Revisions to the California State Implementation Plan, San Joaquin Valley Unified Air Pollution Control District, 51303-51306 [05-17196]

Download as PDF Federal Register / Vol. 70, No. 167 / Tuesday, August 30, 2005 / Proposed Rules NW., Washington, DC 20463, (202) 694– 1650 or (800) 424–9530. SUPPLEMENTARY INFORMATION: The Bipartisan Campaign Reform Act of 2002 (‘‘BCRA’’), Pub. L. 107–155, 116 Stat. 81 (March 27, 2002), amended the Federal Election Campaign Act of 1971, as amended (the ‘‘Act’’), 2 U.S.C. 431 et seq., by requiring State, district and local party committees (‘‘State party committees’’) to pay the salaries and wages of employees who spend more than 25 percent of their compensated time per month on activities in connection with a Federal election entirely with Federal funds.1 2 U.S.C. 431(20)(A)(iv) and 441i(b)(1). However, BCRA is silent on what type of funds State party committees must use to pay the salaries and wages of employees who spend some, but not more than 25 percent, of their compensated time per month on activities in connection with a Federal election. The Commission promulgated 11 CFR 106.7(c)(1) and (d)(1)(i), and 300.33(c)(2) to address salaries and wages for both types of employees. Under these rules, State party committees may pay the salaries or wages of employees who spend 25 percent or less of their compensated time each month on these activities entirely with funds that comply with State law. Id. In Shays v. FEC, 337 F. Supp. 2d 28 (D.D.C. 2004), aff’d, No. 04–5352, 2005 WL 1653053 (D.C. Cir. July 15, 2005) (‘‘Shays’’), the District Court invalidated section 300.33(c)(2) because it is inconsistent with BCRA. See Shays, 337 F. Supp. 2d at 114; see also Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842–43 (1984). Although the Court of Appeals affirmed the District Court’s invalidation of the rule, its basis differed from the District Court’s. The Court of Appeals found the Commission’s justification for the rule did not satisfy the requirements of the Administrative Procedure Act, 5 U.S.C. 551 et seq. Shays, No. 04–5352, slip op. at 62, 2005 WL 1653053 (D.C. Cir. July 15, 2005). Before the Court of Appeals decision was issued, the Commission published a Notice of Proposed Rulemaking addressing State party committee payment of certain wages and salaries. Notice of Proposed Rulemaking on State, District, and Local Party Committee Payment of Certain Salaries and Wages, 70 FR 23072 (May 4, 2005). The NPRM offered several proposals as to the proportion of Federal funds that must be used to pay the salaries and wages of State party committee employees who spends 25 percent or less of their compensated time in a month on activities in connection with a Federal election. The comment period for the NPRM ended on June 3, 2005, and a hearing was held on August 4, 2005. Written comments and a transcript of the hearing can be found at http://www.fec.gov/law/ law_rulemakings.shtml#party_salaries. Witnesses at the hearing suggested that the Commission seek additional information that may assist the Commission in its decisionmaking. The Commission is reopening the comment period to allow all interested persons to submit information or comments that may be useful in this rulemaking in light of the Court of Appeals opinion. Dated: August 24, 2005. Michael E. Toner, Vice Chairman, Federal Election Commission. [FR Doc. 05–17156 Filed 8–29–05; 8:45 am] BILLING CODE 6715–01–P 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 Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: 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 Street, San Francisco, CA 94105–3901 or e-mail to steckel.andrew@epa.gov, or submit comments at 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’’. 1 ‘‘Federal funds’’ are funds that are subject to the contribution limitations, source prohibitions, and reporting requirements of the Act. 11 CFR 300.2(g). VerDate Aug<18>2005 15:15 Aug 29, 2005 Jkt 205001 PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 51303 E:\FR\FM\30AUP1.SGM 30AUP1 51304 Federal Register / Vol. 70, No. 167 / Tuesday, August 30, 2005 / Proposed Rules TABLE 1.—SUBMITTED RULES Rule No. Rule title 8011 .................................................... 8021 .................................................... General Requirements .................................................................................... Construction, Demolition, Excavation, Extraction, and Other Earthmoving Activities. Bulk Materials ................................................................................................. Carryout and Trackout .................................................................................... Open Areas ..................................................................................................... Paved and Unpaved Roads ........................................................................... Unpaved Vehicle/Equipment Traffic Areas ..................................................... Agricultural Sources ........................................................................................ 8031 8041 8051 8061 8071 8081 .................................................... .................................................... .................................................... .................................................... .................................................... .................................................... 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. 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 1 The San Joaquin Valley Air Basin is under the jurisdiction of the SJVUAPCD. VerDate Aug<18>2005 15:15 Aug 29, 2005 Jkt 205001 Adopted February 8, 1997, four years after reclassification.2 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. 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 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). 3 The number following the slash (‘‘/’’) in this citation refers to the column on the Federal Register page. PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 Submitted 08/19/04 08/19/04 09/23/04 09/23/04 08/19/04 08/19/04 08/19/04 08/19/04 09/16/04 09/16/04 09/23/04 09/23/04 09/23/04 09/23/04 09/23/04 09/23/04 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 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. E:\FR\FM\30AUP1.SGM 30AUP1 Federal Register / Vol. 70, No. 167 / Tuesday, August 30, 2005 / Proposed Rules 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. 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 SIPapproved 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. 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. 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. VerDate Aug<18>2005 15:15 Aug 29, 2005 Jkt 205001 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 PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 51305 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.). E:\FR\FM\30AUP1.SGM 30AUP1 51306 Federal Register / Vol. 70, No. 167 / Tuesday, August 30, 2005 / Proposed Rules 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 ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 63 [OAR–2002–0083; FRL–7962–2] RIN 2060–AM76 National Emission Standards for Hazardous Air Pollutants for Integrated Iron and Steel Manufacturing Environmental Protection Agency (EPA). ACTION: Proposed rule; amendments. AGENCY: SUMMARY: This action proposes amendments to the national emission standards for hazardous air pollutants (NESHAP) for integrated iron and steel manufacturing. The proposed amendments would add a new compliance option, revise emission limitations, reduce the frequency of repeat performance tests for certain emissions units, add corrective action requirements, and clarify certain monitoring, recordkeeping, and reporting requirements. DATES: Comments. Comments must be received on or before October 31, 2005. Public Hearing. If anyone contacts EPA requesting to speak at a public hearing by September 19, 2005, a public hearing will be held approximately 30 days following publication of this action in the Federal Register. ADDRESSES: Submit your comments, identified by Docket ID No. OAR–2002– 0083, by one of the following methods: • Federal eRulemaking Portal: http:// www.regulations.gov. Follow the on-line instructions for submitting comments. • Agency Web site: http:// www.epa.gov/edocket. EDOCKET, EPA’s electronic public docket and comment system, is EPA’s preferred method for receiving comments. Follow the on-line instructions for submitting comments. • E-mail: a-and-r-docket@epa.gov, Attention Docket ID No. OAR–2002– 0083 and mulrine.phil@epa.gov. • Fax: (202) 566–1741 and (919) 541– 5450. • Mail: U.S. Postal Service, send comments to: EPA Docket Center (6102T), Attention Docket Number OAR–2002–0083, 1200 Pennsylvania Ave., NW., Washington, DC 20460. • Hand Delivery: In person or by courier, deliver comments to: EPA Docket Center (6102T), Attention Docket ID Number OAR–2002–0083, 1301 Constitution Avenue, NW., Room B–102, Washington, DC 20004. Such deliveries are only accepted during the Docket’s normal hours of operation, and special arrangements should be made for deliveries of boxed information. Please include a total of two copies. We request that a separate copy of each public comment also be sent to the contact person for the proposed action listed below see(FOR FURTHER INFORMATION CONTACT). Instructions: Direct your comments to Docket ID No. OAR–2002–0083. EPA’s policy is that all comments received will be included in the public docket without change and may be made available online at http://www.epa.gov/ edocket, including any personal information provided, unless the comment includes information claimed to be confidential business information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through EDOCKET, regulations.gov, or e-mail. The EPA EDOCKET and the Federal regulations.gov websites are ‘‘anonymous access’’ systems, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through EDOCKET or regulations.gov, your email address will be automatically NAIC code1 Category Industry ........................................................ 331111 Federal government .................................... State/local/tribal government ....................... .................. .................. 1 North captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD–ROM you submit. 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. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. (For additional information about EPA’s public docket, visit EDOCKET on-line or see the Federal Register of May 31, 2002 (67 FR 38102). Docket: All documents in the docket are listed in the EDOCKET index at http://www.epa.gov/edocket. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in EDOCKET or in hard copy at the EPA Docket Center, Docket ID Number OAR–2002–0083, EPA West Building, Room B102, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566–1744, and the telephone number for the EPA Docket Center is (202) 566–1742. A reasonable fee may be charged for copying docket materials. Mr. Phil Mulrine, U.S. EPA, Office of Air Quality Planning and Standards, Emission Standards Division, Metals Group (C439–02), Research Triangle Park, NC 27711, telephone (919) 541– 5289, fax number (919) 541–5450, email address: mulrine.phil@epa.gov. FOR FURTHER INFORMATION CONTACT: SUPPLEMENTARY INFORMATION: Regulated Entities. The regulated categories and entities affected by the NESHAP include: Examples of regulated entities Integrated iron and steel mills, steel companies, sinter plants, blast furnaces, basic oxygen process furnace (BOPF) shops. Not affected. Not affected. American Industry Classification System. VerDate Aug<18>2005 15:15 Aug 29, 2005 Jkt 205001 PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 E:\FR\FM\30AUP1.SGM 30AUP1

Agencies

[Federal Register Volume 70, Number 167 (Tuesday, August 30, 2005)]
[Proposed Rules]
[Pages 51303-51306]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-17196]


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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.

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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 
Street, San Francisco, CA 94105-3901 or e-mail to 
steckel.andrew@epa.gov, or submit comments at 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.
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    \1\ The San Joaquin Valley Air Basin is under the jurisdiction 
of the SJVUAPCD.
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    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\
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    \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).
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    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.
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    \3\ The number following the slash (``/'') in this citation 
refers to the column on the Federal Register page.
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    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.
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    \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.
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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.
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    \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.
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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]
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