[Federal Register Volume 59, Number 184 (Friday, September 23, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-23599]


[[Page Unknown]]

[Federal Register: September 23, 1994]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[WY-001a; FRL-5076-2]

 

Clean Air Act Interim Approval of Operating Permit Program; State 
of Wyoming

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is promulgating interim approval of the Operating 
Permit Program submitted by the State of Wyoming. Wyoming's Operating 
Permit Program was submitted for the purpose of complying with Federal 
requirements which mandate that states develop, and submit to EPA, 
programs for issuing operating permits to all major stationary sources, 
and to certain other sources.
DATES: This direct final rule is effective on November 22, 1994 unless 
adverse or critical comments are received by October 24, 1994. If the 
effective date is delayed, timely notice will be published in the 
Federal Register.

ADDRESSES: Comments should be addressed to Laura Farris, 8ART-AP, at 
the EPA Regional 8 Office listed.
    Copies of the State's submittal and other supporting information 
used in developing this final rule are available for public inspection 
during normal business hours at the following location: U.S. 
Environmental Protection Agency, Region 8, 999 18th Street, suite 500, 
Denver, Colorado 80202.

FOR FURTHER INFORMATION CONTACT: Laura Farris, 8ART-AP, U.S. 
Environmental Protection Agency, Region 8, 999 18th Street, suite 500, 
Denver, Colorado 80202, (303) 294-7539.

SUPPLEMENTARY INFORMATION:

I. Background

    As required under title V of the Clean Air Act (``the Act'') as 
amended (1990), EPA has promulgated rules which define the minimum 
elements of an approvable state operating permit program and the 
corresponding standards and procedures by which the EPA will approve, 
oversee, and withdraw approval of state operating permit programs (see 
57 FR 32250 (July 21, 1992)). These rules are codified at 40 Code of 
Federal Regulations (CFR) part 70 (part 70). title V requires states to 
develop, and submit to EPA, programs for issuing these operating 
permits to all major stationary sources and to certain other sources.
    The Act requires that states develop and submit these programs to 
EPA by November 15, 1993, and that EPA act to approve or disapprove 
each program within 1 year after receiving the submittal. The EPA's 
program review occurs pursuant to section 502 of the Act and the part 
70 regulations, which together outline criteria for approval or 
disapproval. Where a program substantially, but not fully, meets the 
requirements of part 70, EPA may grant the program interim approval for 
a period of up to 2 years. If EPA has not fully approved a program by 2 
years after the November 15, 1993 date, or by the end of an interim 
program, it must establish and implement a Federal program.
    The EPA is publishing this action without prior proposal because 
the Agency views this as a noncontroversial action and anticipates no 
adverse comments. However, in a separate document in this Federal 
Register publication, the EPA is proposing interim approval of the 
Operating Permit Program submitted by the State of Wyoming should 
adverse or critical comments be filed. Under the procedures established 
in the May 10, 1994 Federal Register, this action will be effective on 
November 22, 1994 unless, by October 24, 1994, adverse or critical 
comments are received.
    If the EPA receives such comments, this action will be withdrawn 
before the effective date by publishing a subsequent document that will 
withdraw the final action. All public comments received will then be 
addressed in a subsequent final rule based on this action serving as a 
proposed rule. The EPA will not institute a second comment period. Any 
parties interested in commenting on this action should do so at this 
time. If no such comments are received, the public is advised that this 
action will be effective on November 22, 1994.

II. Final Action and Implications

A. Analysis of State Submission

1. Support Materials
    The Governor of Wyoming submitted an administratively complete 
title V Operating Permit Program (PROGRAM) for the State of Wyoming on 
November 19, 1993. EPA deemed the PROGRAM administratively complete in 
a letter to the Governor dated January 4, 1994. The PROGRAM submittal 
includes a legal opinion from the Attorney General of Wyoming stating 
that the laws of the State provide adequate legal authority to carry 
out all aspects of the PROGRAM, and a description of how the State 
intends to implement the PROGRAM. The submittal additionally contains 
evidence of proper adoption of the PROGRAM regulations, application and 
permit forms, and a permit fee demonstration.
2. Regulations and Program Implementation
    The Wyoming PROGRAM, including the operating permit regulation 
(Section 30 of the Wyoming Air Quality Standards and Regulations), 
substantially meets the requirements of 40 CFR 70.2 and 70.3 with 
respect to applicability; 40 CFR 70.4, 70.5, and 70.6 with respect to 
permit content including operational flexibility; 40 CFR 70.5 with 
respect to complete application forms and criteria which define 
insignificant activities (emission thresholds are identified in section 
30 as one ton per year for regulated pollutants, excluding hazardous 
air pollutant [HAP] sources, and 1000 pounds per year for HAPs); 40 CFR 
70.7 with respect to public participation and minor permit 
modifications; and 40 CFR 70.11 with respect to requirements for 
enforcement authority.
    Wyoming has the authority to issue a variance from requirements 
imposed by State law (36-11-601 W.S.A.). The EPA regards this provision 
as wholly external to the PROGRAM submitted for approval under part 70, 
and consequently is proposing to take no action on this provision of 
State law. The EPA has no authority to approve provisions of State law, 
such as the variance provision referred to, which are inconsistent with 
the Act. The EPA does not recognize the ability of a permitting 
authority to grant relief from the duty to comply with a federally 
enforceable part 70 permit, except where such relief is granted through 
procedures allowed by part 70. The EPA reserves the right to enforce 
the terms of the part 70 permit where the permitting authority purports 
to grant relief from the duty to comply with a part 70 permit in a 
manner inconsistent with part 70 procedures.
    Part 70 of the operating permit regulations requires prompt 
reporting of deviations from the permit requirements. Section 
70.6(a)(3)(iii)(B) requires the permitting authority to define prompt 
in relation to the degree and type of deviation likely to occur and the 
applicable requirements. Although the permit program regulations should 
define prompt for purposes of administrative efficiency and clarity, an 
acceptable alternative is to define prompt in each individual permit. 
The EPA believes that prompt should generally be defined as requiring 
reporting within two to ten days of the deviation. Two to ten days is 
sufficient time in most cases to protect public health and safety as 
well as to provide a forewarning of potential problems. For sources 
with a low level of excess emissions, a longer time period may be 
acceptable. However, prompt reporting must be more frequent than the 
semiannual reporting requirement, given this is a distinct reporting 
obligation under Sec. 70.6(a)(3)(iii)(A). Where ``prompt'' is defined 
in the individual permit but not in the program regulations, EPA may 
veto permits that do not contain sufficiently prompt reporting of 
deviations. The Wyoming PROGRAM has not defined prompt reporting of 
deviations.
    A letter sent to the State dated May 10, 1994, identified areas in 
which the Wyoming PROGRAM was deficient and the corrective actions that 
were to be completed either prior to interim PROGRAM approval or prior 
to full PROGRAM approval. In a letter dated June 7, 1994, which 
included an Attorney General's opinion dated June 6, 1994, the State 
addressed all EPA issues that would have prevented EPA from issuing 
interim approval of the Wyoming PROGRAM.
    The State has not addressed those issues that require corrective 
action prior to full PROGRAM approval. Areas in which the Wyoming 
PROGRAM is deficient and require corrective action prior to full 
PROGRAM approval are as follows: (1) Section 30 states that research 
and development (R&D) operations will be considered as separate and 
discrete stationary sources when determining whether such operations 
are subject to the PROGRAM. If an R&D facility is a support facility 
(co-located with a separate source, under common ownership or control 
and 50% of the output of the support unit is used by the main 
activity), the emissions from this R&D facility must be included, along 
with all other emissions at the source, to determine applicability to 
section 30. Section 30 must be revised to assure R&D support facilities 
are included in major source determinations. (2) Language in the 
Wyoming Environmental Quality Act (WEQA) appears to reduce the penalty 
for civil violations committed by surface coal mine operations from a 
maximum of ten thousand dollars per day to five thousand dollars per 
day. This language needs to be changed in the WEQA or clarified in an 
Attorney General's opinion to indicate that the five thousand dollar 
penalty relates only to activities subject to the Surface Mining 
Control and Reclamation Act. (3) The WEQA bases individual and 
corporate liability on knowing and willful violations of the WEQA. This 
statute needs to be revised to include language that provides strict 
liability for corporate officers, directors or agents in civil actions. 
(4) The WEQA does not provide for a per day, per violation penalty for 
false statements or tampering with monitoring devices, only a fine of 
ten thousand dollars or imprisonment for one year in county jail, or 
both. The statute needs to be changed to include a per day, per 
violation penalty. (5) Section 30 requires insignificant activities to 
be listed in permit applications, but does not require that applicable 
requirements that might apply to such activities be identified. The 
general provision of 40 CFR 70.5(c) ensures that information concerning 
applicable requirements will be included in the application. Section 30 
must be revised to include language similar to the general provision in 
40 CFR 70.5(c), or an AG's opinion must clarify that the State will 
ensure that all applicable requirements are identified for any 
insignificant activities. (6) The provision in section 30 regarding 
general permits is inconsistent with Sec. 70.6(d) because they do not 
require notice and an opportunity for public participation consistent 
with Sec. 70.7(h). This provision must be revised or clarified in an 
Attorney General's Opinion. (7) It is unclear if section 30 provides 
the State with authority to implement emissions trading under a permit 
cap, which is required by Sec. 70.4(b)(12)(iii). The State must clarify 
its authority on this issue, or revise section 30 to provide such 
authority. (8) The Governor's letter submitting the Wyoming PROGRAM 
states that the PROGRAM will apply to all applicable operating 
stationary sources of air pollutants within the State of Wyoming ``with 
the exception of those sources located on Indian lands.'' However, the 
PROGRAM does not define ``Indian lands.'' The State must provide such a 
definition prior to full PROGRAM approval.
    Refer to the technical support document accompanying this 
rulemaking for a detailed explanation of each PROGRAM deficiency and 
the State's corrective actions, where provided.
3. Permit Fee Demonstration
    The State of Wyoming established an initial fee for regulated air 
pollutants below the presumptive minimum set in title V, section 502 
and part 70, and was required to submit a detailed permit fee 
demonstration as part of its PROGRAM submittal. The basis of this fee 
demonstration included a workload analysis, which estimated the annual 
cost of running the PROGRAM to be $1.43 million. This amount, divided 
by the total actual emissions from part 70 sources, resulted in a $10 
per ton fee for actual emissions of regulated air pollutants for fiscal 
year 1993 (fees will not be charged on emissions exceeding 4,000 tons 
per year per pollutant at a source). This fee structure is subject to a 
biennial review by the Wyoming Joint Minerals, Business and Economic 
Development Committee. After careful review, the State of Wyoming 
determined that these fees would support the PROGRAM costs as required 
by 40 CFR 70.9(a). Upon review of this demonstration, the EPA noted the 
following concern: The WEQA gives the State the authority to assess and 
collect annual permit fees in an amount sufficient to cover all 
reasonable direct and indirect costs of the PROGRAM for a two year 
period of time. The Wyoming Legislature must authorize an increase in 
such fees. If such an increase is not granted, and the State is not 
able to fund all the costs of the PROGRAM, the EPA would be required to 
disapprove or withdraw the part 70 program, impose sanctions, and 
implement a Federal permitting program.
4. Provisions Implementing the Requirements of Other Titles of the Act
    a. Authority and/or Commitments for section 112 Implementation. 
Wyoming has demonstrated in its PROGRAM submittal adequate legal 
authority to implement and enforce all section 112 requirements through 
the title V permit. This legal authority is contained in Wyoming's WEQA 
and in regulatory provisions defining ``applicable requirements'' by 
stating that the permit must incorporate all applicable requirements. 
EPA has determined that this legal authority is sufficient to allow 
Wyoming to issue permits that assure compliance with all section 112 
requirements.
    For further rationale on this interpretation, please refer to the 
Technical Support Document accompanying this rulemaking and the April 
13, 1993 guidance memorandum titled ``Title V Program Approval Criteria 
for Section 112 Activities,'' signed by John Seitz.
    b. Implementation of 112(g) Upon Program Approval. As a condition 
of approval of the part 70 PROGRAM, Wyoming is required to implement 
section 112(g) of the Act from the effective date of the part 70 
PROGRAM. Imposition of case-by-case determinations of a maximum 
achievable control technology (MACT) under section 112(g) will require 
the use of a mechanism for establishing federally enforceable 
restrictions on a source-specific basis. The EPA is proposing to 
approve Wyoming's preconstruction permitting program found in section 
24, under the authority of title V and part 70 solely for the purpose 
of implementing section 112(g) during the transition period between 
title V approval and adoption of a State rule implementing EPA's 
section 112(g) regulations. EPA believes this approval is necessary so 
that Wyoming has a mechanism in place to establish federally 
enforceable restrictions for section 112(g) purposes from the date of 
part 70 approval. Section 112(l) provides statutory authority for 
approval for the use of State air programs to implement section 112(g), 
and title V and section 112(g) provide authority for this limited 
approval because of the direct linkage between implementation of 
section 112(g) and title V. The scope of this approval is narrowly 
limited to section 112(g), and does not confer or imply approval for 
purposes of any other provision under the Act. If Wyoming does not wish 
to implement section 112(g) through its preconstruction permit program 
and can demonstrate that an alternative means of implementing section 
112(g) exists, the EPA may, in the final action approving Wyoming's 
PROGRAM, approve the alternative instead. To the extent the State does 
not have the authority to regulate HAPs through existing State law, the 
State may disallow modifications during the transition period.
    This approval is for an interim period only, until such time as the 
State is able to adopt regulations consistent with any regulations 
promulgated by EPA to implement section 112(g). Accordingly, EPA is 
proposing to limit the duration of this approval to a reasonable time 
following promulgation of section 112(g) regulations so that Wyoming, 
acting expeditiously, will be able to adopt regulations consistent with 
the section 112(g) regulations. The EPA is proposing here to limit the 
duration of this approval to 18 months following promulgation by EPA of 
section 112(g) regulations. Comment is solicited on whether 18 months 
is an appropriate period considering Wyoming's procedures for adoption 
of Federal regulations.
    c. Program for Straight Delegation of section 112 Standards. 
Requirements for approval, specified in 40 CFR 70.4(b), encompass 
section 112(l)(5) requirements for approval of a program for delegation 
of section 112 general provisions subpart A and standards as 
promulgated by EPA as they apply to part 70 sources. Section 112(l)(5) 
requires that the State's program contain adequate authorities, 
adequate resources for implementation, and an expeditious compliance 
schedule, which are also requirements under part 70. The State of 
Wyoming acknowledges that its request for approval of a part 70 program 
is also a request for approval of a program for delegation of unchanged 
existing and future section 112 requirements under the authority of 
section 112(l) as they apply to part 70 sources. This shall include the 
most recent versions of any existing standards and all future 
requirements promulgated under section 112, including the general 
provisions for part 63 and all other infrastructure rules. The State 
can now receive delegation of any new authority required by section 112 
of the Act through the delegation process.
    The radionuclide national emission standard for HAPs (NESHAP) is a 
section 112 regulation and therefore, also an applicable requirement 
under the State PROGRAM. Sources which are currently defined as part 70 
sources and emit radionuclides are subject to Federal radionuclide 
standards. Currently the State of Wyoming has no such sources. However, 
sources which are not currently part 70 sources may be defined as major 
sources under forthcoming Federal radionuclide regulations. The EPA 
will work with the State in the development of its radionuclide program 
to ensure that permits are issued in a timely manner.
    The State also has the option at any time to request, under section 
112(l) of the Act, delegation of section 112 requirements in the form 
of State regulations which the State demonstrates are equivalent to the 
corresponding section 112 provisions promulgated by EPA. At this time, 
the State plans to use the mechanism of case-by-case rulemaking to 
adopt unchanged Federal section 112 requirements into its regulations.
    Therefore, the EPA is also proposing to grant approval under 
section 112(l)(5) and 40 CFR 63.91 of the State's program for receiving 
delegation of section 112 standards that are unchanged from the Federal 
standards as promulgated.
    d. Program for Implementing Title IV of the Act. Wyoming's PROGRAM 
contains adequate authority to issue permits which reflect the 
requirements of title IV of the Act, and commits to adopt the rules and 
requirements promulgated by EPA to implement an acid rain program 
through the title V permit.

B. Options for Approval/Disapproval and Implications

    The EPA is promulgating interim approval to the operating permit 
program submitted by the State of Wyoming on November 19, 1993. The 
State must make the changes discussed above to receive full approval. 
Evidence of these statutory and regulatory revisions must be submitted 
to EPA within 18 months of EPA's interim approval of the Wyoming 
PROGRAM.
    At the time of this document, the State had not made an affirmative 
showing of legal authority to regulate sources within the exterior 
boundaries of Indian Reservations in Wyoming under the Act. Therefore, 
interim approval of the Wyoming PROGRAM will not extend to lands within 
the exterior boundaries of Indian Reservations. Until the State makes 
such a showing, part 70 sources within the exterior boundaries of 
Indian Reservations in Wyoming will be subject to the Federal operating 
permit program to be promulgated in 40 CFR part 71, or subject to the 
program of any Tribe delegated such authority under section 301(d) of 
the Act. The EPA anticipates promulgating an Indian Air Regulation, at 
which time how the State defines Indian lands could become an approval 
issue.
    This interim approval, which may not be renewed, extends for a 
period of up to two years. During the interim approval period, the 
State is protected from sanctions for failure to have a program, and 
EPA is not obligated to promulgate a Federal permit program in the 
State. Permits issued under a program with interim approval have full 
standing with respect to part 70, and the one year time period for 
submittal of permit applications by subject sources begins upon interim 
approval, as does the three year time period for processing the initial 
permit applications.
    Requirements for approval, specified in 40 CFR 70.4(b), encompass 
section 112(l)(5) requirements for approval of a program for delegation 
of section 112 standards as promulgated by EPA as they apply to part 70 
sources. Section 112(l)(5) requires that the State's program contain 
adequate authorities, adequate resources for implementation, and an 
expeditious compliance schedule, which are also requirements under part 
70. Therefore, the EPA is also proposing to grant approval under 
section 112(l)(5) and 40 CFR 63.91 of the State's program for receiving 
delegation of section 112 standards that are unchanged from Federal 
standards as promulgated. This program for delegations only applies to 
sources covered by the part 70 program.

III. Administrative Requirements

A. Request for Public Comments

    The EPA is requesting comments on all aspects of this direct final 
rule. Copies of the State's submittal and other information relied upon 
for the development of this rule are contained in a docket maintained 
at the EPA Regional Office. The docket is an organized and complete 
file of all the information submitted to, or otherwise considered by, 
EPA in the review of the PROGRAM and development of this rule. The 
principal purposes of the docket are:

    (1) To allow interested parties a means to identify and locate 
documents so that they can effectively participate in the rulemaking 
process; and
    (2) To serve as the record in case of judicial review. The EPA will 
consider any comments received by October 24, 1994.

B. Executive Order 12866

    The Office of Management and Budget has exempted this action from 
Executive Order 12866 review.

C. Regulatory Flexibility Act

    The EPA's actions under section 502 of the Act do not create any 
new requirements, but simply address operating permit programs 
submitted to satisfy the requirements of 40 CFR part 70. Because this 
action does not impose any new requirements, it does not have a 
significant impact on a substantial number of small entities.

List of Subjects in 40 CFR Part 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Operating permits, 
Reporting and recordkeeping requirements.

    Authority: 42 U.S.C. 7401-7671q.

    Dated: September 14, 1994.
Kerrigan Clough,
Acting Regional Administrator.
[FR Doc. 94-23599 Filed 9-22-94; 8:45 am]
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