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[Federal Register Volume 76, Number 99 (Monday, May 23, 2011)]
[Proposed Rules]
[Pages 29688-29695]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-12606]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-0210-0302; FRL-9309-9]

Approval and Promulgation of State Implementation Plan Revisions; 
Infrastructure Requirements for the 1997 8-Hour Ozone National Ambient 
Air Quality Standards; Utah

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed Rule.

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SUMMARY: EPA is proposing to approve and conditionally approve the 
State Implementation Plan (SIP) submissions from the State of Utah 
which demonstrate that the State meets the requirements of section 
110(a)(1) and (2) of the Clean Air Act (CAA) for the National Ambient 
Air Quality Standard (NAAQS) promulgated for ozone on July 18, 1997. 
Section 110(a) of the CAA requires that each state adopt and submit an 
``infrastructure SIP'' for the implementation, maintenance and 
enforcement of each NAAQS promulgated by the EPA. The State of Utah 
submitted two certifications of their Infrastructure SIP for the 1997 
ozone NAAQS, one dated December 3, 2007, which was determined to be 
complete on March 27, 2008 (73 FR 16205), and one dated December 21, 
2009. EPA does not propose to act on the State's March 22, 2007 
submission to meet the requirements of section 110(a)(2)(D)(i) of the 
CAA, relating to interstate transport of air pollution, for the 1997 
ozone NAAQS. EPA approved the State's interstate transport SIP 
submission on May 28, 2008 (73 FR 16543).

DATES: Written comments must be received on or before June 22, 2011.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2010-0302, by one of the following methods:
    http://www.regulations.gov. Follow the on-line 
instructions for submitting comments.
     E-mail: dolan.kathy@epa.gov Fax: (303) 312-6064 (please alert the individual listed in 
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
     Mail: Director, Air Program, Environmental Protection 
Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop Street, Denver, 
Colorado 80202-1129.
     Hand Delivery: Director, Air Program, Environmental 
Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop 
Street, Denver, Colorado 80202-1129. Such deliveries are only accepted 
Monday through Friday, 8 a.m. to 4:30 p.m., excluding federal holidays. 
Special arrangements should be made for deliveries of boxed 
information.
    Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-
2010-0302. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The

[[Page 29689]]

http://www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA, without going through http://www.regulations.gov your e-mail address will be automatically captured 
and included as part of the comment that is placed in the public docket 
and made available on the Internet. If you submit an electronic 
comment, EPA recommends that you include your name and other contact 
information in the body of your comment and with any disk or CD-ROM you 
submit. If EPA cannot read your comment due to technical difficulties 
and cannot contact you for clarification, EPA may not be able to 
consider your comment. Electronic files should avoid the use of special 
characters, any form of encryption, and be free of any defects or 
viruses. For additional information about EPA's public docket visit the 
EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. 
For additional instructions on submitting comments, go to section I, 
General Information, of the SUPPLEMENTARY INFORMATION section of this 
document.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure 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 
in 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: Kathy Dolan, Air Program, U.S. 
Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129. 303-312-6142, 
dolan.kathy@epa.gov.

SUPPLEMENTARY INFORMATION:

Definitions

    For the purpose of this document, we are giving meaning to certain 
words or initials as follows:
    (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.
    (iii) The initials SIP mean or refer to State Implementation Plan.

Table of Contents

I. General Information
II. Background
III. What infrastructure elements are required under sections 
110(a)(1) and (2)?
IV. How did the State of Utah address the infrastructure elements of 
sections 110(a)(1) and (2)?
V. What action is EPA taking?
VI. Statutory and Executive Order Reviews

I. General Information

What should I consider as I prepare my comments for EPA?

    1. Submitting Confidential Business Information (CBI). Do not 
submit CBI to EPA through http://www.regulations.gov or e-mail. Clearly 
mark the part or all of the information that you claim to be CBI. For 
CBI information on a disk or CD ROM that you mail to EPA, mark the 
outside of the disk or CD ROM as CBI and then identify electronically 
within the disk or CD ROM the specific information that is claimed as 
CBI. In addition to one complete version of the comment that includes 
information claimed as CBI, a copy of the comment that does not contain 
the information claimed as CBI must be submitted for inclusion in the 
public docket. Information so marked will not be disclosed except in 
accordance with procedures set forth in 40 CFR part 2.
    2. Tips for preparing your comments. When submitting comments, 
remember to:
    Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register, date, and page number);
    Follow directions and organize your comments;
    Explain why you agree or disagree;
    Suggest alternatives and substitute language for your requested 
changes;
    Describe any assumptions and provide any technical information and/
or data that you used;
    If you estimate potential costs or burdens, explain how you arrived 
at your estimate in sufficient detail to allow for it to be reproduced;
    Provide specific examples to illustrate your concerns, and suggest 
alternatives;
    Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats; and,
    Make sure to submit your comments by the comment period deadline 
identified.

II. Background

    On July 18, 1997, EPA promulgated new NAAQS for ozone based on 8-
hour average concentrations. The 8-hour averaging period replaced the 
previous 1-hour averaging period, and the level of the NAAQS was 
changed from 0.12 parts per million (ppm) to 0.08 ppm (62 FR 38856). By 
statute, SIPs meeting the requirements of sections 110(a)(1) and (2) 
are to be submitted by states within three years after promulgation of 
a new or revised standard. Section 110(a)(2) provides basic 
requirements for SIPs, including emissions inventories, monitoring, and 
modeling, to assure attainment and maintenance of the standards. These 
requirements are set out in several ``infrastructure elements,'' listed 
in section 110(a)(2).
    Section 110(a) imposes the obligation upon states to make a SIP 
submission to EPA for a new or revised NAAQS, and the contents of that 
submission may vary depending upon the facts and circumstances. In 
particular, the data and analytical tools available at the time the 
state develops and submits the SIP for a new or revised NAAQS affects 
the content of the submission. The contents of such SIP submissions may 
also vary depending upon what provisions the state's existing SIP 
already contains. In the case of the 1997 ozone NAAQS, states typically 
have met the basic program elements required in section 110(a)(2) 
through earlier SIP submissions in connection with previous NAAQS. In a 
guidance issued on October 2, 2007, EPA noted that, to the extent an 
existing SIP already meets the section 110(a)(2) requirements, states 
need only to certify that fact via a letter to EPA.\1\
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    \1\ Memorandum from William T. Harnett, Director, Air Quality 
Policy Division, ``Guidance on SIP Elements Required Under Sections 
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 
National Ambient Air Quality Standards'' (Oct. 2, 2007).
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    On March 27, 2008, EPA published a final rule entitled, 
``Completeness Findings for Section 110(a) State Implementation Plans 
for the 8-hour Ozone NAAQS'' (73 FR 16205). In the rule, EPA made a 
finding for each State that it had submitted or had failed to submit a 
complete SIP that provided the basic program elements of section 
110(a)(2) necessary to implement the 1997 8-hour ozone NAAQS. In 
particular, EPA found that Utah had

[[Page 29690]]

submitted a complete SIP to meet these requirements.

III. What infrastructure elements are required under sections 110(a)(1) 
and (2)?

    Section 110(a)(1) provides the procedural and timing requirements 
for SIP submissions after a new or revised NAAQS is promulgated. 
Section 110(a)(2) lists specific elements the SIP must contain or 
satisfy. These infrastructure elements include requirements, such as 
modeling, monitoring, and emissions inventories, which are designed to 
assure attainment and maintenance of the NAAQS. The elements that are 
the subject of this action are listed below.
     110(a)(2)(A): Emission limits and other control measures.
     110(a)(2)(B): Ambient air quality monitoring/data system.
     110(a)(2)(C): Program for enforcement of control measures.
     110(a)(2)(D)(ii): Interstate and international pollution.
     110(a)(2)(E): Adequate resources and authority.
     110(a)(2)(F): Stationary source monitoring and reporting.
     110(a)(2)(G): Emergency powers.
     110(a)(2)(H): Future SIP revisions.
     110(a)(2)(J): Consultation with government officials; 
public notification; and prevention of significant deterioration (PSD) 
and visibility protection.
     110(a)(2)(K): Air quality modeling/data.
     110(a)(2)(L): Permitting fees.
     110(a)(2)(M): Consultation/participation by affected local 
entities.

A detailed discussion of each of these elements is contained in the 
next section.
    Two elements identified in section 110(a)(2) are not governed by 
the three year submission deadline of section 110(a)(1) and are 
therefore not addressed in this action. These elements relate to part D 
of Title I of the CAA, and submissions to satisfy them are not due 
within three years after promulgation of a new or revised NAAQS, but 
rather are due at the same time nonattainment area plan requirements 
are due under section 172. The two elements are: (i) Section 
110(a)(2)(C) to the extent it refers to permit programs (known as 
``nonattainment new source review (NSR)'') required under part D, and 
(ii) section 110(a)(2)(I), pertaining to the nonattainment planning 
requirements of part D. As a result, this action does not address 
infrastructure elements related to the nonattainment NSR portion of 
section 110(a)(2)(C) or related to 110(a)(2)(I).
    This action also does not address the ``interstate transport'' 
requirements of element 110(a)(2)(D)(i). In a separate action, EPA 
approved the State's submission to meet the requirements of 
110(a)(2)(D)(i) for the 1997 ozone NAAQS. (73 FR 16543).

IV. How did the State of Utah address the infrastructure elements of 
sections 110(a)(1) and (2)?

    1. Emission limits and other control measures: Section 110(a)(2)(A) 
requires SIPs to include enforceable emission limitations and other 
control measures, means, or techniques (including economic incentives 
such as fees, marketable permits, and auctions of emissions rights), as 
well as schedules and timetables for compliance as may be necessary or 
appropriate to meet the applicable requirements of this Act.
    a. Utah's response to this requirement: SIP Section I (Legal 
Authority) A.1.a, codified at R307-110-2, identifies the statutory 
provisions that allow adoption of standards and limitations for 
attainment and maintenance of national standards. (19-2-104 and 109, 
Utah Code Annotated 1953 (UCA)). EPA approved this SIP originally in 
the early 1980's and most recently on June 25, 2003 (68 FR 37744).
    b. EPA analysis: Utah's SIP meets the requirements of CAA section 
110(a)(2)(A) for the 1997 ozone NAAQS, subject to the following 
clarifications. First, although Utah's certification cited its legal 
authority to adopt emissions limitations for maintenance of the NAAQS, 
the certification did not identify emissions limitations specific to 
the 1997 8-hour ozone NAAQS that the State has adopted and that have 
been approved into the SIP. EPA notes that, among other emissions 
limitations, the Utah SIP contains emissions limitations originally 
developed to attain the previous 1-hour ozone standard. For the 
purposes of this action, EPA is reviewing any rules originally 
submitted in response to part D solely for the purposes of determining 
whether they support a finding that the State has met the basic 
infrastructure requirements under section 110(a)(2).
    In this action, EPA is not proposing to approve or disapprove any 
existing state rules with regard to director's discretion or variance 
provisions. A number of states have such provisions which are contrary 
to the CAA and existing EPA guidance (52 FR 45109, Nov. 24, 1987), and 
the Agency plans to take action in the future to address such state 
regulations. In the meantime, EPA encourages any state having a 
director's discretion or variance provision which is contrary to the 
CAA and EPA guidance to take steps to correct the deficiency as soon as 
possible.
    Finally, in this action, EPA is also not proposing to approve or 
disapprove any existing state provisions with regard to excess 
emissions during startup, shutdown, or malfunction (SSM) of operations 
at a facility. A number of states have SSM provisions which are 
contrary to the CAA and existing EPA guidance \2\ and the Agency plans 
to address such state regulations in the future. In the specific case 
of SSM provisions in the Utah SIP, EPA has issued a finding of 
substantial inadequacy and call for a SIP revision for Utah's 
``unavoidable breakdown'' rule (76 FR 21639, Apr. 18, 2011). As stated 
above, though, EPA is not proposing to address SSM provisions in the 
context of this action and therefore proposes to approve the Utah 
certification for infrastructure element 110(a)(2)(A) for the 1997 
ozone NAAQS.
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    \2\ Steven Herman, Assistant Administrator for Enforcement and 
Compliance Assurance, and Robert Perciasepe, Assistant Administrator 
for Air and Radiation, Memorandum to EPA Air Division Directors, 
``State Implementation Plans (SIPs): Policy Regarding Excess 
Emissions During Malfunctions, Startup, and Shutdown.'' (Sept. 20, 
1999).
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    2. Ambient air quality monitoring/data system: Section 110(a)(2)(B) 
requires SIPs to provide for establishment and operation of appropriate 
devices, methods, systems, and procedures necessary to (i) monitor, 
compile, and analyze data on ambient air quality, and (ii) upon 
request, make such data available to the Administrator.
    a. Utah's response to this requirement: SIP Section IV (Ambient Air 
Monitoring Program), codified at R307-110-5, provides a brief 
description of the purposes of the air monitoring program. EPA approved 
this SIP originally in the early 1980's and most recently on June 25, 
2003 (68 FR 37744).
    b. EPA analysis: Utah's air monitoring programs and data systems do 
not meet the requirements of CAA section 110(a)(2)(B) for the 1997 
ozone NAAQS. In particular, deficiencies in Utah's monitoring network 
plan are detailed in a memorandum in the docket for this action. Utah 
has formally committed to submitting an adequate annual monitoring plan 
not later than one year after the date of final action on Utah's 
infrastructure SIP for the 1997 ozone NAAQS. The specific measures Utah 
will take are detailed in the commitment letter, which may be found in 
the docket for this action. EPA has reviewed these measures and agrees 
that they will rectify the deficiencies in Utah's ambient air 
monitoring network.

[[Page 29691]]

As a result of Utah's formal commitment, EPA proposes to conditionally 
approve the Utah infrastructure SIP for section 110(a)(2)(B) for the 
1997 ozone NAAQS. If, however, Utah does not implement the measures 
specified in its commitment within one year after the date of final 
action on Utah's infrastructure SIP for the 1997 ozone NAAQS, EPA's 
conditional approval will automatically revert to disapproval of the 
infrastructure SIP for section 110(a)(2)(B) for the 1997 ozone NAAQS.
    3. Program for enforcement of control measures: Section 
110(a)(2)(C) requires SIPs to include a program to provide for the 
enforcement of the measures described in subparagraph (A), and 
regulation of the modification and construction of any stationary 
source within the areas covered by the plan as necessary to assure that 
NAAQS are achieved, including a permit program as required in parts C 
and D.
    a. Utah's response to this requirement: SIP Section I (Legal 
Authority) A.1.b, identifies the statutory provisions that allow the 
Division of Air Quality (DAQ) to enforce applicable laws, regulations 
and standards and seek injunctive relief. (Sections 19-2-104 and 19-2-
115, UCA.)
    SIP Section I (Legal Authority) A.1.d, codified at R307-110-2, 
identifies the statutory provisions that allow the DAQ to prevent 
construction, modification or operation of any stationary source at any 
location where emissions from such source will prevent the attainment 
or maintenance of a national standard or interfere with PSD 
requirements. (Authority Utah Code Section 19-2-108) EPA approved this 
SIP originally in the early 1980's and most recently on June 25, 2003 
(68 FR 37744).
    SIP Section VIII (PSD), codified at R307-110-9 and R307-405, 
describes the program to prevent significant deterioration of areas of 
the State where the air is clean. EPA approved the PSD SIP originally 
in the early 1980's and most recently on June 25, 2003 (68 FR 37744). 
EPA most recently approved R307-405 on August 19, 2004 (69 FR 51368). 
Utah submitted revisions to the PSD SIP and R307-405 on September 15, 
2006. Updates to the incorporation by reference (IBR) date of 40 CFR 
52.21 were submitted on October 1, 2007 and March 3, 2008. The October 
1, 2007 update incorporated provisions in the Code of Federal 
Regulations (CFR) that added NOX as a precursor for ozone. 
The most recent update of the IBR date was adopted on February 5, 2009 
and will be submitted to EPA in the near future when the final 
administrative paperwork is available. EPA has not yet acted on these 
submittals.
    SIP Section XVII (Visibility protection), codified at R307-10-25, 
describes the program to protect visibility, especially within the 
boundaries of the five national parks located in Utah. (Sections 19-2-
101 and 104, UCA) EPA approved this SIP in April 1997 and most recently 
on June 25, 2003 (68 FR 37744).
    b. EPA analysis: To generally meet the requirements of section 
110(a)(2)(C), the State is required to have SIP-approved PSD, 
nonattainment New Source Review (NSR), and minor NSR permitting 
programs adequate to implement the 1997 8-hour ozone NAAQS. As 
explained above, in this action EPA is not evaluating nonattainment 
related provisions, such as the nonattainment NSR program required by 
part D of the Act. EPA is evaluating the State's PSD program as 
required by part C of the Act, and the State's minor NSR program as 
required by 110(a)(2)(C).
    Utah has a SIP-approved PSD program that meets the general 
requirements of part C of the Act (51 FR 31125). Below, EPA considers 
requirements for the PSD program specific to the 1997 ozone NAAQS, but 
first considers the effects of recent rules regulating greenhouse gases 
on Utah's PSD program.

Greenhouse Gas Regulation

    EPA notes a potential inconsistency between Utah's December 3, 2007 
and December 21, 2009 infrastructure SIP certifications and EPA's 
recently promulgated rule, ``Limitation of Approval of Prevention of 
Significant Deterioration Provisions Concerning Greenhouse Gas 
Emitting-Sources in State Implementation Plans'' (``PSD SIP Narrowing 
Rule''), 75 FR 82536 (Dec. 30, 2010). In the PSD SIP Narrowing Rule, 
EPA withdrew its previous approval of Utah's PSD program to the extent 
that it applied PSD permitting to greenhouse gas (GHG) emissions 
increases from GHG-emitting sources below thresholds set in EPA's June 
3, 2010 ``Prevention of Significant Deterioration and Title V 
Greenhouse Gas Tailoring Rule'' (``Tailoring Rule''), 75 FR 31514. EPA 
withdrew its approval on the basis that the State lacked sufficient 
resources to issue PSD permits to such sources at the statutory 
thresholds in effect in the previously-approved PSD program. After the 
PSD SIP Narrowing Rule, the portion of Utah's PSD SIP from which EPA 
withdrew its approval had the status of having been submitted to EPA 
but not yet acted upon. In its December 3, 2007 and December 21, 2009 
certifications, Utah relied on its PSD program as approved at that 
date--which was before December 30, 2010, the effective date of the PSD 
SIP Narrowing Rule--to satisfy the requirements of infrastructure 
element 110(a)(2)(C). Given EPA's basis for the PSD SIP Narrowing Rule, 
EPA proposes approval of the Utah infrastructure SIP for infrastructure 
element (C) if either the State clarifies (or modifies) its 
certification to make clear that the State relies only on the portion 
of the PSD program that remains approved after the PSD SIP Narrowing 
Rule issued on December 30, 2010, and for which the State has 
sufficient resources to implement, or the State acts to withdraw from 
EPA consideration the remaining portion of its PSD program submission 
that would have applied PSD permitting to GHG sources below the 
Tailoring Rule thresholds. In the alternative, if Utah does not take 
either action, EPA proposes to disapprove the infrastructure SIP to the 
extent it incorporates that portion of the previously-approved PSD 
program from which EPA withdrew its approval in the PSD SIP Narrowing 
Rule, which is the portion which would have applied PSD permitting 
requirements to GHG emissions increases from GHG-emitting sources below 
the Tailoring Rule thresholds. Such disapproval, if finalized, would 
not result in a need for Utah to resubmit a SIP revision, sanctions, or 
a federal implementation plan (FIP).

Regulation of Ozone Precursors

    In order for the State's SIP-approved PSD program to satisfy the 
requirements of section 110(a)(2)(C) for the 1997 ozone NAAQS, the 
program must properly regulate ozone precursors. On November 29, 2005, 
EPA promulgated the phase 2 implementation rule for the 1997 ozone 
NAAQS (Phase 2 Rule), which includes requirements for PSD programs to 
treat nitrogen oxides (NOX) as a precursor for ozone (72 FR 
71612). The Phase 2 Rule accordingly updated the federal program at 40 
CFR 52.21 to meet these requirements, effective January 30, 2006. On 
August 7, 2008, Utah submitted to EPA revisions to the State's PSD 
program. The State's PSD program, as submitted, for the most part 
incorporates by reference the federal program at 40 CFR 52.21. The 
August 7, 2008 submittal updates the date of incorporation by reference 
to July 1, 2007, after the effective date of the Phase 2 Rule, and 
thereby implementing the requirements of the rule. On January 7, 2009, 
EPA proposed approval of the August 7, 2008 submittal (74 FR 667). We 
anticipate finalizing that approval in conjunction with finalizing 
approval of

[[Page 29692]]

Utah's infrastructure SIP. Contingent on that approval, Utah's PSD 
program meets the requirements of section 110(a)(2)(C) for the 1997 
ozone NAAQS.

Minor NSR

    The State has a SIP-approved minor NSR program, adopted under 
section 110(a)(2)(C) of the Act that regulates emissions of ozone and 
its precursors. The minor NSR program is found in section II of the 
Utah SIP, and was originally approved by EPA as section 2 of the SIP 
(See 68 FR 37744, June 25, 2003). Since approval of the minor NSR 
program, the State and EPA have relied on the program to assure that 
new and modified sources not captured by the major NSR permitting 
programs do not interfere with attainment and maintenance of the NAAQS.
    In this action, EPA is proposing to approve Utah's infrastructure 
SIP for the 1997 ozone NAAQS with respect to the general requirement in 
section 110(a)(2)(C) to include a program in the SIP that regulates the 
modification and construction of any stationary source as necessary to 
assure that the NAAQS are achieved. EPA is not proposing to approve or 
disapprove the State's existing minor NSR program itself to the extent 
that it is inconsistent with EPA's regulations governing this program. 
A number of states may have minor NSR provisions that are contrary to 
the existing EPA regulations for this program. EPA intends to work with 
states to reconcile state minor NSR programs with EPA's regulatory 
provisions for the program. The statutory requirements of section 
110(a)(2)(C) provide for considerable flexibility in designing minor 
NSR programs, and it may be time to revisit the regulatory requirements 
for this program to give the states an appropriate level of flexibility 
to design a program that meets their particular air quality concerns, 
while assuring reasonable consistency across the country in protecting 
the NAAQS with respect to new and modified minor sources.

Visibility Protection

    Finally, Utah cited SIP provisions relating to visibility 
protection. With regards to part C of title I of the Act, section 
110(a)(2)(C) of the Act (unlike section 110(a)(2)(J)) refers only to 
the required PSD permit program, and not to visibility protection. 
Moreover, as explained below under infrastructure element (J), EPA 
finds that no new visibility obligation is ``triggered'' under section 
110(a)(2)(J) when a new NAAQS becomes effective. EPA is therefore not 
assessing in this action the visibility protection provisions cited by 
Utah.
    4. Interstate transport: Section 110(a)(2)(D)(i) requires SIPs to 
contain adequate provisions prohibiting, consistent with the provisions 
of this title, any source or other type of emissions activity within 
the state from emitting any air pollutant in amounts which will (I) 
contribute significantly to nonattainment in, or interfere with 
maintenance by, any other state, with respect to any such national 
primary or secondary ambient air quality standard, or (II) interfere 
with measures required to be included in the applicable implementation 
plan for any other state under part C to prevent significant 
deterioration of air quality or to protect visibility.
    a. Utah's response to this requirement: SIP Section XXIII 
(Interstate Transport), codified at R307-110-36, was written to satisfy 
the requirements of section 110(a)(2)(D)(i) of the CAA for the 1997 
NAAQS for 8-hour ozone. This SIP was approved by EPA on March 28, 2008 
at 73 FR 16543.
    b. EPA Analysis: EPA approved the State's Interstate Transport 
provisions for the 1997 ozone NAAQS on March 28, 2008 (73 FR 16543). 
EPA is taking no action relevant to section 110(a)(2)(D)(i) in this 
proposal.
    5. Interstate and International transport provisions: Section 
110(a)(2)(D)(ii) requires that each SIP shall contain adequate 
provisions insuring compliance with applicable requirements of sections 
126 and 115 (relating to interstate and international pollution 
abatement).
    a. Utah's response to this requirement: Utah did not cite any 
specific provisions for this requirement.
    b. EPA Analysis: Section 126(a) requires notification to affected, 
nearby states of major proposed new (or modified) sources. Sections 
126(b) and (c) pertain to petitions by affected states to the 
Administrator regarding sources violating the ``interstate transport'' 
provisions of section 110(a)(2)(D)(i). Section 115 similarly pertains 
to international transport of air pollution.
    Utah's rules for PSD permits IBR the public participation 
requirements at 40 CFR 51.166(q)(2). (See UAC R307-405-18). In 
particular, the rule incorporates 40 CFR 51.166(q)(2)(iii), which 
requires notice to states whose lands may be affected by the emissions 
of sources subject to PSD. This rule was submitted to EPA and proposed 
for approval in the action discussed in section IV.3 above (74 FR 667, 
Jan. 7, 2009). Contingent on approval of this rule, the Utah SIP 
satisfies the requirements of section 126(a).
    Utah has no pending obligations under sections 126(c) or 115(b), 
therefore, Utah's SIP currently meets the requirements of those 
sections. The SIP therefore meets the requirements of 110(a)(2)(D)(ii) 
for the 1997 ozone NAAQS.
    6. Adequate resources: Section 110(a)(2)(E) requires states to 
provide (i) Necessary assurances that the state will have adequate 
personnel, funding, and authority under state law to carry out the SIP 
(and is not prohibited by any provision of federal or state law from 
carrying out the SIP or portion thereof), (ii) requires that the state 
comply with the requirements respecting state boards under section 128, 
and (iii) necessary assurances that, where the state has relied on a 
local or regional government, agency, or instrumentality for the 
implementation of any SIP provision, the state has responsibility for 
ensuring adequate implementation of such SIP provision.
    a. Utah's response to this requirement: SIP Section V (Resources), 
codified at R307-110-6, commits to implement program activities in 
relation to resources provided by the annual State/EPA Agreement and 
105 grant applications. EPA approved this SIP originally in the early 
1980's and most recently on June 25, 2003 (68 FR 37744).
    SIP Section I (Legal Authority) A.1.g, codified at R307-110-2, 
identifies the statutory provisions that implement the provisions of 
the CAA (Section 128) respecting State Boards (Section 9-2-104 UCA.) 
EPA approved this SIP originally in the early 1980's and most recently 
on June 25, 2003 (68 FR 37744).
    Section 41-6a-1642 UCA provides the counties the authority to run 
their own emissions inspection and maintenance program, and Subsection 
41-6a-1642 (2)(b)(i) UCA requires that the counties' emissions 
inspection and maintenance program ``shall be made to attain or 
maintain ambient air quality standards in the county, consistent with 
the SIP and federal requirements.'' Section X of the SIP, codified at 
sections R307-110-31 to -35, outlines the specific requirements of the 
automotive inspection and maintenance program. EPA approved this SIP 
section in action on July 17, 1997 (62 FR 38213), August 1, 2005 (70 FR 
44055), September 14, 2005 (70 FR 54267), and November 2, 2005 (70 FR 
66264).
    b. EPA Analysis: Chapter 2 of Title 19 of the Utah Code gives the 
DAQ and Air Quality Board (AQB) adequate authority to carry out the 
SIP. UCA 19-2-103 requires the AQB be composed and act in accordance 
with section 128 of the CAA. The State receives sections 103 and 105 
grant funds through its

[[Page 29693]]

Performance Partnership Grant along with required State matching funds 
to provide funding necessary to carry out Utah's SIP requirements. 
Utah's SIP meets the requirements of CAA section 110(a)(2)(E) for the 
1997 ozone NAAQS.
    7. Stationary source monitoring system: Section 110(a)(2)(F) 
requires (i) the installation, maintenance, and replacement of 
equipment, and the implementation of other necessary steps, by owners 
or operators of stationary sources to monitor emissions from such 
sources, (ii) periodic reports on the nature and amounts of emissions 
and emissions-related data from such sources, and (iii) correlation of 
such reports by the state agency with any emission limitations or 
standards established pursuant to the Act, which reports shall be 
available at reasonable times for public inspection.
    a. Utah's response to this requirement: SIP Section I (Legal 
Authority) A.1.f, codified at R307-110-2, identifies the statutory 
provisions that require owners or operators of stationary sources to 
install, maintain, and use emission monitoring devices and to make 
periodic reports to the State Department of Environmental Quality (DEQ) 
on the nature and amounts of emissions from such sources. The State DEQ 
will make such data available to the public as reported and as 
correlated with any applicable emission standards or limitations 
(Section 19-2-104, UCA). EPA approved this SIP originally in the early 
1980's and most recently on June 25, 2003 (68 FR 37744).
    SIP Section III (Source Surveillance), codified at R307-110-4, 
includes inventory requirements, stack testing, and plant inspections 
(Sections 19-2-107 and 19-2-108, UCA, allow inspection of air pollution 
sources). EPA approved this SIP section originally in the early 1980's 
and most recently on June 25, 2003 (68 FR 37744).
    b. EPA Analysis: Utah's SIP meets the requirements of section 
110(a)(2)(F) for the 1997 ozone NAAQS.
    8. Emergency powers: Section 110(a)(2)(G) requires states to 
provide for authority to address activities causing imminent and 
substantial endangerment to public health, including contingency plans 
to implement the emergency episode provisions in their SIPs.
    a. Utah's response to this requirement: SIP Section 1 (Legal 
Authority) A.1.c, codified at R307-110-2, identifies the statutory 
provisions to abate pollutant emissions on an emergency basis to 
prevent substantial endangerment to the health of persons (Section 19-
2-112, UCA). EPA approved this SIP originally in the early 1980's and 
most recently on June 25, 2003 (68 FR 37744).
    More details can be found in SIP Section VII (Prevention of Air 
Pollution Emergency Episodes), codified at R307-110-8 (Section 19-2-
112, UCA). EPA approved this SIP originally in the early 1980's and 
most recently on June 25, 2003 (68 FR 37744).
    b. EPA analysis: Section 19-2-112 of the UCA provides DEQ with 
general emergency authority comparable to that in section 303 of the 
Act. The SIP also requires DEQ to follow criteria in 40 CFR 51.151 in 
proclaiming an emergency episode and to develop a contingency plan. The 
SIP meets the requirements of 110(a)(2)(G) for the 1997 ozone NAAQS.
    9. Future SIP revisions: Section 110(a)(2)(H) requires that SIPs 
provide for revision of such plan (i) from time to time as may be 
necessary to take account of revisions of such national primary or 
secondary ambient air quality standard or the availability of improved 
or more expeditious methods of attaining such standard, and (ii), 
except as provided in paragraph (3)(C), whenever the Administrator 
finds on the basis of information available to the Administrator that 
the SIP is substantially inadequate to attain the NAAQS which it 
implements or to otherwise comply with any additional requirements 
under this Act.
    a. Utah's response to this requirement: SIP Section I (Legal 
Authority) A.1.a, codified at R307-110-2, identifies the statutory 
provisions that allow the DAQ to revise its plans to take account of 
revisions of a NAAQS and to adopt expeditious methods of attaining and 
maintaining such standard. EPA approved this SIP originally in the 
early 1980's and most recently on June 25, 2003 (68 FR 37744).
    b. EPA analysis: Section 19-2-104 of the UCA gives the AQB 
sufficient authority to meet the requirements of 110(a)(2)(H).
    10. Nonattainment Area Plan or Plan Revision under Part D: Section 
110(a)(2)(I) requires that a SIP or SIP revision for an area designated 
as a nonattainment area must meet the applicable requirements of part D 
of this subchapter (relating to nonattainment areas).
    a. EPA analysis for section 110(a)(2)(I): As noted above, the 
specific nonattainment area plan requirements of section 110(a)(2)(I) 
are subject to the timing requirement of section 172, not the timing 
requirement of section 110(a)(1). This element is therefore not 
applicable to this action. EPA will take action on part D attainment 
plans through a separate process.
    11. Consultation with government officials, public notification, 
PSD and visibility protection: Section 110(a)(2)(J) requires that each 
SIP meet the applicable requirements of section 121 of this title 
(relating to consultation), section 127 of this title (relating to 
public notification), and part C of this subchapter (relating to PSD of 
air quality and visibility protection).
    a. Utah's response to this requirement: SIP Section I (Legal 
Authority) A.2, codified at R307-110-2, adopts requirements for 
transportation consultation (Section 174, Clean Air Act). EPA approved 
this SIP originally in the early 1980's and most recently on June 25, 
2003 (68 FR 37744).
    SIP Section I (Legal Authority) A.1.d, codified at R307-110-2, 
identifies the statutory authority to prevent construction, 
modification or operation of any stationary source at any location 
where emissions from such source will prevent the attainment or 
maintenance of a national standard or interfere with PSD requirements. 
(UCA Section 19-2-108) EPA approved this SIP originally in the early 
1980's and most recently on June 25, 2003 (68 FR 37744).
    SIP Section VI (Intergovernmental Cooperation), provides a brief 
listing of federal, state, and local agencies involved in protecting 
air quality in Utah. Codified at R307-110-7/EPA approved this SIP 
originally in the early 1980's and most recently on June 25, 2003 at 68 
FR 37744.
    SIP Section XII (Transportation Conformity Consultation), codified 
at R307-110-20, establishes the consultation procedures on 
transportation conformity issues when preparing State plans. EPA 
approved SIP Section XII, Transportation Conformity Consultation, on 
September 2, 2008 (73 FR 51222).
    SIP Section VIII (PSD), codified at R307-110-9 and R307-405, 
describes the program to prevent significant deterioration of areas of 
the State where the air is clean. EPA approved the PSD SIP originally 
in the early 1980's and most recently on June 25, 2003 (68 FR 37744). 
EPA most recently approved R307-405 on August 18, 2004 (69 FR 51368). 
Utah submitted revisions to the PSD SIP and R307-405 on September 15, 
2006. Updates to the IBR date of 40 CFR 52.21 were submitted on October 
1, 2007 and March 3, 2008. The October 1, 2007 update incorporates 
provisions in the CFR that added NOX as a precursor for 
ozone. The most recent update of the IBR date was adopted on February 
5, 2009 and will be submitted to EPA in the near future when the final 
administrative paperwork is available.

[[Page 29694]]

EPA has not yet acted on these submittals.
    SIP Section XVI (Public Notification), codified at R307-110-24, 
includes provisions to notify the public when NAAQS have been exceeded 
as per section 127 of the CAA. EPA approved this SIP originally in the 
early 1980's and most recently on June 25, 2003 (68 FR 37744).
    SIP Section XVII (Visibility Protection), codified at R307-110-25, 
describes the program to protect visibility, especially within the 
boundaries of the five national parks located in Utah. (Sections 19-2-
101 and 104, UCA) EPA approved this SIP in April 1997 and most recently 
on June 25, 2003 (68 FR 37744).
    SIP Section XX (Regional Haze), codified at R307-110-28, addresses 
the requirements in part C of the CAA relating to regional haze. The 
SIP was based on the recommendations of the Grand Canyon Visibility 
Transport Commission established by section 169B(f) of the CAA. 
(Sections 19-2-104, UCA). The Regional Haze SIP was submitted to EPA on 
December 12, 2003. Revisions to the Regional Haze SIP were submitted on 
August 8, 2004; May 8, 2006; and September 9, 2008. EPA has not yet 
acted on these submittals.
    b. EPA Analysis: The State has demonstrated that it has the 
authority and rules in place to provide a process of consultation with 
general purpose local governments, designated organizations of elected 
officials of local governments and any Federal Land Manager having 
authority over federal land to which the SIP applies, consistent with 
the requirements of CAA section 121. Furthermore, SIP section XVI, 
cited by Utah, satisfies the requirements of section 127 of the Act.
    The State has a SIP-approved PSD program that incorporates by 
reference the federal program at 40 CFR 52.21. The federal program (and 
therefore Utah's SIP-approved PSD program) automatically implements new 
PSD requirements triggered by the effective date of any new NAAQS. EPA 
has further evaluated Utah's SIP-approved PSD program in this proposed 
action under IV.3 of section 110(a)(2)(C).
    Finally, with regard to the applicable requirements for visibility 
protection, EPA recognizes that states are subject to visibility and 
regional haze program requirements under part C of the act. In the 
event of the establishment of a new NAAQS, however, the visibility and 
regional haze program requirements under part C do not change. Thus we 
find that there is no new visibility obligation ``triggered'' under 
section 110(a)(2)(J) when a new NAAQS becomes effective. In conclusion, 
the Utah SIP meets the requirements of section 110(a)(2)(J) for the 
1997 ozone NAAQS.
    12. Air quality and modeling/data: Section 110(a)(2)(K) requires 
that each SIP provide for (i) the performance of such air quality 
modeling as the Administrator may prescribe for the purpose of 
predicting the effect on ambient air quality of any emissions of any 
air pollutant for which the Administrator has established a NAAQS, and 
(ii) the submission, upon request, of data related to such air quality 
modeling to the Administrator.
    a. Utah's response to this requirement: SIP Section II (Review of 
New and Modified Air Pollution Sources), codified at R307-110-3, 
provides that new or modified sources of air pollution must submit 
plans to the DAQ and receive an Approval Order before operating. 
(Section 19-2-104, UCA) EPA approved this SIP originally in the early 
1980's and most recently on June 25, 2003 (68 FR 37744).
    b. EPA Analysis: Utah's SIP meets the requirements of CAA section 
110(a)(2)(K) for the 1997 ozone NAAQS. In particular, Utah's PSD 
program incorporates by reference the federal program at 40 CFR 52.21, 
including the provision at 52.21(l)(1) requiring that estimates of 
ambient air concentrations be based on applicable air quality models 
specified in Appendix W of 40 CFR part 51, and the provision at 
52.21(l)(2) requiring that modification or substitution of a model 
specified in Appendix W must be approved by the Administrator. As a 
result, the SIP provides for such air quality modeling as the 
Administrator has prescribed.
    13. Permitting fees: Section 110(a)(2)(L) requires SIPs to require 
the owner or operator of each major stationary source to pay to the 
permitting authority, as a condition of any permit required under this 
act, a fee sufficient to cover (i) the reasonable costs of reviewing 
and acting upon any application for such a permit, and (ii) if the 
owner or operator receives a permit for such source, the reasonable 
costs of implementing and enforcing the terms and conditions of any 
such permit (not including any court costs or other costs associated 
with any enforcement action), until such fee requirement is superseded 
with respect to such sources by the Administrator's approval of a fee 
program under title V.
    a. Utah's response to this requirement: SIP Section I (Legal 
Authority) A.1.h, codified at R307-110-2, identifies the statutory 
authority to charge a fee to major sources to cover permit and 
enforcement expenses. EPA approved this SIP originally in the early 
1980s and most recently on June 25, 2003 (68 FR 37744).
    b. EPA Analysis: Utah's approved title V operating permit program 
meets the requirements of CAA section 110(a)(2)(L) for the 1997 ozone 
NAAQS. Final approval of the title V operating permit program was 
approved on June 8, 1995 (60 FR 30192). As discussed in the notice 
proposing approval of the title V program (60 FR 15105, Mar. 22, 1995), 
the State demonstrated that the fees collected were sufficient to 
administer the program.
    14. Consultation/participation by affected local entities: Section 
110(a)(2)(M) requires states to provide for consultation and 
participation in SIP development by local political subdivisions 
affected by the SIP.
    a. Utah's response to this requirement: SIP Section VI 
(Intergovernmental Cooperation), codified at R307-110-7, lists federal, 
state, and local agencies involved in protecting air quality in Utah. 
EPA approved this SIP originally in the early 1980's and most recently 
on June 25, 2003 (68 FR 37744).
    SIP Section XII (Transportation Conformity Consultation), codified 
at R307-110-20, establishes the consultation procedures on 
transportation conformity issues when preparing state plans. EPA 
approved SIP Section XII, Transportation Conformity Consultation, on 
September 2 2008 (73 FR 51222).
    b. EPA Analysis: Utah's submittal meets the requirements of CAA 
section 110(a)(2)(M) for the 1997 ozone NAAQS.

V. What action is EPA taking?

    In this action, EPA is proposing to approve the following 
infrastructure elements for the 1997 ozone NAAQS: (A), (D)(ii), (E), 
(F), (G), (H), (J), (K), (L), and (M). EPA proposes to approve the 
section 110(a)(2)(C) infrastructure element in full for the 1997 ozone 
NAAQS in the event that Utah takes one of the actions described in the 
discussion of that element; in the alternative, EPA proposes to 
disapprove the section 110(a)(2)(C) element to the extent described and 
to otherwise approve this element. EPA proposes to conditionally 
approve the section 110(a)(2)(B) infrastructure element for the 1997 
ozone NAAQS based on the formal commitment by Utah described in the 
discussion of that element. Finally, in this action, EPA is taking no 
action on infrastructure elements (D)(i) and (I) for the 1997 ozone 
NAAQS.

[[Page 29695]]

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations (42 U.S.C. 7410(k), 40 CFR 52.02(a)). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
proposed action merely approves some state law as meeting federal 
requirements and disapproves other state law because it does not meet 
federal requirements; this proposed action does not impose additional 
requirements beyond those imposed by state law. For that reason, this 
proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999); is not an 
economically significant regulatory action based on health or safety 
risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and,
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

    In addition, this rule does not have Tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the State, and EPA notes that it will not impose substantial direct 
costs on Tribal governments or preempt Tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

    Dated: May 16, 2011.
James B. Martin,
Regional Administrator, Region 8.
[FR Doc. 2011-12606 Filed 5-20-11; 8:45 am]
BILLING CODE 6560-50-P
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