[Federal Register Volume 75, Number 73 (Friday, April 16, 2010)]
[Rules and Regulations]
[Pages 19886-19891]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-8405]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2009-0052; FRL-9136-6]
Approval and Promulgation of Air Quality Implementation Plans;
Wyoming; Revisions to the Wyoming Air Quality Standards and Regulations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is approving two State Implementation Plan revisions
submitted by the State of Wyoming on September 11, 2008. Wyoming has
revised its Air Quality Standards and Regulations, specifically Chapter
1, Section 5, Unavoidable equipment malfunction, and Chapter 1, Section
6, Credible evidence. Because these revisions conform to the Clean Air
Act and EPA regulations, EPA is approving the revisions with the
intention of making them Federally enforceable. EPA is taking this
action under section 110 of the Clean Air Act.
DATES: This rule is effective on June 15, 2010 without further notice,
unless EPA receives adverse comment by May 17, 2010. If adverse comment
is received, EPA will publish a timely withdrawal of the direct final
rule in the Federal Register informing the public that the rule will
not take effect.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2009-0052, by one of the following methods:
http://www.regulations.gov. Follow the on-line
instructions for submitting comments.
E-mail: [email protected].
Fax: (303) 312-6064 (please alert the individual listed in
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
Mail: Director, Air Program, Environmental Protection
Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver,
Colorado 80202-1129.
Hand Delivery: Director, Air Program, Environmental
Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street,
Denver, Colorado 80202-1129. Such deliveries are only accepted Monday
through Friday, 8 a.m. to 4:30 p.m., excluding Federal holidays.
Special arrangements should be made for deliveries of boxed
information.
Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-
2009-0052. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://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 http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://
[[Page 19887]]
www.regulations.gov, your e-mail address will be automatically captured
and included as part of the comment that is placed in the public docket
and made available on the Internet. If you submit an electronic
comment, EPA recommends that you include your name and other contact
information in the body of your comment and with any disk or CD-ROM you
submit. If EPA cannot read your comment due to technical difficulties
and cannot contact you for clarification, EPA may not be able to
consider your comment. Electronic files should avoid the use of special
characters, any form of encryption, and be free of any defects or
viruses. For additional instructions on submitting comments, go to
Section I. General Information of the SUPPLEMENTARY INFORMATION section
of this document.
Docket: All documents in the docket are listed in the http://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 http://www.regulations.gov or in hard copy at the Air Program,
Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street,
Denver, Colorado 80202-1129. EPA requests that if at all possible, you
contact the individual listed in the FOR FURTHER INFORMATION CONTACT
section to view the hard copy of the docket. You may view the hard copy
of the docket Monday through Friday, 8 a.m. to 4 p.m., excluding
Federal holidays.
FOR FURTHER INFORMATION CONTACT: Kathy Dolan, Air Program, U.S.
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595
Wynkoop Street, Denver, Colorado 80202-1129. 303-312-6142,
[email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. General Information
II. Background of Wyoming's Submissions
III. EPA's Review of Wyoming's Submissions
IV. Consideration of Section 110(l) of the CAA
V. Final Action
VI. Statutory and Executive Order Reviews
Definitions
For the purpose of this document, we are giving meaning to certain
words or initials as follows:
(i) The words or initials Act or CAA mean or refer to the Clean Air
Act, unless the context indicates otherwise.
(ii) The words EPA, we, us or our mean or refer to the United
States Environmental Protection Agency.
(iii) The initials SIP mean or refer to State Implementation Plan.
(iv) The words State or Wyoming mean the State of Wyoming, unless
the context indicates otherwise.
I. General Information
A. What Should I Consider as I Prepare My Comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
http://regulations.gov or e-mail. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as
CBI and then identify electronically within the disk or CD ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
2. Tips for Preparing Your Comments. When submitting comments,
remember to:
a. Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date and page number).
b. Follow directions--The agency may ask you to respond to specific
questions or organize comments by referencing a Code of Federal
Regulations (CFR) part or section number.
c. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
d. Describe any assumptions and provide any technical information
and/or data that you used.
e. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
f. Provide specific examples to illustrate your concerns, and
suggest alternatives.
g. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
h. Make sure to submit your comments by the comment period deadline
identified.
II. Background of Wyoming's Submissions
On September 11, 2008 the State of Wyoming submitted to EPA two
formal revisions to Wyoming's State Implementation Plan (SIP). These
revisions amend Wyoming's Air Quality Standards and Regulations. In
particular, Wyoming has revised Chapter 1, Common Provisions, Section
5, Unavoidable equipment malfunction, and has added a new section--
Section 6, Credible evidence--to Chapter 1.
A. Chapter 1, Common Provisions, Section 5, Unavoidable Equipment
Malfunction
Wyoming has revised its unavoidable equipment malfunction rule in
response to a series of EPA actions. On November 16, 2000, the
Administrator of the EPA issued an order granting in part a petition to
object to Wyoming's issuance of a Title V permit. In the Matter of:
Pacificorp's Jim Bridger and Naughton Electric Utility Steam Generating
Plants, Petition No. VIII-00-1 (Nov. 16, 2000). In the order, the
Administrator directed EPA's regional office in Denver (EPA Region 8)
to review Wyoming's Abnormal Conditions and Equipment Malfunction rule.
On November 1, 2002, in another Title V petition order, the
Administrator repeated this direction. In the Matter of: Title V Permit
for Buckingham Lumber Company, Buckingham Lumber Mill, Petition No.
VIII-2002-01 (Nov. 1, 2002). After completing its review, EPA Region 8
identified for Wyoming deficiencies in the rule. Letter from Richard R.
Long, Director, Air and Radiation Program, EPA Region 8, to Dan Olson,
Administrator, Wyoming's Department of Environmental Quality (Jan. 30,
2003). EPA Region 8 noted that the rule did not conform to Clean Air
Act requirements to protect National Ambient Air Quality Standards
(NAAQS) and Prevention of Significant Deterioration (PSD) increments.
Specifically, the rule allowed an exemption from enforcement for excess
emissions that occurred during malfunctions and certain other
conditions. EPA's interpretation was and continues to be that the Clean
Air Act requires that all periods of excess emissions be treated as
violations that cannot be exempted from enforcement. EPA therefore
requested that the rule be revised.
On November 16, 2005, the Environmental Quality Council of the
Wyoming Department of Environmental Quality approved a revision to the
Abnormal Conditions and Equipment Malfunction rule. The revision
removed
[[Page 19888]]
the existing automatic exemption and replaced it with enforcement
discretion provisions for excess emissions caused by malfunctions. The
revision became State-effective January 30, 2006. On September 11,
2008, the Governor of the State of Wyoming submitted the revision to
Region 8.
B. Chapter 1, Common Provisions, Section 6, Credible Evidence
Wyoming has added the credible evidence section to its rules in
response to an EPA SIP call. On February 24, 1997, EPA revised its rule
governing the use of credible evidence in enforcement actions. 62 FR
8314. In parallel, EPA directed its Regional Offices to conduct a SIP
call to States in order to ensure consistency with the revised credible
evidence rule. On October 20, 1999, EPA Region 8 issued a SIP call to
Wyoming. In a letter from EPA Regional Administrator William P.
Yellowtail notifying Wyoming of the SIP call, EPA stated that the
Wyoming SIP did not comply with sections 110(a)(2)(A) and (C) of the
CAA because the SIP could be interpreted to limit the types of credible
evidence or information that could be used for determining compliance
and establishing violations.
On October 23, 2000, the Environmental Quality Council of the
Wyoming Department of Environmental Quality approved revisions to the
Wyoming Air Quality Standards and Regulations, including the addition
of a provision (Chapter 1, Common Provisions, Section 6, Credible
evidence) allowing for the use of credible evidence in enforcement
actions. The added provision became State-effective December 8, 2000.
On September 11, 2008, the Governor of the State of Wyoming submitted
the revision to Region 8.
III. EPA's Review of Wyoming's Submissions
To determine if Wyoming's submissions should be approved by EPA,
EPA must evaluate the submissions for consistency with the CAA and EPA
regulations.
A. Revision to Chapter 1, Common Provisions, Section 5, Unavoidable
Equipment Malfunction
EPA's interpretations of the Act regarding excess emissions caused
by equipment malfunctions are contained in several documents. Most
relevant to this action are the following documents: A memorandum dated
September 28, 1982, from Kathleen M. Bennett, Assistant Administrator
for Air, Noise, and Radiation, entitled ``Policy on Excess Emissions
During Startup, Shutdown, Maintenance, and Malfunctions''; a
clarification to that memorandum from Kathleen M. Bennett issued on
February 15, 1983; and a memorandum entitled ``State Implementation
Plans: Policy Regarding Excess Emissions During Malfunctions, Startup,
and Shutdown,'' from Steven A. Herman, Assistant Administrator for
Enforcement and Compliance Assurance, and Robert Perciasepe, Assistant
Administrator for Air and Radiation, dated September 20, 1999.\1\
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\1\ The relevant interpretations were not affected by a
subsequent memorandum titled ``Reissuance of Clarification--State
Implementation Plans (SIPs): Policy Regarding Excess Emissions
During Malfunctions, Startup, and Shutdown,'' dated December 5,
2001, from Eric Schaeffer, Director, Office of Regulatory
Enforcement, Office of Enforcement and Compliance Assurance, and
John S. Seitz, Director, Office of Air Quality Planning and
Standards, Office of Air and Radiation.
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As explained in these memoranda, excess emissions are those air
emission levels that exceed any applicable emission limitation. Because
excess emissions might aggravate air quality so as to prevent
attainment and maintenance of the NAAQS or jeopardize the PSD
increments, EPA views all periods of excess emissions as violations of
the applicable emission limitation. Therefore, EPA will disapprove all
SIP revisions that automatically exempt from enforcement excess
emissions claimed to result from an equipment malfunction. In addition,
EPA will disapprove SIP revisions that give discretion to a state
director to determine whether an instance of excess emissions is a
violation of an emission limitation, because such a determination could
bar EPA and citizens from enforcing applicable requirements.
Instead, under EPA's interpretations, if a state chooses to address
violations for excess emissions that occur as a result of claimed
malfunctions, the state may take two approaches. The first, the
``enforcement discretion'' approach, allows a state director to refrain
from taking enforcement action for a violation if certain criteria are
met. The second, the ``affirmative defense'' approach, allows a source
to avoid penalties if it can prove that certain conditions are met.
Wyoming has selected the enforcement discretion approach. Under
this approach, the state director, in evaluating whether to exercise
discretion to decline enforcement for a violation caused by an
unavoidable malfunction, should consider whether the following criteria
have been satisfied:
1. To the maximum extent practicable the air pollution control
equipment, process equipment, or processes were maintained and operated
in a manner consistent with good practice for minimizing emissions;
2. Repairs were made in an expeditious fashion when the operator
knew or should have known that applicable emission limitations were
being exceeded. Off-shift labor and overtime must have been utilized,
to the extent practicable, to ensure that such repairs were made as
expeditiously as practicable;
3. The amount and duration of the excess emissions (including any
bypass) were minimized to the maximum extent practicable during periods
of such emissions;
4. All possible steps were taken to minimize the impact of the
excess emissions on ambient air quality; and
5. The excess emissions are not part of a recurring pattern
indicative of inadequate design, operation, or maintenance.
We have evaluated Wyoming's enforcement discretion provisions for
excess emissions caused by unavoidable equipment malfunctions. The
provisions are consistent with EPA's interpretations of the CAA as
described in the memoranda above. Specifically, Chapter 1, Common
Provisions, section 5(b) gives the Wyoming Air Quality Division
discretion when deciding whether to ``pursue enforcement after
considering whether excess emissions resulted from an unavoidable
equipment malfunction.'' The Division is to make this decision by
evaluating, on a case-by-case basis, information to be submitted by the
source after an incident. The information submitted by the source and
considered by the Division is defined in section 5(a)(i)(A) and
generally parallels the criteria outlined in the Kathleen Bennett
memoranda discussed above. The source has the burden to provide
sufficient information to demonstrate that the Division should use its
discretion.
EPA's memoranda also discuss a point not explicitly addressed in
Wyoming's new rule. There is no language in the new rule explicitly
stating that, even when the Division exercises its discretion and
declines enforcement, that exercise of discretion does not bar EPA or
any citizen from taking an enforcement action for the violation.
However, there is also no language in the new rule explicitly creating
such a bar. EPA therefore interprets the rule, consistent with EPA's
interpretations of the CAA, as not barring EPA and citizen enforcement
for violation of applicable requirements when the Division declines
[[Page 19889]]
enforcement. Under this interpretation, the new rule is consistent with
the CAA. EPA is therefore approving the revisions to Chapter 1, Common
Provisions, Section 5.
B. Addition to Chapter 1, Common Provisions, Section 6, Credible
Evidence
On February 24, 1997, EPA promulgated regulations under sections
113(a) and 113(e)(1) of the CAA clarifying the use of non-reference
test data--``credible evidence''--in enforcement actions and compliance
certifications. 62 FR 8314. In particular, the regulations prohibit
state implementation plans from precluding the use of credible
evidence. The regulations state: ``For the purpose of submitting
compliance certifications or establishing whether or not a person has
violated or is in violation of any standard in this part, the plan must
not preclude the use, including the exclusive use, of any credible
evidence or information, relevant to whether a source would have been
in compliance with applicable requirements if the appropriate
performance or compliance test or procedure had been performed.'' 40
CFR 51.212(c).
EPA has reviewed Wyoming's new credible evidence rule. The new rule
mirrors the language in 40 CFR 51.212(c) quoted above and provides for
the use of credible evidence in enforcement actions and compliance
certifications. Therefore, it is consistent with the CAA and EPA
regulations. As a result, EPA is approving the addition of the new
credible evidence rule, Chapter 1, Common Provisions, Section 6,
Credible evidence, into Wyoming's SIP.
IV. Consideration of Section 110(l) of the CAA
Under section 110(l) of the Clean Air Act, EPA cannot approve a SIP
revision if the revision would interfere with any applicable
requirements concerning attainment and reasonable further progress
toward attainment of the NAAQS or any other applicable requirement of
the Act. The Wyoming SIP revisions that EPA approves today do not
interfere with attainment of the NAAQS or any other applicable
requirement of the Act. The first revision removes a provision from the
Wyoming SIP that provided an outright exemption from emission limits
during malfunctions. In place of the exemption, the SIP now provides--
in accordance with the CAA--that the Wyoming Air Quality Division may
exercise its enforcement discretion after considering whether excess
emissions resulted from an unavoidable equipment malfunction. In the
absence of the previous automatic exemption, sources will now have a
greater incentive to comply with their emission limits, which will
protect the NAAQS and increments to a greater degree than under the
previous rule. The second revision, providing for use of credible
evidence, also protects the NAAQS and increments to a greater degree by
allowing for enhanced enforcement of emissions limits. Therefore,
section 110(l) requirements are satisfied.
V. Final Action
EPA is approving SIP revisions that Wyoming submitted on September
11, 2008. The Environmental Quality Council of the Wyoming Department
of Environmental Quality adopted revisions to Chapter 1, Common
Provisions, Section 5, Unavoidable equipment malfunction on November
16, 2005; these revisions became State-effective on January 30, 2006.
The Council added Chapter 1, Common Provisions, Section 6, Credible
evidence, to the Wyoming Air Quality Standards and Regulations on
October 23, 2000; this addition became State-effective on December 8,
2000.
EPA is publishing this rule without prior proposal because the
Agency views this as a noncontroversial amendment and anticipates no
adverse comments; we are merely approving changes to Wyoming's air
rules that conform to the CAA and EPA regulations. However, in the
``Proposed Rules'' section of today's Federal Register publication, EPA
is publishing a separate document that will serve as the proposal to
approve the SIP revision if adverse comments are filed. This rule will
be effective June 15, 2010 without further notice unless the Agency
receives adverse comments by May 17, 2010. If the EPA receives adverse
comments, EPA will publish a timely withdrawal in the Federal Register
informing the public that the rule will not take effect. EPA will
address all public comments in a subsequent final rule based on the
proposed rule. The EPA will not institute a second comment period on
this action. Any parties interested in commenting must do so at this
time. Please note that if EPA receives adverse comment on an amendment,
paragraph, or section of this rule and if that provision may be severed
from the remainder of the rule, EPA may adopt as final those provisions
of the rule that are not the subject of an adverse comment.
VI. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves State law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by State law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under State law and does
not impose any additional enforceable duty beyond that required by
State law, it does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4).
This rule also does not have tribal implications because it will
not have a substantial direct effect on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000). This action also does not have Federalism
implications because it does not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132 (64
FR 43255, August 10, 1999). This action merely approves a State rule
implementing a Federal standard and does not alter the relationship or
the distribution of power and responsibilities established in the Clean
Air Act. This rule also is not subject to Executive Order 13045,
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because it approves a State rule
implementing a Federal standard.
In reviewing SIP submissions, EPA's role is to approve State
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus
[[Page 19890]]
standards (VCS), EPA has no authority to disapprove a SIP submission
for failure to use VCS. It would thus be inconsistent with applicable
law for EPA, when it reviews a SIP submission, to use VCS in place of a
SIP submission that otherwise satisfies the provisions of the Clean Air
Act. Thus, the requirements of section 12(d) of the National Technology
Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.
This rule does not impose an information collection burden under the
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.).
The Congressional Review Act, 5 U.S.C. section 801 et seq., as
added by the Small Business Regulatory Enforcement Fairness Act of
1996, generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. EPA will submit a report containing this
rule and other required information to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States
prior to publication of the rule in the Federal Register. A major rule
cannot take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
section 804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by June 15, 2010. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. Parties with objections to this direct final
rule are encouraged to file a comment in response to the parallel
notice of proposed rulemaking for this action published in the proposed
rules section of today's Federal Register, rather than file an
immediate petition for judicial review of this direct final rule, so
that EPA can withdraw this direct final rule and address the comment in
the proposed rulemaking. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: April 1, 2010.
Carol L. Campbell,
Acting Deputy Regional Administrator, Region 8.
0
40 CFR part 52 is amended to read as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart ZZ--Wyoming
0
2. Section 52.2620 is amended by revising paragraph (b)(3); and the
table in paragraph (c)(1) is amended under Chapter 1 by revising the
entry for Section 5 and adding an entry for Section 6 to read as
follows:
Sec. 52.2620 Identification of plan.
* * * * *
(b) * * *
(3) Copies of the materials incorporated by reference may be
inspected at the Environmental Protection Agency, Region 8, 1595
Wynkoop Street, Denver, Colorado 80202-1129; the Environmental
Protection Agency, Air and Radiation Docket and Information Center, Air
Docket (6102), 1200 Pennsylvania Ave., NW., Washington, DC 20460; or
the National Archives and Records Administration (NARA). For
information on the availability of this material at NARA, call 202-741-
6030, or go to http://www.archives.gov/federal-register/cfr/ibr-locations.html.
(c) * * *
(1) * * *
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State adopted and EPA approval date
State citation Title/subject effective date and citation \1\ Explanation
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Chapter 1
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* * * * * * *
Section 5...................... Unavoidable 11/16/05, 1/30/06 4/16/10 [Insert
Equipment FR page number
Malfunction. where document
begins].
Section 6...................... Credible Evidence 10/23/00, 12/8/00 4/16/10 [Insert
FR page number
where document
begins].
* * * * * * *
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\1\ In order to determine the EPA effective date for a specific provision that is listed in this table, consult
the Federal Register cited in this column for that particular provision.
[[Page 19891]]
* * * * *
[FR Doc. 2010-8405 Filed 4-15-10; 8:45 am]
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