[Federal Register Volume 73, Number 63 (Tuesday, April 1, 2008)]
[Proposed Rules]
[Pages 17289-17292]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-6642]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2007-0645; FRL-8549-3]
Approval and Promulgation of Air Quality Implementation Plans;
Wyoming; Revisions to New Source Review Rules
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to approve the State Implementation Plan
(SIP) revisions submitted by the State of Wyoming on December 13, 2006.
The proposed revisions modify the State's Prevention of Significant
Deterioration (PSD) regulations to address changes to the federal NSR
regulations promulgated by EPA on December 31, 2002, and reconsidered
with minor changes on November 7, 2003. The State of Wyoming has a
federally-approved PSD program for new and modified sources impacting
attainment areas in the State. Wyoming does not have a Nonattainment
New Source Review (NNSR) program. This action is being taken under
section 110 of the Clean Air Act.
DATES: Comments must be received on or before May 1, 2008.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2007-0645, by one of the following methods:
http://www.regulations.gov. Follow the on-line
instructions for submitting comments.
E-mail: [email protected] and
[email protected].
Fax: (303) 312-6064 (please alert the individual listed in
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
Mail: Callie Videtich, Director, Air Program,
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595
Wynkoop Street, Denver, Colorado 80202-1129.
Hand Delivery: Callie Videtich, Director, Air Program,
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595
Wynkoop, Denver, Colorado 80202-1129. Such deliveries are only accepted
Monday through Friday, 8 a.m. to 4:55 p.m., excluding Federal holidays.
Special arrangements should be made for deliveries of boxed
information.
Special arrangements should be made for deliveries of boxed
information.
Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-
2007-0645. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA, without
going through http://www.regulations.gov your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting
comments, go to Section I. General Information of the SUPPLEMENTARY
INFORMATION section of this document.
Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly-available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Air and Radiation
Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-
AR, 1595 Wynkoop, 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: Domenico Mastrangelo, Air Program,
U.S. Environmental Protection Agency, Region 8, Mailcode 8P-AR, 1595
Wynkoop, Denver, Colorado 80202-1129, (303) 312-6436,
[email protected].
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.
(iv) The words State or Wyoming mean the State of Wyoming unless
the context indicates otherwise.
Table of Contents
I. General Information
What Should I Consider as I Prepare My Comments for EPA?
II. What is being addressed in this document?
III. What is the State process to submit these materials to EPA?
IV. What are the changes that EPA is approving?
V. What action is EPA taking today?
VI. Statutory and Executive Order Reviews
I. General Information
What should I consider as I prepare my comments for EPA?
1. Submitting CBI. Do not submit CBI to EPA through http://www.regulations.gov or e-mail. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as
CBI and then identify electronically within the disk or CD ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in
[[Page 17290]]
accordance with procedures set forth in 40 CFR part 2.
2. Tips for Preparing Your Comments. When submitting comments,
remember to:
a. Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date and page number).
b. Follow directions--The agency may ask you to respond to specific
questions or organize comments by referencing a Code of Federal
Regulations (CFR) part or section number.
c. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
d. Describe any assumptions and provide any technical information
and/or data that you used.
e. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
f. Provide specific examples to illustrate your concerns, and
suggest alternatives.
g. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
h. Make sure to submit your comments by the comment period deadline
identified.
II. What is being addressed in this document?
EPA is proposing to approve the revisions to Chapter 6, Section 4
of the Wyoming Air Quality Standards and Regulations (WAQS&R) submitted
by the State on December 13, 2006 that relate to the State PSD
construction permit programs. The revisions to the State PSD SIP were
adopted by the Wyoming Environmental Quality Council (EQC) on July 27,
2006 and became effective October 6, 2006. Wyoming's PSD program had
first been approved by EPA into the State SIP on September 6, 1979 (44
FR 51977).
On December 31, 2002, EPA published revisions to the Federal PSD
and non-attainment NSR regulations in 40 Code of Federal Regulations
(CFR) Parts 51 and 52 (67 FR 80186). This action was reconsidered with
minor changes on November 7, 2003 (68 FR 63021). Collectively, these
two final actions are referred to as the ``NSR Reform'' regulations and
became effective nationally in areas not covered by a SIP on March 3,
2003. These regulatory revisions included provisions for baseline
emissions determinations, actual-to-future-actual methodology,
plantwide applicability limits (PALs), Clean Units, and Pollution
Control Projects (PCPs). As stated in the December 31, 2002 rulemaking,
State and local permitting agencies must adopt and submit revisions to
their part 51 permitting programs implementing the minimum program
elements (67 FR 80240). With the December 13, 2006 submittal, Wyoming
requested approval of program revisions into the State SIP that satisfy
this requirement.
In the November 7, 2003 reconsideration noted earlier, EPA
clarified two provisions in the regulations by including a definition
of ``replacement unit'' and by clarifying that the PALs baseline
calculation procedures for newly constructed units do not apply to
modified units (68 FR 63021).
On June 24, 2005, the United States Court of Appeals for the
District of Columbia Circuit issued a ruling on challenges to the
December 2002 NSR Reform revisions, State of New York et al. v. EPA,
413 F.3d 3 (D.C. Cir. 2005). Although the Court upheld most of EPA's
rules, it vacated both the Clean Unit (CU) and the PCP provisions and
remanded back to EPA the recordkeeping provisions at 40 CFR 52.21(r)(6)
that required a stationary source to keep records of projects when
there was a ``reasonable possibility'' that the project could result in
a significant emissions increase. EPA brought its NSR Reform
regulations in conformity with the Court's June 24, 2005 ruling in a
final rulemaking published on June 13, 2007 (72 FR 32526). In this
action, EPA removed from the Code of Federal Regulations (CFR) the PCP
and CU provisions contained in sections 40 CFR 51.165, 51.166, and
52.21.
On October 27, 2003 EPA published a rulemaking action related to,
but not part of, the 2002 NSR Reform. EPA published the Routine
Equipment Replacement Provision (ERP) amendments (68 FR 61248) which
specified at 40 CFR 51.166(b)(2)(iii)(a) the criteria for the routine
replacement of equipment. On December 24, 2003 the Court of Appeals for
the DC Circuit on challenges to the October 27, 2003 EPA rulemaking
stayed EPA's final Routine Equipment Replacement Provision, State of
New York v. EPA, No. 03-1380. On March 17, 2006, the same Court vacated
these provisions.
In its revision to Chapter 6, Section 4 of the Wyoming Air Quality
Standards and Regulations, Wyoming did not include the vacated Clean
Unit, PCP, and ERP provisions.
III. What is the State process to submit these materials to EPA?
Section 110(k) of the CAA addresses EPA's actions on submissions of
revisions to a SIP. The CAA requires States to observe certain
procedural requirements in developing SIP revisions for submittal to
EPA. Section 110(a)(2) of the CAA requires that each SIP revision be
adopted after reasonable notice and public hearing. This must occur
prior to the revision being submitted by a state to EPA. The Wyoming
Air Quality Division (AQD) held a public hearing on July 18, 2006 to
propose revisions consistent with the EPA 2002 NSR Reform to Chapter 6,
Permitting Requirements, Section 4, Prevention of Significant
Deterioration (PSD). The revised PSD provisions were adopted on July
27, 2006, effective October 6, 2006. The Governor submitted these SIP
revisions to EPA on December 13, 2006.
We have evaluated the Governor's submittal of the PSD SIP revisions
and have determined that the State met the requirements for reasonable
notice and public hearing under Section 110(a)(2) of the CAA.
IV. What are the changes that EPA is approving?
EPA is proposing to approve revisions to the Wyoming SIP that would
bring the State PSD program provisions in conformity with the 2002 NSR
Reform Rules. Wyoming sought to develop a regulatory program that
closely reflects the federal NSR regulations and conforms to the
requirements of 40 CFR 51.166. The revised PSD provisions reflect the
body of EPA NSR Reform rules promulgated in the December 31, 2002
Federal Register (67 FR 80186) and related courts decisions that stayed
or vacated portions of EPA's final rulemakings. The following is an
examination of only those few areas in which the State of Wyoming
altered the Federal regulatory text or approach. A detailed comparison
of Chapter 6, Section 4 of the WAQS&R to the Federal requirements at 40
CFR 52.166 can be found in the Technical Support Document prepared for
this rulemaking.
The revised Chapter 6, Section 4 of the WAQS&R submitted to EPA on
December 13, 2006 does not include the Equipment Replacement Provision
(ERP) promulgated by EPA in its October 27, 2003 final rulemaking. The
ERP rule was stayed by the United States Court of Appeals for the
District of Columbia in a December 24, 2003 decision--State of New York
et al. v. EPA, 413 F3.d 3 (DC Cir. 2005). The same Court vacated the
ERP rules on March 17, 2006. Also, the Wyoming revised NSR SIP does not
include Pollution Control Projects and Clean Unit provisions, that were
vacated by the United States Court of Appeals for
[[Page 17291]]
the District of Columbia on June 24, 2005.\1\
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\1\ EPA removed these provisions from the 40 CFR 52.165, 52.166
and 52.21 on June 13, 2007 (72 FR 32526).
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As noted earlier, this Court decision also remanded back to EPA the
recordkeeping provisions at 40 CFR 52.21(r)(6). The phrase ``reasonable
possibility'' used in the federal rule at 40 CFR 52.21(r)(6) limits the
recordkeeping provisions to modifications at facilities that use the
actual-to-future-actual methodology to calculate emissions changes and
that may have a ``reasonable possibility'' of a significant emissions
increase. The revised PSD rules submitted by the State of Wyoming in
December 2006 do include recordkeeping requirements at Chapter 6,
Section 4(b)(i)(H)(I): ``Before beginning actual construction of the
project, the owner or operator shall document and maintain a record of
the following information....'' This language lacks the ``reasonable
possibility'' phrase objected to by the Court, and sets requirements
that are more stringent than the equivalent EPA provisions in the 2002
NSR Reform rules. It is therefore, approvable.
During the year since the State of Wyoming submitted the
recordkeeping requirements provisions of Chapter 6, Section
4(b)(i)(H)(I) being approved in this action, EPA addressed the Court
remand on the ``reasonable possibility'' language omitted in the
Wyoming SIP. On March 8, 2007 EPA proposed two alternative options to
clarify what constitutes ``reasonable possibility'' (72 FR 10445).
Based on the public comments received, EPA identifies in a December 21,
2007 final rulemaking the criteria triggering the ``reasonable
possibility'' recordkeeping and reporting standard for the 2002 NSR
reform rules (72 FR 72607). To make the State NSR SIP provisions
consistent with the EPA December 21, 2007 rulemaking and maintain the
current recordkeeping provisions of Chapter 6, Section 4(b)(i)(H)(I),
Wyoming needs to submit a notice to EPA within 3 years to acknowledge
that their regulations fulfill these requirements.
The Wyoming PSD revisions do not address the definition of
``replacement unit'' approved by EPA in the November 7, 2003
reconsideration of the 2002 NSR Reform. This omission was based on the
State understanding that the NSR Reform Rules contained ``replacement
unit'' references only within the PCPs and CU provisions that Wyoming,
as noted above, has not adopted. As the State realized that both its
revised and its EPA-approved NSR SIPs include a reference to
``replacement unit'' in their definition of ``Net emission increase''
at Chapter 6, Section 4(a)(viii), the State addressed this issue to the
satisfaction of EPA. In an exchange of e-mails with EPA on August 13
and September 5, 2007 (included as part of the docket for this action),
the State of Wyoming indicated its agreement with EPA's interpretation
of the definition of ``replacement unit'' detailed in the EPA
``Technical Support Document (TSD) for the Prevention of Significant
Deterioration (PSD) and Nonattainment Area New Source Review (NSR):
Reconsideration.'' This TSD was posted in support of EPA's November 7,
2003 Reconsideration Notice on the public Docket ID No. A-2001-0004. In
response to a public comment for that 2003 rulemaking, EPA wrote: ``We
do not believe that adding a definition of replacement unit is
essential for implementing the provisions as finalized in the December
2002 final rules because the preamble in the 1992 WEPCO rules spoke to
this issue (see 57 FR 32324); and, we have historically applied this
approach for determining whether an emissions unit is a replacement
unit. Nevertheless, we do agree with the commenter that it would be
convenient to have this definition within the regulatory text to
improve the overall clarity of the rule. Accordingly, the Federal
Register announcing our final decisions on reconsideration also
contains amendatory language to add this definition to the final rules.
* * *'' (TSD, page 98). Therefore, EPA recommends that the State of
Wyoming make its PSD SIP formally consistent with the Federal language
by adopting the definition of ``replacement unit'' in a future
rulemaking. However, the omission of this definition from Wyoming's PSD
regulations is approvable since EPA indicated in the 2003 rulemaking
that this definition was added to provide clarity.
The requirements included in Wyoming's PSD program, as specified in
Chapter 6, Section 4, are substantively the same as the federal
provisions. As part of its review of the Wyoming submittal, EPA
performed a line-by-line review of the proposed revisions and has
determined that they are consistent with the program requirements for
the preparation, adoption and submittal of implementation plans for the
Prevention of Significant Deterioration of Air Quality, as set forth at
40 CFR 51.166.
V. What action is EPA taking today?
EPA is proposing to approve the revisions to the Wyoming Air
Quality Standards and Regulations, Chapter 6, Section 4, Prevention of
Significant Deterioration submitted to EPA by the State of Wyoming on
December 13, 2006.
VI. Statutory and Executive Order Reviews
Executive Order 12866; Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget.
Executive Order 13211: Actions That Significantly Affect Energy Supply,
Distribution, or Use
Because it is not a ``significant regulatory action'' under
Executive Order 12866 or a ``significant energy action,'' as that term
is defined in Executive Order 13211, this action is also not subject to
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001).
Regulatory Flexibility Act
This proposed action merely proposes to approve state law as
meeting Federal requirements and imposes no additional requirements
beyond those imposed by state law. Accordingly, the Administrator
certifies that this proposed rule will not have a significant economic
impact on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.).
Unfunded Mandates Reform Act
Because this rule proposes to approve pre-existing requirements
under state law and does not impose any additional enforceable duty
beyond that required by state law, it 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).
Executive Order 13175 Consultation and Coordination With Indian Tribal
Governments
This proposed rule does not have tribal implications because it
will not have a substantial direct effect on one or more Indian tribes,
on the relationship between the Federal Government and Indian tribes,
or on the distribution of power and responsibilities between the
Federal Government and Indian tribes, as specified by Executive Order
13175 (65 FR 67249, November 9, 2000).
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Executive Order 13132 Federalism
This action does not have Federalism implications because it does
not have substantial direct effects on the states, on the relationship
between the national government and the states, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132 (64 FR 43255, August 10, 1999).
This action merely proposes to approve a state rule implementing a
federal standard, and does not alter the relationship or the
distribution of power and responsibilities established in the Clean Air
Act.
Executive Order 13045 Protection of Children From Environmental Health
and Safety Risks
This proposed rule also is not subject to Executive Order 13045
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because it proposes to approve a
state rule implementing a Federal standard.
National Technology Transfer Advancement Act
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
state to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply.
Paperwork Reduction Act
This proposed rule does not impose an information collection burden
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides,
Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: March 20, 2008.
Carol Rushin,
Acting Regional Administrator, Region 8.
[FR Doc. E8-6642 Filed 3-31-08; 8:45 am]
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