[Federal Register Volume 79, Number 25 (Thursday, February 6, 2014)]
[Rules and Regulations]
[Pages 7070-7072]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-02083]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2012-0300; FRL-9903-27-Region 8]
Approval and Promulgation of State Implementation Plans; Utah:
Prevention of Significant Deterioration; Greenhouse Gas Permitting
Authority and Tailoring Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is partially
approving and partially disapproving revisions to the Utah State
Implementation Plan (SIP) relating to regulation of Greenhouse Gases
(GHGs) under Utah's Prevention of Significant Deterioration (PSD)
program and other SIP provisions. These revisions were submitted to EPA
on April 14, 2011 by the Governor. The GHG-related SIP revisions are
designed to align Utah's regulations with the GHG emission thresholds
established in EPA's ``PSD and Title V Greenhouse Gas Tailoring Final
Rule,'' which EPA issued by notice dated June 3, 2010. In today's
action, EPA is approving the GHG (as it relates to the PSD program)
revisions because the Agency has determined that this SIP revision,
which is already adopted by Utah as a final effective rule, is in
accordance with the Clean Air Act (CAA or Act) and EPA regulations
regarding PSD permitting for GHGs.
DATES: This final rule is effective March 10, 2014.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R08-OAR-2012-0300. 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, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop
St., 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: Jody Ostendorf, Air Program, Mailcode
8P-AR, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop
St., Denver, Colorado 80202-1129, (303) 312-7814,
[email protected].
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' or
``our'' refer to EPA.
Table of Contents
I. Background for Our Final Action
II. What final action is EPA taking?
III. Statutory and Executive Order Reviews
I. Background for Our Final Action
The background for today's final rule and EPA's national actions
pertaining to GHGs is discussed in detail in our September 5, 2013
proposal (see 78 FR 54602). The comment period was open for 21 days and
we received no written comments. However, we did receive a phone call
of clarification from the State of Utah, which is explained below and
documented in a Memo to the Docket dated September 30, 2013.
II. What final action is EPA taking?
Utah has adopted and submitted regulations that are substantively
similar to the federal requirements for the permitting of GHG-emitting
sources subject to PSD. As presented in our proposed notice, we
conclude that the revisions are consistent with the requirements of 40
CFR 51.166, in particular the requirements set out in EPA's final GHG
Tailoring Rule, and that the revisions should be approved into Utah's
SIP.
R307-401-9 (Small Source Exemption), was revised by the State to
exclude sources from the requirement to obtain an approval order if
their GHG emissions are below the thresholds established by EPA, and
adopted into the State rules (R307-401-9(5)). Therefore,
preconstruction permits for GHGs are only required under the PSD
permitting program, thus exempting minor sources from GHG permitting.
We are approving the rule amendment as submitted by the State and this
revision.
R307-405-3 (Definitions), was also revised by the State to amend
the definition of ``subject to regulation'' to include ``greenhouse
gases (GHGs)'' as defined in 40 CFR 86.1818-12(a). R307-405-3 was
modified to establish thresholds for permitting of GHGs under the PSD
program. Definitions for the terms ``GHGs'', ``emissions increase'' and
``tpy CO2 equivalent emissions (CO2e)'', were
added to this rule. Applicability thresholds for several different
types of permitting scenarios were also added. Therefore, we are
approving the state's additions to R307-405-3(9) as they are consistent
with the federal rule provisions in 40 CFR 51.166(b)(48).
Our final review determines that there are eight provisions in the
R307-405-3 in the State submittal that are identical in rule number and
language to the definitions we approved in our July 15, 2011 approval
(76 FR 41712) and we are approving these definitions as resubmitted.
These provisions include: R307-405-3(1)(adopting by reference the
definitions in 40 CFR 52.21(b) with exceptions as noted in the rules);
R307-405-3(2)(c)(definition of ``Reviewing Authority''); R307-405-
3(2)(d)(definition of ``Administrator''); R307-405-3(2)(e)(definitions
or portions of definitions vacated by the DC Circuit Court of Appeals
on March 17, 2006); R307-405-3(3)(definition of ``Air Quality Related
Values''); R307-405-3(4)(definition of ``Heat Input''); R307-405-
3(7)(definition of ``Good Engineering Practice''); and R307-405-
3(8)(definition of ``Dispersion Technique'').
We proposed to approve R307-405-3(2)(e) and indicated in our
proposal that this is a new rule that is not currently in the SIP. The
rule explains that ``certain definitions or portions of definitions
that apply to the equipment repair and replacement provisions are not
incorporated into the SIP because these provisions were vacated by the
DC Circuit Court of Appeals.'' Upon further research we found that we
previously approved this rule in our final action on July 15, 2011 (76
FR 41712). Therefore, we are reapproving the resubmittal of this
provision.
Additionally, in our proposed action we indicated there is a
definition that had a new rule number, and upon further research we
found that we had previously approved the definition with that rule
number in our July 15, 2011
[[Page 7071]]
approval, R307-405-3(3)(definition of ``Air Quality Related Values'').
Therefore, we are reapproving the resubmittal of this provision.
We are not acting on four provisions in R307-405-3 because we took
final action on these provisions on October 25, 2013 (78 FR 63883).
Specifically, these provisions include: R307-405-3(2)(a)(definitions of
``major source baseline area'' and ``minor source baseline area'');
R307-405-3(b)(definition of ``baseline area'')' R307-403-
3(f)(definition of ``regulated NSR pollutant'').
We are not acting on rule provisions related to the Title V
program. There are two specific definitions we are not acting on: R307-
405-3(5)(definition of ``Title V Permit'') and R307-405-3(6)(definition
of ``Title V Operating Permit Program''). The State also submitted
R307-415-3 (all the definitions for the Operating Permit Program). We
are not acting on these definitions and rule in this notice because
approval of the Title V program revisions is handled separately and
Title V is not part of the SIP.
Additionally, consistent with our June 12, 2013 proposal (78 FR
35181), we are disapproving the State's submittal of R307-401-7
(Permit: New and Modified Sources, Public Notice), which was effective
in the Utah Administrative Code on December 1, 2010.\1\
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\1\ As we explained in our June 12, 2013 notice of proposed
rulemaking, R307-401-7 revised Utah's public notice procedures to
allow for a 10-day public comment period for an approval or
disapproval order issued under R307-401-8. The rule allows for the
public comment period to be increased to 30 days under certain
conditions. We note that the public comment period for an approval
or disapproval order currently in Utah's federally approved SIP is
30 days. (See R307-1-3.1.3) Federal regulations for Public
Availability of Information found at 40 CFR 51.161(b)(2) require at
a minimum a 30-day public comment period for the permitting of a
source, including minor source permits. In addition, the 30-day
comment period is important to allow adequate opportunity for
comment by other affected states, federal agencies, and the public.
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Also consistent with our June 2013 proposal we are partially
approving and partially disapproving R307-401-9 (Permit: New and
Modified Sources, Small Source Exemption). We are approving R307-401-
9(5), which excludes sources whose GHG emission are below established
EPA thresholds for GHG from the requirement to obtain an Approval
Order. However, we are disapproving paragraph (b) and the portions of
paragraph (c) that reference paragraph (b). We are disapproving R307-
401-9(b) and the phrase ``or (b)'' in paragraph (c) because EPA lacks
authority in an action on a SIP revision under CAA section 110 to
approve provisions addressing hazardous air pollutants. Thus, we are
disapproving these specific provisions.
Finally, we proposed to disapprove R307-405-3(2)(a)(i), consistent
with our final action on July 15, 2011 (76 FR 41712), because it
defines ``Major Source Baseline Date'' in a manner inconsistent with
the federal definition. However, as the State explained to us in a
phone call,\2\ Utah removed the Major Source Baseline Date in a
subsequent March 19, 2012 SIP submittal. In our October 25, 2013 final
action (78 FR 63883) on that submittal, we incorporated into the SIP
the required definition for State programs at 40 CFR 51.166(b)(14).
Therefore, we are not taking action on the State's definition of Major
Source Baseline Date in this final action.
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\2\ Information regarding the phone conversation with the State
appears in the Docket in the Memo dated September 30, 2013.
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III. 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
final action merely approves some state law as meeting federal
requirements and disapproves other state law because it does not meet
federal requirements; this final action does not impose additional
requirements beyond those imposed by state law. For that reason, this
final 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 (Public Law 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 April 7, 2014. 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, Incorporation by
reference, Intergovernmental relations,
[[Page 7072]]
Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: November 7, 2013.
Shaun L. McGrath,
Regional Administrator, Region 8.
For the reasons set forth above, 40 CFR part 52 is amended as
follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart TT--[AMENDED]
0
2. Amend Sec. 52.2320 by adding paragraph (c)(76) to read as follows:
Sec. 52.2320 Identification of plan.
* * * * *
(c) * * *
(76) On April 14, 2011 the State of Utah submitted revisions to its
State Implementation Plan (SIP) that contained revised rules, submitted
in their entirety, pertaining to regulation of Greenhouse Gases (GHGs)
under the State's Prevention of Significant Deterioration (PSD)
program.
(i) Incorporation by reference.
(A) Title R307 of the Utah Administrative Code (UAC), Environmental
Quality, Air Quality, R307-401, Permit: New and Modified Sources, R307-
401-9, Small Source Exemption, (5); and R307-405, Permits: Major
Sources in Attainment or Unclassified Areas (PSD), R307-405-3,
Definitions, except (2)(a), (b), (f), (5), and (6); effective January
1, 2011, as published in the Utah State Bulletin on September 15, 2010
and December 15, 2010.
[FR Doc. 2014-02083 Filed 2-5-14; 8:45 am]
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