Finding of Substantial Inadequacy of Implementation Plan; Call for Utah State Implementation Plan Revision, 21639-21652 [2011-9215]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 76, Number 74 (Monday, April 18, 2011)]
[Rules and Regulations]
[Pages 21639-21652]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-9215]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2010-0909; FRL-9294-9]


Finding of Substantial Inadequacy of Implementation Plan; Call 
for Utah State Implementation Plan Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Pursuant to sections 110(a)(2)(H) and 110(k)(5) of the Clean 
Air Act (CAA), EPA is finding that the Utah State Implementation Plan 
(SIP) is substantially inadequate to attain or maintain the national 
ambient air quality standards (NAAQS) or to otherwise comply with the 
requirements of the CAA and issuing a call for the State of Utah to 
revise its SIP. Specifically, the SIP includes Utah's unavoidable 
breakdown rule (rule R307-107), which exempts emissions during 
unavoidable breakdowns from compliance with emission limitations. This 
rule undermines EPA's, Utah's, and citizens' ability to enforce 
emission limitations that have been relied on to ensure attainment or 
maintenance of the NAAQS or meet other CAA requirements. EPA is 
requiring that the State revise the SIP to remove R307-107 or correct 
its deficiencies and submit the revised SIP to EPA within 18 months of 
the effective date of this final rule. If EPA finds that Utah has 
failed to submit a complete SIP revision as required by this final rule 
or if EPA disapproves such a revision, such a finding or disapproval 
will trigger clocks for mandatory sanctions and an obligation for EPA 
to impose a Federal Implementation Plan (FIP). If EPA makes such a 
finding or disapproval, mandatory sanctions will apply such that the 
offset sanction would apply 18 months after such finding or disapproval 
and highway funding restrictions would apply six months later unless 
EPA takes action to stay the imposition of the sanctions or to stop the 
sanctions clock based on the State curing the SIP deficiencies.
    In its proposed rulemaking action, EPA requested comment on whether 
it should exercise its discretionary authority under CAA section 110(m) 
to impose the highway funding restrictions sanctions in areas of the 
State that would not be subject to mandatory sanctions. EPA is 
deferring a decision on whether to impose sanctions under section 
110(m) and will consider any comments on the issue of imposing 
sanctions under section 110(m) if and when we take final action on this 
issue in the future.

DATES: Effective Date: This final rule is effective May 18, 2011.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R08-OAR-2010-0909. All documents in the docket are listed on 
the https://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 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 https://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 a.m. to 4 
p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Vanessa Hinkle, Air Program, Mailcode 
8P-AR, Environmental Protection Agency, Region 8, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129, (303) 312-6561, or hinkle.vanessa@epa.gov.

SUPPLEMENTARY INFORMATION: 

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.

[[Page 21640]]

    (iii) The initials NAAQS mean or refer to National Ambient Air 
Quality Standards.
    (iv) The initials NOX mean or refer to nitrogen oxides.
    (v) The initials PM2.5 mean or refer to particulate matter with an 
aerodynamic diameter less than or equal to a nominal 2.5 micrometers.
    (vi) The initials PM10 mean or refer to particulate matter with an 
aerodynamic diameter less than or equal to a nominal 10 micrometers.
    (vii) The initials ppm mean or refer to parts per million.
    (viii) The initials SIP mean or refer to State Implementation Plan.
    (ix) The initials SO2 mean or refer to sulfur dioxide.
    (x) The initials SSM mean or refer to startup, shutdown, and 
malfunction.
    (xi) The words State or Utah mean the State of Utah, unless the 
context indicates otherwise.
    (xii) The initials UBR mean or refer to the Utah unavoidable 
breakdown rule, R307-107.
    (xiii) The initials UDAQ mean or refer to the Utah Division of Air 
Quality, Utah Department of Environmental Quality.
    (xiv) The words 1982 Policy mean or refer to the September 28, 1982 
EPA Memorandum signed by Kathleen M. Bennett, Assistant Administrator 
for Air, Noise and Radiation, titled ``Policy on Excess Emissions 
During Startup, Shutdown, Maintenance, and Malfunctions.''
    (xv) The words 1983 Policy mean or refer to the February 15, 1983 
EPA Memorandum signed by Kathleen M. Bennett, Assistant Administrator 
for Air, Noise and Radiation, titled ``Policy on Excess Emissions 
During Startup, Shutdown, Maintenance, and Malfunctions.''
    (xvi) 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.''

Table of Contents

I. Background
II. Final Action
III. Summary of Bases for Finding of Substantial Inadequacy
IV. Issues Raised by Commenters and EPA's Responses
    A. Request for Comment Period Extension/Procedural Issues
    B. Authority and Basis for a SIP Call
    C. Sanctions
    D. Time Period for Response to SIP Call
    E. Miscellaneous Comments
V. Statutory and Executive Order Reviews

I. Background

    On November 19, 2010, we published our proposed rulemaking action 
in the Federal Register (75 FR 70888) in which we proposed to find the 
Utah SIP substantially inadequate to attain or maintain the NAAQS or to 
otherwise comply with the requirements of the CAA.\1\ We also proposed 
to issue a SIP call to require the State of Utah to revise the SIP to 
correct the inadequacies. In our proposal, we stated that, ``Utah rule 
R307-107 contains various provisions that are inconsistent with EPA's 
interpretations regarding the appropriate treatment of malfunction 
events in SIPs and which render the Utah SIP substantially 
inadequate.'' Id. at 70891. We went on to identify specific 
deficiencies in R307-107 (also known as Utah's unavoidable breakdown 
rule and sometimes referred to herein as the UBR). Id. at 70891-70893. 
In particular, we explained that the UBR: (1) Does not treat all 
exceedances of SIP and permit limits as violations; (2) could be 
interpreted to grant the Utah executive secretary exclusive authority 
to decide whether excess emissions constitute a violation; and (3) 
improperly applies to Federal technology-based standards such as New 
Source Performance Standards (NSPS) and National Emission Standards for 
Hazardous Air Pollutants (NESHAPS). We explained why we were proposing 
to find that these deficiencies in the UBR render the Utah SIP 
substantially inadequate. Id. We proposed a 12-month deadline for the 
State to respond to a final SIP call.
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    \1\ Our proposal provided detailed background information 
regarding EPA's CAA interpretations with respect to SIP malfunction 
provisions, the history of Utah rule R307-107 and relevant SIP 
actions, and our interactions with the State and others regarding 
the rule over the years. See 75 FR 70889-891. We direct the reader 
there for such background information.
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    We also proposed the order and timing of mandatory sanctions under 
CAA section 179(a) and requested comment on whether we should exercise 
our discretionary authority to impose highway funding sanctions in all 
areas of the State.
    We requested comments on all aspects of our proposed action by 
December 20, 2010. We subsequently extended the public comment period 
through January 3, 2011. See 75 FR 79327 (December 20, 2010).
    We received numerous comments. A number of commenters, particularly 
citizens and environmental groups, supported our proposed action. We 
also received a number of comments, primarily from State agencies and 
industrial facilities and groups, that were critical of our proposed 
action.

II. Final Action

    We have considered all comments submitted and prepared responses, 
which are contained in Section IV of this action, ``Issues Raised by 
Commenters and EPA's Responses.'' None of the comments has caused us to 
conclude that our proposal was unreasonable, and we are finalizing our 
action as proposed, with the exception that we are requiring that the 
State respond to the SIP call within 18 months rather than 12 months. 
Specifically, for the reasons described in our notice of proposed 
rulemaking (see 75 FR 70888) and in this action, EPA finds that the 
Utah SIP is substantially inadequate to attain or maintain the NAAQS or 
to otherwise comply with requirements of the CAA due to significant 
deficiencies created by Utah's unavoidable breakdown rule, R307-107.\2\ 
Utah's rule R307-107 improperly undermines 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. Pursuant to sections 110(a)(2)(H) and 110(k)(5) of the 
CAA, EPA is requiring that the State revise the SIP to remove R307-107 
or revise it to make it consistent with CAA requirements. Utah must 
submit a revised SIP responding to this SIP call within 18 months of 
the effective date of this final rule.
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    \2\ We provide a summary of the bases for our finding of 
substantial inadequacy in Section III of this action, ``Summary of 
Bases for Finding of Substantial Inadequacy.''
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    If Utah fails to submit a complete SIP revision that responds to 
this final SIP call, section 179(a) of the CAA provides for EPA to 
issue a finding of State failure. Such a finding will start mandatory 
18-month and 24-month sanctions clocks and a 24-month clock for 
promulgation of a FIP by EPA. The two sanctions that apply under CAA 
section 179(b) are the 2-to-1 emission offset requirement for all new 
and modified major sources subject to the nonattainment new source 
review (NSR) program and restrictions on highway funding.
    EPA issued an order of sanctions rule in 1994 (see 59 FR 39832 
(August 4, 1994), codified at 40 CFR 52.31) but did not specify the 
order of sanctions where a State fails to submit or submits a deficient 
SIP in response to a SIP call. However, as we proposed (75 FR 70893-

[[Page 21641]]

70894), we have decided that the order of sanctions specified in 40 CFR 
52.31 will apply here for the same reasons discussed in the preamble to 
that rule. Thus, if Utah fails to submit the required SIP revision, or 
submits a revision that EPA determines is incomplete or that EPA 
disapproves, the 2-to-1 emission offset requirement will apply for all 
new sources subject to the nonattainment NSR program 18 months 
following such a finding or disapproval unless the State corrects the 
deficiency before that date. The highway funding restrictions sanction 
will also apply six months after the offset sanction applies unless the 
State corrects the deficiency before that date. The provisions in 40 
CFR 52.31 regarding staying the sanctions clock and deferring the 
imposition of sanctions will also apply.
    Mandatory sanctions under section 179 of the CAA generally apply 
only in nonattainment areas. By its definition, the emission offset 
sanction applies only in areas required to have a part D NSR program, 
typically areas designated nonattainment.\3\ Section 179(b)(1) 
expressly limits the highway funding restriction to nonattainment 
areas. Additionally, EPA interprets the section 179 sanctions to apply 
only in the area or areas of the State that are subject to or required 
to have in place the deficient SIP and for the pollutant or pollutants 
the specific SIP element addresses. In this case, mandatory sanctions 
would apply in all areas designated nonattainment for a NAAQS within 
the State because Utah rule R307-107 applies statewide and applies for 
all NAAQS pollutants.
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    \3\ An exception to this, not relevant here, is areas located in 
the Ozone Transport Region, which are required to have a part D NSR 
program regardless of the area's designation. See CAA section 
184(b)(2).
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    In addition to sanctions, if EPA finds that the State failed to 
submit a complete SIP revision that responds to this SIP call or 
disapproves such revision, CAA section 110(c) would require EPA to 
promulgate a FIP no later than two years from the date of the finding 
or the disapproval if the deficiency has not been corrected.
    In its proposed rulemaking action (75 FR 70893-70894), EPA also 
requested comment on whether it should exercise its discretionary 
authority under CAA section 110(m) to impose the highway funding 
restrictions sanction in areas of the State that would not be subject 
to mandatory sanctions--i.e., areas other than nonattainment areas. EPA 
is not finalizing action on the use of such discretionary authority in 
this action. If EPA acts on the use of discretionary sanctions at a 
later date, it will fully respond to relevant comments submitted in 
response to the November 19, 2010 notice of proposed rulemaking.

III. Summary of Bases for Finding of Substantial Inadequacy

    This section provides a brief summary of the bases for our finding 
of substantial inadequacy. For further detail, please refer to our 
notice of proposed rulemaking (75 FR 70888) and our response to 
comments.
    1. R307-107-1 provides an exemption from emission limits in the 
Utah SIP and SIP-based permits for exceedances of such limits caused by 
an unavoidable breakdown--``emissions resulting from unavoidable 
breakdown will not be deemed a violation of these regulations.'' This 
generic exemption, applicable to all Utah SIP limits, precludes any 
enforcement when there is an unavoidable breakdown. Our interpretation 
of the CAA is that an exemption from injunctive relief is never 
appropriate, and that an exemption from penalties is only appropriate 
in limited circumstances.\4\ Contrary to CAA section 302(k)'s 
definition of emission limitation, the exemption in the UBR renders 
emission limitations in the Utah SIP less than continuous and, contrary 
to the requirements of CAA sections 110(a)(2)(A) and (C), undermines 
the ability to ensure compliance with SIP emissions limitations relied 
on to achieve the NAAQS and other relevant CAA requirements at all 
times. Therefore, the UBR renders the Utah SIP substantially inadequate 
to attain or maintain the NAAQS or to comply with other CAA 
requirements, such as CAA sections 110(a)(2)(A) and (C) and 302(k), CAA 
provisions related to prevention of significant deterioration (PSD) and 
nonattainment NSR permits (sections 165 and 173), and provisions 
related to protection of visibility (section 169A).
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    \4\ As we explain in our response to comments, the UBR lacks 
criteria that are sufficiently detailed or robust to ensure that 
penalties are available at all appropriate times.
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    2. R307-107-1 also applies to Federal technology-based standards 
like the NSPS and NESHAPS that Utah has incorporated by reference to 
receive delegation of Federal authority. To the extent any exemptions 
from these technology-based standards are warranted for malfunctions, 
the Federal standards contained in EPA's regulations already specify 
the appropriate exemptions. No additional exemptions (or criteria for 
deciding whether an applicable exemption applies) are warranted or 
appropriate. Thus, the Utah SIP is substantially inadequate because 
R307-107-1 improperly provides an exemption and criteria not contained 
in and not sanctioned by the delegated Federal standards.
    3. R307-107-2 requires the source to submit information regarding 
an unavoidable breakdown to the executive secretary of Utah's Air 
Quality Board (UAQB) and indicates that the information ``shall be used 
by the executive secretary of the UAQB in determining whether a 
violation has occurred and/or the need of further enforcement action.'' 
This provision appears to give the executive secretary exclusive 
authority to determine whether excess emissions constitute a violation 
and thus to preclude independent enforcement action by EPA and citizens 
when the executive secretary makes a non-violation determination. This 
is inconsistent with the enforcement structure under the CAA, which 
provides enforcement authority not only to the States, but also to EPA 
and citizens. Because a court could interpret section R307-107-2 as 
undermining the ability of EPA and citizens to independently exercise 
enforcement discretion granted by the CAA, it is substantially 
inadequate to comply with CAA requirements related to enforcement. 
Because it undermines the envisioned enforcement structure, it also 
undermines the ability of the State to attain and maintain the NAAQS 
and to comply with other CAA requirements related to PSD, visibility, 
NSPS, and NESHAPS. Potential EPA and citizen enforcement provides an 
important safeguard in the event a State cannot or does not enforce CAA 
violations and also provides additional incentives for sources to 
design, operate, and maintain their facilities so as to meet their 
emission limits. Thus, R307-107-2 renders the SIP substantially 
inadequate to attain or maintain the NAAQS or otherwise comply with the 
CAA.

IV. Issues Raised by Commenters and EPA's Response

A. Request for Comment Period Extension/Procedural Issues

    (a) Comment: Two comment letters requested an extension of the 
comment period of up to 60 days. Other commenters did not specifically 
request an extension, but stated that they believed the comment period 
was too short. Some commenters complained that the proposal was issued 
without stakeholder input.
    Response: We considered the requests for an extension of the 
comment period and extended the original 30-day public comment period 
from December 20,

[[Page 21642]]

2010 to January 3, 2011 (see 75 FR 79327 (December 20, 2010)), 
providing a total of 45 days to submit comments. The comment period was 
sufficient to provide a reasonable opportunity to comment on our 
proposed action given its scope. We note that section 307(h) of the CAA 
specifies a 30-day period as a minimum comment period for rulemaking 
actions under the CAA, except for certain specified provisions (all of 
which waive notice-and-comment rulemaking requirements). We typically 
provide a 30-day comment period for SIP-related actions. Neither the 
CAA nor the Administrative Procedure Act requires a stakeholder process 
before or during rulemaking to issue a SIP call.
    (b) Comment: A commenter asserts that EPA's notice is defective 
because it fails to provide interested parties with sufficient notice 
of facts, policies and case law relevant to the proposed finding. 
Interested parties cannot understand the bases for EPA's proposed rule 
and thus cannot participate and comment in a meaningful way. EPA needs 
to correct the deficiencies in the notice and re-propose.
    Response: As described more fully elsewhere in our response to 
comments, we explained the bases for our finding of substantial 
inadequacy and SIP call in our proposed rulemaking action. See 75 FR 
70891-70893.
    (c) Comment: A commenter asserts that it cannot provide meaningful 
comments and analysis of the proposed rule because EPA has not 
responded to the commenter's appeal seeking documents under the Freedom 
of Information Act (FOIA).
    Response: We disagree that our actions under the FOIA are relevant 
to the validity of our rulemaking action. In this case, we clearly 
explained the bases for our proposed action, and made available in our 
rulemaking docket all documents we considered in issuing the proposal. 
The commenter had the same reasonable opportunity to comment on our 
proposal as any other commenter and provided substantive comments.
    We note that we responded to the commenter's FOIA request on June 
7, 2010, providing three compact discs containing over 1,000 pages of 
documents. We only withheld documents we determined were privileged 
(and thus exempt from disclosure).

B. Authority and Basis for a SIP Call

    (a) Comment: The proposal is inconsistent with section 110 of the 
CAA. Commenters assert that EPA's authority to issue a SIP call under 
CAA section 110(k)(5) is limited to if the Administrator finds the 
applicable implementation plan for an area is substantially inadequate 
to attain or maintain the relevant NAAQS or to otherwise comply with 
any requirement of that chapter. Commenters assert that EPA has made no 
showing or disclosure of relevant facts that the UBR is substantially 
inadequate to protect the NAAQS with respect to CAA sections 
110(a)(2)(H) and 110(k)(5). Commenters state that the finding of 
substantial inadequacy must be clearly stated and that the 
Administrative Record must present facts which support the SIP call. 
Commenters state that EPA's docket did not identify any measured or 
modeled impact on attainment or maintenance of a NAAQS due to excess 
emissions resulting from an unavoidable breakdown. Further, EPA did not 
provide any empirical information to support its reasoning as to why 
the rule is not working.
    Response: The SIP call is consistent with CAA sections 110(a)(2)(H) 
and 110(k)(5). We proposed to find the UBR substantially inadequate in 
our NPR and are finalizing that determination here. We explained the 
bases for our proposed finding. See 75 FR 70891-70893. As we indicated 
in our proposal, SIPs, including the Utah SIP, rely on adoption and 
enforcement of emission limits to attain and maintain the NAAQS, 
protect PSD increments, protect visibility in national parks and 
wilderness areas, and meet other CAA requirements. See 75 FR 70891. The 
integrity of the SIP is maintained and protection is ensured as long as 
the limits are met. Consistent with this premise, the CAA and our 
regulations require that SIP limits be enforceable. For example, as 
noted in our proposal (see 75 FR 70892), CAA section 110(a)(2)(A) 
requires each SIP to include enforceable emission limitations necessary 
or appropriate to meet the CAA's applicable requirements. CAA section 
110(a)(2)(C) requires that each SIP include a program to ``provide for 
the enforcement of the measures'' described in section 110(a)(2)(A). 
Section 302(k) defines emission limitation as a requirement established 
by a State or EPA that ``limits the quantity, rate, or concentration of 
emissions of air pollutants on a continuous basis.'' These requirements 
are intended to ensure attainment and maintenance of the NAAQS, 
protection of increments, and protection of visibility at all times, 
not just occasionally or intermittently. The enforceability of the SIP 
is fundamental to the SIP's adequacy under the CAA.
    The UBR provides an exemption from emission limits in the Utah SIP 
(and permits) for excess emissions caused by an unavoidable breakdown--
``emissions resulting from unavoidable breakdown will not be deemed a 
violation of these regulations.'' See R307-107-1. Our longstanding view 
is that all exceedances are violations and must be treated as such by 
the SIP. See, e.g., our 1982, 1983, and 1999 Policies; 42 FR 58171 
(November 8, 1977). This treatment is necessary because it encourages 
sources to act responsibly in taking necessary measures to ensure 
compliance with emissions limits, preserves the potential for 
injunctive relief, preserves the potential for penalties, except in 
limited circumstances, and is consistent with the notion that 
protection of health under the CAA is not a sometime requirement. It is 
also consistent with CAA 302(k)'s definition of emission limitation as 
a requirement limiting emissions on a continuous basis. The UBR 
precludes any enforcement when there is an unavoidable breakdown. It 
thus renders emission limitations in the Utah SIP less than continuous 
and, contrary to the requirements of sections 110(a)(2)(A) and (C), 
undermines the ability to ensure compliance with emissions limitations 
and the NAAQS and other relevant CAA requirements at all times. 
Therefore, the UBR renders the Utah SIP substantially inadequate to 
attain or maintain the NAAQS or to comply with other CAA requirements.
    We also explained in our proposal that R307-107-2 appears to give 
the executive secretary of the UAQB exclusive authority to determine 
whether excess emissions have been caused by an unavoidable breakdown 
and, thus, whether they constitute a violation. R307-107-2 provides 
that information submitted by a source ``shall be used by the executive 
secretary in determining whether a violation has occurred and/or the 
need of further enforcement action.'' We explained that this provision 
is inconsistent with the enforcement structure of the CAA, which 
provides independent authority to EPA and citizens to enforce SIP and 
other CAA emission limits. See 75 FR 70892. We concluded that, because 
a court could interpret R307-107-2 as undermining the ability of EPA 
and citizens to independently exercise enforcement discretion granted 
by the CAA, it is inconsistent with CAA requirements related to 
enforcement and, thus, renders the SIP substantially inadequate. 
Preclusion of EPA and citizen enforcement could make it impossible to 
penalize source noncompliance (where the State may have erroneously 
concluded that

[[Page 21643]]

exceedances were caused by an unavoidable breakdown) or gain source 
compliance through injunctive relief. Also, potential preclusion of EPA 
and citizen enforcement reduces the incentive for sources to comply 
because it reduces the likelihood of independent evaluation of 
unavoidable breakdown claims by a court in an enforcement action 
brought by EPA or citizens.
    The thrust of several comments is that we have not presented facts 
or empirical evidence that the UBR is not working or that shows any 
measured or modeled impact on attainment or maintenance of a NAAQS due 
to excess emissions resulting from an unavoidable breakdown. As we 
indicated in our proposal (see 75 FR 70892), we need not show a direct 
causal link between any specific unavoidable breakdown excess emissions 
and violations of the NAAQS to conclude that the SIP is substantially 
inadequate. It is our interpretation that the fundamental integrity of 
the CAA's SIP process and structure is undermined if emission limits 
relied on to meet CAA requirements can be exceeded without potential 
recourse by any entity granted enforcement authority by the CAA. We are 
not restricted to issuing SIP calls only after a violation of the NAAQS 
has occurred or only where a specific violation can be linked to a 
specific excess emissions event. It is sufficient that emissions limits 
to which the unavoidable breakdown exemption applies have been, are 
being, and will be relied on to attain and maintain the NAAQS and meet 
other CAA requirements. Nor are we required to wait for a judge to rule 
in a specific enforcement action that R307-107-2 has a preclusive 
effect on EPA or citizen enforcement to determine that the provision is 
inconsistent with the CAA and renders the SIP substantially 
inadequate.\5\
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    \5\ EPA has previously issued SIP calls to correct deficiencies 
related to SIP enforceability. For example, EPA issued SIP calls in 
the 1990s to require States to revise their SIPs to allow for use of 
any credible evidence in enforcement actions with respect to SIP 
emissions limits. See 62 FR 8314, 8327 (February 24, 1997).
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    Nonetheless, we note the following:
    1. Several counties along the Wasatch Front in Utah (which includes 
the largest population centers in the State) are designated 
nonattainment for PM10, PM2.5, and 
SO2, and some have recorded violations of the 2008 0.075 ppm 
ozone NAAQS as well. The Wasatch Front is subject to severe wintertime 
inversions, and several commenters noted that Salt Lake County has at 
times experienced some of the worst air quality in the country. 
Exceedances of emission limitations due to unavoidable breakdowns 
increase pollutant levels in the air in these nonattainment areas, 
exacerbating pollution there.\6\
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    \6\ In 2005, the State submitted a maintenance plan for 
PM10 for Salt Lake County. The State's dispersion 
modeling, which we proposed to disapprove because of flaws, 
projected values very close to the 150 [mu]g/m\3\ 24-hour NAAQS at 
the North Salt Lake monitor. If the State had used assumptions we 
had proposed, the projected values would have been higher. 
Malfunction emissions are of particular concern where modeling 
predicts values just under the NAAQS.
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    2. Our experience related to refineries, power plants, and other 
sources indicates that potential emissions during malfunctions when 
normal processes or pollution controls are bypassed can be very high, 
far exceeding SIP limits. For example, data submitted by Holly Refining 
(Holly) in Woods Cross, Utah, to the State of Utah indicate that Holly 
flared nearly 11,000 pounds of SO2 in a 9-hour period during 
a claimed breakdown event in June 2006 and thousands of pounds during 
other claimed breakdown events of varying duration (some on the order 
of one hour) between 2006 and 2010. By way of comparison, the January 
12, 2010 permit limit for Holly's SRU tail gas incinerator is 1.6 tons 
(3,200 pounds) of SO2 per day.\7\ During malfunctions, 
refineries in the Billings, Montana, area sometimes flared thousands of 
pounds of SO2 over a two- or three-hour period, whereas the 
State had modeled attainment of the 3-hour SO2 NAAQS based 
on a routine flare emissions limit of 150 pounds per three hours. If 
Montana had modeled the higher emissions, other emission limits would 
have had to have been greatly curtailed for the area to demonstrate 
attainment of the NAAQS. Our experience indicates that the flare 
emissions at Holly and in Montana are not unique. See, e.g., EPA 
Enforcement Alert, Volume 3, Number 9, October 2000, ``Frequent, 
Routine Flaring May Cause Excessive, Uncontrolled Sulfur Dioxide 
Releases,'' which we have included in the docket for this action. 
Similarly, our experience indicates that power plant emissions during 
malfunctions can greatly exceed emissions during routine operations.
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    \7\ In its 2005 SIP submittal for PM10, the State 
proposed a combined SO2 emission limit for Holly, which 
included all external combustion process equipment and all gas-fired 
compressor drivers, of 4.7 tons per day.
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    3. A report by the Environmental Integrity Project, which we 
included in the record for our notice of proposed rulemaking, also 
indicates that malfunction emissions can dwarf SIP and permit emissions 
limits. See ``Gaming the System,'' August 2004, docket no. EPA-R08-OAR-
2010-0909-0042, pages 2, 5-9. See also, EPA Enforcement Alert cited 
above, p. 2.
    We also proposed other bases for our finding of substantial 
inadequacy. As we indicated in our notice of proposed rulemaking, the 
UBR not only applies to SIP limits, but also to permit limits and 
national technology-based standards like the NSPS and NESHAPS. See 75 
FR 70892.
    This means a source could use the provisions of R307-107 to claim 
an exemption from best available control technology (BACT) or lowest 
achievable emission rate (LAER) limits in a major source permit. We 
have consistently interpreted the Act to not allow for outright 
exemptions from BACT limits, and the same logic applies to LAER limits. 
See, e.g., 1977 memorandum entitled ``Contingency Plan for FGD Systems 
During Downtime as a Function of PSD,'' from Edward E. Reich to G.T. 
Helms and January 28, 1993 memorandum entitled ``Automatic or Blanket 
Exemptions for Excess Emissions During Startup and Shutdowns under 
PSD,'' from John B. Rasnic to Linda M. Murphy. As noted, in order to 
ensure non-degradation of air quality at all times under the PSD 
program and protection of the NAAQS at all times, it is necessary for a 
source to comply with its permit limits at all times.
    To the extent any exemptions from the NSPS or NESHAPS are 
warranted, the Federal standards contained in EPA's regulations already 
specify the appropriate exemptions. See, e.g., 40 CFR 60.48Da(c).\8\ No 
additional exemptions or criteria are warranted or appropriate. See, 
e.g., 40 CFR 60.10(a); 40 CFR 63.12(a)(1); and the 1999 Policy, 
Attachment, at 3.\9\ Furthermore, in Sierra Club v. EPA, 551 F.3d 1019 
(DC Cir. 2008), the DC Circuit determined that exemptions from 
compliance with CAA section 112 Maximum Achievable Control Technology 
(MACT) standards during periods of SSM were inconsistent with CAA 
section 302(k), which requires continuous compliance with emission 
limits. Thus, R307-107-1 is substantially inadequate because it 
improperly provides an exemption and grants discretion to the Utah 
executive secretary not contained in and not sanctioned by the 
delegated Federal standards.
---------------------------------------------------------------------------

    \8\ Some NSPS do not provide any relief during SSM. For example, 
the SO2 and NOX limits under part 60, subpart 
Db, apply at all times. See 40 CFR 60.45b(a) and 60.46b(a).
    \9\ As EPA noted in the 1999 Policy, ``to the extent a state 
includes NSPS or NESHAPS in its SIP, the standards should not 
deviate from those that were federally promulgated. Because EPA set 
these standards taking into account technological limitations, 
additional exemptions would be inappropriate.''

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[[Page 21644]]

    (b) Comment: Commenters state that EPA is incorrect in its 
interpretation and reliance on a number of court decisions used in part 
to justify the SIP Call. Commenters indicate that Michigan DEQ v. 
Browner and Arizona Public Service Co. v. EPA are not relevant. 
Commenters state that EPA fails to mention other cases, such as Sierra 
Club v. Georgia Power, which commenters allege are more on point and do 
not support EPA's proposed SIP call. Commenters also criticize EPA's 
citation of Sierra Club v. EPA, and claim that EPA's ``broad 
interpretation'' is at odds with a July 2009 letter from Adam Kushner 
to industry.
    Response: Our action is based on our longstanding interpretation of 
the CAA, which is reflected in our 1999 and earlier policy statements, 
among other locations. As we noted in our proposal (see 75 FR 70890), 
Arizona Public Service Co. v. EPA, 562 F.3d 1116, 1129 (10th Cir. 2009) 
held that our 1999 Policy was a ``reasonable interpretation of the 
Clean Air Act.'' The court in Michigan DEQ v. Browner, 230 F.3d 181, 
186 (6th Cir. 2000) similarly found that EPA's interpretation of 
section 110, as explained in the 1982 and 1983 Policies, was reasonable 
and held that ``EPA reasonably concluded that Michigan's proposed SIP 
revision did not meet the requirements of the CAA.''
    Contrary to commenters' arguments, these cases are relevant to our 
action. The courts agreed with EPA that it is not appropriate under CAA 
section 110 to provide or approve an outright exemption from SIP 
emission limitations, and the Michigan DEQ court upheld EPA's 
determination that Michigan's defective SSM revisions did not meet the 
requirements of the CAA.
    Commenters suggest that these cases are irrelevant because they 
didn't involve a SIP call. However, if, as these courts held, EPA's 
interpretation is reasonable--that a malfunction provision that 
provides an exemption from an emission limit does not meet the minimum 
requirements of CAA section 110--then logic leads to the conclusion 
that the provision is substantially inadequate to meet section 110's 
requirements with respect to SIP compliance and enforceability.
    EPA's past approval of a provision that fails to meet the minimum 
requirements of the Act does not render the provision compliant, 
something EPA plainly acknowledged in its various policy statements 
over the years. The SIP call provisions of the Act provide EPA with one 
of the only means to revisit SIP decisions that may have been wrong or 
ill-considered, or that have been brought into greater focus with the 
passage of time and development of relevant knowledge and case law.
    Contrary to commenters' assertion, we did refer to Sierra Club v. 
Georgia Power Co. in our proposal at 75 FR 70892, n. 7, but 
inadvertently omitted the case name. We disagree that the case ``is 
more analogous'' or ``contradicts EPA's current interpretation.'' The 
case merely held that EPA's 1999 policy did not change the existing 
Georgia SIP, a proposition we agree with and have acted in accordance 
with here. See EPA's December 5, 2001 clarification of the 1999 Policy, 
which is in the docket. If we thought the policy trumped the approved 
SIP, there would be no need to issue a SIP call now. As Sierra Club v. 
Georgia Power Co. suggested, we are issuing a SIP call to ensure that 
the Utah SIP meets the minimum requirements of the CAA. See 443 F.3d 
1346, 1355 (11th Cir. 2006).
    Regarding Sierra Club v. EPA, 551 F.3d 1019 (DC Cir. 2008), while 
we did not cite the case as the main basis for our SIP call, we remain 
convinced it is relevant even though it addressed the hazardous air 
pollutant (HAP) regulations. In particular, the court significantly 
relied on section 302(k)'s definition of emission standard (as a 
requirement that limits the quantity, rate, or concentration of 
emissions of air pollutants on a continuous basis) to reach its 
ultimate holding disallowing EPA's exceptions from the MACT standards 
and attempted reliance on the general duty to minimize emissions. As 
with MACT standards, there is no indication that Congress intended 
compliance with NAAQS, or compliance with emission limits relied on to 
attain and maintain the NAAQS, be anything less than continuous. Also, 
we disagree with the comment that the UBR does not provide an express 
exemption from SIP and other emission limits. The UBR states that 
``emissions resulting from an unavoidable breakdown will not be deemed 
a violation of these regulations.'' This is an exemption. The 
provisions in the UBR requiring that an owner/operator take 
``reasonable'' measures to reduce emissions resulting from an 
unavoidable breakdown are analogous to the general duty provisions in 
EPA's MACT provisions. The Sierra Club court found these general duty 
requirements were not a substitute for a 112 emission standard. Here, 
we find the emissions minimization requirements in the UBR are not a 
substitute for continuously applicable emission limitations that 
support attainment and maintenance of the NAAQS, and protection of PSD 
increments and visibility.
    We also disagree that our views contradict the views Adam Kushner 
(EPA's Director of the Office of Civil Enforcement) expressed in his 
July 2009 letter to industry representatives. Mr. Kushner was 
delineating which MACT standards were directly affected by the court's 
ruling and how they would be affected. Mr. Kushner was not expressing 
an opinion about the import of the Court's decision for other types of 
emission standards and limitations. We also find noteworthy the 
following language from Mr. Kushner's letter: ``Although these 
provisions [source-category specific SSM provisions] will remain in 
effect following the issuance of the mandate in Sierra Club, EPA 
recognizes that the legality of such source category-specific SSM 
provisions may now be called into question, and EPA intends to evaluate 
them in light of the court's decision.'' EPA has since revised or 
proposed to revise several MACT standards with source-specific 
malfunction provisions to eliminate the exemptions from compliance 
during periods of malfunction. See, e.g., 76 FR 15608 (March 21, 2011); 
75 FR 54970 (September 9, 2010); 75 FR 65068 (October 21, 2010).
    (c) Comment: EPA lacks the regulatory authority to make a SIP call 
based on policy or guidance that has not become applicable law. The 
1999 Policy EPA cites as justification for the SIP Call has never been 
subjected to the legal requirements of notice and public rulemaking 
under the Administrative Procedures Act. In addition, commenters assert 
that if EPA were authorized to regulate through policy, it would be 
inappropriate in this case because the 2001 Policy \10\ clarifies that 
the 1999 Policy was not intended to alter the status of any existing 
malfunction, startup, or shutdown provisions in a SIP that had been 
approved by EPA.
    Response: The 1999 Policy reflects our interpretation of the CAA. 
We have not treated it as binding on the States or asserted that it 
changed existing SIP provisions. Instead, we have done what commenters 
argue is necessary--we have engaged in notice and comment rulemaking to 
determine whether a SIP call is appropriate in this case. Through this 
rulemaking action, we have evaluated provisions of the Utah SIP to 
determine whether they are consistent with our interpretation of the 
CAA as reflected in our policies. We provided commenters with the 
opportunity to

[[Page 21645]]

comment on the proposed SIP call and our basis for it, and are only 
finalizing the SIP call after carefully considering commenters' 
comments.\11\ To the extent some commenters may be arguing that we must 
conduct national rulemaking on our policy before we can conduct SIP 
call rulemaking with respect to a specific State malfunction provision, 
we find no basis for this assertion in the CAA. We have evaluated the 
UBR, found it substantially inadequate as specified in the CAA, and 
issued a SIP call as required. The process we have followed and the 
substance of our action are reasonable.
---------------------------------------------------------------------------

    \10\ ``Re-Issuance of Clarification--State Implementation Plans 
(SIPs): Policy Regarding Excess Emissions During Malfunction, 
Startup, and Shutdown,'' Eric Schaefer and John Seitz, December 5, 
2001.
    \11\ We have applied the interpretation reflected in our 
policies in a number of other rulemaking actions. See, e.g., the 
Billings/Laurel Federal Implementation Plan, 73 FR 21418 (April 21, 
2008); approvals of Colorado SSM rules, 71 FR 8958 (February 22, 
2006) and 73 FR 45879 (August 7, 2008); partial approval and partial 
disapproval of Texas SSM rules, 75 FR 26892 (May 13, 2010) and 75 FR 
68989 (November 10, 2010); disapproval of Michigan SSM rules, 63 FR 
8573 (February 20, 1998); approval of Maricopa County, Arizona SSM 
rules, 67 FR 54957 (August 27, 2002).
---------------------------------------------------------------------------

    Commenters emphasize our failure to specifically cite our December 
5, 2001 clarification to the 1999 Policy, in which we indicated that 
the 1999 Policy was not intended to ``alter the status of any existing 
malfunction, startup or shutdown provision in a SIP that has been 
approved by EPA.'' \12\ The 2001 clarification merely states the 
obvious well-understood principle--that an approved SIP remains the 
approved SIP unless or until EPA undertakes rulemaking action to revise 
the SIP. See General Motors v. United States, 496 U.S. 530, 540-541 
(1990). In other words, the 1999 Policy did not modify existing SIP 
provisions. Here, ``in the context of future rulemaking'' as 
contemplated by the 2001 clarification, we have considered ``the 
Guidance and the statutory principles on which the Guidance is based.'' 
See December 5, 2001 clarification.
---------------------------------------------------------------------------

    \12\ We included the 2001 clarification in the docket for our 
proposal but did not cite it specifically.
---------------------------------------------------------------------------

    One commenter argues that the 2001 clarification ``clarifies the 
1999 Policy does not apply to'' the UBR. On the contrary, because the 
UBR addresses the treatment of excess emissions resulting from an 
unavoidable breakdown, EPA's interpretations reflected in the 1999 
Policy are clearly relevant. Also, nothing in the 2001 clarification 
rejected EPA's statement in the 1999 Policy that all EPA Regions 
``should review the SIPs for their states in light of this 
clarification and take steps to insure that excess emissions provisions 
in these SIPs are consistent with the attached guidance.'' As provided 
above, the sole purpose of the 2001 clarification was to expressly 
state that the policy--standing alone--did not serve to change the 
terms of an approved SIP.
    (d) Comment: EPA's proposed SIP call is justified regardless of its 
reliance on guidance. Commenter explains that Utah's SIP cannot 
possibly assure the NAAQS and other CAA requirements will be met if the 
SIP allows a blanket exemption from emission limits, particularly 
because the effectiveness of Utah's SIP is premised upon compliance 
with emission limits.
    Response: Our SIP call relies on our interpretations of the CAA as 
reflected in numerous policy statements and actions over the years. 
Otherwise, we agree with the commenter.
    (e) Comment: Commenters assert that EPA's SIP call is inconsistent 
when compared with other EPA SSM polices such as those for NSPS in 40 
CFR 60.8(c).
    Response: Emission limitations in SIPs must ensure ambient levels 
of criteria pollutants that attain and maintain the NAAQS. For purposes 
of demonstrating attainment and maintenance, States assume source 
compliance with emission limitations at all times. Thus, provisions 
that exempt compliance during SSM undermine the integrity of the SIP. 
This principle underlies EPA's interpretations regarding SIP SSM 
provisions as reflected in our various policy statements over the 
years. For example, in our 1999 Policy we stated the following:

    ``EPA has a fundamental responsibility under the Clean Air Act 
to ensure that SIPs provide for attainment and maintenance of the 
national ambient air quality standards (``NAAQS'') and protection of 
PSD increments. Thus, EPA cannot approve an affirmative defense 
provision that would undermine the fundamental requirement of 
attainment and maintenance of the NAAQS, or any other requirement of 
the Clean Air Act. See sections 110(a) and (l) of the Clean Air Act 
* * * Accordingly, an acceptable affirmative defense provision may 
only apply to actions for penalties, but not to actions for 
injunctive relief.
* * * * *
    Generally, since SIPs must provide for attainment and 
maintenance of the national ambient air quality standards and the 
achievement of PSD increments, all periods of excess emissions must 
be considered violations. Accordingly, any provision that allows for 
an automatic exemption for excess emissions is prohibited.
* * * * *
    Automatic exemptions might aggravate ambient air quality by 
excusing excess emissions that cause or contribute to a violation of 
an ambient air quality standard.''

Similarly, in our 1982 Policy, we stated the following:

    ``The rationale for establishing these emissions as violations, 
as opposed to granting automatic exemptions, is that SIPs are 
ambient-based standards and any emissions above the allowable may 
cause or contribute to violations of the national ambient air 
quality standards.''

Thus, EPA has long said that automatic exemptions from SIP emission 
limits are not appropriate because the SIPs are for the purpose of 
ensuring health-based standards are met and maintained.\13\
---------------------------------------------------------------------------

    \13\ The 1999 Policy defines ``automatic exemption'' as ``a 
generally applicable provision in a SIP that would provide that if 
certain conditions existed during a period of excess emissions, then 
those exceedances would not be considered violations.'' The UBR 
provides such an automatic exemption: ``Except as otherwise provided 
in R307-107, emissions resulting from an unavoidable breakdown will 
not be deemed a violation of these regulations.'' In this notice, we 
also refer to this as an outright exemption or an exemption.

    NSPS and other technology-based standards, on the other hand, do 
not have to ensure attainment of the NAAQS. Instead, CAA section 
111(a)(1) provides that a new source ``standard of performance'' must 
reflect ``the degree of emission limitation achievable through the 
application of the best system of emission reduction which (taking into 
account the cost of achieving such reduction and any nonair quality 
health and environmental impact and energy requirements)'' EPA 
determines has been ``adequately demonstrated.'' Thus, historically, 
EPA has held different interpretations regarding the proper treatment 
of excess emissions during SSM under health-based standards addressed 
in SIPs and the NSPS technology-based standards.\14\ In the SIP 
context, and in the context of SIP-based permits, EPA's interpretation 
of the CAA is reasonable, and it is reasonable for EPA to require that 
Utah revise the UBR or remove it from the SIP.
---------------------------------------------------------------------------

    \14\ As we noted in our proposal and elsewhere in this action, 
however, the 2008 Sierra Club case held that EPA rules exempting 
major sources from technology-based NESHAP standards during SSM 
periods violated the CAA's requirement in section 112 that some 
standard meeting that provision's substantive requirements apply 
continuously. Sierra Club v. EPA, 551 F.3D 1019, 1028 (DC Cir. 
2008).
---------------------------------------------------------------------------

    (f) Comment: The Utah UBR has been federally-approved in the SIP 
for over 30 years. Based on empirical UDAQ monitoring since that 
approval, the Utah UBR has not contributed to a NAAQS exceedance.
    Response: As indicated above, we disagree that the commenters' 
suggested test--whether there is demonstrated proof that a specific 
excess emission event allowed under the UBR has contributed to a 
specific monitored

[[Page 21646]]

NAAQS exceedance--is the test we must use. As stated above, for 
purposes of demonstrating attainment and maintenance of the NAAQS (and 
for protecting PSD increments and visibility), States assume source 
compliance with SIP emission limitations at all times.\15\ Thus, it is 
reasonable to insist that the SIP not interfere with or undermine the 
ability to enforce compliance with SIP limitations at all times. The 
UBR fails this test for the reasons already stated.
---------------------------------------------------------------------------

    \15\ We note that dispersion modeling, based on SIP emission 
limitations, is often required to demonstrate attainment and 
maintenance of the NAAQS because modeling can predict pollutant 
levels at receptor locations throughout an area, whereas monitors 
are limited in number and location. See, e.g., 40 CFR 51.112; 40 CFR 
part 51, appendix W.
---------------------------------------------------------------------------

    In addition, even if the commenters were correct that the sole 
reasonable test is whether the UBR has contributed to a monitored 
exceedance of the NAAQS, we cannot discern whether commenters are 
saying there has never been a breakdown event on a day when a monitor 
has exceeded a NAAQS. (The commenters submitted no data regarding 
claims under the UBR.) However, based on monitored violations of the 
NAAQS, Utah has had areas designated nonattainment for various 
pollutants over the course of many years and continues to have 
nonattainment areas for PM2.5, PM10, and 
SO2. Areas in Utah will likely be designated nonattainment 
for ozone again in the future. As noted in a prior response, 
malfunction-based emissions at stationary sources can lead to large 
emissions in a short period of time, and it is reasonable to conclude 
that excess emissions during malfunctions have contributed and/or have 
the potential to contribute to NAAQS exceedances and violations in the 
urbanized areas of Utah.\16\ If EPA promulgates new, more stringent 
NAAQS, the potential for NAAQS exceedances and violations only 
increases.
---------------------------------------------------------------------------

    \16\ Based on data in EPA's Air Quality System database for the 
years 2005 through 2010, there were 171 days during which the 
PM2.5 NAAQS was exceeded at a monitor in Utah and 154 
days during which the 2006 ozone NAAQS was exceeded at a monitor in 
Utah.
---------------------------------------------------------------------------

    Several commenters emphasize that the UBR has been in the SIP for 
more than 30 years and that EPA has approved it more than once. We 
first approved the UBR in 1980 only after stating in our 1979 proposed 
rulemaking action that we could not fully approve the UBR ``because it 
exempts certain excess emissions from being violations of the Air 
Conservation Regulations'' and only after opining that exemptions 
granted under the UBR would not apply as a matter of Federal law. See 
44 FR 28688, 28691 (May 16, 1979).
    Second, our approval of the UBR preceded the 1982 and 1983 
Policies. These memoranda to EPA's Regional Administrators were issued 
in response to requests for clarification of EPA's policy regarding 
excess emissions during SSM. Presumably, these memoranda were issued 
because previously there had been some confusion about EPA's 
interpretation of the CAA on this issue. A comparison of the UBR to 
these policies reveals that the UBR did not and does not comport with 
the interpretation reflected in the policies. For example, the 1982 
Policy states that EPA can approve SIP revisions that incorporate an 
``enforcement discretion approach'' that requires the State agency to 
treat all excess emissions due to malfunctions as violations and 
commence a proceeding to notify the source of its violation. Then the 
State agency would determine whether to initiate an enforcement action 
based on specific, detailed criteria contained in the 1982 Policy. The 
UBR does not treat all excess emissions as violations, does not require 
the State to initiate a proceeding to notify the source of its 
violation, and does not contain the criteria consistent with those 
contained in the 1982 Policy. The 1982 Policy stated, ``Where the SIP 
is deficient, the SIP should be made to conform to the present 
policy.'' Contrary to the 1982 Policy's directive, the SIP was not made 
to conform to the 1982 Policy.
    We approved a revised version of the UBR in 1994 with no preamble 
discussion except to note that the Utah air rules had been renumbered 
and new requirements had been added to the SIP. See 57 FR 60149 
(December 18, 1992) and 59 FR 35036 (July 8, 1994). There is no 
indication that EPA evaluated the substance of the UBR or any of the 
other re-numbered provisions that were already included as part of the 
approved SIP. Id. We also note that the 1994 approval preceded our 1999 
Policy, which re-alerted EPA regional offices to the issues regarding 
SIP SSM rules, acknowledged that some existing SIPs included deficient 
SSM provisions, and directed the Regions to review the SIPs and seek to 
correct such provisions.
    Subsequent to EPA's issuance of the 1999 Policy, we approved 
another renumbering of the Utah SIP, including a renumbering of the 
UBR. Again, EPA did not consider the substance of the UBR, but did 
expressly reference EPA's ongoing concerns with SIP rules and 
specifically noted that Utah had committed to address those concerns, 
which included concerns with the UBR. We indicated that we would 
``continue to require the State to correct any rule deficiencies 
despite EPA's approval'' of the recodification. See 70 FR 59681, 59683 
(October 13, 2005).
    In other words, we indicated in the 1979 proposal that preceded our 
1980 approval that we could not fully approve the UBR because it 
provided exemptions from violations, and in our subsequent actions, we 
did not reanalyze the adequacy of the rule. However, we did indicate in 
our most recent re-numbering approval our intent to require the State 
to correct the deficiencies in the UBR.
    Furthermore, since EPA issued the 1999 Policy, we have been working 
with Utah in an attempt to change the UBR on a cooperative basis. As 
noted in our proposal, Utah acknowledged that the provision could 
benefit from clarification and initiated rulemaking toward that end. In 
an April 18, 2002 letter, Utah also specifically committed to address 
our concerns with the rule. See 75 FR 70891. However, Utah never 
completed a change to the UBR despite our substantial efforts to help 
Utah develop a revised rule that would meet CAA requirements. Id. The 
delay that has resulted from our attempt to reach a consensus-based 
solution does not diminish our authority to issue a SIP call.
    (g) Comment: Commenter asserts that ``there must be evidence of new 
information that would explain how Utah's SIP has somehow been 
transformed from adequate to substantially inadequate.'' Commenter 
cites Clean Air Implementation Project v. EPA, 150 F.3d 1200, 1207 (DC 
Cir. 1998) for this proposition. Commenter asserts that no such 
information has been provided.
    Response: Commenter's interpretation would preclude EPA from 
changing its interpretations and conclusions over time or from 
determining that prior approvals were a mistake, and issuing a SIP call 
on such bases. CAA sections 110(a)(2)(H) and 110(k)(5) do not constrain 
us in that way, and Clean Air Implementation Project v. EPA did not 
hold that a SIP previously found by EPA to be adequate could not be 
subsequently found to be inadequate absent evidence of new information. 
On the contrary, the case did not involve a challenge to a SIP call at 
all, and the statements the commenter refers to were dicta involving a 
completely different set of facts.\17\
---------------------------------------------------------------------------

    \17\ Clean Air Implementation Project v. EPA addressed a 
challenge to EPA's credible evidence rule and held that the 
challenge was not ripe for decision.

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[[Page 21647]]

    As a practical matter, our past decisions are not infallible. They 
reflect a decision made at a particular point in time by a particular 
set of individuals based on a particular understanding (or 
misunderstanding) of facts, policy, and law. Our 1999 Policy expressly 
recognizes this: ``A recent review of SIPs suggests that several 
contain provisions that appear to be inconsistent with this policy, 
either because they were inadvertently approved after EPA issued the 
1982-1983 guidance or because they were part of the SIP at that time, 
and have never been removed.'' 1999 Policy at 1. Further, the 1999 
Policy advised all Regions to review the SIPs for their States in light 
of the clarification and take steps to insure that excess emissions 
provisions in these SIPs are consistent with the policy. Id. at 4. 
Similarly, EPA's 1982 Policy explained that the Agency, because it had 
been inundated with proposed SIPs in the early 1970's and had limited 
experience processing them, had not given sufficient attention to the 
``adequacy, enforceability, and consistency'' of SSM provisions. Thus, 
``many SIPs were approved with broad and loosely-defined provisions to 
control excess emissions.'' 1982 Policy at 1.
    The 1999 Policy can be viewed as refreshing EPA's institutional 
memory. It reiterated and clarified EPA's longstanding interpretation 
and provided direction to EPA's regional offices to review SIPs from 
their respective States. This caused EPA Region 8 to review SIPs for 
Utah and the other States within the region. As noted in our proposal, 
several Region 8 States have submitted revisions to their SSM rules in 
response to our review, and EPA has approved revised rules for Colorado 
and Wyoming. See 75 FR 70890. Our review of the Utah rule revealed that 
it was inconsistent with CAA requirements, and we initiated sustained 
efforts to get the State to revise the rule. The State did not revise 
the rule. See 75 FR 70890-70891.
    A review of facts here indicates that EPA's 1980 approval of the 
UBR was ill-considered because even then our basic interpretation that 
all excess emissions must be treated as violations applied. As 
discussed in our proposal for this action, EPA said in its 1979 
proposal on the UBR that EPA ``may not fully approve Regulation 4.7 
because it exempts certain excess emissions from being violations of 
the Air Conservation Regulations'' but then proposed to approve the UBR 
anyway. Clearly, the regulation did not comport with EPA's 
interpretations regarding SSM provisions in SIPs. However, with almost 
no explanation, EPA justified its approval based on a conclusion that 
any exemptions granted by Utah ``are not applicable as a matter of 
federal law.'' See 44 FR 28691. This did not obviate the deficiency in 
the UBR. Also, EPA's interpretation of that time--that exemptions 
granted by Utah would not affect Federal enforcement--could be 
questioned and rejected in court. While some commenters state that 
EPA's enforcement discretion would not be affected by the Utah 
executive secretary's decision, others offer no such concession. See, 
e.g., Utah Manufacturers Association, et al., comment letter at 5 
versus Utah Industry Environmental Coalition, et al., comment letter at 
14, which are in the docket for this action. Furthermore, Phillips 
Petroleum asserted in a 1997 EPA enforcement action that Utah's non-
violation determinations under the UBR were binding on EPA.\18\
---------------------------------------------------------------------------

    \18\ In 1997, EPA initiated an enforcement action against the 
Phillips Petroleum refinery in Davis County, Utah when the State 
declined to pursue enforcement. Among other things, EPA alleged that 
Phillips had violated its one-hour emission limit contained in the 
Utah SIP for the Salt Lake County PM10 nonattainment 
area. The State, with little or no apparent analysis, decided that 
all or nearly all of the more than 1,000 exceedances EPA cited in 
its complaint against Phillips were caused by unavoidable breakdowns 
and were not violations under the UBR. Phillips alleged in pleadings 
that the State's decision precluded EPA enforcement as a matter of 
law. We disagreed with the State's decision and with