Clean Air Act Full Approval of Operating Permit Program; Approval of Expansion of State Program Under Section 112(l); State of Wyoming

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[WY-001a; FRL-6234-3]

Clean Air Act Full Approval of Operating Permit Program; Approval

of Expansion of State Program Under Section 112(l); State of Wyoming

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is promulgating full approval of the Operating Permit

Program submitted by the State of Wyoming. Wyoming's operating permit

program was submitted for the purpose of meeting the federal Clean Air

Act directive that states develop, and submit to EPA, programs for

issuing operating permits to all major stationary sources and to

certain other sources within the states' jurisdiction. EPA is also

approving the expansion of Wyoming's program for receiving delegation

of section 112 standards to include non-part 70 sources.

DATES: This direct final rule is effective on April 23, 1999 without

further notice, unless EPA receives adverse comment by March 24, 1999.

If adverse comment is received, EPA will publish a timely withdrawal of

the direct final rule in the Federal Register and inform the public

that the rule did not take effect.

ADDRESSES: Written comments may be mailed to Richard R. Long, Director,

Air and Radiation Program, Mailcode 8P-AR, Environmental Protection

Agency (EPA), Region VIII, 999 18th Street, Suite 500, Denver, Colorado

80202-2466. Copies of the documents relevant to this action are

available for public inspection during normal business hours at the Air

and Radiation Program, Environmental Protection Agency, Region VIII,

999 18th Street, Suite 500, Denver, Colorado, 80202-2466. Copies of the

State documents relevant to this action are available for public

inspection at the Wyoming Department of Environmental Quality, 122 W.

25th Street, Cheyenne, WY 82002.

FOR FURTHER INFORMATION CONTACT: Patricia Reisbeck, EPA, Region 8,

(303) 312-6435.

SUPPLEMENTARY INFORMATION:

[[Page 8524]]

I. Background

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

amended (42 U.S.C. 7401 et seq.), EPA has promulgated rules that 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. Title V directs states to

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

all major stationary sources and to certain other sources.

The Act directs states to develop and submit operating permit

programs to the EPA by November 15, 1993, and requires 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 (42 U.S.C. 7661a) 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. If EPA has not fully approved a

program by two years after the November 15, 1993 date, or by the end of

an interim program, it must establish and implement a federal program.

The State of Wyoming was granted final interim approval of its program

on January 19, 1995 (see 60 FR 3766) and the program became effective

on February 21, 1995. Interim approval of the Wyoming program expires

on June 1, 2000.

II. Final Action

A. Analysis of State Submission

The Governor of Wyoming submitted an administratively complete

title V operating permit program for the State of Wyoming on November

19, 1993. This program includes state regulations at section 30 of the

Wyoming Air Quality Standards and Regulations (WAQSR). 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.

On May 10, 1994, EPA sent a letter to the State identifying 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, the

State addressed all issues necessary to receive interim approval of the

Wyoming program.

On October 15, 1997, the State submitted revisions to its operating

permit program regulations (section 30 of the WAQSR) that were

effective August 19, 1997 and on October 26, 1998, the State submitted

a supplemental Attorney General opinion clarifying the scope of the

exception from Title V application requirements for insignificant

activities. The revised program regulations adequately addressed those

issues identified in the January 19, 1995 Federal Register document as

requiring corrective action prior to full program approval. The State

also submitted evidence of proper adoption of the revisions to its

program regulations. In addition, statutory deficiencies identified by

EPA, specifically in W.S. 35-11-901, were corrected by legislative

amendments enacted during the 1995 Wyoming Legislative session that

became effective on July 1, 1995. Finally, in a separate letter, dated

July 10, 1997, the State officially requested approval under section

112(l) of the Act of its program mechanism for receiving delegation of

all existing and future section 112(d) standards applicable to non-part

70 sources of hazardous air pollutants, by incorporating by reference

the relevant EPA standards.

Areas in the Wyoming program that were identified by EPA as

deficient and the State's corrective actions for full program approval

consist of the following:

(1) Section 30(a)(ix) of the WAQSR states that research and

development (R&D) operations are considered to be separate and discrete

stationary sources for purposes of determining whether such operations

are subject to the program. However, if an R&D facility is a ``support

facility'' (i.e., co-located with another source under common ownership

or control, with 50 percent of the output of the support unit being

used by the main activity), the emissions from such an R&D facility

must be included along with all other emissions at the source to

determine applicability of section 30 of the WAQSR. Section 30(a)(ix)

of the WAQSR was revised to assure that R&D support facilities are

included in major source determinations.

(2) The Wyoming Environmental Quality Act (WEQA), W.S. 35-11-901,

reduced the penalty for civil violations by surface coal mine

operations from a maximum of ten thousand dollars per day to five

thousand dollars per day. This language was replaced at W.S. 35-11-902

to clearly indicate that the five thousand dollar penalty relates only

to activities subject to the Surface Mining Control and Reclamation

Act.

(3) The WEQA originally based individual and corporate liability on

knowing and willful violations of the WEQA. The WEQA was revised at

W.S. 35-11-901(a)(i) to provide for strict liability for corporate

officers, directors and agents in all civil actions.

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

for false statements or tampering with monitoring devices. The State

statute was revised at W.S. 35-11-901(j) and (k) to provide a per day,

per violation penalty.

(5) Originally, section 30 of the WAQSR required insignificant

activities to be listed in permit applications, but did not require

applicants to identify the applicable requirements that might apply to

such activities. The general provision of 40 CFR 70.5(c) requires that

information concerning all applicable requirements must be included in

the application. Section 30(c)(ii)(A)(III)(1) of the WAQSR was revised

to include language similar to the general provision in 40 CFR 70.5(c),

clarifying that the State will ensure that all applicable requirements

are identified for any insignificant activities. By letter dated

October 26, 1998, the Attorney General for Wyoming submitted a revised

Attorney General's opinion to further clarify that, under the revised

rule pertaining to insignificant activities, permit applications must

include ``sufficient information'' for determining the applicability of

or to impose applicable requirements on such activities.

(6) The original provision in section 30 regarding general permits

was inconsistent with 40 CFR 70.6(d), because it appeared not to

require notice and an opportunity for public participation consistent

with 40 CFR 70.7(h). Section 30(i)(ii) was revised to clarify that

public notice and comment requirements apply to the issuance of general

permits.

(7) In the Federal Register notice proposing interim approval of

the Wyoming program, EPA stated that, prior to full program approval,

the State must clarify that section 30(h)(i)(J) provides the State with

authority to implement emissions trading under a permit cap, which is

required by 40 CFR

[[Page 8525]]

70.4(b)(12)(iii), or revise section 30 to provide such authority. In a

letter dated November 16, 1994, the State clarified that it has

authority to implement emissions trading under a permit cap. EPA

concurs with the State's authority to implement this provision.

(8) The 1995 Federal Register notice of final interim approval

asked the State to provide a definition of ``Indian lands.'' The EPA

has since determined that this question of ascertaining the State's

definition of ``Indian lands'' is not required to be addressed for full

approval of the State program, because EPA's Federal Register document

granting interim approval made it clear that approval of Wyoming's

program did not extend to lands within the exterior boundaries of

Indian Reservations and thus does not extend to Indian country as

defined by 18 U.S.C. 1151. A State definition of Indian lands would not

change the geographic scope of the approved program, nor would it meet

any requirement of part 70. This decision was conveyed to the State in

a letter from EPA dated July 31, 1995.

B. Program for Straight Delegation of Section 112 Standards

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

encompass requirements under section 112(l)(5) of the Act for

delegation of 40 CFR part 63, subpart A, and section 112 standards as

promulgated by EPA. Section 112(l)(5) requires that the State's

hazardous air pollutant control program contain adequate authorities,

adequate resources for implementation, and an expeditious compliance

schedule. EPA granted approval of the State's program, under section

112(l)(5) and 40 CFR 63.91, for receiving delegation of section 112

standards that are unchanged from the Federal standards as promulgated

for part 70 sources, in the Federal Register document promulgating

final interim approval of the Wyoming program (see 60 FR 3766). Based

on the State's request, EPA is expanding this approval to include non-

part 70 sources. EPA believes this expanded approval is warranted

because State law does not differentiate between part 70 and non-part

70 sources for purposes of implementation and enforcement of section

112 standards that the State adopts. This approval would not, by

itself, delegate authority to the State to enforce specific section 112

standards, but instead would establish a basis for the State to request

and receive future delegation of authority to implement and enforce,

for non-part 70 sources, section 112 standards that the State adopts

without change.

C. Final Action

The EPA is granting full approval of the Wyoming operating permit

program and, based on a State request, is expanding its approval of the

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

delegation of section 112 standards that are unchanged from the Federal

standards, to include non-part 70 sources.

In Wyoming's part 70 program submission, the State indicated that

it is not seeking approval from EPA to administer the State's part 70

program to sources on Indian lands in Wyoming. In this document, EPA is

approving Wyoming's part 70 program for all areas within the State

except the following: lands within the exterior boundaries of Indian

Reservations (including the Wind River Indian Reservation) and any

other areas which are ``Indian Country'' within the meaning of 18

U.S.C. 1151.

The EPA is publishing this rule without prior proposal because the

State is currently implementing its part 70 program and the Agency

views this as a noncontroversial action and anticipates no adverse

comments. However, in the proposed rules section of this Federal

Register publication, EPA is publishing a separate document that will

serve as the proposal to grant full approval of the operating permit

program submitted by the State of Wyoming should adverse comments be

filed. This rule will be effective April 23, 1999 without further

notice unless the Agency receives adverse comments by March 24, 1999.

If the EPA receives such comments, then EPA will publish a timely

withdrawal in the Federal Register informing the public that the rule

will not take effect. All public comments received will then be

addressed in a subsequent final rule based on the proposed rule. The

EPA will not institute a second comment period on this action. Any

parties interested in commenting on this rule must do so at this time.

III. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget has exempted this regulatory

action from Executive Order 12866, entitled ``Regulatory Planning and

Review.''

B. Executive Order 12875

Under Executive Order 12875, EPA may not issue a regulation that is

not required by statute and that creates a mandate upon a state, local,

or tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments, or EPA consults with those governments. If EPA complies by

consulting, E.O. 12875 requires EPA to provide to the Office of

Management and Budget a description of the extent of EPA's prior

consultation with representatives of affected state, local, and tribal

governments, the nature of their concerns, copies of any written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, E.O. 12875 requires EPA to

develop an effective process permitting elected officials and other

representatives of state, local, and tribal governments ``to provide

meaningful and timely input in the development of regulatory proposals

containing significant unfunded mandates.'' Today's rule does not

create a mandate on state, local or tribal governments. The rule does

not impose any enforceable duties on these entities. Accordingly, the

requirements of section 1(a) of E.O. 12875 do not apply to this rule.

C. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is

determined to be ``economically significant'' as defined under E.O.

12866, and (2) concerns an environmental health or safety risk that EPA

has reason to believe may have a disproportionate effect on children.

If the regulatory action meets both criteria, the Agency must evaluate

the environmental health or safety effects of the planned rule on

children, and explain why the planned regulation is preferable to other

potentially effective and reasonably feasible alternatives considered

by the Agency.

This rule is not subject to E.O. 13045 because it does not involve

decisions intended to mitigate environmental health or safety risks.

D. Executive Order 13084

Under Executive Order 13084, EPA may not issue a regulation that is

not required by statute, that significantly or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments, or EPA consults with those

governments. If EPA complies by consulting, E.O. 13084 requires EPA to

provide to the Office of Management and Budget, in a separately

identified section of the preamble to the rule, a description of the

extent of EPA's prior

[[Page 8526]]

consultation with representatives of affected tribal governments, a

summary of the nature of their concerns, and a statement supporting the

need to issue the regulation. In addition, Executive Order 13084

requires EPA to develop an effective process permitting elected

officials and other representatives of Indian tribal governments ``to

provide meaningful and timely input in the development of regulatory

policies on matters that significantly or uniquely affect their

communities.'' Today's rule does not significantly or uniquely affect

the communities of Indian tribal governments. This action does not

involve or impose any requirements that affect Indian Tribes.

Accordingly, the requirements of section 3(b) of E.O. 13084 do not

apply to this rule.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements unless the agency certifies

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 small governmental

jurisdictions.

This final rule will not have a significant impact on a substantial

number of small entities because part 70 approvals under section 502 of

the Act do not create any new requirements but simply approve

requirements that the State is already imposing. Therefore, because

this approval does not create any new requirements, I certify that this

action will not have a significant economic impact on a substantial

number of small entities.

F. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

costs to state, local, or tribal governments in the aggregate; or to

the private sector, of $100 million or more. Under section 205, EPA

must select the most cost-effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not

include a Federal mandate that may result in estimated costs of $100

million or more to either state, local, or tribal governments in the

aggregate, or to the private sector. This Federal action approves pre-

existing requirements under State or local law, and imposes no new

requirements. Accordingly, no additional costs to State, local, or

tribal governments, or to the private sector, result from this action.

G. Submission to Congress and the Comptroller General

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 Congress and to the Comptroller General of the United

States. EPA will submit a report containing this rule 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. This rule is not a

``major rule'' as defined by 5 U.S.C. 804(2).

H. Petitions for Judicial Review

Under section 307(b)(1) 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 April 23, 1999. 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 70

Environmental protection, Administrative practice and procedure,

Air pollution control, Intergovernmental relations, Operating permits,

and Reporting and recordkeeping requirements.

Dated: January 28, 1999.

William P. Yellowtail,

Regional Administrator,

Region VIII.

40 CFR part 70, chapter I, title 40 of the Code of Federal

Regulations is amended as follows:

PART 70--[AMENDED]

1. The authority citation for part 70 continues to read as follows:

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

2. In appendix A to part 70 the entry for Wyoming is amended by

revising paragraph (b) to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating

Permits Programs

* * * * *

Wyoming

(b) The Wyoming Department of Environmental Quality submitted an

operating permits program on November 19, 1993; interim approval

effective on February 21, 1995; revised August 19, 1997; full approval

effective on April 23, 1999.

[FR Doc. 99-4141 Filed 2-19-99; 8:45 am]

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