81 FR 78529 - Promulgation of State Implementation Plan Revisions; Infrastructure Requirements for the 2008 Lead, 2008 Ozone, 2010 NO2
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 81, Issue 216 (November 8, 2016)
Federal Register Volume 81, Issue 216 (November 8, 2016)
| Page Range | 78529-78539 | |
| FR Document | 2016-26860 |
[Federal Register Volume 81, Number 216 (Tuesday, November 8, 2016)] [Proposed Rules] [Pages 78529-78539] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-26860] ======================================================================= ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R08-OAR-2012-0933; FRL-9954-92-Region 8] Promulgation of State Implementation Plan Revisions; Infrastructure Requirements for the 2008 Lead, 2008 Ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 National Ambient Air Quality Standards; Wyoming AGENCY: Environmental Protection Agency. ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: The Environmental Protection Agency (EPA) is proposing to approve elements of State Implementation Plan (SIP) revisions from the State of Wyoming to demonstrate the State meets infrastructure requirements of the Clean Air Act (Act or CAA) for the National Ambient Air Quality Standards (NAAQS) promulgated for ozone on March 12, 2008, lead (Pb) on October 15, 2008, nitrogen dioxide (NO2 ) on January 22, 2010, sulfur dioxide (SO2 ) on June 2, 2010, and fine particulate matter (PM2.5 ) on December 14, 2012. The EPA is also proposing to approve SIP revisions the State submitted regarding state boards. Section 110(a) of the CAA requires that each state submit a SIP for the implementation, maintenance and enforcement of each NAAQS promulgated by the EPA. DATES: Written comments must be received on or before December 8, 2016. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08- OAR-2012-0933 at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets. FOR FURTHER INFORMATION CONTACT: Abby Fulton, Air Program, U.S. Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6563, [email protected]. SUPPLEMENTARY INFORMATION: I. General Information What should I consider as I prepare my comments for the EPA? 1. Submitting Confidential Business Information (CBI). Do not submit CBI to the EPA through http://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 the 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 volume, 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 March 12, 2008, the EPA promulgated a new NAAQS for ozone, revising the levels of the primary and secondary eight-hour ozone standards from 0.08 parts per million (ppm) to 0.075 ppm (73 FR 16436, March 27, 2008). Subsequently, on October 15, 2008, the EPA revised the level of the primary and secondary Pb NAAQS from 1.5 micrograms per cubic meter ([mu]g/m\3\) to 0.15 [mu]g/m\3\ (73 FR 66964, Nov. 12, 2008). On January 22, 2010, the EPA promulgated a new one-hour primary NAAQS for NO 2 at a level of 100 parts per billion (ppb) while retaining the annual standard of 53 ppb. The 2010 NO2 NAAQS is expressed as the three-year average of the 98th percentile of the annual distribution of daily maximum one-hour average concentrations. The secondary NO2 NAAQS remains unchanged at 53 ppb (75 FR 6474, Feb. 9, 2010). On June 2, 2010, the EPA promulgated a revised primary SO2 standard at 75 ppb, based on a three- year average of the annual 99th percentile of one-hour daily maximum concentrations (75 FR 35520, June 22, 2010). Finally, on December 14, 2012, the EPA promulgated a revised annual PM2.5 standard by lowering the level to 12.0 [mu]g/m\3\ and retaining the 24-hour PM2.5 standard at a level of 35 [mu]g/m\3\ (78 FR 3086, Jan. 15, 2013). Under sections 110(a)(1) and (2) of the CAA, states are required to submit infrastructure SIPs to ensure their SIPs provide for implementation, maintenance and enforcement of the NAAQS. These submissions must contain any revisions needed for meeting the applicable SIP requirements of section 110(a)(2), or certifications that their existing SIPs for PM2.5 , ozone, Pb, NO2, and SO2 already meet those requirements. The EPA highlighted this [[Page 78530]] statutory requirement in an October 2, 2007, guidance document entitled ``Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 National Ambient Air Quality Standards'' (2007 Memo). On September 25, 2009, the EPA issued an additional guidance document pertaining to the 2006 PM2.5 NAAQS entitled ``Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM2.5 ) National Ambient Air Quality Standards (NAAQS)'' (2009 Memo), followed by the October 14, 2011, ``Guidance on Infrastructure SIP Elements Required Under Sections 110(a)(1) and (2) for the 2008 Lead (Pb) National Ambient Air Quality Standards (NAAQS)'' (2011 Memo). Most recently, the EPA issued ``Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and (2)'' on September 13, 2013 (2013 Memo). III. What is the scope of this rulemaking? The EPA is acting upon the SIP submissions from Wyoming that address the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2008 ozone, 2008 Pb, 2010 NO2 , 2010 SO2 , and 2012 PM2.5 NAAQS. The requirement for states to make a SIP submission of this type arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions ``within three years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),'' and these SIP submissions are to provide for the ``implementation, maintenance, and enforcement'' of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon the EPA taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that ``[e]ach such plan'' submission must address. The EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as ``infrastructure SIP'' submissions. Although the term ``infrastructure SIP'' does not appear in the CAA, the EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to address the nonattainment planning requirements of part D of title I of the CAA; ``regional haze SIP'' submissions required by the EPA rule to address the visibility protection requirements of CAA section 169A; and nonattainment new source review (NSR) permit program submissions to address the permit requirements of CAA, title I, part D. Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submissions, and section 110(a)(2) provides more details concerning the required contents of these submissions. The list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive program provisions, and some of which pertain to requirements for both authority and substantive program provisions.\1\ The EPA therefore believes that while the timing requirement in section 110(a)(1) is unambiguous, some of the other statutory provisions are ambiguous. In particular, the EPA believes that the list of required elements for infrastructure SIP submissions provided in section 110(a)(2) contains ambiguities concerning what is required for inclusion in an infrastructure SIP submission. --------------------------------------------------------------------------- \1\ For example: Section 110(a)(2)(E)(i) provides that states must provide assurances that they have adequate legal authority under state and local law to carry out the SIP; section 110(a)(2)(C) provides that states must have a SIP-approved program to address certain sources as required by part C of title I of the CAA; and section 110(a)(2)(G) provides that states must have legal authority to address emergencies as well as contingency plans that are triggered in the event of such emergencies. --------------------------------------------------------------------------- Examples of some of these ambiguities and the context in which the EPA interprets the ambiguous portions of section 110(a)(1) and 110(a)(2) are discussed at length in our notice of proposed rulemaking: Promulgation of State Implementation Plan Revisions; Infrastructure Requirements for the 1997 and 2006 PM2.5 , 2008 Lead, 2008 Ozone, and 2010 NO2 National Ambient Air Quality Standards; South Dakota (79 FR 71040, Dec. 1, 2014) under ``III. What is the Scope of this Rulemaking?'' With respect to certain other issues, the EPA does not believe that an action on a state's infrastructure SIP submission is necessarily the appropriate type of action in which to address possible deficiencies in a state's existing SIP. These issues include: (i) Existing provisions related to excess emissions from sources during periods of startup, shutdown, or malfunction (SSM) that may be contrary to the CAA and the EPA's policies addressing such excess emissions; (ii) existing provisions related to ``director's variance'' or ``director's discretion'' that may be contrary to the CAA because they purport to allow revisions to SIP-approved emissions limits while limiting public process or not requiring further approval by the EPA; and (iii) existing provisions for Prevention of Significant Deterioration (PSD) programs that may be inconsistent with current requirements of the EPA's ``Final NSR Improvement Rule,'' 67 FR 80186, Dec. 31, 2002, as amended by 72 FR 32526, June 13, 2007 (``NSR Reform''). IV. What infrastructure elements are required under sections 110(a)(1) and (2)? CAA 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. 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 [[Page 78531]] 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 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). Furthermore, the EPA interprets the CAA section 110(a)(2)(J) provision on visibility as not being triggered by a new NAAQS because the visibility requirements in part C, title 1 of the CAA are not changed by a new NAAQS. V. How did Wyoming address the infrastructure elements of sections 110(a)(1) and (2)? The Wyoming Department of Environmental Quality (Department or WDEQ) submitted certification of Wyoming's infrastructure SIP for the 2008 Pb NAAQS on October 12, 2011; 2008 ozone NAAQS on February 6, 2014; 2010 NO 2 NAAQS on January 24, 2014; 2010 SO2 NAAQS on March 6, 2015; and 2012 PM2.5 on June 24, 2016. Infrastructure SIPs were taken out for public notice and Wyoming provided an opportunity for public hearing, as indicated in the cover letter of each certification (available within this docket). Wyoming's infrastructure certifications demonstrate how the State, where applicable, has plans in place that meet the requirements of section 110 for the 2008 Pb, 2008 ozone, 2010 NO2 , 2010 SO2 , and 2012 PM2.5 NAAQS. These plans reference the Wyoming Air Quality Standards and Regulations (WAQSR) and Wyoming Statutes. These submittals are available within the electronic docket for today's proposed action at www.regulations.gov. The WAQSR and Wyoming Statutes referenced in the submittals are publicly available at http://soswy.state.wy.us/Rules/default.aspx and http://legisweb.state.wy.us/LSOWEB/wyStatutes.aspx. Air pollution control regulations and statutes that have been previously approved by the EPA and incorporated into the Wyoming SIP can be found at 40 CFR 52.2620. VI. Analysis of the State Submittals 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. The State's submissions for the 2008 Pb, 2008 ozone 2010 NO2 , 2010 SO2 , and 2012 p.m.2.5 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 Chapters 1, 3, 4, 8, 10 and 13 of the WAQSR. The SIP approved non-regulatory documents cited in combination with multiple SIP-approved state air quality regulations within WAQSR and cited in Wyoming's certifications, provide enforceable emission limitations and other control measures, means of techniques, schedules for compliance, and other related matters necessary to meet the requirements of the CAA section 110(a)(2)(A) for the 2008 Pb, 2008 ozone, 2010 NO2 , 2010 SO2 and 2012 PM2.5 NAAQS, subject to the following clarifications. First, this infrastructure element does not require the submittal of regulations or emission limitations developed specifically for attaining the 2008 Pb, 2008 ozone 2010 NO2 , 2010 SO2 and 2012 PM2.5 NAAQS. Wyoming's certifications (contained within this docket) generally list provisions and enforceable control measures within its SIP which regulate pollutants through various programs. This includes its stationary source permit program which requires sources to demonstrate that emissions will not cause or contribute to a violation of any NAAQS. This suffices, in the case of Wyoming, to meet the requirements of section 110(a)(2)(A) for the 2008 Pb, 2008 ozone 2010 NO2 , 2010 SO2 and 2012 PM2.5 NAAQS. Second, as previously discussed, the 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, Nov. 24, 1987), and the agency plans to take action in the future to address such state regulations. In the meantime, the 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, the EPA is also not proposing to approve or disapprove any existing state provision with regard to excess emissions during SSM of operations at a facility. A number of states have SSM provisions which are contrary to the CAA and existing EPA guidance \2\ and the agency is addressing such state regulations separately (80 FR 33840, June 12, 2015). --------------------------------------------------------------------------- \2\ Steven Herman, Assistant Administrator for Enforcement and Compliance Assurance, and Robert Perciasepe, Assistant Administrator for Air and Radiation, Memorandum to the EPA Air Division Directors, ``State Implementation Plans (SIPs): Policy Regarding Emissions During Malfunctions, Startup, and Shutdown.'' (September 20, 1999). --------------------------------------------------------------------------- Therefore, the EPA is proposing to approve Wyoming's infrastructure SIP for the 2008 Pb, 2008 ozone 2010 NO2 , 2010 SO2 and 2012 PM2.5 NAAQS with respect to the general requirement in section 110(a)(2)(A) to include enforceable emission limitations and other control measures, means, or techniques to meet the applicable requirements of this element. 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.'' The State's submissions cite five non-regulatory documents (e.g., Air Quality Surveillance, Air Quality Surveillance Network, Implementation Plan for Lead, Wyoming Ambient Air Monitoring Network Plan, and the EPA Performance Partnership Agreement). The State's submissions also cite regulatory documents included in Chapters 1 and 2 of the WAQSR. Provisions contained in Chapter 6, Section 2(b)(i) of the WAQSR provide the legal authority and framework for the Air Quality Division (AQD) Administrator to require that permit applicants submit adequate monitoring data. Additionally, Chapter 6, Section 2(f)(iv) enables the AQD Administrator to impose reasonable conditions upon an approval to construct, modify, or operate, including ambient air quality monitoring. Additionally, the State of Wyoming submits data to the EPA's Air Quality System database in accordance with 40 CFR 58.16. Finally, Wyoming's 2015 Annual Monitoring Network Plan was approved through a letter dated September 24, 2015 (available within the docket). The State provides the EPA with prior notification when changes to its monitoring network or plan are being considered. We find that Wyoming's SIP and practices are adequate for the ambient air quality monitoring and data system requirements and therefore propose to approve the infrastructure SIP for the [[Page 78532]] 2008 Pb, 2008 ozone, 2010 NO2 , 2010 SO2 and 2012 PM2.5 NAAQS for this element. 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.'' 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 that are adequate to implement the 2008 Pb, 2010 NO2 , 2010 SO2 and 2012 PM2.5 NAAQS. The EPA already proposed approval of section 110(a)(2)(C) for the 2008 ozone NAAQS in a separate rulemaking at 81 FR 53365 (Aug. 12, 2016). As explained elsewhere in this action, the EPA is not evaluating nonattainment related provisions, such as the nonattainment NSR program required by part D of the Act. The 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 section 110(a)(2)(C). Enforcement of Control Measures Requirement Wyoming's Rule (02) II, Legal Authority, which the EPA approved into Wyoming's SIP,\3\ allows the State to enforce applicable laws, regulations, and standards; to seek injunctive relief; and to provide authority to prevent construction, modification, or operation of any stationary source at any location where emissions from such source will prevent the attainment or maintenance of a national standard or interfere with prevention of significant deterioration requirements. --------------------------------------------------------------------------- \3\ See 40 CFR 52.2620(e), Rule No. (02) II; 41 FR 36652 (Aug. 31, 1976) (approving Wyoming's revisions to its SIP). --------------------------------------------------------------------------- PSD Requirements With respect to Elements (C) and (J), the EPA interprets the CAA to require each state to make an infrastructure SIP submission for a new or revised NAAQS demonstrating that the air agency has a complete PSD permitting program meeting the current requirements for all regulated NSR pollutants. The requirements of Element D(i)(II) prong 3 may also be satisfied by demonstrating the air agency has a complete PSD permitting program that applies to all regulated NSR pollutants. Wyoming has shown that it currently has a PSD program in place that covers all regulated NSR pollutants, including greenhouse gases (GHGs). 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. With respect to GHGs, on June 23, 2014, the United States Supreme Court addressed the application of PSD permitting requirements to GHG emissions. Utility Air Regulatory Group v. Environmental Protection Agency, 134 S.Ct. 2427 (2014). The Supreme Court held that the EPA may not treat GHGs as an air pollutant for purposes of determining whether a source is a major source required to obtain a PSD permit. The Court also held that the EPA could continue to require that PSD permits, otherwise required based on emissions of pollutants other than GHGs, (anyway sources) contain limitations on GHG emissions based on the application of Best Available Control Technology (BACT). In accordance with the Supreme Court decision, on April 10, 2015, the U.S. Court of Appeals for the District of Columbia Circuit (the D.C. Circuit) in Coalition for Responsible Regulation v. EPA, 606 F. App'x. 6, at *7-8 (D.C. Cir. April 10, 2015), issued an amended judgment vacating the regulations that implemented Step 2 of the EPA's PSD and Title V Greenhouse Gas Tailoring Rule, but not the regulations that implement Step 1 of that rule. Step 1 of the Tailoring Rule covers sources that are required to obtain a PSD permit based on emissions of pollutants other than GHGs. Step 2 applied to sources that emitted only GHGs above the thresholds triggering the requirement to obtain a PSD permit. The amended judgment preserves, without the need for additional rulemaking by the EPA, the application of the BACT requirement to GHG emissions from Step 1 or ``anyway sources.'' \4\ With respect to Step 2 sources, the D.C. Circuit's amended judgment vacated the regulations at issue in the litigation, including 40 CFR 51.166(b)(48)(v), ``to the extent they require a stationary source to obtain a PSD permit if greenhouse gases are the only pollutant (i) that the source emits or has the potential to emit above the applicable major source thresholds, or (ii) for which there is a significant emission increase from a modification.'' --------------------------------------------------------------------------- \4\ See 77 FR 41066 (July 12, 2012) (rulemaking for definition of ``anyway'' sources). --------------------------------------------------------------------------- The EPA is planning to take additional steps to revise the federal PSD rules in light of the Supreme Court and subsequent D.C. Circuit opinion. Some states have begun to revise their existing SIP-approved PSD programs in light of these court decisions, and some states may prefer not to initiate this process until they have more information about the planned revisions to the EPA's PSD regulations. The EPA is not expecting states to have revised their PSD programs in anticipation of the EPA's planned actions to revise its PSD program rules in response to the court decisions. At present, the EPA has determined that Wyoming's SIP is sufficient to satisfy Elements (C), (D)(i)(II) prong 3 and (J) with respect to GHGs. This is because the PSD permitting program previously approved by the EPA into the SIP continues to require that PSD permits issued to ``anyway sources'' contain limitations on GHG emissions based on the application of BACT. The EPA most recently approved revisions to Wyoming's PSD program on December 6, 2013 (78 FR 73445). The approved Wyoming PSD permitting program still contains some provisions regarding Step 2 sources that are no longer necessary in light of the Supreme Court decision and D.C. Circuit's amended judgment. Nevertheless, the presence of these provisions in the previously-approved plan does not render the infrastructure SIP submission inadequate to satisfy Elements (C), (D)(i)(II) prong 3 and (J). The SIP contains the PSD requirements for applying the BACT requirement to greenhouse gas emissions from ``anyway sources'' that are necessary at this time. The application of those requirements is not impeded by the presence of other previously- approved provisions regarding the permitting of Step 2 sources. Accordingly, the Supreme Court decision and subsequent D.C. Circuit judgment do not prevent the EPA's approval of Wyoming's infrastructure SIP as to the requirements of Elements (C), (D)(i)(II) prong 3, and (J). Finally, we evaluate the PSD program with respect to current requirements for PM2.5 . In particular, on May 16, 2008, the EPA promulgated the rule, ``Implementation of the New Source Review Program for Particulate Matter Less Than 2.5 Micrometers (PM2.5 )'' (73 FR 28321) (2008 Implementation Rule). On October 20, 2010 the EPA promulgated the rule, ``Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 [[Page 78533]] Micrometers (PM2.5 )--Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC)'' (75 FR 64864). The 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. 2013), issued a judgment that remanded the EPA's 2007 and 2008 rules implementing the 1997 PM2.5 NAAQS. The court ordered the 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 Natural Resources Defense Council, ``Implementation of New Source Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers (PM2.5 ),'' (73 FR 28321, May 16, 2008), promulgated 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, the 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, the 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, the EPA's proposed approval of Wyoming's infrastructure SIP as to Elements (C), (D)(i)(II) prong 3, and (J) with respect to the PSD requirements promulgated by the 2008 Ozone 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 the EPA's action on the present infrastructure action. The EPA interprets the Act to exclude nonattainment area requirements, including requirements associated with a nonattainment NSR program, from infrastructure SIP submissions due three 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 the 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). The EPA regards adoption of the PM2.5 increments as a necessary requirement when assessing a PSD program for the purposes of Element (C). On July 25, 2011 (76 FR 44265), the EPA approved SIP revisions that revised Wyoming's PSD program which incorporated the 2008 Implementation Rule. The EPA approved revisions to reflect the 2010 PM2.5 Increment Rule on December 6, 2013 (78 FR 73445). Therefore, Wyoming's SIP approved PSD program meets current requirements for PM2.5 . Therefore, the EPA is proposing to approve Wyoming's infrastructure SIP for the 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS with respect to the requirement in section 110(a)(2)(C) to include a PSD permitting program in the SIP that covers the requirements for all regulated NSR pollutants as required by part C of the Act. Minor NSR The State has a SIP-approved minor NSR program, adopted under section 110(a)(2)(C) of the Act. The minor NSR program is found in Chapter 6, Section 2 of the WAQSR. The 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 the 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 program do not interfere with attainment and maintenance of the NAAQS. The EPA is proposing to approve Wyoming's infrastructure SIP for the 2008 Pb, 2010 NO2 , 2010 SO2 and 2012 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 enforcement of control measures in the SIP, and the modification and construction of any stationary source as necessary to assure that the NAAQS are achieved. 4. Interstate transport: The interstate transport provisions in CAA section 110(a)(2)(D)(i) require each state to submit a SIP that prohibits emissions that will have certain adverse air quality effects in other states. CAA section 110(a)(2)(D)(i) identifies four distinct prongs related to the impacts of air pollutants transported across state lines. The two prongs under 110(a)(2)(D)(i)(I) require SIPs to contain adequate provisions to prohibit any source or other type of emissions activity within the state from emitting air pollutants that will (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 will interfere with measures required to be included in the applicable implementation plan for any other state under part C (prong 3) to prevent significant deterioration of air quality or (prong 4) to protect visibility. In this action, the EPA is only addressing prong 3 of CAA section 110(a)(2)(D)(i)(II) for the 2008 Pb, 2010 SO2 , 2010 NO2 and 2012 PM2.5 NAAQS. All other transport prongs will be addressed in separate rulemaking actions. Evaluation of Interference With Measures To Prevent Significant Deterioration (PSD) With regard to the PSD portion of CAA section 110(a)(2)(D)(i)(II), this requirement may be met by a state's confirmation in an infrastructure SIP submission that new major sources and major modifications in the state are subject to a comprehensive EPA-approved PSD permitting program in the SIP that applies to all regulated NSR pollutants and that satisfies the requirements of the EPA's PSD implementation rules.\5\ As noted in the discussion for infrastructure element (C) earlier in this notice, the EPA is proposing to approve CAA section 110(a)(2) element (C) for Wyoming's infrastructure SIP for the 2008 Pb, 2010 NO2 , 2010 SO2 , and 2012 PM2.5 NAAQS with respect to PSD requirements. As discussed in detail in that section, Wyoming's SIP meets the current PSD-related requirements of section 110(a)(2)(C). For this reason, we are also proposing to approve Wyoming's infrastructure SIP as meeting the 110(a)(2)(D)(i)(II) prong 3 (PSD) requirements for the 2008 Pb, 2010 NO2 , 2010 SO2 and 2012 PM2.5 NAAQS. --------------------------------------------------------------------------- \5\ See 2013 Memo at 31. --------------------------------------------------------------------------- In-state sources not subject to PSD for a particular NAAQS because they are in [[Page 78534]] a nonattainment area for that standard may also have the potential to interfere with PSD in an attainment or unclassifiable area of another state.\6\ One way a state may satisfy prong 3 with respect to these sources is by citing an air agency's EPA-approved nonattainment NSR provisions addressing any pollutants for which the state has designated nonattainment areas. Wyoming has a SIP-approved nonattainment NSR program which ensures regulation of major sources and major modifications in nonattainment areas, and therefore satisfies prong 3 with regard to this requirement.\7\ --------------------------------------------------------------------------- \6\ Id. at 31. \7\ See WAQSR Chapter 6, Section 13. --------------------------------------------------------------------------- The EPA is proposing to approve the infrastructure SIP submission with regard to the requirements of prong 3 of section 110(a)(2)(D)(i)(II) for the 2008 Pb, 2010 NO2 , 2010 SO2 and 2012 PM2.5 NAAQS. 5. Interstate and International transport provisions: CAA section 110(a)(2)(D)(ii) requires SIPs to include provisions ensuring compliance with the applicable requirements of CAA sections 126 and 115 (relating to interstate and international pollution abatement, respectively). Specifically, section 126(a) of the CAA requires major new or modified sources to notify affected, nearby states of the source's potential impacts on air pollution. Sections 126(b) and (c) pertain to petitions affected states may seek from the Administrator of the EPA (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. As required by 40 CFR 51.166(q)(2)(iv), Wyoming's SIP-approved PSD program requires major new or modified sources to provide notice to states whose air quality may be impacted by the emissions of sources subject to PSD.\8\ This suffices to meet the notice requirement of section 126(a). --------------------------------------------------------------------------- \8\ See WAQSR Chapter 6, Section 2. --------------------------------------------------------------------------- Wyoming has no pending obligations under sections 126(c) or 115(b) of the CAA; therefore, its SIP currently meets the requirements of those sections. In summary, the SIP meets the requirements of CAA section 110(a)(2)(D)(ii), and the EPA is therefore proposing approval of this element for the 2008 Pb, 2008 ozone, 2010 NO2 , 2010 SO2 and 2012 PM2.5 NAAQS. 6. Adequate resources: 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)(ii) also requires each state to ``comply with the requirements respecting state boards'' under CAA section 128. 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. Sub-Elements (i) and (iii): Adequate Personnel, Funding, and Legal Authority Under State Law To Carry Out Its SIP, and Related Issues The provisions contained in Articles 1 and 2 of the Wyoming Environmental Quality Act (WEQA) (Chapter 11, Title 35 of the Wyoming Statutes) give the State adequate authority to carry out its SIP obligations with respect to the 2008 Pb, 2008 ozone, 2010 NO2 , 2010 SO2 and 2012 PM2.5 NAAQS. With respect to funding, 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. Wyoming's Performance Partnership Agreement (available within the docket) with the EPA documents resources needed to carry out agreed upon environmental program goals, measures, and commitments, including developing and implementing appropriate SIPs for all areas of the State. Annually, states update these grant commitments based on current SIP requirements, air quality planning, and applicable requirements related to the NAAQS. Wyoming satisfactorily met all commitments agreed to in the Air Planning Agreement for fiscal year 2015. Furthermore, WAQSR Chapter 6, Section 2(a)(v), Permit for construction, modification, and operation, requires the owner and operator of each new major source or major modification to pay a fee sufficient to cover the cost of reviewing and acting on permit applications. Collectively, these rules and commitments provide evidence that the Wyoming DEQ has adequate personnel (see non-regulatory document, Resources Document, cited in Wyoming's certifications), funding, and legal authority to carry out the State's implementation plan and related issues. With respect to section 110(a)(2)(E)(iii), the State does not rely upon any other local or regional government, agency or instrumentality for implementation of the SIP. Therefore, we propose to approve Wyoming's SIP as meeting the requirements of section 110(a)(2)(E)(i) and (E)(iii) for the 2008 Pb, 2008 ozone, 2010 NO2 , 2010 SO2 and 2012 PM2.5 NAAQS. b. Sub-Element (ii): State Boards Section 110(a)(2)(E)(ii) requires each state's SIP to contain provisions that comply with the requirements of section 128 of the CAA. Section 128 contains two explicit requirements: (i) That ``any board or body which approves permits or enforcement orders under [the CAA] 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 the CAA; and (ii) that ``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 our December 6, 2013 (78 FR 73445) action, we disapproved Wyoming's March 26, 2008 and August 19, 2011 infrastructure SIP submissions for the 1997 and 2006 PM2.5 NAAQS for CAA Section 110(a)(2)(E)(ii) because the Wyoming SIP did not contain provisions meeting requirements of CAA section 128(a)(1) or (2). Under section 110(c)(1)(B), this disapproval started a two-year clock for the EPA to promulgate a federal implementation plan (FIP) to address the deficiency. On May 31, 2016, the EPA received a submission from the State of Wyoming to address the requirements of section 128 by adopting revisions to Chapter 1, Section 16 of the Wyoming Department of Environmental Quality General Rules of Practice and Procedure. The Wyoming Environmental Quality Council approved these revisions on March 2, 2016. A copy of the submission, which includes as revisions, the addition of Section 16, Air Quality Division, State Implementation Plan, to Chapter 1, is available within this docket. These rules address board composition and conflict of interest requirements of section 128(a)(1) and (2). We propose to approve this new rule language as meeting the requirements of section 128 for the reasons explained in more detail below. Because this revision meets the requirements of section 128, we also propose to approve the State's infrastructure SIP submissions for element 110(a)(2)(E)(ii). The State submitted the provisions to meet section 128 separately, but section 128 is not [[Page 78535]] NAAQS-specific and once the State has met the requirements of section 128, that is sufficient for purposes of section 110(a)(2)(E)(ii) for all NAAQS. If we finalize this proposed approval for the 2008 Pb, 2008 ozone, 2010 NO2 , 2010 SO2 and 2012 PM2.5 NAAQS, this will also resolve the prior disapproval for element 110(a)(2)(E)(ii) for the 1997 and 2006 PM2.5 NAAQS and terminate the EPA's FIP obligation. We are proposing to approve the State's May 31, 2016 SIP submission as meeting the requirements of section 128 because we believe that it complies with the statutory requirements and is consistent with the EPA's guidance recommendations concerning section 128. In 1978, the 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.\9\ In this proposed notice, we discuss additional relevant aspects of section 128. We first note that, in the conference report of the 1977 amendments to the CAA, the conference committee stated, ``[i]t is the responsibility of each state to determine the specific requirements to meet the general requirements of [section 128].'' \10\ This legislative history indicates that Congress intended states to have some latitude in adopting SIP provisions with respect to section 128, so long as states meet the statutory requirements 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. --------------------------------------------------------------------------- \9\ 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). \10\ H.R. Rep. 95-564 (1977), reprinted in 3 Legislative History of the Clean Air Act Amendments of 1977, 526-27 (1978). --------------------------------------------------------------------------- In implementing section 128, the EPA has identified a number of key considerations relevant to evaluation of a SIP submission. The EPA has identified these considerations in the 1978 guidance and in subsequent rulemaking actions on SIP submissions relevant to section 128, whether as SIP revisions for this specific purpose or as an element of broader actions on infrastructure SIP submissions for one or more NAAQS. Each state must meet the requirements of section 128 through provisions that the EPA approves into the state's SIP and are thus made federally enforceable. Section 128 explicitly mandates that each SIP ``shall contain requirements'' that satisfy subsections 128(a)(1) and 128(a)(2). A 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. 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 of the board or body 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. States with no multi-member board or body that performs these functions, and instead have a single head of an agency or other similar official who approves CAA permits or enforcement orders, can satisfy the requirements of CAA 128(a)(1) with a negative declaration to that effect. 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, the EPA interprets section 128(a)(2) to apply to all states, regardless of whether a state board or body approves permits or enforcement orders under the CAA or whether a head of a state agency (or his/her delegates) performs these duties. Thus, all state SIPs must contain provisions that require adequate disclosure of potential conflicts of interest in order to meet the requirements of subsection 128(a)(2). The question of which entities or parties must be subject to such disclosure requirements must be evaluated by states and the EPA in light of the specific facts and circumstances of each state's regulatory structure. A state may satisfy the requirements of section 128 by submitting for adoption into the SIP a provision of state law that closely tracks or mirrors the language of the applicable provisions of section 128. A state may take this approach in two ways. First, the state may adopt the language of subsections 128(a)(1) and 128(a)(2) verbatim. Under this approach, the state will be able to meet the continuing requirements of section 128 without any additional, future SIP revisions, even if the state adds or removes authority, either at the state or local level, to individual or to boards or bodies to approve permits or enforcement orders under the CAA so long as the state continues to meet section 128 requirements. Second, the state may modify the language of subsections 128(a)(1) (if applicable) and 128(a)(2) to name the particular board, body, or individual official with approval authority. In this case, if the state subsequently modifies that authority, the state may have to submit a corresponding SIP revision to meet the continuing requirements of section 128. If the state chooses to not mirror the language of section 128, the state may adopt state statutes and/or regulations that functionally impose the same requirements as those of section 128, including definitions for key terms such as those recommended in the EPA's 1978 guidance. While either of these approaches would meet the minimum requirements of section 128, the statute also explicitly authorizes states to adopt more stringent requirements, for example, to impose additional requirements for recusal of board members from decisions, above and beyond the explicit board composition requirements. Although such recusal alone does not meet the requirements of section 128, states have the authority to require such recusal over and above the explicit requirements of section 128. These approaches give states flexibility in implementing section 128, while still ensuring consistency with the statute. [[Page 78536]] As previously explained, the EPA interprets subsection 128(a)(1) to apply only to states that have a board or body with multiple members that, among its duties, approves permits or enforcement orders under the Act. Wyoming's Environmental Quality Act establishes the Environmental Quality Council (EQC or Council), a separate agency of state government. See Wyoming Statutes 35-11-111(a). The members of the Council are appointed by the Governor. 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. at 35-11- 112(a)(iii). In particular, a person subject to a DEQ order may request a hearing before the Council. Id. at 35-11-701(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. at 35-11-112(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. at 35- 11-208; 35-11-802. 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.\11\ As the EPA has explained in other rulemaking actions, e.g., 78 FR 32613 (May 31, 2013), we interpret section 128(a)(1) to mean that boards that are the potential final decisionmaker via permit and enforcement order appeals ``approve'' those permits and enforcement orders. For example, by being the final decisionmaker with respect to questions such as whether a source receives a permit and the specific contents of such a permit, the Council is an entity that approves the permit within the meaning of 128(a)(1). Thus, the EQC is subject to the requirements of 128(a)(1). Wyoming's May 31, 2016 submission includes a provision in the Wyoming DEQ Chapter 1, General Rules of Practice and Procedure Section 16(a)(i), Air Quality Division, State Implementation Plan, which provides that the Council ``shall have at least a majority of members who represent the public interest and do not derive a significant portion of their income from persons subject to Air Quality permits or enforcement orders, as required by the Clean Air Act, Section 128(a)(1).'' We propose to approve this submission as satisfying the requirements of subsection 128(a)(1). --------------------------------------------------------------------------- \11\ See, e.g., 78 FR 32613 (May 31, 2013), for a discussion of the phrase ``board or body which approves permits or enforcement orders.'' --------------------------------------------------------------------------- The State's May 31, 2016 submittal includes requirements that Council members ``disclose any potential conflicts of interest in a public meeting of the Council as required by the Clean Air Act, Section 128(a)(2).'' Thus, Wyoming's submittal addresses disclosure of potential conflicts of interest from Council members that approve permits and enforcement orders under the Act. We therefore propose to approve this submission as satisfying the requirements of subsection 128(a)(2). In summary, the EPA proposes to approve Wyoming's May 31, 2016 submittal into the SIP to meet the requirements of section 128 of the Act. We also propose to approve Wyoming's infrastructure SIP with respect to the requirements of Section 110(a)(2)(E)(ii) for 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS. 7. 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.'' Wyoming's SIP approved monitoring provision cited by Wyoming in its certifications (WAQSR Chapter 6, Section 2, Permit requirements for construction, modification, and operation), pertains to its program of periodic emissions testing and plant inspections of stationary sources, and related testing requirements and protocols (including periodic reporting) to assure compliance with emissions limits. Additionally, WAQSR Chapter 7, Section 2 (Continuous monitoring requirements for existing sources), requires certain sources to install and maintain continuous emission monitors to assure compliance with emission limitations. Furthermore, Wyoming is required to submit emissions data to the EPA for purposes of the National Emissions Inventory (NEI). The NEI is the EPA's central repository for air emissions data. The EPA published the Air Emissions Reporting Rule (AERR) on December 5, 2008, which modified the requirements for collecting and reporting air emissions data (73 FR 76539). The AERR shortened the time states had to report emissions data from 17 to 12 months, giving states one calendar-year to submit emissions data. All states are required to submit a comprehensive emissions inventory every three years and report emissions for certain larger sources annually through the EPA's online Emissions Inventory System. States report emissions data for the six criteria pollutants and their associated precursors--nitrogen oxides, sulfur dioxide, ammonia, lead, carbon monoxide, particulate matter and volatile organic compounds. Many states also voluntarily report emissions of hazardous air pollutants. Wyoming made its latest update to the NEI in May 2016. The EPA compiles the emissions data, supplementing it where necessary, and releases it to the general public through the Web site https://www.epa.gov/air-emissions-inventories. Based on the analysis above, we propose to approve the Wyoming SIP as meeting the requirements of CAA section 110(a)(2)(F) for the 2008 Pb, 2008 ozone, 2010 NO2 , 2010 SO2 and 2012 PM2.5 NAAQS. 8. Emergency powers: Section 110(a)(2)(G) of the CAA requires infrastructure SIPs to ``provide for authority comparable to that in [CAA section 303] and adequate contingency plans to implement such authority[.]'' Under CAA section 303, the EPA Administrator has authority to bring suit to immediately restrain an air pollution source that presents an ``imminent and substantial endangerment to public health or welfare, or the environment.'' \12\ If such action may not practicably assure prompt protection, then the Administrator has authority to issue temporary administrative orders to protect the public health or welfare, or the environment, and such orders can be extended if the EPA subsequently files a civil suit. We propose to find that Wyoming's infrastructure SIP submittals provide for authority for the State comparable to that granted to the EPA Administrator to act in the face of an imminent and substantial endangerment to the public's health or welfare, or the environment. --------------------------------------------------------------------------- \12\ A discussion of the requirements for meeting CAA section 303 is provided in our notice of proposed rulemaking: Promulgation of State Implementation Plan Revisions; Infrastructure Requirements for the 1997 and 2006 PM2.5 , 2008 Lead, 2008 Ozone, and 2010 NO2 National Ambient Air Quality Standards; South Dakota (79 FR 71040, Dec. 1, 2014) under ``VI. Analysis of State Submittals, 8. Emergency powers.'' --------------------------------------------------------------------------- [[Page 78537]] Wyoming's SIP certifications with regard to the section 110(a)(2)(G) emergency order requirements cite EPA approved provisions (WAQSR Chapter 12, Section 2, Air pollution emergency episodes) which establish a basis for the Division to issue notices to the public relating to levels of air pollution from ``alerts,'' ``warnings,'' and ``emergencies'' to prevent ``a substantial threat to the health of persons'' if ``such [pollution] levels are sustained or exceeded'' in places that are attaining or have attained such pollution levels. WAQSR Chapter 12, Section 2(a) allows for the broad application of this provision to ``air pollutants'' beyond PM10 and SO2 . Sections 35-11-115(a) and (b) of the WEQA also provides the Director power to issue emergency orders ``to reduce or discontinue immediately the actions causing the condition of pollution'' and institute ``a civil action for immediate injunctive relief to halt any activity'' presenting an ``immediate and substantial danger to human or animal health or safety.'' Furthermore, as stated in Wyoming's 2012 PM2.5 certification, WEQA Section 35-11-901(a) authorizes the DEQ to seek a penalty or injunction from a court of competent jurisdiction for ``[a]ny person who violates, or any director, officer or agent of a corporate permittee who willfully and knowingly authorizes, orders or carries out the violation of any provision of this act, or any rule, regulation, standard or permit adopted hereunder or who violates any determination or order of the council pursuant to this act or any rule, regulation, standard permit, license or variance. . .'' While no single Wyoming statute mirrors the authorities of CAA section 303, we propose to find that the combination of WEQA and WAQSR provisions previously discussed provide for authority comparable to section 303. Section 303 authorizes the Administrator to immediately bring suit to restrain and issue emergency orders when necessary, and to take prompt administrative action against any person causing or contributing to air pollution that presents an imminent and substantial endangerment to public health or welfare, or the environment. Therefore, we propose that Wyoming's SIP submittals sufficiently meet the requirements of CAA 110(a)(2)(G) because they demonstrate that Wyoming has authority comparable to CAA section 303. States must also have adequate contingency plans adopted into their SIP to implement the air agency's emergency episode authority (as previously discussed). This can be done by submitting a plan that meets the applicable requirements of 40 CFR part 51, subpart H for the relevant NAAQS if the NAAQS is covered by those regulations. The EPA approved Wyoming's Emergency Episode Plan on February 9, 1982 at 47 FR 5892. We find that Wyoming's Emergency Episode Plan and air pollution emergency rules (WAQSR Chapter 12, Section 2, Air pollution emergency episodes) include PM10 \13\ and SO2 \14\; establish stages of episode criteria; provide for public announcement whenever any episode stage has been determined to exist; and specify emission control actions to be taken at each episode stage, consistent with the EPA emergency episode SIP requirements set forth at 40 CFR part 51 subpart H (prevention of air pollution emergency episode) for particulate matter, ozone, NO2 , and SO2 . --------------------------------------------------------------------------- \13\ The EPA has not yet promulgated regulations for ambient levels pertaining to priority levels for PM2.5 under the 2012 NAAQS (2013 Memo, p. 47). The EPA's September 25, 2009 Memo (available within the docket) suggested that states with areas that have had a PM2.5 exceedance greater than 140.4 mg/ m3 should develop and submit an emergency episode plan. If no such concentration was recorded in the last three years, the guidance suggested that the State can rely on its general emergency authorities. In this rulemaking, we continue to view these suggestions as appropriate in assessing Wyoming's SIP for this element. Wyoming has not had such a recorded PM2.5 level and thus an emergency episode plan for PM2.5 is not necessary. The SIP therefore meets the requirements of CAA section 110(a)(2)(G) for the 2012 PM2.5 NAAQS. \14\ As stated in Wyoming's 2012 PM2.5 infrastructure SIP certification, ``WAQSR Chapter 12, Emergency Controls, establishes a basis for the Division to issue air pollution alerts, warnings, or emergencies in order to prevent the occurrence of an air pollution emergency stemming from the effects of air pollutants on the health of persons. While guidance for the issuance of alerts, warnings, or emergencies is established specifically for PM10 and SO2 , the chapter does not limit its purview to these two pollutants--and could encompass other pollutants such as PM2.5 .'' Furthermore, Wyoming is not required to have a specific contingency plan for particulate matter, ozone, NO2 , or SO2 (see 40 CFR 52.2621). --------------------------------------------------------------------------- As noted in the 2011 Memo ``based on [the] EPA's experience to date with the Pb NAAQS and designating Pb nonattainment areas, [the] EPA expects that an emergency episode associated with Pb emissions would be unlikely and, if it were to occur, would be the result of a malfunction or other emergency situation at a relatively large source of Pb'' (page 14).\15\ Accordingly, the EPA believes the central components of a contingency plan would be to reduce emissions from the source at issue and communicate with the public as needed. We note that 40 CFR part 51, subpart H (51.150-51.152) and 40 CFR part 51, appendix L do not apply to Pb. --------------------------------------------------------------------------- \15\ October 14, 2011, ``Guidance on Infrastructure SIP Elements Required Under Sections 110(a)(1) and (2) for the 2008 Lead (Pb) National Ambient Air Quality Standards (NAAQS).'' --------------------------------------------------------------------------- Based on the above analysis, we propose approval of Wyoming's SIP as meeting the requirements of CAA section 110(a)(2)(G) for the 2008 Pb, 2008 ozone, and 2010 NO2 , 2010 SO2 and 2012 PM2.5 NAAQS. 9. Future SIP revisions: Section 110(a)(2)(H) requires that SIPs provide for revision of such plan: (i) ``[f]rom 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].'' The general provisions in Article 1 of the WEQA (Article 1, Chapter 11, Title 35 of the Wyoming Statutes) and the particular provision in Article 2, section 35-11-202 of the Wyoming Statutes, gives the Director sufficient authority to meet the requirements of CAA section 110(a)(2)(H). Therefore, we propose to approve Wyoming's SIP as meeting the requirements of CAA section 110(a)(2)(H). 10. 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).'' In its certifications, the State cites one non-regulatory document relative to consultation with government officials (e.g., Consultation, approved by EPA July 2, 1979 (44 FR 38473)) to meet the requirements of CAA section 121. 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 (see Wyoming's non-regulatory document, Intergovernmental Cooperation). Furthermore, the non- regulatory document, Public Notification of Air Quality, approved by EPA July 2, 1979 (44 FR 38473), cited by Wyoming, meets the general requirements of CAA section 127 to [[Page 78538]] notify the public when the NAAQS have been exceeded. Wyoming's SIP regulations for its PSD program were first federally- approved and made part of the SIP on September 6, 1979 (44 FR 51977). The EPA has further evaluated the State's SIP-approved PSD program in section VI.3 which discusses element 110(a)(2)(C) of this proposed action. As explained in that section, we propose to approve Wyoming's infrastructure SIPs for the 2008 Pb, 2010 NO2 , 2010 SO2 and 2012 PM2.5 NAAQS with respect to the requirement in element (C) to have a permit program as required by Part C of the Act. We similarly propose to approve the infrastructure SIPs for the 2008 Pb, 2010 NO2 , 2010 SO2 and 2012 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, the EPA recognizes 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 are no applicable visibility requirements under section 110(a)(2)(J) when a new NAAQS becomes effective. Based on the above analysis, we propose to approve the Wyoming SIP as meeting the requirements of CAA section 110(a)(2)(J) for the 2008 Pb, 2008 ozone, 2010 NO2 , 2010 SO2 and 2012 PM2.5 NAAQS. 11. Air quality and modeling/data: Section 110(a)(2)(K) requires each SIP to 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.'' 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 2(b)(iv)). Additionally, WAQSR Chapter 6, Section 2(f)(iv) authorizes the AQD Administrator to impose any reasonable conditions upon an approval to construct, modify or operate, including modeling ``. . . to determine the effect which emissions from a source may have, or is having, on air quality in any area which may be affected by emissions from such source.'' Furthermore, the WEQA 35- 11-1101(b) and Wyoming's PPA provide Wyoming with the authority to submit air quality modeling date to the Administrator.\16\ As a result, the SIP provides for such air quality modeling as the Administrator has prescribed. --------------------------------------------------------------------------- \16\ See Email from Michael Morris ``Question Regarding iSIP Element K- Submission of Air Quality Modeling Data'' September 15, 2016, available within docket. --------------------------------------------------------------------------- Therefore, we propose to approve the Wyoming SIP as meeting CAA section 110(a)(2)(K) for the 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS. 12. Permitting fees: Section 110(a)(2)(L) requires ``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.'' WAQSR Chapter 6, Section 2, paragraph (o) and WEQA sections 35-11- 211(a), Fees, require applicants of construction permits to pay the costs for DEQ to review and act on the permit applications. We also note that fees collected under Wyoming's approved title V permit program (64 FR 8523, Feb, 22, 1990) are sufficient to implement and enforce the program (see 59 FR 48802, Sept. 23, 1994). Therefore we propose to approve the submissions as submitted by the State for the 2008 Pb, 2008 ozone, 2010 NO2 , 2010 SO2 and 2012 PM2.5 NAAQS. 13. 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].'' The non-regulatory document, Intergovernmental Cooperation, cited in Wyoming's submittals meets the requirements of CAA section 110(a)(2)(M). We propose to approve Wyoming's SIP as meeting these requirements for the 2008 Pb, 2008 ozone, 2010 NO2 , 2010 SO2 and 2012 PM2.5 NAAQS. VII. What action is the EPA taking? In this action, the EPA is proposing to approve infrastructure elements for the 2008 Pb, 2008 ozone, 2010 NO2 , 2010 SO2 and 2012 PM2.5 NAAQS from the State's certifications as shown in Table 1. Elements we propose no action on are reflected in Table 2. Finally, the EPA is proposing to approve a new Wyoming DEQ General Rules of Practice and Procedures submitted on May 31, 2016 to satisfy requirements of element (E)(ii),which refers to requirements related to state boards. A comprehensive summary of infrastructure elements, and additions to the Wyoming DEQ Rules of Practice and Procedures organized by the EPA's proposed rule action are provided in Table 1 and Table 2. Table 1--List of Wyoming Infrastructure Elements and Revisions That the EPA Is Proposing To Approve ------------------------------------------------------------------------ Proposed for approval ------------------------------------------------------------------------- October 12, 2011 submittal--2008 Pb NAAQS: (A), (B), (C), (D)(i)(II) prong 3, (D)(ii), (E), (F), (G), (H), (J), (K), (L) and (M). March 6, 2015 submittal--2010 SO2 NAAQS: (A), (B), (C), (D)(i)(II) prong 3, (D)(ii), (E), (F), (G), (H), (J), (K), (L) and (M). February 6, 2014 submittal--2008 Ozone NAAQS: (A), (B), (D)(ii), (E), (F), (G), (H), (J), (K), (L) and (M). January 24, 2014 submittal--2010 NO2 NAAQS: (A), (B), (C), (D)(i)(II) prong 3, (D)(ii), (E), (F), (G), (H), (J), (K), (L) and (M). June 24, 2016 submittal--2012 PM2.5 NAAQS: (A), (B), (C), (D)(i)(II) prong 3, (D)(ii), (E), (F), (G), (H), (J), (K), (L) and (M). May 31, 2016 submittal--New Rules to Wyoming DEQ General Rules of Practice and Procedure, CAA Section 128: Chapter 1, General Provisions, Section 16, Air Program State Implementation Plan. ------------------------------------------------------------------------ [[Page 78539]] Table 2--List of Wyoming Infrastructure Elements and Revisions That the EPA Is Proposing To Take No Action On ------------------------------------------------------------------------ Proposed for no action (revision to be made in separate rulemaking action.) ------------------------------------------------------------------------- January 19, 2012 submittal--2008 Pb NAAQS: (D)(i)(I) prongs 1 and 2, (D)(i)(II) prong 4. February 6, 2014 submittal--2008 Ozone NAAQS: (D)(i) prongs 1-4 and (C) (proposed action on (D)(i)(II) prong 3 and (C) at 81 FR 53365, Aug. 12, 2016). January 31, 2013 submittal--2010 NO2 NAAQS: (D)(i)(I) prongs 1 and 2, (D)(i)(II) prong 4. June 2, 2013 submittal--2010 SO2 NAAQS: (D)(i)(I) prongs 1 and 2, (D)(i)(II) prong 4. December 22, 2015 submittal--2012 PM2.5 NAAQS: (D)(i)(I) prongs 1 and 2, (D)(i)(II) prong 4. ------------------------------------------------------------------------ VIII. Incorporation by Reference In this rulemaking, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the Wyoming Department of Environmental Quality General Rules of Practice and Procedure, Chapter 1, General Provisions, Section 16, Air Program State Implementation Plan Chapter 1, General Provisions, Section 16, Air Program State Implementation Plan pertaining to state board requirements VI.6. b. Sub-element (ii): State boards, of this preamble. The EPA has made, and will continue to make, these documents generally available through www.regulations.gov and/or at the EPA Region 8 office (please contact the person identified in the ``For Further Information Contact'' section of this preamble for more information). IX. Statutory and Executive Orders Review 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, the 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, Oct. 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, Aug. 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 the 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, Feb. 16, 1994). The SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Greenhouse gases, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Authority: 42 U.S.C. 7401 et seq. Dated: October 20, 2016. Shaun L. McGrath, Regional Administrator, Region 8. [FR Doc. 2016-26860 Filed 11-7-16; 8:45 am] BILLING CODE 6560-50-P
![Federal Register / Vol. 81, No. 216 / Tuesday, November 8, 2016 / Proposed Rules 78529
heading of this document. FDA will also instructions for submitting comments. • Follow directions and organize your
place on public display any Once submitted, comments cannot be comments;
amendments to, or comments on, the edited or removed from Regulations.gov. • Explain why you agree or disagree;
petitioner’s environmental assessment The EPA may publish any comment • Suggest alternatives and substitute
without further announcement in the received to its public docket. Do not language for your requested changes;
Federal Register. If, based on its review, submit electronically any information • Describe any assumptions and
the Agency finds that an environmental you consider to be Confidential provide any technical information and/
impact statement is not required and Business Information (CBI) or other or data that you used;
this petition results in a regulation, the information whose disclosure is • If you estimate potential costs or
notice of availability of the Agency’s restricted by statute. Multimedia burdens, explain how you arrived at
finding of no significant impact and the submissions (audio, video, etc.) must be your estimate in sufficient detail to
evidence supporting that finding will be accompanied by a written comment. allow for it to be reproduced;
published with the regulation in the The written comment is considered the • Provide specific examples to
Federal Register in accordance with 21 official comment and should include illustrate your concerns, and suggest
CFR 25.51(b). discussion of all points you wish to alternatives;
make. The EPA will generally not • Explain your views as clearly as
Dated: November 2, 2016. possible, avoiding the use of profanity
consider comments or comment
Tracey H. Forfa, or personal threats; and,
contents located outside of the primary
Deputy Director, Center for Veterinary submission (i.e., on the web, cloud, or • Make sure to submit your
Medicine.
other file sharing system). For comments by the comment period
[FR Doc. 2016–26922 Filed 11–7–16; 8:45 am] additional submission methods, the full deadline identified.
BILLING CODE 4164–01–P EPA public comment policy, II. Background
information about CBI or multimedia On March 12, 2008, the EPA
submissions, and general guidance on promulgated a new NAAQS for ozone,
ENVIRONMENTAL PROTECTION making effective comments, please visit
AGENCY revising the levels of the primary and
http://www2.epa.gov/dockets/ secondary eight-hour ozone standards
commenting-epa-dockets. from 0.08 parts per million (ppm) to
40 CFR Part 52
FOR FURTHER INFORMATION CONTACT: 0.075 ppm (73 FR 16436, March 27,
[EPA–R08–OAR–2012–0933; FRL–9954–92– Abby Fulton, Air Program, U.S. 2008). Subsequently, on October 15,
Region 8] Environmental Protection Agency 2008, the EPA revised the level of the
(EPA), Region 8, Mail Code 8P–AR, primary and secondary Pb NAAQS from
Promulgation of State Implementation 1595 Wynkoop Street, Denver, Colorado
Plan Revisions; Infrastructure 1.5 micrograms per cubic meter (mg/m3)
80202–1129, (303) 312–6563, to 0.15 mg/m3 (73 FR 66964, Nov. 12,
Requirements for the 2008 Lead, 2008 fulton.abby@epa.gov.
Ozone, 2010 NO2, 2010 SO2, and 2012 2008). On January 22, 2010, the EPA
SUPPLEMENTARY INFORMATION: promulgated a new one-hour primary
PM2.5 National Ambient Air Quality
Standards; Wyoming I. General Information NAAQS for NO2 at a level of 100 parts
per billion (ppb) while retaining the
AGENCY: Environmental Protection What should I consider as I prepare my annual standard of 53 ppb. The 2010
Agency. comments for the EPA? NO2 NAAQS is expressed as the three-
ACTION: Proposed rule. 1. Submitting Confidential Business year average of the 98th percentile of the
Information (CBI). Do not submit CBI to annual distribution of daily maximum
SUMMARY: The Environmental Protection the EPA through http:// one-hour average concentrations. The
Agency (EPA) is proposing to approve www.regulations.gov or email. Clearly secondary NO2 NAAQS remains
elements of State Implementation Plan mark the part or all of the information unchanged at 53 ppb (75 FR 6474, Feb.
(SIP) revisions from the State of that you claim to be CBI. For CBI 9, 2010). On June 2, 2010, the EPA
Wyoming to demonstrate the State information on a disk or CD–ROM that promulgated a revised primary SO2
meets infrastructure requirements of the you mail to the EPA, mark the outside standard at 75 ppb, based on a three-
Clean Air Act (Act or CAA) for the of the disk or CD–ROM as CBI and then year average of the annual 99th
National Ambient Air Quality Standards identify electronically within the disk or percentile of one-hour daily maximum
(NAAQS) promulgated for ozone on CD–ROM the specific information that concentrations (75 FR 35520, June 22,
March 12, 2008, lead (Pb) on October is claimed as CBI. In addition to one 2010). Finally, on December 14, 2012,
15, 2008, nitrogen dioxide (NO2) on complete version of the comment that the EPA promulgated a revised annual
January 22, 2010, sulfur dioxide (SO2) includes information claimed as CBI, a PM2.5 standard by lowering the level to
on June 2, 2010, and fine particulate copy of the comment that does not 12.0 mg/m3 and retaining the 24-hour
matter (PM2.5) on December 14, 2012. contain the information claimed as CBI PM2.5 standard at a level of 35 mg/m3 (78
The EPA is also proposing to approve must be submitted for inclusion in the FR 3086, Jan. 15, 2013).
SIP revisions the State submitted public docket. Information so marked Under sections 110(a)(1) and (2) of the
regarding state boards. Section 110(a) of will not be disclosed except in CAA, states are required to submit
the CAA requires that each state submit accordance with procedures set forth in infrastructure SIPs to ensure their SIPs
a SIP for the implementation, 40 CFR part 2. provide for implementation,
maintenance and enforcement of each 2. Tips for preparing your comments. maintenance and enforcement of the
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NAAQS promulgated by the EPA. When submitting comments, remember NAAQS. These submissions must
DATES: Written comments must be to: contain any revisions needed for
received on or before December 8, 2016. • Identify the rulemaking by docket meeting the applicable SIP requirements
ADDRESSES: Submit your comments, number and other identifying of section 110(a)(2), or certifications that
identified by Docket ID No. EPA–R08– information (subject heading, Federal their existing SIPs for PM2.5, ozone, Pb,
OAR–2012–0933 at http:// Register volume, date, and page NO2, and SO2 already meet those
www.regulations.gov. Follow the online number); requirements. The EPA highlighted this
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statutory requirement in an October 2, requirements of part D of title I of the excess emissions; (ii) existing provisions
2007, guidance document entitled CAA; ‘‘regional haze SIP’’ submissions related to ‘‘director’s variance’’ or
‘‘Guidance on SIP Elements Required required by the EPA rule to address the ‘‘director’s discretion’’ that may be
Under Sections 110(a)(1) and (2) for the visibility protection requirements of contrary to the CAA because they
1997 8-hour Ozone and PM2.5 National CAA section 169A; and nonattainment purport to allow revisions to SIP-
Ambient Air Quality Standards’’ (2007 new source review (NSR) permit approved emissions limits while
Memo). On September 25, 2009, the program submissions to address the limiting public process or not requiring
EPA issued an additional guidance permit requirements of CAA, title I, part further approval by the EPA; and (iii)
document pertaining to the 2006 PM2.5 D. existing provisions for Prevention of
NAAQS entitled ‘‘Guidance on SIP Section 110(a)(1) addresses the timing Significant Deterioration (PSD)
Elements Required Under Sections and general requirements for programs that may be inconsistent with
110(a)(1) and (2) for the 2006 24-Hour infrastructure SIP submissions, and current requirements of the EPA’s
Fine Particle (PM2.5) National Ambient section 110(a)(2) provides more details ‘‘Final NSR Improvement Rule,’’ 67 FR
Air Quality Standards (NAAQS)’’ (2009 concerning the required contents of 80186, Dec. 31, 2002, as amended by 72
Memo), followed by the October 14, these submissions. The list of required FR 32526, June 13, 2007 (‘‘NSR
2011, ‘‘Guidance on Infrastructure SIP elements provided in section 110(a)(2) Reform’’).
Elements Required Under Sections contains a wide variety of disparate
110(a)(1) and (2) for the 2008 Lead (Pb) provisions, some of which pertain to IV. What infrastructure elements are
National Ambient Air Quality Standards required legal authority, some of which required under sections 110(a)(1) and
(NAAQS)’’ (2011 Memo). Most recently, pertain to required substantive program (2)?
the EPA issued ‘‘Guidance on provisions, and some of which pertain CAA section 110(a)(1) provides the
Infrastructure State Implementation to requirements for both authority and procedural and timing requirements for
Plan (SIP) Elements under Clean Air Act substantive program provisions.1 The SIP submissions after a new or revised
Sections 110(a)(1) and (2)’’ on EPA therefore believes that while the NAAQS is promulgated. Section
September 13, 2013 (2013 Memo). timing requirement in section 110(a)(1) 110(a)(2) lists specific elements the SIP
is unambiguous, some of the other must contain or satisfy. These
III. What is the scope of this statutory provisions are ambiguous. In
rulemaking? infrastructure elements include
particular, the EPA believes that the list requirements such as modeling,
The EPA is acting upon the SIP of required elements for infrastructure monitoring and emissions inventories,
submissions from Wyoming that address SIP submissions provided in section which are designed to assure attainment
the infrastructure requirements of CAA 110(a)(2) contains ambiguities and maintenance of the NAAQS. The
sections 110(a)(1) and 110(a)(2) for the concerning what is required for elements that are the subject of this
2008 ozone, 2008 Pb, 2010 NO2, 2010 inclusion in an infrastructure SIP action are listed below.
SO2, and 2012 PM2.5 NAAQS. The submission. • 110(a)(2)(A): Emission limits and
requirement for states to make a SIP Examples of some of these other control measures.
submission of this type arises out of ambiguities and the context in which • 110(a)(2)(B): Ambient air quality
CAA section 110(a)(1). Pursuant to the EPA interprets the ambiguous monitoring/data system.
section 110(a)(1), states must make SIP portions of section 110(a)(1) and • 110(a)(2)(C): Program for
submissions ‘‘within three years (or 110(a)(2) are discussed at length in our enforcement of control measures.
such shorter period as the Administrator notice of proposed rulemaking: • 110(a)(2)(D): Interstate transport.
may prescribe) after the promulgation of Promulgation of State Implementation • 110(a)(2)(E): Adequate resources
a national primary ambient air quality Plan Revisions; Infrastructure and authority, conflict of interest, and
standard (or any revision thereof),’’ and Requirements for the 1997 and 2006 oversight of local governments and
these SIP submissions are to provide for PM2.5, 2008 Lead, 2008 Ozone, and 2010 regional agencies.
the ‘‘implementation, maintenance, and NO2 National Ambient Air Quality • 110(a)(2)(F): Stationary source
enforcement’’ of such NAAQS. The Standards; South Dakota (79 FR 71040, monitoring and reporting.
statute directly imposes on states the Dec. 1, 2014) under ‘‘III. What is the • 110(a)(2)(G): Emergency powers.
duty to make these SIP submissions, Scope of this Rulemaking?’’ • 110(a)(2)(H): Future SIP revisions.
and the requirement to make the With respect to certain other issues, • 110(a)(2)(J): Consultation with
submissions is not conditioned upon the EPA does not believe that an action government officials; public
the EPA taking any action other than on a state’s infrastructure SIP notification; and PSD and visibility
promulgating a new or revised NAAQS. submission is necessarily the protection.
Section 110(a)(2) includes a list of appropriate type of action in which to • 110(a)(2)(K): Air quality modeling/
specific elements that ‘‘[e]ach such address possible deficiencies in a state’s data.
plan’’ submission must address. existing SIP. These issues include: (i) • 110(a)(2)(L): Permitting fees.
The EPA has historically referred to Existing provisions related to excess • 110(a)(2)(M): Consultation/
these SIP submissions made for the emissions from sources during periods participation by affected local entities.
purpose of satisfying the requirements of startup, shutdown, or malfunction A detailed discussion of each of these
of CAA sections 110(a)(1) and 110(a)(2) (SSM) that may be contrary to the CAA elements is contained in the next
as ‘‘infrastructure SIP’’ submissions. and the EPA’s policies addressing such section.
Although the term ‘‘infrastructure SIP’’ Two elements identified in section
does not appear in the CAA, the EPA 1 For example: Section 110(a)(2)(E)(i) provides
110(a)(2) are not governed by the three-
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uses the term to distinguish this that states must provide assurances that they have year submission deadline of section
adequate legal authority under state and local law
particular type of SIP submission from to carry out the SIP; section 110(a)(2)(C) provides 110(a)(1) and are therefore not
submissions that are intended to satisfy that states must have a SIP-approved program to addressed in this action. These elements
other SIP requirements under the CAA, address certain sources as required by part C of title relate to part D of Title I of the CAA, and
I of the CAA; and section 110(a)(2)(G) provides that
such as ‘‘nonattainment SIP’’ or states must have legal authority to address
submissions to satisfy them are not due
‘‘attainment plan SIP’’ submissions to emergencies as well as contingency plans that are within three years after promulgation of
address the nonattainment planning triggered in the event of such emergencies. a new or revised NAAQS, but rather are
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![78532 Federal Register / Vol. 81, No. 216 / Tuesday, November 8, 2016 / Proposed Rules
2008 Pb, 2008 ozone, 2010 NO2, 2010 program in place that covers all which there is a significant emission
SO2 and 2012 PM2.5 NAAQS for this regulated NSR pollutants, including increase from a modification.’’
element. greenhouse gases (GHGs). The EPA is planning to take
3. Program for enforcement of control On July 25, 2011 (76 FR 44265), we additional steps to revise the federal
measures: Section 110(a)(2)(C) requires approved a revision to the Wyoming PSD rules in light of the Supreme Court
SIPs to ‘‘include a program to provide PSD program that addressed the PSD and subsequent D.C. Circuit opinion.
for the enforcement of the measures requirements of the Phase 2 Ozone Some states have begun to revise their
described in subparagraph (A), and Implementation Rule promulgated on existing SIP-approved PSD programs in
regulation of the modification and November 29, 2005 (70 FR 71612). As a light of these court decisions, and some
construction of any stationary source result, the approved Wyoming PSD states may prefer not to initiate this
within the areas covered by the plan as program meets the current requirements process until they have more
necessary to assure that [NAAQS] are for ozone. information about the planned revisions
achieved, including a permit program as With respect to GHGs, on June 23, to the EPA’s PSD regulations. The EPA
required in parts C and D.’’ 2014, the United States Supreme Court is not expecting states to have revised
To generally meet the requirements of addressed the application of PSD their PSD programs in anticipation of
section 110(a)(2)(C), the State is permitting requirements to GHG the EPA’s planned actions to revise its
required to have SIP-approved PSD, emissions. Utility Air Regulatory Group PSD program rules in response to the
nonattainment NSR, and minor NSR v. Environmental Protection Agency, court decisions.
permitting programs that are adequate to At present, the EPA has determined
134 S.Ct. 2427 (2014). The Supreme
implement the 2008 Pb, 2010 NO2, 2010 that Wyoming’s SIP is sufficient to
Court held that the EPA may not treat
SO2 and 2012 PM2.5 NAAQS. The EPA satisfy Elements (C), (D)(i)(II) prong 3
GHGs as an air pollutant for purposes of
already proposed approval of section and (J) with respect to GHGs. This is
determining whether a source is a major because the PSD permitting program
110(a)(2)(C) for the 2008 ozone NAAQS source required to obtain a PSD permit.
in a separate rulemaking at 81 FR 53365 previously approved by the EPA into
The Court also held that the EPA could the SIP continues to require that PSD
(Aug. 12, 2016). As explained elsewhere continue to require that PSD permits,
in this action, the EPA is not evaluating permits issued to ‘‘anyway sources’’
otherwise required based on emissions contain limitations on GHG emissions
nonattainment related provisions, such of pollutants other than GHGs, (anyway
as the nonattainment NSR program based on the application of BACT. The
sources) contain limitations on GHG EPA most recently approved revisions
required by part D of the Act. The EPA emissions based on the application of
is evaluating the State’s PSD program as to Wyoming’s PSD program on
Best Available Control Technology December 6, 2013 (78 FR 73445). The
required by part C of the Act, and the (BACT).
State’s minor NSR program as required approved Wyoming PSD permitting
In accordance with the Supreme program still contains some provisions
by section 110(a)(2)(C). Court decision, on April 10, 2015, the regarding Step 2 sources that are no
Enforcement of Control Measures U.S. Court of Appeals for the District of longer necessary in light of the Supreme
Requirement Columbia Circuit (the D.C. Circuit) in Court decision and D.C. Circuit’s
Coalition for Responsible Regulation v. amended judgment. Nevertheless, the
Wyoming’s Rule (02) II, Legal
EPA, 606 F. App’x. 6, at *7–8 (D.C. Cir. presence of these provisions in the
Authority, which the EPA approved into
April 10, 2015), issued an amended previously-approved plan does not
Wyoming’s SIP,3 allows the State to
judgment vacating the regulations that render the infrastructure SIP submission
enforce applicable laws, regulations,
implemented Step 2 of the EPA’s PSD inadequate to satisfy Elements (C),
and standards; to seek injunctive relief;
and Title V Greenhouse Gas Tailoring (D)(i)(II) prong 3 and (J). The SIP
and to provide authority to prevent
Rule, but not the regulations that contains the PSD requirements for
construction, modification, or operation
implement Step 1 of that rule. Step 1 of applying the BACT requirement to
of any stationary source at any location
the Tailoring Rule covers sources that greenhouse gas emissions from ‘‘anyway
where emissions from such source will
are required to obtain a PSD permit sources’’ that are necessary at this time.
prevent the attainment or maintenance
based on emissions of pollutants other The application of those requirements is
of a national standard or interfere with
than GHGs. Step 2 applied to sources not impeded by the presence of other
prevention of significant deterioration
that emitted only GHGs above the previously-approved provisions
requirements.
thresholds triggering the requirement to regarding the permitting of Step 2
PSD Requirements obtain a PSD permit. The amended sources. Accordingly, the Supreme
With respect to Elements (C) and (J), judgment preserves, without the need Court decision and subsequent D.C.
the EPA interprets the CAA to require for additional rulemaking by the EPA, Circuit judgment do not prevent the
each state to make an infrastructure SIP the application of the BACT EPA’s approval of Wyoming’s
submission for a new or revised NAAQS requirement to GHG emissions from infrastructure SIP as to the requirements
demonstrating that the air agency has a Step 1 or ‘‘anyway sources.’’ 4 With of Elements (C), (D)(i)(II) prong 3, and
complete PSD permitting program respect to Step 2 sources, the D.C. (J).
meeting the current requirements for all Circuit’s amended judgment vacated the Finally, we evaluate the PSD program
regulated NSR pollutants. The regulations at issue in the litigation, with respect to current requirements for
requirements of Element D(i)(II) prong 3 including 40 CFR 51.166(b)(48)(v), ‘‘to PM2.5. In particular, on May 16, 2008,
may also be satisfied by demonstrating the extent they require a stationary the EPA promulgated the rule,
source to obtain a PSD permit if ‘‘Implementation of the New Source
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the air agency has a complete PSD
permitting program that applies to all greenhouse gases are the only pollutant Review Program for Particulate Matter
regulated NSR pollutants. Wyoming has (i) that the source emits or has the Less Than 2.5 Micrometers (PM2.5)’’ (73
shown that it currently has a PSD potential to emit above the applicable FR 28321) (2008 Implementation Rule).
major source thresholds, or (ii) for On October 20, 2010 the EPA
3 See 40 CFR 52.2620(e), Rule No. (02) II; 41 FR promulgated the rule, ‘‘Prevention of
36652 (Aug. 31, 1976) (approving Wyoming’s 4 See 77 FR 41066 (July 12, 2012) (rulemaking for Significant Deterioration (PSD) for
revisions to its SIP). definition of ‘‘anyway’’ sources). Particulate Matter Less Than 2.5
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a nonattainment area for that standard funding, and authority under State law upon any other local or regional
may also have the potential to interfere to carry out [the SIP] (and is not government, agency or instrumentality
with PSD in an attainment or prohibited by any provision of federal or for implementation of the SIP.
unclassifiable area of another state.6 state law from carrying out the SIP or Therefore, we propose to approve
One way a state may satisfy prong 3 portion thereof).’’ Section Wyoming’s SIP as meeting the
with respect to these sources is by citing 110(a)(2)(E)(ii) also requires each state requirements of section 110(a)(2)(E)(i)
an air agency’s EPA-approved to ‘‘comply with the requirements and (E)(iii) for the 2008 Pb, 2008 ozone,
nonattainment NSR provisions respecting state boards’’ under CAA 2010 NO2, 2010 SO2 and 2012 PM2.5
addressing any pollutants for which the section 128. Section 110(a)(2)(E)(iii) NAAQS.
state has designated nonattainment requires states to provide ‘‘necessary
b. Sub-Element (ii): State Boards
areas. Wyoming has a SIP-approved assurances that, where the State has
nonattainment NSR program which relied on a local or regional government, Section 110(a)(2)(E)(ii) requires each
ensures regulation of major sources and agency, or instrumentality for the state’s SIP to contain provisions that
major modifications in nonattainment implementation of any [SIP] provision, comply with the requirements of section
areas, and therefore satisfies prong 3 the State has responsibility for ensuring 128 of the CAA. Section 128 contains
with regard to this requirement.7 adequate implementation of such [SIP] two explicit requirements: (i) That ‘‘any
The EPA is proposing to approve the provision.’’ board or body which approves permits
infrastructure SIP submission with or enforcement orders under [the CAA]
a. Sub-Elements (i) and (iii): Adequate shall have at least a majority of members
regard to the requirements of prong 3 of
Personnel, Funding, and Legal who represent the public interest and do
section 110(a)(2)(D)(i)(II) for the 2008
Authority Under State Law To Carry not derive any significant portion of
Pb, 2010 NO2, 2010 SO2 and 2012 PM2.5
Out Its SIP, and Related Issues their income from persons subject to
NAAQS.
5. Interstate and International The provisions contained in Articles permits or enforcement orders’’ under
transport provisions: CAA section 1 and 2 of the Wyoming Environmental the CAA; and (ii) that ‘‘any potential
110(a)(2)(D)(ii) requires SIPs to include Quality Act (WEQA) (Chapter 11, Title conflicts of interest by members of such
provisions ensuring compliance with 35 of the Wyoming Statutes) give the board or body or the head of an
the applicable requirements of CAA State adequate authority to carry out its executive agency with similar powers be
sections 126 and 115 (relating to SIP obligations with respect to the 2008 adequately disclosed.’’
interstate and international pollution Pb, 2008 ozone, 2010 NO2, 2010 SO2 In our December 6, 2013 (78 FR
abatement, respectively). Specifically, and 2012 PM2.5 NAAQS. 73445) action, we disapproved
section 126(a) of the CAA requires major With respect to funding, the State Wyoming’s March 26, 2008 and August
new or modified sources to notify receives sections 103 and 105 grant 19, 2011 infrastructure SIP submissions
affected, nearby states of the source’s funds through its Performance for the 1997 and 2006 PM2.5 NAAQS for
potential impacts on air pollution. Partnership Grant along with required CAA Section 110(a)(2)(E)(ii) because the
Sections 126(b) and (c) pertain to state matching funds to provide funding Wyoming SIP did not contain
petitions affected states may seek from necessary to carry out Wyoming’s SIP provisions meeting requirements of
the Administrator of the EPA requirements. CAA section 128(a)(1) or (2). Under
(Administrator) regarding sources Wyoming’s Performance Partnership section 110(c)(1)(B), this disapproval
violating the ‘‘interstate transport’’ Agreement (available within the docket) started a two-year clock for the EPA to
provisions of section 110(a)(2)(D)(i). with the EPA documents resources promulgate a federal implementation
Section 115 of the CAA similarly needed to carry out agreed upon plan (FIP) to address the deficiency.
pertains to international transport of air environmental program goals, measures, On May 31, 2016, the EPA received a
pollution. and commitments, including developing submission from the State of Wyoming
As required by 40 CFR and implementing appropriate SIPs for to address the requirements of section
51.166(q)(2)(iv), Wyoming’s SIP- all areas of the State. Annually, states 128 by adopting revisions to Chapter 1,
approved PSD program requires major update these grant commitments based Section 16 of the Wyoming Department
new or modified sources to provide on current SIP requirements, air quality of Environmental Quality General Rules
notice to states whose air quality may be planning, and applicable requirements of Practice and Procedure. The
impacted by the emissions of sources related to the NAAQS. Wyoming Wyoming Environmental Quality
subject to PSD.8 This suffices to meet satisfactorily met all commitments Council approved these revisions on
the notice requirement of section 126(a). agreed to in the Air Planning Agreement March 2, 2016. A copy of the
Wyoming has no pending obligations for fiscal year 2015. Furthermore, submission, which includes as
under sections 126(c) or 115(b) of the WAQSR Chapter 6, Section 2(a)(v), revisions, the addition of Section 16, Air
CAA; therefore, its SIP currently meets Permit for construction, modification, Quality Division, State Implementation
the requirements of those sections. In and operation, requires the owner and Plan, to Chapter 1, is available within
summary, the SIP meets the operator of each new major source or this docket. These rules address board
requirements of CAA section major modification to pay a fee composition and conflict of interest
110(a)(2)(D)(ii), and the EPA is therefore sufficient to cover the cost of reviewing requirements of section 128(a)(1) and
proposing approval of this element for and acting on permit applications. (2). We propose to approve this new
the 2008 Pb, 2008 ozone, 2010 NO2, Collectively, these rules and rule language as meeting the
2010 SO2 and 2012 PM2.5 NAAQS. commitments provide evidence that the requirements of section 128 for the
Wyoming DEQ has adequate personnel reasons explained in more detail below.
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6. Adequate resources: Section
110(a)(2)(E)(i) requires states to provide (see non-regulatory document, Because this revision meets the
‘‘necessary assurances that the state Resources Document, cited in requirements of section 128, we also
[. . .] will have adequate personnel, Wyoming’s certifications), funding, and propose to approve the State’s
legal authority to carry out the State’s infrastructure SIP submissions for
6 Id.at 31. implementation plan and related issues. element 110(a)(2)(E)(ii). The State
7 See WAQSR Chapter 6, Section 13. With respect to section submitted the provisions to meet section
8 See WAQSR Chapter 6, Section 2. 110(a)(2)(E)(iii), the State does not rely 128 separately, but section 128 is not
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NAAQS-specific and once the State has subsections 128(a)(1) and 128(a)(2). A body approves permits or enforcement
met the requirements of section 128, mere narrative description of state orders under the CAA or whether a head
that is sufficient for purposes of section statutes or rules, or of a state’s current of a state agency (or his/her delegates)
110(a)(2)(E)(ii) for all NAAQS. If we or past practice in constituting a board performs these duties. Thus, all state
finalize this proposed approval for the or body and in disclosing potential SIPs must contain provisions that
2008 Pb, 2008 ozone, 2010 NO2, 2010 conflicts of interest, is not a requirement require adequate disclosure of potential
SO2 and 2012 PM2.5 NAAQS, this will contained in the SIP and does not conflicts of interest in order to meet the
also resolve the prior disapproval for satisfy the plain text of section 128. requirements of subsection 128(a)(2).
element 110(a)(2)(E)(ii) for the 1997 and Subsection 128(a)(1) applies only to The question of which entities or parties
2006 PM2.5 NAAQS and terminate the states that have a board or body that is must be subject to such disclosure
EPA’s FIP obligation. composed of multiple individuals and requirements must be evaluated by
We are proposing to approve the that, among its duties, approves permits states and the EPA in light of the
State’s May 31, 2016 SIP submission as or enforcement orders under the CAA. specific facts and circumstances of each
meeting the requirements of section 128 It does not apply in states that have no state’s regulatory structure.
because we believe that it complies with such multi-member board or body that A state may satisfy the requirements
the statutory requirements and is performs these functions, and where of section 128 by submitting for
consistent with the EPA’s guidance instead a single head of an agency or adoption into the SIP a provision of
recommendations concerning section other similar official approves permits state law that closely tracks or mirrors
128. In 1978, the EPA issued a guidance or enforcement orders under the CAA. the language of the applicable
memorandum recommending ways This flows from the text of section 128, provisions of section 128. A state may
states could meet the requirements of for two reasons. First, as subsection take this approach in two ways. First,
section 128, including suggested 128(a)(1) refers to a majority of members the state may adopt the language of
interpretations of certain key terms in of the board or body in the plural, we subsections 128(a)(1) and 128(a)(2)
section 128.9 In this proposed notice, think it reasonable to read subsection verbatim. Under this approach, the state
we discuss additional relevant aspects 128(a)(1) as not creating any will be able to meet the continuing
of section 128. We first note that, in the requirements for an individual with sole requirements of section 128 without any
conference report of the 1977 authority for approving permits or additional, future SIP revisions, even if
amendments to the CAA, the conference enforcement orders under the CAA. the state adds or removes authority,
committee stated, ‘‘[i]t is the Second, subsection 128(a)(2) explicitly either at the state or local level, to
responsibility of each state to determine applies to the head of an executive
individual or to boards or bodies to
the specific requirements to meet the agency with ‘‘similar powers’’ to a board
approve permits or enforcement orders
general requirements of [section or body that approves permits or
under the CAA so long as the state
128].’’ 10 This legislative history enforcement orders under the CAA,
continues to meet section 128
indicates that Congress intended states while subsection 128(a)(1) omits any
requirements.
to have some latitude in adopting SIP reference to heads of executive agencies.
provisions with respect to section 128, We infer that subsection 128(a)(1) Second, the state may modify the
so long as states meet the statutory should not apply to heads of executive language of subsections 128(a)(1) (if
requirements of the section. We also agencies who approve permits or applicable) and 128(a)(2) to name the
note that Congress explicitly provided enforcement orders. States with no particular board, body, or individual
in section 128 that states could elect to multi-member board or body that official with approval authority. In this
adopt more stringent requirements, as performs these functions, and instead case, if the state subsequently modifies
long as the minimum requirements of have a single head of an agency or other that authority, the state may have to
section 128 are met. similar official who approves CAA submit a corresponding SIP revision to
In implementing section 128, the EPA permits or enforcement orders, can meet the continuing requirements of
has identified a number of key satisfy the requirements of CAA section 128. If the state chooses to not
considerations relevant to evaluation of 128(a)(1) with a negative declaration to mirror the language of section 128, the
a SIP submission. The EPA has that effect. state may adopt state statutes and/or
identified these considerations in the Subsection 128(a)(2) applies to all regulations that functionally impose the
1978 guidance and in subsequent states, regardless of whether the state same requirements as those of section
rulemaking actions on SIP submissions has a multi-member board or body that 128, including definitions for key terms
relevant to section 128, whether as SIP approves permits or enforcement orders such as those recommended in the
revisions for this specific purpose or as under the CAA. Although the title of EPA’s 1978 guidance. While either of
an element of broader actions on section 128 is ‘‘State boards,’’ the these approaches would meet the
infrastructure SIP submissions for one language of subsection 128(a)(2) minimum requirements of section 128,
or more NAAQS. explicitly applies where the head of an the statute also explicitly authorizes
Each state must meet the executive agency, rather than a board or states to adopt more stringent
requirements of section 128 through body, approves permits or enforcement requirements, for example, to impose
provisions that the EPA approves into orders. In instances where the head of additional requirements for recusal of
the state’s SIP and are thus made an executive agency delegates his or her board members from decisions, above
federally enforceable. Section 128 power to approve permits or and beyond the explicit board
explicitly mandates that each SIP ‘‘shall enforcement orders, or where statutory composition requirements. Although
authority to approve permits or such recusal alone does not meet the
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contain requirements’’ that satisfy
enforcement orders is nominally vested requirements of section 128, states have
9 Memorandum from David O. Bickart, Deputy in another state official, the requirement the authority to require such recusal
General Counsel, to Regional Air Directors, to adequately disclose potential over and above the explicit
Guidance to States for Meeting Conflict of Interest conflicts of interest still applies. In other requirements of section 128. These
Requirements of Section 128 (Mar. 2, 1978).
10 H.R. Rep. 95–564 (1977), reprinted in 3 words, the EPA interprets section approaches give states flexibility in
Legislative History of the Clean Air Act 128(a)(2) to apply to all states, implementing section 128, while still
Amendments of 1977, 526–27 (1978). regardless of whether a state board or ensuring consistency with the statute.
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As previously explained, the EPA or enforcement orders, as required by 2008, which modified the requirements
interprets subsection 128(a)(1) to apply the Clean Air Act, Section 128(a)(1).’’ for collecting and reporting air
only to states that have a board or body We propose to approve this submission emissions data (73 FR 76539). The
with multiple members that, among its as satisfying the requirements of AERR shortened the time states had to
duties, approves permits or enforcement subsection 128(a)(1). report emissions data from 17 to 12
orders under the Act. Wyoming’s The State’s May 31, 2016 submittal months, giving states one calendar-year
Environmental Quality Act establishes includes requirements that Council to submit emissions data. All states are
the Environmental Quality Council members ‘‘disclose any potential required to submit a comprehensive
(EQC or Council), a separate agency of conflicts of interest in a public meeting emissions inventory every three years
state government. See Wyoming Statutes of the Council as required by the Clean and report emissions for certain larger
35–11–111(a). The members of the Air Act, Section 128(a)(2).’’ Thus, sources annually through the EPA’s
Council are appointed by the Governor. Wyoming’s submittal addresses online Emissions Inventory System.
Among the duties of the Council are disclosure of potential conflicts of States report emissions data for the six
conducting hearings in any case interest from Council members that criteria pollutants and their associated
contesting the administration or approve permits and enforcement orders precursors—nitrogen oxides, sulfur
enforcement of any law, rule, regulation, under the Act. We therefore propose to dioxide, ammonia, lead, carbon
standard or order issued or approve this submission as satisfying monoxide, particulate matter and
administered by DEQ or by any division the requirements of subsection volatile organic compounds. Many
of DEQ. Id. at 35–11–112(a)(iii). In 128(a)(2). states also voluntarily report emissions
particular, a person subject to a DEQ In summary, the EPA proposes to of hazardous air pollutants. Wyoming
order may request a hearing before the approve Wyoming’s May 31, 2016 made its latest update to the NEI in May
Council. Id. at 35–11–701(c)(ii)–(iv). submittal into the SIP to meet the 2016. The EPA compiles the emissions
The Council must also conduct hearings requirements of section 128 of the Act. data, supplementing it where necessary,
in any case contesting the grant, denial, We also propose to approve Wyoming’s and releases it to the general public
suspension, revocation or renewal of infrastructure SIP with respect to the through the Web site https://
any permit authorized or required by requirements of Section 110(a)(2)(E)(ii) www.epa.gov/air-emissions-inventories.
the Environmental Quality Act. Id. at for 2008 Pb, 2008 ozone, 2010 NO2, 2010
SO2 and 2012 PM2.5 NAAQS. Based on the analysis above, we
35–11–112(a)(iv). Under Article 2, Air
7. Stationary source monitoring propose to approve the Wyoming SIP as
Quality, and Article 8, Permits, of the
system: Section 110(a)(2)(F) requires: (i) meeting the requirements of CAA
Environmental Quality Act, any
‘‘The installation, maintenance, and section 110(a)(2)(F) for the 2008 Pb,
applicant for an air permit may petition
replacement of equipment, and the 2008 ozone, 2010 NO2, 2010 SO2 and
the Council for a hearing to contest
implementation of other necessary 2012 PM2.5 NAAQS.
DEQ’s decision on the permit. See id. at
35–11–208; 35–11–802. steps, by owners or operators of 8. Emergency powers: Section
Given the duties and authorities of the stationary sources to monitor emissions 110(a)(2)(G) of the CAA requires
Council, the Council appears to be a from such sources; (ii) periodic reports infrastructure SIPs to ‘‘provide for
‘‘board or body which approves permits on the nature and amounts of emissions authority comparable to that in [CAA
or enforcement orders’’ under the and emissions-related data from such section 303] and adequate contingency
CAA.11 As the EPA has explained in sources; and (iii) correlation of such plans to implement such authority[.]’’
other rulemaking actions, e.g., 78 FR reports by the State agency with any Under CAA section 303, the EPA
32613 (May 31, 2013), we interpret emission limitations or standards Administrator has authority to bring suit
section 128(a)(1) to mean that boards established pursuant to [the Act], which to immediately restrain an air pollution
that are the potential final reports shall be available at reasonable source that presents an ‘‘imminent and
decisionmaker via permit and times for public inspection.’’ substantial endangerment to public
enforcement order appeals ‘‘approve’’ Wyoming’s SIP approved monitoring health or welfare, or the
those permits and enforcement orders. provision cited by Wyoming in its environment.’’ 12 If such action may not
For example, by being the final certifications (WAQSR Chapter 6, practicably assure prompt protection,
decisionmaker with respect to questions Section 2, Permit requirements for then the Administrator has authority to
such as whether a source receives a construction, modification, and issue temporary administrative orders to
permit and the specific contents of such operation), pertains to its program of protect the public health or welfare, or
a permit, the Council is an entity that periodic emissions testing and plant the environment, and such orders can
approves the permit within the meaning inspections of stationary sources, and be extended if the EPA subsequently
of 128(a)(1). Thus, the EQC is subject to related testing requirements and files a civil suit. We propose to find that
the requirements of 128(a)(1). protocols (including periodic reporting) Wyoming’s infrastructure SIP submittals
Wyoming’s May 31, 2016 submission to assure compliance with emissions provide for authority for the State
includes a provision in the Wyoming limits. Additionally, WAQSR Chapter 7, comparable to that granted to the EPA
DEQ Chapter 1, General Rules of Section 2 (Continuous monitoring Administrator to act in the face of an
Practice and Procedure Section 16(a)(i), requirements for existing sources), imminent and substantial endangerment
Air Quality Division, State requires certain sources to install and to the public’s health or welfare, or the
Implementation Plan, which provides maintain continuous emission monitors environment.
that the Council ‘‘shall have at least a to assure compliance with emission
limitations.
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majority of members who represent the 12 A discussion of the requirements for meeting
public interest and do not derive a Furthermore, Wyoming is required to CAA section 303 is provided in our notice of
significant portion of their income from submit emissions data to the EPA for proposed rulemaking: Promulgation of State
persons subject to Air Quality permits purposes of the National Emissions Implementation Plan Revisions; Infrastructure
Inventory (NEI). The NEI is the EPA’s Requirements for the 1997 and 2006 PM2.5, 2008
Lead, 2008 Ozone, and 2010 NO2 National Ambient
11 See, e.g., 78 FR 32613 (May 31, 2013), for a central repository for air emissions data. Air Quality Standards; South Dakota (79 FR 71040,
discussion of the phrase ‘‘board or body which The EPA published the Air Emissions Dec. 1, 2014) under ‘‘VI. Analysis of State
approves permits or enforcement orders.’’ Reporting Rule (AERR) on December 5, Submittals, 8. Emergency powers.’’
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Wyoming’s SIP certifications with by submitting a plan that meets the and 40 CFR part 51, appendix L do not
regard to the section 110(a)(2)(G) applicable requirements of 40 CFR part apply to Pb.
emergency order requirements cite EPA 51, subpart H for the relevant NAAQS Based on the above analysis, we
approved provisions (WAQSR Chapter if the NAAQS is covered by those propose approval of Wyoming’s SIP as
12, Section 2, Air pollution emergency regulations. The EPA approved meeting the requirements of CAA
episodes) which establish a basis for the Wyoming’s Emergency Episode Plan on section 110(a)(2)(G) for the 2008 Pb,
Division to issue notices to the public February 9, 1982 at 47 FR 5892. We find 2008 ozone, and 2010 NO2, 2010 SO2
relating to levels of air pollution from that Wyoming’s Emergency Episode and 2012 PM2.5 NAAQS.
‘‘alerts,’’ ‘‘warnings,’’ and Plan and air pollution emergency rules 9. Future SIP revisions: Section
‘‘emergencies’’ to prevent ‘‘a substantial (WAQSR Chapter 12, Section 2, Air 110(a)(2)(H) requires that SIPs provide
threat to the health of persons’’ if ‘‘such pollution emergency episodes) include for revision of such plan: (i) ‘‘[f]rom
[pollution] levels are sustained or PM10 13 and SO2 14; establish stages of time to time as may be necessary to take
exceeded’’ in places that are attaining or episode criteria; provide for public account of revisions of such national
have attained such pollution levels. announcement whenever any episode primary or secondary ambient air
WAQSR Chapter 12, Section 2(a) allows stage has been determined to exist; and quality standard or the availability of
for the broad application of this specify emission control actions to be improved or more expeditious methods
provision to ‘‘air pollutants’’ beyond taken at each episode stage, consistent of attaining such standard[;] and (ii)
PM10 and SO2. Sections 35–11–115(a) with the EPA emergency episode SIP except as provided in paragraph (3)(C),
and (b) of the WEQA also provides the requirements set forth at 40 CFR part 51 whenever the Administrator finds on
Director power to issue emergency subpart H (prevention of air pollution the basis of information available to the
orders ‘‘to reduce or discontinue emergency episode) for particulate Administrator that the [SIP] is
immediately the actions causing the matter, ozone, NO2, and SO2. substantially inadequate to attain the
condition of pollution’’ and institute ‘‘a As noted in the 2011 Memo ‘‘based on [NAAQS] which it implements or to
civil action for immediate injunctive [the] EPA’s experience to date with the otherwise comply with any additional
relief to halt any activity’’ presenting an Pb NAAQS and designating Pb requirements under this [Act].’’
‘‘immediate and substantial danger to The general provisions in Article 1 of
nonattainment areas, [the] EPA expects
human or animal health or safety.’’ the WEQA (Article 1, Chapter 11, Title
that an emergency episode associated
Furthermore, as stated in Wyoming’s 35 of the Wyoming Statutes) and the
with Pb emissions would be unlikely
2012 PM2.5 certification, WEQA Section particular provision in Article 2, section
and, if it were to occur, would be the
35–11–901(a) authorizes the DEQ to 35–11–202 of the Wyoming Statutes,
result of a malfunction or other
seek a penalty or injunction from a court gives the Director sufficient authority to
emergency situation at a relatively large
of competent jurisdiction for ‘‘[a]ny meet the requirements of CAA section
source of Pb’’ (page 14).15 Accordingly,
person who violates, or any director, 110(a)(2)(H). Therefore, we propose to
the EPA believes the central
officer or agent of a corporate permittee approve Wyoming’s SIP as meeting the
components of a contingency plan requirements of CAA section
who willfully and knowingly would be to reduce emissions from the
authorizes, orders or carries out the 110(a)(2)(H).
source at issue and communicate with 10. Consultation with government
violation of any provision of this act, or the public as needed. We note that 40
any rule, regulation, standard or permit officials, public notification, PSD and
CFR part 51, subpart H (51.150–51.152) visibility protection: Section 110(a)(2)(J)
adopted hereunder or who violates any
determination or order of the council requires that each SIP ‘‘meet the
13 The EPA has not yet promulgated regulations
pursuant to this act or any rule, applicable requirements of section 121
for ambient levels pertaining to priority levels for
regulation, standard permit, license or PM2.5 under the 2012 NAAQS (2013 Memo, p. 47). of this title (relating to consultation),
variance. . .’’ The EPA’s September 25, 2009 Memo (available section 127 of this title (relating to
While no single Wyoming statute within the docket) suggested that states with areas public notification), and part C of this
that have had a PM2.5 exceedance greater than 140.4 subchapter (relating to PSD of air
mirrors the authorities of CAA section mg/m3 should develop and submit an emergency
303, we propose to find that the episode plan. If no such concentration was recorded quality and visibility protection).’’
combination of WEQA and WAQSR in the last three years, the guidance suggested that In its certifications, the State cites one
provisions previously discussed provide the State can rely on its general emergency non-regulatory document relative to
authorities. In this rulemaking, we continue to view consultation with government officials
for authority comparable to section 303. these suggestions as appropriate in assessing
Section 303 authorizes the Wyoming’s SIP for this element. Wyoming has not
(e.g., Consultation, approved by EPA
Administrator to immediately bring suit had such a recorded PM2.5 level and thus an July 2, 1979 (44 FR 38473)) to meet the
to restrain and issue emergency orders emergency episode plan for PM2.5 is not necessary. requirements of CAA section 121. The
when necessary, and to take prompt The SIP therefore meets the requirements of CAA State has demonstrated that it has the
section 110(a)(2)(G) for the 2012 PM2.5 NAAQS.
administrative action against any person 14 As stated in Wyoming’s 2012 PM
authority and rules in place to provide
2.5
causing or contributing to air pollution infrastructure SIP certification, ‘‘WAQSR Chapter a process of consultation with general
that presents an imminent and 12, Emergency Controls, establishes a basis for the purpose local governments, designated
substantial endangerment to public Division to issue air pollution alerts, warnings, or organizations of elected officials of local
emergencies in order to prevent the occurrence of governments and any Federal Land
health or welfare, or the environment. an air pollution emergency stemming from the
Therefore, we propose that Wyoming’s effects of air pollutants on the health of persons. Manager having authority over federal
SIP submittals sufficiently meet the While guidance for the issuance of alerts, warnings, land to which the SIP applies,
requirements of CAA 110(a)(2)(G) or emergencies is established specifically for PM10 consistent with the requirements of
and SO2, the chapter does not limit its purview to CAA section 121 (see Wyoming’s non-
because they demonstrate that Wyoming
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these two pollutants—and could encompass other
has authority comparable to CAA pollutants such as PM2.5.’’ Furthermore, Wyoming regulatory document, Intergovernmental
section 303. is not required to have a specific contingency plan Cooperation). Furthermore, the non-
States must also have adequate for particulate matter, ozone, NO2, or SO2 (see 40 regulatory document, Public
contingency plans adopted into their CFR 52.2621). Notification of Air Quality, approved by
15 October 14, 2011, ‘‘Guidance on Infrastructure
SIP to implement the air agency’s SIP Elements Required Under Sections 110(a)(1)
EPA July 2, 1979 (44 FR 38473), cited
emergency episode authority (as and (2) for the 2008 Lead (Pb) National Ambient Air by Wyoming, meets the general
previously discussed). This can be done Quality Standards (NAAQS).’’ requirements of CAA section 127 to
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notify the public when the NAAQS have request, of data related to such air WAQSR Chapter 6, Section 2,
been exceeded. quality modeling to the Administrator.’’ paragraph (o) and WEQA sections 35–
Wyoming’s SIP regulations for its PSD Wyoming’s PSD program requires that 11–211(a), Fees, require applicants of
program were first federally-approved estimates of ambient air concentrations construction permits to pay the costs for
and made part of the SIP on September be based on applicable air quality DEQ to review and act on the permit
6, 1979 (44 FR 51977). The EPA has models specified in appendix W of 40 applications. We also note that fees
further evaluated the State’s SIP- CFR part 51, and that modification or collected under Wyoming’s approved
approved PSD program in section VI.3 substitution of a model specified in title V permit program (64 FR 8523, Feb,
which discusses element 110(a)(2)(C) of appendix W must be approved by the 22, 1990) are sufficient to implement
this proposed action. As explained in Administrator (see WAQSR Chapter 6, and enforce the program (see 59 FR
that section, we propose to approve Section 2(b)(iv)). Additionally, WAQSR 48802, Sept. 23, 1994). Therefore we
Wyoming’s infrastructure SIPs for the Chapter 6, Section 2(f)(iv) authorizes the propose to approve the submissions as
2008 Pb, 2010 NO2, 2010 SO2 and 2012 AQD Administrator to impose any submitted by the State for the 2008 Pb,
PM2.5 NAAQS with respect to the reasonable conditions upon an approval 2008 ozone, 2010 NO2, 2010 SO2 and
requirement in element (C) to have a to construct, modify or operate, 2012 PM2.5 NAAQS.
permit program as required by Part C of including modeling ‘‘. . . to determine 13. Consultation/participation by
the Act. We similarly propose to the effect which emissions from a affected local entities: Section
approve the infrastructure SIPs for the source may have, or is having, on air 110(a)(2)(M) requires states to ‘‘provide
2008 Pb, 2010 NO2, 2010 SO2 and 2012 quality in any area which may be for consultation and participation [in
PM2.5 NAAQS with respect to the affected by emissions from such SIP development] by local political
requirement in element (J) that the SIP source.’’ Furthermore, the WEQA 35– subdivisions affected by [the SIP].’’
meet the applicable requirements of Part 11–1101(b) and Wyoming’s PPA provide The non-regulatory document,
C with respect to PSD. Wyoming with the authority to submit
Finally, with regard to the applicable Intergovernmental Cooperation, cited in
air quality modeling date to the Wyoming’s submittals meets the
requirements for visibility protection,
Administrator.16 As a result, the SIP requirements of CAA section
the EPA recognizes states are subject to
provides for such air quality modeling 110(a)(2)(M). We propose to approve
visibility and regional haze program
as the Administrator has prescribed. Wyoming’s SIP as meeting these
requirements under part C of the Act. In
the event of the establishment of a new Therefore, we propose to approve the requirements for the 2008 Pb, 2008
NAAQS, however, the visibility and Wyoming SIP as meeting CAA section ozone, 2010 NO2, 2010 SO2 and 2012
regional haze program requirements 110(a)(2)(K) for the 2008 Pb, 2008 ozone, PM2.5 NAAQS.
under part C do not change. Thus, we 2010 NO2, 2010 SO2 and 2012 PM2.5
VII. What action is the EPA taking?
find that there are no applicable NAAQS.
visibility requirements under section 12. Permitting fees: Section In this action, the EPA is proposing to
110(a)(2)(J) when a new NAAQS 110(a)(2)(L) requires ‘‘the owner or approve infrastructure elements for the
becomes effective. operator of each major stationary source 2008 Pb, 2008 ozone, 2010 NO2, 2010
Based on the above analysis, we to pay to the permitting authority, as a SO2 and 2012 PM2.5 NAAQS from the
propose to approve the Wyoming SIP as condition of any permit required under State’s certifications as shown in Table
meeting the requirements of CAA this [Act], a fee sufficient to cover[:] (i) 1. Elements we propose no action on are
section 110(a)(2)(J) for the 2008 Pb, 2008 the reasonable costs of reviewing and reflected in Table 2. Finally, the EPA is
ozone, 2010 NO2, 2010 SO2 and 2012 acting upon any application for such a proposing to approve a new Wyoming
PM2.5 NAAQS. permit[;] and (ii) if the owner or DEQ General Rules of Practice and
11. Air quality and modeling/data: operator receives a permit for such Procedures submitted on May 31, 2016
Section 110(a)(2)(K) requires each SIP to source, the reasonable costs of to satisfy requirements of element
provide for: (i) ‘‘the performance of such implementing and enforcing the terms (E)(ii),which refers to requirements
air quality modeling as the and conditions of any such permit (not related to state boards.
Administrator may prescribe for the including any court costs or other costs A comprehensive summary of
purpose of predicting the effect on associated with any enforcement infrastructure elements, and additions
ambient air quality of any emissions of action), until such fee requirement is to the Wyoming DEQ Rules of Practice
any air pollutant for which the superseded with respect to such sources and Procedures organized by the EPA’s
Administrator has established a by the Administrator’s approval of a fee proposed rule action are provided in
[NAAQS]; and (ii) the submission, upon program under [title] V.’’ Table 1 and Table 2.
TABLE 1—LIST OF WYOMING INFRASTRUCTURE ELEMENTS AND REVISIONS THAT THE EPA IS PROPOSING TO APPROVE
Proposed for approval
October 12, 2011 submittal—2008 Pb NAAQS: (A), (B), (C), (D)(i)(II) prong 3, (D)(ii), (E), (F), (G), (H), (J), (K), (L) and (M).
March 6, 2015 submittal—2010 SO2 NAAQS: (A), (B), (C), (D)(i)(II) prong 3, (D)(ii), (E), (F), (G), (H), (J), (K), (L) and (M).
February 6, 2014 submittal—2008 Ozone NAAQS: (A), (B), (D)(ii), (E), (F), (G), (H), (J), (K), (L) and (M).
January 24, 2014 submittal—2010 NO2 NAAQS: (A), (B), (C), (D)(i)(II) prong 3, (D)(ii), (E), (F), (G), (H), (J), (K), (L) and (M).
June 24, 2016 submittal—2012 PM2.5 NAAQS: (A), (B), (C), (D)(i)(II) prong 3, (D)(ii), (E), (F), (G), (H), (J), (K), (L) and (M).
Lhorne on DSK30JT082PROD with PROPOSALS
May 31, 2016 submittal—New Rules to Wyoming DEQ General Rules of Practice and Procedure, CAA Section 128: Chapter 1, General Provi-
sions, Section 16, Air Program State Implementation Plan.
16 See Email from Michael Morris ‘‘Question Quality Modeling Data’’ September 15, 2016,
Regarding iSIP Element K- Submission of Air available within docket.
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![Federal Register / Vol. 81, No. 216 / Tuesday, November 8, 2016 / Proposed Rules 78539
TABLE 2—LIST OF WYOMING INFRASTRUCTURE ELEMENTS AND REVISIONS THAT THE EPA IS PROPOSING TO TAKE NO
ACTION ON
Proposed for no action
(revision to be made in separate rulemaking action.)
January 19, 2012 submittal—2008 Pb NAAQS: (D)(i)(I) prongs 1 and 2, (D)(i)(II) prong 4.
February 6, 2014 submittal—2008 Ozone NAAQS: (D)(i) prongs 1–4 and (C) (proposed action on (D)(i)(II) prong 3 and (C) at 81 FR 53365,
Aug. 12, 2016).
January 31, 2013 submittal—2010 NO2 NAAQS: (D)(i)(I) prongs 1 and 2, (D)(i)(II) prong 4.
June 2, 2013 submittal—2010 SO2 NAAQS: (D)(i)(I) prongs 1 and 2, (D)(i)(II) prong 4.
December 22, 2015 submittal—2012 PM2.5 NAAQS: (D)(i)(I) prongs 1 and 2, (D)(i)(II) prong 4.
VIII. Incorporation by Reference • Is certified as not having a Authority: 42 U.S.C. 7401 et seq.
significant economic impact on a Dated: October 20, 2016.
In this rulemaking, the EPA is
substantial number of small entities Shaun L. McGrath,
proposing to include in a final EPA rule
under the Regulatory Flexibility Act (5 Regional Administrator, Region 8.
regulatory text that includes
U.S.C. 601 et seq.);
incorporation by reference. In [FR Doc. 2016–26860 Filed 11–7–16; 8:45 am]
• Does not contain any unfunded
accordance with requirements of 1 CFR BILLING CODE 6560–50–P
mandate or significantly or uniquely
51.5, the EPA is proposing to
affect small governments, as described
incorporate by reference the Wyoming
in the Unfunded Mandates Reform Act
Department of Environmental Quality
of 1995 (Pub. L. 104–4); FEDERAL COMMUNICATIONS
General Rules of Practice and • Does not have federalism
Procedure, Chapter 1, General COMMISSION
implications as specified in Executive
Provisions, Section 16, Air Program Order 13132 (64 FR 43255, Aug. 10,
State Implementation Plan Chapter 1, 47 CFR Parts 10 and 11
1999);
General Provisions, Section 16, Air • Is not an economically significant
Program State Implementation Plan [PS Docket No. 15–91; PS Docket No. 15–
regulatory action based on health or 94; FCC 16–127]
pertaining to state board requirements safety risks subject to Executive Order
VI.6. b. Sub-element (ii): State boards, of 13045 (62 FR 19885, April 23, 1997); Wireless Emergency Alerts;
this preamble. The EPA has made, and • Is not a significant regulatory action Amendments to the Commission’s
will continue to make, these documents subject to Executive Order 13211 (66 FR Rules Regarding the Emergency Alert
generally available through 28355, May 22, 2001); System
www.regulations.gov and/or at the EPA • Is not subject to requirements of
Region 8 office (please contact the AGENCY: Federal Communications
section 12(d) of the National
person identified in the ‘‘For Further Commission.
Technology Transfer and Advancement
Information Contact’’ section of this Act of 1995 (15 U.S.C. 272 note) because ACTION: Proposed rule.
preamble for more information). application of those requirements would
SUMMARY: This document proposes
IX. Statutory and Executive Orders be inconsistent with the CAA; and,
revisions to Wireless Emergency Alert
Review • Does not provide the EPA with the
(WEA) rules to improve WEA,
discretionary authority to address, as
Under the CAA, the Administrator is leveraging advancements in technology
appropriate, disproportionate human
required to approve a SIP submission to improve WEA’s multimedia,
health or environmental effects, using
that complies with the provisions of the multilingual and geo-targeting
practicable and legally permissible
Act and applicable federal regulations capabilities, as well as lessons learned
methods, under Executive Order 12898
(42 U.S.C. 7410(k), 40 CFR 52.02(a)). from alert originators’ experience since
(59 FR 7629, Feb. 16, 1994).
Thus, in reviewing SIP submissions, the WEA was initially deployed. This
The SIP is not approved to apply on
EPA’s role is to approve state choices, document also proposes steps to
any Indian reservation land or in any
provided that they meet the criteria of improve the availability of information
other area where the EPA or an Indian
the CAA. Accordingly, this proposed about WEA, both to empower
tribe has demonstrated that a tribe has
action merely approves some state law consumers to make informed choices
jurisdiction. In those areas of Indian
as meeting federal requirements and about the emergency information that
country, the rule does not have tribal
disapproves other state law because it they will receive, as well as to promote
implications and will not impose
does not meet federal requirements; this transparency for emergency
substantial direct costs on tribal
proposed action does not impose management agencies and other WEA
governments or preempt tribal law as
additional requirements beyond those stakeholders. By this action, the
specified by Executive Order 13175 (65
imposed by state law. For that reason, Commission affords interested parties
FR 67249, November 9, 2000).
this proposed action: an opportunity to participate more fully
• Is not a ‘‘significant regulatory List of Subjects in 40 CFR Part 52 in WEA, and to enhance the utility of
action’’ subject to review by the Office Environmental protection, Air WEA as an alerting tool.
Lhorne on DSK30JT082PROD with PROPOSALS
of Management and Budget under pollution control, Carbon monoxide, DATES: Comments are due on or before
Executive Order 12866 (58 FR 51735, Greenhouse gases, Incorporation by December 8, 2016 and reply comments
Oct. 4, 1993); reference, Intergovernmental relations, are due on or before January 9, 2017.
• Does not impose an information Lead, Nitrogen dioxide, Ozone, ADDRESSES: You may submit comments,
collection burden under the provisions Particulate matter, Reporting and identified by PS Docket No. 15–91, P.S.
of the Paperwork Reduction Act (44 recordkeeping requirements, Sulfur Docket No. 15–94, FCC 16–127, by any
U.S.C. 3501 et seq.); oxides, Volatile organic compounds. of the following methods:
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Document Created: 2018-02-14 08:23:41
Document Modified: 2018-02-14 08:23:41
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Proposed rule. | |
| Dates | Written comments must be received on or before December 8, 2016. | |
| Contact | Abby Fulton, Air Program, U.S. Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6563, [email protected] | |
| FR Citation | 81 FR 78529 | |
| CFR Associated | Environmental Protection; Air Pollution Control; Carbon Monoxide; Greenhouse Gases; Incorporation by Reference; Intergovernmental Relations; Lead; Nitrogen Dioxide; Ozone; Particulate Matter; Reporting and Recordkeeping Requirements; Sulfur Oxides and Volatile Organic Compounds |
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