8008 Federal Register / Vol. 75, No. 35 / Tuesday, February 23, 2010 / Proposed Rules 

environmental impact statement is 

required. A preliminary environmental 

analysis check list supporting this 

determination is available in the docket 

where indicated under ADDRESSES. This 

rule involves establishing a safety zone 

around a fireworks display. We seek any 

comments or information that may lead 

to the discovery of a significant 

environmental impact from this 

proposed rule. 

List of Subjects in 33 CFR Part 165 

Harbors, Marine safety, Navigation 

(water), Reporting and recordkeeping 

requirements, Security measures, 

Waterways. 

For the reasons discussed in the 

preamble, the Coast Guard proposes to 

amend 33 CFR part 165 as follows: 

PART 165—REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

1. The authority citation for part 165 

continues to read as follows: 

Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 

Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 

33 CFR 1.05–1, 6.04–1, 6.04–6 and 160.5; 

Pub. L. 107–295, 116 Stat. 2064; Department 

of Homeland Security Delegation No. 0170.1. 

2. Add § 165.T05–XXXX to read as 

follows: 

165.T05–XXXX Safety Zone; Wicomico 

Community Fireworks, Great Wicomico 

River, Mila, VA. 

(a) Regulated Area. The following area 

is a safety zone: specified waters of the 

Great Wicomico River located within a 

420 foot radius of the fireworks display 

approximately 1⁄2 mile down river of 

Rouge Point Light, at approximate 

position 37°50′31′′ N/076°19′42′′ W 

(NAD 1983) in the vicinity of Mila, VA. 

(b) Definitions. For the purposes of 

this part, Captain of the Port 

Representative means any U.S. Coast 

Guard commissioned, warrant or petty 

officer who has been authorized by the 

Captain of the Port, Hampton Roads, 

Virginia to act on his behalf. 

(c) Regulations. (1) In accordance with 

the general regulations in 165.23 of this 

part, entry into this zone is prohibited 

unless authorized by the Captain of the 

Port, Hampton Roads or his designated 

representatives. 

(2) The operator of any vessel in the 

immediate vicinity of this safety zone 

shall: 

(i) Stop the vessel immediately upon 

being directed to do so by any 

commissioned, warrant or petty officer 

on shore or on board a vessel that is 

displaying a U.S. Coast Guard Ensign. 

(ii) Proceed as directed by any 

commissioned, warrant or petty officer 

on shore or on board a vessel that is 

displaying a U.S. Coast Guard Ensign. 

(3) The Captain of the Port, Hampton 

Roads can be reached through the Sector 

Duty Officer at Sector Hampton Roads 

in Portsmouth, Virginia at telephone 

Number (757) 668–5555. 

(4) The Coast Guard Representatives 

enforcing the safety zone can be 

contacted on VHF–FM marine band 

radio channel 13 (165.65 Mhz) and 

channel 16 (156.8 Mhz). 

(d) Effective Period: This regulation 

will be in effect on July 3, 2010, with 

a rain date of July 4, 2010 from 9 p.m. 

until 10 p.m. 

Dated: February 2, 2010. 

M.S. Ogle, 

Captain, U.S. Coast Guard, Captain of the 

Port, Hampton Roads. 

[FR Doc. 2010–3474 Filed 2–22–10; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2010–0120; FRL–9116–3] 

Revisions to the California State 

Implementation Plan, Imperial County 

Air Pollution Control District 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing a limited 

approval and limited disapproval of 

revisions to the Imperial County Air 

Pollution Control District (ICAPCD) 

portion of the California State 

Implementation Plan (SIP). These 

revisions concern coarse particulate 

matter (PM10) emissions from sources of 

fugitive dust such as construction sites, 

unpaved roads, and disturbed soils in 

open and agricultural areas. 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 

March 25, 2010. 

ADDRESSES: Submit comments, 

identified by docket number EPA–R09– 

OAR–2010–0120, by one of the 

following methods: 

1. Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the on-line 

instructions. 

2. E-mail: steckel.andrew@epa.gov. 

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 

online at http://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 http:// 

www.regulations.gov or e-mail. http:// 

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 

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: 

Andrew Steckel, EPA Region IX, (415) 

947–4115, steckel.andrew@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 

Rules? 

II. EPA’s Evaluation 

A. How Is EPA Evaluating the Rules? 

B. Do the Rules Meet the Evaluation 

Criteria? 

C. What Are the Rules’ Deficiencies? 

D. EPA Recommendations To Further 

Improve the Rules 

III. Proposed Action and Public Comment 

IV. 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 the local air agency, 

ICAPCD, and submitted by the 

California Air Resources Board (ARB). 

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Federal Register / Vol. 75, No. 35 / Tuesday, February 23, 2010 / Proposed Rules 8009 

The seven rules listed below constitute ICAPCD’s Regulation VIII—Fugitive 

Dust Rules. 

TABLE 1—SUBMITTED RULES

Local agency Rule 

No. Rule title Adopted Submitted 

ICAPCD ................. 800 General Requirements for Control of Fine Particulate Matter ............................. 11/08/05 06/16/06 

801 Construction & Earthmoving Activities ................................................................. 11/08/05 06/16/06 

802 Bulk Materials ....................................................................................................... 11/08/05 06/16/06 

803 Carry Out & Track Out ......................................................................................... 11/08/05 06/16/06 

804 Open Areas .......................................................................................................... 11/08/05 06/16/06 

805 Paved & Unpaved Roads .................................................................................... 11/08/05 06/16/06 

806 Conservation Management Practices .................................................................. 11/08/05 06/16/06 

On July 21, 2006, we found that the 

State’s submittal for ICAPCD Regulation 

VIII, Rules 800–806, met the 

completeness criteria in 40 CFR part 51, 

Appendix V. A completeness 

determination by EPA means that the 

submission provides sufficient 

information for EPA to evaluate it for 

action under CAA sections 110(k)(3) 

and (4). 

B. Are There Other Versions of These 

Rules? 

There are no previous versions of 

Rules 800–806 in the SIP. 

C. What Is the Purpose of the Submitted 

Rules? 

Exposure to ambient PM10 at levels 

above the NAAQS is harmful to human 

health and the environment, with effects 

including premature mortality, 

aggravation of respiratory and 

cardiovascular disease, decreased lung 

function, visibility impairment, and 

damage to vegetation and ecosystems. 

Section 110(a) of the CAA requires 

states to develop a SIP that meets basic 

requirements for a national ambient air 

quality standard (NAAQS). If a state has 

areas that are designated 

‘‘nonattainment’’ for a NAAQS, then 

section 172, and in the case of the PM10- 

specific sections 188 and 189, require 

the state to submit regulations that 

control emissions of PM10 and its 

precursors, as appropriate, to bring the 

area into attainment of the NAAQS. 

The Imperial Valley is designated 

nonattainment for PM10. Accordingly, 

ICAPCD is developing regulations 

intended to attain the NAAQS. 

ICAPCD’s Regulation VIII consists of 

seven inter-related rules designed to 

limit emissions of PM10 from 

anthropogenic fugitive dust sources in 

Imperial County. Each rule is described 

briefly below. 

Rule 800, General Requirements for 

Control of Fine Particulate Matter, 

provides definitions, a compliance 

schedule, exemptions and other 

requirements generally applicable to all 

seven rules. It also describes specific 

exemptions and requirements for the 

U.S. Department of Defense (DOD), U.S. 

Bureau of Land Management (BLM) and 

U.S. Border Patrol (BP). Appendices A 

and B describe methods for determining 

compliance with opacity and surface 

stabilization requirements in Rules 801 

through 805. 

Rule 801, Construction and 

Earthmoving Activities, establishes a 

20% opacity limit and control 

requirements for construction and 

earthmoving activities. Affected sources 

must submit a dust control plan and 

comply with other portions of 

Regulation VIII regarding bulk materials, 

carry-out and track-out, and paved and 

unpaved roads. The rule exempts 

construction of single family homes and 

waives the 20% opacity limit in winds 

over 25 mph under certain conditions. 

Rule 802, Bulk Materials, establishes 

a 20% opacity limit and control 

requirements for bulk material handling, 

storage, transport and hauling. 

Rule 803, Carry-Out and Track-Out, 

establishes control requirements for 

removing carry-out and track-out 

material transported onto paved roads 

from unpaved roads and areas. 

Rule 804, Open Areas, establishes a 

20% opacity limit and requires land 

owners to prevent vehicular trespass 

and to stabilize disturbed soil on certain 

open areas. Agricultural operations are 

exempt from the rule. 

Rule 805, Paved and Unpaved Roads, 

establishes a 20% opacity limit and 

control requirements for unpaved haul 

and access roads, canal roads, and 

traffic areas that meet certain size or 

traffic thresholds. Single family 

residences and agricultural operations 

are exempt from the rule. 

Rule 806, Conservation Management 

Practices, requires agricultural operation 

sites greater than 40 acres to implement 

at least one conservation management 

practice (CMP) for each of these 

categories: land preparation and 

cultivation, harvest activities, unpaved 

roads and unpaved traffic areas. 

EPA’s technical support document 

(TSD) has more specific information 

about these rules. The submission from 

ICAPCD also provides additional details 

and includes the Regulation VIII rules. 

II. EPA’s Evaluation 

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 SIP 

requirements (see sections 110(l) and 

193). In addition, SIP rules must 

implement Reasonably Available 

Control Measures (RACM) for certain 

emissions sources in moderate PM10

nonattainment areas, and Best Available 

Control Measures (BACM) for such 

sources in serious PM10 nonattainment 

areas (see CAA sections 189(a)(1) and 

189(b)(1)). 

We used the following guidance and 

policy documents to evaluate 

enforceability and to interpret RACM or 

BACM requirements: 

1. ‘‘Issues Relating to VOC Regulation 

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. 

2. ‘‘Guidance Document for Correcting 

Common VOC & Other Rule Deficiencies,’’ 

EPA Region 9, August 21, 2001 (the Little 

Bluebook). 

3. ‘‘State Implementation Plans; General 

Preamble for the Implementation of Title I of 

the Clean Air Act Amendments of 1990,’’ 57 

FR 13498 (April 16, 1992); 57 FR 18070 

(April 28, 1992). 

4. ‘‘State Implementation Plans for Serious 

PM–10 Nonattainment Areas, and 

Attainment Date Waivers for PM–10 

Nonattainment Areas Generally; Addendum 

to the General Preamble for the 

Implementation of Title I of the Clean Air Act 

Amendments of 1990,’’ 59 FR 41998 (August 

16, 1994). 

5. ‘‘PM–10 Guideline Document,’’ EPA 452/ 

R–93–008, April 1993. 

6. ‘‘Fugitive Dust Background Document 

and Technical Information Document for 

Best Available Control Measures,’’ EPA 450/ 

2–92–004, September 1992. 

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8010 Federal Register / Vol. 75, No. 35 / Tuesday, February 23, 2010 / Proposed Rules 

1 ‘‘2009 Imperial County State Implementation 

Plan for Particulate Matter Less Than 10 Microns 

in Aerodynamic Diameter, Final,’’ August 11, 2009, 

section 3.2. 

2Letter from James N. Goldstene, ARB, to 

Deborah Jordan, EPA, May 19, 2009, requesting 

exclusion of September 2, 2006, April 12, 2007, and 

June 5, 2007 Imperial County PM10 exceedances. 

3See letter, with enclosure, from Laura Yoshii, 

EPA, to James Goldstene, ARB, Re: Exceptional 

events requests regarding exceedances of the PM– 

10 NAAQS in Imperial County, CA, December 22, 

2009. 

4As used in this discussion and in the TSD, the 

term ‘‘off-highway vehicle’’ or OHV includes all 

vehicles subject to the exemption in Rule 800 

Section E.6 for recreational use of public lands in 

Imperial County. 

5This small portion includes some emissions 

from OHV activity in Ocotillo Wells State Park 

where Rule 804 is apparently not being 

implemented even though State lands are not 

exempted from the rule’s requirements. 

Please see our TSD for other 

documents we have used in our 

evaluation. 

Because Imperial County is a PM10

nonattainment area classified as serious 

(see 40 CFR part 81), Regulation VIII 

must implement BACM for significant 

sources of PM10 in Imperial County. In 

guidance, 59 FR 41998 (August 16, 

1994), we have defined BACM to be, 

among other things, the maximum 

degree of emission reduction achievable 

from a source category which is 

determined on a case-by-case basis 

considering energy, economic, 

environmental impacts and other costs. 

A source category is presumed to 

contribute significantly to a violation of 

the 24-hour PM10 national ambient air 

quality standard (150 μg/m 3) if its PM10

impact exceeds 5 μg/m 3. As described 

in more detail in the TSD, we 

determined that BACM is required for 

the following sources of PM10 emissions 

in Imperial County: 

TABLE 2—SIGNIFICANT SOURCES OF

PM–10 IN IMPERIAL COUNTY

Open areas: 

Windblown Dust, Other Open Area. 

Unpaved roads: 

Entrained Unpaved Road Dust, City/ 

County. 

Entrained Unpaved Road Dust, Canal. 

Windblown Dust, Unpaved City/County 

Road. 

Windblown Dust, Unpaved Canal Road. 

Windblown Dust, Unpaved Farm Road. 

Agricultural lands: 

Tilling. 

Windblown Dust, Non-Pasture Agricultural Lands. 

We based the list of significant 

sources in Table 2 in part on ICAPCD’s 

analysis of such sources in its 2009 

PM10 attainment plan.1 However, 

ICAPCD excluded from its analysis 

exceedances in 2006 and 2007 that it 

deemed to be caused by high wind 

exceptional events. As a result of the 

exclusion of these exceedances, 

ICAPCD’s list of significant sources did 

not include any windblown dust 

sources. The State formally sought to 

exclude the 2006 and 2007 exceedances 

for regulatory purposes under EPA’s 

exceptional events rule (40 CFR 50.1(j) 

and 50.14).2

On December 22, 2009, EPA did not 

concur with the State’s request to 

exclude the 2006 and 2007 exceedances 

as due to high wind exceptional events.3

EPA adjusted ICAPCD’s significant 

source analysis to reflect this 

nonconcurrence, and as a result 

identified windblown dust from open 

areas, unpaved roads and non-pasture 

agricultural lands to be significant 

sources as reflected in Table 2. We have 

included the documents supporting our 

December 22, 2009 nonconcurrence in 

the docket for this proposed rule. 

In addition to the sources in Table 2 

above, we believe BACM is required for 

unpaved traffic areas and agricultural 

harvest operations. These activities 

occur at the same facilities and are 

integrally related to other activities 

identified as significant (i.e., unpaved 

roads and tilling respectively). By 

analogy, where enforceable volatile 

organic compound (VOC) reasonably 

available control technology (RACT) 

level controls are required for refineries, 

SIP rules generally impose leak 

detection and repair requirements on 

valves, flanges, threaded connections, 

and other related equipment even if 

emissions from any one of these taken 

individually might be much smaller 

than the major source threshold 

requiring RACT. 

B. Do the Rules Meet the Evaluation 

Criteria? 

Rules 800–806 improve the SIP by 

providing more stringent emission 

limits, monitoring, recording, and 

recordkeeping provisions for these 

sources compared to existing provisions 

in the SIP for the ICAPCD portion of 

California. The rules are largely 

consistent with the relevant statutory 

requirements, and with relevant policy 

and guidance regarding enforceability, 

RACM and BACM. Rule provisions that 

do not meet the evaluation criteria are 

summarized below and discussed 

further in the TSD. 

C. What Are the Rules’ Deficiencies? 

While, as indicated above, BACM is 

determined on a case-by-case basis, the 

identification of potential BACM for a 

significant source category in Imperial 

County necessarily involves a 

consideration of control measures 

adopted and/or implemented in other 

geographical areas for the same and 

similar source categories. Therefore, in 

evaluating Regulation VIII, we have 

compared its individual rules to 

analogous requirements in the South 

Coast Air Quality Management District 

(SCAQMD), San Joaquin Valley Air 

Pollution Control District (SJVAPCD), 

Maricopa County Air Quality 

Department (MCAQD), Clark County 

Department of Air Quality and 

Environmental Management 

(CCDAQEM) and other areas. In doing 

so, we recognize that some variability 

exists among sources in different 

geographical areas, and that technically 

and economically feasible controls in 

one area may not be feasible in another 

area. 

Based on our analysis, we believe that 

Regulation VIII is generally consistent 

with analogous requirements in other 

serious PM10 areas and includes many 

provisions consistent with CAA BACM 

requirements and with EPA’s 

established policy and guidance. 

However, the deficiencies discussed 

below preclude EPA’s full approval of 

Regulation VIII. Sections II.C.1 through 

3 below identify deficiencies related to 

sources for which BACM is required as 

discussed above in Section II.A. Section 

II.C.4 below identifies one deficiency 

related to the Regulation VIII rule for 

bulk materials, a source category for 

which BACM is not currently required 

based on the information available to 

EPA to date. A number of these 

deficiencies are discussed in more detail 

in the TSD. 

1. BACM–Related Deficiencies For Open 

Areas 

a. Recreational Off-Highway Vehicle 

Activity 

Recreational off-highway vehicle 

(OHV) 4 activity causes much of the 

PM10 emissions from open areas in 

Imperial County. Rule 804 regulates 

only a small portion of these emissions.5

The vast majority of the OHV emissions 

in Imperial County are addressed only 

by requirements in Rule 800 Section F.5 

for dust control plans (DCPs) for sources 

under the control of BLM. While BLM 

is required to describe in the DCPs the 

dust control measures that it intends to 

implement, BLM is not required to 

implement any specific BACM-level 

controls for OHV use, and ICAPCD has 

not provided an analysis of BACM for 

OHV activity. 

ICAPCD must provide an analysis of 

potential BACM controls for OHV 

activity in open areas and on unpaved 

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Federal Register / Vol. 75, No. 35 / Tuesday, February 23, 2010 / Proposed Rules 8011 

6On August 11, 2004, EPA reclassified Imperial 

County as serious nonattainment for PM10. 69 FR 

48835. Since 2008 has passed, BACM is now 

required to be implemented as expeditiously as 

practicable. Delaney v. EPA, 898 F.2d 687 (9th Cir. 

1990). 

roads and paths that are exempt from 

the specific requirements and measures 

in Rules 804 and 805 and identify, 

adopt and submit any appropriate 

revisions to Rules 800, 804 and 805. 

Such analysis should address as its 

starting point measures in EPA’s 1992 

RACM guidance at 57 FR 18070 (April 

28, 1992) and analogous requirements in 

other geographical areas such as 

Arizona Revised Statute § 49–457.03 

and Clark County Air Quality 

Regulations, Section 90. ICAPCD should 

evaluate the feasibility and impacts of 

additional restrictions in recreational 

OHV areas, such as closing some of the 

250 square miles that are open to OHV 

use that are particularly likely to impact 

populations, and restricting OHV 

activity during summer months when 

there is virtually no rain to reform 

surface crusts. In addition, ICAPCD 

must implement Rules 804 and 805 on 

all State lands used by OHVs or 

demonstrate in its BACM analysis that 

an exemption for OHV activity on such 

lands is appropriate. 

Please see Section III.B.1 of our TSD 

for further discussion of this deficiency. 

b. Definition of ‘‘Disturbed Surface’’ 

The term ‘‘disturbed surface area’’ is 

used in several Regulation VIII rules but 

is never defined. For example, Rule 804 

applies to a source category for which 

BACM is required and relies on the 

undefined term to describe rule 

applicability in Rule 804 Section B. In 

order to ensure that these rules are 

enforceable at a BACM level, ICAPCD 

must define ‘‘disturbed surface area’’ as 

do, for example, SJVAPCD Rule 8010 

and SCAQMD Rule 403. 

2. BACM-Related Deficiencies for 

Unpaved Roads 

a. Unpaved Non-Farm Roads 

The CAA requires ICAPCD to 

implement BACM by 2008 (i.e., four 

years after reclassification to serious).6

Rule 805 Section E.7 allows the County 

until 2015 to stabilize heavily-travelled 

unpaved roads. This schedule is 

inconsistent with the statutory 

requirement and ICAPCD has not 

provided adequate evidence that this 

schedule is as expeditious as 

practicable, based upon economic 

feasibility or any other appropriate 

consideration. In evaluating economic 

feasibility of a measure that depends on 

public funding, EPA considers past 

funding of similar activities and 

availability of funding sources to 

determine whether public agencies have 

made good faith efforts to expeditiously 

implement the available control 

measures. ICAPCD must expedite the 

schedule for implementation of this 

measure or demonstrate good faith 

efforts to increase funding and priority 

of road stabilization projects consistent 

with national guidance. Please see 

Section III.B.3 of our TSD for further 

discussion of this deficiency. 

Rule 805 Section E.7’s requirement to 

stabilize all non-exempt unpaved 

County roads is also not adequately 

enforceable as currently structured. If 

ICAPCD retains the same structure, it 

must revise Rule 805 Section E.7 to 

clarify that the County must: (a) 

Implement (and not just submit) a 

stabilization plan; (b) stabilize different 

unpaved roads each year; and (c) 

maintain all stabilized roads. 

b. Unpaved Farm Roads and Traffic 

Areas 

Rule 805 Section D.2 exempts 

agricultural roads and traffic areas from 

the opacity and stabilization 

requirements applicable to nonagricultural operation sites. Farm roads 

and traffic areas are only required to 

implement a CMP from the menus for 

unpaved roads and traffic areas in Rule 

806. In contrast, for example, SJVAPCD 

requires that CMPs be implemented to 

meet opacity and stabilization 

requirements at the following 

thresholds: Unpaved farm roads with ≥ 

75 VDT or ≥ 25 average daily vehicle 

trips by three or more axle vehicles; 

unpaved traffic areas with ≥ 50 average 

daily vehicle trips (on an annual basis) 

or ≥ 25 average daily vehicle trips (on 

an annual basis) by three or more axle 

vehicles. ICAPCD must remove the 

exemption in Rule 805 Section D.2 or 

demonstrate how BACM is met in 

Imperial County for farm roads and 

traffic areas that are subject to less 

stringent requirements than other roads 

and traffic areas in the County and farm 

roads and traffic areas in other areas. 

Rule 806 Sections E.3 and E.4 list 

CMPs intended to control emissions 

from agricultural unpaved roads and 

traffic areas but these measures are 

broadly defined and there is no other 

mechanism in the rule to ensure 

specificity. The absence of sufficiently 

defined requirements makes it difficult 

for regulated parties to understand and 

comply with the requirements, and 

makes it difficult for ICAPCD or others 

to verify compliance and to enforce the 

requirements if necessary. The lack of 

specificity similarly renders it difficult 

to assess whether the measures 

constitute BACM level controls. 

ICAPCD must revise Rule 806 to ensure 

that unpaved road and traffic area CMPs 

are enforceable and are implemented at 

a BACM level or demonstrate why such 

a rule revision is not necessary. 

SJVAPCD Rule 4550, for example, relies 

on an application submittal and 

approval process to ensure sufficient 

specificity of the particular measures 

implemented at each source. Great 

Basin Unified Air Pollution Control 

District (GBUAPCD) Rule 502 also has 

an application submittal and approval 

process. Alternatively, there may be 

another mechanism to ensure adequate 

specificity such as by revising and 

clarifying ICAPCD’s CMP application 

forms. 

c. Border Patrol Roads 

Rule 800 Section F.6.c exempts roads 

owned or operated by BP from Rule 805 

requirements that are ‘‘inconsistent with 

BP authority and/or mission.’’ It is not 

clear what this exemption is intended to 

address, or how it would be 

implemented and enforced, particularly 

because both BP and ICAPCD staff have 

informally informed EPA that BP does 

not own or operate any roads in 

Imperial County. ICAPCD must either 

remove this exemption or narrow the 

exemption to specific mission activities 

and demonstrate that the exemption is 

minimized and necessary, consistent 

with BACM requirements. 

3. BACM-Related Deficiencies for 

Agricultural Lands 

a. Tilling and Harvesting 

Rule 806 Sections E.1 and E.2 list 

CMPs intended to control emissions 

from agricultural land preparation and 

cultivation (including tilling), and 

harvest activities, but these measures 

are broadly defined and there is no 

other mechanism in the rule to ensure 

specificity. The absence of sufficiently 

defined requirements makes it difficult 

for regulated parties to understand and 

comply with the requirements, and 

makes it difficult for ICAPCD or others 

to verify compliance and to enforce the 

requirements if necessary. The lack of 

specificity similarly renders it difficult 

to assess whether the measures 

constitute BACM level controls. 

ICAPCD must revise Rule 806 to ensure 

that tilling and harvesting CMPs are 

enforceable and are implemented at a 

BACM level or demonstrate why such a 

rule revision is not necessary. SJVAPCD 

Rule 4550, for example, relies on an 

application submittal and approval 

process to ensure sufficient specificity 

of the particular measures implemented 

at each source. GBUAPCD Rule 502 also 

has an application submittal and 

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8012 Federal Register / Vol. 75, No. 35 / Tuesday, February 23, 2010 / Proposed Rules 

approval process. Alternatively, there 

may be another mechanism to ensure 

adequate specificity such as by revising 

and clarifying ICAPCD’s CMP 

application forms. 

In addition, Rule 806 Section E 

requires one CMP from the ‘‘land 

preparation and cultivation’’ category 

and one CMP from the ‘‘harvest’’ 

category, while SJVAPCD Rule 4550 

requires an additional CMP from the 

‘‘cropland-other’’ category. GBUAPCD 

Rule 502 also requires that one CMP 

each be selected from the ‘‘land 

preparation and cultivation,’’ ‘‘harvest,’’ 

and the ‘‘cropland-other’’ categories. 

ICAPCD must similarly require an 

additional CMP for cropland, or 

demonstrate why that is not 

appropriate. 

b. Windblown Dust 

Windblown dust from non-pasture 

agricultural lands is also a significant 

source of PM10 that requires BACM 

independent of agricultural tilling. The 

CMPs in Rule 806 Section E, however, 

mainly control emissions by reducing 

the number of vehicle passes across 

fields, and sources are not required to 

select BACM level practices for 

controlling windblown dust from active 

or fallow agricultural fields. ICAPCD 

must revise Rule 806 to require BACM 

level windblown dust controls. In 

general, EPA believes that the 

evaluation of BACM level controls for a 

particular source or activity should 

include consideration of U.S. 

Department of Agriculture (USDA) 

approved conservation systems and 

activities. Although these guidelines 

may not specifically be designed to 

minimize air pollution, they are 

intended to be feasible and effective 

techniques that will reduce windblown 

dust, and thus would be appropriate 

measures to consider for BACM for such 

sources or activities for PM10. SCAQMD 

Rule 403 provides an example of such 

controls. Please see Section III.B.4 in 

our TSD for further discussion of this 

deficiency. 

4. Non-BACM Deficiency 

Rule 802 Section D.1 allows the Air 

Pollution Control Officer (APCO) to set 

aside controls that might be used 

instead of water to stabilize surfaces of 

bulk materials. This discretion allows 

ICAPCD to approve alternatives to the 

applicable SIP without following the 

SIP revision process described in CAA 

section 110. Moreover, ICAPCD has not 

demonstrated why such discretion is 

needed for measures such as covering, 

enclosing or sheltering material piles. 

While we prefer removal of the 

exemption and APCO discretion, 

SJVAPCD Rule 8031 remedies the 

enforceability issue by requiring EPA 

approval. 

D. EPA Recommendations To Further 

Improve the Rules 

Our TSD describes additional rule 

revisions that we recommend for the 

next time ICAPCD modifies the rules, 

but are not the basis for disapproval at 

this time. 

III. 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 seven interrelated Regulation VIII rules to 

strengthen 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 seven inter-related 

Regulation VIII rules under sections 

110(k)(3), 110(a) and 189(a)(1)(C) and 

(b)(1)(B) for the reasons set forth in 

Section II.C. of this proposed rule. 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 set forth in sections II.C.1 

through 3 of this proposed rule within 

18 months of the disapproval. These 

sanctions would be imposed according 

to 40 CFR 52.31. A final disapproval 

would also trigger the 2-year clock for 

the federal implementation plan (FIP) 

requirement under section 110(c). The 

deficiency identified in Section II.C.4 of 

this proposed rule would not trigger 

sanctions or a FIP obligation at this time 

because it does not appear that it is 

associated with SIP revisions that are 

required by the CAA. 

Note that the submitted rules have 

been adopted by ICAPCD, and EPA’s 

final limited disapproval would not 

prevent ICAPCD from enforcing them. 

We will accept comments from the 

public on our proposed limited 

approval and limited disapproval action 

for 30 days from publication in the 

Federal Register. 

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 action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. Burden is 

defined at 5 CFR 1320.3(b). 

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 or 

disapprovals under section 110 and 

subchapter I, part D of the Clean Air Act 

do not create any new requirements but 

simply approve or disapprove 

requirements that the State is already 

imposing. Therefore, because the 

proposed Federal SIP limited approval/ 

limited disapproval 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 costeffective 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 limited 

approval/limited disapproval action 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

Federal Register / Vol. 75, No. 35 / Tuesday, February 23, 2010 / Proposed Rules 8013 

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 and 

disapprove 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 proposes to approve or 

disapprove 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 

EPA interprets Executive Order 13045 

(62 FR 19885, April 23, 1997) as 

applying only to those regulatory 

actions that concern health or safety 

risks, such that the analysis required 

under section 5–501 of the Executive 

Order has the potential to influence the 

regulation. This rule is not subject to 

Executive Order 13045, because it 

approves a state rule implementing a 

Federal standard. 

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: February 10, 2010. 

Jared Blumenfeld, 

Regional Administrator, Region IX. 

[FR Doc. 2010–3513 Filed 2–22–10; 8:45 am] 

BILLING CODE 6560–50–P 

CORPORATION FOR NATIONAL AND 

COMMUNITY SERVICE 

45 CFR Parts 2510, 2522, 2525, 2526, 

2527, 2528, 2529, 2530, 2531, 2532, 

2533, 2550, 2551, and 2552 

RIN 3045–AA51 

Serve America Act Amendments to the 

National and Community Service Act 

of 1990 

AGENCY: Corporation for National and 

Community Service. 

ACTION: Proposed rule. 

SUMMARY: On April 21, 2009, President 

Obama signed into law the Edward M. 

Kennedy Serve America Act (‘‘The Serve 

America Act’’ or ‘‘SAA’’). The Serve 

America Act reauthorizes and expands 

national service programs administered 

by the Corporation for National and 

Community Service (‘‘the Corporation’’) 

by amending the National and 

Community Service Act of 1990 

(‘‘NCSA’’ or ‘‘the Act’’) and the Domestic 

Volunteer Service Act of 1973 (‘‘DVSA’’). 

The Corporation publishes this 

proposed rule to implement changes to 

the operation of the National Service 

Trust under the Serve America Act. This 

proposed rule provides flexibility for 

exceptions to the 80 percent cost 

reimbursement requirement for Senior 

Companion and Foster Grandparent 

programs based on hardship. In 

addition, this proposed rule reorders 

and renumbers certain parts of the 

existing regulations, adds new 

definitions, and makes several minor 

technical edits. 

DATES: To be sure your comments are 

considered, they must reach the 

Corporation or or before April 26, 2010. 

ADDRESSES: You may send your 

comments electronically through the 

Federal government’s one-stop 

rulemaking Web site at http:// 

www.regulations.gov. You may also mail 

or deliver your comments to Amy 

mstockstill on DSKH9S0YB1PROD with PROPOSALS