[Federal Register Volume 74, Number 157 (Monday, August 17, 2009)]
[Proposed Rules]
[Pages 41357-41359]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-19651]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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 

  Federal Register / Vol. 74, No. 157 / Monday, August 17, 2009 / 
Proposed Rules  

[[Page 41357]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2009-0521; FRL-8946-1]


Revisions to the Arizona State Implementation Plan; Pinal County

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: EPA is proposing to approve revisions to the Pinal County 
portion of the Arizona State Implementation Plan (SIP). These revisions 
concern particulate matter (PM) emissions from construction, 
earthmoving, and related activities, and commercial and residential 
unpaved parking lots. We are approving 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 16, 2009.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2009-0521, by one of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line 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 http://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 http://www.regulations.gov or e-mail. http://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 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: Jerald S. 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. EPA recommendations to further improve the rules
    D. Public Comment and Final Action
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 Pinal County and submitted by the Arizona 
Department of Environmental Quality.

                                            Table 1--Submitted Rules
----------------------------------------------------------------------------------------------------------------
                                       Rule                Rule title               Adopted        Submitted
----------------------------------------------------------------------------------------------------------------
Pinal County.........................      2-8-302  Performance Standards--             01/07/09        06/12/09
                                                     Hayden PM10 Non-attainment
                                                     Area.
                                           4-2-020  Fugitive Dust--General......        12/04/02        06/12/09
                                           4-2-030  Fugitive Dust--Definitions..        12/04/02        06/12/09
                                               4-4  PM-10 Non-attainment Area           06/03/09        06/12/09
                                                     Rules; Dustproofing and
                                                     Stabilization for
                                                     Commercial Unpaved Parking,
                                                     Drive and Working Yards.
                                               4-5  PM-10 Non-attainment Area           06/03/09        06/12/09
                                                     Rules; Stabilization for
                                                     Residential Parking and
                                                     Drives.
                                               4-7  Construction Sites in Non-          06/03/09        06/12/09
                                                     Attainment Areas--Fugitive
                                                     Dust.
                                               4-9  Test Methods................        06/03/09        06/12/09
----------------------------------------------------------------------------------------------------------------

    On July 15, 2009, EPA found these rule submittals were complete 
according to completeness criteria in 40 CFR Part 51 Appendix V. These 
criteria must be met before formal EPA review can begin.

B. Are there other versions of these rules?

    There are no previous versions of these rules in the SIP.

[[Page 41358]]

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. Each of the submitted rules are discussed below.
    Rules 4-2-020 and 4-2-030 are sections of Pinal County Code Chapter 
4, Article 2--Fugitive Dust providing a general statement of article 
applicability within Section 020 and a set of definitions for the 
article within Section 030.
    Rule 2-8-302 is a rule designed to limit the emissions of fugitive 
dust or particulate matter from construction, roadway building, use and 
maintenance, and bulk material handling, storage, and transport by 
subjecting these activities to a twenty percent opacity restriction.
    Rule 4-4 is a rule designed to limit the emissions of fugitive dust 
or particulate matter from commercially operated unpaved parking lots, 
drive ways, and working yards. Rule 4-4 provisions include a 20% 
opacity and 0% visible emissions property line standard, silt content 
and silt loading stabilization standards and requirements for clean-up 
of material track-out onto paved public roads. The rule also includes 
requirements for recordkeeping of dust stabilization efforts.
    Rule 4-5 is a rule designed to limit the emissions of fugitive dust 
or particulate matter from residential unpaved parking lots and drive 
ways. Rule 4-5 provisions include surface stabilization requirements 
and control measures and requirements for clean-up of material track-
out onto paved public roads.
    Rule 4-7 is a rule designed to limit the emissions of fugitive dust 
or particulate matter from development activity related to earthmoving 
and construction sites such as bulk material hauling, unpaved parking 
lots, vehicle track-out, and disturbed soil in open areas. Rule 4-7 
provisions include a twenty percent opacity and zero percent visible 
emissions property line standard, requirements to implement Best 
Available Control Measures (BACM) for material track-out onto paved 
public roads, bulk material handling and movement, unpaved roadways and 
unpaved parking areas on a site. The rule also includes provisions for 
a dust control permit program, dust control plan requirements, and 
related recordkeeping requirements.
    Rule 4-9 contains the test methods for determining compliance with 
the opacity and soil stabilization requirements of Rules 4-7, 4-4, and 
4-5.
    Rules 4-7, 4-4, and 4-5 apply to the Apache Junction portion of 
Pinal County within the Phoenix PM Nonattainment Area (NAA), referred 
to in the rule as T1N R8E (Township 1 North, Range 8 East). The rules 
do not apply to the remaining portion of Pinal County. These rules are 
part of the Pinal County contribution to the Phoenix serious area PM-10 
attainment plan control strategy.
    Rule 2-8-302 applies to the Hayden planning area PM-10 non-
attainment area portion of Pinal County defined in 40 CFR 81.303 (See 
also 72 FR 14422, March 28, 2007). It is neither applicable to the 
Apache Junction serious PM-10 non-attainment area, nor the remainder of 
Pinal County.
    EPA's technical support document (TSD) has more information about 
these rules.

II. 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). 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)). As mentioned earlier, Pinal County regulates 
two PM nonattainment areas: The Hayden Area, classified as moderate; 
and, the Apache Junction area, classified as serious (see 40 CFR part 
81). Consequently, Rule 2-8-302 must implement RACM, while Rules 4-7, 
4-4, and 4-5 must implement BACM.
    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?

    We believe these rules are consistent with the relevant policy and 
guidance regarding enforceability, RACM, BACM, and SIP relaxations.
    On August 1, 2007, EPA gave a limited approval and limited 
disapproval to rules amending the SIP for Pinal County (see 72 Federal 
Register (FR) 41896). For further discussion, please see our October 
17, 2006 proposal of this action at 71 FR 60934. In this rulemaking, we 
identified the deficiencies listed below.
    (1) As written, Rule 4-2-020, Section B effectively exempts 
agricultural activities from the fugitive dust rules without 
justification.
    (2) Rule 4-2-030, Definition 3, defines ``reasonable precaution'' 
in highly general terms. The term ``reasonable precaution'' is then 
used in every section of Rule 4-2-040, to define what actions must be 
taken to mitigate fugitive dust emissions from relevant activities. 
This general requirement is not sufficiently clear or enforceable.
    (3) Rule 4-2-050 does not contain recordkeeping provisions. The 
absence of recordkeeping provisions makes the all of the submitted 
rules difficult to enforce.
    Our final action on August 1, 2007 started sanctions clocks as 
required by Section 179 of the CAA. The first sanctions clock expired 
on March 1, 2009 and the offset sanctions have been in effect.
    Pinal County's submittal of 4-2-020 and 4-2-030 is intended to 
address and

[[Page 41359]]

correct the exemption of agricultural activities from fugitive dust 
rules. In these submittals, the exemption for agricultural activities 
at subsection 4-2-020.B, along with the definition of ``normal farm 
cultural practice'' at subsection 4-2-030.2, were deleted; thus, 
correcting this deficiency. After the 12/02/02 adoption of this 
amendment, the Pinal County Governing Board amended its list of SIP 
measures (Chapter 1, Article 1, Section 105--SIP List) on 01/07/09 to 
reflect its 12/02/02 action and has submitted this list to EPA.
    Pinal County's submittal of Rules 2-8-302, 4-4, 4-5, 4-7, and 4-9 
is intended to address and correct the Rule 4-2-030 ``reasonable 
precautions'' and Rule 4-2-050 recordkeeping deficiencies in our 
limited disapproval.
    Should EPA complete a final approval action on the submitted rules, 
we will find that Pinal County has corrected the deficiencies described 
above. Consequently, sanctions will be terminated and our Federal 
Implementation Plan (FIP) obligation will be removed.
    Today, we are also publishing an interim final determination with 
this proposal that will stay sanctions during the public comment period 
and while we review any public comments we may receive.
    The TSDs have more information on our evaluation. Because 
correcting the 4-2-020 and 4-2-030 deficiencies only involved removing 
the agricultural activities exemption, we have not provided a TSD 
discussing this amendment to Rules 4-2-020 and 4-2-030.

C. EPA Recommendations To Further Improve the Rules

    The TSD for Rule 4-7 describes additional rule revisions that do 
not affect EPA's current action but are recommended for the next time 
Pinal County modifies Rule 4-7 and 4-9. Rule 4-9 contains an editorial 
error that should be corrected as soon as practicable.

D. Public Comment and Final Action

    Because EPA believes the submitted rules fulfill all relevant 
requirements, we are proposing to fully approve them as described in 
section 110(k)(3) of the Act. We will accept comments from the public 
on this proposal for the next 30 days. 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 and remove all sanctions and FIP obligations associated 
with our August 1, 2007 limited disapproval.

III. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve State 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves State law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by State law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the State, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

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: July 31, 2009.
Laura Yoshii,
Acting Regional Administrator, Region IX.
[FR Doc. E9-19651 Filed 8-14-09; 8:45 am]
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