```

[Federal Register Volume 78, Number 164 (Friday, August 23, 2013)]
[Proposed Rules]
[Pages 52477-52485]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-20662]

[[Page 52477]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2011-0727; FRL-FRL-9900-24-Region 8]

Promulgation of State Implementation Plan Revisions; Revision to 
Prevention of Significant Deterioration Program; Infrastructure 
Requirements for the 1997 and 2006 PM2.5 National Ambient 
Air Quality Standards; Utah

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to partially approve and partially disapprove 
the State Implementation Plan (SIP) submissions from the State of Utah 
to demonstrate that the SIP meets the infrastructure requirements of 
the Clean Air Act (CAA) for the National Ambient Air Quality Standards 
(NAAQS) promulgated for particulate matter less than or equal to 2.5 
micrometers ([mu]m) in diameter (PM2.5) on July 18, 1997 and 
on October 17, 2006. The CAA requires that each state, after a new or 
revised NAAQS is promulgated, review their SIP to ensure that it meets 
the requirements of the ``infrastructure elements'' necessary to 
implement the new or revised NAAQS. The State of Utah provided 
infrastructure submissions for the 1997 and 2006 PM2.5 
NAAQS, dated April 17, 2008 and September 21, 2010, respectively. We 
propose to disapprove the submissions with respect to the requirements 
for state boards and to approve the remaining submissions that we have 
not already acted on. We also propose to approve portions of a 
submission from the State which was received by EPA on March 19, 2012. 
This submission revises Utah's Prevention of Significant Deterioration 
(PSD) program to meet Federal requirements as they existed on July 1, 
2011, including required elements of EPA's 2008 PM2.5 New 
Source Review (NSR) Implementation Rule and 2010 PM2.5 
Increment Rule. EPA acted separately on the State's submissions to meet 
certain interstate transport requirements of the CAA for the 2006 
PM2.5 NAAQS.

DATES: Written comments must be received on or before September 23, 
2013.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2011-0727, by one of the following methods:
    http://www.regulations.gov. Follow the on-line 
instructions for submitting comments.
     Email: ayala.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, 8:00 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-
2011-0727. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
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 www.regulations.gov or email. The 
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 email comment 
directly to EPA, without going through www.regulations.gov your email 
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 
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 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, 8:00 a.m. to 4:00 p.m., excluding 
federal holidays.

FOR FURTHER INFORMATION CONTACT: Kathy Ayala, Air Program, U.S. 
Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129. 303-312-6142, 
ayala.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 initials CBI mean or refer to confidential business 
information.
    (iii) The initials DEQ mean or refer to Department of Environmental 
Quality.
    (iv) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (v) The initials FIP mean or refer to a Federal Implementation 
Plan.
    (vi) The initials GHG mean or refer to greenhouse gases.
    (vii) The initials NAAQS mean or refer to national ambient air 
quality standards.
    (viii) The initials NOX mean or refer to nitrogen oxides.
    (ix) The initials NSR mean or refer to new source review.
    (x) The initials OAQPS mean or refer to the Office of Air Quality 
Planning and Standards.
    (xi) The initials PM mean or refer to particulate matter.
    (xii) The initials PM2.5 mean or refer to particulate matter with 
an aerodynamic diameter of less than 2.5 micrometers (fine particulate 
matter).
    (xiii) The initials ppm mean or refer to parts per million.

[[Page 52478]]

    (xiv) The initials PSD mean or refer to Prevention of Significant 
Deterioration.
    (xv) The initials SIP mean or refer to State Implementation Plan.
    (xvi) The initials SSM mean or refer to start-up, shutdown, or 
malfunction.
    (xvii) The initials UAC mean or refer to Utah Administrative Code.
    (xviii) The initials UCA mean or refer to Utah Code Annotated.
    (xix) The initials UDAQ mean or refer to the Utah Department of Air 
Quality.

Table of Contents

I. General Information
II. Background
III. What is the scope of this rulemaking?
IV. What infrastructure elements are required under Sections 
110(a)(1) and (2)?
V. How did Utah address the infrastructure elements of Sections 
110(a)(1) and (2)?
VI. What action is EPA taking?
VII. 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 email. 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 particulate matter 
less than or equal to 2.5 micrometers ([mu]m) in diameter 
(PM2.5). Two new PM2.5 standards were added, set 
at 15 [mu]g/m\3\, based on the 3-year average of annual arithmetic mean 
PM2.5 concentration from single or multiple community-
oriented monitors, and 65 [mu]g/m\3\, based on the 3-year average of 
the 98th percentile of 24-hour PM2.5 concentrations at each 
population-oriented monitor within an area. In addition, the 24-hour 
PM10 standard was revised to be based on the 99th percentile 
of 24-hour PM10 concentration at each monitor within an area 
(62 FR 38652).
    On October 17, 2006 EPA promulgated a revised NAAQS for 
PM2.5, tightening the level of the 24-hour PM2.5 
standard to 35 [mu]g/m\3\ and retaining the level of the annual 
PM2.5 standard at 15 [mu]g/m\3\. EPA also retained the 24-
hour PM10 standard and revoked the annual PM10 
standard (71 FR 61144). 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 and 2006 PM2.5 
NAAQS, states typically have met the basic program elements required in 
section 110(a)(2) through earlier SIP submissions in connection with 
previous NAAQS.

III. What is the scope of this rulemaking?

    This rulemaking will not cover four substantive issues that are not 
integral to acting on a state's infrastructure SIP submission: (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''); 
(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''); (iii) existing provisions for minor source 
NSR programs that may be inconsistent with the requirements of the CAA 
and EPA's regulations that pertain to such programs (``minor source 
NSR''); and, (iv) existing provisions for PSD programs that may be 
inconsistent with current requirements of EPA's ``Final NSR Improvement 
Rule,'' 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 
(June 13, 2007) (``NSR Reform''). Instead, EPA has indicated that it 
has other authority to address any such existing SIP defects in other 
rulemakings, as appropriate. A detailed rationale for why these four 
substantive issues are not part of the scope of infrastructure SIP 
rulemakings can be found in EPA's July 13, 2011, final rule entitled, 
``Infrastructure SIP Requirements for the 1997 8-hour Ozone and 
PM2.5 National Ambient Air Quality Standards'' in the 
section entitled, ``What Is The Scope Of This Final Rulemaking?'' (see 
76 FR 41075 at 41076-41079).

IV. 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.

[[Page 52479]]

     110(a)(2)(D): Interstate transport.
     110(a)(2)(E): Adequate resources and authority, conflict 
of interest, and oversight of local governments and regional agencies.
     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 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.
    EPA is acting separately on Utah's submission to meet the 
requirements of element 110(a)(2)(D)(i)(I), interstate transport of 
pollutants which contribute significantly to nonattainment in, or 
interfere with maintenance by, any other state. EPA is also acting 
separately on the visibility portion of element 110(a)(2)(D)(i)(II).
    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).

V. How did 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: The State's submissions for 
the 1997 and 2006 PM2.5 infrastructure requirements cite the 
Utah Code Annotated (UAC) SIP Section I (Legal Authority). A.1.a., 
codified at R307-110-2 which allows adoption of standards and limits 
for attainment and maintenance of national standards (19-2-104 and 109, 
UCA) and was approved by EPA 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 and 2006 PM NAAQS, subject to the following 
clarifications. First, this infrastructure element does not require the 
submittal of regulations or emission limitations developed specifically 
for attaining the 1997 and 2006 PM2.5 NAAQS. Aside from 
this, the Utah SIP currently contains provisions for control of 
particulate matter, such as open burning provisions in R307-202, and 
for control of precursors, such as fuel sulfur content provisions in 
R307-203. Utah also regulates sources of PM2.5 through its 
PSD and minor NSR programs. This suffices, in the case of Utah, to meet 
the requirements of section 110(a)(2)(A) for the 1997 and 2006 
PM2.5 NAAQS.
    Second, 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.\1\ 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). On May 9, 
2013 (78 FR 27165), EPA proposed to approve revisions submitted by Utah 
to correct the deficiencies identified in EPA's April 18, 2011 SIP 
call. 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 and 2006 PM2.5 NAAQS.
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    \1\ 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 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: The State's submissions for 
the 1997 and 2006 PM2.5 infrastructure requirements cite UAC 
rule R307-110-5 SIP Section IV (Ambient Air Monitoring Program) which 
provides a brief description of the purposes of the air monitoring 
program approved by EPA 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 
meet the requirements of CAA section 110(a)(2)(B) for the 1997 and 2006 
PM2.5 NAAQS. The State of Utah submitted a 2012 Air 
Monitoring Network Plan on June 5, 2013 which EPA approved for 
PM2.5 on July 24, 2013.
    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: The State's submissions for 
the 1997 and 2006 PM2.5 infrastructure requirements cite UAC 
rule R307-110-2, SIP Section I (Legal Authority), A.1.b., which allows 
for enforcement of applicable laws, regulations, and standards and to 
seek injunctive relief (Sections 19-2-104 and 19-2-115, UCA), and SIP 
Section I (Legal Authority), A.1.d., which provides 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 
prevention of significant deterioration requirements (Authority Utah 
Code

[[Page 52480]]

Section 19-2-108). EPA approved this SIP in the early 1980's and most 
recently on June 25, 2003 (68 FR 37744).
    The State also cites UAC rule R307-110-9. SIP Section VIII (PSD), 
which describes the program to prevent significant deterioration of 
areas of the state where the air is clean. EPA approved SIP Section 
VIII, PSD, on July 15, 2011 (76 FR 41712).
    b. EPA analysis: To generally meet the requirements of CAA section 
110(a)(2)(C), the state is required to have SIP-approved PSD, 
nonattainment NSR, and minor NSR permitting programs adequate to 
implement the 1997 and 2006 PM2.5 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).

PSD Requirements

    Utah has a SIP-approved PSD program that meets the general 
requirements of part C of the Act (51 FR 31125). To satisfy the 
particular requirements of section 110(a)(2)(C), states should have a 
PSD program that applies to all regulated NSR pollutants, including 
greenhouse gases (GHGs). See 40 CFR 51.166(b)(48) and (b)(49). The PSD 
program should reflect current requirements for these pollutants. In 
particular, for three pollutants--ozone, PM2.5, and GHGs--
there are additional regulatory requirements (set out in portions of 40 
CFR 51.166) that we considered in evaluating Utah's PSD program. In the 
rulemakings in which EPA revised the requirements in 40 CFR 51.166 for 
these pollutants, EPA also updated the federal PSD program at 40 CFR 
52.21 accordingly.
    Utah implements the PSD program by, for the most part, 
incorporating by reference the federal PSD program as it existed on a 
specific date. The State periodically updates the PSD program by 
revising the date of incorporation by reference and submitting the 
change as a SIP revision. As a result, the SIP revisions generally 
reflect changes to PSD requirements that EPA has promulgated prior to 
the revised date of incorporation by reference.
    In particular, on July 15, 2011 (75 FR 41712), we approved portions 
of a Utah SIP revision that revised the date of incorporation by 
reference of the federal PSD program to July 1, 2007. That revision 
addressed the PSD requirements of the Phase 2 Ozone Implementation Rule 
promulgated in 2005 (70 FR 71612). As a result, the approved Utah PSD 
program meets current requirements for ozone.
    With regard to GHGs, in the ``PSD SIP Narrowing Rule'' (75 FR 
82536, Dec. 30, 2012), EPA withdrew its previous approval of Utah's PSD 
program to the extent that it applied PSD permitting to 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. 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 Narrowing Rule issued 
on December 30, 2010 to satisfy the requirements of infrastructure 
element 110(a)(2)(C). Given EPA's basis for the PSD SIP Narrowing Rule 
and this clarification, the PSD program is adequate with respect to 
regulation of GHGs.
    For PM2.5, EPA has promulgated two relevant rules. The 
first, promulgated in 2008, addresses (among other things) treatment of 
PM2.5 precursors in PSD programs. The second, promulgated in 
2010, establishes (among other things) increments for PM2.5.
    On January 4, 2013, the U.S. Court of Appeals, in Natural Resources 
Defense Council v. EPA, 706 F.3d 428 (D.C. Cir. 2013), issued a 
judgment that remanded EPA's 2007 and 2008 rules implementing the 1997 
PM2.5 NAAQS. The Court ordered EPA to ``repromulgate these 
rules pursuant to Subpart 4 consistent with this opinion.'' Id. at 437. 
Subpart 4 of Part D, Title 1 of the CAA establishes additional 
provisions for particulate matter nonattainment areas.
    The 2008 implementation rule addressed by the court decision, 
``Implementation of New Source Review (NSR) Program for Particulate 
Matter Less Than 2.5 Micrometers (PM2.5),'' (73 FR 28321, 
May 16, 2008), promulgated New Source Review (NSR) requirements for 
implementation of PM2.5 in nonattainment areas 
(nonattainment NSR) and attainment/unclassifiable areas (PSD). As the 
requirements of Subpart 4 only pertain to nonattainment areas, EPA does 
not consider the portions of the 2008 Implementation rule that address 
requirements for PM2.5 attainment and unclassifiable areas 
to be affected by the Court's opinion. Moreover, EPA does not 
anticipate the need to revise any PSD requirements promulgated in the 
2008 Implementation rule in order to comply with the Court's decision. 
Accordingly, EPA's approval of Utah's infrastructure SIP as to elements 
(C) or (J) with respect to the PSD requirements promulgated by the 2008 
Implementation rule does not conflict with the Court's opinion.
    The Court's decision with respect to the nonattainment NSR 
requirements promulgated by the 2008 Implementation rule also does not 
affect EPA's action on the present infrastructure action. EPA 
interprets the Act to exclude nonattainment area requirements, 
including requirements associated with a nonattainment NSR program, 
from infrastructure SIP submissions due three years after adoption or 
revision of a NAAQS. Instead, these elements are typically referred to 
as nonattainment SIP or attainment plan elements, which would be due by 
the dates statutorily prescribed under subpart 2 through 5 under part 
D, extending as far as ten years following designations for some 
elements.
    The second PSD requirement for PM2.5 is contained in 
EPA's October 20, 2010 rule, ``Prevention of Significant Deterioration 
(PSD) for Particulate Matter Less Than 2.5 Micrometers 
(PM2.5)--Increments, Significant Impact Levels (SILs) and 
Significant Monitoring Concentration (SMC)'' (75 FR 64864). EPA regards 
adoption of the PM2.5 increments as a necessary requirement 
when assessing a PSD program for the purposes of element (C).
    As explained above, the PSD program as currently approved into the 
SIP incorporates by reference the federal PSD program as it existed on 
July 1, 2007, prior to EPA's promulgation of the 2008 PM2.5 
Implementation Rule and the 2010 PM2.5 Increment Rule. On 
March 14, 2012, the State of Utah submitted revisions to the PSD 
program that adopt by reference federal provisions of 40 CFR part 52, 
section 21, as they existed on July 1, 2011. As that date is after the 
effective date of the two rules, the submission incorporates the 
requirements of them. We propose to approve the necessary portions of 
the March 14, 2012 submission to reflect the 2008 PM2.5 
Implementation Rule and the 2010 PM2.5 Increment Rule; 
specifically 40 CFR part 52, section 21, paragraphs 
(b)(14)(i),(ii),(iii), (b)(15)(i),(ii), (b)(23)(i), (b)(50) and 
paragraph (c) as they existed on July 1, 2011. We are not proposing to 
act on any other portions of the March 14,

[[Page 52481]]

2012 submittal, including the incorporation by reference of significant 
impact levels (SILs) and significant monitoring concentrations (SMCs) 
for PM2.5.
    With the partial approval of the March 14, 2012 submittal, the Utah 
PSD program will meet current requirements for all regulated NSR 
pollutants. As a result, we also propose to approve the Utah 
infrastructure SIP for element (C) for the 1997 and 2006 
PM2.5 NAAQS with respect to PSD requirements.
    Finally, EPA proposes to correct, under section 110(k)(6) of the 
Act, a statement made regarding PSD programs in our July 22, 2011 
notice (76 FR 43898) finalizing approval of Utah's infrastructure SIP 
for the 1997 ozone NAAQS. In that notice, we responded to a comment 
stating that proposed changes to the Utah Administrative Code would, 
among other things, restrict the availability of judicial review of PSD 
permits in state courts. In our response, we stated, among other 
things, ``Although 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.'' The portion of our 
response stating that the Act makes no requirements regarding 
availability of judicial review for PSD permits was in error, (see, 
e.g., 61 FR 1880, 1882, Jan. 24, 1996; 77 FR 65305, 65306, Oct. 6, 
2012), and we propose to correct the error by striking that clause. 
This correction does not change the basis for our approval of the Utah 
infrastructure SIP for the 1997 ozone NAAQS, as we rejected the comment 
on other grounds. This correction also does not reopen our previous 
action to comment with the exception of our proposed deletion of the 
incorrect language.

Minor NSR

    The State has a SIP-approved minor NSR program, adopted under 
section 110(a)(2)(C) of the Act. 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 and 2006 PM2.5 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. Utah's minor 
NSR program, as approved into the SIP, covers the construction and 
modification of stationary sources of ``air pollution,'' a defined term 
in the Utah SIP that covers a broad range of emissions, including 
PM2.5 and its precursors.\2\ 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.
---------------------------------------------------------------------------

    \2\ On June 12, 2013 (78 FR 35181), EPA proposed to partially 
approve and partially disapprove certain revisions to Utah's minor 
NSR program. The minor NSR program as amended by those revisions we 
proposed to approve would, if we complete our proposal, also satisfy 
the general requirement in 110(a)(2)(C) described above.
---------------------------------------------------------------------------

    4. Interstate Transport: Section 110(a)(2)(D)(i) is subdivided into 
four ``prongs,'' two under 110(a)(2)(D)(i)(I) and two under 
110(a)(2)(D)(i)(II). The two prongs under 110(a)(2)(D)(i)(I) are (prong 
1) contribute significantly to nonattainment in any other state with 
respect to any such national primary or secondary NAAQS, and (prong 2) 
interfere with maintenance by any other state with respect to the same 
NAAQS. The two prongs under 110(a)(2)(D)(i)(II) are (prong 3) 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 (prong 4) to protect visibility. We are 
not acting on Utah's submissions with respect to the requirements of 
section 110(a)(2)(D)(i)(I) (prongs 1 and 2) in this proposed 
rulemaking. We are also not acting on the submissions with respect to 
the requirements of prong 4 (visibility protection) in this action.
    a. Utah's response to this requirement: Concerning PSD--EPA 
believes this requirement is satisfied for PM2.5 if a 
state's SIP includes preconstruction review programs for major sources 
that satisfy the requirements of both Nonattainment NSR and PSD (40 CFR 
51.165(b)(1) and 51.166, respectively). All states are currently 
required to have some form of preconstruction permitting program for 
PM2.5, and as per the guidance, it is not necessary to make 
any rule revisions specifically for the purpose of Section 110 unless 
the area has outstanding program deficiencies.
    Utah is currently operating under the PM10 surrogate 
policy for the PSD program, as outlined in the 1997 EPA memorandum 
entitled ``Interim Implementation of New Source Review Requirements for 
PM2.5.'' Utah intends to incorporate PM2.5 into 
the PSD program by May 2011, as required by the May 16, 2008, 
PM2.5 Implementation Rule for PM2.5 NSR. We 
anticipate that EPA will have established certain requirements, such as 
PM2.5 increments and Significant Impact Levels, and stack 
testing requirements that need to be in place before PM2.5 
can be adequately addressed in the PSD program. Utah is currently 
operating under the provisions of Appendix S for PM2.5 
nonattainment areas.
    b. EPA Analysis: As noted by Utah in their submission for the 2006 
PM2.5 NAAQS, we previously approved Utah's submission for 
all four portions of CAA section 110(a)(2)(D)(i), including the PSD and 
visibility portions, for the 1997 PM2.5 NAAQS. (73 FR 
16543). In this action, we are only assessing Utah's submission for the 
PSD portion of 110(a)(2)(D)(i) for the 2006 PM2.5 NAAQS.
    With regard to the PSD portion of section 110(a)(2)(D)(i)(II), this 
requirement may be met by the state's confirmation in an infrastructure 
SIP submission that new major sources and major modifications in the 
state are subject to a PSD program meeting all the current structural 
requirements of part C of title I of the CAA or (if the state contains 
a nonattainment area for the relevant pollutant) to a non-attainment 
NSR (NNSR) program that implements the 2006 PM2.5 NAAQS. As 
discussed in more detail in section 110(a)(2)(C), with our concurrent 
approval of certain revisions to Utah's PSD program, Utah's SIP will 
contain a PSD program that reflects all structural PSD requirements. 
Additionally, as stated in its

[[Page 52482]]

submission, Utah is operating under the provisions of Appendix S in its 
2006 PM2.5 nonattainment areas. The State therefore meets 
the structural NNSR requirements for this pollutant in the interim 
period between designation and final EPA approval of a nonattainment 
NSR program update. Accordingly, in this action EPA is proposing to 
approve the infrastructure SIP submission as meeting the requirements 
of prong 3 of CAA section 110(a)(2)(D)(i) for the 2006 PM2.5 
NAAQS.
    5. Adequate resources and authority: 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)'' 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: The State's submissions for 
the 1997 and 2006 PM2.5 infrastructure requirements cite SIP 
Section V (Resources) which 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).
    Section 41-6a-1642 provides counties the authority to run their own 
emissions inspection and maintenance program, and Subsection 41-6a-
1642(2)(b)(i) requires the counties emissions inspection and 
maintenance program to 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 outlines the specific requirements 
of the automotive inspection and maintenance program.
    b. EPA Analysis: Chapter 2 of Title 19 of the Utah Code gives the 
UDAQ and Air Quality Board (AQB) adequate authority to carry out the 
SIP. The State receives sections 103 and 105 grant funds through its 
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)(i) and 
(E)(iii) for the 1997 and 2006 PM2.5 NAAQS.
    6. State boards: Section 110(a)(2)(E)(ii) requires that the state 
comply with the requirements respecting state boards under CAA section 
128.
    a. Utah's response to this requirement: The State's submissions for 
the 1997 and 2006 PM2.5 infrastructure requirements cite UAC 
rules R307-110-2 (approved by EPA in the early 1980's and most recently 
on June 25, 2003 at 68 FR 37744), R307-110-31 (approved by EPA on 
November 2, 2005 at 70 FR 66264), R307-32 (approved by EPA on July 17, 
1997 at 62 FR 38213), R307-33 (approved by EPA on August 1, 2005 at 70 
FR 44055), R307-34 (approved by EPA on November 2, 2005 at 70 FR 
66264), and R307-35 (approved by EPA on September 14, 2005 at 70 FR 
54267).
    SIP Section I (Legal Authority), A.1.g, recognizes the requirement 
that the State comply with provisions of the CAA (Section 128) 
respecting State Boards (Sections 19-2-104 UCA).
    b. EPA Analysis: We propose to disapprove Utah's submissions for 
element 110(a)(2)(E)(ii) because the submissions do not adequately 
address the requirements of CAA section 128. To explain our proposed 
disapproval, we must discuss the state law governing the composition 
and authority of the Utah AQB. Under sections 19-1-301 and 19-2-104 of 
the Utah Code as they existed at the time of Utah's infrastructure 
submissions, the AQB had the authority to review decisions proposed by 
an administrative law judge (ALJ) on administrative appeals of permits 
and enforcement orders issued by the Utah DAQ. In other words, at that 
time the AQB was a ``board or body which approves permits or 
enforcement orders'' under the CAA and so fell within the scope of CAA 
section 128.\3\
---------------------------------------------------------------------------

    \3\ See, for example, 78 FR 32613 (May 31, 2013), for a 
discussion of the phrase ``board or body which approves permits or 
enforcement orders.''
---------------------------------------------------------------------------

    Correspondingly, as described in Utah's infrastructure submissions, 
Utah SIP Section I referenced Utah Code section 19-2-104, which sets 
out the powers of the AQB, as addressing the requirements of CAA 
section 128. However, Utah Code section 19-2-103, which sets out the 
composition of the AQB, more directly addressed those requirements. In 
particular, section 19-2-103 required a majority of members to not 
derive a significant portion of their income from persons subject to 
permits or enforcement orders under the Act, and it specified a diverse 
range of interests that particular members must represent. In addition, 
section 19-2-103 required members of the AQB to adequately disclose 
potential conflicts of interest.
    However, Utah's infrastructure submissions no longer reflect state 
law. In two bills enacted in 2012, the Utah Legislature amended Utah 
Code sections 19-1-301, 19-2-103, and 19-2-104 in several significant 
ways.\4\ First, the Legislature added section 19-1-301.5, which governs 
administrative appeals of permits issued by UDAQ. Section 19-1-301 
continues to govern adjudicative proceedings regarding other UDAQ 
actions. Second, in both sections 19-1-301 and 19-1-301.5, the 
Legislature transferred the authority of the AQB over proposed ALJ 
decisions to the Executive Director of DEQ. Correspondingly, the 
Legislature amended section 19-2-104 to reflect that the AQB no longer 
retained that authority. However, the AQB appears to still retain some 
enforcement authorities under Utah Code sections 19-2-104(3)(a)(ii) and 
(b)(i). In addition, the Legislature modified the requirements for 
composition of the AQB and removed the provision requiring members of 
the AQB to disclose potential conflicts of interest.
---------------------------------------------------------------------------

    \4\ Enrolled copies of Utah Senate Bills 11 and 21 from the 2012 
General Session, which show the changes in state law in strikeout/
underline format, are provided in the docket for this action.
---------------------------------------------------------------------------

    With these changes in state law, Utah's infrastructure SIP 
submissions do not adequately address how or whether CAA sections 
110(a)(2)(E)(ii) and 128 are satisfied by the State's SIP. First, to 
the extent that, after the changes in state law, the AQB remains a 
board that approves enforcement orders within the meaning of CAA 
section 128, the SIP should contain provisions addressing the 
requirements of section 128 as applied to the AQB, including the 
requirement of section 128(a)(2) that members of the AQB adequately 
disclose potential conflicts of interest. Even if the requirements of 
section 128 were previously addressed to some extent by Utah Code 
section 19-2-103,\5\ the current version of section 19-2-103 at a 
minimum no longer addresses disclosure of potential conflicts of 
interest by the AQB. Second, to the extent that, after the changes in 
state law, the Executive Director of DEQ now approves permits within 
the meaning of CAA section 128, the Executive Director (and/or the 
Executive Director's delegate) is subject to the disclosure 
requirements of section

[[Page 52483]]

128(a)(2). See, for example, 78 FR 32613 (May 31, 2013). Neither the 
previous version nor the current version of Utah Code section 19-2-103 
addresses disclosure of potential conflicts by the Executive Director.
---------------------------------------------------------------------------

    \5\ EPA also notes that even if the previous version of Utah 
Code section 19-2-103 adequately addressed the requirements of 
section 128 as applied to the AQB, Utah SIP section I does not 
explicitly incorporate Utah Code section 19-2-103. Instead, it 
references Utah Code section 19-2-104, which does not address the 
requirements of CAA section 128. CAA Section 128 must be satisfied 
through federally enforceable provisions that are approved into the 
SIP. See, for example, 78 FR 32613 (May 31, 2013).
---------------------------------------------------------------------------

    As Utah's infrastructure submissions do not address the 
requirements of CAA sections 110(a)(2)(E)(ii) and 128 as they apply 
under current state law, we propose to disapprove Utah's submissions 
for the requirements of CAA section 110(a)(2)(E)(ii) for the 1997 and 
2006 PM2.5 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: The State's submissions for 
the 1997 and 2006 PM2.5 infrastructure requirements cite 
Section I (Legal Authority).A.1.f., codified at R307-110-2 (approved by 
EPA in the early 1980's and most recently on June 25, 2003 at 68 FR 
37744) requiring owners or operators of stationary sources to install, 
maintain, and use emission monitoring devices; and to make periodic 
reports to the State 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 (Sections 19-2-104, UCA).
    The State's submissions also cite UAC rule R307-110-4 (approved by 
EPA in the early 1980's and most recently on June 25, 2003 at 68 FR 
37744) SIP Section III (Source Surveillance) which includes inventory 
requirements, stack testing, and plant inspections (Sections 19-2-107 
and 19-2-108, UCA, allow inspection of air pollution sources).
    b. EPA Analysis: Utah's SIP meets the requirements of CAA section 
110(a)(2)(F) for the 1997 and 2006 PM2.5 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: The State's submissions for 
the 1997 and 2006 PM2.5 infrastructure requirements cite UAC 
rules R307-110-2 (approved by EPA in the early 1980's and most recently 
on June 25, 2003 at 68 FR 37744) SIP Section I (Legal Authority). 
A.1.c., that provides authority to abate pollutant emissions on an 
emergency basis to prevent substantial endangerment to the health of 
persons (Section 19-2-112, UCA); and R307-110-8 (approved by EPA in the 
early 1980's and most recently on June 25, 2003 at 68 FR 37744) SIP 
Section VII (Prevention of Air Pollution Emergency Episodes) (Section 
19-2-112, UCA). A February 12, 2007, OAQPS Issue Paper indicated EPA 
will be issuing a significant harm level rule for PM2.5. 
Utah will address the requirements of 110(a)(2)(G) after EPA 
promulgates this rule.
    b. EPA analysis: Section 19-2-112 of the UCA, cited by Utah SIP 
Section I, 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.
    EPA's September 25, 2009 guidance suggested that states with areas 
that have had a PM2.5 exceedance greater than 140.4 [mu]g/
m\3\ should develop and submit an emergency episode plan. If no such 
concentration was recorded in the last three years, the guidance 
suggested that the State can rely on its general emergency authorities. 
In this rulemaking, we view these suggestions as still appropriate in 
assessing Utah's SIP for this element. Utah has not had such a recorded 
PM2.5 level and thus an emergency episode plan for 
PM2.5 is not necessary. The SIP therefore meets the 
requirements of CAA section 110(a)(2)(G) for the 1997 and 2006 
PM2.5 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: The State's submissions for 
the 1997 and 2006 PM2.5 infrastructure requirements cite SIP 
Section I (Legal Authority).A.1.a, codified at R307-110-2, which 
identifies the statutory provisions that allow the UDAQ 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 
at 68 FR 37744.
    b. EPA analysis: Utah SIP Section I cites section 19-2-104 of the 
Utah Code. Section 19-2-104 gives the AQB sufficient authority to meet 
the requirements of CAA section 110(a)(2)(H).
    10. 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: The State's submissions for 
the 1997 and 2006 PM2.5 infrastructure requirements of 
section 121 relating to consultation cite UAC rules R307-110-2 
(approved by EPA in the early 1980's and most recently on June 25, 2003 
at 68 FR 37744) SIP Section I (Legal Authority).A.2, which adopts 
requirements for transportation consultation (Section 174, CAA); R307-
110-7 (approved by EPA in the early 1980's and most recently on June 
25, 2003 at 68 FR 37744) SIP Section VI (Intergovernmental Cooperation) 
which provides a brief listing of federal, state, and local agencies 
involved in protecting air quality in Utah; and R307-110-20 SIP Section 
XII (Transportation Conformity Consultation) which establishes the 
consultation procedures on transportation conformity issues when 
preparing state plans. EPA approved SIP Section XII, Involvement, but 
it has been superseded by SIP Section XII Transportation Conformity 
Consultation, which was submitted to EPA on June 26, 2007 but EPA has 
not approved this SIP.
    The State's submissions for the 1997 and 2006 PM2.5 
infrastructure requirements of section 127 relating to public 
notification cite UAC rule R307-110-24 (approved by EPA in the early 
1980's and most recently on June 25, 2003 at 68 FR 37744) SIP Section 
XVI (Public Notification) which adopts the requirements to notify the 
public when the NAAQS have been exceeded as per section 127.
    The State's submissions for the 1997 and 2006 PM2.5 
infrastructure

[[Page 52484]]

requirements of part C relating to the prevention of significant 
deterioration of air quality and visibility protection cite UAC rules 
R307-110-9 SIP Section VIII (PSD) which describes the program to 
prevent significant deterioration of areas of the state where the air 
is clean (EPA approved SIP Section VIII, PSD, but it has been updated 
and superseded by a new SIP Section VIII, PSD, which was submitted to 
EPA on September 15, 2006); and R307-110-25 (approved by EPA in April 
1997 and most recently on June 25, 2003 at 68 FR 37744) SIP Section 
XVII (Visibility Protection) which 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).
    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; these provisions are 
located in R307-405-2 of the UAC. EPA has further evaluated Utah's SIP-
approved PSD program in this proposed action under IV.3 of CAA section 
110(a)(2)(C). There, we propose approval with respect to the PSD 
requirements of element (C); we do likewise here with respect to the 
PSD requirements of element (J).
    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. The Utah SIP 
meets the requirements of CAA section 110(a)(2)(J) for the 1997 and 
2006 PM2.5 NAAQS.
    11. 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: The State's submissions for 
the 1997 and 2006 PM2.5 infrastructure requirements cite SIP 
Section II (Review of New and Modified Air Pollution Sources) codified 
at R307-110-3 (approved by EPA in the early 1980's and most recently on 
June 25, 2003 at 68 FR 37744) which provides that new or modified 
sources of air pollution must submit plans to the UDAQ and receive an 
Approval Order before operating (Section 19-2-104, UCA).
    b. EPA Analysis: Utah's SIP meets the requirements of CAA section 
110(a)(2)(K) for the 1997 and 2006 PM2.5 NAAQS. In 
particular, Utah's PSD program incorporates by reference the federal 
program at 40 CFR 52.21, including the provision at Sec.  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 Sec.  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.
    12. 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: The State's submissions for 
the 1997 and 2006 PM2.5 infrastructure requirements cite SIP 
Section I (Legal Authority). A.1.h., codified at R307-110-2 (approved 
by EPA in the early 1980's and most recently on June 25, 2003 at 68 FR 
37744) which authorizes a fee to major sources to cover permit and 
enforcement expenses.
    b. EPA Analysis: Utah's SIP meets the requirements of CAA section 
110(a)(2)(L) for the 1997 and 2006 PM2.5 NAAQS. Final 
approval of Utah's title V operating permit program was given by EPA 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. As mentioned by Utah in its submissions, the State is also 
authorized to collect fees from major stationary sources to cover 
permit and enforcement expenses.
    13. 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: The State's submissions for 
the 1997 and 2006 PM2.5 infrastructure requirements cite SIP 
Section VI (Intergovernmental Cooperation), codified at R307-110-7 
(approved by EPA in the early 1980s and most recently on June 25, 2003 
at 68 FR 37744), which lists federal, state, and local agencies 
involved in protecting air quality in Utah; and SIP Section XII 
(Transportation Conformity Consultation), codified at R307-110-20, 
which establishes the consultation procedures on transportation 
conformity issues when preparing state plans. EPA approved SIP Section 
XII, Involvement, but it has been superseded by SIP Section XII, 
Transportation Conformity Consultation, which was submitted to EPA on 
June 26, 2007, but has not been approved by EPA.
    b. EPA Analysis: Utah's submittal meets the requirements of CAA 
section 110(a)(2)(M) for the 1997 and 2006 PM2.5 NAAQS.

VI. What action is EPA taking?

    In this action, EPA is proposing to approve the following CAA 
section 110(a)(2) infrastructure elements for the 1997 and 2006 
PM2.5 NAAQS: (A), (B), (C) with respect to minor NSR and PSD 
requirements, (D)(i)(II) with respect to PSD requirements, (E)(i), 
(E)(iii), (F), (G), (H), (J), (K), (L), and (M). EPA proposes to 
disapprove the section 110(a)(2)(E)(ii) infrastructure element for the 
1997 and 2006 PM2.5 NAAQS. We propose to approve the 
following portions of the State's March 14, 2012 submission to address 
the 2008 PM2.5 NSR Implementation Rule and the 2010 
PM2.5 Increment Rule; specifically we propose to approve the 
adoption of the text of 40 CFR 52.21, paragraphs (b)(14)(i),(ii),(iii); 
(b)(15)(i),(ii); (b)(23)(i); (b)(50) and paragraph (c) as they existed 
on July 1, 2011. Finally, EPA is taking no action on infrastructure 
elements (D)(i)(I), interstate transport of pollutants which contribute

[[Page 52485]]

significantly to nonattainment in, or interfere with maintenance by, 
any other state, and (D)(i)(II), with respect to visibility 
requirements for the 2006 PM2.5 NAAQS as EPA is acting 
separately on these elements.

VII. 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 (Public Law 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, Greenhouse gases, Incorporation by 
reference, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting 
and recordkeeping requirements, Sulfur oxides, Volatile organic 
compounds, Incorporation by reference.

    Dated: August 8, 2013.
Shaun L. McGrath,
Regional Administrator, Region 8.
[FR Doc. 2013-20662 Filed 8-22-13; 8:45 am]
BILLING CODE 6560-50-P
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