Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 44265 

money. Other references included in 

Regulations 1.25 and 30.7 will be taken up 

when the Commission considers the 

proposed rulemaking related to investment of 

customer funds. 

[FR Doc. 2011–18777 Filed 7–22–11; 8:45 am] 

BILLING CODE 6351–01–P 

DEPARTMENT OF LABOR 

Occupational Safety and Health 

Administration 

29 CFR Part 1910 

[Docket No. OSHA–S049–2006–0675 

(Formerly Docket No. S–049)] 

RIN 1218–AB50 

General Working Conditions in 

Shipyard Employment; Correction 

AGENCY: Occupational Safety and Health 

Administration (OSHA), Labor. 

ACTION: Final rule; correction. 

SUMMARY: The Occupational Safety and 

Health Administration is correcting a 

final rule on General Working 

Conditions in Shipyard Employment 

published in the Federal Register of 

May 2, 2011 (76 FR 24576). 

DATES: Effective August 1, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Press inquiries: Frank Meilinger, 

Office of Communications, OSHA, U.S. 

Department of Labor, Room N–3647, 

200 Constitution Avenue, NW., 

Washington, DC 20210; telephone: (202) 

693–1999. 

General and technical information: 

Joseph V. Daddura, Director, Office of 

Maritime, Directorate of Standards and 

Guidance, OSHA, U.S. Department of 

Labor, Room N–3621, 200 Constitution 

Avenue, NW., Washington, DC 20210; 

telephone (202) 693–2222. 

SUPPLEMENTARY INFORMATION: 

In FR Doc. 2011–9567 appearing on 

page 24576 in the Federal Register of 

Monday, May 2, 2011, the following 

corrections are made: 

§ 1910.145 [Corrected] 

■ 1. On page 24698, in the first column, 

in § 1910.145, in paragraph (a)(1), the 

first sentence ‘‘These specifications 

apply to the design, application, and use 

of signs or symbols (as included in 

paragraphs (c) through (e) of this 

section) that indicate and, insofar as 

possible, define specific hazards that 

could harm workers or the public, or 

both, or to property damage’’ is 

corrected to read ‘‘These specifications 

apply to the design, application, and use 

of signs or symbols (as included in 

paragraphs (c) through (e) of this 

section) intended to indicate and, 

insofar as possible, to define specific 

hazards of a nature such that failure to 

designate them may lead to accidental 

injury to workers or the public, or both, 

or to property damage.’’ 

§ 1910.147 [Corrected] 

■ 2. On page 24698, in the second 

column, in § 1910.147, in paragraph 

(a)(1)(i), the first sentence ‘‘This 

standard covers the servicing and 

maintenance of machines and 

equipment in which the energization or 

start up of the machines or equipment, 

or release of stored energy, could harm 

employees’’ is corrected to read ‘‘This 

standard covers the servicing and 

maintenance of machines and 

equipment in which the unexpected 

energization or start up of the machines 

or equipment, or release of stored 

energy could cause injury to 

employees.’’ 

Signed at Washington, DC, on July 19, 

2011. 

David Michaels, 

Assistant Secretary of Labor for Occupational 

Safety and Health. 

[FR Doc. 2011–18601 Filed 7–22–11; 8:45 am] 

BILLING CODE 4510–26–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2010–0303; FRL–9441–5] 

Approval and Disapproval and 

Promulgation of State Implementation 

Plan Revisions; Infrastructure 

Requirements for the 1997 8-Hour 

Ozone National Ambient Air Quality 

Standard; Wyoming 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is partially approving 

and partially disapproving 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, dated December 7, 2007 

and December 10, 2009, that its SIP met 

these requirements for the 1997 ozone 

NAAQS. The December 7, 2007 

certification was determined to be 

complete on March 27, 2008 (73 FR 

16205). In addition, EPA is approving a 

May 11, 2011 SIP submittal from the 

State that revises the State’s Prevention 

of Significant Deterioration (PSD) 

program. 

DATES: Effective Date: This final rule is 

effective August 24, 2011. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R08–OAR–2010–0303. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

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. Background 

II. Comments 

III. Final Action 

IV. Statutory and Executive Order Reviews 


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44266 Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 

1Memorandum 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). 

2See the NPR (76 FR 29680) for further 

explanation regarding the omission of elements 

110(a)(2)(D)(i) and 110(a)(2)(I) from the proposal. 

3See, Comments of Midwest Environmental 

Defense Center, dated May 31, 2011. Docket # EPA– 

R05–OAR–2007–1179 (adverse comments on 

proposals for three states in Region 5). EPA notes 

that these public comments on another proposal are 

not relevant to this rulemaking and do not have to 

be directly addressed in this rulemaking. EPA will 

respond to these comments in the appropriate 

rulemaking action to which they apply. 

I. 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 

a state develops and submits its 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 a 

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

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 

(‘‘Infrastructure SIP’’) to meet these 

requirements. 

On May 23, 2011, EPA published a 

notice of proposed rulemaking (NPR) for 

the State of Wyoming (76 FR 29680) to 

act on the State’s Infrastructure SIP for 

the 1997 ozone NAAQS. Specifically, in 

the NPR EPA proposed approval of 

Wyoming’s SIP as meeting the 

requirements of section 110(a)(2) 

elements (A), (B), (D)(ii), (E), (F), (G), 

(H), (K), (L) and (M) with respect to the 

1997 ozone NAAQS. EPA also proposed 

approval of revisions to Wyoming Air 

Quality Standards and Regulations 

(WAQSR) Chapter 6, Section 4 (PSD) 

from Wyoming’s May 11, 2011 

submittal, specifically revisions which 

meet the requirements the phase 2 

implementation rule for the 1997 ozone 

NAAQS (72 FR 71612, November 20, 

2005), 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). EPA 

did not propose action on sections 

110(a)(2)(D)(i), (I), and the visibility 

protection requirement of section 

110(a)(2)(J).2 EPA proposed to 

disapprove 110(a)(2)(C) and (J) on the 

basis that Wyoming’s SIP-approved PSD 

program does not properly regulate 

greenhouse gas (GHG) emissions. 

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 had not taken 

steps to remedy the inadequacy, EPA 

proposed to disapprove infrastructure 

elements 110(a)(2)(C) and (J) in the NPR 

as each requires the SIP to contain a 

PSD program that meets the 

requirements of part C of title I of the 

Act. 

Scope of Infrastructure SIPs 

EPA is currently acting upon SIPs that 

address the infrastructure requirements 

of CAA section 110(a)(1) and (2) for 

ozone and PM2.5 NAAQS for various 

states across the country. Commenters 

on EPA’s recent proposals for some 

states raised concerns about EPA 

statements that it was not addressing 

certain substantive issues in the context 

of acting on the infrastructure SIP 

submissions.3 The commenters 

specifically raised concerns involving 

provisions in existing SIPs and with 

EPA’s statements that it would address 

two issues separately and not as part of 

actions on the infrastructure SIP 

submissions: (i) existing provisions 

related to excess emissions during 

periods of start-up, shutdown, or 

malfunction at sources, that may be 

contrary to the CAA and EPA’s policies 

addressing such excess emissions 

(‘‘SSM’’); and (ii) existing provisions 

related to ‘‘director’s variance’’ or 

‘‘director’s discretion’’ that purport to 

permit revisions to SIP approved 

emissions limits with limited public 

process or without requiring further 

approval by EPA, that may be contrary 

to the CAA (‘‘director’s discretion’’). 

EPA notes that there are two other 

substantive issues for which EPA 

likewise stated that it would address the 

issues separately: (i) Existing provisions 

for minor source new source review 

programs that may be inconsistent with 

the requirements of the CAA and EPA’s 

regulations that pertain to such 

programs (‘‘minor source new source 

review (NSR)’’); and (ii) existing 

provisions for PSD programs that may 

be inconsistent with current 

requirements of EPA’s ‘‘Final NSR 

Improvement Rule,’’ 67 Fed. Reg. 80,186 

(December 31, 2002), as amended by 72 

FR 32,526 (June 13, 2007) (‘‘NSR 

Reform’’). In light of the comments, EPA 

now believes that its statements in 

various proposed actions on 

infrastructure SIPs with respect to these 

four individual issues should be 

explained in greater depth with respect 

to these issues. 

EPA intended the statements in the 

proposals concerning these four issues 

merely to be informational, and to 

provide general notice of the potential 

existence of provisions within the 

existing SIPs of some states that might 


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Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 44267 

4For example, section 110(a)(2)(E) 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 substantive program to 

address certain sources as required by part C of the 

CAA; section 110(a)(2)(G) provides that states must 

have both legal authority to address emergencies 

and substantive contingency plans in the event of 

such an emergency. 

5For example, section 110(a)(2)(D)(i) requires 

EPA to be sure that each SIP contains adequate 

provisions to prevent significant contribution to 

nonattainment of the NAAQS in other states. This 

provision contains numerous terms that require 

substantial rulemaking by EPA in order to 

determine such basic points as what constitutes 

significant contribution. See, e.g., ‘‘Rule To Reduce 

Interstate Transport of Fine Particulate Matter and 

Ozone (Clean Air Interstate Rule); Revisions to Acid 

Rain Program; Revisions to the NOX SIP Call; Final 

Rule,’’ 70 FR 25162 (May 12, 2005) (defining, 

among other things, the phrase ‘‘contribute 

significantly to nonattainment’’). 

6See, e.g., Id., 70 FR 25,162, at 63–65 (May 12, 

2005) (explaining relationship between timing 

requirement of section 110(a)(2)(D) versus section 

110(a)(2)(I)). 

7EPA issued separate guidance to states with 

respect to SIP submissions to meet section 

110(a)(2)(D)(i) for the 1997 ozone and 1997 PM2.5

NAAQS. See, ‘‘Guidance for State Implementation 

Plan (SIP) Submissions to Meet Current 

Outstanding Obligations Under Section 

110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5

National Ambient Air Quality Standards,’’ from 

William T. Harnett, Director, Air Quality Policy 

Division OAQPS, to Regional Air Division Director, 

Regions I–X, dated August 15, 2006. 

require future corrective action. EPA did 

not want states, regulated entities, or 

members of the public to be under the 

misconception that the Agency’s 

approval of the infrastructure SIP 

submission of a given state should be 

interpreted as a reapproval of certain 

types of provisions that might exist 

buried in the larger existing SIP for such 

state. Thus, for example, EPA explicitly 

noted that the Agency believes that 

some states may have existing SIP 

approved SSM provisions that are 

contrary to the CAA and EPA policy, 

but that ‘‘in this rulemaking, EPA is not 

proposing to approve or disapprove any 

existing state provisions with regard to 

excess emissions during SSM of 

operations at facilities.’’ EPA further 

explained, for informational purposes, 

that ‘‘EPA plans to address such State 

regulations in the future.’’ EPA made 

similar statements, for similar reasons, 

with respect to the director’s discretion, 

minor source NSR, and NSR Reform 

issues. EPA’s objective was to make 

clear that approval of an infrastructure 

SIP for these ozone and PM2.5 NAAQS 

should not be construed as explicit or 

implicit reapproval of any existing 

provisions that relate to these four 

substantive issues. 

Unfortunately, the commenters and 

others evidently interpreted these 

statements to mean that EPA considered 

action upon the SSM provisions and the 

other three substantive issues to be 

integral parts of acting on an 

infrastructure SIP submission, and 

therefore that EPA was merely 

postponing taking final action on the 

issue in the context of the infrastructure 

SIPs. This was not EPA’s intention. To 

the contrary, EPA only meant to convey 

its awareness of the potential for certain 

types of deficiencies in existing SIPs, 

and to prevent any misunderstanding 

that it was reapproving any such 

existing provisions. EPA’s intention was 

to convey its position that the statute 

does not require that infrastructure SIPs 

address these specific substantive issues 

in existing SIPs and that these issues 

may be dealt with separately, outside 

the context of acting on the 

infrastructure SIP submission of a state. 

To be clear, EPA did not mean to imply 

that it was not taking a full final agency 

action on the infrastructure SIP 

submission with respect to any 

substantive issue that EPA considers to 

be a required part of acting on such 

submissions under section 110(k) or 

under section 110(c). Given the 

confusion evidently resulting from 

EPA’s statements, however, we want to 

explain more fully the Agency’s reasons 

for concluding that these four potential 

substantive issues in existing SIPs may 

be addressed separately. 

The requirement for the SIP 

submissions at issue arises out of CAA 

section 110(a)(1). That provision 

requires that states must make a SIP 

submission ‘‘within 3 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 

that these SIPS are to provide for the 

‘‘implementation, maintenance, and 

enforcement’’ of such NAAQS. Section 

110(a)(2) includes a list of specific 

elements that ‘‘[e]ach such plan’’ 

submission must meet. EPA has 

historically referred to these particular 

submissions that states must make after 

the promulgation of a new or revised 

NAAQS as ‘‘infrastructure SIPs.’’ This 

specific term does not appear in the 

statute, but EPA uses the term to 

distinguish this particular type of SIP 

submission designed to address basic 

structural requirements of a SIP from 

other types of SIP submissions designed 

to address other different requirements, 

such as ‘‘nonattainment SIP’’ 

submissions required to address the 

nonattainment planning requirements of 

part D, ‘‘regional haze SIP’’ submissions 

required to address the visibility 

protection requirements of CAA section 

169A, NSR permitting program 

submissions required to address the 

requirements of part D, and a host of 

other specific types of SIP submissions 

that address other specific matters. 

Although section 110(a)(1) addresses 

the timing and general requirements for 

these infrastructure SIPs, and section 

110(a)(2) provides more details 

concerning the required contents of 

these infrastructure SIPs, EPA believes 

that many of the specific statutory 

provisions are facially ambiguous. In 

particular, 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 provisions, and 

some of which pertain to requirements 

for both authority and substantive 

provisions.4 Some of the elements of 

section 110(a)(2) are relatively 

straightforward, but others clearly 

require interpretation by EPA through 

rulemaking, or recommendations 

through guidance, in order to give 

specific meaning for a particular 

NAAQS.5

Notwithstanding that section 110(a)(2) 

states that ‘‘each’’ SIP submission must 

meet the list of requirements therein, 

EPA has long noted that this literal 

reading of the statute is internally 

inconsistent, insofar as section 

110(a)(2)(I) pertains to nonattainment 

SIP requirements that could not be met 

on the schedule provided for these SIP 

submissions in section 110(a)(1).6 This 

illustrates that EPA must determine 

which provisions of section 110(a)(2) 

may be applicable for a given 

infrastructure SIP submission. 

Similarly, EPA has previously decided 

that it could take action on different 

parts of the larger, general 

‘‘infrastructure SIP’’ for a given NAAQS 

without concurrent action on all 

subsections, such as section 

110(a)(2)(D)(i), because the Agency 

bifurcated the action on these latter 

‘‘interstate transport’’ provisions within 

section 110(a)(2) and worked with states 

to address each of the four prongs of 

section 110(a)(2)(D)(i) with substantive 

administrative actions proceeding on 

different tracks with different 

schedules.7 This illustrates that EPA 

may conclude that subdividing the 

applicable requirements of section 

110(a)(2) into separate SIP actions may 

sometimes be appropriate for a given 

NAAQS where a specific substantive 

action is necessitated, beyond a mere 

submission addressing basic structural 

aspects of the SIP. Finally, EPA notes 

that not every element of section 

110(a)(2) would be relevant, or as 

relevant, or relevant in the same way, 

for each new or revised NAAQS and the 


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44268 Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 

8For example, implementation of the 1997 PM2.5

NAAQS required the deployment of a system of 

new monitors to measure ambient levels of that new 

indicator species for the new NAAQS. 

9See, ‘‘Guidance on SIP Elements Required 

Under Section 110(a)(1) and (2) for the 1997 8-hour 

Ozone and PM2.5 National Ambient Air Quality 

Standards,’’ from William T. Harnett, Director Air 

Quality Policy Division, to Air Division Directors, 

Regions I–X, dated October 2, 2007 (the ‘‘2007 

Guidance’’). EPA issued comparable guidance for 

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),’’ from 

William T, Harnett, Director Air Quality Policy 

Division, to Regional Air Division Directors, 

Regions I–X, dated September 25, 2009 (the ‘‘2009 

Guidance’’). 

10 Id., at page 2. 

11 Id., at attachment A, page 1. 

12 Id., at page 4. In retrospect, the concerns raised 

by commenters with respect to EPA’s approach to 

some substantive issues indicates that the statute is 

not so ‘‘self explanatory,’’ and indeed is sufficiently 

ambiguous that EPA needs to interpret it in order 

to explain why these substantive issues do not need 

to be addressed in the context of infrastructure SIPs 

and may be addressed at other times and by other 

means. 

attendant infrastructure SIP submission 

for that NAAQS. For example, the 

monitoring requirements that might be 

necessary for purposes of section 

110(a)(2)(B) for one NAAQS could be 

very different than what might be 

necessary for a different pollutant. Thus, 

the content of an infrastructure SIP 

submission to meet this element from a 

state might be very different for an 

entirely new NAAQS, versus a minor 

revision to an existing NAAQS.8

Similarly, EPA notes that other types 

of SIP submissions required under the 

statute also must meet the requirements 

of section 110(a)(2), and this also 

demonstrates the need to identify the 

applicable elements for other SIP 

submissions. For example, 

nonattainment SIPs required by part D 

likewise have to meet the relevant 

subsections of section 110(a)(2) such as 

section 110(a)(2)(A) or (E). By contrast, 

it is clear that nonattainment SIPs 

would not need to meet the portion of 

section 110(a)(2)(C) that pertains to part 

C, i.e., the PSD requirement applicable 

in attainment areas. Nonattainment SIPs 

required by part D also would not need 

to address the requirements of section 

110(a)(2)(G) with respect to emergency 

episodes, as such requirements would 

not be limited to nonattainment areas. 

As this example illustrates, each type of 

SIP submission may implicate some 

subsections of section 110(a)(2) and not 

others. 

Given the potential for ambiguity of 

the statutory language of section 

110(a)(1) and (2), EPA believes that it is 

appropriate for EPA to interpret that 

language in the context of acting on the 

infrastructure SIPs for a given NAAQS. 

Because of the inherent ambiguity of the 

list of requirements in section 110(a)(2), 

EPA has adopted an approach in which 

it reviews infrastructure SIPs against 

this list of elements ‘‘as applicable.’’ In 

other words, EPA assumes that Congress 

could not have intended that each and 

every SIP submission, regardless of the 

purpose of the submission or the 

NAAQS in question, would meet each 

of the requirements, or meet each of 

them in the same way. EPA elected to 

use guidance to make recommendations 

for infrastructure SIPs for these NAAQS. 

On October 2, 2007, EPA issued 

guidance making recommendations for 

the infrastructure SIP submissions for 

both the 1997 8-hour ozone NAAQS and 

the 1997 PM2.5 NAAQS.9 Within this 

guidance document, EPA described the 

duty of states to make these submissions 

to meet what the Agency characterized 

as the ‘‘infrastructure’’ elements for 

SIPs, which it further described as the 

‘‘basic SIP requirements, including 

emissions inventories, monitoring, and 

modeling to assure attainment and 

maintenance of the standards.’’ 10 As 

further identification of these basic 

structural SIP requirements, 

‘‘attachment A’’ to the guidance 

document included a short description 

of the various elements of section 

110(a)(2) and additional information 

about the types of issues that EPA 

considered germane in the context of 

such infrastructure SIPs. EPA 

emphasized that the description of the 

basic requirements listed on attachment 

A was not intended ‘‘to constitute an 

interpretation of ’’ the requirements, and 

was merely a ‘‘brief description of the 

required elements.’’ 11 EPA also stated 

its belief that with one exception, these 

requirements were ‘‘relatively self 

explanatory, and past experience with 

SIPs for other NAAQS should enable 

States to meet these requirements with 

assistance from EPA Regions.’’ 12 For the 

one exception to that general 

assumption, however, i.e., how states 

should proceed with respect to the 

requirements of section 110(a)(2)(G) for 

the 1997 PM2.5 NAAQS, EPA gave much 

more specific recommendations. But for 

other infrastructure SIP submittals, and 

for certain elements of the submittals for 

the 1997 PM2.5 NAAQS, EPA assumed 

that each state would work with its 

corresponding EPA regional office to 

refine the scope of a state’s submittal 

based on an assessment of how the 

requirements of section 110(a)(2) should 

reasonably apply to the basic structure 

of the SIP for the NAAQS in question. 

Significantly, the 2007 Guidance did 

not explicitly refer to the SSM, 

director’s discretion, minor source NSR, 

or NSR Reform issues as among specific 

substantive issues EPA expected states 

to address in the context of the 

infrastructure SIPs, nor did EPA give 

any more specific recommendations 

with respect to how states might address 

such issues even if they elected to do so. 

The SSM and director’s discretion 

issues implicate section 110(a)(2)(A), 

and the minor source NSR and NSR 

Reform issues implicate section 

110(a)(2)(C). In the 2007 Guidance, 

however, EPA did not indicate to states 

that it intended to interpret these 

provisions as requiring a substantive 

submission to address these specific 

issues in the context of the 

infrastructure SIPs for these NAAQS. 

Instead, EPA’s 2007 Guidance merely 

indicated its belief that the states should 

make submissions in which they 

established that they have the basic SIP 

structure necessary to implement, 

maintain, and enforce the NAAQS. EPA 

believes that states can establish that 

they have the basic SIP structure, 

notwithstanding that there may be 

potential deficiencies within the 

existing SIP. Thus, EPA’s proposals 

mentioned these issues not because the 

Agency considers them issues that must 

be addressed in the context of an 

infrastructure SIP as required by section 

110(a)(1) and (2), but rather because 

EPA wanted to be clear that it considers 

these potential existing SIP problems as 

separate from the pending infrastructure 

SIP actions. 

EPA believes that this approach to the 

infrastructure SIP requirement is 

reasonable, because it would not be 

feasible to read section 110(a)(1) and (2) 

to require a top to bottom, stem to stern, 

review of each and every provision of an 

existing SIP merely for purposes of 

assuring that the state in question has 

the basic structural elements for a 

functioning SIP for a new or revised 

NAAQS. Because SIPs have grown by 

accretion over the decades as statutory 

and regulatory requirements under the 

CAA have evolved, they may include 

some outmoded provisions and 

historical artifacts that, while not fully 

up to date, nevertheless may not pose a 

significant problem for the purposes of 

‘‘implementation, maintenance, and 

enforcement’’ of a new or revised 

NAAQS when EPA considers the overall 

effectiveness of the SIP. To the contrary, 

EPA believes that a better approach is 

for EPA to determine which specific SIP 

elements from section 110(a)(2) are 

applicable to an infrastructure SIP for a 

given NAAQS, and to focus attention on 

those elements that are most likely to 

need a specific SIP revision in light of 

the new or revised NAAQS. Thus, for 


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13EPA has recently issued a SIP call to rectify a 

specific SIP deficiency related to the SSM issue. 

See, ‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revision,’’ 74 FR 21,639 

(April 18, 2011). 

14EPA has recently utilized this authority to 

correct errors in past actions on SIP submissions 

related to PSD programs. See, ‘‘Limitation of 

Approval of Prevention of Significant Deterioration 

Provisions Concerning Greenhouse Gas EmittingSources in State Implementation Plans; Final Rule,’’ 

75 FR 82,536 (Dec. 30, 2010). EPA has previously 

used its authority under CAA 110(k)(6) to remove 

numerous other SIP provisions that the Agency 

determined it had approved in error. See, e.g., 61 

FR 38,664 (July 25, 1996) and 62 FR 34,641 (June 

27, 1997) (corrections to American Samoa, Arizona, 

California, Hawaii, and Nevada SIPs); 69 FR 67,062 

(November 16, 2004) (corrections to California SIP); 

and 74 FR 57,051 (November 3, 2009) (corrections 

to Arizona and Nevada SIPs). 

15EPA has recently disapproved a SIP submission 

from Colorado on the grounds that it would have 

included a director’s discretion provision 

inconsistent with CAA requirements, including 

section 110(a)(2)(A). See, e.g., 75 FR 42,342 at 

42,344 (July 21, 2010) (proposed disapproval of 

director’s discretion provisions); 76 FR 4,540 (Jan. 

26, 2011) (final disapproval of such provisions). 

16See, ‘‘Ambient Ozone Monitoring Regulations: 

Revisions to Network Design Requirements,’’ 74 FR 

34525, at 34527–28 (July 16, 2009). 

example, EPA’s 2007 Guidance 

specifically directed states to focus on 

the requirements of section 110(a)(2)(G) 

for the 1997 PM2.5 NAAQS because of 

the absence of underlying EPA 

regulations for emergency episodes for 

this NAAQS and an anticipated absence 

of relevant provisions in existing SIPs. 

Finally, EPA believes that its 

approach is a reasonable reading of 

section 110(a)(1) and (2) because the 

statute provides other avenues and 

mechanisms to address specific 

substantive deficiencies in existing SIPs. 

These other statutory tools allow the 

Agency to take appropriate tailored 

action, depending upon the nature and 

severity of the alleged SIP deficiency. 

Section 110(k)(5) authorizes EPA to 

issue a ‘‘SIP call’’ whenever the Agency 

determines that a SIP is substantially 

inadequate to attain or maintain the 

NAAQS, to mitigate interstate transport, 

or otherwise to comply with the CAA.13

Section 110(k)(6) authorizes EPA to 

correct errors in past actions, such as 

past approvals of SIP submissions.14

Significantly, EPA’s determination that 

an action on the infrastructure SIP is not 

the appropriate time and place to 

address all potential existing SIP 

problems does not preclude the 

Agency’s subsequent reliance on 

provisions in section 110(a)(2) as part of 

the basis for action at a later time. For 

example, although it may not be 

appropriate to require a state to 

eliminate all existing inappropriate 

director’s discretion provisions in the 

course of acting on the infrastructure 

SIP, EPA believes that section 

110(a)(2)(A) may be among the statutory 

bases that the Agency cites in the course 

of addressing the issue in a subsequent 

action.15

II. Response to Comments 

EPA received one letter on June 22, 

2011 containing comments from 

WildEarth Guardians (WEG), an 

environmental organization. The 

significant comments made in WEG’s 

June 22, 2011 letter and EPA’s responses 

to those comments are given below. 

Comment No. 1: The commenter 

expressed concern that the Wyoming 

SIP is failing to maintain the 1997 8- 

hour ozone NAAQS in Sublette County. 

As evidence, the commenter cited data 

from three monitors in Sublette County. 

The commenter argued that the data 

establish the Wyoming SIP is failing to 

meet the requirements of CAA section 

110(a)(1) and that EPA cannot approve 

the Wyoming infrastructure SIP for the 

1997 ozone NAAQS as a result. 

EPA Response: EPA disagrees with 

the commenter’s view that the monitor 

data presented by the commenter has a 

bearing on EPA’s action on the State’s 

infrastructure SIP submission. First, 

there are currently no nonattainment 

areas designated in Wyoming for the 

1997 8-hour ozone NAAQS. Thus, the 

State is not currently under an 

obligation to submit a SIP to meet the 

requirements of Part D of title I. More 

importantly, as explained in the NPR, 

Part D requirements are outside the 

scope of this action. EPA therefore 

disagrees with the assertion that, as a 

result of the cited monitoring data, EPA 

cannot approve the Wyoming 

infrastructure SIP for the 1997 ozone 

NAAQS. 

Comment No. 2: The commenter 

asserted that the Wyoming SIP does not 

meet the monitoring requirements of 40 

CFR part 58 for the 1997 8-hour ozone 

NAAQS, and that EPA should therefore 

disapprove the Wyoming infrastructure 

SIP for element 110(a)(2)(B). The 

commenter argued that because the 

cities of Casper and Cheyenne each have 

an urbanized population greater than 

50,000, both areas are required to have 

ozone monitors under 40 CFR part 58, 

Appendix D. The commenter concluded 

that, as neither city contains an ozone 

monitor, Wyoming’s SIP does not fulfill 

the requirements of 110(a)(2)(B). The 

commenter further argued that a 

discussion of monitoring in Pinedale, 

Casper, Rock Springs, and Gillette in a 

recent Wyoming Monitoring Network 

Plan demonstrates a need for ‘‘a more 

expansive network’’ of ozone monitors 

in the State. 

EPA Response: EPA disagrees with 

this commenter’s conclusion with 

respect to whether the monitoring 

network required by the Wyoming SIP 

meets the current requirements. Table 

D–2 in Appendix D to 40 CFR part 58 

sets the minimum number of required 

State and Local Air Monitoring Stations 

(SLAMS) for ozone. Footnote 4 to the 

table explicitly indicates that minimum 

monitoring requirements in the last 

column should apply in the absence of 

a design value. While both Casper and 

Cheyenne have populations greater than 

50,000 (but less than 350,000), they lack 

ozone design values at this time. 

Therefore, the minimum number of 

required SLAMS monitors for ozone for 

Casper and Cheyenne is zero, and the 

current monitoring network, with 

respect to those two cities, meets the 

current requirements of 40 CFR part 58, 

Appendix D for ozone. The 2010 

network assessment cited by the 

commenter and the 2011 network plan 

linked to by the commenter do not 

provide any information to the contrary. 

EPA therefore disagrees with the 

commenter’s conclusion that the State’s 

infrastructure SIP is not approvable at 

this time. 

EPA notes, however, that it has 

proposed revisions to the current 

monitoring requirements for ozone. On 

July 16, 2009, EPA proposed to change 

the monitoring requirements, in part to 

insure that smaller metropolitan areas 

with populations between 50,000 and 

350,000 that currently do not have 

ozone monitors will get them, in order 

to assure the health benefits of the 

NAAQS in these areas.16 If EPA 

finalizes the proposed revisions to the 

monitoring requirements, this would 

help to address the concerns of the 

commenter. 

Comment No. 3: The commenter 

expressed concern that monitoring is 

only required from May to September, 

whereas areas such as Sublette County 

have maximum ozone concentrations in 

the winter months. The commenter 

argued that EPA must assure the 

Wyoming SIP requires monitoring 

during the wintertime. According to the 

commenter, the failure to monitor in the 

winter months would be grounds for 

disapproval of the infrastructure SIP 

under section 110(a)(2)(B). 

EPA Response: EPA is concerned with 

the wintertime ozone issues in western 

states. However, with respect to the 

season during which monitoring is 

currently required, the required ozone 

monitoring seasons are provided in 40 

CFR part 58, Appendix D, which 

currently specifies monitoring from May 

through September. The proposed 

revision to the ozone monitoring 


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44270 Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 

requirements discussed in the response 

to comment 2 above would also revise 

the ozone monitoring season for 

Wyoming (74 FR at 34538). If EPA 

finalizes the proposed revision to the 

ozone monitoring season for Wyoming, 

the monitoring season will be extended 

and EPA anticipates that this would 

help to address the underlying concern 

of the commenter. At this point, 

however, Wyoming complies with the 

existing monitoring season requirements 

of Appendix D. Thus, the comment 

gives no basis for EPA to change its 

proposed approval of the Wyoming 

infrastructure SIP for element 

110(a)(2)(B) for the 1997 8-hour ozone 

NAAQS. 

Comment No. 4: The commenter 

expressed concern that Wyoming’s title 

V program does not increase permit fees 

each year in accordance with the 

Consumer Price Index as required by 

title V of the CAA, citing 42 U.S.C. 

7661a(b)(3)(B)(v) and 40 CFR 

70.9(b)(2)(iv). The commenter argues 

that this creates an issue under section 

110(a)(2)(L) that precludes approval of 

the State’s infrastructure SIP. 

EPA Response: EPA disagrees with 

this comment. As stated in the text of 

the section, the fees specified in 

110(a)(2)(L) are no longer applicable to 

title V operating permit programs after 

approval of such programs. As noted in 

the NPR, final approval of the title V 

operating permit program became 

effective April 23, 1999 (64 FR 8523, 

Feb. 22, 1990). Therefore, EPA 

concludes that the Wyoming 

infrastructure SIP for the 1997 8-hour 

ozone NAAQS meets the requirements 

of section 110(a)(2)(L) with respect to 

the title V program. 

III. Final Action 

In this action, EPA is approving the 

following section 110(a)(2) 

infrastructure elements for Wyoming for 

the 1997 ozone NAAQS: (A), (B), (D)(ii), 

(E), (F), (G), (H), (K), (L), and (M). EPA 

is also approving Wyoming’s May 11, 

2011 SIP submittal that revises the 

State’s PSD program. 

In this action, EPA is disapproving 

section 110(a)(2)(C) and (J) for the 1997 

ozone NAAQS. 

IV. 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)). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely approves some state law as 

meeting Federal requirements and 

disapproves other state law because it 

does not meet Federal requirements; 

this action does not impose additional 

requirements beyond those imposed by 

state law. For that reason, this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the 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. 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by September 23, 

2011. Filing a petition for 

reconsideration by the Administrator of 

this final rule does not affect the finality 

of this action for the purposes of judicial 

review nor does it extend the time 

within which a petition for judicial 

review may be filed, and shall not 

postpone the effectiveness of such rule 

or action. This action may not be 

challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: June 30, 2011. 

James B. Martin, 

Regional Administrator, Region 8. 

40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for Part 52 

continues to read as follows: 

Authority: 2 U.S.C. 7401 et seq. 

Subpart ZZ—Wyoming 

■ 2. Section 52.2620 is amended by: 

■ a. In paragraph (c)(1), revising the 

entry under Chapter 6 for ‘‘Section 4’’. 

■ b. In paragraph (e), add an entry for 

‘‘XIX’’, Section 110(a)(2) Infrastructure 

Requirements for the 1997 8-Hour 

Ozone NAAQS. 

§ 52.2620 Identification of plan. 

* * * * * 

(c) * * * 

(1) * * * 


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Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 44271 

State Citation Title/subject State adopted and 

effective date 

EPA approval date and 

citation1 Explanations 

* * * * * * * 

Chapter 6 

* * * * * * * 

Section 4 ............................ Prevention of Significant 

Deterioration.

7/8/10 and 9/7/10 .............. 6/30/11, 7/25/11 [Insert 

page number where the 

document begins].

* * * * * * * 

1 In order to determine the EPA effective date for a specific provision that is listed in this table, consult the Federal Register cited in this column for that particular provision. 

* * * * * (e) * * * 

Name of nonregulatory SP 

provision 

Applicable geographic or 

non-attainment area 

State submittal 

date/adopted date 

EPA approval date and 

citation 3 Explanation 

* * * * * * * 

XIX. Section 110(a)(2) Infrastructure Requirements for the 1997 8- 

hour Ozone NAAQS.

Statewide .......................... 12/7/2007 and 12/10/2007 6/30/11, 7/25/11 [Insert 

page number where the 

document begins].

3 In order to determine the EPA effective date for a specific provision that is listed in this table, consult the FEDERAL REGISTER cited in this column for that particular provision. 

[FR Doc. 2011–18423 Filed 7–22–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2011–0426; FRL–9442–7] 

Approval and Promulgation of 

Implementation Plans; Texas; 

Revisions to Permits by Rule and 

Regulations for Control of Air Pollution 

by Permits for New Construction or 

Modification 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: EPA is taking a direct final 

action to approve portions of three 

revisions to the Texas State 

Implementation Plan (SIP) submitted by 

the State of Texas on August 31, 1993, 

July 22, 1998, and October 5, 2010. 

These revisions amend existing sections 

and create new sections in Title 30 of 

the Texas Administrative Code (TAC), 

Chapter 116—Control of Air Pollution 

by Permits for New Construction or 

Modification. The August 31, 1993, 

revision creates two new sections at 

116.174 and 116.175 for the use of 

emission reductions as offsets in new 

source review permitting. The July 22, 

1998, revision creates new section 

116.116(f) allowing for the use of 

Discrete Emission Reduction Credits 

(DERC) to exceed emission limits in 

permits (permit allowables) and amends 

section 116.174 to update internal 

citations to other Texas regulations. The 

October 5, 2010, revision amends 

section 116.116(f) to update internal 

citations to other Texas regulations. EPA 

has determined that these SIP revisions 

comply with the Clean Air Act and EPA 

regulations and are consistent with EPA 

policies. This action is being taken 

under section 110 and parts C and D of 

the Federal Clean Air Act (the Act or 

CAA). 

DATES: This direct final rule is effective 

on September 23, 2011 without further 

notice, unless EPA receives relevant 

adverse comment by August 24, 2011. If 

EPA receives such comment, EPA will 

publish a timely withdrawal in the 

Federal Register informing the public 

that this rule will not take effect. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R06– 

OAR–2011–0426, by one of the 

following methods: 

(1) http://www.regulations.gov: 

Follow the on-line instructions for 

submitting comments. 

(2) E-mail: Ms. Erica Le Doux at 

ledoux.erica@epa.gov. 

(3) Fax: Ms. Erica Le Doux, Air 

Permits Section (6PD–R), at fax number 

214–665–6762. 

(4) Mail: Ms. Erica Le Doux, Air 

Permits Section (6PD–R), Environmental 

Protection Agency, 1445 Ross Avenue, 

Suite 1200, Dallas, Texas 75202–2733. 

(5) Hand or Courier Delivery: Ms. 

Erica Le Doux, Air Permits Section 

(6PD–R), Environmental Protection 

Agency, 1445 Ross Avenue, Suite 1200, 

Dallas, Texas 75202–2733. Such 

deliveries are accepted only between the 

hours of 8:30 AM and 4:30 PM 

weekdays except for legal holidays. 

Special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R06–OAR–2011– 

0426. 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 

the disclosure of which is restricted by 

statute. Do not submit information 

through http://www.regulations.gov or 

e-mail, if you believe that it is CBI or 

otherwise protected from disclosure. 

The http://www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means that EPA will not know 

your identity or contact information 


rmajette on DSK89S0YB1PROD with RULES