Approval and Disapproval and Promulgation of State Implementation Plan Revisions; Infrastructure Requirements for the 1997 8-Hour Ozone National Ambient Air Quality Standard; Wyoming, 44265-44271 [2011-18423]
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Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations
money. Other references included in
Regulations 1.25 and 30.7 will be taken up
when the Commission considers the
proposed rulemaking related to investment of
customer funds.
[FR Doc. 2011–18777 Filed 7–22–11; 8:45 am]
section) intended to indicate and,
insofar as possible, to define specific
hazards of a nature such that failure to
designate them may lead to accidental
injury to workers or the public, or both,
or to property damage.’’
BILLING CODE 6351–01–P
§ 1910.147
[Corrected]
2. On page 24698, in the second
column, in § 1910.147, in paragraph
(a)(1)(i), the first sentence ‘‘This
standard covers the servicing and
maintenance of machines and
equipment in which the energization or
start up of the machines or equipment,
or release of stored energy, could harm
employees’’ is corrected to read ‘‘This
standard covers the servicing and
maintenance of machines and
equipment in which the unexpected
energization or start up of the machines
or equipment, or release of stored
energy could cause injury to
employees.’’
■
DEPARTMENT OF LABOR
Occupational Safety and Health
Administration
29 CFR Part 1910
[Docket No. OSHA–S049–2006–0675
(Formerly Docket No. S–049)]
RIN 1218–AB50
General Working Conditions in
Shipyard Employment; Correction
AGENCY: Occupational Safety and Health
Administration (OSHA), Labor.
ACTION: Final rule; correction.
SUMMARY: The Occupational Safety and
Health Administration is correcting a
final rule on General Working
Conditions in Shipyard Employment
published in the Federal Register of
May 2, 2011 (76 FR 24576).
DATES: Effective August 1, 2011.
FOR FURTHER INFORMATION CONTACT:
Press inquiries: Frank Meilinger,
Office of Communications, OSHA, U.S.
Department of Labor, Room N–3647,
200 Constitution Avenue, NW.,
Washington, DC 20210; telephone: (202)
693–1999.
General and technical information:
Joseph V. Daddura, Director, Office of
Maritime, Directorate of Standards and
Guidance, OSHA, U.S. Department of
Labor, Room N–3621, 200 Constitution
Avenue, NW., Washington, DC 20210;
telephone (202) 693–2222.
SUPPLEMENTARY INFORMATION:
In FR Doc. 2011–9567 appearing on
page 24576 in the Federal Register of
Monday, May 2, 2011, the following
corrections are made:
§ 1910.145
[Corrected]
1. On page 24698, in the first column,
in § 1910.145, in paragraph (a)(1), the
first sentence ‘‘These specifications
apply to the design, application, and use
of signs or symbols (as included in
paragraphs (c) through (e) of this
section) that indicate and, insofar as
possible, define specific hazards that
could harm workers or the public, or
both, or to property damage’’ is
corrected to read ‘‘These specifications
apply to the design, application, and use
of signs or symbols (as included in
paragraphs (c) through (e) of this
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■
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Signed at Washington, DC, on July 19,
2011.
David Michaels,
Assistant Secretary of Labor for Occupational
Safety and Health.
[FR Doc. 2011–18601 Filed 7–22–11; 8:45 am]
BILLING CODE 4510–26–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R08–OAR–2010–0303; FRL–9441–5]
Approval and Disapproval and
Promulgation of State Implementation
Plan Revisions; Infrastructure
Requirements for the 1997 8-Hour
Ozone National Ambient Air Quality
Standard; Wyoming
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
EPA is partially approving
and partially disapproving the State
Implementation Plan (SIP) submission
from the State of Wyoming to
demonstrate that the SIP meets the
requirements of sections 110(a)(1) and
(2) of the Clean Air Act (CAA) for the
National Ambient Air Quality Standards
(NAAQS) promulgated for ozone on July
18, 1997. Section 110(a)(1) of the CAA
requires that each state, after a new or
revised NAAQS is promulgated, review
their SIPs to ensure that they meet the
requirements of the ‘‘infrastructure
elements’’ of section 110(a)(2). The State
of Wyoming submitted two
certifications, dated December 7, 2007
and December 10, 2009, that its SIP met
SUMMARY:
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these requirements for the 1997 ozone
NAAQS. The December 7, 2007
certification was determined to be
complete on March 27, 2008 (73 FR
16205). In addition, EPA is approving a
May 11, 2011 SIP submittal from the
State that revises the State’s Prevention
of Significant Deterioration (PSD)
program.
DATES: Effective Date: This final rule is
effective August 24, 2011.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–R08–OAR–2010–0303. All
documents in the docket are listed on
the https://www.regulations.gov Web
site. Although listed in the index, some
information is not publicly available,
e.g., Confidential Business Information
(CBI) or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available either electronically through
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, Mail Code 8P–AR,
1595 Wynkoop Street, Denver, Colorado
80202–1129. 303–312–6142,
dolan.kathy@epa.gov.
SUPPLEMENTARY INFORMATION:
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.
Table of Contents
I. Background
II. Comments
III. Final Action
IV. Statutory and Executive Order Reviews
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I. Background
On July 18, 1997, EPA promulgated
new NAAQS for ozone based on 8-hour
average concentrations. The 8-hour
averaging period replaced the previous
1-hour averaging period, and the level of
the NAAQS was changed from 0.12
parts per million (ppm) to 0.08 ppm (62
FR 38856). By statute, SIPs meeting the
requirements of sections 110(a)(1) and
(2) are to be submitted by states within
three years after promulgation of a new
or revised standard. Section 110(a)(2)
provides basic requirements for SIPs,
including emissions inventories,
monitoring, and modeling, to assure
attainment and maintenance of the
standards. These requirements are set
out in several ‘‘infrastructure elements,’’
listed in section 110(a)(2).
Section 110(a) imposes the obligation
upon states to make a SIP submission to
EPA for a new or revised NAAQS, and
the contents of that submission may
vary depending upon the facts and
circumstances. In particular, the data
and analytical tools available at the time
a state develops and submits its SIP for
a new or revised NAAQS affects the
content of the submission. The contents
of such SIP submissions may also vary
depending upon what provisions a
state’s existing SIP already contains. In
the case of the 1997 ozone NAAQS,
states typically have met the basic
program elements required in section
110(a)(2) through earlier SIP
submissions in connection with
previous NAAQS. In a guidance issued
on October 2, 2007, EPA noted that, to
the extent an existing SIP already meets
the section 110(a)(2) requirements,
states need only to certify that fact via
a letter to EPA.1
On March 27, 2008, EPA published a
final rule entitled, ‘‘Completeness
Findings for Section 110(a) State
Implementation Plans for the 8-hour
Ozone NAAQS’’ (73 FR 16205). In the
rule, EPA made a finding for each state
that it had submitted or had failed to
submit a complete SIP that provided the
basic program elements of section
110(a)(2) necessary to implement the
1997 8-hour ozone NAAQS. In
particular, EPA found that Wyoming
had submitted a complete SIP
(‘‘Infrastructure SIP’’) to meet these
requirements.
On May 23, 2011, EPA published a
notice of proposed rulemaking (NPR) for
the State of Wyoming (76 FR 29680) to
1 Memorandum from William T. Harnett,
Director, Air Quality Policy Division, ‘‘Guidance on
SIP Elements Required Under Sections 110(a)(1)
and (2) for the 1997 8-hour Ozone and PM2.5
National Ambient Air Quality Standards’’ (Oct. 2,
2007).
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act on the State’s Infrastructure SIP for
the 1997 ozone NAAQS. Specifically, in
the NPR EPA proposed approval of
Wyoming’s SIP as meeting the
requirements of section 110(a)(2)
elements (A), (B), (D)(ii), (E), (F), (G),
(H), (K), (L) and (M) with respect to the
1997 ozone NAAQS. EPA also proposed
approval of revisions to Wyoming Air
Quality Standards and Regulations
(WAQSR) Chapter 6, Section 4 (PSD)
from Wyoming’s May 11, 2011
submittal, specifically revisions which
meet the requirements the phase 2
implementation rule for the 1997 ozone
NAAQS (72 FR 71612, November 20,
2005), the NSR implementation rule for
PM2.5 (73 FR 28321, May 16, 2008), and
the inserted definition of ‘‘replacement
unit,’’ which reflects the language of 40
CFR 51.166 (b)(32)(i) through (iv). EPA
did not propose action on sections
110(a)(2)(D)(i), (I), and the visibility
protection requirement of section
110(a)(2)(J).2 EPA proposed to
disapprove 110(a)(2)(C) and (J) on the
basis that Wyoming’s SIP-approved PSD
program does not properly regulate
greenhouse gas (GHG) emissions.
On June 3, 2010, EPA promulgated
the ‘‘Prevention of Significant
Deterioration and Title V Greenhouse
Gas Tailoring Rule’’ (‘‘Tailoring Rule’’)
(75 FR 31514), setting out requirements
for application of PSD to emissions
sources of greenhouse gases (GHG). On
December 13, 2010, EPA issued a
finding of substantial inadequacy and
SIP call for seven states, including
Wyoming, on the basis that the states’
SIP-approved PSD programs did not
apply PSD to GHG-emitting sources as
required under the Tailoring Rule (75
FR 77698). Next, on December 29, 2010,
EPA issued a finding that the seven
states had failed to submit revisions to
their SIPs as necessary to correct this
inadequacy (75 FR 81874). Finally, on
December 30, 2010, EPA established a
federal implementation plan (FIP) in the
seven states to ensure that PSD permits
for sources emitting GHGs could be
issued in accordance with the Tailoring
Rule (75 FR 82246). As the Wyoming
PSD program is currently subject to a
finding of substantial inadequacy and
SIP call, and Wyoming had not taken
steps to remedy the inadequacy, EPA
proposed to disapprove infrastructure
elements 110(a)(2)(C) and (J) in the NPR
as each requires the SIP to contain a
PSD program that meets the
requirements of part C of title I of the
Act.
2 See the NPR (76 FR 29680) for further
explanation regarding the omission of elements
110(a)(2)(D)(i) and 110(a)(2)(I) from the proposal.
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Scope of Infrastructure SIPs
EPA is currently acting upon SIPs that
address the infrastructure requirements
of CAA section 110(a)(1) and (2) for
ozone and PM2.5 NAAQS for various
states across the country. Commenters
on EPA’s recent proposals for some
states raised concerns about EPA
statements that it was not addressing
certain substantive issues in the context
of acting on the infrastructure SIP
submissions.3 The commenters
specifically raised concerns involving
provisions in existing SIPs and with
EPA’s statements that it would address
two issues separately and not as part of
actions on the infrastructure SIP
submissions: (i) existing provisions
related to excess emissions during
periods of start-up, shutdown, or
malfunction at sources, that may be
contrary to the CAA and EPA’s policies
addressing such excess emissions
(‘‘SSM’’); and (ii) existing provisions
related to ‘‘director’s variance’’ or
‘‘director’s discretion’’ that purport to
permit revisions to SIP approved
emissions limits with limited public
process or without requiring further
approval by EPA, that may be contrary
to the CAA (‘‘director’s discretion’’).
EPA notes that there are two other
substantive issues for which EPA
likewise stated that it would address the
issues separately: (i) Existing provisions
for minor source new source review
programs that may be inconsistent with
the requirements of the CAA and EPA’s
regulations that pertain to such
programs (‘‘minor source new source
review (NSR)’’); and (ii) existing
provisions for PSD programs that may
be inconsistent with current
requirements of EPA’s ‘‘Final NSR
Improvement Rule,’’ 67 Fed. Reg. 80,186
(December 31, 2002), as amended by 72
FR 32,526 (June 13, 2007) (‘‘NSR
Reform’’). In light of the comments, EPA
now believes that its statements in
various proposed actions on
infrastructure SIPs with respect to these
four individual issues should be
explained in greater depth with respect
to these issues.
EPA intended the statements in the
proposals concerning these four issues
merely to be informational, and to
provide general notice of the potential
existence of provisions within the
existing SIPs of some states that might
3 See, Comments of Midwest Environmental
Defense Center, dated May 31, 2011. Docket # EPA–
R05–OAR–2007–1179 (adverse comments on
proposals for three states in Region 5). EPA notes
that these public comments on another proposal are
not relevant to this rulemaking and do not have to
be directly addressed in this rulemaking. EPA will
respond to these comments in the appropriate
rulemaking action to which they apply.
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require future corrective action. EPA did
not want states, regulated entities, or
members of the public to be under the
misconception that the Agency’s
approval of the infrastructure SIP
submission of a given state should be
interpreted as a reapproval of certain
types of provisions that might exist
buried in the larger existing SIP for such
state. Thus, for example, EPA explicitly
noted that the Agency believes that
some states may have existing SIP
approved SSM provisions that are
contrary to the CAA and EPA policy,
but that ‘‘in this rulemaking, EPA is not
proposing to approve or disapprove any
existing state provisions with regard to
excess emissions during SSM of
operations at facilities.’’ EPA further
explained, for informational purposes,
that ‘‘EPA plans to address such State
regulations in the future.’’ EPA made
similar statements, for similar reasons,
with respect to the director’s discretion,
minor source NSR, and NSR Reform
issues. EPA’s objective was to make
clear that approval of an infrastructure
SIP for these ozone and PM2.5 NAAQS
should not be construed as explicit or
implicit reapproval of any existing
provisions that relate to these four
substantive issues.
Unfortunately, the commenters and
others evidently interpreted these
statements to mean that EPA considered
action upon the SSM provisions and the
other three substantive issues to be
integral parts of acting on an
infrastructure SIP submission, and
therefore that EPA was merely
postponing taking final action on the
issue in the context of the infrastructure
SIPs. This was not EPA’s intention. To
the contrary, EPA only meant to convey
its awareness of the potential for certain
types of deficiencies in existing SIPs,
and to prevent any misunderstanding
that it was reapproving any such
existing provisions. EPA’s intention was
to convey its position that the statute
does not require that infrastructure SIPs
address these specific substantive issues
in existing SIPs and that these issues
may be dealt with separately, outside
the context of acting on the
infrastructure SIP submission of a state.
To be clear, EPA did not mean to imply
that it was not taking a full final agency
action on the infrastructure SIP
submission with respect to any
substantive issue that EPA considers to
be a required part of acting on such
submissions under section 110(k) or
under section 110(c). Given the
confusion evidently resulting from
EPA’s statements, however, we want to
explain more fully the Agency’s reasons
for concluding that these four potential
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substantive issues in existing SIPs may
be addressed separately.
The requirement for the SIP
submissions at issue arises out of CAA
section 110(a)(1). That provision
requires that states must make a SIP
submission ‘‘within 3 years (or such
shorter period as the Administrator may
prescribe) after the promulgation of a
national primary ambient air quality
standard (or any revision thereof)’’ and
that these SIPS are to provide for the
‘‘implementation, maintenance, and
enforcement’’ of such NAAQS. Section
110(a)(2) includes a list of specific
elements that ‘‘[e]ach such plan’’
submission must meet. EPA has
historically referred to these particular
submissions that states must make after
the promulgation of a new or revised
NAAQS as ‘‘infrastructure SIPs.’’ This
specific term does not appear in the
statute, but EPA uses the term to
distinguish this particular type of SIP
submission designed to address basic
structural requirements of a SIP from
other types of SIP submissions designed
to address other different requirements,
such as ‘‘nonattainment SIP’’
submissions required to address the
nonattainment planning requirements of
part D, ‘‘regional haze SIP’’ submissions
required to address the visibility
protection requirements of CAA section
169A, NSR permitting program
submissions required to address the
requirements of part D, and a host of
other specific types of SIP submissions
that address other specific matters.
Although section 110(a)(1) addresses
the timing and general requirements for
these infrastructure SIPs, and section
110(a)(2) provides more details
concerning the required contents of
these infrastructure SIPs, EPA believes
that many of the specific statutory
provisions are facially ambiguous. In
particular, the list of required elements
provided in section 110(a)(2) contains a
wide variety of disparate provisions,
some of which pertain to required legal
authority, some of which pertain to
required substantive provisions, and
some of which pertain to requirements
for both authority and substantive
provisions.4 Some of the elements of
section 110(a)(2) are relatively
straightforward, but others clearly
require interpretation by EPA through
rulemaking, or recommendations
4 For example, section 110(a)(2)(E) provides that
states must provide assurances that they have
adequate legal authority under state and local law
to carry out the SIP; section 110(a)(2)(C) provides
that states must have a substantive program to
address certain sources as required by part C of the
CAA; section 110(a)(2)(G) provides that states must
have both legal authority to address emergencies
and substantive contingency plans in the event of
such an emergency.
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through guidance, in order to give
specific meaning for a particular
NAAQS.5
Notwithstanding that section 110(a)(2)
states that ‘‘each’’ SIP submission must
meet the list of requirements therein,
EPA has long noted that this literal
reading of the statute is internally
inconsistent, insofar as section
110(a)(2)(I) pertains to nonattainment
SIP requirements that could not be met
on the schedule provided for these SIP
submissions in section 110(a)(1).6 This
illustrates that EPA must determine
which provisions of section 110(a)(2)
may be applicable for a given
infrastructure SIP submission.
Similarly, EPA has previously decided
that it could take action on different
parts of the larger, general
‘‘infrastructure SIP’’ for a given NAAQS
without concurrent action on all
subsections, such as section
110(a)(2)(D)(i), because the Agency
bifurcated the action on these latter
‘‘interstate transport’’ provisions within
section 110(a)(2) and worked with states
to address each of the four prongs of
section 110(a)(2)(D)(i) with substantive
administrative actions proceeding on
different tracks with different
schedules.7 This illustrates that EPA
may conclude that subdividing the
applicable requirements of section
110(a)(2) into separate SIP actions may
sometimes be appropriate for a given
NAAQS where a specific substantive
action is necessitated, beyond a mere
submission addressing basic structural
aspects of the SIP. Finally, EPA notes
that not every element of section
110(a)(2) would be relevant, or as
relevant, or relevant in the same way,
for each new or revised NAAQS and the
5 For example, section 110(a)(2)(D)(i) requires
EPA to be sure that each SIP contains adequate
provisions to prevent significant contribution to
nonattainment of the NAAQS in other states. This
provision contains numerous terms that require
substantial rulemaking by EPA in order to
determine such basic points as what constitutes
significant contribution. See, e.g., ‘‘Rule To Reduce
Interstate Transport of Fine Particulate Matter and
Ozone (Clean Air Interstate Rule); Revisions to Acid
Rain Program; Revisions to the NOX SIP Call; Final
Rule,’’ 70 FR 25162 (May 12, 2005) (defining,
among other things, the phrase ‘‘contribute
significantly to nonattainment’’).
6 See, e.g., Id., 70 FR 25,162, at 63–65 (May 12,
2005) (explaining relationship between timing
requirement of section 110(a)(2)(D) versus section
110(a)(2)(I)).
7 EPA issued separate guidance to states with
respect to SIP submissions to meet section
110(a)(2)(D)(i) for the 1997 ozone and 1997 PM2.5
NAAQS. See, ‘‘Guidance for State Implementation
Plan (SIP) Submissions to Meet Current
Outstanding Obligations Under Section
110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5
National Ambient Air Quality Standards,’’ from
William T. Harnett, Director, Air Quality Policy
Division OAQPS, to Regional Air Division Director,
Regions I–X, dated August 15, 2006.
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attendant infrastructure SIP submission
for that NAAQS. For example, the
monitoring requirements that might be
necessary for purposes of section
110(a)(2)(B) for one NAAQS could be
very different than what might be
necessary for a different pollutant. Thus,
the content of an infrastructure SIP
submission to meet this element from a
state might be very different for an
entirely new NAAQS, versus a minor
revision to an existing NAAQS.8
Similarly, EPA notes that other types
of SIP submissions required under the
statute also must meet the requirements
of section 110(a)(2), and this also
demonstrates the need to identify the
applicable elements for other SIP
submissions. For example,
nonattainment SIPs required by part D
likewise have to meet the relevant
subsections of section 110(a)(2) such as
section 110(a)(2)(A) or (E). By contrast,
it is clear that nonattainment SIPs
would not need to meet the portion of
section 110(a)(2)(C) that pertains to part
C, i.e., the PSD requirement applicable
in attainment areas. Nonattainment SIPs
required by part D also would not need
to address the requirements of section
110(a)(2)(G) with respect to emergency
episodes, as such requirements would
not be limited to nonattainment areas.
As this example illustrates, each type of
SIP submission may implicate some
subsections of section 110(a)(2) and not
others.
Given the potential for ambiguity of
the statutory language of section
110(a)(1) and (2), EPA believes that it is
appropriate for EPA to interpret that
language in the context of acting on the
infrastructure SIPs for a given NAAQS.
Because of the inherent ambiguity of the
list of requirements in section 110(a)(2),
EPA has adopted an approach in which
it reviews infrastructure SIPs against
this list of elements ‘‘as applicable.’’ In
other words, EPA assumes that Congress
could not have intended that each and
every SIP submission, regardless of the
purpose of the submission or the
NAAQS in question, would meet each
of the requirements, or meet each of
them in the same way. EPA elected to
use guidance to make recommendations
for infrastructure SIPs for these NAAQS.
On October 2, 2007, EPA issued
guidance making recommendations for
the infrastructure SIP submissions for
both the 1997 8-hour ozone NAAQS and
the 1997 PM2.5 NAAQS.9 Within this
8 For example, implementation of the 1997 PM
2.5
NAAQS required the deployment of a system of
new monitors to measure ambient levels of that new
indicator species for the new NAAQS.
9 See, ‘‘Guidance on SIP Elements Required
Under Section 110(a)(1) and (2) for the 1997 8-hour
Ozone and PM2.5 National Ambient Air Quality
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guidance document, EPA described the
duty of states to make these submissions
to meet what the Agency characterized
as the ‘‘infrastructure’’ elements for
SIPs, which it further described as the
‘‘basic SIP requirements, including
emissions inventories, monitoring, and
modeling to assure attainment and
maintenance of the standards.’’ 10 As
further identification of these basic
structural SIP requirements,
‘‘attachment A’’ to the guidance
document included a short description
of the various elements of section
110(a)(2) and additional information
about the types of issues that EPA
considered germane in the context of
such infrastructure SIPs. EPA
emphasized that the description of the
basic requirements listed on attachment
A was not intended ‘‘to constitute an
interpretation of ’’ the requirements, and
was merely a ‘‘brief description of the
required elements.’’ 11 EPA also stated
its belief that with one exception, these
requirements were ‘‘relatively self
explanatory, and past experience with
SIPs for other NAAQS should enable
States to meet these requirements with
assistance from EPA Regions.’’ 12 For the
one exception to that general
assumption, however, i.e., how states
should proceed with respect to the
requirements of section 110(a)(2)(G) for
the 1997 PM2.5 NAAQS, EPA gave much
more specific recommendations. But for
other infrastructure SIP submittals, and
for certain elements of the submittals for
the 1997 PM2.5 NAAQS, EPA assumed
that each state would work with its
corresponding EPA regional office to
refine the scope of a state’s submittal
based on an assessment of how the
requirements of section 110(a)(2) should
reasonably apply to the basic structure
of the SIP for the NAAQS in question.
Significantly, the 2007 Guidance did
not explicitly refer to the SSM,
director’s discretion, minor source NSR,
Standards,’’ from William T. Harnett, Director Air
Quality Policy Division, to Air Division Directors,
Regions I–X, dated October 2, 2007 (the ‘‘2007
Guidance’’). EPA issued comparable guidance for
the 2006 PM2.5 NAAQS entitled ‘‘Guidance on SIP
Elements Required Under Sections 110(a)(1) and (2)
for the 2006 24-Hour Fine Particle (PM2.5) National
Ambient Air Quality Standards (NAAQS),’’ from
William T, Harnett, Director Air Quality Policy
Division, to Regional Air Division Directors,
Regions I–X, dated September 25, 2009 (the ‘‘2009
Guidance’’).
10 Id., at page 2.
11 Id., at attachment A, page 1.
12 Id., at page 4. In retrospect, the concerns raised
by commenters with respect to EPA’s approach to
some substantive issues indicates that the statute is
not so ‘‘self explanatory,’’ and indeed is sufficiently
ambiguous that EPA needs to interpret it in order
to explain why these substantive issues do not need
to be addressed in the context of infrastructure SIPs
and may be addressed at other times and by other
means.
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or NSR Reform issues as among specific
substantive issues EPA expected states
to address in the context of the
infrastructure SIPs, nor did EPA give
any more specific recommendations
with respect to how states might address
such issues even if they elected to do so.
The SSM and director’s discretion
issues implicate section 110(a)(2)(A),
and the minor source NSR and NSR
Reform issues implicate section
110(a)(2)(C). In the 2007 Guidance,
however, EPA did not indicate to states
that it intended to interpret these
provisions as requiring a substantive
submission to address these specific
issues in the context of the
infrastructure SIPs for these NAAQS.
Instead, EPA’s 2007 Guidance merely
indicated its belief that the states should
make submissions in which they
established that they have the basic SIP
structure necessary to implement,
maintain, and enforce the NAAQS. EPA
believes that states can establish that
they have the basic SIP structure,
notwithstanding that there may be
potential deficiencies within the
existing SIP. Thus, EPA’s proposals
mentioned these issues not because the
Agency considers them issues that must
be addressed in the context of an
infrastructure SIP as required by section
110(a)(1) and (2), but rather because
EPA wanted to be clear that it considers
these potential existing SIP problems as
separate from the pending infrastructure
SIP actions.
EPA believes that this approach to the
infrastructure SIP requirement is
reasonable, because it would not be
feasible to read section 110(a)(1) and (2)
to require a top to bottom, stem to stern,
review of each and every provision of an
existing SIP merely for purposes of
assuring that the state in question has
the basic structural elements for a
functioning SIP for a new or revised
NAAQS. Because SIPs have grown by
accretion over the decades as statutory
and regulatory requirements under the
CAA have evolved, they may include
some outmoded provisions and
historical artifacts that, while not fully
up to date, nevertheless may not pose a
significant problem for the purposes of
‘‘implementation, maintenance, and
enforcement’’ of a new or revised
NAAQS when EPA considers the overall
effectiveness of the SIP. To the contrary,
EPA believes that a better approach is
for EPA to determine which specific SIP
elements from section 110(a)(2) are
applicable to an infrastructure SIP for a
given NAAQS, and to focus attention on
those elements that are most likely to
need a specific SIP revision in light of
the new or revised NAAQS. Thus, for
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example, EPA’s 2007 Guidance
specifically directed states to focus on
the requirements of section 110(a)(2)(G)
for the 1997 PM2.5 NAAQS because of
the absence of underlying EPA
regulations for emergency episodes for
this NAAQS and an anticipated absence
of relevant provisions in existing SIPs.
Finally, EPA believes that its
approach is a reasonable reading of
section 110(a)(1) and (2) because the
statute provides other avenues and
mechanisms to address specific
substantive deficiencies in existing SIPs.
These other statutory tools allow the
Agency to take appropriate tailored
action, depending upon the nature and
severity of the alleged SIP deficiency.
Section 110(k)(5) authorizes EPA to
issue a ‘‘SIP call’’ whenever the Agency
determines that a SIP is substantially
inadequate to attain or maintain the
NAAQS, to mitigate interstate transport,
or otherwise to comply with the CAA.13
Section 110(k)(6) authorizes EPA to
correct errors in past actions, such as
past approvals of SIP submissions.14
Significantly, EPA’s determination that
an action on the infrastructure SIP is not
the appropriate time and place to
address all potential existing SIP
problems does not preclude the
Agency’s subsequent reliance on
provisions in section 110(a)(2) as part of
the basis for action at a later time. For
example, although it may not be
appropriate to require a state to
eliminate all existing inappropriate
director’s discretion provisions in the
course of acting on the infrastructure
SIP, EPA believes that section
110(a)(2)(A) may be among the statutory
bases that the Agency cites in the course
of addressing the issue in a subsequent
action.15
13 EPA has recently issued a SIP call to rectify a
specific SIP deficiency related to the SSM issue.
See, ‘‘Finding of Substantial Inadequacy of
Implementation Plan; Call for Utah State
Implementation Plan Revision,’’ 74 FR 21,639
(April 18, 2011).
14 EPA has recently utilized this authority to
correct errors in past actions on SIP submissions
related to PSD programs. See, ‘‘Limitation of
Approval of Prevention of Significant Deterioration
Provisions Concerning Greenhouse Gas EmittingSources in State Implementation Plans; Final Rule,’’
75 FR 82,536 (Dec. 30, 2010). EPA has previously
used its authority under CAA 110(k)(6) to remove
numerous other SIP provisions that the Agency
determined it had approved in error. See, e.g., 61
FR 38,664 (July 25, 1996) and 62 FR 34,641 (June
27, 1997) (corrections to American Samoa, Arizona,
California, Hawaii, and Nevada SIPs); 69 FR 67,062
(November 16, 2004) (corrections to California SIP);
and 74 FR 57,051 (November 3, 2009) (corrections
to Arizona and Nevada SIPs).
15 EPA has recently disapproved a SIP submission
from Colorado on the grounds that it would have
included a director’s discretion provision
inconsistent with CAA requirements, including
section 110(a)(2)(A). See, e.g., 75 FR 42,342 at
42,344 (July 21, 2010) (proposed disapproval of
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II. Response to Comments
EPA received one letter on June 22,
2011 containing comments from
WildEarth Guardians (WEG), an
environmental organization. The
significant comments made in WEG’s
June 22, 2011 letter and EPA’s responses
to those comments are given below.
Comment No. 1: The commenter
expressed concern that the Wyoming
SIP is failing to maintain the 1997 8hour ozone NAAQS in Sublette County.
As evidence, the commenter cited data
from three monitors in Sublette County.
The commenter argued that the data
establish the Wyoming SIP is failing to
meet the requirements of CAA section
110(a)(1) and that EPA cannot approve
the Wyoming infrastructure SIP for the
1997 ozone NAAQS as a result.
EPA Response: EPA disagrees with
the commenter’s view that the monitor
data presented by the commenter has a
bearing on EPA’s action on the State’s
infrastructure SIP submission. First,
there are currently no nonattainment
areas designated in Wyoming for the
1997 8-hour ozone NAAQS. Thus, the
State is not currently under an
obligation to submit a SIP to meet the
requirements of Part D of title I. More
importantly, as explained in the NPR,
Part D requirements are outside the
scope of this action. EPA therefore
disagrees with the assertion that, as a
result of the cited monitoring data, EPA
cannot approve the Wyoming
infrastructure SIP for the 1997 ozone
NAAQS.
Comment No. 2: The commenter
asserted that the Wyoming SIP does not
meet the monitoring requirements of 40
CFR part 58 for the 1997 8-hour ozone
NAAQS, and that EPA should therefore
disapprove the Wyoming infrastructure
SIP for element 110(a)(2)(B). The
commenter argued that because the
cities of Casper and Cheyenne each have
an urbanized population greater than
50,000, both areas are required to have
ozone monitors under 40 CFR part 58,
Appendix D. The commenter concluded
that, as neither city contains an ozone
monitor, Wyoming’s SIP does not fulfill
the requirements of 110(a)(2)(B). The
commenter further argued that a
discussion of monitoring in Pinedale,
Casper, Rock Springs, and Gillette in a
recent Wyoming Monitoring Network
Plan demonstrates a need for ‘‘a more
expansive network’’ of ozone monitors
in the State.
EPA Response: EPA disagrees with
this commenter’s conclusion with
respect to whether the monitoring
network required by the Wyoming SIP
director’s discretion provisions); 76 FR 4,540 (Jan.
26, 2011) (final disapproval of such provisions).
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meets the current requirements. Table
D–2 in Appendix D to 40 CFR part 58
sets the minimum number of required
State and Local Air Monitoring Stations
(SLAMS) for ozone. Footnote 4 to the
table explicitly indicates that minimum
monitoring requirements in the last
column should apply in the absence of
a design value. While both Casper and
Cheyenne have populations greater than
50,000 (but less than 350,000), they lack
ozone design values at this time.
Therefore, the minimum number of
required SLAMS monitors for ozone for
Casper and Cheyenne is zero, and the
current monitoring network, with
respect to those two cities, meets the
current requirements of 40 CFR part 58,
Appendix D for ozone. The 2010
network assessment cited by the
commenter and the 2011 network plan
linked to by the commenter do not
provide any information to the contrary.
EPA therefore disagrees with the
commenter’s conclusion that the State’s
infrastructure SIP is not approvable at
this time.
EPA notes, however, that it has
proposed revisions to the current
monitoring requirements for ozone. On
July 16, 2009, EPA proposed to change
the monitoring requirements, in part to
insure that smaller metropolitan areas
with populations between 50,000 and
350,000 that currently do not have
ozone monitors will get them, in order
to assure the health benefits of the
NAAQS in these areas.16 If EPA
finalizes the proposed revisions to the
monitoring requirements, this would
help to address the concerns of the
commenter.
Comment No. 3: The commenter
expressed concern that monitoring is
only required from May to September,
whereas areas such as Sublette County
have maximum ozone concentrations in
the winter months. The commenter
argued that EPA must assure the
Wyoming SIP requires monitoring
during the wintertime. According to the
commenter, the failure to monitor in the
winter months would be grounds for
disapproval of the infrastructure SIP
under section 110(a)(2)(B).
EPA Response: EPA is concerned with
the wintertime ozone issues in western
states. However, with respect to the
season during which monitoring is
currently required, the required ozone
monitoring seasons are provided in 40
CFR part 58, Appendix D, which
currently specifies monitoring from May
through September. The proposed
revision to the ozone monitoring
16 See, ‘‘Ambient Ozone Monitoring Regulations:
Revisions to Network Design Requirements,’’ 74 FR
34525, at 34527–28 (July 16, 2009).
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requirements discussed in the response
to comment 2 above would also revise
the ozone monitoring season for
Wyoming (74 FR at 34538). If EPA
finalizes the proposed revision to the
ozone monitoring season for Wyoming,
the monitoring season will be extended
and EPA anticipates that this would
help to address the underlying concern
of the commenter. At this point,
however, Wyoming complies with the
existing monitoring season requirements
of Appendix D. Thus, the comment
gives no basis for EPA to change its
proposed approval of the Wyoming
infrastructure SIP for element
110(a)(2)(B) for the 1997 8-hour ozone
NAAQS.
Comment No. 4: The commenter
expressed concern that Wyoming’s title
V program does not increase permit fees
each year in accordance with the
Consumer Price Index as required by
title V of the CAA, citing 42 U.S.C.
7661a(b)(3)(B)(v) and 40 CFR
70.9(b)(2)(iv). The commenter argues
that this creates an issue under section
110(a)(2)(L) that precludes approval of
the State’s infrastructure SIP.
EPA Response: EPA disagrees with
this comment. As stated in the text of
the section, the fees specified in
110(a)(2)(L) are no longer applicable to
title V operating permit programs after
approval of such programs. As noted in
the NPR, final approval of the title V
operating permit program became
effective April 23, 1999 (64 FR 8523,
Feb. 22, 1990). Therefore, EPA
concludes that the Wyoming
infrastructure SIP for the 1997 8-hour
ozone NAAQS meets the requirements
of section 110(a)(2)(L) with respect to
the title V program.
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III. Final Action
In this action, EPA is approving the
following section 110(a)(2)
infrastructure elements for Wyoming for
the 1997 ozone NAAQS: (A), (B), (D)(ii),
(E), (F), (G), (H), (K), (L), and (M). EPA
is also approving Wyoming’s May 11,
2011 SIP submittal that revises the
State’s PSD program.
In this action, EPA is disapproving
section 110(a)(2)(C) and (J) for the 1997
ozone NAAQS.
IV. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
Act and applicable Federal regulations
(42 U.S.C. 7410(k), 40 CFR 52.02(a)).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
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provided that they meet the criteria of
the CAA. Accordingly, this action
merely approves some state law as
meeting Federal requirements and
disapproves other state law because it
does not meet Federal requirements;
this action does not impose additional
requirements beyond those imposed by
state law. For that reason, this action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Order 12866 (58 FR 51735,
October 4, 1993);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act
(5 U.S.C. 601 et seq.);
• 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);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999); is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and,
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this rule does not have
Tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
not approved to apply in Indian country
located in the State, and EPA notes that
it will not impose substantial direct
costs on Tribal governments or preempt
Tribal law.
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
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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 action 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 September 23,
2011. 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. 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: June 30, 2011.
James B. Martin,
Regional Administrator, Region 8.
40 CFR part 52 is amended as follows:
PART 52—[AMENDED]
1. The authority citation for Part 52
continues to read as follows:
■
Authority: 2 U.S.C. 7401 et seq.
Subpart ZZ—Wyoming
2. Section 52.2620 is amended by:
a. In paragraph (c)(1), revising the
entry under Chapter 6 for ‘‘Section 4’’.
■ b. In paragraph (e), add an entry for
‘‘XIX’’, Section 110(a)(2) Infrastructure
Requirements for the 1997 8-Hour
Ozone NAAQS.
■
■
§ 52.2620
*
Identification of plan.
*
*
(c) * * *
(1) * * *
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*
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State Citation
State adopted and
effective date
Title/subject
*
*
*
EPA approval date and
citation1
*
*
Explanations
*
*
*
*
6/30/11, 7/25/11 [Insert
page number where the
document begins].
*
Chapter 6
*
Section 4 ............................
*
*
Prevention of Significant
Deterioration.
*
*
*
7/8/10 and 9/7/10 ..............
*
*
*
*
*
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.
*
*
*
*
*
(e) * * *
Name of nonregulatory SP
provision
*
XIX. Section 110(a)(2) Infrastructure Requirements for the 1997 8hour Ozone NAAQS.
Applicable geographic or
non-attainment area
State submittal
date/adopted date
EPA approval date and
citation 3
*
*
Statewide ..........................
*
12/7/2007 and 12/10/2007
*
*
6/30/11, 7/25/11 [Insert
page number where the
document begins].
Explanation
*
3 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.
[FR Doc. 2011–18423 Filed 7–22–11; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R06–OAR–2011–0426; FRL–9442–7]
Approval and Promulgation of
Implementation Plans; Texas;
Revisions to Permits by Rule and
Regulations for Control of Air Pollution
by Permits for New Construction or
Modification
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AGENCY: Environmental Protection
Agency (EPA).
ACTION: Direct final rule.
SUMMARY: EPA is taking a direct final
action to approve portions of three
revisions to the Texas State
Implementation Plan (SIP) submitted by
the State of Texas on August 31, 1993,
July 22, 1998, and October 5, 2010.
These revisions amend existing sections
and create new sections in Title 30 of
the Texas Administrative Code (TAC),
Chapter 116—Control of Air Pollution
by Permits for New Construction or
Modification. The August 31, 1993,
revision creates two new sections at
116.174 and 116.175 for the use of
emission reductions as offsets in new
source review permitting. The July 22,
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1998, revision creates new section
116.116(f) allowing for the use of
Discrete Emission Reduction Credits
(DERC) to exceed emission limits in
permits (permit allowables) and amends
section 116.174 to update internal
citations to other Texas regulations. The
October 5, 2010, revision amends
section 116.116(f) to update internal
citations to other Texas regulations. EPA
has determined that these SIP revisions
comply with the Clean Air Act and EPA
regulations and are consistent with EPA
policies. This action is being taken
under section 110 and parts C and D of
the Federal Clean Air Act (the Act or
CAA).
DATES: This direct final rule is effective
on September 23, 2011 without further
notice, unless EPA receives relevant
adverse comment by August 24, 2011. If
EPA receives such comment, EPA will
publish a timely withdrawal in the
Federal Register informing the public
that this rule will not take effect.
Submit your comments,
identified by Docket ID No. EPA–R06–
OAR–2011–0426, by one of the
following methods:
(1) https://www.regulations.gov:
Follow the on-line instructions for
submitting comments.
(2) E-mail: Ms. Erica Le Doux at
ledoux.erica@epa.gov.
ADDRESSES:
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(3) Fax: Ms. Erica Le Doux, Air
Permits Section (6PD–R), at fax number
214–665–6762.
(4) Mail: Ms. Erica Le Doux, Air
Permits Section (6PD–R), Environmental
Protection Agency, 1445 Ross Avenue,
Suite 1200, Dallas, Texas 75202–2733.
(5) Hand or Courier Delivery: Ms.
Erica Le Doux, Air Permits Section
(6PD–R), Environmental Protection
Agency, 1445 Ross Avenue, Suite 1200,
Dallas, Texas 75202–2733. Such
deliveries are accepted only between the
hours of 8:30 AM and 4:30 PM
weekdays except for legal holidays.
Special arrangements should be made
for deliveries of boxed information.
Instructions: Direct your comments to
Docket ID No. EPA–R06–OAR–2011–
0426. 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
the disclosure of which is restricted by
statute. Do not submit information
through https://www.regulations.gov or
e-mail, if you believe that it is CBI or
otherwise protected from disclosure.
The https://www.regulations.gov Web
site is an ‘‘anonymous access’’ system,
which means that EPA will not know
your identity or contact information
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]]>Agencies
[Federal Register Volume 76, Number 142 (Monday, July 25, 2011)]
[Rules and Regulations]
[Pages 44265-44271]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-18423]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2010-0303; FRL-9441-5]
Approval and Disapproval and Promulgation of State Implementation
Plan Revisions; Infrastructure Requirements for the 1997 8-Hour Ozone
National Ambient Air Quality Standard; Wyoming
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is partially approving and partially disapproving the
State Implementation Plan (SIP) submission from the State of Wyoming to
demonstrate that the SIP meets the requirements of sections 110(a)(1)
and (2) of the Clean Air Act (CAA) for the National Ambient Air Quality
Standards (NAAQS) promulgated for ozone on July 18, 1997. Section
110(a)(1) of the CAA requires that each state, after a new or revised
NAAQS is promulgated, review their SIPs to ensure that they meet the
requirements of the ``infrastructure elements'' of section 110(a)(2).
The State of Wyoming submitted two certifications, dated December 7,
2007 and December 10, 2009, that its SIP met these requirements for the
1997 ozone NAAQS. The December 7, 2007 certification was determined to
be complete on March 27, 2008 (73 FR 16205). In addition, EPA is
approving a May 11, 2011 SIP submittal from the State that revises the
State's Prevention of Significant Deterioration (PSD) program.
DATES: Effective Date: This final rule is effective August 24, 2011.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R08-OAR-2010-0303. All documents in the docket are listed on
the https://www.regulations.gov Web site. Although listed in the index,
some information is not publicly available, e.g., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the Internet and will be publicly available only in hard
copy form. Publicly available docket materials are available either
electronically through 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, Mail Code 8P-AR, 1595
Wynkoop Street, Denver, Colorado 80202-1129. 303-312-6142,
dolan.kathy@epa.gov.
SUPPLEMENTARY INFORMATION:
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.
Table of Contents
I. Background
II. Comments
III. Final Action
IV. Statutory and Executive Order Reviews
[[Page 44266]]
I. Background
On July 18, 1997, EPA promulgated new NAAQS for ozone based on 8-
hour average concentrations. The 8-hour averaging period replaced the
previous 1-hour averaging period, and the level of the NAAQS was
changed from 0.12 parts per million (ppm) to 0.08 ppm (62 FR 38856). By
statute, SIPs meeting the requirements of sections 110(a)(1) and (2)
are to be submitted by states within three years after promulgation of
a new or revised standard. Section 110(a)(2) provides basic
requirements for SIPs, including emissions inventories, monitoring, and
modeling, to assure attainment and maintenance of the standards. These
requirements are set out in several ``infrastructure elements,'' listed
in section 110(a)(2).
Section 110(a) imposes the obligation upon states to make a SIP
submission to EPA for a new or revised NAAQS, and the contents of that
submission may vary depending upon the facts and circumstances. In
particular, the data and analytical tools available at the time a state
develops and submits its SIP for a new or revised NAAQS affects the
content of the submission. The contents of such SIP submissions may
also vary depending upon what provisions a state's existing SIP already
contains. In the case of the 1997 ozone NAAQS, states typically have
met the basic program elements required in section 110(a)(2) through
earlier SIP submissions in connection with previous NAAQS. In a
guidance issued on October 2, 2007, EPA noted that, to the extent an
existing SIP already meets the section 110(a)(2) requirements, states
need only to certify that fact via a letter to EPA.\1\
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\1\ Memorandum from William T. Harnett, Director, Air Quality
Policy Division, ``Guidance on SIP Elements Required Under Sections
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5
National Ambient Air Quality Standards'' (Oct. 2, 2007).
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On March 27, 2008, EPA published a final rule entitled,
``Completeness Findings for Section 110(a) State Implementation Plans
for the 8-hour Ozone NAAQS'' (73 FR 16205). In the rule, EPA made a
finding for each state that it had submitted or had failed to submit a
complete SIP that provided the basic program elements of section
110(a)(2) necessary to implement the 1997 8-hour ozone NAAQS. In
particular, EPA found that Wyoming had submitted a complete SIP
(``Infrastructure SIP'') to meet these requirements.
On May 23, 2011, EPA published a notice of proposed rulemaking
(NPR) for the State of Wyoming (76 FR 29680) to act on the State's
Infrastructure SIP for the 1997 ozone NAAQS. Specifically, in the NPR
EPA proposed approval of Wyoming's SIP as meeting the requirements of
section 110(a)(2) elements (A), (B), (D)(ii), (E), (F), (G), (H), (K),
(L) and (M) with respect to the 1997 ozone NAAQS. EPA also proposed
approval of revisions to Wyoming Air Quality Standards and Regulations
(WAQSR) Chapter 6, Section 4 (PSD) from Wyoming's May 11, 2011
submittal, specifically revisions which meet the requirements the phase
2 implementation rule for the 1997 ozone NAAQS (72 FR 71612, November
20, 2005), the NSR implementation rule for PM2.5 (73 FR
28321, May 16, 2008), and the inserted definition of ``replacement
unit,'' which reflects the language of 40 CFR 51.166 (b)(32)(i) through
(iv). EPA did not propose action on sections 110(a)(2)(D)(i), (I), and
the visibility protection requirement of section 110(a)(2)(J).\2\ EPA
proposed to disapprove 110(a)(2)(C) and (J) on the basis that Wyoming's
SIP-approved PSD program does not properly regulate greenhouse gas
(GHG) emissions.
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\2\ See the NPR (76 FR 29680) for further explanation regarding
the omission of elements 110(a)(2)(D)(i) and 110(a)(2)(I) from the
proposal.
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On June 3, 2010, EPA promulgated the ``Prevention of Significant
Deterioration and Title V Greenhouse Gas Tailoring Rule'' (``Tailoring
Rule'') (75 FR 31514), setting out requirements for application of PSD
to emissions sources of greenhouse gases (GHG). On December 13, 2010,
EPA issued a finding of substantial inadequacy and SIP call for seven
states, including Wyoming, on the basis that the states' SIP-approved
PSD programs did not apply PSD to GHG-emitting sources as required
under the Tailoring Rule (75 FR 77698). Next, on December 29, 2010, EPA
issued a finding that the seven states had failed to submit revisions
to their SIPs as necessary to correct this inadequacy (75 FR 81874).
Finally, on December 30, 2010, EPA established a federal implementation
plan (FIP) in the seven states to ensure that PSD permits for sources
emitting GHGs could be issued in accordance with the Tailoring Rule (75
FR 82246). As the Wyoming PSD program is currently subject to a finding
of substantial inadequacy and SIP call, and Wyoming had not taken steps
to remedy the inadequacy, EPA proposed to disapprove infrastructure
elements 110(a)(2)(C) and (J) in the NPR as each requires the SIP to
contain a PSD program that meets the requirements of part C of title I
of the Act.
Scope of Infrastructure SIPs
EPA is currently acting upon SIPs that address the infrastructure
requirements of CAA section 110(a)(1) and (2) for ozone and
PM2.5 NAAQS for various states across the country.
Commenters on EPA's recent proposals for some states raised concerns
about EPA statements that it was not addressing certain substantive
issues in the context of acting on the infrastructure SIP
submissions.\3\ The commenters specifically raised concerns involving
provisions in existing SIPs and with EPA's statements that it would
address two issues separately and not as part of actions on the
infrastructure SIP submissions: (i) existing provisions related to
excess emissions during periods of start-up, shutdown, or malfunction
at sources, that may be contrary to the CAA and EPA's policies
addressing such excess emissions (``SSM''); and (ii) existing
provisions related to ``director's variance'' or ``director's
discretion'' that purport to permit revisions to SIP approved emissions
limits with limited public process or without requiring further
approval by EPA, that may be contrary to the CAA (``director's
discretion''). EPA notes that there are two other substantive issues
for which EPA likewise stated that it would address the issues
separately: (i) Existing provisions for minor source new source review
programs that may be inconsistent with the requirements of the CAA and
EPA's regulations that pertain to such programs (``minor source new
source review (NSR)''); and (ii) existing provisions for PSD programs
that may be inconsistent with current requirements of EPA's ``Final NSR
Improvement Rule,'' 67 Fed. Reg. 80,186 (December 31, 2002), as amended
by 72 FR 32,526 (June 13, 2007) (``NSR Reform''). In light of the
comments, EPA now believes that its statements in various proposed
actions on infrastructure SIPs with respect to these four individual
issues should be explained in greater depth with respect to these
issues.
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\3\ See, Comments of Midwest Environmental Defense Center, dated
May 31, 2011. Docket EPA-R05-OAR-2007-1179 (adverse
comments on proposals for three states in Region 5). EPA notes that
these public comments on another proposal are not relevant to this
rulemaking and do not have to be directly addressed in this
rulemaking. EPA will respond to these comments in the appropriate
rulemaking action to which they apply.
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EPA intended the statements in the proposals concerning these four
issues merely to be informational, and to provide general notice of the
potential existence of provisions within the existing SIPs of some
states that might
[[Page 44267]]
require future corrective action. EPA did not want states, regulated
entities, or members of the public to be under the misconception that
the Agency's approval of the infrastructure SIP submission of a given
state should be interpreted as a reapproval of certain types of
provisions that might exist buried in the larger existing SIP for such
state. Thus, for example, EPA explicitly noted that the Agency believes
that some states may have existing SIP approved SSM provisions that are
contrary to the CAA and EPA policy, but that ``in this rulemaking, EPA
is not proposing to approve or disapprove any existing state provisions
with regard to excess emissions during SSM of operations at
facilities.'' EPA further explained, for informational purposes, that
``EPA plans to address such State regulations in the future.'' EPA made
similar statements, for similar reasons, with respect to the director's
discretion, minor source NSR, and NSR Reform issues. EPA's objective
was to make clear that approval of an infrastructure SIP for these
ozone and PM2.5 NAAQS should not be construed as explicit or
implicit reapproval of any existing provisions that relate to these
four substantive issues.
Unfortunately, the commenters and others evidently interpreted
these statements to mean that EPA considered action upon the SSM
provisions and the other three substantive issues to be integral parts
of acting on an infrastructure SIP submission, and therefore that EPA
was merely postponing taking final action on the issue in the context
of the infrastructure SIPs. This was not EPA's intention. To the
contrary, EPA only meant to convey its awareness of the potential for
certain types of deficiencies in existing SIPs, and to prevent any
misunderstanding that it was reapproving any such existing provisions.
EPA's intention was to convey its position that the statute does not
require that infrastructure SIPs address these specific substantive
issues in existing SIPs and that these issues may be dealt with
separately, outside the context of acting on the infrastructure SIP
submission of a state. To be clear, EPA did not mean to imply that it
was not taking a full final agency action on the infrastructure SIP
submission with respect to any substantive issue that EPA considers to
be a required part of acting on such submissions under section 110(k)
or under section 110(c). Given the confusion evidently resulting from
EPA's statements, however, we want to explain more fully the Agency's
reasons for concluding that these four potential substantive issues in
existing SIPs may be addressed separately.
The requirement for the SIP submissions at issue arises out of CAA
section 110(a)(1). That provision requires that states must make a SIP
submission ``within 3 years (or such shorter period as the
Administrator may prescribe) after the promulgation of a national
primary ambient air quality standard (or any revision thereof)'' and
that these SIPS are to provide for the ``implementation, maintenance,
and enforcement'' of such NAAQS. Section 110(a)(2) includes a list of
specific elements that ``[e]ach such plan'' submission must meet. EPA
has historically referred to these particular submissions that states
must make after the promulgation of a new or revised NAAQS as
``infrastructure SIPs.'' This specific term does not appear in the
statute, but EPA uses the term to distinguish this particular type of
SIP submission designed to address basic structural requirements of a
SIP from other types of SIP submissions designed to address other
different requirements, such as ``nonattainment SIP'' submissions
required to address the nonattainment planning requirements of part D,
``regional haze SIP'' submissions required to address the visibility
protection requirements of CAA section 169A, NSR permitting program
submissions required to address the requirements of part D, and a host
of other specific types of SIP submissions that address other specific
matters.
Although section 110(a)(1) addresses the timing and general
requirements for these infrastructure SIPs, and section 110(a)(2)
provides more details concerning the required contents of these
infrastructure SIPs, EPA believes that many of the specific statutory
provisions are facially ambiguous. In particular, the list of required
elements provided in section 110(a)(2) contains a wide variety of
disparate provisions, some of which pertain to required legal
authority, some of which pertain to required substantive provisions,
and some of which pertain to requirements for both authority and
substantive provisions.\4\ Some of the elements of section 110(a)(2)
are relatively straightforward, but others clearly require
interpretation by EPA through rulemaking, or recommendations through
guidance, in order to give specific meaning for a particular NAAQS.\5\
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\4\ For example, section 110(a)(2)(E) provides that states must
provide assurances that they have adequate legal authority under
state and local law to carry out the SIP; section 110(a)(2)(C)
provides that states must have a substantive program to address
certain sources as required by part C of the CAA; section
110(a)(2)(G) provides that states must have both legal authority to
address emergencies and substantive contingency plans in the event
of such an emergency.
\5\ For example, section 110(a)(2)(D)(i) requires EPA to be sure
that each SIP contains adequate provisions to prevent significant
contribution to nonattainment of the NAAQS in other states. This
provision contains numerous terms that require substantial
rulemaking by EPA in order to determine such basic points as what
constitutes significant contribution. See, e.g., ``Rule To Reduce
Interstate Transport of Fine Particulate Matter and Ozone (Clean Air
Interstate Rule); Revisions to Acid Rain Program; Revisions to the
NOX SIP Call; Final Rule,'' 70 FR 25162 (May 12, 2005)
(defining, among other things, the phrase ``contribute significantly
to nonattainment'').
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Notwithstanding that section 110(a)(2) states that ``each'' SIP
submission must meet the list of requirements therein, EPA has long
noted that this literal reading of the statute is internally
inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment
SIP requirements that could not be met on the schedule provided for
these SIP submissions in section 110(a)(1).\6\ This illustrates that
EPA must determine which provisions of section 110(a)(2) may be
applicable for a given infrastructure SIP submission. Similarly, EPA
has previously decided that it could take action on different parts of
the larger, general ``infrastructure SIP'' for a given NAAQS without
concurrent action on all subsections, such as section 110(a)(2)(D)(i),
because the Agency bifurcated the action on these latter ``interstate
transport'' provisions within section 110(a)(2) and worked with states
to address each of the four prongs of section 110(a)(2)(D)(i) with
substantive administrative actions proceeding on different tracks with
different schedules.\7\ This illustrates that EPA may conclude that
subdividing the applicable requirements of section 110(a)(2) into
separate SIP actions may sometimes be appropriate for a given NAAQS
where a specific substantive action is necessitated, beyond a mere
submission addressing basic structural aspects of the SIP. Finally, EPA
notes that not every element of section 110(a)(2) would be relevant, or
as relevant, or relevant in the same way, for each new or revised NAAQS
and the
[[Page 44268]]
attendant infrastructure SIP submission for that NAAQS. For example,
the monitoring requirements that might be necessary for purposes of
section 110(a)(2)(B) for one NAAQS could be very different than what
might be necessary for a different pollutant. Thus, the content of an
infrastructure SIP submission to meet this element from a state might
be very different for an entirely new NAAQS, versus a minor revision to
an existing NAAQS.\8\
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\6\ See, e.g., Id., 70 FR 25,162, at 63-65 (May 12, 2005)
(explaining relationship between timing requirement of section
110(a)(2)(D) versus section 110(a)(2)(I)).
\7\ EPA issued separate guidance to states with respect to SIP
submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and
1997 PM2.5 NAAQS. See, ``Guidance for State
Implementation Plan (SIP) Submissions to Meet Current Outstanding
Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and
PM2.5 National Ambient Air Quality Standards,'' from
William T. Harnett, Director, Air Quality Policy Division OAQPS, to
Regional Air Division Director, Regions I-X, dated August 15, 2006.
\8\ For example, implementation of the 1997 PM2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of that new indicator species for the new NAAQS.
---------------------------------------------------------------------------
Similarly, EPA notes that other types of SIP submissions required
under the statute also must meet the requirements of section 110(a)(2),
and this also demonstrates the need to identify the applicable elements
for other SIP submissions. For example, nonattainment SIPs required by
part D likewise have to meet the relevant subsections of section
110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear
that nonattainment SIPs would not need to meet the portion of section
110(a)(2)(C) that pertains to part C, i.e., the PSD requirement
applicable in attainment areas. Nonattainment SIPs required by part D
also would not need to address the requirements of section 110(a)(2)(G)
with respect to emergency episodes, as such requirements would not be
limited to nonattainment areas. As this example illustrates, each type
of SIP submission may implicate some subsections of section 110(a)(2)
and not others.
Given the potential for ambiguity of the statutory language of
section 110(a)(1) and (2), EPA believes that it is appropriate for EPA
to interpret that language in the context of acting on the
infrastructure SIPs for a given NAAQS. Because of the inherent
ambiguity of the list of requirements in section 110(a)(2), EPA has
adopted an approach in which it reviews infrastructure SIPs against
this list of elements ``as applicable.'' In other words, EPA assumes
that Congress could not have intended that each and every SIP
submission, regardless of the purpose of the submission or the NAAQS in
question, would meet each of the requirements, or meet each of them in
the same way. EPA elected to use guidance to make recommendations for
infrastructure SIPs for these NAAQS.
On October 2, 2007, EPA issued guidance making recommendations for
the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS
and the 1997 PM2.5 NAAQS.\9\ Within this guidance document,
EPA described the duty of states to make these submissions to meet what
the Agency characterized as the ``infrastructure'' elements for SIPs,
which it further described as the ``basic SIP requirements, including
emissions inventories, monitoring, and modeling to assure attainment
and maintenance of the standards.'' \10\ As further identification of
these basic structural SIP requirements, ``attachment A'' to the
guidance document included a short description of the various elements
of section 110(a)(2) and additional information about the types of
issues that EPA considered germane in the context of such
infrastructure SIPs. EPA emphasized that the description of the basic
requirements listed on attachment A was not intended ``to constitute an
interpretation of '' the requirements, and was merely a ``brief
description of the required elements.'' \11\ EPA also stated its belief
that with one exception, these requirements were ``relatively self
explanatory, and past experience with SIPs for other NAAQS should
enable States to meet these requirements with assistance from EPA
Regions.'' \12\ For the one exception to that general assumption,
however, i.e., how states should proceed with respect to the
requirements of section 110(a)(2)(G) for the 1997 PM2.5
NAAQS, EPA gave much more specific recommendations. But for other
infrastructure SIP submittals, and for certain elements of the
submittals for the 1997 PM2.5 NAAQS, EPA assumed that each
state would work with its corresponding EPA regional office to refine
the scope of a state's submittal based on an assessment of how the
requirements of section 110(a)(2) should reasonably apply to the basic
structure of the SIP for the NAAQS in question.
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\9\ See, ``Guidance on SIP Elements Required Under Section
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5
National Ambient Air Quality Standards,'' from William T. Harnett,
Director Air Quality Policy Division, to Air Division Directors,
Regions I-X, dated October 2, 2007 (the ``2007 Guidance''). EPA
issued comparable guidance for the 2006 PM2.5 NAAQS
entitled ``Guidance on SIP Elements Required Under Sections
110(a)(1) and (2) for the 2006 24-Hour Fine Particle
(PM2.5) National Ambient Air Quality Standards (NAAQS),''
from William T, Harnett, Director Air Quality Policy Division, to
Regional Air Division Directors, Regions I-X, dated September 25,
2009 (the ``2009 Guidance'').
\10\ Id., at page 2.
\11\ Id., at attachment A, page 1.
\12\ Id., at page 4. In retrospect, the concerns raised by
commenters with respect to EPA's approach to some substantive issues
indicates that the statute is not so ``self explanatory,'' and
indeed is sufficiently ambiguous that EPA needs to interpret it in
order to explain why these substantive issues do not need to be
addressed in the context of infrastructure SIPs and may be addressed
at other times and by other means.
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Significantly, the 2007 Guidance did not explicitly refer to the
SSM, director's discretion, minor source NSR, or NSR Reform issues as
among specific substantive issues EPA expected states to address in the
context of the infrastructure SIPs, nor did EPA give any more specific
recommendations with respect to how states might address such issues
even if they elected to do so. The SSM and director's discretion issues
implicate section 110(a)(2)(A), and the minor source NSR and NSR Reform
issues implicate section 110(a)(2)(C). In the 2007 Guidance, however,
EPA did not indicate to states that it intended to interpret these
provisions as requiring a substantive submission to address these
specific issues in the context of the infrastructure SIPs for these
NAAQS. Instead, EPA's 2007 Guidance merely indicated its belief that
the states should make submissions in which they established that they
have the basic SIP structure necessary to implement, maintain, and
enforce the NAAQS. EPA believes that states can establish that they
have the basic SIP structure, notwithstanding that there may be
potential deficiencies within the existing SIP. Thus, EPA's proposals
mentioned these issues not because the Agency considers them issues
that must be addressed in the context of an infrastructure SIP as
required by section 110(a)(1) and (2), but rather because EPA wanted to
be clear that it considers these potential existing SIP problems as
separate from the pending infrastructure SIP actions.
EPA believes that this approach to the infrastructure SIP
requirement is reasonable, because it would not be feasible to read
section 110(a)(1) and (2) to require a top to bottom, stem to stern,
review of each and every provision of an existing SIP merely for
purposes of assuring that the state in question has the basic
structural elements for a functioning SIP for a new or revised NAAQS.
Because SIPs have grown by accretion over the decades as statutory and
regulatory requirements under the CAA have evolved, they may include
some outmoded provisions and historical artifacts that, while not fully
up to date, nevertheless may not pose a significant problem for the
purposes of ``implementation, maintenance, and enforcement'' of a new
or revised NAAQS when EPA considers the overall effectiveness of the
SIP. To the contrary, EPA believes that a better approach is for EPA to
determine which specific SIP elements from section 110(a)(2) are
applicable to an infrastructure SIP for a given NAAQS, and to focus
attention on those elements that are most likely to need a specific SIP
revision in light of the new or revised NAAQS. Thus, for
[[Page 44269]]
example, EPA's 2007 Guidance specifically directed states to focus on
the requirements of section 110(a)(2)(G) for the 1997 PM2.5
NAAQS because of the absence of underlying EPA regulations for
emergency episodes for this NAAQS and an anticipated absence of
relevant provisions in existing SIPs.
Finally, EPA believes that its approach is a reasonable reading of
section 110(a)(1) and (2) because the statute provides other avenues
and mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow the Agency to take appropriate
tailored action, depending upon the nature and severity of the alleged
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP
call'' whenever the Agency determines that a SIP is substantially
inadequate to attain or maintain the NAAQS, to mitigate interstate
transport, or otherwise to comply with the CAA.\13\ Section 110(k)(6)
authorizes EPA to correct errors in past actions, such as past
approvals of SIP submissions.\14\ Significantly, EPA's determination
that an action on the infrastructure SIP is not the appropriate time
and place to address all potential existing SIP problems does not
preclude the Agency's subsequent reliance on provisions in section
110(a)(2) as part of the basis for action at a later time. For example,
although it may not be appropriate to require a state to eliminate all
existing inappropriate director's discretion provisions in the course
of acting on the infrastructure SIP, EPA believes that section
110(a)(2)(A) may be among the statutory bases that the Agency cites in
the course of addressing the issue in a subsequent action.\15\
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\13\ EPA has recently issued a SIP call to rectify a specific
SIP deficiency related to the SSM issue. See, ``Finding of
Substantial Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revision,'' 74 FR 21,639 (April 18, 2011).
\14\ EPA has recently utilized this authority to correct errors
in past actions on SIP submissions related to PSD programs. See,
``Limitation of Approval of Prevention of Significant Deterioration
Provisions Concerning Greenhouse Gas Emitting-Sources in State
Implementation Plans; Final Rule,'' 75 FR 82,536 (Dec. 30, 2010).
EPA has previously used its authority under CAA 110(k)(6) to remove
numerous other SIP provisions that the Agency determined it had
approved in error. See, e.g., 61 FR 38,664 (July 25, 1996) and 62 FR
34,641 (June 27, 1997) (corrections to American Samoa, Arizona,
California, Hawaii, and Nevada SIPs); 69 FR 67,062 (November 16,
2004) (corrections to California SIP); and 74 FR 57,051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
\15\ EPA has recently disapproved a SIP submission from Colorado
on the grounds that it would have included a director's discretion
provision inconsistent with CAA requirements, including section
110(a)(2)(A). See, e.g., 75 FR 42,342 at 42,344 (July 21, 2010)
(proposed disapproval of director's discretion provisions); 76 FR
4,540 (Jan. 26, 2011) (final disapproval of such provisions).
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II. Response to Comments
EPA received one letter on June 22, 2011 containing comments from
WildEarth Guardians (WEG), an environmental organization. The
significant comments made in WEG's June 22, 2011 letter and EPA's
responses to those comments are given below.
Comment No. 1: The commenter expressed concern that the Wyoming SIP
is failing to maintain the 1997 8-hour ozone NAAQS in Sublette County.
As evidence, the commenter cited data from three monitors in Sublette
County. The commenter argued that the data establish the Wyoming SIP is
failing to meet the requirements of CAA section 110(a)(1) and that EPA
cannot approve the Wyoming infrastructure SIP for the 1997 ozone NAAQS
as a result.
EPA Response: EPA disagrees with the commenter's view that the
monitor data presented by the commenter has a bearing on EPA's action
on the State's infrastructure SIP submission. First, there are
currently no nonattainment areas designated in Wyoming for the 1997 8-
hour ozone NAAQS. Thus, the State is not currently under an obligation
to submit a SIP to meet the requirements of Part D of title I. More
importantly, as explained in the NPR, Part D requirements are outside
the scope of this action. EPA therefore disagrees with the assertion
that, as a result of the cited monitoring data, EPA cannot approve the
Wyoming infrastructure SIP for the 1997 ozone NAAQS.
Comment No. 2: The commenter asserted that the Wyoming SIP does not
meet the monitoring requirements of 40 CFR part 58 for the 1997 8-hour
ozone NAAQS, and that EPA should therefore disapprove the Wyoming
infrastructure SIP for element 110(a)(2)(B). The commenter argued that
because the cities of Casper and Cheyenne each have an urbanized
population greater than 50,000, both areas are required to have ozone
monitors under 40 CFR part 58, Appendix D. The commenter concluded
that, as neither city contains an ozone monitor, Wyoming's SIP does not
fulfill the requirements of 110(a)(2)(B). The commenter further argued
that a discussion of monitoring in Pinedale, Casper, Rock Springs, and
Gillette in a recent Wyoming Monitoring Network Plan demonstrates a
need for ``a more expansive network'' of ozone monitors in the State.
EPA Response: EPA disagrees with this commenter's conclusion with
respect to whether the monitoring network required by the Wyoming SIP
meets the current requirements. Table D-2 in Appendix D to 40 CFR part
58 sets the minimum number of required State and Local Air Monitoring
Stations (SLAMS) for ozone. Footnote 4 to the table explicitly
indicates that minimum monitoring requirements in the last column
should apply in the absence of a design value. While both Casper and
Cheyenne have populations greater than 50,000 (but less than 350,000),
they lack ozone design values at this time. Therefore, the minimum
number of required SLAMS monitors for ozone for Casper and Cheyenne is
zero, and the current monitoring network, with respect to those two
cities, meets the current requirements of 40 CFR part 58, Appendix D
for ozone. The 2010 network assessment cited by the commenter and the
2011 network plan linked to by the commenter do not provide any
information to the contrary. EPA therefore disagrees with the
commenter's conclusion that the State's infrastructure SIP is not
approvable at this time.
EPA notes, however, that it has proposed revisions to the current
monitoring requirements for ozone. On July 16, 2009, EPA proposed to
change the monitoring requirements, in part to insure that smaller
metropolitan areas with populations between 50,000 and 350,000 that
currently do not have ozone monitors will get them, in order to assure
the health benefits of the NAAQS in these areas.\16\ If EPA finalizes
the proposed revisions to the monitoring requirements, this would help
to address the concerns of the commenter.
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\16\ See, ``Ambient Ozone Monitoring Regulations: Revisions to
Network Design Requirements,'' 74 FR 34525, at 34527-28 (July 16,
2009).
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Comment No. 3: The commenter expressed concern that monitoring is
only required from May to September, whereas areas such as Sublette
County have maximum ozone concentrations in the winter months. The
commenter argued that EPA must assure the Wyoming SIP requires
monitoring during the wintertime. According to the commenter, the
failure to monitor in the winter months would be grounds for
disapproval of the infrastructure SIP under section 110(a)(2)(B).
EPA Response: EPA is concerned with the wintertime ozone issues in
western states. However, with respect to the season during which
monitoring is currently required, the required ozone monitoring seasons
are provided in 40 CFR part 58, Appendix D, which currently specifies
monitoring from May through September. The proposed revision to the
ozone monitoring
[[Page 44270]]
requirements discussed in the response to comment 2 above would also
revise the ozone monitoring season for Wyoming (74 FR at 34538). If EPA
finalizes the proposed revision to the ozone monitoring season for
Wyoming, the monitoring season will be extended and EPA anticipates
that this would help to address the underlying concern of the
commenter. At this point, however, Wyoming complies with the existing
monitoring season requirements of Appendix D. Thus, the comment gives
no basis for EPA to change its proposed approval of the Wyoming
infrastructure SIP for element 110(a)(2)(B) for the 1997 8-hour ozone
NAAQS.
Comment No. 4: The commenter expressed concern that Wyoming's title
V program does not increase permit fees each year in accordance with
the Consumer Price Index as required by title V of the CAA, citing 42
U.S.C. 7661a(b)(3)(B)(v) and 40 CFR 70.9(b)(2)(iv). The commenter
argues that this creates an issue under section 110(a)(2)(L) that
precludes approval of the State's infrastructure SIP.
EPA Response: EPA disagrees with this comment. As stated in the
text of the section, the fees specified in 110(a)(2)(L) are no longer
applicable to title V operating permit programs after approval of such
programs. As noted in the NPR, final approval of the title V operating
permit program became effective April 23, 1999 (64 FR 8523, Feb. 22,
1990). Therefore, EPA concludes that the Wyoming infrastructure SIP for
the 1997 8-hour ozone NAAQS meets the requirements of section
110(a)(2)(L) with respect to the title V program.
III. Final Action
In this action, EPA is approving the following section 110(a)(2)
infrastructure elements for Wyoming for the 1997 ozone NAAQS: (A), (B),
(D)(ii), (E), (F), (G), (H), (K), (L), and (M). EPA is also approving
Wyoming's May 11, 2011 SIP submittal that revises the State's PSD
program.
In this action, EPA is disapproving section 110(a)(2)(C) and (J)
for the 1997 ozone NAAQS.
IV. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations (42 U.S.C. 7410(k), 40 CFR 52.02(a)). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves some state law as meeting Federal requirements
and disapproves other state law because it does not meet Federal
requirements; this action does not impose additional requirements
beyond those imposed by state law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
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);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999); is not an
economically significant regulatory action based on health or safety
risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and,
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have Tribal implications as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the
SIP is not approved to apply in Indian country located in the State,
and EPA notes that it will not impose substantial direct costs on
Tribal governments or preempt Tribal law.
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 action 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 September 23, 2011. 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. 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: June 30, 2011.
James B. Martin,
Regional Administrator, Region 8.
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for Part 52 continues to read as follows:
Authority: 2 U.S.C. 7401 et seq.
Subpart ZZ--Wyoming
0
2. Section 52.2620 is amended by:
0
a. In paragraph (c)(1), revising the entry under Chapter 6 for
``Section 4''.
0
b. In paragraph (e), add an entry for ``XIX'', Section 110(a)(2)
Infrastructure Requirements for the 1997 8-Hour Ozone NAAQS.
Sec. 52.2620 Identification of plan.
* * * * *
(c) * * *
(1) * * *
[[Page 44271]]
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State adopted and EPA approval date
State Citation Title/subject effective date and citation\1\ Explanations
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Chapter 6
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Section 4....................... Prevention of 7/8/10 and 9/7/10. 6/30/11, 7/25/11
Significant [Insert page
Deterioration. number where the
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.
* * * * *
(e) * * *
----------------------------------------------------------------------------------------------------------------
Applicable
Name of nonregulatory SP geographic or non- State submittal EPA approval date Explanation
provision attainment area date/adopted date and citation \3\
----------------------------------------------------------------------------------------------------------------
* * * * * * *
XIX. Section 110(a)(2) Statewide......... 12/7/2007 and 12/ 6/30/11, 7/25/11 ..................
Infrastructure Requirements for 10/2007. [Insert page
the 1997 8-hour Ozone NAAQS. number where the
document begins].
----------------------------------------------------------------------------------------------------------------
\3\ 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.
[FR Doc. 2011-18423 Filed 7-22-11; 8:45 am]
BILLING CODE 6560-50-P
