[Federal Register Volume 74, Number 229 (Tuesday, December 1, 2009)]
[Proposed Rules]
[Pages 62717-62733]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-28692]



[[Page 62717]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2006-0013; FRL-9087-5]


Approval and Promulgation of Air Quality Implementation Plans; 
Utah; Redesignation Request and Maintenance Plan for Salt Lake County; 
Utah County; Ogden City PM10 Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to disapprove the State of Utah's requests 
under the Clean Air Act to redesignate the Salt Lake County, Utah 
County, and Ogden City PM10 nonattainment areas to 
attainment, and to approve some and disapprove other associated State 
Implementation Plan (SIP) revisions. The Governor of Utah submitted the 
redesignation requests and associated SIP revisions on September 2, 
2005. EPA is proposing to disapprove the redesignation requests because 
the areas do not meet all Clean Air Act requirements for redesignation. 
Regarding the SIP revisions, EPA is proposing to approve several 
definitions in Utah rule R307-101-2 (``Definitions'') and portions of 
Utah rule R307-302 (``Davis, Salt Lake, Utah, Weber Counties: 
Residential Fireplaces and Stoves''). EPA is proposing to approve these 
SIP revisions because they meet Clean Air Act requirements. EPA is 
proposing to disapprove the maintenance plans for Salt Lake County, 
Utah County, and Ogden City, including the motor vehicle emissions 
budgets in those plans. EPA is also proposing to disapprove all other 
SIP revisions that the Governor submitted on September 2, 2005 that EPA 
is not proposing to approve, except that EPA is proposing to take no 
action on revised Utah rule R307-310 (``Salt Lake County: Trading of 
Emission Budgets for Transportation Conformity''). EPA is proposing to 
disapprove these SIP elements because they do not meet Clean Air Act 
requirements. EPA is proposing to take no action on Utah's revised 
R307-310 because acting on the revised rule would serve no purpose. EPA 
is also proposing that it need not act on certain revisions to the Utah 
PM10 SIP that the Governor submitted on July 11, 1996 and 
June 2, 1997. These revisions have been superseded by subsequent 
revisions to the Utah PM10 SIP.
    This action is being taken under sections 107, 110, and 175A of the 
Clean Air Act.

DATES: Comments must be received on or before December 31, 2009.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2006-0013, by one of the following methods:
     http://www.regulations.gov. Follow the on-line 
instructions for submitting comments.
     E-mail: [email protected].
     Fax: (303) 312-6064 (please alert the individual listed in 
FOR FURTHER INFORMATION CONTACT if you are faxing comments).
     Mail: Callie Videtich, Director, Air Program, 
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 
Wynkoop St., Denver, Colorado 80202-1129.
     Hand Delivery: Callie Videtich, Director, Air Program, 
Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 
Wynkoop St., Denver, Colorado 80202-1129. Such deliveries are only 
accepted Monday through Friday, 8:00 a.m. to 4:30 p.m., excluding 
Federal holidays. Special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-
2006-0013. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an anonymous access system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA, without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting 
comments, go to Section I, ``General Information,'' of the 
SUPPLEMENTARY INFORMATION section of this document.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Air Program, 
Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop St., 
Denver, Colorado 80202-1129. EPA requests that, if at all possible, you 
contact the individual listed in FOR FURTHER INFORMATION CONTACT to 
view the hard copy of the docket. You may view the hard copy of the 
docket Monday through Friday, 8:00 a.m. to 4:00 p.m., excluding Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: Catherine Roberts, Air Program, Mail 
Code 8P-AR, Environmental Protection Agency (EPA), Region 8, 1595 
Wynkoop St., Denver, Colorado 80202-1129, (303) 312-6025, 
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. General Information
II. Background of State Submittal
III. Evaluation Criteria for the Redesignation Request
IV. EPA Analysis of the Redesignation Request
V. Sections IX.H.1-4 of Utah's September 2, 2005 Submission
VI. Rule Revisions
VII. Transportation Conformity--Motor Vehicle Emissions Budgets
VIII. Proposed Action
IX. Statutory and Executive Order Reviews

Definitions

    For the purpose of this document, the following definitions apply:
    (i) The words or initials Act or CAA mean or refer to the Clean Air 
Act, unless the context indicates otherwise.
    (ii) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (iii) The initials SIP mean or refer to the State Implementation 
Plan.
    (iv) The words State or Utah mean the State of Utah, unless the 
context indicates otherwise.

[[Page 62718]]

    (v) The phrase PM10 means particulate matter with an aerodynamic 
diameter less than or equal to a nominal ten micrometers.

I. General Information

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

    1. Submitting CBI. Do not submit this information to EPA through 
http://www.regulations.gov or e-mail. Clearly mark the part or all of 
the information that you claim to be CBI. For CBI information in a disk 
or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM 
as CBI and then identify electronically within the disk or CD ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
    a. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    b. Follow directions--The agency may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    c. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    d. Describe any assumptions and provide any technical information 
and/or data that you used.
    e. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    f. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    g. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    h. Make sure to submit your comments by the comment period deadline 
identified.

II. Background of State Submittal

    This proposal addresses Clean Air Act (CAA) requirements for the 
pollutant PM10 as they apply to three adjacent areas in the 
greater Salt Lake City metropolitan area: Salt Lake County, Utah 
County, and Ogden City. As described below, Utah has asked EPA to 
approve changes to the CAA plans for each of these areas and change the 
areas' planning status under the Act from nonattainment to attainment.
    Under section 109 of the Act, EPA has promulgated national ambient 
air quality standards (NAAQS) for certain pollutants, including 
PM10 (40 CFR 50.6). NAAQS define levels of air quality which 
the Administrator judges are necessary to protect public health and 
welfare (40 CFR 50.2(b)). Once EPA promulgates a NAAQS, section 107 of 
the Act specifies a process for the designation of all areas within a 
state, generally as either an attainment area (an area attaining the 
NAAQS) or as a nonattainment area (an area not attaining the NAAQS, or 
that contributes to nonattainment of the NAAQS in a nearby area). For 
PM10, certain areas have also been designated 
``unclassifiable.'' These various designations, in turn, trigger 
certain state planning requirements.
    For all areas, regardless of designation, section 110 of the Act 
requires that each state adopt and submit for EPA approval a plan to 
provide for implementation, maintenance, and enforcement of the NAAQS. 
This plan is commonly referred to as a State Implementation Plan (SIP). 
Section 110 contains requirements that any SIP must meet to gain EPA 
approval.\1\ For nonattainment areas, SIPs must meet additional 
requirements contained in part D of Title I of the Act. Usually, SIPs 
include measures to control emissions of air pollutants from various 
sources, including stationary, mobile, and area sources. For example, a 
SIP may specify emission limits at power plants or other industrial 
sources.
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    \1\ EPA's approval of a SIP has several consequences. For 
example, after EPA approves a SIP, EPA and citizens may enforce the 
SIP's requirements in Federal court under section 113 and section 
304 of the Act; in other words, EPA's approval of a SIP makes the 
SIP ``Federally enforceable.'' Also, once EPA has approved a SIP, a 
state cannot unilaterally change the Federally enforceable version 
of the SIP. Instead, the state must first submit a SIP revision to 
EPA and gain EPA's approval of that revision.
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    Under the 1990 amendments to the CAA, Salt Lake and Utah Counties 
were designated nonattainment for PM10 and classified as 
moderate areas by operation of law as of November 15, 1990 (56 FR 
56694, 56840, November 6, 1991). The air quality planning requirements 
for moderate PM10 nonattainment areas are set out in 
subparts 1 and 4, part D, Title I of the Act. As described in sections 
110 and 172 of the Act, areas designated nonattainment based on a 
failure to meet the PM10 NAAQS are required to develop SIPs 
with sufficient control measures to expeditiously attain and maintain 
the NAAQS.
    On July 8, 1994, EPA approved the PM10 SIP for Salt Lake 
and Utah Counties (59 FR 35036). The SIP included a demonstration of 
attainment and various control measures, including emission limits at 
stationary sources. Because emissions of sulfur dioxide 
(SO2) and nitrogen oxides (NOX) contribute 
significantly to the PM10 problem in the area, the SIP 
included limits on emissions of SO2 and NOX in 
addition to emissions of PM10.
    On December 6, 1999, EPA approved revisions to the road salting and 
sanding programs for the two counties (64 FR 68031). On July 1, 2002, 
EPA approved additional revisions to the Salt Lake County 
PM10 SIP that allowed trading between PM10 and 
NOX motor vehicle emissions budgets for transportation 
conformity determinations (67 FR 44065). On December 23, 2002, EPA 
approved additional revisions to the Utah County PM10 SIP 
that updated attainment demonstrations, established new 24-hour 
emission limits for major stationary sources, and established new motor 
vehicle emission budgets (67 FR 78181).
    On September 26, 1995, EPA designated Ogden City as nonattainment 
for PM10 and classified the area as moderate under section 
107(d)(3) of the Act (60 FR 38726, July 28, 1995). EPA has not approved 
a PM10 attainment demonstration for Ogden City.\2\
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    \2\ Under EPA's ``Clean Data Policy,'' EPA may determine that 
Ogden City does not need to submit an attainment demonstration or 
certain other SIP elements (See, e.g., 71 FR 63642, October, 30, 
2006; 71 FR 13021, March 14, 2006; 71 FR 6352, February 8, 2006; 71 
FR 27440, May 11, 2006; and 72 FR 14422, March 28, 2007). We will 
address this issue in a separate action. Because we are proposing to 
disapprove the redesignation request for Ogden City, on unrelated 
grounds, we need not address this issue further in this action.
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    Under section 107(d)(3)(D) of the Act, a state may ask EPA to 
change the designation of an area. On September 2, 2005, Utah requested 
that EPA redesignate Salt Lake County, Utah County, and Ogden City from 
nonattainment to attainment for PM10. Section 175A of the 
Act requires that a state include with its redesignation request a 
maintenance plan that provides for maintenance of the NAAQS for at 
least 10 years after redesignation. On September 2, 2005, Utah also 
submitted maintenance plans for each of the three areas (Utah SIP 
sections IX.A.10, 11, and 12). While the three maintenance plans are 
mostly identical, some elements are different--for example, they 
contain different emission limits for stationary sources

[[Page 62719]]

and different monitoring requirements. Finally, on September 2, 2005, 
Utah submitted other revisions to the current EPA-approved Federally 
enforceable SIP (hereafter referred to as ``EPA-approved SIP''). As 
described in footnote 1, the Act allows states to adopt and submit 
revisions to their SIPs, but the revisions must meet certain CAA 
requirements before EPA will approve them. The following are the other 
SIP revisions that Utah submitted to us for approval on September 2, 
2005:
    1. Revised Sections IX.H.1 through 4 of the Utah PM10 
SIP. These sections contain limits and requirements for stationary 
sources in Salt Lake County and Utah County. Utah made numerous changes 
to the EPA-approved version of sections IX.H.1 through 3, including 
deletion of some emission limits, changes to others, and changes to 
methods for determining compliance with emission limits. The 
PM10 maintenance plans for Salt Lake County and Utah County 
rely on and assume EPA approval of revised sections IX.H.1 through 3. 
As a matter of State law, the EPA-approved versions of sections IX.H.1 
through 3 no longer exist. Section IX.H.4 is an entirely new section 
that contains procedures for establishing alternative stationary source 
requirements.
    2. Revised Utah rules R307-110-10 and 110-17, which incorporate by 
reference into Utah's rules the PM10 maintenance plans for 
Salt Lake County, Utah County, and Ogden City, and the stationary 
source provisions in revised sections IX.H.1 through 4, respectively.
    3. Revised Utah rule R307-101-2, which contains Utah's set of 
generally applicable definitions for air rules in the State. Utah 
revised, removed, and added certain definitions.
    4. Revised Utah rule R307-165, which contains generic emission 
testing requirements for all areas of the State.
    5. Revised Utah rule R307-302, which contains provisions related to 
residential fireplaces and stoves in Davis, Salt Lake, Utah, and Weber 
Counties.
    6. Revised Utah rule R307-305, which contains generic emission 
standards for sources in PM10 nonattainment and maintenance 
areas.
    7. Revised Utah rule R307-306, which contains provisions related to 
abrasive blasting in PM10 nonattainment and maintenance 
areas.
    8. Revised Utah rule R307-309, which contains provisions related to 
fugitive emissions and fugitive dust in PM10 nonattainment 
and maintenance areas.
    9. Revised Utah rule R307-310, which contains provisions related to 
trading between emissions budgets for PM10 transportation 
conformity in Salt Lake County.
    In addition to the foregoing, in 1996 and 1997, Utah submitted 
revisions to the Salt Lake County and Utah County PM10 SIPs. 
Specifically, on July 11, 1996, Utah submitted revisions to section 9.A 
and appendix A, 2.2.A, of the PM10 SIP, and to Utah rule 
R307-2-1, to account for proposed changes to emission limits at the 
former Amoco refinery in Salt Lake County.\3\ We have not acted on 
those revisions. The former Amoco refinery is now owned by Tesoro, and 
the proposed SIP revisions that Utah submitted on September 2, 2005 
contain a new SIP section IX.H.2.l and limits for Tesoro that replace 
Utah's prior section 2.2.A and limits for Amoco. Because Utah replaced 
the emission limits for Amoco with emission limits for Tesoro as a 
matter of State law, and submitted the Tesoro provisions to us for 
approval in 2005, we consider the July 11, 1996 submittal to be 
superseded and effectively withdrawn. Thus, we are proposing that no 
action is required on Utah's July 11, 1996 submittal.
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    \3\ Utah subsequently changed the numbering of its SIP and 
rules. Section 9 is now section IX. Appendix A is now section IX.H. 
R307-2-1 is now R307-110-1.
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    Similarly, on June 2, 1997, Utah submitted revisions to sections 
IX.A and H of the PM10 SIP, and to Utah rules R307-2-10 and 
R307-2-17,\4\ to account for proposed changes to emissions limits for 
various stationary sources in Utah County, and particularly Geneva 
Steel. We have not acted on those revisions. On July 3, 2002, Utah 
submitted new SIP sections IX.A and H with new limits for stationary 
sources in Utah County. These new sections IX.A and H completely 
replaced as a matter of State law the versions of sections IX.A and H 
that Utah submitted on June 2, 1997. On December 23, 2002, in an action 
we reference above, we approved the new sections IX.A and H that Utah 
submitted on July 3, 2002, along with accompanying changes to Utah 
rules R307-110-10 and R307-110-17 (67 FR 78181). Also, the proposed SIP 
revisions that Utah submitted on September 2, 2005 contain further 
proposed revisions to sections IX.A and H. Because Utah completely 
replaced sections IX.A and H as contained in Utah's June 2, 1997 SIP 
submittal with new sections IX.A and H as a matter of State law, and 
submitted the replacement versions of those sections to us in 2002 and 
2005, we consider the June 2, 1997 submittal to be superseded and 
effectively withdrawn. Thus, we are proposing that no action is 
required on Utah's June 2, 1997 submittal.
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    \4\ Utah subsequently changed the numbering of rules R307-2-10 
and R307-2-17 to R307-110-10 and R307-110-17.
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III. Evaluation Criteria for the Redesignation Request

    Section 107(d)(3)(E) of the Act provides that EPA may not 
promulgate a redesignation of a nonattainment area to attainment 
unless:
    1. The area has attained the relevant NAAQS;
    2. EPA has fully approved the applicable implementation plan for 
the area under section 110(k) of the Act;
    3. The improvement in air quality in the area is due to permanent 
and enforceable reductions in emissions resulting from implementation 
of the applicable implementation plan and applicable Federal air 
pollutant control regulations and other permanent and enforceable 
reductions;
    4. EPA has fully approved a maintenance plan for the area meeting 
the requirements of section 175A of the Act; and
    5. The State containing the area has met all requirements 
applicable to the area under section 110 and Part D of the Act.
    If any of these criteria is not met, we must disapprove the 
redesignation request.
    In addition, on September 4, 1992, EPA issued guidance outlining 
how it intended to process redesignation requests. (Memorandum 
entitled, ``Procedures for Processing Requests to Redesignate Areas to 
Attainment,'' signed by John Calcagni, Director, Air Quality Management 
Division, Office of Air Quality Planning and Standards; hereafter 
referred to as the ``Calcagni Memo.'') For further information, you may 
want to read the Calcagni Memo.

IV. EPA Analysis of the Redesignation Request

    The areas that Utah seeks to redesignate do not meet all five 
criteria for redesignation. Specifically, we cannot determine that Salt 
Lake and Utah Counties have attained the NAAQS, and we cannot approve 
the maintenance plans for the three areas. Thus, we are proposing to 
disapprove the redesignation requests.\5\ We provide more detail below.
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    \5\ Because we are finding that the redesignation submissions 
for these areas do not satisfy these criteria, we do not find it 
necessary to address whether the additional criteria for 
redesignation have been met.
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A. Redesignation Criterion 1--the Area Must Have Attained the PM10 
NAAQS

    1. The level of the primary and secondary PM10 NAAQS is 
150

[[Page 62720]]

micrograms per cubic meter ([mu]g/m\3\), 24-hour average concentration 
(40 CFR 50.6). Under the rounding convention contained in EPA's 
regulations, a monitored concentration lower than 155 [mu]g/m\3\ is 
considered to be attaining the PM10 NAAQS (40 CFR part 50, 
appendix K).
    To determine whether an area has attained the PM10 NAAQS 
for purposes of redesignation, we rely on ambient air quality data from 
a monitoring network representing maximum PM10 
concentrations (40 CFR 50.6; 40 CFR part 50, appendix K; 40 CFR part 
58; Calcagni Memo, page 2). The data must be quality assured and 
recorded in EPA's Air Quality System database (AQS). The NAAQS are 
attained when the expected number of exceedances of the NAAQS at each 
monitoring site in the area is less than or equal to 1.0 per year, 
based on three consecutive years of data.\6\ For example, if the 
expected number of exceedances at a monitor for each of three 
consecutive years is 1.0, the expected number of exceedances averaged 
over the three years would also be 1.0 (3.0 divided by 3), which would 
not be a violation. However, if the expected number of exceedances in 
year one of the three-year period were 2.0 instead of 1.0 and the 
values remained at 1.0 for years two and three, the expected number of 
exceedances averaged over the three years would be 1.33 (4.0 divided by 
3), which would be a violation.
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    \6\ 40 CFR part 50, appendix K describes how to determine the 
expected number of exceedances each year. For monitors operating 
less than daily, or for monitors with data missing on some days 
within quarters in which exceedances are measured, the expected 
number of exceedances is calculated to account for possible 
exceedances on unsampled days within calendar quarters. Thus, for 
example, a single recorded exceedance at a monitor in a given year 
could result in an expected number of exceedances at that monitor 
significantly greater than 1.0 for the year.
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    For redesignations, EPA's consistent interpretation has been that 
the area must have attained the standard in the base year for the 
maintenance demonstration and in all subsequent years up through EPA's 
action on the redesignation request. (See, e.g., EPA's final and 
proposed disapprovals of the redesignation requests for various areas, 
including Pittsburgh (61 FR 19193, May 1, 1996), Richmond (59 FR 22757, 
May 3, 1994), Kentucky portion of Cincinnati-Hamilton (61 FR 50718, 
September 27, 1996), Ohio portion of Cincinnati-Hamilton (62 FR 7194, 
February 18, 1997), and Birmingham (62 FR 23421, April 30, 1997); the 
proposed correction of the designation for Lafourche Parish (62 FR 
38237, July 17, 1997); and the Calcagni Memo, page 5.)
    Between 1985 and 2006, Utah operated a total of 15 PM10 
monitors, which were either State and Local Air Monitoring Stations 
(SLAMS) or National Air Monitoring Sites (NAMS), in the Salt Lake 
County, Utah County, and Ogden City PM10 nonattainment 
areas.\7\ Currently, four PM10 SLAMS operate in Salt Lake 
County, two operate in Utah County, and one operates in Ogden City.
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    \7\ SLAMS monitoring stations are defined in 40 CFR 58.1, and 
are those ambient air monitors operated by State and local 
governments primarily used for comparison to the NAAQS. NAMS 
monitors were formerly defined in 40 CFR 58.1 as a subset of the 
SLAMS network; the NAMS monitor type was discontinued through 
changes to 40 CFR part 58 promulgated in 2006 (71 FR 61236, October 
17, 2006).
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a. Salt Lake County
    In June 2001, we determined that Salt Lake County had attained the 
PM10 NAAQS as of December 31, 1995 (66 FR 32752, June 18, 
2001). However, beginning in 2001, which is the base year for Utah's 
maintenance demonstration, Salt Lake County began experiencing 
exceedances of the PM10 NAAQS that resulted in violations. 
Specifically, two exceedances of the PM10 NAAQS in 2001 at 
the Magna monitoring site resulted in a violation of the NAAQS in each 
three-year period that includes 2001--i.e., 1999-2001, 2000-2002, and 
2001-2003.\8\ On 12 days from 2002 through 2007, there were 15 more 
measured exceedances at three monitors. At least one Salt Lake County 
monitor has been in violation of the PM10 NAAQS in every 
three-year period since 2001. The table below summarizes the actual 
PM10 exceedances recorded in Salt Lake County in 2001 
through 2007 that contributed to or are associated with violations, as 
well as the calculated expected number of exceedances and the 
violations.
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    \8\ A violation occurred in each of these periods because the 
two measured exceedances in 2001 resulted in a calculated expected 
number of exceedances in that year alone of 6.4. The two measured 
exceedances resulted in a calculated expected number of exceedances 
of 6.4 because the Magna monitor operates only once every three 
days. (See 40 CFR part 50, appendix K.) Even if averaged with a 
value of zero expected exceedances in two other years, a value of 
6.4 expected exceedances in a single year causes a violation (6.4 
divided by 3 exceeds 1.0).

                               Table 1--PM10 Exceedances Contributing to Violations in Salt Lake County, 2001 Through 2007
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                                                                                                                    Expected
             Year                                Date                    Monitor and AQS ID No.   PM10, ([mu]g/     number of        Contribution to
                                                                                                      m\3\)        exceedances          violations
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2001.........................  March 14, 2001.........................  Magna, 49-035-1001.....             201             6.4  Constitutes a violation
                               April 22, 2001.........................  Magna, 49-035-1001.....             156                   for 1999-2001 through
                                                                                                                                  2001-2003 data sets.
2003.........................  February 1, 2003.......................  North Salt Lake City,               169             3.1  No violation as of end
                               April 1, 2003..........................   49-035-0012.                       358                   of 2003, but
                                                                        North Salt Lake City,                                     contributes to
                                                                         49-035-0012.                                             violation with 2004
                                                                                                                                  data; see below.\9\
                               April 2, 2003..........................  North Salt Lake City,               209
                                                                         49-035-0012.
                               April 1, 2003..........................  Magna, 49-035-1001.....             421             3.1  No new violation, but
                                                                                                                                  adds to other
                                                                                                                                  violations.
2004.........................  May 10, 2004...........................  North Salt Lake City,               189             1.0  Constitutes a violation
                                                                         49-035-0012.                                             in combination with
                                                                                                                                  3.1 exceedances in
                                                                                                                                  2003; 2002-2004 and
                                                                                                                                  2003-2005 data sets
                                                                                                                                  violate.
2005.........................  September 10, 2005.....................  Magna, 49-035-1001.....             177             3.3  Constitutes a violation
                                                                                                                                  for 2003-2005 through
                                                                                                                                  2005-2007 data sets.

[[Page 62721]]

 
2006.........................  July 4, 2006...........................  North Salt Lake City,               188             2.2  Constitutes a new
                               July 26, 2006..........................   49-035-0012.                       164                   violation for the 2004-
                                                                        North Salt Lake City,                                     2006 data set.
                                                                         49-035-0012.
2007.........................  July 7, 2007...........................  North Salt Lake City,               174             4.3  Constitutes a violation
                               July 11, 2007..........................   49-035-0012.                       156                   for 2005-2007 through
                                                                        North Salt Lake City,                                     2007-2009 data sets.
                                                                         49-035-0012.
                               July 13, 2007..........................  North Salt Lake City,               166
                                                                         49-035-0012.
                               October 25, 2007.......................  North Salt Lake City,               172
                                                                         49-035-0012.
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    State and local monitoring agencies may apply a ``flag'' (a flag is 
a code placed on the data in the AQS database) to an exceedance 
recorded in AQS when they believe an exceptional event such as high 
winds or wildfires caused the measured exceedance of the NAAQS. The 
State or local agency may then provide EPA with documentation on the 
exceptional event and request that EPA remove the data from the dataset 
EPA uses to calculate violations. Currently, EPA's Exceptional Events 
Rule governs the flagging of data (72 FR 13560, March 22, 2007, and 72 
FR 28612, May 22, 2007). Before May 22, 2007, EPA's Natural Events 
Policy (NEP) applied.\10\ Utah has placed high wind exceptional event 
flags on each of the data values in the table above, with the exception 
of the value at North Salt Lake City on October 25, 2007, and claims 
these data values should be excluded from EPA's regulatory 
calculations.
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    \9\ Per 40 CFR part 50, appendix K, the three-year average based 
on 3.1 expected exceedances in 2003 and zero expected exceedances in 
2001 and 2002 is 1.03 (3.1 divided by 3), which rounds down to 1.0 
and is not a violation.
    \10\ Memorandum from Mary D. Nichols, Assistant Administrator 
for Air and Radiation, entitled, ``Areas Affected by PM10 
Natural Events,'' May 30, 1996.
---------------------------------------------------------------------------

    Under the NEP, EPA indicated that it would exclude data from its 
decisions regarding an area's attainment status when those data were 
attributable to uncontrollable natural events, which under certain 
circumstances could include high winds. The policy defined a high wind 
event as an event with unusually high winds where the dust originated 
from either (1) nonanthropogenic sources (not man made), or (2) 
anthropogenic sources (man made) controlled with the best available 
control measures (BACM).\11\ When natural events such as high winds 
caused a violation of the PM10 NAAQS, states were to develop 
a natural events action plan (NEAP) that included certain elements 
listed in the NEP. For high winds, the NEAP should have included the 
application of BACM, and the application criteria required analysis of 
the technological and economic feasibility of individual control 
measures. In addition, a state seeking exclusion of data impacted by 
natural events had the responsibility to submit documentation 
establishing ``a clear causal relationship between the measured 
exceedance and the natural event.'' (NEP, page 10). In its submission, 
a state had to show that BACM were required at anthropogenic sources of 
dust and that these sources were in compliance at the time of the high 
wind event. Finally, for areas allegedly affected by natural events 
seeking redesignation, such as the Salt Lake County nonattainment area, 
a state had to include the NEAP in its maintenance plan.
---------------------------------------------------------------------------

    \11\ See 59 FR 42010, August 16, 1994, for a discussion of 
PM10 BACM.
---------------------------------------------------------------------------

    While Utah applied a high wind flag to the exceedances recorded at 
Magna, Utah on March 14, 2001 and April 22, 2001, Utah's submission to 
EPA failed to meet the criteria for exclusion of data under the policy. 
Utah's documentation identified the source of windblown dust as 
Kennecott Utah Copper, a major permitted source that was not in 
compliance with its permit at the time of the exceedances. As discussed 
above, Utah had to show in its submission, among other things, that 
anthropogenic sources of dust were in compliance at the time of the 
high wind event (NEP, page 11).\12\ Thus, EPA did not concur on Utah's 
flags in AQS for the 2001 exceedances at Magna. As stated above, 
because the Magna monitor operates on a once in three-day schedule, the 
expected number of exceedances calculated for 2001 is 6.4 (see 40 CFR 
part 50, appendix K), which results in a PM10 NAAQS 
violation at the Magna monitoring site for any 3-year period containing 
2001 (1999-2001, 2000-2002 and 2001-2003).
---------------------------------------------------------------------------

    \12\ Similarly, under the current Exceptional Events Rule 
discussed below, an event is not eligible for consideration as an 
exceptional event and exclusion of data if there is source 
noncompliance (40 CFR 50.1(j).)
---------------------------------------------------------------------------

    As stated above, Utah also placed high wind flags on later 
exceedances of the PM10 NAAQS at the Magna and North Salt 
Lake City monitors. While Utah submitted documentation with respect to 
these exceedances and a NEAP, Utah failed to include the NEAP as part 
of the maintenance plan submitted to EPA in 2005, as it should have 
done under the NEP. In addition, the analysis in the NEAP did not 
establish that BACM was implemented at the time of the exceedances for 
the three main anthropogenic sources of emissions identified as causing 
or contributing to the exceedances: (1) Kennecott tailings; (2) 
agriculture; and (3) construction. For example, the NEAP asserted that 
for Kennecott sources, a best available control technology (BACT) 
analysis had been done historically and that BACT is generally more 
stringent than BACM, but the NEAP did not analyze whether the control 
requirements constituted BACM for wind blown dust at the time of the 
events. Similarly, the NEAP mentioned certain control measures that the 
other contributing anthropogenic sources were currently implementing, 
but did not include a BACM analysis evaluating these control measures. 
Also, Utah did not determine the high wind conditions that would 
overcome BACM (See NEP, page 7). Thus, we were unable to concur on 
Utah's data flags under the NEP.
    We are also unable to disregard the flagged data under our 
Exceptional Events Rule, which took effect on May 22, 2007. The rule 
implements section 319 of the CAA, as amended by section 6013 of the 
Safe Accountable Flexible Efficient-Transportation Equity Act: A

[[Page 62722]]

Legacy for Users (SAFE-TEA-LU) of 2005. The rule establishes procedures 
and criteria to govern the review and handling of air quality 
monitoring data influenced by exceptional events, and under certain 
circumstances, EPA may exclude such data from regulatory actions under 
the CAA, including redesignations to attainment or nonattainment.
    Under the Exceptional Events Rule, a state asking EPA to exclude 
data from its regulatory calculations must, after notice and 
opportunity for public comment, submit a demonstration that shows to 
EPA's satisfaction that the flagged event caused a specific 
concentration in excess of the NAAQS at the particular monitor 
location. The state must submit the demonstration and any public 
comments to EPA within 3 years of the calendar quarter following the 
event, but no later than 12 months prior to an EPA regulatory decision 
(40 CFR 50.14(c)(3)(i)). Of particular note, 40 CFR 50.14(c)(2)(ii) 
states that data shall not be excluded from determinations with respect 
to exceedances or violations of the NAAQS, and that all flags are 
considered for information only, until such time as a state submits the 
demonstration and EPA concurs on the flags.
    To date, Utah has not submitted any demonstrations for 
PM10 high wind flags under the Exceptional Events Rule, and 
the regulatory deadlines for submitting such demonstrations for any of 
the events before 2006 have passed.\13\ Since concurrence was not 
possible on these flags under the NEP, and demonstrations meeting the 
requirements of the current Exceptional Events Rule have not been 
submitted, the flagged concentrations recorded in Salt Lake County 
between 2001 and 2005 may not be excluded as exceptional events from 
our calculations of violations. Thus, Salt Lake County violated the 
PM10 NAAQS from 2001 through 2007 based on exceedances 
measured in 2001, 2003, 2004, and 2005.
---------------------------------------------------------------------------

    \13\ Between May 22, 2007 (the effective date of the Exceptional 
Events Rule) and December 31, 2007, EPA permitted states to choose 
to comply with either the rule or the NEP. This flexibility was 
limited to situations where the following two conditions were met: 
(a) Before May 22, 2007, a state had flagged data and submitted a 
timely demonstration to attempt to show that an exceptional event 
caused a NAAQS exceedance reflected in the data; and (b) EPA had not 
already determined whether an exceptional event caused the 
exceedance. Unless the state, in the limited circumstances described 
above, specifically requested that EPA evaluate a natural or 
exceptional event demonstration under the NEP, EPA presumed that the 
rule applied after May 22, 2007.
---------------------------------------------------------------------------

    Similarly, because Utah has not submitted demonstrations meeting 
the requirements of the Exceptional Events Rule, EPA must consider the 
flags on exceedances in 2006 and 2007 as being informational only per 
40 CFR 50.14(c)(2)(ii). Thus, these exceedances represent new 
PM10 violations that are relevant to the evaluation of 
attainment for 2005-2007, 2006-2008, and 2007-2009. Finally, 2008 data 
in AQS, not yet certified by Utah, show new exceedances at the North 
Salt Lake City monitor on April 15, 2008 (188 [mu]g/m\3\) and April 19, 
2008 (181 [mu]g/m\3\). Additionally, the data show an exceedance at the 
Cottonwood monitor (AQS ID49-035-0003) on April 15, 2008 (177 [mu]g/
m\3\), which, assuming the data are certified, would result in a new 
violation of the PM10 NAAQS.
    Based on the monitored violations of the PM10 NAAQS 
during and subsequent to the base year for the maintenance 
demonstration, we are unable to determine that the Salt Lake County 
area has attained the NAAQS in accordance with section 107(d)(3)(E) of 
the Act. Therefore, Salt Lake County is currently ineligible for 
redesignation to attainment for the PM10 NAAQS.
b. Utah County
    While there were exceedances of the PM10 NAAQS in Utah 
County in 2002, 2003, and 2004, there were no violations in the area in 
any three-year period from 1993 through 2007. However, 2008 data in 
AQS, not yet certified by Utah, show four exceedances of the 
PM10 NAAQS at the Lindon monitor in Utah County: 164 [mu]g/
m\3\ on April 15, 2008; 181 [mu]g/m\3\ on April 19, 2008; 155 [mu]g/
m\3\ on April 29, 2008; and 177 [mu]g/m\3\ on May 20, 2008. Assuming 
the data are certified, the four exceedances would represent a 
violation of the PM10 NAAQS in Utah County for the three-
year periods that include 2008. Utah has flagged these exceedances as 
high wind exceptional events, but EPA must consider these flags as 
informational only until the demonstration requirements of the 
Exceptional Events Rule are met and EPA concurs on the flags.\14\ Thus, 
given the fact that these exceedances are currently in AQS and EPA has 
not yet determined that they should be excluded from consideration, we 
are unable to determine that the area has attained the NAAQS for 
purposes of redesignation under section 107(d)(3)(E). Therefore, Utah 
County is currently ineligible for redesignation to attainment for the 
PM10 NAAQS.
---------------------------------------------------------------------------

    \14\ The Lindon monitor recorded an additional exceedance of 200 
[mu]g/m\3\ on March 4, 2009. Utah has also placed a high wind flag 
on this exceedance. This exceedance alone would not represent a new 
violation of the NAAQS.
---------------------------------------------------------------------------

c. Ogden City
    While there were exceedances of the PM10 NAAQS in Ogden 
City in 2002, 2003, and 2004, there were no violations in the area in 
any three-year period from 1993 through 2007. Similarly, 2008 data in 
AQS, not yet certified by Utah, indicate there were no violations 
through 2008. Thus, Ogden City data indicate that the area is currently 
attaining the NAAQS. However, the area fails to meet other 
redesignation requirements, as discussed below.

B. Redesignation Criterion 4--The Area Must Have a Fully Approved 
Maintenance Plan That Meets the Requirements of Section 175A

1. Deficiencies applicable to all three maintenance plans.
    a. The State did not adequately define 24-hour stationary source 
inputs to modeling. For purposes of demonstrating maintenance, Utah 
conducted dispersion modeling for all three nonattainment areas 
combined using the UAM-Aero model. While the modeling outcomes indicate 
the areas will maintain the PM10 NAAQS at least through 
2017,\15\ we are unable to determine and confirm the 24-hour major 
stationary source inputs used in the modeling. This key information is 
not contained in Utah's electronic data files. Thus, we cannot 
determine what 24-hour emission rates were used in the modeling 
analysis to evaluate model performance\16\ or to show maintenance of 
the PM10 standard. Without this information, we cannot 
determine that the model met relevant performance standards, and we 
cannot determine that major stationary source emission limits in the 
Utah SIP will be adequate to maintain the NAAQS for the 10-year period 
required by the CAA.
---------------------------------------------------------------------------

    \15\ Section 175A of the Act requires that the maintenance plan 
demonstrate maintenance for at least 10 years following EPA's 
approval of a redesignation to attainment. As of the date of this 
proposal, the 2017 maintenance year in the Utah maintenance plans 
would not meet the 10-year-maintenance requirement.
    \16\ The performance of a photochemical grid model like UAM-Aero 
must be verified before it is used to model maintenance. Roughly 
speaking, this is done by inputting actual emissions and 
meteorological data for a period with known, monitored ambient 
values--in the case of the Utah PM10 plans, certain 24-
hour ``episodes'' during 2001 and 2002--and determining whether the 
model predictions are sufficiently close to actual monitored values.
---------------------------------------------------------------------------

    While Utah did compile annual baseline and projected inventories of 
major stationary source emissions in its Technical Support Document 
(TSD),

[[Page 62723]]

these are not a substitute for 24-hour inventories, and they are not a 
substitute for electronic data files containing 24-hour major 
stationary source inputs for the dispersion modeling. In addition, we 
cannot determine from Utah's annual inventories whether Utah evaluated 
and regulated all significant stationary emission sources in the 
maintenance plan. For example, we cannot determine whether Utah 
evaluated refinery flare emissions in the maintenance demonstration. 
Flares can be a significant source of emissions. Also, Utah's SIP 
submittal does not include emission limits for several major stationary 
sources located outside the designated PM10 nonattainment 
areas but inside the modeling domain for Utah's maintenance 
demonstration. It appears these sources were not included in Utah's 
annual inventories, but we cannot determine why they were excluded or 
whether exclusion was appropriate.
    b. Utah did not properly model Kennecott's banked emissions. 
Kennecott has ``banked'' thousands of tons per year of SO2 
emissions reductions.\17\ In the maintenance demonstration, Utah 
modeled 12,567 tons per year of these banked emissions as though they 
were being emitted from Kennecott's 1200-foot stack.\18\ This 
assumption is not reasonable. For example, if several companies 
purchased these banked SO2 emissions from Kennecott, it is 
highly unlikely the companies would emit the SO2 from 1200-
foot stacks. An appropriate assumption, which Utah employed when 
modeling other banked emissions, is that Kennecott's banked emissions 
would be emitted from within a core industrial area in Salt Lake County 
at a height of 65 meters (213 feet) or less.
---------------------------------------------------------------------------

    \17\ Utah allows sources who permanently reduce their emissions 
to ``bank'' the emissions reductions and later use or sell them to 
offset emission increases from new or modified sources anywhere in 
the nonattainment area. Kennecott made changes to its smelter that 
reduced SO2 emissions by thousands of tons and banked the 
reductions.
    \18\ In predicting ground-level concentrations, dispersion 
models account for the height and location of the emissions point.
---------------------------------------------------------------------------

    This difference in the assumed stack height of future emissions is 
significant. Generally, the higher that emissions are released from 
ground level, the more the emissions disperse and the less they impact 
pollutant concentrations at the surface.\19\ Under wintertime inversion 
conditions in the Salt Lake area, when the inversion height is 
typically 1,000 feet or less, it is particularly unlikely that 
pollutants emitted from a 1200-foot stack (i.e., above the inversion 
height) would be mixed to the surface and contribute to PM10 
concentrations at the surface. Thus, we believe Utah's modeling 
substantially underestimates the potential PM10 impact of 
Kennecott's banked SO2 emissions. This would affect the 
maintenance demonstration for Salt Lake County and may affect the 
maintenance demonstration for Utah County and Ogden City as well. In 
order to quantify the exact effect, the model would need to be re-run 
with appropriate assumptions for the location and height of release of 
the banked emissions. Therefore, we propose to find that the modeled 
maintenance demonstrations for all three areas are invalid.
---------------------------------------------------------------------------

    \19\ Modeling for maintenance and attainment predicts pollutant 
concentrations at ground level because compliance with the NAAQS is 
evaluated against ground-level ambient concentrations. This is based 
on the fact that people breathe ground-level air.
---------------------------------------------------------------------------

    c. Use of improper estimates of road dust emissions in modeling. 
For purposes of estimating mobile source road dust emissions in its 
maintenance demonstration, Utah used EPA's AP-42 document to calculate 
PM10 road dust emissions estimates but then discounted those 
estimates by 75%. This discount is not supported.
    As discussed in EPA's policy memoranda of February 24, 2004 \20\ 
and August 2, 2007,\21\ EPA's MOBILE6.2 is the approved model for 
calculating direct PM10 and PM2.5 from vehicle 
exhaust and brake and tire wear. Both memoranda state that Chapter 13.2 
of AP-42 (specifically sections 13.2.1, ``Paved Roads,'' and 13.2.2, 
``Unpaved Roads'') contains the EPA-approved methods for calculating 
re-entrained road dust emissions. The August 2, 2007 memorandum 
indicates that November 1, 2006 revisions to AP-42 will lower estimates 
of PM2.5 re-entrained road dust emissions from paved roads 
by 40% and from unpaved roads by 33%. But, the memorandum affirms that 
``* * * PM10 road dust estimates are unchanged from the previous 
version.'' [Emphasis in the original.]
---------------------------------------------------------------------------

    \20\ ``Policy Guidance on the Use of MOBILE6.2 and the December 
2003 AP-42 Method for Re-Entrained Road Dust for SIP Development and 
Transportation Conformity,'' signed by Margo Oge of EPA's Office of 
Transportation and Air Quality and Steve Page of EPA's Office of Air 
Quality Planning and Standards.
    \21\ ``Policy Guidance on the Use of the November 1, 2006, 
Update to AP-42 for Re-entrained Road Dust for SIP Development and 
Transportation Conformity,'' signed by Merrylin Zaw-Mon of EPA's 
Office of Transportation and Air Quality and Peter Tsirigotis of 
EPA's Office of Air Quality Planning and Standards.
---------------------------------------------------------------------------

    While our February 24, 2004 policy memorandum suggests that states 
may be able to justify deviations from AP-42 and EPA's approved mobile 
source inventory methodology, Utah has not justified a 75% discount of 
re-entrained PM10 road dust emissions estimates. Utah's TSD 
indicated that the 75% discount method resulted in part from 
consultation with Sonoma Technologies, but provided insufficient detail 
(TSD, tab 2.d.ii(3)(iii), page 17). In its response to comments on the 
draft maintenance plan, Utah also referenced some general studies that 
discussed the difficulties and inaccuracies in estimating paved and 
unpaved road dust emissions (June 27, 2005 Response to Comments, 
response to comment 104, page 7). Specifically, Utah 
referenced ``A Conceptual Model to Adjust Fugitive Dust Emissions to 
Account for Near Source Particle Removal in Grid Model Applications,'' 
by Thompson G. Pace, US EPA, August 22, 2003. This paper discusses, 
``some recent studies and proposes refinements to the ``divide-by-
four'' factor that may be applicable to these source categories'' 
(Pace, 2003, page 1). (Dividing estimated emissions by four has the 
same impact as reducing them by 75%.) As noted by Pace, an across-the-
board 75% reduction requires ``refinement'' and case-by-case analysis. 
Furthermore, Pace refers to a study by the Desert Research Institute 
\22\ that states:

    \22\ ``Field Testing And Evaluation Of Dust Deposition And 
Removal Mechanisms: Final Report,'' Etyemezian, et. al, Desert 
Research Institute, prepared for: The WESTAR Council, January1, 
2003; found January 18, 2006 at: http://www.westar.org/Docs/Dust/Transportable_Dust_Final_Report_DRI_WESTAR.pdf.
---------------------------------------------------------------------------

    This enormous range of removal rates emphasizes that it is not 
appropriate to apply a single correction factor to all fugitive dust 
emissions as a means of accounting for near-field particle removal. 
Though not documented, the community of scientists and professionals 
has, in the last several years, been circulating the idea that if 
fugitive dust emissions were divided by a factor of four, then the 
discrepancy between emissions and ambient measurements of geological 
PM10 would disappear. While it is possible that this is 
true on an average basis (i.e. over large spatial domains), it is 
unlikely that this factor of four is applicable to every combination 
of air shed, land use distribution, and atmospheric conditions. Each 
combination of setting and meteorological conditions should be 
considered separately in a modeling framework that makes use of the 
known physics of particle dispersion and deposition.

    Thus, the paper Utah relies on to discount the AP-42-estimated 
PM10 emissions actually supports EPA's view that it is not 
appropriate to employ a 75% reduction or divide-by-four methodology in 
all situations, and suggests that, while some change may be 
appropriate, the specific conditions along the Wasatch Front must be 
considered. Any reduction proposed by

[[Page 62724]]

Utah must be supported by an analysis that explains why the reduction 
is appropriate for the area, considering the local geography, land use, 
and atmospheric conditions. Utah did not provide such an analysis.
    To further evaluate the issue, EPA conducted its own analysis to 
determine whether a 75% reduction could be supported. EPA evaluated 
available information regarding the transportable fraction of 
PM10 re-entrained road dust emissions, as discussed below.
    EPA has developed a method to estimate a transportable fraction of 
fugitive dust emissions \23\ for grid modeling inventories. In that 
method, EPA has considered the land use, vegetation, topography, and 
other factors and estimated an aggregate transportable fraction for 
counties around the United States. The transportable fraction for each 
county can be seen at EPA's webpage at:  http://www.epa.gov/ttn/chief/emch/dustfractions/.
---------------------------------------------------------------------------

    \23\ ``Methodology to Estimate the Transportable Fraction (TF) 
of Fugitive Dust Emissions for Regional and Urban Scale Air Quality 
Analyses,'' Thompson G. Pace, US EPA (August 3, 2005 Revision).
---------------------------------------------------------------------------

    The transportable fractions estimated for Utah, Salt Lake, and 
Weber Counties are .69, .66, and .75, respectively. These transportable 
fractions indicate that appropriate emission reductions from AP-42-
based estimates, when considering the specific features of the areas, 
are 31% for Utah County, 34% for Salt Lake County, and 25% for Weber 
County, which includes the Ogden City PM10 nonattainment 
area. Thus, EPA's supplemental analysis does not support Utah's use of 
a 75% reduction from AP-42 estimates of PM10 road dust 
emissions. Utah's use of such reduction is inappropriate; by 
overestimating the reduction in re-entrained road dust emissions, Utah 
underestimated ambient concentrations of PM10 in its 
maintenance demonstrations for all three areas. Without accurate 
estimates of emissions and ambient concentrations, we cannot determine 
that the maintenance plans will be adequate to maintain the NAAQS for 
the 10-year period.
2. Deficiencies Applicable to the Maintenance Plans for Salt Lake and 
Utah Counties
    a. Utah has not attained the NAAQS. The Calcagni Memo states that 
the attainment inventory used in the maintenance demonstration must 
come from a period for which the area attains the NAAQS. The attainment 
inventory used for the maintenance demonstration came from 2001, a year 
in which Salt Lake County did not attain the NAAQS. (See discussion in 
section IV.A above.) In addition, Salt Lake County has violated the 
PM10 NAAQS in every three-year period since 2001. These 
persistent violations indicate that the underlying basis of the 
maintenance demonstration for Salt Lake County is not valid.
    As discussed above in section IV.A.1.b, 2008 data in AQS, not yet 
certified by Utah, indicate exceedances that would comprise violations 
of the PM10 NAAQS in Utah County for any three-year period 
that includes 2008. These data call into question the maintenance 
demonstration for Utah County.
    b. Maintenance plans rely on inadequate methods for intermittent 
sources. The maintenance plans for Salt Lake and Utah Counties rely on 
controls contained in submitted SIP section IX.H,\24\ including opacity 
limits for intermittent sources. Section IX.H.1 specifies a method for 
conducting opacity observations. The last sentence in submitted SIP 
section IX.H.1.g says: ``For intermittent sources and mobile sources, 
opacity observations shall be conducted using procedures similar to 
Method 9, but the requirement for observations to be made at 15-second 
intervals over a six-minute period shall not apply.'' This language is 
not sufficiently clear.\25\ The language must indicate what test method 
will apply. Without this, we cannot be assured that the opacity limits 
for intermittent and mobile sources will be enforceable or that the 
maintenance plan is adequate to ensure maintenance of the NAAQS.
---------------------------------------------------------------------------

    \24\ Hereafter, when we refer to the submitted SIP or a 
submitted SIP section, revision, or rule, we mean the SIP or SIP 
section, revision, or rule that Utah submitted to us for approval on 
September 2, 2005, as opposed to the EPA-approved SIP or SIP 
section, revision, or rule.
    \25\ We recognize that this language is similar to language in 
the EPA-approved SIP. However, due to the potential problems with 
this language, it would be inappropriate for us to re-approve it or 
accept reliance on it for purposes of the maintenance plan.
---------------------------------------------------------------------------

3. Deficiencies Applicable to the Salt Lake County Maintenance Plan
    a. Maintenance plan relies on deficient control measures for 
stationary sources in Salt Lake County. Utah revised as a matter of 
State law the Salt Lake County stationary source control measures in 
section IX.H of the SIP, incorporated these State-revised measures into 
its proposed maintenance plan (see submitted SIP section IX.A.10, pages 
30-31), and based its maintenance demonstration on the assumption that 
these State-revised measures would be approved into the SIP by EPA and 
would therefore be in place.\26\ For the reasons set forth below, many 
parts of State-revised section IX.H are not approvable, therefore, the 
maintenance plan, which relies upon assumed approval of the State's 
revisions to section IX.H, does not demonstrate that the area will 
maintain the NAAQS for ten years after redesignation.
---------------------------------------------------------------------------

    \26\ Note that revising the EPA-approved SIP is a two-step 
process. First, the state adopts changes as a matter of state law 
and submits them to EPA. Then, EPA either approves or disapproves 
those changes. Only if EPA approves the changes do they take effect 
as a matter of Federal law.
---------------------------------------------------------------------------

    (i) For a number of the source emission limits, submitted SIP 
section IX.H does not contain adequate compliance determining and 
reporting requirements, as required by section 110 of the Act. Absent 
adequate compliance determining and reporting requirements, there is no 
assurance that the emission limits relied on to demonstrate maintenance 
in Salt Lake County will be met. Thus, these flaws render the specific 
source requirements and the maintenance plan as a whole, which relies 
on them, unapprovable. The following are examples of inadequate 
compliance determining and reporting requirements.
    (A) Lack of emission factors for PM10 and 
NOX. For Chevron, Flying J, Holly Refining, and Tesoro West 
Coast, submitted SIP sections IX.H.2.c, d, f, and l, respectively, 
require that PM10 emissions from external combustion process 
equipment be determined daily by ``multiplying the appropriate emission 
factor from section IX.H.1.i.2 or from testing listed below by the 
relevant parameter (e.g., hours of operation, feed rate, or quantity of 
fuel combusted) at each affected unit, and summing the results for the 
group or affected unit.'' The same approach is prescribed for 
determining NOX emissions. Submitted SIP section 
IX.H.1.i.(2) does not list any emission factors for PM10 or 
NOX. The SIP should specify the appropriate emission factors 
and equations for determining compliance with the emission limits. In 
contrast to submitted SIP section IX.H.1.i.(2), the EPA-approved SIP 
specifies the numerical value of the emission factors for 
PM10 and NOX at each refinery, for each type of 
fuel used in external combustion process equipment. The lack of 
specificity in submitted SIP sections IX.H.1 and 2 renders the emission 
limits unenforceable.
    (B) Lack of metering or other measurement techniques. Submitted SIP 
section IX.H.1.i.(2) of the general requirements for refineries does 
not specify how the ``hours of operation,

[[Page 62725]]

feed rate, or quantity of fuel combusted'' are to be measured. No 
metering devices or other measurement techniques are specified. The 
submitted SIP departs from the EPA-approved SIP, which specifies the 
monitoring devices and measurement techniques. Because Utah did not 
specify the methods to measure the hours of operation, feed rate, or 
quantity of fuel combusted in submitted SIP section IX.H.1.i.(2), the 
corresponding emission limits are unenforceable.
    (C) Lack of enforceable requirement for re-establishing emission 
factor at Flying J refinery. For the Catalyst Regeneration system at 
Flying J refinery, submitted SIP section IX.H.2.d.(1)(a)(ii) says the 
PM10 emission factor of 22 pounds per thousand barrels (lbs/
kbbl) ``may be re-established by stack testing'' but does not specify a 
schedule for such stack testing. The PM10 emission control 
equipment (an electrostatic precipitator) could deteriorate over time 
without proper maintenance, and the emission factor could change. Under 
these circumstances, the SIP must require at least annual stack testing 
to re-establish the emission factor. The lack of at least annual stack 
testing renders the submitted SIP's methods for determining compliance 
with the PM10 limits inadequate.
    (D) Lack of required technique for calculating Sulfur Recovery Unit 
(SRU) efficiency. Submitted SIP section IX.H.1.i.(1)(a) requires 
removal of a ``minimum of 95% of the sulfur from feed streams processed 
by the SRU'' at refineries. For demonstrating compliance, ``SRU 
efficiency shall be estimated and reported to the Executive Secretary a 
minimum of once per year.'' Since no technique is specified for 
calculating SRU efficiency, this is not a practically enforceable 
requirement. Also, once-per-year reporting is not frequent enough. 
Performance problems can easily develop at SRUs over a shorter period 
of time than a year.
    Continuous Emission Monitoring Systems (CEMS) for SO2 
are installed at each SRU to collect data continuously. Thus, the 
requirement should be to demonstrate 95% sulfur removal efficiency on a 
daily basis (24-hour block average) via SO2 CEMS data, with 
reporting through quarterly compliance reports. The lack of such 
requirements renders the submitted SIP inadequate.
    (E) Lack of practical enforceability of PM10, 
SO2, and NOX emission limits at Kennecott Power 
Plant. Submitted SIP section IX.H.2.i.(1)(f), which applies to 
Kennecott Power Plant, does not specify any metering devices or other 
measurement techniques for monitoring the rate of fuel consumption at 
the Kennecott Power Plant. Values for fuel consumption are needed to 
determine compliance with emission limits in submitted SIP sections 
IX.H.2.i(1)(a) and (b). In contrast to the submitted SIP, the EPA-
approved SIP does specify the location and technique of measuring 
natural gas consumption. Without specific, accurate, and replicable 
techniques for measuring both the natural gas consumption and the coal 
consumption, Utah's submitted emission limits for Kennecott Power Plant 
are not practically enforceable and the submitted SIP is not 
approvable. In addition, the opening sentence in submitted SIP section 
IX.H.2.i.(1)(f) reads, ``To determine compliance with a daily limit 
owner/operator shall calculate a daily limit.'' This is unclear. This 
lack of clarity also undermines SIP enforceability.
    (F) Stack tests once every five years are not frequent enough for 
re-establishing NOX emission factors at Central Valley Water 
Reclamation. Submitted SIP section IX.H.2.b.(2), which applies to 
Central Valley Water Reclamation, requires a stack test at least once 
every five years, for re-establishing emission factors necessary to 
show compliance with NOX emission limits at the engines. All 
of the engines are equipped with air-fuel ratio controllers that must 
be adjusted properly to avoid excessive NOX emission rates, 
and some of the engines are also equipped with catalytic converters for 
NOX control that can degrade if not maintained properly. 
Thus, EPA considers once every five years not frequent enough to ensure 
compliance with the limit. Once every year or every three years 
typically appears in other sections of the EPA-approved SIP for other 
sources where emission control devices are involved, and should be 
required here also. Less frequent stack testing is not acceptable 
without monitoring of catalyst degradation and proper adjustment of 
air-fuel ratio controllers on a reasonable frequency.
    Unlike the submitted SIP, the EPA-approved SIP requires monthly 
NOX emission measurement by a portable analyzer at all 
engines at Central Valley Water Reclamation. For the engines equipped 
with catalytic converters, the EPA-approved SIP also requires monthly 
evaluation of catalyst degradation.
    The EPA-approved SIP also restricts Central Valley Water 
Reclamation's fuel to natural gas or digester gas, a restriction that 
Utah assumed would continue to apply when it prepared its emission 
inventory for its maintenance plan. However, Utah did not include the 
restriction in the submitted SIP. This restriction must be enforceable 
to be a valid assumption in the maintenance demonstration.
    (ii) Blanket exemptions from emission limits at refineries during 
startup/shutdown/malfunction periods. Submitted SIP section 
IX.H.1.h.(1)(a) says the requirement for 95% sulfur removal efficiency 
at refinery SRUs applies ``except for startup, shutdown, or malfunction 
of the SRU.'' Similarly, submitted SIP section IX.H.1.h.(1)(b) 
indicates that the requirement to reduce the hydrogen sulfide 
(H2S) content of the refinery plant gas to 0.10 grains per 
dry standard cubic foot (160 parts per million or less) applies 
``except for startup, shutdown, or malfunction of the amine plant.'' 
These provisions constitute blanket exemptions during startups, 
shutdowns, and malfunctions. EPA's interpretations regarding treatment 
of emissions during these periods in SIPs are more fully described in 
the following EPA Federal Register notices and policy memoranda: (1) 
September 20, 1999, memorandum from Steve Herman and Robert Perciasepe, 
EPA Assistant Administrators, to EPA Regional Offices, entitled ``State 
Implementation Plans: Policy Regarding Excess Emissions During 
Malfunctions, Startup, and Shutdown''; (2) April 27, 1977, final rule, 
``Utah SO2 Control Strategy'' (42 FR 21472); and 3) November 
8, 1977, final rule, ``Idaho SO2 Control Strategy'' (42 FR 
58171.) In short, EPA believes that it is inconsistent with the CAA to 
allow blanket exemptions from compliance with emission standards in 
SIPs for periods of startup, shutdown, and malfunction. This is because 
excess emissions during such periods may aggravate air quality so as to 
prevent attainment or interfere with maintenance of the NAAQS. 
Generally, EPA has said that such excess emissions must be treated as 
violations.\27\ Thus,

[[Page 62726]]

EPA proposes to disapprove the maintenance plan because it includes by 
reference these inappropriate exemptions in submitted SIP section IX.H.
---------------------------------------------------------------------------

    \27\ In our September 20, 1999, policy memorandum, we indicated 
that in certain limited circumstances, it may be appropriate for 
states, in consultation with EPA, to create narrowly-tailored 
exceptions in their SIPs to otherwise applicable emission limits 
during startup and shutdown. A state seeking to include such a 
narrowly-tailored startup/shutdown exception in its SIP would need 
to analyze the potential worst-case emissions that could occur 
during startup and shutdown and associated impacts on ambient air 
quality. The memorandum also identified other factors that EPA 
believes it would be important for a state to address. Also, in our 
September 1999 memorandum, we indicated that a SIP revision 
including such a narrowly-tailored startup/shutdown exception 
should, among other things, require the source owner or operator to 
show, following an exceedance of the otherwise applicable emission 
limit, that it operated its facility in a manner consistent with 
good practice for minimizing emissions; that it used best efforts to 
meet the otherwise applicable emission limit; that it took all 
possible steps to minimize the impact of emissions during startup 
and shutdown on ambient air quality; and that it minimized to the 
maximum extent practicable the frequency and duration of operation 
in startup or shutdown mode. Utah has not provided any analysis 
demonstrating the effects of these exceptions, as they relate to 
startup and shutdown periods, on the ability of the area to attain 
and maintain the standard, nor has Utah attempted to address any of 
the other criteria that EPA has recommended to support a narrowly-
tailored exemption for periods of startup and shutdown.
---------------------------------------------------------------------------

    (iii) Lack of appropriate restrictions for flaring emissions at 
refineries. Submitted SIP section IX.H.1.i.(2)(f) says: ``Emissions due 
to upset flaring shall not be included in the daily (24-hr) or annual 
compliance demonstrations.'' As indicated above, EPA cannot approve SIP 
provisions that provide blanket exemptions from compliance with 
emission standards for malfunction or upset emissions. We recognize 
that flares are sometimes used as emergency devices, but this does not 
justify excluding upset flare emissions at the refineries from limits 
in the SIP. (See, e.g., the Billings/Laurel SO2 Federal 
Implementation Plan, 73 FR 21418, April 21, 2008.) We are concerned 
that flare emissions during upsets might interfere with maintenance of 
the NAAQS, and that submitted SIP section IX.H.1.i(2) would explicitly 
ignore such emissions for purposes of assessing compliance with daily 
and annual emissions caps.
    The submitted SIP also does not properly address flare emissions 
during periods other than upsets. In submitted SIP section IX.H.2, it 
is unclear whether Utah intended flare emissions (even in non-upset 
situations) to be accounted for in determining compliance with the 
daily and annual emission caps at the refineries. For example, 
submitted SIP section IX.H.2.c.(2)(a) for Chevron provides: ``Combined 
emissions of sulfur dioxide from gas-fired compressor drivers and all 
external combustion process equipment, including the FCC CO Boiler and 
Catalyst Regenerator, shall not exceed 2.977 tons/day.'' A similar form 
of emission limit is expressed for the other four refineries as well. 
It is unclear whether the term ``external combustion process 
equipment'' includes the refinery flares. Refinery flaring can be a 
significant source of emissions that should be clearly accounted for in 
the maintenance plan. Even if it were clear that flare emissions were 
included in the emission limits for the refineries, Utah's submitted 
SIP does not specify an adequate means to determine flare emissions. 
The submitted SIP states that emissions from external combustion 
process equipment shall be determined by multiplying the appropriate 
emission factor (from section IX.H.1.i.2 or from testing) by the 
relevant parameter (e.g. hours of operation, feed rate, or quantity of 
fuel combusted). However, as noted above, submitted SIP section 
IX.H.1.i.2 specifies no emission factors for PM10 and NOx. 
For SO2, an emission factor is specified, based on sampling 
of H2S in refinery fuel gas. But, it is highly unlikely that 
H2S content sampled in the refinery fuel gas would be 
representative of H2S going to the flare during all periods 
of operation. Also, this approach would not account for other sulfur 
compounds that may be going to the flare. Finally, Utah's submitted SIP 
provides no means to determine flow to the flares (in either normal 
operation or upset situations), which would be essential to determining 
flare emissions. Because Utah did not properly address flare emissions, 
the maintenance plan is unapprovable.
    (iv) Deletion of certain NOX emission limits at 
Bountiful City Power. The EPA-approved SIP includes NOX 
emission limits of 79.5 lbs/hr and 3.70 grams/hp-hr for the 9,750-
horsepower dual-fuel engine, which is by far the largest potential 
emitting unit at the Bountiful facility. No emission limits or 
restrictions on operating hours are included for this engine in the 
submitted SIP. Similarly, the submitted SIP deletes emission limits for 
other dual-fuel engines, but contains no restriction on their 
operation. The maintenance plan's inventory and maintenance 
demonstration does not properly account for the lack of restrictions or 
limits on these engines.
    (v) Permits for Kennecott Power Plant superseding the SIP. For 
Kennecott Power Plant, submitted SIP sections IX.H.2.i.(1)(a) and (g) 
provide that the requirements in submitted SIP sections IX.H.2.i.(1)(a) 
through (f) for emission limits and compliance demonstration 
requirements apply ``unless and until'' a Notice of Intent (i.e., New 
Source Review permit application) is submitted for ``specific 
technologies'' and an Approval Order (permit) is issued. This revision 
would undermine the enforceability of the SIP because a control measure 
relied on in the maintenance plan could be changed through an Approval 
Order, making the original limit unenforceable. Also, the process for 
issuing an Approval Order is an inadequate substitute for revising the 
SIP. The latter requires EPA approval and public involvement at both 
state and Federal levels. Section 110(i) of the Act, with exceptions 
not relevant here, does not allow a state to revise stationary source 
SIP requirements through issuance of an Approval Order (i.e., a New 
Source Review permit.)
    (vi) Lack of restriction on annual NOX emissions at 
Kennecott Bingham Canyon Mine, and lack of restriction on daily 
emissions of any pollutant. Utah's inventory assumes that 
NOX emissions from the mine are limited to 5,078 tons per 
year, but submitted SIP section IX.H.2.h.(1) contains no corresponding 
NOX limit or operating restrictions consistent with 
NOX emission rates used in the inventory. It only limits 
SO2 emissions. Submitted SIP section IX.H.2.h.(1) also does 
not restrict daily emissions of PM10, NOX, or 
SO2. Since the PM10 maintenance plan must address 
the PM10 NAAQS, which is a 24-hour standard, the maintenance 
plan must include a daily emissions limit or daily operating 
restriction corresponding to the daily PM10, NOX, 
and SO2 emission rates necessary to demonstrate maintenance. 
The lack of these limits renders the maintenance demonstration invalid.
    (vii) Lack of requirement for control of fugitive particulate 
emissions at Kennecott Bingham Canyon Mine. Submitted SIP section 
IX.H.2.h.(1) does not include any requirements to control fugitive 
particulate emissions, even though the inventory and maintenance 
demonstration assume that fugitive dust emissions from the mine are 
limited. This is a significant change from the EPA-approved SIP, which 
contains numerous measures for control of fugitive particulate 
emissions from the mine.
    Because of the numerous deficiencies in submitted SIP section IX.H, 
the maintenance plan for Salt Lake County is inadequate to ensure 
maintenance of the PM10 NAAQS as required by section 175A(a) 
of the Act.
    b. Prior stationary source control measures for Salt Lake County 
sources are not included as potential contingency measures. Pursuant to 
section 175A(d) of the Act, the maintenance plan must include as 
potential contingency measures all control measures that were contained 
in the SIP for the area before redesignation. As noted above, as part 
of its adoption of the maintenance plan for Salt Lake County, Utah 
revised as a matter of State law the stationary source limits for Salt 
Lake County sources in section IX.H of the SIP, sometimes removing them 
entirely and sometimes making them less stringent. Contrary to the

[[Page 62727]]

requirement of section 175A(d) of the Act, the Salt Lake County 
maintenance plan does not list as a potential contingency measure the 
re-implementation of the prior version of the Salt Lake County 
stationary source control measures. While we are proposing to 
disapprove Utah's proposed changes to the Salt Lake County stationary 
source control measures, this is an additional, independent reason we 
are proposing to disapprove the Salt Lake County maintenance plan. Put 
another way, even if we could approve all of Utah's proposed changes to 
the stationary source control measures, we would be unable to approve 
the maintenance plan because it fails to list as a potential 
contingency measure the re-implementation of the relevant measures.
4. Deficiencies Applicable to the Utah County Maintenance Plan
    a. Maintenance plan relies on deficient measures for stationary 
sources in Utah County. Utah revised as a matter of State law the 
stationary source control measures for Utah County in section IX.H.3 of 
the SIP, incorporated these State-revised measures into its proposed 
maintenance plan (see submitted SIP Section IX.A.10, pages 30-31), and 
based its maintenance demonstration on the assumption that these State-
revised measures would be approved into the SIP by EPA and would 
therefore be in place. Utah's revisions to section IX.H.3 are not 
approvable. Specifically, Utah has added emission limits for Payson 
City Power to IX.H.3. As part of those limits, Utah has included an 
exemption from opacity limits for certain periods during startup and 
shutdown. Utah has not adequately explained or justified this exemption 
as a narrowly-tailored exception to the otherwise applicable emission 
limits in accordance with our interpretation of the Act or established 
appropriate conditions for such an exception. (See discussion above in 
section IV.B.3.a.ii of this action regarding excess emissions during 
startup, shutdown, and malfunctions.) This is another reason the Utah 
County maintenance plan, which relies on the control measures in 
submitted SIP section IX.H.3, is unapprovable.

V. Sections IX.H.1-4 of Utah's September 2, 2005 Submission

    We are proposing to disapprove the provisions contained in 
submitted SIP sections IX.H.1-4. In section IV of this action, above, 
we identify a number of deficiencies in submitted sections IX.H.1-3. 
Based on these deficiencies, submitted sections IX.H.1-3 do not meet 
the requirements of section 110 of the Act.
    We also note in section IV, above, that Utah has either removed or 
altered a number of stationary source requirements in section IX.H.2. 
Section 110(l) of the Act provides that EPA shall not approve a SIP 
revision if it would interfere with any applicable requirement 
concerning attainment and reasonable further progress or any other 
applicable requirement of the Act. The maintenance plan for 
PM10 is not approvable, and there has been no section 110(l) 
demonstration that these proposed changes will not interfere with 
attainment of the PM10 or other NAAQS, or with additional 
Act requirements. We believe these proposed changes pose a problem 
under section 110(l) of the Act because they will likely result in an 
increase in emissions in the Salt Lake County area, which is already 
experiencing violations of the PM10, PM2.5, and 
ozone NAAQS. Thus, this is another reason we cannot approve Utah's 
submitted revisions to section IX.H.2.
    We are proposing to disapprove submitted SIP section IX.H.4 
(``Establishment of Alternative Requirements'') because this section 
depends on the validity of submitted sections IX.H.1-3, which we are 
proposing to disapprove. Submitted section IX.H.4 would permit Utah to 
establish alternatives to the requirements in sections IX.H.1-3 through 
the use of Utah's Title V operating permits program. Submitted section 
IX.H.4 reads, in part, as follows:

    In lieu of the requirements imposed pursuant to Subsections 
IX.H.1, 2 and 3 above, a facility owner may comply with alternative 
requirements, provided the requirements are established pursuant to 
the permit issuance, renewal, or significant permit revision process 
found in R307-415 and are consistent with the streamlining 
procedures and guidelines set forth in Subsections b and c below.

In other words, the requirements of submitted sections IX.H.1-3 are a 
necessary benchmark for the implementation of submitted section IX.H.4. 
Because we are proposing to disapprove submitted sections IX.H.1-3, we 
are also proposing to disapprove submitted section IX.H.4.

VI. Rule Revisions

    With the redesignation requests and maintenance plans, Utah 
submitted several specific rule revisions. Utah relied on some of these 
revised rules to support the maintenance plans. Evidently, Utah made 
other rule revisions in anticipation that we would redesignate the 
areas from nonattainment to attainment. We evaluate each of these 
provisions below.
    A. R307-101-2. ``Definitions.'' Utah deleted certain definitions 
from this rule and revised or added others. We evaluate these various 
changes below.
    1. Utah deleted the definition for ``Actual Area of 
Nonattainment.'' We are proposing to disapprove this change because at 
least one other rule in the EPA-approved SIP uses this term. EPA-
approved R307-403-2 requires a source constructed in an actual area of 
nonattainment to meet certain emission limits. Utah has not given us a 
revision to R307-403-2 to replace the term ``Actual Area of 
Nonattainment.'' Also, the term may appear in other provisions of the 
EPA-approved SIP that EPA has not identified.
    2. Utah revised the definition of ``Baseline Date'' so as to 
redefine the major source baseline date in areas redesignated to 
attainment. We are proposing to disapprove this change because there is 
no provision in the Act or our regulations that allows a state to 
establish a major source baseline date other than January 6, 1975 for 
PM10 and SO2. (See section 169(4) of the CAA and 
40 CFR 51.166(b)(14)(i).)
    3. Utah added a definition of ``EPA Method 9.'' Since the 
definition merely cross-references EPA's definition of Method 9, at 40 
CFR part 60, we are proposing to approve it.
    4. Utah added a definition for ``Maintenance Area.'' The definition 
reads, `` `Maintenance Area' means an area that is subject to the 
provisions of a maintenance plan that is included in the Utah state 
implementation plan, and that has been redesignated by EPA from 
nonattainment to attainment of any National Ambient Air Quality 
Standard.'' The definition then lists maintenance areas in Utah for 
different pollutants. We are proposing to approve the first paragraph 
and subsections (a) and (b) of this addition and to disapprove 
subsections (c) and (d). Subsections (a) and (b) list maintenance areas 
for ozone and carbon monoxide. We have redesignated the listed areas 
from nonattainment to attainment and have approved maintenance plans 
for the areas. Subsections (c) and (d) list maintenance areas for 
PM10 and SO2. However, for the listed areas--Salt 
Lake County, Utah County, and Ogden City for PM10, and Salt 
Lake County and the eastern portion of Tooele County above 5600 feet 
for SO2--we have not approved redesignations or maintenance 
plans. In addition, in this action, we are proposing to disapprove the 
redesignation requests and maintenance plans for PM10 for 
Salt Lake County,

[[Page 62728]]

Utah County, and Ogden City. While subsections (c) and (d), with one 
exception, provide that these PM10 and SO2 areas 
would not be considered maintenance areas until EPA approves the 
maintenance plans for the areas, we think it would merely confuse the 
public and the regulated community if we were to approve language that 
implies that these areas may be maintenance areas or that we may 
approve redesignation requests and maintenance plans for these areas. 
The one exception we refer to pertains to Tooele County. Subsection (d) 
of the definition indicates that the eastern portion of Tooele County 
above 5600 feet is a maintenance area for SO2 and contains 
no condition based on EPA approval of a maintenance plan for the area. 
Because EPA has not approved a redesignation request or maintenance 
plan for this area, it is still designated nonattainment for sulfur 
dioxide (40 CFR 81.34), and it would be inappropriate for us to approve 
a definition that indicates the area is a maintenance area.
    5. Utah revised the definition of ``Nonattainment Area.'' The 
revised definition reads, `` `Nonattainment Area' means an area 
designated by the Environmental Protection Agency as nonattainment 
under Section 107, Clean Air Act for any National Ambient Air Quality 
Standard. The designations for Utah are listed in 40 CFR 81.345.'' We 
are proposing to approve the revised definition because it merely 
cross-references our official area designations at 40 CFR 81.345.
    6. Utah deleted the definition of ``PM10 Nonattainment Area.'' The 
definition reads, `` `PM10 Nonattainment Area' means Salt Lake County, 
Utah County, or Ogden City.'' We are proposing to approve the deletion 
of this definition based on Utah's revision to the definition of 
``Nonattainment Area,'' described immediately above. If we finalize our 
proposal, the meaning of the term PM10 Nonattainment Area 
will depend on the PM10 area designations appearing at 40 
CFR 81.345.
    7. Utah replaced the term ``PM10 Particulate Matter'' with the term 
``PM10.'' We are proposing to approve this change because Utah only 
changed the term. Utah did not change the definition of the term.
    8. Utah revised the definition of ``PM10 Precursor'' to delete the 
sentence, ``It includes sulfur dioxide and nitrogen oxides.'' The 
revised definition reads, `` `PM10 Precursor' means any chemical 
compound or substance, which, after it has been emitted into the 
atmosphere, undergoes chemical or physical changes that convert it into 
particulate matter, specifically PM10.'' We are proposing to approve 
this change because the deletion of the one sentence will not change 
the meaning of the term. Sulfur dioxide and nitrogen oxides would still 
be considered PM10 precursors under Utah's revised 
definition. In a memorandum to the Utah Air Quality Board dated June 
23, 2005, the Utah Division of Air Quality indicated that the specific 
reference to sulfur dioxide and nitrogen dioxides was removed to avoid 
the implication that there were no other PM10 precursors to 
consider.
    9. Utah added a definition of ``Road.'' We are proposing to approve 
this definition as it merely defines the term to mean any public or 
private road.
    10. Utah changed the definition of ``Significant'' by substituting 
the term ``PM10'' for the term ``PM10 Particulate Matter.'' We are 
proposing to approve this change because it coincides with Utah's 
substitution of the term ``PM10'' for ``PM10 Particulate Matter'' 
elsewhere in the Definitions section.
    B. R307-165. ``Emission Testing.'' Utah's revised rule contains 
five sections: R307-165-1, ``Purpose;'' R307-165-2, ``Testing Every 5 
Years;'' R307-165-3, ``Notification of DAQ;'' R307-165-4, ``Test 
Conditions;'' and R307-165-5, ``Rejection of Test Results.'' R307-165-1 
is new. The other four sections are contained in the EPA-approved SIP, 
but Utah has renumbered them and made revisions to them. R307-165-2 
provides that emission testing is required at least once every five 
years for all sources with emission limits in Approval Orders or in 
section IX.H of the SIP (i.e., the PM10 SIP limits). In 
addition, R307-165-2 provides that the Utah Air Quality Board may grant 
exceptions to the mandatory testing requirements of R307-165-2 that are 
consistent with the purposes of R307. We believe five years is not 
frequent enough to satisfy the requirements of the Act and our 
regulations for practical enforceability and periodic testing and 
inspection of stationary sources. (See, e.g., sections 110(a)(2)(A), 
(C), and (F) of the Act; 40 CFR 51.210, 51.212.) We recognize that the 
five-year period is contained in the EPA-approved SIP. However, it 
would be inappropriate for us to re-approve this provision. It would 
also be inappropriate for us to re-approve the Board's discretionary 
authority to grant exceptions to R307-165-2's mandatory testing 
requirements because the exercise of such discretionary authority would 
undermine the enforceability of the SIP.
    C. R307-302. ``Davis, Salt Lake, Utah, Weber Counties: Residential 
Fireplaces and Stoves.'' Utah's revised R307-302 contains residential 
fuel-burning restrictions and has five sections: R307-302-1, 
``Definitions;'' R307-302-2, ``Applicability;'' R307-302-3, ``No-Burn 
Periods for Fine Particulate;'' R307-302-4, ``No-Burn Periods for 
Carbon Monoxide;'' and R307-302-5, ``Opacity for Residential Heating.'' 
R307-302-1 is unchanged from the EPA-approved rule. R307-302-2 is new. 
R307-302-3 and 4 are contained in the EPA-approved rule, but Utah has 
renumbered and made revisions to them. The restrictions in R307-302-5, 
which are new to R307-302, also appear in EPA-approved R307-201-3; but, 
the geographic scope of R307-302-5 is more limited. Finally, Utah has 
deleted EPA-approved R307-302-4, ``Violations,'' from its State rules.
    We are proposing to approve some parts of Utah's revised R307-302 
and disapprove other parts. We are proposing to approve R307-302-1, 
R307-302-2(1), and R307-302-3, as submitted by Utah, and we are 
proposing to approve Utah's deletion of EPA-approved R307-302-4, for 
the following reasons:
    1. R307-302-1 merely defines ``Sole Source of Heat'' and is 
unchanged from the current SIP. The definition is acceptable, and, 
thus, we are proposing to re-approve it.
    2. R307-302-2(1), part of Utah's new ``Applicability'' section, 
specifies that the residential fuel burning restrictions for 
particulate matter contained in R307-302-3 (``No-Burn Periods for Fine 
Particulate'') apply in parts of Utah County, all of Salt Lake County, 
all of Davis County, and in parts of Weber County. This represents an 
expansion of the geographic scope of the EPA-approved particulate 
matter provision, which applies in only part of Davis County and does 
not apply in any part of Weber County. This expansion in area 
strengthens the rule. Thus, we are proposing to approve R307-302-2(1).
    3. Revised R307-302-3 (``No-Burn Periods for Fine Particulate''), 
specifies residential fuel-burning restrictions and requirements for 
particulate matter only, including the trigger levels for mandatory no-
burn periods. These provisions are essentially the same as those 
contained in the EPA-approved rule, except that Utah has expanded the 
area in which the rule would apply through the applicability provisions 
in revised R307-302-2(1) and has submitted for our approval contingency 
provisions that are not part of the EPA-approved SIP. If the 
contingency provisions are triggered, no-burn periods would start when 
monitored PM10 levels reached 110 micrograms per cubic meter 
instead of the normal 120

[[Page 62729]]

micrograms per cubic meter, and restrictions on sale and installation 
of solid fuel burning devices would go into effect. Because these 
changes would strengthen the SIP, we are proposing to approve them.\28\
---------------------------------------------------------------------------

    \28\ We note that Utah did not submit one subsection of revised 
R307-302-3 to us for approval--specifically, R307-302-3(4), which 
contains no-burn triggers based on PM2.5 concentrations. 
This is an entirely new provision that is not in the EPA-approved 
version of the rule. Because Utah did not submit it to us, we cannot 
act on it.
---------------------------------------------------------------------------

    4. The EPA-approved version of R307-302-4 (``Violations'') provides 
that it is a violation of R307-302 to operate a residential solid fuel 
burning device or fireplace during a mandatory no-burn period. Utah 
deleted this provision from R307-302 and indicated in response to 
comments that it removed this provision because it was redundant and 
unnecessary. According to Utah, ``As with all of our other rules, if a 
person does not comply with the requirements, it is considered a 
violation of the rule.'' We agree that this deletion will not affect 
the State's, EPA's, or citizens' ability to enforce the requirements of 
the rule. Thus, we are proposing to approve the deletion of R307-302-4 
(``Violations'').
    We are proposing to disapprove R307-302-2(2) and (3), R307-302-4, 
and R307-302-5, as submitted by Utah, and we are proposing to 
disapprove Utah's proposed deletion of EPA-approved R307-302-3. These 
provisions are distinct from the parts of R307-302 we are proposing to 
approve because they either relate to a different pollutant (carbon 
monoxide) or a different requirement (opacity limit.) We are proposing 
to disapprove these submitted provisions for the following reasons:
    1. R307-302-2(2), R307-302-4, and Utah's proposed deletion of 
current EPA-approved R307-302-3. The current EPA-approved version of 
R307-302-3 (``No-Burn Periods for Carbon Monoxide'') contains 
residential fuel burning restrictions for carbon monoxide. Its no-burn 
requirements apply to Orem City as well as Provo. Utah has renumbered 
R307-302-3 as R307-302-4. In addition, through the addition of new 
applicability provisions in R307-302-2(2) and changes within R307-302-
4, Utah has reduced the area to which the no-burn requirements for 
carbon monoxide would apply. Specifically, they would no longer apply 
to Orem City. As noted previously, section 110(l) of the Act provides 
that EPA shall not approve a SIP revision if it would interfere with 
any applicable requirement concerning attainment and reasonable further 
progress or any other applicable requirement of the Act. There has been 
no section 110(l) demonstration that this change would not interfere 
with attainment or maintenance of NAAQS. We believe the change poses a 
problem under section 110(l) of the Act because it may result in an 
increase in emissions from residential fuel burning in Orem City that 
could have a negative effect on attainment or maintenance of one or 
more NAAQS. Thus, we are proposing to disapprove R307-302-2(2) and 
R307-302-4, as submitted by Utah, as well as Utah's proposed deletion 
of the current EPA-approved version of R307-302-3.\29\
---------------------------------------------------------------------------

    \29\ If we finalize our proposal, both the current EPA-approved 
version of R307-302-3, which relates to no-burn periods for carbon 
monoxide, and Utah's revised R307-302-3, which relates to no-burn 
periods for particulate matter and that we are proposing to approve 
today, would be part of the Federally enforceable SIP.
---------------------------------------------------------------------------

    2. R307-302-2(3) and R307-302-5. R307-302-2(3), part of Utah's new 
``Applicability'' section in R307-302, specifies that the opacity 
limits in R307-302-5 (``Opacity for Residential Heating'') apply in 
``both areas,'' which is a reference to the geographic areas specified 
in R307-302-2(1) and R307-302-2(2). As noted above, we are proposing to 
disapprove submitted R307-302-2(2). If we disapprove R307-302-2(2) as 
proposed, the meaning of R307-302-2(3), and the geographic scope of 
R307-302-5, will be unclear. Thus, we are also proposing to disapprove 
submitted R307-302-2(3) and R307-302-5.
    As mentioned above, the same opacity restrictions contained in 
R307-302-5 are also contained in current EPA-approved R307-201-3. The 
only difference is that R307-201-3 applies everywhere in the State, 
while R307-302-5 was apparently only intended to apply in certain areas 
along the Wasatch Front. Utah has not submitted changes to R307-201-3 
or proposed that it be deleted from the EPA-approved SIP. Because R307-
201-3 is still in the EPA-approved SIP, there will be no gap in the 
coverage of the opacity limits on residential heating if we disapprove 
submitted R307-302-2(3) and R307-302-5.
    D. R307-305. ``Nonattainment and Maintenance Areas for PM10: 
Emission Standards.'' Utah's revised R307-305 specifies certain generic 
requirements and standards that would apply within PM10 
nonattainment and maintenance areas. The rule would replace the current 
EPA-approved version of R307-305 (``Davis, Salt Lake and Utah Counties 
and Ogden City, and Nonattainment Areas for PM10: 
Particulates''). The revised rule has seven sections: R307-305-1, 
``Purpose;'' R307-305-2, ``Applicability;'' R307-305-3, ``Visible 
Emissions;'' R307-305-4, ``Particulate Emission Limitations and 
Operating Parameters (PM10);'' R307-305-5, ``Compliance 
Testing (PM10);'' R307-305-6, ``Automobile Emission Control 
Devices;'' and R307-305-7, ``Compliance Schedule for New Nonattainment 
Areas.'' R307-305-1, -2, -6, and -7 are new. R307-305-3 through 5 are 
contained in the EPA-approved rule as R307-305-1 through 3, but Utah 
has made revisions to these sections. Also, Utah has deleted EPA-
approved rule sections R307-305-4, ``Compliance Schedule 
(PM10);'' R307-305-5, ``Particulate Emission Limitations and 
Operating Parameters (TSP);'' R307-305-6, ``Compliance Schedule 
(TSP);'' and R307-305-7, ``Compliance Testing (TSP).''
    We are proposing to disapprove Utah's revised R307-305 for the 
following reasons:
    1. Revised R307-305-3 contains opacity limits for various sources 
in PM10 nonattainment and maintenance areas. While Utah kept 
the generic opacity limit of 20% for most sources and clarified various 
aspects of the rule, Utah deleted a 40% opacity limit that applied to 
certain older sources in areas other than PM10 nonattainment 
areas. Utah has not explained the deletion of the 40% opacity limit. 
There has been no section 110(l) demonstration that the deletion of the 
40% opacity limit would not interfere with attainment of NAAQS or other 
Act requirements. We believe that deletion of this standard poses a 
problem under section 110(l) of the Act because it may lead to an 
increase in emissions that could have a negative impact on attainment 
or maintenance of one or more NAAQS. Therefore, we cannot approve the 
deletion.
    Utah also added an exemption, at R307-305-3(4), from R307-305-3's 
opacity limits for short exceedances during various periods, including 
startup and shutdown. We recognize that EPA-approved R307-201 contains 
the same exemption. However, Utah has not explained or justified this 
exemption as a narrowly tailored exception to the otherwise applicable 
emission limits in accordance with our interpretation of the Act or 
established appropriate conditions for such an exception. (See 
discussion above in section IV.B.3.A.ii of this action regarding excess 
emissions during startup, shutdown, and malfunctions.) Thus, we do not 
consider it appropriate to re-approve the exemption.
    2. Utah's revised R307-305 deletes various provisions from the EPA-

[[Page 62730]]

approved SIP (R307-305-5 through -7) that pertain to control of total 
suspended particulates in Weber County, including emission limits for 
seven sources. There has been no section 110(l) demonstration that the 
deletion of these emission limits and related requirements will not 
interfere with attainment of NAAQS or other Act requirements. Utah, in 
its response to comments for its rulemaking action, indicated that some 
of the sources listed in EPA-approved R307-305-5 no longer exist, but 
did not specify which sources no longer exist. Utah also said that 
source Approval Orders contain equivalent or more stringent emission 
limits, but such Approval Orders are not a substitute for limits in the 
SIP. We believe that deletion of the limits poses a problem under 
section 110(l) of the Act because it may lead to an increase in 
emissions that could have a negative impact on attainment or 
maintenance of one or more NAAQS.
    In addition, section 193 of the Act provides that no control 
requirement in effect before November 15, 1990 (which would include the 
provisions in EPA-approved R307-305-5 through -7) in any area which is 
nonattainment for any pollutant may be modified in any manner unless 
the modification insures equivalent or greater emission reductions of 
such air pollutant. Ogden City, where some of the sources may be 
located, is nonattainment for PM10, and Weber County has 
recorded a violation of the PM2.5 NAAQS and has been 
designated nonattainment for that standard. We are unable to determine 
that Utah's proposed revisions to R307-305 will insure equivalent or 
greater emission reductions of PM2.5 or PM10.
    Because we are unable to conclude that approval would be consistent 
with the requirements of sections 110(l) and 193 of the Act, we are 
proposing to disapprove Utah's revised R307-305.
    E. R307-306. ``PM10 Nonattainment and Maintenance Areas: 
Abrasive Blasting.'' Utah's R307-306 establishes requirements that 
apply to abrasive blasting operations in PM10 nonattainment 
and maintenance areas. The EPA-approved SIP does not include a rule 
numbered R307-306. However, the EPA-approved SIP does include R307-206, 
which contains essentially the same requirements for abrasive blasting 
requirements, but applies to both attainment and nonattainment areas.
    We are proposing to disapprove R307-306 because the test method for 
measuring opacity at intermittent abrasive blasting operations is not 
adequate. As with the test method specified in submitted SIP section 
IX.H.1.g, which we discuss in section IV.B.2.b of this action, 
subsection R307-306-5 of R307-306 says: ``Visible emissions from 
intermittent sources shall use procedures similar to Method 9, but the 
requirement for observations to be made at 15 second intervals over a 
six minute period shall not apply.'' This language is not sufficiently 
clear.\30\ The language must indicate what test method will apply. 
Without this, we cannot be assured that the opacity limits for 
intermittent abrasive blasting operations will be enforceable.
---------------------------------------------------------------------------

    \30\ We recognize that this language is similar to language in 
EPA-approved R307-201, which applies to R307-206. However, due to 
the problems with this language, it would be inappropriate for us to 
re-approve it.
---------------------------------------------------------------------------

    F. R307-309. ``Nonattainment and Maintenance Areas for PM10: 
Fugitive Emissions and Fugitive Dust.'' This rule, which is not in the 
EPA-approved SIP, establishes work practices and emission standards for 
sources of fugitive emissions and fugitive dust listed in section IX.H 
of the SIP or located in PM10 nonattainment or maintenance 
areas. The EPA-approved SIP does include R307-1-4.05 (``Emissions 
Standards. Fugitive Emissions and Fugitive Dust''), which contains 
provisions to control fugitive emissions and fugitive dust in both 
attainment and nonattainment areas.
    We are proposing to disapprove R307-309. First, the rule doesn't 
adequately specify in an enforceable form the requirements that sources 
must meet to limit fugitive dust and fugitive emissions. For example, 
for mining activities and tailings piles and ponds, owners or operators 
must ``take steps to minimize fugitive dust'' (R307-309-10 and R307-
309-11). This is not sufficiently defined to be an enforceable 
standard. R307-309-6(2) merely suggests potential control measures. 
Further detail is left to a fugitive dust control plan that is not part 
of the rule and that can be approved or modified without EPA approval 
or public input. EPA is unable to verify that the control plans for 
such sources are adequate to ensure attainment and maintenance of the 
NAAQS or meet other Act requirements.
    Second, R307-309-5, a subsection of R307-309, specifies opacity 
limits for fugitive dust, but then indicates these limits do not apply 
when wind speeds exceed 25 miles per hour and the owner or operator is 
taking ``appropriate actions to control fugitive dust.'' This exemption 
does not appear in EPA-approved R307-1-4.05, and we believe the 
exemption could lead to an increase in emissions. Furthermore, the rule 
defines ``appropriate actions to control fugitive dust'' by reference 
to the fugitive dust control plan, which, as explained above, EPA has 
no opportunity to review or approve. Finally, the rule does not 
adequately define or specify the method for measuring opacity at 
intermittent sources. We discuss this issue in greater detail in 
section IV.B.2.b of this action.
    Third, R307-309 contains certain requirements that pertain to roads 
that would constitute a relaxation of EPA-approved R307-1-4.05.
    There has been no section 110(l) demonstration that the various 
changes R307-309 would make to EPA-approved R307-1-4.05 would not 
interfere with attainment or maintenance of NAAQS or other Act 
requirements. We believe the proposed changes pose a problem under 
section 110(l) of the Act because they may lead to an increase in 
emissions that could have a negative impact on attainment or 
maintenance of one or more NAAQS, particularly since Salt Lake County 
and Utah County have already experienced exceedances of the 
PM10 NAAQS associated with fugitive emissions and dust.
    We're also concerned that approval of R307-309 would make it 
difficult for us to delineate which aspects of EPA-approved R307-1-4.05 
remain in force and which do not. We recognize that EPA-approved R307-
1-4.05 contains some of the same flaws we describe above. However, once 
we've identified issues with the enforceability of current provisions, 
it would be inappropriate for us to reapprove them.
    G. R307-310. ``Salt Lake County: Trading of Emission Budgets for 
Transportation Conformity.'' EPA is proposing to take no action on the 
change to this rule. Utah has merely added section R307-310-5, 
``Transition Provision,'' to the EPA-approved R307-310 (which contains 
only R307-310-1 through 4), but has resubmitted the entire rule. R307-
310-5 indicates that R307-310-1 through -4 only remain in effect until 
EPA approves the conformity budgets in Utah's PM10 
maintenance plan for Salt Lake County. R307-310-1 through -4 allow 
trading between the Salt Lake County PM10 attainment plan's 
motor vehicle emission budgets for PM10 and 
NOX.\31\ EPA is proposing to disapprove the Salt Lake County 
PM10 maintenance plan and, as noted in section VII below, 
the maintenance plan's motor vehicle emission budgets. Our disapproval 
of the motor vehicle emissions budgets would moot any potential effect 
of R307-310-5; thus, there would be no

[[Page 62731]]

purpose in our acting on R307-310-5. If, as proposed, we do not act on 
Utah's revised R307-310, the provisions of EPA-approved R307-310-1 
through 4 will continue in effect.
---------------------------------------------------------------------------

    \31\ EPA approved the PM10 attainment plan on July 8, 
1994 (59 FR 35036.)
---------------------------------------------------------------------------

    H. R307-110-10. ``Section IX, Control Measures for Area and Point 
Sources, Part A, Fine Particulate Matter.'' The rule incorporates by 
reference into Utah's rules the submitted PM10 maintenance 
plans for Salt Lake County, Utah County, and Ogden City. Because we are 
proposing to disapprove the maintenance plans, we are also proposing to 
disapprove this rule.
    I. R307-110-17. ``Section IX, Control Measures for Area and Point 
Sources, Part H, Emissions Limits.'' The rule incorporates by reference 
into Utah's rules the stationary source requirements contained in 
submitted SIP section IX.H. Because we are proposing to disapprove the 
provisions in submitted IX.H.1-4, we are also proposing to disapprove 
this rule.

VII. Transportation Conformity--Motor Vehicle Emissions Budgets

    We are proposing to disapprove the motor vehicle emissions budgets 
contained in the submitted Salt Lake County, Utah County, and Ogden 
City PM10 maintenance plans. The transportation conformity 
provisions of section 176(c)(2)(A) of the CAA require regional 
transportation plans and programs to show that ``* * * emissions 
expected from implementation of plans and programs are consistent with 
estimates of emissions from motor vehicles and necessary emissions 
reductions contained in the applicable implementation plan* * *'' These 
``estimates of emissions'' are in the form of motor vehicle emissions 
budgets (40 CFR 93.118).
    Consistent with 40 CFR 93.118(e)(4)(iv), EPA will not approve a 
motor vehicle emissions budget unless the budget, ``when considered 
together with all other emissions sources, is consistent with 
applicable requirements for * * * maintenance.'' As described in 
section IV.B of this action, above, we are proposing to disapprove the 
submitted PM10 maintenance plans and maintenance 
demonstrations for Salt Lake County, Utah County, and Ogden City. In 
that section, we identify a number of concerns with the assumptions 
Utah used in the modeling, including Utah's inappropriate treatment of 
Kennecott's banked SO2 emissions and unjustified reduction 
of re-entrained road dust emissions. We also identify concerns with the 
control measures underlying Utah's maintenance demonstration. Due to 
these various concerns, we cannot find that the submitted maintenance 
plans will be adequate to maintain the PM10 NAAQS for the 
10-year period, as required by section 175A of the Act.
    Utah modeled its proposed motor vehicle emission budgets in its 
submitted maintenance plans along with emission projections for all 
other source categories. Under 40 CFR 93.118(e)(4)(iv), we cannot 
evaluate the adequacy of the motor vehicle emission budgets without 
considering the overall adequacy of the maintenance demonstrations, and 
in particular the modeling supporting the demonstrations, because the 
same modeling provided the basis for the proposed motor vehicle 
emissions budgets. Because the maintenance demonstrations for all three 
areas are invalid, we are unable to conclude that the motor vehicle 
emissions budgets, when considered together with all other emissions 
sources, are consistent with maintenance of the PM10 NAAQS.
    If we finalize our proposed disapproval of the motor vehicle 
emissions budgets in the submitted maintenance plans, those budgets 
will be unavailable for use in conformity determinations, and the areas 
will need to continue \32\ addressing transportation conformity as 
follows:
---------------------------------------------------------------------------

    \32\ The submitted maintenance plans' motor vehicle emissions 
budgets have not been available for use pending this action because 
EPA never determined the budgets to be adequate pursuant to 40 CFR 
93.118(e) and (f).
---------------------------------------------------------------------------

    A. Salt Lake County: Per 40 CFR 93.118, conformity will have to be 
shown to the following 2003 motor vehicle emissions budgets: 40.30 tons 
per day (tpd) of direct PM10 and 32.30 tpd of 
NOX. These values are derived from the Salt Lake County 
PM10 attainment plan that EPA approved on July 8, 1994 (59 
FR 35036).
    B. Utah County: Per 40 CFR 93.118, conformity will have to be shown 
to the following motor vehicle emissions budgets, which are contained 
in the Utah County PM10 attainment plan that EPA approved on 
December 23, 2002 (67 FR 78181):

------------------------------------------------------------------------
                                            Direct PM10
                  Year                         (tpd)        NOX  (tpd)
------------------------------------------------------------------------
2003....................................            6.57           20.35
2010....................................            7.74           12.75
2020....................................           10.34            5.12
------------------------------------------------------------------------

    C. Ogden City: Because EPA has not approved a PM10 SIP 
revision for the Ogden City area, there are no motor vehicle emissions 
budgets as defined in 40 CFR 93.101. Instead, conformity demonstrations 
will have to show that direct PM10 and NOX 
emissions are either not greater than 1990 emissions or not greater 
than ``no build'' emissions (40 CFR 93.119(d)). The 1990 direct 
PM10 emissions and NOX emissions for the Ogden 
City area are currently defined as 4.57 tpd and 2.28 tpd, respectively.

VIII. Proposed Action

    As described above, EPA is proposing to disapprove Utah's September 
2, 2005 redesignation requests for the Salt Lake County, Utah County, 
and Ogden City PM10 nonattainment areas, the submitted 
PM10 maintenance plans for these areas, and the motor 
vehicle emissions budgets contained in the maintenance plans. EPA is 
proposing to approve some of the associated SIP revisions, disapprove 
others, and take no action on one rule revision.
    EPA is also proposing to find that it is not required to act on 
proposed SIP revisions that Utah submitted on July 11, 1996 and June 2, 
1997 because those revisions have been superseded by revisions Utah 
subsequently adopted.
    EPA is soliciting public comments on its proposed rulemaking as 
discussed in this document. These comments will be considered before 
taking final action. Interested parties may participate in the Federal 
rulemaking process by submitting written comments to EPA as discussed 
in this action.

IX. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to the Office of Management and Budget (OMB) 
review and the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may: (1) Have an annual effect on the economy of $100 million 
or more or adversely affect in a material way the economy, a sector of 
the economy, productivity, competition, jobs, the environment, public 
health or safety, or state, local, or tribal governments or 
communities; (2) create a serious inconsistency or otherwise interfere 
with an action taken or planned by another agency; (3) materially alter 
the budgetary impact of entitlements, grants, user fees, or loan 
programs or the rights and obligations of recipients thereof; or (4) 
raise novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
Order.''

[[Page 62732]]

    The OMB has exempted this regulatory action from Executive Order 
12866 review.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
This action merely proposes to partially approve and partially 
disapprove revisions to the Utah State Implementation Plan and to 
disapprove a redesignation request.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    This proposed rule will not have a significant impact on a 
substantial number of small entities because SIP approvals and 
disapprovals under section 110 and subchapter I, part D of the Clean 
Air Act do not create any new requirements, but simply approve or 
disapprove requirements that the state is already imposing. Similarly, 
disapproval of a redesignation request only affects the legal 
designation of an area under the Clean Air Act and does not create any 
new requirements. Therefore, because the Federal SIP approval/
disapproval and redesignation disapproval does not create any new 
requirements, I certify that this action will not have a significant 
economic impact on a substantial number of small entities.
    Moreover, due to the nature of the Federal-state relationship under 
the Clean Air Act, preparation of flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of state action. The 
Clean Air Act forbids EPA to base its actions concerning SIPs on such 
grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 
42 U.S.C. 7410(a)(2).

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. 
L. 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on state, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to state, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    EPA has determined that this rule does not contain a Federal 
mandate that may result in expenditures of $100 million or more for 
state, local, and tribal governments, in the aggregate, or the private 
sector in any one year. This Federal action proposes to partially 
approve and partially disapprove pre-existing requirements under state 
or local law, and to disapprove a redesignation request, and imposes no 
new requirements. Accordingly, no additional costs to state, local, or 
tribal governments, or to the private sector, result from this action. 
Thus, today's rule is not subject to the requirements of sections 202 
and 205 of the UMRA.

E. Executive Order 13132, Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by state and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the states, on the relationship between the national 
government and the states, or on the distribution of power and 
responsibilities among the various levels of government.''
    This proposed rule does not have federalism implications. It will 
not have substantial direct effects on the states, on the relationship 
between the national government and the states, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. This rule merely proposes to 
partially approve and partially disapprove state rules implementing a 
Federal standard, and to disapprove a redesignation request, and does 
not alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. Thus, Executive 
Order 13132 does not apply to this rule.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    Executive Order 13175, entitled Consultation and Coordination with 
Indian Tribal Governments (65 FR 67249, November 9, 2000), requires EPA 
to develop an accountable process to ensure meaningful and timely input 
by tribal officials in the development of regulatory policies that have 
tribal implications. This proposed rule does not have tribal 
implications, as specified in Executive Order 13175. It will not have 
substantial direct effects on tribal governments, on the relationship 
between the Federal government and Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
government and Indian tribes. This action does not involve or impose 
any requirements that affect Indian Tribes. Thus, Executive Order 13175 
does not apply to this rule.
    EPA specifically solicits additional comment on this proposed rule 
from tribal officials.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is 
determined to be economically significant as defined under Executive 
Order 12866, and (2) concerns an environmental health or safety risk 
that EPA has reason to believe may have a disproportionate effect on 
children. If the regulatory action meets both criteria, the Agency must 
evaluate the environmental health or safety effects of the planned rule 
on children, and

[[Page 62733]]

explain why the planned regulation is preferable to other potentially 
effective and reasonably feasible alternatives considered by the 
Agency.
    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that are based on health or safety risks, such that 
the analysis required under section 5-501 of the Order has the 
potential to influence the regulation. This proposed rule is not 
subject to Executive Order 13045 because it proposes to partially 
approve and partially disapprove a state rule implementing a Federal 
program and to disapprove a redesignation request.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. The NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This proposed rulemaking does not involve technical standards. 
Therefore, EPA is not considering the use of any voluntary consensus 
standards.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Particulate matter, Reporting and recordkeeping 
requirements.

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

    Dated: November 18, 2009.
Carol Rushin,
Acting Regional Administrator, Region 8.
[FR Doc. E9-28692 Filed 11-30-09; 8:45 am]
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