Air quality implementation plans; approval and promulgation; various States: California,

[Federal Register: August 30, 2005 (Volume 70, Number 167)]

[Proposed Rules]

[Page 51303-51306]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr30au05-19]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA-311-0487; FRL-7962-9]

Revisions to the California State Implementation Plan, San Joaquin Valley Unified Air Pollution Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA is proposing to approve revisions to the San Joaquin Valley Unified Air Pollution Control District portion of the California State Implementation Plan (SIP). These revisions concern particulate matter (PM-10) emissions from fugitive dust sources. We are proposing to approve amendments to local rules that regulate these emission sources under the Clean Air Act as amended in 1990 (CAA or the Act). We are taking comments on this proposal and plan to follow with a final action.

DATES: Any comments must arrive by September 29, 2005.

ADDRESSES: Send comments to Andrew Steckel, Rulemaking Office Chief (AIR-4), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne

http://www.regulations.gov.

You can inspect copies of the submitted SIP revisions, EPA's technical support documents (TSDs), and public comments at our Region IX office during normal business hours by appointment.

You may also see copies of the submitted SIP revisions by appointment at the following locations:

California Air Resources Board, Stationary Source Division, Rule Evaluation Section, 1001 ``I'' Street, Sacramento, CA 95814. San Joaquin Valley Unified Air Pollution Control District, 1990 E. Gettysburg, Fresno, CA 93726

Copies of the rules may also be available via the Internet at http://www.arb.ca.gov/drdb/drdbltxt.htm. Please be advised that this is

not an EPA Web site and may not contain the same version of the rule that was submitted to EPA.

FOR FURTHER INFORMATION CONTACT: Karen Irwin, EPA Region IX, (415) 947- 4116, irwin.karen@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and ``our'' refer to EPA.

Table of Contents

1. The State's Submittal

   1. What rules did the State submit?

   2. Are there other versions of these rules?

   3. What is the purpose of the submitted rule revisions? II. Background to Today's Proposal III. EPA's Evaluation and Action

   1. How is EPA evaluating the rules?

   2. Do the rules meet the evaluation criteria?

   3. EPA recommendations to further improve the rules.

   4. Public comment and final action. IV. Statutory and Executive Order Reviews

1. The State's Submittal

   1. What Rules Did the State Submit?

      Table 1 lists the individual rules addressed by this proposed rule with the dates that they were adopted by the San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) and submitted to EPA by the California Air Resources Board (CARB). The rules that are the subject of this action are collectively referred to as ``Regulation VIII''.

      [[Page 51304]]

      Table 1.--Submitted Rules

      Rule No.

      Rule title

      Adopted Submitted

      8011.......................................... General Requirements.................. 08/19/04 09/23/04 8021.......................................... Construction, Demolition, Excavation, 08/19/04 09/23/04 Extraction, and Other Earthmoving Activities. 8031.......................................... Bulk Materials........................ 08/19/04 09/23/04 8041.......................................... Carryout and Trackout................. 08/19/04 09/23/04 8051.......................................... Open Areas............................ 08/19/04 09/23/04 8061.......................................... Paved and Unpaved Roads............... 08/19/04 09/23/04 8071.......................................... Unpaved Vehicle/Equipment Traffic

      09/16/04 09/23/04 Areas. 8081.......................................... Agricultural Sources.................. 09/16/04 09/23/04

      On March 23, 2005, these rule submittals were found complete by operation of law in accordance with section 110(k)(1) of the Act and 40 CFR part 51, appendix V.

   2. Are There Other Versions of These Rules?

      We approved versions of Rules 8011, 8021, 8031, 8041, 8051, 8061, 8071 and 8081 into the SIP on February 26, 2003. 68 FR 8830. The SIP- approved versions of these rules were adopted by SJVUAPCD on November 15, 2001 and CARB submitted them to us on December 6, 2001.

   3. What Is the Purpose of the Submitted Rule Revisions?

      The submitted revisions are necessary to fulfill Regulation VIII commitments in the SIP-approved 2003 PM-10 Plan for the San Joaquin Valley. The TSD has more information about these rule revisions.

2. Background to Today's Proposal

   On November 15, 1990, amendments to the CAA were enacted. Pub. Law 101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-7671q. On the date of enactment of the 1990 CAA Amendments, PM-10 areas meeting the qualifications of section 107(d)(4)(B) of the Act, including the San Joaquin Valley Air Basin,\1\ were designated nonattainment by operation of law and classified as moderate pursuant to section 188(a). Under section 189(a) of the CAA, moderate PM-10 nonattainment areas must implement by December 10, 1993 Reasonably Available Control Measures (RACM) for PM-10.

   \1\ The San Joaquin Valley Air Basin is under the jurisdiction of the SJVUAPCD.

   On February 8, 1993, EPA reclassified five moderate nonattainment areas, including the San Joaquin Valley Air Basin, to serious nonattainment pursuant to section 188(b)(58 FR 3334). Section 189(b) requires serious nonattainment areas to implement Best Available Control Measures (BACM) by February 8, 1997, four years after reclassification.\2\

   \2\ Because the statutory RACM and BACM implementation deadlines have passed, RACM and BACM must be implemented ``as soon as possible.'' Delaney v. EPA, 898 F.2d 687, 691 (9th Cir. 1990). EPA has interpreted this requirement to be ``as soon as practicable.'' 55 FR 36458, 36505 (September 9, 1990). States are required to develop RACM and BACM that address both the annual and 24-hour PM-10 standards. Ober v. EPA, 84 F.3d 304, 308-311 (9th Cir. 1996).

   In response to section 110(a) and Part D of the Act, local California air pollution control districts adopted and the State of California submitted many PM-10 rules to EPA for incorporation into the California SIP on July 23, 1996, including a series of fugitive dust rules (``Regulation VIII'') adopted by SJVUAPCD.

   On March 8, 2000, EPA took final action on the 1996 version of Regulation VIII, issuing a limited approval and limited disapproval with an effective date of April 7, 2000. 65 FR 12118. EPA noted that it was ``finalizing the limited approval of these rules in order to strengthen the SIP and finalizing the limited disapproval because of the remaining deficiencies.'' Id. at 12119/1.\3\ Among the deficiencies identified by EPA were ``lack of appropriate standards and/or test methods that would ensure a level of control consistent with RACM or BACM * * *.'' Id.

   \3\ The number following the slash (``/'') in this citation refers to the column on the Federal Register page.

   As a result of the disapproval, EPA explained that the emissions offset sanction would apply 18 months after April 7, 2000, and the highway funding sanction six months later, unless the Air District cured the deficiencies. Id. at 12118/2-3. In addition, EPA explained that it would be required to promulgate a Federal Implementation Plan (FIP) if those deficiencies were not corrected within 24 months.

   SJVUAPCD adopted revised Regulation VIII rules on November 15, 2001, which CARB submitted to EPA on December 6, 2001. SJVUAPCD intended that the new rules would both remedy the RACM deficiencies identified by EPA in its March 8, 2000 action, and fulfill BACM requirements under the CAA. EPA found that new provisions in Regulation VIII ``significantly strengthened'' the rules by tightening standards, covering more activities, and adding more requirements to control dust- producing activities. 67 FR 15346-47 (4/1/02).

   On February 26, 2003, EPA issued a final rulemaking (Final Rule) (68 FR 8830) that conditionally approved the November 15, 2001 version of Regulation VIII with respect to RACM and issued a limited approval and limited disapproval of Regulation VIII with respect to BACM. Thus, the November 15, 2001 version of Regulation VIII was added to the SIP, yet a sanctions clock for the BACM deficiency began with the effective date of the Final Rule, March 28, 2003. Id. at 8833/3. We found that the submittal did not adequately fulfill the CAA section 189(b) requirement for a BACM demonstration, specifically identifying thresholds of source coverage within the rules (e.g., minimum size of sources subject to rule requirements) for which an adequate BACM demonstration was outstanding.

   On August 19, 2003, CARB submitted the ``2003 PM10 Plan, San Joaquin Valley Plan to Attain Federal Standards for Particulate Matter 10 Microns and Smaller''. CARB submitted Amendments to this plan on December 30, 2003.\4\ Among other demonstrations, the Plan included a demonstration that RACM and BACM will be expeditiously implemented for all significant sources of PM-10. The Plan's RACM and BACM demonstration included fugitive dust sources subject to Regulation VIII and contained several specific commitments to upgrade Regulation VIII to a BACM level of control by September 2004. On

   [[Page 51305]]

   May 26, 2004, EPA approved the SJV 2003 PM-10 Plan, including the RACM and BACM demonstration for Regulation VIII sources, as meeting the requirements of CAA sections 189(a)(1)(C) and 189(b)(1)(B).\5\ 69 FR 30006. Approval of this demonstration terminated all Regulation VIII sanction, FIP, and rule disapproval implications of our February 26, 2003 action. Id. at 30035/1.

   \4\ The Amendments to the 2003 PM-10 Plan supersede some portions of the 2003 PM-10 Plan and also add to it. References hereafter to the ``SJV 2003 PM-10 Plan'' or ``the Plan'' mean the 2003 Plan submitted on August 19, 2003, as amended by the December 30, 2003 submittal.

   \5\ As we explained in our proposed approval of the Plan, CAA section 189(a)(1)(C) requires implementation of RACM for moderate PM-10 nonattainment areas and that a serious area PM-10 plan must also provide for the implementation of RACM to the extent that the RACM requirement has not been satisfied in the area's moderate area plan as was the case here. We further explained that we do not normally conduct a separate evaluation to determine if a serious area plan's measures meet the RACM as well as BACM requirements as interpreted by us in the General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990, 57 FR 13498, 13540 (April 16, 1992) (General Preamble). This is because in our serious area guidance--Addendum to the General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990, 59 FR 41998, 42010 (August 16, 1994) (Addendum)--we interpret the BACM requirement as generally subsuming the RACM requirement (i.e., if we determine that the measures are indeed the ``best available,'' we have necessarily concluded that they are ``reasonably available''). 69 FR at 5417/footnote 11. Accordingly, in our evaluation and proposed approval of Regulation VIII below, references to BACM are intended to include RACM.

3. EPA's Evaluation and Action

   1. How Is EPA Evaluating the Rules?

      Generally, SIP rules must be enforceable (see section 110(a) of the Act) and must not relax existing requirements (see sections 110(l) and 193). These rules have been evaluated for enforceability pursuant to the ``Guidance Document for Correcting Common VOC & Other Rule Deficiencies,'' EPA Region 9, August 21, 2001 (the Little Bluebook).

      We have also reviewed the submitted rules to determine whether the BACM commitments in the SJV 2003 PM-10 Plan have been adopted into Regulation VIII for purposes of fulfilling the SIP-approved Plan commitments.\6\ Since we have already approved the Plan's BACM demonstration for Regulation VIII sources, we are only evaluating these rules under CAA section 189(b) to the extent that requirements adopted in August and September, 2004, differ from the BACM commitments contained in the Plan. EPA's RACM guidance can be found in the General Preamble. EPA's BACM guidance can be found in the Addendum.

      \6\ EPA's determination that the Plan satisfies CAA section 189(b) requirements for BACM was, in part, based upon SJVUAPCD's commitments to adopt specific requirements for fugitive dust sources subject to Regulation VIII.

   2. Do the Rules Meet the Evaluation Criteria?

      We believe these rules are consistent with the relevant policy and guidance regarding enforceability and SIP relaxations. In comparing the relevant rule requirements to the SJV 2003 PM-10 Plan's Regulation VIII BACM commitments, we found only minor differences for which reasoned justification exists. Therefore, we believe that these rules fulfill the Plan's Regulation VIII BACM commitments and that minor modifications SJVUAPCD adopted into Regulation VIII requirements also satisfy BACM. The TSD has more information on our evaluation.

   3. EPA Recommendations To Further Improve the Rules

      The TSD describes additional rule revisions that do not affect EPA's current action but are recommended for the next time the local agency modifies the rules.

   4. Public Comment and Final Action

      Because EPA believes the submitted rules fulfill all relevant requirements as discussed above, we are proposing to fully approve them under CAA section 110(k)(3) as meeting CAA sections 189(a)(1)(C) and (b)(1)(B). We will accept comments from the public on this proposal for the next 30 days. With respect to CAA sections 189(a) and 189(b), we are only evaluating comments to the extent that newly adopted requirements in Regulation VIII differ from the RACM/BACM commitments contained in the PM-10 Plan that EPA has already approved. Unless we receive convincing new information during the comment period, we intend to publish a final approval action that will incorporate these rules into the federally enforceable SIP.

4. Statutory and Executive Order Reviews

   Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a ``significant regulatory action'' and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, ``Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This proposed action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre- existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

   This proposed rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, 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, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does 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 (64 FR 43255, August 10, 1999). This action merely proposes to approve 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. This proposed rule also is not subject to Executive Order 13045 ``Protection of Children from Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), because it is not economically significant.

   In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

   [[Page 51306]]

   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: August 5, 2005. Keith Takata, Acting Regional Administrator, Region IX.

   [FR Doc. 05-17196 Filed 8-29-05; 8:45 am]

   BILLING CODE 6560-50-P