[Federal Register Volume 78, Number 90 (Thursday, May 9, 2013)]
[Proposed Rules]
[Pages 27165-27168]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-10934]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2012-0746; FRL-9810-9]


Approval and Promulgation of Implementation Plans; Utah; 
Revisions to Utah Rule R307-107; General Requirements; Breakdowns

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve changes to Utah's rule R307-107, 
which pertains to source emissions during breakdowns. On April 18, 
2011, EPA finalized a rulemaking which found that the Utah State 
Implementation Plan

[[Page 27166]]

(SIP) was substantially inadequate to attain or maintain the national 
ambient air quality standards (NAAQS) or to otherwise comply with the 
requirements of the Clean Air Act (CAA) because it included rule R307-
107. Concurrent with this finding, EPA issued a SIP call that required 
the State to revise its SIP by either removing R307-107 or correcting 
its deficiencies, and to submit the revised SIP to EPA by November 18, 
2012. On August 16, 2012, the State submitted to EPA revisions to R307-
107. EPA is proposing that these revisions correct the rule's 
deficiencies and, therefore, satisfy EPA's April 18, 2011 SIP call. If 
EPA finalizes its proposed approval, all sanctions clocks and the clock 
for EPA to promulgate a federal implementation plan (FIP) will end.

DATES: Comments must be received on or before June 10, 2013.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2012-0746, by one of the following methods:
     http://www.regulations.gov. Follow the on-line 
instructions for submitting comments.
     Email: [email protected].
     Fax: (303) 312-6064 (please alert the individual listed in 
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
     Mail: Carl Daly, Director, Air Program, U.S. Environmental 
Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129.
     Hand Delivery: Carl Daly, Director, Air Program, U.S. 
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129. Such deliveries are only 
accepted Monday through Friday, 8:00 a.m. to 4:30 p.m., excluding 
Federal holidays. Special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-
2012-0746. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or email. The 
www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email comment 
directly to EPA, without going through www.regulations.gov, your email 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm. For additional 
instructions on submitting comments, go to Section I. General 
Information of the SUPPLEMENTARY INFORMATION section of this document.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the Air Program, U.S. 
Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129. EPA requests that if at all possible, you 
contact the individual listed in the FOR FURTHER INFORMATION CONTACT 
section to view the hard copy of the docket. You may view the hard copy 
of the docket Monday through Friday, 8:00 a.m. to 4:00 p.m., excluding 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Adam Clark, U.S. Environmental 
Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129, (303) 312-7104, [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. General Information
II. Background
III. Revised Utah Rule R307-107 and EPA Analysis
IV. EPA's Proposed Action
V. Statutory and Executive Order Reviews

Definitions

    For the purpose of this document, the following definitions 
apply:
    i. The words or initials Act or CAA mean or refer to the Clean 
Air Act, unless the context indicates otherwise.
    ii. The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    iii. The initials FIP mean or refer to federal implementation 
plan.
    iv. The initials NAAQS mean or refer to National Ambient Air 
Quality Standards.
    v. The initials NESHAPS mean or refer to National Emission 
Standards for Hazardous Air Pollutants.
    vi. The initials NSPS mean or refer to New Source Performance 
Standards.
    vii. The initials SIP mean or refer to state implementation 
plan.
    viii. The initials SSM mean or refer to startup, shutdown, and 
malfunction.
    ix. The words State or Utah mean the State of Utah, unless the 
context indicates otherwise.
    x. The initials UAQB mean or refer to the Utah Air Quality 
Board.
    xi. The initials UDAQ mean or refer to the Utah Division of Air 
Quality, Utah Department of Environmental Quality.
    xii. The words 1999 Policy mean or refer to the September 20, 
1999 EPA Memorandum signed by Steven A. Herman, Assistant 
Administrator for Enforcement and Compliance Assurance, and Robert 
Perciasepe, Assistant Administrator for Air and Radiation, titled 
``State Implementation Plans: Policy Regarding Excess Emissions 
During Malfunctions, Startup, and Shutdown.''

I. General Information

What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
www.regulations.gov or email. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as 
CBI and then identify electronically within the disk or CD-ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments.
    When submitting comments, remember to:
    a. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).

[[Page 27167]]

    b. Follow directions--The agency may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    c. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    d. Describe any assumptions and provide any technical information 
and/or data that you used.
    e. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    f. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    g. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    h. Make sure to submit your comments by the comment period deadline 
identified.

II. Background

    On April 18, 2011, EPA published a final rulemaking in the Federal 
Register (76 FR 21639) that found that the Utah SIP was substantially 
inadequate to attain or maintain the NAAQS or to otherwise comply with 
the requirements of the CAA because it included rule R307-107. In 
particular, we explained that R307-107: (1) Did not treat all 
exceedances of SIP and permit limits as violations; (2) could have been 
interpreted to grant the Utah executive secretary exclusive authority 
to decide whether excess emissions constituted a violation; and (3) 
improperly applied to Federal technology-based standards such as New 
Source Performance Standards (NSPS) and National Emission Standards for 
Hazardous Air Pollutants (NESHAPS). We concluded that R307-107 
undermined EPA's, Utah's, and citizens' ability to enforce emission 
limitations that have been relied on in the SIP to ensure attainment 
and maintenance of the NAAQS or meet other CAA requirements. 76 FR 
21640.
    Accordingly, we issued a SIP call which required the State to 
revise its SIP by either removing R307-107 or correcting its 
deficiencies, and to submit the revised SIP to us by November 18, 2012. 
Id. We also explained that if the State failed to submit a complete SIP 
revision by November 18, 2012, or if we disapproved a submitted SIP 
revision, clocks would be triggered for mandatory sanctions and for EPA 
to promulgate a FIP. Id. at 21640-41.
    On June 17, 2011, U.S. Magnesium challenged our SIP call in the 
United States Court of Appeals for the 10th Circuit. On August 6, 2012, 
the 10th Circuit upheld EPA's SIP call.
    On August 16, 2012, the State submitted to EPA revisions to R307-
107 for the purpose of correcting the deficiencies described in the SIP 
call.

III. Revised Utah Rule R307-107 and EPA Analysis

A. The Revised Rule

    The State substantially revised and simplified R307-107 in response 
to our SIP call. The rule now contains three sections--R307-107-1, 
``Applicability and Timing,'' R307-107-2, ``Reporting,'' and R307-107-
3, ``Enforcement Discretion.''
    R307-107-1 requires the owner or operator of a source to report 
breakdowns to the director within 24 hours of the incident (R307-107-
1(1)), to be followed by a detailed written description of the incident 
and corrective program within 14 days of the start of the incident 
(R307-107-1(2)). Alternative reporting deadlines apply where emissions 
are monitored by continuous monitoring systems under R307-170, but even 
where these alternative deadlines apply, the reports must still contain 
the information required by R307-107-1(2) and R307-107-2.
    R307-107-2 requires breakdown incident reports to include the cause 
and nature of the event, estimated quantity of emissions, time of 
emissions, and other relevant evidence, including evidence that:
    1. There was an equipment malfunction beyond the reasonable control 
of the owner or operator;
    2. The excess emissions could not have been avoided by better 
operation, maintenance or improved design of the malfunctioning 
component;
    3. To the maximum extent practicable, the source maintained and 
operated the air pollution control equipment and process equipment in a 
manner consistent with good practice for minimizing emissions, 
including minimizing any bypass emissions;
    4. Any necessary repairs were made as quickly as practicable, using 
off-shift labor and overtime as needed and as possible;
    5. All practicable steps were taken to minimize the potential 
impact of the excess emissions on ambient air quality; and
    6. The excess emissions are not part of a recurring pattern that 
may have been caused by inadequate operation or maintenance, or 
inadequate design of the malfunctioning component.
    R307-107-2 also states that the owner or operator has the burden of 
proof to demonstrate the above elements.
    R307-107-3 states that the director will evaluate, on a case-by-
case basis, the information the owner or operator submits pursuant to 
R307-107-1 and 2 ``to determine whether to pursue enforcement action.''
    The version of R307-107 that was the subject of our SIP call stated 
that ``emissions resulting from unavoidable breakdown will not be 
deemed a violation of these regulations.'' This exemption, which was 
part of the reason for our SIP call, has been eliminated in the revised 
rule. The revised rule does not exempt exceedances of emissions limits 
caused by breakdowns.
    The version of R307-107 that was the subject of our SIP call 
required the source to submit information regarding an unavoidable 
breakdown to the executive secretary of Utah's Air Quality Board and 
indicated that the information would be used by the executive secretary 
to determine ``whether a violation has occurred . . .'' This provision 
was another reason for our SIP call because it appeared to give the 
executive secretary exclusive authority to determine whether excess 
emissions constituted a violation and thus to preclude independent 
enforcement action by EPA and citizens when the executive secretary 
made a non-violation determination. This problematic language, 
indicating that the State would determine whether a violation had 
occurred, has been eliminated in the revised rule. Instead, as 
expressed in R307-107-3, the director will use the submitted 
information to determine whether to pursue an enforcement action. The 
director's decision not to pursue an enforcement action does not impact 
EPA's or citizens' ability to independently pursue an enforcement 
action in response to a given violation.

B. EPA's Analysis

    EPA's interpretation is that the CAA requires that all periods of 
excess emissions, regardless of cause, be treated as violations and 
that automatic exemptions from emissions limits are not appropriate. 
This interpretation has been expressed in several documents. Most 
relevant to this action are the following: memorandum dated September 
28, 1982, from Kathleen M. Bennett, Assistant Administrator for Air, 
Noise, and Radiation, entitled, ``Policy on Excess Emissions During 
Startup, Shutdown, Maintenance, and Malfunctions'' (the 1982 
Memorandum); a clarification to that memorandum from Kathleen M. 
Bennett issued on February 15, 1983 (the 1983 Memorandum); and a 
memorandum dated September 20, 1999 entitled, ``State Implementation 
Plans: Policy Regarding Excess Emissions During

[[Page 27168]]

Malfunctions, Startup, and Shutdown,'' from Steven A. Herman, Assistant 
Administrator for Enforcement and Compliance Assurance, and Robert 
Perciasepe, Assistant Administrator for Air and Radiation (the 1999 
Memorandum).
    As explained in these memoranda, because excess emissions might 
aggravate air quality so as to prevent attainment and maintenance of 
the NAAQS and compliance with other CAA requirements, EPA views all 
periods of excess emissions as violations of the applicable emission 
limitation. Therefore, EPA will disapprove SIP revisions that 
automatically exempt from enforcement excess emissions claimed to 
result from an equipment malfunction. In addition, as made explicit in 
the 1999 Memorandum, EPA will disapprove SIP revisions that give 
discretion to a state director to determine whether an instance of 
excess emissions is a violation of an emission limitation, because such 
a determination could bar EPA and citizens from enforcing applicable 
requirements.
    Under EPA's interpretations of the CAA as set forth in the 1982, 
1983, and 1999 Memoranda, if a state chooses to address in its SIP 
violations that occur as a result of claimed malfunctions, the state 
may take two approaches. The first, the ``enforcement discretion'' 
approach, allows a state director to refrain from taking an enforcement 
action for a violation if certain criteria are met. The second, the 
``affirmative defense'' approach, allows a source to avoid civil 
penalties if it can prove that certain conditions are met. Utah's 
revised R307-107 follows the enforcement discretion approach.
    We have evaluated Utah's enforcement discretion provisions in 
revised R307-107 and find that they are consistent with EPA's 
interpretations of the CAA as described in the memoranda above. In 
particular, the revised rule contains no automatic exemption from 
emission limits, and the criteria specified in R307-107-2 that the 
State will consider in deciding whether to pursue an enforcement action 
generally parallel the criteria outlined in the 1982 and 1983 
Memoranda. In addition, revised R307-107 only addresses the State's 
exercise of its enforcement discretion and contains no language that 
suggests that a State decision not to pursue an enforcement action for 
a particular violation bars EPA or citizens from taking an enforcement 
action. Therefore, EPA interprets the rule, consistent with EPA's 
interpretations of the CAA, as not barring EPA and citizen enforcement 
of violations of applicable requirements when the State declines 
enforcement.

IV. EPA's Proposed Action

    We are proposing to approve the revisions to rule R307-107 of the 
Utah SIP that the State submitted to us on August 16, 2012. We are 
proposing that these revisions correct the deficiencies outlined in our 
April 18, 2011 SIP call. If we finalize this proposed approval, the 
mandatory sanctions clocks described in our SIP call and the clock for 
EPA to promulgate a FIP will end.

V. 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 proposed 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.

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: April 23, 2013.
Judith Wong,
Acting Regional Administrator, EPA Region 8.
[FR Doc. 2013-10934 Filed 5-8-13; 8:45 am]
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