[Federal Register Volume 76, Number 136 (Friday, July 15, 2011)]
[Rules and Regulations]
[Pages 41712-41717]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-17783]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2007-0927; FRL-9428-9]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is partially approving and partially disapproving 
revisions to the State of Utah's Clean Air Act (CAA) State 
Implementation Plan (SIP). Utah has a federally-approved Prevention of 
Significant Deterioration (PSD) preconstruction permit program for new 
and modified sources impacting attainment areas in the State. Utah 
requested approval of its revised rules to implement the non-vacated 
provisions of EPA's New Source Review (NSR) Reform regulations. EPA 
proposed approval of these rules on January 7, 2009 and received 
adverse comments. In this action, EPA responds to these comments and 
announces EPA's final rulemaking action. This action affects major 
stationary sources in Utah that are subject to or potentially subject 
to the PSD preconstruction permit program. This action is being taken 
under section 110 of the CAA.

DATES: This action is effective on August 15, 2011.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R08-OAR-2007-0927. All documents in the docket 
are listed on the http://www.regulations.gov Web site. Although listed 
in the index, some information may not be publicly available, i.e., 
Confidential Business Information 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 through http://www.regulations.gov or 
in hard copy at EPA Region 8, Air Quality Planning Unit (8P-AR), 1595 
Wynkoop Street, Denver, Colorado 80202. EPA requests that if at all 
possible, you contact the person listed in the FOR FURTHER INFORMATION 
CONTACT section to schedule your inspection. The Regional Office's 
official hours of business are Monday through Friday, 8:30 to 4:30, 
excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Jody Ostendorf, Air Program, Mailcode 
8P-AR, Environmental Protection Agency, Region 8, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129, (303) 312-7814, or [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we'', 
``us'' or ``our'' are used, we mean EPA. Information is organized as 
follows:

Table of Contents

I. Background for This Action
    A. What revisions to the Utah SIP does this action address?
    B. What comments did we receive on our proposal for these 
revisions?
    1. Section 110(l)
    a. Summary of Comments Regarding Section 110(l)
    b. EPA Response to Section 110(l)-Related Comments
    2. Section 193
    a. Summary of Comments Regarding Section 193
    b. EPA Response to Section 193--Related Comments
II. Final Action
    A. Rules To Approve Into the Utah SIP
    B. Rules To Disapprove and Therefore Not Incorporate Into the 
Utah SIP
    C. Scope of Action
III. Statutory and Executive Order Reviews

I. Background for This Action

    Title I of the CAA, as amended by Congress in 1990, specifies the 
general requirements for states to submit SIPs to attain and/or 
maintain the National Ambient Air Quality Standards (NAAQS) and EPA's 
actions regarding approval of those SIPs. SIPs must include, among 
other requirements, an NSR preconstruction permit program, which, for 
attainment areas, meets federal PSD requirements.
    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. For information on subsequent court 
decisions and regulatory revisions to these rules, see http://www.epa.gov/nsr.
    On September 15, 2006, October 1, 2007, and March 7, 2008, the Utah 
Department of Environmental Quality (DEQ) submitted numerous rule 
changes and requested that the Utah SIP be revised to reflect those 
changes. These changes include revisions 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'').
    On January 7, 2009 EPA proposed to partially approve and partially 
disapprove the revisions submitted by the Utah DEQ. 74 FR 667 (January 
7,

[[Page 41713]]

2009). This final action will update the federally approved SIP to 
reflect those changes made by Utah DEQ that EPA has reviewed and deemed 
approvable into the Utah SIP (Code of Federal Regulations, Title 40, 
part 52, subpart TT).

A. What revisions to the Utah SIP does this action address?

    We are partially approving revisions to R307-405 (``Permits: Major 
Sources in Attainment or Unclassified Areas (PSD)'') and approving 
revisions to R307-110-9 (``Section VIII, Prevention of Significant 
Deterioration of the Utah Air Quality Rules''). EPA is disapproving 
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 to R307-110-9. More information about each SIP 
submittal, including a summary of the submittal and relevant background 
information and analysis supporting our action, can be found in our 
proposed rule. 74 FR 667 (January 7, 2009).

B. What comments did we receive on our proposal for these revisions?

    The Natural Resources Defense Council (NRDC) commented on EPA's 
proposal to approve changes to Utah's permitting programs for major 
stationary sources, specifically the PSD permit program and the 
nonattainment area (Part D) permit program that incorporate EPA's 
``2002 NSR Reform Rules.'' NRDC primarily commented on the requirements 
of the Federal NSR rules, not Utah's application of the Federal 
requirements in its own rules. Notably, NRDC participated in litigation 
challenging EPA's promulgation of the 2002 NSR Reform Rules, where 
similar arguments were made by NRDC and rejected by the DC Circuit 
Court. See New York v. EPA, 413 F.3d 3 (D.C. Cir. 2005). Many of NRDC's 
comments in this action, including exhibits, do not raise any specific 
concerns with Utah's rules, but rather, reiterate arguments that NRDC 
made to the court regarding EPA's 2002 NSR Reform Rules and the 
requirements of Sections 110(l) and 193 of the CAA.
    Although NRDC's comments cite nine sections of the Utah rules, the 
comments make no attempt to specifically explain or demonstrate how 
those identified provisions are inconsistent with either Section 110(l) 
or Section 193 of the CAA. Furthermore, NRDC provides no evidence 
supporting its allegations that approval of the specific provisions 
would result in a violation of the CAA. The NRDC comments include a 
list of 31 exhibits which the comment letter incorporates by reference 
into the comments. The 31 exhibits appear to stem from the New York v. 
EPA litigation, and were either submitted to that Court for review, or 
are relevant to that adjudication. In any event, none of the 31 
exhibits provides EPA with any comments specific to the Utah rules at 
issue. NRDC does note that the New York v. EPA decision addressed EPA's 
regulations, rather than state regulations submitted under section 110 
of the CAA, and that the Court of Appeals had no occasion to decide 
whether EPA could approve a particular state's implementation of the 
NSR Reform Rules consistent with Sections 110(l) and 193 of the CAA. 
EPA's responses to NRDC's comments regarding Sections 110(l) and 193 
are below.
1. Section 110(l)
    a. Summary of Comments Regarding Section 110(l):
    NRDC asserts that ``[t]he 2002 NSR Reform Rule provisions that were 
not vacated by the DC Circuit in New York v. EPA allow previously-
prohibited emissions increases to occur.'' As a result, NRDC states 
that ``it cannot be said of Utah's plan that it `will cause no 
degradation of air quality''' and ``Utah has made no `demonstration 
that the emissions that are allowed by its revised rule but are 
prohibited by the current SIP would not interfere with attainment or 
other applicable requirements.''' Further, NRDC states that ``EPA has 
never made, or even proposed to make, a finding that revising Utah's 
permit provisions so that they track the non-vacated provisions of the 
2002 rule'' would be consistent with Section 110(l) of the CAA.
    b. EPA Response to Section 110(l)-Related Comments:
    Section 110(l) of the CAA states that ``[t]he Administrator shall 
not approve a revision of a plan if the revision would interfere with 
any applicable requirement concerning attainment and reasonable further 
progress or any other applicable requirement of this chapter.'' 42 
U.S.C. 7410(l). EPA does not interpret section 110(l) to require a full 
attainment or maintenance demonstration before any changes to a SIP may 
be approved. Generally, a SIP revision may be approved under section 
110(l) if EPA finds it will at least preserve status quo air quality. 
See Kentucky Resources Council, Inc. v. EPA, 467 F.3d 986 (6th Cir. 
2006); GHASP v. EPA, No. 06-61030 (5th Cir. Aug. 13, 2008); see also, 
e.g., 70 FR 53 (Jan. 3, 2005), 70 FR 28429 (May 18, 2005) (proposed and 
final rules, upheld in Kentucky Resources, which discuss EPA's 
interpretation of section 110(l).
    EPA has determined that Utah's SIP revision will not ``interfere 
with any applicable requirement concerning attainment and reasonable 
further progress * * * or any other applicable requirement of [the 
CAA]'' in violation of Section 110(l) of the CAA because it will result 
in neutral or beneficial effects on air quality. EPA's conclusion rests 
on two major analyses: (1) the national-scale analysis that EPA 
conducted in support of the 2002 NSR Reform Rules, and (2) the state-
specific analysis that Utah DEQ conducted in support of its recent 
regulatory revisions.
    First, EPA's national analysis in support of the 2002 NSR Reform 
Rules indicates that the non-vacated provisions of the NSR Reform Rules 
will have a neutral or beneficial impact. The three significant changes 
in the 2002 NSR Reform Rules that were upheld by the court were (1) 
Plantwide applicability limits (PALs), (2) the 2-in-10 baseline, and 
(3) the actual-to-projected actual emission test. EPA's Supplemental 
Environmental Analysis of the Impact of the 2002 Final NSR Improvement 
Rules (November 21, 2002) (Supplemental Analysis) discussed each of 
these three changes individually, and addresses some of the issues 
raised by NRDC.
    With regard to PALs, the Supplemental Analysis explains, ``EPA 
expects that the adoption of PAL provisions will result in a net 
environmental benefit. Our experience to date is that the emissions 
caps found in PAL-type permits result in real emissions reductions, as 
well as other benefits.'' Supplemental Analysis at 6. EPA further 
explained that:



    Although it is impossible to predict how many and which sources 
will take PALs, and what actual reductions those sources will 
achieve for what pollutants, we believe that, on a nationwide basis, 
PALs are certain to lead to tens of thousands of tons of reductions 
of VOC from source categories where frequent operational changes are 
made, where these changes are time sensitive, and where there are 
opportunities for economical air pollution control measures. These 
reductions occur because of the incentives that the PAL creates to 
control existing and new units in order to provide room under the 
cap to make necessary operational changes over the life of the PAL.

Supplemental Analysis at 7. The Supplemental Analysis, and particularly 
Appendix B, provides additional details regarding EPA's analysis of 
PALs and

[[Page 41714]]

anticipated associated emissions decreases.
    With regard to the 2-in-10 baseline, EPA concluded that ``the 
environmental impact from the change in baseline EPA is now finalizing 
will not result in any significant change in benefits derived from the 
NSR program.'' Supplemental Analysis at 13. This is mainly because 
``the number of sources receiving different baselines likely represents 
a very small fraction of the overall NSR permit universe, excludes new 
sources and coal fired power plants, and because the baseline may shift 
in either direction, we conclude that any overall consequences would be 
negligible.'' Supplemental Analysis at 14. Additional information 
regarding the 2-in-10 baseline changes is available in the Supplemental 
Analysis, Appendix F.
    With regard to the actual-to-projected actual test, EPA concluded, 
``We believe that the environmental impacts of the switch to the 
actual-to-projected actual test are likely to be environmentally 
beneficial. However, as with the change to the baseline, we believe the 
vast majority of sources, including new sources, new units, electric 
utility steam generating units, and units that actually increase 
emissions as a result of a change, will be unaffected by this change. 
Thus, the overall impacts of the NSR changes are likely to be 
environmentally beneficial, but only to a small extent.'' Supplemental 
Analysis at 14 (see also Supplemental Analysis Appendix G). EPA has no 
reason to believe that the environmental impacts will be substantially 
different from those discussed in the Supplemental Analysis for the 
2002 NSR Reform Rules.\1\
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    \1\ In reviewing EPA's approval of a Wisconsin SIP amendment 
that adopted of the 2002 NSR Reform rules, a Federal appeals court 
recently held that EPA could rely on the Supplemental Analysis in 
support of its approval. See NRDC v. Jackson, Nos. 09-1405 & 10-2123 
(7th Cir., Jun. 16, 2011), 2011 US App LEXIS 12116.
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    As NRDC acknowledges, the Utah PSD rules track the Federal 2002 NSR 
Reform Rules. Overall, as summarized above, EPA expects that changes in 
air quality as a result of implementing Utah's PSD rules will be 
consistent with EPA's position on the Federal 2002 NSR Reform Rules--
that there will be somewhere between neutral and providing modest 
contribution to reasonable further progress when the 2002 NSR Reform 
Rules are compared to the pre-reform provisions. EPA's analysis for the 
environmental impacts of these three components of the 2002 NSR Reform 
Rules is informative of how Utah's adoption of NSR Reform (based on the 
Federal rules) is expected to affect emissions and air quality. EPA has 
no reason to believe that the environmental impacts in Utah will be 
substantially different from the anticipated nationwide effects 
discussed in the Supplemental Analysis for the 2002 NSR Reform Rules.
    Second, Utah's own analysis of the air quality impacts of its rules 
supports EPA's conclusion that approval of Utah's SIP revision will not 
``interfere with any applicable requirement concerning attainment and 
reasonable further progress * * * or any other applicable requirement 
of [the CAA]'' in violation of Section 110(l) of the CAA. As discussed 
above, NRDC cites seven general sections of Utah's rules as provisions 
the approval of which would violate Section 110(l). Without further 
specificity, however, it is not clear why or how NRDC believes approval 
of these provisions would violate Section 110(l). Moreover, NRDC has 
provided no information or data that indicates that EPA's analysis and 
conclusions regarding the impact of the 2002 NSR Reform Rules, in the 
Supplemental Analysis, are not applicable to Utah's rules, which mirror 
the Federal rules.
    Utah has, however, provided such an analysis. Utah DEQ evaluated 
the air quality impact of the NSR Reform provisions when the State 
adopted the rule in 2006. In response to comments that the NSR Reform 
rule will allow many more modifications at existing major sources than 
the current NSR rules, the State noted that major source permitting 
requirements in attainment areas (the PSD permitting program) are only 
a portion of Utah's overall permitting requirements and the effect of 
the NSR Reform provisions must be viewed in the context of the entire 
program, including, in particular, Utah's overall statewide permitting 
program and the NSR requirements it imposes on minor sources. These 
requirements require all new sources and modifications, whether major 
or minor, to apply Best Available Control Technology (BACT), with 
limited exceptions (discussed below). Therefore, even when a source 
does not trigger PSD, the source must still apply BACT. The net effect 
is that emissions will not change if a project is reviewed under the 
minor source requirements rather than the PSD regulations. Similarly, 
Utah's statewide permitting program requires that sources that exceed 
certain emissions thresholds conduct modeling to ensure that their 
emissions will not result in an exceedance of the NAAQS. The thresholds 
that Utah applies for this requirement are the same significance 
thresholds as the PSD regulations require. Thus, Utah applies the same 
essential control technology and modeling requirements to minor sources 
as it does to major sources. Consequently, the fact that a source or 
modification might have been subject to the previously-approved PSD 
regulation, but is not subject to the revised PSD regulation, is not 
likely to result in increased emissions or interfere with NAAQS 
attainment.
    In support of this conclusion, the State analyzed 14 different 
scenarios to determine how a modification would be affected by the 
change in applicability provisions. The scenarios focused on the types 
of changes that would no longer be subject to the PSD rule, and 
examined whether these modifications would still require Best Available 
Control Technology (BACT) and/or modeling to ensure that the NAAQS were 
not exceeded. In 12 of the 14 scenarios, under Utah's SIP-approved 
minor NSR program, BACT would be required for the modification even if 
the modification no longer met the applicability provisions of the PSD 
rule.\2\ Therefore, the state concluded that emissions will not 
increase under the NSR Reform rule. The two exceptions, where BACT 
would not be required, occurred for modifications where emissions from 
the source are decreasing. Under these two scenarios, an emissions-
decreasing modification that would have required review under the 
previously-approved PSD program could, under the revised rules, be 
constructed without the requirement to apply BACT. This is the type of 
scenario where the PSD rule created a disincentive for sources to 
reduce emissions. Adoption of the NSR Reform rule will remove this 
disincentive by allowing sources to install pollution controls or 
increase the efficiency of older emission units without requiring BACT, 
thereby resulting in reduced emissions overall.
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    \2\ The federally approved Utah SIP incorporates by reference 
``Utah Air Conservation Regulations, R307-1-3.1.8 * * * effective 
August 16, 1993.'' 40 CFR 52.2320(c)(28)(i)(B). That regulation 
provides that ``[t]he [Utah DEQ] shall issue an approval order if 
[it] determines * * * that * * * [t]he degree of pollution control 
for emissions, to include fugitive emissions and fugitive dust, is 
at least best available control technology except as otherwise 
provided in these regulations.'' Utah has since renumbered this 
regulation to Utah Administrative Code R307-401-8 but has not 
changed the substance of the quoted requirement.
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    Utah further evaluated a number of different scenarios to determine 
whether modifications that would no longer be subject to PSD would 
still be reviewed under Utah's minor source program or whether they 
might avoid that review as

[[Page 41715]]

well. Utah's minor source permitting program has a number of exemptions 
that are located in R307-401-9 through 16. Most of the exemptions would 
only apply to sources that would be minor under Utah's previously-
approved PSD regulations as well as under the revised rules. The two 
that could possibly apply to sources that would qualify as PSD major 
sources under Utah's previously-approved PSD regulations are R307-401-
11, Replacement-in-kind Equipment and R307-401-12, Reduction in Air 
Contaminants.
    The replacement-in-kind rule is restrictive, and has been modified 
to contain some of the more specific language regarding eligibility 
that is found in the PSD rule. Because sources have an incentive to 
upgrade to newer, more efficient units and because older technologies 
are often no longer available, this rule is not used by sources to 
avoid updated technology.
    Similarly, the reduction in air contaminants exemption under R307-
401-12 applies by definition to sources that are decreasing emissions. 
As described above, the State believes that removing the disincentive 
through NSR Reform is likely to decrease emissions in Utah overall.
    Accordingly, EPA has concluded that adoption of this SIP revision 
will maintain or improve air quality and meets the requirements of 
section 110(l).
2. Section 193
    a. Summary of Comments Regarding Section 193:
    Section 193 of the CAA states (in relevant part) that ``[n]o 
control requirement in effect, or required to be adopted by an order, 
settlement agreement, or plan in effect before November 15, 1990, in 
any area which is a nonattainment area for any air pollutant may be 
modified after November 15, 1990, in any manner unless the modification 
insures equivalent or greater emission reductions of such air 
pollutant.'' NRDC states that ``[t]he same Utah provisions'' discussed 
earlier in its comment violate Section 193. NRDC argues that NSR is a 
control requirement and thus the requirements of Section 193 apply to 
the NSR rules at issue in the Utah SIP revision. NRDC further alleges 
that neither Utah nor EPA has determined that Utah's revisions will 
ensure equivalent or greater emissions reductions; to the contrary, 
NRDC alleges that ``the modifications ensure that emissions will not be 
reduced as much as under the preexisting rules.''
    b. EPA Response to Section 193-Related Comments:
    Utah's NSR Reform rule is focused on the major source permitting 
requirements in attainment areas (PSD permitting program). It does not 
alter permitting or control requirements for pollutants for which the 
area is designated nonattainment, and therefore is not subject to 
Section 193. NSR reform in nonattainment areas will be dealt with in a 
future rulemaking. Furthermore, as discussed above, the overall effect 
of Utah's revisions is expected to be neutral or beneficial. Thus, even 
if Section 193 were applicable, Utah's revision would satisfy Section 
193 for the same reason that it satisfies Section 110(l).

II. Final Action

A. Rules To Approve Into the Utah SIP

    EPA is taking final action 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 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'' shall be changed to ``EPA 
Administrator:'' 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), 52.21(p)(2), and 
51.166(q)(2)(iv).
    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 replace 
``within a specified time period'' in 40 CFR 51.166(q)(1) with ``within 
30 days of receipt of the PSD permit application.''
    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 taking final action on approval of the September 15, 
2006 submitted revision R307-110-9 (``Section VIII, Prevention of 
Significant Deterioration of the Utah Air Quality Rules'') to indicate 
that the most currently amended version is March 8, 2006. 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 approving 
the March 8, 2006 version of Section VIII into the SIP to 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 requirements for PSD programs in 40 CFR 
51.166, 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 and R307-110-9 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.

[[Page 41716]]

B. Rules To Disapprove and Therefore Not Incorporate Into the Utah SIP

    Utah has adopted a specific definition of ``Major Source Baseline 
Date,'' found at R307-405-3(3)(a)(i), in its revised PSD rule. This 
definition deviates from the definition found in 40 CFR 52.21(b)(14) 
and the corresponding requirement for state PSD programs at 
51.166(b)(14). Utah's definition specifies that the major source 
baseline date for particulate matter 10 microns in diameter or less 
(PM10) 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 requirement for State 
programs at 40 CFR 51.166(b)(14) specifies January 6, 1975 as the major 
source baseline date for particulate matter, and the current EPA-
approved SIP for Utah also specifies January 6, 1975 as the major 
source baseline date for PM-10 for the entire State (refer to Utah's 
SIP-approved rule R307-101-2 ``Definitions''). EPA is not aware of any 
authority for it to approve into a SIP a different major source 
baseline date other than January 6, 1975. Further, we note there is no 
provision in the CAA for using a different date if an area was in a 
legally designated non-attainment status on January 6, 1975. EPA is 
taking final action 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.

C. Scope of Action

    We are taking final action 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''). EPA is taking final action 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.
    Utah has not demonstrated authority to implement and enforce these 
rules within ``Indian country'' as defined in 18 U.S.C. 1151.5. 
Therefore, this SIP approval does not extend to ``Indian country'' in 
Utah.\3\ See CAA sections 110(a)(2)(A) (SIP shall include enforceable 
emission limits), 110(a)(2)(E)(i) (State must have adequate authority 
under State law to carry out SIP), and 172(c)(6) (nonattainment SIPs 
shall include enforceable emission limits). This is consistent with 
EPA's previous approval of Utah's PSD program, in which EPA 
specifically disapproved the program for sources within Indian 
Reservations in Utah because the State had not shown it had authority 
to regulate such sources. See 40 CFR 52.683(b). It is also consistent 
with EPA's approval of Utah's title V air operating permits program. 
See 61 FR 64622, 64623 (December 6, 1996) (interim approval does not 
extend to Indian country); 66 FR 50574, 50575 (October 4, 2001) (full 
approval does not extend to Indian country).
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    \3\ ``Indian country'' is defined under 18 U.S.C. 1151 as: (1) 
All land within the limits of any Indian reservation under the 
jurisdiction of the United States Government, notwithstanding the 
issuance of any patent, and including rights-of-way running through 
the reservation, (2) all dependent Indian communities within the 
borders of the United States, whether within the original or 
subsequently acquired territory thereof, and whether within or 
without the limits of a State, and (3) all Indian allotments, the 
Indian titles to which have not been extinguished, including rights-
of-way running through the same. Under this definition, EPA treats 
as reservations trust lands validly set aside for the use of a Tribe 
even if the trust lands have not been formally designated as a 
reservation. In Utah, Indian country includes, but is not limited 
to, the Northwestern Band of the Shoshoni Nation, the Paiute Indian 
Tribe of Utah, the Skull Valley Band of Goshute Indians, and the Ute 
Indian Tribe on the Uintah and Ouray Reservation.
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III. 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 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.
    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 action 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 September 13, 2011 . Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time

[[Page 41717]]

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.

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

    Dated: June 29, 2011.
James B. Martin,
Regional Administrator, Region 8.

    Part 52, chapter I, title 40 of the Code of Federal Regulations 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)(69) to read as 
follows:


Sec.  52.2320  Identification of plan.

* * * * *
    (c) * * *
    (69) On September 15, 2006 and March 7, 2008 the State of Utah 
submitted revisions to its State Implementation Plan (SIP) that 
contained revised rules pertaining to the State's Prevention of 
Significant Deterioration (PSD) preconstruction permit program.
    (i) Incorporation by reference.
    (A) The Utah Administrative Code (UAC), R307-110-9, Section VIII, 
Prevention of Significant Deterioration, is amended effective June 16, 
2006.
    (B) The Utah Administrative Code (UAC), R307-405, Permits: Major 
Sources in Attainment or Unclassified Areas (PSD), (except R307-405-
3(2)(a)(i), ``Major Source Baseline Date'') is amended effective 
September 7, 2007.

[FR Doc. 2011-17783 Filed 7-14-11; 8:45 am]
BILLING CODE 6560-50-P