[Federal Register Volume 81, Number 40 (Tuesday, March 1, 2016)]
[Proposed Rules]
[Pages 10559-10562]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-04403]


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 ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2016-0014; FRL-9943-01-Region 8]


Approval and Promulgation of Air Quality Implementation Plans; 
Wyoming; Revisions to Wyoming Air Quality Standards and Regulations; 
Chapter 6, Permitting Requirements, Section 13, Nonattainment New 
Source Review Permit Requirements, and Section 14, Incorporation by 
Reference

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve State Implementation Plan (SIP) revisions submitted by the 
State of Wyoming on November 6, 2015. This submittal revises the 
Wyoming Air Quality Standards and Regulations (WAQSR) that pertain to 
the issuance of Wyoming air quality permits for major sources in 
nonattainment areas. This action is being taken under section 110 of 
the Clean Air Act (CAA).

DATES: Written comments must be received on or before March 31, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2016-0014 at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e., on the Web, cloud, or other 
file sharing system). For additional submission methods, the full EPA 
public comment policy, information about CBI or multimedia submissions, 
and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Kevin Leone, Air Program, U.S. 
Environmental Protection Agency

[[Page 10560]]

(EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop Street, Denver, Colorado 
80202-1129, (303) 312-6227, [email protected].

SUPPLEMENTARY INFORMATION: 

I. General Information

What should I consider as I prepare my comments for EPA?

    1. Submitting Confidential Business Information (CBI). Do not 
submit CBI to EPA through http://www.regulations.gov or email. Clearly 
mark the part or all of the information that you claim to be CBI. For 
CBI information on a disk or CD ROM that you mail to EPA, mark the 
outside of the disk or CD ROM as CBI and then identify electronically 
within the disk or CD ROM the specific information that is claimed as 
CBI. In addition to one complete version of the comment that includes 
information claimed as CBI, a copy of the comment that does not contain 
the information claimed as CBI must be submitted for inclusion in the 
public docket. Information so marked will not be disclosed except in 
accordance with procedures set forth in 40 CFR part 2.
    2. Tips for preparing your comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register volume, 
date, and page number);
     Follow directions and organize your comments;
     Explain why you agree or disagree;
     Suggest alternatives and substitute language for your 
requested changes;
     Describe any assumptions and provide any technical 
information and/or data that you used;
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced;
     Provide specific examples to illustrate your concerns, and 
suggest alternatives;
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats; and,
     Make sure to submit your comments by the comment period 
deadline identified.

II. Background

    In this proposed rulemaking, we are proposing to take action to 
approve the addition of Chapter 6, Section 13, Nonattainment permit 
requirements, and updated Section 14, Incorporation by reference, WAQSR 
to the Wyoming SIP. These provisions were submitted by the Wyoming 
Department of Environmental Quality (WDEQ) on November 6, 2015, to 
address certain CAA requirements related to ozone nonattainment areas.
    On March 27, 2008, EPA promulgated a revised National Ambient Air 
Quality Standard (NAAQS) for ozone with an 8-hour concentration limit 
of 0.075 parts per million (``8-Hour Ozone NAAQS''). Effective July 20, 
2012, EPA designated the Upper Green River Basin (UGRB) area of Wyoming 
as ``nonattainment'' for the 8-Hour Ozone NAAQS. For nonattainment 
areas, states are required to submit SIP revisions, including a 
nonattainment NSR permitting program for the construction and operation 
of new or modified major stationary sources located in the 
nonattainment area.
    On May 10, 2011, before the formal designation of the UGRB area as 
nonattainment for the 8-Hour Ozone NAAQS, the WDEQ submitted a 
nonattainment new source review (NSR) permitting program SIP revision 
to EPA. This new section incorporated by reference 40 Code of Federal 
Regulations (CFR) section 51.165 in its entirety, with the exception of 
paragraphs (a) and (a)(1), into Wyoming's Chapter 6 Permitting 
Requirements. On February 20, 2015 (80 FR 9194), EPA took final action 
to disapprove the portion of Wyoming's May 10, 2011 submittal that 
added this new section to the permitting requirements in WAQSR Chapter 
6. As explained in 80 FR 9194, the method Wyoming used to create a 
nonattainment NSR program was not consistent with the CAA and EPA 
regulations.
    Our final disapproval started a two-year clock under CAA section 
110(c)(1) for our obligation to promulgate a federal implementation 
plan (FIP) to correct the deficiency and the 18-month clock for 
sanctions, as required by CAA section 179(a)(2). These deadlines will 
be removed when we approve a SIP revision addressing the deficiency in 
Wyoming's nonattainment NSR permitting requirements.
    The SIP revisions submitted by the WDEQ on November 6, 2015, 
involve Chapter 6, Permitting Requirements, Section 13, Nonattainment 
new source review permit requirements, and Section 14, Incorporation by 
reference. Chapter 6, Section 13, Nonattainment new source review 
permit requirements, establishes specific nonattainment new source 
review permitting requirements. In this revision, the WDEQ has 
incorporated federal regulatory language--establishing permitting 
requirements for new and modified major stationary sources in a 
nonattainment area--from 40 CFR 51.165 and reformatted it into state-
specific language that effectively imposes requirements on sources in 
Wyoming. Additionally, the WDEQ has revised language within the rule to 
maintain consistency with the State's Prevention of Significant 
Deterioration (PSD) regulations (WAQSR Chapter 6, Section 4). In 
addition to the revisions to Chapter 6, Section 13, the November 6, 
2015, submittal also updates Chapter 6, Section 14, Incorporation by 
reference, to adopt by reference from the July 1, 2014, CFR. The State 
previously submitted SIP revisions for Chapter 6, Section 14 on May 28, 
2015 that requested adoption by reference of the CFR that came after 
July 1, 2013. This action requests an update to those revisions.

III. What is the State process to submit these materials to EPA?

    Section 110(k) of the CAA addresses EPA's actions on submissions of 
revisions to the SIP. The CAA requires states to observe certain 
procedural requirements in developing SIP revisions for submittal to 
EPA. Sections 110(a)(2) and 110(l) of the CAA requires that each SIP 
revision be adopted after reasonable notice and public hearing. This 
must occur prior to the revision being submitted by the state to EPA.
    For the November 6, 2015, submittal, the Wyoming Environmental 
Quality Council (WEQC) conducted a public hearing on September 9, 2015 
to hear proposed revisions to the WAQSR from the WDEQ, including the 
addition of Chapter 6, Section 13, Nonattainment new source review 
permitting requirements, and Section 14, Incorporation by reference. A 
notice for submitting written comments on the WDEQ proposed revisions 
was published on July 14, 2015 and the public comment period ended on 
August 31, 2015. After reviewing comments received, the WEQC approved 
the proposed revisions on September 9, 2015. The State has met the 
procedural requirements for submittal of this SIP revision.

IV. What are the changes that EPA is proposing to approve?

    EPA is proposing to approve the portion of Wyoming's November 6, 
2015 submittal that adds a new section to the permitting requirements 
in WAQSR Chapter 6. As mentioned in Section I of this rulemaking, 
Wyoming's new Chapter 6, Section 13, incorporated federal regulatory 
language--establishing permitting requirements for new and modified 
major stationary sources in a nonattainment area--from

[[Page 10561]]

40 CFR 51.165 and reformatted it into state-specific language that 
effectively imposes requirements on sources in Wyoming. The submittal 
also updated Chapter 6, Section 14, Incorporation by reference.
    Section 51.165 in title 40 of the CFR (Permit Requirements) sets 
out the minimum plan requirements states are to use in developing 
nonattainment NSR permitting programs. Generally, 40 CFR 51.165 
consists of a set of definitions for use in state programs, minimum 
plan requirements for procedures for determining applicability of 
nonattainment new source review and for the use of offsets, and minimum 
plan requirements regarding other source obligations, such as 
recordkeeping.
    Specifically, subparagraphs 51.165(a)(1)(i) through (xlvi) 
enumerate a set of definitions which states must either use or replace 
with definitions that a state demonstrates are more stringent or at 
least as stringent in all respects. Subparagraph 51.165(a)(2) sets 
minimum plan requirements for procedures to determine the applicability 
of the nonattainment new source review program to new and modified 
sources. Subparagraph 51.165(a)(3), (a)(9) and (a)(11) set minimum plan 
requirements for the use of offsets by sources subject to nonattainment 
new source review requirements. Subparagraphs (a)(8) and (a)(10) regard 
precursors, and subparagraphs (a)(6) and (a)(7) regard recordkeeping 
obligations. Subparagraph 51.165(a)(4) allows nonattainment new source 
review programs to treat fugitive emissions in certain ways. 
Subparagraph 51.165(b) sets minimum plan requirements for new major 
stationary sources and major modifications in attainment and 
unclassifiable areas that would cause or contribute to violations of 
the NAAQS. Finally, subparagraph 51.165(f) sets minimum plan 
requirements for the use of plant-wide applicability limitations. 
Please refer to the docket to view a cross-walk table which outlines 
how Wyoming's Chapter 6, Section 13 rules correlate with the 
requirements of 40 CFR 51.165.
    As explained in detail in our prior disapproval, the May 10, 2011 
submittal, by directly incorporating by reference in its entirety 40 
CFR 51.165, incorporated language such as ``the plan shall provide'' 
and ``the plan may provide.'' As a result, the May 10, 2011 submittal 
did not clearly and unambiguously create obligations for the sources 
that should be subject to nonattainment NSR requirements. In addition, 
the May 10, 2011 submittal incorporated language from 40 CFR 51.165 
such as ``the plan shall include enforceable procedures''; 
incorporating this language left the procedures unspecified. Finally, 
the May 10, 2011 submittal created some inconsistencies with Wyoming's 
existing approved minor NSR and PSD programs. First, some exemptions 
for specific source categories that have been approved for the minor 
NSR program became applicable to nonattainment NSR, which is not 
allowed. Second, the requirement for best available control technology 
(BACT) in the minor NSR program became applicable to the nonattainment 
NSR program instead of the appropriate requirement for lowest 
achievable emission rate (LAER). Third, the submittal did not clearly 
specify whether the existing construction ban in the Sheridan course 
particulate matter (PM10) nonattainment area, adopted by 
Wyoming to meet nonattainment NSR requirements for that area, continued 
to apply.
    Instead of incorporating 40 CFR 51.165 by reference, the November 
6, 2015 submittal adapts the language in 40 CFR 51.165 to remove 
phrases such as ``the plan shall provide'' and ``the plan may 
provide,'' and specifies the procedures to be used. In addition, the 
submittal revises language in 40 CFR 51.165 to specify that the WDEQ is 
the reviewing authority. In one place, the submittal modifies the term 
``building, structure, facility, or installation'' to ``structure, 
building, facility, equipment, installation, or operation,'' without 
modifying the substance of the definition of the term, which is 
permissible. These changes are consistent with the CAA and EPA 
regulations. Specifically:
    1. CAA section 110(a)(2)(C), requires each state plan to include 
``a program to provide for . . . the 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, including a 
permit program as required in parts C and D of this subchapter.''
    2. CAA section 172(c)(5), provides that the plan ``shall require 
permits for the construction and operation of new or modified major 
stationary sources anywhere in the nonattainment area, in accordance 
with section [173].'' By removing language such as ``the plan shall 
provide,'' the submittal avoids any ambiguity as to whether permits are 
required.
    3. CAA section 173, lays out the requirements for obtaining a 
permit that must be included in a state's SIP-approved permit program. 
Wyoming's Chapter 6, Section 13 rules impose these requirements on 
sources, and the State's proposed plan clearly satisfies the 
requirements of these statutory provisions.
    4. CAA section 110(a)(2)(A), requires that SIPs contain enforceable 
emissions limitations and other control measures. Under section CAA 
section 110(a)(2), the enforceability requirement in section 
110(a)(2)(A) applies to all plans submitted by a state. Chapter 6, 
Section 13 creates enforceable obligations for sources by removing 
phrases such as ``the plan shall provide'' and ``the plan may 
provide.''
    5. CAA section 110(i), (with certain limited exceptions) prohibits 
states from modifying SIP requirements for stationary sources except 
through the SIP revision process. By eliminating unspecified procedures 
that were referenced in the May 10, 2011 submittal, the November 6, 
2015 submittal addresses this issue.
    6. CAA section 172(c)(7), requires that nonattainment plans, 
including nonattainment NSR programs required by section 172(c)(5), 
meet the applicable provisions of section 110(a)(2), including the 
requirement in section 110(a)(2)(A) for enforceable emission 
limitations and other control measures.
    7. CAA section 110(l), provides that EPA cannot approve a SIP 
revision that interferes with any applicable requirement of the Act. As 
described above, the addition of Chapter 6, Section 13 to the Wyoming 
SIP would not interfere with sections 110(a)(2) and 110(i) of the Act.
    8. Wyoming's SIP revision complies with the requirements of 40 CFR 
51.165 as the plan imposes the regulatory requirements on individual 
sources, as required by the regulatory provisions. The crosswalk table 
in the docket details how the submittal addresses specific requirements 
in 40 CFR 51.165.

    Wyoming's submittal also addresses the potential conflicts with the 
State's approved minor NSR and PSD programs that existed in the May 5, 
2011 submittal. First, Section 13(c)(i) provides that the exemptions in 
the minor NSR program (Section 2(k)) shall not apply with regards to 
applicability of the nonattainment NSR program. Second, Section 
13(d)(iv) states that LAER, not BACT, applies to sources subject to 
nonattainment NSR. Finally, Section 13(f)(iii) clarifies that Section 
13 does not apply in the Sheridan PM10 nonattainment area; 
instead the construction ban in Section 2(c)(ii)(B) continues to apply.
    We note that the submittal contains provisions relevant to 
nonattainment NSR programs for PM2.5 nonattainment areas. 
Specifically, in the definition of

[[Page 10562]]

``regulated NSR pollutant,'' the submittal provides that sulfur dioxide 
(SO2) is a PM2.5 precursor, nitrogen oxide 
(NOX) is presumed to be a PM2.5 precursor, and 
volatile organic compounds (VOCs) and ammonia are presumed to not be 
PM2.5 precursors. This provision is consistent with the 
nonattainment NSR regulations promulgated in EPA's May 16, 2008 
PM2.5 NSR Implementation Rule (73 FR 28321). However, on 
January 4, 2013, the U.S. Court of Appeals for the District of Columbia 
Circuit, in Natural Resources Defense Council v. EPA, 706 F.3d 428 
(D.C. Cir. 2013), issued a decision that remanded the EPA's 2008 
PM2.5 NSR Implementation Rule. The court found that EPA 
erred in implementing the PM2.5 NAAQS in these rules solely 
pursuant to the general implementation provisions of subpart 1 of part 
D of title I of the CAA, rather than pursuant to the additional 
implementation provisions specific to particulate matter nonattainment 
areas in subpart 4. In particular, subpart 4 includes section 189(e) of 
the CAA, which requires the control of major stationary sources of 
PM10 precursors (and hence under the court decision, 
PM2.5 precursors) ``except where the Administrator 
determines that such sources do not contribute significantly to 
PM10 levels which exceed the standard in the area.'' 
Accordingly, nonattainment NSR programs that are submitted for 
PM2.5 nonattainment areas must regulate all PM2.5 
precursors, i.e., SO2, NOX, VOC, and ammonia, 
unless the Administrator determines that such sources of a particular 
precursor do not contribute significantly to nonattainment in the 
nonattainment area.
    Although the State's submittal only requires regulation of 
SO2 and NOX as PM2.5 precursors, the 
State of Wyoming has no nonattainment areas for the PM2.5 
standards. Accordingly, the EPA finds it reasonable to conclude that 
major sources of VOCs and ammonia do not contribute significantly to 
PM2.5 nonattainment within the State. Thus, there is no need 
at this time for the State to regulate VOCs or ammonia as 
PM2.5 precursors in its nonattainment NSR permitting 
program,\1\ and so we are proposing to approve the submittal's 
PM2.5 precursor provisions. Should EPA in the future 
designate an area in Wyoming as nonattainment for PM2.5, the 
State would have the obligation to ensure that the nonattainment NSR 
program met all applicable requirements for PM2.5, including 
appropriate control of precursors. See CAA sections 172(c)(5) and 
189(a)(1)(A).
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    \1\ The submittal does properly regulate VOCs as an ozone 
precursor, as intended by the State to address nonattainment NSR 
requirements for the UGRB ozone nonattainment area.
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V. What action is EPA proposing today?

    For the reasons described in section IV, the EPA is proposing to 
approve Wyoming's November 6, 2015 submittal which adds Chapter 6, 
Section 13 and updates Chapter 6, Section 14. Our action is based on an 
evaluation of Wyoming's rules against the requirements of CAA sections 
110(a)(2)(A), 110(a)(2)(C), 110(l) 172(c)(5), 173, 110(i), 172(c)(7), 
regulations at 40 CFR 51.165, and other requirements.

VI. Incorporation by Reference

    In this rule, the EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by 
reference the WAQSR that pertain to the issuance of Wyoming air quality 
permits for major sources in nonattainment areas as described in 
section IV of this preamble. The EPA has made, and will continue to 
make, these documents generally available electronically through 
www.regulations.gov and/or in hard copy at the appropriate EPA office 
(see the ADDRESSES section of this rule's preamble for more 
information).

VII. Statutory and Executive Orders Review

    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 
proposed action merely approves some state law as meeting federal 
requirements and disapproves other state law because it does not meet 
federal requirements; this proposed action does not impose additional 
requirements beyond those imposed by state law. For that reason, this 
proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, Oct. 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, Aug. 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, Feb. 16, 1994).
    The SIP is not approved to apply on any Indian reservation land or 
in any other area where EPA or an Indian tribe has demonstrated that a 
tribe has jurisdiction. In those areas of Indian country, the rule does 
not have tribal implications and will not impose substantial direct 
costs on tribal governments or preempt tribal law as specified by 
Executive Order 13175 (65 FR 67249, November 9, 2000).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds, Incorporation by reference.

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

    Dated: February 11, 2016.
Shaun L. McGrath,
Regional Administrator, Region 8.
[FR Doc. 2016-04403 Filed 2-29-16; 8:45 am]
 BILLING CODE 6560-50-P