[Federal Register Volume 64, Number 233 (Monday, December 6, 1999)]
[Rules and Regulations]
[Pages 68031-68034]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-31533]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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]
BILLING CODE 6560-50-P
