Air Plan Approval; Wisconsin; Infrastructure SIP Requirements for the 2012 PM2.5, 95043-95047 [2016-31017]

Download as PDF 95043 Federal Register / Vol. 81, No. 248 / Tuesday, December 27, 2016 / Rules and Regulations Area for the 1997 Annual PM2.5 NAAQS’’ at the end of the table to read as follows: § 52.920 * Identification of plan. * * (e) * * * * * EPA-APPROVED KENTUCKY NON-REGULATORY PROVISIONS Name of non-regulatory SIP provision Applicable geographic or nonattainment area * * * RACM for the Kentucky porBullitt and Jefferson Counties tion of Louisville, KY-IN Area for the 1997 Annual PM2.5 NAAQS. [FR Doc. 2016–31023 Filed 12–23–16; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R05–OAR–2015–0529; FRL–9957–16– Region 5] Air Plan Approval; Wisconsin; Infrastructure SIP Requirements for the 2012 PM2.5 NAAQS Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: The Environmental Protection Agency (EPA) is finalizing approval of some elements of a July 13, 2015 state implementation plan (SIP) submittal from the Wisconsin Department of Natural Resources (WDNR) regarding the infrastructure requirements of section 110 of the Clean Air Act (CAA) for the 2012 fine particulate matter (PM2.5) National Ambient Air Quality Standards (NAAQS). The infrastructure requirements are designed to ensure that the structural components of each state’s air quality management program are adequate to meet the state’s responsibilities under the CAA. The proposed rulemaking associated with this final action was published on February 19, 2016, and EPA received adverse comments during the comment period, which ended on March 21, 2016. Responses to comments are included below. In this rulemaking, EPA is not taking action on Wisconsin’s satisfaction of the infrastructure requirements of CAA section 110(a)(2)(F), also referred to as ‘‘element F,’’ which pertains to stationary source monitoring and reporting. EPA proposed approval of and received an adverse comment on our proposed approval of element F, which will be asabaliauskas on DSK3SPTVN1PROD with RULES SUMMARY: VerDate Sep<11>2014 19:06 Dec 23, 2016 Jkt 241001 State submittal date/ effective date * 08/09/2016 EPA approval date * * 12/27/2016, [Insert citation of publication]. addressed in a separate rulemaking. In this rulemaking we respond to the remainder of the comments we received on our initial proposed rulemaking, which includes those comments not pertaining to element F, and finalize as initially proposed our approval of the other elements of Wisconsin’s 2012 PM2.5 infrastructure SIP. DATES: This final rule is effective on January 26, 2017. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA–R05–OAR–2015–0529. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either through www.regulations.gov or 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 Jenny Liljegren, Physical Scientist, at (312) 886–6832 before visiting the Region 5 office. FOR FURTHER INFORMATION CONTACT: Jenny Liljegren, Physical Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886–6832, Liljegren.Jennifer@epa.gov. SUPPLEMENTARY INFORMATION: Throughout this document whenever ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean PO 00000 Frm 00135 Fmt 4700 Sfmt 4700 Explanations * EPA. This supplementary information section is arranged as follows: I. What is the background of this SIP submittal? II. Responses to Comments Received on EPA’s Proposed Rulemaking III. What action is EPA taking? IV. Statutory and Executive Order Reviews I. What is the background of this SIP submittal? A. What state SIP submittal does this rulemaking address? This rulemaking addresses a July 13, 2015 infrastructure SIP submittal from WDNR for the 2012 PM2.5 1 NAAQS. B. Why did the State make this SIP submittal? Under section 110(a)(1) and (2) of the CAA, states are required to submit infrastructure SIPs to ensure that their SIPs provide for implementation, maintenance, and enforcement of the NAAQS, including the 2012 PM2.5 NAAQS. This submittal must contain any revisions needed for meeting the applicable SIP requirements of section 110(a)(2) or certifications that the state’s existing SIP for the NAAQS already meets those requirements. EPA highlighted this statutory requirement in an October 2, 2007 guidance document entitled ‘‘Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 National Ambient Air Quality Standards’’ and has issued additional guidance documents, the most recent on September 13, 2013, entitled ‘‘Guidance on Infrastructure State Implementation Plan (SIP) Elements under CAA Sections 110(a)(1) and 110(a)(2).’’ The SIP submittal referenced in this rulemaking pertains to the applicable 1 PM 2.5 refers to particles with an aerodynamic diameter of less than or equal to 2.5 micrometers, oftentimes referred to as ‘‘fine’’ particles. E:\FR\FM\27DER1.SGM 27DER1 95044 Federal Register / Vol. 81, No. 248 / Tuesday, December 27, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES requirements of section 110(a)(1) and (2) and addresses the 2012 PM2.5 NAAQS. C. What is the scope of this rulemaking? EPA is acting upon the SIP submittal from WDNR that addresses the infrastructure requirements of CAA section 110(a)(1) and (2) for the 2012 PM2.5 NAAQS. The requirement for states to make SIP submittals of this type arises out of CAA section 110(a)(1). States must make SIP submittals ‘‘within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),’’ and these SIP submittals are to provide for the ‘‘implementation, maintenance, and enforcement’’ of such NAAQS. The statute directly imposes on states the duty to make these SIP submittals, and the requirement to make the submittal is not conditioned upon EPA’s taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that ‘‘[e]ach such plan’’ submittal must address. EPA has historically referred to these SIP submittals made for the purpose of satisfying the requirements of CAA section 110(a)(1) and (2) as ‘‘infrastructure SIP’’ submittals. Although the term ‘‘infrastructure SIP’’ does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submittal from submittals that are intended to satisfy other SIP requirements under the CAA, such as SIP submittals that address the nonattainment planning requirements of part D of Title I of the CAA, the Prevention of Significant Deterioration (PSD) requirements of part C of title I of the CAA, and ‘‘regional haze SIP’’ submittals required to address the visibility protection requirements of section 169A of the CAA. This rulemaking will not cover three substantive areas that are not integral to acting on a state’s infrastructure SIP submittals: (i) Existing provisions related to excess emissions during periods of start-up, shutdown, or malfunction (‘‘SSM’’) at sources that may be contrary to the CAA and EPA’s policies addressing such excess emissions; (ii) existing provisions related to ‘‘director’s variance’’ or ‘‘director’s discretion,’’ which purport to permit revisions to SIP-approved emissions limits with limited public notice or without requiring further approval by EPA and may be contrary to the CAA; and, (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA’s ‘‘Final NSR Improvement VerDate Sep<11>2014 19:06 Dec 23, 2016 Jkt 241001 Rule,’’ 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007). Instead, EPA has the authority to address each one of these substantive areas in separate rulemakings. A detailed history, interpretation, and rationale, as they relate to infrastructure SIP requirements, can be found in EPA’s May 13, 2014, proposed rule entitled, ‘‘Approval and Promulgation of Air Quality Implementation Plans; Illinois, Michigan, Minnesota, WDNR; Infrastructure SIP Requirements for the 2008 Lead NAAQS’’ in the section, ‘‘What is the scope of this rulemaking?’’ (see 79 FR 27241 at 27242–27245). II. Responses to Comments Received on EPA’s Proposed Rulemaking The public comment period for our proposed rulemaking with respect to WDNR’s satisfaction of the infrastructure SIP requirements for the 2012 PM2.5 NAAQS closed on March 21, 2016. EPA received two comment letters, one from Clean Wisconsin and one from Midwest Environmental Advocates (MEA). A synopsis of the comments contained in these letters and EPA’s responses are provided below. As mentioned previously, EPA is not taking action on CAA section 110(a)(2)(F) in this rulemaking. EPA’s action on element F and our response to the comment from MEA pertaining to our proposed approval of element F will be addressed in a separate rulemaking. Comment 1: With regard to EPA proposing that WDNR has met the infrastructure SIP requirements of section 110(a)(2)(A) for the 2012 PM2.5 NAAQS, MEA comments that particulate and visible emissions limitations in Wisconsin Administrative Code Chapters NR 415 and NR 431 are outdated, do not reflect the current state of the art in air pollution control methods, are insufficient to ensure compliance with the PM2.5 NAAQS, and must be supplemented to meet Federal standards. Part of this issue stems from the lack of information about PM2.5 emission factors, control measures, and public exposure. MEA urges EPA to require WDNR to use its enforcement program to expand upon the lack of knowledge of PM2.5 emission factors by requiring testing and monitoring in lieu of or in addition to fines when settling enforcement cases. Response 1: Section 110(a)(2)(A) requires SIPs to include enforceable emission limits and other control measures, means or techniques, as well as schedules and timetables for compliance, and other related matters. EPA has long interpreted these requirements as being due when PO 00000 Frm 00136 Fmt 4700 Sfmt 4700 nonattainment planning requirements are due.2 3 Thus, in the context of an infrastructure SIP, EPA is not evaluating the existing SIP provisions for the purpose of emissions limits and control measures, which are connected with nonattainment planning requirements. Instead, EPA is only evaluating whether the state’s SIP has the basic structural provisions required for the implementation of the NAAQS. As explained in the proposed rule, EPA finds that WDNR has met the infrastructure SIP requirements of section 110(a)(2)(A) with respect to the 2012 PM2.5 NAAQS. Section 110(a)(2)(C) requires each state to provide a program for enforcement of all SIP measures. Under Wis. Stats. 285.13, WDNR has the authority to impose fees and penalties to ensure that required measures are ultimately implemented. Wis. Stats. 285.83 and Wis. Stats. 285.87 provide WDNR with the authority to take enforcement actions and assess penalties. While, in general, any efforts to expand upon the lack of knowledge of PM2.5 emission factors via testing and monitoring would be extremely useful for air quality planning, MEA’s suggestion goes beyond the scope of this rulemaking and the minimum requirements under the CAA. EPA finds that WDNR’s enforcement program, as it currently exists, has met the enforcement of SIP measures requirements of section 110(a)(2)(C) with respect to the 2012 PM2.5 NAAQS. Accordingly, in this rulemaking, EPA is not requiring WDNR to use its enforcement program to expand upon the lack of knowledge of PM2.5 emission factors—which is suggested by MEA—in lieu of or addition to fines when settling enforcement cases. Comment 2: With regard to EPA proposing that WDNR has met the infrastructure SIP requirements of section 110(a)(2)(B) with respect to the 2012 PM2.5 NAAQS, MEA comments that WDNR’s PM2.5 monitoring network only includes 20 monitoring sites for PM2.5 and is insufficient to characterize public exposure to PM2.5. EPA should expand the ambient air monitoring network for PM2.5 by using its authority to require industrial facilities to install and operate ambient monitors where 2 See, e.g., EPA’s final rule on ‘‘National Ambient Air Quality Standards for Lead.’’ 73 FR 66964 at 67034. 3 Currently, Wisconsin has no nonattainment areas for the 2012 PM2.5 NAAQS, and the only nonattainment area in Wisconsin for the 2006 PM2.5 NAAQS—the Milwaukee-Racine Nonattainment Area, including Milwaukee, Racine, and Waukesha counties—has been redesignated (79 FR 22415) to a maintenance area. E:\FR\FM\27DER1.SGM 27DER1 Federal Register / Vol. 81, No. 248 / Tuesday, December 27, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES members of the public are likely to be exposed to PM2.5, especially at possible NAAQS hotspots. Response 2: WDNR submits annual monitoring network plans to EPA. EPA approved WDNR’s 2016 Annual Air Monitoring Network Plan on October 26, 2015, and EPA approved (with exceptions) 4 WDNR’s 2017 Annual Air Monitoring Network Plan on October 31, 2016. EPA’s review of the annual monitoring plan includes EPA’s determination that the state monitors air quality at appropriate locations throughout the state in accordance with 40 CFR part 58. EPA’s October 26, 2015 approval of WDNR’s 2016 Annual Air Monitoring Network Plan and EPA’s October 31, 2016 approval of WDNR’s 2017 Annual Air Monitoring Network Plan indicates that WDNR has met the requirements of 40 CFR part 58 with respect to its 2016 and 2017 PM2.5 monitoring networks. Therefore, EPA finds that Wisconsin has met the infrastructure SIP requirements of section 110(a)(2)(B) with respect to the 2012 PM2.5 NAAQS. WDNR’s Annual Network Plan can be found at http:// WDNR.wi.gov/topic/AirQuality/ Monitor.html. Comment 3: MEA comments that ‘‘Compounding the issue of insufficient monitoring is the fact that the WDNR does not require industrial facilities to provide and report their annual PM2.5 emissions like they do for PM and PM10. Each facility is in the best position to know their actual emissions from the previous year, so not requiring a report at the end of the year makes it even more difficult to identify any violations. 4 The exceptions do not pertain to Wisconsin’s PM2.5 monitoring network. There are two exceptions to EPA’s approval of Wisconsin’s 2017 Annual Air Monitoring Network Plan. The first exception pertains to Wisconsin’s request to shorten the ozone season which was extended with the revision of the ozone NAAQS in October 2015 (40 CFR part 58, section 4.1(i)). WDNR must plan to monitor for ozone, statewide, during the required ozone season in effect January 1, 2017. EPA’s approval of Wisconsin’s 2017 Annual Air Monitoring Network Plan does not constitute approval of the shortened ozone season requested by Wisconsin. The second exception pertains to a nitrogen dioxide (NO2) monitor. Wisconsin may discontinue/shut-down the Photochemical Air Monitoring Station (PAMS) at the Southeast Regional office (SER/DNR) as per EPA’s October 16, 2015 revisions to the PAMS monitoring requirements with the exception of the NO2 monitor at this site. 40 CFR part 58, appendix D, section 4.3 requires the Milwaukee-Waukesha-West Allis metropolitan statistical area to operate two NO2 monitoring sites. One site should be collocated with a near-road site and a second representative of areawide NO2 emissions. Wisconsin meets the nearroad station NO2 monitoring requirement with the College Avenue near-road station and the area-wide monitoring requirement with the NO2 monitoring conducted at the PAMS at SER/DNR. Therefore, Wisconsin may discontinue/shut-down the PAMS at SER/DNR with the exception of the NO2 monitor. VerDate Sep<11>2014 19:06 Dec 23, 2016 Jkt 241001 The information needed to make that assessment would need to be sought out independently for each facility in the entire state, which requires a great deal more work than reading a report and comparing it to the limit. States such as Indiana and Iowa already have this requirement in place, so it has been successfully implemented elsewhere, and there is no reason it cannot be done in Wisconsin as well.’’ Response 3: EPA will respond to this comment and address in a separate rulemaking Wisconsin’s satisfaction of CAA section 110(a)(2)(F), also referred to as ‘‘element F,’’ which pertains to stationary source monitoring and reporting. Comment 4: (Note that we have grouped the following comments from MEA and Clean Wisconsin that are similar in content into a single comment and response section entitled ‘‘Comment 4.’’) MEA is concerned that WDNR underutilizes air quality modeling as a tool for determining facility-specific PM2.5 emissions limitations and that this may result in violations of the PM2.5 NAAQS. MEA, in its comment letter, provides examples of WDNR permits that set PM2.5 limits equal to PM10 limits without conducting PM2.5 modeling. MEA notes that the current WDNR guideline for permit renewals suggests that if there has been no change in historical particulate emissions since the last operation permit was issued, no modeling is necessary to verify compliance with the NAAQS. MEA also notes that WDNR registration permits only require that emission stacks be built to a certain height that is taller than any surrounding building, rather than require a modeling analysis of PM2.5 emissions. Both MEA and Clean Wisconsin submitted comments regarding WDNR’s ‘‘Guidance for Including PM2.5 in Air Pollution Control Permit Applications’’ (Guidance). Clean Wisconsin notes the recently issued Guidance changes WDNR’s methodology for calculating PM2.5 emissions from certain sources and uses a weight-of-evidence approach rather than modeling for permits for certain sources. Thus, the Guidance will affect WDNR’s ability to adequately model and track PM2.5 emissions and compromise the quality of data and analysis in determining compliance with the PM2.5 NAAQS. Clean Wisconsin believes the Guidance undermines WDNR’s ability to provide air quality modeling data to accurately predict effects on air quality of PM2.5 emissions as required by section 110(a)(2)(K). MEA believes the WDNR’s weight-of-evidence approach will not PO 00000 Frm 00137 Fmt 4700 Sfmt 4700 95045 protect WDNR residents from exposure to unhealthy concentrations of PM2.5 and will fail to ensure that facilities are in compliance with the PM2.5 NAAQS. Clean Wisconsin recommends, at a minimum, that WDNR conduct additional monitoring of direct PM2.5 before it can justify changes to its methodology for estimating PM2.5 emissions. Clean Wisconsin believes the Guidance serves to describe a general policy of the WDNR, carries the weight and effect of a rule, and impacts WDNR’s implementation of the PM2.5 NAAQS. MEA believes the Guidance is essentially a rule, as defined by administrative law, and because WDNR did not follow its rulemaking process, the Guidance is an unlawful rule. Clean Wisconsin requests that EPA require WDNR to withdraw the Guidance as a condition for approval of WDNR’s 2012 PM2.5 infrastructure SIP. Response 4: Section 110(a)(2)(K) requires SIPs to provide for the performance of air quality modeling for predicting effects on air quality of emissions from any NAAQS pollutant and the submission of such data to EPA upon request. EPA’s 2013 infrastructure SIP guidance indicates that the best practice would be for an air agency to submit the statutory or regulatory provisions that provide the air agency or official with the authority to perform the following actions along with a narrative explanation of how the provisions meet the requirements of section 110(a)(2)(K): (1) Conduct air quality modeling to predict the effect on ambient air quality of any emissions of any air pollutant for which a NAAQS has been promulgated, and (2) provide such modeling data to the EPA Administrator upon request. EPA’s 2013 infrastructure SIP guidance indicates EPA recognizes that some air agencies may have general authorizing provisions that do not enumerate specific activities but do implicitly authorize the air agency to perform such activities, in which case inclusion of those provisions would meet the intent of this best practice. WDNR maintains the capability and the authority to perform computer modeling of the air quality impacts of emissions of all criteria pollutants, including both source-oriented dispersion models and more regionally directed complex photochemical grid models. Wis. Stats. 285.11, Wis. Stats. 285.13, and Wis. Stats. 285.60–285.69 authorize WDNR to perform air quality modeling. Therefore EPA finds that WDNR has met the infrastructure SIP requirements of section 110(a)(2)(K) with respect to the 2012 PM2.5 NAAQS. E:\FR\FM\27DER1.SGM 27DER1 95046 Federal Register / Vol. 81, No. 248 / Tuesday, December 27, 2016 / Rules and Regulations III. What action is EPA taking? associated with this final action was published on February 19, 2016 (81 FR 8460), and EPA received comments during the comment period, which ended on March 21, 2016. EPA has responded to each of the comments received in the section above with the exception of ‘‘Comment 3,’’ which we intend to respond to in a separate rulemaking. EPA is taking final action to EPA is finalizing approval of most elements and deferring action on one element of a submittal from WDNR certifying that its current SIP is sufficient to meet the required infrastructure elements under section 110(a)(1) and (2) for the 2012 PM2.5 NAAQS. The proposed rulemaking approve, as proposed, most elements of WDNR’s submittal. EPA is not taking action on several elements of WDNR’s submittal that will be addressed in separate rulemakings. EPA’s actions for the state’s satisfaction of infrastructure SIP requirements, by element of section 110(a)(2) and NAAQS, are contained in the table below. Element 2012 PM2.5 (A)—Emission limits and other control measures ............................................................................................................................... (B)—Ambient air quality monitoring/data system ................................................................................................................................ (C)1—Program for enforcement of control measures ......................................................................................................................... (C)2—PSD ........................................................................................................................................................................................... (D)1—I Prong 1: Interstate transport—significant contribution ........................................................................................................... (D)2—I Prong 2: Interstate transport—interfere with maintenance ..................................................................................................... (D)3—II Prong 3: Interstate transport—prevention of significant deterioration ................................................................................... (D)4—II Prong 4: Interstate transport—protect visibility ...................................................................................................................... (D)5—Interstate and international pollution abatement ....................................................................................................................... (E)1—Adequate resources .................................................................................................................................................................. (E)2—State board requirements .......................................................................................................................................................... (F)—Stationary source monitoring and reporting ................................................................................................................................ (G)—Emergency power ....................................................................................................................................................................... (H)—Future SIP revisions .................................................................................................................................................................... (I)—Nonattainment planning requirements of part D .......................................................................................................................... (J)1—Consultation with government officials ...................................................................................................................................... (J)2—Public notification ....................................................................................................................................................................... (J)3—PSD ............................................................................................................................................................................................ (J)4—Visibility protection ..................................................................................................................................................................... (K)—Air quality modeling/data ............................................................................................................................................................. (L)—Permitting fees ............................................................................................................................................................................. (M)—Consultation and participation by affected local entities ............................................................................................................ A A A NA NA NA NA A A A A NA A A NA A A NA A A A A In the above table, the key is as follows: A .............. NA ............ D .............. Approve. No Action/Separate Rulemaking. Disapprove. asabaliauskas on DSK3SPTVN1PROD with RULES IV. Statutory and Executive Order Reviews. Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA’s role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action: • Is not a ‘‘significant regulatory action’’ subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011); • Does not impose an information collection burden under the provisions VerDate Sep<11>2014 20:23 Dec 23, 2016 Jkt 241001 of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4); • Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); • Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and • Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using PO 00000 Frm 00138 Fmt 4700 Sfmt 4700 practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. E:\FR\FM\27DER1.SGM 27DER1 Federal Register / Vol. 81, No. 248 / Tuesday, December 27, 2016 / Rules and Regulations This action is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 27, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements. Dated: December 13, 2016. Robert Kaplan, Acting Regional Administrator, Region 5. 40 CFR part 52 is amended as follows: PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: ■ Authority: 42 U.S.C. 7401 et seq. 2. Section 52.2591 is amended by adding paragraph (k) to read as follows: ■ § 52.2591 Section 110(a)(2) infrastructure requirements. asabaliauskas on DSK3SPTVN1PROD with RULES * * * * * (k) Approval—In a July 13, 2015, submission, WDNR certified that the state has satisfied the infrastructure SIP requirements of section 110(a)(2)(A) through (H), and (J) through (M) for the 2012 PM2.5 NAAQS. We are not taking action on the prevention of significant deterioration requirements related to section 110(a)(2)(C)(ii), (D)(i)(II), and (J), the transport provisions in section 110(a)(2)(D)(i)(I), and the stationary source monitoring and reporting requirements of section 110(a)(2)(F). We will address these requirements in a separate action. ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R02–OAR–2016–0478, FRL–9957–08– Region 2] Approval and Promulgation of Implementation Plans; New York Prevention of Significant Deterioration of Air Quality and Nonattainment New Source Review; Infrastructure State Implementation Plan Requirements Environmental Protection Agency. ACTION: Final rule. AGENCY: The Environmental Protection Agency (EPA) is taking final action to approve revisions to the New York State Implementation Plan (SIP) amending existing nonattainment New Source Review (NNSR) and attainment New Source Review (Prevention of Significant Deterioration of Air Quality, PSD) program requirements that the New York State Department of Environmental Conservation (NYSDEC) submitted to EPA on October 12, 2011. Specifically, the SIP revision includes new requirements pertaining to the regulation of particulate matter with an aerodynamic diameter less than or equal to 2.5 micrometer (PM2.5) and the regulation of Greenhouse Gases (GHGs) under New York’s Part 231, ‘‘New Source Review for New and Modified Facilities;’’ Part 201, ‘‘Permits and Registrations;’’ and amendments to Part 200, ‘‘General Provisions,’’ of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR). The SIP revision will make the SIP consistent with existing federal requirements. The EPA is also taking final action to approve certain elements of New York SIP revisions submitted to demonstrate that the State meets the requirements of section 110(a)(1) and (2) of the Clean Air Act (CAA) for the 2008 lead (Pb), 2008 ozone, and 2010 sulfur dioxide (SO2) national ambient air quality standards (NAAQS). SUMMARY: [FR Doc. 2016–31017 Filed 12–23–16; 8:45 am] This rule is effective on January 26, 2017. ADDRESSES: EPA has established a docket for this action under Docket ID number EPA–R02–OAR–2016–0478. All documents in the docket are listed on the http://www.regulations.gov Web site. BILLING CODE 6560–50–P FOR FURTHER INFORMATION CONTACT: DATES: Frank Jon, Air Programs Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New York, New VerDate Sep<11>2014 19:06 Dec 23, 2016 Jkt 241001 PO 00000 Frm 00139 Fmt 4700 Sfmt 4700 95047 York 10007–1866, (212) 637–4085; email address: jon.frank@epa.gov. SUPPLEMENTARY INFORMATION: Throughout this document, references to ‘‘EPA,’’ ‘‘we,’’ ‘‘us,’’ or ‘‘our,’’ are intended to mean the Environmental Protection Agency. The supplementary information is arranged as follows: I. What is the background for this action? II. What sections of New York’s rules are we approving in this action? III. What are EPA’s responses to comments to EPA’s proposal? IV. What action is EPA taking? V. Incorporation By Reference. VI. Statutory and Executive Order Reviews. I. What is the background for this action? On October 12, 2011, the New York State Department of Environmental Conservation (NYSDEC) submitted to EPA Region 2 a new set of revisions to the New York State Implementation Plan (SIP). This submittal consists of revisions to Title 6 of the New York Code of Rules and Regulations (6 NYCRR) Part 231, New Source Review for New and Modified Facilities; 6 NYCRR Part 200, General Provisions; and 6 NYCRR Part 201, Permits and Certificates. New York undertook this rulemaking to comply with EPA’s May 16, 2008 NSR final rule for the regulation of particulate matter with an aerodynamic diameter less than or equal to 2.5 micrometers (PM2.5). Also, the revisions implement EPA’s October 20, 2010 final rule that establishes the PM2.5 increments, significant impact levels, and significant monitoring concentrations. New York’s rulemaking implements PM2.5 provisions that were not previously included in the November 17, 2010 EPA SIP approval of Part 231. This SIP revision also incorporates provisions that conform to EPA’s June 3, 2010 final rule for Greenhouse Gases (GHGs) under its PSD and Title V programs, establishing major source applicability threshold levels for GHG emissions and other conforming changes such as the establishment of global warming potential values for calculating CO2 equivalents under New York’s PSD and Title V programs. In today’s action, the EPA is taking final action to approve those revisions by issuing a full approval, as proposed (see 81 FR 63448 (September 15, 2016)). The EPA is also taking action to approve certain elements of New York SIP revisions as meeting CAA section 110(a) requirements for the 2008 Pb, 2008 ozone, and 2010 SO2 NAAQS. NYSDEC submitted a SIP for the 2008 Pb NAAQS on October 13, 2011, as supplemented on February 24, 2012, and for the 2008 ozone NAAQS on April E:\FR\FM\27DER1.SGM 27DER1

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[Federal Register Volume 81, Number 248 (Tuesday, December 27, 2016)]
[Rules and Regulations]
[Pages 95043-95047]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-31017]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2015-0529; FRL-9957-16-Region 5]


Air Plan Approval; Wisconsin; Infrastructure SIP Requirements for 
the 2012 PM2.5 NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is finalizing 
approval of some elements of a July 13, 2015 state implementation plan 
(SIP) submittal from the Wisconsin Department of Natural Resources 
(WDNR) regarding the infrastructure requirements of section 110 of the 
Clean Air Act (CAA) for the 2012 fine particulate matter 
(PM2.5) National Ambient Air Quality Standards (NAAQS). The 
infrastructure requirements are designed to ensure that the structural 
components of each state's air quality management program are adequate 
to meet the state's responsibilities under the CAA. The proposed 
rulemaking associated with this final action was published on February 
19, 2016, and EPA received adverse comments during the comment period, 
which ended on March 21, 2016. Responses to comments are included 
below. In this rulemaking, EPA is not taking action on Wisconsin's 
satisfaction of the infrastructure requirements of CAA section 
110(a)(2)(F), also referred to as ``element F,'' which pertains to 
stationary source monitoring and reporting. EPA proposed approval of 
and received an adverse comment on our proposed approval of element F, 
which will be addressed in a separate rulemaking. In this rulemaking we 
respond to the remainder of the comments we received on our initial 
proposed rulemaking, which includes those comments not pertaining to 
element F, and finalize as initially proposed our approval of the other 
elements of Wisconsin's 2012 PM2.5 infrastructure SIP.

DATES: This final rule is effective on January 26, 2017.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2015-0529. All documents in the docket are listed on 
the www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, i.e., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
through www.regulations.gov or 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 Jenny Liljegren, Physical Scientist, at (312) 886-
6832 before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Jenny Liljegren, Physical Scientist, 
Attainment Planning and Maintenance Section, Air Programs Branch 
(AR18J), Environmental Protection Agency, Region 5, 77 West Jackson 
Boulevard, Chicago, Illinois 60604, (312) 886-6832, 
Liljegren.Jennifer@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 of this SIP submittal?
II. Responses to Comments Received on EPA's Proposed Rulemaking
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews

I. What is the background of this SIP submittal?

A. What state SIP submittal does this rulemaking address?

    This rulemaking addresses a July 13, 2015 infrastructure SIP 
submittal from WDNR for the 2012 PM2.5 \1\ NAAQS.
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    \1\ PM2.5 refers to particles with an aerodynamic 
diameter of less than or equal to 2.5 micrometers, oftentimes 
referred to as ``fine'' particles.
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B. Why did the State make this SIP submittal?

    Under section 110(a)(1) and (2) of the CAA, states are required to 
submit infrastructure SIPs to ensure that their SIPs provide for 
implementation, maintenance, and enforcement of the NAAQS, including 
the 2012 PM2.5 NAAQS. This submittal must contain any 
revisions needed for meeting the applicable SIP requirements of section 
110(a)(2) or certifications that the state's existing SIP for the NAAQS 
already meets those requirements.
    EPA highlighted this statutory requirement in an October 2, 2007 
guidance document entitled ``Guidance on SIP Elements Required Under 
Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and 
PM2.5 National Ambient Air Quality Standards'' and has 
issued additional guidance documents, the most recent on September 13, 
2013, entitled ``Guidance on Infrastructure State Implementation Plan 
(SIP) Elements under CAA Sections 110(a)(1) and 110(a)(2).'' The SIP 
submittal referenced in this rulemaking pertains to the applicable

[[Page 95044]]

requirements of section 110(a)(1) and (2) and addresses the 2012 
PM2.5 NAAQS.

C. What is the scope of this rulemaking?

    EPA is acting upon the SIP submittal from WDNR that addresses the 
infrastructure requirements of CAA section 110(a)(1) and (2) for the 
2012 PM2.5 NAAQS. The requirement for states to make SIP 
submittals of this type arises out of CAA section 110(a)(1). States 
must make SIP submittals ``within 3 years (or such shorter period as 
the Administrator may prescribe) after the promulgation of a national 
primary ambient air quality standard (or any revision thereof),'' and 
these SIP submittals are to provide for the ``implementation, 
maintenance, and enforcement'' of such NAAQS. The statute directly 
imposes on states the duty to make these SIP submittals, and the 
requirement to make the submittal is not conditioned upon EPA's taking 
any action other than promulgating a new or revised NAAQS. Section 
110(a)(2) includes a list of specific elements that ``[e]ach such 
plan'' submittal must address.
    EPA has historically referred to these SIP submittals made for the 
purpose of satisfying the requirements of CAA section 110(a)(1) and (2) 
as ``infrastructure SIP'' submittals. Although the term 
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to 
distinguish this particular type of SIP submittal from submittals that 
are intended to satisfy other SIP requirements under the CAA, such as 
SIP submittals that address the nonattainment planning requirements of 
part D of Title I of the CAA, the Prevention of Significant 
Deterioration (PSD) requirements of part C of title I of the CAA, and 
``regional haze SIP'' submittals required to address the visibility 
protection requirements of section 169A of the CAA.
    This rulemaking will not cover three substantive areas that are not 
integral to acting on a state's infrastructure SIP submittals: (i) 
Existing provisions related to excess emissions during periods of 
start-up, shutdown, or malfunction (``SSM'') at sources that may be 
contrary to the CAA and EPA's policies addressing such excess 
emissions; (ii) existing provisions related to ``director's variance'' 
or ``director's discretion,'' which purport to permit revisions to SIP-
approved emissions limits with limited public notice or without 
requiring further approval by EPA and may be contrary to the CAA; and, 
(iii) existing provisions for 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). Instead, EPA has the authority to address each one of these 
substantive areas in separate rulemakings. A detailed history, 
interpretation, and rationale, as they relate to infrastructure SIP 
requirements, can be found in EPA's May 13, 2014, proposed rule 
entitled, ``Approval and Promulgation of Air Quality Implementation 
Plans; Illinois, Michigan, Minnesota, WDNR; Infrastructure SIP 
Requirements for the 2008 Lead NAAQS'' in the section, ``What is the 
scope of this rulemaking?'' (see 79 FR 27241 at 27242-27245).

II. Responses to Comments Received on EPA's Proposed Rulemaking

    The public comment period for our proposed rulemaking with respect 
to WDNR's satisfaction of the infrastructure SIP requirements for the 
2012 PM2.5 NAAQS closed on March 21, 2016. EPA received two 
comment letters, one from Clean Wisconsin and one from Midwest 
Environmental Advocates (MEA). A synopsis of the comments contained in 
these letters and EPA's responses are provided below. As mentioned 
previously, EPA is not taking action on CAA section 110(a)(2)(F) in 
this rulemaking. EPA's action on element F and our response to the 
comment from MEA pertaining to our proposed approval of element F will 
be addressed in a separate rulemaking.
    Comment 1: With regard to EPA proposing that WDNR has met the 
infrastructure SIP requirements of section 110(a)(2)(A) for the 2012 
PM2.5 NAAQS, MEA comments that particulate and visible 
emissions limitations in Wisconsin Administrative Code Chapters NR 415 
and NR 431 are outdated, do not reflect the current state of the art in 
air pollution control methods, are insufficient to ensure compliance 
with the PM2.5 NAAQS, and must be supplemented to meet 
Federal standards. Part of this issue stems from the lack of 
information about PM2.5 emission factors, control measures, 
and public exposure. MEA urges EPA to require WDNR to use its 
enforcement program to expand upon the lack of knowledge of 
PM2.5 emission factors by requiring testing and monitoring 
in lieu of or in addition to fines when settling enforcement cases.
    Response 1: Section 110(a)(2)(A) requires SIPs to include 
enforceable emission limits and other control measures, means or 
techniques, as well as schedules and timetables for compliance, and 
other related matters. EPA has long interpreted these requirements as 
being due when nonattainment planning requirements are 
due.2 3 Thus, in the context of an infrastructure SIP, EPA 
is not evaluating the existing SIP provisions for the purpose of 
emissions limits and control measures, which are connected with 
nonattainment planning requirements. Instead, EPA is only evaluating 
whether the state's SIP has the basic structural provisions required 
for the implementation of the NAAQS. As explained in the proposed rule, 
EPA finds that WDNR has met the infrastructure SIP requirements of 
section 110(a)(2)(A) with respect to the 2012 PM2.5 NAAQS.
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    \2\ See, e.g., EPA's final rule on ``National Ambient Air 
Quality Standards for Lead.'' 73 FR 66964 at 67034.
    \3\ Currently, Wisconsin has no nonattainment areas for the 2012 
PM2.5 NAAQS, and the only nonattainment area in Wisconsin 
for the 2006 PM2.5 NAAQS--the Milwaukee-Racine 
Nonattainment Area, including Milwaukee, Racine, and Waukesha 
counties--has been redesignated (79 FR 22415) to a maintenance area.
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    Section 110(a)(2)(C) requires each state to provide a program for 
enforcement of all SIP measures. Under Wis. Stats. 285.13, WDNR has the 
authority to impose fees and penalties to ensure that required measures 
are ultimately implemented. Wis. Stats. 285.83 and Wis. Stats. 285.87 
provide WDNR with the authority to take enforcement actions and assess 
penalties. While, in general, any efforts to expand upon the lack of 
knowledge of PM2.5 emission factors via testing and 
monitoring would be extremely useful for air quality planning, MEA's 
suggestion goes beyond the scope of this rulemaking and the minimum 
requirements under the CAA. EPA finds that WDNR's enforcement program, 
as it currently exists, has met the enforcement of SIP measures 
requirements of section 110(a)(2)(C) with respect to the 2012 
PM2.5 NAAQS. Accordingly, in this rulemaking, EPA is not 
requiring WDNR to use its enforcement program to expand upon the lack 
of knowledge of PM2.5 emission factors--which is suggested 
by MEA--in lieu of or addition to fines when settling enforcement 
cases.
    Comment 2: With regard to EPA proposing that WDNR has met the 
infrastructure SIP requirements of section 110(a)(2)(B) with respect to 
the 2012 PM2.5 NAAQS, MEA comments that WDNR's 
PM2.5 monitoring network only includes 20 monitoring sites 
for PM2.5 and is insufficient to characterize public 
exposure to PM2.5. EPA should expand the ambient air 
monitoring network for PM2.5 by using its authority to 
require industrial facilities to install and operate ambient monitors 
where

[[Page 95045]]

members of the public are likely to be exposed to PM2.5, 
especially at possible NAAQS hotspots.
    Response 2: WDNR submits annual monitoring network plans to EPA. 
EPA approved WDNR's 2016 Annual Air Monitoring Network Plan on October 
26, 2015, and EPA approved (with exceptions) \4\ WDNR's 2017 Annual Air 
Monitoring Network Plan on October 31, 2016. EPA's review of the annual 
monitoring plan includes EPA's determination that the state monitors 
air quality at appropriate locations throughout the state in accordance 
with 40 CFR part 58. EPA's October 26, 2015 approval of WDNR's 2016 
Annual Air Monitoring Network Plan and EPA's October 31, 2016 approval 
of WDNR's 2017 Annual Air Monitoring Network Plan indicates that WDNR 
has met the requirements of 40 CFR part 58 with respect to its 2016 and 
2017 PM2.5 monitoring networks. Therefore, EPA finds that 
Wisconsin has met the infrastructure SIP requirements of section 
110(a)(2)(B) with respect to the 2012 PM2.5 NAAQS. WDNR's 
Annual Network Plan can be found at http://WDNR.wi.gov/topic/AirQuality/Monitor.html.
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    \4\ The exceptions do not pertain to Wisconsin's 
PM2.5 monitoring network. There are two exceptions to 
EPA's approval of Wisconsin's 2017 Annual Air Monitoring Network 
Plan. The first exception pertains to Wisconsin's request to shorten 
the ozone season which was extended with the revision of the ozone 
NAAQS in October 2015 (40 CFR part 58, section 4.1(i)). WDNR must 
plan to monitor for ozone, statewide, during the required ozone 
season in effect January 1, 2017. EPA's approval of Wisconsin's 2017 
Annual Air Monitoring Network Plan does not constitute approval of 
the shortened ozone season requested by Wisconsin. The second 
exception pertains to a nitrogen dioxide (NO2) monitor. 
Wisconsin may discontinue/shut-down the Photochemical Air Monitoring 
Station (PAMS) at the Southeast Regional office (SER/DNR) as per 
EPA's October 16, 2015 revisions to the PAMS monitoring requirements 
with the exception of the NO2 monitor at this site. 40 
CFR part 58, appendix D, section 4.3 requires the Milwaukee-
Waukesha-West Allis metropolitan statistical area to operate two 
NO2 monitoring sites. One site should be collocated with 
a near-road site and a second representative of area-wide 
NO2 emissions. Wisconsin meets the near-road station 
NO2 monitoring requirement with the College Avenue near-
road station and the area-wide monitoring requirement with the 
NO2 monitoring conducted at the PAMS at SER/DNR. 
Therefore, Wisconsin may discontinue/shut-down the PAMS at SER/DNR 
with the exception of the NO2 monitor.
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    Comment 3: MEA comments that ``Compounding the issue of 
insufficient monitoring is the fact that the WDNR does not require 
industrial facilities to provide and report their annual 
PM2.5 emissions like they do for PM and PM10. 
Each facility is in the best position to know their actual emissions 
from the previous year, so not requiring a report at the end of the 
year makes it even more difficult to identify any violations. The 
information needed to make that assessment would need to be sought out 
independently for each facility in the entire state, which requires a 
great deal more work than reading a report and comparing it to the 
limit. States such as Indiana and Iowa already have this requirement in 
place, so it has been successfully implemented elsewhere, and there is 
no reason it cannot be done in Wisconsin as well.''
    Response 3: EPA will respond to this comment and address in a 
separate rulemaking Wisconsin's satisfaction of CAA section 
110(a)(2)(F), also referred to as ``element F,'' which pertains to 
stationary source monitoring and reporting.
    Comment 4: (Note that we have grouped the following comments from 
MEA and Clean Wisconsin that are similar in content into a single 
comment and response section entitled ``Comment 4.'') MEA is concerned 
that WDNR underutilizes air quality modeling as a tool for determining 
facility-specific PM2.5 emissions limitations and that this 
may result in violations of the PM2.5 NAAQS. MEA, in its 
comment letter, provides examples of WDNR permits that set 
PM2.5 limits equal to PM10 limits without 
conducting PM2.5 modeling. MEA notes that the current WDNR 
guideline for permit renewals suggests that if there has been no change 
in historical particulate emissions since the last operation permit was 
issued, no modeling is necessary to verify compliance with the NAAQS. 
MEA also notes that WDNR registration permits only require that 
emission stacks be built to a certain height that is taller than any 
surrounding building, rather than require a modeling analysis of 
PM2.5 emissions.
    Both MEA and Clean Wisconsin submitted comments regarding WDNR's 
``Guidance for Including PM2.5 in Air Pollution Control 
Permit Applications'' (Guidance). Clean Wisconsin notes the recently 
issued Guidance changes WDNR's methodology for calculating 
PM2.5 emissions from certain sources and uses a weight-of-
evidence approach rather than modeling for permits for certain sources. 
Thus, the Guidance will affect WDNR's ability to adequately model and 
track PM2.5 emissions and compromise the quality of data and 
analysis in determining compliance with the PM2.5 NAAQS. 
Clean Wisconsin believes the Guidance undermines WDNR's ability to 
provide air quality modeling data to accurately predict effects on air 
quality of PM2.5 emissions as required by section 
110(a)(2)(K). MEA believes the WDNR's weight-of-evidence approach will 
not protect WDNR residents from exposure to unhealthy concentrations of 
PM2.5 and will fail to ensure that facilities are in 
compliance with the PM2.5 NAAQS. Clean Wisconsin recommends, 
at a minimum, that WDNR conduct additional monitoring of direct 
PM2.5 before it can justify changes to its methodology for 
estimating PM2.5 emissions. Clean Wisconsin believes the 
Guidance serves to describe a general policy of the WDNR, carries the 
weight and effect of a rule, and impacts WDNR's implementation of the 
PM2.5 NAAQS. MEA believes the Guidance is essentially a 
rule, as defined by administrative law, and because WDNR did not follow 
its rulemaking process, the Guidance is an unlawful rule. Clean 
Wisconsin requests that EPA require WDNR to withdraw the Guidance as a 
condition for approval of WDNR's 2012 PM2.5 infrastructure 
SIP.
    Response 4: Section 110(a)(2)(K) requires SIPs to provide for the 
performance of air quality modeling for predicting effects on air 
quality of emissions from any NAAQS pollutant and the submission of 
such data to EPA upon request. EPA's 2013 infrastructure SIP guidance 
indicates that the best practice would be for an air agency to submit 
the statutory or regulatory provisions that provide the air agency or 
official with the authority to perform the following actions along with 
a narrative explanation of how the provisions meet the requirements of 
section 110(a)(2)(K): (1) Conduct air quality modeling to predict the 
effect on ambient air quality of any emissions of any air pollutant for 
which a NAAQS has been promulgated, and (2) provide such modeling data 
to the EPA Administrator upon request. EPA's 2013 infrastructure SIP 
guidance indicates EPA recognizes that some air agencies may have 
general authorizing provisions that do not enumerate specific 
activities but do implicitly authorize the air agency to perform such 
activities, in which case inclusion of those provisions would meet the 
intent of this best practice. WDNR maintains the capability and the 
authority to perform computer modeling of the air quality impacts of 
emissions of all criteria pollutants, including both source-oriented 
dispersion models and more regionally directed complex photochemical 
grid models. Wis. Stats. 285.11, Wis. Stats. 285.13, and Wis. Stats. 
285.60-285.69 authorize WDNR to perform air quality modeling. Therefore 
EPA finds that WDNR has met the infrastructure SIP requirements of 
section 110(a)(2)(K) with respect to the 2012 PM2.5 NAAQS.

[[Page 95046]]

III. What action is EPA taking?

    EPA is finalizing approval of most elements and deferring action on 
one element of a submittal from WDNR certifying that its current SIP is 
sufficient to meet the required infrastructure elements under section 
110(a)(1) and (2) for the 2012 PM2.5 NAAQS. The proposed 
rulemaking associated with this final action was published on February 
19, 2016 (81 FR 8460), and EPA received comments during the comment 
period, which ended on March 21, 2016. EPA has responded to each of the 
comments received in the section above with the exception of ``Comment 
3,'' which we intend to respond to in a separate rulemaking. EPA is 
taking final action to approve, as proposed, most elements of WDNR's 
submittal. EPA is not taking action on several elements of WDNR's 
submittal that will be addressed in separate rulemakings.
    EPA's actions for the state's satisfaction of infrastructure SIP 
requirements, by element of section 110(a)(2) and NAAQS, are contained 
in the table below.

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                        Element                             2012 PM2.5
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(A)--Emission limits and other control measures........               A
(B)--Ambient air quality monitoring/data system........               A
(C)1--Program for enforcement of control measures......               A
(C)2--PSD..............................................              NA
(D)1--I Prong 1: Interstate transport--significant                   NA
 contribution..........................................
(D)2--I Prong 2: Interstate transport--interfere with                NA
 maintenance...........................................
(D)3--II Prong 3: Interstate transport--prevention of                NA
 significant deterioration.............................
(D)4--II Prong 4: Interstate transport--protect                       A
 visibility............................................
(D)5--Interstate and international pollution abatement.               A
(E)1--Adequate resources...............................               A
(E)2--State board requirements.........................               A
(F)--Stationary source monitoring and reporting........              NA
(G)--Emergency power...................................               A
(H)--Future SIP revisions..............................               A
(I)--Nonattainment planning requirements of part D.....              NA
(J)1--Consultation with government officials...........               A
(J)2--Public notification..............................               A
(J)3--PSD..............................................              NA
(J)4--Visibility protection............................               A
(K)--Air quality modeling/data.........................               A
(L)--Permitting fees...................................               A
(M)--Consultation and participation by affected local                 A
 entities..............................................
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    In the above table, the key is as follows:

 
------------------------------------------------------------------------
 
------------------------------------------------------------------------
A.................................  Approve.
NA................................  No Action/Separate Rulemaking.
D.................................  Disapprove.
------------------------------------------------------------------------

IV. Statutory and Executive Order Reviews.

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register.

[[Page 95047]]

This action is not a ``major rule'' as defined by 5 U.S.C. 804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by February 27, 2017. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Particulate matter, Reporting 
and recordkeeping requirements.

    Dated: December 13, 2016.
Robert Kaplan,
Acting Regional Administrator, Region 5.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.


0
2. Section 52.2591 is amended by adding paragraph (k) to read as 
follows:


Sec.  52.2591  Section 110(a)(2) infrastructure requirements.

* * * * *
    (k) Approval--In a July 13, 2015, submission, WDNR certified that 
the state has satisfied the infrastructure SIP requirements of section 
110(a)(2)(A) through (H), and (J) through (M) for the 2012 
PM2.5 NAAQS. We are not taking action on the prevention of 
significant deterioration requirements related to section 
110(a)(2)(C)(ii), (D)(i)(II), and (J), the transport provisions in 
section 110(a)(2)(D)(i)(I), and the stationary source monitoring and 
reporting requirements of section 110(a)(2)(F). We will address these 
requirements in a separate action.

[FR Doc. 2016-31017 Filed 12-23-16; 8:45 am]
BILLING CODE 6560-50-P