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[Federal Register Volume 81, Number 216 (Tuesday, November 8, 2016)]
[Proposed Rules]
[Pages 78529-78539]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-26860]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2012-0933; FRL-9954-92-Region 8]

Promulgation of State Implementation Plan Revisions; 
Infrastructure Requirements for the 2008 Lead, 2008 Ozone, 2010 NO2, 
2010 SO2, and 2012 PM2.5 National Ambient Air Quality Standards; 
Wyoming

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve elements of State Implementation Plan (SIP) revisions from the 
State of Wyoming to demonstrate the State meets infrastructure 
requirements of the Clean Air Act (Act or CAA) for the National Ambient 
Air Quality Standards (NAAQS) promulgated for ozone on March 12, 2008, 
lead (Pb) on October 15, 2008, nitrogen dioxide (NO2) on 
January 22, 2010, sulfur dioxide (SO2) on June 2, 2010, and 
fine particulate matter (PM2.5) on December 14, 2012. The 
EPA is also proposing to approve SIP revisions the State submitted 
regarding state boards. Section 110(a) of the CAA requires that each 
state submit a SIP for the implementation, maintenance and enforcement 
of each NAAQS promulgated by the EPA.

DATES: Written comments must be received on or before December 8, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2012-0933 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: Abby Fulton, Air Program, U.S. 
Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6563, 
fulton.abby@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

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

    1. Submitting Confidential Business Information (CBI). Do not 
submit CBI to the 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 the 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

    On March 12, 2008, the EPA promulgated a new NAAQS for ozone, 
revising the levels of the primary and secondary eight-hour ozone 
standards from 0.08 parts per million (ppm) to 0.075 ppm (73 FR 16436, 
March 27, 2008). Subsequently, on October 15, 2008, the EPA revised the 
level of the primary and secondary Pb NAAQS from 1.5 micrograms per 
cubic meter ([mu]g/m\3\) to 0.15 [mu]g/m\3\ (73 FR 66964, Nov. 12, 
2008). On January 22, 2010, the EPA promulgated a new one-hour primary 
NAAQS for NO2 at a level of 100 parts per billion (ppb) 
while retaining the annual standard of 53 ppb. The 2010 NO2 
NAAQS is expressed as the three-year average of the 98th percentile of 
the annual distribution of daily maximum one-hour average 
concentrations. The secondary NO2 NAAQS remains unchanged at 
53 ppb (75 FR 6474, Feb. 9, 2010). On June 2, 2010, the EPA promulgated 
a revised primary SO2 standard at 75 ppb, based on a three-
year average of the annual 99th percentile of one-hour daily maximum 
concentrations (75 FR 35520, June 22, 2010). Finally, on December 14, 
2012, the EPA promulgated a revised annual PM2.5 standard by 
lowering the level to 12.0 [mu]g/m\3\ and retaining the 24-hour 
PM2.5 standard at a level of 35 [mu]g/m\3\ (78 FR 3086, Jan. 
15, 2013).
    Under sections 110(a)(1) and (2) of the CAA, states are required to 
submit infrastructure SIPs to ensure their SIPs provide for 
implementation, maintenance and enforcement of the NAAQS. These 
submissions must contain any revisions needed for meeting the 
applicable SIP requirements of section 110(a)(2), or certifications 
that their existing SIPs for PM2.5, ozone, Pb, 
NO2, and SO2 already meet those requirements. The 
EPA highlighted this

[[Page 78530]]

statutory requirement in an October 2, 2007, guidance document entitled 
``Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) 
for the 1997 8-hour Ozone and PM2.5 National Ambient Air 
Quality Standards'' (2007 Memo). On September 25, 2009, the EPA issued 
an additional guidance document pertaining to the 2006 PM2.5 
NAAQS entitled ``Guidance on SIP Elements Required Under Sections 
110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM2.5) 
National Ambient Air Quality Standards (NAAQS)'' (2009 Memo), followed 
by the October 14, 2011, ``Guidance on Infrastructure SIP Elements 
Required Under Sections 110(a)(1) and (2) for the 2008 Lead (Pb) 
National Ambient Air Quality Standards (NAAQS)'' (2011 Memo). Most 
recently, the EPA issued ``Guidance on Infrastructure State 
Implementation Plan (SIP) Elements under Clean Air Act Sections 
110(a)(1) and (2)'' on September 13, 2013 (2013 Memo).

III. What is the scope of this rulemaking?

    The EPA is acting upon the SIP submissions from Wyoming that 
address the infrastructure requirements of CAA sections 110(a)(1) and 
110(a)(2) for the 2008 ozone, 2008 Pb, 2010 NO2, 2010 
SO2, and 2012 PM2.5 NAAQS. The requirement for 
states to make a SIP submission of this type arises out of CAA section 
110(a)(1). Pursuant to section 110(a)(1), states must make SIP 
submissions ``within three years (or such shorter period as the 
Administrator may prescribe) after the promulgation of a national 
primary ambient air quality standard (or any revision thereof),'' and 
these SIP submissions are to provide for the ``implementation, 
maintenance, and enforcement'' of such NAAQS. The statute directly 
imposes on states the duty to make these SIP submissions, and the 
requirement to make the submissions is not conditioned upon the EPA 
taking any action other than promulgating a new or revised NAAQS. 
Section 110(a)(2) includes a list of specific elements that ``[e]ach 
such plan'' submission must address.
    The EPA has historically referred to these SIP submissions made for 
the purpose of satisfying the requirements of CAA sections 110(a)(1) 
and 110(a)(2) as ``infrastructure SIP'' submissions. Although the term 
``infrastructure SIP'' does not appear in the CAA, the EPA uses the 
term to distinguish this particular type of SIP submission from 
submissions that are intended to satisfy other SIP requirements under 
the CAA, such as ``nonattainment SIP'' or ``attainment plan SIP'' 
submissions to address the nonattainment planning requirements of part 
D of title I of the CAA; ``regional haze SIP'' submissions required by 
the EPA rule to address the visibility protection requirements of CAA 
section 169A; and nonattainment new source review (NSR) permit program 
submissions to address the permit requirements of CAA, title I, part D.
    Section 110(a)(1) addresses the timing and general requirements for 
infrastructure SIP submissions, and section 110(a)(2) provides more 
details concerning the required contents of these submissions. The list 
of required elements provided in section 110(a)(2) contains a wide 
variety of disparate provisions, some of which pertain to required 
legal authority, some of which pertain to required substantive program 
provisions, and some of which pertain to requirements for both 
authority and substantive program provisions.\1\ The EPA therefore 
believes that while the timing requirement in section 110(a)(1) is 
unambiguous, some of the other statutory provisions are ambiguous. In 
particular, the EPA believes that the list of required elements for 
infrastructure SIP submissions provided in section 110(a)(2) contains 
ambiguities concerning what is required for inclusion in an 
infrastructure SIP submission.
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    \1\ For example: Section 110(a)(2)(E)(i) provides that states 
must provide assurances that they have adequate legal authority 
under state and local law to carry out the SIP; section 110(a)(2)(C) 
provides that states must have a SIP-approved program to address 
certain sources as required by part C of title I of the CAA; and 
section 110(a)(2)(G) provides that states must have legal authority 
to address emergencies as well as contingency plans that are 
triggered in the event of such emergencies.
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    Examples of some of these ambiguities and the context in which the 
EPA interprets the ambiguous portions of section 110(a)(1) and 
110(a)(2) are discussed at length in our notice of proposed rulemaking: 
Promulgation of State Implementation Plan Revisions; Infrastructure 
Requirements for the 1997 and 2006 PM2.5, 2008 Lead, 2008 
Ozone, and 2010 NO2 National Ambient Air Quality Standards; 
South Dakota (79 FR 71040, Dec. 1, 2014) under ``III. What is the Scope 
of this Rulemaking?''
    With respect to certain other issues, the EPA does not believe that 
an action on a state's infrastructure SIP submission is necessarily the 
appropriate type of action in which to address possible deficiencies in 
a state's existing SIP. These issues include: (i) Existing provisions 
related to excess emissions from sources during periods of startup, 
shutdown, or malfunction (SSM) that may be contrary to the CAA and the 
EPA's policies addressing such excess emissions; (ii) existing 
provisions related to ``director's variance'' or ``director's 
discretion'' that may be contrary to the CAA because they purport to 
allow revisions to SIP-approved emissions limits while limiting public 
process or not requiring further approval by the EPA; and (iii) 
existing provisions for Prevention of Significant Deterioration (PSD) 
programs that may be inconsistent with current requirements of the 
EPA's ``Final NSR Improvement Rule,'' 67 FR 80186, Dec. 31, 2002, as 
amended by 72 FR 32526, June 13, 2007 (``NSR Reform'').

IV. What infrastructure elements are required under sections 110(a)(1) 
and (2)?

    CAA section 110(a)(1) provides the procedural and timing 
requirements for SIP submissions after a new or revised NAAQS is 
promulgated. Section 110(a)(2) lists specific elements the SIP must 
contain or satisfy. These infrastructure elements include requirements 
such as modeling, monitoring and emissions inventories, which are 
designed to assure attainment and maintenance of the NAAQS. The 
elements that are the subject of this action are listed below.
     110(a)(2)(A): Emission limits and other control measures.
     110(a)(2)(B): Ambient air quality monitoring/data system.
     110(a)(2)(C): Program for enforcement of control measures.
     110(a)(2)(D): Interstate transport.
     110(a)(2)(E): Adequate resources and authority, conflict 
of interest, and oversight of local governments and regional agencies.
     110(a)(2)(F): Stationary source monitoring and reporting.
     110(a)(2)(G): Emergency powers.
     110(a)(2)(H): Future SIP revisions.
     110(a)(2)(J): Consultation with government officials; 
public notification; and PSD and visibility protection.
     110(a)(2)(K): Air quality modeling/data.
     110(a)(2)(L): Permitting fees.
     110(a)(2)(M): Consultation/participation by affected local 
entities.
    A detailed discussion of each of these elements is contained in the 
next section.
    Two elements identified in section 110(a)(2) are not governed by 
the three-year submission deadline of section 110(a)(1) and are 
therefore not addressed in this action. These elements relate to part D 
of Title I of the CAA, and submissions to satisfy them are not due 
within three years after promulgation of a new or revised NAAQS, but 
rather are

[[Page 78531]]

due at the same time nonattainment area plan requirements are due under 
section 172. The two elements are: (1) Section 110(a)(2)(C) to the 
extent it refers to permit programs (known as ``nonattainment NSR'') 
required under part D, and (2) section 110(a)(2)(I), pertaining to the 
nonattainment planning requirements of part D. As a result, this action 
does not address infrastructure elements related to the nonattainment 
NSR portion of section 110(a)(2)(C) or related to 110(a)(2)(I). 
Furthermore, the EPA interprets the CAA section 110(a)(2)(J) provision 
on visibility as not being triggered by a new NAAQS because the 
visibility requirements in part C, title 1 of the CAA are not changed 
by a new NAAQS.

V. How did Wyoming address the infrastructure elements of sections 
110(a)(1) and (2)?

    The Wyoming Department of Environmental Quality (Department or 
WDEQ) submitted certification of Wyoming's infrastructure SIP for the 
2008 Pb NAAQS on October 12, 2011; 2008 ozone NAAQS on February 6, 
2014; 2010 NO2 NAAQS on January 24, 2014; 2010 
SO2 NAAQS on March 6, 2015; and 2012 PM2.5 on 
June 24, 2016. Infrastructure SIPs were taken out for public notice and 
Wyoming provided an opportunity for public hearing, as indicated in the 
cover letter of each certification (available within this docket). 
Wyoming's infrastructure certifications demonstrate how the State, 
where applicable, has plans in place that meet the requirements of 
section 110 for the 2008 Pb, 2008 ozone, 2010 NO2, 2010 
SO2, and 2012 PM2.5 NAAQS. These plans reference 
the Wyoming Air Quality Standards and Regulations (WAQSR) and Wyoming 
Statutes. These submittals are available within the electronic docket 
for today's proposed action at www.regulations.gov. The WAQSR and 
Wyoming Statutes referenced in the submittals are publicly available at 
http://soswy.state.wy.us/Rules/default.aspx and http://legisweb.state.wy.us/LSOWEB/wyStatutes.aspx. Air pollution control 
regulations and statutes that have been previously approved by the EPA 
and incorporated into the Wyoming SIP can be found at 40 CFR 52.2620.

VI. Analysis of the State Submittals

    1. Emission limits and other control measures: Section 110(a)(2)(A) 
requires SIPs to include enforceable emission limitations and other 
control measures, means, or techniques (including economic incentives 
such as fees, marketable permits, and auctions of emissions rights), as 
well as schedules and timetables for compliance as may be necessary or 
appropriate to meet the applicable requirements of this Act.
    The State's submissions for the 2008 Pb, 2008 ozone 2010 
NO2, 2010 SO2, and 2012 p.m.2.5 
infrastructure requirements cite three non-regulatory documents (e.g., 
Control Strategy, Source Surveillance, and Compliance Schedule) which 
were approved by EPA on May 31, 1972 (37 FR 10842). The State's 
submissions also cite regulatory documents included in Chapters 1, 3, 
4, 8, 10 and 13 of the WAQSR. The SIP approved non-regulatory documents 
cited in combination with multiple SIP-approved state air quality 
regulations within WAQSR and cited in Wyoming's certifications, provide 
enforceable emission limitations and other control measures, means of 
techniques, schedules for compliance, and other related matters 
necessary to meet the requirements of the CAA section 110(a)(2)(A) for 
the 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2 and 
2012 PM2.5 NAAQS, subject to the following clarifications.
    First, this infrastructure element does not require the submittal 
of regulations or emission limitations developed specifically for 
attaining the 2008 Pb, 2008 ozone 2010 NO2, 2010 
SO2 and 2012 PM2.5 NAAQS. Wyoming's 
certifications (contained within this docket) generally list provisions 
and enforceable control measures within its SIP which regulate 
pollutants through various programs. This includes its stationary 
source permit program which requires sources to demonstrate that 
emissions will not cause or contribute to a violation of any NAAQS. 
This suffices, in the case of Wyoming, to meet the requirements of 
section 110(a)(2)(A) for the 2008 Pb, 2008 ozone 2010 NO2, 
2010 SO2 and 2012 PM2.5 NAAQS.
    Second, as previously discussed, the EPA is not proposing to 
approve or disapprove any existing state rules with regard to 
director's discretion or variance provisions. A number of states have 
such provisions which are contrary to the CAA and existing EPA guidance 
(52 FR 45109, Nov. 24, 1987), and the agency plans to take action in 
the future to address such state regulations. In the meantime, the EPA 
encourages any state having a director's discretion or variance 
provision which is contrary to the CAA and EPA guidance to take steps 
to correct the deficiency as soon as possible.
    Finally, in this action, the EPA is also not proposing to approve 
or disapprove any existing state provision with regard to excess 
emissions during SSM of operations at a facility. A number of states 
have SSM provisions which are contrary to the CAA and existing EPA 
guidance \2\ and the agency is addressing such state regulations 
separately (80 FR 33840, June 12, 2015).
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    \2\ Steven Herman, Assistant Administrator for Enforcement and 
Compliance Assurance, and Robert Perciasepe, Assistant Administrator 
for Air and Radiation, Memorandum to the EPA Air Division Directors, 
``State Implementation Plans (SIPs): Policy Regarding Emissions 
During Malfunctions, Startup, and Shutdown.'' (September 20, 1999).
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    Therefore, the EPA is proposing to approve Wyoming's infrastructure 
SIP for the 2008 Pb, 2008 ozone 2010 NO2, 2010 
SO2 and 2012 PM2.5 NAAQS with respect to the 
general requirement in section 110(a)(2)(A) to include enforceable 
emission limitations and other control measures, means, or techniques 
to meet the applicable requirements of this element.
    2. Ambient air quality monitoring/data system: Section 110(a)(2)(B) 
requires SIPs to ``provide for establishment and operation of 
appropriate devices, methods, systems, and procedures necessary'' to 
``(i) monitor, compile, and analyze data on ambient air quality, and 
(ii) upon request, make such data available to the Administrator.''
    The State's submissions cite five non-regulatory documents (e.g., 
Air Quality Surveillance, Air Quality Surveillance Network, 
Implementation Plan for Lead, Wyoming Ambient Air Monitoring Network 
Plan, and the EPA Performance Partnership Agreement). The State's 
submissions also cite regulatory documents included in Chapters 1 and 2 
of the WAQSR. Provisions contained in Chapter 6, Section 2(b)(i) of the 
WAQSR provide the legal authority and framework for the Air Quality 
Division (AQD) Administrator to require that permit applicants submit 
adequate monitoring data. Additionally, Chapter 6, Section 2(f)(iv) 
enables the AQD Administrator to impose reasonable conditions upon an 
approval to construct, modify, or operate, including ambient air 
quality monitoring. Additionally, the State of Wyoming submits data to 
the EPA's Air Quality System database in accordance with 40 CFR 58.16. 
Finally, Wyoming's 2015 Annual Monitoring Network Plan was approved 
through a letter dated September 24, 2015 (available within the 
docket). The State provides the EPA with prior notification when 
changes to its monitoring network or plan are being considered.
    We find that Wyoming's SIP and practices are adequate for the 
ambient air quality monitoring and data system requirements and 
therefore propose to approve the infrastructure SIP for the

[[Page 78532]]

2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2 and 2012 
PM2.5 NAAQS for this element.
    3. Program for enforcement of control measures: Section 
110(a)(2)(C) requires SIPs to ``include a program to provide for the 
enforcement of the measures described in subparagraph (A), and 
regulation of the modification and construction of any stationary 
source within the areas covered by the plan as necessary to assure that 
[NAAQS] are achieved, including a permit program as required in parts C 
and D.''
    To generally meet the requirements of section 110(a)(2)(C), the 
State is required to have SIP-approved PSD, nonattainment NSR, and 
minor NSR permitting programs that are adequate to implement the 2008 
Pb, 2010 NO2, 2010 SO2 and 2012 PM2.5 
NAAQS. The EPA already proposed approval of section 110(a)(2)(C) for 
the 2008 ozone NAAQS in a separate rulemaking at 81 FR 53365 (Aug. 12, 
2016). As explained elsewhere in this action, the EPA is not evaluating 
nonattainment related provisions, such as the nonattainment NSR program 
required by part D of the Act. The EPA is evaluating the State's PSD 
program as required by part C of the Act, and the State's minor NSR 
program as required by section 110(a)(2)(C).

Enforcement of Control Measures Requirement

    Wyoming's Rule (02) II, Legal Authority, which the EPA approved 
into Wyoming's SIP,\3\ allows the State to enforce applicable laws, 
regulations, and standards; to seek injunctive relief; and to provide 
authority to prevent 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 or 
interfere with prevention of significant deterioration requirements.
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    \3\ See 40 CFR 52.2620(e), Rule No. (02) II; 41 FR 36652 (Aug. 
31, 1976) (approving Wyoming's revisions to its SIP).
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PSD Requirements

    With respect to Elements (C) and (J), the EPA interprets the CAA to 
require each state to make an infrastructure SIP submission for a new 
or revised NAAQS demonstrating that the air agency has a complete PSD 
permitting program meeting the current requirements for all regulated 
NSR pollutants. The requirements of Element D(i)(II) prong 3 may also 
be satisfied by demonstrating the air agency has a complete PSD 
permitting program that applies to all regulated NSR pollutants. 
Wyoming has shown that it currently has a PSD program in place that 
covers all regulated NSR pollutants, including greenhouse gases (GHGs).
    On July 25, 2011 (76 FR 44265), we approved a revision to the 
Wyoming PSD program that addressed the PSD requirements of the Phase 2 
Ozone Implementation Rule promulgated on November 29, 2005 (70 FR 
71612). As a result, the approved Wyoming PSD program meets the current 
requirements for ozone.
    With respect to GHGs, on June 23, 2014, the United States Supreme 
Court addressed the application of PSD permitting requirements to GHG 
emissions. Utility Air Regulatory Group v. Environmental Protection 
Agency, 134 S.Ct. 2427 (2014). The Supreme Court held that the EPA may 
not treat GHGs as an air pollutant for purposes of determining whether 
a source is a major source required to obtain a PSD permit. The Court 
also held that the EPA could continue to require that PSD permits, 
otherwise required based on emissions of pollutants other than GHGs, 
(anyway sources) contain limitations on GHG emissions based on the 
application of Best Available Control Technology (BACT).
    In accordance with the Supreme Court decision, on April 10, 2015, 
the U.S. Court of Appeals for the District of Columbia Circuit (the 
D.C. Circuit) in Coalition for Responsible Regulation v. EPA, 606 F. 
App'x. 6, at *7-8 (D.C. Cir. April 10, 2015), issued an amended 
judgment vacating the regulations that implemented Step 2 of the EPA's 
PSD and Title V Greenhouse Gas Tailoring Rule, but not the regulations 
that implement Step 1 of that rule. Step 1 of the Tailoring Rule covers 
sources that are required to obtain a PSD permit based on emissions of 
pollutants other than GHGs. Step 2 applied to sources that emitted only 
GHGs above the thresholds triggering the requirement to obtain a PSD 
permit. The amended judgment preserves, without the need for additional 
rulemaking by the EPA, the application of the BACT requirement to GHG 
emissions from Step 1 or ``anyway sources.'' \4\ With respect to Step 2 
sources, the D.C. Circuit's amended judgment vacated the regulations at 
issue in the litigation, including 40 CFR 51.166(b)(48)(v), ``to the 
extent they require a stationary source to obtain a PSD permit if 
greenhouse gases are the only pollutant (i) that the source emits or 
has the potential to emit above the applicable major source thresholds, 
or (ii) for which there is a significant emission increase from a 
modification.''
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    \4\ See 77 FR 41066 (July 12, 2012) (rulemaking for definition 
of ``anyway'' sources).
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    The EPA is planning to take additional steps to revise the federal 
PSD rules in light of the Supreme Court and subsequent D.C. Circuit 
opinion. Some states have begun to revise their existing SIP-approved 
PSD programs in light of these court decisions, and some states may 
prefer not to initiate this process until they have more information 
about the planned revisions to the EPA's PSD regulations. The EPA is 
not expecting states to have revised their PSD programs in anticipation 
of the EPA's planned actions to revise its PSD program rules in 
response to the court decisions.
    At present, the EPA has determined that Wyoming's SIP is sufficient 
to satisfy Elements (C), (D)(i)(II) prong 3 and (J) with respect to 
GHGs. This is because the PSD permitting program previously approved by 
the EPA into the SIP continues to require that PSD permits issued to 
``anyway sources'' contain limitations on GHG emissions based on the 
application of BACT. The EPA most recently approved revisions to 
Wyoming's PSD program on December 6, 2013 (78 FR 73445). The approved 
Wyoming PSD permitting program still contains some provisions regarding 
Step 2 sources that are no longer necessary in light of the Supreme 
Court decision and D.C. Circuit's amended judgment. Nevertheless, the 
presence of these provisions in the previously-approved plan does not 
render the infrastructure SIP submission inadequate to satisfy Elements 
(C), (D)(i)(II) prong 3 and (J). The SIP contains the PSD requirements 
for applying the BACT requirement to greenhouse gas emissions from 
``anyway sources'' that are necessary at this time. The application of 
those requirements is not impeded by the presence of other previously-
approved provisions regarding the permitting of Step 2 sources. 
Accordingly, the Supreme Court decision and subsequent D.C. Circuit 
judgment do not prevent the EPA's approval of Wyoming's infrastructure 
SIP as to the requirements of Elements (C), (D)(i)(II) prong 3, and 
(J).
    Finally, we evaluate the PSD program with respect to current 
requirements for PM2.5. In particular, on May 16, 2008, the 
EPA promulgated the rule, ``Implementation of the New Source Review 
Program for Particulate Matter Less Than 2.5 Micrometers 
(PM2.5)'' (73 FR 28321) (2008 Implementation Rule). On 
October 20, 2010 the EPA promulgated the rule, ``Prevention of 
Significant Deterioration (PSD) for Particulate Matter Less Than 2.5

[[Page 78533]]

Micrometers (PM2.5)--Increments, Significant Impact Levels 
(SILs) and Significant Monitoring Concentration (SMC)'' (75 FR 64864). 
The EPA regards adoption of these PM2.5 rules as a necessary 
requirement when assessing a PSD program for the purposes of Element 
(C).
    On January 4, 2013, the U.S. Court of Appeals, in Natural Resources 
Defense Council v. EPA, 706 F.3d 428 (D.C. Cir. 2013), issued a 
judgment that remanded the EPA's 2007 and 2008 rules implementing the 
1997 PM2.5 NAAQS. The court ordered the EPA to 
``repromulgate these rules pursuant to Subpart 4 consistent with this 
opinion.'' Id. at 437. Subpart 4 of part D, Title 1 of the CAA 
establishes additional provisions for particulate matter nonattainment 
areas.
    The 2008 Implementation Rule addressed by Natural Resources Defense 
Council, ``Implementation of New Source Review (NSR) Program for 
Particulate Matter Less Than 2.5 Micrometers (PM2.5),'' (73 
FR 28321, May 16, 2008), promulgated NSR requirements for 
implementation of PM2.5 in nonattainment areas 
(nonattainment NSR) and attainment/unclassifiable areas (PSD). As the 
requirements of Subpart 4 only pertain to nonattainment areas, the EPA 
does not consider the portions of the 2008 Implementation Rule that 
address requirements for PM2.5 attainment and unclassifiable 
areas to be affected by the court's opinion. Moreover, the EPA does not 
anticipate the need to revise any PSD requirements promulgated in the 
2008 Implementation Rule in order to comply with the court's decision. 
Accordingly, the EPA's proposed approval of Wyoming's infrastructure 
SIP as to Elements (C), (D)(i)(II) prong 3, and (J) with respect to the 
PSD requirements promulgated by the 2008 Ozone Implementation rule does 
not conflict with the court's opinion.
    The court's decision with respect to the nonattainment NSR 
requirements promulgated by the 2008 Implementation Rule also does not 
affect the EPA's action on the present infrastructure action. The EPA 
interprets the Act to exclude nonattainment area requirements, 
including requirements associated with a nonattainment NSR program, 
from infrastructure SIP submissions due three years after adoption or 
revision of a NAAQS. Instead, these elements are typically referred to 
as nonattainment SIP or attainment plan elements, which would be due by 
the dates statutorily prescribed under subpart 2 through 5 under part 
D, extending as far as 10 years following designations for some 
elements.
    The second PSD requirement for PM2.5 is contained in the 
EPA's October 20, 2010 rule, ``Prevention of Significant Deterioration 
(PSD) for Particulate Matter Less Than 2.5 Micrometers 
(PM2.5)--Increments, Significant Impact Levels (SILs) and 
Significant Monitoring Concentration (SMC)'' (75 FR 64864). The EPA 
regards adoption of the PM2.5 increments as a necessary 
requirement when assessing a PSD program for the purposes of Element 
(C). On July 25, 2011 (76 FR 44265), the EPA approved SIP revisions 
that revised Wyoming's PSD program which incorporated the 2008 
Implementation Rule. The EPA approved revisions to reflect the 2010 
PM2.5 Increment Rule on December 6, 2013 (78 FR 73445). 
Therefore, Wyoming's SIP approved PSD program meets current 
requirements for PM2.5.
    Therefore, the EPA is proposing to approve Wyoming's infrastructure 
SIP for the 2008 Pb, 2008 ozone, 2010 NO2, 2010 
SO2 and 2012 PM2.5 NAAQS with respect to the 
requirement in section 110(a)(2)(C) to include a PSD permitting program 
in the SIP that covers the requirements for all regulated NSR 
pollutants as required by part C of the Act.

Minor NSR

    The State has a SIP-approved minor NSR program, adopted under 
section 110(a)(2)(C) of the Act. The minor NSR program is found in 
Chapter 6, Section 2 of the WAQSR. The EPA previously approved 
Wyoming's minor NSR program into the SIP (at that time as Chapter 1, 
Section 21), and has subsequently approved revisions to the program, 
and at those times there were no objections to the provisions of this 
program. (See, for example, 47 FR 5892, February 9, 1982). Since then, 
the State and the EPA have relied on the State's existing minor NSR 
program to assure that new and modified sources not captured by the 
major NSR permitting program do not interfere with attainment and 
maintenance of the NAAQS.
    The EPA is proposing to approve Wyoming's infrastructure SIP for 
the 2008 Pb, 2010 NO2, 2010 SO2 and 2012 
PM2.5 NAAQS with respect to the general requirement in 
section 110(a)(2)(C) to include a program in the SIP that regulates the 
enforcement of control measures in the SIP, and the modification and 
construction of any stationary source as necessary to assure that the 
NAAQS are achieved.
    4. Interstate transport: The interstate transport provisions in CAA 
section 110(a)(2)(D)(i) require each state to submit a SIP that 
prohibits emissions that will have certain adverse air quality effects 
in other states. CAA section 110(a)(2)(D)(i) identifies four distinct 
prongs related to the impacts of air pollutants transported across 
state lines. The two prongs under 110(a)(2)(D)(i)(I) require SIPs to 
contain adequate provisions to prohibit any source or other type of 
emissions activity within the state from emitting air pollutants that 
will (prong 1) contribute significantly to nonattainment in any other 
state with respect to any such national primary or secondary NAAQS, and 
(prong 2) interfere with maintenance by any other state with respect to 
the same NAAQS. The two prongs under 110(a)(2)(D)(i)(II) require SIPs 
to contain adequate provisions to prohibit emissions that will 
interfere with measures required to be included in the applicable 
implementation plan for any other state under part C (prong 3) to 
prevent significant deterioration of air quality or (prong 4) to 
protect visibility. In this action, the EPA is only addressing prong 3 
of CAA section 110(a)(2)(D)(i)(II) for the 2008 Pb, 2010 
SO2, 2010 NO2 and 2012 PM2.5 NAAQS. 
All other transport prongs will be addressed in separate rulemaking 
actions.

Evaluation of Interference With Measures To Prevent Significant 
Deterioration (PSD)

    With regard to the PSD portion of CAA section 110(a)(2)(D)(i)(II), 
this requirement may be met by a state's confirmation in an 
infrastructure SIP submission that new major sources and major 
modifications in the state are subject to a comprehensive EPA-approved 
PSD permitting program in the SIP that applies to all regulated NSR 
pollutants and that satisfies the requirements of the EPA's PSD 
implementation rules.\5\ As noted in the discussion for infrastructure 
element (C) earlier in this notice, the EPA is proposing to approve CAA 
section 110(a)(2) element (C) for Wyoming's infrastructure SIP for the 
2008 Pb, 2010 NO2, 2010 SO2, and 2012 
PM2.5 NAAQS with respect to PSD requirements. As discussed 
in detail in that section, Wyoming's SIP meets the current PSD-related 
requirements of section 110(a)(2)(C). For this reason, we are also 
proposing to approve Wyoming's infrastructure SIP as meeting the 
110(a)(2)(D)(i)(II) prong 3 (PSD) requirements for the 2008 Pb, 2010 
NO2, 2010 SO2 and 2012 PM2.5 NAAQS.
---------------------------------------------------------------------------

    \5\ See 2013 Memo at 31.
---------------------------------------------------------------------------

    In-state sources not subject to PSD for a particular NAAQS because 
they are in

[[Page 78534]]

a nonattainment area for that standard may also have the potential to 
interfere with PSD in an attainment or unclassifiable area of another 
state.\6\ One way a state may satisfy prong 3 with respect to these 
sources is by citing an air agency's EPA-approved nonattainment NSR 
provisions addressing any pollutants for which the state has designated 
nonattainment areas. Wyoming has a SIP-approved nonattainment NSR 
program which ensures regulation of major sources and major 
modifications in nonattainment areas, and therefore satisfies prong 3 
with regard to this requirement.\7\
---------------------------------------------------------------------------

    \6\ Id. at 31.
    \7\ See WAQSR Chapter 6, Section 13.
---------------------------------------------------------------------------

    The EPA is proposing to approve the infrastructure SIP submission 
with regard to the requirements of prong 3 of section 
110(a)(2)(D)(i)(II) for the 2008 Pb, 2010 NO2, 2010 
SO2 and 2012 PM2.5 NAAQS.
    5. Interstate and International transport provisions: CAA section 
110(a)(2)(D)(ii) requires SIPs to include provisions ensuring 
compliance with the applicable requirements of CAA sections 126 and 115 
(relating to interstate and international pollution abatement, 
respectively). Specifically, section 126(a) of the CAA requires major 
new or modified sources to notify affected, nearby states of the 
source's potential impacts on air pollution. Sections 126(b) and (c) 
pertain to petitions affected states may seek from the Administrator of 
the EPA (Administrator) regarding sources violating the ``interstate 
transport'' provisions of section 110(a)(2)(D)(i). Section 115 of the 
CAA similarly pertains to international transport of air pollution.
    As required by 40 CFR 51.166(q)(2)(iv), Wyoming's SIP-approved PSD 
program requires major new or modified sources to provide notice to 
states whose air quality may be impacted by the emissions of sources 
subject to PSD.\8\ This suffices to meet the notice requirement of 
section 126(a).
---------------------------------------------------------------------------

    \8\ See WAQSR Chapter 6, Section 2.
---------------------------------------------------------------------------

    Wyoming has no pending obligations under sections 126(c) or 115(b) 
of the CAA; therefore, its SIP currently meets the requirements of 
those sections. In summary, the SIP meets the requirements of CAA 
section 110(a)(2)(D)(ii), and the EPA is therefore proposing approval 
of this element for the 2008 Pb, 2008 ozone, 2010 NO2, 2010 
SO2 and 2012 PM2.5 NAAQS.
    6. Adequate resources: Section 110(a)(2)(E)(i) requires states to 
provide ``necessary assurances that the state [. . .] will have 
adequate personnel, funding, and authority under State law to carry out 
[the SIP] (and is not prohibited by any provision of federal or state 
law from carrying out the SIP or portion thereof).'' Section 
110(a)(2)(E)(ii) also requires each state to ``comply with the 
requirements respecting state boards'' under CAA section 128. Section 
110(a)(2)(E)(iii) requires states to provide ``necessary assurances 
that, where the State has relied on a local or regional government, 
agency, or instrumentality for the implementation of any [SIP] 
provision, the State has responsibility for ensuring adequate 
implementation of such [SIP] provision.''
a. Sub-Elements (i) and (iii): Adequate Personnel, Funding, and Legal 
Authority Under State Law To Carry Out Its SIP, and Related Issues
    The provisions contained in Articles 1 and 2 of the Wyoming 
Environmental Quality Act (WEQA) (Chapter 11, Title 35 of the Wyoming 
Statutes) give the State adequate authority to carry out its SIP 
obligations with respect to the 2008 Pb, 2008 ozone, 2010 
NO2, 2010 SO2 and 2012 PM2.5 NAAQS.
    With respect to funding, the State receives sections 103 and 105 
grant funds through its Performance Partnership Grant along with 
required state matching funds to provide funding necessary to carry out 
Wyoming's SIP requirements.
    Wyoming's Performance Partnership Agreement (available within the 
docket) with the EPA documents resources needed to carry out agreed 
upon environmental program goals, measures, and commitments, including 
developing and implementing appropriate SIPs for all areas of the 
State. Annually, states update these grant commitments based on current 
SIP requirements, air quality planning, and applicable requirements 
related to the NAAQS. Wyoming satisfactorily met all commitments agreed 
to in the Air Planning Agreement for fiscal year 2015. Furthermore, 
WAQSR Chapter 6, Section 2(a)(v), Permit for construction, 
modification, and operation, requires the owner and operator of each 
new major source or major modification to pay a fee sufficient to cover 
the cost of reviewing and acting on permit applications. Collectively, 
these rules and commitments provide evidence that the Wyoming DEQ has 
adequate personnel (see non-regulatory document, Resources Document, 
cited in Wyoming's certifications), funding, and legal authority to 
carry out the State's implementation plan and related issues.
    With respect to section 110(a)(2)(E)(iii), the State does not rely 
upon any other local or regional government, agency or instrumentality 
for implementation of the SIP. Therefore, we propose to approve 
Wyoming's SIP as meeting the requirements of section 110(a)(2)(E)(i) 
and (E)(iii) for the 2008 Pb, 2008 ozone, 2010 NO2, 2010 
SO2 and 2012 PM2.5 NAAQS.
b. Sub-Element (ii): State Boards
    Section 110(a)(2)(E)(ii) requires each state's SIP to contain 
provisions that comply with the requirements of section 128 of the CAA. 
Section 128 contains two explicit requirements: (i) That ``any board or 
body which approves permits or enforcement orders under [the CAA] shall 
have at least a majority of members who represent the public interest 
and do not derive any significant portion of their income from persons 
subject to permits or enforcement orders'' under the CAA; and (ii) that 
``any potential conflicts of interest by members of such board or body 
or the head of an executive agency with similar powers be adequately 
disclosed.''
    In our December 6, 2013 (78 FR 73445) action, we disapproved 
Wyoming's March 26, 2008 and August 19, 2011 infrastructure SIP 
submissions for the 1997 and 2006 PM2.5 NAAQS for CAA 
Section 110(a)(2)(E)(ii) because the Wyoming SIP did not contain 
provisions meeting requirements of CAA section 128(a)(1) or (2). Under 
section 110(c)(1)(B), this disapproval started a two-year clock for the 
EPA to promulgate a federal implementation plan (FIP) to address the 
deficiency.
    On May 31, 2016, the EPA received a submission from the State of 
Wyoming to address the requirements of section 128 by adopting 
revisions to Chapter 1, Section 16 of the Wyoming Department of 
Environmental Quality General Rules of Practice and Procedure. The 
Wyoming Environmental Quality Council approved these revisions on March 
2, 2016. A copy of the submission, which includes as revisions, the 
addition of Section 16, Air Quality Division, State Implementation 
Plan, to Chapter 1, is available within this docket. These rules 
address board composition and conflict of interest requirements of 
section 128(a)(1) and (2). We propose to approve this new rule language 
as meeting the requirements of section 128 for the reasons explained in 
more detail below. Because this revision meets the requirements of 
section 128, we also propose to approve the State's infrastructure SIP 
submissions for element 110(a)(2)(E)(ii). The State submitted the 
provisions to meet section 128 separately, but section 128 is not

[[Page 78535]]

NAAQS-specific and once the State has met the requirements of section 
128, that is sufficient for purposes of section 110(a)(2)(E)(ii) for 
all NAAQS. If we finalize this proposed approval for the 2008 Pb, 2008 
ozone, 2010 NO2, 2010 SO2 and 2012 
PM2.5 NAAQS, this will also resolve the prior disapproval 
for element 110(a)(2)(E)(ii) for the 1997 and 2006 PM2.5 
NAAQS and terminate the EPA's FIP obligation.
    We are proposing to approve the State's May 31, 2016 SIP submission 
as meeting the requirements of section 128 because we believe that it 
complies with the statutory requirements and is consistent with the 
EPA's guidance recommendations concerning section 128. In 1978, the EPA 
issued a guidance memorandum recommending ways states could meet the 
requirements of section 128, including suggested interpretations of 
certain key terms in section 128.\9\ In this proposed notice, we 
discuss additional relevant aspects of section 128. We first note that, 
in the conference report of the 1977 amendments to the CAA, the 
conference committee stated, ``[i]t is the responsibility of each state 
to determine the specific requirements to meet the general requirements 
of [section 128].'' \10\ This legislative history indicates that 
Congress intended states to have some latitude in adopting SIP 
provisions with respect to section 128, so long as states meet the 
statutory requirements of the section. We also note that Congress 
explicitly provided in section 128 that states could elect to adopt 
more stringent requirements, as long as the minimum requirements of 
section 128 are met.
---------------------------------------------------------------------------

    \9\ Memorandum from David O. Bickart, Deputy General Counsel, to 
Regional Air Directors, Guidance to States for Meeting Conflict of 
Interest Requirements of Section 128 (Mar. 2, 1978).
    \10\ H.R. Rep. 95-564 (1977), reprinted in 3 Legislative History 
of the Clean Air Act Amendments of 1977, 526-27 (1978).
---------------------------------------------------------------------------

    In implementing section 128, the EPA has identified a number of key 
considerations relevant to evaluation of a SIP submission. The EPA has 
identified these considerations in the 1978 guidance and in subsequent 
rulemaking actions on SIP submissions relevant to section 128, whether 
as SIP revisions for this specific purpose or as an element of broader 
actions on infrastructure SIP submissions for one or more NAAQS.
    Each state must meet the requirements of section 128 through 
provisions that the EPA approves into the state's SIP and are thus made 
federally enforceable. Section 128 explicitly mandates that each SIP 
``shall contain requirements'' that satisfy subsections 128(a)(1) and 
128(a)(2). A mere narrative description of state statutes or rules, or 
of a state's current or past practice in constituting a board or body 
and in disclosing potential conflicts of interest, is not a requirement 
contained in the SIP and does not satisfy the plain text of section 
128.
    Subsection 128(a)(1) applies only to states that have a board or 
body that is composed of multiple individuals and that, among its 
duties, approves permits or enforcement orders under the CAA. It does 
not apply in states that have no such multi-member board or body that 
performs these functions, and where instead a single head of an agency 
or other similar official approves permits or enforcement orders under 
the CAA. This flows from the text of section 128, for two reasons. 
First, as subsection 128(a)(1) refers to a majority of members of the 
board or body in the plural, we think it reasonable to read subsection 
128(a)(1) as not creating any requirements for an individual with sole 
authority for approving permits or enforcement orders under the CAA. 
Second, subsection 128(a)(2) explicitly applies to the head of an 
executive agency with ``similar powers'' to a board or body that 
approves permits or enforcement orders under the CAA, while subsection 
128(a)(1) omits any reference to heads of executive agencies. We infer 
that subsection 128(a)(1) should not apply to heads of executive 
agencies who approve permits or enforcement orders. States with no 
multi-member board or body that performs these functions, and instead 
have a single head of an agency or other similar official who approves 
CAA permits or enforcement orders, can satisfy the requirements of CAA 
128(a)(1) with a negative declaration to that effect.
    Subsection 128(a)(2) applies to all states, regardless of whether 
the state has a multi-member board or body that approves permits or 
enforcement orders under the CAA. Although the title of section 128 is 
``State boards,'' the language of subsection 128(a)(2) explicitly 
applies where the head of an executive agency, rather than a board or 
body, approves permits or enforcement orders. In instances where the 
head of an executive agency delegates his or her power to approve 
permits or enforcement orders, or where statutory authority to approve 
permits or enforcement orders is nominally vested in another state 
official, the requirement to adequately disclose potential conflicts of 
interest still applies. In other words, the EPA interprets section 
128(a)(2) to apply to all states, regardless of whether a state board 
or body approves permits or enforcement orders under the CAA or whether 
a head of a state agency (or his/her delegates) performs these duties. 
Thus, all state SIPs must contain provisions that require adequate 
disclosure of potential conflicts of interest in order to meet the 
requirements of subsection 128(a)(2). The question of which entities or 
parties must be subject to such disclosure requirements must be 
evaluated by states and the EPA in light of the specific facts and 
circumstances of each state's regulatory structure.
    A state may satisfy the requirements of section 128 by submitting 
for adoption into the SIP a provision of state law that closely tracks 
or mirrors the language of the applicable provisions of section 128. A 
state may take this approach in two ways. First, the state may adopt 
the language of subsections 128(a)(1) and 128(a)(2) verbatim. Under 
this approach, the state will be able to meet the continuing 
requirements of section 128 without any additional, future SIP 
revisions, even if the state adds or removes authority, either at the 
state or local level, to individual or to boards or bodies to approve 
permits or enforcement orders under the CAA so long as the state 
continues to meet section 128 requirements.
    Second, the state may modify the language of subsections 128(a)(1) 
(if applicable) and 128(a)(2) to name the particular board, body, or 
individual official with approval authority. In this case, if the state 
subsequently modifies that authority, the state may have to submit a 
corresponding SIP revision to meet the continuing requirements of 
section 128. If the state chooses to not mirror the language of section 
128, the state may adopt state statutes and/or regulations that 
functionally impose the same requirements as those of section 128, 
including definitions for key terms such as those recommended in the 
EPA's 1978 guidance. While either of these approaches would meet the 
minimum requirements of section 128, the statute also explicitly 
authorizes states to adopt more stringent requirements, for example, to 
impose additional requirements for recusal of board members from 
decisions, above and beyond the explicit board composition 
requirements. Although such recusal alone does not meet the 
requirements of section 128, states have the authority to require such 
recusal over and above the explicit requirements of section 128. These 
approaches give states flexibility in implementing section 128, while 
still ensuring consistency with the statute.

[[Page 78536]]

    As previously explained, the EPA interprets subsection 128(a)(1) to 
apply only to states that have a board or body with multiple members 
that, among its duties, approves permits or enforcement orders under 
the Act. Wyoming's Environmental Quality Act establishes the 
Environmental Quality Council (EQC or Council), a separate agency of 
state government. See Wyoming Statutes 35-11-111(a). The members of the 
Council are appointed by the Governor. Among the duties of the Council 
are conducting hearings in any case contesting the administration or 
enforcement of any law, rule, regulation, standard or order issued or 
administered by DEQ or by any division of DEQ. Id. at 35-11-
112(a)(iii). In particular, a person subject to a DEQ order may request 
a hearing before the Council. Id. at 35-11-701(c)(ii)-(iv). The Council 
must also conduct hearings in any case contesting the grant, denial, 
suspension, revocation or renewal of any permit authorized or required 
by the Environmental Quality Act. Id. at 35-11-112(a)(iv). Under 
Article 2, Air Quality, and Article 8, Permits, of the Environmental 
Quality Act, any applicant for an air permit may petition the Council 
for a hearing to contest DEQ's decision on the permit. See id. at 35-
11-208; 35-11-802.
    Given the duties and authorities of the Council, the Council 
appears to be a ``board or body which approves permits or enforcement 
orders'' under the CAA.\11\ As the EPA has explained in other 
rulemaking actions, e.g., 78 FR 32613 (May 31, 2013), we interpret 
section 128(a)(1) to mean that boards that are the potential final 
decisionmaker via permit and enforcement order appeals ``approve'' 
those permits and enforcement orders. For example, by being the final 
decisionmaker with respect to questions such as whether a source 
receives a permit and the specific contents of such a permit, the 
Council is an entity that approves the permit within the meaning of 
128(a)(1). Thus, the EQC is subject to the requirements of 128(a)(1). 
Wyoming's May 31, 2016 submission includes a provision in the Wyoming 
DEQ Chapter 1, General Rules of Practice and Procedure Section 
16(a)(i), Air Quality Division, State Implementation Plan, which 
provides that the Council ``shall have at least a majority of members 
who represent the public interest and do not derive a significant 
portion of their income from persons subject to Air Quality permits or 
enforcement orders, as required by the Clean Air Act, Section 
128(a)(1).'' We propose to approve this submission as satisfying the 
requirements of subsection 128(a)(1).
---------------------------------------------------------------------------

    \11\ See, e.g., 78 FR 32613 (May 31, 2013), for a discussion of 
the phrase ``board or body which approves permits or enforcement 
orders.''
---------------------------------------------------------------------------

    The State's May 31, 2016 submittal includes requirements that 
Council members ``disclose any potential conflicts of interest in a 
public meeting of the Council as required by the Clean Air Act, Section 
128(a)(2).'' Thus, Wyoming's submittal addresses disclosure of 
potential conflicts of interest from Council members that approve 
permits and enforcement orders under the Act. We therefore propose to 
approve this submission as satisfying the requirements of subsection 
128(a)(2).
    In summary, the EPA proposes to approve Wyoming's May 31, 2016 
submittal into the SIP to meet the requirements of section 128 of the 
Act. We also propose to approve Wyoming's infrastructure SIP with 
respect to the requirements of Section 110(a)(2)(E)(ii) for 2008 Pb, 
2008 ozone, 2010 NO2, 2010 SO2 and 
2012 PM2.5 NAAQS.
    7. Stationary source monitoring system: Section 110(a)(2)(F) 
requires: (i) ``The installation, maintenance, and replacement of 
equipment, and the implementation of other necessary steps, by owners 
or operators of stationary sources to monitor emissions from such 
sources; (ii) periodic reports on the nature and amounts of emissions 
and emissions-related data from such sources; and (iii) correlation of 
such reports by the State agency with any emission limitations or 
standards established pursuant to [the Act], which reports shall be 
available at reasonable times for public inspection.''
    Wyoming's SIP approved monitoring provision cited by Wyoming in its 
certifications (WAQSR Chapter 6, Section 2, Permit requirements for 
construction, modification, and operation), pertains to its program of 
periodic emissions testing and plant inspections of stationary sources, 
and related testing requirements and protocols (including periodic 
reporting) to assure compliance with emissions limits. Additionally, 
WAQSR Chapter 7, Section 2 (Continuous monitoring requirements for 
existing sources), requires certain sources to install and maintain 
continuous emission monitors to assure compliance with emission 
limitations.
    Furthermore, Wyoming is required to submit emissions data to the 
EPA for purposes of the National Emissions Inventory (NEI). The NEI is 
the EPA's central repository for air emissions data. The EPA published 
the Air Emissions Reporting Rule (AERR) on December 5, 2008, which 
modified the requirements for collecting and reporting air emissions 
data (73 FR 76539). The AERR shortened the time states had to report 
emissions data from 17 to 12 months, giving states one calendar-year to 
submit emissions data. All states are required to submit a 
comprehensive emissions inventory every three years and report 
emissions for certain larger sources annually through the EPA's online 
Emissions Inventory System. States report emissions data for the six 
criteria pollutants and their associated precursors--nitrogen oxides, 
sulfur dioxide, ammonia, lead, carbon monoxide, particulate matter and 
volatile organic compounds. Many states also voluntarily report 
emissions of hazardous air pollutants. Wyoming made its latest update 
to the NEI in May 2016. The EPA compiles the emissions data, 
supplementing it where necessary, and releases it to the general public 
through the Web site https://www.epa.gov/air-emissions-inventories.
    Based on the analysis above, we propose to approve the Wyoming SIP 
as meeting the requirements of CAA section 110(a)(2)(F) for the 2008 
Pb, 2008 ozone, 2010 NO2, 2010 SO2 and 
2012 PM2.5 NAAQS.
    8. Emergency powers: Section 110(a)(2)(G) of the CAA requires 
infrastructure SIPs to ``provide for authority comparable to that in 
[CAA section 303] and adequate contingency plans to implement such 
authority[.]''
    Under CAA section 303, the EPA Administrator has authority to bring 
suit to immediately restrain an air pollution source that presents an 
``imminent and substantial endangerment to public health or welfare, or 
the environment.'' \12\ If such action may not practicably assure 
prompt protection, then the Administrator has authority to issue 
temporary administrative orders to protect the public health or 
welfare, or the environment, and such orders can be extended if the EPA 
subsequently files a civil suit. We propose to find that Wyoming's 
infrastructure SIP submittals provide for authority for the State 
comparable to that granted to the EPA Administrator to act in the face 
of an imminent and substantial endangerment to the public's health or 
welfare, or the environment.
---------------------------------------------------------------------------

    \12\ A discussion of the requirements for meeting CAA section 
303 is provided in our notice of proposed rulemaking: Promulgation 
of State Implementation Plan Revisions; Infrastructure Requirements 
for the 1997 and 2006 PM2.5, 2008 Lead, 2008 Ozone, and 
2010 NO2 National Ambient Air Quality Standards; South 
Dakota (79 FR 71040, Dec. 1, 2014) under ``VI. Analysis of State 
Submittals, 8. Emergency powers.''

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[[Page 78537]]

    Wyoming's SIP certifications with regard to the section 
110(a)(2)(G) emergency order requirements cite EPA approved provisions 
(WAQSR Chapter 12, Section 2, Air pollution emergency episodes) which 
establish a basis for the Division to issue notices to the public 
relating to levels of air pollution from ``alerts,'' ``warnings,'' and 
``emergencies'' to prevent ``a substantial threat to the health of 
persons'' if ``such [pollution] levels are sustained or exceeded'' in 
places that are attaining or have attained such pollution levels. WAQSR 
Chapter 12, Section 2(a) allows for the broad application of this 
provision to ``air pollutants'' beyond PM10 and 
SO2. Sections 35-11-115(a) and (b) of the WEQA also provides 
the Director power to issue emergency orders ``to reduce or discontinue 
immediately the actions causing the condition of pollution'' and 
institute ``a civil action for immediate injunctive relief to halt any 
activity'' presenting an ``immediate and substantial danger to human or 
animal health or safety.''
    Furthermore, as stated in Wyoming's 2012 PM2.5 
certification, WEQA Section 35-11-901(a) authorizes the DEQ to seek a 
penalty or injunction from a court of competent jurisdiction for 
``[a]ny person who violates, or any director, officer or agent of a 
corporate permittee who willfully and knowingly authorizes, orders or 
carries out the violation of any provision of this act, or any rule, 
regulation, standard or permit adopted hereunder or who violates any 
determination or order of the council pursuant to this act or any rule, 
regulation, standard permit, license or variance. . .''
    While no single Wyoming statute mirrors the authorities of CAA 
section 303, we propose to find that the combination of WEQA and WAQSR 
provisions previously discussed provide for authority comparable to 
section 303. Section 303 authorizes the Administrator to immediately 
bring suit to restrain and issue emergency orders when necessary, and 
to take prompt administrative action against any person causing or 
contributing to air pollution that presents an imminent and substantial 
endangerment to public health or welfare, or the environment. 
Therefore, we propose that Wyoming's SIP submittals sufficiently meet 
the requirements of CAA 110(a)(2)(G) because they demonstrate that 
Wyoming has authority comparable to CAA section 303.
    States must also have adequate contingency plans adopted into their 
SIP to implement the air agency's emergency episode authority (as 
previously discussed). This can be done by submitting a plan that meets 
the applicable requirements of 40 CFR part 51, subpart H for the 
relevant NAAQS if the NAAQS is covered by those regulations. The EPA 
approved Wyoming's Emergency Episode Plan on February 9, 1982 at 47 FR 
5892. We find that Wyoming's Emergency Episode Plan and air pollution 
emergency rules (WAQSR Chapter 12, Section 2, Air pollution emergency 
episodes) include PM10 \13\ and SO2 \14\; 
establish stages of episode criteria; provide for public announcement 
whenever any episode stage has been determined to exist; and specify 
emission control actions to be taken at each episode stage, consistent 
with the EPA emergency episode SIP requirements set forth at 40 CFR 
part 51 subpart H (prevention of air pollution emergency episode) for 
particulate matter, ozone, NO2, and SO2.
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    \13\ The EPA has not yet promulgated regulations for ambient 
levels pertaining to priority levels for PM2.5 under the 
2012 NAAQS (2013 Memo, p. 47). The EPA's September 25, 2009 Memo 
(available within the docket) suggested that states with areas that 
have had a PM2.5 exceedance greater than 140.4 mg/
m3 should develop and submit an emergency episode plan. 
If no such concentration was recorded in the last three years, the 
guidance suggested that the State can rely on its general emergency 
authorities. In this rulemaking, we continue to view these 
suggestions as appropriate in assessing Wyoming's SIP for this 
element. Wyoming has not had such a recorded PM2.5 level 
and thus an emergency episode plan for PM2.5 is not 
necessary. The SIP therefore meets the requirements of CAA section 
110(a)(2)(G) for the 2012 PM2.5 NAAQS.
    \14\ As stated in Wyoming's 2012 PM2.5 infrastructure 
SIP certification, ``WAQSR Chapter 12, Emergency Controls, 
establishes a basis for the Division to issue air pollution alerts, 
warnings, or emergencies in order to prevent the occurrence of an 
air pollution emergency stemming from the effects of air pollutants 
on the health of persons. While guidance for the issuance of alerts, 
warnings, or emergencies is established specifically for 
PM10 and SO2, the chapter does not limit its 
purview to these two pollutants--and could encompass other 
pollutants such as PM2.5.'' Furthermore, Wyoming is not 
required to have a specific contingency plan for particulate matter, 
ozone, NO2, or SO2 (see 40 CFR 52.2621).
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    As noted in the 2011 Memo ``based on [the] EPA's experience to date 
with the Pb NAAQS and designating Pb nonattainment areas, [the] EPA 
expects that an emergency episode associated with Pb emissions would be 
unlikely and, if it were to occur, would be the result of a malfunction 
or other emergency situation at a relatively large source of Pb'' (page 
14).\15\ Accordingly, the EPA believes the central components of a 
contingency plan would be to reduce emissions from the source at issue 
and communicate with the public as needed. We note that 40 CFR part 51, 
subpart H (51.150-51.152) and 40 CFR part 51, appendix L do not apply 
to Pb.
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    \15\ October 14, 2011, ``Guidance on Infrastructure SIP Elements 
Required Under Sections 110(a)(1) and (2) for the 2008 Lead (Pb) 
National Ambient Air Quality Standards (NAAQS).''
---------------------------------------------------------------------------

    Based on the above analysis, we propose approval of Wyoming's SIP 
as meeting the requirements of CAA section 110(a)(2)(G) for the 2008 
Pb, 2008 ozone, and 2010 NO2, 2010 SO2 and 2012 
PM2.5 NAAQS.
    9. Future SIP revisions: Section 110(a)(2)(H) requires that SIPs 
provide for revision of such plan: (i) ``[f]rom time to time as may be 
necessary to take account of revisions of such national primary or 
secondary ambient air quality standard or the availability of improved 
or more expeditious methods of attaining such standard[;] and (ii) 
except as provided in paragraph (3)(C), whenever the Administrator 
finds on the basis of information available to the Administrator that 
the [SIP] is substantially inadequate to attain the [NAAQS] which it 
implements or to otherwise comply with any additional requirements 
under this [Act].''
    The general provisions in Article 1 of the WEQA (Article 1, Chapter 
11, Title 35 of the Wyoming Statutes) and the particular provision in 
Article 2, section 35-11-202 of the Wyoming Statutes, gives the 
Director sufficient authority to meet the requirements of CAA section 
110(a)(2)(H). Therefore, we propose to approve Wyoming's SIP as meeting 
the requirements of CAA section 110(a)(2)(H).
    10. Consultation with government officials, public notification, 
PSD and visibility protection: Section 110(a)(2)(J) requires that each 
SIP ``meet the applicable requirements of section 121 of this title 
(relating to consultation), section 127 of this title (relating to 
public notification), and part C of this subchapter (relating to PSD of 
air quality and visibility protection).''
    In its certifications, the State cites one non-regulatory document 
relative to consultation with government officials (e.g., Consultation, 
approved by EPA July 2, 1979 (44 FR 38473)) to meet the requirements of 
CAA section 121. The State has demonstrated that it has the authority 
and rules in place to provide a process of consultation with general 
purpose local governments, designated organizations of elected 
officials of local governments and any Federal Land Manager having 
authority over federal land to which the SIP applies, consistent with 
the requirements of CAA section 121 (see Wyoming's non-regulatory 
document, Intergovernmental Cooperation). Furthermore, the non-
regulatory document, Public Notification of Air Quality, approved by 
EPA July 2, 1979 (44 FR 38473), cited by Wyoming, meets the general 
requirements of CAA section 127 to

[[Page 78538]]

notify the public when the NAAQS have been exceeded.
    Wyoming's SIP regulations for its PSD program were first federally-
approved and made part of the SIP on September 6, 1979 (44 FR 51977). 
The EPA has further evaluated the State's SIP-approved PSD program in 
section VI.3 which discusses element 110(a)(2)(C) of this proposed 
action. As explained in that section, we propose to approve Wyoming's 
infrastructure SIPs for the 2008 Pb, 2010 NO2, 2010 
SO2 and 2012 PM2.5 NAAQS with respect to the 
requirement in element (C) to have a permit program as required by Part 
C of the Act. We similarly propose to approve the infrastructure SIPs 
for the 2008 Pb, 2010 NO2, 2010 SO2 and 2012 
PM2.5 NAAQS with respect to the requirement in element (J) 
that the SIP meet the applicable requirements of Part C with respect to 
PSD.
    Finally, with regard to the applicable requirements for visibility 
protection, the EPA recognizes states are subject to visibility and 
regional haze program requirements under part C of the Act. In the 
event of the establishment of a new NAAQS, however, the visibility and 
regional haze program requirements under part C do not change. Thus, we 
find that there are no applicable visibility requirements under section 
110(a)(2)(J) when a new NAAQS becomes effective.
    Based on the above analysis, we propose to approve the Wyoming SIP 
as meeting the requirements of CAA section 110(a)(2)(J) for the 2008 
Pb, 2008 ozone, 2010 NO2, 2010 SO2 and 
2012 PM2.5 NAAQS.
    11. Air quality and modeling/data: Section 110(a)(2)(K) requires 
each SIP to provide for: (i) ``the performance of such air quality 
modeling as the Administrator may prescribe for the purpose of 
predicting the effect on ambient air quality of any emissions of any 
air pollutant for which the Administrator has established a [NAAQS]; 
and (ii) the submission, upon request, of data related to such air 
quality modeling to the Administrator.''
    Wyoming's PSD program requires that estimates of ambient air 
concentrations be based on applicable air quality models specified in 
appendix W of 40 CFR part 51, and that modification or substitution of 
a model specified in appendix W must be approved by the Administrator 
(see WAQSR Chapter 6, Section 2(b)(iv)). Additionally, WAQSR Chapter 6, 
Section 2(f)(iv) authorizes the AQD Administrator to impose any 
reasonable conditions upon an approval to construct, modify or operate, 
including modeling ``. . . to determine the effect which emissions from 
a source may have, or is having, on air quality in any area which may 
be affected by emissions from such source.'' Furthermore, the WEQA 35-
11-1101(b) and Wyoming's PPA provide Wyoming with the authority to 
submit air quality modeling date to the Administrator.\16\ As a result, 
the SIP provides for such air quality modeling as the Administrator has 
prescribed.
---------------------------------------------------------------------------

    \16\ See Email from Michael Morris ``Question Regarding iSIP 
Element K- Submission of Air Quality Modeling Data'' September 15, 
2016, available within docket.
---------------------------------------------------------------------------

    Therefore, we propose to approve the Wyoming SIP as meeting CAA 
section 110(a)(2)(K) for the 2008 Pb, 2008 ozone, 2010 
NO2, 2010 SO2 and 2012 PM2.5 NAAQS.
    12. Permitting fees: Section 110(a)(2)(L) requires ``the owner or 
operator of each major stationary source to pay to the permitting 
authority, as a condition of any permit required under this [Act], a 
fee sufficient to cover[:] (i) the reasonable costs of reviewing and 
acting upon any application for such a permit[;] and (ii) if the owner 
or operator receives a permit for such source, the reasonable costs of 
implementing and enforcing the terms and conditions of any such permit 
(not including any court costs or other costs associated with any 
enforcement action), until such fee requirement is superseded with 
respect to such sources by the Administrator's approval of a fee 
program under [title] V.''
    WAQSR Chapter 6, Section 2, paragraph (o) and WEQA sections 35-11-
211(a), Fees, require applicants of construction permits to pay the 
costs for DEQ to review and act on the permit applications. We also 
note that fees collected under Wyoming's approved title V permit 
program (64 FR 8523, Feb, 22, 1990) are sufficient to implement and 
enforce the program (see 59 FR 48802, Sept. 23, 1994). Therefore we 
propose to approve the submissions as submitted by the State for the 
2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2 and 2012 
PM2.5 NAAQS.
    13. Consultation/participation by affected local entities: Section 
110(a)(2)(M) requires states to ``provide for consultation and 
participation [in SIP development] by local political subdivisions 
affected by [the SIP].''
    The non-regulatory document, Intergovernmental Cooperation, cited 
in Wyoming's submittals meets the requirements of CAA section 
110(a)(2)(M). We propose to approve Wyoming's SIP as meeting these 
requirements for the 2008 Pb, 2008 ozone, 2010 NO2, 2010 
SO2 and 2012 PM2.5 NAAQS.

VII. What action is the EPA taking?

    In this action, the EPA is proposing to approve infrastructure 
elements for the 2008 Pb, 2008 ozone, 2010 NO2, 2010 
SO2 and 2012 PM2.5 NAAQS from the State's 
certifications as shown in Table 1. Elements we propose no action on 
are reflected in Table 2. Finally, the EPA is proposing to approve a 
new Wyoming DEQ General Rules of Practice and Procedures submitted on 
May 31, 2016 to satisfy requirements of element (E)(ii),which refers to 
requirements related to state boards.
    A comprehensive summary of infrastructure elements, and additions 
to the Wyoming DEQ Rules of Practice and Procedures organized by the 
EPA's proposed rule action are provided in Table 1 and Table 2.

 Table 1--List of Wyoming Infrastructure Elements and Revisions That the
                       EPA Is Proposing To Approve
------------------------------------------------------------------------
                          Proposed for approval
-------------------------------------------------------------------------
October 12, 2011 submittal--2008 Pb NAAQS: (A), (B), (C), (D)(i)(II)
 prong 3, (D)(ii), (E), (F), (G), (H), (J), (K), (L) and (M).
March 6, 2015 submittal--2010 SO2 NAAQS: (A), (B), (C), (D)(i)(II) prong
 3, (D)(ii), (E), (F), (G), (H), (J), (K), (L) and (M).
February 6, 2014 submittal--2008 Ozone NAAQS: (A), (B), (D)(ii), (E),
 (F), (G), (H), (J), (K), (L) and (M).
January 24, 2014 submittal--2010 NO2 NAAQS: (A), (B), (C), (D)(i)(II)
 prong 3, (D)(ii), (E), (F), (G), (H), (J), (K), (L) and (M).
June 24, 2016 submittal--2012 PM2.5 NAAQS: (A), (B), (C), (D)(i)(II)
 prong 3, (D)(ii), (E), (F), (G), (H), (J), (K), (L) and (M).
May 31, 2016 submittal--New Rules to Wyoming DEQ General Rules of
 Practice and Procedure, CAA Section 128: Chapter 1, General Provisions,
 Section 16, Air Program State Implementation Plan.
------------------------------------------------------------------------

[[Page 78539]]

 Table 2--List of Wyoming Infrastructure Elements and Revisions That the
                  EPA Is Proposing To Take No Action On
------------------------------------------------------------------------
   Proposed for no action (revision to be made in separate rulemaking
                                action.)
-------------------------------------------------------------------------
January 19, 2012 submittal--2008 Pb NAAQS: (D)(i)(I) prongs 1 and 2,
 (D)(i)(II) prong 4.
February 6, 2014 submittal--2008 Ozone NAAQS: (D)(i) prongs 1-4 and (C)
 (proposed action on (D)(i)(II) prong 3 and (C) at 81 FR 53365, Aug. 12,
 2016).
January 31, 2013 submittal--2010 NO2 NAAQS: (D)(i)(I) prongs 1 and 2,
 (D)(i)(II) prong 4.
June 2, 2013 submittal--2010 SO2 NAAQS: (D)(i)(I) prongs 1 and 2,
 (D)(i)(II) prong 4.
December 22, 2015 submittal--2012 PM2.5 NAAQS: (D)(i)(I) prongs 1 and 2,
 (D)(i)(II) prong 4.
------------------------------------------------------------------------

VIII. Incorporation by Reference

    In this rulemaking, 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 Wyoming Department of Environmental 
Quality General Rules of Practice and Procedure, Chapter 1, General 
Provisions, Section 16, Air Program State Implementation Plan Chapter 
1, General Provisions, Section 16, Air Program State Implementation 
Plan pertaining to state board requirements VI.6. b. Sub-element (ii): 
State boards, of this preamble. The EPA has made, and will continue to 
make, these documents generally available through www.regulations.gov 
and/or at the EPA Region 8 office (please contact the person identified 
in the ``For Further Information Contact'' section of this preamble for 
more information).

IX. 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, the 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 the 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 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).

List of Subjects in 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: October 20, 2016.
Shaun L. McGrath,
Regional Administrator, Region 8.
[FR Doc. 2016-26860 Filed 11-7-16; 8:45 am]
 BILLING CODE 6560-50-P
```