
[Federal Register Volume 75, Number 35 (Tuesday, February 23, 2010)]
[Proposed Rules]
[Pages 8008-8013]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-3513]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2010-0120; FRL-9116-3]


Revisions to the California State Implementation Plan, Imperial 
County Air Pollution 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 Imperial County Air Pollution Control District 
(ICAPCD) portion of the California State Implementation Plan (SIP). 
These revisions concern coarse particulate matter (PM10) 
emissions from sources of fugitive dust such as construction sites, 
unpaved roads, and disturbed soils in open and agricultural areas. 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 March 25, 2010.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2010-0120, 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 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. http://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: Andrew Steckel, EPA Region IX, (415) 
947-4115, steckel.andrew@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
    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 Rules
III. Proposed Action and Public Comment
IV. 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, ICAPCD, and submitted 
by the California Air Resources Board (ARB).

[[Page 8009]]

The seven rules listed below constitute ICAPCD's Regulation VIII--
Fugitive Dust Rules.

                                            Table 1--Submitted Rules
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                                           Rule
              Local agency                 No.              Rule title                Adopted        Submitted
----------------------------------------------------------------------------------------------------------------
ICAPCD.................................      800  General Requirements for              11/08/05        06/16/06
                                                   Control of Fine Particulate
                                                   Matter.
                                             801  Construction & Earthmoving            11/08/05        06/16/06
                                                   Activities.
                                             802  Bulk Materials................        11/08/05        06/16/06
                                             803  Carry Out & Track Out.........        11/08/05        06/16/06
                                             804  Open Areas....................        11/08/05        06/16/06
                                             805  Paved & Unpaved Roads.........        11/08/05        06/16/06
                                             806  Conservation Management               11/08/05        06/16/06
                                                   Practices.
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    On July 21, 2006, we found that the State's submittal for ICAPCD 
Regulation VIII, Rules 800-806, met the completeness criteria in 40 CFR 
part 51, Appendix V. A completeness determination by EPA means that the 
submission provides sufficient information for EPA to evaluate it for 
action under CAA sections 110(k)(3) and (4).

B. Are There Other Versions of These Rules?

    There are no previous versions of Rules 800-806 in the SIP.

C. What Is the Purpose of the Submitted Rules?

    Exposure to ambient PM10 at levels above the NAAQS is 
harmful to human health and the environment, with effects 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 
develop a SIP that meets basic requirements for a national ambient air 
quality standard (NAAQS). If a state has areas that are designated 
``nonattainment'' for a NAAQS, then section 172, and in the case of the 
PM10-specific sections 188 and 189, require the state to 
submit regulations that control emissions of PM10 and its 
precursors, as appropriate, to bring the area into attainment of the 
NAAQS.
    The Imperial Valley is designated nonattainment for 
PM10. Accordingly, ICAPCD is developing regulations intended 
to attain the NAAQS. ICAPCD's Regulation VIII consists of seven inter-
related rules designed to limit emissions of PM10 from 
anthropogenic fugitive dust sources in Imperial County. Each rule is 
described briefly below.
    Rule 800, General Requirements for Control of Fine Particulate 
Matter, provides definitions, a compliance schedule, exemptions and 
other requirements generally applicable to all seven rules. It also 
describes specific exemptions and requirements for the U.S. Department 
of Defense (DOD), U.S. Bureau of Land Management (BLM) and U.S. Border 
Patrol (BP). Appendices A and B describe methods for determining 
compliance with opacity and surface stabilization requirements in Rules 
801 through 805.
    Rule 801, Construction and Earthmoving Activities, establishes a 
20% opacity limit and control requirements for construction and 
earthmoving activities. Affected sources must submit a dust control 
plan and comply with other portions of Regulation VIII regarding bulk 
materials, carry-out and track-out, and paved and unpaved roads. The 
rule exempts construction of single family homes and waives the 20% 
opacity limit in winds over 25 mph under certain conditions.
    Rule 802, Bulk Materials, establishes a 20% opacity limit and 
control requirements for bulk material handling, storage, transport and 
hauling.
    Rule 803, Carry-Out and Track-Out, establishes control requirements 
for removing carry-out and track-out material transported onto paved 
roads from unpaved roads and areas.
    Rule 804, Open Areas, establishes a 20% opacity limit and requires 
land owners to prevent vehicular trespass and to stabilize disturbed 
soil on certain open areas. Agricultural operations are exempt from the 
rule.
    Rule 805, Paved and Unpaved Roads, establishes a 20% opacity limit 
and control requirements for unpaved haul and access roads, canal 
roads, and traffic areas that meet certain size or traffic thresholds. 
Single family residences and agricultural operations are exempt from 
the rule.
    Rule 806, Conservation Management Practices, requires agricultural 
operation sites greater than 40 acres to implement at least one 
conservation management practice (CMP) for each of these categories: 
land preparation and cultivation, harvest activities, unpaved roads and 
unpaved traffic areas.
    EPA's technical support document (TSD) has more specific 
information about these rules. The submission from ICAPCD also provides 
additional details and includes the Regulation VIII rules.

II. EPA's Evaluation

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 SIP requirements (see sections 110(l) 
and 193). In addition, SIP rules must implement Reasonably Available 
Control Measures (RACM) for certain emissions sources in moderate 
PM10 nonattainment areas, and Best Available Control 
Measures (BACM) for such sources in serious PM10 
nonattainment areas (see CAA sections 189(a)(1) and 189(b)(1)).
    We used the following guidance and policy documents to evaluate 
enforceability and to interpret RACM or BACM requirements:

    1. ``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.
    2. ``Guidance Document for Correcting Common VOC & Other Rule 
Deficiencies,'' EPA Region 9, August 21, 2001 (the Little Bluebook).
    3. ``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).
    4. ``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).
    5. ``PM-10 Guideline Document,'' EPA 452/R-93-008, April 1993.
    6. ``Fugitive Dust Background Document and Technical Information 
Document for Best Available Control Measures,'' EPA 450/2-92-004, 
September 1992.


[[Page 8010]]


    Please see our TSD for other documents we have used in our 
evaluation.
    Because Imperial County is a PM10 nonattainment area 
classified as serious (see 40 CFR part 81), Regulation VIII must 
implement BACM for significant sources of PM10 in Imperial 
County. In guidance, 59 FR 41998 (August 16, 1994), we have defined 
BACM to be, among other things, the maximum degree of emission 
reduction achievable from a source category which is determined on a 
case-by-case basis considering energy, economic, environmental impacts 
and other costs. A source category is presumed to contribute 
significantly to a violation of the 24-hour PM10 national 
ambient air quality standard (150 [micro]g/m \3\) if its 
PM10 impact exceeds 5 [mu]g/m \3\. As described in more 
detail in the TSD, we determined that BACM is required for the 
following sources of PM10 emissions in Imperial County:

        Table 2--Significant Sources of PM-10 in Imperial County
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Open areas:
    Windblown Dust, Other Open Area.
Unpaved roads:
    Entrained Unpaved Road Dust, City/County.
    Entrained Unpaved Road Dust, Canal.
    Windblown Dust, Unpaved City/County Road.
    Windblown Dust, Unpaved Canal Road.
    Windblown Dust, Unpaved Farm Road.
Agricultural lands:
    Tilling.
    Windblown Dust, Non-Pasture Agricultural Lands.
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    We based the list of significant sources in Table 2 in part on 
ICAPCD's analysis of such sources in its 2009 PM10 
attainment plan.\1\ However, ICAPCD excluded from its analysis 
exceedances in 2006 and 2007 that it deemed to be caused by high wind 
exceptional events. As a result of the exclusion of these exceedances, 
ICAPCD's list of significant sources did not include any windblown dust 
sources. The State formally sought to exclude the 2006 and 2007 
exceedances for regulatory purposes under EPA's exceptional events rule 
(40 CFR 50.1(j) and 50.14).\2\
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    \1\ ``2009 Imperial County State Implementation Plan for 
Particulate Matter Less Than 10 Microns in Aerodynamic Diameter, 
Final,'' August 11, 2009, section 3.2.
    \2\ Letter from James N. Goldstene, ARB, to Deborah Jordan, EPA, 
May 19, 2009, requesting exclusion of September 2, 2006, April 12, 
2007, and June 5, 2007 Imperial County PM10 exceedances.
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    On December 22, 2009, EPA did not concur with the State's request 
to exclude the 2006 and 2007 exceedances as due to high wind 
exceptional events.\3\ EPA adjusted ICAPCD's significant source 
analysis to reflect this nonconcurrence, and as a result identified 
windblown dust from open areas, unpaved roads and non-pasture 
agricultural lands to be significant sources as reflected in Table 2. 
We have included the documents supporting our December 22, 2009 
nonconcurrence in the docket for this proposed rule.
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    \3\ See letter, with enclosure, from Laura Yoshii, EPA, to James 
Goldstene, ARB, Re: Exceptional events requests regarding 
exceedances of the PM-10 NAAQS in Imperial County, CA, December 22, 
2009.
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    In addition to the sources in Table 2 above, we believe BACM is 
required for unpaved traffic areas and agricultural harvest operations. 
These activities occur at the same facilities and are integrally 
related to other activities identified as significant (i.e., unpaved 
roads and tilling respectively). By analogy, where enforceable volatile 
organic compound (VOC) reasonably available control technology (RACT) 
level controls are required for refineries, SIP rules generally impose 
leak detection and repair requirements on valves, flanges, threaded 
connections, and other related equipment even if emissions from any one 
of these taken individually might be much smaller than the major source 
threshold requiring RACT.

B. Do the Rules Meet the Evaluation Criteria?

    Rules 800-806 improve the SIP by providing more stringent emission 
limits, monitoring, recording, and recordkeeping provisions for these 
sources compared to existing provisions in the SIP for the ICAPCD 
portion of California. The rules are largely consistent with the 
relevant statutory requirements, and with relevant policy and guidance 
regarding enforceability, RACM and BACM. Rule provisions that do not 
meet the evaluation criteria are summarized below and discussed further 
in the TSD.

C. What Are the Rules' Deficiencies?

    While, as indicated above, BACM is determined on a case-by-case 
basis, the identification of potential BACM for a significant source 
category in Imperial County necessarily involves a consideration of 
control measures adopted and/or implemented in other geographical areas 
for the same and similar source categories. Therefore, in evaluating 
Regulation VIII, we have compared its individual rules to analogous 
requirements in the South Coast Air Quality Management District 
(SCAQMD), San Joaquin Valley Air Pollution Control District (SJVAPCD), 
Maricopa County Air Quality Department (MCAQD), Clark County Department 
of Air Quality and Environmental Management (CCDAQEM) and other areas. 
In doing so, we recognize that some variability exists among sources in 
different geographical areas, and that technically and economically 
feasible controls in one area may not be feasible in another area.
    Based on our analysis, we believe that Regulation VIII is generally 
consistent with analogous requirements in other serious PM10 
areas and includes many provisions consistent with CAA BACM 
requirements and with EPA's established policy and guidance. However, 
the deficiencies discussed below preclude EPA's full approval of 
Regulation VIII. Sections II.C.1 through 3 below identify deficiencies 
related to sources for which BACM is required as discussed above in 
Section II.A. Section II.C.4 below identifies one deficiency related to 
the Regulation VIII rule for bulk materials, a source category for 
which BACM is not currently required based on the information available 
to EPA to date. A number of these deficiencies are discussed in more 
detail in the TSD.
1. BACM-Related Deficiencies For Open Areas
a. Recreational Off-Highway Vehicle Activity
    Recreational off-highway vehicle (OHV) \4\ activity causes much of 
the PM10 emissions from open areas in Imperial County. Rule 
804 regulates only a small portion of these emissions.\5\ The vast 
majority of the OHV emissions in Imperial County are addressed only by 
requirements in Rule 800 Section F.5 for dust control plans (DCPs) for 
sources under the control of BLM. While BLM is required to describe in 
the DCPs the dust control measures that it intends to implement, BLM is 
not required to implement any specific BACM-level controls for OHV use, 
and ICAPCD has not provided an analysis of BACM for OHV activity.
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    \4\ As used in this discussion and in the TSD, the term ``off-
highway vehicle'' or OHV includes all vehicles subject to the 
exemption in Rule 800 Section E.6 for recreational use of public 
lands in Imperial County.
    \5\ This small portion includes some emissions from OHV activity 
in Ocotillo Wells State Park where Rule 804 is apparently not being 
implemented even though State lands are not exempted from the rule's 
requirements.
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    ICAPCD must provide an analysis of potential BACM controls for OHV 
activity in open areas and on unpaved

[[Page 8011]]

roads and paths that are exempt from the specific requirements and 
measures in Rules 804 and 805 and identify, adopt and submit any 
appropriate revisions to Rules 800, 804 and 805. Such analysis should 
address as its starting point measures in EPA's 1992 RACM guidance at 
57 FR 18070 (April 28, 1992) and analogous requirements in other 
geographical areas such as Arizona Revised Statute Sec.  49-457.03 and 
Clark County Air Quality Regulations, Section 90. ICAPCD should 
evaluate 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 that are particularly likely to impact 
populations, and restricting OHV activity during summer months when 
there is virtually no rain to reform surface crusts. In addition, 
ICAPCD must implement Rules 804 and 805 on all State lands used by OHVs 
or demonstrate in its BACM analysis that an exemption for OHV activity 
on such lands is appropriate.
    Please see Section III.B.1 of our TSD for further discussion of 
this deficiency.
b. Definition of ``Disturbed Surface''
    The term ``disturbed surface area'' is used in several Regulation 
VIII rules but is never defined. For example, Rule 804 applies to a 
source category for which BACM is required and relies on the undefined 
term to describe rule applicability in Rule 804 Section B. In order to 
ensure that these rules are enforceable at a BACM level, ICAPCD must 
define ``disturbed surface area'' as do, for example, SJVAPCD Rule 8010 
and SCAQMD Rule 403.
2. BACM-Related Deficiencies for Unpaved Roads
a. Unpaved Non-Farm Roads
    The CAA requires ICAPCD to implement BACM by 2008 (i.e., four years 
after reclassification to serious).\6\ Rule 805 Section E.7 allows the 
County until 2015 to stabilize heavily-travelled unpaved roads. This 
schedule is inconsistent with the statutory requirement and ICAPCD has 
not provided adequate evidence that this schedule is as expeditious as 
practicable, based upon economic feasibility or any other appropriate 
consideration. In evaluating economic feasibility of a measure that 
depends on public funding, EPA considers past funding of similar 
activities and availability of funding sources to determine whether 
public agencies have made good faith efforts to expeditiously implement 
the available control measures. ICAPCD must expedite the schedule for 
implementation of this measure or demonstrate good faith efforts to 
increase funding and priority of road stabilization projects consistent 
with national guidance. Please see Section III.B.3 of our TSD for 
further discussion of this deficiency.
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    \6\ On August 11, 2004, EPA reclassified Imperial County as 
serious nonattainment for PM10. 69 FR 48835. Since 2008 
has passed, BACM is now required to be implemented as expeditiously 
as practicable. Delaney v. EPA, 898 F.2d 687 (9th Cir. 1990).
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    Rule 805 Section E.7's requirement to stabilize all non-exempt 
unpaved County roads is also not adequately enforceable as currently 
structured. If ICAPCD retains the same structure, it must revise Rule 
805 Section E.7 to clarify that the County must: (a) Implement (and not 
just submit) a stabilization plan; (b) stabilize different unpaved 
roads each year; and (c) maintain all stabilized roads.
b. Unpaved Farm Roads and Traffic Areas
    Rule 805 Section D.2 exempts agricultural roads and traffic areas 
from the opacity and stabilization requirements applicable to non-
agricultural operation sites. Farm roads and traffic areas are only 
required to implement a CMP from the menus for unpaved roads and 
traffic areas in Rule 806. In contrast, for example, SJVAPCD requires 
that CMPs be implemented to meet opacity and stabilization requirements 
at the following thresholds: Unpaved farm roads with >= 75 VDT or >= 25 
average daily vehicle trips by three or more axle vehicles; unpaved 
traffic areas with >= 50 average daily vehicle trips (on an annual 
basis) or >= 25 average daily vehicle trips (on an annual basis) by 
three or more axle vehicles. 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.
    Rule 806 Sections E.3 and E.4 list CMPs intended to control 
emissions from agricultural unpaved roads and traffic areas but these 
measures are broadly defined and there is no other mechanism in the 
rule to ensure specificity. The absence of sufficiently defined 
requirements makes it difficult for regulated parties to understand and 
comply with the requirements, and makes it difficult for ICAPCD or 
others to verify compliance and to enforce the requirements if 
necessary. The lack of specificity similarly renders it difficult to 
assess whether the measures constitute BACM level controls. ICAPCD must 
revise Rule 806 to ensure that unpaved road and traffic area CMPs are 
enforceable and are implemented at a BACM level or demonstrate why such 
a rule revision is not necessary. SJVAPCD Rule 4550, for example, 
relies on an application submittal and approval process to ensure 
sufficient specificity of the particular measures implemented at each 
source. Great Basin Unified Air Pollution Control District (GBUAPCD) 
Rule 502 also has an application submittal and approval process. 
Alternatively, there may be another mechanism to ensure adequate 
specificity such as by revising and clarifying ICAPCD's CMP application 
forms.
c. Border Patrol Roads
    Rule 800 Section F.6.c exempts roads owned or operated by BP from 
Rule 805 requirements that are ``inconsistent with BP authority and/or 
mission.'' It is not clear what this exemption is intended to address, 
or how it would be implemented and enforced, particularly because both 
BP and ICAPCD staff have informally informed EPA that BP does not own 
or operate any roads in Imperial County. ICAPCD must either remove this 
exemption or narrow the exemption to specific mission activities and 
demonstrate that the exemption is minimized and necessary, consistent 
with BACM requirements.
3. BACM-Related Deficiencies for Agricultural Lands
a. Tilling and Harvesting
    Rule 806 Sections E.1 and E.2 list CMPs intended to control 
emissions from agricultural land preparation and cultivation (including 
tilling), and harvest activities, but these measures are broadly 
defined and there is no other mechanism in the rule to ensure 
specificity. The absence of sufficiently defined requirements makes it 
difficult for regulated parties to understand and comply with the 
requirements, and makes it difficult for ICAPCD or others to verify 
compliance and to enforce the requirements if necessary. The lack of 
specificity similarly renders it difficult to assess whether the 
measures constitute BACM level controls. ICAPCD must revise Rule 806 to 
ensure that tilling and harvesting CMPs are enforceable and are 
implemented at a BACM level or demonstrate why such a rule revision is 
not necessary. SJVAPCD Rule 4550, for example, relies on an application 
submittal and approval process to ensure sufficient specificity of the 
particular measures implemented at each source. GBUAPCD Rule 502 also 
has an application submittal and

[[Page 8012]]

approval process. Alternatively, there may be another mechanism to 
ensure adequate specificity such as by revising and clarifying ICAPCD's 
CMP application forms.
    In addition, Rule 806 Section E requires one CMP from the ``land 
preparation and cultivation'' category and one CMP from the ``harvest'' 
category, while SJVAPCD Rule 4550 requires an additional CMP from the 
``cropland-other'' category. GBUAPCD Rule 502 also requires that one 
CMP each be selected from the ``land preparation and cultivation,'' 
``harvest,'' and the ``cropland-other'' categories. ICAPCD must 
similarly require an additional CMP for cropland, or demonstrate why 
that is not appropriate.
b. Windblown Dust
    Windblown dust from non-pasture agricultural lands is also a 
significant source of PM10 that requires BACM independent of 
agricultural tilling. The CMPs in Rule 806 Section E, however, mainly 
control emissions by reducing the number of vehicle passes across 
fields, and sources are not required to select BACM level practices for 
controlling windblown dust from active or fallow agricultural fields. 
ICAPCD must revise Rule 806 to require BACM level windblown dust 
controls. In general, EPA believes that the evaluation of BACM level 
controls for a particular source or activity should include 
consideration of U.S. Department of Agriculture (USDA) approved 
conservation systems and activities. Although these guidelines may not 
specifically be designed to minimize air pollution, they are intended 
to be feasible and effective techniques that will reduce windblown 
dust, and thus would be appropriate measures to consider for BACM for 
such sources or activities for PM10. SCAQMD Rule 403 
provides an example of such controls. Please see Section III.B.4 in our 
TSD for further discussion of this deficiency.
4. Non-BACM Deficiency
    Rule 802 Section D.1 allows the Air Pollution Control Officer 
(APCO) to set aside controls that might be used instead of water to 
stabilize surfaces of bulk materials. This discretion allows ICAPCD to 
approve alternatives to the applicable SIP without following the SIP 
revision process described in CAA section 110. Moreover, ICAPCD has not 
demonstrated why such discretion is needed for measures such as 
covering, enclosing or sheltering material piles. While we prefer 
removal of the exemption and APCO discretion, SJVAPCD Rule 8031 
remedies the enforceability issue by requiring EPA approval.

D. EPA Recommendations To Further Improve the Rules

    Our TSD describes additional rule revisions that we recommend for 
the next time ICAPCD modifies the rules, but are not the basis for 
disapproval at this time.

III. 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 seven inter-related Regulation VIII 
rules to strengthen 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 seven 
inter-related Regulation VIII rules under sections 110(k)(3), 110(a) 
and 189(a)(1)(C) and (b)(1)(B) for the reasons set forth in Section 
II.C. of this proposed rule. 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 
set forth in sections II.C.1 through 3 of this proposed rule within 18 
months of the disapproval. These sanctions would be imposed according 
to 40 CFR 52.31. A final disapproval would also trigger the 2-year 
clock for the federal implementation plan (FIP) requirement under 
section 110(c). The deficiency identified in Section II.C.4 of this 
proposed rule would not trigger sanctions or a FIP obligation at this 
time because it does not appear that it is associated with SIP 
revisions that are required by the CAA.
    Note that the submitted rules have been adopted by ICAPCD, and 
EPA's final limited disapproval would not prevent ICAPCD from enforcing 
them.
    We will accept comments from the public on our proposed limited 
approval and limited disapproval action for 30 days from publication in 
the Federal Register.

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 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 or disapprovals under 
section 110 and subchapter I, part D of the Clean Air Act do not create 
any new requirements but simply approve or disapprove requirements that 
the State is already imposing. Therefore, because the proposed Federal 
SIP limited approval/limited disapproval 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 limited approval/limited disapproval 
action

[[Page 8013]]

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 and disapprove 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 proposes to approve or disapprove 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, Particulate matter, Reporting and recordkeeping 
requirements.

    Authority:  42 U.S.C. 7401 et seq.

    Dated: February 10, 2010.
Jared Blumenfeld,
Regional Administrator, Region IX.
[FR Doc. 2010-3513 Filed 2-22-10; 8:45 am]
BILLING CODE 6560-50-P


