastructure requirements that may
be satisfied if a state has a fully approved prevention of significant
deterioration (PSD) permitting program that incorporates all required
program requirements, including the requirement to correctly address
oxides of nitrogen (NOx) as a precursor to ozone.
DATES: This final rule is effective on January 11, 2016.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R05-OAR-2009-0805. All documents in the docket are listed on
the www.regulations.gov Web site. Although listed in the index, some
information is not publicly available, i.e., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the Internet and will be publicly available only in hard
copy form. Publicly available docket materials are available either
electronically through www.regulations.gov or in hard copy at the
Environmental Protection Agency, Region 5, Air and Radiation Division,
77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding
Federal holidays. We recommend that you telephone Sarah Arra,
Environmental Scientist, at (312) 886-9401 before visiting the Region 5
office.
FOR FURTHER INFORMATION CONTACT: Sarah Arra, Environmental Scientist,
Attainment Planning and Maintenance Section, Air Programs Branch (AR-
18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson
Boulevard, Chicago, Illinois 60604, (312) 886-9401, [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. This supplementary information
section is arranged as follows:
[[Page 76638]]
I. What is the background of this SIP submission?
II. What is our response to comments received on the proposed
rulemaking?
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews
I. What is the background of this SIP submission?
This rulemaking addresses a January 24, 2011, submission,
supplemented on June 29, 2012, from the Wisconsin Department of Natural
Resources (WDNR) intended to address all applicable infrastructure
requirements for the 2006 PM2.5 NAAQS.
The requirement for states to make a SIP submission of this type
arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1),
states must make SIP submissions ``within 3 years (or such shorter
period as the Administrator may prescribe) after the promulgation of a
national primary ambient air quality standard (or any revision
thereof),'' and these SIP submissions are to provide for the
``implementation, maintenance, and enforcement'' of such NAAQS. The
statute directly imposes on states the duty to make these SIP
submissions, and the requirement to make the submissions is not
conditioned upon EPA's taking any action other than promulgating a new
or revised NAAQS. Section 110(a)(2) includes a list of specific
elements that ``[e]ach such plan'' submission must address.
This specific rulemaking is only taking action on a the specific
infrastructure requirements of CAA sections 110(a)(2)(C), (D)(i)(II),
and (J), which may be satisfied if the state demonstrates that it has a
fully approved PSD permitting program that incorporates all federal
requirements, including, as relevant here, the requirement to properly
regulate NOx as a precursor to ozone. The majority of the
other infrastructure elements were approved in a rulemaking dated
October 29, 2012, (77 FR 65478), including approvals and a narrow
disapproval of the remaining PSD requirements in sections 110(a)(2)(C),
(D)(i)(II), and (J).
II. What is our response to comments received on the proposed
rulemaking?
The proposed rulemaking associated with this final action was
published on September 10, 2015 (80 FR 54468). During the comment
period, which ended on October 13, 2015, EPA received a comment from
the WDNR. A synopsis of the comment and EPA's response to the comment
are provided below.
Comment: WDNR disagrees with the proposed disapproval because the
program discussed in the disapproval is currently being implemented by
the state and the state is actively working to add the needed elements
to its rules. WDNR also comments that EPA previously issued the state a
finding of failure to submit for the missing PSD element and more
recently issued a disapproval of this element on the same basis in a
final action on a separate infrastructure SIP, and argues that a second
disapproval is unnecessary.
Response: EPA understands that WDNR is currently implementing the
requirement to regulate NOx as a precursor to ozone as part
of the state's PSD program, and that WDNR is currently working on
revisions to its SIP to incorporate this requirement. Because of this,
EPA did not originally take action on this aspect of the PSD program
during EPA's evaluation of and final action on WDNR's 2006
PM2.5 infrastructure SIP, which was published on October 29,
2012 (77 FR 65478). However, the CAA requires EPA to take action on
SIPs submitted by the state within 12 months of the submittal's
completion date. EPA has been sued for missing this deadline, and under
a consent decree, must finalize action on the state's SIP submission by
November 30, 2015. Each time a new or revised NAAQS is promulgated, the
statute requires both the state and EPA to reevaluate the adequacy of
the states' SIP to satisfy the applicable requirements of section
110(a)(2), including elements (C), (D)(i)(II), and (J). Therefore,
disapproval of these elements with respect to EPA's evaluation of the
state's 1997 ozone and PM2.5 infrastructure SIPs did not
remove the requirement for the EPA to evaluate these elements anew in
future infrastructure SIPs, such as this one. Because the state's PSD
program does not meet all program requirements, and therefore does not
fully satisfy the infrastructure requirements of CAA section
110(a)(2)(C), (D)(i)(II), and (J) with respect to the 2006
PM2.5 infrastructure SIP, EPA must narrowly disapprove the
state's SIP submission as to that deficiency here.
III. What action is EPA taking?
EPA is disapproving narrow portions of the 2006 PM2.5
infrastructure SIP submission from Wisconsin certifying that its
current SIP is sufficient to meet required infrastructure elements.
Specifically, EPA is narrowly disapproving the submission with respect
to the infrastructure elements under CAA sections 110(a)(2)(C),
(D)(i)(II), and (J) for the 2006 PM2.5 NAAQS because the
state's PSD program fails to properly regulate NOx as a
precursor to ozone. This action together with EPA's October 29, 2012,
final action partially approving and narrowly disapproving these
elements with respect to other PSD requirements, completes final action
on Wisconsin's 2006 PM2.5 infrastructure SIP with respect to
CAA section 110(a)(2)(C), (D)(i)(II), and (J).
IV. Statutory and Executive Order Reviews
Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and, therefore, is
not subject to review by the Office of Management and Budget.
Paperwork Reduction Act
This rule does not impose an information collection burden under
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.).
Regulatory Flexibility Act
This action merely disapproves state law as not meeting Federal
requirements and imposes no additional requirements beyond those
imposed by state law. Accordingly, the Administrator certifies that
this rule will not have a significant economic impact on a substantial
number of small entities under the Regulatory Flexibility Act (5 U.S.C.
601 et seq.).
Unfunded Mandates Reform Act
Because this rule disapproves pre-existing requirements under state
law and does not impose any additional enforceable duty beyond that
required by state law, it does not contain any unfunded mandate or
significantly or uniquely affect small governments, as described in the
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
Executive Order 13132: Federalism
This action also does not have Federalism implications because it
does not have substantial direct effects on the states, on the
relationship between the national government and the states, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132 (64 FR 43255, August
10, 1999). This action merely disapproves a state rule, and does not
alter the relationship or the distribution of power and
responsibilities established in the CAA.
[[Page 76639]]
Executive Order 13175: Consultation and Coordination With Indian Tribal
Governments
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have tribal implications and will not impose
substantial direct costs on tribal governments or preempt tribal law as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Executive Order 13045: Protection of Children From Environmental Health
and Safety Risks
This rule also is not subject to Executive Order 13045 ``Protection
of Children from Environmental Health Risks and Safety Risks'' (62 FR
19885, April 23, 1997), because it disapproves a state rule.
Executive Order 13211: Actions That Significantly Affect Energy Supply,
Distribution, or Use
Because it is not a ``significant regulatory action'' under
Executive Order 12866 or a ``significant energy action,'' this action
is also not subject to Executive Order 13211, ``Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution, or
Use'' (66 FR 28355, May 22, 2001).
National Technology Transfer Advancement Act
In reviewing state submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the CAA. In this
context, in the absence of a prior existing requirement for the state
to use voluntary consensus standards (VCS), EPA has no authority to
disapprove a state submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a state
submission, to use VCS in place of a state submission that otherwise
satisfies the provisions of the CAA. Thus, the requirements of section
12(d) of the National Technology Transfer and Advancement Act of 1995
(15 U.S.C. 272 note) do not apply.
Executive Order 12898: Federal Actions To Address Environmental Justice
in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA lacks the discretionary authority to address environmental
justice in this action. In reviewing SIP submissions, EPA's role is to
approve or disapprove state choices, based on the criteria of the CAA.
Accordingly, this action merely disapproves certain state requirements
for inclusion into the SIP under section 110 and subchapter I, part D
of the CAA and will not in-and-of itself create any new requirements.
Accordingly, it does not provide EPA with the discretionary authority
to address, as appropriate, disproportionate human health or
environmental effects, using practicable and legally permissible
methods, under Executive Order 12898.
Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by February 8, 2016. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review nor does
it extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Particulate matter, Reporting
and recordkeeping requirements.
Dated: November 23, 2015.
Susan Hedman,
Regional Administrator, Region 5.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
0
2. Section 52.2591 is amended by revising paragraph (c) to read as
follows:
Sec. 52.2591 Section 110(a)(2) infrastructure requirements.
* * * * *
(c) Approval and Disapproval--In a January 24, 2011, submittal,
supplemented on March 28, 2011, and June 29, 2012, Wisconsin certified
that the State has satisfied the infrastructure SIP requirements of
section 110(a)(2)(A) through (H), and (J) through (M) for the 2006 24-
hour PM2.5 NAAQS. EPA is approving Wisconsin's submission
addressing the infrastructure SIP requirements of section 110(a)(2)(A),
(B), (C) with respect to enforcement and the GHG permitting threshold
PSD requirement, (D)(i)(II) with respect to the GHG permitting
threshold PSD requirement and visibility protection, (D)(ii), (E)
except for state board requirements, (F) through (H), (J) except for
narrow prevention of significant deterioration requirements, and (K)
through (M). We are not finalizing action on (D)(i)(I) and the state
board requirements of (E)(ii). We will address these requirements in a
separate action. We are disapproving narrow portions of Wisconsin's
infrastructure SIP submission addressing the relevant prevention of
significant deterioration requirements of the 2008 NSR Rule
(identifying PM2.5 precursors and the regulation of
PM2.5 and PM10 condensables in permits) and the
requirement of NOX as a precursor to ozone with respect to
section 110(a)(2)(C), (D)(i)(II), and (J).
* * * * *
[FR Doc. 2015-31062 Filed 12-9-15; 8:45 am]
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