Promulgation of State Implementation Plan Revisions; Infrastructure Requirements for the 1997 and 2006 PM2.5, 54828-54835 [2013-21613]

Download as PDF 54828 Federal Register / Vol. 78, No. 173 / Friday, September 6, 2013 / Proposed Rules • Mail: Director, Air Program, Environmental Protection Agency (EPA), Region 8, Mail Code 8P–AR, 1595 Wynkoop Street, Denver, Colorado [FR Doc. 2013–21777 Filed 9–5–13; 8:45 am] 80202–1129. BILLING CODE 6560–50–P • Hand Delivery: Director, Air Program, Environmental Protection Agency (EPA), Region 8, Mail Code 8P– ENVIRONMENTAL PROTECTION AR, 1595 Wynkoop Street, Denver, AGENCY Colorado 80202–1129. Such deliveries 40 CFR Part 52 are only accepted Monday through Friday, 8:00 a.m. to 4:30 p.m., excluding [EPA–R08–OAR–2011–0728; FRL–9900–65– federal holidays. Special arrangements Region 8] should be made for deliveries of boxed information. Promulgation of State Implementation Instructions: Direct your comments to Plan Revisions; Infrastructure Docket ID No. EPA–R08–OAR–2011– Requirements for the 1997 and 2006 0728. EPA’s policy is that all comments PM2.5 National Ambient Air Quality received will be included in the public Standards; Prevention of Significant docket without change and may be Deterioration; Wyoming made available online at AGENCY: Environmental Protection www.regulations.gov, including any Agency (EPA). personal information provided, unless ACTION: Proposed rule. the comment includes information claimed to be Confidential Business SUMMARY: EPA is proposing to partially Information (CBI) or other information approve and partially disapprove State whose disclosure is restricted by statute. Implementation Plan (SIP) submissions Do not submit information that you from the State of Wyoming to consider to be CBI or otherwise demonstrate that the SIP meets the protected through www.regulations.gov infrastructure requirements of the Clean or email. The www.regulations.gov Web Air Act (CAA) for the National Ambient site is an ‘‘anonymous access’’ system, Air Quality Standards (NAAQS) which means EPA will not know your promulgated for particulate matter less identity or contact information unless than or equal to 2.5 micrometers (mm) in you provide it in the body of your diameter (PM2.5) on July 18, 1997 and on comment. If you send an email October 17, 2006. The CAA requires that comment directly to EPA, without going each state, after a new or revised through www.regulations.gov your email NAAQS is promulgated, review their address will be automatically captured SIP to ensure that they meet the and included as part of the comment requirements of the ‘‘infrastructure that is placed in the public docket and elements’’ necessary to implement the made available on the Internet. If you new or revised NAAQS. Wyoming submit an electronic comment, EPA provided infrastructure submissions for recommends that you include your the 1997 and 2006 PM2.5 NAAQS on name and other contact information in March 26, 2008 and August 19, 2011, the body of your comment and with any respectively. EPA does not propose to disk or CD–ROM you submit. If EPA act on certain portions of the cannot read your comment due to submissions for the 2006 PM2.5 NAAQS technical difficulties and cannot contact that are intended to meet requirements you for clarification, EPA may not be related to interstate transport of air able to consider your comment. pollution. EPA will act on the Electronic files should avoid the use of remainder of the submissions in a special characters, any form of separate action. encryption, and be free of any defects or DATES: Written comments must be viruses. For additional information received on or before September 27, about EPA’s public docket visit the EPA 2013. Docket Center homepage at https:// www.epa.gov/epahome/dockets.htm. ADDRESSES: Submit your comments, For additional instructions on identified by Docket ID No. EPA–R08– submitting comments, go to section I, OAR–2011–0728, by one of the General Information, of the following methods: • https://www.regulations.gov. Follow SUPPLEMENTARY INFORMATION section of this document. the on-line instructions for submitting Docket: All documents in the docket comments. are listed in the www.regulations.gov • Email: ayala.kathy@epa.gov • Fax: (303) 312–6064 (please alert index. Although listed in the index, the individual listed in the FOR FURTHER some information is not publicly available, e.g., CBI or other information INFORMATION CONTACT if you are faxing whose disclosure is restricted by statute. comments). ehiers on DSK2VPTVN1PROD with PROPOSALS-1 Dated: August 28, 2013. Ron Curry, Regional Administrator, Region 6. VerDate Mar<15>2010 14:34 Sep 05, 2013 Jkt 229001 PO 00000 Frm 00040 Fmt 4702 Sfmt 4702 Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in 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, 8:00 a.m. to 4:00 p.m., excluding federal holidays. FOR FURTHER INFORMATION CONTACT: Kathy Ayala, Air Program, U.S. Environmental Protection Agency (EPA), Region 8, Mail Code 8P–AR, 1595 Wynkoop Street, Denver, Colorado 80202–1129. 303–312–6142, ayala.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 initials CBI mean or refer to confidential business information. (iii) The words EPA, we, us or our mean or refer to the United States Environmental Protection Agency. (iv) The initials FIP mean or refer to a Federal Implementation Plan. (v) The initials GHG mean or refer to greenhouse gases. (vi) The initials NAAQS mean or refer to national ambient air quality standards. (vii) The initials NOX mean or refer to nitrogen oxides. (viii) The initials NSR mean or refer to new source review. (ix) The initials PM mean or refer to particulate matter. (x) The initials PM2.5 mean or refer to particulate matter with an aerodynamic diameter of less than 2.5 micrometers (fine particulate matter). (xi) The initials ppm mean or refer to parts per million. (xii) The initials PSD mean or refer to Prevention of Significant Deterioration. (xiii) The initials SIP mean or refer to State Implementation Plan. (xiv) The initials SSM mean or refer to start-up, shutdown, or malfunction. (xv) The initials WAQSR mean or refer to the Wyoming Air Quality Standards and Regulation. Table of Contents I. General Information II. Background III. What is the scope of this rulemaking? IV. What infrastructure elements are required under sections 110(a)(1) and (2)? E:\FR\FM\06SEP1.SGM 06SEP1 Federal Register / Vol. 78, No. 173 / Friday, September 6, 2013 / Proposed Rules V. How did Wyoming address the infrastructure elements of sections 110(a)(1) and (2)? VI. What action is EPA proposing? VII. Statutory and Executive Order Reviews I. General Information ehiers on DSK2VPTVN1PROD with PROPOSALS-1 What should I consider as I prepare my comments for EPA? 1. Submitting Confidential Business Information (CBI). Do not submit CBI to EPA through https://www.regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information on a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. 2. Tips for preparing your comments. When submitting comments, remember to: • Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register, date, and page number); • Follow directions and organize your comments; • Explain why you agree or disagree; • Suggest alternatives and substitute language for your requested changes; • Describe any assumptions and provide any technical information and/ or data that you used; • If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced; • Provide specific examples to illustrate your concerns, and suggest alternatives; • Explain your views as clearly as possible, avoiding the use of profanity or personal threats; and, • Make sure to submit your comments by the comment period deadline identified. II. Background On July 18, 1997, EPA promulgated new NAAQS for PM2.5. Two new PM2.5 standards were added, set at 15 mg/m3, based on the three-year average of annual arithmetic mean PM2.5 concentration from single or multiple community-oriented monitors, and 65 mg/m3, based on the three-year average of the 98th percentile of 24-hour PM2.5 concentrations at each population- VerDate Mar<15>2010 14:34 Sep 05, 2013 Jkt 229001 oriented monitor within an area (62 FR 38652). On October 17, 2006, EPA promulgated a revised NAAQS for PM2.5, tightening the level of the 24hour PM2.5 standard to 35 mg/m3 and retaining the level of the annual PM2.5 standard at 15 mg/m3. EPA also retained the 24-hour PM10 and revoked the annual PM10 standard (71 FR 61144). By statute, SIPs meeting the requirements of CAA 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). CAA 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 the state develops and submits the 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 the state’s existing SIP already contains. In the case of the 1997 and 2006 PM2.5 NAAQS, states typically have met the basic program elements required in section 110(a)(2) through earlier SIP submissions in connection with previous NAAQS. III. What is the scope of this rulemaking? This rulemaking will not cover four substantive issues that are not integral to acting on a state’s infrastructure SIP submission: (1) Existing provisions related to excess emissions during periods of start-up, shutdown, or malfunction (SSM) at sources, that may be contrary to the CAA and EPA’s policies addressing such excess emissions (‘‘SSM’’); (2) 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’’); (3) existing provisions for minor source NSR programs that may be inconsistent with the requirements of the CAA and EPA’s regulations that pertain to such programs (‘‘minor source NSR’’); and (4) existing provisions for prevention of significant deterioration PO 00000 Frm 00041 Fmt 4702 Sfmt 4702 54829 (PSD) programs that may be inconsistent with current requirements of EPA’s ‘‘Final NSR Improvement Rule,’’ 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (‘‘NSR Reform’’). Instead, EPA has indicated that it has other authority to address any such existing SIP defects in other rulemakings, as appropriate. A detailed rationale for why these four substantive issues are not part of the scope of infrastructure SIP rulemakings can be found in EPA’s July 13, 2011 final rule entitled, ‘‘Infrastructure SIP Requirements for the 1997 8-hour Ozone and PM2.5 National Ambient Air Quality Standards’’ in the section entitled, ‘‘What is the scope of this final rulemaking?’’ (see 76 FR 41075 at 41076–41079). IV. What infrastructure elements are required under sections 110(a)(1) and (2)? Section 110(a)(1) provides the procedural and timing requirements for SIP submissions after a new or revised NAAQS is promulgated. Section 110(a)(2) lists specific elements the SIP must contain or satisfy. These infrastructure elements include requirements such as modeling, monitoring, and emissions inventories, which are designed to assure attainment and maintenance of the NAAQS. The elements that are the subject of this action are listed below. • 110(a)(2)(A): Emission limits and other control measures. • 110(a)(2)(B): Ambient air quality monitoring/data system. • 110(a)(2)(C): Program for enforcement of control measures. • 110(a)(2)(D): Interstate transport. • 110(a)(2)(E): Adequate resources and authority, conflict of interest, and oversight of local governments and regional agencies. • 110(a)(2)(F): Stationary source monitoring and reporting. • 110(a)(2)(G): Emergency powers. • 110(a)(2)(H): Future SIP revisions. • 110(a)(2)(J): Consultation with government officials; public notification; and PSD and visibility protection. • 110(a)(2)(K): Air quality modeling/ data. • 110(a)(2)(L): Permitting fees. • 110(a)(2)(M): Consultation/ participation by affected local entities. A detailed discussion of each of these elements is contained in the next section. Element 110(a)(2)(D)(i)(I), Interstate transport of pollutants which contribute significantly to nonattainment in, or interfere with maintenance by, any other state will be acted upon in a E:\FR\FM\06SEP1.SGM 06SEP1 54830 Federal Register / Vol. 78, No. 173 / Friday, September 6, 2013 / Proposed Rules ehiers on DSK2VPTVN1PROD with PROPOSALS-1 separate action. EPA will also act on the visibility element of section 110(a)(2)(D)(i)(II) in a separate action. Two elements identified in section 110(a)(2) are not governed by the three year submission deadline of section 110(a)(1) and are therefore not addressed in this action. These elements relate to part D of Title I of the CAA, and submissions to satisfy them are not due within three years after promulgation of a new or revised NAAQS, but rather are due at the same time nonattainment area plan requirements are due under section 172. The two elements are: (1) Section 110(a)(2)(C) to the extent it refers to permit programs (known as ‘‘nonattainment new source review (NSR)’’) required under part D, and (2) section 110(a)(2)(I), pertaining to the nonattainment planning requirements of part D. As a result, this action does not address infrastructure elements related to the nonattainment NSR portion of section 110(a)(2)(C) or related to 110(a)(2)(I). V. How did Wyoming address the infrastructure elements of sections 110(a)(1) and (2)? 1. Emission limits and other control measures: Section 110(a)(2)(A) requires SIPs to include enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance as may be necessary or appropriate to meet the applicable requirements of this Act. a. Wyoming’s response to this requirement: The State’s March 26, 2008 submission for the 1997 PM2.5 infrastructure requirements and August 19, 2011 submission for the 2006 PM2.5 infrastructure requirements cite three non-regulatory documents (e.g., Control Strategy, Source Surveillance, and Compliance Schedule) which were approved by EPA on May 31, 1972 (37 FR 10842). The State’s submissions also cite regulatory documents included in the Wyoming Air Quality Standards and Regulation (WAQSR) included in Chapters 1, 3, 4, 8, 10 and 13. b. EPA analysis: Wyoming’s SIP meets the requirements of CAA section 110(a)(2)(A) for the 1997 and 2006 PM2.5 NAAQS, subject to the following clarifications. First, Wyoming has no areas designated as nonattainment for the 1997 and 2006 PM2.5 NAAQS and, therefore, is not required to establish enforceable emission limitations or other emission reduction measures to attain the 1997 and 2006 PM2.5 NAAQS. The SIP provisions cited by Wyoming include emissions standards for VerDate Mar<15>2010 14:34 Sep 05, 2013 Jkt 229001 particulate matter (WAQSR Chapter 2, Section 2). Wyoming also regulates emissions of PM2.5 and its precursors through the State’s approved PSD and minor NSR programs. This is sufficient to meet the requirements of 110(a)(2)(A) for the 1997 and 2006 PM2.5 NAAQS. Second, in this action, EPA is not proposing to approve or disapprove any existing state rules with regard to director’s discretion or variance provisions. A number of states have such provisions which are contrary to the CAA and existing EPA guidance (52 FR 45109, November 24, 1987), and the Agency plans to take action in the future to address such state regulations. In the meantime, EPA encourages any state having a director’s discretion or variance provision which is contrary to the CAA and EPA guidance to take steps to correct the deficiency as soon as possible. Finally, in this action, EPA is also not proposing to approve or disapprove any existing state provisions with regard to excess emissions during startup, shutdown, or malfunction (SSM) of operations at a facility. A number of states have SSM provisions which are contrary to the CAA and existing EPA guidance 1 and the Agency is addressing such state regulations separately (78 FR 12460, February 22, 2013). 2. Ambient air quality monitoring/ data system: Section 110(a)(2)(B) requires SIPs to provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to ‘‘(i) monitor, compile, and analyze data on ambient air quality, and (ii) upon request, make such data available to the Administrator.’’ a. Wyoming’s response to this requirement: The State’s submissions for the 1997 and 2006 PM2.5 infrastructure requirements cite three non-regulatory documents (e.g., Air Quality Surveillance, Air Quality Surveillance Network, and Implementation Plan for Lead). The State’s submissions also cite regulatory documents included in Chapters 1 and 2 of the WAQSR. b. EPA analysis: Wyoming’s air monitoring program and data systems meet the requirements of CAA section 110(a)(2)(B) for the 1997 and 2006 PM2.5 NAAQS. The Wyoming Ambient Air Monitoring Annual Network Plan for 1 Steven Herman, Assistant Administrator for Enforcement and Compliance Assurance, and Robert Perciasepe, Assistant Administrator for Air and Radiation, Memorandum to EPA Air Division Directors, ‘‘State Implementation Plans (SIPs): Policy Regarding Emissions During Malfunctions, Startup, and Shutdown.’’ (September 20, 1999). PO 00000 Frm 00042 Fmt 4702 Sfmt 4702 2011 was approved by EPA Region 8 on February 29, 2012. 3. Program for enforcement of control measures: Section 110(a)(2)(C) requires SIPs to include a program to provide for the enforcement of the measures described in subparagraph (A), and regulation of the modification and construction of any stationary source within the areas covered by the plan as necessary to assure that NAAQS are achieved, including a permit program as required in parts C and D of the Act. a. Wyoming’s response to this requirement: The State’s submissions for the 1997 and 2006 PM2.5 infrastructure requirements cite four non-regulatory documents (e.g., Legal Authority, Source Surveillance, Review of New Sources and Modifications, and March 3, 2008 memorandum from Cynthia Cody [EPA Region 8, Air Quality Planning Unit Chief]). The State’s submissions also cite regulatory documents included in the WAQSR Chapter 6. b. EPA analysis: To generally meet the requirements of section 110(a)(2)(C), the State is required to have SIP-approved PSD, nonattainment NSR, and minor NSR permitting programs adequate to implement the 1997 and 2006 PM2.5 NAAQS. As explained above, in this action EPA is not evaluating nonattainment related provisions, such as the nonattainment NSR program required by part D of the Act. EPA is evaluating the State’s PSD program as required by part C of the Act, and the State’s minor NSR program as required by 110(a)(2)(C). PSD Requirements Wyoming has a SIP-approved PSD program that meets the general requirements of part C of the Act (44 FR 51977, September 6, 1979). To satisfy the particular requirements of section 110(a)(2)(C), states should have a PSD program that applies to all regulated NSR pollutants, including greenhouse gases (GHGs). See 40 CFR 51.166(b)(48) and (b)(49). The PSD program should reflect current requirements for these pollutants. In particular, for three pollutants—ozone, PM2.5 and GHGs— there are additional regulatory requirements (set out in portions of 40 CFR 51.166) that we consider in evaluating Wyoming’s PSD program. On July 25, 2011 (76 FR 44265), we approved a revision to the Wyoming PSD program that addressed the PSD requirements of the Phase 2 Ozone Implementation Rule promulgated on November 29, 2005 (70 FR 71612). As a result, the approved Wyoming PSD program meets the current requirements for ozone. E:\FR\FM\06SEP1.SGM 06SEP1 ehiers on DSK2VPTVN1PROD with PROPOSALS-1 Federal Register / Vol. 78, No. 173 / Friday, September 6, 2013 / Proposed Rules With respect to GHGs, on June 24, 2013 (78 FR 37752) EPA proposed to approve a submittal that revises Wyoming’s PSD program to regulate GHGs and to adopt the thresholds set out in EPA’s June 3, 2010 ‘‘PSD and Title V Greenhouse Gas Tailoring Final Rule’’ (75 FR 31514). In that proposal, EPA accordingly also proposed to rescind the Federal Implementation Plan (FIP) for GHG permitting in Wyoming that EPA had promulgated on December 30, 2010 (75 FR 82246). With EPA’s proposed approval of the relevant portions of the revisions to Wyoming’s PSD program and rescission of the FIP, Wyoming’s PSD program will meet current requirements for GHGs. Finally, we evaluate the PSD program with respect to current requirements for PM2.5. In particular, on May 16, 2008, EPA promulgated the rule, ‘‘Implementation of the New Source Review Program for Particulate Matter Less Than 2.5 Micrometers (PM2.5) and on October 20, 2010 EPA promulgated the rule, ‘‘Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM2.5)—Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC)’’ (75 FR 64864). EPA regards adoption of these PM2.5 rules as a necessary requirement when assessing a PSD program for the purposes of element (C). On January 4, 2013, the U.S. Court of Appeals, in Natural Resources Defense Council v. EPA, 706 F.3d 428 (D.C. Cir.), issued a judgment that remanded EPA’s 2007 and 2008 rules implementing the 1997 PM2.5 NAAQS. The Court ordered EPA to ‘‘repromulgate these rules pursuant to Subpart 4 consistent with this opinion.’’ Id. at 437. Subpart 4 of part D, Title 1 of the CAA establishes additional provisions for particulate matter nonattainment areas. The 2008 implementation rule addressed by the court decision, ‘‘Implementation of New Source Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers (PM2.5),’’ (73 FR 28321, May 16, 2008), promulgated New Source Review (NSR) requirements for implementation of PM2.5 in nonattainment areas (nonattainment NSR) and attainment/unclassifiable areas (PSD). As the requirements of subpart 4 only pertain to nonattainment areas, EPA does not consider the portions of the 2008 Implementation rule that address requirements for PM2.5 attainment and unclassifiable areas to be affected by the Court’s opinion. Moreover, EPA does not anticipate the need to revise any PSD requirements promulgated in the 2008 Implementation rule in order to comply VerDate Mar<15>2010 14:34 Sep 05, 2013 Jkt 229001 with the Court’s decision. Accordingly, EPA’s approval of Wyoming’s infrastructure SIP as to elements (C) or (J) with respect to the PSD requirements promulgated by the 2008 Implementation rule does not conflict with the Court’s opinion. The Court’s decision with respect to the nonattainment NSR requirements promulgated by the 2008 Implementation rule also does not affect EPA’s action on the present infrastructure action. EPA interprets the Act to exclude nonattainment area requirements, including requirements associated with a nonattainment NSR program, from infrastructure SIP submissions due 3 years after adoption or revision of a NAAQS. Instead, these elements are typically referred to as nonattainment SIP or attainment plan elements, which would be due by the dates statutorily prescribed under subpart 2 through 5 under part D, extending as far as 10 years following designations for some elements. The second PSD requirement for PM2.5 is contained in EPA’s October 20, 2010 rule, ‘‘Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM2.5)—Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC)’’ (75 FR 64864). EPA regards adoption of the PM2.5 increments as a necessary requirement when assessing a PSD program for the purposes of element (C). On May 10, 2011, the State submitted revisions to Chapter 6, section 4 of the WAQSR that adopted all elements of the 2008 Implementation Rule and on May 24, 2012, the State submitted revisions to Chapter 6, Section 4 of the WAQSR that adopted all elements of the 2010 Increment Rule. These submitted revisions make Wyoming’s PSD program up to date with respect to current requirements for PM2.5. The May 10, 2011 submittal, which incorporated the 2008 Implementation Rule, was approved in a previous action (see 76 FR 44265). We propose to approve the necessary portions of Wyoming’s May 24, 2012 submission to reflect the 2010 PM2.5 Increment Rule; specifically 40 CFR part 166, paragraphs (b)(14)(i), (ii), (b)(15)(i), and paragraph (c)(1). EPA is proposing to approve the following revisions to Chapter 6, Section 4: Chapter 6, Section 4(a) Definitions of ‘‘Baseline area’’, ‘‘Major source baseline date’’, and ‘‘Minor source baseline date’’; Chapter 6, Section 4(b)(i)(A)(I) Table 1 and Table 1 (1), Chapter 6, Section 4(b)(J)(v)(viii), and Section 14, as submitted on May 24, 2012. We are not proposing to act on any other portions of the May 24, 2012 submittal, PO 00000 Frm 00043 Fmt 4702 Sfmt 4702 54831 including the adoption of significant impact levels (SILs) and significant monitoring concentrations (SMCs) for PM2.5. With these revisions, Wyoming’s SIPapproved PSD program will meet current requirements for PM2.5. As a result, EPA is proposing to approve Wyoming’s infrastructure SIP for the 1997 and 2006 PM2.5 NAAQS with respect to the requirement in section 110(a)(2)(C) to include a permit program in the SIP as required by part C of the Act. Minor NSR With regard to minor NSR, in this action EPA is proposing to approve Wyoming’s infrastructure SIP for the 1997 and 2006 PM2.5 NAAQS with respect to the general requirement in section 110(a)(2)(C) to include a program in the SIP that regulates the modification and construction of any stationary source as necessary to assure that the NAAQS are achieved. Wyoming’s approved minor NSR program is found in Chapter 6, section 2 of the WAQSR. EPA previously approved Wyoming’s minor NSR program into the SIP (at that time as Chapter 1, section 21), and has subsequently approved revisions to the program, and at those times there were no objections to the provisions of this program. (See, for example, 47 FR 5892, February 9, 1982.) Since then, the State and EPA have relied on the State’s existing minor NSR program to assure that new and modified sources not captured by the major NSR permitting programs do not interfere with attainment and maintenance of the NAAQS. EPA is not proposing to approve or disapprove the State’s existing minor NSR program itself to the extent that it is inconsistent with EPA’s regulations governing this program. A number of states may have minor NSR provisions that are contrary to the existing EPA regulations for this program. EPA intends to work with states to reconcile state minor NSR programs with EPA’s regulatory provisions for the program. The statutory requirements of section 110(a)(2)(C) provide for considerable flexibility in designing minor NSR programs, and it may be time to revisit the regulatory requirements for this program to give the states an appropriate level of flexibility to design a program that meets their particular air quality concerns, while assuring reasonable consistency across the country in protecting the NAAQS with respect to new and modified minor sources. E:\FR\FM\06SEP1.SGM 06SEP1 ehiers on DSK2VPTVN1PROD with PROPOSALS-1 54832 Federal Register / Vol. 78, No. 173 / Friday, September 6, 2013 / Proposed Rules 4. Interstate Transport: Section 110(a)(2)(D)(i) is subdivided into four ‘‘prongs,’’ two under 110(a)(2)(D)(i)(I) and two under 110(a)(2)(D)(i)(II). The two prongs under 110(a)(2)(D)(i)(I) require SIPs to contain adequate provisions to prohibit emissions that (prong 1) contribute significantly to nonattainment in any other state with respect to any such national primary or secondary NAAQS, and (prong 2) interfere with maintenance by any other state with respect to the same NAAQS. The two prongs under 110(a)(2)(D)(i)(II) require SIPs to contain adequate provisions to prohibit emissions that interfere with measure required to be included in the applicable implantation plan for any other state under part C (prong 3) to prevent significant deterioration of air quality or (prong 4) to protect visibility. As noted, we are not proposing to act on Wyoming’s submission to meet the requirements of section 110(a)(2)(D)(i) for the 2006 PM2.5 NAAQS. On May 28, 2008 (73 FR 26019), we approved Wyoming’s submission to meet the requirements of section 110(a)(2)(D)(i) for the 1997 PM2.5 NAAQS. 5. Interstate and International transport provisions: Section 110(a)(2)(D)(ii) requires that each SIP shall contain adequate provisions insuring compliance with applicable requirements of sections 126 and 115 (relating to interstate and international pollution abatement). a. Wyoming’s response to this requirement: The State’s submissions for the 1997 and 2006 PM2.5 infrastructure requirements cited regulatory requirements included in the WAQSR Chapter 6, Section 2, Permit requirements for construction modification and operation. b. EPA Analysis: Section 126(a) of the CAA requires notification to affected, nearby states of major proposed new (or modified) sources. Sections 126(b) and (c) pertain to petitions by affected states to the Administrator regarding sources violating the ‘‘interstate transport’’ provisions of section 110(a)(2)(D)(i). Section 115 of the CAA similarly pertains to international transport of air pollution. WAQSR Chapter 6, Section 2, specifically paragraph (m) meets the requirements of CAA section 126(a) for the 1997 and 2006 PM2.5 NAAQS. Final approval of this language became effective January 30, 1995 (59 FR 60902, Nov. 29, 1994). Final approval of the renumbering of this language became effective August 27, 2004 (See 69 FR 44965, July 28, 2004). Wyoming has no pending obligations under sections 126(c) or 115(b); VerDate Mar<15>2010 14:34 Sep 05, 2013 Jkt 229001 therefore, its SIP currently meets the requirements of those sections. The SIP therefore meets the requirements of 110(a)(2)(D)(ii) for the 1997 and 2006 PM2.5 NAAQS. 6. Adequate resources and authority: Section 110(a)(2)(E)(i) requires states to provide necessary assurances that the state will have adequate personnel, funding, and authority under state law to carry out the SIP (and is not prohibited by any provision of federal or state law from carrying out the SIP or portion thereof). Section 110(a)(2)(E)(iii) requires states to ‘‘provide necessary assurances that, where the State has relied on a local or regional government, agency, or instrumentality for the implementation of any [SIP] provision, the State has responsibility for ensuring adequate implementation of such [SIP] provision.’’ a. Wyoming’s response to this requirement: The State’s submissions for the 1997 and 2006 PM2.5 infrastructure requirements cite two non-regulatory documents (e.g., Resources and Legal Authority), approved by EPA on May 31, 1972 (37 FR 10842). The State’s submissions for 1997 and 2006 PM2.5 infrastructure requirements cite regulatory requirements included in the WAQSR Chapter 1, Section 2, Authority and the Wyoming Environmental Quality Act Articles 1 and 2 (Chapter 11, Title 35 of the Wyoming Statutes). b. EPA Analysis: The provisions in Articles 1 and 2 of the Wyoming Environmental Quality Act (Chapter 11, Title 35 of the Wyoming Statutes) give the State adequate authority to carry out the SIP. The State receives sections 103 and 105 grant funds through its Performance Partnership Grant along with required state matching funds to provide funding necessary to carry out Wyoming’s SIP requirements. The State does not rely upon any other local or regional government, agency or instrumentality for implementation of the SIP. 7. State boards: Section 110(a)(2)(E)(ii) requires that the state comply with the requirements respecting state boards under section 128. a. Wyoming’s response to this requirement: The State’s submissions for the 1997 and 2006 PM2.5 infrastructure requirements cite two non-regulatory documents (e.g., Resources and Legal Authority), approved by EPA on May 31, 1972 (37 FR 10842). The State’s submissions for 1997 and 2006 PM2.5 infrastructure requirements cite regulatory requirements included in the WAQSR Chapter 1, Section 2, Authority and the PO 00000 Frm 00044 Fmt 4702 Sfmt 4702 Wyoming Environmental Quality Act Articles 1 and 2 (Chapter 11, Title 35 of the Wyoming Statutes). b. EPA Analysis: Section 110(a)(2)(E)(ii) of the CAA requires that the State comply with section 128 of the CAA. Section 128 was added in the 1977 amendments to the CAA as the result of a conference agreement. Titled ‘‘State boards,’’ it provides in relevant part: (a) Not later than the date one year after August 7, 1977, each applicable implementation plan shall contain requirements that— (1) Any board or body which approves permits or enforcement orders under [this Act] shall have at least a majority of members who represent the public interest and do not derive any significant portion of their income from persons subject to permits or enforcement orders under [this Act], and, (2) Any potential conflicts of interest by members of such board or body or the head of an executive agency with similar powers be adequately disclosed. In 1978, EPA issued a guidance memorandum recommending ways states could meet the requirements of section 128, including suggested interpretations of certain key terms in section 128.2 In this notice, we additionally discuss various relevant aspects of section 128. We first note that, in the conference report on the 1977 amendments to the CAA, the conference committee stated, ‘‘It is the responsibility of each state to determine the specific requirements to meet the general requirements of [section 128].’’ 3 We find that this legislative history indicates that Congress intended states to have some latitude in the specifics of implementing section 128, so long as the implementation is consistent with the plain text of the section. We also note that Congress explicitly provided in section 128 that states could elect to adopt more stringent requirements, as long as the minimum requirements of section 128 are met. As a result, we note three considerations for implementing section 128. First, section 128 must be implemented through provisions that EPA approves into the SIP and are made federally enforceable. Section 128 explicitly mandates that each SIP ‘‘shall contain requirements’’ that satisfy subsections 128(a)(1) and 128(a)(2). A 2 Memorandum from David O. Bickart, Deputy General Counsel, to Regional Air Directors, Guidance to States for Meeting Conflict of Interest Requirements of Section 128 (Mar. 2, 1978). 3 H.R. Rep. 95–564 (1977), reprinted in 3 Legislative History of the Clean Air Act Amendments of 1977, 526–27 (1978). E:\FR\FM\06SEP1.SGM 06SEP1 ehiers on DSK2VPTVN1PROD with PROPOSALS-1 Federal Register / Vol. 78, No. 173 / Friday, September 6, 2013 / Proposed Rules mere narrative description of state statutes or rules, or of a state’s current or past practice in constituting a board or body and in disclosing potential conflicts of interest, is not a requirement contained in the SIP and does not satisfy the plain text of section 128. Second, subsection 128(a)(1) applies only to states that have a board or body that is composed of multiple individuals and that, among its duties, approves permits or enforcement orders under the CAA. It does not apply in states that have no such multi-member board or body that performs these functions, and where instead a single head of an agency or other similar official approves permits or enforcement orders under the CAA. This flows from the text of section 128, for two reasons. First, as subsection 128(a)(1) refers to a majority of members in the plural, we think it reasonable to read subsection 128(a)(1) as not creating any requirements for an individual with sole authority for approving permits or enforcement orders under the CAA. Second, subsection 128(a)(2) explicitly applies to the head of an executive agency with ‘‘similar powers’’ to a board or body that approves permits or enforcement orders under the CAA, while subsection 128(a)(1) omits any reference to heads of executive agencies. We infer that subsection 128(a)(1) should not apply to heads of executive agencies who approve permits or enforcement orders. Third, subsection 128(a)(2) applies to all states, regardless of whether the state has a multi-member board or body that approves permits or enforcement orders under the CAA. Although the title of section 128 is ‘‘State boards,’’ the language of subsection 128(a)(2) explicitly applies where the head of an executive agency, rather than a board or body, approves permits or enforcement orders. In instances where the head of an executive agency delegates his or her power to approve permits or enforcement orders, or where statutory authority to approve permits or enforcement orders is nominally vested in another state official, the requirement to adequately disclose potential conflicts of interest still applies. In other words, EPA thinks that SIPs for all states, regardless of whether a state board or body approves permits or enforcement orders under the CAA, must contain adequate provisions for disclosure of potential conflicts of interest in order to meet the requirements of subsection 128(a)(2). Wyoming’s Environmental Quality Act establishes the Environmental Quality Council, a separate government body. See Wyoming Statutes 35–11– VerDate Mar<15>2010 14:34 Sep 05, 2013 Jkt 229001 111(a). The members of the Council are appointed by the Governor and serve at the Governor’s pleasure. Among the duties of the Council are conducting hearings in any case contesting the administration or enforcement of any law, rule, regulation, standard or order issued or administered by DEQ or by any division of DEQ. Id. 35–11– 111(a)(iii). In particular, a person subject to a DEQ order may request a hearing before the Council. Id. 35–11– 702(c)(ii)–(iv). The Council must also conduct hearings in any case contesting the grant, denial, suspension, revocation or renewal of any permit authorized or required by the Environmental Quality Act. Id. 35–11–111(a)(iv). Under Article 2, Air Quality, and Article 8, Permits, of the Environmental Quality Act, any applicant for an air permit may petition the Council for a hearing to contest DEQ’s decision on the permit. See id. 35–11–208, –802. Although Article 2 does not explicitly provide for it, third parties may contest DEQ’s decision on an air permit under Wyoming Statutes section 35–11–111(a)(iv), mentioned above. E.g,. In the Matter of: Medicine Bow Fuel & Power, LLC, No. 09–2801, at 2–3 (Wyo. Envtl. Quality Council, Feb. 5, 2010). Given the duties and authorities of the Council, the Council appears to be a ‘‘board or body which approves permits or enforcement orders’’ under the CAA.4 However, Wyoming’s approved SIP does not contain any enforceable provisions to satisfy the requirements of subsection 128(a)(1) as applied to the Council.5 In addition, Wyoming’s SIP does not contain any enforceable provisions to satisfy the requirements of subsection 128(a)(2), which applies in all states. As a result, Wyoming’s SIP does not satisfy the requirements of sections 128 and 110(a)(2)(E)(ii), and EPA proposes to disapprove Wyoming’s submissions for element (E)(ii) for the 1997 and 2006 PM2.5 NAAQS. 8. Stationary source monitoring system: Section 110(a)(2)(F) requires: (i) the installation, maintenance, and replacement of equipment, and the implementation of other necessary 4 See, for example, 78 FR 32613 (May 31, 2013), for a discussion of the phrase ‘‘board or body which approves permits or enforcement orders.’’ 5 Wyoming Statutes section 35–11–111(a) does require a member of the Council that receives more than ten percent of the member’s income from any permit applicant to not act on a permit application from that applicant. However, this provision is not in Wyoming’s SIP and does not address income from persons subject to enforcement orders or persons who already hold (are ‘‘subject to’’) a permit. Even if the provision were in Wyoming’s SIP, EPA does not interpret the requirement in section 128(a)(1) regarding significant income to be satisfied solely by this sort of recusal provision. See 77 FR 66398 (Nov. 5, 2012). PO 00000 Frm 00045 Fmt 4702 Sfmt 4702 54833 steps, by owners or operators of stationary sources to monitor emissions from such sources, (ii) periodic reports on the nature and amounts of emissions and emissionsrelated data from such sources, and (iii) correlation of such reports by the state agency with any emission limitations or standards established pursuant to the Act, which reports shall be available at reasonable times for public inspection. a. Wyoming’s response to this requirement: The State’s submissions for the 1997 and 2006 PM2.5 infrastructure requirements cite regulatory requirements included in the 1979 WAQSR Chapter 6, Section 2, Permit requirements for construction, modification, and operation, and Chapter 7, Sections 2, and Section 23, Continuous monitoring requirements for existing sources. b. EPA Analysis: In addition to the specific monitoring provisions cited by Wyoming, the SIP provides for monitoring, recordkeeping, and reporting requirements for sources subject to minor and major source permitting. (See WAQSR Chapter 6, section 2.) Wyoming’s SIP therefore meets the requirements of section 110(a)(2)(F) for the 1997 and 2006 PM2.5 NAAQS. 9. Emergency powers: Section 110(a)(2)(G) requires states to provide for authority to address activities causing imminent and substantial endangerment to public health, including contingency plans to implement the emergency episode provisions in their SIPs. a. Wyoming’s response to this requirement: The State’s submissions for the 1997 and 2006 PM2.5 infrastructure requirements cite three non-regulatory documents (e.g., Emergency Episode Plan, Emergency Episode Contingency Plan, and a March 3, 2008 memorandum from Cynthia Cody, [EPA Region 8, Air Quality Planning Unit Chief]). The State’s submissions for 1997 and 2006 PM2.5 infrastructure requirements cite regulatory requirements included in the WAQSR Chapter 12, Section 2, Air pollution emergency episodes and the Wyoming Environmental Quality Act, Article 1, Power of the director to issue emergency orders, (Section 35–11–115 of the Wyoming Statues). b. EPA analysis: Section 35–11–115 of the Wyoming Statutes gives the Director of the Wyoming Department of Environmental Quality (DEQ) comparable emergency powers to those in section 303 of the Act. In our 2009 guidance for infrastructure requirements for the 2006 PM2.5 NAAQS, we E:\FR\FM\06SEP1.SGM 06SEP1 ehiers on DSK2VPTVN1PROD with PROPOSALS-1 54834 Federal Register / Vol. 78, No. 173 / Friday, September 6, 2013 / Proposed Rules suggested that states that had monitored and recorded 24-hour PM2.5 levels greater than 140.4 mg/m3, using the most recent three years of data, should develop emergency episode plans for the areas with the monitored values. We also suggested that, if these levels had not been exceeded, states could certify that they had adequate general emergency authority to address PM2.5 episodes. In this rulemaking, we view these suggestions as still appropriate in assessing Wyoming’s SIP for this element. Wyoming has not monitored any values above the 140.4 mg/m3 level for PM2.5 for the past three years. Since this level was not exceeded in any area of the state and the State has demonstrated that it has appropriate general emergency powers to address PM2.5 related episodes, the State is not required at this point to have a specific contingency plan for PM2.5. The SIP therefore meets the requirements of 110(a)(2)(G) for the 1997 and 2006 PM2.5 NAAQS. 10. Future SIP revisions: Section 110(a)(2)(H) requires that SIPs provide for revision of such plan: (i) from time to time as may be necessary to take account of revisions of such national primary or secondary ambient air quality standard or the availability of improved or more expeditious methods of attaining such standard, and (ii), except as provided in paragraph (3)(C), whenever the Administrator finds on the basis of information available to the Administrator that the SIP is substantially inadequate to attain the NAAQS which it implements or to otherwise comply with any additional requirements under this [Act]. a. Wyoming’s response to this requirement: The State’s submissions for the 1997 and 2006 PM2.5 infrastructure requirements cite a nonregulatory document, Implementation Plan Reviews, approved by EPA on April 19, 1983 (48 FR 16682). b. EPA analysis: The general provisions in Article 1 of the Wyoming Environmental Quality Act (Article 1, Chapter 11, Title 35 of the Wyoming Statutes) and the particular provision in Article 2 at section 35–11–202 of the Wyoming Statutes give the State sufficient authority to revise the SIP as required by section 110(a)(2)(H). 11. Consultation with government officials, public notification, PSD and visibility protection: Section 110(a)(2)(J) requires that each SIP ‘‘meet the applicable requirements of section 121 of this title (relating to consultation), section 127 of this title (relating to public notification), and part C of this VerDate Mar<15>2010 14:34 Sep 05, 2013 Jkt 229001 subchapter (relating to PSD of air quality and visibility protection).’’ a. Wyoming’s response to this requirement: The State’s submissions for the 1997 and 2006 PM2.5 infrastructure requirements cite one non-regulatory document relative to consultation with government officials (e.g., Consultation, approved by EPA July 2, 1979 (44 FR 38473)), one regulatory document relative to public notification (e.g., Public Notification of Air Quality, approved by EPA July 2, 1979 (44 FR 38473)) and two nonregulatory documents relative to PSD and visibility protection (Wyoming State Implementation Plan for Class I Visibility Protection and a March 3, 2008 memorandum from Cynthia Cody, [EPA Region 8, Air Quality Planning Unit Chief]). The State’s submissions for 1997 and 2006 PM2.5 infrastructure requirements cite regulatory requirements relative to PSD and visibility protection included in the WAQSR, Chapter 6, Prevention of significant deterioration. b. EPA Analysis: The State has demonstrated that it has the authority and rules in place to provide a process of consultation with general purpose local governments, designated organizations of elected officials of local governments and any Federal Land Manager having authority over federal land to which the SIP applies, consistent with the requirements of CAA section 121. Furthermore, EPA previously approved portions of the Wyoming SIP meeting the requirements of CAA section 127. (44 FR 38473, July 2, 1979.) Wyoming’s SIP regulations for its PSD program were first federally-approved and made part of the SIP on September 6, 1979 (4 FR 51977). EPA has further evaluated the State’s SIP-approved PSD program in section V.3, element 110(a)(2)(C) of this proposed action. As explained in that section, we propose to approve Wyoming’s infrastructure SIPs for the 1997 and 2006 PM2.5 NAAQS with respect to the requirement in element (C) to have a permit program as required by Part C of the Act, concurrently with our proposed approval of Wyoming’s submittals to adopt the PM2.5 increments and to regulate GHGs under the PSD program. We correspondingly propose to approve the infrastructure SIPs for the 1997 and 2006 PM2.5 NAAQS with respect to the requirement in element (J) that the SIP meet the applicable requirements of Part C with respect to PSD. Finally, with regard to the applicable requirements for visibility protection, EPA recognizes that states are subject to visibility and regional haze program PO 00000 Frm 00046 Fmt 4702 Sfmt 4702 requirements under part C of the act. In the event of the establishment of a new NAAQS, however, the visibility and regional haze program requirements under part C do not change. Thus we find that there is no new visibility obligation ‘‘triggered’’ under section 110(a)(2)(J) when a new NAAQS becomes effective. 12. Air quality and modeling/data: Section 110(a)(2)(K) requires that each SIP provide for: (i) the performance of such air quality modeling as the Administrator may prescribe for the purpose of predicting the effect on ambient air quality of any emissions of any air pollutant for which the Administrator has established a NAAQS, and (ii) the submission, upon request, of data related to such air quality modeling to the Administrator. a. Wyoming’s response to this requirement: The State’s submissions for the 1997 and 2006 PM2.5 infrastructure requirements cite regulatory requirements included in the WAQSR Chapter 6, Sections 2, 4, 21 and 24. b. EPA Analysis: Wyoming’s SIP meets the requirements of CAA section 110(a)(2)(K) for the 1997 and 2006 PM2.5 NAAQS. In particular, Wyoming’s PSD program requires that estimates of ambient air concentrations be based on applicable air quality models specified in Appendix W of 40 CFR part 51, and that modification or substitution of a model specified in Appendix W must be approved by the Administrator. (See WAQSR Chapter 6, section 4(b)(iv).) As a result, the SIP provides for such air quality modeling as the Administrator has prescribed. 13. Permitting fees: Section 110(a)(2)(L) requires SIPs to: require the owner or operator of each major stationary source to pay to the permitting authority, as a condition of any permit required under this act, a fee sufficient to cover (i) the reasonable costs of reviewing and acting upon any application for such a permit, and (ii) if the owner or operator receives a permit for such source, the reasonable costs of implementing and enforcing the terms and conditions of any such permit (not including any court costs or other costs associated with any enforcement action), until such fee requirement is superseded with respect to such sources by the Administrator’s approval of a fee program under [title] V. a. Wyoming’s response to this requirement: The State’s submissions for the 1997 and 2006 PM2.5 infrastructure requirements cite regulatory requirements included in the WAQSR Chapter 6, Permit requirements E:\FR\FM\06SEP1.SGM 06SEP1 Federal Register / Vol. 78, No. 173 / Friday, September 6, 2013 / Proposed Rules for construction, modification, and operation. b. EPA Analysis: Final approval of Wyoming’s title V operating permit program became effective April 23, 1999 (64 FR 8523, Feb. 22, 1990). Interim approval of the program became effective February 21, 1995 (60 FR 4563, January 19, 1995). As discussed in a previous direct final rule (which received comments) for interim approval of the title V program (59 FR 48802, September 23, 1994), the State demonstrated that the fees collected were sufficient to administer the program. In addition, WAQSR chapter 6, section 2, paragraph (o) requires applicants for construction permits to pay the costs for DEQ to review and act on the permit applications. Wyoming’s submission meets the requirements of section 110(a)(2)(L) for the 1997 and 2006 PM2.5 NAAQS. 14. Consultation/participation by affected local entities: Section 110(a)(2)(M) requires states to provide for consultation and participation in SIP development by local political subdivisions affected by the SIP. a. Wyoming’s response to this requirement: The State’s submissions for the 1997 and 2006 PM2.5 infrastructure requirements cite a nonregulatory document (e.g., Intergovernmental Cooperation), approved by EPA on May 3, 1972 (37 FR 10842). b. EPA Analysis: Wyoming’s submittal meets the requirements of CAA Section 110(a)(2)(M) for the 1997 and 2006 PM2.5 NAAQS. ehiers on DSK2VPTVN1PROD with PROPOSALS-1 VI. What action is EPA proposing? In this action, EPA is proposing to approve the following infrastructure elements for the 1997 and 2006 PM2.5 NAAQS: (A), (B), (C) with respect to minor NSR and PSD requirements, (D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J), (K), (L), and (M). EPA is also proposing to approve revisions to Chapter 6, Section 4, as submitted on May 24, 2012, which incorporate the requirements of the 2010 PM2.5 Increment Rule; specifically, revisions to: Chapter 6, Section 4 (a) Definitions of ‘‘Baseline area’’, ‘‘Major source baseline date’’, and ‘‘Minor source baseline date’’; Chapter 6, Section 4 (b)(i)(A)(I) Table 1 and Table 1 (1), Chapter 6, Section 4 (b)(J)(v)(viii), and Section 14. EPA proposes to disapprove the section 110(a)(2)(E)(ii) infrastructure element, related to CAA 128, state boards, for the 1997 and 2006 PM2.5 NAAQS. Finally, in this action, EPA is taking no action on infrastructure elements (D)(i) for the 2006 PM2.5 NAAQS. VerDate Mar<15>2010 14:34 Sep 05, 2013 Jkt 229001 54835 VII. Statutory and Executive Order Reviews costs on Tribal governments or preempt Tribal law. 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 proposed action merely approves some state law as meeting federal requirements and disapproves other state law because it does not meet federal requirements; this proposed action does not impose additional requirements beyond those imposed by state law. For that reason, this proposed 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 List of Subjects in 40 CFR Part 52 PO 00000 Frm 00047 Fmt 4702 Sfmt 4702 Environmental protection, Air pollution control, Carbon monoxide, Intergovernmental relations, Greenhouse gases, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Dated August 28, 2013. Shaun L. McGrath, Regional Administrator, Region 8. [FR Doc. 2013–21613 Filed 9–5–13; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA–R04–OAR–2013–0173; FRL–9900–62– Region 4] Air Quality Implementation Plan; Alabama; Attainment Plan for the Troy Area 2008 Lead Nonattainment Area Environmental Protection Agency (EPA or Agency). ACTION: Proposed rule. AGENCY: EPA is proposing to approve a state implementation plan (SIP) revision, submitted by the State of Alabama through the Alabama Department of Environmental Management (ADEM), to EPA on November 9, 2012, for the purpose of providing for attainment of the 2008 Lead National Ambient Air Quality Standards (NAAQS) in the Troy 2008 Lead nonattainment area (hereafter referred to as the ‘‘Troy Area’’ or ‘‘Area’’). The Troy Area is comprised of a portion of Pike County in Alabama surrounding the Sanders Lead Company (hereafter referred to as ‘‘Sanders Lead’’). EPA is proposing to approve Alabama’s November 9, 2012 SIP submittal regarding the attainment plan based on Alabama’s attainment demonstration for the Troy Area. The attainment plan includes the base year emissions inventory requirements, an analysis of the reasonably available control technology (RACT) and reasonably available control measures (RACM) requirements, reasonable further progress (RFP) plan, modeling demonstration of lead attainment and contingency measures for the Troy Area. This action is being taken in accordance with Clean Air Act (CAA or Act) and EPA’s guidance related to lead attainment planning. SUMMARY: E:\FR\FM\06SEP1.SGM 06SEP1

Agencies

[Federal Register Volume 78, Number 173 (Friday, September 6, 2013)]
[Proposed Rules]
[Pages 54828-54835]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-21613]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2011-0728; FRL-9900-65-Region 8]


Promulgation of State Implementation Plan Revisions; 
Infrastructure Requirements for the 1997 and 2006 PM2.5 
National Ambient Air Quality Standards; Prevention of Significant 
Deterioration; Wyoming

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: EPA is proposing to partially approve and partially disapprove 
State Implementation Plan (SIP) submissions from the State of Wyoming 
to demonstrate that the SIP meets the infrastructure requirements of 
the Clean Air Act (CAA) for the National Ambient Air Quality Standards 
(NAAQS) promulgated for particulate matter less than or equal to 2.5 
micrometers ([mu]m) in diameter (PM2.5) on July 18, 1997 and 
on October 17, 2006. The CAA requires that each state, after a new or 
revised NAAQS is promulgated, review their SIP to ensure that they meet 
the requirements of the ``infrastructure elements'' necessary to 
implement the new or revised NAAQS. Wyoming provided infrastructure 
submissions for the 1997 and 2006 PM2.5 NAAQS on March 26, 
2008 and August 19, 2011, respectively. EPA does not propose to act on 
certain portions of the submissions for the 2006 PM2.5 NAAQS 
that are intended to meet requirements related to interstate transport 
of air pollution. EPA will act on the remainder of the submissions in a 
separate action.

DATES: Written comments must be received on or before September 27, 
2013.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2011-0728, by one of the following methods:
     https://www.regulations.gov. Follow the on-line 
instructions for submitting comments.
     Email: ayala.kathy@epa.gov
     Fax: (303) 312-6064 (please alert the individual listed in 
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
     Mail: Director, Air Program, Environmental Protection 
Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop Street, Denver, 
Colorado 80202-1129.
     Hand Delivery: Director, Air Program, Environmental 
Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop 
Street, Denver, Colorado 80202-1129. Such deliveries are only accepted 
Monday through Friday, 8:00 a.m. to 4:30 p.m., excluding federal 
holidays. Special arrangements should be made for deliveries of boxed 
information.
    Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-
2011-0728. 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 technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at https://www.epa.gov/epahome/dockets.htm. For additional 
instructions on submitting comments, go to section I, General 
Information, of the SUPPLEMENTARY INFORMATION section of this document.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in 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, 8:00 a.m. to 4:00 p.m., excluding 
federal holidays.

FOR FURTHER INFORMATION CONTACT: Kathy Ayala, Air Program, U.S. 
Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129. 303-312-6142, 
ayala.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 initials CBI mean or refer to confidential business 
information.
    (iii) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (iv) The initials FIP mean or refer to a Federal Implementation 
Plan.
    (v) The initials GHG mean or refer to greenhouse gases.
    (vi) The initials NAAQS mean or refer to national ambient air 
quality standards.
    (vii) The initials NOX mean or refer to nitrogen oxides.
    (viii) The initials NSR mean or refer to new source review.
    (ix) The initials PM mean or refer to particulate matter.
    (x) The initials PM2.5 mean or refer to particulate matter with 
an aerodynamic diameter of less than 2.5 micrometers (fine 
particulate matter).
    (xi) The initials ppm mean or refer to parts per million.
    (xii) The initials PSD mean or refer to Prevention of 
Significant Deterioration.
    (xiii) The initials SIP mean or refer to State Implementation 
Plan.
    (xiv) The initials SSM mean or refer to start-up, shutdown, or 
malfunction.
    (xv) The initials WAQSR mean or refer to the Wyoming Air Quality 
Standards and Regulation.

Table of Contents

I. General Information
II. Background
III. What is the scope of this rulemaking?
IV. What infrastructure elements are required under sections 
110(a)(1) and (2)?

[[Page 54829]]

V. How did Wyoming address the infrastructure elements of sections 
110(a)(1) and (2)?
VI. What action is EPA proposing?
VII. Statutory and Executive Order Reviews

I. General Information

What should I consider as I prepare my comments for EPA?

    1. Submitting Confidential Business Information (CBI). Do not 
submit CBI to EPA through https://www.regulations.gov or email. Clearly 
mark the part or all of the information that you claim to be CBI. For 
CBI information on a disk or CD ROM that you mail to EPA, mark the 
outside of the disk or CD ROM as CBI and then identify electronically 
within the disk or CD ROM the specific information that is claimed as 
CBI. In addition to one complete version of the comment that includes 
information claimed as CBI, a copy of the comment that does not contain 
the information claimed as CBI must be submitted for inclusion in the 
public docket. Information so marked will not be disclosed except in 
accordance with procedures set forth in 40 CFR part 2.
    2. Tips for preparing your comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register, date, and 
page number);
     Follow directions and organize your comments;
     Explain why you agree or disagree;
     Suggest alternatives and substitute language for your 
requested changes;
     Describe any assumptions and provide any technical 
information and/or data that you used;
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced;
     Provide specific examples to illustrate your concerns, and 
suggest alternatives;
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats; and,
     Make sure to submit your comments by the comment period 
deadline identified.

II. Background

    On July 18, 1997, EPA promulgated new NAAQS for PM2.5. 
Two new PM2.5 standards were added, set at 15 [mu]g/m\3\, 
based on the three-year average of annual arithmetic mean 
PM2.5 concentration from single or multiple community-
oriented monitors, and 65 [mu]g/m\3\, based on the three-year average 
of the 98th percentile of 24-hour PM2.5 concentrations at 
each population-oriented monitor within an area (62 FR 38652).
    On October 17, 2006, EPA promulgated a revised NAAQS for 
PM2.5, tightening the level of the 24-hour PM2.5 
standard to 35 [mu]g/m\3\ and retaining the level of the annual 
PM2.5 standard at 15 [mu]g/m\3\. EPA also retained the 24-
hour PM10 and revoked the annual PM10 standard 
(71 FR 61144). By statute, SIPs meeting the requirements of CAA 
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).
    CAA 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 the 
state develops and submits the 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 the state's existing SIP 
already contains. In the case of the 1997 and 2006 PM2.5 
NAAQS, states typically have met the basic program elements required in 
section 110(a)(2) through earlier SIP submissions in connection with 
previous NAAQS.

III. What is the scope of this rulemaking?

    This rulemaking will not cover four substantive issues that are not 
integral to acting on a state's infrastructure SIP submission: (1) 
Existing provisions related to excess emissions during periods of 
start-up, shutdown, or malfunction (SSM) at sources, that may be 
contrary to the CAA and EPA's policies addressing such excess emissions 
(``SSM''); (2) 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''); (3) existing provisions for minor source 
NSR programs that may be inconsistent with the requirements of the CAA 
and EPA's regulations that pertain to such programs (``minor source 
NSR''); and (4) existing provisions for prevention of significant 
deterioration (PSD) programs that may be inconsistent with current 
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186 
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (``NSR 
Reform''). Instead, EPA has indicated that it has other authority to 
address any such existing SIP defects in other rulemakings, as 
appropriate. A detailed rationale for why these four substantive issues 
are not part of the scope of infrastructure SIP rulemakings can be 
found in EPA's July 13, 2011 final rule entitled, ``Infrastructure SIP 
Requirements for the 1997 8-hour Ozone and PM2.5 National 
Ambient Air Quality Standards'' in the section entitled, ``What is the 
scope of this final rulemaking?'' (see 76 FR 41075 at 41076-41079).

IV. What infrastructure elements are required under sections 110(a)(1) 
and (2)?

    Section 110(a)(1) provides the procedural and timing requirements 
for SIP submissions after a new or revised NAAQS is promulgated. 
Section 110(a)(2) lists specific elements the SIP must contain or 
satisfy. These infrastructure elements include requirements such as 
modeling, monitoring, and emissions inventories, which are designed to 
assure attainment and maintenance of the NAAQS. The elements that are 
the subject of this action are listed below.
     110(a)(2)(A): Emission limits and other control measures.
     110(a)(2)(B): Ambient air quality monitoring/data system.
     110(a)(2)(C): Program for enforcement of control measures.
     110(a)(2)(D): Interstate transport.
     110(a)(2)(E): Adequate resources and authority, conflict 
of interest, and oversight of local governments and regional agencies.
     110(a)(2)(F): Stationary source monitoring and reporting.
     110(a)(2)(G): Emergency powers.
     110(a)(2)(H): Future SIP revisions.
     110(a)(2)(J): Consultation with government officials; 
public notification; and PSD and visibility protection.
     110(a)(2)(K): Air quality modeling/data.
     110(a)(2)(L): Permitting fees.
     110(a)(2)(M): Consultation/participation by affected local 
entities.
    A detailed discussion of each of these elements is contained in the 
next section.
    Element 110(a)(2)(D)(i)(I), Interstate transport of pollutants 
which contribute significantly to nonattainment in, or interfere with 
maintenance by, any other state will be acted upon in a

[[Page 54830]]

separate action. EPA will also act on the visibility element of section 
110(a)(2)(D)(i)(II) in a separate action.
    Two elements identified in section 110(a)(2) are not governed by 
the three year submission deadline of section 110(a)(1) and are 
therefore not addressed in this action. These elements relate to part D 
of Title I of the CAA, and submissions to satisfy them are not due 
within three years after promulgation of a new or revised NAAQS, but 
rather are due at the same time nonattainment area plan requirements 
are due under section 172. The two elements are: (1) Section 
110(a)(2)(C) to the extent it refers to permit programs (known as 
``nonattainment new source review (NSR)'') required under part D, and 
(2) section 110(a)(2)(I), pertaining to the nonattainment planning 
requirements of part D. As a result, this action does not address 
infrastructure elements related to the nonattainment NSR portion of 
section 110(a)(2)(C) or related to 110(a)(2)(I).

V. How did Wyoming address the infrastructure elements of sections 
110(a)(1) and (2)?

    1. Emission limits and other control measures: Section 110(a)(2)(A) 
requires SIPs to include enforceable emission limitations and other 
control measures, means, or techniques (including economic incentives 
such as fees, marketable permits, and auctions of emissions rights), as 
well as schedules and timetables for compliance as may be necessary or 
appropriate to meet the applicable requirements of this Act.
    a. Wyoming's response to this requirement: The State's March 26, 
2008 submission for the 1997 PM2.5 infrastructure 
requirements and August 19, 2011 submission for the 2006 
PM2.5 infrastructure requirements cite three non-regulatory 
documents (e.g., Control Strategy, Source Surveillance, and Compliance 
Schedule) which were approved by EPA on May 31, 1972 (37 FR 10842). The 
State's submissions also cite regulatory documents included in the 
Wyoming Air Quality Standards and Regulation (WAQSR) included in 
Chapters 1, 3, 4, 8, 10 and 13.
    b. EPA analysis: Wyoming's SIP meets the requirements of CAA 
section 110(a)(2)(A) for the 1997 and 2006 PM2.5 NAAQS, 
subject to the following clarifications. First, Wyoming has no areas 
designated as nonattainment for the 1997 and 2006 PM2.5 
NAAQS and, therefore, is not required to establish enforceable emission 
limitations or other emission reduction measures to attain the 1997 and 
2006 PM2.5 NAAQS. The SIP provisions cited by Wyoming 
include emissions standards for particulate matter (WAQSR Chapter 2, 
Section 2). Wyoming also regulates emissions of PM2.5 and 
its precursors through the State's approved PSD and minor NSR programs. 
This is sufficient to meet the requirements of 110(a)(2)(A) for the 
1997 and 2006 PM2.5 NAAQS.
    Second, in this action, EPA is not proposing to approve or 
disapprove any existing state rules with regard to director's 
discretion or variance provisions. A number of states have such 
provisions which are contrary to the CAA and existing EPA guidance (52 
FR 45109, November 24, 1987), and the Agency plans to take action in 
the future to address such state regulations. In the meantime, EPA 
encourages any state having a director's discretion or variance 
provision which is contrary to the CAA and EPA guidance to take steps 
to correct the deficiency as soon as possible.
    Finally, in this action, EPA is also not proposing to approve or 
disapprove any existing state provisions with regard to excess 
emissions during startup, shutdown, or malfunction (SSM) of operations 
at a facility. A number of states have SSM provisions which are 
contrary to the CAA and existing EPA guidance \1\ and the Agency is 
addressing such state regulations separately (78 FR 12460, February 22, 
2013).
---------------------------------------------------------------------------

    \1\ Steven Herman, Assistant Administrator for Enforcement and 
Compliance Assurance, and Robert Perciasepe, Assistant Administrator 
for Air and Radiation, Memorandum to EPA Air Division Directors, 
``State Implementation Plans (SIPs): Policy Regarding Emissions 
During Malfunctions, Startup, and Shutdown.'' (September 20, 1999).
---------------------------------------------------------------------------

    2. Ambient air quality monitoring/data system: Section 110(a)(2)(B) 
requires SIPs to provide for establishment and operation of appropriate 
devices, methods, systems, and procedures necessary to ``(i) monitor, 
compile, and analyze data on ambient air quality, and (ii) upon 
request, make such data available to the Administrator.''
    a. Wyoming's response to this requirement: The State's submissions 
for the 1997 and 2006 PM2.5 infrastructure requirements cite 
three non-regulatory documents (e.g., Air Quality Surveillance, Air 
Quality Surveillance Network, and Implementation Plan for Lead). The 
State's submissions also cite regulatory documents included in Chapters 
1 and 2 of the WAQSR.
    b. EPA analysis: Wyoming's air monitoring program and data systems 
meet the requirements of CAA section 110(a)(2)(B) for the 1997 and 2006 
PM2.5 NAAQS. The Wyoming Ambient Air Monitoring Annual 
Network Plan for 2011 was approved by EPA Region 8 on February 29, 
2012.
    3. Program for enforcement of control measures: Section 
110(a)(2)(C) requires SIPs to include a program to provide for the 
enforcement of the measures described in subparagraph (A), and 
regulation of the modification and construction of any stationary 
source within the areas covered by the plan as necessary to assure that 
NAAQS are achieved, including a permit program as required in parts C 
and D of the Act.
    a. Wyoming's response to this requirement: The State's submissions 
for the 1997 and 2006 PM2.5 infrastructure requirements cite 
four non-regulatory documents (e.g., Legal Authority, Source 
Surveillance, Review of New Sources and Modifications, and March 3, 
2008 memorandum from Cynthia Cody [EPA Region 8, Air Quality Planning 
Unit Chief]). The State's submissions also cite regulatory documents 
included in the WAQSR Chapter 6.
    b. EPA analysis: To generally meet the requirements of section 
110(a)(2)(C), the State is required to have SIP-approved PSD, 
nonattainment NSR, and minor NSR permitting programs adequate to 
implement the 1997 and 2006 PM2.5 NAAQS. As explained above, 
in this action EPA is not evaluating nonattainment related provisions, 
such as the nonattainment NSR program required by part D of the Act. 
EPA is evaluating the State's PSD program as required by part C of the 
Act, and the State's minor NSR program as required by 110(a)(2)(C).

PSD Requirements

    Wyoming has a SIP-approved PSD program that meets the general 
requirements of part C of the Act (44 FR 51977, September 6, 1979). To 
satisfy the particular requirements of section 110(a)(2)(C), states 
should have a PSD program that applies to all regulated NSR pollutants, 
including greenhouse gases (GHGs). See 40 CFR 51.166(b)(48) and 
(b)(49). The PSD program should reflect current requirements for these 
pollutants. In particular, for three pollutants--ozone, 
PM2.5 and GHGs--there are additional regulatory requirements 
(set out in portions of 40 CFR 51.166) that we consider in evaluating 
Wyoming's PSD program.
    On July 25, 2011 (76 FR 44265), we approved a revision to the 
Wyoming PSD program that addressed the PSD requirements of the Phase 2 
Ozone Implementation Rule promulgated on November 29, 2005 (70 FR 
71612). As a result, the approved Wyoming PSD program meets the current 
requirements for ozone.

[[Page 54831]]

    With respect to GHGs, on June 24, 2013 (78 FR 37752) EPA proposed 
to approve a submittal that revises Wyoming's PSD program to regulate 
GHGs and to adopt the thresholds set out in EPA's June 3, 2010 ``PSD 
and Title V Greenhouse Gas Tailoring Final Rule'' (75 FR 31514). In 
that proposal, EPA accordingly also proposed to rescind the Federal 
Implementation Plan (FIP) for GHG permitting in Wyoming that EPA had 
promulgated on December 30, 2010 (75 FR 82246). With EPA's proposed 
approval of the relevant portions of the revisions to Wyoming's PSD 
program and rescission of the FIP, Wyoming's PSD program will meet 
current requirements for GHGs.
    Finally, we evaluate the PSD program with respect to current 
requirements for PM2.5. In particular, on May 16, 2008, EPA 
promulgated the rule, ``Implementation of the New Source Review Program 
for Particulate Matter Less Than 2.5 Micrometers (PM2.5) and 
on October 20, 2010 EPA promulgated the rule, ``Prevention of 
Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 
Micrometers (PM2.5)--Increments, Significant Impact Levels 
(SILs) and Significant Monitoring Concentration (SMC)'' (75 FR 64864). 
EPA regards adoption of these PM2.5 rules as a necessary 
requirement when assessing a PSD program for the purposes of element 
(C).
    On January 4, 2013, the U.S. Court of Appeals, in Natural Resources 
Defense Council v. EPA, 706 F.3d 428 (D.C. Cir.), issued a judgment 
that remanded EPA's 2007 and 2008 rules implementing the 1997 
PM2.5 NAAQS. The Court ordered EPA to ``repromulgate these 
rules pursuant to Subpart 4 consistent with this opinion.'' Id. at 437. 
Subpart 4 of part D, Title 1 of the CAA establishes additional 
provisions for particulate matter nonattainment areas.
    The 2008 implementation rule addressed by the court decision, 
``Implementation of New Source Review (NSR) Program for Particulate 
Matter Less Than 2.5 Micrometers (PM2.5),'' (73 FR 28321, 
May 16, 2008), promulgated New Source Review (NSR) requirements for 
implementation of PM2.5 in nonattainment areas 
(nonattainment NSR) and attainment/unclassifiable areas (PSD). As the 
requirements of subpart 4 only pertain to nonattainment areas, EPA does 
not consider the portions of the 2008 Implementation rule that address 
requirements for PM2.5 attainment and unclassifiable areas 
to be affected by the Court's opinion. Moreover, EPA does not 
anticipate the need to revise any PSD requirements promulgated in the 
2008 Implementation rule in order to comply with the Court's decision. 
Accordingly, EPA's approval of Wyoming's infrastructure SIP as to 
elements (C) or (J) with respect to the PSD requirements promulgated by 
the 2008 Implementation rule does not conflict with the Court's 
opinion.
    The Court's decision with respect to the nonattainment NSR 
requirements promulgated by the 2008 Implementation rule also does not 
affect EPA's action on the present infrastructure action. EPA 
interprets the Act to exclude nonattainment area requirements, 
including requirements associated with a nonattainment NSR program, 
from infrastructure SIP submissions due 3 years after adoption or 
revision of a NAAQS. Instead, these elements are typically referred to 
as nonattainment SIP or attainment plan elements, which would be due by 
the dates statutorily prescribed under subpart 2 through 5 under part 
D, extending as far as 10 years following designations for some 
elements.
    The second PSD requirement for PM2.5 is contained in 
EPA's October 20, 2010 rule, ``Prevention of Significant Deterioration 
(PSD) for Particulate Matter Less Than 2.5 Micrometers 
(PM2.5)--Increments, Significant Impact Levels (SILs) and 
Significant Monitoring Concentration (SMC)'' (75 FR 64864). EPA regards 
adoption of the PM2.5 increments as a necessary requirement 
when assessing a PSD program for the purposes of element (C).
    On May 10, 2011, the State submitted revisions to Chapter 6, 
section 4 of the WAQSR that adopted all elements of the 2008 
Implementation Rule and on May 24, 2012, the State submitted revisions 
to Chapter 6, Section 4 of the WAQSR that adopted all elements of the 
2010 Increment Rule. These submitted revisions make Wyoming's PSD 
program up to date with respect to current requirements for 
PM2.5. The May 10, 2011 submittal, which incorporated the 
2008 Implementation Rule, was approved in a previous action (see 76 FR 
44265). We propose to approve the necessary portions of Wyoming's May 
24, 2012 submission to reflect the 2010 PM2.5 Increment 
Rule; specifically 40 CFR part 166, paragraphs (b)(14)(i), (ii), 
(b)(15)(i), and paragraph (c)(1). EPA is proposing to approve the 
following revisions to Chapter 6, Section 4: Chapter 6, Section 4(a) 
Definitions of ``Baseline area'', ``Major source baseline date'', and 
``Minor source baseline date''; Chapter 6, Section 4(b)(i)(A)(I) Table 
1 and Table 1 (1), Chapter 6, Section 4(b)(J)(v)(viii), and Section 14, 
as submitted on May 24, 2012. We are not proposing to act on any other 
portions of the May 24, 2012 submittal, including the adoption of 
significant impact levels (SILs) and significant monitoring 
concentrations (SMCs) for PM2.5.
    With these revisions, Wyoming's SIP-approved PSD program will meet 
current requirements for PM2.5. As a result, EPA is 
proposing to approve Wyoming's infrastructure SIP for the 1997 and 2006 
PM2.5 NAAQS with respect to the requirement in section 
110(a)(2)(C) to include a permit program in the SIP as required by part 
C of the Act.

Minor NSR

    With regard to minor NSR, in this action EPA is proposing to 
approve Wyoming's infrastructure SIP for the 1997 and 2006 
PM2.5 NAAQS with respect to the general requirement in 
section 110(a)(2)(C) to include a program in the SIP that regulates the 
modification and construction of any stationary source as necessary to 
assure that the NAAQS are achieved. Wyoming's approved minor NSR 
program is found in Chapter 6, section 2 of the WAQSR. EPA previously 
approved Wyoming's minor NSR program into the SIP (at that time as 
Chapter 1, section 21), and has subsequently approved revisions to the 
program, and at those times there were no objections to the provisions 
of this program. (See, for example, 47 FR 5892, February 9, 1982.) 
Since then, the State and EPA have relied on the State's existing minor 
NSR program to assure that new and modified sources not captured by the 
major NSR permitting programs do not interfere with attainment and 
maintenance of the NAAQS. EPA is not proposing to approve or disapprove 
the State's existing minor NSR program itself to the extent that it is 
inconsistent with EPA's regulations governing this program. A number of 
states may have minor NSR provisions that are contrary to the existing 
EPA regulations for this program. EPA intends to work with states to 
reconcile state minor NSR programs with EPA's regulatory provisions for 
the program. The statutory requirements of section 110(a)(2)(C) provide 
for considerable flexibility in designing minor NSR programs, and it 
may be time to revisit the regulatory requirements for this program to 
give the states an appropriate level of flexibility to design a program 
that meets their particular air quality concerns, while assuring 
reasonable consistency across the country in protecting the NAAQS with 
respect to new and modified minor sources.

[[Page 54832]]

    4. Interstate Transport: Section 110(a)(2)(D)(i) is subdivided into 
four ``prongs,'' two under 110(a)(2)(D)(i)(I) and two under 
110(a)(2)(D)(i)(II). The two prongs under 110(a)(2)(D)(i)(I) require 
SIPs to contain adequate provisions to prohibit emissions that (prong 
1) contribute significantly to nonattainment in any other state with 
respect to any such national primary or secondary NAAQS, and (prong 2) 
interfere with maintenance by any other state with respect to the same 
NAAQS. The two prongs under 110(a)(2)(D)(i)(II) require SIPs to contain 
adequate provisions to prohibit emissions that interfere with measure 
required to be included in the applicable implantation plan for any 
other state under part C (prong 3) to prevent significant deterioration 
of air quality or (prong 4) to protect visibility. As noted, we are not 
proposing to act on Wyoming's submission to meet the requirements of 
section 110(a)(2)(D)(i) for the 2006 PM2.5 NAAQS. On May 28, 
2008 (73 FR 26019), we approved Wyoming's submission to meet the 
requirements of section 110(a)(2)(D)(i) for the 1997 PM2.5 
NAAQS.
    5. Interstate and International transport provisions: Section 
110(a)(2)(D)(ii) requires that each SIP shall contain adequate 
provisions insuring compliance with applicable requirements of sections 
126 and 115 (relating to interstate and international pollution 
abatement).
    a. Wyoming's response to this requirement: The State's submissions 
for the 1997 and 2006 PM2.5 infrastructure requirements 
cited regulatory requirements included in the WAQSR Chapter 6, Section 
2, Permit requirements for construction modification and operation.
    b. EPA Analysis: Section 126(a) of the CAA requires notification to 
affected, nearby states of major proposed new (or modified) sources. 
Sections 126(b) and (c) pertain to petitions by affected states to the 
Administrator regarding sources violating the ``interstate transport'' 
provisions of section 110(a)(2)(D)(i). Section 115 of the CAA similarly 
pertains to international transport of air pollution.
    WAQSR Chapter 6, Section 2, specifically paragraph (m) meets the 
requirements of CAA section 126(a) for the 1997 and 2006 
PM2.5 NAAQS. Final approval of this language became 
effective January 30, 1995 (59 FR 60902, Nov. 29, 1994). Final approval 
of the renumbering of this language became effective August 27, 2004 
(See 69 FR 44965, July 28, 2004).
    Wyoming has no pending obligations under sections 126(c) or 115(b); 
therefore, its SIP currently meets the requirements of those sections. 
The SIP therefore meets the requirements of 110(a)(2)(D)(ii) for the 
1997 and 2006 PM2.5 NAAQS.
    6. Adequate resources and authority: Section 110(a)(2)(E)(i) 
requires states to provide necessary assurances that the state will 
have adequate personnel, funding, and authority under state law to 
carry out the SIP (and is not prohibited by any provision of federal or 
state law from carrying out the SIP or portion thereof). Section 
110(a)(2)(E)(iii) requires states to ``provide necessary assurances 
that, where the State has relied on a local or regional government, 
agency, or instrumentality for the implementation of any [SIP] 
provision, the State has responsibility for ensuring adequate 
implementation of such [SIP] provision.''
    a. Wyoming's response to this requirement: The State's submissions 
for the 1997 and 2006 PM2.5 infrastructure requirements cite 
two non-regulatory documents (e.g., Resources and Legal Authority), 
approved by EPA on May 31, 1972 (37 FR 10842). The State's submissions 
for 1997 and 2006 PM2.5 infrastructure requirements cite 
regulatory requirements included in the WAQSR Chapter 1, Section 2, 
Authority and the Wyoming Environmental Quality Act Articles 1 and 2 
(Chapter 11, Title 35 of the Wyoming Statutes).
    b. EPA Analysis: The provisions in Articles 1 and 2 of the Wyoming 
Environmental Quality Act (Chapter 11, Title 35 of the Wyoming 
Statutes) give the State adequate authority to carry out the SIP. The 
State receives sections 103 and 105 grant funds through its Performance 
Partnership Grant along with required state matching funds to provide 
funding necessary to carry out Wyoming's SIP requirements. The State 
does not rely upon any other local or regional government, agency or 
instrumentality for implementation of the SIP.
    7. State boards: Section 110(a)(2)(E)(ii) requires that the state 
comply with the requirements respecting state boards under section 128.
    a. Wyoming's response to this requirement: The State's submissions 
for the 1997 and 2006 PM2.5 infrastructure requirements cite 
two non-regulatory documents (e.g., Resources and Legal Authority), 
approved by EPA on May 31, 1972 (37 FR 10842). The State's submissions 
for 1997 and 2006 PM2.5 infrastructure requirements cite 
regulatory requirements included in the WAQSR Chapter 1, Section 2, 
Authority and the Wyoming Environmental Quality Act Articles 1 and 2 
(Chapter 11, Title 35 of the Wyoming Statutes).
    b. EPA Analysis: Section 110(a)(2)(E)(ii) of the CAA requires that 
the State comply with section 128 of the CAA. Section 128 was added in 
the 1977 amendments to the CAA as the result of a conference agreement. 
Titled ``State boards,'' it provides in relevant part:
    (a) Not later than the date one year after August 7, 1977, each 
applicable implementation plan shall contain requirements that--
    (1) Any board or body which approves permits or enforcement orders 
under [this Act] shall have at least a majority of members who 
represent the public interest and do not derive any significant portion 
of their income from persons subject to permits or enforcement orders 
under [this Act], and,
    (2) Any potential conflicts of interest by members of such board or 
body or the head of an executive agency with similar powers be 
adequately disclosed.
    In 1978, EPA issued a guidance memorandum recommending ways states 
could meet the requirements of section 128, including suggested 
interpretations of certain key terms in section 128.\2\ In this notice, 
we additionally discuss various relevant aspects of section 128. We 
first note that, in the conference report on the 1977 amendments to the 
CAA, the conference committee stated, ``It is the responsibility of 
each state to determine the specific requirements to meet the general 
requirements of [section 128].'' \3\ We find that this legislative 
history indicates that Congress intended states to have some latitude 
in the specifics of implementing section 128, so long as the 
implementation is consistent with the plain text of the section. We 
also note that Congress explicitly provided in section 128 that states 
could elect to adopt more stringent requirements, as long as the 
minimum requirements of section 128 are met. As a result, we note three 
considerations for implementing section 128.
---------------------------------------------------------------------------

    \2\ Memorandum from David O. Bickart, Deputy General Counsel, to 
Regional Air Directors, Guidance to States for Meeting Conflict of 
Interest Requirements of Section 128 (Mar. 2, 1978).
    \3\ H.R. Rep. 95-564 (1977), reprinted in 3 Legislative History 
of the Clean Air Act Amendments of 1977, 526-27 (1978).
---------------------------------------------------------------------------

    First, section 128 must be implemented through provisions that EPA 
approves into the SIP and are made federally enforceable. Section 128 
explicitly mandates that each SIP ``shall contain requirements'' that 
satisfy subsections 128(a)(1) and 128(a)(2). A

[[Page 54833]]

mere narrative description of state statutes or rules, or of a state's 
current or past practice in constituting a board or body and in 
disclosing potential conflicts of interest, is not a requirement 
contained in the SIP and does not satisfy the plain text of section 
128.
    Second, subsection 128(a)(1) applies only to states that have a 
board or body that is composed of multiple individuals and that, among 
its duties, approves permits or enforcement orders under the CAA. It 
does not apply in states that have no such multi-member board or body 
that performs these functions, and where instead a single head of an 
agency or other similar official approves permits or enforcement orders 
under the CAA. This flows from the text of section 128, for two 
reasons. First, as subsection 128(a)(1) refers to a majority of members 
in the plural, we think it reasonable to read subsection 128(a)(1) as 
not creating any requirements for an individual with sole authority for 
approving permits or enforcement orders under the CAA. Second, 
subsection 128(a)(2) explicitly applies to the head of an executive 
agency with ``similar powers'' to a board or body that approves permits 
or enforcement orders under the CAA, while subsection 128(a)(1) omits 
any reference to heads of executive agencies. We infer that subsection 
128(a)(1) should not apply to heads of executive agencies who approve 
permits or enforcement orders.
    Third, subsection 128(a)(2) applies to all states, regardless of 
whether the state has a multi-member board or body that approves 
permits or enforcement orders under the CAA. Although the title of 
section 128 is ``State boards,'' the language of subsection 128(a)(2) 
explicitly applies where the head of an executive agency, rather than a 
board or body, approves permits or enforcement orders. In instances 
where the head of an executive agency delegates his or her power to 
approve permits or enforcement orders, or where statutory authority to 
approve permits or enforcement orders is nominally vested in another 
state official, the requirement to adequately disclose potential 
conflicts of interest still applies. In other words, EPA thinks that 
SIPs for all states, regardless of whether a state board or body 
approves permits or enforcement orders under the CAA, must contain 
adequate provisions for disclosure of potential conflicts of interest 
in order to meet the requirements of subsection 128(a)(2).
    Wyoming's Environmental Quality Act establishes the Environmental 
Quality Council, a separate government body. See Wyoming Statutes 35-
11-111(a). The members of the Council are appointed by the Governor and 
serve at the Governor's pleasure. Among the duties of the Council are 
conducting hearings in any case contesting the administration or 
enforcement of any law, rule, regulation, standard or order issued or 
administered by DEQ or by any division of DEQ. Id. 35-11-111(a)(iii). 
In particular, a person subject to a DEQ order may request a hearing 
before the Council. Id. 35-11-702(c)(ii)-(iv). The Council must also 
conduct hearings in any case contesting the grant, denial, suspension, 
revocation or renewal of any permit authorized or required by the 
Environmental Quality Act. Id. 35-11-111(a)(iv). Under Article 2, Air 
Quality, and Article 8, Permits, of the Environmental Quality Act, any 
applicant for an air permit may petition the Council for a hearing to 
contest DEQ's decision on the permit. See id. 35-11-208, -802. Although 
Article 2 does not explicitly provide for it, third parties may contest 
DEQ's decision on an air permit under Wyoming Statutes section 35-11-
111(a)(iv), mentioned above. E.g,. In the Matter of: Medicine Bow Fuel 
& Power, LLC, No. 09-2801, at 2-3 (Wyo. Envtl. Quality Council, Feb. 5, 
2010).
    Given the duties and authorities of the Council, the Council 
appears to be a ``board or body which approves permits or enforcement 
orders'' under the CAA.\4\ However, Wyoming's approved SIP does not 
contain any enforceable provisions to satisfy the requirements of 
subsection 128(a)(1) as applied to the Council.\5\ In addition, 
Wyoming's SIP does not contain any enforceable provisions to satisfy 
the requirements of subsection 128(a)(2), which applies in all states. 
As a result, Wyoming's SIP does not satisfy the requirements of 
sections 128 and 110(a)(2)(E)(ii), and EPA proposes to disapprove 
Wyoming's submissions for element (E)(ii) for the 1997 and 2006 
PM2.5 NAAQS.
---------------------------------------------------------------------------

    \4\ See, for example, 78 FR 32613 (May 31, 2013), for a 
discussion of the phrase ``board or body which approves permits or 
enforcement orders.''
    \5\ Wyoming Statutes section 35-11-111(a) does require a member 
of the Council that receives more than ten percent of the member's 
income from any permit applicant to not act on a permit application 
from that applicant. However, this provision is not in Wyoming's SIP 
and does not address income from persons subject to enforcement 
orders or persons who already hold (are ``subject to'') a permit. 
Even if the provision were in Wyoming's SIP, EPA does not interpret 
the requirement in section 128(a)(1) regarding significant income to 
be satisfied solely by this sort of recusal provision. See 77 FR 
66398 (Nov. 5, 2012).
---------------------------------------------------------------------------

    8. Stationary source monitoring system: Section 110(a)(2)(F) 
requires:
    (i) the installation, maintenance, and replacement of equipment, 
and the implementation of other necessary steps, by owners or operators 
of stationary sources to monitor emissions from such sources,
    (ii) periodic reports on the nature and amounts of emissions and 
emissions-related data from such sources, and
    (iii) correlation of such reports by the state agency with any 
emission limitations or standards established pursuant to the Act, 
which reports shall be available at reasonable times for public 
inspection.
    a. Wyoming's response to this requirement: The State's submissions 
for the 1997 and 2006 PM2.5 infrastructure requirements cite 
regulatory requirements included in the 1979 WAQSR Chapter 6, Section 
2, Permit requirements for construction, modification, and operation, 
and Chapter 7, Sections 2, and Section 23, Continuous monitoring 
requirements for existing sources.
    b. EPA Analysis: In addition to the specific monitoring provisions 
cited by Wyoming, the SIP provides for monitoring, recordkeeping, and 
reporting requirements for sources subject to minor and major source 
permitting. (See WAQSR Chapter 6, section 2.) Wyoming's SIP therefore 
meets the requirements of section 110(a)(2)(F) for the 1997 and 2006 
PM2.5 NAAQS.
    9. Emergency powers: Section 110(a)(2)(G) requires states to 
provide for authority to address activities causing imminent and 
substantial endangerment to public health, including contingency plans 
to implement the emergency episode provisions in their SIPs.
    a. Wyoming's response to this requirement: The State's submissions 
for the 1997 and 2006 PM2.5 infrastructure requirements cite 
three non-regulatory documents (e.g., Emergency Episode Plan, Emergency 
Episode Contingency Plan, and a March 3, 2008 memorandum from Cynthia 
Cody, [EPA Region 8, Air Quality Planning Unit Chief]). The State's 
submissions for 1997 and 2006 PM2.5 infrastructure 
requirements cite regulatory requirements included in the WAQSR Chapter 
12, Section 2, Air pollution emergency episodes and the Wyoming 
Environmental Quality Act, Article 1, Power of the director to issue 
emergency orders, (Section 35-11-115 of the Wyoming Statues).
    b. EPA analysis: Section 35-11-115 of the Wyoming Statutes gives 
the Director of the Wyoming Department of Environmental Quality (DEQ) 
comparable emergency powers to those in section 303 of the Act. In our 
2009 guidance for infrastructure requirements for the 2006 
PM2.5 NAAQS, we

[[Page 54834]]

suggested that states that had monitored and recorded 24-hour 
PM2.5 levels greater than 140.4 [mu]g/m\3\, using the most 
recent three years of data, should develop emergency episode plans for 
the areas with the monitored values. We also suggested that, if these 
levels had not been exceeded, states could certify that they had 
adequate general emergency authority to address PM2.5 
episodes. In this rulemaking, we view these suggestions as still 
appropriate in assessing Wyoming's SIP for this element. Wyoming has 
not monitored any values above the 140.4 [micro]g/m\3\ level for 
PM2.5 for the past three years. Since this level was not 
exceeded in any area of the state and the State has demonstrated that 
it has appropriate general emergency powers to address PM2.5 
related episodes, the State is not required at this point to have a 
specific contingency plan for PM2.5. The SIP therefore meets 
the requirements of 110(a)(2)(G) for the 1997 and 2006 PM2.5 
NAAQS.
    10. Future SIP revisions: Section 110(a)(2)(H) requires that SIPs 
provide for revision of such plan:
    (i) from time to time as may be necessary to take account of 
revisions of such national primary or secondary ambient air quality 
standard or the availability of improved or more expeditious methods of 
attaining such standard, and
    (ii), except as provided in paragraph (3)(C), whenever the 
Administrator finds on the basis of information available to the 
Administrator that the SIP is substantially inadequate to attain the 
NAAQS which it implements or to otherwise comply with any additional 
requirements under this [Act].
    a. Wyoming's response to this requirement: The State's submissions 
for the 1997 and 2006 PM2.5 infrastructure requirements cite 
a non-regulatory document, Implementation Plan Reviews, approved by EPA 
on April 19, 1983 (48 FR 16682).
    b. EPA analysis: The general provisions in Article 1 of the Wyoming 
Environmental Quality Act (Article 1, Chapter 11, Title 35 of the 
Wyoming Statutes) and the particular provision in Article 2 at section 
35-11-202 of the Wyoming Statutes give the State sufficient authority 
to revise the SIP as required by section 110(a)(2)(H).
    11. Consultation with government officials, public notification, 
PSD and visibility protection: Section 110(a)(2)(J) requires that each 
SIP ``meet the applicable requirements of section 121 of this title 
(relating to consultation), section 127 of this title (relating to 
public notification), and part C of this subchapter (relating to PSD of 
air quality and visibility protection).''
    a. Wyoming's response to this requirement: The State's submissions 
for the 1997 and 2006 PM2.5 infrastructure requirements cite 
one non-regulatory document relative to consultation with government 
officials (e.g., Consultation, approved by EPA July 2, 1979 (44 FR 
38473)), one regulatory document relative to public notification (e.g., 
Public Notification of Air Quality, approved by EPA July 2, 1979 (44 FR 
38473)) and two non-regulatory documents relative to PSD and visibility 
protection (Wyoming State Implementation Plan for Class I Visibility 
Protection and a March 3, 2008 memorandum from Cynthia Cody, [EPA 
Region 8, Air Quality Planning Unit Chief]). The State's submissions 
for 1997 and 2006 PM2.5 infrastructure requirements cite 
regulatory requirements relative to PSD and visibility protection 
included in the WAQSR, Chapter 6, Prevention of significant 
deterioration.
    b. EPA Analysis: The State has demonstrated that it has the 
authority and rules in place to provide a process of consultation with 
general purpose local governments, designated organizations of elected 
officials of local governments and any Federal Land Manager having 
authority over federal land to which the SIP applies, consistent with 
the requirements of CAA section 121. Furthermore, EPA previously 
approved portions of the Wyoming SIP meeting the requirements of CAA 
section 127. (44 FR 38473, July 2, 1979.)
    Wyoming's SIP regulations for its PSD program were first federally-
approved and made part of the SIP on September 6, 1979 (4 FR 51977). 
EPA has further evaluated the State's SIP-approved PSD program in 
section V.3, element 110(a)(2)(C) of this proposed action. As explained 
in that section, we propose to approve Wyoming's infrastructure SIPs 
for the 1997 and 2006 PM2.5 NAAQS with respect to the 
requirement in element (C) to have a permit program as required by Part 
C of the Act, concurrently with our proposed approval of Wyoming's 
submittals to adopt the PM2.5 increments and to regulate 
GHGs under the PSD program. We correspondingly propose to approve the 
infrastructure SIPs for the 1997 and 2006 PM2.5 NAAQS with 
respect to the requirement in element (J) that the SIP meet the 
applicable requirements of Part C with respect to PSD.
    Finally, with regard to the applicable requirements for visibility 
protection, EPA recognizes that states are subject to visibility and 
regional haze program requirements under part C of the act. In the 
event of the establishment of a new NAAQS, however, the visibility and 
regional haze program requirements under part C do not change. Thus we 
find that there is no new visibility obligation ``triggered'' under 
section 110(a)(2)(J) when a new NAAQS becomes effective.
    12. Air quality and modeling/data: Section 110(a)(2)(K) requires 
that each SIP provide for: (i) the performance of such air quality 
modeling as the Administrator may prescribe for the purpose of 
predicting the effect on ambient air quality of any emissions of any 
air pollutant for which the Administrator has established a NAAQS, and 
(ii) the submission, upon request, of data related to such air quality 
modeling to the Administrator.
    a. Wyoming's response to this requirement: The State's submissions 
for the 1997 and 2006 PM2.5 infrastructure requirements cite 
regulatory requirements included in the WAQSR Chapter 6, Sections 2, 4, 
21 and 24.
    b. EPA Analysis: Wyoming's SIP meets the requirements of CAA 
section 110(a)(2)(K) for the 1997 and 2006 PM2.5 NAAQS. In 
particular, Wyoming's PSD program requires that estimates of ambient 
air concentrations be based on applicable air quality models specified 
in Appendix W of 40 CFR part 51, and that modification or substitution 
of a model specified in Appendix W must be approved by the 
Administrator. (See WAQSR Chapter 6, section 4(b)(iv).) As a result, 
the SIP provides for such air quality modeling as the Administrator has 
prescribed.
    13. Permitting fees: Section 110(a)(2)(L) requires SIPs to: require 
the owner or operator of each major stationary source to pay to the 
permitting authority, as a condition of any permit required under this 
act, a fee sufficient to cover (i) the reasonable costs of reviewing 
and acting upon any application for such a permit, and (ii) if the 
owner or operator receives a permit for such source, the reasonable 
costs of implementing and enforcing the terms and conditions of any 
such permit (not including any court costs or other costs associated 
with any enforcement action), until such fee requirement is superseded 
with respect to such sources by the Administrator's approval of a fee 
program under [title] V.
    a. Wyoming's response to this requirement: The State's submissions 
for the 1997 and 2006 PM2.5 infrastructure requirements cite 
regulatory requirements included in the WAQSR Chapter 6, Permit 
requirements

[[Page 54835]]

for construction, modification, and operation.
    b. EPA Analysis: Final approval of Wyoming's title V operating 
permit program became effective April 23, 1999 (64 FR 8523, Feb. 22, 
1990). Interim approval of the program became effective February 21, 
1995 (60 FR 4563, January 19, 1995). As discussed in a previous direct 
final rule (which received comments) for interim approval of the title 
V program (59 FR 48802, September 23, 1994), the State demonstrated 
that the fees collected were sufficient to administer the program. In 
addition, WAQSR chapter 6, section 2, paragraph (o) requires applicants 
for construction permits to pay the costs for DEQ to review and act on 
the permit applications. Wyoming's submission meets the requirements of 
section 110(a)(2)(L) for the 1997 and 2006 PM2.5 NAAQS.
    14. Consultation/participation by affected local entities: Section 
110(a)(2)(M) requires states to provide for consultation and 
participation in SIP development by local political subdivisions 
affected by the SIP.
    a. Wyoming's response to this requirement: The State's submissions 
for the 1997 and 2006 PM2.5 infrastructure requirements cite 
a non-regulatory document (e.g., Intergovernmental Cooperation), 
approved by EPA on May 3, 1972 (37 FR 10842).
    b. EPA Analysis: Wyoming's submittal meets the requirements of CAA 
Section 110(a)(2)(M) for the 1997 and 2006 PM2.5 NAAQS.

VI. What action is EPA proposing?

    In this action, EPA is proposing to approve the following 
infrastructure elements for the 1997 and 2006 PM2.5 NAAQS: 
(A), (B), (C) with respect to minor NSR and PSD requirements, (D)(ii), 
(E)(i), (E)(iii), (F), (G), (H), (J), (K), (L), and (M). EPA is also 
proposing to approve revisions to Chapter 6, Section 4, as submitted on 
May 24, 2012, which incorporate the requirements of the 2010 
PM2.5 Increment Rule; specifically, revisions to: Chapter 6, 
Section 4 (a) Definitions of ``Baseline area'', ``Major source baseline 
date'', and ``Minor source baseline date''; Chapter 6, Section 4 
(b)(i)(A)(I) Table 1 and Table 1 (1), Chapter 6, Section 4 
(b)(J)(v)(viii), and Section 14. EPA proposes to disapprove the section 
110(a)(2)(E)(ii) infrastructure element, related to CAA 128, state 
boards, for the 1997 and 2006 PM2.5 NAAQS. Finally, in this 
action, EPA is taking no action on infrastructure elements (D)(i) for 
the 2006 PM2.5 NAAQS.

VII. 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 
proposed action merely approves some state law as meeting federal 
requirements and disapproves other state law because it does not meet 
federal requirements; this proposed action does not impose additional 
requirements beyond those imposed by state law. For that reason, this 
proposed 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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Intergovernmental relations, Greenhouse gases, Lead, Nitrogen dioxide, 
Ozone, Particulate matter, Reporting and recordkeeping requirements, 
Sulfur oxides, Volatile organic compounds.

    Dated August 28, 2013.
Shaun L. McGrath,
Regional Administrator, Region 8.
[FR Doc. 2013-21613 Filed 9-5-13; 8:45 am]
BILLING CODE 6560-50-P