[Federal Register: August 1, 2007 (Volume 72, Number 147)]
[Rules and Regulations]
[Page 41896-41900]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01au07-8]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2006-0729; FRL-8439-2]
Revisions To the Arizona State Implementation Plan, Pinal County
Air Quality Control District
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is finalizing a limited approval and limited disapproval
of revisions to the Pinal County Air Quality Control District (PCAQCD)
portion of the Arizona State Implementation Plan (SIP). This action was
proposed in the Federal Register on October 17, 2006 and concerns
particulate matter (PM-10) emissions from fugitive dust. Under
authority of the Clean Air Act as amended in 1990 (CAA or the Act),
this action simultaneously approves local rules that regulate these
emission sources and directs Arizona to correct rule deficiencies.
DATES: Effective Date: This rule is effective on August 31, 2007.
ADDRESSES: EPA has established docket number EPA-R09-OAR-2006-0729 for
this action. The index to the docket is available electronically at
http://www.regulations.gov and in hard copy at EPA Region IX, 75
Hawthorne Street, San Francisco, California. While all documents in the
docket are listed in the index, some information may be publicly
available only at the hard copy location (e.g., copyrighted material),
and some may not be publicly available in either location (e.g., CBI).
To inspect the hard copy materials, please schedule an appointment
during normal business hours with the contact listed in the FOR FURTHER
INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: Francisco D[oacute][ntilde]ez, EPA
Region IX, (415) 972-3956, Donez.Francisco@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to EPA.
I. Proposed Action
On October 17, 2006 (71 FR 60934), EPA proposed a limited approval
and limited disapproval of the following rules that were submitted for
incorporation into the Arizona SIP.
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Local agency Rule No. Rule title Adopted Submitted
----------------------------------------------------------------------------------------------------------------
PCAQCD................................ 4-2-020 General [Fugitive Dust]. 06/29/93 11/27/95
PCAQCD................................ 4-2-030 Definitions [Fugitive 06/29/93 11/27/95
Dust].
PCAQCD................................ 4-2-040 Standards [Fugitive 06/29/93 11/27/95
Dust].
[[Page 41897]]
PCAQCD................................ 4-2-050 Monitoring and Records 05/14/97 10/07/98
[Fugitive Dust].
----------------------------------------------------------------------------------------------------------------
We proposed a limited approval because we determined that these
rules improve the SIP and are largely consistent with the relevant CAA
requirements. We simultaneously proposed a limited disapproval because
some rule provisions conflict with section 110 and part D of the Act.
These provisions include the following:
1. The exemption of agricultural activities from fugitive dust
rules without justification in Rules 4-2-020 and 4-2-030.
2. Expression of rule requirements in highly general terms, using
the vaguely defined criterion of ``reasonable precaution,'' in Rules 4-
2-030 and 4-2-040.
3. The absence of recordkeeping provisions in Rule 4-2-050.
Our proposed action contains more information on the basis for this
rulemaking and on our evaluation of the submittal.
II. Public Comments and EPA Responses
EPA's proposed action provided a 30-day public comment period.
During this period, we received comments from the following parties.
1. Donald P. Gabrielson, Pinal County Air Quality Control District
(PCAQCD); letter dated November 16, 2006 and received November 16,
2006.
2. Susan Asmus, National Association of Home Builders (NAHB);
letter dated November 15, 2006 and received November 16, 2006.
The comments and our responses are summarized below.
Comment #1: PCAQCD commented that EPA's proposed rule incorrectly
stated that there are no previous versions of Rules 4-2-020, 4-2-030,
4-2-040, and 4-2-050 in the SIP. The comment pointed out that EPA
approved Pinal County Regulation 7-3-1.2 (Fugitive Dust) into the SIP
on November 15, 1978 (43 FR 53034). Regulation 7-3-1.2 contains
provisions similar to those in the submitted version of 4-2-040.
Response #1: EPA acknowledges that this correction to our proposed
rule is accurate. However, this error does not have any substantive
impact on our proposed action.
Comment #2: PCAQCD commented that the effective agricultural
exemption in Rules 4-2-020 and 4-2-030 was removed in a subsequent
amendment of these rules, adopted on January 24, 2003. However, these
amended rules were not submitted as SIP elements.
Response #2: EPA acknowledges the 2003 amendments to Rules 4-2-020
and 4-2-030. However, we can only act on rules that have been submitted
by the state as SIP amendments. As this comment indicates, the 2003
revisions were never submitted to EPA for inclusion in the SIP. If
PCAQCD submits the 2003 version of these rules as a SIP amendment, our
objection to the agricultural exemption will be resolved.
Comment #3: PCAQCD disagreed that the definition and use of
``reasonable precaution'' in Rules 4-2-030 and 4-2-040, respectively,
is not sufficiently clear or enforceable. They commented that
formulating specific requirements for every dust-generating activity
would be impractical.
Response #3: In our General Preamble for the Implementation of
Title I of the Clean Air Act Amendments of 1990 we explain that
procedures for determining compliance with a rule must be
``sufficiently specific and nonsubjective so that two independent
entities applying the procedures would obtain the same result.'' See 57
FR 13498, 13568 (April 16, 1992). A SIP must also include ``clear,
unambiguous, and measurable requirements'' for ensuring that sources
are in compliance with control measures (ibid).
These rules do not meet EPA's enforceability criteria because they
do not establish any standards by which to gauge source compliance with
implementation of reasonable precautions. Rules 4-2-030 and 4-2-040
allow Executive Officer discretion in determining when measures have
``effectively prevented'' the emission of fugitive dust. EPA considers
such Executive Officer discretion a violation of Clean Air Act section
110(a)(2)(A).
In contrast, analogous rules in other areas describe specific
requirements for significant sources of PM-10 by source category.
Examples of district rules containing specific source category
requirements include:
Maricopa County Environmental Services Department, Arizona
(MCESD), Rule 310 (Fugitive Dust).
San Joaquin Valley Unified Air Pollution Control District,
California (SJVUAPCD), Regulation 8 (Fugitive PM-10 Prohibitions).
[cir] Rule 8021 (Construction, Demolition, Excavation, Extraction, and
Other Earthmoving Activities)
[cir] Rule 8031 (Bulk Materials)
[cir] Rule 8041 (Carryout and Trackout)
[cir] Rule 8051 (Open Areas)
[cir] Rule 8061 (Paved and Unpaved Roads)
[cir] Rule 8071 (Unpaved Vehicle/Equipment Traffic Areas)
[cir] Rule 8081 (Agricultural Sources)
South Coast Air Quality Management District, California
(SCAQMD), Rule 403 (Fugitive Dust).
Clark County, Nevada.
[cir] Section 90 (Fugitive Dust From Open Areas and Vacant Lots)
[cir] Section 91 (Fugitive Dust From Unpaved Roads, Unpaved Alleys, and
Unpaved Easement Roads)
[cir] Section 92 (Fugitive Dust From Unpaved Parking Lots, Material
Handling and Storage Yards, and Vehicle and Equipment Storage Yards)
[cir] Section 93 (Fugitive Dust From Paved Roads and Street Sweeping
Equipment)
[cir] Section 94 (Permitting and Dust Control for Construction
Activities)
It is PCAQCD's obligation to consider their own inventory and
establish specific BACM requirements for significant source categories.
EPA will work with PCAQCD to identify measures that are appropriate in
light of local circumstances.
Comment #4: PCAQCD disagreed with EPA's assertion in our proposed
rule that the absence of recordkeeping provisions in Rule 4-2-050
constitutes a rule deficiency. They further commented that the
``reasonable precaution'' standard, combined with monitoring
information, is sufficient to ascertain compliance with these rules.
Response #4: Recordkeeping provisions in prohibitory rules provide
the main instruments for effective enforcement of regulatory
requirements. Recordkeeping is needed in order to verify compliance
with the requirements or limits established by the rule. Section 110(a)
of the Clean Air Act requires the inclusion of recordkeeping measures
in any submitted SIP rule. Though recordkeeping requirements for
fugitive dust may not be as detailed as those in typical stationary
source rules, some feasible recordkeeping provisions are nevertheless
required. Examples of district rules containing recordkeeping
requirements include:
Maricopa County Environmental Services Department, Arizona
(MCESD), Rule 310 (Fugitive Dust).
[[Page 41898]]
San Joaquin Valley Unified Air Pollution Control District,
California (SJVUAPCD), Regulation 8 (Fugitive PM-10 Prohibitions), Rule
8011 (General Requirements).
South Coast Air Quality Management District, California
(SCAQMD), Rule 403 (Fugitive Dust).
Clark County, Nevada.
[cir] Section 90 (Fugitive Dust From Open Areas and Vacant Lots)
[cir] Section 91 (Fugitive Dust From Unpaved Roads, Unpaved Alleys, and
Unpaved Easement Roads)
[cir] Section 92 (Fugitive Dust From Unpaved Parking Lots, Material
Handling and Storage Yards, and Vehicle and Equipment Storage Yards)
[cir] Section 93 (Fugitive Dust From Paved Roads and Street Sweeping
Equipment)
[cir] Section 94 (Permitting and Dust Control for Construction
Activities)
Comment #5: PCAQCD commented that EPA has no basis to impose
sanctions on the basis of the currently submitted rules. They noted
that the currently approved SIP Rule R7-3-1.2 also applies a
``reasonable precaution'' standard with respect to agricultural
activity, and that EPA is not justified in starting a sanctions clock
for the current rules, in which the ``reasonable precaution''
requirement is repeated.
Response #5: We approved Rule 7-3-1.2 into the SIP in 1978. Since
that time, national policy on particulate matter and fugitive dust
requirements has evolved. Sections 172(c)(1) and 189(a) of the CAA
require moderate PM-10 nonattainment areas to implement reasonably
available control measures (RACM), including reasonably available
control technology (RACT) for stationary sources of PM-10. Section
189(b) requires that serious PM-10 nonattainment areas, in addition to
meeting the RACM/RACT requirements, implement best available control
measures (BACM), including best available control technology (BACT). In
the northern part of PCAQCD is the Apache Junction portion of the
Phoenix metropolitan area, which is a serious PM-10 nonattainment area.
In the northeastern part of PCAQCD is Hayden-Miami, which is a moderate
PM-10 nonattainment area. PCAQCD regulates certain sources of PM-10
within both nonattainment areas.
EPA's guidance for both moderate and serious PM-10 nonattainment
areas requires that RACM/RACT and BACM/BACT be implemented for all
source categories unless the State demonstrates that a particular
source category does not contribute significantly to PM-10 levels in
excess of the NAAQS (i.e., de minimis sources). See the General
Preamble for the Implementation of Title I of the Clean Air Act
Amendments of 1990, 57 FR 13498, 13540 (April 16, 1992) and Addendum to
the General Preamble for the Implementation of Title I of the Clean Air
Act Amendments of 1990, 59 FR 41998, 42011 (August 16, 1994).
The potential to emit of the emission activities subject to PCAQCD
Rules 4-2-020, 4-2-030, 4-2-040, and 4-2-050 comprises a small but
significant portion of the total PM-10 emissions in the Phoenix
metropolitan area, according to the August 1999 Apache Junction Portion
of the Metropolitan Phoenix PM-10 Serious State Implementation Plan
(PM-10 Plan). Therefore, Rules 4-2-020, 4-2-030, 4-2-040, and 4-2-050
must meet BACM/BACT control levels. Under this standard, Rules 4-2-020,
4-2-030, 4-2-040, and 4-2-050 are not wholly approvable for inclusion
in the SIP, and per Clean Air Act Section 179, a sanctions clock must
be started.
We also note the following from the preamble to the recently
promulgated PM standards: ``The United States Department of Agriculture
(USDA) has been working with the agricultural community to develop
conservation systems and activities to control coarse particle
emissions. Based on current ambient monitoring information, these USDA-
approved conservation systems and activities have proven to be
effective in controlling these emissions in areas where coarse
particles emitted from agricultural activities have been identified as
a contributor to violation of the NAAQS. The EPA concludes that where
USDA-approved conservation systems and activities have been
implemented, these systems and activities have satisfied the Agency's
reasonable available control measure and best available control measure
requirements. The EPA believes that in the future, when properly
implemented, USDA-approved conservation systems and activities should
satisfy the requirements for reasonably available control measures or
best available control measures.''
Comment #6: NAHB sent a comment supporting EPA's proposed action.
Response #6: EPA acknowledges this comment.
III. EPA Action
No comments were submitted that change our assessment of the rules
as described in our proposed action. Therefore, as authorized in
sections 110(k)(3) and 301(a) of the Act, EPA is finalizing a limited
approval of the submitted rules. This action incorporates the submitted
rule into the Arizona SIP, including those provisions identified as
deficient. As authorized under section 110(k)(3), EPA is simultaneously
finalizing a limited disapproval of the rules. As a result, sanctions
will be imposed unless EPA approves subsequent SIP revisions that
correct the rule deficiencies within 18 months of the effective date of
this action. These sanctions will be imposed under section 179 of the
Act according to 40 CFR 52.31. In addition, EPA must promulgate a
federal implementation plan (FIP) under section 110(c) unless we
approve subsequent SIP revisions that correct the rule deficiencies
within 24 months. Note that the submitted rules have been adopted by
the PCAQCD, and EPA's final limited disapproval does not prevent the
local agency from enforcing them.
IV. Statutory and Executive Order Reviews
A. Executive Order 12866, Regulatory Planning and Review
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866, entitled ``Regulatory
Planning and Review.''
B. Paperwork Reduction Act
This 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.)
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
[[Page 41899]]
inquiry into the economic reasonableness of state action. The Clean Air
Act forbids EPA to base its actions concerning SIPs on such grounds.
Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C.
7410(a)(2).
D. Unfunded Mandates Reform Act
Under sections 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the approval action promulgated does not
include a Federal mandate that may result in estimated costs of $100
million or more to either State, local, or tribal governments in the
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
E. Executive Order 13132, Federalism
Federalism (64 FR 43255, August 10, 1999) revokes and replaces
Executive Orders 12612 (Federalism) and 12875 (Enhancing the
Intergovernmental Partnership). Executive Order 13132 requires EPA to
develop an accountable process to ensure ``meaningful and timely input
by State and local officials in the development of regulatory policies
that have federalism implications.'' ``Policies that have federalism
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.'' Under Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts State law unless the
Agency consults with State and local officials early in the process of
developing the proposed regulation.
This rule will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government, as specified in Executive Order 13132, because it
merely approves a state rule implementing a federal standard, and does
not alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. Thus, the
requirements of section 6 of the Executive Order do not apply to this
rule.
F. Executive Order 13175, Coordination With Indian Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This final rule does not have
tribal implications, as specified in Executive Order 13175. It will not
have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes. Thus, Executive Order 13175 does not
apply to this rule.
G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is
determined to be ``economically significant'' as defined under
Executive Order 12866, and (2) concerns an environmental health or
safety risk that EPA has reason to believe may have a disproportionate
effect on children. If the regulatory action meets both criteria, the
Agency must evaluate the environmental health or safety effects of the
planned rule on children, and explain why the planned regulation is
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency.
This rule is not subject to Executive Order 13045 because it does
not involve decisions intended to mitigate environmental health or
safety risks.
H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a
significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12 of the National Technology Transfer and Advancement Act
(NTTAA) of 1995 requires Federal agencies to evaluate existing
technical standards when developing a new regulation. To comply with
NTTAA, EPA must consider and use ``voluntary consensus standards''
(VCS) if available and applicable when developing programs and policies
unless doing so would be inconsistent with applicable law or otherwise
impractical.
The EPA believes that VCS are inapplicable to this action. Today's
action does not require the public to perform activities conducive to
the use of VCS.
J. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective August 31, 2007.
K. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by October 1, 2007. Filing a
petition for reconsideration by
[[Page 41900]]
the Administrator of this final rule does not affect the finality of
this rule for the purposes of judicial review nor does it extend the
time within which a petition for judicial review may be filed, and
shall not postpone the effectiveness of such rule or action. 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: June 25, 2007.
Wayne Nastri,
Regional Administrator, Region IX.
0
Part 52, Chapter I, Title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for Part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart D--Arizona
0
2. Section 52.120 is amended by adding paragraphs (c)(84)(i)(L) and
(107)(i)(A)(2) to read as follows:
Sec. 52.120 Identification of plan.
* * * * *
(c) * * *
(84) * * *
(i) * * *
(L) Rules 4-2-020, 4-2-030, and 4-2-040, adopted on June 29, 1993.
* * * * *
(107) * * *
(i) * * *
(A) * * *
(2) Rule 4-2-050, adopted on May 14, 1997.
* * * * *
[FR Doc. E7-14555 Filed 7-31-07; 8:45 am]
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