[Federal Register Volume 72, Number 147 (Wednesday, August 1, 2007)]
[Rules and Regulations]
[Pages 41896-41900]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-14555]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2006-0729; FRL-8439-2]


Revisions To the Arizona State Implementation Plan, Pinal County 
Air Quality Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing a limited approval and limited disapproval 
of revisions to the Pinal County Air Quality Control District (PCAQCD) 
portion of the Arizona State Implementation Plan (SIP). This action was 
proposed in the Federal Register on October 17, 2006 and concerns 
particulate matter (PM-10) emissions from fugitive dust. Under 
authority of the Clean Air Act as amended in 1990 (CAA or the Act), 
this action simultaneously approves local rules that regulate these 
emission sources and directs Arizona to correct rule deficiencies.

DATES: Effective Date: This rule is effective on August 31, 2007.

ADDRESSES: EPA has established docket number EPA-R09-OAR-2006-0729 for 
this action. The index to the docket is available electronically at 
http://www.regulations.gov and in hard copy at EPA Region IX, 75 
Hawthorne Street, San Francisco, California. While all documents in the 
docket are listed in the index, some information may be publicly 
available only at the hard copy location (e.g., copyrighted material), 
and some may not be publicly available in either location (e.g., CBI). 
To inspect the hard copy materials, please schedule an appointment 
during normal business hours with the contact listed in the FOR FURTHER 
INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Francisco D[oacute][ntilde]ez, EPA 
Region IX, (415) 972-3956, [email protected].

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

I. Proposed Action

    On October 17, 2006 (71 FR 60934), EPA proposed a limited approval 
and limited disapproval of the following rules that were submitted for 
incorporation into the Arizona SIP.

----------------------------------------------------------------------------------------------------------------
             Local agency                  Rule No.            Rule title             Adopted        Submitted
----------------------------------------------------------------------------------------------------------------
PCAQCD................................         4-2-020  General [Fugitive Dust].        06/29/93        11/27/95
PCAQCD................................         4-2-030  Definitions [Fugitive           06/29/93        11/27/95
                                                         Dust].
PCAQCD................................         4-2-040  Standards [Fugitive             06/29/93        11/27/95
                                                         Dust].

[[Page 41897]]

 
PCAQCD................................         4-2-050  Monitoring and Records          05/14/97        10/07/98
                                                         [Fugitive Dust].
----------------------------------------------------------------------------------------------------------------

    We proposed a limited approval because we determined that these 
rules improve the SIP and are largely consistent with the relevant CAA 
requirements. We simultaneously proposed a limited disapproval because 
some rule provisions conflict with section 110 and part D of the Act. 
These provisions include the following:
    1. The exemption of agricultural activities from fugitive dust 
rules without justification in Rules 4-2-020 and 4-2-030.
    2. Expression of rule requirements in highly general terms, using 
the vaguely defined criterion of ``reasonable precaution,'' in Rules 4-
2-030 and 4-2-040.
    3. The absence of recordkeeping provisions in Rule 4-2-050.
    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 30-day public comment period. 
During this period, we received comments from the following parties.
    1. Donald P. Gabrielson, Pinal County Air Quality Control District 
(PCAQCD); letter dated November 16, 2006 and received November 16, 
2006.
    2. Susan Asmus, National Association of Home Builders (NAHB); 
letter dated November 15, 2006 and received November 16, 2006.
    The comments and our responses are summarized below.
    Comment #1: PCAQCD commented that EPA's proposed rule incorrectly 
stated that there are no previous versions of Rules 4-2-020, 4-2-030, 
4-2-040, and 4-2-050 in the SIP. The comment pointed out that EPA 
approved Pinal County Regulation 7-3-1.2 (Fugitive Dust) into the SIP 
on November 15, 1978 (43 FR 53034). Regulation 7-3-1.2 contains 
provisions similar to those in the submitted version of 4-2-040.
    Response #1: EPA acknowledges that this correction to our proposed 
rule is accurate. However, this error does not have any substantive 
impact on our proposed action.
    Comment #2: PCAQCD commented that the effective agricultural 
exemption in Rules 4-2-020 and 4-2-030 was removed in a subsequent 
amendment of these rules, adopted on January 24, 2003. However, these 
amended rules were not submitted as SIP elements.
    Response #2: EPA acknowledges the 2003 amendments to Rules 4-2-020 
and 4-2-030. However, we can only act on rules that have been submitted 
by the state as SIP amendments. As this comment indicates, the 2003 
revisions were never submitted to EPA for inclusion in the SIP. If 
PCAQCD submits the 2003 version of these rules as a SIP amendment, our 
objection to the agricultural exemption will be resolved.
    Comment #3: PCAQCD disagreed that the definition and use of 
``reasonable precaution'' in Rules 4-2-030 and 4-2-040, respectively, 
is not sufficiently clear or enforceable. They commented that 
formulating specific requirements for every dust-generating activity 
would be impractical.
    Response #3: In our General Preamble for the Implementation of 
Title I of the Clean Air Act Amendments of 1990 we explain that 
procedures for determining compliance with a rule must be 
``sufficiently specific and nonsubjective so that two independent 
entities applying the procedures would obtain the same result.'' See 57 
FR 13498, 13568 (April 16, 1992). A SIP must also include ``clear, 
unambiguous, and measurable requirements'' for ensuring that sources 
are in compliance with control measures (ibid).
    These rules do not meet EPA's enforceability criteria because they 
do not establish any standards by which to gauge source compliance with 
implementation of reasonable precautions. Rules 4-2-030 and 4-2-040 
allow Executive Officer discretion in determining when measures have 
``effectively prevented'' the emission of fugitive dust. EPA considers 
such Executive Officer discretion a violation of Clean Air Act section 
110(a)(2)(A).
    In contrast, analogous rules in other areas describe specific 
requirements for significant sources of PM-10 by source category. 
Examples of district rules containing specific source category 
requirements include:
     Maricopa County Environmental Services Department, Arizona 
(MCESD), Rule 310 (Fugitive Dust).
     San Joaquin Valley Unified Air Pollution Control District, 
California (SJVUAPCD), Regulation 8 (Fugitive PM-10 Prohibitions).
[cir] Rule 8021 (Construction, Demolition, Excavation, Extraction, and 
Other Earthmoving Activities)
[cir] Rule 8031 (Bulk Materials)
[cir] Rule 8041 (Carryout and Trackout)
[cir] Rule 8051 (Open Areas)
[cir] Rule 8061 (Paved and Unpaved Roads)
[cir] Rule 8071 (Unpaved Vehicle/Equipment Traffic Areas)
[cir] Rule 8081 (Agricultural Sources)
     South Coast Air Quality Management District, California 
(SCAQMD), Rule 403 (Fugitive Dust).
     Clark County, Nevada.
[cir] Section 90 (Fugitive Dust From Open Areas and Vacant Lots)
[cir] Section 91 (Fugitive Dust From Unpaved Roads, Unpaved Alleys, and 
Unpaved Easement Roads)
[cir] Section 92 (Fugitive Dust From Unpaved Parking Lots, Material 
Handling and Storage Yards, and Vehicle and Equipment Storage Yards)
[cir] Section 93 (Fugitive Dust From Paved Roads and Street Sweeping 
Equipment)
[cir] Section 94 (Permitting and Dust Control for Construction 
Activities)
    It is PCAQCD's obligation to consider their own inventory and 
establish specific BACM requirements for significant source categories. 
EPA will work with PCAQCD to identify measures that are appropriate in 
light of local circumstances.
    Comment #4: PCAQCD disagreed with EPA's assertion in our proposed 
rule that the absence of recordkeeping provisions in Rule 4-2-050 
constitutes a rule deficiency. They further commented that the 
``reasonable precaution'' standard, combined with monitoring 
information, is sufficient to ascertain compliance with these rules.
    Response #4: Recordkeeping provisions in prohibitory rules provide 
the main instruments for effective enforcement of regulatory 
requirements. Recordkeeping is needed in order to verify compliance 
with the requirements or limits established by the rule. Section 110(a) 
of the Clean Air Act requires the inclusion of recordkeeping measures 
in any submitted SIP rule. Though recordkeeping requirements for 
fugitive dust may not be as detailed as those in typical stationary 
source rules, some feasible recordkeeping provisions are nevertheless 
required. Examples of district rules containing recordkeeping 
requirements include:
     Maricopa County Environmental Services Department, Arizona 
(MCESD), Rule 310 (Fugitive Dust).

[[Page 41898]]

     San Joaquin Valley Unified Air Pollution Control District, 
California (SJVUAPCD), Regulation 8 (Fugitive PM-10 Prohibitions), Rule 
8011 (General Requirements).
     South Coast Air Quality Management District, California 
(SCAQMD), Rule 403 (Fugitive Dust).
     Clark County, Nevada.
[cir] Section 90 (Fugitive Dust From Open Areas and Vacant Lots)
[cir] Section 91 (Fugitive Dust From Unpaved Roads, Unpaved Alleys, and 
Unpaved Easement Roads)
[cir] Section 92 (Fugitive Dust From Unpaved Parking Lots, Material 
Handling and Storage Yards, and Vehicle and Equipment Storage Yards)
[cir] Section 93 (Fugitive Dust From Paved Roads and Street Sweeping 
Equipment)
[cir] Section 94 (Permitting and Dust Control for Construction 
Activities)
    Comment #5: PCAQCD commented that EPA has no basis to impose 
sanctions on the basis of the currently submitted rules. They noted 
that the currently approved SIP Rule R7-3-1.2 also applies a 
``reasonable precaution'' standard with respect to agricultural 
activity, and that EPA is not justified in starting a sanctions clock 
for the current rules, in which the ``reasonable precaution'' 
requirement is repeated.
    Response #5: We approved Rule 7-3-1.2 into the SIP in 1978. Since 
that time, national policy on particulate matter and fugitive dust 
requirements has evolved. Sections 172(c)(1) and 189(a) of the CAA 
require moderate PM-10 nonattainment areas to implement reasonably 
available control measures (RACM), including reasonably available 
control technology (RACT) for stationary sources of PM-10. Section 
189(b) requires that serious PM-10 nonattainment areas, in addition to 
meeting the RACM/RACT requirements, implement best available control 
measures (BACM), including best available control technology (BACT). In 
the northern part of PCAQCD is the Apache Junction portion of the 
Phoenix metropolitan area, which is a serious PM-10 nonattainment area. 
In the northeastern part of PCAQCD is Hayden-Miami, which is a moderate 
PM-10 nonattainment area. PCAQCD regulates certain sources of PM-10 
within both nonattainment areas.
    EPA's guidance for both moderate and serious PM-10 nonattainment 
areas requires that RACM/RACT and BACM/BACT be implemented for all 
source categories unless the State demonstrates that a particular 
source category does not contribute significantly to PM-10 levels in 
excess of the NAAQS (i.e., de minimis sources). See the General 
Preamble for the Implementation of Title I of the Clean Air Act 
Amendments of 1990, 57 FR 13498, 13540 (April 16, 1992) and Addendum to 
the General Preamble for the Implementation of Title I of the Clean Air 
Act Amendments of 1990, 59 FR 41998, 42011 (August 16, 1994).
    The potential to emit of the emission activities subject to PCAQCD 
Rules 4-2-020, 4-2-030, 4-2-040, and 4-2-050 comprises a small but 
significant portion of the total PM-10 emissions in the Phoenix 
metropolitan area, according to the August 1999 Apache Junction Portion 
of the Metropolitan Phoenix PM-10 Serious State Implementation Plan 
(PM-10 Plan). Therefore, Rules 4-2-020, 4-2-030, 4-2-040, and 4-2-050 
must meet BACM/BACT control levels. Under this standard, Rules 4-2-020, 
4-2-030, 4-2-040, and 4-2-050 are not wholly approvable for inclusion 
in the SIP, and per Clean Air Act Section 179, a sanctions clock must 
be started.
    We also note the following from the preamble to the recently 
promulgated PM standards: ``The United States Department of Agriculture 
(USDA) has been working with the agricultural community to develop 
conservation systems and activities to control coarse particle 
emissions. Based on current ambient monitoring information, these USDA-
approved conservation systems and activities have proven to be 
effective in controlling these emissions in areas where coarse 
particles emitted from agricultural activities have been identified as 
a contributor to violation of the NAAQS. The EPA concludes that where 
USDA-approved conservation systems and activities have been 
implemented, these systems and activities have satisfied the Agency's 
reasonable available control measure and best available control measure 
requirements. The EPA believes that in the future, when properly 
implemented, USDA-approved conservation systems and activities should 
satisfy the requirements for reasonably available control measures or 
best available control measures.''
    Comment #6: NAHB sent a comment supporting EPA's proposed action.
    Response #6: EPA acknowledges this comment.

III. EPA Action

    No comments were submitted that change our assessment of the rules 
as described in our proposed action. Therefore, as authorized in 
sections 110(k)(3) and 301(a) of the Act, EPA is finalizing a limited 
approval of the submitted rules. This action incorporates the submitted 
rule into the Arizona SIP, including those provisions identified as 
deficient. As authorized under section 110(k)(3), EPA is simultaneously 
finalizing a limited disapproval of the rules. As a result, sanctions 
will be imposed unless EPA approves subsequent SIP revisions that 
correct the rule deficiencies within 18 months of the effective date of 
this action. These sanctions will be imposed under section 179 of the 
Act 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 rule deficiencies 
within 24 months. Note that the submitted rules have been adopted by 
the PCAQCD, 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, Regulatory Planning and Review

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

B. Paperwork Reduction Act

    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.)

C. 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 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

[[Page 41899]]

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).

D. Unfunded Mandates Reform Act

    Under sections 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 approval 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 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.

E. Executive Order 13132, Federalism

    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 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.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 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.'' This final rule does not have 
tribal implications, as specified in Executive Order 13175. 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. Thus, Executive Order 13175 does not 
apply to this rule.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    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.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    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.

I. 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.

J. Congressional Review Act

    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). This rule will be effective August 31, 2007.

K. 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 October 1, 2007. Filing a 
petition for reconsideration by

[[Page 41900]]

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: June 25, 2007.
Wayne Nastri,
Regional Administrator, Region IX.

0
Part 52, Chapter I, Title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for Part 52 continues to read as follows:

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

Subpart D--Arizona

0
2. Section 52.120 is amended by adding paragraphs (c)(84)(i)(L) and 
(107)(i)(A)(2) to read as follows:


Sec.  52.120  Identification of plan.

* * * * *
    (c) * * *
    (84) * * *
    (i) * * *
    (L) Rules 4-2-020, 4-2-030, and 4-2-040, adopted on June 29, 1993.
* * * * *
    (107) * * *
    (i) * * *
    (A) * * *
    (2) Rule 4-2-050, adopted on May 14, 1997.
* * * * *

[FR Doc. E7-14555 Filed 7-31-07; 8:45 am]
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