[Federal Register Volume 78, Number 226 (Friday, November 22, 2013)]
[Rules and Regulations]
[Pages 69998-70001]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-27997]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2013-0417; FRL 9902-13-R08]


Approval and Promulgation of Air Quality Implementation Plans; 
Rescission of Federal Implementation Plan; Wyoming; Prevention of 
Significant Deterioration; Greenhouse Gas Tailoring Rule Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving revisions and additions to the Wyoming State 
Implementation Plan (SIP) submitted by the Wyoming Department of 
Environmental Quality (WDEQ) to EPA on March 8, 2013. The SIP revision 
to the Wyoming Prevention of Significant Deterioration (PSD) program 
updates the program to regulate permitting of sources of greenhouse 
gases (GHGs). Specifically, we are approving revisions to Wyoming's Air 
Quality Standards and Regulations (WAQSR) Chapter 1, Common Provisions, 
Section 3, Definitions, and Chapter 6, Permitting Requirements, Section 
4, Prevention of Significant Deterioration, and the addition of Chapter 
1, Section 7, Greenhouse Gases. EPA is also rescinding the GHG PSD 
Federal Implementation Plan (FIP) for Wyoming that was put in place to 
ensure the availability of a permitting authority for GHG PSD 
permitting in Wyoming. EPA is taking this final action under section 
110 and part C of the Clean Air Act (the Act or CAA).

DATES: This action is effective on December 23, 2013.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R08-OAR-2013-0417. All documents in the docket are listed in 
the www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the Air Program, 
Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop St., 
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, 8:00 a.m. to 4:00 p.m., excluding 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Jody Ostendorf, Air Program, Mailcode 
8P-AR, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop 
St., Denver, Colorado 80202-1129, (303) 312-7814, 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. Information is organized as 
follows:

Table of Contents

I. Background for Our Final Action
II. Response to Comments
III. What final action is EPA taking?
IV. Statutory and Executive Order Reviews

I. Background for Our Final Action

    The background for today's final rule and EPA's national actions 
pertaining to PSD permitting of sources of GHGs are discussed in detail 
in our June 24, 2013 proposal (see 78 FR 37752). The comment period was 
open for thirty days, and one comment, from WDEQ, was received.

II. Response to Comments

    Comment: The WDEQ supported our proposed approval of Wyoming's 
March 8, 2013 GHG PSD submittal and concurrent rescission of our FIP. 
However, WDEQ requested that we propose action on the State's May 11, 
2011 SIP submittal (which generally concerned New Source Review 
regulations for non-attainment areas) in parallel or as close as 
possible to final approval of the March 8, 2013 GHG PSD submittal. WDEQ 
stated it was concerned about future inconsistency in the GHG PSD 
permitting regulations.
    Response: EPA acknowledges WDEQ's support for our final approval. 
It does not appear that our final approval could result in some 
inconsistency in light of the fact that we are not, at the same time, 
proposing action on the May 11, 2011 submittal. EPA has already 
approved the portion of the May 11, 2011 submittal that revised the 
State's PSD program. See 76 FR 44265 (July 25, 2011). The remaining 
portion of the May 11, 2011 submittal adds two new sections to 
Wyoming's permitting rules. Section 13, entitled ``Nonattainment permit 
requirements,'' incorporates by reference federal rules at 40 CFR 
51.165. Section 14, entitled ``Incorporation by reference,'' 
establishes the date of incorporation by reference of federal rules and 
provides information on how the public can inspect or obtain copies of 
the Code of Federal Regulations. We proposed to approve the May 11, 
2011 addition of Section 14 in a separate action that will be completed 
concurrently with this one. In addition, the GHG revision to Section 4 
independently provides a date of incorporation by reference and 
identical information to Section 14 about the Code of Federal 
Regulations. With respect to Section 13, WDEQ did not identify any 
specific dependency between it and the March 8, 2013 GHG PSD submittal 
that would cause any future inconsistency in GHG permitting. In 
addition, the March 8, 2013 GHG PSD submittal did not include Section 
13, so it appears to EPA that the two are independent.

III. What final action is EPA taking?

    We are approving portions of Wyoming's March 8, 2013 SIP submittal 
that update the PSD program to regulate permitting of sources of GHGs. 
Specifically, EPA is approving revisions to WAQSR Chapter 1, Common 
Provisions, Section 3, and Chapter 6, Permitting Requirements, Section 
4, Prevention of Significant Deterioration, and the addition of Chapter 
1, Common Provisions, Section 7, Greenhouse Gases. EPA has determined 
that these March 8, 2013 revisions are approvable because they were 
adopted and submitted in accordance with the CAA and EPA regulations 
regarding PSD permitting for GHGs. As explained in the June, 24, 2013 
proposal, we are not taking action at this time on the revision to 
Chapter 6, Permitting Requirements, Section 14, Incorporation by 
Reference.
    In our June 24, 2013 action, we proposed to approve a portion of 
the SIP revision that deferred until July 21, 2014 application of the 
PSD permitting requirements to biogenic carbon dioxide (CO2) 
emissions from bioenergy and other biogenic stationary sources. This 
portion of the SIP revision was included to align Wyoming's state 
regulations with EPA's July 20, 2011 Biomass Deferral Rule. However, on 
July 12, 2013 the U.S. Court of Appeals for the DC Circuit vacated 
EPA's deferral rule for biogenic CO2, stating that EPA is 
not authorized under the CAA to temporarily exempt such emissions from 
the PSD program. In light of the court's action, on July 31, 2013 
Wyoming sent EPA a letter requesting that we not act on the deferral 
rule portion of their submittal.
    As explained in our June, 24, 2013 proposal (see 78 FR 37752), as a 
result

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of today's action we are also rescinding the GHG PSD FIP for Wyoming at 
40 CFR 52.37(b)(6). Therefore, as of the effective date of this final 
rule, the EPA will no longer be the PSD permitting authority for GHG-
emitting sources in Wyoming.
    In a July 31, 2013 letter to EPA, the State requested approval to 
exercise its authority to administer the PSD program with respect to 
those sources that have existing PSD permits issued by EPA, including 
authority to conduct general administration of these existing permits, 
authority to process and issue any and all subsequent PSD permit 
actions relating to such permits (e.g., modifications, amendments, or 
revisions of any nature), and authority to enforce such permits. 
Pursuant to the criteria in section 110(a)(2)(E)(i) of the CAA, we have 
determined that the State has the authority, personnel, and funding to 
implement the PSD program for existing EPA-issued permits and we are 
therefore transferring authority for such permits to the State 
concurrent with the effective date of EPA's approval of the State's PSD 
program into the SIP.\1\ The two companies with EPA-issued permits that 
will be transferred to the State are Cheyenne Prairie and Sinclair. EPA 
has already provided a copy of each such permit to the State and 
notified the permit holders of the transfer.
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    \1\ The details of our determination are provided in a 
memorandum in the docket.
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    EPA will retain PSD permit implementation authority for those 
specific sources within the State that have submitted PSD permit 
applications to EPA and for which EPA has issued a proposed PSD permit 
decision, but for which final agency action and/or the exhaustion of 
all administrative and judicial appeals processes (including any 
associated remand actions) have not yet been concluded or completed 
upon the effective date of EPA's final SIP approval action. The State 
intends to assume full PSD responsibility for the administration and 
implementation of such PSD permits upon notification from EPA that all 
administrative and judicial appeals processes and any associated remand 
actions have been completed or concluded for any such permit 
application. We will act on their delegation request at that point.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866--Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993); and is 
therefore, not subject to review under Executive Orders 12866 and 13563 
(76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
because this SIP approval and FIP rescission under section 110 and part 
C of the Clean Air Act will not in-and-of itself create any new 
information collection burdens but simply transfers the permitting 
authority from EPA to the State. Burden is defined at 5 CFR 1320.3(b). 
Because this final action does not impose an information collection 
burden, the Paperwork Reduction Act does not apply.

C. Regulatory Flexibility Act

    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 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.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business as defined 
by the Small Business Administration's (SBA) regulations at 13 CFR 
121.201; (2) a small governmental jurisdiction that is a government of 
a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    This rule will transfer the permitting responsibility of GHG 
emissions from EPA to the State of Wyoming. This final rule will lead 
to permitting requirements for certain sources of GHG emissions; 
however, these sources are large emitters of GHGs and tend to be large 
sources. Further, this rule will not have a significant impact on a 
substantial number of small entities because SIP approvals under 
section 110 and part C of the Clean Air Act do not create any new 
requirements but simply approve requirements that are already being 
imposed under federal and state regulations. After considering the 
economic impacts of this rule on small entities, I certify that this 
action will not have a significant economic impact on a substantial 
number of small entities. This final rule will not impose any 
requirements on small entities.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for State, local, or tribal governments or the private 
sector. This action imposes no enforceable duty on any state, local or 
tribal governments or the private sector. Therefore, this action is not 
subject to the requirements of sections 202 or 205 of the UMRA.
    This action is also not subject to the requirements of section 203 
of UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. This action 
transfers the permitting responsibility of GHG emissions from EPA to 
the State of Wyoming. Small governments are not impacted.

E. Executive Order 13132--Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on Wyoming, on the relationship between the 
national government and the State of Wyoming, or on the distribution of 
power and responsibilities among the various levels of government, as 
specified in Executive Order 13132. The CAA specifies conditions under 
which states may request, and EPA may approve state implementation of 
CAA requirements. This rulemaking approves PSD permitting provisions in 
the State of Wyoming for GHG emissions, and as a consequence of the SIP 
approval, simultaneously rescinds federal PSD permitting responsibility 
for GHG emissions in Wyoming. This rulemaking is pursuant to the SIP 
approval and requirements of the CAA. As such, this final rule does not 
change the balance of power between Wyoming and EPA as provided for in 
the CAA. Thus, Executive Order 13132 does not apply to this action.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and state and local 
governments, EPA specifically solicited comment on the proposed action 
from state and local officials. EPA received no comments

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from state or local governments on this rulemaking other than from the 
WDEQ.

F. Executive Order 13175--Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). In this action, 
EPA is not addressing any Tribal Implementation Plans. This action is 
limited to Wyoming's SIP, which does not apply in Indian country. Thus, 
Executive Order 13175 does not apply to this action.

G. Executive Order 13045--Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying 
only to those regulatory actions that concern health or safety risks, 
such that the analysis required under section 5-501 of the EO has the 
potential to influence the regulation. This action is not subject to EO 
13045 because EPA is approving revisions to the Wyoming SIP for 
permitting of GHG emissions, as authorized by the CAA.

H. Executive Order 13211--Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards. This action 
does not involve technical standards. Therefore, EPA did not consider 
the use of any voluntary consensus standards.

J. Executive Order 12898--Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it increases the 
level of environmental protection for all affected populations without 
having any disproportionately high and adverse human health or 
environmental effects on any population, including any minority or low-
income population. This final rule approves the Wyoming SIP as meeting 
Federal requirements for GHG PSD permitting and transfers authority to 
the State for permitting GHG emissions subject to PSD requirements; it 
imposes no additional requirements beyond those imposed by Wyoming 
law.K. Congressional Review Act
    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).

L. 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 January 21, 2014. 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, Intergovernmental 
relations, Reporting and recordkeeping requirements, and Incorporation 
by reference.

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

    Dated: November 14, 2013.
Gina McCarthy,
Administrator, U.S. EPA.

    40 CFR part 52 is amended to read as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart A--General Provisions


Sec.  52.37  [Amended]

0
2. Section 52.37 is amended by removing and reserving paragraph (b)(6).

Subpart ZZ--Wyoming

0
3. Section 52.2620, the table in paragraph (c)(1) is amended by:
0
a. Under Chapter 1, revise the entry for Section 3;
0
b. Under Chapter 1, add the entry for Section 7; and
0
c. Under Chapter 6, revise the entry for Section 4.
    The addition and revisions 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         Explanations
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                                                    Chapter 1
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                                                 * * * * * * *
Section 3....................  Definitions.....  10/5/12, 2/14/13......  11/22/13, [insert
                                                                          Federal Register
                                                                          page number where
                                                                          document begins].
 
                                                  * * * * * * *
Section 7....................  Greenhouse gases  10/5/12, 2/14/13......  11/22/13, [insert
                                                                          Federal Register
                                                                          page number where
                                                                          document begins].
 
                                                  * * * * * * *
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                                                    Chapter 6
----------------------------------------------------------------------------------------------------------------
                                                  * * * * * * *
Section 4....................  Prevention of     10/5/12, 2/14/13......  11/22/13, [insert
                                significant                               Federal Register
                                deterioration.                            page number where
                                                                          document begins].
 
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[FR Doc. 2013-27997 Filed 11-21-13; 8:45 am]
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