[Federal Register Volume 74, Number 4 (Wednesday, January 7, 2009)]
[Proposed Rules]
[Pages 667-670]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-48]



[[Page 667]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2007-0927; FRL-8760-5]


Approval, Disapproval, and Promulgation of Air Quality 
Implementation Plans; Utah; Revisions to New Source Review Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to partially approve and partially disapprove 
State Implementation Plan revisions submitted by the State of Utah on 
September 15, 2006, October 1, 2007, and March 7, 2008 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''). Utah 
adopted these rules on June 15, 2006, July 11, 2007, and January 9, 
2008 and these rules became State-effective on June 16, 2006, September 
7, 2007, and January 11, 2008 respectively. Utah has a federally 
approved Prevention of Significant Deterioration (PSD) program for new 
and modified sources impacting attainment areas in the State. This 
action is being taken under section 110 of the Clean Air Act.

DATES: Comments must be received on or before February 6, 2009.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2007-0927, by one of the following methods:
    <bullet> www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#c4b2ada0a1b0ada7aceaa7a5a8a8ada184a1b4a5eaa3abb2"><span class="__cf_email__" data-cfemail="384e515c5d4c515b50165b595454515d785d4859165f574e">[email protected]</span></a> and <a href="/cdn-cgi/l/email-protection#cba7aea4a5aee5a0aebda2a58baebbaae5aca4bd"><span class="__cf_email__" data-cfemail="c6aaa3a9a8a3e8ada3b0afa886a3b6a7e8a1a9b0">[email protected]</span></a>.
    <bullet> Fax: (303) 312-6064 (please alert the individual listed in 
the FOR FURTHER INFORMATION CONTACT section if you are faxing 
comments).
    <bullet> Mail: Callie A. Videtich, Director, Air Program, 
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129.
    <bullet> Hand Delivery: Callie A. Videtich, Director, Air Program, 
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129. Such deliveries are only 
accepted Monday through Friday, 8 a.m. to 4:30 p.m., excluding Federal 
holidays. Special arrangements should be made for deliveries of boxed 
information.
    Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-
2007-0927. 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 e-mail. 
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 e-
mail comment directly to EPA, without going through 
www.regulations.gov, your e-mail address will be automatically captured 
and included as part of the comment that is placed in the public docket 
and made available on the Internet. If you submit an electronic 
comment, EPA recommends that you include your name and other contact 
information in the body of your comment and with any disk or CD-ROM you 
submit. If EPA cannot read your comment due to technical difficulties 
and cannot contact you for clarification, EPA may not be able to 
consider your comment. Electronic files should avoid the use of special 
characters, any form of encryption, and be free of any defects or 
viruses. For additional information about EPA's public docket visit the 
EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. 
For additional instructions on submitting comments, go to Section I. 
General Information of the SUPPLEMENTARY INFORMATION section of this 
document.
    Docket: All documents in the docket are listed in the 
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 a.m. to 4 p.m., excluding 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Kevin Leone, Air Program, Mailcode 8P-
AR, Environmental Protection Agency, Region 8, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129, (303) 312-6227, or <a href="/cdn-cgi/l/email-protection#fe929b91909bd0959b889790be9b8e9fd0999188"><span class="__cf_email__" data-cfemail="1a767f75747f34717f6c73745a7f6a7b347d756c">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. General Information
    A. What should I consider as I prepare my comments for EPA?
II. What is being addressed in this document?
III. What are the changes that EPA is proposing to approve?
IV. What are the changes that EPA is proposing to disapprove?
V. What action is EPA taking today?
VI. Statutory and Executive Order Reviews

Definitions

    For the purpose of this document, we are giving meaning to certain 
words or initials as follows:
    (i) The word Act or initials CAA mean or refer to the Clean Air 
Act, unless the context indicates otherwise.
    (ii) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (iii) The initials SIP mean or refer to State Implementation Plan.
    (iv) The words State or Utah mean the State of Utah, unless the 
context indicates otherwise.

I. General Information

A. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
www.regulations.gov or e-mail. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in 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:
    a. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).

[[Page 668]]

    b. Follow directions--The agency may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    c. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    d. Describe any assumptions and provide any technical information 
and/or data that you used.
    e. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    f. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    g. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    h. Make sure to submit your comments by the comment period deadline 
identified.

II. What Is Being Addressed in This Document?

    On September 15, 2006, the State of Utah submitted revisions to 
revise the Utah State Implementation Plan (SIP) and rules. These 
revisions addressed the federal New Source Review Reform Rule published 
by EPA on December 31, 2002 (67 FR 80186). Specifically, Utah submitted 
a revision to Utah rule R307-110-9 (hereafter referred to as R307-110-
9), which incorporates SIP section VIII into the Utah Administrative 
Code. The only change to R307-110-9, was to revise the date that the 
rule was most recently amended by the Utah Air Quality Board (UAQB) 
from December 18, 1992 to February 1, 2006. Utah also submitted SIP 
Section VIII, entitled Prevention of Significant Deterioration (PSD), 
which was completely revised, and Utah rule R307-405 (hereafter 
referred to R307-405). The revised R307-405 generally incorporates by 
reference the federal PSD requirements found at 40 CFR 52.21.
    The revisions submitted by the State of Utah on October 1, 2007 
updated the incorporation by reference section in R307-405 to reflect 
the July 1, 2006 version of the Code of Federal Regulations and to make 
a number of other changes to the rule text that are required due to the 
change in the incorporation by reference date.
    The revisions submitted by the State of Utah on March 7, 2008 
updated the incorporation by reference section in R307-405 to reflect 
the July 1, 2007 version of the Code of Federal Regulations.
    As described below in sections III and IV of this action, EPA is 
proposing to approve and disapprove revisions to R307-405 (``Permits: 
Major Sources in Attainment or Unclassified Areas (PSD)'') and approve 
R307-110-9 (``Section VIII, Prevention of Significant Deterioration of 
the Utah Air Quality Rules''), which includes an amended Section VIII 
into the Utah SIP. These revisions to R307-110-9 and R307-405 were 
submitted to EPA by the Utah Department of Environmental Quality (UDEQ) 
on September 15, 2006, October 1, 2007, and March 7, 2008 and relate to 
the PSD permit program of the State of Utah. These revisions to R307-
405 that were submitted to us on March 7, 2008 were adopted by the Utah 
Air Quality Board on January 9, 2008 and became State-effective on 
January 11, 2008. The March 7, 2008 submittal supersedes the prior 
submittals and is the version of R307-405 that we are proposing partial 
approval and partial disapproval in this action.
    We note that 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. These 
regulatory revisions included provisions for baseline emissions 
determinations, actual-to-future-actual methodology, ``Plantwide 
Applicability Limits (PALs)'', ``Clean Units'', and ``Pollution Control 
Projects''. As stated in the December 31, 2002 rulemaking, State and 
local permitting agencies were required to adopt and submit revisions 
to their 40 CFR part 51 permitting programs implementing the minimum 
program elements of that rulemaking (67 FR 80240). With the September 
15, 2006 submittal, Utah requested approval of its PSD program 
revisions into the SIP that satisfy this requirement.
    On November 7, 2003, EPA published a reconsideration of the NSR 
Reform regulations that clarified two provisions in the regulations by 
including a definition of ``replacement unit'' and by clarifying that 
the plantwide applicability limitation (PAL) baseline calculation 
procedures for newly constructed units do not apply to modified units 
(68 FR 63021).
    On June 24, 2005, the United States Court of Appeals for the 
District of Columbia Circuit issued its ruling on challenges to the 
December 2002 NSR Reform revisions (State of New York et al. v. EPA, 
413 F.3d 3 (DC Cir. 2005)). Although the Court upheld most of EPA's 
rules, it vacated both the ``Clean Unit'' and the ``Pollution Control 
Project'' provisions and remanded back to EPA the recordkeeping 
provision in 40 CFR 52.21(r)(6) that required a stationary source to 
keep records of projects when there was a ``reasonable possibility'' 
that the project could result in a significant emissions increase. The 
phrase ``reasonable possibility'' used in the federal rule in 40 CFR 
52.21(r)(6) limits the recordkeeping provisions to modifications at 
facilities that use the actual-to-future-actual methodology to 
calculate emissions changes and that may have a ``reasonable 
possibility'' of a significant emissions increase.
    On December 21, 2007, EPA published a final rule in response to the 
DC Circuit Court's remand of the recordkeeping provisions of EPA's 2002 
NSR Reform Rules (see 72 FR 70607) in which EPA clarified what 
constitutes ``reasonable possibility''. The version of R307-405-19 that 
was submitted for approval into Utah's SIP on March 7, 2008 does 
incorporate by reference the phrase ``reasonable possibility'' of the 
recordkeeping provisions at 40 CFR 52.21(r)(6). We note, however, that 
R307-405-19 only incorporates by reference the July 1, 2007 effective 
version of the Code of Federal Regulations and, therefore, does not 
incorporate by reference EPA's December 21, 2007 final rule (see 72 FR 
70607) that clarified what constitutes ``reasonable possibility''. To 
address this issue, Utah submitted a commitment letter to EPA dated 
September 4, 2008 that acknowledges this federal rule change and that 
the State's PSD regulations will continue to follow the ``reasonable 
possibility'' provisions in a manner that is consistent with EPA's 
final rule.
    On October 27, 2003 EPA published the Routine Equipment Replacement 
Provision (68 FR 61248), which specified at 40 CFR 52.21(cc) the 
criteria for routine equipment and replacement. On March 17, 2006, the 
Court of Appeals for the DC Circuit vacated EPA's final Routine 
Equipment Replacement Provision.
    In its March 8, 2008 submittal of the revisions to R307-405, Utah 
did not incorporate the vacated ``Clean Unit'', ``Pollution Control 
Projects'', or ``Routine Equipment Replacement provisions''.

III. What are the changes that EPA is proposing to approve?

    EPA is proposing 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

[[Page 669]]

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'' continues to mean the Administrator of 
EPA: 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), and 52.21(p)(2).
    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 be 
specific for Utah.
    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 proposing approval of the September 15, 2006 submitted 
revision R307-110-9 (``Section VIII, Prevention of Significant 
Deterioration of the Utah Air Quality Rules''). This revision updates 
the reference to Section VIII, ``Prevention of Significant 
Deterioration of the Utah Air Quality Rules'' to indicate that the most 
currently amended version is March 8, 2006. EPA is also proposing 
approval of the March 8, 2006 version of Section VIII, Prevention of 
Significant Deterioration of the Utah Air Quality Rules into the SIP. 
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 
also proposing approval of the March 8, 2006 version of Section VIII 
into the SIP as it would replace the federally-approved 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 Federal rules, 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, R307-110-9, and Utah SIP Section VIII 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.

IV. What are the changes that EPA is proposing to disapprove?

    Utah has adopted a specific definition of ``Major Source Baseline 
Date'', found at R307-405-3(3)(a)(i), in its revised PSD rule. Part of 
this definition deviates from the federal definition found in 40 CFR 
52.21(b)(14). Utah's definition specifies that the PM<INF>10</INF> 
major source baseline date is the ``date that EPA approves the 
PM<INF>10</INF> maintenance plan that was adopted by the Board on July 
6, 2005'' for Davis, Salt Lake, Utah, and Weber Counties. The federal 
definition in 40 CFR 52.21(b)(14) specifies January 6, 1975 as the 
major source baseline date for PM<INF>10</INF>, and the current EPA-
approved 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 Clean Air Act for using a different date if an area 
was in a legally designated non-attainment status on January 6, 1975. 
EPA is proposing 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. However, if 
prior to our final SIP rulemaking action, Utah submits a SIP revision 
to their PSD rule to make the definition of ``Major Source Baseline 
Date'' consistent with the Federal definition used in 40 CFR 
52.21(b)(14) EPA would then be able to approve an incorporation by 
reference of 40 CFR 52.21(b)(14).

V. What action is EPA taking today?

    We propose 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'') and Utah SIP 
Section VIII. EPA is proposing 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, and Utah SIP Section VIII.

VI. 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:
    <bullet> 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);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> Is certified as not having a significant economic impact 
on a substantial number of small entities

[[Page 670]]

under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
    <bullet> 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);
    <bullet> Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> 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
    <bullet> Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

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

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

    Dated: November 24, 2008.
Stephen S. Tuber,
Acting Regional Administrator, Region 8.
 [FR Doc. E9-48 Filed 1-6-09; 8:45 am]
BILLING CODE 6560-50-P


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