[Federal Register Volume 74, Number 44 (Monday, March 9, 2009)]
[Rules and Regulations]
[Pages 9958-9962]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-4794]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 60

[R08-WY-2008-0001; FRL-8770-2]


New Source Performance Standards; Supplemental Delegation of 
Authority to the State of Wyoming

AGENCY: Environmental Protection Agency (EPA).

ACTION: Delegation of authority; technical amendment.

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SUMMARY: The Wyoming Department of Environmental Quality submitted a 
request for an updated delegation of authority to implement and enforce 
the Federal New Source Performance Standards, including one new 
standard not previously delegated. EPA's review of Wyoming's updated 
regulations determined that they contain adequate and effective 
procedures for the implementation and enforcement of these Federal 
standards. This action informs the public of the updated delegation to 
Wyoming.
    EPA is also making a technical amendment to update the list of 
subparts delegated to Wyoming.

DATES: This technical amendment is effective on March 9, 2009. The 
delegation of authority to Wyoming became effective on November 26, 
2008.

ADDRESSES: Copies of documents relevant to this action are available 
for public inspection at the Environmental Protection Agency (EPA), 
Region 8, Air Program, 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 materials. You may view the hard copy of the materials 
Monday through Friday, 8 a.m. to 4 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Amy Platt, EPA Region 8, at (303) 312-
6449, or [email protected].

SUPPLEMENTARY INFORMATION: 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.

[[Page 9959]]

    (ii) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (iii) The words State or WY mean the State of Wyoming, unless the 
context indicates otherwise.
    (iv) The initials WDEQ mean the Wyoming Department of Environmental 
Quality.
    (v) The initials NSPS mean the Federal New Source Performance 
Standards, as codified in 40 CFR part 60.

I. Delegation of Authority

    Sections 110, 111(c)(1), and 301 of the Clean Air Act (CAA), as 
amended, authorize EPA to delegate authority to any state agency which 
submits adequate regulatory procedures for implementation and 
enforcement of the New Source Performance Standards (NSPS). The NSPS 
are codified in 40 CFR part 60. Delegation confers primary 
responsibility for implementation and enforcement of the listed NSPS to 
the respective state agency; however, EPA also retains the concurrent 
authority to enforce the standards.
    With a June 13, 2008 letter, the Director of the Wyoming Department 
of Environmental Quality (WDEQ) requested delegation of authority for 
revisions to the New Source Performance Standards (NSPS), promulgated 
in Chapter 5, National Emission Standards, Section 2, New source 
performance standards, of the Wyoming Air Quality Standards and 
Regulations. For the most part, the revisions simply update the date 
for incorporation by reference of the Federal NSPS to those promulgated 
in 40 CFR part 60 as published on July 1, 2006. EPA's review of the 
pertinent regulations determined that they contain adequate and 
effective procedures for the implementation and enforcement of these 
Federal standards. Therefore, on November 26, 2008, delegation was 
given to Wyoming with the following letter:

Ref: 8P-AR

John V. Corra, Director, Wyoming Department of Environmental 
Quality, 122 West 25th Street, Cheyenne, WY 82002.

Re: Delegation of Clean Air Act New Source Performance Standards

    Dear Mr. Corra: With your June 13, 2008 letter, the State of 
Wyoming submitted revisions to its Air Quality Standards and 
Regulations and requested, among other things, direct delegation to 
implement and enforce the Federal New Source Performance Standards 
(NSPS). Specifically, Wyoming Air Quality Standards and Regulations, 
Chapter 5, National Emission Standards, Section 2, New source 
performance standards, was revised, and a new Section 4, 
Incorporation by reference, was created to update the citation for 
the incorporated Federal NSPS in 40 CFR Part 60 as published on July 
1, 2006, and to make minor administrative revisions.
    Subsequent to States adopting NSPS regulations, EPA delegates 
the authority for the implementation and enforcement of those NSPS, 
so long as the States' regulations are equivalent to the Federal 
regulations. EPA reviewed the pertinent statutes and regulations of 
the State of Wyoming and determined that they provide an adequate 
and effective procedure for the implementation and enforcement of 
the NSPS by the State. Therefore, pursuant to Section 111(c) of the 
Clean Air Act (Act), as amended, and 40 CFR Part 60, EPA hereby 
delegates its authority for the implementation and enforcement of 
the NSPS to the State of Wyoming as follows:
    (A) Responsibility for all sources located, or to be located, in 
the State of Wyoming subject to the standards of performance for new 
stationary sources promulgated in 40 CFR Part 60. The categories of 
new stationary sources covered by this delegation are all NSPS 
subparts in 40 CFR Part 60, as published on July 1, 2006. Note this 
delegation does not include the emission guidelines in subparts Cb, 
Cc, Cd, Ce, BBBB, DDDD, FFFF, and HHHH. These subparts require state 
plans, which are approved under a separate process pursuant to 
Section 111(d) of the Act.
    (B) Not all authorities of NSPS can be delegated to States under 
Section 111(c) of the Act, as amended. The EPA Administrator retains 
authority to implement those sections of the NSPS that require: (1) 
Approving equivalency determinations and alternative test methods, 
(2) decision-making to ensure national consistency, and (3) EPA 
rulemaking in order to implement. Enclosed with this letter is a 
list of examples of sections in 40 CFR Part 60 related to the NSPS 
being delegated in this letter that cannot be delegated to the State 
of Wyoming. Please note that the enclosed list has been updated 
since our November 9, 2006 delegation of authority to implement and 
enforce the NSPS to the State of Wyoming.
    (C) The Wyoming Department of Environmental Quality (WDEQ) and 
EPA will continue a system of communication sufficient to guarantee 
that each office is always kept informed and current regarding 
compliance status of the subject sources and interpretation of the 
regulations.
    (D) Enforcement of the NSPS in the State will be the primary 
responsibility of the WDEQ. If the WDEQ determines that such 
enforcement is not feasible and so notifies EPA, or where the WDEQ 
acts in a manner inconsistent with the terms of this delegation, EPA 
may exercise its concurrent enforcement authority pursuant to 
section 113 of the Act, as amended, with respect to sources within 
the State of Wyoming subject to NSPS.
    (E) The State of Wyoming will at no time grant a variance or 
waiver from compliance with NSPS regulations. Should WYDEQ grant 
such a variance or waiver, EPA will consider the source receiving 
such relief to be in violation of the applicable Federal regulation 
and initiate enforcement action against the source pursuant to 
section 113 of the Act. The granting of such relief by the WYDEQ 
shall also constitute grounds for revocation of the delegation by 
EPA.
    (F) If at any time there is a conflict between a State 
regulation and a Federal regulation (40 CFR Part 60), the Federal 
regulation must be applied if it is more stringent than that of the 
State. If the State does not have the authority to enforce the more 
stringent Federal regulation, this portion of the delegation may be 
revoked.
    (G) If the Regional Administrator determines that a State 
procedure for enforcing or implementing the NSPS is inadequate, or 
is not being effectively carried out, this delegation may be revoked 
in whole or part. Any such revocation shall be effective as of the 
date specified in a Notice of Revocation to the WDEQ.
    (H) Acceptance of this delegation of presently promulgated NSPS 
does not commit the State of Wyoming to accept delegation of future 
standards and requirements. A new request for delegation will be 
required for any standards not included in the State's June 13, 2008 
letter.
    (I) Upon approval of the Regional Administrator of EPA Region 8, 
the Director of WDEQ may sub-delegate his authority to implement and 
enforce the NSPS to local air pollution control authorities in the 
State when such authorities have demonstrated that they have 
equivalent or more stringent programs in force.
    (J) The State of Wyoming must require reporting of all excess 
emissions from any NSPS source in accordance with 40 CFR Part 
60.7(c).
    (K) Performance tests shall be scheduled and conducted in 
accordance with the procedures set forth in 40 CFR Part 60 unless 
alternate methods or procedures are approved by the EPA 
Administrator. Although the Administrator retains the exclusive 
right to approve equivalent and alternate test methods as specified 
in 40 CFR Part 60.8(b)(2) and (3), the State may approve minor 
changes in methodology provided these changes are reported to EPA 
Region 8. The Administrator also retains the right to change the 
opacity standard as specified in 40 CFR Part 60.11(e).
    (L) Determinations of applicability, such as those specified in 
40 CFR Part 60.5 and review of plans, as provided for in 40 CFR Part 
60.6, shall be consistent with those determinations already made and 
reviews conducted by the EPA.
    (M) Alternatives to continuous monitoring procedures or 
reporting requirements, as outlined in 40 CFR Part 60.13(i), may be 
approved by the State only if the specific NSPS grants that 
authority. Otherwise, EPA retains the authority to review and 
approve such alternatives.
    (N) If a source proposes to modify its operation or facility 
which may cause the source to be subject to NSPS requirements, the 
State shall notify EPA Region 8 and obtain a determination on the 
applicability of the NSPS regulations.
    (O) Information shall be made available to the public in 
accordance with 40 CFR Part 60.9. Any records, reports, or 
information provided to, or otherwise obtained by, the

[[Page 9960]]

State in accordance with the provisions of these regulations shall 
be made available to the designated representatives of EPA upon 
request.
    (P) All reports required pursuant to the delegated NSPS should 
not be submitted to the EPA Region 8 office, but rather to the WDEQ.
    (Q) As 40 CFR Part 60 is updated, Wyoming should revise its 
regulations accordingly and in a timely manner and submit to EPA 
requests for updates to its delegation of authority.
    EPA is approving Wyoming's request for NSPS delegation for all 
areas within the State except for the following: Lands within the 
exterior boundaries of the Wind River Indian Reservation; any lands 
held in trust by the United States for an Indian tribe; and any 
other areas which are ``Indian Country'' as defined in 18 U.S.C. 
1151.
    Since this delegation is effective immediately, there is no need 
for the State to notify the EPA of its acceptance. Unless we receive 
written notice of objections from you within ten days of the date on 
which you receive this letter, the State of Wyoming will be deemed 
to accept all the terms of this delegation. To inform the public of 
this delegation, EPA will publish an information notice in the 
Federal Register in which this letter will appear in its entirety.
    EPA would like to take this opportunity to advise the State of 
Wyoming regarding some inconsistencies between its NSPS program and 
the Federal regulations. Although these inconsistencies have not 
been problematic from a practical standpoint, it would be best to 
clarify the language for future purposes to avoid any 
misinterpretations. Specifically, the State of Wyoming should revise 
the applicability provision (Chapter 5, Section 2(d)) and the 
definition of ``existing facility'' (Chapter 5, Section 2(e)(i)) so 
that the language is consistent with the language in the Federal 
requirements. The Federal regulations state that an ``affected 
facility'' and ``existing facility'' are determined based on the 
time a standard is proposed rather than the standard's effective 
date (see 40 CFR 60.1(a), 60.2). The State should modify the current 
Wyoming applicability section, which refers to ``construction or 
modification of which is commenced after the effective date'' to be 
consistent with the Federal applicability wording, which refers to 
``the construction or modification of which is commenced after * * * 
the date of publication of any proposed standard applicable to that 
facility.'' Further, the current Wyoming definition of ``existing 
facility,'' which refers to ``construction or modification of which 
commenced before the effective date,'' should be revised to mirror 
the Federal definition, which refers to ``construction or 
modification of which commenced before the proposed date.'' EPA 
requests that the State of Wyoming provide confirmation that it 
intends to make these modifications in an upcoming rulemaking.
    If you have any questions on this matter, please contact me at 
(303) 312-6241 or Callie Videtich, Director of our Air Program, at 
(303) 312-6434, or toll-free at 1-800-227-8917.
     Sincerely,
Stephen S. Tuber
Assistant Regional Administrator,
Office of Partnerships and Regulatory Assistance.
Enclosure
cc: Christine Anderson, WY Air Quality Division

    Enclosure to Letter Delegating NSPS in 40 CFR Part 60, Effective 
Through July 1, 2006, to the State of Wyoming

   Examples of Authorities in 40 CFR Part 60 Which Cannot Be Delegated
------------------------------------------------------------------------
    40 CFR  subparts                        Section(s)
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A......................  60.8(b)(2) and (b)(3), and those sections
                          throughout the standards that reference
                          60.8(b)(2) and (b)(3); 60.11(b) and (e); and
                          60.13(i).
Da.....................  60.47Da.
Db.....................  60.44b(f), 60.44b(g) and 60.49b(a)(4).
Dc.....................  60.48c(a)(4).
Ec.....................  60.56c(i), 60.8.
J......................  60.105(a)(13)(iii) and 60.106(i)(12).
Ka.....................  60.114a.
Kb.....................  60.111b(f)(4), 60.114b, 60.116b(e)(3)(iii),
                          60.116b(e)(3)(iv), and 60.116b(f)(2)(iii).
O......................  60.153(e).
DD.....................  60.302(d)(3).
GG.....................  60.332(a)(4) and 60.335(b)(10)(ii).
VV.....................  60.482-1(c)(2) and 60.484.
WW.....................  60.493(b)(2)(i)(A) and 60.496(a)(1).
XX.....................  60.502(e)(6).
AAA....................  60.531, 60.533, 60.534, 60.535, 60.536(i)(2),
                          60.537, 60.538(e), and 60.539.
BBB....................  60.543(c)(2)(ii)(B).
DDD....................  60.562-2(c).
GGG....................  60.592(c).
III....................  60.613(e).
JJJ....................  60.623.
KKK....................  60.634.
NNN....................  60.663(f).
QQQ....................  60.694.
RRR....................  60.703(e).
SSS....................  60.711(a)(16), 60.713(b)(1)(i) and (ii),
                          60.713(b)(5)(i), 60.713(d), 60.715(a) and
                          60.716.
TTT....................  60.723(b)(1), 60.723(b)(2)(i)(C),
                          60.723(b)(2)(iv), 60.724(e) and 60.725(b).
VVV....................  60.743(a)(3)(v)(A) and (B), 60.743(e),
                          60.745(a) and 60.746.
WWW....................  60.754(a)(5).
CCCC...................  60.2030(c)(1) through (7).
EEEE...................  60.2889(b)(1) through (6).
------------------------------------------------------------------------

II. Region 8 States Delegation Status

    In 40 CFR 60.4, we publish a table for Region 8 states that 
identifies the NSPS subparts for which EPA has delegated authority to 
implement and enforce to each state. In this document, we update that 
table to reflect the NSPS subparts delegated to Wyoming.

III. Summary of This Action

    This action informs the public of an update to the delegation of 
authority to the State of Wyoming to implement and enforce the Federal 
New Source Performance Standards as published in 40 CFR part 60 on July 
1, 2006. The letter granting delegation to the State of Wyoming is 
effective November 26, 2008. The letter specified that the

[[Page 9961]]

delegation was effective immediately as of the signature date of the 
letter and that if the State did not agree to the terms of the 
delegation, they could submit a written Notice of Objection within 10 
days of the receipt of the letter, and EPA would withdraw delegation. 
Wyoming submitted no such Notice of Objection.

IV. Statutory and Executive Order Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it 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).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, 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 by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does 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 (64 
FR 43255, August 10, 1999). This action 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. This rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it approves a state rule 
implementing a Federal standard.
    In addition, the requirements of section 12(d) of the National 
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do 
not apply. This rule does not impose an information collection burden 
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.).
    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 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. 
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 May 8, 2009. 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).)

List of Subjects in 40 CFR Part 60

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Aluminum, Ammonium sulfate plants, Batteries, 
Beverages, Carbon monoxide, Cement industry, Chemicals, Coal, Copper, 
Dry cleaners, Electric power plants, Fertilizers, Fluoride, Gasoline, 
Glass and glass products, Grains, Graphic arts industry, Heaters, 
Household appliances, Insulation, Intergovernmental relations, Iron, 
Labeling, Lead, Lime, Metallic and nonmetallic mineral processing 
plants, Metals, Motor vehicles, Natural gas, Nitric acid plants, 
Nitrogen dioxide, Paper and paper products industry, Particulate 
matter, Paving and roofing materials, Petroleum, Phosphate, Plastics 
materials and synthetics, Polymers, Reporting and recordkeeping 
requirements, Sewage disposal, Steel, Sulfur oxides, Sulfuric acid 
plants, Tires, Urethane, Vinyl, Volatile organic compounds, Waste 
treatment and disposal, Zinc. .

    Dated: February 24, 2009.
Carol Rushin,
Acting Regional Administrator, Region 8.

0
40 CFR part 60 is amended to read as follows:

PART 60--[AMENDED]

0
1. The authority citation for part 60 continues to read as follows:

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

Subpart A--General Provisions

0
2. In Sec.  60.4, amend the table in paragraph (c) by revising the 
entry for subpart ``Dc,'' and by adding an entry for subpart ``EEEE'' 
in alphabetical order to read as follows:


Sec.  60.4  Address.

* * * * *
    (c) * * *

                              Delegation Status of New Source Performance Standards
                                            [(NSPS) for Region VIII]
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                             Subpart                                CO      MT      ND      SD      UT      WY
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                                                  * * * * * * *
Dc--Industrial-Commercial-Institutional Steam Generators........     (*)     (*)     (*)     (*)     (*)     (*)
 

[[Page 9962]]

 
                                                  * * * * * * *
EEEE--Other Solid Waste Incineration Units for Which              ......  ......  ......  ......  ......     (*)
 Construction is Commenced After December 9, 2004, or for Which
 Modification or Reconstruction is Commenced On or After June
 16, 2006.......................................................
 
                                                  * * * * * * *
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(*) Indicates approval of State regulation.

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 [FR Doc. E9-4794 Filed 3-6-09; 8:45 am]
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