[Federal Register Volume 78, Number 113 (Wednesday, June 12, 2013)]
[Proposed Rules]
[Pages 35181-35189]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-13979]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2013-0395; FRL-9823-5]


Approval and Promulgation of Air Quality Implementation Plans; 
Utah; Revisions to Utah Administrative Code--Permit: New and Modified 
Sources

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: EPA is proposing to partially approve and partially disapprove 
State Implementation Plan (SIP) revisions submitted by the State of 
Utah on September 15, 2006. The September 15, 2006 revisions contain 
new, amended and renumbered rules in Utah Administrative Code (UAC) 
Title R-307 that pertain to the issuance of Utah air quality permits. 
The September 15, 2006 revisions supersedes, in its entirety, and 
replaces an October 9, 1998 submittal that initially revised provisions 
in Utah's air quality permit program. In this action, we are proposing 
to approve all but four of the SIP revisions in the September 15, 2006 
submittal. We are proposing to disapprove the State's rules, R307-401-7 
(Public Notice), R307-401-9(b) and portions of (c) (Small Source 
Exemption), R307-401-

[[Page 35182]]

12 (Reduction in Air Contaminants), and R307-410-5 (Documentation of 
Ambient Air Impacts for Hazardous Air Pollutants). We are also 
proposing to partially approve and partially disapprove R307-410-6 
(Stack Heights and Dispersion Techniques). This action is being taken 
under section 110 of the CAA.

DATES: Comments must be received on or before July 12, 2013.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2013-0395, by one of the following methods:
     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, Environmental 
Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129.
     Hand Delivery: Carl Daly, Director, Air Program, 
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-
2013-0395. 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, 
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: Kevin Leone, Air Program, Mailcode 8P-
AR, Environmental Protection Agency, Region 8, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129, (303) 312-6227, or [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. General Information
II. Background
III. What action is EPA taking?
IV. What authorities apply to EPA's proposed action?
V. EPA's Analysis of Proposed Approval Actions on SIP Revisions
VI. EPA's Analysis of Proposed Disapproval Actions on SIP Revisions
VII. 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.
    (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.
    (v) The initials NSR mean or refer to New Source Review.
    (vi) The initials SIP mean or refer to State Implementation Plan.
    (vii) The initials UAC mean or refer to the Utah Administrative 
Code.

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 
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).
    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.

[[Page 35183]]

II. Background

    Several revisions to Utah's minor source permitting program were 
originally submitted to EPA on October 9, 1998. The SIP revisions 
covered the following three areas of the State's rules: (1) R307-1-1 
(Forward and Definitions); (2) R307-1-3 (Control of Installations); and 
R307-15-6(5) (Permit Content).\1\ On September 20, 1999, Utah submitted 
a revision that renumbered the regulatory provisions in the October 9, 
1998 submittal. On September 15, 2006, Utah submitted additional 
revisions to the minor source permitting program and some of the rules 
were renumbered a second time.
---------------------------------------------------------------------------

    \1\ While the SIP submittal contains numerous rules, the three-
page Enclosure to the Governor's cover letter identifies these three 
specific rule amendments that were submitted to EPA for review and 
approval.
---------------------------------------------------------------------------

    A cross-walk table comparing the provisions from the October 9, 
1998, September 20, 1999, and September 15, 2006 submittals is included 
in the docket for this action. The September 15, 2006 submittal 
supersedes and replaces the October 9, 1998 submittal in its entirety 
and partially supersedes and replaces the September 20, 1999 submittal, 
as outlined in the cross-walk table. As explained below, we approved a 
subsequent revision of the regulations contained in Definitions 
Section, and therefore we are not taking action on R307-1-1 in this 
action. See 73 FR 51222 (September 2, 2008).
    Utah's September 15, 2006, submittal covers four groups of rules: 
(1) Revised R307-101-2 (Definitions), which we previously acted on in 
73 FR 51222; (2) added a new section R307-401 (Notice of Intent and 
Approval Order); \2\ (3) added a new section R307-410 (Permits: 
Emission Impact Analysis); \3\ and (4) renumbered rules in State rule 
section R307-413 (Permit: Exemptions and Special Provisions) to R307-
401. The permit exemptions in Utah's October 9, 1998, submittal (R307-
1-3.1.7) were renumbered by the State to R307-413 in Utah's September 
20, 1999, submittal. In the September 15, 2006 submittal, some of the 
rules which were renumbered to R307-413 were then renumbered a second 
time by the State to R307-401. The purpose of the State's SIP actions 
in the September 15, 2006 submittal was to separate minor source 
permitting and modeling requirements in Title R307 from major source 
permitting and modeling requirements in Title R307. The September 15, 
2006, submittal supersedes and replaces Utah's October 9, 1998, 
submittal; thus, by acting on the September 15, 2006, submittal we are 
also concurrently acting on the October 9, 1998 submittal.
---------------------------------------------------------------------------

    \2\ The regulations impacted in the submittal from the Notice of 
Intent and Approval Order section include the following: R307-401-1, 
R307-401-2, R307-401-3, R307-401-4, R307-401-5, R307-401-6, R307-
401-7, R307-401-8, R307-401-9, R307-401-10, R307-401-11, R307-401-
12, R307-401-13, R307-401-14, R307-401-15, R307-401-16, R307-401-17, 
R307-401-18, R307-401-19, and R307-401-20.
    \3\ The regulations impacted in the submittal from the Permits: 
Emission Impact Analysis section include the following: R307-410-1, 
R307-410-2, R307-410-3, R307-410-4, R307-410-5, and R307-410-6.
---------------------------------------------------------------------------

III. What action is EPA taking?

    The rules outlined below represent the rules submitted by Utah on 
September 15, 2006. These rules supersede and replace corresponding 
citations from Utah's September 20, 1999 and October 9, 1998 submittals 
(See Table 1--Rulemaking Crosswalk in docket).

R307-101-2 (Definitions)

    In Utah's October 9, 1998 submittal, the State requested the 
addition of the definitions ``Air Quality Related Values'' and 
``Carcinogen'' in R307-1-1 (Forward and Definitions) to the SIP. In 
Utah's September 20, 1999 submittal, R307-1-1 was renumbered to R307-
101-2. The September 15, 2006, submittal requested the deletion of two 
definitions in R307-101-2 (``Air Quality Related Values'' and 
``Significant''. In 73 FR 51222 (September 2, 2008), EPA incorporated 
by reference UAC R307-101-2 as adopted by the Utah Air Quality Board on 
February 6, 2008, effective on February 8, 2008. Therefore, our 73 FR 
51222 action superseded and replaced R307-1-1, as submitted on October 
9, 1998, and R307-101-2, as submitted on September 15, 2006. We 
approved the 2008 version of the rule into Utah's SIP on September 2, 
2008 and incorporated it by reference into the Code of Federal 
Regulations. See 73 FR 51222.'' Thus, in this proposal, we do not need 
to act on the September 15, 2006 version of R307-101-2. (see Table 1--
Rulemaking cross-walk in docket).

R307-401 (Permit: Notice of Intent and Approval Order)

    We are proposing to approve new rule R307-401-1 (Purpose). This 
rule explains that the R307-401 rules establish the application and 
permit requirements for new and modified sources. R307-401-1 states 
there are additional permitting requirements for larger sources or 
sources located in nonattainment or maintenance areas. The rule also 
states the exemptions listed in R307-401 do not affect the 
applicability of other permitting rules in the SIP.
    We are proposing to approve R307-401-2 (Definitions). We are 
proposing to approve these definitions because they are consistent with 
applicable federal rules, as described in Table 2--Definitions Cross-
walk. Additionally, the definitions have either been renumbered from 
prior State rules or contain approvable changes to the definition. (see 
Table 2--Definitions Crosswalk in docket).
    We are proposing to approve R307-401-3 (Applicability). This rule 
outlines: (1) what type of activities are applicable to the 
requirements in R307-401; (2) other sections in R307 which may 
establish additional permitting requirements; (3) how exemptions in 
R307-401 affect applicability of other requirements in R307; and (4) 
how exemptions in other sections in R307 affect applicability of 
requirements in R307-401. R307-401-3 (2)(a) and (b) contains specific 
safeguards that clarify that sources may also have additional 
permitting requirements in other permitting rules in the SIP. This rule 
is particularly significant because it clarifies that sources which are 
exempt in sections R307-401-9 through R307-401-17 cannot circumvent 
major NSR requirements.
    We are proposing to approve R307-401-4 (General Requirements). 
R307-401-4 applies to all new and modified sources, including sources 
that are exempt from the requirements to obtain an approval order. This 
rule requires: (1) control apparatus installed at the source shall be 
adequately and properly maintained; (2) under certain circumstances, 
the executive secretary may require an exempted source to submit a 
notice of intent and obtain an approval order in accordance with R307-
401-5 through R307-401-8; and (3) with certain exceptions, fuel 
combustion devices shall be replaced with low oxide of nitrogen 
burners. We are proposing to approve R307-401-4(1) and (3) because they 
comply with 40 CFR 51.160(a) and (b). Additionally, R307-401-4(2) 
complies with 40 CFR 51.160(b) because it provides a means by which the 
State or local agency can prevent an otherwise exempted source from 
violating applicable portions of the control strategy or interfering 
with attainment or maintenance of the National Ambient Air Quality 
Standards (NAAQS).
    We are proposing to approve R307-401-5 (Notice of Intent). The 
requirements in R307-401-5 contain a list of information that shall be 
included with a notice of intent submitted by any person to the State. 
The rule clarifies that the notice of intent requirements do not apply 
to R307-401-9 through R307-

[[Page 35184]]

401-17. The notice of Intent requirements outlined in R307-401-5(1) and 
(2)(a)-(k) meet the requirements of 40 CFR 51. 160(a), (c) and (e) 
because (1) the procedures allow the State or a local agency to 
determine whether the project will result in a violation of applicable 
portions of the control strategy or interfere with attainment or 
maintenance of the NAAQS; (2) the procedures provide for the submission 
to include: information on the nature and amounts of emissions to be 
emitted; the location, design, construction and operation of the 
facility, building, structure, or installation necessary for the State 
or a local agency to make a determination whether the project will 
result in a violation of applicable portions of the control strategy or 
interfere with attainment or maintenance of the NAAQS; and (3) the 
procedures provide that the owner must identify the types and sizes of 
facilities, buildings, structures, or installations which will be 
subject to review.
    We are proposing to approve R307-401-6 (Review Period). R307-401-6 
contains the deadlines and procedures applicable to the State in 
processing a notice of intent. R307-401-6(2)(b) meets the requirement 
of 40 CFR 51.160(a) because the rule provides the State or a local 
agency the opportunity to determine whether the project will result in 
a violation of applicable portions of the control strategy or interfere 
with attainment or maintenance of the NAAQS. R307-401-6(2)(b) also 
meets the requirement of 40 CFR 51. 160(b), because the rule provides a 
means for the State or a local agency can prevent an exempted source 
from violating applicable portions of the control strategy or 
interfering with attainment or maintenance of the NAAQS.
    We are proposing to disapprove R307-401-7 (Public Notice). R307-
401-7 revised Utah's public notice procedures to allow for a 10-day 
public comment period for an approval or disapproval order issued under 
R307-401-8. The rule allows for the public comment period to be 
increased to 30 days under certain conditions. We note that the public 
comment period for an approval or disapproval order currently in Utah's 
federally approved SIP is 30 days. (See R307-1-3.1.3) Federal 
regulations for Public Availability of Information found at 40 CFR 
51.161(b)(2) require at a minimum a 30-day public comment period for 
the permitting of a source, including minor source permits. In 
addition, the 30-day comment period is important to allow adequate 
opportunity for comment by other affected states, federal agencies, and 
the public.
    We are proposing to approve R307-401-8 (Approval Order). This rule 
describes the conditions that must be met before the State will issue 
and approval order. R307-401-8 is consistent with the Federal 
requirements located in 40 CFR 51.160(a) because the rule provides the 
State or a local agency the opportunity to determine whether the 
project will result in a violation of applicable portions of the 
control strategy or interfere with attainment or maintenance of the 
NAAQS. The rule is also consistent with 40 CFR 51.160(b) because the 
rule provides a means for the State or a local agency can prevent an 
otherwise exempted source from violating applicable portions of the 
control strategy or interfering with attainment or maintenance of the 
NAAQS. In addition, R307-401-8 lists additional safeguards to clarify 
that sources may also have additional permitting requirements in other 
State regulations. R307-401-8(b)(i) and (ii) is particularly 
significant because they prohibit sources from circumventing major NSR 
requirements.
    We are proposing to partially approve and partially disapprove 
R307-401-9 (Small Source Exemptions). R307-401-9 creates a de minimis 
exemption threshold from the requirement to submit a notice of intent 
and apply for an approval order prior to initiation of construction, 
modification, or relocation. There currently is no de minimis exemption 
threshold from notice of intent and approval order requirements 
approved into the Utah SIP. Section 110(l) of the CAA states that EPA 
cannot approve a SIP revision that would interfere with any applicable 
requirement concerning attainment or reasonable further progress (RFP), 
as defined in section 171 of the CAA, or any other applicable 
requirement of the CAA. The State submitted a CAA 110(l) demonstration 
of noninterference (see docket).
    R307-401-9 provides that a stationary source is exempt from the 
requirement to obtain an approval order in R307-401-5 through 8 if the 
following conditions are met: (1) Actual emissions are less than five 
tons per year of any criteria pollutant; (2) actual emissions are less 
than 500 pounds per year of any hazardous air pollutant (HAP) or less 
than 2000 pounds per year of any combination of HAPs; and (3) actual 
emissions are less than 500 pounds per year of air contaminant not 
included above and are less than 2000 pounds per year of any 
combination of air contaminant not included in above.
    We are proposing to approve all of R307-401-9, except for paragraph 
(b) and the portions of paragraph (c) that reference paragraph (b). We 
are proposing to disapprove R307-401-9(b) and the phrase ``or (b)'' in 
paragraph (c) because EPA lacks authority in an action on a SIP 
revision under CAA section 110 to approve provisions addressing 
hazardous air pollutants. Thus we are proposing to disapprove these 
specific provisions. We are proposing to approve all of R307-401-9, 
except for paragraph (b) and the portions of paragraph (c) that 
reference paragraph (b) because:
    R307-401-9 contains a safeguard that a source shall no longer be 
exempt and is required to submit a notice of intent if its actual 
emissions exceed the thresholds listed in R307-401-9(1)(a). In 
addition, sources receiving an exemption under R307-401-9 are still 
subject to the requirements located in: (1) R307-401(2)(a), which 
prevents exempt sources from circumventing major NSR requirements; (2) 
R307-401-4, which contains the general permitting requirements; (3) 
State permitting area source regulations under R307-201 through 207; 
and (4) R307 section 300 that contains the State permitting 
nonattainment and maintenance area regulations (see docket, 110(l) 
demonstration of noninterference). The exemption thresholds and the 
additional safeguards just described ensure NAAQS protection and thus 
meet the requirements of CAA 110(a)(2)(C) and 40 CFR 51.160.
    EPA's regulations at 40 CFR 51.160 do not require the issuance of a 
permit for the construction or modification of minor sources, but only 
that the SIP include a procedure to prevent the construction of a 
source or modification that would violate the SIP control strategy or 
interfere with attainment or maintenance of the NAAQS.
    EPA recognizes that, under the applicable federal regulations, 
states have broad discretion to determine the scope of their minor NSR 
programs as needed to attain and maintain the NAAQS. A state may tailor 
its minor NSR requirements as long as they are consistent with the 
requirements of CAA 110(a)(2)(C) and 40 CFR part 51.160--164. States 
may also provide a rationale for why the rules are at least as 
stringent as the 40 CFR part 51 requirements where the revisions are 
different from those in 40 CFR part 51.
    The State has shown through their CAA 110(l) demonstration that 
while sources below the de minimis exemption permit thresholds in R307-
401-9 are no longer required to undergo a case-by-case review and 
receive an

[[Page 35185]]

approval order, they are still regulated by other rules within R307-401 
and underlying statewide area source rules in Title R307.
    In addition, the de minimis level permit threshold in R307-401-9, 
which has been implemented as a state-approved rule since 1996, is 
comparable to the de minimis level threshold in many of the federally 
enforceable minor NSR programs in surrounding states such as Idaho, 
Montana, and North Dakota, and for sources covered by EPA's tribal NSR 
rule for sources located in Indian Country.
    EPA notes that we have approved several similar de minimis 
exemption provisions in other states as follows:
    a. On January 16, 2003, EPA approved a minor NSR program for the 
State of Idaho (68 FR 2217). This rule allows changes to be considered 
exempt from permitting if the source's uncontrolled potential emissions 
are less than ten percent (10%) of the NSR significant emissions rate. 
For example: 1.5 tons per year for PM10, 4 tons per year for 
volatile organic compounds (VOCs), nitrogen dioxide (NO2), 
and sulfur dioxide (SO2), and 10 tons per year for carbon 
monoxide (CO). EPA determined in this instance that states may exempt 
from minor NSR certain categories of changes based on de minimis or 
administrative necessity grounds in accordance with the criteria set 
out in Alabama Power Co. v. Costle, 636 F.2d 323 (D.C. Cir. 1979). De 
minimis sources are presumed to not have an impact and the state has 
determined that their emissions would not prevent or interfere with 
attainment of the NAAQS, even within nonattainment areas.
    b. On February 13, 2012, EPA approved a five tons per year 
potential emissions level as a de minimis threshold to be exempt from 
permitting requirements in the State of Montana (77 FR 7531). In this 
final rulemaking, EPA determined this de minimis threshold met the 
requirements of CAA section 110(a)(2)(C), 40 CFR part 51.160 and CAA 
section 110(l).
    c. On July 1, 2011, EPA finalized the tribal NSR rule (76 FR 
38748). In this rulemaking, EPA established de minimis thresholds at 
which sources are to be exempt from permitting requirements for each 
regulated NSR pollutant (see 40 CFR 49.153--Table 1) utilizing an 
allowable-to-allowable applicability test. EPA stated in this 
rulemaking that these threshold levels represent a reasonable balance 
between environmental protection and economic growth (76 FR 38758). EPA 
further recognized in designing the tribal NSR rule, that the 
overarching requirement is ensuring NAAQS protection (76 FR 38756) as 
described in CAA section 110(a)(2)(C). In order to determine that the 
sources below minor NSR permit thresholds in 40 CFR 49.153--Table 1 
would be inconsequential to attainment or maintenance of the NAAQS, EPA 
performed a national source distribution analysis (see 71 FR 48702). In 
this analysis, EPA looked at size distribution of existing sources 
across the country. Using the National Emissions Inventory (NEI), which 
includes the most comprehensive inventory of existing U.S. stationary 
point sources that is available, EPA determined how many of these 
sources fall below the proposed minor NSR thresholds (see 71 FR 48702, 
Table 2). For each pollutant, EPA found that only around 1 percent (or 
less) of total emissions would be exempt from review under the minor 
NSR program. At the same time, the thresholds would promote an 
effective balance between environmental protection and source burden 
because anywhere from 42 percent to 76 percent of sources (depending on 
the pollutant) would be too small to be subject to preconstruction 
review (76 FR 38758). Utah, which contains areas of Indian country that 
are subject to the permitting thresholds in the tribal NSR rule, has 
established generally lower exemption levels than those in the tribal 
NSR rule. In addition, as EPA explained in the tribal NSR rule, this 
will ``allow us to begin leveling the playing field with the 
surrounding state programs and will result in a more cost-effective 
program by reducing the burden on sources and reviewing authorities.'' 
(see 76 FR 38758).
    d. On May 27, 2008, EPA approved a 25 tons per year actual 
emissions level as a de minimis threshold for fossil fuel burning 
equipment to be exempt from permitting requirements in the State of 
North Dakota, and a 5 ton per year actual emissions level as a de 
minimis threshold for any internal combustion engine, or multiple 
engines to be exempt from permitting requirements (73 FR 30308). EPA 
determined the revision will not adversely impact the NAAQS or PSD 
increments (73 FR 30308).
    e. On February 1, 2006, EPA approved a 5 tons per year actual 
emissions level as a de minimis threshold to be exempt from permitting 
requirements in the State of North Carolina (see 61 FR 3584).
    We are proposing to approve R307-401-9 because: (1) R307-401-9 has 
safeguards which prevent circumvention of NSR requirements; (2) the 
State's 110(l) demonstration shows sources are still regulated by other 
rules within R307-401 and underlying statewide area source rules in 
Title R307; (3) R307-401-9 is similar to the de minimis level threshold 
in many of the federally enforceable minor NSR programs in surrounding 
states and around the country; and (4) Utah, which contains areas of 
Indian country that are subject to the permitting thresholds in the 
tribal NSR rule, has established generally lower exemption levels than 
those in the tribal NSR rule.
    We are proposing to approve R307-401-10 (Source Category 
Exemptions). R307-401-10, as submitted on September 20, 1999, was 
originally titled ``Low Oxides of Nitrogen Burner Technology''. In 
Utah's September 15, 2006 submittal, this was deleted and moved to 
R307-325; R307-401-10 was then replaced with ``Source Category 
Exemptions'' (see Table 1--Rulemaking Crosswalk).
    Sources receiving an exemption under R307-401-10 are still subject 
to the requirements located in: (1) R307-401(2)(a), which prevents 
exempt sources from circumventing major NSR requirements; (2) R307-401-
4, which contains the general permitting requirements; (3) R307-201 
through 207, which contains the State permitting area source 
regulations; and (4) R307 section 300, which contains the State 
permitting nonattainment and maintenance area regulations (see docket, 
110(l) demonstration of noninterference). The exemption thresholds and 
the additional regulatory safeguards just described ensure NAAQS 
protection and thus meet the requirements of 110(a)(2)(C) and 40 CFR 
51.160.
    We are proposing to approve R307-401-11 (Replacement-in-Kind 
Equipment). This rule applies to existing process equipment or 
pollution control equipment covered by an existing approval order or 
SIP requirement. Before equipment may be replaced using the procedures 
in this rule and in lieu of filing a notice of intent, R307-401-
11(2)(a) requires the owner or operator of a stationary source to 
submit written notification to the executive secretary. This 
notification contains a description of the replacement-in-kind 
equipment including the control capability of any control apparatus and 
demonstrations that the conditions in R307-401-11(1) are met. One of 
these conditions is R307-401-11(1)(h), which requires the source to 
demonstrate that the replacement of the control apparatus or process 
equipment does not violate any provisions of Title R307, including: 
R307-403 (New and Modified Sources in Nonattainment and Maintenance 
Areas) and R307-405 (PSD). This is further clarified in R307-401-
3(2)(a),

[[Page 35186]]

which states, ``Exemptions contained in R307-401 do not affect 
applicability or other requirements under R307-403, R307-405 or R307-
406.'' In addition, R307-401-3 indicates that the rules contained in 
R307-401 are limited to the State's minor source permitting program and 
are separate from major source regulations. These rules satisfy the 
requirements of 40 CFR 51.160(a) because R307-401-11(2)(a) provides the 
State or a local agency the opportunity to determine whether the 
project will result in a violation of applicable portions of the 
control strategy or interfere with attainment or maintenance of the 
NAAQS and 40 CFR 51.160(b) because R307-401-11(1)(h) provides a means 
for the State or a local agency can prevent an exempted source from 
violating applicable portions of the control strategy or interfering 
with attainment or maintenance of the NAAQS. These provisions provide 
important safeguards that prevent any increase that could occur as a 
result of replacement-in-kind from circumventing review under any other 
provision of the NSR program.
    R307-401-11(2)(b) states that public review is not required for the 
update of an approval order. Since replacement-in-kind under R307-401-
11 is exempt from filing a notice of intent under R307-401-5, public 
notice requirements under R307-401-7 do not apply.
    We are proposing to disapprove R307-401-12 (Reduction in Air 
Contaminants). R307-401-12(1) provides that an owner or operator of a 
stationary source of air contaminants that reduces or eliminates air 
contaminants is exempt from the approval order requirements in R307-
401-5 through R307-401-8 if the project does not increase the potential 
to emit of any air contaminant or cause emissions of any new air 
contaminant. However, the rule states in R307-401-12(1)(b) that the 
reduction in air contaminants is made enforceable through an approval 
order in accordance with R307-401-12(2). R307-401-12(2) states that the 
executive secretary will update the sources approval order or issue a 
new approval order to include the project and to make the emissions 
reductions enforceable.
    R307-401-12 does not meet the requirements of CAA 110(a)(2)(C) and 
40 CFR 51.160(a). 40 CFR 51.160(a) requires that a state or local 
agency must provide for enforceable procedures that enable it to 
determine whether a construction or modification project would result 
in a violation of the control strategy or interfere with attainment or 
maintenance of the NAAQS. As outlined above, the rules within R307-401-
12 require clarification. It is not clear to the source or to the 
public what projects under R307-401-12 would trigger approval order 
requirements in R307-401-5 through R307-401-8.
    We are proposing to approve R307-401-13 (Plantwide Applicability 
Limits). R307-401-13 provides that a plantwide applicability limit 
under R307-405-21 does not exempt a stationary source from the 
requirements in R307-401. This rule is approvable because it specifies 
that major PSD sources are not exempt from the requirements of R307-
401.
    R307-401-14 (Used Oil Fuel Burned for Energy Recovery), R307-401-15 
(Air Strippers and Soil Venting Projects) and R307-401-16 (De minimis 
Emissions From Soil Aeration Projects) were previously proposed for 
approval (see 77 FR 37859 (June 25, 2012)). Therefore, we do not need 
to act on these rules in this notice.
    We are proposing to approve R307-401-17 (Temporary Relocation). 
R307-401-17 allows temporary relocation of a stationary source for up 
to 180 days without submitting the proposal for public comment prior to 
approval or disapproval. R307-401-17 requires: (1) The executive 
secretary to ``evaluate the expected emissions impact at the site and 
(evaluate) compliance with applicable Title R307 rules as a basis for 
determining if approval for temporary relocation may be granted'' and 
(2) the owner to keep records at the site and submit the records to the 
executive secretary at the end of 180 calendar days, and provide that 
the records are made available for review. We are proposing to approve 
this rule because it meets the requirement of 40 CFR 51.160(a) because 
the rule provides the State or a local agency the opportunity to 
determine whether the project will result in a violation of applicable 
portions of the control strategy or interfere with attainment or 
maintenance of the NAAQS.
    We are proposing to approve R307-401-18 (Eighteen Month Review). 
This rule provides that approval orders issued with the provisions of 
R307-401 will be reviewed eighteen months after the date of issuance to 
determine the status of the project. If the project is not proceeding, 
the approval order may be revoked. This rule is consistent with 40 CFR 
51.160(a) because the rule provides the State or a local agency the 
opportunity to determine whether the project will result in a violation 
of applicable portions of the control strategy or interfere with 
attainment or maintenance of the NAAQS.
    We are proposing to approve R307-401-19 (Analysis of Alternatives). 
R307-401-19 requires an owner or operator of a major new source or 
major modification that is located in a nonattainment or maintenance 
area or which could impact a nonattainment or maintenance area must, in 
addition to the requirements in R307-401, submit with the notice of 
intent an adequate analysis as outlined in this rule. This rule meets 
the requirements of 40 CFR 51.160(a) and (b) because R307-401-19 
provides that an analysis, as described in this provision, must be 
submitted along with the notice of intent; the source must comply with 
all requirements in R307-401; the executive secretary shall review the 
analysis; and the analysis and the executive secretary's comments shall 
be subject to public comment as required by R307-401-7. This provision 
provides important safeguards that prevent any increase that could 
affect maintenance of the NAAQS.
    We are proposing to approve R307-401-20 (Relaxation of 
Limitations). R307-401-20 specifies that the relaxation of limitations 
provision only applies to a source or modification to be located in a 
nonattainment or maintenance area. This rule has been previously 
approved in 71 FR 7679 on February 14, 2006, into R307-401-9. In this 
rulemaking, we are proposing to approve the renumbering of the rule 
``Relaxation of Limitations'' from R307-401-9 to R307-401-20.
    EPA further notes that the comparable federal definition for 
relaxation of limitations which applies to PSD sources, located in 40 
CFR 52.21(r)(4), was incorporated by reference into the Utah SIP on 
July 15, 2011 (76 FR 41712). This rule is located in the Utah SIP at 
R307-405-19.

R307-410 (Permits: Emission Impact Analysis)

    We are proposing to partially approve and partially disapprove 
R307-401-10 (Permits: Emission Impact Analysis).
    We are proposing to approve all of R307-410, except for R307-410-5 
(Documentation of Ambient Air Impacts for Hazardous Air Pollutants); we 
are proposing to disapprove R307-410-5 because EPA lacks authority in 
an action on a SIP revision under CAA section 110 to approve provisions 
addressing hazardous air pollutants. Thus we are proposing to 
disapprove these specific provisions. We are also proposing to 
partially approve and partially disapprove R307-410-6, as explained 
below.
    These rules (R307-410) establish modeling requirements to determine 
the

[[Page 35187]]

impact of emissions from new or modified sources that require an 
approval order under R307-401. The rules are intended to ensure that 
the construction or modification project will not interfere with 
attainment or maintenance of any NAAQS as required by 40 CFR 51.160. 
These rules also establish the procedures and requirements for 
evaluating the emissions impact of hazardous air pollutants and 
procedures for establishing an emissions rate based on good engineering 
practice stack height as required by 40 CFR 51.118.
    The modeling requirements for PSD permitting are incorporated by 
reference into R307-405; however, they appear in R307-410-3 and R307-
410-4 and are not deleted from R307-410 because the same requirements 
still apply to smaller sources that are not subject to PSD rule 
requirements of R307-405. The definitions in R307-410 are deleted from 
R307-410-2 and incorporated by reference from 40 CFR 51.100 into R307-
410-2(2). All of the definitions deleted in R307-410 are located in 40 
CFR part 51.100(ff) through (kk) and (nn). The definitions of 
``Vertically Restricted Emissions Release'' and ``Vertically 
Unrestricted Emissions Release,'' which we approved for deletion from 
section R307-101-2 in our prior action (73 FR 51222) have not changed; 
they are simply being renumbered to Rule R307-410-2 because the terms 
are not used in other rules. The incorporation by reference of the 
Federal Guidelines on Air Quality Models in R307-410-3 is updated to 
reflect the most current issue at the time the rules were adopted by 
the State. For ease of use, the modeling limit for carbon monoxide in 
R307-410-4, Table 1, is specified instead of referencing another rule.
    The R307-410 provisions provide air impact analysis guidelines, 
which establish legally enforceable procedures enabling state and local 
agencies to determine whether construction or modification of a 
facility will violate applicable portions of the control strategy or 
interfere with attainment or maintenance of the NAAQS, which meets the 
requirement of 40 CFR 51.160(a).
    The R307-410-6 provisions provide that the degree of emission 
limitation required of any source for control of any air contaminant to 
include determinations made under R307-401, R307-403 and R307-405, must 
not be affected by so much of any source's stack height that exceeds 
good engineering practice or by any other dispersion technique. The 
rule also outlines who the provisions apply to. While the rule is 
generally consistent with the requirements in 40 CFR 51.164 (Stack 
Height Procedures), similar to the disapproval discussed elsewhere in 
this notice regarding the 10-day public comment period, R307-410-6 is 
missing the required public notice elements found in 40 CFR 51.164. 
Specifically, R307-410-6 is missing the requirement that ``[s]uch 
procedures must provide that before a State issues a permit to a source 
based on a good engineering practice stack height that exceeds the 
height allowed by Sec.  51.100(ii) (1) or (2), the State must notify 
the public of the availability of the demonstration study and must 
provide opportunity for public hearing on it''. Therefore, we are 
proposing to partially approve and partially disapprove this particular 
rule since the State rule omits the requirements for the State to 
notify the public of the availability of documentation of a study where 
a source exceeds the height allowed and provide an opportunity for 
public hearing.

IV. What Authorities Apply to EPA's Proposed Action

    In determining whether SIP revisions submitted by the State of Utah 
on October 15, 2006, are approvable or not approvable, EPA applies the 
following authorities.
    The CAA at section 110(a)(2)(C) requires states to include a minor 
NSR program in their SIP to regulate modifications and new construction 
of stationary sources within the area as necessary to assure the NAAQS 
are achieved. EPA's implementing regulations at 40 CFR 51.160-164 are 
intended to ensure that new source growth is consistent with 
maintenance of the NAAQS and 40 CFR 51.160(e) requires states to 
identify types and sizes of facilities which will be subject to review 
under their minor NSR program. For sources identified under 40 CFR 
51.160(e), 40 CFR 51.160(a) requires that the SIP include legally 
enforceable procedures that enable a state or local agency to determine 
whether construction or modification of a facility, building, structure 
or installation, or combination of these will result in a violation of 
applicable portions of the control strategy or interference with 
attainment or maintenance of a national standard in the state in which 
the proposed source (or modification) is located or in a neighboring 
state. 40 CFR 51.160(b) requires these procedures must include a means 
by which the state or local agency can prevent a construction or 
modification if the construction or modification will result in a 
violation of applicable portions of the control strategy or 
interference with attainment or maintenance of a national standard.
    Section 110(i) of the CAA specifically precludes states from 
changing the requirements of the SIP except through SIP revisions 
approved by EPA. SIP revisions will be approved by EPA only if they 
meet all requirements of section 110 of the CAA and the implementing 
regulations at 40 CFR part 51. See CAA section 110(l); and 40 CFR 
51.104.
    EPA recognizes that, under the applicable federal regulations, 
states have broad discretion to determine the scope of their minor NSR 
programs as needed to attain and maintain the NAAQS. The states have 
significant discretion to tailor minor NSR requirements that are 
consistent with the requirements of 40 CFR part 51.160. States may also 
provide a rationale for why their rules are at least as stringent as 
the 40 CFR part 51 requirements where their rules are different from 
those in 40 CFR part 51. For example, states may exempt from minor NSR 
certain categories of changes based on de minimis or administrative 
necessity grounds in accordance with the criteria set out in Alabama 
Power Co. v. Costle, 636 F.2d 323, 360-361 (D.C. Cir. 1979). De minimis 
sources are presumed not to have an impact and their emissions would 
not prevent or interfere with attainment of the NAAQS, even within 
nonattainment areas.
    Section 110(l) of the CAA states: ``Each revision to an 
implementation plan submitted by a State under this Act shall be 
adopted by such State after reasonable notice and public hearing. The 
Administrator shall not approve a revision to a plan if the revision 
would interfere with any applicable requirement concerning attainment 
and reasonable further progress (as defined in section 171), or any 
other applicable requirement of this chapter.''
    The states' obligation to comply with each of the NAAQS is 
considered as ``any applicable requirement(s) concerning attainment.'' 
A demonstration of noninterference is necessary to show that this 
revision will not interfere with attainment or maintenance of the 
NAAQS, including those for ozone, particulate matter, carbon monoxide 
(CO), sulfur dioxide (SO2), lead, nitrogen oxides 
(NOX) or any other requirement of the Act. EPA has 
determined that a 110(l) demonstration of noninterference is applicable 
to R307-401-9. Utah has submitted this demonstration (see docket).
    Since there are no ambient air quality standards for hazardous air 
pollutants, the area's compliance with any

[[Page 35188]]

applicable maximum achievable control technology (MACT) standards, as 
well as any federal mobile source control requirements under CAA 
sections 112 or 202(l) would constitute an acceptable demonstration of 
noninterference for hazardous air pollutants.
    Section 110(l) does not require a demonstration of noninterference 
for changes to federal requirements that are not included in the SIP. A 
revision to the SIP, however, cannot interfere with any federally 
mandated program such as a MACT standard (or related section 112 
requirements).

V. EPA's Analysis of Proposed Approval Actions on SIP Revisions

    In this proposed rulemaking, we are proposing to approve the new 
and revised rules and renumbering of rules as outlined in section III 
above and as described in Table 1--Rulemaking Crosswalk and Table 2--
Definitions Crosswalk, located in the docket for R307-101-2, R307-401 
and R307-410. We are proposing approval based on the authorities as 
outlined in section IV of this rulemaking. As explained in this 
rulemaking, the rules we are proposing to approve meet the statutory 
requirements of CAA section 110(a)(2)(C) and the regulatory 
requirements of 40 CFR 51.160.
    We also evaluated the new rule R307-401-9 using CAA section 110(l). 
Section 110(l) provides that EPA cannot approve a SIP revision if the 
revision would interfere with any applicable requirement concerning 
attainment and RFP, or any other applicable requirement of the CAA. 
Therefore, EPA will approve a SIP revision only after a state has 
demonstrated that such a revision will not interfere 
(``noninterference'') with attainment of the NAAQS, RFP or any other 
applicable requirement of the CAA.
    EPA retains the discretion to adopt approaches on a case-by-case 
basis to determine what the appropriate demonstration of 
noninterference with attainment of the NAAQS, rate of progress, RFP or 
any other applicable requirement of the CAA should entail. In this 
instance, EPA asked the State to submit an analysis showing that the 
approval of new section R307-401-9 would not violate section 110(l) of 
the CAA (see docket); this is also referred to as a ``demonstration of 
noninterference'' with attainment and maintenance under CAA section 
110(l). Based on the state's demonstration and analysis in this notice, 
we are proposing to approve portions of new rule R307-401-9, as 
outlined in Section III above.

VI. EPA's Analysis of Proposed Disapproval Actions on SIP Revisions

    We are proposing to disapprove R307-401-7 (Public Notice). This 
rule, which generally allows for a 10-day comment period, is 
inconsistent with federal regulations for Public Availability of 
Information found at 40 CFR 51.161(b)(2), which require at a minimum a 
30-day public comment period for the permitting of a source, including 
minor source permits. In addition, the 30-day comment period is 
important to allow adequate opportunity for comment by other affected 
states, federal agencies, and the public.
    We are proposing to disapprove R307-401-9 (Small Source Exemption) 
paragraph (b) and the phrase ``or (b)'' in paragraph (c). EPA lacks 
authority in an action on a SIP revision under CAA section 110 to 
approve provisions addressing hazardous air pollutants. Thus we are 
proposing to disapprove these specific provisions. If the State 
requests to withdraw these specific provisions prior to the time we 
take final action, we would not be obligated to take final action 
because these provisions would no longer be pending before the Agency 
as a SIP revision.
    We are proposing to disapprove R307-401-12 (Reduction in Air 
Contaminants). As explained in this rulemaking, R307-401-12 does not 
meet the requirements of CAA 110(a)(2)(C) and 40 CFR 51.160(a). 40 CFR 
51.160(a) requires that a state or local agency must be able to 
determine whether a construction or modification project would result 
in a violation of the control strategy or interfere with attainment or 
maintenance of the NAAQS. As outlined above, the rules within R307-401-
12 require clarification. It is not clear to the source or to the 
public what projects under R307-401-12 would trigger approval order 
requirements in R307-401-5 through R307-401-8.
    We are proposing to disapprove R307-410-5 (Documentation of Ambient 
Air Impacts for Hazardous Air Pollutants). EPA lacks authority in an 
action on a SIP revision under CAA section 110 to approve provisions 
addressing hazardous air pollutants. Thus we are proposing to 
disapprove these specific provisions. If the State requests to withdraw 
these specific provisions prior to the time we take final action, we 
would not be obligated to take final action because these provisions 
would no longer be pending before the Agency as a SIP revision.
    We are proposing to partially approve and partially disapprove 
R307-410-6 (Stack Heights and Dispersion Techniques). While the rule is 
generally consistent with the requirements in 40 CFR 51.164 (Stack 
Height Procedures), similar to the disapproval discussed elsewhere in 
this notice regarding the 10-day public comment period, R307-410-6 is 
missing the required public notice elements found in 40 CFR 51.164. 
Specifically, R307-410-6 is missing the requirement that ``[s]uch 
procedures must provide that before a State issues a permit to a source 
based on a good engineering practice stack height that exceeds the 
height allowed by Sec.  51.100(ii) (1) or (2), the State must notify 
the public of the availability of the demonstration study and must 
provide opportunity for public hearing on it''. Therefore, we are 
proposing to partially approve and partially disapprove this particular 
rule since the State rule omits the requirements for the State to 
notify the public of the availability of documentation of a study where 
a source exceeds the height allowed and provide an opportunity for 
public hearing.

VII. 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);

[[Page 35189]]

     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, 
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds, Incorporation by reference.

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

    Dated: May 30, 2013.
Shaun L. McGrath,
Regional Administrator, Region 8.
[FR Doc. 2013-13979 Filed 6-11-13; 8:45 am]
BILLING CODE 6560-50-P