[Federal Register Volume 76, Number 82 (Thursday, April 28, 2011)]
[Proposed Rules]
[Pages 23757-23768]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-10331]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2007-1179; FRL-9299-8]
Approval and Promulgation of Air Quality Implementation Plans;
Infrastructure SIP Requirements for 1997 8-Hour Ozone and PM2.5
National Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to approve some elements and conditionally
approve other elements of certifications submitted by Illinois,
Indiana, Michigan, Minnesota, Ohio, and Wisconsin regarding the
infrastructure requirements of sections 110(a)(1) and (2) of the Clean
Air Act (CAA) for the 1997 eight-hour ground level ozone national
ambient air quality standards (1997 ozone NAAQS) and 1997 fine particle
national ambient air quality standards (1997 PM2.5 NAAQS).
The requirements are designed to ensure that the 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 May 31, 2011.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2007-1179, by one of the following methods:
1. http://www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. E-mail: [email protected].
3. Fax: (312) 692-2551.
4. Mail: John M. Mooney, Chief, Air Programs Branch (AR-18J), U.S.
Environmental Protection Agency, 77 West Jackson Boulevard, Chicago,
Illinois 60604.
5. Hand Delivery: John M. Mooney, Chief, 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 EPA-R05-OAR-2007-
1179. EPA's policy is that all comments received will be included in
the public docket without change and may be made available online at
http://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 http://www.regulations.gov or e-mail. The http://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 e-mail comment directly to EPA without
going through http://www.regulations.gov your e-mail 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 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.
Docket: All documents in the docket are listed in the http://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 http://www.regulations.gov or in hard copy at the U.S. Environmental
Protection Agency, Region 5, Air and Radiation Division, 77 West
Jackson Boulevard, Chicago, Illinois 60604. This facility is open from
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal
holidays. We recommend that you telephone Andy Chang, Environmental
Engineer, at (312) 886-0258 before visiting the Region 5 office.
FOR FURTHER INFORMATION CONTACT: Andy Chang, Environmental Engineer,
Attainment Planning and Maintenance Section, Air Programs Branch (AR-
18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson
Boulevard, Chicago, Illinois 60604, (312) 886-0258, [email protected].
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 should I consider as I prepare my comments for EPA?
II. What is the background of these submittals?
A. What State submittals does this rulemaking address?
B. Why did the States make these submittals?
III. What criteria is EPA using to judge these submittals?
IV. What did EPA find from its review of these submittals?
A. Section 110(a)(2)(A)--Emission Limits and Other Control
Measures
B. Section 110(a)(2)(B)--Ambient Air Quality Monitoring/Data
System
C. Section 110(a)(2)(C)--Program for Enforcement of Control
Measures
D. Section 110(a)(2)(D)--Interstate Transport
E. Section 110(a)(2)(E)--Adequate Resources
F. Section 110(a)(2)(F)--Stationary Source Monitoring System
G. Section 110(a)(2)(G)--Emergency Power
H. Section 110(a)(2)(H)--Future SIP Revisions
I. Section 110(a)(2)(I)--Nonattainment Area Plan or Plan
Revisions Under Part D
J. Section 110(a)(2)(J)--Consultation With Government Officials;
Public Notifications; Prevention of Significant Deterioration;
Visibility Protection
K. Section 110(a)(2)(K)--Air Quality Modeling/Data
L. Section 110(a)(2)(L)--Permitting Fees
M. Section 110(a)(2)(M)--Consultation/Participation by Affected
Local Entities
V. What action is EPA taking?
VI. Statutory and Executive Order Reviews
I. 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.
[[Page 23758]]
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.
II. What is the background of these submittals?
A. What State submittals does this rulemaking address?
This rulemaking addresses State submittals 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 State made submittals
on the following dates: Illinois--December 12, 2007; Indiana--December
7, 2007, and supplemented on September 19, 2008, March 23, 2011, and
April 7, 2011; Michigan--December 6, 2007, and supplemented on
September 19, 2008 and April 6, 2011; Minnesota--November 29, 2007;
Ohio--December 5, 2007, and supplemented on April 7, 2011; and,
Wisconsin--December 12, 2007, and supplemented on January 24, 2011 and
March 28, 2011.
B. Why did the States make these submittals?
Under sections 110(a)(1) and (2) of the CAA, and implementing EPA
policy, the States were required to submit either revisions to their
State Implementation Plans (SIPs) that provide for implementation,
maintenance, and enforcement of the 1997 standards, or certifications
that their existing SIPs for ozone and particulate matter already met
those requirements. In accordance with an October 2, 2007 ``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'' (1997 Infrastructure Memo), the submittals meeting the
requirements were to be submitted to EPA within three years after
promulgation of the revised standards. As the guidance acknowledged,
July 16, 2000 was the initial due date; however, intervening litigation
over the 1997 ozone and 1997 PM2.5 NAAQS created uncertainty
about how States were to proceed.\1\ In subsequent consent decrees with
Earth Justice, EPA agreed to make official findings on whether the
States had made SIP submissions to satisfy the CAA requirements by
specified dates. SIPs intended to satisfy the infrastructure elements
for the 1997 ozone NAAQS were due on December 15, 2007; SIPs intended
to satisfy the infrastructure elements for the 1997 PM2.5
NAAQS were due on October 15, 2008. The certifications referenced in
this rulemaking pertain to the requirements of sections 110(a)(1) and
(2) of the CAA. The six State submittals being evaluated here address
both ozone and PM2.5, and the proposed rulemaking addresses
both pollutants as well.
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\1\ See, e.g., Whitman v. American Trucking Associations, Inc.,
531 U.S. 457 (2001).
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III. What criteria is EPA using to judge these submittals?
EPA discussed the applicable review criteria in the 1997
Infrastructure Memo. Specifically, Attachment A of this memorandum
(Required Section 110 SIP Elements) identified criteria for the States
to meet in order to satisfy these sections of the CAA. On September 25,
2009, EPA issued an updated guidance document pertaining to the 2006
PM2.5 NAAQS entitled ``Guidance on SIP Elements Required
Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particle
(PM2.5) National Ambient Air Quality Standards (NAAQS)''
(2006 Infrastructure Memo), which clarifies expectations for certain
elements to meet the requirements of sections 110(a)(1) and (2) of the
CAA under the new NAAQS. Where possible and appropriate, EPA will
reference the guidance contained in the 2006 Infrastructure Memo as it
pertains to the States' submittals.
In this proposed rulemaking, EPA is not acting on portions of
section 110(a)(2)(C)--Program for enforcement of control measures;
section 110(a)(2)(D)--Interstate transport; and section 110(a)(2)(J)--
Consultation with government officials, public notifications,
prevention of significant deterioration, and visibility protection. In
addition, EPA is not acting on section 110(a)(2)(I)--Nonattainment Area
Plan or Plan Revisions Under Part D, in its entirety. The rationale for
not acting on elements of these requirements is discussed below.
IV. What did EPA find from its review of these submittals?
The six States in Region 5 have certified that they meet the
applicable requirements of sections 110(a)(1) and 110(a)(2) without
further revisions to their respective SIPs. Therefore, consistent with
the 2006 Infrastructure Memo, no public hearing process was necessary
at the State level. Nevertheless, EPA believes that the public will
have the opportunity to review each certification through our notice-
and-comment rulemaking process. Illinois EPA, IDEM, MDEQ, MPCA, Ohio
EPA, and WDNR provided detailed synopses of how various components of
their respective air quality management programs meet each of the
requirements in section 110(a)(2). The following review evaluates the
six States' submittals.
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. The specific nonattainment area
plan requirements of section 110(a)(2)(I) are subject to the timing
requirements of section 172, not the timing requirement of section
110(a)(1). Section 110(a)(2)(A) does not require that States submit
regulations or emissions limits specifically for attaining either the
1997 ozone or PM2.5 NAAQS. Those regulations are due as part
of each State's attainment demonstration, and will be addressed
separately from the requirements of section 110(a)(2)(A).
The Illinois Environmental Protection Act is contained in chapter
415, section 5, of the Illinois Compiled Statutes (415 ILCS 5). 415
ILCS 5/4 provides the Director of Illinois EPA with the authority to
develop rules and regulations necessary to meet ambient air quality
standards. Additionally, the Illinois Pollution Control Board (IPCB)
was created under 415 ILCS 5, and has the authority to develop rules
and regulations necessary to promote the purposes of the Illinois
Environmental Protection Act. Furthermore, the IPCB ensures compliance
with required laws and other elements of the State's attainment plan
that are necessary to attain the NAAQS, and to comply with the
requirements of the CAA. (415 ILCS 5/10) EPA concludes that Illinois
has met the requirements of section 110(a)(2)(A) with respect to the
1997 ozone and PM2.5 NAAQS.
[[Page 23759]]
IDEM's authority to adopt emissions standards and compliance
schedules is found at Indiana Code (IC) 13-14-8, IC 13-17-3-4, IC 13-
17-3-11, and IC 13-17-3-14. EPA concludes that Indiana has met the
requirements of section 110(a)(2)(A) with respect to the 1997 ozone and
PM2.5 NAAQS.
The Michigan Natural Resources and Environmental Protection Act,
1994 PA 451, as amended (Act 451), sections 324.5503 and 324.5512,
provide the Director of MDEQ the authority to regulate the discharge of
air pollutants, and to promulgate rules to establish standards for
emissions for ambient air quality and for emissions. EPA concludes that
Michigan has met the requirements of section 110(a)(2)(A) with respect
to the 1997 ozone and PM2.5 NAAQS.
Minnesota Statute chapter 116.07 gives MPCA 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 concludes that Minnesota has met the
requirements of section 110(a)(2)(A) with respect to the 1997 ozone and
PM2.5 NAAQS.
Ohio Revised Code (ORC) 3704.03 provides the Director of Ohio EPA
with the authority to develop rules and regulations necessary to meet
State and Federal ambient air quality standards. EPA concludes that
Ohio has met the requirements of section 110(a)(2)(A) with respect to
the 1997 ozone and PM2.5 NAAQS.
Wisconsin Statutes (WS) chapter 285.11 through WS chapter 285.19
establishes general authority for monitoring, updating, and
implementing necessary revisions to the Wisconsin SIP. EPA concludes
that Wisconsin has met the requirements of section 110(a)(2)(A) with
respect to the 1997 ozone and PM2.5 NAAQS.
A number of States have provisions regarding excess emissions
during startup, shutdown, or malfunction (SSM) which are contrary to
the CAA and existing EPA guidance, including a September 20, 1999
memorandum entitled, ``State Implementation Plans: Policy Regarding
Excess Emissions During Malfunction, Startup, and Shutdown.'' As a
result, in this rulemaking, EPA is not proposing to approve or
disapprove any existing State provisions with regard to excess
emissions during SSM of operations at facilities. EPA plans to address
such State regulations in the future. In the meantime, EPA encourages
any State having a deficient SSM provision to take steps to correct it
as soon as possible.
In the same manner, EPA is not proposing to approve or disapprove
any existing State rules with regard to so-called ``Director's
discretion'' or variance provisions. EPA believes that a number of
States have such provisions which are contrary to the CAA existing EPA
guidance (52 FR 45109) issued on November 24, 1987. EPA plans to take
action in the future to address such State regulations. In the
meantime, EPA encourages any State having a Director's discretion or
variance provision which is contrary to the CAA and EPA guidance to
take steps to correct the deficiency as soon as possible.
B. Section 110(a)(2)(B)--Ambient Air Quality Monitoring/Data System
This section requires SIPs to include provisions to provide for
establishing and operating ambient air quality monitors, collecting and
analyzing ambient air quality data, and making these data available to
EPA upon request. EPA has determined that in order to meet the
requirements of section 110(a)(2)(B), each State should: Submit an
annual monitoring plan for the relevant NAAQS, and have this plan
approved by EPA; monitor air quality for the relevant pollutant at
appropriate locations throughout the State using EPA-approved Federal
Reference Methods or Federal Equivalent Method monitors; submit data to
EPA's Air Quality System (AQS) in a timely manner; and, provide EPA
Regional Offices with prior notification of any planned changes to
monitoring sites or the network plan.
Illinois EPA continues to operate an extensive monitoring network
incorporating more than 300 monitors throughout the State. Illinois EPA
also publishes an annual report that summarizes air quality trends.
Furthermore, Illinois EPA submits yearly monitoring network plans to
EPA, and the 2011 Annual Air Monitoring Network Plan was approved by
EPA on October 29, 2010. Monitoring data from Illinois EPA is entered
into AQS in a timely manner, and the State provides EPA with prior
notification when changes to its monitoring network or plan are being
considered. EPA concludes that Illinois has met the requirements of
section 110(a)(2)(B) with respect to the 1997 ozone and
PM2.5 NAAQS.
IDEM continues to operate an air monitoring network; the State's
2011 Annual Air Monitoring Network Plan was approved by EPA on October
29, 2010. Monitoring data from IDEM are entered into AQS in a timely
manner, and the State provides EPA with prior notification when changes
to its monitoring network or plan are being considered. EPA concludes
that Indiana has met the requirements of section 110(a)(2)(B) with
respect to the 1997 ozone and PM2.5 NAAQS.
MDEQ maintains a comprehensive network of air quality monitors
throughout Michigan. MDEQ's 2011 Annual Air Monitoring Network Plan was
approved by EPA on October 29, 2010. MDEQ enters air monitoring data
into AQS, and the State provides EPA with prior notification when
changes to its monitoring network or plan are being considered. EPA
concludes that Michigan has met the requirements of section
110(a)(2)(B) with respect to the 1997 ozone and PM2.5 NAAQS.
MPCA continues to operate an ambient pollutant monitoring network,
and compiles and reports air quality data to EPA. MPCA's 2011 Annual
Air Monitoring Network Plan was approved by EPA on October 29, 2010.
MPCA also provides prior notification to EPA when changes to its
monitoring network or plan are being considered. EPA concludes that
Minnesota has met the requirements of section 110(a)(2)(B) with respect
to the 1997 ozone and PM2.5 NAAQS.
Ohio EPA continues to operate a monitoring network; the State's
2011 Annual Air Monitoring Network Plan was approved by EPA on December
2, 2010. Furthermore, Ohio EPA populates AQS with air quality
monitoring data in a timely manner, and provides EPA with prior
notification when considering a change to its monitoring network or
plan. EPA concludes that Ohio has met the requirements of section
110(a)(2)(B) with respect to the 1997 ozone and PM2.5 NAAQS.
WDNR continues to operate an extensive monitoring network; the
State's 2011 Annual Air Monitoring Network Plan was approved by EPA on
December 21, 2010. WDNR enters air quality data into AQS in a timely
manner, and gives EPA prior notification when considering a change to
its monitoring network or plan. EPA concludes that Wisconsin has met
the requirements of section 110(a)(2)(B) with respect to the 1997 ozone
and PM2.5 NAAQS.
C. Section 110(a)(2)(C)--Program for Enforcement of Control Measures
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 new source review (NSR)
requirements under the prevention of significant deterioration (PSD)
and nonattainment new source review (NNSR) programs. Part C of the
[[Page 23760]]
CAA (sections 160-169B) addresses PSD, while part D of the CAA
(sections 171-193) addresses NNSR requirements.
The evaluation of the Region 5 States' certifications addressing
the requirements of section 110(a)(2)(C) covers: Enforcement of SIP
measures; oxides of nitrogen (NOX) as a precursor to ozone
in the PSD program; PM10 \2\ as a surrogate for
PM2.5 in the PSD program; NSR Reform; Greenhouse gas (GHG)
permitting and the ``tailoring rule''; and, minor NSR regulations.
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\2\ PM10 refers to particles with diameters between
2.5 and 10 microns, oftentimes referred to as ``coarse'' particles.
Coarse particles are frequently the result from crushing or grinding
operations, and can come from dust on paved or unpaved roads as
well.
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Sub-Element 1: Enforcement of SIP Measures
Illinois continues to staff and implement an enforcement program
comprised, and operated by, the Compliance Section and Division of
Legal Counsel. 415 ILCS 5/4 provides the Director of Illinois EPA with
the authority to implement and administer this enforcement program.
Furthermore, Illinois EPA has confirmed that all enforcement actions
are brought by the Office of the Illinois Attorney General or local
State's Attorney offices, with whom Illinois EPA consults. EPA
concludes that Illinois has met the enforcement of SIP measures
requirements of section 110(a)(2)(C) with respect to the 1997 ozone and
PM2.5 NAAQS.
IDEM maintains an enforcement program to ensure compliance with SIP
requirements. IC 13-14-1-12 provides the Commissioner with the
authority to enforce rules ``consistent with the purpose of the air
pollution control laws.'' Additionally, IC 13-14-2-7 and IC 13-17-3-3
provide the Commissioner with the authority to assess civil penalties
and obtain compliance with any applicable rule a board has adopted in
order to enforce air pollution control laws. Lastly, IC 13-14-10-2
allows for an emergency restraining order that prevents any person from
causing, or introducing contaminants, that cause or contribute to air
pollution. EPA concludes that Indiana has met the enforcement of SIP
measures requirements of section 110(a)(2)(C) with respect to the 1997
ozone and PM2.5 NAAQS.
MDEQ continues to staff and implement an enforcement program to
assure compliance with all requirements under State law, consistent
with the provisions of Act 451. Additionally, this air quality
enforcement unit provides support and technical assistance to
Michigan's Attorney General on all air pollution enforcement issues
referred by MDEQ's Air Quality Division for escalated enforcement
action. Lastly, the air quality enforcement unit at MDEQ coordinates
formal administrative actions such as contested case hearings,
administrative complaints, and revocation of permits to install.
Therefore, EPA concludes that Michigan has met the enforcement of SIP
measures requirements of section 110(a)(2)(C) with respect to the 1997
ozone and PM2.5 NAAQS.
Minnesota Statute chapter 116.07 gives the 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. EPA concludes that Minnesota has met the
enforcement of SIP measures requirements of section 110(a)(2)(C) with
respect to the 1997 ozone and PM2.5 NAAQS.
Ohio EPA continues to staff and implement an enforcement program.
ORC 3704.03 provides the Director of Ohio EPA with the authority to
continue to implement the enforcement program as well as the updated
NSR provisions within Ohio Administrative Code (OAC) 3745-31. Ohio EPA
compiles all air pollution control enforcement settlements in the
State, and makes them available for public review on its Web site. EPA
concludes that Ohio has met the enforcement of SIP measures
requirements of section 110(a)(2)(C) with respect to the 1997 ozone and
PM2.5 NAAQS.
WDNR maintains an enforcement program to ensure compliance with SIP
requirements. The Bureau of Air Management houses an active Statewide
Compliance and Enforcement Team that works in all geographic regions of
the State. WDNR refers most actions to the Wisconsin Department of
Justice with the strong involvement of WDNR. Under WS chapter 285.13,
the agency has the authority to impose fees and penalties to ensure
that required measures are ultimately implemented. EPA concludes that
Wisconsin has met the enforcement of SIP measures requirements of
section 110(a)(2)(C) with respect to the 1997 ozone and
PM2.5 NAAQS.
Sub-Element 2: NOX as a Precursor to Ozone in the PSD
Program
Each State's PSD program must include NOX as a precursor
to ozone in order for this sub-element to be approvable. This
requirement was contained in the November 29, 2005 final rule to
implement the 1997 8-hour ozone NAAQS (see 70 FR 71699), and codified
at 40 CFR 52.21. Furthermore, EPA has determined that the analyses of
each State's PSD program must be holistic; if a State lacks provisions
needed to address NOX as a precursor to ozone, the
provisions of section 110(a) requiring a suitable permitting program
must be considered not to be met irrespective of the pollutant being
addressed.
Illinois and Minnesota have not adopted or submitted regulations
for PSD, although Federally promulgated rules for this purpose are in
effect in these two States, promulgated at 40 CFR 52.21. EPA has
currently delegated the authority to implement these regulations to
Illinois and Minnesota. These Federally promulgated rules include
provisions establishing NOX as a precursor to ozone. While
EPA acknowledges that the States have not satisfied the requirement for
a SIP submittal, they have no further obligations because EPA believes
that the plans for Illinois and Minnesota, specifically including the
Federally promulgated PSD regulations, meet this set of requirements of
section 110(a)(2)(C) with respect to the 1997 ozone and
PM2.5 NAAQS.
Indiana's PSD regulations were conditionally approved by EPA on
March 3, 2003 (68 FR 9892), and fully approved on May 20, 2004 (69 FR
29071). These regulations contain provisions establishing
NOX as a precursor to ozone. Therefore, EPA concludes that
Indiana has met this set of requirements of section 110(a)(2)(C) with
respect to the 1997 ozone and PM2.5 NAAQS.
Michigan's PSD regulations were conditionally approved by EPA on
September 16, 2008 (73 FR 53366), and fully approved by EPA on March
25, 2010 (75 FR 14352). These regulations contain provisions
establishing NOX as a precursor to ozone. Therefore, EPA
concludes that Michigan has met this set of requirements of section
110(a)(2)(C) with respect to the 1997 ozone and PM2.5 NAAQS.
EPA conditionally approved Ohio EPA's PSD regulations on October
10, 2001 (66 FR 51570), and fully approved by EPA on January 22, 2003
(68 FR 2909). These regulations contain provisions establishing
NOX as a precursor to ozone. Therefore, EPA concludes that
Ohio has met this set of requirements of section 110(a)(2)(C) with
respect to the 1997 ozone and PM2.5 NAAQS.
EPA approved Wisconsin's PSD rules on May 27, 1999 (64 FR 28745).
These
[[Page 23761]]
regulations contain provisions establishing NOX as a
precursor to ozone. Therefore, EPA finds that Wisconsin has met this
set of requirements of section 110(a)(2)(C) with respect to the 1997
ozone and PM2.5 NAAQS.
Sub-Element 3: PM10 as a Surrogate for PM2.5 in
the PSD Program
On October 23, 1997, EPA issued a policy allowing PM10
emissions to be used as a surrogate for PM2.5 emissions in
the PSD program. This policy was issued by the Director of the Office
of Air Quality Planning and Standards, and entitled, ``Interim
Implementation of New Source Review for PM2.5.'' At that
time, EPA's justification for using PM10 as a surrogate for
PM2.5 was that permitting authorities were not able to
accurately calculate emissions of PM2.5 and related
precursors or to predict PM2.5 ambient air quality impacts
from projects. 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),''
which ended the PM10 surrogate policy, and confirmed that
States wanting to submit PSD program regulations for EPA approval would
need to evaluate PM2.5 emissions rather than
PM10. The deadline for States to submit revised PSD
regulations addressing PM2.5 emissions is May 16, 2011; in
the interim, States may still use the PM10 surrogate policy.
Furthermore, EPA has determined that the evaluation of the PSD program
must be holistic; if States do not submit amendments that evaluate
direct PM2.5 emissions by May 16, 2011, EPA would consider
the PSD requirements under section 110(a) unmet, irrespective of the
pollutant for which EPA is evaluating the satisfaction of section
110(a).
Illinois and Minnesota have not adopted or submitted regulations
for PSD, although Federally promulgated rules for this purpose are in
effect in these two States, promulgated at 40 CFR 52.21. EPA has
currently delegated the authority to implement these regulations to
Illinois and Minnesota. These Federally promulgated rules require that
States evaluate PM2.5 emissions in the PSD program. While
EPA acknowledges that the States have not satisfied the requirement for
a SIP submittal, they have no further obligations because EPA believes
that the plans for Illinois and Minnesota, specifically including the
Federally promulgated PSD regulations, meet this set of requirements of
section 110(a)(2)(C) with respect to the 1997 ozone and
PM2.5 NAAQS.
Indiana, Ohio, and Michigan do not currently have the evaluation of
PM2.5 emissions adopted into their respective State
regulations. The May 16, 2011 deadline for submitting revisions to
their respective SIPs addressing the direct evaluation of
PM2.5 and its precursors may pass prior to final action of
these infrastructure SIPs. As a result, EPA has determined that so long
as States provide a formal commitment to submit the requisite
PM2.5 revisions for SIP approval not later than one year
after final action of these infrastructure SIPs, we can propose a
conditional approval for Indiana, Ohio, Michigan, and Wisconsin with
respect to this set of requirements of section 110(a)(2)(C).
EPA received formal commitments from IDEM (March 23, 2011), Ohio
EPA (April 7, 2011), and MDEQ (April 6, 2011) affirming that each State
will submit revisions to the SIP incorporating the direct evaluation of
PM2.5 and its precursors within one year of our final action
of these infrastructure SIPs. Therefore, EPA proposes to conditionally
approve the plans for Indiana, Ohio, and Michigan addressing this set
of requirements of section 110(a)(2)(C) with respect to the 1997 ozone
and PM2.5 NAAQS.
If, however, Indiana, Ohio and Michigan do not submit revisions to
their respective SIPs incorporating the direct evaluation of
PM2.5 and its precursors within one year of final action on
these infrastructure SIPs, the conditional approval will automatically
revert to disapproval with respect to this set of requirements of
section 110(a)(2)(C) for the 1997 ozone and PM2.5 NAAQS.
In a March 28, 2011 letter from Wisconsin's Director of the Bureau
of Air Management, WDNR informed EPA that current State rules provide
for NSR permitting for PM2.5 without the use of the
PM10 surrogate policy. EPA therefore concludes that
Wisconsin has met this set of requirements of section 110(a)(2)(C) with
respect to the 1997 ozone and PM2.5 NAAQS.
Sub-Element 4: NSR Reform
In this action, EPA is not proposing to approve or disapprove any
State rules with regard to NSR reform requirements (see 67 FR 80186).
EPA has acted on NSR reform submittals from Region 5 States through
earlier separate rulemakings.\3\ For the purpose of this action, ``NSR
reform'' applies to major NSR only.
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\3\ http://www.epa.gov/reg5oair/permits/const/frn-nsr.html.
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Sub-Element 5: GHG Permitting and the ``Tailoring Rule''
On June 3, 2010, EPA issued a final rule establishing a ``common
sense'' approach to addressing GHG emissions from stationary sources
under the CAA permitting programs. The ``Prevention of Significant
Deterioration and Title V Greenhouse Gas Tailoring Rule,'' or
``tailoring rule,'' set thresholds for GHG emissions that define when
permits under the NSR PSD and title V operating permit programs are
required for new and existing industrial facilities (75 FR 31514). The
tailoring rule set the GHG PSD applicability threshold at 75,000 tons
per year (tpy) as expressed in carbon dioxide equivalent; if States
have not adopted this threshold, sources with GHG emissions above 100
tpy or 250 tpy (depending on source category) would be subject to PSD,
effective January 2, 2011. The lower thresholds could potentially
result in apartment complexes, strip malls, small farms, restaurants,
etc. triggering GHG PSD requirements.
On December 23, 2010, EPA issued a subsequent series of rules that
put the necessary framework in place to ensure that industrial
facilities can get CAA permits covering their GHG emissions when
needed, and that facilities emitting GHGs at levels below those
established in the tailoring rule do not need to obtain CAA permits.\4\
Included in this series of rules was EPA's issuance of the ``Limitation
of Approval of Prevention of Significant Deterioration Provisions
Concerning Greenhouse Gas Emitting-Sources in State Implementation
Plans,'' referred to as the PSD SIP ``narrowing rule'' on December 30,
2010 (75 FR 82536). The narrowing rule limits, or ``narrows,'' EPA's
previous approval of PSD programs that were previously approved into
SIPs; the programs in question are those that apply PSD to sources that
emit GHG. Specifically, the effect of the narrowing rule is that
provisions that are no longer approved--e.g., portions of already
approved SIPs that apply PSD to GHG emissions increases from sources
emitting GHG below the tailoring rule thresholds--now have the status
of having been submitted by the State but not yet acted upon by EPA. In
other words, the narrowing rule focuses on eliminating the PSD
obligations under Federal law for sources below the tailoring rule
thresholds.
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\4\ http://www.epa.gov/NSR/actions.html#2010.
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EPA has found that the six Region 5 States and their respective PSD
programs fall into three distinct categories: States that have not
adopted
[[Page 23762]]
or submitted any regulations for PSD; States that have a previously
approved PSD program that predates both the tailoring rule and the
narrowing rule; and, a State that has submitted certifications of PSD
program with GHG permitting applicability consistent with the tailoring
rule thresholds. Each Region 5 State's status with respect to its GHG
PSD program, as well as EPA's proposed actions, is discussed below.
Illinois and Minnesota have not adopted or submitted regulations
for PSD, although Federally promulgated rules for this purpose are in
effect in these two States, promulgated at 40 CFR 52.21. EPA has
currently delegated the authority to implement these regulations to
Illinois and Minnesota. These Federally promulgated rules contain the
threshold as outlined in the tailoring rule. While EPA acknowledges
that the States have not satisfied the requirement for a SIP submittal,
they have no further obligations because EPA believes that the plans
for Illinois and Minnesota, specifically including the Federally
promulgated PSD regulations, meet this set of requirements of section
110(a)(2)(C) and (E) \5\ with respect to the 1997 ozone and
PM2.5 NAAQS.
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\5\ Section 110(a)(2)(E) requires that States have the resources
to administer an air quality management program. Some States that
are not covered by the narrowing rule may not be able to adequately
demonstrate that they have adequate personnel to issue GHG permits
to all sources that emit GHG under the tailoring rule thresholds.
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The States of Indiana, Ohio, and Wisconsin have the legal authority
under their approved PSD SIPs to regulate GHGs as part of their PSD
permitting programs. In the PSD SIP narrowing rule, EPA narrowed its
previous approval of these States' PSD programs to ensure that the
Federally approved PSD programs in these three States only require PSD
permitting of sources emitting GHG at or above the thresholds
established in the tailoring rule.
As noted above, EPA received the infrastructure SIP submittals from
these three States in December 2007, before EPA identified GHG as a
regulated pollutant and before EPA promulgated the Tailoring Rule. On
April 7, 2011, Indiana and Ohio transmitted letters clarifying to EPA
that their respective submissions, currently before EPA for our review,
include only those parts of their PSD SIPs that remain approved after
the PSD SIP Narrowing Rule. Wisconsin transmitted a similar letter on
March 28, 2011. Thus, the GHG PSD permitting requirements included in
these three States' infrastructure SIP submittals consist of only those
portions of their PSD SIP programs that apply PSD permitting
requirements to GHG emissions at or above tailoring rule thresholds.
Therefore, EPA concludes that the GHG PSD permitting program in
Indiana, Ohio, and Wisconsin have met this set of requirements of
sections 110(a)(2)(C) and (E) for both the 1997 ozone and
PM2.5 NAAQS.
On July 27, 2010, Michigan informed EPA that the State has both the
legal and regulatory authority, as well as the resources, to permit GHG
under its SIP-approved PSD permitting program, consistent with the
thresholds laid out in the tailoring rule.\6\ Therefore, EPA concludes
that Michigan's GHG PSD permitting program has met this set of
requirements requirements of sections 110(a)(2)(C) and (E) for both the
1997 ozone and PM2.5 NAAQS.
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\6\ Letter from the Director of MDEQ to EPA Region 5 Regional
Administrator dated July 27, 2010.
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Sub-Element 6: Minor NSR Regulations
EPA has provided States with a broad degree of discretion in
implementing their programs for review of minor new sources (minor
NSR), as reflected in the less detailed regulations for minor NSR
outlined in 40 CFR 51.160 to 40 CFR 51.164.
EPA previously approved each Region 5 State's minor NSR program
into the SIP, including provisions that adequately address the
emissions of PM2.5. EPA approvals for each State's minor NSR
program occurred on: Illinois--May 31, 1972 (37 FR 10862); Indiana--
October 7, 1994 (59 FR 51108); Michigan--May 6, 1980 (45 FR 29790);
Minnesota--May 24, 1995 (60 FR 27411); Ohio--January 22, 2003 (68 FR
2909); and, Wisconsin--February 17, 1995 (60 FR 3543). Since the date
of each approval, each Region 5 State 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 1997 ozone and PM2.5
NAAQS. In this action, EPA concludes that Illinois, Indiana, Michigan,
Ohio, Minnesota, and Wisconsin have met this set of requirements of
section 110(a)(2)(C) with respect to the 1997 ozone and
PM2.5 NAAQS.
Various sub-elements in this section overlap with elements of
section 110(a)(2)(E) and section 110(a)(2)(J). These links will be
discussed in the appropriate areas below.
D. Section 110(a)(2)(D)--Interstate Transport
Section 110(a)(2)(D)(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. Furthermore, this section
requires SIPs to 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
address regional haze.
EPA is not acting on any of the requirements of section
110(a)(2)(D)(i). The requirements that States have provisions
prohibiting any source or other type of emissions activity in that
State from contributing significantly to nonattainment, or interfering
with maintenance, of the NAAQS in another State are being addressed by
a new rule pertaining to interstate transport which EPA proposed on
August 2, 2010, entitled the ``Federal Implementation Plans to Reduce
Interstate Transport of Fine Particulate Matter and Ozone'' (Transport
Rule).\7\ PSD requirements have been addressed in the analysis of
section 110(a)(2)(C), and visibility requirements will be addressed in
the analysis of section 110(a)(2)(J). Again, in the context of section
110(a)(2)(D)(i), EPA is not taking action on the requirements for PSD
and visibility protection.
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\7\ See ``Federal Implementation Plans to Reduce Interstate
Transport of Fine Particulate Matter and Ozone; Proposed Rule,'' 75
FR 45210 (August 2, 2010).
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Section 110(a)(2)(D)(ii) requires each SIP to contain adequate
provisions requiring compliance with the applicable requirements of
section 126 and 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.
While Illinois and Minnesota have not adopted or submitted
regulations for PSD, Federally promulgated rules for this purpose are
in effect in each of the States, promulgated at 40 CFR 52.21. EPA has
currently delegated the authority to implement these regulations to
Illinois and Minnesota. These Federally promulgated rules contain
provisions requiring new or
[[Page 23763]]
modified sources to notify neighboring States of potential negative air
quality impacts. While EPA acknowledges that the States have not
satisfied the requirements of a SIP submittal, they have no further
obligations because EPA believes that the plans from Illinois and
Minnesota, specifically including the Federally promulgated PSD
regulations, meet this set of requirements of section 110(a)(2)(D) with
respect to the 1997 ozone and PM2.5 NAAQS.
Indiana, Michigan, Ohio, and Wisconsin have provisions in their
respective EPA-approved PSD programs requiring new or modified sources
to notify neighboring States of potential negative air quality impacts.
EPA concludes that Indiana, Michigan, Ohio, and Wisconsin have met the
requirements of section 126(a) with respect to the 1997 ozone and
PM2.5 NAAQS.
None of the Region 5 States have pending obligations under any
other section of section 126, nor do any of the Region 5 States have
any obligations under section 115. Therefore, EPA finds that all States
in Region 5 have met the requirements of section 110(a)(2)(D)(ii) with
respect to the 1997 ozone and PM2.5 NAAQS.
E. Section 110(a)(2)(E)--Adequate Resources
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.
Illinois Public Act 95-0348, Article 215 provides appropriations
for the Illinois EPA Bureau of Air Programs and associated personnel.
As discussed in previous sections, Illinois EPA has affirmed that 415
ILCS 5/4 and 415 ILCS 5/10 provide the Director, in conjunction with
IPCB, with the authority to develop rules and regulations necessary to
meet ambient air quality standards and respond to any EPA findings of
inadequacy with the Illinois SIP program. Lastly, IPCB ensures
compliance with required laws or elements of the State's attainment
plan that are necessary to attain the NAAQS, or that are necessary to
comply with the requirements of the CAA. EPA concludes that Illinois
has met the requirements of section 110(a)(2)(E) with respect to the
1997 ozone and PM2.5 NAAQS.
Indiana's biennial budget sets funding and personnel levels for
IDEM every two years. As discussed in earlier sections, IC 13-14-1-12
provides the Commissioner of IDEM with the authority to enforce air
pollution control laws. Furthermore, IC 13-14-8, IC 13-17-3-11, and IC
13-17-3-14 contain the authority for IDEM to adopt air emissions
standards and compliance schedules. EPA concludes that Indiana has met
the requirements of section 110(a)(2)(E) with respect to the 1997 ozone
and PM2.5 NAAQS.
Michigan's budget ensures that EPA grant funds as well as State
funding appropriations are sufficient to administer its air quality
management program, and MDEQ has routinely demonstrated that it retains
adequate personnel to carry out the duties of this program.
Furthermore, Act 451 provides the legal authority under State law to
carry out the Michigan SIP. EPA concludes that Michigan has met the
requirements of section 110(a)(2)(E) with respect to the 1997 ozone and
PM2.5 NAAQS.
Although MPCA did not expressly address this section, EPA
recognizes that the State's budget has been, and is, adequate for
administering its air quality management program. MPCA has routinely
demonstrated that it retains adequate personnel to carry out the duties
of this program. EPA also notes that Minnesota Statue chapter 116.07
provides the legal authority under State law to carry out the SIP. EPA
concludes that Minnesota has met the requirements of section
110(a)(2)(E) with respect to the 1997 ozone and PM2.5 NAAQS.
Ohio EPA has included its biennial budget with its submittal, which
details the funding sources and program priorities addressing the
required SIP programs. Ohio EPA has routinely demonstrated that it
retains adequate personnel to administer its air quality management
program. As discussed in previous sections, ORC 3704.03 provides the
legal authority under State law to carry out the SIP. EPA concludes
that Ohio has met the requirements of section 110(a)(2)(E) with respect
to the 1997 ozone and PM2.5 NAAQS.
Wisconsin's biennial budget ensures that EPA grant funds as well as
State funding appropriations are sufficient to administer its air
quality management program, and WDNR has routinely demonstrated that it
retains adequate personnel to administer its air quality management
program. As discussed in previous sections, basic duties and
authorities in the State are outlined in WS chapter 285.11. EPA
concludes that Wisconsin has met the requirements of section
110(a)(2)(E) with respect to the 1997 ozone and PM2.5 NAAQS.
As noted above in the discussion addressing section 110(a)(2)(C),
the resources needed to permit all sources emitting more than 100 tpy
or 250 tpy (as applicable) of GHG would require more resources than any
Region 5 State appears to have. This is not a concern in Illinois and
Minnesota, because PSD permitting for GHGs is based on Federally
promulgated PSD rules that ``tailor'' the applicability to 75,000 tons
per year (expressed as carbon dioxide equivalent).
Given the effect of EPA's narrowing rule to provide that approved
SIPs for Indiana, Ohio, and Wisconsin do not involve permitting GHG
sources smaller than the tailoring rule thresholds, EPA concludes that
these States also have the resources necessary to implement the
requirements of their respective SIPs.
As previously discussed, Michigan's PSD regulations provide the
State with adequate resources to permit GHG consistent with the
tailoring rule thresholds; therefore, EPA concludes that Michigan
retains all the resources necessary to implement the requirements of
its SIP.
F. Section 110(a)(2)(F)--Stationary Source Monitoring System
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 period 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.
Illinois EPA requires regulated sources to submit various reports,
dependent on applicable requirements and the type of permit issued to
the source. These reports are submitted to the Bureau of Air's
Compliance Unit for review, and all reasonable efforts are made by
Illinois EPA to maximize the effectiveness of available resources to
review the required reports. EPA concludes that Illinois has satisfied
the requirements of section 110(a)(2)(F) with respect to the 1997 ozone
and PM2.5 NAAQS.
The Indiana State rules for monitoring requirements are contained
in 326 Indiana Administrative Code (IAC) 3. Additional emissions
reporting requirements are found in 326 IAC 2-6. EPA concludes that
Indiana has satisfied the requirements of section 110(a)(2)(F) with
respect to the 1997 ozone and PM2.5 NAAQS.
[[Page 23764]]
Michigan Administrative Code (MAC) R336.2001 to R336.2004 provide
requirements for performance testing and sampling. MAC R336.2101 to
R336.2199 provide requirements for continuous emission monitoring, and
MAC R336.201 and R336.202 require annual reporting of emissions. EPA
concludes that Michigan has met the requirements of section
110(a)(2)(F) with respect to the 1997 ozone and PM2.5 NAAQS.
Under Minnesota State air quality rules, any NAAQS is an applicable
requirement for stationary sources. Minnesota's monitoring rules have
been previously approved by EPA and are contained in Chapter 7011 of
Minnesota's SIP. EPA concludes that Minnesota has met the requirements
of section 110(a)(2)(F) with respect to the 1997 ozone and
PM2.5 NAAQS.
Ohio EPA district offices and local air agencies are currently
required to witness 50% of all source testing and review 100% of all
tests. EPA recognizes that Ohio has routinely submitted quality assured
analyses and data for publication. Furthermore, requirements for
continuous emissions monitoring under 40 CFR part 51, Appendix P are
contained in OAC 3745-17-03(c). EPA concludes that Ohio has met the
requirements of section 110(a)(2)(F) with respect to the 1997 ozone and
PM2.5 NAAQS.
Wisconsin DNR requires regulated sources to submit various reports,
dependent on applicable requirements and the type of permit issued, to
the Bureau of Air Management Compliance Team. The frequency and
requirements for report review are incorporated as part of Wisconsin
Administrative Code NR 438 and Wisconsin Administrative Code NR 439.
Additionally, WDNR routinely submits quality assured analyses and data
obtained from its stationary source monitoring system for review and
publication. EPA concludes Wisconsin has met the requirements of
section 110(a)(2)(F) with respect to the 1997 ozone and
PM2.5 NAAQS.
G. Section 110(a)(2)(G)--Emergency Power
EPA is currently in the process of promulgating new guidance
providing values that we would recommend for defining emergency
episodes for PM2.5. Subsequent to the December 2007
submittals, EPA has provided guidance regarding PM2.5
emergency episode planning. This guidance was provided in Attachment B
of a memorandum dated September 25, 2009, from the Director of the Air
Quality Policy Division to the Regional Air Division Directors. In
accordance with this guidance, EPA believes that where a State can
demonstrate that PM2.5 levels have consistently remained
below 140.4 micrograms per cubic meter ([mu]g/m\3\), provided the State
has appropriate general emergency powers to address PM2.5
related episodes, the State may satisfy section 110(a)(2)(G) without
necessarily providing for specific emergency episode plans or
contingency measures for PM2.5.
On January 11, 2011, Illinois EPA confirmed that all monitored
values of PM2.5 have been well below 140.4 [mu]g/m\3\ at all
sites in Illinois, and therefore Illinois is not specifically required
to submit an emergency episode plan and contingency measures for
PM2.5 at this time. Illinois also has the necessary general
authority to address emergency episodes. EPA concludes that Illinois
has met the requirements of section 110(a)(2)(G) with respect to the
1997 PM2.5 NAAQS.
On January 11, 2011, IDEM confirmed that all monitored values of
PM2.5 have been well below 140.4 [mu]g/m\3\ at all sites in
Indiana since 1999, and therefore Indiana is not specifically required
to submit an emergency episode plan and contingency measures for
PM2.5 at this time. Several statutory provisions in the
Indiana Code and the Indiana Administrative Code provide the proper
mechanisms to address air pollution emergency episodes. EPA concludes
that Indiana has met the requirements of section 110(a)(2)(G) with
respect to the 1997 PM2.5 NAAQS.
On January 11, 2011, MPCA observed that all monitored values of
PM2.5 have been well below 140.4 [mu]g/m\3\ at all sites in
Minnesota since 2006, with the highest recorded value since then being
57.5 [mu]g/m\3\. Therefore, Minnesota is not specifically required to
submit an emergency episode plan and contingency measures for
PM2.5 at this time. Chapter 7009 of the Minnesota SIP
contains the provisions necessary for determining air quality emergency
episodes. EPA concludes that Minnesota has met the requirements of
section 110(a)(2)(G) with respect to the 1997 PM2.5 NAAQS.
On January 24, 2011, MDEQ confirmed that all reliable monitored
PM2.5 values in Michigan have been well below 140.4 [mu]g/
m\3\. MDEQ did cite elevated readings in 2007 at a site operated by the
Intertribal Council (ITC). Although the data has not been removed by
ITC, EPA staff completed an analysis on March 30, 2011, attesting that
the data from the ITC site was reported to AQS without supporting
quality assurance measures. Therefore, EPA believes that the data
collected at this site is of unknown quality, and should be considered
invalid and unusable, especially for regulatory purposes. Since no
reliable observations in Michigan exceed 140.4 [mu]g/m\3\, EPA has
determined that Michigan is not specifically required to submit an
emergency episode plan and contingency measures for PM2.5 at
this time. Additionally, EPA is working with ITC to either invalidate
or delete the invalid data from AQS. Michigan R 324.5518 of Act 451
provides MDEQ with the authority to require the immediate
discontinuation of air contaminant discharges that constitute an
imminent and substantial endangerment to the public health, safety, or
welfare, or to the environment. Furthermore, R 324.5530 of Act 451
provides for civil action by the Michigan Attorney General for
violations described in R 324.5518. EPA concludes that Michigan has met
the requirements of section 110(a)(2)(G) with respect to the 1997
PM2.5 NAAQS.
On January 11, 2011, Ohio EPA confirmed that all monitored values
of PM2.5 have been well below 140.4 [mu]g/m\3\ at all sites
in Ohio, and therefore Ohio is not specifically required to submit an
emergency episode plan and contingency measures for PM2.5 at
this time. OAC 3745-25 provides the requirement to implement emergency
action plans in the event of an Air Quality Alert or higher. EPA
concludes that Ohio has met the requirements of section 110(a)(2)(G)
with respect to the 1997 PM2.5 NAAQS.
On January 24, 2011, WDNR confirmed that that all monitored values
of PM2.5 have been well below 140.4 [mu]g/m\3\ at all sites
in Wisconsin, and therefore Wisconsin is not specifically required to
submit an emergency episode plan and contingency measures for
PM2.5 at this time. WS chapter 285.85 provides the
requirement for WDNR to act upon a finding that episode or emergency
conditions exist. EPA concludes that Wisconsin has met the requirements
of section 110(a)(2)(G) with respect to the 1997 PM2.5
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, availability of improved
methods for attaining the NAAQS, or to an EPA finding that the SIP is
substantially inadequate.
As previously mentioned, 415 ILCS \5/4\ and 415 ILCS 5/10 provide
the Director of Illinois EPA, in conjunction with IPCB, with the
authority to develop rules and regulations necessary to meet ambient
air quality standards.
[[Page 23765]]
Furthermore, they have the authority to respond to any EPA findings of
inadequacy with the Illinois SIP program. EPA concludes that Illinois
has met the requirements of section 110(a)(2)(H) with respect to the
1997 ozone and PM2.5 NAAQS.
IDEM continues to update and implement needed revisions to
Indiana's SIP as necessary to meet ambient air quality standards. As
discussed in previous sections, authority to adopt emissions standards
and compliance schedules is found at IC 13-4-8, IC 13-17-3-4, IC 13-17-
3-11, and IC 13-17-3-14. EPA concludes that Indiana has met the
requirements of section 110(a)(2)(H) with respect to the 1997 ozone and
PM2.5 NAAQS.
Michigan Act 451 provides the authority to: promulgate rules to
establish standards for ambient air quality and emissions; issue, deny,
revoke, or reissue permits; make findings of fact and determinations;
make, modify, or cancel orders that require the control of air
pollution and/or permits rules and regulations necessary to meet NAAQS;
and prepare and develop a general comprehensive plan for the control or
abatement of existing air pollution and for control or prevention of
any new air pollution. EPA concludes that Michigan has met the
requirements of section 110(a)(2)(H) with respect to the 1997 ozone and
PM2.5 NAAQS.
Minnesota Statute chapter 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 concludes that Minnesota has met the
requirements of section 110(a)(2)(H) with respect to the 1997 ozone and
PM2.5 NAAQS.
ORC 3704.03 provides the Director of Ohio EPA with the authority to
develop rules and regulations necessary to meet ambient air quality
standards. EPA concludes that Ohio has met the requirements of section
110(a)(2)(H) with respect to the 1997 ozone and PM2.5 NAAQS.
WS chapter 285.11(6) provides WDNR with the authority to develop
all rules, limits, and regulations necessary to meet the NAAQS as they
evolve, and to respond to any EPA findings of inadequacy with the
overall Wisconsin SIP and air management programs. EPA concludes that
Wisconsin has met the requirements of section 110(a)(2)(H) with respect
to the 1997 ozone and PM2.5 NAAQS.
I. Section 110(a)(2)(I)--Nonattainment Area Plan or Plan Revisions
Under 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 takes action on part D
attainment plans through separate processes.
J. Section 110(a)(2)(J)--Consultation With Government Officials; Public
Notifications; Prevention of Significant Deterioration; Visibility
Protection
The evaluation of the Region 5 States' certifications addressing
the requirements of section 110(a)(2)(J) are described below.
Sub-Element 1: Consultation With Government Officials
States must provide a process for consultation with local
governments and Federal Land Managers (FLMs) carrying out NAAQS
implementation requirements. All States in EPA Region 5 consult with
appropriate governments, stakeholders, and FLM in their planning
efforts.
Illinois EPA is required to give notice to the Office of the
Attorney General and the Illinois Department of Natural Resources
during the rulemaking process. Furthermore, Illinois provides notice to
reasonably anticipated stakeholders and interested parties, as well as
to any FLM if the rulemaking applies to Federal land which the FLM has
authority over. Additionally, Illinois EPA participates in the Lake
Michigan Air Director's Consortium (LADCO), which consists of
collaboration with the States of Indiana, Wisconsin, Michigan, and
Ohio. Lastly, Illinois EPA participates in the Regional Haze Planning
Process through its membership in the Midwest Regional Planning
Organization. EPA concludes that Illinois has met the requirements of
this portion of section 110(a)(2)(J) with respect to the 1997 ozone and
PM2.5 NAAQS.
IDEM actively participates in the regional planning efforts that
include State rule developers, representatives from the FLMs, and other
affected stakeholders. Additionally, Indiana is an active member of
LADCO. EPA concludes that Indiana has met the requirements of this
portion of section 110(a)(2)(J) with respect to the 1997 ozone and
PM2.5 NAAQS.
MDEQ actively participates in planning efforts that include
stakeholders from local governments, the business community, and
community activist groups. MDEQ also routinely involves FLMs and Tribal
groups in Michigan SIP development. Michigan is also an active member
of LADCO. Therefore, EPA concludes that Michigan has met the
requirements of this portion of section 110(a)(2)(J) with respect to
the 1997 ozone and PM2.5 NAAQS.
MPCA actively participates in the Central Regional Air Planning
Association as well as the Central States Air Resource Agencies. MPCA
has also demonstrated that it frequently consults and discusses issues
with pertinent Tribes. Therefore, EPA concludes that Minnesota has met
the requirements of this portion of section 110(a)(2)(J) with respect
to the 1997 ozone and PM2.5 NAAQS.
Ohio EPA actively participates in the regional planning efforts
that include both the State rule developers as well as representatives
from the FLMs and other affected stakeholders. The FLMs are also
included in Ohio EPA's interested party lists which provide
announcements of draft and proposed rule packages. Additionally, Ohio
is an active member of LADCO. Therefore, EPA concludes that Ohio has
met the requirements of this portion of section 110(a)(2)(J) with
respect to the 1997 ozone and PM2.5 NAAQS.
WS chapter 285.13(5) contains the provisions for WDNR to advise,
consult, contract, and cooperate with other agencies of the State and
local governments, industries, other States, interstate or inter-local
agencies, the Federal government, and interested persons or groups
during the entire process of SIP revision development and
implementation and for other elements regarding air management for
which the agency is the officially charged agency. WDNR's Bureau of Air
Management has effectively used formal stakeholder structures in the
development and refinement of all SIP revisions. Additionally,
Wisconsin is an active member of LADCO. EPA concludes that Wisconsin
has satisfied the requirements of this portion of section 110(a)(2)(J)
with respect to the 1997 ozone and PM2.5 NAAQS.
Sub-Element 2: Public Notification
Section 110(a)(2)(J) also requires States to notify the public if
NAAQS are exceeded in an area and must enhance public awareness of
measures that can be taken to prevent exceedances.
Illinois EPA continues to collaborate with the Cook County
Department of Environmental Control. This consists of: continued and
routine monitoring of air
[[Page 23766]]
quality throughout the State, and notifying the public when unhealthy
air quality is measured or forecasted. Illinois EPA provides air
quality data to EPA's AIRNOW program, and also provides the daily air
quality index (AQI) to the media. Additionally, Illinois EPA provides
the AQI to local stakeholder groups including Partners for Clean Air in
Chicago and the Clean Air Partnership in St. Louis. Lastly, air quality
data, as well as measures that can be taken to prevent exceedances, are
made available on Illinois EPA's Web site. EPA concludes that Illinois
has met the requirements of this portion of section 110(a)(2)(J) with
respect to the 1997 ozone and PM2.5 NAAQS.
IDEM monitors air quality data daily, and reports the AQI to the
interested public and media if necessary. IDEM also participates and
submits information to EPA's AIRNOW program, and maintains SmogWatch,
which is an informational tool created by IDEM to share air quality
forecasts for each day. SmogWatch provides daily information about
ground-level ozone, particulate matter concentration levels, health
information, and monitoring data for seven regions in Indiana. EPA
concludes that Indiana has met the requirements of this portion of
section 110(a)(2)(J) with respect to the 1997 ozone and
PM2.5 NAAQS.
MDEQ actively participates in programs such as Ozone Action,
AIRNOW, and EnviroFlash. Additionally, MDEQ posts current air quality
concentrations on the its Web pages, and prepares an annual air quality
report. EPA concludes that Michigan has met the requirements of this
portion of section 110(a)(2)(J) with respect to the 1997 ozone and
PM2.5 NAAQS.
Minnesota consistently notifies the public when exceedances occur,
participates in the AIRNOW program, and dedicates portions of the MPCA
Web site to enhancing public awareness of measures that can be taken to
prevent exceedances. EPA concludes that Minnesota has met the
requirements of this portion of section 110(a)(2)(J) with respect to
the 1997 ozone and PM2.5 NAAQS.
Ohio EPA's district offices and local air agencies monitor air
quality daily, and where required, report the daily AQI to the
interested media. In addition, Ohio EPA's remote access of data system
provides online reports of real time air quality data on the Internet
and feeds raw information to EPA's AIRNOW program. Furthermore, Ohio
EPA actively involves local stakeholder groups in the AIRNOW forecast
program. EPA concludes that Ohio has met the requirements of this
portion of section 110(a)(2)(J) with respect to the 1997 ozone and
PM2.5 NAAQS.
In addition to maintaining an active monitoring network for
multiple criteria pollutants (with NAAQS), WDNR also routinely
forecasts air quality when elevated pollutant concentrations are noted.
Public notice is provided at levels associated with the extent of the
monitored problems ranging from a simple advisory to alert levels.
Wisconsin also participates in the AIRNOW program, and dedicates
portions of the WDNR Web site to enhancing public awareness of measures
that can be taken to prevent exceedances. EPA concludes that Wisconsin
has met the requirements of this portion of section 110(a)(2)(J) with
respect to the 1997 ozone and PM2.5 NAAQS.
Sub-Element 3: Prevention of Significant Deterioration
States must meet applicable requirements of section 110(a)(2)(C)
related to PSD. All six States in Region 5 have stated their commitment
to addressing both long-term requirements to meet natural visibility
levels by 2064 as well as concurrent review of new major sources and
major modifications under each State's approved PSD new source review
program. Each State's PSD program has already been discussed in the
paragraphs addressing section 110(a)(2)(C), and will not be addressed
in this section.
Sub-Element 4: Visibility Protection
With regard to the applicable requirements for visibility
protection, States are subject to visibility and regional haze program
requirements under part C of the CAA (which includes sections 169A and
169B). In the event of the establishment of a new NAAQS, however, the
visibility and regional haze program requirements under part C do not
change. Thus, we find that there is no new visibility obligation
``triggered'' under section 110(a)(2)(J) when a new NAAQS becomes
effective. This would be the case even in the event a secondary
PM2.5 NAAQS for visibility is established, because this
NAAQS would not affect visibility requirements under part C.
Michigan, Minnesota, Indiana, and Ohio have submitted such plans to
EPA on November 5, 2010, December 30, 2009, January 14, 2011, and March
11, 2011, respectively. EPA expects the other Region 5 States to submit
their plans in the coming months. EPA will conduct separate rulemakings
on regional haze plans as the States submit them; these rulemakings
will address each State's satisfaction of the visibility portion of
section 110(a)(2)(J). EPA is neither proposing to approve, nor
disapprove, the regional haze requirements of section 110(a)(2)(J) for
any of the Region 5 States in today's action.
K. Section 110(a)(2)(K)--Air Quality Modeling/Data
SIPs must provide for performing air quality modeling for
predicting effects on air quality of emissions from any NAAQS pollutant
and submission of such data to EPA upon request.
Illinois EPA maintains the capability to perform modeling of the
air quality impacts of emissions of all criteria pollutants, including
the capability to use complex photochemical grid models. This modeling
is used in support of the SIP for all nonattainment areas in the State.
Illinois EPA also requires air quality modeling in support of
permitting the construction of major and some minor new sources under
the PSD program. These modeling data are available to EPA as well as
the public upon request. Lastly, Illinois EPA participates in LADCO,
which conducts regional modeling that is used for statewide planning
purposes. EPA concludes that Illinois EPA has met the requirements of
section 110(a)(2)(K) with respect to the 1997 ozone and
PM2.5 NAAQS.
IDEM continues to review the potential impact of major and some
minor new sources using computer models. Indiana's rules regarding air
quality modeling are contained in 326 IAC 2-2-4, 326 IAC 2-2-5, 326 IAC
2-2-6, and 326 IAC 2-2-7. These modeling data are available to EPA or
other interested parties upon request. EPA concludes that Indiana has
met the requirements of section 110(a)(2)(K) with respect to the 1997
ozone and PM2.5 NAAQS.
MDEQ reviews the potential impact of major and some minor new
sources, consistent with 40 CFR part 51, Appendix W, ``Guidelines on
Air Quality Models.'' These modeling data are available to EPA upon
request. EPA concludes that Michigan has met the requirements of
section 110(a)(2)(K) with respect to the 1997 ozone and
PM2.5 NAAQS.
MPCA reviews the potential impact of major and some minor new
sources. Applicable major sources in Minnesota are required to perform
modeling to show that emissions do not cause or contribute to a
violation of any NAAQS. Furthermore, MPCA maintains the capability to
perform its own modeling. EPA concludes that Minnesota has met the
requirements of section 110(a)(2)(K)
[[Page 23767]]
with respect to the 1997 ozone and PM2.5 NAAQS.
Ohio EPA reviews the potential impact of major and some minor new
sources, consistent with 40 CFR part 51, Appendix W, ``Guidelines on
Air Quality Models,'' as well as Ohio EPA Engineering Guide 69. These
modeling data are available to EPA upon request. EPA concludes that
Ohio has met the requirements of section 110(a)(2)(K) with respect to
the 1997 ozone and PM2.5 NAAQS.
WDNR maintains the capability to perform computer modeling of the
air quality impacts of emissions of all criteria pollutants, including
both source-oriented and more regionally directed complex photochemical
grid models. WDNR collaborates with LADCO, EPA, and other Lake Michigan
States in order to perform modeling. EPA concludes that Wisconsin has
met the requirements of section 110(a)(2)(K) with respect to the 1997
ozone and PM2.5 NAAQS.
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.
Illinois EPA implements and operates the title V permit program,
which EPA approved on December 4, 2001 (66 FR 62946); therefore, EPA
concludes that Illinois has met the requirements of section
110(a)(2)(L).
IDEM implements and operates the title V permit program, which EPA
approved on December 4, 2001 (66 FR 62969); revisions to program were
approved on August 13, 2002 (67 FR 52615). EPA concludes that Indiana
has met the requirements of section 110(a)(2)(L).
MDEQ implements and operates the title V permit program, which EPA
approved on December 4, 2001 (66 FR 62949); revisions to the program
were approved on November 10, 2003 (68 FR 63735). EPA concludes that
Michigan has met the requirements of section 110(a)(2)(L).
MPCA implements and operates the title V permit program, which EPA
approved on December 4, 2001 (66 FR 62967); therefore, EPA concludes
that Minnesota has met the requirements of section 110(a)(2)(L).
Ohio EPA implements and operates the title V permit program, which
EPA approved on August 15, 1995 (60 FR 42045); revisions to the program
were approved on November 20, 2003 (68 FR 65401). EPA concludes that
Ohio has met the requirements of section 110(a)(2)(L).
Wisconsin DNR implements and operates the title V permit program,
which EPA approved on December 4, 2001 (66 FR 62951); revisions to the
program were approved on February 28, 2006 (71 FR 9934). EPA concludes
that Wisconsin has met the requirements of section 110(a)(2)(L).
EPA concludes that all Region 5 States have met the requirements of
section 110(a)(2)(L) with respect to the 1997 ozone and 1997
PM2.5 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.
All public participation procedures pertaining to Illinois EPA are
consistent with 35 Illinois Administrative Code Part 164 and Part 252.
Part 252 is an approved portion of Illinois' SIP. EPA concludes that
Illinois has met the requirements of section 110(a)(2)(M) with respect
to the 1997 ozone and PM2.5 NAAQS.
Any IDEM rulemaking procedure contained in IC 13-14-9 requires
public participation in the SIP development process. In addition, IDEM
ensures that the requirements of 40 CFR 51.102 are satisfied during the
SIP development process. EPA concludes that Indiana has met the
requirements of section 110(a)(2)(M) with respect to the 1997 ozone and
PM2.5 NAAQS.
In Michigan, memoranda of understanding regarding consultation or
participation in the SIP development process have been entered between
MDEQ and local political subdivisions. MDEQ also provides opportunity
for stakeholder workgroup participation in rule development processes.
EPA concludes that Michigan has met the requirements of section
110(a)(2)(M) with respect to the 1997 ozone and PM2.5 NAAQS.
Minnesota regularly consults with local political subdivisions
affected by the SIP, where applicable. EPA observes that Minnesota
Statute chapter 116.05 authorizes cooperation and agreement between
MPCA and other State and local governments. Additionally, the Minnesota
Administrative Procedures Act (Minnesota Statute chapter 14) provides
general notice and comment procedures that are followed during SIP
development. Lastly, MPCA regularly issues public notices on proposed
actions. EPA concludes that Minnesota has met the requirements of
section 110(a)(2)(M) with respect to the 1997 ozone and
PM2.5 NAAQS.
Ohio EPA follows approved procedures for allowing public
participation, consistent with OAC 3745-47, which is part of the
approved SIP. EPA concludes that Ohio has met the requirements of
section 110(a)(2)(M) with respect to the 1997 ozone and
PM2.5 NAAQS.
In addition to the measures outlined in the paragraph addressing
WDNR's submittal regarding consultation requirements of section
110(a)(2)(J), as contained in WS chapter 285.13(5), the State follows a
formal public hearing process in the development and adoption of all
SIP revisions that entail new or revised control programs or strategies
and targets. EPA concludes that Wisconsin has met the requirements of
section 110(a)(2)(M) with respect to the 1997 ozone and
PM2.5 NAAQS.
V. What action is EPA taking?
EPA is proposing to approve some elements and conditionally approve
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 1997
8-hour ground-level ozone NAAQS and PM2.5 NAAQS.
Specifically, these are EPA's proposed actions, by element of
section 110(a)(2):
----------------------------------------------------------------------------------------------------------------
Element IL IN OH MI MN WI
----------------------------------------------------------------------------------------------------------------
A: Emission limits and other A A A A A A
control measures.
B: Ambient air quality A A A A A A
monitoring and data system.
C1: Enforcement of SIP measures. A A A A A A
C2: NOX as a precursor to ozone * A A A * A
in PSD regulations.
C3: PM10 surrogate policy in PSD * CA CA CA * A
regulations.
C4: NSR reform.................. NA NA NA NA NA NA
C5: GHG permitting in PSD * A A A * A
regulations.
C6: Minor NSR regulations....... A A A A A A
D(i): Interstate transport...... NA NA NA NA NA NA
D(ii): Interstate and A A A A A A
international pollution
abatement.
[[Page 23768]]
E: Adequate resources........... A A A A A A
F: Stationary source monitoring A A A A A A
system.
G: Emergency power.............. A A A A A A
H: Future SIP revisions......... A A A A A A
I: Nonattainment area plan or NA NA NA NA NA NA
plan revisions under part D.
J1: Consultation with government A A A A A A
officials.
J2: Public notification......... A A A A A A
J3: PSD......................... ** ** ** ** ** **
J4: Visibility protection NA NA NA NA NA NA
(Regional Haze).
K: Air quality modeling and data A A A A A A
L: Permitting fees.............. A A A A A A
M: Consultation and A A A A A A
participation by affected local
entities.
----------------------------------------------------------------------------------------------------------------
In the above table, the key is as follows:
------------------------------------------------------------------------
------------------------------------------------------------------------
A......................................... Approve.
CA........................................ Conditionally Approve.
NA........................................ No Action/Separate
Rulemaking.
*......................................... Federally promulgated rules
in place.
**........................................ Previously discussed in
element (C).
------------------------------------------------------------------------
VI. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve State choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves State law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by State
law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have Tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the State, and EPA notes that it will not impose substantial direct
costs on Tribal governments or preempt Tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Ozone, Particulate matter, Reporting and recordkeeping
requirements.
Dated: April 19, 2011.
Susan Hedman,
Regional Administrator, Region 5.
[FR Doc. 2011-10331 Filed 4-27-11; 8:45 am]
BILLING CODE 6560-50-P