[Federal Register Volume 67, Number 25 (Wednesday, February 6, 2002)]
[Rules and Regulations]
[Pages 5485-5490]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-2706]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[WY-001-0007a, WY-001-0008a, WY-001-0009a; FRL-7130-3]


Clean Air Act Approval and Promulgation of State Implementation 
Plan; Wyoming; Revisions to Air Pollution Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: The EPA is taking direct final action partially approving and 
partially disapproving revisions to the State Implementation Plan (SIP) 
submitted by the designee of the Governor of Wyoming on August 9, 2000; 
August 7, 2001; and August 13, 2001. These revisions are intended to 
restructure and modify the State's air quality rules so that they will 
allow for more organized expansion and revision and are up to date with 
Federal requirements. The August 9, 2000 revisions include a complete 
restructuring of the Wyoming Air Quality Standards and Regulations 
(WAQSR) from a single chapter into thirteen separate chapters. In 
addition to restructuring the regulations, the State's August 9, 2000 
revisions also update the definition in Chapter 3, Section 6 Volatile 
organic compounds (previously Chapter 1, Section 9) and include 
revisions to Chapter 6, Section 4 Prevention of significant 
deterioration (PSD) (previously Chapter 1, Section 24). The August 7, 
2001 revisions include the addition of a credible evidence provision 
and another update to the definition of VOC. The August 13, 2001 
revisions include changes to the State's particulate matter 
regulations. We partially approve these SIP revisions because they are 
consistent with Federal requirements. We are partially disapproving the 
provisions of the State's submittal that allow the Administrator of the 
Wyoming Air Quality Division (WAQD) to approve alternative test methods 
in place of those required in the SIP, because such provisions are 
inconsistent with section 110(i) of the Clean Air Act (Act) and the 
requirement that SIP provisions can only be modified through revisions 
to the plan that must be approved by EPA. We are taking these actions 
under section 110 of the Act. We are not acting on Chapter 8, Section 4 
Transportation Conformity (part of the August 9, 2000 submittal) or on 
the PM2.5 revisions in Chapter 1 and Chapter 2 of the 
State's August 13, 2001 submittal.

DATES: This rule is effective on April 8, 2002, without further notice, 
unless we receive adverse comment by March 8, 2002. If we receive 
adverse comments, we will publish a timely withdrawal of the direct 
final rule in the Federal Register and inform the public that the rule 
will not take effect.

ADDRESSES: You should mail your written comments to Richard R. Long, 
Director, Air and Radiation Program, Mailcode 8P-AR, Environmental 
Protection Agency, Region VIII, 999 18th Street, Suite 300, Denver, 
Colorado, 80202. Copies of the documents relevant to this action are 
available for public inspection during normal business hours at the Air 
and Radiation Program, Environmental Protection Agency, Region VIII, 
999 18th Street, Suite 300, Denver, Colorado, 80202-2466. Copies of the 
Incorporation by Reference material are available at the Air and 
Radiation Docket (6102), Environmental Protection Agency, 401 M Street, 
SW., Washington, DC 20460. Copies of the State documents relevant to 
this action are available for public inspection at the Air Quality 
Division, Department of Environmental Quality, 122 West 25th Street, 
Cheyenne, Wyoming, 82002.

FOR FURTHER INFORMATION CONTACT: Megan Williams, EPA Region VIII, (303) 
312-6431.

SUPPLEMENTARY INFORMATION: Throughout this document, wherever ``we'', 
``our'', or ``us'' is used, we mean EPA.

Table of Contents

I. What is the Purpose of This Document?
II. Is the State's Submittal Approvable?
    A. The State's August 9, 2000 revisions
    1. Restructuring of WAQSR
    2. Chapter 3, Section 6 (Volatile organic compounds)
    3. Chapter 6, Section 4 (Prevention of significant deterioration 
(PSD))
    B. The State's August 7, 2001 revisions
    1. Chapter 1, Section 6 (Credible Evidence)
    2. Chapter 3 Section 6 (Volatile organic compounds)
    C. The State's August 13, 2001 revisions
    1. Chapter 1, Section 3 (Definitions)
    2. Chapter 2, Section 2 (Ambient standards for particulate 
matter)
    3. Chapter 3, Section 2 (Emission standards for particulate 
matter)
    4. Chapter 6, Section 2 (Permit requirements for construction, 
modification, and operation)
III. What is EPA's Final Action?
IV. What are the Administrative Requirements for This Action?
    A. Executive Order 12866
    B. Executive Order 13045
    C. Executive Order 13132
    D. Executive Order 13175
    E. Executive Order 13211
    F. Regulatory Flexibility
    G. Unfunded Mandates
    H. Submission to Congress and the Comptroller General
    I. National Technology Transfer and Advancement Act
    J. Petitions for Judicial Review

I. What Is the Purpose of This Document?

    In this document we are partially approving and partially 
disapproving revisions to the SIP submitted by the designee of the 
Governor of Wyoming on August 9, 2000; August 7, 2001; and August 13, 
2001. Specifically, we are approving the following sections of the 
renumbered WAQSR from the State's submittals into the SIP: Chapter 1 
Common Provisions, Sections 2-6, Chapter 2 Ambient Standards, Sections 
2, 6, 8 and 10, Chapter 3 General Emission Standards, Sections 5 and 6, 
Chapter 4 State Performance Standards for Existing Sources, Section 3, 
Chapter 6 Permitting Requirements, Sections 2 and 4, Chapter 7 
Monitoring Regulations, Section 2, Chapter 8 Non-attainment Area 
Regulations, Sections 2-3, Chapter 9 Visibility Impairment/PM Fine 
Control, Section 2, Chapter 10 Smoke Management, Sections 2-3, Chapter 
12 Emergency Controls, Section 2 and Chapter 13 Mobile Sources, Section 
2. We are partially approving and partially disapproving the following 
sections of the renumbered WAQSR: Chapter 2 Ambient Standards, Sections 
3-5; Chapter 3 General Emission Standards, Sections 2-4; and Chapter 4 
State Performance Standards for Specific Existing Sources, Section 2. 
We are not acting on Chapter 8 Non-attainment Area Regulations, Section 
4 Transportation Conformity (part of the August 9, 2000 submittal) or 
on the PM2.5 revisions in Chapter 1 and

[[Page 5486]]

Chapter 2 of the State's August 13, 2001 submittal.

II. Is the State's Submittal Approvable?

    Section 110(k) of the Act addresses our actions on submissions of 
SIP revisions. The Act also requires States to observe certain 
procedures in developing SIP revisions. Section 110(a)(2) of the Act 
requires that each SIP revision be adopted after reasonable notice and 
public hearing. We have evaluated the State's submission and determined 
that the necessary procedures were followed. We also must determine 
whether a submittal is complete and therefore warrants further review 
and action (see section 110(k)(1) of the Act). Our completeness 
criteria for SIP submittals can be found in 40 CFR part 51, appendix V. 
We attempt to determine completeness within 60 days of receiving a 
submission. However, the law considers a submittal complete if we do 
not determine completeness within six months after we receive it. The 
State's August 9, 2000 submission became complete by operation of law 
on February 9, 2001, in accordance with section 110(k)(1)(B) of the 
Act. We reviewed the State's August 7, 2001 and August 13, 2001 
submissions against our completeness criteria in 40 CFR Part 51, 
Appendix V. We determined these submissions were complete and notified 
the State in a letter dated August 24, 2001.

A. The State's August 9, 2000 Revisions

1. Restructuring of WAQSR
    The State restructured the entire WAQSR from a single chapter into 
thirteen separate chapters. This was done, according to the State, to 
create a more organized set of rules that will be more accessible to 
the public and the regulated community and will allow for more 
organized expansion and revision, when necessary.
    Several of the sections submitted to us for approval into the SIP 
continue to provide for the use of an equivalent or alternative test 
method to be approved by the Administrator of the WAQD. In an August 
19, 1998 letter to the WAQD and in our December 21, 2000 partial 
approval and partial disapproval of earlier revisions to the WAQSR (65 
FR 80329), we raised concerns about provisions in the WAQSR where the 
WAQD has the discretion to approve the use of alternative or equivalent 
test methods in place of those required in the SIP. Such discretionary 
authority for the State to change test methods that are included in the 
SIP, without obtaining prior EPA approval is not consistent with 
section 110 of the Act. These ``director's discretion'' provisions 
essentially allow for a variance from SIP requirements, which is not 
allowed under section 110(i) of the Act and the requirement that SIP 
provisions may only be modified by SIP revisions approved by EPA. In 
our August 19, 1998 letter, we identified the sections in the WAQSR 
that contain these ``director's discretion'' provisions, and informed 
the State that the provisions needed to be revised to require EPA 
approval of any alternative or equivalent test methods. In a September 
9, 1998 letter responding to our comments, the WAQD committed to 
address our concerns through revisions to these rules in the future. 
However, until these provisions are revised, we believe it is necessary 
to continue to disapprove the various ``director's discretion'' 
provisions, to ensure that any alternatives to the test methods 
required in the SIP are approved by EPA. Therefore, we are partially 
disapproving these provisions in Chapter 2 Ambient Standards, Sections 
3-5, Chapter 3 General Emission Standards, Sections 2-4 and Chapter 4 
State Performance Standards for Specific Existing Sources, Section 2.
2. Chapter 3, Section 6 (Volatile Organic Compounds)
    The State revised Chapter 3, Section 6 (previously Chapter 1, 
Section 9) of the WAQSR to adopt the July 1, 1998 definition of 
volatile organic compound (VOC) in 40 CFR 51.100(s). In the State's 
August 7, 2001 submittal Chapter 3, Section 6 was again revised to 
adopt the July 1, 1999 definition of VOC in 40 CFR 51.100(s). We are 
approving this more recent update to the incorporation by reference 
into the SIP, which will supercede the revisions submitted to us on 
August 7, 2000.
3. Chapter 6, Section 4 (Prevention of Significant Deterioration (PSD))
    The State made two substantive changes to its PSD permitting 
regulations. The first revision is a modification to the definition of 
``Minor source baseline date'' to remove the specific trigger date of 
January 1, 2001 from the definition. With this revision, the minor 
source baseline date is triggered only by the date on which a major 
stationary source or major modification submits a complete permit 
application as opposed to the date on which a major stationary source 
or major modification submits a complete permit application or January 
1, 2001, whichever occurs first. The revised definition is consistent 
with our definition in 40 CFR 51.166(b)(14)(ii). The minor source 
baseline date has been triggered for SO2, PM10 
and NO2 in all attainment and unclassifiable areas in the 
State. Most recently, a permit application from ENCOAL Corporation to 
construct a Liquids from Coal facility and an associated 240 megawatt 
coal-fired power plant in the Powder River Basin of Campbell County, 
Wyoming, was deemed complete on March 6, 1997; this triggered the minor 
source baseline date for the entire Powder River Basin PM10 
unclassifiable area. We are approving the State's revision to delete 
the January 1, 2001 date since the minor source baseline date was 
already triggered, prior to January 1, 2001, for all attainment and 
unclassifiable areas in the State.
    The second revision establishes a significance level for non-
methane hydrocarbons from municipal solid waste landfills. Since the 
state-adopted significance level of 50 tons per year is the same as the 
significance level for non-methane hydrocarbons from municipal solid 
waste landfills in 40 CFR 51.166(b)(23)(i) and 40 CFR 52.21(b)(23)(i), 
we are approving this revision into the SIP.

B. The State's August 7, 2001 Revisions

1. Chapter 1, Section 6 (Credible Evidence)
    The addition of Section 6 Credible Evidence was made in response to 
a SIP call issued by EPA on October 20, 1999. EPA promulgated Credible 
Evidence Revisions (see 62 FR 8314) which became effective December 30, 
1997 and which changed certain regulations to clarify that EPA can use, 
and has always been able to use, any credible evidence to prove 
violations of applicable requirements. In the Credible Evidence 
Revisions, EPA amended 40 CFR 51.212 to require SIPs to allow for the 
use of credible evidence for the purposes of submitting compliance 
certifications and for establishing whether or not a person has 
violated a standard in a SIP. Wyoming submitted a provision in Chapter 
1, Section 6 that meets the requirements of 40 CFR 51.212; we are 
approving this provision into the SIP.
2. Chapter 3, Section 6 (Volatile Organic Compounds)
    Chapter 3, Section 6 was revised to adopt the July 1, 1999 
definition of VOC in 40 CFR 51.100(s). We are approving this update to 
the incorporation by reference into the SIP.

C. The State's August 13, 2001 Revisions

1. Chapter 1, Section 3 (Definitions)
    Chapter 1, Common Provisions was revised to add definitions for 
``fugitive emissions,'' ``PM2.5'' and ``PM2.5

[[Page 5487]]

emissions''. We are approving the definition of ``fugitive emissions'' 
into the SIP, but we are not taking action on the other definitions for 
PM2.5. Currently, we are not approving provisions in any 
SIPs related to the implementation of a PM2.5 standard 
because there is no PM2.5 National Ambient Air Quality 
Standard (NAAQS) at this time. On May 18, 1999, the United States Court 
of Appeals for the D.C. Circuit in American Trucking Associations, Inc. 
et al., v. United States Environmental Protection Agency, 175 F.3d 1027 
(D.C. Cir. 1999), vacated the 1997 PM10 standard, determined 
that we were attempting to double-regulate the fine particulate 
fraction with the promulgation of the 1997 PM10 and 
PM2.5 standards, and asked for further information from EPA 
regarding health effects of PM2.5. Although the Court 
eventually agreed that there was a clear, health-based need for a 
PM2.5 standard, we did not proceed with the PM2.5 
implementation schedule. Since the Court had determined that EPA would 
be double-regulating the fine particle fraction of this pollutant if we 
were to implement the new PM10 and PM2.5 NAAQS, 
EPA decided not to proceed with implementation of the 1997 
PM2.5 NAAQS, but to wait for the outcome of the next 
required review of the PM standards for any further implementation of a 
new standard. On review of the Court of Appeals' decision, the U.S. 
Supreme Court reversed in part, upholding the new and revised NAAQS, 
but affirmed the lower court decision on the issue of EPA's 
implementation policy for the revised NAAQS, holding the policy 
unlawful. See Whitman v. American Trucking Associations, Inc., 531 U.S. 
457, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001). Accordingly, we are enforcing 
only the 1987 PM10 NAAQS at this time.
    In addition to the new definitions, the State made changes to 
correct ``director's discretion'' provisions in the definitions of 
``particulate matter emissions'' and ``PM10 emissions.'' In 
our December 21, 2000 action partially approving and partially 
disapproving revisions to Wyoming's air pollution regulations (see 65 
FR 80330), we partially disapproved this particular section of the 
State's rules, because it allowed the Wyoming Air Quality Director 
discretion to approve the use of alternative or equivalent test methods 
in place of those required in the SIP. The State has eliminated this 
discretion by revising these definitions to read, ``* * * or an 
equivalent or alternative method approved by the EPA Administrator.'' 
This will ensure that any alternatives to the test methods required in 
the SIP are approved by EPA. We are now fully approving the revisions 
to Chapter 1, Section 3 of the WAQSR that were partially disapproved in 
our December 21, 2000 action.
2. Chapter 2, Section 2 (Ambient Standards for Particulate Matter)
    Chapter 2, Section 2 was revised to incorporate the 1997 
PM2.5 NAAQS and to remove the ambient air standard for total 
suspended particulate (TSP). Since EPA is currently not implementing a 
PM2.5 standard, we are not taking action at this time on the 
new PM2.5 standard adopted by the State. Since EPA repealed 
the national ambient air quality standard for TSP over ten years ago, 
we are approving this deletion of the State's ambient air standard for 
TSP. We raised a concern to the State during the public comment period 
for these revisions about whether the State plans to relax any 
permitted emission limits as part of this rule change; relaxations of 
any limits on particulate matter could potentially impact the 
PM10 National Ambient Air Quality Standards (NAAQS). We also 
wanted to be sure that this change to delete the TSP ambient air 
quality standard would not impact the State's particulate matter 
monitoring network that has been established in the Powder River Basin. 
The State made clear, in a February 16, 2000 letter from Dan Olson, 
Administrator, Wyoming Air Quality Division, to Richard Long, Director, 
EPA Region VIII Air and Radiation Program, that relaxing existing 
permit emission limits as a result of deleting the TSP standard would 
be contrary to the State's basic philosophy of minimizing impact to air 
resources and that the State has no plans to do so. The State further 
indicated that the TSP monitors in the Powder River Basin that are used 
to measure compliance with the NAAQS are required to continue operation 
under existing air quality permits. Any changes in monitoring, which 
could only occur through a permit modification, would need to consider 
the effect of the monitor on the comprehensive particulate matter 
monitoring network in the Powder River Basin, which the State is 
committed to maintaining. We are relying on these clarifications in 
approving the deletion of the State's TSP ambient air standard and are 
archiving the above-referenced letter as Additional Materials in 40 CFR 
52.2620(c)(30)(ii).
3. Chapter 3, Section 2 (Emission Standards for Particulate Matter)
    Chapter 3, Section 2 was revised to incorporate revised fugitive 
dust provisions. The revisions to this section are not any less 
stringent than the existing fugitive dust provisions in the SIP, and 
therefore are approvable. The proposed agricultural provisions do 
contain an apparent change in stringency, because the SIP currently 
states that all agricultural activities must be conducted, ``* * * in 
such a manner as to prevent dust from becoming airborne''; the revision 
to that provision states that these operations should ``minimize'' 
fugitive dust emissions. However, because it is unrealistic to expect 
that agricultural activities such as tilling will not produce any 
fugitive dust and because there is no enforceable limit or work 
practice requirement associated with this SIP provision, the proposed 
revision to the SIP should not result in an increase in fugitive dust 
from agricultural activities.
    In addition, the State added a provision in Chapter 3, Section 2 to 
clarify that the particulate matter limitations established through the 
process weight rate tables (Chapter 3, Section 2 Tables I and II) are 
based on the maximum design production rate unless otherwise restricted 
by enforceable limits on potential to emit. This additional language in 
Chapter 3, Section 2(g)(i) is meant to clarify which limit is intended 
to apply to permitted sources. Finally, Section 2(e) has been modified 
to explain that more stringent limits, such as new source performance 
standards, established elsewhere in the regulations may apply. We are 
approving all of these revisions to Chapter 3, Section 2 into the SIP.
4. Chapter 6, Section 2 (Permit Requirements for Construction, 
(Modification, and Operation)
    Chapter 6, Section 2 was revised to remove the significance level 
for TSP. This change was made in conjunction with the removal of the 
ambient air standard for TSP in Chapter 2, Section 2 (see discussion in 
part 2, above). Without a referenced ambient air standard, the TSP 
significance level is not needed. This change is consistent with 40 CFR 
51.166, and we are approving the change into the SIP.

III. What Is EPA's Final Action?

    In this action, we are granting partial approval and partial 
disapproval of revisions to the WAQSR submitted as a SIP revision by 
the designee of the Governor of Wyoming on August 9, 2000; August 7, 
2001; and August 13, 2001. The portions of the restructured regulations 
and revisions that we are approving replace the prior SIP approved 
regulations. Specifically, we are granting approval of the following

[[Page 5488]]

sections of the renumbered WAQSR into the SIP: Chapter 1 Common 
Provisions, Sections 2-6; Chapter 2 Ambient Standards, Sections 2, 6, 8 
and 10; Chapter 3 General Emission Standards, Sections 5 and 6; Chapter 
4 State Performance Standards for Existing Sources, Section 3; Chapter 
6 Permitting Requirements, Sections 2 and 4; Chapter 7 Monitoring 
Regulations, Section 2; Chapter 8 Non-attainment Area Regulations, 
Sections 2 and 3; Chapter 9 Visibility Impairment/PM Fine Control, 
Section 2; Chapter 10 Smoke Management, Sections 2 and 3; Chapter 12 
Emergency Controls, Section 2; and Chapter 13 Mobile Sources, Section 
2. We are granting partial approval and partial disapproval of the 
following sections of the renumbered WAQSR: Chapter 2 Ambient 
Standards, Sections 3-5; Chapter 3 General Emission Standards, Sections 
2-4; and Chapter 4 State Performance Standards for Specific Existing 
Sources, Section 2. We are not acting on Chapter 8 Non-attainment Area 
Regulations, Section 4 Transportation Conformity (part of the August 9, 
2000 submittal) or on the PM2.5 revisions in Chapter 1 and 
Chapter 2 of the State's August 13, 2001 submittal.
    We are publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comment. However, in the ``Proposed Rules'' section of today's 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve the SIP revision if adverse 
comments are filed. This rule will be effective April 8, 2002, without 
further notice unless the Agency receives adverse comments by March 8, 
2002. If the EPA receives adverse comments, EPA will publish a timely 
withdrawal in the Federal Register informing the public that the rule 
will not take effect. EPA will address all public comments in a 
subsequent final rule based on the proposed rule. The EPA will not 
institute a second comment period on this action. Any parties 
interested in commenting must do so at this time. Please note that if 
EPA receives adverse comment on an amendment, paragraph, or section of 
this rule and if that provision may be severed from the remainder of 
the rule, EPA may adopt as final those provisions of the rule that are 
not the subject of an adverse comment.

IV. What Are the Administrative Requirements for This Action?

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

B. Executive Order 13045

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is 
determined to be ``economically significant'' as defined under 
Executive Order 12866, and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children, and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency.
    This rule is not subject to Executive Order 13045 because it does 
not involve decisions intended to mitigate environmental health or 
safety risks.

C. Executive Order 13132

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental Partnership). Executive Order 13132 requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by State and local officials in the development of regulatory policies 
that have federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.'' Under Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law unless the 
Agency consults with State and local officials early in the process of 
developing the proposed regulation.
    This rule will not have substantial direct effects on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government, as specified in Executive Order 13132, because it 
merely approves a state rule implementing a federal standard, and does 
not alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. Thus, the 
requirements of section 6 of the Executive Order do not apply to this 
rule.

D. Executive Order 13175

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    This final rule does not have tribal implications. It will not have 
substantial direct effects on tribal governments, on the relationship 
between the Federal government and Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
This action does not involve or impose any requirements that affect 
Indian Tribes. Thus, Executive Order 13175 does not apply to this rule.

E. Executive Order 13211

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

F. Regulatory Flexibility

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not

[[Page 5489]]

have a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small not-for-profit 
enterprises, and small governmental jurisdictions.
    This final partial approval rule will not have a significant impact 
on a substantial number of small entities because SIP approvals 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 
create any new requirements, I certify that this action will not have a 
significant economic impact on a substantial number of small entities. 
Moreover, due to the nature of the Federal-State relationship under the 
Clean Air Act, preparation of 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. EPA, 427 U.S. 246, 255-66 (1976); 
42 U.S.C. 7410(a)(2).
    This final partial disapproval rule will not have a significant 
impact on a substantial number of small entities because this partial 
disapproval only offsets the State's ability to grant variances from 
SIP testing requirements. As explained in this notice, the provisions 
of the SIP revision related to director's discretion do not meet the 
requirements of the Clean Air Act and EPA cannot approve the State's 
request to approve these provisions into the SIP. Therefore, I certify 
that this action will not have a significant economic impact on a 
substantial number of small entities.
    The partial approval and partial disapproval will not affect 
existing state requirements applicable to small entities. Federal 
disapproval of a state submittal does not affect its state-
enforceability.

G. Unfunded Mandates

    Under sections 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
the private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the partial approval action promulgated 
does not include a Federal mandate that may result in estimated costs 
of $100 million or more to either State, local, or tribal governments 
in the aggregate, or to the private sector. This Federal action 
partially approves pre-existing requirements under State or local law, 
and imposes no new requirements. Accordingly, no additional costs to 
State, local, or tribal governments, or to the private sector, result 
from this action.

H. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. section 801 et seq., as 
added by the Small Business Regulatory Enforcement Fairness Act of 
1996, generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. EPA will submit a report containing this 
rule and other required information to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States 
prior to publication of the rule in the Federal Register. A major rule 
cannot take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
section 804(2). This rule will be effective April 8, 2002, unless EPA 
receives adverse written comments by March 8, 2002.

I. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    The EPA believes that VCS are inapplicable to this action. Today's 
action does not require the public to perform activities conducive to 
the use of VCS.

J. Petitions for Judicial Review

    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 April 8, 2002. 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 may 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) of the Clean Air 
Act.)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: January 3, 2002.
Jack W. McGraw,
Acting Regional Administrator, Region VIII.

    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 et seq.

Subpart ZZ--Wyoming

    2. Section 52.2620 is amended by adding paragraph (c)(30) to read 
as follows:


Sec. 52.2620  Identification of plan.

* * * * *
    (c) * * *
    (30) On August 9, 2000, August 7, 2001, and August 13, 2001, the 
designee of the Governor of Wyoming submitted a restructured version of 
the Wyoming Air Quality Standards and Regulations (WAQSR) along with 
revisions to Chapter 1, Section 3 Definitions; Chapter 1, Section 6 
Credible evidence; Chapter 2, Section 2 Ambient standards for 
particulate matter; Chapter 3, Section 2 Emission standards for 
particulate matter; Chapter 3, Section 6 Volatile organic compounds 
(VOCs); Chapter 6, Section 2 Permit requirements for construction, 
modification, and operation; and Chapter 6, Section 4 Prevention of 
significant deterioration (PSD). EPA is replacing in the SIP all of the 
previously approved Wyoming air quality regulations with those 
regulations listed in paragraphs (c)(30)(i)(A) through (C) of this 
section.

[[Page 5490]]

    (i) Incorporation by reference.
    (A) Revisions to the WAQSR submitted on August 9, 2000: Chapter 1, 
Section 2, Section 3 (excluding the words ``or an equivalent or 
alternative method approved by the Administrator'' in the definition of 
``Particulate matter emissions'' and ``PM10 emissions''), 
Sections 4 and 5; Chapter 2, Section 2, Section 3 (excluding the words 
``or by an equivalent method''), Section 4 (excluding the words ``or an 
equivalent method''), Section 5 (excluding the words ``or by an 
equivalent method''), Sections 6, 8 and 10; Chapter 3, Section 2 
(excluding the words ``specified by the Administrator'' and excluding 
the sentence ``Provided that the Administrator may require that 
variations to said methods be included or that entirely different 
methods be utilized if he determines that such variations or different 
methods are necessary in order for the test data to reflect the actual 
emission rate of particulate matter'' in subsection 2(h)(iv)), Section 
3, Section 4 (excluding the words ``or an equivalent method'' in 
subsection (f)), Sections 5 and 6; Chapter 4, Section 2 (excluding the 
words ``or an equivalent method''), and Section 3; Chapter 6, Sections 
2 and 4; Chapter 7, Section 2; Chapter 8, Sections 2 and 3; Chapter 9, 
Section 2; Chapter 10, Sections 2 and 3; Chapter 12, Section 2; and 
Chapter 13, Section 2; all effective 10/29/99.
    (B) Revisions to the WAQSR submitted on August 7, 2001: Chapter 1, 
Section 6; and Chapter 3, Section 6; effective December 8, 2000.
    (C) Revisions to the WAQSR submitted on August 13, 2001: Chapter 1, 
Section 3; Chapter 2, Section 2; Chapter 3, Section 2 (excluding the 
words ``specified by the Administrator'' and excluding the sentence 
``Provided that the Administrator may require that variations to said 
methods be included or that entirely different methods be utilized if 
he determines that such variations or different methods are necessary 
in order for the test data to reflect the actual emission rate of 
particulate matter'' in subsection 2(h)(iv)); and Chapter 6, Section 2; 
all effective March 30, 2000.
    (ii) Additional Material.
    (A) February 16, 2000 letter from Dan Olson, Administrator, Wyoming 
Air Quality Division, to Richard Long, Director, EPA Region VIII Air 
and Radiation Program, clarifying the State's commitments to 
maintaining TSP permitting and monitoring requirements that contribute 
to protection of the PM10 NAAQS.

    3. Section 52.2622 is amended by designating the existing text as 
paragraph (a) and adding paragraph (b) to read as follows:


Sec. 52.2622  Approval status.

* * * * *
    (b) Wyoming Air Quality Standards and Regulations Chapter 2, 
Sections 3-5, Chapter 3, Section 3 and Chapter 4, Section 2, which were 
submitted by the designee of the Governor on August 9, 2000, as well as 
Chapter 3, Section 2, which was submitted by the designee of the 
Governor on August 13, 2001, and which all allow the Administrator of 
the Wyoming Air Quality Division the discretion to approve the use of 
alternative or equivalent test methods in place of those required in 
the SIP, are partially disapproved. Such discretionary authority for 
the State to change test methods that are included in the SIP, without 
obtaining prior EPA approval, cannot be approved into the SIP. Pursuant 
to section 110 of the Clean Air Act, to change a requirement of the 
SIP, the State must adopt a SIP revision and obtain our approval of the 
revision.

[FR Doc. 02-2706 Filed 2-5-02; 8:45 am]
BILLING CODE 6560-50-P