[Federal Register Volume 59, Number 228 (Tuesday, November 29, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-29207]
[[Page Unknown]]
[Federal Register: November 29, 1994]
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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]
BILLING CODE 6560-50-F
