[Federal Register Volume 59, Number 239 (Wednesday, December 14, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-30607]


[[Page Unknown]]

[Federal Register: December 14, 1994]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[UT4-1-6465 and UT2-1-6694; FRL-5119-1]

 

Approval and Promulgation of State Implementation Plans: Utah; 
Stack Height Analyses and Regulations and SO2 Nonattainment Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: In this action, EPA is approving two revisions to the Utah 
State Implementation Plan (SIP): Section 16, Stack Height 
Demonstration, and Section 9, Part B, Sulfur Dioxide. Sections 16 and 9 
were submitted by the Governor of Utah in letters dated December 23, 
1991, and May 15, 1992, respectively. The revisions to Section 16 were 
to address the stack-height demonstration requirements for the 
Kennecott Minerals Company Smelter near Magna, Utah. Minor corrections 
to the other stacks in the State were also made. Section 9, Part B was 
revised to be consistent with Section 16. Prior to the revision, the 
SO2 attainment demonstration for Salt Lake County and portions of 
Tooele County was based on multipoint rollback emission rates at the 
Kennecott smelter. The PM10 SIP adopted for Salt Lake County in 
1991 established significantly lower emission rates (which would meet 
the 24-hour National Ambient Air Quality Standard (NAAQS) for the 
smelter based on reasonable available control technology (RACT).) 
Section 16 and Section 9, Part B needed to be consistent with the 
PM10 SIP (the PM10 SIP is located in Section 9, Part A). In 
addition, Section 9 Part B was revised to include an analysis and the 
emission limitation that would demonstrate attainment of the 3-hour 
secondary NAAQS. General SO2 regulations initially determined as 
deficient with respect to meeting the statewide SO2 SIP 
requirements are also being approved.

EFFECTIVE DATE: January 13, 1995.

ADDRESSES: Copies of the documents relevant to this proposed action are 
available for public inspection between 8:00 a.m. and 4:00 p.m., Monday 
through Friday, at the following office: Environmental Protection 
Agency, Region VIII, Air Programs Branch, 999-18th Street, suite 500, 
Denver, Colorado 80202-2466.

FOR FURTHER INFORMATION CONTACT: Lee Hanley at (303) 293-1760.

SUPPLEMENTARY INFORMATION:

I. Background

A. Regulatory History and Regulatory Requirement for Stacks Greater 
Than GEP

    On February 8, 1982 (47 FR 5864), EPA promulgated final regulations 
limiting stack height credits and other dispersion techniques as 
required by section 123 of the Clean Air Act (CAA). As a result of a 
court challenge, EPA promulgated revisions to the stack height 
regulations on July 8, 1985 (50 FR 27892). The revisions redefined a 
number of specific terms including ``excessive concentrations,'' 
``dispersion techniques,'' ``nearby,'' and other important concepts, 
and modified some of the bases for determining good engineering 
practice (GEP) stack height credit.
    Subsequent to the July 8, 1985 promulgation, the stack height 
regulations were again challenged in NRDC v. Thomas, 838 F.2d 1224 
(D.C. Cir. 1988). On January 22, 1988, the U.S. Court of Appeals for 
the D.C. Circuit issued its decision affirming the regulations, for the 
most part, but remanding three provisions to the EPA for 
reconsideration. These are:
    1. Grandfathering pre-October 11, 1983 within-formula stack height 
increases from demonstration requirements (40 CFR 51.100(kk)(2));
    2. Dispersion credit for sources originally designed and 
constructed with merged or multiflue stacks (40 CFR 
51.100(hh)(2)(ii)(A)); and
    3. Grandfathering pre-1979 use of the refined H + 1.5L formula (40 
CFR 51.100(ii)(2)).
    However, none of these provisions is at issue here.
    GEP has been established by the regulations to be the greater of: 
(1) 65 meters; (2) the height derived through application of one of two 
formulas which base GEP on the dimensions of nearby buildings; or (3) 
the height demonstration through a field study or fluid modeling 
demonstration to be necessary to avoid excessive concentrations of any 
air pollutant due to downwash, eddies, or wakes caused by the source 
itself or nearby buildings or terrain obstacles (40 CFR 51.100(ii). 
Where EPA or a State finds that a source emission limit is affected by 
dispersion from a stack in excess of GEP, the State must then model to 
establish an emission limit which will provide for attainment of the 
NAAQS when stack height credit is restricted to GEP.
    The reader is referred to 59 FR 18341, April 18, 1994, for 
additional information on the regulatory history and regulatory 
requirement for stacks greater than good engineering practice (GEP).

B. The 1981 and 1986 SIP Submittals

1. The 1981 SO2 SIP Submittal
    A Utah SO2 SIP revision was submitted with a letter dated 
August 17, 1981, by the Governor of Utah to address the attainment of 
the SO2 NAAQS in Salt Lake County and portions of the 
nonattainment area in Tooele County. Additional information was 
submitted by the State on December 7, 1981, and January 25, 1983. On 
February 7, 1983, the Governor submitted a request to redesignate all 
of Salt Lake County and the nonattainment portion of Tooele County to 
attainment. On March 23, 1984 (49 FR 10926), EPA proposed to delay any 
action on the request to redesignate the area to attainment until final 
resolution of several issues. A detailed discussion of this SIP 
revision is contained in the March 23, 1984 notice of proposed 
rulemaking and should be used as a reference for additional 
information.
    The control strategy for the 1981 SIP has several parts: (1) 
Emission limitations on several low-level stacks at the smelter (e.g., 
boilers and heat treaters); (2) reasonably available measures to 
control or eliminate fugitive emissions; and (3) cumulative emission 
limits for the main stack (see additional discussion on these emission 
limits in 2.b. below). The State's strategy was based upon measured 
ambient data in the lower elevation near the smelter. EPA identified 
the major deficiencies of the State analysis: (1) The State made no 
attempt to demonstrate the effects in the upper elevation (above 5600 
feet in the Oquirrh Mountains); and (2) the database at the smelter was 
insufficient to be used reliably with the established emission limits, 
given the assumption in the development of the emission limits 
technique. Modeling analyses performed by the State and EPA to 
demonstrate attainment in the upper elevation were screening analyses 
only. EPA concluded that dispersion modeling in this complex terrain 
was unreliable and that the only method that could be used for this 
determination was monitoring. The 1981 SO2 SIP was conditionally 
approved on the assumption that the emission limits were consistent 
with federal 1985 stack height rules and, therefore, adequate for 
attainment of the SO2 NAAQS. The redesignation of the area to 
attainment was denied. (50 FR 7059, February 20, 1985)
2. The May 2, 1986 GEP SIP Submittal
    The Utah Stack Height SIP was submitted by the Governor with a 
letter dated May 2, 1986. The submittal included regulations to 
address: (1) GEP stack height credit and dispersion techniques; (2) a 
new Section 17 of the SIP that listed all existing stacks in Utah 
greater than 65 meters; and (3) a technical support document for 
Section 17 of the SIP. The Kennecott Magna stack analyses were part of 
this submittal. Subsequent submittals to support the Kennecott analyses 
were received in letters dated October 6, 1986, December 3, 1986, 
November 13, 1987, and May 17, 1988. The Kennecott smelter stack height 
credit was a significant component of the Utah SO2 SIP emission 
limits conditionally approved on February 20, 1985.
    a. Applicability of the NSPS Regulation. The federal NSPS 
regulation for primary copper smelters applies to any such facility 
that commences construction or modification after October 16, 1974 (42 
FR 37937, July 25, 1977, and 40 CFR 60.160). Modification generally 
means any physical or operational change which results in an increase 
in the emission rate to the atmosphere.
    The Kennecott Magna smelter expansion/modification began in the 
early 1970s, with a commitment to the 1215-foot stack in 1973 and 
completion of the project in 1977. The modification of the acid plant 
system resulted in an increase from 60% sulfur capture to 86%, 
approximately a 65% reduction of sulfur emissions. Based on this 
information, EPA concluded that the 1970's Kennecott expansion/
modification did not subject the smelter to NSPS requirements.
    b. Analyses on the 1986 Submittal. The Kennecott stack height 
analyses were undertaken to comply with the July 8, 1985 stack height 
regulation, as well as the condition specified in the approval of the 
Utah SO2 SIP. The reader should refer to the February 2, 1985 
final conditional approval (50 FR 7056) and March 23, 1984 proposed 
approval (49 FR 10946) Federal Register actions for additional 
information on the Utah SO2 SIP.
    Kennecott originally had two 400-foot stacks (grandfathered stack 
heights) from which SO2 emissions from the smelter were vented. 
The 1970's modification/expansion included the replacement of the 400-
foot stacks with a single 1215-foot stack. The GEP formula height (H + 
1.5 L), considering the nearby buildings, is 212.5 feet.
    The initial Kennecott GEP demonstration was submitted on May 2, 
1986, with subsequent submittals on October 6, 1986, December 3, 1986, 
November 13, 1987, and May 11, 1988. There are two basic parts to the 
Kennecott analyses: the GEP demonstration and BART analysis. The GEP 
demonstration consists of three subparts: the fluid modeling protocol, 
the fluid modeling results, and an evaluation of the fluid modeling 
results with respect to the stack height regulations. The BART analysis 
is performed if the source contends that the NSPS emission limits are 
infeasible. Relevant factors for this analysis include: high cost-
effectiveness ratio, excessive local community impact, excessive plant 
impact, and technological infeasibility. Kennecott provided responses 
to all the BART factors mentioned above. The cost-effectiveness ratio 
and technical infeasibility issues, however, were determined critical 
to this review because of their relationship to the emission 
limitations used in the GEP analyses.
    Since the Kennecott emissions, as established through Multi-point 
Rollback (MPR), were used in the 1981 SO2 SIP, EPA's primary 
concern, with the use of any emission rate in the demonstration of GEP, 
is ensuring protection of the NAAQS (i.e., to protect health and 
welfare). The basic concept behind GEP is to prevent sources from using 
illegal dispersion techniques to avoid emissions controls.
    Kennecott provided extensive data on its GEP analyses. The reader 
is referred to 53 FR 48942 for information on the GEP demonstration and 
BART analysis. To summarize, the GEP demonstration showed that the 
existing stack height of 1215-foot (370.4m) met the 40% criterion due 
to terrain effects and an exceedance of the NAAQS at MPR emission 
rates. (Discussion of the MPR emission rates for Kennecott can be found 
in 49 FR 10948, March 12, 1983, proposed rulemaking). MPR is a 
technique designed for sources with variable emission rates (e.g., 
smelters). MPR allows for a frequency distribution of emission rates 
which will permit extremely high emissions on rare occasions. The MPR 
methodology is constructed around the recognition that any control 
strategy will have a predictable probability of allowing a violation of 
the NAAQS. The MPR is based upon allowing a 26% probability of 
recording a violation (Additional information on MPR is found in 
Appendix A). The GEP demonstration satisfies the excessive 
concentration criteria in EPA's regulation if MPR reflects the proper 
emission rates. After review, EPA concluded that Kennecott's analyses 
were acceptable, since Kennecott performed a fluid modeling study 
consistent with existing guidance and the study was approved by EPA.
    Application of the level of control required by NSPS would reduce 
the emissions of SO2 at Kennecott during the stable process phase, 
but would not affect emission rates under startup, shutdown, 
malfunction, and upset conditions. This is because the NSPS emission 
rate is for normal operations and excludes such process conditions. MPR 
includes startup, shutdown, malfunction, and upset conditions. From the 
Kennecott assessment, considering only long-term averages, the cost 
portion is consistent with the tons of SO2 reduction expected from 
similar NSPS applications. In the Kennecott BART analysis, the 
controlling emissions for the determination of GEP appear to be those 
under upset, start-up, shutdown, and malfunction. Therefore, while 
there would be no difference in the emission rates under these 
conditions as a result of meeting NSPS, there would be a substantial 
additional cost to control these emissions.
    In summary, the emissions at the smelter from startups, shutdowns, 
upsets, and malfunctions are included in the MPR emission limits and 
could be considered in the NAAQS attainment and GEP analyses. 
Application of NSPS technology will not affect these emission rates and 
will, therefore, result in no change in demonstrating GEP. It may be 
possible to reduce annual emissions by requiring additional controls on 
the smelter, but such reduction would have no relevance to the limiting 
case for determination of GEP.
    Given the above discussion, EPA proposed to approve (53 FR 48942, 
December 5, 1988) the Kennecott analysis in the Utah GEP SIP submitted 
on May 2, 1986, with subsequent submittals on October 6, 1986, December 
3, 1986, November 13, 1987, and May 17, 1988. However, EPA's review was 
conducted under a specific assumption: That the emission rate(s) in the 
SO2 SIP were sufficient to demonstrate attainment. That assumption 
followed another critical assumption: That Kennecott owned or 
controlled the lands in the upper elevation for which no monitoring 
data exist to demonstrate attainment of the NAAQS.
    Only one comment was received in response to the December 5, 1988 
Federal Register proposed approval of the Kennecott GEP demonstration. 
The comment was from Kennecott in support of this action. However, 
prior to publication of the proposed approval Federal Register, EPA did 
receive a letter from a landowner in the Oquirrh Mountains expressing 
concerns due to the lack of ambient monitoring in the nonattainment 
area. This was EPA's first documented information on public access in 
the nonattainment area other than the Kennecott operation. EPA 
proceeded to continue its evaluation of the State submittal and to 
publish its position on the GEP demonstration based on the State 
submittal, but initiated a reevaluation on land ownership above the 
5600-ft. elevation in the Oquirrh Mountains. Documentation on the claim 
of land ownership, other than that of the Kennecott operations, was 
provided by Howard Haynes, Jr. in March 1989.
3. Utah 1981 SO2 and 1986 GEP SIP Reassessment
    Data from the Salt Lake County and Tooele County Assessor offices 
showed over 80 landowners in this nonattainment area. Kennecott, in its 
land ownership research, verified the list of landowners.
    One of the critical assumptions of the conditional approval of the 
1981 SO2 SIP and the emission rate was Kennecott's ownership or 
control of those lands in the potential nonattainment area in the 
Oquirrh Mountains. The land ownership research revised the EPA's 
earlier assumptions on the adequacy of the 1981 SO2 and the 1986 
GEP Stack SIPs.
    EPA entered into discussions with Kennecott and the State for 
resolution of these issues and attempted to outline the procedures for 
addressing the SO2 and GEP SIPs. During these negotiations, the 
State was developing the PM10 SIP for Salt Lake County. The Salt 
Lake County PM10 SIP development process identified SO2 as a 
precursor for PM10. (Precursors are secondary particles which are 
formed in the atmosphere from gases which are directly emitted by the 
source. Sulfates are one of the most common secondary particles in a 
PM10 nonattainment area and result from sulfur dioxide emissions.) 
The Kennecott smelter SO2 emissions comprised 56% of 
the total (primary and secondary) PM10 emissions in Salt Lake 
County.
    The PM10 SIP was adopted by the State in August 1991 and 
submitted to EPA in November 1991. The reader is referred to 59 FR 
35036, July 8, 1994, for information on the PM10 SIP. The 
PM10 SIP required significant emission reduction for the Kennecott 
operations (refinery, concentrator, mine, power plant and smelter). The 
Kennecott smelter emission limits were reduced from 76,000 tpy or 
18,000 lb/hr annual average (as allowed in the 1981 SO2 and 1986 
GEP SIPs) to 18,500 tpy (which includes fugitive emissions, 
and applies to the entire smelter). The 1981 SO2 and 1986 GEP SIPs 
addressed emissions from smelter processing units and SO2 
collection and removal equipment vented to the smelter tall stack. They 
did not include fugitive emissions. For clarification, the 76,000 tpy 
was reduced to the 14,191 tpy limit on the 1215-foot stack for 
emissions from the smelter processing units and SO2 collection and 
removal equipment.

D. The 1991 GEP and 1992 SO2 SIP Submittals

    Prior to the State's adoption of the PM10 SIP, EPA discussed 
the uncertainties of finalizing the 1986 GEP SIP with the State and 
Kennecott. In a letter dated July 18, 1991, EPA clarified its position 
on the need for consistency within the Utah SIP with respect to 
emission limitations at the Kennecott smelter. EPA stated that it could 
not knowingly and legally proceed to approve a regulation and emission 
limitation that were no longer applicable, or a stack height 
demonstration analysis based on an obsolete regulation or emissions 
limitation.
    In a letter dated December 23, 1991, the Governor of Utah submitted 
a revision to Section 16, Demonstration of GEP Stack Height, of the 
Utah SIP. The 1991 submittal was received on December 30, 1991. On 
February 28, 1992, EPA advised the Governor of Utah that this submittal 
was administratively and technically complete in accordance with the 
Federal SIP completeness criteria.
    The revisions to Section 16 specify the allowable emission limit 
for the 1215-foot main stack at 14,191 tons/year as derived in the 
PM10 SIP. This emission limit is based on double contact acid 
plant technology (which is considered NSPS for the smelter acid plant 
tail gas), significant capture improvement of fugitive emissions, and 
improved operation and maintenance. The 1991 submittal also contained a 
reanalysis of other sources in the State for which stack heights above 
the de minimis level (65m) were previously reported. (These sources' 
stack heights were published in 54 FR 24334, June 7, 1989.)
    EPA found minor changes between the June 7, 1989 Federal Register 
and the 1991 revision to Section 16 for the ``actual'' stack height of 
some sources. EPA is not concerned with these minor changes since they 
could be attributed to errors in rounding and the stack height changes 
are less than one foot. Listed below are the differences between the 
June 7, 1989 Federal Register and the 1991 submittal:

------------------------------------------------------------------------
                                                                1991    
                   Source                       6/7/89 FR     revision  
------------------------------------------------------------------------
Deseret Units 1 & 2.........................  182.9 m.....  182 m       
UP&L Hunter Units 1 & 2.....................  183.08 m....  183 m       
UP&L Hunter Unit 3..........................  183.1 m.....  183 m*      
UP&L Huntington Units 1 & 2.................  182.93 m....  183 m       
IPP Units 1 & 2.............................  216.46 m....  216 m       
Chevron USA HCC cracker.....................  1946*.......  1950**      
------------------------------------------------------------------------
*The State indicated very insignificant changes to these sources        
  ``calculated'' GEP stack heights; the State has indicated that the    
  ``actual'' height will be the enforceable stack height.               
**Correction of grandfathered date.                                     

    The State's revised analyses are presented in the table below. 
Detailed documentation for these analyses and the corresponding EPA 
review is contained in the EPA technical support document and air 
compliance files, and the State files.

------------------------------------------------------------------------
                                                           Allowable SO2
                 Source name                      Stack      emissions  
                                               height (M)    (ton year) 
------------------------------------------------------------------------
Deseret Units 1&2............................      182     1,512        
U.P.&L. Hunter Units 1&2.....................      183     4,347        
U.P.&L. Hunter Unit 3........................      183     1,283        
U.P.&L. Huntington Units 1&2.................      183     9,448        
I.P.P. Units 1&2.............................      216     17,870       
U.P.&L. Gadsby Units 1,2&3...................       76.2   67.7+        
Geneva Steel blast furnaces 1&2..............       79.2   12.5+*       
Geneva Steel Coke blast furnace..............       68.6   .............
Geneva Steel Coke Combustion 1-4.............       76.2   102.8+       
Kennecott Utah Copper Smelter Main Stack.....      370     14,191+*     
Chevron USA HCC Cracker Cat. Dis.............       88.4   66.7+        
Chevron Research Air Heater..................       69.8   0            
Chevron Research Retort......................       69.8   0+           
Amax melt reactor............................       76.22  0            
Amax electrolytics...........................       76.22  0            
Amax emergency off gas.......................       76.22  0            
Amax spray dryers 1-3........................       76.22  83           
Phillips thermal cat. cracking...............       80.8   3.5+         
White River Shale Lift Pipes.................       76.2   -            
White River Elutriators......................       76.2   -            
White River Hydrogen Plant...................       76.2   -            
White River Power Plants.....................       76.2   -            
White River Ball Heaters.....................       76.2   1,180.8*     
Tosco Preheat Stacks.........................       95     -            
Tosco Warm Ball Elutriators..................       95     -            
Tosco Process Shale Wetters..................       95     1,166.6*     
------------------------------------------------------------------------
+SO2 emissions derived from the PM10 SIP adopted August 14, 1991.       
*The total SO2 emissions are given for these sources.                   

    On May 15, 1992, the Governor of Utah submitted a revision to 
Section 9, Part B, Sulfur Dioxide, Utah SIP. The revision was to 
address the 1990 CAA requirement that a SIP revision be submitted by 
May 15, 1992, for any area that did not have a fully approved SIP (the 
1981 SO2 SIP was only conditionally approved). The significant 
changes in this SIP revision from that of the 1981 submittal are as 
follows:
    a. The MPR emission limitations and assumptions are removed and 
replaced with the emission limitation which can be achieved using the 
NSPS technology, double contact acid plant, or the equivalent of NSPS. 
(NSPS is the presumptive norm for RACT for this facility.) The SO2 
SIP now references the same emission limitations as those stated in 
PM10 SIP.
    b. The SO2 NAAQS are the 0.14 ppm, 24-hour primary standard, 
and the 0.5 ppm, 3-hour secondary standard. The 24-hour impact analysis 
was a rollback analysis which compared the smelter emissions in 1991 
(PM10 SIP emission limitation) with 1979 emissions. The State had 
monitoring data showing attainment at Lake Point (an area originally 
defined as ambient air and owned by the Bureau of Land Management, but 
now owned by Kennecott) where exceedances were recorded. The Lake Point 
site could be considered representative of the closest point in the 
elevated terrain that would be impacted by the tall stack emissions. 
Demonstrating attainment at Lake Point would technically support the 
attainment elsewhere in the elevated terrain that is considered ambient 
air. The area considered ambient air in the elevated terrain is a 
significant distance downwind from Lake Point.
    c. The PM10 SIP addressed, to some degree, the 3-hour impact. 
The PM10 SIP emission limitation was based on a 24-hour SO2 
limit; this emission limitation would be achieved through a given lb/hr 
calculated on a 6-hour average. The 24-hour limit was considered 
``controlling'' for PM10 and SO2 (i.e., the 24-hour 
limitation was believed to be the level of control necessary for 
PM10 attainment, as well as for the SO2 attainment 
demonstration). The SO2 SIP established a 3-hour limitation and 
verified that such limitation would protect the 3-hour NAAQS.
    d. Section 4.2 of the Utah Air Conservation Regulations was revised 
to include a 24-hour averaging period for the sulfur content of coal, 
fuel oil, and fuel mixtures, and to specify the ASTM methods to be used 
to demonstrate compliance with the limitation and reporting 
requirement. (The previous rule specified a limit for the sulfur 
content of fuels, but did not specify an averaging time or specific 
ASTM methods.) Section 4.6 was also revised to include a 3-hour 
averaging time for Sulfur Burning Production Sulfuric Acid Plants.
    e. Specific regulations which provided for special consideration 
(including malfunction provisions) on the smelter fluctuating operation 
are removed. Malfunction provisions for the Kennecott smelter operation 
are now the same as for any stationary source in Utah. This issue was 
addressed during the PM10 SIP development and is being approved 
under the PM10 SIP federal approval process. These regulation 
impacts were clarified in this SIP revision.

II. Final Action

    This document makes final the action at 59 FR 18341, April 16, 
1994. No adverse public comment was submitted with the proposed action. 
As a direct result, the Regional Administrator has reclassified this 
action from Table I to a Table III under the processing procedures 
established at 54 FR 2214, January 19, 1989.
    The December 23, 1991 Section 16, Stack Height revision and the May 
15, 1992 Section 9, Part B, SO2 revision are consistent with other 
provisions in the State-wide SIP. EPA is approving these revisions 
because they are consistent with EPA guidance for GEP stack height 
demonstration and the attainment demonstration for the SO2 NAAQS. 
General SO2 regulations initially determined as deficient with 
respect to meeting the statewide SO2 SIP requirements are also 
being approved.
    These revisions resolve EPA's concerns regarding ambient air, 
attainment demonstration in the elevated terrain, and the 
enforceability issues related to the smelter operations. The previous 
emission limitations have been the subject of litigation filed by the 
Environmental Defense Fund. The legal actions have been stayed pending 
EPA final action on the past SIP revisions. The 1991 and 1992 revisions 
are believed to have settled the litigants' concerns about applying 
reasonable control technology and demonstrating attainment per the 
traditionally accepted federal requirements (i.e., application of RACT 
(double contact acid plant or the equivalent), monitoring 
demonstration, etc).
    The May 15, 1992 submittal also contained an updated Appendix A.2.1 
(Emission Limitations and Operating Practices for Davis and Salt Lake 
Counties). EPA is not acting on this part of the submittal since no 
information on the stationary source updates was provided with this 
submittal. In addition, EPA's review during the State's public hearing 
for the SO2 SIP did not include information on these emission 
limitations.
    Since State adoption of this SO2 and Stack Height SIPs, the 
State has been finalizing the permit conditions for these SO2 
sources. EPA has advised the State on the need to ensure consistency 
with the State's permits and the federally enforceable SIP. The State's 
permit program is in the federally approved SIP. The final approval to 
the SO2 and Stack Height SIPs will also make the emission 
limitations for these stationary sources federally enforceable. EPA is 
giving notice that should different emission limitations exist, EPA 
will enforce the more stringent of the two (or more) emission 
limitations. EPA must have assurance that the attainment demonstration 
of a nonattainment area plan is maintained. The less stringent emission 
limitation may not provide that assurance without a reanalysis of the 
attainment demonstration. It is, therefore, critical that the State 
maintain consistent emission limitations in the permits and in the 
federally approved nonattainment area plan and update the emission 
limitations section of these plans to ensure clarity and consistency in 
the Statewide SIP. The tracking of this effort will be documented 
annually in the EPA/State Agreement.

Regulatory Process

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over population of less than 
50,000.
    SIP approvals under section 110 and subchapter I, part D of the CAA 
do not create any new requirements, but simply approve requirements 
that the State is already imposing. Therefore, because the federal SIP-
approval does not impose any new requirements, I certify that it does 
not have a significant impact on any small entities affected. Moreover, 
due to the nature of the federal-state relationship under the CAA, 
preparation of a regulatory flexibility analysis would constitute 
federal inquiry into the economic reasonableness of state action. The 
CAA forbids EPA to base its actions concerning SIPs on such grounds. 
Union Electric Co. v. U.S. E.P.A. 427 U.S. 246, 256-66 (S.Ct. 1976); 42 
U.S.C. 7410(a)(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by February 13, 1995. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purposes of judicial review nor does 
it extend the time within which a petition for judicial review may be 
filed, and shall not postpone the effectiveness of such rule or action. 
This action may not be challenged later in proceedings to enforce its 
requirements (see Section 307(b)(2)).

Executive Order 12866

    The OMB has exempted these actions from review under Executive 
Order 12866.

List of Subjects in 40 CFR Part 52

    Air pollution control, Environmental protection, Incorporation by 
reference, Reporting and recordkeeping requirements, Sulfur dioxide.

    Note: Incorporation by reference of the State Implementation 
Plan for the State of Utah was approved by the Director of the 
Federal Register on July 1, 1982.

    Dated: October 6, 1994.
Jack W. McGraw,
Acting Regional Administrator.

    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. 7401-7671q.

Subpart TT--Utah

    2. Section 52.2320 is amended by adding paragraph (c)(26) to read 
as follows:


Sec. 52.2320  Identification of plan.

* * * * *
    (c) * * *
    (26) The Governor of Utah submitted a Section 16, Stack Height 
Demonstration and Section 9, Part B, Sulfur Dioxide of the Utah State 
Implementation Plan (SIP) a letter dated December 23, 1991, and May 15, 
1992, respectively. The Governor's submittal also included statewide 
SO2 regulations.
    (i) Incorporation by reference.
    (A) Utah State Implementation Plan, Section 16, effective December 
16, 1991.
    (B) Utah State Implementation Plan, Section 9, Part B effective 
June 15, 1992.
    (C) Utah Air Conservation Regulations, R307-1-4. Emission 
Standards: changes to 4.2 Sulfur Content of Fuels and 4.6.2, effective 
June 15, 1992.

[FR Doc. 94-30607 Filed 12-13-94; 8:45 am]
BILLING CODE 6560-50-P