[Federal Register Volume 78, Number 77 (Monday, April 22, 2013)]
[Rules and Regulations]
[Pages 23677-23683]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-09307]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2012-0960; FRL-9799-3]


Revisions to the California State Implementation Plan, Imperial 
County Air Pollution Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

SUMMARY: EPA is finalizing approval of revisions to the Imperial County 
Air Pollution Control District (ICAPCD) portion of the California State 
Implementation Plan (SIP). This action was proposed in the Federal 
Register on January 7, 2013 and concerns local rules that regulate 
inhalable particulate matter (PM) emissions from sources of fugitive 
dust such as unpaved roads and disturbed soils in open and agricultural 
areas in Imperial County. We are approving local rules that regulate 
these emission sources under the Clean Air Act (CAA or the Act).

DATES: This rule will be effective on May 22, 2013.

ADDRESSES: EPA has established docket number EPA-R09-OAR-2012-0960 for 
this action. Generally, documents in the docket for this action are 
available electronically at http://www.regulations.gov or in hard copy 
at EPA Region IX, 75 Hawthorne Street, San Francisco, California 94105-
3901. While all documents in the docket are listed at http://www.regulations.gov, some information may be publicly available only at 
the hard copy location (e.g., copyrighted material, large maps, multi-
volume reports), and some may not be available in either location 
(e.g., confidential business information (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: Christine Vineyard, EPA Region IX, 
(415) 947-4125, [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 January 7, 2013 (78 FR 922), EPA proposed to approve the 
following rules into the California SIP.

----------------------------------------------------------------------------------------------------------------
          Local agency              Rule No.                Rule title                Adopted        Submitted
----------------------------------------------------------------------------------------------------------------
ICAPCD.........................             800  General Requirements for               10/16/12        11/07/12
                                                  Control of Final Particulate
                                                  Matter (PM10).
ICAPCD.........................             804  Open Areas.....................        10/16/12        11/07/12
ICAPCD.........................             805  Paved and Unpaved Roads........        10/16/12        11/07/12
ICAPCD.........................             806  Conservation Management                10/16/12        11/07/12
                                                  Practices (CMPs).
----------------------------------------------------------------------------------------------------------------


[[Page 23678]]

    We proposed to approve these rules because we determined that they 
complied with the relevant CAA requirements. Our proposed action 
contains more information on the rules and our evaluation.

II. Public Comments and EPA Responses

    EPA's proposed action provided a 30-day public comment period. 
During this period, we received from the following parties:
    1. Luis Olmedo, Comite Civico Del Valle (Comite), letter dated 
September 20, 2012 (resubmitted via email January 3, 2013).
    2. Lisa Belenky, Center for Biological Diversity (CBD), letter 
dated September 20, 2012 (resubmitted via email February 6, 2013).
    3. Eric Massey, Arizona Department of Environmental Quality (ADEQ), 
letter dated February 6, 2013.
    Comment #1--Comite claims that ICAPCD Rule 800 does not meet Best 
Available Control Measure (BACM) requirements because it does not 
address recreational off-highway vehicle (OHV) use on private land. The 
comment mentions OHV requirements in Arizona and Nevada that apply on 
both public and private land. The comment acknowledges that Rule 804 
would regulate OHV use on private land, but asserts that it is not 
enforceable because it does not require dust control plans (DCPs).
    Response #1--The private land OHV restrictions in ICAPCD Rule 804 
are more stringent than the public land OHV restrictions in Rule 800. 
Rule 804 Section E.1 requires all persons with jurisdiction over even 
relatively small open areas to maintain a stabilized surface at all 
times and limit visible dust emissions (VDE) to 20% opacity. This 
effectively prohibits OHV activity on private land because significant 
OHV activity on a dirt lot would generally lead to unstabilized 
surfaces and over 20% opacity. Additionally, Rule 804 Section E.2 
requires private land owners to prevent illegal OHV activity by posting 
signs or installing physical barriers.
    Comment #2--Comite claims that ICAPCD has not, as directed in EPA's 
limited disapproval, evaluated ``the feasibility and impacts of 
additional restrictions in recreational OHV areas, such as closing some 
of the 250 square miles that are open to OHV use * * *.''
    Response #2--Such evaluation was performed and included in APCD's 
submittal of the Regulation VIII SIP revisions.\1\ Sections 3 and 4 of 
this evaluation list and analyze the feasibility and impacts of 
additional OHV restrictions including restrictions on OHV locations. 
Regarding the potential to close some of the 250 square miles, for 
example, section 4.1 states that, ``BLM and State Parks officials 
believe that further limiting the size of OHV areas would have the 
effect of increasing illegal OHV activity on non-travelled lands.''
---------------------------------------------------------------------------

    \1\ ``Off-Highway Vehicle Area Best Available Control Measures 
Assessment,'' prepared for ICAPCD by Environ International 
Corporation, October 2012 (2012 BACM assessment).
---------------------------------------------------------------------------

    Comment #3--Comite states that ICAPCD Rule 802 does not fulfill 
BACM requirements because it inappropriately exempts transportation/
hauling of bulk material within a facility's property, eviscerating the 
intent of Rule 802. The comment notes that South Coast Air Quality 
Management District (SCAQMD) Rule 403(g) does not include this 
exemption.
    Response #3--We agree that Imperial Rule 802 would be improved by 
removing the exemption for transportation/hauling of bulk material 
within a facility's property similar to SCAQMD 403(g). However, bulk 
material, the subject of Imperial Rule 802, has not been identified as 
a significant PM10 source subject to BACM requirements.\2\ 
As a result, ICAPCD is not required to improve Rule 802 in this way at 
this time, ICAPCD did not revise and resubmit Rule 802, and EPA is not 
acting on Rule 802 at this time.
---------------------------------------------------------------------------

    \2\ See, e.g., 75 FR 8010 (February 23, 2010).
---------------------------------------------------------------------------

    Comment #4--Comite states that ICAPCD Rule 803 does not fulfill 
BACM requirements because it inappropriately exempts agricultural roads 
from track-out requirements unlike other areas in California including 
San Joaquin Valley Air Pollution Control District (SJVAPCD).
    Response #4--The comment does not identify and we are not aware of 
any specific SJVAPCD track-out requirements that are more stringent 
than ICAPCD requirements. SJVAPCD's general carryout and track-out rule 
specifically exempts agricultural operations.\3\ SJVAPCD's agricultural 
dust rule simply requires that agricultural roads comply with 
California State law regarding track-out,\4\ to which Imperial County 
sources are also subject. In addition, ICAPCD Rule 806 includes track-
out BACM for agricultural operations comparable to those in SJVAPCD's 
analogous conservation management practices (CMP) requirements.\5\
---------------------------------------------------------------------------

    \3\ ``Carryout and Trackout,'' SJVAPCD Rule 8041, Section 4.0, 
adopted August 19, 2004.
    \4\ ``Agricultural Sources,'' SJVAPCD Rule 8081, Section 5.4, 
adopted September 16, 2004.
    \5\ ``List of Conservation Management Practices,'' May 20, 2004, 
referenced by ``Conservation Management Practices,'' SJVAPCD Rule 
4550, adopted August 19, 2004.
---------------------------------------------------------------------------

    Comment #5--Comite states that ICAPCD Rule 804 does not fulfill 
BACM requirements because it imposes minimal controls on disturbed open 
lots above certain sizes with no regard as to what activities, beyond 
OHV, are occurring. The comment claims that SCAQMD Rule 403, in 
contrast, controls lots of any size with disturbed surface area and 
contains additional control, permitting and reporting requirements on 
other types of activities, including construction and confined animal 
facilities (CAF).
    Response #5--ICAPCD estimates that over 99.5% of open areas 
potentially affected by ICAPCD Rule 804 are in parcels of 3 acres or 
greater.\6\ We expect, therefore, that lowering this threshold would 
have very limited emission impact while being relatively expensive by 
applying to the smallest sources. ICAPCD also notes that SJVAPCD Rule 
8051 has a similar 3 acre threshold previously approved as BACM and 
projected to capture 98% of parcel acreage in SJVAPCD.\7\ ICAPCD Rule 
804 contains relatively stringent enforceable requirements common to 
other approved dust regulations found elsewhere (e.g., SJVAPCD 8051). 
Sources must maintain records demonstrating that they have limited 
opacity to 20% by one of three defined soil stabilization techniques. 
The comment notes that SCAQMD Rule 403 imposes additional requirements 
on other activities, including construction and CAFs. However, ICAPCD 
provides additional requirements for these activities in other 
regulations (ICAPCD Rule 801, Construction and Earthmoving Activities, 
and Rule 217, Large Confined Animal Facilities Permits Required) which 
are not subject of today's action. In addition, neither construction 
nor CAFs have been identified as significant PM10 sources 
subject to BACM requirements.\8\ As a result, ICAPCD is not required to 
apply BACM to these sources at this time and EPA is not acting on 
ICAPCD Rules 217 or 801. However, we agree that SCAQMD Rule 403 does 
impose some additional specific requirements that

[[Page 23679]]

ICAPCD should consider if additional emission reductions are needed in 
the future. We also note that ICAPCD previously considered additional 
specificity such as that included in SCAQMD Rule 403, but determined it 
was not more stringent than ICAPCD Regulation VIII.\9\
---------------------------------------------------------------------------

    \6\ ``Draft Final Technical Memorandum, Regulation VIII BACM 
Analysis,'' Prepared for ICAPCD by Environ International Corp, 
October 2005 (2005 BACM Analysis), Appendix C, pg. C-19.
    \7\ Ibid.
    \8\ See, e.g., 75 FR 8010 (February 23, 2010).
    \9\ 2005 BACM analysis, appendix B, pg. B-6.
---------------------------------------------------------------------------

    Comment #6--Comite asserts that ICAPCD Rule 805 does not fulfill 
BACM requirements because it inappropriately exempts agricultural 
roads, and regulates them under less stringent requirements in ICAPCD 
Rule 806. This exemption is contrary to EPA's earlier recommendations 
that, ``ICAPCD must remove the exemption in Rule 805 Section D.2 or 
demonstrate how BACM is met in Imperial County for farm roads and 
traffic areas that are subject to less stringent requirements than 
other roads and traffic areas in the County and farm roads and traffic 
areas in other areas.'' The comment mentions, in contrast, SJVAPCD 
requirements.
    Response #6--The comment is correct that EPA previously identified 
the exemption in ICAPCD Rule 805 Section D.2 as a rule deficiency, and 
ICAPCD has not removed this exemption from Rule 805.\10\ However, 
ICAPCD has addressed the substance of this deficiency by establishing 
appropriate opacity limits and stabilization requirements for 
agricultural roads, in addition to CMP requirements, in Rule 806, 
particularly in Sections E.3 and E.4. These requirements are analogous 
to, and more stringent than,\11\ analogous requirements in SJVAPCD. See 
also Response 11 below.
---------------------------------------------------------------------------

    \10\ 75 FR 39367 (July 8, 2010).
    \11\ SJVAPCD Rule 4550 requires opacity limits and stabilization 
on unpaved roads when daily vehicle trips (VDT) are 75 or more or 25 
VDT for 3-axle vehicles, whereas ICAPCD Rule 806 contains these 
requirements for 50 or more VDT or 20 VDT for 3-axle vehicles.
---------------------------------------------------------------------------

    Comment #7--Comite states that ICAPCD Rule 805 Section E.7 does not 
fulfill BACM requirements because it fails to enforceably require 
compliance with road paving requirements. The comment states that this 
lack of enforceability is a particular concern because EPA has stated 
that Imperial County must expedite these road paving requirements or, 
``demonstrate good faith efforts to increase funding and priority of 
road stabilization projects consistent with national guidance.''
    Response #7--EPA previously identified ICAPCD Rule 805 Section E.7 
as deficient because it was not clear that the County was required to 
implement (and not just submit) a stabilization plan; stabilize 
different unpaved roads each year; and maintain all stabilized 
roads.\12\ Adopted and submitted revisions to ICAPCD Rule 805 Sections 
E.7.b and c explicitly and adequately address these concerns. For 
example, Section E.7.b was revised to explicitly require plan 
compliance. In addition, ICAPCD adequately demonstrated ``good faith 
efforts to increase funding and priority of road stabilization 
projects,'' by correspondence from the County Public Works Department 
explaining budget efforts \13\ along with information provided in 
ICAPCD's 2009 PM10 SIP.\14\ We assume this addresses the 
concerns of the comment as we are not aware of any other enforcement 
concerns with Rule 805 Section E.7.
---------------------------------------------------------------------------

    \12\ Ibid.
    \13\ Letter from William Brunet (Imperial County Department of 
Public Works) to Brad Poiriez (ICAPCD), May 11, 2012, included as 
part of comment 4 in CARB's 2012 Regulation VIII SIP 
submittal to EPA.
    \14\ ``2009 Imperial County State Implementation Plan for 
Particulate Matter Less Than 10 Microns in Aerodynamic Diameter, 
Final,'' adopted by ICAPCD Governing Board on August 11, 2009, e.g., 
section 4.2.5, pg. 4-7.
---------------------------------------------------------------------------

    Comment #8--Comite asserts that ICAPCD Rule 805 does not fulfill 
BACM requirements because it does not impose sufficiently stringent 
control measures. Specifically, the comment notes that while SCAQMD 
Rule 403 and Imperial Rule 805 Section E both impose controls based on 
the type of road, SCAQMD Rule 403 also requires additional measures for 
roads used for construction activity or large operations.
    Response #8--SCAQMD Rule 403 contains few requirements specific to 
roads used at construction activity or large operations and it is not 
clear which requirements are subject of this comment. We note the 
following specific requirements in Rule 403 Table 1 regarding 
construction: Section 15-1, stabilize all off-road traffic and parking 
areas; section 15-2, stabilize all haul routes; and section 15-3, 
direct construction traffic over established haul routes. Similarly we 
note in Rule 403 Table 2 regarding large operations: Section 4a, water 
all roads used for any vehicular traffic at least once per every two 
hours of active operations; or section 4b, water all roads used for any 
vehicular traffic once daily and restrict vehicle speeds to 15 miles 
per hour; or section 4c, apply a chemical stabilizer to all unpaved 
road surfaces in sufficient quantity and frequency to maintain a 
stabilized surface. We do not see a direct analog to section 15-3 in 
ICAPCD Rules 801 or 805, although we would not expect significant 
emission impacts partly because construction sites are incentivized to 
minimize the active roads requiring stabilization. The comment has not 
provided and we have no evidence that the other SCAQMD requirements 
listed above are more stringent than the road stabilization 
requirements in ICAPCD Rules 801 and 805. We also note that 
construction has not been identified as a significant PM10 
source subject to BACM requirements in ICAPCD.\15\ As a result, ICAPCD 
is not required to submit Rule 801 at this time and EPA is not acting 
on Rule 801 in this action.
---------------------------------------------------------------------------

    \15\ See, e.g., 75 FR 8010 (February 23, 2010).
---------------------------------------------------------------------------

    Comment #9--Comite states that ICAPCD Rule 806 does not fulfill 
BACM requirements and is rendered unenforceable because it lacks a CMP 
application submittal and review process, and requires only that 
agricultural operators maintain a CMP plan and records to confirm 
implementation. The comment asserts (and references Latino Issues Forum 
v. EPA and EPA's 2010 action on Rule 806 for this assertion) that BACM 
requires that Rule 806 maintain an application submittal and review 
process such as contained in SJVAPCD Rule 4550 and Great Basin Unified 
Air Pollution Control District (GBUAPCD) Rule 502.
    Response #9--EPA's 2010 limited approval/disapproval of Regulation 
VIII notes that the CMPs, ``are broadly defined and there is no other 
mechanism in the rule to ensure specificity.'' \16\ As suggested here 
and made clearer in EPA's TSD supporting our 2010 proposed action,\17\ 
the deficiency in the rule is the lack of specificity in defining the 
CMPs. The most direct way to address this is to more specifically 
define the CMPs. Alternatively, this deficiency could be addressed by 
adding a CMP application submittal and approval process, such as 
contained in SJVAPCD Rule 4550.\18\ ICAPCD has selected the former 
approach in revising ICAPCD Rule 806, and has adequately addressed this 
rule deficiency by extensively clarifying and strengthening numerous 
CMP definitions and related text in Rule 806. In doing so, ICAPCD has 
incorporated sufficient clarity and specificity directly into the CMP 
definitions and requirements so that CMP implementation and 
enforceability at a BACM level is clear to all parties. For example, 
the definition of mulching in Rule 806 Section C.30 was revised from: 
``Applying or leaving plant residue or

[[Page 23680]]

other material to soil surface. It reduces entrainment of PM due to 
winds as well as reduces weed competition thereby reducing tillage 
passes and compaction.'' The new text reads: ``Reducing PM10 
emissions and wind erosion and preserving soil moisture by uniformly 
applying a protective layer of plant residue or other material to a 
soil surface prior to disturbing the site to reduce soil movement. 
Mulching material shall be evenly applied, and if necessary, anchored 
to the soil. Mulch should achieve a minimum 70% cover, and a minimum of 
2 inch height above the surface. Inorganic material used for mulching 
should consist of pieces of .75 to 2 inches in diameter.'' \19\
---------------------------------------------------------------------------

    \16\ 75 FR 39367 (July 8, 2010).
    \17\ ``Technical Support Document for EPA's Proposed Rulemaking 
on Revisions to the California State Implementation Plan as 
submitted by the State of California, for the Imperial County Air 
Pollution Control District,'' U.S. EPA, Region 9 Air Division, 
February 2010, (2010 TSD) pg. 9.
    \18\ See Latino Issues Forum v. EPA, 558 F.3d 936, 949 (9th Cir. 
2009).
    \19\ ``Technical Support Document for EPA's Notice of Proposed 
Rulemaking on Revisions to the California State Implementation Plan 
as submitted by the State of California, for the Imperial County Air 
Pollution Control District,'' U.S. EPA, Region 9 Air Division, 
December 2012, (2012 TSD) pg. 8.
---------------------------------------------------------------------------

    Comment #10 (p.8)--Comite notes that ICAPCD Rule 806 only applies 
to farms above 40 acres, while SCAQMD and Maricopa's rules apply to 
farms above 10 acres, and Comite claims that ICAPCD's BACM analysis 
does not address whether lowering Rule 806's threshold could obtain 
further emission reductions that are significant and economically 
feasible.
    Response #10--It is standard practice for air pollution regulations 
to exempt small sources which contribute relatively few emissions and 
are the least cost-effective to control. ICAPCD's 2009 PM10 
SIP estimates that Rule 806's 40 acre threshold captures 97% of total 
emissions,\20\ suggesting that there are no further emission reductions 
that are significant and economically feasible. While SCAQMD and 
Maricopa have lower applicability thresholds than ICAPCD, rules 
approved as BACM in other areas have higher thresholds (e.g., SJVAPCD's 
is 100 acres). We also note that this threshold remains unchanged from 
the previous version of ICAPCD Rule 806, and no comments were provided 
when EPA acted on it in 2010.
---------------------------------------------------------------------------

    \20\ 2010 TSD, pg 12.
---------------------------------------------------------------------------

    Comment #11--Comite claims that ICAPCD Rule 806 imposes 
insufficient controls on unpaved farm roads compared to Rule 805 
requirements for Imperial non-farm roads and other area requirements 
for farm roads. As an example, the comment notes that SJVAPCD requires 
farm roads to meet control measures required for agricultural 
operations in addition to general requirements that apply to all other 
roads.
    Response #11--We agree that this was a deficiency of the previous 
version of ICAPCD Regulation VIII. However, ICAPCD has revised Rule 806 
Sections D.2, D.3, E.3 and E.4 to specifically and adequately address 
this issue. Revised Section E.3, for instance, now requires 
stabilization of agricultural unpaved roads with 50 or more vehicle 
daily trips (VDT), similar to that required of non-agricultural roads 
with 50 or more VDT in ICAPCD Rule 805 Section E.2., and of all unpaved 
roads with 75 or more VDT subject to SJVAPCD Rule 8081 Section 5.2. See 
also Response 6 above.
    Comment #12--Comite asserts that ICAPCD Rule 806's windblown dust 
controls are inadequate and generally describes the requirements in 
SCAQMD Rule 403's Agricultural Handbook. The comment states that SCAQMD 
requires cessation of soil preparation and maintenance activities when 
winds exceed 25 mph, as well as implementation of one of four specific 
practices to reduce windblown dust from actively disturbed fields and 
three of nine specific practices to reduce windblown dust from inactive 
(fallow) fields.
    Response #12--SCAQMD's Agricultural Handbook and Imperial Rule 806 
are structured somewhat differently, making a direct comparison between 
the two programs difficult.\21\ For example, SCAQMD does not 
specifically refer to the prohibition on tilling or mulching when wind 
speeds exceed 25 mph as a ``windblown dust control,'' whereas ICAPCD 
Rule 806 includes specific provisions, E.6.1 and 2, as ``windblown dust 
controls.'' Nevertheless, we note that the SCAQMD prohibition applies 
only when winds exceed 25 mph. In comparison, ICAPCD requires operators 
to comply with the windblown dust controls specified in E.6.1. (for 
active cultivation) and E.6.2. (for fallow fields), regardless of wind 
speed. The commenter provides no evidence for a finding that the SCAQMD 
prohibition is more effective than ICAPCD's more generally applicable 
requirements.
---------------------------------------------------------------------------

    \21\ We note that the commenter lists the general requirements 
in the SCAQMD rule but does not provide any comparison or analysis 
of the two programs.
---------------------------------------------------------------------------

    The comment also states that SCAQMD requires operators to comply 
with ``one of four specific practices to reduce windblown dust from 
actively disturbed fields.'' Again, because the SCAQMD rule does not 
specifically refer to ``windblown dust,'' it is difficult to determine 
whether SCAQMD distinguishes between regulating ``windblown dust'' and 
regulating fugitive dust directly emitted during tillage, cultivation, 
and mulching operations. Nevertheless, we note that the SCAQMD rule 
requires selection and implementation of one option for ``active 
lands,'' whereas ICAPCD regulates direct emissions of fugitive dust by 
requiring selection and implementation of three options, one each from 
three separate categories of activities: (1) Land preparation (E.1.); 
(2) harvest (E.2.); and (3) cropland-other (E.5.).
    For inactive operations, SCAQMD requires operators to select and 
comply with three of eight specified practices; we believe the 
comparable provisions for ICAPCD are found at section E.6.1. of Rule 
806, in which ICAPCD requires selection and compliance with one of 
eight specified practices. We note that the practices specified in the 
SCAQMD rule for inactive lands are essentially identical to the 
practices specified in E.6.2. of the ICAPCD rule for fallow lands.
    Although it appears that SCAQMD requires more measures for inactive 
lands than ICAPCD requires for fallow lands, the commenter does not 
acknowledge other ways in which the ICAPCD rule is more stringent than 
the SCAQMD program. Overall, both the SCAQMD and ICAPCD programs 
require agricultural operations to comply with five options each: 
SCAQMD requires compliance with the 25 mph prohibition, one option for 
active cultivation and three options for inactive lands; ICAPCD 
requires selection and implementation of one option to control 
windblown dust on actively cultivated lands, three additional options 
for actively cultivated lands, and one option for fallow lands. The 
commenter provided no information to support a finding that SCAQMD's 
approach of imposing more requirements on inactive lands is more 
stringent or more effective at controlling fugitive dust than ICAPCD's 
approach of imposing more requirements on actively cultivated lands. As 
we have noted previously, regulations for agricultural sources must be 
sufficiently flexible to account for the wide range of factors such as 
crop type, herd size, equipment type, soil type, weather and market 
conditions, economic circumstances and facility size. In addition, 
there is a limited amount of technical information regarding the cost 
effectiveness of available control measures for agricultural 
operations. See 71 FR 7684 (February 14, 2006). As a result, it is 
reasonable to expect that BACM measures for this activity would vary 
depending on the agricultural practices in different areas and, in 
fact, Maricopa, South Coast, and San Joaquin agricultural CMP rules 
have all been

[[Page 23681]]

approved as BACM despite differences similar to that identified in the 
comment. Finally, we note that the Imperial Rule 806 is based on and is 
at least as stringent as SJVUAPCD Rule 4550, which EPA approved as 
having BACM-level controls. Id.
    Comment #13--Comite states that ICAPCD Rule 802 Section D.1 and 
Rule 806 Section D.4 provide ICAPCD with excessive discretion to alter 
SIP-approved control measures, particularly with regard to deviations 
from required control measures (Rule 802) and development of 
alternative control measures (Rule 806). The comment notes that EPA's 
2010 action on Regulation VIII specifically identified the discretion 
in Rule 802 Section D.1 as a deficiency.
    Response #13--We agree that Rule 802 Section D.1 would be improved 
by removing the discretion described in the comment. However, bulk 
material, the subject of Imperial Rule 802, has not been identified as 
a significant PM10 source subject to BACM requirements. As a 
result, ICAPCD is not required to improve Rule 802 in this way at this 
time, ICAPCD did not revise and resubmit Rule 802, and EPA is not 
acting on Rule 802 at this time. See also Response 3 above. 
With regard to the commenter's reference to Rule 806, Section D.4, we 
assume the comment intended to refer to Rule 806 Section D.6 which 
contains discretion. This discretion is similar to discretion approved 
in SJVAPCD Rule 4550 Section 6.2.3.2, and has been restricted by 
requiring alternative CMPs in ICAPCD to be at least equivalent to the 
most effective CMPs already available. While such discretion may not be 
appropriate for more traditional stationary sources, it is reasonable 
at this time given the variability and limited regulatory history of 
the affected sources.\22\ As ICAPCD gains experience regulating this 
industry, it may be appropriate to reduce this discretion in the 
future.
---------------------------------------------------------------------------

    \22\ See, e.g., 71 FR 7684 and 7686 (February 14, 2006).
---------------------------------------------------------------------------

    Comment #14--Comite asserts that EPA cannot stay CAA sanctions 
based on a proposed approval of revised Regulation VIII, but only upon 
final and full approval.
    Response #14--As explained in our Interim Final Rule, we invoked 
the good cause exception under the APA as the basis for not providing 
public comment before the action took effect.\23\ Our review of the 
State's submittal indicated that it was more likely than not that the 
State had submitted a revision to the SIP that addressed the issues we 
identified in our earlier action that started the sanctions clocks. We 
concluded that it was therefore not in the public interest to impose 
sanctions. Our use of the good cause exception thus relieved 
restrictions that were unnecessary because the State had already taken 
the steps it needed to take to submit an approvable rule. The only 
action that remained to be taken was EPA's action to complete our 
rulemaking, including reviewing and responding to public comments on 
our proposed action. As explained in our Interim Final Rule, we could 
have disapproved the rule, if justified by public comments. However, we 
are now finalizing our action with an approval of the State's 
submittal, which further supports the reasonableness of our use of the 
good cause exception to avoid needless hardship on entities and 
individuals in the Imperial Valley.
---------------------------------------------------------------------------

    \23\ 78 FR 894 (January 7, 2013).
---------------------------------------------------------------------------

    Comment #15--CBD claims that proposed rule revisions are inadequate 
to address the serious and ongoing PM10 air pollution 
concerns in Imperial County, particularly regarding emissions due to 
OHV use on public lands. The comment asks EPA to reject the rule 
revisions because they will not adequately improve air quality as 
required by law.
    Response #15--ICAPCD revised and resubmitted Regulation VIII 
primarily to address the CAA obligation for PM10 BACM, and 
EPA is similarly evaluating the rules primarily to ensure that they 
fulfill BACM. The broader air pollution issues raised by this comment, 
as to whether the rules are sufficient to address Imperial's overall 
PM10 problem, are appropriately addressed separately through 
the CAA obligations for ICAPCD and CARB to develop a PM10 
attainment demonstration.
    Comment #16--CBD states that the proposed rule revisions fail to 
provide sufficient guidance, limitations or enforcement measures to 
ensure that the OHV DCPs are adequate and fully implemented. The 
comment asserts that the revised rule relies on good faith 
implementation by the Bureau of Land Management (BLM) and California 
Department of Parks and Recreation (DPR), which is not warranted by 
past practice.
    Response #16--ICAPCD has significantly revised the OHV DCP 
requirements in ICAPCD Rule 800 Sections D.3 and F to make them more 
stringent and enforceable. For example, Section F.5.b.2 now requires 
maps showing OHV areas, Section F.5.c now explicitly requires 
stabilization of high-traffic roads and traffic areas during OHV 
events, Section F.5.d now requires description of all monitoring and 
corrective action to reduce emissions during OHV events, and Section 
F.7 establishes additional requirements for new OHV areas. While we 
agree that some of the OHV requirements are not as specific and 
prescriptive as many requirements for traditional stationary sources 
(e.g., facility X must emit under Y pounds/day), they are adequately 
enforceable and appropriate given the variability (e.g., the popularity 
and thus emissions of specific OHV areas change over time) and limited 
regulatory history of this activity. We also believe these controls are 
sufficiently stringent to fulfill the CAA BACM requirements as 
demonstrated by the 2012 BACM assessment. See also Response 2 
above. However, we encourage ICAPCD to consider further controls in OHV 
areas if additional emission reductions are needed in the future to 
meet federal and/or State ambient air quality standards.
    Comment #17--CBD states that BLM recently issued a proposed 
Recreational Area Management Plan (RAMP) and Final Environmental Impact 
Statement (FEIS) proposing to increase the area in Imperial open to OHV 
use by 40,000 acres, further increasing PM10 emissions. The 
comment notes that EPA had previously expressed concerns about 
potential increased air quality impacts of the BLM's preferred 
alternative in the FEIS and that BLM largely ignored EPA's comments. 
The comment asserts that additional shortcomings of the FEIS are 
further evidence that BLM cannot be relied on for good-faith efforts to 
comply with ICAPCD Rule 800.
    Response #17--EPA's previous comments regarding BLM's RAMP and FEIS 
are independent of today's action on revisions to ICAPCD's Regulation 
VIII. Revisions to Rule 800 Section F.7 establish additional 
requirements for new OHV areas, but do not prohibit increased OHV areas 
and associated PM10 emissions. ICAPCD Regulation VIII's OHV 
requirements are adequately enforceable and do not rely solely on good-
faith efforts at compliance. See also Response 16 above.
    Comment #18--ADEQ recommends that EPA continue to evaluate BACM on 
a case-by-case basis, considering the relative contributions of source 
categories such as OHVs, to ensure that the most cost-effective control 
measures appropriate for contributing anthropogenic sources in each 
planning area are adopted and implemented.
    Response #18--EPA agrees that local conditions should be considered 
as part of a BACM analysis and ICAPCD has included such information in 
its BACM analysis. For example, EPA agrees that

[[Page 23682]]

ICAPCD has adequately demonstrated BACM for OHV activity based in part 
on the 2012 BACM assessment which includes discussion of local 
conditions (e.g., less than 1% of open lands are urban vacant areas in 
Imperial County compared to 52% of Maricopa's nonattainment area open 
lands.) \24\
---------------------------------------------------------------------------

    \24\ 2012 BACM Assessment, pg. 8.
---------------------------------------------------------------------------

    Comment #19--ADEQ does not support any presumption that inclusion 
of prerequisites similar to those in ICAPCD Rule 801 Section D are 
necessary to determine that a rule is BACM. Rather, the comment 
encourages EPA to continue reviewing each rule in the context of each 
area's overall air pollution control strategy when making a 
determination that a rule fulfills BACM or most stringent control 
measure requirements.
    Response #19--As mentioned in Response 18 above, we agree 
that local conditions should be considered as part of a BACM analysis. 
We also believe that the existence of requirements in other areas 
should be considered as part of a BACM analysis. For example, it would 
be relevant for a BACM analysis for OHV in Arizona to consider both 
ICAPCD Rule 801 and any local conditions specific to Arizona. However, 
today's action regards ICAPCD Rules 800, 804, 805 and 806, and nothing 
in the comment suggests any change to our proposed approval.

III. EPA Action

    No comments changed our assessment of the rule as described in our 
proposed action. Therefore, as authorized in section 110(k)(3) of the 
Act, EPA is fully approving these rules into the California SIP. This 
action permanently terminates all sanctions and FIP implications 
associated with the July 8, 2010 final action.
    EPA's preliminary view is that the Regulation VIII rules as revised 
in October 2012 constitute reasonable control of the sources covered by 
Regulation VIII for the purpose of evaluating whether an exceedance of 
the PM10 NAAQS is an exceptional event pursuant to the 
exceptional events rule, including reasonable and appropriate control 
measures on significant contributing anthropogenic sources. This 
statement does not extend to exceedances of NAAQS other than the 
PM10 NAAQS, or to events that differ significantly in terms 
of meteorology, sources, or conditions from the events that were at 
issue in EPA's July 2010 final action and associated litigation. EPA is 
not making any determinations at this time with respect to any specific 
PM10 exceedances.

IV. 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 disproportionate human health or environmental effects with 
practical, appropriate, 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.
    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 action 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).
    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 June 21, 2013. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action 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: March 27, 2013.
Alexis Strauss,
Acting Regional Administrator, Region IX.

    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)(424) to read as 
follows:


Sec.  52.220  Identification of plan.

* * * * *
    (c) * * *
    (424) New and amended regulations for the following APCDs were 
submitted

[[Page 23683]]

on November 7, 2012 by the Governor's designee.
    (i) Incorporation by Reference
    (A) Imperial County Air Pollution Control District
    (1) Rule 800, ``General Requirements for Control of Fine 
Particulate Matter PM10,'' amended on October 16, 2012.
    [2] Rule 804, ``Open Areas,'' amended on October 16, 2012.
    [3] Rule 805, ``Paved and Unpaved Roads,'' amended on October 16, 
2012.
    [4] Rule 806, ``Conservation Management Practices (CMPs),'' amended 
on October 16, 2012.

[FR Doc. 2013-09307 Filed 4-19-13; 8:45 am]
BILLING CODE P