Approval and Promulgation of Air Quality Implementation Plans; State of Wyoming; Revised General Conformity Requirements and an Associated Revision, 49685-49690 [2013-19603]
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Federal Register / Vol. 78, No. 158 / Thursday, August 15, 2013 / Rules and Regulations
corrected to read as follows: ‘‘Acting
Regional Administrator, Region 9.’’
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen oxides, Sulfur dioxide,
Particulate matter, Reporting and
recordkeeping requirements, Visibility,
Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: August 2, 2013.
Jared Blumenfeld,
Regional Administrator, Region 9.
[FR Doc. 2013–19618 Filed 8–14–13; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R08–OAR–2013–0059; FRL–9846–8]
Approval and Promulgation of Air
Quality Implementation Plans; State of
Wyoming; Revised General Conformity
Requirements and an Associated
Revision
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
EPA is approving a State
Implementation Plan revision submitted
by the State of Wyoming. On December
21, 2012, the Governor of Wyoming’s
designee submitted to EPA revisions to
Wyoming’s Air Quality Standards and
Regulations Chapter 8, Nonattainment
Area Regulations, involving Section 3 of
Chapter 8 that addresses general
conformity requirements and a new
Section 5 to Chapter 8 that involves
incorporation by reference. The SIP
submission addresses revisions and
additions to Wyoming’s general
conformity requirements in order to
align them with the current federal
general conformity regulation
requirements and incorporates by
reference those sections of the Code of
Federal Regulations that are referred to
in the State’s general conformity
requirements. EPA is approving the
submission in accordance with the
requirements of section 110 of the Clean
Air Act.
DATES: Effective Date: This final rule is
effective September 16, 2013.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–R08–OAR–2013–0059. All
documents in the docket are listed on
the www.regulations.gov Web site.
Although listed in the index, some
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SUMMARY:
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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
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 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, 8:00 a.m. to 4:00 p.m., excluding
Federal holidays.
FOR FURTHER INFORMATION CONTACT: Tim
Russ, Air Program, EPA, Region 8,
Mailcode 8P–AR, 1595 Wynkoop,
Denver, Colorado 80202–1129, (303)
312–6479, russ.tim@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 NAAQS mean national
ambient air quality standard.
(iv) The initials SIP mean or refer to State
Implementation Plan.
(v) The words Wyoming and State mean
the State of Wyoming.
Table of Contents
I. Background Information
II. What was the State’s process?
III. EPA’s Evaluation of the State’s Revisions
to Chapter 8, Sections 3
and 5
IV. Response to Comments
V. Consideration of Section 110(1) of the
Clean Air Act
VI. Final Action
VII. Statutory and Executive Order Reviews
I. Background Information
On May 7, 2013, EPA published a
proposed rule in the Federal Register in
which we proposed approval of a State
Implementation Plan (SIP) revision that
was submitted by the State of Wyoming
on December 21, 2012. Our proposed
rule provided an opportunity for public
comment through June 6, 2013 (see 78
FR 26563). The SIP submission
addressed revisions and additions to the
State’s general conformity requirements
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49685
in order to align them with the current
federal general conformity regulation
requirements and incorporated by
reference those sections of the Code of
Federal Regulations that are referred to
in the State’s general conformity
requirements. In response to our May 7,
2013 proposed rule, we received six
comment letters in support of our
proposed rule and we did not receive
any adverse comments.
As background, we note the intent of
the general conformity requirement is to
prevent the air quality impacts of
federal actions from causing or
contributing to a violation of a National
Ambient Air Quality Standard (NAAQS)
or interfering with the purpose of a SIP.
Under the Clean Air Act (CAA) as
amended in 1990, Congress recognized
that actions taken by federal agencies
could affect state and local agencies’
abilities to attain and maintain the
NAAQS. Section 176(c) of the CAA, as
codified in Title 42 of the United States
Code (42 U.S.C. 7506), requires federal
agencies to assure that their actions
conform to the applicable SIP for
attaining and maintaining compliance
with the NAAQS. General conformity is
defined to apply to NAAQS established
pursuant to section 109 of the CAA,
including the NAAQS for carbon
monoxide (CO), nitrogen dioxide (NO2),
ozone, particulate matter (PM), and
sulfur dioxide (SO2). Because certain
provisions of section 176(c) of the CAA
apply only to highway and mass transit
funding and approval actions, EPA
published two sets of regulations to
implement section 176(c) of the CAA—
one set for transportation conformity
and one set for general conformity. The
federal general conformity regulations
were published on November 30, 1993
(58 FR 63214) and codified in the Code
of Federal Regulations (CFR) at 40 CFR
part 93 Subpart B.
On July 17, 2006, EPA revised the
federal general conformity regulations
via a final rule (71 FR 40420). EPA had
promulgated a new NAAQS on July 18,
1997 (62 FR 38652) that established a
separate NAAQS for fine particulate
matter smaller than 2.5 micrometers in
diameter (PM2.5). The prior coarse
particulate matter NAAQS promulgated
in 1997 pertains to particulate matter
under 10 micrometers in diameter
(PM10). EPA’s July 17, 2006 revision to
the federal general conformity
regulations (71 FR 40420) added
requirements for PM2.5 for the first time,
including annual emission limits of
PM2.5 above which covered federal
actions in NAAQS nonattainment or
maintenance areas would be subject to
general conformity applicability.
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On April 5, 2010, EPA revised the
federal general conformity regulations to
clarify the conformity process, authorize
innovative and flexible compliance
approaches, remove outdated or
unnecessary requirements, reduce the
paperwork burden, provide transition
tools for implementing new standards,
address issues raised by federal agencies
affected by the rules, and provide a
better explanation of conformity
regulations and policies (75 FR 17254,
April 5, 2010). EPA’s April 2010
revisions simplified state SIP
requirements for general conformity,
eliminating duplicative general
conformity provisions codified at 40
CFR Part 93 Subpart B and 40 CFR Part
51 Subpart W. Finally, the April 2010
revision updated federal general
conformity regulations to reflect
changes to governing laws passed by
Congress since EPA’s 1993 rule. The
Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for
Users (SAFETEA–LU) passed by
Congress in 1995 contains a provision
eliminating the CAA requirement for
states to adopt general conformity SIPs.
As a result of SAFETEA–LU, EPA’s
April 2010 rule eliminated the federal
regulatory requirement for states to
adopt and submit general conformity
SIPs, instead making submission of a
general conformity SIP a state option.
With respect to a chronology of
Wyoming’s general conformity
requirements, EPA originally approved
Wyoming’s ‘‘Conformity of general
federal actions to state implementation
plans’’ into Section 32 of Wyoming’s Air
Quality Standards Regulations
(WAQSR) with our direct final rule of
November 19, 1999 (64 FR 63206). That
version of Wyoming’s ‘‘Conformity of
general federal actions to state
implementation plans’’ requirements
was developed by the State to address
the federal general conformity
requirements that were promulgated on
November 30, 1993 (58 FR 63214). On
July 28, 2004, we approved Wyoming’s
restructuring and renumbering SIP
submittal which then located
Wyoming’s ‘‘Conformity of General
Federal Actions to State Implementation
Plans’’ into WAQSR Chapter 8, Section
3 (69 FR 44965).
II. What was the State’s process?
Section 110(a)(2) of the CAA requires
that a state provide reasonable notice
and public hearing before adopting a
SIP revision and submitting it to us.
On October 5, 2012, the
Environmental Quality Council of the
Wyoming Department of Environmental
Quality conducted a public hearing to
consider the adoption of revisions and
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additions to the WAQSR. The revisions
affecting the SIP involved Chapter 8,
‘‘Nonattainment Area Regulations’’,
Section 3, ‘‘Conformity of general
federal actions to state implementation
plans’’, and Section 5, ‘‘Incorporation by
reference’’. After reviewing and
responding to comments received before
and during the public hearing, the
Wyoming Environmental Quality
Council approved the proposed
revisions on October 5, 2012. The SIP
revisions became State effective on
December 19, 2012 and the Governor’s
designee submitted the SIP revisions to
EPA on December 21, 2012.
We have evaluated Wyoming’s SIP
revision submittal and have determined
that the State met the requirements for
reasonable notice and public hearing
under section 110(a)(2) of the CAA. By
a letter dated March 20, 2013, we
advised the Governor’s designee that the
SIP revision submittal was deemed to
have met the minimum ‘‘completeness’’
criteria found in 40 CFR part 51,
Appendix V.
III. EPA’s Evaluation of the State’s
Revisions to Chapter 8, Sections 3 and
5
On December 21, 2012, the State of
Wyoming submitted revisions to its SIP.
The SIP revision consisted of changes
and additions to Wyoming’s WAQSR
Chapter 8, Section 3, ‘‘Conformity of
general Federal actions to state
implementation plans’’, and a new
Section 5, ‘‘Incorporation by reference’’.
The purpose of Wyoming’s SIP revision
was to update its general conformity
requirements to address and align the
State’s requirements with the federal
general conformity requirements
promulgated on July 17, 2006 (71 FR
40420) and on April 5, 2010 (75 FR
17254), as described above. The
revisions to Wyoming’s general
conformity regulation, adopted on
October 5, 2012 and State effective on
December 19, 2012, were described in
our May 7, 2013, proposed rule and for
the reader’s convenience, are again
provided below. The State’s revisions
make numerous changes to the prior,
EPA-approved version of Wyoming’s
general conformity requirements (State
effective October 29, 1999 and EPA
effective on January 18, 2000). In
addition, Wyoming added a new section
5 which incorporates by reference
certain provisions of the federal
regulations.
A. Revisions to WAQSR Chapter 8,
Section 3
1. Section 3(a), ‘‘Prohibition’’, was
modified to remove obsolete provisions
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in (a)(iii) and now makes this section
reserved.
2. Section 3(a), ‘‘Prohibition’’, was
modified to define NEPA in (a)(iv) and
to add a new section (v) that indicates
if an action in one nonattainment or
maintenance area would affect another
nonattainment or maintenance area,
both areas must be evaluated.
3. Section 3(b), ‘‘Definitions’’, was
modified to revise, add or delete the
definitions for: ‘‘Applicability analysis’’,
‘‘Applicable implementation plan or
applicable SIP’’, ‘‘Areawide air quality
modeling analysis’’, ‘‘Cause or
contribute to a new violation’’,
‘‘Confidential business information
(CBI)’’, ‘‘Conformity determination’’,
‘‘Conformity evaluation’’, ‘‘Continuing
program responsibility’’, ‘‘Continuous
program to implement’’, ‘‘Direct
emissions’’, ‘‘Emission inventory’’,
‘‘Emissions offsets’’, ‘‘Emissions that a
Federal agency has a continuing
program responsibility for’’, ‘‘EPA’’,
‘‘Federal agency’’, ‘‘Indirect emissions’’,
‘‘Local air quality modeling analysis’’,
‘‘Maintenance area’’, ‘‘Maintenance
plan’’, ‘‘Metropolitan Planning
Organization (MPO)’’, ‘‘Milestone’’,
‘‘Mitigation measure’’, ‘‘National
ambient air quality standards
(NAAQS)’’, Nonattainment area (NAA)’’,
‘‘Precursors of a criteria pollutant’’,
‘‘Reasonably foreseeable emissions’’,
‘‘Regionally significant action’’,
‘‘Restricted information’’, and ‘‘Take or
start the Federal action’’.
4. Section 3(c), ‘‘Applicability’’, was
revised as follows:
a. Section 3(c)(ii) was modified to
provide clarification of emissions to
include ‘‘criteria’’ and ‘‘precursors’’.
b. Section 3(c)(ii)(A) was modified to
update the language to state ‘‘Other
ozone NAAs inside an ozone transport
region’’ and emissions thresholds were
added for PM2.5 and its precursors.
c. Section 3(c)(ii)(B) was modified to
add emissions thresholds for PM2.5 and
its precursors.
d. Section 3(c)(iii) was modified by
adding language to indicate the
requirements of this section do not
apply to certain federal actions.
e. Section 3(c)(iii)(B)(XXII) was added
to address air traffic control activities.
f. Section 3(c)(iv)(A) was modified to
include the portion of an action that
includes, in addition to major, minor
new or modified stationary sources that
require a permit under the New Source
Review (NSR) program (Section
110(a)(2)(C) and section 173 of the
CAA)), and therefore, a conformity
determination is not required for
sources so permitted.
g. Section 3(c)(iv)(B) was modified to
remove specific examples of natural
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disasters and keep the provisions to
address emergencies.
h. Section 3(c)(v)(B)(I) adds language
that a federal agency must provide a
draft copy of the written determinations
required to affected EPA Regional
Office(s), the affected state(s) and/or air
pollution control agencies, and any
federally recognized Indian tribal
government in the nonattainment or
maintenance area. Those organizations
must be allowed 15 days from the
beginning of the extension period to
comment on the draft determination.
i. Section 3(c)(v)(B)(II) adds language
that within 30 days after making the
determination, federal agencies must
publish a notice of the determination by
placing a prominent advertisement in a
daily newspaper of general circulation
in the area affected by the action.
j. Section 3(c)(v)(C) adds language that
if additional actions are necessary in
response to an emergency or disaster
under this subsection beyond the
specified time period in paragraph
(v)(B) of this subsection, a federal
agency can make a new written
determination for as many 6-month
periods as needed, but in no case does
this exemption extend beyond three 6month periods. An exception is where
an agency provides information to EPA
and the state stating that the conditions
that gave rise to the emergency
exemption continue to exist and how
such conditions effectively prevent the
agency from conducting a conformity
evaluation.
k. Section 3(c)(vi) adds language
which states that actions specified by
individual federal agencies as
‘‘presumed to conform’’ may not be
used in combination with one another
when the total direct and indirect
emissions from the combination of
actions would equal or exceed any of
the rates specified in Section 3
paragraphs (c)(ii)(A) or (c)(ii)(B).
l. Section 3(c)(vii) adds language that
the federal agency must meet the criteria
for establishing activities that are
presumed to conform by fulfilling the
requirements set forth in Section 3
paragraphs (c)(vii)(A), or (c)(vii)(B), or
(c)(vii)(C).
m. Section 3(c)(vii)(C) adds language
that the federal agency must clearly
demonstrate that the emissions from the
type or category of actions and the
amount of emissions from the action are
included in the applicable SIP and the
state, local, or tribal air quality agencies
responsible for the SIP(s) provide
written concurrence that the emissions
from the actions along with all other
expected emissions in the area will not
exceed the emission budget in the SIP.
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n. Section 3(c)(viii) states that in
addition to meeting the criteria for
establishing exemptions as set forth in
paragraphs (vii)(A) or (vii)(B) of the
subsection, the new paragraph (vii)(C) is
also included.
o. Section 3(c)(viii)(A) adds language
that the referenced Federal Register
action must clearly identify the type and
size of the action that would be
‘‘presumed to conform’’ and provide
criteria for determining if the type and
size of action qualifies it for the
presumption.
p. Section 3(c)(viii)(B) adds language
that if the ‘‘presumed to conform’’
action has regional or national
application (e.g., the action will cause
emission increases in excess of the de
minimis levels of this subsection) in
more than one of EPA’s Regions, the
federal agency, as an alternative to
sending it to EPA Regional Offices, can
send the draft conformity determination
to EPA’s Office of Air Quality Planning
and Standards.
q. Section 3(c)(ix) removed previous
language and added language that
emissions from actions are ‘‘presumed
to conform’’ from: (1) Installations with
facility-wide emission budgets meeting
the necessary requirements and that the
State has included the emission budget
in the EPA-approved SIP and the
emissions from the action along with all
other emissions from the installation
will not exceed the facility-wide
emission budget; (2) prescribed fires
conducted in accordance with a smoke
management program which meets the
requirements of EPA’s Interim Air
Quality Policy on Wildland and
Prescribed Fires or an equivalent
replacement EPA policy; or (3)
emissions for actions that the State
identifies in the EPA-approved SIP as
‘‘presumed to conform’’.
r. Section 3(c)(x) removed previous
language and added language which
states that even though an action would
otherwise be ‘‘presumed to conform’’
under Section 3 paragraphs (vi) or (ix)
of this subsection, an action shall not be
‘‘presumed to conform’’ and the
requirements of 40 CFR 93.151,
subsection (a), subsections (d) through
(j) and subsections (l) through (n) shall
apply to the action if EPA or a third
party shows that the action would: (1)
Cause or contribute to any new violation
of any standard in any area; (2) interfere
with provisions in the applicable SIP for
maintenance of any standard; (3)
increase the frequency or severity of any
existing violation of any standard in any
area; or (4) delay timely attainment of
any standard or any required interim
emissions reductions or other
milestones in any area including, where
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applicable, emission levels specified in
the applicable SIP for purposes of a
demonstration of reasonable further
progress, a demonstration of attainment,
or a maintenance plan.
s. Section 3(c)(xi)(d) was modified to
add language that the provisions of
Section 3 shall apply except in the case
of newly designated nonattainment
areas where the requirements are not
applicable until 1 year after the effective
date of the final nonattainment
designation for each NAAQS pollutant
in accordance with section 176(c)(6) of
the CAA.
t. Section 3(c)(xi)(e), ‘‘Reporting
requirements’’, was modified to add
language that any federal agency must
notify the appropriate EPA Regional
Office(s), state and local air quality
agencies, any federally-recognized
Indian tribal government in the
nonattainment or maintenance area. In
addition, the added language stated that
the draft and final conformity
determination shall exclude any
restricted information or confidential
business information. The disclosure of
restricted information and confidential
business information shall be controlled
by the applicable laws, regulations,
security manuals, or executive orders
concerning the use, access, and release
of such materials. Subject to applicable
procedures to protect restricted
information from public disclosure, any
information or materials excluded from
the draft or final conformity
determination or supporting materials
may be made available in a restricted
information annex to the determination
for review by federal and state
representatives who have received
appropriate clearances to review the
information.
u. Section 3(c)(xi)(f)(ii), (iii), and (iv)
under ‘‘public participation’’ was
modified to add language that if the
action has multi-regional or national
impacts (e.g., the action will cause
emission increases in excess of the de
minimis levels identified in subsection
(c)(ii) in three or more of EPA’s
Regions)), the federal agency, as an
alternative to publishing separate
notices, can publish a notice in the
Federal Register.
v. Section 3(c)(xi)(f)(v) under ‘‘public
participation’’ was modified to add
language that the draft and final
conformity determination shall exclude
any restricted information or
confidential business information. This
section also notes that the disclosure of
restricted information and confidential
business information shall be controlled
by the applicable laws, regulations, or
executive orders concerning the release
of such materials.
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w. Section 3(c)(xi)(g) was renamed
‘‘Reevaluation of conformity’’ and
included new language in sections
(c)(xi)(g)(i) and (iv) addressing when a
federal action has commenced and that
once a conformity determination is
completed by a federal agency, that
determination is not required to be
reevaluated if the agency has
maintained a continuous program to
implement the action; the determination
has not lapsed; or any modification to
the action does not result in an increase
in emissions above the levels specified
in Section 3. The additional language
continues that if a conformity
determination is not required for the
action at the time the NEPA analysis is
completed, the date of the finding of no
significant impact (FONSI) for an
Environmental Assessment, a record of
decision (ROD) for an Environmental
Impact Statement, or a categorical
exclusion determination can be used as
a substitute date for the conformity
determination date.
x. Section 3(c)(xi)(g)(iv) also notes
that if the federal agency originally
determined through the applicability
analysis that a conformity determination
was not necessary because the
emissions for the action were below the
limits in subsection (c)(ii) of this section
and changes to the action would result
in the total emissions from the action
being above the limits in subsection
(c)(ii) of this section, then the federal
agency must make a conformity
determination.
y. Section 3(c)(xi)(h), ‘‘Criteria
Determining Conformity of General
Federal Actions’’, had several revisions
addressing: (1) Addition of ‘‘precursor’’
for emissions; (2) offsets coming from a
nearby area of equal or higher
classification provided the emissions
from that area contribute to the
violations, or have contributed to
violations in the past, in the area with
the federal action; (3) where a federal
agency made a conformity
determination based on a state’s
commitment and the state has submitted
a SIP to EPA covering the time period
during which the emissions will occur
or is scheduled to submit such a SIP
within 18 months of the conformity
determination; (4) where a federal
agency made a conformity
determination based on a state
commitment and the state has not
submitted a SIP covering the time
period when the emissions will occur or
is not scheduled to submit such a SIP
within 18 months of the conformity
determination, the state must, within 18
months, submit to EPA a revision to the
existing SIP committing to include the
emissions in the future SIP revision; (5)
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offset emissions may come from within
the same nonattainment or maintenance
area or from a nearby area of equal or
higher classification provided the
emissions from that area contribute to
the violations, or have contributed to
violations in the past, in the area with
the federal action; (6) baseline emissions
from the most current calendar year
with a complete emission inventory
available before an area is designated
unless EPA sets another year or the
emission budget in the applicable SIP;
(7) the motor vehicle emissions model
previously specified by EPA as the most
current version may be used unless EPA
announces a longer grace period in the
Federal Register; (8) ‘‘Guideline on Air
Quality Models’’ as noted in Appendix
W to 40 CFR part 51; and (9) the
attainment year specified in the SIP, or
if the SIP does not specify an attainment
year, the latest attainment year possible
under the CAA as specified in three
options.
z. Section 3(c)(xi)(h)(i)(D), ‘‘For CO or
directly emitted PM10’’. EPA notes that
although the State updated other
sections of WAQSR Chapter 8, Section
3 to address our general conformity
provisions for PM2.5, it inadvertently did
not include the EPA revision to 40 CFR
93.158(a)(4). In our April 5, 2010
Federal Register action (75 FR 17254)
we changed the language at 40 CFR
93.158(a)(4) from ‘‘For CO or directly
emitted PM10’’ to ‘‘For CO or directly
emitted PM’’. The reason for this change
to only ‘‘PM’’ was to address both PM2.5
and PM10. EPA does not view this
inadvertent omission by the State as
being an approvability issue. Currently,
all of Wyoming is designated as
‘‘attainment/unclassifiable’’ for both the
1997 annual PM2.5 NAAQS and the 2006
24-hour PM2.5 NAAQS (70 FR 944,
January 5, 2005 and 74 FR 58688,
November 13, 2009, respectively, and 40
CFR 81.351). Therefore, general
conformity for PM2.5 does not apply in
Wyoming. If in the future any area in
Wyoming is designated as
nonattainment for either the annual or
24-hour PM2.5 NAAQS, general
conformity will not apply until 1 year
after the effective date of the
nonattainment designation (CAA
section 176(c)(6)). Within that 1 year
‘‘grace period’’ before general
conformity would apply, EPA will
require Wyoming to update Chapter 8,
Section 3(c)(xi)(h)(i)(D) to correctly
reflect ‘‘For CO or directly emitted PM’’
and submit this update to EPA as a
revision to the SIP.
aa. Section 3(c)(xi)(k), ‘‘Conformity
Evaluation for Federal Installations
With Facility-Wide Emission Budgets’’,
revised and added new language that
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included requirements and provisions
addressing: (1) Time periods; (2) the
pollutants or precursors of the
pollutants for which the area is
designated nonattainment or
maintenance; (3) specific quantities
allowed to be emitted on an annual or
seasonal basis; (4) that the emissions
from the facility along with all other
emissions in the area will not exceed
the emission budget for the area; (5)
specific measures to ensure compliance
with the budget; (6) the submittal to
EPA as a SIP revision and the SIP
revision must be approved by EPA; (7)
that the facility-wide budget developed
and adopted in accordance with
paragraph (i) of this subsection; (8) that
total direct and indirect emissions from
federal actions in conjunction with all
other emissions subject to general
conformity from the facility that do not
exceed the facility budget are
‘‘presumed to conform’’ to the SIP and
do not require a conformity analysis; (9)
that if the total direct and indirect
emissions from the federal actions in
conjunction with the other emissions
subject to general conformity from the
facility exceed the budget adopted the
action must be evaluated for conformity;
(10) that if the SIP for the area includes
a category for construction emissions,
the negotiated budget can exempt
construction emissions from further
conformity analysis; and (11) that for
emissions beyond the time period
covered by the SIP the federal agency
can demonstrate conformity with the
last emission budget in the SIP, or
request the state to adopt an emissions
budget for the action for inclusion in the
SIP.
bb. In addition to those items noted in
section III(A)(4)(aa) of this action,
Section 3(c)(xi)(k), ‘‘Conformity
Evaluation for Federal Installations
With Facility-Wide Emission Budgets’’,
also revised and added new language
that included requirements and
provisions addressing: (1) Timing of
offsets and mitigation measures; (2)
inter-precursor mitigation measures and
offsets; and (3) early emission reduction
credit programs at federal facilities and
installations subject to federal oversight.
B. Revisions to WAQSR Chapter 8,
Section 5
Wyoming added a new Section 5 to
WAQSR Chapter 8 entitled
‘‘Incorporation by reference’’. This new
section states that all CFR citations in
Chapter 8, including their Appendices,
revised and published as of July 1, 2011,
not including any later amendments, are
incorporated by reference. The section
continues with noting where copies of
the applicable CFRs are available for
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Federal Register / Vol. 78, No. 158 / Thursday, August 15, 2013 / Rules and Regulations
public inspection or may be obtained, at
cost, from the State.
EPA has reviewed Wyoming’s
revisions to WAQSR Chapter 8, Section
3, ‘‘Conformity of general federal actions
to state implementation plans’’, and the
new Section 5, ‘‘Incorporation by
reference’’, and has concluded that our
approval is warranted. Based on our
review, we determined that the
revisions to Section 3 incorporate and
address the additional federal general
conformity requirements that we
promulgated in July 2006 and April
2010. In addition, the new Section 5
that incorporates relevant sections of the
CFR is also acceptable. EPA is
approving Wyoming’s December 21,
2012 SIP revision submittal in order to
update the State’s general conformity
requirements for federal agencies, with
applicable federal actions, and to align
the State’s general conformity
requirements with the federal general
conformity rule’s requirements.
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IV. Response to Comments
On May 7, 2013, EPA published a
proposed rule in the Federal Register in
which we proposed approval of
Wyoming’s general conformity
requirements SIP revision that was
submitted by the State of Wyoming on
December 21, 2012. Our proposed rule
provided an opportunity for public
comment through June 6, 2013 (see 78
FR 26563). In response to our May 7,
2013 proposed rule, we received six
comment letters in support of our
proposed rule and we did not receive
any adverse comments. EPA notes and
appreciates these comments. Copies of
these comment letters are provided in
the docket for this final rule.
V. Consideration of Section 110(1) of
the Clean Air Act
Section 110(1) of the CAA states that
a SIP revision cannot be approved if the
revision would interfere with any
applicable requirement concerning
attainment and reasonable further
progress towards attainment of a
NAAQS or any other applicable
requirement of the CAA. As described
in section III.A.4.f. of this action, the
changes to the Wyoming SIP would not
require a conformity determination for
minor new or modified stationary
sources that require a permit under the
NSR permitting program (section
110(a)(2)(C) and section 173 of the
CAA)). The State of Wyoming indicates
that SIP permitting regulations prevent
the State from issuing a permit if the
facility would prevent the attainment or
maintenance of any ambient air quality
standard (‘‘the proposed facility will not
prevent the attainment or maintenance
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16:08 Aug 14, 2013
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of any ambient air quality standard’’,
WAQSR Chapter 6, Section 2(c)(ii)).
With this final rule, EPA is finding that
these Wyoming SIP general conformity
minor stationary source permit
provisions are adequate to ensure that
this SIP revision will not interfere with
any applicable requirement concerning
attainment and reasonable further
progress towards attainment of a
NAAQS or any other applicable
requirement of the CAA.
VI. Final Action
EPA is approving the December 21,
2012 submitted SIP revisions to
Wyoming’s WAQSR Chapter 8, Section
3, ‘‘Conformity of general federal actions
to state implementation plans’’, and
Section 5, ‘‘Incorporation by reference’’.
These revisions incorporate and address
the federal general conformity rule
requirements that were promulgated on
July 17, 2006 and April 5, 2010. EPA is
approving this Wyoming SIP revision
submittal in order to update the State’s
general conformity requirements for
federal agencies, with applicable federal
actions, and to align the State’s general
conformity requirements with the
federal general conformity rule’s
requirements.
VII. Statutory and Executive Order
Reviews
Under the Clean Air Act, 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 Clean Air Act.
Accordingly, this action merely
approves state law as meeting federal
requirements and 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);
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49689
• 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 Clean Air Act;
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 October 15, 2013.
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
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Federal Register / Vol. 78, No. 158 / Thursday, August 15, 2013 / Rules and Regulations
Dated: July 16, 2013.
Judith Wong,
Acting Regional Administrator, Region 8.
enforce its requirements. (See section
307(b)(2).)
List of Subjects in 40 CFR Part 52
PART 52—[AMENDED]
§ 52.2620
1. The authority citation for Part 52
continues to read as follows:
■
*
Authority: 42 U.S.C. 7401 et seq.
State adopted and
effective date
Title/subject
*
2. Section 52.2620, the table in
paragraph (c)(1) is amended under
Chapter 8 by revising the entry for
Section 3 and by adding a new entry for
Section 5 to read as follows:
■
40 CFR part 52 is amended to read as
follows:
Environmental protection, Air
pollution control, Carbon monoxide,
Incorporation by reference,
Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides, and
Volatile organic compounds.
State citation
Subpart ZZ—Wyoming
*
*
*
Identification of plan.
*
*
(c) * * *
(1) * * *
*
*
EPA approval date and citation 1
Explanations
*
*
*
*
*
*
8/15/13
where
8/15/13
where
[insert FR page
document begins].
[insert FR page
document begins].
*
*
Chapter 8
*
*
Section 3 ...............
Section 5 ...............
*
*
Conformity of general federal actions
to state implementation plans..
Incorporation by reference. .................
*
*
*
10/5/12, 12/19/12
10/5/12, 12/19/12
*
number
number
*
1 In order to determine the EPA effective date for a specific provision that is listed in the table, consult the Federal Register cited in this column for that particular provision.
*
*
*
*
Response, Compensation and Liability
Act.
*
[FR Doc. 2013–19603 Filed 8–14–13; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 312
[EPA–HQ–SFUND–2013–0513; FRL–9845–9]
Amendment to Standards and
Practices for All Appropriate Inquiries
Environmental Protection
Agency (EPA).
ACTION: Direct final rule.
AGENCY:
EPA is taking direct final
action to amend the Standards and
Practices for All Appropriate Inquiries
to reference a standard practice recently
made available by ASTM International,
a widely recognized standards
development organization. Specifically,
this direct final rule amends the All
Appropriate Inquiries Rule to reference
ASTM International’s E1527–13
‘‘Standard Practice for Environmental
Site Assessments: Phase I
Environmental Site Assessment
Process’’ and allow for its use to satisfy
the requirements for conducting all
appropriate inquiries under the
Comprehensive Environmental
tkelley on DSK3SPTVN1PROD with RULES
SUMMARY:
VerDate Mar<15>2010
16:08 Aug 14, 2013
This rule is effective on
November 13, 2013, without further
notice, unless EPA receives adverse
comment by September 16, 2013. If EPA
receives such comment, we will publish
a timely withdrawal in the Federal
Register informing the public that this
rule will not take effect.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–HQ–
SFUND–2013–0513 by one of the
following methods:
• www.regulations.gov: Follow the
on-line instructions for submitting
comments.
• Email: superfund.docket@epa.gov.
• Fax: 202–566–9744.
• Mail: Superfund Docket,
Environmental Protection Agency,
Mailcode: 2822T, 1200 Pennsylvania
Ave. NW., Washington, DC 20460.
• Hand Delivery: EPA Headquarters
West Building, Room 3334, located at
1301 Constitution Ave. NW.,
Washington, DC. Such deliveries are
only accepted during the Docket’s
normal hours of operation, and special
arrangements should be made for
deliveries of boxed information. The
EPA Headquarters Public Reading Room
hours of operation are 8:30 a.m. to 4:30
p.m. Eastern Standard Time, Monday
DATES:
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through Friday, excluding federal
holidays.
Instructions: Direct your comments to
Docket ID No. EPA–HQ–SFUND–2013–
0513. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through www.regulations.gov
or email. The www.regulations.gov Web
site is an ‘‘anonymous access’’ system,
which means EPA will not know your
identity or contact information unless
you provide it in the body of your
comment. If you send an email
comment directly to EPA without going
through www.regulations.gov your email
address will be automatically captured
and included as part of the comment
that is placed in the public docket and
made available on the Internet. If you
submit an electronic comment, EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. If EPA
cannot read your comment due to
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]]>Agencies
[Federal Register Volume 78, Number 158 (Thursday, August 15, 2013)]
[Rules and Regulations]
[Pages 49685-49690]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-19603]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2013-0059; FRL-9846-8]
Approval and Promulgation of Air Quality Implementation Plans;
State of Wyoming; Revised General Conformity Requirements and an
Associated Revision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is approving a State Implementation Plan revision
submitted by the State of Wyoming. On December 21, 2012, the Governor
of Wyoming's designee submitted to EPA revisions to Wyoming's Air
Quality Standards and Regulations Chapter 8, Nonattainment Area
Regulations, involving Section 3 of Chapter 8 that addresses general
conformity requirements and a new Section 5 to Chapter 8 that involves
incorporation by reference. The SIP submission addresses revisions and
additions to Wyoming's general conformity requirements in order to
align them with the current federal general conformity regulation
requirements and incorporates by reference those sections of the Code
of Federal Regulations that are referred to in the State's general
conformity requirements. EPA is approving the submission in accordance
with the requirements of section 110 of the Clean Air Act.
DATES: Effective Date: This final rule is effective September 16, 2013.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R08-OAR-2013-0059. All documents in the docket are listed on
the 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 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 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, 8:00 a.m. to 4:00 p.m.,
excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT: Tim Russ, Air Program, EPA, Region 8,
Mailcode 8P-AR, 1595 Wynkoop, Denver, Colorado 80202-1129, (303) 312-
6479, russ.tim@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 NAAQS mean national ambient air quality
standard.
(iv) The initials SIP mean or refer to State Implementation
Plan.
(v) The words Wyoming and State mean the State of Wyoming.
Table of Contents
I. Background Information
II. What was the State's process?
III. EPA's Evaluation of the State's Revisions to Chapter 8,
Sections 3 and 5
IV. Response to Comments
V. Consideration of Section 110(1) of the Clean Air Act
VI. Final Action
VII. Statutory and Executive Order Reviews
I. Background Information
On May 7, 2013, EPA published a proposed rule in the Federal
Register in which we proposed approval of a State Implementation Plan
(SIP) revision that was submitted by the State of Wyoming on December
21, 2012. Our proposed rule provided an opportunity for public comment
through June 6, 2013 (see 78 FR 26563). The SIP submission addressed
revisions and additions to the State's general conformity requirements
in order to align them with the current federal general conformity
regulation requirements and incorporated by reference those sections of
the Code of Federal Regulations that are referred to in the State's
general conformity requirements. In response to our May 7, 2013
proposed rule, we received six comment letters in support of our
proposed rule and we did not receive any adverse comments.
As background, we note the intent of the general conformity
requirement is to prevent the air quality impacts of federal actions
from causing or contributing to a violation of a National Ambient Air
Quality Standard (NAAQS) or interfering with the purpose of a SIP.
Under the Clean Air Act (CAA) as amended in 1990, Congress recognized
that actions taken by federal agencies could affect state and local
agencies' abilities to attain and maintain the NAAQS. Section 176(c) of
the CAA, as codified in Title 42 of the United States Code (42 U.S.C.
7506), requires federal agencies to assure that their actions conform
to the applicable SIP for attaining and maintaining compliance with the
NAAQS. General conformity is defined to apply to NAAQS established
pursuant to section 109 of the CAA, including the NAAQS for carbon
monoxide (CO), nitrogen dioxide (NO2), ozone, particulate
matter (PM), and sulfur dioxide (SO2). Because certain
provisions of section 176(c) of the CAA apply only to highway and mass
transit funding and approval actions, EPA published two sets of
regulations to implement section 176(c) of the CAA--one set for
transportation conformity and one set for general conformity. The
federal general conformity regulations were published on November 30,
1993 (58 FR 63214) and codified in the Code of Federal Regulations
(CFR) at 40 CFR part 93 Subpart B.
On July 17, 2006, EPA revised the federal general conformity
regulations via a final rule (71 FR 40420). EPA had promulgated a new
NAAQS on July 18, 1997 (62 FR 38652) that established a separate NAAQS
for fine particulate matter smaller than 2.5 micrometers in diameter
(PM2.5). The prior coarse particulate matter NAAQS
promulgated in 1997 pertains to particulate matter under 10 micrometers
in diameter (PM10). EPA's July 17, 2006 revision to the
federal general conformity regulations (71 FR 40420) added requirements
for PM2.5 for the first time, including annual emission
limits of PM2.5 above which covered federal actions in NAAQS
nonattainment or maintenance areas would be subject to general
conformity applicability.
[[Page 49686]]
On April 5, 2010, EPA revised the federal general conformity
regulations to clarify the conformity process, authorize innovative and
flexible compliance approaches, remove outdated or unnecessary
requirements, reduce the paperwork burden, provide transition tools for
implementing new standards, address issues raised by federal agencies
affected by the rules, and provide a better explanation of conformity
regulations and policies (75 FR 17254, April 5, 2010). EPA's April 2010
revisions simplified state SIP requirements for general conformity,
eliminating duplicative general conformity provisions codified at 40
CFR Part 93 Subpart B and 40 CFR Part 51 Subpart W. Finally, the April
2010 revision updated federal general conformity regulations to reflect
changes to governing laws passed by Congress since EPA's 1993 rule. The
Safe, Accountable, Flexible, Efficient Transportation Equity Act: A
Legacy for Users (SAFETEA-LU) passed by Congress in 1995 contains a
provision eliminating the CAA requirement for states to adopt general
conformity SIPs. As a result of SAFETEA-LU, EPA's April 2010 rule
eliminated the federal regulatory requirement for states to adopt and
submit general conformity SIPs, instead making submission of a general
conformity SIP a state option.
With respect to a chronology of Wyoming's general conformity
requirements, EPA originally approved Wyoming's ``Conformity of general
federal actions to state implementation plans'' into Section 32 of
Wyoming's Air Quality Standards Regulations (WAQSR) with our direct
final rule of November 19, 1999 (64 FR 63206). That version of
Wyoming's ``Conformity of general federal actions to state
implementation plans'' requirements was developed by the State to
address the federal general conformity requirements that were
promulgated on November 30, 1993 (58 FR 63214). On July 28, 2004, we
approved Wyoming's restructuring and renumbering SIP submittal which
then located Wyoming's ``Conformity of General Federal Actions to State
Implementation Plans'' into WAQSR Chapter 8, Section 3 (69 FR 44965).
II. What was the State's process?
Section 110(a)(2) of the CAA requires that a state provide
reasonable notice and public hearing before adopting a SIP revision and
submitting it to us.
On October 5, 2012, the Environmental Quality Council of the
Wyoming Department of Environmental Quality conducted a public hearing
to consider the adoption of revisions and additions to the WAQSR. The
revisions affecting the SIP involved Chapter 8, ``Nonattainment Area
Regulations'', Section 3, ``Conformity of general federal actions to
state implementation plans'', and Section 5, ``Incorporation by
reference''. After reviewing and responding to comments received before
and during the public hearing, the Wyoming Environmental Quality
Council approved the proposed revisions on October 5, 2012. The SIP
revisions became State effective on December 19, 2012 and the
Governor's designee submitted the SIP revisions to EPA on December 21,
2012.
We have evaluated Wyoming's SIP revision submittal and have
determined that the State met the requirements for reasonable notice
and public hearing under section 110(a)(2) of the CAA. By a letter
dated March 20, 2013, we advised the Governor's designee that the SIP
revision submittal was deemed to have met the minimum ``completeness''
criteria found in 40 CFR part 51, Appendix V.
III. EPA's Evaluation of the State's Revisions to Chapter 8, Sections 3
and 5
On December 21, 2012, the State of Wyoming submitted revisions to
its SIP. The SIP revision consisted of changes and additions to
Wyoming's WAQSR Chapter 8, Section 3, ``Conformity of general Federal
actions to state implementation plans'', and a new Section 5,
``Incorporation by reference''. The purpose of Wyoming's SIP revision
was to update its general conformity requirements to address and align
the State's requirements with the federal general conformity
requirements promulgated on July 17, 2006 (71 FR 40420) and on April 5,
2010 (75 FR 17254), as described above. The revisions to Wyoming's
general conformity regulation, adopted on October 5, 2012 and State
effective on December 19, 2012, were described in our May 7, 2013,
proposed rule and for the reader's convenience, are again provided
below. The State's revisions make numerous changes to the prior, EPA-
approved version of Wyoming's general conformity requirements (State
effective October 29, 1999 and EPA effective on January 18, 2000). In
addition, Wyoming added a new section 5 which incorporates by reference
certain provisions of the federal regulations.
A. Revisions to WAQSR Chapter 8, Section 3
1. Section 3(a), ``Prohibition'', was modified to remove obsolete
provisions in (a)(iii) and now makes this section reserved.
2. Section 3(a), ``Prohibition'', was modified to define NEPA in
(a)(iv) and to add a new section (v) that indicates if an action in one
nonattainment or maintenance area would affect another nonattainment or
maintenance area, both areas must be evaluated.
3. Section 3(b), ``Definitions'', was modified to revise, add or
delete the definitions for: ``Applicability analysis'', ``Applicable
implementation plan or applicable SIP'', ``Areawide air quality
modeling analysis'', ``Cause or contribute to a new violation'',
``Confidential business information (CBI)'', ``Conformity
determination'', ``Conformity evaluation'', ``Continuing program
responsibility'', ``Continuous program to implement'', ``Direct
emissions'', ``Emission inventory'', ``Emissions offsets'', ``Emissions
that a Federal agency has a continuing program responsibility for'',
``EPA'', ``Federal agency'', ``Indirect emissions'', ``Local air
quality modeling analysis'', ``Maintenance area'', ``Maintenance
plan'', ``Metropolitan Planning Organization (MPO)'', ``Milestone'',
``Mitigation measure'', ``National ambient air quality standards
(NAAQS)'', Nonattainment area (NAA)'', ``Precursors of a criteria
pollutant'', ``Reasonably foreseeable emissions'', ``Regionally
significant action'', ``Restricted information'', and ``Take or start
the Federal action''.
4. Section 3(c), ``Applicability'', was revised as follows:
a. Section 3(c)(ii) was modified to provide clarification of
emissions to include ``criteria'' and ``precursors''.
b. Section 3(c)(ii)(A) was modified to update the language to state
``Other ozone NAAs inside an ozone transport region'' and emissions
thresholds were added for PM2.5 and its precursors.
c. Section 3(c)(ii)(B) was modified to add emissions thresholds for
PM2.5 and its precursors.
d. Section 3(c)(iii) was modified by adding language to indicate
the requirements of this section do not apply to certain federal
actions.
e. Section 3(c)(iii)(B)(XXII) was added to address air traffic
control activities.
f. Section 3(c)(iv)(A) was modified to include the portion of an
action that includes, in addition to major, minor new or modified
stationary sources that require a permit under the New Source Review
(NSR) program (Section 110(a)(2)(C) and section 173 of the CAA)), and
therefore, a conformity determination is not required for sources so
permitted.
g. Section 3(c)(iv)(B) was modified to remove specific examples of
natural
[[Page 49687]]
disasters and keep the provisions to address emergencies.
h. Section 3(c)(v)(B)(I) adds language that a federal agency must
provide a draft copy of the written determinations required to affected
EPA Regional Office(s), the affected state(s) and/or air pollution
control agencies, and any federally recognized Indian tribal government
in the nonattainment or maintenance area. Those organizations must be
allowed 15 days from the beginning of the extension period to comment
on the draft determination.
i. Section 3(c)(v)(B)(II) adds language that within 30 days after
making the determination, federal agencies must publish a notice of the
determination by placing a prominent advertisement in a daily newspaper
of general circulation in the area affected by the action.
j. Section 3(c)(v)(C) adds language that if additional actions are
necessary in response to an emergency or disaster under this subsection
beyond the specified time period in paragraph (v)(B) of this
subsection, a federal agency can make a new written determination for
as many 6-month periods as needed, but in no case does this exemption
extend beyond three 6-month periods. An exception is where an agency
provides information to EPA and the state stating that the conditions
that gave rise to the emergency exemption continue to exist and how
such conditions effectively prevent the agency from conducting a
conformity evaluation.
k. Section 3(c)(vi) adds language which states that actions
specified by individual federal agencies as ``presumed to conform'' may
not be used in combination with one another when the total direct and
indirect emissions from the combination of actions would equal or
exceed any of the rates specified in Section 3 paragraphs (c)(ii)(A) or
(c)(ii)(B).
l. Section 3(c)(vii) adds language that the federal agency must
meet the criteria for establishing activities that are presumed to
conform by fulfilling the requirements set forth in Section 3
paragraphs (c)(vii)(A), or (c)(vii)(B), or (c)(vii)(C).
m. Section 3(c)(vii)(C) adds language that the federal agency must
clearly demonstrate that the emissions from the type or category of
actions and the amount of emissions from the action are included in the
applicable SIP and the state, local, or tribal air quality agencies
responsible for the SIP(s) provide written concurrence that the
emissions from the actions along with all other expected emissions in
the area will not exceed the emission budget in the SIP.
n. Section 3(c)(viii) states that in addition to meeting the
criteria for establishing exemptions as set forth in paragraphs
(vii)(A) or (vii)(B) of the subsection, the new paragraph (vii)(C) is
also included.
o. Section 3(c)(viii)(A) adds language that the referenced Federal
Register action must clearly identify the type and size of the action
that would be ``presumed to conform'' and provide criteria for
determining if the type and size of action qualifies it for the
presumption.
p. Section 3(c)(viii)(B) adds language that if the ``presumed to
conform'' action has regional or national application (e.g., the action
will cause emission increases in excess of the de minimis levels of
this subsection) in more than one of EPA's Regions, the federal agency,
as an alternative to sending it to EPA Regional Offices, can send the
draft conformity determination to EPA's Office of Air Quality Planning
and Standards.
q. Section 3(c)(ix) removed previous language and added language
that emissions from actions are ``presumed to conform'' from: (1)
Installations with facility-wide emission budgets meeting the necessary
requirements and that the State has included the emission budget in the
EPA-approved SIP and the emissions from the action along with all other
emissions from the installation will not exceed the facility-wide
emission budget; (2) prescribed fires conducted in accordance with a
smoke management program which meets the requirements of EPA's Interim
Air Quality Policy on Wildland and Prescribed Fires or an equivalent
replacement EPA policy; or (3) emissions for actions that the State
identifies in the EPA-approved SIP as ``presumed to conform''.
r. Section 3(c)(x) removed previous language and added language
which states that even though an action would otherwise be ``presumed
to conform'' under Section 3 paragraphs (vi) or (ix) of this
subsection, an action shall not be ``presumed to conform'' and the
requirements of 40 CFR 93.151, subsection (a), subsections (d) through
(j) and subsections (l) through (n) shall apply to the action if EPA or
a third party shows that the action would: (1) Cause or contribute to
any new violation of any standard in any area; (2) interfere with
provisions in the applicable SIP for maintenance of any standard; (3)
increase the frequency or severity of any existing violation of any
standard in any area; or (4) delay timely attainment of any standard or
any required interim emissions reductions or other milestones in any
area including, where applicable, emission levels specified in the
applicable SIP for purposes of a demonstration of reasonable further
progress, a demonstration of attainment, or a maintenance plan.
s. Section 3(c)(xi)(d) was modified to add language that the
provisions of Section 3 shall apply except in the case of newly
designated nonattainment areas where the requirements are not
applicable until 1 year after the effective date of the final
nonattainment designation for each NAAQS pollutant in accordance with
section 176(c)(6) of the CAA.
t. Section 3(c)(xi)(e), ``Reporting requirements'', was modified to
add language that any federal agency must notify the appropriate EPA
Regional Office(s), state and local air quality agencies, any
federally-recognized Indian tribal government in the nonattainment or
maintenance area. In addition, the added language stated that the draft
and final conformity determination shall exclude any restricted
information or confidential business information. The disclosure of
restricted information and confidential business information shall be
controlled by the applicable laws, regulations, security manuals, or
executive orders concerning the use, access, and release of such
materials. Subject to applicable procedures to protect restricted
information from public disclosure, any information or materials
excluded from the draft or final conformity determination or supporting
materials may be made available in a restricted information annex to
the determination for review by federal and state representatives who
have received appropriate clearances to review the information.
u. Section 3(c)(xi)(f)(ii), (iii), and (iv) under ``public
participation'' was modified to add language that if the action has
multi-regional or national impacts (e.g., the action will cause
emission increases in excess of the de minimis levels identified in
subsection (c)(ii) in three or more of EPA's Regions)), the federal
agency, as an alternative to publishing separate notices, can publish a
notice in the Federal Register.
v. Section 3(c)(xi)(f)(v) under ``public participation'' was
modified to add language that the draft and final conformity
determination shall exclude any restricted information or confidential
business information. This section also notes that the disclosure of
restricted information and confidential business information shall be
controlled by the applicable laws, regulations, or executive orders
concerning the release of such materials.
[[Page 49688]]
w. Section 3(c)(xi)(g) was renamed ``Reevaluation of conformity''
and included new language in sections (c)(xi)(g)(i) and (iv) addressing
when a federal action has commenced and that once a conformity
determination is completed by a federal agency, that determination is
not required to be reevaluated if the agency has maintained a
continuous program to implement the action; the determination has not
lapsed; or any modification to the action does not result in an
increase in emissions above the levels specified in Section 3. The
additional language continues that if a conformity determination is not
required for the action at the time the NEPA analysis is completed, the
date of the finding of no significant impact (FONSI) for an
Environmental Assessment, a record of decision (ROD) for an
Environmental Impact Statement, or a categorical exclusion
determination can be used as a substitute date for the conformity
determination date.
x. Section 3(c)(xi)(g)(iv) also notes that if the federal agency
originally determined through the applicability analysis that a
conformity determination was not necessary because the emissions for
the action were below the limits in subsection (c)(ii) of this section
and changes to the action would result in the total emissions from the
action being above the limits in subsection (c)(ii) of this section,
then the federal agency must make a conformity determination.
y. Section 3(c)(xi)(h), ``Criteria Determining Conformity of
General Federal Actions'', had several revisions addressing: (1)
Addition of ``precursor'' for emissions; (2) offsets coming from a
nearby area of equal or higher classification provided the emissions
from that area contribute to the violations, or have contributed to
violations in the past, in the area with the federal action; (3) where
a federal agency made a conformity determination based on a state's
commitment and the state has submitted a SIP to EPA covering the time
period during which the emissions will occur or is scheduled to submit
such a SIP within 18 months of the conformity determination; (4) where
a federal agency made a conformity determination based on a state
commitment and the state has not submitted a SIP covering the time
period when the emissions will occur or is not scheduled to submit such
a SIP within 18 months of the conformity determination, the state must,
within 18 months, submit to EPA a revision to the existing SIP
committing to include the emissions in the future SIP revision; (5)
offset emissions may come from within the same nonattainment or
maintenance area or from a nearby area of equal or higher
classification provided the emissions from that area contribute to the
violations, or have contributed to violations in the past, in the area
with the federal action; (6) baseline emissions from the most current
calendar year with a complete emission inventory available before an
area is designated unless EPA sets another year or the emission budget
in the applicable SIP; (7) the motor vehicle emissions model previously
specified by EPA as the most current version may be used unless EPA
announces a longer grace period in the Federal Register; (8)
``Guideline on Air Quality Models'' as noted in Appendix W to 40 CFR
part 51; and (9) the attainment year specified in the SIP, or if the
SIP does not specify an attainment year, the latest attainment year
possible under the CAA as specified in three options.
z. Section 3(c)(xi)(h)(i)(D), ``For CO or directly emitted
PM10''. EPA notes that although the State updated other
sections of WAQSR Chapter 8, Section 3 to address our general
conformity provisions for PM2.5, it inadvertently did not
include the EPA revision to 40 CFR 93.158(a)(4). In our April 5, 2010
Federal Register action (75 FR 17254) we changed the language at 40 CFR
93.158(a)(4) from ``For CO or directly emitted PM10'' to
``For CO or directly emitted PM''. The reason for this change to only
``PM'' was to address both PM2.5 and PM10. EPA
does not view this inadvertent omission by the State as being an
approvability issue. Currently, all of Wyoming is designated as
``attainment/unclassifiable'' for both the 1997 annual PM2.5
NAAQS and the 2006 24-hour PM2.5 NAAQS (70 FR 944, January
5, 2005 and 74 FR 58688, November 13, 2009, respectively, and 40 CFR
81.351). Therefore, general conformity for PM2.5 does not
apply in Wyoming. If in the future any area in Wyoming is designated as
nonattainment for either the annual or 24-hour PM2.5 NAAQS,
general conformity will not apply until 1 year after the effective date
of the nonattainment designation (CAA section 176(c)(6)). Within that 1
year ``grace period'' before general conformity would apply, EPA will
require Wyoming to update Chapter 8, Section 3(c)(xi)(h)(i)(D) to
correctly reflect ``For CO or directly emitted PM'' and submit this
update to EPA as a revision to the SIP.
aa. Section 3(c)(xi)(k), ``Conformity Evaluation for Federal
Installations With Facility-Wide Emission Budgets'', revised and added
new language that included requirements and provisions addressing: (1)
Time periods; (2) the pollutants or precursors of the pollutants for
which the area is designated nonattainment or maintenance; (3) specific
quantities allowed to be emitted on an annual or seasonal basis; (4)
that the emissions from the facility along with all other emissions in
the area will not exceed the emission budget for the area; (5) specific
measures to ensure compliance with the budget; (6) the submittal to EPA
as a SIP revision and the SIP revision must be approved by EPA; (7)
that the facility-wide budget developed and adopted in accordance with
paragraph (i) of this subsection; (8) that total direct and indirect
emissions from federal actions in conjunction with all other emissions
subject to general conformity from the facility that do not exceed the
facility budget are ``presumed to conform'' to the SIP and do not
require a conformity analysis; (9) that if the total direct and
indirect emissions from the federal actions in conjunction with the
other emissions subject to general conformity from the facility exceed
the budget adopted the action must be evaluated for conformity; (10)
that if the SIP for the area includes a category for construction
emissions, the negotiated budget can exempt construction emissions from
further conformity analysis; and (11) that for emissions beyond the
time period covered by the SIP the federal agency can demonstrate
conformity with the last emission budget in the SIP, or request the
state to adopt an emissions budget for the action for inclusion in the
SIP.
bb. In addition to those items noted in section III(A)(4)(aa) of
this action, Section 3(c)(xi)(k), ``Conformity Evaluation for Federal
Installations With Facility-Wide Emission Budgets'', also revised and
added new language that included requirements and provisions
addressing: (1) Timing of offsets and mitigation measures; (2) inter-
precursor mitigation measures and offsets; and (3) early emission
reduction credit programs at federal facilities and installations
subject to federal oversight.
B. Revisions to WAQSR Chapter 8, Section 5
Wyoming added a new Section 5 to WAQSR Chapter 8 entitled
``Incorporation by reference''. This new section states that all CFR
citations in Chapter 8, including their Appendices, revised and
published as of July 1, 2011, not including any later amendments, are
incorporated by reference. The section continues with noting where
copies of the applicable CFRs are available for
[[Page 49689]]
public inspection or may be obtained, at cost, from the State.
EPA has reviewed Wyoming's revisions to WAQSR Chapter 8, Section 3,
``Conformity of general federal actions to state implementation
plans'', and the new Section 5, ``Incorporation by reference'', and has
concluded that our approval is warranted. Based on our review, we
determined that the revisions to Section 3 incorporate and address the
additional federal general conformity requirements that we promulgated
in July 2006 and April 2010. In addition, the new Section 5 that
incorporates relevant sections of the CFR is also acceptable. EPA is
approving Wyoming's December 21, 2012 SIP revision submittal in order
to update the State's general conformity requirements for federal
agencies, with applicable federal actions, and to align the State's
general conformity requirements with the federal general conformity
rule's requirements.
IV. Response to Comments
On May 7, 2013, EPA published a proposed rule in the Federal
Register in which we proposed approval of Wyoming's general conformity
requirements SIP revision that was submitted by the State of Wyoming on
December 21, 2012. Our proposed rule provided an opportunity for public
comment through June 6, 2013 (see 78 FR 26563). In response to our May
7, 2013 proposed rule, we received six comment letters in support of
our proposed rule and we did not receive any adverse comments. EPA
notes and appreciates these comments. Copies of these comment letters
are provided in the docket for this final rule.
V. Consideration of Section 110(1) of the Clean Air Act
Section 110(1) of the CAA states that a SIP revision cannot be
approved if the revision would interfere with any applicable
requirement concerning attainment and reasonable further progress
towards attainment of a NAAQS or any other applicable requirement of
the CAA. As described in section III.A.4.f. of this action, the changes
to the Wyoming SIP would not require a conformity determination for
minor new or modified stationary sources that require a permit under
the NSR permitting program (section 110(a)(2)(C) and section 173 of the
CAA)). The State of Wyoming indicates that SIP permitting regulations
prevent the State from issuing a permit if the facility would prevent
the attainment or maintenance of any ambient air quality standard
(``the proposed facility will not prevent the attainment or maintenance
of any ambient air quality standard'', WAQSR Chapter 6, Section
2(c)(ii)). With this final rule, EPA is finding that these Wyoming SIP
general conformity minor stationary source permit provisions are
adequate to ensure that this SIP revision will not interfere with any
applicable requirement concerning attainment and reasonable further
progress towards attainment of a NAAQS or any other applicable
requirement of the CAA.
VI. Final Action
EPA is approving the December 21, 2012 submitted SIP revisions to
Wyoming's WAQSR Chapter 8, Section 3, ``Conformity of general federal
actions to state implementation plans'', and Section 5, ``Incorporation
by reference''. These revisions incorporate and address the federal
general conformity rule requirements that were promulgated on July 17,
2006 and April 5, 2010. EPA is approving this Wyoming SIP revision
submittal in order to update the State's general conformity
requirements for federal agencies, with applicable federal actions, and
to align the State's general conformity requirements with the federal
general conformity rule's requirements.
VII. Statutory and Executive Order Reviews
Under the Clean Air Act, 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 Clean Air Act.
Accordingly, this action merely approves state law as meeting federal
requirements and 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 Clean Air Act; 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 October 15, 2013. 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
[[Page 49690]]
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, and Volatile organic compounds.
Dated: July 16, 2013.
Judith Wong,
Acting Regional Administrator, Region 8.
40 CFR part 52 is amended to read as follows:
PART 52--[AMENDED]
0
1. The authority citation for Part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart ZZ--Wyoming
0
2. Section 52.2620, the table in paragraph (c)(1) is amended under
Chapter 8 by revising the entry for Section 3 and by adding a new entry
for Section 5 to read as follows:
Sec. 52.2620 Identification of plan.
* * * * *
(c) * * *
(1) * * *
----------------------------------------------------------------------------------------------------------------
State adopted and EPA approval date
State citation Title/subject effective date and citation \1\ Explanations
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Chapter 8
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Section 3................ Conformity of 10/5/12, 12/19/12 8/15/13 [insert FR
general federal page number where
actions to state document begins].
implementation
plans..
Section 5................ Incorporation by 10/5/12, 12/19/12 8/15/13 [insert FR ........................
reference.. page number where
document begins].
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ In order to determine the EPA effective date for a specific provision that is listed in the table, consult
the Federal Register cited in this column for that particular provision.
* * * * *
[FR Doc. 2013-19603 Filed 8-14-13; 8:45 am]
BILLING CODE 6560-50-P
