[Federal Register Volume 68, Number 38 (Wednesday, February 26, 2003)]
[Rules and Regulations]
[Pages 8830-8835]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-4383]



[[Page 8830]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA255-0385; FRL-7448-1]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing both a conditional approval and a limited 
approval and limited disapproval of revisions to the San Joaquin Valley 
Unified Air Pollution Control District's (SJVUAPCD) portion of the 
California State Implementation Plan (SIP). This action was proposed in 
the Federal Register on April 1, 2002, and concerns fugitive dust and 
particulate matter less than 10 microns in diameter (PM-10). The 
conditional approval is with respect to enforceability and reasonably 
available control measures (RACM), and the limited approval and limited 
disapproval is with respect to best available control measures (BACM). 
Under authority of the Clean Air Act as amended in 1990 (CAA or the 
Act), this action simultaneously approves local rules that regulate 
these emissions and directs California to correct rule deficiencies.

EFFECTIVE DATE: This rule is effective on March 28, 2003.

ADDRESSES: You can inspect copies of the administrative record for this 
action at EPA's Region IX office during normal business hours. You can 
inspect copies of the submitted SIP revisions at the following 
locations:

Environmental Protection Agency, Region IX, 75 Hawthorne Street, San 
Francisco, CA 94105-3901.
Air and Radiation Docket and Information Center, U.S. Environmental 
Protection Agency, Room B-102, 1301 Constitution Avenue, NW., (Mail 
Code 6102T), Washington, DC 20460.
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, Fresno, CA 93726.

    A copy 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 rules 
that were submitted to EPA.

FOR FURTHER INFORMATION CONTACT: Karen Irwin, EPA Region IX, (415) 947-
4116.

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

I. Proposed Action

    On April 1, 2002 (67 FR 15345), EPA proposed a limited approval and 
limited disapproval of the following SJVUAPCD rules that were adopted 
on November 15, 2001 and submitted for incorporation into the 
California SIP on December 6, 2001.

------------------------------------------------------------------------
          Rule                          Rule title
------------------------------------------------------------------------
8011..............................  General Requirements.
8021..............................  Construction, Demolition,
                                     Excavation, Extraction and Other
                                     Earthmoving Activities.
8031..............................  Bulk Materials.
8041..............................  Carryout and Trackout.
8051..............................  Open Areas.
8061..............................  Paved and Unpaved Roads.
8071..............................  Unpaved Vehicle/Equipment Traffic
                                     Areas.
8081..............................  Agricultural Sources.
------------------------------------------------------------------------

    These rules are part of SJVUAPCD's Regulation VIII. We proposed a 
limited approval of these rules because we determined that they improve 
the SIP and are largely consistent with the relevant CAA requirements. 
We simultaneously proposed a limited disapproval because we found that 
the submittal does not adequately fulfill the CAA section 189(b) 
requirement for a BACM demonstration, nor include any upgrades or 
revisions to the control measures that are required as a result of the 
BACM demonstration. Specifically, the State has not demonstrated that 
thresholds of source coverage within the rules (e.g., minimum size of 
sources subject to rule requirements) fulfill BACM. Such thresholds 
include: (1) Rule 8061 and 8081 unpaved road trip count thresholds; (2) 
Rule 8071 and 8081 unpaved vehicle/equipment traffic area trip count 
thresholds; (3) Rule 8071 and 8081 unpaved vehicle/equipment traffic 
area size threshold; (4) Rule 8081 unpaved road and unpaved vehicle/
equipment traffic area exclusion of implements of husbandry in the trip 
count; (5) Rule 8051 disturbed open areas threshold; (6) Rule 8041 
threshold for when trackout control devices must be employed; (7) Rule 
8041 trackout cleanup requirements as they apply to rural areas; (8) 
Rule 8031 and 8081 bulk materials thresholds; (9) Rule 8021 Dust 
Control Plan requirement thresholds; and (10) other control measures 
for paved road PM-10 emissions including preventing/mitigating trackout 
attributed to agricultural sources, stabilizing unpaved shoulders, 
frequent street sweeping and use of PM-10 efficient street sweepers.
    We also proposed a conditional approval of all the submitted rules 
listed above except for Rule 8051. We proposed the conditional approval 
because we believe that the submittal resolves the prior enforceability 
and RACM deficiencies identified in the March 8, 2000 final action, 
subject to one condition. The condition is for SJVUAPCD to adequately 
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 adopt and submit this demonstration 
within one year of EPA's publication of this final rule. This 
demonstration 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.
    Our proposed action contains more information on the basis for this 
rulemaking and on our evaluation of the submittal.

II. Public Comments and EPA Responses

    EPA's proposed action provided a 60-day public comment period. 
During this period, we received comments from the following parties.

1. Brent J. Newell, Center on Race, Poverty & Environment, on behalf of 
the Association of Irritated Residents and El Comite para el Bienestar 
de Earlimart, letters dated May 30, 2002.
2. Anne C. Harper, Earthjustice, on behalf of the Sierra Club, letter 
dated May 31, 2002.

    The comments and EPA responses are summarized below.
    Comment 1: The version of Regulation VIII adopted by SJVUAPCD was 
inappropriately negotiated between EPA and the regulated industry weeks 
after the local public comment period expired. It does not fulfill the 
relevant public process requirements as significant changes were made 
at the

[[Page 8831]]

last minute. These changes include exempting implements of husbandry 
from vehicle trip counts in Rule 8011, increasing the size of exempted 
open areas by 300 percent in Rule 8051, and rendering the 20% VE 
standard useless by allowing the U.S. Department of Agriculture (USDA) 
to approve Fugitive PM-10 Management Plans (FPMPs) in Rules 8061, 8071 
and 8081. Even SJVUAPCD's own staff did not have an opportunity to 
review the version presented to SJVUAPCD's Governing Board on November 
15.
    Response 1: 40 CFR part 51 Appendix V and 40 CFR 50.102 describe 
the public participation procedural requirements for adoption and 
submittal of SIP revisions. Paragraph (a)(1) of Section 50.102 requires 
that a State must conduct one or more public hearings prior to adoption 
and submission to EPA of any SIP revision such as Regulation VIII. 
Paragraphs 2(e) and (g) of part 51 Appendix V direct states to follow 
all relevant state requirements for public notice, hearing and 
adoption. California's Health and Safety Code (HSC) Sec. Sec.  40725-30 
outlines the procedures to be followed by local air districts, such as 
SJVUAPCD, in adopting, amending, or repealing any rule or regulation, 
including SIP revisions. EPA believes that these State rules are 
consistent with Administrative Procedures Act (APA) requirements for 
public participation, 5 U.S.C.A. 553.
    In regard to changes made to a SIP revision after the end of the 
public comment period, HSC Sec.  40726 allows for such changes without 
further public notice or comment as long as those changes are not ``so 
substantial as to significantly effect the meaning of the proposed rule 
or regulation.'' SJVUAPCD held a public hearing on Regulation VIII on 
October 31, 2001, received comments on the proposed rules, and 
responded to those comments. Both SJVUAPCD and CARB have determined 
that the public participation process followed by SJVUAPCD in adopting 
and submitting Regulation VIII fulfilled State and federal public 
participation requirements. EPA routinely relies upon determinations by 
State and local agencies as to compliance with their own public 
participation processes. Additionally, the final Regulation VIII 
(including the three provisions specifically noted in the comment) as 
adopted and submitted was not ``substantially'' different from the 
proposed regulation and was a logical outgrowth of the earlier proposed 
regulation. SJVUAPCD had received comments earlier in the public 
comment process that logically lead to the final version adopted. The 
District included in its submittal extensive comments received from 
many parties, including the regulated community, that related to the 
later revised Regulation VIII provisions.
    The commenters also appear concerned that the District considered 
comments provided by EPA in adopting the final Regulation VIII. 
However, state and local agencies are allowed and encouraged to 
consider EPA comments in adopting final SIP rules or revisions as long 
as all other public participation requirements are met.
    Comment 2: Rule revisions proposed to Rule 8081 on the day of the 
hearing but not adopted were not subject to the relevant public process 
requirements. These include a small farm exemption and an exemption for 
unpaved haul roads on days when no truck trips will occur.
    Response 2: Revisions not adopted are not the subject of EPA's 
proposed action.
    Comment 3: The exemption for ``implements of husbandry'' from 
vehicle trip counts violates CAA Sec.  189(a) RACM requirements because 
it effectively excludes an unknown but large number of agricultural 
road segments from Regulation VIII without any analysis of the number 
of exempted road segments or the efficacy of the measure. EPA's 
proposed conditional approval is not supported by a factual basis.
    Response 3: We agree that the State has not submitted detailed 
analysis of the impacts of the exemption for implements of husbandry. 
This does not mean that the exemption necessarily violates CAA Sec.  
189(a). Rather, it means that the State needs to perform and submit 
such analysis in order to determine whether the exemption and the rules 
fulfill Sec.  189(a). We concur with the comment's implication that 
this analysis is important and, as a result, have required it as part 
of our final conditional approval.
    Comment 4: The FPMP provisions in Rule 8081 allow exceedence of the 
general 20% opacity standard and violate Sec.  189(a) because they are 
not federally enforceable. Responsibility for enforcement of the FPMP 
requirements is given to the USDA instead of to EPA and SJVUAPCD, in 
conflict with CAA Sec.  110 enforceability requirements.
    Response 4: Paragraph 7.0 of Rule 8081 states that FPMPs must be 
approved by the USDA and must be designed to achieve 50% control 
efficiency. We believe Rule 8081 is adequately enforceable because it 
establishes criteria for evaluation of FPMPs (i.e., 50% control). This 
would allow SJVUAPCD and EPA to invalidate FPMPs that are not meeting 
50% control, regardless of USDA's action. Also, as made clear by 
paragraph 7.4, the terms of the final FPMP approved by USDA are subject 
to enforcement by SJVUAPCD, EPA and citizens.
    Comment 5: The exemption of all on-field sources, including smaller 
farms less than 320 acres and animal feed handling, which effectively 
exempts concentrated animal feeding operations, violates Sec.  189(a). 
Farming operations account for nearly 25% of all PM-10 emissions in the 
Valley. The exemption does not constitute an appropriate interpretation 
of a ``more likely than not'' finding that the RACM requirement has 
been met.
    Response 5: As discussed in our April 1, 2002 proposed action (67 
FR 15345), EPA only evaluated these rules with respect to those sources 
that the rules purport to regulate. This is documented in the August 
31, 1999 TSD associated with EPA's original proposed action (pg. 10). 
For example, Rule 8060, dated April 25, 1996, proposed to regulate 
unpaved roads for RACM purposes, so we evaluated whether the rule is 
sufficient for unpaved roads, including agricultural unpaved roads. 
Since Regulation VIII submittals have never purported to cover on-field 
agricultural activity, however, we have not attempted to evaluate 
whether Regulation VIII fulfills RACM/BACM for this activity. 
Therefore, we disagree with the commenters' statement that on-field 
agricultural source activity has been exempted from RACM through 
Regulation VIII; rather, it is just not a regulated activity under 
Regulation VIII.
    We agree with the commenters that it is important for the District 
to evaluate the impact and appropriate controls for on-field 
agricultural activity. The evaluation of whether and what controls are 
necessary for on-field agricultural activities to fulfill RACM/BACM 
should be performed in context of a rule that regulates such activity 
or of an overall PM-10 plan for the area. In 1991, CARB submitted an 
overall PM-10 plan for the area which purported to address RACM 
generally as well as on-field agricultural activity. We have not acted 
on this plan, and are not doing so now, as we are only acting on 
Regulation VIII. As a result of EPA's finding that the San Joaquin 
Valley failed to attain the PM-10 standards by the statutory deadline 
of December 31, 2001, the State must submit a new plan for the area to 
EPA by December 31, 2002. 67 FR 48039 (July 23, 2002). EPA also 
published a finding of nonsubmittal of a PM-10 plan for the San Joaquin 
Valley on March 18, 2002 (67 FR 11925), which could result

[[Page 8832]]

in the imposition of sanctions. We expect that these EPA actions will 
lead to development in the near term of a thorough RACM/BACM analysis 
and an overall PM-10 plan which include on-field agriculture activity.
    Comment 6: Other areas have adopted RACM or BACM measures that 
apply to farming operations that EPA has approved. For example, South 
Coast Air Quality Management District Rule 403(h)(1)(B) applies 
fugitive dust requirements to agricultural sources greater than 10 
acres, and Maricopa County Rule 310 requires RACM at cattle feedlots 
and livestock areas. Regulation VIII, in contrast, fully exempts on-
field agricultural activities in violation of CAA Sec.  189(a).
    Response 6: See Response 5.
    Comment 7: EPA recently issued a Notice of Deficiency (NOD) that 
found California's statutory agricultural permit exemption inconsistent 
with CAA Title V. CAA Title I also provides no such exemption for 
agricultural sources, and any rulemaking which generally exempts 
agriculture from Sec.  189(a) RACM requirements is inconsistent with 
the CAA under the same rationale articulated in the Notice of 
Deficiency.
    Response 7: The commenter is correct that Title I and Title V do 
not exempt major agricultural sources of air pollution from CAA 
permitting requirements. CAA Sec.  189(a), however, relies on a 
separate analysis to determine whether agricultural sources should be 
regulated for RACM purposes. Under Sec.  189(a), a permitting agency 
need not regulate or can limit regulation of certain activities or 
source categories from RACM requirements if one of the following two 
criteria are met: (a) emissions from the activity or source category 
are not significant; or (b) the level of imposed control fulfills RACM 
in light of cost-effectiveness, technical feasibility and attainment 
needs. However, as stated in Response 5, since Regulation VIII never 
purported to cover on-field agricultural activity, such an analysis is 
not necessary in the context of Regulation VIII. This analysis will be 
necessary in a rule that regulates such activity or in an overall PM-10 
plan for the area.
    Comment 8: EPA's finding that ``it is more likely than not'' that 
Regulation VIII fulfills the CAA 189(a) requirement is contradicted by 
the substantial agriculture-related deficiencies summarized in comments 
3 through 7 that exempt in total nearly half of all sources.
    Response 8: See Response 5 regarding on-field agricultural sources. 
The comment also concerns the exemption for implements of husbandry and 
the enforceability of FPMPs regarding agriculturally-owned unpaved 
roads. See Response 4 regarding FPMP enforceability. Our ``more likely 
than not'' RACM finding for Regulation VIII Rule 8081 coverage of 
agriculturally-owned unpaved roads relies on the expectation that a 
reasonable percentage of these roads are subject to control at the 75 
vehicle trips per day threshold during harvest season. We expect most 
of this traffic will be haul trucks carrying product to and from farms 
as opposed to implements of husbandry such as tractors. We agree with 
the commenter, however, that the actual impact of this exemption has 
not been thoroughly quantified, which is partly the basis for our 
action to approve this regulation only conditionally.
    Comment 9: EPA's 2002 proposed conditional approval of Regulation 
VIII for RACM is illegal in light of EPA's own finding that SJVUAPCD 
has not completely fulfilled the requirement described in 57 FR 13498 
and 13540 (April 16, 1992) to apply RACM to the significant source 
categories subject to Regulation VIII.
    Response 9: As discussed in our 2002 proposed action, we believe 
that Regulation VIII fulfills the substantive RACM requirements for the 
activities it covers and it is inappropriate to immediately initiate 
sanctions throughout the San Joaquin Valley solely because SJVUAPCD 
failed to complete a detailed RACM justification. SJVUAPCD did provide 
substantial cost-effectiveness data and other information that suggests 
that Regulation VIII fulfills RACM for the activities it covers. While 
a more complete RACM justification is required under the Act, we do not 
believe, in this case, that it is likely to lead to additional emission 
reductions. We have proposed, therefore, to temporarily stay the 
sanctions clock to allow a relatively short time for SJVUAPCD to 
provide the necessary analysis.
    Comment 10: SJVUAPCD is long overdue to require RACM and BACM 
pursuant to CAA Sec.  189(a) and Sec.  189(b), and has failed to adopt 
RACM and BACM as soon as practicable as required by the CAA. There is 
no basis for further postponing final action on RACM. EPA's proposed 
actions allowing SJVUAPCD to justify, revise, and resubmit Regulation 
VIII, extends the mandatory RACM and BACM deadlines and violates the 
CAA.
    Response 10: We concur that RACM and BACM were not applied in the 
San Joaquin Valley according to Clean Air Act deadlines. We believe, 
however, that RACM is now applied in the area for the activities 
covered by Regulation VIII. We do not view our conditional approval of 
these rules as RACM as postponing RACM implementation given our ``more 
likely than not'' finding that the requirements now meet RACM. See 
Response 11 regarding BACM.
    Comment 11: In this proposed limited approval/disapproval, EPA 
claims that it had not previously started a sanction clock for Sec.  
189(b) deficiencies because SJVUAPCD explicitly adopted the April 25, 
1996 Regulation VIII rules for purposes of maintaining RACM, rather 
than BACM. However, the February 8, 1997 statutory deadline for 
implementing BACM was long past even at the time of EPA's first 
disapproval of Regulation VIII, proposed on September 23, 1999 and 
finalized on March 8, 2000. Thus, EPA's disapproval at that time 
applied to the requirements of both RACM and BACM, and EPA's proposed 
action and responses to comments at that time clearly showed that it 
was evaluating the regulation for both standards.
    EPA cannot now propose limited approval/limited disapproval for the 
SIP revision's failure to demonstrate BACM when, two years ago, EPA 
took the same final agency action. It is an abuse of discretion to 
reinterpret the March 8, 2000 final rulemaking in such a fashion so 
that EPA may inappropriately toll the sanctions clock. EPA has a 
mandatory duty to impose sanctions under Sec.  179(a) unless all 
previously identified deficiencies have been corrected. It is clear 
that SJVUAPCD has not corrected the BACM deficiencies, which EPA 
concedes in this proposed rulemaking. EPA's proposal to grant limited 
approval/disapproval is thus inconsistent with the plain language of 
CAA Sec.  179(a).
    Response 11: We agree that the BACM implementation deadline had 
passed before EPA proposed a limited approval/disapproval of Regulation 
VIII in 1999. This does not determine, however, that our March 8, 2000 
final action validly established a BACM sanctions clock. Our March 2000 
action addressed rules that were submitted to fulfill RACM, not BACM. 
As a result and as discussed in our April 2002 proposed action, we do 
not believe that a sanctions clock could be started for BACM 
deficiencies under such circumstances. See Response 5 (where we 
similarly conclude that we cannot disapprove Regulation VIII for its 
exemption of on-field agricultural sources because the regulation does 
not purport to cover those sources for RACM purposes). However, the 
latest version of Regulation VIII submitted on December 6, 2001, does 
purport to meet BACM requirements. Therefore, by this

[[Page 8833]]

final rule, we are disapproving the 2001 version of Regulation VIII for 
failure to adequately demonstrate BACM and have started a valid BACM 
sanctions clock for SJVUAPCD to correct the deficiencies. In accordance 
with section 179 of the Clean Air Act, the State has 18 months to 
correct the deficiencies identified in EPA's action prior to the 
imposition of sanctions.
    Comment 12: EPA's April 1, 2002 interim final determination must be 
withdrawn because EPA cannot approve any individual rule without first 
approving an attainment demonstration. The judgement that EPA must make 
in approving a SIP revision, is ``to measure the existing level of 
pollution, compare it with national standards, and determine the effect 
on this comparison of specified emission modifications.'' Without an 
attainment demonstration, it is impossible to determine whether any 
revision is ``adequate to the task.'' Hall v. EPA, 263 F.3d 937 (9th 
Cir. 2001).
    Response 12: EPA regularly takes action on individual rules 
independent of action on overarching plans. As with the thousands of 
other rules we have acted on independent of attainment demonstrations, 
we believe we can effectively evaluate compliance with Sec.  110 and 
other CAA requirements and approve or disapprove these rules consistent 
with Sec.  110(k). In fact, the Court of Appeals for the Ninth Circuit 
specifically endorsed this practice in Hall. The Court held that 
``[t]he Act explicitly contemplates that * * * attainment 
demonstrations may be submitted for EPA review at different times than 
other elements of the States' SIP revisions (for example, revisions to 
control measures) are submitted for review.'' Id. at 937.
    The Commenter reasoned that language it quoted from Hall requires a 
rigorous comparison by EPA of emission reductions resulting from a 
proposed SIP revision to overall reductions necessary for attainment, 
and such an analysis cannot be done outside the context of an 
attainment demonstration. However, other language in the Court's Hall 
ruling softened this requirement in circumstances where an attainment 
demonstration is not yet in place. In the absence of an attainment 
plan, the Court held that EPA need only show that ``the particular plan 
revision before it is consistent with the development of an overall 
plan capable of meeting the Act's attainment requirements.'' Id. at 
938. In accordance with Hall, we have determined that Regulation VIII 
is consistent with development of an overall plan and we intend to 
evaluate Regulation VIII in the context of a PM-10 plan when the plan 
is submitted to us for review.
    Comment 13: For reasons given above, EPA must fully disapprove the 
Regulation VIII submittal, withdraw the interim final determination 
that SJVUAPCD has corrected the deficiencies, reinstate the associated 
sanctions clock, and promulgate a FIP.
    Response 13: For reasons discussed in the other responses, nothing 
in the comments has caused us to change our position as described in 
the proposal.
    Following the close of the comment period, we received two 
additional inquiries from Earthjustice. While EPA is not obligated to 
summarize or respond to these inquiries, we have done so below.
    Comment 14: Did EPA consider fugitive dust control measures adopted 
in other PM-10 nonattainment areas when evaluating SJVUAPCD's 
Regulation VIII for RACM and/or BACM? If so, is the review of other 
rules part of the record for EPA's action on Regulation VIII?
    Response 14: EPA considered control measures adopted in Maricopa 
County, Clark County and other areas as background information during 
our evaluation of Regulation VIII. Where EPA's approval of control 
measures for these other areas has been published in the Federal 
Register, they are incorporated by reference into the administrative 
record for EPA's decision on Regulation VIII.
    Comment 15: What is the origin of the ``more likely than not'' 
criteria used by EPA in its decision to conditionally approve 
Regulation VIII for RACM purposes.
    Response 15: In the preamble to the federal regulations 
implementing the sanctions provision of CAA Section 179, EPA stated 
that it can conditionally approve a SIP revision when ``it believes it 
is more likely than not that the State is complying with the relevant 
requirements of the Act.'' 59 FR 39832, 39838 (August 4, 1994). EPA 
clarified that this finding can also serve as a basis for an interim 
final determination that a State has corrected previously identified 
deficiencies.

III. EPA Action

    No comments were submitted that change our assessment of the rules 
as described in our proposed action. Therefore, as authorized in CAA 
section 110(k)(4), EPA is finalizing a conditional approval of Rules 
8011, 8021, 8031, 8041, 8061, 8071 and 8081 with respect to CAA section 
172(c)(1) and 189(a)(1)(C) RACM requirements. We have concluded that 
the December 6, 2001 submittal corrects the prior enforceability and 
RACM deficiencies identified in our March 8, 2000 final action, subject 
to one condition. That condition is for SJVUAPCD to provide a 
comprehensive and adequate demonstration that these rules fulfill RACM 
requirements for the source categories covered by Regulation VIII. 
SJVUAPCD has committed to provide this RACM demonstration within one 
year after the date of publication of this final action. This 
conditional approval action terminates the CAA section 189(a) sanction 
implications of our March 8, 2000 final action. However, the 
conditional approval will be treated as a disapproval, with section 
189(a) sanctions immediately reinstated, if SJVUAPCD fails to fulfill 
this commitment within the statutory one year period or upon EPA's 
final disapproval of a submitted RACM demonstration.
    In addition, as authorized in sections 110(k)(3) and 301(a) of the 
Act, EPA is finalizing a limited approval of submitted Rules 8011, 
8021, 8031, 8041, 8051, 8061, 8071 and 8081 with respect to CAA section 
189(b)(1)(B) BACM requirements. Specifically, the state has failed to 
demonstrate that thresholds of source coverage fulfill BACM 
requirements. This action incorporates the submitted rules into the 
California SIP, including those provisions identified as deficient. As 
authorized under section 110(k)(3), EPA is simultaneously finalizing a 
limited disapproval of the rule with respect to BACM requirements. As a 
result, sanctions will be imposed unless EPA approves subsequent SIP 
revisions that correct the deficiencies within 18 months of the 
effective date of this action. These sanctions will be imposed under 
CAA section 179 according to 40 CFR 52.31. In addition, EPA must 
promulgate a federal implementation plan (FIP) under section 110(c) 
unless we approve subsequent SIP revisions that correct the 
deficiencies within 24 months. Note that the submitted rules have been 
adopted by SJVUAPCD, and EPA's final limited disapproval does not 
prevent the local agency from enforcing them.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866

    The Office of Management and Budget 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

[[Page 8834]]

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 13132

    Executive Order 13132, 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, because it 
merely acts on 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.

D. Executive Order 13175

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    This final rule does not have tribal implications. It will not have 
substantial direct effects on tribal governments, 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 in Executive Order 13175. 
Thus, Executive Order 13175 does not apply to this rule.

E. Executive Order 13211

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a 
significant regulatory action under Executive Order 12866.

F. 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 act on 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.
    EPA's disapproval of the state request under section 110 and 
subchapter I, part D of the Clean Air Act does not affect any existing 
requirements applicable to small entities. Any pre-existing federal 
requirements remain in place after this disapproval. Federal 
disapproval of the state submittal does not affect state 
enforceability. Moreover, EPA's disapproval of the submittal does not 
impose any new Federal requirements. Therefore, 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).

G. 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 
costs to State, local, or tribal governments in the aggregate; or to 
the 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 action promulgated does not include a 
Federal mandate that may result in estimated costs of $100 million or 
more to either State, local, or tribal governments in the aggregate, or 
to the private sector. This Federal action acts on 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.

[[Page 8835]]

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.
    EPA believes that VCS are inapplicable to today's action because it 
does not require the public to perform activities conducive to the use 
of VCS.

I. 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).

J. 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 28, 2003. 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 
reference, Intergovernmental relations, Particulate matter, Reporting 
and recordkeeping requirements.

    Dated: January 22, 2003.
Wayne Nastri,
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)(304) to read 
as follows:


Sec.  52.220  Identification of plan.

* * * * *
    (c) * * *
    (304) New and amended regulations for the following APCD were 
submitted on December 6, 2001, by the Governor's designee.
    (i) Incorporation by reference.
    (A) San Joaquin Valley Unified Air Pollution Control District.
    (1) Rules 8011, 8021, 8031, 8041, 8051, 8061, 8071, and 8081, 
adopted on November 15, 2001.
* * * * *
[FR Doc. 03-4383 Filed 2-25-03; 8:45 am]
BILLING CODE 6560-50-P