Approval and Promulgation of Air Quality Implementation Plans; Utah; Road Salting and Sanding, Control of Installations, Revisions to Salting and Sanding Requirements and Deletion of Non-Ferrous Smelter Orders, Incorporation by Reference, and Nonsubstantive Changes

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[UT-001-0016a; FRL-6482-9]

Approval and Promulgation of Air Quality Implementation Plans;

Utah; Road Salting and Sanding, Control of Installations, Revisions to

Salting and Sanding Requirements and Deletion of Non-Ferrous Smelter

Orders, Incorporation by Reference, and Nonsubstantive Changes

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: On February 1, 1995, the Governor of the State of Utah

submitted State Implementation Plan (SIP) revisions for the purpose of

establishing new requirements for road sanding and salting in section

9.A.6.7 (referred to by the State as section IX.A.6.g in a renumbering

revision that has yet to be approved by EPA) of the SIP and in UACR

R307-1-3, updating the incorporation by reference in R307-2-1, deleting

obsolete measures for nonferrous smelters in R307-1-3, and

nonsubstantive changes to R307-1-1 and R307-1-3. This action is being

taken under section 110 of the Clean Air Act (Act).

DATES: This rule is effective on February 4, 2000 without further

notice, unless EPA receives adverse comment by January 5, 2000. If

adverse comment is received, EPA will publish a timely withdrawal of

the direct final rule in the Federal Register informing the public that

the rule will not take effect.

ADDRESSES: Written comments may be mailed to Richard R. Long, Director,

Air and Radiation Program, Mailcode 8P-AR, Environmental Protection

Agency (EPA), Region VIII, 999 18th Street, Suite 500, Denver,

Colorado, 80202. Copies of the documents relevant to this action are

available for public inspection during normal business hours at the Air

and Radiation Program, Environmental Protection Agency, Region VIII,

999 18th Street, Suite 500, Denver, Colorado, 80202 and copies of the

Incorporation by Reference material are available at the Air and

Radiation Docket and Information Center, Environmental Protection

Agency, 401 M Street, SW, Washington, DC 20460. Copies of the state

documents relevant to this action are available for public inspection

at the Utah Department of Environmental Quality, Division of Air

Quality, 150 North 1950 West, Salt Lake City, Utah 84114-4820.

FOR FURTHER INFORMATION CONTACT: Cindy Rosenberg, EPA, Region VIII,

(303) 312-6436.

SUPPLEMENTARY INFORMATION: Throughout this document, wherever ``we,''

``us,'' or ``our'' are used, we mean the Environmental Protection

Agency (EPA).

Table of Contents

I. EPA's Final Action

What Action is EPA Taking in this Direct Final Rule?

II. Summary of SIP Revision

A. What Revisions Were Made to the SIP?

B. Did Utah Follow the Proper Procedures for Adopting these

Revisions?

III. Background

What Problems Does Today's Rule Address?

IV. Administrative Requirements

I. EPA's Final Action

What Action is EPA Taking in this Direct Final Rule?

We are approving the Governor's submittal of February 1, 1995, that

establishes new requirements for road salting and sanding in section

9.A.6.7 (referred to by the State as section IX.A.6.g) of the SIP and

in UACR R307-1-3. Concurrently, the State's ``Incorporation by

Reference'' was changed in UACR R307-2-1. This same submittal also

deletes obsolete rules for nonferrous smelter orders in UACR R307-1-3,

and makes nonsubstantive changes to R307-1-1 and R307-1-3.

We are publishing this rule without prior proposal because we view

this as a noncontroversial amendment and anticipate no adverse

comments. However, in the ``Proposed Rules'' section of today's Federal

Register publication, we are publishing a separate document that will

serve as the proposal to approve the SIP revision should adverse

comments be filed. This rule will be effective February 4, 2000 without

further notice unless the Agency receives adverse comments by January

5, 2000. If we receive adverse comments, we will publish a timely

withdrawal in the Federal Register informing the public that the rule

will not take effect. We will address all public comments in a

subsequent final rule based on the proposed rule. We will not institute

a second comment period on this action. Any parties interested in

commenting must do so at this time.

II. Summary of SIP Revision

A. What Revisions Were Made to the SIP?

This revision made changes to the road salting and sanding

requirements in section 9.A.6.7 (referred to by the State as section

IX.A.6.g) of the SIP and in UACR R307-1-3. This regulatory revision

achieves the 20% emission reduction relied upon in the SIP's attainment

demonstration. The State revised the SIP and UACR R307-1-3.2.7 to

establish the use of salt that is at least 92% sodium chloride as

Reasonably Available Control Technology (RACT) for road anti-skid

treatment. Entities applying a material other than this are required to

either demonstrate that the material generates no more emissions than

salt which is at least 92% sodium chloride, or to sweep the affected

roadways using vacuum street sweeper technology within three days of

the end of the storm for which the material was applied. Recordkeeping

requirements were also imposed. Concurrent with this action, the

State's incorporation by reference under R307-2-1 was updated to change

the recently amended date of the SIP from December 18, 1992 to December

9, 1993.

In addition to the changes to road salting and sanding, UACR R307-

1-3.10, ``Non-Ferrous Smelter Orders,'' was deleted due to its being

obsolete because the nonferrous smelter orders expired on January 1,

1988.

After the revised rules were adopted, the State identified a number

of typographical errors in the printed version of the road salting and

sanding rules in ``Control of Installations.'' This

[[Page 68032]]

was corrected through a nonsubstantive change revision (DAR filing

#15820) in R307-1-3.2.7. The State also made a definition change to the

definition for PM10 precursor at this time. This was

corrected through a nonsubstantive change revision (DAR filing #15819)

in UACR R307-1-1. The revisions were included in the submittal to EPA

on February 1, 1995 as well.

B. Did Utah Follow the Proper Procedures for Adopting These Revisions?

The Clean Air Act (Act) requires States to observe certain

procedural requirements in developing SIP revisions for submittal to

us. Section 110(a)(2) of the Act provides that each SIP revision be

adopted after going through a reasonable notice and public hearing

process prior to being submitted by a State.

Copies of the proposed changes were made available to the public

and the State held public hearings for the changes to R307-2-1

``Incorporation by Reference'' and SIP section 9.A.6.7, ``Road Salting

and Sanding'' (DAR filing #14834) as well as for the changes to R307-1-

3 ``Control of Installations'' for the road salting and sanding changes

and the deletion of ``Non-Ferrous Smelter Orders'' (DAR filing #14833)

on October 5, 1993, October 6, 1993, October 7, 1993 and October 13,

1993. The State made changes in response to public comments and the

rule revisions to R307-2-1 and SIP section 9.A.6.7 were adopted by the

Air Quality Board on January 3, 1994 and became effective on January

31, 1994; the revisions to R307-1-3 were adopted by the Air Quality

Board on November 5, 1993 and became effective on January 3, 1994. The

nonsubstantive changes which were made to R307-1-1, ``Foreword and

Definitions'' and R307-1-3 ``Control of Installations'' (DAR filing

#15819 and #15820) were effective on June 1, 1994. These revisions were

formally submitted by the Governor on February 1, 1995. This submission

was found to be administratively and technically complete in a letter

to the Governor dated July 27, 1995.

III. Background

What Problems Does Today's Rule Address?

On February 1, 1995, the Governor submitted revisions to the road

salting and sanding provisions in the SIP and the State rules, along

with a deletion of the Non-Ferrous Smelter Orders, and an updated

incorporation by reference and other nonsubstantive changes. This

submission was found to be administratively and technically complete in

a letter to the Governor dated July 27, 1995.

Road salt and sand are minor emission sources in Salt Lake and Utah

Counties, with design day impacts ranging from 0% to 3.2% for salt and

0% to 7.5% for sand and other road dust. The original SIP (approved in

1994) required all agencies applying salt, sand or other anti-skid

materials to roadways in the nonattainment areas to submit a plan to

the State documenting the methods and schedule that would be used to

achieve a 25% reduction in roadway surface loading of these materials,

which was in turn anticipated to provide a 20% reduction in ambient

contributions from this source category.

In addition, the State committed to complete a study to gather more

information on this source category in order to confirm the expected

20% reduction. This study was completed in 1992. It demonstrated that

road salting was not a contributor to PM10 in the

nonattainment areas. The roadways sampled during the study were found

to be cleaner after storm events than prior to the events, leading the

State to the conclusion that road salting did not contribute

PM10 emissions to the nonattainment area. As a result of

this finding, the State revised the SIP and R307-1-3.2.7 to establish

evaporative salt (the type used during the study) as Reasonably

Available Control Technology for road anti-skid treatment. Entities

applying a material other than at least 92% sodium chloride salt are

required to either demonstrate that the material generates no more

emissions than this salt, or to sweep the affected roadways using

vacuum street sweeper technology within three days of the end of the

storm for which the material was applied. Recordkeeping requirements

were also imposed.

This regulatory revision achieves the 20% emission reduction relied

upon in the SIP's attainment demonstration. As noted above, salt that

is at least 92% sodium chloride (used by the majority of road

maintenance agencies in the nonattainment areas) was found to have no

impact on PM10 concentrations. Vacuum sweeper technology has

been found through a number of EPA and non-EPA studies to reduce

PM10 emissions from roadways by approximately 34%, exceeding

the 20% emission reduction target in the SIP.

In addition to the changes to road sanding and salting, UACR R307-

1-3.10, ``Non-Ferrous Smelter Orders,'' allowing nonferrous smelters to

postpone compliance, was deleted due to this provision being obsolete.

Pursuant to CAA section 119, nonferrous smelters could postpone their

compliance with the statutes, but compliance could not be postponed

beyond January 1, 1988.

After the revised rules were adopted, the State identified a number

of typographical errors in the printed version of the rules. The State

also made a minor change to the definition for PM10

precursor at this time. These were corrected through nonsubstantive

change revisions (DAR filing #15820 and #15819). This revision was

submitted to EPA on February 1, 1995 as well.

IV. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from Executive Order (E.O.) 12866, entitled

``Regulatory Planning and Review.''

B. Executive Order 13132

Federalism (64 FR 43255, August 10, 1999) revokes and replaces

Executive Orders 12612 (Federalism) and 12875 (Enhancing the

Intergovernmental Partnership). Executive Order 13132 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.'' Under Executive Order 13132, EPA may not issue a

regulation that has federalism implications, that imposes substantial

direct compliance costs, and that is not required by statute, unless

the Federal government provides the funds necessary to pay the direct

compliance costs incurred by State and local governments, or EPA

consults with State and local officials early in the process of

developing the proposed regulation. EPA also may not issue a regulation

that has federalism implications and that preempts State law unless the

Agency consults with State and local officials early in the process of

developing the proposed regulation.

This final rule 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

[[Page 68033]]

levels of government, as specified in Executive Order 13132 (64 FR

43255, August 10, 1999), because it merely approves a state rule

implementing a federal standard, and does not alter the relationship or

the distribution of power and responsibilities established in the Clean

Air Act. Thus, the requirements of section 6 of the Executive Order do

not apply to this rule.

C. Executive Order 13045

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 E.O.

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 explain why the planned regulation is preferable to other

potentially effective and reasonably feasible alternatives considered

by the Agency.

This rule is not subject to E.O. 13045 because it does not involve

decisions intended to mitigate environmental health or safety risks.

D. Executive Order 13084

Under E.O. 13084, EPA may not issue a regulation that is not

required by statute, that significantly affects or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments. If the mandate is unfunded,

EPA must provide to the Office of Management and Budget, in a

separately identified section of the preamble to the rule, a

description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

of their concerns, and a statement supporting the need to issue the

regulation.

In addition, E.O. 13084 requires EPA to develop an effective

process permitting elected and other representatives of Indian tribal

governments ``to provide meaningful and timely input in the development

of regulatory policies on matters that significantly or uniquely affect

their communities.'' Today's rule does not significantly or uniquely

affect the communities of Indian tribal governments. Accordingly, the

requirements of section 3(b) of E.O. 13084 do not apply to this rule.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements 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 not-for-profit enterprises, and small governmental

jurisdictions.

This final rule will not have a significant impact on a substantial

number of small entities because SIP approvals under section 110 and

subchapter I, part D of the Clean Air Act do not create any new

requirements but simply approve requirements that the State is already

imposing. Therefore, because the Federal SIP approval 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).

F. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

annual costs to State, local, or tribal governments in the aggregate;

or to private sector, of $100 million or more. Under section 205, EPA

must select the most cost-effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not

include a Federal mandate that may result in estimated annual costs of

$100 million or more to either State, local, or tribal governments in

the aggregate, or to the private sector. This Federal action approves

pre-existing requirements under State or local law, and imposes no new

requirements. Accordingly, no additional costs to State, local, or

tribal governments, or to the private sector, result from this action.

G. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the

Small Business Regulatory Enforcement Fairness Act of 1996, generally

provides that before a rule may take effect, the agency promulgating

the rule must submit a rule report, which includes a copy of the rule,

to each House of the Congress and to the Comptroller General of the

United States. EPA will submit a report containing this rule and other

required information to the U.S. Senate, the U.S. House of

Representatives, and the Comptroller General of the United States prior

to publication of the rule in the Federal Register. A major rule cannot

take effect until 60 days after it is published in the Federal

Register. This rule is not a ``major'' rule as defined by 5 U.S.C.

804(2).

H. National Technology Transfer and Advancement Act

Section 12 of the National Technology Transfer and Advancement Act

(NTTAA) of 1995 requires Federal agencies to evaluate existing

technical standards when developing a new regulation. To comply with

NTTAA, EPA must consider and use ``voluntary consensus standards''

(VCS) if available and applicable when developing programs and policies

unless doing so would be inconsistent with applicable law or otherwise

impractical.

The EPA believes that VCS are inapplicable to this action. Today's

action does not require the public to perform activities conducive to

the use of VCS.

I. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action must be filed in the United States Court

of Appeals for the appropriate circuit by February 4, 2000. Filing a

petition for reconsideration by the Administrator of this final rule

does not affect the finality of this rule for the purposes of judicial

review nor does it extend the time within which a petition for judicial

review may be filed, and shall not postpone the effectiveness of such

rule or action. This action may not be challenged later in proceedings

to enforce its requirements. (See section 307(b)(2).)

[[Page 68034]]

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by

reference, Intergovernmental relations, Particulate matter, Reporting

and recordkeeping requirements.

Dated: November 9, 1999.

Jack W. McGraw,

Acting Regional Administrator, Region VIII.

40 CFR part 52, subpart TT of chapter I, title 40 is amended as

follows:

PART 52--[AMENDED]

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

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

Subpart TT--Utah

2. Section 52.2320 is amended by adding paragraph (c)(43) to read

as follows:

Sec. 52.2320 Identification of plan.

* * * * *

(c) * * *

(43) On February 1, 1995 the Governor of Utah submitted revisions

to the Utah SIP to revise the provisions for road salting and sanding

in Section 9, part A of the SIP and in UACR R307-1-3, updating the

incorporation by reference in R307-2-1, deleting obsolete measures for

nonferrous smelters in R307-1-3, and making nonsubstantive changes to

UACR R307-1-1 and R307-1-3.

(i) Incorporation by reference.

(A) UACR R307-1-3, a portion of ``Control of Installations,''

revisions to road salting and sanding requirements and deletion of non

ferrous smelter orders, as adopted by Utah Air Quality Board on

November 5, 1993, effective on January 3, 1994.

(B) UACR R307-2-1, ``Incorporation by Reference,'' revised date for

incorporation by reference of the State Implementation Plan, as adopted

by Utah Air Quality Board on January 31, 1994.

(C) UACR R307-1-1, ``Foreword and Definitions,'' nonsubstantive

change made to definition of ``PM10 precursor,'' effective

on June 1, 1994.

(D) UACR R307-1-3, ``Control of Installations,'' nonsubstantive

changes to road salting and sanding, effective on June 1, 1994.

(ii) Additional Material.

(A) February 22, 1999 letter from Ursula Trueman, Director, Utah

Division of Air Quality, to Richard Long, Director, EPA Region VIII Air

and Radiation Program, transmitting nonsubstantive change correction to

R307-2-1, ``Incorporation by Reference,'' that was left out of the

February 1, 1995 SIP submittal.

(B) March 16, 1999 letter from Larry Svoboda, Unit Leader, EPA

Region VIII Air and Radiation Program, to Ursula Trueman, Director,

Utah Division of Air Quality, explaining EPA's interpretation of

nonsubstantive revision to definition of ``PM10 precursor.''

(C) April 28, 1999 letter from Richard Sprott, Planning Branch

Manager, Utah Division of Air Quality, to Larry Svoboda, Unit Leader,

EPA Region VIII Air and Radiation Program, providing explanation for

and background to the ``PM10 precursor'' definition.

(D) August 26, 1999 fax from Jan Miller, Utah Division of Air

Quality, to Cindy Rosenberg, EPA Region VIII Air and Radiation Program,

transmitting documentation for effective date of the ``PM10

precursor'' definition.

[FR Doc. 99-31533 Filed 12-3-99; 8:45 am]

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