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[Federal Register Volume 81, Number 106 (Thursday, June 2, 2016)]
[Rules and Regulations]
[Pages 35271-35274]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-12725]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-0AR-2016-0014; FRL-9947-13-Region 8]

Approval and Promulgation of Air Quality Implementation Plans; 
Wyoming; Revisions to Wyoming Air Quality Standards and Regulations

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to approve State Implementation Plan (SIP) revisions submitted 
by the State of Wyoming on November 6, 2015. 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. This action is being taken under section 110 of 
the Clean Air Act (CAA).

DATES: This final rule is effective July 5, 2016.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R08-0AR-2016-0014. All documents in the docket are 
listed in the http://www.regulations.gov index. Although listed in the 
index, some information is not publicly available, e.g., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, will be publicly available only 
in hard copy. Publicly available docket materials are available either 
electronically in http://www.regulations.gov or in hard copy at the Air 
Program, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop 
Street, Denver, Colorado 80202-1129. The 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 a.m. to 4 p.m., excluding federal 
holidays.

FOR FURTHER INFORMATION CONTACT: Kevin Leone, Air Program, Mailcode SP 
AR, Environmental Protection Agency, Region 8, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129, (303) 312-6227, or leone.kevin @epa.gov.

I. Background

    In this final rulemaking, we are taking action to approve the 
addition of Chapter 6, Section 13, Nonattainment permit requirements, 
and updated Section 14, Incorporation by reference, Wyoming Air Quality 
Standards and Regulations (WAQSR) to the Wyoming SIP. These provisions 
were submitted by the Wyoming Department of Environmental Quality 
(WDEQ) on November 6, 2015, to address certain CAA requirements related 
to ozone nonattainment areas.
    On March 27, 2008 , the 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''). Effective 
July 20, 2012, the EPA designated the Upper Green River Basin (UGRB) 
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 UGRB area as 
nonattainment for the 8-Hour Ozone NAAQS, the WDEQ submitted a 
nonattainment new source review (NSR) permitting program SIP revision 
to EPA. This new section incorporated by reference 40 CFR 51.165 in its 
entirety, with the exception of paragraphs (a) and (a)(l), into 
Wyoming's Chapter 6 Permitting Requirements. On February 20, 2015 (80 
FR 9194), the EPA took final action to disapprove the portion of 
Wyoming's May 10, 2011 submittal that added this new section to the 
permitting requirements in WAQSR Chapter 6. As explained in 80 FR 9194, 
the method Wyoming used to create a nonattainment NSR program was not 
consistent with the CAA and EPA regulations.
    Our final disapproval started 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 by the approval of this SIP revision addressing the 
deficiency in Wyoming's nonattainment NSR permitting requirements. 
Under section 110(c)(1), the EPA must promulgate a FIP addressing the 
deficiencies unless the state corrects the deficiencies, and the EPA 
approves the plan or plan revision, before the EPA promulgates the FIP. 
Under section 179(a), sanctions apply unless the deficiency has been 
corrected within 18 months. See also 40 CFR 52.31(d). With our approval 
of the November 6, 2015 submittal, we are affirmatively determining 
that the deficiencies identified in our February 20, 2015 notice have 
been corrected, and as a result the deadlines for a FIP and sanctions 
have been removed.
    The SIP revisions submitted by the WDEQ on November 6, 2015, 
involve Chapter 6, Permitting Requirements, Section 13, Nonattainment 
new source review permit requirements, and Section 14, Incorporation by 
reference. The revisions to Section 13 establish specific nonattainment 
new source review permitting requirements. In Section 13, the WDEQ has 
incorporated federal regulatory language from 40 CFR 51.165 and 
reformatted it into state specific language that effectively imposes 
requirements on major sources in Wyoming. Additionally, the WDEQ has 
revised language within the rule to maintain consistency with the 
State's Prevention of Significant Deterioration (PSD) regulations 
(WAQSR Chapter 6, Section 4). In addition to the revisions to Chapter 
6, Section 13, the November 6, 2015, submittal also updates Chapter 6, 
Section 14, Incorporation by reference, to adopt by reference the CFR 
as published on July 1, 2014. The State previously submitted SIP 
revisions for Chapter 6, Section 14 on May 28, 2015 that requested 
adoption by reference of the CFR as published on July 1, 2013.

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

    In our March 1, 2016 proposed action (81 FR 10559), we proposed to 
approve the following revisions to the WASQR: Chapter 6, Section 13, 
Nonattainment permit requirements, and updated Section 14, 
Incorporation by reference, WAQSR to the Wyoming SIP. As explained in 
81 FR 10559, these changes are consistent with CAA and EPA regulations 
and address the deficiencies identified in our February 20, 2015 
disapproval.
    Instead of incorporating 40 CFR 51.165 by reference, the November 
6, 2015 submittal adapts the language in 40 CFR 51.165 to remove 
phrases such as ``the plan shall provide'' and ``the plan may 
provide,'' and specifies the procedures to be used. In addition, the 
submittal revises language in 40 CFR 51.165 to specify that the WDEQ is 
the reviewing authority. In one place, the submittal modifies the term 
``building, structure, facility, or installation'' to ``structure, 
building, facility, equipment, installation, or operation,'' without

[[Page 35272]]

modifying the substance of the definition of the term, which is 
permissible. These changes are consistent with the CAA and EPA 
regulations. Specifically:
    1. CAA section 110(a)(2)(C), 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), 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].'' By removing language such as ``the plan shall 
provide,'' the submittal avoids any ambiguity as to whether permits are 
required.
    3. CAA section 173, lays out the requirements for obtaining a 
permit that must be included in a state's SIP-approved permit program. 
Wyoming's Chapter 6, Section 13 rules impose these requirements on 
sources, and the State's proposed plan clearly satisfies the 
requirements of these statutory provisions.
    4. CAA section 110(a)(2)(A), 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. Chapter 6, 
Section 13 creates enforceable obligations for sources by removing 
phrases such as ``the plan shall provide'' and ``the plan may 
provide.''
    5. CAA section 110(i), (with certain limited exceptions) prohibits 
states from modifying SIP requirements for stationary sources except 
through the SIP revision process. By eliminating unspecified procedures 
that were referenced in the May 10, 2011 submittal, the November 6, 
2015 submittal addresses this issue.
    6. CAA section 172(c)(7), requires that nonattainment plans, 
including nonattainment NSR programs required by section 172(c)(5), 
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(1), provides that EPA cannot approve a SIP 
revision that interferes with any applicable requirement of the Act. As 
described above, the addition of Chapter 6, Section 13 to the Wyoming 
SIP would not interfere with sections 110(a)(2) and 110(i) of the Act.
    8. Wyoming's SIP revision complies with the requirements of 40 CFR 
51.165 as the plan imposes the regulatory requirements on individual 
sources, as required by the regulatory provisions. The crosswalk table 
in the docket details how the submittal addresses specific requirements 
in 40 CFR 51.165.
    Wyoming's submittal also addresses the potential conflicts with the 
State's approved minor NSR and PSD programs that existed in the May 5, 
2011 submittal. First, Section 13(c)(i) provides that the exemptions in 
the minor NSR program (Section 2(k)) shall not apply with regards to 
applicability of the nonattainment NSR program. Second, Section 
13(d)(iv) states that lowest achievable emissions rate (LAER), not best 
available control technology (BACT), applies to sources subject to 
nonattainment NSR. Finally, Section 13(f)(iii) clarifies that Section 
13 does not apply in the Sheridan PM10 nonattainment area; 
instead the construction ban in Section 2(c)(ii)(B) continues to apply. 
We also note that Wyoming will have permitting authority for new major 
sources and major modifications in the Sheridan coarse particulate 
matter (PM10) nonattainment area, if Wyoming submits and we 
approve the removal of the construction ban from the SIP. Wyoming has 
had a construction ban in place and approved into the SIP for over 20 
years (See WAQSR, Chapter 6, Section 2(c)(ii)(B)).
    EPA's final approval of Wyoming's nonattainment permitting program 
allows Wyoming to apply WAQSR Chapter 6, Section 13 as permitting 
authority in the UGRB ozone nonattainment area for new major sources 
and major modifications of nitrogen oxide (NOX) and volatile 
organic ompounds (VOCs) as ozone precursors.
    Finally, as explained in our proposal notice, the November 6, 2015 
submittal treats sulfur dioxide (SO2) as a precursor to PM2.s, and 
presumes that NOX is also a precursor to PM2.s. The State of 
Wyoming has no nonattainment areas for the PM2.s standards. 
Accordingly, the EPA finds it reasonable to conclude that major sources 
of VOCs and ammonia do not contribute significantly to PM2.s 
nonattainment within the State. Thus, there is no need at this time for 
the State to regulate VOCs or ammonia as PM2.s precursors in the 
State's nonattainment NSR permitting program, and so we are approving 
the submittal 's PM2.s precursor provisions. Should the EPA in the 
future designate an area in Wyoming as nonattainment for PM2.s, the 
State would have the obligation to ensure that the nonattainment NSR 
program met all applicable requirements for PM2.s, including 
appropriate control of precursors. See CAA sections 172(c)(5) and 
189(a)(l)(A).
    We provided a detailed explanation of the basis of approval in our 
proposed rulemaking (see 79 FR 65362). We invited comment on all 
aspects of our proposal and provided a 30-day comment period. The 
comment period ended on March 31, 2016.

III. Response to Comments

    We received one comment letter during the public comment period. 
The comment letter was submitted by Nancy E. Vehr, Air Quality Division 
(AQD) Administrator for the State of Wyoming.
    Comment: The comment expresses the AQD's support for the EPA's 
proposed approval of the addition of Chapter 6, Section 13, 
Nonattainment permit requirements, and updated Section 14, 
Incorporation by reference, WAQSR to the Wyoming SIP.
    Response: We have received the comment and acknowledge the support.

IV. What action is EPA taking today?

    The EPA is taking final action to fully approve Wyoming's November 
6, 2015, submittal. 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(1), 172(c)(5), 172(c)(7), 173, and regulations at 40 CFR 51.165.
    As described in our proposed rulemaking, and in Section II of this 
notice, the EPA is approving the addition of Chapter 6, Section 13, 
Nonattainment new source review permit requirements, and updated 
Section 14, Incorporation by reference, WAQSR to the Wyoming SIP 
submitted by Wyoming on November 6, 2015. We are also determining that 
the November 6, 2015 submittal addresses the deficiencies identified by 
the EPA in Wyoming 's prior submittal of Section 13; as a result the 
deadlines for a FIP and sanctions are removed.

V. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes 
incorporation by reference.
    In accordance with requirements of 1 CFR 51.5, the EPA is 
finalizing the incorporation by reference of the WDEQ rules as 
described in the amendments to 40 CFR part 52 set forth in this 
document. The EPA has made, and will continue to make, these documents 
generally available electronically through www.regulations.gov and/or 
in hard copy at the appropriate EPA office

[[Page 35273]]

(see the ADDRESSES section of this preamble for more information).

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. 741O(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:
     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 
in 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 Clean Air Act; 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).
    The SIP is not approved to apply on any Indian reservation land or 
in any other area where EPA or an Indian tribe has demonstrated that a 
tribe has jurisdiction. In those areas of Indian country, the rule does 
not have tribal implications and will not impose substantial direct 
costs on tribal governments or preempt tribal law as specified by 
Executive Order 13175 (65 FR 67249, November 9, 2000).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. The 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)(l) 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 August 1, 2016. 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: May 11, 2016.
Shaun L. McGrath,
Regional Administrator, Region 8.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart ZZ--Wyoming

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2. In Sec.  52.2620, in the table in paragraph (c), under ''Chapter 06. 
Permitting Requirements.'' add an entry for ``Section 13'' and revise 
the entry for ``Section 14'' to read as follows:

Sec.  52.2620  Identification of plan.

* * * * *
    (c) * * *

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                                                                     State       EPA effective
              Rule No.                       Rule title            effective         date         Final rule citation/date             Comments
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                                                           Chapter 06. Permitting Requirements
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                                                                      * * * * * * *
Section 13..........................  Nonattainment new source      10/13/2015        7/5/2016  6/2/2016 [insert Federal     ...........................
                                       review permit                                             Register citation].
                                       requirements.
Section 14..........................  Incorporation by              10/13/2015        7/5/2016  6/2/2016 [insert Federal     ...........................
                                       reference.                                                Register citation].
 
                                                                      * * * * * * *
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[FR Doc. 2016-12725 Filed 6-1-16; 8:45 am]
 BILLING CODE 6560-50-P
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