E9-520. Approval and Promulgation of Air Quality Implementation Plans; Utah's Emission Inventory Reporting Requirements

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 State of Utah on September 7, 1999, and December 1, 2003. The revisions add the requirements of EPA's Consolidated Emission Reporting Rule (CERR) to the State's SIP.

Utah has submitted four SIPs that relate to today's action on the CERR requirements. The State of Utah submitted a SIP revision on September 20, 1999, which did not make any substantive changes, but adopted a re-organization and renumbering of the air quality regulations. Although EPA is not acting on this particular submittal, EPA is approving and incorporating by reference rules using this new numbering scheme. Approving these rules rather than the earlier version will avoid confusion to the public and will obviate the need for future SIP revisions merely to renumber the SIP. In the remainder of this notice, we will refer to the rules by their current numbers, as reflected in the September 20, 1999 submittal, unless the context dictates otherwise.

EPA is acting on the submittal of September 7, 1999, which addresses inventory requirements for emissions from landfills. EPA is approving only the emission inventory requirement for larger landfills, located at Utah Rule R307-221-1 under the State's new numbering system. As emissions from these larger landfills may exceed the emission reporting thresholds addressed in the CERR, Utah must include this information in its emission inventory report to EPA. The remainder of the September 7, 1999 revisions do not affect the State's ability to comply with the CERR; therefore, EPA is not acting on them.

The Governor submitted additional revisions to their air quality emission inventory rules on October 23, 2000, which addressed inventory requirements for ammonia emissions. These revisions are contrary to the CERR issued on June 10, 2002 and, therefore, EPA is not acting on the October 23, 2000 SIP.

The December 1, 2003 submittal adopted the requirements of the CERR by way of revisions to Utah Rule R307-150. In this action, we are approving and incorporating by reference Utah Rule R307-150, with the exception of two of its subparts, R307-150-4 and R308-150-8. EPA is not approving and incorporating R307-150-4 because it addresses inventory requirements for the Regional Haze State Implementation Plan and the Regional Haze regulatory requirements have changed since the 2003 submission. EPA is also not approving R307-150-8, which exempts specific Hazardous Air Pollutants (HAPs) from being reported in emission inventories if the amount of the emissions falls below a specific limit. EPA is not acting on this part of the submittal because the CERR does not require that HAPs emissions be reported to EPA.

The intended effect of today's action is to approve only those portions from the State's submittals that add CERR requirements. This action is being taken under section 110 of the Clean Air Act.

DATES:

This rule is effective on March 16, 2009 without further notice, unless EPA receives adverse comment by February 13, 2009. If adverse comment is received, EPA will publish a timely withdrawal of this direct final rule in the Federal Register informing the public that the rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R08-OAR-2007-1031, by one of the following methods:

• http://www.regulations.gov. Follow the on-line instructions for submitting comments.
• E-mail: [e-mail] and [e-mail].
• Fax: [phone] (please alert the individual listed in the FOR FURTHER INFORMATION CONTACT section if you are faxing comments).
• Mail: Callie Videtich, Director, Air Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129.
• Hand Delivery: Callie 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-2007-1031. 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 protected through http://www.regulations.gov or e-mail. The http://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 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 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 (EPA), Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-1129. EPA requests that if at all possible, you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy of the docket. You may view the hard copy of the docket Monday through Friday, 8 a.m. to 4 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Mark Komp, Air Program, 1595 Wynkoop Street, Mailcode: 8P-AR, Denver, Colorado 80202-1129, [phone], [e-mail].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. General Information

II. Background of State's Submittals

III. EPA Analysis of State's Submittals

IV. Consideration of Section 110(l) of the CAA

V. Final Action

VI. Statutory and Executive Order Reviews

Definitions

For the purpose of this document, we are giving meaning to certain words or initials as follows:

(i) The words or initials Act or CAA mean or refer to the Clean Air Act, unless the context indicates otherwise.

(ii) The words EPA, we, us or our mean or refer to the United States Environmental Protection Agency.

(iii) The initials SIP mean or refer to State Implementation Plan.

(iv) The words State or Utah mean the State of Utah, unless the context indicates otherwise.

I. General Information

A. What Should I Consider as I Prepare My Comments for EPA?

1. Submitting CBI. Do not submit this information to EPA through http://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 of State's Submittals

The Consolidated Emission Reporting Rule (CERR), 40 CFR 51, simplifies and consolidates emission inventory reporting requirements for the statewide reporting of ammonia (NH₃), carbon monoxide (CO), lead (Pb), nitrogen dioxide (NO_X), particulate matter (PM₁₀ and PM_2.5), sulfur dioxide (SO₂) and volatile organic compounds (VOC) for point, nonpoint and mobile source emissions. Many State and local agencies asked EPA to develop the CERR in an effort to consolidate reporting requirements, increase the efficiency of emission inventory programs, and provide for more consistent and uniform data. The CERR was published on June 10, 2002 (67 FR 39602). States were required to begin reporting emissions released during calendar year 2002. Thereafter, States are required to report large point source emissions annually and small point, nonpoint and mobile emissions every three years.

We asked the State of Utah in our letter dated October 15, 2002 to update its emission reporting requirements to meet those specified in the CERR. We also asked the State to withdraw earlier SIP submittals regarding emission reporting requirements because the earlier submittals may have had conflicting requirements compared to those found in the CERR. The State complied with our request by using parts of earlier submittals and a subsequent SIP revision submittal in order to comply with the CERR. It is these submittals that EPA is acting on today.

III. EPA Analysis of State's Submittals

We address four Utah SIP submittals in today's action:

• September 7, 1999 submittal, which consists of Utah's original revisions to the rules for collecting inventories of air pollution emissions prior to the issuance of the CERR;
• September 20, 1999 submittal, which consists of a reorganization of all Utah's air quality rules and represents no substantive change in Utah's regulations with regard to the CERR;
• October 23, 2000 submittal, which deleted Utah's required reporting of NH₃ emissions; and
• December 1, 2003 submittal, which consists of Utah's revisions to its rule for emission inventories incorporating the requirements of the CERR.

We note that in this action we are approving and incorporating by reference rules that were re-numbered and re-titled in the Governor's reorganization submittal of September 20, 1999 as these represent the current version of the State rule. The air program regulations were previously numbered R307-1 through R307-410 are now located at Rules R307-100 through R307-800. Approving these rules rather than the earlier version will avoid confusion to the public and will obviate the need for a future SIP revision merely to re-number the regulations. Though we are not acting on the submittal itself, in this notice we will refer to the rule by its current numbers as reflected in the September 20, 1999 SIP submittal, unless the context dictates otherwise.

On September 7, 1999, the State of Utah submitted Utah Air Quality Emission Inventory Rules R307-150, R307-155, R307-158 and R307-221, which address emissions from landfills and together comprise a re-numbered and re-titled version of Rules R307-1-2, R307-1-3 and R307-21. The State's September 20, 1999 submittal showed Rules R307-150, R307-155, R307-158 and R307-221 are identical to the text of the re-titled and re-numbered version of Rule R307-1-2, R307-1-3 and R307-21. The State submitted additional revisions to their air quality emission inventory rules on October 23, 2000, which deleted the requirement for emissions reporting of ammonia, located at Utah Rule 307-150-1, -3, and -4. In light of the CERR, the State replaced these revisions with its December 1, 2003 submittal. The December 1, 2003 submittal repealed rules R307-155 and R307-158 and amended Rule 307-150. Of these submittals, we are approving and incorporating by reference only Rules 307-150-1,-2,-3,-5,-6, and -7 (general emission inventory requirements) and R307-221-1 (emission inventory requirements for larger landfills) because they comprise the current version of the State rules that address the CERR requirements.

On September 7, 1999, the State of Utah submitted to EPA a revision to Utah Rule R307-150 (originally Utah Rule R307-1-2 and R307-1-3) which included changes regarding the general applicability, reporting, timing of submittals and recordkeeping requirements for emission inventories as required by federal rule under 40 CFR 51. In the same submittal, Utah revised its rules regarding emission inventory preparation and reporting for hazardous air pollutants (Rule R307-155 and R307-158). The revisions required that all sources of VOC that emit 10 tons per year or more and sources that emit 25 tons per year or more of NO_X in Utah and Weber counties must report to the State. Utah also revised Rule R307-221-1 regarding emission inventories for municipal solid waste landfills requiring that inventories be prepared for landfills with a design capacity greater than or equal to 2,755,750 tons in accordance with the general emission inventory requirements of Utah Rule R307-150.

Within the September 7, 1999 submittal, EPA is approving only the emission inventory requirement for landfills located at Utah Rule R307-221-1 under the State's new numbering system since emissions from larger landfills may exceed the reporting thresholds addressed in the CERR and, therefore, require their inclusion in Utah's emission inventory report to EPA. EPA is not acting on the remainder of the September 7, 1999 revision since they do not affect the State's ability to comply with the CERR, the purpose of today's action.

On October 23, 2000, Utah submitted another revision to Utah Rule 307-150, which governs emission inventories. The State deleted all provisions that required the reporting of NH₃ emissions, which were located in Utah Rule 307-150-1, -3, and -4. The State's reasoning at the time was that NH₃ emissions amounted to less than two percent of total emissions from industrial sources and, thus, there was no need to require point sources to submit the information.

EPA never took action on the October 23, 2000 submittal from the State due to the fact that the May 23, 2000 proposed rule for the CERR (65 FR 33268) specified that all states must document NH₃ emissions as part of their emission inventory.

EPA waited for the CERR to become final before taking action on Utah's October 23, 2000 submittal. On June 10, 2002, EPA published the final rule for the CERR (67 FR 39602). In our letter dated October 15, 2002, we advised Utah of its need to update its emission inventory reporting requirements to meet those specified in the CERR. We asked the State to withdraw the October 23, 2000 submittal because it was now contrary to the CERR.

Before EPA could take action on the October 23, 2000 submittal, the State submitted on December 1, 2003 a revision to its State SIP that changed its emission inventory requirements. This submittal replaced the emission inventory requirements in the October 20, 2000 submittal and it is for this reason that we are acting only on the December 1, 2003 submittal. In this revision, the State rewrote Utah Rule R307-150 to incorporate CERR requirements. The State also consolidated all inventory collection requirements into Utah Rule R307-150 and, as a result, repealed Utah Rules R307-155 and R307-158, where the prior inventory requirements were located. EPA is approving the version of Utah Rule R307-150-1,-2,-3,-5,-6, and -7, (but not -4 and -8) and the repeal of Utah R307-155 and Utah R307-158 as they appear in the State's December 1, 2003 submittal as meeting the requirements of the CERR.

The December 1, 2003 revision also included inventory requirements for the Regional Haze State Implementation Plan, which we are not acting on in this action. Specifically, Utah Rule R307-150-4 adopts reporting requirements for stationary sources in Utah to determine whether sulfur dioxide emissions remain below the SO₂ milestones established in the State Implementation Plan for Regional Haze. EPA is not acting on the provisions described in Utah Rule R307-150-4 in the December 1, 2003 submittal, as the Regional Haze regulatory requirements have changed since the 2003 submission. We promulgated revisions to the Regional Haze Rule in response to the court's opinion in Center for Energy and Economic Development (CEED) v. EPA, 398 F. 3d 653 (DC Cir. 2005). Those revisions impacted the method for Section 309 States to use to demonstrate that the milestones in their alternative program provide for better reasonable progress than best available retrofit technology (BART). Rather than act on the 2003 submittal, EPA will wait for Utah's regulations that address the revisions to the Regional Haze Rule.

Utah Rule R307-150-8 exempts specific Hazardous Air Pollutants (HAPs) emissions from being reported to the State if the HAPs emissions were emitted in amounts less than a specific amount. EPA is not acting on this section of Utah Rule R307-150 since the CERR does not require that HAPs emissions be reported to EPA.

Finally, Utah in its December 1, 2003 submittal moved its definition of “chargeable pollutant” from Utah Rule R307-415-9 to Utah Rule R307-101-2. The State's reasoning was to apply the definition to all sources subject to emission inventory requirements rather than limit the definition applicability to sources subject to the Title V Operating Permit program, described in Utah Rule R307-415-9. Moving the definition to Utah Rule R307-101-2 would provide for its application to all sources. EPA is not acting on this because EPA's approval is not needed and the revision does not affect the State's ability to comply with the CERR.

IV. Consideration of Section 110(l) of 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 toward attainment of the National Ambient Air Quality Standards (NAAQS) or any other applicable requirement of the Act. The Utah SIP revisions that are subjects of this document do not interfere with attainment of the NAAQS or any other applicable requirement of the Act. The September 7, 1999, and December 1, 2003 submittals EPA is acting on revise requirements for developing and submitting emission inventories by the State to EPA. As a result, they provide the ability to better explain to the public and regulated community the positive aspects of a consistent inventory program. It also provides public documentation of a source's emissions. Disclosure of emissions will provide sources with significant incentives to minimize their emissions, comply with their emission limits, and protect the NAAQS and increments. Therefore, section 110(l) requirements are satisfied.

V. Final Action

For the reasons expressed above, we are approving the following portions of Utah's submittals outlined in this action.

• Utah's Rule R307-221-1 as submitted to EPA on September 7, 1999
• Utah's Rule R307-150-1,-2,-3,-5,-6, and -7 (but not -4 and -8) and the repeal of Utah Rule R307-155 and Utah Rule R307-158 in their entirety as submitted December 1, 2003.

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 are filed. This rule will be effective March 16, 2009 without further notice unless the Agency receives adverse comments by February 13, 2009. If the EPA receives adverse comments, EPA will publish a timely withdrawal in the Federal Register informing the public that this rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. 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.

VI. 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 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 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.

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 March 16, 2009. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Carbon monoxide
• Incorporation by reference
• Intergovernmental relations
• Lead
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting
• Emission inventory and recordkeeping requirements
• Sulfur oxides
• Volatile organic compounds

Dated: November 24, 2008.

Stephen S. Tuber,

Acting Regional Administrator, Region 8.

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)(68) to read as follows:

§ 52.2320

Identification of plan.

* * * * *

(c) * * *

(68) On September 7, 1999 and December 1, 2003 the State of Utah submitted revisions to its State Implementation Plan (SIP) to incorporate the requirements of the Consolidated Emission Reporting Rule (CERR). The revisions update the State's emission reporting rules so that they are consistent with the revisions EPA made to the CERR on June 10, 2002.

(i) Incorporation by reference.

(A). Title R307 of the Utah Administrative Code, Rule 307-221 EMISSION STANDARDS: EMISSION CONTROLS FOR EXISTING MUNICIPAL SOLID WASTE LANDFILLS, Rule 307-221-1, Purpose and Applicability. Effective January 7, 1999. Published in the Utah State Bulletin, Volume 98, Number 22, November 15, 1998.

(B). Title R307 of the Utah Administrative Code, Rule 307-150 EMISSION INVENTORIES, Rule 150-1, Purpose and General Requirements; Rule 150-2 Definitions; Rule 150-3 Applicability; Rule 307-150-5 Sources Identified in R307-150-3(2); Rule 307-150-6 Sources Identified in R307-150-3(3); Rule 307-150-7 Sources Identified in R307-150-3(4). Effective December 31, 2003. Published in the Utah State Bulletin, Volume 23, Number 23, December 1, 2003.

(ii) Additional Material.

(A) October 15, 2002 letter from Richard Long, EPA Region VIII to Rick Sprott, Director, Utah Division of Air Quality (UDAQ) notifying UDAQ of the June 10, 2002 publication of the Consolidated Emission Reporting Rule (40 CFR Part 51, Subpart A) and the need for the State to update its emission inventory reporting requirements.