[Federal Register Volume 75, Number 223 (Friday, November 19, 2010)]
[Proposed Rules]
[Pages 70888-70894]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-29237]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2010-0909; FRL-9228-9]
Finding of Substantial Inadequacy of Implementation Plan; Call
for Utah State Implementation Plan Revision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: Pursuant to sections 110(a)(2)(H) and 110(k)(5) of the Clean
Air Act, EPA is proposing to find that the Utah State Implementation
Plan (SIP) is substantially inadequate to attain or maintain the
national ambient air quality standards or to otherwise comply with the
requirements of the Clean Air Act. Specifically, the SIP includes Utah
rule R307-107, which exempts emissions during unavoidable breakdowns
from compliance with emission limitations. This rule undermines EPA's,
Utah's, and citizens' ability to enforce emission limitations that have
been relied on to ensure attainment or maintenance of the national
ambient air quality standards or meet other Clean Air Act requirements.
If EPA finalizes this proposed finding of substantial inadequacy, Utah
will be required to revise its SIP to correct this deficiency within 12
months of the effective date of our final rule. If EPA finds that Utah
has failed to submit a complete SIP revision as required by a final
rule or if EPA disapproves such a revision, such finding or disapproval
would trigger clocks for mandatory sanctions and an obligation for EPA
to impose a Federal Implementation Plan. EPA is also proposing that if
EPA makes such a finding or disapproval, sanctions would apply
consistent with 40 CFR 52.31, such that the offset sanction would apply
18 months after such finding or disapproval and highway funding
restrictions would apply six months later unless EPA first takes action
to stay the imposition of the sanctions or to stop the sanctions clock
based on the State curing the SIP deficiencies. EPA is also requesting
comment on whether EPA should exercise its discretionary authority
under the Clean Air Act to impose highway funding restrictions in all
areas of the State, not just in nonattainment areas.
DATES: Comments must be received on or before December 20, 2010.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2010-0909, by one of the following methods:
http://www.regulations.gov. Follow the on-line
instructions for submitting comments.
E-mail: [email protected].
Mail: Callie A. Videtich, Director, Air Program,
Environmental Protection Agency, Region 8, Mailcode 8P-AR, 1595 Wynkoop
Street, Denver, Colorado 80202-1129.
Fax: (303) 312-6064 (please alert the individual listed in
FOR FURTHER INFORMATION CONTACT if you are faxing comments).
Hand Delivery: Callie A. Videtich, Director, Air Program,
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 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-
2010-0909. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://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
[[Page 70889]]
protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site is an ``anonymous access'' systems, 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 e-mail comment
directly to EPA, without going through http://www.regulations.gov your
e-mail 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 http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Air Program,
Environmental Protection Agency, 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: Tim Russ, Air Program, Mailcode 8P-AR,
Environmental Protection Agency, Region 8, 1595 Wynkoop Street, Denver,
Colorado 80202-1129, (303) 312-6479, or [email protected].
SUPPLEMENTARY INFORMATION:
Definitions
For the purpose of this document, the following definitions apply:
(i) The word Act or initials 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 NAAQS mean national ambient air quality
standard.
(iv) The initials SIP mean or refer to State Implementation Plan.
(v) The words State or Utah mean the State of Utah, unless the
context indicates otherwise.
Table of Contents
I. General Information
II. Background
III. Why is EPA proposing a SIP call?
A. Deficiencies in R307-107-1
B. Deficiencies in R307-107-2
C. Conclusion
IV. What happens if EPA issues a final SIP call and the State of
Utah does not submit a complete SIP revision that responds to the
SIP call or if EPA disapproves a SIP revision that responds to the
SIP call?
V. Proposed Action
VI. Statutory and Executive Order Reviews
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
http://www.regulations.gov or e-mail. 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).
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 September 20, 1999, Assistant Administrator for Enforcement and
Compliance Assurance, Steven A. Herman, and Assistant Administrator for
Air and Radiation, Robert Perciasepe, issued the EPA's most recent
policy on appropriate State Implementation Plan (SIP) provisions
addressing excess emissions during periods of startup, shutdown and
malfunction (SSM). ``State Implementation Plans: Policy Regarding
Excess Emissions During Malfunctions, Startup and Shutdown'' (1999
Policy). The 1999 Policy indicated that it was expanding on and
clarifying two previous policies issued in 1982 and 1983 by then
Assistant Administrator for Air, Noise and Radiation Kathleen Bennett
(``1982 Policy'' and ``1983 Policy'').
In the 1982 and 1983 Policies, Assistant Administrator Bennett
enunciated the Agency's position that SIPs should not be approved if
they include exemptions for excess emissions during malfunction
events.\1\ These policies reflect the Agency's interpretation that
broad exemptions from compliance with emission limitations during
periods of malfunction prevent a SIP from adequately ensuring
attainment and maintenance of national ambient air quality standards
(NAAQS). For purposes of demonstrating attainment and maintenance,
states rely on assumed compliance with emission limitations. See, e.g.,
Clean Air Act (CAA) sections 110(a)(2)(A) and (C); 40 CFR 51.112; Train
v. NRDC, 421 U.S.
[[Page 70890]]
60, 78-79 (1975). Thus, the 1982 and 1983 Policies indicated that,
because SIPs must provide for attainment and maintenance of the NAAQS,
any SIP provisions addressing malfunctions must be narrowly drawn and
should not provide a blanket exemption from compliance with emission
limitations; all periods during which emissions exceed emission
limitations (``excess emissions'') should constitute violations under
the SIP.
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\1\ As indicated above, the 1982, 1983, and 1999 Policies also
address excess emissions provisions for startup and shutdown events.
However, because our proposed action only addresses a malfunction
provision--Utah's unavoidable breakdown rule--we are not including
any further discussion of the Policies as they relate to startup and
shutdown.
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The 1982 and 1983 Policies stated that EPA could approve SIP
revisions that incorporated an enforcement discretion approach as
described in the Policies. This enforcement discretion approach
envisioned commencement of a proceeding to notify the source of its
violation and a demonstration by the source that the excess emissions,
``though constituting a violation,'' were due to an unavoidable
malfunction. Following the proceeding and consideration of specific
criteria, the state agency would decide whether to pursue an
enforcement action. The 1982 and 1983 Policies also advised that the
state could choose not to include in the SIP any provision on
malfunctions, which reflected the fact that the CAA does not require
states to include in SIPs any form of relief for violations caused by
malfunctions.
EPA understood that some malfunctions are unavoidable: ``Generally,
EPA agrees that the imposition of a penalty for sudden and unavoidable
malfunctions caused by circumstances entirely beyond the control of the
owner and/or operator is not appropriate.'' (1982 and 1983 Policies).
However, EPA was also mindful of its duty under the CAA to protect the
NAAQS:
``The rationale for establishing these emissions as violations,
as opposed to granting automatic exemptions, is that SIPs are
ambient-based standards and any emissions above the allowable may
cause or contribute to violations of the national ambient air
quality standards. Without clear definitions and limitations, these
automatic exemption provisions could effectively shield excess
emissions arising from poor operation and maintenance or design,
thus precluding attainment. Additionally, by establishing an
enforcement discretion approach and by requiring the source to
demonstrate the existence of an unavoidable malfunction on the
source, good maintenance procedures are indirectly encouraged.''
(1982 Policy.) \2\
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\2\ Even prior to the issuance of the 1982 and 1983 Policies, it
was our interpretation that all excess emissions, regardless of
cause, should be treated as violations so as to provide sources with
the incentive to properly design their facilities in the first
instance and to improve their operation and maintenance practices
over time. See, e.g., 42 FR 58171 (November 8, 1977).
The 1999 Policy reiterated EPA's interpretation that all periods of
excess emissions should be considered violations. However, the 1999
Policy reflected our interpretation that a state could include a
narrowly crafted affirmative defense provision in the SIP as an
alternative to an enforcement discretion provision. Under this
approach, a SIP could provide an affirmative defense to an enforcement
action for penalties, but not to an action for injunctive relief. The
Agency explained that because periods of excess emissions could
undermine attainment and maintenance of the NAAQS and protection of
prevention of significant deterioration (PSD) increments, an
affirmative defense to an action for injunctive relief would not be
appropriate.\3\
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\3\ In a 2009 decision, the United States Court of Appeals for
the Tenth Circuit held that the policy was a ``reasonable
interpretation of the Clean Air Act.'' Arizona Public Service
Company v. EPA, 562 F.3d 1116, 1129 (10th Cir. 2009). See also
Michigan Dept. of Environmental Quality v. EPA, 230 F.3d 181 (6th
Cir. 2000).
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We also indicated in the 1999 Policy that we would not approve a
rule that would bar EPA or citizen enforcement based on a state's
decision to exercise its discretion not to pursue an enforcement
action. EPA explained that such a rule would be inconsistent with the
regulatory scheme established in Title I of the CAA.
Finally, the 1999 Policy noted that some SIPs had been approved
that appeared to be in conflict with EPA's SSM policies. The Policy
indicated that EPA Regional Offices should work with the states to
ensure SIPs were consistent with EPA's interpretation of the Act's
requirements.
Since the 1999 Policy was issued, EPA Region VIII has worked with
states within the Region to ensure that their SIPs are consistent with
EPA's interpretation of the Act as set forth in the 1982, 1983, and
1999 Policies.\4\ Shortly after the 1999 Policy was issued, we advised
Utah that its unavoidable breakdown rule was inconsistent with the CAA,
and since that time, we have asked Utah several times to revise the
rule. Among other things, the rule provides that ``emissions resulting
from an unavoidable breakdown will not be deemed a violation * * * ''
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\4\ For example, at our request, the State of Colorado revised
its SIP provisions for SSM. We approved revised provisions in 2006
(71 FR 8958, February 22, 2006) and 2008 (73 FR 45879, August 7,
2008). At our request, the State of Wyoming revised its SIP
provision for malfunctions. We approved the revised provision on
April 16, 2010 (75 FR 19886). At our request, the State of North
Dakota revised its SIP provision for malfunctions and submitted the
revised provision to us on April 6, 2009. That provision is modeled
on the Wyoming provision, and we intend to propose action on it
shortly.
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Some version of the Utah unavoidable breakdown rule has been in the
SIP for many years. In 1980, EPA approved a variation of the current
Utah unavoidable breakdown rule. In the proposed rulemaking preamble,
EPA stated that it could ``not fully approve Regulation 4.7 because it
exempts certain excess emissions from being violations of the Air
Conservation Regulations,'' but then proposed to approve Utah's
malfunction procedures because any exemptions granted by the Utah
Executive Secretary ``are not applicable as a matter of federal law.''
44 FR 28688, 28691 (May 16, 1979). EPA's final approval of the
regulation mirrored this concept. 45 FR 10761, 10763 (February 19,
1980). However, thirty years later, it is not clear how EPA reached the
conclusion that exemptions granted by Utah would not apply as a matter
of federal law or whether a court would honor EPA's interpretation; the
Utah rule itself makes no reference to a reservation of federal
authority. Instead, the rule merely states that information submitted
by a source regarding a breakdown event would be ``used by the
executive secretary in determining whether a violation has occurred
and/or the need of further enforcement action.''
EPA approved a revised version of the rule in 1994 with no preamble
discussion, except to say that the Utah air rules had been renumbered
and new requirements had been added (59 FR 35036, July 8, 1994; 40 CFR
52.2320(c)(25)(i)(A)). The key aspects of the unavoidable breakdown
rule remained the same.
Subsequently, Utah again re-numbered its entire SIP regulations,
and EPA approved the re-numbered regulations, including the re-numbered
unavoidable breakdown rule, to conform the federally-approved SIP to
the numbering of Utah's regulations. (70 FR 59681 (October 13, 2005).)
EPA did not consider the substance of the unavoidable breakdown rule in
that action. Instead, EPA indicated that it was only approving the
renumbering and that attempts to address problems in the rules were
ongoing:
``By this action, EPA has reviewed the Utah Department of Air
Quality's (UDAQ) SIP submittals and found that these SIP submittals
only renumber and restructure UDAQ's rules. EPA has not reviewed the
substance of these rules as part of this action; EPA approved these
state rules into the SIP in previous rulemakings. The EPA is now
merely approving the renumbering system submitted by the State. The
current version of UDAQ's rules does not contain substantive changes
from the prior codification that we
[[Page 70891]]
approved into the SIP. EPA acknowledges that there are ongoing
discussions with Utah to address EPA's concerns with some rule
language that EPA previously approved into the Utah SIP. In an April
18, 2002 letter from Richard Sprott, Director of Utah's Division of
Air Quality, to Richard Long, Director of the Air and Radiation
Program in EPA Region 8, UDAQ committed to work with us to address
our concerns with the Utah SIP. Because the SIP submittals only
restructure and renumber the existing SIP-approved regulations,
contain no substantive changes, and UDAQ has committed to address
EPA's concerns, we believe it is appropriate to propose to approve
the submittal. Approving the restructured and renumbered Utah rules
into the SIP will also facilitate future discussions on the rules.
EPA will continue to require the State to correct any rule
deficiencies despite EPA's approval of this recodification.'' (70 FR
at 59683)
Over the years Utah personnel acknowledged that the unavoidable
breakdown rule should be revised and committed to do so. For example,
in a January 17, 2001 letter to EPA, Rick Sprott, then the Executive
Director of the Utah Division of Air Quality (UDAQ), wrote the
following:
``With respect to EPA's concern with the breakdown rule
currently approved into Utah's SIP, UDAQ agrees that the rule would
benefit from clarification.''
Later, in an April 18, 2002 letter,\5\ Mr. Sprott wrote the
following:
\5\ April 18, 2002 letter from Rick Sprott, UDAQ to Richard
Long, EPA referred to as 15-point commitment letter.
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``The Utah Division of Air Quality commits to work with EPA in
good faith to develop approvable SIP revisions, which address the
following issues:
* * *
8. Unavoidable breakdown rules and consistency with the EPA
September 20, 1999 policy regarding such breakdowns.''
In 2004, UDAQ staff drafted replacement rule language for the
breakdown rule, consulted with EPA and other stakeholders, and
initiated the State's public process for SIP revisions. EPA provided
detailed comments regarding draft rule language and in January 2005
traveled to Utah to provide a detailed presentation to UDAQ and
industry stakeholders regarding EPA's interpretations of the CAA and
concerns regarding UDAQ's proposed replacement rule language.
Following the January 2005 meeting, Fred Nelson of the Utah
Attorney General's Office prepared another draft of possible
replacement rule language, which he shared with EPA and industry
representatives. In May 2005, in an attempt to ensure that any rule
revision could ultimately be approved by EPA, EPA provided specific
comments and suggestions to Mr. Nelson regarding this draft. However,
UDAQ did not pursue further rulemaking action at that time.
During the August 2, 2006 midyear review between UDAQ and EPA, the
unavoidable breakdown rule was again discussed. Mr. Sprott indicated
that he did not want to pursue further action on the unavoidable
breakdown rule given the disagreement between Utah industry and EPA.
However, he said he was aware that Colorado was in the process of
revising its malfunction rule, that he would be happy to benefit from
the Colorado process, and that if it concluded successfully, he would
lead the effort to adopt a new rule in Utah. Mr. Sprott also said that
while he wanted to complete a rule revision through a cooperative
process, if it couldn't be done that way, EPA should do a SIP call.
Although Colorado subsequently adopted a revised malfunction rule and
we approved it into the SIP without challenge (73 FR 45879, August 7,
2008), we are unaware of any further steps taken by Utah to revise its
unavoidable breakdown rule.
To assure that a state's SIP provides for attainment and
maintenance of the NAAQS, and compliance with other CAA requirements,
sections 110(a)(2)(H) and 110(k)(5) of the CAA authorize EPA to find
that a SIP is substantially inadequate to attain or maintain a NAAQS,
or comply with other CAA requirements, and to require (``call for'')
the state to submit, within a specified time period, a SIP revision to
correct the inadequacy. This CAA requirement for a SIP revision is
known as a ``SIP call.'' The CAA authorizes EPA to allow a state up to
18 months to respond to a SIP call.
On September 3, 2009, WildEarth Guardians (WEG) filed a complaint
against EPA in the U.S. District Court for the District of Colorado
(Civil Action No. 09-cv-02109-MSK-KLM) seeking, among other things, an
injunction requiring EPA to issue a SIP call to Utah to revise the
unavoidable breakdown rule. On November 23, 2009, we entered into a
Consent Decree with WEG that requires us to sign a notice of final
rulemaking action by February 28, 2011. In that final rulemaking action
we must determine whether the Utah breakdown provision (Utah
Regulations 307-107-1 through 307-107-5) renders the Utah SIP
``substantially inadequate'' within the meaning of section 110(k)(5) of
the CAA, 42 U.S.C. 7410(k)(5), and, if EPA determines that the SIP is
substantially inadequate, require the State to revise the SIP as it
relates to the Utah breakdown provision. We intend to meet the
requirements of the Consent Decree through the rulemaking action we are
initiating today.
III. Why is EPA proposing a SIP call?
Utah rule R307-107 contains various provisions that are
inconsistent with EPA's interpretations regarding the appropriate
treatment of malfunction events in SIPs and which render the Utah SIP
substantially inadequate. As a result, we are calling for a SIP
revision.
A. Deficiencies in R307-107-1
R307-107-1 indicates it applies to all regulated pollutants
including those for which there are NAAQS and states that ``emissions
resulting from unavoidable breakdown will not be deemed a violation of
these regulations.'' As described above, our interpretation of the CAA
as expressed in our various policy statements since the early 1980s is
that SIP provisions may not provide that periods of excess emissions
are not violations.
We believe the Utah rule's broad exemption undermines the ability
to protect the NAAQS, PSD increments, and visibility through
enforcement of emission limits contained in the SIP. The Utah SIP
contains generic emission limits that help areas maintain the NAAQS as
well as emission limits specifically modeled and relied on to bring
areas not attaining the NAAQS into attainment. See, e.g., Utah rule
R307-201 (``General Emission Standards'') and Section IX.H.1 of the
Utah SIP (contains emission limits for the Utah County PM10
nonattainment area SIP). Because the NAAQS are not directly enforceable
against individual sources,\6\ SIPs rely on the adoption and
enforcement of these generic and specific emission limits to attain and
maintain the NAAQS, as well as to protect PSD increments and meet other
CAA requirements, such as protection of visibility in Class I areas.
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\6\ See, e.g., Coalition Against Columbus Ctr. v. New York, 967
F.2d 764, 769 (2d Cir. 1992); League to Save Lake Tahoe, Inc. v.
Trounday, 598 F.2d 1164, 1173 (9th Cir. 1979); 57 FR 32276, July 21,
1992.
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In the case of an unavoidable breakdown, the rule's exemption
eliminates any opportunity to obtain injunctive relief that may be
needed to protect the NAAQS, increments, and visibility. Thus, the rule
impedes the ability to protect public health and the environment.
Furthermore, the rule's exemption reduces a source's incentive to
design, operate, and maintain its facility to meet emission limits at
all times.
We expect some commenters may assert that we need to show a direct
causal link between unavoidable breakdown excess emissions and specific
threats to or violations of the
[[Page 70892]]
NAAQS to conclude that the SIP is substantially inadequate. We do not
agree. It is our interpretation that the fundamental integrity of the
CAA's SIP process and structure are undermined if emission limits
relied on to meet CAA requirements related to protection of public
health and the environment can be violated without potential recourse.
We do not believe we are restricted to issuing SIP calls only after a
violation of the NAAQS has occurred or only where a violation can be
directly linked to specific excess emissions. It is sufficient that
emissions limits to which the unavoidable breakdown exemption applies
have been, are being, and will be relied on to attain and maintain the
NAAQS and meet other CAA requirements.\7\
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\7\ The U.S. Court of Appeals for the Eleventh Circuit has
recognized that a SIP call under CAA section 110(k)(5) is the
appropriate mechanism for EPA to require a change to an existing SSM
provision in a SIP: ``EPA policy guidance cannot trump the SSM Rule
adopted by Georgia and approved formally by the EPA * * * If the EPA
believes that its current interpretation of the Clean Air Act
requires Georgia to modify its SSM Rule, the EPA should require the
state to revise its SIP to conform to EPA policy'' (citing CAA
section 110(k)(5)).
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Our interpretation of the CAA is supported by sections 110 and 302
of the CAA. Section 110(a)(2)(A) requires each SIP to include
enforceable emission limitations necessary or appropriate to meet the
CAA's applicable requirements. As noted above, these applicable
requirements include attainment and maintenance of the NAAQS,
prevention of significant deterioration, and improvement and protection
of visibility in national parks and wilderness areas. Section 302(k)
defines emission limitation as a requirement established by a state or
EPA that ``limits the quantity, rate, or concentration of emissions of
air pollutants on a continuous basis.'' (Emphasis added.) Because of
the exemption in R307-107-1, emission limits in the Utah SIP that have
been relied on by the State to demonstrate attainment and maintenance
of the NAAQS and meet other CAA requirements do not limit emissions on
a continuous basis and are not fully enforceable.
R307-107-1 is also substantially inadequate because it applies to
all regulated pollutants, not just NAAQS pollutants, and because it
indicates that excess emissions from an unavoidable breakdown are not
deemed a violation of ``these regulations.'' ``These regulations''
includes the totality of Utah's air pollution control regulations,
which include the regulations Utah has incorporated by reference to
receive delegation of federal authority--for example, New Source
Performance Standards (NSPS) and National Emission Standards for
Hazardous Air Pollutants (NESHAPS). See Utah rules R307-210 and R307-
214. To the extent any exemptions with respect to malfunctions from
these technology-based standards are warranted, the federal standards
contained in EPA's regulations already specify the appropriate
exemptions. See, e.g., 40 CFR 60.48Da(c). No additional exemptions are
warranted or appropriate. See, e.g., 40 CFR 60.10(a); 40 CFR
63.12(a)(1); and the 1999 Policy, Attachment, page 3. Thus, R307-107-1
is substantially inadequate because it improperly provides an exemption
not contained in and not sanctioned by the delegated federal standards.
Our interpretation, as it applies to both technology-based
standards and SIP limits, is further supported by a 2008 U.S. Court of
Appeals decision that vacated EPA's general malfunction exemption from
CAA section 112(d) maximum achievable control technology (MACT)
standards. Sierra Club v. EPA, 551 F.3d 1019 (DC Cir. 2008), cert.
denied. The court vacated the exemption because it was inconsistent
with the CAA's requirement that emission standards--such as the 112(d)
MACT standards--must apply continuously, as expressed in section 302(k)
of the CAA. The court specifically held that a regulatory provision
establishing a general duty to minimize hazardous air pollutant (HAP)
emissions during malfunctions was not an emission standard under CAA
section 112. Although the decision addressed the HAP program and not
the SIP program, it carries significant weight for the SIP program as
well because section 302(k) is equally relevant for the SIP program.
R307-107-1's broad malfunction exemption from ``these regulations'' is
inconsistent with section 302(k) as interpreted by the Court in Sierra
Club.
As referenced in R307-107-1, ``these regulations'' would also
include Utah's PSD and nonattainment major new source review (NSR)
requirements. This means a source could use the provisions of R307-107
to claim an exemption from best available control technology (BACT) or
lowest achievable emission rate (LAER) limits in a major source permit
for excess emissions resulting from an unavoidable breakdown. We have
consistently interpreted the Act to not allow for outright exemptions
from BACT limits, and the same logic applies to LAER limits. See, e.g.,
1977 memorandum entitled ``Contingency Plan for FGD Systems During
Downtime as a Function of PSD,'' from Edward E. Reich to G.T. Helms and
January 28, 1993 memorandum entitled ``Automatic or Blanket Exemptions
for Excess Emissions During Startup and Shutdowns under PSD,'' from
John B. Rasnic to Linda M. Murphy. As noted, in order to ensure non-
degradation of air quality at all times under the PSD program and
protection of the NAAQS at all times, it is necessary for a source to
comply with its permit limits at all times. This is another reason
R307-107's exemption renders the Utah SIP substantially inadequate.
B. Deficiencies in R307-107-2
R307-107-2 requires the source to submit information regarding an
unavoidable breakdown to the executive secretary of Utah's Air Quality
Board (UAQB) and indicates that the information ``shall be used by the
executive secretary in determining whether a violation has occurred
and/or the need of further enforcement action.'' In other words, the
executive secretary shall determine whether the excess emissions were
caused by an unavoidable breakdown and, thus, whether the excess
emissions constitute a violation or not. This rule provision appears to
give the executive secretary exclusive authority to determine whether
excess emissions constitute a violation.\8\ We believe this is
inconsistent with the enforcement structure contemplated by the CAA.
Specifically, the CAA provides authority to enforce violations of SIP
and other CAA emission limits to EPA and citizens as well as to the
states. Thus, the CAA provides EPA and citizens with authority to
pursue a violation even if a state chooses not to. See sections 113 and
304 of the CAA. It is our interpretation, expressed in our 1999 Policy,
that SIP provisions that give exclusive authority to a state to
determine whether an enforcement action can be pursued for an
exceedance of an emission limit are inconsistent
[[Page 70893]]
with the CAA's regulatory scheme. EPA and citizens, and any court in
which they seek to file an enforcement claim, must retain the authority
to independently evaluate whether a source's exceedance of an emission
limit warrants enforcement action. Because a court could interpret
section R307-107-2 as undermining the ability of EPA and citizens to
independently exercise enforcement discretion granted by the CAA, it is
substantially inadequate to comply with CAA requirements related to
enforcement. Because it undermines the envisioned enforcement
structure, attainment and maintenance of the NAAQS and compliance with
other CAA requirements related to PSD, visibility, NSPS, and NESHAPS is
less certain. Potential EPA and citizen enforcement provides an
important safeguard in the event a state lacks resources or appropriate
intention to enforce CAA violations. Thus, R307-107-2 renders the SIP
substantially inadequate to attain or maintain the NAAQS or otherwise
comply with the CAA.
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\8\ As we noted earlier, in a 1980 approval of a predecessor to
the current unavoidable breakdown rule, EPA indicated that EPA might
not approve exemptions granted by the State and that the State's
exemption would not apply as a matter of federal law. Thirty years
later, we are not sanguine that a court would uphold our
interpretation, or that five years from now, anyone will remember
that interpretation. See, e.g., U.S. v. Ford Motor Co., 736 F.Supp.
1539 (W.D. Mo. 1990) and U.S. v General Motors Corp., 702 F.Supp.
133 (N.D. Texas 1988) (EPA could not pursue enforcement of SIP
emission limits where states had approved alternative limits under
procedures EPA had approved into the SIP.) While we do not agree
with the holdings of these cases, we think the reasonable course is
to eliminate any uncertainty about reserved enforcement authority by
requiring the State to revise or remove the unavoidable breakdown
rule from the SIP.
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C. Conclusion
For the reasons stated above, EPA is proposing to find, pursuant to
sections 110(a)(2)(H) and 110(k)(5) of the CAA, that the Utah SIP is
substantially inadequate to attain or maintain the NAAQS or to
otherwise comply with the requirements of the CAA. Utah rule R307-107
improperly undermines EPA's, Utah's, and citizens' ability to enforce
emission limitations that have been relied on in the SIP to ensure
attainment and maintenance of the NAAQS or meet other CAA requirements.
Pursuant to sections 110(a)(2)(H) and 110(k)(5) of the CAA, we are
proposing to call for Utah to remove R307-107 from the SIP or revise it
to be consistent with CAA requirements.
We are proposing that Utah must respond to our SIP call within 12
months of the effective date of a final rule issuing a SIP call. We
think this is a reasonable amount of time for several reasons. First,
Utah has been aware of our concerns for years. Utah previously
initiated the State rulemaking process to address the SIP deficiencies
but dropped its efforts when it couldn't achieve consensus. Second,
industry and WildEarth Guardians' predecessor had extensive involvement
in the development of the Colorado malfunction rule, which, as noted
above, we approved in 2008. The Colorado malfunction rule is readily
available online, and use of the Colorado rule as a template would give
the UAQB a substantial head start in addressing the SIP deficiencies.
Other examples of provisions that have been approved or promulgated by
EPA for areas within the Region are also available. See, e.g., https://
yosemite.epa.gov/R8/R8Sips.nsf/641057911f6bd13987256b5f0054f380/
722dcc2462e7856a87256ef3005f6d4f/$FILE/Ch%201%20Sect%205.pdf (Wyoming
air rules, Chapter 1, Section 5, approved at 75 FR 19886, April 16,
2010); 73 FR 21418, 21464, April 21, 2008. Third, another option to
address the deficiencies is to simply remove R307-107 from the SIP.
Under this option, no time would be needed to develop replacement SIP
rule language.
IV. What happens if EPA issues a final SIP call and the State of Utah
does not submit a complete SIP revision that responds to the SIP call
or if EPA disapproves a SIP revision that responds to the SIP call?
If Utah fails to submit a complete SIP revision that responds to a
final SIP call, CAA section 179(a) provides for EPA to issue a finding
of State failure. Such a finding starts mandatory 18-month and 24-month
sanctions clocks and a 24-month clock for promulgation of a federal
implementation plan (FIP) by EPA. The two sanctions that apply under
CAA section 179(b) are the 2-to-1 emission offset requirement for all
new and modified major sources subject to the nonattainment new source
review program and restrictions on highway funding. However, section
179 leaves it up to the Administrator to decide the order in which
these sanctions apply. EPA issued an order of sanctions rule in 1994
(59 FR 39832, August 4, 1994, codified at 40 CFR 52.31) but did not
specify the order of sanctions where a state fails to submit or submits
a deficient SIP in response to a SIP call. However, the order of
sanctions specified in that rule (40 CFR 52.31) should apply here for
the same reasons discussed in the preamble to that rule. Thus, if EPA
issues a final SIP call and Utah fails to submit the required SIP
revision, or submits a revision that EPA determines is incomplete or
that EPA disapproves, EPA proposes that the 2-to-1 emission offset
requirement will apply for all new sources subject to the nonattainment
new source review program 18 months following such finding or
disapproval unless the State corrects the deficiency before that date.
EPA proposes that the highway funding restrictions sanction will also
apply 24 months following such finding or disapproval unless the State
corrects the deficiency before that date. EPA is also proposing that
the provisions in 52.31 regarding staying the sanctions clock and
deferring the imposition of sanctions would also apply.
Mandatory sanctions under section 179 generally apply only in
nonattainment areas. By its definition, the emission offset sanction
applies only in areas required to have a part D NSR program, typically
areas designated nonattainment.\9\ Section 179(b)(1) expressly limits
the highway funding restriction to nonattainment areas. Additionally,
EPA interprets the section 179 sanctions to apply only in the area or
areas of the State that are subject to or required to have in place the
deficient SIP and for the pollutant or pollutants the specific SIP
element addresses. In this case, mandatory sanctions would apply in all
areas designated nonattainment for a NAAQS within the State because
Utah rule R307-107 applies statewide and applies for all NAAQS
pollutants.
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\9\ An exception to this, not relevant here, is areas located in
the Ozone Transport Region, which are required to have a part D NSR
program regardless of the area's designation. See CAA section
184(b)(2).
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EPA has additional authority to impose discretionary sanctions
under CAA section 110(m). EPA's authority to impose sanctions under
section 110(m) is triggered by the same findings that trigger the
mandatory imposition of sanctions. However, under section 110(m), EPA
may impose sanctions more quickly than provided under the mandatory
sanction provision and may also impose them in a broader area.
Specifically, under section 110(m), EPA may impose sanctions ``any
time'' after it has made a finding of deficiency or disapproved a SIP.
In addition, EPA may impose the sanctions with respect to ``any portion
of the State the Administrator determines reasonable and appropriate.''
Finally, although imposition of the 2-to-1 offset sanction is still
limited by its terms to areas with part D NSR programs, the highway
funding restrictions can be applied in areas designated as attainment
or unclassifiable as well as those designated nonattainment. See 59 FR
1476 (January 11, 1994); 40 CFR 52.30(d)(2). EPA may determine whether
or not to use this authority in response to a SIP failure, and, thus,
they are termed discretionary sanctions.
Because only limited portions of the State are designated
nonattainment, the mandatory sanctions would not be applicable in all
areas of the State that are covered by the rule we have proposed is
deficient. EPA is requesting comment on whether to exercise its
discretionary authority to impose the highway funding restrictions
sanction in all areas of the State, regardless of
[[Page 70894]]
designation, if it finalizes this proposed SIP call and the State fails
to submit a complete SIP revision or EPA disapproves such revision. If
EPA were to impose discretionary sanctions, EPA proposes that the same
24-month clock would apply to the highway funding sanction as would
apply under the mandatory sanctions.
In addition to sanctions, if EPA finalizes this SIP call and then
finds that the State failed to submit a complete SIP revision that
responds to the SIP call or disapproves such revision, the requirement
under section 110(c) would be triggered that EPA promulgate a FIP no
later than two years from the date of the finding or the disapproval if
the deficiency has not been corrected.
V. Proposed Action
EPA is proposing that the Utah SIP is substantially inadequate to
attain or maintain the NAAQS or to otherwise comply with requirements
of the CAA due to significant deficiencies created by Utah's
unavoidable breakdown rule, R307-107. Pursuant to CAA sections
110(a)(2)(H) and 110(k)(5), EPA is proposing to require that Utah
revise the SIP to correct the inadequacies and submit the revised SIP
to EPA within 12 months of the effective date of a final rule finding
the SIP substantially inadequate. EPA is proposing that mandatory
sanctions under CAA section 179 would apply as provided in 40 CFR 50.31
should Utah not submit a complete SIP consistent with a final SIP call
requirement or should EPA disapprove any such submission. EPA is also
requesting comment on whether EPA should exercise its discretionary
authority under section 110(m) to impose highway funding restrictions
in all areas of the State if 24 months after a sanctions clock has been
triggered, the State has still not corrected the deficiency that
triggered the sanctions clock.
We are soliciting comments on these proposed actions. Final
rulemaking will occur after consideration of any comments.
VI. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed action is not a ``significant regulatory action'' and
therefore is not subject to review by the Office of Management and
Budget. For this reason, this action is also not subject to Executive
Order 13211, ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001).
This proposed action would only require the State of Utah to revise
UAC R307-107 to address requirements of the CAA. Accordingly, the
Administrator certifies that this proposed action would not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) because
this proposed action would not impose any requirements on small
entities.
Since the only costs of this action would be those associated with
preparation and submission of the SIP revision, EPA has determined that
this proposed action would not include a Federal mandate that may
result in expenditures of $100 million or more to either state, local,
or tribal governments in the aggregate, or to the private sector in any
one year. Accordingly, this proposed action is not subject to the
requirements of sections 202 or 205 of the unfunded mandates reform act
(UMRA).
In addition, since the only regulatory requirements of this
proposed action would apply solely to the State of Utah, this action is
not subject to the requirements of section 203 of UMRA because it
contains no regulatory requirements that might significantly or
uniquely affect small governments.
Since this proposed action would impose requirements only on the
State of Utah, it also does not have tribal implications. It would not
have a substantial direct effect on one or more Indian tribes, on the
relationship between the Federal Government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
This proposed action also does not have Federalism implications
because it would not have substantial direct effects on the states, on
the relationship between the national government and the states, or on
the distribution of power and responsibilities among the various levels
of government, as specified in Executive Order 13132 (64 FR 43255,
August 10, 1999), because it would simply maintain the relationship and
the distribution of power and responsibilities between EPA and the
states as established by the CAA. This proposed SIP call is required by
the CAA because EPA believes the current SIP is substantially
inadequate to attain or maintain the NAAQS or comply with other CAA
requirements. Utah's direct compliance costs would not be substantial
because the proposed SIP call would require Utah to submit only those
revisions necessary to address the SIP deficiencies and applicable CAA
requirements.
EPA interprets Executive Order 13045 ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997) as applying only to those regulatory actions that concern health
or safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
action is not subject to Executive Order 13045 because it would not
establish an environmental standard, but instead would require Utah to
revise a state rule to address requirements of the CAA.
Section 12 of the National Technology Transfer and Advancement Act
of 1995 requires Federal agencies to evaluate existing technical
standards when developing a new regulation. To comply with the National
Technology Transfer and Advancement Act, EPA must consider and use
``voluntary consensus standards'' (VCS) if available and applicable
when developing programs and policies unless doing so would be
inconsistent with applicable law or otherwise impractical. In making a
finding of a SIP deficiency, EPA's role is to review existing
information against previously established standards. In this context,
there is no opportunity to use VCS. Thus, the requirements of section
12(d) of the National Technology Transfer and Advancement Act of 1995
(15 U.S.C. 272 note) do not apply.
This proposed action would not impose an information collection
burden under the provisions of the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.), since it would only require the State of Utah to
revise UAC R307-107 to address requirements of the CAA.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
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: November 10, 2010.
James B. Martin,
Regional Administrator, Region 8.
[FR Doc. 2010-29237 Filed 11-18-10; 8:45 am]
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