[Federal Register Volume 76, Number 74 (Monday, April 18, 2011)]
[Rules and Regulations]
[Pages 21639-21652]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-9215]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2010-0909; FRL-9294-9]
Finding of Substantial Inadequacy of Implementation Plan; Call
for Utah State Implementation Plan Revision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: Pursuant to sections 110(a)(2)(H) and 110(k)(5) of the Clean
Air Act (CAA), EPA is finding that the Utah State Implementation Plan
(SIP) is substantially inadequate to attain or maintain the national
ambient air quality standards (NAAQS) or to otherwise comply with the
requirements of the CAA and issuing a call for the State of Utah to
revise its SIP. Specifically, the SIP includes Utah's unavoidable
breakdown rule (rule R307-107), which exempts emissions during
unavoidable breakdowns from compliance with emission limitations. This
rule undermines EPA's, Utah's, and citizens' ability to enforce
emission limitations that have been relied on to ensure attainment or
maintenance of the NAAQS or meet other CAA requirements. EPA is
requiring that the State revise the SIP to remove R307-107 or correct
its deficiencies and submit the revised SIP to EPA within 18 months of
the effective date of this final rule. If EPA finds that Utah has
failed to submit a complete SIP revision as required by this final rule
or if EPA disapproves such a revision, such a finding or disapproval
will trigger clocks for mandatory sanctions and an obligation for EPA
to impose a Federal Implementation Plan (FIP). If EPA makes such a
finding or disapproval, mandatory sanctions will apply such that the
offset sanction would apply 18 months after such finding or disapproval
and highway funding restrictions would apply six months later unless
EPA takes action to stay the imposition of the sanctions or to stop the
sanctions clock based on the State curing the SIP deficiencies.
In its proposed rulemaking action, EPA requested comment on whether
it should exercise its discretionary authority under CAA section 110(m)
to impose the highway funding restrictions sanctions in areas of the
State that would not be subject to mandatory sanctions. EPA is
deferring a decision on whether to impose sanctions under section
110(m) and will consider any comments on the issue of imposing
sanctions under section 110(m) if and when we take final action on this
issue in the future.
DATES: Effective Date: This final rule is effective May 18, 2011.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R08-OAR-2010-0909. All documents in the docket are listed on
the http://www.regulations.gov Web site. Although listed in the index,
some information is not publicly available, e.g., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the Internet and will be publicly available only in hard
copy form. Publicly available docket materials are available either
electronically through http://www.regulations.gov, or in hard copy at
the Air Program, Environmental Protection Agency (EPA), Region 8, 1595
Wynkoop Street, Denver, Colorado 80202-1129. EPA requests that if at
all possible, you contact the individual listed in the FOR FURTHER
INFORMATION CONTACT section to view the hard copy of the docket. You
may view the hard copy of the docket Monday through Friday, 8 a.m. to 4
p.m., excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT: Vanessa Hinkle, Air Program, Mailcode
8P-AR, Environmental Protection Agency, Region 8, 1595 Wynkoop Street,
Denver, Colorado 80202-1129, (303) 312-6561, or [email protected].
SUPPLEMENTARY INFORMATION:
Definitions
For the purpose of this document, the following definitions apply:
(i) The words or initials Act or CAA mean or refer to the Clean Air
Act, unless the context indicates otherwise.
(ii) The words EPA, we, us or our mean or refer to the United
States Environmental Protection Agency.
[[Page 21640]]
(iii) The initials NAAQS mean or refer to National Ambient Air
Quality Standards.
(iv) The initials NOX mean or refer to nitrogen oxides.
(v) The initials PM2.5 mean or refer to particulate matter with an
aerodynamic diameter less than or equal to a nominal 2.5 micrometers.
(vi) The initials PM10 mean or refer to particulate matter with an
aerodynamic diameter less than or equal to a nominal 10 micrometers.
(vii) The initials ppm mean or refer to parts per million.
(viii) The initials SIP mean or refer to State Implementation Plan.
(ix) The initials SO2 mean or refer to sulfur dioxide.
(x) The initials SSM mean or refer to startup, shutdown, and
malfunction.
(xi) The words State or Utah mean the State of Utah, unless the
context indicates otherwise.
(xii) The initials UBR mean or refer to the Utah unavoidable
breakdown rule, R307-107.
(xiii) The initials UDAQ mean or refer to the Utah Division of Air
Quality, Utah Department of Environmental Quality.
(xiv) The words 1982 Policy mean or refer to the September 28, 1982
EPA Memorandum signed by Kathleen M. Bennett, Assistant Administrator
for Air, Noise and Radiation, titled ``Policy on Excess Emissions
During Startup, Shutdown, Maintenance, and Malfunctions.''
(xv) The words 1983 Policy mean or refer to the February 15, 1983
EPA Memorandum signed by Kathleen M. Bennett, Assistant Administrator
for Air, Noise and Radiation, titled ``Policy on Excess Emissions
During Startup, Shutdown, Maintenance, and Malfunctions.''
(xvi) The words 1999 Policy mean or refer to the September 20, 1999
EPA Memorandum signed by Steven A. Herman, Assistant Administrator for
Enforcement and Compliance Assurance, and Robert Perciasepe, Assistant
Administrator for Air and Radiation, titled ``State Implementation
Plans: Policy Regarding Excess Emissions During Malfunctions, Startup,
and Shutdown.''
Table of Contents
I. Background
II. Final Action
III. Summary of Bases for Finding of Substantial Inadequacy
IV. Issues Raised by Commenters and EPA's Responses
A. Request for Comment Period Extension/Procedural Issues
B. Authority and Basis for a SIP Call
C. Sanctions
D. Time Period for Response to SIP Call
E. Miscellaneous Comments
V. Statutory and Executive Order Reviews
I. Background
On November 19, 2010, we published our proposed rulemaking action
in the Federal Register (75 FR 70888) in which we proposed to find the
Utah SIP substantially inadequate to attain or maintain the NAAQS or to
otherwise comply with the requirements of the CAA.\1\ We also proposed
to issue a SIP call to require the State of Utah to revise the SIP to
correct the inadequacies. In our proposal, we stated that, ``Utah rule
R307-107 contains various provisions that are inconsistent with EPA's
interpretations regarding the appropriate treatment of malfunction
events in SIPs and which render the Utah SIP substantially
inadequate.'' Id. at 70891. We went on to identify specific
deficiencies in R307-107 (also known as Utah's unavoidable breakdown
rule and sometimes referred to herein as the UBR). Id. at 70891-70893.
In particular, we explained that the UBR: (1) Does not treat all
exceedances of SIP and permit limits as violations; (2) could be
interpreted to grant the Utah executive secretary exclusive authority
to decide whether excess emissions constitute a violation; and (3)
improperly applies to Federal technology-based standards such as New
Source Performance Standards (NSPS) and National Emission Standards for
Hazardous Air Pollutants (NESHAPS). We explained why we were proposing
to find that these deficiencies in the UBR render the Utah SIP
substantially inadequate. Id. We proposed a 12-month deadline for the
State to respond to a final SIP call.
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\1\ Our proposal provided detailed background information
regarding EPA's CAA interpretations with respect to SIP malfunction
provisions, the history of Utah rule R307-107 and relevant SIP
actions, and our interactions with the State and others regarding
the rule over the years. See 75 FR 70889-891. We direct the reader
there for such background information.
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We also proposed the order and timing of mandatory sanctions under
CAA section 179(a) and requested comment on whether we should exercise
our discretionary authority to impose highway funding sanctions in all
areas of the State.
We requested comments on all aspects of our proposed action by
December 20, 2010. We subsequently extended the public comment period
through January 3, 2011. See 75 FR 79327 (December 20, 2010).
We received numerous comments. A number of commenters, particularly
citizens and environmental groups, supported our proposed action. We
also received a number of comments, primarily from State agencies and
industrial facilities and groups, that were critical of our proposed
action.
II. Final Action
We have considered all comments submitted and prepared responses,
which are contained in Section IV of this action, ``Issues Raised by
Commenters and EPA's Responses.'' None of the comments has caused us to
conclude that our proposal was unreasonable, and we are finalizing our
action as proposed, with the exception that we are requiring that the
State respond to the SIP call within 18 months rather than 12 months.
Specifically, for the reasons described in our notice of proposed
rulemaking (see 75 FR 70888) and in this action, EPA finds that the
Utah SIP is substantially inadequate to attain or maintain the NAAQS or
to otherwise comply with requirements of the CAA due to significant
deficiencies created by Utah's unavoidable breakdown rule, R307-107.\2\
Utah's rule R307-107 improperly undermines EPA's, Utah's, and citizens'
ability to enforce emission limitations that have been relied on in the
SIP to ensure attainment and maintenance of the NAAQS or meet other CAA
requirements. Pursuant to sections 110(a)(2)(H) and 110(k)(5) of the
CAA, EPA is requiring that the State revise the SIP to remove R307-107
or revise it to make it consistent with CAA requirements. Utah must
submit a revised SIP responding to this SIP call within 18 months of
the effective date of this final rule.
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\2\ We provide a summary of the bases for our finding of
substantial inadequacy in Section III of this action, ``Summary of
Bases for Finding of Substantial Inadequacy.''
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If Utah fails to submit a complete SIP revision that responds to
this final SIP call, section 179(a) of the CAA provides for EPA to
issue a finding of State failure. Such a finding will start mandatory
18-month and 24-month sanctions clocks and a 24-month clock for
promulgation of a FIP by EPA. The two sanctions that apply under CAA
section 179(b) are the 2-to-1 emission offset requirement for all new
and modified major sources subject to the nonattainment new source
review (NSR) program and restrictions on highway funding.
EPA issued an order of sanctions rule in 1994 (see 59 FR 39832
(August 4, 1994), codified at 40 CFR 52.31) but did not specify the
order of sanctions where a State fails to submit or submits a deficient
SIP in response to a SIP call. However, as we proposed (75 FR 70893-
[[Page 21641]]
70894), we have decided that the order of sanctions specified in 40 CFR
52.31 will apply here for the same reasons discussed in the preamble to
that rule. Thus, if Utah fails to submit the required SIP revision, or
submits a revision that EPA determines is incomplete or that EPA
disapproves, the 2-to-1 emission offset requirement will apply for all
new sources subject to the nonattainment NSR program 18 months
following such a finding or disapproval unless the State corrects the
deficiency before that date. The highway funding restrictions sanction
will also apply six months after the offset sanction applies unless the
State corrects the deficiency before that date. The provisions in 40
CFR 52.31 regarding staying the sanctions clock and deferring the
imposition of sanctions will also apply.
Mandatory sanctions under section 179 of the CAA generally apply
only in nonattainment areas. By its definition, the emission offset
sanction applies only in areas required to have a part D NSR program,
typically areas designated nonattainment.\3\ Section 179(b)(1)
expressly limits the highway funding restriction to nonattainment
areas. Additionally, EPA interprets the section 179 sanctions to apply
only in the area or areas of the State that are subject to or required
to have in place the deficient SIP and for the pollutant or pollutants
the specific SIP element addresses. In this case, mandatory sanctions
would apply in all areas designated nonattainment for a NAAQS within
the State because Utah rule R307-107 applies statewide and applies for
all NAAQS pollutants.
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\3\ An exception to this, not relevant here, is areas located in
the Ozone Transport Region, which are required to have a part D NSR
program regardless of the area's designation. See CAA section
184(b)(2).
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In addition to sanctions, if EPA finds that the State failed to
submit a complete SIP revision that responds to this SIP call or
disapproves such revision, CAA section 110(c) would require EPA to
promulgate a FIP no later than two years from the date of the finding
or the disapproval if the deficiency has not been corrected.
In its proposed rulemaking action (75 FR 70893-70894), EPA also
requested comment on whether it should exercise its discretionary
authority under CAA section 110(m) to impose the highway funding
restrictions sanction in areas of the State that would not be subject
to mandatory sanctions--i.e., areas other than nonattainment areas. EPA
is not finalizing action on the use of such discretionary authority in
this action. If EPA acts on the use of discretionary sanctions at a
later date, it will fully respond to relevant comments submitted in
response to the November 19, 2010 notice of proposed rulemaking.
III. Summary of Bases for Finding of Substantial Inadequacy
This section provides a brief summary of the bases for our finding
of substantial inadequacy. For further detail, please refer to our
notice of proposed rulemaking (75 FR 70888) and our response to
comments.
1. R307-107-1 provides an exemption from emission limits in the
Utah SIP and SIP-based permits for exceedances of such limits caused by
an unavoidable breakdown--``emissions resulting from unavoidable
breakdown will not be deemed a violation of these regulations.'' This
generic exemption, applicable to all Utah SIP limits, precludes any
enforcement when there is an unavoidable breakdown. Our interpretation
of the CAA is that an exemption from injunctive relief is never
appropriate, and that an exemption from penalties is only appropriate
in limited circumstances.\4\ Contrary to CAA section 302(k)'s
definition of emission limitation, the exemption in the UBR renders
emission limitations in the Utah SIP less than continuous and, contrary
to the requirements of CAA sections 110(a)(2)(A) and (C), undermines
the ability to ensure compliance with SIP emissions limitations relied
on to achieve the NAAQS and other relevant CAA requirements at all
times. Therefore, the UBR renders the Utah SIP substantially inadequate
to attain or maintain the NAAQS or to comply with other CAA
requirements, such as CAA sections 110(a)(2)(A) and (C) and 302(k), CAA
provisions related to prevention of significant deterioration (PSD) and
nonattainment NSR permits (sections 165 and 173), and provisions
related to protection of visibility (section 169A).
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\4\ As we explain in our response to comments, the UBR lacks
criteria that are sufficiently detailed or robust to ensure that
penalties are available at all appropriate times.
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2. R307-107-1 also applies to Federal technology-based standards
like the NSPS and NESHAPS that Utah has incorporated by reference to
receive delegation of Federal authority. To the extent any exemptions
from these technology-based standards are warranted for malfunctions,
the Federal standards contained in EPA's regulations already specify
the appropriate exemptions. No additional exemptions (or criteria for
deciding whether an applicable exemption applies) are warranted or
appropriate. Thus, the Utah SIP is substantially inadequate because
R307-107-1 improperly provides an exemption and criteria not contained
in and not sanctioned by the delegated Federal standards.
3. R307-107-2 requires the source to submit information regarding
an unavoidable breakdown to the executive secretary of Utah's Air
Quality Board (UAQB) and indicates that the information ``shall be used
by the executive secretary of the UAQB in determining whether a
violation has occurred and/or the need of further enforcement action.''
This provision appears to give the executive secretary exclusive
authority to determine whether excess emissions constitute a violation
and thus to preclude independent enforcement action by EPA and citizens
when the executive secretary makes a non-violation determination. This
is inconsistent with the enforcement structure under the CAA, which
provides enforcement authority not only to the States, but also to EPA
and citizens. Because a court could interpret section R307-107-2 as
undermining the ability of EPA and citizens to independently exercise
enforcement discretion granted by the CAA, it is substantially
inadequate to comply with CAA requirements related to enforcement.
Because it undermines the envisioned enforcement structure, it also
undermines the ability of the State to attain and maintain the NAAQS
and to comply with other CAA requirements related to PSD, visibility,
NSPS, and NESHAPS. Potential EPA and citizen enforcement provides an
important safeguard in the event a State cannot or does not enforce CAA
violations and also provides additional incentives for sources to
design, operate, and maintain their facilities so as to meet their
emission limits. Thus, R307-107-2 renders the SIP substantially
inadequate to attain or maintain the NAAQS or otherwise comply with the
CAA.
IV. Issues Raised by Commenters and EPA's Response
A. Request for Comment Period Extension/Procedural Issues
(a) Comment: Two comment letters requested an extension of the
comment period of up to 60 days. Other commenters did not specifically
request an extension, but stated that they believed the comment period
was too short. Some commenters complained that the proposal was issued
without stakeholder input.
Response: We considered the requests for an extension of the
comment period and extended the original 30-day public comment period
from December 20,
[[Page 21642]]
2010 to January 3, 2011 (see 75 FR 79327 (December 20, 2010)),
providing a total of 45 days to submit comments. The comment period was
sufficient to provide a reasonable opportunity to comment on our
proposed action given its scope. We note that section 307(h) of the CAA
specifies a 30-day period as a minimum comment period for rulemaking
actions under the CAA, except for certain specified provisions (all of
which waive notice-and-comment rulemaking requirements). We typically
provide a 30-day comment period for SIP-related actions. Neither the
CAA nor the Administrative Procedure Act requires a stakeholder process
before or during rulemaking to issue a SIP call.
(b) Comment: A commenter asserts that EPA's notice is defective
because it fails to provide interested parties with sufficient notice
of facts, policies and case law relevant to the proposed finding.
Interested parties cannot understand the bases for EPA's proposed rule
and thus cannot participate and comment in a meaningful way. EPA needs
to correct the deficiencies in the notice and re-propose.
Response: As described more fully elsewhere in our response to
comments, we explained the bases for our finding of substantial
inadequacy and SIP call in our proposed rulemaking action. See 75 FR
70891-70893.
(c) Comment: A commenter asserts that it cannot provide meaningful
comments and analysis of the proposed rule because EPA has not
responded to the commenter's appeal seeking documents under the Freedom
of Information Act (FOIA).
Response: We disagree that our actions under the FOIA are relevant
to the validity of our rulemaking action. In this case, we clearly
explained the bases for our proposed action, and made available in our
rulemaking docket all documents we considered in issuing the proposal.
The commenter had the same reasonable opportunity to comment on our
proposal as any other commenter and provided substantive comments.
We note that we responded to the commenter's FOIA request on June
7, 2010, providing three compact discs containing over 1,000 pages of
documents. We only withheld documents we determined were privileged
(and thus exempt from disclosure).
B. Authority and Basis for a SIP Call
(a) Comment: The proposal is inconsistent with section 110 of the
CAA. Commenters assert that EPA's authority to issue a SIP call under
CAA section 110(k)(5) is limited to if the Administrator finds the
applicable implementation plan for an area is substantially inadequate
to attain or maintain the relevant NAAQS or to otherwise comply with
any requirement of that chapter. Commenters assert that EPA has made no
showing or disclosure of relevant facts that the UBR is substantially
inadequate to protect the NAAQS with respect to CAA sections
110(a)(2)(H) and 110(k)(5). Commenters state that the finding of
substantial inadequacy must be clearly stated and that the
Administrative Record must present facts which support the SIP call.
Commenters state that EPA's docket did not identify any measured or
modeled impact on attainment or maintenance of a NAAQS due to excess
emissions resulting from an unavoidable breakdown. Further, EPA did not
provide any empirical information to support its reasoning as to why
the rule is not working.
Response: The SIP call is consistent with CAA sections 110(a)(2)(H)
and 110(k)(5). We proposed to find the UBR substantially inadequate in
our NPR and are finalizing that determination here. We explained the
bases for our proposed finding. See 75 FR 70891-70893. As we indicated
in our proposal, SIPs, including the Utah SIP, rely on adoption and
enforcement of emission limits to attain and maintain the NAAQS,
protect PSD increments, protect visibility in national parks and
wilderness areas, and meet other CAA requirements. See 75 FR 70891. The
integrity of the SIP is maintained and protection is ensured as long as
the limits are met. Consistent with this premise, the CAA and our
regulations require that SIP limits be enforceable. For example, as
noted in our proposal (see 75 FR 70892), CAA section 110(a)(2)(A)
requires each SIP to include enforceable emission limitations necessary
or appropriate to meet the CAA's applicable requirements. CAA section
110(a)(2)(C) requires that each SIP include a program to ``provide for
the enforcement of the measures'' described in section 110(a)(2)(A).
Section 302(k) defines emission limitation as a requirement established
by a State or EPA that ``limits the quantity, rate, or concentration of
emissions of air pollutants on a continuous basis.'' These requirements
are intended to ensure attainment and maintenance of the NAAQS,
protection of increments, and protection of visibility at all times,
not just occasionally or intermittently. The enforceability of the SIP
is fundamental to the SIP's adequacy under the CAA.
The UBR provides an exemption from emission limits in the Utah SIP
(and permits) for excess emissions caused by an unavoidable breakdown--
``emissions resulting from unavoidable breakdown will not be deemed a
violation of these regulations.'' See R307-107-1. Our longstanding view
is that all exceedances are violations and must be treated as such by
the SIP. See, e.g., our 1982, 1983, and 1999 Policies; 42 FR 58171
(November 8, 1977). This treatment is necessary because it encourages
sources to act responsibly in taking necessary measures to ensure
compliance with emissions limits, preserves the potential for
injunctive relief, preserves the potential for penalties, except in
limited circumstances, and is consistent with the notion that
protection of health under the CAA is not a sometime requirement. It is
also consistent with CAA 302(k)'s definition of emission limitation as
a requirement limiting emissions on a continuous basis. The UBR
precludes any enforcement when there is an unavoidable breakdown. It
thus renders emission limitations in the Utah SIP less than continuous
and, contrary to the requirements of sections 110(a)(2)(A) and (C),
undermines the ability to ensure compliance with emissions limitations
and the NAAQS and other relevant CAA requirements at all times.
Therefore, the UBR renders the Utah SIP substantially inadequate to
attain or maintain the NAAQS or to comply with other CAA requirements.
We also explained in our proposal that R307-107-2 appears to give
the executive secretary of the UAQB exclusive authority to determine
whether excess emissions have been caused by an unavoidable breakdown
and, thus, whether they constitute a violation. R307-107-2 provides
that information submitted by a source ``shall be used by the executive
secretary in determining whether a violation has occurred and/or the
need of further enforcement action.'' We explained that this provision
is inconsistent with the enforcement structure of the CAA, which
provides independent authority to EPA and citizens to enforce SIP and
other CAA emission limits. See 75 FR 70892. We concluded that, because
a court could interpret R307-107-2 as undermining the ability of EPA
and citizens to independently exercise enforcement discretion granted
by the CAA, it is inconsistent with CAA requirements related to
enforcement and, thus, renders the SIP substantially inadequate.
Preclusion of EPA and citizen enforcement could make it impossible to
penalize source noncompliance (where the State may have erroneously
concluded that
[[Page 21643]]
exceedances were caused by an unavoidable breakdown) or gain source
compliance through injunctive relief. Also, potential preclusion of EPA
and citizen enforcement reduces the incentive for sources to comply
because it reduces the likelihood of independent evaluation of
unavoidable breakdown claims by a court in an enforcement action
brought by EPA or citizens.
The thrust of several comments is that we have not presented facts
or empirical evidence that the UBR is not working or that shows any
measured or modeled impact on attainment or maintenance of a NAAQS due
to excess emissions resulting from an unavoidable breakdown. As we
indicated in our proposal (see 75 FR 70892), we need not show a direct
causal link between any specific unavoidable breakdown excess emissions
and violations of the NAAQS to conclude that the SIP is substantially
inadequate. It is our interpretation that the fundamental integrity of
the CAA's SIP process and structure is undermined if emission limits
relied on to meet CAA requirements can be exceeded without potential
recourse by any entity granted enforcement authority by the CAA. We are
not restricted to issuing SIP calls only after a violation of the NAAQS
has occurred or only where a specific violation can be linked to a
specific excess emissions event. It is sufficient that emissions limits
to which the unavoidable breakdown exemption applies have been, are
being, and will be relied on to attain and maintain the NAAQS and meet
other CAA requirements. Nor are we required to wait for a judge to rule
in a specific enforcement action that R307-107-2 has a preclusive
effect on EPA or citizen enforcement to determine that the provision is
inconsistent with the CAA and renders the SIP substantially
inadequate.\5\
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\5\ EPA has previously issued SIP calls to correct deficiencies
related to SIP enforceability. For example, EPA issued SIP calls in
the 1990s to require States to revise their SIPs to allow for use of
any credible evidence in enforcement actions with respect to SIP
emissions limits. See 62 FR 8314, 8327 (February 24, 1997).
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Nonetheless, we note the following:
1. Several counties along the Wasatch Front in Utah (which includes
the largest population centers in the State) are designated
nonattainment for PM10, PM2.5, and
SO2, and some have recorded violations of the 2008 0.075 ppm
ozone NAAQS as well. The Wasatch Front is subject to severe wintertime
inversions, and several commenters noted that Salt Lake County has at
times experienced some of the worst air quality in the country.
Exceedances of emission limitations due to unavoidable breakdowns
increase pollutant levels in the air in these nonattainment areas,
exacerbating pollution there.\6\
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\6\ In 2005, the State submitted a maintenance plan for
PM10 for Salt Lake County. The State's dispersion
modeling, which we proposed to disapprove because of flaws,
projected values very close to the 150 [mu]g/m\3\ 24-hour NAAQS at
the North Salt Lake monitor. If the State had used assumptions we
had proposed, the projected values would have been higher.
Malfunction emissions are of particular concern where modeling
predicts values just under the NAAQS.
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2. Our experience related to refineries, power plants, and other
sources indicates that potential emissions during malfunctions when
normal processes or pollution controls are bypassed can be very high,
far exceeding SIP limits. For example, data submitted by Holly Refining
(Holly) in Woods Cross, Utah, to the State of Utah indicate that Holly
flared nearly 11,000 pounds of SO2 in a 9-hour period during
a claimed breakdown event in June 2006 and thousands of pounds during
other claimed breakdown events of varying duration (some on the order
of one hour) between 2006 and 2010. By way of comparison, the January
12, 2010 permit limit for Holly's SRU tail gas incinerator is 1.6 tons
(3,200 pounds) of SO2 per day.\7\ During malfunctions,
refineries in the Billings, Montana, area sometimes flared thousands of
pounds of SO2 over a two- or three-hour period, whereas the
State had modeled attainment of the 3-hour SO2 NAAQS based
on a routine flare emissions limit of 150 pounds per three hours. If
Montana had modeled the higher emissions, other emission limits would
have had to have been greatly curtailed for the area to demonstrate
attainment of the NAAQS. Our experience indicates that the flare
emissions at Holly and in Montana are not unique. See, e.g., EPA
Enforcement Alert, Volume 3, Number 9, October 2000, ``Frequent,
Routine Flaring May Cause Excessive, Uncontrolled Sulfur Dioxide
Releases,'' which we have included in the docket for this action.
Similarly, our experience indicates that power plant emissions during
malfunctions can greatly exceed emissions during routine operations.
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\7\ In its 2005 SIP submittal for PM10, the State
proposed a combined SO2 emission limit for Holly, which
included all external combustion process equipment and all gas-fired
compressor drivers, of 4.7 tons per day.
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3. A report by the Environmental Integrity Project, which we
included in the record for our notice of proposed rulemaking, also
indicates that malfunction emissions can dwarf SIP and permit emissions
limits. See ``Gaming the System,'' August 2004, docket no. EPA-R08-OAR-
2010-0909-0042, pages 2, 5-9. See also, EPA Enforcement Alert cited
above, p. 2.
We also proposed other bases for our finding of substantial
inadequacy. As we indicated in our notice of proposed rulemaking, the
UBR not only applies to SIP limits, but also to permit limits and
national technology-based standards like the NSPS and NESHAPS. See 75
FR 70892.
This means a source could use the provisions of R307-107 to claim
an exemption from best available control technology (BACT) or lowest
achievable emission rate (LAER) limits in a major source permit. We
have consistently interpreted the Act to not allow for outright
exemptions from BACT limits, and the same logic applies to LAER limits.
See, e.g., 1977 memorandum entitled ``Contingency Plan for FGD Systems
During Downtime as a Function of PSD,'' from Edward E. Reich to G.T.
Helms and January 28, 1993 memorandum entitled ``Automatic or Blanket
Exemptions for Excess Emissions During Startup and Shutdowns under
PSD,'' from John B. Rasnic to Linda M. Murphy. As noted, in order to
ensure non-degradation of air quality at all times under the PSD
program and protection of the NAAQS at all times, it is necessary for a
source to comply with its permit limits at all times.
To the extent any exemptions from the NSPS or NESHAPS are
warranted, the Federal standards contained in EPA's regulations already
specify the appropriate exemptions. See, e.g., 40 CFR 60.48Da(c).\8\ No
additional exemptions or criteria are warranted or appropriate. See,
e.g., 40 CFR 60.10(a); 40 CFR 63.12(a)(1); and the 1999 Policy,
Attachment, at 3.\9\ Furthermore, in Sierra Club v. EPA, 551 F.3d 1019
(DC Cir. 2008), the DC Circuit determined that exemptions from
compliance with CAA section 112 Maximum Achievable Control Technology
(MACT) standards during periods of SSM were inconsistent with CAA
section 302(k), which requires continuous compliance with emission
limits. Thus, R307-107-1 is substantially inadequate because it
improperly provides an exemption and grants discretion to the Utah
executive secretary not contained in and not sanctioned by the
delegated Federal standards.
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\8\ Some NSPS do not provide any relief during SSM. For example,
the SO2 and NOX limits under part 60, subpart
Db, apply at all times. See 40 CFR 60.45b(a) and 60.46b(a).
\9\ As EPA noted in the 1999 Policy, ``to the extent a state
includes NSPS or NESHAPS in its SIP, the standards should not
deviate from those that were federally promulgated. Because EPA set
these standards taking into account technological limitations,
additional exemptions would be inappropriate.''
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[[Page 21644]]
(b) Comment: Commenters state that EPA is incorrect in its
interpretation and reliance on a number of court decisions used in part
to justify the SIP Call. Commenters indicate that Michigan DEQ v.
Browner and Arizona Public Service Co. v. EPA are not relevant.
Commenters state that EPA fails to mention other cases, such as Sierra
Club v. Georgia Power, which commenters allege are more on point and do
not support EPA's proposed SIP call. Commenters also criticize EPA's
citation of Sierra Club v. EPA, and claim that EPA's ``broad
interpretation'' is at odds with a July 2009 letter from Adam Kushner
to industry.
Response: Our action is based on our longstanding interpretation of
the CAA, which is reflected in our 1999 and earlier policy statements,
among other locations. As we noted in our proposal (see 75 FR 70890),
Arizona Public Service Co. v. EPA, 562 F.3d 1116, 1129 (10th Cir. 2009)
held that our 1999 Policy was a ``reasonable interpretation of the
Clean Air Act.'' The court in Michigan DEQ v. Browner, 230 F.3d 181,
186 (6th Cir. 2000) similarly found that EPA's interpretation of
section 110, as explained in the 1982 and 1983 Policies, was reasonable
and held that ``EPA reasonably concluded that Michigan's proposed SIP
revision did not meet the requirements of the CAA.''
Contrary to commenters' arguments, these cases are relevant to our
action. The courts agreed with EPA that it is not appropriate under CAA
section 110 to provide or approve an outright exemption from SIP
emission limitations, and the Michigan DEQ court upheld EPA's
determination that Michigan's defective SSM revisions did not meet the
requirements of the CAA.
Commenters suggest that these cases are irrelevant because they
didn't involve a SIP call. However, if, as these courts held, EPA's
interpretation is reasonable--that a malfunction provision that
provides an exemption from an emission limit does not meet the minimum
requirements of CAA section 110--then logic leads to the conclusion
that the provision is substantially inadequate to meet section 110's
requirements with respect to SIP compliance and enforceability.
EPA's past approval of a provision that fails to meet the minimum
requirements of the Act does not render the provision compliant,
something EPA plainly acknowledged in its various policy statements
over the years. The SIP call provisions of the Act provide EPA with one
of the only means to revisit SIP decisions that may have been wrong or
ill-considered, or that have been brought into greater focus with the
passage of time and development of relevant knowledge and case law.
Contrary to commenters' assertion, we did refer to Sierra Club v.
Georgia Power Co. in our proposal at 75 FR 70892, n. 7, but
inadvertently omitted the case name. We disagree that the case ``is
more analogous'' or ``contradicts EPA's current interpretation.'' The
case merely held that EPA's 1999 policy did not change the existing
Georgia SIP, a proposition we agree with and have acted in accordance
with here. See EPA's December 5, 2001 clarification of the 1999 Policy,
which is in the docket. If we thought the policy trumped the approved
SIP, there would be no need to issue a SIP call now. As Sierra Club v.
Georgia Power Co. suggested, we are issuing a SIP call to ensure that
the Utah SIP meets the minimum requirements of the CAA. See 443 F.3d
1346, 1355 (11th Cir. 2006).
Regarding Sierra Club v. EPA, 551 F.3d 1019 (DC Cir. 2008), while
we did not cite the case as the main basis for our SIP call, we remain
convinced it is relevant even though it addressed the hazardous air
pollutant (HAP) regulations. In particular, the court significantly
relied on section 302(k)'s definition of emission standard (as a
requirement that limits the quantity, rate, or concentration of
emissions of air pollutants on a continuous basis) to reach its
ultimate holding disallowing EPA's exceptions from the MACT standards
and attempted reliance on the general duty to minimize emissions. As
with MACT standards, there is no indication that Congress intended
compliance with NAAQS, or compliance with emission limits relied on to
attain and maintain the NAAQS, be anything less than continuous. Also,
we disagree with the comment that the UBR does not provide an express
exemption from SIP and other emission limits. The UBR states that
``emissions resulting from an unavoidable breakdown will not be deemed
a violation of these regulations.'' This is an exemption. The
provisions in the UBR requiring that an owner/operator take
``reasonable'' measures to reduce emissions resulting from an
unavoidable breakdown are analogous to the general duty provisions in
EPA's MACT provisions. The Sierra Club court found these general duty
requirements were not a substitute for a 112 emission standard. Here,
we find the emissions minimization requirements in the UBR are not a
substitute for continuously applicable emission limitations that
support attainment and maintenance of the NAAQS, and protection of PSD
increments and visibility.
We also disagree that our views contradict the views Adam Kushner
(EPA's Director of the Office of Civil Enforcement) expressed in his
July 2009 letter to industry representatives. Mr. Kushner was
delineating which MACT standards were directly affected by the court's
ruling and how they would be affected. Mr. Kushner was not expressing
an opinion about the import of the Court's decision for other types of
emission standards and limitations. We also find noteworthy the
following language from Mr. Kushner's letter: ``Although these
provisions [source-category specific SSM provisions] will remain in
effect following the issuance of the mandate in Sierra Club, EPA
recognizes that the legality of such source category-specific SSM
provisions may now be called into question, and EPA intends to evaluate
them in light of the court's decision.'' EPA has since revised or
proposed to revise several MACT standards with source-specific
malfunction provisions to eliminate the exemptions from compliance
during periods of malfunction. See, e.g., 76 FR 15608 (March 21, 2011);
75 FR 54970 (September 9, 2010); 75 FR 65068 (October 21, 2010).
(c) Comment: EPA lacks the regulatory authority to make a SIP call
based on policy or guidance that has not become applicable law. The
1999 Policy EPA cites as justification for the SIP Call has never been
subjected to the legal requirements of notice and public rulemaking
under the Administrative Procedures Act. In addition, commenters assert
that if EPA were authorized to regulate through policy, it would be
inappropriate in this case because the 2001 Policy \10\ clarifies that
the 1999 Policy was not intended to alter the status of any existing
malfunction, startup, or shutdown provisions in a SIP that had been
approved by EPA.
Response: The 1999 Policy reflects our interpretation of the CAA.
We have not treated it as binding on the States or asserted that it
changed existing SIP provisions. Instead, we have done what commenters
argue is necessary--we have engaged in notice and comment rulemaking to
determine whether a SIP call is appropriate in this case. Through this
rulemaking action, we have evaluated provisions of the Utah SIP to
determine whether they are consistent with our interpretation of the
CAA as reflected in our policies. We provided commenters with the
opportunity to
[[Page 21645]]
comment on the proposed SIP call and our basis for it, and are only
finalizing the SIP call after carefully considering commenters'
comments.\11\ To the extent some commenters may be arguing that we must
conduct national rulemaking on our policy before we can conduct SIP
call rulemaking with respect to a specific State malfunction provision,
we find no basis for this assertion in the CAA. We have evaluated the
UBR, found it substantially inadequate as specified in the CAA, and
issued a SIP call as required. The process we have followed and the
substance of our action are reasonable.
---------------------------------------------------------------------------
\10\ ``Re-Issuance of Clarification--State Implementation Plans
(SIPs): Policy Regarding Excess Emissions During Malfunction,
Startup, and Shutdown,'' Eric Schaefer and John Seitz, December 5,
2001.
\11\ We have applied the interpretation reflected in our
policies in a number of other rulemaking actions. See, e.g., the
Billings/Laurel Federal Implementation Plan, 73 FR 21418 (April 21,
2008); approvals of Colorado SSM rules, 71 FR 8958 (February 22,
2006) and 73 FR 45879 (August 7, 2008); partial approval and partial
disapproval of Texas SSM rules, 75 FR 26892 (May 13, 2010) and 75 FR
68989 (November 10, 2010); disapproval of Michigan SSM rules, 63 FR
8573 (February 20, 1998); approval of Maricopa County, Arizona SSM
rules, 67 FR 54957 (August 27, 2002).
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Commenters emphasize our failure to specifically cite our December
5, 2001 clarification to the 1999 Policy, in which we indicated that
the 1999 Policy was not intended to ``alter the status of any existing
malfunction, startup or shutdown provision in a SIP that has been
approved by EPA.'' \12\ The 2001 clarification merely states the
obvious well-understood principle--that an approved SIP remains the
approved SIP unless or until EPA undertakes rulemaking action to revise
the SIP. See General Motors v. United States, 496 U.S. 530, 540-541
(1990). In other words, the 1999 Policy did not modify existing SIP
provisions. Here, ``in the context of future rulemaking'' as
contemplated by the 2001 clarification, we have considered ``the
Guidance and the statutory principles on which the Guidance is based.''
See December 5, 2001 clarification.
---------------------------------------------------------------------------
\12\ We included the 2001 clarification in the docket for our
proposal but did not cite it specifically.
---------------------------------------------------------------------------
One commenter argues that the 2001 clarification ``clarifies the
1999 Policy does not apply to'' the UBR. On the contrary, because the
UBR addresses the treatment of excess emissions resulting from an
unavoidable breakdown, EPA's interpretations reflected in the 1999
Policy are clearly relevant. Also, nothing in the 2001 clarification
rejected EPA's statement in the 1999 Policy that all EPA Regions
``should review the SIPs for their states in light of this
clarification and take steps to insure that excess emissions provisions
in these SIPs are consistent with the attached guidance.'' As provided
above, the sole purpose of the 2001 clarification was to expressly
state that the policy--standing alone--did not serve to change the
terms of an approved SIP.
(d) Comment: EPA's proposed SIP call is justified regardless of its
reliance on guidance. Commenter explains that Utah's SIP cannot
possibly assure the NAAQS and other CAA requirements will be met if the
SIP allows a blanket exemption from emission limits, particularly
because the effectiveness of Utah's SIP is premised upon compliance
with emission limits.
Response: Our SIP call relies on our interpretations of the CAA as
reflected in numerous policy statements and actions over the years.
Otherwise, we agree with the commenter.
(e) Comment: Commenters assert that EPA's SIP call is inconsistent
when compared with other EPA SSM polices such as those for NSPS in 40
CFR 60.8(c).
Response: Emission limitations in SIPs must ensure ambient levels
of criteria pollutants that attain and maintain the NAAQS. For purposes
of demonstrating attainment and maintenance, States assume source
compliance with emission limitations at all times. Thus, provisions
that exempt compliance during SSM undermine the integrity of the SIP.
This principle underlies EPA's interpretations regarding SIP SSM
provisions as reflected in our various policy statements over the
years. For example, in our 1999 Policy we stated the following:
``EPA has a fundamental responsibility under the Clean Air Act
to ensure that SIPs provide for attainment and maintenance of the
national ambient air quality standards (``NAAQS'') and protection of
PSD increments. Thus, EPA cannot approve an affirmative defense
provision that would undermine the fundamental requirement of
attainment and maintenance of the NAAQS, or any other requirement of
the Clean Air Act. See sections 110(a) and (l) of the Clean Air Act
* * * Accordingly, an acceptable affirmative defense provision may
only apply to actions for penalties, but not to actions for
injunctive relief.
* * * * *
Generally, since SIPs must provide for attainment and
maintenance of the national ambient air quality standards and the
achievement of PSD increments, all periods of excess emissions must
be considered violations. Accordingly, any provision that allows for
an automatic exemption for excess emissions is prohibited.
* * * * *
Automatic exemptions might aggravate ambient air quality by
excusing excess emissions that cause or contribute to a violation of
an ambient air quality standard.''
Similarly, in our 1982 Policy, we stated the following:
``The rationale for establishing these emissions as violations,
as opposed to granting automatic exemptions, is that SIPs are
ambient-based standards and any emissions above the allowable may
cause or contribute to violations of the national ambient air
quality standards.''
Thus, EPA has long said that automatic exemptions from SIP emission
limits are not appropriate because the SIPs are for the purpose of
ensuring health-based standards are met and maintained.\13\
---------------------------------------------------------------------------
\13\ The 1999 Policy defines ``automatic exemption'' as ``a
generally applicable provision in a SIP that would provide that if
certain conditions existed during a period of excess emissions, then
those exceedances would not be considered violations.'' The UBR
provides such an automatic exemption: ``Except as otherwise provided
in R307-107, emissions resulting from an unavoidable breakdown will
not be deemed a violation of these regulations.'' In this notice, we
also refer to this as an outright exemption or an exemption.
NSPS and other technology-based standards, on the other hand, do
not have to ensure attainment of the NAAQS. Instead, CAA section
111(a)(1) provides that a new source ``standard of performance'' must
reflect ``the degree of emission limitation achievable through the
application of the best system of emission reduction which (taking into
account the cost of achieving such reduction and any nonair quality
health and environmental impact and energy requirements)'' EPA
determines has been ``adequately demonstrated.'' Thus, historically,
EPA has held different interpretations regarding the proper treatment
of excess emissions during SSM under health-based standards addressed
in SIPs and the NSPS technology-based standards.\14\ In the SIP
context, and in the context of SIP-based permits, EPA's interpretation
of the CAA is reasonable, and it is reasonable for EPA to require that
Utah revise the UBR or remove it from the SIP.
---------------------------------------------------------------------------
\14\ As we noted in our proposal and elsewhere in this action,
however, the 2008 Sierra Club case held that EPA rules exempting
major sources from technology-based NESHAP standards during SSM
periods violated the CAA's requirement in section 112 that some
standard meeting that provision's substantive requirements apply
continuously. Sierra Club v. EPA, 551 F.3D 1019, 1028 (DC Cir.
2008).
---------------------------------------------------------------------------
(f) Comment: The Utah UBR has been federally-approved in the SIP
for over 30 years. Based on empirical UDAQ monitoring since that
approval, the Utah UBR has not contributed to a NAAQS exceedance.
Response: As indicated above, we disagree that the commenters'
suggested test--whether there is demonstrated proof that a specific
excess emission event allowed under the UBR has contributed to a
specific monitored
[[Page 21646]]
NAAQS exceedance--is the test we must use. As stated above, for
purposes of demonstrating attainment and maintenance of the NAAQS (and
for protecting PSD increments and visibility), States assume source
compliance with SIP emission limitations at all times.\15\ Thus, it is
reasonable to insist that the SIP not interfere with or undermine the
ability to enforce compliance with SIP limitations at all times. The
UBR fails this test for the reasons already stated.
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\15\ We note that dispersion modeling, based on SIP emission
limitations, is often required to demonstrate attainment and
maintenance of the NAAQS because modeling can predict pollutant
levels at receptor locations throughout an area, whereas monitors
are limited in number and location. See, e.g., 40 CFR 51.112; 40 CFR
part 51, appendix W.
---------------------------------------------------------------------------
In addition, even if the commenters were correct that the sole
reasonable test is whether the UBR has contributed to a monitored
exceedance of the NAAQS, we cannot discern whether commenters are
saying there has never been a breakdown event on a day when a monitor
has exceeded a NAAQS. (The commenters submitted no data regarding
claims under the UBR.) However, based on monitored violations of the
NAAQS, Utah has had areas designated nonattainment for various
pollutants over the course of many years and continues to have
nonattainment areas for PM2.5, PM10, and
SO2. Areas in Utah will likely be designated nonattainment
for ozone again in the future. As noted in a prior response,
malfunction-based emissions at stationary sources can lead to large
emissions in a short period of time, and it is reasonable to conclude
that excess emissions during malfunctions have contributed and/or have
the potential to contribute to NAAQS exceedances and violations in the
urbanized areas of Utah.\16\ If EPA promulgates new, more stringent
NAAQS, the potential for NAAQS exceedances and violations only
increases.
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\16\ Based on data in EPA's Air Quality System database for the
years 2005 through 2010, there were 171 days during which the
PM2.5 NAAQS was exceeded at a monitor in Utah and 154
days during which the 2006 ozone NAAQS was exceeded at a monitor in
Utah.
---------------------------------------------------------------------------
Several commenters emphasize that the UBR has been in the SIP for
more than 30 years and that EPA has approved it more than once. We
first approved the UBR in 1980 only after stating in our 1979 proposed
rulemaking action that we could not fully approve the UBR ``because it
exempts certain excess emissions from being violations of the Air
Conservation Regulations'' and only after opining that exemptions
granted under the UBR would not apply as a matter of Federal law. See
44 FR 28688, 28691 (May 16, 1979).
Second, our approval of the UBR preceded the 1982 and 1983
Policies. These memoranda to EPA's Regional Administrators were issued
in response to requests for clarification of EPA's policy regarding
excess emissions during SSM. Presumably, these memoranda were issued
because previously there had been some confusion about EPA's
interpretation of the CAA on this issue. A comparison of the UBR to
these policies reveals that the UBR did not and does not comport with
the interpretation reflected in the policies. For example, the 1982
Policy states that EPA can approve SIP revisions that incorporate an
``enforcement discretion approach'' that requires the State agency to
treat all excess emissions due to malfunctions as violations and
commence a proceeding to notify the source of its violation. Then the
State agency would determine whether to initiate an enforcement action
based on specific, detailed criteria contained in the 1982 Policy. The
UBR does not treat all excess emissions as violations, does not require
the State to initiate a proceeding to notify the source of its
violation, and does not contain the criteria consistent with those
contained in the 1982 Policy. The 1982 Policy stated, ``Where the SIP
is deficient, the SIP should be made to conform to the present
policy.'' Contrary to the 1982 Policy's directive, the SIP was not made
to conform to the 1982 Policy.
We approved a revised version of the UBR in 1994 with no preamble
discussion except to note that the Utah air rules had been renumbered
and new requirements had been added to the SIP. See 57 FR 60149
(December 18, 1992) and 59 FR 35036 (July 8, 1994). There is no
indication that EPA evaluated the substance of the UBR or any of the
other re-numbered provisions that were already included as part of the
approved SIP. Id. We also note that the 1994 approval preceded our 1999
Policy, which re-alerted EPA regional offices to the issues regarding
SIP SSM rules, acknowledged that some existing SIPs included deficient
SSM provisions, and directed the Regions to review the SIPs and seek to
correct such provisions.
Subsequent to EPA's issuance of the 1999 Policy, we approved
another renumbering of the Utah SIP, including a renumbering of the
UBR. Again, EPA did not consider the substance of the UBR, but did
expressly reference EPA's ongoing concerns with SIP rules and
specifically noted that Utah had committed to address those concerns,
which included concerns with the UBR. We indicated that we would
``continue to require the State to correct any rule deficiencies
despite EPA's approval'' of the recodification. See 70 FR 59681, 59683
(October 13, 2005).
In other words, we indicated in the 1979 proposal that preceded our
1980 approval that we could not fully approve the UBR because it
provided exemptions from violations, and in our subsequent actions, we
did not reanalyze the adequacy of the rule. However, we did indicate in
our most recent re-numbering approval our intent to require the State
to correct the deficiencies in the UBR.
Furthermore, since EPA issued the 1999 Policy, we have been working
with Utah in an attempt to change the UBR on a cooperative basis. As
noted in our proposal, Utah acknowledged that the provision could
benefit from clarification and initiated rulemaking toward that end. In
an April 18, 2002 letter, Utah also specifically committed to address
our concerns with the rule. See 75 FR 70891. However, Utah never
completed a change to the UBR despite our substantial efforts to help
Utah develop a revised rule that would meet CAA requirements. Id. The
delay that has resulted from our attempt to reach a consensus-based
solution does not diminish our authority to issue a SIP call.
(g) Comment: Commenter asserts that ``there must be evidence of new
information that would explain how Utah's SIP has somehow been
transformed from adequate to substantially inadequate.'' Commenter
cites Clean Air Implementation Project v. EPA, 150 F.3d 1200, 1207 (DC
Cir. 1998) for this proposition. Commenter asserts that no such
information has been provided.
Response: Commenter's interpretation would preclude EPA from
changing its interpretations and conclusions over time or from
determining that prior approvals were a mistake, and issuing a SIP call
on such bases. CAA sections 110(a)(2)(H) and 110(k)(5) do not constrain
us in that way, and Clean Air Implementation Project v. EPA did not
hold that a SIP previously found by EPA to be adequate could not be
subsequently found to be inadequate absent evidence of new information.
On the contrary, the case did not involve a challenge to a SIP call at
all, and the statements the commenter refers to were dicta involving a
completely different set of facts.\17\
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\17\ Clean Air Implementation Project v. EPA addressed a
challenge to EPA's credible evidence rule and held that the
challenge was not ripe for decision.
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[[Page 21647]]
As a practical matter, our past decisions are not infallible. They
reflect a decision made at a particular point in time by a particular
set of individuals based on a particular understanding (or
misunderstanding) of facts, policy, and law. Our 1999 Policy expressly
recognizes this: ``A recent review of SIPs suggests that several
contain provisions that appear to be inconsistent with this policy,
either because they were inadvertently approved after EPA issued the
1982-1983 guidance or because they were part of the SIP at that time,
and have never been removed.'' 1999 Policy at 1. Further, the 1999
Policy advised all Regions to review the SIPs for their States in light
of the clarification and take steps to insure that excess emissions
provisions in these SIPs are consistent with the policy. Id. at 4.
Similarly, EPA's 1982 Policy explained that the Agency, because it had
been inundated with proposed SIPs in the early 1970's and had limited
experience processing them, had not given sufficient attention to the
``adequacy, enforceability, and consistency'' of SSM provisions. Thus,
``many SIPs were approved with broad and loosely-defined provisions to
control excess emissions.'' 1982 Policy at 1.
The 1999 Policy can be viewed as refreshing EPA's institutional
memory. It reiterated and clarified EPA's longstanding interpretation
and provided direction to EPA's regional offices to review SIPs from
their respective States. This caused EPA Region 8 to review SIPs for
Utah and the other States within the region. As noted in our proposal,
several Region 8 States have submitted revisions to their SSM rules in
response to our review, and EPA has approved revised rules for Colorado
and Wyoming. See 75 FR 70890. Our review of the Utah rule revealed that
it was inconsistent with CAA requirements, and we initiated sustained
efforts to get the State to revise the rule. The State did not revise
the rule. See 75 FR 70890-70891.
A review of facts here indicates that EPA's 1980 approval of the
UBR was ill-considered because even then our basic interpretation that
all excess emissions must be treated as violations applied. As
discussed in our proposal for this action, EPA said in its 1979
proposal on the UBR that EPA ``may not fully approve Regulation 4.7
because it exempts certain excess emissions from being violations of
the Air Conservation Regulations'' but then proposed to approve the UBR
anyway. Clearly, the regulation did not comport with EPA's
interpretations regarding SSM provisions in SIPs. However, with almost
no explanation, EPA justified its approval based on a conclusion that
any exemptions granted by Utah ``are not applicable as a matter of
federal law.'' See 44 FR 28691. This did not obviate the deficiency in
the UBR. Also, EPA's interpretation of that time--that exemptions
granted by Utah would not affect Federal enforcement--could be
questioned and rejected in court. While some commenters state that
EPA's enforcement discretion would not be affected by the Utah
executive secretary's decision, others offer no such concession. See,
e.g., Utah Manufacturers Association, et al., comment letter at 5
versus Utah Industry Environmental Coalition, et al., comment letter at
14, which are in the docket for this action. Furthermore, Phillips
Petroleum asserted in a 1997 EPA enforcement action that Utah's non-
violation determinations under the UBR were binding on EPA.\18\
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\18\ In 1997, EPA initiated an enforcement action against the
Phillips Petroleum refinery in Davis County, Utah when the State
declined to pursue enforcement. Among other things, EPA alleged that
Phillips had violated its one-hour emission limit contained in the
Utah SIP for the Salt Lake County PM10 nonattainment
area. The State, with little or no apparent analysis, decided that
all or nearly all of the more than 1,000 exceedances EPA cited in
its complaint against Phillips were caused by unavoidable breakdowns
and were not violations under the UBR. Phillips alleged in pleadings
that the State's decision precluded EPA enforcement as a matter of
law. We disagreed with the State's decision and with Phillips'
arguments, but the court never decided the issue because a
settlement was reached. We have included in the docket for this
action various pleadings and documents from the Phillips enforcement
case that reflect the facts cited herein.
---------------------------------------------------------------------------
While we disagree with the commenter that a SIP call is only
allowed where there is new external information that the SIP is
invalid,\19\ facts since our 1980 approval, such as arguments made in
enforcement cases contrary to EPA's interpretation, would certainly
qualify as new information justifying a SIP call. Among other things,
the UBR is substantially inadequate because it is burdened by the
uncertainty of whether EPA or citizens may pursue independent
enforcement where the Utah executive secretary decides an excess
emission is not a violation.
---------------------------------------------------------------------------
\19\ We also may have been justified using our authority under
110(k)(6) to revise the rule, but have decided the better course
here is to provide the State the opportunity to revise the SIP
through the SIP call process.
---------------------------------------------------------------------------
(h) Comment: Commenters state that EPA mischaracterizes the Utah
UBR in that Utah's rule does not allow for outright exemptions from
BACT or LAER limits, and does not undermine protection of the NAAQS,
PSD increments, or visibility.
Response: We do not agree. Under the UBR, excess emissions
resulting from unavoidable breakdowns are not violations. We consider
that an outright exemption, which prevents enforcement action where,
for example, it may be needed to protect the NAAQS. The commenter's
premise--that unavoidable breakdowns will occur regardless of the
rule--assumes a continued right to pollute regardless of whether such
emissions might undermine the very purpose of the SIP--attainment and
maintenance of the NAAQS. It also assumes that the UBR provides
adequate incentives to avoid malfunctions and protect the NAAQS. We do
not agree. See our other responses.
(i) Comment: A commenter argues that the UBR does not preclude
injunctive relief. The commenter cites UDAQ's ability to pursue
injunctive relief if it decides the excess emissions were not caused by
an unavoidable breakdown.
Response: The commenter says nothing about EPA or citizen authority
where UDAQ decides, erroneously or not, that the excess emissions were
caused by an unavoidable breakdown, or where the excess emissions were
in fact caused by an unavoidable breakdown as defined in the UBR. It is
our interpretation that injunctive relief must be preserved regardless
of the State determination and regardless of the cause of the
exceedance. Protection of the NAAQS should not be subservient to a
source's desire to continue operating as it has, or its ``need'' to
continue polluting. As we have explained in our various policy
statements over the years, all exceedances must be treated as
violations to allow protection of the NAAQS, and no defense to
injunctive relief is appropriate. See the 1982, 1983, and 1999
Policies.
Also, as to UDAQ's enforcement discretion, we find it likely that
the UBR would prevent the State from obtaining injunctive relief where
the breakdown meets the criteria in the UBR to be classified as
unavoidable.
(j) Comment: Commenters state that contrary to EPA's assertion, the
discretion afforded the UDAQ executive secretary under the unavoidable
breakdown rule does not limit EPA's ability to overfile or a third
party's ability to file a citizen's suit. Another commenter states that
EPA lacks a reasonable basis to presume ``uncertainty'' about reserved
enforcement authority.
Response: The UBR language in question reads: ``The submittal of
such information shall be used by the executive secretary in
determining whether a violation has occurred and/or the need of further
enforcement action.''
[[Page 21648]]
The plain language appears to grant the executive secretary the
authority to determine whether excess emissions constitute a violation
or not. Our approval of that language could be construed by a court as
ceding that authority to the State. A court could conclude that it
should not resort to the interpretation we offered with our 1980
approval--that an exemption granted by the Utah executive secretary
would not apply as a matter of Federal law--because the language of the
regulation is clear on its face.\20\ Also, we did not repeat our 1980
interpretation in subsequent approvals. In addition, representations
made by the commenters here would not bind them or other entities in
subsequent enforcement actions.
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\20\ See, e.g., U.S. v. Ford Motor Co., 736 F.Supp. 1539 (W.D.
Mo. 1990) and U.S. v General Motors Corp., 702 F.Supp. 133 (N.D.
Texas 1988) (EPA could not pursue enforcement of SIP emission limits
where States had approved alternative limits under procedures EPA
had approved into the SIP); Florida Power & Light Co. v. Costle, 650
F.2d 579, 588 (5th Cir. 1981) (EPA to be accorded no discretion in
interpreting State law). While we do not agree with the holdings of
these cases, we think the reasonable course is to eliminate any
uncertainty about reserved enforcement authority by requiring the
State to revise or remove the unavoidable breakdown rule from the
SIP.
---------------------------------------------------------------------------
The State suggests that it would not ``forget EPA's interpretation
of the law.'' But, in its comments, the State does not say it agrees
with EPA's interpretation or that it or another entity would not argue
against EPA's interpretation in an enforcement action. As noted, at
least one defendant--Phillips Petroleum--has already argued against our
1980 interpretation. To our knowledge, the State has never provided an
interpretation that the UBR was not intended to and does not have a
preclusive effect on EPA or citizen enforcement.
At best, the UBR language is ambiguous, and in the face of this
ambiguity, a court could defer to the State's interpretation, whose
interpretation of the rule is currently unknown. Ambiguous language can
undermine the purpose of the SIP and compliance with CAA
requirements.\21\
---------------------------------------------------------------------------
\21\ In approving Colorado's affirmative defense rule for
startup and shutdown, we specifically disapproved one section of the
rule that we felt could have been construed to cede authority to
Colorado to determine whether a source had established the elements
of the affirmative defense. 71 FR at 8959 (February 22, 2006).
---------------------------------------------------------------------------
The commenters would have us remain silent in face of the
uncertainty caused by the UBR language. The reasonable course is to
require the State through our SIP call authority to change the UBR to
remove its potential impediment to our and citizens' exercise of our
independent enforcement authority under CAA sections 113 and 304.\22\
The UBR's threat to our and citizens' independent enforcement authority
under the CAA renders the SIP substantially inadequate.
---------------------------------------------------------------------------
\22\ The UBR could be easily revised to address the problem. The
sentence in question could be changed to read, ``The submittal of
such information shall be used by the executive secretary in
determining whether to pursue enforcement action.''
---------------------------------------------------------------------------
The State suggests that our action is unreasonable because it has
taken us so long to recognize and address the problem. As we noted
above, issuance of the 1999 Policy spurred our re-examination of the
Utah SIP. In particular, the 1999 Policy clarified that SIPs should not
include provisions whereby a State's enforcement decision would ``bar
EPA's or citizens' ability to enforce applicable requirements.'' 1999
Policy at 3. The Phillips Petroleum case also influenced us. The State
does not mention that we attempted to address our concerns
cooperatively with the State since shortly after the 1999 Policy was
issued, and for many years thereafter.
(k) Comment: One commenter suggests that the potential preclusive
effect of the executive secretary's violation/non-violation
determinations under the UBR may be ``in keeping with the role given to
states in SIP matters.''
Response: We disagree. Sections 113 and 304 of the Act clearly
provide independent enforcement authority to EPA and citizens. While
section 304 limits citizens' authority where a State or EPA ``has
commenced and is diligently prosecuting a civil action,'' nothing in
the CAA suggests that Congress intended or required States to have
exclusive authority to determine whether an exceedance constitutes a
violation. Nor is there any rational reason EPA should be relegated, as
the commenter suggests, to an action under section 113(a)(2) of the
Act--to essentially wait for ``widespread'' dereliction of duty on
Utah's part--to correct this problem in the UBR. Our use of SIP call
authority to correct the problem is reasonable. We have responsibility
to implement and interpret the CAA, and we reject the commenter's
interpretation that the ``balance of authority in Utah's SIP and the
UBR is in keeping with the role given to states in SIP matters.''
Contrary to the commenter's suggestion, we are not required to wait for
a court to determine in the context of an enforcement action whether
the potential preclusive effect of the UBR language is consistent with
the CAA. Congress did not hamstring us in that way; instead it provided
us with authority to issue a SIP call to address substantial
inadequacies in the SIP.
(l) Comment: Commenters argue that EPA's preferred approach would
have no impact on emissions because unavoidable breakdowns are by their
nature unavoidable regardless of the rule governing such events.
Response: First, as we explain above, the UBR precludes injunctive
relief when the excess emissions fall within the UBR's coverage. As we
have explained, this is inconsistent with the CAA. Commenters do not
address this, but instead appear to assume the need to pollute trumps
protection of the NAAQS.
Second, how ``unavoidable'' is defined makes a difference.
Depending on the definition, different incentives with respect to
design, operation, and maintenance are created. We find that the
criteria contained in the UBR are not as extensive or rigorous as the
criteria in the 1999 Policy for asserting an affirmative defense to
penalty actions. For example, the UBR indicates that breakdowns caused
by ``poor maintenance'' or ``careless operation'' or ``any other
preventable upset condition or preventable equipment breakdown'' shall
not be considered unavoidable breakdowns. Unlike the UBR, the 1999
Policy specifically addresses potential design flaws in addition to
issues with maintenance and operation: ``The excess emissions were not
part of a recurring pattern indicative of inadequate design, operation,
or maintenance.'' The lack of specificity in the UBR could lead a court
to conclude that the rule was not intended to reach back to the design
of the facility or its control equipment. In addition, the UBR does not
indicate who has the burden of proof regarding claims of unavoidable
breakdown. The 1999 Policy clearly provides that the source has the
burden to prove the elements of the affirmative defense to penalties.
Third, who decides whether a breakdown qualifies as unavoidable
makes a difference. As we have indicated, the UBR appears to give the
Utah executive secretary exclusive authority to determine whether a
violation has occurred--i.e., whether a breakdown was an unavoidable
breakdown. As noted, potential preclusion of EPA and citizen
enforcement reduces the incentive for sources to improve their design,
maintenance, and operation practices.
(m) Comment: Commenters assert that Utah's Unavoidable Breakdown
Rule is generally consistent with EPA's criteria in the 1999 Policy and
provide their own side-by-side comparison of the
[[Page 21649]]
1999 Policy's affirmative defense provisions to the relevant provisions
in Utah's Unavoidable Breakdown Rule. Commenters state that this
comparison shows the criteria contained in the 1999 Policy are
addressed ``in all material respects'' by the Utah UBR, and that it is
therefore difficult to understand EPA's conclusion of substantial
inadequacy.
Response: The commenters have not alleviated our concerns. In our
proposal and elsewhere in this notice, we identify fundamental flaws in
the UBR that render the UBR substantially inadequate regardless of the
criteria for determining whether a breakdown is unavoidable.
We also disagree with the commenters that the criteria are
equivalent. We find that the UBR lacks the specificity contained in the
1999 Policy. For example, the 1999 Policy indicates that the source
needed to use off-shift labor and overtime, to the extent practicable,
to make repairs and needed to make repairs expeditiously when it knew
or should have known that emissions limits were being exceeded. This
specificity helps define the more general admonition in the policy that
the source needs to employ good practices for minimizing emissions. We
have already noted that the UBR criteria do not appear to address
proper design of the facility, and they do not require reporting of all
breakdowns. Also, the UBR does not require that the owner or operator
document its actions in response to the breakdown with signed,
contemporaneous operating logs.
Finally, we note that one significant difference between the
affirmative defense described in the 1999 Policy and the UBR is that
the affirmative defense recognizes that a violation of the emissions
standard has occurred and provides relief only for actions for
penalties. The UBR provides that the excess emissions are excused and
would prohibit any action for penalties and any action for injunctive
relief.
(n) Comment: The terms of the UBR are analogous to the criteria
that EPA's 1982 and 1983 policies provided for analyzing whether a
malfunction ought to spur enforcement action under the enforcement
discretion approach. The UBR does not provide an automatic exemption as
described in those policies.
Response: See our previous response. Also, assuming the comment
regarding the criteria is relevant, we disagree with the commenter. The
UBR is inconsistent with the 1982 and 1983 Policies in several
respects. Specifically, the 1983 Policy states that ``EPA can approve
SIP revisions which incorporate the `enforcement discretion approach.'
Such an approach can require the source to demonstrate to the
appropriate State agency that the excess emissions, though constituting
a violation, were due to an unavoidable malfunction. Any malfunction
provision must provide for the commencement of a proceeding to notify
the source of its violation and to determine whether enforcement action
should be undertaken for any period of excess emissions.'' (Emphasis
added). The UBR does not require the State to initiate a proceeding to
notify the source of its violation. Moreover, contrary to the
foregoing, the UBR specifically provides that the executive secretary
may decide that the excess emissions are not a violation, which could
preclude enforcement action by EPA or citizens as well as injunctive
relief. Finally, the 1999 Policy clarified the meaning of the term
``automatic exemption.'' As we explain elsewhere, the UBR clearly
provides an automatic exemption.
(o) Comment: EPA fails to acknowledge Utah Rule R307-107-1,
`Application', which states ``Breakdowns that are caused entirely or in
part by poor maintenance, careless operation, or any other preventable
upset condition or preventable equipment breakdown shall not be
considered unavoidable breakdown.'' Therefore, commenters state EPA's
complaint claiming that ``the rule's exemption reduces a source's
incentive to design, operate, and maintain its facility to meet
emission limits at all times'' is without merit.
Response: We disagree. First, the quoted language is part of the
criteria contained in the UBR. See our responses to comments comparing
the criteria of the UBR to the criteria contained in our SSM policies.
Second, considered as a whole, we conclude that the UBR reduces a
source's incentive to meet its emission limits at all times. We have
explained the basis for our view in our responses to previous comments.
In particular, the rule appears to give the executive secretary
exclusive authority to decide whether a breakdown meets the criteria
under the UBR and thus, whether an exceedance is a violation.
(p) Comment: Commenters assert that EPA's SIP call is inconsistent
with the Federal-State partnership as contemplated in the CAA.
Commenters state that the CAA does not contemplate mandates to require
a State to modify its SIP, without regard to environmental or air
quality benefits, simply because EPA has a particular policy it wants
to advance.
Response: We are not acting at odds with the CAA's contemplated
Federal-State partnership. The CAA establishes minimum requirements for
SIPs and does not, as the commenters indicate, limit EPA's action to
simply reviewing a SIP to determine whether it will provide for
attainment and maintenance of the Act. Section 110(a)(2) provides a
specific list of obligations that a State must meet and we are acting
to ensure the Utah SIP meets those minimum requirements. In particular,
we are acting to ensure that SIP emission limits, and related permit
limits, which are for the purpose of attaining and maintaining the
health-based air quality standards, protecting increments, and
improving visibility in national parks and wilderness areas, can be
enforced at all times as contemplated by sections 110 and 302 of the
Act. We are also acting to ensure that Utah's SIP does not undermine
delegated national standards like NSPS and NESHAPS.
(q) Comment: It is left to the states, and not EPA, to choose how
they will achieve assigned emission reduction levels. Section 110
allows for a SIP call only if the state is not achieving NAAQS. As long
as a state achieves the applicable air quality standards, Congress did
not intend EPA to require a plan revision merely because it disagrees
with the measure that a state implements.
Response: We are not interfering with Utah's selection of SIP
emissions limits. We are acting to ensure that one element of the SIP--
the UBR--is modified or removed so that it does not interfere with one
of the minimum requirements of the CAA--that the SIP limits relied on
to attain and maintain the NAAQS, protect increments, and protect
visibility apply and be enforceable at all times. Furthermore, in the
context of NSPS and NESHAPS, to which the UBR also applies, it is up to
EPA to select emission limits (and any exemptions), not the State.
We disagree that section 110 only allows a SIP call if the State is
not achieving the NAAQS. One commenter cites Virginia v. EPA, 108 F.3d
1397, 1410 (DC Cir. 1997) to support its view, but that court was
addressing whether EPA could impose specific control requirements
through its NOX SIP call and did not reach the holding the
commenter alleges. Such a holding would be inconsistent with the plain
language of section 110 and the legislative history. Congress
specifically amended CAA section 110(a)(2)(H) in 1977 to add the
phrase, ``or to otherwise comply with any additional requirements
established under this chapter'' to the language, ``is substantially
inadequate to attain the national ambient air quality standard.'' CAA
section 110(k)(5), added in 1990, is
[[Page 21650]]
in accord. In other words, there are other instances in which a SIP
call may be issued. Fundamentally, SIP limits must be enforceable and
apply continuously to meet CAA requirements (CAA sections 110(a)(2)(A)
and (C) and 302(k)), and where these requirements are not met, a SIP
call is warranted.
Furthermore, as noted already, a number of areas in Utah are
designated nonattainment and have violated, or are violating various
NAAQS.
(r) Comment: Some commenters assert that allowing EPA to proceed
with a SIP call here in the absence of data showing the UBR has caused
specific NAAQS violations could set the stage for unfettered, arbitrary
EPA SIP calls with respect to any number of state rules. A commenter
asserts that EPA's SIP call runs counter to past EPA SIP calls. Another
asserts that EPA erroneously finds that the SIP call does not have
Federalism implications. A commenter references an EPA action under CAA
section 110(k)(6) with respect to a Nevada malfunction rule to argue
that the SIP call is arbitrary.
Response: We explain above why we think we have a valid basis for
the SIP call. We note that we have rarely issued SIP calls, but in any
event, the commenters' fears about potential future EPA SIP calls are
irrelevant to this action. The question is whether we have reasonably
concluded that the UBR renders the Utah SIP substantially inadequate as
provided under 110(k)(5). We conclude we have. Whether other SIPs or
SIP rules are substantially inadequate will depend on the language of
those rules and facts relevant to them. The comment that this SIP call
is inconsistent with past EPA SIP calls is also inaccurate. While in
some cases EPA has issued SIP calls to address specific violations of
the NAAQS, EPA has also issued a SIP Call notifying certain States that
their SIPs were inadequate to comply with sections 110(a)(2)(A) and (C)
of the CAA because the SIPs could be interpreted to limit the types of
evidence or information that could be used for determining compliance
with and establishing violations of emissions limits. See 62 FR 8314,
8327 (February 24, 1997); October 20, 1999 letter from William
Yellowtail to Governor Marc Racicot. We stand by our conclusion that
the SIP call does not have Federalism implications within the meaning
of Executive Order 13132; we are issuing a SIP call as required by
sections 110(a)((2)(H) and 110(k)(5) of the CAA, following a finding of
substantial inadequacy. Finally, regarding the vague reference (without
citation) to EPA Region 9's proposal to address issues with the Nevada
SIP using the authority of CAA section 110(k)(6) (not section
110(a)(2)(H) or 110(k)(5)), we are unable to ascertain the relevance.
Section 110(k)(6) provides an additional tool to ensure that SIPs are
consistent with the requirements of the Act, and whether it could have
been used in this instance does not implicate whether sections
110(a)(2)(H) and 110(k)(5) are appropriate tools to use. To the extent
the commenter is suggesting that our SIP call is arbitrary because EPA
Region 9 has not finalized its proposed 110(k)(6) action, we
respectfully disagree.
(s) Comment: Utah's UBR is ``clearly less stringent than the CAA
and EPA rules and guidance.''
Response: We agree that the UBR does not meet minimum CAA
requirements and thus is substantially inadequate.
C. Sanctions
(a) Comment: Commenter asserts that EPA fails to meet the
requirements to impose mandatory sanctions under the CAA because
sanctions can only be triggered by a ``finding of substantial
inadequacy.'' The commenter also asserts that sanctions are unwarranted
because Utah has always acted in good faith to involve all
stakeholders, including EPA, in an attempt to craft a clarified rule.
The commenter expresses concern that sanctions would harm Utah's
economy in these difficult economic times and indicates that EPA''
should be circumspect in brandishing its sanctions club.''
Response: This rulemaking action finalizes our finding of
substantial inadequacy under CAA section 110(k)(5), and the State is
required to submit a SIP revision in response to the finding of
substantial inadequacy. If the State fails to submit the required SIP,
the 18-month period before mandatory sanctions apply under section 179
will be triggered.
Under CAA section 179, whether or not Utah has acted in good faith
to change the UBR is irrelevant; we lack authority to forestall the
mandatory sanctions if EPA determines Utah has failed to respond to the
SIP call or submits an incomplete or disapprovable SIP. Utah, however,
has the power to avoid sanctions and any economic impacts to the State
by submitting an approvable SIP addressing our SIP call. We have
provided additional time, at the State's request, for the State to make
its submission. Finally, as we noted in our proposal, other States in
the Region have changed their SSM rules and gained EPA's approval.
(b) Comment: If EPA were to impose statewide sanctions, it would
violate 40 CFR 52.30(b) if the criteria of 40 CFR 52.30(c) are met by
one or more political subdivisions within the State.
Response: No commenter has suggested that a political subdivision
within Utah meets the criteria of 40 CFR 52.30(c). However, as
described in the ``Final Action'' section of this action, we are
deferring a decision on whether to impose sanctions under section
110(m) and will consider any comments on the issue of imposing
sanctions under section 110(m) if and when we take final action on this
issue in the future.
(c) Comment: EPA's discretion under the CAA ``must not be
unreasonable or arbitrary. Since the EPA has not identified any reasons
upon which consideration of statewide sanctions was based, the EPA has
not provided adequate notice to the public of whether the exercise of
discretionary authority under CAA Section 110(m) is appropriate in this
case.''
Response: While we provided a reason in our proposal--namely, that
the UBR applies statewide--we are deferring a decision on whether to
impose discretionary sanctions.
(d) Comment: Transportation and mobile sources should not be
punished for a rule governing industry operations. The commenter
therefore recommends that EPA ``include a `Protective finding' in the
SIP call for mobile sources,'' which ``would prevent the automatic
`freeze' of conformity and allow for operations to continue for at
least two years after an EPA disapproval takes effect.'' Another
commenter expresses concern that sanctions would negatively impact
transit services.
Response: EPA does not intend to ``punish'' anyone. The purpose of
sanctions is to encourage corrective action by the State. The
applicable sanctions are specified by Congress, not EPA. As noted
above, sanctions can be avoided altogether by Utah's timely submission
of an approvable revision to the SIP. Regarding the suggestion that we
provide a protective finding, our interpretation is that disapproval of
any rule submitted in response to this SIP call would not result in a
conformity freeze because the revision at issue is not a control
strategy SIP revision governed by 40 CFR 93.120. The metropolitan
planning organization could continue to make conformity determinations
even after such a disapproval. Also, for the same reason, even if
highway sanctions are triggered by future disapproval of a revised
breakdown rule, a conformity lapse would not occur because we would not
be disapproving a control strategy SIP revision. If highway sanctions
are triggered, certain projects, such as transit projects and highway
safety and
[[Page 21651]]
maintenance projects, could still go forward. See 61 FR 14363 (April 1,
1996), which contains the Federal Highway Administration's sanction
exemption criteria policy.
(e) Comment: EPA sanctions on transportation funding might slow
improvements to transportation projects across Utah, potentially
resulting in diminished air quality in both attainment and
nonattainment areas across the state. Sanctions on transportation
funding might also stifle growth.
Response: See our previous responses. As noted, the sanctions would
be mandatory in certain areas. The sanctions can be avoided through
appropriate State action, and certain projects can proceed even if
highway sanctions are triggered. As noted, we are deferring a decision
on whether to impose discretionary sanctions under CAA section 110(m).
(f) Comment: EPA should not impose statewide sanctions, because
this would punish portions of the state that are in compliance with the
CAA.
Response: As noted, we are deferring a decision on whether to
impose the sanctions under CAA section 110(m).
(g) Comment: Applying sanctions only in nonattainment areas rather
than statewide would be inconsistent with the CAA, as the intent of the
CAA ``is not simply to attain the NAAQS and other CAA requirements, but
to maintain compliance.''
Response: As noted, we are deferring a decision regarding the
application of sanctions statewide. However, we note that the CAA
provides us with discretion to expand the scope of the sanctions; it
does not require we do so.
(h) Comment: EPA should apply sanctions if Utah fails to correct
the UBR.
Response: As noted, mandatory sanctions will apply if the relevant
triggering events occur. We are deferring a decision regarding the
application of discretionary sanctions. See the ``Final Action''
section of this action, above.
D. Time Period for Response to SIP Call
(a) Comment: Utah requests that EPA grant the entire 18 months
allowed by section CAA 179(a). Twelve months is an extremely short time
to gather stakeholders, build consensus, draft a proposed rule, and
allow for public participation, especially considering the considerable
workload UDAQ faces aside from this SIP Call. Utah states that a
response time of less than 18 months may cause a change in the
prioritization and possibly compromise other air quality efforts by the
State including the development of its Regional Haze Rule, the
development of its PM2.5 SIP revision, and efforts to meet
the lower ozone standard. Another commenter believes that 12 months is
an appropriate response period, while another argues for six months.
Response: In our proposed rulemaking action (see 75 FR 70893), we
proposed that 12 months would be an appropriate length of time for Utah
to respond to this SIP call. We viewed this as an acceptable time frame
given the history with the State of Utah regarding the UBR and the time
it has taken other States to submit SIPs addressing SSM rules. We have
considered the State's comments and appreciate the resource burden a
12-month time frame would pose for UDAQ in view of the State's current
work with its Regional Haze SIP revision, the development of its
PM2.5 attainment SIP revision (for three PM2.5
nonattainment areas), and the potential for additional resource
requirements to meet EPA's forthcoming reconsidered 8-hour ozone NAAQS.
We also conclude that six months may not provide the State with
sufficient time to revise the rule and still provide a reasonable
opportunity for public input. Therefore, as CAA section 110(k)(5)
grants EPA the authority to establish ``reasonable deadlines'' up to 18
months for a State to respond to a SIP call, and in view of the
resource requirements that this SIP call will impose on the State in
addition to those noted above, we have decided to grant the full 18
months for response as allowed by the CAA. We consider this a
reasonable time period for the State to revise the rule, provide for
public input, process the SIP revision through the State's procedures,
and submit the SIP revision to us. We encourage the State to work with
us on appropriate rule language and to submit the SIP revision as soon
as possible.
E. Miscellaneous Comments
(a) Comment: The commenters support EPA's action, and believe the
action benefits the health and well-being of Utah citizens.
Response: We acknowledge receipt of the comment and the support for
our proposal.
(b) Comment: Utah's UBR does not give industry incentive to design,
operate and maintain equipment to meet emission limits at all times.
Response: We agree.
(c) Comment: The Utah UBR prevents the opportunity for citizen
enforcement or injunctive relief.
Response: We agree that the UBR may preclude citizen enforcement or
injunctive relief.
(d) Comment: EPA has notified Utah of the need to change their UBR
on many occasions.
Response: We agree.
(e) Comment: SSM plans should be part of Title V permits so that
information such as emission limits will be available to the public.
Response: This comment is not directly relevant to our action
today, which does not address the treatment of SSM plans in Title V
permits.
(f) Comment: EPA should include Utah R307-415-(7)(g) ``Startup Shut
down and Malfunction'' in its analysis.
Response: Our review indicates that Utah rule R307-415-(7)(g) is
part of Utah's Title V operating permit regulations and is titled
``Permit Revision: Reopening for Cause.'' Utah's Title V regulations
are separate from and not approved as part of the SIP. Thus, our SIP
call authority is not applicable to those regulations. We were unable
to find any discussion of startup, shutdown, or malfunction in R307-
415-(7)(g) and, thus, are unable to respond more extensively to the
comment.
V. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001).
This action only requires the State of Utah to revise Utah rule
R307-107 to address requirements of the CAA. Accordingly, I certify
that this action will not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.) because this action does not impose any
requirements on small entities.
Since the only costs of this action will be those associated with
preparation and submission of the SIP revision, EPA has determined that
this action does not include a Federal mandate that may result in
expenditures of $100 million or more to either State, local, or Tribal
governments in the aggregate, or to the private sector in any one year.
Accordingly, this action is not subject to the requirements of sections
202 or 205 of the unfunded mandates reform act (UMRA).
In addition, since the only regulatory requirements of this action
apply solely to the State of Utah, this action is not subject to the
requirements of section
[[Page 21652]]
203 of UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments.
Since this action imposes requirements only on the State of Utah,
it also does not have Tribal implications. It will not have a
substantial direct effect on one or more Indian Tribes, on the
relationship between the Federal Government and Indian Tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian Tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
This action also does not have Federalism implications because it
will not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132 (64 FR 43255, August
10, 1999), because it will simply maintain the relationship and the
distribution of power and responsibilities between EPA and the States
as established by the CAA. This SIP call is required by the CAA because
EPA has found the current SIP is substantially inadequate to attain or
maintain the NAAQS or comply with other CAA requirements. Utah's direct
compliance costs will not be substantial because the SIP call requires
Utah to submit only those revisions necessary to address the SIP
deficiencies and applicable CAA requirements.
EPA interprets Executive Order 13045 ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997) as applying only to those regulatory actions that concern health
or safety risks, such that the analysis required under section 5-501 of
the EO has the potential to influence the regulation. This action is
not subject to EO 13045 because it does not establish an environmental
standard, but instead requires Utah to revise a State rule to address
requirements of the CAA.
Section 12 of the National Technology Transfer and Advancement Act
of 1995 requires Federal agencies to evaluate existing technical
standards when developing a new regulation. To comply with the National
Technology Transfer and Advancement Act, EPA must consider and use
``voluntary consensus standards'' (VCS) if available and applicable
when developing programs and policies unless doing so would be
inconsistent with applicable law or otherwise impractical. In making a
finding of a SIP deficiency, EPA's role is to review existing
information against previously established standards. In this context,
there is no opportunity to use VCS. Thus, the requirements of section
12(d) of the National Technology Transfer and Advancement Act of 1995
(15 U.S.C. 272 note) do not apply.
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.), since it only requires the State of Utah to revise Utah rule
R307-107 to address requirements of the CAA.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by June 17, 2011. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: March 31, 2011.
James B. Martin,
Regional Administrator, Region 8.
[FR Doc. 2011-9215 Filed 4-15-11; 8:45 am]
BILLING CODE 6560-50-P