

[Federal Register: October 17, 2006 (Volume 71, Number 200)]
[Proposed Rules]               
[Page 60934-60937]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17oc06-37]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2006-0729; FRL-8231-4]

 
Revisions to the Arizona State Implementation Plan, Pinal County 
Air Quality Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing 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). These revisions 
concern particulate matter (PM-10) emissions from fugitive dust. 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 November 16, 2006.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2006-0729, by one of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-

line 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

[[Page 60935]]

online at http://www.regulations.gov, including any personal information 

provided, unless the comment includes Confidential Business Information 
(CBI) or other information whose disclosure is restricted by statute. 
Information that you consider CBI or otherwise protected should be 
clearly identified as such and should not be submitted through 
http://www.regulations.gov or e-mail. www.regulations.gov is an ``anonymous 

access'' system, and EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send e-mail directly to EPA, your e-mail address will be automatically 
captured and included as part of the public comment. If EPA cannot read 
your comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment.
    Docket: The index to the docket for this action is available 
electronically at http://www.regulations.gov and in hard copy at EPA Region 

IX, 75 Hawthorne Street, San Francisco, California. While all documents 
in the docket are listed in the index, some information may be publicly 
available only at the hard copy location (e.g., copyrighted material), 
and some may not be publicly available in either location (e.g., CBI). 
To inspect the hard copy materials, please schedule an appointment 
during normal business hours with the contact listed in the FOR FURTHER 
INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Francisco Donez, EPA Region IX, (415) 
972-3956, Donez.Francisco@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 rule deficiencies?
    D. 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 local air agencies and submitted by the 
Arizona Department of Environmental Quality (ADEQ).

                                            Table 1.--Submitted Rules
----------------------------------------------------------------------------------------------------------------
                                       Rule < greek-
             Local agency                   i>               Rule title               Adopted        Submitted
----------------------------------------------------------------------------------------------------------------
PCAQCD...............................      4-2-020  General [Fugitive Dust].....         6/29/93       11/27/95.
PCAQCD...............................      4-2-030  Definitions [Fugitive Dust].         6/29/93       11/27/95.
PCAQCD...............................      4-2-040  Standards [Fugitive Dust]...         6/29/93       11/27/95.
PCAQCD...............................      4-2-050  Monitoring and Records               5/14/97       10/07/98.
                                                     [Fugitive Dust].
----------------------------------------------------------------------------------------------------------------

    On June 4, 1996, the submittals of rules 4-2-020, 4-2-030, and 4-2-
040 were found to meet the completeness criteria in 40 CFR part 51, 
Appendix V, which must be met before formal EPA review. On April 24, 
1999, the submittal of rule 4-2-050 was found to meet the completeness 
criteria.

B. Are there other versions of these rules?

    There are no previous versions of Rules 4-2-020, 4-2-030, 4-2-040, 
or 4-2-050 in the SIP.

C. What is the purpose of the submitted rules?

    Particulate matter (PM-10) harms human health and the environment. 
Section 110(a) of the CAA requires states to submit regulations that 
control PM-10 emissions. Rules 4-2-020, 4-2-030, 4-2-040, and 4-2-050 
establish requirements that help control PM-10 emissions from fugitive 
dust. EPA's technical support document (TSD) has more information about 
these rules.

II. EPA's Evaluation and Action

A. How is EPA evaluating the rules?

    Generally, SIP rules must be enforceable (see section 110(a) of the 
CAA), must require reasonably available control measures (RACM), 
including reasonably available control technology (RACT) in moderate 
PM-10 nonattaiment areas (see section 189(a)), must require best 
available control measures (BACM), including best available control 
technology (BACT) in serious PM-10 nonattaiment areas (see section 
189(b)), and must not relax existing requirements (see sections 110(l) 
and 193). A portion of PCAQCD is designated attainment, a portion is 
designated moderate nonattainment, and a portion is designated serious 
nonattainment for PM-10.
    The following guidance documents were used for reference:
    1. Requirements for Preparation, Adoption, and Submittal of 
Implementation Plans, U.S. EPA, 40 CFR part 51.
    2. PM-10 Guideline Document (EPA-452/R-93-008).

B. Do the rules meet the evaluation criteria?

    These rules improve the SIP by establishing more stringent emission 
limits. These rules are largely consistent with the relevant policy and 
guidance regarding enforceability, RACT and SIP relaxations. Rule 
provisions which do not meet the evaluation criteria are summarized 
below and discussed further in the TSD.

C. What are the rule deficiencies?

    These provisions conflict with section 110 and part D of the Act 
and prevent full approval of the SIP revision.
    1. Rule 4-2-020, Section B specifies that Article 4 ``shall not be 
construed so as to prevent normal farm cultural practices which cause 
fugitive dust.'' Normal farm cultural practice is defined in Rule 4-2-
030, Definition 2, as ``all activities * * * conducted on any facility 
for the production of crops, livestock, poultry, livestock products or 
poultry products.'' As written, Rule 4-2-020, Section B effectively 
exempts agricultural activities from the fugitive dust rules without 
justification.
    2. Rule 4-2-030, Definition 3, defines ``reasonable precaution'' in 
highly general terms. The term ``reasonable precaution'' is then used 
in every section of Rule 4-2-040, to define what actions must be taken 
to mitigate fugitive dust emissions from relevant activities. This 
general requirement is not sufficiently clear or enforceable.
    3. Rule 4-2-050 does not contain recordkeeping provisions. The 
absence of these provisions makes the all of the submitted rules 
difficult to enforce.

D. Proposed Action and Public Comment

    As authorized in sections 110(k)(3) and 301(a) of the Act, EPA is 
proposing a limited approval of the submitted

[[Page 60936]]

rules to improve the SIP. If finalized, this action would incorporate 
the submitted rules into the SIP, including those provisions identified 
as deficient. This approval is limited because EPA is simultaneously 
proposing a limited disapproval of the rules under section 110(k)(3). 
If this disapproval is finalized, sanctions will be imposed under 
section 179 of the Act unless EPA approves subsequent SIP revisions 
that correct the rule deficiencies within 18 months. These sanctions 
would be imposed according to 40 CFR 52.31. A final disapproval would 
also trigger the federal implementation plan (FIP) requirement under 
section 110(c). Note that the submitted rules have been adopted by the 
PCAQCD, and EPA's final limited disapproval will not prevent the local 
agency from enforcing them.
    We will accept comments from the public on the proposed limited 
approval and limited disapproval 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 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 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 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 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

    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

[[Page 60937]]

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.

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: September 14, 2006.
Wayne Nastri,
Regional Administrator, Region IX.
 [FR Doc. E6-17233 Filed 10-16-06; 8:45 am]

BILLING CODE 6560-50-P
