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[Federal Register Volume 76, Number 99 (Monday, May 23, 2011)]
[Proposed Rules]
[Pages 29680-29686]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-12600]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2010-0303; FRL-9310-1]

Approval and Disapproval and Promulgation of State Implementation 
Plan Revisions; Infrastructure Requirements for the 1997 8-Hour Ozone 
National Ambient Air Quality Standards; Wyoming

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to partially approve and partially disapprove 
the State Implementation Plan (SIP) submission from the State of 
Wyoming to demonstrate that the SIP meets the requirements of Sections 
110(a)(1) and (2) of the Clean Air Act (CAA) for the National Ambient 
Air Quality Standards (NAAQS) promulgated for ozone on July 18, 1997. 
Section 110(a)(1) of the CAA requires that each state, after a new or 
revised NAAQS is promulgated, review their SIPs to ensure that they 
meet the requirements of the ``infrastructure elements'' of section 
110(a)(2). The State of Wyoming submitted two certifications of their 
infrastructure SIP for the 1997 ozone NAAQS, date December 7, 2007 and 
December 10, 2009. EPA does not propose to act on the State's May 25, 
2007 submission to meet the requirements of section 110(a)(2)(D)(i) of 
the CAA, relating to interstate transport of air pollution, for the 
1997 ozone NAAQS. EPA approved the State's interstate transport SIP 
submission on May 8, 2008 (73 FR 26019). EPA is also proposing to 
approve a Wyoming submittal, dated May 10, 2011, revising the State's 
Prevention of Significant Deterioration (PSD) program.

DATES: Written comments must be received on or before June 22, 2011.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2010-0303, by one of the following methods:
    http://www.regulations.gov. Follow the on-line 
instructions for submitting comments.
     E-mail: dolan.kathy@epa.gov.
     Fax: (303) 312-6064 (please alert the individual listed in 
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
     Mail: Director, Air Program, Environmental Protection 
Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop Street, Denver, 
Colorado 80202-1129.
     Hand Delivery: Director, Air Program, Environmental 
Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop 
Street, Denver, Colorado 80202-1129.

Such deliveries are only accepted Monday through Friday, 8 a.m. to 4:30 
p.m., excluding Federal holidays. Special arrangements should be made 
for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-
2010-0303. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA, without 
going through http://www.regulations.gov your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting 
comments, go to section I, General Information, of the SUPPLEMENTARY 
INFORMATION section of this document.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Air Program, 
Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129. EPA requests that if at all possible, you 
contact the individual listed in the FOR FURTHER INFORMATION CONTACT 
section to view the hard copy of the docket. You may view the hard copy 
of the docket Monday through Friday, 8 a.m. to 4 p.m., excluding 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Kathy Dolan, Air Program, U.S. 
Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129. 303-312-6142, 
dolan.kathy@epa.gov.

SUPPLEMENTARY INFORMATION:

Definitions

    For the purpose of this document, we are giving meaning to certain 
words or initials as follows:
    (i) The words or initials Act or CAA mean or refer to the Clean Air 
Act, unless the context indicates otherwise.
    (ii) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (iii) The initials SIP mean or refer to State Implementation Plan.

Table of Contents

I. General Information
II. Background
III. What infrastructure elements are required under sections 
110(a)(1) and (2)?
IV. How did the State of Wyoming address the infrastructure elements 
of section 110(a)(2)?
V. What action is EPA taking?
VI. Statutory and Executive Order Reviews

[[Page 29681]]

I. General Information

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

    1. Submitting Confidential Business Information (CBI). Do not 
submit CBI to EPA through http://www.regulations.gov or e-mail. Clearly 
mark the part or all of the information that you claim to be CBI. For 
CBI information on a disk or CD-ROM that you mail to EPA, mark the 
outside of the disk or CD-ROM as CBI and then identify electronically 
within the disk or CD-ROM the specific information that is claimed as 
CBI. In addition to one complete version of the comment that includes 
information claimed as CBI, a copy of the comment that does not contain 
the information claimed as CBI must be submitted for inclusion in the 
public docket. Information so marked will not be disclosed except in 
accordance with procedures set forth in 40 CFR part 2.
    2. Tips for preparing your comments. When submitting comments, 
remember to:
    Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register, 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 July 18, 1997, EPA promulgated new NAAQS for ozone based on 8-
hour average concentrations. The 8-hour averaging period replaced the 
previous 1-hour averaging period, and the level of the NAAQS was 
changed from 0.12 parts per million (ppm) to 0.08 ppm (62 FR 38856). By 
statute, SIPs meeting the requirements of sections 110(a)(1) and (2) 
are to be submitted by states within three years after promulgation of 
a new or revised standard. Section 110(a)(2) provides basic 
requirements for SIPs, including emissions inventories, monitoring, and 
modeling, to assure attainment and maintenance of the standards. These 
requirements are set out in several ``infrastructure elements,'' listed 
in section 110(a)(2).
    Section 110(a) imposes the obligation upon states to make a SIP 
submission to EPA for a new or revised NAAQS, and the contents of that 
submission may vary depending upon the facts and circumstances. In 
particular, the data and analytical tools available at the time the 
state develops and submits the SIP for a new or revised NAAQS affects 
the content of the submission. The contents of such SIP submissions may 
also vary depending upon what provisions the state's existing SIP 
already contains. In the case of the 1997 ozone NAAQS, states typically 
have met the basic program elements required in section 110(a)(2) 
through earlier SIP submissions in connection with previous NAAQS. In a 
guidance issued on October 2, 2007, EPA noted that, to the extent an 
existing SIP already meets the section 110(a)(2) requirements, states 
need only to certify that fact via a letter to EPA.\1\
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    \1\ Memorandum from William T. Harnett, Director, Air Quality 
Policy Division, ``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'' (Oct. 2, 2007).
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    On March 27, 2008, EPA published a final rule entitled, 
``Completeness Findings for Section 110(a) State Implementation Plans 
for the 8-hour Ozone NAAQS'' (73 FR 16205). In the rule, EPA made a 
finding for each State that it had submitted or had failed to submit a 
complete SIP that provided the basic program elements of section 
110(a)(2) necessary to implement the 1997 8-hour ozone NAAQS. In 
particular, EPA found that Wyoming had submitted a complete SIP to meet 
these requirements.

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

    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 that 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)(ii): Interstate and international pollution.
     110(a)(2)(E): Adequate resources and authority.
     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 prevention of significant deterioration (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 due at the same time nonattainment area plan requirements 
are due under section 172. The two elements are: (i) section 
110(a)(2)(C) to the extent it refers to permit programs (known as 
``nonattainment new source review (NSR)'') required under part D, and 
(ii) 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).
    This action also does not address the ``interstate transport'' 
requirements of element 110(a)(2)(D)(i). In a separate action, EPA 
approved the State's submission to meet the requirements of 
110(a)(2)(D)(i) for the 1997 ozone NAAQS (73 FR 26019).

IV. How did the State of Wyoming address the infrastructure elements of 
section 110(a)(2)?

    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.

[[Page 29682]]

    a. Wyoming's response to this requirement: Wyoming cited the 
following SIP provisions: Non-regulatory documents: Control Strategy 
Document, Source Surveillance Document and Compliance Schedule Document 
approved by EPA May 31, 1972 (37 FR 10842). Regulatory Documents: 
Wyoming Air Quality Standards and Regulations (WAQSR), Section 2, 
Definitions; Section 18, Diluting and concealing emissions; Section 19, 
Abnormal conditions and equipment malfunction; Section 14, Control of 
particulate emissions; and, Section 10, Nitrogen oxides, approved by 
EPA May 31, 1972 (37 FR 10842). WAQSR, Section 4, Sulfur oxides, 
approved by EPA June 10, 1975 (40 FR 24726). WAQSR, Section 12, Carbon 
monoxide and Section 9, Hydrocarbons, approved by EPA on May 31, 1972 
(37 FR 10842). WAQSR, Section 4, Sulfur oxides, approved by EPA June 
10, 1975 (40 FR 24726). WAQSR, Section 5, Sulfuric acid mist, approved 
by EPA May 31, 1972 (37 FR 10842). WAQSR, Section 25, Sweetwater County 
non-attainment area particulate matter regulations, approved by EPA 
July 2, 1979 (44 FR 38473). WAQSR, Section 13, Open burning 
restrictions, Section 15, Wood waste burners, Section 17, Motor vehicle 
pollution, approved by EPA May 31, 1972 (37 FR 10842). Chapter 1, 
Section 3, Definitions; Section 4, Diluting and concealing emissions; 
Section 5, Abnormal conditions and equipment malfunction; Chapter 3, 
Section 2, Emission standards for particulate matter; Section 3, 
Emission standards for nitrogen oxides; Section 4, Emission standard 
for sulfur oxides; Section 5, Emission standards for carbon monoxide; 
Section 6, Emission standards for volatile organic compounds; Chapter 
4, Section 2, Existing sulfuric acid production units; Section 3, 
Existing nitric acid manufacturing plans; Chapter 8, Section 2, 
Sweetwater County particular matter regulations, Section 3, Conformity 
of general federal actions to state implementation plans; Chapter 10, 
Section 2, Open burning restrictions; Section 3, Wood waste burners; 
Chapter 13, Section 2, Motor vehicle pollution control, approved by EPA 
July 28, 2004 (69 FR 44965).
    b. EPA analysis: Wyoming's SIP meets the requirements of CAA 
section 110(a)(2)(A) for the 1997 ozone NAAQS, subject to the following 
clarifications. First, Wyoming has no areas designated as nonattainment 
for the 1997 ozone NAAQS and, therefore, is not required to establish 
enforceable emission limitations or other emission reduction measures 
to attain the 1997 ozone NAAQS. The SIP provisions cited by Wyoming 
include emissions limitations for ozone precursors: Nitrogen oxides 
(WAQSR Chapter 3, section 3), and volatile organic compounds (WAQSR 
Chapter 3, section 6). These emissions limitations meet the 
requirements of 110(a)(2)(A) for the 1997 ozone NAAQS.
    Second, in this action, 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, 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, EPA is also not proposing to approve or 
disapprove any existing state provisions with regard to excess 
emissions during startup, shutdown, or malfunction (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 plans 
to address such state regulations in the future. In the meantime, EPA 
encourages any state having a deficient SSM provision to take steps to 
correct it as soon as possible.
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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 EPA Air Division Directors, 
``State Implementation Plans (SIPs): Policy Regarding Excess 
Emissions During Malfunctions, Startup, and Shutdown.'' (Sept. 20, 
1999).
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    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.
    a. Wyoming's response to this requirement: Wyoming cited the 
following SIP provisions: Non-regulatory documents: Air Quality 
Surveillance Document, approved by EPA May 31, 1972 (37 FR 10842); Air 
Quality Surveillance Network Document, approved by EPA February 9, 1982 
(47 FR 5892); Implementation Plan for Lead, approved by EPA October 11, 
1984 (49 FR 39843). Regulatory documents: WAQSR, Section 3, 
Particulates; Section 10, Nitrogen Oxides; Section 4, Sulfur oxides; 
Section 12, Carbon monoxide; Section 8, Photochemical oxidants; Section 
6, Sulfation; and, Section 27, Ambient air quality standard for lead, 
approved by EPA October 11, 1984 (49 FR 39843). Chapter 2, Section 2, 
Ambient standards for particular matter; Section 3, Ambient standards 
for nitrogen oxides; Section 4, Ambient standards for sulfur oxides, 
Section 5, Ambient standards for carbon monoxide; Section 6, Ambient 
standards for ozone; Section 8, Ambient standards for suspended 
sulfates; and, Section 10, Ambient standards for lead, approved by EPA 
July 28, 2004 (69 FR 44965).
    b. EPA analysis: Wyoming's air monitoring programs and data systems 
meet the requirements of CAA section 110(a)(2)(B) for the 1997 ozone 
NAAQS. The Wyoming Ambient Air Monitoring Annual Network Plan, 2009, 
was approved by EPA Region 8 on December 3, 2009.
    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.
    a. Wyoming's response to this requirement: Wyoming cited the 
following SIP provisions: Non-regulatory documents: Legal authority 
document; Source Surveillance document; Review of New Sources and 
Modifications Document, approved by EPA May 31, 1972 (37 FR 10842). 
Regulatory documents: 1974 WAQSR, Section 21, Permit requirements for 
construction, modification and operation, approved by EPA June 10, 1975 
(40 FR 24726); 1979 WAQSR, Section 24, Prevention of significant 
deterioration, approved by EPA July 2, 1979 (44 FR 38473). Chapter 6, 
Section 2, Permit requirements for construction, modification, and 
operation and Section 4, Prevention of significant deterioration, 
approved by EPA July 28, 2004 (69 FR 44965).
    b. EPA analysis: As explained above, in this action EPA is not 
evaluating nonattainment related provisions, such as the nonattainment 
NSR program required by part D of the Act. In addition, Wyoming has no 
nonattainment areas for the 1997 ozone NAAQS and is therefore not 
required at this point to have a corresponding nonattainment NSR 
program. EPA is evaluating the State's prevention of

[[Page 29683]]

significant deterioration (PSD) program as required by part C of the 
Act, and the State's minor NSR program as required by 110(a)(2)(C).

GHG Regulation

    Wyoming's PSD program was most recently approved by EPA on July 16, 
2008. As described in our notice of approval (73 FR 40750), Wyoming's 
PSD program at that date met the general requirements of CAA section 
110(a)(2)(C). However, on June 3, 2010, EPA promulgated the 
``Prevention of Significant Deterioration and Title V Greenhouse Gas 
Tailoring Rule'' (``Tailoring Rule'') (75 FR 31514), setting out 
requirements for application of PSD to emissions sources of greenhouse 
gases (GHG). On December 13, 2010, EPA issued a finding of substantial 
inadequacy and SIP call for seven states, including Wyoming, on the 
basis that the states' SIP-approved PSD programs did not apply PSD to 
GHG-emitting sources as required under the Tailoring Rule (75 FR 
77698). Next, on December 29, 2010, EPA issued a finding that the seven 
states had failed to submit revisions to their SIPs as necessary to 
correct this inadequacy (75 FR 81874). Finally, on December 30, 2010, 
EPA established a federal implementation plan (FIP) in the seven states 
to ensure that PSD permits for sources emitting GHGs could be issued in 
accordance with the Tailoring Rule (75 FR 82246). As the Wyoming PSD 
program is currently subject to a finding of substantial inadequacy and 
SIP call, and Wyoming has not taken steps to remedy the inadequacy, EPA 
proposes in this action to disapprove the Wyoming infrastructure SIP 
for each infrastructure element that requires the SIP to contain a PSD 
program that meets the requirements of part C of title I of the Act. 
These elements are 110(a)(2)(C) and (J).

Ozone Precursors

    In addition, in order for the State's SIP-approved PSD program to 
satisfy the requirements of section 110(a)(2)(C) for the 1997 ozone 
NAAQS, the program must properly regulate ozone precursors. On November 
29, 2005, EPA promulgated the phase 2 implementation rule for the 1997 
ozone NAAQS (Phase 2 Rule), which includes requirements for PSD 
programs to treat nitrogen oxides (NOx) as a precursor for ozone (72 FR 
71612). Wyoming has adopted revisions to its PSD program to meet the 
requirements of the Phase 2 rule, and submitted these revisions to EPA 
on May 10, 2011. EPA proposes in this action to concurrently approve 
the PSD program updates in Wyoming's May 11, 2011 submittal, including 
approval of the revisions which meet the requirements of the Phase 2 
Rule. In particular, the revisions in Chapter 6, section 4(a) to the 
definitions of ``major modification,'' ``major stationary source,'' 
``regulated NSR pollutant,'' and ``significant'' meet the requirements 
of 40 CFR 51.166(b)(2)(ii), (b)(1)(ii), (b)(49)(i)(a), and (b)(23)(i), 
respectively, as amended by the Phase 2 Rule (see 70 FR at 71699-700). 
In addition, the revision to section 4(b)(i)(E)(vi)(1)(e) meets the 
requirements of the footnote to 40 CFR 51.166(i)(5)(i)(e). Contingent 
on final approval of these revisions, Wyoming's SIP meets the 
requirement of infrastructure element 110(a)(2)(C) to include a PSD 
program that properly regulates ozone precursors. This approval does 
not negate the disapproval (discussed in the previous paragraph) based 
on the finding of substantial inadequacy and SIP call.
    EPA also proposes approval of the portions of Wyoming's May 11, 
2011 submission which update the State's PSD program to comply with the 
NSR implementation rule for PM2.5 (73 FR 28321, May 16, 
2008), and the inserted definition of ``replacement unit,'' which 
reflects the language of 40 CFR 51.166 (b)(32)(i) through (iv). In 
particular, the revisions in Chapter 6, section 4(a) to the definitions 
of ``regulated NSR pollutant'' and ``significant'' meet the 
requirements of 40 CFR 51.166 (b)(49)(i)(b), (c), (d), and (b)(49)(vi); 
and (b)(23)(i), respectively, as amended by the PM2.5 NSR 
implementation rule (see 73 FR at 28348). In addition, the revisions to 
section 4(b)(i)(E)(vi)(2) and (3) meet the requirements of 40 CFR 
51.166(i)(5)(ii) and (iii), respectively.

Minor NSR

    Finally, with regards to minor NSR, in this action EPA is proposing 
to approve Wyoming's infrastructure SIP for the 1997 ozone NAAQS with 
respect to the general requirement in section 110(a)(2)(C) to include a 
program in the SIP that regulates the modification and construction of 
any stationary source as necessary to assure that the NAAQS are 
achieved. Wyoming's approved minor NSR program is found in Chapter 6, 
section 2 of the WAQSR. 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, Feb. 9, 1982.) Since then, the State and 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 programs do 
not interfere with attainment and maintenance of the NAAQS. EPA is not 
proposing to approve or disapprove the State's existing minor NSR 
program itself to the extent that it is inconsistent with EPA's 
regulations governing this program. A number of states may have minor 
NSR provisions that are contrary to the existing EPA regulations for 
this program. EPA intends to work with states to reconcile state minor 
NSR programs with EPA's regulatory provisions for the program. The 
statutory requirements of section 110(a)(2)(C) provide for considerable 
flexibility in designing minor NSR programs, and it may be time to 
revisit the regulatory requirements for this program to give the states 
an appropriate level of flexibility to design a program that meets 
their particular air quality concerns, while assuring reasonable 
consistency across the country in protecting the NAAQS with respect to 
new and modified minor sources.
    4. Interstate transport: Section 110(a)(2)(D)(i) requires SIPs to 
contain adequate provisions prohibiting, consistent with the provisions 
of this title, any source or other type of emissions activity within 
the state from emitting any air pollutant in amounts which will (I) 
contribute significantly to nonattainment in, or interfere with 
maintenance by, any other state, with respect to any such national 
primary or secondary ambient air quality standard, or (II) interfere 
with measures required to be included in the applicable implementation 
plan for any other state under part C to prevent significant 
deterioration of air quality or to protect visibility.
    a. Wyoming's response to this requirement: Wyoming submitted its 
Interstate Transport SIP to EPA on May 25, 2007.
    b. EPA Analysis: EPA approved the State's Interstate Transport 
provisions for the 1997 ozone NAAQS on May 8, 2008 (73 FR 26019). EPA 
is taking no action relevant to section 110(a)(2)(D)(i) in this 
proposal.
    5. Interstate and International transport provisions: Section 
110(a)(2)(D)(ii) requires that each SIP shall contain adequate 
provisions insuring compliance with applicable requirements of sections 
126 and 115 (relating to interstate and international pollution 
abatement).
    a. Wyoming's response to this requirement: Wyoming did not cite any 
specific provisions relevant to this requirement.
    b. EPA Analysis: Section 126(a) requires notification to affected, 
nearby

[[Page 29684]]

states of major proposed new (or modified) sources. Sections 126(b) and 
(c) pertain to petitions by affected States to the Administrator 
regarding sources violating the ``interstate transport'' provisions of 
section 110(a)(2)(D)(i). Section 115 similarly pertains to 
international transport of air pollution.
    WAQSR Chapter 6, Section 2, specifically paragraph (m) meets the 
requirements of CAA section 126(a) for the 1997 ozone NAAQS. Final 
approval of this language became effective January 30, 1995 (59 FR 
60902, Nov. 29, 1994). Final approval of the renumbering of this 
language became effective August 27, 2004 (See 69 FR 44965, July 28, 
2004).
    Wyoming has no pending obligations under sections 126(c) or 115(b); 
therefore, its SIP currently meets the requirements of those sections. 
The SIP therefore meets the requirements of 110(a)(2)(D)(ii) for the 
1997 ozone NAAQS.
    6. Adequate resources: Section 110(a)(2)(E) requires states to 
provide (i) 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), (ii) requires that the state 
comply with the requirements respecting state boards under section 128, 
and (iii) 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. Wyoming's response to this requirement: Wyoming cited the 
following SIP provisions: Non-regulatory documents: Resources and legal 
authority document submitted to EPA on January 28, 1972 and approved by 
EPA on May 31, 1972 (37 FR 10842). Regulatory document: Chapter 1, 
Section 2, Authority, approved by EPA on July 28, 2004 (69 FR 44965).
    b. EPA Analysis: The provisions in Articles 1 and 2 of the Wyoming 
Environmental Quality Act (Chapter 11, Title 35 of the Wyoming 
Statutes) give the State adequate authority to carry out the SIP. The 
composition of the Wyoming Council of Environmental Quality is governed 
by section 35-11-111(a) of the Wyoming Statutes. Finally, 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. The 
requirements of section 110(a)(2)(E) for the 1997 ozone NAAQS are 
therefore met.
    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.
    a. Wyoming's response to this requirement: Wyoming cited the 
following SIP provisions: Regulatory documents: 1979 WAQSR, Section 23, 
Continuous monitoring requirements for existing sources, approved by 
EPA on July 2, 1979 (44 FR 38473) and Chapter 7, Section 2, Continuous 
monitoring requirements for existing sources, approved by EPA on July 
28, 2004 (69 FR 44965).
    b. EPA Analysis: In addition to the specific monitoring provisions 
cited by Wyoming, the SIP provides for monitoring, recordkeeping, and 
reporting requirements for sources subject to minor and major source 
permitting. (See WAQSR Chapter 6, section 2.) Wyoming's SIP therefore 
meets the requirements of section 110(a)(2)(F) for the 1997 ozone 
NAAQS.
    8. Emergency power: Section 110(a)(2)(G) requires states to provide 
for authority to address activities causing imminent and substantial 
endangerment to public health, including contingency plans to implement 
the emergency episode provisions in their SIPs.
    a. Wyoming's response to this requirement: Wyoming cited the 
following SIP provisions: Non-regulatory documents: Emergency Episode 
Plan Document, approved by EPA May 31, 1972 (37 FR 10842); Emergency 
Episode Contingency Plan Document, approved by EPA February 9, 1982 (47 
FR 5892). Regulatory documents: 1971 WAQSR, Section 20, Air Pollution 
emergency episodes, approved by EPA May 31, 1972 (37 FR 10842) and 
Chapter 12, Section 2, Air pollution emergency episodes, approved by 
EPA July 28, 2004 (69 FR 44965).
    b. EPA analysis: Section 35-11-115 of the Wyoming Statutes gives 
the Director of the Wyoming Department of Environmental Quality (DEQ) 
comparable emergency powers to those in section 303 of the Act. 
Furthermore, Wyoming has not monitored any values above the priority 
cut point for ozone (see 40 CFR 51.150(b)(5)), and is not required at 
this point to have a contingency plan for ozone that meets the 
requirements of 40 CFR part 51, subpart H. The SIP therefore meets the 
requirements of 110(a)(2)(G) for the 1997 ozone NAAQS.
    9. Future SIP revisions: Section 110(a)(2)(H) requires that SIPs 
provide for revision of such plan (i) from 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.
    a. Wyoming's response to this requirement: Wyoming cited the 
following SIP provisions: Non-regulatory document: Implementation Plan 
Review Document, approved by EPA April 19, 1983 (48 FR 16682).
    b. EPA analysis: The general provisions in Article 1 of the Wyoming 
Environmental Quality Act (Article 1, Chapter 11, Title 35 of the 
Wyoming Statutes) and the particular provision in Article 2 at section 
35-11-202 of the Wyoming Statutes give the State sufficient authority 
to revise the SIP as required by section 110(a)(2)(H).
    10. Nonattainment Area Plan or Plan Revision under Part D: Section 
110(a)(2)(I) requires that a SIP or SIP revision for an area designated 
as a nonattainment area must meet the applicable requirements of part D 
of this subchapter (relating to nonattainment areas).
    a. EPA analysis for Section 110(a)(2)(I): As noted above, the 
specific nonattainment area plan requirements of Section 110(a)(2)(I) 
are subject to the timing requirement of Section 172, not the timing 
requirement of Section 110(a)(1). This element is therefore not 
applicable to this action. EPA will take action on part D attainment 
plans through a separate process.
    11. 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 
prevention of significant deterioration of air quality and visibility 
protection).

[[Page 29685]]

    a. Wyoming's response to this requirement: Wyoming cited the 
following SIP provisions: Non-regulatory document: Consultation 
document, approved by EPA July 2, 1979 (44 FR 38473). Regulatory-
document: 1979 WAQSR, Section 24, Prevention of significant 
deterioration, approved by EPA on July 2, 1979 (44 FR 38473); Chapter 
7, Section 4, Prevention of significant deterioration, approved by EPA 
7/28/04 (69 FR 44965)
    b. EPA Analysis:
    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. Furthermore, EPA previously approved portions of the 
Wyoming SIP meeting the requirements of CAA section 127. (44 FR 38473, 
July 2, 1979.)
    As noted above, the State has a SIP-approved PSD program. EPA has 
further evaluated Wyoming's SIP-approved PSD program in this proposed 
action under IV.3, element 110(a)(2)(C). For the same reasons as 
discussed in subsection IV.3, EPA proposes to disapprove the Wyoming 
infrastructure SIP for the 1997 ozone NAAQS specifically for the 
requirement in section 110(a)(2)(J) that the SIP meet the applicable 
requirements of part C of title I of the Act, in particular with 
regards to the requirement that the PSD program apply to GHG sources in 
accordance with the Tailoring Rule.
    Finally, with regard to the applicable requirements for visibility 
protection, EPA recognizes that 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 is no new visibility obligation ``triggered'' under 
section 110(a)(2)(J) when a new NAAQS becomes effective.
    12. Air quality and modeling/data: Section 110(a)(2)(K) requires 
that each SIP 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.
    a. Wyoming's response to this requirement: Wyoming cited the 
following SIP provisions: Regulatory Documents: 1974 WAQSR, Section 21, 
Permit requirements for construction, modification and operation, 
approved by EPA on June 10, 1975 (40 FR 24726); 1979 WAQSR, Section 24, 
Prevention of significant deterioration, approved by EPA on July 2, 
1979 (44 FR 38473); Chapter 6, Section 2, Permit requirements for 
construction, modification, and operation, approved by EPA on July 28, 
2004 (69 FR 44965); Chapter 6, Section 4, Prevention of significant 
deterioration, approved by EPA on July 28, 2004 (69 FR 44965).
    b. EPA Analysis: Wyoming's SIP meets the requirements of CAA 
section 110(a)(2)(K) for the 1997 ozone NAAQS. In particular, 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 4(b)(iv).) As a result, the SIP provides for such air 
quality modeling as the Administrator has prescribed.
    13. Permitting fees: Section 110(a)(2)(L) requires SIPs to require 
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.
    a. Wyoming's response to this requirement: Wyoming cited the 
following SIP provisions: Regulatory Documents: 1993 WAQSR, Section 21, 
Permit requirements for construction, modification, and operation, 
approved by EPA on 11/29/94 (59 FR 60905); Chapter 6, Section 2, Permit 
requirements for construction, modification and operation, approved by 
EPA on July 28, 2004 (69 FR 44965).
    b. EPA Analysis: Wyoming's approved title V operating permit 
program meets the requirements of CAA section 111(a)(2)(L) for the 1997 
ozone NAAQS. Final approval of the title V operating permit program 
became effective April 23, 1999 (64 FR 8523, Feb. 22, 1990). Interim 
approval of Wyoming's title V operating permit program became effective 
February 21, 1995 (60 FR 4563, Jan. 19, 1995). As discussed in a 
previous direct final rule (which received comments) for interim 
approval of the title V program (59 FR 48802, Sept. 23, 1994), the 
State demonstrated that the fees collected were sufficient to 
administer the program.
    14. 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.
    a. Wyoming's response to this requirement: Wyoming cited the 
following SIP provisions: Non-regulatory document: Intergovernmental 
Cooperation Document, approved by EPA on May 31, 1972 (37 FR 10842).
    b. EPA Analysis: Wyoming's submittal meets the requirements of CAA 
Section 110(a)(2)(M) for the 1997 ozone NAAQS.

V. What action is EPA taking?

    In this action, EPA is proposing to approve the following 
infrastructure elements for the 1997 ozone NAAQS: (A), (B), (C) with 
regards to the requirement to have a minor NSR program, (D)(ii), (E), 
(F), (G), (H), (J) with regards to the requirements related to sections 
121 and 127 of the Act, (K), (L), and (M).
    In this action, EPA also proposes approval of the State's May 11, 
2011 submission, updating the Wyoming PSD program to, among other 
things, regulate NOX as a precursor to ozone. Contingent on 
final approval of these updates, EPA is proposing to approve portions 
of infrastructure elements (C) and (J) for the 1997 ozone NAAQS with 
regards to the requirement that the State's SIP-approved PSD program 
properly regulate ozone precursors.
    In this action, EPA is proposing to disapprove the following 
infrastructure elements for the 1997 ozone NAAQS:
    (C) and (J) with regards to the requirement that the State's PSD 
program regulate GHG-emitting sources in accordance with the Tailoring 
Rule.
    In this action, EPA is taking no action on infrastructure elements 
(D)(i), (I), and (J) specifically in regard to visibility, for the 1997 
ozone NAAQS.

VI. Statutory and Executive Order Reviews

    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)).

[[Page 29686]]

Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. Accordingly, 
this proposed action merely approves some state law as meeting Federal 
requirements and disapproves other state law because it does not meet 
Federal requirements; this proposed action does not impose additional 
requirements beyond those imposed by state law. For that reason, this 
proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999); is not an 
economically significant regulatory action based on health or safety 
risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the 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 rule does not have Tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the State, and EPA notes that it will not impose substantial direct 
costs on Tribal governments or preempt Tribal law.

List of Subjects in 40 CFR Part 52

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

    Dated: May 16, 2011.
James B. Martin,
Regional Administrator, Region 8.
[FR Doc. 2011-12600 Filed 5-20-11; 8:45 am]
BILLING CODE 6560-50-P
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