E9-4794. New Source Performance Standards; Supplemental Delegation of Authority to the State of Wyoming

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Delegation of authority; technical amendment.

SUMMARY:

The Wyoming Department of Environmental Quality submitted a request for an updated delegation of authority to implement and enforce the Federal New Source Performance Standards, including one new standard not previously delegated. EPA's review of Wyoming's updated regulations determined that they contain adequate and effective procedures for the implementation and enforcement of these Federal standards. This action informs the public of the updated delegation to Wyoming.

EPA is also making a technical amendment to update the list of subparts delegated to Wyoming.

DATES:

This technical amendment is effective on March 9, 2009. The delegation of authority to Wyoming became effective on November 26, 2008.

ADDRESSES:

Copies of documents relevant to this action are available for public inspection at the Environmental Protection Agency (EPA), Region 8, Air Program, 1595 Wynkoop Street, Denver, Colorado 80202-1129. EPA requests that if at all possible, you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy of the materials. You may view the hard copy of the materials Monday through Friday, 8 a.m. to 4 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Amy Platt, EPA Region 8, at [phone], or [e-mail].

SUPPLEMENTARY INFORMATION:

For the purpose of this document, we are giving meaning to certain words or initials as follows:

(i) The words or initials Act or CAA mean or refer to the Clean Air Act, unless the context indicates otherwise.

(ii) The words EPA, we, us or our mean or refer to the United States Environmental Protection Agency.

(iii) The words State or WY mean the State of Wyoming, unless the context indicates otherwise.

(iv) The initials WDEQ mean the Wyoming Department of Environmental Quality.

(v) The initials NSPS mean the Federal New Source Performance Standards, as codified in 40 CFR part 60.

I. Delegation of Authority

Sections 110, 111(c)(1), and 301 of the Clean Air Act (CAA), as amended, authorize EPA to delegate authority to any state agency which submits adequate regulatory procedures for implementation and enforcement of the New Source Performance Standards (NSPS). The NSPS are codified in 40 CFR part 60. Delegation confers primary responsibility for implementation and enforcement of the listed NSPS to the respective state agency; however, EPA also retains the concurrent authority to enforce the standards.

With a June 13, 2008 letter, the Director of the Wyoming Department of Environmental Quality (WDEQ) requested delegation of authority for revisions to the New Source Performance Standards (NSPS), promulgated in Chapter 5, National Emission Standards, Section 2, New source performance standards, of the Wyoming Air Quality Standards and Regulations. For the most part, the revisions simply update the date for incorporation by reference of the Federal NSPS to those promulgated in 40 CFR part 60 as published on July 1, 2006. EPA's review of the pertinent regulations determined that they contain adequate and effective procedures for the implementation and enforcement of these Federal standards. Therefore, on November 26, 2008, delegation was given to Wyoming with the following letter:

Ref: 8P-AR

John V. Corra, Director, Wyoming Department of Environmental Quality, 122 West 25th Street, Cheyenne, WY 82002.

Re: Delegation of Clean Air Act New Source Performance Standards

Dear Mr. Corra: With your June 13, 2008 letter, the State of Wyoming submitted revisions to its Air Quality Standards and Regulations and requested, among other things, direct delegation to implement and enforce the Federal New Source Performance Standards (NSPS). Specifically, Wyoming Air Quality Standards and Regulations, Chapter 5, National Emission Standards, Section 2, New source performance standards, was revised, and a new Section 4, Incorporation by reference, was created to update the citation for the incorporated Federal NSPS in 40 CFR Part 60 as published on July 1, 2006, and to make minor administrative revisions.

Subsequent to States adopting NSPS regulations, EPA delegates the authority for the implementation and enforcement of those NSPS, so long as the States' regulations are equivalent to the Federal regulations. EPA reviewed the pertinent statutes and regulations of the State of Wyoming and determined that they provide an adequate and effective procedure for the implementation and enforcement of the NSPS by the State. Therefore, pursuant to Section 111(c) of the Clean Air Act (Act), as amended, and 40 CFR Part 60, EPA hereby delegates its authority for the implementation and enforcement of the NSPS to the State of Wyoming as follows:

(A) Responsibility for all sources located, or to be located, in the State of Wyoming subject to the standards of performance for new stationary sources promulgated in 40 CFR Part 60. The categories of new stationary sources covered by this delegation are all NSPS subparts in 40 CFR Part 60, as published on July 1, 2006. Note this delegation does not include the emission guidelines in subparts Cb, Cc, Cd, Ce, BBBB, DDDD, FFFF, and HHHH. These subparts require state plans, which are approved under a separate process pursuant to Section 111(d) of the Act.

(B) Not all authorities of NSPS can be delegated to States under Section 111(c) of the Act, as amended. The EPA Administrator retains authority to implement those sections of the NSPS that require: (1) Approving equivalency determinations and alternative test methods, (2) decision-making to ensure national consistency, and (3) EPA rulemaking in order to implement. Enclosed with this letter is a list of examples of sections in 40 CFR Part 60 related to the NSPS being delegated in this letter that cannot be delegated to the State of Wyoming. Please note that the enclosed list has been updated since our November 9, 2006 delegation of authority to implement and enforce the NSPS to the State of Wyoming.

(C) The Wyoming Department of Environmental Quality (WDEQ) and EPA will continue a system of communication sufficient to guarantee that each office is always kept informed and current regarding compliance status of the subject sources and interpretation of the regulations.

(D) Enforcement of the NSPS in the State will be the primary responsibility of the WDEQ. If the WDEQ determines that such enforcement is not feasible and so notifies EPA, or where the WDEQ acts in a manner inconsistent with the terms of this delegation, EPA may exercise its concurrent enforcement authority pursuant to section 113 of the Act, as amended, with respect to sources within the State of Wyoming subject to NSPS.

(E) The State of Wyoming will at no time grant a variance or waiver from compliance with NSPS regulations. Should WYDEQ grant such a variance or waiver, EPA will consider the source receiving such relief to be in violation of the applicable Federal regulation and initiate enforcement action against the source pursuant to section 113 of the Act. The granting of such relief by the WYDEQ shall also constitute grounds for revocation of the delegation by EPA.

(F) If at any time there is a conflict between a State regulation and a Federal regulation (40 CFR Part 60), the Federal regulation must be applied if it is more stringent than that of the State. If the State does not have the authority to enforce the more stringent Federal regulation, this portion of the delegation may be revoked.

(G) If the Regional Administrator determines that a State procedure for enforcing or implementing the NSPS is inadequate, or is not being effectively carried out, this delegation may be revoked in whole or part. Any such revocation shall be effective as of the date specified in a Notice of Revocation to the WDEQ.

(H) Acceptance of this delegation of presently promulgated NSPS does not commit the State of Wyoming to accept delegation of future standards and requirements. A new request for delegation will be required for any standards not included in the State's June 13, 2008 letter.

(I) Upon approval of the Regional Administrator of EPA Region 8, the Director of WDEQ may sub-delegate his authority to implement and enforce the NSPS to local air pollution control authorities in the State when such authorities have demonstrated that they have equivalent or more stringent programs in force.

(J) The State of Wyoming must require reporting of all excess emissions from any NSPS source in accordance with 40 CFR Part 60.7(c).

(K) Performance tests shall be scheduled and conducted in accordance with the procedures set forth in 40 CFR Part 60 unless alternate methods or procedures are approved by the EPA Administrator. Although the Administrator retains the exclusive right to approve equivalent and alternate test methods as specified in 40 CFR Part 60.8(b)(2) and (3), the State may approve minor changes in methodology provided these changes are reported to EPA Region 8. The Administrator also retains the right to change the opacity standard as specified in 40 CFR Part 60.11(e).

(L) Determinations of applicability, such as those specified in 40 CFR Part 60.5 and review of plans, as provided for in 40 CFR Part 60.6, shall be consistent with those determinations already made and reviews conducted by the EPA.

(M) Alternatives to continuous monitoring procedures or reporting requirements, as outlined in 40 CFR Part 60.13(i), may be approved by the State only if the specific NSPS grants that authority. Otherwise, EPA retains the authority to review and approve such alternatives.

(N) If a source proposes to modify its operation or facility which may cause the source to be subject to NSPS requirements, the State shall notify EPA Region 8 and obtain a determination on the applicability of the NSPS regulations.

(O) Information shall be made available to the public in accordance with 40 CFR Part 60.9. Any records, reports, or information provided to, or otherwise obtained by, the State in accordance with the provisions of these regulations shall be made available to the designated representatives of EPA upon request.

(P) All reports required pursuant to the delegated NSPS should not be submitted to the EPA Region 8 office, but rather to the WDEQ.

(Q) As 40 CFR Part 60 is updated, Wyoming should revise its regulations accordingly and in a timely manner and submit to EPA requests for updates to its delegation of authority.

EPA is approving Wyoming's request for NSPS delegation for all areas within the State except for the following: Lands within the exterior boundaries of the Wind River Indian Reservation; any lands held in trust by the United States for an Indian tribe; and any other areas which are “Indian Country” as defined in 18 U.S.C. 1151.

Since this delegation is effective immediately, there is no need for the State to notify the EPA of its acceptance. Unless we receive written notice of objections from you within ten days of the date on which you receive this letter, the State of Wyoming will be deemed to accept all the terms of this delegation. To inform the public of this delegation, EPA will publish an information notice in the Federal Register in which this letter will appear in its entirety.

EPA would like to take this opportunity to advise the State of Wyoming regarding some inconsistencies between its NSPS program and the Federal regulations. Although these inconsistencies have not been problematic from a practical standpoint, it would be best to clarify the language for future purposes to avoid any misinterpretations. Specifically, the State of Wyoming should revise the applicability provision (Chapter 5, Section 2(d)) and the definition of “existing facility” (Chapter 5, Section 2(e)(i)) so that the language is consistent with the language in the Federal requirements. The Federal regulations state that an “affected facility” and “existing facility” are determined based on the time a standard is proposed rather than the standard's effective date (see 40 CFR 60.1(a), 60.2). The State should modify the current Wyoming applicability section, which refers to “construction or modification of which is commenced after the effective date” to be consistent with the Federal applicability wording, which refers to “the construction or modification of which is commenced after * * * the date of publication of any proposed standard applicable to that facility.” Further, the current Wyoming definition of “existing facility,” which refers to “construction or modification of which commenced before the effective date,” should be revised to mirror the Federal definition, which refers to “construction or modification of which commenced before the proposed date.” EPA requests that the State of Wyoming provide confirmation that it intends to make these modifications in an upcoming rulemaking.

If you have any questions on this matter, please contact me at [phone] or Callie Videtich, Director of our Air Program, at [phone], or toll-free at 1-800-227-8917.

  Sincerely,

Stephen S. Tuber

Assistant Regional Administrator,

Office of Partnerships and Regulatory Assistance.

Enclosure

cc: Christine Anderson, WY Air Quality Division

Enclosure to Letter Delegating NSPS in 40 CFR Part 60, Effective Through July 1, 2006, to the State of Wyoming

Examples of Authorities in 40 CFR Part 60 Which Cannot Be Delegated

40 CFR subparts	Section(s)
A	60.8(b)(2) and (b)(3), and those sections throughout the standards that reference 60.8(b)(2) and (b)(3); 60.11(b) and (e); and 60.13(i).
Da	60.47Da.
Db	60.44b(f), 60.44b(g) and 60.49b(a)(4).
Dc	60.48c(a)(4).
Ec	60.56c(i), 60.8.
J	60.105(a)(13)(iii) and 60.106(i)(12).
Ka	60.114a.
Kb	60.111b(f)(4), 60.114b, 60.116b(e)(3)(iii), 60.116b(e)(3)(iv), and 60.116b(f)(2)(iii).
O	60.153(e).
DD	60.302(d)(3).
GG	60.332(a)(4) and 60.335(b)(10)(ii).
VV	60.482-1(c)(2) and 60.484.
WW	60.493(b)(2)(i)(A) and 60.496(a)(1).
XX	60.502(e)(6).
AAA	60.531, 60.533, 60.534, 60.535, 60.536(i)(2), 60.537, 60.538(e), and 60.539.
BBB	60.543(c)(2)(ii)(B).
DDD	60.562-2(c).
GGG	60.592(c).
III	60.613(e).
JJJ	60.623.
KKK	60.634.
NNN	60.663(f).
QQQ	60.694.
RRR	60.703(e).
SSS	60.711(a)(16), 60.713(b)(1)(i) and (ii), 60.713(b)(5)(i), 60.713(d), 60.715(a) and 60.716.
TTT	60.723(b)(1), 60.723(b)(2)(i)(C), 60.723(b)(2)(iv), 60.724(e) and 60.725(b).
VVV	60.743(a)(3)(v)(A) and (B), 60.743(e), 60.745(a) and 60.746.
WWW	60.754(a)(5).
CCCC	60.2030(c)(1) through (7).
EEEE	60.2889(b)(1) through (6).

II. Region 8 States Delegation Status

In 40 CFR 60.4, we publish a table for Region 8 states that identifies the NSPS subparts for which EPA has delegated authority to implement and enforce to each state. In this document, we update that table to reflect the NSPS subparts delegated to Wyoming.

III. Summary of This Action

This action informs the public of an update to the delegation of authority to the State of Wyoming to implement and enforce the Federal New Source Performance Standards as published in 40 CFR part 60 on July 1, 2006. The letter granting delegation to the State of Wyoming is effective November 26, 2008. The letter specified that the delegation was effective immediately as of the signature date of the letter and that if the State did not agree to the terms of the delegation, they could submit a written Notice of Objection within 10 days of the receipt of the letter, and EPA would withdraw delegation. Wyoming submitted no such Notice of Objection.

IV. Statutory and Executive Order Review

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does 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 (64 FR 43255, August 10, 1999). This action 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. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard.

In addition, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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).

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 May 8, 2009. 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 60

• Environmental protection
• Administrative practice and procedure
• Air pollution control
• Aluminum
• Ammonium sulfate plants
• Batteries
• Beverages
• Carbon monoxide
• Cement industry
• Chemicals
• Coal
• Copper
• Dry cleaners
• Electric power plants
• Fertilizers
• Fluoride
• Gasoline
• Glass and glass products
• Grains
• Graphic arts industry
• Heaters
• Household appliances
• Insulation
• Intergovernmental relations
• Iron
• Labeling
• Lead
• Lime
• Metallic and nonmetallic mineral processing plants
• Metals
• Motor vehicles
• Natural gas
• Nitric acid plants
• Nitrogen dioxide
• Paper and paper products industry
• Particulate matter
• Paving and roofing materials
• Petroleum
• Phosphate
• Plastics materials and synthetics
• Polymers
• Reporting and recordkeeping requirements
• Sewage disposal
• Steel
• Sulfur oxides
• Sulfuric acid plants
• Tires
• Urethane
• Vinyl
• Volatile organic compounds
• Waste treatment and disposal
• Zinc

.

Dated: February 24, 2009.

Carol Rushin,

Acting Regional Administrator, Region 8.

40 CFR part 60 is amended to read as follows:

PART 60—[AMENDED]

1. The authority citation for part 60 continues to read as follows:

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

Subpart A—General Provisions

2. In § 60.4, amend the table in paragraph (c) by revising the entry for subpart “Dc,” and by adding an entry for subpart “EEEE” in alphabetical order to read as follows:

§ 60.4

Address.

* * * * *

(c) * * *

Delegation Status of New Source Performance Standards

[(NSPS) for Region VIII]

Subpart	CO	MT	ND	SD	UT	WY
*         *         *         *         *         *         *
Dc—Industrial-Commercial-Institutional Steam Generators	(*)	(*)	(*)	(*)	(*)	(*)
*         *         *         *         *         *         *
EEEE—Other Solid Waste Incineration Units for Which Construction is Commenced After December 9, 2004, or for Which Modification or Reconstruction is Commenced On or After June 16, 2006						(*)
*         *         *         *         *         *         *
(*) Indicates approval of State regulation.

* * * * *