03-4376. Revisions to the California State Implementation Plan, Imperial County Air Pollution Control District

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is taking direct final action to approve a revision to the Imperial County Air Pollution Control District (ICAPCD) portion of the California State Implementation Plan (SIP). The revision concerns a rule controlling particulate matter (PM) emissions from livestock feed yard operations. We are approving a local rule that regulates these emission sources under the Clean Air Act as amended in 1990 (CAA or the Act).

DATES:

This rule is effective on April 28, 2003 without further notice, unless EPA receives adverse comments by March 28, 2003. If we receive such comment, we will publish a timely withdrawal in the Federal Register to notify the public that this rule will not take effect.

ADDRESSES:

Mail comments to Andy Steckel, Rulemaking Office Chief (AIR-4), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901.

You can inspect copies of the submitted SIP revisions and EPA's technical support documents (TSDs) at our Region IX office during normal business hours. You may also see copies of the submitted SIP revisions at the following locations: Environmental Protection Agency, Air Docket (6102), Ariel Rios Building, 1200 Pennsylvania Avenue, NW, Washington DC 20460; California Air Resources Board, Stationary Source Division, Rule Evaluation Section, 1001 “I” Street, Sacramento, CA 95814; and, Imperial County Air Pollution Control District, 150 South 9th Street, El Centro, CA 92243.

FOR FURTHER INFORMATION CONTACT:

Jerald S. Wamsley, Rulemaking Office (AIR-4), U.S. Environmental Protection Agency, Region IX, [phone].

SUPPLEMENTARY INFORMATION:

Throughout this document, “we,” “us” and “our” refer to EPA.

Table of Contents

I. The State's Submittal

A. What rule did the State submit?

B. Are there other versions of this rule?

C. What is the purpose of the submitted rule revisions?

II. EPA's Evaluation and Action

A. How is EPA evaluating the rule?

B. Does the rule meet the evaluation criteria?

C. EPA recommendations to further improve the rule.

D. Public comment and final action.

III. Background Information

Why was this rule submitted?

IV. Stationary and Executive Order Reviews.

I. The State's Submittal

A. What Rule Did the State Submit?

Table 1 lists the rules we are approving with the dates that they were adopted by the local air agencies and submitted by the California Air Resources Board (CARB).

Table 1.—Submitted Rule

Local agency	Rule #	Rule title	Adopted	Submitted
ICAPCD	420	Livestock Feed Yards	08/13/02	10/16/02

EPA found this rule submittal met the completeness criteria in 40 CFR part 51, appendix V on December 3, 2002. These criteria must be met before formal EPA review may begin.

B. Are There Other Versions of These Rules?

There is a version of ICAPCD Rule 420 in the SIP. On July 11, 2001, EPA gave a limited approval of Rule 420 and adopted it into the SIP. Simultaneously, EPA gave a limited disapproval to Rule 420 (66 FR 36170). There have been no other submittals of Rule 420 prior to the one we are acting on today.

C. What Is the Purpose of the Submitted Rule Revisions?

ICAPCD Rule 420 is a rule designed to limit particulate matter (PM) emissions at livestock feedyard operations. The rule requires that feed yards limit their dust emissions using procedures to maintain soil moisture and remove manure. The TSD has more information about this rule. The following is EPA's evaluation and final action for this rule.

II. EPA's Evaluation and Action

A. How Is EPA Evaluating the Rule?

Generally, SIP rules must be enforceable (see section 110(a) of the Act), must meet Reasonably Available Control Measure (RACM) requirements for nonattainment areas (see section 189), and must not relax existing requirements (see sections 110(l) and 193). The ICAPCD regulates an PM nonattainment area (see 40 CFR part 81), so Rule 420 must fulfill RACM.

We used the following guidance and policy documents to define our specific enforceability and RACT requirements:

1. Portions of the proposed post-1987 ozone and carbon monoxide policy that concern RACT, 52 FR 45044, November 24, 1987.

2. “Issues Relating to 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.

B. Does the Rule Meet the Evaluation Criteria?

EPA's July 2001 limited approval and disapproval identified the following deficiencies that must be remedied before we may grant full approval:

—The rule contains inappropriate Executive Officer discretion allowing for exceptions to compliance with rule's moisture content standard;

—the rule does not have a definition of “rainy period”; and,

—the rule lacks a test method to determine compliance with the moisture content standard.

Consequently, ICAPCD's August 2002 amendments revised the exceptions and test methods portions of the rule. An annual limited exception is provided at D.1. for up to 60 days providing an alternative dust control plan complies with Rule 401—Opacity and Rule 407—Nuisance. At D.2. an exception to the maximum 40% soil moisture requirement is allowed during rainy period as defined in Rule 101—Definitions. The test methods for compliance were detailed and expanded to prescribe how manure moisture content should be determined.

As a result of these revisions, we believe Rule 420 is consistent with the relevant policy and guidance regarding enforceability and SIP relaxations. We are not reviewing the rule as a RACM measure, because Imperial County has yet to submit its moderate area PM plan for our review. Once we have received this PM plan and its supporting emissions inventory information, we will evaluate Rule 420 as a RACM in the context of this information. The TSD has more information on our rule evaluation.

C. EPA Recommendations to Further Improve the Rules

EPA has no suggested recommendations.

D. Public Comment and Final Action

As authorized in section 110(k)(3) of the Act, EPA is fully approving the submitted rule because we believe it fulfills all relevant requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this Federal Register, we are simultaneously proposing approval of the same submitted rule. If we receive adverse comments by March 28, 2003, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on April 28, 2003. This action will incorporate Rule 420 into the federally enforceable SIP.

III. Background Information

Why Was This Rule Submitted?

Imperial County is an area designated nonattainment for PM-10 and is classified as a moderate nonattainment area. Section 189(a) of the CAA requires moderate PM-10 nonattainment areas to adopt reasonably available control measures (RACM), including reasonably available control technology (RACT) for stationary sources of PM-10. Table 2 lists some of the national milestones leading to the submittal of this local agency rule.

Table 2.—PM-10 Nonattainment Milestones

Date	Event
March 3, 1978	EPA promulgated a list of total suspended particulate (TSP) nonattainment areas under the provisions of the 1977 Clean Air Act (1977 CAA), (43 FR 8964; 40 CFR 81).
July 1, 1987	EPA replaced the TSP standards with new PM standards applying only to PM up to 10 microns in diameter (PM-10). (52 FR 24672).
November 15, 1990	Clean Air Act Amendments of 1990 were enacted. Pub. L. 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 were designated nonattainment by operation of law and classified pursuant to section 188(a).
December 10, 1993	Section 189(a)(1)(C) requires that PM-10 nonattainment areas implement all reasonably available control measures (RACM) by this date.

IV. Stationary and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 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 action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this 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 approves 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 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 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. This 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 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.).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 28, 2003. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Intergovernmental relations
• Particulate matter
• Reporting and recordkeeping requirements

Dated: February 3, 2003.

Alexis Strauss,

Acting Regional Administrator, Region IX.

Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:

PART 52—[AMENDED]

1. The authority citation for part 52 continues to read as follows:

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

Subpart F—California

2. Section 52.220 is amended by adding paragraph (c)(302)(i)(A)( 3), to read as follows:

§ 52.220

Identification of plan.

* * * * *

(c) * * *

(302) * * *

(i) * * *

(A) * * *

(3) Rule 420 adopted on November 11, 1985, and amended on August 13, 2002.

* * * * *