[Federal Register Volume 78, Number 235 (Friday, December 6, 2013)]
[Rules and Regulations]
[Pages 73445-73449]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-28949]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2011-0728, FRL-9903-58-Region 8]


Disapproval, Approval and Promulgation of Air Quality 
Implementation Plan Revisions; Infrastructure Requirements for the 1997 
and 2006 PM2.5 National Ambient Air Quality Standards; 
Prevention of Significant Deterioration; Wyoming

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

SUMMARY: EPA is partially approving and partially disapproving the 
State Implementation Plan (SIP) submissions from the State of Wyoming 
to demonstrate that the SIP meets the infrastructure requirements of 
the Clean Air Act (CAA) for the National Ambient Air Quality Standards 
(NAAQS) promulgated for fine particulate matter (PM2.5) on 
July 18, 1997 and on October 17, 2006. The CAA requires that each 
state, after a new or revised NAAQS is promulgated, review their SIPs 
to ensure that they meet infrastructure requirements. The State of 
Wyoming provided infrastructure submissions for the 1997 and 2006 
PM2.5 NAAQS on March 26, 2008 and August 19, 2011, 
respectively. EPA is also approving revisions to Wyoming's Prevention 
of Significant Deterioration (PSD) program that incorporate necessary 
provisions from EPA's 2010 PM2.5 Increment Rule.

DATES: This final rule is effective January 6, 2014.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R08-OAR-2011-0728. All documents in the docket are listed on 
the 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 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, 8:00 a.m. 
to 4:00 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Kathy Ayala, 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 initials CBI mean or refer to confidential business 
information.
    (iii) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (iv) The initials NAAQS mean or refer to national ambient air 
quality standards.
    (v) The initials NSR mean or refer to new source review.
    (vi) The initials PM mean or refer to particulate matter.
    (vii) The initials PM 2.5 mean or refer to particulate 
matter with an aerodynamic diameter of less than 2.5 micrometers (fine 
particulate matter).
    (viii) The initials PSD mean or refer to Prevention of Significant 
Deterioration.
    (ix) The initials SIP mean or refer to State Implementation Plan.

Table of Contents

I. Background
II. Response to Comments
III. Final Action
IV. Statutory and Executive Orders Review

I. Background

    Infrastructure requirements for SIPs are provided in sections 
110(a)(l) and (2) of the CAA. Section 110(a)(2) lists the specific 
infrastructure elements that a SIP must contain or satisfy. The 
elements that are the subject of this action are described in detail in 
our notice of proposed rulemaking (NPR), published on September 6, 2013 
(78 FR 54828).
    In the NPR, EPA proposed to approve Wyoming's March 26, 2008 and 
August 19, 2011 submissions for the following infrastructure elements 
for the 1997 and 2006 PM2.5 NAAQS: (A), (B), (C) with 
respect to minor New Source Review (NSR) and PSD requirements, (D)(ii), 
(E)(i), (E)(iii), (F), (G), (H), (J), (K), (L), and (M). We also 
proposed to approve revisions to the Wyoming Air Quality Standards and 
Regulations (WAQSR), Chapter 6, Section 4, as submitted on May 24, 
2012, which incorporate the requirements of the 2010 PM2.5 
Increment Rule; specifically, revisions to: Chapter 6, Section 4 (a) 
Definitions of ``Baseline area,'' ``Major source baseline date,'' and 
``Minor source baseline date''; Chapter 6, Section 4(b)(i)(A)(I) Table 
1; Chapter 6, Section 4(b)(viii); and Section 14. The reasons for our 
approval are provided in detail in the NPR. We have also separately 
completed our proposed action of June 24, 2013, 78 FR 37752, approving 
Wyoming's March 8, 2013 submittal to regulate greenhouse gases under 
Wyoming's PSD program and concurrently rescinding our corresponding 
federal implementation plan. With these updates to the State's approved 
PSD program, Wyoming's infrastructure submissions for the 1997 and 2006 
PM2.5 NAAQS are approvable with respect to the PSD 
requirements in infrastructure elements (C) and (J).
    For reasons explained in the NPR, EPA proposed to disapprove 
Wyoming's March 26, 2008 and August 19, 2011 submittals for the section 
110(a)(2)(E)(ii) infrastructure element, related to CAA section 128, 
State Boards, for the 1997 and 2006 PM2.5 NAAQS. EPA is 
taking no action at this time on infrastructure element (D)(i), which 
concerns interstate transport of pollutants, for the 2006 
PM2.5 NAAQS.

II. Response to Comments

    We received one set of comments from the Wyoming Department of 
Environmental Quality (DEQ). DEQ supported our proposed approval of 
Wyoming's infrastructure submissions for the 1997 and 2006 
PM2.5 NAAQS for elements (A), (B), (C) with respect to minor 
NSR and PSD requirements, (D)(ii), (E)(i), (E)(iii), (F), (G), (H), 
(J), (K), (L), and (M). However, DEQ took issue with certain aspects of 
our action.
    Comment: DEQ states that EPA, in our proposal notice, summarized, 
and in some cases incorrectly stated, the references within the 
infrastructure SIP submittals to various regulatory and non-regulatory 
provisions. DEQ asked that EPA ``correct the citations'' in the 
summaries ``to ensure accuracy and maintain consistency'' between EPA's 
notices and Wyoming's submittals.
    Response: EPA disagrees with certain portions of this comment. In 
our proposal notice, the summaries of the state's submittals were 
merely meant to be descriptive in general terms. For the

[[Page 73446]]

most part, these summaries accurately stated that the infrastructure 
SIP submittals cited provisions ``included'' in various chapters of the 
WAQSR. By this, we meant the submittals had cited certain provisions 
included within the chapters; we did not mean that the submittals cited 
the entire chapter. The summaries did not identify any particular 
provisions with those Chapters as legally relevant. Instead, our 
separate analysis for each element explained which provisions were 
relevant in meeting requirements of specific elements. EPA notes that 
the infrastructure SIP submittals (which are included in the docket for 
this rulemaking) speak for themselves and EPA does not need to 
reproduce them verbatim (or the exact citations within them).
    EPA does agree that, in a few instances, DEQ correctly notes that 
EPA erred in its summary. For element (B), DEQ is correct that the 
submittals did not cite any provisions within Chapter 1 of the WAQSR. 
For element (F), the proposal notice omitted a comma, making it appear 
that the submittals cited 1979 versions of certain provisions in 
Chapters 6 and 7, instead of the current versions. For element (H), 
although EPA did not include in our summary all the provisions cited in 
the submittals, EPA did reference the cited provisions in our analysis. 
For the public notification requirements in element (J), DEQ is correct 
that the submittals described a document as ``non-regulatory.'' For 
element (K), EPA agrees that DEQ's description of the submittal is 
correct. None of these minor corrections to our summaries in any way 
changes or modifies EPA's analysis of how the submittals for the 1997 
and 2006 PM2.5 NAAQS substantively met infrastructure 
requirements. As a result, these minor corrections do not change our 
proposed action on the submittals.
    Comment: DEQ requested that EPA add approval language specifically 
citing elements (E)(i) and (E)(iii) in our final rule.
    Response: EPA has examined the proposal to be sure that we 
adequately addressed these elements in our proposal. Although we did 
not specifically cite elements (E)(i) and (E)(iii) in our paragraph 
analyzing Wyoming's submittal, the paragraph introducing our 
description and analysis of Wyoming's submittal cited (and in fact 
quoted) those two elements. In context, the introductory paragraph 
makes clear that the description and analysis address elements (E)(i) 
and (E)(iii). Furthermore, in section VI of our proposal notice, we 
specifically stated that we proposed to approve the infrastructure SIP 
submittals for the 1997 and 2006 PM2.5 NAAQS for (among 
others) elements (E)(i) and (E)(iii). Finally, to ensure that our 
approval of these elements is clear, the notice for this final action 
specifically states that we are approving the submittals for (among 
others) elements (E)(i) and (E)(iii).
    Comment: DEQ requested that EPA remove our discussion of the 
State's minor NSR program from the final approval of the infrastructure 
SIP submissions. DEQ stated that the minor NSR program in WAQSR Chapter 
6, Section 2 is an approved program and is not at issue in an 
infrastructure SIP action. DEQ stated that the reference to WAQSR 
Chapter 6, Section 2 is outside the scope of EPA's action on the 
submissions.
    Response: EPA disagrees with this comment. First, we note that DEQ, 
in both of its infrastructure submissions, specifically cited WAQSR 
Chapter 6, Section 2 as part of how the Wyoming SIP addresses 
infrastructure element (C). It is appropriate for EPA, in acting on an 
infrastructure SIP submission, to assess the State's own description of 
how the State's SIP meets infrastructure requirements, and as we next 
explain, it was appropriate for the State in addressing element (C) to 
cite the minor NSR program.
    Second, in this action on Wyoming's infrastructure submittals for 
the 1997 and 2006 PM2.5 NAAQS, EPA appropriately assessed 
whether Wyoming's approved minor NSR program addressed regulation of 
PM2.5 for sources subject to the program. EPA's position is 
that an infrastructure SIP submittal should demonstrate that the state 
has a minor NSR program to regulate the construction of new or modified 
stationary sources that can address the new or revised NAAQS that 
triggered the State's obligation to submit an infrastructure SIP. This 
position follows from the language of sections 110(a)(1) and (a)(2).
    Section 110(a)(1) of the Act requires states, within three years of 
EPA's promulgation of a new or revised NAAQS, to submit ``a plan which 
provides for implementation, maintenance, and enforcement'' of the 
standards. This plan, which EPA refers to as an ``infrastructure SIP,'' 
must at a minimum satisfy the applicable requirements set out in the 
elements in section 110(a)(2) of the Act.
    In particular, element 110(a)(2)(C) requires, among other things, 
that SIPs include ``regulation of the modification and construction of 
any stationary source within the areas covered by the plan as necessary 
to assure that [the NAAQS] are achieved.'' The program for regulation 
of modification of stationary sources is known as ``minor NSR,'' and 
the requirements for minor NSR programs are contained in Subpart I of 
Part 51 in Title 40 of the Code of Federal Regulations (CFR). Given the 
language of element 110(a)(2)(C), it is necessary to conclude that an 
infrastructure SIP submittal must address the triggering new or revised 
NAAQS.
    Comment: DEQ noted that EPA had not acted on Wyoming's May 11, 2011 
submittal, which (among other things) added Section 13 to Chapter 6 of 
the WAQSR. DEQ stated it was concerned about ``future inconsistency in 
the GHG PSD permitting regulations.'' DEQ also stated, ``The State of 
Wyoming will experience additional harm if a construction ban goes into 
effect on January 20, 2014 without EPA approval of the May 11, 2011 
SIP.''
    Response: EPA disagrees with the concerns expressed by DEQ. First, 
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 added 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. In this action, we are approving a 
subsequent revision of Section 14 that supersedes the version of 
Section 14 in the May 11, 2011 submittal. Thus, the only remaining 
portion of the May 11, 2011 submittal that remains to be acted upon is 
the addition of Section 13, which addresses nonattainment NSR 
requirements.
    First, DEQ has not identified how nonattainment NSR requirements 
are relevant to EPA's action on an infrastructure SIP submittal. As 
stated in our proposal notice (and not disputed by DEQ), nonattainment 
area plan requirements under part D of title I of the Act, including 
the requirement in 110(a)(2)(C) for a permit program as required by 
part D of title I (i.e., nonattainment NSR), are not governed by the 
three year submission deadline in section 110(a)(1). Instead, 
nonattainment NSR requirements are due at the same time as other 
nonattainment area plan requirements are due under the Act. As a 
result, nonattainment NSR requirements are outside the scope of this 
action on

[[Page 73447]]

Wyoming's infrastructure SIP submittals.
    Second, it does not appear that our action on Wyoming's 
infrastructure SIP submittals and on Wyoming's adoption of the 
PM2.5 increments could result in an inconsistency in GHG PSD 
permitting. We have separately completed our proposed approval of 
Wyoming's March 8, 2013 GHG PSD submittal. With respect to Section 13 
of Chapter 6, DEQ did not identify any specific dependency between it 
and the March 8, 2013 GHG PSD submittal or the May 24, 2012 
PM2.5 increment 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.
    Third, DEQ has not identified any reason why EPA's inaction on the 
Section 13 portion of the May 11, 2011 submittal would cause a 
construction ban to take effect on January 20, 2014. We note that, on 
May 21, 2012, EPA designated the Upper Green River Basin Area in 
Wyoming as marginal nonattainment for the 2008 ozone standard, 
effective July 20, 2012. See 77 FR 30517-30518. Although DEQ does not 
explain how it derived its January 20, 2014 date, that date is 18 
months after the effective date of the designation of the Upper Green 
River Basin Area.
    Under 40 CFR 52.24(k), after designation of a nonattainment area 
and prior to EPA's approval of a nonattainment NSR program that meets 
the requirements of part D of title I of the CAA, the Emission Offset 
Interpretative Ruling, 40 CFR part 51, appendix S governs permits to 
construct. As stated in EPA's June 6, 2013 proposed rule for 
implementation of the 2008 ozone standards, 78 FR 34200-201, in EPA's 
2005 promulgation of the phase 2 implementation rule for the 1997 ozone 
NAAQS, ``the EPA revised section 52.24(k) to eliminate language stating 
that if a nonattainment area did not have an approved nonattainment NSR 
program within 18 months after designation, a construction ban would 
apply.'' The June 6, 2013 proposal explains that the DC Circuit Court 
of Appeal's decision in NRDC v. EPA, 571 F.3d 1245 (D.C. Cir. 2009) 
left this revision of Sec.  52.24(k) undisturbed, except with respect 
to the availability of waivers under section VI of Appendix S after the 
18-month period has expired. Thus, DEQ's concerns about a construction 
ban are unnecessary, as Appendix S to 40 CFR part 51 (with the 
exception of waivers under section VI of Appendix S after January 20, 
2014) governs construction permits within the Upper Green River Basin 
Area until EPA approves a SIP revision containing a nonattainment NSR 
program that meets the requirements of part D of title I of the Act, 
specifically requirements contained in 40 CFR 51.165.

III. Final Action

    EPA is approving Wyoming's March 26, 2008 and August 19, 2011 
submittals for the following infrastructure elements for the 1997 and 
2006 PM2.5 NAAQS: (A), (B), (C) with respect to minor NSR 
and PSD requirements, (D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J), 
(K), (L), and (M). EPA is also approving revisions to WAQSR Chapter 6, 
Section 4, as submitted on May 24, 2012, which incorporate the 
requirements of the 2010 PM2.5 Increment Rule; specifically, 
revisions to: Chapter 6, Section 4(a) Definitions of ``Baseline area'', 
``Major source baseline date'', and ``Minor source baseline date''; 
Chapter 6, Section 4(b)(i)(A)(I) Table 1, Chapter 6, Section 
4(b)(viii), and Section 14.
    EPA is disapproving Wyoming's March 26, 2008 and August 19, 2011 
submittals for the section 110(a)(2)(E)(ii) infrastructure element, 
related to CAA section 128, State Boards, for the 1997 and 2006 
PM2.5 NAAQS. Finally, EPA is taking no action on 
infrastructure element (D)(i) for the 2006 PM2.5 NAAQS.

IV. Statutory and Executive Orders Review

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves some state law as meeting 
Federal requirements and disapproves other state law as not meeting 
Federal requirements; it 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 Clean Air Act; and
     does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because Wyoming's SIP does not apply in Indian country, 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 February 4, 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,

[[Page 73448]]

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: November 15, 2013.
Judith Wong,
Acting Regional Administrator, Region 8.
    40 CFR part 52 is amended 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 ZZ--Wyoming

0
2. Section 52.2620 is amended by:
0
a. The table in paragraph (c)(1):
0
i Under Chapter 6, revise the entry for Section 4.
0
ii. Under Chapter 6, add the entry for Section 14.
0
b. The table in paragraph (e), add the entries XXI and XXII at the end 
of the table.
    The amendments read as follows:


Sec.  52.2620  Identification of plan.

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

----------------------------------------------------------------------------------------------------------------
                                                         State adopted
          State citation              Title/subject      and effective  EPA  approval  date      Explanations
                                                             date        and  citation \1\
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                                    Chapter 6
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 4........................  Prevention of            1/13/2012,  12/6/13 [insert      ...................
                                    significant              3/28/2012   Federal Register
                                    deterioration.                       page number where
                                                                         document begins].
Section 14.......................  Incorporation by         1/13/2012,  12/6/13 [insert      ...................
                                    reference.               3/28/2012   Federal Register
                                                                         page number where
                                                                         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           State
    Name of nonregulatory SIP       geographic or non-  submittal date/  EPA approval date       Explanations
            provision                attainment area     adopted date     and citation\3\
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
XXI. Section 110(a)(2)             Statewide..........       3/26/2008  12/6/13 [insert      Element (E)(ii) is
 Infrastructure Requirements for                                         Federal Register     disapproved.
 the 1997 PM 2.5 NAAQS.                                                  page number where
                                                                         document begins].
XXII. Section 110(a)(2)            Statewide..........       8/19/2011  12/6/13 [insert      Element (E)(ii) is
 Infrastructure Requirements for                                         Federal Register     disapproved.
 the 2006 PM2.5 NAAQS.                                                   page number where
                                                                         document begins].
----------------------------------------------------------------------------------------------------------------
\3\ In order to determine the EPA effective date for a specific provision listed in this table, consult the
  Federal Register notice cited in this column for the particular provision.


[[Page 73449]]

* * * * *
[FR Doc. 2013-28949 Filed 12-5-13; 8:45 am]
BILLING CODE 6560-50-P