Approval and Promulgation of Air Quality Implementation Plans; Wyoming; Revisions to the Wyoming Air Quality Standards and Regulations, 19886-19891 [2010-8405]
Download as PDF
WReier-Aviles on DSKGBLS3C1PROD with RULES
19886
Federal Register / Vol. 75, No. 73 / Friday, April 16, 2010 / Rules and Regulations
proceed directly to shore to terminate at
latitude 30°22′54.46″ N, longitude
081°23′48.44″ W.
(4) Sherman Creek restricted area.
This restricted area shall encompass all
navigable waters of the United States, as
defined at 33 CFR part 329, to include
Sherman Creek, its tributaries and
associated tidal marshes located within
the NAVSTA Mayport area boundaries
described in this section. The restricted
area is completely encircled by
roadways and is bordered on the south
by Wonderwood Expressway, on the
west by SR A1A, on the north by
Perimeter Road, and on the east by
Mayport Road.
(5) Danger zone. The danger zone
shall encompass all navigable waters of
the United States, as defined at 33 CFR
part 329, within the area bounded by a
line connecting the following
coordinates: Commencing from the
shoreline at latitude 30°24′00.31″ N,
longitude 081°25′06.02″ W; thence to
latitude 30°24′11.16″ N, longitude
081°25′03.90″ W; thence to latitude
30°24′00.62″ N, longitude 081°24′10.13″
W; thence to a point on the shoreline
riprap at latitude 30°23′41.26″ N,
longitude 081°24′08.82″ W.
(b) The regulations—(1) St. Johns
River restricted area. All persons,
vessels, or other craft are prohibited
from entering, transiting, drifting,
dredging, or anchoring within the area
described in paragraph (a)(2) of this
section without the permission of the
Commanding Officer, NAVSTA Mayport
or his/her authorized representative.
This restriction will be in place 24
hours a day, seven days a week.
Warning signs notifying individuals of
the restricted area boundary and
prohibiting entry into the area will be
posted at 500-foot intervals along the
property boundary.
(2) Atlantic Ocean restricted area. All
persons, vessels, or other craft are
prohibited from entering, transiting,
drifting, dredging, or anchoring within
the area described in paragraph (a)(3) of
this section without the permission of
the Commanding Officer, NAVSTA
Mayport or his/her authorized
representative. This restriction will be
in place 24 hours a day, seven days a
week. Warning signs notifying
individuals of the restricted area
boundary and prohibiting entry into the
area will be posted at 500-foot intervals
along the property boundary.
(3) Sherman Creek restricted area. All
persons, vessels, or other craft are
prohibited from entering, transiting,
drifting, dredging, or anchoring within
the area described in paragraph (a)(4) of
this section without the permission of
the Commanding Officer, NAVSTA
VerDate Nov<24>2008
15:02 Apr 15, 2010
Jkt 220001
Mayport or his/her authorized
representative. This restriction will be
in place 24 hours a day, seven days a
week. Warning signs notifying
individuals of the restricted area
boundary and prohibiting entry into the
area will be posted at 500-foot intervals
along the property boundary where
practicable (e.g., not in the wetlands). In
addition, a floating Small Craft Intrusion
Barrier will be placed across Sherman
Creek just east of the A1A bridge and
another will be placed across tributaries
to Sherman Creek just north of the
Wonderwood Expressway.
(4) Danger zone. During periods of
munitions movement at wharves Bravo
and Charlie, no person or vessel shall be
allowed to remain within the 1,250-foot
Explosive Safety Quantity-Distance arcs
generated by the activity. NAVSTA
Mayport will not announce or publish
notification prior to enforcing this
regulation due to the unacceptable
security threat posed by advance public
notice of military munitions
movements.
(c) Enforcement. The regulations in
this section shall be enforced by the
Commanding Officer, NAVSTA Mayport
and/or such persons or agencies as he/
she may designate. Military vessels will
patrol the areas identified in this section
24 hours a day, 7 days a week. Any
person or vessel encroaching within the
areas identified in this section will be
asked to immediately leave the area.
Failure to do so will result in the
forceful removal of the person or vessel
from the area in question.
Dated: April 7, 2010.
Approved.
Michael G. Ensch,
Chief, Operations, Directorate of Civil Works.
[FR Doc. 2010–8786 Filed 4–15–10; 8:45 am]
BILLING CODE 3720–58–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R08–OAR–2009–0052; FRL–9136–6]
Approval and Promulgation of Air
Quality Implementation Plans;
Wyoming; Revisions to the Wyoming
Air Quality Standards and Regulations
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Direct final rule.
SUMMARY: EPA is approving two State
Implementation Plan revisions
submitted by the State of Wyoming on
September 11, 2008. Wyoming has
revised its Air Quality Standards and
PO 00000
Frm 00014
Fmt 4700
Sfmt 4700
Regulations, specifically Chapter 1,
Section 5, Unavoidable equipment
malfunction, and Chapter 1, Section 6,
Credible evidence. Because these
revisions conform to the Clean Air Act
and EPA regulations, EPA is approving
the revisions with the intention of
making them Federally enforceable.
EPA is taking this action under section
110 of the Clean Air Act.
DATES: This rule is effective on June 15,
2010 without further notice, unless EPA
receives adverse comment by May 17,
2010. If adverse comment is received,
EPA will publish a timely withdrawal of
the direct final rule in the Federal
Register informing the public that the
rule will not take effect.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R08–
OAR–2009–0052, by one of the
following methods:
• https://www.regulations.gov. Follow
the on-line instructions for submitting
comments.
• E-mail: dolan.kathy@epa.gov.
• Fax: (303) 312–6064 (please alert
the individual listed in the FOR FURTHER
INFORMATION CONTACT if you are faxing
comments).
• Mail: Director, Air Program,
Environmental Protection Agency
(EPA), Region 8, Mailcode 8P–AR, 1595
Wynkoop Street, Denver, Colorado
80202–1129.
• Hand Delivery: Director, Air
Program, Environmental Protection
Agency (EPA), Region 8, Mailcode
8P–AR, 1595 Wynkoop Street, Denver,
Colorado 80202–1129. Such deliveries
are only accepted Monday through
Friday, 8 a.m. to 4:30 p.m., excluding
Federal holidays. Special arrangements
should be made for deliveries of boxed
information.
Instructions: Direct your comments to
Docket ID No. EPA–R08–OAR–2009–
0052. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at https://
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through https://
www.regulations.gov or e-mail. The
https://www.regulations.gov Web site is
an ‘‘anonymous access’’ system, which
means EPA will not know your identity
or contact information unless you
provide it in the body of your comment.
If you send an e-mail comment directly
to EPA without going through https://
E:\FR\FM\16APR1.SGM
16APR1
Federal Register / Vol. 75, No. 73 / Friday, April 16, 2010 / Rules and Regulations
www.regulations.gov, your e-mail
address will be automatically captured
and included as part of the comment
that is placed in the public docket and
made available on the Internet. If you
submit an electronic comment, EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. If EPA
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption, and be free of any defects or
viruses. For additional instructions on
submitting comments, go to Section I.
General Information of the
SUPPLEMENTARY INFORMATION section of
this document.
Docket: All documents in the docket
are listed in the https://
www.regulations.gov index. Although
listed in the index, some information is
not publicly available, e.g., CBI or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
will be publicly available only in hard
copy. Publicly available docket
materials are available either
electronically in https://
www.regulations.gov or in hard copy at
the Air Program, Environmental
Protection Agency (EPA), Region 8,
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 docket. You may view the hard
copy of the docket Monday through
Friday, 8 a.m. to 4 p.m., excluding
Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Kathy Dolan, Air Program, U.S.
Environmental Protection Agency
(EPA), Region 8, Mailcode 8P–AR, 1595
Wynkoop Street, Denver, Colorado
80202–1129. 303–312–6142,
dolan.kathy@epa.gov.
SUPPLEMENTARY INFORMATION:
WReier-Aviles on DSKGBLS3C1PROD with RULES
Table of Contents
I. General Information
II. Background of Wyoming’s Submissions
III. EPA’s Review of Wyoming’s Submissions
IV. Consideration of Section 110(l) of the
CAA
V. Final Action
VI. Statutory and Executive Order Reviews
Definitions
For the purpose of this document, we
are giving meaning to certain words or
initials as follows:
VerDate Nov<24>2008
15:02 Apr 15, 2010
Jkt 220001
(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 initials SIP mean or refer to
State Implementation Plan.
(iv) The words State or Wyoming
mean the State of Wyoming, unless the
context indicates otherwise.
I. General Information
A. What Should I Consider as I Prepare
My Comments for EPA?
1. Submitting CBI. Do not submit this
information to EPA through https://
regulations.gov or e-mail. Clearly mark
the part or all of the information that
you claim to be CBI. For CBI
information in a disk or CD ROM that
you mail to EPA, mark the outside of the
disk or CD ROM as CBI and then
identify electronically within the disk or
CD ROM the specific information that is
claimed as CBI. In addition to one
complete version of the comment that
includes information claimed as CBI, a
copy of the comment that does not
contain the information claimed as CBI
must be submitted for inclusion in the
public docket. Information so marked
will not be disclosed except in
accordance with procedures set forth in
40 CFR part 2.
2. Tips for Preparing Your Comments.
When submitting comments, remember
to:
a. Identify the rulemaking by docket
number and other identifying
information (subject heading, Federal
Register date and page number).
b. Follow directions—The agency may
ask you to respond to specific questions
or organize comments by referencing a
Code of Federal Regulations (CFR) part
or section number.
c. Explain why you agree or disagree;
suggest alternatives and substitute
language for your requested changes.
d. Describe any assumptions and
provide any technical information and/
or data that you used.
e. If you estimate potential costs or
burdens, explain how you arrived at
your estimate in sufficient detail to
allow for it to be reproduced.
f. Provide specific examples to
illustrate your concerns, and suggest
alternatives.
g. Explain your views as clearly as
possible, avoiding the use of profanity
or personal threats.
h. Make sure to submit your
comments by the comment period
deadline identified.
PO 00000
Frm 00015
Fmt 4700
Sfmt 4700
19887
II. Background of Wyoming’s
Submissions
On September 11, 2008 the State of
Wyoming submitted to EPA two formal
revisions to Wyoming’s State
Implementation Plan (SIP). These
revisions amend Wyoming’s Air Quality
Standards and Regulations. In
particular, Wyoming has revised
Chapter 1, Common Provisions, Section
5, Unavoidable equipment malfunction,
and has added a new section—Section
6, Credible evidence—to Chapter 1.
A. Chapter 1, Common Provisions,
Section 5, Unavoidable Equipment
Malfunction
Wyoming has revised its unavoidable
equipment malfunction rule in response
to a series of EPA actions. On November
16, 2000, the Administrator of the EPA
issued an order granting in part a
petition to object to Wyoming’s issuance
of a Title V permit. In the Matter of:
Pacificorp’s Jim Bridger and Naughton
Electric Utility Steam Generating Plants,
Petition No. VIII–00–1 (Nov. 16, 2000).
In the order, the Administrator directed
EPA’s regional office in Denver (EPA
Region 8) to review Wyoming’s
Abnormal Conditions and Equipment
Malfunction rule. On November 1, 2002,
in another Title V petition order, the
Administrator repeated this direction. In
the Matter of: Title V Permit for
Buckingham Lumber Company,
Buckingham Lumber Mill, Petition No.
VIII–2002–01 (Nov. 1, 2002). After
completing its review, EPA Region 8
identified for Wyoming deficiencies in
the rule. Letter from Richard R. Long,
Director, Air and Radiation Program,
EPA Region 8, to Dan Olson,
Administrator, Wyoming’s Department
of Environmental Quality (Jan. 30,
2003). EPA Region 8 noted that the rule
did not conform to Clean Air Act
requirements to protect National
Ambient Air Quality Standards
(NAAQS) and Prevention of Significant
Deterioration (PSD) increments.
Specifically, the rule allowed an
exemption from enforcement for excess
emissions that occurred during
malfunctions and certain other
conditions. EPA’s interpretation was
and continues to be that the Clean Air
Act requires that all periods of excess
emissions be treated as violations that
cannot be exempted from enforcement.
EPA therefore requested that the rule be
revised.
On November 16, 2005, the
Environmental Quality Council of the
Wyoming Department of Environmental
Quality approved a revision to the
Abnormal Conditions and Equipment
Malfunction rule. The revision removed
E:\FR\FM\16APR1.SGM
16APR1
19888
Federal Register / Vol. 75, No. 73 / Friday, April 16, 2010 / Rules and Regulations
the existing automatic exemption and
replaced it with enforcement discretion
provisions for excess emissions caused
by malfunctions. The revision became
State-effective January 30, 2006. On
September 11, 2008, the Governor of the
State of Wyoming submitted the
revision to Region 8.
B. Chapter 1, Common Provisions,
Section 6, Credible Evidence
Wyoming has added the credible
evidence section to its rules in response
to an EPA SIP call. On February 24,
1997, EPA revised its rule governing the
use of credible evidence in enforcement
actions. 62 FR 8314. In parallel, EPA
directed its Regional Offices to conduct
a SIP call to States in order to ensure
consistency with the revised credible
evidence rule. On October 20, 1999,
EPA Region 8 issued a SIP call to
Wyoming. In a letter from EPA Regional
Administrator William P. Yellowtail
notifying Wyoming of the SIP call, EPA
stated that the Wyoming SIP did not
comply with sections 110(a)(2)(A) and
(C) of the CAA because the SIP could be
interpreted to limit the types of credible
evidence or information that could be
used for determining compliance and
establishing violations.
On October 23, 2000, the
Environmental Quality Council of the
Wyoming Department of Environmental
Quality approved revisions to the
Wyoming Air Quality Standards and
Regulations, including the addition of a
provision (Chapter 1, Common
Provisions, Section 6, Credible
evidence) allowing for the use of
credible evidence in enforcement
actions. The added provision became
State-effective December 8, 2000. On
September 11, 2008, the Governor of the
State of Wyoming submitted the
revision to Region 8.
WReier-Aviles on DSKGBLS3C1PROD with RULES
III. EPA’s Review of Wyoming’s
Submissions
To determine if Wyoming’s
submissions should be approved by
EPA, EPA must evaluate the
submissions for consistency with the
CAA and EPA regulations.
A. Revision to Chapter 1, Common
Provisions, Section 5, Unavoidable
Equipment Malfunction
EPA’s interpretations of the Act
regarding excess emissions caused by
equipment malfunctions are contained
in several documents. Most relevant to
this action are the following documents:
A memorandum dated September 28,
1982, from Kathleen M. Bennett,
Assistant Administrator for Air, Noise,
and Radiation, entitled ‘‘Policy on
Excess Emissions During Startup,
VerDate Nov<24>2008
15:02 Apr 15, 2010
Jkt 220001
Shutdown, Maintenance, and
Malfunctions’’; a clarification to that
memorandum from Kathleen M. Bennett
issued on February 15, 1983; and a
memorandum entitled ‘‘State
Implementation Plans: Policy Regarding
Excess Emissions During Malfunctions,
Startup, and Shutdown,’’ from Steven A.
Herman, Assistant Administrator for
Enforcement and Compliance
Assurance, and Robert Perciasepe,
Assistant Administrator for Air and
Radiation, dated September 20, 1999.1
As explained in these memoranda,
excess emissions are those air emission
levels that exceed any applicable
emission limitation. Because excess
emissions might aggravate air quality so
as to prevent attainment and
maintenance of the NAAQS or
jeopardize the PSD increments, EPA
views all periods of excess emissions as
violations of the applicable emission
limitation. Therefore, EPA will
disapprove all SIP revisions that
automatically exempt from enforcement
excess emissions claimed to result from
an equipment malfunction. In addition,
EPA will disapprove SIP revisions that
give discretion to a state director to
determine whether an instance of excess
emissions is a violation of an emission
limitation, because such a
determination could bar EPA and
citizens from enforcing applicable
requirements.
Instead, under EPA’s interpretations,
if a state chooses to address violations
for excess emissions that occur as a
result of claimed malfunctions, the state
may take two approaches. The first, the
‘‘enforcement discretion’’ approach,
allows a state director to refrain from
taking enforcement action for a violation
if certain criteria are met. The second,
the ‘‘affirmative defense’’ approach,
allows a source to avoid penalties if it
can prove that certain conditions are
met.
Wyoming has selected the
enforcement discretion approach. Under
this approach, the state director, in
evaluating whether to exercise
discretion to decline enforcement for a
violation caused by an unavoidable
malfunction, should consider whether
the following criteria have been
satisfied:
1. To the maximum extent practicable
the air pollution control equipment,
1 The relevant interpretations were not affected by
a subsequent memorandum titled ‘‘Reissuance of
Clarification—State Implementation Plans (SIPs):
Policy Regarding Excess Emissions During
Malfunctions, Startup, and Shutdown,’’ dated
December 5, 2001, from Eric Schaeffer, Director,
Office of Regulatory Enforcement, Office of
Enforcement and Compliance Assurance, and John
S. Seitz, Director, Office of Air Quality Planning
and Standards, Office of Air and Radiation.
PO 00000
Frm 00016
Fmt 4700
Sfmt 4700
process equipment, or processes were
maintained and operated in a manner
consistent with good practice for
minimizing emissions;
2. Repairs were made in an
expeditious fashion when the operator
knew or should have known that
applicable emission limitations were
being exceeded. Off-shift labor and
overtime must have been utilized, to the
extent practicable, to ensure that such
repairs were made as expeditiously as
practicable;
3. The amount and duration of the
excess emissions (including any bypass)
were minimized to the maximum extent
practicable during periods of such
emissions;
4. All possible steps were taken to
minimize the impact of the excess
emissions on ambient air quality; and
5. The excess emissions are not part
of a recurring pattern indicative of
inadequate design, operation, or
maintenance.
We have evaluated Wyoming’s
enforcement discretion provisions for
excess emissions caused by unavoidable
equipment malfunctions. The
provisions are consistent with EPA’s
interpretations of the CAA as described
in the memoranda above. Specifically,
Chapter 1, Common Provisions, section
5(b) gives the Wyoming Air Quality
Division discretion when deciding
whether to ‘‘pursue enforcement after
considering whether excess emissions
resulted from an unavoidable
equipment malfunction.’’ The Division
is to make this decision by evaluating,
on a case-by-case basis, information to
be submitted by the source after an
incident. The information submitted by
the source and considered by the
Division is defined in section 5(a)(i)(A)
and generally parallels the criteria
outlined in the Kathleen Bennett
memoranda discussed above. The
source has the burden to provide
sufficient information to demonstrate
that the Division should use its
discretion.
EPA’s memoranda also discuss a
point not explicitly addressed in
Wyoming’s new rule. There is no
language in the new rule explicitly
stating that, even when the Division
exercises its discretion and declines
enforcement, that exercise of discretion
does not bar EPA or any citizen from
taking an enforcement action for the
violation. However, there is also no
language in the new rule explicitly
creating such a bar. EPA therefore
interprets the rule, consistent with
EPA’s interpretations of the CAA, as not
barring EPA and citizen enforcement for
violation of applicable requirements
when the Division declines
E:\FR\FM\16APR1.SGM
16APR1
Federal Register / Vol. 75, No. 73 / Friday, April 16, 2010 / Rules and Regulations
enforcement. Under this interpretation,
the new rule is consistent with the CAA.
EPA is therefore approving the revisions
to Chapter 1, Common Provisions,
Section 5.
WReier-Aviles on DSKGBLS3C1PROD with RULES
B. Addition to Chapter 1, Common
Provisions, Section 6, Credible Evidence
On February 24, 1997, EPA
promulgated regulations under sections
113(a) and 113(e)(1) of the CAA
clarifying the use of non-reference test
data—‘‘credible evidence’’—in
enforcement actions and compliance
certifications. 62 FR 8314. In particular,
the regulations prohibit state
implementation plans from precluding
the use of credible evidence. The
regulations state: ‘‘For the purpose of
submitting compliance certifications or
establishing whether or not a person has
violated or is in violation of any
standard in this part, the plan must not
preclude the use, including the
exclusive use, of any credible evidence
or information, relevant to whether a
source would have been in compliance
with applicable requirements if the
appropriate performance or compliance
test or procedure had been performed.’’
40 CFR 51.212(c).
EPA has reviewed Wyoming’s new
credible evidence rule. The new rule
mirrors the language in 40 CFR
51.212(c) quoted above and provides for
the use of credible evidence in
enforcement actions and compliance
certifications. Therefore, it is consistent
with the CAA and EPA regulations. As
a result, EPA is approving the addition
of the new credible evidence rule,
Chapter 1, Common Provisions, Section
6, Credible evidence, into Wyoming’s
SIP.
IV. Consideration of Section 110(l) of
the CAA
Under section 110(l) of the Clean Air
Act, EPA cannot approve a SIP revision
if the revision would interfere with any
applicable requirements concerning
attainment and reasonable further
progress toward attainment of the
NAAQS or any other applicable
requirement of the Act. The Wyoming
SIP revisions that EPA approves today
do not interfere with attainment of the
NAAQS or any other applicable
requirement of the Act. The first
revision removes a provision from the
Wyoming SIP that provided an outright
exemption from emission limits during
malfunctions. In place of the exemption,
the SIP now provides—in accordance
with the CAA—that the Wyoming Air
Quality Division may exercise its
enforcement discretion after considering
whether excess emissions resulted from
an unavoidable equipment malfunction.
VerDate Nov<24>2008
15:02 Apr 15, 2010
Jkt 220001
In the absence of the previous automatic
exemption, sources will now have a
greater incentive to comply with their
emission limits, which will protect the
NAAQS and increments to a greater
degree than under the previous rule.
The second revision, providing for use
of credible evidence, also protects the
NAAQS and increments to a greater
degree by allowing for enhanced
enforcement of emissions limits.
Therefore, section 110(l) requirements
are satisfied.
19889
VI. Statutory and Executive Order
Reviews
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
V. Final Action
requirements and imposes no additional
requirements beyond those imposed by
EPA is approving SIP revisions that
State law. Accordingly, the
Wyoming submitted on September 11,
Administrator certifies that this rule
2008. The Environmental Quality
will not have a significant economic
Council of the Wyoming Department of
impact on a substantial number of small
Environmental Quality adopted
entities under the Regulatory Flexibility
revisions to Chapter 1, Common
Act (5 U.S.C. 601 et seq.). Because this
Provisions, Section 5, Unavoidable
rule approves pre-existing requirements
equipment malfunction on November
under State law and does not impose
16, 2005; these revisions became Stateany additional enforceable duty beyond
effective on January 30, 2006. The
that required by State law, it does not
Council added Chapter 1, Common
contain any unfunded mandate or
Provisions, Section 6, Credible evidence, significantly or uniquely affect small
to the Wyoming Air Quality Standards
governments, as described in the
and Regulations on October 23, 2000;
Unfunded Mandates Reform Act of 1995
(Pub. L. 104–4).
this addition became State-effective on
This rule also does not have tribal
December 8, 2000.
implications because it will not have a
EPA is publishing this rule without
substantial direct effect on one or more
prior proposal because the Agency
Indian tribes, on the relationship
views this as a noncontroversial
between the Federal Government and
amendment and anticipates no adverse
Indian tribes, or on the distribution of
comments; we are merely approving
power and responsibilities between the
changes to Wyoming’s air rules that
Federal Government and Indian tribes,
conform to the CAA and EPA
as specified by Executive Order 13175
regulations. However, in the ‘‘Proposed
(65 FR 67249, November 9, 2000). This
Rules’’ section of today’s Federal
action also does not have Federalism
Register publication, EPA is publishing
implications because it does not have
a separate document that will serve as
substantial direct effects on the States,
the proposal to approve the SIP revision on the relationship between the national
if adverse comments are filed. This rule government and the States, or on the
will be effective June 15, 2010 without
distribution of power and
further notice unless the Agency
responsibilities among the various
levels of government, as specified in
receives adverse comments by May 17,
Executive Order 13132 (64 FR 43255,
2010. If the EPA receives adverse
August 10, 1999). This action merely
comments, EPA will publish a timely
approves a State rule implementing a
withdrawal in the Federal Register
Federal standard and does not alter the
informing the public that the rule will
relationship or the distribution of power
not take effect. EPA will address all
and responsibilities established in the
public comments in a subsequent final
Clean Air Act. This rule also is not
rule based on the proposed rule. The
subject to Executive Order 13045,
EPA will not institute a second
‘‘Protection of Children from
comment period on this action. Any
Environmental Health Risks and Safety
parties interested in commenting must
Risks’’ (62 FR 19885, April 23, 1997),
do so at this time. Please note that if
because it approves a State rule
EPA receives adverse comment on an
implementing a Federal standard.
amendment, paragraph, or section of
In reviewing SIP submissions, EPA’s
this rule and if that provision may be
role is to approve State choices,
severed from the remainder of the rule,
provided that they meet the criteria of
EPA may adopt as final those provisions the Clean Air Act. In this context, in the
of the rule that are not the subject of an
absence of a prior existing requirement
adverse comment.
for the State to use voluntary consensus
PO 00000
Frm 00017
Fmt 4700
Sfmt 4700
E:\FR\FM\16APR1.SGM
16APR1
19890
Federal Register / Vol. 75, No. 73 / Friday, April 16, 2010 / Rules and Regulations
standards (VCS), EPA has no authority
to disapprove a SIP submission for
failure to use VCS. It would thus be
inconsistent with applicable law for
EPA, when it reviews a SIP submission,
to use VCS in place of a SIP submission
that otherwise satisfies the provisions of
the Clean Air Act. Thus, 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. section 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. section 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
State citation
States Court of Appeals for the
appropriate circuit by June 15, 2010.
Filing a petition for reconsideration by
the Administrator of this final rule does
not affect the finality of this action 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. Parties with
objections to this direct final rule are
encouraged to file a comment in
response to the parallel notice of
proposed rulemaking for this action
published in the proposed rules section
of today’s Federal Register, rather than
file an immediate petition for judicial
review of this direct final rule, so that
EPA can withdraw this direct final rule
and address the comment in the
proposed rulemaking. 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, Carbon monoxide,
Incorporation by reference,
Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
Dated: April 1, 2010.
Carol L. Campbell,
Acting Deputy Regional Administrator,
Region 8.
40 CFR part 52 is amended to read as
follows:
■
State adopted and
effective date
Title/subject
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
revising paragraph (b)(3); and the table
in paragraph (c)(1) is amended under
Chapter 1 by revising the entry for
Section 5 and adding an entry for
Section 6 to read as follows:
■
§ 52.2620
Identification of plan.
*
*
*
*
*
(b) * * *
(3) Copies of the materials
incorporated by reference may be
inspected at the Environmental
Protection Agency, Region 8, 1595
Wynkoop Street, Denver, Colorado
80202–1129; the Environmental
Protection Agency, Air and Radiation
Docket and Information Center, Air
Docket (6102), 1200 Pennsylvania Ave.,
NW., Washington, DC 20460; or the
National Archives and Records
Administration (NARA). For
information on the availability of this
material at NARA, call 202–741–6030,
or go to https://www.archives.gov/
federal-register/cfr/ibr-locations.html.
(c) * * *
(1) * * *
EPA approval date and
citation 1
Explanation
Chapter 1
*
*
Section 5 ....................................
*
*
*
Section 6 ....................................
*
Unavoidable Equipment Malfunction.
Credible Evidence ......................
*
*
*
11/16/05, 1/30/06
10/23/00, 12/8/00
*
4/16/10 [Insert FR page number
where document begins].
4/16/10 [Insert FR page number
where document begins].
*
*
1 In
*
*
WReier-Aviles on DSKGBLS3C1PROD with RULES
order to determine the EPA effective date for a specific provision that is listed in this table, consult the Federal Register cited in this column for that particular provision.
VerDate Nov<24>2008
15:02 Apr 15, 2010
Jkt 220001
PO 00000
Frm 00018
Fmt 4700
Sfmt 9990
E:\FR\FM\16APR1.SGM
16APR1
Federal Register / Vol. 75, No. 73 / Friday, April 16, 2010 / Rules and Regulations
*
*
*
*
*
[FR Doc. 2010–8405 Filed 4–15–10; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF HOMELAND
SECURITY
Federal Emergency Management
Agency
44 CFR Part 64
[Docket ID FEMA–2010–0003; Internal
Agency Docket No. FEMA–8127]
Suspension of Community Eligibility
WReier-Aviles on DSKGBLS3C1PROD with RULES
AGENCY: Federal Emergency
Management Agency, DHS.
ACTION: Final rule.
SUMMARY: This rule identifies
communities, where the sale of flood
insurance has been authorized under
the National Flood Insurance Program
(NFIP), that are scheduled for
suspension on the effective dates listed
within this rule because of
noncompliance with the floodplain
management requirements of the
program. If the Federal Emergency
Management Agency (FEMA) receives
documentation that the community has
adopted the required floodplain
management measures prior to the
effective suspension date given in this
rule, the suspension will not occur and
a notice of this will be provided by
publication in the Federal Register on a
subsequent date.
DATES: Effective Dates: The effective
date of each community’s scheduled
suspension is the third date (‘‘Susp.’’)
listed in the third column of the
following tables.
FOR FURTHER INFORMATION CONTACT: If
you want to determine whether a
particular community was suspended
on the suspension date or for further
information, contact David Stearrett,
Mitigation Directorate, Federal
Emergency Management Agency, 500 C
Street, SW., Washington, DC 20472,
(202) 646–2953.
SUPPLEMENTARY INFORMATION: The NFIP
enables property owners to purchase
flood insurance which is generally not
otherwise available. In return,
communities agree to adopt and
administer local floodplain management
aimed at protecting lives and new
construction from future flooding.
Section 1315 of the National Flood
VerDate Nov<24>2008
15:02 Apr 15, 2010
Jkt 220001
Insurance Act of 1968, as amended, 42
U.S.C. 4022, prohibits flood insurance
coverage as authorized under the NFIP,
42 U.S.C. 4001 et seq.; unless an
appropriate public body adopts
adequate floodplain management
measures with effective enforcement
measures. The communities listed in
this document no longer meet that
statutory requirement for compliance
with program regulations, 44 CFR part
59. Accordingly, the communities will
be suspended on the effective date in
the third column. As of that date, flood
insurance will no longer be available in
the community. However, some of these
communities may adopt and submit the
required documentation of legally
enforceable floodplain management
measures after this rule is published but
prior to the actual suspension date.
These communities will not be
suspended and will continue their
eligibility for the sale of insurance. A
notice withdrawing the suspension of
the communities will be published in
the Federal Register.
In addition, FEMA has identified the
Special Flood Hazard Areas (SFHAs) in
these communities by publishing a
Flood Insurance Rate Map (FIRM). The
date of the FIRM, if one has been
published, is indicated in the fourth
column of the table. No direct Federal
financial assistance (except assistance
pursuant to the Robert T. Stafford
Disaster Relief and Emergency
Assistance Act not in connection with a
flood) may legally be provided for
construction or acquisition of buildings
in identified SFHAs for communities
not participating in the NFIP and
identified for more than a year, on
FEMA’s initial flood insurance map of
the community as having flood-prone
areas (section 202(a) of the Flood
Disaster Protection Act of 1973, 42
U.S.C. 4106(a), as amended). This
prohibition against certain types of
Federal assistance becomes effective for
the communities listed on the date
shown in the last column. The
Administrator finds that notice and
public comment under 5 U.S.C. 553(b)
are impracticable and unnecessary
because communities listed in this final
rule have been adequately notified.
Each community receives 6-month,
90-day, and 30-day notification letters
addressed to the Chief Executive Officer
stating that the community will be
suspended unless the required
floodplain management measures are
PO 00000
Frm 00019
Fmt 4700
Sfmt 4700
19891
met prior to the effective suspension
date. Since these notifications were
made, this final rule may take effect
within less than 30 days.
National Environmental Policy Act.
This rule is categorically excluded from
the requirements of 44 CFR part 10,
Environmental Considerations. No
environmental impact assessment has
been prepared.
Regulatory Flexibility Act. The
Administrator has determined that this
rule is exempt from the requirements of
the Regulatory Flexibility Act because
the National Flood Insurance Act of
1968, as amended, 42 U.S.C. 4022,
prohibits flood insurance coverage
unless an appropriate public body
adopts adequate floodplain management
measures with effective enforcement
measures. The communities listed no
longer comply with the statutory
requirements, and after the effective
date, flood insurance will no longer be
available in the communities unless
remedial action takes place.
Regulatory Classification. This final
rule is not a significant regulatory action
under the criteria of section 3(f) of
Executive Order 12866 of September 30,
1993, Regulatory Planning and Review,
58 FR 51735.
Executive Order 13132, Federalism.
This rule involves no policies that have
federalism implications under Executive
Order 13132.
Executive Order 12988, Civil Justice
Reform. This rule meets the applicable
standards of Executive Order 12988.
Paperwork Reduction Act. This rule
does not involve any collection of
information for purposes of the
Paperwork Reduction Act, 44 U.S.C.
3501 et seq.
List of Subjects in 44 CFR Part 64
Flood insurance, Floodplains.
Accordingly, 44 CFR part 64 is
amended as follows:
■
PART 64—[AMENDED]
1. The authority citation for part 64
continues to read as follows:
■
Authority: 42 U.S.C. 4001 et seq.;
Reorganization Plan No. 3 of 1978, 3 CFR,
1978 Comp.; p. 329; E.O. 12127, 44 FR 19367,
3 CFR, 1979 Comp.; p. 376.
§ 64.6
[Amended]
2. The tables published under the
authority of § 64.6 are amended as
follows:
■
E:\FR\FM\16APR1.SGM
16APR1
Agencies
[Federal Register Volume 75, Number 73 (Friday, April 16, 2010)]
[Rules and Regulations]
[Pages 19886-19891]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-8405]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2009-0052; FRL-9136-6]
Approval and Promulgation of Air Quality Implementation Plans;
Wyoming; Revisions to the Wyoming Air Quality Standards and Regulations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is approving two State Implementation Plan revisions
submitted by the State of Wyoming on September 11, 2008. Wyoming has
revised its Air Quality Standards and Regulations, specifically Chapter
1, Section 5, Unavoidable equipment malfunction, and Chapter 1, Section
6, Credible evidence. Because these revisions conform to the Clean Air
Act and EPA regulations, EPA is approving the revisions with the
intention of making them Federally enforceable. EPA is taking this
action under section 110 of the Clean Air Act.
DATES: This rule is effective on June 15, 2010 without further notice,
unless EPA receives adverse comment by May 17, 2010. If adverse comment
is received, EPA will publish a timely withdrawal of the direct final
rule in the Federal Register informing the public that the rule will
not take effect.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2009-0052, by one of the following methods:
https://www.regulations.gov. Follow the on-line
instructions for submitting comments.
E-mail: dolan.kathy@epa.gov.
Fax: (303) 312-6064 (please alert the individual listed in
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
Mail: Director, Air Program, Environmental Protection
Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver,
Colorado 80202-1129.
Hand Delivery: Director, Air Program, Environmental
Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street,
Denver, Colorado 80202-1129. Such deliveries are only accepted Monday
through Friday, 8 a.m. to 4:30 p.m., excluding Federal holidays.
Special arrangements should be made for deliveries of boxed
information.
Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-
2009-0052. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
https://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through https://www.regulations.gov or e-mail. The https://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through https://
[[Page 19887]]
www.regulations.gov, your e-mail address will be automatically captured
and included as part of the comment that is placed in the public docket
and made available on the Internet. If you submit an electronic
comment, EPA recommends that you include your name and other contact
information in the body of your comment and with any disk or CD-ROM you
submit. If EPA cannot read your comment due to technical difficulties
and cannot contact you for clarification, EPA may not be able to
consider your comment. Electronic files should avoid the use of special
characters, any form of encryption, and be free of any defects or
viruses. For additional instructions on submitting comments, go to
Section I. General Information of the SUPPLEMENTARY INFORMATION section
of this document.
Docket: All documents in the docket are listed in the https://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in https://www.regulations.gov or in hard copy at the Air Program,
Environmental Protection Agency (EPA), Region 8, 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 docket. You may view the hard copy
of the docket Monday through Friday, 8 a.m. to 4 p.m., excluding
Federal holidays.
FOR FURTHER INFORMATION CONTACT: Kathy Dolan, Air Program, U.S.
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595
Wynkoop Street, Denver, Colorado 80202-1129. 303-312-6142,
dolan.kathy@epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. General Information
II. Background of Wyoming's Submissions
III. EPA's Review of Wyoming's Submissions
IV. Consideration of Section 110(l) of the CAA
V. Final Action
VI. Statutory and Executive Order Reviews
Definitions
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 initials SIP mean or refer to State Implementation Plan.
(iv) The words State or Wyoming mean the State of Wyoming, unless
the context indicates otherwise.
I. General Information
A. What Should I Consider as I Prepare My Comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
https://regulations.gov or e-mail. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as
CBI and then identify electronically within the disk or CD ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
2. Tips for Preparing Your Comments. When submitting comments,
remember to:
a. Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date and page number).
b. Follow directions--The agency may ask you to respond to specific
questions or organize comments by referencing a Code of Federal
Regulations (CFR) part or section number.
c. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
d. Describe any assumptions and provide any technical information
and/or data that you used.
e. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
f. Provide specific examples to illustrate your concerns, and
suggest alternatives.
g. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
h. Make sure to submit your comments by the comment period deadline
identified.
II. Background of Wyoming's Submissions
On September 11, 2008 the State of Wyoming submitted to EPA two
formal revisions to Wyoming's State Implementation Plan (SIP). These
revisions amend Wyoming's Air Quality Standards and Regulations. In
particular, Wyoming has revised Chapter 1, Common Provisions, Section
5, Unavoidable equipment malfunction, and has added a new section--
Section 6, Credible evidence--to Chapter 1.
A. Chapter 1, Common Provisions, Section 5, Unavoidable Equipment
Malfunction
Wyoming has revised its unavoidable equipment malfunction rule in
response to a series of EPA actions. On November 16, 2000, the
Administrator of the EPA issued an order granting in part a petition to
object to Wyoming's issuance of a Title V permit. In the Matter of:
Pacificorp's Jim Bridger and Naughton Electric Utility Steam Generating
Plants, Petition No. VIII-00-1 (Nov. 16, 2000). In the order, the
Administrator directed EPA's regional office in Denver (EPA Region 8)
to review Wyoming's Abnormal Conditions and Equipment Malfunction rule.
On November 1, 2002, in another Title V petition order, the
Administrator repeated this direction. In the Matter of: Title V Permit
for Buckingham Lumber Company, Buckingham Lumber Mill, Petition No.
VIII-2002-01 (Nov. 1, 2002). After completing its review, EPA Region 8
identified for Wyoming deficiencies in the rule. Letter from Richard R.
Long, Director, Air and Radiation Program, EPA Region 8, to Dan Olson,
Administrator, Wyoming's Department of Environmental Quality (Jan. 30,
2003). EPA Region 8 noted that the rule did not conform to Clean Air
Act requirements to protect National Ambient Air Quality Standards
(NAAQS) and Prevention of Significant Deterioration (PSD) increments.
Specifically, the rule allowed an exemption from enforcement for excess
emissions that occurred during malfunctions and certain other
conditions. EPA's interpretation was and continues to be that the Clean
Air Act requires that all periods of excess emissions be treated as
violations that cannot be exempted from enforcement. EPA therefore
requested that the rule be revised.
On November 16, 2005, the Environmental Quality Council of the
Wyoming Department of Environmental Quality approved a revision to the
Abnormal Conditions and Equipment Malfunction rule. The revision
removed
[[Page 19888]]
the existing automatic exemption and replaced it with enforcement
discretion provisions for excess emissions caused by malfunctions. The
revision became State-effective January 30, 2006. On September 11,
2008, the Governor of the State of Wyoming submitted the revision to
Region 8.
B. Chapter 1, Common Provisions, Section 6, Credible Evidence
Wyoming has added the credible evidence section to its rules in
response to an EPA SIP call. On February 24, 1997, EPA revised its rule
governing the use of credible evidence in enforcement actions. 62 FR
8314. In parallel, EPA directed its Regional Offices to conduct a SIP
call to States in order to ensure consistency with the revised credible
evidence rule. On October 20, 1999, EPA Region 8 issued a SIP call to
Wyoming. In a letter from EPA Regional Administrator William P.
Yellowtail notifying Wyoming of the SIP call, EPA stated that the
Wyoming SIP did not comply with sections 110(a)(2)(A) and (C) of the
CAA because the SIP could be interpreted to limit the types of credible
evidence or information that could be used for determining compliance
and establishing violations.
On October 23, 2000, the Environmental Quality Council of the
Wyoming Department of Environmental Quality approved revisions to the
Wyoming Air Quality Standards and Regulations, including the addition
of a provision (Chapter 1, Common Provisions, Section 6, Credible
evidence) allowing for the use of credible evidence in enforcement
actions. The added provision became State-effective December 8, 2000.
On September 11, 2008, the Governor of the State of Wyoming submitted
the revision to Region 8.
III. EPA's Review of Wyoming's Submissions
To determine if Wyoming's submissions should be approved by EPA,
EPA must evaluate the submissions for consistency with the CAA and EPA
regulations.
A. Revision to Chapter 1, Common Provisions, Section 5, Unavoidable
Equipment Malfunction
EPA's interpretations of the Act regarding excess emissions caused
by equipment malfunctions are contained in several documents. Most
relevant to this action are the following documents: A memorandum dated
September 28, 1982, from Kathleen M. Bennett, Assistant Administrator
for Air, Noise, and Radiation, entitled ``Policy on Excess Emissions
During Startup, Shutdown, Maintenance, and Malfunctions''; a
clarification to that memorandum from Kathleen M. Bennett issued on
February 15, 1983; and a memorandum entitled ``State Implementation
Plans: Policy Regarding Excess Emissions During Malfunctions, Startup,
and Shutdown,'' from Steven A. Herman, Assistant Administrator for
Enforcement and Compliance Assurance, and Robert Perciasepe, Assistant
Administrator for Air and Radiation, dated September 20, 1999.\1\
---------------------------------------------------------------------------
\1\ The relevant interpretations were not affected by a
subsequent memorandum titled ``Reissuance of Clarification--State
Implementation Plans (SIPs): Policy Regarding Excess Emissions
During Malfunctions, Startup, and Shutdown,'' dated December 5,
2001, from Eric Schaeffer, Director, Office of Regulatory
Enforcement, Office of Enforcement and Compliance Assurance, and
John S. Seitz, Director, Office of Air Quality Planning and
Standards, Office of Air and Radiation.
---------------------------------------------------------------------------
As explained in these memoranda, excess emissions are those air
emission levels that exceed any applicable emission limitation. Because
excess emissions might aggravate air quality so as to prevent
attainment and maintenance of the NAAQS or jeopardize the PSD
increments, EPA views all periods of excess emissions as violations of
the applicable emission limitation. Therefore, EPA will disapprove all
SIP revisions that automatically exempt from enforcement excess
emissions claimed to result from an equipment malfunction. In addition,
EPA will disapprove SIP revisions that give discretion to a state
director to determine whether an instance of excess emissions is a
violation of an emission limitation, because such a determination could
bar EPA and citizens from enforcing applicable requirements.
Instead, under EPA's interpretations, if a state chooses to address
violations for excess emissions that occur as a result of claimed
malfunctions, the state may take two approaches. The first, the
``enforcement discretion'' approach, allows a state director to refrain
from taking enforcement action for a violation if certain criteria are
met. The second, the ``affirmative defense'' approach, allows a source
to avoid penalties if it can prove that certain conditions are met.
Wyoming has selected the enforcement discretion approach. Under
this approach, the state director, in evaluating whether to exercise
discretion to decline enforcement for a violation caused by an
unavoidable malfunction, should consider whether the following criteria
have been satisfied:
1. To the maximum extent practicable the air pollution control
equipment, process equipment, or processes were maintained and operated
in a manner consistent with good practice for minimizing emissions;
2. Repairs were made in an expeditious fashion when the operator
knew or should have known that applicable emission limitations were
being exceeded. Off-shift labor and overtime must have been utilized,
to the extent practicable, to ensure that such repairs were made as
expeditiously as practicable;
3. The amount and duration of the excess emissions (including any
bypass) were minimized to the maximum extent practicable during periods
of such emissions;
4. All possible steps were taken to minimize the impact of the
excess emissions on ambient air quality; and
5. The excess emissions are not part of a recurring pattern
indicative of inadequate design, operation, or maintenance.
We have evaluated Wyoming's enforcement discretion provisions for
excess emissions caused by unavoidable equipment malfunctions. The
provisions are consistent with EPA's interpretations of the CAA as
described in the memoranda above. Specifically, Chapter 1, Common
Provisions, section 5(b) gives the Wyoming Air Quality Division
discretion when deciding whether to ``pursue enforcement after
considering whether excess emissions resulted from an unavoidable
equipment malfunction.'' The Division is to make this decision by
evaluating, on a case-by-case basis, information to be submitted by the
source after an incident. The information submitted by the source and
considered by the Division is defined in section 5(a)(i)(A) and
generally parallels the criteria outlined in the Kathleen Bennett
memoranda discussed above. The source has the burden to provide
sufficient information to demonstrate that the Division should use its
discretion.
EPA's memoranda also discuss a point not explicitly addressed in
Wyoming's new rule. There is no language in the new rule explicitly
stating that, even when the Division exercises its discretion and
declines enforcement, that exercise of discretion does not bar EPA or
any citizen from taking an enforcement action for the violation.
However, there is also no language in the new rule explicitly creating
such a bar. EPA therefore interprets the rule, consistent with EPA's
interpretations of the CAA, as not barring EPA and citizen enforcement
for violation of applicable requirements when the Division declines
[[Page 19889]]
enforcement. Under this interpretation, the new rule is consistent with
the CAA. EPA is therefore approving the revisions to Chapter 1, Common
Provisions, Section 5.
B. Addition to Chapter 1, Common Provisions, Section 6, Credible
Evidence
On February 24, 1997, EPA promulgated regulations under sections
113(a) and 113(e)(1) of the CAA clarifying the use of non-reference
test data--``credible evidence''--in enforcement actions and compliance
certifications. 62 FR 8314. In particular, the regulations prohibit
state implementation plans from precluding the use of credible
evidence. The regulations state: ``For the purpose of submitting
compliance certifications or establishing whether or not a person has
violated or is in violation of any standard in this part, the plan must
not preclude the use, including the exclusive use, of any credible
evidence or information, relevant to whether a source would have been
in compliance with applicable requirements if the appropriate
performance or compliance test or procedure had been performed.'' 40
CFR 51.212(c).
EPA has reviewed Wyoming's new credible evidence rule. The new rule
mirrors the language in 40 CFR 51.212(c) quoted above and provides for
the use of credible evidence in enforcement actions and compliance
certifications. Therefore, it is consistent with the CAA and EPA
regulations. As a result, EPA is approving the addition of the new
credible evidence rule, Chapter 1, Common Provisions, Section 6,
Credible evidence, into Wyoming's SIP.
IV. Consideration of Section 110(l) of the CAA
Under section 110(l) of the Clean Air Act, EPA cannot approve a SIP
revision if the revision would interfere with any applicable
requirements concerning attainment and reasonable further progress
toward attainment of the NAAQS or any other applicable requirement of
the Act. The Wyoming SIP revisions that EPA approves today do not
interfere with attainment of the NAAQS or any other applicable
requirement of the Act. The first revision removes a provision from the
Wyoming SIP that provided an outright exemption from emission limits
during malfunctions. In place of the exemption, the SIP now provides--
in accordance with the CAA--that the Wyoming Air Quality Division may
exercise its enforcement discretion after considering whether excess
emissions resulted from an unavoidable equipment malfunction. In the
absence of the previous automatic exemption, sources will now have a
greater incentive to comply with their emission limits, which will
protect the NAAQS and increments to a greater degree than under the
previous rule. The second revision, providing for use of credible
evidence, also protects the NAAQS and increments to a greater degree by
allowing for enhanced enforcement of emissions limits. Therefore,
section 110(l) requirements are satisfied.
V. Final Action
EPA is approving SIP revisions that Wyoming submitted on September
11, 2008. The Environmental Quality Council of the Wyoming Department
of Environmental Quality adopted revisions to Chapter 1, Common
Provisions, Section 5, Unavoidable equipment malfunction on November
16, 2005; these revisions became State-effective on January 30, 2006.
The Council added Chapter 1, Common Provisions, Section 6, Credible
evidence, to the Wyoming Air Quality Standards and Regulations on
October 23, 2000; this addition became State-effective on December 8,
2000.
EPA is publishing this rule without prior proposal because the
Agency views this as a noncontroversial amendment and anticipates no
adverse comments; we are merely approving changes to Wyoming's air
rules that conform to the CAA and EPA regulations. However, in the
``Proposed Rules'' section of today's Federal Register publication, EPA
is 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 June 15, 2010 without further notice unless the Agency
receives adverse comments by May 17, 2010. If the EPA receives adverse
comments, EPA will publish a timely withdrawal in the Federal Register
informing the public that the rule will not take effect. EPA will
address all public comments 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 must do so at this
time. Please note that if EPA receives adverse comment on an amendment,
paragraph, or section of this rule and if that provision may be severed
from the remainder of the rule, EPA may adopt as final those provisions
of the rule that are not the subject of an adverse comment.
VI. Statutory and Executive Order Reviews
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 reviewing SIP submissions, EPA's role is to approve State
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus
[[Page 19890]]
standards (VCS), EPA has no authority to disapprove a SIP submission
for failure to use VCS. It would thus be inconsistent with applicable
law for EPA, when it reviews a SIP submission, to use VCS in place of a
SIP submission that otherwise satisfies the provisions of the Clean Air
Act. Thus, 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. section 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.
section 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 June 15, 2010. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action 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. Parties with objections to this direct final
rule are encouraged to file a comment in response to the parallel
notice of proposed rulemaking for this action published in the proposed
rules section of today's Federal Register, rather than file an
immediate petition for judicial review of this direct final rule, so
that EPA can withdraw this direct final rule and address the comment in
the proposed rulemaking. 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, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: April 1, 2010.
Carol L. Campbell,
Acting Deputy Regional Administrator, Region 8.
0
40 CFR part 52 is amended to read as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart ZZ--Wyoming
0
2. Section 52.2620 is amended by revising paragraph (b)(3); and the
table in paragraph (c)(1) is amended under Chapter 1 by revising the
entry for Section 5 and adding an entry for Section 6 to read as
follows:
Sec. 52.2620 Identification of plan.
* * * * *
(b) * * *
(3) Copies of the materials incorporated by reference may be
inspected at the Environmental Protection Agency, Region 8, 1595
Wynkoop Street, Denver, Colorado 80202-1129; the Environmental
Protection Agency, Air and Radiation Docket and Information Center, Air
Docket (6102), 1200 Pennsylvania Ave., NW., Washington, DC 20460; or
the National Archives and Records Administration (NARA). For
information on the availability of this material at NARA, call 202-741-
6030, or go to https://www.archives.gov/federal-register/cfr/ibr-locations.html.
(c) * * *
(1) * * *
----------------------------------------------------------------------------------------------------------------
State adopted and EPA approval date
State citation Title/subject effective date and citation \1\ Explanation
----------------------------------------------------------------------------------------------------------------
Chapter 1
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Section 5...................... Unavoidable 11/16/05, 1/30/06 4/16/10 [Insert
Equipment FR page number
Malfunction. where document
begins].
Section 6...................... Credible Evidence 10/23/00, 12/8/00 4/16/10 [Insert
FR page number
where document
begins].
* * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ In order to determine the EPA effective date for a specific provision that is listed in this table, consult
the Federal Register cited in this column for that particular provision.
[[Page 19891]]
* * * * *
[FR Doc. 2010-8405 Filed 4-15-10; 8:45 am]
BILLING CODE 6560-50-P