Clean Air Act Approval and Promulgation of New Source Review Implementation Plan for Wyoming

DEPARTMENT OF VETERANS AFFAIRS

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[WY6-1-6245a; AD-FRL-5104-1]

Clean Air Act Approval and Promulgation of New Source Review

Implementation Plan for Wyoming

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is fully approving revisions to the State

Implementation Plan (SIP) submitted by the State of Wyoming for the

purpose of meeting requirements of the Clean Air Act (Act), as amended

in 1990, with regard to New Source Review (NSR) in areas that have not

attained the National ambient air quality standards (NAAQS). The

revision to the implementation plan was submitted by the State on

November 12, 1993 to satisfy certain Federal requirements for an

approvable non-attainment NSR SIP for Wyoming. Also in this document,

EPA is approving other minor revisions to the State's NSR rules which

were included in the State's November 12, 1993 submittal.

DATES: This direct final rule is effective January 30, 1995 unless

notice is received by December 29, 1994 that someone wishes to submit

adverse comments. If the effective date is delayed, timely notice will

be published in the Federal Register.

ADDRESSES: Comments should be addressed to Vicki Stamper, 8ART-AP, at

the EPA Regional Office listed.

Copies of the State's submittal and other information are available

for inspection during normal business hours at the following location:

Environmental Protection Agency, Region VIII, Air Programs Branch, 999

18th Street, suite 500, Denver, Colorado 80202-2466; and Air Quality

Division, Department of Environmental Quality, Herschler Building, 4th

floor, 122 West 25th Street, Cheyenne, Wyoming, 82002.

FOR FURTHER INFORMATION CONTACT: Vicki Stamper, Environmental

Protection Agency, Region VIII, Air Programs Branch, 999 18th Street,

suite 500, Denver, Colorado, 80202-2466, (303) 293-1765.

SUPPLEMENTARY INFORMATION:

I. Background

The air quality planning requirements for non-attainment new source

review are set out in part D of title I of the Act. The EPA has issued

a ``General Preamble'' describing EPA's preliminary views on how EPA

intends to review SIPs and SIP revisions submitted under part D,

including those State submittals containing non-attainment area NSR SIP

requirements (see 57 FR 13498 (April 16, 1992) and 57 FR 18070 (April

28, 1992)). Because EPA is describing its interpretations here only in

broad terms, the reader should refer to the General Preamble for a more

detailed discussion of the interpretations of part D advanced in this

proposal and the supporting rationale.

EPA is currently developing a proposed rule to implement the

changes under the 1990 Amendments in the new source review provisions

in parts C and D of title I of the Act. The Agency anticipates that the

proposed rule will be published for public comment in late 1994. If EPA

has not taken final action on States' NSR submittals by that time, EPA

will refer to the proposed rule as the most authoritative guidance

available regarding the approvability of the submittals. EPA expects to

take final action to promulgate a rule to implement the parts C and D

changes sometime during 1994/1995. Upon promulgation of those

regulations, EPA will review those NSR SIP submittals on which it has

taken final action to determine whether additional SIP revisions are

necessary.

The State of Wyoming only has one non-attainment area. It is the

City of Sheridan, which is designated as a moderate PM10 non-

attainment area. The non-attainment NSR provisions applicable to

moderate PM10 non-attainment areas are found in sections 173 and

189(e) of the Act. In general, section 173 allows permits to be issued

for the construction or modification of major stationary sources

proposing to locate in non-attainment areas only if the following

conditions are met: (1) The new or modified major stationary source has

obtained emission offsets from the same or other sources in the region

which provide for reasonable further progress towards attainment of the

NAAQS; (2) the new or modified major stationary source must comply with

the lowest achievable emission rate; (3) the owner of the proposed new

or modified major stationary source has demonstrated that all other

sources in the State owned, operated, or controlled by the owner of the

proposed source are in compliance, or on a schedule for compliance,

with all applicable emission limitations and standards under the Act;

(4) the EPA Administrator has not determined that the applicable SIP is

not being adequately implemented for the non-attainment area in which

the proposed source is to be constructed or modified; and (5) an

alternative siting analysis has been prepared which demonstrates that

the benefits of the proposed source significantly outweigh the

environmental and social costs imposed as a result of the proposed

source's location, construction, or modification.

Section 302(j) of the Act sets the threshold for defining a major

stationary source at 100 tons per year, and States' non-attainment NSR

rules must reflect this major stationary source threshold, unless a

more stringent threshold is required in subparts 2-4 of part D of the

Act (which includes specific provisions for ozone, carbon monoxide, and

PM10 non-attainment areas). For moderate PM10 non-attainment

areas, there is not a more stringent major stationary source threshold

and, thus, State non-attainment NSR rules must comply with the 100 tons

per year threshold of the section 302(j) definition.

The only additional requirements of subpart 4 of part D of the Act

required for moderate PM10 non-attainment areas are those of

section 189(e) of the Act. Section 189(e) provides that the control

requirements applicable to new and modified major stationary sources of

PM10 also apply to new and modified major stationary sources of

PM10 precursors, unless the Administrator finds that such sources

do not contribute significantly to PM10 levels which exceed the

standards in the area. On June 23, 1994, EPA announced its final

determination that sources of PM10 precursors do not contribute

significantly to PM10 exceedances in the Sheridan PM10 non-

attainment area (59 FR 32361). Consequently, the requirements of

section 189(e) do not apply to the Sheridan PM10 non-attainment

area.

States with moderate PM10 non-attainment areas were required

to submit NSR rules meeting the general requirements discussed above

and any additional requirements of subpart 4 of part D by June 30,

1992.

In the August 28, 1989 State submittal of the moderate PM10

non-attainment area SIP for Sheridan, it was stated that section 21 of

the State's regulations prohibited the construction or modification of

major stationary sources in non-attainment areas by prohibiting the

construction or modification of sources which would have a significant

ambient impact on air quality in the non-attainment area. However,

after further review of the State's regulation, EPA determined that the

State's regulation did not provide adequate assurance that no new or

modified major stationary source would be able to construct in a non-

attainment area. In a March 19, 1993 letter, EPA notified the State of

this determination and provided the State with two options for meeting

the Federal NSR permitting requirements. Either the State couldimpose a

construction ban by adopting the Federal definitions of ``major

stationary source'' and ``major modification'' in 40 CFR

51.165(a)(1)(iv)and (a)(1)(v) and prohibiting the construction of

sources meeting those definitions in the Sheridan PM10 non-

attainment area, OR the State could adopt a NSR permitting program

meeting the requirements of 40 CFR 51.165 as well as the new

requirements in section 173 of the Act. The State chose the first

option.

On September 16, 1993, the State of Wyoming adopted revisions to

section 21 of its regulations which prohibit the construction or

modification of major stationary sources of PM10 in the Sheridan

PM10 non-attainment area. The State also adopted other minor

revisions to its NSR permitting regulations in section 21. The Governor

subsequently submitted these revisions for approval in the SIP on

November 12, 1993.

In this rulemaking action on the Wyoming non-attainment NSR SIP

submittal, EPA is applying its interpretations taking into

consideration the specific factual issues presented.

II. State Submission

Section 110(k) of the Act sets out provisions governing EPA's

review of SIP submittals (see 57 FR 13565-13566).

A. Procedural Background

The Act requires States to observe certain procedural requirements

in developing implementation plans and plan revisions for submission to

EPA. Section 110(a)(2) of the Act provides that each implementation

plan submitted by a State must be adopted after reasonable notice and

public hearing. Section 110(1) of the Act similarly provides that each

revision to an implementation plan submitted by a State under the Act

must be adopted by such State after reasonable notice and public

hearing.

The EPA also must determine whether a submittal is complete and

therefore warrants further EPA review and action (see section 110(k)(1)

and 57 FR 13565, April 16, 1992). The EPA's completeness criteria for

SIP submittals are set out at 40 CFR part 51, appendix V. The EPA

attempts to make completeness determinations within 60 days of

receiving a submission. However, a submittal is deemed complete by

operation of law under section 110(k)(1)(B) if a completeness

determination is not made by EPA within 6 months after receipt of the

submission.

The State of Wyoming held a public hearing on July 22, 1993 to

entertain public comment on the new source review implementation plan.

Following the public hearing, the plan was adopted by the Environmental

Quality Council on September 16, 1993, became effective on October 26,

1993, and was submitted to EPA on November 12, 1993 as a revision to

the SIP.

The SIP revision was reviewed by EPA to determine completeness

shortly after its submittal, in accordance with the completeness

criteria referenced above. The submittal was found to be complete, and

a letter dated January 7, 1994 was forwarded to the Governor indicating

the completeness of the submittal and the next steps to be taken in the

review process. In this action, EPA approves the State of Wyoming's

non-attainment new source review SIP submittal.

B. Evaluation of State Submittal

On November 12, 1993, the Governor of Wyoming submitted for EPA

approval revisions to the SIP for Air Quality consisting of revisions

to section 21 of the Wyoming Air Quality Standards and Regulations

(WAQSR), Permit requirements for construction, modification and

operation. The revisions were designed to accomplish the following

purposes: (a) Revise the existing permit requirements for operating

permits to properly interface with the new section 30, Operating

Permits regulation; (b) provide for collection of fees to cover the

cost of reviewing and issuing permits under section 21; and (c) provide

for a prohibition of construction or modification of major sources of

PM10 in the City of Sheridan PM10 non-attainment area until

such time as the area is designated attainment for PM10. These are

discussed more fully in the following paragraphs:

(a) Section 21(c)(ii)(B) prohibits the construction or modification

of major stationary sources of PM10 within the City of Sheridan

PM10 non-attainment area until such time as the area is

redesignated to attainment. This was submitted to satisfy the NSR

requirements for the State's PM10 non attainment area, which were

required to be submitted by June 30, 1992.

(b) In order to make the regulations consistent with the section 30

Operating Permit regulations and to integrate section 30 into existing

air quality programs, the State revised sections 21(a)(ii),(iii), and

(v), and 21(o). These sections clarify the difference between section

21 permit requirements, and the title V permit requirements in section

30, and imposes fees for section 21 permitting actions. EPA has

reviewed the provisions in section 21(c)(ii)(B) and believes that the

State regulation will effectively prohibit the construction or

modification of major stationary sources of PM10 in the Sheridan

PM10 nonattainment area. Because the State has elected to adopt a

construction ban rather than adopting nonattainment NSR permitting

regulations for new or modified major sources in the Sheridan PM10

nonattainment, EPA believes the State has adequately met the

nonattainment NSR requirements of part D of the Act by adopting more

stringent provisions. In addition, EPA has reviewed the other revisions

to section 21 and believes they provide for consistency with the

corresponding Federal regulations in 40 CFR part 51 and clarity within

the State's regulations. EPA is therefore approving the revisions to

Wyoming's NSR regulations.

III. Implications of This Action

The EPA is approving the revisions to the Wyoming SIP submitted by

the State of Wyoming on November 12, 1993, which include revisions to

section 21 of the WAQSR pertaining to construction permit requirements.

The State of Wyoming has submitted a complete plan which meets the NSR

requirements of part D of the Act. EPA is also approving other minor

revisions to section 21, which were included in the November 12, 1993

submittal.

The EPA is publishing this action without prior proposal because

the Agency views this as a noncontroversial amendment and anticipates

no adverse comments. However, in a separate document in this Federal

Register publication, the EPA is proposing to approve the SIP revision

should adverse or critical comments be filed. Under the procedures

established in the May 10, 1994 Federal Register (59 FR 24054), this

action will be effective January 30, 1995 unless, by December 29, 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 on

this action. 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 January 30, 1995.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any State Implementation Plan. Each request for revision to

any State Implementation Plan shall be considered separately in light

of specific technical, economic, and environmental factors and in

relation to relevant statutory and regulatory requirements.

The OMB has exempted these actions from review under Executive

Order 12866.

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis addressing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively EPA may certify that the rule will not have a significant

economic impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over population of less than

50,000.

SIP approvals under section 110 and subchapter I, part D of the

Clean Air Act do not create any new requirements, but simply approve

requirements that the State is already imposing. Therefore, because the

Federal SIP-approval does not impose any new requirements, I certify

that it does not have a significant impact on small entities affected.

Moreover, due to the nature of the Federal-State relationship under the

Act, preparation of a regulatory flexibility analysis would constitute

Federal inquiry into the economic reasonableness of State action. The

Clean Air Act forbids EPA to base its action concerning SIP's on such

grounds. Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct.

1976); 42 U.S.C. 7410(a)(2).

Under section 307(b)(1) of the Act, petitions for judicial review

of this action must be filed in the United States Court of Appeals for

the appropriate circuit by January 30, 1995. Filing a petition for

reconsideration by the Administrator of this final rule does not affect

the finality of this rule 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 section 307(b)(2)).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by

reference, Intergovernment relations, Particulate matter, Reporting and

recordkeeping requirements.

Dated: September 26, 1994.

Jack W. McGraw,

Acting Regional Administrator.

Part 52, chapter I, title 40 of the Code of Federal Regulations is

amended as follows:

PART 52--[AMENDED]

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

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

Subpart ZZ--Wyoming

2. Section 52.2620 is amended by adding paragraph (c)(25) to read

as follows:

Sec. 52.2620 Identification of plan.

* * * * *

(c) * * *

(25) On November 12, 1993, the Governor of Wyoming submitted

revisions to the Wyoming State Implementation Plan (SIP). Specifically,

the State submitted revisions to the Wyoming Air Quality Standards and

Regulations (WAQSR), section 21 ``Permit requirements for construction,

modification and operation.'' Among other things, these revisions were

made to address the non-attainment New Source Review (NSR) provisions

of part D of the Act for PM10 nonattainment areas, which were due

to EPA on June 30, 1992.

(i) Incorporation by reference.

(A) The following subsections of section 21 of the Wyoming Air

Quality Standards and Regulations ``Permit requirements for

construction, modification and operation,'' adopted on September 16,

1993 and effective October 26, 1993: subsections (a)(ii), (a)(iii),

(a)(v), (c)(ii)(B), (k)(vii) and (o).

(ii) Additional material.

(A) Letter from Mary A. Throne, Assistant Attorney General, to the

Governor of Wyoming, dated October 1, 1993, documenting the necessary

legal authority under state law to adopt and implement the revised

regulation.

[FR Doc. 94-29207 Filed 11-28-94; 8:45 am]

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