+(,121/,1(

Citation: 76 Fed. Reg. 21639 2011 

Content downloaded/printed from 

HeinOnline (http://heinonline.org)

Mon Jun 18 14:02:33 2012

-- Your use of this HeinOnline PDF indicates your acceptance

 of HeinOnline's Terms and Conditions of the license

 agreement available at http://heinonline.org/HOL/License

-- The search text of this PDF is generated from 

 uncorrected OCR text.
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.

List of Subjects in 33 CFR Part 165

Harbors, Marine Safety, Navigation

(water), Reporting and recordkeeping

requirements, Security measures,

Waterways.

For the reasons discussed in the

preamble, the Coast Guard amends 33

CFR Part 165 as follows:

PART 165-REGULATED NAVIGATION

AREAS AND LIMITED ACCESS AREAS

m 1. The authority citation for part 165

continues to read as follows:

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

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

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

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

of Homeland Security Delegation No. 0170.1.

* 2. Add section § 165.T09-0165 to read

as follows:

§ 165.T09-0165 Safety zone; Ford Estate

Wedding Fireworks, Lake St. Clair, Grosse

Pointe Shores, MI.

(a) Location. The safety zone will

encompass all U.S. navigable waters on

Lake St. Clair within a 420 foot radius

of the fireworks barge launch site

located off the shore of Grosse Pointe

Shores, MI at position 42°27'15.06" N.,

082o51'59.01" W. All geographic

coordinates are North American Datum

of 1983 (NAD 83).

(b) Effective and Enforcement Period.

This rule is effective and will be

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

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

(c) Regulations. (1) In accordance with

the general regulations in Section

165.23 of this part, entry into, transiting,

or anchoring within this safety zone is

prohibited unless authorized by the

Captain of the Port Detroit, or his

designated on-scene representative.

(2) This safety zone is closed to all

vessel traffic, except as may be

permitted by the Captain of the Port

Detroit or his designated on-scene

representative.

(3) The "on-scene representative" of

the Captain of the Port is any Coast

Guard commissioned, warrant, or petty

officer who has been designated by the

Captain of the Port to act on his behalf.

The on-scene representative of the

Captain of the Port will be aboard either

a Coast Guard or Coast Guard Auxiliary

vessel. The Captain of the Port or his

designated on scene representative may

be contacted via VHF Channel 16.

(4) Vessel operators desiring to enter

or operate within the safety zone shall

contact the Captain of the Port Detroit

or his on-scene representative to obtain

permission to do so.

(5) Vessel operators given permission

to enter or operate in the safety zone

must comply with all directions given to

them by the Captain of the Port or his

on-scene representative.

Dated: April 5, 2011.

J.E. Ogden,

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

Port Detroit.

[FR Doe. 2011-9256 Filed 4-15-11; 8:45 am]

BILLING CODE 9110-04-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[EPA-R08-OAR-2010-0909; FRL-9294-9]

Finding of Substantial Inadequacy of

Implementation Plan; Call for Utah

State Implementation Plan Revision

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: Pursuant to sections

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

Air Act (CAA), EPA is finding that the

Utah State Implementation Plan (SIP) is

substantially inadequate to attain or

maintain the national ambient air

quality standards (NAAQS) or to

otherwise comply with the requirements

of the CAA and issuing a call for the

State of Utah to revise its SIP.

Specifically, the SIP includes Utah's

unavoidable breakdown rule (rule

R307-107), which exempts emissions

during unavoidable breakdowns from

compliance with emission limitations.

This rule undermines EPA's, Utah's,

and citizens' ability to enforce emission

limitations that have been relied on to

ensure attainment or maintenance of the

NAAQS or meet other CAA

requirements. EPA is requiring that the

State revise the SIP to remove R307-107

or correct its deficiencies and submit

the revised SIP to EPA within 18

months of the effective date of this final

rule. If EPA finds that Utah has failed

to submit a complete SIP revision as

required by this final rule or if EPA

disapproves such a revision, such a

finding or disapproval will trigger

clocks for mandatory sanctions and an

obligation for EPA to impose a Federal

Implementation Plan (FIP). If EPA

makes such a finding or disapproval,

mandatory sanctions will apply such

that the offset sanction would apply 18

months after such finding or

disapproval and highway funding

restrictions would apply six months

later unless EPA takes action to stay the

imposition of the sanctions or to stop

the sanctions clock based on the State

curing the SIP deficiencies.

In its proposed rulemaking action,

EPA requested comment on whether it

should exercise its discretionary

authority under CAA section 110(m) to

impose the highway funding restrictions

sanctions in areas of the State that

would not be subject to mandatory

sanctions. EPA is deferring a decision

on whether to impose sanctions under

section 110(m) and will consider any

comments on the issue of imposing

sanctions under section 110(m) if and

when we take final action on this issue

in the future.

DATES: Effective Date: This final rule is

effective May 18, 2011.

ADDRESSES: EPA has established a

docket for this action under Docket ID

No. EPA-R08-OAR-2010-0909. All

documents in the docket are listed on

the http://www.regulations.gov Web

site. Although listed in the index, some

information is not publicly available,

e.g., Confidential Business Information

(CBI) or other information whose

disclosure is restricted by statute.

Certain other material, such as

copyrighted material, is not placed on

the Internet and will be publicly

available only in hard copy form.

Publicly available docket materials are

available either electronically through

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

copy at the Air Program, Environmental

Protection Agency (EPA), Region 8,

1595 Wynkoop Street, Denver, Colorado

80202-1129. EPA requests that if at all

possible, you contact the individual

listed in the FOR FURTHER INFORMATION

CONTACT section to view the hard copy

of the docket. You may view the hard

copy of the docket Monday through

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

Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Vanessa Hinkle, Air Program, Mailcode

8P-AR, Environmental Protection

Agency, Region 8, 1595 Wynkoop

Street, Denver, Colorado 80202-1129,

(303) 312-6561, or

hinkle.vanessa@epa.gov.

SUPPLEMENTARY INFORMATION:

Definitions

For the purpose of this document, the

following definitions apply:

(i) The words or initials Act or CAA

mean or refer to the Clean Air Act,

unless the context indicates otherwise.

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

mean or refer to the United States

Environmental Protection Agency.

21639

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

(iii) The initials NAAQS mean or refer

to National Ambient Air Quality

Standards.

(iv) The initials NOx mean or refer to

nitrogen oxides.

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

particulate matter with an aerodynamic

diameter less than or equal to a nominal

2.5 micrometers.

(vi) The initials PMo mean or refer to

particulate matter with an aerodynamic

diameter less than or equal to a nominal

10 micrometers.

(vii) The initials ppm mean or refer to

parts per million.

(viii) The initials SIP mean or refer to

State Implementation Plan.

(ix) The initials S0 2 mean or refer to

sulfur dioxide.

(x) The initials SSM mean or refer to

startup, shutdown, and malfunction.

(xi) The words State or Utah mean the

State of Utah, unless the context

indicates otherwise.

(xii) The initials UBR mean or refer to

the Utah unavoidable breakdown rule,

R307-107.

(xiii) The initials UDAQ mean or refer

to the Utah Division of Air Quality,

Utah Department of Environmental

Quality.

(xiv) The words 1982 Policy mean or

refer to the September 28, 1982 EPA

Memorandum signed by Kathleen M.

Bennett, Assistant Administrator for

Air, Noise and Radiation, titled "Policy

on Excess Emissions During Startup,

Shutdown, Maintenance, and

Malfunctions."

(xv) The words 1983 Policy mean or

refer to the February 15, 1983 EPA

Memorandum signed by Kathleen M.

Bennett, Assistant Administrator for

Air, Noise and Radiation, titled "Policy

on Excess Emissions During Startup,

Shutdown, Maintenance, and

Malfunctions."

(xvi) The words 1999 Policy mean or

refer to the September 20, 1999 EPA

Memorandum signed by Steven A.

Herman, Assistant Administrator for

Enforcement and Compliance

Assurance, and Robert Perciasepe,

Assistant Administrator for Air and

Radiation, titled "State Implementation

Plans: Policy Regarding Excess

Emissions During Malfunctions,

Startup, and Shutdown."

Table of Contents

I. Background

II. Final Action

III. Summary of Bases for Finding of

Substantial Inadequacy

IV. Issues Raised by Commenters and EPA's

Responses

A. Request for Comment Period Extension/

Procedural Issues

B. Authority and Basis for a SIP Call

C. Sanctions

D. Time Period for Response to SIP Call

E. Miscellaneous Comments

V. Statutory and Executive Order Reviews

I. Background

On November 19, 2010, we published

our proposed rulemaking action in the

Federal Register (75 FR 70888) in which

we proposed to find the Utah SIP

substantially inadequate to attain or

maintain the NAAQS or to otherwise

comply with the requirements of the

CAA.' We also proposed to issue a SIP

call to require the State of Utah to revise

the SIP to correct the inadequacies. In

our proposal, we stated that, "Utah rule

R307-107 contains various provisions

that are inconsistent with EPA's

interpretations regarding the

appropriate treatment of malfunction

events in SIPs and which render the

Utah SIP substantially inadequate." Id.

at 70891. We went on to identify

specific deficiencies in R307-107 (also

known as Utah's unavoidable

breakdown rule and sometimes referred

to herein as the UBR). Id. at 70891-

70893. In particular, we explained that

the UBR: (1) Does not treat all

exceedances of SIP and permit limits as

violations; (2) could be interpreted to

grant the Utah executive secretary

exclusive authority to decide whether

excess emissions constitute a violation;

and (3) improperly applies to Federal

technology-based standards such as

New Source Performance Standards

(NSPS) and National Emission

Standards for Hazardous Air Pollutants

(NESHAPS). We explained why we

were proposing to find that these

deficiencies in the UBR render the Utah

SIP substantially inadequate. Id. We

proposed a 12-month deadline for the

State to respond to a final SIP call.

We also proposed the order and

timing of mandatory sanctions under

CAA section 179(a) and requested

comment on whether we should

exercise our discretionary authority to

impose highway funding sanctions in

all areas of the State.

We requested comments on all

aspects of our proposed action by

December 20, 2010. We subsequently

extended the public comment period

through January 3, 2011. See 75 FR

79327 (December 20, 2010).

We received numerous comments. A

number of commenters, particularly

citizens and environmental groups,

supported our proposed action. We also

1 Our proposal provided detailed background

information regarding EPA's CAA interpretations

with respect to SIP malfunction provisions, the

history of Utah rule R307-107 and relevant SIP

actions, and our interactions with the State and

others regarding the rule over the years. See 75 FR

70889-891. We direct the reader there for such

background information.

received a number of comments,

primarily from State agencies and

industrial facilities and groups, that

were critical of our proposed action.

II. Final Action

We have considered all comments

submitted and prepared responses,

which are contained in Section IV of

this action, "Issues Raised by

Commenters and EPA's Responses."

None of the comments has caused us to

conclude that our proposal was

unreasonable, and we are finalizing our

action as proposed, with the exception

that we are requiring that the State

respond to the SIP call within 18

months rather than 12 months.

Specifically, for the reasons described in

our notice of proposed rulemaking (see

75 FR 70888) and in this action, EPA

finds that the Utah SIP is substantially

inadequate to attain or maintain the

NAAQS or to otherwise comply with

requirements of the CAA due to

significant deficiencies created by

Utah's unavoidable breakdown rule,

R307-107.2 Utah's rule R307-107

improperly undermines EPA's, Utah's,

and citizens' ability to enforce emission

limitations that have been relied on in

the SIP to ensure attainment and

maintenance of the NAAQS or meet

other CAA requirements. Pursuant to

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

the CAA, EPA is requiring that the State

revise the SIP to remove R307-107 or

revise it to make it consistent with CAA

requirements. Utah must submit a

revised SIP responding to this SIP call

within 18 months of the effective date

of this final rule.

If Utah fails to submit a complete SIP

revision that responds to this final SIP

call, section 179(a) of the CAA provides

for EPA to issue a finding of State

failure. Such a finding will start

mandatory 18-month and 24-month

sanctions clocks and a 24-month clock

for promulgation of a FIP by EPA. The

two sanctions that apply under CAA

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

offset requirement for all new and

modified major sources subject to the

nonattainment new source review (NSR)

program and restrictions on highway

funding.

EPA issued an order of sanctions rule

in 1994 (see 59 FR 39832 (August 4,

1994), codified at 40 CFR 52.31) but did

not specify the order of sanctions where

a State fails to submit or submits a

deficient SIP in response to a SIP call.

However, as we proposed (75 FR 70893-

2 We provide a summary of the bases for our

finding of substantial inadequacy in Section III of

this action, "Summary of Bases for Finding of

Substantial Inadequacy."

21640

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

70894), we have decided that the order

of sanctions specified in 40 CFR 52.31

will apply here for the same reasons

discussed in the preamble to that rule.

Thus, if Utah fails to submit the

required SIP revision, or submits a

revision that EPA determines is

incomplete or that EPA disapproves, the

2-to-1 emission offset requirement will

apply for all new sources subject to the

nonattainment NSR program 18 months

following such a finding or disapproval

unless the State corrects the deficiency

before that date. The highway funding

restrictions sanction will also apply six

months after the offset sanction applies

unless the State corrects the deficiency

before that date. The provisions in 40

CFR 52.31 regarding staying the

sanctions clock and deferring the

imposition of sanctions will also apply.

Mandatory sanctions under section

179 of the CAA generally apply only in

nonattainment areas. By its definition,

the emission offset sanction applies

only in areas required to have a part D

NSR program, typically areas designated

nonattainment.3 Section 179(b)(1)

expressly limits the highway funding

restriction to nonattainment areas.

Additionally, EPA interprets the section

179 sanctions to apply only in the area

or areas of the State that are subject to

or required to have in place the

deficient SIP and for the pollutant or

pollutants the specific SIP element

addresses. In this case, mandatory

sanctions would apply in all areas

designated nonattainment for a NAAQS

within the State because Utah rule

R307-107 applies statewide and applies

for all NAAQS pollutants.

In addition to sanctions, if EPA finds

that the State failed to submit a

complete SIP revision that responds to

this SIP call or disapproves such

revision, CAA section 110(c) would

require EPA to promulgate a FIP no later

than two years from the date of the

finding or the disapproval if the

deficiency has not been corrected.

In its proposed rulemaking action (75

FR 70893-70894), EPA also requested

comment on whether it should exercise

its discretionary authority under CAA

section 110(m) to impose the highway

funding restrictions sanction in areas of

the State that would not be subject to

mandatory sanctions-i.e., areas other

than nonattainment areas. EPA is not

finalizing action on the use of such

discretionary authority in this action. If

EPA acts on the use of discretionary

sanctions at a later date, it will fully

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

located in the Ozone Transport Region, which are

required to have a part D NSR program regardless

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

respond to relevant comments

submitted in response to the November

19, 2010 notice of proposed rulemaking.

III. Summary of Bases for Finding of

Substantial Inadequacy

This section provides a brief summary

of the bases for our finding of

substantial inadequacy. For further

detail, please refer to our notice of

proposed rulemaking (75 FR 70888) and

our response to comments.

1. R307-107-1 provides an exemption

from emission limits in the Utah SIP

and SIP-based permits for exceedances

of such limits caused by an unavoidable

breakdown-"emissions resulting from

unavoidable breakdown will not be

deemed a violation of these regulations."

This generic exemption, applicable to

all Utah SIP limits, precludes any

enforcement when there is an

unavoidable breakdown. Our

interpretation of the CAA is that an

exemption from injunctive relief is

never appropriate, and that an

exemption from penalties is only

appropriate in limited circumstances. 4

Contrary to CAA section 302(k)'s

definition of emission limitation, the

exemption in the UBR renders emission

limitations in the Utah SIP less than

continuous and, contrary to the

requirements of CAA sections

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

ability to ensure compliance with SIP

emissions limitations relied on to

achieve the NAAQS and other relevant

CAA requirements at all times.

Therefore, the UBR renders the Utah SIP

substantially inadequate to attain or

maintain the NAAQS or to comply with

other CAA requirements, such as CAA

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

CAA provisions related to prevention of

significant deterioration (PSD) and

nonattainment NSR permits (sections

165 and 173), and provisions related to

protection of visibility (section 169A).

2. R307-107-1 also applies to Federal

technology-based standards like the

NSPS and NESHAPS that Utah has

incorporated by reference to receive

delegation of Federal authority. To the

extent any exemptions from these

technology-based standards are

warranted for malfunctions, the Federal

standards contained in EPA's

regulations already specify the

appropriate exemptions. No additional

exemptions (or criteria for deciding

whether an applicable exemption

applies) are warranted or appropriate.

Thus, the Utah SIP is substantially

4 As we explain in our response to comments, the

UBR lacks criteria that are sufficiently detailed or

robust to ensure that penalties are available at all

appropriate times.

inadequate because R307-107-1

improperly provides an exemption and

criteria not contained in and not

sanctioned by the delegated Federal

standards.

3. R307-107-2 requires the source to

submit information regarding an

unavoidable breakdown to the executive

secretary of Utah's Air Quality Board

(UAQB) and indicates that the

information "shall be used by the

executive secretary of the UAQB in

determining whether a violation has

occurred and/or the need of further

enforcement action." This provision

appears to give the executive secretary

exclusive authority to determine

whether excess emissions constitute a

violation and thus to preclude

independent enforcement action by EPA

and citizens when the executive

secretary makes a non-violation

determination. This is inconsistent with

the enforcement structure under the

CAA, which provides enforcement

authority not only to the States, but also

to EPA and citizens. Because a court

could interpret section R307-107-2 as

undermining the ability of EPA and

citizens to independently exercise

enforcement discretion granted by the

CAA, it is substantially inadequate to

comply with CAA requirements related

to enforcement. Because it undermines

the envisioned enforcement structure, it

also undermines the ability of the State

to attain and maintain the NAAQS and

to comply with other CAA requirements

related to PSD, visibility, NSPS, and

NESHAPS. Potential EPA and citizen

enforcement provides an important

safeguard in the event a State cannot or

does not enforce CAA violations and

also provides additional incentives for

sources to design, operate, and maintain

their facilities so as to meet their

emission limits. Thus, R307-107-2

renders the SIP substantially inadequate

to attain or maintain the NAAQS or

otherwise comply with the CAA.

IV. Issues Raised by Commenters and

EPA's Response

A. Request for Comment Period

Extension/Procedural Issues

(a) Comment: Two comment letters

requested an extension of the comment

period of up to 60 days. Other

commenters did not specifically request

an extension, but stated that they

believed the comment period was too

short. Some commenters complained

that the proposal was issued without

stakeholder input.

Response: We considered the requests

for an extension of the comment period

and extended the original 30-day public

comment period from December 20,

21641

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

2010 to January 3, 2011 (see 75 FR

79327 (December 20, 2010)), providing

a total of 45 days to submit comments.

The comment period was sufficient to

provide a reasonable opportunity to

comment on our proposed action given

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

the CAA specifies a 30-day period as a

minimum comment period for

rulemaking actions under the CAA,

except for certain specified provisions

(all of which waive notice-and-comment

rulemaking requirements). We typically

provide a 30-day comment period for

SIP-related actions. Neither the CAA nor

the Administrative Procedure Act

requires a stakeholder process before or

during rulemaking to issue a SIP call.

(b) Comment: A commenter asserts

that EPA's notice is defective because it

fails to provide interested parties with

sufficient notice of facts, policies and

case law relevant to the proposed

finding. Interested parties cannot

understand the bases for EPA's

proposed rule and thus cannot

participate and comment in a

meaningful way. EPA needs to correct

the deficiencies in the notice and repropose.

Response: As described more fully

elsewhere in our response to comments,

we explained the bases for our finding

of substantial inadequacy and SIP call

in our proposed rulemaking action. See

75 FR 70891-70893.

(c) Comment: A commenter asserts

that it cannot provide meaningful

comments and analysis of the proposed

rule because EPA has not responded to

the commenter's appeal seeking

documents under the Freedom of

Information Act (FOIA).

Response: We disagree that our

actions under the FOIA are relevant to

the validity of our rulemaking action. In

this case, we clearly explained the bases

for our proposed action, and made

available in our rulemaking docket all

documents we considered in issuing the

proposal. The commenter had the same

reasonable opportunity to comment on

our proposal as any other commenter

and provided substantive comments.

We note that we responded to the

commenter's FOIA request on June 7,

2010, providing three compact discs

containing over 1,000 pages of

documents. We only withheld

documents we determined were

privileged (and thus exempt from

disclosure).

B. Authority and Basis for a SIP Call

(a) Comment: The proposal is

inconsistent with section 110 of the

CAA. Commenters assert that EPA's

authority to issue a SIP call under CAA

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

Administrator finds the applicable

implementation plan for an area is

substantially inadequate to attain or

maintain the relevant NAAQS or to

otherwise comply with any requirement

of that chapter. Commenters assert that

EPA has made no showing or disclosure

of relevant facts that the UBR is

substantially inadequate to protect the

NAAQS with respect to CAA sections

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

state that the finding of substantial

inadequacy must be clearly stated and

that the Administrative Record must

present facts which support the SIP call.

Commenters state that EPA's docket did

not identify any measured or modeled

impact on attainment or maintenance of

a NAAQS due to excess emissions

resulting from an unavoidable

breakdown. Further, EPA did not

provide any empirical information to

support its reasoning as to why the rule

is not working.

Response: The SIP call is consistent

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

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

substantially inadequate in our NPR and

are finalizing that determination here.

We explained the bases for our

proposed finding. See 75 FR 70891-

70893. As we indicated in our proposal,

SIPs, including the Utah SIP, rely on

adoption and enforcement of emission

limits to attain and maintain the

NAAQS, protect PSD increments,

protect visibility in national parks and

wilderness areas, and meet other CAA

requirements. See 75 FR 70891. The

integrity of the SIP is maintained and

protection is ensured as long as the

limits are met. Consistent with this

premise, the CAA and our regulations

require that SIP limits be enforceable.

For example, as noted in our proposal

(see 75 FR 70892), CAA section

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

enforceable emission limitations

necessary or appropriate to meet the

CAA's applicable requirements. CAA

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

SIP include a program to "provide for

the enforcement of the measures"

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

Section 302(k) defines emission

limitation as a requirement established

by a State or EPA that "limits the

quantity, rate, or concentration of

emissions of air pollutants on a

continuous basis." These requirements

are intended to ensure attainment and

maintenance of the NAAQS, protection

of increments, and protection of

visibility at all times, not just

occasionally or intermittently. The

enforceability of the SIP is fundamental

to the SIP's adequacy under the CAA.

The UBR provides an exemption from

emission limits in the Utah SIP (and

permits) for excess emissions caused by

an unavoidable breakdown-"emissions

resulting from unavoidable breakdown

will not be deemed a violation of these

regulations." See R307-107-1. Our

longstanding view is that all

exceedances are violations and must be

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

1982, 1983, and 1999 Policies; 42 FR

58171 (November 8, 1977). This

treatment is necessary because it

encourages sources to act responsibly in

taking necessary measures to ensure

compliance with emissions limits,

preserves the potential for injunctive

relief, preserves the potential for

penalties, except in limited

circumstances, and is consistent with

the notion that protection of health

under the CAA is not a sometime

requirement. It is also consistent with

CAA 302(k)'s definition of emission

limitation as a requirement limiting

emissions on a continuous basis. The

UBR precludes any enforcement when

there is an unavoidable breakdown. It

thus renders emission limitations in the

Utah SIP less than continuous and,

contrary to the requirements of sections

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

ability to ensure compliance with

emissions limitations and the NAAQS

and other relevant CAA requirements at

all times. Therefore, the UBR renders

the Utah SIP substantially inadequate to

attain or maintain the NAAQS or to

comply with other CAA requirements.

We also explained in our proposal

that R307-107-2 appears to give the

executive secretary of the UAQB

exclusive authority to determine

whether excess emissions have been

caused by an unavoidable breakdown

and, thus, whether they constitute a

violation. R307-107-2 provides that

information submitted by a source "shall

be used by the executive secretary in

determining whether a violation has

occurred and/or the need of further

enforcement action." We explained that

this provision is inconsistent with the

enforcement structure of the CAA,

which provides independent authority

to EPA and citizens to enforce SIP and

other CAA emission limits. See 75 FR

70892. We concluded that, because a

court could interpret R307-107-2 as

undermining the ability of EPA and

citizens to independently exercise

enforcement discretion granted by the

CAA, it is inconsistent with CAA

requirements related to enforcement

and, thus, renders the SIP substantially

inadequate. Preclusion of EPA and

citizen enforcement could make it

impossible to penalize source

noncompliance (where the State may

have erroneously concluded that

21642

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

exceedances were caused by an

unavoidable breakdown) or gain source

compliance through injunctive relief.

Also, potential preclusion of EPA and

citizen enforcement reduces the

incentive for sources to comply because

it reduces the likelihood of independent

evaluation of unavoidable breakdown

claims by a court in an enforcement

action brought by EPA or citizens.

The thrust of several comments is that

we have not presented facts or empirical

evidence that the UBR is not working or

that shows any measured or modeled

impact on attainment or maintenance of

a NAAQS due to excess emissions

resulting from an unavoidable

breakdown. As we indicated in our

proposal (see 75 FR 70892), we need not

show a direct causal link between any

specific unavoidable breakdown excess

emissions and violations of the NAAQS

to conclude that the SIP is substantially

inadequate. It is our interpretation that

the fundamental integrity of the CAA's

SIP process and structure is undermined

if emission limits relied on to meet CAA

requirements can be exceeded without

potential recourse by any entity granted

enforcement authority by the CAA. We

are not restricted to issuing SIP calls

only after a violation of the NAAQS has

occurred or only where a specific

violation can be linked to a specific

excess emissions event. It is sufficient

that emissions limits to which the

unavoidable breakdown exemption

applies have been, are being, and will be

relied on to attain and maintain the

NAAQS and meet other CAA

requirements. Nor are we required to

wait for a judge to rule in a specific

enforcement action that R307-107-2 has

a preclusive effect on EPA or citizen

enforcement to determine that the

provision is inconsistent with the CAA

and renders the SIP substantially

inadequate. 5

Nonetheless, we note the following:

1. Several counties along the Wasatch

Front in Utah (which includes the

largest population centers in the State)

are designated nonattainment for PMo,

PM 2.5, and SO 2, and some have recorded

violations of the 2008 0.075 ppm ozone

NAAQS as well. The Wasatch Front is

subject to severe wintertime inversions,

and several commenters noted that Salt

Lake County has at times experienced

some of the worst air quality in the

country. Exceedances of emission

limitations due to unavoidable

5 EPA has previously issued SIP calls to correct

deficiencies related to SIP enforceability. For

example, EPA issued SIP calls in the 1990s to

require States to revise their SIPs to allow for use

of any credible evidence in enforcement actions

with respect to SIP emissions limits. See 62 FR

8314, 8327 (February 24, 1997).

breakdowns increase pollutant levels in

the air in these nonattainment areas,

exacerbating pollution there.6

2. Our experience related to refineries,

power plants, and other sources

indicates that potential emissions

during malfunctions when normal

processes or pollution controls are

bypassed can be very high, far

exceeding SIP limits. For example, data

submitted by Holly Refining (Holly) in

Woods Cross, Utah, to the State of Utah

indicate that Holly flared nearly 11,000

pounds of SO 2 in a 9-hour period during

a claimed breakdown event in June 2006

and thousands of pounds during other

claimed breakdown events of varying

duration (some on the order of one

hour) between 2006 and 2010. By way

of comparison, the January 12, 2010

permit limit for Holly's SRU tail gas

incinerator is 1.6 tons (3,200 pounds) of

SO 2 per day. 7 During malfunctions,

refineries in the Billings, Montana, area

sometimes flared thousands of pounds

of SO 2 over a two- or three-hour period,

whereas the State had modeled

attainment of the 3-hour SO 2 NAAQS

based on a routine flare emissions limit

of 150 pounds per three hours. If

Montana had modeled the higher

emissions, other emission limits would

have had to have been greatly curtailed

for the area to demonstrate attainment of

the NAAQS. Our experience indicates

that the flare emissions at Holly and in

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

Enforcement Alert, Volume 3, Number

9, October 2000, "Frequent, Routine

Flaring May Cause Excessive,

Uncontrolled Sulfur Dioxide Releases,"

which we have included in the docket

for this action. Similarly, our experience

indicates that power plant emissions

during malfunctions can greatly exceed

emissions during routine operations.

3. A report by the Environmental

Integrity Project, which we included in

the record for our notice of proposed

rulemaking, also indicates that

malfunction emissions can dwarf SIP

and permit emissions limits. See

"Gaming the System," August 2004,

docket no. EPA-R08-OAR-2010-0909-

0042, pages 2, 5-9. See also, EPA

Enforcement Alert cited above, p. 2.

6 In 2005, the State submitted a maintenance plan

for PM10 for Salt Lake County. The State's

dispersion modeling, which we proposed to

disapprove because of flaws, projected values very

close to the 150 pg/m 3 24-hour NAAQS at the North

Salt Lake monitor. If the State had used

assumptions we had proposed, the projected values

would have been higher. Malfunction emissions are

of particular concern where modeling predicts

values just under the NAAQS.

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 of substantial inadequacy. As

we indicated in our notice of proposed

rulemaking, the UBR not only applies to

SIP limits, but also to permit limits and

national technology-based standards

like the NSPS and NESHAPS. See 75 FR

70892.

This means a source could use the

provisions of R307-107 to claim an

exemption from best available control

technology (BACT) or lowest achievable

emission rate (LAER) limits in a major

source permit. We have consistently

interpreted the Act to not allow for

outright exemptions from BACT limits,

and the same logic applies to LAER

limits. See, e.g., 1977 memorandum

entitled "Contingency Plan for FGD

Systems During Downtime as a

Function of PSD," from Edward E. Reich

to G.T. Helms and January 28, 1993

memorandum entitled "Automatic or

Blanket Exemptions for Excess

Emissions During Startup and

Shutdowns under PSD," from John B.

Rasnic to Linda M. Murphy. As noted,

in order to ensure non-degradation of air

quality at all times under the PSD

program and protection of the NAAQS

at all times, it is necessary for a source

to comply with its permit limits at all

times.

To the extent any exemptions from

the NSPS or NESHAPS are warranted,

the Federal standards contained in

EPA's regulations already specify the

appropriate exemptions. See, e.g., 40

CFR 60.48Da(c).8 No additional

exemptions or criteria are warranted or

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

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

Attachment, at 3.9 Furthermore, in

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

Cir. 2008), the DC Circuit determined

that exemptions from compliance with

CAA section 112 Maximum Achievable

Control Technology (MACT) standards

during periods of SSM were

inconsistent with CAA section 302(k),

which requires continuous compliance

with emission limits. Thus, R307-107-

1 is substantially inadequate because it

improperly provides an exemption and

grants discretion to the Utah executive

secretary not contained in and not

sanctioned by the delegated Federal

standards.

8 Some NSPS do not provide any relief during

SSM. For example, the SO 2 and NOx limits under

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

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

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

a state includes NSPS or NESHAPS in its SIP, the

standards should not deviate from those that were

federally promulgated. Because EPA set these

standards taking into account technological

limitations, additional exemptions would be

inappropriate."

21643

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

(b) Comment: Commenters state that

EPA is incorrect in its interpretation and

reliance on a number of court decisions

used in part to justify the SIP Call.

Commenters indicate that Michigan

DEQ v. Browner and Arizona Public

Service Co. v. EPA are not relevant.

Commenters state that EPA fails to

mention other cases, such as Sierra Club

v. Georgia Power, which commenters

allege are more on point and do not

support EPA's proposed SIP call.

Commenters also criticize EPA's citation

of Sierra Club v. EPA, and claim that

EPA's "broad interpretation" is at odds

with a July 2009 letter from Adam

Kushner to industry.

Response: Our action is based on our

longstanding interpretation of the CAA,

which is reflected in our 1999 and

earlier policy statements, among other

locations. As we noted in our proposal

(see 75 FR 70890), Arizona Public

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

(10th Cir. 2009) held that our 1999

Policy was a "reasonable interpretation

of the Clean Air Act." The court in

Michigan DEQv. Browner, 230 F.3d

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

that EPA's interpretation of section 110,

as explained in the 1982 and 1983

Policies, was reasonable and held that

"EPA reasonably concluded that

Michigan's proposed SIP revision did

not meet the requirements of the CAA."

Contrary to commenters' arguments,

these cases are relevant to our action.

The courts agreed with EPA that it is not

appropriate under CAA section 110 to

provide or approve an outright

exemption from SIP emission

limitations, and the Michigan DEQ court

upheld EPA's determination that

Michigan's defective SSM revisions did

not meet the requirements of the CAA.

Commenters suggest that these cases

are irrelevant because they didn't

involve a SIP call. However, if, as these

courts held, EPA's interpretation is

reasonable-that a malfunction

provision that provides an exemption

from an emission limit does not meet

the minimum requirements of CAA

section 110-then logic leads to the

conclusion that the provision is

substantially inadequate to meet section

110's requirements with respect to SIP

compliance and enforceability.

EPA's past approval of a provision

that fails to meet the minimum

requirements of the Act does not render

the provision compliant, something EPA

plainly acknowledged in its various

policy statements over the years. The

SIP call provisions of the Act provide

EPA with one of the only means to

revisit SIP decisions that may have been

wrong or ill-considered, or that have

been brought into greater focus with the

passage of time and development of

relevant knowledge and case law.

Contrary to commenters' assertion, we

did refer to Sierra Club v. Georgia Power

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

7, but inadvertently omitted the case

name. We disagree that the case "is more

analogous" or "contradicts EPA's current

interpretation." The case merely held

that EPA's 1999 policy did not change

the existing Georgia SIP, a proposition

we agree with and have acted in

accordance with here. See EPA's

December 5, 2001 clarification of the

1999 Policy, which is in the docket. If

we thought the policy trumped the

approved SIP, there would be no need

to issue a SIP call now. As Sierra Club

v. Georgia Power Co. suggested, we are

issuing a SIP call to ensure that the Utah

SIP meets the minimum requirements of

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

Cir. 2006).

Regarding Sierra Club v. EPA, 551

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

not cite the case as the main basis for

our SIP call, we remain convinced it is

relevant even though it addressed the

hazardous air pollutant (HAP)

regulations. In particular, the court

significantly relied on section 302(k)'s

definition of emission standard (as a

requirement that limits the quantity,

rate, or concentration of emissions of air

pollutants on a continuous basis) to

reach its ultimate holding disallowing

EPA's exceptions from the MACT

standards and attempted reliance on the

general duty to minimize emissions. As

with MACT standards, there is no

indication that Congress intended

compliance with NAAQS, or

compliance with emission limits relied

on to attain and maintain the NAAQS,

be anything less than continuous. Also,

we disagree with the comment that the

UBR does not provide an express

exemption from SIP and other emission

limits. The UBR states that "emissions

resulting from an unavoidable

breakdown will not be deemed a

violation of these regulations." This is

an exemption. The provisions in the

UBR requiring that an owner/operator

take "reasonable" measures to reduce

emissions resulting from an unavoidable

breakdown are analogous to the general

duty provisions in EPA's MACT

provisions. The Sierra Club court found

these general duty requirements were

not a substitute for a 112 emission

standard. Here, we find the emissions

minimization requirements in the UBR

are not a substitute for continuously

applicable emission limitations that

support attainment and maintenance of

the NAAQS, and protection of PSD

increments and visibility.

We also disagree that our views

contradict the views Adam Kushner

(EPA's Director of the Office of Civil

Enforcement) expressed in his July 2009

letter to industry representatives. Mr.

Kushner was delineating which MACT

standards were directly affected by the

court's ruling and how they would be

affected. Mr. Kushner was not

expressing an opinion about the import

of the Court's decision for other types of

emission standards and limitations. We

also find noteworthy the following

language from Mr. Kushner's letter:

"Although these provisions [sourcecategory specific SSM provisions] will

remain in effect following the issuance

of the mandate in Sierra Club, EPA

recognizes that the legality of such

source category-specific SSM provisions

may now be called into question, and

EPA intends to evaluate them in light of

the court's decision." EPA has since

revised or proposed to revise several

MACT standards with source-specific

malfunction provisions to eliminate the

exemptions from compliance during

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

15608 (March 21, 2011); 75 FR 54970

(September 9, 2010); 75 FR 65068

(October 21, 2010).

(c) Comment: EPA lacks the

regulatory authority to make a SIP call

based on policy or guidance that has not

become applicable law. The 1999 Policy

EPA cites as justification for the SIP Call

has never been subjected to the legal

requirements of notice and public

rulemaking under the Administrative

Procedures Act. In addition,

commenters assert that if EPA were

authorized to regulate through policy, it

would be inappropriate in this case

because the 2001 Policy 10 clarifies that

the 1999 Policy was not intended to

alter the status of any existing

malfunction, startup, or shutdown

provisions in a SIP that had been

approved by EPA.

Response: The 1999 Policy reflects

our interpretation of the CAA. We have

not treated it as binding on the States or

asserted that it changed existing SIP

provisions. Instead, we have done what

commenters argue is necessary-we

have engaged in notice and comment

rulemaking to determine whether a SIP

call is appropriate in this case. Through

this rulemaking action, we have

evaluated provisions of the Utah SIP to

determine whether they are consistent

with our interpretation of the CAA as

reflected in our policies. We provided

commenters with the opportunity to

10 "Re-Issuance of Clarification-State

Implementation Plans (SIPs): Policy Regarding

Excess Emissions During Malfunction, Startup, and

Shutdown," Eric Schaefer and John Seitz, December

5, 2001.

21644

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

comment on the proposed SIP call and

our basis for it, and are only finalizing

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 policy before we can conduct SIP

call rulemaking with respect to a

specific State malfunction provision, we

find no basis for this assertion in the

CAA. We have evaluated the UBR,

found it substantially inadequate as

specified in the CAA, and issued a SIP

call as required. The process we have

followed and the substance of our action

are reasonable.

Commenters emphasize our failure to

specifically cite our December 5, 2001

clarification to the 1999 Policy, in

which we indicated that the 1999 Policy

was not intended to "alter the status of

any existing malfunction, startup or

shutdown provision in a SIP that has

been approved by EPA." 12 The 2001

clarification merely states the obvious

well-understood principle-that an

approved SIP remains the approved SIP

unless or until EPA undertakes

rulemaking action to revise the SIP. See

General Motors v. United States, 496

U.S. 530, 540-541 (1990). In other

words, the 1999 Policy did not modify

existing SIP provisions. Here, "in the

context of future rulemaking" as

contemplated by the 2001 clarification,

we have considered "the Guidance and

the statutory principles on which the

Guidance is based." See December 5,

2001 clarification.

One commenter argues that the 2001

clarification "clarifies the 1999 Policy

does not apply to" the UBR. On the

contrary, because the UBR addresses the

treatment of excess emissions resulting

from an unavoidable breakdown, EPA's

interpretations reflected in the 1999

Policy are clearly relevant. Also,

nothing in the 2001 clarification

rejected EPA's statement in the 1999

Policy that all EPA Regions "should

review the SIPs for their states in light

of this clarification and take steps to

insure that excess emissions provisions

in these SIPs are consistent with the

attached guidance." As provided above,

11 We have applied the interpretation reflected in

our policies in a number of other rulemaking

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

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

approvals of Colorado SSM rules, 71 FR 8958

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

2008); partial approval and partial disapproval of

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

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

Michigan SSM rules, 63 FR 8573 (February 20,

1998); approval of Maricopa County, Arizona SSM

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

12 We included the 2001 clarification in the

docket for our proposal but did not cite it

specifically.

the sole purpose of the 2001

clarification was to expressly state that

the policy-standing alone-did not

serve to change the terms of an

approved SIP.

(d) Comment: EPA's proposed SIP call

is justified regardless of its reliance on

guidance. Commenter explains that

Utah's SIP cannot possibly assure the

NAAQS and other CAA requirements

will be met if the SIP allows a blanket

exemption from emission limits,

particularly because the effectiveness of

Utah's SIP is premised upon compliance

with emission limits.

Response: Our SIP call relies on our

interpretations of the CAA as reflected

in numerous policy statements and

actions over the years. Otherwise, we

agree with the commenter.

(e) Comment: Commenters assert that

EPA's SIP call is inconsistent when

compared with other EPA SSM polices

such as those for NSPS in 40 CFR

60.8(c).

Response: Emission limitations in

SIPs must ensure ambient levels of

criteria pollutants that attain and

maintain the NAAQS. For purposes of

demonstrating attainment and

maintenance, States assume source

compliance with emission limitations at

all times. Thus, provisions that exempt

compliance during SSM undermine the

integrity of the SIP. This principle

underlies EPA's interpretations

regarding SIP SSM provisions as

reflected in our various policy

statements over the years. For example,

in our 1999 Policy we stated the

following:

"EPA has a fundamental responsibility

under the Clean Air Act to ensure that SIPs

provide for attainment and maintenance of

the national ambient air quality standards

("NAAQS") and protection of PSD

increments. Thus, EPA cannot approve an

affirmative defense provision that would

undermine the fundamental requirement of

attainment and maintenance of the NAAQS,

or any other requirement of the Clean Air

Act. See sections 110(a) and (1) of the Clean

Air Act * * * Accordingly, an acceptable

affirmative defense provision may only apply

to actions for penalties, but not to actions for

injunctive relief.

Generally, since SIPs must provide for

attainment and maintenance of the national

ambient air quality standards and the

achievement of PSD increments, all periods

of excess emissions must be considered

violations. Accordingly, any provision that

allows for an automatic exemption for excess

emissions is prohibited.

Automatic exemptions might aggravate

ambient air quality by excusing excess

emissions that cause or contribute to a

violation of an ambient air quality standard."

Similarly, in our 1982 Policy, we stated

the following:

"The rationale for establishing these

emissions as violations, as opposed to

granting automatic exemptions, is that SIPs

are ambient-based standards and any

emissions above the allowable may cause or

contribute to violations of the national

ambient air quality standards."

Thus, EPA has long said that automatic

exemptions from SIP emission limits are

not appropriate because the SIPs are for

the purpose of ensuring health-based

standards are met and maintained. 13

NSPS and other technology-based

standards, on the other hand, do not

have to ensure attainment of the

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

provides that a new source "standard of

performance" must reflect "the degree of

emission limitation achievable through

the application of the best system of

emission reduction which (taking into

account the cost of achieving such

reduction and any nonair quality health

and environmental impact and energy

requirements)" EPA determines has

been "adequately demonstrated." Thus,

historically, EPA has held different

interpretations regarding the proper

treatment of excess emissions during

SSM under health-based standards

addressed in SIPs and the NSPS

technology-based standards. 14 In the SIP

context, and in the context of SIP-based

permits, EPA's interpretation of the

CAA is reasonable, and it is reasonable

for EPA to require that Utah revise the

UBR or remove it from the SIP.

(f) Comment: The Utah UBR has been

federally-approved in the SIP for over

30 years. Based on empirical UDAQ

monitoring since that approval, the Utah

UBR has not contributed to a NAAQS

exceedance.

Response: As indicated above, we

disagree that the commenters' suggested

test-whether there is demonstrated

proof that a specific excess emission

event allowed under the UBR has

contributed to a specific monitored

13 The 1999 Policy defines "automatic exemption"

as "a generally applicable provision in a SIP that

would provide that if certain conditions existed

during a period of excess emissions, then those

exceedances would not be considered violations."

The UBR provides such an automatic exemption:

"Except as otherwise provided in R307-107,

emissions resulting from an unavoidable

breakdown will not be deemed a violation of these

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

an outright exemption or an exemption.

14 As we noted in our proposal and elsewhere in

this action, however, the 2008 Sierra Club case held

that EPA rules exempting major sources from

technology-based NESHAP standards during SSM

periods violated the CAA's requirement in section

112 that some standard meeting that provision's

substantive requirements apply continuously.

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

2008).

21645

HeinOnline -- 76 Fed. Reg. 21645 2011
Federal Register/Vol. 76, No. 74/Monday, April 18, 2011/Rules and Regulations

NAAQS exceedance-is the test we

must use. As stated above, for purposes

of demonstrating attainment and

maintenance of the NAAQS (and for

protecting PSD increments and

visibility), States assume source

compliance with SIP emission

limitations at all times. 15 Thus, it is

reasonable to insist that the SIP not

interfere with or undermine the ability

to enforce compliance with SIP

limitations at all times. The UBR fails

this test for the reasons already stated.

In addition, even if the commenters

were correct that the sole reasonable test

is whether the UBR has contributed to

a monitored exceedance of the NAAQS,

we cannot discern whether commenters

are saying there has never been a

breakdown event on a day when a

monitor has exceeded a NAAQS. (The

commenters submitted no data

regarding claims under the UBR.)

However, based on monitored violations

of the NAAQS, Utah has had areas

designated nonattainment for various

pollutants over the course of many years

and continues to have nonattainment

areas for PM 2.5, PM 10 , and S0 2. Areas in

Utah will likely be designated

nonattainment for ozone again in the

future. As noted in a prior response,

malfunction-based emissions at

stationary sources can lead to large

emissions in a short period of time, and

it is reasonable to conclude that excess

emissions during malfunctions have

contributed and/or have the potential to

contribute to NAAQS exceedances and

violations in the urbanized areas of

Utah.' 6 If EPA promulgates new, more

stringent NAAQS, the potential for

NAAQS exceedances and violations

only increases.

Several commenters emphasize that

the UBR has been in the SIP for more

than 30 years and that EPA has

approved it more than once. We first

approved the UBR in 1980 only after

stating in our 1979 proposed rulemaking

action that we could not fully approve

the UBR "because it exempts certain

excess emissions from being violations

of the Air Conservation Regulations"

and only after opining that exemptions

granted under the UBR would not apply

15 We note that dispersion modeling, based on SIP

emission limitations, is often required to

demonstrate attainment and maintenance of the

NAAQS because modeling can predict pollutant

levels at receptor locations throughout an area,

whereas monitors are limited in number and

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

appendix W.

16 Based on data in EPA's Air Quality System

database for the years 2005 through 2010, there

were 171 days during which the PM 2.5 NAAQS was

exceeded at a monitor in Utah and 154 days during

which the 2006 ozone NAAQS was exceeded at a

monitor in Utah.

as a matter of Federal law. See 44 FR

28688, 28691 (May 16, 1979).

Second, our approval of the UBR

preceded the 1982 and 1983 Policies.

These memoranda to EPA's Regional

Administrators were issued in response

to requests for clarification of EPA's

policy regarding excess emissions

during SSM. Presumably, these

memoranda were issued because

previously there had been some

confusion about EPA's interpretation of

the CAA on this issue. A comparison of

the UBR to these policies reveals that

the UBR did not and does not comport

with the interpretation reflected in the

policies. For example, the 1982 Policy

states that EPA can approve SIP

revisions that incorporate an "enforcement discretion approach" that

requires the State agency to treat all

excess emissions due to malfunctions as

violations and commence a proceeding

to notify the source of its violation.

Then the State agency would determine

whether to initiate an enforcement

action based on specific, detailed

criteria contained in the 1982 Policy.

The UBR does not treat all excess

emissions as violations, does not require

the State to initiate a proceeding to

notify the source of its violation, and

does not contain the criteria consistent

with those contained in the 1982 Policy.

The 1982 Policy stated, "Where the SIP

is deficient, the SIP should be made to

conform to the present policy." Contrary

to the 1982 Policy's directive, the SIP

was not made to conform to the 1982

Policy.

We approved a revised version of the

UBR in 1994 with no preamble

discussion except to note that the Utah

air rules had been renumbered and new

requirements had been added to the SIP.

See 57 FR 60149 (December 18, 1992)

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

is no indication that EPA evaluated the

substance of the UBR or any of the other

re-numbered provisions that were

already included as part of the approved

SIP. Id. We also note that the 1994

approval preceded our 1999 Policy,

which re-alerted EPA regional offices to

the issues regarding SIP SSM rules,

acknowledged that some existing SIPs

included deficient SSM provisions, and

directed the Regions to review the SIPs

and seek to correct such provisions.

Subsequent to EPA's issuance of the

1999 Policy, we approved another

renumbering of the Utah SIP, including

a renumbering of the UBR. Again, EPA

did not consider the substance of the

UBR, but did expressly reference EPA's

ongoing concerns with SIP rules and

specifically noted that Utah had

committed to address those concerns,

which included concerns with the UBR.

We indicated that we would "continue

to require the State to correct any rule

deficiencies despite EPA's approval" of

the recodification. See 70 FR 59681,

59683 (October 13, 2005).

In other words, we indicated in the

1979 proposal that preceded our 1980

approval that we could not fully

approve the UBR because it provided

exemptions from violations, and in our

subsequent actions, we did not

reanalyze the adequacy of the rule.

However, we did indicate in our most

recent re-numbering approval our intent

to require the State to correct the

deficiencies in the UBR.

Furthermore, since EPA issued the

1999 Policy, we have been working with

Utah in an attempt to change the UBR

on a cooperative basis. As noted in our

proposal, Utah acknowledged that the

provision could benefit from

clarification and initiated rulemaking

toward that end. In an April 18, 2002

letter, Utah also specifically committed

to address our concerns with the rule.

See 75 FR 70891. However, Utah never

completed a change to the UBR despite

our substantial efforts to help Utah

develop a revised rule that would meet

CAA requirements. Id. The delay that

has resulted from our attempt to reach

a consensus-based solution does not

diminish our authority to issue a SIP

call.

(g) Comment: Commenter asserts that

"there must be evidence of new

information that would explain how

Utah's SIP has somehow been

transformed from adequate to

substantially inadequate." Commenter

cites Clean Air Implementation Project

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

1998) for this proposition. Commenter

asserts that no such information has

been provided.

Response: Commenter's interpretation

would preclude EPA from changing its

interpretations and conclusions over

time or from determining that prior

approvals were a mistake, and issuing a

SIP call on such bases. CAA sections

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

constrain us in that way, and Clean Air

Implementation Project v. EPA did not

hold that a SIP previously found by EPA

to be adequate could not be

subsequently found to be inadequate

absent evidence of new information. On

the contrary, the case did not involve a

challenge to a SIP call at all, and the

statements the commenter refers to were

dicta involving a completely different

set of facts. 1 7

17 Clean Air Implementation Project v. EPA

addressed a challenge to EPA's credible evidence

rule and held that the challenge was not ripe for

decision.

21646

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

As a practical matter, our past

decisions are not infallible. They reflect

a decision made at a particular point in

time by a particular set of individuals

based on a particular understanding (or

misunderstanding) of facts, policy, and

law. Our 1999 Policy expressly

recognizes this: "A recent review of SIPs

suggests that several contain provisions

that appear to be inconsistent with this

policy, either because they were

inadvertently approved after EPA issued

the 1982-1983 guidance or because they

were part of the SIP at that time, and

have never been removed." 1999 Policy

at 1. Further, the 1999 Policy advised all

Regions to review the SIPs for their

States in light of the clarification and

take steps to insure that excess

emissions provisions in these SIPs are

consistent with the policy. Id. at 4.

Similarly, EPA's 1982 Policy explained

that the Agency, because it had been

inundated with proposed SIPs in the

early 1970's and had limited experience

processing them, had not given

sufficient attention to the "adequacy,

enforceability, and consistency" of SSM

provisions. Thus, "many SIPs were

approved with broad and looselydefined provisions to control excess

emissions." 1982 Policy at 1.

The 1999 Policy can be viewed as

refreshing EPA's institutional memory.

It reiterated and clarified EPA's

longstanding interpretation and

provided direction to EPA's regional

offices to review SIPs from their

respective States. This caused EPA

Region 8 to review SIPs for Utah and the

other States within the region. As noted

in our proposal, several Region 8 States

have submitted revisions to their SSM

rules in response to our review, and

EPA has approved revised rules for

Colorado and Wyoming. See 75 FR

70890. Our review of the Utah rule

revealed that it was inconsistent with

CAA requirements, and we initiated

sustained efforts to get the State to

revise the rule. The State did not revise

the rule. See 75 FR 70890-70891.

A review of facts here indicates that

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

interpretation that all excess emissions

must be treated as violations applied. As

discussed in our proposal for this

action, EPA said in its 1979 proposal on

the UBR that EPA "may not fully

approve Regulation 4.7 because it

exempts certain excess emissions from

being violations of the Air Conservation

Regulations" but then proposed to

approve the UBR anyway. Clearly, the

regulation did not comport with EPA's

interpretations regarding SSM

provisions in SIPs. However, with

almost no explanation, EPA justified its

approval based on a conclusion that any

exemptions granted by Utah "are not

applicable as a matter of federal law."

See 44 FR 28691. This did not obviate

the deficiency in the UBR. Also, EPA's

interpretation of that time-that

exemptions granted by Utah would not

affect Federal enforcement-could be

questioned and rejected in court. While

some commenters state that EPA's

enforcement discretion would not be

affected by the Utah executive

secretary's decision, others offer no such

concession. See, e.g., Utah

Manufacturers Association, et al.,

comment letter at 5 versus Utah

Industry Environmental Coalition, et al.,

comment letter at 14, which are in the

docket for this action. Furthermore,

Phillips Petroleum asserted in a 1997

EPA enforcement action that Utah's

non-violation determinations under the

UBR were binding on EPA. 18

While we disagree with the

commenter that a SIP call is only

allowed where there is new external

information that the SIP is invalid,19

facts since our 1980 approval, such as

arguments made in enforcement cases

contrary to EPA's interpretation, would

certainly qualify as new information

justifying a SIP call. Among other

things, the UBR is substantially

inadequate because it is burdened by

the uncertainty of whether EPA or

citizens may pursue independent

enforcement where the Utah executive

secretary decides an excess emission is

not a violation.

(h) Comment: Commenters state that

EPA mischaracterizes the Utah UBR in

that Utah's rule does not allow for

outright exemptions from BACT or

LAER limits, and does not undermine

protection of the NAAQS, PSD

increments, or visibility.

Response: We do not agree. Under the

UBR, excess emissions resulting from

1' In 1997, EPA initiated an enforcement action

against the Phillips Petroleum refinery in Davis

County, Utah when the State declined to pursue

enforcement. Among other things, EPA alleged that

Phillips had violated its one-hour emission limit

contained in the Utah SIP for the Salt Lake County

PM10 nonattainment area. The State, with little or

no apparent analysis, decided that all or nearly all

of the more than 1,000 exceedances EPA cited in

its complaint against Phillips were caused by

unavoidable breakdowns and were not violations

under the UBR. Phillips alleged in pleadings that

the State's decision precluded EPA enforcement as

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

decision and with Phillips' arguments, but the court

never decided the issue because a settlement was

reached. We have included in the docket for this

action various pleadings and documents from the

Phillips enforcement case that reflect the facts cited

herein.

19 We also may have been justified using our

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

have decided the better course here is to provide

the State the opportunity to revise the SIP through

the SIP call process.

unavoidable breakdowns are not

violations. We consider that an outright

exemption, which prevents enforcement

action where, for example, it may be

needed to protect the NAAQS. The

commenter's premise-that unavoidable

breakdowns will occur regardless of the

rule-assumes a continued right to

pollute regardless of whether such

emissions might undermine the very

purpose of the SIP-attainment and

maintenance of the NAAQS. It also

assumes that the UBR provides adequate

incentives to avoid malfunctions and

protect the NAAQS. We do not agree.

See our other responses.

(i) Comment: A commenter argues

that the UBR does not preclude

injunctive relief. The commenter cites

UDAQ's ability to pursue injunctive

relief if it decides the excess emissions

were not caused by an unavoidable

breakdown.

Response: The commenter says

nothing about EPA or citizen authority

where UDAQ decides, erroneously or

not, that the excess emissions were

caused by an unavoidable breakdown,

or where the excess emissions were in

fact caused by an unavoidable

breakdown as defined in the UBR. It is

our interpretation that injunctive relief

must be preserved regardless of the

State determination and regardless of

the cause of the exceedance. Protection

of the NAAQS should not be

subservient to a source's desire to

continue operating as it has, or its

"need" to continue polluting. As we

have explained in our various policy

statements over the years, all

exceedances must be treated as

violations to allow protection of the

NAAQS, and no defense to injunctive

relief is appropriate. See the 1982, 1983,

and 1999 Policies.

Also, as to UDAQ's enforcement

discretion, we find it likely that the UBR

would prevent the State from obtaining

injunctive relief where the breakdown

meets the criteria in the UBR to be

classified as unavoidable.

(j) Comment: Commenters state that

contrary to EPA's assertion, the

discretion afforded the UDAQ executive

secretary under the unavoidable

breakdown rule does not limit EPA's

ability to overfile or a third party's

ability to file a citizen's suit. Another

commenter states that EPA lacks a

reasonable basis to presume "uncertainty" about reserved

enforcement authority.

Response: The UBR language in

question reads: "The submittal of such

information shall be used by the

executive secretary in determining

whether a violation has occurred and/or

the need of further enforcement action."

21647

HeinOnline -- 76 Fed. Reg. 21647 2011
Federal Register/Vol. 76, No. 74/Monday, April 18, 2011/Rules and Regulations

The plain language appears to grant the

executive secretary the authority to

determine whether excess emissions

constitute a violation or not. Our

approval of that language could be

construed by a court as ceding that

authority to the State. A court could

conclude that it should not resort to the

interpretation we offered with our 1980

approval-that an exemption granted by

the Utah executive secretary would not

apply as a matter of Federal lawbecause the language of the regulation is

clear on its face.20 Also, we did not

repeat our 1980 interpretation in

subsequent approvals. In addition,

representations made by the

commenters here would not bind them

or other entities in subsequent

enforcement actions.

The State suggests that it would not

"forget EPA's interpretation of the law."

But, in its comments, the State does not

say it agrees with EPA's interpretation

or that it or another entity would not

argue against EPA's interpretation in an

enforcement action. As noted, at least

one defendant-Phillips Petroleumhas already argued against our 1980

interpretation. To our knowledge, the

State has never provided an

interpretation that the UBR was not

intended to and does not have a

preclusive effect on EPA or citizen

enforcement.

At best, the UBR language is

ambiguous, and in the face of this

ambiguity, a court could defer to the

State's interpretation, whose

interpretation of the rule is currently

unknown. Ambiguous language can

undermine the purpose of the SIP and

compliance with CAA requirements. 21

The commenters would have us

remain silent in face of the uncertainty

caused by the UBR language. The

reasonable course is to require the State

through our SIP call authority to change

the UBR to remove its potential

impediment to our and citizens'

exercise of our independent

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

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

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

could not pursue enforcement of SIP emission

limits where States had approved alternative limits

under procedures EPA had approved into the SIP);

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

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

discretion in interpreting State law). While we do

not agree with the holdings of these cases, we think

the reasonable course is to eliminate any

uncertainty about reserved enforcement authority

by requiring the State to revise or remove the

unavoidable breakdown rule from the SIP.

21 In approving Colorado's affirmative defense

rule for startup and shutdown, we specifically

disapproved one section of the rule that we felt

could have been construed to cede authority to

Colorado to determine whether a source had

established the elements of the affirmative defense.

71 FR at 8959 (February 22, 2006).

enforcement authority under CAA

sections 113 and 304.22 The UBR's

threat to our and citizens' independent

enforcement authority under the CAA

renders the SIP substantially

inadequate.

The State suggests that our action is

unreasonable because it has taken us so

long to recognize and address the

problem. As we noted above, issuance

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

particular, the 1999 Policy clarified that

SIPs should not include provisions

whereby a State's enforcement decision

would "bar EPA's or citizens' ability to

enforce applicable requirements." 1999

Policy at 3. The Phillips Petroleum case

also influenced us. The State does not

mention that we attempted to address

our concerns cooperatively with the

State since shortly after the 1999 Policy

was issued, and for many years

thereafter.

(k) Comment: One commenter

suggests that the potential preclusive

effect of the executive secretary's

violation/non-violation determinations

under the UBR may be "in keeping with

the role given to states in SIP matters."

Response: We disagree. Sections 113

and 304 of the Act clearly provide

independent enforcement authority to

EPA and citizens. While section 304

limits citizens' authority where a State

or EPA "has commenced and is

diligently prosecuting a civil action,"

nothing in the CAA suggests that

Congress intended or required States to

have exclusive authority to determine

whether an exceedance constitutes a

violation. Nor is there any rational

reason EPA should be relegated, as the

commenter suggests, to an action under

section 113(a)(2) of the Act-to

essentially wait for "widespread"

dereliction of duty on Utah's part-to

correct this problem in the UBR. Our

use of SIP call authority to correct the

problem is reasonable. We have

responsibility to implement and

interpret the CAA, and we reject the

commenter's interpretation that the

"balance of authority in Utah's SIP and

the UBR is in keeping with the role

given to states in SIP matters." Contrary

to the commenter's suggestion, we are

not required to wait for a court to

determine in the context of an

enforcement action whether the

potential preclusive effect of the UBR

language is consistent with the CAA.

Congress did not hamstring us in that

2 2 The UBR could be easily revised to address the

problem. The sentence in question could be

changed to read, "The submittal of such information

shall be used by the executive secretary in

determining whether to pursue enforcement

action."

way; instead it provided us with

authority to issue 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 of the

rule governing such events.

Response: First, as we explain above,

the UBR precludes injunctive relief

when the excess emissions fall within

the UBR's coverage. As we have

explained, this is inconsistent with the

CAA. Commenters do not address this,

but instead appear to assume the need

to pollute trumps protection of the

NAAQS.

Second, how "unavoidable" is defined

makes a difference. Depending on the

definition, different incentives with

respect to design, operation, and

maintenance are created. We find that

the criteria contained in the UBR are not

as extensive or rigorous as the criteria in

the 1999 Policy for asserting an

affirmative defense to penalty actions.

For example, the UBR indicates that

breakdowns caused by "poor

maintenance" or "careless operation" or "any other preventable upset condition

or preventable equipment breakdown"

shall not be considered unavoidable

breakdowns. Unlike the UBR, the 1999

Policy specifically addresses potential

design flaws in addition to issues with

maintenance and operation: "The excess

emissions were not part of a recurring

pattern indicative of inadequate design,

operation, or maintenance." The lack of

specificity in the UBR could lead a court

to conclude that the rule was not

intended to reach back to the design of

the facility or its control equipment. In

addition, the UBR does not indicate

who has the burden of proof regarding

claims of unavoidable breakdown. The

1999 Policy clearly provides that the

source has the burden to prove the

elements of the affirmative defense to

penalties.

Third, who decides whether a

breakdown qualifies as unavoidable

makes a difference. As we have

indicated, the UBR appears to give the

Utah executive secretary exclusive

authority to determine whether a

violation has occurred-i.e., whether a

breakdown was an unavoidable

breakdown. As noted, potential

preclusion of EPA and citizen

enforcement reduces the incentive for

sources to improve their design,

maintenance, and operation practices.

(m) Comment: Commenters assert that

Utah's Unavoidable Breakdown Rule is

generally consistent with EPA's criteria

in the 1999 Policy and provide their

own side-by-side comparison of the

21648

HeinOnline -- 76 Fed. Reg. 21648 2011
Federal Register/Vol. 76, No. 74/Monday, April 18, 2011/Rules and Regulations

1999 Policy's affirmative defense

provisions to the relevant provisions in

Utah's Unavoidable Breakdown Rule.

Commenters state that this comparison

shows the criteria contained in the 1999

Policy are addressed "in all material

respects" by the Utah UBR, and that it

is therefore difficult to understand

EPA's conclusion of substantial

inadequacy.

Response: The commenters have not

alleviated our concerns. In our proposal

and elsewhere in this notice, we

identify fundamental flaws in the UBR

that render the UBR substantially

inadequate regardless of the criteria for

determining whether a breakdown is

unavoidable.

We also disagree with the commenters

that the criteria are equivalent. We find

that the UBR lacks the specificity

contained in the 1999 Policy. For

example, the 1999 Policy indicates that

the source needed to use off-shift labor

and overtime, to the extent practicable,

to make repairs and needed to make

repairs expeditiously when it knew or

should have known that emissions

limits were being exceeded. This

specificity helps define the more general

admonition in the policy that the source

needs to employ good practices for

minimizing emissions. We have already

noted that the UBR criteria do not

appear to address proper design of the

facility, and they do not require

reporting of all breakdowns. Also, the

UBR does not require that the owner or

operator document its actions in

response to the breakdown with signed,

contemporaneous operating logs.

Finally, we note that one significant

difference between the affirmative

defense described in the 1999 Policy

and the UBR is that the affirmative

defense recognizes that a violation of

the emissions standard has occurred

and provides relief only for actions for

penalties. The UBR provides that the

excess emissions are excused and would

prohibit any action for penalties and

any action for injunctive relief.

(n) Comment: The terms of the UBR

are analogous to the criteria that EPA's

1982 and 1983 policies provided for

analyzing whether a malfunction ought

to spur enforcement action under the

enforcement discretion approach. The

UBR does not provide an automatic

exemption as described in those

policies.

Response: See our previous response.

Also, assuming the comment regarding

the criteria is relevant, we disagree with

the commenter. The UBR is inconsistent

with the 1982 and 1983 Policies in

several respects. Specifically, the 1983

Policy states that "EPA can approve SIP

revisions which incorporate the

'enforcement discretion approach.' Such

an approach can require the source to

demonstrate to the appropriate State

agency that the excess emissions,

though constituting a violation, were

due to an unavoidable malfunction. Any

malfunction provision must provide for

the commencement of a proceeding to

notify the source of its violation and to

determine whether enforcement action

should be undertaken for any period of

excess emissions." (Emphasis added).

The UBR does not require the State to

initiate a proceeding to notify the source

of its violation. Moreover, contrary to

the foregoing, the UBR specifically

provides that the executive secretary

may decide that the excess emissions

are not a violation, which could

preclude enforcement action by EPA or

citizens as well as injunctive relief.

Finally, the 1999 Policy clarified the

meaning of the term "automatic

exemption." As we explain elsewhere,

the UBR clearly provides an automatic

exemption.

(o) Comment: EPA fails to

acknowledge Utah Rule R307-107-1,

'Application', which states "Breakdowns

that are caused entirely or in part by

poor maintenance, careless operation, or

any other preventable upset condition

or preventable equipment breakdown

shall not be considered unavoidable

breakdown." Therefore, commenters

state EPA's complaint claiming that "the

rule's exemption reduces a source's

incentive to design, operate, and

maintain its facility to meet emission

limits at all times" is without merit.

Response: We disagree. First, the

quoted language is part of the criteria

contained in the UBR. See our responses

to comments comparing the criteria of

the UBR to the criteria contained in our

SSM policies. Second, considered as a

whole, we conclude that the UBR

reduces a source's incentive to meet its

emission limits at all times. We have

explained the basis for our view in our

responses to previous comments. In

particular, the rule appears to give the

executive secretary exclusive authority

to decide whether a breakdown meets

the criteria under the UBR and thus,

whether an exceedance is a violation.

(p) Comment: Commenters assert that

EPA's SIP call is inconsistent with the

Federal-State partnership as

contemplated in the CAA. Commenters

state that the CAA does not contemplate

mandates to require a State to modify its

SIP, without regard to environmental or

air quality benefits, simply because EPA

has a particular policy it wants to

advance.

Response: We are not acting at odds

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

minimum requirements for SIPs and

does not, as the commenters indicate,

limit EPA's action to simply reviewing

a SIP to determine whether it will

provide for attainment and maintenance

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

specific list of obligations that a State

must meet and we are acting to ensure

the Utah SIP meets those minimum

requirements. In particular, we are

acting to ensure that SIP emission

limits, and related permit limits, which

are for the purpose of attaining and

maintaining the health-based air quality

standards, protecting increments, and

improving visibility in national parks

and wilderness areas, can be enforced at

all times as contemplated by sections

110 and 302 of the Act. We are also

acting to ensure that Utah's SIP does not

undermine delegated national standards

like NSPS and NESHAPS.

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

and not EPA, to choose how they will

achieve assigned emission reduction

levels. Section 110 allows for a SIP call

only if the state is not achieving

NAAQS. As long as a state achieves the

applicable air quality standards,

Congress did not intend EPA to require

a plan revision merely because it

disagrees with the measure that a state

implements.

Response: We are not interfering with

Utah's selection of SIP emissions limits.

We are acting to ensure that one element

of the SIP-the UBR-is modified or

removed so that it does not interfere

with one of the minimum requirements

of the CAA-that the SIP limits relied

on to attain and maintain the NAAQS,

protect increments, and protect

visibility apply and be enforceable at all

times. Furthermore, in the context of

NSPS and NESHAPS, to which the UBR

also applies, it is up to EPA to select

emission limits (and any exemptions),

not the State.

We disagree that section 110 only

allows a SIP call if the State is not

achieving the NAAQS. One commenter

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

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

but that court was addressing whether

EPA could impose specific control

requirements through its NOx SIP call

and did not reach the holding the

commenter alleges. Such a holding

would be inconsistent with the plain

language of section 110 and the

legislative history. Congress specifically

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

1977 to add the phrase, "or to otherwise

comply with any additional

requirements established under this

chapter" to the language, "is

substantially inadequate to attain the

national ambient air quality standard."

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

21649

HeinOnline -- 76 Fed. Reg. 21649 2011
Federal Register/Vol. 76, No. 74/Monday, April 18, 2011/Rules and Regulations

in accord. In other words, there are

other instances in which a SIP call may

be issued. Fundamentally, SIP limits

must be enforceable and apply

continuously to meet CAA requirements

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

302(k)), and where these requirements

are not met, a SIP call is warranted.

Furthermore, as noted already, a

number of areas in Utah are designated

nonattainment and have violated, or are

violating various NAAQS.

(z') Comment: Some commenters assert

that allowing EPA to proceed with a SIP

call here in the absence of data showing

the UBR has caused specific NAAQS

violations could set the stage for

unfettered, arbitrary EPA SIP calls with

respect to any number of state rules. A

commenter asserts that EPA's SIP call

runs counter to past EPA SIP calls.

Another asserts that EPA erroneously

finds that the SIP call does not have

Federalism implications. A commenter

references an EPA action under CAA

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

Nevada malfunction rule to argue that

the SIP call is arbitrary.

Response: We explain above why we

think we have a valid basis for the SIP

call. We note that we have rarely issued

SIP calls, but in any event, the

commenters' fears about potential future

EPA SIP calls are irrelevant to this

action. The question is whether we have

reasonably concluded that the UBR

renders the Utah SIP substantially

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

We conclude we have. Whether other

SIPs or SIP rules are substantially

inadequate will depend on the language

of those rules and facts relevant to them.

The comment that this SIP call is

inconsistent with past EPA SIP calls is

also inaccurate. While in some cases

EPA has issued SIP calls to address

specific violations of the NAAQS, EPA

has also issued a SIP Call notifying

certain States that their SIPs were

inadequate to comply with sections

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

the SIPs could be interpreted to limit

the types of evidence or information

that could be used for determining

compliance with and establishing

violations of emissions limits. See 62 FR

8314, 8327 (February 24, 1997); October

20, 1999 letter from William Yellowtail

to Governor Marc Racicot. We stand by

our conclusion that the SIP call does not

have Federalism implications within the

meaning of Executive Order 13132; we

are issuing a SIP call as required by

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

the CAA, following a finding of

substantial inadequacy. Finally,

regarding the vague reference (without

citation) to EPA Region 9's proposal to

address issues with the Nevada SIP

using the authority of CAA section

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

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

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

additional tool to ensure that SIPs are

consistent with the requirements of the

Act, and whether it could have been

used in this instance does not implicate

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

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

the extent the commenter is suggesting

that our SIP call is arbitrary because

EPA Region 9 has not finalized its

proposed 110(k)(6) action, we

respectfully disagree.

(s) Comment: Utah's UBR is "clearly

less stringent than the CAA and EPA

rules and guidance."

Response: We agree that the UBR does

not meet minimum CAA requirements

and thus is substantially inadequate.

C. Sanctions

(a) Comment: Commenter asserts that

EPA fails to meet the requirements to

impose mandatory sanctions under the

CAA because sanctions can only be

triggered by a "finding of substantial

inadequacy." The commenter also

asserts that sanctions are unwarranted

because Utah has always acted in good

faith to involve all stakeholders,

including EPA, in an attempt to craft a

clarified rule. The commenter expresses

concern that sanctions would harm

Utah's economy in these difficult

economic times and indicates that EPA"

should be circumspect in brandishing

its sanctions club."

Response: This rulemaking action

finalizes our finding of substantial

inadequacy under CAA section

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

submit a SIP revision in response to the

finding of substantial inadequacy. If the

State fails to submit the required SIP,

the 18-month period before mandatory

sanctions apply under section 179 will

be triggered.

Under CAA section 179, whether or

not Utah has acted in good faith to

change the UBR is irrelevant; we lack

authority to forestall the mandatory

sanctions if EPA determines Utah has

failed to respond to the SIP call or

submits an incomplete or disapprovable

SIP. Utah, however, has the power to

avoid sanctions and any economic

impacts to the State by submitting an

approvable SIP addressing our SIP call.

We have provided additional time, at

the State's request, for the State to make

its submission. Finally, as we noted in

our proposal, other States in the Region

have changed their SSM rules and

gained EPA's approval.

(b) Comment: If EPA were to impose

statewide sanctions, it would violate 40

CFR 52.30(b) if the criteria of 40 CFR

52.30(c) are met by one or more political

subdivisions within the State.

Response: No commenter has

suggested that a political subdivision

within Utah meets the criteria of 40 CFR

52.30(c). However, as described in the

"Final Action" section of this action, we

are deferring a decision on whether to

impose sanctions under section 110(m)

and will consider any comments on the

issue of imposing sanctions under

section 110(m) if and when we take

final action on this issue in the future.

(c) Comment: EPA's discretion under

the CAA "must not be unreasonable or

arbitrary. Since the EPA has not

identified any reasons upon which

consideration of statewide sanctions

was based, the EPA has not provided

adequate notice to the public of whether

the exercise of discretionary authority

under CAA Section 110(m) is

appropriate in this case."

Response: While we provided a

reason in our proposal-namely, that

the UBR applies statewide-we are

deferring a decision on whether to

impose discretionary sanctions.

(d) Comment: Transportation and

mobile sources should not be punished

for a rule governing industry operations.

The commenter therefore recommends

that EPA "include a 'Protective finding'

in the SIP call for mobile sources,"

which "would prevent the automatic

'freeze' of conformity and allow for

operations to continue for at least two

years after an EPA disapproval takes

effect." Another commenter expresses

concern that sanctions would negatively

impact transit services.

Response: EPA does not intend to

"punish" anyone. The purpose of

sanctions is to encourage corrective

action by the State. The applicable

sanctions are specified by Congress, not

EPA. As noted above, sanctions can be

avoided altogether by Utah's timely

submission of an approvable revision to

the SIP. Regarding the suggestion that

we provide a protective finding, our

interpretation is that disapproval of any

rule submitted in response to this SIP

call would not result in a conformity

freeze because the revision at issue is

not a control strategy SIP revision

governed by 40 CFR 93.120. The

metropolitan planning organization

could continue to make conformity

determinations even after such a

disapproval. Also, for the same reason,

even if highway sanctions are triggered

by future disapproval of a revised

breakdown rule, a conformity lapse

would not occur because we would not

be disapproving a control strategy SIP

revision. If highway sanctions are

triggered, certain projects, such as

transit projects and highway safety and

21650

HeinOnline -- 76 Fed. Reg. 21650 2011
Federal Register/Vol. 76, No. 74/Monday, April 18, 2011/Rules and Regulations

maintenance projects, could still go

forward. See 61 FR 14363 (April 1,

1996), which contains the Federal

Highway Administration's sanction

exemption criteria policy.

(e) Comment: EPA sanctions on

transportation funding might slow

improvements to transportation projects

across Utah, potentially resulting in

diminished air quality in both

attainment and nonattainment areas

across the state. Sanctions on

transportation funding might also stifle

growth.

Response: See our previous responses.

As noted, the sanctions would be

mandatory in certain areas. The

sanctions can be avoided through

appropriate State action, and certain

projects can proceed even if highway

sanctions are triggered. As noted, we are

deferring a decision on whether to

impose discretionary sanctions under

CAA section 110(m).

(f) Comment: EPA should not impose

statewide sanctions, because this would

punish portions of the state that are in

compliance with the CAA.

Response: As noted, we are deferring

a decision on whether to impose the

sanctions under CAA section 110(m).

(g) Comment: Applying sanctions

only in nonattainment areas rather than

statewide would be inconsistent with

the CAA, as the intent of the CAA "is

not simply to attain the NAAQS and

other CAA requirements, but to

maintain compliance."

Response: As noted, we are deferring

a decision regarding the application of

sanctions statewide. However, we note

that the CAA provides us with

discretion to expand the scope of the

sanctions; it does not require we do so.

(h) Comment: EPA should apply

sanctions if Utah fails to correct the

UBR.

Response: As noted, mandatory

sanctions will apply if the relevant

triggering events occur. We are deferring

a decision regarding the application of

discretionary sanctions. See the "Final

Action" section of this action, above.

D. Time Period for Response to SIP Call

(a) Comment: Utah requests that EPA

grant the entire 18 months allowed by

section CAA 179(a). Twelve months is

an extremely short time to gather

stakeholders, build consensus, draft a

proposed rule, and allow for public

participation, especially considering the

considerable workload UDAQ faces

aside from this SIP Call. Utah states that

a response time of less than 18 months

may cause a change in the prioritization

and possibly compromise other air

quality efforts by the State including the

development of its Regional Haze Rule,

the development of its PM 2.

5 SIP

revision, and efforts to meet the lower

ozone standard. Another commenter

believes that 12 months is an

appropriate response period, while

another argues for six months.

Response: In our proposed

rulemaking action (see 75 FR 70893), we

proposed that 12 months would be an

appropriate length of time for Utah to

respond to this SIP call. We viewed this

as an acceptable time frame given the

history with the State of Utah regarding

the UBR and the time it has taken other

States to submit SIPs addressing SSM

rules. We have considered the State's

comments and appreciate the resource

burden a 12-month time frame would

pose for UDAQ in view of the State's

current work with its Regional Haze SIP

revision, the development of its PM 2.5

attainment SIP revision (for three PM 2.

5

nonattainment areas), and the potential

for additional resource requirements to

meet EPA's forthcoming reconsidered 8-

hour ozone NAAQS. We also conclude

that six months may not provide the

State with sufficient time to revise the

rule and still provide a reasonable

opportunity for public input. Therefore,

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

authority to establish "reasonable

deadlines" up to 18 months for a State

to respond to a SIP call, and in view of

the resource requirements that this SIP

call will impose on the State in addition

to those noted above, we have decided

to grant the full 18 months for response

as allowed by the CAA. We consider

this a reasonable time period for the

State to revise the rule, provide for

public input, process the SIP revision

through the State's procedures, and

submit the SIP revision to us. We

encourage the State to work with us on

appropriate rule language and to submit

the SIP revision as soon as possible.

E. Miscellaneous Comments

(a) Comment: The commenters

support EPA's action, and believe the

action benefits the health and wellbeing of Utah citizens.

Response: We acknowledge receipt of

the comment and the support for our

proposal.

(b) Comment: Utah's UBR does not

give industry incentive to design,

operate and maintain equipment to meet

emission limits at all times.

Response: We agree.

(c) Comment: The Utah UBR prevents

the opportunity for citizen enforcement

or injunctive relief.

Response: We agree that the UBR may

preclude citizen enforcement or

injunctive relief.

(d) Comment: EPA has notified Utah

of the need to change their UBR on

many occasions.

Response: We agree.

(e) Comment: SSM plans should be

part of Title V permits so that

information such as emission limits will

be available to the public.

Response: This comment is not

directly relevant to our action today,

which does not address the treatment of

SSM plans in Title V permits.

(f) Comment: EPA should include

Utah R307-415-(7)(g) "Startup Shut

down and Malfunction" in its analysis.

Response: Our review indicates that

Utah rule R307-415-(7)(g) is part of

Utah's Title V operating permit

regulations and is titled "Permit

Revision: Reopening for Cause." Utah's

Title V regulations are separate from

and not approved as part of the SIP.

Thus, our SIP call authority is not

applicable to those regulations. We were

unable to find any discussion of startup,

shutdown, or malfunction in R307-415-

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

more extensively to the comment.

V. Statutory and Executive Order

Reviews

Under Executive Order 12866 (58 FR

51735, October 4, 1993), this action is

not a "significant regulatory action" and

therefore is not subject to review by the

Office of Management and Budget. For

this reason, this action is also not

subject to Executive Order 13211,

"Actions Concerning Regulations That

Significantly Affect Energy Supply,

Distribution, or Use" (66 FR 28355, May

22, 2001).

This action only requires the State of

Utah to revise Utah rule R307-107 to

address requirements of the CAA.

Accordingly, I certify that this action

will not have a significant economic

impact on a substantial number of small

entities under the Regulatory Flexibility

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

action does not impose any

requirements on small entities.

Since the only costs of this action will

be those associated with preparation

and submission of the SIP revision, EPA

has determined that this action does not

include a Federal mandate that may

result in expenditures of $100 million or

more to either State, local, or Tribal

governments in the aggregate, or to the

private sector in any one year.

Accordingly, this action is not subject to

the requirements of sections 202 or 205

of the unfunded mandates reform act

(UMRA).

In addition, since the only regulatory

requirements of this action apply solely

to the State of Utah, this action is not

subject to the requirements of section

21651

HeinOnline -- 76 Fed. Reg. 21651 2011
Federal Register/Vol. 76, No. 74/Monday, April 18, 2011/Rules and Regulations

203 of UMRA because it contains no

regulatory requirements that might

significantly or uniquely affect small

governments.

Since this action imposes

requirements only on the State of Utah,

it also does not have Tribal

implications. It will not have a

substantial direct effect on one or more

Indian Tribes, on the relationship

between the Federal Government and

Indian Tribes, or on the distribution of

power and responsibilities between the

Federal Government and Indian Tribes,

as specified by Executive Order 13175

(65 FR 67249, November 9, 2000).

This action also does not have

Federalism implications because it will

not have substantial direct effects on the

States, on the relationship between the

national government and the States, or

on the distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132 (64 FR 43255,

August 10, 1999), because it will simply

maintain the relationship and the

distribution of power and

responsibilities between EPA and the

States as established by the CAA. This

SIP call is required by the CAA because

EPA has found the current SIP is

substantially inadequate to attain or

maintain the NAAQS or comply with

other CAA requirements. Utah's direct

compliance costs will not be substantial

because the SIP call requires Utah to

submit only those revisions necessary to

address the SIP deficiencies and

applicable CAA requirements.

EPA interprets Executive Order 13045

"Protection of Children from

Environmental Health Risks and Safety

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

applying only to those regulatory

actions that concern health or safety

risks, such that the analysis required

under section 5-501 of the EO has the

potential to influence the regulation.

This action is not subject to EO 13045

because it does not establish an

environmental standard, but instead

requires Utah to revise a State rule to

address requirements of the CAA.

Section 12 of the National Technology

Transfer and Advancement Act of 1995

requires Federal agencies to evaluate

existing technical standards when

developing a new regulation. To comply

with the National Technology Transfer

and Advancement Act, EPA must

consider and use "voluntary consensus

standards" (VCS) if available and

applicable when developing programs

and policies unless doing so would be

inconsistent with applicable law or

otherwise impractical. In making a

finding of a SIP deficiency, EPA's role

is to review existing information against

previously established standards. In this

context, there is no opportunity to use

VCS. Thus, the requirements of section

12(d) of the National Technology

Transfer and Advancement Act of 1995

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

This action does not impose an

information collection burden under the

provisions of the Paperwork Reduction

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

since it only requires the State of Utah

to revise Utah rule R307-107 to address

requirements of the CAA.

The Congressional Review Act, 5

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

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA will submit a

report containing this action and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of the rule in

the Federal Register. A major rule

cannot take effect until 60 days after it

is published in the Federal Register.

This action is not a "major rule" as

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

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

Air Act, petitions for judicial review of

this action must be filed in the United

States Court of Appeals for the

appropriate circuit by June 17, 2011.

Filing a petition for reconsideration by

the Administrator of this final rule does

not affect the finality of this action for

the purposes of judicial review nor does

it extend the time within which a

petition for judicial review may be filed,

and shall not postpone the effectiveness

of such rule or action. This action may

not be challenged later in proceedings to

enforce its requirements. (See section

30 7(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Carbon monoxide,

Incorporation by reference,

Intergovernmental relations, Lead,

Nitrogen dioxide, Ozone, Particulate

matter, Reporting and recordkeeping

requirements, Sulfur oxides, Volatile

organic compounds.

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

Dated: March 31, 2011.

James B. Martin,

Regional Administrator, Region 8.

[FR Doe. 2011-9215 Filed 4-15-11; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 112

[EPA-HQ-OPA-2008-0821; FRL-9297-3]

RIN 2050-AG50

Oil Pollution Prevention; Spill

Prevention, Control, and

Countermeasure (SPCC) RuleAmendments for Milk and Milk Product

Containers

AGENCY: Environmental Protection

Agency.

ACTION: Final rule.

SUMMARY: The U.S. Environmental

Protection Agency (EPA or the Agency)

is amending the Spill Prevention,

Control, and Countermeasure (SPCC)

rule to exempt all milk and milk

product containers and associated

piping and appurtenances from the

SPCC requirements. The Agency is also

removing the compliance date

requirements for the exempted

containers.

DATES: This final rule is effective on

June 17, 2011.

ADDRESSES: The public docket for this

rulemaking, Docket ID No. EPA-HQOPA-2008-0821, contains the

information related to this rulemaking,

including the response to comments

document. All documents in the docket

are listed in the index at http://

www.regulations.gov. Although listed in

the index, some information may not be

publicly available, such as Confidential

Business Information (CBI) or other

information the disclosure of which is

restricted by statute. Certain other

material, such as copyrighted material,

will be publicly available only in hard

copy. Publicly available docket

materials are available either

electronically at http://

www.regulations.gov or in hard copy at

the EPA docket, EPA/DC, EPA West,

Room 3334, 1301 Constitution Ave.,

NW., Washington, DC. The Public

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

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

excluding legal holidays. The telephone

number of the Public Reading Room is

202-566-1744, and the telephone

number to make an appointment to view

the docket is 202-566-0276.

FOR FURTHER INFORMATION CONTACT: For

general information, contact the

Superfund, TRI, EPCRA, RMP, and Oil

Information Center at 800-424-9346 or

TDD at 800-553-7672 (hearing

impaired). In the Washington, DC

metropolitan area, contact the

Superfund, TRI, EPCRA, RMP, and Oil

21652

HeinOnline -- 76 Fed. Reg. 21652 2011