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]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[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.

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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.
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    \1\ See, e.g., Whitman v. American Trucking Associations, Inc., 
531 U.S. 457 (2001).
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    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.
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    \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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    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\
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    \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'').
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    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\
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    \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.
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    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.
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    \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.
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    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\
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    \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).
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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.
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    \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):
---------------------------------------------------------------------------

    \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.....