[Federal Register Volume 74, Number 155 (Thursday, August 13, 2009)]
[Rules and Regulations]
[Pages 40750-40753]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-19338]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2008-0566; FRL-8939-2]


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: Final rule.

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SUMMARY: EPA is finalizing the following actions: A disapproval of 
revisions to the Great Basin Unified Air Pollution Control District 
(GBUAPCD) portion of the California State Implementation Plan (SIP); a 
limited approval and limited disapproval of revisions to the Kern 
County Air Pollution Control District (KCAPCD) SIP; and, a limited 
approval and limited disapproval of revisions to the Mohave Desert Air 
Quality Management District (MDAQMD) SIP. These revisions concern 
particulate matter (PM) emissions from fugitive dust sources. This 
action was proposed in the Federal Register on November 18, 2008. Under 
authority of the Clean Air Act as amended in 1990 (CAA or the Act), 
this action directs California to correct rule deficiencies in GBUAPCD 
Rule 401; and, this action simultaneously approves KCAPCD Rule 402 and 
MDAQMD Rule 403.1 and directs California to correct the deficiencies 
within these rules.

DATES: Effective Date: This rule is effective on September 14, 2009.

ADDRESSES: EPA has established docket number EPA-R09-OAR-2008-0566 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: 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. Proposed Action
II. Public Comments and EPA Responses
III. EPA Action
IV. Statutory and Executive Order Reviews

I. Proposed Action

    On November 18, 2008 (73 FR 68369), EPA proposed to disapprove 
GBUAPCD Rule 401. In this same action, EPA proposed a limited approval 
and limited disapproval of KCAPCD Rule 402 and MDAQMD Rule 403.1. Table 
1 lists the rules that California submitted for incorporation within 
the SIP.

                                            Table 1--Submitted Rules
----------------------------------------------------------------------------------------------------------------
             Local agency               Rule          Rule title             Adopted        Submitted
----------------------------------------------------------------------------------------------------------------
GBUAPCD..............................            401    Fugitive Dust...........        12/04/06        05/08/07
KCAPCD...............................            402    Fugitive Dust...........        11/03/04        01/13/05
MDAQMD...............................            403.1  Fugitive Dust Control...        11/25/96        03/03/97
----------------------------------------------------------------------------------------------------------------

    We proposed to disapprove GBUAPCD Rule 401 because some provisions 
do not satisfy the requirements of section 110 and part D of the Act. 
These provisions are discussed below.
    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.
    We proposed a limited approval of KCAPCD Rule 402 and MDAPCD Rule 
403.1 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.

[[Page 40751]]

    Regarding 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 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.
    Our proposed action contains more information on the basis for this 
rulemaking and on our evaluation of these rules.

II. Public Comments and EPA Responses

    EPA's proposed action provided a 30-day public comment period. 
During this period, we received no comments on our proposed actions on 
these rules. This comment period closed December 18, 2008.

III. EPA Action

    No comments were submitted sufficient to change our assessment of 
these 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 disapproval of GBUAPCD Rule 401; this action will not 
incorporate GBUAPCD Rule 401 into the SIP. Also, as authorized in 
sections 110(k)(3) and 301(a) of the Act, we are finalizing a limited 
approval and a limited disapproval of KCAPCD Rule 402 and MDAQMD Rule 
403.1; these rules will be incorporated within the SIP, including those 
provisions identified as deficient.
    In finalizing a disapproval of GBUAPCD Rule 401, our action will 
not incorporate submitted GBUAPCD Rule 401 into the SIP, instead, it 
will retain 1977 adopted rule within the SIP. We will not impose 
sanctions, pursuant to section 179 of the Act, 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 does not prevent the local 
agency from enforcing it.
    With KCAPCD Rule 402, we will not impose sanctions under section 
179 of the Act, because Rule 402 is not a required submittal under the 
CAA and is not an essential Reasonably Available Control Measure (RACM) 
under the Indian Wells Maintenance Plan. The submitted rule has been 
adopted by the KCAPCD, and EPA's final limited disapproval does not 
prevent the local agency from enforcing it.
    Regarding Rule 403.1, we will not impose sanctions 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. The 
submitted rule has been adopted by the MDAQMD, and EPA's final limited 
disapproval does not prevent the local agency from enforcing it.

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 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.

[[Page 40752]]

    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 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

    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.

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 September 14, 2009.

[[Page 40753]]

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 13, 2009. 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. Parties with objections to this direct final rule are 
encouraged to file a comment in response to the parallel notice of 
proposed rulemaking for this action published in the proposed rules 
section of today's Federal Register, rather than file an immediate 
petition for judicial review of this direct final rule, so that EPA can 
withdraw this direct final rule and address the comment in the proposed 
rulemaking. 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: May 12, 2009.
Laura Yoshii,
Acting 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 F--California

0
2. Section 52.220 is amended by adding paragraphs (c) (244)(i)(C)(2), 
(335)(i)(E), and (350)(i)(A)(2) to read as follows:


Sec.  52.220  Identification of plan.

* * * * *
    (c) * * *
    (244) * * *
    (i) * * *
    (C) * * *
    (2) Rule 403.1, ``Fugitive Dust Control for the Searles Valley 
Planning Area'', adopted on June 22, 1994 and amended on November 25, 
1996.
* * * * *
    (335) * * *
    (i) * * *
    (E) Kern County Air Pollution Control District
    (1) Rule 402, ``Fugitive Dust'', adopted on November 29, 1993 and 
amended on November 3, 2004.
* * * * *
    (350) * * *
    (i) * * *
    (A) * * *
    (2) Rule 401, ``Fugitive Dust'', adopted on September 5, 1974 and 
amended on December 04, 2006.
* * * * *
[FR Doc. E9-19338 Filed 8-12-09; 8:45 am]
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