
[Federal Register Volume 81, Number 190 (Friday, September 30, 2016)]
[Proposed Rules]
[Pages 67261-67266]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-23689]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2016-0134; FRL-9953-51-Region 5]


Air Plan Approval; Wisconsin; NOX as a Precursor to Ozone, PM2.5 
Increment Rules and PSD Infrastructure SIP Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing 
approval of a revision to Wisconsin's state implementation plan (SIP), 
revising portions of the State's Prevention of Significant 
Deterioration (PSD) and ambient air quality programs to address 
deficiencies identified in EPA's previous narrow infrastructure SIP 
disapprovals and Finding of Failure to Submit. This SIP revision 
request is consistent with the Federal PSD rules and addresses the 
required elements of the fine particulate matter (PM2.5) PSD 
Increments, Significant Impact Levels (SILs) and Significant Monitoring 
Concentration (SMC) Rule. EPA is also proposing to approve elements of 
SIP submissions from Wisconsin regarding PSD infrastructure 
requirements of section 110 of the Clean Air Act (CAA) for the 1997 
PM2.5, 1997 ozone, 2006 PM2.5, 2008 lead, 2008 
ozone, 2010 nitrogen dioxide (NO2), 2010 sulfur dioxide 
(SO2), and 2012 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.

DATES: Comments must be received on or before October 31, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2016-0134 at http://www.regulations.gov, or via email to 
damico.genevieve@epa.gov. For comments submitted at Regulations.gov, 
follow the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment.

[[Page 67262]]

The written comment is considered the official comment and should 
include discussion of all points you wish to make. EPA will generally 
not consider comments or comment contents located outside of the 
primary submission (i.e. on the web, cloud, or other file sharing 
system). For additional submission methods, please contact the person 
identified in the FOR FURTHER INFORMATION CONTACT section. For the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Andrea Morgan, Environmental Engineer, 
Air Permitting Section, Air Programs Branch (AR-18J), Environmental 
Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, 
Illinois 60604, (312) 353-6058, morgan.andrea@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?
II. What is EPA's review of these SIP submissions?
III. What action is EPA taking?
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

I. What is the background of these SIP submissions?

    On August 8, 2016, the Wisconsin Department of Natural Resources 
(WDNR) submitted a SIP revision request to EPA to revise portions of 
its PSD and ambient air quality programs to address deficiencies 
identified in EPA's previous narrow infrastructure SIP disapprovals and 
Finding of Failure to Submit (FFS). Final approval of this SIP revision 
request will be consistent with the Federal PSD requirements and will 
address the required elements of the PM2.5 PSD Increments, 
SILs and SMC Rule. Wisconsin submitted revisions to its rules NR 404 
and 405 of the Wisconsin Administrative Code. The submittal requests 
that EPA approve the following revisions to Wisconsin's SIP: (1) Amend 
NR 404.05 (2) (intro); (2) create NR 404.05(2) (am); (3) amend NR 
404.05(3) (intro); (4) create NR 404.05(3) (am); (5) amend NR 404.05(4) 
(intro); (6) create NR 404.05(4) (am); (7) amend NR 405.02(3), (21)(a), 
and (21m)(a); (8) create NR 405.02(21m)(c); (9) amend NR 405.02(22)(b) 
and (22m)(a)1. and (b)1.; (10) create NR 405.02(22m)(a)3.; (11) amend 
NR 405.02(27)(a)6.; (12) amend NR 405.07(8)(a)3m; (13) create NR 
405.07(8)(a)3m (Note); and (14) amend NR 405.07(8)(a)5. (Note).
    WDNR also requested that this SIP revision supplement the PSD 
portions of its previously submitted infrastructure submittals, 
including 1997 PM2.5, 1997 ozone, 2006 PM2.5, 
2008 lead, 2008 ozone, 2010 NO2, SO2, and 2012 
PM2.5.

A. PSD Rule Revisions

1. PM2.5 Increments
    To implement the PM2.5 NAAQS, EPA issued two separate 
final rules that establish the New Source Review (NSR) permitting 
requirements for PM2.5: The NSR PM2.5 
Implementation Rule promulgated on May 16, 2008 (73 FR 28321), and the 
PM2.5 PSD Increments, SILs and SMC Rule promulgated on 
October 20, 2010 (75 FR 64864). EPA's 2008 NSR PM2.5 
Implementation Rule required states to submit applicable SIP revisions 
to EPA no later than May 16, 2011, to address this rule's PSD and 
nonattainment NSR SIP requirements. This rule requires that the state 
submit revisions to its SIP, including the identification of precursors 
for PM2.5, the significant emissions rates for 
PM2.5 and the requirement to include emissions which may 
condense to form particulate matter at ambient temperatures, known as 
condensables, in permitting decisions. EPA published a final approval 
of a revision to Wisconsin's SIP on October 16, 2014, (79 FR 62008), 
which included all of the required elements of the 2008 NSR 
Implementation Rule.
    The PM2.5 PSD Increments, SILs and SMC Rule required 
states to submit SIP revisions to EPA by July 20, 2012, adopting 
provisions equivalent to or at least as stringent as the 
PM2.5 PSD increments and associated implementing 
regulations. On August 11, 2014, EPA published a finding that Wisconsin 
had failed to submit the required elements of the PM2.5 PSD 
Increments, SILs and SMC Rule (79 FR 46703).
    The PM2.5 PSD Increments, SILs and SMC Rule also allows 
states to discretionarily adopt and submit for EPA approval: (1) SILs, 
which are used as a screening tool to evaluate the impact a proposed 
new major source or major modification may have on the NAAQS or PSD 
increment; and (2) a SMC (also a screening tool), which is used to 
determine the subsequent level of data gathering required for a PSD 
permit application for emissions of PM2.5. However, on 
January 22, 2013, the United States Court of Appeals for the District 
of Columbia (Court) granted a request from EPA to vacate and remand to 
EPA the portions of the PM2.5 PSD Increments, SILs and SMC 
Rule PM2.5 addressing the SILs for PM2.5 so that 
EPA could voluntarily correct an error in these provisions. The Court 
also vacated parts of the PM2.5 PSD Increments, SILs and SMC 
Rule establishing a PM2.5 SMC, finding that EPA was 
precluded from using the PM2.5 SMCs to exempt permit 
applicants from the statutory requirement to compile preconstruction 
monitoring data. Sierra Club v. EPA, 705 F.3d 458, 463-69. On December 
9, 2013, EPA issued a good cause final rule formally removing the 
affected SILs and replacing the SMC with a numeric value of 0 
micrograms per cubic meter ([mu]g/m\3\) and a note that no exemption is 
available with regard to PM2.5. See 78 FR 73698. As a 
result, SIP submittals could no longer include the vacated 
PM2.5 SILs at 40 CFR 51.166(k)(2) and 52.21(k)(2) and the 
PM2.5 SMC must be revised to 0 [mu]g/m\3\, consistent with 
40 CFR 51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c).
2. Ozone
    On November 29, 2005, EPA published (70 FR 71612) in the Federal 
Register the ``Final Rule to Implement the 8-Hour Ozone National 
Ambient Air Quality Standard--Phase 2''. Part of this rule established, 
among other requirements, oxides of nitrogen (NOX) as a 
precursor to ozone. The final rule became effective on January 30, 
2006.
    On October 6, 2015, EPA finalized approval of revisions to 
Wisconsin's SIP that included the identification of NOX as a 
precursor to ozone in the definition of regulated NSR pollutant. See 79 
FR 60064.

B. Infrastructure SIP Submittals

    The requirement for states to make a SIP submission of this type 
arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), 
states must make SIP submissions ``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 submissions are to provide for the 
``implementation, maintenance, and enforcement'' of such NAAQS. The 
statute directly imposes on states the duty to make these SIP 
submissions, and the requirement to make the submissions 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'' submission must address.
    This specific rulemaking is only taking action on the PSD elements 
of the Wisconsin infrastructure submittals.

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Separate action has been or will be taken on the non-PSD infrastructure 
elements in separate rulemakings. The infrastructure elements for PSD 
are found in CAA 110(a)(2)(C), 110(a)(2)(D), and 110(a)(2)(J) and will 
be discussed in detail below. For further discussion on the background 
of infrastructure submittals, see 77 FR 45992.

II. What is EPA's review of these SIP submissions?

A. PSD Rule Revisions

    EPA has evaluated WDNR's proposed revision to the Wisconsin SIP in 
accordance with the Federal requirements governing state permitting 
programs. The revisions described in section I above are intended to 
update the Wisconsin SIP to comply with the current rules and address 
deficiencies identified by EPA in its previous SIP disapprovals. As 
discussed below, EPA is proposing to approve these revisions because 
they meet Federal requirements.
1. PM2.5
    The PM2.5 PSD Increments, SILs and SMC Rule finalized 
several new requirements for states to revise their SIPs to incorporate 
increments for PM2.5. Specifically, the rule requires a 
state's submitted PSD SIP revision to adopt and submit for EPA approval 
the PM2.5 increments issued pursuant to section 166(a) of 
the CAA to prevent significant deterioration of air quality in areas 
meeting the NAAQS. States were also required to adopt and submit for 
EPA approval revisions to the definitions for ``major source baseline 
date,'' ``minor source baseline date,'' and ``baseline area'' as part 
of the implementing regulations for the PM2.5 increments. 
The PM2.5 increments are codified in 40 CFR 51.166(c)(1) and 
40 CFR 52.21(c)(1). For class I areas the maximum allowable increase is 
codified as 1 [mu]g/m\3\ determined on an annual arithmetic mean, and a 
24-hr maximum of 2 [mu]g/m\3\. For class II areas the maximum allowable 
increase is 4 [mu]g/m\3\ determined on an annual arithmetic mean, and a 
24-hr maximum of 9 [mu]g/m\3\. For class III areas the maximum 
allowable increase is 8 [mu]g/m\3\ determined on an annual arithmetic 
mean, and a 24-hr maximum of 18 [mu]g/m\3\. Wisconsin incorporated 
these maximum allowable increases for PM2.5 into their rules 
at NR 404.05(2) (intro) and (am); NR 404.05(3) (intro) and (am); and NR 
404.05(4) (intro) and (am) for the class I, class II, and class III 
increments, respectively. As Wisconsin has utilized the same maximum 
allowable increases as the Federal regulations, their revisions are 
found to be consistent with the Federal regulations.
    States were also required to adopt and submit for EPA approval 
revisions to the definitions for ``major source baseline date,'' 
``minor source baseline date,'' and ``baseline area'' as part of the 
implementing regulations for the PM2.5 increments. 
Wisconsin's revisions to the definition of ``major source baseline 
date,'' at NR 405.02(21m)(a) and (c), clarifies that the baseline date 
for particulate matter less than 10 micrometers (PM10) is 
January 6, 1975, and adds October 20, 2010, as the major source 
baseline date for PM2.5. This is consistent with the Federal 
definition at 40 CFR 51.166(b)(14)(i). Wisconsin's revisions to the 
definition of ``minor source baseline date'' at NR 405.02(22m)(a)1. and 
3., clarify that the trigger date for PM10 is January 6, 
1975, and establish October 20, 2011, as the trigger date for 
PM2.5. The revisions to NR 405.02(22m)(b)(1) revise the 
definition of baseline date to update references to the U.S. Code of 
Federal Regulations. These revisions are consistent with the definition 
of ``minor source baseline date'' at 40 CFR 51.166(b)(14)(ii). The 
State revised the definition of ``Baseline area'' at NR 405.02(3) to 
explicitly identify pollutant air quality impacts that would define a 
baseline area where a minor source baseline date is already 
established. This revision is consistent with 40 CFR 
51.166(b)(14)(ii)(c).
    Wisconsin also revised provisions pertaining to the 
PM2.5 SMC to be consistent with Federal requirements after 
the January 22, 2013, Court decision. WDNR's revision to NR 
405.07(8)(a)3m. revises the PM2.5 SMC to 0 [mu]g/m\3\ and NR 
405.07(8)(a)3m.(Note) adds a note that no exemption is available with 
regard to PM2.5. These revisions are consistent with the 
language in 40 CFR 51.166(i)(5)(i)(c) regarding the SMC for 
PM2.5.
2. Ozone
    The ``Final Rule to Implement the 8-Hour Ozone National Ambient Air 
Quality Standard--Phase 2'' required states to make revisions to their 
PSD programs to establish NOX as a precursor to ozone. 
Specifically, NOX was required to be identified as a 
precursor to ozone in the definition of major stationary source, the 
definition of major modification, the definition of significant, the 
definition of regulated NSR pollutant, and the SMC for ozone.
    Wisconsin's revisions to the definition of ``major modification'' 
in NR 405.02(21)(a) states that any net emission increase at major 
stationary source that is significant for NOX or volatile 
organic compounds (VOCs) shall be considered significant for ozone. 
This is consistent with the Federal requirements of 40 CFR 
51.166(b)(2)(ii). Wisconsin's revisions to the definition of ``Major 
Stationary Source'' at NR 405.02(22)(b) add that a major stationary 
source that is major for NOX shall be considered major for 
ozone. This is consistent with the Federal definition at 40 CFR 
51.166(b)(1). Wisconsin's revisions to NR 405.07(8)(a)5.(note) revise 
the SMC for ozone to provide that sources with a net increase of 100 
tons per year of NOX need to perform an ambient impact 
analysis for ozone. This matches the note at 40 CFR 
51.166(i)(5)(i)(f).\1\ The revisions to the definition of 
``Significant'' at NR 405.02(27)(a)6. adds a significant emission rate 
for ozone of 40 tons per year of nitrogen oxides. This is consistent 
with the Federal requirements of 40 CFR 51.166(b)(23)(i).
    Because Wisconsin's requested revisions are consistent with the 
applicable requirements found in Federal regulations, EPA is proposing 
to approve the requested revisions.

B. Infrastructure SIP Submittals

    PSD infrastructure elements are addressed in different sections of 
the CAA: Sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), and 110(a)(2)(J).
1. Section 110(a)(2)(C)--Program for Enforcement of Control Measures; 
PSD
    States are required to include a program providing for enforcement 
of all SIP measures and the regulation of construction of new or 
modified stationary sources to meet NSR requirements under PSD and 
nonattainment new source review (NNSR) programs. Part C of the CAA 
(sections 160-169B) addresses PSD, while part D of the CAA (sections 
171-193) addresses NNSR requirements.
    The evaluation of each state's submission addressing the 
infrastructure SIP requirements of section 110(a)(2)(C) covers: (i) 
Enforcement of SIP measures; (ii) PSD provisions that explicitly 
identify NOX as a precursor to ozone in the PSD program; 
(iii) identification of precursors to PM2.5 and the 
identification of PM2.5 and PM10 \1\ condensables 
in the PSD program; (iv) PM2.5 increments in the PSD 
program;

[[Page 67264]]

and, (v) Greenhouse Gas (GHG) permitting and the ``Tailoring Rule.'' 
\2\
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    \1\ PM10 refers to particles with diameters less than 
10 microns, oftentimes referred to as ``coarse'' particles.
    \2\ EPA highlights 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, ``Guidance on Infrastructure State Implementation Plan 
(SIP) Elements under Clean Air Act Sections 110(a)(1) and (2)'' 
(2013 memo).
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(i) Enforcement of SIP Measures
    The enforcement of SIP measures provision was approved in previous 
rulemakings.
(ii) PSD Provisions That Explicitly Identify NOX as a 
Precursor to Ozone in the PSD Program
    EPA's ``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) was published on November 29, 2005 (see 70 FR 71612). Among 
other requirements, the Phase 2 Rule obligated states to revise their 
PSD programs to explicitly identify NOX as a precursor to 
ozone (70 FR 71612 at 71679, 71699-71700). This requirement was 
codified in 40 CFR 51.166.
    The Phase 2 Rule required that states submit SIP revisions 
incorporating the requirements of the rule, including those identifying 
NOX as a precursor to ozone, by June 15, 2007 (see 70 FR 
71612 at 71683, November 29, 2005).
    EPA is proposing to approve revisions to Wisconsin's PSD SIP 
reflecting these requirements in today's rulemaking, and therefore is 
proposing to find that Wisconsin has met this set of infrastructure SIP 
requirements of section 110(a)(2)(C) with respect to the 1997 
PM2.5, 1997 ozone, 2006 PM2.5, 2008 lead, 2008 
ozone, 2010 NO2, 2010 SO2, and 2012 
PM2.5 NAAQS.
(iii) Identification of Precursors to PM2.5 and the 
Identification of PM2.5 and PM10 Condensables in 
the PSD Program
    On May 16, 2008 (see 73 FR 28321), EPA issued the Final Rule on the 
``Implementation of the New Source Review Program for Particulate 
Matter Less than 2.5 Micrometers'' (2008 NSR Rule). The 2008 NSR Rule 
finalized several new requirements for SIPs to address sources that 
emit direct PM2.5 and other pollutants that contribute to 
secondary PM2.5 formation. One of these requirements is for 
NSR permits to address pollutants responsible for the secondary 
formation of PM2.5, otherwise known as precursors. In the 
2008 rule, EPA identified precursors to PM2.5 for the PSD 
program to be 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 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.
    The explicit references to SO2, NOX, and VOCs 
as they pertain to secondary PM2.5 formation are codified at 
40 CFR 51.166(b)(49)(i)(b) and 40 CFR 52.21(b)(50)(i)(b). As part of 
identifying pollutants that are precursors to PM2.5, the 
2008 NSR Rule also required states to revise the definition of 
``significant'' as it relates to a net emissions increase or the 
potential of a source to emit pollutants. Specifically, 40 CFR 
51.166(b)(23)(i) and 40 CFR 52.21(b)(23)(i) define ``significant'' for 
PM2.5 to mean the following emissions rates: 10 Tons per 
year (tpy) of direct PM2.5; 40 tpy of SO2; and 40 
tpy of 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 deadline for states to 
submit SIP revisions to their PSD programs incorporating these changes 
was May 16, 2011 (see 73 FR 28321 at 28341).\3\
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    \3\ EPA notes that on January 4, 2013, the U.S. Court of Appeals 
for the D.C. Circuit, in Natural Resources Defense Council v. EPA, 
706 F.3d 428 (D.C. Cir.), held that EPA should have issued the 2008 
NSR Rule in accordance with the CAA's requirements for 
PM10 nonattainment areas (Title I, Part D, subpart 4), 
and not the general requirements for nonattainment areas under 
subpart 1. As the subpart 4 provisions apply only to nonattainment 
areas, EPA does not consider the portions of the 2008 rule that 
address requirements for PM2.5 attainment and 
unclassifiable areas to be affected by the court's opinion. 
Moreover, EPA does not anticipate the need to revise any PSD 
requirements promulgated by the 2008 NSR Rule in order to comply 
with the court's decision. Accordingly, EPA's approval of 
Wisconsin's infrastructure SIP as to elements (C), (D)(i)(II), or 
(J) with respect to the PSD requirements promulgated by the 2008 
implementation rule does not conflict with the court's opinion.
    The court's decision with respect to the nonattainment NSR 
requirements promulgated by the 2008 implementation rule also does 
not affect EPA's action on the present infrastructure action. EPA 
interprets the CAA to exclude nonattainment area requirements, 
including requirements associated with a nonattainment NSR program, 
from infrastructure SIP submissions due three years after adoption 
or revision of a NAAQS. Instead, these elements are typically 
referred to as nonattainment SIP or attainment plan elements, which 
would be due by the dates statutorily prescribed under subparts 2 
through 5 under part D, extending as far as 10 years following 
designations for some elements.
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    The 2008 NSR Rule did not require states to immediately account for 
gases that could condense to form particulate matter, known as 
condensables, in PM2.5 and PM10 emission limits 
in NSR permits. Instead, EPA determined that states had to account for 
PM2.5 and PM10 condensables for applicability 
determinations and in establishing emissions limitations for 
PM2.5 and PM10 in PSD permits beginning on or 
after January 1, 2011. This requirement is codified in 40 CFR 
51.166(b)(49)(i)(a) and 40 CFR 52.21(b)(50)(i)(a). Revisions to states' 
PSD programs incorporating the inclusion of condensables were required 
be submitted to EPA by May 16, 2011 (see 73 FR 28321 at 28341).
    EPA approved revisions to Wisconsin's PSD SIP reflecting these 
requirements on October 16, 2014 (see 79 FR 62008), and therefore 
proposes that Wisconsin has met this set of infrastructure SIP 
requirements of section 110(a)(2)(C) with respect to the 1997 
PM2.5, 1997 ozone, 2006 PM2.5, 2008 lead, 2008 
ozone, 2010 NO2, 2010 SO2, and 2012 
PM2.5 NAAQS.
(iv) PM2.5 Increments in the PSD Program
    On October 20, 2010, EPA issued the final rule on the ``Prevention 
of Significant Deterioration for Particulate Matter Less Than 2.5 
Micrometers--Increments, Significant Impact Levels and Significant 
Monitoring Concentration'' (2010 NSR Rule). This rule established 
several components for making PSD permitting determinations for 
PM2.5, including a system of ``increments,'' which is the 
mechanism used to estimate significant deterioration of ambient air 
quality for a pollutant. These increments are codified in 40 CFR 
51.166(c) and 40 CFR 52.21(c), and are included in the table below.

Table 1--PM2.5 Increments Established by the 2010 NSR Rule in Micrograms
                             per Cubic Meter
------------------------------------------------------------------------
                                                   Annual
                                                 arithmetic    24-hour
                                                    mean         max
------------------------------------------------------------------------
Class I.......................................            1            2
Class II......................................            4            9
Class III.....................................            8           18
------------------------------------------------------------------------


[[Page 67265]]

    The 2010 NSR Rule also established a new ``major source baseline 
date'' for PM2.5 as October 20, 2010, and a new trigger date 
for PM2.5 as October 20, 2011. These revisions are codified 
in 40 CFR 51.166(b)(14)(i)(c) and (b)(14)(ii)(c), and 40 CFR 
52.21(b)(14)(i)(c) and (ii)(c). Lastly, the 2010 NSR Rule revised the 
definition of ``baseline area'' to include a level of significance of 
0.3 micrograms per cubic meter, annual average, for PM2.5. 
This change is codified in 40 CFR 51.166(b)(15)(i) and 40 CFR 
52.21(b)(15)(i).
    EPA is proposing to approve revisions to Wisconsin's PSD SIP 
reflecting these requirements in today's rulemaking, and therefore is 
proposing to find that Wisconsin has met this set of infrastructure SIP 
requirements for section 110(a)(2)(C) with respect to the 1997 
PM2.5, 1997 ozone, 2006 PM2.5, 2008 lead, 2008 
ozone, 2010 NO2, 2010 SO2, and 2012 
PM2.5 NAAQS.
(v) GHG Permitting and the ``Tailoring Rule''
    With respect to CAA Sections 110(a)(2)(C) and (J), EPA interprets 
the CAA to require each state to make an infrastructure SIP submission 
for a new or revised NAAQS that demonstrates that the air agency has a 
complete PSD permitting program meeting the current requirements for 
all regulated NSR pollutants. The requirements of section 
110(a)(2)(D)(i)(II) may also be satisfied by demonstrating the air 
agency has a complete PSD permitting program correctly addressing all 
regulated NSR pollutants. Wisconsin has shown that it currently has a 
PSD program in place that covers all regulated NSR pollutants, 
including GHGs.
    On June 23, 2014, the United States Supreme Court issued a decision 
addressing the application of PSD permitting requirements to GHG 
emissions. Utility Air Regulatory Group v. Environmental Protection 
Agency, 134 S.Ct. 2427. The Supreme Court said that the EPA may not 
treat GHGs as an air pollutant for purposes of determining whether a 
source is a major source required to obtain a PSD permit. The Court 
also said that the EPA could continue to require that PSD permits, 
otherwise required based on emissions of pollutants other than GHGs, 
contain limitations on GHG emissions based on the application of Best 
Available Control Technology (BACT).
    In order to act consistently with its understanding of the Court's 
decision, the EPA no longer applies EPA regulations that would require 
that SIPs include the permitting requirements that the Supreme Court 
found impermissible. Specifically, EPA is not applying the requirement 
that a state's SIP-approved PSD program require that sources obtain PSD 
permits when GHGs are the only pollutant (i) that the source emits or 
has the potential to emit above the major source thresholds, or (ii) 
for which there is a significant emissions increase and a significant 
net emissions increase from a modification (e.g. 40 CFR 
51.166(b)(48)(v)).
    EPA anticipates a need to revise Federal PSD rules and for many 
states to revise their existing SIP-approved PSD programs in light of 
the Supreme Court opinion. The timing and content of subsequent EPA 
actions with respect to the EPA regulations and state PSD program 
approvals are expected to be informed by additional legal process 
before the United States Court of Appeals for the District of Columbia. 
At this juncture, EPA is not expecting states to have revised their PSD 
programs for purposes of infrastructure SIP submissions and is only 
evaluating such submissions to ensure that the state's program 
correctly addresses GHGs consistent with the Supreme Court's decision.
    At present, EPA is proposing that Wisconsin's SIP is sufficient to 
satisfy sections 110(a)(2)(C), (D)(i)(II), and (J) with respect to 
GHGs, because the PSD permitting program previously approved by EPA 
into the SIP continues to require that PSD permits (otherwise required 
based on emissions of pollutants other than GHGs) contain limitations 
on GHG emissions based on the application of BACT. Although the 
approved Wisconsin PSD permitting program may currently contain 
provisions that are no longer necessary in light of the Supreme Court 
decision, this does not render the infrastructure SIP submission 
inadequate to satisfy Section 110(a)(2)(C), (D)(i)(II), and (J). The 
SIP contains the necessary PSD requirements and the application of 
those requirements is not impeded by the presence of other previously-
approved provisions regarding the permitting of sources of GHGs that 
EPA does not consider necessary at this time in light of the Supreme 
Court decision.
    For the purposes infrastructure SIPs, EPA reiterates that NSR 
Reform regulations are not within the scope of these actions. 
Therefore, we are not taking action on existing NSR Reform regulations 
for Wisconsin. EPA approved Wisconsin's minor NSR program on January 
18, 1995 (see 60 FR 3543); and since that date, WDNR and EPA have 
relied on the existing minor NSR program to ensure that new and 
modified sources not captured by the major NSR permitting programs do 
not interfere with attainment and maintenance of the NAAQS.
    Certain sub-elements in this section overlap with elements of 
section 110(a)(2)(D)(i) and 110(a)(2)(J). These links will be discussed 
in the appropriate areas below.
2. Section 110(a)(2)(D)(i)(II)--Interstate Transport
    Section 110(a)(2)(D)(i)(II) requires that SIPs include provisions 
prohibiting any source or other type of emissions activity in one state 
from interfering with measures required to prevent significant 
deterioration of air quality or to protect visibility in another state.
    EPA notes that Wisconsin's satisfaction of the applicable 
infrastructure SIP PSD requirements for the 1997 PM2.5, 1997 
ozone, 2006 PM2.5, 2008 lead, 2008 ozone, 2010 
NO2, 2010 SO2, and 2012 PM2.5 NAAQS 
have been detailed in the section addressing section 110(a)(2)(C). EPA 
further notes that the proposed actions in that section related to PSD 
are consistent with the proposed actions related to PSD for section 
110(a)(2)(D)(i)(II), and they are reiterated below.
    EPA has previously approved or is proposing in today's action to 
approve revisions to Wisconsin's SIP that meet certain requirements 
required by the Phase 2 Rule and the 2008 NSR Rule. These revisions 
included provisions that: Explicitly identify NOX as a 
precursor to ozone, explicitly identify SO2 and 
NOX as precursors to PM2.5, and regulate 
condensable PM2.5 and PM10 in applicability 
determinations and in establishing emissions limits. EPA is also 
proposing in today's action to approve revisions to Wisconsin's SIP 
that incorporate the PM2.5 increments and the associated 
implementation regulations including the major source baseline date, 
trigger date, and level of significance for PM2.5 per the 
2010 NSR Rule. EPA is proposing that Wisconsin's SIP contains 
provisions that adequately address the 1997 PM2.5, 1997 
ozone, 2006 PM2.5, 2008 lead, 2008 ozone, 2010 
NO2, 2010 SO2, and 2012 PM2.5 NAAQS.
    States also have an obligation to ensure that sources located in 
nonattainment areas do not interfere with a neighboring state's PSD 
program. One way that this requirement can be satisfied is through an 
NNSR program consistent with the CAA that addresses any pollutants for 
which there is a designated nonattainment area within the state.
    Wisconsin's EPA-approved NNSR regulations found in Part 2 of the 
SIP, specifically in chapter NR 408 of the Wisconsin Administrative 
Code, are consistent with 40 CFR 51.165, or 40

[[Page 67266]]

CFR part 51, appendix S. Therefore, EPA proposes that Wisconsin has met 
all of the applicable PSD requirements for the 1997 PM2.5, 
1997 ozone, 2006 PM2.5, 2008 lead, 2008 ozone, 2010 
NO2, 2010 SO2, and 2012 PM2.5 NAAQS 
for transport prong 3 related to section 110(a)(2)(D)(i)(II).
3. Section 110(a)(2)(J)--Consultation With Government Officials; Public 
Notifications; PSD; Visibility Protection
    States must meet applicable requirements of section 110(a)(2)(C) 
related to PSD. WDNR's PSD program in the context of infrastructure 
SIPs has already been discussed in the paragraphs addressing section 
110(a)(2)(C) and 110(a)(2)(D)(i)(II), and EPA notes that the proposed 
actions for those sections are consistent with the proposed actions for 
this portion of section 110(a)(2)(J). Therefore, EPA proposes that 
Wisconsin has met all of the infrastructure SIP requirements for PSD 
associated with section 110(a)(2)(J) for the 1997 PM2.5, 
1997 ozone, 2006 PM2.5, 2008 lead, 2008 ozone, 2010 
NO2, 2010 SO2, and 2012 PM2.5 NAAQS.

III. What action is EPA taking?

    EPA is proposing to approve revisions to Wisconsin's SIP that 
implement the PM2.5 increment requirements and also 
incorporates NOX as an ozone precursor. These revisions were 
made to meet EPA's requirements for Wisconsin's PSD and NSR program and 
are consistent with Federal regulations. Specifically, EPA is proposing 
to approve the following:

(i) NR 404.05(2)(intro) and (am)
(ii) NR 404.05(3)(intro) and (am)
(iii) NR 404.05(4)(intro) and (am)
(iv) NR 405.02(3) and (21)(a)
(v) NR 405.02(21m)(a) and (c)
(vi) NR 405.02(22)(b)
(vii) NR 405.02(22m)(a)1. and 3., and (b)1.
(viii) NR 405.02(27)(a)6.
(ix) NR 405.07(8)(a)3m and 3m(Note)
(x) NR 405.07(8)(a)5.(Note)

    The revisions pertaining to PM2.5 increment will fully 
address the requirements of the PM2.5 PSD Increments, SILs, 
and SMC Rule and the deficiencies identified in EPA's August 11, 2014, 
Finding of Failure to Submit. The revisions pertaining to 
NOX as a precursor to ozone will, in conjunction with EPA's 
October 6, 2015 approval, address all of the PSD requirements of the 
``Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality 
Standard--Phase 2''.
    EPA is also proposing to approve the PSD related infrastructure 
requirements found in CAA sections 110(a)(2)(C), (D)(i)(II), and (J) 
for Wisconsin's 1997 PM2.5, 1997 ozone, 2006 
PM2.5, 2008 lead, 2008 ozone, 2010 NO2, 2010 
SO2, and 2012 PM2.5 NAAQS submittals.

IV. Incorporation by Reference

    In this rule, EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by 
reference the WDNR rules regarding revisions to the PSD and NSR 
programs discussed in section I of this preamble. EPA has made, and 
will continue to make, these documents generally available through 
www.regulations.gov, and/or at the National Archives and Records 
Administration (NARA), and/or at the EPA Region 5 Office (please 
contact the person identified in the FOR FURTHER INFORMATION CONTACT 
section of this preamble for more information). For information on the 
availability of this material at NARA, go to: www.archives.gov/federal-register/cfr/ibr-locations.html.

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 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 (Public Law 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).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Sulfur 
oxides.

    Dated: September 21, 2016.
Robert A. Kaplan,
Acting Regional Administrator, Region 5.
[FR Doc. 2016-23689 Filed 9-29-16; 8:45 am]
 BILLING CODE 6560-50-P


