[Federal Register Volume 87, Number 100 (Tuesday, May 24, 2022)]
[Proposed Rules]
[Pages 31462-31470]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-10819]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2018-0689; FRL-9654-01-R5]


Air Plan Approval; Minnesota; Approval of Infrastructure SIP 
Requirements for the 2015 Ozone NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve elements of a State Implementation Plan (SIP) submission from 
Minnesota regarding the infrastructure requirements of section 110 of 
the Clean Air Act (CAA) for the 2015 ozone 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 June 23, 2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2018-0689 at https://www.regulations.gov, or via email to 
[email protected]. For comments submitted at Regulations.gov, follow 
the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from

[[Page 31463]]

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. 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 https://www2.epa.gov/docketgs/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Olivia Davidson, Physical Scientist, 
Attainment Planning and Maintenance Section, Air Programs Branch (AR-
18J), Environmental Protection Agency, Region 5, 77 West Jackson 
Boulevard, Chicago, Illinois 60604, (312) 886-0266, 
[email protected]. The EPA Region 5 office is open from 8:30 a.m. 
to 4:30 p.m., Monday through Friday, excluding Federal holidays and 
facility closures due to COVID-19.

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

I. What is the background of this SIP submission?
II. What is EPA's analysis of this SIP submission?
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews

I. What is the background of this SIP submission?

    In this rulemaking, EPA is proposing to approve most elements of an 
October 1, 2018, submission from the Minnesota Pollution Control Agency 
(MPCA) intended to address all applicable infrastructure requirements 
for the 2015 ozone NAAQS. EPA will take action in a separate future 
rulemaking on the portion of the submission pertaining to the 
interstate transport \1\ and visibility interference requirements of 
section 110(a)(2)(D)(i)(I) and (II) with respect to the 2015 ozone 
NAAQS.
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    \1\ EPA proposed disapproval of Minnesota's SIP revision 
submitted October 1, 2018 to address section 110(a)(2)(D)(i)(I) on 
February 22, 2022 (87 FR 9398).
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    Whenever EPA promulgates a new or revised NAAQS, section 110(a)(1) 
requires states to make SIP submissions to provide for the 
implementation, maintenance, and enforcement of the NAAQS. This type of 
SIP submission is commonly referred to as an ``infrastructure SIP.'' 
These submissions must meet the various requirements of section 
110(a)(2), as applicable. Due to ambiguity in some of the language of 
section 110(a)(2), EPA believes that it is appropriate to interpret 
these provisions in the specific context of acting on infrastructure 
SIP submissions. EPA has previously provided comprehensive guidance on 
the application of these provisions through our September 13, 2013 
Infrastructure SIP Guidance and through regional actions on 
infrastructure submissions (EPA's 2013 Guidance).\2\ Unless otherwise 
noted below, we are following that existing approach in acting on this 
submission. In addition, in the context of acting on such 
infrastructure submissions, EPA evaluates the submitting state's SIP 
for compliance with statutory and regulatory requirements, not for the 
state's implementation of its SIP.\3\ EPA has other authority to 
address any issues concerning a state's implementation of the rules, 
regulations, consent orders, etc. that comprise its SIP.
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    \2\ EPA explains and elaborates on these ambiguities and its 
approach to address them in our September 13, 2013, Infrastructure 
SIP Guidance (available at https://www3.epa.gov/airquality/urbanair/sipstatus/docs/Guidance_on_Infrastructure_SIP_Elements_Multipollutant_FINAL_Sept_2013.pdf), as well as in numerous agency actions, including EPA's prior 
action on Minnesota's infrastructure SIP to address the 2008 ozone, 
2010 nitrogen dioxide (NO2), 2010 sulfur dioxide 
(SO2), and 2012 fine particulate matter 
(PM2.5) NAAQS (80 FR 63436 (October 20, 2015)).
    \3\ See Montana Environmental Information Center v. EPA, 902 
F.3d 971 (9th Cir. 2018).
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II. What is EPA's analysis of this SIP submission?

    Pursuant to section 110(a), states must provide reasonable notice 
and opportunity for public hearing for all infrastructure SIP 
submissions. On July 9, 2018, MPCA opened a 30-day comment period and 
provided the opportunity for public hearing. No comments were received.
    Minnesota provided a detailed synopsis of how various components of 
its SIP meet each of the applicable requirements in section 110(a)(2) 
for the 2015 ozone NAAQS, as applicable. The following review evaluates 
the state's submission.

A. Section 110(a)(2)(A)--Emission Limits and Other Control Measures

    This section requires SIPs to include enforceable emission limits 
and other control measures, means or techniques, schedules for 
compliance, and other related matters. EPA has long interpreted 
emission limits and control measures for attaining the standards as 
being due when nonattainment planning requirements are due.\4\ In the 
context of an infrastructure SIP, EPA is not evaluating the existing 
SIP provisions for this purpose. Instead, EPA is only evaluating 
whether the state's SIP has basic structural provisions for the 
implementation of the NAAQS.
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    \4\ See, e.g., EPA's final rule on ``National Ambient Air 
Quality Standards for Lead.'' 73 FR 66964 at 67034.
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    Minnesota Statute (Minn. Stat.) 116.07 gives MPCA the authority to 
``adopt, amend and rescind rules and standards having the force of law 
relating to any purpose . . . for the prevention, abatement, or control 
of air pollution.'' Also from Minn. Stat. 116.07, MPCA has the 
authority to ``issue, continue in effect or deny permits, under such 
conditions as it may prescribe for the prevention of pollution, for the 
emission of air contaminants,'' and for other purposes.
    EPA's 2013 Guidance states that to satisfy section 110(a)(2)(A) 
requirements, ``an air agency's submission should identify existing 
EPA-approved SIP provisions or new SIP provisions that the air agency 
has adopted and submitted for EPA approval that limit emissions of 
pollutants relevant to the subject NAAQS, including precursors of the 
relevant NAAQS pollutant where applicable.'' EPA's 2013 Guidance at 18. 
Minn. Stat. chapter 116 gives MPCA the authority to develop and 
implement rules, including controls and emission limits to maintain new 
standards. While Minnesota does not have any nonattainment or 
maintenance areas for 2015 ozone NAAQS, MPCA identified existing 
controls and emission limits in Minnesota Rules (Minn. R.) that support 
compliance with and attainment of the 2015 ozone NAAQS. These 
regulations include controls and emission limits for volatile organic 
compounds (VOC) and nitrogen oxides (NOX), which are 
precursors to ozone. NOX emissions are limited by Minn. R. 
7011.0500 to 7011.0553 as well as 7011.1700 to 7011.1730. VOC emissions 
are limited by the National Emission Standards for Hazardous Air 
Pollutants, which are incorporated by reference into

[[Page 31464]]

Minnesota's state rules at Minn. R. 7011.7000.
    In this rulemaking, EPA is not proposing to incorporate into 
Minnesota's SIP any new provisions in Minnesota's state rules that have 
not been previously approved by EPA. EPA is also not proposing to 
approve or disapprove any existing state provisions or rules related to 
start-up, shutdown or malfunction or director's discretion in the 
context of section 110(a)(2)(A). EPA proposes that Minnesota has met 
the infrastructure SIP requirements of section 110(a)(2)(A) with 
respect to the 2015 ozone NAAQS.

B. Section 110(a)(2)(B)--Ambient Air Quality Monitoring/Data System

    This section requires SIPs to provide for establishing and 
operating ambient air quality monitors, collecting and analyzing 
ambient air quality data, and, upon request, to make these data 
available to EPA. EPA's 2013 Guidance states that submission of annual 
monitoring network plans consistent with EPA's ambient air monitoring 
regulations at 40 CFR 58.10 is one way of satisfying requirements to 
provide EPA information regarding air quality monitoring activities. 
EPA's review of a state's annual monitoring plan includes EPA's 
determination that the state: (i) Monitors air quality at appropriate 
locations throughout the state using EPA-approved Federal Reference 
Methods or Federal Equivalent Method monitors; (ii) submits data to 
EPA's Air Quality System in a timely manner; and (iii) provides EPA 
Regional Offices with prior notification of any planned changes to 
monitoring sites or the network plan.
    In accordance with 40 CFR part 53 and 40 CFR part 58, MPCA 
continues to operate an air monitoring network that is used to 
determine compliance with the NAAQS. MPCA`s submittal references its 
2019 Annual Air Monitoring Network Plan, approved by EPA on September 
18, 2018, which included a new appendix D describing Minnesota's 
Photochemical Assessment Monitoring Station Network Implementation Plan 
in order to comply with the new 2015 ozone NAAQS. Additionally, EPA 
approved MPCA's 2020 and 2021 Network Plans on August 23, 2019, and 
September 15, 2020, respectively. EPA proposes that Minnesota has met 
the infrastructure SIP requirements of section 110(a)(2)(B) with 
respect to the 2015 ozone NAAQS.

C. Section 110(a)(2)(C)--Program for Enforcement of Control Measures; 
Minor NSR; PSD

    This section requires SIPs to set forth a program providing for 
enforcement of all SIP measures, and the regulation of construction of 
new and modified stationary sources to meet New Source Review (NSR) 
requirements under Prevention of Significant Deterioration (PSD) and 
Nonattainment NSR (NNSR) programs. Part C of the CAA (sections 160-
169B) addresses PSD, while part D of the CAA (sections 171-193) 
addresses NNSR requirements. EPA's 2013 Guidance states that the NNSR 
requirements of section 110(a)(2)(C) are generally outside the scope of 
infrastructure SIPs; however, a state must provide for regulation of 
minor sources and minor modifications (minor NSR).
1. Program for Enforcement of Emission Limitations and Control Measures
    A state's infrastructure SIP submission should identify the 
statutes, regulations, or other provisions in the SIP that provide for 
enforcement of emission limits and control measures.
    Minn. Stat. 116.07 gives MPCA the authority to enforce any 
provisions of the chapter relating to air contamination. These 
provisions include entering into orders, schedules of compliance, 
stipulation agreements, requiring owners or operators of emissions 
facilities to install and operate monitoring equipment, and conducting 
investigations. Minn. Stat. 116.072 authorizes MPCA to issue orders and 
assess administrative penalties to correct violations of the agency's 
rules, statutes, and permits, and Minn. Stat. 115.071 outlines the 
remedies that are available to address such violations. Lastly, Minn. 
R. 7009.0030 to 7009.0040 provide for enforcement measures. EPA 
proposes that Minnesota has met the program for enforcement of emission 
limitations and control measures requirements of section 110(a)(2)(C) 
with respect to the 2015 ozone NAAQS.
2. Minor NSR
    An infrastructure SIP submission should identify the existing EPA-
approved SIP provisions that govern the minor source pre-construction 
program that regulates emissions of the relevant NAAQS pollutant.
    EPA first approved Minnesota's minor NSR program on May 2, 1995 (60 
FR 21447). Since then, MPCA and EPA have relied on these existing 
provisions to ensure that new and modified sources not captured by the 
major NSR permitting programs do not interfere with attainment and 
maintenance of the ozone and other NAAQS. EPA proposes that Minnesota 
has met the minor NSR requirements of section 110(a)(2)(C) with respect 
to the 2015 ozone NAAQS.
3. PSD
    The evaluation of each state's submission addressing the PSD 
requirements of section 110(a)(2)(C) covers: (i) PSD provisions that 
explicitly identify NOX as a precursor to ozone in the PSD 
program; (ii) identification of precursors to PM2.5 \5\ and 
the identification of PM2.5 and PM10 \6\ 
condensables in the PSD program; (iii) PM2.5 increments in 
the PSD program; and (iv) greenhouse gas (GHG) permitting and the 
``Tailoring Rule'' in the PSD program.\7\
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    \5\ PM2.5 refers to particles with an aerodynamic 
diameter of less than or equal to 2.5 micrometers, also referred to 
as ``fine'' particles.
    \6\ PM10 refers to particles with an aerodynamic 
diameter of less than or equal to 10 micrometers.
    \7\ In EPA's April 28, 2011, proposed rulemaking for 
infrastructure SIPs for the 1997 ozone and PM2.5 NAAQS, 
we stated that each state's PSD program must meet applicable 
requirements for evaluation of all regulated NSR pollutants in PSD 
permits (76 FR 23757 at 23760). This view was reiterated in EPA's 
August 2, 2012 proposed rulemaking for infrastructure SIPs for the 
2006 PM2.5 NAAQS (77 FR 45992 at 45998). In other words, 
if a state lacks provisions needed to adequately address 
NOX as a precursor to ozone, PM2.5 precursors, 
PM2.5 and PM10 condensables, PM2.5 
increments, or the Federal GHG permitting thresholds, the provisions 
of section 110(a)(2)(C) requiring a suitable PSD permitting program 
must be considered not to be met irrespective of the NAAQS that 
triggered the requirement to submit an infrastructure SIP, including 
the 2015 ozone NAAQS.
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    Some PSD requirements under section 110(a)(2)(C) overlap with 
elements of section 110(a)(2)(D)(i), section 110(a)(2)(E), and section 
110(a)(2)(J). These links are discussed in the appropriate areas below.
a. 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 (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 
(see 70 FR 71612 at 71679, 71699-71704). This

[[Page 31465]]

requirement was codified at 40 CFR 51.166.\8\
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    \8\ Similar changes were codified in 40 CFR 52.21.
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    The Phase 2 Rule required that states submit SIP revisions 
incorporating the requirements of the rule, including the provisions 
specific to NOX as a precursor to ozone, by June 15, 2007 
(see 70 FR 71612 at 71683).
    On September 26, 2017 (82 FR 44734), EPA approved into the 
Minnesota SIP Minn. R. 7007.3000, which incorporates by reference ``as 
amended'' the Federal PSD rules at 40 CFR 52.21. These Federal PSD 
rules fully satisfy the requirements of section 110(a)(2)(C) regarding 
NOX as a precursor to ozone. EPA therefore proposes that 
Minnesota has met this set of infrastructure SIP requirements of 
section 110(a)(2)(C) with respect to the 2015 ozone NAAQS.
b. Identification of Precursors to PM2.5 and the 
Identification of PM2.5 and PM10 Condensables in 
the PSD Program
    On May 16, 2008 (73 FR 28321), EPA issued the Final Rule on the 
``Implementation of the New Source Review (NSR) Program for Particulate 
Matter Less than 2.5 Micrometers (PM2.5)'' (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 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 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).\9\
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    \9\ EPA notes that in Natural Resources Defense Council v. EPA, 
706 F.3d 428 (D.C. Cir. 2013), the U.S. Court of Appeals for the 
D.C. Circuit 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 NSR 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 Minnesota's infrastructure SIP as to elements (C), 
(D)(i)(II), or (J) with respect to the PSD requirements promulgated 
by the 2008 NSR Rule does not conflict with the court's opinion.
    The court's decision with respect to the nonattainment NSR 
requirements promulgated by the 2008 NSR 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 subpart 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 due to 
EPA by May 16, 2011 (see 73 FR 28321 at 28341).
    On September 26, 2017 (82 FR 44734), EPA approved into the 
Minnesota SIP Minn. R. 7007.3000, which incorporates by reference ``as 
amended'' the Federal PSD rules at 40 CFR 52.21. These Federal PSD 
rules fully satisfy the requirements of section 110(a)(2)(C) regarding 
identification of precursors to PM2.5 and the identification 
of PM2.5 and PM10 condensables. EPA therefore 
proposes that Minnesota has met this set of infrastructure SIP 
requirements of section 110(a)(2)(C) with respect to the 2015 ozone 
NAAQS.
c. PM2.5 Increments in the PSD Program
    On October 20, 2010 (75 FR 64864), EPA issued the final rule on 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)'' 
(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 max
                                                    mean
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Class I.......................................            1            2
Class II......................................            4            9
Class III.....................................            8           18
------------------------------------------------------------------------

    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 (b)(14)(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).
    On September 26, 2017 (82 FR 44734), EPA approved into the 
Minnesota SIP Minn. R. 7007.3000, which incorporates by reference ``as 
amended'' the Federal PSD rules at 40 CFR 52.21. These Federal PSD 
rules fully satisfy the requirements of section 110(a)(2)(C) regarding 
PM2.5 increments. EPA therefore proposes that Minnesota has 
met this set of infrastructure SIP requirements of section 110(a)(2)(C) 
with respect to the 2015 ozone NAAQS.

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d. GHG Permitting and the ``Tailoring Rule'' in the PSD Program
    With respect to the requirements of section 110(a)(2)(C) as well as 
section 110(a)(2)(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 that the air agency has a complete PSD permitting program 
correctly addressing all regulated NSR pollutants. Minnesota 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, 573 U.S. 302 (2014). The Supreme Court said that 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 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 accordance with the Court's decision, on April 10, 2015, the 
U.S. Court of Appeals for the District of Columbia Circuit (the D.C. 
Circuit) issued an amended judgment vacating the regulations that 
implemented Step 2 of EPA's PSD and title V Greenhouse Gas Tailoring 
Rule, but not the regulations that implement Step 1 of that rule. Step 
1 of the Tailoring Rule covers sources that are required to obtain a 
PSD permit based on emissions of pollutants other than GHGs. Step 2 
applied to sources that emitted only GHGs above the thresholds 
triggering the requirement to obtain a PSD permit. The amended judgment 
preserves, without the need for additional rulemaking by EPA, the 
application of the BACT requirement to GHG emissions from Step 1 or 
``anyway'' sources. With respect to Step 2 sources, the D.C. Circuit's 
amended judgment vacated the regulations at issue in the litigation, 
including 40 CFR 51.166(b)(48)(v), ``to the extent they require a 
stationary source to obtain a PSD permit if greenhouse gases are the 
only pollutant (i) that the source emits or has the potential to emit 
above the applicable major source thresholds, or (ii) for which there 
is a significant emission increase from a modification . . . .'' 
Coalition for Responsible Regulation, Inc. v. Environmental Protection 
Agency, Nos. 09-1322, 10-073, 10-1092, and 10-1167, Amended Judgment 
(D.C. Cir. April 10, 2015).
    EPA is planning to take additional steps to revise Federal PSD 
rules in light of the Supreme Court's opinion and subsequent D.C. 
Circuit's ruling. Some states have begun to revise their existing SIP-
approved PSD programs in light of these court decisions, and some 
states may prefer not to initiate this process until they have more 
information about the planned revisions to EPA's PSD regulations. EPA 
is not expecting states to have revised their PSD programs in 
anticipation of EPA's planned actions to revise its PSD program rules 
in response to the court decisions. For purposes of infrastructure SIP 
submissions, EPA is only evaluating such submissions to assure that the 
state's program addresses GHGs consistent with both court decisions.
    EPA is proposing that Minnesota's SIP is sufficient to satisfy CAA 
sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), and 110(a)(2)(J) with 
respect to GHGs. This is because the PSD permitting program approved by 
EPA into the SIP on September 26, 2017 (82 FR 44734) continues to 
require that PSD permits issued to ``anyway sources'' contain 
limitations on GHG emissions based on the application of BACT.
    EPA proposes that Minnesota has met the infrastructure SIP 
requirements of section 110(a)(2)(C) with respect to the 2015 ozone 
NAAQS.

D. Section 110(a)(2)(D)--Interstate Transport

    Section 110(a)(2)(D) has two components: 110(a)(2)(D)(i) and 
110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) includes four distinct 
components, commonly referred to as ``prongs,'' that must be addressed 
in infrastructure SIP submissions. The first two prongs, which are 
codified in section 110(a)(2)(D)(i)(I), prohibit any source or other 
type of emissions activity in one state from contributing significantly 
to nonattainment of the NAAQS in another state (prong 1) and from 
interfering with maintenance of the NAAQS in another state (prong 2). 
The third and fourth prongs, which are codified in section 
110(a)(2)(D)(i)(II), prohibit emissions activity in one state from 
interfering with measures required to prevent significant deterioration 
of air quality in another state (prong 3) or from interfering with 
measures to protect visibility in another state (prong 4).
    Section 110(a)(2)(D)(i)(I) requires SIPs to include provisions 
prohibiting any source or other type of emissions activity in one state 
from contributing significantly to nonattainment, or interfering with 
maintenance, of the NAAQS in another state. Section 110(a)(2)(D)(i)(II) 
requires SIPs to include provisions prohibiting any source or other 
type of emissions activity in one state from interfering with measures 
required of any other state to prevent significant deterioration of air 
quality, or from interfering with measures required of any other state 
to protect visibility. Section 110(a)(2)(D)(ii) requires each SIP to 
contain adequate provisions requiring compliance with the applicable 
requirements of CAA section 126 and section 115 (relating to interstate 
and international pollution abatement, respectively).
1. Significant Contribution to Nonattainment
    In this rulemaking, EPA is not evaluating section 
110(a)(2)(D)(i)(I) requirements relating to significant contribution to 
nonattainment for the 2015 ozone NAAQS. Instead, EPA will evaluate 
these requirements in a separate rulemaking.
2. Interference With Maintenance
    In this rulemaking, EPA is not evaluating section 
110(a)(2)(D)(i)(I) requirements relating to interference with 
maintenance for the 2015 ozone NAAQS. Instead, EPA will evaluate these 
requirements in a separate rulemaking.
3. Interference With PSD
    EPA notes that Minnesota's satisfaction of the applicable 
infrastructure SIP PSD requirements has been detailed in the discussion 
of section 110(a)(2)(C). EPA further notes that the proposed actions in 
that discussion related to PSD are consistent with the proposed actions 
related to PSD for section 110(a)(2)(D)(i)(II) and are reiterated 
below.
    EPA previously approved revisions to Minnesota's SIP to meet 
certain requirements obligated 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, 
regulate condensable PM2.5 and PM10 in 
applicability determinations, and regulate condensable PM2.5 
and PM10 in applicability determinations for purposes of 
establishing emission limits. EPA also previously approved revisions to 
Minnesota's SIP that incorporate the PM2.5 increments and

[[Page 31467]]

the associated implementation regulations, including the major source 
baseline date, trigger date, and level of significance for 
PM2.5, as required by the 2010 NSR Rule. Therefore, EPA is 
proposing that Minnesota's SIP contains provisions that adequately 
address the infrastructure requirements for the 2015 ozone NAAQS.
    States also have an obligation to ensure that sources located in 
nonattainment areas do not interfere with a neighboring state's PSD 
program. This requirement can be satisfied through an NNSR program 
consistent with the CAA that addresses any pollutants for which there 
is a designated nonattainment area within the state.
    Minnesota's EPA-approved NNSR regulations are contained in Minn. R. 
7007 and are consistent with 40 CFR 51.165 (60 FR 27411, May 24, 1995). 
Therefore, EPA proposes that Minnesota has met all the applicable PSD 
requirements for the 2015 ozone NAAQS.
4. Interference With Visibility Protection
    In this rulemaking, EPA is not evaluating section 
110(a)(2)(D)(i)(II) requirements relating to interference with 
visibility protection for the 2015 ozone NAAQS. Instead, EPA will 
evaluate these requirements in a separate rulemaking.
5. Interstate and International Pollution Abatement
    Section 110(a)(2)(D)(ii) requires each SIP to contain adequate 
provisions requiring compliance with the applicable requirements of 
section 126 and section 115 (relating to interstate and international 
pollution abatement, respectively).
    Section 126(a) requires new or modified sources to notify 
neighboring states of potential impacts from the source. The statute 
does not specify the method by which the source should provide the 
notification. States with SIP-approved PSD programs must have a 
provision requiring such notification by new or modified sources. A 
lack of such a requirement in state rules would be grounds for 
disapproval of this element.
    Minnesota has provisions in its SIP-approved PSD program in Minn. 
R. 7007.3000 requiring new or modified sources to notify neighboring 
states of potential negative air quality impacts and has referenced 
this program as having adequate provisions to meet the requirements of 
CAA section 126(a). Minnesota does not have obligations under any other 
subsection of CAA section 126, nor does it have any pending obligations 
under CAA section 115. Therefore, EPA is proposing that Minnesota has 
met all applicable infrastructure SIP requirements of section 
110(a)(2)(D)(ii) with respect to the 2015 ozone NAAQS.

E. Section 110(a)(2)(E)--Adequate Resources; State Board Requirements

    This section requires each state to provide for adequate personnel, 
funding, and legal authority under state law to carry out its SIP, and 
related issues. Section 110(a)(2)(E)(ii) also requires each state to 
comply with the requirements respecting state boards under section 128.
1. Adequate Resources
    To satisfy the adequate resources requirements of section 
110(a)(2)(E), the state should provide assurances that its air agency 
has adequate resources, personnel, and legal authority to implement the 
relevant NAAQS.
    MPCA's Environmental Performance Partnership Agreement with EPA 
provides MPCA's assurances of resources to carry out certain air 
programs. EPA also notes that Minn. Stat. 116.07 provides the legal 
authority under state law to carry out the SIP. Therefore, EPA proposes 
that Minnesota has met the infrastructure SIP requirements of this 
portion of section 110(a)(2)(E) with respect to the 2015 ozone NAAQS.
2. State Board Requirements
    Section 110(a)(2)(E) also requires each SIP to set forth provisions 
that comply with the state board requirements of section 128 of the 
CAA. Specifically, this section contains two explicit requirements: (i) 
That any board or body which approves permits or enforcement orders 
under this chapter shall have at least a majority of members who 
represent the public interest and do not derive any significant portion 
of their income from persons subject to permits and enforcement orders 
under this chapter, and (ii) that any potential conflicts of interest 
by members of such board or body or the head of an executive agency 
with similar powers be adequately disclosed.
    Minnesota has no board or body which approves permits or 
enforcement orders in relation to the CAA. The administrative powers 
and duties of MPCA, including issuance of permits and enforcement 
orders, are vested in the Commissioner of the MPCA. Therefore, 
Minnesota has no further obligations under section 128(a)(1) of the 
CAA.
    Under section 128(a)(2), the head of the executive agency with the 
power to approve permits or enforcement orders must adequately disclose 
any potential conflicts of interest. In Minnesota, this power is vested 
in the Commissioner of the MPCA. Under Minn. Stat. 10A, matters of 
disclosure and public interest are governed by the Minnesota Campaign 
Finance and Public Disclosure Board (MCFPDB). Minn. Stat. 10A.09 
requires that statements of economic interest be filed with the MCFPDB 
upon the nomination of the Commissioner, and a supplementary statement 
must be submitted every year thereafter. Under Minn. Stat. 10A.07, if 
the Commissioner has a financial interest relating to a matter before 
the agency, he or she must make this interest known in writing. 
Decision-making responsibility on the matter must be assigned by the 
Governor to another employee who does not have a conflict of interest, 
or the Commissioner must abstain from influence over the matter in a 
manner prescribed by the MCFPDB. Minn. R. 7000.0300 further prescribes 
a ``duty of candor'' for the Commissioner.
    On November 2, 2017 (82 FR 50807), EPA approved MPCA's request to 
approve Minn. Stat. 10A.07, Minn. Stat. 10A.09, and Minn. R. 7000.0300 
into Minnesota's SIP, and determined that these rules satisfied all 
requirements under section 128 of the CAA. Therefore, EPA is proposing 
that Minnesota has satisfied the applicable infrastructure SIP 
requirements for this section of 110(a)(2)(E) for the 2015 ozone NAAQS.

F. Section 110(a)(2)(F)--Stationary Source Monitoring System

    Section 110(a)(2)(F) contains several requirements, each of which 
are described below.
    States must establish a system to monitor emissions from stationary 
sources and submit periodic emissions reports. Each plan shall also 
require the installation, maintenance, and replacement of equipment, 
and the implementation of other necessary steps, by owners or operators 
of stationary sources to monitor emissions from such sources. The state 
plan shall also require periodic reports on the nature and amounts of 
emissions and emissions-related data from such sources, and correlation 
of such reports by each state agency with any emission limitations or 
standards established pursuant to this chapter. Lastly, the reports 
shall be available at reasonable times for public inspection.
    Minn. Stat. 116.07 gives MPCA the authority to require owners or 
operators

[[Page 31468]]

of emission facilities to install and operate monitoring equipment, 
while Minn. R. 7007.0800 sets forth the minimum monitoring requirements 
that must be included in stationary source permits. Minn. R. 7017 
contains monitoring and testing requirements, and Minn. R. 7019 
contains emissions reporting requirements for applicable facilities. 
EPA proposes that Minnesota has met the infrastructure SIP requirements 
of section 110(a)(2)(F) with respect to the 2015 ozone NAAQS.

G. Section 110(a)(2)(G)--Emergency Powers

    Section 110(a)(2)(G) requires the SIP to provide for authority 
analogous to that in section 303 of the CAA, and adequate contingency 
plans to implement such authority. EPA's 2013 Guidance states that 
infrastructure SIP submissions should specify authority, vested in an 
appropriate official, to restrain any source from causing or 
contributing to emissions which present an imminent and substantial 
endangerment to public health or welfare, or the environment.
    Minn. Stat. 116.11 provides to MPCA emergency powers, which are 
further discussed in Minn. R. 7000.5000. Specifically, these 
regulations allow the agency to ``direct the immediate discontinuance 
or abatement of the pollution without notice and without a hearing or 
at the request of the agency, the attorney general may bring an action 
in the name of the state in the appropriate district court for a 
temporary restraining order to immediately abate or prevent the 
pollution.'' EPA proposes that Minnesota has met the infrastructure SIP 
requirements of section 110(a)(2)(G) with respect to the 2015 ozone 
NAAQS.

H. Section 110(a)(2)(H)--Future SIP Revisions

    This section requires states to have the authority to revise their 
SIPs in response to changes in the NAAQS, to the availability of 
improved methods for attaining the NAAQS, or to an EPA finding that the 
SIP is substantially inadequate.
    Minn. Stat. 116.07 grants the agency the authority to ``[a]dopt, 
amend, and rescind rules and standards having the force of law relating 
to any purpose . . . for the prevention, abatement, or control of air 
pollution.'' EPA proposes that Minnesota has met the infrastructure SIP 
requirements of section 110(a)(2)(H) with respect to the 2015 ozone 
NAAQS.

I. Section 110(a)(2)(I)--Nonattainment Planning Requirements of Part D

    The CAA requires that each plan or plan revision for an area 
designated as a nonattainment area meet the applicable requirements of 
part D of the CAA. Part D relates to nonattainment areas.
    EPA has determined that section 110(a)(2)(I) is not applicable to 
the infrastructure SIP process. Instead, EPA will take action on part D 
attainment plans through separate processes.

J. Section 110(a)(2)(J)--Consultation With Government Officials; Public 
Notification; PSD; Visibility Protection

    The evaluation of the submission from Minnesota with respect to the 
requirements of section 110(a)(2)(J) are described below.
1. Consultation With Government Officials
    States must provide a process for consultation with local 
governments and Federal Land Managers in carrying out NAAQS 
implementation requirements.
    MPCA is an active member of the Lake Michigan Air Director's 
Consortium (LADCO), which provides technical assessments and a forum 
for discussion regarding air quality issues to member states. Minnesota 
has also demonstrated that it frequently consults and discusses air 
quality issues with pertinent Tribes. In addition to LADCO, MPCA is an 
active participant in the National Association of Clean Air Agencies, 
which has a member total of 185 air agencies, including representatives 
from all EPA regional offices and headquarters, across the United 
States. EPA proposes that Minnesota has satisfied the infrastructure 
SIP requirements of this portion of section 110(a)(2)(J) with respect 
to the 2015 ozone NAAQS.
2. Public Notification
    Section 110(a)(2)(J) also requires states to notify the public if 
NAAQS are exceeded in an area and to enhance public awareness of 
measures that can be taken to prevent exceedances. MPCA's website 
(https://www.pca.state.mn.us/air) features information regarding health 
impacts of air pollution, current air quality and forecasting, and non-
point, vehicle, and traditionally permitted sources. Additionally, MPCA 
developed a free mobile application (Minnesota Air) that contains 
forecasting information. Minnesota's procedural rules are contained in 
Minn. R. Ch. 7000, and include general guidelines, as well as emergency 
and variance procedures. Minn. R. Ch. 7007 lists public notice and 
comment procedures for the issuance of air quality permits, which 
provide the public with an opportunity to comment and/or request public 
hearing regarding proposed SIP revisions. Therefore, EPA proposes that 
Minnesota has met the infrastructure SIP requirements of this portion 
of section 110(a)(2)(J) with respect to the 2015 ozone NAAQS.
3. PSD
    States must meet applicable requirements of section 110(a)(2)(C) 
related to PSD. Minnesota's PSD program in the context of 
infrastructure SIPs has already been discussed above in the paragraphs 
addressing section 110(a)(2)(C) and section 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 Minnesota has met all the 
infrastructure SIP requirements for PSD associated with section 
110(a)(2)(D)(J) for the 2015 ozone NAAQS.
4. Visibility Protection
    States are subject to visibility and regional haze program 
requirements under part C of the CAA (which includes sections 169A and 
169B). However, EPA has determined that the CAA section 110(a)(2)(J) 
provision on visibility is not triggered by a new NAAQS because the 
visibility requirements in part C are not changed by a new NAAQS.

K. Section 110(a)(2)(K)--Air Quality Modeling/Data

    SIPs must provide for performance of air quality modeling to 
predict the effects on air quality from emissions of any NAAQS 
pollutant and the submission of such data to EPA upon request.
    MPCA has the authority under Minn. R. Ch. 7007.0500 to require 
applicable major sources to perform modelling to show that emissions do 
not cause or contribute to a violation of any NAAQS. Such information 
is mandatory for applicants subject to PSD requirements (Minn. R. Ch. 
7007.3000) and/or NNSR requirements (Minn. R. Ch. 7007.4000 through 
7007.4030). MPCA also maintains staff that conduct permit-related (and 
other) modeling, to support facilities and ensure modeling accuracy. 
EPA proposes that Minnesota has met the infrastructure SIP requirements 
of section 110(a)(2)(K) with respect to the 2015 ozone NAAQS.

[[Page 31469]]

L. Section 110(a)(2)(L)--Permitting Fees

    This section requires SIPs to mandate each major stationary source 
to pay permitting fees to cover the cost of reviewing, approving, 
implementing, and enforcing a permit.
    MPCA implements and operates the title V permit program, which EPA 
approved on December 4, 2001 (66 FR 62967). Minn. R. 7002.0005 through 
7002.0085 contain the provisions, requirements, and structures 
associated with the costs for reviewing, approving, implementing, and 
enforcing various types of permits. EPA proposes that Minnesota has met 
the infrastructure SIP requirements of section 110(a)(2)(L) with 
respect to the 2015 ozone NAAQS.

M. Section 110(a)(2)(M)--Consultation/Participation by Affected Local 
Entities

    States must consult with and allow participation from local 
political subdivisions affected by the SIP.
    Minn. Stat. 116.05 authorizes cooperation and agreement between 
MPCA and other State and local governments, with whom Minnesota 
regularly consults. The Minnesota Administrative Procedures Act 
provides general notice and comment procedures that govern rulemaking 
for all state agencies, which MPCA follows during SIP development. 
Therefore, EPA proposes that Minnesota has met the infrastructure SIP 
requirements of section 110(a)(2)(M) with respect to the 2015 ozone 
NAAQS.

III. What action is EPA taking?

    EPA is proposing to approve most elements of a submission from MPCA 
certifying that its current SIP is sufficient to meet the required 
infrastructure elements under sections 110(a)(1) and (2) for the 2015 
ozone NAAQS. EPA's proposed actions for the State's satisfaction of 
infrastructure SIP requirements pursuant to section 110(a)(2) and NAAQS 
are contained in the table below.

------------------------------------------------------------------------
                         Element                            2015 Ozone
------------------------------------------------------------------------
(A)--Emission limits and other control measures.........               A
(B)--Ambient air quality monitoring/data system.........               A
(C)1--Program for enforcement of control measures.......               A
(C)2--Minor NSR.........................................               A
(C)3--PSD...............................................               A
(D)1--I Prong 1: Interstate transport--significant                    NA
 contribution to nonattainment..........................
(D)2--I Prong 2: Interstate transport--interference with              NA
 maintenance............................................
(D)3--II Prong 3: Interstate transport--interference                   A
 with PSD...............................................
(D)4--II Prong 4: Interstate transport--interference                  NA
 with visibility protection.............................
(D)5--Interstate and international pollution abatement..               A
(E)1--Adequate resources................................               A
(E)2--State board requirements..........................               A
(F)--Stationary source monitoring system................               A
(G)--Emergency powers...................................               A
(H)--Future SIP revisions...............................               A
(I)--Nonattainment planning requirements of part D......               *
(J)1--Consultation with government officials............               A
(J)2--Public notification...............................               A
(J)3--PSD...............................................               A
(J)4--Visibility protection.............................               *
(K)--Air quality modeling/data..........................               A
(L)--Permitting fees....................................               A
(M)--Consultation/participation by affected local                      A
 entities...............................................
------------------------------------------------------------------------

    In the above table, the key is as follows:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
A...............................  Approve.
NA..............................  No Action/Separate Rulemaking.
D...............................  Disapprove.
*...............................  Not germane to infrastructure SIPs.
------------------------------------------------------------------------

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the 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, 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

[[Page 31470]]

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, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: May 16, 2022.
Debra Shore,
Regional Administrator, Region 5.
[FR Doc. 2022-10819 Filed 5-23-22; 8:45 am]
BILLING CODE 6560-50-P


