81_FR_67451 81 FR 67261 - Air Plan Approval; Wisconsin; NOX

81 FR 67261 - Air Plan Approval; Wisconsin; NOX

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 81, Issue 190 (September 30, 2016)

Page Range67261-67266
FR Document2016-23689

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 (PM<INF>2.5</INF>) 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 PM<INF>2.5</INF>, 1997 ozone, 2006 PM<INF>2.5</INF>, 2008 lead, 2008 ozone, 2010 nitrogen dioxide (NO<INF>2</INF>), 2010 sulfur dioxide (SO<INF>2</INF>), and 2012 PM<INF>2.5</INF> 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.

Federal Register, Volume 81 Issue 190 (Friday, September 30, 2016)
[Federal Register Volume 81, Number 190 (Friday, September 30, 2016)]
[Proposed Rules]
[Pages 67261-67266]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-23689]


=======================================================================
-----------------------------------------------------------------------

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 
[email protected]. 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.

[[Page 67262]]

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, [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:

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 ([mu]g/m\3\) 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 [mu]g/m\3\, 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.

[[Page 67263]]

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 [mu]g/m\3\ determined on an annual arithmetic mean, and a 
24-hr maximum of 2 [mu]g/m\3\. For class II areas the maximum allowable 
increase is 4 [mu]g/m\3\ determined on an annual arithmetic mean, and a 
24-hr maximum of 9 [mu]g/m\3\. For class III areas the maximum 
allowable increase is 8 [mu]g/m\3\ determined on an annual arithmetic 
mean, and a 24-hr maximum of 18 [mu]g/m\3\. 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 [mu]g/m\3\ 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;

[[Page 67264]]

and, (v) Greenhouse Gas (GHG) permitting and the ``Tailoring Rule.'' 
\2\
---------------------------------------------------------------------------

    \1\ PM10 refers to particles with diameters less than 
10 microns, oftentimes referred to as ``coarse'' particles.
    \2\ EPA 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).
---------------------------------------------------------------------------

(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\
---------------------------------------------------------------------------

    \3\ EPA 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.
---------------------------------------------------------------------------

    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    24-hour
                                                    mean         max
------------------------------------------------------------------------
Class I.......................................            1            2
Class II......................................            4            9
Class III.....................................            8           18
------------------------------------------------------------------------


[[Page 67265]]

    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 previously-
approved 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

[[Page 67266]]

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



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

                                                         • Confidential Submissions—To                        the animal food additive regulations for              ENVIRONMENTAL PROTECTION
                                                      submit a comment with confidential                      formic acid (§ 573.480) and ammonium                  AGENCY
                                                      information that you do not wish to be                  formate (§ 573.170) to limit formic acid
                                                      made publicly available, submit your                    and formate salts from all added sources              40 CFR Part 52
                                                      comment only as a written/paper                         to 1.2 percent of complete feed when                  [EPA–R05–OAR–2016–0134; FRL–9953–51–
                                                      submission. You should submit two                       multiple sources of formic acid and its               Region 5]
                                                      copies total. One copy will include the                 salts are used in combination. This
                                                      information you claim to be confidential                element of the petition was not                       Air Plan Approval; Wisconsin; NOX as
                                                      with a heading or cover note that states                described in the July 25, 2014, notice of             a Precursor to Ozone, PM2.5 Increment
                                                      ‘‘THIS DOCUMENT CONTAINS                                petition (79 FR 43325).                               Rules and PSD Infrastructure SIP
                                                      CONFIDENTIAL INFORMATION.’’ The                                                                               Requirements
                                                      Agency will review this copy, including                    Elsewhere in this issue of the Federal
                                                                                                              Register, FDA is publishing a regulation              AGENCY:  Environmental Protection
                                                      the claimed confidential information, in
                                                                                                              providing for the safe use of feed grade              Agency (EPA).
                                                      its consideration of comments. The
                                                                                                              sodium formate as a feed acidifying                   ACTION: Proposed rule.
                                                      second copy, which will have the
                                                      claimed confidential information                        agent in complete swine feeds.                        SUMMARY:    The Environmental Protection
                                                      redacted/blacked out, will be available                    The potential environmental impact                 Agency (EPA) is proposing approval of
                                                      for public viewing and posted on http://                of this action is being reviewed. The                 a revision to Wisconsin’s state
                                                      www.regulations.gov. Submit both                        Agency will prepare a claim of                        implementation plan (SIP), revising
                                                      copies to the Division of Dockets                       categorical exclusion or an                           portions of the State’s Prevention of
                                                      Management. If you do not wish your                     environmental assessment to evaluate                  Significant Deterioration (PSD) and
                                                      name and contact information to be                      the potential environmental impacts of                ambient air quality programs to address
                                                      made publicly available, you can                        these actions. Interested persons may                 deficiencies identified in EPA’s
                                                      provide this information on the cover                   submit to the Division of Dockets                     previous narrow infrastructure SIP
                                                      sheet and not in the body of your                                                                             disapprovals and Finding of Failure to
                                                                                                              Management (see ADDRESSES) either
                                                      comments and you must identify this                                                                           Submit. This SIP revision request is
                                                                                                              electronic or written comments
                                                      information as ‘‘confidential.’’ Any                                                                          consistent with the Federal PSD rules
                                                      information marked as ‘‘confidential’’                  regarding this document. It is only
                                                                                                                                                                    and addresses the required elements of
                                                      will not be disclosed except in                         necessary to send one set of comments.
                                                                                                                                                                    the fine particulate matter (PM2.5) PSD
                                                      accordance with 21 CFR 10.20 and other                  Identify comments with the docket                     Increments, Significant Impact Levels
                                                      applicable disclosure law. For more                     number found in brackets in the                       (SILs) and Significant Monitoring
                                                      information about FDA’s posting of                      heading of this document. Received                    Concentration (SMC) Rule. EPA is also
                                                      comments to public dockets, see 80 FR                   comments may be seen in the Division                  proposing to approve elements of SIP
                                                      56469, September 18, 2015, or access                    of Dockets Management between 9 a.m.                  submissions from Wisconsin regarding
                                                      the information at: http://www.fda.gov/                 and 4 p.m., Monday through Friday.                    PSD infrastructure requirements of
                                                      regulatoryinformation/dockets/                          FDA will also place on public display                 section 110 of the Clean Air Act (CAA)
                                                      default.htm.                                            any comments on potential                             for the 1997 PM2.5, 1997 ozone, 2006
                                                         Docket: For access to the docket to                  environmental impact without further                  PM2.5, 2008 lead, 2008 ozone, 2010
                                                      read background documents or the                        announcement in the Federal Register.                 nitrogen dioxide (NO2), 2010 sulfur
                                                      electronic and written/paper comments                   If FDA determines a categorical                       dioxide (SO2), and 2012 PM2.5 National
                                                      received, go to http://                                 exclusion applies, neither an                         Ambient Air Quality Standards
                                                      www.regulations.gov and insert the                      environmental assessment nor an                       (NAAQS). The infrastructure
                                                      docket number, found in brackets in the                 environmental impact statement is                     requirements are designed to ensure that
                                                      heading of this document, into the                      required. If FDA determines a                         the structural components of each
                                                      ‘‘Search’’ box and follow the prompts                   categorical exclusion does not apply,                 state’s air quality management program
                                                      and/or go to the Division of Dockets                    FDA will prepare an environmental                     are adequate to meet the state’s
                                                      Management, 5630 Fishers Lane, Rm.                      assessment and place it on public                     responsibilities under the CAA.
                                                      1061, Rockville, MD 20852.                              display at the Division of Dockets                    DATES: Comments must be received on
                                                      FOR FURTHER INFORMATION CONTACT:                        Management (see DATES and ADDRESSES)                  or before October 31, 2016.
                                                      Chelsea Trull, Center for Veterinary                    for public review and comment.                        ADDRESSES: Submit your comments,
                                                      Medicine, Food and Drug                                                                                       identified by Docket ID No. EPA–R05–
                                                      Administration, 7519 Standish Pl.,                        Dated: September 26, 2016.                          OAR–2016–0134 at http://
                                                      Rockville, MD 20855, 240–402–6729,                      Tracey H. Forfa,                                      www.regulations.gov, or via email to
                                                      chelsea.trull@fda.hhs.gov.                              Deputy Director, Center for Veterinary                damico.genevieve@epa.gov. For
                                                      SUPPLEMENTARY INFORMATION: Under the                    Medicine.                                             comments submitted at Regulations.gov,
                                                      Federal Food, Drug, and Cosmetic Act                    [FR Doc. 2016–23645 Filed 9–29–16; 8:45 am]           follow the online instructions for
                                                      (section 409(b)(5) (21 U.S.C. 348(b)(5)),               BILLING CODE 4164–01–P                                submitting comments. Once submitted,
                                                      notice is given that the food additive                                                                        comments cannot be edited or removed
                                                      petition (FAP 2286) filed by BASF                                                                             from Regulations.gov. For either manner
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      Corp., 100 Park Ave., Florham Park, NJ                                                                        of submission, EPA may publish any
                                                      07932 proposing to amend Title 21 of                                                                          comment received to its public docket.
                                                      the Code of Federal Regulations (CFR)                                                                         Do not submit electronically any
                                                      in part 573 Food Additives Permitted in                                                                       information you consider to be
                                                      Feed and Drinking Water of Animals (21                                                                        Confidential Business Information (CBI)
                                                      CFR part 573) to provide for the safe use                                                                     or other information whose disclosure is
                                                      of feed grade sodium formate as a feed                                                                        restricted by statute. Multimedia
                                                      acidifying agent in complete swine                                                                            submissions (audio, video, etc.) must be
                                                      feeds, also proposed that FDA amend                                                                           accompanied by a written comment.


                                                 VerDate Sep<11>2014   18:55 Sep 29, 2016   Jkt 238001   PO 00000   Frm 00045   Fmt 4702   Sfmt 4702   E:\FR\FM\30SEP1.SGM   30SEP1


                                                      67262                 Federal Register / Vol. 81, No. 190 / Friday, September 30, 2016 / Proposed Rules

                                                      The written comment is considered the                   405.07(8)(a)3m (Note); and (14) amend                 PSD Increments, SILs and SMC Rule
                                                      official comment and should include                     NR 405.07(8)(a)5. (Note).                             PM2.5 addressing the SILs for PM2.5 so
                                                      discussion of all points you wish to                       WDNR also requested that this SIP                  that EPA could voluntarily correct an
                                                      make. EPA will generally not consider                   revision supplement the PSD portions of               error in these provisions. The Court also
                                                      comments or comment contents located                    its previously submitted infrastructure               vacated parts of the PM2.5 PSD
                                                      outside of the primary submission (i.e.                 submittals, including 1997 PM2.5, 1997                Increments, SILs and SMC Rule
                                                      on the web, cloud, or other file sharing                ozone, 2006 PM2.5, 2008 lead, 2008                    establishing a PM2.5 SMC, finding that
                                                      system). For additional submission                      ozone, 2010 NO2, SO2, and 2012 PM2.5.                 EPA was precluded from using the
                                                      methods, please contact the person                                                                            PM2.5 SMCs to exempt permit applicants
                                                                                                              A. PSD Rule Revisions
                                                      identified in the FOR FURTHER                                                                                 from the statutory requirement to
                                                      INFORMATION CONTACT section. For the                    1. PM2.5 Increments                                   compile preconstruction monitoring
                                                      full EPA public comment policy,                            To implement the PM2.5 NAAQS, EPA                  data. Sierra Club v. EPA, 705 F.3d 458,
                                                      information about CBI or multimedia                     issued two separate final rules that                  463–69. On December 9, 2013, EPA
                                                      submissions, and general guidance on                    establish the New Source Review (NSR)                 issued a good cause final rule formally
                                                      making effective comments, please visit                 permitting requirements for PM2.5: The                removing the affected SILs and
                                                      http://www2.epa.gov/dockets/                            NSR PM2.5 Implementation Rule                         replacing the SMC with a numeric value
                                                      commenting-epa-dockets.                                                                                       of 0 micrograms per cubic meter (mg/m3)
                                                                                                              promulgated on May 16, 2008 (73 FR
                                                      FOR FURTHER INFORMATION CONTACT:                                                                              and a note that no exemption is
                                                                                                              28321), and the PM2.5 PSD Increments,
                                                      Andrea Morgan, Environmental                                                                                  available with regard to PM2.5. See 78
                                                                                                              SILs and SMC Rule promulgated on
                                                      Engineer, Air Permitting Section, Air                                                                         FR 73698. As a result, SIP submittals
                                                                                                              October 20, 2010 (75 FR 64864). EPA’s
                                                      Programs Branch (AR–18J),                                                                                     could no longer include the vacated
                                                                                                              2008 NSR PM2.5 Implementation Rule
                                                      Environmental Protection Agency,                                                                              PM2.5 SILs at 40 CFR 51.166(k)(2) and
                                                                                                              required states to submit applicable SIP
                                                      Region 5, 77 West Jackson Boulevard,                                                                          52.21(k)(2) and the PM2.5 SMC must be
                                                                                                              revisions to EPA no later than May 16,
                                                      Chicago, Illinois 60604, (312) 353–6058,                                                                      revised to 0 mg/m3, consistent with 40
                                                                                                              2011, to address this rule’s PSD and
                                                      morgan.andrea@epa.gov.                                                                                        CFR 51.166(i)(5)(i)(c) and
                                                                                                              nonattainment NSR SIP requirements.
                                                      SUPPLEMENTARY INFORMATION:                                                                                    52.21(i)(5)(i)(c).
                                                                                                              This rule requires that the state submit
                                                      Throughout this document whenever                       revisions to its SIP, including the                   2. Ozone
                                                      ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean             identification of precursors for PM2.5,
                                                      EPA. This supplementary information                                                                              On November 29, 2005, EPA
                                                                                                              the significant emissions rates for PM2.5             published (70 FR 71612) in the Federal
                                                      section is arranged as follows:                         and the requirement to include                        Register the ‘‘Final Rule to Implement
                                                      I. What is the background of these SIP                  emissions which may condense to form                  the 8-Hour Ozone National Ambient Air
                                                           submissions?                                       particulate matter at ambient                         Quality Standard—Phase 2’’. Part of this
                                                      II. What is EPA’s review of these SIP                   temperatures, known as condensables,
                                                           submissions?                                                                                             rule established, among other
                                                                                                              in permitting decisions. EPA published                requirements, oxides of nitrogen (NOX)
                                                      III. What action is EPA taking?
                                                      IV. Incorporation by Reference                          a final approval of a revision to                     as a precursor to ozone. The final rule
                                                      V. Statutory and Executive Order Reviews                Wisconsin’s SIP on October 16, 2014,                  became effective on January 30, 2006.
                                                                                                              (79 FR 62008), which included all of the                 On October 6, 2015, EPA finalized
                                                      I. What is the background of these SIP                  required elements of the 2008 NSR                     approval of revisions to Wisconsin’s SIP
                                                      submissions?                                            Implementation Rule.                                  that included the identification of NOX
                                                         On August 8, 2016, the Wisconsin                        The PM2.5 PSD Increments, SILs and                 as a precursor to ozone in the definition
                                                      Department of Natural Resources                         SMC Rule required states to submit SIP                of regulated NSR pollutant. See 79 FR
                                                      (WDNR) submitted a SIP revision                         revisions to EPA by July 20, 2012,                    60064.
                                                      request to EPA to revise portions of its                adopting provisions equivalent to or at
                                                      PSD and ambient air quality programs to                 least as stringent as the PM2.5 PSD                   B. Infrastructure SIP Submittals
                                                      address deficiencies identified in EPA’s                increments and associated                               The requirement for states to make a
                                                      previous narrow infrastructure SIP                      implementing regulations. On August                   SIP submission of this type arises out of
                                                      disapprovals and Finding of Failure to                  11, 2014, EPA published a finding that                CAA section 110(a)(1). Pursuant to
                                                      Submit (FFS). Final approval of this SIP                Wisconsin had failed to submit the                    section 110(a)(1), states must make SIP
                                                      revision request will be consistent with                required elements of the PM2.5 PSD                    submissions ‘‘within 3 years (or such
                                                      the Federal PSD requirements and will                   Increments, SILs and SMC Rule (79 FR                  shorter period as the Administrator may
                                                      address the required elements of the                    46703).                                               prescribe) after the promulgation of a
                                                      PM2.5 PSD Increments, SILs and SMC                         The PM2.5 PSD Increments, SILs and                 national primary ambient air quality
                                                      Rule. Wisconsin submitted revisions to                  SMC Rule also allows states to                        standard (or any revision thereof),’’ and
                                                      its rules NR 404 and 405 of the                         discretionarily adopt and submit for                  these SIP submissions are to provide for
                                                      Wisconsin Administrative Code. The                      EPA approval: (1) SILs, which are used                the ‘‘implementation, maintenance, and
                                                      submittal requests that EPA approve the                 as a screening tool to evaluate the                   enforcement’’ of such NAAQS. The
                                                      following revisions to Wisconsin’s SIP:                 impact a proposed new major source or                 statute directly imposes on states the
                                                      (1) Amend NR 404.05 (2) (intro); (2)                    major modification may have on the                    duty to make these SIP submissions,
                                                      create NR 404.05(2) (am); (3) amend NR                  NAAQS or PSD increment; and (2) a                     and the requirement to make the
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      404.05(3) (intro); (4) create NR 404.05(3)              SMC (also a screening tool), which is                 submissions is not conditioned upon
                                                      (am); (5) amend NR 404.05(4) (intro); (6)               used to determine the subsequent level                EPA’s taking any action other than
                                                      create NR 404.05(4) (am); (7) amend NR                  of data gathering required for a PSD                  promulgating a new or revised NAAQS.
                                                      405.02(3), (21)(a), and (21m)(a); (8)                   permit application for emissions of                   Section 110(a)(2) includes a list of
                                                      create NR 405.02(21m)(c); (9) amend NR                  PM2.5. However, on January 22, 2013,                  specific elements that ‘‘[e]ach such
                                                      405.02(22)(b) and (22m)(a)1. and (b)1.;                 the United States Court of Appeals for                plan’’ submission must address.
                                                      (10) create NR 405.02(22m)(a)3.; (11)                   the District of Columbia (Court) granted                This specific rulemaking is only
                                                      amend NR 405.02(27)(a)6.; (12) amend                    a request from EPA to vacate and                      taking action on the PSD elements of the
                                                      NR 405.07(8)(a)3m; (13) create NR                       remand to EPA the portions of the PM2.5               Wisconsin infrastructure submittals.


                                                 VerDate Sep<11>2014   18:55 Sep 29, 2016   Jkt 238001   PO 00000   Frm 00046   Fmt 4702   Sfmt 4702   E:\FR\FM\30SEP1.SGM   30SEP1


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

                                                      Separate action has been or will be                     regulations, their revisions are found to             emission increase at major stationary
                                                      taken on the non-PSD infrastructure                     be consistent with the Federal                        source that is significant for NOX or
                                                      elements in separate rulemakings. The                   regulations.                                          volatile organic compounds (VOCs)
                                                      infrastructure elements for PSD are                        States were also required to adopt and             shall be considered significant for
                                                      found in CAA 110(a)(2)(C), 110(a)(2)(D),                submit for EPA approval revisions to the              ozone. This is consistent with the
                                                      and 110(a)(2)(J) and will be discussed in               definitions for ‘‘major source baseline               Federal requirements of 40 CFR
                                                      detail below. For further discussion on                 date,’’ ‘‘minor source baseline date,’’               51.166(b)(2)(ii). Wisconsin’s revisions to
                                                      the background of infrastructure                        and ‘‘baseline area’’ as part of the                  the definition of ‘‘Major Stationary
                                                      submittals, see 77 FR 45992.                            implementing regulations for the PM2.5                Source’’ at NR 405.02(22)(b) add that a
                                                                                                              increments. Wisconsin’s revisions to the              major stationary source that is major for
                                                      II. What is EPA’s review of these SIP                   definition of ‘‘major source baseline
                                                      submissions?                                                                                                  NOX shall be considered major for
                                                                                                              date,’’ at NR 405.02(21m)(a) and (c),                 ozone. This is consistent with the
                                                      A. PSD Rule Revisions                                   clarifies that the baseline date for                  Federal definition at 40 CFR
                                                                                                              particulate matter less than 10                       51.166(b)(1). Wisconsin’s revisions to
                                                         EPA has evaluated WDNR’s proposed                    micrometers (PM10) is January 6, 1975,
                                                      revision to the Wisconsin SIP in                                                                              NR 405.07(8)(a)5.(note) revise the SMC
                                                                                                              and adds October 20, 2010, as the major               for ozone to provide that sources with
                                                      accordance with the Federal                             source baseline date for PM2.5. This is
                                                      requirements governing state permitting                                                                       a net increase of 100 tons per year of
                                                                                                              consistent with the Federal definition at             NOX need to perform an ambient impact
                                                      programs. The revisions described in                    40 CFR 51.166(b)(14)(i). Wisconsin’s
                                                      section I above are intended to update                                                                        analysis for ozone. This matches the
                                                                                                              revisions to the definition of ‘‘minor                note at 40 CFR 51.166(i)(5)(i)(f).1 The
                                                      the Wisconsin SIP to comply with the                    source baseline date’’ at NR
                                                      current rules and address deficiencies                                                                        revisions to the definition of
                                                                                                              405.02(22m)(a)1. and 3., clarify that the
                                                      identified by EPA in its previous SIP                                                                         ‘‘Significant’’ at NR 405.02(27)(a)6. adds
                                                                                                              trigger date for PM10 is January 6, 1975,
                                                      disapprovals. As discussed below, EPA                                                                         a significant emission rate for ozone of
                                                                                                              and establish October 20, 2011, as the
                                                      is proposing to approve these revisions                                                                       40 tons per year of nitrogen oxides. This
                                                                                                              trigger date for PM2.5. The revisions to
                                                      because they meet Federal                               NR 405.02(22m)(b)(1) revise the                       is consistent with the Federal
                                                      requirements.                                           definition of baseline date to update                 requirements of 40 CFR 51.166(b)(23)(i).
                                                      1. PM2.5                                                references to the U.S. Code of Federal                   Because Wisconsin’s requested
                                                                                                              Regulations. These revisions are                      revisions are consistent with the
                                                         The PM2.5 PSD Increments, SILs and                   consistent with the definition of ‘‘minor             applicable requirements found in
                                                      SMC Rule finalized several new                          source baseline date’’ at 40 CFR                      Federal regulations, EPA is proposing to
                                                      requirements for states to revise their                 51.166(b)(14)(ii). The State revised the              approve the requested revisions.
                                                      SIPs to incorporate increments for                      definition of ‘‘Baseline area’’ at NR
                                                      PM2.5. Specifically, the rule requires a                405.02(3) to explicitly identify pollutant            B. Infrastructure SIP Submittals
                                                      state’s submitted PSD SIP revision to                   air quality impacts that would define a
                                                      adopt and submit for EPA approval the                                                                           PSD infrastructure elements are
                                                                                                              baseline area where a minor source                    addressed in different sections of the
                                                      PM2.5 increments issued pursuant to                     baseline date is already established.
                                                      section 166(a) of the CAA to prevent                                                                          CAA: Sections 110(a)(2)(C),
                                                                                                              This revision is consistent with 40 CFR               110(a)(2)(D)(i)(II), and 110(a)(2)(J).
                                                      significant deterioration of air quality in             51.166(b)(14)(ii)(c).
                                                      areas meeting the NAAQS. States were                       Wisconsin also revised provisions                  1. Section 110(a)(2)(C)—Program for
                                                      also required to adopt and submit for                   pertaining to the PM2.5 SMC to be                     Enforcement of Control Measures; PSD
                                                      EPA approval revisions to the                           consistent with Federal requirements
                                                      definitions for ‘‘major source baseline                 after the January 22, 2013, Court                        States are required to include a
                                                      date,’’ ‘‘minor source baseline date,’’                 decision. WDNR’s revision to NR                       program providing for enforcement of
                                                      and ‘‘baseline area’’ as part of the                    405.07(8)(a)3m. revises the PM2.5 SMC                 all SIP measures and the regulation of
                                                      implementing regulations for the PM2.5                  to 0 mg/m3 and NR                                     construction of new or modified
                                                      increments. The PM2.5 increments are                    405.07(8)(a)3m.(Note) adds a note that                stationary sources to meet NSR
                                                      codified in 40 CFR 51.166(c)(1) and 40                  no exemption is available with regard to              requirements under PSD and
                                                      CFR 52.21(c)(1). For class I areas the                  PM2.5. These revisions are consistent                 nonattainment new source review
                                                      maximum allowable increase is codified                  with the language in 40 CFR                           (NNSR) programs. Part C of the CAA
                                                      as 1 mg/m3 determined on an annual                      51.166(i)(5)(i)(c) regarding the SMC for              (sections 160–169B) addresses PSD,
                                                      arithmetic mean, and a 24-hr maximum                    PM2.5.                                                while part D of the CAA (sections 171–
                                                      of 2 mg/m3. For class II areas the                                                                            193) addresses NNSR requirements.
                                                      maximum allowable increase is 4 mg/m3                   2. Ozone
                                                                                                                                                                       The evaluation of each state’s
                                                      determined on an annual arithmetic                         The ‘‘Final Rule to Implement the                  submission addressing the
                                                      mean, and a 24-hr maximum of 9 mg/m3.                   8-Hour Ozone National Ambient Air                     infrastructure SIP requirements of
                                                      For class III areas the maximum                         Quality Standard—Phase 2’’ required                   section 110(a)(2)(C) covers: (i)
                                                      allowable increase is 8 mg/m3                           states to make revisions to their PSD                 Enforcement of SIP measures; (ii) PSD
                                                      determined on an annual arithmetic                      programs to establish NOX as a                        provisions that explicitly identify NOX
                                                      mean, and a 24-hr maximum of                            precursor to ozone. Specifically, NOX
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                                                                                                                                    as a precursor to ozone in the PSD
                                                      18 mg/m3. Wisconsin incorporated these                  was required to be identified as a                    program; (iii) identification of
                                                      maximum allowable increases for PM2.5                   precursor to ozone in the definition of               precursors to PM2.5 and the
                                                      into their rules at NR 404.05(2) (intro)                major stationary source, the definition               identification of PM2.5 and PM10 1
                                                      and (am); NR 404.05(3) (intro) and (am);                of major modification, the definition of              condensables in the PSD program; (iv)
                                                      and NR 404.05(4) (intro) and (am) for                   significant, the definition of regulated              PM2.5 increments in the PSD program;
                                                      the class I, class II, and class III                    NSR pollutant, and the SMC for ozone.
                                                      increments, respectively. As Wisconsin                     Wisconsin’s revisions to the                         1 PM
                                                                                                                                                                           10 refers to particles with diameters less than
                                                      has utilized the same maximum                           definition of ‘‘major modification’’ in               10 microns, oftentimes referred to as ‘‘coarse’’
                                                      allowable increases as the Federal                      NR 405.02(21)(a) states that any net                  particles.



                                                 VerDate Sep<11>2014   18:55 Sep 29, 2016   Jkt 238001   PO 00000   Frm 00047   Fmt 4702   Sfmt 4702   E:\FR\FM\30SEP1.SGM   30SEP1


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

                                                      and, (v) Greenhouse Gas (GHG)                           address pollutants responsible for the                       The 2008 NSR Rule did not require
                                                      permitting and the ‘‘Tailoring Rule.’’ 2                secondary formation of PM2.5, otherwise                   states to immediately account for gases
                                                                                                              known as precursors. In the 2008 rule,                    that could condense to form particulate
                                                      (i) Enforcement of SIP Measures
                                                                                                              EPA identified precursors to PM2.5 for                    matter, known as condensables, in PM2.5
                                                         The enforcement of SIP measures                      the PSD program to be SO2 and NOX                         and PM10 emission limits in NSR
                                                      provision was approved in previous                      (unless the state demonstrates to the                     permits. Instead, EPA determined that
                                                      rulemakings.                                            Administrator’s satisfaction or EPA                       states had to account for PM2.5 and PM10
                                                      (ii) PSD Provisions That Explicitly                     demonstrates that NOX emissions in an                     condensables for applicability
                                                      Identify NOX as a Precursor to Ozone in                 area are not a significant contributor to                 determinations and in establishing
                                                      the PSD Program                                         that area’s ambient PM2.5                                 emissions limitations for PM2.5 and
                                                                                                              concentrations). The 2008 NSR Rule                        PM10 in PSD permits beginning on or
                                                         EPA’s ‘‘Final Rule to Implement the 8-               also specifies that VOCs are not                          after January 1, 2011. This requirement
                                                      Hour Ozone National Ambient Air                         considered to be precursors to PM2.5 in                   is codified in 40 CFR 51.166(b)(49)(i)(a)
                                                      Quality Standard—Phase 2; Final Rule                    the PSD program unless the state                          and 40 CFR 52.21(b)(50)(i)(a). Revisions
                                                      to Implement Certain Aspects of the                     demonstrates to the Administrator’s                       to states’ PSD programs incorporating
                                                      1990 Amendments Relating to New                         satisfaction or EPA demonstrates that                     the inclusion of condensables were
                                                      Source Review and Prevention of                         emissions of VOCs in an area are                          required be submitted to EPA by May
                                                      Significant Deterioration as They Apply                 significant contributors to that area’s                   16, 2011 (see 73 FR 28321 at 28341).
                                                      in Carbon Monoxide, Particulate Matter,                 ambient PM2.5 concentrations.
                                                      and Ozone NAAQS; Final Rule for                           The explicit references to SO2, NOX,                       EPA approved revisions to
                                                      Reformulated Gasoline’’ (Phase 2 Rule)                  and VOCs as they pertain to secondary                     Wisconsin’s PSD SIP reflecting these
                                                      was published on November 29, 2005                      PM2.5 formation are codified at 40 CFR                    requirements on October 16, 2014 (see
                                                      (see 70 FR 71612). Among other                          51.166(b)(49)(i)(b) and 40 CFR                            79 FR 62008), and therefore proposes
                                                      requirements, the Phase 2 Rule                          52.21(b)(50)(i)(b). As part of identifying                that Wisconsin has met this set of
                                                      obligated states to revise their PSD                    pollutants that are precursors to PM2.5,                  infrastructure SIP requirements of
                                                      programs to explicitly identify NOX as                  the 2008 NSR Rule also required states                    section 110(a)(2)(C) with respect to the
                                                      a precursor to ozone (70 FR 71612 at                    to revise the definition of ‘‘significant’’               1997 PM2.5, 1997 ozone, 2006 PM2.5,
                                                      71679, 71699–71700). This requirement                   as it relates to a net emissions increase                 2008 lead, 2008 ozone, 2010 NO2, 2010
                                                      was codified in 40 CFR 51.166.                          or the potential of a source to emit                      SO2, and 2012 PM2.5 NAAQS.
                                                         The Phase 2 Rule required that states                pollutants. Specifically, 40 CFR                          (iv) PM2.5 Increments in the PSD
                                                      submit SIP revisions incorporating the                  51.166(b)(23)(i) and 40 CFR                               Program
                                                      requirements of the rule, including                     52.21(b)(23)(i) define ‘‘significant’’ for
                                                      those identifying NOX as a precursor to                 PM2.5 to mean the following emissions                        On October 20, 2010, EPA issued the
                                                      ozone, by June 15, 2007 (see 70 FR                      rates: 10 Tons per year (tpy) of direct                   final rule on the ‘‘Prevention of
                                                      71612 at 71683, November 29, 2005).                     PM2.5; 40 tpy of SO2; and 40 tpy of NOX                   Significant Deterioration for Particulate
                                                         EPA is proposing to approve revisions                (unless the state demonstrates to the                     Matter Less Than 2.5 Micrometers—
                                                      to Wisconsin’s PSD SIP reflecting these                 Administrator’s satisfaction or EPA                       Increments, Significant Impact Levels
                                                      requirements in today’s rulemaking, and                 demonstrates that NOX emissions in an                     and Significant Monitoring
                                                      therefore is proposing to find that                     area are not a significant contributor to                 Concentration’’ (2010 NSR Rule). This
                                                      Wisconsin has met this set of                           that area’s ambient PM2.5                                 rule established several components for
                                                      infrastructure SIP requirements of                      concentrations). The deadline for states                  making PSD permitting determinations
                                                      section 110(a)(2)(C) with respect to the                to submit SIP revisions to their PSD                      for PM2.5, including a system of
                                                      1997 PM2.5, 1997 ozone, 2006 PM2.5,                     programs incorporating these changes                      ‘‘increments,’’ which is the mechanism
                                                      2008 lead, 2008 ozone, 2010 NO2, 2010                   was May 16, 2011 (see 73 FR 28321 at                      used to estimate significant
                                                      SO2, and 2012 PM2.5 NAAQS.                              28341).3                                                  deterioration of ambient air quality for
                                                      (iii) Identification of Precursors to PM2.5                                                                       a pollutant. These increments are
                                                      and the Identification of PM2.5 and PM10                   3 EPA notes that on January 4, 2013, the U.S.
                                                                                                                                                                        codified in 40 CFR 51.166(c) and 40
                                                                                                              Court of Appeals for the D.C. Circuit, in Natural         CFR 52.21(c), and are included in the
                                                      Condensables in the PSD Program                         Resources Defense Council v. EPA, 706 F.3d 428
                                                                                                              (D.C. Cir.), held that EPA should have issued the         table below.
                                                         On May 16, 2008 (see 73 FR 28321),
                                                                                                              2008 NSR Rule in accordance with the CAA’s
                                                      EPA issued the Final Rule on the
                                                      ‘‘Implementation of the New Source
                                                                                                              requirements for PM10 nonattainment areas (Title I,        TABLE 1—PM2.5 INCREMENTS ESTAB-
                                                                                                              Part D, subpart 4), and not the general requirements
                                                      Review Program for Particulate Matter                   for nonattainment areas under subpart 1. As the
                                                                                                                                                                          LISHED BY THE 2010 NSR RULE IN
                                                      Less than 2.5 Micrometers’’ (2008 NSR                   subpart 4 provisions apply only to nonattainment            MICROGRAMS PER CUBIC METER
                                                                                                              areas, EPA does not consider the portions of the
                                                      Rule). The 2008 NSR Rule finalized                      2008 rule that address requirements for PM2.5
                                                      several new requirements for SIPs to                                                                                                         Annual
                                                                                                              attainment and unclassifiable areas to be affected by                                                24-hour
                                                                                                                                                                                                  arithmetic
                                                      address sources that emit direct PM2.5                  the court’s opinion. Moreover, EPA does not                                                           max
                                                                                                                                                                                                    mean
                                                      and other pollutants that contribute to                 anticipate the need to revise any PSD requirements
                                                                                                              promulgated by the 2008 NSR Rule in order to
                                                      secondary PM2.5 formation. One of these                 comply with the court’s decision. Accordingly,
                                                                                                                                                                        Class I ...............                1          2
                                                      requirements is for NSR permits to                                                                                Class II ..............                4          9
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                                                                              EPA’s approval of Wisconsin’s infrastructure SIP as
                                                                                                              to elements (C), (D)(i)(II), or (J) with respect to the   Class III .............                8         18
                                                         2 EPA highlights this statutory requirement in an    PSD requirements promulgated by the 2008
                                                      October 2, 2007, guidance document entitled             implementation rule does not conflict with the
                                                      ‘‘Guidance on SIP Elements Required Under               court’s opinion.                                          from infrastructure SIP submissions due three years
                                                      Sections 110(a)(1) and (2) for the 1997 8-hour             The court’s decision with respect to the               after adoption or revision of a NAAQS. Instead,
                                                      Ozone and PM2.5 National Ambient Air Quality            nonattainment NSR requirements promulgated by             these elements are typically referred to as
                                                      Standards’’ and has issued additional guidance          the 2008 implementation rule also does not affect         nonattainment SIP or attainment plan elements,
                                                      documents, the most recent on September 13, 2013,       EPA’s action on the present infrastructure action.        which would be due by the dates statutorily
                                                      ‘‘Guidance on Infrastructure State Implementation       EPA interprets the CAA to exclude nonattainment           prescribed under subparts 2 through 5 under part
                                                      Plan (SIP) Elements under Clean Air Act Sections        area requirements, including requirements                 D, extending as far as 10 years following
                                                      110(a)(1) and (2)’’ (2013 memo).                        associated with a nonattainment NSR program,              designations for some elements.



                                                 VerDate Sep<11>2014   18:55 Sep 29, 2016   Jkt 238001   PO 00000   Frm 00048   Fmt 4702   Sfmt 4702   E:\FR\FM\30SEP1.SGM       30SEP1


                                                                            Federal Register / Vol. 81, No. 190 / Friday, September 30, 2016 / Proposed Rules                                           67265

                                                         The 2010 NSR Rule also established a                 applying the requirement that a state’s               interfere with attainment and
                                                      new ‘‘major source baseline date’’ for                  SIP-approved PSD program require that                 maintenance of the NAAQS.
                                                      PM2.5 as October 20, 2010, and a new                    sources obtain PSD permits when GHGs                     Certain sub-elements in this section
                                                      trigger date for PM2.5 as October 20,                   are the only pollutant (i) that the source            overlap with elements of section
                                                      2011. These revisions are codified in 40                emits or has the potential to emit above              110(a)(2)(D)(i) and 110(a)(2)(J). These
                                                      CFR 51.166(b)(14)(i)(c) and (b)(14)(ii)(c),             the major source thresholds, or (ii) for              links will be discussed in the
                                                      and 40 CFR 52.21(b)(14)(i)(c) and (ii)(c).              which there is a significant emissions                appropriate areas below.
                                                      Lastly, the 2010 NSR Rule revised the                   increase and a significant net emissions              2. Section 110(a)(2)(D)(i)(II)—Interstate
                                                      definition of ‘‘baseline area’’ to include              increase from a modification (e.g. 40                 Transport
                                                      a level of significance of 0.3 micrograms               CFR 51.166(b)(48)(v)).
                                                      per cubic meter, annual average, for                      EPA anticipates a need to revise                       Section 110(a)(2)(D)(i)(II) requires that
                                                      PM2.5. This change is codified in 40 CFR                Federal PSD rules and for many states                 SIPs include provisions prohibiting any
                                                      51.166(b)(15)(i) and 40 CFR                             to revise their existing SIP-approved                 source or other type of emissions
                                                      52.21(b)(15)(i).                                        PSD programs in light of the Supreme                  activity in one state from interfering
                                                         EPA is proposing to approve revisions                                                                      with measures required to prevent
                                                                                                              Court opinion. The timing and content
                                                      to Wisconsin’s PSD SIP reflecting these                                                                       significant deterioration of air quality or
                                                                                                              of subsequent EPA actions with respect
                                                      requirements in today’s rulemaking, and                                                                       to protect visibility in another state.
                                                                                                              to the EPA regulations and state PSD                     EPA notes that Wisconsin’s
                                                      therefore is proposing to find that                     program approvals are expected to be
                                                      Wisconsin has met this set of                                                                                 satisfaction of the applicable
                                                                                                              informed by additional legal process                  infrastructure SIP PSD requirements for
                                                      infrastructure SIP requirements for                     before the United States Court of
                                                      section 110(a)(2)(C) with respect to the                                                                      the 1997 PM2.5, 1997 ozone, 2006 PM2.5,
                                                                                                              Appeals for the District of Columbia. At              2008 lead, 2008 ozone, 2010 NO2, 2010
                                                      1997 PM2.5, 1997 ozone, 2006 PM2.5,                     this juncture, EPA is not expecting
                                                      2008 lead, 2008 ozone, 2010 NO2, 2010                                                                         SO2, and 2012 PM2.5 NAAQS have been
                                                                                                              states to have revised their PSD                      detailed in the section addressing
                                                      SO2, and 2012 PM2.5 NAAQS.                              programs for purposes of infrastructure               section 110(a)(2)(C). EPA further notes
                                                      (v) GHG Permitting and the ‘‘Tailoring                  SIP submissions and is only evaluating                that the proposed actions in that section
                                                      Rule’’                                                  such submissions to ensure that the                   related to PSD are consistent with the
                                                         With respect to CAA Sections                         state’s program correctly addresses                   proposed actions related to PSD for
                                                      110(a)(2)(C) and (J), EPA interprets the                GHGs consistent with the Supreme                      section 110(a)(2)(D)(i)(II), and they are
                                                      CAA to require each state to make an                    Court’s decision.                                     reiterated below.
                                                      infrastructure SIP submission for a new                   At present, EPA is proposing that                      EPA has previously approved or is
                                                      or revised NAAQS that demonstrates                      Wisconsin’s SIP is sufficient to satisfy              proposing in today’s action to approve
                                                      that the air agency has a complete PSD                  sections 110(a)(2)(C), (D)(i)(II), and (J)            revisions to Wisconsin’s SIP that meet
                                                      permitting program meeting the current                  with respect to GHGs, because the PSD                 certain requirements required by the
                                                      requirements for all regulated NSR                      permitting program previously                         Phase 2 Rule and the 2008 NSR Rule.
                                                      pollutants. The requirements of section                 approved by EPA into the SIP continues                These revisions included provisions
                                                      110(a)(2)(D)(i)(II) may also be satisfied               to require that PSD permits (otherwise                that: Explicitly identify NOX as a
                                                      by demonstrating the air agency has a                   required based on emissions of                        precursor to ozone, explicitly identify
                                                      complete PSD permitting program                         pollutants other than GHGs) contain                   SO2 and NOX as precursors to PM2.5,
                                                      correctly addressing all regulated NSR                  limitations on GHG emissions based on                 and regulate condensable PM2.5 and
                                                      pollutants. Wisconsin has shown that it                 the application of BACT. Although the                 PM10 in applicability determinations
                                                      currently has a PSD program in place                    approved Wisconsin PSD permitting                     and in establishing emissions limits.
                                                      that covers all regulated NSR pollutants,               program may currently contain                         EPA is also proposing in today’s action
                                                      including GHGs.                                         provisions that are no longer necessary               to approve revisions to Wisconsin’s SIP
                                                         On June 23, 2014, the United States                  in light of the Supreme Court decision,               that incorporate the PM2.5 increments
                                                      Supreme Court issued a decision                         this does not render the infrastructure               and the associated implementation
                                                      addressing the application of PSD                       SIP submission inadequate to satisfy                  regulations including the major source
                                                      permitting requirements to GHG                          Section 110(a)(2)(C), (D)(i)(II), and (J).            baseline date, trigger date, and level of
                                                      emissions. Utility Air Regulatory Group                 The SIP contains the necessary PSD                    significance for PM2.5 per the 2010 NSR
                                                      v. Environmental Protection Agency,                     requirements and the application of                   Rule. EPA is proposing that Wisconsin’s
                                                      134 S.Ct. 2427. The Supreme Court said                  those requirements is not impeded by                  SIP contains provisions that adequately
                                                      that the EPA may not treat GHGs as an                   the presence of other previously-                     address the 1997 PM2.5, 1997 ozone,
                                                      air pollutant for purposes of                           approved provisions regarding the                     2006 PM2.5, 2008 lead, 2008 ozone, 2010
                                                      determining whether a source is a major                 permitting of sources of GHGs that EPA                NO2, 2010 SO2, and 2012 PM2.5 NAAQS.
                                                      source required to obtain a PSD permit.                 does not consider necessary at this time                 States also have an obligation to
                                                      The Court also said that the EPA could                  in light of the Supreme Court decision.               ensure that sources located in
                                                      continue to require that PSD permits,                     For the purposes infrastructure SIPs,               nonattainment areas do not interfere
                                                      otherwise required based on emissions                   EPA reiterates that NSR Reform                        with a neighboring state’s PSD program.
                                                      of pollutants other than GHGs, contain                  regulations are not within the scope of               One way that this requirement can be
                                                      limitations on GHG emissions based on                   these actions. Therefore, we are not                  satisfied is through an NNSR program
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      the application of Best Available                       taking action on existing NSR Reform                  consistent with the CAA that addresses
                                                      Control Technology (BACT).                              regulations for Wisconsin. EPA                        any pollutants for which there is a
                                                         In order to act consistently with its                approved Wisconsin’s minor NSR                        designated nonattainment area within
                                                      understanding of the Court’s decision,                  program on January 18, 1995 (see 60 FR                the state.
                                                      the EPA no longer applies EPA                           3543); and since that date, WDNR and                     Wisconsin’s EPA-approved NNSR
                                                      regulations that would require that SIPs                EPA have relied on the existing minor                 regulations found in Part 2 of the SIP,
                                                      include the permitting requirements                     NSR program to ensure that new and                    specifically in chapter NR 408 of the
                                                      that the Supreme Court found                            modified sources not captured by the                  Wisconsin Administrative Code, are
                                                      impermissible. Specifically, EPA is not                 major NSR permitting programs do not                  consistent with 40 CFR 51.165, or 40


                                                 VerDate Sep<11>2014   18:55 Sep 29, 2016   Jkt 238001   PO 00000   Frm 00049   Fmt 4702   Sfmt 4702   E:\FR\FM\30SEP1.SGM   30SEP1


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

                                                      CFR part 51, appendix S. Therefore,                     (D)(i)(II), and (J) for Wisconsin’s 1997                 • Is not an economically significant
                                                      EPA proposes that Wisconsin has met                     PM2.5, 1997 ozone, 2006 PM2.5, 2008                   regulatory action based on health or
                                                      all of the applicable PSD requirements                  lead, 2008 ozone, 2010 NO2, 2010 SO2,                 safety risks subject to Executive Order
                                                      for the 1997 PM2.5, 1997 ozone, 2006                    and 2012 PM2.5 NAAQS submittals.                      13045 (62 FR 19885, April 23, 1997);
                                                      PM2.5, 2008 lead, 2008 ozone, 2010 NO2,                                                                          • Is not a significant regulatory action
                                                                                                              IV. Incorporation by Reference
                                                      2010 SO2, and 2012 PM2.5 NAAQS for                                                                            subject to Executive Order 13211 (66 FR
                                                      transport prong 3 related to section                      In this rule, EPA is proposing to                   28355, May 22, 2001);
                                                      110(a)(2)(D)(i)(II).                                    include in a final EPA rule regulatory                   • Is not subject to requirements of
                                                                                                              text that includes incorporation by                   Section 12(d) of the National
                                                      3. Section 110(a)(2)(J)—Consultation                    reference. In accordance with                         Technology Transfer and Advancement
                                                      With Government Officials; Public                       requirements of 1 CFR 51.5, EPA is                    Act of 1995 (15 U.S.C. 272 note) because
                                                      Notifications; PSD; Visibility Protection               proposing to incorporate by reference                 application of those requirements would
                                                        States must meet applicable                           the WDNR rules regarding revisions to                 be inconsistent with the Clean Air Act;
                                                      requirements of section 110(a)(2)(C)                    the PSD and NSR programs discussed in                 and
                                                      related to PSD. WDNR’s PSD program in                   section I of this preamble. EPA has                      • Does not provide EPA with the
                                                      the context of infrastructure SIPs has                  made, and will continue to make, these                discretionary authority to address, as
                                                      already been discussed in the                           documents generally available through                 appropriate, disproportionate human
                                                      paragraphs addressing section                           www.regulations.gov, and/or at the                    health or environmental effects, using
                                                      110(a)(2)(C) and 110(a)(2)(D)(i)(II), and               National Archives and Records                         practicable and legally permissible
                                                      EPA notes that the proposed actions for                 Administration (NARA), and/or at the                  methods, under Executive Order 12898
                                                      those sections are consistent with the                  EPA Region 5 Office (please contact the               (59 FR 7629, February 16, 1994).
                                                      proposed actions for this portion of                    person identified in the FOR FURTHER                     In addition, the SIP is not approved
                                                      section 110(a)(2)(J). Therefore, EPA                    INFORMATION CONTACT section of this                   to apply on any Indian reservation land
                                                      proposes that Wisconsin has met all of                  preamble for more information). For                   or in any other area where EPA or an
                                                      the infrastructure SIP requirements for                 information on the availability of this               Indian tribe has demonstrated that a
                                                      PSD associated with section 110(a)(2)(J)                material at NARA, go to:                              tribe has jurisdiction. In those areas of
                                                      for the 1997 PM2.5, 1997 ozone, 2006                    www.archives.gov/federal-register/cfr/                Indian country, the rule does not have
                                                      PM2.5, 2008 lead, 2008 ozone, 2010 NO2,                 ibr-locations.html.                                   tribal implications and will not impose
                                                      2010 SO2, and 2012 PM2.5 NAAQS.                         VI. Statutory and Executive Order                     substantial direct costs on tribal
                                                                                                              Reviews                                               governments or preempt tribal law as
                                                      III. What action is EPA taking?
                                                                                                                                                                    specified by Executive Order 13175 (65
                                                         EPA is proposing to approve revisions                   Under the CAA, the Administrator is                FR 67249, November 9, 2000).
                                                      to Wisconsin’s SIP that implement the                   required to approve a SIP submission
                                                      PM2.5 increment requirements and also                   that complies with the provisions of the              List of Subjects in 40 CFR Part 52
                                                      incorporates NOX as an ozone precursor.                 CAA and applicable Federal regulations.                 Environmental protection, Air
                                                      These revisions were made to meet                       42 U.S.C. 7410(k); 40 CFR 52.02(a).                   pollution control, Incorporation by
                                                      EPA’s requirements for Wisconsin’s PSD                  Thus, in reviewing SIP submissions,                   reference, Intergovernmental relations,
                                                      and NSR program and are consistent                      EPA’s role is to approve state choices,               Lead, Nitrogen dioxide, Ozone,
                                                      with Federal regulations. Specifically,                 provided that they meet the criteria of               Particulate matter, Reporting and
                                                      EPA is proposing to approve the                         the CAA. Accordingly, this action                     recordkeeping requirements, Sulfur
                                                      following:                                              merely approves state law as meeting                  oxides.
                                                      (i) NR 404.05(2)(intro) and (am)                        Federal requirements and does not
                                                                                                                                                                      Dated: September 21, 2016.
                                                      (ii) NR 404.05(3)(intro) and (am)                       impose additional requirements beyond
                                                                                                              those imposed by state law. For that                  Robert A. Kaplan,
                                                      (iii) NR 404.05(4)(intro) and (am)                                                                            Acting Regional Administrator, Region 5.
                                                      (iv) NR 405.02(3) and (21)(a)                           reason, this action:
                                                                                                                 • Is not a significant regulatory action           [FR Doc. 2016–23689 Filed 9–29–16; 8:45 am]
                                                      (v) NR 405.02(21m)(a) and (c)
                                                                                                              subject to review by the Office of                    BILLING CODE 6560–50–P
                                                      (vi) NR 405.02(22)(b)
                                                                                                              Management and Budget under
                                                      (vii) NR 405.02(22m)(a)1. and 3., and
                                                                                                              Executive Orders 12866 (58 FR 51735,
                                                         (b)1.                                                                                                      ENVIRONMENTAL PROTECTION
                                                                                                              October 4, 1993) and 13563 (76 FR 3821,
                                                      (viii) NR 405.02(27)(a)6.                                                                                     AGENCY
                                                                                                              January 21, 2011);
                                                      (ix) NR 405.07(8)(a)3m and 3m(Note)                        • Does not impose an information
                                                      (x) NR 405.07(8)(a)5.(Note)                             collection burden under the provisions                40 CFR Part 435
                                                         The revisions pertaining to PM2.5                    of the Paperwork Reduction Act (44                    [EPA–HQ–OW–2016–0598; FRL–9953–25–
                                                      increment will fully address the                        U.S.C. 3501 et seq.);                                 OW]
                                                      requirements of the PM2.5 PSD                              • Is certified as not having a
                                                      Increments, SILs, and SMC Rule and the                                                                        [RIN 2040–AF68]
                                                                                                              significant economic impact on a
                                                      deficiencies identified in EPA’s August                 substantial number of small entities                  Effluent Limitations Guidelines and
                                                      11, 2014, Finding of Failure to Submit.                 under the Regulatory Flexibility Act (5               Standards for the Oil and Gas
                                                      The revisions pertaining to NOX as a                    U.S.C. 601 et seq.);
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                                                                                                                                    Extraction Point Source Category—
                                                      precursor to ozone will, in conjunction                    • Does not contain any unfunded                    Implementation Date Extension
                                                      with EPA’s October 6, 2015 approval,                    mandate or significantly or uniquely
                                                      address all of the PSD requirements of                  affect small governments, as described                AGENCY:  Environmental Protection
                                                      the ‘‘Final Rule to Implement the 8-                    in the Unfunded Mandates Reform Act                   Agency (EPA).
                                                      Hour Ozone National Ambient Air                         of 1995 (Public Law 104–4);                           ACTION: Proposed rule.
                                                      Quality Standard—Phase 2’’.                                • Does not have Federalism
                                                         EPA is also proposing to approve the                 implications as specified in Executive                SUMMARY: The Environmental Protection
                                                      PSD related infrastructure requirements                 Order 13132 (64 FR 43255, August 10,                  Agency (EPA) proposes to extend the
                                                      found in CAA sections 110(a)(2)(C),                     1999);                                                implementation deadline for certain


                                                 VerDate Sep<11>2014   18:55 Sep 29, 2016   Jkt 238001   PO 00000   Frm 00050   Fmt 4702   Sfmt 4702   E:\FR\FM\30SEP1.SGM   30SEP1



Document Created: 2018-02-09 13:34:10
Document Modified: 2018-02-09 13:34:10
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionProposed rule.
DatesComments must be received on or before October 31, 2016.
ContactAndrea 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, [email protected]
FR Citation81 FR 67261 
CFR AssociatedEnvironmental Protection; Air Pollution Control; Incorporation by Reference; Intergovernmental Relations; Lead; Nitrogen Dioxide; Ozone; Particulate Matter; Reporting and Recordkeeping Requirements and Sulfur Oxides

2025 Federal Register | Disclaimer | Privacy Policy
USC | CFR | eCFR