[Federal Register Volume 76, Number 142 (Monday, July 25, 2011)]
[Rules and Regulations]
[Pages 44265-44271]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-18423]



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ENVIRONMENTAL PROTECTION AGENCY



40 CFR Part 52



[EPA-R08-OAR-2010-0303; FRL-9441-5]




Approval and Disapproval and Promulgation of State Implementation 

Plan Revisions; Infrastructure Requirements for the 1997 8-Hour Ozone 

National Ambient Air Quality Standard; Wyoming



AGENCY: Environmental Protection Agency (EPA).



ACTION: Final rule.



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SUMMARY: EPA is partially approving and partially disapproving the 

State Implementation Plan (SIP) submission from the State of Wyoming to 

demonstrate that the SIP meets the requirements of sections 110(a)(1) 

and (2) of the Clean Air Act (CAA) for the National Ambient Air Quality 

Standards (NAAQS) promulgated for ozone on July 18, 1997. Section 

110(a)(1) of the CAA requires that each state, after a new or revised 

NAAQS is promulgated, review their SIPs to ensure that they meet the 

requirements of the ``infrastructure elements'' of section 110(a)(2). 

The State of Wyoming submitted two certifications, dated December 7, 

2007 and December 10, 2009, that its SIP met these requirements for the 

1997 ozone NAAQS. The December 7, 2007 certification was determined to 

be complete on March 27, 2008 (73 FR 16205). In addition, EPA is 

approving a May 11, 2011 SIP submittal from the State that revises the 

State's Prevention of Significant Deterioration (PSD) program.



DATES: Effective Date: This final rule is effective August 24, 2011.



ADDRESSES: EPA has established a docket for this action under Docket ID 

No. EPA-R08-OAR-2010-0303. 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: Kathy Dolan, Air Program, U.S. 

Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 

Wynkoop Street, Denver, Colorado 80202-1129. 303-312-6142, 

[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.



Table of Contents



I. Background

II. Comments

III. Final Action

IV. Statutory and Executive Order Reviews



[[Page 44266]]



I. Background



    On July 18, 1997, EPA promulgated new NAAQS for ozone based on 8-

hour average concentrations. The 8-hour averaging period replaced the 

previous 1-hour averaging period, and the level of the NAAQS was 

changed from 0.12 parts per million (ppm) to 0.08 ppm (62 FR 38856). By 

statute, SIPs meeting the requirements of sections 110(a)(1) and (2) 

are to be submitted by states within three years after promulgation of 

a new or revised standard. Section 110(a)(2) provides basic 

requirements for SIPs, including emissions inventories, monitoring, and 

modeling, to assure attainment and maintenance of the standards. These 

requirements are set out in several ``infrastructure elements,'' listed 

in section 110(a)(2).

    Section 110(a) imposes the obligation upon states to make a SIP 

submission to EPA for a new or revised NAAQS, and the contents of that 

submission may vary depending upon the facts and circumstances. In 

particular, the data and analytical tools available at the time a state 

develops and submits its SIP for a new or revised NAAQS affects the 

content of the submission. The contents of such SIP submissions may 

also vary depending upon what provisions a state's existing SIP already 

contains. In the case of the 1997 ozone NAAQS, states typically have 

met the basic program elements required in section 110(a)(2) through 

earlier SIP submissions in connection with previous NAAQS. In a 

guidance issued on October 2, 2007, EPA noted that, to the extent an 

existing SIP already meets the section 110(a)(2) requirements, states 

need only to certify that fact via a letter to EPA.\1\

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    \1\ Memorandum from William T. Harnett, Director, Air Quality 

Policy Division, ``Guidance on SIP Elements Required Under Sections 

110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 

National Ambient Air Quality Standards'' (Oct. 2, 2007).

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    On March 27, 2008, EPA published a final rule entitled, 

``Completeness Findings for Section 110(a) State Implementation Plans 

for the 8-hour Ozone NAAQS'' (73 FR 16205). In the rule, EPA made a 

finding for each state that it had submitted or had failed to submit a 

complete SIP that provided the basic program elements of section 

110(a)(2) necessary to implement the 1997 8-hour ozone NAAQS. In 

particular, EPA found that Wyoming had submitted a complete SIP 

(``Infrastructure SIP'') to meet these requirements.

    On May 23, 2011, EPA published a notice of proposed rulemaking 

(NPR) for the State of Wyoming (76 FR 29680) to act on the State's 

Infrastructure SIP for the 1997 ozone NAAQS. Specifically, in the NPR 

EPA proposed approval of Wyoming's SIP as meeting the requirements of 

section 110(a)(2) elements (A), (B), (D)(ii), (E), (F), (G), (H), (K), 

(L) and (M) with respect to the 1997 ozone NAAQS. EPA also proposed 

approval of revisions to Wyoming Air Quality Standards and Regulations 

(WAQSR) Chapter 6, Section 4 (PSD) from Wyoming's May 11, 2011 

submittal, specifically revisions which meet the requirements the phase 

2 implementation rule for the 1997 ozone NAAQS (72 FR 71612, November 

20, 2005), the NSR implementation rule for PM2.5 (73 FR 

28321, May 16, 2008), and the inserted definition of ``replacement 

unit,'' which reflects the language of 40 CFR 51.166 (b)(32)(i) through 

(iv). EPA did not propose action on sections 110(a)(2)(D)(i), (I), and 

the visibility protection requirement of section 110(a)(2)(J).\2\ EPA 

proposed to disapprove 110(a)(2)(C) and (J) on the basis that Wyoming's 

SIP-approved PSD program does not properly regulate greenhouse gas 

(GHG) emissions.

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    \2\ See the NPR (76 FR 29680) for further explanation regarding 

the omission of elements 110(a)(2)(D)(i) and 110(a)(2)(I) from the 

proposal.

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    On June 3, 2010, EPA promulgated the ``Prevention of Significant 

Deterioration and Title V Greenhouse Gas Tailoring Rule'' (``Tailoring 

Rule'') (75 FR 31514), setting out requirements for application of PSD 

to emissions sources of greenhouse gases (GHG). On December 13, 2010, 

EPA issued a finding of substantial inadequacy and SIP call for seven 

states, including Wyoming, on the basis that the states' SIP-approved 

PSD programs did not apply PSD to GHG-emitting sources as required 

under the Tailoring Rule (75 FR 77698). Next, on December 29, 2010, EPA 

issued a finding that the seven states had failed to submit revisions 

to their SIPs as necessary to correct this inadequacy (75 FR 81874). 

Finally, on December 30, 2010, EPA established a federal implementation 

plan (FIP) in the seven states to ensure that PSD permits for sources 

emitting GHGs could be issued in accordance with the Tailoring Rule (75 

FR 82246). As the Wyoming PSD program is currently subject to a finding 

of substantial inadequacy and SIP call, and Wyoming had not taken steps 

to remedy the inadequacy, EPA proposed to disapprove infrastructure 

elements 110(a)(2)(C) and (J) in the NPR as each requires the SIP to 

contain a PSD program that meets the requirements of part C of title I 

of the Act.



Scope of Infrastructure SIPs



    EPA is currently acting upon SIPs that address the infrastructure 

requirements of CAA section 110(a)(1) and (2) for ozone and 

PM2.5 NAAQS for various states across the country. 

Commenters on EPA's recent proposals for some states raised concerns 

about EPA statements that it was not addressing certain substantive 

issues in the context of acting on the infrastructure SIP 

submissions.\3\ The commenters specifically raised concerns involving 

provisions in existing SIPs and with EPA's statements that it would 

address two issues separately and not as part of actions on the 

infrastructure SIP submissions: (i) existing provisions related to 

excess emissions during periods of start-up, shutdown, or malfunction 

at sources, that may be contrary to the CAA and EPA's policies 

addressing such excess emissions (``SSM''); and (ii) existing 

provisions related to ``director's variance'' or ``director's 

discretion'' that purport to permit revisions to SIP approved emissions 

limits with limited public process or without requiring further 

approval by EPA, that may be contrary to the CAA (``director's 

discretion''). EPA notes that there are two other substantive issues 

for which EPA likewise stated that it would address the issues 

separately: (i) Existing provisions for minor source new source review 

programs that may be inconsistent with the requirements of the CAA and 

EPA's regulations that pertain to such programs (``minor source new 

source review (NSR)''); and (ii) existing provisions for PSD programs 

that may be inconsistent with current requirements of EPA's ``Final NSR 

Improvement Rule,'' 67 Fed. Reg. 80,186 (December 31, 2002), as amended 

by 72 FR 32,526 (June 13, 2007) (``NSR Reform''). In light of the 

comments, EPA now believes that its statements in various proposed 

actions on infrastructure SIPs with respect to these four individual 

issues should be explained in greater depth with respect to these 

issues.

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    \3\ See, Comments of Midwest Environmental Defense Center, dated 

May 31, 2011. Docket  EPA-R05-OAR-2007-1179 (adverse 

comments on proposals for three states in Region 5). EPA notes that 

these public comments on another proposal are not relevant to this 

rulemaking and do not have to be directly addressed in this 

rulemaking. EPA will respond to these comments in the appropriate 

rulemaking action to which they apply.

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    EPA intended the statements in the proposals concerning these four 

issues merely to be informational, and to provide general notice of the 

potential existence of provisions within the existing SIPs of some 

states that might



[[Page 44267]]



require future corrective action. EPA did not want states, regulated 

entities, or members of the public to be under the misconception that 

the Agency's approval of the infrastructure SIP submission of a given 

state should be interpreted as a reapproval of certain types of 

provisions that might exist buried in the larger existing SIP for such 

state. Thus, for example, EPA explicitly noted that the Agency believes 

that some states may have existing SIP approved SSM provisions that are 

contrary to the CAA and EPA policy, but that ``in this rulemaking, EPA 

is not proposing to approve or disapprove any existing state provisions 

with regard to excess emissions during SSM of operations at 

facilities.'' EPA further explained, for informational purposes, that 

``EPA plans to address such State regulations in the future.'' EPA made 

similar statements, for similar reasons, with respect to the director's 

discretion, minor source NSR, and NSR Reform issues. EPA's objective 

was to make clear that approval of an infrastructure SIP for these 

ozone and PM2.5 NAAQS should not be construed as explicit or 

implicit reapproval of any existing provisions that relate to these 

four substantive issues.

    Unfortunately, the commenters and others evidently interpreted 

these statements to mean that EPA considered action upon the SSM 

provisions and the other three substantive issues to be integral parts 

of acting on an infrastructure SIP submission, and therefore that EPA 

was merely postponing taking final action on the issue in the context 

of the infrastructure SIPs. This was not EPA's intention. To the 

contrary, EPA only meant to convey its awareness of the potential for 

certain types of deficiencies in existing SIPs, and to prevent any 

misunderstanding that it was reapproving any such existing provisions. 

EPA's intention was to convey its position that the statute does not 

require that infrastructure SIPs address these specific substantive 

issues in existing SIPs and that these issues may be dealt with 

separately, outside the context of acting on the infrastructure SIP 

submission of a state. To be clear, EPA did not mean to imply that it 

was not taking a full final agency action on the infrastructure SIP 

submission with respect to any substantive issue that EPA considers to 

be a required part of acting on such submissions under section 110(k) 

or under section 110(c). Given the confusion evidently resulting from 

EPA's statements, however, we want to explain more fully the Agency's 

reasons for concluding that these four potential substantive issues in 

existing SIPs may be addressed separately.

    The requirement for the SIP submissions at issue arises out of CAA 

section 110(a)(1). That provision requires that states must make a SIP 

submission ``within 3 years (or such shorter period as the 

Administrator may prescribe) after the promulgation of a national 

primary ambient air quality standard (or any revision thereof)'' and 

that these SIPS are to provide for the ``implementation, maintenance, 

and enforcement'' of such NAAQS. Section 110(a)(2) includes a list of 

specific elements that ``[e]ach such plan'' submission must meet. EPA 

has historically referred to these particular submissions that states 

must make after the promulgation of a new or revised NAAQS as 

``infrastructure SIPs.'' This specific term does not appear in the 

statute, but EPA uses the term to distinguish this particular type of 

SIP submission designed to address basic structural requirements of a 

SIP from other types of SIP submissions designed to address other 

different requirements, such as ``nonattainment SIP'' submissions 

required to address the nonattainment planning requirements of part D, 

``regional haze SIP'' submissions required to address the visibility 

protection requirements of CAA section 169A, NSR permitting program 

submissions required to address the requirements of part D, and a host 

of other specific types of SIP submissions that address other specific 

matters.

    Although section 110(a)(1) addresses the timing and general 

requirements for these infrastructure SIPs, and section 110(a)(2) 

provides more details concerning the required contents of these 

infrastructure SIPs, EPA believes that many of the specific statutory 

provisions are facially ambiguous. In particular, the list of required 

elements provided in section 110(a)(2) contains a wide variety of 

disparate provisions, some of which pertain to required legal 

authority, some of which pertain to required substantive provisions, 

and some of which pertain to requirements for both authority and 

substantive provisions.\4\ Some of the elements of section 110(a)(2) 

are relatively straightforward, but others clearly require 

interpretation by EPA through rulemaking, or recommendations through 

guidance, in order to give specific meaning for a particular NAAQS.\5\

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    \4\ For example, section 110(a)(2)(E) provides that states must 

provide assurances that they have adequate legal authority under 

state and local law to carry out the SIP; section 110(a)(2)(C) 

provides that states must have a substantive program to address 

certain sources as required by part C of the CAA; section 

110(a)(2)(G) provides that states must have both legal authority to 

address emergencies and substantive contingency plans in the event 

of such an emergency.

    \5\ For example, section 110(a)(2)(D)(i) requires EPA to be sure 

that each SIP contains adequate provisions to prevent significant 

contribution to nonattainment of the NAAQS in other states. This 

provision contains numerous terms that require substantial 

rulemaking by EPA in order to determine such basic points as what 

constitutes significant contribution. See, e.g., ``Rule To Reduce 

Interstate Transport of Fine Particulate Matter and Ozone (Clean Air 

Interstate Rule); Revisions to Acid Rain Program; Revisions to the 

NOX SIP Call; Final Rule,'' 70 FR 25162 (May 12, 2005) 

(defining, among other things, the phrase ``contribute significantly 

to nonattainment'').

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    Notwithstanding that section 110(a)(2) states that ``each'' SIP 

submission must meet the list of requirements therein, EPA has long 

noted that this literal reading of the statute is internally 

inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment 

SIP requirements that could not be met on the schedule provided for 

these SIP submissions in section 110(a)(1).\6\ This illustrates that 

EPA must determine which provisions of section 110(a)(2) may be 

applicable for a given infrastructure SIP submission. Similarly, EPA 

has previously decided that it could take action on different parts of 

the larger, general ``infrastructure SIP'' for a given NAAQS without 

concurrent action on all subsections, such as section 110(a)(2)(D)(i), 

because the Agency bifurcated the action on these latter ``interstate 

transport'' provisions within section 110(a)(2) and worked with states 

to address each of the four prongs of section 110(a)(2)(D)(i) with 

substantive administrative actions proceeding on different tracks with 

different schedules.\7\ This illustrates that EPA may conclude that 

subdividing the applicable requirements of section 110(a)(2) into 

separate SIP actions may sometimes be appropriate for a given NAAQS 

where a specific substantive action is necessitated, beyond a mere 

submission addressing basic structural aspects of the SIP. Finally, EPA 

notes that not every element of section 110(a)(2) would be relevant, or 

as relevant, or relevant in the same way, for each new or revised NAAQS 

and the



[[Page 44268]]



attendant infrastructure SIP submission for that NAAQS. For example, 

the monitoring requirements that might be necessary for purposes of 

section 110(a)(2)(B) for one NAAQS could be very different than what 

might be necessary for a different pollutant. Thus, the content of an 

infrastructure SIP submission to meet this element from a state might 

be very different for an entirely new NAAQS, versus a minor revision to 

an existing NAAQS.\8\

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    \6\ See, e.g., Id., 70 FR 25,162, at 63-65 (May 12, 2005) 

(explaining relationship between timing requirement of section 

110(a)(2)(D) versus section 110(a)(2)(I)).

    \7\ EPA issued separate guidance to states with respect to SIP 

submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and 

1997 PM2.5 NAAQS. See, ``Guidance for State 

Implementation Plan (SIP) Submissions to Meet Current Outstanding 

Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and 

PM2.5 National Ambient Air Quality Standards,'' from 

William T. Harnett, Director, Air Quality Policy Division OAQPS, to 

Regional Air Division Director, Regions I-X, dated August 15, 2006.

    \8\ For example, implementation of the 1997 PM2.5 

NAAQS required the deployment of a system of new monitors to measure 

ambient levels of that new indicator species for the new NAAQS.

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    Similarly, EPA notes that other types of SIP submissions required 

under the statute also must meet the requirements of section 110(a)(2), 

and this also demonstrates the need to identify the applicable elements 

for other SIP submissions. For example, nonattainment SIPs required by 

part D likewise have to meet the relevant subsections of section 

110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear 

that nonattainment SIPs would not need to meet the portion of section 

110(a)(2)(C) that pertains to part C, i.e., the PSD requirement 

applicable in attainment areas. Nonattainment SIPs required by part D 

also would not need to address the requirements of section 110(a)(2)(G) 

with respect to emergency episodes, as such requirements would not be 

limited to nonattainment areas. As this example illustrates, each type 

of SIP submission may implicate some subsections of section 110(a)(2) 

and not others.

    Given the potential for ambiguity of the statutory language of 

section 110(a)(1) and (2), EPA believes that it is appropriate for EPA 

to interpret that language in the context of acting on the 

infrastructure SIPs for a given NAAQS. Because of the inherent 

ambiguity of the list of requirements in section 110(a)(2), EPA has 

adopted an approach in which it reviews infrastructure SIPs against 

this list of elements ``as applicable.'' In other words, EPA assumes 

that Congress could not have intended that each and every SIP 

submission, regardless of the purpose of the submission or the NAAQS in 

question, would meet each of the requirements, or meet each of them in 

the same way. EPA elected to use guidance to make recommendations for 

infrastructure SIPs for these NAAQS.

    On October 2, 2007, EPA issued guidance making recommendations for 

the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS 

and the 1997 PM2.5 NAAQS.\9\ Within this guidance document, 

EPA described the duty of states to make these submissions to meet what 

the Agency characterized as the ``infrastructure'' elements for SIPs, 

which it further described as the ``basic SIP requirements, including 

emissions inventories, monitoring, and modeling to assure attainment 

and maintenance of the standards.'' \10\ As further identification of 

these basic structural SIP requirements, ``attachment A'' to the 

guidance document included a short description of the various elements 

of section 110(a)(2) and additional information about the types of 

issues that EPA considered germane in the context of such 

infrastructure SIPs. EPA emphasized that the description of the basic 

requirements listed on attachment A was not intended ``to constitute an 

interpretation of '' the requirements, and was merely a ``brief 

description of the required elements.'' \11\ EPA also stated its belief 

that with one exception, these requirements were ``relatively self 

explanatory, and past experience with SIPs for other NAAQS should 

enable States to meet these requirements with assistance from EPA 

Regions.'' \12\ For the one exception to that general assumption, 

however, i.e., how states should proceed with respect to the 

requirements of section 110(a)(2)(G) for the 1997 PM2.5 

NAAQS, EPA gave much more specific recommendations. But for other 

infrastructure SIP submittals, and for certain elements of the 

submittals for the 1997 PM2.5 NAAQS, EPA assumed that each 

state would work with its corresponding EPA regional office to refine 

the scope of a state's submittal based on an assessment of how the 

requirements of section 110(a)(2) should reasonably apply to the basic 

structure of the SIP for the NAAQS in question.

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    \9\ See, ``Guidance on SIP Elements Required Under Section 

110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 

National Ambient Air Quality Standards,'' from William T. Harnett, 

Director Air Quality Policy Division, to Air Division Directors, 

Regions I-X, dated October 2, 2007 (the ``2007 Guidance''). EPA 

issued comparable guidance for the 2006 PM2.5 NAAQS 

entitled ``Guidance on SIP Elements Required Under Sections 

110(a)(1) and (2) for the 2006 24-Hour Fine Particle 

(PM2.5) National Ambient Air Quality Standards (NAAQS),'' 

from William T, Harnett, Director Air Quality Policy Division, to 

Regional Air Division Directors, Regions I-X, dated September 25, 

2009 (the ``2009 Guidance'').

    \10\ Id., at page 2.

    \11\ Id., at attachment A, page 1.

    \12\ Id., at page 4. In retrospect, the concerns raised by 

commenters with respect to EPA's approach to some substantive issues 

indicates that the statute is not so ``self explanatory,'' and 

indeed is sufficiently ambiguous that EPA needs to interpret it in 

order to explain why these substantive issues do not need to be 

addressed in the context of infrastructure SIPs and may be addressed 

at other times and by other means.

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    Significantly, the 2007 Guidance did not explicitly refer to the 

SSM, director's discretion, minor source NSR, or NSR Reform issues as 

among specific substantive issues EPA expected states to address in the 

context of the infrastructure SIPs, nor did EPA give any more specific 

recommendations with respect to how states might address such issues 

even if they elected to do so. The SSM and director's discretion issues 

implicate section 110(a)(2)(A), and the minor source NSR and NSR Reform 

issues implicate section 110(a)(2)(C). In the 2007 Guidance, however, 

EPA did not indicate to states that it intended to interpret these 

provisions as requiring a substantive submission to address these 

specific issues in the context of the infrastructure SIPs for these 

NAAQS. Instead, EPA's 2007 Guidance merely indicated its belief that 

the states should make submissions in which they established that they 

have the basic SIP structure necessary to implement, maintain, and 

enforce the NAAQS. EPA believes that states can establish that they 

have the basic SIP structure, notwithstanding that there may be 

potential deficiencies within the existing SIP. Thus, EPA's proposals 

mentioned these issues not because the Agency considers them issues 

that must be addressed in the context of an infrastructure SIP as 

required by section 110(a)(1) and (2), but rather because EPA wanted to 

be clear that it considers these potential existing SIP problems as 

separate from the pending infrastructure SIP actions.

    EPA believes that this approach to the infrastructure SIP 

requirement is reasonable, because it would not be feasible to read 

section 110(a)(1) and (2) to require a top to bottom, stem to stern, 

review of each and every provision of an existing SIP merely for 

purposes of assuring that the state in question has the basic 

structural elements for a functioning SIP for a new or revised NAAQS. 

Because SIPs have grown by accretion over the decades as statutory and 

regulatory requirements under the CAA have evolved, they may include 

some outmoded provisions and historical artifacts that, while not fully 

up to date, nevertheless may not pose a significant problem for the 

purposes of ``implementation, maintenance, and enforcement'' of a new 

or revised NAAQS when EPA considers the overall effectiveness of the 

SIP. To the contrary, EPA believes that a better approach is for EPA to 

determine which specific SIP elements from section 110(a)(2) are 

applicable to an infrastructure SIP for a given NAAQS, and to focus 

attention on those elements that are most likely to need a specific SIP 

revision in light of the new or revised NAAQS. Thus, for



[[Page 44269]]



example, EPA's 2007 Guidance specifically directed states to focus on 

the requirements of section 110(a)(2)(G) for the 1997 PM2.5 

NAAQS because of the absence of underlying EPA regulations for 

emergency episodes for this NAAQS and an anticipated absence of 

relevant provisions in existing SIPs.



    Finally, EPA believes that its approach is a reasonable reading of 

section 110(a)(1) and (2) because the statute provides other avenues 

and mechanisms to address specific substantive deficiencies in existing 

SIPs. These other statutory tools allow the Agency to take appropriate 

tailored action, depending upon the nature and severity of the alleged 

SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP 

call'' whenever the Agency determines that a SIP is substantially 

inadequate to attain or maintain the NAAQS, to mitigate interstate 

transport, or otherwise to comply with the CAA.\13\ Section 110(k)(6) 

authorizes EPA to correct errors in past actions, such as past 

approvals of SIP submissions.\14\ Significantly, EPA's determination 

that an action on the infrastructure SIP is not the appropriate time 

and place to address all potential existing SIP problems does not 

preclude the Agency's subsequent reliance on provisions in section 

110(a)(2) as part of the basis for action at a later time. For example, 

although it may not be appropriate to require a state to eliminate all 

existing inappropriate director's discretion provisions in the course 

of acting on the infrastructure SIP, EPA believes that section 

110(a)(2)(A) may be among the statutory bases that the Agency cites in 

the course of addressing the issue in a subsequent action.\15\

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    \13\ EPA has recently issued a SIP call to rectify a specific 

SIP deficiency related to the SSM issue. See, ``Finding of 

Substantial Inadequacy of Implementation Plan; Call for Utah State 

Implementation Plan Revision,'' 74 FR 21,639 (April 18, 2011).

    \14\ EPA has recently utilized this authority to correct errors 

in past actions on SIP submissions related to PSD programs. See, 

``Limitation of Approval of Prevention of Significant Deterioration 

Provisions Concerning Greenhouse Gas Emitting-Sources in State 

Implementation Plans; Final Rule,'' 75 FR 82,536 (Dec. 30, 2010). 

EPA has previously used its authority under CAA 110(k)(6) to remove 

numerous other SIP provisions that the Agency determined it had 

approved in error. See, e.g., 61 FR 38,664 (July 25, 1996) and 62 FR 

34,641 (June 27, 1997) (corrections to American Samoa, Arizona, 

California, Hawaii, and Nevada SIPs); 69 FR 67,062 (November 16, 

2004) (corrections to California SIP); and 74 FR 57,051 (November 3, 

2009) (corrections to Arizona and Nevada SIPs).

    \15\ EPA has recently disapproved a SIP submission from Colorado 

on the grounds that it would have included a director's discretion 

provision inconsistent with CAA requirements, including section 

110(a)(2)(A). See, e.g., 75 FR 42,342 at 42,344 (July 21, 2010) 

(proposed disapproval of director's discretion provisions); 76 FR 

4,540 (Jan. 26, 2011) (final disapproval of such provisions).

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II. Response to Comments



    EPA received one letter on June 22, 2011 containing comments from 

WildEarth Guardians (WEG), an environmental organization. The 

significant comments made in WEG's June 22, 2011 letter and EPA's 

responses to those comments are given below.

    Comment No. 1: The commenter expressed concern that the Wyoming SIP 

is failing to maintain the 1997 8-hour ozone NAAQS in Sublette County. 

As evidence, the commenter cited data from three monitors in Sublette 

County. The commenter argued that the data establish the Wyoming SIP is 

failing to meet the requirements of CAA section 110(a)(1) and that EPA 

cannot approve the Wyoming infrastructure SIP for the 1997 ozone NAAQS 

as a result.

    EPA Response: EPA disagrees with the commenter's view that the 

monitor data presented by the commenter has a bearing on EPA's action 

on the State's infrastructure SIP submission. First, there are 

currently no nonattainment areas designated in Wyoming for the 1997 8-

hour ozone NAAQS. Thus, the State is not currently under an obligation 

to submit a SIP to meet the requirements of Part D of title I. More 

importantly, as explained in the NPR, Part D requirements are outside 

the scope of this action. EPA therefore disagrees with the assertion 

that, as a result of the cited monitoring data, EPA cannot approve the 

Wyoming infrastructure SIP for the 1997 ozone NAAQS.

    Comment No. 2: The commenter asserted that the Wyoming SIP does not 

meet the monitoring requirements of 40 CFR part 58 for the 1997 8-hour 

ozone NAAQS, and that EPA should therefore disapprove the Wyoming 

infrastructure SIP for element 110(a)(2)(B). The commenter argued that 

because the cities of Casper and Cheyenne each have an urbanized 

population greater than 50,000, both areas are required to have ozone 

monitors under 40 CFR part 58, Appendix D. The commenter concluded 

that, as neither city contains an ozone monitor, Wyoming's SIP does not 

fulfill the requirements of 110(a)(2)(B). The commenter further argued 

that a discussion of monitoring in Pinedale, Casper, Rock Springs, and 

Gillette in a recent Wyoming Monitoring Network Plan demonstrates a 

need for ``a more expansive network'' of ozone monitors in the State.

    EPA Response: EPA disagrees with this commenter's conclusion with 

respect to whether the monitoring network required by the Wyoming SIP 

meets the current requirements. Table D-2 in Appendix D to 40 CFR part 

58 sets the minimum number of required State and Local Air Monitoring 

Stations (SLAMS) for ozone. Footnote 4 to the table explicitly 

indicates that minimum monitoring requirements in the last column 

should apply in the absence of a design value. While both Casper and 

Cheyenne have populations greater than 50,000 (but less than 350,000), 

they lack ozone design values at this time. Therefore, the minimum 

number of required SLAMS monitors for ozone for Casper and Cheyenne is 

zero, and the current monitoring network, with respect to those two 

cities, meets the current requirements of 40 CFR part 58, Appendix D 

for ozone. The 2010 network assessment cited by the commenter and the 

2011 network plan linked to by the commenter do not provide any 

information to the contrary. EPA therefore disagrees with the 

commenter's conclusion that the State's infrastructure SIP is not 

approvable at this time.

    EPA notes, however, that it has proposed revisions to the current 

monitoring requirements for ozone. On July 16, 2009, EPA proposed to 

change the monitoring requirements, in part to insure that smaller 

metropolitan areas with populations between 50,000 and 350,000 that 

currently do not have ozone monitors will get them, in order to assure 

the health benefits of the NAAQS in these areas.\16\ If EPA finalizes 

the proposed revisions to the monitoring requirements, this would help 

to address the concerns of the commenter.

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



    \16\ See, ``Ambient Ozone Monitoring Regulations: Revisions to 

Network Design Requirements,'' 74 FR 34525, at 34527-28 (July 16, 

2009).

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



    Comment No. 3: The commenter expressed concern that monitoring is 

only required from May to September, whereas areas such as Sublette 

County have maximum ozone concentrations in the winter months. The 

commenter argued that EPA must assure the Wyoming SIP requires 

monitoring during the wintertime. According to the commenter, the 

failure to monitor in the winter months would be grounds for 

disapproval of the infrastructure SIP under section 110(a)(2)(B).

    EPA Response: EPA is concerned with the wintertime ozone issues in 

western states. However, with respect to the season during which 

monitoring is currently required, the required ozone monitoring seasons 

are provided in 40 CFR part 58, Appendix D, which currently specifies 

monitoring from May through September. The proposed revision to the 

ozone monitoring



[[Page 44270]]



requirements discussed in the response to comment 2 above would also 

revise the ozone monitoring season for Wyoming (74 FR at 34538). If EPA 

finalizes the proposed revision to the ozone monitoring season for 

Wyoming, the monitoring season will be extended and EPA anticipates 

that this would help to address the underlying concern of the 

commenter. At this point, however, Wyoming complies with the existing 

monitoring season requirements of Appendix D. Thus, the comment gives 

no basis for EPA to change its proposed approval of the Wyoming 

infrastructure SIP for element 110(a)(2)(B) for the 1997 8-hour ozone 

NAAQS.

    Comment No. 4: The commenter expressed concern that Wyoming's title 

V program does not increase permit fees each year in accordance with 

the Consumer Price Index as required by title V of the CAA, citing 42 

U.S.C. 7661a(b)(3)(B)(v) and 40 CFR 70.9(b)(2)(iv). The commenter 

argues that this creates an issue under section 110(a)(2)(L) that 

precludes approval of the State's infrastructure SIP.

    EPA Response: EPA disagrees with this comment. As stated in the 

text of the section, the fees specified in 110(a)(2)(L) are no longer 

applicable to title V operating permit programs after approval of such 

programs. As noted in the NPR, final approval of the title V operating 

permit program became effective April 23, 1999 (64 FR 8523, Feb. 22, 

1990). Therefore, EPA concludes that the Wyoming infrastructure SIP for 

the 1997 8-hour ozone NAAQS meets the requirements of section 

110(a)(2)(L) with respect to the title V program.



III. Final Action



    In this action, EPA is approving the following section 110(a)(2) 

infrastructure elements for Wyoming for the 1997 ozone NAAQS: (A), (B), 

(D)(ii), (E), (F), (G), (H), (K), (L), and (M). EPA is also approving 

Wyoming's May 11, 2011 SIP submittal that revises the State's PSD 

program.

    In this action, EPA is disapproving section 110(a)(2)(C) and (J) 

for the 1997 ozone NAAQS.



IV. Statutory and Executive Order Reviews



    Under the CAA, 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 CAA. Accordingly, this 

action merely approves some state law as meeting Federal requirements 

and disapproves other state law because it does not meet Federal 

requirements; this action 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 Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 

note) because application of those requirements would be inconsistent 

with the CAA; 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 23, 2011. 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.



    Dated: June 30, 2011.

James B. Martin,

Regional Administrator, Region 8.



    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: 2 U.S.C. 7401 et seq.



Subpart ZZ--Wyoming



0

2. Section 52.2620 is amended by:

0

a. In paragraph (c)(1), revising the entry under Chapter 6 for 

``Section 4''.

0

b. In paragraph (e), add an entry for ``XIX'', Section 110(a)(2) 

Infrastructure Requirements for the 1997 8-Hour Ozone NAAQS.





Sec.  52.2620  Identification of plan.



* * * * *

    (c) * * *

    (1) * * *



[[Page 44271]]







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

                                                       State adopted and   EPA approval date

         State Citation              Title/subject      effective date     and  citation\1\      Explanations

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

 

                                                  * * * * * * *

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

                                                    Chapter 6

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

 

                                                  * * * * * * *

Section 4.......................  Prevention of       7/8/10 and 9/7/10.  6/30/11, 7/25/11

                                   Significant                             [Insert page

                                   Deterioration.                          number where the

                                                                           document begins].

 

                                                  * * * * * * *

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

\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.



* * * * *

    (e) * * *



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

                                      Applicable

    Name of nonregulatory SP      geographic or non-    State submittal    EPA approval date      Explanation

            provision               attainment area    date/adopted date   and  citation \3\

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

 

                                                  * * * * * * *

XIX. Section 110(a)(2)            Statewide.........  12/7/2007 and 12/   6/30/11, 7/25/11    ..................

 Infrastructure Requirements for                       10/2007.            [Insert page

 the 1997 8-hour Ozone NAAQS.                                              number where the

                                                                           document begins].

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

\3\ 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. 2011-18423 Filed 7-22-11; 8:45 am]

BILLING CODE 6560-50-P