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/ Tuesday, November 18, 2008
[Federal Register: November 18, 2008 (Volume 73, Number 223)]
[Proposed Rules]
[Page 68369-68373]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18no08-54]
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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: steckel.andrew@epa.gov.
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, wamsley.jerry@epa.gov.
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
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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
----------------------------------------------------------------------------------------------------------------
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
[[Page 68372]]
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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