Daily Rules, Proposed Rules, and Notices of the Federal Government
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
This rulemaking addresses submissions from each State (and appropriate State agency) in EPA Region 5: Illinois Environmental Protection Agency (Illinois EPA); Indiana Department of Environmental Management (IDEM); Michigan Department of Environmental Quality (MDEQ); Minnesota Pollution Control Agency (MPCA); Ohio Environmental Protection Agency (Ohio EPA); and Wisconsin Department of Natural Resources Bureau of Air Management (WDNR). Each Region 5 State made SIP submissions on the following dates: Illinois—August 9, 2011, and supplemented on August 25, 2011, and June 27, 2012; Indiana—October 20, 2009, and supplemented on June 25, 2012, and July 12, 2012; Michigan—August 15, 2011, and supplemented on July 9, 2012; Minnesota—May 23, 2011, and supplemented on June 27, 2012; Ohio—September 4, 2009, and supplemented on June 3, 2011, and July 5, 2012; and, Wisconsin—January 24, 2011, and supplemented on March 28, 2011, and June 29, 2012.
Indiana also made a SIP submission intended to address various EPA requirements for its NSR and PSD programs. IDEM submitted revisions on July 12, 2012, for incorporation into its NSR and PSD program, and also requested that EPA approve these revisions as satisfying any applicable infrastructure SIP requirements for the 2006 PM
Under sections 110(a)(1) and (2) of the CAA, and implementing EPA policy, the States are required to submit infrastructure SIPs to ensure that their SIPs provide for implementation, maintenance, and enforcement of the NAAQS, including the 2006 PM
EPA highlighted this statutory requirement in an October 2, 2007, guidance document entitled “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and PM
As originally detailed in the proposed rulemaking, the applicable infrastructure SIP requirements are contained in section 110(a)(1) and (2) of the CAA. EPA is finalizing action of each Region 5 State's satisfaction of the applicable requirements of section 110(a)(2)(A) through section 110(a)(2)(M), except for the elements detailed in the following paragraphs.
This rulemaking will not cover four substantive areas that are not integral to acting on a State's infrastructure SIP submission: (i) Existing provisions related to excess emissions during periods of start-up, shutdown, or malfunction at sources, that may be contrary to the CAA and EPA's policies addressing such excess emissions (“SSM”); (ii) existing provisions related to “director's variance” or “director's discretion” that purport to permit revisions to SIP approved emissions limits with limited public process or without requiring further approval by EPA, that may be contrary to the CAA (“director's discretion”); (iii) existing provisions for minor source NSR programs that may be inconsistent with the requirements of the CAA and EPA's regulations that pertain to such programs (“minor source NSR”); and, (iv) existing provisions for PSD programs that may be inconsistent with current requirements of EPA's “Final NSR Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (“NSR Reform”). Instead, EPA has indicated that it has other authority to address any such existing SIP defects in other rulemakings, as appropriate. A detailed rationale for why these four substantive areas are not part of the scope of infrastructure SIP rulemakings can be found in EPA's July 13, 2011, final rule entitled, “Infrastructure SIP Requirements for the 1997 8-hour Ozone and PM
In addition to the four substantive areas above, EPA is not acting in this action on portions of section 110(a)(2)(D)(i)(I)—Interstate transport; section 110(a)(2)(E)(ii)—Adequate resources; and section 110(a)(2)(J)—Consultation with government officials,
With respect to the visibility protection requirements of section 110(a)(2)(J), EPA notes that these requirements are different from those in section 110(a)(2)(D)(i)(II) in that the visibility protection requirements of section 110(a)(2)(J) are not “triggered” by the promulgation of a new or updated NAAQS. In other words, the visibility protection requirements of section 110(a)(2)(J) are not germane to infrastructure SIPs for the 2006 PM
Furthermore, as a result of the current status of the Cross-State Air Pollution Rule (CSAPR),
We are also not finalizing our action on narrow portions of Michigan's infrastructure SIP for section 110(a)(2)(C), section 110(a)(2)(D)(i)(II), and section 110(a)(2)(J), specifically with respect to the applicable requirements obligated by EPA's final rule for the “Implementation of the New Source Review (NSR) Program for Particulate Matter Less than 2.5 Micrometers (PM
Lastly, as a result of a comment received during the comment period, EPA is not finalizing action on a narrow portion of Indiana's infrastructure SIP for section 110(a)(2)(C), section 110(a)(2)(D)(i)(II), and section 110(a)(2)(J), specifically for the source impact analysis requirements of the State's PSD program as it relates to the 2006 PM
The public comment period for EPA's proposed action to approve most elements and disapprove narrow portions of other elements of submissions from the Region 5 States closed on September 4, 2012. EPA received five comment letters, and a synopsis of the significant individual comments contained in these letters, as well as EPA's response to each comment, is discussed below.
In today's rulemaking, EPA is not finalizing our proposed approval of the visibility protection requirements of section 110(a)(2)(D)(i)(II) for Indiana, Ohio, Minnesota, and Wisconsin. EPA is also not taking any action on the visibility protection requirements of section 110(a)(2)(D)(i)(II) for Michigan. EPA will take action on these States' SIPs in a separate rulemaking. However, EPA is finalizing approval of Illinois' satisfaction of the visibility protection requirements of section 110(a)(2)(D)(ii) in this rulemaking.
The commenter's concerns relate to the timing of Agency action on collateral, yet related, SIP submissions. These concerns highlight an important overarching question that the EPA has to confront when assessing the various infrastructure SIP submittals addressed in the proposed rule: How to proceed when the timing and sequencing of multiple related SIP submissions impact the ability of the State and the Agency to address certain substantive issues in
It is appropriate for EPA to take into consideration the timing and sequence of related SIP submissions as part of determining what it is reasonable to expect a State to have addressed in an infrastructure SIP submission for a NAAQS at the time when the EPA acts on such submission. EPA has historically interpreted section 110(a)(2)(C), section 110(a)(2)(D)(i)(II), and section 110(a)(2)(J) to require us to assess a State's infrastructure SIP submission with respect to the then-applicable and Federally enforceable PSD regulations required to be included in a State's SIP at the time EPA takes action on the SIP.
However, EPA does not consider it reasonable to interpret section 110(a)(2)(C), section 110(D)(i)(II), and section 110(a)(2)(J) to require us to propose to disapprove a State's infrastructure SIP submissions because the State had not yet, at the time of proposal, made a submission that was not yet due for the 2010 PM
EPA acknowledges that it is important that these additional PSD program revisions be evaluated and approved into the State's SIP in accordance with the CAA, and EPA intends to address the PM
Wisconsin notes that our proposed rulemaking states that “the infrastructure SIP requirements are designed to ensure that the structural components of each State's air quality management program are adequate to meet the State's responsibilities under the CAA.” Wisconsin also notes that under section 110(a)(2)(C), states are required to “include a program” for the regulation of the modification and construction of any stationary source to assure that NAAQS are achieved, including a permit program as required under parts C and D of CAA section 110(A)(2). Wisconsin argues that its infrastructure SIP submissions have clearly stated that WDNR has the resources and authorities necessary to implement and satisfy the requirements of section 110(a)(1) and (2) of the CAA for PM
Citing the definition of “regulated NSR air contaminant” in Wisconsin Administrative Code NR 405.02(25i) as including “any contaminant for which a national ambient air quality standard has been promulgated and any
WDNR also notes that it has been accounting for condensable particulate matter in its PSD permitting program since the beginning of the program; particulate matter and particulate matter emissions have been defined to include condensables since 1989 and have been a part of the approved SIP since 1993. Wisconsin asserts that EPA must approve these elements of Wisconsin's infrastructure SIP, because WDNR has met the applicable requirements.
For the reasons discussed in the proposed rulemaking, EPA is taking final action to approve most elements and disapprove narrow portions of other elements of submissions from the EPA Region 5 States certifying that the current SIPs are sufficient to meet the required infrastructure elements under sections 110(a)(1) and (2) for the 2006 PM
Due to the current status of CSAPR, EPA is not finalizing our previously proposed approval for the interstate transport requirements addressing visibility protection of section 110(a)(2)(D)(i)(II) for Indiana, Ohio, Minnesota, and Wisconsin for the 2006 PM
As a result of a comment letter submitted by the State of Michigan, EPA is not finalizing our previously proposed disapproval of narrow portions of section 110(a)(2)(C), section 110(a)(2)(D)(i)(II), and section 110(a)(2)(J) for the State. Instead, EPA will address Michigan's satisfaction of the applicable PSD requirements obligated by the 2008 NSR Rule and the Phase 2 Rule in a separate rulemaking. Lastly, as a result of a comment received during the public comment period, EPA is not finalizing its proposed approval of the submission from Indiana with respect to one narrow issue that relates to section 110(a)(2)(C), (D)(i)(II), and (J). Specifically, EPA will address the PSD source impact analysis requirements for the 2006 PM
EPA's final actions for each Region 5 State's satisfaction of infrastructure SIP requirements, by element of section 110(a)(2) are contained in the table below.
EPA is also finalizing the disapproval of the infrastructure SIP submissions from Illinois and Minnesota with respect to the requirements of section 110(a)(2)(D)(ii) related to interstate pollution abatement. Specifically, this section requires states with PSD programs have provisions requiring a new or modified source to notify neighboring states of the potential impacts from the source, consistent with the requirements of section 126(a).
However, Illinois and Minnesota have no further obligations as a result of this disapproval because Federally promulgated rules, promulgated at 40 CFR 52.21 are in effect in each of these States. EPA has delegated the authority to Illinois and Minnesota to administer these rules, which include provisions related to PSD and interstate pollution abatement. This final disapproval for Illinois and Minnesota for these infrastructure SIP requirements will not result in sanctions under section 179(a), nor will it obligate EPA to promulgate a FIP within two years of final action if the States do not submit revisions to their PSD SIPs addressing these deficiencies. Instead, Illinois and Minnesota are already subject to the Federally promulgated PSD regulations, and both States administer these regulations via EPA's delegated authority.
The grounds for EPA's final disapproval of portions of the infrastructure SIP submittals from Ohio and Wisconsin are very narrow, and pertain only to these specific deficiencies in the States' SIPs described in the relevant sections of the proposed rulemaking, as well as in the responses to comments section of today's rulemaking.
As previously discussed, EPA believes that Ohio has been actively preparing necessary revisions to its PSD program, consistent with the requirements of the Phase 2 Rule and the 2008 NSR Rule. We will work with the State to rectify these issues promptly. In addition, EPA will work with WDNR to account for the explicit identification of precursors to PM
Under section 179(a) of the CAA, final disapproval of a submission that addresses a requirement of a Part D Plan (section 171-section 193 of the CAA), or is required in response to a finding of substantial inadequacy as described in section 110(k)(5) starts a sanction clock. The provisions in the submissions we are disapproving were not submitted by Ohio or Wisconsin to meet either of those requirements. Therefore, no sanctions under section 179 will be triggered.
The full or partial disapproval of a SIP revision triggers the requirement under section 110(c) that EPA promulgate a FIP no later than two years from the date of the disapproval unless the State corrects the deficiency, and the Administrator approves the plan or plan revision before the Administrator
EPA will actively work with Wisconsin to incorporate changes to its PSD program that explicitly identify PM
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• 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
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on Tribal governments or preempt Tribal law.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate Matter, Reporting and recordkeeping requirements.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(c) Approval and Disapproval—In an August 9, 2011, submittal, and supplemented on August 25, 2011, and June 27, 2012, Illinois certified that the State has satisfied the inf