Clean Air Act Interim Approval of Operating Permit Program; State of Wyoming

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[WY-001a; FRL-5076-2]

Clean Air Act Interim Approval of Operating Permit Program; State

of Wyoming

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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

SUMMARY: The EPA is promulgating interim approval of the Operating

Permit Program submitted by the State of Wyoming. Wyoming's Operating

Permit Program was submitted for the purpose of complying with Federal

requirements which mandate that states develop, and submit to EPA,

programs for issuing operating permits to all major stationary sources,

and to certain other sources.

DATES: This direct final rule is effective on November 22, 1994 unless

adverse or critical comments are received by October 24, 1994. If the

effective date is delayed, timely notice will be published in the

Federal Register.

ADDRESSES: Comments should be addressed to Laura Farris, 8ART-AP, at

the EPA Regional 8 Office listed.

Copies of the State's submittal and other supporting information

used in developing this final rule are available for public inspection

during normal business hours at the following location: U.S.

Environmental Protection Agency, Region 8, 999 18th Street, suite 500,

Denver, Colorado 80202.

FOR FURTHER INFORMATION CONTACT: Laura Farris, 8ART-AP, U.S.

Environmental Protection Agency, Region 8, 999 18th Street, suite 500,

Denver, Colorado 80202, (303) 294-7539.

SUPPLEMENTARY INFORMATION:

I. Background

As required under title V of the Clean Air Act (``the Act'') as

amended (1990), EPA has promulgated rules which define the minimum

elements of an approvable state operating permit program and the

corresponding standards and procedures by which the EPA will approve,

oversee, and withdraw approval of state operating permit programs (see

57 FR 32250 (July 21, 1992)). These rules are codified at 40 Code of

Federal Regulations (CFR) part 70 (part 70). title V requires states to

develop, and submit to EPA, programs for issuing these operating

permits to all major stationary sources and to certain other sources.

The Act requires that states develop and submit these programs to

EPA by November 15, 1993, and that EPA act to approve or disapprove

each program within 1 year after receiving the submittal. The EPA's

program review occurs pursuant to section 502 of the Act and the part

70 regulations, which together outline criteria for approval or

disapproval. Where a program substantially, but not fully, meets the

requirements of part 70, EPA may grant the program interim approval for

a period of up to 2 years. If EPA has not fully approved a program by 2

years after the November 15, 1993 date, or by the end of an interim

program, it must establish and implement a Federal program.

The EPA is publishing this action without prior proposal because

the Agency views this as a noncontroversial action and anticipates no

adverse comments. However, in a separate document in this Federal

Register publication, the EPA is proposing interim approval of the

Operating Permit Program submitted by the State of Wyoming should

adverse or critical comments be filed. Under the procedures established

in the May 10, 1994 Federal Register, this action will be effective on

November 22, 1994 unless, by October 24, 1994, adverse or critical

comments are received.

If the EPA receives such comments, this action will be withdrawn

before the effective date by publishing a subsequent document that will

withdraw the final action. All public comments received will then be

addressed in a subsequent final rule based on this action serving as a

proposed rule. The EPA will not institute a second comment period. Any

parties interested in commenting on this action should do so at this

time. If no such comments are received, the public is advised that this

action will be effective on November 22, 1994.

II. Final Action and Implications

A. Analysis of State Submission

1. Support Materials

The Governor of Wyoming submitted an administratively complete

title V Operating Permit Program (PROGRAM) for the State of Wyoming on

November 19, 1993. EPA deemed the PROGRAM administratively complete in

a letter to the Governor dated January 4, 1994. The PROGRAM submittal

includes a legal opinion from the Attorney General of Wyoming stating

that the laws of the State provide adequate legal authority to carry

out all aspects of the PROGRAM, and a description of how the State

intends to implement the PROGRAM. The submittal additionally contains

evidence of proper adoption of the PROGRAM regulations, application and

permit forms, and a permit fee demonstration.

2. Regulations and Program Implementation

The Wyoming PROGRAM, including the operating permit regulation

(Section 30 of the Wyoming Air Quality Standards and Regulations),

substantially meets the requirements of 40 CFR 70.2 and 70.3 with

respect to applicability; 40 CFR 70.4, 70.5, and 70.6 with respect to

permit content including operational flexibility; 40 CFR 70.5 with

respect to complete application forms and criteria which define

insignificant activities (emission thresholds are identified in section

30 as one ton per year for regulated pollutants, excluding hazardous

air pollutant [HAP] sources, and 1000 pounds per year for HAPs); 40 CFR

70.7 with respect to public participation and minor permit

modifications; and 40 CFR 70.11 with respect to requirements for

enforcement authority.

Wyoming has the authority to issue a variance from requirements

imposed by State law (36-11-601 W.S.A.). The EPA regards this provision

as wholly external to the PROGRAM submitted for approval under part 70,

and consequently is proposing to take no action on this provision of

State law. The EPA has no authority to approve provisions of State law,

such as the variance provision referred to, which are inconsistent with

the Act. The EPA does not recognize the ability of a permitting

authority to grant relief from the duty to comply with a federally

enforceable part 70 permit, except where such relief is granted through

procedures allowed by part 70. The EPA reserves the right to enforce

the terms of the part 70 permit where the permitting authority purports

to grant relief from the duty to comply with a part 70 permit in a

manner inconsistent with part 70 procedures.

Part 70 of the operating permit regulations requires prompt

reporting of deviations from the permit requirements. Section

70.6(a)(3)(iii)(B) requires the permitting authority to define prompt

in relation to the degree and type of deviation likely to occur and the

applicable requirements. Although the permit program regulations should

define prompt for purposes of administrative efficiency and clarity, an

acceptable alternative is to define prompt in each individual permit.

The EPA believes that prompt should generally be defined as requiring

reporting within two to ten days of the deviation. Two to ten days is

sufficient time in most cases to protect public health and safety as

well as to provide a forewarning of potential problems. For sources

with a low level of excess emissions, a longer time period may be

acceptable. However, prompt reporting must be more frequent than the

semiannual reporting requirement, given this is a distinct reporting

obligation under Sec. 70.6(a)(3)(iii)(A). Where ``prompt'' is defined

in the individual permit but not in the program regulations, EPA may

veto permits that do not contain sufficiently prompt reporting of

deviations. The Wyoming PROGRAM has not defined prompt reporting of

deviations.

A letter sent to the State dated May 10, 1994, identified areas in

which the Wyoming PROGRAM was deficient and the corrective actions that

were to be completed either prior to interim PROGRAM approval or prior

to full PROGRAM approval. In a letter dated June 7, 1994, which

included an Attorney General's opinion dated June 6, 1994, the State

addressed all EPA issues that would have prevented EPA from issuing

interim approval of the Wyoming PROGRAM.

The State has not addressed those issues that require corrective

action prior to full PROGRAM approval. Areas in which the Wyoming

PROGRAM is deficient and require corrective action prior to full

PROGRAM approval are as follows: (1) Section 30 states that research

and development (R&D) operations will be considered as separate and

discrete stationary sources when determining whether such operations

are subject to the PROGRAM. If an R&D facility is a support facility

(co-located with a separate source, under common ownership or control

and 50% of the output of the support unit is used by the main

activity), the emissions from this R&D facility must be included, along

with all other emissions at the source, to determine applicability to

section 30. Section 30 must be revised to assure R&D support facilities

are included in major source determinations. (2) Language in the

Wyoming Environmental Quality Act (WEQA) appears to reduce the penalty

for civil violations committed by surface coal mine operations from a

maximum of ten thousand dollars per day to five thousand dollars per

day. This language needs to be changed in the WEQA or clarified in an

Attorney General's opinion to indicate that the five thousand dollar

penalty relates only to activities subject to the Surface Mining

Control and Reclamation Act. (3) The WEQA bases individual and

corporate liability on knowing and willful violations of the WEQA. This

statute needs to be revised to include language that provides strict

liability for corporate officers, directors or agents in civil actions.

(4) The WEQA does not provide for a per day, per violation penalty for

false statements or tampering with monitoring devices, only a fine of

ten thousand dollars or imprisonment for one year in county jail, or

both. The statute needs to be changed to include a per day, per

violation penalty. (5) Section 30 requires insignificant activities to

be listed in permit applications, but does not require that applicable

requirements that might apply to such activities be identified. The

general provision of 40 CFR 70.5(c) ensures that information concerning

applicable requirements will be included in the application. Section 30

must be revised to include language similar to the general provision in

40 CFR 70.5(c), or an AG's opinion must clarify that the State will

ensure that all applicable requirements are identified for any

insignificant activities. (6) The provision in section 30 regarding

general permits is inconsistent with Sec. 70.6(d) because they do not

require notice and an opportunity for public participation consistent

with Sec. 70.7(h). This provision must be revised or clarified in an

Attorney General's Opinion. (7) It is unclear if section 30 provides

the State with authority to implement emissions trading under a permit

cap, which is required by Sec. 70.4(b)(12)(iii). The State must clarify

its authority on this issue, or revise section 30 to provide such

authority. (8) The Governor's letter submitting the Wyoming PROGRAM

states that the PROGRAM will apply to all applicable operating

stationary sources of air pollutants within the State of Wyoming ``with

the exception of those sources located on Indian lands.'' However, the

PROGRAM does not define ``Indian lands.'' The State must provide such a

definition prior to full PROGRAM approval.

Refer to the technical support document accompanying this

rulemaking for a detailed explanation of each PROGRAM deficiency and

the State's corrective actions, where provided.

3. Permit Fee Demonstration

The State of Wyoming established an initial fee for regulated air

pollutants below the presumptive minimum set in title V, section 502

and part 70, and was required to submit a detailed permit fee

demonstration as part of its PROGRAM submittal. The basis of this fee

demonstration included a workload analysis, which estimated the annual

cost of running the PROGRAM to be $1.43 million. This amount, divided

by the total actual emissions from part 70 sources, resulted in a $10

per ton fee for actual emissions of regulated air pollutants for fiscal

year 1993 (fees will not be charged on emissions exceeding 4,000 tons

per year per pollutant at a source). This fee structure is subject to a

biennial review by the Wyoming Joint Minerals, Business and Economic

Development Committee. After careful review, the State of Wyoming

determined that these fees would support the PROGRAM costs as required

by 40 CFR 70.9(a). Upon review of this demonstration, the EPA noted the

following concern: The WEQA gives the State the authority to assess and

collect annual permit fees in an amount sufficient to cover all

reasonable direct and indirect costs of the PROGRAM for a two year

period of time. The Wyoming Legislature must authorize an increase in

such fees. If such an increase is not granted, and the State is not

able to fund all the costs of the PROGRAM, the EPA would be required to

disapprove or withdraw the part 70 program, impose sanctions, and

implement a Federal permitting program.

4. Provisions Implementing the Requirements of Other Titles of the Act

a. Authority and/or Commitments for section 112 Implementation.

Wyoming has demonstrated in its PROGRAM submittal adequate legal

authority to implement and enforce all section 112 requirements through

the title V permit. This legal authority is contained in Wyoming's WEQA

and in regulatory provisions defining ``applicable requirements'' by

stating that the permit must incorporate all applicable requirements.

EPA has determined that this legal authority is sufficient to allow

Wyoming to issue permits that assure compliance with all section 112

requirements.

For further rationale on this interpretation, please refer to the

Technical Support Document accompanying this rulemaking and the April

13, 1993 guidance memorandum titled ``Title V Program Approval Criteria

for Section 112 Activities,'' signed by John Seitz.

b. Implementation of 112(g) Upon Program Approval. As a condition

of approval of the part 70 PROGRAM, Wyoming is required to implement

section 112(g) of the Act from the effective date of the part 70

PROGRAM. Imposition of case-by-case determinations of a maximum

achievable control technology (MACT) under section 112(g) will require

the use of a mechanism for establishing federally enforceable

restrictions on a source-specific basis. The EPA is proposing to

approve Wyoming's preconstruction permitting program found in section

24, under the authority of title V and part 70 solely for the purpose

of implementing section 112(g) during the transition period between

title V approval and adoption of a State rule implementing EPA's

section 112(g) regulations. EPA believes this approval is necessary so

that Wyoming has a mechanism in place to establish federally

enforceable restrictions for section 112(g) purposes from the date of

part 70 approval. Section 112(l) provides statutory authority for

approval for the use of State air programs to implement section 112(g),

and title V and section 112(g) provide authority for this limited

approval because of the direct linkage between implementation of

section 112(g) and title V. The scope of this approval is narrowly

limited to section 112(g), and does not confer or imply approval for

purposes of any other provision under the Act. If Wyoming does not wish

to implement section 112(g) through its preconstruction permit program

and can demonstrate that an alternative means of implementing section

112(g) exists, the EPA may, in the final action approving Wyoming's

PROGRAM, approve the alternative instead. To the extent the State does

not have the authority to regulate HAPs through existing State law, the

State may disallow modifications during the transition period.

This approval is for an interim period only, until such time as the

State is able to adopt regulations consistent with any regulations

promulgated by EPA to implement section 112(g). Accordingly, EPA is

proposing to limit the duration of this approval to a reasonable time

following promulgation of section 112(g) regulations so that Wyoming,

acting expeditiously, will be able to adopt regulations consistent with

the section 112(g) regulations. The EPA is proposing here to limit the

duration of this approval to 18 months following promulgation by EPA of

section 112(g) regulations. Comment is solicited on whether 18 months

is an appropriate period considering Wyoming's procedures for adoption

of Federal regulations.

c. Program for Straight Delegation of section 112 Standards.

Requirements for approval, specified in 40 CFR 70.4(b), encompass

section 112(l)(5) requirements for approval of a program for delegation

of section 112 general provisions subpart A and standards as

promulgated by EPA as they apply to part 70 sources. Section 112(l)(5)

requires that the State's program contain adequate authorities,

adequate resources for implementation, and an expeditious compliance

schedule, which are also requirements under part 70. The State of

Wyoming acknowledges that its request for approval of a part 70 program

is also a request for approval of a program for delegation of unchanged

existing and future section 112 requirements under the authority of

section 112(l) as they apply to part 70 sources. This shall include the

most recent versions of any existing standards and all future

requirements promulgated under section 112, including the general

provisions for part 63 and all other infrastructure rules. The State

can now receive delegation of any new authority required by section 112

of the Act through the delegation process.

The radionuclide national emission standard for HAPs (NESHAP) is a

section 112 regulation and therefore, also an applicable requirement

under the State PROGRAM. Sources which are currently defined as part 70

sources and emit radionuclides are subject to Federal radionuclide

standards. Currently the State of Wyoming has no such sources. However,

sources which are not currently part 70 sources may be defined as major

sources under forthcoming Federal radionuclide regulations. The EPA

will work with the State in the development of its radionuclide program

to ensure that permits are issued in a timely manner.

The State also has the option at any time to request, under section

112(l) of the Act, delegation of section 112 requirements in the form

of State regulations which the State demonstrates are equivalent to the

corresponding section 112 provisions promulgated by EPA. At this time,

the State plans to use the mechanism of case-by-case rulemaking to

adopt unchanged Federal section 112 requirements into its regulations.

Therefore, the EPA is also proposing to grant approval under

section 112(l)(5) and 40 CFR 63.91 of the State's program for receiving

delegation of section 112 standards that are unchanged from the Federal

standards as promulgated.

d. Program for Implementing Title IV of the Act. Wyoming's PROGRAM

contains adequate authority to issue permits which reflect the

requirements of title IV of the Act, and commits to adopt the rules and

requirements promulgated by EPA to implement an acid rain program

through the title V permit.

B. Options for Approval/Disapproval and Implications

The EPA is promulgating interim approval to the operating permit

program submitted by the State of Wyoming on November 19, 1993. The

State must make the changes discussed above to receive full approval.

Evidence of these statutory and regulatory revisions must be submitted

to EPA within 18 months of EPA's interim approval of the Wyoming

PROGRAM.

At the time of this document, the State had not made an affirmative

showing of legal authority to regulate sources within the exterior

boundaries of Indian Reservations in Wyoming under the Act. Therefore,

interim approval of the Wyoming PROGRAM will not extend to lands within

the exterior boundaries of Indian Reservations. Until the State makes

such a showing, part 70 sources within the exterior boundaries of

Indian Reservations in Wyoming will be subject to the Federal operating

permit program to be promulgated in 40 CFR part 71, or subject to the

program of any Tribe delegated such authority under section 301(d) of

the Act. The EPA anticipates promulgating an Indian Air Regulation, at

which time how the State defines Indian lands could become an approval

issue.

This interim approval, which may not be renewed, extends for a

period of up to two years. During the interim approval period, the

State is protected from sanctions for failure to have a program, and

EPA is not obligated to promulgate a Federal permit program in the

State. Permits issued under a program with interim approval have full

standing with respect to part 70, and the one year time period for

submittal of permit applications by subject sources begins upon interim

approval, as does the three year time period for processing the initial

permit applications.

Requirements for approval, specified in 40 CFR 70.4(b), encompass

section 112(l)(5) requirements for approval of a program for delegation

of section 112 standards as promulgated by EPA as they apply to part 70

sources. Section 112(l)(5) requires that the State's program contain

adequate authorities, adequate resources for implementation, and an

expeditious compliance schedule, which are also requirements under part

70. Therefore, the EPA is also proposing to grant approval under

section 112(l)(5) and 40 CFR 63.91 of the State's program for receiving

delegation of section 112 standards that are unchanged from Federal

standards as promulgated. This program for delegations only applies to

sources covered by the part 70 program.

III. Administrative Requirements

A. Request for Public Comments

The EPA is requesting comments on all aspects of this direct final

rule. Copies of the State's submittal and other information relied upon

for the development of this rule are contained in a docket maintained

at the EPA Regional Office. The docket is an organized and complete

file of all the information submitted to, or otherwise considered by,

EPA in the review of the PROGRAM and development of this rule. The

principal purposes of the docket are:

(1) To allow interested parties a means to identify and locate

documents so that they can effectively participate in the rulemaking

process; and

(2) To serve as the record in case of judicial review. The EPA will

consider any comments received by October 24, 1994.

B. Executive Order 12866

The Office of Management and Budget has exempted this action from

Executive Order 12866 review.

C. Regulatory Flexibility Act

The EPA's actions under section 502 of the Act do not create any

new requirements, but simply address operating permit programs

submitted to satisfy the requirements of 40 CFR part 70. Because this

action does not impose any new requirements, it does not have a

significant impact on a substantial number of small entities.

List of Subjects in 40 CFR Part 70

Environmental protection, Administrative practice and procedure,

Air pollution control, Intergovernmental relations, Operating permits,

Reporting and recordkeeping requirements.

Authority: 42 U.S.C. 7401-7671q.

Dated: September 14, 1994.

Kerrigan Clough,

Acting Regional Administrator.

[FR Doc. 94-23599 Filed 9-22-94; 8:45 am]

BILLING CODE 6560-50-F