No. 28819: R307-401. Permits: Notice of Intent and Approval Order

DAR File No.: 28819
Filed: 06/16/2006, 07:32
Received by: NL

 

NOTICE OF REVIEW AND STATEMENT OF CONTINUATION

Concise explanation of the particular statutory provisions under which the rule is enacted and how these provisions authorize or require the rule:

Section 19-2-108 states that "The board shall require that notice be given to the executive secretary by any person planning to construct a new installation which will or might reasonably be expected to be a source or indirect source of air pollution or to make modifications to an existing installation which will or might reasonably be expected to increase the amount of or change the character or effect of air contaminants discharged..." Rule R307-401 sets forth the requirements that the owner or operator of a source of air pollution must address in giving notice to the executive secretary.

 

Summary of written comments received during and since the last five-year review of the rule from interested persons supporting or opposing the rule:

No comments have been received outside the comment period when Rule R307-401 has been amended. The only amendment since the last review was a Repeal and Reenactment, DAR No. 28325, published in the Utah State Bulletin on 12/01/2005; many comments were received at that time and are included here. COMMENT 1: Some of the permitting definitions that are currently located in Section R307-101-2 have been moved to Rule R307-401. Changes were made to those definitions that could affect the scope of the rule. The purpose of these changes is not clear. It is also not clear why corresponding definitions were not changed in Section R307-101-2. It is confusing to have slightly different definitions in the two rules. RESPONSE 1: One of the goals of the rewrite of Rule R307-401 was to separate requirements that are part of Utah's comprehensive new source review (NSR) program (minor NSR) from those that are coming from the federal major source NSR program (major NSR). In general, Rule R307-401 uses terms that were adopted as part of the major NSR program so that there is some consistency within the permitting program. The major NSR terms have been used for the broader range of sources and pollutants that are covered under the minor NSR program. The proposed changes to definitions mirror the Division of Air Quality (DAQ)'s current interpretation of Rule R307-401 as it applies to the minor NSR program, and the changes reflect the broader applicability of the minor NSR program. There were some changes to the definitions to better reflect how these terms have been used in the minor NSR program. DAQ does not believe that these changes in definitions will affect how the minor NSR program has been historically implemented. In addition, when these definitions were moved to Rule R307-401, they were realigned with the major NSR definitions whenever possible. Over the years, DAQ's definitions that were originally based on the federal definitions have been modified to improve grammar or readability. Because the PSD permitting program in Rule R307-405 will now incorporate the federal definitions by reference, DAQ believed that it was important to match those definitions, to the degree possible, with the corresponding definitions in Rule R307-401. This is important because the minor source and major source programs must operate in parallel. DAQ does not believe that these changes will affect how the minor NSR program has historically been implemented. The comments and responses on specific definitions follow: 1a) "Actual emissions" -- The term "pollutant" was changed to "air contaminant" thereby increasing the scope of the definition. The reference to a 2-year period was changed to a 24-month period. The provisions that apply to electric utility steam generating units were removed. RESPONSE 1a: These changes do not affect how the rule is implemented. A modification requires PSD review if the increase in actual emissions is significant. For this reason, the term "actual emissions" is very critical to the PSD program. However, under the minor NSR program, the term "actual emissions" is not used to determine whether a modification requires an approval order. Instead, Rule R307-401 requires an approval order if a change is made that "will or might reasonably be expected to increase the amount of or change the effect of, or the character of, air contaminants discharged." The term "actual emissions" is used only to determine when a source is considered "de minimis" (see proposed Section R307-401-9). Within this context, language that is specific to electric utility steam generating units and to pollutants that are regulated under the Clean Air Act has no meaning, and was therefore removed from the definition as part of the overall rule clean up. The final point raised about the change from a 2-year period to 24-month period will have no effect within the context of determining if a source is de minimis because a source must continue to stay below the cutoff level in the future to maintain its status as a de minimis source. 1b) "Construction" -- the definition has minor editorial changes. Why are these changes made here and not in the corresponding definition in Rule R307-101? RESPONSE 1b: As described above, the changes were made to align the definition with the language that is incorporated by reference in the PSD rule. The changes were not made to the corresponding definition in Section R307-101-2 because that definition applies to the major NSR program for nonattainment areas in Rule R307-403. DAQ has delayed revisions to Rule R307-403 because any changes to that rule are complicated by uncertainties of how NSR will apply for the new National Ambient Air Quality Standards (NAAQS). DAQ plans to bring Rule R307-403 to the Board at a later date to address the NSR reform provisions and the new NAAQS and will review the definitions in Section R307-101-2 at that time to make them consistent with the federal language. 1c) "Emissions unit" -- the definition was changed to refer to emissions of "air contaminants" rather than "pollutants subject to regulation under the Clean Air Act." This expands the scope of the definition. RESPONSE 1c: Rule R307-401 applies broadly to "installations" that emit air contaminants. The term "emissions unit" is used in definitions that were adopted as part of the PSD program. DAQ has never interpreted the reference to pollutants regulated under the Clean Air Act to limit the applicability of the minor NSR program that comes directly from the Utah Air Conservation Act. The change merely clarifies how the definition has been used for the minor NSR program. 1d) "Fugitive emissions" -- the definition has been narrowed to include only emissions which could not reasonably pass through a stack. The current definition describes fugitive emissions as "emissions from an installation or facility which are neither passed through an air cleaning device nor vented through a stack or could not reasonably pass through a stack." RESPONSE 1d: The definition was changed to match the language that is incorporated in the PSD rule. Within the context of Rule R307-401, there is no change in the implementation of the rule because of how the term is used. 1e) "Potential to emit" -- the definition was changed to refer to emissions of "air contaminants" rather than "pollutants subject to regulation under the Clean Air Act." This expands the scope of the definition. RESPONSE 1e: Rule R307-401 applies broadly to "installations" that emit air contaminants. The term potential to emit is used in definitions that were adopted as part of the PSD program. DAQ has never interpreted the reference to pollutants regulated under the Clean Air Act to limit the applicability of the minor NSR program that comes directly from the Utah Air Conservation Act. The change merely clarifies how the definition has been used for the minor NSR program. 1f) "Secondary emissions" -- the definition was changed to remove language that "secondary emissions must be specific, well defined, quantifiable, and impact the same general area as the source or modification which causes the secondary emissions." This expands the scope of the definition. RESPONSE 1f: The definition was changed to match the definition that was incorporated by reference in the PSD rule. The specific language described above came originally from the major NSR rule for nonattainment areas. It is not clear why this definition is different in that rule. However, in the context of Rule R307-401 there is no effect on how the program is implemented because the term "secondary emissions" is used only in the definition of potential to emit, that states "Secondary emissions do not count in determining the potential to emit of a stationary source." Within this context, aligning the definition with the PSD definition does not change how the rule is implemented. 1g) "Best available control technology" and "indirect source" -- these definitions had minor revisions. RESPONSE 1g: The definitions were aligned with the definitions in the PSD rule. The changes were very minor and do not affect implementation of the rule. 1h) "Stationary source" and "building, structure, facility, or installation" -- these are new definitions. They refer to air contaminants and would expand the scope of the rule. RESPONSE 1h: Section R307-101-2 contains a definition for the term "source" that combines the two terms "stationary source" and "building, structure, facility, or installation" that are used in the PSD rule. In this rulemaking, the terms were separated to match the PSD rule, and this does not affect the usage of these terms. Rule R307-401 clearly applies to installations that emit "air contaminants" rather than being limited to pollutants that are regulated under the Clean Air Act. The applicability language comes directly from the Utah Air Conservation Act. The PSD program, on the other hand, applies only to the narrower group of pollutants. DAQ has used this broader authority in the minor NSR program to regulate air contaminants that would have a local impact, but are not yet addressed nationally. DAQ recommends making some changes to the proposed language in Rule R307-401 to clarify that an approval order is required for "installations" rather than "stationary sources" to conform with the language in the Utah Air Conservation Act. This will ensure that the proposed rule change does not inadvertently change the applicability language that is currently used in R307-401. COMMENT 2: In a number of places in proposed Rules R307-401 and R307-405, when specifying what the executive secretary is to do, the term "shall" has been replaced by the term "will." Does this imply that the executive secretary is not required to take the actions specified in the rule? RESPONSE 2: The term was changed to reflect the legal authority of the rule. The State cannot regulate itself, and therefore the use of the term "shall" is not appropriate and does not have any greater meaning than the term "will." The rules are intended to regulate sources. However, it is important to describe in the rule how the executive secretary will review applications, seek public comment, etc. If the executive secretary does not follow the process established in the rule, there is not an enforcement action (penalties, etc.) against the executive secretary. However, the underlying statutes (Air Conservation Act, Administrative Procedures Act, etc.) would govern the actions of the State. If the language was adopted into the federal SIP, then EPA could also take action against the State, such as withdrawing approval of the permitting program. If the executive secretary does not follow the established procedures, then any action could be challenged as being an arbitrary implementation of the rule. So, in summary, the terms were changed to better reflect the legal authority of the rule, but the use of the term "will" does not change the legal obligation of the executive secretary to follow the established procedures. COMMENT 3: In proposed Subsection R307-401-14(3), "his representative" should be changed to the "executive secretary's representative," consistent with many other parts of the rules. RESPONSE 3: The change has been made as recommended. COMMENT 4: Cross references in Subsections R307-401-15(1)(b) and R307-401-16(2) need to be corrected. RESPONSE 4: The change has been made as recommended. COMMENT 5: References to temporary relocation in Subsections R307-401-9(4) and R307-401-17 (last sentence) need to be updated from Section R307-401-16 to R307-401-17. RESPONSE 5: The change has been made as recommended. COMMENT 6: The requirement in current Section R307-401-4 to send a copy of the Notice of Intent (NOI) to EPA, local officials, federal land managers (FLMs) or Indian Governing Bodies has been removed. RESPONSE 6: The language referenced by the commentor came from the PSD SIP requirements in 40 CFR 51.166(q) and has been incorporated by reference into Section R307-405-18. Although the language applied broadly to all NOIs in the current rule, in practice DAQ has not followed this procedure for minor sources and minor modifications. With the change in the rule, the minor NSR program will operate under Utah public review and comment procedures. There will be no change to the current public notification practices. COMMENT 7: Utah needs to clarify whether removing the requirement for Board approval of permits that consume more than 50% of the increment would impact maintenance of the PSD increments and to state that the provisions is not required by federal regulations. RESPONSE 7: The current provision in Subsection R307-401-6(3) that requires approval by the Board for a permit that consumes more than 50% of the increment is not required by federal regulations. Removing this provision will not affect maintenance of the PSD increments because 40 CFR 52.21(k), incorporated by reference in Section R307-405-12, requires that the proposed source or modification would not cause or contribute to air pollution in violation of the increment. Approval by the Board was an additional administrative step that did not directly affect the amount of increment consumed by a project. COMMENT 8: The current rule does not allow a small source exemption for any source that has a potential to emit that would make it a major stationary source. It appears that this provision provides a necessary limit on sources eligible for the exemption and should be retained. RESPONSE 8: The small source exemption in the proposed Section R307-401-9 applies to sources with actual emissions that are less than 5 tons/year for any air contaminant or 500 pounds/year of any hazardous air pollutant (HAP). These levels are well below the 100 tons/year potential to emit (PTE) cutoff for major sources as defined in Section R307-101-2. It is unlikely that a source with such low actual emissions would have a high PTE. However, if such a source did exist, Section R307-401-9 requires the source to submit a NOI within 6 months if the source emits more than 5 tons/year of any air contaminant in any year. In addition, the major source permitting requirements in Rules R307-405 and R307-403 are not affected by this exemption, so a major source or major modification would still be required to obtain a permit. The reference to major sources was removed from the small source exemption because it did not provide any added regulatory value, and the definition of major source is complex. COMMENT 9: EPA recommends that small source exemption registry be made mandatory instead of voluntary to maintain an accurate registry and emissions inventory. RESPONSE 9: The small source registry is essentially a list of all of the sources that are not required to receive an approval order. Under Utah's statute, any source of air pollution could potentially be required to obtain an approval order, but DAQ has never required extremely small sources, such as an auto parts degreaser at a repair shop or a homeowner's lawnmower, to obtain an approval order. It is not possible to maintain a complete registry because the list of sources would range from those with 4.99 tons/year of emissions to those with 1 pound/year of emissions. EPA does not require a similar registry for national programs. Instead, the national programs focus on the sources that meet the applicability requirements. Under Utah's rules, and national regulations, a source faces enforcement action if they do not comply with a rule if they meet the applicability requirements. DAQ has maintained a registry in the non-attainment area, even though it is not complete. However, the registry has been useful for compliance staff because they can determine whether an applicability review has already been completed for a source. DAQ has found that many sources in attainment areas are already requesting documentation from DAQ that they qualify for the small source exemption for their own tracking purposes. DAQ believes that sources will continue to voluntarily register with the state to avoid unnecessary compliance scrutiny, and we will no longer have a regulatory requirement that is not practicably enforceable for very small sources.

 

Reasoned justification for continuation of the rule, including reasons why the agency disagrees with comments in opposition to the rule, if any:

As specified in Section 19-2-108, the Air Quality Board shall require that a new or modifying source of air pollution notify the executive secretary when intending to construct a new source or modify and existing source. Rule R307-401 is the Board's rule to require the notice, specify its contents, and determine the timetable for the executive secretary's response to that notice. Therefore, this rule should be continued.

 

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Environmental Quality
Air Quality
150 N 1950 W
SALT LAKE CITY UT 84116-3085

 

Direct questions regarding this rule to:

Jan Miller at the above address, by phone at 801-536-4042, by FAX at 801-536-0085, or by Internet E-mail at [e-mail]

 

Authorized by:

M. Cheryl Heying, Planning Branch Manager