2010-16235. Approval and Promulgation of Implementation Plans; State of Iowa

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

The EPA is approving a revision to the Iowa State Implementation Plan (SIP). The purpose of this revision is to update the Polk County Board of Health Rules and Regulations, Chapter V, Air Pollution. These revisions reflect updates to the Iowa statewide rules previously approved by EPA and will ensure consistency between the applicable local agency rules and Federally-approved rules. This rulemaking also ensures Federal enforceability of the applicable parts of the local agency's “Air Pollution” rules.

DATES:

This direct final rule will be effective September 7, 2010, without further notice, unless EPA receives adverse comment by August 5, 2010. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R07-OAR-2010-0156, by one of the following methods:

1. http://www.regulations.gov. Follow the on-line instructions for submitting comments.

2. E-mail: [e-mail].

3. Mail or Hand Delivery: Tracey Casburn, Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101.

Instructions: Direct your comments to Docket ID No. EPA-R07-OAR-2010-0156. 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.regulations.gov,, 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 through http://www.regulations.gov or e-mail information that you consider to be CBI or otherwise protected. The http://www.regulations.gov Web site is an “anonymous access” system, 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 http://www.regulations.gov, your e-mail address will be automatically 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.

Docket: All documents in the electronic docket are listed in the http://www.regulations.gov index. 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 http://www.regulations.gov or in hard copy at the Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101. The Regional Office's official hours of business are Monday through Friday, 8 to 4:30 excluding Federal holidays. The interested persons wanting to examine these documents should make an appointment with the office at least 24 hours in advance.

FOR FURTHER INFORMATION CONTACT:

Tracey Casburn at [phone], or by e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

Throughout this document “we,” “us,” or “our” refer to EPA. This section provides additional information by addressing the following questions:

I. What is being addressed in this document?

II. What revisions is EPA approving?

III. What action is EPA taking?

IV. What action is EPA not taking?

V. Statutory and Executive Order Reviews

I. What is being addressed in this document?

The State requested EPA approval of the 2009 revisions to the local agency's Rules and Regulations, Chapter V, “Air Pollution,” as a revision to the SIP. In order for the local program's “Air Pollution” rules to be incorporated into the Federally-enforceable SIP, on behalf of the local agency, the State must submit the formally adopted regulations and control strategies, which are consistent with State and Federal requirements, to EPA for inclusion in the SIP. The regulation adoption process generally includes public notice of a public comment period and a public hearing, and formal adoption of the rule by the State authorized rulemaking body. In this case that rulemaking body is the local agency. After the local agency formally adopts the rule, the local agency submits the rulemaking to the State, and then the State submits the rulemaking to EPA for consideration for formal action (inclusion of the rulemaking into the SIP). EPA must provide public notice and seek additional public comment regarding the proposed Federal action on the State's submission.

EPA received the request from the State to adopt the 2009 local air agency rule revisions into the SIP on September 14, 2009. The revisions were adopted by the local agency on July 28, 2009, and were effective August 6, 2009. EPA is approving the requested revisions to the Iowa SIP. The State's request specifically excluded Article VI, subsections 5-16 (n), (o), (p), and Article VIII from consideration by EPA.

II. What revisions is EPA approving?

EPA is approving the 2009 revisions to the Polk County Board of Health Rules and Regulations, Chapter V, “Air Pollution.” The local agency routinely revises its “Air Pollution” regulations to be consistent with the Federally-approved Iowa Administrative Code. The local agency's “Air Pollution” rules were revised as follows:

Article I, section 5-1 was revised to include cross references to approved State rules. Section 5-2 of the same Article was revised to include amended definitions of “Allowable emissions,” “EPA reference method,” “Disaster,” “Mobile Internal Combustion Engine,” and “Volatile Organic Compounds” (VOCs). These revisions are consistent with State and Federal regulations.

Article II, section 5-4 was revised to include a cross reference to the existing State rule, 567 IAC 23.1(2) which outlines New Source Performance Standard data reporting requirements and responsibilities. This revision is consistent with State and Federal regulations.

Article III, section 5-7 was amended to include revisions to “Open Burning” regulations. The revisions include the addition of a cross reference to the existing State rules in 567 IAC Chapter 23 explaining that the burning of any structure or demolished structure shall be in accordance with 40 CFR 61.145, the National Emission Standards for Hazardous Air Pollutants (NESHAPs) “Standard for Demolition and Renovation” for asbestos control. This revision is consistent with State and Federal regulations.

Article IV, section 5-10 was revised to include a cross reference to the existing State rule at 567 IAC 29.1, the Federal method for visual determination of opacity of emissions. This revision is consistent with State and Federal regulations.

Article VII, subsections 5-18 (a)(3), 5-18(b)(5)(i) and 5-18(b)(7) are revised to include cross references to existing State rules in 567 IAC Chapter 25. A revision to 5-18(b)(7) also includes the adoption date of the most recent Federally promulgated Acid Rain continuous emissions monitoring requirements. These revisions are consistent with State and Federal regulations.

Article IX, subsections 5-23(1), 5-23(2), and 5-23(3) were revised to include methods for the containment and control of fugitive dust, and subsections 5-23(7) and 5-23(8) were added to include methods for the containment and control of fugitive dust. Changes to Section 5-25 clarify that no person shall cause, allow, or permit fugitive dust material to become airborne in such quantities and concentrations that it remains visible in the ambient air, or is deposited beyond the lot line of the property on which it originates. These revisions are consistent with State regulations and Federal requirements. The local agency also added language to subsection 5-26(1) which explains activities that are considered by the local agency as “ordinary travel”, which is exempted from the fugitive dust restrictions. This is a clarification of the exemption and does not affect the stringency of the restriction.

Article X, section 5-33, and subsections 5-33(9) and 5-39(a)(4) were revised to include cross references to approved State and Federal regulations. Subsections 5-33(17) and 5-39(a)(11) were revised to include a construction and operating permit exemption threshold for retail gasoline and diesel fuel handling facilities. The local agency revised the exemption to include only those facilities with a throughput of less than 10,000 gallons per month (based on thirty-day rolling average usage records). The local agency retained the right to review project plans to substantiate the permit exemption to determine that individual sources qualify for the exemption and would not adversely impact air quality. The local agency made this revision as it is more stringent than the existing SIP-approved exemption and is aligned with 40 CFR part 63 subpart CCCCCC. The Iowa Administrative Code currently does not provide for exemptions for retail gasoline stations of any size so that all sources in the source category in Polk County remain subject to the state permitting rule. In any event, the revision addressed in this rulemaking in the county rule makes the exemption more stringent, and is therefore approvable.

Also in Article X, subsections 5-33(55) and 5-39(a)(48) were revised to add a construction and operating permit exemption for cold solvent cleaning machines that are not in-line cleaning machines. Subsections 5-33(56) and 5-39(a)(49) were revised to add a construction and operating permit exemption for emissions from mobile agricultural and construction internal combustion engines that are operated only for repair or maintenance purposes at equipment repair shops or equipment dealerships. Subsection 5-35(d) was revised to reduce the amount of time the owner or operator has to notify the local program prior to the movement of portable equipment for which an operating permit has been issued. The notification time was reduced from 30 to 14 days. Subsections 5-36(1)(a) and 5-36(1)(a)(1) were revised to clarify what the owner or operators' responsibilities are when applying for a conditional operating permit. These revisions are consistent with SIP-approved State regulations.

Section 5-49 was added to Article X to allow for electric utilities in Polk County to operate generators at a utility substation, with a total combined capacity not to exceed 2 megawatts in capacity, for a period of not longer than 10 days and only for the purpose of providing electricity generation in the event of a sudden and unforeseen disaster that has disabled standard transmission of electricity to the public. EPA previously approved this allowance in a statewide rule after EPA determined that this allowance would result in insignificant emissions increases. We believe the Polk County revision is also approvable.

III. What action is EPA taking?

EPA is approving these revisions to the Polk County Board of Health Rules and Regulations, Chapter V, Air Pollution. These changes are consistent with the Federally-approved Iowa SIP.

The state submittal has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submittal also satisfied the completeness criteria of 40 CFR part 51, appendix V. The revisions meet the substantive SIP requirements of the Clean Air Act (CAA), including section 110 and implementing regulations.

EPA is processing this action as a direct final action because the revisions make changes to the existing rules which are noncontroversial. Therefore, we do not anticipate any adverse comments. Please note that if EPA receives adverse comment on part of this rule and if that part can be severed from the remainder of the rule, EPA may adopt as final those parts of the rule that are not the subject of an adverse comment.

IV. What action is EPA not taking?

The State requested that EPA take action to approve the local agency's revisions to Article XVI section 5-75. Section 5-75 outlines the local agency's enforcement of criminal and civil penalties. As EPA does not rely on the local agency's authority, but relies on its own authority, to implement and enforce the requirements of the CAA, EPA is not taking action on the requested revisions to Article XVI section 5-75.

V. Statutory and Executive Order Reviews

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• 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);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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 action 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 7, 2010. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action 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. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. 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
• Carbon monoxide
• Incorporation by reference
• Intergovernmental relations
• Lead
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides
• Volatile organic compounds

Dated: June 18, 2010.

Karl Brooks,

Regional Administrator, Region 7.

40 CFR part 52 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 Q—Iowa

2. In § 52.820 the table in paragraph (c) is amended by revising the entry for “Chapter V” under the heading “Polk County” to read as follows:

§ 52.820

Identification of plan.

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(c) * * *

EPA—Approved Iowa Regulations

Iowa citation	Title	State effective date	EPA approval date	Explanation
Iowa Department of Natural Resources, Environmental Protection Commission [567]
*         *         *         *         *         *         *
Polk County
CHAPTER V	Polk County Board of Health Rules and Regulations Air Pollution Chapter V	08/06/09	07/06/10 [insert FR page number where the document begins]	Article I, Section 5-2, definition of “variance”; Article VI, Sections 5-16(n), (o) and (p); Article VIII; Article IX, Sections 5-27(3) and (4); Article X, Section 5-28, subsections (a) through (c); Article XIII and Article XVI, Section 5-75 are not a part of the SIP.

* * * * *