81 FR 75361 - Approval and Promulgation of Air Quality Implementation Plans; State of Utah; Revisions to Nonattainment Permitting Regulations

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 81, Issue 210 (October 31, 2016)

Page Range		75361-75365
FR Document		2016-26233
The Environmental Protection Agency (EPA) is proposing to conditionally approve State Implementation Plan (SIP) revisions submitted by the state of Utah on August 20, 2013, with supporting administrative documentation submitted on September 12, 2013. These submittals revise the Utah Administrative Code (UAC) that pertain to the issuance of Utah air quality permits for major sources in nonattainment areas. The EPA proposes a conditional approval because while the submitted revisions to Utah's nonattainment permitting rules do not fully address the deficiencies in the state's program, Utah has committed to address additional remaining deficiencies in the state's nonattainment permitting program no later than a year from the EPA finalizing this conditional approval. If finalized, and upon the EPA finding a timely meeting of this commitment in full, the proposed conditional approval of the SIP revisions would convert to a final approval of Utah's plan. This action is being taken under section 110 of the Clean Air Act (CAA) (Act).
Federal Register, Volume 81 Issue 210 (Monday, October 31, 2016)
[Federal Register Volume 81, Number 210 (Monday, October 31, 2016)]
[Proposed Rules]
[Pages 75361-75365]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-26233]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2016-0620; FRL-9954-67-Region 8]


Approval and Promulgation of Air Quality Implementation Plans; 
State of Utah; Revisions to Nonattainment Permitting Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
conditionally approve State Implementation Plan (SIP) revisions 
submitted by the state of Utah on August 20, 2013, with supporting 
administrative documentation submitted on September 12, 2013. These 
submittals revise the Utah Administrative Code (UAC) that pertain to 
the issuance of Utah air quality permits for major sources in 
nonattainment areas. The EPA proposes a conditional approval because 
while the submitted revisions to Utah's nonattainment permitting rules 
do not fully address the deficiencies in the state's program, Utah has 
committed to address additional remaining deficiencies in the state's 
nonattainment permitting program no later than a year from the EPA 
finalizing this conditional approval. If finalized, and upon the EPA 
finding a timely meeting of this commitment in full, the proposed 
conditional approval of the SIP revisions would convert to a final 
approval of Utah's plan. This action is being taken under section 110 
of the Clean Air Act (CAA) (Act).

DATES: Written comments must be received on or before November 30, 
2016.

ADDRESSES: Submit your comments, identified by EPA-R08-OAR-2016-0620 at 
http://www.regulations.gov. Follow the online instructions for 
submitting comments. Once submitted, comments cannot be edited or 
removed from regulations.gov. The EPA may publish any comment received 
to its public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. The EPA will

[[Page 75362]]

generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the Web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly-available docket materials are available at http://www.regulations.gov or in hard copy at the EPA Region 8, Office of 
Partnerships and Regulatory Assistance, Air Program, 1595 Wynkoop 
Street, Denver, Colorado 80202-1129. The EPA requests that if at all 
possible, you contact the individual listed in the FOR FURTHER 
INFORMATION CONTACT section to view the hard copy of the docket. You 
may view the hard copy of the docket Monday through Friday, 8:00 a.m. 
to 4:00 p.m., excluding federal holidays.

FOR FURTHER INFORMATION CONTACT: Kevin Leone, Air Program, EPA, Region 
8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129, 
(303) 312-6227, [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

What should I consider as I prepare my comments for the EPA?

    a. Submitting CBI. Do not submit CBI to EPA through http://www.regulations.gov or email. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD ROM that you mail to the EPA, mark the outside of the disk or CD ROM 
as CBI and then identify electronically within the disk or CD ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    b. Tips for Preparing Your Comments. When submitting comments, 
remember to:
    i. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    ii. Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
    iii. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    iv. Describe any assumptions and provide any technical information 
and/or data that you used.
    v. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    vi. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    vii. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    viii. Make sure to submit your comments by the comment period 
deadline identified.

II. Background

    On May 10, 2001, the EPA sent Utah a letter outlining concerns that 
Utah's nonattainment permitting rules, which are codified in UAC R307-
403 (Permits: New and Modified Sources in Nonattainment Areas and 
Maintenance Areas), have not been consistent with federal requirements 
(see docket R08-OAR-2016-0620). On August 20, 2013, with supporting 
administrative documentation submitted on September 12, 2013, Utah sent 
the EPA revisions to their nonattainment permitting regulations, 
specifically to address EPA identified deficiencies in their 
nonattainment permitting regulations that affected the EPA's ability to 
approve Utah's PM10 maintenance plan and that may affect the 
EPA's ability to approve of Utah's PM2.5 SIP. These 
revisions addressed R307-403-1 (Purpose and Definitions), R307-403-2 
(Applicability), R307-403-11 (Actual Plant-wide Applicability Limits 
(PALs)), and R307-420 (Ozone Offset Requirements in Davis and Salt Lake 
Counties). In addition, Utah moved R307-401-19 (Analysis of 
Alternatives) to R307-403-10 and moved R307-401-20 (Relaxation of 
Limits) to R307-403-2. On June 2, 2016, the EPA entered into a consent 
decree with the Center for Biological Diversity, Center for 
Environmental Health, and Neighbors for Clean Air regarding a failure 
to act, pursuant to CAA sections 110(k)(2)-(4), on certain complete SIP 
submissions from states intended to address specific requirements 
related to the 2006 p.m.2.5 NAAQS for certain nonattainment 
areas, including the submittal from the Governor of Utah dated August 
20, 2013.
    The SIP revisions submitted by the Utah Department of Air Quality 
(UDAQ) on August 20, 2013, establish specific nonattainment new source 
review permitting requirements. In this revision, the UDAQ has 
incorporated federal regulatory language--establishing permitting 
requirements for new and modified major stationary sources in a 
nonattainment area--from portions of 40 CFR 51.165 and reformatted it 
into state-specific requirements for sources in Utah under R307-403-1 
(Purpose and Definitions) and R307-403-2 (Applicability), including 
provisions relevant to nonattainment NSR programs for PM2.5 
nonattainment areas. Additionally, UDAQ incorporated by reference the 
provisions of 40 CFR 51.165(f)(1)-(f)(14) into 307-403-11 (Actual 
PALs), and revised R307-420 to state that the definitions and 
applicability provisions in R307-403-1 apply to this section.
    CAA section 110(a)(2)(C) requires each state plan to include ``a 
program to provide for . . . regulation of the modification and 
construction of any stationary source within the areas covered by the 
plan as necessary to assure that [NAAQS] are achieved, including a 
permit program as required in parts C and D of this subchapter,'' and 
CAA section 172(c)(5) provides that the plan ``shall require permits 
for the construction and operation of new or modified major stationary 
sources anywhere in the nonattainment area, in accordance with section 
[173].'' CAA section 173 lays out the requirements for obtaining a 
permit that must be included in a state's SIP-approved permit program. 
CAA section 110(a)(2)(A) requires that SIPs contain enforceable 
emissions limitations and other control measures. Under section CAA 
section 110(a)(2), the enforceability requirement in section 
110(a)(2)(A) applies to all plans submitted by a state. CAA section 
110(i) (with certain limited exceptions) prohibits states from 
modifying SIP requirements for stationary sources except through the 
SIP revision process. CAA section 172(c)(7) requires that nonattainment 
plans, including nonattainment New Source Review (NSR) programs 
required by section 172(c)(5), meet the applicable provisions of 
section 110(a)(2), including the requirement in section 110(a)(2)(A) 
for enforceable emission limitations and other control measures. CAA 
section 110(l) provides that the

[[Page 75363]]

EPA cannot approve a SIP revision that interferes with any applicable 
requirement of the Act.
    Section 51.165 in title 40 of the CFR (Permit Requirements) sets 
out the minimum plan requirements states are to meet within each SIP 
nonattainment NSR permitting program. Generally, 40 CFR 51.165 consists 
of a set of definitions, minimum plan requirements regarding procedures 
for determining applicability of nonattainment NSR and use of offsets, 
and minimum plan requirements regarding other source obligations, such 
as recordkeeping.
    Specifically, subparagraphs 51.165(a)(1)(i) through (xlvi) 
enumerate a set of definitions which states must either use or replace 
with definitions that a state demonstrates are more stringent or at 
least as stringent in all respects. Subparagraph 51.165(a)(2) sets 
minimum plan requirements for procedures to determine the applicability 
of the nonattainment NSR program to new and modified sources. 
Subparagraph 51.165(a)(3), (a)(9) and (a)(11) set minimum plan 
requirements for the use of offsets by sources subject to nonattainment 
NSR requirements. Subparagraphs (a)(8) and (a)(10) regard precursors, 
and subparagraphs (a)(6) and (a)(7) regard recordkeeping obligations. 
Subparagraph 51.165(a)(4) allows nonattainment NSR programs to treat 
fugitive emissions in certain ways. Subparagraph 51.165(a)(5) regards 
enforceable procedures for after approval to construct has been 
granted. Subparagraph 51.165(b) sets minimum plan requirements for new 
major stationary sources and major modifications in attainment and 
unclassifiable areas that would cause or contribute to violations of 
the national ambient air quality standards (NAAQS.) Finally, 
subparagraph 51.165(f) sets minimum plan requirements for the use of 
PALs. Please refer to docket EPA-R08-OAR-2016-0620 to view a cross-walk 
table which outlines how Utah's nonattainment permitting rules 
correlate with the requirements of 40 CFR 51.165.
    Clean Air Act section 189(e) requires that state SIPs apply the 
same control requirements that apply to major stationary sources of 
PM10 to major stationary sources of PM10 
precursors, ``except where the Administrator determines that such 
sources do not contribute significantly to PM10 levels which 
exceed the standard in the area.'' On January 4, 2013, the U.S. Court 
of Appeals for the District of Columbia Circuit, in Natural Resources 
Defense Council v. EPA, 706 F.3d 428 (D.C. Cir. 2013), issued a 
decision that remanded the EPA's 2008 PM2.5 NSR 
Implementation Rule (73 FR 28321). The court found that the EPA erred 
in implementing the PM2.5 NAAQS in these rules solely 
pursuant to the general implementation provisions of subpart 1 of part 
D of title I of the CAA, rather than pursuant to the additional 
implementation provisions specific to particulate matter nonattainment 
areas in subpart 4. In particular, subpart 4 includes section 189(e) of 
the CAA, which requires the control of major stationary sources of 
PM10 precursors (and hence under the court decision, 
PM2.5 precursors) ``except where the Administrator 
determines that such sources do not contribute significantly to 
PM10 levels which exceed the standard in the area.'' 
Accordingly, nonattainment NSR programs that are submitted for 
PM2.5 nonattainment areas must regulate all PM2.5 
precursors, i.e., SO2, NOX, VOC, and ammonia, 
unless the Administrator determines that such sources of a particular 
precursor do not contribute significantly to nonattainment in the 
nonattainment area. The EPA recently finalized a new provision at 40 
CFR 51.165(a)(13) that codifies this requirement, as it applies to 
PM2.5, in the federal regulations.
    As a result, it became clear that Utah needed to submit further 
revisions to address remaining deficiencies in the nonattainment 
permitting program for the EPA to approve the August 20, 2013, 
submittal. Included as part of those deficiencies was that Utah has not 
submitted an analysis demonstrating that sources of ammonia, as a 
PM2.5 precursor, do not contribute significantly to 
PM2.5 levels that exceed the NAAQS in nonattainment areas in 
the State. On September 30, 2016, Utah submitted to EPA a commitment 
letter in which Utah commits to address additional remaining 
deficiencies in the State's nonattainment permitting program in R307-
403 by December 8, 2017, that were not addressed in the August 20, 
2013, submittal, including revisions to R307-403-2, R307-403-3, and 
R307-403-4. In Utah's commitment letter, Utah specifies that:
    1. UDAQ commits to submit a SIP revision that either regulates 
major stationary sources of the pursuant to Utah's nonattainment new 
source review (NNSR) permitting program, consistent with all applicable 
federal regulatory requirements or demonstrates that sources of 
ammonia, as a PM2.5 precursor, do not contribute 
significantly to PM2.5 levels that exceed the NAAQS in 
nonattainment areas in the state, consistent with new provisions at 40 
CFR 51.1006(a)(3);
    2. UDAQ commits to revise R307-403-2 consistent with the new 
definitions in 40 CFR 51.165 that EPA recently finalized in the 
PM2.5 SIP Requirements Rules;
    3. UDAQ commits to revise R307-403-3, including R307-403-3(3), to 
remove the reference to NNSR determinations being made ``at the time of 
the source's proposed start-up date'';
    4. UDAQ commits to revise R307-403-3, including R307-403-3(2) and 
R307-403-3(3), to specify that NNSR permit requirements are applicable 
to all new major stationary sources or major modifications located in a 
nonattainment area that are major for the pollutant for which the area 
is designated nonattainment;
    5. UDAQ commits to revise R307-403-3, in addition to the previously 
adopted definition of lowest achievable emission rate (LAER) in R307-
403-1, to explicitly state that LAER applies to all major new sources 
and major modifications for the relevant pollutants in nonattainment 
areas;
    6. UDAQ commits to revise R307-403-4 to incorporate the 
requirements from 40 CFR 51.165 to establish that all general offset 
permitting requirements apply for all offsets regardless of the 
pollutant at issue, and to revise the provision to impose immediate and 
direct general offset permitting requirements on all new major 
stationary sources or major modifications located in a nonattainment 
area that are major for the pollutant for which the area is designated 
nonattainment;
    7. UDAQ commits to work with the Utah Air Quality Board to revise 
R307-403-4 to reference the criteria discussed in section IV.D. of 40 
CFR 51, Appendix S; and
    8. UDAQ will update R307-403 to include a new section that imposes 
requirements that address emission offsets for PM2.5 
nonattainment areas (as required in 40 CFR 51.165(a)(11)) on NNSR 
sources in Utah. UDAQ will revise R307-403-3, including R307-403-
3(3)(c), to cross reference this new section, as well as the 
requirements in R307-403-4, R307-403-5, and R307-403-6; and UDAQ 
commits to work with the Utah Air Quality Board to revise this section 
to include the requirements of CAA Section 173(c)(1) and 40 CFR 51.165 
(specifically 40 CFR 51.165(a)(3)) concerning the requirement that 
creditable reductions be calculated based on actual emissions for 
offset purposes.
    Under section 110(k)(4) of the Act, the EPA may approve a SIP 
revision based on a commitment by the state to adopt specific 
enforceable measures by a date certain, but not later than one year 
after the date of approval of the plan revision.

[[Page 75364]]

Under a conditional approval, the state must adopt and submit the 
specific revisions it has committed to within one year of the EPA's 
finalization. If the EPA fully approves the submittal of the revisions 
specified in the commitment letter, the conditional nature of the 
approval would be removed and the submittal would become fully 
approved. If the state does not submit these revisions within one year, 
or if the EPA finds the state's revisions to be incomplete, or EPA 
disapproves the state's revisions, a conditional approval will convert 
to a disapproval. If any of these occur and the EPA's conditional 
approval converts to a disapproval, that will constitute a disapproval 
of a required plan element under part D of title I of the Act, which 
starts an 18-month clock for sanctions, see section 179(a)(2), and the 
two-year clock for a federal implementation plan (FIP), see section 
110(c)(1)(B).

III. Proposed Action

    The EPA is proposing to conditionally approve Utah's revisions 
submitted on August 20, 2013, which have not been withdrawn by Utah. 
These revisions addressed R307-403-1 (Purpose and Definitions), R307-
403-2 (Applicability), R307-403-11 (Actual PALs), and R307-420 (Ozone 
Offset Requirements in Davis and Salt Lake Counties). In addition, Utah 
moved R307-401-19 (Analysis of Alternatives) to R307-403-10 and moved 
R307-401-20 (Relaxation of Limits) to R307-403-2. The EPA proposes that 
these changes, when combined with the changes Utah has committed to 
submitting to the EPA by December 8, 2017, in Utah's September 30, 2016 
commitment letter, create enforceable obligations for sources and are 
consistent with the CAA and EPA regulations, including the requirements 
of CAA section 110(a)(2)(A), 110(a)(2)(C), 110(i), 110(l), 172(c)(5), 
172(c)(7), 173.
    The crosswalk table in the docket details how the submittal 
corresponds to specific requirements in 40 CFR 51.165; however, as 
stated earlier, we are not proposing to determine that Utah's 
PM2.5 nonattainment permitting rules meet all requirements 
of 40 CFR 51.165 at this time, but rather are conditionally approving 
these revisions based on Utah's September 30, 2016 commitment letter. 
If we finalize our proposed conditional approval, Utah must adopt and 
submit to the EPA the specific revisions it has committed to by 
December 8, 2017. If the EPA fully approves the submittal of the 
revisions specified in the commitment letter, the conditional nature of 
this proposed approval would be removed and the August 20, 2013 
submittal would, at that time, become fully approved. If Utah does not 
submit these revisions by December 8, 2017, or if we find Utah's 
revisions to be incomplete, or we disapprove Utah's revisions, the 
final conditional approval will convert to a disapproval. If any of 
these occur and our final conditional approval converts to a 
disapproval, that will constitute a disapproval of a required plan 
element under part D of title I of the Act, which starts an 18-month 
clock for sanctions, see CAA section 179(a)(2), and the two-year clock 
for a FIP, see CAA section 110(c)(1)(B).
    Specifically, we are proposing to conditionally approve:

R307-401-19 (Analysis of Alternatives)

    Section R307-401-19 being moved removed from R307-401-19 and being 
added to R307-403-10. Because this section applies only to major 
sources or major modifications that are located in a nonattainment area 
or impact a nonattainment area, this section is more appropriately 
located in R307-403.

R307-401-20 (Relaxation of Limits)

    Section R307-401-20 being moved removed from R307-401-19 and being 
added to R307-403-2. Because this section applies only to major sources 
or major modifications that are located in a nonattainment area or 
impact a nonattainment area, this section is more appropriately located 
in R307-403.

R307-403-1 (Purpose and Definitions)

    Language being added in R307-403-1(1)-(4) to parallel federal 
nonattainment permitting regulations in 40 CFR 51.165; however, Utah 
committed to addressing further deficiencies regarding ammonia as a 
precursor to PM2.5 in this section, as specified in Utah's 
September 30, 2016 commitment letter.
    In particular, R307-403-1(4)(b) states that ``ammonia is not a 
precursor to PM2.5 in the Logan, Salt Lake City, and Provo 
PM2.5 nonattainment areas as defined in the July 1, 2010 
version of 40 CFR 81.345,'' however, UDAQ has not submitted an analysis 
demonstrating that sources of ammonia, as a PM2.5 precursor, 
do not contribute significantly to PM2.5 levels that exceed 
the NAAQS in nonattainment areas in the State. UDAQ committed to submit 
a SIP revision that either regulates major stationary sources of 
ammonia pursuant to Utah's NNSR permitting program, consistent with all 
applicable federal regulatory requirements or demonstrates that sources 
of ammonia, as a PM2.5 precursor, do not contribute 
significantly to PM2.5 levels that exceed the NAAQS in 
nonattainment areas in the State, consistent with new provisions at 40 
CFR 51.1006(a)(3).

R307-403-2 (Applicability)

    The title of this section being changed from ``Emission 
Limitations'' to ``applicability'' and language being added to R307-
403-2(1)-(12) to parallel federal nonattainment permitting regulations 
in 40 CFR 51.165; however, Utah committed to addressing further 
deficiencies in this section in its September 30, 2016 commitment 
letter. Utah committed to revise R307-403-2 consistent with the new 
definitions in 40 CFR 51.165 that the EPA recently finalized in the 
PM2.5 SIP Requirements Rules.
    On September 23, 2016, Utah submitted a letter to the EPA 
requesting to withdraw R307-403-2(12) (see docket EPA-R08-OAR-2016-
0620.) As a result, we will not be acting on that subparagraph.

R307-403-11 (Actuals PALs)

    R307-403-11 being added to implement a portion of the EPA's NSR 
Reform provisions that were adopted in the federal regulations in 2002 
and have not yet been incorporated into the Utah Air Quality Rules. 
R307-403-11 incorporates by reference the provisions of 40 CFR 
51.165(f)(1) through (14).

R307-403-20 (Permits: Ozone Offset Requirements in Davis and Salt Lake 
Counties)

    This rule being revised to include the definitions and 
applicability provisions of R307-403-1. This rule change will ensure 
that the definitions and applicability provisions in R307-420 are 
consistent with related permitting rules in R307-403.
    UDAQ additionally committed to submit a revised SIP by December 8, 
2017 to: (1) Revise R307-403-3, including R307-403-3(3), to remove the 
reference to NNSR determinations being made ``at the time of the 
source's proposed start-up date; (2) revise R307-403-3, including R307-
403-3(2) and R307-403-3(3), to specify that NNSR permit requirements 
are applicable to all new major stationary sources or major 
modifications located in a nonattainment area that are major for the 
pollutant for which the area is designated nonattainment; (3) revise 
R307-403-3, in addition to the previously adopted definition of LAER in 
R307-403-1, to explicitly state that LAER applies to all major new 
sources and major modifications for the relevant pollutants in 
nonattainment areas; (4) revise R307-403-4 to incorporate the 
requirements from 40 CFR 51.165 to

[[Page 75365]]

establish that all general offset permitting requirements apply for all 
offsets regardless of the pollutant at issue, and to revise the 
provision to impose immediate and direct general offset permitting 
requirements on all new major stationary sources or major modifications 
located in a nonattainment area that are major for the pollutant for 
which the area is designated nonattainment; (5) revise R307-403-4 to 
reference the criteria discussed in section IV.D. of 40 CFR 51, 
Appendix S; (6) update R307-403, to include a new section that imposes 
requirements that address emission offsets for PM2.5 
nonattainment areas (as required in 40 CFR 51.165(a)(11)) on NNSR 
sources, and revise R307-403-3, including R307-403-3(3)(c), to cross 
reference this new section, as well as the requirements in R307-403-4, 
R307-403-5, and R307-403-6, and revise this section to include the 
requirements of CAA Section 173(c)(1) and 40 CFR 51.165 (specifically 
40 CFR 51.165(a)(3)) concerning the requirement that creditable 
reductions be calculated based on actual emissions for offset purposes; 
and (7) address further deficiencies regarding ammonia as a precursor 
to PM2.5.

IV. Consideration of Section 110(l) of the CAA

    Under section 110(l) of the CAA, the EPA cannot approve a SIP 
revision if the revision would interfere with any applicable 
requirements concerning attainment and reasonable futher progress (RFP) 
toward attainment of the NAAQS, or any other applicable requirement of 
the Act. In addition, section 110(l) requires that each revision to an 
implementation plan submitted by a state shall be adopted by the state 
after reasonable notice and public hearing.
    The Utah SIP revisions that the EPA is proposing to approve do not 
interfere with any applicable requirements of the Act. The revisions to 
R307-401 and R307-403 submitted by the Utah on August 20, 2013, are 
intended to strengthen the SIP. Therefore, CAA section 110(l) 
requirements are satisfied.

V. Incorporation by Reference

    In this rule, the EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by 
reference the UDAQ rules promulgated in the DAR, R307-400 Series as 
discussed in section III of this preamble. The EPA has made, and will 
continue to make, these materials generally available through 
www.regulations.gov and/or at the EPA Region 8 Office (please contact 
the person identified in the FOR FURTHER INFORMATION CONTACT section of 
this preamble for more information).

VI. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, the EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely proposes to approve state law as 
meeting federal requirements and does not impose additional 
requirements beyond those imposed by state law. For that reason, this 
proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     does not provide the EPA with the discretionary authority 
to address, as appropriate, disproportionate human health or 
environmental effects, using practicable and legally permissible 
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where the EPA or an Indian tribe 
has demonstrated that a tribe has jurisdiction. In those areas of 
Indian country, the proposed rule does not have tribal implications and 
will not impose substantial direct costs on tribal governments or 
preempt tribal law as specified by Executive Order 13175 (65 FR 67249, 
November 9, 2000).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Intergovernmental relations, Incorporation by reference, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organization compounds.

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

    Dated: October 20, 2016.
Shaun L. McGrath,
Regional Administrator, Region 8.
[FR Doc. 2016-26233 Filed 10-28-16; 8:45 am]
 BILLING CODE 6560-50-P
Federal Register / Vol. 81, No. 210 / Monday, October 31, 2016 / Proposed Rules 75361

purposes consistent with their process to facilitate directly arranged ENVIRONMENTAL PROTECTION
certification without the permission of visits that involve access to unclassified AGENCY
the controlling DoD office or when technical data and technology.
dissemination is: Activities under this process are limited 40 CFR Part 52
(1) To any foreign recipient for which to: [EPA–R08–OAR–2016–0620; FRL–9954–67–
the technical data and technology are (1) Procurement activities such as Region 8]
approved, authorized, or licensed in unclassified pre-solicitation
accordance with 22 U.S.C. 2778 or 15 conferences, discussions related to Approval and Promulgation of Air
CFR parts 730 through 774. unclassified solicitations, and collection Quality Implementation Plans; State of
(2) To another qualified U.S. of procurement unclassified documents. Utah; Revisions to Nonattainment
contractor including existing or Permitting Regulations
potential subcontractors, but only (2) Performance of an unclassified
within the scope of the certified contract. AGENCY: Environmental Protection
legitimate business purpose of the (3) Scientific research, in support of Agency (EPA).
recipient. unclassified U.S. or Canadian national ACTION: Proposed rule.
(3) To the Departments of State and defense initiatives.
Commerce to apply for approvals, (4) Attendance at restricted meetings, SUMMARY: The Environmental Protection
authorizations, or licenses for export conferences, symposia, and program Agency (EPA) is proposing to
pursuant to 22 U.S.C. 2778 or 15 CFR briefings where technical data and conditionally approve State
parts 730 through 774. The application technology governed by this part or Implementation Plan (SIP) revisions
will include a statement that the Canada Minister of Justice, Technical submitted by the state of Utah on
technical data and technology for which Data Control Regulations SOR/86–345, August 20, 2013, with supporting
the approval, authorization, or license is May 27, 2014 current edition will be administrative documentation
sought is controlled by the DoD in presented, or the event is being held in submitted on September 12, 2013. These
accordance with this part. an unclassified access controlled area. submittals revise the Utah
(4) To the Congress or any Federal, Administrative Code (UAC) that pertain
State, or local governmental agency for (b) A directly arranged visit does not to the issuance of Utah air quality
regulatory purposes or otherwise as may apply to uncertified U.S. or Canadian permits for major sources in
be required by law or court order. Any contractors; classified visits, where nonattainment areas. The EPA proposes
such dissemination will include a confirmation of the visitors’ security a conditional approval because while
statement that the technical data and clearances is required; or unsolicited the submitted revisions to Utah’s
technology are controlled by the DoD in marketing visits. nonattainment permitting rules do not
accordance with this part. (c) A directly arranged visit related to fully address the deficiencies in the
(j) A qualified contractor desiring to the release of information controlled in state’s program, Utah has committed to
disseminate technical data and the United States by this part or in address additional remaining
technology subject to this part in a Canada by Canada Minister of Justice, deficiencies in the state’s nonattainment
manner not permitted expressly by the Technical Data Control Regulations permitting program no later than a year
terms of this part must be granted SOR/86–345, May 27, 2014 current from the EPA finalizing this conditional
authority to do so by the controlling edition, is permitted when two approval. If finalized, and upon the EPA
DoD office, consistent with U.S. export conditions are satisfied. finding a timely meeting of this
control laws and regulations specified (1) First condition: commitment in full, the proposed
in 22 U.S.C. 2778, 50 U.S.C. chapter 35, conditional approval of the SIP
(i) There is a valid license covering
22 CFR parts 120 through 130, and 15 revisions would convert to a final
the export of the technical data and
CFR parts 730 through 774 and DoD approval of Utah’s plan. This action is
technology;
policies. being taken under section 110 of the
(k) Any requester denied technical (ii) The export or release is permitted Clean Air Act (CAA) (Act).
data and technology or any qualified under the Canadian exemption on 22
DATES: Written comments must be
U.S. contractor denied permission to CFR 126.5;
received on or before November 30,
disseminate such technical data and (iii) The export or release is covered 2016.
technology in accordance with this part by the general exemptions in 22 CFR
will be promptly provided with a 125.4; or ADDRESSES: Submit your comments,
written statement of reasons for that identified by EPA–R08–OAR–2016–
(iv) The export or release qualifies for 0620 at http://www.regulations.gov.
action, and advised of the right to make a license exception under 15 CFR parts
a written appeal to a specifically Follow the online instructions for
730 through 774. submitting comments. Once submitted,
identified appellate authority within the
DoD Component. Other appeals will be (2) Second condition: comments cannot be edited or removed
processed as directed by the (i) The distribution statement applied from regulations.gov. The EPA may
USD(AT&L). to the technical data and technology publish any comment received to its
(l) Denials will cite 10 U.S.C. 130 and pursuant to DoD Instruction 5230.24 public docket. Do not submit
133 as implemented by this part. permits release; or electronically any information you
Implementing procedures will provide (ii) The originator or government consider to be Confidential Business
Information (CBI) or other information
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for resolution of any appeal within 20 controlling office authorizes release.
working days. whose disclosure is restricted by statute.
Dated: October 26, 2016. Multimedia submissions (audio, video,
§ 250.7 Directly arranged visits. Aaron Siegel, etc.) must be accompanied by a written
(a) USG officials and certified U.S. Alternate OSD Federal Register Liaison comment. The written comment is
contractors and Canadian government Officer, Department of Defense. considered the official comment and
officials and certified Canadian [FR Doc. 2016–26236 Filed 10–28–16; 8:45 am] should include discussion of all points
contractors may use the certification BILLING CODE 5001–06–P you wish to make. The EPA will

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75362 Federal Register / Vol. 81, No. 210 / Monday, October 31, 2016 / Proposed Rules

generally not consider comments or i. Identify the rulemaking by docket requirements related to the 2006 p.m.2.5
comment contents located outside of the number and other identifying NAAQS for certain nonattainment areas,
primary submission (i.e., on the Web, information (subject heading, Federal including the submittal from the
cloud, or other file sharing system). For Register date and page number). Governor of Utah dated August 20,
additional submission methods, the full ii. Follow directions—The agency 2013.
EPA public comment policy, may ask you to respond to specific The SIP revisions submitted by the
information about CBI or multimedia questions or organize comments by Utah Department of Air Quality (UDAQ)
submissions, and general guidance on referencing a Code of Federal on August 20, 2013, establish specific
making effective comments, please visit Regulations (CFR) part or section nonattainment new source review
http://www2.epa.gov/dockets/ number. permitting requirements. In this
commenting-epa-dockets. iii. Explain why you agree or disagree; revision, the UDAQ has incorporated
Docket: All documents in the docket suggest alternatives and substitute federal regulatory language—
are listed in the http:// language for your requested changes. establishing permitting requirements for
www.regulations.gov index. Although iv. Describe any assumptions and new and modified major stationary
listed in the index, some information is provide any technical information and/ sources in a nonattainment area—from
not publicly available, e.g., CBI or other or data that you used. portions of 40 CFR 51.165 and
information whose disclosure is v. If you estimate potential costs or reformatted it into state-specific
restricted by statute. Certain other burdens, explain how you arrived at requirements for sources in Utah under
material, such as copyrighted material, your estimate in sufficient detail to R307–403–1 (Purpose and Definitions)
will be publicly available only in hard allow for it to be reproduced. and R307–403–2 (Applicability),
vi. Provide specific examples to including provisions relevant to
copy. Publicly-available docket
illustrate your concerns, and suggest nonattainment NSR programs for PM2.5
materials are available at http://
alternatives. nonattainment areas. Additionally,
www.regulations.gov or in hard copy at vii. Explain your views as clearly as
the EPA Region 8, Office of Partnerships UDAQ incorporated by reference the
possible, avoiding the use of profanity provisions of 40 CFR 51.165(f)(1)–(f)(14)
and Regulatory Assistance, Air Program, or personal threats.
1595 Wynkoop Street, Denver, Colorado into 307–403–11 (Actual PALs), and
viii. Make sure to submit your revised R307–420 to state that the
80202–1129. The EPA requests that if at comments by the comment period
all possible, you contact the individual definitions and applicability provisions
deadline identified. in R307–403–1 apply to this section.
listed in the FOR FURTHER INFORMATION
II. Background CAA section 110(a)(2)(C) requires
CONTACT section to view the hard copy
each state plan to include ‘‘a program to
of the docket. You may view the hard On May 10, 2001, the EPA sent Utah provide for . . . regulation of the
copy of the docket Monday through a letter outlining concerns that Utah’s modification and construction of any
Friday, 8:00 a.m. to 4:00 p.m., excluding nonattainment permitting rules, which stationary source within the areas
federal holidays. are codified in UAC R307–403 (Permits: covered by the plan as necessary to
FOR FURTHER INFORMATION CONTACT: New and Modified Sources in assure that [NAAQS] are achieved,
Kevin Leone, Air Program, EPA, Region Nonattainment Areas and Maintenance including a permit program as required
8, Mailcode 8P–AR, 1595 Wynkoop Areas), have not been consistent with in parts C and D of this subchapter,’’
Street, Denver, Colorado 80202–1129, federal requirements (see docket R08– and CAA section 172(c)(5) provides that
(303) 312–6227, leone.kevin@epa.gov. OAR–2016–0620). On August 20, 2013, the plan ‘‘shall require permits for the
SUPPLEMENTARY INFORMATION:
with supporting administrative construction and operation of new or
documentation submitted on September modified major stationary sources
I. General Information 12, 2013, Utah sent the EPA revisions to anywhere in the nonattainment area, in
What should I consider as I prepare my their nonattainment permitting accordance with section [173].’’ CAA
comments for the EPA? regulations, specifically to address EPA section 173 lays out the requirements
identified deficiencies in their for obtaining a permit that must be
a. Submitting CBI. Do not submit CBI nonattainment permitting regulations included in a state’s SIP-approved
to EPA through http:// that affected the EPA’s ability to permit program. CAA section
www.regulations.gov or email. Clearly approve Utah’s PM10 maintenance plan 110(a)(2)(A) requires that SIPs contain
mark the part or all of the information and that may affect the EPA’s ability to enforceable emissions limitations and
that you claim to be CBI. For CBI approve of Utah’s PM2.5 SIP. These other control measures. Under section
information in a disk or CD ROM that revisions addressed R307–403–1 CAA section 110(a)(2), the
you mail to the EPA, mark the outside (Purpose and Definitions), R307–403–2 enforceability requirement in section
of the disk or CD ROM as CBI and then (Applicability), R307–403–11 (Actual 110(a)(2)(A) applies to all plans
identify electronically within the disk or Plant-wide Applicability Limits (PALs)), submitted by a state. CAA section 110(i)
CD ROM the specific information that is and R307–420 (Ozone Offset (with certain limited exceptions)
claimed as CBI. In addition to one Requirements in Davis and Salt Lake prohibits states from modifying SIP
complete version of the comment that Counties). In addition, Utah moved requirements for stationary sources
includes information claimed as CBI, a R307–401–19 (Analysis of Alternatives) except through the SIP revision process.
copy of the comment that does not to R307–403–10 and moved R307–401– CAA section 172(c)(7) requires that
contain the information claimed as CBI 20 (Relaxation of Limits) to R307–403– nonattainment plans, including
must be submitted for inclusion in the 2. On June 2, 2016, the EPA entered into nonattainment New Source Review
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public docket. Information so marked a consent decree with the Center for (NSR) programs required by section
will not be disclosed except in Biological Diversity, Center for 172(c)(5), meet the applicable
accordance with procedures set forth in Environmental Health, and Neighbors provisions of section 110(a)(2),
40 CFR part 2. for Clean Air regarding a failure to act, including the requirement in section
b. Tips for Preparing Your Comments. pursuant to CAA sections 110(k)(2)–(4), 110(a)(2)(A) for enforceable emission
When submitting comments, remember on certain complete SIP submissions limitations and other control measures.
to: from states intended to address specific CAA section 110(l) provides that the

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EPA cannot approve a SIP revision that Implementation Rule (73 FR 28321). definitions in 40 CFR 51.165 that EPA
interferes with any applicable The court found that the EPA erred in recently finalized in the PM2.5 SIP
requirement of the Act. implementing the PM2.5 NAAQS in Requirements Rules;
Section 51.165 in title 40 of the CFR these rules solely pursuant to the 3. UDAQ commits to revise R307–
(Permit Requirements) sets out the general implementation provisions of 403–3, including R307–403–3(3), to
minimum plan requirements states are subpart 1 of part D of title I of the CAA, remove the reference to NNSR
to meet within each SIP nonattainment rather than pursuant to the additional determinations being made ‘‘at the time
NSR permitting program. Generally, 40 implementation provisions specific to of the source’s proposed start-up date’’;
CFR 51.165 consists of a set of particulate matter nonattainment areas 4. UDAQ commits to revise R307–
definitions, minimum plan in subpart 4. In particular, subpart 4 403–3, including R307–403–3(2) and
requirements regarding procedures for includes section 189(e) of the CAA, R307–403–3(3), to specify that NNSR
determining applicability of which requires the control of major permit requirements are applicable to
nonattainment NSR and use of offsets, stationary sources of PM10 precursors all new major stationary sources or
and minimum plan requirements (and hence under the court decision, major modifications located in a
regarding other source obligations, such PM2.5 precursors) ‘‘except where the nonattainment area that are major for
as recordkeeping. Administrator determines that such the pollutant for which the area is
Specifically, subparagraphs sources do not contribute significantly designated nonattainment;
51.165(a)(1)(i) through (xlvi) enumerate to PM10 levels which exceed the 5. UDAQ commits to revise R307–
a set of definitions which states must standard in the area.’’ Accordingly, 403–3, in addition to the previously
either use or replace with definitions nonattainment NSR programs that are adopted definition of lowest achievable
that a state demonstrates are more submitted for PM2.5 nonattainment areas emission rate (LAER) in R307–403–1, to
stringent or at least as stringent in all must regulate all PM2.5 precursors, i.e., explicitly state that LAER applies to all
respects. Subparagraph 51.165(a)(2) sets SO2, NOX, VOC, and ammonia, unless major new sources and major
minimum plan requirements for the Administrator determines that such modifications for the relevant pollutants
procedures to determine the sources of a particular precursor do not in nonattainment areas;
applicability of the nonattainment NSR contribute significantly to 6. UDAQ commits to revise R307–
program to new and modified sources. nonattainment in the nonattainment 403–4 to incorporate the requirements
Subparagraph 51.165(a)(3), (a)(9) and area. The EPA recently finalized a new from 40 CFR 51.165 to establish that all
(a)(11) set minimum plan requirements provision at 40 CFR 51.165(a)(13) that general offset permitting requirements
for the use of offsets by sources subject codifies this requirement, as it applies apply for all offsets regardless of the
to nonattainment NSR requirements. to PM2.5, in the federal regulations. pollutant at issue, and to revise the
Subparagraphs (a)(8) and (a)(10) regard As a result, it became clear that Utah provision to impose immediate and
precursors, and subparagraphs (a)(6) needed to submit further revisions to direct general offset permitting
and (a)(7) regard recordkeeping address remaining deficiencies in the requirements on all new major
obligations. Subparagraph 51.165(a)(4) nonattainment permitting program for stationary sources or major
allows nonattainment NSR programs to the EPA to approve the August 20, 2013, modifications located in a
treat fugitive emissions in certain ways. submittal. Included as part of those nonattainment area that are major for
Subparagraph 51.165(a)(5) regards deficiencies was that Utah has not the pollutant for which the area is
enforceable procedures for after submitted an analysis demonstrating designated nonattainment;
approval to construct has been granted. that sources of ammonia, as a PM2.5 7. UDAQ commits to work with the
Subparagraph 51.165(b) sets minimum precursor, do not contribute Utah Air Quality Board to revise R307–
plan requirements for new major significantly to PM2.5 levels that exceed 403–4 to reference the criteria discussed
stationary sources and major the NAAQS in nonattainment areas in in section IV.D. of 40 CFR 51, Appendix
modifications in attainment and the State. On September 30, 2016, Utah S; and
unclassifiable areas that would cause or submitted to EPA a commitment letter 8. UDAQ will update R307–403 to
contribute to violations of the national in which Utah commits to address include a new section that imposes
ambient air quality standards (NAAQS.) additional remaining deficiencies in the requirements that address emission
Finally, subparagraph 51.165(f) sets State’s nonattainment permitting offsets for PM2.5 nonattainment areas (as
minimum plan requirements for the use program in R307–403 by December 8, required in 40 CFR 51.165(a)(11)) on
of PALs. Please refer to docket EPA– 2017, that were not addressed in the NNSR sources in Utah. UDAQ will
R08–OAR–2016–0620 to view a cross- August 20, 2013, submittal, including revise R307–403–3, including R307–
walk table which outlines how Utah’s revisions to R307–403–2, R307–403–3, 403–3(3)(c), to cross reference this new
nonattainment permitting rules correlate and R307–403–4. In Utah’s commitment section, as well as the requirements in
with the requirements of 40 CFR 51.165. letter, Utah specifies that: R307–403–4, R307–403–5, and R307–
Clean Air Act section 189(e) requires 1. UDAQ commits to submit a SIP 403–6; and UDAQ commits to work
that state SIPs apply the same control revision that either regulates major with the Utah Air Quality Board to
requirements that apply to major stationary sources of the pursuant to revise this section to include the
stationary sources of PM10 to major Utah’s nonattainment new source requirements of CAA Section 173(c)(1)
stationary sources of PM10 precursors, review (NNSR) permitting program, and 40 CFR 51.165 (specifically 40 CFR
‘‘except where the Administrator consistent with all applicable federal 51.165(a)(3)) concerning the
determines that such sources do not regulatory requirements or demonstrates requirement that creditable reductions
contribute significantly to PM10 levels that sources of ammonia, as a PM2.5 be calculated based on actual emissions
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which exceed the standard in the area.’’ precursor, do not contribute for offset purposes.
On January 4, 2013, the U.S. Court of significantly to PM2.5 levels that exceed Under section 110(k)(4) of the Act, the
Appeals for the District of Columbia the NAAQS in nonattainment areas in EPA may approve a SIP revision based
Circuit, in Natural Resources Defense the state, consistent with new on a commitment by the state to adopt
Council v. EPA, 706 F.3d 428 (D.C. Cir. provisions at 40 CFR 51.1006(a)(3); specific enforceable measures by a date
2013), issued a decision that remanded 2. UDAQ commits to revise R307– certain, but not later than one year after
the EPA’s 2008 PM2.5 NSR 403–2 consistent with the new the date of approval of the plan revision.

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Document Created: 2018-02-02 12:13:22
Document Modified: 2018-02-02 12:13:22
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Proposed Rules
Action		Proposed rule.
Dates		Written comments must be received on or before November 30, 2016.
Contact		Kevin Leone, Air Program, EPA, Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6227, [email protected]
FR Citation		81 FR 75361
CFR Associated		Environmental Protection; Air Pollution Control; Carbon Monoxide; Intergovernmental Relations; Incorporation by Reference; Lead; Nitrogen Dioxide; Ozone; Particulate Matter; Reporting and Recordkeeping Requirements; Sulfur Oxides and Volatile Organization Compounds