[Federal Register Volume 73, Number 137 (Wednesday, July 16, 2008)]
[Rules and Regulations]
[Pages 40750-40752]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-16126]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2007-0645; FRL-8692-1]


Approval and Promulgation of Air Quality Implementation Plans; 
Wyoming; Revisions to New Source Review Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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    EPA is approving the State Implementation Plan (SIP) revisions 
submitted by the State of Wyoming on December 13, 2006. The proposed 
revisions modify the State's Prevention of Significant Deterioration 
(PSD) regulations to address changes to the federal NSR regulations 
promulgated by EPA on December 31, 2002, and reconsidered with minor 
changes on November 7, 2003. The State of Wyoming has a federally-
approved PSD program for new and modified sources impacting attainment 
areas in the State. Wyoming does not have a Nonattainment New Source 
Review (NNSR) program. This action is being taken under section 110 of 
the Clean Air Act.

DATES: Effective Date: This final rule is effective August 15, 2008.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R08-OAR-2007-0645. All documents in the docket are listed on 
the http://www.regulations.gov Web site. Although listed in the index, 
some information is not publicly available, e.g., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically through http://www.regulations.gov, or in hard copy at 
the Air Program, Environmental Protection Agency (EPA), Region 8, 1595 
Wynkoop Street, Denver, Colorado 80202-1129. EPA requests that if at 
all possible, you contact the individual listed in the FOR FURTHER 
INFORMATION CONTACT section to view the hard copy of the docket. You 
may view the hard copy of the docket Monday through Friday, 8 a.m. to 4 
p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Domenico Mastrangelo, Air Program, 
U.S. Environmental Protection Agency, Region 8, Mailcode 8P-A, 1595 
Wynkoop Street, Denver, Colorado 80202, (303) 312-6416, 
[email protected].

SUPPLEMENTARY INFORMATION:

Definitions

    For the purpose of this document, we are giving meaning to certain 
words or initials as follows:
    (i) The words or initials Act or CAA mean or refer to the Clean Air 
Act, unless the context indicates otherwise.
    (ii) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (iii) The initials SIP mean or refer to State Implementation Plan.
    (iv) The words State or Wyoming mean the State of Wyoming unless 
the context indicates otherwise.

Table of Contents

I. What Action Is EPA Taking?
II. Background
III. Final Action
IV. Statutory and Executive Order Reviews

I. What Action Is EPA Taking?

    EPA is taking final action to approve revisions to the State of 
Wyoming SIP regarding the Wyoming PSD program. On April 1, 2008 (73 FR 
17289), EPA published an action of proposed rulemaking to approve 
Wyoming's revisions to their Prevention of Significant Deterioration 
regulations, Chapter 6, Section 4 of the Wyoming Air Quality Standards 
and Regulations (WAQS&R). The formal SIP revision was submitted to EPA 
by the State of Wyoming on December 13, 2006. EPA's proposed rule 
action published April 1, 2008 (73 FR 17289) provides more detailed 
information about the Wyoming SIP revisions being approved today. The 
public comment period for the proposed action ended on May 1, 2008. No 
comments, adverse or otherwise, were received on EPA's proposed action.

II. Background

    On December 31, 2002, EPA published revisions to the Federal PSD

[[Page 40751]]

and non-attainment NSR regulations in 40 Code of Federal Regulations 
(CFR) Parts 51 and 52 (67 FR 80186). This action was reconsidered with 
minor changes on November 7, 2003 (68 FR 63021). Collectively, these 
two final actions are referred to as the ``NSR Reform'' regulations and 
became effective nationally in areas not covered by a SIP on March 3, 
2003. These regulatory revisions included provisions for baseline 
emissions determinations, actual-to-future-actual methodology, 
plantwide applicability limits (PALs), Clean Units, and Pollution 
Control Projects (PCPs). As stated in the December 31, 2002 rulemaking, 
State and local permitting agencies must adopt and submit revisions to 
their part 51 permitting programs implementing the minimum program 
elements (67 FR 80240). With the December 13, 2006 submittal, Wyoming 
requested approval of program revisions into the State SIP that satisfy 
this requirement.
    In the November 7, 2003 reconsideration noted earlier, EPA 
clarified two provisions in the regulations by including a definition 
of ``replacement unit'' and by clarifying that the PALs baseline 
calculation procedures for newly constructed units do not apply to 
modified units (68 FR 63021).
    On October 27, 2003 EPA published a rulemaking action related to, 
but not part of, the 2002 NSR Reform. EPA published the Routine 
Equipment Replacement Provision (ERP) amendments (68 FR 61248) which 
specified at 40 CFR 51.166(b)(2)(iii)(a) the criteria for the routine 
replacement of equipment.
    On December 24, 2003, the United States Court of Appeals for the 
District of Columbia Circuit, on challenges to the October 27, 2003 EPA 
rulemaking, stayed EPA's final Routine Equipment Replacement Provision, 
State of New York v. EPA, No. 03-1380. On March 17, 2006, the same 
Court vacated these provisions. On June 24, 2005, the same Appeals 
Court issued a ruling on challenges to the December 2002 NSR Reform 
revisions, State of New York et al. v. EPA, 413 F.3d 3 (D.C. Cir. 
2005). Although the Court upheld most of EPA's rules, it vacated both 
the Clean Unit (CU) and the PCP provisions and remanded back to EPA the 
recordkeeping provisions at 40 CFR 52.21(r)(6) that required a 
stationary source to keep records of projects when there was a 
``reasonable possibility'' that the project could result in a 
significant emissions increase.
    EPA brought its NSR Reform regulations in conformity with the 
Court's June 24, 2005 ruling in final rulemakings published on June 13 
and December 21, 2007 (72 FR 32526, 72 FR 32526). In these actions, EPA 
removed from the Code of Federal Regulations (CFR) the PCP and CU 
provisions contained in sections 40 CFR 51.165, 51.166, and 52.21(72 FR 
32526), and identified the criteria triggering the ``reasonable 
possibility'' recordkeeping and reporting standard (72 FR 72607).
    The revised Chapter 6, Section 4 of the WAQS&R submitted to EPA on 
December 13, 2006, consistent with the Court rulings noted above, does 
not include the vacated Clean Unit, PCP, and ERP provisions. As for the 
``reasonable possibility'' phrase, the Wyoming revised PSD provisions 
included recordkeeping requirements omitting the ``reasonable 
possibility'' language objected to by the Court. This omission makes 
the Wyoming recordkeeping requirements, set at Chapter 6, Section 
4(b)(i)(H)(I), more stringent than the equivalent EPA provisions in the 
2002 NSR Reform rules, and therefore approvable. To make the State NSR 
SIP provisions we are approving consistent with the EPA December 21, 
2007 rulemaking on the ``reasonable possibility'' recordkeeping and 
reporting standard (72 FR 72607), the State of Wyoming needs to submit 
a notice to EPA within 3 years to acknowledge that their regulations 
fulfill these requirements.
    The Wyoming PSD revisions do not address the definition of 
``replacement unit'' approved by EPA in the November 7, 2003 
reconsideration of the 2002 NSR Reform. This omission was based on the 
State's understanding that the NSR Reform Rules contained ``replacement 
unit'' references only within the PCPs and CU provisions that Wyoming, 
as noted above, has not adopted. As the State realized that both its 
revised and its EPA-approved NSR SIPs include a reference to 
``replacement unit'' in their definition of ``Net emission increase'' 
at Chapter 6, Section 4(a)(viii), the State addressed this issue to the 
satisfaction of EPA. In an exchange of e-mails with EPA on August 13 
and September 5, 2007 (included as part of the docket for this action), 
the State of Wyoming indicated its agreement with EPA's interpretation 
of the definition of ``replacement unit'' detailed in the EPA 
``Technical Support Document (TSD) for the Prevention of Significant 
Deterioration (PSD) and Nonattainment Area New Source Review (NSR): 
Reconsideration.'' As a result, EPA concluded that the omission of this 
definition from Chapter 6, Section 4 of Wyoming regulations is 
approvable, but also recommends that the State of Wyoming make these 
provisions formally consistent with the Federal language by adopting 
the definition of ``replacement unit'' in a future rulemaking.

III. Final Action

    EPA is taking final action to approve Wyoming's revisions to their 
Wyoming Air Quality Standards and Regulations, Chapter 6, Section 4, 
Prevention of Significant Deterioration, submitted to EPA by the State 
of Wyoming on December 13, 2006. These revisions to Chapter 6, Section 
4 were adopted by the Wyoming Environmental Quality Council (EQC) on 
July 27, 2006, effective October 6, 2006, and supersede and replace the 
EPA-approved Chapter 6, Section 4 of the WAQS&R rules.

IV. Statutory and Executive Order Review

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act 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 Clean Air Act. 
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

[[Page 40752]]

Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) 
because application of those requirements would be inconsistent with 
the Clean Air Act; 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.
    The Congressional Review Act, 5 U.S.C. 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 action 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. 
804(2).
    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 September 15, 2008. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action 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).)

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.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: June 30, 2008.
Judith Wong,
Acting Deputy Regional Administrator, Region 8.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart ZZ--Wyoming

0
2. In Sec.  52.2620, the table in paragraph (c)(1) is amended under 
Chapter 6 by revising the entry for Section 4 to read as follows:


Sec.  52.2620  Identification of plan.

* * * * *
    (c) * * *
    (1) * * *

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                                                      State adopted and   EPA approval date
         State citation             Title/Subject      effective date     and citation \1\       Explanations
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                                                  * * * * * * *
           Chapter 6
 
                                                  * * * * * * *
Section 4......................  Prevention of         7/27/06, 10/6/06  7/16/08. [insert    ...................
                                  significant                             FR page number
                                  deterioration.                          where document
                                                                          begins].
 
                                                  * * * * * * *
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\1\ In order to determine the EPA effective date for a specific provision that is listed in this table, consult
  the Federal Register cited in this column for that particular provision.

[FR Doc. E8-16126 Filed 7-15-08; 8:45 am]
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