[Federal Register Volume 78, Number 90 (Thursday, May 9, 2013)]
[Proposed Rules]
[Pages 27165-27168]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-10934]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2012-0746; FRL-9810-9]
Approval and Promulgation of Implementation Plans; Utah;
Revisions to Utah Rule R307-107; General Requirements; Breakdowns
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to approve changes to Utah's rule R307-107,
which pertains to source emissions during breakdowns. On April 18,
2011, EPA finalized a rulemaking which found that the Utah State
Implementation Plan
[[Page 27166]]
(SIP) was substantially inadequate to attain or maintain the national
ambient air quality standards (NAAQS) or to otherwise comply with the
requirements of the Clean Air Act (CAA) because it included rule R307-
107. Concurrent with this finding, EPA issued a SIP call that required
the State to revise its SIP by either removing R307-107 or correcting
its deficiencies, and to submit the revised SIP to EPA by November 18,
2012. On August 16, 2012, the State submitted to EPA revisions to R307-
107. EPA is proposing that these revisions correct the rule's
deficiencies and, therefore, satisfy EPA's April 18, 2011 SIP call. If
EPA finalizes its proposed approval, all sanctions clocks and the clock
for EPA to promulgate a federal implementation plan (FIP) will end.
DATES: Comments must be received on or before June 10, 2013.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2012-0746, by one of the following methods:
http://www.regulations.gov. Follow the on-line
instructions for submitting comments.
Email: [email protected].
Fax: (303) 312-6064 (please alert the individual listed in
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
Mail: Carl Daly, Director, Air Program, U.S. Environmental
Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street,
Denver, Colorado 80202-1129.
Hand Delivery: Carl Daly, Director, Air Program, U.S.
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595
Wynkoop Street, Denver, Colorado 80202-1129. Such deliveries are only
accepted Monday through Friday, 8:00 a.m. to 4:30 p.m., excluding
Federal holidays. Special arrangements should be made for deliveries of
boxed information.
Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-
2012-0746. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an email comment
directly to EPA, without going through www.regulations.gov, your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket visit the EPA Docket Center
homepage at http://www.epa.gov/epahome/dockets.htm. For additional
instructions on submitting comments, go to Section I. General
Information of the SUPPLEMENTARY INFORMATION section of this document.
Docket: All documents in the docket are listed in the
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 either electronically
in www.regulations.gov or in hard copy at the Air Program, U.S.
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, 8:00 a.m. to 4:00 p.m., excluding
Federal holidays.
FOR FURTHER INFORMATION CONTACT: Adam Clark, U.S. Environmental
Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street,
Denver, Colorado 80202-1129, (303) 312-7104, [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. General Information
II. Background
III. Revised Utah Rule R307-107 and EPA Analysis
IV. EPA's Proposed Action
V. Statutory and Executive Order Reviews
Definitions
For the purpose of this document, the following definitions
apply:
i. The words or initials Act or CAA mean or refer to the Clean
Air Act, unless the context indicates otherwise.
ii. The words EPA, we, us or our mean or refer to the United
States Environmental Protection Agency.
iii. The initials FIP mean or refer to federal implementation
plan.
iv. The initials NAAQS mean or refer to National Ambient Air
Quality Standards.
v. The initials NESHAPS mean or refer to National Emission
Standards for Hazardous Air Pollutants.
vi. The initials NSPS mean or refer to New Source Performance
Standards.
vii. The initials SIP mean or refer to state implementation
plan.
viii. The initials SSM mean or refer to startup, shutdown, and
malfunction.
ix. The words State or Utah mean the State of Utah, unless the
context indicates otherwise.
x. The initials UAQB mean or refer to the Utah Air Quality
Board.
xi. The initials UDAQ mean or refer to the Utah Division of Air
Quality, Utah Department of Environmental Quality.
xii. The words 1999 Policy mean or refer to the September 20,
1999 EPA Memorandum signed by Steven A. Herman, Assistant
Administrator for Enforcement and Compliance Assurance, and Robert
Perciasepe, Assistant Administrator for Air and Radiation, titled
``State Implementation Plans: Policy Regarding Excess Emissions
During Malfunctions, Startup, and Shutdown.''
I. General Information
What should I consider as I prepare my comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
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 EPA, mark the outside of the disk or CD-ROM as
CBI and then identify electronically within the disk or CD-ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
2. Tips for Preparing Your Comments.
When submitting comments, remember to:
a. Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date and page number).
[[Page 27167]]
b. 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.
c. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
d. Describe any assumptions and provide any technical information
and/or data that you used.
e. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
f. Provide specific examples to illustrate your concerns, and
suggest alternatives.
g. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
h. Make sure to submit your comments by the comment period deadline
identified.
II. Background
On April 18, 2011, EPA published a final rulemaking in the Federal
Register (76 FR 21639) that found that the Utah SIP was substantially
inadequate to attain or maintain the NAAQS or to otherwise comply with
the requirements of the CAA because it included rule R307-107. In
particular, we explained that R307-107: (1) Did not treat all
exceedances of SIP and permit limits as violations; (2) could have been
interpreted to grant the Utah executive secretary exclusive authority
to decide whether excess emissions constituted a violation; and (3)
improperly applied to Federal technology-based standards such as New
Source Performance Standards (NSPS) and National Emission Standards for
Hazardous Air Pollutants (NESHAPS). We concluded that R307-107
undermined EPA's, Utah's, and citizens' ability to enforce emission
limitations that have been relied on in the SIP to ensure attainment
and maintenance of the NAAQS or meet other CAA requirements. 76 FR
21640.
Accordingly, we issued a SIP call which required the State to
revise its SIP by either removing R307-107 or correcting its
deficiencies, and to submit the revised SIP to us by November 18, 2012.
Id. We also explained that if the State failed to submit a complete SIP
revision by November 18, 2012, or if we disapproved a submitted SIP
revision, clocks would be triggered for mandatory sanctions and for EPA
to promulgate a FIP. Id. at 21640-41.
On June 17, 2011, U.S. Magnesium challenged our SIP call in the
United States Court of Appeals for the 10th Circuit. On August 6, 2012,
the 10th Circuit upheld EPA's SIP call.
On August 16, 2012, the State submitted to EPA revisions to R307-
107 for the purpose of correcting the deficiencies described in the SIP
call.
III. Revised Utah Rule R307-107 and EPA Analysis
A. The Revised Rule
The State substantially revised and simplified R307-107 in response
to our SIP call. The rule now contains three sections--R307-107-1,
``Applicability and Timing,'' R307-107-2, ``Reporting,'' and R307-107-
3, ``Enforcement Discretion.''
R307-107-1 requires the owner or operator of a source to report
breakdowns to the director within 24 hours of the incident (R307-107-
1(1)), to be followed by a detailed written description of the incident
and corrective program within 14 days of the start of the incident
(R307-107-1(2)). Alternative reporting deadlines apply where emissions
are monitored by continuous monitoring systems under R307-170, but even
where these alternative deadlines apply, the reports must still contain
the information required by R307-107-1(2) and R307-107-2.
R307-107-2 requires breakdown incident reports to include the cause
and nature of the event, estimated quantity of emissions, time of
emissions, and other relevant evidence, including evidence that:
1. There was an equipment malfunction beyond the reasonable control
of the owner or operator;
2. The excess emissions could not have been avoided by better
operation, maintenance or improved design of the malfunctioning
component;
3. To the maximum extent practicable, the source maintained and
operated the air pollution control equipment and process equipment in a
manner consistent with good practice for minimizing emissions,
including minimizing any bypass emissions;
4. Any necessary repairs were made as quickly as practicable, using
off-shift labor and overtime as needed and as possible;
5. All practicable steps were taken to minimize the potential
impact of the excess emissions on ambient air quality; and
6. The excess emissions are not part of a recurring pattern that
may have been caused by inadequate operation or maintenance, or
inadequate design of the malfunctioning component.
R307-107-2 also states that the owner or operator has the burden of
proof to demonstrate the above elements.
R307-107-3 states that the director will evaluate, on a case-by-
case basis, the information the owner or operator submits pursuant to
R307-107-1 and 2 ``to determine whether to pursue enforcement action.''
The version of R307-107 that was the subject of our SIP call stated
that ``emissions resulting from unavoidable breakdown will not be
deemed a violation of these regulations.'' This exemption, which was
part of the reason for our SIP call, has been eliminated in the revised
rule. The revised rule does not exempt exceedances of emissions limits
caused by breakdowns.
The version of R307-107 that was the subject of our SIP call
required the source to submit information regarding an unavoidable
breakdown to the executive secretary of Utah's Air Quality Board and
indicated that the information would be used by the executive secretary
to determine ``whether a violation has occurred . . .'' This provision
was another reason for our SIP call because it appeared to give the
executive secretary exclusive authority to determine whether excess
emissions constituted a violation and thus to preclude independent
enforcement action by EPA and citizens when the executive secretary
made a non-violation determination. This problematic language,
indicating that the State would determine whether a violation had
occurred, has been eliminated in the revised rule. Instead, as
expressed in R307-107-3, the director will use the submitted
information to determine whether to pursue an enforcement action. The
director's decision not to pursue an enforcement action does not impact
EPA's or citizens' ability to independently pursue an enforcement
action in response to a given violation.
B. EPA's Analysis
EPA's interpretation is that the CAA requires that all periods of
excess emissions, regardless of cause, be treated as violations and
that automatic exemptions from emissions limits are not appropriate.
This interpretation has been expressed in several documents. Most
relevant to this action are the following: memorandum dated September
28, 1982, from Kathleen M. Bennett, Assistant Administrator for Air,
Noise, and Radiation, entitled, ``Policy on Excess Emissions During
Startup, Shutdown, Maintenance, and Malfunctions'' (the 1982
Memorandum); a clarification to that memorandum from Kathleen M.
Bennett issued on February 15, 1983 (the 1983 Memorandum); and a
memorandum dated September 20, 1999 entitled, ``State Implementation
Plans: Policy Regarding Excess Emissions During
[[Page 27168]]
Malfunctions, Startup, and Shutdown,'' from Steven A. Herman, Assistant
Administrator for Enforcement and Compliance Assurance, and Robert
Perciasepe, Assistant Administrator for Air and Radiation (the 1999
Memorandum).
As explained in these memoranda, because excess emissions might
aggravate air quality so as to prevent attainment and maintenance of
the NAAQS and compliance with other CAA requirements, EPA views all
periods of excess emissions as violations of the applicable emission
limitation. Therefore, EPA will disapprove SIP revisions that
automatically exempt from enforcement excess emissions claimed to
result from an equipment malfunction. In addition, as made explicit in
the 1999 Memorandum, EPA will disapprove SIP revisions that give
discretion to a state director to determine whether an instance of
excess emissions is a violation of an emission limitation, because such
a determination could bar EPA and citizens from enforcing applicable
requirements.
Under EPA's interpretations of the CAA as set forth in the 1982,
1983, and 1999 Memoranda, if a state chooses to address in its SIP
violations that occur as a result of claimed malfunctions, the state
may take two approaches. The first, the ``enforcement discretion''
approach, allows a state director to refrain from taking an enforcement
action for a violation if certain criteria are met. The second, the
``affirmative defense'' approach, allows a source to avoid civil
penalties if it can prove that certain conditions are met. Utah's
revised R307-107 follows the enforcement discretion approach.
We have evaluated Utah's enforcement discretion provisions in
revised R307-107 and find that they are consistent with EPA's
interpretations of the CAA as described in the memoranda above. In
particular, the revised rule contains no automatic exemption from
emission limits, and the criteria specified in R307-107-2 that the
State will consider in deciding whether to pursue an enforcement action
generally parallel the criteria outlined in the 1982 and 1983
Memoranda. In addition, revised R307-107 only addresses the State's
exercise of its enforcement discretion and contains no language that
suggests that a State decision not to pursue an enforcement action for
a particular violation bars EPA or citizens from taking an enforcement
action. Therefore, EPA interprets the rule, consistent with EPA's
interpretations of the CAA, as not barring EPA and citizen enforcement
of violations of applicable requirements when the State declines
enforcement.
IV. EPA's Proposed Action
We are proposing to approve the revisions to rule R307-107 of the
Utah SIP that the State submitted to us on August 16, 2012. We are
proposing that these revisions correct the deficiencies outlined in our
April 18, 2011 SIP call. If we finalize this proposed approval, the
mandatory sanctions clocks described in our SIP call and the clock for
EPA to promulgate a FIP will end.
V. 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, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this proposed action merely approves 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 Clean Air Act; 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.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: April 23, 2013.
Judith Wong,
Acting Regional Administrator, EPA Region 8.
[FR Doc. 2013-10934 Filed 5-8-13; 8:45 am]
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