
[Federal Register: April 1, 2008 (Volume 73, Number 63)]
[Proposed Rules]               
[Page 17289-17292]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01ap08-15]                         

-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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: videtich.callie@epa.gov and 
mastrangelo.domenico@epa.gov.
     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, 
mastrangelo.domenico@epa.gov.

SUPPLEMENTARY INFORMATION:

Definitions

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

    \1\ EPA removed these provisions from the 40 CFR 52.165, 52.166 
and 52.21 on June 13, 2007 (72 FR 32526).
---------------------------------------------------------------------------

    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).

[[Page 17292]]

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]

BILLING CODE 6560-50-P
