Approval and Promulgation of Air Quality Implementation Plans; Illinois; Indiana; Michigan; Minnesota; Ohio; Wisconsin; Infrastructure SIP Requirements for the 1997 8-Hour Ozone and PM2.5, 41075-41086 [2011-17463]
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Federal Register / Vol. 76, No. 134 / Wednesday, July 13, 2011 / Rules and Regulations
Sector Southeastern New England
Captain of the Port Zone.
■ 3. Add § 165.123 to read as follows:
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§ 165.123 Cruise Ships, Sector
Southeastern New England Captain of the
Port (COTP) Zone.
(a) Location. The following areas are
security zones: All navigable waters
within the Southeastern New England
Captain of the Port (COTP) Zone,
extending from the surface to the sea
floor:
(1) Within a 200-yard radius of any
cruise ship that is underway and is
under escort of U.S. Coast Guard law
enforcement personnel or designated
representative, or
(2) Within a 100-yard radius of any
cruise ship that is anchored, at any
berth or moored.
(b) Definitions. For the purposes of
this section—
Cruise ship means a passenger vessel
as defined in 46 U.S.C. 2101(22), that is
authorized to carry more than 400
passengers and is 200 or more feet in
length. A cruise ship under this section
will also include ferries as defined in 46
CFR 2.10–25 that are authorized to carry
more than 400 passengers and are 200
feet or more in length.
Designated representative means any
Coast Guard commissioned, warrant, or
petty officer who has been designated
by the COTP to act on the COTP’s
behalf. The designated representative
may be on a Coast Guard vessel, or
onboard Federal, state, or a local agency
vessel that is authorized to act in
support of the Coast Guard.
Southeastern New England COTP
Zone is as defined in 33 CFR 3.05–20.
(c) Enforcement. The security zones
described in this section will be
activated and enforced upon entry of
any cruise ship into the navigable
waters of the United States (see 33 CFR
2.36(a) to include the 12 NM territorial
sea) in the Southeastern New England
COTP zone. This zone will remain
activated at all times while a cruise ship
is within the navigable waters of the
United States in the Sector Southeastern
New England COTP Zone. In addition,
the Coast Guard may broadcast the area
designated as a security zone for the
duration of the enforcement period via
Broadcast Notice to Mariners.
(d) Regulations. (1) In accordance
with the general regulations in 33 CFR
part 165, subpart D, no person or vessel
may enter or move within the security
zones created by this section unless
granted permission to do so by the
COTP Southeastern New England or the
designated representative.
(2) All persons and vessels granted
permission to enter a security zone must
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comply with the instructions of the
COTP or the designated representative.
Emergency response vessels are
authorized to move within the zone, but
must abide by the restrictions imposed
by the COTP or the designated
representative.
(3) No person may swim upon or
below the surface of the water within
the boundaries of these security zones
unless previously authorized by the
COTP or his designated representative.
(4) Upon being hailed by a U.S. Coast
Guard vessel or the designated
representative, by siren, radio, flashing
light or other means, the operator of the
vessel shall proceed as directed.
(5) Vessel operators desiring to enter
or operate within the security zone shall
contact the COTP or the designated
representative via VHF channel 16 or
508–457–3211 (Sector Southeastern
New England command center) to
obtain permission to do so.
Dated: June 16, 2011.
V.B. Gifford, Jr.,
Captain, U.S. Coast Guard, Captain of the
Port Southeastern New England.
41075
Copyright Royalty Judges, Public Law
108–419, 118 Stat. 2341. The Act
replaced the royalty panels with three
Copyright Royalty Judges who
promulgated separate regulations to
govern their proceedings. See 37 CFR
Ch. III. The Act also provided for the
retention of the Copyright Arbitration
Royalty Panels (‘‘CARP’’) for the
purpose of concluding certain open
proceedings. For this reason, the Office
retained its regulations in order to
complete the open proceedings and as a
historical reference for those
determinations that had been decided
under the CARP system and had been
appealed. These proceedings, however,
have all been concluded and there is no
longer a need for these regulations.
Hence, the Office is amending its
regulations to remove the section that
governed the CARP proceedings.
List of Subjects in 37 CFR Part 251
Copyright Arbitration Royalty Panels
(CARPs), Copyright General Provisions,
Copyright Royalty Board, Copyright
Royalty Judges.
[FR Doc. 2011–17536 Filed 7–12–11; 8:45 am]
Final Rule
BILLING CODE 9110–04–P
PART 251—[REMOVED]
Accordingly, under the authority at 17
U.S.C. 702, 37 CFR Chapter II,
Subchapter B is amended by removing
part 251.
LIBRARY OF CONGRESS
Copyright Office
Dated: June 28, 2011.
Maria A. Pallante,
Register of Copyrights.
37 CFR Part 251
[Docket No. 2011–5]
Copyright Arbitration Royalty Panel
Rules and Procedures
Copyright Office, Library of
Congress.
ACTION: Final rule; technical
amendment.
AGENCY:
The Copyright Office is
making an amendment to its regulations
by removing Part 251 Copyright
Arbitration Royalty Panel Rules of
Procedure. In 2004, Congress replaced
the Copyright Arbitration Royalty
Panels with three Copyright Royalty
Judges who operate under separate
regulations.
SUMMARY:
DATES:
Effective Date: July 13, 2011.
FOR FURTHER INFORMATION CONTACT:
Tanya M. Sandros, Deputy General
Counsel, Copyright GC/I&R, P.O. Box
70400, Southwest Station, Washington,
DC 20024. Telephone: (202) 707–8380.
Telefax: (202) 707–8366.
SUPPLEMENTARY INFORMATION: On
November 30, 2004 the Copyright
Royalty and Distribution Reform Act of
2004 was signed into law creating the
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Approved by:
James H. Billington,
The Librarian of Congress.
[FR Doc. 2011–17657 Filed 7–12–11; 8:45 am]
BILLING CODE 1410–30–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R05–OAR–2007–1179; FRL–9436–7]
Approval and Promulgation of Air
Quality Implementation Plans; Illinois;
Indiana; Michigan; Minnesota; Ohio;
Wisconsin; Infrastructure SIP
Requirements for the 1997 8-Hour
Ozone and PM2.5 National Ambient Air
Quality Standards
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
EPA is taking final action to
approve elements of submissions by
Illinois, Indiana, Michigan, Minnesota,
Ohio, and Wisconsin regarding the
SUMMARY:
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Federal Register / Vol. 76, No. 134 / Wednesday, July 13, 2011 / Rules and Regulations
infrastructure requirements of sections
110(a)(1) and (2) of the Clean Air Act
(CAA) for the 1997 eight-hour ground
level ozone national ambient air quality
standards (1997 8-hour ozone NAAQS)
and 1997 fine particle national ambient
air quality standards (1997 PM2.5
NAAQS). The infrastructure
requirements are designed to ensure that
the structural components of each
state’s air quality management program
are adequate to meet the state’s
responsibilities under the CAA. The
proposed rulemaking was published on
April 28, 2011. During the comment
period, which ended on May 31, 2011,
EPA received three comment letters
raising a number of concerns, which
will be addressed in this final action.
DATES: This final rule is effective on
August 12, 2011.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–R05–OAR–2007–1179. All
documents in the docket are listed on
the https://www.regulations.gov Web
site. Although listed in the index, some
information is not publicly available,
i.e., Confidential Business Information
(CBI) or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available either electronically through
https://www.regulations.gov or in hard
copy at the Environmental Protection
Agency, Region 5, Air and Radiation
Division, 77 West Jackson Boulevard,
Chicago, Illinois 60604. This facility is
open from 8:30 a.m. to 4:30 p.m.,
Monday through Friday, excluding
Federal holidays. We recommend that
you telephone Andy Chang at (312)
886–0258 before visiting the Region 5
office.
FOR FURTHER INFORMATION CONTACT:
Andy Chang, Environmental Engineer,
Attainment Planning and Maintenance
Section, Air Programs Branch (AR–18J),
U.S. Environmental Protection Agency,
Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604, (312) 886–0258,
chang.andy@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
EPA. This SUPPLEMENTARY INFORMATION
section is arranged as follows:
I. What is the background for this action?
II. What is the scope of this final rulemaking?
III. What is our response to comments
received on the notice of proposed
rulemaking?
IV. What action is EPA taking?
V. Statutory and Executive Order Reviews
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I. What is the background for this
action?
This final rulemaking addresses state
submittals from each state (and
appropriate state agency) in EPA Region
5: Illinois Environmental Protection
Agency (Illinois EPA); Indiana
Department of Environmental
Management (IDEM); Michigan
Department of Environmental Quality
(MDEQ); Minnesota Pollution Control
Agency (MPCA); Ohio Environmental
Protection Agency (Ohio EPA); and
Wisconsin Department of Natural
Resources Bureau of Air Management
(WDNR). At the time of our proposed
rulemaking, each state had made
submittals on the following dates:
Illinois—December 12, 2007; Indiana—
December 7, 2007, and supplemented
on September 19, 2008, March 23, 2011,
and April 7, 2011; Michigan—December
6, 2007, and supplemented on
September 19, 2008 and April 6, 2011;
Minnesota—November 29, 2007; Ohio—
December 5, 2007, and supplemented
on April 7, 2011; and, Wisconsin—
December 12, 2007, and supplemented
on January 24, 2011 and March 28,
2011. The submissions from each state,
and the supplements thereto, may be
found in the docket for this action.
Under sections 110(a)(1) and (2) of the
CAA, and implementing EPA policy, the
states were required to submit either
revisions to their State Implementation
Plans (SIPs) necessary to provide for
implementation, maintenance, and
enforcement of the 1997 8-hour ozone
NAAQS or the 1997 PM2.5 NAAQS, or
certifications that their existing SIPs for
ozone and particulate matter already
met those basic requirements. The
statute requires that states make these
submissions within three years after the
promulgation of new or revised
NAAQS. However, intervening litigation
over the 1997 8-hour ozone NAAQS and
the 1997 PM2.5 NAAQS created
uncertainty about how states were to
proceed.1 Accordingly, both EPA and
the states were delayed in addressing
these basic SIP requirements.
In a consent decree with Earth Justice,
EPA agreed to make completeness
findings with respect to these SIP
submissions. Pursuant to this consent
decree, EPA published completeness
findings for all states for the 1997 8hour ozone NAAQS on March 27, 2008,
and for all states for the 1997 PM2.5
NAAQS on October 22, 2008.
On October 2, 2007, EPA issued a
guidance document entitled ‘‘Guidance
on SIP Elements Required Under
Sections 110(a)(1) and (2) for the 1997
1 See, e.g., Whitman v. American Trucking
Associations, Inc., 531 U.S. 457 (2001).
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8-hour Ozone and PM2.5 National
Ambient Air Quality Standards,’’
making recommendations to states
concerning these SIP submissions (the
2007 Guidance). Within the 2007
Guidance, EPA gave general guidance
relevant to matters such as the timing
and content of the submissions.
EPA published its proposed action on
the states’ submissions on April 28,
2011. During the comment period on
this proposal, EPA received three
comment letters raising a number of
concerns with respect to various issues
for one or more states addressed in the
proposal. EPA addresses the significant
comments in this final action.
EPA received comments concerning
the proposed approval of the
submission from the State of Wisconsin
that require further evaluation.
Accordingly, today EPA is not finalizing
its proposed approval of that
submission for section 110(a)(2)(C) with
respect to two narrow issues: (i) The
requirement for consideration of oxides
of nitrogen (NOX); and (ii) the definition
of ‘‘major modification’’ related to fuel
changes for certain sources. EPA will
address these issues in a later action.
II. What is the scope of this final
rulemaking?
EPA is currently acting upon SIPs that
address the infrastructure requirements
of CAA section 110(a)(1) and (2) for
ozone and PM2.5 NAAQS for various
states across the country. Commenters
on EPA’s recent proposals for some
States raised concerns about EPA
statements that it was not addressing
certain substantive issues in the context
of acting on the infrastructure SIP
submissions.2 The commenters
specifically raised concerns involving
provisions in existing SIPs and with
EPA’s statements that it would address
two issues separately and not as part of
actions on the infrastructure SIP
submissions: (i) Existing provisions
related to excess emissions during
periods of start-up, shutdown, or
malfunction at sources, that may be
contrary to the CAA and EPA’s policies
addressing such excess emissions
(‘‘SSM’’); and (ii) existing provisions
related to ‘‘director’s variance’’ or
‘‘director’s discretion’’ that purport to
permit revisions to SIP approved
emissions limits with limited public
process or without requiring further
approval by EPA, that may be contrary
to the CAA (‘‘director’s discretion’’).
EPA notes that there are two other
2 See, Comments of Midwest Environmental
Defense Center, dated May 31, 2011. Docket # EPA–
R05–OAR–2007–1179 (adverse comments on
proposals for three states in Region 5).
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Federal Register / Vol. 76, No. 134 / Wednesday, July 13, 2011 / Rules and Regulations
substantive issues for which EPA
likewise stated that it would address the
issues separately: (i) Existing provisions
for minor source new source review
programs that may be inconsistent with
the requirements of the CAA and EPA’s
regulations that pertain to such
programs (‘‘minor source NSR’’); and (ii)
existing provisions for prevention of
significant deterioration (PSD) programs
that may be inconsistent with current
requirements of EPA’s ‘‘Final NSR
Improvement Rule,’’ 67 FR 80186
(December 31, 2002), as amended by 72
FR 32526 (June 13, 2007) (‘‘NSR
Reform’’). In light of the comments, EPA
now believes that its statements in
various proposed actions on
infrastructure SIPs with respect to these
four individual issues should be
explained in greater depth with respect
to these issues.
EPA intended the statements in the
proposals concerning these four issues
merely to be informational, and to
provide general notice of the potential
existence of provisions within the
existing SIPs of some states that might
require future corrective action. EPA did
not want states, regulated entities, or
members of the public to be under the
misconception that the Agency’s
approval of the infrastructure SIP
submission of a given state should be
interpreted as a reapproval of certain
types of provisions that might exist
buried in the larger existing SIP for such
state. Thus, for example, EPA explicitly
noted that the Agency believes that
some states may have existing SIP
approved SSM provisions that are
contrary to the CAA and EPA policy,
but that ‘‘in this rulemaking, EPA is not
proposing to approve or disapprove any
existing State provisions with regard to
excess emissions during SSM of
operations at facilities.’’ EPA further
explained, for informational purposes,
that ‘‘EPA plans to address such State
regulations in the future.’’ EPA made
similar statements, for similar reasons,
with respect to the director’s discretion,
minor source NSR, and NSR Reform
issues. EPA’s objective was to make
clear that approval of an infrastructure
SIP for these ozone and PM2.5 NAAQS
should not be construed as explicit or
implicit reapproval of any existing
provisions that relate to these four
substantive issues.
Unfortunately, the commenters and
others evidently interpreted these
statements to mean that EPA considered
action upon the SSM provisions and the
other three substantive issues to be
integral parts of acting on an
infrastructure SIP submission, and
therefore that EPA was merely
postponing taking final action on the
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issue in the context of the infrastructure
SIPs. This was not EPA’s intention. To
the contrary, EPA only meant to convey
its awareness of the potential for certain
types of deficiencies in existing SIPs,
and to prevent any misunderstanding
that it was reapproving any such
existing provisions. EPA’s intention was
to convey its position that the statute
does not require that infrastructure SIPs
address these specific substantive issues
in existing SIPs and that these issues
may be dealt with separately, outside
the context of acting on the
infrastructure SIP submission of a state.
To be clear, EPA did not mean to imply
that it was not taking a full final agency
action on the infrastructure SIP
submission with respect to any
substantive issue that EPA considers to
be a required part of acting on such
submissions under section 110(k) or
under section 110(c). Given the
confusion evidently resulting from
EPA’s statements, however, we want to
explain more fully the Agency’s reasons
for concluding that these four potential
substantive issues in existing SIPs may
be addressed separately.
The requirement for the SIP
submissions at issue arises out of CAA
section 110(a)(1). That provision
requires that states must make a SIP
submission ‘‘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
that these SIPS are to provide for the
‘‘implementation, maintenance, and
enforcement’’ of such NAAQS. Section
110(a)(2) includes a list of specific
elements that ‘‘[e]ach such plan’’
submission must meet. EPA has
historically referred to these particular
submissions that states must make after
the promulgation of a new or revised
NAAQS as ‘‘infrastructure SIPs.’’ This
specific term does not appear in the
statute, but EPA uses the term to
distinguish this particular type of SIP
submission designed to address basic
structural requirements of a SIP from
other types of SIP submissions designed
to address other different requirements,
such as ‘‘nonattainment SIP’’
submissions required to address the
nonattainment planning requirements of
part D, ‘‘regional haze SIP’’ submissions
required to address the visibility
protection requirements of CAA section
169A, new source review permitting
program submissions required to
address the requirements of part D, and
a host of other specific types of SIP
submissions that address other specific
matters.
Although section 110(a)(1) addresses
the timing and general requirements for
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41077
these infrastructure SIPs, and section
110(a)(2) provides more details
concerning the required contents of
these infrastructure SIPs, EPA believes
that many of the specific statutory
provisions are facially ambiguous. In
particular, the list of required elements
provided in section 110(a)(2) contains a
wide variety of disparate provisions,
some of which pertain to required legal
authority, some of which pertain to
required substantive provisions, and
some of which pertain to requirements
for both authority and substantive
provisions.3 Some of the elements of
section 110(a)(2) are relatively
straightforward, but others clearly
require interpretation by EPA through
rulemaking, or recommendations
through guidance, in order to give
specific meaning for a particular
NAAQS.4
Notwithstanding that section 110(a)(2)
states that ‘‘each’’ SIP submission must
meet the list of requirements therein,
EPA has long noted that this literal
reading of the statute is internally
inconsistent, insofar as section
110(a)(2)(I) pertains to nonattainment
SIP requirements that could not be met
on the schedule provided for these SIP
submissions in section 110(a)(1).5 This
illustrates that EPA must determine
which provisions of section 110(a)(2)
may be applicable for a given
infrastructure SIP submission.
Similarly, EPA has previously decided
that it could take action on different
parts of the larger, general
‘‘infrastructure SIP’’ for a given NAAQS
without concurrent action on all
subsections, such as section
110(a)(2)(D)(i), because the Agency
bifurcated the action on these latter
‘‘interstate transport’’ provisions within
3 For example, section 110(a)(2)(E) provides that
states must provide assurances that they have
adequate legal authority under state and local law
to carry out the SIP; section 110(a)(2)(C) provides
that states must have a substantive program to
address certain sources as required by part C of the
CAA; section 110(a)(2)(G) provides that states must
have both legal authority to address emergencies
and substantive contingency plans in the event of
such an emergency.
4 For example, section 110(a)(2)(D)(i) requires
EPA to be sure that each state’s SIP contains
adequate provisions to prevent significant
contribution to nonattainment of the NAAQS in
other states. This provision contains numerous
terms that require substantial rulemaking by EPA in
order to determine such basic points as what
constitutes significant contribution. See, e.g., ‘‘Rule
To Reduce Interstate Transport of Fine Particulate
Matter and Ozone (Clean Air Interstate Rule);
Revisions to Acid Rain Program; Revisions to the
NOX SIP Call; Final Rule,’’ 70 FR 25162 (May 12,
2005) (defining, among other things, the phrase
‘‘contribute significantly to nonattainment’’).
5 See, e.g., Id., 70 FR 25162, at 63–65 (May 12,
2005) (explaining relationship between timing
requirement of section 110(a)(2)(D) versus section
110(a)(2)(I)).
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section 110(a)(2) and worked with states
to address each of the four prongs of
section 110(a)(2)(D)(i) with substantive
administrative actions proceeding on
different tracks with different
schedules.6 This illustrates that EPA
may conclude that subdividing the
applicable requirements of section
110(a)(2) into separate SIP actions may
sometimes be appropriate for a given
NAAQS where a specific substantive
action is necessitated, beyond a mere
submission addressing basic structural
aspects of the state’s SIP. Finally, EPA
notes that not every element of section
110(a)(2) would be relevant, or as
relevant, or relevant in the same way,
for each new or revised NAAQS and the
attendant infrastructure SIP submission
for that NAAQS. For example, the
monitoring requirements that might be
necessary for purposes of section
110(a)(2)(B) for one NAAQS could be
very different than what might be
necessary for a different pollutant. Thus,
the content of an infrastructure SIP
submission to meet this element from a
state might be very different for an
entirely new NAAQS, versus a minor
revision to an existing NAAQS.7
Similarly, EPA notes that other types
of SIP submissions required under the
statute also must meet the requirements
of section 110(a)(2), and this also
demonstrates the need to identify the
applicable elements for other SIP
submissions. For example,
nonattainment SIPs required by part D
likewise have to meet the relevant
subsections of section 110(a)(2) such as
section 110(a)(2)(A) or (E). By contrast,
it is clear that nonattainment SIPs
would not need to meet the portion of
section 110(a)(2)(C) that pertains to part
C, i.e., the PSD requirements applicable
in attainment areas. Nonattainment SIPs
required by part D also would not need
to address the requirements of section
110(a)(2)(G) with respect to emergency
episodes, as such requirements would
not be limited to nonattainment areas.
As this example illustrates, each type of
SIP submission may implicate some
subsections of section 110(a)(2) and not
others.
6 EPA issued separate guidance to states with
respect to SIP submissions to meet section
110(a)(2)(D)(i) for the 1997 ozone and 1997 PM2.5
NAAQS. See, ‘‘Guidance for State Implementation
Plan (SIP) Submissions to Meet Current
Outstanding Obligations Under Section
110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5
National Ambient Air Quality Standards,’’ from
William T. Harnett, Director Air Quality Policy
Division OAQPS, to Regional Air Division Director,
Regions I–X, dated August 15, 2006.
7 For example, implementation of the 1997 PM
2.5
NAAQS required the deployment of a system of
new monitors to measure ambient levels of that new
indicator species for the new NAAQS.
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Given the potential for ambiguity of
the statutory language of section
110(a)(1) and (2), EPA believes that it is
appropriate for EPA to interpret that
language in the context of acting on the
infrastructure SIPs for a given NAAQS.
Because of the inherent ambiguity of the
list of requirements in section 110(a)(2),
EPA has adopted an approach in which
it reviews infrastructure SIPs against
this list of elements ‘‘as applicable.’’ In
other words, EPA assumes that Congress
could not have intended that each and
every SIP submission, regardless of the
purpose of the submission or the
NAAQS in question, would meet each
of the requirements, or meet each of
them in the same way. EPA elected to
use guidance to make recommendations
for infrastructure SIPs for these NAAQS.
On October 2, 2007, EPA issued
guidance making recommendations for
the infrastructure SIP submissions for
both the 1997 8-hour ozone NAAQS and
the 1997 PM2.5 NAAQS.8 Within this
guidance document, EPA described the
duty of states to make these submissions
to meet what the Agency characterized
as the ‘‘infrastructure’’ elements for
SIPs, which it further described as the
‘‘basic SIP requirements, including
emissions inventories, monitoring, and
modeling to assure attainment and
maintenance of the standards.’’ 9 As
further identification of these basic
structural SIP requirements,
‘‘attachment A’’ to the guidance
document included a short description
of the various elements of section
110(a)(2) and additional information
about the types of issues that EPA
considered germane in the context of
such infrastructure SIPs. EPA
emphasized that the description of the
basic requirements listed on attachment
A was not intended ‘‘to constitute an
interpretation of’’ the requirements, and
was merely a ‘‘brief description of the
required elements.’’ 10 EPA also stated
its belief that with one exception, these
requirements were ‘‘relatively self
explanatory, and past experience with
SIPs for other NAAQS should enable
States to meet these requirements with
8 See, ‘‘Guidance on SIP Elements Required
Under Section 110(a)(1) and (2) for the 1997 8-hour
Ozone and PM2.5 National Ambient Air Quality
Standards,’’ from William T. Harnett, Director Air
Quality Policy Division, to Air Division Directors,
Regions I–X, dated October 2, 2007 (the ‘‘2007
Guidance’’). EPA issued comparable guidance for
the 2006 PM2.5 NAAQS entitled ‘‘Guidance on SIP
Elements Required Under Sections 110(a)(1) and (2)
for the 2006 24-Hour Fine Particle (PM2.5) National
Ambient Air Quality Standards (NAAQS),’’ from
William T, Harnett, Director Air Quality Policy
Division, to Regional Air Division Directors,
Regions I-X, dated September 25, 2009 (the ‘‘2009
Guidance’’).
9 Id., at page 2.
10 Id., at attachment A, page 1.
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assistance from EPA Regions.’’ 11 For the
one exception to that general
assumption, however, i.e., how states
should proceed with respect to the
requirements of section 110(a)(2)(G) for
the 1997 PM2.5 NAAQS, EPA gave much
more specific recommendations. But for
other infrastructure SIP submittals, and
for certain elements of the submittals for
the 1997 PM2.5 NAAQS, EPA assumed
that each state would work with its
corresponding EPA regional office to
refine the scope of a state’s submittal
based on an assessment of how the
requirements of section 110(a)(2) should
reasonably apply to the basic structure
of the State’s SIP for the NAAQS in
question.
Significantly, the 2007 Guidance did
not explicitly refer to the SSM,
director’s discretion, minor source NSR,
or NSR Reform issues as among specific
substantive issues EPA expected states
to address in the context of the
infrastructure SIPs, nor did EPA give
any more specific recommendations
with respect to how states might address
such issues even if they elected to do so.
The SSM and director’s discretion
issues implicate section 110(a)(2)(A),
and the minor source NSR and NSR
Reform issues implicate section
110(a)(2)(C). In the 2007 Guidance,
however, EPA did not indicate to states
that it intended to interpret these
provisions as requiring a substantive
submission to address these specific
issues in the context of the
infrastructure SIPs for these NAAQS.
Instead, EPA’s 2007 Guidance merely
indicated its belief that the states should
make submissions in which they
established that they have the basic SIP
structure necessary to implement,
maintain, and enforce the NAAQS. EPA
believes that states can establish that
they have the basic SIP structure,
notwithstanding that there may be
potential deficiencies within the
existing SIP. Thus, EPA’s proposals
mentioned these issues not because the
Agency considers them issues that must
be addressed in the context of an
infrastructure SIP as required by section
110(a)(1) and (2), but rather because
EPA wanted to be clear that it considers
these potential existing SIP problems as
separate from the pending infrastructure
SIP actions.
11 Id., at page 4. In retrospect, the concerns raised
by commenters with respect to EPA’s approach to
some substantive issues indicates that the statute is
not so ‘‘self explanatory,’’ and indeed is sufficiently
ambiguous that EPA needs to interpret it in order
to explain why these substantive issues do not need
to be addressed in the context of infrastructure SIPs
and may be addressed at other times and by other
means.
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EPA believes that this approach to the
infrastructure SIP requirement is
reasonable, because it would not be
feasible to read section 110(a)(1) and (2)
to require a top to bottom, stem to stern,
review of each and every provision of an
existing SIP merely for purposes of
assuring that the state in question has
the basic structural elements for a
functioning SIP for a new or revised
NAAQS. Because SIPs have grown by
accretion over the decades as statutory
and regulatory requirements under the
CAA have evolved, they may include
some outmoded provisions and
historical artifacts that, while not fully
up to date, nevertheless may not pose a
significant problem for the purposes of
‘‘implementation, maintenance, and
enforcement’’ of a new or revised
NAAQS when EPA considers the overall
effectiveness of the SIP. To the contrary,
EPA believes that a better approach is
for EPA to determine which specific SIP
elements from section 110(a)(2) are
applicable to an infrastructure SIP for a
given NAAQS, and to focus attention on
those elements that are most likely to
need a specific SIP revision in light of
the new or revised NAAQS. Thus, for
example, EPA’s 2007 Guidance
specifically directed states to focus on
the requirements of section 110(a)(2)(G)
for the 1997 PM2.5 NAAQS because of
the absence of underlying EPA
regulations for emergency episodes for
this NAAQS and an anticipated absence
of relevant provisions in existing SIPs.
Finally, EPA believes that its
approach is a reasonable reading of
section 110(a)(1) and (2) because the
statute provides other avenues and
mechanisms to address specific
substantive deficiencies in existing SIPs.
These other statutory tools allow the
Agency to take appropriate tailored
action, depending upon the nature and
severity of the alleged SIP deficiency.
Section 110(k)(5) authorizes EPA to
issue a ‘‘SIP call’’ whenever the Agency
determines that a state’s SIP is
substantially inadequate to attain or
maintain the NAAQS, to mitigate
interstate transport, or otherwise to
comply with the CAA.12 Section
110(k)(6) authorizes EPA to correct
errors in past actions, such as past
approvals of SIP submissions.13
12 EPA has recently issued a SIP call to rectify a
specific SIP deficiency related to the SSM issue.
See, ‘‘Finding of Substantial Inadequacy of
Implementation Plan; Call for Utah State
Implementation Plan Revision,’’ 74 FR 21639 (April
18, 2011).
13 EPA has recently utilized this authority to
correct errors in past actions on SIP submissions
related to PSD programs. See, ‘‘Limitation of
Approval of Prevention of Significant Deterioration
Provisions Concerning Greenhouse Gas EmittingSources in State Implementation Plans; Final Rule,’’
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Significantly, EPA’s determination that
an action on the infrastructure SIP is not
the appropriate time and place to
address all potential existing SIP
problems does not preclude the
Agency’s subsequent reliance on
provisions in section 110(a)(2) as part of
the basis for action at a later time. For
example, although it may not be
appropriate to require a state to
eliminate all existing inappropriate
director’s discretion provisions in the
course of acting on the infrastructure
SIP, EPA believes that section
110(a)(2)(A) may be among the statutory
bases that the Agency cites in the course
of addressing the issue in a subsequent
action.14
III. What is our response to comments
received on the notice of proposed
rulemaking?
The public comment period for EPA’s
proposal to approve some elements and
conditionally approve other elements of
certifications submitted by the Region 5
states closed on May 31, 2011. EPA
received three comment letters; a
synopsis of the significant individual
comments as well as EPA’s response to
each comment is discussed below.
Comment 1: One commenter objected
to EPA’s proposed approvals of the
states’ SIPs on the ground that the states
are not adequately notifying the public
of health risks related to the most recent
ozone and PM2.5 NAAQS. According to
the commenter, the SIPs are not
consistent with section 110(a)(2)(J), Subelement 2: Public Notification, and
EPA’s approval of the submissions
violates section 110(l). The commenter
argued that it ‘‘is wrong for States
inform the public that the air is ‘safe’
based on the 1997 ozone and PM2.5
NAAQS, particularly when EPA has
determined that concentrations of
ground-level ozone above 75 parts per
billion (ppb) and concentrations of
PM2.5 above 35 micrograms per cubic
meter (μg/m3) are unsafe.’’ The
commenter continued that ‘‘there is no
reason why States should not be
75 FR 82,536 (December 30, 2010). EPA has
previously used its authority under CAA 110(k)(6)
to remove numerous other SIP provisions that the
Agency determined it had approved in error. See,
e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641
(June 27, 1997) (corrections to American Samoa,
Arizona, California, Hawaii, and Nevada SIPs); 69
FR 67062 (November 16, 2004) (corrections to
California SIP); and 74 FR 57051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
14 EPA has recently disapproved a SIP submission
from Colorado on the grounds that it would have
included a director’s discretion provision
inconsistent with CAA requirements, including
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344
(July 21, 2010) (proposed disapproval of director’s
discretion provisions); 76 FR 4540 (Jan. 26, 2011)
(final disapproval of such provisions).
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informing the public of air pollution
dangers based on the 75 ppb ozone
NAAQS and the 35 μg/m3 PM2.5
NAAQS.’’ The commenter urged EPA to
require states to inform the public of
‘‘unsafe air pollution levels based on
EPA’s official understanding of current
public health science.’’
Response 1: EPA disagrees with the
commenter’s view that the existing SIPs
of these states are not sufficient for
purposes of the 1997 8-hour ozone
NAAQS and the 1997 PM2.5 NAAQS,
and that approval thereof is inconsistent
with section 110(l). In the proposed
rulemaking, EPA concluded that each of
the Region 5 states ‘‘* * * has met the
requirements of this portion of section
110(a)(2)(J) with respect to the 1997
ozone and PM2.5 NAAQS.’’ As explained
above, in these actions EPA is only
addressing the 1997 8-hour ozone
NAAQS and the 1997 PM2.5 NAAQS,
and is not taking action with respect to
any other NAAQS.
EPA agrees with the commenter that
these NAAQS are not as protective as
needed for public health and welfare, as
shown by EPA’s more recent
promulgation of new NAAQS for both
ground level ozone and particulate
matter based on new or revised health
assessments.15 Nevertheless, all of the
Region 5 states’ submittals at issue in
this action were intended to satisfy the
infrastructure SIP requirements in
relation to the 1997 8-hour ozone
NAAQS and 1997 PM2.5 NAAQS. EPA’s
action here only addresses the
requirements of section 110(a)(1) and (2)
in the context of these NAAQS, and not
of any subsequent NAAQS. EPA will be
taking separate actions on the Region 5
states’ submissions for section
110(a)(1)and (2) with respect to the
revised ozone and PM2.5 NAAQS. In
those later actions, EPA will evaluate
the states’ satisfaction of applicable
elements of section 110(a)(2), including
section 110(a)(2)(J), based on the
applicable NAAQS.
As a further point of information, EPA
observes that all Region 5 states
participate in the AIRNOW program,
which reports air quality according to
the current promulgated indices. Thus,
members of the public do have access to
information concerning the ambient air
quality in their states, and this
information is given with respect to the
most recent ozone and PM2.5 NAAQS.
EPA believes that the availability of this
information serves to address the
15 The most recent revisions to the 8-hour ground
level ozone NAAQS was published in the Federal
Register on March 27, 2008 (73 FR 16436), and the
most recent revisions to the 24-hour PM2.5 NAAQS
was published in the Federal Register on October
17, 2006 (71 FR 61144).
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commenter’s concerns with respect to
public information.
Finally, EPA disagrees with the
commenter’s view of the applicability of
section 110(l) to these actions on
infrastructure SIPs. EPA agrees that after
the Agency promulgates a new or
revised NAAQS, subsequent SIP
revisions should generally be evaluated
for compliance with section 110(l) in
light of the existence of any such new
or revised NAAQS. However, section
110(l) is more typically a concern with
respect to revisions to an existing SIP in
which there could be a relaxation of a
SIP approved provision in a way that
would interfere with attainment or
maintenance of the NAAQS or any other
applicable requirement of the CAA. In
this action, however, EPA is merely
approving a new submission that does
not purport to subtract from the existing
SIP as previously approved by the
Agency. These submissions are
intended to assure that the state’s SIP
meets the requirements with respect to
the specific NAAQS at issue, i.e., the
1997 8-hour ozone NAAQs and the 1997
PM2.5 NAAQS.
Comment 2: One commenter objected
to EPA’s proposed approval of the
submissions from several states on the
grounds that the SIPs of each state
contain impermissible provisions. The
commenter asserted that the states of
Wisconsin, Indiana, and Illinois have
SSM exemptions in regulations within
their existing SIPs that are in conflict
with EPA’s interpretation of the CAA.
The commenters argued that such
provisions are contrary to section 110,
and that until such provisions are
removed, the SIPs do not meet the
requirements of section 110.
Response 2: EPA disagrees with the
commenter’s apparent conclusion that if
a state’s existing SIP contains any
arguably illegal SSM provision, then
EPA cannot approve the infrastructure
SIP submission of that state. As
discussed in more detail in section II of
this final rulemaking, ‘‘What is the
scope of this final rulemaking?,’’ EPA
does not agree that action upon an
infrastructure SIP required by section
110(a)(1) and (2) requires that EPA
address any existing SSM provisions.
EPA shares the commenter’s concerns
that certain existing SSM provisions
may be contrary to the CAA and existing
Agency guidance, and that such
provisions can have an adverse impact
on air quality control efforts in a given
state. As stated in the proposal, EPA
plans to address such provisions in the
future, and in the meantime encourages
any state having a deficient SSM
provision to take steps to correct it as
soon as possible.
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Comment 3: The same commenter
also objected to EPA’s proposed
approvals on the grounds that the
existing SIPs of two states contain
another form of impermissible provision
within their regulations. The commenter
asserted that the states of Wisconsin and
Illinois have director’s discretion
provisions in their respective
regulations that allow the director of
their respective environmental
protection agencies to allow violations
of SIP approved emissions limits by
sources under certain circumstances.
Response 3: EPA also disagrees with
the commenter’s apparent conclusion
that if a state’s existing SIP contains any
arguably illegal director’s discretion or
director’s variance provision, then EPA
cannot approve the infrastructure SIP
submission of that state. As discussed in
more detail in section II of this final
rulemaking, ‘‘What is the scope of this
final rulemaking?,’’ EPA does not agree
that action upon an infrastructure SIP
required by section 110(a)(1) and (2)
requires that EPA address any existing
director’s discretion provisions.
EPA shares the commenter’s concerns
that certain existing director’s discretion
provisions may be contrary to the CAA
and existing Agency guidance, and that
such provisions can have an adverse
impact on air quality control efforts in
a given state. As stated in the proposal,
EPA plans to take action in the future
to address such provisions, and in the
meantime encourages any state having a
deficient director’s discretion or
director’s variance provision to take
steps to correct it as soon as possible.
Comment 4: One commenter objected
to EPA’s proposed approval because it
did not explain why the Agency was not
acting on the requirements of section
110(a)(2)(D)(i) in the context of the
infrastructure SIPs for the 1997 8-hour
ozone NAAQS and the 1997 PM2.5
NAAQS. The commenter argued that
EPA provided no basis for, and
professed its own lack of awareness of
a basis for, the exclusion of section
110(a)(2)(D)(i) from this action. The
commenter implied that because EPA
was not addressing section
110(a)(2)(D)(i) in this specific action, it
renders the action on the other elements
of section 110(a)(2) illegitimate.
Response 4: As previously explained,
EPA bifurcated action on section
110(a)(2)(D)(i) from the other applicable
infrastructure SIP requirements of
section 110(a)(2) for the 1997 8-hour
ozone NAAQS and the 1997 PM2.5
NAAQS. This approach dates back to
2005 when EPA entered into a consent
decree with Environmental Defense
Fund which required EPA to make
completeness findings with respect to
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section 110(a)(2)(D)(i) by March 15,
2005, and which required EPA to make
completeness findings with respect to
other applicable requirements of section
110(a)(2) by December 15, 2007, for the
1997 ozone NAAQS, and by October 5,
2008, for the 1997 PM2.5 NAAQS. The
findings notice that announced EPA’s
completeness determinations for the
infrastructure SIP submissions for the
1997 8-hour ozone NAAQS and the
1997 PM2.5 NAAQS clearly articulated
which elements of section 110(a)(2)
were relevant to those specific
submissions.16 In addition, EPA issued
two separate guidance documents
making recommendations for SIP
submissions to meet section
110(a)(2)(D)(i) and for the other
applicable requirements of section
110(a)(2) for these NAAQS. As a result,
states made one or more separate
submissions to address the substantive
requirements of section 110(a)(2)(D)(i)
that are separate from, and outside the
scope of, the SIP submissions that are at
issue in this action.
Comment 5: One commenter argued
that the air pollution enforcement
program in Indiana is not sufficient, and
implies that this is a basis for EPA not
to approve the infrastructure SIP
submission from the state. According to
the commenter, press reports indicate
that the State is not aggressively
enforcing air pollution regulations. In
support of its concerns, the commenter
referred to an unspecified letter from
EPA to IDEM in which EPA expressed
concerns about changes to the
enforcement program and funding of the
enforcement program in Indiana. In
addition, the commenter asserted that
IDEM has an enforcement policy that
requires a higher threshold for
enforcement showing adverse health
impacts as a result of a violation and
that this threshold is inconsistent with
protection of public health because of
the difficulty of proving causation with
respect to health impacts.
Response 5: EPA acknowledges that
concerns have been raised about
enforcement of air pollution programs
in Indiana, including concerns raised by
EPA in a June 24, 2009 letter to David
Pippen, Policy Director in the Office of
the Indiana Governor. However, EPA
disagrees that these concerns rise to the
level of demonstrating that the state’s
SIP is insufficient to meet the basic
requirements of section 110(a)(2)(A) and
(E) with respect to enforcement.
16 See, e.g., ‘‘Completeness Findings for Section
110(a) State Implementation Plans for the 8-hour
Ozone NAAQS, 73 FR 16205 (March 27, 2008). EPA
specifically noted that section 110(a)(2)(D)(i) was
being addressed in separate SIP actions. Id., 73 FR
at 16206, at footnote 1.
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The commenter’s primary objections
with respect to enforcement in Indiana
go to matters that are properly construed
as questions of ‘‘enforcement
discretion.’’ In other words, EPA
believes that certain decisions about
how best to direct enforcement
resources, what sources to investigate,
what types of violations warrant more
attention, etc., are largely matters of
discretion that a state may determine.17
EPA agrees that such enforcement
discretion, if taken to extremes, could
call into question whether a state was
effectively meeting its obligations under
the CAA. EPA does not see evidence of
that in this case. Similarly, questions of
the adequacy of resources for effective
enforcement are largely matters of state
discretion and would not be a basis for
disapproval action by EPA unless there
were clear evidence that the absence of
resources rose to the level that the state
was not capable of fulfilling its
obligations under the CAA. EPA does
not see evidence of that in this case. In
short, EPA does not see a basis for
disapproval of the infrastructure SIP
submissions by Indiana based on the
questions raised by the commenter.
EPA continues to monitor IDEM’s air
enforcement program through monthly
conference calls and reviews of
enforcement data submitted by IDEM.
EPA confirms that IDEM inspectors are
meeting EPA’s Compliance Monitoring
Strategy requirements and furthermore,
enforcement under IDEM’s reorganized
Compliance and Enforcement Branch
has shown an increase in the number of
enforcement actions timeliness of
resolution.
EPA concludes that, in the context of
acting on the infrastructure SIPs for the
1997 8-hour ozone and 1997 PM2.5
NAAQS, the air pollution enforcement
program in Indiana is consistent with
the basic requirements of section
110(a)(1) and (2) of the CAA. In the
event that concerns with respect to
adequate enforcement of the air
pollution program in the state arise in
the future, EPA could address such
concerns using appropriate authorities
under the CAA.
Comment 6: One commenter argued
that Illinois has state law provisions that
undermine enforcement of SIP
requirements. The commenter asserts
that the enforcement of air pollution
regulations in Illinois ‘‘is undermined
by a convoluted interpretation of State
17 It is important to note that the state’s exercise
of enforcement discretion in the case of a particular
violation does not affect potential enforcement by
EPA or other parties. Thus, the state’s policies with
respect to what types of violations warrant
enforcement action by the state do not necessarily
affect the enforceability of the SIP itself.
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law, including a lengthy appeals process
and ‘automatic stay’ provisions that are
applicable to Illinois Pollution Control
Board hearings.’’ According to the
commenter, permittees who challenge
their permits benefit by stays of the
challenged permit provisions that can
provide de facto variances from SIP
requirements. Implicitly, the commenter
argued that this issue would preclude
EPA’s approval of the infrastructure SIP
submission by Illinois for the 1997
8-hour ozone NAAQS and the 1997
PM2.5 NAAQS.
Response 6: EPA disagrees that the
issue raised by the commenter requires
EPA to disapprove the submission by
Illinois. EPA’s review of the
infrastructure SIP is intended to
evaluate whether the state’s SIP
contains the basic requirements for
implementation, maintenance, and
enforcement of the NAAQS in question.
The commenter’s concerns go to a very
specific issue resulting from
interpretations of state law. EPA
believes that this issue has already been
resolved with the state.
On March 3, 2011, EPA completed a
review of Illinois EPA’s enforcement
program in the context of the CAA. EPA
is committed to working with the State
to address any problems that were
documented in the review. With respect
to the automatic stay provisions in
Illinois, the Illinois State legislature
amended the Illinois Environmental
Protection Act (415 ILCS 5/) to address
this deficiency. The Governor of Illinois
signed this legislation on June 20, 2010.
This legislation eliminated the
‘automatic stay’ provisions noted by the
commenter; therefore, EPA believes that
all concerns with respect to this issue
have been resolved with respect to
approval of Illinois’ infrastructure SIP
for the 1997 8-hour ozone and 1997
PM2.5 NAAQS.
Comment 7: One commenter asserted
that Wisconsin is not implementing its
SIP sufficiently to comply with 40 CFR
51.160 and section 110(a) of the CAA.
The commenter took issue with three
aspects of Wisconsin’s permitting
program, particularly with respect to
modeling. First, the commenter alleged
that WDNR is effectively exempting
sources from demonstrating, through
modeling, that emissions from those
sources will not cause NAAQS
violations or prevent NAAQS
maintenance. In support of this claim,
the commenter claimed that ‘‘* * *
DNR’s ‘guidance’ 18 on modeling notes
that sources can avoid modeling in
18 The guidance that is being referred to can be
found here: https://dnr.wi.gov/air/pdf/
wdnrguidance_v71final.pdf
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nonattainment areas if they obtain
offsets or model below the SIL—despite
no SIP provision for Wisconsin allowing
such exemptions to Wis. Stat.
§ 285.63(1). Wisconsin DNR’s ‘guidance’
also exempts all operating permits for
sources in nonattainment areas from the
clea[r] requirement to demonstrate
compliance with (and non-prevention of
maintenance of) NAAQS as a condition
of permit approval for all operating
permits for all sources (not merely those
in attainment areas) in Wis. Stat.
§ 285.63(1).’’
Second, the commenter asserted that
WDNR has not been modeling
compliance with PM2.5 for registration
permits, and has supported the claim by
citing Wis. Stat. § 285.63. As evidence
for this claim, the commenter pointed to
a recent decision by a state
Administrative Law Judge concerning a
failure to model compliance with the
PM2.5 NAAQS. The commenter claimed
that the State continues to fail to do so.
Third, the commenter claimed that
WDNR does not model ozone impacts,
i.e., ozone NAAQS compliance, in
contravention of the SIP requirement to
demonstrate compliance with all
NAAQS as a condition of permit
issuance. Moreover, the commenter
further asserted that to its knowledge
‘‘DNR has never analyzed the impacts of
facilities on ozone during permitting—
as it is required to do pursuant to 42
U.S.C. 7410(a), 40 CFR 51.160, 51.166
and Wis. Stat. § 285.63(1). In fact, DNR’s
guidance states explicitly that it does
not model for ozone impacts.’’
Response 7: EPA disagrees with the
commenter’s conclusions on each point.
First, with respect to the claim that the
state’s guidance improperly ‘‘exempts’’
sources from modeling, EPA disagrees
with the commenter’s conclusions.
EPA’s regulations at 40 CFR part 51
section 160(a) and (b) require that states
have a procedure to establish whether a
source will, inter alia, interfere with
attainment or maintenance of the
NAAQS. The guidance cited by the
commenter is not inconsistent with this
requirement, and EPA’s regulations do
not preclude the appropriate use of
offsets or SILs as a means to determine
that there will not be such an impact.
Therefore, the commenter’s objections
do not indicate that the State’s
infrastructure SIP is inconsistent with
the applicable requirements of section
110(a)(1) and (2).
Second, the argument that the
commenter made with respect to the
decision of the Administrative Law
Judge is a matter of concern, but does
not establish that the State is failing to
conduct the necessary analysis in
connection with all permits. Moreover,
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the decision in question relates to the
minor source NSR program, and as
explained in section II, minor source
NSR is an issue that EPA considers
outside of the scope of infrastructure
SIP evaluations. Therefore, any
evaluation of Wisconsin’s minor source
NSR program will be conducted
independently of this rulemaking.
Finally, in response to the
commenter’s third point, the PSD
regulations require an ambient impact
analysis for ozone for proposed major
stationary sources and major
modifications to obtain a PSD permit
(40 CFR 51.166 (b)(23)(i), (i)(5)(i)(f), (k),
(l) and (m) and 40 CFR 52.21 (b)(23)(i),
(i)(5)(i)(f), (k), (l) and (m)), but not
necessarily modeling in all cases. The
regulations at 40 CFR 51.166(l) state that
for air quality models the SIP shall
provide for procedures which specify
that:
(1) All applications of air quality
modeling involved in this subpart shall
be based on the applicable models, data
bases, and other requirements specified
in Appendix W of this part (Guideline
on Air Quality Models).
(2) Where an air quality model
specified in Appendix W of this part
(Guideline on Air Quality Models) is
inappropriate, the model may be
modified or another model substituted.
Such a modification or substitution of a
model may be made on a case-by-case
basis or, where appropriate, on a generic
basis for a specific State program.
Written approval of the Administrator
must be obtained for any modification
or substitution. In addition, use of a
modified or substituted model must be
subject to notice and opportunity for
public comment under procedures set
forth in § 51.102.
These parts of 40 CFR Part 51 and 52
are the umbrella SIP components that
states have either adopted by reference
or the states have been approved and
delegated authority to incorporate the
PSD requirements of the CAA. As
discussed above, these Part 51 and 52
PSD provisions refer to 40 CFR Part 51,
Appendix W for the appropriate method
to utilize for the ambient impact
assessment. 40 CFR Part 51, Appendix
W is the Guideline on Air Quality
models and Section 1.0.a. states:
The guideline recommends air quality
modeling techniques that should be
applied to State Implementation Plan
(SIP) revisions for existing sources and
to new source review (NSR), including
prevention of significant deterioration
(PSD). {footnotes not included}
Applicable only to criteria air
pollutants, it is intended for use by EPA
Regional Offices in judging the
adequacy of modeling analyses
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performed by EPA, State and local
agencies, and by industry. * * * The
Guideline is not intended to be a
compendium of modeling techniques.
Rather, it should serve as a common
measure of acceptable technical analysis
when supported by sound scientific
judgment.
Appendix W Section 5.2.1. includes
the Guideline recommendations for
models to be utilized in assessing
ambient air quality impacts for ozone.
Specifically, Section 5.2.1.c states:
Estimating the Impact of Individual
Sources. Choice of methods used to
assess the impact of an individual
source depends on the nature of the
source and its emissions. Thus, model
users should consult with the Regional
Office to determine the most suitable
approach on a case-by-case basis
(subsection 3.2.2).
Appendix W Section 5.2.1.c provides
that the state and local permitting
authorities and permitting applicants
should work with the appropriate EPA
Regional Office on a case-by-case basis
to determine an adequate method for
performing an air quality analysis for
assessing ozone impacts. Due to the
complexity of modeling ozone and the
dependency on the regional
characteristics of atmospheric
conditions, EPA believes this is an
appropriate approach rather than
specifying a method for assessing single
source ozone impacts, which may not be
appropriate in all circumstances.
Instead, the choice of method ‘‘depends
on the nature of the source and its
emissions. Thus, model users should
consult with the Regional Office
* * *.’’ Appendix W Section 5.2.1.c.
Therefore, EPA continues to believe it is
appropriate for permitting authorities to
consult and work with EPA Regional
Offices as described in Appendix W,
including section 3.0.b and c, 3.2.2, and
3.3, to determine the appropriate
approach to assess ozone impacts for
each PSD required evaluation.
EPA has previously approved the
State’s PSD program.19 EPA observes
that Wisconsin routinely consults with
staff in the Region 5 Office to examine
the impacts of ozone from specific
sources on a case-by-case basis for
permitting purposes. Moreover, EPA
observes that the modeling guidance
referenced by the commenter is not an
approved part of Wisconsin’s SIP. Thus,
the commenter has not demonstrated
that we should not approve this
infrastructure SIP submission.
19 See, ‘‘Approval and Promulgation of
Implementation Plans; Wisconsin,’’ 64 FR 28745
(May 27, 1999).
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Comment 8: One commenter objected
to EPA’s proposed conditional approval
of the submissions of Indiana, Michigan,
and Ohio, with respect to section
110(a)(2)(C) based upon a commitment
of each state to update its respective SIP
to eliminate the use of PM10 as a
surrogate for PM2.5 in its PSD program.
The commenter argued that this use of
a conditional approval is inappropriate
because it would allow states to
continue to use a PM10 surrogacy policy
that EPA has explicitly determined may
not be used by states after May 16, 2011.
The commenter further asserted that
aside from the inappropriate use of
conditional approval, any approval of
SIPs that rely on the use of PM10 as a
surrogate for PM2.5 would be contrary to
the CAA for a variety of legal and
factual reasons.
Response 8: Based on an evaluation of
the concerns raised by the commenter,
EPA has concluded that a conditional
approval is not appropriate in these
specific facts and circumstances.
Congress has explicitly authorized EPA
to use conditional approvals under
section 110(k)(4), provided that states
make a commitment to adopt specific
measures by a date certain within one
year. As noted by the commenter, the
courts have confirmed that conditional
approvals are an available course of
action under section 110(k), but only if
the statutory conditions for such a
conditional approval have been met.
In this instance, EPA believed that the
states had made commitments to take
sufficiently ‘‘specific’’ actions within
the statutorily allotted time, by
committing to make a specified SIP
submission that would eliminate the use
of PM10 as a surrogate for PM2.5 by a
date certain.20 However, the
commenter’s concerns go not to whether
the commitments were specific enough,
but rather to whether a conditional
approval is appropriate at all, in light of
other EPA determinations with respect
to when states must cease using the
PM10 surrogate policy. EPA agrees that
its own determination with respect to
when states must cease using the PM10
20 The commenter cited Sierra Club v. EPA, 356
F.3d 296 (D.C. Cir. 2004), for the proposition that
EPA cannot use a section 110(k)(4) conditional
approval to approve plans that do ‘‘nothing more
than promise to do tomorrow what the Act requires
today.’’ EPA disagrees with this overbroad
contention. So long as the conditional approval
meets the statutory requirements of section
110(k)(4), EPA believes that it may be appropriate
to give a conditional approval to a state allowing
it to rectify a deficiency in a submission that would
otherwise constitute a basis for a disapproval, if the
state were not willing to commit to rectify the
deficiency within the requisite time. To read the
statute to prohibit use of section 110(k)(4) in such
circumstances, as the commenters advocate, would
render it a legal nullity.
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surrogacy policy is relevant to whether
a conditional approval is the correct
course of action. Section 110(k)(4)
provides that EPA ‘‘may’’ approve a SIP
conditionally, thereby indicating that
EPA has discretion to determine that a
given substantive issue is or is not
suitable for a conditional approval.
After considering the commenter’s
concerns, EPA has concluded that a
conditional approval is not appropriate
in these circumstances.
In order to address the commenter’s
substantive concern about continued
use of the PM10 surrogate policy after
May 16, 2011, EPA asked the states of
Indiana, Michigan, and Ohio to clarify
the facts with respect to their current
usage of the PM10 surrogate policy for
PSD permitting purposes. All three
states responded that they have the legal
authority under their respective PSD
regulations to regulate PM2.5 directly,
rather than PM10. Furthermore, the
states of Indiana, Michigan, and Ohio
confirmed that they have discontinued
reliance on the PM10 surrogate policy to
satisfy the PSD requirements for PM2.5.
Indiana, Michigan, and Ohio
transmitted letters affirming these
points on June 17, 2011, June 22, 2011,
and June 23, 2011, respectively.
EPA considers the letters from each
state to be a supplemental submission
that clarifies and updates the prior
infrastructure SIP submissions.
Therefore, EPA considers the facts as
represented by each state in its letter to
be a part of the basis for its evaluation
of the infrastructure SIPs. Because each
state has confirmed that it already has
the requisite legal authority to regulate
PM2.5 directly in its PSD program, and
because each state has confirmed that it
is no longer using the PM10 surrogate
policy, EPA concludes that there is no
need to use a conditional approval with
respect to section 110(a)(2)(C) for each
of these states. Therefore, in today’s
action EPA is simply approving the
submissions with respect to section
110(a)(2)(C). EPA believes that this
course of action will alleviate the
legitimate concerns of the commenters
with respect to any continued use of the
PM10 surrogacy policy in these states.
IV. What action is EPA taking?
For the reasons discussed in the
proposed rulemaking, as well as the
responses to comments received by EPA
during the public comment period, EPA
is taking final action to approve
elements of submissions from the EPA
Region 5 states certifying that the
current SIPs are sufficient to meet the
applicable infrastructure elements
under sections 110(a)(1) and (2) for the
1997 8-hour ozone NAAQS and the
1997 PM2.5 NAAQS. Notably, whereas
the proposed rulemaking contained
conditional approvals for Indiana,
Michigan, and Ohio with respect to
their satisfaction of section 110(a)(2)(C),
Sub-element 3: PM10 surrogate policy,
EPA’s final action for these three states
is an approval based on the discussion
in the response to Comment 8.
Based upon comments received
during the rulemaking, EPA is not
finalizing its proposed approval of the
submission from the State of Wisconsin
with respect to two narrow issues that
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Element
IL
A: Emission limits and other control measures .......................................
B: Ambient air quality monitoring and data system .................................
C1: Enforcement of SIP measures ..........................................................
C2: NOX as a precursor to ozone in PSD regulations ............................
C3: PM10 surrogate policy in PSD regulations ........................................
C4: NSR reform .......................................................................................
C5: GHG permitting in PSD regulations ..................................................
C6: Minor source NSR regulations ..........................................................
D(i): Interstate transport ...........................................................................
D(ii): Interstate and international pollution abatement .............................
E: Adequate resources ............................................................................
F: Stationary source monitoring system ..................................................
G: Emergency power ...............................................................................
H: Future SIP revisions ............................................................................
I: Nonattainment area plan or plan revisions under part D .....................
J1: Consultation with government officials ..............................................
J2: Public notification ...............................................................................
J3: PSD ....................................................................................................
J4: Visibility protection (Regional Haze) ..................................................
K: Air quality modeling and data ..............................................................
L: Permitting fees .....................................................................................
21 In addition to the information provided in this
table for the State of Wisconsin, EPA reiterates once
again that we are not finalizing any action with
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A
A
A
*
*
NA
*
NA
NA
A
A
A
A
A
NA
A
A
**
NA
A
A
IN
A
A
A
A
A
NA
A
NA
NA
A
A
A
A
A
NA
A
A
**
NA
A
A
respect to the definition of ‘‘major modification’’
related to fuel changes for certain sources in
Wisconsin. EPA will address this issue, as well as
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relate to section 110(a)(2)(C): (i) The
requirement for consideration of NOX as
a precursor to ozone; and (ii) the
definition of ‘‘major modification’’
related to fuel changes for certain
sources. EPA will address these issues
in a later action.
As detailed in section II of this final
action, EPA is affirming that there are
four substantive issues outside of the
scope of this rulemaking: SSM
provisions, director’s discretion
provisions, NSR Reform, and minor
source NSR. It should be noted,
however, that our proposed rulemaking
included discussion of various past EPA
approvals of minor source NSR program
submissions from Region 5 states in
connection with section 110(a)(2)(C).
After realizing the confusion
engendered by EPA’s statements about
certain issues that the Agency considers
outside the scope of action on
infrastructure SIPs, we want to clarify
that EPA does not consider the minor
source NSR program to be one that
states must address in their
infrastructure SIPs, nor one that EPA
must evaluate in approving such
infrastructure SIPs. Therefore, our final
action maintains that EPA is neither
approving nor disapproving the minor
source NSR programs in the states of
Illinois, Indiana, Ohio, Michigan,
Minnesota, and Wisconsin in the
context of infrastructure SIPs. Any
future evaluation of those minor source
NSR programs will be conducted
independently of today’s actions.
Specifically, these are EPA’s final
actions, by element of section 110(a)(2):
OH
A
A
A
A
A
NA
A
NA
NA
A
A
A
A
A
NA
A
A
**
NA
A
A
MI
A
A
A
A
A
NA
A
NA
NA
A
A
A
A
A
NA
A
A
**
NA
A
A
WI 21
MN
A
A
A
*
*
NA
*
NA
NA
A
A
A
A
A
NA
A
A
**
NA
A
A
A
A
A
NA
A
NA
A
NA
NA
A
A
A
A
A
NA
A
A
**
NA
A
A
Wisconsin’s PSD provisions that include NOX as a
precursor to ozone, in a separate action.
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Element
IL
M: Consultation and participation by affected local entities ....................
A
IN
A
OH
MI
A
WI 21
MN
A
A
A
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In the above table, the key is as follows:
A Approve.
NA No Action/Separate Rulemaking.
* Federally promulgated rules in place.
** Previously discussed in element (C).
V. Statutory and Executive Order
Reviews
Under the Clean Air Act, the
Administrator is required to approve a
SIP submission that complies with the
provisions of the Clean Air Act 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 Clean Air Act. Accordingly, this
action merely approves state law as
meeting Federal requirements and does
not impose additional requirements
beyond those imposed by state law. For
that reason, this action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Order 12866 (58 FR 51735,
October 4, 1993);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act
(5 U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the Clean Air Act;
and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
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health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this rule does not have
tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
not approved to apply in Indian country
located in the state, and EPA notes that
it will not impose substantial direct
costs on tribal governments or preempt
tribal law.
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the Clean
Air Act, petitions for judicial review of
this action must be filed in the United
States Court of Appeals for the
appropriate circuit by September 12,
2011. Filing a petition for
reconsideration by the Administrator of
this final rule does not affect the finality
of this action for the purposes of judicial
review nor does it extend the time
within which a petition for judicial
review may be filed, and shall not
postpone the effectiveness of such rule
or action. This action may not be
challenged later in proceedings to
enforce its requirements. (See section
307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Ozone, Particulate matter, Reporting
and recordkeeping requirements.
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Dated: June 30, 2011.
Susan Hedman,
Regional Administrator, Region 5.
40 CFR part 52, is amended as
follows:
PART 52—[AMENDED]
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart O—Illinois
2. Section 52.745 is added to read as
follows:
■
§ 52.745 Section 110(a)(2) Infrastructure
Requirements.
(a) Approval. In a December 12, 2007
submittal, Illinois certified that the State
has satisfied the infrastructure SIP
requirements of section 110(a)(2)(A)
through (C), (D)(ii), (E) through (H), and
(J) through (M) for the 1997 8-hour
ozone NAAQS. Illinois continues to
implement the Federally promulgated
rules for the prevention of significant
deterioration as they pertain to section
110(a)(2)(C) and (J).
(b) Approval. In a December 12, 2007
submittal, Illinois certified that the State
has satisfied the infrastructure SIP
requirements of section 110(a)(2)(A)
through (C), (D)(ii), (E) through (H), and
(J) through (M) for the 1997 PM2.5
NAAQS. Illinois continues to
implement the Federally promulgated
rules for the prevention of significant
deterioration as they pertain to section
110(a)(2)(C) and (J).
Subpart P—Indiana
3. In § 52.770, the table in paragraph
(e) is amended by adding entries in
alphabetical order for ‘‘Section 110(a)(2)
Infrastructure Requirements for the 1997
8-Hour Ozone NAAQS’’ and ‘‘Section
110(a)(2) Infrastructure Requirements
for the 1997 PM2.5 NAAQS’’ to read as
follows:
■
§ 52.770
*
Identification of plan.
*
*
(e) * * *
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EPA-APPROVED INDIANA NONREGULATORY AND QUASI-REGULATORY PROVISIONS
Title
Indiana date
EPA approval
Explanation
*
*
Section 110(a)(2) infrastructure requirements for the 1997 8-Hour
Ozone NAAQS.
*
*
*
12/7/2007, 9/19/2008, 3/23/2011, 7/13/2011, [Insert page number
and 4/7/2011.
where the document begins].
Section 110(a)(2) infrastructure requirements for the 1997 PM2.5
NAAQS.
12/7/2007, 9/19/2008, 3/23/2011,
and 4/7/2011.
*
*
*
Subpart X—Michigan
4. In § 52.1170, the table in paragraph
(e) is amended by adding entries at the
end of the table for ‘‘Section 110(a)(2)
■
7/13/2011, [Insert page number
where the document begins].
*
*
*
This action addresses the following
CAA
elements:
110(a)(2)(A), (B), (C), (D)(ii),
(E), (F), (G), (H), (J), (K), (L),
and (M).
This action addresses the following
CAA
elements:
110(a)(2)(A), (B), (C), (D)(ii),
(E), (F), (G), (H), (J), (K), (L),
and (M).
*
Infrastructure Requirements for the 1997
8-Hour Ozone NAAQS’’ and ‘‘Section
110(a)(2) Infrastructure Requirements
for the 1997 PM2.5 NAAQS’’ to read as
follows:
*
§ 52.1170
*
*
Identification of plan.
*
*
(e) * * *
*
*
EPA-APPROVED MICHIGAN NONREGULATORY AND QUASI-REGULATORY PROVISIONS
Name of nonregulatory
SIP provision
Applicable geographic
or nonattainment area
*
Section 110(a)(2) Infrastructure Requirements for the 1997
8-Hour Ozone
NAAQS.
Section 110(a)(2) Infrastructure Requirements for the 1997
PM2.5 NAAQS.
*
Statewide ...................
*
*
*
12/6/07, 7/19/08, and
7/13/11, [Insert page
4/6/11.
number where the
document begins].
*
*
This action addresses the following CAA elements: 110(a)(2)(A), (B), (C), (D)(ii), (E),
(F), (G), (H), (J), (K), (L), and (M).
Statewide ...................
12/6/07, 7/19/08, and
4/6/11.
This action addresses the following CAA elements: 110(a)(2)(A), (B), (C), (D)(ii), (E),
(F), (G), (H), (J), (K), (L), and (M).
Subpart Y—Minnesota
5. In § 52.1220, the table in paragraph
(e) is amended by adding entries in
alphabetical order for ‘‘Section 110(a)(2)
■
State submittal date
EPA approval date
Comments
7/13/11, [Insert page
number where the
document begins].
Infrastructure Requirements for the 1997
8-Hour Ozone NAAQS’’ and ‘‘Section
110(a)(2) Infrastructure Requirements
for the 1997 PM2.5 NAAQS’’ to read as
follows:
§ 52.1220
*
Identification of plan.
*
*
(e) * * *
*
*
EPA-APPROVED MINNESOTA NONREGULATORY PROVISIONS
Name of nonregulatory
SIP provision
Applicable geographic
or nonattainment area
State submittal
date/effective
date
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*
Section 110(a)(2) Infrastructure Requirements for the 1997 8Hour Ozone NAAQS.
*
*
Statewide ...................
11/29/07
Section 110(a)(2) Infrastructure Requirements for the 1997
PM2.5 NAAQS.
Statewide ...................
11/29/07
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EPA approved date
*
7/13/11, [Insert page
number where the
document begins].
7/13/11, [Insert page
number where the
document begins].
Fmt 4700
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Comments
*
*
*
This action addresses the following CAA elements: 110(a)(2)(A), (B), (C), (D)(ii), (E), (F),
(G), (H), (J), (K), (L), and (M). Minnesota continues to implement the Federally promulgated
rules for the prevention of significant deterioration as they pertain to section 110(a)(2)(C)
and (J).
This action addresses the following CAA elements: 110(a)(2)(A), (B), (C), (D)(ii), (E), (F),
(G), (H), (J), (K), (L), and (M). Minnesota continues to implement the Federally promulgated
rules for the prevention of significant deterioration as they pertain to section 110(a)(2)(C)
and (J).
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EPA-APPROVED MINNESOTA NONREGULATORY PROVISIONS—Continued
Name of nonregulatory
SIP provision
Applicable geographic
or nonattainment area
*
*
State submittal
date/effective
date
*
EPA approved date
*
Comments
*
■
6. Section 52.1891 is added to read as
follows:
§ 52.1891 Section 110(a)(2) Infrastructure
Requirements.
requirement for consideration of NOx as
a precursor to ozone; and the definition
of ‘‘major modification’’ related to fuel
changes for certain sources. EPA will
address these issues in a later action.
[FR Doc. 2011–17463 Filed 7–12–11; 8:45 am]
Subpart KK—Ohio
(a) Approval. In a December 5, 2007
submittal, supplemented on April 7,
2011, Ohio certified that the State has
satisfied the infrastructure SIP
requirements of section 110(a)(2)(A)
through (C), (D)(ii), (E) through (H), and
(J) through (M) for the 1997 8-hour
ozone NAAQS.
(b) Approval. In a December 5, 2007
submittal, supplemented on April 7,
2011, Ohio certified that the State has
satisfied the infrastructure SIP
requirements of section 110(a)(2)(A)
through (C), (D)(ii), (E) through (H), and
(J) through (M) for the 1997 PM2.5
NAAQS.
Subpart YY—Wisconsin
7. Section 52.2591 is added to read as
follows:
■
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§ 52.2591 Section 110(a)(2) Infrastructure
Requirements.
(a) Approval. In a December 12, 2007
submittal, supplemented on January 24,
2011 and March 28, 2011, Wisconsin
certified that the State has satisfied the
infrastructure SIP requirements of
section 110(a)(2)(A) through (C), (D)(ii),
(E) through (H), and (J) through (M) for
the 1997 8-hour ozone NAAQS. EPA is
not finalizing its proposed approval of
the submission from the State of
Wisconsin with respect to two narrow
issues that relate to section 110(a)(2)(C):
The requirement for consideration of
NOx as a precursor to ozone; and (ii) the
definition of ‘‘major modification’’
related to fuel changes for certain
sources. EPA will address these issues
in a later action.
(b) Approval. In a December 12, 2007
submittal, supplemented on January 24,
2011 and March 28, 2011, Wisconsin
certified that the State has satisfied the
infrastructure SIP requirements of
section 110(a)(2)(A) through (C), (D)(ii),
(E) through (H), and (J) through (M) for
the 1997 PM2.5 NAAQS. EPA is not
finalizing its proposed approval of the
submission from the State of Wisconsin
with respect to two narrow issues that
relate to section 110(a)(2)(C): The
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BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R05–OAR–2010–0036; FRL–9430–9]
Approval and Promulgation of Air
Quality Implementation Plans; Ohio;
Volatile Organic Compound Reinforced
Plastic Composites Production
Operations Rule
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
EPA is approving into the
Ohio State Implementation Plan (SIP) a
new rule for the control of volatile
organic compound (VOC) emissions
from reinforced plastic composites
production operations. This rule applies
to any facility that has reinforced plastic
composites production operations. This
rule is approvable because it satisfies
the requirements of the Clean Air Act
(CAA). EPA proposed this rule for
approval on January 27, 2011, and
received three sets of comments.
DATES: This final rule is effective on
August 12, 2011.
ADDRESSES: EPA has established a
docket for this action under Docket ID
EPA–R05–OAR–2010–0036. All
documents in the docket are listed on
the https://www.regulations.gov Web
site. Although listed in the index, some
information is not publicly available,
i.e., Confidential Business Information
(CBI) or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available either electronically through
https://www.regulations.gov or in hard
copy at the Environmental Protection
Agency, Region 5, Air and Radiation
Division, 77 West Jackson Boulevard,
SUMMARY:
PO 00000
Frm 00046
Fmt 4700
Sfmt 4700
*
*
Chicago, Illinois 60604. This facility is
open from 8:30 a.m. to 4:30 p.m.,
Monday through Friday, excluding
Federal holidays. We recommend that
you telephone Steven Rosenthal,
Environmental Engineer, at (312) 886–
6052 before visiting the Region 5 office.
FOR FURTHER INFORMATION CONTACT:
Steven Rosenthal, Environmental
Engineer, Air Planning and
Maintenance Section, Air Programs
Branch (AR–18J), Environmental
Protection Agency, Region 5, 77 West
Jackson Boulevard, Chicago, Illinois
60604, (312) 886–6052.
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 public comments were received on
the proposed approval and what is EPA’s
response?
II. What action is EPA taking today and what
is the basis of this action?
III. Statutory and Executive Order Reviews
I. What public comments were received
on the proposed approval and what is
EPA’s response?
EPA received three comments. A
discussion of each follows:
(A) An anonymous comment was in
support of EPA’s approval of Ohio’s
rule.
(B) The Aquatic Company commented
that it is concerned that the maximum
achievable control technology (MACT)
limits in subpart WWWW of 40 CFR
part 63, for Reinforced Plastic
Composites Production, underestimate
emissions generated by tub/shower
manufacturers and notes that EPA is
currently working to correct these and
other issues with subpart WWWW. The
Aquatic Company opposes any rule
which is tied to the subpart WWWW
regulations. This comment is not
directly relevant to this rulemaking
because it is mainly a complaint against
the MACT and provides no suggested
revisions to Ohio’s rule.
(C) Premix, Inc. commented that it
objects to the 25 tons VOC per year
applicability cutoff for sheet mold
compound (SMC) machines. Premix has
successfully, and cost-effectively,
controlled VOCs from its SMC machines
using its Tight Wet Area Enclosures and
a small Regenerative Thermal Oxidizer.
E:\FR\FM\13JYR1.SGM
13JYR1
]]>Agencies
[Federal Register Volume 76, Number 134 (Wednesday, July 13, 2011)]
[Rules and Regulations]
[Pages 41075-41086]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-17463]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2007-1179; FRL-9436-7]
Approval and Promulgation of Air Quality Implementation Plans;
Illinois; Indiana; Michigan; Minnesota; Ohio; Wisconsin; Infrastructure
SIP Requirements for the 1997 8-Hour Ozone and PM2.5 National Ambient
Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is taking final action to approve elements of submissions
by Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin
regarding the
[[Page 41076]]
infrastructure requirements of sections 110(a)(1) and (2) of the Clean
Air Act (CAA) for the 1997 eight-hour ground level ozone national
ambient air quality standards (1997 8-hour ozone NAAQS) and 1997 fine
particle national ambient air quality standards (1997 PM2.5
NAAQS). The infrastructure requirements are designed to ensure that the
structural components of each state's air quality management program
are adequate to meet the state's responsibilities under the CAA. The
proposed rulemaking was published on April 28, 2011. During the comment
period, which ended on May 31, 2011, EPA received three comment letters
raising a number of concerns, which will be addressed in this final
action.
DATES: This final rule is effective on August 12, 2011.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R05-OAR-2007-1179. All documents in the docket are listed on
the https://www.regulations.gov Web site. Although listed in the index,
some information is not publicly available, i.e., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the Internet and will be publicly available only in hard
copy form. Publicly available docket materials are available either
electronically through https://www.regulations.gov or in hard copy at
the Environmental Protection Agency, Region 5, Air and Radiation
Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This
facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday,
excluding Federal holidays. We recommend that you telephone Andy Chang
at (312) 886-0258 before visiting the Region 5 office.
FOR FURTHER INFORMATION CONTACT: Andy Chang, Environmental Engineer,
Attainment Planning and Maintenance Section, Air Programs Branch (AR-
18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson
Boulevard, Chicago, Illinois 60604, (312) 886-0258, chang.andy@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. This SUPPLEMENTARY INFORMATION
section is arranged as follows:
I. What is the background for this action?
II. What is the scope of this final rulemaking?
III. What is our response to comments received on the notice of
proposed rulemaking?
IV. What action is EPA taking?
V. Statutory and Executive Order Reviews
I. What is the background for this action?
This final rulemaking addresses state submittals from each state
(and appropriate state agency) in EPA Region 5: Illinois Environmental
Protection Agency (Illinois EPA); Indiana Department of Environmental
Management (IDEM); Michigan Department of Environmental Quality (MDEQ);
Minnesota Pollution Control Agency (MPCA); Ohio Environmental
Protection Agency (Ohio EPA); and Wisconsin Department of Natural
Resources Bureau of Air Management (WDNR). At the time of our proposed
rulemaking, each state had made submittals on the following dates:
Illinois--December 12, 2007; Indiana--December 7, 2007, and
supplemented on September 19, 2008, March 23, 2011, and April 7, 2011;
Michigan--December 6, 2007, and supplemented on September 19, 2008 and
April 6, 2011; Minnesota--November 29, 2007; Ohio--December 5, 2007,
and supplemented on April 7, 2011; and, Wisconsin--December 12, 2007,
and supplemented on January 24, 2011 and March 28, 2011. The
submissions from each state, and the supplements thereto, may be found
in the docket for this action.
Under sections 110(a)(1) and (2) of the CAA, and implementing EPA
policy, the states were required to submit either revisions to their
State Implementation Plans (SIPs) necessary to provide for
implementation, maintenance, and enforcement of the 1997 8-hour ozone
NAAQS or the 1997 PM2.5 NAAQS, or certifications that their
existing SIPs for ozone and particulate matter already met those basic
requirements. The statute requires that states make these submissions
within three years after the promulgation of new or revised NAAQS.
However, intervening litigation over the 1997 8-hour ozone NAAQS and
the 1997 PM2.5 NAAQS created uncertainty about how states
were to proceed.\1\ Accordingly, both EPA and the states were delayed
in addressing these basic SIP requirements.
---------------------------------------------------------------------------
\1\ See, e.g., Whitman v. American Trucking Associations, Inc.,
531 U.S. 457 (2001).
---------------------------------------------------------------------------
In a consent decree with Earth Justice, EPA agreed to make
completeness findings with respect to these SIP submissions. Pursuant
to this consent decree, EPA published completeness findings for all
states for the 1997 8-hour ozone NAAQS on March 27, 2008, and for all
states for the 1997 PM2.5 NAAQS on October 22, 2008.
On October 2, 2007, EPA issued a guidance document entitled
``Guidance on SIP Elements Required Under Sections 110(a)(1) and (2)
for the 1997 8-hour Ozone and PM2.5 National Ambient Air
Quality Standards,'' making recommendations to states concerning these
SIP submissions (the 2007 Guidance). Within the 2007 Guidance, EPA gave
general guidance relevant to matters such as the timing and content of
the submissions.
EPA published its proposed action on the states' submissions on
April 28, 2011. During the comment period on this proposal, EPA
received three comment letters raising a number of concerns with
respect to various issues for one or more states addressed in the
proposal. EPA addresses the significant comments in this final action.
EPA received comments concerning the proposed approval of the
submission from the State of Wisconsin that require further evaluation.
Accordingly, today EPA is not finalizing its proposed approval of that
submission for section 110(a)(2)(C) with respect to two narrow issues:
(i) The requirement for consideration of oxides of nitrogen
(NOX); and (ii) the definition of ``major modification''
related to fuel changes for certain sources. EPA will address these
issues in a later action.
II. What is the scope of this final rulemaking?
EPA is currently acting upon SIPs that address the infrastructure
requirements of CAA section 110(a)(1) and (2) for ozone and
PM2.5 NAAQS for various states across the country.
Commenters on EPA's recent proposals for some States raised concerns
about EPA statements that it was not addressing certain substantive
issues in the context of acting on the infrastructure SIP
submissions.\2\ The commenters specifically raised concerns involving
provisions in existing SIPs and with EPA's statements that it would
address two issues separately and not as part of actions on the
infrastructure SIP submissions: (i) Existing provisions related to
excess emissions during periods of start-up, shutdown, or malfunction
at sources, that may be contrary to the CAA and EPA's policies
addressing such excess emissions (``SSM''); and (ii) existing
provisions related to ``director's variance'' or ``director's
discretion'' that purport to permit revisions to SIP approved emissions
limits with limited public process or without requiring further
approval by EPA, that may be contrary to the CAA (``director's
discretion''). EPA notes that there are two other
[[Page 41077]]
substantive issues for which EPA likewise stated that it would address
the issues separately: (i) Existing provisions for minor source new
source review programs that may be inconsistent with the requirements
of the CAA and EPA's regulations that pertain to such programs (``minor
source NSR''); and (ii) existing provisions for prevention of
significant deterioration (PSD) programs that may be inconsistent with
current requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR
80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007)
(``NSR Reform''). In light of the comments, EPA now believes that its
statements in various proposed actions on infrastructure SIPs with
respect to these four individual issues should be explained in greater
depth with respect to these issues.
---------------------------------------------------------------------------
\2\ See, Comments of Midwest Environmental Defense Center, dated
May 31, 2011. Docket EPA-R05-OAR-2007-1179 (adverse
comments on proposals for three states in Region 5).
---------------------------------------------------------------------------
EPA intended the statements in the proposals concerning these four
issues merely to be informational, and to provide general notice of the
potential existence of provisions within the existing SIPs of some
states that might require future corrective action. EPA did not want
states, regulated entities, or members of the public to be under the
misconception that the Agency's approval of the infrastructure SIP
submission of a given state should be interpreted as a reapproval of
certain types of provisions that might exist buried in the larger
existing SIP for such state. Thus, for example, EPA explicitly noted
that the Agency believes that some states may have existing SIP
approved SSM provisions that are contrary to the CAA and EPA policy,
but that ``in this rulemaking, EPA is not proposing to approve or
disapprove any existing State provisions with regard to excess
emissions during SSM of operations at facilities.'' EPA further
explained, for informational purposes, that ``EPA plans to address such
State regulations in the future.'' EPA made similar statements, for
similar reasons, with respect to the director's discretion, minor
source NSR, and NSR Reform issues. EPA's objective was to make clear
that approval of an infrastructure SIP for these ozone and
PM2.5 NAAQS should not be construed as explicit or implicit
reapproval of any existing provisions that relate to these four
substantive issues.
Unfortunately, the commenters and others evidently interpreted
these statements to mean that EPA considered action upon the SSM
provisions and the other three substantive issues to be integral parts
of acting on an infrastructure SIP submission, and therefore that EPA
was merely postponing taking final action on the issue in the context
of the infrastructure SIPs. This was not EPA's intention. To the
contrary, EPA only meant to convey its awareness of the potential for
certain types of deficiencies in existing SIPs, and to prevent any
misunderstanding that it was reapproving any such existing provisions.
EPA's intention was to convey its position that the statute does not
require that infrastructure SIPs address these specific substantive
issues in existing SIPs and that these issues may be dealt with
separately, outside the context of acting on the infrastructure SIP
submission of a state. To be clear, EPA did not mean to imply that it
was not taking a full final agency action on the infrastructure SIP
submission with respect to any substantive issue that EPA considers to
be a required part of acting on such submissions under section 110(k)
or under section 110(c). Given the confusion evidently resulting from
EPA's statements, however, we want to explain more fully the Agency's
reasons for concluding that these four potential substantive issues in
existing SIPs may be addressed separately.
The requirement for the SIP submissions at issue arises out of CAA
section 110(a)(1). That provision requires that states must make a SIP
submission ``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
that these SIPS are to provide for the ``implementation, maintenance,
and enforcement'' of such NAAQS. Section 110(a)(2) includes a list of
specific elements that ``[e]ach such plan'' submission must meet. EPA
has historically referred to these particular submissions that states
must make after the promulgation of a new or revised NAAQS as
``infrastructure SIPs.'' This specific term does not appear in the
statute, but EPA uses the term to distinguish this particular type of
SIP submission designed to address basic structural requirements of a
SIP from other types of SIP submissions designed to address other
different requirements, such as ``nonattainment SIP'' submissions
required to address the nonattainment planning requirements of part D,
``regional haze SIP'' submissions required to address the visibility
protection requirements of CAA section 169A, new source review
permitting program submissions required to address the requirements of
part D, and a host of other specific types of SIP submissions that
address other specific matters.
Although section 110(a)(1) addresses the timing and general
requirements for these infrastructure SIPs, and section 110(a)(2)
provides more details concerning the required contents of these
infrastructure SIPs, EPA believes that many of the specific statutory
provisions are facially ambiguous. In particular, the list of required
elements provided in section 110(a)(2) contains a wide variety of
disparate provisions, some of which pertain to required legal
authority, some of which pertain to required substantive provisions,
and some of which pertain to requirements for both authority and
substantive provisions.\3\ Some of the elements of section 110(a)(2)
are relatively straightforward, but others clearly require
interpretation by EPA through rulemaking, or recommendations through
guidance, in order to give specific meaning for a particular NAAQS.\4\
---------------------------------------------------------------------------
\3\ For example, section 110(a)(2)(E) provides that states must
provide assurances that they have adequate legal authority under
state and local law to carry out the SIP; section 110(a)(2)(C)
provides that states must have a substantive program to address
certain sources as required by part C of the CAA; section
110(a)(2)(G) provides that states must have both legal authority to
address emergencies and substantive contingency plans in the event
of such an emergency.
\4\ For example, section 110(a)(2)(D)(i) requires EPA to be sure
that each state's SIP contains adequate provisions to prevent
significant contribution to nonattainment of the NAAQS in other
states. This provision contains numerous terms that require
substantial rulemaking by EPA in order to determine such basic
points as what constitutes significant contribution. See, e.g.,
``Rule To Reduce Interstate Transport of Fine Particulate Matter and
Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program;
Revisions to the NOX SIP Call; Final Rule,'' 70 FR 25162
(May 12, 2005) (defining, among other things, the phrase
``contribute significantly to nonattainment'').
---------------------------------------------------------------------------
Notwithstanding that section 110(a)(2) states that ``each'' SIP
submission must meet the list of requirements therein, EPA has long
noted that this literal reading of the statute is internally
inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment
SIP requirements that could not be met on the schedule provided for
these SIP submissions in section 110(a)(1).\5\ This illustrates that
EPA must determine which provisions of section 110(a)(2) may be
applicable for a given infrastructure SIP submission. Similarly, EPA
has previously decided that it could take action on different parts of
the larger, general ``infrastructure SIP'' for a given NAAQS without
concurrent action on all subsections, such as section 110(a)(2)(D)(i),
because the Agency bifurcated the action on these latter ``interstate
transport'' provisions within
[[Page 41078]]
section 110(a)(2) and worked with states to address each of the four
prongs of section 110(a)(2)(D)(i) with substantive administrative
actions proceeding on different tracks with different schedules.\6\
This illustrates that EPA may conclude that subdividing the applicable
requirements of section 110(a)(2) into separate SIP actions may
sometimes be appropriate for a given NAAQS where a specific substantive
action is necessitated, beyond a mere submission addressing basic
structural aspects of the state's SIP. Finally, EPA notes that not
every element of section 110(a)(2) would be relevant, or as relevant,
or relevant in the same way, for each new or revised NAAQS and the
attendant infrastructure SIP submission for that NAAQS. For example,
the monitoring requirements that might be necessary for purposes of
section 110(a)(2)(B) for one NAAQS could be very different than what
might be necessary for a different pollutant. Thus, the content of an
infrastructure SIP submission to meet this element from a state might
be very different for an entirely new NAAQS, versus a minor revision to
an existing NAAQS.\7\
---------------------------------------------------------------------------
\5\ See, e.g., Id., 70 FR 25162, at 63-65 (May 12, 2005)
(explaining relationship between timing requirement of section
110(a)(2)(D) versus section 110(a)(2)(I)).
\6\ EPA issued separate guidance to states with respect to SIP
submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and
1997 PM2.5 NAAQS. See, ``Guidance for State
Implementation Plan (SIP) Submissions to Meet Current Outstanding
Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and
PM2.5 National Ambient Air Quality Standards,'' from
William T. Harnett, Director Air Quality Policy Division OAQPS, to
Regional Air Division Director, Regions I-X, dated August 15, 2006.
\7\ For example, implementation of the 1997 PM2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of that new indicator species for the new NAAQS.
---------------------------------------------------------------------------
Similarly, EPA notes that other types of SIP submissions required
under the statute also must meet the requirements of section 110(a)(2),
and this also demonstrates the need to identify the applicable elements
for other SIP submissions. For example, nonattainment SIPs required by
part D likewise have to meet the relevant subsections of section
110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear
that nonattainment SIPs would not need to meet the portion of section
110(a)(2)(C) that pertains to part C, i.e., the PSD requirements
applicable in attainment areas. Nonattainment SIPs required by part D
also would not need to address the requirements of section 110(a)(2)(G)
with respect to emergency episodes, as such requirements would not be
limited to nonattainment areas. As this example illustrates, each type
of SIP submission may implicate some subsections of section 110(a)(2)
and not others.
Given the potential for ambiguity of the statutory language of
section 110(a)(1) and (2), EPA believes that it is appropriate for EPA
to interpret that language in the context of acting on the
infrastructure SIPs for a given NAAQS. Because of the inherent
ambiguity of the list of requirements in section 110(a)(2), EPA has
adopted an approach in which it reviews infrastructure SIPs against
this list of elements ``as applicable.'' In other words, EPA assumes
that Congress could not have intended that each and every SIP
submission, regardless of the purpose of the submission or the NAAQS in
question, would meet each of the requirements, or meet each of them in
the same way. EPA elected to use guidance to make recommendations for
infrastructure SIPs for these NAAQS.
On October 2, 2007, EPA issued guidance making recommendations for
the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS
and the 1997 PM2.5 NAAQS.\8\ Within this guidance document,
EPA described the duty of states to make these submissions to meet what
the Agency characterized as the ``infrastructure'' elements for SIPs,
which it further described as the ``basic SIP requirements, including
emissions inventories, monitoring, and modeling to assure attainment
and maintenance of the standards.'' \9\ As further identification of
these basic structural SIP requirements, ``attachment A'' to the
guidance document included a short description of the various elements
of section 110(a)(2) and additional information about the types of
issues that EPA considered germane in the context of such
infrastructure SIPs. EPA emphasized that the description of the basic
requirements listed on attachment A was not intended ``to constitute an
interpretation of'' the requirements, and was merely a ``brief
description of the required elements.'' \10\ EPA also stated its belief
that with one exception, these requirements were ``relatively self
explanatory, and past experience with SIPs for other NAAQS should
enable States to meet these requirements with assistance from EPA
Regions.'' \11\ For the one exception to that general assumption,
however, i.e., how states should proceed with respect to the
requirements of section 110(a)(2)(G) for the 1997 PM2.5
NAAQS, EPA gave much more specific recommendations. But for other
infrastructure SIP submittals, and for certain elements of the
submittals for the 1997 PM2.5 NAAQS, EPA assumed that each
state would work with its corresponding EPA regional office to refine
the scope of a state's submittal based on an assessment of how the
requirements of section 110(a)(2) should reasonably apply to the basic
structure of the State's SIP for the NAAQS in question.
---------------------------------------------------------------------------
\8\ See, ``Guidance on SIP Elements Required Under Section
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5
National Ambient Air Quality Standards,'' from William T. Harnett,
Director Air Quality Policy Division, to Air Division Directors,
Regions I-X, dated October 2, 2007 (the ``2007 Guidance''). EPA
issued comparable guidance for the 2006 PM2.5 NAAQS
entitled ``Guidance on SIP Elements Required Under Sections
110(a)(1) and (2) for the 2006 24-Hour Fine Particle
(PM2.5) National Ambient Air Quality Standards (NAAQS),''
from William T, Harnett, Director Air Quality Policy Division, to
Regional Air Division Directors, Regions I-X, dated September 25,
2009 (the ``2009 Guidance'').
\9\ Id., at page 2.
\10\ Id., at attachment A, page 1.
\11\ Id., at page 4. In retrospect, the concerns raised by
commenters with respect to EPA's approach to some substantive issues
indicates that the statute is not so ``self explanatory,'' and
indeed is sufficiently ambiguous that EPA needs to interpret it in
order to explain why these substantive issues do not need to be
addressed in the context of infrastructure SIPs and may be addressed
at other times and by other means.
---------------------------------------------------------------------------
Significantly, the 2007 Guidance did not explicitly refer to the
SSM, director's discretion, minor source NSR, or NSR Reform issues as
among specific substantive issues EPA expected states to address in the
context of the infrastructure SIPs, nor did EPA give any more specific
recommendations with respect to how states might address such issues
even if they elected to do so. The SSM and director's discretion issues
implicate section 110(a)(2)(A), and the minor source NSR and NSR Reform
issues implicate section 110(a)(2)(C). In the 2007 Guidance, however,
EPA did not indicate to states that it intended to interpret these
provisions as requiring a substantive submission to address these
specific issues in the context of the infrastructure SIPs for these
NAAQS. Instead, EPA's 2007 Guidance merely indicated its belief that
the states should make submissions in which they established that they
have the basic SIP structure necessary to implement, maintain, and
enforce the NAAQS. EPA believes that states can establish that they
have the basic SIP structure, notwithstanding that there may be
potential deficiencies within the existing SIP. Thus, EPA's proposals
mentioned these issues not because the Agency considers them issues
that must be addressed in the context of an infrastructure SIP as
required by section 110(a)(1) and (2), but rather because EPA wanted to
be clear that it considers these potential existing SIP problems as
separate from the pending infrastructure SIP actions.
[[Page 41079]]
EPA believes that this approach to the infrastructure SIP
requirement is reasonable, because it would not be feasible to read
section 110(a)(1) and (2) to require a top to bottom, stem to stern,
review of each and every provision of an existing SIP merely for
purposes of assuring that the state in question has the basic
structural elements for a functioning SIP for a new or revised NAAQS.
Because SIPs have grown by accretion over the decades as statutory and
regulatory requirements under the CAA have evolved, they may include
some outmoded provisions and historical artifacts that, while not fully
up to date, nevertheless may not pose a significant problem for the
purposes of ``implementation, maintenance, and enforcement'' of a new
or revised NAAQS when EPA considers the overall effectiveness of the
SIP. To the contrary, EPA believes that a better approach is for EPA to
determine which specific SIP elements from section 110(a)(2) are
applicable to an infrastructure SIP for a given NAAQS, and to focus
attention on those elements that are most likely to need a specific SIP
revision in light of the new or revised NAAQS. Thus, for example, EPA's
2007 Guidance specifically directed states to focus on the requirements
of section 110(a)(2)(G) for the 1997 PM2.5 NAAQS because of
the absence of underlying EPA regulations for emergency episodes for
this NAAQS and an anticipated absence of relevant provisions in
existing SIPs.
Finally, EPA believes that its approach is a reasonable reading of
section 110(a)(1) and (2) because the statute provides other avenues
and mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow the Agency to take appropriate
tailored action, depending upon the nature and severity of the alleged
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP
call'' whenever the Agency determines that a state's SIP is
substantially inadequate to attain or maintain the NAAQS, to mitigate
interstate transport, or otherwise to comply with the CAA.\12\ Section
110(k)(6) authorizes EPA to correct errors in past actions, such as
past approvals of SIP submissions.\13\ Significantly, EPA's
determination that an action on the infrastructure SIP is not the
appropriate time and place to address all potential existing SIP
problems does not preclude the Agency's subsequent reliance on
provisions in section 110(a)(2) as part of the basis for action at a
later time. For example, although it may not be appropriate to require
a state to eliminate all existing inappropriate director's discretion
provisions in the course of acting on the infrastructure SIP, EPA
believes that section 110(a)(2)(A) may be among the statutory bases
that the Agency cites in the course of addressing the issue in a
subsequent action.\14\
---------------------------------------------------------------------------
\12\ EPA has recently issued a SIP call to rectify a specific
SIP deficiency related to the SSM issue. See, ``Finding of
Substantial Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revision,'' 74 FR 21639 (April 18, 2011).
\13\ EPA has recently utilized this authority to correct errors
in past actions on SIP submissions related to PSD programs. See,
``Limitation of Approval of Prevention of Significant Deterioration
Provisions Concerning Greenhouse Gas Emitting-Sources in State
Implementation Plans; Final Rule,'' 75 FR 82,536 (December 30,
2010). EPA has previously used its authority under CAA 110(k)(6) to
remove numerous other SIP provisions that the Agency determined it
had approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62
FR 34641 (June 27, 1997) (corrections to American Samoa, Arizona,
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16,
2004) (corrections to California SIP); and 74 FR 57051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
\14\ EPA has recently disapproved a SIP submission from Colorado
on the grounds that it would have included a director's discretion
provision inconsistent with CAA requirements, including section
110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 2010)
(proposed disapproval of director's discretion provisions); 76 FR
4540 (Jan. 26, 2011) (final disapproval of such provisions).
---------------------------------------------------------------------------
III. What is our response to comments received on the notice of
proposed rulemaking?
The public comment period for EPA's proposal to approve some
elements and conditionally approve other elements of certifications
submitted by the Region 5 states closed on May 31, 2011. EPA received
three comment letters; a synopsis of the significant individual
comments as well as EPA's response to each comment is discussed below.
Comment 1: One commenter objected to EPA's proposed approvals of
the states' SIPs on the ground that the states are not adequately
notifying the public of health risks related to the most recent ozone
and PM2.5 NAAQS. According to the commenter, the SIPs are
not consistent with section 110(a)(2)(J), Sub-element 2: Public
Notification, and EPA's approval of the submissions violates section
110(l). The commenter argued that it ``is wrong for States inform the
public that the air is `safe' based on the 1997 ozone and
PM2.5 NAAQS, particularly when EPA has determined that
concentrations of ground-level ozone above 75 parts per billion (ppb)
and concentrations of PM2.5 above 35 micrograms per cubic
meter ([mu]g/m\3\) are unsafe.'' The commenter continued that ``there
is no reason why States should not be informing the public of air
pollution dangers based on the 75 ppb ozone NAAQS and the 35 [mu]g/m\3\
PM2.5 NAAQS.'' The commenter urged EPA to require states to
inform the public of ``unsafe air pollution levels based on EPA's
official understanding of current public health science.''
Response 1: EPA disagrees with the commenter's view that the
existing SIPs of these states are not sufficient for purposes of the
1997 8-hour ozone NAAQS and the 1997 PM2.5 NAAQS, and that
approval thereof is inconsistent with section 110(l). In the proposed
rulemaking, EPA concluded that each of the Region 5 states ``* * * has
met the requirements of this portion of section 110(a)(2)(J) with
respect to the 1997 ozone and PM2.5 NAAQS.'' As explained
above, in these actions EPA is only addressing the 1997 8-hour ozone
NAAQS and the 1997 PM2.5 NAAQS, and is not taking action
with respect to any other NAAQS.
EPA agrees with the commenter that these NAAQS are not as
protective as needed for public health and welfare, as shown by EPA's
more recent promulgation of new NAAQS for both ground level ozone and
particulate matter based on new or revised health assessments.\15\
Nevertheless, all of the Region 5 states' submittals at issue in this
action were intended to satisfy the infrastructure SIP requirements in
relation to the 1997 8-hour ozone NAAQS and 1997 PM2.5
NAAQS. EPA's action here only addresses the requirements of section
110(a)(1) and (2) in the context of these NAAQS, and not of any
subsequent NAAQS. EPA will be taking separate actions on the Region 5
states' submissions for section 110(a)(1)and (2) with respect to the
revised ozone and PM2.5 NAAQS. In those later actions, EPA
will evaluate the states' satisfaction of applicable elements of
section 110(a)(2), including section 110(a)(2)(J), based on the
applicable NAAQS.
---------------------------------------------------------------------------
\15\ The most recent revisions to the 8-hour ground level ozone
NAAQS was published in the Federal Register on March 27, 2008 (73 FR
16436), and the most recent revisions to the 24-hour
PM2.5 NAAQS was published in the Federal Register on
October 17, 2006 (71 FR 61144).
---------------------------------------------------------------------------
As a further point of information, EPA observes that all Region 5
states participate in the AIRNOW program, which reports air quality
according to the current promulgated indices. Thus, members of the
public do have access to information concerning the ambient air quality
in their states, and this information is given with respect to the most
recent ozone and PM2.5 NAAQS. EPA believes that the
availability of this information serves to address the
[[Page 41080]]
commenter's concerns with respect to public information.
Finally, EPA disagrees with the commenter's view of the
applicability of section 110(l) to these actions on infrastructure
SIPs. EPA agrees that after the Agency promulgates a new or revised
NAAQS, subsequent SIP revisions should generally be evaluated for
compliance with section 110(l) in light of the existence of any such
new or revised NAAQS. However, section 110(l) is more typically a
concern with respect to revisions to an existing SIP in which there
could be a relaxation of a SIP approved provision in a way that would
interfere with attainment or maintenance of the NAAQS or any other
applicable requirement of the CAA. In this action, however, EPA is
merely approving a new submission that does not purport to subtract
from the existing SIP as previously approved by the Agency. These
submissions are intended to assure that the state's SIP meets the
requirements with respect to the specific NAAQS at issue, i.e., the
1997 8-hour ozone NAAQs and the 1997 PM2.5 NAAQS.
Comment 2: One commenter objected to EPA's proposed approval of the
submissions from several states on the grounds that the SIPs of each
state contain impermissible provisions. The commenter asserted that the
states of Wisconsin, Indiana, and Illinois have SSM exemptions in
regulations within their existing SIPs that are in conflict with EPA's
interpretation of the CAA. The commenters argued that such provisions
are contrary to section 110, and that until such provisions are
removed, the SIPs do not meet the requirements of section 110.
Response 2: EPA disagrees with the commenter's apparent conclusion
that if a state's existing SIP contains any arguably illegal SSM
provision, then EPA cannot approve the infrastructure SIP submission of
that state. As discussed in more detail in section II of this final
rulemaking, ``What is the scope of this final rulemaking?,'' EPA does
not agree that action upon an infrastructure SIP required by section
110(a)(1) and (2) requires that EPA address any existing SSM
provisions.
EPA shares the commenter's concerns that certain existing SSM
provisions may be contrary to the CAA and existing Agency guidance, and
that such provisions can have an adverse impact on air quality control
efforts in a given state. As stated in the proposal, EPA plans to
address such provisions in the future, and in the meantime encourages
any state having a deficient SSM provision to take steps to correct it
as soon as possible.
Comment 3: The same commenter also objected to EPA's proposed
approvals on the grounds that the existing SIPs of two states contain
another form of impermissible provision within their regulations. The
commenter asserted that the states of Wisconsin and Illinois have
director's discretion provisions in their respective regulations that
allow the director of their respective environmental protection
agencies to allow violations of SIP approved emissions limits by
sources under certain circumstances.
Response 3: EPA also disagrees with the commenter's apparent
conclusion that if a state's existing SIP contains any arguably illegal
director's discretion or director's variance provision, then EPA cannot
approve the infrastructure SIP submission of that state. As discussed
in more detail in section II of this final rulemaking, ``What is the
scope of this final rulemaking?,'' EPA does not agree that action upon
an infrastructure SIP required by section 110(a)(1) and (2) requires
that EPA address any existing director's discretion provisions.
EPA shares the commenter's concerns that certain existing
director's discretion provisions may be contrary to the CAA and
existing Agency guidance, and that such provisions can have an adverse
impact on air quality control efforts in a given state. As stated in
the proposal, EPA plans to take action in the future to address such
provisions, and in the meantime encourages any state having a deficient
director's discretion or director's variance provision to take steps to
correct it as soon as possible.
Comment 4: One commenter objected to EPA's proposed approval
because it did not explain why the Agency was not acting on the
requirements of section 110(a)(2)(D)(i) in the context of the
infrastructure SIPs for the 1997 8-hour ozone NAAQS and the 1997
PM2.5 NAAQS. The commenter argued that EPA provided no basis
for, and professed its own lack of awareness of a basis for, the
exclusion of section 110(a)(2)(D)(i) from this action. The commenter
implied that because EPA was not addressing section 110(a)(2)(D)(i) in
this specific action, it renders the action on the other elements of
section 110(a)(2) illegitimate.
Response 4: As previously explained, EPA bifurcated action on
section 110(a)(2)(D)(i) from the other applicable infrastructure SIP
requirements of section 110(a)(2) for the 1997 8-hour ozone NAAQS and
the 1997 PM2.5 NAAQS. This approach dates back to 2005 when
EPA entered into a consent decree with Environmental Defense Fund which
required EPA to make completeness findings with respect to section
110(a)(2)(D)(i) by March 15, 2005, and which required EPA to make
completeness findings with respect to other applicable requirements of
section 110(a)(2) by December 15, 2007, for the 1997 ozone NAAQS, and
by October 5, 2008, for the 1997 PM2.5 NAAQS. The findings
notice that announced EPA's completeness determinations for the
infrastructure SIP submissions for the 1997 8-hour ozone NAAQS and the
1997 PM2.5 NAAQS clearly articulated which elements of
section 110(a)(2) were relevant to those specific submissions.\16\ In
addition, EPA issued two separate guidance documents making
recommendations for SIP submissions to meet section 110(a)(2)(D)(i) and
for the other applicable requirements of section 110(a)(2) for these
NAAQS. As a result, states made one or more separate submissions to
address the substantive requirements of section 110(a)(2)(D)(i) that
are separate from, and outside the scope of, the SIP submissions that
are at issue in this action.
---------------------------------------------------------------------------
\16\ See, e.g., ``Completeness Findings for Section 110(a) State
Implementation Plans for the 8-hour Ozone NAAQS, 73 FR 16205 (March
27, 2008). EPA specifically noted that section 110(a)(2)(D)(i) was
being addressed in separate SIP actions. Id., 73 FR at 16206, at
footnote 1.
---------------------------------------------------------------------------
Comment 5: One commenter argued that the air pollution enforcement
program in Indiana is not sufficient, and implies that this is a basis
for EPA not to approve the infrastructure SIP submission from the
state. According to the commenter, press reports indicate that the
State is not aggressively enforcing air pollution regulations. In
support of its concerns, the commenter referred to an unspecified
letter from EPA to IDEM in which EPA expressed concerns about changes
to the enforcement program and funding of the enforcement program in
Indiana. In addition, the commenter asserted that IDEM has an
enforcement policy that requires a higher threshold for enforcement
showing adverse health impacts as a result of a violation and that this
threshold is inconsistent with protection of public health because of
the difficulty of proving causation with respect to health impacts.
Response 5: EPA acknowledges that concerns have been raised about
enforcement of air pollution programs in Indiana, including concerns
raised by EPA in a June 24, 2009 letter to David Pippen, Policy
Director in the Office of the Indiana Governor. However, EPA disagrees
that these concerns rise to the level of demonstrating that the state's
SIP is insufficient to meet the basic requirements of section
110(a)(2)(A) and (E) with respect to enforcement.
[[Page 41081]]
The commenter's primary objections with respect to enforcement in
Indiana go to matters that are properly construed as questions of
``enforcement discretion.'' In other words, EPA believes that certain
decisions about how best to direct enforcement resources, what sources
to investigate, what types of violations warrant more attention, etc.,
are largely matters of discretion that a state may determine.\17\ EPA
agrees that such enforcement discretion, if taken to extremes, could
call into question whether a state was effectively meeting its
obligations under the CAA. EPA does not see evidence of that in this
case. Similarly, questions of the adequacy of resources for effective
enforcement are largely matters of state discretion and would not be a
basis for disapproval action by EPA unless there were clear evidence
that the absence of resources rose to the level that the state was not
capable of fulfilling its obligations under the CAA. EPA does not see
evidence of that in this case. In short, EPA does not see a basis for
disapproval of the infrastructure SIP submissions by Indiana based on
the questions raised by the commenter.
---------------------------------------------------------------------------
\17\ It is important to note that the state's exercise of
enforcement discretion in the case of a particular violation does
not affect potential enforcement by EPA or other parties. Thus, the
state's policies with respect to what types of violations warrant
enforcement action by the state do not necessarily affect the
enforceability of the SIP itself.
---------------------------------------------------------------------------
EPA continues to monitor IDEM's air enforcement program through
monthly conference calls and reviews of enforcement data submitted by
IDEM. EPA confirms that IDEM inspectors are meeting EPA's Compliance
Monitoring Strategy requirements and furthermore, enforcement under
IDEM's reorganized Compliance and Enforcement Branch has shown an
increase in the number of enforcement actions timeliness of resolution.
EPA concludes that, in the context of acting on the infrastructure
SIPs for the 1997 8-hour ozone and 1997 PM2.5 NAAQS, the air
pollution enforcement program in Indiana is consistent with the basic
requirements of section 110(a)(1) and (2) of the CAA. In the event that
concerns with respect to adequate enforcement of the air pollution
program in the state arise in the future, EPA could address such
concerns using appropriate authorities under the CAA.
Comment 6: One commenter argued that Illinois has state law
provisions that undermine enforcement of SIP requirements. The
commenter asserts that the enforcement of air pollution regulations in
Illinois ``is undermined by a convoluted interpretation of State law,
including a lengthy appeals process and `automatic stay' provisions
that are applicable to Illinois Pollution Control Board hearings.''
According to the commenter, permittees who challenge their permits
benefit by stays of the challenged permit provisions that can provide
de facto variances from SIP requirements. Implicitly, the commenter
argued that this issue would preclude EPA's approval of the
infrastructure SIP submission by Illinois for the 1997 8-hour ozone
NAAQS and the 1997 PM2.5 NAAQS.
Response 6: EPA disagrees that the issue raised by the commenter
requires EPA to disapprove the submission by Illinois. EPA's review of
the infrastructure SIP is intended to evaluate whether the state's SIP
contains the basic requirements for implementation, maintenance, and
enforcement of the NAAQS in question. The commenter's concerns go to a
very specific issue resulting from interpretations of state law. EPA
believes that this issue has already been resolved with the state.
On March 3, 2011, EPA completed a review of Illinois EPA's
enforcement program in the context of the CAA. EPA is committed to
working with the State to address any problems that were documented in
the review. With respect to the automatic stay provisions in Illinois,
the Illinois State legislature amended the Illinois Environmental
Protection Act (415 ILCS 5/) to address this deficiency. The Governor
of Illinois signed this legislation on June 20, 2010. This legislation
eliminated the `automatic stay' provisions noted by the commenter;
therefore, EPA believes that all concerns with respect to this issue
have been resolved with respect to approval of Illinois' infrastructure
SIP for the 1997 8-hour ozone and 1997 PM2.5 NAAQS.
Comment 7: One commenter asserted that Wisconsin is not
implementing its SIP sufficiently to comply with 40 CFR 51.160 and
section 110(a) of the CAA. The commenter took issue with three aspects
of Wisconsin's permitting program, particularly with respect to
modeling. First, the commenter alleged that WDNR is effectively
exempting sources from demonstrating, through modeling, that emissions
from those sources will not cause NAAQS violations or prevent NAAQS
maintenance. In support of this claim, the commenter claimed that ``* *
* DNR's `guidance' \18\ on modeling notes that sources can avoid
modeling in nonattainment areas if they obtain offsets or model below
the SIL--despite no SIP provision for Wisconsin allowing such
exemptions to Wis. Stat. Sec. 285.63(1). Wisconsin DNR's `guidance'
also exempts all operating permits for sources in nonattainment areas
from the clea[r] requirement to demonstrate compliance with (and non-
prevention of maintenance of) NAAQS as a condition of permit approval
for all operating permits for all sources (not merely those in
attainment areas) in Wis. Stat. Sec. 285.63(1).''
---------------------------------------------------------------------------
\18\ The guidance that is being referred to can be found here:
https://dnr.wi.gov/air/pdf/wdnrguidance_v71final.pdf
---------------------------------------------------------------------------
Second, the commenter asserted that WDNR has not been modeling
compliance with PM2.5 for registration permits, and has
supported the claim by citing Wis. Stat. Sec. 285.63. As evidence for
this claim, the commenter pointed to a recent decision by a state
Administrative Law Judge concerning a failure to model compliance with
the PM2.5 NAAQS. The commenter claimed that the State
continues to fail to do so.
Third, the commenter claimed that WDNR does not model ozone
impacts, i.e., ozone NAAQS compliance, in contravention of the SIP
requirement to demonstrate compliance with all NAAQS as a condition of
permit issuance. Moreover, the commenter further asserted that to its
knowledge ``DNR has never analyzed the impacts of facilities on ozone
during permitting--as it is required to do pursuant to 42 U.S.C.
7410(a), 40 CFR 51.160, 51.166 and Wis. Stat. Sec. 285.63(1). In fact,
DNR's guidance states explicitly that it does not model for ozone
impacts.''
Response 7: EPA disagrees with the commenter's conclusions on each
point. First, with respect to the claim that the state's guidance
improperly ``exempts'' sources from modeling, EPA disagrees with the
commenter's conclusions. EPA's regulations at 40 CFR part 51 section
160(a) and (b) require that states have a procedure to establish
whether a source will, inter alia, interfere with attainment or
maintenance of the NAAQS. The guidance cited by the commenter is not
inconsistent with this requirement, and EPA's regulations do not
preclude the appropriate use of offsets or SILs as a means to determine
that there will not be such an impact. Therefore, the commenter's
objections do not indicate that the State's infrastructure SIP is
inconsistent with the applicable requirements of section 110(a)(1) and
(2).
Second, the argument that the commenter made with respect to the
decision of the Administrative Law Judge is a matter of concern, but
does not establish that the State is failing to conduct the necessary
analysis in connection with all permits. Moreover,
[[Page 41082]]
the decision in question relates to the minor source NSR program, and
as explained in section II, minor source NSR is an issue that EPA
considers outside of the scope of infrastructure SIP evaluations.
Therefore, any evaluation of Wisconsin's minor source NSR program will
be conducted independently of this rulemaking.
Finally, in response to the commenter's third point, the PSD
regulations require an ambient impact analysis for ozone for proposed
major stationary sources and major modifications to obtain a PSD permit
(40 CFR 51.166 (b)(23)(i), (i)(5)(i)(f), (k), (l) and (m) and 40 CFR
52.21 (b)(23)(i), (i)(5)(i)(f), (k), (l) and (m)), but not necessarily
modeling in all cases. The regulations at 40 CFR 51.166(l) state that
for air quality models the SIP shall provide for procedures which
specify that:
(1) All applications of air quality modeling involved in this
subpart shall be based on the applicable models, data bases, and other
requirements specified in Appendix W of this part (Guideline on Air
Quality Models).
(2) Where an air quality model specified in Appendix W of this part
(Guideline on Air Quality Models) is inappropriate, the model may be
modified or another model substituted. Such a modification or
substitution of a model may be made on a case-by-case basis or, where
appropriate, on a generic basis for a specific State program. Written
approval of the Administrator must be obtained for any modification or
substitution. In addition, use of a modified or substituted model must
be subject to notice and opportunity for public comment under
procedures set forth in Sec. 51.102.
These parts of 40 CFR Part 51 and 52 are the umbrella SIP
components that states have either adopted by reference or the states
have been approved and delegated authority to incorporate the PSD
requirements of the CAA. As discussed above, these Part 51 and 52 PSD
provisions refer to 40 CFR Part 51, Appendix W for the appropriate
method to utilize for the ambient impact assessment. 40 CFR Part 51,
Appendix W is the Guideline on Air Quality models and Section 1.0.a.
states:
The guideline recommends air quality modeling techniques that
should be applied to State Implementation Plan (SIP) revisions for
existing sources and to new source review (NSR), including prevention
of significant deterioration (PSD). {footnotes not included{time}
Applicable only to criteria air pollutants, it is intended for use by
EPA Regional Offices in judging the adequacy of modeling analyses
performed by EPA, State and local agencies, and by industry. * * * The
Guideline is not intended to be a compendium of modeling techniques.
Rather, it should serve as a common measure of acceptable technical
analysis when supported by sound scientific judgment.
Appendix W Section 5.2.1. includes the Guideline recommendations
for models to be utilized in assessing ambient air quality impacts for
ozone. Specifically, Section 5.2.1.c states:
Estimating the Impact of Individual Sources. Choice of methods used
to assess the impact of an individual source depends on the nature of
the source and its emissions. Thus, model users should consult with the
Regional Office to determine the most suitable approach on a case-by-
case basis (subsection 3.2.2).
Appendix W Section 5.2.1.c provides that the state and local
permitting authorities and permitting applicants should work with the
appropriate EPA Regional Office on a case-by-case basis to determine an
adequate method for performing an air quality analysis for assessing
ozone impacts. Due to the complexity of modeling ozone and the
dependency on the regional characteristics of atmospheric conditions,
EPA believes this is an appropriate approach rather than specifying a
method for assessing single source ozone impacts, which may not be
appropriate in all circumstances. Instead, the choice of method
``depends on the nature of the source and its emissions. Thus, model
users should consult with the Regional Office * * *.'' Appendix W
Section 5.2.1.c. Therefore, EPA continues to believe it is appropriate
for permitting authorities to consult and work with EPA Regional
Offices as described in Appendix W, including section 3.0.b and c,
3.2.2, and 3.3, to determine the appropriate approach to assess ozone
impacts for each PSD required evaluation.
EPA has previously approved the State's PSD program.\19\ EPA
observes that Wisconsin routinely consults with staff in the Region 5
Office to examine the impacts of ozone from specific sources on a case-
by-case basis for permitting purposes. Moreover, EPA observes that the
modeling guidance referenced by the commenter is not an approved part
of Wisconsin's SIP. Thus, the commenter has not demonstrated that we
should not approve this infrastructure SIP submission.
---------------------------------------------------------------------------
\19\ See, ``Approval and Promulgation of Implementation Plans;
Wisconsin,'' 64 FR 28745 (May 27, 1999).
---------------------------------------------------------------------------
Comment 8: One commenter objected to EPA's proposed conditional
approval of the submissions of Indiana, Michigan, and Ohio, with
respect to section 110(a)(2)(C) based upon a commitment of each state
to update its respective SIP to eliminate the use of PM10 as
a surrogate for PM2.5 in its PSD program. The commenter
argued that this use of a conditional approval is inappropriate because
it would allow states to continue to use a PM10 surrogacy
policy that EPA has explicitly determined may not be used by states
after May 16, 2011. The commenter further asserted that aside from the
inappropriate use of conditional approval, any approval of SIPs that
rely on the use of PM10 as a surrogate for PM2.5
would be contrary to the CAA for a variety of legal and factual
reasons.
Response 8: Based on an evaluation of the concerns raised by the
commenter, EPA has concluded that a conditional approval is not
appropriate in these specific facts and circumstances. Congress has
explicitly authorized EPA to use conditional approvals under section
110(k)(4), provided that states make a commitment to adopt specific
measures by a date certain within one year. As noted by the commenter,
the courts have confirmed that conditional approvals are an available
course of action under section 110(k), but only if the statutory
conditions for such a conditional approval have been met.
In this instance, EPA believed that the states had made commitments
to take sufficiently ``specific'' actions within the statutorily
allotted time, by committing to make a specified SIP submission that
would eliminate the use of PM10 as a surrogate for
PM2.5 by a date certain.\20\ However, the commenter's
concerns go not to whether the commitments were specific enough, but
rather to whether a conditional approval is appropriate at all, in
light of other EPA determinations with respect to when states must
cease using the PM10 surrogate policy. EPA agrees that its
own determination with respect to when states must cease using the
PM10
[[Page 41083]]
surrogacy policy is relevant to whether a conditional approval is the
correct course of action. Section 110(k)(4) provides that EPA ``may''
approve a SIP conditionally, thereby indicating that EPA has discretion
to determine that a given substantive issue is or is not suitable for a
conditional approval. After considering the commenter's concerns, EPA
has concluded that a conditional approval is not appropriate in these
circumstances.
---------------------------------------------------------------------------
\20\ The commenter cited Sierra Club v. EPA, 356 F.3d 296 (D.C.
Cir. 2004), for the proposition that EPA cannot use a section
110(k)(4) conditional approval to approve plans that do ``nothing
more than promise to do tomorrow what the Act requires today.'' EPA
disagrees with this overbroad contention. So long as the conditional
approval meets the statutory requirements of section 110(k)(4), EPA
believes that it may be appropriate to give a conditional approval
to a state allowing it to rectify a deficiency in a submission that
would otherwise constitute a basis for a disapproval, if the state
were not willing to commit to rectify the deficiency within the
requisite time. To read the statute to prohibit use of section
110(k)(4) in such circumstances, as the commenters advocate, would
render it a legal nullity.
---------------------------------------------------------------------------
In order to address the commenter's substantive concern about
continued use of the PM10 surrogate policy after May 16,
2011, EPA asked the states of Indiana, Michigan, and Ohio to clarify
the facts with respect to their current usage of the PM10
surrogate policy for PSD permitting purposes. All three states
responded that they have the legal authority under their respective PSD
regulations to regulate PM2.5 directly, rather than
PM10. Furthermore, the states of Indiana, Michigan, and Ohio
confirmed that they have discontinued reliance on the PM10
surrogate policy to satisfy the PSD requirements for PM2.5.
Indiana, Michigan, and Ohio transmitted letters affirming these points
on June 17, 2011, June 22, 2011, and June 23, 2011, respectively.
EPA considers the letters from each state to be a supplemental
submission that clarifies and updates the prior infrastructure SIP
submissions. Therefore, EPA considers the facts as represented by each
state in its letter to be a part of the basis for its evaluation of the
infrastructure SIPs. Because each state has confirmed that it already
has the requisite legal authority to regulate PM2.5 directly
in its PSD program, and because each state has confirmed that it is no
longer using the PM10 surrogate policy, EPA concludes that
there is no need to use a conditional approval with respect to section
110(a)(2)(C) for each of these states. Therefore, in today's action EPA
is simply approving the submissions with respect to section
110(a)(2)(C). EPA believes that this course of action will alleviate
the legitimate concerns of the commenters with respect to any continued
use of the PM10 surrogacy policy in these states.
IV. What action is EPA taking?
For the reasons discussed in the proposed rulemaking, as well as
the responses to comments received by EPA during the public comment
period, EPA is taking final action to approve elements of submissions
from the EPA Region 5 states certifying that the current SIPs are
sufficient to meet the applicable infrastructure elements under
sections 110(a)(1) and (2) for the 1997 8-hour ozone NAAQS and the 1997
PM2.5 NAAQS. Notably, whereas the proposed rulemaking
contained conditional approvals for Indiana, Michigan, and Ohio with
respect to their satisfaction of section 110(a)(2)(C), Sub-element 3:
PM10 surrogate policy, EPA's final action for these three
states is an approval based on the discussion in the response to
Comment 8.
Based upon comments received during the rulemaking, EPA is not
finalizing its proposed approval of the submission from the State of
Wisconsin with respect to two narrow issues that relate to section
110(a)(2)(C): (i) The requirement for consideration of NOX
as a precursor to ozone; and (ii) the definition of ``major
modification'' related to fuel changes for certain sources. EPA will
address these issues in a later action.
As detailed in section II of this final action, EPA is affirming
that there are four substantive issues outside of the scope of this
rulemaking: SSM provisions, director's discretion provisions, NSR
Reform, and minor source NSR. It should be noted, however, that our
proposed rulemaking included discussion of various past EPA approvals
of minor source NSR program submissions from Region 5 states in
connection with section 110(a)(2)(C). After realizing the confusion
engendered by EPA's statements about certain issues that the Agency
considers outside the scope of action on infrastructure SIPs, we want
to clarify that EPA does not consider the minor source NSR program to
be one that states must address in their infrastructure SIPs, nor one
that EPA must evaluate in approving such infrastructure SIPs.
Therefore, our final action maintains that EPA is neither approving nor
disapproving the minor source NSR programs in the states of Illinois,
Indiana, Ohio, Michigan, Minnesota, and Wisconsin in the context of
infrastructure SIPs. Any future evaluation of those minor source NSR
programs will be conducted independently of today's actions.
Specifically, these are EPA's final actions, by element of section
110(a)(2):
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\21\ In addition to the information provided in this table for
the State of Wisconsin, EPA reiterates once again that we are not
finalizing any action with respect to the definition of ``major
modification'' related to fuel changes for certain sources in
Wisconsin. EPA will address this issue, as well as Wisconsin's PSD
provisions that include NOX as a precursor to ozone, in a
separate action.
------------------------------------------------------------------------
WI
Element IL IN OH MI MN \21\
------------------------------------------------------------------------
A: Emission limits and other A A A A A A
control measures.
B: Ambient air quality A A A A A A
monitoring and data system.
C1: Enforcement of SIP measures A A A A A A
C2: NOX as a precursor to ozone * A A A * NA
in PSD regulations.
C3: PM10 surrogate policy in * A A A * A
PSD regulations.
C4: NSR reform................. NA NA NA NA NA NA
C5: GHG permitting in PSD * A A A * A
regulations.
C6: Minor source NSR NA NA NA NA NA NA
regulations.
D(i): Interstate transport.....
