Federal Register / Vol. 76, No. 74 / Monday, April 18, 2011 / Rules and Regulations 21639 

temporary safety zone. An 

environmental analysis checklist and a 

categorical exclusion determination will 

be available in the docket where 

indicated under ADDRESSES. 

List of Subjects in 33 CFR Part 165 

Harbors, Marine Safety, Navigation 

(water), Reporting and recordkeeping 

requirements, Security measures, 

Waterways. 

For the reasons discussed in the 

preamble, the Coast Guard amends 33 

CFR Part 165 as follows: 

PART 165—REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

■ 1. The authority citation for part 165 

continues to read as follows: 

Authority: 33 U.S.C. 1231; 46 U.S.C. 

Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 

33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; 

Pub. L. 107–295, 116 Stat. 2064; Department 

of Homeland Security Delegation No. 0170.1. 

■ 2. Add section § 165.T09–0165 to read 

as follows: 

§ 165.T09–0165 Safety zone; Ford Estate 

Wedding Fireworks, Lake St. Clair, Grosse 

Pointe Shores, MI. 

(a) Location. The safety zone will 

encompass all U.S. navigable waters on 

Lake St. Clair within a 420 foot radius 

of the fireworks barge launch site 

located off the shore of Grosse Pointe 

Shores, MI at position 42°27′15.06′′ N., 

082°51′59.01′′ W. All geographic 

coordinates are North American Datum 

of 1983 (NAD 83). 

(b) Effective and Enforcement Period. 

This rule is effective and will be 

enforced from 8:30 p.m. (local) through 

9:30 p.m. on June 4, 2011. 

(c) Regulations. (1) In accordance with 

the general regulations in Section 

165.23 of this part, entry into, transiting, 

or anchoring within this safety zone is 

prohibited unless authorized by the 

Captain of the Port Detroit, or his 

designated on-scene representative. 

(2) This safety zone is closed to all 

vessel traffic, except as may be 

permitted by the Captain of the Port 

Detroit or his designated on-scene 

representative. 

(3) The ‘‘on-scene representative’’ of 

the Captain of the Port is any Coast 

Guard commissioned, warrant, or petty 

officer who has been designated by the 

Captain of the Port to act on his behalf. 

The on-scene representative of the 

Captain of the Port will be aboard either 

a Coast Guard or Coast Guard Auxiliary 

vessel. The Captain of the Port or his 

designated on scene representative may 

be contacted via VHF Channel 16. 

(4) Vessel operators desiring to enter 

or operate within the safety zone shall 

contact the Captain of the Port Detroit 

or his on-scene representative to obtain 

permission to do so. 

(5) Vessel operators given permission 

to enter or operate in the safety zone 

must comply with all directions given to 

them by the Captain of the Port or his 

on-scene representative. 

Dated: April 5, 2011. 

J.E. Ogden, 

Captain, U.S. Coast Guard, Captain of the 

Port Detroit. 

[FR Doc. 2011–9256 Filed 4–15–11; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2010–0909; FRL–9294–9] 

Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah 

State Implementation Plan Revision 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: Pursuant to sections 

110(a)(2)(H) and 110(k)(5) of the Clean 

Air Act (CAA), EPA is finding that the 

Utah State Implementation Plan (SIP) is 

substantially inadequate to attain or 

maintain the national ambient air 

quality standards (NAAQS) or to 

otherwise comply with the requirements 

of the CAA and issuing a call for the 

State of Utah to revise its SIP. 

Specifically, the SIP includes Utah’s 

unavoidable breakdown rule (rule 

R307–107), which exempts emissions 

during unavoidable breakdowns from 

compliance with emission limitations. 

This rule undermines EPA’s, Utah’s, 

and citizens’ ability to enforce emission 

limitations that have been relied on to 

ensure attainment or maintenance of the 

NAAQS or meet other CAA 

requirements. EPA is requiring that the 

State revise the SIP to remove R307–107 

or correct its deficiencies and submit 

the revised SIP to EPA within 18 

months of the effective date of this final 

rule. If EPA finds that Utah has failed 

to submit a complete SIP revision as 

required by this final rule or if EPA 

disapproves such a revision, such a 

finding or disapproval will trigger 

clocks for mandatory sanctions and an 

obligation for EPA to impose a Federal 

Implementation Plan (FIP). If EPA 

makes such a finding or disapproval, 

mandatory sanctions will apply such 

that the offset sanction would apply 18 

months after such finding or 

disapproval and highway funding 

restrictions would apply six months 

later unless EPA takes action to stay the 

imposition of the sanctions or to stop 

the sanctions clock based on the State 

curing the SIP deficiencies. 

In its proposed rulemaking action, 

EPA requested comment on whether it 

should exercise its discretionary 

authority under CAA section 110(m) to 

impose the highway funding restrictions 

sanctions in areas of the State that 

would not be subject to mandatory 

sanctions. EPA is deferring a decision 

on whether to impose sanctions under 

section 110(m) and will consider any 

comments on the issue of imposing 

sanctions under section 110(m) if and 

when we take final action on this issue 

in the future. 

DATES: Effective Date: This final rule is 

effective May 18, 2011. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R08–OAR–2010–0909. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

http://www.regulations.gov, or in hard 

copy at the Air Program, Environmental 

Protection Agency (EPA), Region 8, 

1595 Wynkoop Street, Denver, Colorado 

80202–1129. EPA requests that if at all 

possible, you contact the individual 

listed in the FOR FURTHER INFORMATION

CONTACT section to view the hard copy 

of the docket. You may view the hard 

copy of the docket Monday through 

Friday, 8 a.m. to 4 p.m., excluding 

Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Vanessa Hinkle, Air Program, Mailcode 

8P–AR, Environmental Protection 

Agency, Region 8, 1595 Wynkoop 

Street, Denver, Colorado 80202–1129, 

(303) 312–6561, or 

hinkle.vanessa@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Definitions 

For the purpose of this document, the 

following definitions apply: 

(i) The words or initials Act or CAA 

mean or refer to the Clean Air Act, 

unless the context indicates otherwise. 

(ii) The words EPA, we, us or our 

mean or refer to the United States 

Environmental Protection Agency. 


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21640 Federal Register / Vol. 76, No. 74 / Monday, April 18, 2011 / Rules and Regulations 

1Our proposal provided detailed background 

information regarding EPA’s CAA interpretations 

with respect to SIP malfunction provisions, the 

history of Utah rule R307–107 and relevant SIP 

actions, and our interactions with the State and 

others regarding the rule over the years. See 75 FR 

70889–891. We direct the reader there for such 

background information. 

2We provide a summary of the bases for our 

finding of substantial inadequacy in Section III of 

this action, ‘‘Summary of Bases for Finding of 

Substantial Inadequacy.’’ 

(iii) The initials NAAQS mean or refer 

to National Ambient Air Quality 

Standards. 

(iv) The initials NOX mean or refer to 

nitrogen oxides. 

(v) The initials PM2.5 mean or refer to 

particulate matter with an aerodynamic 

diameter less than or equal to a nominal 

2.5 micrometers. 

(vi) The initials PM10 mean or refer to 

particulate matter with an aerodynamic 

diameter less than or equal to a nominal 

10 micrometers. 

(vii) The initials ppm mean or refer to 

parts per million. 

(viii) The initials SIP mean or refer to 

State Implementation Plan. 

(ix) The initials SO2 mean or refer to 

sulfur dioxide. 

(x) The initials SSM mean or refer to 

startup, shutdown, and malfunction. 

(xi) The words State or Utah mean the 

State of Utah, unless the context 

indicates otherwise. 

(xii) The initials UBR mean or refer to 

the Utah unavoidable breakdown rule, 

R307–107. 

(xiii) The initials UDAQ mean or refer 

to the Utah Division of Air Quality, 

Utah Department of Environmental 

Quality. 

(xiv) The words 1982 Policy mean or 

refer to the September 28, 1982 EPA 

Memorandum signed by Kathleen M. 

Bennett, Assistant Administrator for 

Air, Noise and Radiation, titled ‘‘Policy 

on Excess Emissions During Startup, 

Shutdown, Maintenance, and 

Malfunctions.’’ 

(xv) The words 1983 Policy mean or 

refer to the February 15, 1983 EPA 

Memorandum signed by Kathleen M. 

Bennett, Assistant Administrator for 

Air, Noise and Radiation, titled ‘‘Policy 

on Excess Emissions During Startup, 

Shutdown, Maintenance, and 

Malfunctions.’’ 

(xvi) The words 1999 Policy mean or 

refer to the September 20, 1999 EPA 

Memorandum signed by Steven A. 

Herman, Assistant Administrator for 

Enforcement and Compliance 

Assurance, and Robert Perciasepe, 

Assistant Administrator for Air and 

Radiation, titled ‘‘State Implementation 

Plans: Policy Regarding Excess 

Emissions During Malfunctions, 

Startup, and Shutdown.’’ 

Table of Contents 

I. Background 

II. Final Action 

III. Summary of Bases for Finding of 

Substantial Inadequacy 

IV. Issues Raised by Commenters and EPA’s 

Responses 

A. Request for Comment Period Extension/ 

Procedural Issues 

B. Authority and Basis for a SIP Call 

C. Sanctions 

D. Time Period for Response to SIP Call 

E. Miscellaneous Comments 

V. Statutory and Executive Order Reviews 

I. Background 

On November 19, 2010, we published 

our proposed rulemaking action in the 

Federal Register (75 FR 70888) in which 

we proposed to find the Utah SIP 

substantially inadequate to attain or 

maintain the NAAQS or to otherwise 

comply with the requirements of the 

CAA.1 We also proposed to issue a SIP 

call to require the State of Utah to revise 

the SIP to correct the inadequacies. In 

our proposal, we stated that, ‘‘Utah rule 

R307–107 contains various provisions 

that are inconsistent with EPA’s 

interpretations regarding the 

appropriate treatment of malfunction 

events in SIPs and which render the 

Utah SIP substantially inadequate.’’ Id. 

at 70891. We went on to identify 

specific deficiencies in R307–107 (also 

known as Utah’s unavoidable 

breakdown rule and sometimes referred 

to herein as the UBR). Id. at 70891– 

70893. In particular, we explained that 

the UBR: (1) Does not treat all 

exceedances of SIP and permit limits as 

violations; (2) could be interpreted to 

grant the Utah executive secretary 

exclusive authority to decide whether 

excess emissions constitute a violation; 

and (3) improperly applies to Federal 

technology-based standards such as 

New Source Performance Standards 

(NSPS) and National Emission 

Standards for Hazardous Air Pollutants 

(NESHAPS). We explained why we 

were proposing to find that these 

deficiencies in the UBR render the Utah 

SIP substantially inadequate. Id. We 

proposed a 12-month deadline for the 

State to respond to a final SIP call. 

We also proposed the order and 

timing of mandatory sanctions under 

CAA section 179(a) and requested 

comment on whether we should 

exercise our discretionary authority to 

impose highway funding sanctions in 

all areas of the State. 

We requested comments on all 

aspects of our proposed action by 

December 20, 2010. We subsequently 

extended the public comment period 

through January 3, 2011. See 75 FR 

79327 (December 20, 2010). 

We received numerous comments. A 

number of commenters, particularly 

citizens and environmental groups, 

supported our proposed action. We also 

received a number of comments, 

primarily from State agencies and 

industrial facilities and groups, that 

were critical of our proposed action. 

II. Final Action 

We have considered all comments 

submitted and prepared responses, 

which are contained in Section IV of 

this action, ‘‘Issues Raised by 

Commenters and EPA’s Responses.’’ 

None of the comments has caused us to 

conclude that our proposal was 

unreasonable, and we are finalizing our 

action as proposed, with the exception 

that we are requiring that the State 

respond to the SIP call within 18 

months rather than 12 months. 

Specifically, for the reasons described in 

our notice of proposed rulemaking (see 

75 FR 70888) and in this action, EPA 

finds that the Utah SIP is substantially 

inadequate to attain or maintain the 

NAAQS or to otherwise comply with 

requirements of the CAA due to 

significant deficiencies created by 

Utah’s unavoidable breakdown rule, 

R307–107.2 Utah’s rule R307–107 

improperly undermines EPA’s, Utah’s, 

and citizens’ ability to enforce emission 

limitations that have been relied on in 

the SIP to ensure attainment and 

maintenance of the NAAQS or meet 

other CAA requirements. Pursuant to 

sections 110(a)(2)(H) and 110(k)(5) of 

the CAA, EPA is requiring that the State 

revise the SIP to remove R307–107 or 

revise it to make it consistent with CAA 

requirements. Utah must submit a 

revised SIP responding to this SIP call 

within 18 months of the effective date 

of this final rule. 

If Utah fails to submit a complete SIP 

revision that responds to this final SIP 

call, section 179(a) of the CAA provides 

for EPA to issue a finding of State 

failure. Such a finding will start 

mandatory 18-month and 24-month 

sanctions clocks and a 24-month clock 

for promulgation of a FIP by EPA. The 

two sanctions that apply under CAA 

section 179(b) are the 2-to-1 emission 

offset requirement for all new and 

modified major sources subject to the 

nonattainment new source review (NSR) 

program and restrictions on highway 

funding. 

EPA issued an order of sanctions rule 

in 1994 (see 59 FR 39832 (August 4, 

1994), codified at 40 CFR 52.31) but did 

not specify the order of sanctions where 

a State fails to submit or submits a 

deficient SIP in response to a SIP call. 

However, as we proposed (75 FR 70893– 


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Federal Register / Vol. 76, No. 74 / Monday, April 18, 2011 / Rules and Regulations 21641 

3An exception to this, not relevant here, is areas 

located in the Ozone Transport Region, which are 

required to have a part D NSR program regardless 

of the area’s designation. See CAA section 184(b)(2). 

4As we explain in our response to comments, the 

UBR lacks criteria that are sufficiently detailed or 

robust to ensure that penalties are available at all 

appropriate times. 

70894), we have decided that the order 

of sanctions specified in 40 CFR 52.31 

will apply here for the same reasons 

discussed in the preamble to that rule. 

Thus, if Utah fails to submit the 

required SIP revision, or submits a 

revision that EPA determines is 

incomplete or that EPA disapproves, the 

2-to-1 emission offset requirement will 

apply for all new sources subject to the 

nonattainment NSR program 18 months 

following such a finding or disapproval 

unless the State corrects the deficiency 

before that date. The highway funding 

restrictions sanction will also apply six 

months after the offset sanction applies 

unless the State corrects the deficiency 

before that date. The provisions in 40 

CFR 52.31 regarding staying the 

sanctions clock and deferring the 

imposition of sanctions will also apply. 

Mandatory sanctions under section 

179 of the CAA generally apply only in 

nonattainment areas. By its definition, 

the emission offset sanction applies 

only in areas required to have a part D 

NSR program, typically areas designated 

nonattainment.3 Section 179(b)(1) 

expressly limits the highway funding 

restriction to nonattainment areas. 

Additionally, EPA interprets the section 

179 sanctions to apply only in the area 

or areas of the State that are subject to 

or required to have in place the 

deficient SIP and for the pollutant or 

pollutants the specific SIP element 

addresses. In this case, mandatory 

sanctions would apply in all areas 

designated nonattainment for a NAAQS 

within the State because Utah rule 

R307–107 applies statewide and applies 

for all NAAQS pollutants. 

In addition to sanctions, if EPA finds 

that the State failed to submit a 

complete SIP revision that responds to 

this SIP call or disapproves such 

revision, CAA section 110(c) would 

require EPA to promulgate a FIP no later 

than two years from the date of the 

finding or the disapproval if the 

deficiency has not been corrected. 

In its proposed rulemaking action (75 

FR 70893–70894), EPA also requested 

comment on whether it should exercise 

its discretionary authority under CAA 

section 110(m) to impose the highway 

funding restrictions sanction in areas of 

the State that would not be subject to 

mandatory sanctions—i.e., areas other 

than nonattainment areas. EPA is not 

finalizing action on the use of such 

discretionary authority in this action. If 

EPA acts on the use of discretionary 

sanctions at a later date, it will fully 

respond to relevant comments 

submitted in response to the November 

19, 2010 notice of proposed rulemaking. 

III. Summary of Bases for Finding of 

Substantial Inadequacy 

This section provides a brief summary 

of the bases for our finding of 

substantial inadequacy. For further 

detail, please refer to our notice of 

proposed rulemaking (75 FR 70888) and 

our response to comments. 

1. R307–107–1 provides an exemption 

from emission limits in the Utah SIP 

and SIP-based permits for exceedances 

of such limits caused by an unavoidable 

breakdown—‘‘emissions resulting from 

unavoidable breakdown will not be 

deemed a violation of these regulations.’’ 

This generic exemption, applicable to 

all Utah SIP limits, precludes any 

enforcement when there is an 

unavoidable breakdown. Our 

interpretation of the CAA is that an 

exemption from injunctive relief is 

never appropriate, and that an 

exemption from penalties is only 

appropriate in limited circumstances.4

Contrary to CAA section 302(k)’s 

definition of emission limitation, the 

exemption in the UBR renders emission 

limitations in the Utah SIP less than 

continuous and, contrary to the 

requirements of CAA sections 

110(a)(2)(A) and (C), undermines the 

ability to ensure compliance with SIP 

emissions limitations relied on to 

achieve the NAAQS and other relevant 

CAA requirements at all times. 

Therefore, the UBR renders the Utah SIP 

substantially inadequate to attain or 

maintain the NAAQS or to comply with 

other CAA requirements, such as CAA 

sections 110(a)(2)(A) and (C) and 302(k), 

CAA provisions related to prevention of 

significant deterioration (PSD) and 

nonattainment NSR permits (sections 

165 and 173), and provisions related to 

protection of visibility (section 169A). 

2. R307–107–1 also applies to Federal 

technology-based standards like the 

NSPS and NESHAPS that Utah has 

incorporated by reference to receive 

delegation of Federal authority. To the 

extent any exemptions from these 

technology-based standards are 

warranted for malfunctions, the Federal 

standards contained in EPA’s 

regulations already specify the 

appropriate exemptions. No additional 

exemptions (or criteria for deciding 

whether an applicable exemption 

applies) are warranted or appropriate. 

Thus, the Utah SIP is substantially 

inadequate because R307–107–1 

improperly provides an exemption and 

criteria not contained in and not 

sanctioned by the delegated Federal 

standards. 

3. R307–107–2 requires the source to 

submit information regarding an 

unavoidable breakdown to the executive 

secretary of Utah’s Air Quality Board 

(UAQB) and indicates that the 

information ‘‘shall be used by the 

executive secretary of the UAQB in 

determining whether a violation has 

occurred and/or the need of further 

enforcement action.’’ This provision 

appears to give the executive secretary 

exclusive authority to determine 

whether excess emissions constitute a 

violation and thus to preclude 

independent enforcement action by EPA 

and citizens when the executive 

secretary makes a non-violation 

determination. This is inconsistent with 

the enforcement structure under the 

CAA, which provides enforcement 

authority not only to the States, but also 

to EPA and citizens. Because a court 

could interpret section R307–107–2 as 

undermining the ability of EPA and 

citizens to independently exercise 

enforcement discretion granted by the 

CAA, it is substantially inadequate to 

comply with CAA requirements related 

to enforcement. Because it undermines 

the envisioned enforcement structure, it 

also undermines the ability of the State 

to attain and maintain the NAAQS and 

to comply with other CAA requirements 

related to PSD, visibility, NSPS, and 

NESHAPS. Potential EPA and citizen 

enforcement provides an important 

safeguard in the event a State cannot or 

does not enforce CAA violations and 

also provides additional incentives for 

sources to design, operate, and maintain 

their facilities so as to meet their 

emission limits. Thus, R307–107–2 

renders the SIP substantially inadequate 

to attain or maintain the NAAQS or 

otherwise comply with the CAA. 

IV. Issues Raised by Commenters and 

EPA’s Response 

A. Request for Comment Period 

Extension/Procedural Issues 

(a) Comment: Two comment letters 

requested an extension of the comment 

period of up to 60 days. Other 

commenters did not specifically request 

an extension, but stated that they 

believed the comment period was too 

short. Some commenters complained 

that the proposal was issued without 

stakeholder input. 

Response: We considered the requests 

for an extension of the comment period 

and extended the original 30-day public 

comment period from December 20, 


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21642 Federal Register / Vol. 76, No. 74 / Monday, April 18, 2011 / Rules and Regulations 

2010 to January 3, 2011 (see 75 FR 

79327 (December 20, 2010)), providing 

a total of 45 days to submit comments. 

The comment period was sufficient to 

provide a reasonable opportunity to 

comment on our proposed action given 

its scope. We note that section 307(h) of 

the CAA specifies a 30-day period as a 

minimum comment period for 

rulemaking actions under the CAA, 

except for certain specified provisions 

(all of which waive notice-and-comment 

rulemaking requirements). We typically 

provide a 30-day comment period for 

SIP-related actions. Neither the CAA nor 

the Administrative Procedure Act 

requires a stakeholder process before or 

during rulemaking to issue a SIP call. 

(b) Comment: A commenter asserts 

that EPA’s notice is defective because it 

fails to provide interested parties with 

sufficient notice of facts, policies and 

case law relevant to the proposed 

finding. Interested parties cannot 

understand the bases for EPA’s 

proposed rule and thus cannot 

participate and comment in a 

meaningful way. EPA needs to correct 

the deficiencies in the notice and repropose. 

Response: As described more fully 

elsewhere in our response to comments, 

we explained the bases for our finding 

of substantial inadequacy and SIP call 

in our proposed rulemaking action. See 

75 FR 70891–70893. 

(c) Comment: A commenter asserts 

that it cannot provide meaningful 

comments and analysis of the proposed 

rule because EPA has not responded to 

the commenter’s appeal seeking 

documents under the Freedom of 

Information Act (FOIA). 

Response: We disagree that our 

actions under the FOIA are relevant to 

the validity of our rulemaking action. In 

this case, we clearly explained the bases 

for our proposed action, and made 

available in our rulemaking docket all 

documents we considered in issuing the 

proposal. The commenter had the same 

reasonable opportunity to comment on 

our proposal as any other commenter 

and provided substantive comments. 

We note that we responded to the 

commenter’s FOIA request on June 7, 

2010, providing three compact discs 

containing over 1,000 pages of 

documents. We only withheld 

documents we determined were 

privileged (and thus exempt from 

disclosure). 

B. Authority and Basis for a SIP Call 

(a) Comment: The proposal is 

inconsistent with section 110 of the 

CAA. Commenters assert that EPA’s 

authority to issue a SIP call under CAA 

section 110(k)(5) is limited to if the 

Administrator finds the applicable 

implementation plan for an area is 

substantially inadequate to attain or 

maintain the relevant NAAQS or to 

otherwise comply with any requirement 

of that chapter. Commenters assert that 

EPA has made no showing or disclosure 

of relevant facts that the UBR is 

substantially inadequate to protect the 

NAAQS with respect to CAA sections 

110(a)(2)(H) and 110(k)(5). Commenters 

state that the finding of substantial 

inadequacy must be clearly stated and 

that the Administrative Record must 

present facts which support the SIP call. 

Commenters state that EPA’s docket did 

not identify any measured or modeled 

impact on attainment or maintenance of 

a NAAQS due to excess emissions 

resulting from an unavoidable 

breakdown. Further, EPA did not 

provide any empirical information to 

support its reasoning as to why the rule 

is not working. 

Response: The SIP call is consistent 

with CAA sections 110(a)(2)(H) and 

110(k)(5). We proposed to find the UBR 

substantially inadequate in our NPR and 

are finalizing that determination here. 

We explained the bases for our 

proposed finding. See 75 FR 70891– 

70893. As we indicated in our proposal, 

SIPs, including the Utah SIP, rely on 

adoption and enforcement of emission 

limits to attain and maintain the 

NAAQS, protect PSD increments, 

protect visibility in national parks and 

wilderness areas, and meet other CAA 

requirements. See 75 FR 70891. The 

integrity of the SIP is maintained and 

protection is ensured as long as the 

limits are met. Consistent with this 

premise, the CAA and our regulations 

require that SIP limits be enforceable. 

For example, as noted in our proposal 

(see 75 FR 70892), CAA section 

110(a)(2)(A) requires each SIP to include 

enforceable emission limitations 

necessary or appropriate to meet the 

CAA’s applicable requirements. CAA 

section 110(a)(2)(C) requires that each 

SIP include a program to ‘‘provide for 

the enforcement of the measures’’ 

described in section 110(a)(2)(A). 

Section 302(k) defines emission 

limitation as a requirement established 

by a State or EPA that ‘‘limits the 

quantity, rate, or concentration of 

emissions of air pollutants on a 

continuous basis.’’ These requirements 

are intended to ensure attainment and 

maintenance of the NAAQS, protection 

of increments, and protection of 

visibility at all times, not just 

occasionally or intermittently. The 

enforceability of the SIP is fundamental 

to the SIP’s adequacy under the CAA. 

The UBR provides an exemption from 

emission limits in the Utah SIP (and 

permits) for excess emissions caused by 

an unavoidable breakdown—‘‘emissions 

resulting from unavoidable breakdown 

will not be deemed a violation of these 

regulations.’’ See R307–107–1. Our 

longstanding view is that all 

exceedances are violations and must be 

treated as such by the SIP. See, e.g., our 

1982, 1983, and 1999 Policies; 42 FR 

58171 (November 8, 1977). This 

treatment is necessary because it 

encourages sources to act responsibly in 

taking necessary measures to ensure 

compliance with emissions limits, 

preserves the potential for injunctive 

relief, preserves the potential for 

penalties, except in limited 

circumstances, and is consistent with 

the notion that protection of health 

under the CAA is not a sometime 

requirement. It is also consistent with 

CAA 302(k)’s definition of emission 

limitation as a requirement limiting 

emissions on a continuous basis. The 

UBR precludes any enforcement when 

there is an unavoidable breakdown. It 

thus renders emission limitations in the 

Utah SIP less than continuous and, 

contrary to the requirements of sections 

110(a)(2)(A) and (C), undermines the 

ability to ensure compliance with 

emissions limitations and the NAAQS 

and other relevant CAA requirements at 

all times. Therefore, the UBR renders 

the Utah SIP substantially inadequate to 

attain or maintain the NAAQS or to 

comply with other CAA requirements. 

We also explained in our proposal 

that R307–107–2 appears to give the 

executive secretary of the UAQB 

exclusive authority to determine 

whether excess emissions have been 

caused by an unavoidable breakdown 

and, thus, whether they constitute a 

violation. R307–107–2 provides that 

information submitted by a source ‘‘shall 

be used by the executive secretary in 

determining whether a violation has 

occurred and/or the need of further 

enforcement action.’’ We explained that 

this provision is inconsistent with the 

enforcement structure of the CAA, 

which provides independent authority 

to EPA and citizens to enforce SIP and 

other CAA emission limits. See 75 FR 

70892. We concluded that, because a 

court could interpret R307–107–2 as 

undermining the ability of EPA and 

citizens to independently exercise 

enforcement discretion granted by the 

CAA, it is inconsistent with CAA 

requirements related to enforcement 

and, thus, renders the SIP substantially 

inadequate. Preclusion of EPA and 

citizen enforcement could make it 

impossible to penalize source 

noncompliance (where the State may 

have erroneously concluded that 


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Federal Register / Vol. 76, No. 74 / Monday, April 18, 2011 / Rules and Regulations 21643 

5EPA has previously issued SIP calls to correct 

deficiencies related to SIP enforceability. For 

example, EPA issued SIP calls in the 1990s to 

require States to revise their SIPs to allow for use 

of any credible evidence in enforcement actions 

with respect to SIP emissions limits. See 62 FR 

8314, 8327 (February 24, 1997). 

6 In 2005, the State submitted a maintenance plan 

for PM10 for Salt Lake County. The State’s 

dispersion modeling, which we proposed to 

disapprove because of flaws, projected values very 

close to the 150 μg/m3 24-hour NAAQS at the North 

Salt Lake monitor. If the State had used 

assumptions we had proposed, the projected values 

would have been higher. Malfunction emissions are 

of particular concern where modeling predicts 

values just under the NAAQS. 7 In its 2005 SIP submittal for PM10, the State 

proposed a combined SO2 emission limit for Holly, 

which included all external combustion process 

equipment and all gas-fired compressor drivers, of 

4.7 tons per day. 

8Some NSPS do not provide any relief during 

SSM. For example, the SO2 and NOX limits under 

part 60, subpart Db, apply at all times. See 40 CFR 

60.45b(a) and 60.46b(a). 

9As EPA noted in the 1999 Policy, ‘‘to the extent 

a state includes NSPS or NESHAPS in its SIP, the 

standards should not deviate from those that were 

federally promulgated. Because EPA set these 

standards taking into account technological 

limitations, additional exemptions would be 

inappropriate.’’ 

exceedances were caused by an 

unavoidable breakdown) or gain source 

compliance through injunctive relief. 

Also, potential preclusion of EPA and 

citizen enforcement reduces the 

incentive for sources to comply because 

it reduces the likelihood of independent 

evaluation of unavoidable breakdown 

claims by a court in an enforcement 

action brought by EPA or citizens. 

The thrust of several comments is that 

we have not presented facts or empirical 

evidence that the UBR is not working or 

that shows any measured or modeled 

impact on attainment or maintenance of 

a NAAQS due to excess emissions 

resulting from an unavoidable 

breakdown. As we indicated in our 

proposal (see 75 FR 70892), we need not 

show a direct causal link between any 

specific unavoidable breakdown excess 

emissions and violations of the NAAQS 

to conclude that the SIP is substantially 

inadequate. It is our interpretation that 

the fundamental integrity of the CAA’s 

SIP process and structure is undermined 

if emission limits relied on to meet CAA 

requirements can be exceeded without 

potential recourse by any entity granted 

enforcement authority by the CAA. We 

are not restricted to issuing SIP calls 

only after a violation of the NAAQS has 

occurred or only where a specific 

violation can be linked to a specific 

excess emissions event. It is sufficient 

that emissions limits to which the 

unavoidable breakdown exemption 

applies have been, are being, and will be 

relied on to attain and maintain the 

NAAQS and meet other CAA 

requirements. Nor are we required to 

wait for a judge to rule in a specific 

enforcement action that R307–107–2 has 

a preclusive effect on EPA or citizen 

enforcement to determine that the 

provision is inconsistent with the CAA 

and renders the SIP substantially 

inadequate.5

Nonetheless, we note the following: 

1. Several counties along the Wasatch 

Front in Utah (which includes the 

largest population centers in the State) 

are designated nonattainment for PM10, 

PM2.5, and SO2, and some have recorded 

violations of the 2008 0.075 ppm ozone 

NAAQS as well. The Wasatch Front is 

subject to severe wintertime inversions, 

and several commenters noted that Salt 

Lake County has at times experienced 

some of the worst air quality in the 

country. Exceedances of emission 

limitations due to unavoidable 

breakdowns increase pollutant levels in 

the air in these nonattainment areas, 

exacerbating pollution there.6

2. Our experience related to refineries, 

power plants, and other sources 

indicates that potential emissions 

during malfunctions when normal 

processes or pollution controls are 

bypassed can be very high, far 

exceeding SIP limits. For example, data 

submitted by Holly Refining (Holly) in 

Woods Cross, Utah, to the State of Utah 

indicate that Holly flared nearly 11,000 

pounds of SO2 in a 9-hour period during 

a claimed breakdown event in June 2006 

and thousands of pounds during other 

claimed breakdown events of varying 

duration (some on the order of one 

hour) between 2006 and 2010. By way 

of comparison, the January 12, 2010 

permit limit for Holly’s SRU tail gas 

incinerator is 1.6 tons (3,200 pounds) of 

SO2 per day.7 During malfunctions, 

refineries in the Billings, Montana, area 

sometimes flared thousands of pounds 

of SO2 over a two- or three-hour period, 

whereas the State had modeled 

attainment of the 3-hour SO2 NAAQS 

based on a routine flare emissions limit 

of 150 pounds per three hours. If 

Montana had modeled the higher 

emissions, other emission limits would 

have had to have been greatly curtailed 

for the area to demonstrate attainment of 

the NAAQS. Our experience indicates 

that the flare emissions at Holly and in 

Montana are not unique. See, e.g., EPA 

Enforcement Alert, Volume 3, Number 

9, October 2000, ‘‘Frequent, Routine 

Flaring May Cause Excessive, 

Uncontrolled Sulfur Dioxide Releases,’’ 

which we have included in the docket 

for this action. Similarly, our experience 

indicates that power plant emissions 

during malfunctions can greatly exceed 

emissions during routine operations. 

3. A report by the Environmental 

Integrity Project, which we included in 

the record for our notice of proposed 

rulemaking, also indicates that 

malfunction emissions can dwarf SIP 

and permit emissions limits. See 

‘‘Gaming the System,’’ August 2004, 

docket no. EPA–R08–OAR–2010–0909– 

0042, pages 2, 5–9. See also, EPA 

Enforcement Alert cited above, p. 2. 

We also proposed other bases for our 

finding of substantial inadequacy. As 

we indicated in our notice of proposed 

rulemaking, the UBR not only applies to 

SIP limits, but also to permit limits and 

national technology-based standards 

like the NSPS and NESHAPS. See 75 FR 

70892. 

This means a source could use the 

provisions of R307–107 to claim an 

exemption from best available control 

technology (BACT) or lowest achievable 

emission rate (LAER) limits in a major 

source permit. We have consistently 

interpreted the Act to not allow for 

outright exemptions from BACT limits, 

and the same logic applies to LAER 

limits. See, e.g., 1977 memorandum 

entitled ‘‘Contingency Plan for FGD 

Systems During Downtime as a 

Function of PSD,’’ from Edward E. Reich 

to G.T. Helms and January 28, 1993 

memorandum entitled ‘‘Automatic or 

Blanket Exemptions for Excess 

Emissions During Startup and 

Shutdowns under PSD,’’ from John B. 

Rasnic to Linda M. Murphy. As noted, 

in order to ensure non-degradation of air 

quality at all times under the PSD 

program and protection of the NAAQS 

at all times, it is necessary for a source 

to comply with its permit limits at all 

times. 

To the extent any exemptions from 

the NSPS or NESHAPS are warranted, 

the Federal standards contained in 

EPA’s regulations already specify the 

appropriate exemptions. See, e.g., 40 

CFR 60.48Da(c).8 No additional 

exemptions or criteria are warranted or 

appropriate. See, e.g., 40 CFR 60.10(a); 

40 CFR 63.12(a)(1); and the 1999 Policy, 

Attachment, at 3.9 Furthermore, in 

Sierra Club v. EPA, 551 F.3d 1019 (DC 

Cir. 2008), the DC Circuit determined 

that exemptions from compliance with 

CAA section 112 Maximum Achievable 

Control Technology (MACT) standards 

during periods of SSM were 

inconsistent with CAA section 302(k), 

which requires continuous compliance 

with emission limits. Thus, R307–107– 

1 is substantially inadequate because it 

improperly provides an exemption and 

grants discretion to the Utah executive 

secretary not contained in and not 

sanctioned by the delegated Federal 

standards. 


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21644 Federal Register / Vol. 76, No. 74 / Monday, April 18, 2011 / Rules and Regulations 

10 ‘‘Re-Issuance of Clarification—State 

Implementation Plans (SIPs): Policy Regarding 

Excess Emissions During Malfunction, Startup, and 

Shutdown,’’ Eric Schaefer and John Seitz, December 

5, 2001. 

(b) Comment: Commenters state that 

EPA is incorrect in its interpretation and 

reliance on a number of court decisions 

used in part to justify the SIP Call. 

Commenters indicate that Michigan 

DEQ v. Browner and Arizona Public 

Service Co. v. EPA are not relevant. 

Commenters state that EPA fails to 

mention other cases, such as Sierra Club 

v. Georgia Power, which commenters 

allege are more on point and do not 

support EPA’s proposed SIP call. 

Commenters also criticize EPA’s citation 

of Sierra Club v. EPA, and claim that 

EPA’s ‘‘broad interpretation’’ is at odds 

with a July 2009 letter from Adam 

Kushner to industry. 

Response: Our action is based on our 

longstanding interpretation of the CAA, 

which is reflected in our 1999 and 

earlier policy statements, among other 

locations. As we noted in our proposal 

(see 75 FR 70890), Arizona Public 

Service Co. v. EPA, 562 F.3d 1116, 1129 

(10th Cir. 2009) held that our 1999 

Policy was a ‘‘reasonable interpretation 

of the Clean Air Act.’’ The court in 

Michigan DEQ v. Browner, 230 F.3d 

181, 186 (6th Cir. 2000) similarly found 

that EPA’s interpretation of section 110, 

as explained in the 1982 and 1983 

Policies, was reasonable and held that 

‘‘EPA reasonably concluded that 

Michigan’s proposed SIP revision did 

not meet the requirements of the CAA.’’ 

Contrary to commenters’ arguments, 

these cases are relevant to our action. 

The courts agreed with EPA that it is not 

appropriate under CAA section 110 to 

provide or approve an outright 

exemption from SIP emission 

limitations, and the Michigan DEQ court 

upheld EPA’s determination that 

Michigan’s defective SSM revisions did 

not meet the requirements of the CAA. 

Commenters suggest that these cases 

are irrelevant because they didn’t 

involve a SIP call. However, if, as these 

courts held, EPA’s interpretation is 

reasonable—that a malfunction 

provision that provides an exemption 

from an emission limit does not meet 

the minimum requirements of CAA 

section 110—then logic leads to the 

conclusion that the provision is 

substantially inadequate to meet section 

110’s requirements with respect to SIP 

compliance and enforceability. 

EPA’s past approval of a provision 

that fails to meet the minimum 

requirements of the Act does not render 

the provision compliant, something EPA 

plainly acknowledged in its various 

policy statements over the years. The 

SIP call provisions of the Act provide 

EPA with one of the only means to 

revisit SIP decisions that may have been 

wrong or ill-considered, or that have 

been brought into greater focus with the 

passage of time and development of 

relevant knowledge and case law. 

Contrary to commenters’ assertion, we 

did refer to Sierra Club v. Georgia Power 

Co. in our proposal at 75 FR 70892, n. 

7, but inadvertently omitted the case 

name. We disagree that the case ‘‘is more 

analogous’’ or ‘‘contradicts EPA’s current 

interpretation.’’ The case merely held 

that EPA’s 1999 policy did not change 

the existing Georgia SIP, a proposition 

we agree with and have acted in 

accordance with here. See EPA’s 

December 5, 2001 clarification of the 

1999 Policy, which is in the docket. If 

we thought the policy trumped the 

approved SIP, there would be no need 

to issue a SIP call now. As Sierra Club 

v. Georgia Power Co. suggested, we are 

issuing a SIP call to ensure that the Utah 

SIP meets the minimum requirements of 

the CAA. See 443 F.3d 1346, 1355 (11th 

Cir. 2006). 

Regarding Sierra Club v. EPA, 551 

F.3d 1019 (DC Cir. 2008), while we did 

not cite the case as the main basis for 

our SIP call, we remain convinced it is 

relevant even though it addressed the 

hazardous air pollutant (HAP) 

regulations. In particular, the court 

significantly relied on section 302(k)’s 

definition of emission standard (as a 

requirement that limits the quantity, 

rate, or concentration of emissions of air 

pollutants on a continuous basis) to 

reach its ultimate holding disallowing 

EPA’s exceptions from the MACT 

standards and attempted reliance on the 

general duty to minimize emissions. As 

with MACT standards, there is no 

indication that Congress intended 

compliance with NAAQS, or 

compliance with emission limits relied 

on to attain and maintain the NAAQS, 

be anything less than continuous. Also, 

we disagree with the comment that the 

UBR does not provide an express 

exemption from SIP and other emission 

limits. The UBR states that ‘‘emissions 

resulting from an unavoidable 

breakdown will not be deemed a 

violation of these regulations.’’ This is 

an exemption. The provisions in the 

UBR requiring that an owner/operator 

take ‘‘reasonable’’ measures to reduce 

emissions resulting from an unavoidable 

breakdown are analogous to the general 

duty provisions in EPA’s MACT 

provisions. The Sierra Club court found 

these general duty requirements were 

not a substitute for a 112 emission 

standard. Here, we find the emissions 

minimization requirements in the UBR 

are not a substitute for continuously 

applicable emission limitations that 

support attainment and maintenance of 

the NAAQS, and protection of PSD 

increments and visibility. 

We also disagree that our views 

contradict the views Adam Kushner 

(EPA’s Director of the Office of Civil 

Enforcement) expressed in his July 2009 

letter to industry representatives. Mr. 

Kushner was delineating which MACT 

standards were directly affected by the 

court’s ruling and how they would be 

affected. Mr. Kushner was not 

expressing an opinion about the import 

of the Court’s decision for other types of 

emission standards and limitations. We 

also find noteworthy the following 

language from Mr. Kushner’s letter: 

‘‘Although these provisions [sourcecategory specific SSM provisions] will 

remain in effect following the issuance 

of the mandate in Sierra Club, EPA 

recognizes that the legality of such 

source category-specific SSM provisions 

may now be called into question, and 

EPA intends to evaluate them in light of 

the court’s decision.’’ EPA has since 

revised or proposed to revise several 

MACT standards with source-specific 

malfunction provisions to eliminate the 

exemptions from compliance during 

periods of malfunction. See, e.g., 76 FR 

15608 (March 21, 2011); 75 FR 54970 

(September 9, 2010); 75 FR 65068 

(October 21, 2010). 

(c) Comment: EPA lacks the 

regulatory authority to make a SIP call 

based on policy or guidance that has not 

become applicable law. The 1999 Policy 

EPA cites as justification for the SIP Call 

has never been subjected to the legal 

requirements of notice and public 

rulemaking under the Administrative 

Procedures Act. In addition, 

commenters assert that if EPA were 

authorized to regulate through policy, it 

would be inappropriate in this case 

because the 2001 Policy 10 clarifies that 

the 1999 Policy was not intended to 

alter the status of any existing 

malfunction, startup, or shutdown 

provisions in a SIP that had been 

approved by EPA. 

Response: The 1999 Policy reflects 

our interpretation of the CAA. We have 

not treated it as binding on the States or 

asserted that it changed existing SIP 

provisions. Instead, we have done what 

commenters argue is necessary—we 

have engaged in notice and comment 

rulemaking to determine whether a SIP 

call is appropriate in this case. Through 

this rulemaking action, we have 

evaluated provisions of the Utah SIP to 

determine whether they are consistent 

with our interpretation of the CAA as 

reflected in our policies. We provided 

commenters with the opportunity to 


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11We have applied the interpretation reflected in 

our policies in a number of other rulemaking 

actions. See, e.g., the Billings/Laurel Federal 

Implementation Plan, 73 FR 21418 (April 21, 2008); 

approvals of Colorado SSM rules, 71 FR 8958 

(February 22, 2006) and 73 FR 45879 (August 7, 

2008); partial approval and partial disapproval of 

Texas SSM rules, 75 FR 26892 (May 13, 2010) and 

75 FR 68989 (November 10, 2010); disapproval of 

Michigan SSM rules, 63 FR 8573 (February 20, 

1998); approval of Maricopa County, Arizona SSM 

rules, 67 FR 54957 (August 27, 2002). 

12We included the 2001 clarification in the 

docket for our proposal but did not cite it 

specifically. 

13The 1999 Policy defines ‘‘automatic exemption’’ 

as ‘‘a generally applicable provision in a SIP that 

would provide that if certain conditions existed 

during a period of excess emissions, then those 

exceedances would not be considered violations.’’ 

The UBR provides such an automatic exemption: 

‘‘Except as otherwise provided in R307–107, 

emissions resulting from an unavoidable 

breakdown will not be deemed a violation of these 

regulations.’’ In this notice, we also refer to this as 

an outright exemption or an exemption. 

14As we noted in our proposal and elsewhere in 

this action, however, the 2008 Sierra Club case held 

that EPA rules exempting major sources from 

technology-based NESHAP standards during SSM 

periods violated the CAA’s requirement in section 

112 that some standard meeting that provision’s 

substantive requirements apply continuously. 

Sierra Club v. EPA, 551 F.3D 1019, 1028 (DC Cir. 

2008). 

comment on the proposed SIP call and 

our basis for it, and are only finalizing 

the SIP call after carefully considering 

commenters’ comments.11 To the extent 

some commenters may be arguing that 

we must conduct national rulemaking 

on our policy before we can conduct SIP 

call rulemaking with respect to a 

specific State malfunction provision, we 

find no basis for this assertion in the 

CAA. We have evaluated the UBR, 

found it substantially inadequate as 

specified in the CAA, and issued a SIP 

call as required. The process we have 

followed and the substance of our action 

are reasonable. 

Commenters emphasize our failure to 

specifically cite our December 5, 2001 

clarification to the 1999 Policy, in 

which we indicated that the 1999 Policy 

was not intended to ‘‘alter the status of 

any existing malfunction, startup or 

shutdown provision in a SIP that has 

been approved by EPA.’’ 12 The 2001 

clarification merely states the obvious 

well-understood principle—that an 

approved SIP remains the approved SIP 

unless or until EPA undertakes 

rulemaking action to revise the SIP. See 

General Motors v. United States, 496 

U.S. 530, 540–541 (1990). In other 

words, the 1999 Policy did not modify 

existing SIP provisions. Here, ‘‘in the 

context of future rulemaking’’ as 

contemplated by the 2001 clarification, 

we have considered ‘‘the Guidance and 

the statutory principles on which the 

Guidance is based.’’ See December 5, 

2001 clarification. 

One commenter argues that the 2001 

clarification ‘‘clarifies the 1999 Policy 

does not apply to’’ the UBR. On the 

contrary, because the UBR addresses the 

treatment of excess emissions resulting 

from an unavoidable breakdown, EPA’s 

interpretations reflected in the 1999 

Policy are clearly relevant. Also, 

nothing in the 2001 clarification 

rejected EPA’s statement in the 1999 

Policy that all EPA Regions ‘‘should 

review the SIPs for their states in light 

of this clarification and take steps to 

insure that excess emissions provisions 

in these SIPs are consistent with the 

attached guidance.’’ As provided above, 

the sole purpose of the 2001 

clarification was to expressly state that 

the policy—standing alone—did not 

serve to change the terms of an 

approved SIP. 

(d) Comment: EPA’s proposed SIP call 

is justified regardless of its reliance on 

guidance. Commenter explains that 

Utah’s SIP cannot possibly assure the 

NAAQS and other CAA requirements 

will be met if the SIP allows a blanket 

exemption from emission limits, 

particularly because the effectiveness of 

Utah’s SIP is premised upon compliance 

with emission limits. 

Response: Our SIP call relies on our 

interpretations of the CAA as reflected 

in numerous policy statements and 

actions over the years. Otherwise, we 

agree with the commenter. 

(e) Comment: Commenters assert that 

EPA’s SIP call is inconsistent when 

compared with other EPA SSM polices 

such as those for NSPS in 40 CFR 

60.8(c). 

Response: Emission limitations in 

SIPs must ensure ambient levels of 

criteria pollutants that attain and 

maintain the NAAQS. For purposes of 

demonstrating attainment and 

maintenance, States assume source 

compliance with emission limitations at 

all times. Thus, provisions that exempt 

compliance during SSM undermine the 

integrity of the SIP. This principle 

underlies EPA’s interpretations 

regarding SIP SSM provisions as 

reflected in our various policy 

statements over the years. For example, 

in our 1999 Policy we stated the 

following: 

‘‘EPA has a fundamental responsibility 

under the Clean Air Act to ensure that SIPs 

provide for attainment and maintenance of 

the national ambient air quality standards 

(‘‘NAAQS’’) and protection of PSD 

increments. Thus, EPA cannot approve an 

affirmative defense provision that would 

undermine the fundamental requirement of 

attainment and maintenance of the NAAQS, 

or any other requirement of the Clean Air 

Act. See sections 110(a) and (l) of the Clean 

Air Act * * * Accordingly, an acceptable 

affirmative defense provision may only apply 

to actions for penalties, but not to actions for 

injunctive relief. 

* * * * * 

Generally, since SIPs must provide for 

attainment and maintenance of the national 

ambient air quality standards and the 

achievement of PSD increments, all periods 

of excess emissions must be considered 

violations. Accordingly, any provision that 

allows for an automatic exemption for excess 

emissions is prohibited. 

* * * * * 

Automatic exemptions might aggravate 

ambient air quality by excusing excess 

emissions that cause or contribute to a 

violation of an ambient air quality standard.’’ 

Similarly, in our 1982 Policy, we stated 

the following: 

‘‘The rationale for establishing these 

emissions as violations, as opposed to 

granting automatic exemptions, is that SIPs 

are ambient-based standards and any 

emissions above the allowable may cause or 

contribute to violations of the national 

ambient air quality standards.’’ 

Thus, EPA has long said that automatic 

exemptions from SIP emission limits are 

not appropriate because the SIPs are for 

the purpose of ensuring health-based 

standards are met and maintained.13

NSPS and other technology-based 

standards, on the other hand, do not 

have to ensure attainment of the 

NAAQS. Instead, CAA section 111(a)(1) 

provides that a new source ‘‘standard of 

performance’’ must reflect ‘‘the degree of 

emission limitation achievable through 

the application of the best system of 

emission reduction which (taking into 

account the cost of achieving such 

reduction and any nonair quality health 

and environmental impact and energy 

requirements)’’ EPA determines has 

been ‘‘adequately demonstrated.’’ Thus, 

historically, EPA has held different 

interpretations regarding the proper 

treatment of excess emissions during 

SSM under health-based standards 

addressed in SIPs and the NSPS 

technology-based standards.14 In the SIP 

context, and in the context of SIP-based 

permits, EPA’s interpretation of the 

CAA is reasonable, and it is reasonable 

for EPA to require that Utah revise the 

UBR or remove it from the SIP. 

(f) Comment: The Utah UBR has been 

federally-approved in the SIP for over 

30 years. Based on empirical UDAQ 

monitoring since that approval, the Utah 

UBR has not contributed to a NAAQS 

exceedance. 

Response: As indicated above, we 

disagree that the commenters’ suggested 

test—whether there is demonstrated 

proof that a specific excess emission 

event allowed under the UBR has 

contributed to a specific monitored 


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21646 Federal Register / Vol. 76, No. 74 / Monday, April 18, 2011 / Rules and Regulations 

15We note that dispersion modeling, based on SIP 

emission limitations, is often required to 

demonstrate attainment and maintenance of the 

NAAQS because modeling can predict pollutant 

levels at receptor locations throughout an area, 

whereas monitors are limited in number and 

location. See, e.g., 40 CFR 51.112; 40 CFR part 51, 

appendix W. 

16Based on data in EPA’s Air Quality System 

database for the years 2005 through 2010, there 

were 171 days during which the PM2.5 NAAQS was 

exceeded at a monitor in Utah and 154 days during 

which the 2006 ozone NAAQS was exceeded at a 

monitor in Utah. 

17Clean Air Implementation Project v. EPA 

addressed a challenge to EPA’s credible evidence 

rule and held that the challenge was not ripe for 

decision. 

NAAQS exceedance—is the test we 

must use. As stated above, for purposes 

of demonstrating attainment and 

maintenance of the NAAQS (and for 

protecting PSD increments and 

visibility), States assume source 

compliance with SIP emission 

limitations at all times.15 Thus, it is 

reasonable to insist that the SIP not 

interfere with or undermine the ability 

to enforce compliance with SIP 

limitations at all times. The UBR fails 

this test for the reasons already stated. 

In addition, even if the commenters 

were correct that the sole reasonable test 

is whether the UBR has contributed to 

a monitored exceedance of the NAAQS, 

we cannot discern whether commenters 

are saying there has never been a 

breakdown event on a day when a 

monitor has exceeded a NAAQS. (The 

commenters submitted no data 

regarding claims under the UBR.) 

However, based on monitored violations 

of the NAAQS, Utah has had areas 

designated nonattainment for various 

pollutants over the course of many years 

and continues to have nonattainment 

areas for PM2.5, PM10, and SO2. Areas in 

Utah will likely be designated 

nonattainment for ozone again in the 

future. As noted in a prior response, 

malfunction-based emissions at 

stationary sources can lead to large 

emissions in a short period of time, and 

it is reasonable to conclude that excess 

emissions during malfunctions have 

contributed and/or have the potential to 

contribute to NAAQS exceedances and 

violations in the urbanized areas of 

Utah.16 If EPA promulgates new, more 

stringent NAAQS, the potential for 

NAAQS exceedances and violations 

only increases. 

Several commenters emphasize that 

the UBR has been in the SIP for more 

than 30 years and that EPA has 

approved it more than once. We first 

approved the UBR in 1980 only after 

stating in our 1979 proposed rulemaking 

action that we could not fully approve 

the UBR ‘‘because it exempts certain 

excess emissions from being violations 

of the Air Conservation Regulations’’ 

and only after opining that exemptions 

granted under the UBR would not apply 

as a matter of Federal law. See 44 FR 

28688, 28691 (May 16, 1979). 

Second, our approval of the UBR 

preceded the 1982 and 1983 Policies. 

These memoranda to EPA’s Regional 

Administrators were issued in response 

to requests for clarification of EPA’s 

policy regarding excess emissions 

during SSM. Presumably, these 

memoranda were issued because 

previously there had been some 

confusion about EPA’s interpretation of 

the CAA on this issue. A comparison of 

the UBR to these policies reveals that 

the UBR did not and does not comport 

with the interpretation reflected in the 

policies. For example, the 1982 Policy 

states that EPA can approve SIP 

revisions that incorporate an 

‘‘enforcement discretion approach’’ that 

requires the State agency to treat all 

excess emissions due to malfunctions as 

violations and commence a proceeding 

to notify the source of its violation. 

Then the State agency would determine 

whether to initiate an enforcement 

action based on specific, detailed 

criteria contained in the 1982 Policy. 

The UBR does not treat all excess 

emissions as violations, does not require 

the State to initiate a proceeding to 

notify the source of its violation, and 

does not contain the criteria consistent 

with those contained in the 1982 Policy. 

The 1982 Policy stated, ‘‘Where the SIP 

is deficient, the SIP should be made to 

conform to the present policy.’’ Contrary 

to the 1982 Policy’s directive, the SIP 

was not made to conform to the 1982 

Policy. 

We approved a revised version of the 

UBR in 1994 with no preamble 

discussion except to note that the Utah 

air rules had been renumbered and new 

requirements had been added to the SIP. 

See 57 FR 60149 (December 18, 1992) 

and 59 FR 35036 (July 8, 1994). There 

is no indication that EPA evaluated the 

substance of the UBR or any of the other 

re-numbered provisions that were 

already included as part of the approved 

SIP. Id. We also note that the 1994 

approval preceded our 1999 Policy, 

which re-alerted EPA regional offices to 

the issues regarding SIP SSM rules, 

acknowledged that some existing SIPs 

included deficient SSM provisions, and 

directed the Regions to review the SIPs 

and seek to correct such provisions. 

Subsequent to EPA’s issuance of the 

1999 Policy, we approved another 

renumbering of the Utah SIP, including 

a renumbering of the UBR. Again, EPA 

did not consider the substance of the 

UBR, but did expressly reference EPA’s 

ongoing concerns with SIP rules and 

specifically noted that Utah had 

committed to address those concerns, 

which included concerns with the UBR. 

We indicated that we would ‘‘continue 

to require the State to correct any rule 

deficiencies despite EPA’s approval’’ of 

the recodification. See 70 FR 59681, 

59683 (October 13, 2005). 

In other words, we indicated in the 

1979 proposal that preceded our 1980 

approval that we could not fully 

approve the UBR because it provided 

exemptions from violations, and in our 

subsequent actions, we did not 

reanalyze the adequacy of the rule. 

However, we did indicate in our most 

recent re-numbering approval our intent 

to require the State to correct the 

deficiencies in the UBR. 

Furthermore, since EPA issued the 

1999 Policy, we have been working with 

Utah in an attempt to change the UBR 

on a cooperative basis. As noted in our 

proposal, Utah acknowledged that the 

provision could benefit from 

clarification and initiated rulemaking 

toward that end. In an April 18, 2002 

letter, Utah also specifically committed 

to address our concerns with the rule. 

See 75 FR 70891. However, Utah never 

completed a change to the UBR despite 

our substantial efforts to help Utah 

develop a revised rule that would meet 

CAA requirements. Id. The delay that 

has resulted from our attempt to reach 

a consensus-based solution does not 

diminish our authority to issue a SIP 

call. 

(g) Comment: Commenter asserts that 

‘‘there must be evidence of new 

information that would explain how 

Utah’s SIP has somehow been 

transformed from adequate to 

substantially inadequate.’’ Commenter 

cites Clean Air Implementation Project 

v. EPA, 150 F.3d 1200, 1207 (DC Cir. 

1998) for this proposition. Commenter 

asserts that no such information has 

been provided. 

Response: Commenter’s interpretation 

would preclude EPA from changing its 

interpretations and conclusions over 

time or from determining that prior 

approvals were a mistake, and issuing a 

SIP call on such bases. CAA sections 

110(a)(2)(H) and 110(k)(5) do not 

constrain us in that way, and Clean Air 

Implementation Project v. EPA did not 

hold that a SIP previously found by EPA 

to be adequate could not be 

subsequently found to be inadequate 

absent evidence of new information. On 

the contrary, the case did not involve a 

challenge to a SIP call at all, and the 

statements the commenter refers to were 

dicta involving a completely different 

set of facts.17


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18 In 1997, EPA initiated an enforcement action 

against the Phillips Petroleum refinery in Davis 

County, Utah when the State declined to pursue 

enforcement. Among other things, EPA alleged that 

Phillips had violated its one-hour emission limit 

contained in the Utah SIP for the Salt Lake County 

PM10 nonattainment area. The State, with little or 

no apparent analysis, decided that all or nearly all 

of the more than 1,000 exceedances EPA cited in 

its complaint against Phillips were caused by 

unavoidable breakdowns and were not violations 

under the UBR. Phillips alleged in pleadings that 

the State’s decision precluded EPA enforcement as 

a matter of law. We disagreed with the State’s 

decision and with Phillips’ arguments, but the court 

never decided the issue because a settlement was 

reached. We have included in the docket for this 

action various pleadings and documents from the 

Phillips enforcement case that reflect the facts cited 

herein. 

19We also may have been justified using our 

authority under 110(k)(6) to revise the rule, but 

have decided the better course here is to provide 

the State the opportunity to revise the SIP through 

the SIP call process. 

As a practical matter, our past 

decisions are not infallible. They reflect 

a decision made at a particular point in 

time by a particular set of individuals 

based on a particular understanding (or 

misunderstanding) of facts, policy, and 

law. Our 1999 Policy expressly 

recognizes this: ‘‘A recent review of SIPs 

suggests that several contain provisions 

that appear to be inconsistent with this 

policy, either because they were 

inadvertently approved after EPA issued 

the 1982–1983 guidance or because they 

were part of the SIP at that time, and 

have never been removed.’’ 1999 Policy 

at 1. Further, the 1999 Policy advised all 

Regions to review the SIPs for their 

States in light of the clarification and 

take steps to insure that excess 

emissions provisions in these SIPs are 

consistent with the policy. Id. at 4. 

Similarly, EPA’s 1982 Policy explained 

that the Agency, because it had been 

inundated with proposed SIPs in the 

early 1970’s and had limited experience 

processing them, had not given 

sufficient attention to the ‘‘adequacy, 

enforceability, and consistency’’ of SSM 

provisions. Thus, ‘‘many SIPs were 

approved with broad and looselydefined provisions to control excess 

emissions.’’ 1982 Policy at 1. 

The 1999 Policy can be viewed as 

refreshing EPA’s institutional memory. 

It reiterated and clarified EPA’s 

longstanding interpretation and 

provided direction to EPA’s regional 

offices to review SIPs from their 

respective States. This caused EPA 

Region 8 to review SIPs for Utah and the 

other States within the region. As noted 

in our proposal, several Region 8 States 

have submitted revisions to their SSM 

rules in response to our review, and 

EPA has approved revised rules for 

Colorado and Wyoming. See 75 FR 

70890. Our review of the Utah rule 

revealed that it was inconsistent with 

CAA requirements, and we initiated 

sustained efforts to get the State to 

revise the rule. The State did not revise 

the rule. See 75 FR 70890–70891. 

A review of facts here indicates that 

EPA’s 1980 approval of the UBR was illconsidered because even then our basic 

interpretation that all excess emissions 

must be treated as violations applied. As 

discussed in our proposal for this 

action, EPA said in its 1979 proposal on 

the UBR that EPA ‘‘may not fully 

approve Regulation 4.7 because it 

exempts certain excess emissions from 

being violations of the Air Conservation 

Regulations’’ but then proposed to 

approve the UBR anyway. Clearly, the 

regulation did not comport with EPA’s 

interpretations regarding SSM 

provisions in SIPs. However, with 

almost no explanation, EPA justified its 

approval based on a conclusion that any 

exemptions granted by Utah ‘‘are not 

applicable as a matter of federal law.’’ 

See 44 FR 28691. This did not obviate 

the deficiency in the UBR. Also, EPA’s 

interpretation of that time—that 

exemptions granted by Utah would not 

affect Federal enforcement—could be 

questioned and rejected in court. While 

some commenters state that EPA’s 

enforcement discretion would not be 

affected by the Utah executive 

secretary’s decision, others offer no such 

concession. See, e.g., Utah 

Manufacturers Association, et al., 

comment letter at 5 versus Utah 

Industry Environmental Coalition, et al., 

comment letter at 14, which are in the 

docket for this action. Furthermore, 

Phillips Petroleum asserted in a 1997 

EPA enforcement action that Utah’s 

non-violation determinations under the 

UBR were binding on EPA.18

While we disagree with the 

commenter that a SIP call is only 

allowed where there is new external 

information that the SIP is invalid,19

facts since our 1980 approval, such as 

arguments made in enforcement cases 

contrary to EPA’s interpretation, would 

certainly qualify as new information 

justifying a SIP call. Among other 

things, the UBR is substantially 

inadequate because it is burdened by 

the uncertainty of whether EPA or 

citizens may pursue independent 

enforcement where the Utah executive 

secretary decides an excess emission is 

not a violation. 

(h) Comment: Commenters state that 

EPA mischaracterizes the Utah UBR in 

that Utah’s rule does not allow for 

outright exemptions from BACT or 

LAER limits, and does not undermine 

protection of the NAAQS, PSD 

increments, or visibility. 

Response: We do not agree. Under the 

UBR, excess emissions resulting from 

unavoidable breakdowns are not 

violations. We consider that an outright 

exemption, which prevents enforcement 

action where, for example, it may be 

needed to protect the NAAQS. The 

commenter’s premise—that unavoidable 

breakdowns will occur regardless of the 

rule—assumes a continued right to 

pollute regardless of whether such 

emissions might undermine the very 

purpose of the SIP—attainment and 

maintenance of the NAAQS. It also 

assumes that the UBR provides adequate 

incentives to avoid malfunctions and 

protect the NAAQS. We do not agree. 

See our other responses. 

(i) Comment: A commenter argues 

that the UBR does not preclude 

injunctive relief. The commenter cites 

UDAQ’s ability to pursue injunctive 

relief if it decides the excess emissions 

were not caused by an unavoidable 

breakdown. 

Response: The commenter says 

nothing about EPA or citizen authority 

where UDAQ decides, erroneously or 

not, that the excess emissions were 

caused by an unavoidable breakdown, 

or where the excess emissions were in 

fact caused by an unavoidable 

breakdown as defined in the UBR. It is 

our interpretation that injunctive relief 

must be preserved regardless of the 

State determination and regardless of 

the cause of the exceedance. Protection 

of the NAAQS should not be 

subservient to a source’s desire to 

continue operating as it has, or its 

‘‘need’’ to continue polluting. As we 

have explained in our various policy 

statements over the years, all 

exceedances must be treated as 

violations to allow protection of the 

NAAQS, and no defense to injunctive 

relief is appropriate. See the 1982, 1983, 

and 1999 Policies. 

Also, as to UDAQ’s enforcement 

discretion, we find it likely that the UBR 

would prevent the State from obtaining 

injunctive relief where the breakdown 

meets the criteria in the UBR to be 

classified as unavoidable. 

(j) Comment: Commenters state that 

contrary to EPA’s assertion, the 

discretion afforded the UDAQ executive 

secretary under the unavoidable 

breakdown rule does not limit EPA’s 

ability to overfile or a third party’s 

ability to file a citizen’s suit. Another 

commenter states that EPA lacks a 

reasonable basis to presume 

‘‘uncertainty’’ about reserved 

enforcement authority. 

Response: The UBR language in 

question reads: ‘‘The submittal of such 

information shall be used by the 

executive secretary in determining 

whether a violation has occurred and/or 

the need of further enforcement action.’’ 


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20See, e.g., U.S. v. Ford Motor Co., 736 F.Supp. 

1539 (W.D. Mo. 1990) and U.S. v General Motors 

Corp., 702 F.Supp. 133 (N.D. Texas 1988) (EPA 

could not pursue enforcement of SIP emission 

limits where States had approved alternative limits 

under procedures EPA had approved into the SIP); 

Florida Power & Light Co. v. Costle, 650 F.2d 579, 

588 (5th Cir. 1981) (EPA to be accorded no 

discretion in interpreting State law). While we do 

not agree with the holdings of these cases, we think 

the reasonable course is to eliminate any 

uncertainty about reserved enforcement authority 

by requiring the State to revise or remove the 

unavoidable breakdown rule from the SIP. 

21 In approving Colorado’s affirmative defense 

rule for startup and shutdown, we specifically 

disapproved one section of the rule that we felt 

could have been construed to cede authority to 

Colorado to determine whether a source had 

established the elements of the affirmative defense. 

71 FR at 8959 (February 22, 2006). 

22The UBR could be easily revised to address the 

problem. The sentence in question could be 

changed to read, ‘‘The submittal of such information 

shall be used by the executive secretary in 

determining whether to pursue enforcement 

action.’’ 

The plain language appears to grant the 

executive secretary the authority to 

determine whether excess emissions 

constitute a violation or not. Our 

approval of that language could be 

construed by a court as ceding that 

authority to the State. A court could 

conclude that it should not resort to the 

interpretation we offered with our 1980 

approval—that an exemption granted by 

the Utah executive secretary would not 

apply as a matter of Federal law— 

because the language of the regulation is 

clear on its face.20 Also, we did not 

repeat our 1980 interpretation in 

subsequent approvals. In addition, 

representations made by the 

commenters here would not bind them 

or other entities in subsequent 

enforcement actions. 

The State suggests that it would not 

‘‘forget EPA’s interpretation of the law.’’ 

But, in its comments, the State does not 

say it agrees with EPA’s interpretation 

or that it or another entity would not 

argue against EPA’s interpretation in an 

enforcement action. As noted, at least 

one defendant—Phillips Petroleum— 

has already argued against our 1980 

interpretation. To our knowledge, the 

State has never provided an 

interpretation that the UBR was not 

intended to and does not have a 

preclusive effect on EPA or citizen 

enforcement. 

At best, the UBR language is 

ambiguous, and in the face of this 

ambiguity, a court could defer to the 

State’s interpretation, whose 

interpretation of the rule is currently 

unknown. Ambiguous language can 

undermine the purpose of the SIP and 

compliance with CAA requirements.21

The commenters would have us 

remain silent in face of the uncertainty 

caused by the UBR language. The 

reasonable course is to require the State 

through our SIP call authority to change 

the UBR to remove its potential 

impediment to our and citizens’ 

exercise of our independent 

enforcement authority under CAA 

sections 113 and 304.22 The UBR’s 

threat to our and citizens’ independent 

enforcement authority under the CAA 

renders the SIP substantially 

inadequate. 

The State suggests that our action is 

unreasonable because it has taken us so 

long to recognize and address the 

problem. As we noted above, issuance 

of the 1999 Policy spurred our reexamination of the Utah SIP. In 

particular, the 1999 Policy clarified that 

SIPs should not include provisions 

whereby a State’s enforcement decision 

would ‘‘bar EPA’s or citizens’ ability to 

enforce applicable requirements.’’ 1999 

Policy at 3. The Phillips Petroleum case 

also influenced us. The State does not 

mention that we attempted to address 

our concerns cooperatively with the 

State since shortly after the 1999 Policy 

was issued, and for many years 

thereafter. 

(k) Comment: One commenter 

suggests that the potential preclusive 

effect of the executive secretary’s 

violation/non-violation determinations 

under the UBR may be ‘‘in keeping with 

the role given to states in SIP matters.’’ 

Response: We disagree. Sections 113 

and 304 of the Act clearly provide 

independent enforcement authority to 

EPA and citizens. While section 304 

limits citizens’ authority where a State 

or EPA ‘‘has commenced and is 

diligently prosecuting a civil action,’’ 

nothing in the CAA suggests that 

Congress intended or required States to 

have exclusive authority to determine 

whether an exceedance constitutes a 

violation. Nor is there any rational 

reason EPA should be relegated, as the 

commenter suggests, to an action under 

section 113(a)(2) of the Act—to 

essentially wait for ‘‘widespread’’ 

dereliction of duty on Utah’s part—to 

correct this problem in the UBR. Our 

use of SIP call authority to correct the 

problem is reasonable. We have 

responsibility to implement and 

interpret the CAA, and we reject the 

commenter’s interpretation that the 

‘‘balance of authority in Utah’s SIP and 

the UBR is in keeping with the role 

given to states in SIP matters.’’ Contrary 

to the commenter’s suggestion, we are 

not required to wait for a court to 

determine in the context of an 

enforcement action whether the 

potential preclusive effect of the UBR 

language is consistent with the CAA. 

Congress did not hamstring us in that 

way; instead it provided us with 

authority to issue a SIP call to address 

substantial inadequacies in the SIP. 

(l) Comment: Commenters argue that 

EPA’s preferred approach would have 

no impact on emissions because 

unavoidable breakdowns are by their 

nature unavoidable regardless of the 

rule governing such events. 

Response: First, as we explain above, 

the UBR precludes injunctive relief 

when the excess emissions fall within 

the UBR’s coverage. As we have 

explained, this is inconsistent with the 

CAA. Commenters do not address this, 

but instead appear to assume the need 

to pollute trumps protection of the 

NAAQS. 

Second, how ‘‘unavoidable’’ is defined 

makes a difference. Depending on the 

definition, different incentives with 

respect to design, operation, and 

maintenance are created. We find that 

the criteria contained in the UBR are not 

as extensive or rigorous as the criteria in 

the 1999 Policy for asserting an 

affirmative defense to penalty actions. 

For example, the UBR indicates that 

breakdowns caused by ‘‘poor 

maintenance’’ or ‘‘careless operation’’ or 

‘‘any other preventable upset condition 

or preventable equipment breakdown’’ 

shall not be considered unavoidable 

breakdowns. Unlike the UBR, the 1999 

Policy specifically addresses potential 

design flaws in addition to issues with 

maintenance and operation: ‘‘The excess 

emissions were not part of a recurring 

pattern indicative of inadequate design, 

operation, or maintenance.’’ The lack of 

specificity in the UBR could lead a court 

to conclude that the rule was not 

intended to reach back to the design of 

the facility or its control equipment. In 

addition, the UBR does not indicate 

who has the burden of proof regarding 

claims of unavoidable breakdown. The 

1999 Policy clearly provides that the 

source has the burden to prove the 

elements of the affirmative defense to 

penalties. 

Third, who decides whether a 

breakdown qualifies as unavoidable 

makes a difference. As we have 

indicated, the UBR appears to give the 

Utah executive secretary exclusive 

authority to determine whether a 

violation has occurred—i.e., whether a 

breakdown was an unavoidable 

breakdown. As noted, potential 

preclusion of EPA and citizen 

enforcement reduces the incentive for 

sources to improve their design, 

maintenance, and operation practices. 

(m) Comment: Commenters assert that 

Utah’s Unavoidable Breakdown Rule is 

generally consistent with EPA’s criteria 

in the 1999 Policy and provide their 

own side-by-side comparison of the 


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1999 Policy’s affirmative defense 

provisions to the relevant provisions in 

Utah’s Unavoidable Breakdown Rule. 

Commenters state that this comparison 

shows the criteria contained in the 1999 

Policy are addressed ‘‘in all material 

respects’’ by the Utah UBR, and that it 

is therefore difficult to understand 

EPA’s conclusion of substantial 

inadequacy. 

Response: The commenters have not 

alleviated our concerns. In our proposal 

and elsewhere in this notice, we 

identify fundamental flaws in the UBR 

that render the UBR substantially 

inadequate regardless of the criteria for 

determining whether a breakdown is 

unavoidable. 

We also disagree with the commenters 

that the criteria are equivalent. We find 

that the UBR lacks the specificity 

contained in the 1999 Policy. For 

example, the 1999 Policy indicates that 

the source needed to use off-shift labor 

and overtime, to the extent practicable, 

to make repairs and needed to make 

repairs expeditiously when it knew or 

should have known that emissions 

limits were being exceeded. This 

specificity helps define the more general 

admonition in the policy that the source 

needs to employ good practices for 

minimizing emissions. We have already 

noted that the UBR criteria do not 

appear to address proper design of the 

facility, and they do not require 

reporting of all breakdowns. Also, the 

UBR does not require that the owner or 

operator document its actions in 

response to the breakdown with signed, 

contemporaneous operating logs. 

Finally, we note that one significant 

difference between the affirmative 

defense described in the 1999 Policy 

and the UBR is that the affirmative 

defense recognizes that a violation of 

the emissions standard has occurred 

and provides relief only for actions for 

penalties. The UBR provides that the 

excess emissions are excused and would 

prohibit any action for penalties and 

any action for injunctive relief. 

(n) Comment: The terms of the UBR 

are analogous to the criteria that EPA’s 

1982 and 1983 policies provided for 

analyzing whether a malfunction ought 

to spur enforcement action under the 

enforcement discretion approach. The 

UBR does not provide an automatic 

exemption as described in those 

policies. 

Response: See our previous response. 

Also, assuming the comment regarding 

the criteria is relevant, we disagree with 

the commenter. The UBR is inconsistent 

with the 1982 and 1983 Policies in 

several respects. Specifically, the 1983 

Policy states that ‘‘EPA can approve SIP 

revisions which incorporate the 

‘enforcement discretion approach.’ Such 

an approach can require the source to 

demonstrate to the appropriate State 

agency that the excess emissions, 

though constituting a violation, were 

due to an unavoidable malfunction. Any 

malfunction provision must provide for 

the commencement of a proceeding to 

notify the source of its violation and to 

determine whether enforcement action 

should be undertaken for any period of 

excess emissions.’’ (Emphasis added). 

The UBR does not require the State to 

initiate a proceeding to notify the source 

of its violation. Moreover, contrary to 

the foregoing, the UBR specifically 

provides that the executive secretary 

may decide that the excess emissions 

are not a violation, which could 

preclude enforcement action by EPA or 

citizens as well as injunctive relief. 

Finally, the 1999 Policy clarified the 

meaning of the term ‘‘automatic 

exemption.’’ As we explain elsewhere, 

the UBR clearly provides an automatic 

exemption. 

(o) Comment: EPA fails to 

acknowledge Utah Rule R307–107–1, 

‘Application’, which states ‘‘Breakdowns 

that are caused entirely or in part by 

poor maintenance, careless operation, or 

any other preventable upset condition 

or preventable equipment breakdown 

shall not be considered unavoidable 

breakdown.’’ Therefore, commenters 

state EPA’s complaint claiming that ‘‘the 

rule’s exemption reduces a source’s 

incentive to design, operate, and 

maintain its facility to meet emission 

limits at all times’’ is without merit. 

Response: We disagree. First, the 

quoted language is part of the criteria 

contained in the UBR. See our responses 

to comments comparing the criteria of 

the UBR to the criteria contained in our 

SSM policies. Second, considered as a 

whole, we conclude that the UBR 

reduces a source’s incentive to meet its 

emission limits at all times. We have 

explained the basis for our view in our 

responses to previous comments. In 

particular, the rule appears to give the 

executive secretary exclusive authority 

to decide whether a breakdown meets 

the criteria under the UBR and thus, 

whether an exceedance is a violation. 

(p) Comment: Commenters assert that 

EPA’s SIP call is inconsistent with the 

Federal-State partnership as 

contemplated in the CAA. Commenters 

state that the CAA does not contemplate 

mandates to require a State to modify its 

SIP, without regard to environmental or 

air quality benefits, simply because EPA 

has a particular policy it wants to 

advance. 

Response: We are not acting at odds 

with the CAA’s contemplated FederalState partnership. The CAA establishes 

minimum requirements for SIPs and 

does not, as the commenters indicate, 

limit EPA’s action to simply reviewing 

a SIP to determine whether it will 

provide for attainment and maintenance 

of the Act. Section 110(a)(2) provides a 

specific list of obligations that a State 

must meet and we are acting to ensure 

the Utah SIP meets those minimum 

requirements. In particular, we are 

acting to ensure that SIP emission 

limits, and related permit limits, which 

are for the purpose of attaining and 

maintaining the health-based air quality 

standards, protecting increments, and 

improving visibility in national parks 

and wilderness areas, can be enforced at 

all times as contemplated by sections 

110 and 302 of the Act. We are also 

acting to ensure that Utah’s SIP does not 

undermine delegated national standards 

like NSPS and NESHAPS. 

(q) Comment: It is left to the states, 

and not EPA, to choose how they will 

achieve assigned emission reduction 

levels. Section 110 allows for a SIP call 

only if the state is not achieving 

NAAQS. As long as a state achieves the 

applicable air quality standards, 

Congress did not intend EPA to require 

a plan revision merely because it 

disagrees with the measure that a state 

implements. 

Response: We are not interfering with 

Utah’s selection of SIP emissions limits. 

We are acting to ensure that one element 

of the SIP—the UBR—is modified or 

removed so that it does not interfere 

with one of the minimum requirements 

of the CAA—that the SIP limits relied 

on to attain and maintain the NAAQS, 

protect increments, and protect 

visibility apply and be enforceable at all 

times. Furthermore, in the context of 

NSPS and NESHAPS, to which the UBR 

also applies, it is up to EPA to select 

emission limits (and any exemptions), 

not the State. 

We disagree that section 110 only 

allows a SIP call if the State is not 

achieving the NAAQS. One commenter 

cites Virginia v. EPA, 108 F.3d 1397, 

1410 (DC Cir. 1997) to support its view, 

but that court was addressing whether 

EPA could impose specific control 

requirements through its NOX SIP call 

and did not reach the holding the 

commenter alleges. Such a holding 

would be inconsistent with the plain 

language of section 110 and the 

legislative history. Congress specifically 

amended CAA section 110(a)(2)(H) in 

1977 to add the phrase, ‘‘or to otherwise 

comply with any additional 

requirements established under this 

chapter’’ to the language, ‘‘is 

substantially inadequate to attain the 

national ambient air quality standard.’’ 

CAA section 110(k)(5), added in 1990, is 


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in accord. In other words, there are 

other instances in which a SIP call may 

be issued. Fundamentally, SIP limits 

must be enforceable and apply 

continuously to meet CAA requirements 

(CAA sections 110(a)(2)(A) and (C) and 

302(k)), and where these requirements 

are not met, a SIP call is warranted. 

Furthermore, as noted already, a 

number of areas in Utah are designated 

nonattainment and have violated, or are 

violating various NAAQS. 

(r) Comment: Some commenters assert 

that allowing EPA to proceed with a SIP 

call here in the absence of data showing 

the UBR has caused specific NAAQS 

violations could set the stage for 

unfettered, arbitrary EPA SIP calls with 

respect to any number of state rules. A 

commenter asserts that EPA’s SIP call 

runs counter to past EPA SIP calls. 

Another asserts that EPA erroneously 

finds that the SIP call does not have 

Federalism implications. A commenter 

references an EPA action under CAA 

section 110(k)(6) with respect to a 

Nevada malfunction rule to argue that 

the SIP call is arbitrary. 

Response: We explain above why we 

think we have a valid basis for the SIP 

call. We note that we have rarely issued 

SIP calls, but in any event, the 

commenters’ fears about potential future 

EPA SIP calls are irrelevant to this 

action. The question is whether we have 

reasonably concluded that the UBR 

renders the Utah SIP substantially 

inadequate as provided under 110(k)(5). 

We conclude we have. Whether other 

SIPs or SIP rules are substantially 

inadequate will depend on the language 

of those rules and facts relevant to them. 

The comment that this SIP call is 

inconsistent with past EPA SIP calls is 

also inaccurate. While in some cases 

EPA has issued SIP calls to address 

specific violations of the NAAQS, EPA 

has also issued a SIP Call notifying 

certain States that their SIPs were 

inadequate to comply with sections 

110(a)(2)(A) and (C) of the CAA because 

the SIPs could be interpreted to limit 

the types of evidence or information 

that could be used for determining 

compliance with and establishing 

violations of emissions limits. See 62 FR 

8314, 8327 (February 24, 1997); October 

20, 1999 letter from William Yellowtail 

to Governor Marc Racicot. We stand by 

our conclusion that the SIP call does not 

have Federalism implications within the 

meaning of Executive Order 13132; we 

are issuing a SIP call as required by 

sections 110(a)((2)(H) and 110(k)(5) of 

the CAA, following a finding of 

substantial inadequacy. Finally, 

regarding the vague reference (without 

citation) to EPA Region 9’s proposal to 

address issues with the Nevada SIP 

using the authority of CAA section 

110(k)(6) (not section 110(a)(2)(H) or 

110(k)(5)), we are unable to ascertain the 

relevance. Section 110(k)(6) provides an 

additional tool to ensure that SIPs are 

consistent with the requirements of the 

Act, and whether it could have been 

used in this instance does not implicate 

whether sections 110(a)(2)(H) and 

110(k)(5) are appropriate tools to use. To 

the extent the commenter is suggesting 

that our SIP call is arbitrary because 

EPA Region 9 has not finalized its 

proposed 110(k)(6) action, we 

respectfully disagree. 

(s) Comment: Utah’s UBR is ‘‘clearly 

less stringent than the CAA and EPA 

rules and guidance.’’ 

Response: We agree that the UBR does 

not meet minimum CAA requirements 

and thus is substantially inadequate. 

C. Sanctions 

(a) Comment: Commenter asserts that 

EPA fails to meet the requirements to 

impose mandatory sanctions under the 

CAA because sanctions can only be 

triggered by a ‘‘finding of substantial 

inadequacy.’’ The commenter also 

asserts that sanctions are unwarranted 

because Utah has always acted in good 

faith to involve all stakeholders, 

including EPA, in an attempt to craft a 

clarified rule. The commenter expresses 

concern that sanctions would harm 

Utah’s economy in these difficult 

economic times and indicates that EPA’’ 

should be circumspect in brandishing 

its sanctions club.’’ 

Response: This rulemaking action 

finalizes our finding of substantial 

inadequacy under CAA section 

110(k)(5), and the State is required to 

submit a SIP revision in response to the 

finding of substantial inadequacy. If the 

State fails to submit the required SIP, 

the 18-month period before mandatory 

sanctions apply under section 179 will 

be triggered. 

Under CAA section 179, whether or 

not Utah has acted in good faith to 

change the UBR is irrelevant; we lack 

authority to forestall the mandatory 

sanctions if EPA determines Utah has 

failed to respond to the SIP call or 

submits an incomplete or disapprovable 

SIP. Utah, however, has the power to 

avoid sanctions and any economic 

impacts to the State by submitting an 

approvable SIP addressing our SIP call. 

We have provided additional time, at 

the State’s request, for the State to make 

its submission. Finally, as we noted in 

our proposal, other States in the Region 

have changed their SSM rules and 

gained EPA’s approval. 

(b) Comment: If EPA were to impose 

statewide sanctions, it would violate 40 

CFR 52.30(b) if the criteria of 40 CFR 

52.30(c) are met by one or more political 

subdivisions within the State. 

Response: No commenter has 

suggested that a political subdivision 

within Utah meets the criteria of 40 CFR 

52.30(c). However, as described in the 

‘‘Final Action’’ section of this action, we 

are deferring a decision on whether to 

impose sanctions under section 110(m) 

and will consider any comments on the 

issue of imposing sanctions under 

section 110(m) if and when we take 

final action on this issue in the future. 

(c) Comment: EPA’s discretion under 

the CAA ‘‘must not be unreasonable or 

arbitrary. Since the EPA has not 

identified any reasons upon which 

consideration of statewide sanctions 

was based, the EPA has not provided 

adequate notice to the public of whether 

the exercise of discretionary authority 

under CAA Section 110(m) is 

appropriate in this case.’’ 

Response: While we provided a 

reason in our proposal—namely, that 

the UBR applies statewide—we are 

deferring a decision on whether to 

impose discretionary sanctions. 

(d) Comment: Transportation and 

mobile sources should not be punished 

for a rule governing industry operations. 

The commenter therefore recommends 

that EPA ‘‘include a ‘Protective finding’ 

in the SIP call for mobile sources,’’ 

which ‘‘would prevent the automatic 

‘freeze’ of conformity and allow for 

operations to continue for at least two 

years after an EPA disapproval takes 

effect.’’ Another commenter expresses 

concern that sanctions would negatively 

impact transit services. 

Response: EPA does not intend to 

‘‘punish’’ anyone. The purpose of 

sanctions is to encourage corrective 

action by the State. The applicable 

sanctions are specified by Congress, not 

EPA. As noted above, sanctions can be 

avoided altogether by Utah’s timely 

submission of an approvable revision to 

the SIP. Regarding the suggestion that 

we provide a protective finding, our 

interpretation is that disapproval of any 

rule submitted in response to this SIP 

call would not result in a conformity 

freeze because the revision at issue is 

not a control strategy SIP revision 

governed by 40 CFR 93.120. The 

metropolitan planning organization 

could continue to make conformity 

determinations even after such a 

disapproval. Also, for the same reason, 

even if highway sanctions are triggered 

by future disapproval of a revised 

breakdown rule, a conformity lapse 

would not occur because we would not 

be disapproving a control strategy SIP 

revision. If highway sanctions are 

triggered, certain projects, such as 

transit projects and highway safety and 


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maintenance projects, could still go 

forward. See 61 FR 14363 (April 1, 

1996), which contains the Federal 

Highway Administration’s sanction 

exemption criteria policy. 

(e) Comment: EPA sanctions on 

transportation funding might slow 

improvements to transportation projects 

across Utah, potentially resulting in 

diminished air quality in both 

attainment and nonattainment areas 

across the state. Sanctions on 

transportation funding might also stifle 

growth. 

Response: See our previous responses. 

As noted, the sanctions would be 

mandatory in certain areas. The 

sanctions can be avoided through 

appropriate State action, and certain 

projects can proceed even if highway 

sanctions are triggered. As noted, we are 

deferring a decision on whether to 

impose discretionary sanctions under 

CAA section 110(m). 

(f) Comment: EPA should not impose 

statewide sanctions, because this would 

punish portions of the state that are in 

compliance with the CAA. 

Response: As noted, we are deferring 

a decision on whether to impose the 

sanctions under CAA section 110(m). 

(g) Comment: Applying sanctions 

only in nonattainment areas rather than 

statewide would be inconsistent with 

the CAA, as the intent of the CAA ‘‘is 

not simply to attain the NAAQS and 

other CAA requirements, but to 

maintain compliance.’’ 

Response: As noted, we are deferring 

a decision regarding the application of 

sanctions statewide. However, we note 

that the CAA provides us with 

discretion to expand the scope of the 

sanctions; it does not require we do so. 

(h) Comment: EPA should apply 

sanctions if Utah fails to correct the 

UBR. 

Response: As noted, mandatory 

sanctions will apply if the relevant 

triggering events occur. We are deferring 

a decision regarding the application of 

discretionary sanctions. See the ‘‘Final 

Action’’ section of this action, above. 

D. Time Period for Response to SIP Call 

(a) Comment: Utah requests that EPA 

grant the entire 18 months allowed by 

section CAA 179(a). Twelve months is 

an extremely short time to gather 

stakeholders, build consensus, draft a 

proposed rule, and allow for public 

participation, especially considering the 

considerable workload UDAQ faces 

aside from this SIP Call. Utah states that 

a response time of less than 18 months 

may cause a change in the prioritization 

and possibly compromise other air 

quality efforts by the State including the 

development of its Regional Haze Rule, 

the development of its PM2.5 SIP 

revision, and efforts to meet the lower 

ozone standard. Another commenter 

believes that 12 months is an 

appropriate response period, while 

another argues for six months. 

Response: In our proposed 

rulemaking action (see 75 FR 70893), we 

proposed that 12 months would be an 

appropriate length of time for Utah to 

respond to this SIP call. We viewed this 

as an acceptable time frame given the 

history with the State of Utah regarding 

the UBR and the time it has taken other 

States to submit SIPs addressing SSM 

rules. We have considered the State’s 

comments and appreciate the resource 

burden a 12-month time frame would 

pose for UDAQ in view of the State’s 

current work with its Regional Haze SIP 

revision, the development of its PM2.5

attainment SIP revision (for three PM2.5

nonattainment areas), and the potential 

for additional resource requirements to 

meet EPA’s forthcoming reconsidered 8- 

hour ozone NAAQS. We also conclude 

that six months may not provide the 

State with sufficient time to revise the 

rule and still provide a reasonable 

opportunity for public input. Therefore, 

as CAA section 110(k)(5) grants EPA the 

authority to establish ‘‘reasonable 

deadlines’’ up to 18 months for a State 

to respond to a SIP call, and in view of 

the resource requirements that this SIP 

call will impose on the State in addition 

to those noted above, we have decided 

to grant the full 18 months for response 

as allowed by the CAA. We consider 

this a reasonable time period for the 

State to revise the rule, provide for 

public input, process the SIP revision 

through the State’s procedures, and 

submit the SIP revision to us. We 

encourage the State to work with us on 

appropriate rule language and to submit 

the SIP revision as soon as possible. 

E. Miscellaneous Comments 

(a) Comment: The commenters 

support EPA’s action, and believe the 

action benefits the health and wellbeing of Utah citizens. 

Response: We acknowledge receipt of 

the comment and the support for our 

proposal. 

(b) Comment: Utah’s UBR does not 

give industry incentive to design, 

operate and maintain equipment to meet 

emission limits at all times. 

Response: We agree. 

(c) Comment: The Utah UBR prevents 

the opportunity for citizen enforcement 

or injunctive relief. 

Response: We agree that the UBR may 

preclude citizen enforcement or 

injunctive relief. 

(d) Comment: EPA has notified Utah 

of the need to change their UBR on 

many occasions. 

Response: We agree. 

(e) Comment: SSM plans should be 

part of Title V permits so that 

information such as emission limits will 

be available to the public. 

Response: This comment is not 

directly relevant to our action today, 

which does not address the treatment of 

SSM plans in Title V permits. 

(f) Comment: EPA should include 

Utah R307–415–(7)(g) ‘‘Startup Shut 

down and Malfunction’’ in its analysis. 

Response: Our review indicates that 

Utah rule R307–415–(7)(g) is part of 

Utah’s Title V operating permit 

regulations and is titled ‘‘Permit 

Revision: Reopening for Cause.’’ Utah’s 

Title V regulations are separate from 

and not approved as part of the SIP. 

Thus, our SIP call authority is not 

applicable to those regulations. We were 

unable to find any discussion of startup, 

shutdown, or malfunction in R307–415– 

(7)(g) and, thus, are unable to respond 

more extensively to the comment. 

V. Statutory and Executive Order 

Reviews 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is 

not a ‘‘significant regulatory action’’ and 

therefore is not subject to review by the 

Office of Management and Budget. For 

this reason, this action is also not 

subject to Executive Order 13211, 

‘‘Actions Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001). 

This action only requires the State of 

Utah to revise Utah rule R307–107 to 

address requirements of the CAA. 

Accordingly, I certify that this action 

will not have a significant economic 

impact on a substantial number of small 

entities under the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq.) because this 

action does not impose any 

requirements on small entities. 

Since the only costs of this action will 

be those associated with preparation 

and submission of the SIP revision, EPA 

has determined that this action does not 

include a Federal mandate that may 

result in expenditures of $100 million or 

more to either State, local, or Tribal 

governments in the aggregate, or to the 

private sector in any one year. 

Accordingly, this action is not subject to 

the requirements of sections 202 or 205 

of the unfunded mandates reform act 

(UMRA). 

In addition, since the only regulatory 

requirements of this action apply solely 

to the State of Utah, this action is not 

subject to the requirements of section 


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21652 Federal Register / Vol. 76, No. 74 / Monday, April 18, 2011 / Rules and Regulations 

203 of UMRA because it contains no 

regulatory requirements that might 

significantly or uniquely affect small 

governments. 

Since this action imposes 

requirements only on the State of Utah, 

it also does not have Tribal 

implications. It will not have a 

substantial direct effect on one or more 

Indian Tribes, on the relationship 

between the Federal Government and 

Indian Tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian Tribes, 

as specified by Executive Order 13175 

(65 FR 67249, November 9, 2000). 

This action also does not have 

Federalism implications because it will 

not have substantial direct effects on the 

States, on the relationship between the 

national government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132 (64 FR 43255, 

August 10, 1999), because it will simply 

maintain the relationship and the 

distribution of power and 

responsibilities between EPA and the 

States as established by the CAA. This 

SIP call is required by the CAA because 

EPA has found the current SIP is 

substantially inadequate to attain or 

maintain the NAAQS or comply with 

other CAA requirements. Utah’s direct 

compliance costs will not be substantial 

because the SIP call requires Utah to 

submit only those revisions necessary to 

address the SIP deficiencies and 

applicable CAA requirements. 

EPA interprets Executive Order 13045 

‘‘Protection of Children from 

Environmental Health Risks and Safety 

Risks’’ (62 FR 19885, April 23, 1997) as 

applying only to those regulatory 

actions that concern health or safety 

risks, such that the analysis required 

under section 5–501 of the EO has the 

potential to influence the regulation. 

This action is not subject to EO 13045 

because it does not establish an 

environmental standard, but instead 

requires Utah to revise a State rule to 

address requirements of the CAA. 

Section 12 of the National Technology 

Transfer and Advancement Act of 1995 

requires Federal agencies to evaluate 

existing technical standards when 

developing a new regulation. To comply 

with the National Technology Transfer 

and Advancement Act, EPA must 

consider and use ‘‘voluntary consensus 

standards’’ (VCS) if available and 

applicable when developing programs 

and policies unless doing so would be 

inconsistent with applicable law or 

otherwise impractical. In making a 

finding of a SIP deficiency, EPA’s role 

is to review existing information against 

previously established standards. In this 

context, there is no opportunity to use 

VCS. Thus, the requirements of section 

12(d) of the National Technology 

Transfer and Advancement Act of 1995 

(15 U.S.C. 272 note) do not apply. 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act of 1995 (44 U.S.C. 3501 et seq.), 

since it only requires the State of Utah 

to revise Utah rule R307–107 to address 

requirements of the CAA. 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by June 17, 2011. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this action for 

the purposes of judicial review nor does 

it extend the time within which a 

petition for judicial review may be filed, 

and shall not postpone the effectiveness 

of such rule or action. This action may 

not be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Authority: 42 U.S.C. 7401 et seq. 

Dated: March 31, 2011. 

James B. Martin, 

Regional Administrator, Region 8. 

[FR Doc. 2011–9215 Filed 4–15–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 112 

[EPA–HQ–OPA–2008–0821; FRL–9297–3] 

RIN 2050–AG50 

Oil Pollution Prevention; Spill 

Prevention, Control, and 

Countermeasure (SPCC) Rule— 

Amendments for Milk and Milk Product 

Containers 

AGENCY: Environmental Protection 

Agency. 

ACTION: Final rule. 

SUMMARY: The U.S. Environmental 

Protection Agency (EPA or the Agency) 

is amending the Spill Prevention, 

Control, and Countermeasure (SPCC) 

rule to exempt all milk and milk 

product containers and associated 

piping and appurtenances from the 

SPCC requirements. The Agency is also 

removing the compliance date 

requirements for the exempted 

containers. 

DATES: This final rule is effective on 

June 17, 2011. 

ADDRESSES: The public docket for this 

rulemaking, Docket ID No. EPA–HQ– 

OPA–2008–0821, contains the 

information related to this rulemaking, 

including the response to comments 

document. All documents in the docket 

are listed in the index at http:// 

www.regulations.gov. Although listed in 

the index, some information may not be 

publicly available, such as Confidential 

Business Information (CBI) or other 

information the disclosure of which is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically at http:// 

www.regulations.gov or in hard copy at 

the EPA docket, EPA/DC, EPA West, 

Room 3334, 1301 Constitution Ave., 

NW., Washington, DC. The Public 

Reading Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number of the Public Reading Room is 

202–566–1744, and the telephone 

number to make an appointment to view 

the docket is 202–566–0276. 

FOR FURTHER INFORMATION CONTACT: For 

general information, contact the 

Superfund, TRI, EPCRA, RMP, and Oil 

Information Center at 800–424–9346 or 

TDD at 800–553–7672 (hearing 

impaired). In the Washington, DC 

metropolitan area, contact the 

Superfund, TRI, EPCRA, RMP, and Oil 


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