[Federal Register Volume 76, Number 141 (Friday, July 22, 2011)]
[Rules and Regulations]
[Pages 43898-43906]
[FR Doc No: 2011-18416]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2010-0302; FRL-9442-2]

Approval and Promulgation of State Implementation Plan Revisions;
Infrastructure Requirements for the 1997 8-Hour Ozone National Ambient
Air Quality Standard; Utah

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving and conditionally approving the State
Implementation Plan (SIP) submission from the State of Utah to
demonstrate that the SIP meets the requirements of sections 110(a)(1)
and (2) of the Clean Air Act (CAA) for the National Ambient Air Quality
Standard (NAAQS) promulgated for ozone on July 18, 1997. Section
110(a)(1) of the CAA requires that each state, after a new or revised
NAAQS is promulgated, review their SIPs to ensure that they meet the
requirements of the ``infrastructure elements'' of section 110(a)(2).
The State of Utah submitted two certifications, dated December 3, 2007,
and December 21, 2009, that its SIP met these requirements for the 1997
ozone NAAQS. The December 3, 2007 certification was determined to be
complete on March 27, 2008 (73 FR 16205).

DATES: Effective Date: This final rule is effective August 22, 2011.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R08-OAR-2010-0302. 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: Kathy Dolan, Air Program, U.S.
Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595
Wynkoop Street, Denver, Colorado 80202-1129,<PHONE_NUMBER>,
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Definitions

    For the purpose of this document, we are giving meaning to certain
words or initials as follows:
    (i) The words or initials Act or CAA mean or refer to the Clean Air
Act, unless the context indicates otherwise.
    (ii) The words EPA, we, us or our mean or refer to the United
States Environmental Protection Agency.
    (iii) The initials SIP mean or refer to State Implementation Plan.

Table of Contents

I. Background
II. Response to Comments
III. Final Action
IV. Statutory and Executive Order Reviews

I. Background

    On July 18, 1997, EPA promulgated new NAAQS for ozone based on 8-
hour average concentrations. The 8-hour averaging period replaced the
previous 1-hour averaging period, and the level of the NAAQS was
changed from 0.12 parts per million (ppm) to 0.08 ppm (62 FR 38856). By
statute, SIPs meeting the requirements of sections 110(a)(1) and (2)
are to be submitted by states within three years after promulgation of
a new or revised standard. Section 110(a)(2) provides basic
requirements for SIPs, including emissions inventories, monitoring, and
modeling, to assure attainment and maintenance of the standards. These
requirements are set out in several ``infrastructure elements,'' listed
in section 110(a)(2).
    Section 110(a) imposes the obligation upon states to make a SIP
submission to EPA for a new or revised NAAQS, and the contents of that
submission may vary depending upon the facts and circumstances. In
particular, the data and analytical tools available at the time a state
develops and submits its SIP for a new or revised NAAQS affects the
content of the submission. The contents of such SIP submissions may
also vary depending upon what provisions a state's existing SIP already
contains. In the case of the 1997 ozone NAAQS, states typically have
met the basic program elements required in section 110(a)(2) through
earlier SIP submissions in connection with previous NAAQS. In a
guidance issued on October 2, 2007, EPA noted that, to the extent an
existing SIP already meets the section 110(a)(2) requirements, states
need only to certify that fact via a letter to EPA.\1\
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    \1\ Memorandum from William T. Harnett, Director, Air Quality
Policy Division, ``Guidance on SIP Elements Required Under Sections
110(a)(1) and (2) for the 1997 8-Hour Ozone and PM2.5
National Ambient Air Quality Standards'' (Oct. 2, 2007).
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    On March 27, 2008, EPA published a final rule entitled,
``Completeness Findings for Section 110(a) State Implementation Plans
for the 8-hour Ozone NAAQS'' (73 FR 16205). In the rule, EPA made a
finding for each state that it had submitted or had failed to submit a
complete SIP that provided the basic program elements of section
110(a)(2) necessary to implement the 1997 8-hour ozone NAAQS. In
particular, EPA found that Utah had submitted a complete SIP
(``Infrastructure SIP'') to meet these requirements.
    On May 23, 2011, EPA published a notice of proposed rulemaking
(NPR) for the State of Utah (76 FR 29688) to act on the State's
Infrastructure SIP for the 1997 ozone NAAQS. Specifically, in the NPR
EPA proposed approval of Utah's SIP as meeting the requirements of all
section 110(a)(2) elements with respect to the 1997 ozone NAAQS, aside
from elements 110(a)(2)(D)(i), 110(a)(2)(I), and the visibility
protection requirement of element 110(a)(2)(J), on which EPA did not
propose action.\2\
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    \2\ See the NPR (76 FR 29688) for further explanation regarding
the omission of elements 110(a)(2)(D)(i) and 110(a)(2)(I) from the
proposal.
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    In the May 23, 2011 NPR, EPA proposed to conditionally approve
element 110(a)(2)(B) for the 1997 ozone NAAQS. EPA had discovered
certain deficiencies in Utah's monitoring network plan and Utah
formally committed to submitting an adequate annual monitoring plan not
later than one year after the date of this final action to correct
those deficiencies.\3\ In the NPR, EPA also stated that if Utah does
not implement the measures specified in its commitment within one year
after the date of this final action, EPA's conditional approval will
automatically revert to disapproval of the infrastructure SIP for
section 110(a)(2)(B) for the 1997 ozone NAAQS.
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    \3\ The specific measures Utah will take are detailed in the
commitment letter, which may be found in the docket for this action.
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    EPA proposed to approve element 110(a)(2)(C) for the 1997 ozone
NAAQS in the event that the State clarified (or modified) its December
3, 2007 and December 21, 2009 certifications to ensure consistency with
two rules related to regulation of greenhouse gas (GHG) emissions:
``Prevention of Significant Deterioration and Title V Greenhouse Gas
Tailoring Rule'' (``Tailoring Rule''), 75 FR 31514 (June 3, 2010), and
``Limitation of Approval of Prevention of Significant Deterioration
Provisions Concerning Greenhouse Gas Emitting-Sources in State
Implementation Plans'' (``PSD SIP Narrowing Rule''), 75 FR 82536 (Dec.
30, 2010). In the PSD SIP Narrowing Rule, EPA withdrew its previous
approval of Utah's prevention of significant deterioration (PSD)
program to the extent that it applied PSD permitting to GHG emissions
increases from GHG-emitting sources below thresholds set in the
Tailoring Rule. EPA withdrew its approval on the basis that the State
lacked sufficient resources to issue PSD permits to such sources at the
statutory thresholds in effect in the previously-approved PSD program.
After the PSD SIP Narrowing Rule, the portion of Utah's PSD SIP from
which EPA withdrew its approval had the status of having been submitted
to EPA but not yet acted upon. In its December 3, 2007 and December 21,
2009 certifications, Utah relied on its PSD program as approved at that
date--which was before December 30, 2010, the effective date of the PSD
SIP Narrowing Rule--to satisfy the requirements of infrastructure
element 110(a)(2)(C). Given EPA's basis for the PSD SIP Narrowing Rule,
EPA proposed approval of the Utah Infrastructure SIP for infrastructure
element (C) if either the State clarified (or modified) its
certification to make clear that the State relies only on the portion
of the PSD program that remains approved after the PSD SIP Narrowing
Rule issued on December 30, 2010, and for which the State has
sufficient resources to implement, or the State acted to withdraw from
EPA consideration the remaining portion of its PSD program submission
that would have applied PSD permitting to GHG sources below the
Tailoring Rule thresholds. On June 22, 2011, EPA received a letter from
Utah clarifying that the State relies only on the portion of the PSD
program that remains approved after the PSD SIP

Narrowing Rule issued on December 30, 2010.\4\
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    \4\ Utah's June 22, 2011 clarification letter is available in
the docket for this action.
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    EPA's proposed approval of elements 110(a)(2)(C) and (J) for the
1997 ozone NAAQS was also contingent on the final approval of the
State's August 7, 2008 submittal. The State's PSD program, as
submitted, for the most part incorporates by reference the Federal
program at 40 CFR 52.21. The August 7, 2008 submittal updates the date
of incorporation by reference of the State's PSD program to July 7,
2007, therefore incorporating EPA's phase 2 implementation rule for the
1997 ozone NAAQS (Phase 2 Rule), which includes requirements for PSD
programs to treat nitrogen oxides (NOx) as a precursor for
ozone (72 FR 71612, November 29, 2005). EPA proposed approval of the
August 7, 2008 submittal on January 7, 2009 (74 FR 667), and finalized
approval on June 29, 2011. EPA therefore approves in full elements
110(a)(2)(C) and (J) with this action.

Scope of Infrastructure SIPs

    EPA is currently acting upon SIPs that address the infrastructure
requirements of CAA section 110(a)(1) and (2) for ozone and
PM2.5 NAAQS for various states across the country.
Commenters on EPA's recent proposals for some states raised concerns
about EPA statements that it was not addressing certain substantive
issues in the context of acting on the infrastructure SIP
submissions.\5\ The commenters specifically raised concerns involving
provisions in existing SIPs and with EPA's statements that it would
address two issues separately and not as part of actions on the
infrastructure SIP submissions: (i) Existing provisions related to
excess emissions during periods of start-up, shutdown, or malfunction
at sources, that may be contrary to the CAA and EPA's policies
addressing such excess emissions (``SSM''); and (ii) existing
provisions related to ``director's variance'' or ``director's
discretion'' that purport to permit revisions to SIP approved emissions
limits with limited public process or without requiring further
approval by EPA, that may be contrary to the CAA (``director's
discretion''). EPA notes that there are two other substantive issues
for which EPA likewise stated that it would address the issues
separately: (i) Existing provisions for minor source new source review
programs that may be inconsistent with the requirements of the CAA and
EPA's regulations that pertain to such programs (``minor source new
source review (NSR)''); and (ii) existing provisions for Prevention of
Significant Deterioration programs that may be inconsistent with
current requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR
80,186 (December 31, 2002), as amended by 72 FR 32,526 (June 13, 2007)
(``NSR Reform''). In light of the comments, EPA now believes that its
statements in various proposed actions on infrastructure SIPs with
respect to these four individual issues should be explained in greater
depth with respect to these issues.
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    \5\ See, Comments of Midwest Environmental Defense Center, dated
May 31, 2011. Docket  EPA-R05-OAR-2007-1179 (adverse
comments on proposals for three states in Region 5). EPA notes that
these public comments on another proposal are not relevant to this
rulemaking and do not have to be directly addressed in this
rulemaking. EPA will respond to these comments in the appropriate
rulemaking action to which they apply.
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    EPA intended the statements in the proposals concerning these four
issues merely to be informational, and to provide general notice of the
potential existence of provisions within the existing SIPs of some
states that might require future corrective action. EPA did not want
states, regulated entities, or members of the public to be under the
misconception that the Agency's approval of the infrastructure SIP
submission of a given state should be interpreted as a reapproval of
certain types of provisions that might exist buried in the larger
existing SIP for such state. Thus, for example, EPA explicitly noted
that the Agency believes that some states may have existing SIP
approved SSM provisions that are contrary to the CAA and EPA policy,
but that ``in this rulemaking, EPA is not proposing to approve or
disapprove any existing state provisions with regard to excess
emissions during SSM of operations at facilities.'' EPA further
explained, for informational purposes, that ``EPA plans to address such
State regulations in the future.'' EPA made similar statements, for
similar reasons, with respect to the director's discretion, minor
source NSR, and NSR Reform issues. EPA's objective was to make clear
that approval of an infrastructure SIP for these ozone and
PM2.5 NAAQS should not be construed as explicit or implicit
reapproval of any existing provisions that relate to these four
substantive issues.
    Unfortunately, the commenters and others evidently interpreted
these statements to mean that EPA considered action upon the SSM
provisions and the other three substantive issues to be integral parts
of acting on an infrastructure SIP submission, and therefore that EPA
was merely postponing taking final action on the issue in the context
of the infrastructure SIPs. This was not EPA's intention. To the
contrary, EPA only meant to convey its awareness of the potential for
certain types of deficiencies in existing SIPs, and to prevent any
misunderstanding that it was reapproving any such existing provisions.
EPA's intention was to convey its position that the statute does not
require that infrastructure SIPs address these specific substantive
issues in existing SIPs and that these issues may be dealt with
separately, outside the context of acting on the infrastructure SIP
submission of a state. To be clear, EPA did not mean to imply that it
was not taking a full final agency action on the infrastructure SIP
submission with respect to any substantive issue that EPA considers to
be a required part of acting on such submissions under section 110(k)
or under section 110(c). Given the confusion evidently resulting from
EPA's statements, however, we want to explain more fully the Agency's
reasons for concluding that these four potential substantive issues in
existing SIPs may be addressed separately.
    The requirement for the SIP submissions at issue arises out of CAA
section 110(a)(1). That provision requires that states must make a SIP
submission ``within 3 years (or such shorter period as the
Administrator may prescribe) after the promulgation of a national
primary ambient air quality standard (or any revision thereof)'' and
that these SIPS are to provide for the ``implementation, maintenance,
and enforcement'' of such NAAQS. Section 110(a)(2) includes a list of
specific elements that ``[e]ach such plan'' submission must meet. EPA
has historically referred to these particular submissions that states
must make after the promulgation of a new or revised NAAQS as
``infrastructure SIPs.'' This specific term does not appear in the
statute, but EPA uses the term to distinguish this particular type of
SIP submission designed to address basic structural requirements of a
SIP from other types of SIP submissions designed to address other
different requirements, such as ``nonattainment SIP'' submissions
required to address the nonattainment planning requirements of part D,
``regional haze SIP'' submissions required to address the visibility
protection requirements of CAA section 169A, NSR permitting program
submissions required to address the requirements of part D, and a host
of other specific types of SIP submissions that address other specific
matters.
    Although section 110(a)(1) addresses the timing and general
requirements for these infrastructure SIPs, and section 110(a)(2)
provides more details

concerning the required contents of these infrastructure SIPs, EPA
believes that many of the specific statutory provisions are facially
ambiguous. In particular, the list of required elements provided in
section 110(a)(2) contains a wide variety of disparate provisions, some
of which pertain to required legal authority, some of which pertain to
required substantive provisions, and some of which pertain to
requirements for both authority and substantive provisions.\6\ Some of
the elements of section 110(a)(2) are relatively straightforward, but
others clearly require interpretation by EPA through rulemaking, or
recommendations through guidance, in order to give specific meaning for
a particular NAAQS.\7\
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    \6\ For example, section 110(a)(2)(E) provides that states must
provide assurances that they have adequate legal authority under
state and local law to carry out the SIP; section 110(a)(2)(C)
provides that states must have a substantive program to address
certain sources as required by part C of the CAA; section
110(a)(2)(G) provides that states must have both legal authority to
address emergencies and substantive contingency plans in the event
of such an emergency.
    \7\ For example, section 110(a)(2)(D)(i) requires EPA to be sure
that each SIP contains adequate provisions to prevent significant
contribution to nonattainment of the NAAQS in other states. This
provision contains numerous terms that require substantial
rulemaking by EPA in order to determine such basic points as what
constitutes significant contribution. See, e.g., ``Rule To Reduce
Interstate Transport of Fine Particulate Matter and Ozone (Clean Air
Interstate Rule); Revisions to Acid Rain Program; Revisions to the
NOX SIP Call; Final Rule,'' 70 FR 25,162 (May 12,
2005)(defining, among other things, the phrase ``contribute
significantly to nonattainment'').
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    Notwithstanding that section 110(a)(2) states that ``each'' SIP
submission must meet the list of requirements therein, EPA has long
noted that this literal reading of the statute is internally
inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment
SIP requirements that could not be met on the schedule provided for
these SIP submissions in section 110(a)(1).\8\ This illustrates that
EPA must determine which provisions of section 110(a)(2) may be
applicable for a given infrastructure SIP submission. Similarly, EPA
has previously decided that it could take action on different parts of
the larger, general ``infrastructure SIP'' for a given NAAQS without
concurrent action on all subsections, such as section 110(a)(2)(D)(i),
because the Agency bifurcated the action on these latter ``interstate
transport'' provisions within section 110(a)(2) and worked with states
to address each of the four prongs of section 110(a)(2)(D)(i) with
substantive administrative actions proceeding on different tracks with
different schedules.\9\ This illustrates that EPA may conclude that
subdividing the applicable requirements of section 110(a)(2) into
separate SIP actions may sometimes be appropriate for a given NAAQS
where a specific substantive action is necessitated, beyond a mere
submission addressing basic structural aspects of the SIP. Finally, EPA
notes that not every element of section 110(a)(2) would be relevant, or
as relevant, or relevant in the same way, for each new or revised NAAQS
and the attendant infrastructure SIP submission for that NAAQS. For
example, the monitoring requirements that might be necessary for
purposes of section 110(a)(2)(B) for one NAAQS could be very different
than what might be necessary for a different pollutant. Thus, the
content of an infrastructure SIP submission to meet this element from a
state might be very different for an entirely new NAAQS, versus a minor
revision to an existing NAAQS.\10\
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    \8\ See, e.g., Id., 70 FR 25,162, at 63-65 (May 12, 2005)
(explaining relationship between timing requirement of section
110(a)(2)(D) versus section 110(a)(2)(I)).
    \9\ EPA issued separate guidance to states with respect to SIP
submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and
1997 PM2.5 NAAQS. See, ``Guidance for State
Implementation Plan (SIP) Submissions to Meet Current Outstanding
Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and
PM2.5 National Ambient Air Quality Standards,'' from
William T. Harnett, Director Air Quality Policy Division OAQPS, to
Regional Air Division Director, Regions I-X, dated August 15, 2006.
    \10\ For example, implementation of the 1997 PM2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of that new indicator species for the new NAAQS.
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    Similarly, EPA notes that other types of SIP submissions required
under the statute also must meet the requirements of section 110(a)(2),
and this also demonstrates the need to identify the applicable elements
for other SIP submissions. For example, nonattainment SIPs required by
part D likewise have to meet the relevant subsections of section
110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear
that nonattainment SIPs would not need to meet the portion of section
110(a)(2)(C) that pertains to part C, i.e., the PSD requirement
applicable in attainment areas. Nonattainment SIPs required by part D
also would not need to address the requirements of section 110(a)(2)(G)
with respect to emergency episodes, as such requirements would not be
limited to nonattainment areas. As this example illustrates, each type
of SIP submission may implicate some subsections of section 110(a)(2)
and not others.
    Given the potential for ambiguity of the statutory language of
section 110(a)(1) and (2), EPA believes that it is appropriate for EPA
to interpret that language in the context of acting on the
infrastructure SIPs for a given NAAQS. Because of the inherent
ambiguity of the list of requirements in section 110(a)(2), EPA has
adopted an approach in which it reviews infrastructure SIPs against
this list of elements ``as applicable.'' In other words, EPA assumes
that Congress could not have intended that each and every SIP
submission, regardless of the purpose of the submission or the NAAQS in
question, would meet each of the requirements, or meet each of them in
the same way. EPA elected to use guidance to make recommendations for
infrastructure SIPs for these NAAQS.
    On October 2, 2007, EPA issued guidance making recommendations for
the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS
and the 1997 PM2.5 NAAQS.\11\ Within this guidance document,
EPA described the duty of states to make these submissions to meet what
the Agency characterized as the ``infrastructure'' elements for SIPs,
which it further described as the ``basic SIP requirements, including
emissions inventories, monitoring, and modeling to assure attainment
and maintenance of the standards.'' \12\ As further identification of
these basic structural SIP requirements, ``attachment A'' to the
guidance document included a short description of the various elements
of section 110(a)(2) and additional information about the types of
issues that EPA considered germane in the context of such
infrastructure SIPs. EPA emphasized that the description of the basic
requirements listed on attachment A was not intended ``to constitute an
interpretation of'' the requirements, and was merely a ``brief
description of the required elements.'' \13\ EPA also stated its belief
that with one exception, these requirements were ``relatively self
explanatory, and past experience with SIPs for other NAAQS should
enable States to meet these requirements with

assistance from EPA Regions.'' \14\ For the one exception to that
general assumption, however, i.e., how states should proceed with
respect to the requirements of section 110(a)(2)(G) for the 1997
PM2.5 NAAQS, EPA gave much more specific recommendations.
But for other infrastructure SIP submittals, and for certain elements
of the submittals for the 1997 PM2.5 NAAQS, EPA assumed that
each state would work with its corresponding EPA regional office to
refine the scope of a state's submittal based on an assessment of how
the requirements of section 110(a)(2) should reasonably apply to the
basic structure of the SIP for the NAAQS in question.
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    \11\ See, ``Guidance on SIP Elements Required Under Section
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5
National Ambient Air Quality Standards,'' from William T. Harnett,
Director Air Quality Policy Division, to Air Division Directors,
Regions I-X, dated October 2, 2007 (the ``2007 Guidance''). EPA
issued comparable guidance for the 2006 PM2.5 NAAQS
entitled ``Guidance on SIP Elements Required Under Sections
110(a)(1) and (2) for the 2006 24-Hour Fine Particle
(PM2.5) National Ambient Air Quality Standards (NAAQS),''
from William T, Harnett, Director Air Quality Policy Division, to
Regional Air Division Directors, Regions I-X, dated September 25,
2009 (the ``2009 Guidance'').
    \12\ Id., at page 2.
    \13\ Id., at attachment A, page 1.
    \14\ Id., at page 4. In retrospect, the concerns raised by
commenters with respect to EPA's approach to some substantive issues
indicates that the statute is not so ``self explanatory,'' and
indeed is sufficiently ambiguous that EPA needs to interpret it in
order to explain why these substantive issues do not need to be
addressed in the context of infrastructure SIPs and may be addressed
at other times and by other means.
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    Significantly, the 2007 Guidance did not explicitly refer to the
SSM, director's discretion, minor source NSR, or NSR Reform issues as
among specific substantive issues EPA expected states to address in the
context of the infrastructure SIPs, nor did EPA give any more specific
recommendations with respect to how states might address such issues
even if they elected to do so. The SSM and director's discretion issues
implicate section 110(a)(2)(A), and the minor source NSR and NSR Reform
issues implicate section 110(a)(2)(C). In the 2007 Guidance, however,
EPA did not indicate to states that it intended to interpret these
provisions as requiring a substantive submission to address these
specific issues in the context of the infrastructure SIPs for these
NAAQS. Instead, EPA's 2007 Guidance merely indicated its belief that
the states should make submissions in which they established that they
have the basic SIP structure necessary to implement, maintain, and
enforce the NAAQS. EPA believes that states can establish that they
have the basic SIP structure, notwithstanding that there may be
potential deficiencies within the existing SIP. Thus, EPA's proposals
mentioned these issues not because the Agency considers them issues
that must be addressed in the context of an infrastructure SIP as
required by section 110(a)(1) and (2), but rather because EPA wanted to
be clear that it considers these potential existing SIP problems as
separate from the pending infrastructure SIP actions.
    EPA believes that this approach to the infrastructure SIP
requirement is reasonable, because it would not be feasible to read
section 110(a)(1) and (2) to require a top to bottom, stem to stern,
review of each and every provision of an existing SIP merely for
purposes of assuring that the state in question has the basic
structural elements for a functioning SIP for a new or revised NAAQS.
Because SIPs have grown by accretion over the decades as statutory and
regulatory requirements under the CAA have evolved, they may include
some outmoded provisions and historical artifacts that, while not fully
up to date, nevertheless may not pose a significant problem for the
purposes of ``implementation, maintenance, and enforcement'' of a new
or revised NAAQS when EPA considers the overall effectiveness of the
SIP. To the contrary, EPA believes that a better approach is for EPA to
determine which specific SIP elements from section 110(a)(2) are
applicable to an infrastructure SIP for a given NAAQS, and to focus
attention on those elements that are most likely to need a specific SIP
revision in light of the new or revised NAAQS. Thus, for example, EPA's
2007 Guidance specifically directed states to focus on the requirements
of section 110(a)(2)(G) for the 1997 PM2.5 NAAQS because of
the absence of underlying EPA regulations for emergency episodes for
this NAAQS and an anticipated absence of relevant provisions in
existing SIPs.
    Finally, EPA believes that its approach is a reasonable reading of
section 110(a)(1) and (2) because the statute provides other avenues
and mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow the Agency to take appropriate
tailored action, depending upon the nature and severity of the alleged
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP
call'' whenever the Agency determines that a SIP is substantially
inadequate to attain or maintain the NAAQS, to mitigate interstate
transport, or otherwise to comply with the CAA.\15\ Section 110(k)(6)
authorizes EPA to correct errors in past actions, such as past
approvals of SIP submissions.\16\ Significantly, EPA's determination
that an action on the infrastructure SIP is not the appropriate time
and place to address all potential existing SIP problems does not
preclude the Agency's subsequent reliance on provisions in section
110(a)(2) as part of the basis for action at a later time. For example,
although it may not be appropriate to require a state to eliminate all
existing inappropriate director's discretion provisions in the course
of acting on the infrastructure SIP, EPA believes that section
110(a)(2)(A) may be among the statutory bases that the Agency cites in
the course of addressing the issue in a subsequent action.\17\
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    \15\ EPA has recently issued a SIP call to rectify a specific
SIP deficiency related to the SSM issue. See, ``Finding of
Substantial Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revision,'' 74 FR 21,639 (April 18, 2011).
    \16\ EPA has recently utilized this authority to correct errors
in past actions on SIP submissions related to PSD programs. See,
``Limitation of Approval of Prevention of Significant Deterioration
Provisions Concerning Greenhouse Gas Emitting-Sources in State
Implementation Plans; Final Rule,'' 75 FR 82,536 (Dec. 30, 2010).
EPA has previously used its authority under CAA 110(k)(6) to remove
numerous other SIP provisions that the Agency determined it had
approved in error. See, e.g., 61 FR 38,664 (July 25, 1996) and 62 FR
34,641 (June 27, 1997) (corrections to American Samoa, Arizona,
California, Hawaii, and Nevada SIPs); 69 FR 67,062 (November 16,
2004) (corrections to California SIP); and 74 FR 57,051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
    \17\ EPA has recently disapproved a SIP submission from Colorado
on the grounds that it would have included a director's discretion
provision inconsistent with CAA requirements, including section
110(a)(2)(A). See, e.g., 75 FR 42,342 at 42,344 (July 21,2010)
(proposed disapproval of director's discretion provisions); 76 FR
4,540 (Jan. 26, 2011) (final disapproval of such provisions).
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II. Response to Comments

    EPA received two comment letters on June 22, 2011, one from
WildEarth Guardians (WEG) and the other from Western Resource Advocates
(WRA), both environmental organizations. The WRA comment letter was
written on behalf of both WRA and the organization Utah Physicians for
a Healthy Environment (UPHE). The significant comments made by WRA and
EPA's responses to those comments are given below in Section (A). The
significant comments made by WEG and EPA's responses to those comments
are given below in Section (B).

Section A: WRA Comments and EPA Responses

    Comment No. 1: The commenter stated that the State of Utah must
strike from its regulations ``any provisions allowing `director's
discretion' to change unilaterally EPA-approved SIP-based emission
limits, permitting variances and exempting excess startup, shutdown and
malfunction emissions from compliance and enforcement provisions.'' The
commenter further stated that ``definitive EPA action'' on such
provisions ``cannot come too soon.''
    EPA Response: EPA shares the commenter's concerns that such
provisions can have adverse impacts on air planning and enforcement,
and as a result can have an adverse impact on

protection of public health. As discussed in greater depth in the
Background section, EPA is not addressing startup, shutdown, and
malfunction (SSM), variance, or director's discretion provisions in the
context of this action on 110(a)(2) requirements for the 1997 ozone
NAAQS. As stated in the NPR, EPA intends to address these issues
separately at a later date.
    However, with respect to the commenter's concerns about SSM
provisions, EPA notes that the Agency has already issued a finding of
substantial inadequacy and called for a SIP revision for Utah's
``unavoidable breakdown'' rule (76 FR 21639, Apr. 18, 2011). This
action preceded, was independent of, and was not required for our
action on section 110(a)(2)(A) for the 1997 ozone NAAQS. EPA considers
this an important step towards addressing the issue noted by the
commenter.
    Comment No. 2: The commenter supported EPA efforts to address
issues concerning the monitoring network for ozone in Utah. In
particular, the commenter supported EPA's efforts to encourage the
State to address the monitoring network in the Saint George area,
specifically by completing its ozone saturation study in 2011, using
that study to identify maximum concentration locations, and adjusting
the monitoring network as required by the study. However, the commenter
also urged EPA to require immediate action from the State to ensure
adequate monitoring in the Saint George area, and, if necessary,
immediately implement any controls necessary to bring the area into
compliance with the ozone NAAQS.
    EPA Response: EPA acknowledges the support for our conditional
approval, based on Utah's commitment to make improvements with regard
to monitoring as the commenter described. EPA notes that the State has
committed to doing so within one year, and that with this data the
State and EPA can then evaluate what additional actions may be
necessary based upon better information concerning the ambient air
quality in the area.
    With respect to the 1997 ozone NAAQS, the data collected in
southern Utah have not suggested a potential for ozone levels to
violate that standard. From data collected in Zion National Park (2004-
2010), Saint George (1995-1997), Santa Clara (2008-2010), and Mesquite,
Nevada (33 miles southwest of Saint George and 13 miles from the Utah
border), the highest design value recorded was 79 parts per billion
(ppb) in Zion National Park in 2004-2006. While the current Santa Clara
monitor has not been shown to be sited to measure maximum concentration
monitoring, there is no evidence to suggest a maximum concentration
monitoring site elsewhere would record data in excess of the 1997 ozone
NAAQS. Utah's commitment to ensuring that a monitor is placed at the
maximum concentration site will allow the State and EPA to correctly
assess air quality in the Saint George metropolitan statistical area
(MSA).
    Comment No. 3: The commenter supported EPA's efforts to regulate
greenhouse gases.
    EPA Response: EPA presumes that the commenter's support related to
EPA's efforts to insure that the Utah infrastructure SIP adequately
addresses PSD permitting requirements with respect to greenhouse gases
as discussed in the NPR in accordance with the PSD SIP Narrowing Rule.
As discussed in the background section above, in response to our
proposal, Utah clarified that its infrastructure certification should
not be read to rely on the portion of the PSD program for which the PSD
SIP Narrowing Rule withdrew approval. Therefore, EPA has concluded that
the current EPA approved Utah SIP is consistent with section
110(a)(2)(C) for purposes of greenhouse gases.
    Comment No. 4: The commenter supported EPA's efforts to require
ozone monitoring in Utah's Uinta Basin. However, the commenter urged
EPA to use existing ozone monitoring data, which the commenter claimed
``plainly show that air quality in the basin is not in compliance with
the ozone standard,'' to designate the Uinta Basin as nonattainment for
ozone.\18\ The commenter also urged EPA to require Utah to install
monitors in Vernal, Utah.
---------------------------------------------------------------------------

    \18\ The comment does not precisely state which existing ozone
monitoring data the commenter refers to. For a discussion of other
monitoring data in the Uinta Basin, see the response to comment 1 in
section B below.
---------------------------------------------------------------------------

    EPA Response: EPA shares the concerns of the commenters with
respect to the monitoring network in Utah. However, in this action EPA
is evaluating the adequacy of the infrastructure SIP of the State with
respect to the 1997 8-hour ozone NAAQS. EPA has specific regulatory
requirements at 40 CFR part 58 that provide requirements for the
ambient air monitoring network required by section 110(a)(2)(B) of the
Act for these NAAQS.
    As discussed in the response to comment 3 in section B below, 40
CFR part 58 does not contain requirements for the State to monitor for
ozone in the Uinta Basin. EPA therefore has no basis in this action to
disapprove the infrastructure SIP due to the absence of an ozone
monitor in Vernal. Nonetheless, EPA notes that both Utah Department of
Environmental Quality (DEQ) and the Ute Indian Tribe of the Uintah and
Ouray Reservation began ozone monitoring in the Uinta Basin in 2011.
These monitors should provide data that can be used to evaluate the
appropriate designation for the Uinta Basin area, once there is
sufficient data. Promulgation of area designations for a NAAQS is
outside the scope of this action, the purpose of which is limited to
review the Utah SIP for compliance with the infrastructure SIP
requirements of section 110(a)(2) for the 1997 8-hour ozone NAAQS.
    Comment No. 5: The commenter stated that ``Utah's PSD program fails
to comply'' with the CAA, and therefore encouraged EPA to disapprove
the State's submission with regards to its PSD program and the
requirements of section 110(a)(2)(J). Specifically, the commenter
asserted that the State's PSD program fails to comply with 40 CFR
70.4(b)(3)(x) with respect to the availability of state judicial review
for persons who participated in the public process required under 40
CFR 70.7(h). In essence, the commenter cited rules and statutes
governing Utah administrative appeal proceedings, including
administrative appeal of PSD permits issued by the State, and argued
(for several reasons) that these provide inadequate opportunity for
members of the public to participate in administrative appeals. The
commenter linked this to the availability of state judicial review of
PSD permits by citing a statutory requirement in Utah's Administrative
Procedure Act requiring parties seeking judicial review to exhaust all
administrative remedies available.
    EPA Response: In this action, EPA is evaluating the State's PSD
permit program under sections 110(a)(2)(C) and (J), and, more
generally, Utah's SIP under section 110(a)(2). The regulatory provision
that the commenter cited, 40 CFR 70.4(b)(3), and the corresponding
statutory provision in section 503(b)(6) of the CAA, apply only to
Title V operating permit programs. In other words, section 503(b)(6)
and 40 CFR 70.4(b)(3) do not apply to PSD permits. Furthermore, Utah's
Title V program is not part of the Utah SIP. Therefore, any potential
deficiency in Utah's Title V program with regards to availability of
state judicial review is outside the scope of this action on the
infrastructure SIP, and the comment gives us no basis to

change our proposed action on section 110(a)(2)(J).\19\
---------------------------------------------------------------------------

    \19\ Although EPA is not assessing the availability of state
judicial review for PSD permits issued by Utah, as the CAA makes no
requirements regarding such availability, EPA also notes that the
comment does not explain, for example, why denial of a petition to
intervene in a state administrative PSD permit proceeding would not
exhaust the petitioner's administrative remedies and therefore make
state judicial review available to the petitioner.
---------------------------------------------------------------------------

    In addition, the comment expressed concerns primarily with a
version of Utah Administrative Code (UAC) section R305-6-202 that the
comment describes as effective July, 2011. The commenter did not
provide a copy of the section showing that it had been adopted. A
proposal to adopt the version of R305-6-202 for which the comment
provides concerns was published in the Utah State Bulletin on March 15,
2011, with a potential effective date of July 1, 2011.\20\ Subsequent
issues of the Utah State Bulletin (through June 15, 2011) have not
provided a notice of effective date for the proposal, a requirement
under section 63G-301-3(12) of the Utah Administrative Procedures Act
for a rule to become effective. Thus, the rule has only been proposed
and not adopted, and any deficiencies there may be within it do not
provide a basis for EPA to change its proposed approval of the current
Utah infrastructure SIP for the 1997 ozone NAAQS for elements
110(a)(2)(C) and (J).
---------------------------------------------------------------------------

    \20\ Similarly, a proposed conforming amendment to UAC section
R307-103 (containing the current administrative procedures for
adjudicative proceedings under the Utah Air Conservation Act) was
published May 1, 2011, but no notice of effective date has been
published. The status of these proposals is confirmed by the Utah
Division of Administrative Rules Web page, Rules Effective Since
Last Codification, available at http://www.rules.utah.gov/publicat/codificationsegue.htm (last visited June 29, 2011).
---------------------------------------------------------------------------

Section B: WEG Comments and EPA Responses

    Comment No. 1: The commenter expressed concern that Utah's SIP
fails ``to attain and maintain the 1997 8-hour ozone NAAQS in the Uinta
Basin.'' The commenter pointed to existing monitoring data from two
monitors in the Uinta Basin over two years and part of a third to argue
that the standard is currently being violated.\21\ The commenter
asserted that EPA cannot find that Utah's SIP meets section
110(a)(2)(1) and (2) requirements unless the EPA addresses the high
ozone levels in the Uinta Basin and uses the resources necessary ``to
attain and maintain the NAAQS.''
---------------------------------------------------------------------------

    \21\ The monitoring data provided by WEG to support this
argument is available in the docket for this action.
---------------------------------------------------------------------------

    EPA Response: EPA disagrees with the commenter's view that the
monitor data asserted by the commenter has a bearing on the action on
the State's infrastructure SIP submission. First, there are currently
no nonattainment areas designated in Utah for the 1997 ozone NAAQS.
Thus, the State is not currently under an obligation to submit a SIP to
meet the requirements of Part D of title I. More importantly, as
explained in the NPR, Part D requirements are outside the scope of this
action. EPA therefore disagrees with the assertion that, as a result of
the cited monitoring data, EPA cannot approve the Utah infrastructure
SIP for the 1997 ozone NAAQS.
    Furthermore, EPA notes that data cited by the commenter is also not
of the type that is needed for making attainment determinations. The
monitoring data referenced by the commenter was collected by industrial
entities at non-regulatory monitors located in Indian country, outside
the jurisdiction of the State of Utah. Furthermore, data collected by
the National Park Service in Dinosaur National Monument (albeit also
using a non-regulatory monitoring method) indicate a preliminary design
value of only 73 ppb for the maximum 3-year average in 2009-2011. This
data represents the ambient level at a geographic location within the
Uinta Basin that is available outside Indian country in Utah. Thus,
there is currently no data from monitoring sites on State jurisdiction
lands in or near the Uinta Basin showing violations of the 1997 ozone
standard.
    Comment No. 2: The commenter claims that the State's commitment
letter to update its ozone monitoring network does not represent a
commitment that justifies conditional approval, as the letter does not
commit to ensuring the actual installation of a monitor in the Saint
George area in accordance with 40 CFR part 58, Appendix D, 4.1(b), and
other requirements. The commenter also states that EPA did not clearly
state the timeline by which a conditional approval reverts to a
disapproval, and requests EPA to clarify this statement.
    EPA Response: EPA disagrees with this comment. The commitment by
the State is appropriately tailored to require the analysis necessary
to determine if a monitor should be installed in the Saint George's
area. The letter acknowledges that the State has not demonstrated that
the existing Santa Clara monitor represents the maximum concentration
site in the Saint George core-based statistical area (CBSA) and that
the Zion monitoring site operated by the National Park Service has
recorded higher ozone values. The letter commits to completing the
current saturation study to determine whether the Santa Clara site
represents the maximum concentration site, and, if the study shows it
necessary, to relocate the monitor in accordance with the requirements
of section 4.1 of Appendix D. Of course, if the study is sufficient to
demonstrate that the existing Santa Clara site meets the requirements
of Appendix D, then no further action is necessary to comply with
Appendix D.
    Appendix D requires that Utah operate an ozone monitor in the Saint
George CBSA, requires that at least one monitor in the Saint George
CBSA be designed to measure maximum concentration, and that the siting
of the Saint George monitor(s) be approved by the EPA Regional
Administrator. EPA's conditional approval requires Utah to comply with
these requirements within 1 year of the publication of the final rule.
If the EPA Regional Administrator has not approved the monitor siting
in the Saint George CBSA within 1 year of publication of the final
rule, the conditional approval of the Utah infrastructure SIP for
section 110(a)(2)(B) for the 1997 ozone NAAQS will automatically revert
to disapproval.
    Comment No. 3: The commenter expressed concern that the ozone
monitoring sites in the Uinta Basin do not fully comply with 40 CFR
part 58, specifically the requirement that ``monitors are sited to
ensure that maximum concentrations are recorded.'' The commenter also
stated that, in order to meet the requirements of section 110(a)(2)(B),
EPA must ensure the Utah SIP requires the State to monitor ozone during
the winter months, particularly in the Uinta Basin. The commenter
asserted that monitoring should continue during the winter months when
the highest ambient levels occur.
    EPA Response: EPA disagrees with the commenter's view that the
current SIP is not approvable under section 110(a)(2)(B), based on the
monitoring concerns raised by the commenter. The existing Utah ozone
monitoring network and plan comply with 40 CFR part 58 requirements
with respect to Uintah, Duchesne and Carbon counties. 40 CFR part 58
does not currently require ozone monitoring in the Uinta Basin, because
ozone monitoring is only required in Metropolitan Statistical Areas
(MSAs). Furthermore, the maximum concentration monitoring requirement
of Appendix D applies specifically to monitoring in MSAs, defined in 40
CFR 58.1 as ``a CBSA associated with at least

one urbanized area of 50,000 population or greater.'' There are no such
MSAs in Uintah, Duchesne, or Carbon counties.
    With respect to the season during which monitoring is currently
required, the required ozone monitoring seasons are provided in
Appendix D, which currently specifies monitoring from May through
September. EPA published a proposed revision to the ozone monitoring
season for Utah on July 16, 2009 (74 FR 34525). EPA then published more
recent data from Utah, Colorado and Kansas relevant to that proposal in
a Notice of Data Availability on November 10, 2010 (75 FR 60936) and
solicited comment on the applicability of that data to the required
monitoring season at that time. If EPA finalizes the proposed revisions
to the ozone monitoring season for Utah, the monitoring season will be
extended and EPA anticipates that this would help to address the
underlying concern of the commenters. At this point, however, Utah
complies with the existing monitoring season requirements of Appendix
D.
    Comment No. 4: The commenter states that EPA cannot approve Utah's
SIP as meeting CAA section 110(a)(2)(L) requirements. Citing 42 U.S.C.
section 7661a(b)(3)(B)(v) and 40 CFR 70.9(b)(2)(iv), the commenter
argues that Utah's Title V program does not increase permit fees each
year in accordance with the Consumer Price Index as required.
    EPA Response: EPA disagrees with this comment. As stated in the
text of the section, 110(a)(2)(L) is no longer applicable to Title V
operating permit programs after approval of such programs. As noted in
the NPR, the Administrator's final approval of Utah's Title V operating
permit program, including the Title V fee program, became effective on
July 10, 1995 (60 FR 30192). Therefore, EPA concludes that the Utah
infrastructure SIP for the 1997 ozone NAAQS meets the requirements of
section 110(a)(2)(L) with respect to the Title V program.

III. Final Action

    In this action, EPA is approving in full the following section
110(a)(2) infrastructure elements for Utah for the 1997 ozone NAAQS:
(A), (C), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). EPA is
conditionally approving section 110(a)(2)(B) for the 1997 ozone NAAQS,
and will fully approve this element if Utah takes the measures detailed
in the State's May 12, 2011 commitment letter within one year after the
date of this final action. If, however, Utah does not implement the
measures specified in its commitment within one year after the date of
this action, EPA's conditional approval will automatically revert to
disapproval of the infrastructure SIP for section 110(a)(2)(B) for the
1997 ozone NAAQS.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations (42 U.S.C. 7410(k), 40 CFR 52.02(a)). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves some state law as meeting Federal requirements
and disapproves other state law because it does not meet Federal
requirements; this action does not impose additional requirements
beyond those imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 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 EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have Tribal implications as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the
SIP is not approved to apply in Indian country located in the State,
and EPA notes that it will not impose substantial direct costs on
Tribal governments or preempt Tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by September 20, 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.

    Dated: June 30, 2011.
James B. Martin,
Regional Administrator, Region 8.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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

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

Subpart TT--Utah

0
2. Section 52.2355 is added to read as follows:

Sec.  52.2355  Section 110(a)(2) infrastructure requirements.

    On December 3, 2007 Jon L. Huntsman, Jr., Governor, State of Utah,
submitted a certification letter which provides the State of Utah's SIP
provisions which meet the requirements of CAA Section 110(a)(1) and (2)
relevant to the 1997 Ozone NAAQS. On December 21, 2009 M. Cheryl
Heying, Director, Utah Division of Air Quality, Department of
Environmental Quality for the State of Utah, submitted supporting
documentation which provides the State of Utah's SIP provisions which
meet the requirements of CAA Section 110(a)(1) and (2) relevant to the
1997 Ozone NAAQS.

[FR Doc. 2011-18416 Filed 7-21-11; 8:45 am]
BILLING CODE 6560-50-P