[Federal Register Volume 60, Number 110 (Thursday, June 8, 1995)]
[Rules and Regulations]
[Pages 30192-30195]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13927]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70

[UT-001; FRL-5217-8]


Clean Air Act Final Full Approval of Operating Permits Program; 
Approval of Construction Permit Program Under Section 112(l); State of 
Utah

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final full approval.

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SUMMARY: The EPA is promulgating full approval of the Operating Permits 
Program submitted by the State of Utah for the purpose of complying 
with Federal requirements for an approvable State Program to issue 
operating permits to all major stationary sources, and to certain other 
sources. EPA is also approving the Utah Construction Permit Program 
under section 112(l) of the Clean Air Act for the purpose of creating 
Federally enforceable permit conditions for sources of hazardous air 
pollutants listed pursuant to section 112(b) of the Clean Air Act.

EFFECTIVE DATE: July 10, 1995.

ADDRESSES: Copies of the State's submittal and other supporting 
information used in developing the final full approval are available 
for inspection during normal business hours at the following location: 
U.S. Environmental Protection Agency, Region 8, 999 18th Street, suite 
500, Denver, Colorado 80202.

FOR FURTHER INFORMATION CONTACT: Laura Farris, 8ART-AP, U.S. 
Environmental Protection Agency, Region 8, 999 18th Street, suite 500, 
Denver, Colorado 80202, (303) 294-7539.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

    Title V of the 1990 Clean Air Act Amendments (sections 501-507 of 
the Clean Air Act (``the Act'')), and implementing regulations at 40 
Code of Federal Regulations (CFR) part 70 (part 70) require that States 
develop and submit operating permits programs to EPA by November 15, 
1993, and that EPA act to approve or disapprove each program within one 
year after receiving the submittal. The EPA's program 
[[Page 30193]] review occurs pursuant to section 502 of the Act and the 
part 70 regulations, which together outline criteria for approval or 
disapproval. Where a program substantially, but not fully, meets the 
requirements of part 70, EPA may grant the program interim approval for 
a period of up to two years. If EPA has not fully approved a program by 
two years after the November 15, 1993 date, or by the end of an interim 
program, it must establish and implement a Federal program.
    On March 22, 1995, EPA proposed full approval of the Operating 
Permits Program for the State of Utah (PROGRAM). See 60 FR 15105. EPA 
received public comments on the proposal, and is taking final action to 
promulgate full approval of the Utah PROGRAM.

II. Final Action and Implications

A. Analysis of State Submission

    The Governor of Utah submitted an administratively complete title V 
Operating Permit Program (PROGRAM) for the State of Utah on April 14, 
1994. The Utah PROGRAM, including the operating permit regulations 
(Utah Administrative Code Rule R307-15, Operating Permit Requirements), 
fully meets the requirements of 40 CFR parts 70.2 and 70.3 with respect 
to applicability; parts 70.4, 70.5, and 70.6 with respect to permit 
content including operational flexibility; part 70.5 with respect to 
complete application forms and criteria which define insignificant 
activities; part 70.7 with respect to public participation and minor 
permit modifications; and part 70.11 with respect to requirements for 
enforcement authority.
    R307-15-3 contains the PROGRAM definitions. EPA is aware that other 
Utah regulations may contain similar, but not identical, definitions as 
those contained in R307-15-3. For purposes of this PROGRAM approval, 
EPA wishes to clarify that the binding definitions are those contained 
in R307-15-3.
    R307-15-5(5) of the State's permitting regulation lists the 
insignificant activities that sources do not have to include in their 
operating permit application. This list includes specific activities 
and sources which are considered to be insignificant. This provision 
states that the source's application may not omit information needed to 
determine applicable requirements or to evaluate the fee amount 
required.
    Utah has the authority to issue a variance from requirements 
imposed by State law. Section 16-2-113, Utah Code Ann., provides that 
any person may apply to the board for a variance from its rules. The 
board may grant the requested variance, ``if it determines that the 
hardship imposed by compliance would outweigh the benefit to the 
public.'' This authority is limited by regulation: Utah Administrative 
Code section R307-1-2.3 provides that the board may grant variances to 
the extent provided under law, unless prohibited by the Act. Other 
statutory provisions of State law require that the operating permit 
program must meet the requirements of title V of the Act. See, section 
19-2-104(1)(f) and 19-1-109.1(c)-(d), Utah Code Ann.
    In addition to these limitations, EPA regards Utah's variance 
provision as wholly external to the PROGRAM submitted for approval 
under part 70, and consequently is proposing to take no action on this 
provision of State law. EPA has no authority to approve provisions of 
State law, such as the variance provision referred to, which are 
inconsistent with part 70. EPA does not recognize the ability of a 
permitting authority to grant relief from the duty to comply with a 
Federally enforceable part 70 permit, except where such relief is 
granted through procedures allowed by part 70. If the State uses its 
variance provision strictly to establish a compliance schedule for a 
source that will be incorporated into a title V permit, then EPA would 
consider this an acceptable use of a variance provision. However, the 
routine process for establishing a compliance schedule is through 
appropriate enforcement action. EPA reserves the right to enforce the 
terms of the part 70 permit where the permitting authority purports to 
grant relief from the duty to comply with a part 70 permit in a manner 
inconsistent with part 70 procedures.
    Part 70 of the Federal operating permit regulation requires prompt 
reporting of deviations from the permit requirements. Section 
70.6(a)(3)(iii)(B) of that regulation requires the permitting authority 
to define prompt in relation to the degree and type of deviation likely 
to occur and the applicable requirements. Although the permit program 
regulations should define prompt for purposes of administrative 
efficiency and clarity, an acceptable alternative is to define prompt 
in each individual permit. The EPA believes that prompt should 
generally be defined as requiring reporting within two to ten days of 
the deviation. Two to ten days is sufficient time in most cases to 
protect public health and safety as well as to provide a forewarning of 
potential problems. For sources with a low level of excess emissions, a 
longer time period may be acceptable. However, prompt reporting must be 
more frequent than the semiannual reporting requirement, given this is 
a distinct reporting obligation under section 70.6(a)(3)(iii)(A) of the 
Federal operating permit regulation. Where ``prompt'' is defined in the 
individual permit but not in the program regulations, EPA may veto 
permits that do not contain sufficiently prompt reporting of 
deviations. The Utah PROGRAM will define prompt reporting of deviations 
in each permit consistent with the degree and type of deviation likely 
and the applicable requirements (see subsection R307-15-6(1)(c)(iii)(B) 
of the Utah permitting rule). Deviations from permit requirements due 
to unavoidable breakdowns shall be reported according to the 
unavoidable breakdown provisions of the Utah Administrative Code 
section R307-1-4.7.
    R307-15-7(5)(a)(v) correctly allows the State to incorporate the 
terms of a construction permit (i.e., an ``approval order'') into an 
operating permit using the administrative permit amendment process. 
This process will be available when a source requests enhanced 
procedures in the issuance of its construction permit that are 
``substantially equivalent'' to the operating permit issuance or 
modification procedures. ``Substantial equivalence'' between the 
construction permit and operating permit issuance procedures 
necessarily includes, among other things, public and affected state 
review as well as EPA's 45-day review period and veto authority.

B. Response to Comments

    The comments received on the March 22, 1995 Federal Register notice 
proposing full approval of the Utah PROGRAM, and EPA's response to 
those comments, are as follows:
    Comment #1: One commenter objected to EPA's statement that the Utah 
SIP currently does not allow for emission trading within a permitted 
facility without requiring a permit revision. The commenter stated that 
the federally-approved PM10 SIP for Utah currently contains a plant-
wide emissions limitation for their specific source for the purposes of 
providing operational flexibility and further stated that they do not 
need to request operational flexibility under R307-15-7(a)(ii) since 
their specific source has existing operational flexibility that is 
provided in this SIP limit. The commenter stated that R307-15-7(a)(ii) 
is not applicable to their plant-wide annual emissions limitation.
    EPA Response: EPA would like to clarify its statement that ``the 
approved [[Page 30194]] Utah SIP does not provide for such trading [as 
allowed in 40 CFR 70.4(b)(12)(ii)] at this time.'' When it made this 
statement, EPA was thinking only in terms of a generic trading program. 
EPA was not addressing whether or not the SIP includes operational 
flexibility for an individual source. Furthermore, EPA only included 
the statement for informational purposes. Given that the presence or 
absence of an emissions trading program in the SIP, whether generic or 
plant-specific, has no bearing on the approvability of the part 70 
PROGRAM, EPA has deleted from this notice the language related to 40 
CFR 70.4(b)(12)(ii) which appeared in the notice of proposed 
rulemaking. Finally, if the Utah SIP includes plant-specific 
operational flexibility as the commenter suggests, the determination of 
the applicability of specific part 70 provisions to the exercise of 
such flexibility is not an approval issue, but an implementation issue. 
Because Utah's PROGRAM meets all of the requirements of part 70 and 
Title V of the Act, the commenter's assertions have no bearing on EPA's 
decision to approve Utah's PROGRAM. Questions pertaining to 
applicability of specific provisions of Utah's PROGRAM will be 
addressed during State implementation of the PROGRAM.
    Comment #2: One commenter suggested that Utah does not have the 
authority to impose case-by-case maximum achievable control technology 
(MACT) limitations under 307-1-3, unless the final section 112(g) rule 
imposes National Emission Standards for Hazardous Air Pollutants 
(NESHAP). The commenter also stated that the only conditions applicable 
to hazardous air pollutants (HAPs) under Utah's construction review 
program are best available control technology and NESHAPs, but not 
MACT.
    EPA Response: The EPA is aware that Utah lacks a program designed 
specifically to implement section 112(g). However, Utah does have a 
construction review program that can serve as a procedural vehicle for 
establishing a case-by-case MACT or offset determination and making 
these requirements federally enforceable. The EPA approval of Utah's 
construction review program clarifies that it may be used for this 
purpose during any transition period to meet the requirements of 
section 112(g). An alternative would be for Utah to disallow 
construction and modifications subject to 112(g) during any transition 
period if the States are not given a grace period in the final 112(g) 
rule. See also EPA's response to comment #4.
    Comment #3: One commenter indicated that Utah's construction review 
program, as approved under section 112(l), is an appropriate mechanism 
for establishing limits on the potential-to-emit hazardous air 
pollutants. However, this mechanism may only be used if a source 
voluntarily requests a limit on their potential-to-emit hazardous air 
pollutants.
    EPA Response: EPA agrees with the commenter and does not consider 
this an adverse comment.
    Comment #4: One commenter stated that EPA is proposing to approve 
Utah's construction review program, found in R307-1-3 of the State's 
regulations, solely for the purpose of implementing section 112(g) 
during the transition period between federal promulgation of a section 
112(g) rule and the adoption of State implementing regulations. 
However, the commenter continued on to indicate objection to EPA's 
proposed approval of the Utah construction review program to implement 
section 112(g) because (a) Utah's PROGRAM may not conform to the 
section 112(g) requirements once they have been issued by EPA; and (b) 
EPA is proposing to approve the PROGRAM without clarifying whether 
Utah's PROGRAM addresses the critical threshold questions of how a 
source is to determine if an emissions increase is or is not greater 
than de minimis, and whether or not it has been offset satisfactorily. 
The commenter also stated that, until the Agency completes its 112(g) 
rulemaking, there is no legal basis for allowing Utah to implement 
section 112(g).
    EPA Response: EPA agrees with the commenter's first statement that 
EPA is proposing to approve Utah's construction review program, found 
in R307-1-3 of the State's regulations, solely for the purpose of 
implementing section 112(g) during the transition period between 
federal promulgation of the section 112(g) rule and the adoption of 
State implementing regulations. However, EPA disagrees with the 
remaining comments. The Federal Register notice dated March 22, 1995 
(60 FR 15107) proposing full approval of the Utah Operating Permits 
PROGRAM, under ``b. Implementation of Section 112(g),'' clearly stated 
that ``On February 14, 1995 EPA published an interpretive notice (see 
60 FR 8333) that postpones the effective date of section 112(g) until 
after EPA has promulgated a rule addressing that provision.'' Questions 
regarding the threshold for determining when an emission increase is 
greater than de minimis and when it has been offset satisfactorily will 
be addressed in the final section 112(g) rule. The 112(g) interpretive 
notice explains that EPA is still considering whether the effective 
date of section 112(g) should be delayed beyond the date of 
promulgation of the Federal rule so as to allow States time to adopt 
rules implementing the Federal rule, and that EPA will provide for any 
such additional delay in the final section 112(g) rulemaking. However, 
unless and until EPA provides for such an additional postponement of 
section 112(g), Utah must be able to implement section 112(g) during 
the period between promulgation of the Federal section 112(g) rule and 
adoption of implementing State regulations. EPA believes that, if 
necessary, Utah can utilize its construction review program to serve as 
a procedural vehicle for implementing Section 112(g) and making these 
requirements federally enforceable between promulgation of the Federal 
section 112(g) rule and adoption of implementing State regulations. 
EPA's approval of Utah's construction review program may be used solely 
for the purpose of implementing section 112(g) during the transition 
period to meet the requirements of section 112(g). EPA is limiting the 
duration of the approval to 12 months following promulgation by EPA of 
its section 112(g) rule and this approval will be without effect if EPA 
decides in the final section 112(g) rule that sources are not subject 
to the requirements of the rule until State regulations are adopted.

C. Final Action

    The EPA is promulgating full approval of the Operating Permits 
Program submitted by the State of Utah on April 14, 1994. Among other 
things, Utah has demonstrated that the PROGRAM will be adequate to meet 
the minimum elements of a State operating permits program as specified 
in 40 CFR part 70. EPA is also approving the Utah Construction Permit 
Program found in section R307-1-3 of the State's regulations under 
section 112(l) of the Act for the purpose of creating Federally 
enforceable permit conditions for sources of hazardous air pollutants 
listed pursuant to section 112(b) of the Act, and, under the authority 
of title V and 40 CFR part 70, for the purpose of providing a mechanism 
to implement section 112(g) of the Act during any transition period 
between EPA's promulgation of a section 112(g) rule and adoption by the 
State of rules to implement section 112(g).
    Since EPA proposed full approval of Utah's PROGRAM, EPA has learned 
that the Utah Legislature adopted two laws which provide a privilege 
related to [[Page 30195]] Environmental Self-Evaluations--S.B. 84 and 
S.J.R. 6, codified at 19-7-101--19-7-108, Utah Code Annotated, and Rule 
508 of the Utah Rules of Evidence. It is not clear at this time what 
effect, if any, this privilege might have on title V enforcement 
actions. However, EPA regards these bills as being wholly external to 
the PROGRAM submitted for approval under part 70, and consequently is 
taking no action in this approval on these provisions of State law. If, 
during PROGRAM implementation, EPA determines that these provisions 
interfere with Utah's enforcement responsibilities under part 70, EPA 
will consider this grounds for withdrawing PROGRAM approval in 
accordance with 40 CFR 70.10(c).
    In Utah's part 70 program submission, the State indicated that it 
is not seeking approval from EPA to administer the State's part 70 
PROGRAM within the exterior boundaries of Indian Reservations in Utah. 
In this notice, EPA is approving Utah's part 70 PROGRAM for all areas 
within the State except the following: lands within the exterior 
boundaries of Indian Reservations (including the Uintah and Ouray, 
Skull Valley, Paiute, Navajo, Goshute, White Mesa, and Northwestern 
Shoshoni Indian Reservations) and any other areas which are ``Indian 
Country'' within the meaning of 18 U.S.C. 1151 (excepted areas).
    In not extending the scope of Utah's part 70 PROGRAM to sources 
located in the excepted areas, EPA is not making a determination that 
the State either has adequate jurisdiction or lacks jurisdiction over 
such sources. Should the State of Utah choose to seek program approval 
within these areas, it may do so without prejudice. Before EPA would 
approve the State's part 70 PROGRAM for any portion of the excepted 
areas, EPA would have to be satisfied that the State has authority, 
either pursuant to explicit Congressional authorization or applicable 
principles of Federal Indian law, to enforce its laws against existing 
and potential pollution sources within any geographical area for which 
it seeks program approval and that such approval would constitute sound 
administrative practice.
    Requirements for approval, specified in 40 CFR 70.4(b), encompass 
section 112(l)(5) requirements for approval of a program for delegation 
of section 112 standards as promulgated by EPA as they apply to part 70 
sources. Section 112(l)(5) requires that the State's program contain 
adequate authorities, adequate resources for implementation, and an 
expeditious compliance schedule, which are also requirements under part 
70. Therefore, the EPA is promulgating approval under section 112(l)(5) 
and 40 CFR 63.91 of the State's PROGRAM for receiving delegation of 
section 112 standards that are unchanged from Federal standards as 
promulgated. This program for delegations applies to sources covered by 
the part 70 program, as well as non-part 70 sources.

III. Administrative Requirements

A. Docket

    Copies of the State's submittal and other information relied upon 
for the final full approval, including public comments received and 
reviewed by EPA on the proposal, are maintained in a docket at the EPA 
Regional Office. The docket is an organized and complete file of all 
the information submitted to, or otherwise considered by, EPA in the 
development of this final full approval. The docket is available for 
public inspection at the location listed under the ADDRESSES section of 
this document.

B. Executive Order 12866

    The Office of Management and Budget has exempted this action from 
Executive Order 12866 review.

C. Regulatory Flexibility Act

    The EPA's actions under section 502 of the Act do not create any 
new requirements, but simply address operating permits programs 
submitted to satisfy the requirements of 40 CFR part 70. Because this 
action does not impose any new requirements, it does not have a 
significant impact on a substantial number of small entities.

List of Subjects in 40 CFR Part 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Operating permits, 
Reporting and recordkeeping requirements.

    Dated: May 26, 1995.
Jack W. McGraw,
Acting Regional Administrator.

    Part 70, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 70--[AMENDED]

    1. The authority citation for part 70 continues to read as follows:

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

    2. Appendix A to part 70 is amended by adding the entry for Utah in 
alphabetical order to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating 
Permits Programs

* * * * *

Utah.

    (a) Utah Department of Environmental Quality--Division of Air 
Quality: submitted on April 14, 1994; effective on July 10, 1995.
    (b) [Reserved]

[FR Doc. 95-13927 Filed 6-7-95; 8:45 am]
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