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