[Federal Register Volume 67, Number 62 (Monday, April 1, 2002)]
[Proposed Rules]
[Pages 15345-15348]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-7634]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 255-0320a; FRL-7164-8]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing both a conditional approval and a limited 
approval and limited disapproval of revisions to the San Joaquin Valley 
Unified Air Pollution Control District (SJVUAPCD or District) portion 
of the California State Implementation Plan (SIP). These revisions 
concern fugitive dust and particulate matter less than 10 microns in 
diameter (PM-10). We are proposing action on local rules that regulate 
these emissions under the Clean Air Act, as amended in 1990 (CAA or the 
Act). The proposed conditional approval is with respect to 
enforceability and reasonably available control measures (RACM), and 
the proposed limited approval and limited disapproval is with respect 
to best available control measures (BACM). We are taking comments on 
this proposal and plan to follow with a final action.

DATES: Any comments must arrive by May 31, 2002.

ADDRESSES: Mail comments to Andy Steckel, Rulemaking Office Chief (AIR-
4), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne 
Street, San Francisco, CA 94105.
    You can inspect copies of the submitted rule revisions and EPA's 
technical support document (TSD) at our Region IX office during normal 
business hours. You may also see copies of the submitted rule revisions 
and TSD 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 East 
Gettysburg Street, Fresno, CA 93726.

FOR FURTHER INFORMATION CONTACT: Karen Irwin, Planning Office (AIR-2), 
U.S. Environmental Protection Agency, Region IX; (415) 947-4116.

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

Table of Contents

I. The State's Submittal
    A. What rules did the State submit?
    B. Are there other versions of these rules?
    C. What is the purpose of the submitted rule revisions?
II. EPA's Evaluation and Action
    A. How is EPA evaluating the rules?
    B. Do the rules meet the evaluation criteria?
    C. Proposed action and public comment.
III. Background Information
    Why were these rules submitted?
IV. Administrative Requirements

I. The State's Submittal

A. What rules did the State submit?

    Table 1 lists the rules we are proposing to approve with the dates 
that they were adopted by the District and submitted by the California 
Air Resources Board (CARB) to EPA.

[[Page 15346]]



                                            Table 1.--Submitted Rules
----------------------------------------------------------------------------------------------------------------
          Local agency                Rule No.            Rule title             Adopted           Submitted
----------------------------------------------------------------------------------------------------------------
SJVUAPCD.......................               8011  General Requirements..           11/15/01           12/06/01
SJVUAPCD.......................               8021  Construction,                    11/15/01           12/06/01
                                                     Demolition,
                                                     Excavation,
                                                     Extraction and Other
                                                     Earthmoving
                                                     Activities.
SJVUAPCD.......................               8031  Bulk Materials........           11/15/01           12/06/01
SJVUAPCD.......................               8041  Carryout and Trackout.           11/15/01           12/06/01
SJVUAPCD.......................               8051  Open Areas............           11/15/01           12/06/01
SJVUAPCD.......................               8061  Paved and Unpaved                11/15/01           12/06/01
                                                     Roads.
SJVUAPCD.......................               8071  Unpaved Vehicle/                 11/15/01           12/06/01
                                                     Equipment Traffic
                                                     Areas.
SJVUAPCD.......................               8081  Agricultural Sources..           11/15/01           12/06/01
----------------------------------------------------------------------------------------------------------------

    On January 22, 2002, EPA found that these submittals meet the 
completeness criteria in 40 CFR part 51, appendix V.

B. Are there other versions of these rules?

    We approved prior versions of most of the submitted rules into the 
SIP on March 8, 2000 (65 FR 12188) with a limited approval and limited 
disapproval rulemaking. Table 2 summarizes source category coverage of 
the submitted rules compared to the applicable SIP rules.

               Table 2.--SIP and Submitted Rule Comparison
------------------------------------------------------------------------
                                      Applicable SIP
       Fugitive dust source                rule          Submitted rule
------------------------------------------------------------------------
General Requirements..............               8010               8011
Construction, Demolition,                        8020               8021
 Excavation, Extraction...........
Bulk Materials....................               8030               8031
Landfills.........................               8040               8021
Carryout/Trackout.................  8020, 8030, 8040,               8041
                                                 8070
Open Areas........................                 NA               8051
Paved and Unpaved Roads...........               8060               8061
Vehicle/Equipment Parking Areas...               8070               8071
Agricultural Sources..............                 NA               8081
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C. What is the purpose of the submitted rule revisions?

    The purpose of the submitted rules is to remedy deficiencies 
described in EPA's limited approval and limited disapproval of SIP 
Rules 8010, 8020, 8030, 8040, 8060 and 8070 on March 8, 2000. SJVUAPCD 
also submitted the revised rules to fulfill BACM requirements in CAA 
section 189.

II. EPA's Evaluation and Action

A. How is EPA evaluating the rules?

    Generally, SIP rules must be enforceable (see section 110(a) of the 
CAA) and must not relax existing requirements (see section 110(l) and 
section 193). We evaluated these criteria using the CAA as amended in 
1990, 40 CFR part 51, and various EPA policy and guidance documents. In 
addition, section 172(c)(1) and section 189(a) of the CAA require 
moderate PM-10 nonattainment areas to adopt RACM and section 189(b) of 
the CAA requires serious PM-10 nonattainment areas, including SJVUAPCD, 
to adopt BACM.
    Guidance for RACM and BACM, respectively, includes the following:

     General Preamble for the Implementation of Title I of the 
Clean Air Act Amendments of 1990 (57 FR 13498 and 13540, April 16, 
1992).
     Addendum to the General Preamble for the Implementation of 
Title I of the Clean Air Act Amendments of 1990 (59 FR 41998, August 
16, 1994).

B. Do the rules meet the evaluation criteria?

    We believe relevant requirements in CAA section 110(a), section 
110(l) and section 193 have been met because these rules are 
enforceable and more stringent overall than the existing SIP, which 
contains the District's 1996 adopted version of Regulation VIII. The 
District significantly strengthened Regulation VIII with the following 
requirements:
     Tightened general performance standard from 40% opacity to 
20% opacity;
     Added requirements for existing (as opposed to 1993 and 
later) public access unpaved roads, including agricultural unpaved 
access roads, where none existed previously;
     Added surface stabilization standards and corresponding 
test methods for unpaved roads/unpaved traffic/equipment areas and 
disturbed surfaces;
     Added coverage of weed abatement activities and related 
surface disturbances where none existed previously;
     Added requirements for Dust Control Plans for certain 
construction, demolition, excavation, and extraction sites where none 
existed previously;
     Eliminated a 7-day allowance before inactive disturbed 
surface areas at construction, demolition, excavation and extraction 
sites are subject to control;
     Eliminated an option allowing a 24-hour period before 
trackout controls are required for sites subject to Rule 8041;
     Added a requirement for trackout extending 50 feet or more 
to be cleaned up immediately;
     Added a requirement for trackout control devices or paved 
interior roads for certain sites where none existed previously;
     Added coverage of agricultural unpaved traffic/equipment 
areas where none existed previously;
     Added coverage of off-field open area agricultural 
materials where none existed previously;
     Expanded coverage of bulk material requirements from 
250 cubic yards of material to 100 cubic yards of 
material;

[[Page 15347]]

     Removed an exemption for unpaved roads or road segments 
\1/2\ mile in length;
     Removed control measure options for unpaved roads that 
limit applicability of requirements to the entire length of the road;
     Added requirements for unpaved roads and inactive 
disturbed areas (not associated with the spreading of landfill daily 
cover) at landfills;
     Removed an exemption for paved road segments 3 miles in 
length from shoulder stabilization requirements for new/modified paved 
roads;
     Removed several other exemptions that potentially weakened 
rule coverage.
    Because the version of Regulation VIII submitted on December 6, 
2001 includes the types of measures commonly relied upon for achieving 
the bulk of PM-10 emission reductions from fugitive dust sources (e.g. 
stabilizing unpaved roads and unpaved parking/traffic areas, etc.) and 
because rule coverage for the significant source categories subject to 
Regulation VIII was significantly expanded, it is more likely than not 
that the regulation fulfills the requirements in CAA section 189(a) 
regarding RACM. However, the District has not completely fulfilled the 
requirement described in 57 FR 13498 and 13540 (April 16, 1992) to 
demonstrate that it has applied RACM to the significant source 
categories that are subject to Regulation VIII. By letter dated March 
5, 2002, SJVUAPCD committed to fulfill this requirement by submitting a 
RACM demonstration to EPA within one year after the date of publication 
of final EPA action on this proposed rule. This commitment includes the 
following: (1) A complete list of candidate RACM for the following 
Regulation VIII significant sources: unpaved roads, unpaved vehicle/
equipment traffic areas, paved roads and earthmoving sources, including 
bulk materials storage/handling; (2) a reasoned justification for any 
candidate measures that the District did not adopt for these sources, 
including descriptions of measures for these source categories that the 
District is implementing outside the context of Regulation VIII; and 
(3) information that supports the reasonableness of the Regulation VIII 
coverage.
    In our prior proposed rulemaking (64 FR 51489, September 23, 1999), 
and subsequent final rulemaking (65 FR 12118, March 8, 2000) on 
Regulation VIII, we issued a limited approval and limited disapproval 
because of deficiencies in the submission. We established a sanctions 
clock under section 179 because the prior submission did not fulfill 
enforceability requirements pursuant to section 110(a) or demonstrate 
RACM pursuant to section 189(a). We also discussed deficiencies 
regarding section 189(b) because the prior submission did not 
demonstrate BACM. We did not, however, start a sanction clock for 
section 189(b) deficiencies because the District explicitly adopted the 
April 25, 1996, Regulation VIII rules for purposes of maintaining RACM, 
rather than for meeting BACM requirements. We have now concluded that 
the District's December 6, 2001 submittal corrected the enforceability 
and RACM deficiencies that were the basis for the sanction clock.
    At the time of our March 2000 action, we could have made a finding 
of failure to submit rules constituting BACM pursuant to section 
179(a). However, the District has now corrected this failure to submit 
because it submitted Regulation VIII for the stated purpose of meeting 
BACM on December 6, 2001. Now that the District has submitted 
Regulation VIII for BACM purposes, EPA has evaluated the December 6, 
2001 version of Regulation VIII for BACM. EPA believes that the 
submittal does not adequately fulfill the section 189(b) requirement 
for a BACM demonstration, nor any upgrades or revisions to the control 
measures that are required as a result of the BACM demonstration. EPA 
is proposing a limited approval and limited disapproval of the 
submittal with respect to BACM. If this proposal is finalized, it will 
start a sanction clock for the BACM deficiencies in the December 6, 
2001 submittal.
    The TSD accompanying this proposal provides more information on our 
evaluation of the District's submittal and identifies how the District 
has addressed the enforceability and RACM deficiencies associated with 
our March 8, 2000 rulemaking. The TSD also provides more information 
about why the December 6, 2001 submittal of Regulation VIII does not 
fulfill BACM requirements.

C. Proposed Action and Public Comment

    Today we propose to approve conditionally Rules 8011, 8021, 8031, 
8041, 8061, 8071 and 8081 pursuant to CAA section 110(k)(4), with 
respect to section 172(c)(1) and section 189(a)(1)(C)\1\. Thus, we have 
concluded that the December 6, 2001 submittal resolves the prior 
enforceability and RACM deficiencies identified in the March 8, 2000 
final action, subject to one condition. The condition is for the 
District to provide a comprehensive and adequate RACM demonstration for 
Regulation VIII in accordance with EPA policy and guidance documents. 
The SJVUAPCD has committed to provide this RACM demonstration within 
one year after the date of publication of the final action on this 
proposal. The conditional approval will be treated as a disapproval, 
with sanctions for section 189(a) immediately re-instated, if the 
SJVUAPCD fails to fulfill this commitment within the statutory one year 
period. The TSD associated with this proposed action provides more 
detail on our RACM evaluation.
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    \1\ CAA section 189(a)(1)(C) requires Reasonably Available 
Control Measures.
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    Based on this proposed conditional approval, elsewhere in today's 
Federal Register, EPA has published an interim final determination 
which stays the existing section 179 offset sanction and defers the 
section 179 highway sanction triggered by EPA's final rulemaking on 
SJVUAPCD Rules 8010, 8020, 8030, 8040, 8060, and 8070 (65 FR 12118, 
March 8, 2000). EPA is staying and deferring these sanctions because 
the December 6, 2001 submittal corrects the previously identified 
enforceability and RACM deficiencies.
    We further propose limited approval and limited disapproval of 
Rules 8011, 8021, 8031, 8041, 8051, 8061, 8071 and 8081 per section 
110(k)(3) and section 301(a) with respect to section 189(b)(1)(B) \2\. 
This is because the rules strengthen the SIP, but the State has not 
adequately demonstrated that they fulfill BACM requirements. The TSD 
associated with this proposed action provides more detail on our BACM 
evaluation. If finalized, this action would incorporate the submitted 
rules into the SIP, but sanctions will be imposed under section 179 of 
the Act unless EPA approves subsequent SIP revisions that correct the 
Regulation VIII BACM deficiencies as identified in the TSD within 18 
months of final action. These sanctions would be imposed according to 
40 CFR 52.31. A final disapproval would also trigger the FIP 
requirement under section 110(c). Note that the submitted rules have 
been adopted by the SJVUAPCD, and EPA's final limited disapproval would 
not prevent the local agency from enforcing them.
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    \2\ CAA section 189(b)(1)(B) requires Best Available Control 
Measures.
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    We will accept comments from the public on this proposal for the 
next 60 days. Unless we receive convincing new information during the 
comment period, we intend to publish a final action that will 
incorporate these rules into the federally enforceable SIP.

[[Page 15348]]

III. Background Information

Why Were These Rules Submitted?

    PM-10 harms human health and the environment. Section 110(a) of the 
CAA requires states to submit regulations that control PM-10 emissions. 
Table 3 lists some of the national milestones leading to the submittal 
of local agency rules that help control PM-10 emissions.

                Table 3.--PM-10 Nonattainment Milestones
------------------------------------------------------------------------
               Date                                 Event
------------------------------------------------------------------------
March 3, 1978.....................  EPA promulgated a list of total
                                     suspended particulate (TSP)
                                     nonattainment areas under the CAA,
                                     as amended in 1977 (43 FR 8964; 40
                                     CFR 81.305).
July 1, 1987......................  EPA replaced the TSP standards with
                                     new PM-10 standards (52 FR 24672).
November 15, 1990.................  CAA Amendments of 1990 were enacted,
                                     Pub. L. 101-549, 104 Stat. 2399,
                                     codified at 42 U.S.C. 7401-7671q.
November 15, 1990.................  PM-10 areas meeting the
                                     qualifications of section
                                     107(d)(4)(B) of the CAA were
                                     designated nonattainment by
                                     operation of law and classified as
                                     moderate or serious pursuant to
                                     section 189(a) or section 189(b).
                                     States are required by section
                                     110(a) to submit rules regulating
                                     PM-10 emissions in order to achieve
                                     the attainment dates specified in
                                     section 188(c).
------------------------------------------------------------------------

IV. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
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 32111, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this 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 approves 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 (Public Law 104-4).
    This 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 approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the CAA. 
This 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 CAA. 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 CAA. 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 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.).
    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 action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by May 31, 2002. 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, Intergovernmental 
relations, Particulate matter, Reporting and recordkeeping 
requirements.

    Dated: March 20, 2002.
Wayne Nastri,
Regional Administrator, Region IX.
[FR Doc. 02-7634 Filed 3-29-02; 8:45 am]
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