[Federal Register Volume 80, Number 34 (Friday, February 20, 2015)]
[Rules and Regulations]
[Pages 9194-9202]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-03180]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2014-0761; FRL 9922-94-Region 8]


Partial Approval and Partial Disapproval and Promulgation of Air 
Quality Implementation Plans; Wyoming; Revisions to Wyoming Air Quality 
Standards and Regulations; Nonattainment Permitting Requirements and 
Chapter 3, General Emission Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to disapprove a portion of State Implementation Plan (SIP) 
revisions submitted by the State of Wyoming on May 10, 2011. This 
submittal revises the Wyoming Air Quality Standards and Regulations 
(WAQSR) that pertain to the issuance of Wyoming air quality permits for 
major sources in nonattainment areas. Also in this action, EPA is 
approving SIP revisions submitted by the State of Wyoming on February 
13, 2013, and on February 10, 2014. These submittals revise the WAQSR 
with respect to sulfur dioxide (SO<INF>2</INF>) limits and dates of 
incorporation by reference (IBR). This action is being taken under 
section 110 of the Clean Air Act (CAA).

DATES: This final rule is effective March 23, 2015.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R08-OAR-2014-0761. All documents in the docket are listed in 
the www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in 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 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, 8:00 a.m. to 4:00 p.m., excluding federal holidays.

FOR FURTHER INFORMATION CONTACT: Kevin Leone, Air Program, Mailcode 8P-
AR, Environmental Protection Agency, Region 8, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129, (303) 312-6227, or <a href="/cdn-cgi/l/email-protection#7d11181213185316180b14133d180d1c531a120b"><span class="__cf_email__" data-cfemail="80ece5efeee5aeebe5f6e9eec0e5f0e1aee7eff6">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Background
II. What are the changes that EPA is taking final action to approve?
III. What are the changes that EPA is taking final action to 
disapprove?
IV. Response to Comments
V. What action is EPA taking today?
VI. Statutory and Executive Orders Review

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.

[[Page 9195]]

    (ii) The initials BACT mean or refer to Best Available Control 
Technology.
    (iii) The initials CFR mean or refer to Code of Federal 
Regulations.
    (iv) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (v) The initials FIP mean or refer to Federal Implementation Plan.
    (vi) The initials IBR mean or refer to incorporation by reference.
    (vii) The initials IAC mean or refer to the Iowa Administrative 
Code.
    (viii) The initials LAER mean or refer to Lowest Achievable 
Emissions Rate.
    (ix) The initials NAAQS mean or refer to National Ambient Air 
Quality Standards.
    (x) The initials NOX mean or refer to nitrogen oxides.
    (xi) The initials NSR mean or refer to New Source Review.
    (xii) The initials PM10 mean or refer to particulate matter with an 
aerodynamic diameter of less than or equal to 10 micrometers (coarse 
particulate matter).
    (xiii) The initials PSD mean or refer to Prevention of Significant 
Deterioration.
    (xiv) The initials SIP mean or refer to State Implementation Plan.
    (xv) The initials SO2 mean or refer to sulfur dioxide.
    (xvi) The words State or Wyoming mean the State of Wyoming, unless 
the context indicates otherwise.
    (xvii) The initials UGRB mean or refer to the Upper Green River 
Basin.
    (xviii) The initials VOC mean or refer to volatile organic 
compound.
    (xix) The initials WAQSR mean or refer to the Wyoming Air Quality 
Standards and Regulations.
    (xx) The initials WDEQ mean or refer to the Wyoming Department of 
Environmental Quality.

I. Background

    In this final rulemaking, we are taking final action to disapprove 
the addition of Chapter 6, Section 13, Nonattainment permit 
requirements, to the WAQSR submitted by the State of Wyoming on May 10, 
2011. This new section incorporated by reference 40 Code of Federal 
Regulations (CFR) section 51.165 in its entirety, with the exception of 
paragraphs (a) and (a)(1), into Wyoming's Chapter 6 Permitting 
Requirements.
    On March 27, 2008, EPA promulgated a revised National Ambient Air 
Quality Standard (NAAQS) for ozone with an 8-hour concentration limit 
of 0.075 parts per million (``8-Hour Ozone NAAQS''), and effective July 
20, 2012, EPA designated the Upper Green River Basin area of Wyoming as 
``nonattainment'' for the 8-Hour Ozone NAAQS. For nonattainment areas, 
states are required to submit SIP revisions, including a nonattainment 
NSR permitting program for the construction and operation of new or 
modified major stationary sources located in the nonattainment area. On 
May 10, 2011, before the formal designation of the Green River Basin 
Area as nonattainment for the 8-Hour Ozone NAAQS, Wyoming submitted a 
nonattainment new source review (NSR) permitting program SIP revision 
to EPA.
    Our final disapproval will start a two-year clock under CAA section 
110(c)(1) for our obligation to promulgate a federal implementation 
plan (FIP) to correct the deficiency and the 18-month clock for 
sanctions, as required by CAA section 179(a)(2). These deadlines will 
be removed when Wyoming submits and we approve a SIP revision 
addressing the deficiency.
    In this final rulemaking action, we are also taking final action to 
approve revisions submitted by Wyoming on February 13, 2013, and on 
February 10, 2014. These revisions to the WAQSR include portions of 
rulemakings R-20 and R-22(b), respectively, as revisions to Wyoming's 
SIP. Specifically, Wyoming revised Chapter 3, General Emissions 
Standards, Section 4, Emission standards for sulfur oxides and Section 
9, Incorporation by reference in rulemaking R-20; and then again 
revised Section 9, Incorporation by reference in rulemaking R-22(b).

II. What are the changes that EPA is taking final action to approve?

    With respect to Wyoming's February 13, 2013, and February 10, 2014 
submittals, EPA is taking final action to approve revisions to WASQR 
Chapter 3, General Emissions Standards, Section 4, Emission standards 
for sulfur oxides, and Section 9, Incorporation by reference. Section 4 
covers only sulfur oxide emissions from specific sulfuric acid 
production processes. These WAQSR changes and additions are consistent 
with the CAA and EPA regulations.
    In our November 4, 2014 proposed action (79 FR 65362), we proposed 
to approve the following revisions to the WASQR: Chapter 3, General 
Emissions Standards, section 4, Emission standards for sulfur oxides 
(in R-20); then subsequently amended (in R-22(b)), section 9, 
Incorporation by reference.

III. What are the changes that EPA is taking final action to 
disapprove?

    EPA is taking final action to disapprove the portion of Wyoming's 
May 10, 2011 submittal that adds a new section to the permitting 
requirements in WAQSR Chapter 6. The new Chapter 6 Section 13, 
Nonattainment permit requirements, consists of one sentence: ``40 CFR 
part 51.165 is herein incorporated by reference, in its entirety, with 
the exception of paragraph (a) and paragraph (a)(1).''
    As explained in 79 FR 65362, these changes are not consistent with 
CAA and EPA regulations. Specifically:

    1. CAA section 110(a)(2)(C), which requires each state plan to 
include ``a program to provide for . . . the regulation of the 
modification and construction of any stationary source within the 
areas covered by the plan as necessary to assure that the [NAAQS] 
are achieved, including a permit program as required in parts C and 
D of this subchapter.''
    2. CAA section 172(c)(5), which provides that the plan ``shall 
require permits for the construction and operation of new or 
modified major stationary sources anywhere in the nonattainment 
area, in accordance with section [173].''
    3. CAA section 173, which lays out the requirements for 
obtaining a permit that must be included in the state's SIP-approved 
permit program. Because language prefaced by phrases such as ``the 
plan shall provide'' or ``the plan shall require'' does not itself 
impose requirements on sources, the State's proposed plan revision 
does not clearly satisfy the requirements of these statutory 
provisions.
    4. CAA section 110(a)(2)(A), which requires that SIPs contain 
enforceable emissions limitations and other control measures. Under 
section CAA section 110(a)(2), the enforceability requirement in 
section 110(a)(2)(A) applies to all plans submitted by a state.
    5. CAA section 110(i), which (with certain limited exceptions) 
prohibits States from modifying SIP requirements for stationary 
sources except through the SIP revision process.
    6. CAA section 172(c)(7), which requires that nonattainment 
plans--including nonattainment NSR programs required by section 
172(c)(5)--are required to meet the applicable provisions of section 
110(a)(2), including the requirement in section 110(a)(2)(A) for 
enforceable emission limitations and other control measures.
    7. CAA section 110(l), which provides that EPA cannot approve a 
SIP revision that interferes with any applicable requirement of the 
Act. As explained above, the addition of Chapter 6, Section 13 to 
the Wyoming SIP would interfere with section 110(a)(2) and 110(i) of 
the Act.
    8. Nor does the SIP revision comply with the requirements of 40 
CFR 51.165 as the plan fails to impose the regulatory requirements 
on individual sources, as required by the regulatory provisions.

    We provided a detailed explanation of the basis of approval and 
disapproval in our proposed rulemaking (see 79 FR 65362). We invited 
comment on all aspects of our proposal and provided a

[[Page 9196]]

30-day comment period. The comment period ended on December 4, 2014.

IV. Response to Comments

    We received two comment letters during the public comment period. 
One comment letter was submitted by Bruce Pendery of the Wyoming 
Outdoor Council and one was submitted by Todd Parfitt, Director of the 
Wyoming Department of Environmental Quality.

Bruce Pendery of the Wyoming Outdoor Council

    Comment: The comment was in reference to WAQSR Chapter 6 Section 
13, nonattainment NSR permits for major sources locating in 
nonattainment areas. The comment stated that ``. . . the State's 
proposed SIP revision is deficient because while it establishes 
requirements for plans it does not establish unambiguous and 
enforceable emission limits on sources that would be subject to the 
regulation. These shortcomings fail to meet the regulatory requirement 
to impose emission requirements for sources and also does not meet the 
requirements of section 110(a)(2)(A) of the Clean Air Act. In addition, 
the State's submission does not specify the procedures it will use to 
reduce emissions from major sources in nonattainment areas, bringing 
into question the enforceability of offset requirements. This violates 
section 110(i) of the Clean Air Act.''
    Response: For the reasons explained in 79 FR 65362, we agree with 
the commenter that the addition of the sentence ``40 CFR part 51.165 is 
herein incorporated by reference, in its entirety, with the exception 
of paragraph (a) and paragraph (a)(1)'' in Chapter 6 Section 13, 
Nonattainment permit requirements, does not meet the requirements of 
CAA section 110(a)(2)(A) and CAA section 110(i).

Todd Parfitt, Director of the Wyoming Department of Environmental 
Quality

    Comment: EPA's failure to timely approve Wyoming's plan effectively 
transferred new source permitting authority in the Upper Green River 
Basin (UGRB) nonattainment area from Wyoming to Region 8. In the 
absence of EPA-approved provisions, the Wyoming Department of 
Environmental Quality (WDEQ) has remained unable to permit new sources 
in the UGRB area.
    Response: We disagree. First, Wyoming has a SIP-approved minor NSR 
permit program and under that program can issue minor NSR permits 
within the UGRB, so we presume that the comment is intended to refer 
only to new major sources and major modifications locating in the UGRB. 
Second, Wyoming has a SIP-approved Prevention of Significant 
Deterioration (PSD) program and under that program can issue permits in 
the UGRB ozone nonattainment area for new major sources of pollutants 
other than nitrogen oxides (NO<INF>X</INF>) and volatile organic 
compounds (VOCs), as ozone precursors, and modifications that are major 
for pollutants other than NO<INF>X</INF> or VOCs, as ozone precursors, 
so we also presume that the comment is intended to refer only to new 
major sources of NO<INF>X</INF> and VOCs and modifications that are 
major with respect to NO<INF>X</INF> and VOCs in the UGRB nonattainment 
area.
    Given this, EPA Region 8 has not assumed authority to permit new 
major sources of NO<INF>X</INF> and VOCs and modifications that are 
major with respect to NO<INF>X</INF> and VOCs in the UGRB nonattainment 
area. For EPA to have that authority, we would have had to issue a FIP 
under section 110(c)(1) of the CAA, and we have not done so or even 
proposed to do so; in fact, our proposal notice stated that the 
disapproval would start the two-year clock for EPA's obligation to 
promulgate a FIP.
    Under 40 CFR 52.21(k), it is expected that the State will issue 
permits in accordance with Appendix S to 40 CFR part 51 until EPA has 
approved a SIP submittal meeting the requirements of part D of title I 
of the CAA (in particular, a SIP submittal meeting the plan 
requirements that are set out in 40 CFR 51.165 as applicable to ozone 
nonattainment areas). If WDEQ has not been granted sufficient authority 
by the Wyoming legislature to issue permits under Appendix S prior to 
approval of a SIP revision, this would be a serious concern that should 
be addressed by the legislature, and this concern would exist in the 
period after designation regardless of how long it would take EPA to 
approve a nonattainment NSR program into the SIP. However, the comment 
did not provide any information to cause us to think that WDEQ lacks 
such authority. Even if it did, section 110(l) does not have an 
exception that allows EPA to approve a SIP revision that interferes 
with applicable requirements of the Act solely on the grounds that the 
State has been granted insufficient authority by its legislature to act 
in the interim prior to SIP approval.
    Finally, the comment did not identify any owners or operators that 
have been unable to construct a new major source or major modification 
in the UGRB nonattainment area due to WDEQ's alleged lack of authority 
to issue permits. Nor did any owners or operators comment on our 
proposed disapproval. We also note that in order to meet nonattainment 
NSR requirements in the Sheridan coarse particulate matter 
(PM<INF>10</INF>) nonattainment area, Wyoming has had a construction 
ban in place and approved into the SIP for over twenty years (See 
WAQSR, Chapter 6, Section 2(c)(ii)(B)). While the facts and 
circumstances of the UGRB ozone nonattainment area may be different 
than those of the Sheridan PM<INF>10</INF> nonattainment area, the 
comment does not explain why the State has a concern in the UGRB that 
it does not in Sheridan.
    Comment: EPA's disapproval of Wyoming's plan is arbitrary and 
capricious. It is arbitrary and capricious for an agency to respond to 
the same situation in a different way without any rational explanation. 
``Here, the Region 8 Administrator proposes to disapprove Wyoming's 
plan for including language that was already approved, and has been 
proposed to be approved, by the administrator of Regions 7 and 10.''
    The commenter references: Approval and Promulgation of 
Implementation Plans; Idaho, 79 FR 11711 (March 3, 2014) (approving 
portions of Idaho's plan that incorporated 40 CFR 51.165 by reference, 
without excluding any of the language referring to ``the plan''); 
Approval and Promulgation of Implementation Plans; Iowa, 79 FR 27763 
(May 15, 2014) (approving portions of Iowa's SIP revisions that 
incorporate language from 40 CFR 51.165, including the phrase ``plan 
shall provide'' three times and the phrase ``the plan shall require'' 
five times); Approval and Promulgation of Implementation Plans; Alaska 
Nonattainment New Source Review, 79 FR 65366 (November 4, 2014) 
(proposing to approve Alaska's SIP revisions that incorporate portions 
of 40 CFR 51.165 by reference, including the phrase ``plan shall 
provide that'' two times and the phrase ``all plans shall use'' one 
time). The commenter states that the Region 7 Administrator approved 
Iowa's plan as a direct final rule because ``the Agency views [it] as a 
noncontroversial revision amendment.
    The commenter states EPA may not declare that its own regulations, 
when incorporated by states in Region 7 and 10, are approvable for use 
in a SIP, but, when incorporated by a state in Region 8, are ambiguous, 
and therefore, do not contain enforceable emission limitations. The 
commenter concludes that EPA should approve Wyoming's submittal in 
accordance with these previous actions.
    Response: We disagree that Wyoming's submittal is approvable and 
with the commenter's contention that

[[Page 9197]]

disapproval of Wyoming's submittal is inconsistent with EPA's approval 
of other SIP submissions. With respect to approval of the submittal, we 
noted in our proposal that, under section 110(l), EPA cannot approve 
any SIP revision that would interfere with any applicable requirement 
of the CAA. The comment does not dispute this basis for disapproval. We 
also noted in our proposal that certain provisions incorporated by 
Wyoming fail to specify procedures for determining the location of 
offsets and therefore violate section 110(i) of the CAA, because the 
provisions as incorporated would allow Wyoming to define and modify 
those procedures without going through the SIP revision process. The 
comment does not dispute this basis for disapproval, either. 
Furthermore, we noted that the State's incorporation by reference of 
language stating ``the plan may provide'' failed to create an 
enforceable obligation and also created ambiguity as to whether the SIP 
would actually include the provisions, thus violating the requirements 
in 110(a)(2)(A) regarding enforceability and the requirement in 
110(a)(2)(C) to have a nonattainment NSR permit program as specified in 
part D of Title I, specifically sections 172(c)(5) and 173. The comment 
does not dispute the ambiguity of the language stating ``the plan may 
provide.'' Finally, we stated that the violation of sections 110(a)(2) 
(specifically 110(a)(2)(A) and (C)) and 110(i)) would interfere with 
applicable requirements of the Act and therefore we could not approve 
the submittal. The comment does not dispute that 110(a)(2)(A), 
110(a)(2)(C), and 110(i) are applicable requirements and that approval 
of Wyoming's submittal would interfere with those requirements with 
respect to the language regarding the permissible location of offsets 
and the optional provisions prefaced by ``the plan may provide.'' 
Therefore, even if we agreed that our approval of other SIP submittals 
was inconsistent with our disapproval of Wyoming's submittal--which we 
do not--the deficiencies identified above would not allow us to approve 
the Wyoming submittal.
    Second, EPA notes that we take numerous actions every year on SIP 
submittals, each of which by itself can be voluminous and contain many 
technical and legal issues. On occasion, it is possible that EPA may 
have approved portions of SIP submittals that do not meet all the 
requirements of the Act because EPA did not notice that a particular 
issue was implicated by the SIP submittal.\1\ That this unfortunately 
and occasionally happens does not require that EPA must subsequently 
approve all SIP submittals that contain the same issue. To the 
contrary, section 110(l) contains no exception that allows EPA to 
approve a SIP revision that interferes with applicable requirements of 
the CAA merely because in some other action EPA has failed to notice a 
similar issue with a similar SIP revision. Thus, even if the comment 
has characterized the other notices correctly--which EPA does not agree 
it has--, EPA cannot approve Wyoming's SIP revision on the basis of 
those actions. If Wyoming is concerned about EPA's approval of those 
submittals, the State could have commented on those EPA actions or 
petitioned EPA to address any alleged errors in EPA's approval. 
However, it is not a remedy to the alleged inconsistencies to violate 
110(l) and approve a SIP revision that interferes with applicable 
requirements of the Act. In other words, the comment's request that we 
approve the Wyoming submittal in fact requests that EPA take an action 
that is arbitrary and capricious.
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    \1\ With respect to the particular notices cited by the 
commenter, none of them discuss the issues identified in our 
proposal notice.
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    Generally speaking, EPA's requirements for SIPs with respect to 
construction of new and modified sources, including the Part D 
nonattainment NSR permit program, are contained in 40 CFR part 51, 
subpart I, and specifically, in 40 CFR 51.160 through 51.166. The 
requirements for SIPs for nonattainment areas are found in 51.165, but 
this section does not stand alone and is part of a series of sections 
that together, comprise the requirements for approvable SIP provisions 
(e.g., 51.161 spells out the requirements for public notice and 
comment; 51.164 the requirements for stack heights and dispersion 
techniques). The provisions of subpart I are not written in the form of 
an implementable permitting rule which applies to the owner or operator 
of sources who wish to construct or modify, but rather they are 
requirements that a state must meet in order to get its permitting 
rules approved as part of the SIP. In contrast to the requirements for 
nonattainment NSR, there are both SIP PSD requirements in 40 CFR 51.166 
and a federal PSD program in 40 CFR 52.21, the latter being a 
permitting rule with enforceable source obligations that meets the 
requirements of 40 CFR 51.166. For a variety of reasons, many states 
incorporate 40 CFR 52.21 into state rules as the state PSD program. 
However, EPA does not have a similar implementable nonattainment NSR 
permitting rule that can be directly incorporated by reference into 
state rules. As a result, some states have incorporated by reference 
all or parts of 40 CFR 51.165 into state rules for purposes of 
nonattainment NSR, but such states generally integrate the portions of 
51.165 into the states' existing permit program in such a way that 
there is a nonattainment NSR permitting program with enforceable 
provisions. In particular, the permit programs for Alaska, Idaho, and 
Iowa cited by the commenter take this approach, as we detail below.
    In the case of Wyoming's submittal, the submittal fails to 
integrate the incorporation by reference of 51.165 into the State's 
permit program. Under Wyoming's SIP, the general construction permit 
program (i.e. minor NSR and certain procedures and requirements that 
are common to minor NSR and PSD) is set forth in WAQSR, Chapter 6, 
Section 2, and the PSD program is set forth in WAQSR, Chapter 6, 
Section 4. Notably, Wyoming's submittal containing the incorporation by 
reference of 51.165 did not even modify Section 2. Thus, there is no 
indication in Wyoming's permit program in Section 2 that any permit 
should be governed by the federal rules in 40 CFR 51.165. This creates 
several specific issues that we next discuss, but the overarching 
problem is that Wyoming's permit program fails, because it lacks any 
connection to Section 13, to impose nonattainment NSR requirements in 
the UGRB.
    First, WAQSR, Chapter 6, Section 2(c)(v) provides that approval to 
construct cannot be granted until the permit applicant demonstrates 
that the facility will employ best available control technology (BACT). 
This conflicts with the requirement for nonattainment NSR that the 
facility be subject to the lowest achievable emission rate (LAER), 
which is determined by a different and generally speaking more 
stringent standard than BACT. Section 2 does not contain any provision 
stating that LAER instead of BACT should apply in the UGRB as to ozone 
precursor emissions. Thus, the submittal's incorporation by reference 
of 51.165 without corresponding updates to Section 2 fails to impose an 
enforceable obligation to meet the LAER requirement.
    Second, in the case of the Sheridan PM<INF>10</INF> nonattainment 
area, which was designated after the 1990 CAA Amendments, the State met 
nonattainment NSR requirements by imposing a construction ban on new

[[Page 9198]]

major sources of PM<INF>10</INF> and modifications that are major with 
respect to PM<INF>10</INF>. See 59 FR 60902 (Nov. 29, 1994). This is 
imposed in the SIP and integrated into the permit program through 
Section 2(c)(ii)(B), which contains the details of the construction 
ban. In contrast, Section 2 is devoid of any mention that different 
requirements should apply in the UGRB. This creates two conflicts. 
First, there is no enforceable obligation in the permit program to 
satisfy nonattainment NSR requirements in the UGRB. In fact, under 
Section 2 the only requirements that apply in the UGRB are minor NSR or 
PSD, depending on applicability. Second, even if the State's 
incorporation by reference of 51.165 could be understood to create a 
permit program, 51.165 contains generally applicable requirements that 
on their face apply in all nonattainment areas and are not limited to 
the UGRB. Thus there would be two conflicting sets of requirements in 
the Sheridan PM<INF>10</INF> nonattainment area: One a construction ban 
and the other a permission to construct if certain requirements (LAER, 
offsets, etc.) are met.
    Third, Chapter 6, Section 2(k) sets forth certain categories of 
sources that are entirely exempt from the obligation to get approval 
for construction. However, Section 2(k) correctly recognizes that the 
PSD program does not allow for source category-based exemptions and 
therefore states that, notwithstanding these exemptions: ``any facility 
which is a major emitting facility pursuant to the definition in 
Chapter 6, Section 4 [i.e. PSD] shall comply with the requirements of 
both Chapter 6, Sections 2 and 4.'' There is no corresponding provision 
for the incorporation by reference of 51.165 in Section 13. However, 
like PSD, the nonattainment NSR program does not allow for source 
category-based exemptions. Furthermore, Chapter 6, Section 2(k) states 
that any facility which is major under a state's definition must comply 
with the PSD program. There is no mention that certain facilities in 
the UGRB must comply with the provisions of Section 13.
    The nonattainment NSR programs cited by the commenter do not 
contain the same approvability issues in Wyoming's May 10, 2011 SIP 
submittal discussed above. In 79 FR 65366 (November 4, 2014), EPA 
Region 10 proposed to approve the Alaska Part D nonattainment NSR rules 
based on a finding that the Alaska nonattainment NSR rules in 18 AAC 
50, Article 3, Section 311 ``Nonattainment area major stationary source 
permits'' and 18 AAC 50.040(i) (incorporating by reference text from 40 
CFR 51.165) met the requirements of the CAA and EPA's regulations for 
SIP nonattainment NSR rules. 79 FR 65366. EPA Region 10 noted that 18 
AAC 50.311 had previously been approved into the Alaska SIP on August 
14, 2007 (72 FR45378) and had not been revised since that time. EPA 
further explained that the primary changes proposed for approval in the 
SIP revision were updating the effective dates of the federal 
regulations previously adopted by reference in the Alaska SIP for 
purposes of Alaska's Part D nonattainment NSR program.
    Unlike the Wyoming rule, which simply incorporates by reference the 
planning requirements of 40 CFR 51.165 and does not link the federal 
permitting requirements directly to Wyoming's existing state permitting 
rules, Alaska has adopted a complete state permitting rule that 
includes provisions that are specifically applicable to sources 
locating in nonattainment areas, including state provisions specifying 
the permissible location of offsets (see 18 AAC 50.311).\2\ This 
provision makes clear that no source may commence construction of a 
major stationary source, a major modification, or a ``PAL'' major 
modification of a nonattainment pollutant in a nonattainment area 
without obtaining a construction permit from the Alaska Department of 
Environmental Conservation. 18 AAC 50.311 also specifies what must be 
included in an application for a Part D nonattainment NSR permit, such 
as a demonstration that emissions of the nonattainment pollutant will 
be controlled to a rate that represents the LAER, and documentation 
that proposed emission offsets will be sufficient, enforceable, and 
occur by the time the new or modified source begins operation. Finally, 
that provision also specifies that the permit can only be issued if the 
applicant demonstrates to the Alaska Department of Environmental 
Conservation that the permitting requirements of 40 CFR 51.165 that 
have been incorporated by reference in Alaska's rules will be met. The 
Alaska incorporation by reference provision at 18 AAC 50.040(i) 
explicitly states that it is adopting the text of the identified 
provisions of 40 CFR 51.165 ``setting out provisions that a state 
implementation plan shall or may contain.'' This makes clear that the 
incorporated provisions of 40 CFR 51.165, including those specifying 
that a ``state plan may contain . . .'', are requirements of Alaska's 
Part D nonattainment NSR permitting program.
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    \2\ A memorandum with details of the Alaska program is provided 
in the docket for this action.
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    Because Alaska's reliance on 40 CFR 51.165 as part of its Part D 
nonattainment NSR program is part of an overall construction permitting 
program that imposes additional requirements on new and modified major 
sources located in nonattainment areas, and because Alaska's 
incorporation by reference of text from 40 CFR 51.165 is clear with 
respect to the intent of Alaska to adopt the permitting requirements as 
Alaska law applicable to sources locating in nonattainment areas, the 
Alaska program does not contain the issues identified above for 
Wyoming's incorporation by reference of 40 CFR 51.165.
    Idaho's SIP approved Part D nonattainment NSR rules currently 
incorporate by reference 40 CFR 51.165 (as well as all of 40 CFR part 
51, subpart I) into IDAPA 58.01.01.107.03.\3\ As was the case in 79 FR 
11711 (March 3, 2014), Idaho annually updates its adoption by reference 
of these EPA rules and EPA Region 10 has proposed to approve the 
State's July 1, 2013, update to this incorporation by reference.
---------------------------------------------------------------------------

    \3\ A memorandum with details of the Idaho program is provided 
in the docket for this action.
---------------------------------------------------------------------------

    Idaho has adopted a complete state permitting rule that includes 
provisions that are specifically applicable to sources locating in 
nonattainment areas, including state provisions specifying the 
permissible location of offsets (see IDAPA 58.01.01.200 through 228 and 
specifically 204 (PERMIT REQUIREMENTS FOR NEW MAJOR FACILITIES OR MAJOR 
MODIFICATIONS IN NONATTAINMENT AREAS). These provisions make clear that 
no source may commence construction of a new major facility or a major 
modification in a nonattainment area without obtaining a construction 
permit from the Idaho Department of Environmental Quality. IDAPA 
58.01.01.204 also points to IDAPA 58.01.01.202 for application 
requirements and to IDAPA 58.01.01.209 for administrative processing 
requirements. In addition, IDAPA 58.01.01.204 clearly states that ``The 
intent of Section 204 is to incorporate the federal nonattainment NSR 
rule requirements.'' IDAPA 58.01.01.204 then goes on in subsection .01 
to specify exactly which provisions from 40 CFR 51.165 are incorporated 
by reference for the purposes of Section 204. The effect of the 
statement of intent and the identification of specific provisions makes 
clear that these provisions of 40 CFR 51.165 are

[[Page 9199]]

requirements of Idaho's Part D nonattainment NSR permitting program.
    Because Idaho's reliance on 40 CFR 51.165 as part of its Part D 
nonattainment NSR program is part of an overall construction permitting 
program that imposes additional requirements on new and modified major 
sources located in nonattainment areas, and because Idaho's 
incorporation by reference of specific provisions from 40 CFR 51.165 at 
IDAPA 58.01.01.204 is clear with respect to the intent of Idaho to 
adopt the permitting requirements as state law applicable to sources 
locating in nonattainment areas, the Idaho program does not contain the 
issues identified above for Wyoming's incorporation by reference of 40 
CFR 51.165.
    Iowa's SIP approved Part D nonattainment NSR rules were previously 
adopted by rule into Iowa Administrative Code (IAC) 567-22.5(455B). In 
an effort to streamline administrative rules and make them more user-
friendly, Iowa consolidated the nonattainment NSR provisions into IAC 
567.31 (Chapter 31, Nonattainment Areas) in its submittal acted on by 
EPA in 79 FR 27763 (May 15, 2014). In that submittal, the provisions of 
the previous approved rule were retained by the Iowa Department of 
Natural Resources, and were simply relocated to Chapter 31. The 
relocated rules for the most part mirror language in 40 CFR 51.165, 
with some modifications by the State. In fact, the public notice for 
Iowa's rulemaking states: ``The federal regulations include many 
instructions to the states that could be confusing for businesses if 
the federal regulations were adopted by directly referencing the 
federal regulations.''
    Iowa has adopted a complete state permitting rule that includes 
provisions that are specifically applicable to sources locating in 
nonattainment areas. Specifically, IAC 567-22.5(455B) (as revised in 79 
FR 27763) and 567-31.1(455B) clearly state that no source may commence 
construction of a new major facility or a major modification in a 
nonattainment area without obtaining a construction permit from the 
Iowa Department of Natural Resources. IAC 567-22.1(1)(455B) (Permits 
Required for New or Existing Stationary Sources) also requires 
compliance with 567-22.5(455B) and IAC 567-31.3(455B) for permits prior 
to construction in nonattainment areas, and IAC 567-20.1 (Scope of 
Title--Definitions--Forms--Rules of Practice) is linked to requirements 
for areas designated as nonattainment.
    Because Iowa's language mirroring that in 40 CFR 51.165 is part of 
an overall construction permitting program that imposes additional 
requirements on new and modified major sources located in nonattainment 
areas, the Iowa program does not contain the issues identified above 
for Wyoming's incorporation by reference of 40 CFR 51.165.
    EPA has reviewed the SIPs cited by the commenter. While some of 
them may have instances of language that are problematic, none of them 
appear to have the same approvability flaws that we have identified 
with Wyoming's submittal.\4\ In particular, none of them fail to create 
an enforceable nonattainment NSR permitting program that we have 
described here. And in any case, under section 110(k)(3) we must either 
approve or disapprove Wyoming's submittal, and under section 110(l) we 
cannot approve it. Therefore we must disapprove.
---------------------------------------------------------------------------

    \4\ As we did not propose any action on the SIPs cited by 
commenter, we are not making any determination in this final action 
with regards to those SIPs.
---------------------------------------------------------------------------

    Comment: EPA's proposed action depends on a strained interpretation 
of the CAA. The commenter states that once a state submits its SIP to 
EPA, EPA's reviewing authority is limited to determining whether the 
SIP includes the requirements specified in Section 110(a)(2), and that 
EPA may not substitute its own judgment for that of the state. The 
commenter states that EPA proposes to find that Wyoming's plan is not 
enforceable because Wyoming's incorporation by reference of federal 
regulations includes language such as ``the plan shall provide'' and 
``the plan shall require''. The commenter states that EPA claims that 
this imbues Wyoming's plan with such ambiguity that it fails to create 
enforceable obligations for sources in contravention of the 
``enforceable emissions limitations'' requirement of Section 
110(a)(2)(A), and that this is a strained and illogical interpretation 
of carefully drafted federal regulations that were meant to provide 
specific guidance to states in issuing permits in nonattainment areas. 
According to the commenter, any member of the regulated community who 
sees that Wyoming's regulations fully incorporate the federal 
regulations will understand that their operations are subject to the 
limits and restrictions imposed by the federal regulations.
    Response: We disagree. First, the commenter incorrectly 
characterizes 40 CFR 51.165 as ``federal regulations that were meant to 
provide specific guidance to States in issuing permits in nonattainment 
areas.'' Instead, 40 CFR 51.165 contains the minimum requirements (not 
``guidance'') for states to meet in plan provisions (not ``in issuing 
permits'') for nonattainment areas. See 40 CFR 51.165(a). To use the 
commenter's words, 51.165 is ``carefully drafted'' to define these 
minimum requirements while allowing state plans to vary from them so 
long as the minimum requirements are met. For example, 51.165(a)(1) 
provides that states may vary from the specific definitions in 
51.165(a)(1) if the state demonstrates that the replacement definitions 
will be at least as stringent as all respects.
    We also disagree that the distinction between the minimum plan 
requirements for a permitting program and the permitting program itself 
is ``illogical.'' The actual program that a state adopts may meet the 
minimum plan requirements in any number of ways. Wyoming should be 
familiar with this distinction: As discussed above, the State chose to 
impose a construction ban in the Sheridan PM<INF>10</INF> nonattainment 
area instead of creating a full nonattainment NSR permit program. And 
for the State's PSD program, the State properly did not incorporate by 
reference 51.166, but instead adopted language from federal rules. See 
WAQSR, Chapter 6, Section 4.
    The commenter inaccurately describes phrases such as ``the plan 
shall provide'' or ``the plan shall require'' as ``isolated.'' In fact, 
virtually every source obligation in 51.165(b) is prefaced by such a 
phrase. These are not ``isolated'' instances; they are ubiquitous.
    We also disagree that it is ``strained'' to be concerned with the 
enforceability of the language that was incorporated. Faced with a 
lawsuit for violation of nonattainment NSR requirements, an owner or 
operator would naturally defend themselves by pointing out that the 
language literally does not impose requirements on owners and 
operators; instead it imposes requirements on state plans. While 
perhaps that defense would not always be successful, we do not think 
that Congress intended ``enforceable'' in section 110(a)(2)(A) to mean 
``potentially enforceable depending on whether a court will agree with 
the plaintiff's theory that the provision should not be read to mean 
what it literally says.'' In other words, SIP provisions should not 
unnecessarily create defenses that make enforceability a matter of 
chance. Furthermore, we note that violations of nonattainment NSR 
program requirements can expose owners and operators to civil and 
criminal penalties. In such cases, courts have applied higher standards 
and

[[Page 9200]]

resolved ambiguities in favor of defendants. With respect to the 
comment's unsupported argument that any member of the regulated 
community would necessarily understand the state's intent to impose 
obligations on owners and operators, our response is first, that the 
literal language of the rule as incorporated does not support that 
intent. Second, the failure to integrate nonattainment NSR requirements 
into the permitting program, as detailed above, could create confusion.
    Finally, we are not ``substituting our judgment for that of the 
state.'' The State has not provided any binding interpretation of the 
provisions that would render them enforceable. If that were possible to 
do and the State had done so, this interpretation could have been 
incorporated into the plan and potentially resolved at least some of 
the issues. In response to the comment regarding our limited review 
authority, we reiterate: ``The EPA may not approve any plan revision 
`if the revision would interfere with any applicable requirement 
concerning attainment and reasonable further progress . . . or any 
other applicable requirement of [the Clean Air Act].' '' Oklahoma v. 
EPA, 723 F.3d 1201, 1207 (10th Cir. 2013) (quoting section 110(l) of 
the Act). We note that the commenter is also mistaken in asserting that 
EPA is limited to review for compliance specifically with section 
110(a)(2) of the Act \5\--instead under 110(l) EPA must ensure 
compliance with all applicable requirements of the Act. In addition, 
the SIP revision interferes with sections 110(a)(2)(A) and 
110(a)(2)(C).
---------------------------------------------------------------------------

    \5\ The dicta quoted by the commenter from Train v. NRDC, 421 
U.S. 60 (1975) referring to 110(a)(2) was discussing the 1970 
version of the Clean Air Act. Section 110(l) was added in the 1990 
Amendments. The applicable requirement in section 110(i) was added 
in the 1977 Amendments. Applicable requirements for nonattainment 
NSR programs were added in the 1977 Amendments and revised in the 
1990 Amendments.
---------------------------------------------------------------------------

    Comment: The commenter states that EPA should not threaten the 
State of Wyoming with the loss of tens of millions of dollars in 
highway funding. According to the commenter, this is an extreme 
response to a disagreement over the proper method of incorporation by 
reference of federal regulations. The commenter states that, in 
response to its earlier commitment in a settlement, EPA now threatens 
Wyoming with highway sanctions. The commenter then details a number of 
serious concerns with highways.
    Response: We disagree that starting the sanctions clock is 
inappropriate. We noted in our proposal that, under section 179(a) of 
the CAA, our proposed disapproval would, if finalized, trigger the 
sanctions clock. The conditions that trigger the sanctions clock are 
set out in sections 179(a)(1) through (4). In this case, finalizing our 
disapproval creates the condition in 179(a)(2): Disapproval under 
section 110(k) of a submission for an area designated nonattainment (in 
this case the UGRB) based on the submission's failure to meet one or 
more of the elements required by the Act that are applicable to the 
area (in this case, nonattainment NSR provisions identified above). 
When this condition is met, 179(a) requires the Administrator to apply 
one of the sanctions in 179(b) (highway and offset sanctions) unless 
the deficiency has been corrected within 18 months, and to apply the 
other sanction in 179(b) if the deficiency is not corrected within the 
following six months. EPA's approach to the sequencing of sanctions is 
set forth in the Order of Sanctions Rule. See 40 CFR 52.31. Despite its 
tone, the comment does not dispute this point about the 
nondiscretionary operation of the Act and therefore provides no 
relevant reason that the sanctions clock should not be started by our 
disapproval. With respect to the comment's concerns with the state 
highways, we recognize those as serious. However, Congress decided that 
certain means of highway funding should be contingent on avoiding the 
circumstances in section 179(a), which Wyoming can do by developing an 
approvable submittal.
    We also disagree with the comment's characterization of EPA's 
action. First, the comment inaccurately characterizes EPA as 
``threatening'' highway sanctions. As explained above, section 179(a) 
of the Act requires that the sanctions clock start after EPA's 
disapproval of a required element of a nonattainment plan. As a simple 
matter of proper notice to the public, EPA had the responsibility in 
our proposal to inform the public of this potential consequence of our 
proposed disapproval. There was no ``threat'' involved in stating the 
basic nondiscretionary operation of the CAA. The comment also without 
any basis characterizes EPA's action as a ``departure from EPA's more 
measured response throughout the country when disagreements have arisen 
in the past.'' The comment did not identify any actions where EPA 
disapproved a required nonattainment plan element and failed to start 
the sanctions clock, and in any case the Act requires that the clock be 
started.
    In general, EPA would prefer to work with states to develop 
approvable submittals instead of disapproving flawed submittals and (in 
the case of nonattainment plans) triggering clocks for sanctions and 
FIP obligations. In this case, we were subject to a court-ordered 
deadline to finalize action on the submittal. We are still happy to 
work with the State to develop an approvable submittal, and we note 
that, under the Order of Sanctions Rule, in certain circumstances EPA 
can stay sanctions if the State has done so even before EPA takes final 
action on the approvable submittal. See 40 CFR 52.31(d).

V. What action is EPA taking today?

    We have fully considered the comments we received, and have 
concluded that no changes from our proposed rule are warranted. As 
discussed in our proposal and this notice, our action is based on an 
evaluation of Wyoming's rules against the requirements of CAA sections 
110(a)(2)(C), 110(a)(2)(A), 110(i), 110(l), 172(c)(5), 172(c)(7), 173, 
regulations at 40 CFR 51.165, and other requirements discussed in 
section III of this action.
    As described in our proposed rulemaking, and in Section II of this 
notice, EPA is approving the SIP revisions submitted by Wyoming on 
February 13, 2013 and February 10, 2014.
    As described in our proposed rulemaking, and in Section III of this 
notice, EPA is disapproving the portion of the SIP revisions submitted 
by Wyoming on May 10, 2011 that adds Chapter 6, Section 13 to the 
Wyoming SIP.
    We are sensitive to the concerns expressed in the State's comments. 
We also understand the State's goals in promulgating Chapter 6, Section 
13, to have a SIP-approved permit program for sources located in 
nonattainment areas. We intend to work with the State to develop 
revised rules that are consistent with the State goals and consistent 
with the CAA and implementing regulations.

VI. Statutory and Executive Orders Review

    Under the Clean Air Act, 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 Clean Air Act. 
Accordingly, this action merely approves state law as meeting federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
    <bullet> Is not a ``significant regulatory action'' subject to 
review by the Office

[[Page 9201]]

of Management and Budget under Executive Order 12866 (58 FR 51735, 
October 4, 1993);
    <bullet> does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> is certified as not having a significant economic impact 
in a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
    <bullet> 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);
    <bullet> does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> 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 Clean Air Act; and
    <bullet> 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 April 21, 2015. 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 CAA 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.

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

    Dated: January 30, 2015.
Debra H. Thomas,
Acting Regional Administrator, Region 8.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart ZZ--Wyoming

0
2. In Sec.  52.2620, the table in paragraph (c)(1) is amended under 
Chapter 3 by removing the entry for Section 4 and by adding the entry 
for Section 9 to read as follows:


Sec.  52.2620  Identification of plan.

* * * * *
    (c) * * *
    (1) * * *

----------------------------------------------------------------------------------------------------------------
                                                         State adopted
          State citation              Title/subject      and effective   EPA approval date       Explanations
                                                             date         and citation \1\
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                                    Chapter 3
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 9........................  Incorporation by         9/12/2013,  2/20/2015, [insert
                                    reference.              11/22/2013   Federal Register
                                                                         citation].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\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.


[[Page 9202]]

* * * * *
[FR Doc. 2015-03180 Filed 2-19-15; 8:45 am]
BILLING CODE 6560-50-P


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