150 North 1950 West • PO Box 144820 • Salt Lake City, UT 84114-4820 • phone (801) 536-4000 • fax (801) 536-4099 

T.D.D. (801) 536-4414 • www.deq.utah.gov

State of Utah 

Department of 

Environmental Quality 

Dianne R. Nielson, Ph.D. 

Executive Director 

DIVISION OF AIR QUALITY 

Richard W. Sprott 

Director 

JON M. HUNTSMAN, JR. 

Governor 

GARY HERBERT 

Lieutenant Governor

DAQ-008-06 

M E M O R A N D U M

TO: Air Quality Board 

THROUGH: Richard Sprott, Executive Secretary 

FROM: Colleen Delaney, Environmental Scientist 

 Jim Schubach, Environmental Engineer 

DATE: February 24, 2006 

SUBJECT: Final Adoption: Repeal and Re-enact “R307-405, Permits: Major Sources 

in Attainment or Unclassified Areas (PSD)”; Amend R307-110-9 and State 

Implementation Plan Section VIII, Prevention of Significant Deterioration. 

On November 2, 2005, the Board proposed changes to R307-405, Permits: Major Sources in Attainment or 

Unclassified Areas (PSD), and State Implementation Plan Section VIII, Prevention of Significant 

Deterioration. A 45-day public comment period was held, and a public hearing was conducted on 

December 14, 2005. A summary of comments received by UDAQ and the staff response is attached to this 

memo. 

Recommendations: UDAQ recommends that the Board adopt R307-405, State Implementation Plan 

Section VIII, and R307-110-9 with the changes that are described in the response to comments (see 

attached revisions to R307-405). 
DAQ-008-06 

Page 2 

NSR REFORM RULE - COMMENTS AND RESPONES R307-405 

(Unless otherwise noted, all comments are from a letter signed by the following: American 

Association of University Women, Utah Friends of Great Salt Lake, Grand Canyon Trust, 

Heal Utah, League of Women Voters of Salt Lake, League of Women Voters of Utah, Rocky 

Mountain Office of Environmental Defense, Southern Utah Wilderness Alliance, Utah 

Chapter of the Sierra Club, Utah Progressive Network, Wasatch Clean Air Coalition, 

Western Resource Advocates, Jane Bowman, M.D., Louis Borgenicht, M.D., Zell A. McGee, 

M.D. October 31, 2005) 

1. The NSR Reform rule will allow many more modifications at existing major sources 

than under the current NSR rules. 

Response: UDAQ has evaluated the air quality impact of the NSR Reform provisions in 

Utah. The major source permitting requirements in attainment areas (the PSD permitting 

program) are only a portion of Utah’s overall permitting requirements, and the effect of the 

NSR Reform provisions must be viewed in the context of the entire program. 

A review of the PSD permits that have been issued in recent years shows that all of these 

permits were either for new sources that would not be affected by the rule, or were for big 

modifications that would be subject to the PSD program under both the new and the old 

rules. UDAQ has not identified any past PSD projects that would not have been subject to 

PSD under the new NSR reform provisions. 

If a modification that would have required PSD review is no longer subject to those 

provisions because of the changes to applicability under NSR Reform, UDAQ does not 

believe that emission increases will occur. Utah requires all sources, both major and 

minor, to apply best available control technology (BACT) when an emission unit is 

modified. Therefore, even when a modification is not considered a major modification, 

the source must still apply BACT. The net effect is that emissions will not change if a 

modification is reviewed under the minor source program rather than the PSD program. 

UDAQ analyzed 14 different scenarios to determine how a modification would be affected 

by the change in applicability provisions. The scenarios were chosen to focus on the types 

of changes that would no longer be subject to the PSD rule. The analysis looked at 

whether a modification would be subject to the old PSD provisions, new PSD provisions, 

minor source permitting program, and minor source modeling requirements. In 12 of the 

14 scenarios, BACT would be required for the modification even if the modification no 

longer met the applicability provisions of the PSD rule. The two exceptions occurred for 

modifications where emissions from the source were decreasing. Under these scenarios, a 

modification that would formerly have been reviewed under the PSD program could be 

constructed without the requirement to apply BACT. This is the type of scenario where 

the PSD rule is currently creating a disincentive for sources to reduce emissions. UDAQ 

has had inquiries from a number of sources that wanted to install pollution control 

equipment or switch to a cleaner fuel, but chose not to continue with the project because 

the permitting requirements were too much of a disincentive. UDAQ believes that under 

these two scenarios it is more likely that the applicability changes will encourage sources 
DAQ-008-06 

Page 3 

to reduce emissions, resulting in an overall emission decrease due to the adoption of the 

applicability provisions. 

2. The Utah state permitting rule will not ensure that emissions from existing major 

sources in Non-attainment areas will not increase. The Utah permitting rule does not 

require LAER control technology or emissions offsetting for minor modifications in 

non-attainment areas. 

Response: The current rule revision is focused on the major source permitting 

requirements in attainment areas (PSD permitting program). The nonattainment area 

requirements in R307-403 have not been changed. UDAQ will evaluate the effects of 

NSR reform in nonattainment areas in a future rulemaking. 

3. NSR Reform rule will benefit older, grandfathered sources, allowing upgrades and 

life extension projects without either the installation of pollution control equipment 

or evaluation of air quality impacts. 

Response: As described in the response to comment #1, the effects of NSR Reform must 

be viewed within the context of Utah’s entire permitting program. Utah’s minor source 

permitting program, in combination with SIP requirements in nonattainment areas, has 

been very effective over the last 30 years and there are very few grandfathered sources left 

in the state. In addition, many sources that used to qualify as major sources are now 

considered minor sources due to emission reductions. 

UDAQ reviewed the emission inventory, operating permits, and approval orders to 

estimate the number of sources in the state that are currently considered major sources 

under the PSD permitting program. The review focused on the attainment areas of the 

state because the nonattainment area provisions are not affected by the current rule change. 

UDAQ identified 29 potential major sources. Of these sources, 7 have undergone PSD 

review and 14 have been regulated by Utah’s minor source program, SIPs, MACT 

standards or other requirements that have required emission limitations and emission 

controls. There were only 8 sources where the major emission units were grandfathered. 

One of these sources was a small natural-gas burning power plant, and the other 7 were 

natural gas compressor stations in the Uintah Basin. These sources are all relatively small, 

they are burning a clean fuel, and if the compressor engines were to be modified in the 

future it would not be possible to replace these units with similar technology because 

today’s compressor engines are designed to be much cleaner than engines built in the 

1950’s or 1960’s. Other states may have a large number of old, grandfathered sources, but 

that is not the case in Utah. As described in the response to comment #1, modifications to 

these grandfathered units would likely require the installation of BACT under Utah’s 

minor source permitting program even if the modification was not considered a major 

modification under the PSD program. 
DAQ-008-06 

Page 4 

4. Given that the DC Court vacated two of the original 2002 programs (Clean Unit 

exemption and Pollution Control Projects) indicates that additional assurances are 

needed to show that the remaining programs do not increase emissions in Utah. 

Response: As described in the previous comments, UDAQ analyzed the air quality 

impact due to the adoption of NSR reform in Utah, and concluded that the new 

applicability provisions would not increase emissions in Utah, and may actually decrease 

emissions due to the removal of current disincentives. This analysis did not consider the 

effects of the Clean Unit and Pollution Control Project exemptions because these 

provisions had already been vacated by the DC Court. UDAQ cannot comment on how 

removal of these two provisions would affect the national analysis of NSR Reform, but 

because these provisions were not included in Utah’s analysis the additional assurances 

that have been requested have already been addressed. 

5. Given the uncertainties associated with the new rule an air quality analysis is needed 

to determine the impact of the new rule change on emissions in Utah. 

Response: It is UDAQ’s considered opinion that the provisions of the reform rule will not 

weaken the combined Federal and State NSR program in Utah. The development of the 

EPA’s NSR rule has been a ten year process that included input from air quality experts 

across the country including state and local air quality agencies, advocacy groups, industry 

groups and the public. EPA also issued a technical analysis of the anticipated air quality 

impacts of the NSR rule in December of 2002 and an update in 2003. UDAQ’s rule 

development was a two year process that included five stakeholder meetings, an NSR 

website to present current information on the rule development and an e-mail outreach 

program to inform stakeholders of the latest rule changes. As described in the previous 

comments, UDAQ analyzed the air quality impact due to the adoption of NSR reform in 

Utah, and concluded that the new applicability provisions would not increase emissions in 

Utah, and may actually decrease emissions due to the removal of current disincentives. 

The reform rule was finalized December 31, 2002. Ten northeastern states filed a 

challenge to the rule in the Court of Appeals for the District of Columbia (DC Court). The 

Court issued its decision June 2005 (New York v EPA). The Court found the following 

reform elements to be permissible interpretations of the Clean Air Act (CAA): 1. The 

Actual to projected actual applicability test, 2. the ten year look back period for baseline 

actual emissions calculations, 3. the use of the demand growth exclusion, 4. the Plant-wide 

applicability program and 5. the Court concluded the CAA unambiguously defines 

emissions increase in terms of actual emissions. The DC Court also found that all 

procedural challenges related to lack of notice to be without merit. Finally the Court 

rejected challenges to EPA’s technical analysis. Based on the combined efforts of the EPA 

and UDAQ the Division does not anticipate negative impacts on air quality due to the NSR 

reform rule. 

UDAQ does not anticipate any increase in air emissions due to the reform rule and has 

recommended the rule to the Air Quality Board for approval. EPA Region VIII has 

indicated that they expect state agencies to either submit a reform rule revision by January 
DAQ-008-06 

Page 5 

2, 2006 or demonstrate a good faith effort to develop a rule for adoption early in 2006. 

Region VIII has indicated that the consequences of not pursuing a reform package could 

include sanctions and eventually the promulgation of a Federal Implementation Plan (FIP). 

Based on the merits of the reform rule UDAQ does not see any advantage in challenging 

EPA on the reform rule. 

6. Utah’s state permitting program will not ensure that emissions from major sources 

will not increase because Utah has exemptions that could allow modifications that 

escape major source NSR to also escape minor source NSR. 

Response: As described in the previous comments (see comment 1), UDAQ evaluated a 

number of different scenarios to determine whether modifications that would no longer be 

subject to PSD would still be reviewed under Utah’s minor source program. Utah’s minor 

source permitting program has a number of exemptions that are located in R307-401-9 

through 16. Most of these exemptions, by their nature, would only apply to minor sources. 

The two that could possibly apply to PSD major sources are R307-401-11, Replacementin-kind Equipment and R307-401-12 Reduction in Air Contaminants. 

The replacement-in-kind rule is restrictive, and has been modified to contain some of the 

more specific language regarding eligibility that are found in the PSD rule. UDAQ has not 

found that this rule has been used by sources to avoid updated technology because sources 

have an incentive to upgrade to newer, more efficient units. In addition, older 

technologies are often no longer available. 

Sources that are decreasing emissions are exempted from Utah’s minor source program 

under R307-401-12. As described in the response to comment #1, UDAQ believes that the 

current requirement is acting as a disincentive for sources to install pollution controls or to 

increase the efficiency of older emission units. The removal of the disincentive from both 

the PSD program and the minor source program is more likely to decrease emissions in 

Utah than to increase emissions. 

7. Utah’s statewide permitting program does not require modeling for minor 

modifications to major sources to ensure compliance with the NAAQS, PSD 

increments, or protect Class I areas. 

Response: R307-410-3 (renumbered to R307-410-4 in the proposal) requires modeling 

for new or modified sources with emissions of 40 tons/yr of SO2 or NOx, 5 tons/yr of 

PM10 fugitive emissions, 15 tons/yr of PM10 non-fugitive emissions, 100 tons/yr CO, or 

0.6 tons/yr of lead. These levels are significantly below the 250 tons/year threshold in the 

PSD program for determining applicability. In addition, UDAQ has the ability to do 

modeling in-house if there is reason to suspect that a source would cause a violation of the 

NAAQS. R307-410 also requires modeling for hazardous air pollutants. 

8. The recent increases in regional pollution, in Utah, including PM 2.5, and ozone as 

well as the introduction of more stringent PM standards by EPA in 2006 would be 
DAQ-008-06 

Page 6 

additional information indicating the need for a Utah specific air quality impact 

analysis. 

Response: The State of Utah adopted a SIP in 2003 to address regional haze. This SIP 

will ensure progress towards reducing haze that is affecting Utah’s national parks. 

Revisions to the SIP are due in 2008 and then each 10 years after that date. The State of 

Utah is working with other western states to understand the regional impacts of ozone and 

PM2.5 and anticipates that air quality improvements on the west coast will help regional 

issues as well. In addition, Utah’s effective minor NSR program has led to on-going 

emission reductions. 

9. The new rule would allow sources to use higher baseline actual levels which will 

result in fewer modifications triggering major NSR review. 

Response: The current PSD rule allows a source to use a different baseline period if that 

is more representative of normal operations. The rule also encourages sources to either 

time their permit increases based on production levels, or to increase their emissions to 

increase their baseline emissions. The revised rule will remove these disincentives. Even 

more importantly, Utah’s minor NSR program will still require modifications that are not 

considered “major modifications” to apply the best available control technology to the 

modified emissions unit. As shown in Utah’s analysis of the air quality impact of adopting 

NSR reform, the combination of the PSD program with the minor NSR program will 

ensure that emissions will not increase even if sources are no longer subject to the PSD 

program. 

10. The State of Utah does not have adequate information to determine actual emissions 

under the ten year look back period allowed under the new baseline actual rule. The 

State of Utah should consider using a five year look back period rather than the ten 

year allowed under the new rule. 

Response: Under the provisions of R307-405 it is the source’s responsibility to 

demonstrate baseline emissions. UDAQ will be able to compare this information with 

emissions inventory submittals in most cases and resolve any discrepancies with the 

source. If the source is not able to adequately demonstrate emissions for the requested 

baseline period then the baseline period will not be acceptable. A five-year look back 

period will not be any easier to demonstrate than a ten-year look back period. 

11. Comment: Section 110(1) of the CAA mandates that EPA may not approve a revision 

to Utah’s SIP if it would interfere with attainment of the NAAQS or with any other 

requirement of the CAA. Utah is obliged to conduct an analysis to ensure that any 

revisions to the NSR program will not adversely affect compliance with the CAA 

requirements. 

Response: The DC Court in New York v EPA reiterated its interpretation of the CCA 

regarding the division of responsibilities between State regulatory agencies and EPA with 

respect to the NSR program. The EPA is responsible for the development of NSR rules 
DAQ-008-06 

Page 7 

and programs and the State agencies are responsible of the implementation of the NSR 

program. The EPA is responsible for the development of NSR rules and therefore for 

complying with Section 110 of the CAA. The EPA mandate issued to State agencies to 

proceed with the reform rule is based on EPA’s determination that the implementation of 

the new rule will not interfere with the requirements of the CAA. 

While it is not the responsibility of the State of Utah to conduct an analysis to demonstrate 

compliance with CAA, as directed by the Utah Air Quality Board the Utah Division of Air 

Quality (UDAQ) studied the impact of the NSR reform rule on emissions in Utah. The 

Division found that the new NSR program would be as effective as the existing NSR 

program. It is UDAQ’s position that the new rule will improve the NSR program by 

eliminating disincentives in the existing rules that can discourage modernization of 

facilities while preserving the effectiveness of the NSR program (see Comment 1 and 5). 

12. Comment: In the introduction to the PSD SIP it states that "In 1977, Congress added 

language to the Clean Air Act to prevent significant deterioration of air quality in 

areas where the air quality was still pristine." The word "pristine" should be 

changed to "unimpaired" because not all PSD areas are clean. [Wasatch Clean Air 

Coalition] 

Response: UDAQ believes that the description is appropriate when describing the goals 

of Congress and the language has not been changed in the SIP. 

13. Comment: EPA lacked the necessary data to undertake a meaningful environmental 

impact analysis. 

Response: The District of Columbia Court of Appeals (DC Court) reviewed the issue of 

the adequacy of EPA’s NSR Reform rule environmental impact statement (EIS) in New 

York vs. EPA decided June 24, 2005. The court found that EPA in its original 2002 and 

the 2003 EIS documents had adequately responded to petitioner’s allegations. The DC 

court found that that EPA’s study was entitled to deference. 

As directed by the Utah Air Quality Board the Utah Division of Air Quality (UDAQ) 

studied the impact of the NSR reform rule on emissions in Utah and found that the new 

NSR program would be as effective as the existing NSR program and would eliminate 

disincentives in the existing NSR program that can hinder the modernization of sources 

(see Comment 1). 

14. Comment: The new rule will create State enforcement problems by not requiring 

upfront review of applicability determinations that could later require “after the fact 

enforcement” actions. 

Response: Sources making modifications using the reform rule are required to keep 

records under the following three conditions: 

1. The source uses the actual to projected actual test and makes an estimate of 

future actual emissions. 
DAQ-008-06 

Page 8 

2. The modification will not result in a significant net emissions increase. 

3. The source believes that there is a “reasonable possibility” that the modification 

may result in significant emissions increase. 

Under the existing NSR rules an applicability determination for a modification does not 

require any recordkeeping or reporting to regulatory agencies. The above requirements for 

a determination under the new rule will extend the requirements under the Federal NSR 

program to require both recordkeeping and reporting for applicability tests that are not 

significant. 

In the State of Utah all applicability determinations will be reviewed under either the State 

or Federal NSR programs. Any source modifications that results in an emissions increase 

are reviewed under the State NSR program. UDAQ does not anticipate that the reform rule 

will allow sources to undertake modification projects without agency review. 

15. Comment: The adoption of the Reform rule will place greater burden on the UDAQ 

to ensure compliance with the NSR requirements. 

Response: UDAQ does not anticipate that the review of NSR permits will be significantly 

altered as a result of the reform rule. The existing NSR state rule requires the review of all 

modifications at a source that would change air emissions. The reform rule requires a State 

review of all source modifications that increase air emissions. UDAQ does not anticipate a 

significant increase in permits associated with the new rule. The processing and review of 

a PSD source under the existing rules is a complex undertaking that has not been changed 

significantly. The changes to the rule will not add to the overall requirements of a PSD 

review. PSD sources comprise only a small percentage of the regulated sources in Utah 

(see Comment 1). UDAQ does not anticipate that reform rule changes will alter 

compliance inspections at PSD sources or add to the number of required inspections. 

16. Comment: The State of Utah is not required to submit the NSR reform rules. Under 

both Section 116 of the CAA and the DC Court decision (New York vs. EPA) the 

State could submit the current NSR program to EPA as a replacement for the NSR 

Reform rule. 

Response: A number of issues that were part of the New York v EPA court challenge 

were not addressed by the DC Court for lack of a factual record. One of those issues was 

the submittal of alternative NSR standards instead of the reform rule. UDAQ does not see 

any advantage to resubmitting the existing NSR rule given the rule development process 

and technical analysis under taken by EPA and UDAQ. It is UDAQ’s position that the new 

rule will improve the NSR program by eliminating disincentives in the existing rules that 

can discourage modernization of facilities while preserving the effectiveness of the NSR 

program. To resubmit the current NSR program in place of the reform rule would place the 

State of Utah at risk of Region VIII sanctions for no discernable reason. 

17. Comments: The State of Utah could adopt an alternative version of the NSR Reform 

rule based on the “model rule” menu of options prepared by STAPPA/ALAPCO. 
DAQ-008-06 

Page 9 

Response: As directed by the Utah Air Quality Board the Utah Division of Air Quality 

(UDAQ) studied the impact of the NSR reform rule on emissions in Utah and found that 

the new NSR program would be as effective as the existing NSR program. It is UDAQ’s 

position that the new rule will improve the NSR program by eliminating disincentives in 

the existing rules that can discourage modernization of facilities while preserving the 

effectiveness of the NSR program. Given that the Reform rule will not alter the 

effectiveness of the NSR program and does improve the existing rule UDAQ does not 

intent to adopt an alternative version of the reform rule. 

18. Comment: The new rule does not require review or documentation of the actual to 

projected actual test. Also the DC Court remanded the record keeping provisions of 

the reform rule applicability test for modifications. Utah’s adoption of the new rule is 

premature and should be postponed until EPA has responded to the DC Court. 

Response: Sources making modifications using the reform rule are required to keep 

records under the following three conditions: 

1. The source uses the actual to projected actual test and makes an estimate of 

future actual emissions. 

2. The modification will not result in a significant net emissions increase. 

3. The source believes that there is a “reasonable possibility” that the modification 

may result in significant emissions increase. 

Under the existing NSR rules, an applicability determination for a modification does not 

require any recordkeeping or reporting. The above requirements for a determination under 

the new rule extend the requirements under the Federal NSR program. In the State of Utah 

all applicability determinations will be reviewed under either the State or Federal NSR 

programs. All source modifications that result in an emissions increase are reviewed under 

the State NSR program. Any applicability determinations using the new actual to future 

actual test will have to be submitted to the State under the state NSR program. The 

“reasonable possibility” provision has been remanded to EPA by the DC Court for 

clarification. It is the position of UDAQ that the NSR program can be implemented while 

the EPA clarifies the “reasonable possibility” provision without altering the recordkeeping 

requirements of the reform rule. The remand to EPA will create an incentive for sources to 

maintain records for all modifications that utilize the new applicability test until the rule is 

clarified. 

 

19. Comment: Future actual emissions are not federally enforceable limits. 

Response: Sources making modifications that do not result in a significant net emissions 

increase are required to keep records under the conditions listed above (Comment 17). 

When those conditions apply, sources are required to maintain records for either 5 or 10 

years depending on the type of modification undertaken. The sources are also required to 
DAQ-008-06 

Page 10 

report to the appropriate regulatory agency emissions that are greater than the future actual 

emissions used in the applicability determination. No record keeping is required for source 

modifications that are not significant under the existing NSR rule. The requirements under 

the reform rule are an extension of NSR recordkeeping and reporting requirements. It is 

UDAQ’s position that the recordkeeping and reporting requirements of the reform rule 

with regards to applicability will be equivalent to the existing NSR program and in some 

case will be more stringent. 

 

20. Comments: The Plant-wide Applicability Limit (PAL) provisions lack adequate 

recordkeeping and reporting requirements to insure compliance. 

Response: The Plant-wide Applicability Limit provision of the NSR Reform rule requires 

the following monitoring, recordkeeping and reporting: 

1. Emissions from all emission units at the source must be monitored on a rolling 12 

month schedule. 

2. Source wide total emissions are reported on a rolling 12-month total for the ten 

year effective PAL term. 

3. The terms and conditions of an approved PAL become Title V applicable 

requirements. 

4. Under Title V an annual compliance certification, semi-annual monitoring and 

deviation reports are required. 

5. The PAL threshold emissions value is a federally enforceable limit specified in the 

PAL permit. 

6. The source must retain records of all required testing and monitoring data for at 

least five years from the date that the monitoring was done. 

The monitoring, record keeping and reporting requirements above are as stringent as those 

required for NSR major sources under the existing rule. It is the position of UDAQ that the 

recordkeeping provisions in the PAL rule are adequate to insure compliance. 

21. Comments: The PAL threshold limit will be inflated in two ways: the limit is 

calculated using the new ten year baseline actual look back period which will inflate 

the plant-wide threshold, and start-up and breakdown emissions can also be added to 

the plant-wide threshold. 

Response: The existing PSD rule uses a two year look back period to determine baseline 

actual emissions, except if a source petitions to use a baseline period that is more 

representative of normal operations. The two year look back can under certain 

circumstances create disincentives to plant modernization. The existing rule encourages 

sources to either time their permit increases based on production levels, or to increase their 

emissions to increase their baseline emissions. The revised ten year baseline rule will 

remove these disincentives to postpone plant modifications. To require sources to use the 

existing two-year look back period for the calculation of the PAL limit would build-in the 

current disincentives in the PAL program. The purpose of the ten year look back period is 

to allow the source to base applicability determination on plant conditions that are 

representative of the source operations. 
DAQ-008-06 

Page 11 

Startup and shutdown and malfunction (SSM) emissions under the new rule have to be 

added to both the baseline actual (current) and projected (future) actual calculations when 

the source is using the actual to projected actual test. The source will have to justify the 

use of SSM emissions as part of the projected actual emissions test. If the pre and post 

project SSM emissions are the same than the applicability test will not be affected. If the 

post project SSM emissions are greater than the pre project startup than the test results will 

be altered in favor of the source. In all cases the source will have to justify the estimated 

values for pre and post project emissions from SSM. In the case of a modernization project 

UDAQ would anticipate that SSM emissions would decrease and would require 

justification from the source if SSM were anticipated to increase. All State and Federal 

provisions regulating SSM have to be applied to the emissions estimates. It is UDAQ’s 

position that this provision of the new rule increases the complexity for sources and DAQ 

but as long as the emissions are accurate for both the pre and post project emissions the 

PAL limit will not be inflated. 

 

22. Comments: The PAL provisions will allow modifications to avoid NSR review. 

Response: The PAL threshold value is determined by adding the EPA significance level 

per pollutant to the actual plant-wide emissions at a source. The emissions at the source 

can not be increased greater than the significance level unless that increase is offset with a 

corresponding decrease at the source. The procedure of offsetting project emissions is 

called “netting”. The procedure of “netting” is allowed on a per project basis under the 

existing rules. The PAL provision allows netting to take place under one permit and any 

change at a source can be implemented as long as the net change is not greater than the 

significance level for that pollutant. The PAL provision will not allow changes that would 

not be allowed under the existing NSR provisions. The Utah State NSR permitting rule is 

applicable to any changes at a source. Any emission increases at a source will be reviewed 

under the State rule even in cases where the change is exempt from Federal NSR major 

source review under a PAL permit. It is UDAQ’s position that the NSR Reform Rule will 

not allow modifications to avoid NSR review. 

23. Comment: We recommend that the definition of “Air Quality Related Value” be 

retained because this definition is not contained in 40 CFR 52.21. [EPA] 

Response: UDAQ did not intend to delete this definition – the intention was to 

incorporate it by reference. Because the term is not defined in 52.21, the definition will be 

included in R307-405. It was previously located in R307-101, but is more appropriately 

located in R307-405. 

24. Comment: In the definition of the term “Administrator” two cites to 52.21 paragraph 

(y) are not needed because this section “Clean Units Comparable to BACT” is not 

being incorporated by reference. [EPA, Kathy Van Dame] 

Response: UDAQ agrees and the references have been removed. 
DAQ-008-06 

Page 12 

25. Comment: Utah has proposed to substitute the definition of major source baseline 

date in 52.21(b) (14) with the definition of major source baseline date that was 

submitted with the PM10 Maintenance Plan. UDEQ revised the PM10 major source 

baseline date to the date that EPA approves the PM10 maintenance plan that was 

adopted by the Board on July 6, 2005 for Davis, Salt Lake, Utah, and Weber 

Counties. EPA has previously stated that this definition may not be approvable into 

Utah’s SIP because there is no provision in the CAA for using a different date if an 

area was in non-attainment status on January 6, 1975. If this definition is not 

revised, EPA may have to use the current SIP definitions of major source baseline 

date when acting on the SIP revision to incorporate the NSR Reform Rule. 

Response: The following response to EPA’s concerns was prepared when the PM10 SIP 

was adopted by the Board in July, 2005. “The Clean Air Act establishes requirements for 

new sources in non-attainment areas in Section 173 of the Act, and requirements for new 

sources in attainment areas (PSD) in section 165 of the Act. However, the Act does not 

specifically address the transition of areas from non-attainment into the PSD program. 

UDAQ does not believe that the statute intended for increment consumption or expansion 

to occur in an area while the area was not attaining the standard. Presumably, the majority 

of emission reductions that occurred at major sources in non-attainment areas will be 

reductions required to provide for attainment in the area. To the extent that such decreases 

are associated with a construction activity, if we require that these be counted as part of the 

increment, they would actually expand increment. This would make the increment 

analysis in these areas a hollow requirement, because the NAAQS would be exceeded well 

before the increment level was reached. UDAQ believes that it is unreasonable to interpret 

the Clean Air Act to require such a hollow requirement. A much more reasonable 

interpretation is to use the date that an area is re-designated to attainment as the new 

starting point, and then use the PSD program as part of the overall strategy to maintain the 

now ‘clean air’ in those areas.” 

26. Comment: R307-405-18 incorporate by reference 51.166(q) (1) and (2) which 

provides the general public participation requirements for a SIP approved state. 

However, some specific public participation requirements applicable to PSD sources, 

such as a minimum 30-day public comment period for PSD permits, which are in the 

proposed R307-401-7 are not specified in 40 CFR 51.166(q). Therefore, to ensure 

consistency between R307-405-18 and R307-401-7 we recommend that R307-405-18 

also reference, or add, the requirements for PSD sources specified in R307-401-7. 

Response: A source that receives a PSD permit under R307-405 is also required to 

receive an approval order under R307-401. The approval order will include all of the 

elements of the PSD permit, and will operate as the umbrella permit that includes multiple 

NSR requirements. Therefore, a PSD source will receive an approval order that has 

undergone the public comment process outlined in R307-401-7 and the additional public 

comment process in 40 CFR 51.166(q) will also apply as required by R307-405-18. 

27. Comment: The requirements in the current R307-405-7 that contains a commitment 

to develop a state plan if the increment has been violated appears to have been 

deleted. [Kathy Van Dame] 
DAQ-008-06 

Page 13 

Response: The language in the current R307-405-7 has been moved to the SIP because it 

is a commitment by the State rather than a regulatory requirement. It can be found on page 

5, section E of the PSD SIP. The State cannot regulate itself, but can make a commitment 

about what we will do if an increment is violated. Once this provision is in the federallyapproved SIP then EPA can enforce this provision against the state. If we don't meet our 

commitment, then EPA can issue a SIP call requiring us to address the deficiency in our 

SIP. 

28. Comment: In R307-405-19(b) the reference to 40 CFR 70.4(b)(3)(iii) is changed to 

R307-415-7i. The provisions do not seem to be equivalent because R307-415-7i 

applies only to certain permit actions in the operating permit program. [Clean Air 

Coalition] 

Response: After reviewing the provisions, UDAQ agrees with the commenter that R307-

415-7i is not equivalent to 70.4(b)(3)(viii). Because this reference to Part 70 is referring to 

a specific provision, rather than Utah’s operating permit program in general, it will be 

acceptable to keep the reference to Part 70 in the incorporated rule. R307-405-19(b) has 

been deleted from the draft rule. 

29. Comment: The reference to Administrator in 52.21(a)(2)(iii) should be changed to 

executive secretary. [Kathy Van Dame] 

Response: R307-405-3(2)(d)(i) changes the term “Administrator” to executive secretary 

throughout the rule, except for the instances listed in R307-405-3(2)(d)(ii). Because 

52.21(a)(2)(iii) is not on the list of exceptions, the reference has been changed to executive 

secretary. 

30. Comment: The existing language in R307-401-6 states: "The executive secretary 

shall issue an approval order if it is determined through plan review that the 

following conditions have been met," while the language proposed in the new R307-

401-8 deletes "if it is determined through plan review." Currently there is a 

document that identifies items from the engineering review that do not appear in the 

Approval Order, and even with that, it's hard to understand why decisions are made. 

I'm concerned that such documentation will not be available in the future, if DAQ 

management changes its policies. (Kathy Van Dame, Wasatch Clean Air Coalition) 

Response: The language to be deleted does not govern the kind of documentation that 

DAQ provides. In the first place, "plan review" is an undefined term, and therefore is 

meaningless; currently, DAQ uses the term "engineering review," and may in the future 

use some other process with some other name. The end result is the same, however: the 

approval order is issued only if the applicant meets all the conditions specified in the rule, 

and the only way to show that the conditions are met is to provide documentation of the 

analysis and conclusions. Second, the purpose of administrative rules is for an agency to 

regulate entities outside itself; the rulemaking process provides an open process so that 

affected parties and the public can offer input. Thus it is appropriate that the rule 
DAQ-008-06 

Page 14 

delineates the conditions that the applicant must meet before receiving an approval order, 

but it is not appropriate to include in a rule a specification of the process that DAQ uses to 

make its determinations. 

Any agency's actions are regulated by a variety of statutes and rules, including the Clean 

Air Act and federal rules, the Utah Air Conservation Act, the state Administrative 

Procedures Act, and the state statute and rules governing rulemaking. If DAQ did not 

operate with open and transparent processes, EPA would not be able to delegate the NSR 

program to Utah, as DAQ could not show that the federally-required conditions have been 

met without documenting the review. 

31. Comment: The current NSR rule has worked well for new source permitting but has 

not been as effective for permitting plant modifications. The existing rule with 

respect to modifications is difficult to understand and implement. PacifiCorp views 

the reform rule as a first step to improve the NSR program. PacifiCorp will comment 

on three areas of the reform rule: 1. PacifiCorp supports the use of the actual to 

projected actual applicability test. Under the WEPCO rule the Federal PSD program 

has allowed electric utilities to use the actual test alternative since 1992. 2. PacifiCorp 

supports the use of the 5 year look back period to determine the baseline actual 

emissions at electrical generating units under the new actual to projected actual test. 

3. PacifiCorp supports the Plant-wide Applicability Limit (PAL) program. The PAL 

program will give PacifiCorp the flexibility to implement change while installing state 

of the art emission controls. 

Mid-America's purchase of PacifiCorp includes commitments to upgrades 

throughout our system within the next 7-8 years; in Utah alone, we will see 

reductions of 60% in SO2, 34% in NOx, and 64% in mercury. The PAL program will 

help PacifiCorp to efficiently complete plant modifications while maintaining air 

quality. (Bill Lawson, PacifiCorp) 

Response: Noted. 

32. Comment: PacifiCorp finds the existing NSR rule to be difficult to understand and 

susceptible to multiple interpretations. The adoption of the reform rule is the first 

step in a process to improve the NSR program. (PacifiCorp) 

Response: Noted. 

33. Comment: The PAL program will allow sources with multiple emission units to 

establish a plant-wide emission limit for a particular emissions category rather than 

being required to manage individual emission limits at multiple units at a plant. This 

simplified approach to emission limits continues to protect the environment by 

ensuring that future emissions do not increase, while allowing operational flexibility 

at the plant. (PacifiCorp) 

Response: Noted. 
DAQ-008-06 

Page 15 

34. Comment: PacifiCorp also notes its disagreement with the comment letter dated 

October 31, 2005 and submitted to the Utah Air Quality Board on behalf of various 

organizations and individuals in opposition to the reform. The intent of the letter was 

to stop the rule making process from advancing, which PacifiCorp views as a counter 

productive approach to the reform of the NSR program. Many of the claims in the 

letter have already been addressed in the Federal and State rulemaking process to 

date. (PacifiCorp) 

Response: Noted.