[Federal Register Volume 65, Number 33 (Thursday, February 17, 2000)]
[Rules and Regulations]
[Pages 8057-8060]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-3474]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA-226-0172a; FRL-6534-2]


Approval and Promulgation of Implementation Plans; California 
State Implementation Plan Revision; South Coast Air Quality Management 
District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve revisions to the 
California State Implementation Plan (SIP) which concern the control of 
particulate matter (PM) emissions. The revisions amend Rules 403 and 
1186 adopted by the South Coast Air Quality Management District 
(SCAQMD). The intended effect of these SIP revisions is to regulate PM 
emissions in accordance with the requirements of the Clean Air Act, as 
amended in 1990 (CAA or the Act). This action will incorporate these 
rules into the Federally approved SIP. EPA is finalizing the approval 
of these revisions into the California SIP 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.

DATES: This rule is effective on April 17, 2000 without further notice, 
unless EPA receives adverse comments by March 20, 2000. If EPA receives 
such comments, then it will publish a timely withdrawal in the Federal 
Register informing the public that this rule will not take effect.

ADDRESSES: Written comments must be submitted to Dave Jesson at the 
Region IX office listed below. Copies of the rules and EPA's evaluation 
of the rules are available for public inspection at EPA's Region IX 
office during normal business hours. Copies of the submitted rules are 
also available for inspection at the following locations:

California Air Resources Board, Stationary Source Division, Rule 
Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95814.
South Coast Air Quality Management District, 21865 E. Copley Drive, 
Diamond Bar, CA 91765.

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

SUPPLEMENTARY INFORMATION:

I. Applicability

    We are approving revisions to SCAQMD Rule 403, Fugitive Dust, and 
SCAQMD Rule 1186, PM10 Emissions from Paved and Unpaved Roads and 
Livestock Operations. SCAQMD adopted the revised rules on December 11, 
1998, and the California Air Resources Board (CARB) submitted the rules 
to EPA on May 13, 1999. We determined the submittal to be complete on 
June 10, 1999.\1\ The rules establish fugitive dust controls needed to 
allow the area to attain the National Ambient Air Quality Standards 
(NAAQS) for fine particulate matter, or PM10.\2\
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    \1\ EPA adopted the completeness criteria on February 16, 1990 
(55 FR 5830) and, pursuant to section 110(k)(1)(A) of the CAA, 
revised the criteria on August 26, 1991 (56 FR 42216).
    \2\ The opinion issued by the U.S. Court of Appeals for the D.C. 
Circuit in American Trucking Assoc., Inc., et al. v. USEPA, No. 97-
1440 (May 14, 1999), among other things, vacated the new standards 
for PM10 that were published on July 18, 1997 and became effective 
September 16, 1997. However, the PM10 standards promulgated on July 
1, 1987 were not an issue in this litigation, and the Court's 
decision does not affect the applicability of those standards. 
Codification of those standards continues to be recorded at 40 CFR 
50.6. In the notice promulgating the new PM10 standards, the EPA 
Administrator decided that the previous PM10 standards that were 
promulgated on July 1, 1987, and provisions associated with them, 
would continue to apply in areas subject to the 1987 PM10 standards 
until certain conditions specified in 40 CFR 50.6(d) are met. See 62 
FR at 38701. EPA has not taken any action under 40 CFR 50.6(d) for 
the South Coast subject to this provision.
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II. Background

A. Applicable Requirements

    On November 15, 1990, the Clean Air Act Amendments of 1990 (CAA or 
the Act) were enacted. Public Law 101-549, 104 Stat. 2399, codified at 
42 U.S.C. 7401-7671q. The air quality planning requirements for the 
reduction of PM10 emissions through reasonably available control 
measures (RACM) and best available control measures (BACM) are set out 
in section 189(a)(1)(C) and 189(b)(1)(B) of the CAA.
    In determining the approvability of a PM rule or ordinance, we must 
evaluate the measure for consistency with the requirements of the CAA 
and EPA regulations, as found in section 110 and part D of the CAA and 
40 CFR part 51 (Requirements for Preparation, Adoption, and Submittal 
of Implementation Plans). We must also ensure that measures are 
enforceable, and strengthen or maintain the SIP's control strategy.
    For PM10 nonattainment areas classified as moderate, part D of the 
CAA requires that SIPs must include enforceable measures reflecting 
reasonably available control technology (RACT) for large stationary 
sources and RACM technology for other sources. The Act requires that 
SIPs for areas classified as serious must include measures applying 
best available control technology (BACT) to stationary sources and BACM 
technology to other sources. SCAQMD has jurisdiction over areas 
classified as serious for PM10.\3\
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    \3\ SCAQMD has jurisdiction over the South Coast Air Basin 
(SCAB) and Coachella Valley PM10 serious nonattainment areas. This 
Federal Register action for SCAQMD excludes the Los Angeles County 
portion of the Southeast Desert AQMA, otherwise known as the 
Antelope Valley Region in Los Angeles County, which is now under the 
jurisdiction of the Antelope Valley Air Pollution Control District 
as of July 1, 1997.
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    The statutory provisions relating to RACT, RACM, BACT, and BACM are 
discussed in EPA's ``General Preamble,'' which gives the Agency's 
preliminary views on how we intend to act on SIPs submitted under Title 
I of the Act. See generally 57 FR 13498 (April 16, 1992), 57 FR 18070 
(April 28, 1992), and 59 FR 41998 (August 16, 1994). In this action, 
EPA is applying these policies to this submittal, taking into 
consideration the specific factual issues presented.

B. Evaluation of Rules

1. Rule 1186--PM10 Emissions From Paves and Unpaved Roads, and 
Livestock Operations
    On August 11, 1998 (63 FR 42786), we fully approved SCAQMD Rule 
1186 as adopted on February 14, 1997. Rule

[[Page 8058]]

1186 requires street cleaning of paved roads and application of 
fugitive dust controls on unpaved roads. The rule also limits dust 
emissions at livestock operations.
    Our final approval of Rule 1186 noted that SCAQMD had prepared 
revisions to the rule because of the need for more time to complete 
specific technical street sweeper certification protocols. We indicated 
that we intended to approve the revision to Rule 1186 if adopted and 
submitted as a SIP revision and supported by an SCAQMD showing that the 
revisions will not interfere with attainment, progress, or any other 
applicable CAA requirements.
    On December 11, 1998, SCAQMD amended section (d)(2) of Rule 1186 to 
delay the effective date for procurement of PM10-efficient sweepers by 
one year (from January 1, 1999, to January 1, 2000). SCAQMD included in 
the Final Staff Report for amended Rule 1186 an analysis showing that 
the amendment will delay approximately 1.8 tons per day (tpd) in 
emission reductions from 1999 through 2005, and will not result in any 
emission reduction shortfall in 2006, the projected attainment date in 
SCAQMD's PM10 attainment plan.
    We agree that the delay is warranted, and we are encouraged by 
SCAQMD's progress during the past 6 months in developing a methodology 
for determining the PM10 collection efficiency of street sweepers. 
Based on SCAQMD's analysis of the limited impact of the one year delay, 
we conclude that the postponement of the compliance date is an 
approvable amendment to Rule 1186 and is consistent with the provisions 
of CAA section 110(l), which prevent our approval of a revision if it 
would interfere with any applicable requirement concerning attainment 
and reasonable further progress or any other applicable requirement of 
the Act.
    SCAQMD also made a minor amendment to the definition of ``Typical 
Roadway Materials.'' The purpose of the change was to allow use of 
other roadway materials of equivalent performance, in addition to 
concrete, asphaltic concrete, recycled asphalt, and asphalt. This minor 
revision requires an equivalency determination by SCAQMD, CARB, and 
EPA, and thus should ensure no loss of emission reduction benefit nor 
should it interfere with effective enforcement of the rule.
2. Rule 403--Fugitive Dust
    On August 11, 1998, we granted limited approval and limited 
disapproval of SCAQMD Rule 403 as amended on February 14, 1997. As 
discussed in the notice of final rulemaking (see especially pages 42788 
and 42789), we concluded that the 1997 version of 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), and 
Definition 17 Open Storage Pile). This discretion could result in 
enforceability problems and is therefore not consistent with CAA 
section 172(c)(6). Because of this deficiency, we could not grant full 
approval of Rule 403 under section 110(k)(3) and part D. Also, because 
the rule was not composed of separable parts that meet all the 
applicable CAA requirements, we could not grant partial approval of 
Rule 403 under section 110(k)(3). As a result, we issued simultaneously 
both a limited approval and limited disapproval of Rule 403.
    SCAQMD adopted on December 11, 1998, the following revisions to 
Rule 403:
    (1) Addition of a requirement in Table 2, paragraphs (1a) and (1b) 
that EPA approve equivalent methods for ASTM silt content and soil 
moisture methods;
    (2) Addition of a requirement in Table 1 (1F), Table 2 (6a), and 
Table 3 (3), that EPA approve equivalent control measures;
    (3) revised provisions affecting agricultural operations, with a 6-
month extension in the effective date to July 1, 1999, in order to 
allow time to implement an outreach program;
    (4) Addition of a ``Rule 403 Agricultural Handbook';
    (5) Addition of an exemption of sandblasting operations, to conform 
to State law (sandblasting operations will remain subject to the 
provisions of SCAQMD Rule 1140); and
    (6) Minor amendments to other provisions to clarify the rule's 
original intent.
    The first amendment listed above addresses our concern regarding 
the ``director's discretion'' provisions of Rule 403. This revision is 
approvable and allows us in this final action to rescind the limited 
disapproval of Rule 403. The second amendment also eliminates 
``director's discretion'' provisions and is likewise approvable because 
it strengthens the federal enforceability of the rule.
    In analyzing the implications of the third amendment, SCAQMD 
included in its Final Staff Report for amended Rule 403 a showing that 
the amendment will delay approximately 8.9 tpd in emission reductions 
for the 6 months from January 1, 1999 to July 1, 1999, and will not 
result in any emission reduction shortfall in subsequent years, 
including the projected attainment year (2006). Based on this analysis, 
we conclude that the postponement of the compliance date by 6 months is 
an approvable amendment to Rule 403. Moreover, we agree with SCAQMD 
that the delay is warranted in order to facilitate compliance with the 
rule's provisions for agricultural operations.
    The Rule 403 Agricultural Handbook allows producers to be exempted 
from Rule 403 requirements if they implement a specified number of 
conservation practices listed for the particular operation. The 
handbook includes conservation practices for active operations, 
inactive operations, farm yard areas, track-out, unpaved roads, and 
storage piles. We are approving the handbook because implementation of 
the conservation practices should achieve the emission reductions that 
would otherwise be accomplished through compliance with the general 
provisions of Rule 403.
    We approve the other changes to Rule 403 as minor clarifications.
    As requested by CARB and SCAQMD and consistent with our approval of 
the prior version of Rule 403, we are not approving into the SIP 
section (i) of Rule 403, which establishes fees which are enforced 
locally only, and we are approving only 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.''

III. Final EPA Action

    We are taking final action to approve amended Rule 403 (including 
the above-listed portions of Rule 403 Implementation Handbook and all 
of Rule 403 Agricultural Handbook) and Rule 1186 under section 
110(k)(3) of the CAA as meeting the requirements of

[[Page 8059]]

section 110(a) and part D. We are rescinding the limited disapproval of 
Rule 403, which was promulgated on August 11, 1998.
    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.
    We are publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. However, in the proposed rules section of this 
Federal Register publication, we are publishing a separate document 
that will serve as the proposal to approve SIP revision should adverse 
comments be filed. This rule will be effective April 17, 2000 without 
further notice unless we receive adverse comments by March 20, 2000.
    If we receive such comments, then we will publish a timely 
withdrawal of the direct final rule informing the public that the rule 
will not take effect. All public comments received will then be 
addressed in a subsequent final rule based on the proposed rule. We 
will not institute a second comment period on this rule. Any parties 
interested in commenting on this rule should do so at this time. If no 
such comments are received, the public is advised that this action will 
be effective April 17, 2000 and no further action will be taken on the 
proposed rule.

IV. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

B. Executive Order 13045

    Executive Order 13045, entitled 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 Executive Order 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 Executive Order 13045 because it does 
not involve decisions intended to mitigate environmental health or 
safety risks.

C. 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 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, Executive Order 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 Executive 
Order 13084 do not apply to this rule.

D. Executive Order 13132

    Executive Order 13121, entitled 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 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 
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.

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

[[Page 8060]]

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 April 17, 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).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxide, Volatile organic compounds.

    Dated: January 28, 2000.
Nora L. McGee,
Acting 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 paragraph (c)(263)(i)(A)(3) 
to read as follows:


Sec. 52.220  Identification of plan.

* * * * *
    (c) * * *
    (263) * * *
    (i) * * *
    (A) * * *
    (3) Rules 403 and 1186, amended on December 11, 1998.
* * * * *
[FR Doc. 00-3474 Filed 2-16-00; 8:45 am]
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