[Federal Register: August 30, 2005 (Volume 70, Number 167)]
[Proposed Rules]
[Page 51303-51306]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30au05-19]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA-311-0487; FRL-7962-9]
Revisions to the California State Implementation Plan, San
Joaquin Valley Unified Air Pollution Control District
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to approve revisions to the San Joaquin
Valley Unified Air Pollution Control District portion of the California
State Implementation Plan (SIP). These revisions concern particulate
matter (PM-10) emissions from fugitive dust sources. We are proposing
to approve amendments to 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 29, 2005.
ADDRESSES: Send comments to Andrew Steckel, Rulemaking Office Chief
(AIR-4), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne
http://www.regulations.gov.
You can inspect copies of the submitted SIP revisions, EPA's
technical support documents (TSDs), and public comments at our Region
IX office during normal business hours by appointment.
You may also see copies of the submitted SIP revisions by
appointment at the following locations:
California Air Resources Board, Stationary Source Division, Rule
Evaluation Section, 1001 ``I'' Street, Sacramento, CA 95814.
San Joaquin Valley Unified Air Pollution Control District, 1990 E.
Gettysburg, Fresno, CA 93726
Copies of the rules may also be available via the Internet at
http://www.arb.ca.gov/drdb/drdbltxt.htm. Please be advised that this is
not an EPA Web site and may not contain the same version of the rule
that was submitted to EPA.
FOR FURTHER INFORMATION CONTACT: Karen Irwin, EPA Region IX, (415) 947-
4116, irwin.karen@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 rule revisions?
II. Background to Today's Proposal
III. 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.
IV. Statutory and Executive Order Reviews
I. The State's Submittal
A. What Rules Did the State Submit?
Table 1 lists the individual rules addressed by this proposed rule
with the dates that they were adopted by the San Joaquin Valley Unified
Air Pollution Control District (SJVUAPCD) and submitted to EPA by the
California Air Resources Board (CARB). The rules that are the subject
of this action are collectively referred to as ``Regulation VIII''.
[[Page 51304]]
Table 1.--Submitted Rules
----------------------------------------------------------------------------------------------------------------
Rule No. Rule title Adopted Submitted
----------------------------------------------------------------------------------------------------------------
8011.......................................... General Requirements.................. 08/19/04 09/23/04
8021.......................................... Construction, Demolition, Excavation, 08/19/04 09/23/04
Extraction, and Other Earthmoving
Activities.
8031.......................................... Bulk Materials........................ 08/19/04 09/23/04
8041.......................................... Carryout and Trackout................. 08/19/04 09/23/04
8051.......................................... Open Areas............................ 08/19/04 09/23/04
8061.......................................... Paved and Unpaved Roads............... 08/19/04 09/23/04
8071.......................................... Unpaved Vehicle/Equipment Traffic 09/16/04 09/23/04
Areas.
8081.......................................... Agricultural Sources.................. 09/16/04 09/23/04
----------------------------------------------------------------------------------------------------------------
On March 23, 2005, these rule submittals were found complete by
operation of law in accordance with section 110(k)(1) of the Act and 40
CFR part 51, appendix V.
B. Are There Other Versions of These Rules?
We approved versions of Rules 8011, 8021, 8031, 8041, 8051, 8061,
8071 and 8081 into the SIP on February 26, 2003. 68 FR 8830. The SIP-
approved versions of these rules were adopted by SJVUAPCD on November
15, 2001 and CARB submitted them to us on December 6, 2001.
C. What Is the Purpose of the Submitted Rule Revisions?
The submitted revisions are necessary to fulfill Regulation VIII
commitments in the SIP-approved 2003 PM-10 Plan for the San Joaquin
Valley. The TSD has more information about these rule revisions.
II. Background to Today's Proposal
On November 15, 1990, amendments to the CAA were enacted. Pub. Law
101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-7671q. On the date
of enactment of the 1990 CAA Amendments, PM-10 areas meeting the
qualifications of section 107(d)(4)(B) of the Act, including the San
Joaquin Valley Air Basin,\1\ were designated nonattainment by operation
of law and classified as moderate pursuant to section 188(a). Under
section 189(a) of the CAA, moderate PM-10 nonattainment areas must
implement by December 10, 1993 Reasonably Available Control Measures
(RACM) for PM-10.
---------------------------------------------------------------------------
\1\ The San Joaquin Valley Air Basin is under the jurisdiction
of the SJVUAPCD.
---------------------------------------------------------------------------
On February 8, 1993, EPA reclassified five moderate nonattainment
areas, including the San Joaquin Valley Air Basin, to serious
nonattainment pursuant to section 188(b)(58 FR 3334). Section 189(b)
requires serious nonattainment areas to implement Best Available
Control Measures (BACM) by February 8, 1997, four years after
reclassification.\2\
---------------------------------------------------------------------------
\2\ Because the statutory RACM and BACM implementation deadlines
have passed, RACM and BACM must be implemented ``as soon as
possible.'' Delaney v. EPA, 898 F.2d 687, 691 (9th Cir. 1990). EPA
has interpreted this requirement to be ``as soon as practicable.''
55 FR 36458, 36505 (September 9, 1990). States are required to
develop RACM and BACM that address both the annual and 24-hour PM-10
standards. Ober v. EPA, 84 F.3d 304, 308-311 (9th Cir. 1996).
---------------------------------------------------------------------------
In response to section 110(a) and Part D of the Act, local
California air pollution control districts adopted and the State of
California submitted many PM-10 rules to EPA for incorporation into the
California SIP on July 23, 1996, including a series of fugitive dust
rules (``Regulation VIII'') adopted by SJVUAPCD.
On March 8, 2000, EPA took final action on the 1996 version of
Regulation VIII, issuing a limited approval and limited disapproval
with an effective date of April 7, 2000. 65 FR 12118. EPA noted that it
was ``finalizing the limited approval of these rules in order to
strengthen the SIP and finalizing the limited disapproval because of
the remaining deficiencies.'' Id. at 12119/1.\3\ Among the deficiencies
identified by EPA were ``lack of appropriate standards and/or test
methods that would ensure a level of control consistent with RACM or
BACM * * *.'' Id.
---------------------------------------------------------------------------
\3\ The number following the slash (``/'') in this citation
refers to the column on the Federal Register page.
---------------------------------------------------------------------------
As a result of the disapproval, EPA explained that the emissions
offset sanction would apply 18 months after April 7, 2000, and the
highway funding sanction six months later, unless the Air District
cured the deficiencies. Id. at 12118/2-3. In addition, EPA explained
that it would be required to promulgate a Federal Implementation Plan
(FIP) if those deficiencies were not corrected within 24 months.
SJVUAPCD adopted revised Regulation VIII rules on November 15,
2001, which CARB submitted to EPA on December 6, 2001. SJVUAPCD
intended that the new rules would both remedy the RACM deficiencies
identified by EPA in its March 8, 2000 action, and fulfill BACM
requirements under the CAA. EPA found that new provisions in Regulation
VIII ``significantly strengthened'' the rules by tightening standards,
covering more activities, and adding more requirements to control dust-
producing activities. 67 FR 15346-47 (4/1/02).
On February 26, 2003, EPA issued a final rulemaking (Final Rule)
(68 FR 8830) that conditionally approved the November 15, 2001 version
of Regulation VIII with respect to RACM and issued a limited approval
and limited disapproval of Regulation VIII with respect to BACM. Thus,
the November 15, 2001 version of Regulation VIII was added to the SIP,
yet a sanctions clock for the BACM deficiency began with the effective
date of the Final Rule, March 28, 2003. Id. at 8833/3. We found that
the submittal did not adequately fulfill the CAA section 189(b)
requirement for a BACM demonstration, specifically identifying
thresholds of source coverage within the rules (e.g., minimum size of
sources subject to rule requirements) for which an adequate BACM
demonstration was outstanding.
On August 19, 2003, CARB submitted the ``2003 PM10 Plan, San
Joaquin Valley Plan to Attain Federal Standards for Particulate Matter
10 Microns and Smaller''. CARB submitted Amendments to this plan on
December 30, 2003.\4\ Among other demonstrations, the Plan included a
demonstration that RACM and BACM will be expeditiously implemented for
all significant sources of PM-10. The Plan's RACM and BACM
demonstration included fugitive dust sources subject to Regulation VIII
and contained several specific commitments to upgrade Regulation VIII
to a BACM level of control by September 2004. On
[[Page 51305]]
May 26, 2004, EPA approved the SJV 2003 PM-10 Plan, including the RACM
and BACM demonstration for Regulation VIII sources, as meeting the
requirements of CAA sections 189(a)(1)(C) and 189(b)(1)(B).\5\ 69 FR
30006. Approval of this demonstration terminated all Regulation VIII
sanction, FIP, and rule disapproval implications of our February 26,
2003 action. Id. at 30035/1.
---------------------------------------------------------------------------
\4\ The Amendments to the 2003 PM-10 Plan supersede some
portions of the 2003 PM-10 Plan and also add to it. References
hereafter to the ``SJV 2003 PM-10 Plan'' or ``the Plan'' mean the
2003 Plan submitted on August 19, 2003, as amended by the December
30, 2003 submittal.
\5\ As we explained in our proposed approval of the Plan, CAA
section 189(a)(1)(C) requires implementation of RACM for moderate
PM-10 nonattainment areas and that a serious area PM-10 plan must
also provide for the implementation of RACM to the extent that the
RACM requirement has not been satisfied in the area's moderate area
plan as was the case here. We further explained that we do not
normally conduct a separate evaluation to determine if a serious
area plan's measures meet the RACM as well as BACM requirements as
interpreted by us in the General Preamble for the Implementation of
Title I of the Clean Air Act Amendments of 1990, 57 FR 13498, 13540
(April 16, 1992) (General Preamble). This is because in our serious
area guidance--Addendum to the General Preamble for the
Implementation of Title I of the Clean Air Act Amendments of 1990,
59 FR 41998, 42010 (August 16, 1994) (Addendum)--we interpret the
BACM requirement as generally subsuming the RACM requirement (i.e.,
if we determine that the measures are indeed the ``best available,''
we have necessarily concluded that they are ``reasonably
available''). 69 FR at 5417/footnote 11. Accordingly, in our
evaluation and proposed approval of Regulation VIII below,
references to BACM are intended to include RACM.
---------------------------------------------------------------------------
III. 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). These rules have been evaluated for enforceability pursuant to
the ``Guidance Document for Correcting Common VOC & Other Rule
Deficiencies,'' EPA Region 9, August 21, 2001 (the Little Bluebook).
We have also reviewed the submitted rules to determine whether the
BACM commitments in the SJV 2003 PM-10 Plan have been adopted into
Regulation VIII for purposes of fulfilling the SIP-approved Plan
commitments.\6\ Since we have already approved the Plan's BACM
demonstration for Regulation VIII sources, we are only evaluating these
rules under CAA section 189(b) to the extent that requirements adopted
in August and September, 2004, differ from the BACM commitments
contained in the Plan. EPA's RACM guidance can be found in the General
Preamble. EPA's BACM guidance can be found in the Addendum.
---------------------------------------------------------------------------
\6\ EPA's determination that the Plan satisfies CAA section
189(b) requirements for BACM was, in part, based upon SJVUAPCD's
commitments to adopt specific requirements for fugitive dust sources
subject to Regulation VIII.
---------------------------------------------------------------------------
B. Do the Rules Meet the Evaluation Criteria?
We believe these rules are consistent with the relevant policy and
guidance regarding enforceability and SIP relaxations. In comparing the
relevant rule requirements to the SJV 2003 PM-10 Plan's Regulation VIII
BACM commitments, we found only minor differences for which reasoned
justification exists. Therefore, we believe that these rules fulfill
the Plan's Regulation VIII BACM commitments and that minor
modifications SJVUAPCD adopted into Regulation VIII requirements also
satisfy BACM. The TSD has more information on our evaluation.
C. EPA Recommendations To Further Improve the Rules
The TSD describes additional rule revisions that do not affect
EPA's current action but are recommended for the next time the local
agency modifies the rules.
D. Public Comment and Final Action
Because EPA believes the submitted rules fulfill all relevant
requirements as discussed above, we are proposing to fully approve them
under CAA section 110(k)(3) as meeting CAA sections 189(a)(1)(C) and
(b)(1)(B). We will accept comments from the public on this proposal for
the next 30 days. With respect to CAA sections 189(a) and 189(b), we
are only evaluating comments to the extent that newly adopted
requirements in Regulation VIII differ from the RACM/BACM commitments
contained in the PM-10 Plan that EPA has already approved. 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.
IV. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed action is not a ``significant regulatory action'' and
therefore is not subject to review by the Office of Management and
Budget. For this reason, this action is also not subject to Executive
Order 13211, ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This
proposed action merely proposes to approve state law as meeting Federal
requirements and imposes no additional requirements beyond those
imposed by state law. Accordingly, the Administrator certifies that
this proposed rule will not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-
existing requirements under state law and does not impose any
additional enforceable duty beyond that required by state law, it 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).
This proposed rule also does not have tribal implications because
it will not have a substantial direct effect on one or more Indian
tribes, 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, as specified by Executive
Order 13175 (65 FR 67249, November 9, 2000). This action also does not
have Federalism implications because it does 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 (64 FR 43255, August 10, 1999). This action
merely proposes to approve 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. This
proposed rule also is not subject to Executive Order 13045 ``Protection
of Children from Environmental Health Risks and Safety Risks'' (62 FR
19885, April 23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. This proposed rule does
not impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
[[Page 51306]]
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: August 5, 2005.
Keith Takata,
Acting Regional Administrator, Region IX.
[FR Doc. 05-17196 Filed 8-29-05; 8:45 am]
BILLING CODE 6560-50-P