[Federal Register Volume 70, Number 167 (Tuesday, August 30, 2005)]
[Proposed Rules]
[Pages 51303-51306]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-17196]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

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


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

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

ADDRESSES: Send comments to Andrew Steckel, Rulemaking Office Chief 
(AIR-4), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne 
Street, San Francisco, CA 94105-3901 or e-mail to 
[email protected], or submit comments at http://www.regulations.gov.
    You can inspect copies of the submitted SIP revisions, EPA's 
technical support documents (TSDs), and public comments at our Region 
IX office during normal business hours by appointment.
    You may also see copies of the submitted SIP revisions by 
appointment at the following locations:

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

    Copies of the rules may also be available via the Internet at 
http://www.arb.ca.gov/drdb/drdbltxt.htm. Please be advised that this is 
not an EPA Web site and may not contain the same version of the rule 
that was submitted to EPA.

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

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. Background to Today's Proposal
III. EPA's Evaluation and Action
    A. How is EPA evaluating the rules?
    B. Do the rules meet the evaluation criteria?
    C. EPA recommendations to further improve the rules.
    D. Public comment and final action.
IV. Statutory and Executive Order Reviews

I. The State's Submittal

A. What Rules Did the State Submit?

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

[[Page 51304]]



                                            Table 1.--Submitted Rules
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                   Rule No.                                   Rule title                  Adopted     Submitted
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8011..........................................  General Requirements..................     08/19/04     09/23/04
8021..........................................  Construction, Demolition, Excavation,      08/19/04     09/23/04
                                                 Extraction, and Other Earthmoving
                                                 Activities.
8031..........................................  Bulk Materials........................     08/19/04     09/23/04
8041..........................................  Carryout and Trackout.................     08/19/04     09/23/04
8051..........................................  Open Areas............................     08/19/04     09/23/04
8061..........................................  Paved and Unpaved Roads...............     08/19/04     09/23/04
8071..........................................  Unpaved Vehicle/Equipment Traffic          09/16/04     09/23/04
                                                 Areas.
8081..........................................  Agricultural Sources..................     09/16/04     09/23/04
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    On March 23, 2005, these rule submittals were found complete by 
operation of law in accordance with section 110(k)(1) of the Act and 40 
CFR part 51, appendix V.

B. Are There Other Versions of These Rules?

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

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

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

II. Background to Today's Proposal

    On November 15, 1990, amendments to the CAA were enacted. Pub. Law 
101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-7671q. On the date 
of enactment of the 1990 CAA Amendments, PM-10 areas meeting the 
qualifications of section 107(d)(4)(B) of the Act, including the San 
Joaquin Valley Air Basin,\1\ were designated nonattainment by operation 
of law and classified as moderate pursuant to section 188(a). Under 
section 189(a) of the CAA, moderate PM-10 nonattainment areas must 
implement by December 10, 1993 Reasonably Available Control Measures 
(RACM) for PM-10.
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    \1\ The San Joaquin Valley Air Basin is under the jurisdiction 
of the SJVUAPCD.
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    On February 8, 1993, EPA reclassified five moderate nonattainment 
areas, including the San Joaquin Valley Air Basin, to serious 
nonattainment pursuant to section 188(b)(58 FR 3334). Section 189(b) 
requires serious nonattainment areas to implement Best Available 
Control Measures (BACM) by February 8, 1997, four years after 
reclassification.\2\
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    \2\ Because the statutory RACM and BACM implementation deadlines 
have passed, RACM and BACM must be implemented ``as soon as 
possible.'' Delaney v. EPA, 898 F.2d 687, 691 (9th Cir. 1990). EPA 
has interpreted this requirement to be ``as soon as practicable.'' 
55 FR 36458, 36505 (September 9, 1990). States are required to 
develop RACM and BACM that address both the annual and 24-hour PM-10 
standards. Ober v. EPA, 84 F.3d 304, 308-311 (9th Cir. 1996).
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    In response to section 110(a) and Part D of the Act, local 
California air pollution control districts adopted and the State of 
California submitted many PM-10 rules to EPA for incorporation into the 
California SIP on July 23, 1996, including a series of fugitive dust 
rules (``Regulation VIII'') adopted by SJVUAPCD.
    On March 8, 2000, EPA took final action on the 1996 version of 
Regulation VIII, issuing a limited approval and limited disapproval 
with an effective date of April 7, 2000. 65 FR 12118. EPA noted that it 
was ``finalizing the limited approval of these rules in order to 
strengthen the SIP and finalizing the limited disapproval because of 
the remaining deficiencies.'' Id. at 12119/1.\3\ Among the deficiencies 
identified by EPA were ``lack of appropriate standards and/or test 
methods that would ensure a level of control consistent with RACM or 
BACM * * *.'' Id.
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    \3\ The number following the slash (``/'') in this citation 
refers to the column on the Federal Register page.
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    As a result of the disapproval, EPA explained that the emissions 
offset sanction would apply 18 months after April 7, 2000, and the 
highway funding sanction six months later, unless the Air District 
cured the deficiencies. Id. at 12118/2-3. In addition, EPA explained 
that it would be required to promulgate a Federal Implementation Plan 
(FIP) if those deficiencies were not corrected within 24 months.
    SJVUAPCD adopted revised Regulation VIII rules on November 15, 
2001, which CARB submitted to EPA on December 6, 2001. SJVUAPCD 
intended that the new rules would both remedy the RACM deficiencies 
identified by EPA in its March 8, 2000 action, and fulfill BACM 
requirements under the CAA. EPA found that new provisions in Regulation 
VIII ``significantly strengthened'' the rules by tightening standards, 
covering more activities, and adding more requirements to control dust-
producing activities. 67 FR 15346-47 (4/1/02).
    On February 26, 2003, EPA issued a final rulemaking (Final Rule) 
(68 FR 8830) that conditionally approved the November 15, 2001 version 
of Regulation VIII with respect to RACM and issued a limited approval 
and limited disapproval of Regulation VIII with respect to BACM. Thus, 
the November 15, 2001 version of Regulation VIII was added to the SIP, 
yet a sanctions clock for the BACM deficiency began with the effective 
date of the Final Rule, March 28, 2003. Id. at 8833/3. We found that 
the submittal did not adequately fulfill the CAA section 189(b) 
requirement for a BACM demonstration, specifically identifying 
thresholds of source coverage within the rules (e.g., minimum size of 
sources subject to rule requirements) for which an adequate BACM 
demonstration was outstanding.
    On August 19, 2003, CARB submitted the ``2003 PM10 Plan, San 
Joaquin Valley Plan to Attain Federal Standards for Particulate Matter 
10 Microns and Smaller''. CARB submitted Amendments to this plan on 
December 30, 2003.\4\ Among other demonstrations, the Plan included a 
demonstration that RACM and BACM will be expeditiously implemented for 
all significant sources of PM-10. The Plan's RACM and BACM 
demonstration included fugitive dust sources subject to Regulation VIII 
and contained several specific commitments to upgrade Regulation VIII 
to a BACM level of control by September 2004. On

[[Page 51305]]

May 26, 2004, EPA approved the SJV 2003 PM-10 Plan, including the RACM 
and BACM demonstration for Regulation VIII sources, as meeting the 
requirements of CAA sections 189(a)(1)(C) and 189(b)(1)(B).\5\ 69 FR 
30006. Approval of this demonstration terminated all Regulation VIII 
sanction, FIP, and rule disapproval implications of our February 26, 
2003 action. Id. at 30035/1.
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    \4\ The Amendments to the 2003 PM-10 Plan supersede some 
portions of the 2003 PM-10 Plan and also add to it. References 
hereafter to the ``SJV 2003 PM-10 Plan'' or ``the Plan'' mean the 
2003 Plan submitted on August 19, 2003, as amended by the December 
30, 2003 submittal.
    \5\ As we explained in our proposed approval of the Plan, CAA 
section 189(a)(1)(C) requires implementation of RACM for moderate 
PM-10 nonattainment areas and that a serious area PM-10 plan must 
also provide for the implementation of RACM to the extent that the 
RACM requirement has not been satisfied in the area's moderate area 
plan as was the case here. We further explained that we do not 
normally conduct a separate evaluation to determine if a serious 
area plan's measures meet the RACM as well as BACM requirements as 
interpreted by us in the General Preamble for the Implementation of 
Title I of the Clean Air Act Amendments of 1990, 57 FR 13498, 13540 
(April 16, 1992) (General Preamble). This is because in our serious 
area guidance--Addendum to the General Preamble for the 
Implementation of Title I of the Clean Air Act Amendments of 1990, 
59 FR 41998, 42010 (August 16, 1994) (Addendum)--we interpret the 
BACM requirement as generally subsuming the RACM requirement (i.e., 
if we determine that the measures are indeed the ``best available,'' 
we have necessarily concluded that they are ``reasonably 
available''). 69 FR at 5417/footnote 11. Accordingly, in our 
evaluation and proposed approval of Regulation VIII below, 
references to BACM are intended to include RACM.
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III. EPA's Evaluation and Action

A. How Is EPA Evaluating the Rules?

    Generally, SIP rules must be enforceable (see section 110(a) of the 
Act) and must not relax existing requirements (see sections 110(l) and 
193). These rules have been evaluated for enforceability pursuant to 
the ``Guidance Document for Correcting Common VOC & Other Rule 
Deficiencies,'' EPA Region 9, August 21, 2001 (the Little Bluebook).
    We have also reviewed the submitted rules to determine whether the 
BACM commitments in the SJV 2003 PM-10 Plan have been adopted into 
Regulation VIII for purposes of fulfilling the SIP-approved Plan 
commitments.\6\ Since we have already approved the Plan's BACM 
demonstration for Regulation VIII sources, we are only evaluating these 
rules under CAA section 189(b) to the extent that requirements adopted 
in August and September, 2004, differ from the BACM commitments 
contained in the Plan. EPA's RACM guidance can be found in the General 
Preamble. EPA's BACM guidance can be found in the Addendum.
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    \6\ EPA's determination that the Plan satisfies CAA section 
189(b) requirements for BACM was, in part, based upon SJVUAPCD's 
commitments to adopt specific requirements for fugitive dust sources 
subject to Regulation VIII.
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B. Do the Rules Meet the Evaluation Criteria?

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

C. EPA Recommendations To Further Improve the Rules

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

D. Public Comment and Final Action

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

IV. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed action is not a ``significant regulatory action'' and 
therefore is not subject to review by the Office of Management and 
Budget. For this reason, this action is also not subject to Executive 
Order 13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This 
proposed action merely proposes to approve state law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. Accordingly, the Administrator certifies that 
this proposed rule will not have a significant economic impact on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-
existing requirements under state law and does not impose any 
additional enforceable duty beyond that required by state law, it does 
not contain any unfunded mandate or significantly or uniquely affect 
small governments, as described in the Unfunded Mandates Reform Act of 
1995 (Pub. L. 104-4).
    This proposed rule also does not have tribal implications because 
it will not have a substantial direct effect on one or more Indian 
tribes, on the relationship between the Federal Government and Indian 
tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian tribes, as specified by Executive 
Order 13175 (65 FR 67249, November 9, 2000). This action also does not 
have Federalism implications because it does not have substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132 (64 FR 43255, August 10, 1999). This action 
merely proposes to approve a state rule implementing a Federal 
standard, and does not alter the relationship or the distribution of 
power and responsibilities established in the Clean Air Act. This 
proposed rule also is not subject to Executive Order 13045 ``Protection 
of Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This proposed rule does 
not impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

[[Page 51306]]

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Particulate matter, Reporting and Recordkeeping 
requirements.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: August 5, 2005.
Keith Takata,
Acting Regional Administrator, Region IX.
[FR Doc. 05-17196 Filed 8-29-05; 8:45 am]
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