[Federal Register Volume 71, Number 200 (Tuesday, October 17, 2006)]
[Proposed Rules]
[Pages 60934-60937]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-17233]
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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: www.regulations.gov. Follow the on-
line instructions.
2. E-mail: [email protected].
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 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
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 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, [email protected].
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
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Rule Rule title Adopted Submitted
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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].
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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
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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]
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