Federal Register / Vol. 74, No. 229 / Tuesday, December 1, 2009 / Proposed Rules 62717 

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. 

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been superseded by subsequent 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: videtich.callie@epa.gov. • 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, roberts.catherine@epa.gov. 

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. 


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62718 Federal Register / Vol. 74, No. 229 / Tuesday, December 1, 2009 / Proposed Rules 

1EPA’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. 

2Under 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. 

(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. 

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

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 


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3Utah 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. 

4Utah subsequently changed the numbering of 

rules R307–2–10 and R307–2–17 to R307–110–10 

and R307–110–17. 

5Because 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. 

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. 

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. 

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. 

A. Redesignation Criterion 1—the Area 

Must Have Attained the PM10 NAAQS 

1. The level of the primary and 

secondary PM10 NAAQS is 150 


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62720 Federal Register / Vol. 74, No. 229 / Tuesday, December 1, 2009 / Proposed Rules 

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. 

7SLAMS 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). 

8A 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). 

micrograms per cubic meter (μg/m3), 

24-hour average concentration (40 CFR 

50.6). Under the rounding convention 

contained in EPA’s regulations, a 

monitored concentration lower than 155 

μg/m3 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. 

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. 

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. 

TABLE 1—PM10 EXCEEDANCES CONTRIBUTING TO VIOLATIONS IN SALT LAKE COUNTY, 2001 THROUGH 2007 

Year Date Monitor and AQS ID No. PM10, (μg/m3) 

Expected 

number of 

exceedances 

Contribution to violations 

2001 .................. March 14, 2001 ..............

April 22, 2001 ................

Magna, 49–035–1001 .............

Magna, 49–035–1001 .............

201 

156 

6.4 Constitutes a violation for 

1999–2001 through 2001– 

2003 data sets. 

2003 .................. February 1, 2003 ...........

April 1, 2003 ..................

North Salt Lake City, 49–035– 

0012.

North Salt Lake City, 49–035– 

0012.

169 

358 

3.1 No violation as of end of 

2003, but contributes to violation with 2004 data; see 

below.9

April 2, 2003 .................. North Salt Lake City, 49–035– 

0012.

209 

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, 49–035– 

0012.

189 1.0 Constitutes a violation 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. 


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9Per 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. 

10Memorandum from Mary D. Nichols, Assistant 

Administrator for Air and Radiation, entitled, 

‘‘Areas Affected by PM10 Natural Events,’’ May 30, 

1996. 

11See 59 FR 42010, August 16, 1994, for a 

discussion of PM10 BACM. 

12Similarly, 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).) 

TABLE 1—PM10 EXCEEDANCES CONTRIBUTING TO VIOLATIONS IN SALT LAKE COUNTY, 2001 THROUGH 2007—Continued 

Year Date Monitor and AQS ID No. PM10, (μg/m3) 

Expected 

number of 

exceedances 

Contribution to violations 

2006 .................. July 4, 2006 ...................

July 26, 2006 .................

North Salt Lake City, 49–035– 

0012.

North Salt Lake City, 49–035– 

0012.

188 

164 

2.2 Constitutes a new violation for 

the 2004–2006 data set. 

2007 .................. July 7, 2007 ...................

July 11, 2007 .................

North Salt Lake City, 49–035– 

0012.

North Salt Lake City, 49–035– 

0012.

174 

156 

4.3 Constitutes a violation for 

2005–2007 through 2007– 

2009 data sets. 

July 13, 2007 ................. North Salt Lake City, 49–035– 

0012.

166 

October 25, 2007 ........... North Salt Lake City, 49–035– 

0012.

172 

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. 

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. 

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). 

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 


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13Between 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. 

14The Lindon monitor recorded an additional 

exceedance of 200 μg/m3 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. 

15Section 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-yearmaintenance requirement. 

16The 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. 

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. 

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 μg/m3) 

and April 19, 2008 (181 μg/m3). 

Additionally, the data show an 

exceedance at the Cottonwood monitor 

(AQS ID49–035–0003) on April 15, 2008 

(177 μg/m3), 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 

μg/m3 on April 15, 2008; 181 μg/m3 on 

April 19, 2008; 155 μg/m3 on April 29, 

2008; and 177 μg/m3 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. 

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 

performance16 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. 

While Utah did compile annual 

baseline and projected inventories of 

major stationary source emissions in its 

Technical Support Document (TSD), 


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17Utah 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. 19Modeling 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. 

20 ‘‘Policy Guidance on the Use of MOBILE6.2 

and the December 2003 AP–42 Method for ReEntrained 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. 

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. 

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. 

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. 

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.] 

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: 

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 nearfield 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 


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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). 

24Hereafter, 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. 

25We 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. 

26Note 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. 

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/. 

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. 

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. 

(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, 


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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 

Continued 

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 reestablishing 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 reestablishing 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 EPAapproved 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 EPAapproved 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, 


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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. 

EPA proposes to disapprove the 

maintenance plan because it includes by 

reference these inappropriate 

exemptions in submitted SIP section 

IX.H. 

(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 


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requirement of section 175A(d) of the 

Act, the Salt Lake County maintenance 

plan does not list as a potential 

contingency measure the reimplementation 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 reimplementation 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. EPAapproved 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, 


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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 crossreferences 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 EPAapproved 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 EPAapproved 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 EPAapproved 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 


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Federal Register / Vol. 74, No. 229 / Tuesday, December 1, 2009 / Proposed Rules 62729 

28We 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. 

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 noburn periods for particulate matter and that we are 

proposing to approve today, would be part of the 

Federally enforceable SIP. 

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

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 EPAapproved 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

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 EPAapproved 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 EPAapproved 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 EPAapproved rule as R307–305–1 through 3, 

but Utah has made revisions to these 

sections. Also, Utah has deleted EPAapproved 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 EPAVerDate Nov<24>2008 17:13 Nov 30, 2009 Jkt 220001 PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 E:\FR\FM\01DEP1.SGM 01DEP1

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62730 Federal Register / Vol. 74, No. 229 / Tuesday, December 1, 2009 / Proposed Rules 

30We 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. 

31EPA approved the PM10 attainment plan on 

July 8, 1994 (59 FR 35036.) 

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 EPAapproved 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. 

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 EPAapproved 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 EPAapproved 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 EPAapproved 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 


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32The 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). 

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. 

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: 

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): 

Year Direct PM10

(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.’’ 


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62732 Federal Register / Vol. 74, No. 229 / Tuesday, December 1, 2009 / Proposed Rules 

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 costeffective 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 preexisting 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 


pwalker on DSK8KYBLC1PROD with NOTICES
Federal Register / Vol. 74, No. 229 / Tuesday, December 1, 2009 / Proposed Rules 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] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 73 

[DA 09–2263; MB Docket No. 09–190; RM– 

11566] 

Radio Broadcasting Services; 

Stonewall, Texas 

AGENCY: Federal Communications 

Commission. 

ACTION: Proposed rule. 

SUMMARY: This document sets forth a 

proposal to amend the FM Table of 

Allotments, Section 73.202(b) of the 

Commission’s rules, 47 C.F.R. Section 

73.202(b). The Commission requests 

comment on a petition filed by 

Katherine Pyeatt proposing the 

allotment of FM Channel 280A as a first 

local service at Stonewall, Texas. 

Channel 280A can be allotted at 

Stonewall in compliance with the 

Commission’s minimum distance 

separation requirements with a site 

restriction of 13.8 km (8.6 miles) 

southwest of Stonewall, at 30–08–45 

North Latitude and 98–45–45 West 

Longitude. See Supplementary 

Information infra. 

DATES: The deadline for filing comments 

is December 31, 2009. Reply comments 

must be filed on or before 15 days 

following the deadline for initial 

comments. 

ADDRESSES: Federal Communications 

Commission, 445 12th Street, SW, 

Washington, DC 20554. In addition to 

filing comments with the FCC interested 

parties should serve petitioner, as 

follows: Katherine Pyeatt, 2215 Cedar 

Springs Road, Suite 1605, Dallas, Texas 

75201. 

FOR FURTHER INFORMATION CONTACT: 

Deborah A. Dupont, Media Bureau, 

(202) 418–7072. 

SUPPLEMENTARY INFORMATION: This is a 

synopsis of the Commission’s Notice of 

Proposed Rule Making, MB Docket 09– 

190, adopted October 21, 2009, and 

released October 23, 2009. The full text 

of this Commission decision is available 

for inspection and copying during 

normal business hours in the FCC 

Reference Information Center (Room 

CY–A257), 445 12th Street, SW., 

Washington, DC. 20554. 

The complete text of this decision 

may also be purchased from the 

Commission’s copy contractor, Best 

Copy and Printing, Inc., 445 12th Street, 

SW, Room CY–B402, Washington, DC 

20554, 800–378–3160 or via the 

company’s website, http:// 

www.bcpiweb.com. 

This document does not contain 

proposed information collection 

requirements subject to the Paperwork 

Reduction Act of 1995, Public Law 104– 

13. In addition, therefore, it does not 

contain any proposed information 

collection burden ’’for small business 

concerns with fewer than 25 

employees,’’ pursuant to the Small 

Business Paperwork Relief Act of 2002, 

Public Law 107–198, see 44 U.S.C. 

3506(c)(4). 

Provisions of the Regulatory 

Flexibility Act of 1980 do not apply to 

this proceeding. 

Members of the public should note 

that from the time a Notice of Proposed 

Rule Making is issued until the matter 

is no longer subject to Commission 

consideration or court review, all ex 

parte contacts are prohibited in 

Commission proceedings, such as this 

one, which involve channel allotments. 

See 47 CFR 1.1204(b) for rules 

governing permissible ex parte contacts. 

For information regarding proper 

filing procedures for comments, see 47 

CFR 1.415 and 1.420. 

List of Subjects in 47 CFR Part 73 

Radio, Radio broadcasting. 

For the reasons discussed in the 

preamble, the Federal Communications 

Commission proposes to amend 47 CFR 

part 73 as follows: 

PART 73 – RADIO BROADCAST 

SERVICES 

1. The authority citation for Part 73 

continues to read as follows: 

Authority: 47 U.S.C. 154, 303, 334, 

336. 

$ 73.202 [Amended] 

2. Section 73.202(b), the Table of FM 

Allotments under Texas, is amended by 

adding Stonewall, Channel 280A. 

Federal Communications 

Commission. 

Federal Communications Commission. 

John A. Karousos, 

Assistant Chief, 

Audio Division, 

Media Bureau. 

[FR Doc. E9–28671 Filed 11–30–09; 8:45 am] 

BILLING CODE 6712–01–S 


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