[Federal Register Volume 73, Number 223 (Tuesday, November 18, 2008)]
[Proposed Rules]
[Pages 68369-68373]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-27301]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2008-0566; FRL-8741-7]


Revisions to the California State Implementation Plan, Great 
Basin Unified Air Pollution Control District, Kern County Air Pollution 
Control District, Mohave Desert Air Quality Management District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing a disapproval of revisions to the Great Basin 
Unified Air Pollution Control District (GBUAPCD) portion of the 
California State Implementation Plan (SIP), and limited approval and 
limited disapproval of revisions to the Kern County Air Pollution 
Control District (KCAPCD) and Mohave Desert Air Quality Management 
District (MDAQMD) portions of the SIP. These revisions concern 
particulate matter (PM) emissions from fugitive dust sources. We are 
proposing action on 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 December 18, 2008.

[[Page 68370]]


ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2008-0566, by one of the following methods:
    1. Federal eRulemaking Portal: www.regulations.gov. Follow the 
online instructions.
    2. E-mail: [email protected].
    3. Mail or deliver: Andrew Steckel (Air-4), U.S. Environmental 
Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 
94105-3901.
    Instructions: All comments will be included in the public docket 
without change and may be made available online at www.regulations.gov, 
including any personal information provided, unless the comment 
includes Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. Information that you 
consider CBI or otherwise protected should be clearly identified as 
such and should not be submitted through www.regulations.gov or e-mail. 
www.regulations.gov is an ``anonymous access'' system, and EPA will not 
know your identity or contact information unless you provide it in the 
body of your comment. If you send e-mail directly to EPA, your e-mail 
address will be automatically captured and included as part of the 
public comment. If EPA cannot read your comment due to technical 
difficulties and cannot contact you for clarification, EPA may not be 
able to consider your comment.
    Docket: The index to the docket for this action is available 
electronically at 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: Jerry Wamsley, EPA Region IX, (415) 
947-4111, [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 rules?
II. EPA's Evaluation and Action
    A. How is EPA evaluating the rules?
    B. Do the rules meet the evaluation criteria?
    C. What are the rules deficiencies?
    D. EPA Recommendations to Further Improve the Rule
    E. Our Proposed Action and Public Comment
III. Statutory and Executive Order Reviews

I. The State's Submittal

A. What rules did the State submit?

    Table 1 lists the rules addressed by this proposal with the dates 
that they were adopted by the local air agency and submitted by the 
California Air Resources Board.

                                            Table 1--Submitted Rules
----------------------------------------------------------------------------------------------------------------
             Local agency               Rule          Rule title             Adopted        Submitted
----------------------------------------------------------------------------------------------------------------
GBUAPCD..............................            401    Fugitive Dust...........        12/04/06        03/07/07
KCAPCD...............................            402    Fugitive Dust...........        11/03/04        01/13/05
MDAQMD...............................            403.1  Fugitive Dust Control...        11/25/96        03/03/97
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    On July 23, 2007, February 16, 2005, and August 12, 1997 
respectively, EPA found that the GBUAPCD Rule 401, KCAPCD Rule 402, 
MDAQMD Rule 403.1 submittals met the completeness criteria in 40 CFR 
Part 51, Appendix V. These criteria must be met before formal EPA 
review begins.

B. Are there other versions of these rules?

    On June 6, 1977, EPA approved a prior version of GBUAPCD Rule 401 
into the State Implementation Plan (SIP); see 42 Federal Register (FR) 
28883. There have been no intervening submittals of Rule 401. We have 
not approved prior versions of KCAPCD Rule 402 and MDAQMD 403.1 into 
the SIP and there have been no intervening submittals of these rules to 
consider and we are acting on the most recent submittal of these two 
rules.

C. What is the purpose of the submitted rules?

    PM contributes to effects that are harmful to human health and the 
environment, including premature mortality, aggravation of respiratory 
and cardiovascular disease, decreased lung function, visibility 
impairment, and damage to vegetation and ecosystems. Section 110(a) of 
the CAA requires States to submit regulations that control PM 
emissions. These rules are designed to limit the emissions of visible 
air contaminants, usually but not always particulate matter (PM) 
emissions at industrial sites, unpaved roads, and open areas. EPA's 
technical support document (TSD) for each rule has more information 
about these rules.

II. EPA's Evaluation and Action

A. How is EPA evaluating these rules?

    Generally, SIP rules must be enforceable (see section 110(a) of the 
CAA) and must not relax existing requirements (see sections 110(l) and 
193). In addition, SIP rules must implement Reasonably Available 
Control Measures (RACM), including Reasonably Available Control 
Technology (RACT), in moderate PM nonattainment areas, and Best 
Available Control Measures (BACM), including Best Available Control 
Technology (BACT), in serious PM nonattainment areas (see CAA sections 
189(a)(1) and 189(b)(1)).
    The GBUAPCD regulates a PM nonattainment area classified as serious 
(see 40 CFR part 81). The overwhelming significant source of PM 
emissions in the Owens Valley Planning Area (OVPA) is the Owens dry 
lakebed. Consequently, BACM measures are required for the lakebed 
sources of emissions (see 68 FR 48305). At present, Rule 401 regulates 
other sources of fugitive dust emissions that are not determined to be 
significant within the 1998 BACM SIP and in comparison with PM 
emissions from the Owens dry lakebed. Consequently, Rule 401 must meet 
our enforceability criteria in implementing its requirements, but not 
specific BACM or RACM requirements for its sources of PM emissions. 
Also, Rule 401 is not a required Clean Air Act PM submittal.
    KCAPCD regulates a PM attainment area in the Indian Wells Valley, 
formerly classified as a moderate PM nonattainment area. (see 40 CFR 
part 81). The Indian Wells Valley maintenance plan did not assign Rule 
402 to its list of six RACM measures and the rule is not cited as being 
a principal SIP control measure in attaining and maintaining the PM-10 
standard (see 68

[[Page 68371]]

FR 24386). Subsequently, the Kern County portion of the Indian Wells 
Valley has maintained its attainment of the 24 hour and annual PM-10 
standard. Consequently, Rule 402 need not fulfill RACM and the rule is 
not a required CAA submittal. However, to be approved into the SIP, the 
rule must meet the enforceability criteria as described by Section 
110(a) of the CAA.
    MDAQMD regulates a PM nonattainment area in the Trona subregion of 
the Searles Valley, classified as a moderate PM nonattainment area. 
(see 40 CFR part 81). On August 5, 2002, EPA found that the Trona area 
met the 24 hour and annual PM-10 standard as of December 31, 1994 (see 
67 FR 50805 and 66 FR 31873), meaning that between 1992 and 1994 no 
violations of either PM standard were recorded. Subsequently, the area 
has maintained its attainment of the 24 hour and annual PM-10 
standards. Rule 403.1 need not fulfill RACM because the area was in 
attainment of the standard at the time of designation and the rule 
would not advance the area's attainment date (see 57 FR 13560, April 
16, 1992). To be approved into the SIP, the rule must meet the 
enforceability criteria as described by Section 110(a) of the CAA. For 
the purposes of a maintenance plan, Rule 403.1 contains contingency 
measure provisions; however, EPA has neither approved a maintenance 
plan for the Trona subregion, nor has EPA invoked the need to implement 
these contingency measures.
    Guidance and policy documents that we use to help evaluate specific 
enforceability and RACM or BACM requirements consistently include the 
following:
    1. Portions of the proposed post-1987 ozone and carbon monoxide 
policy that concern RACT, 52 FR 45044, November 24, 1987.
    2. ``Issues Relating to VOC Regulation Cutpoints, Deficiencies, and 
Deviations; Clarification to Appendix D of November 24, 1987 Federal 
Register Notice,'' (Blue Book), notice of availability published in the 
May 25, 1988 Federal Register.
    3. ``Guidance Document for Correcting Common VOC & Other Rule 
Deficiencies,'' EPA Region 9, August 21, 2001 (the Little Bluebook).
    4. ``State Implementation Plans; General Preamble for the 
Implementation of Title I of the Clean Air Act Amendments of 1990,'' 57 
FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992).
    5. ``State Implementation Plans for Serious PM-10 Nonattainment 
Areas, and Attainment Date Waivers for PM-10 Nonattainment Areas 
Generally; 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).
    6. ``PM-10 Guideline Document,'' EPA 452/R-93-008, April 1993.
    7. ``Fugitive Dust Background Document and Technical Information 
Document for Best Available Control Measures,'' EPA 450/2-92-004, 
September 1992.

B. Do the rules meet the evaluation criteria?

    GBUAPCD Rule 401 contains provisions which do not meet the 
evaluation criteria concerning enforceability. These provisions are 
summarized below and discussed further in the TSD.
    KCAPCD Rule 402 improves the SIP by establishing more stringent 
emission limits, control measures, and monitoring requirements. The 
rule is largely consistent with the relevant policy and guidance 
regarding enforceability and SIP relaxations. However, the rule has 
provisions which do not meet the evaluation criteria regarding 
enforceability. These provisions are summarized below and discussed 
further in the TSD.
    MDAQMD Rule 403.1 improves the SIP by establishing more stringent 
emission limits, control measures, and monitoring requirements. The 
rule is largely consistent with the relevant policy and guidance 
regarding enforceability and SIP relaxations. However, the rule has 
provisions which do not meet the evaluation criteria regarding 
enforceability. These provisions are summarized below and discussed 
further in the TSD.

C. What are the rule deficiencies?

    Regarding Rule GBUAPCD Rule 401, the provisions listed below 
conflict with section 110 and part D of the Act and prevent full 
approval of the SIP revision.
    1. The rule lacks a 20% opacity limit. GBUAPCD should either 
incorporate or reference such a 20% opacity limit.
    2. The rule lacks a clear description of required control measures 
for meeting the rule's opacity and property line PM emission limits. 
GBUAPCD should also remove the ``reasonable precautions'' language.
    3. GBUAPCD should either provide a precise wind speed exemption 
from the rule's emission standards, or delete the language concerning 
``normal wind conditions''.
    4. GBUAPCD should remove director's discretionary language in 
Section D.1.
    5. As specified by the PM-10 plan, GBUAPCD should define required 
BACM provisions beyond those already adopted to reduce Owens dry 
lakebed dust emissions, and specify an enforceable implementation 
schedule.
    Regarding Rule KCAPCD Rule 402, the provisions listed below 
conflict with section 110 and part D of the Act and prevent full 
approval of the SIP revision.
    1. The definitions for ``open storage piles'' and ``prevailing wind 
direction'' contain instances of APCO discretion that should be 
delimited by specific criteria for adjudicating the issues within these 
definitions.
    2. The rule provides an overly broad exemption for agricultural 
operations.
    3. The rule provides an overly broad exemption for actions required 
by federal or state endangered species legislation, or the Surface 
Mining and Reclamation Act.
    4. The rule provides an overly broad exemption for public parks and 
recreation areas such as county, state, and national parks, recreation 
areas, forests, and monuments.
    5. The rule provides exemptions for contractors provided reasonably 
available control measures were implemented prior to a contract 
termination date and a final grading inspection. However, no records 
are required to demonstrate implementation of reasonably available 
control measures.
    6. Monitoring provisions are set aside for large operations for a 
calendar quarter. This exemption from monitoring is not justified or 
explained.
    7. The rule states that no visible emissions are allowed beyond the 
property line of an active operation; however, the rule does not 
specify an opacity limit and the test methods for determining 
compliance for unpaved roads which are exempted from the property line 
limit.
    8. The suggested reasonably available control measures for fugitive 
dust listed in Table 1 are not specific and lack standards for 
determining compliance and allied test methods.
    9. Large operations may set aside applying control measures if the 
APCO concurs that ``special technical, e.g., non-economic 
circumstances'' prevent control measure implementation. This exemption 
is vague and allows for inappropriate Director's Discretion. KCAPCD 
should define the circumstances that may prevent control measure 
implementation and the criteria the APCO will use to decide these 
issues.
    10. The rule should specify that all records demonstrating 
compliance

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should be maintained for two years and made available to the Control 
Officer upon request.
    Regarding Rule MDAQMD Rule 403.1, the provisions listed below 
conflict with section 110 and part D of the Act and prevent full 
approval of the SIP revision.
    1. The following terms should be defined: Brackish water, paved 
roads used for industrial activity, Dust Control Plan, industrial 
fugitive dust sources, industrial fugitive dust sources, and exterior 
transfer lines.
    2. Sections C.2.(a)(i), C.2.(b)(i), C.2(d)(i), C.4(d)(i) state that 
weekly brackish water treatments or biweekly sweeping and collection 
are presumed to be sufficient for meeting the required Road Surface 
Silt Loading standard. However, compliance with the rule's silt loading 
standard needs to be confirmed by observations using the appropriate 
test method.
    3. At Section C.4.(b), there is a requirement to permanently 
eliminate 2,750 square feet of bulk material storage piles that were 
exposed during 1990; however, it is unclear how this provision can be 
enforced effectively given the lack of specificity within the rule 
concerning these storage piles.
    4. Section C.5 does not provide a date certain by which the BLM and 
the District jointly prepare a dust control plan that reduces BLM PM-10 
emissions by at least 20 percent relative to 1990 levels.
    5. The exemption for agricultural operations at Section D(1)(a) 
should be removed.
    6. In Section F.1(c), the rule should state explicitly what the 
freeboard requirements are instead of incorporating the California 
Vehicle Code by reference. Also, these requirements should be 
incorporated within the appropriate paragraph in Section C.

D. EPA Recommendations To Further Improve the Rules

    We have no additional recommendations.

E. Proposed Action and Public Comment

    As authorized in sections 110(k)(3) of the Act, we are proposing a 
disapproval of the submitted GBUAPCD Rule 401. If finalized, this 
action would retain the existing 1977 SIP rule in the SIP and 
sanctions, pursuant to section 179 of the Act, would not be imposed 
because Rule 401 is not a required CAA submittal. Note that the 
submitted rule has been adopted by the GBUAPCD, and EPA's final 
disapproval would not prevent the local agency from enforcing it. Our 
disapproval sets aside incorporation of the submitted rule within the 
SIP.
    EPA is proposing a limited approval of KCAPCD Rule 402 to improve 
the SIP, as authorized in sections 110(k)(3) and 301(a) of the Act. If 
finalized, this action would incorporate the submitted Rule 402 into 
the SIP, including those provisions identified as deficient. This 
approval is limited because EPA is simultaneously proposing a limited 
disapproval of the rule under section 110(k)(3). If this disapproval is 
finalized, sanctions will not be imposed under section 179 of the Act, 
because Rule 402 is not a required submittal under the CAA and is not 
an essential RACM under the Indian Wells Maintenance Plan. Note that 
the submitted rule has been adopted by the KCAPCD, and EPA's final 
limited disapproval would not prevent the local agency from enforcing 
it.
    EPA is proposing a limited approval of MDAQMD Rule 403.1 to improve 
the SIP, as authorized in sections 110(k)(3) and 301(a) of the Act. If 
finalized, this action would incorporate the submitted Rule 403.1 into 
the SIP, including those provisions identified as deficient. This 
approval is limited because EPA is simultaneously proposing a limited 
disapproval of the rule under section 110(k)(3). If this disapproval is 
finalized, sanctions will not be imposed under section 179 of the Act, 
because Rule 403.1 is not an essential RACM given the ongoing clean 
data observed in the Trona subregion since 1992. Note that the 
submitted rule has been adopted by the MDAQMD, and EPA's final limited 
disapproval would not prevent the local agency from enforcing it.
    We will accept comments from the public on the proposed disapproval 
of GBUAPCD Rule 401 and the proposed limited approvals and limited 
disapprovals of KCAPCD Rule 402 and MDAQMD Rule 403.1 for the next 30 
days.

III. 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 action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Burden is defined at 5 CFR 1320.3(b).

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 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 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 approval action proposed 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 proposes to 
approve pre-existing

[[Page 68373]]

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 proposed 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.
    EPA specifically solicits additional comment on this proposed rule 
from tribal officials.

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

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
rule is not subject to Executive Order 13045, because it approves a 
state rule implementing a Federal standard.

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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Nitrogen dioxide, Particulate matter, Reporting and 
recordkeeping requirements.

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

    Dated: October 20, 2008.
Laura Yoshii,
Acting Regional Administrator, Region IX.
[FR Doc. E8-27301 Filed 11-17-08; 8:45 am]
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