Approval of Air Quality Implementation Plans; Wisconsin; Disapproval of “Infrastructure” SIP With Respect to Oxides of Nitrogen as a Precursor to Ozone Provisions and New Source Review Exemptions for Fuel Changes as Major Modifications for the 1997 8-Hour Ozone and 24-Hour PM2.5, 23647-23652 [2012-9608]

Download as PDF Federal Register / Vol. 77, No. 77 / Friday, April 20, 2012 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS Container barcode link from RIBBS https://ribbs.usps.gov. Electronic Documentation To participate in Full Service, mailers must submit their postage statements and mailing documentation, when applicable, electronically using one of three methods: Mail.dat®, Mail.XML®, or Postal Wizard® to transmit electronic information. These data are transmitted to the Postal Service’s PostalOne! system, where they are used for verification, acceptance, payment, service performance measurement, and induction planning and processing. The PostalOne! system can also use this information to automate payment processes using ACH Debit or Credit payment methods. With the PostalOne! system, mailers have access to their mailing documentation and financial transaction information 24 hours a day, seven days a week. 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The Postal Wizard automatically calculates postage and validates information entered. Once a postage statement is completed online, electronic statements will be submitted directly to the acceptance unit. For detailed information about electronic mailing information options, access the following RIBBS link https:// ribbs.usps.gov. Stanley F. Mires, Attorney, Legal Policy & Legislative Advice. [FR Doc. 2012–9537 Filed 4–19–12; 8:45 am] BILLING CODE 7710–12–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R05–OAR–2007–1179; FRL–9661–5] Approval of Air Quality Implementation Plans; Wisconsin; Disapproval of ‘‘Infrastructure’’ SIP With Respect to Oxides of Nitrogen as a Precursor to Ozone Provisions and New Source Review Exemptions for Fuel Changes as Major Modifications for the 1997 8-Hour Ozone and 24-Hour PM2.5 NAAQS Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: Pursuant to EPA’s authority under the Clean Air Act (CAA), EPA is proposing to disapprove two narrow portions of submissions made by the Wisconsin Department of Natural Resources (WDNR) to address the section 110(a)(1) and (2) requirements of the CAA, often referred to as the ‘‘infrastructure’’ State Implementation Plan (SIP). Specifically, we are proposing to disapprove the portions of WDNR’s submissions intended to meet certain requirements of section 110(a)(2)(C) with respect to the 1997 8hour ozone National Ambient Air Quality Standards (NAAQS) and 1997 24-hour PM2.5 NAAQS. Among other conditions, section 110(a)(2)(C) of the CAA requires states to correctly address oxides of nitrogen (NOX) as a precursor to ozone in their respective prevention of significant deterioration (PSD) programs. EPA is proposing to disapprove a portion of Wisconsin’s SUMMARY: PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 23647 submissions intended to satisfy this requirement. EPA is also proposing to disapprove a portion of Wisconsin’s submissions because the SIP currently contains a new source review (NSR) exemption for fuel changes as major modifications where the source was capable of accommodating the change before January 6, 1975. DATES: Comments must be received on or before May 21, 2012. ADDRESSES: Submit your comments, identified by Docket ID No. EPA–R05– OAR–2007–1179, by one of the following methods: 1. www.regulations.gov: Follow the on-line instructions for submitting comments. 2. Email: aburano.douglas@epa.gov. 3. Fax: (312) 408–2279. 4. Mail: Douglas Aburano, Chief, Attainment Planning and Maintenance Section, Air Programs Branch (AR–18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. 5. Hand Delivery: Douglas Aburano, Chief, Attainment Planning and Maintenance Section, Air Programs Branch (AR–18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Such deliveries are only accepted during the Regional Office normal hours of operation, and special arrangements should be made for deliveries of boxed information. The Regional Office official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays. Instructions: Direct your comments to Docket ID No. EPA–R05–OAR–2007– 1179. EPA’s policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or email. The www.regulations.gov Web site is an ‘‘anonymous access’’ system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA E:\FR\FM\20APP1.SGM 20APP1 23648 Federal Register / Vol. 77, No. 77 / Friday, April 20, 2012 / Proposed Rules recommends that you include your name and other contact information in the body of your comment and with any disk or CD–ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. Docket: All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in 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, Environmental Engineer, 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: tkelley on DSK3SPTVN1PROD with PROPOSALS I. What should I consider as I prepare my comments for EPA? II. What is the background for this action? III. What is EPA’s evaluation of Wisconsin’s infrastructure SIP for the 1997 ozone and 1997 PM2.5 NAAQS? A. NOX as a precursor to ozone provisions. B. Fuel Changes as Major Modifications IV. What action is EPA taking? V. Statutory and Executive Order Reviews I. What should I consider as I prepare my comments for EPA? When submitting comments, remember to: 1. Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number). 2. Follow directions—EPA may ask you to respond to specific questions or organize comments by referencing a VerDate Mar<15>2010 16:09 Apr 19, 2012 Jkt 226001 Code of Federal Regulations (CFR) part or section number. 3. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. 4. Describe any assumptions and provide any technical information and/ or data that you used. 5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. 6. Provide specific examples to illustrate your concerns, and suggest alternatives. 7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats. 8. Make sure to submit your comments by the comment period deadline identified. II. What is the background for this action? Under sections 110(a)(1) and (2) of the CAA, and implementing EPA guidance, states were required to submit either revisions to their existing EPA approved SIPs necessary to provide for implementation, maintenance, and enforcement of the 1997 ozone NAAQS and 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 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 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. 1 See, e.g., Whitman v. American Trucking Associations, Inc., 531 U.S. 457 (2001). PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 Wisconsin made its infrastructure SIP submission for the 1997 ozone and PM2.5 NAAQS on December 12, 2007. The State provided supplemental submissions to EPA on January 24, 2011, and March 28, 2011. On April 28, 2011, EPA published its proposed action on the Region 5 states’ submissions (see 76 FR 23757). Notably, we proposed to find that Wisconsin had met the requirements of section 110(a)(2)(C) concerning state PSD programs generally, and in particular the requirement to include NOX as a precursor to ozone (see 76 FR 23757 at 23760–23761), thereby satisfying the requirement that the State has an adequate PSD program pursuant to section 110(a)(2)(C) for both the 1997 ozone and 1997 PM2.5 NAAQS.2 During the comment period for the April 28, 2011, proposed rulemaking, EPA received three sets of comments. Two of the commenters observed that although we had proposed to approve Wisconsin’s infrastructure SIP as meeting the correct requirements for NOX as a precursor to ozone in the State’s PSD program, Wisconsin’s PSD SIP does not contain the most recent PSD program revisions required by EPA for this purpose. One of the commenters also noted that Wisconsin’s existing SIP does not meet current EPA requirements with respect to NSR because Wisconsin has not included fuel changes as ‘‘major modifications’’ in its NSR program for certain sources under certain conditions. A detailed discussion of these comments as they relate to Wisconsin’s SIP will follow in the section entitled, ‘‘What is EPA’s evaluation of Wisconsin’s infrastructure SIP for the 1997 ozone and 1997 PM2.5 NAAQS?’’ As a result of the comments, we did not promulgate final action on those two limited aspects of Wisconsin’s infrastructure SIP in our July 13, 2011, final rulemaking (see 76 FR 41075). We did, however, promulgate final action on all other applicable elements of Wisconsin’s infrastructure SIP. In the July 13, 2011, rulemaking, we committed to address the issues raised in the comments concerning NOX as a precursor to ozone and the definition of ‘‘major modification’’ related to fuel changes for certain sources in Wisconsin in a separate action; this 2 EPA noted that each state’s PSD program must meet certain basic program requirements, e.g., if a state lacks provisions needed to address NOX as a precursor to ozone, the provisions of section 110(a)(2)(C) requiring an adequate permitting program must be considered not to be met, irrespective of the pollutant being addressed in the infrastructure SIP submission. E:\FR\FM\20APP1.SGM 20APP1 Federal Register / Vol. 77, No. 77 / Friday, April 20, 2012 / Proposed Rules proposed rulemaking and future final rulemaking serve as that action. tkelley on DSK3SPTVN1PROD with PROPOSALS III. What is EPA’s evaluation of Wisconsin’s infrastructure SIP for the 1997 ozone and 1997 PM2.5 NAAQS? As stated above, EPA promulgated final action on all applicable elements of Wisconsin’s infrastructure SIP submissions for the 1997 ozone and 1997 PM2.5 NAAQS except for the narrow issues related to section 110(a)(2)(C) with respect to the current regulatory requirements for NOX as a precursor to ozone in PSD permitting and the definition of ‘‘major modification’’ related to fuel changes for certain sources.3 The following discussion is applicable only to these two unresolved issues for Wisconsin’s infrastructure SIP, and will not extend to the elements or requirements of sections 110(a)(1) and (2) for which EPA has previously promulgated final action. A. NOX as a Precursor to Ozone Provisions During the public comment period following EPA’s April 28, 2011 proposed rulemaking, commenters disagreed with EPA’s proposed conclusion that the SIP for Wisconsin currently meets the requirements for NOX as a precursor for ozone in permitting contexts. The commenters noted that in the proposed rulemaking, EPA stated that Wisconsin’s PSD rules include NOX as a precursor to ozone, and that EPA cited the approval of this provision as occurring on May 27, 1999 (see 64 FR 28745). The commenters disagreed with EPA’s conclusion that the May 27, 1999, approval, specifically of NR 405.02(21)(a), adequately addresses the issue of inclusion of NOX as a precursor to ozone. After careful consideration of the comments, we have concluded that the commenters were correct on this point because the current EPA approved SIP for the state does not contain specific SIP revisions for the PSD program required by EPA. On November 29, 2005, EPA published the ‘‘Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standard—Phase 2; Final Rule to Implement Certain Aspects of the 1990 Amendments Relating to New Source Review and Prevention of Significant Deterioration as They Apply in Carbon Monoxide, Particulate Matter, and Ozone NAAQS; Final Rule for Reformulated Gasoline’’ 3 Although the evaluation of states’ definitions of ‘‘major modification’’ related to fuel changes was not a criterion outlined in EPA’s April 28, 2011 proposed rulemaking, this issue is intrinsically linked to states’ PSD regulations, covered under section 110(a)(2)(C). VerDate Mar<15>2010 16:09 Apr 19, 2012 Jkt 226001 (Phase 2 Rule) (see 70 FR 71612). One aspect of the Phase 2 Rule was the specific requirement to identify NOX as an explicit ozone precursor (see 70 FR 71612 at 71679, 71699–71700). This requirement was codified in 40 CFR 51.166, and consisted of the following: 4 40 CFR 51.166 (b)(1)(ii): A major source that is major for volatile organic compounds or NOX shall be considered major for ozone; 40 CFR 51.166 (b)(2)(ii): Any significant emissions increase (as defined at paragraph (b)(39) of this section) from any emissions units or net emissions increase (as defined in paragraph (b)(3) of this section) at a major stationary source that is significant for volatile organic compounds or NOX shall be considered significant for ozone; 40 CFR 51.166 (b)(23)(i): Ozone: 40 tons per year of volatile organic compounds or nitrogen oxides; 40 CFR 51.166 (b)(49)(i): Any pollutant for which a national ambient air quality standard has been promulgated and any constituents or precursors for such pollutants identified by the Administrator (e.g., volatile organic compounds and NOX) are precursors for ozone; and 40 CFR 51.166 (i)(5)(i)(e) footnote 1: No de minimis air quality level is provided for ozone. However, any net emissions increase of 100 tons per year or more of volatile organic compounds or nitrogen oxides subject to PSD would be required to perform an ambient impact analysis, including the gathering of air quality data. The Phase 2 Rule required that states submit SIP revisions incorporating the requirements of the rule, including these specific NOX as a precursor to ozone provisions, by June 15, 2007 (see 70 FR 71612 at 71683). EPA believes that states’ SIPs do not meet current structural requirements for the PSD program, and thus do not meet the infrastructure SIP requirements relevant to section 110(a)(2)(C), unless states have made these revisions required in 2007. Thus, states that did not incorporate the changes specific to identifying NOX as a precursor to ozone required by the Phase 2 Rule were included in EPA’s March 27, 2008 ‘‘Completeness Findings for Section 110(a) State Implementation Plans for the 8-Hour Ozone NAAQS’’ and received a finding of failure to submit related to section 110(a)(2)(C) for this reason (see 73 FR 16205). Wisconsin was not included in the March 27, 2008 findings notice. 4 Similar PO 00000 changes were codified in 40 CFR 52.21. Frm 00013 Fmt 4702 Sfmt 4702 23649 Similarly, consistent with the Phase 2 Rule, EPA has disapproved portions of other states’ infrastructure SIPs on the basis that they have not explicitly identified NOX as a precursor to ozone. Notably, we disapproved the portion of Montana’s infrastructure SIP with respect to this requirement of section 110(a)(2)(C) on July 22, 2011 (see 76 FR 43918). EPA also finalized a partial Federal Implementation Plan (FIP) on August 8, 2011, which included provisions that explicitly include NOX as a precursor to ozone in the North Coast Unified Air Quality Management District of California (see 76 FR 48006). Likewise, EPA has acted on portions of the SIP submission required by the Phase 2 Rule in conjunction with acting on a state’s infrastructure SIP submission. For example, EPA promulgated final approval with respect to South Dakota’s revisions to its PSD program identifying NOX as a precursor to ozone consistent with the requirements of the Phase 2 Rule concurrently with final action on South Dakota’s infrastructure SIP for the 1997 ozone NAAQS.5 Therefore, based on EPA’s own regulations, submission deadlines, and actions germane to the explicit identification of NOX as a precursor to ozone in Federally approved PSD programs, we are proposing to disapprove the portions of Wisconsin’s infrastructure SIP submission with respect to the NOX as a precursor to ozone provision requirements of section 110(a)(2)(C) for the 1997 ozone and PM2.5 NAAQS. B. Fuel Changes as Major Modifications During the comment period following EPA’s April 28, 2011, proposed rulemaking, one commenter argued that Wisconsin’s existing SIP is deficient for purposes of section 110(a)(2)(C) because it does not meet current EPA requirements with respect to the NSR program. The commenter noted that the NSR program requires states to adopt definitions that are identical to, or more stringent than, EPA’s definitions. Contrary to EPA’s definition, the commenter asserted that Wisconsin has not included fuel changes as ‘‘major modifications’’ in its NSR program. The commenter cited a 2009 letter from EPA to the state requesting that the state update its regulations to address this specific issue. The definition of ‘‘major modification’’ as it relates to PSD is 5 EPA’s proposed action for South Dakota was published on May 12, 2011 (see 76 FR 27622), and our final action for South Dakota was published on July 22, 2011 (see 76 FR 43912). E:\FR\FM\20APP1.SGM 20APP1 23650 Federal Register / Vol. 77, No. 77 / Friday, April 20, 2012 / Proposed Rules generally defined in NR 405.02(21) of Wisconsin’s SIP. The exemptions to ‘‘physical change’’ are contained at NR 405.02(21)(b). One exemption is the ability of a source capable of accommodating different types of fuels before 1975 to switch the type of fuel burned, unless strictly prohibited by a restriction in a permit established after 1975. EPA regulations contained at 40 CFR 51.166(b)(2)(iii)(e)(1) and (2) specifically prescribe when use of an alternative fuel is not considered a physical change for purposes of defining a ‘‘major modification.’’ These regulations require that a physical change or change in the method shall not include use of an alternative fuel or raw material by a stationary source which: The source was capable of accommodating before January 6, 1975, unless such change would be prohibited under any federally enforceable permit condition which was established after January 6, 1975 pursuant to 40 CFR 52.21 or under regulations approved pursuant to 40 CFR [part 51], subpart I, or 40 CFR 51.166; or The source is approved to use [the fuel] under any permit issued under 40 CFR 52.21 or under regulations approved pursuant to 40 CFR 51.166. The Wisconsin regulations set out the conditions for the fuel change exemption as follows: tkelley on DSK3SPTVN1PROD with PROPOSALS The source was capable of accommodating the alternative fuel or raw material before January 6, 1975, unless the change would be prohibited under any federally enforceable permit condition which was established after January 6, 1975 pursuant to this chapter or ch. NR 406 or 408 or under an operation permit issued pursuant to ch. NR 407. [Or, t]he source is approved to use the alternative fuel or raw material under any permit issued under this chapter or ch. NR 406, 407, or 408. See proposed NR 405.02(21)(b)5. The Wisconsin rule is similar to the Federal rule, but differs by substituting references to Wisconsin Administrative Code sections, omitting EPA’s phrase ‘‘pursuant to 40 CFR 52.21 or under regulations approved pursuant to 40 CFR [part 51], subpart I, or 40 CFR 51.166.’’ The commenter objected that failure to cite Federal regulations results in the loss of prohibitions on fuel use exemptions that may have been contained in Federally-issued PSD permits, issued prior to EPA’s approval of Wisconsin’s PSD SIP. The result, the commenter noted that Wisconsin’s rule allows more exemptions to the definition of ‘‘major modification’’ than allowed by the Federal rules. After careful consideration of the comment, we have concluded that the commenters were correct on this point because the current EPA approved SIP VerDate Mar<15>2010 16:09 Apr 19, 2012 Jkt 226001 for the state does contain a specific provision that is inconsistent with the NSR program required by EPA. Because this provision is relevant to a structural requirement of the PSD permitting program, EPA believes that this issue affects the approvability of the infrastructure SIP submissions for purposes of meeting the requirements of section 110(a)(2)(C). EPA notes that this is an issue that has previously arisen and that the State has acknowledged and agreed to address it. The Sierra Club first raised a concern about this issue in the context of EPA’s approval of Wisconsin’s NSR Reform regulations on December 17, 2008 (see 73 FR 76560). In that final rulemaking, EPA stated that the definition of ‘‘major modification’’ and the associated fuel use prohibitions were not part of the specific SIP submission being acted upon by EPA at that time. However, we did agree that the language in the Wisconsin SIP needed to be revised (see 73 FR 76560 at 76566). On June 17, 2009, EPA requested that the State revise its regulatory language in NR 405.02(21)(b)(5) and (6), and NR 408.02(20)(e)(5) and (6), to include permit conditions in Federally-issued permits. On June 1, 2011, WDNR committed to begin the rulemaking process necessary to do so within 120 days by including the requested revision in its next major rulemaking. However, WDNR’s commitment did not include a date certain by which it would complete the requested revision of the State’s regulations. As a result, EPA may not at this time promulgate an approval or conditional approval of the section 110(a)(2)(C) portion of Wisconsin’s infrastructure SIP for the 1997 ozone and PM2.5 NAAQS with respect to this narrow issue. After reviewing Wisconsin’s current SIP in light of EPA’s own regulations and request to the State to make appropriate revisions to the SIP necessary to address this issue, we are proposing to disapprove Wisconsin’s infrastructure SIP submissions for the 1997 ozone and PM2.5 NAAQS with respect to the NSR exemption for fuel changes as ‘‘major modifications’’ where the source was capable of accommodating the change before January 6, 1975. We note that this disapproval is a narrow one, and limited to the specific state regulatory language concerning the exemption. IV. What action is EPA taking? EPA is proposing to disapprove two narrow portions of Wisconsin’s infrastructure SIP submissions for the 1997 ozone and PM2.5 NAAQS with respect to section 110(a)(2)(C). PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 Specifically, we are proposing to disapprove the portions of Wisconsin’s submissions because the current SIP does not satisfy the requirements of the Phase 2 Rule for explicit identification of NOX as a precursor to ozone in PSD permitting. We are also proposing to disapprove the portions of Wisconsin’s submissions because the current SIP contains an impermissible NSR exemption for fuel changes as ‘‘major modifications’’ where the source was capable of accommodating the change before January 6, 1975. These grounds for disapproval are narrow, and pertain only to these specific deficiencies in Wisconsin’s SIP. We anticipate that the State will be able to rectify these issues readily and we will work with the State to rectify these issues promptly. Under section 179(a) of the CAA, final disapproval of a submission that addresses a requirement of a Part D Plan (section 171—section 193 of the CAA), or is required in response to a finding of substantial inadequacy as described in section 110(k)(5) starts a sanction clock. The provisions in the submissions we are disapproving were not submitted by Wisconsin to meet either of those requirements. Therefore, if EPA takes final action to disapprove these submissions, no sanctions under section 179 will be triggered. The full or partial disapproval of a SIP revision triggers the requirement under section 110(c) that EPA promulgate a FIP no later than two years from the date of the disapproval unless the State corrects the deficiency, and the Administrator approves the plan or plan revision before the Administrator promulgates such FIP. As previously mentioned, EPA anticipates that WDNR will make a submission rectifying each of these deficiencies. Further, EPA anticipates acting on WDNR’s submissions within the two year time frame prior to our FIP obligation on these very narrow issues. In the interim, EPA expects WDNR to treat and explicitly identify NOX as a precursor to ozone for PSD permitting consistent with the requirements of the Phase 2 Rule, and to ensure adherence to the prohibitions on fuel use exemptions in Federally-issued permits. V. Statutory and Executive Order Reviews Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA’s role is to approve state choices, provided that they meet the criteria of the CAA. In this case EPA is E:\FR\FM\20APP1.SGM 20APP1 Federal Register / Vol. 77, No. 77 / Friday, April 20, 2012 / Proposed Rules disapproving two aspects of the Wisconsin SIP that fail to meet Federal requirements. Executive Order 12866: Regulatory Planning and Review Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a ‘‘significant regulatory action’’ and, therefore, is not subject to review under the Executive Order. tkelley on DSK3SPTVN1PROD with PROPOSALS Paperwork Reduction Act This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., because this proposed SIP disapproval under section 110 and subchapter I, part D of the CAA will not create any new information collection burdens but simply disapproves certain State requirements for inclusion into the SIP. Burden is defined at 5 CFR 1320.3(b). Regulatory Flexibility Act The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. For purposes of assessing the impacts of today’s rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration’s (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise that is independently owned and operated and is not dominant in its field. After considering the economic impacts of today’s proposed rule on small entities, I certify that this action will not have a significant impact on a substantial number of small entities. This rule does not impose any requirements or create impacts on small entities. This proposed SIP disapproval under section 110 and subchapter I, part D, of the CAA will not create any new requirements but simply disapproves certain State requirements for inclusion into the SIP. Accordingly, it affords no opportunity for EPA to fashion for small entities less burdensome compliance or reporting requirements or timetables or exemptions from all or part of the rule. The fact that the CAA prescribes that VerDate Mar<15>2010 16:09 Apr 19, 2012 Jkt 226001 various consequences (e.g., higher offset requirements) may or will flow from this disapproval does not mean that EPA either can or must conduct a regulatory flexibility analysis for this action. Therefore, this action will not have a significant economic impact on a substantial number of small entities. We continue to be interested in the potential impacts of this proposed rule on small entities and welcome comments on issues related to such impacts. Unfunded Mandates Reform Act This action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531– 1538 for State, local, or tribal governments or the private sector.’’ EPA has determined that the proposed disapproval action does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This action proposes to disapprove pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action. Executive Order 13132: Federalism Executive Order 13132, entitled ‘‘Federalism’’ (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure ‘‘meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.’’ ‘‘Policies that have federalism implications’’ is defined in the Executive Order to include regulations that have ‘‘substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.’’ This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely disapproves certain State requirements for inclusion into the SIP and does not alter the relationship or the distribution of power and responsibilities established in the CAA. Thus, Executive Order 13132 does not apply to this action. PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 23651 Executive Order 13175: Consultation and Coordination With Indian Tribal Governments This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP EPA is proposing to disapprove would not 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. Thus, Executive Order 13175 does not apply to this action. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5–501 of the Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it because it is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997). This proposed SIP disapproval under section 110 and subchapter I, part D, of the CAA will not create any new regulations but simply disapproves certain State requirements for inclusion into the SIP. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use This action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. National Technology Transfer Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (‘‘NTTAA’’), Public Law 104–113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. E:\FR\FM\20APP1.SGM 20APP1 23652 Federal Register / Vol. 77, No. 77 / Friday, April 20, 2012 / Proposed Rules The EPA believes that this action is not subject to requirements of Section 12(d) of NTTAA because application of those requirements would be inconsistent with the CAA. ENVIRONMENTAL PROTECTION AGENCY Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations Approval and Promulgation of Air Quality Implementation Plans; Illinois; Leisure Properties LLC/D/B/A Crownline Boats; Adjusted Standard Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. Consistent with EPA guidance addressing Executive Order 12898, EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental health effects on minority or low-income populations because it increases the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population. States’ EPA-approved PSD and NSR regulations must meet certain minimum requirements promulgated by EPA, and these regulations apply to all affected populations within the State of Wisconsin. This action proposes to disapprove the portions of Wisconsin’s SIP that do not contain certain EPApromulgated minimum requirements. AGENCY: Statutory Authority The statutory authority for this action is provided by sections 110 of the CAA, as amended (42 U.S.C. 7410). tkelley on DSK3SPTVN1PROD with PROPOSALS List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Intergovernmental relations, Ozone, Particulate matter, Reporting and recordkeeping requirements. Dated: April 9, 2012. Susan Hedman, Regional Administrator, Region 5. [FR Doc. 2012–9608 Filed 4–19–12; 8:45 am] BILLING CODE 6560–50–P VerDate Mar<15>2010 16:09 Apr 19, 2012 Jkt 226001 40 CFR Part 52 FOR FURTHER INFORMATION CONTACT: [EPA–R05–OAR–2011–0944; FRL–9648–7] Environmental Protection Agency (EPA). ACTION: Proposed rule. EPA is proposing to approve into the Illinois State Implementation Plan (SIP) an adjusted standard for Leisure Properties LLC/D/B/A Crownline Boats (Crownline) at its West Frankfort, Illinois facility. On June 10, 2011, the Illinois Environmental Protection Agency submitted to EPA for approval an adjustment to the general rule, Use of Organic Material Rule, commonly known as the eight pound per hour rule, as it applies to emissions of volatile organic matter (VOM) from Crownline’s manufacturing facility. The adjusted standard relieves Crownline from being subject to the general rule for VOM emissions from its West Frankfort facility. EPA is proposing to approve this SIP revision because it will not interfere with attainment or maintenance of the ozone National Ambient Air Quality Standard. DATES: Comments must be received on or before May 21, 2012. ADDRESSES: Submit your comments, identified by Docket ID No. EPA–R05– OAR–2011–0944, by one of the following methods: 1. www.regulations.gov: Follow the on-line instructions for submitting comments. 2. Email: blakley.pamela@epa.gov. 3. Fax: (312) 692–2450. 4. Mail: Pamela Blakley, Chief, Control Strategies Section, Air Programs Branch (AR–18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. 5. Hand Delivery: Pamela Blakley, Chief, Control Strategies Section, Air Programs Branch (AR–18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Such deliveries are only accepted during the Regional Office normal hours of operation, and special arrangements should be made for deliveries of boxed information. The Regional Office official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays. Please see the direct final rule which is located in the Final Rules section of this SUMMARY: PO 00000 Frm 00016 Fmt 4702 Federal Register for detailed instructions on how to submit comments. Sfmt 4702 Carolyn Persoon, Environmental Engineer, Control Strategies Section, Air Programs Branch (AR–18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353–8290, persoon.carolyn@epa.gov. SUPPLEMENTARY INFORMATION: In the Final Rules section of this Federal Register, EPA is approving the state’s SIP submittal as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this rule, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. For additional information, see the direct final rule which is located in the Rules section of this Federal Register. Dated: February 29, 2012. Susan Hedman, Regional Administrator, Region 5. [FR Doc. 2012–9495 Filed 4–19–12; 8:45 am] BILLING CODE 6560–50–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 120409403–2403–01] RIN 0648–BB93 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Comprehensive Annual Catch Limit Amendment Supplement National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. AGENCY: E:\FR\FM\20APP1.SGM 20APP1

Agencies

[Federal Register Volume 77, Number 77 (Friday, April 20, 2012)]
[Proposed Rules]
[Pages 23647-23652]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-9608]


=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2007-1179; FRL-9661-5]


Approval of Air Quality Implementation Plans; Wisconsin; 
Disapproval of ``Infrastructure'' SIP With Respect to Oxides of 
Nitrogen as a Precursor to Ozone Provisions and New Source Review 
Exemptions for Fuel Changes as Major Modifications for the 1997 8-Hour 
Ozone and 24-Hour PM2.5 NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: Pursuant to EPA's authority under the Clean Air Act (CAA), EPA 
is proposing to disapprove two narrow portions of submissions made by 
the Wisconsin Department of Natural Resources (WDNR) to address the 
section 110(a)(1) and (2) requirements of the CAA, often referred to as 
the ``infrastructure'' State Implementation Plan (SIP). Specifically, 
we are proposing to disapprove the portions of WDNR's submissions 
intended to meet certain requirements of section 110(a)(2)(C) with 
respect to the 1997 8-hour ozone National Ambient Air Quality Standards 
(NAAQS) and 1997 24-hour PM2.5 NAAQS. Among other 
conditions, section 110(a)(2)(C) of the CAA requires states to 
correctly address oxides of nitrogen (NOX) as a precursor to 
ozone in their respective prevention of significant deterioration (PSD) 
programs. EPA is proposing to disapprove a portion of Wisconsin's 
submissions intended to satisfy this requirement. EPA is also proposing 
to disapprove a portion of Wisconsin's submissions because the SIP 
currently contains a new source review (NSR) exemption for fuel changes 
as major modifications where the source was capable of accommodating 
the change before January 6, 1975.

DATES: Comments must be received on or before May 21, 2012.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2007-1179, by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: aburano.douglas@epa.gov.
    3. Fax: (312) 408-2279.
    4. Mail: Douglas Aburano, Chief, Attainment Planning and 
Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental 
Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.
    5. Hand Delivery: Douglas Aburano, Chief, Attainment Planning and 
Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental 
Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. 
Such deliveries are only accepted during the Regional Office normal 
hours of operation, and special arrangements should be made for 
deliveries of boxed information. The Regional Office official hours of 
business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding 
Federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2007-1179. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or email. The 
www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email comment 
directly to EPA without going through www.regulations.gov your email 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA

[[Page 23648]]

recommends that you include your name and other contact information in 
the body of your comment and with any disk or CD-ROM you submit. If EPA 
cannot read your comment due to technical difficulties and cannot 
contact you for clarification, EPA may not be able to consider your 
comment. Electronic files should avoid the use of special characters, 
any form of encryption, and be free of any defects or viruses.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in 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, Environmental Engineer, 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 should I consider as I prepare my comments for EPA?
II. What is the background for this action?
III. What is EPA's evaluation of Wisconsin's infrastructure SIP for 
the 1997 ozone and 1997 PM2.5 NAAQS?
    A. NOX as a precursor to ozone provisions.
    B. Fuel Changes as Major Modifications
IV. What action is EPA taking?
V. Statutory and Executive Order Reviews

I. What should I consider as I prepare my comments for EPA?

    When submitting comments, remember to:
    1. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    2. Follow directions--EPA may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    3. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    4. Describe any assumptions and provide any technical information 
and/or data that you used.
    5. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    6. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    7. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    8. Make sure to submit your comments by the comment period deadline 
identified.

II. What is the background for this action?

    Under sections 110(a)(1) and (2) of the CAA, and implementing EPA 
guidance, states were required to submit either revisions to their 
existing EPA approved SIPs necessary to provide for implementation, 
maintenance, and enforcement of the 1997 ozone NAAQS and 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 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).
---------------------------------------------------------------------------

    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. Wisconsin made its infrastructure SIP submission for 
the 1997 ozone and PM2.5 NAAQS on December 12, 2007. The 
State provided supplemental submissions to EPA on January 24, 2011, and 
March 28, 2011.
    On April 28, 2011, EPA published its proposed action on the Region 
5 states' submissions (see 76 FR 23757). Notably, we proposed to find 
that Wisconsin had met the requirements of section 110(a)(2)(C) 
concerning state PSD programs generally, and in particular the 
requirement to include NOX as a precursor to ozone (see 76 
FR 23757 at 23760-23761), thereby satisfying the requirement that the 
State has an adequate PSD program pursuant to section 110(a)(2)(C) for 
both the 1997 ozone and 1997 PM2.5 NAAQS.\2\
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    \2\ EPA noted that each state's PSD program must meet certain 
basic program requirements, e.g., if a state lacks provisions needed 
to address NOX as a precursor to ozone, the provisions of 
section 110(a)(2)(C) requiring an adequate permitting program must 
be considered not to be met, irrespective of the pollutant being 
addressed in the infrastructure SIP submission.
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    During the comment period for the April 28, 2011, proposed 
rulemaking, EPA received three sets of comments. Two of the commenters 
observed that although we had proposed to approve Wisconsin's 
infrastructure SIP as meeting the correct requirements for 
NOX as a precursor to ozone in the State's PSD program, 
Wisconsin's PSD SIP does not contain the most recent PSD program 
revisions required by EPA for this purpose. One of the commenters also 
noted that Wisconsin's existing SIP does not meet current EPA 
requirements with respect to NSR because Wisconsin has not included 
fuel changes as ``major modifications'' in its NSR program for certain 
sources under certain conditions. A detailed discussion of these 
comments as they relate to Wisconsin's SIP will follow in the section 
entitled, ``What is EPA's evaluation of Wisconsin's infrastructure SIP 
for the 1997 ozone and 1997 PM2.5 NAAQS?''
    As a result of the comments, we did not promulgate final action on 
those two limited aspects of Wisconsin's infrastructure SIP in our July 
13, 2011, final rulemaking (see 76 FR 41075). We did, however, 
promulgate final action on all other applicable elements of Wisconsin's 
infrastructure SIP. In the July 13, 2011, rulemaking, we committed to 
address the issues raised in the comments concerning NOX as 
a precursor to ozone and the definition of ``major modification'' 
related to fuel changes for certain sources in Wisconsin in a separate 
action; this

[[Page 23649]]

proposed rulemaking and future final rulemaking serve as that action.

III. What is EPA's evaluation of Wisconsin's infrastructure SIP for the 
1997 ozone and 1997 PM2.5 NAAQS?

    As stated above, EPA promulgated final action on all applicable 
elements of Wisconsin's infrastructure SIP submissions for the 1997 
ozone and 1997 PM2.5 NAAQS except for the narrow issues 
related to section 110(a)(2)(C) with respect to the current regulatory 
requirements for NOX as a precursor to ozone in PSD 
permitting and the definition of ``major modification'' related to fuel 
changes for certain sources.\3\ The following discussion is applicable 
only to these two unresolved issues for Wisconsin's infrastructure SIP, 
and will not extend to the elements or requirements of sections 
110(a)(1) and (2) for which EPA has previously promulgated final 
action.
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    \3\ Although the evaluation of states' definitions of ``major 
modification'' related to fuel changes was not a criterion outlined 
in EPA's April 28, 2011 proposed rulemaking, this issue is 
intrinsically linked to states' PSD regulations, covered under 
section 110(a)(2)(C).
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A. NOX as a Precursor to Ozone Provisions

    During the public comment period following EPA's April 28, 2011 
proposed rulemaking, commenters disagreed with EPA's proposed 
conclusion that the SIP for Wisconsin currently meets the requirements 
for NOX as a precursor for ozone in permitting contexts. The 
commenters noted that in the proposed rulemaking, EPA stated that 
Wisconsin's PSD rules include NOX as a precursor to ozone, 
and that EPA cited the approval of this provision as occurring on May 
27, 1999 (see 64 FR 28745). The commenters disagreed with EPA's 
conclusion that the May 27, 1999, approval, specifically of NR 
405.02(21)(a), adequately addresses the issue of inclusion of 
NOX as a precursor to ozone.
    After careful consideration of the comments, we have concluded that 
the commenters were correct on this point because the current EPA 
approved SIP for the state does not contain specific SIP revisions for 
the PSD program required by EPA. On November 29, 2005, EPA published 
the ``Final Rule to Implement the 8-Hour Ozone National Ambient Air 
Quality Standard--Phase 2; Final Rule to Implement Certain Aspects of 
the 1990 Amendments Relating to New Source Review and Prevention of 
Significant Deterioration as They Apply in Carbon Monoxide, Particulate 
Matter, and Ozone NAAQS; Final Rule for Reformulated Gasoline'' (Phase 
2 Rule) (see 70 FR 71612). One aspect of the Phase 2 Rule was the 
specific requirement to identify NOX as an explicit ozone 
precursor (see 70 FR 71612 at 71679, 71699-71700). This requirement was 
codified in 40 CFR 51.166, and consisted of the following: \4\
---------------------------------------------------------------------------

    \4\ Similar changes were codified in 40 CFR 52.21.
---------------------------------------------------------------------------

    40 CFR 51.166 (b)(1)(ii): A major source that is major for volatile 
organic compounds or NOX shall be considered major for 
ozone;
    40 CFR 51.166 (b)(2)(ii): Any significant emissions increase (as 
defined at paragraph (b)(39) of this section) from any emissions units 
or net emissions increase (as defined in paragraph (b)(3) of this 
section) at a major stationary source that is significant for volatile 
organic compounds or NOX shall be considered significant for 
ozone;
    40 CFR 51.166 (b)(23)(i): Ozone: 40 tons per year of volatile 
organic compounds or nitrogen oxides;
    40 CFR 51.166 (b)(49)(i): Any pollutant for which a national 
ambient air quality standard has been promulgated and any constituents 
or precursors for such pollutants identified by the Administrator 
(e.g., volatile organic compounds and NOX) are precursors 
for ozone; and
    40 CFR 51.166 (i)(5)(i)(e) footnote 1: No de minimis air quality 
level is provided for ozone. However, any net emissions increase of 100 
tons per year or more of volatile organic compounds or nitrogen oxides 
subject to PSD would be required to perform an ambient impact analysis, 
including the gathering of air quality data.
    The Phase 2 Rule required that states submit SIP revisions 
incorporating the requirements of the rule, including these specific 
NOX as a precursor to ozone provisions, by June 15, 2007 
(see 70 FR 71612 at 71683).
    EPA believes that states' SIPs do not meet current structural 
requirements for the PSD program, and thus do not meet the 
infrastructure SIP requirements relevant to section 110(a)(2)(C), 
unless states have made these revisions required in 2007. Thus, states 
that did not incorporate the changes specific to identifying 
NOX as a precursor to ozone required by the Phase 2 Rule 
were included in EPA's March 27, 2008 ``Completeness Findings for 
Section 110(a) State Implementation Plans for the 8-Hour Ozone NAAQS'' 
and received a finding of failure to submit related to section 
110(a)(2)(C) for this reason (see 73 FR 16205). Wisconsin was not 
included in the March 27, 2008 findings notice.
    Similarly, consistent with the Phase 2 Rule, EPA has disapproved 
portions of other states' infrastructure SIPs on the basis that they 
have not explicitly identified NOX as a precursor to ozone. 
Notably, we disapproved the portion of Montana's infrastructure SIP 
with respect to this requirement of section 110(a)(2)(C) on July 22, 
2011 (see 76 FR 43918). EPA also finalized a partial Federal 
Implementation Plan (FIP) on August 8, 2011, which included provisions 
that explicitly include NOX as a precursor to ozone in the 
North Coast Unified Air Quality Management District of California (see 
76 FR 48006). Likewise, EPA has acted on portions of the SIP submission 
required by the Phase 2 Rule in conjunction with acting on a state's 
infrastructure SIP submission. For example, EPA promulgated final 
approval with respect to South Dakota's revisions to its PSD program 
identifying NOX as a precursor to ozone consistent with the 
requirements of the Phase 2 Rule concurrently with final action on 
South Dakota's infrastructure SIP for the 1997 ozone NAAQS.\5\
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    \5\ EPA's proposed action for South Dakota was published on May 
12, 2011 (see 76 FR 27622), and our final action for South Dakota 
was published on July 22, 2011 (see 76 FR 43912).
---------------------------------------------------------------------------

    Therefore, based on EPA's own regulations, submission deadlines, 
and actions germane to the explicit identification of NOX as 
a precursor to ozone in Federally approved PSD programs, we are 
proposing to disapprove the portions of Wisconsin's infrastructure SIP 
submission with respect to the NOX as a precursor to ozone 
provision requirements of section 110(a)(2)(C) for the 1997 ozone and 
PM2.5 NAAQS.

B. Fuel Changes as Major Modifications

    During the comment period following EPA's April 28, 2011, proposed 
rulemaking, one commenter argued that Wisconsin's existing SIP is 
deficient for purposes of section 110(a)(2)(C) because it does not meet 
current EPA requirements with respect to the NSR program. The commenter 
noted that the NSR program requires states to adopt definitions that 
are identical to, or more stringent than, EPA's definitions. Contrary 
to EPA's definition, the commenter asserted that Wisconsin has not 
included fuel changes as ``major modifications'' in its NSR program. 
The commenter cited a 2009 letter from EPA to the state requesting that 
the state update its regulations to address this specific issue.
    The definition of ``major modification'' as it relates to PSD is

[[Page 23650]]

generally defined in NR 405.02(21) of Wisconsin's SIP. The exemptions 
to ``physical change'' are contained at NR 405.02(21)(b). One exemption 
is the ability of a source capable of accommodating different types of 
fuels before 1975 to switch the type of fuel burned, unless strictly 
prohibited by a restriction in a permit established after 1975.
    EPA regulations contained at 40 CFR 51.166(b)(2)(iii)(e)(1) and (2) 
specifically prescribe when use of an alternative fuel is not 
considered a physical change for purposes of defining a ``major 
modification.'' These regulations require that a physical change or 
change in the method shall not include use of an alternative fuel or 
raw material by a stationary source which:

    The source was capable of accommodating before January 6, 1975, 
unless such change would be prohibited under any federally 
enforceable permit condition which was established after January 6, 
1975 pursuant to 40 CFR 52.21 or under regulations approved pursuant 
to 40 CFR [part 51], subpart I, or 40 CFR 51.166; or
    The source is approved to use [the fuel] under any permit issued 
under 40 CFR 52.21 or under regulations approved pursuant to 40 CFR 
51.166.

    The Wisconsin regulations set out the conditions for the fuel 
change exemption as follows:

    The source was capable of accommodating the alternative fuel or 
raw material before January 6, 1975, unless the change would be 
prohibited under any federally enforceable permit condition which 
was established after January 6, 1975 pursuant to this chapter or 
ch. NR 406 or 408 or under an operation permit issued pursuant to 
ch. NR 407.
    [Or, t]he source is approved to use the alternative fuel or raw 
material under any permit issued under this chapter or ch. NR 406, 
407, or 408. See proposed NR 405.02(21)(b)5.

    The Wisconsin rule is similar to the Federal rule, but differs by 
substituting references to Wisconsin Administrative Code sections, 
omitting EPA's phrase ``pursuant to 40 CFR 52.21 or under regulations 
approved pursuant to 40 CFR [part 51], subpart I, or 40 CFR 51.166.'' 
The commenter objected that failure to cite Federal regulations results 
in the loss of prohibitions on fuel use exemptions that may have been 
contained in Federally-issued PSD permits, issued prior to EPA's 
approval of Wisconsin's PSD SIP. The result, the commenter noted that 
Wisconsin's rule allows more exemptions to the definition of ``major 
modification'' than allowed by the Federal rules.
    After careful consideration of the comment, we have concluded that 
the commenters were correct on this point because the current EPA 
approved SIP for the state does contain a specific provision that is 
inconsistent with the NSR program required by EPA. Because this 
provision is relevant to a structural requirement of the PSD permitting 
program, EPA believes that this issue affects the approvability of the 
infrastructure SIP submissions for purposes of meeting the requirements 
of section 110(a)(2)(C).
    EPA notes that this is an issue that has previously arisen and that 
the State has acknowledged and agreed to address it. The Sierra Club 
first raised a concern about this issue in the context of EPA's 
approval of Wisconsin's NSR Reform regulations on December 17, 2008 
(see 73 FR 76560). In that final rulemaking, EPA stated that the 
definition of ``major modification'' and the associated fuel use 
prohibitions were not part of the specific SIP submission being acted 
upon by EPA at that time. However, we did agree that the language in 
the Wisconsin SIP needed to be revised (see 73 FR 76560 at 76566).
    On June 17, 2009, EPA requested that the State revise its 
regulatory language in NR 405.02(21)(b)(5) and (6), and NR 
408.02(20)(e)(5) and (6), to include permit conditions in Federally-
issued permits. On June 1, 2011, WDNR committed to begin the rulemaking 
process necessary to do so within 120 days by including the requested 
revision in its next major rulemaking. However, WDNR's commitment did 
not include a date certain by which it would complete the requested 
revision of the State's regulations. As a result, EPA may not at this 
time promulgate an approval or conditional approval of the section 
110(a)(2)(C) portion of Wisconsin's infrastructure SIP for the 1997 
ozone and PM2.5 NAAQS with respect to this narrow issue.
    After reviewing Wisconsin's current SIP in light of EPA's own 
regulations and request to the State to make appropriate revisions to 
the SIP necessary to address this issue, we are proposing to disapprove 
Wisconsin's infrastructure SIP submissions for the 1997 ozone and 
PM2.5 NAAQS with respect to the NSR exemption for fuel 
changes as ``major modifications'' where the source was capable of 
accommodating the change before January 6, 1975. We note that this 
disapproval is a narrow one, and limited to the specific state 
regulatory language concerning the exemption.

IV. What action is EPA taking?

    EPA is proposing to disapprove two narrow portions of Wisconsin's 
infrastructure SIP submissions for the 1997 ozone and PM2.5 
NAAQS with respect to section 110(a)(2)(C). Specifically, we are 
proposing to disapprove the portions of Wisconsin's submissions because 
the current SIP does not satisfy the requirements of the Phase 2 Rule 
for explicit identification of NOX as a precursor to ozone 
in PSD permitting. We are also proposing to disapprove the portions of 
Wisconsin's submissions because the current SIP contains an 
impermissible NSR exemption for fuel changes as ``major modifications'' 
where the source was capable of accommodating the change before January 
6, 1975. These grounds for disapproval are narrow, and pertain only to 
these specific deficiencies in Wisconsin's SIP. We anticipate that the 
State will be able to rectify these issues readily and we will work 
with the State to rectify these issues promptly.
    Under section 179(a) of the CAA, final disapproval of a submission 
that addresses a requirement of a Part D Plan (section 171--section 193 
of the CAA), or is required in response to a finding of substantial 
inadequacy as described in section 110(k)(5) starts a sanction clock. 
The provisions in the submissions we are disapproving were not 
submitted by Wisconsin to meet either of those requirements. Therefore, 
if EPA takes final action to disapprove these submissions, no sanctions 
under section 179 will be triggered.
    The full or partial disapproval of a SIP revision triggers the 
requirement under section 110(c) that EPA promulgate a FIP no later 
than two years from the date of the disapproval unless the State 
corrects the deficiency, and the Administrator approves the plan or 
plan revision before the Administrator promulgates such FIP. As 
previously mentioned, EPA anticipates that WDNR will make a submission 
rectifying each of these deficiencies. Further, EPA anticipates acting 
on WDNR's submissions within the two year time frame prior to our FIP 
obligation on these very narrow issues. In the interim, EPA expects 
WDNR to treat and explicitly identify NOX as a precursor to 
ozone for PSD permitting consistent with the requirements of the Phase 
2 Rule, and to ensure adherence to the prohibitions on fuel use 
exemptions in Federally-issued permits.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. In this case EPA is

[[Page 23651]]

disapproving two aspects of the Wisconsin SIP that fail to meet Federal 
requirements.
Executive Order 12866: Regulatory Planning and Review
    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and, therefore, is 
not subject to review under the Executive Order.
Paperwork Reduction Act
    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., 
because this proposed SIP disapproval under section 110 and subchapter 
I, part D of the CAA will not create any new information collection 
burdens but simply disapproves certain State requirements for inclusion 
into the SIP. Burden is defined at 5 CFR 1320.3(b).
Regulatory Flexibility Act
    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions. For purposes of assessing the impacts of today's rule on 
small entities, small entity is defined as: (1) A small business as 
defined by the Small Business Administration's (SBA) regulations at 13 
CFR 121.201; (2) a small governmental jurisdiction that is a government 
of a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise that is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
impact on a substantial number of small entities. This rule does not 
impose any requirements or create impacts on small entities. This 
proposed SIP disapproval under section 110 and subchapter I, part D, of 
the CAA will not create any new requirements but simply disapproves 
certain State requirements for inclusion into the SIP. Accordingly, it 
affords no opportunity for EPA to fashion for small entities less 
burdensome compliance or reporting requirements or timetables or 
exemptions from all or part of the rule. The fact that the CAA 
prescribes that various consequences (e.g., higher offset requirements) 
may or will flow from this disapproval does not mean that EPA either 
can or must conduct a regulatory flexibility analysis for this action. 
Therefore, this action will not have a significant economic impact on a 
substantial number of small entities.
    We continue to be interested in the potential impacts of this 
proposed rule on small entities and welcome comments on issues related 
to such impacts.
Unfunded Mandates Reform Act
    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for State, local, or tribal governments or the private 
sector.'' EPA has determined that the proposed disapproval action does 
not include a Federal mandate that may result in estimated costs of 
$100 million or more to either State, local, or tribal governments in 
the aggregate, or to the private sector. This action proposes to 
disapprove pre-existing requirements under State or local law, and 
imposes no new requirements. Accordingly, no additional costs to State, 
local, or tribal governments, or to the private sector, result from 
this action.
Executive Order 13132: Federalism
    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This action does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132, because it merely disapproves 
certain State requirements for inclusion into the SIP and does not 
alter the relationship or the distribution of power and 
responsibilities established in the CAA. Thus, Executive Order 13132 
does not apply to this action.
Executive Order 13175: Consultation and Coordination With Indian Tribal 
Governments
    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP 
EPA is proposing to disapprove would not 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. Thus, 
Executive Order 13175 does not apply to this action.
Executive Order 13045: Protection of Children From Environmental Health 
and Safety Risks
    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because it because it is 
not an economically significant regulatory action based on health or 
safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 
1997). This proposed SIP disapproval under section 110 and subchapter 
I, part D, of the CAA will not create any new regulations but simply 
disapproves certain State requirements for inclusion into the SIP.
Executive Order 13211: Actions That Significantly Affect Energy Supply, 
Distribution, or Use
    This action is not subject to Executive Order 13211 (66 FR 28355, 
May 22, 2001) because it is not a significant regulatory action under 
Executive Order 12866.
National Technology Transfer Advancement Act
    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. NTTAA directs EPA to 
provide Congress, through OMB, explanations when the Agency decides not 
to use available and applicable voluntary consensus standards.

[[Page 23652]]

    The EPA believes that this action is not subject to requirements of 
Section 12(d) of NTTAA because application of those requirements would 
be inconsistent with the CAA.
Executive Order 12898: Federal Actions To Address Environmental Justice 
in Minority Populations and Low-Income Populations
    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    Consistent with EPA guidance addressing Executive Order 12898, EPA 
has determined that this proposed rule will not have disproportionately 
high and adverse human health or environmental health effects on 
minority or low-income populations because it increases the level of 
environmental protection for all affected populations without having 
any disproportionately high and adverse human health or environmental 
effects on any population, including any minority or low-income 
population. States' EPA-approved PSD and NSR regulations must meet 
certain minimum requirements promulgated by EPA, and these regulations 
apply to all affected populations within the State of Wisconsin. This 
action proposes to disapprove the portions of Wisconsin's SIP that do 
not contain certain EPA-promulgated minimum requirements.
Statutory Authority
    The statutory authority for this action is provided by sections 110 
of the CAA, as amended (42 U.S.C. 7410).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Ozone, Particulate matter, Reporting and recordkeeping 
requirements.

    Dated: April 9, 2012.
Susan Hedman,
Regional Administrator, Region 5.
[FR Doc. 2012-9608 Filed 4-19-12; 8:45 am]
BILLING CODE 6560-50-P
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