Air Plan Approval; Wisconsin; Wisconsin State Board Requirements

Federal Register, Volume 80 Issue 176 (Friday, September 11, 2015)

Federal Register Volume 80, Number 176 (Friday, September 11, 2015)

Proposed Rules

Pages 54744-54746

From the Federal Register Online via the Government Publishing Office www.gpo.gov

FR Doc No: 2015-22713

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

EPA-R05-OAR-2015-0464; FRL-9933-63-Region 5

Air Plan Approval; Wisconsin; Wisconsin State Board Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to approve state implementation plan (SIP) submissions from Wisconsin regarding the state board requirements under section 128 of the Clean Air Act (CAA). EPA is also proposing to approve elements of SIP submissions from Wisconsin regarding the infrastructure requirements of section 110 relating to state boards for the 1997 ozone, 1997 fine particulate (PM2.5), 2006 PM2.5, 2008 lead (Pb), 2008 ozone, 2010 nitrogen dioxide (NO2), and 2010 sulfur dioxide (SO2) National Ambient Air Quality Standards (NAAQS).

DATES: Comments must be received on or before October 13, 2015.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-

OAR-2015-0464, by one of the following methods:

1. www.regulations.gov: Follow the on-line instructions for submitting comments.

2. Email: aburano.douglas@epa.gov.

3. Fax: (312) 408-2279.

4. Mail: Douglas Aburano, Chief, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.

5. Hand Delivery: Douglas Aburano, Chief, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Such deliveries are only accepted during the Regional Office normal hours of operation, and special arrangements should be made for deliveries of boxed information. The Regional Office official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

   Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-

   2015-0464. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or email. The www.regulations.gov Web site is an ``anonymous access'' system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact

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   you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional instructions on submitting comments, go to Section I of the SUPPLEMENTARY INFORMATION section of this document.

   Docket: All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. We recommend that you telephone Eric Svingen, Environmental Engineer, at (312) 353-4489 before visiting the Region 5 office.

   FOR FURTHER INFORMATION CONTACT: Eric Svingen, Environmental Engineer, Attainment Planning and Maintenance Section, Air Programs Branch (AR-

   18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-4489, svingen.eric@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:

   1. What should I consider as I prepare my comments for EPA?

   2. What is the background of these SIP submissions?

   3. What guidance is EPA using to evaluate these SIP submissions?

   4. What is the result of EPA's review of these SIP submissions?

   5. What action is EPA taking?

   6. Incorporation by Reference.

   7. Statutory and Executive Order Reviews.

   1. What should I consider as I prepare my comments for EPA?

   When submitting comments, remember to:

1. Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).

2. Follow directions--EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

3. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

4. Describe any assumptions and provide any technical information and/or data that you used.

5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

6. Provide specific examples to illustrate your concerns, and suggest alternatives.

7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

8. Make sure to submit your comments by the comment period deadline identified.

   2. What is the background of these SIP submissions?

      This rulemaking addresses submissions from the Wisconsin Department of Natural Resources (WDNR) dated July 2, 2015. These submissions are intended to address CAA requirements relating to the state board requirements under section 128, as well as infrastructure requirements of section 110 relating to state boards for the 1997 ozone, 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.

      The requirement for states to make infrastructure SIP submissions 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 ``each such plan'' submission must address.

      EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA section 110(a)(1) and (2) as ``infrastructure SIP'' submissions. Although the term ``infrastructure SIP'' does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA. This specific rulemaking is only taking action on the CAA 110(a)(2)(E)(ii) element of these infrastructure SIP requirements, which is the only infrastructure SIP element addressed in WDNR's submittal dated July 2, 2015.

   3. What guidance is EPA using to evaluate these SIP submissions?

      EPA's guidance for these submissions is highlighted 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 \1\ National Ambient Air Quality Standards'' (2007 Guidance). Further guidance is provided in a September 13, 2013, document entitled ``Guidance on Infrastructure State Implementation Plan (SIP) Elements under CAA Sections 110(a)(1) and (2)'' (2013 Guidance).

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      \1\ PM2.5 refers to particles with an aerodynamic diameter of less than or equal to 2.5 micrometers, oftentimes referred to as ``fine'' particles.

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   4. What is the result of EPA's review of these SIP submissions?

      Pursuant to section 110(a), states must provide reasonable notice and opportunity for public hearing for all infrastructure SIP submissions. WDNR provided notice of a public comment period on May 9, 2015, held a public hearing at WDNR State Headquarters on June 9, 2015, and closed the public comment period on June 11, 2015. No comments were received.

      Wisconsin provided a detailed synopsis of how various components of its SIP meet each of the applicable requirements in section 128 and 110(a)(2)(E)(ii) for the 1997 ozone, 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS, as applicable. The following review evaluates the state's submissions.

      1. Section 128

         Section 128 of the CAA includes just one subsection labeled ``(a)'', which contains two explicit requirements: (1) 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 (2) 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.

         On July 2, 2015, WDNR submitted rules from Wisconsin Statutes (Wis. Stats.) for incorporation into the SIP, pursuant to section 128 of the CAA. Wisconsin maintains a state board, called the Wisconsin Natural Resources

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         Board (NRB). However, the NRB's functions are purely regulatory, advisory, and policy-making. Under Wis. Stats. 15.05, the administrative powers and duties of the WDNR, including issuance of permits and enforcement orders, are vested in the secretary. Under the statutes that govern its operations, the NRB does not and cannot approve permits or enforcement orders. Therefore, Wisconsin has no further obligations under section 128(a)(1) of the CAA.

         Under section 128(a)(2) of the CAA, the head of the executive agency with the power to approve permits or enforcement orders must adequately disclose any potential conflicts of interest. In Wisconsin, this power is vested in the Secretary of the WDNR. Wis. Stats. 19.45(2) prevents financial gain of any public official, which addresses the issue of deriving any significant portion of income from persons subject to permits and enforcement orders. Additionally, Wis. Stats. 19.46 prevents a public official from taking actions where there is a conflict of interest. As a public official under Wis. Stats. 19, the Secretary of the WDNR is subject to these ethical obligations. As requested in WDNR's submission, EPA is proposing to incorporate Wis. Stats. 15.05, 19.45(2), and 19.46 into Wisconsin's SIP. EPA proposes that these statutes satisfy all requirements under section 128 of the CAA.

      2. Section 110(a)(2)(E)(ii)

         Section 110(a)(2)(E)(ii) of the CAA also requires each SIP to contain provisions that comply with the state board requirements of section 128 of the CAA.

         In its submittal dated July 2, 2015, WDNR requested that Wis. Stats. 15.05, 19.45(2), and 19.46 be applied not only to obligations under section 128 of the CAA, but also to infrastructure SIP requirements for the 1997 ozone, 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS. EPA therefore proposes that Wisconsin has met the infrastructure SIP requirements of this portion of section 110(a)(2)(E)(ii) with respect to the 1997 ozone, 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.

   5. What Action is EPA Taking?

      EPA is proposing to incorporate Wis. Stats. 15.05, 19.45(2), and 19.46 into Wisconsin's SIP. EPA is further proposing to approve these submissions as meeting CAA obligations under section 128, as well as 110(a)(2)(E)(ii) for the 1997 ozone, 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.

   6. 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 Wis. Stats. 15.05, effective July 2, 2013, Wis. Stats. 19.45(2), effective May 11, 1990, and Wis. Stats. 19.46, effective February 17, 2007. EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

   7. 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 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: August 28, 2015.

      Susan Hedman,

      Regional Administrator, Region 5.

      FR Doc. 2015-22713 Filed 9-10-15; 8:45 am

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