[Federal Register Volume 60, Number 176 (Tuesday, September 12, 1995)]
[Rules and Regulations]
[Pages 47290-47292]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-22149]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[WY2-1-7126; FRL-5279-5]


Approval and Promulgation of State Implementation Plans; Wyoming; 
Revision to Section 3 Particulates

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: In this action, EPA is approving a revision of the Wyoming 
State Implementation Plan (SIP) submitted by the Governor of Wyoming on 
September 6, 1988. Specifically, a revision was made to the definition 
of ``ambient air'' in Section 3, Particulates, of the Wyoming Air 
Quality Standards and Regulations (WAQSR). The action makes the revised 
definition part of the Federally approved SIP.

EFFECTIVE DATE: This final rule is effective on October 12, 1995.

ADDRESSES: Copies of the documents relative to this action are 
available for public inspection during normal business hours at the 
following locations: Environmental Protection Agency, Region VIII, Air 
Programs Branch, 999 18th Street, Denver, Colorado 80202-2466; the Air 
Quality Division, Wyoming Department of Environmental Quality, 
Herschler Building, 4th Floor, 122 West 25th Street, Cheyenne, Wyoming 
82002; and the Air and Radiation Docket and Information Center, 401 M 
Street SW., Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: Vicki Stamper, Environmental 
Protection Agency, Region VIII, Air Programs Branch, 999 18th Street, 
Suite 500, Denver, Colorado 80202-2466, (303) 293-1765.

SUPPLEMENTARY INFORMATION:

I. Overview

    On August 26, 1992, EPA proposed to approve a revision to Section 
3, Particulates, of the WAQSR, which was submitted for approval in the 
SIP on September 6, 1988. The revision to Section 3, which added 
subsection (d), defined ``ambient air'' for surface coal mines located 
in Wyoming's Powder River Basin (PRB). The details of the original 
proposed rule can be found at 57 FR 38641-38650.
    After publication of the original proposed action, EPA reevaluated 
the need to conduct the 30-year ``life-of-mine'' modeling as outlined 
in the proposed action. As a result, a Memorandum of Agreement (MOA) 
was written between Dennis Hemmer, Director of the Wyoming Department 
of Environmental Quality (DEQ) and Patricia D. Hull, Director of the 
Air, Radiation and Toxics Division in EPA Region VIII, describing 
procedures to be followed by the State of Wyoming and EPA in protecting 
the PM10 National Ambient Air Quality Standards (NAAQS) in the 
Powder River Basin. The approach outlined in the MOA is based upon 
continued ambient air quality monitoring, rather than implementation of 
the 30-year life-of-mine modeling study. A detailed discussion of the 
MOA is provided below. Since EPA changed the basis for approving the 
revisions to the State's definition of ambient air, EPA re-proposed 
approval of these revisions on June 23, 1994 (see 59 FR 32395-32397).

II. Memorandum of Agreement

A. Compliance

    The signed MOA between EPA and DEQ was submitted to the DEQ on 
January 24, 1994. A review of the PM10 ambient monitoring data 
from the Powder River Basin, as well as the actions by the DEQ and the 
Wyoming coal companies to maintain an adequate ambient monitoring 
network, support EPA's view that these actions have proven successful 
in maintaining the PM10 NAAQS in the region. Other factors that 
were taken into account include: (1) The fact that the DEQ included in 
each PRB mining permit explicit requirements to implement best 

[[Page 47291]]
available work practices (BAWP); (2) that the DEQ is using necessary 
enforcement to ensure that BAWP are being and will continue to be 
implemented; and (3) that the probability of future PM10 NAAQS 
violations in the area is small.
    For these reasons, EPA believes it is appropriate to continue 
ambient monitoring in place of a 30-year life-of-mine study, provided 
there are no violations of the PM10 NAAQS. The ambient monitoring 
network submitted to EPA in June 1992, remains in effect. If a 
PM10 exceedance is monitored, then one of the following two 
procedures would become effective:
    1. In the event of an exceedance of the PM10 NAAQS or 
Prevention of Significant Deterioration (PSD) increments in the Powder 
River Basin, the State must expeditiously use all necessary compliance 
tools, including enforcement of BAWP requirements in the State permits, 
to eliminate the likelihood of future exceedances of the PM10 
NAAQS or PSD increments caused by the contributing source(s).
    2. If, in the opinion of EPA, the State does not initiate timely 
and appropriate action to address these exceedances, or if timely State 
action does not effectively resolve the issue of exceedances (i.e., if 
a violation of the PM10 NAAQS occurs following the timely and 
successful completion of any corrective action required by the State), 
EPA will reevaluate the need for the State to implement a 30-year life-
of-mine study.

B. Conditions Agreed to in the MOA by the State of Wyoming

    By signing the MOA, the State of Wyoming agreed to:
    1. Conduct ambient air monitoring, including overseeing the mines' 
ambient monitoring networks, entering the data into the Aerometric 
Information and Retrieval System (AIRS) database, ensuring attainment 
of the primary and secondary NAAQS for PM10 based upon 40 CFR 
50.6, requiring the minimum frequency of sampling for PM10 based 
on 40 CFR 58.13, and basing violations upon the calculation in 40 CFR, 
part 50, appendix K.
    2. Provide EPA with a summary of BAWP for each mine, verification 
that the mines are employing BAWP, and a copy of the Wyoming State 
regulation which provides the State with the authority to enforce BAWP.
    On December 2, 1993 the State of Wyoming DEQ submitted copies of 
the regulations requested: the authority to require and enforce BAWP 
through State regulation is contained in Section 35-11-801(a) of the 
Wyoming Statutes Ann. (W.S.A.), and Section 21(c)(v) of the WAQSR 
addresses Best Available Control Technology measures for mining 
operations.
    3. Provide EPA with a written opinion from the State's Attorney 
General that the State has the authority to take enforcement action 
against mines based upon violations of the PM10 NAAQS.
    A letter from the Wyoming Attorney General's office set forth the 
enforcement authority of the State of Wyoming, as required by the MOA. 
The letter referred to the general enforcement provision of Section 35-
11-201, W.S.A., and to Section 3(a) of the WAQSR, which establishes the 
ambient standards for particulate matter and includes the calculation 
used for demonstration of attainment from 40 CFR part 50, appendix K. 
The submittal also included a reference to Section 35-11-701, W.S.A., 
which allows the Director of the DEQ to issue a Notice of Violation; a 
reference to Section 35-11-901(a), W.S.A., which provides for civil 
penalties and injunctive relief against ``any person who violates * * * 
any regulation [or] standard;'' and a reference to Section 35-11-
901(j), W.S.A., which discusses criminal penalties.

C. PSD Increments

    The issue of particulate matter increment consumption was 
temporarily resolved by the establishment of a new Powder River Basin 
section 107 area. (See 58 FR 4348, January 14, 1993.) This designation 
effectively ``untriggered'' the minor source baseline date in the 
Powder River Basin particulate matter attainment area and, thus, 
emissions from coal mines and other minor sources were no longer 
consuming particulate matter increment.
    Since that time, a complete PSD permit application was received for 
the Kennecott/Puron facility in the PRB, which would effectively 
trigger the minor source baseline date in the PRB. However, the State 
requested on December 19, 1994 that the impact area of this PSD source 
be designated as a separate section 107 area so that the minor source 
baseline date would only be triggered in the 1 g/m3 
impact area of the Kennecott/Puron facility. Such a request is allowed 
under the Federal PSD rules as long as the area to be excluded from the 
Powder River Basin particulate matter attainment area encompasses the 
entire 1 g/m3 ambient impact of the Kennecott/Puron 
facility. In a separate rule in this Federal Register, EPA is approving 
the State's December 19, 1994 request and is redesignating the Powder 
River Basin particulate matter attainment area to exclude the 
Kennecott/Puron PSD Baseline area, which is being designated as a 
separate particulate matter attainment area. Thus, EPA's action will 
``untrigger'' the particulate matter minor source baseline date in the 
remaining Powder River Basin particulate matter attainment area. Refer 
to that direct final rule elsewhere in this Federal Register for 
further details.
    Dispersion modeling of coal mines for tracking PSD increment may be 
required at some time in the future, if a new or modified major 
stationary source again triggers the minor source baseline date in the 
Powder River Basin or by January 1, 2001 (as currently provided in the 
State's definition of ``minor source baseline date''), whichever occurs 
first.

Final Action

    As discussed above, EPA re-proposed action on the revision to the 
definition of ``ambient air'' in Section 3(d) of the WAQSR on June 23, 
1994, and no comments were received on that proposed SIP approval. 
Therefore, EPA is finalizing its approval of Section 3(d) of the WAQSR 
and is incorporating the revised definition into the approved SIP for 
Wyoming.
    The Agency has reviewed this request for revision of the Federally-
approved SIP for conformance with the provisions of the Amendments 
enacted on November 15, 1990, and has determined that this action 
conforms with those requirements.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any SIP. Each request for revision to a SIP shall be 
considered separately in light of specific technical, economic, and 
environmental factors and in relation to relevant statutory and 
regulatory requirements.
    Under the Regulatory Flexibility Act, 5 U.S.C. 600, et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small not-for-profit 
enterprises, and government entities with jurisdiction over populations 
of less than 50,000.
    Approvals of SIP submittals under section 110 and subchapter I, 
part D of the Clean Air Act do not create any new requirements, but 
simply approve requirements that the State is already imposing. 
Therefore, because the Federal SIP-approval does not impose any new 
requirements, I certify that it 

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does not have a significant impact on small entities affected. 
Moreover, due to the nature of the Federal-state relationship under the 
Clean Air Act, preparation of a regulatory flexibility analysis would 
constitute Federal inquiry into the economic reasonableness of state 
action. The Clean Air Act forbids EPA to base its actions concerning 
SIPs on such grounds. Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 
256-66 (1976); 42 U.S.C. 7410(a)(2).
    Under Sections 202, 203, and 205 of the Unfunded Mandates Reform 
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 
1995, EPA must undertake various actions in association with proposed 
or final rules that include a Federal mandate that may result in 
estimated costs of $100 million or more to the private sector, or to 
State, local, or tribal governments in the aggregate.
    Through submission of this state implementation plan or plan 
revision, the State and any affected local or tribal governments have 
elected to adopt the program provided for under Section 110 of the 
Clean Air Act. These rules may bind State, local and tribal governments 
to perform certain actions and also require the private sector to 
perform certain duties. The rules being approved by this action will 
impose no new requirements; such sources are already subject to these 
regulations under State law. Accordingly, no additional costs to State, 
local, or tribal governments, or to the private sector, result from 
this action. EPA has also determined that this final action does not 
include a mandate that may result in estimated costs of $100 million or 
more to State, local, or tribal governments in the aggregate or to the 
private sector.
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by November 13, 1995. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review must be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements (see section 307(b)(2)).
    The Office of Management and Budget (OMB) has exempted this 
regulatory action from E.O. 12866 review.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernment 
relations, Particulate matter, Reporting and recordkeeping 
requirements.

    Dated: August 10, 1995.
Jack W. McGraw,
Acting Regional Administrator.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

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

Subpart ZZ--Wyoming

    2. Section 52.2620 is amended by adding paragraph (c)(22) to read 
as follows:


Sec. 52.2620  Identification of plan.

* * * * *
    (c) * * *
    (22) On September 6, 1988, the Governor of Wyoming submitted 
revisions to Section 3 of the Wyoming Air Quality Standards and 
Regulations, adding subsection (d) which defines ``ambient air'' for 
surface coal mines located in Wyoming's Powder River Basin.
    (i) Incorporation by reference.
    (A) Revisions to Section 3(d) of the Wyoming Air Quality Standards 
and Regulations, effective June 5, 1987.
    (ii) Additional material.
    (A) Memorandum of Agreement signed on December 22, 1993 by Dennis 
Hemmer, Director, Department of Environmental Quality, State of 
Wyoming, and on January 24, 1994 by Patricia D. Hull, Director, Air, 
Radiation and Toxics Division, EPA Region VIII.

[FR Doc. 95-22149 Filed 9-11-95; 8:45 am]
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