41712 Federal Register / Vol. 76, No. 136 / Friday, July 15, 2011 / Rules and Regulations 

EPA-APPROVED NEW YORK NONREGULATORY AND QUASI-REGULATORY PROVISIONS—Continued 

Action/SIP element Applicable geographic or nonattainment 

area New York submittal date 

EPA 

approval 

date 

Explanation 

Revised commitment to perform a midcourse review for ozone.New York portion of the New York-Northern New Jersey-Long Island 1-hour 

ozone nonattainment area.

1/29/03 9/13/05, 70 

FR 53944 

New York reasonably available control 

technology (RACT) analysis for ozone.

Statewide and to the New York portion of 

the New York-Northern New JerseyLong Island, NY–NJ–CT and the 

Poughkeepsie 8-hour ozone moderate 

nonattainment areas.

9/1/06, supplemented on 

2/8/08 and 9/16/08 

7/23/10, 75 

FR 43069 

Reasonably available control measure 

(RACM) analysis for ozone.

New York portion of the New York-Northern New Jersey-Long Island, NY–NJ– 

CT 8-hour ozone moderate nonattainment area.

2/8/08 7/23/10, 75 

FR 43069 

§ 52.1679 [Reserved] 

■ 5. Section 52.1679 is removed and 

reserved. 

[FR Doc. 2011–17782 Filed 7–14–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2007–0927; FRL–9428–9] 

Approval, Disapproval, and 

Promulgation of Air Quality 

Implementation Plans; Utah; Revisions 

to New Source Review Rules 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is partially approving 

and partially disapproving revisions to 

the State of Utah’s Clean Air Act (CAA) 

State Implementation Plan (SIP). Utah 

has a federally-approved Prevention of 

Significant Deterioration (PSD) 

preconstruction permit program for new 

and modified sources impacting 

attainment areas in the State. Utah 

requested approval of its revised rules to 

implement the non-vacated provisions 

of EPA’s New Source Review (NSR) 

Reform regulations. EPA proposed 

approval of these rules on January 7, 

2009 and received adverse comments. In 

this action, EPA responds to these 

comments and announces EPA’s final 

rulemaking action. This action affects 

major stationary sources in Utah that are 

subject to or potentially subject to the 

PSD preconstruction permit program. 

This action is being taken under section 

110 of the CAA. 

DATES: This action is effective on 

August 15, 2011. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R08–OAR– 

2007–0927. All documents in the docket 

are listed on the http:// 

www.regulations.gov Web site. Although 

listed in the index, some information 

may not be publicly available, i.e., 

Confidential Business Information 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 

EPA Region 8, Air Quality Planning 

Unit (8P–AR), 1595 Wynkoop Street, 

Denver, Colorado 80202. EPA requests 

that if at all possible, you contact the 

person listed in the FOR FURTHER

INFORMATION CONTACT section to 

schedule your inspection. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 to 4:30, 

excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: Jody 

Ostendorf, Air Program, Mailcode 8P– 

AR, Environmental Protection Agency, 

Region 8, 1595 Wynkoop Street, Denver, 

Colorado 80202–1129, (303) 312–7814, 

or ostendorf.jody@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document wherever 

‘‘we’’, ‘‘us’’ or ‘‘our’’ are used, we mean 

EPA. Information is organized as 

follows: 

Table of Contents 

I. Background for This Action 

A. What revisions to the Utah SIP does this 

action address? 

B. What comments did we receive on our 

proposal for these revisions? 

1. Section 110(l) 

a. Summary of Comments Regarding 

Section 110(l) 

b. EPA Response to Section 110(l)-Related 

Comments 

2. Section 193 

a. Summary of Comments Regarding 

Section 193 

b. EPA Response to Section 193—Related 

Comments 

II. Final Action 

A. Rules To Approve Into the Utah SIP 

B. Rules To Disapprove and Therefore Not 

Incorporate Into the Utah SIP 

C. Scope of Action 

III. Statutory and Executive Order Reviews 

I. Background for This Action 

Title I of the CAA, as amended by 

Congress in 1990, specifies the general 

requirements for states to submit SIPs to 

attain and/or maintain the National 

Ambient Air Quality Standards 

(NAAQS) and EPA’s actions regarding 

approval of those SIPs. SIPs must 

include, among other requirements, an 

NSR preconstruction permit program, 

which, for attainment areas, meets 

federal PSD requirements. 

On February 12, 1982, EPA approved 

into the Utah SIP PSD permitting 

regulations. On December 31, 2002, EPA 

published revisions to the federal PSD 

and non-attainment NSR regulations in 

40 CFR parts 51 and 52 (67 FR 80186). 

These revisions are commonly referred 

to as the ‘‘NSR Reform’’ regulations and 

became effective nationally in areas not 

covered by a SIP on March 3, 2003. For 

information on subsequent court 

decisions and regulatory revisions to 

these rules, see http://www.epa.gov/nsr. 

On September 15, 2006, October 1, 

2007, and March 7, 2008, the Utah 

Department of Environmental Quality 

(DEQ) submitted numerous rule changes 

and requested that the Utah SIP be 

revised to reflect those changes. These 

changes include revisions to Utah’s Rule 

R307–405 (‘‘Permits: Major Sources in 

Attainment or Unclassified Areas 

(PSD)’’) and to Utah’s Rule R307–110– 

9 (‘‘Section VIII, Prevention of 

Significant Deterioration of the Utah Air 

Quality Rules’’). 

On January 7, 2009 EPA proposed to 

partially approve and partially 

disapprove the revisions submitted by 

the Utah DEQ. 74 FR 667 (January 7, 

mstockstill on DSK4VPTVN1PROD with RULES

Federal Register / Vol. 76, No. 136 / Friday, July 15, 2011 / Rules and Regulations 41713 

2009). This final action will update the 

federally approved SIP to reflect those 

changes made by Utah DEQ that EPA 

has reviewed and deemed approvable 

into the Utah SIP (Code of Federal 

Regulations, Title 40, part 52, subpart 

TT). 

A. What revisions to the Utah SIP does 

this action address? 

We are partially approving revisions 

to R307–405 (‘‘Permits: Major Sources 

in Attainment or Unclassified Areas 

(PSD)’’) and approving revisions to 

R307–110–9 (‘‘Section VIII, Prevention 

of Significant Deterioration of the Utah 

Air Quality Rules’’). EPA is 

disapproving R307–405–3.(3)(a)(i) 

because it defines ‘‘Major Source 

Baseline Date’’ in a manner inconsistent 

with the federal definition found at 40 

CFR 52.21(b)(14). In all other respects 

we are approving the State’s March 7, 

2008 submitted revisions to R307–405, 

and the State’s September 15, 2006 

submitted revisions to R307–110–9. 

More information about each SIP 

submittal, including a summary of the 

submittal and relevant background 

information and analysis supporting our 

action, can be found in our proposed 

rule. 74 FR 667 (January 7, 2009). 

B. What comments did we receive on 

our proposal for these revisions? 

The Natural Resources Defense 

Council (NRDC) commented on EPA’s 

proposal to approve changes to Utah’s 

permitting programs for major stationary 

sources, specifically the PSD permit 

program and the nonattainment area 

(Part D) permit program that incorporate 

EPA’s ‘‘2002 NSR Reform Rules.’’ NRDC 

primarily commented on the 

requirements of the Federal NSR rules, 

not Utah’s application of the Federal 

requirements in its own rules. Notably, 

NRDC participated in litigation 

challenging EPA’s promulgation of the 

2002 NSR Reform Rules, where similar 

arguments were made by NRDC and 

rejected by the DC Circuit Court. See 

New York v. EPA, 413 F.3d 3 (D.C. Cir. 

2005). Many of NRDC’s comments in 

this action, including exhibits, do not 

raise any specific concerns with Utah’s 

rules, but rather, reiterate arguments 

that NRDC made to the court regarding 

EPA’s 2002 NSR Reform Rules and the 

requirements of Sections 110(l) and 193 

of the CAA. 

Although NRDC’s comments cite nine 

sections of the Utah rules, the comments 

make no attempt to specifically explain 

or demonstrate how those identified 

provisions are inconsistent with either 

Section 110(l) or Section 193 of the 

CAA. Furthermore, NRDC provides no 

evidence supporting its allegations that 

approval of the specific provisions 

would result in a violation of the CAA. 

The NRDC comments include a list of 

31 exhibits which the comment letter 

incorporates by reference into the 

comments. The 31 exhibits appear to 

stem from the New York v. EPA 

litigation, and were either submitted to 

that Court for review, or are relevant to 

that adjudication. In any event, none of 

the 31 exhibits provides EPA with any 

comments specific to the Utah rules at 

issue. NRDC does note that the New 

York v. EPA decision addressed EPA’s 

regulations, rather than state regulations 

submitted under section 110 of the 

CAA, and that the Court of Appeals had 

no occasion to decide whether EPA 

could approve a particular state’s 

implementation of the NSR Reform 

Rules consistent with Sections 110(l) 

and 193 of the CAA. EPA’s responses to 

NRDC’s comments regarding Sections 

110(l) and 193 are below. 

1. Section 110(l) 

a. Summary of Comments Regarding 

Section 110(l): 

NRDC asserts that ‘‘[t]he 2002 NSR 

Reform Rule provisions that were not 

vacated by the DC Circuit in New York 

v. EPA allow previously-prohibited 

emissions increases to occur.’’ As a 

result, NRDC states that ‘‘it cannot be 

said of Utah’s plan that it ‘will cause no 

degradation of air quality’’’ and ‘‘Utah 

has made no ‘demonstration that the 

emissions that are allowed by its revised 

rule but are prohibited by the current 

SIP would not interfere with attainment 

or other applicable requirements.’’’ 

Further, NRDC states that ‘‘EPA has 

never made, or even proposed to make, 

a finding that revising Utah’s permit 

provisions so that they track the nonvacated provisions of the 2002 rule’’ 

would be consistent with Section 110(l) 

of the CAA. 

b. EPA Response to Section 110(l)- 

Related Comments: 

Section 110(l) of the CAA states that 

‘‘[t]he Administrator shall not approve a 

revision of a plan if the revision would 

interfere with any applicable 

requirement concerning attainment and 

reasonable further progress or any other 

applicable requirement of this chapter.’’ 

42 U.S.C. 7410(l). EPA does not 

interpret section 110(l) to require a full 

attainment or maintenance 

demonstration before any changes to a 

SIP may be approved. Generally, a SIP 

revision may be approved under section 

110(l) if EPA finds it will at least 

preserve status quo air quality. See 

Kentucky Resources Council, Inc. v. 

EPA, 467 F.3d 986 (6th Cir. 2006); 

GHASP v. EPA, No. 06–61030 (5th Cir. 

Aug. 13, 2008); see also, e.g., 70 FR 53 

(Jan. 3, 2005), 70 FR 28429 (May 18, 

2005) (proposed and final rules, upheld 

in Kentucky Resources, which discuss 

EPA’s interpretation of section 110(l). 

EPA has determined that Utah’s SIP 

revision will not ‘‘interfere with any 

applicable requirement concerning 

attainment and reasonable further 

progress * * * or any other applicable 

requirement of [the CAA]’’ in violation 

of Section 110(l) of the CAA because it 

will result in neutral or beneficial 

effects on air quality. EPA’s conclusion 

rests on two major analyses: (1) the 

national-scale analysis that EPA 

conducted in support of the 2002 NSR 

Reform Rules, and (2) the state-specific 

analysis that Utah DEQ conducted in 

support of its recent regulatory 

revisions. 

First, EPA’s national analysis in 

support of the 2002 NSR Reform Rules 

indicates that the non-vacated 

provisions of the NSR Reform Rules will 

have a neutral or beneficial impact. The 

three significant changes in the 2002 

NSR Reform Rules that were upheld by 

the court were (1) Plantwide 

applicability limits (PALs), (2) the 2-in10 baseline, and (3) the actual-toprojected actual emission test. EPA’s 

Supplemental Environmental Analysis 

of the Impact of the 2002 Final NSR 

Improvement Rules (November 21, 

2002) (Supplemental Analysis) 

discussed each of these three changes 

individually, and addresses some of the 

issues raised by NRDC. 

With regard to PALs, the 

Supplemental Analysis explains, ‘‘EPA 

expects that the adoption of PAL 

provisions will result in a net 

environmental benefit. Our experience 

to date is that the emissions caps found 

in PAL-type permits result in real 

emissions reductions, as well as other 

benefits.’’ Supplemental Analysis at 6. 

EPA further explained that: 

Although it is impossible to predict how 

many and which sources will take PALs, and 

what actual reductions those sources will 

achieve for what pollutants, we believe that, 

on a nationwide basis, PALs are certain to 

lead to tens of thousands of tons of 

reductions of VOC from source categories 

where frequent operational changes are 

made, where these changes are time 

sensitive, and where there are opportunities 

for economical air pollution control 

measures. These reductions occur because of 

the incentives that the PAL creates to control 

existing and new units in order to provide 

room under the cap to make necessary 

operational changes over the life of the PAL. 

Supplemental Analysis at 7. The 

Supplemental Analysis, and particularly 

Appendix B, provides additional details 

regarding EPA’s analysis of PALs and 

mstockstill on DSK4VPTVN1PROD with RULES

41714 Federal Register / Vol. 76, No. 136 / Friday, July 15, 2011 / Rules and Regulations 

1 In reviewing EPA’s approval of a Wisconsin SIP 

amendment that adopted of the 2002 NSR Reform 

rules, a Federal appeals court recently held that 

EPA could rely on the Supplemental Analysis in 

support of its approval. See NRDC v. Jackson, Nos. 

09–1405 & 10–2123 (7th Cir., Jun. 16, 2011), 2011 

US App LEXIS 12116. 

2The federally approved Utah SIP incorporates 

by reference ‘‘Utah Air Conservation Regulations, 

R307–1–3.1.8 * * * effective August 16, 1993.’’ 

40 CFR 52.2320(c)(28)(i)(B). That regulation 

provides that ‘‘[t]he [Utah DEQ] shall issue an 

approval order if [it] determines * * * that * * * 

[t]he degree of pollution control for emissions, to 

include fugitive emissions and fugitive dust, is at 

least best available control technology except as 

otherwise provided in these regulations.’’ Utah has 

since renumbered this regulation to Utah 

Administrative Code R307–401–8 but has not 

changed the substance of the quoted requirement. 

anticipated associated emissions 

decreases. 

With regard to the 2-in-10 baseline, 

EPA concluded that ‘‘the environmental 

impact from the change in baseline EPA 

is now finalizing will not result in any 

significant change in benefits derived 

from the NSR program.’’ Supplemental 

Analysis at 13. This is mainly because 

‘‘the number of sources receiving 

different baselines likely represents a 

very small fraction of the overall NSR 

permit universe, excludes new sources 

and coal fired power plants, and 

because the baseline may shift in either 

direction, we conclude that any overall 

consequences would be negligible.’’ 

Supplemental Analysis at 14. 

Additional information regarding the 2- 

in-10 baseline changes is available in 

the Supplemental Analysis, Appendix 

F. 

With regard to the actual-to-projected 

actual test, EPA concluded, ‘‘We believe 

that the environmental impacts of the 

switch to the actual-to-projected actual 

test are likely to be environmentally 

beneficial. However, as with the change 

to the baseline, we believe the vast 

majority of sources, including new 

sources, new units, electric utility steam 

generating units, and units that actually 

increase emissions as a result of a 

change, will be unaffected by this 

change. Thus, the overall impacts of the 

NSR changes are likely to be 

environmentally beneficial, but only to 

a small extent.’’ Supplemental Analysis 

at 14 (see also Supplemental Analysis 

Appendix G). EPA has no reason to 

believe that the environmental impacts 

will be substantially different from 

those discussed in the Supplemental 

Analysis for the 2002 NSR Reform 

Rules.1

As NRDC acknowledges, the Utah 

PSD rules track the Federal 2002 NSR 

Reform Rules. Overall, as summarized 

above, EPA expects that changes in air 

quality as a result of implementing 

Utah’s PSD rules will be consistent with 

EPA’s position on the Federal 2002 NSR 

Reform Rules—that there will be 

somewhere between neutral and 

providing modest contribution to 

reasonable further progress when the 

2002 NSR Reform Rules are compared to 

the pre-reform provisions. EPA’s 

analysis for the environmental impacts 

of these three components of the 2002 

NSR Reform Rules is informative of how 

Utah’s adoption of NSR Reform (based 

on the Federal rules) is expected to 

affect emissions and air quality. EPA 

has no reason to believe that the 

environmental impacts in Utah will be 

substantially different from the 

anticipated nationwide effects discussed 

in the Supplemental Analysis for the 

2002 NSR Reform Rules. 

Second, Utah’s own analysis of the air 

quality impacts of its rules supports 

EPA’s conclusion that approval of 

Utah’s SIP revision will not ‘‘interfere 

with any applicable requirement 

concerning attainment and reasonable 

further progress * * * or any other 

applicable requirement of [the CAA]’’ in 

violation of Section 110(l) of the CAA. 

As discussed above, NRDC cites seven 

general sections of Utah’s rules as 

provisions the approval of which would 

violate Section 110(l). Without further 

specificity, however, it is not clear why 

or how NRDC believes approval of these 

provisions would violate Section 110(l). 

Moreover, NRDC has provided no 

information or data that indicates that 

EPA’s analysis and conclusions 

regarding the impact of the 2002 NSR 

Reform Rules, in the Supplemental 

Analysis, are not applicable to Utah’s 

rules, which mirror the Federal rules. 

Utah has, however, provided such an 

analysis. Utah DEQ evaluated the air 

quality impact of the NSR Reform 

provisions when the State adopted the 

rule in 2006. In response to comments 

that the NSR Reform rule will allow 

many more modifications at existing 

major sources than the current NSR 

rules, the State noted that major source 

permitting requirements in attainment 

areas (the PSD permitting program) are 

only a portion of Utah’s overall 

permitting requirements and the effect 

of the NSR Reform provisions must be 

viewed in the context of the entire 

program, including, in particular, Utah’s 

overall statewide permitting program 

and the NSR requirements it imposes on 

minor sources. These requirements 

require all new sources and 

modifications, whether major or minor, 

to apply Best Available Control 

Technology (BACT), with limited 

exceptions (discussed below). 

Therefore, even when a source does not 

trigger PSD, the source must still apply 

BACT. The net effect is that emissions 

will not change if a project is reviewed 

under the minor source requirements 

rather than the PSD regulations. 

Similarly, Utah’s statewide permitting 

program requires that sources that 

exceed certain emissions thresholds 

conduct modeling to ensure that their 

emissions will not result in an 

exceedance of the NAAQS. The 

thresholds that Utah applies for this 

requirement are the same significance 

thresholds as the PSD regulations 

require. Thus, Utah applies the same 

essential control technology and 

modeling requirements to minor sources 

as it does to major sources. 

Consequently, the fact that a source or 

modification might have been subject to 

the previously-approved PSD 

regulation, but is not subject to the 

revised PSD regulation, is not likely to 

result in increased emissions or 

interfere with NAAQS attainment. 

In support of this conclusion, the 

State analyzed 14 different scenarios to 

determine how a modification would be 

affected by the change in applicability 

provisions. The scenarios focused on 

the types of changes that would no 

longer be subject to the PSD rule, and 

examined whether these modifications 

would still require Best Available 

Control Technology (BACT) and/or 

modeling to ensure that the NAAQS 

were not exceeded. In 12 of the 14 

scenarios, under Utah’s SIP-approved 

minor NSR program, BACT would be 

required for the modification even if the 

modification no longer met the 

applicability provisions of the PSD 

rule.2 Therefore, the state concluded 

that emissions will not increase under 

the NSR Reform rule. The two 

exceptions, where BACT would not be 

required, occurred for modifications 

where emissions from the source are 

decreasing. Under these two scenarios, 

an emissions-decreasing modification 

that would have required review under 

the previously-approved PSD program 

could, under the revised rules, be 

constructed without the requirement to 

apply BACT. This is the type of scenario 

where the PSD rule created a 

disincentive for sources to reduce 

emissions. Adoption of the NSR Reform 

rule will remove this disincentive by 

allowing sources to install pollution 

controls or increase the efficiency of 

older emission units without requiring 

BACT, thereby resulting in reduced 

emissions overall. 

Utah further evaluated a number of 

different scenarios to determine whether 

modifications that would no longer be 

subject to PSD would still be reviewed 

under Utah’s minor source program or 

whether they might avoid that review as 

mstockstill on DSK4VPTVN1PROD with RULES

Federal Register / Vol. 76, No. 136 / Friday, July 15, 2011 / Rules and Regulations 41715 

well. Utah’s minor source permitting 

program has a number of exemptions 

that are located in R307–401–9 through 

16. Most of the exemptions would only 

apply to sources that would be minor 

under Utah’s previously-approved PSD 

regulations as well as under the revised 

rules. The two that could possibly apply 

to sources that would qualify as PSD 

major sources under Utah’s previouslyapproved PSD regulations are R307– 

401–11, Replacement-in-kind 

Equipment and R307–401–12, 

Reduction in Air Contaminants. 

The replacement-in-kind rule is 

restrictive, and has been modified to 

contain some of the more specific 

language regarding eligibility that is 

found in the PSD rule. Because sources 

have an incentive to upgrade to newer, 

more efficient units and because older 

technologies are often no longer 

available, this rule is not used by 

sources to avoid updated technology. 

Similarly, the reduction in air 

contaminants exemption under R307– 

401–12 applies by definition to sources 

that are decreasing emissions. As 

described above, the State believes that 

removing the disincentive through NSR 

Reform is likely to decrease emissions 

in Utah overall. 

Accordingly, EPA has concluded that 

adoption of this SIP revision will 

maintain or improve air quality and 

meets the requirements of section 110(l). 

2. Section 193 

a. Summary of Comments Regarding 

Section 193: 

Section 193 of the CAA states (in 

relevant part) that ‘‘[n]o control 

requirement in effect, or required to be 

adopted by an order, settlement 

agreement, or plan in effect before 

November 15, 1990, in any area which 

is a nonattainment area for any air 

pollutant may be modified after 

November 15, 1990, in any manner 

unless the modification insures 

equivalent or greater emission 

reductions of such air pollutant.’’ NRDC 

states that ‘‘[t]he same Utah provisions’’ 

discussed earlier in its comment violate 

Section 193. NRDC argues that NSR is 

a control requirement and thus the 

requirements of Section 193 apply to the 

NSR rules at issue in the Utah SIP 

revision. NRDC further alleges that 

neither Utah nor EPA has determined 

that Utah’s revisions will ensure 

equivalent or greater emissions 

reductions; to the contrary, NRDC 

alleges that ‘‘the modifications ensure 

that emissions will not be reduced as 

much as under the preexisting rules.’’ 

b. EPA Response to Section 193- 

Related Comments: 

Utah’s NSR Reform rule is focused on 

the major source permitting 

requirements in attainment areas (PSD 

permitting program). It does not alter 

permitting or control requirements for 

pollutants for which the area is 

designated nonattainment, and therefore 

is not subject to Section 193. NSR 

reform in nonattainment areas will be 

dealt with in a future rulemaking. 

Furthermore, as discussed above, the 

overall effect of Utah’s revisions is 

expected to be neutral or beneficial. 

Thus, even if Section 193 were 

applicable, Utah’s revision would 

satisfy Section 193 for the same reason 

that it satisfies Section 110(l). 

II. Final Action 

A. Rules To Approve Into the Utah SIP 

EPA is taking final action to approve 

a revision to Utah’s SIP that would, for 

the most part, incorporate by reference 

the Federal PSD requirements, found in 

40 CFR 52.21, into the State’s PSD 

program and replace EPA’s prior 

approvals. The March 7, 2008 submitted 

revision to R307–405 incorporates by 

reference the provisions of 40 CFR 52.21 

as they existed on July 1, 2007, with the 

exceptions noted below. 

Utah did not incorporate by reference 

those sections of the Federal rules that 

do not apply to State activities or are 

reserved for the Administrator of the 

EPA. These sections are 40 CFR 

52.21(a)(1) (Plan disapproval), 52.21(q) 

(Public participation), 52.21(s) 

(Environmental impact statements), 

52.21(t) (Disputed permit or 

redesignations), and 52.21(u) 

(Delegation of authority). Utah did not 

incorporate by reference the vacated 

Federal requirements for ‘‘Equipment 

Replacement,’’ ‘‘Clean Unit,’’ and 

‘‘Pollution Control Project.’’ 

Utah’s March 7, 2008 submittal of the 

incorporation by reference revisions to 

R307–405 describes the circumstances 

in which the term ‘‘Administrator’’ 

continues to mean the EPA 

Administrator, and when it means 

instead the Executive Secretary of the 

Utah Air Quality Board. R307–405– 

3(3)(d)(ii)) identifies the following 

provisions in R307–405 where the term 

‘‘Administrator’’ shall be changed to 

‘‘EPA Administrator:’’ 40 CFR 

52.21(b)(17), 52.21(b)(37)(i), 

52.21(b)(43), 52.21(b)(48)(ii)(c), 

52.21(b)(50)(i), 52.21(l)(2), 52.21(p)(2), 

and 51.166(q)(2)(iv). 

As noted above, Utah did not 

incorporate by reference 

40 CFR 52.21(q) (Public participation). 

Utah has instead incorporated by 

reference 40 CFR 51.166(q) (Public 

participation) at Utah rule R307–405– 

18. The provisions in 40 CFR 51.166 

identify what a SIP must contain for 

EPA to approve a PSD permit program, 

and generally mirror the federal PSD 

regulations at 40 CFR 52.21. In addition, 

Utah added in Utah rule R307–405– 

18(2) an additional provision that 

modifies the PSD permit public 

participation requirements in 40 CFR 

51.166(q) to replace ‘‘within a specified 

time period’’ in 40 CFR 51.166(q)(1) 

with ‘‘within 30 days of receipt of the 

PSD permit application.’’ 

The following provisions in R307–405 

do not incorporate by reference 40 CFR 

52.21, but instead either add language 

that is currently contained in the Utah 

SIP or add language specific to Utah’s 

PSD program: R307–405–4 (‘‘Area 

Designations’’), R307–405–5 (‘‘Area 

Redesignation’’), and R307–405–8 

(‘‘Exclusions From Increment 

Consumption’’). We have determined 

that these provisions are consistent with 

the requirements for SIP approved states 

contained in 40 CFR 51.166(e), (f), and 

(g). 

EPA is also taking final action on 

approval of the September 15, 2006 

submitted revision R307–110–9 

(‘‘Section VIII, Prevention of Significant 

Deterioration of the Utah Air Quality 

Rules’’) to indicate that the most 

currently amended version is March 8, 

2006. Section VIII summarizes, in a 

narrative fashion, the current federal 

PSD requirements, in addition to the 

Utah specific permitting requirements 

for new and modified sources and area 

designations. We are approving the 

March 8, 2006 version of Section VIII 

into the SIP to replace the federallyapproved December 18, 1992 version 

currently in the Utah SIP. 

As described above, the requirements 

included in Utah’s PSD program, as 

specified in R307–405 are substantively 

the same as the Federal PSD provisions 

due to Utah’s incorporation of the 

federal rules by reference. The revisions 

Utah made, in consideration of the 

requirements provided in 40 CFR 52.21, 

were reviewed by EPA and found to be 

as stringent as the requirements for PSD 

programs in 40 CFR 51.166, except as 

noted above regarding the provision in 

R307–405–3(3)(a)(i). Therefore, EPA has 

determined that, except for R307–405– 

3(3)(a)(i), the rule revisions to R307–405 

and R307–110–9 are consistent with the 

program requirements for the 

preparation, adoption, and submittal of 

implementation plans for the Prevention 

of Significant Deterioration of Air 

Quality, as set forth in 40 CFR 51.166, 

and are approvable. 

mstockstill on DSK4VPTVN1PROD with RULES

41716 Federal Register / Vol. 76, No. 136 / Friday, July 15, 2011 / Rules and Regulations 

3 ‘‘Indian country’’ is defined under 18 U.S.C. 

1151 as: (1) All land within the limits of any Indian 

reservation under the jurisdiction of the United 

States Government, notwithstanding the issuance of 

any patent, and including rights-of-way running 

through the reservation, (2) all dependent Indian 

communities within the borders of the United 

States, whether within the original or subsequently 

acquired territory thereof, and whether within or 

without the limits of a State, and (3) all Indian 

allotments, the Indian titles to which have not been 

extinguished, including rights-of-way running 

through the same. Under this definition, EPA treats 

as reservations trust lands validly set aside for the 

use of a Tribe even if the trust lands have not been 

formally designated as a reservation. In Utah, 

Indian country includes, but is not limited to, the 

Northwestern Band of the Shoshoni Nation, the 

Paiute Indian Tribe of Utah, the Skull Valley Band 

of Goshute Indians, and the Ute Indian Tribe on the 

Uintah and Ouray Reservation. 

B. Rules To Disapprove and Therefore 

Not Incorporate Into the Utah SIP 

Utah has adopted a specific definition 

of ‘‘Major Source Baseline Date,’’ found 

at R307–405–3(3)(a)(i), in its revised 

PSD rule. This definition deviates from 

the definition found in 40 CFR 

52.21(b)(14) and the corresponding 

requirement for state PSD programs at 

51.166(b)(14). Utah’s definition specifies 

that the major source baseline date for 

particulate matter 10 microns in 

diameter or less (PM10) is the ‘‘date that 

EPA approves the PM10 maintenance 

plan that was adopted by the Board on 

July 6, 2005’’ for Davis, Salt Lake, Utah, 

and Weber Counties. The requirement 

for State programs at 40 CFR 

51.166(b)(14) specifies January 6, 1975 

as the major source baseline date for 

particulate matter, and the current EPAapproved SIP for Utah also specifies 

January 6, 1975 as the major source 

baseline date for PM–10 for the entire 

State (refer to Utah’s SIP-approved rule 

R307–101–2 ‘‘Definitions’’). EPA is not 

aware of any authority for it to approve 

into a SIP a different major source 

baseline date other than January 6, 1975. 

Further, we note there is no provision 

in the CAA for using a different date if 

an area was in a legally designated nonattainment status on January 6, 1975. 

EPA is taking final action to disapprove 

Utah’s definition of ‘‘Major Source 

Baseline Date,’’ and therefore, the 

current federally-approved definition 

found in R307–101–2 would continue to 

apply as a federally enforceable 

provision in lieu of the State-adopted 

version. 

C. Scope of Action 

We are taking final action to partially 

approve revisions to R307–405 

(‘‘Permits: Major Sources in Attainment 

or Unclassified Areas (PSD)’’) and to 

approve revisions to R307–110–9 

(‘‘Section VIII, Prevention of Significant 

Deterioration of the Utah Air Quality 

Rules’’). EPA is taking final action to 

disapprove R307–405–3.(3)(a)(i) because 

it defines ‘‘Major Source Baseline Date’’ 

in a manner inconsistent with the 

federal definition found at 40 CFR 

52.21(b)(14). In all other respects we are 

approving the State’s March 7, 2008 

submitted revisions to R307–405, and 

the State’s September 15, 2006 

submitted revisions of R307–110–9. 

Utah has not demonstrated authority 

to implement and enforce these rules 

within ‘‘Indian country’’ as defined in 

18 U.S.C. 1151.5. Therefore, this SIP 

approval does not extend to ‘‘Indian 

country’’ in Utah.3 See CAA sections 

110(a)(2)(A) (SIP shall include 

enforceable emission limits), 

110(a)(2)(E)(i) (State must have adequate 

authority under State law to carry out 

SIP), and 172(c)(6) (nonattainment SIPs 

shall include enforceable emission 

limits). This is consistent with EPA’s 

previous approval of Utah’s PSD 

program, in which EPA specifically 

disapproved the program for sources 

within Indian Reservations in Utah 

because the State had not shown it had 

authority to regulate such sources. See 

40 CFR 52.683(b). It is also consistent 

with EPA’s approval of Utah’s title V air 

operating permits program. See 61 FR 

64622, 64623 (December 6, 1996) 

(interim approval does not extend to 

Indian country); 66 FR 50574, 50575 

(October 4, 2001) (full approval does not 

extend to Indian country). 

III. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, 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 Clean Air Act. 

Accordingly, this proposed action 

merely approves State law as meeting 

Federal requirements and 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 Clean Air Act; 

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 13, 

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 

mstockstill on DSK4VPTVN1PROD with RULES

Federal Register / Vol. 76, No. 136 / Friday, July 15, 2011 / Rules and Regulations 41717 

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. 

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

Dated: June 29, 2011. 

James B. Martin, 

Regional Administrator, Region 8. 

Part 52, chapter I, title 40 of the Code 

of Federal Regulations 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 52.2320 is amended by 

adding paragraph (c)(69) to read as 

follows: 

§ 52.2320 Identification of plan. 

* * * * * 

(c) * * * 

(69) On September 15, 2006 and 

March 7, 2008 the State of Utah 

submitted revisions to its State 

Implementation Plan (SIP) that 

contained revised rules pertaining to the 

State’s Prevention of Significant 

Deterioration (PSD) preconstruction 

permit program. 

(i) Incorporation by reference. 

(A) The Utah Administrative Code 

(UAC), R307–110–9, Section VIII, 

Prevention of Significant Deterioration, 

is amended effective June 16, 2006. 

(B) The Utah Administrative Code 

(UAC), R307–405, Permits: Major 

Sources in Attainment or Unclassified 

Areas (PSD), (except R307–405– 

3(2)(a)(i), ‘‘Major Source Baseline Date’’) 

is amended effective September 7, 2007. 

[FR Doc. 2011–17783 Filed 7–14–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2011–0537; FRL–9431–9] 

Revisions to the California State 

Implementation Plan, South Coast Air 

Quality Management District 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: EPA is taking direct final 

action to approve revisions to the South 

Coast Air Quality Management District 

(SCAQMD) portion of the California 

State Implementation Plan (SIP). These 

revisions concern volatile organic 

compound (VOC) emissions from 

consumer paint thinner & multi-purpose 

solvents and metalworking fluids & 

direct-contact lubricants. We are 

approving local rules that regulate these 

emission sources under the Clean Air 

Act as amended in 1990 (CAA or the 

Act). 

DATES: This rule is effective on 

September 13, 2011 without further 

notice, unless EPA receives adverse 

comments by August 15, 2011. 

If we receive such comments, we will 

publish a timely withdrawal in the 

Federal Register to notify the public 

that this direct final rule will not take 

effect. 

ADDRESSES: Submit comments, 

identified by docket number EPA–R09– 

OAR–2011–0537, by one of the 

following methods: 

1. Federal eRulemaking Portal: 

http://www.regulations.gov. Follow the 

online instructions. 

2. E-mail: steckel.andrew@epa.gov. 

3. Mail or deliver: Andrew Steckel 

(Air-4), U.S. Environmental Protection 

Agency Region IX, 75 Hawthorne Street, 

San Francisco, CA 94105–3901. 

Instructions: All comments will be 

included in the public docket without 

change and may be made available 

online at http://www.regulations.gov, 

including any personal information 

provided, unless the comment includes 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Information that 

you consider CBI or otherwise protected 

should be clearly identified as such and 

should not be submitted through 

http://www.regulations.gov or e-mail. 

http://www.regulations.gov is an 

‘‘anonymous access’’ system, and EPA 

will not know your identity or contact 

information unless you provide it in the 

body of your comment. If you send email directly to EPA, your e-mail 

address will be automatically captured 

and included as part of the public 

comment. 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. 

Docket: Generally, documents in the 

docket for this action are available 

electronically at http:// 

www.regulations.gov and in hard copy 

at EPA Region IX, 75 Hawthorne Street, 

San Francisco, California. While all 

documents in the docket are listed at 

http://www.regulations.gov, some 

information may be publicly available 

only at the hard copy location (e.g., 

copyrighted material, large maps), and 

some may not be publicly available in 

either location (e.g., CBI). To inspect the 

hard copy materials, please schedule an 

appointment during normal business 

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: 

Adrianne Borgia, EPA Region IX, (415) 

972–3576, borgia.adrianne@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we,’’ ‘‘us,’’ 

and ‘‘our’’ refer to EPA. 

Table of Contents 

I. The State’s Submittal 

A. What rules did the State submit? 

B. Are there other versions of these rules? 

C. What is the purpose of the submitted 

rules? 

II. EPA’s Evaluation and Action 

A. How is EPA evaluating the rules? 

B. Do the rules meet the evaluation 

criteria? 

C. EPA Recommendations To Further 

Improve the Rules 

D. Public Comment and Final Action 

III. Statutory and Executive Order Reviews 

I. The State’s Submittal 

A. What rules did the State submit? 

Table 1 lists the rules we are 

approving with the dates that they were 

adopted by the local air agencies and 

submitted by the California Air 

Resources Board (CARB). 

TABLE 1—SUBMITTED RULES

Local agency Rule No. Rule title Amended Submitted 

SCAQMD .......................................... 1143 Consumer Paint Thinner & Multi-Purpose Solvents ................ 12/3/10 4/5/11. 

mstockstill on DSK4VPTVN1PROD with RULES