[Federal Register Volume 79, Number 25 (Thursday, February 6, 2014)]
[Rules and Regulations]
[Pages 7067-7070]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-02079]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2012-0746; FRL-9902-49-Region 8]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving changes to Utah's rule R307-107, which 
pertains to source emissions during breakdowns. Utah's prior version of 
rule R307-107 had several deficiencies related to the treatment of 
excess emissions from sources during malfunction events. On April 18, 
2011, EPA finalized a rulemaking which found that the Utah State 
Implementation Plan (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 approving these 
revisions because they correct the identified SIP deficiencies 
concerning the treatment of excess emissions during malfunctions and, 
therefore, satisfy EPA's April 18, 2011 SIP call. This final approval 
eliminates all potential clocks for sanctions and for EPA to promulgate 
a federal implementation plan (FIP) related to the April 18, 2011 SIP 
call.

DATES: This final rule is effective March 10, 2014.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R08-OAR-2012-0746. All documents in the docket are listed on 
the www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, e.g., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as

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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 
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: 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. Background
II. Response to Comments
III. Final Action
IV. 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 words State or Utah mean the State of Utah, unless the 
context indicates otherwise.
    ix. The initials UDAQ mean or refer to the Utah Division of Air 
Quality, Utah Department of Environmental Quality.

I. 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. As 
explained in more detail in that rulemaking, we evaluated R307-107 to 
determine whether it was consistent with CAA requirements for SIP 
provisions. EPA's longstanding interpretation of CAA requirements 
applicable to SIP provisions related to the treatment of excess 
emissions during startup, shutdown, and malfunction (SSM) events is 
reflected in a series of EPA guidance documents and rulemaking actions. 
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, April 18, 2011. The failure to meet fundamental CAA requirements 
for SIP provisions rendered R307-107 substantially inadequate.
    Accordingly, we issued a SIP call under CAA sections 110(a)(2)(H) 
and 110(k)(5) 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 intended to address 
the deficiencies identified in the SIP call, 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 finding of 
substantial inadequacy and SIP call in the United States Court of 
Appeals for the 10th Circuit. In particular, U.S. Magnesium argued that 
we had failed to base the finding of substantial inadequacy on specific 
factual findings concerning the impacts of the excess emissions that 
occurred during the events affected by the deficient SIP provision on 
attainment and maintenance of the NAAQS. On August 6, 2012, the 10th 
Circuit upheld EPA's finding of substantial inadequacy and 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. In this SIP revision, the State specifically eliminated the 
exemption for excess emissions during malfunction events that was 
inconsistent with fundamental requirements of the CAA for emission 
limitations in SIP provisions. The State likewise revised prior 
regulatory language that appeared to grant state personnel the 
exclusive authority to determine whether a violation had occurred, 
thereby precluding independent enforcement by EPA and citizens if the 
State made a non-violation determination. As revised, R307-107 now only 
pertains to the State's exercise of its own enforcement discretion in 
the case of violations that occur due to excess emissions during 
malfunctions, and that exercise of discretion by the State will have no 
bearing upon potential enforcement by EPA or citizens. The State's 
August 16, 2012, SIP submission thus eliminated the deficiencies in 
R307-107 and made it consistent with fundamental CAA requirements for 
SIP provisions applicable to excess emissions during malfunction 
events. Accordingly, we proposed to approve the State's revisions on 
May 9, 2013. 78 FR 27165.

II. Response to Comments

    We received one comment letter on our proposed approval from the 
organizations Western Resource Advocates and Utah Physicians for a 
Healthy Environment. The letter primarily expressed support for our 
proposed approval, but requested that the State's revised R307-107 
``include a requirement that any reports of excess emissions be posted 
on the Division of Air Quality Web site in a manner readily available 
to public review.''
    We acknowledge the commenters' support for our proposed action. 
Regarding the comment that the State's rule should require that reports 
of excess emissions be posted on the Utah Division of Air Quality 
(UDAQ) Web site, the commenters do not indicate whether they think the 
lack of such a requirement constitutes a deficiency under the CAA that 
warrants our disapproval of the rule now, or whether they would like 
the State to revise the rule in the future to provide for such posting. 
The totality of the commenters' letter suggests that they would like us 
to approve revised R307-107 now.
    Regardless of the commenters' intent, we do not find that the 
revised rule's lack of such a requirement for posting of excess 
emissions reports on a State Web site requires our disapproval of the 
revised rule. The commenters have not specified, and we are not aware 
of, a CAA or regulatory provision that specifically requires a state to 
post excess emissions reports on an internet

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Web site in order to meet SIP requirements. CAA section 110(a) 
generally requires that SIP provisions be legally and practicably 
enforceable, but such requirements long predate the advent of the 
internet. CAA section 110(a)(2)(F) only requires that emissions reports 
be available at reasonable times for public inspection. So long as the 
information in these reports is treated as emissions data, available to 
the public by other means, posting the reports on the internet is not 
necessary. While we agree that it may be helpful for a state to post 
such reports on a Web site, at this time we do not interpret CAA 
section 110(a) as requiring it. Were the State to revise R307-107 to 
include such a requirement for posting of excess emissions reports on a 
State Web site, however, this could serve to strengthen and enhance 
compliance with applicable SIP emission limits.
    We find that the revised R307-107 submitted by the State addresses 
the deficiencies we identified in our April 18, 2011 SIP call and, 
consistent with CAA section 110(l), our approval of the revised rule 
will not interfere with any applicable requirement of the CAA. Our 
approval of the revised rule will enhance the State's, our, and 
citizens' ability to enforce the Utah SIP.

III. Final Action

    For the reasons discussed in our notice of proposed rulemaking (78 
FR 27165) and in our response to comments, we are approving the 
revisions to rule R307-107 of the Utah SIP that the State submitted to 
us on August 16, 2012. We are approving these revisions because they 
correct the deficiencies identified in our April 18, 2011 SIP call. We 
wish to emphasize one point we discussed in our notice of proposed 
rulemaking. 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 revised R307-107, consistent with EPA's 
interpretations of the CAA, as not barring EPA and citizen enforcement 
of violations of applicable requirements when the State decides not to 
undertake enforcement.
    This approval eliminates all potential clocks for mandatory 
sanctions and for EPA to promulgate a FIP related to the April 18, 2011 
SIP call.

IV. 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 USC 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 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 USC 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 USC 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 USC 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 April 7, 2014. 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 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) of the 
Clean Air Act.)

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: October 23, 2013.
Howard M. Cantor,
Acting Regional Administrator, Region 8.

    40 CFR part 52 is amended to read as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart TT--[AMENDED]

0
2. Section 52.2320 is amended by adding paragraph (c)(74) to read as 
follows:


Sec.  52.2320  Identification of plan.

* * * * *
    (c) * * *
    (74) On August 16, 2012 the State of Utah submitted as a SIP 
revision a

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revised version of its breakdown rule, Utah Administrative Code (UAC) 
R307-107, which replaces the prior version of UAC R307-107.
    (i) Incorporation by reference.
    (A) Title R307 of the Utah Administrative Code, Environmental 
Quality, Air Quality, Rule R307-107, General Requirements: Breakdowns. 
Effective July 31, 2012; as published in the Utah State Bulletin on 
March 1, 2012, modified on July 1, 2012, and August 15, 2012. Note: The 
August 15, 2012 publication contains a typographical error in the title 
of Rule R307-107.

[FR Doc. 2014-02079 Filed 2-5-14; 8:45 am]
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