E7-14555. Revisions To the Arizona State Implementation Plan, Pinal County Air Quality Control District

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is finalizing 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). This action was proposed in the Federal Register on October 17, 2006 and concerns particulate matter (PM-10) emissions from fugitive dust. Under authority of the Clean Air Act as amended in 1990 (CAA or the Act), this action simultaneously approves local rules that regulate these emission sources and directs Arizona to correct rule deficiencies.

DATES:

Effective Date: This rule is effective on August 31, 2007.

ADDRESSES:

EPA has established docket number EPA-R09-OAR-2006-0729 for this action. The index to the docket is available electronically at http://www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT:

Francisco Dóñez, EPA Region IX, [phone], [e-mail].

SUPPLEMENTARY INFORMATION:

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

I. Proposed Action

On October 17, 2006 (71 FR 60934), EPA proposed a limited approval and limited disapproval of the following rules that were submitted for incorporation into the Arizona SIP.

Local agency	Rule No.	Rule title	Adopted	Submitted
PCAQCD	4-2-020	General [Fugitive Dust]	06/29/93	11/27/95
PCAQCD	4-2-030	Definitions [Fugitive Dust]	06/29/93	11/27/95
PCAQCD	4-2-040	Standards [Fugitive Dust]	06/29/93	11/27/95
PCAQCD	4-2-050	Monitoring and Records [Fugitive Dust]	05/14/97	10/07/98

We proposed a limited approval because we determined that these rules improve the SIP and are largely consistent with the relevant CAA requirements. We simultaneously proposed a limited disapproval because some rule provisions conflict with section 110 and part D of the Act. These provisions include the following:

1. The exemption of agricultural activities from fugitive dust rules without justification in Rules 4-2-020 and 4-2-030.

2. Expression of rule requirements in highly general terms, using the vaguely defined criterion of “reasonable precaution,” in Rules 4-2-030 and 4-2-040.

3. The absence of recordkeeping provisions in Rule 4-2-050.

Our proposed action contains more information on the basis for this rulemaking and on our evaluation of the submittal.

II. Public Comments and EPA Responses

EPA's proposed action provided a 30-day public comment period. During this period, we received comments from the following parties.

1. Donald P. Gabrielson, Pinal County Air Quality Control District (PCAQCD); letter dated November 16, 2006 and received November 16, 2006.

2. Susan Asmus, National Association of Home Builders (NAHB); letter dated November 15, 2006 and received November 16, 2006.

The comments and our responses are summarized below.

Comment #1: PCAQCD commented that EPA's proposed rule incorrectly stated that there are no previous versions of Rules 4-2-020, 4-2-030, 4-2-040, and 4-2-050 in the SIP. The comment pointed out that EPA approved Pinal County Regulation 7-3-1.2 (Fugitive Dust) into the SIP on November 15, 1978 (43 FR 53034). Regulation 7-3-1.2 contains provisions similar to those in the submitted version of 4-2-040.

Response #1: EPA acknowledges that this correction to our proposed rule is accurate. However, this error does not have any substantive impact on our proposed action.

Comment #2: PCAQCD commented that the effective agricultural exemption in Rules 4-2-020 and 4-2-030 was removed in a subsequent amendment of these rules, adopted on January 24, 2003. However, these amended rules were not submitted as SIP elements.

Response #2: EPA acknowledges the 2003 amendments to Rules 4-2-020 and 4-2-030. However, we can only act on rules that have been submitted by the state as SIP amendments. As this comment indicates, the 2003 revisions were never submitted to EPA for inclusion in the SIP. If PCAQCD submits the 2003 version of these rules as a SIP amendment, our objection to the agricultural exemption will be resolved.

Comment #3: PCAQCD disagreed that the definition and use of “reasonable precaution” in Rules 4-2-030 and 4-2-040, respectively, is not sufficiently clear or enforceable. They commented that formulating specific requirements for every dust-generating activity would be impractical.

Response #3: In our General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990 we explain that procedures for determining compliance with a rule must be “sufficiently specific and nonsubjective so that two independent entities applying the procedures would obtain the same result.” See 57 FR 13498, 13568 (April 16, 1992). A SIP must also include “clear, unambiguous, and measurable requirements” for ensuring that sources are in compliance with control measures (ibid).

These rules do not meet EPA's enforceability criteria because they do not establish any standards by which to gauge source compliance with implementation of reasonable precautions. Rules 4-2-030 and 4-2-040 allow Executive Officer discretion in determining when measures have “effectively prevented” the emission of fugitive dust. EPA considers such Executive Officer discretion a violation of Clean Air Act section 110(a)(2)(A).

In contrast, analogous rules in other areas describe specific requirements for significant sources of PM-10 by source category. Examples of district rules containing specific source category requirements include:

• Maricopa County Environmental Services Department, Arizona (MCESD), Rule 310 (Fugitive Dust).
• San Joaquin Valley Unified Air Pollution Control District, California (SJVUAPCD), Regulation 8 (Fugitive PM-10 Prohibitions).

○ Rule 8021 (Construction, Demolition, Excavation, Extraction, and Other Earthmoving Activities)

○ Rule 8031 (Bulk Materials)

○ Rule 8041 (Carryout and Trackout)

○ Rule 8051 (Open Areas)

○ Rule 8061 (Paved and Unpaved Roads)

○ Rule 8071 (Unpaved Vehicle/Equipment Traffic Areas)

○ Rule 8081 (Agricultural Sources)

• South Coast Air Quality Management District, California (SCAQMD), Rule 403 (Fugitive Dust).
• Clark County, Nevada.

○ Section 90 (Fugitive Dust From Open Areas and Vacant Lots)

○ Section 91 (Fugitive Dust From Unpaved Roads, Unpaved Alleys, and Unpaved Easement Roads)

○ Section 92 (Fugitive Dust From Unpaved Parking Lots, Material Handling and Storage Yards, and Vehicle and Equipment Storage Yards)

○ Section 93 (Fugitive Dust From Paved Roads and Street Sweeping Equipment)

○ Section 94 (Permitting and Dust Control for Construction Activities)

It is PCAQCD's obligation to consider their own inventory and establish specific BACM requirements for significant source categories. EPA will work with PCAQCD to identify measures that are appropriate in light of local circumstances.

Comment #4: PCAQCD disagreed with EPA's assertion in our proposed rule that the absence of recordkeeping provisions in Rule 4-2-050 constitutes a rule deficiency. They further commented that the “reasonable precaution” standard, combined with monitoring information, is sufficient to ascertain compliance with these rules.

Response #4: Recordkeeping provisions in prohibitory rules provide the main instruments for effective enforcement of regulatory requirements. Recordkeeping is needed in order to verify compliance with the requirements or limits established by the rule. Section 110(a) of the Clean Air Act requires the inclusion of recordkeeping measures in any submitted SIP rule. Though recordkeeping requirements for fugitive dust may not be as detailed as those in typical stationary source rules, some feasible recordkeeping provisions are nevertheless required. Examples of district rules containing recordkeeping requirements include:

• Maricopa County Environmental Services Department, Arizona (MCESD), Rule 310 (Fugitive Dust).
• San Joaquin Valley Unified Air Pollution Control District, California (SJVUAPCD), Regulation 8 (Fugitive PM-10 Prohibitions), Rule 8011 (General Requirements).
• South Coast Air Quality Management District, California (SCAQMD), Rule 403 (Fugitive Dust).
• Clark County, Nevada.

○ Section 90 (Fugitive Dust From Open Areas and Vacant Lots)

○ Section 91 (Fugitive Dust From Unpaved Roads, Unpaved Alleys, and Unpaved Easement Roads)

○ Section 92 (Fugitive Dust From Unpaved Parking Lots, Material Handling and Storage Yards, and Vehicle and Equipment Storage Yards)

○ Section 93 (Fugitive Dust From Paved Roads and Street Sweeping Equipment)

○ Section 94 (Permitting and Dust Control for Construction Activities)

Comment #5: PCAQCD commented that EPA has no basis to impose sanctions on the basis of the currently submitted rules. They noted that the currently approved SIP Rule R7-3-1.2 also applies a “reasonable precaution” standard with respect to agricultural activity, and that EPA is not justified in starting a sanctions clock for the current rules, in which the “reasonable precaution” requirement is repeated.

Response #5: We approved Rule 7-3-1.2 into the SIP in 1978. Since that time, national policy on particulate matter and fugitive dust requirements has evolved. Sections 172(c)(1) and 189(a) of the CAA require moderate PM-10 nonattainment areas to implement reasonably available control measures (RACM), including reasonably available control technology (RACT) for stationary sources of PM-10. Section 189(b) requires that serious PM-10 nonattainment areas, in addition to meeting the RACM/RACT requirements, implement best available control measures (BACM), including best available control technology (BACT). In the northern part of PCAQCD is the Apache Junction portion of the Phoenix metropolitan area, which is a serious PM-10 nonattainment area. In the northeastern part of PCAQCD is Hayden-Miami, which is a moderate PM-10 nonattainment area. PCAQCD regulates certain sources of PM-10 within both nonattainment areas.

EPA's guidance for both moderate and serious PM-10 nonattainment areas requires that RACM/RACT and BACM/BACT be implemented for all source categories unless the State demonstrates that a particular source category does not contribute significantly to PM-10 levels in excess of the NAAQS (i.e., de minimis sources). See the General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990, 57 FR 13498, 13540 (April 16, 1992) and Addendum to the General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990, 59 FR 41998, 42011 (August 16, 1994).

The potential to emit of the emission activities subject to PCAQCD Rules 4-2-020, 4-2-030, 4-2-040, and 4-2-050 comprises a small but significant portion of the total PM-10 emissions in the Phoenix metropolitan area, according to the August 1999 Apache Junction Portion of the Metropolitan Phoenix PM-10 Serious State Implementation Plan (PM-10 Plan). Therefore, Rules 4-2-020, 4-2-030, 4-2-040, and 4-2-050 must meet BACM/BACT control levels. Under this standard, Rules 4-2-020, 4-2-030, 4-2-040, and 4-2-050 are not wholly approvable for inclusion in the SIP, and per Clean Air Act Section 179, a sanctions clock must be started.

We also note the following from the preamble to the recently promulgated PM standards: “The United States Department of Agriculture (USDA) has been working with the agricultural community to develop conservation systems and activities to control coarse particle emissions. Based on current ambient monitoring information, these USDA-approved conservation systems and activities have proven to be effective in controlling these emissions in areas where coarse particles emitted from agricultural activities have been identified as a contributor to violation of the NAAQS. The EPA concludes that where USDA-approved conservation systems and activities have been implemented, these systems and activities have satisfied the Agency's reasonable available control measure and best available control measure requirements. The EPA believes that in the future, when properly implemented, USDA-approved conservation systems and activities should satisfy the requirements for reasonably available control measures or best available control measures.”

Comment #6: NAHB sent a comment supporting EPA's proposed action.

Response #6: EPA acknowledges this comment.

III. EPA Action

No comments were submitted that change our assessment of the rules as described in our proposed action. Therefore, as authorized in sections 110(k)(3) and 301(a) of the Act, EPA is finalizing a limited approval of the submitted rules. This action incorporates the submitted rule into the Arizona SIP, including those provisions identified as deficient. As authorized under section 110(k)(3), EPA is simultaneously finalizing a limited disapproval of the rules. As a result, sanctions will be imposed unless EPA approves subsequent SIP revisions that correct the rule deficiencies within 18 months of the effective date of this action. These sanctions will be imposed under section 179 of the Act according to 40 CFR 52.31. In addition, EPA must promulgate a federal implementation plan (FIP) under section 110(c) unless we approve subsequent SIP revisions that correct the rule deficiencies within 24 months. Note that the submitted rules have been adopted by the PCAQCD, and EPA's final limited disapproval does not prevent the local agency from enforcing them.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”

B. Paperwork Reduction Act

This 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 promulgated 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 approves 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 final 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.

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 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.

J. Congressional Review Act

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). This rule will be effective August 31, 2007.

K. Petitions for Judicial Review

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 October 1, 2007. 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: June 25, 2007.

Wayne Nastri,

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 D—Arizona

2. Section 52.120 is amended by adding paragraphs (c)(84)(i)(L) and (107)(i)(A)( 2) to read as follows:

§ 52.120

Identification of plan.

* * * * *

(c) * * *

(84) * * *

(i) * * *

(L) Rules 4-2-020, 4-2-030, and 4-2-040, adopted on June 29, 1993.

* * * * *

(107) * * *

(i) * * *

(A) * * *

(2) Rule 4-2-050, adopted on May 14, 1997.

* * * * *