[Federal Register Volume 82, Number 177 (Thursday, September 14, 2017)]
[Proposed Rules]
[Pages 43205-43208]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-19574]



40 CFR Part 52

[EPA-R08-OAR-2017-0469; FRL-9967-67-Region 8]

Approval and Promulgation of Air Quality Implementation Plans; 
State of Utah; Revisions to the Utah Division of Administrative Rules, 
R307-300 Series; Area Source Rule for Attainment of Fine Particulate 
Matter Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.


SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve portions of the fine particulate matter (PM2.5) 
State Implementation Plan (SIP) and related rule revisions submitted by 
the State of Utah. The EPA is proposing to approve revisions submitted 
on May 9, 2013 and August 25, 2017 for Utah's fugitive dust control 
rule, and to approve the State's associated reasonable available 
control measures (RACM) determination, submitted on December 16, 2014. 
This action is being taken under section 110 of the Clean Air Act (CAA 
or Act).

DATES: Written comments must be received on or before October 16, 2017.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2017-0469 at https://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from https://www.regulations.gov. The EPA may 
publish any comment received to the public docket. Do not submit 
electronically any information you consider to be Confidential Business 
Information (CBI) or other information, the disclosure of which is 
restricted by statute. Multimedia submissions (audio, video, etc.) must 
be accompanied by a written comment. The written comment is considered 
the official comment and should include discussion of all points you 
wish to make. The EPA will generally not consider comments or comment 
contents located outside of the primary submission (i.e., on the web, 
cloud, or other file sharing system). For additional submission 
methods, the full EPA public comment policy, information about CBI or 
multimedia submissions, and general guidance on making effective 
comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Crystal Ostigaard, Air Program, EPA, 
Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-
1129, (303) 312-6602, [email protected].


I. General Information

    a. Submitting CBI. Do not submit CBI to the EPA through https://www.regulations.gov or email. 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 the 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.
    b. Tips for Preparing Your Comments. When submitting comments, 
remember to:
    i. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    ii. 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.
    iii. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    iv. Describe any assumptions and provide any technical information 
and/or data that you used.
    v. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
    vi. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    vii. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    viii. Make sure to submit your comments by the comment period 
deadline identified.

II. Background

A. Regulatory Background

    On October 17, 2006 (71 FR 61144), the EPA strengthened the level 
of the 24-hour PM2.5 National Ambient Air Quality Standards 
(NAAQS), lowering the primary and secondary standards from 65 
micrograms per cubic meter

[[Page 43206]]

([micro]g/m\3\), the 1997 standard, to 35[micro]g/m\3\. On November 13, 
2009 (74 FR 58688), the EPA designated three nonattainment areas in 
Utah for the 24-hour PM2.5 NAAQS of 35 [micro]g/m\3\. These 
are the Salt Lake City, Utah; Provo, Utah; and Logan, Utah (UT)-Idaho 
(ID) nonattainment areas. The EPA originally designated these areas 
under CAA title I, part D, subpart 1, which required Utah to submit an 
attainment plan for each area no later than three years from the date 
of their nonattainment designations. These plans needed to provide for 
the attainment of the PM2.5 standard as expeditiously as 
practicable, but no later than five years from the date the areas were 
designated nonattainment.
    Subsequently, on January 4, 2013, the U.S. Court of Appeals for the 
District of Columbia held that the EPA should have implemented the 2006 
PM2.5 24-hour standard based on both CAA title I, part D, 
subpart 1 and subpart 4. NRDC v. EPA, 706 F.3d 428 (D.C. Cir. 2013). 
Under subpart 4, nonattainment areas are initially classified as 
Moderate, and Moderate area attainment plans must address the 
requirements of subpart 4 as well as subpart 1. Additionally, CAA 
subpart 4 sets a different SIP submittal due date and attainment year. 
For a Moderate area, the attainment SIP is due 18 months after 
designation, and the attainment year is the end of the sixth calendar 
year after designation. On June 2, 2014 (79 FR 31566), the EPA 
finalized the Identification of Nonattainment Classification and 
Deadlines for Submission of State Implementation Plan (SIP) Provisions 
for the 1997 Fine Particulate (PM2.5) National Ambient Air 
Quality Standard (NAAQS) and 2006 PM2.5 NAAQS (``the 
Classification and Deadline Rule''). This rule classified to Moderate 
the areas that were designated in 2009 as nonattainment, and set the 
attainment SIP submittal due date for those areas at December 31, 2014.
    On August 24, 2016, the EPA finalized the Fine Particulate Matter 
National Ambient Air Quality Standards: State Implementation Plan 
Requirements (``PM2.5 Implementation Rule''), 81 FR 58010, 
which partially addressed the January 4, 2013 court ruling. The final 
implementation rule details how air agencies can meet the statutory SIP 
requirements under subparts 1 and 4 that apply to areas designated 
nonattainment for any PM2.5 NAAQS, such as: General 
requirements for attainment plan due dates and attainment 
demonstrations; provisions for demonstrating reasonable further 
progress (RFP); quantitative milestones; contingency measures; 
Nonattainment New Source Review (NNSR) permitting programs; and RACM 
(including reasonably available control technology (RACT)). The 
statutory attainment planning requirements of subparts 1 and 4 were 
established to ensure that the following goals of the CAA are met: (i) 
That states implement measures that provide for attainment of the 
PM2.5 NAAQS as expeditiously as practicable; and, (ii) that 
states adopt emissions reduction strategies that will be the most 
effective at reducing PM2.5 levels in nonattainment areas.

B. RACT and RACM Requirements for PM2.5 Attainment Plans

    Section 172(c)(1) of the Act (from subpart 1) requires that 
attainment plans, in general, shall provide for the implementation of 
all RACM (including RACT) as expeditiously as practicable and shall 
provide for attainment of the national primary ambient air quality 
standards. CAA section 189(a)(1)(C) (from subpart 4) requires Moderate 
area attainment plans to contain provisions to assure that RACM is 
implemented no later than four years after designation.
    The EPA stated its interpretation of the RACT and RACM requirements 
of subparts 1 and 4 in the 1992 General Preamble for the Implementation 
of Title I of the CAA Amendments of 1990, 57 FR 13498 (April 16, 1992). 
For RACT, the EPA followed its ``historic definition of RACT as the 
lowest emission limitation that a particular source is capable of 
meeting by the application of control technology that is reasonably 
available considering technological and economic feasibility.'' 57 FR 
13541, April 16, 1992. Like RACT, the EPA has historically considered 
RACM to consist of control measures that are reasonably available, 
considering technological and economic feasibility. See 
PM2.5 Implementation Rule, 81 FR 58010, August 24, 2016.

C. Utah's PM2.5 Attainment Plan Submittals

    Prior to the January 4, 2013 decision of the D.C. Circuit Court of 
Appeals, Utah developed a PM2.5 attainment plan intended to 
meet the requirements of subpart 1. The EPA submitted written comments 
dated November 1, 2012, to the Utah Division of Air Quality (UDAQ) on 
Utah's draft PM2.5 SIP, technical support document (TSD), 
and area source and other rules. After the court's decision, Utah 
amended its attainment plan to address requirements of subpart 4. The 
EPA's comment letter can be found within the docket for this action on 
www.regulations.gov. We are proposing to act on revisions to R307-309, 
Nonattainment and Maintenance Areas for PM10 and 
PM2.5: Fugitive Emissions and Fugitive Dust submitted by 
Utah on May 9, 2013 and August 25, 2017. This rule is applicable to the 
Utah SIPs for PM2.5 nonattainment areas.

III. EPA's Evaluation of Utah's Submittals

    The State of Utah submitted SIP revisions for R307-309 on May 9, 
2013, and August 25, 2017. However, the EPA identified issues with 
R307-309 relating to director's discretion, ambiguous language, and 
other general language issues. In response, Utah submitted a letter 
dated September 30, 2016, that committed to revise R307-309 in specific 
ways to address these issues. Before the EPA could conditionally 
approve Utah's September 30, 2016 committed revisions, Utah submitted 
the specific revisions on August 25, 2017. Thus, the EPA is proposing 
to approve the submittals and to approve the corresponding RACM 
determination for R307-309 in the December 16, 2014 submittal for 
Utah's Moderate PM2.5 SIPs.
    The following is a summary of the EPA's evaluation of the rule 
revisions. In general, we reviewed the rule for: Enforceability; RACM 
requirements (for those rules submitted as RACM); and other applicable 
requirements of the Act, including those found in 40 CFR part 51.

1. R307-309, Nonattainment and Maintenance Areas for PM10 
and PM2.5: Fugitive Emissions and Fugitive Dust

    The area source rule and corresponding RACM analysis from Utah's 
PM2.5 Moderate SIPs is R307-309--Nonattainment and 
Maintenance Areas for PM10 and PM2.5: Fugitive 
Emissions and Fugitive Dust, which we are proposing to approve in this 
action. Rule R307-309 is an existing rule that was part of the 
PM10 SIP approved by the EPA on July 8, 1994 (59 FR 35036). 
This rule establishes minimum work practice and emission standards for 
sources of fugitive emissions and fugitive dust. R307-309 applies to 
all sources of fugitive dust and fugitive emissions, except as 
specified in R307-309-3(2), that are located in PM10 and 
PM2.5 nonattainment and maintenance areas.
    The rule requires any person owning or operating a new or existing 
source of fugitive dust one-quarter acre or greater in size to submit a 
fugitive dust control plan to UDAQ. Sources of fugitive dust include: 
Storage, hauling or handling operations, earthmoving, excavation, and 
moving trucks or construction equipment, among many others. Activities 
regulated by R307-309 may

[[Page 43207]]

not commence before the fugitive dust control plan is approved either 
electronically or by hard copy. UDAQ submitted the format for the 
fugitive dust control plan to the EPA and the document can be found in 
the docket for this action.
    The rule also sets a generally applicable opacity limit of 10% at 
property boundaries and 20% onsite, except during high wind events. 
During these events, the owner or operator must continue to follow the 
fugitive dust control plan and take one or more specified actions. 
Under Utah's August 25, 2017 SIP, the actions are: (1) Pre-event 
watering; (2) hourly watering; (3) adding additional chemical 
stabilization; and/or (4) ceasing or reducing fugitive dust producing 
operations to the extent practicable. The rule contains additional 
requirements regarding roads, mining activities, and tailings ponds and 
    R307-309 was previously approved for PM10 nonattainment 
areas and amended in 2012 to include the PM2.5 nonattainment 
counties. UDAQ reviewed other western state programs (including South 
Coast & San Joaquin Valley, California; Washoe & Clark Counties, 
Nevada; and Maricopa, Arizona) for the RACM analysis on R307-309. Based 
on this review, UDAQ updated R307-309 as follows: (1) Re-wording the 
high wind provision in R307-309 so that it is clear that sources must 
continue to implement control measures; (2) requiring a high wind 
contingency plan; (3) removal of the 30-day dust plan filing window; 
(4) requiring that dust generating activities may not commence before 
obtaining an approved dust plan; (5) developing best management 
practices (BMPs) for all dust source categories; (6) replacing the 
suggested control measures language in R307-309 with a requirement to 
implement BMPs; and (7) creating a one-stop shop for a storm-water 
permit and fugitive dust control plan filing.
    UDAQ noted that the number of dust complaints has significantly 
decreased since 2008 and only a very small number of complaints were 
related to an exceedance of the PM2.5 standard. From 2009 to 
2012 there were a total of 2,126 inspections done by UDAQ resulting in 
only eight violations of the relevant dust control plan. The RACM and 
rule analysis can be found within Chapter 5 of the PM2.5 
Moderate SIP TSD.
    For construction, buildings, single family residential, double unit 
residential, multiple units, and non-residential industries, UDAQ 
expects control efficiency (CE), rule effectiveness (RE) and rule 
penetration (RP) to be 37%, 80%, and 95%, respectively. The calculated 
PM2.5 reduction for the affected sources in Box Elder, 
Cache, Davis, Tooele and Weber Counties would be 28%.\1\ For sand and 
gravel and related industries, UDAQ expects CE, RE and RP to be 40%, 
80% and 95%, respectively, with a calculated PM2.5 reduction 
of 30% for the affected sources in Box Elder, Cache, Davis, Tooele and 
Weber Counties. No reductions were taken in Utah County and Salt Lake 
County as the program was in place as part of the PM10 SIP.

    \1\ Control Efficiency (CE), Rule Effectiveness (RE), and Rule 
Penetration (RP) are described in the December 16, 2014, Utah 
Moderate PM2.5 SIP TSD in Chapter 5--Control Strategies, 
Section b--Area Sources, pages 5.b.1-2 to 5.b.1-6.

    On July 11, 2012, the Air Quality Board proposed for public comment 
revisions to R307-309. The public comment period was held from August 1 
to August 31, 2012, with a public hearing being held on August 15, 
2012. Comments were submitted by industry, environmental associations, 
and the EPA. The EPA submitted written comments dated November 1, 2012, 
on Utah's draft PM2.5 SIP and TSD, which included revisions 
and RACM analysis for R307-309. UDAQ made changes to R307-309 based on 
comments that were received and the rule became effective on January 1, 
2013. Compliance with the rule was required for Salt Lake County, Utah 
County and the city of Ogden by January 1, 2013. The compliance date 
for the remaining affected sources began either 30 or 90 days after 
January 1, 2013, depending on the applicable portion of the rule. On 
May 9, 2013, UDAQ submitted these revisions to R307-309 to the EPA; 
however, the EPA identified additional issues with R307-309 relating to 
director's discretion provisions, ambiguous language, and other general 
language issues.
    UDAQ committed to correct the identified issues in a commitment 
letter dated September 30, 2016, which can be found in the docket for 
this proposed rulemaking. On May 3, 2017, the Air Quality Board 
proposed for public comment revisions found in the September 30, 2016 
commitment letter to R307-309. The comment period was held from June 1 
to July 3, 2017, with no public hearing being requested. Comments were 
submitted by an environmental association and the EPA. The EPA 
submitted a comment on June 1, 2017, specifying the proposed revisions 
represented revisions committed to in the September 30, 2016 commitment 
letter. The rule became effective on August 4, 2017. On August 25, 
2017, UDAQ submitted these revisions to R307-309 to the EPA. As stated 
previously, Utah submitted the specific revisions found in the 
September 30, 2016 commitment letter before the EPA could conditionally 
approve R307-309; thus, the EPA will be proposing to approve R307-309 
and proposing approval of Utah's determination that R307-309 
constitutes RACM.

IV. What action is EPA proposing?

    The EPA is proposing to approve revisions to R307-309 submitted on 
May 9, 2013, and August 25, 2017, and proposing to approve Utah's 
determination in their December 16, 2014 submittal that R307-309 
constitutes RACM for Utah's Moderate PM2.5 SIPs. We are not 
proposing to determine that Utah's PM2.5 attainment plan has 
met all requirements regarding RACM under subparts 1 and 4 of part D, 
title I of the Act.

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

    Under section 110(l) of the CAA, the EPA cannot approve a SIP 
revision if the revision would interfere with any applicable 
requirements concerning attainment and RFP toward attainment of the 
NAAQS, or any other applicable requirement of the Act. In addition, 
section 110(l) requires that each revision to an implementation plan 
submitted by a state shall be adopted by the state after reasonable 
notice and public hearing.
    The Utah SIP revisions that the EPA is proposing to approve do not 
interfere with any applicable requirements of the Act. The Utah 
Division of Administrative Rules (DAR) section R307-300 Series 
revisions submitted by the UDAQ on May 9, 2013, and August 25, 2017, 
are intended to strengthen the SIP and to serve as RACM for certain 
area sources for the Utah PM2.5 SIP. Therefore, CAA section 
110(l) requirements are satisfied.

VI. Incorporation by Reference

    In this rule, the EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by 
reference the UDAQ rules promulgated in the DAR, R307-300 Series as 
discussed in section III of this preamble. The EPA has made, and will 
continue to make, these materials generally available through https://www.regulations.gov and/or at the EPA Region 8 Office (please contact 
the person identified in the FOR FURTHER INFORMATION CONTACT section of 
this preamble for more information).

[[Page 43208]]

VII. Statutory and Executive Order Reviews

    Under the CAA, 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, the EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely proposes to approve state law as meeting federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this proposed 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 CAA; and
     does not provide the 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, the SIP is not approved to apply on any Indian 
reservation land or in any other area where the EPA or an Indian tribe 
has demonstrated that a tribe has jurisdiction. In those areas of 
Indian country, the proposed rule does not have tribal implications and 
will not impose substantial direct costs on tribal governments or 
preempt tribal law as specified by Executive Order 13175 (65 FR 67249, 
November 9, 2000).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Intergovernmental relations, Incorporation by reference, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organization compounds.

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

    Dated: August 31, 2017.
Debra H. Thomas,
Acting Regional Administrator, Region 8.
[FR Doc. 2017-19574 Filed 9-13-17; 8:45 am]