03-12027. Approval and Promulgation of Air Quality Implementation Plans; State of Utah; Continuous Emission Monitoring Program

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is taking direct final action approving State Implementation Plan (SIP) revisions submitted by the Governor of Utah on September 7, 1999 and February 11, 2003. The September 7, 1999 submittal revises Utah's Air Conservation Regulations (UACR) by repealing and re-enacting the Continuous Emission Monitoring Program (CEM) rule in order to clarify the requirements of the rule. The February 11, 2003 submittal makes additional revisions to the CEM rule to make it in agreement with Federal regulations and the Clean Air Act (CAA). The intended effect of this action is to make the CEM rule federally enforceable. This action is being taken under section 110 of the CAA.

DATES:

This rule is effective on July 14, 2003 without further notice, unless EPA receives adverse comment by June 16, 2003. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.

ADDRESSES:

Written comments may be mailed to Richard R. Long, Director, Air and Radiation Program, Mailcode 8P-AR, Environmental Protection Agency (EPA), Region 8, 999 18th Street, Suite 300, Denver, Colorado, 80202. Copies of the documents relevant to this action are available for public inspection during normal business hours at the Air and Radiation Program, Environmental Protection Agency, Region 8, 999 18th Street, Suite 300, Denver, Colorado, 80202 and copies of the Incorporation by Reference material are available at the Air and Radiation Docket and Information Center, U.S. Environmental Protection Agency, Room B-108 (Mail Code 6102T), 1301 Constitution Ave., NW., Washington, DC 20460. Copies of the State documents relevant to this action are available for public inspection at the Utah Department of Environmental Quality, Division of Air Quality, 150 North 1950 West, Salt Lake City, Utah 84114.

FOR FURTHER INFORMATION CONTACT:

Laurel Dygowski, EPA, Region 8, [phone].

SUPPLEMENTARY INFORMATION:

Throughout this document, wherever the term “we” or “our” is used means EPA.

I. Summary of SIP Revisions

A. September 7, 1999 Submittal

On September 7, 1999 and February 11, 2003, the Governor of Utah submitted revisions to the SIP. The September 7, 1999 submittal revises Utah's Air Conservation Regulations (UACR) by repealing and re-enacting the Continuous Emission Monitoring Program (CEM) rule, R307-170, in order to clarify the requirements of the rule. R307-170 applies to sources in Utah that use continuous monitoring systems to report their emissions. The changes to the CEM rule clarify points which were vague in the old rule, identify reporting parameters, reduce quarterly reporting for some CEM sources, and require electronic data reporting. The rule is also changed to reflect that when sources are planning on conducting a relative accuracy test audit, they must give notice to the executive secretary forty-five days instead of thirty days before performing a relative accuracy test audit and also submit the pretest protocol. In addition, the new rule separates monitor unavailability into categories which are exempt and non-exempt for reporting purposes and does not require reporting emissions during shutdowns.

B. February 11, 2003 Submittal

On April 2, 2002, EPA Region 8 sent a letter from Richard Long, Director, Air and Radiation Program, to Richard Sprott, Director, Utah Division of Air Quality to explain that certain sections in R307-170, as submitted on September 7, 1999, were not approvable. Specifically, the letter pointed out a typographical error in R307-170-4, as well as director discretion provisions in the following sections: R307-170-5(c), R307-170-5(d) and R307-107-9(4)(c). Director discretion means that sections R307-170-5(c), R307-170-5(d) and R307-107-9(4)(c) contain language that allows the State to approve alternative sampling methods and determine when continuous emission monitoring breakdowns are not a violation. These director discretion provisions essentially allow for a variance from SIP requirements, which is not allowed under section 110(i) of the Clean Air Act. The April 2, 2002 letter stated that unless the State corrected these provisions, we would not be able to approve them. On February 11, 2003, the Governor of Utah submitted revisions to R307-170 to correct the typographical error in R307-170-4 and director discretion provisions in R307-170-5(c), R307-170-5(d) and R307-107-9(4)(c).

We have reviewed the revisions identified above. We believe the revisions are acceptable and are approving them into the SIP.

II. Final Action

EPA is approving SIP revisions submitted by the Governor of Utah on September 7, 1999 and February 11, 2003. The September 7, 1999 submittal revises UACR by repealing and re-enacting R307-170, CEM rule, in order to clarify the requirements of the rule. The February 11, 2003 submittal makes additional revisions to the CEM rule to make it in agreement with Federal regulations and the CAA.

Section 110(l) of the Clean Air Act states that a SIP revision cannot be approved if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress towards attainment of the NAAQS or any other applicable requirements of the Act. The Utah SIP revisions that are the subject of this document do not interfere with the maintenance of the NAAQS or any other applicable requirement of the Act because the revisions meet the requirements of 40 CFR 51.214, 40 CFR 51, Appendix P and 40 CFR 60. Therefore, section 110(l) requirements are satisfied.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the “Proposed Rules” section of today's Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments be filed. This rule will be effective July 14, 2003 without further notice unless the Agency receives adverse comments by June 16, 2003. If the EPA receives adverse comments, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

III. Statutory and Executive Order Review

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 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 action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will 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 rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it 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).

This rule also does not have tribal implications because it will 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 action also does not have Federalism implications because it does 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). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. 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 rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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 rule 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. section 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 July 14, 2003. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule 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: April 3, 2003.

Robert E. Roberts,

Regional Administrator, Region 8.

40 CFR part 52 is amended as follows:

PART 52—[AMENDED]

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

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

Subpart TT—Utah

2. Section 52.2320 is amended by adding paragraph (c)(57) to read as follows:

§ 52.2320

Identification of plan.

* * * * *

(c) * * *

(57) On September 7, 1999 and February 11, 2003, the Governor of Utah submitted revisions to the SIP. The submittals revise Utah's Air Conservation Regulations (UACR), R307-170, Continuous Emission Monitoring Program, by repealing and re-enacting the rule to clarify requirements of the rule. The revisions are being approved into the SIP.

(i) Incorporation by reference.

(A) UACR R307-170, effective 4/1/1999, except sections R307-170-4, R307-170-5 and R307-170-9.

(B) UACR sections R307-170-4, R307-170-5 and R307-170-9, effective December 5, 2002.