No. 28220: R307-309. Nonattainment and Maintenance Areas for PM10: Fugitive Emissions and Fugitive Dust

DAR File No.: 28220
Filed: 09/07/2005, 03:30
Received by: NL

 

NOTICE OF REVIEW AND STATEMENT OF CONTINUATION

Concise explanation of the particular statutory provisions under which the rule is enacted and how these provisions authorize or require the rule:

Rule R307-309 regulates the amount of dust and fugitive emissions that are allowed to leave the site of any source of air pollution. These regulations are part of the state implementation plan to control PM10 in geographic areas where levels of pollution have exceeded federal health standards in the past; the plan is incorporated by reference under Section R307-110-10. The plan is required under the Clean Air Act, 42 U.S.C. 7410. Subsection 19-2-104(1) authorizes the Air Quality Board to make rules "(a) regarding the control, abatement, and prevention of air pollution from all sources and the establishment of the maximum quantity of air contamination that may be emitted by any air contaminant source"; and "b) establishing air quality standards." Subsection 19-2-104(3)(q) authorizes the Board to make rules to "meet the requirements of federal air pollution laws."

 

Summary of written comments received during and since the last five-year review of the rule from interested persons supporting or opposing the rule:

Rule R307-309 was last reviewed on June 8, 2004. Rule R307-309 has been revised once since the last review: DAR No. 27765, published April 1, 2005, and effective on September 2, 2005. The Division of Air Quality (DAQ) received six written comments since the last review. COMMENT 1: Kennecott Utah Copper Company (KUCC) has an objection concerning this use of a modified form of Method 9. In summary, any modified form of Method 9 used as an enforcement standard for intermittent or mobile sources, as opposed to a trigger for further action, is not a verifiable method, is not an approved method, and imposes a standard more restrictive than corresponding federal regulations and, according to Section 19-2-106, cannot be maintained without a written finding after public comment and hearing and based on evidence in the record, that corresponding federal regulations are not adequate to protect public health and the environment of the state. For the reasons given regarding opacity observations for intermittent and mobile sources, the following items should be deleted: the second sentence of proposed Subsection R307-201-3(9), the second sentence of Subsection R307-206-5(1), the second sentence of proposed Subsection R307-306-5(1), the third sentence of Section R307-309-4, and the second sentence of proposed Subsection R307-309-5(3). RESPONSE 1: The provision of Rule R307-201 governing the method to enforce opacity observers for mobile and intermittent sources has been in effect for over 25 years. DAQ added this provision to the other rules to clarify that this provision of Rule R307-201 would continue to apply, because DAQ separated its rules into two categories, State only rules and rules that will apply in only nonattainment and maintenance areas. DAQ staff recommends not deleting these provisions from the rules. DAQ's compliance staff have indicated that these provisions are needed. It is necessary to have a method to enforce opacity limits for mobile and intermittent sources and EPA Method 9 is not intended to measure opacity limits for mobile and intermittent sources. Section 19-2-106 restricts DAQ from developing a standard more restrictive than the corresponding federal regulation; however, there is no corresponding federal regulation for measuring opacity emissions limits for mobile and intermittent sources. Therefore, DAQ developed a method to measure compliance of opacity emission limits for mobile and intermittent sources consistent with EPA Method 9. COMMENT 2: Section R307-309-3: This provision exempts sources from meeting opacity limits when a specific wind speed is exceeded. EPA is concerned that this exemption does not have any relationship to or consideration of meeting NAAQS and grants inappropriate director discretion. DAQ modified the wind speed from 25 mph to 30 mph, to match the Nation Events Policy (NEP). However, EPA does not believe that the NEP addresses a specific wind speed for high wind events. EPA is concerned that high-wind exemptions are problematic. RESPONSE 2: Originally DAQ recommended modifying the wind speed from 25 mph to 30 mph, to match the Utah Nature Events Action Plan (NEAP). The NEAP helps to diagnose when an event is natural and not a manmade exceedence of the NAAQS. However, the Board decided to keep the wind speed at 25 mph. COMMENT 3: EPA is concerned with Rule R307-309 directing sources to "minimize" fugitive dust, because this requirement is not practical to enforce. RESPONSE 3: The requirement to minimize fugitive dust is enforceable. First, all sources of fugitive dust are subject to a numeric opacity limit. This opacity limit provides an enforcement baseline. In addition, any person owning or operating a source of fugitive dust must submit a fugitive dust plan to the executive secretary. A fugitive dust plan requires the owner and operator of a source to minimize fugitive dust to the maximum extent possible. Because these fugitive dust plans are source specific, it would be illegal to list them in Rule R307-309 (Utah Code Subsection 63-46a-3(2)(c)). Finally, the Utah Court of Appeals upheld an enforcement action that cited a trucking company for failing to minimizing fugitive dust. The following is citation from that case: "Second, petitioner argues that "[t]he Utah Air Quality Board abused its discretion in upholding a citation for fugitive dust based on a single, inadequate reading." Petitioner maintains that because the DAQ environmental scientists failed to take six opacity readings for the Ralph Smith truck, they failed to comply with the DAQ rules. However, as respondent points out, petitioner was cited for failing to minimize fugitive dust under Rule 307-12-3 (3.b) (1) (Rule R307-12 is now Section R203-7-309) of the Utah Administrative Code, not for violating the opacity standards for fugitive emissions under Section 307-12-2 of the Utah Administrative Code. Because opacity readings are not required under Subsection 307-12-3(3.b)(1), that evidence was relevant only to support the DAQ's claim that petitioner failed to minimize fugitive dust. Accordingly, this argument fails. (Ralph Smith Company, Inc. v. Utah Air Quality Board, 990840-CA P.2 (Utah Ct. App. 2000))" COMMENT 4: DAQ deleted sections R307-309-5 and R307-309-6: "Storage, Hauling and Handling of Aggregate Materials and Construction and Demolition Activities." EPA asked DAQ to demonstrate that deletion of these provisions will not interfere with Clean Air Act (CAA) requirements. RESPONSE 4: DAQ did not intend to delete these standards. DAQ will restore them so the rule will read as follows: "R307-309-7. Storage, Hauling and Handling of Aggregate Materials Any person owning, operating or maintaining a new or existing material storage, handling or hauling operation shall prevent, to the maximum extent possible, material from being deposited onto any paved road other than a designated deposit site. Any such person who deposits materials that may create fugitive dust on a public or private paved road shall clean the road promptly." "R307-309-8. Construction and Demolition Activities. Any person engaging in clearing or leveling of land with an area of one-quarter acre or more, earthmoving, excavating, construction, demolition, or moving trucks or construction equipment over cleared land or access haul roads shall prevent, to the maximum extent possible, material from being deposited onto any paved road other than a designated deposit site. Any such person who deposits materials that may create fugitive dust on a public or private paved road shall clean the road promptly." COMMENT 5: EPA has asked DAQ to demonstrate that deleting Subsections R307-309-7(2)(a) and R307-309-7(2)(b) "Unpaved roads" and R307-309-3(3) "Definition of road" will not interfere with CAA requirements. RESPONSE 5: DAQ moved the definition of Road to the general definitions in Section R307-101-2 rather than repeating the definition in multiple rules. DAQ removed provisions in Section R307-309-7 that require control measures for unpaved roads based on the number of vehicle trips per day. These requirements were established as part of the Total Suspended Particulate (TSP) plan in 1982. This rule has been in place for a long time, and discussions with DAQ staff indicate that the application of the rule focused on industrial roads such as haul roads. In addition, the area that was regulated was much smaller. The nonattainment area for TSP was based on the actual area of nonattainment rather than the county boundary, and this actual area of nonattainment corresponded to the urban area along the Wasatch Front. When the nonattainment area for PM10 was designated, the entire county became nonattainment, and this rule technically applied in the rural areas of the nonattainment counties. However, with the shift to PM10, it became apparent that wintertime temperature inversions were the real problem in Utah, and unpaved roads are not a significant contributor to PM10 during inversions. DAQ's research with the local MPOs has indicated that currently there are few unpaved roads in the populated areas of the nonattainment areas of Utah (the "actual area of nonattainment" for TSP). In addition, industrial source within the nonattainment areas with unpaved roads such as haul roads are subject to permitting and best available control technology (BACT) requirements, as well as the fugitive dust plan requirements in this rule. Deleting this provision will have no effect on air quality regulation in Utah because the original intent and application of this rule has been taken over by the approval order process, or has been made moot because of the increasing urbanization along the Wasatch Front (there are very few unpaved roads remaining in the urban area). COMMENT 6: Any fugitive dust control plan that includes a limit on activities based on wind speed being below a threshold (blasting, for example) should require the measurement and recording of wind speed by a hand-held anemometer or equivalent device. Sources should be required to document compliance with wind speed conditions when such a condition is included in a rule, an approval order, or a fugitive dust control plan. RESPONSE 6: DAQ's focus is on ensuring that any source diligently carries out the components of its dust control plan in all circumstances, including during high wind events. A source that is not carrying out activities to minimize fugitive dust will be cited for that failure, whatever the wind speed may be.

 

Reasoned justification for continuation of the rule, including reasons why the agency disagrees with comments in opposition to the rule, if any:

Rule R307-309 protects the public health by reducing emissions from industries, gravel pits, constructions sites, haul trucks, mines, and tailings ponds. In addition, Rule R307-309 is required under the state implementation plan for PM10, incorporated by reference under Section R307-110-10. The plan is required under the Clean Air Act, Section 110; without the state plan, the EPA is required to put in place its own plan. Therefore, this rule should be continued.

 

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Environmental Quality
Air Quality
150 N 1950 W
SALT LAKE CITY UT 84116-3085

 

Direct questions regarding this rule to:

Mat E. Carlile at the above address, by phone at 801-536-4136, by FAX at 801-536-0085, or by Internet E-mail at [e-mail]

 

Authorized by:

M. Cheryl Heying, Planning Branch Manager