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Citation: 76 Fed. Reg. 21639 2011

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

temporary safety zone. An environmental analysis checklist and a categorical exclusion determination will be available in the docket where indicated under ADDRESSES.
Listof Subjects in 33 CFRPart165

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

m 1. The authority citationfor 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 ofHomeland Security Delegation No. 0170.1.
* 2.Add section §165.T09-0165 toread

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. Clairwithin a 420 foot radius ofthe fireworks barge launch site located offthe shore ofGrosse Pointe Shores, MI at position 42°27'15.06" N., 082o51'59.01" W. All geographic coordinates are North American Datum of 1983 (NAD 83). (b)Effective andEnforcementPeriod. 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 ofthis part, entry into, transiting,

or anchoring within this safety zone is prohibited unless authorized by the Captain ofthe PortDetroit, orhis designated on-scene representative. (2)This safety zone is closedto all vessel traffic, except as maybe permitted by the Captain ofthe Port Detroit or his designated on-scene representative. (3)The "on-scene representative" of the Captain ofthe Portis any Coast Guard commissioned, warrant, or petty officer who hasbeen designated bythe Captain ofthe Portto act on his behalf. The on-scene representative ofthe Captain ofthe Portwill be aboard either

a Coast Guard or Coast Guard Auxiliary vessel. The Captain ofthe Port orhis 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 ofthe 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 bythe Captain ofthe Port orhis

on-scene representative.

Dated: April 5, 2011.
J.E. Ogden, Captain,U.S. CoastGuard,Captain ofthe Port Detroit.
[FRDoe. 2011-9256 Filed4-15-11; 8:45 am]

BILLING CODE 9110-04-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52 [EPA-R08-OAR-2010-0909; FRL-9294-9]
Findingof Substantial Inadequacy of Implementation Plan; Callfor 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) ofthe 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 withthe requirements ofthe CAA andissuing a call for the State ofUtahto 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 thathave been relied on to

ensure attainment or maintenance ofthe 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 toEPA within 18 months ofthe effective date ofthis final rule. IfEPA finds thatUtah has failed
to submit a complete SIP revision as required by this final rule or ifEPA disapproves such a revision, such a finding or disapproval will trigger clocks for mandatory sanctions and an obligation for EPA to impose aFederal Implementation Plan (FIP). IfEPA 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 staythe imposition ofthe 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

onwhether toimpose sanctions under section 110(m) and will consider any comments on the issue ofimposing sanctions under section 110(m) ifand when we take final action on this issue in the future.

DATES: EffectiveDate:This final ruleis effective May 18, 2011. ADDRESSES: EPA has established a docketfor this action under Docket ID No. EPA-R08-OAR-2010-0909. All documents in the docket are listed on the http://www.regulations.govWeb 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 willbe 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 ifat all possible, you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy ofthe docket. You may view the hard copy ofthe 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 ofthis document, the following definitions apply: (i) The words or initialsAct or CAA

mean or refer to the Clean AirAct, unless the context indicates otherwise. (ii)The words EPA, we, usor our
mean or refer to the United States Environmental Protection Agency. 

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(iii)The initials NAAQS mean or refer
to National Ambient Air Quality Standards. (iv)The initialsNOx mean orrefer to nitrogen oxides. (v)The initials PM 2.5 mean orrefer to particulate matter with an aerodynamic diameter less than or equal to anominal 2.5 micrometers.

(vi)The initials PMo mean or refer to particulate matter with an aerodynamic diameter less than or equal to anominal 10 micrometers.

(vii)The initialsppm mean or refer to parts per million. (viii)The initials SIPmean or refer to State Implementation Plan. (ix)The initials S0 2mean or refer to sulfur dioxide.

(x)The initials SSMmean or refer to startup, shutdown, and malfunction.

(xi)The words Stateor Utahmean the State ofUtah, unlessthe context indicates otherwise. (xii)The initials UBRmean or refer to the Utah unavoidable breakdown rule, R307-107. (xiii)The initials UDAQmean orrefer
to the Utah Division ofAir Quality, Utah Department ofEnvironmental Quality. (xiv)The words 1982Policymean 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 1983Policymean 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 1999Policymean or refer to the September 20, 1999EPA 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 ofContents

I.Background II.FinalAction III. Summary ofBasesfor Finding of Substantial Inadequacy IV. Issues RaisedbyCommenters andEPA's Responses A. Request for CommentPeriod Extension/

Procedural Issues B.Authority and Basis for aSIP 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 withthe requirements ofthe CAA.' We also proposed toissue a SIP call to require the State ofUtah to revise the SIP to correct the inadequacies. In

our proposal, we stated that, "Utahrule R307-107 contains various provisions that are inconsistent with EPA's interpretations regarding the appropriate treatment ofmalfunction
events in SIPs andwhich 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 nottreat all exceedances of SIP and permit limits as violations; (2)couldbe 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 AirPollutants (NESHAPS). We explained why we

were proposing to findthat 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 ofmandatory sanctions under CAA section 179(a) and requested
comment onwhether we should exercise our discretionary authority to impose highway funding sanctions in all areas ofthe State.

We requested comments on all aspects ofour proposed actionby 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 ofcommenters, particularly citizens and environmental groups, supported ourproposed action. We also

1Our proposal provided detailed background information regarding EPA's CAA interpretations with respect to SIP malfunction provisions, the history ofUtah 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 forsuch background information. received a number ofcomments, primarily from State agencies and industrial facilities and groups, that

were critical ofour proposed action.

II. Final Action

We have considered all comments submitted andprepared responses, which are contained in Section IV of this action, "Issues Raised by Commenters and EPA's Responses." None ofthe 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 ofproposed rulemaking (see 75 FR 70888) and in this action, EPA finds thatthe Utah SIP is substantially inadequate to attain or maintain the NAAQS or to otherwise comply with requirements ofthe CAA dueto 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 thathave been relied onin the SIP to ensure attainment and maintenance ofthe NAAQS or meet other CAA requirements. Pursuant to sections 110(a)(2)(H) and 110(k)(5) of the CAA, EPA is requiring thatthe State revise the SIP to remove R307-107 or revise it tomake itconsistent with CAA requirements. Utah must submit a revised SIP responding to this SIP call within 18 months of the effective date ofthis final rule.

IfUtah fails to submit a complete SIP revision that responds to this final SIP call, section 179(a) ofthe CAA provides for EPA to issue afinding of State failure. Such a finding will start mandatory 18-month and 24-month sanctions clocks and a 24-month clock for promulgation ofa 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 andrestrictions on highway funding.

EPA issued an order ofsanctions 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-

2We provide a summary ofthe bases for our finding ofsubstantial inadequacy in Section III of this action, "Summary ofBases for Finding of Substantial Inadequacy." 

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70894), we have decided thatthe order ofsanctions specified in 40 CFR 52.31 will apply here for the same reasons discussed in the preamble tothat rule. Thus, ifUtah fails to submitthe 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 tothe 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 ofsanctions will also apply.

Mandatory sanctions under section 179 ofthe CAA generally apply onlyin nonattainment areas. By its definition, the emission offset sanction applies onlyin areas required to have apart 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 ofthe State that are subject to

or required tohave in place the deficient SIP and forthe 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 allNAAQS pollutants.

In addition to sanctions, ifEPA finds that the State failed to submit a complete SIP revision thatresponds 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 ofthe finding or the disapproval ifthe deficiency has not been corrected.

In its proposed rulemaking action (75 FR 70893-70894), EPA also requested
comment on whether itshould 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 willfully

3An exception to this, notrelevant here, is areas located inthe Ozone Transport Region, which are required to have apart D NSRprogram regardless ofthe area's designation. See CAA section 184(b)(2). respond to relevant comments submitted in response to the November 19, 2010 notice ofproposed rulemaking.

III. Summary ofBases forFinding of Substantial Inadequacy

This section provides abriefsummary ofthe 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 aviolation ofthese regulations." This generic exemption, applicable to all Utah SIP limits, precludes any enforcement when there is an unavoidable breakdown. Our interpretation ofthe CAA is that an exemption from injunctive reliefis

never appropriate, and that an exemption from penalties is only appropriate in limited circumstances. 4 Contrary to CAA section 302(k)'s definition ofemission limitation,the exemption in the UBR renders emission limitations in the Utah SIP less than continuous and, contrary tothe requirements ofCAA sections 110(a)(2)(A) and (C), undermines the ability to ensure compliance with SIP emissions limitations relied on to achieve the NAAQS and otherrelevant CAA requirements at alltimes. Therefore, the UBRrenders 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 toprevention of significant deterioration (PSD)and nonattainment NSR permits (sections 165 and 173), and provisions related to protection ofvisibility (section 169A). 2.R307-107-1 also applies to Federal technology-based standards like the NSPS and NESHAPS thatUtah has incorporated by reference to receive delegation ofFederal 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

4As we explainin ourresponse tocomments, the UBR lacks criteria thatare sufficiently detailedor robusttoensure thatpenalties are available atall appropriate times. inadequate because R307-107-1 improperly provides an exemption and criteria not contained in and not sanctionedby the delegated Federal standards.

3.R307-107-2 requires the source to submitinformation regarding an unavoidable breakdown to the executive secretary ofUtah's Air Quality Board (UAQB) and indicates thatthe information "shall be usedby the executive secretary ofthe UAQB in determining whether aviolation has occurred and/or the need offurther 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 anon-violation determination. This isinconsistent 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 ofEPA and citizens toindependently exercise enforcement discretion granted by the CAA, it is substantially inadequate to comply with CAA requirements related
to enforcement. Because itundermines the envisioned enforcement structure, it also undermines the ability ofthe 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, andmaintain their facilities so asto 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 forCommentPeriod Extension/Procedural Issues (a)Comment:Two comment letters requested an extension ofthe comment period ofup to 60 days. Other
commenters did not specifically request

an extension,but stated thatthey believed the comment period was too short. Some commenters complained that theproposal 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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2010 toJanuary 3, 2011 (see 75 FR 79327 (December 20, 2010)), providing

atotal of45 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 (allofwhich 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 toissue a SIP call.

(b) Comment:A commenter asserts that EPA's notice isdefective because it fails to provide interested parties with sufficient notice offacts, policies and

case law relevant tothe 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 ofsubstantial inadequacy and SIP call in our proposed rulemaking action. See 75 FR 70891-70893.

(c) Comment:A commenter asserts that itcannot provide meaningful
comments and analysis ofthe 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 ofourrulemaking 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 issuingthe proposal. The commenter had the same reasonable opportunity to comment on

our proposal as any other commenter andprovided substantive comments.

We note thatwe 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.AuthorityandBasis fora SIPCall (a)Comment:The proposal is inconsistent with section 110 ofthe CAA. Commenters assert thatEPA's authority toissue a SIP call underCAA section 110(k)(5) islimited to ifthe Administrator finds the applicable implementation plan for an area is substantially inadequate to attain or maintain therelevant NAAQS or to otherwise comply with any requirement ofthat chapter. Commenters assertthat EPA has made no showing or disclosure ofrelevant 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 thatthe 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 itsreasoning 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 ofemission 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 ofthe SIP is maintained and protection is ensured as long asthe 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 ofthe 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 ofair pollutants on a continuous basis." These requirements

are intended to ensure attainment and maintenance ofthe NAAQS, protection ofincrements, and protection of visibility at all times, notjust occasionally or intermittently. The enforceability ofthe SIP is fundamental
to the SIP's adequacy under the CAA.

The UBRprovides an exemption from emission limits in the Utah SIP (and permits) for excess emissions causedby

an unavoidable breakdown-"emissions resulting from unavoidable breakdown will not be deemed a violation ofthese regulations." See R307-107-1. Our longstanding view isthat all exceedances are violations and mustbe 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 actresponsibly in taking necessary measures to ensure compliance with emissions limits,
preserves thepotential for injunctive relief, preserves the potential for penalties, except in limited circumstances, and is consistent with the notion that protection ofhealth under the CAA is not a sometime requirement. Itis also consistent with CAA 302(k)'s definition ofemission 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 therequirements of sections 110(a)(2)(A) and (C), undermines the abilityto ensure compliance with emissions limitations and the NAAQS and other relevant CAA requirements at alltimes. Therefore, the UBR renders the Utah SIP substantially inadequate to attain ormaintain the NAAQS or to comply with other CAA requirements.

We also explained in ourproposal that R307-107-2 appears to give the executive secretary ofthe 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 submittedby a source "shall be used by the executive secretary in determining whether aviolation has occurred and/or the need offurther enforcement action." We explained that this provision is inconsistent with the enforcement structure ofthe 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 ofEPA and citizens toindependently exercise enforcement discretion granted by the CAA, it is inconsistent with CAA requirements related to enforcement and, thus, renders the SIP substantially inadequate. Preclusion ofEPA and citizen enforcement could make it impossible topenalize source noncompliance (where the State may have erroneously concluded that 

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exceedances were causedby an unavoidable breakdown) or gain source compliance through injunctive relief. Also, potential preclusion ofEPA and citizen enforcement reduces the incentive for sources to comply because it reduces the likelihood ofindependent evaluation ofunavoidable breakdown claimsby a court in an enforcement actionbrought byEPA or citizens.

The thrust ofseveral comments is that

we have not presented facts or empirical evidence thatthe UBRis not working or that shows any measured or modeled impact on attainment or maintenance of

aNAAQS 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 linkbetween any specific unavoidable breakdown excess emissions and violations ofthe NAAQS
to conclude that the SIP is substantially inadequate. Itis our interpretation that the fundamental integrity ofthe CAA's SIP process and structure is undermined ifemission limits relied on tomeet CAA requirements can be exceeded without potential recourse by any entity granted enforcement authority by the CAA.We

are not restricted toissuing SIP calls only after a violation ofthe NAAQS has occurred or onlywhere 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 havebeen, are being, and willbe relied on to attain and maintain the NAAQS and meet other CAA requirements. Nor are werequired to wait for ajudge to rule in a specific enforcement action that R307-107-2 has

apreclusive effect on EPA or citizen enforcement to determine that the provision is inconsistent with the CAA andrenders the SIP substantially inadequate. 5

Nonetheless, we note the following: 1. Several counties along the Wasatch Front in Utah (whichincludes the largest population centers in the State)

are designated nonattainment for PMo, PM2.5, and SO2, and some have recorded violations ofthe 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 ofthe worst airquality inthe country. Exceedances ofemission limitations due to unavoidable

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 ofany credible evidence in enforcement actions with respect to SIP emissions limits. See 62 FR 8314, 8327 (February 24, 1997). breakdowns increase pollutant levels in the airin 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 canbe very high, far exceeding SIP limits. Forexample, data submitted by Holly Refining (Holly)in Woods Cross, Utah, tothe State ofUtah indicate that Holly flared nearly 11,000 pounds ofSO 2in a 9-hourperiod during

a claimed breakdown event in June 2006 and thousands ofpounds during other claimed breakdown events ofvarying duration (some on the order ofone hour)between 2006 and 2010. Byway ofcomparison, theJanuary 12, 2010 permit limit for Holly's SRU tailgas incinerator is 1.6 tons (3,200 pounds) of SO 2per day. 7During malfunctions, refineries in the Billings, Montana, area sometimes flared thousands ofpounds ofSO2 over a two- or three-hour period, whereas the State had modeled attainment ofthe 3-hour SO 2NAAQS based on a routine flare emissions limit of 150 pounds per three hours. If Montana had modeled thehigher emissions, other emission limits would have had to havebeen greatly curtailed for the area to demonstrate attainment of the NAAQS. Our experience indicates that the flare emissions atHolly 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 inthe 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 ofproposed rulemaking, also indicates that malfunction emissions can dwarfSIP 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.

6 In 2005, the State submitted a maintenance plan
for PM10 for SaltLake County. The State's dispersion modeling, which we proposedto disapprove because offlaws, projected values very close to the 150 pg/m 3 24-hour NAAQS at the North Salt Lake monitor.Ifthe State had used assumptions we had proposed, the projected values would have been higher.Malfunction emissions are ofparticular concern where modeling predicts values justunder the NAAQS. In its 2005 SIP submittal for PM10,the State proposed a combined S02 emission limit for Holly, which included all external combustion process equipment and all gas-fired compressor drivers, of 4.7 tons per day. We also proposed other bases for our finding ofsubstantial inadequacy. As

we indicated in our notice ofproposed rulemaking, the UBRnot only applies to SIP limits,but also topermit limits and national technology-based standards like the NSPS and NESHAPS. See 75 FR 70892.

This means a source could use the provisions ofR307-107 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, andthe same logic applies to LAER limits. See, e.g., 1977 memorandum entitled "Contingency Plan for FGD Systems During Downtime as a Function ofPSD," from Edward E. Reich
to G.T. Helms andJanuary 28, 1993 memorandum entitled "Automatic or Blanket Exemptions for Excess Emissions During Startup and Shutdowns under PSD," fromJohn B. Rasnic to Linda M. Murphy. As noted, in order to ensure non-degradation ofair quality at all times underthe PSD program andprotection ofthe NAAQS
atall times, itis necessary for a source to comply with itspermit 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); andthe 1999 Policy, Attachment, at 3.9 Furthermore, in SierraClubv. 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 ofSSM were inconsistent with CAA section 302(k), which requires continuous compliance with emission limits. Thus, R307-107- 1is 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.

8 SomeNSPS do notprovide anyreliefduring
SSM.For example, the SO 2 and NOxlimits under part 60, subpartDb, apply atall times. See 40 CFR 60.45b(a) and 60.46b(a).

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

a stateincludes NSPS or NESHAPS inits 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." 

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(b) Comment:Commenters state that EPA is incorrect in its interpretation and reliance on a number ofcourt decisions used in part to justifythe SIP Call. Commenters indicate thatMichigan DEQv. BrownerandArizonaPublic ServiceCo. v. EPA are not relevant. Commenters state that EPA fails to mention other cases, such as SierraClub

v. GeorgiaPower,which commenters allege are more on point and do not support EPA's proposed SIP call. Commenters also criticize EPA's citation ofSierraClubv.EPA, and claim that EPA's "broad interpretation" is at odds with aJuly 2009 letter from Adam Kushner to industry.

Response:Our action isbased on our longstanding interpretation ofthe CAA, which isreflected in our 1999 and earlier policy statements, among other locations. Aswe noted in our proposal (see 75 FR 70890), ArizonaPublic ServiceCo.v. EPA, 562 F.3d 1116, 1129 (10th Cir. 2009) held that our 1999 Policy was a "reasonable interpretation ofthe Clean Air Act." The court in MichiganDEQv.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 heldthat "EPA reasonably concluded that Michigan's proposed SIP revision did
not meet the requirements ofthe CAA."

Contrary to commenters' arguments, these cases are relevant to our action. The courts agreed with EPA thatit isnot appropriate under CAA section 110 to provide or approve an outright exemption from SIP emission limitations, andtheMichiganDEQcourt upheld EPA's determination that Michigan's defective SSM revisions did
not meet the requirements ofthe CAA.

Commenters suggest that these cases

are irrelevant because theydidn'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 ofCAA section 110-then logic leads to the conclusion that theprovision is substantially inadequate tomeet section 110's requirements with respect to SIP compliance and enforceability.

EPA's past approval ofa provision that fails tomeet the minimum requirements ofthe Act does notrender the provision compliant, something EPA plainly acknowledged in its various policy statements over the years. The SIP call provisions ofthe Act provide EPA with one ofthe onlymeans to revisit SIP decisions thatmay have been wrong or ill-considered, or thathave been brought into greater focus with the passage oftime and development of relevant knowledge and case law.

Contrary to commenters' assertion, we did refer to SierraClubv. GeorgiaPower 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, aproposition

we agree with and have acted in accordance with here. See EPA's December 5, 2001 clarification ofthe 1999 Policy, which is inthe docket. If

we thought the policytrumped the approved SIP, there would be no need
to issue a SIP call now. As SierraClub

v. GeorgiaPowerCo. suggested, we are issuing a SIP call to ensure thatthe Utah SIP meets the minimum requirements of the CAA. See 443 F.3d 1346, 1355 (11th Cir. 2006).

Regarding SierraClubv. 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 itaddressed the hazardous air pollutant (HAP) regulations. In particular, the court significantly relied on section 302(k)'s definition ofemission standard (as a requirement that limits the quantity, rate, or concentration of emissions ofair 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 thatthe UBR does not provide an express exemption from SIP and other emission limits. The UBR states that "emissions resulting from an unavoidable breakdown will notbe deemed a violation ofthese 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 tothe general duty provisions inEPA's MACT provisions. The SierraClubcourt found these general duty requirements were not a substitute for a 112 emission standard. Here, we find the emissions minimization requirements inthe UBR

are not a substitute for continuously applicable emission limitations that support attainment and maintenance of the NAAQS, and protection ofPSD increments and visibility. We also disagree thatour views contradict the views Adam Kushner (EPA'sDirector ofthe Office ofCivil Enforcement) expressed in hisJuly 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 ofthe 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 SSMprovisions] will remain in effect following the issuance ofthe mandate in SierraClub,EPA recognizes that the legality of such

source category-specific SSMprovisions
may nowbe called into question, and EPA intends to evaluate them in light of the court's decision." EPA has since revised or proposed torevise several MACT standards with source-specific malfunction provisions to eliminate the exemptions from compliance during periods ofmalfunction. 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 onpolicy or guidance that has not become applicable law. The 1999 Policy EPA cites asjustification for the SIP Call has never been subjected to the legal requirements ofnotice and public rulemaking under the Administrative Procedures Act. In addition,
commenters assert that ifEPA 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 alterthe status ofany existing malfunction, startup, or shutdown provisions in a SIP thathad been approvedby EPA.

Response:The 1999 Policy reflects

our interpretation ofthe CAA. We have
not treated it asbinding on the States or asserted that itchanged 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 inthis case. Through this rulemaking action, we have evaluated provisions ofthe Utah SIP to determine whether they are consistent with our interpretation ofthe CAA as reflected in ourpolicies. We provided
commenters with the opportunity to

10"Re-Issuance ofClarification-State Implementation Plans (SIPs): Policy Regarding Excess Emissions During Malfunction, Startup, and Shutdown," Eric Schaefer and John Seitz, December 5, 2001. 

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comment on the proposed SIP call and

ourbasis for it, and are onlyfinalizing the SIP call after carefully considering commenters' comments."I To the extent

some commenters may be arguing that

we must conduct national rulemaking

on our policybefore we can conduct SIP call rulemaking with respect to a specific State malfunction provision, we find no basis forthis 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 ofour action

are reasonable.

Commenters emphasize our failure to specifically cite our December 5, 2001 clarification to the 1999 Policy, in which we indicated thatthe 1999 Policy

was not intended to "alterthe status of
any existing malfunction, startup or shutdown provision in a SIP thathas 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 torevise the SIP. See GeneralMotorsv. UnitedStates,496 U.S. 530, 540-541 (1990). In other words, the 1999 Policy did notmodify existing SIP provisions. Here, "inthe
context offuture rulemaking" as contemplated by the 2001 clarification,

we have considered "the Guidance and the statutory principles on which the Guidance isbased." See December 5, 2001 clarification.

One commenter argues thatthe 2001 clarification "clarifies the 1999 Policy does not apply to" the UBR. On the contrary, because the UBR addresses the
treatment ofexcess 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 ofthis clarification and take steps to insure that excess emissions provisions in these SIPs are consistent with the attached guidance." As provided above,

11Wehave applied the interpretation reflected in

our policies in a number ofother rulemaking actions. See, e.g., the Billings/Laurel Federal Implementation Plan, 73 FR 21418 (April 21, 2008); approvals ofColorado 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 SSMrules, 63 FR 8573 (February 20, 1998); approval ofMaricopa County, Arizona SSM rules, 67 FR 54957 (August 27, 2002).

12We included the 2001 clarification inthe
docket forour proposal but didnot cite it specifically. the sole purpose ofthe 2001 clarification was to expressly state that the policy-standing alone-did not

serve to change the terms ofan approved SIP.

(d) Comment:EPA's proposed SIP call is justified regardless ofitsreliance on guidance. Commenter explains that Utah's SIP cannot possibly assure the NAAQS and other CAA requirements will be met ifthe SIP allows a blanket exemption from emission limits, particularly because the effectiveness of Utah's SIP ispremised upon compliance with emission limits.

Response: Our SIP call relies on our interpretations ofthe 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 NSPSin 40 CFR 60.8(c).

Response:Emission limitations in SIPs must ensure ambient levels of criteria pollutants that attain and maintain the NAAQS. Forpurposes 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 ofthe SIP. Thisprinciple 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 ofPSD increments. Thus, EPA cannot approve an affirmative defense provision that would undermine the fundamental requirement of attainment and maintenance ofthe NAAQS,

or any other requirement ofthe Clean Air Act. See sections 110(a) and (1)ofthe Clean
Air Act * * * Accordingly, an acceptable affirmative defense provision may only apply

to actions forpenalties, but not to actions for injunctive relief.

Generally, since SIPs must provide for attainment and maintenance ofthe national ambient air quality standards and the achievement ofPSD 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 ofan ambient air quality standard." Similarly, in our 1982 Policy, we stated the following:

"The rationale forestablishing 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 ofensuring health-based standards are met andmaintained. 13

NSPS and other technology-based standards, on the other hand, donot have to ensure attainment ofthe 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 ofthe best system of emission reduction which (takinginto
account the cost ofachieving 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 ofexcess emissions during SSMunder health-based standards addressed in SIPs andthe NSPS technology-based standards. 14 In the SIP context, and in the context of SIP-based permits, EPA's interpretation ofthe CAA isreasonable, and it isreasonable for EPA to require that Utah revise the UBR or remove itfrom the SIP. (f) Comment:The Utah UBRhasbeen federally-approved in the SIP for over 30years. Based on empirical UDAQ monitoring since that approval, the Utah UBR has not contributed to a NAAQS exceedance.

Response:As indicated above, we disagree thatthe commenters' suggested test-whether there is demonstrated proofthata specific excess emission
event allowed under the UBRhas contributed to a specific monitored

13The 1999 Policy defines "automatic exemption"

as "a generally applicable provision ina SIPthat would provide that ifcertain conditions existed during aperiod ofexcess emissions, then those exceedances would notbe considered violations." The UBRprovides such an automatic exemption: "Except as otherwise provided inR307-107, emissions resulting from an unavoidable breakdown will notbe deemed a violation ofthese regulations." In this notice, we also refer to this as

an outright exemption oran exemption.

14As we noted in our proposal and elsewhere in this action, however, the 2008 SierraClubcase held thatEPA rules exempting major sources from technology-based NESHAP standards during SSM periods violated the CAA's requirement in section 112 that some standard meetingthat provision's substantive requirements apply continuously. SierraClubv.EPA,551 F.3D1019, 1028 (DC Cir. 2008). 

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NAAQS exceedance-is the test we must use. As stated above, for purposes ofdemonstrating attainment and maintenance ofthe NAAQS (and for protecting PSD increments and visibility), States assume source compliance with SIP emission limitations at all times. 15Thus, itis reasonable toinsist thatthe 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 ifthe commenters

were correct thatthe solereasonable test is whether the UBRhas contributed to

a monitored exceedance ofthe 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 onmonitored violations ofthe NAAQS, Utah has had areas designated nonattainment for various pollutants over the course ofmany years and continues to havenonattainment

areas for PM2.5,PM 10, and S0 2.Areas in Utah will likelybe designated nonattainment for ozone again in the future. As noted in aprior response, malfunction-based emissions at stationary sources can lead to large emissions in a short period oftime, and it isreasonable to conclude that excess emissions during malfunctions have contributed and/or have the potential to contribute to NAAQS exceedances and violations in theurbanized areas of Utah.' 6IfEPA promulgates new, more stringent NAAQS, the potential for NAAQS exceedances and violations only increases.

Several commenters emphasize that the UBRhasbeen in the SIP for more than 30years andthat EPA has approved itmore 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 frombeing violations ofthe Air Conservation Regulations" and only after opining that exemptions granted under the UBR would not apply

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 atreceptor locations throughout anarea, whereas monitors are limited in number and location. See, e.g., 40 CFR 51.112; 40CFR part 51, appendix W.

16Basedon data inEPA's Air Quality System
database for the years 2005 through 2010, there

were 171 days during which the PM2.5NAAQS was exceeded at a monitor inUtah and 154 days during which the 2006 ozone NAAQS was exceeded at a monitor inUtah. as amatter ofFederal law. See 44 FR 28688, 28691 (May 16, 1979).

Second, our approval ofthe UBR preceded the 1982 and 1983 Policies. These memoranda to EPA's Regional Administrators were issued inresponse to requests for clarification ofEPA'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 UBRto these policies reveals that the UBRdid not and does not comport with the interpretation reflected in the policies. Forexample, the 1982 Policy
states thatEPA 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 ofits 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 asviolations, does not require the State toinitiate a proceeding to notify the source ofits 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 ofthe UBR in 1994 with no preamble discussion except to note that the Utah air rules hadbeen 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 thatEPA evaluated the substance ofthe UBR or any ofthe other re-numbered provisions that were already included as part ofthe approved SIP. Id.We also note that the 1994 approval preceded our 1999 Policy, which re-alerted EPAregional 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 ofthe 1999 Policy, we approved another renumbering ofthe Utah SIP, including

a renumbering ofthe UBR. Again, EPA did not consider the substance ofthe UBR, but did expressly reference EPA's ongoing concerns with SIP rules and specifically noted that Utahhad committed to address those concerns, which included concerns withthe UBR. We indicated thatwe 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 otherwords, we indicated in the 1979 proposal that preceded our 1980 approval that we could not fully
approve the UBRbecause it provided exemptions fromviolations, and in our subsequent actions, we did not reanalyze the adequacy of therule. 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 notedin our proposal, Utah acknowledged thatthe 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 tothe UBR despite

our substantial efforts tohelp Utah develop a revised rule that would meet CAA requirements. Id. The delay that has resulted from our attempt toreach

a consensus-based solution does not diminish our authority to issue a SIP call.

(g)Comment:Commenter asserts that "there must be evidence ofnew information that would explain how Utah's SIP has somehow been transformed from adequate to substantially inadequate." Commenter cites CleanAirImplementationProject

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 CleanAir ImplementationProject v. EPAdid not hold that a SIP previously found byEPA
to be adequate could not be subsequently found tobe inadequate absent evidence ofnew 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 offacts. 1 7

17CleanAirImplementationProject v. EPA addressed a challenge to EPA's credible evidence rule and held that the challenge was notripe for decision. 

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As a practical matter, ourpast decisions are not infallible. They reflect

a decision made at a particular point in time by a particular set ofindividuals based ona particular understanding (or misunderstanding) offacts, policy, and law. Our 1999 Policy expressly recognizes this: "A recent review of SIPs suggests that several contain provisions that appear tobe inconsistent with this policy, eitherbecause theywere inadvertently approved after EPA issued the 1982-1983 guidance or because they

were part ofthe SIP at thattime, 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 ofthe 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 hadbeen 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 canbe viewed as refreshing EPA's institutional memory. It reiterated and clarified EPA's longstanding interpretation and provided direction to EPA'sregional offices toreview SIPs from their respective States. This caused EPA Region 8 to review SIPs for Utah andthe 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 ofthe Utah rule revealed thatit 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 offacts here indicates that EPA's 1980 approval ofthe UBR was illconsidered because even then ourbasic interpretation that all excess emissions
must be treated as violations applied. As discussed in our proposal for this action, EPA said inits 1979 proposal on the UBRthat EPA "may not fully
approve Regulation 4.7 because it exempts certain excess emissions from being violations ofthe 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 almostno explanation, EPAjustified its approval based on a conclusion that any exemptions granted by Utah "are not applicable as a matter offederal law." See 44 FR 28691. This did not obviate the deficiency in the UBR. Also, EPA's interpretation ofthat time-that exemptions granted by Utah would not affect Federal enforcement-could be questioned and rejected in court. While

some commenters state thatEPA'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, etal.,
comment letter at 5versus 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 thatUtah's non-violation determinations underthe 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 thatthe 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 isburdened by the uncertainty ofwhether EPA or citizens may pursue independent enforcement where the Utah executive secretary decides an excess emission is
not aviolation. (h)Comment:Commenters state that EPA mischaracterizes the UtahUBRin that Utah's rule does not allow for outright exemptions from BACT or LAER limits, and does not undermine protection ofthe NAAQS, PSD increments, or visibility.

Response:We do not agree. Under the UBR, excess emissions resulting from



### 1'

In 1997, EPA initiated an enforcement action against the Phillips Petroleum refinery inDavis County, Utah when the State declined to pursue enforcement. Among other things, EPA alleged that Phillips had violated its one-hour emission limit contained inthe Utah SIP for the Salt Lake County PM10 nonattainment area. The State, with little or

no apparent analysis, decided that all ornearly all ofthe more than 1,000exceedances EPA cited in its complaint against Phillips were caused by unavoidable breakdowns and were notviolations under the UBR. Phillips alleged in pleadings that the State's decisionprecluded EPA enforcement as

a matter oflaw. 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 inthe docket for this action various pleadings and documents from the Phillips enforcement case that reflect the facts cited herein.

19We also mayhave beenjustified using our authority under 110(k)(6) torevise therule, but have decided the better course here is to provide the State the opportunity torevise the SIP through the SIP call process. unavoidable breakdowns are not violations. We consider that an outright exemption, which prevents enforcement action where, for example, itmay be needed to protect the NAAQS. The commenter's premise-that unavoidable breakdowns will occur regardless ofthe rule-assumes a continued right to pollute regardless ofwhether such emissions might undermine the very purpose ofthe SIP-attainment and maintenance ofthe 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 topursue injunctive reliefifitdecides 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, thatthe excess emissions were caused by an unavoidable breakdown,

orwhere the excess emissions were in fact causedby an unavoidable breakdown as defined in the UBR. It is

our interpretation that injunctive relief
must be preserved regardless ofthe State determination and regardless of the cause ofthe exceedance. Protection ofthe NAAQS should not be subservient to a source's desire to continue operating as ithas, 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 ofthe NAAQS, and no defense toinjunctive reliefis appropriate. See the 1982, 1983, and 1999 Policies.

Also, as to UDAQ's enforcement discretion, we find itlikely that the UBR would prevent the State from obtaining injunctive reliefwhere 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 theunavoidable breakdown rule does not limit EPA's abilityto overfile or a third party's abilityto file a citizen's suit.Another
commenter states thatEPA lacks a reasonable basis to presume "uncertainty" about reserved enforcement authority.

Response:The UBRlanguage in question reads: "The submittal ofsuch information shall be used by the executive secretary in determining whether aviolation has occurred and/or the need offurther enforcement action." 

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The plain language appears to grant the executive secretary the authority to determine whether excess emissions constitute a violation or not. Our approval ofthatlanguage could be construed by acourt as ceding that authority tothe State. A court could conclude thatit should not resort to the interpretation we offered with our 1980 approval-that an exemption granted by the Utah executive secretary wouldnot apply as a matter ofFederal lawbecause the language ofthe 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 notbind them

or other entities in subsequent enforcement actions.

The State suggests thatit would not "forget EPA's interpretation ofthe law." But, in its comments, the State does not say it agrees with EPA's interpretation

or that itor another entity wouldnot argue against EPA's interpretation in an enforcement action. As noted, atleast

one defendant-Phillips Petroleumhas already argued against our 1980 interpretation. To our knowledge, the State has never provided an interpretation thatthe UBR was not intended to and does nothave a preclusive effect on EPA or citizen enforcement.

Atbest, the UBRlanguage is ambiguous, andin the face ofthis ambiguity, a court could defer to the State's interpretation, whose interpretation ofthe rule iscurrently unknown. Ambiguous language can undermine the purpose ofthe SIP and compliance with CAA requirements. 21

The commenters would have us remain silent in face ofthe uncertainty caused by the UBR language. The reasonable course is torequire the State through our SIP call authority to change the UBRto remove itspotential impediment to our and citizens' exercise ofour independent

20See, e.g., U.S. v.FordMotorCo., 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 notpursue enforcement ofSIP 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 ofthese cases, we think the reasonable course is to eliminate any uncertainty about reserved enforcement authority byrequiring the Stateto revise or remove the unavoidable breakdown rule from the SIP.

21In approving Colorado's affirmative defense
rule for startup and shutdown, we specifically disapproved one section ofthe rule that we felt could havebeen construed to cede authority to Colorado to determine whether a source had established the elements ofthe affirmative defense. 71 FR at 8959 (February 22, 2006). 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 ithas taken us so long torecognize and address the problem. Aswe noted above, issuance ofthe 1999 Policy spurred ourreexamination ofthe Utah SIP.In particular, the 1999 Policy clarified that SIPs should not include provisions whereby a State's enforcement decision would "barEPA's orcitizens' 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 thatthe potential preclusive effect ofthe executive secretary's violation/non-violation determinations under the UBRmay be "inkeeping with the role given to states in SIP matters."

Response:We disagree. Sections 113 and 304 ofthe 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, asthe
commenter suggests, to an action under section 113(a)(2) ofthe Act-to essentially waitfor "widespread" dereliction ofduty on Utah's part-to correct this problem in the UBR. Our

use ofSIP 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 ofauthority in Utah's SIP and the UBRis in keeping with the role given to states in SIP matters." Contrary
to the commenter's suggestion, we are not required to waitfor a courtto determine in the context of an enforcement action whether the potential preclusive effect ofthe UBR language is consistent with the CAA. Congress did not hamstring us in that

22The UBR could beeasilyrevised to address the problem. The sentence in question could be changed to read, "The submittal of such information shall beused by the executive secretary in determining whether to pursue enforcement action." way; instead itprovided us with authority toissue a SIP call to address substantial inadequacies in the SIP.

(1)Comment:Commenters argue that EPA's preferred approach would have

no impact on emissions because unavoidable breakdowns are by their
nature unavoidable regardless ofthe rule governing such events.

Response:First, as we explain above, the UBRprecludes injunctive relief when the excess emissions fallwithin 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 ofthe NAAQS.

Second, how "unavoidable" is defined makes a difference. Depending onthe definition, different incentives with respect to design, operation, and maintenance are created. We findthat 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 UBRindicates that breakdowns causedby "poor maintenance" or "careless operation" or "any otherpreventable upset condition

orpreventable 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 arecurring pattern indicative ofinadequate design, operation, or maintenance." The lackof 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 UBRdoes not indicate who has theburden ofproofregarding claims ofunavoidable breakdown. The 1999 Policy clearly provides that the

source has the burden to prove the elements ofthe 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 ofEPA 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

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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 inthe 1999 Policy are addressed "inall material respects" bythe 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 ofthe criteria for determining whether abreakdown is unavoidable.

We also disagree withthe 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, tothe extent practicable,
to make repairs and needed tomake repairs expeditiously when itknew or should have known that emissions limits were being exceeded. This specificity helps define the more general admonition in thepolicy 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 ofthe facility, and they do not require reporting ofall breakdowns. Also, the UBR does not require that the owner or operator document its actions in
response to thebreakdown with signed, contemporaneous operating logs.

Finally, we note that one significant difference between the affirmative defense described inthe 1999 Policy and the UBRis thatthe affirmative defense recognizes that aviolation of the emissions standard has occurred and provides reliefonly for actions for penalties. The UBR provides that the

excess emissions are excused andwould prohibit any action for penalties and
any action for injunctive relief. (n) Comment:The terms ofthe UBR

are analogous to the criteria thatEPA'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 isrelevant, we disagree with the commenter. The UBRis 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 aviolation, were due to an unavoidable malfunction. Any malfunction provision must provide for the commencement ofa proceeding to notify the source ofitsviolation andto determine whether enforcement action should be undertakenfor anyperiod of

excess emissions." (Emphasis added). The UBR does not require the State to initiate a proceeding to notify the source ofits violation. Moreover, contrary to the foregoing, the UBR specifically provides thatthe 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 ofthe term "automatic exemption." As we explain elsewhere, the UBRclearly 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 notbe 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 tomeet emission limits at all times"is without merit.

Response:We disagree. First, the quoted language is part ofthe criteria contained in the UBR. See our responses to comments comparing the criteria of the UBRto the criteria contained in our SSM policies. Second, considered as a whole, we conclude thatthe UBR reduces a source's incentive tomeet its emission limits at all times. We have explained the basis for our view in our responses to previous comments. In particular, therule 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 aviolation. (p) Comment:Commenters assert that EPA's SIP call is inconsistent with the Federal-State partnership as contemplated in the CAA. Commenters
state thatthe CAA does not contemplate mandates to require a State to modify its SIP, without regard to environmental or air quality benefits, simplybecause EPA has a particular policy itwants 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 itwill provide for attainment and maintenance ofthe Act. Section 110(a)(2) provides a specific listofobligations 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 ofattaining and maintaining the health-based air quality standards, protecting increments, and improving visibility in national parks and wilderness areas, canbe enforced at alltimes as contemplated by sections 110 and 302 ofthe Act. We are also acting to ensure that Utah's SIP does not undermine delegated national standards like NSPS andNESHAPS. (q)Comment:Itis left to the states, andnot EPA, to choose howthey will achieve assigned emission reduction levels. Section 110 allows for a SIP call onlyifthe state is not achieving NAAQS. As long as a state achieves the applicable air quality standards, Congress did not intend EPA to require

aplan revision merely because it disagrees with the measure that a state implements.

Response:We are not interfering with Utah's selection ofSIP emissions limits. We are acting to ensure that one element ofthe SIP-the UBR-is modified or removed so that itdoes not interfere with one ofthe minimum requirements ofthe CAA-that the SIP limits relied

onto attain and maintain the NAAQS, protect increments, and protect visibility apply andbe enforceable at all times. Furthermore, in the context of NSPS andNESHAPS, to which the UBR also applies, it isup to EPA to select emission limits (andany exemptions),
not the State.

We disagree that section 110 only allows a SIP call ifthe State is not achieving the NAAQS. One commenter cites Virginiav. 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 reachthe 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 ofareas in Utah are designated nonattainment and have violated, or are violating various NAAQS. (z') Comment:Some commenters assert that allowing EPA to proceed with a SIP call here in the absence ofdata showing the UBRhas caused specific NAAQS violations could set the stage for unfettered, arbitrary EPA SIP calls with respect to any number ofstate rules. A
commenter asserts that EPA's SIP call

runs counter to pastEPA SIP calls. Another asserts thatEPA erroneously finds thatthe 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 validbasis for the SIP call. We note thatwe haverarely 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 ofthose rules and facts relevant to them. The comment thatthis SIP call is inconsistent with pastEPA SIP calls is also inaccurate. While in some cases EPA has issued SIP calls to address specific violations ofthe 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) ofthe CAA because the SIPs could be interpreted to limit the types ofevidence or information that could be used for determining compliance with and establishing violations ofemissions limits. See 62 FR 8314, 8327 (February 24, 1997); October 20, 1999 letter from William Yellowtail
to Governor Marc Racicot. We standby

our conclusion thatthe SIP call does not have Federalism implications within the meaning ofExecutive 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 withthe Nevada SIP using the authority ofCAA 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 ofthe Act, and whether it couldhave 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 notfinalized its proposed 110(k)(6) action, we respectfully disagree. (s) Comment:Utah's UBRis "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 tomeet the requirements to impose mandatory sanctions under the CAA because sanctions can only be triggered by a "finding ofsubstantial inadequacy." The commenter also
asserts that sanctions are unwarranted because Utah has always acted ingood faith toinvolve 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 thatEPA" should be circumspect in brandishing its sanctions club."

Response:This rulemaking action finalizes our finding ofsubstantial inadequacy under CAA section 110(k)(5), and the State isrequired to submit a SIP revision in response to the finding ofsubstantial inadequacy. Ifthe State fails to submitthe 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 ingood faith to change the UBR is irrelevant; we lack authority to forestall the mandatory sanctions ifEPA 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 notedin

our proposal, other States in the Region have changed their SSM rules and gained EPA's approval. (b) Comment:IfEPA were to impose statewide sanctions, it wouldviolate 40 CFR 52.30(b) ifthe criteria of40 CFR 52.30(c) are metby one or more political subdivisions within the State.

Response:No commenter has suggested thata political subdivision within Utah meets the criteria of40 CFR 52.30(c). However, as described in the "Final Action" section ofthis action, we

are deferring a decision onwhether to impose sanctions under section 110(m) and will consider any comments on the issue ofimposing sanctions under section 110(m) ifand 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 tothe public ofwhether the exercise ofdiscretionary authority under CAA Section 110(m) is appropriate in this case."

Response:While we provided a

reason in ourproposal-namely, that the UBR applies statewide-we are deferring a decision on whether to impose discretionary sanctions. (d) Comment:Transportation and mobile sources should notbe punished for arule governing industry operations. The commenter therefore recommends that EPA "include a 'Protective finding' in the SIP call for mobile sources," which "wouldprevent the automatic 'freeze' ofconformity and allow for operations to continue for at least two years after an EPA disapproval takes effect." Another commenter expresses

concern that sanctions wouldnegatively impact transit services.

Response:EPA does not intend to "punish"anyone. The purpose of sanctions isto encourage corrective actionby the State. The applicable sanctions are specified by Congress, not EPA. As noted above, sanctions can be avoided altogether by Utah's timely submission ofan approvable revision to the SIP. Regarding the suggestion that

we provide a protective finding, our interpretation isthat disapproval ofany rule submitted in response to this SIP call would not result in a conformity freeze because the revision atissue 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,

evenifhighway sanctions are triggered by future disapproval ofa revised breakdown rule, a conformity lapse would not occur because we would not be disapproving a control strategy SIP revision. Ifhighway 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 canbe avoided through appropriate State action, and certain projects can proceed even ifhighway 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 ofthe 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 onlyin nonattainment areas rather than statewide would be inconsistent with the CAA, as the intent ofthe 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 ofthe sanctions; it does not require we do so.

(h)Comment:EPA should apply sanctions ifUtah fails to correct the UBR.

Response:As noted, mandatory sanctions will apply ifthe relevant triggering events occur. We are deferring

a decision regarding the application of discretionary sanctions. See the "Final Action" section ofthis action, above.

D. TimePeriod forResponse toSIP Call (a)Comment:Utahrequests thatEPA 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 UDAQfaces aside from this SIP Call. Utah states that

aresponse time oflessthan 18 months may cause a change in the prioritization andpossibly compromise other air quality efforts by the State including the development ofits Regional Haze Rule, the development of itsPM2. 5 SIP revision, and efforts to meetthe 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 wouldbe an appropriate length oftime for Utah to respond to this SIP call. We viewed this

as an acceptable timeframe given the history with the State ofUtah regarding the UBRand the timeit 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 timeframe would
pose for UDAQ inview ofthe State's
current workwith its Regional Haze SIP revision, the development ofitsPM 2.5 attainment SIP revision (forthree 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 notprovide 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 inview 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 forresponse

as allowedby 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 workwith us on appropriate rule language andto submit the SIP revision as soon as possible.

E.MiscellaneousComments
(a)Comment:The commenters support EPA's action, and believe the action benefits the health and wellbeing ofUtah 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 tomeet 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 ofthe need to change theirUBR on many occasions.

Response:We agree. (e) Comment:SSM plans should be part ofTitle 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 andMalfunction" in its analysis.

Response:Our review indicates that Utah rule R307-415-(7)(g) ispart of Utah's Title V operating permit regulations and istitled "Permit Revision: Reopening for Cause." Utah's Title V regulations are separate from and not approved as part ofthe SIP. Thus, our SIP call authority isnot applicable to those regulations. Wewere unable tofind any discussion ofstartup, shutdown, or malfunction in R307-415- (7)(g) and, thus, are unable torespond

more extensively to the comment.
V. Statutoryand 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 reviewby the Office ofManagement andBudget. For this reason, this action is alsonot 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 torevise Utah rule R307-107 to address requirements ofthe CAA. Accordingly, I certify thatthis action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5U.S.C. 601 etseq.)because this action does not impose any requirements on small entities.

Since the only costs ofthis action will be those associated with preparation and submission ofthe SIP revision, EPA has determined thatthis 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 ofsections 202 or 205 ofthe unfunded mandates reform act (UMRA).

In addition, since the only regulatory requirements ofthis action apply solely
to the State ofUtah, this actionis not subject to the requirements ofsection 

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203 ofUMRA because it contains no regulatory requirements thatmight significantly or uniquely affect small governments.

Since this action imposes requirements only on the State ofUtah, it also does not have Tribal implications. It will nothave a substantial direct effect on one or more Indian Tribes, on therelationship 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 therelationship between the national government and the States, or

onthe distribution ofpower and responsibilities among the various levels ofgovernment, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because itwill simply maintain the relationship and the distribution ofpower and responsibilities between EPA andthe States as established bythe CAA. This SIP call is required bythe 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 notbe substantial because the SIP call requires Utah to submitonly those revisions necessary to address the SIP deficiencies and applicable CAA requirements.

EPA interprets Executive Order 13045 "Protection ofChildren 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 thatthe analysis required under section 5-501 ofthe EO has the potential to influence theregulation. 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 ofthe CAA.

Section 12 ofthe 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 andAdvancement Act, EPA must consider anduse "voluntary consensus standards" (VCS) ifavailable and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical. In making a finding ofa SIP deficiency, EPA'srole is to review existing information against previously established standards. Inthis context, there is no opportunity to use VCS. Thus, the requirements ofsection 12(d) ofthe 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 ofthe Paperwork Reduction Act of1995 (44U.S.C. 3501 etseq.), since it only requires the State ofUtah
to revise Utah rule R307-107 to address requirements ofthe CAA.

The Congressional Review Act, 5 U.S.C. 801 etseq., as added bythe Small Business Regulatory Enforcement Fairness Act of 1996, generally provides thatbefore a rulemay take effect, the
agency promulgating the rule must submit a rule report, which includes a copy ofthe rule, to each House ofthe Congress and tothe Comptroller General ofthe United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General ofthe United States prior to publication ofthe rule in the FederalRegister. A major rule
cannot take effect until 60 days after it is published in the Federal Register. This action is not a "majorrule" as defined by 5U.S.C. 804(2).

Under section 307(b)(1) ofthe Clean Air Act, petitions forjudicialreview of this action must be filed in the United States Court ofAppeals for the appropriate circuit byJune 17, 2011. Filing a petition for reconsideration by the Administrator ofthis final rule does
not affect the finality ofthis actionfor the purposes ofjudicial review nor does it extend the time within which a petition forjudicial review maybe filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged laterin proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFRPart52

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, RegionalAdministrator, Region8.
[FRDoe. 2011-9215 Filed4-15-11; 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) RuleAmendments for Milkand 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 allmilk 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-HQOPA-2008-0821, contains the information related to this rulemaking, including theresponse 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 notbe 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.govorin hard copy at the EPA docket, EPA/DC, EPAWest, 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 ofthe Public Reading Room is 202-566-1744, and the telephone number tomake 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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