[Federal Register Volume 63, Number 236 (Wednesday, December 9, 1998)]
[Rules and Regulations]
[Pages 67784-67787]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32563]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA-198-0058; FRL-6195-7]


Approval and Promulgation of Implementation Plans; California 
State Implementation Plan Revision; South Coast Air Quality Management 
District, San Diego County Air Pollution Control District, and Kern 
County Air Pollution Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is approving revisions to the California State 
Implementation Plan (SIP) which primarily concern the control of 
particulate matter (PM) emissions. The intended effect of these SIP 
revisions is principally to regulate PM emissions in accordance with 
the requirements of the Clean Air Act, as amended in 1990 (CAA or the 
Act). EPA's final approval of these revisions incorporates them into 
the federally

[[Page 67785]]

approved SIP for the South Coast Air Quality Management District 
(SCAQMD), San Diego County Air Pollution Control District (SDCAPCD), 
and the Kern County Air Pollution Control District (KCAPCD). EPA has 
evaluated each of the revisions and is approving them under provisions 
of the CAA regarding EPA action on SIP submittals, SIPs for national 
primary and secondary ambient air quality standards, and plan 
requirements for nonattainment areas. EPA is granting simultaneous 
limited approval and limited disapproval of SCAQMD Rule 403 because, 
while it strengthens the SIP, it also does not fully meet the CAA 
provisions regarding plan submissions and requirements for 
nonattainment areas.

EFFECTIVE DATE: This approval is effective on January 8, 1999.

ADDRESSES: Copies of the rule revisions and EPA's evaluation report of 
the rules are available for public inspection at EPA's Region 9 office 
during normal business hours. Copies of the submitted rule revisions 
are also available for inspection at the following locations:

California Air Resources Board, Stationary Source Division, Rule 
Evaluation Section, 2020 ``L'' Street, Sacramento, CA
South Coast Air Quality Management District, 21865 E. Copley Drive, 
Diamond Bar, CA
San Diego County Air Pollution Control District, 9150 Chesapeake Drive, 
San Diego, CA
Kern County Air Pollution Control District, 2700 ``M'' Street, Suite 
302, Bakersfield, CA

FOR FURTHER INFORMATION CONTACT: Dave Jesson, Air Planning Office (AIR-
2), Air Division, U.S. Environmental Protection Agency, Region IX, 75 
Hawthorne Street, San Francisco, CA 94105-3901, (415) 744-1288.

SUPPLEMENTARY INFORMATION:

I. Background

A. SIP Revisions

    EPA is finalizing approval of the following rules into the 
California SIP: SCAQMD Rule 403, Fugitive Dust (as amended on February 
14, 1997); SCAQMD Rule 403.1, Wind Entrainment of Fugitive Dust 
(adopted on January 15, 1993); SCAQMD Rule 1186, PM10 
Emissions from Paved and Unpaved Roads, and Livestock Operations 
(adopted on February 14, 1997); San Diego Rule 52, Particulate Matter 
(as amended on January 22, 1997); San Diego Rule 53, Specific Air 
Contaminants (as amended on January 22, 1997); San Diego Rule 54, Dust 
and Fumes (as amended on January 22, 1997); and KCAPCD Rule 405, 
Particulate Matter--Emission Rate (as amended on May 1, 1997). These 
new and amended rules were submitted to EPA as SIP revisions by the 
California Air Resources Board (CARB) on August 1, 1997, with the 
exception of SCAQMD Rule 403.1, which was submitted on November 18, 
1993.
    EPA is also approving into the California SIP the following local 
ordinances for the control of fugitive dust in the Coachella Valley 
Planning Area: City of Cathedral City Ordinance No. 377 (2/18/93), City 
of Coachella Ordinance No. 715 (10/6/93), City of Desert Hot Springs 
Ordinance No. 93-2 (5/18/93), City of Indian Wells Ordinance No. 313 
(2/4/93), City of Indio Ordinance No. 1138 (3/17/93), City of La Quinta 
Ordinance No. 219 (12/15/92), City of Palm Desert Ordinance No. 701 (1/
14/93), City of Palm Springs Ordinance No. 1439 (4/21/93), City of 
Rancho Mirage Ordinance No. 575 (8/5/93), and County of Riverside 
Ordinance No. 742 (1/4/94). These ordinances were submitted as SIP 
revisions on February 16, 1995.
    This approval was proposed on August 11, 1998 (63 FR 42786-42792). 
The reader is referred to that notice for additional detail on the 
affected areas and the SIP submittals, as well as a summary of relevant 
CAA requirements and EPA interpretations of those requirements. EPA 
received no comments on the proposal.

B. Specific Approval Provisions Relating to SCAQMD Rule 403--Fugitive 
Dust, and SCAQMD Rule 403.1--Wind Entrainment of Fugitive Dust

    As discussed in the notice of proposed rulemaking, EPA is not 
approving into the SIP section (i) of Rule 403, which establishes fees 
which are enforced locally only, and which are not integral to the rule 
requirements.
    As requested by CARB and SCAQMD, EPA is approving the following 
sections of the ``Rule 403 Implementation Handbook,'' which was 
included as part of the SIP revision and which is incorporated by 
reference:
    (1) ``Soil Moisture Testing Methods''--ASTM Standard Test Method D 
2216 for Laboratory Determination of Water (Moisture) Content of Soil, 
Rock, and Soil-Aggregate Mixtures, and ASTM Standard Test Method 1557 
for Laboratory Compaction Characteristics of Soil Using Modified Effort 
(56,000 ft-lb/ft (2,700 kN-m/m\3\));
    (2) ``Storage Piles''--Surface-Area Calculations and ASTM Standard 
Method C-136 for Sieve Analysis of Fine and Coarse Aggregates;
    (3) ``Best Available Control Measures'';
    (4) ``Reasonably Available Control Measures'';
    (5) ``Guidance for Large Operations.''
    EPA's proposed approval notes that Rule 403 strengthens the SIP but 
also contains a deficiency, in allowing the SCAQMD Executive Officer 
and CARB the discretion to approve equivalent test methods for 
determining soil moisture content and soil compaction characteristics 
(Rule 403, Table 2, paragraphs (1a) and (1b)). This discretion could 
result in enforceability problems and is therefore not consistent with 
CAA section 172(c)(6). Because of this deficiency, EPA cannot grant 
full approval of Rule 403 under section 110(k)(3) and part D. Also, 
because the rule is not composed of separable parts that meet all the 
applicable CAA requirements, EPA cannot grant partial approval of Rule 
403 under section 110(k)(3). However, EPA may grant a limited approval 
of Rule 403 under section 110(k)(3) in light of EPA's authority 
pursuant to section 301(a) to adopt regulations necessary to further 
air quality by strengthening the SIP.
    At the same time, EPA is also finalizing a limited disapproval of 
Rule 403 because it contains the ``director's discretion'' deficiency. 
The potential sanctions that might result from this disapproval are set 
forth in section II. However, as discussed below in section I.C., EPA 
expects that future revisions to Rule 403 will resolve this issue by 
requiring that equivalent test methods receive EPA approval.
    It should be noted that Rule 403 has been adopted by SCAQMD and is 
currently in effect. EPA's final limited approval/limited disapproval 
action will not prevent SCAQMD or EPA from enforcing the rule.
    As requested by CARB and SCAQMD, EPA is approving with Rule 403.1 
the following sections of the ``Rule 403.1 Implementation Handbook,'' 
which was included as part of the SIP revision and which is 
incorporated by reference:
    (1) ``Wind Monitoring''--performance standards for wind monitoring 
equipment; and
    (2) ``Storage Piles''--Surface-Area Calculations and ASTM Standard 
Method C-136 for Sieve Analysis of Fine and Coarse Aggregates.

C. Pending SCAQMD Amendments to Rules 403 and 1186

    SCAQMD has recently issued for public review proposed revisions to 
Rules 403 and 1186. The proposed revisions to Rule 403 include a

[[Page 67786]]

correction to the ``director's discretion'' provision (e.g., in Table 
2, paragraphs (1a) and (1b)), to add a requirement for EPA approval of 
alternative test methods. If these corrections are adopted and 
submitted as a SIP revision, EPA intends to propose approval of the 
amended provision fully, thus superseding the limited disapproval.
    SCAQMD has also proposed changes to Rule 403 to minimize the impact 
of the agricultural provisions in Rule 403 while continuing to meet the 
rule's air quality objectives. In order to allow time to implement an 
outreach program, the District also proposes to delay by 6 months the 
compliance date for agricultural operations. If adopted and submitted 
as a SIP revision and supported by SCAQMD showings that the changes 
will not interfere with attainment, progress, or any other applicable 
CAA requirements, EPA intends to propose approval of these amendments.
    Because of the need for more time to complete specific technical 
street sweeper certification protocols, SCAQMD has proposed to amend 
Rule 1186 to delay by 1 year the effective date for procurement of 
PM10-efficient sweepers. As in the case of the proposed 
revisions to Rule 403, EPA intends to propose to approve the revision 
to Rule 1186 if adopted and submitted as a SIP revision and supported 
by SCAQMD showing that the revisions will not interfere with 
attainment, progress, or any other applicable CAA requirements.

II. Final EPA Action

    Except for the director's discretion provisions of SCAQMD Rule 403, 
discussed above, the submitted rules and ordinances clarify and 
strengthen the existing SIP. EPA takes final action to approve the 
rules and ordinances under section 110(k)(3) of the CAA as meeting the 
requirements of section 110(a) and Part D.
    As mentioned in section I.B., EPA proposes a limited approval of 
SCAQMD Rule 403 under CAA sections 110(k)(3) and 301(a), and a limited 
disapproval of Rule 403, because the rule contains enforceability 
deficiencies inconsistent with CAA section 172(c)(6). Under CAA section 
179(a)(2), if EPA disapproves a submission under section 110(k) for an 
area designated as nonattainment, based on the submission's failure to 
meet CAA requirements, EPA must apply one of the sanctions set forth in 
section 179(b) unless the deficiency has been corrected within 18 
months of such disapproval. Section 179(b) provides two sanctions 
available to the Administrator: highway funding and offsets. The 18 
month period referred to in section 179(a) will begin on the effective 
date of EPA's final limited disapproval.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any state implementation plan. Each request for revision to 
the state implementation plan shall be considered separately in light 
of specific technical, economic, and environmental factors and in 
relation to relevant statutory and regulatory requirements.

III. 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 12875

    Under Executive Order 12875, Enhancing the Intergovernmental 
Partnership, EPA may not issue a regulation that is not required by 
statute and that creates a mandate upon a State, local, or tribal 
government, unless the Federal government provides the funds necessary 
to pay the direct compliance costs incurred by those governments, or 
EPA consults with those governments. If EPA complies by consulting, 
Executive Order 12875 requires EPA to provide to the Office of 
Management and Budget a description of the extent of EPA's prior 
consultation with representatives of affected State, local, and tribal 
governments, the nature of their concerns, copies of any written 
communications from the governments, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 12875 
requires EPA to develop an effective process permitting elected 
officials and other representatives of State, local, and tribal 
governments ``to provide meaningful and timely input in the development 
of regulatory proposals containing significant unfunded mandates.'' 
Today's rule does not create a mandate on State, local or tribal 
governments. The rule does not impose any enforceable duties on these 
entities. Accordingly, the requirements of section 1(a) of E.O. 12875 
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 Executive Order 13084, Consultation and Coordination with 
Indian Tribal Governments, EPA may not issue a regulation that is not 
required by statute, that significantly 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, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to 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, Executive Order 13084 requires EPA to develop 
an effective process permitting elected officials 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

[[Page 67787]]

small governmental jurisdictions. This final 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 and disapprove requirements that the State is already imposing. 
Therefore, because the Federal SIP approval and 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).

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 and disapproval 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. This rule is not a 
``major'' rule as defined by 5 U.S.C. 804(2).

H. 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 8, 1999. 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).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
references, Intergovernmental relations, Particulate matter, Reporting 
and recordkeeping requirements, Sulfur dioxide.

    Note: Incorporation by reference of the State Implementation 
Plan for California was approved by the Director of the Federal 
Register on July 1, 1982.

    Dated: November 13, 1998.
Laura Yoshii,
Regional Administrator, Region IX.

    Part 52, chapter I, title 40 of the Code of Federal Regulations 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 F--California

    2. Section 52.220 is amended by adding paragraphs (c)(194)(i)(H); 
(c)(248)(i)(A)(3); (c)(248)(i)(B)(2); and (c)(257) to read as follows:


Sec. 52.220  Identification of plan.

* * * * *
    (c) * * *
    (194) * * *
    (i) * * *
    (H) South Coast Air Quality Management District.
    (1) Rule 403.1, adopted on January 15, 1993.
* * * * *
    (248) * * *
    (i) * * *
    (A) * * *
    (3) Rules 52, 53, 54, amended on January 27, 1997.
    (B) * * *
    (2) Rule 403, amended on February 14, 1997, and Rule 1186, adopted 
on February 14, 1997.
* * * * *
    (257) Plan revisions for the Coachella Valley Planning Area were 
submitted on February 16, 1995, by the Governor's designee.
    (i) Incorporation by reference.
    (A) Fugitive dust control ordinances for: City of Cathedral City 
Ordinance No. 377, adopted on February 18, 1993; City of Coachella 
Ordinance No. 715, adopted on October 6, 1993; City of Desert Hot 
Springs Ordinance No. 93-2, adopted on May 18, 1993; City of Indian 
Wells Ordinance No. 313, adopted on February 4, 1993; City of Indio 
Ordinance No. 1138, adopted on March 17, 1993; City of La Quinta 
Ordinance No. 219, adopted on December 15, 1992; City of Palm Desert 
Ordinance No. 701, adopted on January 14, 1993; City of Palm Springs 
Ordinance No. 1439, adopted on April 21, 1993; City of Rancho Mirage 
Ordinance No. 575, adopted on August 5, 1993; and County of Riverside 
Ordinance No. 742, adopted on January 4, 1994.
* * * * *
[FR Doc. 98-32563 Filed 12-8-98; 8:45 am]
BILLING CODE 6560-50-P