00-32239. Clean Air Act Approval and Promulgation of State Implementation Plan; Wyoming; Revisions to Air Pollution Regulations

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

The EPA partially approves and partially disapproves revisions to the State Implementation Plan (SIP) submitted by the Governor of Wyoming on May 21, 1999. The submittal incorporates revisions to the following sections of the Wyoming Air Quality Standards and Regulations (WAQSR): Section 2 Definitions, Section 4 Sulfur oxides, Section 5 Sulfuric acid mist, Section 8 Ozone, Section 9 Volatile organic compounds, Section 10 Nitrogen oxides, Section 14 Control of particulate emissions, and Section 21 Permit requirements for construction, modification and operation. We partially approve these SIP revisions because they are consistent with Federal requirements. We are also partially disapproving the provisions of the State submittal that allow the Administrator of the Wyoming Air Quality Division (WAQD) to approve alternative test methods to those required in the SIP, (in sections 2, 4, 5, 10, and 14 of the WAQSR) because such provisions are inconsistent with section 110(i) of the Clean Air Act (Act) and the requirement that SIP provisions can only be modified through revisions to the SIP and must be approved by EPA. We are taking this action under section 110 of the Act.

DATES:

This rule is effective on February 20, 2001 without further notice, unless we receive adverse comment by January 22, 2001. If we receive adverse comments, we will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.

ADDRESSES:

You should mail your written comments to Richard R. Long, Director, Air and Radiation Program, Mailcode 8P-AR, Environmental Protection Agency, Region VIII, 999 18th Street, Suite 300, Denver, Colorado, 80202. 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 300, Denver, Colorado, 80202-2466. Copies of the Incorporation by Reference material are available at the Air and Radiation Docket (6102), Environmental Protection Agency, 401 M Street, SW, Washington, DC 20460. Copies of the State documents relevant to this action are available for public inspection at the Air Quality Division, Department of Environmental Quality, 122 West 25th Street, Cheyenne, Wyoming, 82002.

FOR FURTHER INFORMATION CONTACT:

Kerri Fiedler, EPA Region VIII, [phone].

SUPPLEMENTARY INFORMATION:

Throughout this document, wherever “we”, “our”, or “us” is used, we mean EPA.

Table of Contents

I. Summary of EPA's Actions

II. Evaluation of the State's Submittal

A. Section 2 Definitions

B. Section 4 Sulfur oxides

C. Section 5 Sulfuric acid mist

D. Section 8 Ozone

E. Section 9 Volatile organic compounds

F. Section 10 Nitrogen oxides

G. Section 14 Control of particulate emissions

H. Section 21 Permit requirements for construction, modification, and operation

III. Final Action

IV. Administrative Requirements

A. Executive Order 12866

B. Executive Order 13045

C. Executive Order 13084

D. Executive Order 13132

E. Regulatory Flexibility

F. Unfunded Mandates

G. Submission to Congress and the Comptroller General

H. National Technology Transfer and Advancement Act

I. Petitions for Judicial Review

I. Summary of EPA's Actions

We are partially approving and partially disapproving revisions to the SIP submitted by the Governor of Wyoming on May 21, 1999. Specifically, we are partially approving and partially disapproving the following sections of the WAQSR: Section 2 Definitions, Section 4 Sulfur oxides, Section 5 Sulfuric acid mist, Section 8 Ozone, Section 9 Volatile organic compounds, Section 10 Nitrogen oxides, Section 14 Control of particulate emissions, and Section 21 Permit requirements for construction, modification and operation. Revisions to sections 2, 4, 5, and 14 represent minor changes to correct cross references. Revisions to the ozone section were designed to comply with revisions to the national 8-hour primary and secondary ambient air quality standards for ozone. Section 9 was revised to remove outdated regulations and clarify requirements for flaring of waste gas. Section 10 was changed to clarify references to combustion equipment. Permitting section 21 was revised to reference additional permitting requirements in the hazardous air pollutant regulations.

We are publishing this rule without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the “Proposed Rules” section of today's Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective February 20, 2001 without further notice unless the Agency receives adverse comments by January 22, 2001.

If we receive such comments, then we will publish a timely withdrawal of the direct final rule 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. We will not institute a second comment period on this rule. Any parties interested in commenting on this rule should do so at this time. If no such comments are received, the public is advised that this rule will be effective on February 20, 2001, and no further action will be taken on the proposed rule.

II. Evaluation of the State's Submittal

Section 110(k) of the Act addresses our actions on submissions of SIP revisions. The Act also requires States to observe certain procedures in developing SIP revisions. Section 110(a)(2) of the Act requires that each SIP revision be adopted after reasonable notice and public hearing. We have evaluated the State's submission and determined that the necessary procedures were followed. We also must determine whether a submittal is complete and therefore warrants further review and action (see section 110(k)(1) of the Act). Our completeness criteria for SIP submittals can be found in 40 CFR part 51 appendix V. We attempt to determine completeness within 60 days of receiving a submissions. However, the law considers a submittal complete if we do not determine completeness within six months after we receive it. This submission became complete by operation of law on November 21, 1999 in accordance with section 110(k)(1)(B) of the Act.

A. Section 2 Definitions

The State revised the definition of “particulate matter emissions” in section 2(a)(xxx)(B) of the WAQSR. This revision is a minor change to correct applicable reference methods. This revision is partially approved and partially disapproved, however, because the provision allows the use of an equivalent or alternative method to be approved by the Administrator of the WAQD. In an August 19, 1998 letter to the WAQD, we raised concerns about provisions in the WAQSR where the WAQD has the discretion to approve the use of alternative or equivalent test methods in place of those required in the SIP. Such discretionary authority for the State to change test methods that are included in the SIP, without obtaining prior EPA approval is not consistent with section 110 of the Act. These “director's discretion” provisions essentially allow for a variance from SIP requirements, which is not allowed under section 110(i) of the Act. In our August 19, 1998 letter, we identified the sections in the WAQSR which contain these director's discretion provisions, and informed the State that the provisions needed to be revised to require EPA approval of any alternative or equivalent test methods. In a September 9, 1998 letter responding to our comments, the WAQD committed to address our concerns through revisions to these rules in the near future. In fact, the State recently revised section 2(a)(xxx)(B) of the WAQSR to read, “* * * or an equivalent or alternative method approved by the EPA Administrator.” We anticipate that the revision will be submitted as a SIP revision in the near future. However, until these provisions are revised, we believe it is necessary to disapprove the various “director's discretion” provisions, to ensure that any alternatives to the test methods required in the SIP are approved by EPA.

B. Section 4 Sulfur Oxides

The State made a minor revision to section 4(h) of the WAQSR to change a reference for the method to measure sulfur oxide emissions. As discussed above, this revision also is partially approved and partially disapproved. This provision allows the Administrator of the WAQD to approve the use of an equivalent test method. For the reasons discussed in section II.B above, we are disapproving the director's discretion provision in section 4(h) of the WAQSR, because it is inconsistent with section 110(i) of the Act.

C. Section 5 Sulfuric Acid Mist

The State made a minor revision to section 5 of the WAQSR to change the reference for the method to measure sulfuric acid mist. This revision is also partially approved and partially disapproved. This provision allows the Administrator of the WAQD to approve the use of an equivalent method. This provision for director's discretion has since been revised to require EPA approval of alternative test methods, and the new revision became effective at the State level on October 29, 1999. However, this revision has not yet been submitted to us for approval into the SIP. For the reasons discussed in section II.B above, we are partially disapproving the director's discretion provision in section 5, because it is inconsistent with section 110(i) of the Act.

D. Section 8 Ozone

The State revised section 8 of the WAQSR by adding the 8-hour primary and secondary ozone National Ambient Air Quality Standards (NAAQS). We are approving this revision as it is consistent with the Federal 8-hour ozone NAAQS, as promulgated in the Federal Register on July 18, 1997 (see 62 FR 38856), and also addresses the requirements of 40 CFR part 50 (Appendices D and I) and 40 CFR part 53.

On July 18, 1997, EPA promulgated the new 8-hour ozone NAAQS (see 62 FR 38856). With the promulgation of the new 8-hour standard, and under a Presidential directive dated July 16, 1997, EPA also set into motion the process to revoke the 1-hour standard for areas in the nation that were attaining that standard. The 1-hour ozone standard was revoked for Wyoming on June 5, 1998 (see 63 FR 31014). A May 14, 1999 ruling by the U. S. Court of Appeals for the D.C. Circuit, however undermined the basis for EPA's June 5, 1998 revocation of the 1-hour ozone standard. As the D.C. Circuit Court ruled that EPA could not enforce the new 8-hour standard, and it may be some time before the Agency's appeal to the Supreme Court is decided, EPA rescinded its findings that the 1-hour standard no longer applied in certain areas and reinstated the 1-hour ozone standard for all areas of the nation on July 20, 2000 (see 65 FR 45182). The effective date of the July 20, 2000 reinstatement for Wyoming is October 18, 2000.

E. Section 9 Volatile Organic Compounds

The State revised section 9 of the WAQSR to delete a provision regulating hydrocarbon emissions, because the State determined it was unenforceable and replaced it with a provision to control volatile organic compound (VOC) emissions through the application of Best Available Control Technology (BACT) in accordance with Section 21 Permit requirements for construction, modification, and operation. In our comments on this revision, during the State's public hearing, we expressed concern that the State may be allowing existing sources to relax emission limits as a result of this rule change. However, in a June 23, 2000 letter, the State explained that any existing source that had been regulated under the previous version of this rule would not be able to remove emission controls without triggering the need for a permit to modify, which would require application of BACT. Thus, the State asserts that the new version of this rule is more enforceable and is likely to result in greater control of VOC emissions than the previous rule. We concur with the State and are therefore approving the revision.

F. Section 10 Nitrogen Oxides

The State revised sections 10(b), 10(b)(vii), 10(b)(viii), and 10(b)(ix) of the WAQSR. These revisions are minor editorial corrections that we are partially approving and partially disapproving. Section 10(b) contains a “director's discretion” provision that allows the Administrator of the WAQD to approve the use of an equivalent test method to measure nitrogen oxide emissions. For the reasons discussed in section II.B above, we are partially disapproving the director's discretion provision in section 10(b), because it is inconsistent with section 110(i) of the Act.

G. Section 14 Control of Particulate Emissions

The State made a minor revision to a reference to the method for measuring particulate matter emissions in section 14(h)(iv) of the WAQSR. This revision is partially approved and partially disapproved because it also contains a director's discretion provision that allows the Administrator of the WAQD to approve the use of variations to the test method. For the reasons discussed in section II.B above, we are partially disapproving the director's discretion provision in section 14(h)(iv), because it is inconsistent with section 110(i) of the Act.

H. Section 21 Permit Requirements for Construction, Modification and Operation

The State revised section 21(a)(vi) and 21(h) to reference additional permitting requirements in the hazardous air pollutant regulations. Section 21(a)(vi) was revised to include requirements for submitting permit applications under National Emission Standards for Hazardous Air Pollutant Standards and section 21(h) adds an expiration date for permits containing a case-by case Maximum Available Control Technology determination. We have determined both revisions are acceptable.

III. Final Action

In this action, we are granting partial approval and partial disapproval of revisions to sections 2, 4, 5, 8, 9, 10, 14, and 21 of the WAQSR submitted as a SIP revision by the Governor of Wyoming on May 21, 1999. We are publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the “Proposed Rules” section of today's Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the SIP revisions if adverse comments are filed. This rule will be effective February 20, 2001 without further notice unless the Agency receives adverse comments by January 22, 2001. If we receive adverse comments, then we will publish a timely withdrawal of the direct final rule, 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. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. If no such comments are received, the public is advised that this rule will be effective on February 20, 2001, and no further action will be taken on the proposed rule. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.

IV. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”

B. 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 Executive Order 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 Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks.

C. Executive Order 13084

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly affects 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, Executive Order 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 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 Executive Order 13084 do not apply to this rule.

D. Executive Order 13132

Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612 (Federalism) and 12875 (Enhancing the Intergovernmental Partnership). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that 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.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

This rule will 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, because it merely approves 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. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

E. Regulatory Flexibility

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 partial approval rule will not have a significant impact on a substantial number of small entities because 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 create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities. Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

This final partial disapproval rule will not have a significant impact on a substantial number of small entities because this partial disapproval only affects a limited number of sources. Therefore, I certify that this action will not have a significant economic impact on a substantial number of small entities. Furthermore, as explained in this notice, the request does not meet the requirements of the Clean Air Act and EPA cannot approve the request. EPA has no option but to partially disapprove the submittal.

The partial approval and partial disapproval will not affect an existing state requirements applicable to small entities. Federal disapproval of a state submittal does not affect its state-enforceability.

F. Unfunded Mandates

Under sections 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 partial 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 partially 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 the 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. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective February 20, 2001 unless EPA receives adverse written comments by January 22, 2001.

H. National Technology Transfer and Advancement Act

Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.

The EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS.

I. 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 February 20, 2001. 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
• Hydrocarbons
• Incorporation by reference
• Intergovernmental relations
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides
• Volatile organic compounds

Dated: October 6, 2000.

Jack W. McGraw,

Acting Regional Administrator, Region VIII.

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 et seq.

Subpart ZZ—Wyoming

2. Section 52.2620 is amended by adding paragraph (c)(29) to read as follows:

§ 52.2620

Identification of plan.

* * * * *

(c) * * *

(29) The Governor of Wyoming submitted revisions to sections 2, 4, 5, 8, 9, 10, 14, and 21 of the Wyoming Air Quality Standards and Regulations (WAQSR) on May 21, 1999.

(i) Incorporation by reference.

(A) Revisions to the WAQSR, section 2 Definitions, subsection 2(a)(xxx)(B) excluding the words “or an equivalent or alternative method approved by the Administrator,” effective October 15, 1998.

(B) Revisions to the WAQSR, section 4 Sulfur oxides, subsection 4(h) excluding the words “or an equivalent method,” effective October 15, 1998.

(C) Revisions to the WAQSR, section 5 Sulfuric acid mist excluding the words “or an equivalent method,” effective October 15, 1998.

(D) Revisions to the WAQSR, section 8 Ozone, effective October 15, 1998.

(E) Revisions to the WAQSR, section 9 Volatile organic compounds, effective October 15, 1998.

(F) Revisions to the WAQSR, section 10 Nitrogen oxides, subsections 10(b), 10(b)(vii), 10(b)(viii), and 10(b)(ix), excluding the words “or by an equivalent method” in subsection 10(b), effective October 15, 1998.

(G) Revisions to the WAQSR, section 14 Control of particulate emissions, subsection 14(h)(iv) excluding the sentence, “Provided that the Administrator may require that variations to said methods be included or that entirely different methods be utilized if he determines that such variations or different methods are necessary in order for the test data to reflect the actual emission rate of particulate matter,” effective October 15, 1998.

(H) Revisions to the WAQSR, section 21 Permit requirements for construction, modification and operation, subsections 21(a)(vi) and 21(h), effective October 15, 1998.

(ii) Additional material.

(A) September 1, 1998 letter from Dan Olson, Administrator, Wyoming Air Quality Division, to Richard R. Long, Director, Air and Radiation Program, EPA Region 8.

(B) June 23, 2000 letter from Dan Olson, Administrator, Wyoming Air Quality Division, to Richard R. Long, Program Manager, Air and Radiation, EPA Region VIII.