[Federal Register Volume 64, Number 34 (Monday, February 22, 1999)]
[Rules and Regulations]
[Pages 8523-8526]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-4141]
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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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