[Federal Register Volume 86, Number 102 (Friday, May 28, 2021)]
[Rules and Regulations]
[Pages 28710-28713]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-11193]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 52

[EPA-R08-OAR-2021-0267; FRL-10024-01-Region 8]


Clean Air Act New Source Review Operating Permit Program; Notice 
of Transfer of Permits to Wyoming Department of Environmental Quality

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is granting Wyoming Department of Environmental 
Quality's (WDEQ) August 21, 2020 request to transfer to the State 
administrative authority over two existing federal permits that were 
issued by the EPA on June 26, 1973 under the federal new source review 
(NSR) permitting program. In addition, the EPA is agreeing with WDEQ's 
analysis in its August 21, 2020 letter demonstrating that the current 
Wyoming regulations still meet the requirements of the federal

[[Page 28711]]

NSR permitting program. This action transfers the 1973 federally issued 
permits to Wyoming. The EPA is taking this action in accordance with 
the Clean Air Act (CAA) and the Code of Federal Regulations NSR program 
requirements. This is a direct final action because the action is 
deemed noncontroversial.

DATES: This rule is effective on July 27, 2021 without further notice, 
unless the EPA receives adverse written comments on or before June 28, 
2021. If adverse comments are received, the EPA will publish a timely 
withdrawal in the Federal Register informing the public that this rule 
will not take effect.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R08-OAR-2021-0267. 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 
electronically in www.regulations.gov. To reduce the risk of COVID-19 
transmission, for this action we do not plan to offer hard copy review 
of the docket. Please email or call the person listed in the FOR 
FURTHER INFORMATION CONTACT section if you need to make alternative 
arrangements for access to the docket.

FOR FURTHER INFORMATION CONTACT: Donald Law, Air and Radiation 
Division, EPA, Region 8, Mailcode 8ARD-PM, 1595 Wynkoop Street, Denver, 
Colorado 80202-1129, (303) 312-7015, [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and 
``our'' mean the EPA.

I. Why is EPA using a direct final rule?

    The EPA is publishing this rule without prior proposal because the 
Agency views this action as noncontroversial and anticipates no adverse 
comments. However, in the Proposed Rules section of today's Federal 
Register publication, the EPA is publishing a separate document that 
will serve as the proposal to grant WDEQ's request to transfer to the 
State administrative authority over two federal permits if the EPA 
receives adverse comments. This rule will be effective on July 27, 2021 
without further notice unless we receive adverse comments by June 28, 
2021. If the EPA receives adverse comments, the EPA will publish a 
timely withdrawal in the Federal Register informing the public that 
this direct final rule will not take effect. The EPA will address all 
public comments in a subsequent final rule based on the proposed rule. 
The EPA will not institute a second comment period on this action. Any 
parties interested in commenting must do so at this time.

II. Background

    On April 30, 1971, the EPA Administrator promulgated national 
ambient air quality standards (NAAQS) for several pollutants.\1\ The 
EPA's action triggered requirements for states to adopt and submit 
plans to the EPA providing for the implementation, maintenance and 
enforcement of those NAAQS within their state borders.\2\ The EPA also 
promulgated regulations prescribing the requirements for the 
preparation, adoption and submittal of state plans.\3\
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    \1\ 36 FR 8186.
    \2\ See 42 U.S.C. 7410.
    \3\ See 36 FR at 15486 (Aug. 14, 1971), 20513 (Oct. 23, 1971), 
and 25233 (Dec. 30, 1971).
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    On January 26, 1972, Wyoming submitted its state implementation 
plan (SIP) to the EPA, followed by plan supplements on March 28 and May 
3, 1972. On May 31, 1972, the EPA approved parts of Wyoming's SIP and 
disapproved other parts. The EPA found that Wyoming did not demonstrate 
that it had the legal authority to carry out its SIP as required under 
40 CFR 51.11(a)(4)(1972) \4\ to prevent the construction of new sources 
and the modification of existing sources, and that Wyoming did not 
include legally enforceable procedures to prevent the construction of a 
new source or modification of an existing source under 40 CFR 
51.18(1972),\5\ Review of New Sources and Modifications. On September 
22, 1972, the EPA added paragraph (b) to 40 CFR 52.2625(1972) \6\ to 
provide for federal review of new sources and modifications of sources 
in Wyoming.\7\
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    \4\ Part 51 has since been revised and 40 CFR 51.11(a)(4)(1972) 
has been deleted. See https://www.ecfr.gov/cgi-bin/text-idx?SID=d5a8b4c159130810aa406765662e57a9&mc=true&tpl=/ecfrbrowse/Title40/40cfr51_main_02.tpl for current version. See the docket for 
the 1972 CFR version of this provision.
    \5\ Part 51 ha since been revised and 40 CFR 51.18 (1972) has 
been deleted. See https://www.ecfr.gov/cgi-bin/text-idx?SID=d5a8b4c159130810aa406765662e57a9&mc=true&tpl=/ecfrbrowse/Title40/40cfr51_main_02.tpl for current version. See the docket for 
the 1972 CFR version of this provision.
    \6\ Part 52 has since been revised and 40 CFR 52.2625(1972) has 
been deleted. See https://www.ecfr.gov/cgi-bin/text-idx?SID=3d6071d443b4700a12af6eb2b751a68c&mc=true&node=se40.5.52_12625&rgn=div8 for the current version. See the docket for the 1972 CFR 
version of this provision.
    \7\ 37 FR 19806.
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    On July 26, 1973, the EPA approved two trona (trisodium 
hydrogendicarbonate dihydrate) plant facility expansion applications 
and issued permits under 40 CFR 52.2625(b)(1972), each bearing the same 
permit number of ``8A-EE.'' One permit was originally issued to Allied 
Chemical Corporation and is now held by TATA Chemicals Soda Ash 
Partners, and the other permit was originally issued to FMC Corporation 
and is now held by Genesis Alkali Wyoming, LP.
    On June 10, 1975, the EPA approved Wyoming's NSR regulations 
finding that Wyoming's NSR regulations satisfied the requirements of 40 
CFR 51.18 for direct sources.8 9 In the 1975 Federal 
Register document, the EPA also withdrew the federal NSR program under 
40 CFR 52.2625(b)(1972). The 1975 federal rulemaking was silent on the 
existing federal permits issued under the now superseded federal NSR 
program for Wyoming under 40 CFR 52.2625(b)(1972).
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    \8\ 40 FR 24726.
    \9\ The EPA did not find that Wyoming's new source review 
procedures for indirect sources met the requirements of 40 CFR 
51.18.
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    In an August 21, 2020 letter, WDEQ requested the EPA transfer to 
the State administrative authority over two existing federal permits 
that were issued by the EPA on June 26, 1973 under the federal NSR 
permitting program.10 11 In its letter, as well as in 
Wyoming's 1975 approved SIP, WDEQ outlined how its stationary source 
permitting rules in Chapter 6, section 2 of the Wyoming Air Quality 
Rules and Regulations provide WDEQ with the authority to administer air 
permits, including the two 8A-EE permits originally issued by the EPA. 
Specifically, the provisions of Chapter 6, section 2 satisfy all the 
requirements of 40 CFR 51.18 for federally approved permit programs as 
the EPA previously determined in order to have granted Wyoming 
authority for implementation of the NSR program. WDEQ has authority to 
issue permits and impose conditions in those permits in order to ensure 
the maintenance or attainment of national and state ambient air quality 
standards. In addition, WDEQ also has authority to enforce these 
permits under Wyoming Statutes Annotated 35-11-901.
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    \10\ Letter dated August 21, 2020, from Nancy E. Vehr, Director, 
Wyoming Air Quality Division, WDEQ, to Carl Daly, Acting Director, 
Air and Radiation Division, EPA, Region 8, Subject: ``Permits 8A-EE 
issued on July 26, 1973 to Allied Chemical Corporation and to FMC 
Corporation.''
    \11\ 40 CFR 52.2625(b) (1972).

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[[Page 28712]]

III. EPA Evaluation

    In its August 21, 2020 letter, WDEQ requested that EPA formally 
transfer authority to WDEQ for the two July 26, 1973 permits issued 
under the federal NSR program at 40 CFR 52.2625(b)(1972) based upon the 
EPA's 1975 approval of Wyoming's NSR program and deletion of the 
federal NSR program as well as a demonstration that Wyoming's current 
regulations still meet the requirements of a federally approved permit 
program as required under 40 CFR 51.11(a)(4) and 51.18. WDEQ's request 
for the transfer of the federally-issued permits under 40 CFR 
52.2625(b)(1972) to Wyoming includes the request to transfer the 
authority to conduct general administration of these existing permits, 
authority to process and issue any and all subsequent permit actions 
relating to such permits (e.g. modifications, amendments, or revisions 
of any nature) and authority to enforce such permits.
    In its August 21, 2020 letter, WDEQ provided that Wyoming's 
stationary source permitting rules contained within its SIP including 
Chapter 6, section 2 of the Wyoming Air Quality Rules and Regulations, 
provide WDEQ the authority to administer all permits, including the two 
8A-EE permits originally issued by the EPA. Chapter 6, section 2 of the 
Wyoming Air Quality Rules and Regulations authorizes WDEQ to issue 
permits and impose conditions in those permits in order to ensure the 
maintenance or attainment of national and state ambient air quality 
standards which the EPA approved in 1975.\12\ WDEQ has authority to 
enforce these permits under Wyoming Statutes Annotated 35-11-901. This 
is in keeping with the requirements of 40 CFR 51.18 which requires 
state programs to have the ability to impose permit conditions to 
maintain the national and state ambient air quality standards. We agree 
with the State's findings that Chapter 6, section 2 continues to 
satisfy the requirements of 40 CFR 51.18.
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    \12\ 40 FR 24726 (June 10, 1975).
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    In addition, Wyoming asserts that Wyoming's Chapter 6, section 
2(c)(ii) requirements satisfy the requirements of 40 CFR 51.11(a)(4) 
and 51.18(a). Wyoming's Chapter 6, section 2(c)(ii) states that ``[n]o 
approval to construct or modify will be granted unless the applicant 
shows, to the satisfaction of the Administrator of the Division of Air 
Quality that . . . the proposed facility will not prevent the 
attainment or maintenance of any ambient air quality standard.'' Under 
40 CFR 51.18(a), plans are required to set forth legally enforceable 
procedures to be used to implement the provisions of 40 CFR 
51.11(a)(4). 40 CFR 51.11(a)(4) provides that the permitting entity 
must have the authority to ``[p]revent construction, modification, or 
operation of any stationary source at any location where emissions from 
such source will prevent the attainment or maintenance of a national 
standard.'' Since Wyoming's SIP sets forth legally enforceable 
procedures to implement the authority to ``[p]revent construction, 
modification, or operation of any stationary source at any location 
where emissions from such source will prevent the attainment or 
maintenance of a national standard,'' we agree with the State's 
findings that Chapter 6, section 2 continues to satisfy the 
requirements of 40 CFR 51.11(a)(4) and 51.18(a).
    Wyoming also states that Chapter 6, section 2(b)(i) of the Wyoming 
Air Quality Rules and Regulations is analogous to 40 CFR 51.18(b) which 
requires plans to contain provisions that require applicants to submit 
information on the nature and amounts of emissions, locations, design, 
construction and operation of such sources as may be necessary to 
permit the state agency to make the determination referred to in 40 CFR 
51.18(a). We agree with the State's findings that Chapter 6, Section 2 
continues to satisfy the requirements of 40 CFR 51.18(b).
    Wyoming also provides in their August 21, 2020 letter that Chapter 
6, section 2(c)(ii) of the Wyoming Air Quality Rules and Regulations 
meets the requirements of 40 CFR 51.18(c) requiring state permitting 
agencies to have the authority to deny approval of construction of new 
sources or modification of existing sources that would result in 
interference with the attainment of maintenance of national standards. 
Chapter 6, section 2(c)(ii) of the Wyoming Air Quality Rules and 
Regulations states that approval will not be granted unless the 
applicant demonstrates the construction or modification will not 
prevent attainment or maintenance of national standards. We agree with 
the State's findings that Chapter 6, section 2 continues to satisfy the 
requirements of 40 CFR 51.18(c).
    Lastly, Wyoming states that Chapter 6, section 2(l) of the Wyoming 
Air Quality Standards and Regulations meets the requirements of 40 CFR 
51.18(d) which states that an approval or any construction of 
modification must not affect the responsibility of the applicant to 
comply with applicable portions of the control strategy. Wyoming's 
Chapter 6, section 2(l) of the Wyoming Air Quality Standards and 
Regulations, states that ``[a]pproval to construct or modify shall not 
relieve any owner or operator of the responsibility to comply with all 
local, state, and federal rules and regulations.'' We agree with the 
State's findings that Chapter 6, section 2 continues to satisfy the 
requirements of 40 CFR 51.18(d).
    Pursuant to the criteria under section 110(a)(2)(E)(i) of the Clean 
Air Act, we have determined that WDEQ has the authority, personnel and 
funding to implement the NSR program for direct sources within Wyoming 
for existing EPA-issued permits under 40 CFR 52.2625(b)(1972). This is 
based upon the EPA's June 10, 1975 approval of Wyoming Air Quality 
Standards and Regulations, (1974) whereby the EPA approved Wyoming's 
NSR program for direct sources and deleted EPA's federal NSR program 
under Sec.  52.2625(b) (1972).\13\ In our 1975 rulemaking, we 
determined that Wyoming's regulations met the requirement that 
Wyoming's SIP include procedures to assure that the construction or 
modification of new or existing stationary sources would not interfere 
with the attainment or maintenance of the NAAQS as required under 40 
CFR 51.18. In addition, we have determined that Wyoming has 
demonstrated that its SIP and Chapter 6, section 2 of the Wyoming Air 
Quality Rules and Regulations provide WDEQ the authority to administer 
all permits, including the two permits issued by the EPA under 40 CFR 
52.2625(b)(1972) on July 26, 1973.
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    \13\ 40 FR 24726.
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IV. Final Action

    Based on our finding that WDEQ has met the criteria under section 
110(a)(2)(E)(i) of the CAA and that WDEQ has the authority, personnel 
and funding to implement the NSR program within Wyoming for existing 
EPA-issued permits under 40 CFR 52.2625(b)(1972), the two EPA-issued 
permits, both numbered 8A-EE, will be transferred to Wyoming upon the 
effective date of this rule.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a state NSR 
program submittal 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 NSR program submittals, the EPA's role is to approve 
state choices, provided they meet the criteria of the CAA and the 
criteria, standards and procedures defined in 40 CFR parts 51 and 52.

[[Page 28713]]

Accordingly, this action merely approves state law as meeting federal 
requirements and 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 Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because it is not a significant regulatory 
action under Executive Order 12866;
     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 action is not approved to apply on any Indian 
reservation land or in any other area where the 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).
    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 July 27, 2021. 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

40 CFR Part 51

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Carbon monoxide, Intergovernmental relations, 
Lead, Nitrogen dioxide, Nitrogen oxides, Opacity, Ozone, Reporting and 
recordkeeping requirements, Sulfur dioxide, Sulfur oxides, 
Transportation, Volatile organic compounds.

40 CFR Part 52

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

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

    Dated: May 20, 2021.
Debra H. Thomas,
Acting Regional Administrator, Region 8.
[FR Doc. 2021-11193 Filed 5-27-21; 8:45 am]
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