Federal Register / Vol. 74, No. 4 / Wednesday, January 7, 2009 / Proposed Rules 667 

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. 

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: 

• www.regulations.gov. Follow the 

on-line instructions for submitting 

comments. 

• E-mail: videtich.callie@epa.gov and 

leone.kevin@epa.gov. 

• Fax: (303) 312–6064 (please alert 

the individual listed in the FOR FURTHER

INFORMATION CONTACT section if you are 

faxing comments). 

• Mail: Callie A. Videtich, Director, 

Air Program, Environmental Protection 

Agency (EPA), Region 8, Mailcode 8P– 

AR, 1595 Wynkoop Street, Denver, 

Colorado 80202–1129. 

• 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 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 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 leone.kevin@epa.gov. 

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). 

668 Federal Register / Vol. 74, No. 4 / Wednesday, January 7, 2009 / Proposed Rules 

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 

Federal Register / Vol. 74, No. 4 / Wednesday, January 7, 2009 / Proposed Rules 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 PM10 major source 

baseline date 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 federal definition 

in 40 CFR 52.21(b)(14) specifies January 

6, 1975 as the major source baseline 

date for PM10, 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 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: 

• 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 

670 Federal Register / Vol. 74, No. 4 / Wednesday, January 7, 2009 / Proposed Rules 

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. 

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] 

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