[Federal Register Volume 59, Number 120 (Thursday, June 23, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-15311]
[[Page Unknown]]
[Federal Register: June 23, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[WY2-1-6365; FRL-5003-4]
Supplemental Notice to the Proposed Approval and Promulgation of
State Implementation Plans; Wyoming; Revision to Section 3 Particulates
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: In this action, EPA is proposing approval of the revision made
to Section 3, Particulates of the Wyoming Air Quality Standards and
Regulations (WAQSR) of the Wyoming State Implementation Plan (SIP). The
action makes the revision a part of the Federally approved SIP.
DATES: Comments on this document must be received on or before July 25,
1994.
ADDRESSES: Written comments should be addressed to: Douglas M. Skie,
Chief, Air Programs Branch, Environmental Protection Agency, Region
VIII, 999 18th Street, suite 500, Denver, Colorado 80202-2466.
Copies of the applicable documentation are available for public
inspection during normal business hours at the following locations:
Environmental Protection Agency, Region VIII, Air Programs Branch, 999
18th Street, 6th floor, South Tower, Denver, Colorado, 80202-2466; and
the Air Quality Division, Department of Environmental Quality,
Herschler Building, 4th floor, 122 West 25th Street, Cheyenne, Wyoming,
82002.
FOR FURTHER INFORMATION CONTACT: Sara Summers, Environmental Protection
Agency, Region VIII, Air Programs Branch, 999 18th Street, suite 500,
Denver, Colorado, 80202-2466, (303) 293-0966.
SUPPLEMENTARY INFORMATION:
A. Overview
On August 26, 1992, EPA proposed to approve a revision to Section
3, Particulates, of the Wyoming Air Quality Standards and Regulations
(WAQSR) of the Wyoming SIP. The revision to Section 3, which adds
subsection (d), defines ``ambient air'' for surface coal mines located
in Wyoming's Powder River Basin (PRB). The details of this proposed
rule can be found at 57 FR 38641-38650.
Since publication of the proposed action, EPA has reevaluated the
need to conduct the 30-year ``life-of-mine'' modeling as outlined in
the proposed action. As a result, a Memorandum of Agreement (MOA) was
written between Dennis Hemmer, Director of the Wyoming DEQ and Patricia
D. Hull, Director of the EPA Region VIII, Air, Radiation and Toxics
Division, describing procedures to be followed by the State of Wyoming
and EPA in protecting the PM10 NAAQS in the Powder River Basin.
The approach outlined in the MOA is based upon continued ambient air
quality monitoring, rather than the implementation of the 30-year life-
of-mine modeling study. A detailed discussion of the MOA is provided
below. Since EPA has changed the basis for approving the revisions to
the State's definition of ambient air, EPA is re-proposing approval of
these revisions.
B. Memorandum of Agreement
1. Compliance
The signed MOA between EPA and DEQ was submitted to the DEQ on
January 24, 1994. A review of the PM10 ambient monitoring data
from the Powder River Basin, and the actions by the DEQ and the Wyoming
coal companies to maintain an adequate ambient monitoring network,
support EPA's view that these actions have proven successful in
maintaining the PM10 NAAQS in the region. Other factors that were
taken into account were: (1) The fact that the DEQ included in all the
mines' permits explicit requirements to implement best available work
practices (BAWP); (2) that the DEQ is using necessary enforcement to
ensure that BAWP are and will continue to be implemented; and (3) that
the probability of future PM10 NAAQS violations in the area is
small.
For these reasons, EPA believes it is appropriate to continue
ambient monitoring in place of a 30-year life-of-mine study, provided
there are no violations of the PM10 NAAQS. The ambient monitoring
network proposed by DEQ, and submitted to EPA in June, 1992, remains in
effect. If a PM10 exceedence is monitored, then one of the
following two procedures would become effective:
a. In the event of an exceedence of the PM10 NAAQS or
Prevention of Significant Deterioration (PSD) increment in the Powder
River Basin, the State expeditiously uses all necessary compliance
tools, including enforcement of BAWP requirements in the State permits,
to eliminate the likelihood of future exceedences of the PM10
NAAQS or PSD increment caused by the contributing source(s).
b. If, in the opinion of EPA, the State does not initiate timely
and appropriate action to address these exceedences, or if timely State
action does not effectively resolve the issue of exceedences (i.e., a
violation of the PM10 NAAQS occurs following the timely and
successful completion of any corrective action required by the State),
EPA will reevaluate the need for the State to implement a 30-year life-
of-mine study.
2. Conditions Agreed to in the MOA by the State of Wyoming
By signing the MOA, the State of Wyoming agreed to:
a. Conduct ambient air monitoring, including overseeing the mines'
ambient monitoring networks, entering the data into the Aerometric
Information and Retrieval System (AIRS) database, ensuring attainment
of the primary and secondary NAAQS for PM10 based upon 40 CFR
50.6, requiring the minimum frequency of sampling for PM10 based
on 40 CFR 58.13, and basing violations upon the calculation in 40 CFR
part 50, appendix K.
b. Provide EPA with a summary of BAWP for each mine, verification
that the mines are employing BAWP, and a copy of the Wyoming State
regulation which provides the State with the authority to enforce BAWP.
On December 2, 1993 the State of Wyoming, DEQ, submitted copies of
the regulations requested: the authority to require and enforce BAWP by
State regulation is contained in Sec. 35-11-801(a) of the Wyoming
Statutes Ann. (W.S.A.) Section 21(c)(v) of the WAQSR addresses Best
Available Control Technology measures for mining operations.
c. Provide EPA with a written opinion from the State's Attorney
General that the State has the authority to take enforcement action
against mines based upon violations of the PM10 NAAQS. A letter
from the Wyoming Attorney General's office set forth the enforcement
authority of the State of Wyoming, as required by the MOA. The letter
referred to the general enforcement provision of the state statute
Sec. 35-11-201, W.S.A., and to section 3(a) of the WAQSR, which
establishes the ambient standards for particulate matter and includes
the calculation used for demonstration of attainment from 40 CFR Part
50, Appendix K. The submittal also included a reference to Sec. 35-11-
701, W.S.A., which allows the Director of DEQ to issue a Notice of
Violation; a reference to W.S. Sec. 35-11-901(a) which provides for
civil penalties and injunctive relief against ``any person who violates
. . . any regulation [or] standard;'' and reference to Sec. 35-11-
901(j), W.S.A., which discusses criminal penalties.
3. PSD Increments
The issue of particulate matter increment consumption has been
temporarily resolved by the establishment of a new Powder River Basin
Section 107 baseline area. This designation effectively ``untriggers''
the minor source baseline date in the Powder River Basin 107 area, and
thus, emissions from coal mines and other minor sources are no longer
consuming particulate matter increment. Dispersion modeling of coal
mines for tracking PSD increment may be required at some time in the
future, if a new or modified major stationary source again triggers the
minor source baseline date in the Powder River Basin, or by January 1,
1996 (as provided by the State's definition of ``minor source baseline
date''), whichever comes first.
C. Response To Comments
The public was given 30 days to comment on the August 26, 1992
proposed rule. Comments were received from the State of Wyoming and the
Wyoming Mining Association. The original written comments can be found
in the docket to this action. EPA's responses to the relevant comments
are found below.
Comment 1: The State expressed its concern with the ambiguity of
the term ``initial final `ambient air' SIP action'' found in the final
activity of the Section C--EPA Action, pg. 38649--Table summarizing
proposed conditions of approval and milestones.
Response: EPA reviewed the State's concern and agrees with the
ambiguity. However, since, as explained this notice, EPA is no longer
requiring the 30-year life-of-mine modeling study, the ambiguity in the
summary table has been resolved.
Comment 2: The Wyoming Mining Association expressed its concern
that the improvements to the monitoring network for the PRB would be
installed without recognizing the physical surface constraints of the
terrain.
Response: Following discussions between the EPA and the State of
Wyoming's Department of Environmental Quality relating to monitoring in
the PRB, the State proposed revisions to the PRB monitoring network.
The monitoring changes, agreed to by EPA, consider surface limitations.
Additionally, the State has agreed to notify Region VIII when siting a
monitor.
Comment 3: The Wyoming Mining Association argued that EPA should
drop the requirement that ``Wyoming perform a 30-year modeling study--
based upon long term models and contingent upon the development of
accurate emission factors--after the issuance of EPA procedures and
discussions on such procedures in order to demonstrate attainment of
the PM-10 NAAQS or, if applicable, PSD increments, over the permitted
life of the surface coal mines in the PRB.''
Response: EPA has responded to this comment, as discussed above in
Section B: Memorandum of Agreement.
I. Proposed Action
The purpose of this action is to repropose approval of the State's
revision to Section 3, Particulates, of the WASQR. Subsequent to the
original proposal of August 26, 1992, EPA has re-evaluated and modified
the basis for its proposed approval of the State's SIP submittal.
Additional information can be found in the August 26, 1992 Federal
Register Notice and the corresponding technical support document, and
also in the January 1994 MOA between EPA and DEQ.
The Agency has reviewed this request for revision of the Federally
approved SIP for conformance with the provisions of the Amendments
enacted on November 15, 1990, and has determined that this action
conforms with those requirements.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any State implementation plan. Each request for revision to
any State implementation plan shall be considered separately in light
of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
II. Executive Order (EO) 12866
This action has been classified as a Table 2 action by the Regional
Administrator under the procedures published in the Federal Register on
January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993,
memorandum from Michael Shapiro, Acting Assistant Administrator for Air
and Radiation. A future notice will inform the general public of these
tables. On January 6, 1989, the Office of Management and Budget (OMB)
waived Table 2 and Table 3 SIP revisions from the requirement of
section 3 of Executive Order 12291 for a period of two years. The U.S.
EPA has submitted a request for a permanent waiver for Table 2 and
Table 3 SIP revisions. The OMB has agreed to continue the waiver until
such a time as it rules on U.S. EPA's request. This request continues
in effect under Executive Order 12866 which superseded Executive Order
12291 on September 30, 1993. OMB has exempted this regulatory action
from E.O. 12866 review.
III. Regulatory Flexibility
Under the Regulatory Flexibility Act, 5 U.S.C. Section 600 et seq.,
EPA must prepare a regulatory flexibility analysis addressing the
impact of any proposed or final rule on small entities. 5 U.S.C.
sections 603 and 604. Alternatively EPA may certify that the rule will
not have a significant economic impact on a substantial number of small
entities. Small entities include small businesses, small not-for-profit
enterprises, and government entities with jurisdiction over population
of less than 50,000.
SIP approvals under section 110 and subchapter I, Part D of the
Clean Air Act do not create any new requirements, but simply approve
requirements that the State is already imposing. Therefore, because the
Federal SIP-approval does not impose any new requirements, I certify
that it does not have a significant impact on small entities affected.
Moreover, due to the nature of the Federal-State relationship under the
Act, preparation of a regulatory flexibility analysis would constitute
federal inquiry into the economic reasonableness of State action. The
Clean Air Act forbids EPA to base its action concerning SIP's on such
grounds. Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct.
1976); 42 U.S.C. 7410(a)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernment
relations, Particulate matter, Reporting and recordkeeping
requirements.
Authority: 42 U.S.C. 7401-7671q.
Dated: June 1, 1994.
Nola Y. Cooke,
Acting Regional Administrator.
[FR Doc. 94-15311 Filed 6-22-94; 8:45 am]
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