[Federal Register Volume 69, Number 160 (Thursday, August 19, 2004)]
[Rules and Regulations]
[Pages 51368-51370]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-18936]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[RME Docket Number R08-OAR-2004-UT-0002; FRL-7791-7]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action approving State 
Implementation Plan (SIP) revisions submitted by the State of Utah on 
November 9, 2001, and September 16, 2003. The revisions incorporate new 
and revise existing definitions in the State's New Source Review (NSR) 
rules. The revisions update the State's NSR rules so that they are 
consistent with the revisions EPA made to its NSR rules on July 21, 
1992. These revisions were referred to as the WEPCO rule (for the 
Wisconsin Electric Power Company court ruling). In the July 1992 
action, EPA adopted a broad NSR exclusion for utility pollution control 
projects and an ``actual to future actual'' methodology for determining 
whether all other non-routine physical or operational changes at 
utilities (other than the replacement of a unit or addition of a new 
unit) are subject to NSR, and modified its regulations to reflect 
changes made by Congress in the 1990 Amendments to the Clean Air Act to 
the applicability of new source requirements to clean coal technology 
(CCT) and repowering projects, and to ``very clean'' units. The purpose 
of this action is to make the changes to the State's rule federally 
enforceable. This action is being taken under section 110 of the Clean 
Air Act.

DATES: This rule is effective on October 18, 2004, without further 
notice, unless EPA receives adverse comment by September 20, 2004. If 
adverse comment is received, EPA will publish a timely withdrawal of 
the direct final rule in the Federal Register informing the public that 
the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID R08-OAR-2004-
UT-0002, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     Agency Web site: http://docket.epa.gov/rmepub/index.jsp. 
Regional Materials in EDOCKET (RME), EPA's electronic public docket and 
comment system for regional actions, is EPA's preferred method for 
receiving comments. Follow the on-line instructions for submitting 
comments.
     E-mail: [email protected] and [email protected].
     Fax: (303) 312-6064 (please alert the individual listed in 
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
     Mail: Richard R. Long, Director, Air and Radiation 
Program, Environmental Protection Agency, Region 8, Mailcode 8P-AR, 999 
18th Street, Suite 300, Denver, Colorado 80202-2466.
     Hand Delivery: Richard R. Long, Director, Air and 
Radiation Program, Environmental Protection Agency, Region 8, Mailcode 
8P-AR, 999 18th Street, Suite 300, Denver, Colorado 80202-2466. Such 
deliveries are only accepted Monday through Friday, 8 a.m. to 4:55 
p.m., excluding Federal holidays. Special arrangements should be made 
for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID Nos. R08-OAR-2004-
UT-0002. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available at http://docket.epa.gov/rmepub/index.jsp, 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 EDOCKET, 
regulations.gov, or e-mail. The EPA's Regional Materials in EDOCKET and 
Federal regulations.gov Web site are ``anonymous access'' systems, 
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 EDOCKET or 
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 EDOCKET online 
or see the Federal Register of May 31, 2002 (67 FR 38102). 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 Regional 
Materials in EDOCKET index at http://docket.epa.gov/rmepub/index.jsp. 
Although listed in the index, some information is not publicly 
available, i.e., CBI or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically in Regional Materials in EDOCKET or in 
hard copy at the Air and Radiation Program, Environmental Protection 
Agency (EPA), Region 8, 999 18th Street, Suite 300, Denver, Colorado 
80202-2466. 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: Carl Daly, Air & Radiation Program, 
Mailcode 8P-AR, EPA, Region 8, 999 18th Street, Suite 300, Denver, 
Colorado 80202-2466, (303) 312-6416, [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. General Information
II. Background
III. Summary of SIP Revisions and EPA's Review
IV. Final Action
V. 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 words or initials Act or CAA mean or refer to the Clean Air 
Act, unless the context indicates otherwise.

[[Page 51369]]

    (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 
Regional Materials in EDOCKET, 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:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     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.
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

II. Background

    On July 21, 1992, EPA promulgated revisions to Federal PSD and 
nonattainment new source review (NSR) permitting requirements, as well 
as to the Federal new source performance standard (NSPS) requirements 
in 40 CFR part 60, regarding utility pollution control projects (57 FR 
32314-32339). Specifically, EPA made changes to the definition of 
``major modification'' in 40 CFR parts 51 and 52 to set forth the 
conditions under which the addition, replacement, or use at existing 
utility generating units of any system or device whose primary function 
is the reduction of air pollutants (including the switching to less 
polluting fuel where the primary purpose of the switch will be the 
reduction of air pollutants) will or will not subject the source to 
preconstruction review.
    In addition, in the July 1992 notice, EPA amended its NSR 
regulations as they apply to utilities to (1) clarify the NSR baseline 
for determining whether a proposed physical or operational change will 
subject a utility to the preconstruction review requirements of these 
provisions; (2) set forth an actual-to-future actual methodology for 
determining whether a physical or operational change is subject to NSR; 
(3) provide further clarification of the existing regulatory 
requirement that only those increases in emission that actually result 
from the physical change or change in the method of operation can be 
considered in determining whether the proposed change subjects the 
utility to NSR requirements; and (4) implement sections 409 and 415 of 
title IV of the 1990 Amendments of the Clean Air Act which create 
special NSPS treatment for certain repowering projects and limited NSR 
exemptions for temporary and permanent CCT projects and for certain 
``very clean'' units. Refer to the July 21, 1992, Federal Register 
document for further information.
    States were not required to adopt revisions to implement these 
changes, although these changes are in effect in areas where the 
Federal PSD permitting regulations apply. Utah has opted to revise its 
NSR program to incorporate the changes to EPA's NSR rules promulgated 
on July 21, 1992.

III. Summary of SIP Revisions and EPA's Review

    On November 9, 2001, and September 16, 2003, the State of Utah 
submitted formal revisions to its State Implementation Plan (SIP).\1\ 
Specifically, in the general definition rule, the submittals revise the 
definitions of ``Actual Emissions'' and ``Major Modification'' and adds 
the following definitions: ``Clean Coal Technology,'' ``Clean Coal 
Technology Demonstration Project,'' ``Electric Utility Steam Generating 
Unit,'' ``Emissions Unit,'' ``Pollution Control Project,'' 
``Reactivation of Very Clean Coal-Fired Electric Utility Steam 
Generating Unit,'' ``Repowering,'' ``Representative Actual Annual 
Emissions,'' and ``Temporary Clean Coal Technology Demonstration 
Project.'' In the prevention of significant deterioration (PSD) rule a 
definition for ``major modification'' was added.
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    \1\ The September 16, 2003, submittal contains non-substantive 
changes to correct minor errors in the November 9, 2001, submittal.
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    We have reviewed the new and revised definitions submitted by Utah. 
We have found that the revisions are consistent with all of the 
regulatory revisions promulgated by EPA on July 21, 1992.

IV. Final Action

    EPA is approving Utah's SIP revisions submitted on November 9, 
2001, and September 16, 2003. Specifically, in the general definitions 
regulation, R307-101-2, we are approving the revisions to the 
definitions of ``Actual Emissions'' and ``Major Modification'' and the 
addition of the definitions: ``Clean Coal Technology,'' ``Clean Coal 
Technology Demonstration Project,'' ``Electric Utility Steam Generating 
Unit,'' ``Emissions Unit,'' ``Pollution Control Project,'' 
``Reactivation of Very Clean Coal-Fired Electric Utility Steam 
Generating Unit,'' ``Repowering,'' ``Representative Actual Annual 
Emissions,'' and ``Temporary Clean Coal Technology Demonstration 
Project.'' In the PSD regulation, R307-405-1, we are approving the 
addition of a definition for ``Major Modification.''
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. EPA does not anticipate any adverse comments as this 
Utah SIP approval is only a change to bring Utah's current SIP into 
alignment with the NSR revisions EPA promulgated on July 21, 1992 (57 
FR 32314). However, in the ``Proposed Rules'' section of today's 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve the SIP revision if adverse 
comments are filed. This rule will be effective October 18, 2004, 
without further notice unless the Agency receives adverse comments by 
September 20, 2004. If the EPA receives adverse comments, EPA will 
publish a timely withdrawal in the Federal Register informing the 
public that the rule will not take effect. EPA will address all public 
comments in a subsequent final rule based on the proposed rule. The EPA 
will not

[[Page 51370]]

institute a second comment period on this action. Any parties 
interested in commenting must do so at this time. Please note that if 
EPA receives adverse comment on an amendment, paragraph, or section of 
this rule and if that provision may be severed from the remainder of 
the rule, EPA may adopt as final those provisions of the rule that are 
not the subject of an adverse comment.

V. Statutory and Executive Order Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves State law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by State law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under State law and does 
not impose any additional enforceable duty beyond that required by 
State law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have federalism 
implications because it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999). This action merely approves a State rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve State 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by October 18, 2004. 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).)

List of Subjects in 40 CFR Part 52

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

    Dated: July 14, 2004.
Max H. Dodson,
Acting Regional Administrator, Region 8.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart TT--Utah

0
2. Section 52.2320 is amended by adding paragraph (c)(58) to read as 
follows:


Sec.  52.2320  Identification of plan.

* * * * *
    (c) * * *
    (58) On November 9, 2001 and September 16, 2003 the State of Utah 
submitted revisions to its State Implementation Plan (SIP) to 
incorporate new and revise existing definitions in the new source 
review (NSR) rules. The revisions update the State's NSR rules so that 
they are consistent with the revisions EPA made to its NSR rules on 
July 21, 1992.
    (i) Incorporation by reference.
    (A) Revisions to the Utah Air Conservation Regulations, R307-101-2, 
the definitions ``Actual Emissions,'' ``Clean Coal Technology,'' 
``Clean Coal Technology Demonstration Project,'' ``Electric Utility 
Steam Generating Unit,'' ``Emissions Unit,'' ``Pollution Control 
Project,'' and ``Representative Actual Annual Emissions,'' effective 7/
12/01.
    (B) Revisions to the Utah Air Conservation Regulations, R307-101-2, 
the definitions ``Major Modification,'' ``Reactivation of Very Clean 
Coal-Fired Electric Utility Steam Generating Unit,'' ``Repowering,'' 
and ``Temporary Clean Coal Technology Demonstration Project,'' 
effective 6/1/03.
    (C) Revisions to the Utah Air Conservation Regulations, R307-405-1, 
the definition ``Major Modification'' effective 6/1/03.
[FR Doc. 04-18936 Filed 8-18-04; 8:45 am]
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