43898 Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Rules and Regulations 

■ 2. Add 165.T09–0573 to read as 

follows: 

§ 165.T09–0573 Safety zone; Kathleen 

Whelan Wedding Fireworks, Lake St. Clair, 

Grosse Pointe Farms, MI. 

(a) Location. The safety zone will 

encompass all U. S. navigable waters on 

Lake St. Clair within a 600 foot radius 

of position 42°23′5′′ N, 082°53′37′′ W, 

location off shore of Grosse Pointe 

Farms, MI. All geographic coordinates 

are North American Datum of 1983 

(NAD 83). 

(b) Effective and Enforcement Period. 

This rule is effective and will be 

enforced from 9:30 p.m. through 10 p.m. 

on July 23, 2011. 

(c) Regulations. 

(1) In accordance with the general 

regulations in § 165.23 of this part, entry 

into, transiting, or anchoring within this 

safety zone is prohibited unless 

authorized by the Captain of the Port 

Detroit, or his designated on-scene 

representative. 

(2) This safety zone is closed to all 

vessel traffic, except as may be 

permitted by the Captain of the Port 

Detroit or his designated on-scene 

representative. 

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

the Captain of the Port is any Coast 

Guard commissioned, warrant, or petty 

officer who has been designated by the 

Captain of the Port to act on his behalf. 

The on-scene representative of the 

Captain of the Port will be aboard either 

a Coast Guard or Coast Guard Auxiliary 

vessel. The Captain of the Port or his 

designated on scene representative may 

be contacted via VHF Channel 16. 

(4) Vessel operators desiring to enter 

or operate within the safety zone shall 

contact the Captain of the Port Detroit 

or his on-scene representative to obtain 

permission to do so. 

(5) Vessel operators given permission 

to enter or operate in the safety zone 

must comply with all directions given to 

them by the Captain of the Port or his 

on-scene representative. 

Dated: July 12, 2011. 

J.E. Ogden, 

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

Port Detroit. 

[FR Doc. 2011–18595 Filed 7–21–11; 8:45 am] 

BILLING CODE 9110–04–P 

POSTAL SERVICE 

39 CFR Part 241 

Post Office Organization and 

Administration: Establishment, 

Classification, and Discontinuance; 

Correction 

AGENCY: Postal Service. 

ACTION: Final rule; correction. 

SUMMARY: On July 14, 2011, the Postal 

Service published an amendment to the 

rules concerning the establishment, 

classification, and discontinuance of 

post offices. That rule contained certain 

incorrect internal cross-references, 

which are corrected by this further 

rulemaking. 

DATES: Effective Date: July 22, 2011. 

FOR FURTHER INFORMATION CONTACT: Jim 

Boldt, (202) 268–6799. 

SUPPLEMENTARY INFORMATION: The Postal 

Service published a final rule in the 

Federal Register on July 14, 2011 (76 FR 

41413), amending the retail facility 

discontinuance regulations in 39 CFR 

part 241. In sections I.H (Notice to 

Customers Served by Suspended 

Facility) (76 FR 41416), I.K (Emergency 

Suspensions) (76 FR 41417), and I.O 

(Procedural Recommendations) (76 FR 

41418) of the SUPPLEMENTARY

INFORMATION in the preamble, the Postal 

Service erroneously cited 39 CFR 

241.3(a)(4)(iii), which should have 

referred, in sections I.H and I.K, to 

subparagraph 241.3(a)(5)(iv) and, in 

section I.O, to subparagraph 

241.3(a)(5)(iii). 

In addition, subparagraph 

241.3(a)(5)(iv) of the regulations 

contained in the final rule (76 FR 

41421–22) contained erroneous crossreferences to clause 241.3(a)(4)(i)(B) and 

subparagraph 241.3(a)(4)(iii), which 

should have referred to the respective 

provisions of paragraph 241.3(a)(5) 

instead. This final rule corrects the 

errors in 39 CFR 241.3(a)(5)(iv). 

The Postal Service hereby adopts the 

following changes to 39 CFR part 241. 

List of Subjects in 39 CFR Part 241 

Organization and functions 

(government agencies), Postal Service. 

Accordingly, 39 CFR part 241 is 

amended as follows: 

PART 241—RETAIL ORGANIZATION 

AND ADMINISTRATION: 

ESTABLISHMENT, CLASSIFICATION, 

AND DISCONTINUANCE 

■ 1. The authority citation for 39 CFR 

part 241 continues to read as follows: 

Authority: 39 U.S.C. 101, 401, 403, 404, 

410, 1001. 

§ 241.3 [Corrected] 

■ 2. In 39 CFR 241.3: 

■ a. In the first sentence of paragraph 

(a)(5)(iv), remove ‘‘241.3(a)(4)(i)(B)’’ and 

add ‘‘241.3(a)(5)(i)(B)’’ in its place. 

■ b. In the third sentence of paragraph 

(a)(5)(iv), remove ‘‘241.3(a)(4)(iii)’’ and 

add ‘‘241.3(a)(5)(iii)’’ in its place. 

Stanley F. Mires, 

Chief Counsel, Legislative. 

[FR Doc. 2011–18481 Filed 7–21–11; 8:45 am] 

BILLING CODE 7710–12–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2010–0302; FRL–9442–2] 

Approval and Promulgation of State 

Implementation Plan Revisions; 

Infrastructure Requirements for the 

1997 8-Hour Ozone National Ambient 

Air Quality Standard; Utah 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving and 

conditionally approving the State 

Implementation Plan (SIP) submission 

from the State of Utah to demonstrate 

that the SIP meets the requirements of 

sections 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)(1) of the CAA requires 

that each state, after a new or revised 

NAAQS is promulgated, review their 

SIPs to ensure that they meet the 

requirements of the ‘‘infrastructure 

elements’’ of section 110(a)(2). The State 

of Utah submitted two certifications, 

dated December 3, 2007, and December 

21, 2009, that its SIP met these 

requirements for the 1997 ozone 

NAAQS. The December 3, 2007 

certification was determined to be 

complete on March 27, 2008 (73 FR 

16205). 

DATES: Effective Date: This final rule is 

effective August 22, 2011. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R08–OAR–2010–0302. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

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


emcdonald on DSK2BSOYB1PROD with RULES
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Rules and Regulations 43899 

1Memorandum 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). 

2See the NPR (76 FR 29688) for further 

explanation regarding the omission of elements 

110(a)(2)(D)(i) and 110(a)(2)(I) from the proposal. 

3The specific measures Utah will take are 

detailed in the commitment letter, which may be 

found in the docket for this action. 

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. Background 

II. Response to Comments 

III. Final Action 

IV. Statutory and Executive Order Reviews 

I. 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 

a state develops and submits its 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 a 

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

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 

submitted a complete SIP 

(‘‘Infrastructure SIP’’) to meet these 

requirements. 

On May 23, 2011, EPA published a 

notice of proposed rulemaking (NPR) for 

the State of Utah (76 FR 29688) to act 

on the State’s Infrastructure SIP for the 

1997 ozone NAAQS. Specifically, in the 

NPR EPA proposed approval of Utah’s 

SIP as meeting the requirements of all 

section 110(a)(2) elements with respect 

to the 1997 ozone NAAQS, aside from 

elements 110(a)(2)(D)(i), 110(a)(2)(I), 

and the visibility protection 

requirement of element 110(a)(2)(J), on 

which EPA did not propose action.2

In the May 23, 2011 NPR, EPA 

proposed to conditionally approve 

element 110(a)(2)(B) for the 1997 ozone 

NAAQS. EPA had discovered certain 

deficiencies in Utah’s monitoring 

network plan and Utah formally 

committed to submitting an adequate 

annual monitoring plan not later than 

one year after the date of this final 

action to correct those deficiencies.3 In 

the NPR, EPA also stated that if Utah 

does not implement the measures 

specified in its commitment within one 

year after the date of this final action, 

EPA’s conditional approval will 

automatically revert to disapproval of 

the infrastructure SIP for section 

110(a)(2)(B) for the 1997 ozone NAAQS. 

EPA proposed to approve element 

110(a)(2)(C) for the 1997 ozone NAAQS 

in the event that the State clarified (or 

modified) its December 3, 2007 and 

December 21, 2009 certifications to 

ensure consistency with two rules 

related to regulation of greenhouse gas 

(GHG) emissions: ‘‘Prevention of 

Significant Deterioration and Title V 

Greenhouse Gas Tailoring Rule’’ 

(‘‘Tailoring Rule’’), 75 FR 31514 (June 3, 

2010), and ‘‘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 prevention of 

significant deterioration (PSD) program 

to the extent that it applied PSD 

permitting to GHG emissions increases 

from GHG-emitting sources below 

thresholds set in the Tailoring Rule. 

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 proposed 

approval of the Utah Infrastructure SIP 

for infrastructure element (C) if either 

the State clarified (or modified) 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 acted 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. On June 

22, 2011, EPA received a letter from 

Utah clarifying that the State relies only 

on the portion of the PSD program that 

remains approved after the PSD SIP 


emcdonald on DSK2BSOYB1PROD with RULES
43900 Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Rules and Regulations 

4Utah’s June 22, 2011 clarification letter is 

available in the docket for this action. 

5See, Comments of Midwest Environmental 

Defense Center, dated May 31, 2011. Docket # EPA– 

R05–OAR–2007–1179 (adverse comments on 

proposals for three states in Region 5). EPA notes 

that these public comments on another proposal are 

not relevant to this rulemaking and do not have to 

be directly addressed in this rulemaking. EPA will 

respond to these comments in the appropriate 

rulemaking action to which they apply. 

Narrowing Rule issued on December 30, 

2010.4

EPA’s proposed approval of elements 

110(a)(2)(C) and (J) for the 1997 ozone 

NAAQS was also contingent on the final 

approval of the State’s August 7, 2008 

submittal. 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 of the State’s 

PSD program to July 7, 2007, therefore 

incorporating EPA’s 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, November 29, 

2005). EPA proposed approval of the 

August 7, 2008 submittal on January 7, 

2009 (74 FR 667), and finalized 

approval on June 29, 2011. EPA 

therefore approves in full elements 

110(a)(2)(C) and (J) with this action. 

Scope of Infrastructure SIPs 

EPA is currently acting upon SIPs that 

address the infrastructure requirements 

of CAA section 110(a)(1) and (2) for 

ozone and PM2.5 NAAQS for various 

states across the country. Commenters 

on EPA’s recent proposals for some 

states raised concerns about EPA 

statements that it was not addressing 

certain substantive issues in the context 

of acting on the infrastructure SIP 

submissions.5 The commenters 

specifically raised concerns involving 

provisions in existing SIPs and with 

EPA’s statements that it would address 

two issues separately and not as part of 

actions on the infrastructure SIP 

submissions: (i) Existing provisions 

related to excess emissions during 

periods of start-up, shutdown, or 

malfunction at sources, that may be 

contrary to the CAA and EPA’s policies 

addressing such excess emissions 

(‘‘SSM’’); and (ii) existing provisions 

related to ‘‘director’s variance’’ or 

‘‘director’s discretion’’ that purport to 

permit revisions to SIP approved 

emissions limits with limited public 

process or without requiring further 

approval by EPA, that may be contrary 

to the CAA (‘‘director’s discretion’’). 

EPA notes that there are two other 

substantive issues for which EPA 

likewise stated that it would address the 

issues separately: (i) Existing provisions 

for minor source new source review 

programs that may be inconsistent with 

the requirements of the CAA and EPA’s 

regulations that pertain to such 

programs (‘‘minor source new source 

review (NSR)’’); and (ii) existing 

provisions for Prevention of Significant 

Deterioration programs that may be 

inconsistent with current requirements 

of EPA’s ‘‘Final NSR Improvement 

Rule,’’ 67 FR 80,186 (December 31, 

2002), as amended by 72 FR 32,526 

(June 13, 2007) (‘‘NSR Reform’’). In light 

of the comments, EPA now believes that 

its statements in various proposed 

actions on infrastructure SIPs with 

respect to these four individual issues 

should be explained in greater depth 

with respect to these issues. 

EPA intended the statements in the 

proposals concerning these four issues 

merely to be informational, and to 

provide general notice of the potential 

existence of provisions within the 

existing SIPs of some states that might 

require future corrective action. EPA did 

not want states, regulated entities, or 

members of the public to be under the 

misconception that the Agency’s 

approval of the infrastructure SIP 

submission of a given state should be 

interpreted as a reapproval of certain 

types of provisions that might exist 

buried in the larger existing SIP for such 

state. Thus, for example, EPA explicitly 

noted that the Agency believes that 

some states may have existing SIP 

approved SSM provisions that are 

contrary to the CAA and EPA policy, 

but that ‘‘in this rulemaking, EPA is not 

proposing to approve or disapprove any 

existing state provisions with regard to 

excess emissions during SSM of 

operations at facilities.’’ EPA further 

explained, for informational purposes, 

that ‘‘EPA plans to address such State 

regulations in the future.’’ EPA made 

similar statements, for similar reasons, 

with respect to the director’s discretion, 

minor source NSR, and NSR Reform 

issues. EPA’s objective was to make 

clear that approval of an infrastructure 

SIP for these ozone and PM2.5 NAAQS 

should not be construed as explicit or 

implicit reapproval of any existing 

provisions that relate to these four 

substantive issues. 

Unfortunately, the commenters and 

others evidently interpreted these 

statements to mean that EPA considered 

action upon the SSM provisions and the 

other three substantive issues to be 

integral parts of acting on an 

infrastructure SIP submission, and 

therefore that EPA was merely 

postponing taking final action on the 

issue in the context of the infrastructure 

SIPs. This was not EPA’s intention. To 

the contrary, EPA only meant to convey 

its awareness of the potential for certain 

types of deficiencies in existing SIPs, 

and to prevent any misunderstanding 

that it was reapproving any such 

existing provisions. EPA’s intention was 

to convey its position that the statute 

does not require that infrastructure SIPs 

address these specific substantive issues 

in existing SIPs and that these issues 

may be dealt with separately, outside 

the context of acting on the 

infrastructure SIP submission of a state. 

To be clear, EPA did not mean to imply 

that it was not taking a full final agency 

action on the infrastructure SIP 

submission with respect to any 

substantive issue that EPA considers to 

be a required part of acting on such 

submissions under section 110(k) or 

under section 110(c). Given the 

confusion evidently resulting from 

EPA’s statements, however, we want to 

explain more fully the Agency’s reasons 

for concluding that these four potential 

substantive issues in existing SIPs may 

be addressed separately. 

The requirement for the SIP 

submissions at issue arises out of CAA 

section 110(a)(1). That provision 

requires that states must make a SIP 

submission ‘‘within 3 years (or such 

shorter period as the Administrator may 

prescribe) after the promulgation of a 

national primary ambient air quality 

standard (or any revision thereof)’’ and 

that these SIPS are to provide for the 

‘‘implementation, maintenance, and 

enforcement’’ of such NAAQS. Section 

110(a)(2) includes a list of specific 

elements that ‘‘[e]ach such plan’’ 

submission must meet. EPA has 

historically referred to these particular 

submissions that states must make after 

the promulgation of a new or revised 

NAAQS as ‘‘infrastructure SIPs.’’ This 

specific term does not appear in the 

statute, but EPA uses the term to 

distinguish this particular type of SIP 

submission designed to address basic 

structural requirements of a SIP from 

other types of SIP submissions designed 

to address other different requirements, 

such as ‘‘nonattainment SIP’’ 

submissions required to address the 

nonattainment planning requirements of 

part D, ‘‘regional haze SIP’’ submissions 

required to address the visibility 

protection requirements of CAA section 

169A, NSR permitting program 

submissions required to address the 

requirements of part D, and a host of 

other specific types of SIP submissions 

that address other specific matters. 

Although section 110(a)(1) addresses 

the timing and general requirements for 

these infrastructure SIPs, and section 

110(a)(2) provides more details 


emcdonald on DSK2BSOYB1PROD with RULES
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Rules and Regulations 43901 

6For example, section 110(a)(2)(E) provides that 

states must provide assurances that they have 

adequate legal authority under state and local law 

to carry out the SIP; section 110(a)(2)(C) provides 

that states must have a substantive program to 

address certain sources as required by part C of the 

CAA; section 110(a)(2)(G) provides that states must 

have both legal authority to address emergencies 

and substantive contingency plans in the event of 

such an emergency. 

7For example, section 110(a)(2)(D)(i) requires 

EPA to be sure that each SIP contains adequate 

provisions to prevent significant contribution to 

nonattainment of the NAAQS in other states. This 

provision contains numerous terms that require 

substantial rulemaking by EPA in order to 

determine such basic points as what constitutes 

significant contribution. See, e.g., ‘‘Rule To Reduce 

Interstate Transport of Fine Particulate Matter and 

Ozone (Clean Air Interstate Rule); Revisions to Acid 

Rain Program; Revisions to the NOX SIP Call; Final 

Rule,’’ 70 FR 25,162 (May 12, 2005)(defining, 

among other things, the phrase ‘‘contribute 

significantly to nonattainment’’). 

8See, e.g., Id., 70 FR 25,162, at 63–65 (May 12, 

2005) (explaining relationship between timing 

requirement of section 110(a)(2)(D) versus section 

110(a)(2)(I)). 

9EPA issued separate guidance to states with 

respect to SIP submissions to meet section 

110(a)(2)(D)(i) for the 1997 ozone and 1997 PM2.5

NAAQS. See, ‘‘Guidance for State Implementation 

Plan (SIP) Submissions to Meet Current 

Outstanding Obligations Under Section 

110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5

National Ambient Air Quality Standards,’’ from 

William T. Harnett, Director Air Quality Policy 

Division OAQPS, to Regional Air Division Director, 

Regions I–X, dated August 15, 2006. 

10For example, implementation of the 1997 PM2.5

NAAQS required the deployment of a system of 

new monitors to measure ambient levels of that new 

indicator species for the new NAAQS. 

11See, ‘‘Guidance on SIP Elements Required 

Under Section 110(a)(1) and (2) for the 1997 8-hour 

Ozone and PM2.5 National Ambient Air Quality 

Standards,’’ from William T. Harnett, Director Air 

Quality Policy Division, to Air Division Directors, 

Regions I–X, dated October 2, 2007 (the ‘‘2007 

Guidance’’). EPA issued comparable guidance for 

the 2006 PM2.5 NAAQS entitled ‘‘Guidance on SIP 

Elements Required Under Sections 110(a)(1) and (2) 

for the 2006 24-Hour Fine Particle (PM2.5) National 

Ambient Air Quality Standards (NAAQS),’’ from 

William T, Harnett, Director Air Quality Policy 

Division, to Regional Air Division Directors, 

Regions I–X, dated September 25, 2009 (the ‘‘2009 

Guidance’’). 

12 Id., at page 2. 

13 Id., at attachment A, page 1. 

concerning the required contents of 

these infrastructure SIPs, EPA believes 

that many of the specific statutory 

provisions are facially ambiguous. In 

particular, the list of required elements 

provided in section 110(a)(2) contains a 

wide variety of disparate provisions, 

some of which pertain to required legal 

authority, some of which pertain to 

required substantive provisions, and 

some of which pertain to requirements 

for both authority and substantive 

provisions.6 Some of the elements of 

section 110(a)(2) are relatively 

straightforward, but others clearly 

require interpretation by EPA through 

rulemaking, or recommendations 

through guidance, in order to give 

specific meaning for a particular 

NAAQS.7

Notwithstanding that section 110(a)(2) 

states that ‘‘each’’ SIP submission must 

meet the list of requirements therein, 

EPA has long noted that this literal 

reading of the statute is internally 

inconsistent, insofar as section 

110(a)(2)(I) pertains to nonattainment 

SIP requirements that could not be met 

on the schedule provided for these SIP 

submissions in section 110(a)(1).8 This 

illustrates that EPA must determine 

which provisions of section 110(a)(2) 

may be applicable for a given 

infrastructure SIP submission. 

Similarly, EPA has previously decided 

that it could take action on different 

parts of the larger, general 

‘‘infrastructure SIP’’ for a given NAAQS 

without concurrent action on all 

subsections, such as section 

110(a)(2)(D)(i), because the Agency 

bifurcated the action on these latter 

‘‘interstate transport’’ provisions within 

section 110(a)(2) and worked with states 

to address each of the four prongs of 

section 110(a)(2)(D)(i) with substantive 

administrative actions proceeding on 

different tracks with different 

schedules.9 This illustrates that EPA 

may conclude that subdividing the 

applicable requirements of section 

110(a)(2) into separate SIP actions may 

sometimes be appropriate for a given 

NAAQS where a specific substantive 

action is necessitated, beyond a mere 

submission addressing basic structural 

aspects of the SIP. Finally, EPA notes 

that not every element of section 

110(a)(2) would be relevant, or as 

relevant, or relevant in the same way, 

for each new or revised NAAQS and the 

attendant infrastructure SIP submission 

for that NAAQS. For example, the 

monitoring requirements that might be 

necessary for purposes of section 

110(a)(2)(B) for one NAAQS could be 

very different than what might be 

necessary for a different pollutant. Thus, 

the content of an infrastructure SIP 

submission to meet this element from a 

state might be very different for an 

entirely new NAAQS, versus a minor 

revision to an existing NAAQS.10

Similarly, EPA notes that other types 

of SIP submissions required under the 

statute also must meet the requirements 

of section 110(a)(2), and this also 

demonstrates the need to identify the 

applicable elements for other SIP 

submissions. For example, 

nonattainment SIPs required by part D 

likewise have to meet the relevant 

subsections of section 110(a)(2) such as 

section 110(a)(2)(A) or (E). By contrast, 

it is clear that nonattainment SIPs 

would not need to meet the portion of 

section 110(a)(2)(C) that pertains to part 

C, i.e., the PSD requirement applicable 

in attainment areas. Nonattainment SIPs 

required by part D also would not need 

to address the requirements of section 

110(a)(2)(G) with respect to emergency 

episodes, as such requirements would 

not be limited to nonattainment areas. 

As this example illustrates, each type of 

SIP submission may implicate some 

subsections of section 110(a)(2) and not 

others. 

Given the potential for ambiguity of 

the statutory language of section 

110(a)(1) and (2), EPA believes that it is 

appropriate for EPA to interpret that 

language in the context of acting on the 

infrastructure SIPs for a given NAAQS. 

Because of the inherent ambiguity of the 

list of requirements in section 110(a)(2), 

EPA has adopted an approach in which 

it reviews infrastructure SIPs against 

this list of elements ‘‘as applicable.’’ In 

other words, EPA assumes that Congress 

could not have intended that each and 

every SIP submission, regardless of the 

purpose of the submission or the 

NAAQS in question, would meet each 

of the requirements, or meet each of 

them in the same way. EPA elected to 

use guidance to make recommendations 

for infrastructure SIPs for these NAAQS. 

On October 2, 2007, EPA issued 

guidance making recommendations for 

the infrastructure SIP submissions for 

both the 1997 8-hour ozone NAAQS and 

the 1997 PM2.5 NAAQS.11 Within this 

guidance document, EPA described the 

duty of states to make these submissions 

to meet what the Agency characterized 

as the ‘‘infrastructure’’ elements for 

SIPs, which it further described as the 

‘‘basic SIP requirements, including 

emissions inventories, monitoring, and 

modeling to assure attainment and 

maintenance of the standards.’’ 12 As 

further identification of these basic 

structural SIP requirements, 

‘‘attachment A’’ to the guidance 

document included a short description 

of the various elements of section 

110(a)(2) and additional information 

about the types of issues that EPA 

considered germane in the context of 

such infrastructure SIPs. EPA 

emphasized that the description of the 

basic requirements listed on attachment 

A was not intended ‘‘to constitute an 

interpretation of’’ the requirements, and 

was merely a ‘‘brief description of the 

required elements.’’ 13 EPA also stated 

its belief that with one exception, these 

requirements were ‘‘relatively self 

explanatory, and past experience with 

SIPs for other NAAQS should enable 

States to meet these requirements with 


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43902 Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Rules and Regulations 

14 Id., at page 4. In retrospect, the concerns raised 

by commenters with respect to EPA’s approach to 

some substantive issues indicates that the statute is 

not so ‘‘self explanatory,’’ and indeed is sufficiently 

ambiguous that EPA needs to interpret it in order 

to explain why these substantive issues do not need 

to be addressed in the context of infrastructure SIPs 

and may be addressed at other times and by other 

means. 

15EPA has recently issued a SIP call to rectify a 

specific SIP deficiency related to the SSM issue. 

See, ‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revision,’’ 74 FR 21,639 

(April 18, 2011). 

16EPA has recently utilized this authority to 

correct errors in past actions on SIP submissions 

related to PSD programs. See, ‘‘Limitation of 

Approval of Prevention of Significant Deterioration 

Provisions Concerning Greenhouse Gas EmittingSources in State Implementation Plans; Final Rule,’’ 

75 FR 82,536 (Dec. 30, 2010). EPA has previously 

used its authority under CAA 110(k)(6) to remove 

numerous other SIP provisions that the Agency 

determined it had approved in error. See, e.g., 61 

FR 38,664 (July 25, 1996) and 62 FR 34,641 (June 

27, 1997) (corrections to American Samoa, Arizona, 

California, Hawaii, and Nevada SIPs); 69 FR 67,062 

(November 16, 2004) (corrections to California SIP); 

and 74 FR 57,051 (November 3, 2009) (corrections 

to Arizona and Nevada SIPs). 

17EPA has recently disapproved a SIP submission 

from Colorado on the grounds that it would have 

included a director’s discretion provision 

inconsistent with CAA requirements, including 

section 110(a)(2)(A). See, e.g., 75 FR 42,342 at 

42,344 (July 21,2010) (proposed disapproval of 

director’s discretion provisions); 76 FR 4,540 (Jan. 

26, 2011) (final disapproval of such provisions). 

assistance from EPA Regions.’’ 14 For the 

one exception to that general 

assumption, however, i.e., how states 

should proceed with respect to the 

requirements of section 110(a)(2)(G) for 

the 1997 PM2.5 NAAQS, EPA gave much 

more specific recommendations. But for 

other infrastructure SIP submittals, and 

for certain elements of the submittals for 

the 1997 PM2.5 NAAQS, EPA assumed 

that each state would work with its 

corresponding EPA regional office to 

refine the scope of a state’s submittal 

based on an assessment of how the 

requirements of section 110(a)(2) should 

reasonably apply to the basic structure 

of the SIP for the NAAQS in question. 

Significantly, the 2007 Guidance did 

not explicitly refer to the SSM, 

director’s discretion, minor source NSR, 

or NSR Reform issues as among specific 

substantive issues EPA expected states 

to address in the context of the 

infrastructure SIPs, nor did EPA give 

any more specific recommendations 

with respect to how states might address 

such issues even if they elected to do so. 

The SSM and director’s discretion 

issues implicate section 110(a)(2)(A), 

and the minor source NSR and NSR 

Reform issues implicate section 

110(a)(2)(C). In the 2007 Guidance, 

however, EPA did not indicate to states 

that it intended to interpret these 

provisions as requiring a substantive 

submission to address these specific 

issues in the context of the 

infrastructure SIPs for these NAAQS. 

Instead, EPA’s 2007 Guidance merely 

indicated its belief that the states should 

make submissions in which they 

established that they have the basic SIP 

structure necessary to implement, 

maintain, and enforce the NAAQS. EPA 

believes that states can establish that 

they have the basic SIP structure, 

notwithstanding that there may be 

potential deficiencies within the 

existing SIP. Thus, EPA’s proposals 

mentioned these issues not because the 

Agency considers them issues that must 

be addressed in the context of an 

infrastructure SIP as required by section 

110(a)(1) and (2), but rather because 

EPA wanted to be clear that it considers 

these potential existing SIP problems as 

separate from the pending infrastructure 

SIP actions. 

EPA believes that this approach to the 

infrastructure SIP requirement is 

reasonable, because it would not be 

feasible to read section 110(a)(1) and (2) 

to require a top to bottom, stem to stern, 

review of each and every provision of an 

existing SIP merely for purposes of 

assuring that the state in question has 

the basic structural elements for a 

functioning SIP for a new or revised 

NAAQS. Because SIPs have grown by 

accretion over the decades as statutory 

and regulatory requirements under the 

CAA have evolved, they may include 

some outmoded provisions and 

historical artifacts that, while not fully 

up to date, nevertheless may not pose a 

significant problem for the purposes of 

‘‘implementation, maintenance, and 

enforcement’’ of a new or revised 

NAAQS when EPA considers the overall 

effectiveness of the SIP. To the contrary, 

EPA believes that a better approach is 

for EPA to determine which specific SIP 

elements from section 110(a)(2) are 

applicable to an infrastructure SIP for a 

given NAAQS, and to focus attention on 

those elements that are most likely to 

need a specific SIP revision in light of 

the new or revised NAAQS. Thus, for 

example, EPA’s 2007 Guidance 

specifically directed states to focus on 

the requirements of section 110(a)(2)(G) 

for the 1997 PM2.5 NAAQS because of 

the absence of underlying EPA 

regulations for emergency episodes for 

this NAAQS and an anticipated absence 

of relevant provisions in existing SIPs. 

Finally, EPA believes that its 

approach is a reasonable reading of 

section 110(a)(1) and (2) because the 

statute provides other avenues and 

mechanisms to address specific 

substantive deficiencies in existing SIPs. 

These other statutory tools allow the 

Agency to take appropriate tailored 

action, depending upon the nature and 

severity of the alleged SIP deficiency. 

Section 110(k)(5) authorizes EPA to 

issue a ‘‘SIP call’’ whenever the Agency 

determines that a SIP is substantially 

inadequate to attain or maintain the 

NAAQS, to mitigate interstate transport, 

or otherwise to comply with the CAA.15

Section 110(k)(6) authorizes EPA to 

correct errors in past actions, such as 

past approvals of SIP submissions.16

Significantly, EPA’s determination that 

an action on the infrastructure SIP is not 

the appropriate time and place to 

address all potential existing SIP 

problems does not preclude the 

Agency’s subsequent reliance on 

provisions in section 110(a)(2) as part of 

the basis for action at a later time. For 

example, although it may not be 

appropriate to require a state to 

eliminate all existing inappropriate 

director’s discretion provisions in the 

course of acting on the infrastructure 

SIP, EPA believes that section 

110(a)(2)(A) may be among the statutory 

bases that the Agency cites in the course 

of addressing the issue in a subsequent 

action.17

II. Response to Comments 

EPA received two comment letters on 

June 22, 2011, one from WildEarth 

Guardians (WEG) and the other from 

Western Resource Advocates (WRA), 

both environmental organizations. The 

WRA comment letter was written on 

behalf of both WRA and the 

organization Utah Physicians for a 

Healthy Environment (UPHE). The 

significant comments made by WRA 

and EPA’s responses to those comments 

are given below in Section (A). The 

significant comments made by WEG and 

EPA’s responses to those comments are 

given below in Section (B). 

Section A: WRA Comments and EPA 

Responses 

Comment No. 1: The commenter 

stated that the State of Utah must strike 

from its regulations ‘‘any provisions 

allowing ‘director’s discretion’ to 

change unilaterally EPA-approved SIPbased emission limits, permitting 

variances and exempting excess startup, 

shutdown and malfunction emissions 

from compliance and enforcement 

provisions.’’ The commenter further 

stated that ‘‘definitive EPA action’’ on 

such provisions ‘‘cannot come too 

soon.’’ 

EPA Response: EPA shares the 

commenter’s concerns that such 

provisions can have adverse impacts on 

air planning and enforcement, and as a 

result can have an adverse impact on 


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18The comment does not precisely state which 

existing ozone monitoring data the commenter 

refers to. For a discussion of other monitoring data 

in the Uinta Basin, see the response to comment 1 

in section B below. 

protection of public health. As 

discussed in greater depth in the 

Background section, EPA is not 

addressing startup, shutdown, and 

malfunction (SSM), variance, or 

director’s discretion provisions in the 

context of this action on 110(a)(2) 

requirements for the 1997 ozone 

NAAQS. As stated in the NPR, EPA 

intends to address these issues 

separately at a later date. 

However, with respect to the 

commenter’s concerns about SSM 

provisions, EPA notes that the Agency 

has already issued a finding of 

substantial inadequacy and called for a 

SIP revision for Utah’s ‘‘unavoidable 

breakdown’’ rule (76 FR 21639, Apr. 18, 

2011). This action preceded, was 

independent of, and was not required 

for our action on section 110(a)(2)(A) for 

the 1997 ozone NAAQS. EPA considers 

this an important step towards 

addressing the issue noted by the 

commenter. 

Comment No. 2: The commenter 

supported EPA efforts to address issues 

concerning the monitoring network for 

ozone in Utah. In particular, the 

commenter supported EPA’s efforts to 

encourage the State to address the 

monitoring network in the Saint George 

area, specifically by completing its 

ozone saturation study in 2011, using 

that study to identify maximum 

concentration locations, and adjusting 

the monitoring network as required by 

the study. However, the commenter also 

urged EPA to require immediate action 

from the State to ensure adequate 

monitoring in the Saint George area, 

and, if necessary, immediately 

implement any controls necessary to 

bring the area into compliance with the 

ozone NAAQS. 

EPA Response: EPA acknowledges the 

support for our conditional approval, 

based on Utah’s commitment to make 

improvements with regard to 

monitoring as the commenter described. 

EPA notes that the State has committed 

to doing so within one year, and that 

with this data the State and EPA can 

then evaluate what additional actions 

may be necessary based upon better 

information concerning the ambient air 

quality in the area. 

With respect to the 1997 ozone 

NAAQS, the data collected in southern 

Utah have not suggested a potential for 

ozone levels to violate that standard. 

From data collected in Zion National 

Park (2004–2010), Saint George (1995– 

1997), Santa Clara (2008–2010), and 

Mesquite, Nevada (33 miles southwest 

of Saint George and 13 miles from the 

Utah border), the highest design value 

recorded was 79 parts per billion (ppb) 

in Zion National Park in 2004–2006. 

While the current Santa Clara monitor 

has not been shown to be sited to 

measure maximum concentration 

monitoring, there is no evidence to 

suggest a maximum concentration 

monitoring site elsewhere would record 

data in excess of the 1997 ozone 

NAAQS. Utah’s commitment to 

ensuring that a monitor is placed at the 

maximum concentration site will allow 

the State and EPA to correctly assess air 

quality in the Saint George metropolitan 

statistical area (MSA). 

Comment No. 3: The commenter 

supported EPA’s efforts to regulate 

greenhouse gases. 

EPA Response: EPA presumes that the 

commenter’s support related to EPA’s 

efforts to insure that the Utah 

infrastructure SIP adequately addresses 

PSD permitting requirements with 

respect to greenhouse gases as discussed 

in the NPR in accordance with the PSD 

SIP Narrowing Rule. As discussed in the 

background section above, in response 

to our proposal, Utah clarified that its 

infrastructure certification should not be 

read to rely on the portion of the PSD 

program for which the PSD SIP 

Narrowing Rule withdrew approval. 

Therefore, EPA has concluded that the 

current EPA approved Utah SIP is 

consistent with section 110(a)(2)(C) for 

purposes of greenhouse gases. 

Comment No. 4: The commenter 

supported EPA’s efforts to require ozone 

monitoring in Utah’s Uinta Basin. 

However, the commenter urged EPA to 

use existing ozone monitoring data, 

which the commenter claimed ‘‘plainly 

show that air quality in the basin is not 

in compliance with the ozone 

standard,’’ to designate the Uinta Basin 

as nonattainment for ozone.18 The 

commenter also urged EPA to require 

Utah to install monitors in Vernal, Utah. 

EPA Response: EPA shares the 

concerns of the commenters with 

respect to the monitoring network in 

Utah. However, in this action EPA is 

evaluating the adequacy of the 

infrastructure SIP of the State with 

respect to the 1997 8-hour ozone 

NAAQS. EPA has specific regulatory 

requirements at 40 CFR part 58 that 

provide requirements for the ambient air 

monitoring network required by section 

110(a)(2)(B) of the Act for these NAAQS. 

As discussed in the response to 

comment 3 in section B below, 40 CFR 

part 58 does not contain requirements 

for the State to monitor for ozone in the 

Uinta Basin. EPA therefore has no basis 

in this action to disapprove the 

infrastructure SIP due to the absence of 

an ozone monitor in Vernal. 

Nonetheless, EPA notes that both Utah 

Department of Environmental Quality 

(DEQ) and the Ute Indian Tribe of the 

Uintah and Ouray Reservation began 

ozone monitoring in the Uinta Basin in 

2011. These monitors should provide 

data that can be used to evaluate the 

appropriate designation for the Uinta 

Basin area, once there is sufficient data. 

Promulgation of area designations for a 

NAAQS is outside the scope of this 

action, the purpose of which is limited 

to review the Utah SIP for compliance 

with the infrastructure SIP requirements 

of section 110(a)(2) for the 1997 8-hour 

ozone NAAQS. 

Comment No. 5: The commenter 

stated that ‘‘Utah’s PSD program fails to 

comply’’ with the CAA, and therefore 

encouraged EPA to disapprove the 

State’s submission with regards to its 

PSD program and the requirements of 

section 110(a)(2)(J). Specifically, the 

commenter asserted that the State’s PSD 

program fails to comply with 40 CFR 

70.4(b)(3)(x) with respect to the 

availability of state judicial review for 

persons who participated in the public 

process required under 40 CFR 70.7(h). 

In essence, the commenter cited rules 

and statutes governing Utah 

administrative appeal proceedings, 

including administrative appeal of PSD 

permits issued by the State, and argued 

(for several reasons) that these provide 

inadequate opportunity for members of 

the public to participate in 

administrative appeals. The commenter 

linked this to the availability of state 

judicial review of PSD permits by citing 

a statutory requirement in Utah’s 

Administrative Procedure Act requiring 

parties seeking judicial review to 

exhaust all administrative remedies 

available. 

EPA Response: In this action, EPA is 

evaluating the State’s PSD permit 

program under sections 110(a)(2)(C) and 

(J), and, more generally, Utah’s SIP 

under section 110(a)(2). The regulatory 

provision that the commenter cited, 40 

CFR 70.4(b)(3), and the corresponding 

statutory provision in section 503(b)(6) 

of the CAA, apply only to Title V 

operating permit programs. In other 

words, section 503(b)(6) and 40 CFR 

70.4(b)(3) do not apply to PSD permits. 

Furthermore, Utah’s Title V program is 

not part of the Utah SIP. Therefore, any 

potential deficiency in Utah’s Title V 

program with regards to availability of 

state judicial review is outside the scope 

of this action on the infrastructure SIP, 

and the comment gives us no basis to 


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19Although EPA is not assessing the availability 

of state judicial review for PSD permits issued by 

Utah, as the CAA makes no requirements regarding 

such availability, EPA also notes that the comment 

does not explain, for example, why denial of a 

petition to intervene in a state administrative PSD 

permit proceeding would not exhaust the 

petitioner’s administrative remedies and therefore 

make state judicial review available to the 

petitioner. 

20Similarly, a proposed conforming amendment 

to UAC section R307–103 (containing the current 

administrative procedures for adjudicative 

proceedings under the Utah Air Conservation Act) 

was published May 1, 2011, but no notice of 

effective date has been published. The status of 

these proposals is confirmed by the Utah Division 

of Administrative Rules Web page, Rules Effective 

Since Last Codification, available at http:// 

www.rules.utah.gov/publicat/codificationsegue.htm 

(last visited June 29, 2011). 

21The monitoring data provided by WEG to 

support this argument is available in the docket for 

this action. 

change our proposed action on section 

110(a)(2)(J).19

In addition, the comment expressed 

concerns primarily with a version of 

Utah Administrative Code (UAC) 

section R305–6–202 that the comment 

describes as effective July, 2011. The 

commenter did not provide a copy of 

the section showing that it had been 

adopted. A proposal to adopt the 

version of R305–6–202 for which the 

comment provides concerns was 

published in the Utah State Bulletin on 

March 15, 2011, with a potential 

effective date of July 1, 2011.20

Subsequent issues of the Utah State 

Bulletin (through June 15, 2011) have 

not provided a notice of effective date 

for the proposal, a requirement under 

section 63G–301–3(12) of the Utah 

Administrative Procedures Act for a rule 

to become effective. Thus, the rule has 

only been proposed and not adopted, 

and any deficiencies there may be 

within it do not provide a basis for EPA 

to change its proposed approval of the 

current Utah infrastructure SIP for the 

1997 ozone NAAQS for elements 

110(a)(2)(C) and (J). 

Section B: WEG Comments and EPA 

Responses 

Comment No. 1: The commenter 

expressed concern that Utah’s SIP fails 

‘‘to attain and maintain the 1997 8-hour 

ozone NAAQS in the Uinta Basin.’’ The 

commenter pointed to existing 

monitoring data from two monitors in 

the Uinta Basin over two years and part 

of a third to argue that the standard is 

currently being violated.21 The 

commenter asserted that EPA cannot 

find that Utah’s SIP meets section 

110(a)(2)(1) and (2) requirements unless 

the EPA addresses the high ozone levels 

in the Uinta Basin and uses the 

resources necessary ‘‘to attain and 

maintain the NAAQS.’’ 

EPA Response: EPA disagrees with 

the commenter’s view that the monitor 

data asserted by the commenter has a 

bearing on the action on the State’s 

infrastructure SIP submission. First, 

there are currently no nonattainment 

areas designated in Utah for the 1997 

ozone NAAQS. Thus, the State is not 

currently under an obligation to submit 

a SIP to meet the requirements of Part 

D of title I. More importantly, as 

explained in the NPR, Part D 

requirements are outside the scope of 

this action. EPA therefore disagrees with 

the assertion that, as a result of the cited 

monitoring data, EPA cannot approve 

the Utah infrastructure SIP for the 1997 

ozone NAAQS. 

Furthermore, EPA notes that data 

cited by the commenter is also not of the 

type that is needed for making 

attainment determinations. The 

monitoring data referenced by the 

commenter was collected by industrial 

entities at non-regulatory monitors 

located in Indian country, outside the 

jurisdiction of the State of Utah. 

Furthermore, data collected by the 

National Park Service in Dinosaur 

National Monument (albeit also using a 

non-regulatory monitoring method) 

indicate a preliminary design value of 

only 73 ppb for the maximum 3-year 

average in 2009–2011. This data 

represents the ambient level at a 

geographic location within the Uinta 

Basin that is available outside Indian 

country in Utah. Thus, there is currently 

no data from monitoring sites on State 

jurisdiction lands in or near the Uinta 

Basin showing violations of the 1997 

ozone standard. 

Comment No. 2: The commenter 

claims that the State’s commitment 

letter to update its ozone monitoring 

network does not represent a 

commitment that justifies conditional 

approval, as the letter does not commit 

to ensuring the actual installation of a 

monitor in the Saint George area in 

accordance with 40 CFR part 58, 

Appendix D, 4.1(b), and other 

requirements. The commenter also 

states that EPA did not clearly state the 

timeline by which a conditional 

approval reverts to a disapproval, and 

requests EPA to clarify this statement. 

EPA Response: EPA disagrees with 

this comment. The commitment by the 

State is appropriately tailored to require 

the analysis necessary to determine if a 

monitor should be installed in the Saint 

George’s area. The letter acknowledges 

that the State has not demonstrated that 

the existing Santa Clara monitor 

represents the maximum concentration 

site in the Saint George core-based 

statistical area (CBSA) and that the Zion 

monitoring site operated by the National 

Park Service has recorded higher ozone 

values. The letter commits to 

completing the current saturation study 

to determine whether the Santa Clara 

site represents the maximum 

concentration site, and, if the study 

shows it necessary, to relocate the 

monitor in accordance with the 

requirements of section 4.1 of Appendix 

D. Of course, if the study is sufficient to 

demonstrate that the existing Santa 

Clara site meets the requirements of 

Appendix D, then no further action is 

necessary to comply with Appendix D. 

Appendix D requires that Utah 

operate an ozone monitor in the Saint 

George CBSA, requires that at least one 

monitor in the Saint George CBSA be 

designed to measure maximum 

concentration, and that the siting of the 

Saint George monitor(s) be approved by 

the EPA Regional Administrator. EPA’s 

conditional approval requires Utah to 

comply with these requirements within 

1 year of the publication of the final 

rule. If the EPA Regional Administrator 

has not approved the monitor siting in 

the Saint George CBSA within 1 year of 

publication of the final rule, the 

conditional approval of the Utah 

infrastructure SIP for section 

110(a)(2)(B) for the 1997 ozone NAAQS 

will automatically revert to disapproval. 

Comment No. 3: The commenter 

expressed concern that the ozone 

monitoring sites in the Uinta Basin do 

not fully comply with 40 CFR part 58, 

specifically the requirement that 

‘‘monitors are sited to ensure that 

maximum concentrations are recorded.’’ 

The commenter also stated that, in order 

to meet the requirements of section 

110(a)(2)(B), EPA must ensure the Utah 

SIP requires the State to monitor ozone 

during the winter months, particularly 

in the Uinta Basin. The commenter 

asserted that monitoring should 

continue during the winter months 

when the highest ambient levels occur. 

EPA Response: EPA disagrees with 

the commenter’s view that the current 

SIP is not approvable under section 

110(a)(2)(B), based on the monitoring 

concerns raised by the commenter. The 

existing Utah ozone monitoring network 

and plan comply with 40 CFR part 58 

requirements with respect to Uintah, 

Duchesne and Carbon counties. 40 CFR 

part 58 does not currently require ozone 

monitoring in the Uinta Basin, because 

ozone monitoring is only required in 

Metropolitan Statistical Areas (MSAs). 

Furthermore, the maximum 

concentration monitoring requirement 

of Appendix D applies specifically to 

monitoring in MSAs, defined in 40 CFR 

58.1 as ‘‘a CBSA associated with at least 


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Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Rules and Regulations 43905 

one urbanized area of 50,000 population 

or greater.’’ There are no such MSAs in 

Uintah, Duchesne, or Carbon counties. 

With respect to the season during 

which monitoring is currently required, 

the required ozone monitoring seasons 

are provided in Appendix D, which 

currently specifies monitoring from May 

through September. EPA published a 

proposed revision to the ozone 

monitoring season for Utah on July 16, 

2009 (74 FR 34525). EPA then published 

more recent data from Utah, Colorado 

and Kansas relevant to that proposal in 

a Notice of Data Availability on 

November 10, 2010 (75 FR 60936) and 

solicited comment on the applicability 

of that data to the required monitoring 

season at that time. If EPA finalizes the 

proposed revisions to the ozone 

monitoring season for Utah, the 

monitoring season will be extended and 

EPA anticipates that this would help to 

address the underlying concern of the 

commenters. At this point, however, 

Utah complies with the existing 

monitoring season requirements of 

Appendix D. 

Comment No. 4: The commenter 

states that EPA cannot approve Utah’s 

SIP as meeting CAA section 110(a)(2)(L) 

requirements. Citing 42 U.S.C. section 

7661a(b)(3)(B)(v) and 40 CFR 

70.9(b)(2)(iv), the commenter argues that 

Utah’s Title V program does not 

increase permit fees each year in 

accordance with the Consumer Price 

Index as required. 

EPA Response: EPA disagrees with 

this comment. As stated in the text of 

the section, 110(a)(2)(L) is no longer 

applicable to Title V operating permit 

programs after approval of such 

programs. As noted in the NPR, the 

Administrator’s final approval of Utah’s 

Title V operating permit program, 

including the Title V fee program, 

became effective on July 10, 1995 (60 FR 

30192). Therefore, EPA concludes that 

the Utah infrastructure SIP for the 1997 

ozone NAAQS meets the requirements 

of section 110(a)(2)(L) with respect to 

the Title V program. 

III. Final Action 

In this action, EPA is approving in 

full the following section 110(a)(2) 

infrastructure elements for Utah for the 

1997 ozone NAAQS: (A), (C), (D)(ii), (E), 

(F), (G), (H), (J), (K), (L), and (M). EPA 

is conditionally approving section 

110(a)(2)(B) for the 1997 ozone NAAQS, 

and will fully approve this element if 

Utah takes the measures detailed in the 

State’s May 12, 2011 commitment letter 

within one year after the date of this 

final action. If, however, Utah does not 

implement the measures specified in its 

commitment within one year after the 

date of this action, EPA’s conditional 

approval will automatically revert to 

disapproval of the infrastructure SIP for 

section 110(a)(2)(B) for the 1997 ozone 

NAAQS. 

IV. 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 action 

merely approves some state law as 

meeting Federal requirements and 

disapproves other state law because it 

does not meet Federal requirements; 

this action does not impose additional 

requirements beyond those imposed by 

state law. For that reason, this 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. 

The Congressional Review Act, 5 

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

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

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

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

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

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by September 20, 

2011. Filing a petition for 

reconsideration by the Administrator of 

this final rule does not affect the finality 

of this action for the purposes of judicial 

review nor does it extend the time 

within which a petition for judicial 

review may be filed, and shall not 

postpone the effectiveness of such rule 

or action. This action may not be 

challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: June 30, 2011. 

James B. Martin, 

Regional Administrator, Region 8. 

40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart TT—Utah 

■ 2. Section 52.2355 is added to read as 

follows: 


emcdonald on DSK2BSOYB1PROD with RULES
43906 Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Rules and Regulations 

1Memorandum 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). 

2See the NPR (76 FR 28707) for further 

explanation regarding the omission of elements 

110(a)(2)(D)(i) and 110(a)(2)(I) from the proposal. 

§ 52.2355 Section 110(a)(2) infrastructure 

requirements. 

On December 3, 2007 Jon L. 

Huntsman, Jr., Governor, State of Utah, 

submitted a certification letter which 

provides the State of Utah’s SIP 

provisions which meet the requirements 

of CAA Section 110(a)(1) and (2) 

relevant to the 1997 Ozone NAAQS. On 

December 21, 2009 M. Cheryl Heying, 

Director, Utah Division of Air Quality, 

Department of Environmental Quality 

for the State of Utah, submitted 

supporting documentation which 

provides the State of Utah’s SIP 

provisions which meet the requirements 

of CAA Section 110(a)(1) and (2) 

relevant to the 1997 Ozone NAAQS. 

[FR Doc. 2011–18416 Filed 7–21–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[EPA–R08–OAR–2009–0809; FRL–9442–1] 

Approval and Promulgation of State 

Implementation Plan Revisions; 

Infrastructure Requirements for the 

1997 8-Hour Ozone National Ambient 

Air Quality Standard; Colorado 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving the State 

Implementation Plan (SIP) submission 

from the State of Colorado to 

demonstrate that the SIP meets the 

requirements of Sections 110(a)(1) and 

(2) of the Clean Air Act (CAA) for the 

National Ambient Air Quality Standards 

(NAAQS) promulgated for ozone on July 

18, 1997. Section 110(a)(1) of the CAA 

requires that each state, after a new or 

revised NAAQS is promulgated, review 

their SIPs to ensure that they meet the 

requirements of the ‘‘infrastructure 

elements’’ of section 110(a)(2). The State 

of Colorado submitted a certification, 

dated January 7, 2008, that its SIP met 

these requirements for the 1997 ozone 

NAAQS. The certification was 

determined to be complete on March 27, 

2008 (73 FR 16205). 

DATES: Effective Date: This final rule is 

effective August 22, 2011. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R08–OAR–2009–0809. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

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

copy at the Air Program, Environmental 

Protection Agency (EPA), Region 8, 

1595 Wynkoop Street, Denver, Colorado 

80202–1129. EPA requests that if at all 

possible, you contact the individual 

listed in the FOR FURTHER INFORMATION

CONTACT section to view the hard copy 

of the docket. You may view the hard 

copy of the docket Monday through 

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

Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

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. Background 

II. Response to Comments 

III. Final Action 

IV. Statutory and Executive Order Reviews 

I. 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 

a state develops and submits its 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 a 

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

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 Colorado had 

submitted a complete SIP 

(‘‘Infrastructure SIP’’) to meet these 

requirements. 

On May 18, 2011, EPA published a 

notice of proposed rulemaking (NPR) for 

the State of Colorado (76 FR 28707) to 

act on the State’s Infrastructure SIP for 

the 1997 ozone NAAQS. Specifically, in 

the NPR EPA proposed approval of 

Colorado’s SIP as meeting the 

requirements of all section 110(a)(2) 

elements with respect to the 1997 ozone 

NAAQS, aside from elements 

110(a)(2)(D)(i), 110(a)(2)(I), and the 

visibility protection requirement of 

element 110(a)(2)(J), on which EPA did 

not propose action.2 EPA received a 

comment on section 110(a)(2)(E)(ii), and 

EPA is not finalizing today its proposed 

approval for this sub-element in order to 

fully respond to that comment. 

EPA proposed to approve element 

110(a)(2)(C) for the 1997 ozone NAAQS 

in the event that the State clarified (or 

modified) its January 7, 2008 

certification to ensure consistency with 

two rules related to regulation of 


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