Promulgation of State Implementation Plan Revisions; Infrastructure Requirements for the 2008 Lead, 2008 Ozone, 2010 NO2,, 24525-24536 [2016-09586]
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R08–OAR–2013–0561, FRL–9945–57–
Region 8]
Promulgation of State Implementation
Plan Revisions; Infrastructure
Requirements for the 2008 Lead, 2008
Ozone, 2010 NO2, 2010 SO2, and 2012
PM2.5 National Ambient Air Quality
Standards; Utah
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
elements of State Implementation Plan
(SIP) revisions from the State of Utah to
demonstrate the State meets
infrastructure requirements of the Clean
Air Act (Act or CAA) for the National
Ambient Air Quality Standards
(NAAQS) promulgated for ozone on
March 12, 2008, lead (Pb) on October
15, 2008, nitrogen dioxide (NO2) on
January 22, 2010, sulfur dioxide (SO2)
on June 2, 2010 and fine particulate
matter (PM2.5) on December 14, 2012.
The EPA is also proposing to approve
SIP revisions the State submitted
regarding state boards. Section 110(a) of
the CAA requires that each state submit
a SIP for the implementation,
maintenance, and enforcement of each
NAAQS promulgated by the EPA.
DATES: Written comments must be
received on or before May 26, 2016.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R08–
OAR–2013–0561 at https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or removed from Regulations.gov.
The EPA may publish any comment
received to its public docket. Do not
submit electronically any information
you consider to be Confidential
Business Information (CBI) or other
information whose disclosure is
restricted by statute. Multimedia
submissions (audio, video, etc.) must be
accompanied by a written comment.
The written comment is considered the
official comment and should include
discussion of all points you wish to
make. The EPA will generally not
consider comments or comment
contents located outside of the primary
submission (i.e., on the web, cloud, or
other file sharing system). For
additional submission methods, the full
EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
SUMMARY:
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making effective comments, please visit
https://www2.epa.gov/dockets/
commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT:
Abby Fulton, Air Program, U.S.
Environmental Protection Agency
(EPA), Region 8, Mail Code 8P–AR,
1595 Wynkoop Street, Denver, Colorado
80202–1129, (303) 312–6563,
fulton.abby@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
What should I consider as I prepare my
comments for the EPA?
1. Submitting Confidential Business
Information (CBI). Do not submit CBI to
the EPA through https://
www.regulations.gov or email. Clearly
mark the part or all of the information
that you claim to be CBI. For CBI
information on a disk or CD ROM that
you mail to the 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:
• Identify the rulemaking by docket
number and other identifying
information (subject heading, Federal
Register volume, date, and page
number);
• Follow directions and organize your
comments;
• Explain why you agree or disagree;
• Suggest alternatives and substitute
language for your requested changes;
• Describe any assumptions and
provide any technical information and/
or data that you used;
• If you estimate potential costs or
burdens, explain how you arrived at
your estimate in sufficient detail to
allow for it to be reproduced;
• Provide specific examples to
illustrate your concerns, and suggest
alternatives;
• Explain your views as clearly as
possible, avoiding the use of profanity
or personal threats; and,
• Make sure to submit your
comments by the comment period
deadline identified.
II. Background
On March 12, 2008, the EPA
promulgated a new NAAQS for ozone,
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revising the levels of the primary and
secondary 8-hour ozone standards from
0.08 parts per million (ppm) to 0.075
ppm (73 FR 16436, March 27, 2008).
Subsequently, on October 15, 2008, the
EPA revised the level of the primary and
secondary Pb NAAQS from 1.5
micrograms per cubic meter (mg/m3) to
0.15 mg/m3 (73 FR 66964, Nov. 12,
2008). On January 22, 2010, the EPA
promulgated a new 1-hour primary
NAAQS for NO2 at a level of 100 parts
per billion (ppb) while retaining the
annual standard of 53 ppb. The 2010
NO2 NAAQS is expressed as the threeyear average of the 98th percentile of the
annual distribution of daily maximum
one-hour average concentrations. The
secondary NO2 NAAQS remains
unchanged at 53 ppb (75 FR 6474, Feb.
9, 2010). On June 2, 2010, the EPA
promulgated a revised primary SO2
standard at 75 ppb, based on a threeyear average of the annual 99th
percentile of one-hour daily maximum
concentrations (75 FR 35520, June 22,
2010). Finally, on December 14, 2012,
the EPA promulgated a revised annual
PM2.5 standard by lowering the level to
12.0 mg/m3 and retaining the 24-hour
PM2.5 standard at a level of 35 mg/m3 (78
FR 3086, Jan. 15, 2013).
Under sections 110(a)(1) and (2) of the
CAA, states are required to submit
infrastructure SIPs to ensure their SIPs
provide for implementation,
maintenance and enforcement of the
NAAQS. These submissions must
contain any revisions needed for
meeting the applicable SIP requirements
of section 110(a)(2), or certifications that
their existing SIPs for PM2.5, ozone, Pb,
NO2, and SO2 already meet those
requirements. The EPA highlighted this
statutory requirement in an October 2,
2007, guidance document entitled
‘‘Guidance on SIP Elements Required
Under Sections 110(a)(1) and (2) for the
1997 8-hour Ozone and PM2.5 National
Ambient Air Quality Standards’’ (2007
Memo). On September 25, 2009, the
EPA issued an additional guidance
document pertaining to the 2006 PM2.5
NAAQS entitled ‘‘Guidance on SIP
Elements Required Under Sections
110(a)(1) and (2) for the 2006 24-Hour
Fine Particle (PM2.5) National Ambient
Air Quality Standards (NAAQS)’’ (2009
Memo), followed by the October 14,
2011, ‘‘Guidance on Infrastructure SIP
Elements Required Under Sections
110(a)(1) and (2) for the 2008 Lead (Pb)
National Ambient Air Quality Standards
(NAAQS)’’ (2011 Memo). Most recently,
the EPA issued ‘‘Guidance on
Infrastructure State Implementation
Plan (SIP) Elements under Clean Air Act
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Sections 110(a)(1) and (2)’’ on
September 13, 2013 (2013 Memo).
III. What is the scope of this
rulemaking?
The EPA is acting upon the SIP
submissions from Utah that address the
infrastructure requirements of CAA
sections 110(a)(1) and 110(a)(2) for the
2008 ozone, 2008 Pb, 2010 NO2, 2010
SO2, and 2012 PM2.5 NAAQS. The
requirement for states to make a SIP
submission of this type arises out of
CAA section 110(a)(1). Pursuant to
section 110(a)(1), states must make SIP
submissions ‘‘within three years (or
such shorter period as the Administrator
may prescribe) after the promulgation of
a national primary ambient air quality
standard (or any revision thereof),’’ and
these SIP submissions are to provide for
the ‘‘implementation, maintenance, and
enforcement’’ of such NAAQS. The
statute directly imposes on states the
duty to make these SIP submissions,
and the requirement to make the
submissions is not conditioned upon
the EPA taking any action other than
promulgating a new or revised NAAQS.
Section 110(a)(2) includes a list of
specific elements that ‘‘[e]ach such
plan’’ submission must address.
The EPA has historically referred to
these SIP submissions made for the
purpose of satisfying the requirements
of CAA sections 110(a)(1) and 110(a)(2)
as ‘‘infrastructure SIP’’ submissions.
Although the term ‘‘infrastructure SIP’’
does not appear in the CAA, the EPA
uses the term to distinguish this
particular type of SIP submission from
submissions that are intended to satisfy
other SIP requirements under the CAA,
such as ‘‘nonattainment SIP’’ or
‘‘attainment plan SIP’’ submissions to
address the nonattainment planning
requirements of part D of title I of the
CAA; ‘‘regional haze SIP’’ submissions
required by the EPA rule to address the
visibility protection requirements of
CAA section 169A; and nonattainment
new source review (NSR) permit
program submissions to address the
permit requirements of CAA, title I, part
D.
Section 110(a)(1) addresses the timing
and general requirements for
infrastructure SIP submissions, and
section 110(a)(2) provides more details
concerning the required contents of
these submissions. The list of required
elements provided in section 110(a)(2)
contains a wide variety of disparate
provisions, some of which pertain to
required legal authority, some of which
pertain to required substantive program
provisions, and some of which pertain
to requirements for both authority and
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substantive program provisions.1 The
EPA therefore believes that while the
timing requirement in section 110(a)(1)
is unambiguous, some of the other
statutory provisions are ambiguous. In
particular, the EPA believes that the list
of required elements for infrastructure
SIP submissions provided in section
110(a)(2) contains ambiguities
concerning what is required for
inclusion in an infrastructure SIP
submission.
Examples of some of these
ambiguities and the context in which
the EPA interprets the ambiguous
portions of section 110(a)(1) and
110(a)(2) are discussed at length in our
notice of proposed rulemaking:
Promulgation of State Implementation
Plan Revisions; Infrastructure
Requirements for the 1997 and 2006
PM2.5, 2008 Lead, 2008 Ozone, and 2010
NO2 National Ambient Air Quality
Standards; South Dakota (79 FR 71040,
Dec. 1, 2014) under ‘‘III. What is the
Scope of this Rulemaking?’’
With respect to certain other issues,
the EPA does not believe that an action
on a state’s infrastructure SIP
submission is necessarily the
appropriate type of action in which to
address possible deficiencies in a state’s
existing SIP. These issues include: (i)
Existing provisions related to excess
emissions from sources during periods
of startup, shutdown, or malfunction
(SSM) that may be contrary to the CAA
and the EPA’s policies addressing such
excess emissions; (ii) existing provisions
related to ‘‘director’s variance’’ or
‘‘director’s discretion’’ that may be
contrary to the CAA because they
purport to allow revisions to SIPapproved emissions limits while
limiting public process or not requiring
further approval by the EPA; and (iii)
existing provisions for Prevention of
Significant Deterioration (PSD)
programs that may be inconsistent with
current requirements of the EPA’s
‘‘Final NSR Improvement Rule,’’ 67 FR
80186, Dec. 31, 2002, as amended by 72
FR 32526, June 13, 2007 (‘‘NSR
Reform’’).
IV. What infrastructure elements are
required under sections 110(a)(1) and
(2)?
CAA section 110(a)(1) provides the
procedural and timing requirements for
1 For example: Section 110(a)(2)(E)(i) provides
that states must provide assurances that they have
adequate legal authority under state and local law
to carry out the SIP; section 110(a)(2)(C) provides
that states must have a SIP-approved program to
address certain sources as required by part C of title
I of the CAA; and section 110(a)(2)(G) provides that
states must have legal authority to address
emergencies as well as contingency plans that are
triggered in the event of such emergencies.
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SIP submissions after a new or revised
NAAQS is promulgated. Section
110(a)(2) lists specific elements the SIP
must contain or satisfy. These
infrastructure elements include
requirements such as modeling,
monitoring, and emissions inventories,
which are designed to assure attainment
and maintenance of the NAAQS. The
elements that are the subject of this
action are listed below.
• 110(a)(2)(A): Emission limits and
other control measures.
• 110(a)(2)(B): Ambient air quality
monitoring/data system.
• 110(a)(2)(C): Program for
enforcement of control measures.
• 110(a)(2)(D): Interstate transport.
• 110(a)(2)(E): Adequate resources
and authority, conflict of interest, and
oversight of local governments and
regional agencies.
• 110(a)(2)(F): Stationary source
monitoring and reporting.
• 110(a)(2)(G): Emergency powers.
• 110(a)(2)(H): Future SIP revisions.
• 110(a)(2)(J): Consultation with
government officials; public
notification; and PSD and visibility
protection.
• 110(a)(2)(K): Air quality modeling/
data.
• 110(a)(2)(L): Permitting fees.
• 110(a)(2)(M): Consultation/
participation by affected local entities.
A detailed discussion of each of these
elements is contained in the next
section.
Two elements identified in section
110(a)(2) are not governed by the three
year submission deadline of section
110(a)(1) and are therefore not
addressed in this action. These elements
relate to part D of Title I of the CAA, and
submissions to satisfy them are not due
within three years after promulgation of
a new or revised NAAQS, but rather are
due at the same time nonattainment area
plan requirements are due under section
172. The two elements are: (1) Section
110(a)(2)(C) to the extent it refers to
permit programs (known as
‘‘nonattainment NSR’’) required under
part D, and (2) section 110(a)(2)(I),
pertaining to the nonattainment
planning requirements of part D. As a
result, this action does not address
infrastructure elements related to the
nonattainment NSR portion of section
110(a)(2)(C) or related to 110(a)(2)(I).
Furthermore, the EPA interprets the
CAA section 110(a)(2)(J) provision on
visibility as not being triggered by a new
NAAQS because the visibility
requirements in part C, title 1 of the
CAA are not changed by a new NAAQS.
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V. How did Utah address the
infrastructure elements of sections
110(a)(1) and (2)?
24527
section 110(a)(2)(A) for the 2008 Pb,
2008 ozone, 2010 NO2, 2010 SO2 and
2012 PM2.5 NAAQS, subject to the
following clarifications.
The Utah Department of
First, this infrastructure element does
Environmental Quality (Department or
not require the submittal of regulations
UDEQ) submitted certification of Utah’s
or emission limitations developed
infrastructure SIP for the 2008 Pb
specifically for attaining the 2008 Pb,
NAAQS on January 19, 2012; 2008
2008 ozone, 2010 NO2, 2010 SO2 and
ozone NAAQS on January 31, 2013;
2012 PM2.5 NAAQS. Utah’s
2010 NO2 NAAQS on January 31, 2013;
certifications (contained within this
2010 SO2 NAAQS on June 2, 2013; and
docket) generally list provisions and
2012 PM2.5 on December 4, 2015. Utah’s
enforceable control measures within its
infrastructure certifications demonstrate
SIP which regulate pollutants through
how the State, where applicable, has
various programs. This includes its
plans in place that meet the
stationary source permit program which
requirements of section 110 for the 2008
requires sources to demonstrate that
Pb, 2008 ozone, 2010 NO2, 2010 SO2 and
emissions will not cause or contribute to
2012 PM2.5 NAAQS. These plans
a violation of any NAAQS. This suffices,
reference the Utah Code Annotated
in the case of Utah, to meet the
(UCA), Utah Administrative Code (UAC)
requirements of section 110(a)(2)(A) for
rules, and the Utah SIP. These
the 2008 Pb, 2008 ozone, 2010 NO2,
submittals are available within the
2010 SO2 and 2012 PM2.5 NAAQS.
electronic docket for today’s proposed
Second, as previously discussed, the
action at www.regulations.gov. The
EPA is not proposing to approve or
UCA, UAC, and the Utah SIP referenced
disapprove any existing state rules with
in the submittals are publicly available
regard to director’s discretion or
at https://le.utah.gov/xcode/code.html,
variance provisions. A number of states,
https://www.rules.utah.gov/publicat/
including Utah, have such provisions
code/r307/r307-110.htm and https://
which are contrary to the CAA and
www.deq.utah.gov/Laws_Rules/daq/sip/
existing EPA guidance (52 FR 45109,
index.htm. Air pollution control
Nov. 24, 1987), and the agency plans to
regulations and statutes that have been
take action in the future to address such
previously approved by the EPA and
state regulations. In the meantime, the
incorporated into the Utah SIP can be
EPA encourages any state having a
found at 40 CFR 52.2320.
director’s discretion or variance
provision which is contrary to the CAA
VI. Analysis of the State Submittals
and EPA guidance to take steps to
1. Emission limits and other control
correct the deficiency as soon as
measures: Section 110(a)(2)(A) requires
possible.
SIPs to include enforceable emission
Finally, in this action, the EPA is also
limitations and other control measures,
not proposing to approve or disapprove
means, or techniques (including
any existing state provision with regard
economic incentives such as fees,
to excess emissions during SSM of
marketable permits, and auctions of
operations at a facility. A number of
emissions rights), as well as schedules
states, including Utah, have SSM
and timetables for compliance as may be
provisions which are contrary to the
necessary or appropriate to meet the
CAA and existing EPA guidance 2 and
applicable requirements of this Act.
the agency is addressing such state
The State’s submissions for the 2008
regulations separately (80 FR 33840,
Pb, 2008 ozone, 2010 NO2, 2010 SO2,
June 12, 2015).
and 2012 PM2.5 infrastructure
Therefore, the EPA is proposing to
requirements cite SIP Section I (Legal
approve Utah’s infrastructure SIP for the
Authority) which allows the adoption of 2008 Pb, 2008 ozone, 2010 NO
2, 2010
emission standards and other limits
SO2 and 2012 PM2.5 NAAQS with
necessary for attainment and
respect to the general requirement in
maintenance of national ambient air
section 110(a)(2)(A) to include
quality standards. SIP Section I (Legal
enforceable emission limitations and
Authority), in combination with other
other control measures, means, or
specific control measures adopted by
techniques to meet the applicable
the Utah Air Quality Board (AQB) and
requirements of this element.
multiple SIP-approved state air quality
regulations within the UAC and cited in
2 Steven Herman, Assistant Administrator for
Utah’s certifications, provide
Enforcement and Compliance Assurance, and
Robert Perciasepe, Assistant Administrator for Air
enforceable emission limitations and
and Radiation, Memorandum to the EPA Air
other control measures, means of
Division Directors, ‘‘State Implementation Plans
techniques, schedules for compliance,
(SIPs): Policy Regarding Emissions During
and other related matters necessary to
Malfunctions, Startup, and Shutdown.’’ (September
20, 1999).
meet the requirements of the CAA
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2. Ambient air quality monitoring/
data system: Section 110(a)(2)(B)
requires SIPs to ‘‘provide for
establishment and operation of
appropriate devices, methods, systems,
and procedures necessary’’ to ‘‘(i)
monitor, compile, and analyze data on
ambient air quality, and (ii) upon
request, make such data available to the
Administrator.’’
The State’s submissions cite UAC rule
R307–110–5, which incorporates by
reference SIP Section IV (Ambient Air
Monitoring Program), and provides a
brief description of the purposes of the
air monitoring program approved by the
EPA in the early 1980s and most
recently on June 25, 2003 (68 FR 37744).
Utah’s annual monitoring network plan
(AMNP), is made available by the
Department for public review and
comment prior to submission to the
EPA.
In this action, the EPA is acting only
on Utah’s submittal for 2008 ozone
NAAQS for CAA section 110(a)(2)(B).
Utah’s submittals for other pollutants
will be addressed in a separate
rulemaking action.
Utah’s 2013 AMNP for ozone was
approved through a letter dated
December 24, 2013 (available within the
docket). Additionally, the State of Utah
submits ozone data to the EPA’s Air
Quality System database in accordance
with 40 CFR 58.16.
We find that Utah’s SIP and practices
are adequate for the ambient air quality
monitoring and data system
requirements and therefore propose to
approve the infrastructure SIP for the
2008 ozone NAAQS for this element.
3. Program for enforcement of control
measures: Section 110(a)(2)(C) requires
SIPs to ‘‘include a program to provide
for the enforcement of the measures
described in subparagraph (A), and
regulation of the modification and
construction of any stationary source
within the areas covered by the plan as
necessary to assure that [NAAQS] are
achieved, including a permit program as
required in parts C and D.’’
To generally meet the requirements of
section 110(a)(2)(C), the State is
required to have SIP-approved PSD,
nonattainment NSR, and minor NSR
permitting programs that are adequate to
implement the 2008 Pb, 2008 ozone,
2010 NO2, 2010 SO2 and 2012 PM2.5
NAAQS. As explained elsewhere in this
action, the EPA is not evaluating
nonattainment related provisions, such
as the nonattainment NSR program
required by part D of the Act. The EPA
is evaluating the State’s PSD program as
required by part C of the Act, and the
State’s minor NSR program as required
by 110(a)(2)(C).
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Enforcement of Control Measures
Requirement
The State’s submissions for the 2008
Pb, 2008 ozone, 2010 NO2, 2010 SO2,
and 2012 PM2.5 infrastructure
requirements cite SIP Section I (Legal
Authority) which allows for
enforcement of applicable laws,
regulations, and standards and to seek
injunctive relief, and also provides
authority to prevent construction,
modification, or operation of any
stationary source at any location where
emissions from such source will prevent
the attainment or maintenance of a
national standard or interfere with
prevention of significant deterioration
requirements.
PSD Requirements
With respect to Elements (C) and (J),
the EPA interprets the CAA to require
each state to make an infrastructure SIP
submission for a new or revised NAAQS
demonstrating that the air agency has a
complete PSD permitting program
meeting the current requirements for all
regulated NSR pollutants. The
requirements of Element D(i)(II) may
also be satisfied by demonstrating the
air agency has a complete PSD
permitting program that correctly
addresses all regulated NSR pollutants.
Utah has shown that it currently has a
PSD program in place that covers all
regulated NSR pollutants, including
greenhouse gases (GHGs). SIP Section
VIII (Prevention of Significant
Deterioration) applies to all air
pollutants regulated under the CAA.
Utah implements the PSD program by,
for the most part, incorporating by
reference the federal PSD program as it
existed on a specific date. The State
periodically updates the PSD program
by revising the date of incorporation by
reference and submitting the change as
a SIP revision. On October 25, 2013 (78
FR 63883), we approved portions of a
Utah SIP revision that revised the date
of incorporation by reference of the
federal PSD program to July 1, 2011. As
a result, the SIP revisions generally
reflect changes to PSD requirements that
the EPA has promulgated prior to the
revised date of incorporation by
reference.
On July 15, 2011 (76 FR 41712), we
approved portions of a Utah SIP
revision that revised the date of
incorporation by reference of the federal
PSD program. That revision addressed
the PSD requirements of the Phase 2
Ozone Implementation Rule
promulgated in 2005 (70 FR 71612). As
a result, the approved Utah PSD
program meets current requirements for
ozone.
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On June 23, 2014, the United States
Supreme Court addressed the
application of PSD permitting
requirements to GHG emissions. Utility
Air Regulatory Group v. Environmental
Protection Agency, 134 S.Ct. 2427. The
Supreme Court held that the EPA may
not treat GHGs as an air pollutant for
purposes of determining whether a
source is a major source required to
obtain a PSD permit. The Court also
held that the EPA could continue to
require that PSD permits, otherwise
required based on emissions of
pollutants other than GHGs (anyway
sources) contain limitations on GHG
emissions based on the application of
Best Available Control Technology
(BACT).
In accordance with the Supreme
Court decision, on April 10, 2015, the
U.S. Court of Appeals for the District of
Columbia Circuit (the DC Circuit) issued
an amended judgment vacating the
regulations that implemented Step 2 of
the EPA’s PSD and Title V Greenhouse
Gas Tailoring Rule, but not the
regulations that implement Step 1 of
that rule. Step 1 of the Tailoring Rule
covers sources that are required to
obtain a PSD permit based on emissions
of pollutants other than GHGs. Step 2
applied to sources that emitted only
GHGs above the thresholds triggering
the requirement to obtain a PSD permit.
The amended judgment preserves,
without the need for additional
rulemaking by the EPA, the application
of the BACT requirement to GHG
emissions from Step 1 or ‘‘anyway’’
sources.3 With respect to Step 2 sources,
the DC Circuit’s amended judgment
vacated the regulations at issue in the
litigation, including 40 CFR
51.166(b)(48)(v), ‘‘to the extent they
require a stationary source to obtain a
PSD permit if greenhouse gases are the
only pollutant (i) that the source emits
or has the potential to emit above the
applicable major source thresholds, or
(ii) for which there is a significant
emission increase from a modification.’’
The EPA is planning to take
additional steps to revise the federal
PSD rules in light of the Supreme Court
and subsequent DC Circuit opinions.
Some states have begun to revise their
existing SIP-approved PSD programs in
light of these court decisions, and some
states may prefer not to initiate this
process until they have more
information about the planned revisions
to the EPA’s PSD regulations. The EPA
is not expecting states to have revised
their PSD programs in anticipation of
the EPA’s planned actions to revise its
3 See 77 FR 41066 (July 12, 2012) rulemaking for
definition of ‘‘anyway’’ sources.
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PSD program rules in response to the
court decisions.
At present, the EPA has determined
Utah’s SIP is sufficient to satisfy
Elements (C), (D)(i)(II) element 3, and (J)
with respect to GHGs. This is because
the PSD permitting program previously
approved by the EPA into the SIP
continues to require that PSD permits
issued to ‘‘anyway sources’’ contain
limitations on GHG emissions based on
the application of BACT. The EPA most
recently approved revisions to Utah’s
PSD program on February 6, 2014 (79
FR 7070). The approved Utah PSD
permitting program still contains some
provisions regarding Step 2 sources that
are no longer necessary in light of the
Supreme Court decision and DC Circuit
amended judgment. Nevertheless, the
presence of these provisions in the
previously-approved plan does not
render the infrastructure SIP submission
inadequate to satisfy Elements (C),
(D)(i)(II), and (J). The SIP contains the
PSD requirements for applying the
BACT requirement to greenhouse gas
emissions from ‘‘anyway sources’’ that
are necessary at this time. The
application of those requirements is not
impeded by the presence of other
previously-approved provisions
regarding the permitting of Step 2
sources. Accordingly, the Supreme
Court decision and subsequent DC
Circuit judgment do not prevent the
EPA’s approval of Utah’s infrastructure
SIP as to the requirements of Elements
(C), (D)(i)(II) and (J).
Finally, we evaluate the PSD program
with respect to current requirements for
PM2.5. In particular, on May 16, 2008,
the EPA promulgated the rule,
‘‘Implementation of the New Source
Review Program for Particulate Matter
Less Than 2.5 Micrometers (PM2.5)’’ (73
FR 28321). On October 20, 2010 the EPA
promulgated the rule, ‘‘Prevention of
Significant Deterioration (PSD) for
Particulate Matter Less Than 2.5
Micrometers (PM2.5)—Increments,
Significant Impact Levels (SILs) and
Significant Monitoring Concentration
(SMC)’’ (75 FR 64864). The EPA regards
adoption of these PM2.5 rules as a
necessary requirement when assessing a
PSD program for the purposes of
element (C).
On January 4, 2013, the U.S. Court of
Appeals, in Natural Resources Defense
Council v. EPA, 706 F.3d 428 (D.C. Cir.),
issued a judgment that remanded the
EPA’s 2007 and 2008 rules
implementing the 1997 PM2.5 NAAQS.
The court ordered the EPA to
‘‘repromulgate these rules pursuant to
Subpart 4 consistent with this opinion.’’
Id. at 437. Subpart 4 of part D, Title 1
of the CAA establishes additional
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provisions for particulate matter
nonattainment areas.
The 2008 Implementation rule
addressed by Natural Resources Defense
Council, ‘‘Implementation of New
Source Review (NSR) Program for
Particulate Matter Less Than 2.5
Micrometers (PM2.5),’’ (73 FR 28321,
May 16, 2008), promulgated NSR
requirements for implementation of
PM2.5 in nonattainment areas
(nonattainment NSR) and attainment/
unclassifiable areas (PSD). As the
requirements of Subpart 4 only pertain
to nonattainment areas, the EPA does
not consider the portions of the 2008
Implementation rule that address
requirements for PM2.5 attainment and
unclassifiable areas to be affected by the
court’s opinion. Moreover, the EPA does
not anticipate the need to revise any
PSD requirements promulgated in the
2008 Implementation rule in order to
comply with the court’s decision.
Accordingly, the EPA’s proposed
approval of Utah’s infrastructure SIP as
to elements C or J with respect to the
PSD requirements promulgated by the
2008 Implementation rule does not
conflict with the court’s opinion.
The court’s decision with respect to
the nonattainment NSR requirements
promulgated by the 2008
Implementation rule also does not affect
the EPA’s action on the present
infrastructure action. The EPA
interprets the Act to exclude
nonattainment area requirements,
including requirements associated with
a nonattainment NSR program, from
infrastructure SIP submissions due three
years after adoption or revision of a
NAAQS. Instead, these elements are
typically referred to as nonattainment
SIP or attainment plan elements, which
would be due by the dates statutorily
prescribed under subpart 2 through 5
under part D, extending as far as 10
years following designations for some
elements.
The second PSD requirement for
PM2.5 is contained in the EPA’s October
20, 2010 rule, ‘‘Prevention of Significant
Deterioration (PSD) for Particulate
Matter Less Than 2.5 Micrometers
(PM2.5)—Increments, Significant Impact
Levels (SILs) and Significant Monitoring
Concentration (SMC)’’ (75 FR 64864).
The EPA regards adoption of the PM2.5
increments as a necessary requirement
when assessing a PSD program for the
purposes of element (C).
On March 14, 2012, Utah submitted
revisions to the PSD program that adopt
by reference federal provisions of 40
CFR part 52, section 21, as they existed
on July 1, 2011. As that date is after the
effective date of the two rules, the
submission incorporates those
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requirements. The EPA approved the
necessary portions of Utah’s March 14,
2012 submission on October 25, 2013
(78 FR 63883). Utah’s SIP-approved PSD
program meets current requirements for
PM2.5. The EPA therefore is proposing to
approve Utah’s SIP for the 2008 ozone,
2008 Pb, 2010 NO2, 2010 SO2 and 2012
PM2.5 NAAQS with respect to the
requirement in section 110(a)(2)(C) to
include a permit program in the SIP as
required by part C of the Act.
Minor NSR
The State has a SIP-approved minor
NSR program, adopted under section
110(a)(2)(C) of the Act. The minor NSR
program is found in section II of the
Utah SIP, and was approved by the EPA
as section 2 of the SIP (68 FR 37744,
June 25, 2003). Since approval of the
minor NSR program, the State and the
EPA have relied on the program to
assure that new and modified sources
not captured by the major NSR
permitting programs do not interfere
with attainment and maintenance of the
NAAQS. Utah’s minor NSR program, as
approved into the SIP, covers the
construction and modification of
stationary sources of regulated NSR
pollutants, including PM2.5, lead, and
ozone and its precursors.
The EPA is proposing to approve
Utah’s infrastructure SIP for the 2008
Pb, 2008 ozone, 2010 NO2, 2010 SO2 and
2012 PM2.5 NAAQS with respect to the
general requirement in section
110(a)(2)(C) to include a program in the
SIP that regulates the enforcement,
modification, and construction of any
stationary source as necessary to assure
that the NAAQS are achieved.
4. Interstate Transport: The interstate
transport provisions in CAA section
110(a)(2)(D)(i) (also called ‘‘good
neighbor’’ provisions) require each state
to submit a SIP that prohibits emissions
that will have certain adverse air quality
effects in other states. CAA section
110(a)(2)(D)(i) identifies four distinct
elements related to the impacts of air
pollutants transported across state lines.
The two elements under
110(a)(2)(D)(i)(I) require SIPs to contain
adequate provisions to prohibit any
source or other type of emissions
activity within the state from emitting
air pollutants that will (element 1)
contribute significantly to
nonattainment in any other state with
respect to any such national primary or
secondary NAAQS, and (element 2)
interfere with maintenance by any other
state with respect to the same NAAQS.
The two elements under
110(a)(2)(D)(i)(II) require SIPs to contain
adequate provisions to prohibit
emissions that will interfere with
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measures required to be included in the
applicable implementation plan for any
other state under part C (element 3) to
prevent significant deterioration of air
quality or (element 4) to protect
visibility. In this action, the EPA is only
addressing element 3 of CAA section
110(a)(2)(D)(i)(II) for the 2008 ozone,
2008 Pb, 2010 SO2, 2010 NO2 and 2012
PM2.5 NAAQS. All other transport
elements will be addressed in separate
rulemaking actions.
Evaluation of Interference With
Measures To Prevent Significant
Deterioration (PSD)
With regard to the PSD portion of
CAA section 110(a)(2)(D)(i)(II), this
requirement may be met by a state’s
confirmation in an infrastructure SIP
submission that new major sources and
major modifications in the state are
subject to a comprehensive EPAapproved PSD permitting program in
the SIP that applies to all regulated new
source review (NSR) pollutants and that
satisfies the requirements of the EPA’s
PSD implementation rules.4 As noted in
the discussion for infrastructure element
(C) earlier in this notice, the EPA is
proposing to approve CAA section
110(a)(2) element (C) for Utah’s
infrastructure SIP for the 2008 Pb, 2008
ozone, 2010 NO2, 2010 SO2, and 2012
PM2.5 NAAQS with respect to PSD
requirements. As discussed in detail in
that section, Utah’s SIP meets the
current PSD-related requirements of
section 110(a)(2)(C). For this reason, we
are also proposing to approve Utah’s
infrastructure SIP as meeting the
110(a)(2)(D)(i)(II) element 3 (PSD)
requirements for 2006 24-hour PM2.5
NAAQS.
In-state sources not subject to PSD for
a particular NAAQS because they are in
a nonattainment area for that standard
may also have the potential to interfere
with PSD in an attainment or
unclassifiable area of another state.5
One way a state may satisfy element 3
with respect to these sources is by citing
an air agency’s EPA-approved
nonattainment NSR provisions
addressing any pollutants for which the
state has designated nonattainment
areas. Utah has a SIP-approved
nonattainment NSR program which
ensures regulation of major sources and
major modifications in nonattainment
areas, and therefore satisfies element 3
with regard to this requirement.6
The EPA is proposing to approve the
infrastructure SIP submission with
regard to the requirements of element 3
4 See
2013 Memo at 31.
at 31.
6 See R307–403.
of section 110(a)(2)(D)(i) for the 2006
PM2.5, 2008 Pb, 2008 Ozone, 2010 NO2,
2010 SO2 and 2012 PM2.5 NAAQS.
5. Interstate and International
transport provisions: CAA section
110(a)(2)(D)(ii) requires SIPs to include
provisions ensuring compliance with
the applicable requirements of CAA
sections 126 and 115 (relating to
interstate and international pollution
abatement). Specifically, CAA section
126(a) requires new or modified major
sources to notify neighboring states of
potential impacts from the source.
Section 126(a) of the CAA requires
notification to affected, nearby states of
major proposed new (or modified)
sources. Sections 126(b) and (c) pertain
to petitions affected states may seek
from the Administrator of the EPA
(Administrator) regarding sources
violating the ‘‘interstate transport’’
provisions of section 110(a)(2)(D)(i).
Section 115 of the CAA similarly
pertains to international transport of air
pollution.
As required by 40 CFR
51.166(q)(2)(iv), Utah’s SIP-approved
PSD program requires notice to states
whose air quality may be impacted by
the emissions of sources subject to
PSD.7 This suffices to meet the notice
requirement of section 126(a).
Utah has no pending obligations
under sections 126(c) or 115(b) of the
CAA; therefore, its SIP currently meets
the requirements of those sections. In
summary, the SIP meets the
requirements of CAA section
110(a)(2)(D)(ii), and the EPA is therefore
proposing approval of this element for
the 2008 Pb, 2008 ozone, 2010 NO2,
2010 SO2 and 2012 PM2.5 NAAQS. The
EPA is also proposing to approve the
Utah SIP as meeting the requirements of
section 110(a)(2)(D)(ii) for the 1997 and
2006 PM2.5 NAAQS. Utah submitted an
infrastructure certification generally
addressing CAA section 110(a)(2)(D) for
the 1997 PM2.5 NAAQS on December 3,
2007, and 2006 PM2.5 NAAQS on
September 21, 2010.
6. Adequate resources: Section
110(a)(2)(E)(i) requires states to provide
‘‘necessary assurances that the State
[. . .] will have adequate personnel,
funding, and authority under State law
to carry out [the SIP] (and is not
prohibited by any provision of federal or
state law from carrying out the SIP or
portion thereof).’’ Section
110(a)(2)(E)(ii) also requires each state
to ‘‘comply with the requirements
respecting State boards’’ under CAA
section 128. Section 110(a)(2)(E)(iii)
requires states to provide ‘‘necessary
assurances that, where the State has
5 Id.
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relied on a local or regional government,
agency, or instrumentality for the
implementation of any [SIP] provision,
the State has responsibility for ensuring
adequate implementation of such [SIP]
provision.’’
a. Sub-Elements (i) and (iii): Adequate
Personnel, Funding, and Legal
Authority Under State Law To Carry
Out Its SIP, and Related Issues
The provisions contained in Chapter
2 of Title 19 of the Utah Code and Utah
SIP Section I, Legal Authority provide
UDAQ and the AQB adequate authority
to carry out its SIP obligations with
respect to the 2008 Pb, 2008 ozone, 2010
NO2, 2010 SO2 and 2012 PM2.5 NAAQS.
The State receives sections 103 and 105
grant funds through its Performance
Partnership Grant along with required
state matching funds to provide funding
necessary to carry out Utah’s SIP
requirements (Utah SIP Section V,
Resources). Utah’s Performance
Partnership Agreement (available within
the docket) with the EPA documents
resources needed to provide resources
to carry out agreed upon environmental
program goals, measures, and
commitments, including developing and
implementing appropriate SIPs for all
areas of the State. Annually, states
update these grant commitments based
on current SIP requirements, air quality
planning, and applicable requirements
related to the NAAQS. Utah
satisfactorily met all commitments
agreed to in the Air Planning Agreement
for fiscal year 2015. Furthermore, R307–
414, Permits: Fees for Approval Orders,
requires the owner and operator of each
new major source or major modification
to pay a fee sufficient to cover
reasonable costs of reviewing and acting
upon the notice of intent and
implementing and enforcing
requirements placed on such source by
any approval order issued. Collectively,
these rules and commitments provide
evidence that Utah DAQ has adequate
personnel, funding, and legal authority
to carry out the State’s implementation
plan and related issues.
With respect to section
110(a)(2)(E)(iii), the regulations cited by
Utah in their certifications (Utah SIP
Section VI, Intergovernmental
Cooperation) and contained within this
docket also provide the necessary
assurances that the State has
responsibility for adequate
implementation of SIP provisions by
local governments. Therefore, we
propose to approve Utah’s SIP as
meeting the requirements of section
110(a)(2)(E)(i) and (E)(iii) for the 2008
Pb, 2008 ozone, 2010 NO2, 2010 SO2 and
2012 PM2.5 NAAQS.
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b. Sub-Element (ii): State Boards
Section 110(a)(2)(E)(ii) requires each
state’s SIP to contain provisions that
comply with the requirements of section
128 of the CAA. Section 128 contains
two explicit requirements: (i) That ‘‘any
board or body which approves permits
or enforcement orders under [the CAA]
shall have at least a majority of members
who represent the public interest and do
not derive any significant portion of
their income from persons subject to
permits or enforcement orders’’ under
the CAA; and (ii) that ‘‘any potential
conflicts of interest by members of such
board or body or the head of an
executive agency with similar powers be
adequately disclosed.’’
In our November 25, 2013 (78 FR
63883) action, we disapproved Utah’s
April 17, 2008 and September 21, 2010
infrastructure SIP submissions for the
1997 and 2006 PM2.5 NAAQS for CAA
Section 110(a)(2)(E)(ii) because the Utah
SIP did not contain provisions meeting
requirements of CAA section 128. Under
section 110(c)(1)(B), this disapproval
started a two-year clock for the EPA to
promulgate a federal implementation
plan (FIP) to address the deficiency.
On March 14, 2016, the EPA received
a submission from the State of Utah to
address the requirements of section 128,
containing new rule language approved
by the Utah AQB on March 2, 2016. A
copy of the submission, including the
new rules, Conflict of Interest R307–
104–1 (Authority), R307–104–2
(Purpose) and R307–104–3 (Disclosure
of conflict of interest), is available
within this docket. These rules address
conflict of interest requirements of
section 128(a)(2). We propose to
approve this new rule language as
meeting the requirements of section 128
for the reasons explained in more detail
below. Because this revision meets the
requirements of section 128, we also
propose to approve the State’s
infrastructure SIP submissions for
element 110(a)(2)(E)(ii). The State
submitted the provisions to meet section
128 separately, but section 128 is not
NAAQS-specific and once the State has
met the requirements of section 128,
that is sufficient for purposes of section
110(a)(2)(E)(ii) for all NAAQS. If we
finalize this proposed approval for the
2008 Pb, 2008 ozone, 2010 NO2, 2010
SO2, and 2012 PM2.5 NAAQS, this will
also resolve the prior disapproval for
element 110(a)(2)(E)(ii) for the 1997 and
2006 PM2.5 NAAQS and terminate the
EPA’s FIP obligation.
We are proposing to approve the
State’s March 14, 2016 SIP submission
as meeting the requirements of section
128 because we believe that it complies
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with the statutory requirements and is
consistent with the EPA’s guidance
recommendations concerning section
128. In 1978, the EPA issued a guidance
memorandum recommending ways
states could meet the requirements of
section 128, including suggested
interpretations of certain key terms in
section 128.8 In this proposal notice, we
discuss additional relevant aspects of
section 128. We first note that, in the
conference report of the 1977
amendments to the CAA, the conference
committee stated, ‘‘[i]t is the
responsibility of each state to determine
the specific requirements to meet the
general requirements of [section 128].’’ 9
This legislative history indicates that
Congress intended states to have some
latitude in adopting SIP provisions with
respect to section 128, so long as states
meet the statutory requirements of the
section. We also note that Congress
explicitly provided in section 128 that
states could elect to adopt more
stringent requirements, as long as the
minimum requirements of section 128
are met.
In implementing section 128, the EPA
has identified a number of key
considerations relevant to evaluation of
a SIP submission. The EPA has
identified these considerations in the
1978 guidance and in subsequent
rulemaking actions on SIP submissions
relevant to section 128, whether as SIP
revisions for this specific purpose or as
an element of broader actions on
infrastructure SIP submissions for one
or more NAAQS.
Each state must meet the
requirements of section 128 through
provisions that the EPA approves into
the state’s SIP and are thus made
federally enforceable. Section 128
explicitly mandates that each SIP ‘‘shall
contain requirements’’ that satisfy
subsections 128(a)(1) and 128(a)(2). A
mere narrative description of state
statutes or rules, or of a state’s current
or past practice in constituting a board
or body and in disclosing potential
conflicts of interest, is not a requirement
contained in the SIP and does not
satisfy the plain text of section 128.
Subsection 128(a)(1) applies only to
states that have a board or body that is
composed of multiple individuals and
that, among its duties, approves permits
or enforcement orders under the CAA.
It does not apply in states that have no
such multi-member board or body that
8 Memorandum from David O. Bickart, Deputy
General Counsel, to Regional Air Directors,
Guidance to States for Meeting Conflict of Interest
Requirements of Section 128 (Mar. 2, 1978).
9 H.R. Rep. 95–564 (1977), reprinted in 3
Legislative History of the Clean Air Act
Amendments of 1977, 526–27 (1978).
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performs these functions, and where
instead a single head of an agency or
other similar official approves permits
or enforcement orders under the CAA.
This flows from the text of section 128,
for two reasons. First, as subsection
128(a)(1) refers to a majority of members
of the board or body in the plural, we
think it reasonable to read subsection
128(a)(1) as not creating any
requirements for an individual with sole
authority for approving permits or
enforcement orders under the CAA.
Second, subsection 128(a)(2) explicitly
applies to the head of an executive
agency with ‘‘similar powers’’ to a board
or body that approves permits or
enforcement orders under the CAA,
while subsection 128(a)(1) omits any
reference to heads of executive agencies.
We infer that subsection 128(a)(1)
should not apply to heads of executive
agencies who approve permits or
enforcement orders. States with no
multi-member board or body that
performs these functions, and instead
have a single head of an agency or other
similar official who approves CAA
permits or enforcement orders, can
satisfy the requirements of CAA
128(a)(1) with a negative declaration to
that effect.
Subsection 128(a)(2) applies to all
states, regardless of whether the state
has a multi-member board or body that
approves permits or enforcement orders
under the CAA. Although the title of
section 128 is ‘‘State boards,’’ the
language of subsection 128(a)(2)
explicitly applies where the head of an
executive agency, rather than a board or
body, approves permits or enforcement
orders. In instances where the head of
an executive agency delegates his or her
power to approve permits or
enforcement orders, or where statutory
authority to approve permits or
enforcement orders is nominally vested
in another state official, the requirement
to adequately disclose potential
conflicts of interest still applies. In other
words, the EPA interprets section
128(a)(2) to apply to all states,
regardless of whether a state board or
body approves permits or enforcement
orders under the CAA or whether a head
of a state agency (or his/her delegates)
performs these duties. Thus, all state
SIPs must contain provisions that
require adequate disclosure of potential
conflicts of interest in order to meet the
requirements of subsection 128(a)(2).
The question of which entities or parties
must be subject to such disclosure
requirements must be evaluated by
states and the EPA in light of the
specific facts and circumstances of each
state’s regulatory structure.
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A state may satisfy the requirements
of section 128 by submitting for
adoption into the SIP a provision of
state law that closely tracks or mirrors
the language of the applicable
provisions of section 128. A state may
take this approach in two ways. First,
the state may adopt the language of
subsections 128(a)(1) and 128(a)(2)
verbatim. Under this approach, the state
will be able to meet the continuing
requirements of section 128 without any
additional, future SIP revisions, even if
the state adds or removes authority,
either at the state or local level, to
individual or to boards or bodies to
approve permits or enforcement orders
under the CAA so long as the state
continues to meet section 128
requirements.
Second, the state may modify the
language of subsections 128(a)(1) (if
applicable) and 128(a)(2) to name the
particular board, body, or individual
official with approval authority. In this
case, if the state subsequently modifies
that authority, the state may have to
submit a corresponding SIP revision to
meet the continuing requirements of
section 128. If the state chooses to not
mirror the language of section 128, the
state may adopt state statutes and/or
regulations that functionally impose the
same requirements as those of section
128, including definitions for key terms
such as those recommended in the
EPA’s 1978 guidance. While either of
these approaches would meet the
minimum requirements of section 128,
the statute also explicitly authorizes
states to adopt more stringent
requirements, for example to impose
additional requirements for recusal of
board members from decisions, above
and beyond the explicit board
composition requirements. Although
such recusal alone does not meet the
requirements of section 128, states have
the authority to require that over and
above the explicit requirements of
section 128. These approaches give
states flexibility in implementing
section 128, while still ensuring
consistency with the statute.
As previously explained, the EPA
interprets subsection 128(a)(1) to apply
only to states that have a board or body
with multiple members that, among its
duties, approves permits or enforcement
orders under the Act. In its 2012 PM2.5
NAAQS certification, the State asserts
that there is no such multi-member
board or body, citing Utah Code section
19–2–104, Powers of the board.
Subsection 19–2–104(7) specifies that
the Utah AQB lacks authority over
permits, and subsection 19–2–104(3)
gives the Utah AQB authority only to
recommend that the Director issue and
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enforce orders. The EPA proposes to
determine that the Utah AQB does not
approve permits or enforcement orders
under the Act, and as a result, Utah
need not submit any provisions to
address the requirements of section
128(a)(1).10 However, the EPA interprets
subsection 128(a)(2) to apply to all
states, regardless of whether the state
has a multi-member board that approves
permits or enforcement orders. As a
result, 128(a)(2) applies to Utah, and, as
previously explained, must be met
through SIP-approved, federally
enforceable provisions.
The EPA has evaluated Utah’s
submittal containing R307–104–1
(Authority), R307–104–2 (Purpose) and
R307–104–3 (Disclosure of conflict of
interest) (available within this docket)
from the State in light of the
requirements of section 128, these key
considerations previously noted, and
the recommendations in the 1978
guidance. To meet the requirements of
subsection 128(a)(2), the State’s R307–
104–3 (Disclosure of conflict of interest),
includes disclosure of conflicts of
interest requirements applying to ‘‘any
member of the board or body which
approves permits or enforcement orders,
the head of the Utah [DAQ] with similar
powers, and the head of the Utah [DEQ]
with similar powers.’’ Under Utah’s
administrative procedures, the Director
of Utah DAQ has the initial authority to
issue air permits and enforcement
orders, and the Executive Director of
Utah DEQ has the ultimate authority to
resolve administrative adjudicative
proceedings regarding permits and
enforcement orders. See Utah Code 19–
1–301, 19–1–301.5. Thus, Utah’s
submittal addresses disclosure of
potential conflicts of interest from the
heads of executive agencies that
approve permits and enforcement orders
under the Act.
Utah’s provisions are also sufficient
for adequate disclosure. Under R307–
104–3(2), ‘‘[e]very individual listed in
R307–104–3(1) who is an officer,
director, agent, employee, or the owner
of a substantial interest in any business
entity which is subject to the regulation
of the agency by which the individual
listed in R307–104–3(1) is employed,
shall disclose any position held and the
precise nature and value of the interest
upon first becoming a public officer or
public employee listed in R307–104–
3(1), and again whenever his or her
position in the business entity changes
significantly or if the value of his or her
10 In 2012, the Utah Legislature amended state
law to generally transfer authority of the Utah AQB
over permits and enforcement orders to the Director
of Utah DAQ and Executive Director of Utah DEQ.
See 78 FR 52477, 52482 (Aug. 23, 2013).
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interest in the entity is significantly
increased.’’ This language covers a
sufficiently broad range of potential
conflicts of interest with any business
subject to regulation by Utah DAQ,
including permittees and the subjects of
enforcement orders. The form of
disclosure is also adequate: It is made in
a sworn statement to the attorney
general and is made publicly available.
We propose to find that these
procedures provide adequate disclosure
of potential conflicts of interest within
the meaning of subsection 128(a)(2).
In summary, the EPA proposes to
approve Utah’s March 14, 2016
submittal into the SIP to meet the
requirements of section 128 of the Act.
We also propose to approve Utah’s
infrastructure SIP with respect to the
requirements of Section 110(a)(2)(E)(ii)
for 2008 Pb, 2008 ozone, 2010 NO2, 2010
SO2 and 2012 PM2.5 NAAQS.
7. Stationary source monitoring
system: Section 110(a)(2)(F) requires: (i)
‘‘the installation, maintenance, and
replacement of equipment, and the
implementation of other necessary
steps, by owners or operators of
stationary sources to monitor emissions
from such sources; (ii) periodic reports
on the nature and amounts of emissions
and emissions-related data from such
sources; and (iii) correlation of such
reports by the State agency with any
emission limitations or standards
established pursuant to [the Act], which
reports shall be available at reasonable
times for public inspection.’’
The provisions cited by Utah in SIP
Section III Source Surveillance,
(including R307–150, and R307–165)
pertain to its program of periodic
emissions testing and plant inspections
of stationary sources, and related testing
requirements and protocols (including
periodic reporting) to assure compliance
with emissions limits. R307–170
requires certain large sources to install
and maintain continuous emission
monitors to assure compliance with
emission limitations established in
approval orders and the SIP. In
addition, Utah provides for monitoring,
recordkeeping, and reporting
requirements for sources subject to
minor and major source permitting.
Furthermore, Utah is required to
submit emissions data to the EPA for
purposes of the National Emissions
Inventory (NEI). The NEI is the EPA’s
central repository for air emissions data.
The EPA published the Air Emissions
Reporting Rule (AERR) on December 5,
2008, which modified the requirements
for collecting and reporting air
emissions data (73 FR 76539). The
AERR shortened the time states had to
report emissions data from 17 to 12
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months, giving states one calendar-year
to submit emissions data. All states are
required to submit a comprehensive
emissions inventory every three years
and report emissions for certain larger
sources annually through the EPA’s
online Emissions Inventory System.
States report emissions data for the six
criteria pollutants and their associated
precursors—nitrogen oxides, sulfur
dioxide, ammonia, lead, carbon
monoxide, particulate matter and
volatile organic compounds. Many
states also voluntarily report emissions
of hazardous air pollutants. Utah made
its latest update to the NEI in March
2016. The EPA compiles the emissions
data, supplementing it where necessary,
and releases it to the general public
through the Web site https://www.epa.
gov/air-emissions-inventories.
Based on the analysis above, we
propose to approve the Utah SIP as
meeting the requirements of CAA
section 110(a)(2)(F) for the 2008 Pb,
2008 ozone, 2010 NO2, 2010 SO2 and
2012 PM2.5 NAAQS.
8. Emergency powers: Section
110(a)(2)(G) of the CAA requires
infrastructure SIPs to ‘‘provide for
authority comparable to that in [CAA
section 303] and adequate contingency
plans to implement such authority[.]’’
Under CAA section 303, the EPA
Administrator has authority to bring suit
to immediately restrain an air pollution
source that presents an ‘‘imminent and
substantial endangerment to public
health or welfare, or the
environment.’’ 11 If such action may not
practicably assure prompt protection,
then the Administrator has authority to
issue temporary administrative orders to
protect the public health or welfare, or
the environment, and such orders can
be extended if the EPA subsequently
files a civil suit. We propose to find that
Utah’s infrastructure SIP submittals
provide for authority for the State
comparable to that granted to the EPA
Administrator to act in the face of an
imminent and substantial endangerment
to the public’s health or welfare, or the
environment.
Utah’s SIP submittals with regard to
the section 110(a)(2)(G) emergency order
requirements cite the EPA approved
provisions (State SIP Section I Legal
Authority codified at R307–110–2) to
abate pollutant emissions on an
11 A discussion of the requirements for meeting
CAA section 303 is provided in our notice of
proposed rulemaking: Promulgation of State
Implementation Plan Revisions; Infrastructure
Requirements for the 1997 and 2006 PM2.5, 2008
Lead, 2008 Ozone, and 2010 NO2 National Ambient
Air Quality Standards; South Dakota (79 FR 71040,
Dec. 1, 2014) under ‘‘VI. Analysis of State
Submittals, 8. Emergency powers.’’
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emergency basis to prevent substantial
endangerment to the health of persons.
Utah Code 19–2–116(3)(a) also provides
the director the power to ‘‘initiate an
action for appropriate injunctive relief
. . . when it appears necessary for the
protection of health and welfare.’’ Utah
Code 19–2–112(1)(a) provides authority
to the ‘‘executive director, with the
concurrence of the governor’’ to order
people ‘‘causing or contributing to . . .
air pollution to reduce or discontinue
immediately the emission of air
pollutants’’ if the ‘‘executive director
finds that a generalized condition of air
pollution exists and that it creates an
emergency requiring immediate action
to protect human health or safety.’’ Utah
Code 19–2–112(2)(a) describes how in
instances of an ‘‘absence of a
generalized condition of air pollution’’
referred to in subsection (1), the
executive director may still commence
adjudicative proceedings as long as the
executive director ‘‘finds that emissions
from the operation of one or more air
pollutant sources is causing imminent
danger to human health or safety.’’
In regard to imminent and substantial
endangerment to the environment,
Utah’s Emergency Management Act
allows the Governor to issue rules and
regulations having the ‘‘full force and
effect of law’’ during a state of
emergency. Additionally, Utah Code
53–2a–209(1) allows the Governor to
suspend rules and regulations of state
agencies that would prevent the ability
to adequately deal with such disasters.
See Utah Code 53–2a–209(3).
While no single Utah statute mirrors
the authorities of CAA section 303, we
propose to find that the combination of
Utah Code, UAC Rules, and Utah’s
Emergency Management Act provisions
previously discussed provide for
authority comparable to section 303.
Section 303 authorizes the
Administrator to immediately bring suit
to restrain and issue emergency orders
when necessary, to enable the
Administrator to take prompt
administrative action against any person
causing or contributing to air pollution
that presents an imminent and
substantial endangerment to public
health or welfare, or the environment.
Therefore, we propose that Utah’s SIP
submittals sufficiently meet the
requirements of CAA 110(a)(2)(G)
because they demonstrate that Utah has
authority comparable to CAA section
303.
States must also have adequate
contingency plans adopted into their
SIP to implement the air agency’s
emergency episode authority (as
previously discussed). This can be done
by submitting a plan that meets the
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applicable requirements of 40 CFR part
51, subpart H for the relevant NAAQS
if the NAAQS is covered by those
regulations. The EPA approved Utah’s
State SIP Section VII (Prevention of Air
Pollution Emergency Episodes), codified
at R307–110–8, most recently on
February 14, 2006 at 71 FR 7679. We
find that Utah’s air pollution emergency
rules include PM10,12 ozone, NO2, and
SO2; establish stages of episode criteria;
provide for public announcement
whenever any episode stage has been
determined to exist; and specify
emission control actions to be taken at
each episode stage, consistent with the
EPA emergency episode SIP
requirements set forth at 40 CFR part 51
subpart H (prevention of air pollution
emergency episode) for particulate
matter, ozone, NO2, and SO2.
As noted in the 2011 Memo ‘‘based on
[the] EPA’s experience to date with the
Pb NAAQS and designating Pb
nonattainment areas, [the] EPA expects
that an emergency episode associated
with Pb emissions would be unlikely
and, if it were to occur, would be the
result of a malfunction or other
emergency situation at a relatively large
source of Pb’’ (page 14).13 Accordingly,
the EPA believes the central
components of a contingency plan
would be to reduce emissions from the
source at issue and communicate with
the public as needed. We note that 40
CFR part 51, subpart H (51.150–51.152)
and 40 CFR part 51, Appendix L do not
apply to Pb.
Based on the above analysis, we
propose approval of Utah’s SIP as
meeting the requirements of CAA
section 110(a)(2)(G) for the 2008 Pb,
2008 ozone, and 2010 NO2, 2010 SO2
and 2012 PM2.5 NAAQS.
9. Future SIP revisions: Section
110(a)(2)(H) requires that SIPs provide
for revision of such plan: (i) ‘‘[f]rom
time to time as may be necessary to take
account of revisions of such national
primary or secondary ambient air
12 The EPA has not yet promulgated regulations
for ambient levels pertaining to priority levels for
PM2.5 under the 2012 NAAQS (2013 Memo, p. 47).
EPA’s September 25, 2009 Memo (available within
the docket) suggested that states with areas that
have had a PM2.5 exceedance greater than 140.4 mg/
m3 should develop and submit an emergency
episode plan. If no such concentration was recorded
in the last three years, the guidance suggested that
the State can rely on its general emergency
authorities. In this rulemaking, we continue to view
these suggestions as appropriate in assessing Utah’s
SIP for this element. Utah has not had such a
recorded PM2.5 level and thus an emergency
episode plan for PM2.5 is not necessary. The SIP
therefore meets the requirements of CAA section
110(a)(2)(G) for the 2012 PM2.5 NAAQS.
13 October 14, 2011, ‘‘Guidance on Infrastructure
SIP Elements Required Under Sections 110(a)(1)
and (2) for the 2008 Lead (Pb) National Ambient Air
Quality Standards (NAAQS).’’
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quality standard or the availability of
improved or more expeditious methods
of attaining such standard[;] and (ii)
except as provided in paragraph (3)(C),
whenever the Administrator finds on
the basis of information available to the
Administrator that the [SIP] is
substantially inadequate to attain the
[NAAQS] which it implements or to
otherwise comply with any additional
requirements under this [Act].’’
Utah SIP Section I cites 19–2–104 and
19–2–109 of the Utah Code. Sections
19–2–104 and 19–2–109 give the AQB
sufficient authority to meet the
requirements of CAA section
110(a)(2)(H). Therefore, we propose to
approve Utah’s SIP as meeting the
requirements of CAA section
110(a)(2)(H).
10. Consultation with government
officials, public notification, PSD and
visibility protection: Section 110(a)(2)(J)
requires that each SIP ‘‘meet the
applicable requirements of section 121
of this title (relating to consultation),
section 127 of this title (relating to
public notification), and part C of this
subchapter (relating to PSD of air
quality and visibility protection).’’
In its certifications, the State cites SIP
Section I (Legal Authority) adopting
requirements for transportation
consultation, SIP Section VI
(Intergovernmental Cooperation), and
SIP Section XII (Transportation
Conformity Consultation) to meet the
requirements of CAA section 121. The
State has demonstrated that it has the
authority and rules in place to provide
a process of consultation with general
purpose local governments, designated
organizations of elected officials of local
governments and any Federal Land
Manager having authority over federal
land to which the SIP applies,
consistent with the requirements of
CAA section 121 (see 59 FR 2988, Jan.
20, 1994). Furthermore, SIP section XVI,
cited by Utah, meets the general
requirements of CAA section 127 to
notify the public when the NAAQS have
been exceeded.
The State has a SIP-approved PSD
program that incorporates by reference
the federal program at 40 CFR 52.21;
these provisions are located in R307–
405–2 of the UAC. The EPA has further
evaluated Utah’s SIP-approved PSD
program in this proposed action under
VI.3 of this notice which analyzes
whether the Utah SIP has met CAA
section 110(a)(2)(C). There, we propose
approval with respect to the PSD
requirements of element (C); we
likewise do so here with respect to the
PSD requirements of element (J).
Finally, with regard to the applicable
requirements for visibility protection,
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the EPA recognizes states are subject to
visibility and regional haze program
requirements under part C of the Act. In
the event of the establishment of a new
NAAQS, however, the visibility and
regional haze program requirements
under part C do not change. Thus, we
find that there are no applicable
visibility requirements under section
110(a)(2)(J) when a new NAAQS
becomes effective.
Based on the above analysis, we
propose to approve the Utah SIP as
meeting the requirements of CAA
section 110(a)(2)(J) for the 2008 Pb, 2008
ozone, 2010 NO2, 2010 SO2 and 2012
PM2.5 NAAQS.
11. Air quality and modeling/data:
Section 110(a)(2)(K) requires each SIP
provide for: (i) ‘‘the performance of such
air quality modeling as the
Administrator may prescribe for the
purpose of predicting the effect on
ambient air quality of any emissions of
any air pollutant for which the
Administrator has established a
[NAAQS]; and (ii) the submission, upon
request, of data related to such air
quality modeling to the Administrator.’’
UAC rule R307–405–13 incorporates
by reference the air quality model
provisions of 40 CFR 52.21(l), which
includes the air quality model
requirements of appendix W of 40 CFR
part 51, pertaining to the Guideline on
Air Quality Models. Additionally, Utah
Code 19–104(1)(a)–(b) provide the AQB
with the authority to propose and
finalize rules that require air quality
modeling for the purpose of predicting
the effect on ambient air quality relating
to NAAQS. As a result, the SIP provides
for such air quality modeling as the
Administrator has prescribed.
Therefore, we propose to approve the
Utah SIP as meeting the CAA section
110(a)(2)(K) for the 2008 Pb, 2008 ozone,
2010 NO2, 2010 SO2 and 2012 PM2.5
NAAQS.
12. Permitting fees: Section
110(a)(2)(L) requires ‘‘the owner or
operator of each major stationary source
to pay to the permitting authority, as a
condition of any permit required under
this [Act], a fee sufficient to cover[:] (i)
The reasonable costs of reviewing and
acting upon any application for such a
permit[;] and (ii) if the owner or
operator receives a permit for such
source, the reasonable costs of
implementing and enforcing the terms
and conditions of any such permit (not
including any court costs or other costs
associated with any enforcement
action), until such fee requirement is
superseded with respect to such sources
by the Administrator’s approval of a fee
program under [title] V.’’
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UAC rule R307–414, Permits: Fees for
Approval Orders, requires the owner
and operator of each new major source
or major modification to pay a fee
sufficient to cover the reasonable costs
of reviewing and acting upon the notice
of intent and implementing and
enforcing requirements placed on such
source by any approval order issued.
The EPA approved R307–414 most
recently on February 14, 2006 at 71 FR
7679. SIP Section I (Legal Authority)
‘‘identifies the statutory authority to
charge a fee to major sources to cover
permit and enforcement expenses . . .’’
SIP Section I was codified at R307–10–
2 and the EPA approved it most recently
on June 25, 2003 at 68 FR 37744.
We also note that all the State’s
certifications cite R307–415 which is
the regulation that provides for
collection of permitting fees under
Utah’s approved title V permit program
(60 FR 30192, June 8, 1995). As
discussed in that approval, the State
demonstrated that the fees collected
were sufficient to administer the
program.
Therefore we propose to approve the
submissions as supplemented by the
State for the 2008 Pb, 2008 ozone, 2010
NO2, 2010 SO2 and 2012 PM2.5 NAAQS.
13. Consultation/participation by
affected local entities: Section
110(a)(2)(M) requires states to ‘‘provide
for consultation and participation [in
SIP development] by local political
subdivisions affected by [the SIP].’’
The provisions cited in Utah’s SIP
submittals (SIP Section VI
(Intergovernmental Cooperation)
codified at R307–110–7 and SIP Section
XII (Transportation Conformity
Consultation) codified at R307–110–20,
contained within this docket) meet the
requirements of CAA section
110(a)(2)(M). We propose to approve
Utah’s SIP as meeting these
requirements for the 2008 Pb, 2008
ozone, 2010 NO2, 2010 SO2 and 2012
PM2.5 NAAQS.
VII. What action is the EPA taking?
In this action, the EPA is proposing to
approve infrastructure elements for the
2008 Pb, 2008 ozone, 2010 NO2, 2010
SO2 and 2012 PM2.5 NAAQS from the
State’s certifications as shown in Table
1. Elements we propose no action on are
reflected in Table 2. Finally, the EPA is
proposing to approve a new UAC
submitted on March 14, 2016 to satisfy
requirements of element (E)(ii),which
refers to requirements related to state
boards.
A comprehensive summary of
infrastructure elements, and revisions
and additions to the UAC organized by
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the EPA’s proposed rule action are
provided in Table 1 and Table 2.
TABLE 1—LIST OF UTAH INFRASTRUCTURE ELEMENTS AND REVISIONS THAT THE EPA IS PROPOSING TO APPROVE
Proposed for approval
December 3, 2007 submittal—1997 PM2.5 NAAQS: (D)(ii)
September 21, 2010 submittal—2006 PM2.5 NAAQS: (D)(ii)
January 19, 2012 submittal—2008 Pb NAAQS:
(A), (C), (D)(i)(II) element 3, (D)(ii), (E), (F), (G), (H), (J), (K), (L) and (M).
June 2, 2013 submittal—2010 SO2 NAAQS:
(A), (C), (D)(i)(II) element 3, (D)(ii), (E), (F), (G), (H), (J), (K), (L) and (M).
January 31, 2013 submittal—2008 Ozone NAAQS:
(A), (B), (C), (D)(i)(II) element 3, (D)(ii), (E), (F), (G), (H), (J), (K), (L) and (M).
January 31, 2013 submittal—2010 NO2 NAAQS:
(A), (C), (D)(i)(II) element 3, (D)(ii), (E), (F), (G), (H), (J), (K), (L) and (M).
December 4, 2015 submittal—2012 PM2.5 NAAQS:
(A), (C), (D)(i)(II) element 3, (D)(ii), (E), (F), (G), (H), (J), (K), (L) and (M).
March 14, 2016 submittal—New Rules to UAC Rules, CAA Section 128
R307–104–1, R307–104–2 and R307–104–3.
TABLE 2—LIST OF UTAH INFRASTRUCTURE ELEMENTS AND REVISIONS THAT THE EPA IS PROPOSING TO TAKE NO
ACTION ON
Proposed for no action
(Revision to be made in separate rulemaking action)
January 19, 2012 submittal—2008 Pb NAAQS:
(B), (D)(i)(I) elements 1 and 2, (D)(i)(II) element 4.
January 31, 2013 submittal—2008 Ozone NAAQS:
(D)(i)(I) elements 1 and 2, (D)(i)(II) element 4.
January 31, 2013 submittal—2010 NO2 NAAQS:
(B), (D)(i)(I) elements 1 and 2, (D)(i)(II) element 4.
June 2, 2013 submittal—2010 SO2 NAAQS:
(B), (D)(i)(I) elements 1 and 2, (D)(i)(II) element 4.
December 22, 2015 submittal—2012 PM2.5 NAAQS:
(B), (D)(i)(I) elements 1 and 2, (D)(i)(II) element 4.
VIII. Incorporation by Reference
In this rule, the EPA is proposing to
include in a final the EPA rule
regulatory text that includes
incorporation by reference. In
accordance with requirements of 1 CFR
51.5, the EPA is proposing to
incorporate by reference the Utah
Administrative Code Rules pertaining to
state board requirements VI.6. b. Subelement (ii): State boards, of this
preamble. The EPA has made, and will
continue to make, these documents
generally available electronically
through www.regulations.gov and/or in
hard copy at the appropriate EPA office
(see the ADDRESSES section of this
preamble for more information).
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IX. Statutory and Executive Orders
Review
Under the CAA, 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, the
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this proposed
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action merely approves some state law
as meeting federal requirements and
disapproves other state law because it
does not meet federal requirements; this
proposed action does not impose
additional requirements beyond those
imposed by state law. For that reason,
this proposed action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Order 12866 (58 FR 51735,
Oct. 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, Aug. 10,
1999);
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• 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 CAA; and,
• Does not provide the 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, Feb. 16, 1994).
The SIP is not approved to apply on
any Indian reservation land or in any
other area where the EPA or an Indian
tribe has demonstrated that a tribe has
jurisdiction. In those areas of Indian
country, the rule does not have tribal
implications and will not impose
substantial direct costs on tribal
governments or preempt tribal law as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
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List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Incorporation by reference,
Intergovernmental relations,
Greenhouse gases, Lead, Nitrogen
dioxide, Ozone, Particulate matter,
Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: April 13, 2016.
Debra H. Thomas,
Acting Regional Administrator, Region 8.
[FR Doc. 2016–09586 Filed 4–25–16; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R03–OAR–2016–0002; FRL–9945–46–
Region 3]
Approval and Promulgation of Air
Quality Implementation Plans;
Pennsylvania; 2011 Base Year
Inventories for the 2008 8-Hour Ozone
National Ambient Air Quality Standard
for the Allentown-Bethlehem-Easton,
Lancaster, Pittsburgh-Beaver Valley,
and Reading Areas, and the
Pennsylvania Portion of the
Philadelphia-Wilmington-Atlantic City
Area
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) proposes to approve the
2011 base year inventories for the 2008
8-hour ozone national ambient air
quality standard (NAAQS) for the
Allentown-Bethlehem-Easton,
Lancaster, Pittsburgh-Beaver Valley, and
Reading nonattainment areas, and the
Pennsylvania portion of the
Philadelphia-Wilmington-Atlantic City
nonattainment area, submitted by the
Commonwealth of Pennsylvania as a
revision to the Pennsylvania State
Implementation Plan (SIP). In the Rules
and Regulations section of this issue of
the Federal Register, EPA is approving
Pennsylvania’s SIP submittal as a direct
final rule without prior proposal
because the Agency views this as a
noncontroversial submittal and
anticipates no adverse comments. The
rationale for the approval is set forth in
the direct final rule. More detailed
descriptions of the state submittal and
EPA’s evaluation are included in
Technical Support Documents (TSD)
prepared in support of this rulemaking
mstockstill on DSK4VPTVN1PROD with PROPOSAL
SUMMARY:
VerDate Sep<11>2014
17:13 Apr 25, 2016
Jkt 238001
action. Copies of the TSDs are available,
upon request, from the EPA Regional
Office listed in the ADDRESSES section of
this document or are also available
electronically within the Docket for this
rulemaking action. If no adverse
comments are received in response to
this action, no further activity is
contemplated. If EPA receives adverse
comments, the direct final rule will be
withdrawn and all public comments
received will be addressed in a
subsequent final rule based on this
proposed rule. EPA will not institute a
second comment period. Any parties
interested in commenting on this action
should do so at this time.
DATES: Comments must be received in
writing by May 26, 2016.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R03–
OAR–2016–0002 at https://
www.regulations.gov, or via email to
fernandez.cristina@epa.gov. For
comments submitted at Regulations.gov,
follow the online instructions for
submitting comments. Once submitted,
comments cannot be edited or removed
from Regulations.gov. For either manner
of submission, EPA may publish any
comment received to its public docket.
Do not submit electronically any
information you consider to be
confidential business information (CBI)
or other information whose disclosure is
restricted by statute. Multimedia
submissions (audio, video, etc.) must be
accompanied by a written comment.
The written comment is considered the
official comment and should include
discussion of all points you wish to
make. EPA will generally not consider
comments or comment contents located
outside of the primary submission (i.e.
on the web, cloud, or other file sharing
system). For additional submission
methods, please contact the person
identified in the FOR FURTHER
INFORMATION CONTACT section. For the
full EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www2.epa.gov/dockets/
commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT:
Maria A. Pino, (215) 814–2181, or by
email at pino.maria@epa.gov.
SUPPLEMENTARY INFORMATION: For
further information regarding
Pennsylvania’s 2011 base year
inventories for the 2008 8-hour ozone
NAAQS for the Allentown-BethlehemEaston, Lancaster, Pittsburgh-Beaver
Valley, and Reading areas, and the
Pennsylvania portion of the
Philadelphia-Wilmington-Atlantic City
area, please see the information
PO 00000
Frm 00018
Fmt 4702
Sfmt 4702
provided in the direct final action, with
the same title, that is located in the
Rules and Regulations section of this
issue of the Federal Register.
Dated: April 8, 2016.
Shawn M. Garvin,
Regional Administrator, Region III.
[FR Doc. 2016–09590 Filed 4–25–16; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 52 and 81
[EPA–R04–OAR–2012–0323; FRL–9945–63–
Region 4]
Air Plan Approval and Air Quality
Designation; TN; Redesignation of the
Sullivan County Lead Nonattainment
Area to Attainment
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
On July 15, 2015, the State of
Tennessee, through the Tennessee
Department of Environment and
Conservation (TDEC), submitted a
request for the Environmental
Protection Agency (EPA) to redesignate
the Bristol, Tennessee 2008 lead
nonattainment area (hereafter referred to
as the ‘‘Bristol Area’’ or the ‘‘Area’’) to
attainment for the 2008 lead National
Ambient Air Quality Standards
(NAAQS) and an associated State
Implementation Plan (SIP) revision
containing a maintenance plan and a
reasonably available control measures
(RACM) determination for the Area.
EPA is proposing to determine that the
Bristol Area is continuing to attain the
2008 lead NAAQS; to approve the SIP
revision containing the State’s
maintenance plan for maintaining
attainment of the 2008 lead standard
and the State’s RACM determination;
and to redesignate the Bristol Area to
attainment for the 2008 lead NAAQS.
DATES: Comments must be received on
or before May 26, 2016.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R04–
OAR–2012–0323 at https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or removed from Regulations.gov.
EPA may publish any comment received
to its public docket. Do not submit
electronically any information you
consider to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Multimedia submissions (audio, video,
SUMMARY:
E:\FR\FM\26APP1.SGM
26APP1
]]>Agencies
[Federal Register Volume 81, Number 80 (Tuesday, April 26, 2016)]
[Proposed Rules]
[Pages 24525-24536]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-09586]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2013-0561, FRL-9945-57-Region 8]
Promulgation of State Implementation Plan Revisions;
Infrastructure Requirements for the 2008 Lead, 2008 Ozone, 2010
NO2, 2010 SO2, and 2012 PM2.5 National
Ambient Air Quality Standards; Utah
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve elements of State Implementation Plan (SIP) revisions from the
State of Utah to demonstrate the State meets infrastructure
requirements of the Clean Air Act (Act or CAA) for the National Ambient
Air Quality Standards (NAAQS) promulgated for ozone on March 12, 2008,
lead (Pb) on October 15, 2008, nitrogen dioxide (NO2) on
January 22, 2010, sulfur dioxide (SO2) on June 2, 2010 and
fine particulate matter (PM2.5) on December 14, 2012. The
EPA is also proposing to approve SIP revisions the State submitted
regarding state boards. Section 110(a) of the CAA requires that each
state submit a SIP for the implementation, maintenance, and enforcement
of each NAAQS promulgated by the EPA.
DATES: Written comments must be received on or before May 26, 2016.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2013-0561 at https://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. The EPA may publish any
comment received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e., on the web, cloud, or other
file sharing system). For additional submission methods, the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Abby Fulton, Air Program, U.S.
Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595
Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6563,
fulton.abby@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
What should I consider as I prepare my comments for the EPA?
1. Submitting Confidential Business Information (CBI). Do not
submit CBI to the EPA through https://www.regulations.gov or email.
Clearly mark the part or all of the information that you claim to be
CBI. For CBI information on a disk or CD ROM that you mail to the 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:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register volume,
date, and page number);
Follow directions and organize your comments;
Explain why you agree or disagree;
Suggest alternatives and substitute language for your
requested changes;
Describe any assumptions and provide any technical
information and/or data that you used;
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced;
Provide specific examples to illustrate your concerns, and
suggest alternatives;
Explain your views as clearly as possible, avoiding the
use of profanity or personal threats; and,
Make sure to submit your comments by the comment period
deadline identified.
II. Background
On March 12, 2008, the EPA promulgated a new NAAQS for ozone,
[[Page 24526]]
revising the levels of the primary and secondary 8-hour ozone standards
from 0.08 parts per million (ppm) to 0.075 ppm (73 FR 16436, March 27,
2008). Subsequently, on October 15, 2008, the EPA revised the level of
the primary and secondary Pb NAAQS from 1.5 micrograms per cubic meter
([mu]g/m\3\) to 0.15 [mu]g/m\3\ (73 FR 66964, Nov. 12, 2008). On
January 22, 2010, the EPA promulgated a new 1-hour primary NAAQS for
NO2 at a level of 100 parts per billion (ppb) while
retaining the annual standard of 53 ppb. The 2010 NO2 NAAQS
is expressed as the three-year average of the 98th percentile of the
annual distribution of daily maximum one-hour average concentrations.
The secondary NO2 NAAQS remains unchanged at 53 ppb (75 FR
6474, Feb. 9, 2010). On June 2, 2010, the EPA promulgated a revised
primary SO2 standard at 75 ppb, based on a three-year
average of the annual 99th percentile of one-hour daily maximum
concentrations (75 FR 35520, June 22, 2010). Finally, on December 14,
2012, the EPA promulgated a revised annual PM2.5 standard by
lowering the level to 12.0 [mu]g/m\3\ and retaining the 24-hour
PM2.5 standard at a level of 35 [mu]g/m\3\ (78 FR 3086, Jan.
15, 2013).
Under sections 110(a)(1) and (2) of the CAA, states are required to
submit infrastructure SIPs to ensure their SIPs provide for
implementation, maintenance and enforcement of the NAAQS. These
submissions must contain any revisions needed for meeting the
applicable SIP requirements of section 110(a)(2), or certifications
that their existing SIPs for PM2.5, ozone, Pb,
NO2, and SO2 already meet those requirements. The
EPA highlighted this statutory requirement in an October 2, 2007,
guidance document entitled ``Guidance on SIP Elements Required Under
Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and
PM2.5 National Ambient Air Quality Standards'' (2007 Memo).
On September 25, 2009, the EPA issued an additional guidance document
pertaining to the 2006 PM2.5 NAAQS entitled ``Guidance on
SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-
Hour Fine Particle (PM2.5) National Ambient Air Quality
Standards (NAAQS)'' (2009 Memo), followed by the October 14, 2011,
``Guidance on Infrastructure SIP Elements Required Under Sections
110(a)(1) and (2) for the 2008 Lead (Pb) National Ambient Air Quality
Standards (NAAQS)'' (2011 Memo). Most recently, the EPA issued
``Guidance on Infrastructure State Implementation Plan (SIP) Elements
under Clean Air Act Sections 110(a)(1) and (2)'' on September 13, 2013
(2013 Memo).
III. What is the scope of this rulemaking?
The EPA is acting upon the SIP submissions from Utah that address
the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2)
for the 2008 ozone, 2008 Pb, 2010 NO2, 2010 SO2,
and 2012 PM2.5 NAAQS. The requirement for states to make a
SIP submission of this type arises out of CAA section 110(a)(1).
Pursuant to section 110(a)(1), states must make SIP submissions
``within three years (or such shorter period as the Administrator may
prescribe) after the promulgation of a national primary ambient air
quality standard (or any revision thereof),'' and these SIP submissions
are to provide for the ``implementation, maintenance, and enforcement''
of such NAAQS. The statute directly imposes on states the duty to make
these SIP submissions, and the requirement to make the submissions is
not conditioned upon the EPA taking any action other than promulgating
a new or revised NAAQS. Section 110(a)(2) includes a list of specific
elements that ``[e]ach such plan'' submission must address.
The EPA has historically referred to these SIP submissions made for
the purpose of satisfying the requirements of CAA sections 110(a)(1)
and 110(a)(2) as ``infrastructure SIP'' submissions. Although the term
``infrastructure SIP'' does not appear in the CAA, the EPA uses the
term to distinguish this particular type of SIP submission from
submissions that are intended to satisfy other SIP requirements under
the CAA, such as ``nonattainment SIP'' or ``attainment plan SIP''
submissions to address the nonattainment planning requirements of part
D of title I of the CAA; ``regional haze SIP'' submissions required by
the EPA rule to address the visibility protection requirements of CAA
section 169A; and nonattainment new source review (NSR) permit program
submissions to address the permit requirements of CAA, title I, part D.
Section 110(a)(1) addresses the timing and general requirements for
infrastructure SIP submissions, and section 110(a)(2) provides more
details concerning the required contents of these submissions. The list
of required elements provided in section 110(a)(2) contains a wide
variety of disparate provisions, some of which pertain to required
legal authority, some of which pertain to required substantive program
provisions, and some of which pertain to requirements for both
authority and substantive program provisions.\1\ The EPA therefore
believes that while the timing requirement in section 110(a)(1) is
unambiguous, some of the other statutory provisions are ambiguous. In
particular, the EPA believes that the list of required elements for
infrastructure SIP submissions provided in section 110(a)(2) contains
ambiguities concerning what is required for inclusion in an
infrastructure SIP submission.
---------------------------------------------------------------------------
\1\ For example: Section 110(a)(2)(E)(i) provides that states
must provide assurances that they have adequate legal authority
under state and local law to carry out the SIP; section 110(a)(2)(C)
provides that states must have a SIP-approved program to address
certain sources as required by part C of title I of the CAA; and
section 110(a)(2)(G) provides that states must have legal authority
to address emergencies as well as contingency plans that are
triggered in the event of such emergencies.
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Examples of some of these ambiguities and the context in which the
EPA interprets the ambiguous portions of section 110(a)(1) and
110(a)(2) are discussed at length in our notice of proposed rulemaking:
Promulgation of State Implementation Plan Revisions; Infrastructure
Requirements for the 1997 and 2006 PM2.5, 2008 Lead, 2008
Ozone, and 2010 NO2 National Ambient Air Quality Standards;
South Dakota (79 FR 71040, Dec. 1, 2014) under ``III. What is the Scope
of this Rulemaking?''
With respect to certain other issues, the EPA does not believe that
an action on a state's infrastructure SIP submission is necessarily the
appropriate type of action in which to address possible deficiencies in
a state's existing SIP. These issues include: (i) Existing provisions
related to excess emissions from sources during periods of startup,
shutdown, or malfunction (SSM) that may be contrary to the CAA and the
EPA's policies addressing such excess emissions; (ii) existing
provisions related to ``director's variance'' or ``director's
discretion'' that may be contrary to the CAA because they purport to
allow revisions to SIP-approved emissions limits while limiting public
process or not requiring further approval by the EPA; and (iii)
existing provisions for Prevention of Significant Deterioration (PSD)
programs that may be inconsistent with current requirements of the
EPA's ``Final NSR Improvement Rule,'' 67 FR 80186, Dec. 31, 2002, as
amended by 72 FR 32526, June 13, 2007 (``NSR Reform'').
IV. What infrastructure elements are required under sections 110(a)(1)
and (2)?
CAA section 110(a)(1) provides the procedural and timing
requirements for
[[Page 24527]]
SIP submissions after a new or revised NAAQS is promulgated. Section
110(a)(2) lists specific elements the SIP must contain or satisfy.
These infrastructure elements include requirements such as modeling,
monitoring, and emissions inventories, which are designed to assure
attainment and maintenance of the NAAQS. The elements that are the
subject of this action are listed below.
110(a)(2)(A): Emission limits and other control measures.
110(a)(2)(B): Ambient air quality monitoring/data system.
110(a)(2)(C): Program for enforcement of control measures.
110(a)(2)(D): Interstate transport.
110(a)(2)(E): Adequate resources and authority, conflict
of interest, and oversight of local governments and regional agencies.
110(a)(2)(F): Stationary source monitoring and reporting.
110(a)(2)(G): Emergency powers.
110(a)(2)(H): Future SIP revisions.
110(a)(2)(J): Consultation with government officials;
public notification; and PSD and visibility protection.
110(a)(2)(K): Air quality modeling/data.
110(a)(2)(L): Permitting fees.
110(a)(2)(M): Consultation/participation by affected local
entities.
A detailed discussion of each of these elements is contained in the
next section.
Two elements identified in section 110(a)(2) are not governed by
the three year submission deadline of section 110(a)(1) and are
therefore not addressed in this action. These elements relate to part D
of Title I of the CAA, and submissions to satisfy them are not due
within three years after promulgation of a new or revised NAAQS, but
rather are due at the same time nonattainment area plan requirements
are due under section 172. The two elements are: (1) Section
110(a)(2)(C) to the extent it refers to permit programs (known as
``nonattainment NSR'') required under part D, and (2) section
110(a)(2)(I), pertaining to the nonattainment planning requirements of
part D. As a result, this action does not address infrastructure
elements related to the nonattainment NSR portion of section
110(a)(2)(C) or related to 110(a)(2)(I). Furthermore, the EPA
interprets the CAA section 110(a)(2)(J) provision on visibility as not
being triggered by a new NAAQS because the visibility requirements in
part C, title 1 of the CAA are not changed by a new NAAQS.
V. How did Utah address the infrastructure elements of sections
110(a)(1) and (2)?
The Utah Department of Environmental Quality (Department or UDEQ)
submitted certification of Utah's infrastructure SIP for the 2008 Pb
NAAQS on January 19, 2012; 2008 ozone NAAQS on January 31, 2013; 2010
NO2 NAAQS on January 31, 2013; 2010 SO2 NAAQS on
June 2, 2013; and 2012 PM2.5 on December 4, 2015. Utah's
infrastructure certifications demonstrate how the State, where
applicable, has plans in place that meet the requirements of section
110 for the 2008 Pb, 2008 ozone, 2010 NO2, 2010
SO2 and 2012 PM2.5 NAAQS. These plans reference
the Utah Code Annotated (UCA), Utah Administrative Code (UAC) rules,
and the Utah SIP. These submittals are available within the electronic
docket for today's proposed action at www.regulations.gov. The UCA,
UAC, and the Utah SIP referenced in the submittals are publicly
available at https://le.utah.gov/xcode/code.html, https://www.rules.utah.gov/publicat/code/r307/r307-110.htm and https://www.deq.utah.gov/Laws_Rules/daq/sip/index.htm. Air pollution control
regulations and statutes that have been previously approved by the EPA
and incorporated into the Utah SIP can be found at 40 CFR 52.2320.
VI. Analysis of the State Submittals
1. Emission limits and other control measures: Section 110(a)(2)(A)
requires SIPs to include enforceable emission limitations and other
control measures, means, or techniques (including economic incentives
such as fees, marketable permits, and auctions of emissions rights), as
well as schedules and timetables for compliance as may be necessary or
appropriate to meet the applicable requirements of this Act.
The State's submissions for the 2008 Pb, 2008 ozone, 2010
NO2, 2010 SO2, and 2012 PM2.5
infrastructure requirements cite SIP Section I (Legal Authority) which
allows the adoption of emission standards and other limits necessary
for attainment and maintenance of national ambient air quality
standards. SIP Section I (Legal Authority), in combination with other
specific control measures adopted by the Utah Air Quality Board (AQB)
and multiple SIP-approved state air quality regulations within the UAC
and cited in Utah's certifications, provide enforceable emission
limitations and other control measures, means of techniques, schedules
for compliance, and other related matters necessary to meet the
requirements of the CAA section 110(a)(2)(A) for the 2008 Pb, 2008
ozone, 2010 NO2, 2010 SO2 and 2012
PM2.5 NAAQS, subject to the following clarifications.
First, this infrastructure element does not require the submittal
of regulations or emission limitations developed specifically for
attaining the 2008 Pb, 2008 ozone, 2010 NO2, 2010
SO2 and 2012 PM2.5 NAAQS. Utah's certifications
(contained within this docket) generally list provisions and
enforceable control measures within its SIP which regulate pollutants
through various programs. This includes its stationary source permit
program which requires sources to demonstrate that emissions will not
cause or contribute to a violation of any NAAQS. This suffices, in the
case of Utah, to meet the requirements of section 110(a)(2)(A) for the
2008 Pb, 2008 ozone, 2010 NO2, 2010
SO2 and 2012 PM2.5 NAAQS.
Second, as previously discussed, the EPA is not proposing to
approve or disapprove any existing state rules with regard to
director's discretion or variance provisions. A number of states,
including Utah, have such provisions which are contrary to the CAA and
existing EPA guidance (52 FR 45109, Nov. 24, 1987), and the agency
plans to take action in the future to address such state regulations.
In the meantime, the EPA encourages any state having a director's
discretion or variance provision which is contrary to the CAA and EPA
guidance to take steps to correct the deficiency as soon as possible.
Finally, in this action, the EPA is also not proposing to approve
or disapprove any existing state provision with regard to excess
emissions during SSM of operations at a facility. A number of states,
including Utah, have SSM provisions which are contrary to the CAA and
existing EPA guidance \2\ and the agency is addressing such state
regulations separately (80 FR 33840, June 12, 2015).
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\2\ Steven Herman, Assistant Administrator for Enforcement and
Compliance Assurance, and Robert Perciasepe, Assistant Administrator
for Air and Radiation, Memorandum to the EPA Air Division Directors,
``State Implementation Plans (SIPs): Policy Regarding Emissions
During Malfunctions, Startup, and Shutdown.'' (September 20, 1999).
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Therefore, the EPA is proposing to approve Utah's infrastructure
SIP for the 2008 Pb, 2008 ozone, 2010 NO2, 2010
SO2 and 2012 PM2.5 NAAQS with respect to the
general requirement in section 110(a)(2)(A) to include enforceable
emission limitations and other control measures, means, or techniques
to meet the applicable requirements of this element.
[[Page 24528]]
2. Ambient air quality monitoring/data system: Section 110(a)(2)(B)
requires SIPs to ``provide for establishment and operation of
appropriate devices, methods, systems, and procedures necessary'' to
``(i) monitor, compile, and analyze data on ambient air quality, and
(ii) upon request, make such data available to the Administrator.''
The State's submissions cite UAC rule R307-110-5, which
incorporates by reference SIP Section IV (Ambient Air Monitoring
Program), and provides a brief description of the purposes of the air
monitoring program approved by the EPA in the early 1980s and most
recently on June 25, 2003 (68 FR 37744). Utah's annual monitoring
network plan (AMNP), is made available by the Department for public
review and comment prior to submission to the EPA.
In this action, the EPA is acting only on Utah's submittal for 2008
ozone NAAQS for CAA section 110(a)(2)(B). Utah's submittals for other
pollutants will be addressed in a separate rulemaking action.
Utah's 2013 AMNP for ozone was approved through a letter dated
December 24, 2013 (available within the docket). Additionally, the
State of Utah submits ozone data to the EPA's Air Quality System
database in accordance with 40 CFR 58.16.
We find that Utah's SIP and practices are adequate for the ambient
air quality monitoring and data system requirements and therefore
propose to approve the infrastructure SIP for the 2008 ozone NAAQS for
this element.
3. Program for enforcement of control measures: Section
110(a)(2)(C) requires SIPs to ``include a program to provide for the
enforcement of the measures described in subparagraph (A), and
regulation of the modification and construction of any stationary
source within the areas covered by the plan as necessary to assure that
[NAAQS] are achieved, including a permit program as required in parts C
and D.''
To generally meet the requirements of section 110(a)(2)(C), the
State is required to have SIP-approved PSD, nonattainment NSR, and
minor NSR permitting programs that are adequate to implement the 2008
Pb, 2008 ozone, 2010 NO2, 2010 SO2 and 2012
PM2.5 NAAQS. As explained elsewhere in this action, the EPA
is not evaluating nonattainment related provisions, such as the
nonattainment NSR program required by part D of the Act. The EPA is
evaluating the State's PSD program as required by part C of the Act,
and the State's minor NSR program as required by 110(a)(2)(C).
Enforcement of Control Measures Requirement
The State's submissions for the 2008 Pb, 2008 ozone, 2010
NO2, 2010 SO2, and 2012 PM2.5
infrastructure requirements cite SIP Section I (Legal Authority) which
allows for enforcement of applicable laws, regulations, and standards
and to seek injunctive relief, and also provides authority to prevent
construction, modification, or operation of any stationary source at
any location where emissions from such source will prevent the
attainment or maintenance of a national standard or interfere with
prevention of significant deterioration requirements.
PSD Requirements
With respect to Elements (C) and (J), the EPA interprets the CAA to
require each state to make an infrastructure SIP submission for a new
or revised NAAQS demonstrating that the air agency has a complete PSD
permitting program meeting the current requirements for all regulated
NSR pollutants. The requirements of Element D(i)(II) may also be
satisfied by demonstrating the air agency has a complete PSD permitting
program that correctly addresses all regulated NSR pollutants. Utah has
shown that it currently has a PSD program in place that covers all
regulated NSR pollutants, including greenhouse gases (GHGs). SIP
Section VIII (Prevention of Significant Deterioration) applies to all
air pollutants regulated under the CAA.
Utah implements the PSD program by, for the most part,
incorporating by reference the federal PSD program as it existed on a
specific date. The State periodically updates the PSD program by
revising the date of incorporation by reference and submitting the
change as a SIP revision. On October 25, 2013 (78 FR 63883), we
approved portions of a Utah SIP revision that revised the date of
incorporation by reference of the federal PSD program to July 1, 2011.
As a result, the SIP revisions generally reflect changes to PSD
requirements that the EPA has promulgated prior to the revised date of
incorporation by reference.
On July 15, 2011 (76 FR 41712), we approved portions of a Utah SIP
revision that revised the date of incorporation by reference of the
federal PSD program. That revision addressed the PSD requirements of
the Phase 2 Ozone Implementation Rule promulgated in 2005 (70 FR
71612). As a result, the approved Utah PSD program meets current
requirements for ozone.
On June 23, 2014, the United States Supreme Court addressed the
application of PSD permitting requirements to GHG emissions. Utility
Air Regulatory Group v. Environmental Protection Agency, 134 S.Ct.
2427. The Supreme Court held that the EPA may not treat GHGs as an air
pollutant for purposes of determining whether a source is a major
source required to obtain a PSD permit. The Court also held that the
EPA could continue to require that PSD permits, otherwise required
based on emissions of pollutants other than GHGs (anyway sources)
contain limitations on GHG emissions based on the application of Best
Available Control Technology (BACT).
In accordance with the Supreme Court decision, on April 10, 2015,
the U.S. Court of Appeals for the District of Columbia Circuit (the DC
Circuit) issued an amended judgment vacating the regulations that
implemented Step 2 of the EPA's PSD and Title V Greenhouse Gas
Tailoring Rule, but not the regulations that implement Step 1 of that
rule. Step 1 of the Tailoring Rule covers sources that are required to
obtain a PSD permit based on emissions of pollutants other than GHGs.
Step 2 applied to sources that emitted only GHGs above the thresholds
triggering the requirement to obtain a PSD permit. The amended judgment
preserves, without the need for additional rulemaking by the EPA, the
application of the BACT requirement to GHG emissions from Step 1 or
``anyway'' sources.\3\ With respect to Step 2 sources, the DC Circuit's
amended judgment vacated the regulations at issue in the litigation,
including 40 CFR 51.166(b)(48)(v), ``to the extent they require a
stationary source to obtain a PSD permit if greenhouse gases are the
only pollutant (i) that the source emits or has the potential to emit
above the applicable major source thresholds, or (ii) for which there
is a significant emission increase from a modification.''
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\3\ See 77 FR 41066 (July 12, 2012) rulemaking for definition of
``anyway'' sources.
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The EPA is planning to take additional steps to revise the federal
PSD rules in light of the Supreme Court and subsequent DC Circuit
opinions. Some states have begun to revise their existing SIP-approved
PSD programs in light of these court decisions, and some states may
prefer not to initiate this process until they have more information
about the planned revisions to the EPA's PSD regulations. The EPA is
not expecting states to have revised their PSD programs in anticipation
of the EPA's planned actions to revise its
[[Page 24529]]
PSD program rules in response to the court decisions.
At present, the EPA has determined Utah's SIP is sufficient to
satisfy Elements (C), (D)(i)(II) element 3, and (J) with respect to
GHGs. This is because the PSD permitting program previously approved by
the EPA into the SIP continues to require that PSD permits issued to
``anyway sources'' contain limitations on GHG emissions based on the
application of BACT. The EPA most recently approved revisions to Utah's
PSD program on February 6, 2014 (79 FR 7070). The approved Utah PSD
permitting program still contains some provisions regarding Step 2
sources that are no longer necessary in light of the Supreme Court
decision and DC Circuit amended judgment. Nevertheless, the presence of
these provisions in the previously-approved plan does not render the
infrastructure SIP submission inadequate to satisfy Elements (C),
(D)(i)(II), and (J). The SIP contains the PSD requirements for applying
the BACT requirement to greenhouse gas emissions from ``anyway
sources'' that are necessary at this time. The application of those
requirements is not impeded by the presence of other previously-
approved provisions regarding the permitting of Step 2 sources.
Accordingly, the Supreme Court decision and subsequent DC Circuit
judgment do not prevent the EPA's approval of Utah's infrastructure SIP
as to the requirements of Elements (C), (D)(i)(II) and (J).
Finally, we evaluate the PSD program with respect to current
requirements for PM2.5. In particular, on May 16, 2008, the
EPA promulgated the rule, ``Implementation of the New Source Review
Program for Particulate Matter Less Than 2.5 Micrometers
(PM2.5)'' (73 FR 28321). On October 20, 2010 the EPA
promulgated the rule, ``Prevention of Significant Deterioration (PSD)
for Particulate Matter Less Than 2.5 Micrometers (PM2.5)--
Increments, Significant Impact Levels (SILs) and Significant Monitoring
Concentration (SMC)'' (75 FR 64864). The EPA regards adoption of these
PM2.5 rules as a necessary requirement when assessing a PSD
program for the purposes of element (C).
On January 4, 2013, the U.S. Court of Appeals, in Natural Resources
Defense Council v. EPA, 706 F.3d 428 (D.C. Cir.), issued a judgment
that remanded the EPA's 2007 and 2008 rules implementing the 1997
PM2.5 NAAQS. The court ordered the EPA to ``repromulgate
these rules pursuant to Subpart 4 consistent with this opinion.'' Id.
at 437. Subpart 4 of part D, Title 1 of the CAA establishes additional
provisions for particulate matter nonattainment areas.
The 2008 Implementation rule addressed by Natural Resources Defense
Council, ``Implementation of New Source Review (NSR) Program for
Particulate Matter Less Than 2.5 Micrometers (PM2.5),'' (73
FR 28321, May 16, 2008), promulgated NSR requirements for
implementation of PM2.5 in nonattainment areas
(nonattainment NSR) and attainment/unclassifiable areas (PSD). As the
requirements of Subpart 4 only pertain to nonattainment areas, the EPA
does not consider the portions of the 2008 Implementation rule that
address requirements for PM2.5 attainment and unclassifiable
areas to be affected by the court's opinion. Moreover, the EPA does not
anticipate the need to revise any PSD requirements promulgated in the
2008 Implementation rule in order to comply with the court's decision.
Accordingly, the EPA's proposed approval of Utah's infrastructure SIP
as to elements C or J with respect to the PSD requirements promulgated
by the 2008 Implementation rule does not conflict with the court's
opinion.
The court's decision with respect to the nonattainment NSR
requirements promulgated by the 2008 Implementation rule also does not
affect the EPA's action on the present infrastructure action. The EPA
interprets the Act to exclude nonattainment area requirements,
including requirements associated with a nonattainment NSR program,
from infrastructure SIP submissions due three years after adoption or
revision of a NAAQS. Instead, these elements are typically referred to
as nonattainment SIP or attainment plan elements, which would be due by
the dates statutorily prescribed under subpart 2 through 5 under part
D, extending as far as 10 years following designations for some
elements.
The second PSD requirement for PM2.5 is contained in the
EPA's October 20, 2010 rule, ``Prevention of Significant Deterioration
(PSD) for Particulate Matter Less Than 2.5 Micrometers
(PM2.5)--Increments, Significant Impact Levels (SILs) and
Significant Monitoring Concentration (SMC)'' (75 FR 64864). The EPA
regards adoption of the PM2.5 increments as a necessary
requirement when assessing a PSD program for the purposes of element
(C).
On March 14, 2012, Utah submitted revisions to the PSD program that
adopt by reference federal provisions of 40 CFR part 52, section 21, as
they existed on July 1, 2011. As that date is after the effective date
of the two rules, the submission incorporates those requirements. The
EPA approved the necessary portions of Utah's March 14, 2012 submission
on October 25, 2013 (78 FR 63883). Utah's SIP-approved PSD program
meets current requirements for PM2.5. The EPA therefore is
proposing to approve Utah's SIP for the 2008 ozone, 2008 Pb, 2010
NO2, 2010 SO2 and 2012 PM2.5 NAAQS
with respect to the requirement in section 110(a)(2)(C) to include a
permit program in the SIP as required by part C of the Act.
Minor NSR
The State has a SIP-approved minor NSR program, adopted under
section 110(a)(2)(C) of the Act. The minor NSR program is found in
section II of the Utah SIP, and was approved by the EPA as section 2 of
the SIP (68 FR 37744, June 25, 2003). Since approval of the minor NSR
program, the State and the EPA have relied on the program to assure
that new and modified sources not captured by the major NSR permitting
programs do not interfere with attainment and maintenance of the NAAQS.
Utah's minor NSR program, as approved into the SIP, covers the
construction and modification of stationary sources of regulated NSR
pollutants, including PM2.5, lead, and ozone and its
precursors.
The EPA is proposing to approve Utah's infrastructure SIP for the
2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2 and 2012
PM2.5 NAAQS with respect to the general requirement in
section 110(a)(2)(C) to include a program in the SIP that regulates the
enforcement, modification, and construction of any stationary source as
necessary to assure that the NAAQS are achieved.
4. Interstate Transport: The interstate transport provisions in CAA
section 110(a)(2)(D)(i) (also called ``good neighbor'' provisions)
require each state to submit a SIP that prohibits emissions that will
have certain adverse air quality effects in other states. CAA section
110(a)(2)(D)(i) identifies four distinct elements related to the
impacts of air pollutants transported across state lines. The two
elements under 110(a)(2)(D)(i)(I) require SIPs to contain adequate
provisions to prohibit any source or other type of emissions activity
within the state from emitting air pollutants that will (element 1)
contribute significantly to nonattainment in any other state with
respect to any such national primary or secondary NAAQS, and (element
2) interfere with maintenance by any other state with respect to the
same NAAQS. The two elements under 110(a)(2)(D)(i)(II) require SIPs to
contain adequate provisions to prohibit emissions that will interfere
with
[[Page 24530]]
measures required to be included in the applicable implementation plan
for any other state under part C (element 3) to prevent significant
deterioration of air quality or (element 4) to protect visibility. In
this action, the EPA is only addressing element 3 of CAA section
110(a)(2)(D)(i)(II) for the 2008 ozone, 2008 Pb, 2010 SO2,
2010 NO2 and 2012 PM2.5 NAAQS. All other
transport elements will be addressed in separate rulemaking actions.
Evaluation of Interference With Measures To Prevent Significant
Deterioration (PSD)
With regard to the PSD portion of CAA section 110(a)(2)(D)(i)(II),
this requirement may be met by a state's confirmation in an
infrastructure SIP submission that new major sources and major
modifications in the state are subject to a comprehensive EPA-approved
PSD permitting program in the SIP that applies to all regulated new
source review (NSR) pollutants and that satisfies the requirements of
the EPA's PSD implementation rules.\4\ As noted in the discussion for
infrastructure element (C) earlier in this notice, the EPA is proposing
to approve CAA section 110(a)(2) element (C) for Utah's infrastructure
SIP for the 2008 Pb, 2008 ozone, 2010 NO2, 2010
SO2, and 2012 PM2.5 NAAQS with respect to PSD
requirements. As discussed in detail in that section, Utah's SIP meets
the current PSD-related requirements of section 110(a)(2)(C). For this
reason, we are also proposing to approve Utah's infrastructure SIP as
meeting the 110(a)(2)(D)(i)(II) element 3 (PSD) requirements for 2006
24-hour PM2.5 NAAQS.
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\4\ See 2013 Memo at 31.
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In-state sources not subject to PSD for a particular NAAQS because
they are in a nonattainment area for that standard may also have the
potential to interfere with PSD in an attainment or unclassifiable area
of another state.\5\ One way a state may satisfy element 3 with respect
to these sources is by citing an air agency's EPA-approved
nonattainment NSR provisions addressing any pollutants for which the
state has designated nonattainment areas. Utah has a SIP-approved
nonattainment NSR program which ensures regulation of major sources and
major modifications in nonattainment areas, and therefore satisfies
element 3 with regard to this requirement.\6\
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\5\ Id. at 31.
\6\ See R307-403.
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The EPA is proposing to approve the infrastructure SIP submission
with regard to the requirements of element 3 of section 110(a)(2)(D)(i)
for the 2006 PM2.5, 2008 Pb, 2008 Ozone, 2010
NO2, 2010 SO2 and 2012 PM2.5 NAAQS.
5. Interstate and International transport provisions: CAA section
110(a)(2)(D)(ii) requires SIPs to include provisions ensuring
compliance with the applicable requirements of CAA sections 126 and 115
(relating to interstate and international pollution abatement).
Specifically, CAA section 126(a) requires new or modified major sources
to notify neighboring states of potential impacts from the source.
Section 126(a) of the CAA requires notification to affected, nearby
states of major proposed new (or modified) sources. Sections 126(b) and
(c) pertain to petitions affected states may seek from the
Administrator of the EPA (Administrator) regarding sources violating
the ``interstate transport'' provisions of section 110(a)(2)(D)(i).
Section 115 of the CAA similarly pertains to international transport of
air pollution.
As required by 40 CFR 51.166(q)(2)(iv), Utah's SIP-approved PSD
program requires notice to states whose air quality may be impacted by
the emissions of sources subject to PSD.\7\ This suffices to meet the
notice requirement of section 126(a).
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\7\ See R307-110-9.
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Utah has no pending obligations under sections 126(c) or 115(b) of
the CAA; therefore, its SIP currently meets the requirements of those
sections. In summary, the SIP meets the requirements of CAA section
110(a)(2)(D)(ii), and the EPA is therefore proposing approval of this
element for the 2008 Pb, 2008 ozone, 2010 NO2, 2010
SO2 and 2012 PM2.5 NAAQS. The EPA is also
proposing to approve the Utah SIP as meeting the requirements of
section 110(a)(2)(D)(ii) for the 1997 and 2006 PM2.5 NAAQS.
Utah submitted an infrastructure certification generally addressing CAA
section 110(a)(2)(D) for the 1997 PM2.5 NAAQS on December 3,
2007, and 2006 PM2.5 NAAQS on September 21, 2010.
6. Adequate resources: Section 110(a)(2)(E)(i) requires states to
provide ``necessary assurances that the State [. . .] will have
adequate personnel, funding, and authority under State law to carry out
[the SIP] (and is not prohibited by any provision of federal or state
law from carrying out the SIP or portion thereof).'' Section
110(a)(2)(E)(ii) also requires each state to ``comply with the
requirements respecting State boards'' under CAA section 128. Section
110(a)(2)(E)(iii) requires states to provide ``necessary assurances
that, where the State has relied on a local or regional government,
agency, or instrumentality for the implementation of any [SIP]
provision, the State has responsibility for ensuring adequate
implementation of such [SIP] provision.''
a. Sub-Elements (i) and (iii): Adequate Personnel, Funding, and Legal
Authority Under State Law To Carry Out Its SIP, and Related Issues
The provisions contained in Chapter 2 of Title 19 of the Utah Code
and Utah SIP Section I, Legal Authority provide UDAQ and the AQB
adequate authority to carry out its SIP obligations with respect to the
2008 Pb, 2008 ozone, 2010 NO2, 2010
SO2 and 2012 PM2.5 NAAQS. The State receives
sections 103 and 105 grant funds through its Performance Partnership
Grant along with required state matching funds to provide funding
necessary to carry out Utah's SIP requirements (Utah SIP Section V,
Resources). Utah's Performance Partnership Agreement (available within
the docket) with the EPA documents resources needed to provide
resources to carry out agreed upon environmental program goals,
measures, and commitments, including developing and implementing
appropriate SIPs for all areas of the State. Annually, states update
these grant commitments based on current SIP requirements, air quality
planning, and applicable requirements related to the NAAQS. Utah
satisfactorily met all commitments agreed to in the Air Planning
Agreement for fiscal year 2015. Furthermore, R307-414, Permits: Fees
for Approval Orders, requires the owner and operator of each new major
source or major modification to pay a fee sufficient to cover
reasonable costs of reviewing and acting upon the notice of intent and
implementing and enforcing requirements placed on such source by any
approval order issued. Collectively, these rules and commitments
provide evidence that Utah DAQ has adequate personnel, funding, and
legal authority to carry out the State's implementation plan and
related issues.
With respect to section 110(a)(2)(E)(iii), the regulations cited by
Utah in their certifications (Utah SIP Section VI, Intergovernmental
Cooperation) and contained within this docket also provide the
necessary assurances that the State has responsibility for adequate
implementation of SIP provisions by local governments. Therefore, we
propose to approve Utah's SIP as meeting the requirements of section
110(a)(2)(E)(i) and (E)(iii) for the 2008 Pb, 2008 ozone,
2010 NO2, 2010 SO2 and 2012 PM2.5
NAAQS.
[[Page 24531]]
b. Sub-Element (ii): State Boards
Section 110(a)(2)(E)(ii) requires each state's SIP to contain
provisions that comply with the requirements of section 128 of the CAA.
Section 128 contains two explicit requirements: (i) That ``any board or
body which approves permits or enforcement orders under [the CAA] shall
have at least a majority of members who represent the public interest
and do not derive any significant portion of their income from persons
subject to permits or enforcement orders'' under the CAA; and (ii) that
``any potential conflicts of interest by members of such board or body
or the head of an executive agency with similar powers be adequately
disclosed.''
In our November 25, 2013 (78 FR 63883) action, we disapproved
Utah's April 17, 2008 and September 21, 2010 infrastructure SIP
submissions for the 1997 and 2006 PM2.5 NAAQS for CAA
Section 110(a)(2)(E)(ii) because the Utah SIP did not contain
provisions meeting requirements of CAA section 128. Under section
110(c)(1)(B), this disapproval started a two-year clock for the EPA to
promulgate a federal implementation plan (FIP) to address the
deficiency.
On March 14, 2016, the EPA received a submission from the State of
Utah to address the requirements of section 128, containing new rule
language approved by the Utah AQB on March 2, 2016. A copy of the
submission, including the new rules, Conflict of Interest R307-104-1
(Authority), R307-104-2 (Purpose) and R307-104-3 (Disclosure of
conflict of interest), is available within this docket. These rules
address conflict of interest requirements of section 128(a)(2). We
propose to approve this new rule language as meeting the requirements
of section 128 for the reasons explained in more detail below. Because
this revision meets the requirements of section 128, we also propose to
approve the State's infrastructure SIP submissions for element
110(a)(2)(E)(ii). The State submitted the provisions to meet section
128 separately, but section 128 is not NAAQS-specific and once the
State has met the requirements of section 128, that is sufficient for
purposes of section 110(a)(2)(E)(ii) for all NAAQS. If we finalize this
proposed approval for the 2008 Pb, 2008 ozone, 2010
NO2, 2010 SO2, and 2012 PM2.5 NAAQS,
this will also resolve the prior disapproval for element
110(a)(2)(E)(ii) for the 1997 and 2006 PM2.5 NAAQS and
terminate the EPA's FIP obligation.
We are proposing to approve the State's March 14, 2016 SIP
submission as meeting the requirements of section 128 because we
believe that it complies with the statutory requirements and is
consistent with the EPA's guidance recommendations concerning section
128. In 1978, the EPA issued a guidance memorandum recommending ways
states could meet the requirements of section 128, including suggested
interpretations of certain key terms in section 128.\8\ In this
proposal notice, we discuss additional relevant aspects of section 128.
We first note that, in the conference report of the 1977 amendments to
the CAA, the conference committee stated, ``[i]t is the responsibility
of each state to determine the specific requirements to meet the
general requirements of [section 128].'' \9\ This legislative history
indicates that Congress intended states to have some latitude in
adopting SIP provisions with respect to section 128, so long as states
meet the statutory requirements of the section. We also note that
Congress explicitly provided in section 128 that states could elect to
adopt more stringent requirements, as long as the minimum requirements
of section 128 are met.
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\8\ Memorandum from David O. Bickart, Deputy General Counsel, to
Regional Air Directors, Guidance to States for Meeting Conflict of
Interest Requirements of Section 128 (Mar. 2, 1978).
\9\ H.R. Rep. 95-564 (1977), reprinted in 3 Legislative History
of the Clean Air Act Amendments of 1977, 526-27 (1978).
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In implementing section 128, the EPA has identified a number of key
considerations relevant to evaluation of a SIP submission. The EPA has
identified these considerations in the 1978 guidance and in subsequent
rulemaking actions on SIP submissions relevant to section 128, whether
as SIP revisions for this specific purpose or as an element of broader
actions on infrastructure SIP submissions for one or more NAAQS.
Each state must meet the requirements of section 128 through
provisions that the EPA approves into the state's SIP and are thus made
federally enforceable. Section 128 explicitly mandates that each SIP
``shall contain requirements'' that satisfy subsections 128(a)(1) and
128(a)(2). A mere narrative description of state statutes or rules, or
of a state's current or past practice in constituting a board or body
and in disclosing potential conflicts of interest, is not a requirement
contained in the SIP and does not satisfy the plain text of section
128.
Subsection 128(a)(1) applies only to states that have a board or
body that is composed of multiple individuals and that, among its
duties, approves permits or enforcement orders under the CAA. It does
not apply in states that have no such multi-member board or body that
performs these functions, and where instead a single head of an agency
or other similar official approves permits or enforcement orders under
the CAA. This flows from the text of section 128, for two reasons.
First, as subsection 128(a)(1) refers to a majority of members of the
board or body in the plural, we think it reasonable to read subsection
128(a)(1) as not creating any requirements for an individual with sole
authority for approving permits or enforcement orders under the CAA.
Second, subsection 128(a)(2) explicitly applies to the head of an
executive agency with ``similar powers'' to a board or body that
approves permits or enforcement orders under the CAA, while subsection
128(a)(1) omits any reference to heads of executive agencies. We infer
that subsection 128(a)(1) should not apply to heads of executive
agencies who approve permits or enforcement orders. States with no
multi-member board or body that performs these functions, and instead
have a single head of an agency or other similar official who approves
CAA permits or enforcement orders, can satisfy the requirements of CAA
128(a)(1) with a negative declaration to that effect.
Subsection 128(a)(2) applies to all states, regardless of whether
the state has a multi-member board or body that approves permits or
enforcement orders under the CAA. Although the title of section 128 is
``State boards,'' the language of subsection 128(a)(2) explicitly
applies where the head of an executive agency, rather than a board or
body, approves permits or enforcement orders. In instances where the
head of an executive agency delegates his or her power to approve
permits or enforcement orders, or where statutory authority to approve
permits or enforcement orders is nominally vested in another state
official, the requirement to adequately disclose potential conflicts of
interest still applies. In other words, the EPA interprets section
128(a)(2) to apply to all states, regardless of whether a state board
or body approves permits or enforcement orders under the CAA or whether
a head of a state agency (or his/her delegates) performs these duties.
Thus, all state SIPs must contain provisions that require adequate
disclosure of potential conflicts of interest in order to meet the
requirements of subsection 128(a)(2). The question of which entities or
parties must be subject to such disclosure requirements must be
evaluated by states and the EPA in light of the specific facts and
circumstances of each state's regulatory structure.
[[Page 24532]]
A state may satisfy the requirements of section 128 by submitting
for adoption into the SIP a provision of state law that closely tracks
or mirrors the language of the applicable provisions of section 128. A
state may take this approach in two ways. First, the state may adopt
the language of subsections 128(a)(1) and 128(a)(2) verbatim. Under
this approach, the state will be able to meet the continuing
requirements of section 128 without any additional, future SIP
revisions, even if the state adds or removes authority, either at the
state or local level, to individual or to boards or bodies to approve
permits or enforcement orders under the CAA so long as the state
continues to meet section 128 requirements.
Second, the state may modify the language of subsections 128(a)(1)
(if applicable) and 128(a)(2) to name the particular board, body, or
individual official with approval authority. In this case, if the state
subsequently modifies that authority, the state may have to submit a
corresponding SIP revision to meet the continuing requirements of
section 128. If the state chooses to not mirror the language of section
128, the state may adopt state statutes and/or regulations that
functionally impose the same requirements as those of section 128,
including definitions for key terms such as those recommended in the
EPA's 1978 guidance. While either of these approaches would meet the
minimum requirements of section 128, the statute also explicitly
authorizes states to adopt more stringent requirements, for example to
impose additional requirements for recusal of board members from
decisions, above and beyond the explicit board composition
requirements. Although such recusal alone does not meet the
requirements of section 128, states have the authority to require that
over and above the explicit requirements of section 128. These
approaches give states flexibility in implementing section 128, while
still ensuring consistency with the statute.
As previously explained, the EPA interprets subsection 128(a)(1) to
apply only to states that have a board or body with multiple members
that, among its duties, approves permits or enforcement orders under
the Act. In its 2012 PM2.5 NAAQS certification, the State
asserts that there is no such multi-member board or body, citing Utah
Code section 19-2-104, Powers of the board. Subsection 19-2-104(7)
specifies that the Utah AQB lacks authority over permits, and
subsection 19-2-104(3) gives the Utah AQB authority only to recommend
that the Director issue and enforce orders. The EPA proposes to
determine that the Utah AQB does not approve permits or enforcement
orders under the Act, and as a result, Utah need not submit any
provisions to address the requirements of section 128(a)(1).\10\
However, the EPA interprets subsection 128(a)(2) to apply to all
states, regardless of whether the state has a multi-member board that
approves permits or enforcement orders. As a result, 128(a)(2) applies
to Utah, and, as previously explained, must be met through SIP-
approved, federally enforceable provisions.
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\10\ In 2012, the Utah Legislature amended state law to
generally transfer authority of the Utah AQB over permits and
enforcement orders to the Director of Utah DAQ and Executive
Director of Utah DEQ. See 78 FR 52477, 52482 (Aug. 23, 2013).
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The EPA has evaluated Utah's submittal containing R307-104-1
(Authority), R307-104-2 (Purpose) and R307-104-3 (Disclosure of
conflict of interest) (available within this docket) from the State in
light of the requirements of section 128, these key considerations
previously noted, and the recommendations in the 1978 guidance. To meet
the requirements of subsection 128(a)(2), the State's R307-104-3
(Disclosure of conflict of interest), includes disclosure of conflicts
of interest requirements applying to ``any member of the board or body
which approves permits or enforcement orders, the head of the Utah
[DAQ] with similar powers, and the head of the Utah [DEQ] with similar
powers.'' Under Utah's administrative procedures, the Director of Utah
DAQ has the initial authority to issue air permits and enforcement
orders, and the Executive Director of Utah DEQ has the ultimate
authority to resolve administrative adjudicative proceedings regarding
permits and enforcement orders. See Utah Code 19-1-301, 19-1-301.5.
Thus, Utah's submittal addresses disclosure of potential conflicts of
interest from the heads of executive agencies that approve permits and
enforcement orders under the Act.
Utah's provisions are also sufficient for adequate disclosure.
Under R307-104-3(2), ``[e]very individual listed in R307-104-3(1) who
is an officer, director, agent, employee, or the owner of a substantial
interest in any business entity which is subject to the regulation of
the agency by which the individual listed in R307-104-3(1) is employed,
shall disclose any position held and the precise nature and value of
the interest upon first becoming a public officer or public employee
listed in R307-104-3(1), and again whenever his or her position in the
business entity changes significantly or if the value of his or her
interest in the entity is significantly increased.'' This language
covers a sufficiently broad range of potential conflicts of interest
with any business subject to regulation by Utah DAQ, including
permittees and the subjects of enforcement orders. The form of
disclosure is also adequate: It is made in a sworn statement to the
attorney general and is made publicly available. We propose to find
that these procedures provide adequate disclosure of potential
conflicts of interest within the meaning of subsection 128(a)(2).
In summary, the EPA proposes to approve Utah's March 14, 2016
submittal into the SIP to meet the requirements of section 128 of the
Act. We also propose to approve Utah's infrastructure SIP with respect
to the requirements of Section 110(a)(2)(E)(ii) for 2008 Pb, 2008
ozone, 2010 NO2, 2010 SO2 and 2012
PM2.5 NAAQS.
7. Stationary source monitoring system: Section 110(a)(2)(F)
requires: (i) ``the installation, maintenance, and replacement of
equipment, and the implementation of other necessary steps, by owners
or operators of stationary sources to monitor emissions from such
sources; (ii) periodic reports on the nature and amounts of emissions
and emissions-related data from such sources; and (iii) correlation of
such reports by the State agency with any emission limitations or
standards established pursuant to [the Act], which reports shall be
available at reasonable times for public inspection.''
The provisions cited by Utah in SIP Section III Source
Surveillance, (including R307-150, and R307-165) pertain to its program
of periodic emissions testing and plant inspections of stationary
sources, and related testing requirements and protocols (including
periodic reporting) to assure compliance with emissions limits. R307-
170 requires certain large sources to install and maintain continuous
emission monitors to assure compliance with emission limitations
established in approval orders and the SIP. In addition, Utah provides
for monitoring, recordkeeping, and reporting requirements for sources
subject to minor and major source permitting.
Furthermore, Utah is required to submit emissions data to the EPA
for purposes of the National Emissions Inventory (NEI). The NEI is the
EPA's central repository for air emissions data. The EPA published the
Air Emissions Reporting Rule (AERR) on December 5, 2008, which modified
the requirements for collecting and reporting air emissions data (73 FR
76539). The AERR shortened the time states had to report emissions data
from 17 to 12
[[Page 24533]]
months, giving states one calendar-year to submit emissions data. All
states are required to submit a comprehensive emissions inventory every
three years and report emissions for certain larger sources annually
through the EPA's online Emissions Inventory System. States report
emissions data for the six criteria pollutants and their associated
precursors--nitrogen oxides, sulfur dioxide, ammonia, lead, carbon
monoxide, particulate matter and volatile organic compounds. Many
states also voluntarily report emissions of hazardous air pollutants.
Utah made its latest update to the NEI in March 2016. The EPA compiles
the emissions data, supplementing it where necessary, and releases it
to the general public through the Web site https://www.epa.gov/air-emissions-inventories.
Based on the analysis above, we propose to approve the Utah SIP as
meeting the requirements of CAA section 110(a)(2)(F) for the 2008 Pb,
2008 ozone, 2010 NO2, 2010 SO2 and
2012 PM2.5 NAAQS.
8. Emergency powers: Section 110(a)(2)(G) of the CAA requires
infrastructure SIPs to ``provide for authority comparable to that in
[CAA section 303] and adequate contingency plans to implement such
authority[.]''
Under CAA section 303, the EPA Administrator has authority to bring
suit to immediately restrain an air pollution source that presents an
``imminent and substantial endangerment to public health or welfare, or
the environment.'' \11\ If such action may not practicably assure
prompt protection, then the Administrator has authority to issue
temporary administrative orders to protect the public health or
welfare, or the environment, and such orders can be extended if the EPA
subsequently files a civil suit. We propose to find that Utah's
infrastructure SIP submittals provide for authority for the State
comparable to that granted to the EPA Administrator to act in the face
of an imminent and substantial endangerment to the public's health or
welfare, or the environment.
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\11\ A discussion of the requirements for meeting CAA section
303 is provided in our notice of proposed rulemaking: Promulgation
of State Implementation Plan Revisions; Infrastructure Requirements
for the 1997 and 2006 PM2.5, 2008 Lead, 2008 Ozone, and
2010 NO2 National Ambient Air Quality Standards; South
Dakota (79 FR 71040, Dec. 1, 2014) under ``VI. Analysis of State
Submittals, 8. Emergency powers.''
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Utah's SIP submittals with regard to the section 110(a)(2)(G)
emergency order requirements cite the EPA approved provisions (State
SIP Section I Legal Authority codified at R307-110-2) to abate
pollutant emissions on an emergency basis to prevent substantial
endangerment to the health of persons. Utah Code 19-2-116(3)(a) also
provides the director the power to ``initiate an action for appropriate
injunctive relief . . . when it appears necessary for the protection of
health and welfare.'' Utah Code 19-2-112(1)(a) provides authority to
the ``executive director, with the concurrence of the governor'' to
order people ``causing or contributing to . . . air pollution to reduce
or discontinue immediately the emission of air pollutants'' if the
``executive director finds that a generalized condition of air
pollution exists and that it creates an emergency requiring immediate
action to protect human health or safety.'' Utah Code 19-2-112(2)(a)
describes how in instances of an ``absence of a generalized condition
of air pollution'' referred to in subsection (1), the executive
director may still commence adjudicative proceedings as long as the
executive director ``finds that emissions from the operation of one or
more air pollutant sources is causing imminent danger to human health
or safety.''
In regard to imminent and substantial endangerment to the
environment, Utah's Emergency Management Act allows the Governor to
issue rules and regulations having the ``full force and effect of law''
during a state of emergency. Additionally, Utah Code 53-2a-209(1)
allows the Governor to suspend rules and regulations of state agencies
that would prevent the ability to adequately deal with such disasters.
See Utah Code 53-2a-209(3).
While no single Utah statute mirrors the authorities of CAA section
303, we propose to find that the combination of Utah Code, UAC Rules,
and Utah's Emergency Management Act provisions previously discussed
provide for authority comparable to section 303. Section 303 authorizes
the Administrator to immediately bring suit to restrain and issue
emergency orders when necessary, to enable the Administrator to take
prompt administrative action against any person causing or contributing
to air pollution that presents an imminent and substantial endangerment
to public health or welfare, or the environment. Therefore, we propose
that Utah's SIP submittals sufficiently meet the requirements of CAA
110(a)(2)(G) because they demonstrate that Utah has authority
comparable to CAA section 303.
States must also have adequate contingency plans adopted into their
SIP to implement the air agency's emergency episode authority (as
previously discussed). This can be done by submitting a plan that meets
the applicable requirements of 40 CFR part 51, subpart H for the
relevant NAAQS if the NAAQS is covered by those regulations. The EPA
approved Utah's State SIP Section VII (Prevention of Air Pollution
Emergency Episodes), codified at R307-110-8, most recently on February
14, 2006 at 71 FR 7679. We find that Utah's air pollution emergency
rules include PM10,\12\ ozone, NO2, and
SO2; establish stages of episode criteria; provide for
public announcement whenever any episode stage has been determined to
exist; and specify emission control actions to be taken at each episode
stage, consistent with the EPA emergency episode SIP requirements set
forth at 40 CFR part 51 subpart H (prevention of air pollution
emergency episode) for particulate matter, ozone, NO2, and
SO2.
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\12\ The EPA has not yet promulgated regulations for ambient
levels pertaining to priority levels for PM2.5 under the
2012 NAAQS (2013 Memo, p. 47). EPA's September 25, 2009 Memo
(available within the docket) suggested that states with areas that
have had a PM2.5 exceedance greater than 140.4 mg/m3
should develop and submit an emergency episode plan. If no such
concentration was recorded in the last three years, the guidance
suggested that the State can rely on its general emergency
authorities. In this rulemaking, we continue to view these
suggestions as appropriate in assessing Utah's SIP for this element.
Utah has not had such a recorded PM2.5 level and thus an
emergency episode plan for PM2.5 is not necessary. The
SIP therefore meets the requirements of CAA section 110(a)(2)(G) for
the 2012 PM2.5 NAAQS.
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As noted in the 2011 Memo ``based on [the] EPA's experience to date
with the Pb NAAQS and designating Pb nonattainment areas, [the] EPA
expects that an emergency episode associated with Pb emissions would be
unlikely and, if it were to occur, would be the result of a malfunction
or other emergency situation at a relatively large source of Pb'' (page
14).\13\ Accordingly, the EPA believes the central components of a
contingency plan would be to reduce emissions from the source at issue
and communicate with the public as needed. We note that 40 CFR part 51,
subpart H (51.150-51.152) and 40 CFR part 51, Appendix L do not apply
to Pb.
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\13\ October 14, 2011, ``Guidance on Infrastructure SIP Elements
Required Under Sections 110(a)(1) and (2) for the 2008 Lead (Pb)
National Ambient Air Quality Standards (NAAQS).''
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Based on the above analysis, we propose approval of Utah's SIP as
meeting the requirements of CAA section 110(a)(2)(G) for the 2008 Pb,
2008 ozone, and 2010 NO2, 2010 SO2 and 2012
PM2.5 NAAQS.
9. Future SIP revisions: Section 110(a)(2)(H) requires that SIPs
provide for revision of such plan: (i) ``[f]rom time to time as may be
necessary to take account of revisions of such national primary or
secondary ambient air
[[Page 24534]]
quality standard or the availability of improved or more expeditious
methods of attaining such standard[;] and (ii) except as provided in
paragraph (3)(C), whenever the Administrator finds on the basis of
information available to the Administrator that the [SIP] is
substantially inadequate to attain the [NAAQS] which it implements or
to otherwise comply with any additional requirements under this
[Act].''
Utah SIP Section I cites 19-2-104 and 19-2-109 of the Utah Code.
Sections 19-2-104 and 19-2-109 give the AQB sufficient authority to
meet the requirements of CAA section 110(a)(2)(H). Therefore, we
propose to approve Utah's SIP as meeting the requirements of CAA
section 110(a)(2)(H).
10. Consultation with government officials, public notification,
PSD and visibility protection: Section 110(a)(2)(J) requires that each
SIP ``meet the applicable requirements of section 121 of this title
(relating to consultation), section 127 of this title (relating to
public notification), and part C of this subchapter (relating to PSD of
air quality and visibility protection).''
In its certifications, the State cites SIP Section I (Legal
Authority) adopting requirements for transportation consultation, SIP
Section VI (Intergovernmental Cooperation), and SIP Section XII
(Transportation Conformity Consultation) to meet the requirements of
CAA section 121. The State has demonstrated that it has the authority
and rules in place to provide a process of consultation with general
purpose local governments, designated organizations of elected
officials of local governments and any Federal Land Manager having
authority over federal land to which the SIP applies, consistent with
the requirements of CAA section 121 (see 59 FR 2988, Jan. 20, 1994).
Furthermore, SIP section XVI, cited by Utah, meets the general
requirements of CAA section 127 to notify the public when the NAAQS
have been exceeded.
The State has a SIP-approved PSD program that incorporates by
reference the federal program at 40 CFR 52.21; these provisions are
located in R307-405-2 of the UAC. The EPA has further evaluated Utah's
SIP-approved PSD program in this proposed action under VI.3 of this
notice which analyzes whether the Utah SIP has met CAA section
110(a)(2)(C). There, we propose approval with respect to the PSD
requirements of element (C); we likewise do so here with respect to the
PSD requirements of element (J).
Finally, with regard to the applicable requirements for visibility
protection, the EPA recognizes states are subject to visibility and
regional haze program requirements under part C of the Act. In the
event of the establishment of a new NAAQS, however, the visibility and
regional haze program requirements under part C do not change. Thus, we
find that there are no applicable visibility requirements under section
110(a)(2)(J) when a new NAAQS becomes effective.
Based on the above analysis, we propose to approve the Utah SIP as
meeting the requirements of CAA section 110(a)(2)(J) for the 2008 Pb,
2008 ozone, 2010 NO2, 2010 SO2 and
2012 PM2.5 NAAQS.
11. Air quality and modeling/data: Section 110(a)(2)(K) requires
each SIP provide for: (i) ``the performance of such air quality
modeling as the Administrator may prescribe for the purpose of
predicting the effect on ambient air quality of any emissions of any
air pollutant for which the Administrator has established a [NAAQS];
and (ii) the submission, upon request, of data related to such air
quality modeling to the Administrator.''
UAC rule R307-405-13 incorporates by reference the air quality
model provisions of 40 CFR 52.21(l), which includes the air quality
model requirements of appendix W of 40 CFR part 51, pertaining to the
Guideline on Air Quality Models. Additionally, Utah Code 19-104(1)(a)-
(b) provide the AQB with the authority to propose and finalize rules
that require air quality modeling for the purpose of predicting the
effect on ambient air quality relating to NAAQS. As a result, the SIP
provides for such air quality modeling as the Administrator has
prescribed.
Therefore, we propose to approve the Utah SIP as meeting the CAA
section 110(a)(2)(K) for the 2008 Pb, 2008 ozone, 2010
NO2, 2010 SO2 and 2012 PM2.5 NAAQS.
12. Permitting fees: Section 110(a)(2)(L) requires ``the owner or
operator of each major stationary source to pay to the permitting
authority, as a condition of any permit required under this [Act], a
fee sufficient to cover[:] (i) The reasonable costs of reviewing and
acting upon any application for such a permit[;] and (ii) if the owner
or operator receives a permit for such source, the reasonable costs of
implementing and enforcing the terms and conditions of any such permit
(not including any court costs or other costs associated with any
enforcement action), until such fee requirement is superseded with
respect to such sources by the Administrator's approval of a fee
program under [title] V.''
UAC rule R307-414, Permits: Fees for Approval Orders, requires the
owner and operator of each new major source or major modification to
pay a fee sufficient to cover the reasonable costs of reviewing and
acting upon the notice of intent and implementing and enforcing
requirements placed on such source by any approval order issued. The
EPA approved R307-414 most recently on February 14, 2006 at 71 FR 7679.
SIP Section I (Legal Authority) ``identifies the statutory authority to
charge a fee to major sources to cover permit and enforcement expenses
. . .'' SIP Section I was codified at R307-10-2 and the EPA approved it
most recently on June 25, 2003 at 68 FR 37744.
We also note that all the State's certifications cite R307-415
which is the regulation that provides for collection of permitting fees
under Utah's approved title V permit program (60 FR 30192, June 8,
1995). As discussed in that approval, the State demonstrated that the
fees collected were sufficient to administer the program.
Therefore we propose to approve the submissions as supplemented by
the State for the 2008 Pb, 2008 ozone, 2010 NO2,
2010 SO2 and 2012 PM2.5 NAAQS.
13. Consultation/participation by affected local entities: Section
110(a)(2)(M) requires states to ``provide for consultation and
participation [in SIP development] by local political subdivisions
affected by [the SIP].''
The provisions cited in Utah's SIP submittals (SIP Section VI
(Intergovernmental Cooperation) codified at R307-110-7 and SIP Section
XII (Transportation Conformity Consultation) codified at R307-110-20,
contained within this docket) meet the requirements of CAA section
110(a)(2)(M). We propose to approve Utah's SIP as meeting these
requirements for the 2008 Pb, 2008 ozone, 2010
NO2, 2010 SO2 and 2012 PM2.5 NAAQS.
VII. What action is the EPA taking?
In this action, the EPA is proposing to approve infrastructure
elements for the 2008 Pb, 2008 ozone, 2010 NO2,
2010 SO2 and 2012 PM2.5 NAAQS from the State's
certifications as shown in Table 1. Elements we propose no action on
are reflected in Table 2. Finally, the EPA is proposing to approve a
new UAC submitted on March 14, 2016 to satisfy requirements of element
(E)(ii),which refers to requirements related to state boards.
A comprehensive summary of infrastructure elements, and revisions
and additions to the UAC organized by
[[Page 24535]]
the EPA's proposed rule action are provided in Table 1 and Table 2.
Table 1--List of Utah Infrastructure Elements and Revisions That the EPA
Is Proposing To Approve
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Proposed for approval
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December 3, 2007 submittal--1997 PM2.5 NAAQS: (D)(ii)
September 21, 2010 submittal--2006 PM2.5 NAAQS: (D)(ii)
January 19, 2012 submittal--2008 Pb NAAQS:
(A), (C), (D)(i)(II) element 3, (D)(ii), (E), (F), (G), (H), (J),
(K), (L) and (M).
June 2, 2013 submittal--2010 SO2 NAAQS:
(A), (C), (D)(i)(II) element 3, (D)(ii), (E), (F), (G), (H), (J),
(K), (L) and (M).
January 31, 2013 submittal--2008 Ozone NAAQS:
(A), (B), (C), (D)(i)(II) element 3, (D)(ii), (E), (F), (G), (H),
(J), (K), (L) and (M).
January 31, 2013 submittal--2010 NO2 NAAQS:
(A), (C), (D)(i)(II) element 3, (D)(ii), (E), (F), (G), (H), (J),
(K), (L) and (M).
December 4, 2015 submittal--2012 PM2.5 NAAQS:
(A), (C), (D)(i)(II) element 3, (D)(ii), (E), (F), (G), (H), (J),
(K), (L) and (M).
March 14, 2016 submittal--New Rules to UAC Rules, CAA Section 128
R307-104-1, R307-104-2 and R307-104-3.
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Table 2--List of Utah Infrastructure Elements and Revisions That the EPA
Is Proposing To Take No Action On
------------------------------------------------------------------------
Proposed for no action (Revision to be made in separate rulemaking
action)
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January 19, 2012 submittal--2008 Pb NAAQS:
(B), (D)(i)(I) elements 1 and 2, (D)(i)(II) element 4.
January 31, 2013 submittal--2008 Ozone NAAQS:
(D)(i)(I) elements 1 and 2, (D)(i)(II) element 4.
January 31, 2013 submittal--2010 NO2 NAAQS:
(B), (D)(i)(I) elements 1 and 2, (D)(i)(II) element 4.
June 2, 2013 submittal--2010 SO2 NAAQS:
(B), (D)(i)(I) elements 1 and 2, (D)(i)(II) element 4.
December 22, 2015 submittal--2012 PM2.5 NAAQS:
(B), (D)(i)(I) elements 1 and 2, (D)(i)(II) element 4.
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VIII. Incorporation by Reference
In this rule, the EPA is proposing to include in a final the EPA
rule regulatory text that includes incorporation by reference. In
accordance with requirements of 1 CFR 51.5, the EPA is proposing to
incorporate by reference the Utah Administrative Code Rules pertaining
to state board requirements VI.6. b. Sub-element (ii): State boards, of
this preamble. The EPA has made, and will continue to make, these
documents generally available electronically through
www.regulations.gov and/or in hard copy at the appropriate EPA office
(see the ADDRESSES section of this preamble for more information).
IX. Statutory and Executive Orders Review
Under the CAA, 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, the EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
proposed action merely approves some state law as meeting federal
requirements and disapproves other state law because it does not meet
federal requirements; this proposed action does not impose additional
requirements beyond those imposed by state law. For that reason, this
proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, Oct. 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, Aug. 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and,
Does not provide the 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, Feb. 16, 1994).
The SIP is not approved to apply on any Indian reservation land or
in any other area where the EPA or an Indian tribe has demonstrated
that a tribe has jurisdiction. In those areas of Indian country, the
rule does not have tribal implications and will not impose substantial
direct costs on tribal governments or preempt tribal law as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000).
[[Page 24536]]
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Greenhouse
gases, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: April 13, 2016.
Debra H. Thomas,
Acting Regional Administrator, Region 8.
[FR Doc. 2016-09586 Filed 4-25-16; 8:45 am]
BILLING CODE 6560-50-P
