Approval and Promulgation of State Implementation Plans: Utah; Stack Height Analyses and Regulations and SOINF2 Nonattainment Plan

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[UT4-1-6465 and UT2-1-6694; FRL-5119-1]

Approval and Promulgation of State Implementation Plans: Utah;

Stack Height Analyses and Regulations and SO2 Nonattainment Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: In this action, EPA is approving two revisions to the Utah

State Implementation Plan (SIP): Section 16, Stack Height

Demonstration, and Section 9, Part B, Sulfur Dioxide. Sections 16 and 9

were submitted by the Governor of Utah in letters dated December 23,

1991, and May 15, 1992, respectively. The revisions to Section 16 were

to address the stack-height demonstration requirements for the

Kennecott Minerals Company Smelter near Magna, Utah. Minor corrections

to the other stacks in the State were also made. Section 9, Part B was

revised to be consistent with Section 16. Prior to the revision, the

SO2 attainment demonstration for Salt Lake County and portions of

Tooele County was based on multipoint rollback emission rates at the

Kennecott smelter. The PM10 SIP adopted for Salt Lake County in

1991 established significantly lower emission rates (which would meet

the 24-hour National Ambient Air Quality Standard (NAAQS) for the

smelter based on reasonable available control technology (RACT).)

Section 16 and Section 9, Part B needed to be consistent with the

PM10 SIP (the PM10 SIP is located in Section 9, Part A). In

addition, Section 9 Part B was revised to include an analysis and the

emission limitation that would demonstrate attainment of the 3-hour

secondary NAAQS. General SO2 regulations initially determined as

deficient with respect to meeting the statewide SO2 SIP

requirements are also being approved.

EFFECTIVE DATE: January 13, 1995.

ADDRESSES: Copies of the documents relevant to this proposed action are

available for public inspection between 8:00 a.m. and 4:00 p.m., Monday

through Friday, at the following office: Environmental Protection

Agency, Region VIII, Air Programs Branch, 999-18th Street, suite 500,

Denver, Colorado 80202-2466.

FOR FURTHER INFORMATION CONTACT: Lee Hanley at (303) 293-1760.

SUPPLEMENTARY INFORMATION:

I. Background

A. Regulatory History and Regulatory Requirement for Stacks Greater

Than GEP

On February 8, 1982 (47 FR 5864), EPA promulgated final regulations

limiting stack height credits and other dispersion techniques as

required by section 123 of the Clean Air Act (CAA). As a result of a

court challenge, EPA promulgated revisions to the stack height

regulations on July 8, 1985 (50 FR 27892). The revisions redefined a

number of specific terms including ``excessive concentrations,''

``dispersion techniques,'' ``nearby,'' and other important concepts,

and modified some of the bases for determining good engineering

practice (GEP) stack height credit.

Subsequent to the July 8, 1985 promulgation, the stack height

regulations were again challenged in NRDC v. Thomas, 838 F.2d 1224

(D.C. Cir. 1988). On January 22, 1988, the U.S. Court of Appeals for

the D.C. Circuit issued its decision affirming the regulations, for the

most part, but remanding three provisions to the EPA for

reconsideration. These are:

1. Grandfathering pre-October 11, 1983 within-formula stack height

increases from demonstration requirements (40 CFR 51.100(kk)(2));

2. Dispersion credit for sources originally designed and

constructed with merged or multiflue stacks (40 CFR

51.100(hh)(2)(ii)(A)); and

3. Grandfathering pre-1979 use of the refined H + 1.5L formula (40

CFR 51.100(ii)(2)).

However, none of these provisions is at issue here.

GEP has been established by the regulations to be the greater of:

(1) 65 meters; (2) the height derived through application of one of two

formulas which base GEP on the dimensions of nearby buildings; or (3)

the height demonstration through a field study or fluid modeling

demonstration to be necessary to avoid excessive concentrations of any

air pollutant due to downwash, eddies, or wakes caused by the source

itself or nearby buildings or terrain obstacles (40 CFR 51.100(ii).

Where EPA or a State finds that a source emission limit is affected by

dispersion from a stack in excess of GEP, the State must then model to

establish an emission limit which will provide for attainment of the

NAAQS when stack height credit is restricted to GEP.

The reader is referred to 59 FR 18341, April 18, 1994, for

additional information on the regulatory history and regulatory

requirement for stacks greater than good engineering practice (GEP).

B. The 1981 and 1986 SIP Submittals

1. The 1981 SO2 SIP Submittal

A Utah SO2 SIP revision was submitted with a letter dated

August 17, 1981, by the Governor of Utah to address the attainment of

the SO2 NAAQS in Salt Lake County and portions of the

nonattainment area in Tooele County. Additional information was

submitted by the State on December 7, 1981, and January 25, 1983. On

February 7, 1983, the Governor submitted a request to redesignate all

of Salt Lake County and the nonattainment portion of Tooele County to

attainment. On March 23, 1984 (49 FR 10926), EPA proposed to delay any

action on the request to redesignate the area to attainment until final

resolution of several issues. A detailed discussion of this SIP

revision is contained in the March 23, 1984 notice of proposed

rulemaking and should be used as a reference for additional

information.

The control strategy for the 1981 SIP has several parts: (1)

Emission limitations on several low-level stacks at the smelter (e.g.,

boilers and heat treaters); (2) reasonably available measures to

control or eliminate fugitive emissions; and (3) cumulative emission

limits for the main stack (see additional discussion on these emission

limits in 2.b. below). The State's strategy was based upon measured

ambient data in the lower elevation near the smelter. EPA identified

the major deficiencies of the State analysis: (1) The State made no

attempt to demonstrate the effects in the upper elevation (above 5600

feet in the Oquirrh Mountains); and (2) the database at the smelter was

insufficient to be used reliably with the established emission limits,

given the assumption in the development of the emission limits

technique. Modeling analyses performed by the State and EPA to

demonstrate attainment in the upper elevation were screening analyses

only. EPA concluded that dispersion modeling in this complex terrain

was unreliable and that the only method that could be used for this

determination was monitoring. The 1981 SO2 SIP was conditionally

approved on the assumption that the emission limits were consistent

with federal 1985 stack height rules and, therefore, adequate for

attainment of the SO2 NAAQS. The redesignation of the area to

attainment was denied. (50 FR 7059, February 20, 1985)

2. The May 2, 1986 GEP SIP Submittal

The Utah Stack Height SIP was submitted by the Governor with a

letter dated May 2, 1986. The submittal included regulations to

address: (1) GEP stack height credit and dispersion techniques; (2) a

new Section 17 of the SIP that listed all existing stacks in Utah

greater than 65 meters; and (3) a technical support document for

Section 17 of the SIP. The Kennecott Magna stack analyses were part of

this submittal. Subsequent submittals to support the Kennecott analyses

were received in letters dated October 6, 1986, December 3, 1986,

November 13, 1987, and May 17, 1988. The Kennecott smelter stack height

credit was a significant component of the Utah SO2 SIP emission

limits conditionally approved on February 20, 1985.

a. Applicability of the NSPS Regulation. The federal NSPS

regulation for primary copper smelters applies to any such facility

that commences construction or modification after October 16, 1974 (42

FR 37937, July 25, 1977, and 40 CFR 60.160). Modification generally

means any physical or operational change which results in an increase

in the emission rate to the atmosphere.

The Kennecott Magna smelter expansion/modification began in the

early 1970s, with a commitment to the 1215-foot stack in 1973 and

completion of the project in 1977. The modification of the acid plant

system resulted in an increase from 60% sulfur capture to 86%,

approximately a 65% reduction of sulfur emissions. Based on this

information, EPA concluded that the 1970's Kennecott expansion/

modification did not subject the smelter to NSPS requirements.

b. Analyses on the 1986 Submittal. The Kennecott stack height

analyses were undertaken to comply with the July 8, 1985 stack height

regulation, as well as the condition specified in the approval of the

Utah SO2 SIP. The reader should refer to the February 2, 1985

final conditional approval (50 FR 7056) and March 23, 1984 proposed

approval (49 FR 10946) Federal Register actions for additional

information on the Utah SO2 SIP.

Kennecott originally had two 400-foot stacks (grandfathered stack

heights) from which SO2 emissions from the smelter were vented.

The 1970's modification/expansion included the replacement of the 400-

foot stacks with a single 1215-foot stack. The GEP formula height (H +

1.5 L), considering the nearby buildings, is 212.5 feet.

The initial Kennecott GEP demonstration was submitted on May 2,

1986, with subsequent submittals on October 6, 1986, December 3, 1986,

November 13, 1987, and May 11, 1988. There are two basic parts to the

Kennecott analyses: the GEP demonstration and BART analysis. The GEP

demonstration consists of three subparts: the fluid modeling protocol,

the fluid modeling results, and an evaluation of the fluid modeling

results with respect to the stack height regulations. The BART analysis

is performed if the source contends that the NSPS emission limits are

infeasible. Relevant factors for this analysis include: high cost-

effectiveness ratio, excessive local community impact, excessive plant

impact, and technological infeasibility. Kennecott provided responses

to all the BART factors mentioned above. The cost-effectiveness ratio

and technical infeasibility issues, however, were determined critical

to this review because of their relationship to the emission

limitations used in the GEP analyses.

Since the Kennecott emissions, as established through Multi-point

Rollback (MPR), were used in the 1981 SO2 SIP, EPA's primary

concern, with the use of any emission rate in the demonstration of GEP,

is ensuring protection of the NAAQS (i.e., to protect health and

welfare). The basic concept behind GEP is to prevent sources from using

illegal dispersion techniques to avoid emissions controls.

Kennecott provided extensive data on its GEP analyses. The reader

is referred to 53 FR 48942 for information on the GEP demonstration and

BART analysis. To summarize, the GEP demonstration showed that the

existing stack height of 1215-foot (370.4m) met the 40% criterion due

to terrain effects and an exceedance of the NAAQS at MPR emission

rates. (Discussion of the MPR emission rates for Kennecott can be found

in 49 FR 10948, March 12, 1983, proposed rulemaking). MPR is a

technique designed for sources with variable emission rates (e.g.,

smelters). MPR allows for a frequency distribution of emission rates

which will permit extremely high emissions on rare occasions. The MPR

methodology is constructed around the recognition that any control

strategy will have a predictable probability of allowing a violation of

the NAAQS. The MPR is based upon allowing a 26% probability of

recording a violation (Additional information on MPR is found in

Appendix A). The GEP demonstration satisfies the excessive

concentration criteria in EPA's regulation if MPR reflects the proper

emission rates. After review, EPA concluded that Kennecott's analyses

were acceptable, since Kennecott performed a fluid modeling study

consistent with existing guidance and the study was approved by EPA.

Application of the level of control required by NSPS would reduce

the emissions of SO2 at Kennecott during the stable process phase,

but would not affect emission rates under startup, shutdown,

malfunction, and upset conditions. This is because the NSPS emission

rate is for normal operations and excludes such process conditions. MPR

includes startup, shutdown, malfunction, and upset conditions. From the

Kennecott assessment, considering only long-term averages, the cost

portion is consistent with the tons of SO2 reduction expected from

similar NSPS applications. In the Kennecott BART analysis, the

controlling emissions for the determination of GEP appear to be those

under upset, start-up, shutdown, and malfunction. Therefore, while

there would be no difference in the emission rates under these

conditions as a result of meeting NSPS, there would be a substantial

additional cost to control these emissions.

In summary, the emissions at the smelter from startups, shutdowns,

upsets, and malfunctions are included in the MPR emission limits and

could be considered in the NAAQS attainment and GEP analyses.

Application of NSPS technology will not affect these emission rates and

will, therefore, result in no change in demonstrating GEP. It may be

possible to reduce annual emissions by requiring additional controls on

the smelter, but such reduction would have no relevance to the limiting

case for determination of GEP.

Given the above discussion, EPA proposed to approve (53 FR 48942,

December 5, 1988) the Kennecott analysis in the Utah GEP SIP submitted

on May 2, 1986, with subsequent submittals on October 6, 1986, December

3, 1986, November 13, 1987, and May 17, 1988. However, EPA's review was

conducted under a specific assumption: That the emission rate(s) in the

SO2 SIP were sufficient to demonstrate attainment. That assumption

followed another critical assumption: That Kennecott owned or

controlled the lands in the upper elevation for which no monitoring

data exist to demonstrate attainment of the NAAQS.

Only one comment was received in response to the December 5, 1988

Federal Register proposed approval of the Kennecott GEP demonstration.

The comment was from Kennecott in support of this action. However,

prior to publication of the proposed approval Federal Register, EPA did

receive a letter from a landowner in the Oquirrh Mountains expressing

concerns due to the lack of ambient monitoring in the nonattainment

area. This was EPA's first documented information on public access in

the nonattainment area other than the Kennecott operation. EPA

proceeded to continue its evaluation of the State submittal and to

publish its position on the GEP demonstration based on the State

submittal, but initiated a reevaluation on land ownership above the

5600-ft. elevation in the Oquirrh Mountains. Documentation on the claim

of land ownership, other than that of the Kennecott operations, was

provided by Howard Haynes, Jr. in March 1989.

3. Utah 1981 SO2 and 1986 GEP SIP Reassessment

Data from the Salt Lake County and Tooele County Assessor offices

showed over 80 landowners in this nonattainment area. Kennecott, in its

land ownership research, verified the list of landowners.

One of the critical assumptions of the conditional approval of the

1981 SO2 SIP and the emission rate was Kennecott's ownership or

control of those lands in the potential nonattainment area in the

Oquirrh Mountains. The land ownership research revised the EPA's

earlier assumptions on the adequacy of the 1981 SO2 and the 1986

GEP Stack SIPs.

EPA entered into discussions with Kennecott and the State for

resolution of these issues and attempted to outline the procedures for

addressing the SO2 and GEP SIPs. During these negotiations, the

State was developing the PM10 SIP for Salt Lake County. The Salt

Lake County PM10 SIP development process identified SO2 as a

precursor for PM10. (Precursors are secondary particles which are

formed in the atmosphere from gases which are directly emitted by the

source. Sulfates are one of the most common secondary particles in a

PM10 nonattainment area and result from sulfur dioxide emissions.)

The Kennecott smelter SO2 emissions comprised 56% of

the total (primary and secondary) PM10 emissions in Salt Lake

County.

The PM10 SIP was adopted by the State in August 1991 and

submitted to EPA in November 1991. The reader is referred to 59 FR

35036, July 8, 1994, for information on the PM10 SIP. The

PM10 SIP required significant emission reduction for the Kennecott

operations (refinery, concentrator, mine, power plant and smelter). The

Kennecott smelter emission limits were reduced from 76,000 tpy or

18,000 lb/hr annual average (as allowed in the 1981 SO2 and 1986

GEP SIPs) to 18,500 tpy (which includes fugitive emissions,

and applies to the entire smelter). The 1981 SO2 and 1986 GEP SIPs

addressed emissions from smelter processing units and SO2

collection and removal equipment vented to the smelter tall stack. They

did not include fugitive emissions. For clarification, the 76,000 tpy

was reduced to the 14,191 tpy limit on the 1215-foot stack for

emissions from the smelter processing units and SO2 collection and

removal equipment.

D. The 1991 GEP and 1992 SO2 SIP Submittals

Prior to the State's adoption of the PM10 SIP, EPA discussed

the uncertainties of finalizing the 1986 GEP SIP with the State and

Kennecott. In a letter dated July 18, 1991, EPA clarified its position

on the need for consistency within the Utah SIP with respect to

emission limitations at the Kennecott smelter. EPA stated that it could

not knowingly and legally proceed to approve a regulation and emission

limitation that were no longer applicable, or a stack height

demonstration analysis based on an obsolete regulation or emissions

limitation.

In a letter dated December 23, 1991, the Governor of Utah submitted

a revision to Section 16, Demonstration of GEP Stack Height, of the

Utah SIP. The 1991 submittal was received on December 30, 1991. On

February 28, 1992, EPA advised the Governor of Utah that this submittal

was administratively and technically complete in accordance with the

Federal SIP completeness criteria.

The revisions to Section 16 specify the allowable emission limit

for the 1215-foot main stack at 14,191 tons/year as derived in the

PM10 SIP. This emission limit is based on double contact acid

plant technology (which is considered NSPS for the smelter acid plant

tail gas), significant capture improvement of fugitive emissions, and

improved operation and maintenance. The 1991 submittal also contained a

reanalysis of other sources in the State for which stack heights above

the de minimis level (65m) were previously reported. (These sources'

stack heights were published in 54 FR 24334, June 7, 1989.)

EPA found minor changes between the June 7, 1989 Federal Register

and the 1991 revision to Section 16 for the ``actual'' stack height of

some sources. EPA is not concerned with these minor changes since they

could be attributed to errors in rounding and the stack height changes

are less than one foot. Listed below are the differences between the

June 7, 1989 Federal Register and the 1991 submittal:

------------------------------------------------------------------------

1991

Source 6/7/89 FR revision

------------------------------------------------------------------------

Deseret Units 1 & 2......................... 182.9 m..... 182 m

UP&L Hunter Units 1 & 2..................... 183.08 m.... 183 m

UP&L Hunter Unit 3.......................... 183.1 m..... 183 m*

UP&L Huntington Units 1 & 2................. 182.93 m.... 183 m

IPP Units 1 & 2............................. 216.46 m.... 216 m

Chevron USA HCC cracker..................... 1946*....... 1950**

------------------------------------------------------------------------

*The State indicated very insignificant changes to these sources

``calculated'' GEP stack heights; the State has indicated that the

``actual'' height will be the enforceable stack height.

**Correction of grandfathered date.

The State's revised analyses are presented in the table below.

Detailed documentation for these analyses and the corresponding EPA

review is contained in the EPA technical support document and air

compliance files, and the State files.

------------------------------------------------------------------------

Allowable SO2

Source name Stack emissions

height (M) (ton year)

------------------------------------------------------------------------

Deseret Units 1&2............................ 182 1,512

U.P.&L. Hunter Units 1&2..................... 183 4,347

U.P.&L. Hunter Unit 3........................ 183 1,283

U.P.&L. Huntington Units 1&2................. 183 9,448

I.P.P. Units 1&2............................. 216 17,870

U.P.&L. Gadsby Units 1,2&3................... 76.2 67.7+

Geneva Steel blast furnaces 1&2.............. 79.2 12.5+*

Geneva Steel Coke blast furnace.............. 68.6 .............

Geneva Steel Coke Combustion 1-4............. 76.2 102.8+

Kennecott Utah Copper Smelter Main Stack..... 370 14,191+*

Chevron USA HCC Cracker Cat. Dis............. 88.4 66.7+

Chevron Research Air Heater.................. 69.8 0

Chevron Research Retort...................... 69.8 0+

Amax melt reactor............................ 76.22 0

Amax electrolytics........................... 76.22 0

Amax emergency off gas....................... 76.22 0

Amax spray dryers 1-3........................ 76.22 83

Phillips thermal cat. cracking............... 80.8 3.5+

White River Shale Lift Pipes................. 76.2 -

White River Elutriators...................... 76.2 -

White River Hydrogen Plant................... 76.2 -

White River Power Plants..................... 76.2 -

White River Ball Heaters..................... 76.2 1,180.8*

Tosco Preheat Stacks......................... 95 -

Tosco Warm Ball Elutriators.................. 95 -

Tosco Process Shale Wetters.................. 95 1,166.6*

------------------------------------------------------------------------

+SO2 emissions derived from the PM10 SIP adopted August 14, 1991.

*The total SO2 emissions are given for these sources.

On May 15, 1992, the Governor of Utah submitted a revision to

Section 9, Part B, Sulfur Dioxide, Utah SIP. The revision was to

address the 1990 CAA requirement that a SIP revision be submitted by

May 15, 1992, for any area that did not have a fully approved SIP (the

1981 SO2 SIP was only conditionally approved). The significant

changes in this SIP revision from that of the 1981 submittal are as

follows:

a. The MPR emission limitations and assumptions are removed and

replaced with the emission limitation which can be achieved using the

NSPS technology, double contact acid plant, or the equivalent of NSPS.

(NSPS is the presumptive norm for RACT for this facility.) The SO2

SIP now references the same emission limitations as those stated in

PM10 SIP.

b. The SO2 NAAQS are the 0.14 ppm, 24-hour primary standard,

and the 0.5 ppm, 3-hour secondary standard. The 24-hour impact analysis

was a rollback analysis which compared the smelter emissions in 1991

(PM10 SIP emission limitation) with 1979 emissions. The State had

monitoring data showing attainment at Lake Point (an area originally

defined as ambient air and owned by the Bureau of Land Management, but

now owned by Kennecott) where exceedances were recorded. The Lake Point

site could be considered representative of the closest point in the

elevated terrain that would be impacted by the tall stack emissions.

Demonstrating attainment at Lake Point would technically support the

attainment elsewhere in the elevated terrain that is considered ambient

air. The area considered ambient air in the elevated terrain is a

significant distance downwind from Lake Point.

c. The PM10 SIP addressed, to some degree, the 3-hour impact.

The PM10 SIP emission limitation was based on a 24-hour SO2

limit; this emission limitation would be achieved through a given lb/hr

calculated on a 6-hour average. The 24-hour limit was considered

``controlling'' for PM10 and SO2 (i.e., the 24-hour

limitation was believed to be the level of control necessary for

PM10 attainment, as well as for the SO2 attainment

demonstration). The SO2 SIP established a 3-hour limitation and

verified that such limitation would protect the 3-hour NAAQS.

d. Section 4.2 of the Utah Air Conservation Regulations was revised

to include a 24-hour averaging period for the sulfur content of coal,

fuel oil, and fuel mixtures, and to specify the ASTM methods to be used

to demonstrate compliance with the limitation and reporting

requirement. (The previous rule specified a limit for the sulfur

content of fuels, but did not specify an averaging time or specific

ASTM methods.) Section 4.6 was also revised to include a 3-hour

averaging time for Sulfur Burning Production Sulfuric Acid Plants.

e. Specific regulations which provided for special consideration

(including malfunction provisions) on the smelter fluctuating operation

are removed. Malfunction provisions for the Kennecott smelter operation

are now the same as for any stationary source in Utah. This issue was

addressed during the PM10 SIP development and is being approved

under the PM10 SIP federal approval process. These regulation

impacts were clarified in this SIP revision.

II. Final Action

This document makes final the action at 59 FR 18341, April 16,

1994. No adverse public comment was submitted with the proposed action.

As a direct result, the Regional Administrator has reclassified this

action from Table I to a Table III under the processing procedures

established at 54 FR 2214, January 19, 1989.

The December 23, 1991 Section 16, Stack Height revision and the May

15, 1992 Section 9, Part B, SO2 revision are consistent with other

provisions in the State-wide SIP. EPA is approving these revisions

because they are consistent with EPA guidance for GEP stack height

demonstration and the attainment demonstration for the SO2 NAAQS.

General SO2 regulations initially determined as deficient with

respect to meeting the statewide SO2 SIP requirements are also

being approved.

These revisions resolve EPA's concerns regarding ambient air,

attainment demonstration in the elevated terrain, and the

enforceability issues related to the smelter operations. The previous

emission limitations have been the subject of litigation filed by the

Environmental Defense Fund. The legal actions have been stayed pending

EPA final action on the past SIP revisions. The 1991 and 1992 revisions

are believed to have settled the litigants' concerns about applying

reasonable control technology and demonstrating attainment per the

traditionally accepted federal requirements (i.e., application of RACT

(double contact acid plant or the equivalent), monitoring

demonstration, etc).

The May 15, 1992 submittal also contained an updated Appendix A.2.1

(Emission Limitations and Operating Practices for Davis and Salt Lake

Counties). EPA is not acting on this part of the submittal since no

information on the stationary source updates was provided with this

submittal. In addition, EPA's review during the State's public hearing

for the SO2 SIP did not include information on these emission

limitations.

Since State adoption of this SO2 and Stack Height SIPs, the

State has been finalizing the permit conditions for these SO2

sources. EPA has advised the State on the need to ensure consistency

with the State's permits and the federally enforceable SIP. The State's

permit program is in the federally approved SIP. The final approval to

the SO2 and Stack Height SIPs will also make the emission

limitations for these stationary sources federally enforceable. EPA is

giving notice that should different emission limitations exist, EPA

will enforce the more stringent of the two (or more) emission

limitations. EPA must have assurance that the attainment demonstration

of a nonattainment area plan is maintained. The less stringent emission

limitation may not provide that assurance without a reanalysis of the

attainment demonstration. It is, therefore, critical that the State

maintain consistent emission limitations in the permits and in the

federally approved nonattainment area plan and update the emission

limitations section of these plans to ensure clarity and consistency in

the Statewide SIP. The tracking of this effort will be documented

annually in the EPA/State Agreement.

Regulatory Process

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over population of less than

50,000.

SIP approvals under section 110 and subchapter I, part D of the CAA

do not create any new requirements, but simply approve requirements

that the State is already imposing. Therefore, because the federal SIP-

approval does not impose any new requirements, I certify that it does

not have a significant impact on any small entities affected. Moreover,

due to the nature of the federal-state relationship under the CAA,

preparation of a regulatory flexibility analysis would constitute

federal inquiry into the economic reasonableness of state action. The

CAA forbids EPA to base its actions concerning SIPs on such grounds.

Union Electric Co. v. U.S. E.P.A. 427 U.S. 246, 256-66 (S.Ct. 1976); 42

U.S.C. 7410(a)(2).

Under section 307(b)(1) of the CAA, petitions for judicial review

of this action must be filed in the United States Court of Appeals for

the appropriate circuit by February 13, 1995. 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)).

Executive Order 12866

The OMB has exempted these actions from review under Executive

Order 12866.

List of Subjects in 40 CFR Part 52

Air pollution control, Environmental protection, Incorporation by

reference, Reporting and recordkeeping requirements, Sulfur dioxide.

Note: Incorporation by reference of the State Implementation

Plan for the State of Utah was approved by the Director of the

Federal Register on July 1, 1982.

Dated: October 6, 1994.

Jack W. McGraw,

Acting Regional Administrator.

Chapter I, title 40 of the Code of Federal Regulations is amended

as follows:

PART 52--[AMENDED]

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

Authority: 42 U.S.C. 7401-7671q.

Subpart TT--Utah

2. Section 52.2320 is amended by adding paragraph (c)(26) to read

as follows:

Sec. 52.2320 Identification of plan.

* * * * *

(c) * * *

(26) The Governor of Utah submitted a Section 16, Stack Height

Demonstration and Section 9, Part B, Sulfur Dioxide of the Utah State

Implementation Plan (SIP) a letter dated December 23, 1991, and May 15,

1992, respectively. The Governor's submittal also included statewide

SO2 regulations.

(i) Incorporation by reference.

(A) Utah State Implementation Plan, Section 16, effective December

16, 1991.

(B) Utah State Implementation Plan, Section 9, Part B effective

June 15, 1992.

(C) Utah Air Conservation Regulations, R307-1-4. Emission

Standards: changes to 4.2 Sulfur Content of Fuels and 4.6.2, effective

June 15, 1992.

[FR Doc. 94-30607 Filed 12-13-94; 8:45 am]

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