
[Federal Register Volume 77, Number 209 (Monday, October 29, 2012)]
[Rules and Regulations]
[Pages 65478-65488]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-26289]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2009-0805; EPA-R05-OAR-2012-0567; FRL-9742-4]


Approval and Promulgation of Air Quality Implementation Plans; 
Illinois; Indiana; Michigan; Minnesota; Ohio; Wisconsin; Infrastructure 
SIP Requirements for the 2006 PM2.5 National Ambient Air Quality 
Standards; Indiana NSR/PSD

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to approve most elements, and 
disapprove narrow portions of other elements, of State Implementation 
Plan (SIP) submissions by Illinois, Indiana, Michigan, Minnesota, Ohio, 
and Wisconsin regarding the infrastructure requirements of the Clean 
Air Act (CAA) for the 2006 24-hour fine particle national ambient air 
quality standards (2006 PM2.5 NAAQS). The infrastructure 
requirements are designed to ensure that the structural components of 
each State's air quality management program are adequate to meet the 
State's responsibilities under the CAA. EPA is also taking final action 
to approve portions of a submission from Indiana addressing EPA's 
requirements for its new source review (NSR) and prevention of 
significant deterioration (PSD) program. The proposed rulemaking was 
published on August 2, 2012. During the comment period, which ended on 
September 4, 2012, EPA received five comment letters. The concerns 
raised in these letters, as well as EPA's responses, will be addressed 
in this final action.

DATES: This final rule is effective on November 28, 2012.

ADDRESSES: EPA has established two dockets for this action under Docket 
ID No. EPA-R05-OAR-2009-0805 (infrastructure SIP elements for all 
Region 5 States) and EPA-R05-OAR-

[[Page 65479]]

2012-0567 (Indiana NSR/PSD elements). 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., Confidential Business 
Information 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 U.S. Environmental Protection Agency, Region 5, Air 
and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 
60604. This facility is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding Federal holidays. We recommend that you 
telephone Andy Chang at (312) 886-0258 before visiting the Region 5 
office.

FOR FURTHER INFORMATION CONTACT: Andy Chang, Environmental Engineer, 
Attainment Planning and Maintenance Section, Air Programs Branch (AR-
18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson 
Boulevard, Chicago, Illinois 60604, (312) 886-0258, chang.andy@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This supplementary information 
section is arranged as follows:

I. What is the background of these SIP submissions?
    A. What State SIP submissions does this rulemaking address?
    B. Why did the States make these SIP submissions?
    C. What is the scope of this rulemaking?
II. What is our response to comments received on the proposed 
rulemaking?
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews

I. What is the background of these SIP submissions?

A. What State SIP submissions does this rulemaking address?

    This rulemaking addresses submissions from each State (and 
appropriate State agency) in EPA Region 5: Illinois Environmental 
Protection Agency (Illinois EPA); Indiana Department of Environmental 
Management (IDEM); Michigan Department of Environmental Quality (MDEQ); 
Minnesota Pollution Control Agency (MPCA); Ohio Environmental 
Protection Agency (Ohio EPA); and Wisconsin Department of Natural 
Resources Bureau of Air Management (WDNR). Each Region 5 State made SIP 
submissions on the following dates: Illinois--August 9, 2011, and 
supplemented on August 25, 2011, and June 27, 2012; Indiana--October 
20, 2009, and supplemented on June 25, 2012, and July 12, 2012; 
Michigan--August 15, 2011, and supplemented on July 9, 2012; 
Minnesota--May 23, 2011, and supplemented on June 27, 2012; Ohio--
September 4, 2009, and supplemented on June 3, 2011, and July 5, 2012; 
and, Wisconsin--January 24, 2011, and supplemented on March 28, 2011, 
and June 29, 2012.\1\
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    \1\ WDNR noted in a comment letter that its initial 
infrastructure SIP submission was dated December 12, 2007. EPA 
observes, however, that the December 12, 2007, submission by WDNR 
only addresses the 1997 8-hour ground level ozone and 1997 
PM2.5 NAAQS, and not the 2006 PM2.5 NAAQS.
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    Indiana also made a SIP submission intended to address various EPA 
requirements for its NSR and PSD programs. IDEM submitted revisions on 
July 12, 2012, for incorporation into its NSR and PSD program, and also 
requested that EPA approve these revisions as satisfying any applicable 
infrastructure SIP requirements for the 2006 PM2.5 NAAQS.

B. Why did the States make these SIP submissions?

    Under sections 110(a)(1) and (2) of the CAA, and implementing EPA 
policy, the States are required to submit infrastructure SIPs to ensure 
that their SIPs provide for implementation, maintenance, and 
enforcement of the NAAQS, including the 2006 PM2.5 NAAQS. 
These submissions must contain any revisions needed for meeting the 
applicable SIP requirements of section 110(a)(2), or certifications 
that their existing SIPs for particulate matter already met 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'' (2007 Memo). 
On September 25, 2009, EPA issued an additional guidance document 
pertaining to the 2006 PM2.5 NAAQS entitled ``Guidance on 
SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-
Hour Fine Particle (PM2.5) National Ambient Air Quality 
Standards (NAAQS)'' (2009 Memo). The SIP submissions referenced in this 
rulemaking pertain to the applicable requirements of sections 110(a)(1) 
and (2) of the CAA. The SIP submissions from the six Region 5 States 
being evaluated here address primarily the 2006 PM2.5 NAAQS, 
with a narrow evaluation of the 1997 8-hour ozone NAAQS; this final 
rulemaking addresses only these pollutants as well.\2\
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    \2\ On June 14, 2012, the EPA Administrator signed a proposed 
rule that would strengthen various aspects of the existing 
PM2.5 NAAQS (see 77 FR 38890). The State submittals and 
EPA's rulemaking do not extend to these proposed NAAQS.
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C. What is the scope of this rulemaking?

    As originally detailed in the proposed rulemaking, the applicable 
infrastructure SIP requirements are contained in section 110(a)(1) and 
(2) of the CAA. EPA is finalizing action of each Region 5 State's 
satisfaction of the applicable requirements of section 110(a)(2)(A) 
through section 110(a)(2)(M), except for the elements detailed in the 
following paragraphs.
    This rulemaking will not cover four substantive areas that are not 
integral to acting on a State's infrastructure SIP submission: (i) 
Existing provisions related to excess emissions during periods of 
start-up, shutdown, or malfunction at sources, that may be contrary to 
the CAA and EPA's policies addressing such excess emissions (``SSM''); 
(ii) existing provisions related to ``director's variance'' or 
``director's discretion'' that purport to permit revisions to SIP 
approved emissions limits with limited public process or without 
requiring further approval by EPA, that may be contrary to the CAA 
(``director's discretion''); (iii) existing provisions for minor source 
NSR programs that may be inconsistent with the requirements of the CAA 
and EPA's regulations that pertain to such programs (``minor source 
NSR''); and, (iv) 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) (``NSR Reform''). Instead, EPA has indicated that it 
has other authority to address any such existing SIP defects in other 
rulemakings, as appropriate. A detailed rationale for why these four 
substantive areas are not part of the scope of infrastructure SIP 
rulemakings can be found in EPA's July 13, 2011, final rule entitled, 
``Infrastructure SIP Requirements for the 1997 8-hour Ozone and 
PM2.5 National Ambient Air Quality Standards'' in the 
section entitled, ``What is the scope of this final rulemaking?'' (see 
76 FR 41075 at 41076-41079).
    In addition to the four substantive areas above, EPA is not acting 
in this action on portions of section 110(a)(2)(D)(i)(I)--Interstate 
transport; section 110(a)(2)(E)(ii)--Adequate resources; and section 
110(a)(2)(J)--Consultation with government officials,

[[Page 65480]]

public notifications, PSD, and visibility protection. EPA stated in our 
proposed rulemaking that we were not proposing to act on the portion of 
any Region 5 State's submission intended to address the interstate 
transport requirements of section 110(a)(2)(D)(i)(I) (see 77 FR 45992 
at 46000), nor were we proposing to approve or disapprove each Region 5 
State's satisfaction of the state board requirements of section 
110(a)(2)(E)(ii) (see 77 FR 45992 at 46002). We have previously 
finalized our rulemaking for the interstate transport requirements for 
Indiana and Ohio (see FR 43175), and we have yet to take action on the 
section 110(a)(2)(D)(i)(I) portion of the SIP submissions from 
Illinois, Michigan, Minnesota, and Wisconsin. We will also take action 
on compliance with section 110(a)(2)(E)(ii) for Illinois, Indiana, 
Michigan, Minnesota, Ohio, and Wisconsin at a later time. EPA is 
working with each of the Region 5 States to address these requirements 
in the most appropriate way.
    With respect to the visibility protection requirements of section 
110(a)(2)(J), EPA notes that these requirements are different from 
those in section 110(a)(2)(D)(i)(II) in that the visibility protection 
requirements of section 110(a)(2)(J) are not ``triggered'' by the 
promulgation of a new or updated NAAQS. In other words, the visibility 
protection requirements of section 110(a)(2)(J) are not germane to 
infrastructure SIPs for the 2006 PM2.5 NAAQS. EPA realizes 
that our proposed rulemaking may have engendered confusion with respect 
to section 110(a)(2)(J) (see 77 FR 45992 at 46005), and we want to 
clarify in this final action that the visibility protection 
requirements of section 110(a)(2)(J) are not germane to the 
infrastructure SIP for the 2006 PM2.5 NAAQS. EPA is also not 
acting on section 110(a)(2)(I)--Nonattainment Area Plan or Plan 
Revisions Under Part D, in its entirety. Instead, EPA takes action on 
part D attainment plans through separate processes.
    Furthermore, as a result of the current status of the Cross-State 
Air Pollution Rule (CSAPR),\3\ EPA is not finalizing action on portions 
of the interstate transport requirements for addressing visibility 
protection of section 110(a)(2)(D)(i)(II) for certain Region 5 States 
where we had previously proposed approval; the reasoning can be found 
in the following section.
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    \3\ See http://epa.gov/airtransport/. Notably, the Court of 
Appeals for the D.C. Circuit issued an opinion vacating CSAPR on 
August 21, 2012, and ordering EPA to continue administering the 
Clean Air Interstate Rule.
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    We are also not finalizing our action on narrow portions of 
Michigan's infrastructure SIP for section 110(a)(2)(C), section 
110(a)(2)(D)(i)(II), and section 110(a)(2)(J), specifically with 
respect to the applicable requirements obligated by EPA's final rule 
for the ``Implementation of the New Source Review (NSR) Program for 
Particulate Matter Less than 2.5 Micrometers (PM2.5)'' (2008 
NSR Rule) (see 73 FR 28321) and 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). On September 
4, 2012, MDEQ submitted a comment letter to EPA that requires more 
evaluation; the specific issues are described in the following section.
    Lastly, as a result of a comment received during the comment 
period, EPA is not finalizing action on a narrow portion of Indiana's 
infrastructure SIP for section 110(a)(2)(C), section 
110(a)(2)(D)(i)(II), and section 110(a)(2)(J), specifically for the 
source impact analysis requirements of the State's PSD program as it 
relates to the 2006 PM2.5 NAAQS; the specific issues are 
described in the following section.

II. What is our response to comments received on the proposed 
rulemaking?

    The public comment period for EPA's proposed action to approve most 
elements and disapprove narrow portions of other elements of 
submissions from the Region 5 States closed on September 4, 2012. EPA 
received five comment letters, and a synopsis of the significant 
individual comments contained in these letters, as well as EPA's 
response to each comment, is discussed below.
    Comment 1: A comment letter was submitted on behalf of the Ohio 
Utility Group (OUG) and its member companies. While OUG generally 
supported EPA's proposed actions with respect to Ohio's infrastructure 
SIP for the 2006 PM2.5 NAAQS, the group recommended that EPA 
withdraw its prior disapproval of the portions of Ohio's infrastructure 
SIP addressing the interstate transport requirements of section 
110(a)(2)(D)(i)(I) (see 76 FR 43175). Instead, OUG stated that it was 
EPA's intent to implement a Federal Implementation Plan (FIP) in Ohio 
to meet these requirements, and that the finalized CSAPR was published 
in the Federal Register on August 8, 2011 (see 76 FR 48208), as a FIP 
that would simultaneously remedy and replace the Clean Air Interstate 
Rule (CAIR). OUG noted that CSAPR was stayed by the U.S. Court of 
Appeals for the District of Columbia Circuit pending judicial review on 
December 31, 2011, and that the court also ordered EPA to continue 
administering CAIR. OUG further noted that on August 21, 2012, the 
court vacated and remanded CSAPR back to EPA, and again ordered EPA to 
continue administering CAIR. Therefore, OUG believes that EPA should 
withdraw its prior disapproval of Ohio's interstate transport SIP, and 
propose approval of Ohio's submissions intended to address the 
requirements of section 110(a)(2)(D)(i)(I), making the emission 
reductions that have already occurred Federally enforceable. Lastly, 
OUG stated that when EPA issues a new interstate transport rule, EPA 
can then make a determination that the emission reductions as a result 
of Ohio's interstate transport SIP are insufficient and require Ohio to 
develop an updated SIP.
    Response 1: In EPA's August 2, 2012, proposed rulemaking, we stated 
that we were not proposing to approve or disapprove any provisions 
intended to address interstate transport requirements of section 
110(a)(2)(D)(i)(I) (see 76 FR 45992 at 46000); with respect to Ohio, 
EPA noted that the disapproval of portions of Ohio's infrastructure SIP 
for the 2006 PM2.5 NAAQS intended to address these 
requirements was finalized on July 20, 2011, and that the State did not 
have any SIP submission relevant to section 110(a)(2)(D)(i)(I) for the 
2006 PM2.5 NAAQS pending before the Agency. In other words, 
OUG's comments are not germane to today's rulemaking.
    Comment 2: One commenter noted that although EPA had proposed 
approval for all Region 5 States (except for Michigan) as meeting the 
visibility protection requirement of section 110(a)(2)(D)(i)(II), the 
Region 5 States' visibility SIPs relied on CSAPR to satisfy the 
requirement of Best Available Retrofit Technology (BART) for electric 
generating units. Since CSAPR has been vacated with CAIR temporarily in 
place, the commenter asserts that there exists no current and permanent 
cross state air pollution rule for EPA and the Region 5 States to rely 
on to satisfy the visibility protection requirements of section 
110(a)(2)(D)(i)(II), which includes BART limits for electric generating 
units. Therefore, EPA must disapprove the portions of infrastructure 
SIPs intended to address the visibility

[[Page 65481]]

protection requirements of section 110(a)(2)(D)(i)(II).
    Response 2: The 2009 Memo recommends to states that the visibility 
protection requirements of section 110(a)(2)(D)(i)(II) can be satisfied 
by an approved SIP addressing reasonably attributable visibility 
impairment, if required, and an approved SIP addressing regional 
haze.\4\ The commenter is correct in stating that if Region 5 States' 
regional haze plans relied on CSAPR in the context of BART and electric 
generating units, the visibility protection requirements of section 
110(a)(2)(D)(ii) would not be met because CSAPR has been vacated. 
However, the commenter is incorrect in his characterization of 
Illinois' regional haze plan. Specifically, Illinois has two sets of 
provisions in its SIP rules that meet the BART requirement of electric 
generating units \5\ without relying on CSAPR (or CAIR). EPA's final 
approval of Illinois' regional haze plan was published on July 6, 2012, 
(see 76 FR 39943) and affirms that existing provisions in Illinois 
satisfy the BART requirement.
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    \4\ EPA notes that the 2009 Memo distinguishes section 
110(a)(2)(D)(i)(II) from the visibility element of section 
110(a)(2)(J), which EPA believes is not germane in infrastructure 
SIPs for this NAAQS.
    \5\ The Combined Pollutant Standards are contained in 35 
Illinois Administrative Code 225.233, and the Multi-Pollutant 
Standards are contained in 35 Illinois Administrative Code 225.293-
225.299.
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    In today's rulemaking, EPA is not finalizing our proposed approval 
of the visibility protection requirements of section 
110(a)(2)(D)(i)(II) for Indiana, Ohio, Minnesota, and Wisconsin. EPA is 
also not taking any action on the visibility protection requirements of 
section 110(a)(2)(D)(i)(II) for Michigan. EPA will take action on these 
States' SIPs in a separate rulemaking. However, EPA is finalizing 
approval of Illinois' satisfaction of the visibility protection 
requirements of section 110(a)(2)(D)(ii) in this rulemaking.
    Comment 3: The same commenter stated that the Indiana SIP is 
insufficient for purposes of the State's PSD program for the 2006 
PM2.5 NAAQS. The commenter observes that 326 Indiana 
Administrative Code (IAC) 2-2-5(a)(1) requires an analysis of a new or 
modified source's emissions demonstrating that the emissions will not 
cause or contribute to air pollution in violation of any ambient air 
quality standard, as designated in 326 IAC 1-3. The language contained 
in 326 IAC 1-3 explicitly references only the 1997 PM2.5 
NAAQS, and not the 2006 PM2.5 NAAQS of 35 micrograms per 
cubic meter. Therefore, a literal read of Indiana's PSD regulations 
indicates that a source impact analysis would only need to comply with 
the 1997 PM2.5 NAAQS. The commenter did note that 326 IAC 2-
1.1-5 contains language that would prohibit issuance of a registration, 
permit, modification approval, or operating permit revision if issuance 
would allow a source to cause or contribute to a violation of the 
NAAQS. 326 IAC 2-1.1-5 is currently not in the SIP, and the language 
contained therein has not been submitted by Indiana for incorporation 
into the SIP.
    Response 3: After evaluating the commenter's points, EPA agrees 
that the State's EPA-approved PSD SIP contained in 326 IAC 2-2-5(a) 
only requires a source impact analysis for PM2.5 to comply 
with the 1997 PM2.5 NAAQS, and not the 2006 PM2.5 
NAAQS. 326 IAC 2-2-5(a) states that ``The owner or operator of the 
proposed major stationary source or major modification shall 
demonstrate that allowable emissions increases in conjunction with all 
other applicable emissions increases or reductions (including secondary 
emissions) will not cause or contribute to air pollution in violation 
of any: (1) Ambient air quality standard, as designated in 326 IAC 1-3, 
in any air quality control region * * *'' 326 IAC 1-3-4 contains the 
ambient air quality standards as they apply in Indiana; the 2006 
PM2.5 NAAQS as codified in 40 CFR 50.13, has not been 
incorporated into this section. IDEM has informed EPA that the State is 
in the process of adopting revisions to its SIP, specifically contained 
in IAC 326 1-3-4, to incorporate the 2006 PM2.5 NAAQS as 
codified in 40 CFR 50.13. EPA is therefore not finalizing any action on 
this narrow portion of section 110(a)(2)(C) for Indiana's 
infrastructure SIP for the 2006 PM2.5 NAAQS; we will address 
the PSD source impact analysis requirements of section 110(a)(2)(C) for 
the 2006 PM2.5 NAAQS in a separate rulemaking. EPA notes 
that there are also PSD requirements associated with section 
110(A)(2)(D)(i)(II) and section 110(a)(2)(J). As a result, we are also 
not finalizing any action on this narrow portion of section 
110(a)(2)(D)(i)(II) and section 110(a)(2)(J) for Indiana's 
infrastructure SIP for the 2006 PM2.5 NAAQS; we will address 
the same PSD source impact analysis requirements for the 2006 
PM2.5 NAAQS in the same action for section 110(a)(2)(C).
    Comment 4: The same commenter as above also stated that Wisconsin's 
PSD SIP does not contain the maximum allowable increases in ambient 
pollutant concentrations (increments) for PM2.5. The final 
rule for the ``Prevention of Significant Deterioration (PSD) for 
Particulate Matter Less Than 2.5 Micrometers (PM2.5)--
Increments, Significant Impact Levels (SILs) and Significant Monitoring 
Concentration (SMC)'' requiring states to incorporate increments into 
their PSD SIPs was published in the Federal Register on October 20, 
2010 (2010 NSR Rule) (see 75 FR 64864). This requirement was also 
codified in 40 CFR 51.166(c) and 40 CFR 52.21(c). The 2010 NSR Rule 
required states to submit revisions to their SIPs addressing this 
required program element by July 20, 2012 (see 75 FR 64864 at 64898). 
Therefore, because Wisconsin had not made revisions to its PSD SIP 
incorporating the increments by the deadline prescribed by the 2010 NSR 
Rule, EPA must disapprove the appropriate portions of the 
infrastructure SIP for the 2006 PM2.5 NAAQS. The commenter 
did state that WDNR has applied the appropriate increments when issuing 
PSD permits.
    Response 4: The commenter asserts that EPA should now disapprove 
portions of Wisconsin's infrastructure SIP for the 2006 
PM2.5 NAAQS because, since the date of EPA's proposal, the 
deadline for the submission of a SIP revision addressing the 
PM2.5 increments has passed. However, pursuant to the 2010 
NSR Rule and CAA section 166(b), states were not required to submit a 
revised SIP addressing the PM2.5 increments until July 20, 
2012. The Agency proposed action on the Wisconsin infrastructure SIP 
for the 2006 PM2.5 NAAQS in a notice signed on July 20, 
2012.\6\ Therefore, on the date that the proposed rule was signed by 
the Agency, the PM2.5 increments were not required to be 
included in the Wisconsin SIP in order for Wisconsin to meet the PSD 
requirements of sections 110(a)(2)(C), (D)(i)(II), and (J) of the CAA.
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    \6\ Although the proposed action was published by the Federal 
Register on August 2, 2012, it was signed by the Regional 
Administrator on July 20, 2012, before the statutory deadline for 
submission of the SIP revision addressing the PM2.5 
increments had passed.
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    The commenter's concerns relate to the timing of Agency action on 
collateral, yet related, SIP submissions. These concerns highlight an 
important overarching question that the EPA has to confront when 
assessing the various infrastructure SIP submittals addressed in the 
proposed rule: How to proceed when the timing and sequencing of 
multiple related SIP submissions impact the ability of the State and 
the Agency to address certain substantive issues in

[[Page 65482]]

the infrastructure SIP submission in a reasonable fashion.
    It is appropriate for EPA to take into consideration the timing and 
sequence of related SIP submissions as part of determining what it is 
reasonable to expect a State to have addressed in an infrastructure SIP 
submission for a NAAQS at the time when the EPA acts on such 
submission. EPA has historically interpreted section 110(a)(2)(C), 
section 110(a)(2)(D)(i)(II), and section 110(a)(2)(J) to require us to 
assess a State's infrastructure SIP submission with respect to the 
then-applicable and Federally enforceable PSD regulations required to 
be included in a State's SIP at the time EPA takes action on the SIP.
    However, EPA does not consider it reasonable to interpret section 
110(a)(2)(C), section 110(D)(i)(II), and section 110(a)(2)(J) to 
require us to propose to disapprove a State's infrastructure SIP 
submissions because the State had not yet, at the time of proposal, 
made a submission that was not yet due for the 2010 PM2.5 
NSR Rule. To adopt a different approach by which EPA could not act on 
an infrastructure SIP, or at least could not approve an infrastructure 
SIP, whenever there was any impending revision to the SIP required by 
another collateral rulemaking action would result in regulatory 
gridlock and make it impracticable or impossible for EPA to act on 
infrastructure SIPs if EPA is in the process of revising collateral PSD 
regulations. EPA believes that such an outcome would be an unreasonable 
reading of the statutory process for the infrastructure SIPs 
contemplated in section 110(a)(1) and (2).
    EPA acknowledges that it is important that these additional PSD 
program revisions be evaluated and approved into the State's SIP in 
accordance with the CAA, and EPA intends to address the 
PM2.5 increments in a subsequent rulemaking. EPA appreciates 
the commenter's point that Wisconsin has been applying the appropriate 
increments consistent with the requirements codified in 40 CFR 
52.21(c), and we will actively work with the State to ensure that these 
increments are correctly evaluated in permitting decisions. 
Furthermore, we will work with Wisconsin to ensure that revisions to 
its SIP incorporating these increments will be wholly consistent with 
the requirements obligated by the 2010 NSR Rule, as codified in 40 CFR 
51.166(c) and 40 CFR 52.21(c).
    Comment 5: The same commenter as above agreed with EPA's proposed 
disapproval of portions of Wisconsin's infrastructure SIP for the 2006 
PM2.5 NAAQS with respect to the explicit identification and 
regulation of condensable PM2.5 and PM10 in its 
PSD program.\7\ Wisconsin's existing SIP contained in Wisconsin 
Administrative Code NR 400.02(123e)--NR 400.02(124) does not contain 
the explicit references to condensables in PM2.5 and 
PM10 emissions, as obligated by the 2008 NSR Rule. 
Furthermore, revisions to its PSD program submitted by WDNR on May 11, 
2011, do not contain the explicit identification or regulation of 
PM2.5 and PM10 condensables. However, the 
commenter notes that WDNR has been including condensable fraction of 
particulate matter in permits for facilities for many years, as alluded 
to in NR 415.09. The commenter suggests that EPA clarify that a final 
disapproval of Wisconsin's infrastructure SIP for the 2006 
PM2.5 NAAQS with respect to the explicit identification and 
regulation of PM2.5 and PM10 condensables does 
``not negate or otherwise undermine the fact that all limits in all 
existing permits in Wisconsin already include condensable PM.''
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    \7\ ``Condensables'' are defined as gases that at ambient 
temperatures, could condense to form particulate matter.
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    Response 5: EPA appreciates the commenter's point that WDNR has 
historically considered some condensable PM in its permits. The SIP-
approved portions of NR 415.09 include references to condensable 
particulate matter, as defined in NR 439.02(4). NR 439 contains the 
requirements for reporting, recordkeeping, testing, inspection, and 
determination of compliance for air contaminant sources and their 
owners and operators. Specifically, NR 439.02(4) defines 
``condensible[sic] particulate matter'' as ``any material, except 
uncombined water, that may not be collected in the front half of the 
particulate emission sampling train but which exists as a solid or 
liquid at standard conditions.'' EPA agrees that WDNR has the authority 
to regulate some condensables, and also agrees with the commenter that 
a final disapproval of portions of Wisconsin's infrastructure SIP for 
the 2006 PM2.5 NAAQS with respect to the explicit 
identification and regulation of PM2.5 and PM10 
condensables does not negate that WDNR has considered some condensable 
particulate matter in its permits. However, at this point in time, the 
State has not revised its SIP to contain the required explicit 
references to condensables that are necessary for purposes of the PSD 
program, and to make that requirement a Federally enforceable part of 
the State's SIP. EPA will continue to work with the State to develop 
SIP revisions that account for PM2.5 and PM10 
condensables in applicability determinations and permitting emissions 
limits, consistent with the 2008 NSR Rule. In the interim, we expect 
the State to correctly account for these condensables in applicability 
determinations and permitting emissions limits.
    Comment 6: MDEQ submitted a comment letter to EPA affirming that 
the State is adopting revisions to its rules that would be wholly 
consistent with the required infrastructure SIP requirements obligated 
by the 2008 NSR Rule and the Phase 2 Rule. MDEQ stated that the 
necessary revisions would be submitted to EPA imminently for 
incorporation into the SIP, specifically before the end of 2012, and 
also included the draft rules reflecting the appropriate revisions. The 
State urged EPA to issue a conditional approval for the relevant 
portions of its infrastructure SIP for the 2006 PM2.5 NAAQS 
in lieu of finalizing a narrow disapproval.
    Response 6: EPA appreciates MDEQ's efforts in adopting revisions to 
its SIP to be wholly consistent with the required infrastructure SIP 
requirements obligated by the 2008 NSR Rule and the Phase 2 Rule. In 
our proposed rulemaking addressing the relevant requirements, EPA noted 
that the State is in the process of adopting required revisions to its 
regulations to: Address pollutants responsible for the secondary 
formation of PM2.5, i.e., precursors; \8\ account for 
condensables in PM2.5 and PM10 applicability 
determinations and emission limits in NSR permits; and, explicitly 
identify oxides of nitrogen (NOX) as a precursor to ozone 
(see FR 77 45995 at 45996-45998). EPA believes that MDEQ's specific 
commitments, including the revisions in progress specific to the 
applicable requirements of the 2008 NSR Rule and the Phase 2 Rule, as 
well as the time frame noted, i.e., prior to the end of 2012, require 
more evaluation. Therefore, in today's rulemaking, EPA is not 
finalizing our proposed disapproval of portions of Michigan's 
infrastructure SIP for the 2006 PM2.5 NAAQS with respect to 
the PSD requirements contained in section

[[Page 65483]]

110(a)(2)(C), section 110(a)(2)(D)(i)(II), and section 110(a)(2)(J) to: 
Identify the precursors to PM2.5 consistent with the 
requirements of the 2008 NSR Rule; account for PM2.5 and 
PM10 condensables in applicability determinations and 
emissions limits for permits consistent with the 2008 NSR Rule; and, 
identify NOX as a precursor to ozone consistent with the 
Phase 2 Rule. EPA will address Michigan's satisfaction of these 
requirements in a separate rulemaking. In the interim, however, EPA 
expects Michigan to adhere to the requirements of the 2008 NSR Rule 
with respect to the treatment and identification of PM2.5 
precursors and the accounting for PM2.5 and PM10 
condensables in applicability determinations and permitting emissions 
limits in its PSD program. We also expect Michigan to treat and 
explicitly identify NOX as a precursor to ozone for PSD 
permitting, consistent with the requirements of the Phase 2 Rule.
---------------------------------------------------------------------------

    \8\ In the 2008 NSR Rule, EPA identified precursors to 
PM2.5 for the PSD program to be sulfur dioxide 
(SO2) and NOX (unless the state demonstrates 
to the Administrator's satisfaction or EPA demonstrates that 
NOX emissions in an area are not a significant 
contributor to that area's ambient PM2.5 concentrations). 
The 2008 NSR Rule also specifies that volatile organic compounds 
(VOCs) are not considered to be precursors to PM2.5 in 
the PSD program unless the state demonstrates to the Administrator's 
satisfaction or EPA demonstrates that emissions of VOCs in an area 
are significant contributors to that area's ambient PM2.5 
concentrations.
---------------------------------------------------------------------------

    Comment 7: Ohio EPA submitted a comment letter to EPA disagreeing 
with our proposed disapproval of portions of its infrastructure SIP for 
the 2006 PM2.5 NAAQS intended to address the relevant 
requirements obligated by the 2008 NSR Rule and the Phase 2 Rule. Ohio 
EPA observes that EPA proposed a narrow disapproval of portions of its 
infrastructure SIP intended to meet the PSD requirements of section 
110(a)(2)(C): Identifying PM2.5 precursors; identifying 
PM2.5 and PM10 condensables in the PSD program; 
and, identifying NOX as a precursor to ozone. Ohio notes 
that our proposed rulemaking states that ``the infrastructure SIP 
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.'' Ohio also notes that under 
section 110(a)(2)(C), states are required to ``include a program'' for 
the regulation of the modification and construction of any stationary 
source to assure that NAAQS are achieved, including a permit program as 
required under parts C and D. Citing Ohio Revised Code (ORC) 3704.03, 
the State argues that the director of Ohio EPA has the authority to 
implement Ohio's NSR program contained in Ohio Administrative Code 
(OAC) 3745-31. Specifically, OAC 3745-31-01 defines ``regulated NSR 
pollutant'' as including 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. 
Therefore, under this authority, Ohio EPA has been applying its PSD 
program in accordance with the 2008 NSR Rule and the Phase 2 Rule, and 
as a result--Ohio EPA meets the requirement of section 110(a)(2)(C) to 
``include a program'' that meets parts C and D. Ohio EPA asserts that 
EPA must approve these elements of Ohio's SIP because the State has met 
the infrastructure SIP requirements for including a program that 
assures the PM2.5 NAAQS is addressed in Ohio's permit 
program, even absent Ohio submitting revisions to its PSD regulations 
as mandated by the 2008 NSR Rule and Phase 2 Rule.
    Response 8: While it is true that Ohio EPA has included a program 
under parts C and D of the CAA in its SIP, and that EPA has approved 
various aspects of the State's PSD program in the past,\9\ EPA 
explained in our proposed rulemaking that the 2008 NSR Rule and Phase 2 
Rule now obligate states to make explicit regulatory changes in order 
to clarify and remove any ambiguity concerning the requirements to 
specifically identify PM2.5 precursors, to properly account 
for PM2.5 and PM10 condensables, and to treat 
NOX as a precursor to ozone in permitting contexts. EPA 
recognizes that Ohio currently has some authority to treat 
SO2 and NOX as presumed precursors to 
PM2.5, and in a similar manner, to treat NOX as a 
precursor to ozone in permitting decisions. Our proposed rulemaking 
also recognized that Ohio EPA is in the process of adopting revisions 
to its PSD program to be wholly consistent with the applicable 
infrastructure SIP requirements obligated by the 2008 NSR Rule and 
Phase 2 Rule (see FR 77 45995 at 45996-45998). EPA's regulations as 
codified in 40 CFR 51.166(b)(49)(i) and 40 CFR 52.21(b)(50)(i) for 
PM2.5 precursors, and 40 CFR 51.166(b)(49)(vi) and 40 CFR 
52.21(b)(50)(vi) for PM2.5 and PM10 condensables, 
required states to make specific revisions by May 16, 2011 (see 73 FR 
28321 at 28341). Because Ohio has not yet made these required 
revisions, however, EPA is finalizing a disapproval of these narrow 
portions of Ohio's infrastructure SIP for the 2006 PM2.5 
NAAQS. Likewise, the changes obligated by the Phase 2 Rule to 
explicitly identify NOX as a precursor to ozone and codified 
in 40 CFR 51.166(b)(1)(ii), 40 CFR 51.166(b)(2)(ii), 40 CFR 
51.166(b)(23)(i), 40 CFR 51.166(49)(i), and footnote 1 to 40 CFR 
51.166(i)(5)(i)(e) required states to submit specific revisions to EPA 
by June 15, 2007 (see 70 FR 71612 at 71683). Because Ohio has not yet 
made these required revisions, EPA is finalizing a disapproval of this 
narrow portion of Ohio's infrastructure SIP for the 2006 
PM2.5 NAAQS.\10\ EPA will work actively with the State to 
ensure that the necessary SIP revisions are completed as expeditiously 
as possible. In the interim, we expect the State to adhere to the 
requirements of the 2008 NSR Rule with respect to the treatment and 
identification of PM2.5 precursors and the accounting for 
PM2.5 and PM10 condensables applicability 
determinations and permitting emissions limits in its PSD program. We 
also expect Ohio to treat and explicitly identify NOX as a 
precursor to ozone for PSD permitting consistent with the requirements 
of the Phase 2 Rule.
---------------------------------------------------------------------------

    \9\ See, e.g., http://www.epa.gov/reg5oair/permits/const/frn-nsr.html.
    \10\ EPA has also taken other actions germane to the explicit 
identification of NOX as a precursor to ozone in 
Federally approved PSD programs, e.g., ``Completeness Findings for 
Section 110(a) State Implementation Plans for the 8-hour Ozone 
NAAQS'' (see 73 FR 16205), and ``Partial Disapproval of 
``Infrastructure'' State Implementation Plan'' for Wisconsin (77 FR 
35870).
---------------------------------------------------------------------------

    Comment 9: WDNR submitted a comment letter to EPA disagreeing with 
our proposed disapproval of portions of its infrastructure SIP for the 
2006 PM2.5 NAAQS intended to address the relevant 
requirements obligated by the 2008 NSR Rule. WDNR states that EPA 
proposed a narrow disapproval of portions of its infrastructure SIP 
intended to meet the PSD requirements of section 110(a)(2)(C): 
Identifying PM2.5 precursors; and, identifying 
PM2.5 and PM10 condensables in the PSD program.
    Wisconsin notes that our proposed rulemaking states that ``the 
infrastructure SIP 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.'' 
Wisconsin also notes that under section 110(a)(2)(C), states are 
required to ``include a program'' for the regulation of the 
modification and construction of any stationary source to assure that 
NAAQS are achieved, including a permit program as required under parts 
C and D of CAA section 110(A)(2). Wisconsin argues that its 
infrastructure SIP submissions have clearly stated that WDNR has the 
resources and authorities necessary to implement and satisfy the 
requirements of section 110(a)(1) and (2) of the CAA for 
PM2.5 and PM10.
    Citing the definition of ``regulated NSR air contaminant'' in 
Wisconsin Administrative Code NR 405.02(25i) as including ``any 
contaminant for which a national ambient air quality standard has been 
promulgated and any

[[Page 65484]]

constituents or precursors for the air contaminant identified by the 
administrator,'' the State asserts that it has been applying the PSD 
program in accordance with the explicit identification of precursor(s) 
to PM2.5 and ozone, consistent with the 2008 NSR Rule and 
Phase 2 Rule. Furthermore, the State observes that all permits issued 
by WDNR address these requirements as codified by EPA, or through EPA 
guidance under the authority provided in Wisconsin State Statute and 
Wisconsin Administrative Code. WDNR therefore contends that it has met 
the requirements of section 110(a)(2)(C) to include a program that 
meets part C and D.
    WDNR also notes that it has been accounting for condensable 
particulate matter in its PSD permitting program since the beginning of 
the program; particulate matter and particulate matter emissions have 
been defined to include condensables since 1989 and have been a part of 
the approved SIP since 1993. Wisconsin asserts that EPA must approve 
these elements of Wisconsin's infrastructure SIP, because WDNR has met 
the applicable requirements.
    Response 9: While it is true that WDNR has included a program 
required under parts C and D of the CAA in its SIP, and EPA has 
approved various aspects of the State's PSD program in the past,\11\ 
EPA explained in our proposed rulemaking that the 2008 NSR Rule and 
Phase 2 Rule now obligate states to make explicit regulatory changes in 
order to clarify and remove any ambiguity concerning the requirements 
to explicitly identify PM2.5 precursors, to properly account 
for PM2.5 and PM10 condensables, and to treat 
NOX as a precursor to ozone in permitting contexts.\12\ Our 
proposed rulemaking referenced Wisconsin's definition of ``regulated 
NSR air contaminant'' as providing generic language to define what 
constitutes a regulated NSR pollutant; however, the State's current 
rules do not contain provisions that would directly account for 
PM2.5 and its precursors in NSR permitting. EPA's 
regulations as codified in 40 CFR 51.166(b)(49)(i) and 40 CFR 
52.21(b)(50)(i) for PM2.5 precursors, required states to 
make specific revisions by May 16, 2011. Because Wisconsin has not yet 
made these required revisions, EPA is finalizing a disapproval of this 
narrow portion of Wisconsin's infrastructure SIP for the 2006 
PM2.5 NAAQS with respect to the explicit identification of 
PM2.5 precursors. With respect to accounting for particulate 
matter condensables in its PSD permitting program, EPA recognizes that 
Wisconsin Administrative Code NR 439 contains the requirements for 
reporting, recordkeeping, testing, inspection, and determination of 
compliance for air contaminant sources and their owners and operators. 
Of note, NR 439.02(4) defines ``condensible [sic] particulate matter'' 
as ``any material, except uncombined water, that may not be collected 
in the front half of the particulate emission sampling train but which 
exists as a solid or liquid at standard conditions.'' However, 
Wisconsin's current SIP does not contain the explicit language to 
account for PM2.5 and PM10 condensables in 
applicability determinations and permitting decisions, as required by 
40 CFR 51.166(b)(49)(vi) and 40 CFR 52.21(b)(50)(vi), and to date, the 
State has not made a submission with such revisions. As a result of 
EPA's own regulations and the May 16, 2011 deadline for submitting 
revisions consistent with the 2008 NSR Rule, we are finalizing the 
disapproval of this narrow portion of Wisconsin's infrastructure SIP 
for the 2006 PM2.5 NAAQS with respect to the explicit 
regulation of PM2.5 and PM10 condensables in 
permits. EPA will work actively with the State to ensure that the 
necessary SIP revisions are completed as expeditiously as possible. We 
will work with Wisconsin to rectify these issues promptly, and in the 
interim, we expect the State to adhere to the requirements of the 2008 
NSR Rule with respect to the treatment and identification of 
PM2.5 precursors and the accounting for PM2.5 and 
PM10 condensables in applicability determinations and 
permitting emissions limits in its PSD program. Although not germane to 
this action, we also expect Wisconsin to treat and explicitly identify 
NOX as a precursor to ozone for PSD permitting consistent 
with the requirements of the Phase 2 Rule.
---------------------------------------------------------------------------

    \11\ See, e.g., http://www.epa.gov/reg5oair/permits/const/frn-nsr.html.
    \12\ Note that EPA has already finalized the disapproval of 
narrow portions of Wisconsin's infrastructure SIP for the 1997 ozone 
and PM2.5 NAAQS with respect to the NOX as a 
precursor to ozone provisions per the Phase 2 Rule (see 77 FR 
35870).
---------------------------------------------------------------------------

III. What action is EPA taking?

    For the reasons discussed in the proposed rulemaking, EPA is taking 
final action to approve most elements and disapprove narrow portions of 
other elements of submissions from the EPA Region 5 States certifying 
that the current SIPs are sufficient to meet the required 
infrastructure elements under sections 110(a)(1) and (2) for the 2006 
PM2.5 NAAQS. EPA is also taking final action to approve 
portions of a submission from Indiana intended to meet EPA's 
requirements for the NSR and PSD programs in that State. Specifically, 
they are: (i) 326 IAC 2-1.1-1(2); (ii) 326 IAC 2-1.1-1(10); (iii) 326 
IAC 2-2-1(dd)(1); (iv) 326 IAC 2-2-1(ff)(7); (v) 326 IAC 2-2-1(ss)(1); 
(vi) 326 IAC 2-2-1(ww)(1)(F); (vii) 326 IAC 2-2-1(ww)(1)(G); and, 
(viii) 326 IAC 2-2-4(b)(2)(vi). As detailed in our proposed rulemaking, 
these revisions are wholly consistent with the infrastructure SIP 
requirements associated with the 2008 NSR Rule and the Phase 2 Rule.
    Due to the current status of CSAPR, EPA is not finalizing our 
previously proposed approval for the interstate transport requirements 
addressing visibility protection of section 110(a)(2)(D)(i)(II) for 
Indiana, Ohio, Minnesota, and Wisconsin for the 2006 PM2.5 
NAAQS. EPA is also not taking any action on Michigan's satisfaction of 
these requirements. As explained in the comments and responses section, 
EPA is finalizing our previously proposed approval of Illinois' 
infrastructure SIP for the interstate transport requirements addressing 
visibility protection of section 110(a)(2)(D)(i)(II).
    As a result of a comment letter submitted by the State of Michigan, 
EPA is not finalizing our previously proposed disapproval of narrow 
portions of section 110(a)(2)(C), section 110(a)(2)(D)(i)(II), and 
section 110(a)(2)(J) for the State. Instead, EPA will address 
Michigan's satisfaction of the applicable PSD requirements obligated by 
the 2008 NSR Rule and the Phase 2 Rule in a separate rulemaking. 
Lastly, as a result of a comment received during the public comment 
period, EPA is not finalizing its proposed approval of the submission 
from Indiana with respect to one narrow issue that relates to section 
110(a)(2)(C), (D)(i)(II), and (J). Specifically, EPA will address the 
PSD source impact analysis requirements for the 2006 PM2.5 
NAAQS in the State of Indiana in a later action.
    EPA's final actions for each Region 5 State's satisfaction of 
infrastructure SIP requirements, by element of section 110(a)(2) are 
contained in the table below.

[[Page 65485]]



----------------------------------------------------------------------------------------------------------------
                 Element                      IL        IN \13\       OH          MI          MN          WI
----------------------------------------------------------------------------------------------------------------
A: Emission limits and other control              A           A           A           A           A           A
 measures...............................
B: Ambient air quality monitoring and             A           A           A           A           A           A
 data system............................
C1: Enforcement of SIP measures.........          A           A           A           A           A           A
C2: PM2.5 precursors for PSD............        * D           A           D          NA         * D           D
C3: PM2.5 and PM10 condensables for PSD.        * D           A           D          NA         * D           D
C4: NOX as a precursor to ozone for PSD.        * D           A           D          NA         * D          NA
C5: GHG permitting thresholds in PSD            * D           A           A           A         * D           A
 regulations............................
D1: Contribute to nonattainment/                 NA          NA          NA          NA          NA          NA
 interfere with maintenance of NAAQS....
D2: PSD.................................         **          **          **          **          **          **
D3: Visibility Protection...............          A          NA          NA          NA          NA          NA
D4: Interstate Pollution Abatement......        * D           A           A           A         * D           A
D5: International Pollution Abatement...          A           A           A           A           A           A
E: Adequate resources...................          A           A           A           A           A           A
E: State boards.........................         NA          NA          NA          NA          NA          NA
F: Stationary source monitoring system..          A           A           A           A           A           A
G: Emergency powers.....................          A           A           A           A           A           A
H: Future SIP revisions.................          A           A           A           A           A           A
I: Nonattainment area plan or plan               NA          NA          NA          NA          NA          NA
 revisions under part D.................
J1: Consultation with government                  A           A           A           A           A           A
 officials..............................
J2: Public notification.................          A           A           A           A           A           A
J3: PSD.................................         **          **          **          **          **          **
J4: Visibility protection...............          +           +           +           +           +           +
K: Air quality modeling and data........          A           A           A           A           A           A
L: Permitting fees......................          A           A           A           A           A           A
M: Consultation and participation by              A           A           A           A           A           A
 affected local entities................
----------------------------------------------------------------------------------------------------------------
In the above table, the key is as follows:
A Approve.
NA No Action/Separate Rulemaking.
D Disapprove.
+ Not relevant in these actions.
* Federally promulgated rules in place.
** Previously discussed in element (C).

    As originally described in the proposed rulemaking, EPA is 
finalizing disapproval of the infrastructure SIP submissions from 
Illinois and Minnesota with respect to certain PSD requirements 
including: (i) The explicit identification of SO2 and 
NOX as PM2.5 precursors consistent with the 
requirements of the 2008 NSR Rule; (ii) the regulation of 
PM2.5 and PM10 condensables consistent with the 
requirements of the 2008 NSR Rule; (iii) the explicit identification of 
NOX as a precursor to ozone consistent with the Phase 2 
Rule; and, (iv) permitting of GHG emitting sources at the Federal 
Tailoring Rule thresholds.
---------------------------------------------------------------------------

    \13\ In addition to the information provided in this table for 
the State of Indiana, EPA reiterates once again that we are not 
finalizing any action with respect to the PSD source impact analysis 
requirements of section 110(a)(2)(C), (D)(i)(II), and (J) for the 
2006 PM2.5 NAAQS.
---------------------------------------------------------------------------

    EPA is also finalizing the disapproval of the infrastructure SIP 
submissions from Illinois and Minnesota with respect to the 
requirements of section 110(a)(2)(D)(ii) related to interstate 
pollution abatement. Specifically, this section requires states with 
PSD programs have provisions requiring a new or modified source to 
notify neighboring states of the potential impacts from the source, 
consistent with the requirements of section 126(a).
    However, Illinois and Minnesota have no further obligations as a 
result of this disapproval because Federally promulgated rules, 
promulgated at 40 CFR 52.21 are in effect in each of these States. EPA 
has delegated the authority to Illinois and Minnesota to administer 
these rules, which include provisions related to PSD and interstate 
pollution abatement. This final disapproval for Illinois and Minnesota 
for these infrastructure SIP requirements will not result in sanctions 
under section 179(a), nor will it obligate EPA to promulgate a FIP 
within two years of final action if the States do not submit revisions 
to their PSD SIPs addressing these deficiencies. Instead, Illinois and 
Minnesota are already subject to the Federally promulgated PSD 
regulations, and both States administer these regulations via EPA's 
delegated authority.
    The grounds for EPA's final disapproval of portions of the 
infrastructure SIP submittals from Ohio and Wisconsin are very narrow, 
and pertain only to these specific deficiencies in the States' SIPs 
described in the relevant sections of the proposed rulemaking, as well 
as in the responses to comments section of today's rulemaking.
    As previously discussed, EPA believes that Ohio has been actively 
preparing necessary revisions to its PSD program, consistent with the 
requirements of the Phase 2 Rule and the 2008 NSR Rule. We will work 
with the State to rectify these issues promptly. In addition, EPA will 
work with WDNR to account for the explicit identification of precursors 
to PM2.5, as well as PM2.5 and PM10 
condensables, in its PSD program.\14\
---------------------------------------------------------------------------

    \14\ Although not specific to this action, EPA will also 
continue to work with WDNR to ensure that revisions to the State's 
PSD program contain provisions that explicitly identify 
NOX as a precursor to ozone, consistent with the Phase 2 
Rule.
---------------------------------------------------------------------------

    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 Ohio or Wisconsin to meet either of those requirements. 
Therefore, 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

[[Page 65486]]

promulgates such FIP. As detailed in the proposed rulemaking, EPA 
anticipates that Ohio EPA will make submissions rectifying each of the 
deficiencies that are the basis for the disapprovals in this action. 
Further, EPA anticipates acting on the anticipated submissions from the 
State within the two year time frame prior to our FIP obligation on 
these very narrow issues. In the interim, EPA expects Ohio to treat and 
explicitly identify NOX as a precursor to ozone for PSD 
permitting consistent with the requirements of the Phase 2 Rule. EPA 
also expects the State to adhere to the requirements of the 2008 NSR 
Rule with respect to the treatment and identification of 
PM2.5 precursors and the accounting for PM2.5 and 
PM10 condensables in applicability determinations and 
permitting emissions limits in its PSD program.
    EPA will actively work with Wisconsin to incorporate changes to its 
PSD program that explicitly identify PM2.5 precursors and 
account for PM2.5 and PM10 condensables in 
applicability determinations and permitting emissions limits, 
consistent with the 2008 NSR Rule. In the interim, EPA expects WDNR to 
adhere to the associated requirements of the 2008 NSR Rule in its PSD 
program, specifically with respect to the explicit identification of 
PM2.5 precursors, and the accounting for PM2.5 
and PM10 condensables in applicability determinations and 
permitting emissions limits.

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve State choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves State law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by State 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; 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, this rule does not have Tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the State, and EPA notes that it will not impose substantial direct 
costs on Tribal governments or preempt Tribal law.

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: September 26, 2012.
Susan Hedman,
Regional Administrator, Region 5.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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

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


0
2. Section 52.731 is amended by adding paragraph (c) to read as 
follows:


Sec.  52.731  Section 110(a)(2) infrastructure requirements.

* * * * *
    (c) Approval and Disapproval--In an August 9, 2011, submittal, and 
supplemented on August 25, 2011, and June 27, 2012, Illinois certified 
that the State has satisfied the infrastructure SIP requirements of 
section 110(a)(2)(A) through (H), and (J) through (M) for the 2006 24-
hour PM2.5 NAAQS. EPA is not taking action on (D)(i)(I) and 
the state board requirements of (E)(ii). Although EPA is disapproving 
portions of Illinois' submission addressing the prevention of 
significant deterioration, Illinois continues to implement the 
Federally promulgated rules for this purpose as they pertain to (C), 
(D)(i)(II), (D)(ii), and (J).

0
3. In Sec.  52.770:
0
a. The table in paragraph (c) is amended by adding an entry in 
numerical order for ``2-1.1-1'', and revising the entries for ``2-2-
1'', and ``2-2-4''.
0
b. The table in paragraph (e) is amended by adding entries in 
alphabetical order for ``Section 110(a)(2) Infrastructure Requirements 
for the 2006 24-Hour PM2.5 NAAQS''.
    The revised and added text reads as follows:


Sec.  52.770  Identification of plan.

* * * * *
    (c) * * *

                                        EPA-Approved Indiana Regulations
----------------------------------------------------------------------------------------------------------------
   Indiana citation           Subject          Indiana effective date    EPA approval date          Notes
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
2-1.1-1..............  Definitions.........  July 11, 2012............  October 29 2012,     (2) and (10) only.
                                                                         [Insert page
                                                                         number where the
                                                                         document begins].
 

[[Page 65487]]

 
                                                  * * * * * * *
2-2-1................  Definitions.........  July 11, 2012............  October 29 2012,     (dd)(1), (ff)(7),
                                                                         [Insert page         (ss)(1),
                                                                         number where the     (ww)(1)(F), and
                                                                         document begins].    (ww)(1)(G) only.
 
                                                  * * * * * * *
2-2-4................  Air quality           July 11, 2012............  October 29 2012,     (b)(2)(vi) only.
                        analysis;                                        [Insert page
                        requirements.                                    number where the
                                                                         document begins].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
    (e) * * *

                       EPA-Approved Indiana Nonregulatory and Quasi-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
               Title                      Indiana date            EPA approval               Explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 110(a)(2) Infrastructure     10/20/2009, 6/25/2012,  10/29/2012, [Insert     This action addresses the
 Requirements for the 2006 24-Hour    7/12/2012.              page number where the   following CAA elements:
 PM2.5 NAAQS.                                                 document begins].       110(a)(2)(A), (B), (C),
                                                                                      (D)(i)(II), (D)(ii), (E),
                                                                                      (F), (G), (H), (J), (K),
                                                                                      (L), and (M). We are not
                                                                                      finalizing action on the
                                                                                      PSD source impact analysis
                                                                                      requirements of section
                                                                                      110(a)(2)(C), (D)(i)(II),
                                                                                      and (J), the visibility
                                                                                      protection requirements of
                                                                                      (D)(i)(II), and the state
                                                                                      board requirements of
                                                                                      (E)(ii). We will address
                                                                                      these requirements in a
                                                                                      separate action.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


0
4. In Sec.  52.1170, the table in paragraph (e) is amended by adding an 
entry at the end of the table for ``Section 110(a)(2) Infrastructure 
Requirements for the 2006 24-Hour PM2.5 NAAQS'' to read as 
follows:


Sec.  52.1170  Identification of plan.

* * * * *
    (e) * * *

                       EPA-Approved Michigan Nonregulatory and Quasi-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
   Name of nonregulatory SIP    Applicable geographic   State submittal    EPA approval
           provision            or nonattainment area        date              date               Comments
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 110(a)(2)               Statewide............  8/15/2011, 7/9/   10/29/2012,       This action addresses
 Infrastructure Requirements                            2012.             [Insert page      the following CAA
 for the 2006 24-Hour PM2.5                                               number where      elements:
 NAAQS.                                                                   the document      110(a)(2)(A), (B),
                                                                          begins].          (C), (D)(i)(II),
                                                                                            (D)(ii), (E), (F),
                                                                                            (G), (H), (J), (K),
                                                                                            (L), and (M). We are
                                                                                            not taking action on
                                                                                            the visibility
                                                                                            protection
                                                                                            requirements of
                                                                                            (D)(i)(II) and the
                                                                                            state board
                                                                                            requirements of
                                                                                            (E)(ii). We will
                                                                                            address these
                                                                                            requirements in a
                                                                                            separate action. We
                                                                                            are taking no action
                                                                                            on portions of
                                                                                            Michigan's
                                                                                            infrastructure SIP
                                                                                            submission
                                                                                            addressing the
                                                                                            relevant prevention
                                                                                            of significant
                                                                                            deterioration
                                                                                            requirements of the
                                                                                            2008 NSR Rule
                                                                                            (identifying PM2.5
                                                                                            precursors, and the
                                                                                            regulation of PM2.5
                                                                                            and PM10
                                                                                            condensables in
                                                                                            permits) and the
                                                                                            Phase 2 Rule
                                                                                            (identification of
                                                                                            NOX as a precursor
                                                                                            to ozone) with
                                                                                            respect to section
                                                                                            110(a)(2)(C),
                                                                                            (D)(i)(II), and (J).
----------------------------------------------------------------------------------------------------------------


0
5. In Sec.  52.1220, the table in paragraph (e) is amended by adding an 
entry in alphabetical order for ``Section 110(a)(2) Infrastructure 
Requirements for the 2006 24-Hour PM2.5 NAAQS'' to read as 
follows:


Sec.  52.1220  Identification of plan.

* * * * *
    (e) * * *

[[Page 65488]]



                                 EPA-Approved Minnesota Nonregulatory Provisions
----------------------------------------------------------------------------------------------------------------
                                      Applicable        State submittal
   Name of nonregulatory SIP        geographic or       date/ effective    EPA approved           Comments
           provision              nonattainment area         date              date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 110(a)(2)               Statewide............  5/23/2011, 6/27/  10/29/2012,       This action addresses
 Infrastructure Requirements                            2012 (submittal   [Insert page      the following CAA
 for the 2006 24-Hour Ozone                             dates).           number where      elements:
 NAAQS.                                                                   the document      110(a)(2)(A), (B),
                                                                          begins].          (C), (D)(i)(II),
                                                                                            (D)(ii), (E), (F),
                                                                                            (G), (H), (J), (K),
                                                                                            (L), and (M). We are
                                                                                            not finalizing
                                                                                            action on the
                                                                                            visibility
                                                                                            protection
                                                                                            requirements of
                                                                                            (D)(i)(II) or the
                                                                                            state board
                                                                                            requirements of
                                                                                            (E)(ii). We will
                                                                                            address these
                                                                                            requirements in a
                                                                                            separate action.
                                                                                            Although EPA is
                                                                                            disapproving
                                                                                            portions of
                                                                                            Minnesota's
                                                                                            submission
                                                                                            addressing the
                                                                                            prevention of
                                                                                            significant
                                                                                            deterioration,
                                                                                            Minnesota continues
                                                                                            to implement the
                                                                                            Federally
                                                                                            promulgated rules
                                                                                            for this purpose as
                                                                                            they pertain to
                                                                                            section
                                                                                            110(a)(2)(C),
                                                                                            (D)(i)(II), (D)(ii),
                                                                                            and (J).
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


0
6. Section 52.1891 is amended by adding paragraph (c) to read as 
follows:


Sec.  52.1891  Section 110(a)(2) infrastructure requirements.

* * * * *
    (c) Approval and Disapproval--In a September 4, 2009 submittal, 
supplemented on June 3, 2011, and July 5, 2012, Ohio certified that the 
State has satisfied the infrastructure SIP requirements of section 
110(a)(2)(A) through (H), and (J) through (M) for the 2006 24-hour 
PM2.5 NAAQS. We are not finalizing action on the visibility 
protection requirements of (D)(i)(II) or the state board requirements 
of (E)(ii). We will address these requirements in a separate action. We 
are disapproving narrow portions of Ohio's infrastructure SIP 
submission addressing the relevant prevention of significant 
deterioration requirements of the 2008 NSR Rule (identifying 
PM2.5 precursors, and the regulation of PM2.5 and 
PM10 condensables in permits) and the Phase 2 Rule 
(identification of NOX as a precursor to ozone) with respect 
to section 110(a)(2)(C), (D)(i)(II), and (J).

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


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

* * * * *
    (e) Approval and Disapproval--In a January 24, 2011, submittal, 
supplemented on March 28, 2011, and June 29, 2012, Wisconsin certified 
that the State has satisfied the infrastructure SIP requirements of 
section 110(a)(2)(A) through (H), and (J) through (M) for the 2006 24-
hour PM2.5 NAAQS. We are not finalizing action on (D)(i)(I), 
the visibility protection requirements of (D)(i)(II), and the state 
board requirements of (E)(ii). We will address these requirements in a 
separate action. We are disapproving narrow portions of Wisconsin's 
infrastructure SIP submission addressing the relevant prevention of 
significant deterioration requirements of the 2008 NSR Rule 
(identifying PM2.5 precursors and the regulation of 
PM2.5 and PM10 condensables in permits) with 
respect to section 110(a)(2)(C), (D)(i)(II), and (J).

[FR Doc. 2012-26289 Filed 10-26-12; 8:45 am]
BILLING CODE 6560-50-P


