Federal Register/Vol. 75, No. 130/Thursday, July 8, 2010/Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[EPA-R09-OAR-2010-0120; FRL-91169-2]

Revisions to the California State

Implementation Plan, Imperial County

Air Pollution Control District

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is finalizing a limited

approval and limited disapproval of

revisions to the Imperial County Air

Pollution Control District (ICAPCD or

the District) portion of the California

State Implementation Plan (SIP) under

the Clean Air Act as amended in 1990

(CAA or the Act). This action was

proposed in the Federal Register on

February 23, 2010 and concerns local

rules that regulate coarse particulate

matter (PM1 o) emissions from sources of

fugitive dust such as construction sites,

unpaved roads, and disturbed soils in

open and agricultural areas in Imperial

County.

DATES: Effective Date: This rule is

effective on August 9, 2010.

ADDRESSES: EPA has established docket

number EPA-R09-OAR-2010-0120 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:

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. Summary of Proposed Action

11. Public Comments and EPA Responses

II. EPA Action

IV. Statutory and Executive Order Reviews

I. Summary of Proposed Action

On February 23, 2010 (75 FR 8008),

EPA proposed a limited approval and

limited disapproval of the following

rules listed in Table 1, known

collectively as Regulation VIII, that were

adopted by ICAPCD and submitted by

the California Air Resources Board

(ARB) for incorporation into the

California SIP for the Imperial County

serious PM10 nonattainment area.

TABLE 1

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

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 provisions of the rules conflict

with the CAA section 110(a)

requirement that SIP rules must be

enforceable and the requirement in

section 189(b)(1)(B) for implementation

of best available control measures

(BACM) in serious PM1 o nonattainment

areas such as Imperial County. We

discuss these statutory requirements

and the Regulation VIII deficiencies in

detail in the proposed rule and in the

Technical Support Document for that

proposal (proposal TSD). 1 In the

proposed rule and proposal TSD we also

discuss our determination of which

fugitive dust source categories

addressed by Regulation VIII are

significant and consequently require

BACM pursuant to EPA guidance. This

1 Our proposed rule and proposal TSD also

describe additional improvements that we

recommend for future ICAPCD modifications of the

rules. This final action is not based on those

recommendations. As a result, we do not respond

here to all comments we received on them.

determination was based in part on our

2009 decision 2 to not concur with the

State's request pursuant to EPA's

exceptional events rule 3 (EER) to

exclude certain exceedances of the PM1o

National Ambient Air Quality Standard

(NAAQS) in Imperial County from

consideration in regulatory actions

under the CAA.4

We summarize the Regulation VIII

deficiencies addressed in our proposed

rule below. These deficiencies concern

Regulation VIII provisions relating to

open areas, unpaved roads and

agricultural lands.

2 Letter with enclosure from Laura Yoshii (EPA),

to James Goldstene (ARB), Re: exceptional events

requests regarding exceedances of the PMlo NAAQS

in Imperial County, CA, December 22, 2009.

340 CFR 50.1(j) and 50.14.

4 Issues related to the Regulation VIII deficiencies,

significant source categories and our decision not

to concur with the State's exceptional events

requests are addressed further below in our

responses to comments we received on the

proposed rule.

A. BACM-Related Deficiencies for Open

Areas

1. Recreational Off-Highway Vehicle

Activity

While recreational off-highway

vehicle (OHV) 5 activity causes much of

the PMo emissions from open areas in

Imperial County, Rule 804 regulates

only a small portion of these emissions,

including those from OHV activity on

State lands on which the rule is not

being implemented. 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 the Bureau of Land

Management (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. Moreover,

ICAPCD has not provided an analysis of

BACM for OHV activity, including

5As used here and in the proposal 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.

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potential OHV activity in open areas

and on unpaved roads and paths that

are exempt from the specific

requirements and measures in Rules 804

and 805. The proposed rule and

proposal TSD address how ICAPCD can

correct these deficiencies.6

2. 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. A

definition of this term is necessary in

order to ensure that these rules are

enforceable at a BACM level.

B. BACM-Related Deficiencies for

Unpaved Roads

1. Unpaved Non-Farm Roads

While CAA section 189(b)(1)(B)

requires ICAPCD to implement BACM

by 2008 (i.e., four years after

reclassification to serious),7 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 addition,

Rule 805 section E.7's requirement to

stabilize all non-exempt unpaved

County roads is not adequately

enforceable as currently structured

because it is not clear that the County

is required to implement (and not just

submit) a stabilization plan; stabilize

different unpaved roads each year; and

maintain all stabilized roads. The

proposed rule and proposal TSD

address how ICAPCD can correct these

deficiencies.8

2. 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 conservation management

practice (CMP) from the menus for

6 75 FR 8008, 8010-8011 and our proposal TSD,

section III.B.1.

7 On August 11, 2004, EPA reclassified Imperial

County as serious nonattainment for PMlo. 69 FR

48835. Since 2008 has passed, BACM is now

required to be implemented as expeditiously as

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

1990).

8 75 FR 8008, 8011 and our proposal TSD, section

III.B.3.

unpaved roads and traffic areas in Rule

806 in contrast to analogous rules in

other geographical 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. The

proposed rule and proposal TSD

address how ICAPCD can correct these

deficiencies. 9

3. Border Patrol Roads

Rule 800 section F.6.c exempts roads

owned or operated by the U.S. Border

Patrol (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 in order to meet BACM

requirements. The proposed rule

addresses how ICAPCD can correct

these deficiencies. 10

C. BACM-Related Deficiencies for

Agricultural Lands

1. 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.

In addition, Rule 806 section E

requires one CMP from the "land

preparation and cultivation" category

and one CMP from the "harvesting"

category, while rules in other

geographic areas have more stringent

requirements.

9 75 FR 8008, 8011 and our proposal TSD, section

III.B.4.

10 75 FR 8008, 8011.

The proposed rule and proposal TSD

address how ICAPCD can correct these

deficiencies. 11

2. 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. The

proposed rule and proposal TSD

address how ICAPCD can correct these

deficiencies. 12

D. Non-BA CM 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.

The proposed rule addresses how

ICAPCD can correct these

deficiencies. 13

II. Public Comments and EPA

Responses

EPA's proposed action provided a 30-

day public comment period. During this

period, we received nine unique

comment letters from public agencies

and broad-based organizations.

* Brad Poiriez, Air Pollution Control

Officer, Imperial County Air Pollution

Control District, March 25, 2010

(ICAPCD).

* Daniel Steward, Acting Field

Manager, United States Department of

the Interior, Bureau of Land

Management, El Centro Resource Area,

March 24, 2010 (BLM).

* Kathleen Dolinar, District

Superintendent, Ocotillo Wells District,

California State Parks, Off-Highway

Motor Vehicle Recreation Division, by

e-mail dated March 24, 2010 (OWD).

* Gail Sevrens, Acting District

Superintendent, Colorado Desert

District, California State Parks, by e-mail

dated March 25, 2010 (CDD).

* David P. Hubbard, Gatzke Dillon &

Balance LLP, on behalf of EcoLogic

11 75 FR 8008, 8011-8012 and our proposal TSD,

section III.B.4.

12 75 FR 8008, 8012 and our proposal TSD,

section III.B.4.

13 75 FR 8008, 8012.

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Partners, Inc., March 25, 2010

(EcoLogic).

* Lisa T. Belenky, Senior Attorney,

Center for Biological Diversity, March

25, 2010, representing several listed

parties (CBD).

* Jose Luis Olmedo, Executive

Director, Comite Civico Del Valle, Inc.,

March 25, 2010, submitted and joined

by other parties (Comite).

* Ayron Moiola, Executive Director,

Coalition of Labor, Agriculture &

Business, March 24, 2010 (COLAB).

* Mark McBroom, President, Imperial

County Farm Bureau, March 24, 2010

(Farm Bureau).

We also received over 100 comment

letters from individuals and

organizations associated with

recreational OHV activities. We

reference these comments below by

their identification in the Federal docket

management system (FDMS) found at

regulations.gov. For example, the

comment listed in FDMS as document

number "EPA-R09-OAR-2010-0120-

0219" is referenced below as "0219."

We summarize the comments and

provide our responses below. In our

responses we identify specific

commenters in some cases but not in

others, particularly where many

commenters made similar points.

A. General

These overarching comments largely

provide general support or opposition to

our proposal.

General #1: CBD and Comite support

EPA's proposal to find that the

Regulation VIII submittal does not fully

implement BACM level controls for all

significant source categories in Imperial

County, and support EPA's

nonconcurrence with associated

exceptional event requests. They ask

EPA to finalize the proposed limited

disapproval of Regulation VIII and to

require additional PM1 o emissions

restrictions. Many other commenters

disagree with EPA's proposed limited

disapproval, especially with EPA's

identification of deficiencies for BACM

requirements and EPA's

nonconcurrence with exceptional

events. ICAPCD, for example, believes

that EPA's proposal is arbitrary and

capricious, and that California has

demonstrated that all required BACM

are being implemented in Imperial

County.

Response: No response is necessary

for the overarching statements of

support or opposition. Responses are

provided below to the specific

comments that support these general

statements.

General #2: Several commenters

believe that EPA's proposal lacks

adequate scientific support. One (0144),

for example, states that passing

sweeping air quality regulations in an

area with unique terrain and climate

with only generalities to prove the

sources of pollution is unethical and

appears anti-development, anti-OHV

and anti-agriculture.

Response: The scientific support for

EPA's action is documented in our

proposal and the associated proposal

TSD and discussed further in response

to specific comments below. See, for

example, response to comment El #3

below. The serious health impacts of

exposure to elevated levels of PM10 are

well known and well documented and

need not be reiterated here.

General #3: ICAPCD objects to EPA

taking over four years to act on its

submittals of Regulation VIII for

approval and claims that EPA is only

now raising basic issues that ICAPCD

believes should have been resolved

before rule adoption. For example,

ICAPCD objects to EPA disapproving a

definition that it claims is clear and

understood by all affected parties.

ICAPCD and others (e.g., COLAB)

comment that EPA never raised this and

other concerns despite ICAPCD's

extensive public process and

communication with EPA before rule

adoption. ICAPCD also cites EPA's

testimony before the District Board in

which the Agency supported Regulation

VIII as BACM. As a result, ICAPCD

concludes that EPA's proposal

undermines ICAPCD's ability to rely on

EPA comments in the future.

Response: EPA reviews and

comments on many draft State and local

agency rules during their development

prior to submittal to EPA for formal

approval. It is generally more efficient

for all parties to identify and resolve

issues early in the process, rather than

after rules are adopted and submitted to

EPA for inclusion into the SIP. EPA's

formal action on local rules, however,

can only occur through notice and

comment rulemaking after rules have

been officially submitted to EPA by the

State. If EPA determines during that

process that a submittal does not fulfill

relevant CAA requirements, we cannot

approve the submittal. Given time and

resource constraints, it is not always

possible for the Agency to identify or

analyze fully all issues before State or

local rule adoption. Moreover, EPA

must carefully consider all public

comments submitted on proposed EPA

actions on State and local rules. Such

comments often identify issues and

concerns that may not have arisen

during the prior evaluation of drafts of

a rule. We continue to believe, however,

that communication between EPA and

State and local agencies at the rule

development stage is productive.

General #4: OWD asks EPA to extend

the comment period because it was

informed of EPA's proposal only nine

days before the close of the comment

period. Several commenters also state

that EPA did not provide adequate

notification time (0218.1 and 0098) or

consultation with State Park personnel

(0218.1 and OWD).

Response: EPA denied OWD's request

to extend the comment period because

EPA is under a court order 14 to finalize

action by June 15, 2010, and needs time

to analyze all comments submitted on

the proposal.'5 While more time and

outreach before EPA action is always

desirable, nothing in the comments

suggests that EPA failed to follow

relevant public notification

requirements found in the

Administrative Procedures Act.16 EPA

notes that OWD did comment on the

proposal and EPA has taken those

comments into consideration in the

final action.

B. State Implementation Plan (SIP)

These comments generally address

broad SIP issues rather than specific

Regulation VIII provisions.

SIP #1: OWD believes the PM1 o

standard is nearly impossible to attain

given Imperial's climate, natural desert

condition, the cost of inappropriate

BACM, and other local conditions. In

contrast, Comite asks EPA to find that

California has failed to submit a PM10

plan as required by 72 FR 70222

(December 11, 2007), and to consider

imposing associated CAA section 179

sanctions and a section 110(c) Federal

implementation plan (FIP) in this area.

Response: Our proposed action

addresses the CAA section 189(b)(1)(B)

requirement for BACM for certain PM10

sources in Imperial County. The

submittal at issue, Regulation VIII, is but

one portion of the complete SIP that

ICAPCD must develop in order to meet

additional CAA requirements. These

comments address the separate and

broader statutory obligations for the

State to submit a PMo plan that, among

other things, demonstrates expeditious

attainment of the PM1 o NAAQS. Those

other obligations are not the subject of

this action.

SIP #2: ICAPCD does not believe that

any additional controls such as those

that may need to be implemented if EPA

partially disapproves Regulation VIII

14 Comite Civico Del Valle, Inc., v. Jackson, No.

09-cv-04095 PJH (N.D. Cal.).

15 E-mail from Andrew Steckel, EPA, to Kathleen

Dolinar, California State Parks, March 29, 2010.

16 See 5 U.S.C. 553.

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will prevent PM10 exceedances during

high winds or otherwise materially

benefit air quality on days unaffected by

high winds. ICAPCD further believes

that such additional controls will waste

limited resources that should be used in

other ways to improve local air quality

in the area.

Response: CAA section 189(b)(1)(B)

and EPA guidance 17 require that BACM

be implemented for all significant

source categories 18 in serious PM10

nonattainment areas such as Imperial

County. As explained in our proposal,19

we determined that each of the

subcategories under open areas,

unpaved roads and agricultural lands

below meet or exceed the 5 pg/m 3 de

minimis level in our guidance and are

therefore significant source categories 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.

As EPA stated in the guidance, the

structural scheme throughout title I of

the CAA, including its provisions for

the PM1o NAAQS, requires the

implementation of increasingly

stringent control measures in areas with

more serious pollution problems. EPA

further stated "that the more serious the

air quality problem, the more reasonable

it is to require States to implement

control measures of greater stringency

despite the greater burdens such

measures are likely to cause." 20

Imperial County continues to violate the

PMo standard 21 and our proposed

17 "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) (General Preamble Addendum). 18 Under the General Preamble Addendum, a

source category "will be presumed to contribute

significantly to a violation of the 24-hour NAAQS

if its PM 10 impact at the location of the expected

violation would exceed 5 pg/M 3." This is also

referred to as the de minimis level. Id. at 42011.

19 75 FR 8008, 8010, and proposal TSD, pp. 5-7.

20 General Preamble Addendum at 42010. 21 EPA's Air Quality System Preliminary Design

Value Report (May 18, 2010) shows 17 exceedances

action identifies several components of

the State's Regulation VIII submittal

relating to open areas, agricultural lands

and unpaved roads that do not fulfill the

CAA BACM requirement and the

enforceability requirements of CAA

section 110(a).

We further address ICAPCD's

contention that additional Regulation

VIII controls will not prevent PM10

exceedances during high winds in our

response to comment EE #1 below.

SIP #3: Many commenters emphasize

the importance of OHV areas in Imperial

County for recreation, and believe that

enjoyment of the desert should not be

restricted. Commenters note that many

organizations help keep the desert

clean, and one commenter (0175.1)

believes such efforts would be reduced

if OHV areas are closed.

Response: Recreation, enjoyment of

the desert and clean deserts are

certainly desirable, whether for OHV

use or otherwise. However, except as

implicit in our response to comment

OHV #5 below, they are not germane to

the evaluation in our proposal and in

this final rule of Regulation VIII and its

compliance with the applicable CAA

requirements.

SIP #4: Two commenters (OWD and

0218.1) question whether EPA's

proposal is based on statistically

significant data since there were only

three PMo exceedances within a three

year period.

Response: ICAPCD's obligation to

implement BACM for Regulation VIII

fugitive dust sources derives from the

Imperial County's designation as

nonattainment and classification as

serious. On November 15, 1990, the date

of enactment of the 1990 Clean Air Act

Amendments, Imperial County was

designated nonattainment and classified

as moderate.22 On August 11, 2004, EPA

reclassified the area as serious in

compliance with a mandate of the U.S.

Court of Appeals for the Ninth Circuit. 23

The reclassification, pursuant to CAA

section 188(b)(2), was based on a

finding that the area failed to attain the

PM10 NAAQS by the statutory deadline

of December 31, 1994. Once reclassified

to serious, the area was required to

comply with CAA section 189(b)(1)(B),

which required that BACM be

implemented for the area four years

after its reclassification to serious.

The three exceedances to which OWD

refers occurred during 2006 and 2007.

of the 24-hour PM1o NAAQS in Imperial County

between 2007 and 2009.

22 56 FR 56694 (November 6, 1991).

23 69 FR 48792; Sierra Club v. United States

Environmental Protection Agency, et al., 346 F.3d

995 (9th Cir. 2003); cert. denied, 542 U.S. 919

(2004).

The State requested that these

exceedances be excluded from use in

regulatory actions pursuant to EPA's

EER. 24 Because we did not concur with

the State's request, BACM is required to

be implemented for certain windblown

dust source categories, including open

areas, for which such controls would

not have been required if we had agreed

with the State.25 See our responses to

Exceptional Events comments below.

We also note that California has

chosen to sample PM1 o in Imperial

County only one out of every six days.

As a result, by regulation, each

monitored exceedance is estimated to

represent approximately six

exceedances rather than one. 26 For

example, in 2009, ICAPCD reported

three monitored exceedances at the

Ethel Street monitoring site, which are

estimated to represent 18.3 exceedances.

Exceedances were also monitored at

Brawley, El Centro, Westmorland and

Niland in 2009.27

SIP #5: Comite believes PM1o should

be further controlled in Imperial County

by adoption of local fugitive dust

ordinances like those in Coachella's

Cathedral City, and by strengthening

open burning regulations to be similar

to those in the South Coast Air Quality

Management District (SCAQMD) and

the San Joaquin Valley Unified Air

Pollution Control District (SJVUAPCD).

Response: We assume the commenter

refers to title 8, chapter 8.54 of

Cathedral City's municipal code which

describes requirements for construction,

unpaved roads and other local dust

sources. 28 These requirements are

generally similar to the type of controls

adopted by SCAQMD (e.g., Rule 403),

SJVUAPCD (e.g., Regulation VIII) and

ICAPCD (Regulation VIII). The

commenter does not identify any

specific Cathedral City controls that it

believes are needed in ICAPCD

Regulation VIII to constitute BACM.

Except where identified in our proposal,

we believe ICAPCD's BACM analyses

include adequate evaluation of

analogous fugitive dust controls in other

areas. 29 It is possible that the

commenter is recommending

duplicative city ordinances that overlap

County-wide Regulation VIII. While

such redundancy could improve

compliance, it is generally not necessary

24 See section II.D.1 below.

2575 FR 8008, 8010 and proposal TSD pp. 5-7.

2640 CFR part 50, appendix K.

27 EPA's Air Quality System Preliminary Design

Value Report (May 18, 2010).

28 Cathedral City Municipal Code, title 8, chapter

8.54, Fugitive Dust Control; http://qcode.uslcodesl

cathedralcity/.

29 2009 PMlo SIP table 4.2 and 2005 BACM

analysis table 4.2.

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to meet CAA section 110(a)

enforceability requirements.

Finally, our proposed action only

addresses the ICAPCD controls for

certain PM10 source categories

encompassed by Regulation VIII, and

therefore does not address control of

open burning or many other air

pollution sources in Imperial County.

See also responses to comments SIP #1

and El #1.

SIP #6: Comite cites Vigil v. Leavitt,

381 F.3d 826, 834 (9th Cir. 2004) and

Hall v. EPA, 273 F.3d 1146 (9th Cir.

2001), in commenting that measures in

other areas can be considered BACM for

Imperial County and are per se feasible.

Comite further argues that what

constitutes BACM can strengthen over

time. In contrast, OWD does not believe

that Imperial County should apply

mitigation measures from other

geographic areas (e.g., SJVUAPCD and

Maricopa) that have different geologic

and other local conditions. Similarly,

COLAB believes that different cultural

practices prevent ICAPCD from blindly

implementing controls imposed in other

areas, although the ICAPCD and

SJVUAPCD CMP rules are very similar.

Still another commenter (0119) claims

that similar restrictions on construction,

OHVs, farmers, etc., in Las Vegas and

elsewhere have not been effective, and

there is no need for such draconian and

ineffective bureaucratic rules.

Response: EPA believes that it is

appropriate, when evaluating what

constitutes BACM for a given source

category, to consider controls that have

been adopted and implemented in other

geographical areas. EPA agrees that the

facts and circumstances in a given area

can affect what constitute BACM for

that area, but that this determination

must be based upon appropriate

consideration of relevant information

specific to that area.

Comite does not explain how the

cited cases support its position.

Nonetheless, we agree that in evaluating

BACM for Imperial County, ICAPCD

should analyze analogous measures in

other areas and that BACM may

strengthen over time. 30 Our proposal

identifies several significant

deficiencies in ICAPCD's analysis to

date. 31 While BACM is determined on a

case-by-case basis 32 and, as such, the

analysis can include evaluation of local

conditions that might make specific

controls economically and/or

30 General Preamble Addendum at 42013-42014. 31 E.g., OHV controls in Arizona Revised Statute

§ 49-457.03 and Clark County Air Quality

Regulations, section 90 (75 FR 8011, February 23,

2010).

32 General Preamble Addendum at 42010 and

42012.

technologically feasible in one area but

not another, 33 neither the 2009 PM10

SIP 34 nor the comment provides

sufficient detail to adequately address

the deficiencies identified in our

proposal.

OWD does not explain how Imperial

County differs so markedly from the San

Joaquin Valley and the Maricopa area

that it would be inappropriate to

consider BACM approved in those areas

as part of the evaluation of controls for

the same source categories in Imperial

County. Similarly, COLAB does not

elaborate on what "cultural practices" in

Imperial County would justify

disregarding approved BACM in the San

Joaquin Valley and the Maricopa area as

part of the evaluation of what controls

would be appropriate for comparable

source categories in Imperial County.

C. Emissions Inventory (El)

EI #1: Many commenters oppose

further OHV controls because they

believe OHVs contribute little to

Imperial County's PMio pollution

problem compared to other sources.

Commenters identify various sources

they believe are more significant and/or

should be further addressed instead,

including fallow fields, fireplaces, feed

lots, agricultural burning, pesticides,

dirt roads, inefficient street lights,

insufficient public transportation,

insufficient speed limit enforcement,

Interstate 8, the New River, the Salton

Sea, Arizona to the east, San Diego to

the west, Mexican roads, fires and

factories to the south, rain, wind,

erosion, dust storms and other natural

occurrences. These commenters include

OWD, 0096, 0097, 0150, 0139, 0152,

0180, 0192, 0194 and 0219.1.

Response: Our proposal explains that

BACM is required for all significant

PM10 source categories in Imperial

County, that windblown dust from open

areas is a significant PM10 source

category, and that OHVs greatly increase

emissions from open areas in Imperial

County. 35 Our proposal further explains

that ICAPCD has not demonstrated

implementation of BACM for open areas

with respect to OHVs. 36 These

conclusions are based on inventory

information prepared by ICAPCD and

ARB and used during development of

3 3 In this respect, we do not agree with Comite

that measures adopted in other areas are

automatically transferable to Imperial County.

34 "2009 Imperial County State Implementation

Plan for Particulate Matter Less Than 10 Microns

in Aerodynamic Diameter, Final," adopted by

ICAPCD Governing Board on August 11, 2009.

(2009 PM1 0 SIP).

35 Proposal TSD, pp. 5-8. 36 d. at p. 8.

Regulation VIII and the 2009 PMo

SIP. 3 7

The inventory in the 2009 PMo SIP

represents the most comprehensive

information currently available on OHV

emissions in Imperial County. 38

ICAPCD's analysis in the 2009 PMo SIP

concluded that windblown dust from

open areas was not a significant source

category, but this conclusion was

premised upon many exceedences of the

NAAQS being deemed to be the result

of exceptional events. However, EPA's

own conclusion regarding those

exceedences is that they were not

caused by exceptional events and, as a

result, we consider windblown dust

from open areas to be a significant

source category that is subject to the

CAA's BACM requirement. See response

to comment SIP #4 and responses to

Exceptional Events comments in section

II.D below. Therefore ICAPCD has failed

to meet the BACM requirement for

windblown dust from open areas, in

part because ICAPCD has not evaluated

what controls might be appropriate for

OHV activities in such areas.

EPA's action on the Regulation VIII

submittal does not address or depend on

whether additional controls may also be

appropriate for the various other sources

identified in the comments.

EI#2: One commenter (0188) had

driven past many farms in El Centro

during tilling and observes that the dust

was very minimal. Another (0201)

thinks more attention should be paid to

agriculture which the commenter

believes is exempt from many of the

environmental regulations.

Response: See response to comment

El #1. Similar to emissions from open

areas, EPA has concluded that

emissions associated with tilling on and

windblown dust from agricultural lands

are significant source categories in

Imperial County and, as such, ICAPCD

needs to meet the BACM requirement

for such sources. 39

The commenter (0201) concerned

about exemptions for agriculture did not

specify which regulations exempt

agriculture. As explained in our

proposal, however, because certain

agricultural-related activities constitute

a significant source category for PM10 in

Imperial County, ICAPCD is required to

meet the CAA's BACM requirements for

such sources. Any "exemptions" for any

such sources would need to be justified

and explained in the context of meeting

the BACM requirements.

EI #3: Several commenters claim that

EPA has not proved the impact of OHVs

37 Id. at pp. 5-8.

38 2009 PM1o SIP, Chapter 3; Appendix II.

39 Proposal TSD, pp. 5-8 and 9-11.

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on PM1 o levels sufficient to require

additional OHV regulations. OWD

notes, for example, that: (1) EPA did not

analyze extreme terrain, thermal

stability and other effects on winds in

the desert; (2) most emissions from open

lands come from undisturbed shrub/

grassland which are not anthropogenic

sources; and (3) ICAPCD's 2009 PM10

SIP, on which EPA relies, uses worstcase assumptions rather than actual soil

condition information to estimate that

OHVs represent less than 5% of the

County's total PM10 emissions (13.9 of

282 tpd). OWD states that 99% of these

total emissions relate to OHVs subject to

Federal and State stewardship.

Therefore OWD concludes that actual

OHV emissions are small compared to

worst-case estimates. OWD also

questions EPA's reference for the

estimate of 22 tpd of windblown PM10

from OHVs.

EcoLogic believes that EPA needs

monitoring in the Ocotillo Wells State

Vehicle Recreation Area (SVRA) and

other areas to show how specific OHV

activity affects sensitive receptors and

for EPA to identify OHV activity as a

major contributor to the County's PM1 o

problem. Another commenter believes

EPA lacks data tying PM to specific

OHV activities (0218.1), and several

commenters believe that any pollution

from OHVs is virtually immeasurable.

Several commenters believe additional

inventory analysis is particularly

important because OHV areas are far

from population centers and monitors

with PMo exceedances. One commenter

(0131) requests an unbiased third-party

study of OHV impacts. CDD explains

that PMo emissions from several

specific parks in Imperial County

should be low, partly because OHV

activity is prohibited. In contrast, CBD

supports EPA's claim that OHVs on

BLM land cause considerable PM10 in

Imperial County, and notes that BLM

previously estimated PM10 impacts from

OHV activities at the Aldodones Dunes

alone as high as 11 tpd on holiday

weekends.

Response: It is extremely difficult to

quantify and speciate accurately the

myriad sources of PMo emissions and

PM10 precursor emissions spatially and

temporally for purposes of modeling air

pollution impacts and developing cost

effective control programs. As a result,

emission inventories are constantly

being refined as more and better science

and data become available. However,

EPA, State and local air pollution

agencies must make policy and

regulatory decisions based on the best

information available to comply with

the CAA. As discussed in response to

comment El #1, the inventory and other

information underlying our proposal

regarding the emissions from OHV

activity and the impacts of such activity

represent the most comprehensive

information currently available.

Regarding specific concerns in this

comment:

(1) EPA's conclusion that BACM is

required for OHV activity relies on

emissions inventory estimates that

ICAPCD developed. If appropriate,

ICAPCD could choose to refine those

estimates to take into consideration

factors such as terrain, thermal stability

and other effects on winds in the desert,

as well as distances between OHV areas

and population centers and additional

third party analysis. Such refinements

are beyond the level of detail normally

used in inventories required by CAA

section 172(c)(3).40

(2) ICAPCD in its 2009 PM10 SIP

quantifies the impact of soil type and

land cover (e.g., shrub/grassland) and

degree of OHV disturbance in OHV

emission estimates relied on by our

proposal.41

(3) ICAPCD used the best available

information regarding soil types in open

areas and determined that the remaining

uncertainty does not affect the results of

the technical analyses.42

(4) Even OWD's 13.9 tpd OHV

emission estimate, which we believe is

too lOW, 4 3 exceeds the presumptive 5

pg/m 3 de minimis level for source

categories requiring BACM. 44

(5) The reference for 22 tpd of

windblown OHV emissions is

accurately explained in our proposal. 45

The comment that monitoring is

necessary in the Ocotillo Wells SVRA

and other areas before EPA should

require controls for OHV activities is

incorrect. As stated previously, under

CAA section 189(b) and EPA guidance,

BACM is required for all significant

source categories in the nonattainment

area, including windblown dust in open

areas caused by OHV activity.4 6 Thus

monitoring, which could provide

valuable information, is nevertheless

not necessary to determine which

source categories require BACM.

D. Exceptional Events (EE)

1. Background

On March 22, 2007, EPA adopted a

final rule to govern the review and

handling of certain air quality

monitoring data for which the normal

planning and regulatory processes are

not appropriate. 47 Under the rule, EPA

may exclude data from use in

determinations of NAAQS exceedances

and violations if a State demonstrates

that an "exceptional event" caused the

exceedances. Before EPA can exclude

data from these regulatory

determinations, the State must flag the

data in EPA's Air Quality System

database and, after notice and

opportunity for public comment, submit

a demonstration to EPA to justify the

exclusion. After considering the weight

of evidence provided in the

demonstration, EPA decides whether or

not to concur with each flag.

On May 21, 2009, ARB submitted

demonstrations for "high wind" events

that allegedly caused ten exceedances of

the 24-hour PM10 standard at various

monitors in Imperial County in 2006

and 2007. The demonstrations consisted

of the following support documents

(listed in Table 2) prepared by ARB,

ICAPCD, and ICAPCD's contractor,

ENVIRON:

TABLE 2

Description Document date Abbreviated title

Natural Event Documentation: Calexico and Westmorland, California-September 2,

2006.

Natural Event Documentation: Brawley and Westmorland, California-April 12, 2007

[enclosed with June 13, 2008 letter to Sean Hogan].

January 30, 2009 ...................

April 15, 2008 .........................

September NED. 48

Original April NED.

40 See, e.g., AP-42, Fifth Edition, Volume I,

Chapter 13: Miscellaneous Sources, 13.2.2-

Unpaved Roads, Final Section, EPA, November

2006. This document provides EPA guidance on

estimating emissions on unpaved roads and does

not, for example, account for road terrain. http://

www.epa.go vttn/chief/ap42/ch 13index.htmf.

412009 PM10 SIP, appendix III.B. result in a 5 pg/m 3 contribution, which equates to

422009 PM10 SIP, p. 3-2. about 6-8 tpd emissions. 4 3 In comparison to ICAPCD's 22 tpd estimate. 45 Id.

Proposal TSD, footnote 32. 46 See, e.g., proposal TSD, p. 5.

44As discussed on pp. 5-8 of the proposal TSD, "Treatment of Data Influenced by Exceptional

depending on the specific monitor, 2-3% of

Imperial County's annual inventory is calculated to Events," 72 FR 13560 (March 22, 2007) (EER).

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TABLE 2-Continued

Description Document date Abbreviated title

Natural Event Documentation: Brawley, Calexico, El Centro, Niland, and Westmorland, April 15, 2008 ......................... Original June NED.

California-June 5, 2007, Imperial County Air Pollution Control District [enclosed with

June 13, 2008 letter to Sean Hogan].

Natural Event Documentation: Brawley and Westmorland, California-April 12, 2007 March 12, 2009 ...................... April NED.

[addendum to June 13, 2008 submittal].

Natural Event Documentation: Imperial County, California-June 5, 2007 [addendum to March 12, 2009 ...................... June NED.

June 13, 2008 submittal].

As stated above in section I, on

December 22, 2009, EPA denied ARB's

request to exclude all of the

exceedances as exceptional events. The

basis for our decision is specified in an

enclosure which accompanied the

December 22, 2009 letter.49 By letter,

including Attachment A and Appendix

Al, dated March 3, 2010, ICAPCD asked

EPA to reconsider this decision. 5 °

Our proposal on Regulation VIII

explained that our 2009 EE decision led

to an adjustment of ICAPCD's

significant source analysis which in

turn led us to modify the list of

significant sources for which BACM

must be implemented in Imperial

County under CAA section

189(b)(1)(B). 51 As a result, our 2009 EE

decision was the subject of public

comments on our proposed action.

ICAPCD resubmitted its March 3, 2010

letter, including Attachment A and

Appendix Al, regarding our 2009 EE

decision as Appendix C to its March 25,

2010 comment letter on our Regulation

VIII proposed action. 52 EPA also

received comments pertaining to our

exceptional events decision from

Comite and CBD. A summary of these

comments and our responses follow.

2. Events Not Reasonably Controllable

or Preventable

EE #1: ICAPCD (Attachment)

disagrees with EPA's interpretation of

the requirement in the EER at 40 CFR

50.1(j) that in order for an event to meet

the regulatory definition of exceptional

event, such event must be "not

reasonably controllable or preventable."

Specifically ICAPCD takes issue with

EPA's statement in our 2009 EE decision

48 We refer to the natural event documentation in

these five documents, collectively, as the NEDs.

49 See footnote 2. We refer to our December 22,

2009 letter and the enclosure hereafter as "2009 EE

decision."

5o Letter from Brad Poiriez (ICAPCD) to Jared

Blumenfeld (EPA), March 3, 2010 with Attachment

A and Appendix Al.

51 See 75 FR 8010 and the proposal TSD, pp.

5-7.

52 We refer to ICAPCD's March 10, 2010 letter

with its Attachment A and Appendix Al,

collectively, throughout our responses to the

exceptional events comments in section i.D as

"Attachment."

that this criterion inherently implies "a

requirement that the State demonstrate

that anthropogenic sources contributing

to the exceedance caused by the event

were reasonably well controlled."

ICAPCD believes that under the plain

regulatory language it is irrelevant

whether "reasonable and appropriate"

controls are in place on the day of an

otherwise qualifying event when it can

be shown that such controls would not

reduce emissions and impact at the

monitor sufficiently to prevent the

exceedance. ICAPCD believes that it is

inconsistent with the intent of the CAA

for EPA to refuse to concur with an

exceptional event claim solely due to

EPA's dissatisfaction with the

stringency of certain controls when such

controls could not have prevented the

exceedance.

Response: ICAPCD mischaracterizes

both the plain language and the

regulatory intent of 40 CFR 50.1(j) by

reading the words "reasonably

controllable or" out of that section. The

regulation clearly requires a showing

that the event is not either reasonably

controllable or preventable, not as

ICAPCD would have it, that the event

cannot be controlled to the extent that

no exceedance would have occurred.

Furthermore, "control" as generally used

in the CAA and EPA guidance (e.g.,

RACT and BACM 53), and as defined in

the dictionary means to regulate or to

reduce the incidence or severity. 54 Thus

the meaning of the word "control"

undeniably differs from the words

"eliminate" or "prevent." Therefore, to

meet the "not reasonably controllable or

preventable" criterion in 40 CFR 50.1(j),

states must demonstrate that reasonable

controls were implemented to regulate

or reduce emissions regardless of

whether the controls would have

53 "BACM is the maximum degree of emissions

reduction of PMlo and PM-10 precursors from a

source * * * which is determined on a case-by-case

basis, taking into account energy, environmental,

and economic impacts and other costs, to be

achievable for such source through application of

production processes and available methods,

systems, and techniques for control of each such

pollutant." General Preamble Addendum at 42010.

54 Merriam-Webster's Ninth New Collegiate

Dictionary.

prevented exceedances. 55 Finally we

note that the relevance of dust controls

is inherent in the District's own

characterization of the "event" as the

combination of wind and dust

entrainment from anthropogenic and

nonanthropogenic sources. 56

As discussed in our 2009 EE decision,

the State failed to demonstrate that

reasonable controls were implemented

for anthropogenic sources contributing

to the exceedances, including

recreational OHVs and fallow

agricultural fields.5 7 Nor does ARB or

ICAPCD provide convincing evidence in

the NEDs or elsewhere to support the

claim that controls on these sources

could not have either prevented the

exceedances or reduced emissions.

EE #2: ICAPCD (Attachment) further

argues that the consequence of EPA's

action would be to require control

measures beyond the area's practical

abilities-a result the EER is specifically

designed to avoid. ICAPCD claims that

other specific provisions are in place to

prevent such difficulties, and ICAPCD

quotes from EPA guidance: "If emissions

from anthropogenic sources are reduced

to the point that it is no longer

technologically or economically feasible

to reduce those emissions further, and

the area still cannot attain the NAAQS,

the EPA may consider waiving the

serious area attainment date and

appropriate serious area

requirements." 58

Response: The provisions to which

ICAPCD refers are contained in CAA

section 188(f) which authorizes EPA to

waive subpart 4 requirements applicable

to serious PM10 nonattainment areas,

including BACM, where EPA

determines that anthropogenic sources

of PM10 do not contribute significantly

to the violation of the standard in the

area. Under section 188(f), EPA may

55 Similarly, EPA explained in the preamble to

the EER that analysis of exceptional events includes

consideration of whether anthropogenic activities

have been controlled to the extent possible through

use of all reasonably available reasonable and

appropriate measures. 72 FR 13560, 13566, footnote

11.

56 E.g., September NED, p. 9.

57 2009 EE decision, section 4.2.

58 General Preamble Addendum at 42008.

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also waive a specific date for attainment

of the PM1 o standard if the

Administrator determines that

nonanthropogenic sources contribute

significantly to a violation of the

standard.

In guidance, EPA has established the

same test for determining what

constitutes a significant contribution for

section 188(f) as is used for determining

the sources for which BACM must be

implemented under CAA section

189(b)(1)(B). 59 The passage in the

guidance, quoted in isolation by

ICAPCD, is preceded by a lengthy

discussion regarding the circumstances

under which a serious area such as

Imperial County could qualify for

section 188(f) waivers. That discussion

makes clear that before EPA will

consider waiving a serious area

attainment date and requirements for a

serious area that failed to attain the

standard by the serious area deadline,

the State must demonstrate that BACMs

for significant anthropogenic sources

have been implemented and that the

area cannot attain the NAAQS with the

implementation of additional control

measures to achieve at least 5% annual

emission reductions pursuant to CAA

section 189(d). As discussed above and

in the proposal,60 ICAPCD has not

shown that BACM has been

implemented as required by CAA

section 189(b)(1)(B) for all significant

source categories in Imperial County.61

Thus it would be difficult to show that

additional controls are "beyond the

area's practical abilities" or "no longer

technologically or economically

feasible" without a more thorough

BACM analysis.

EE #3: ICAPCD (Attachment) believes,

citing the preamble to the EER, that the

rule only requires reasonable controls

for anthropogenic sources within the

State.

Response: While Imperial County air

quality may be affected by emission

sources from areas outside California,

such as Arizona and Mexico, our 2009

EE decision relies on the lack of

demonstrated controls for

59Id. at 42004.

60 75 FR 8008, 8010-8012 and proposal TSD, pp.

7-11.

61 The 2009 PM1 o SIP for Imperial County that is

intended to address the 5% requirement in CAA

section 189(d) was adopted by ICAPCD in August

2009 but has not been submitted to EPA by ARB.

The plan concludes that the area would have

attained the PMo standard by the end of 2008 but

for transported emissions from Mexico and with the

"exclusion of PM10 measurements affected by highwind exceptional events." As a result of the claimed

exceptional events, with which we did not concur

in our 2009 EE decision, the plan also concludes

that "[t]he 5% yearly emission reductions

requirement does not apply to future years." 2009

PM1 o SIP, section 5.3.

anthropogenic sources within

California.

EE #4: ICAPCD (Attachment) believes

that EPA has not specified criteria for

defining de minimis anthropogenic

sources in the EER context, explained

how the EER justifies such criteria, or

described feasible analyses to

implement such criteria.

Response: As noted above, our 2009

EE decision stated that inherent in the

"not reasonably controllable or

preventable" criterion of the definition

of "exceptional event" in 40 CFR 50.1(j)

"is a requirement that the State

demonstrate that anthropogenic sources

contributing to the exceedance caused

by the event were reasonably

controlled." We also suggested that this

requirement be limited to "all non-de

minimis anthropogenic sources." 62 In

this case, however, rather than further

interpreting the EER, we relied on

statements in the NEDs acknowledging

anthropogenic contributions in order to

determine which anthropogenic sources

were contributing to the 2006 and 2007

exceedances.63

EE #5: ICAPCD (Attachment) opposes

the statement in EPA's 2009 EE decision

that "because implementation of BACM

is required in serious PMo areas such

as Imperial County under section 189(b)

of the CAA, it is appropriate to consider

that level of control in evaluating

whether reasonable controls are in place

for purposes of the Exceptional Events

Rule." Specifically, ICAPCD argues that

(1) such a standard would create a new

standard for exceptional event showings

that is inconsistent with the language

and intent of the EER which entails only "reasonable" and not "best" control of

anthropogenic sources; (2) the purpose

of the EER is to protect states from

consequences of reclassification as a

result of exceptional events; (3) by

definition, exceptional events fall

outside the normal planning process

and their analysis should not depend on

elements of the normal planning process

including designation status; and (4) the

meaning of "reasonable controls" for the

EER should not vary by an area's

nonattainment status and should not be

as stringent as BACM.

Response: As stated in our 2009 EE

decision and in the preamble to the

EER, EPA addresses the EER criteria,

including that the event must be "not

reasonably controllable or preventable,"

on a case-by-case basis considering the

weight of available evidence.64 Thus it

is appropriate to consider the totality of

622009 EE decision, section 4.2.

63 See id., section 4.2.1.

642009 EE decision, pp. 4 and 7; 72 FR 13560,

13569.

circumstances in Imperial County in

determining what constitutes "reasonable" controls. We note again

that the County has been designated

nonattainment and classified as

moderate or serious since 1990. The

area was reclassified to serious in 2004.

In evaluating rules as RACM or

BACM, EPA has long considered it

appropriate to consider local conditions

since what is technologically and

economically feasible in one area may

not be in another.65 Moreover, EPA's

2009 EE decision did not define

reasonable control as BACM in all cases

or suggest that the EER mandates such

an outcome. Rather, we stated that

"[b]ecause implementation of BACM is

required in serious PM10 nonattainment

areas such as Imperial County under

CAA section 189(b), it is appropriate to

consider that level of control in

evaluating whether reasonable controls

are in place for purposes of the

Exceptional Events Rule." 66 67 While

ICAPCD states that this is inappropriate

reliance on the normal planning

process, an area's nonattainment

designation and classification are

inherently part of the local conditions

that are appropriately factored into what

controls are reasonable for purposes of

the EER. We also noted that ARB had

failed to demonstrate any meaningful

analysis of BACM or any other level of

control for either OHVs or fallow fields,

despite apparent significant emissions

and available controls imposed

elsewhere.68

EE #6: ICAPCD (Attachment)

comments that OHV emissions were

quantified in the 2009 PM1o SIP at

EPA's request, but EPA ignored this

information in its analysis of the

exceptional event requests.

Response: It is the responsibility of

the State to submit demonstrations

addressing the EER criteria 69 to support

its exceptional event requests and it is

generally not appropriate or feasible for

65 See 57 FR 13498, 13540-13541 (April 16, 1992)

and the General Preamble Addendum at 42010.

66 2009 EE decision, section 4.2.2; 72 FR 70222.

67 We note that in EPA's Natural Events Policy

which applied prior to the EER, we stated that

"BACM must be implemented at contributing

anthropogenic sources of dust in order for PM-10

NAAQS exceedances to be treated as due to

uncontrollable natural events under this policy."

This requirement applied to moderate areas which

otherwise would not have been required to

implement BACM at all as well as to serious areas.

Thus, while the EER does not include such a

mandate, it is entirely appropriate and consistent

with the Agency's past practice to consider a BACM

level of control in assessing whether reasonable

controls are in place. Memorandum from Mary D.

Nichols, EPA, "Areas Affected by PM-10 Natural

Events," May 30, 1996, p. 5.

68 2009 EE decision, pp. 9-10.

69 40 CFR 50.14(c)(3).

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us to correct NED deficiencies by

searching for additional information.

Nonetheless, we did review the 2009

PM1 o SIP before preparing the 2009 EE

decision and did not ignore ICAPCD's

efforts to quantify OHV emissions in the

2009 PM1 o SIP. In fact, the 2009 EE

decision references these efforts which

undermine the assumption in the

NEDs 70 that windblown dust from

desert areas is entirely from nonanthropogenic sources. 71

EE #7: ICAPCD (Attachment) believes

it is not clear whether OHV sources

should be considered de minimis, what

controls EPA expects for illegal OHV

use, and why current regulations do not

constitute reasonable controls.

Response: As stated previously, the

State must demonstrate implementation

of reasonable controls in documentation

supporting exceptional events requests.

It is possible that ICAPCD/ARB may be

able to demonstrate in support of future

exceptional events requests that OHV

sources are de minimis, that there are no

reasonable controls for OHVs under

certain circumstances (e.g., certain

illegal uses), and/or that existing

regulations constitute reasonable

controls. The 2009 EE decision,

however, explains that the NEDs did not

provide meaningful analysis of any level

of control for OHVs, and that such

analysis should include as a starting

point evaluation of EPA's RACM

guidance 72 and regulations adopted

elsewhere under similar conditions. 73

EE #8: ICAPCD (Attachment)

comments that sand dunes are naturally

fully disturbed and that the 2009 PM1o

SIP conservatively projects that OHVs

contribute only 0.9 tpd (10%) to the

total windblown emissions from them.

Other commenters similarly question

EPA's assumption that OHVs disturb

desert crust. OWD, for example, notes

that dune laminae are often mistaken for

a crust but are broken by wildlife, foot

traffic and high winds.

Response: We agree that effective

control of fugitive dust is more difficult

for the sand dunes than for other parts

of Imperial County with different soil

types. As a result, the State may be able

to demonstrate in support of future

exceptional events requests, or for other

CAA purposes such as section

189(b)(1)(B) BACM, that dust control for

dunes should be different from and/or

less stringent than controls required for

other areas with different soil types.

However, the September NED failed to

provide meaningful analysis of

7

0 E.g., June NED, p. 2.

71E.g., 2009 EE decision, footnotes 12, 15 and 16.

72 57 FR 18070, 18072 (April 28, 1992).

73 2009 EE decision, pp. 8-9.

reasonable OHV controls for the sand

dunes or any other areas. This comment

has no bearing on the April and June

NEDs because the sand dunes were not

implicated by those events.

EE #9: ICAPCD (Attachment)

comments that OHV activity and related

direct PM10 entrainment should have

been negligible because of the high

winds during the April 12 and June 5,

2007 events and thunderstorms on

September 2, 2006. OWD notes that two

of the exceedance events occurred

during the OHV off-season and the third

occurred in April, when OHV use is also

low. Similarly, BLM comments that

OHV use is lowest when dust potential

is highest (June through September).

Response: Our 2009 EE decision

appropriately relies on OHV emission

information from the NEDs and the 2009

PM10 SIP which estimate large

windblown dust emissions and

significantly smaller directly entrained

emissions. 74 Thus, even if no OHVs

operate and entrain dust on any

exceedance days, previous 75 OHV

activity still contributes to PM10

emissions by disturbing surfaces that

subsequently emit windblown dust. As

a result, documentation supporting

future Imperial County exceptional

events requests for events with

significant emissions from OHV areas

should include analysis of reasonable

controls for OHVs even if there is no

OHV activity during the exceedances.

EE #10: ICAPCD (Attachment)

comments that Regulation VIII

agricultural controls are well beyond the

reasonableness level required in the

EER. ICAPCD further states that it and

ARB have discussed agricultural

controls with EPA for many years,

worked with EPA during development

of the 2005 BACM analysis, closely

modeled Rule 806 on SJVUAPCD Rule

4550 which EPA approved in 2004, and

received EPA testimony in 2005 that

Regulation VIII, including Rule 806,

fulfilled BACM. ICAPCD also points out

that the emission inventory in the plan

shows that agricultural lands are

significantly less emissive than most of

the non-populated areas in Imperial

County.

Response: Our 2009 EE decision

explains that neither Regulation VIII nor

any other programs require any level of

emissions control of certain fallow

fields in Imperial County. 76 Though

ICAPCD comments that emissions from

agricultural fields are smaller than

7

4E.g., 22 tpd windblown and 1.34 tpd entrained

emissions, 2009 EE decision, p. 9.

75 Particularly recent activity where there has not

been time or conditions to repair surface crusts.

76 2009 EE decision, section 4.2.3.

emissions from other sources in the

County, the NEDs for the exceptional

events requests do not identify any

anthropogenic sources as being de

minimis. Rather, there are summary

explanations that anthropogenic sources

are reasonably controlled through

Regulation VIII and other local

programs. 77 The only anthropogenic

source discussed in any detail is

agriculture in the April and June NEDs.

These NEDs rely on the Imperial

Irrigation District's (lID) fallowing

program as the basis for claiming that

reasonable measures were in place for

fallow fields which are not subject to

ICAPCD's Conservation Management

Practices (CMP) Rule 806.78 However,

there were approximately 32,000 fallow

acres in Imperial County in 2007 that

were not subject to either Rule 806 or

lID's program which is more than the

approximately 18,000 acres that were a

part of IID's program in 2007. 79 As

explained in our response to comment

EE #5, we stated in our 2009 EE

decision that it is appropriate to

consider a BACM level of control in

evaluating whether reasonable controls

are in place for purposes of the EER in

Imperial County. However, EPA found

no meaningful analysis of BACM or any

other level of control for fallow land

outside of IID's program referenced or

provided in the NEDs.

EE #11: ICAPCD (Attachment)

comments that EPA's 2009 EE decision

fails to mention Rule 806 in the

discussion of controls for agricultural

lands. ICAPCD notes that fallowed land

issues were included in the 2005 BACM

analysis 80 and concludes that failure to

address Rule 806 makes EPA's

conclusions regarding agricultural areas

suspect.

Response: EPA did consider and

reference Rule 806 in our 2009 EE

decision.81 Although the 2005 BACM

analysis includes incidental references

to fallow lands, neither it nor the NEDs

attempts to quantify the fallow acreage

in Imperial County. Nor has the State

demonstrated how any existing

windblown dust controls might

constitute BACM for fallow fields

outside of lID's program.

3. High/Unusual Wind Events

EE #12: Comite agrees with EPA's

disapproval of ARB's request to exclude

the monitored exceedances as

77 April and June NEDs, pp. 13-14, and

September NED, p. 18.

78 April and June NEDs, p. 13.

79 2009 EE decision, p. 9.

80 "Draft Final Technical memorandum:

Regulation VIII BACM Analysis," October 2005

(2005 BACM Analysis). 812009 EE decision, p. 9.

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exceptional events. In support of our

disapproval the commenter makes

several arguments: (1) That there is no

statutory or regulatory authority which

allows windblown dust from land that

has been disturbed by human activity to

be considered "natural;" (2) that while

the final rule includes specific language

regarding the treatment of

anthropogenic emissions associated

with fireworks and prescribed burns, it

does not include special provisions for

anthropogenic sources affected by the

wind; (3) that the portion of the

preamble which suggests dust from

anthropogenic sources may be treated as

natural events in certain circumstances

was a drafting error and is legally null;

(4) where the Act does allow for

consideration of human activity, it is

limited to activity that is unlikely to

recur at a particular location and

agriculture does not meet that

definition; and (5) regardless of whether

a high wind event is classified as "natural" or "human activity," such an

event exists only where the wind is

objectively a "high wind" and

sufficiently high to cause a monitored

violation even in light of the

implementation of whatever measures

are "necessary" to protect public health

under CAA section 319(b)(3)(A)(iv).

Response: Comite's support for our

decision not to concur with the State's

exceptional events claims is noted. We

agree with Comite that the events in

question are not due to human activity

that is unlikely to recur and that the

State failed to demonstrate that the

events qualify as natural events.

However our conclusions with respect

to natural events are not based on all of

the legal arguments proffered by the

commenter. We also are not relying on

that portion of the preamble that the

commenter correctly points out is a

legal nullity 82 and instead, where

appropriate, we rely on and cite to other

parts of the preamble regarding natural

events and high winds that remain

applicable. While EPA's views of the

statute and the EER differ from

Comite's, we need not address Comite's

arguments in detail because its intent

was clearly to support the outcome we

have reached regarding the exceptional

events claims.

EE #13: Comite cites additional

support for nonconcurrence with the

State's 2007 exceptional events requests

beyond what was relied upon by EPA,

namely that wind speeds were not

shown to be "exceptional" for the area

or "unusual" since the State relied on

flawed comparisons to average wind

speeds.

82 NRDCv. EPA, 559 F.3d 561, 565 (DC Cir. 2009).

Response: For the 2006 events, the

State did not assert that the winds were

unusually high. For both sets of 2007

events, the evidence provided by the

State did lead EPA to conclude that

winds were unusually high.83 However,

EPA's 2009 EE decision did not rely on

the State's conclusions about unusual

winds for any of the exceedances and

we note that this commenter does not

disagree with EPA's conclusions on the

exceptional events, or with EPA's

proposed limited disapproval of

Regulation VIII.

4. Clear Causal Relationship

EE #14: Comite agrees with EPA that

the State did not demonstrate there was

a clear causal relationship between the

exceedances and the events that are

claimed to have occurred, as required

under the EER. With regard to the 2007

exceedances, the commenter cites the

lack of sufficiently detailed source

attribution data. With regard to the 2006

exceedances, the commenter concludes

that the proximity and nature of the

thunderstorms that occurred in

northwest Mexico made them "unlikely"

to be the cause of the winds at Calexico.

This commenter also believes that the

possibility of any winds associated with

thunderstorm activity north of the

County being the cause of the

Westmorland exceedance is

"problematical at best."

Response: Comite's agreement with

EPA's 2009 EE decision regarding the

2006 and 2007 exceedances is noted.

EE #15: ICAPCD (Attachment) objects

to EPA's analysis of a section of the ARB

documentation that compares

September 2, 2006 to other days with

similar meteorological conditions in

order to establish a causal relationship

between the claimed high wind event

and the Calexico exceedances on

September 2, 2006. ICAPCD also rejects

EPA's concerns regarding the effect of

emissions from OHVs and fallow fields

on the September 2, 2006 Calexico

exceedances. ICAPCD concludes that

EPA's lack of sound technical

understanding regarding the

meteorological evidence and OHV and

agricultural emissions led EPA to

erroneously reject the State's finding of

a "clear causal relationship" for the

September 2, 2006 Calexico

exceedances.

Response: In its documentation

supporting its exceptional events

request, the State compared PMo

concentrations on September 2, 2006 to

those on fifteen other days that had

similar meteorology at Calexico.84 The

832009 EE decision, pp. 19-20.

84 September NED, pp. 12-14.

PM10 concentrations on most of the days

were low, but on August 18, 2002,

August 19, 2003 and September 2, 2006

the PM1o concentrations were high. The

concentrations on these days in 2002

and 2003 are described in attachments

to the State's Natural Events

Documentation 85 as being due to

transport from Mexico under high wind

conditions, and these conditions are

stated to be meteorologically different

than the other days at locations other

than Calexico itself. Thus winds at

Calexico were similar for all sixteen

days, but on these specific days the

wind elsewhere and the Calexico

concentrations are higher. The State

considered this to be evidence of an

association or causal relationship

between high wind elsewhere and high

Calexico concentrations.

While we acknowledge that we

misinterpreted the above portion of the

State's argument in our initial analysis,

our ultimate conclusion remains

unchanged. As we discussed in our

2009 EE decision,86 the State's argument

is flawed because there were in fact no

high wind measurements on September

2, 2006; instead, the State merely

assumed that wind speeds increased to

the east. As a result, the association

between the winds and concentrations

that was seen for the events in 2002 and

2003 may not reflect what occurred on

September 2, 2006. Thus our original

conclusion is still valid because the fact

remains that ARB's argument is founded

on speculation. As we explained in our

2009 EE decision,87 such speculation is

not adequate to establish a clear causal

relationship.

Furthermore, as also discussed in our

2009 EE decision,88 significantly lower

PM1 o measurements in neighboring

Mexicali contradict ARB's assertion that

the September 2, 2006 Calexico

exceedances were caused by windblown

dust from a large-scale, regional event

that originated to the south or southeast

of Calexico. Such an event would have

affected both Calexico and Mexicali.

ICAPCD itself concedes that its

explanation for the Calexico

exceedances does not account for the

difference in the PM1o concentrations

85 September NED, p. 12, and Attachment G,

"179B(d) 'But For' Analyses-High-Wind Events

from Mexico", excerpt from Technical Support

Document: Exclusion of PM10 Measurements in

Excess of the 24-Hour PM10 NAAQS for Imperial

County from 2001 through 2003 Due to Natural

Events and Emissions from Mexico, Volume I of II,

ENVIRON International Corporation, November

2004.

86 2009 EE decision, pp. 11 and 15.

87 Id. at p. 11. 8 8

Id. at p. 12.

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measured at the Calexico and Mexicali

stations.89

ICAPCD further offers what it

characterizes as the only three possible

explanations for the Calexico

exceedances, and suggests that EPA

should accept the long range transport

argument because it is the most

plausible one.90 To do so would be to

make a decision based on a

predetermined outcome rather than

reliable scientific data that establish a

clear causal relationship as required by

the EER.

ICAPCD's next objection to our

analysis of ARB's exceptional event

request with respect to the September 2,

2006 Calexico exceedances is that EPA's

concern regarding OHV and agricultural

emissions 91 is not relevant because

there are no OHV or domestic

agricultural lands south, southeast or

south-southeast of the Calexico

monitors. EPA disagrees. The September

NED states that the "source of the PM1 o

that impacted the Calexico stations

corresponds to lands east and southeast

of the Mexicali stations * * *" 92 In fact,

as shown in the TSD for this final

action,93 there is agricultural land

immediately east of Calexico. 94 As also

shown in the final TSD, 95 the southern

end of the Imperial Sand Dunes OHV

area is also directly east of Calexico,

though it is admittedly farther away.

Thus consideration of these sources was

not inappropriate.

In summary, we are not persuaded by

the above comments and we reject the

allegation that we did not have a sound

technical understanding of the claims

ARB made as to the cause of the

exceedances. We therefore reaffirm our

conclusion that ARB not only failed to

demonstrate that a high wind event

occurred, but also that there was a clear

causal relationship between the alleged

event and the September 2, 2006

exceedances at the Calexico monitoring

stations.

EE #16: ICAPCD (Attachment) states

that EPA mischaracterized some

evidence and inappropriately dismissed

other evidence provided by the State

regarding a causal relationship between

the claimed high wind event and the

Westmorland exceedance on September

89 ICAPCD Attachment A, Appendix A-1.

90 Id.

912009 EE decision, p. 14.

92 September NED, p. 15.

93 "Technical Support Document for EPA's Notice

of Final Rulemaking on Revisions to the California

State Implementation Plan, Imperial County Air

Pollution Control District Regulation VIII-Fugitive

Dust Rules 800-806" EPA Region IX, June 2010

(final TSD), Figure 1.

94 Similar land use maps were provided in Figure

3 of both the April and June NEDs.

95 Final TSD, Figure 1.

2, 2006, and that this led EPA to

erroneously reject the State's finding of

a clear causal relationship. The

comment has three parts, relating to

alleged EPA mischaracterizations of the

timing of high winds, direction of

thunderstorm travel, and wind

trajectories.

Response: In response to this

comment, we have again reviewed the

wind data provided in the September

NED and, as explained further below,

we believe our original conclusion in

our 2009 EE decision remains correct,

i.e., that the data presented by ARB did

not demonstrate a clear causal

relationship between the claimed high

wind event and the Westmorland

exceedance on September 2, 2006.

The first part of ICAPCD's comment

focuses on a statement made by EPA

that the increased wind at Oasis toward

Westmorland was simultaneous with

the concentration spike that occurred at

Westmorland during the 19th hour

rather than an hour or two before, as

would be necessary based on the

distance between the two locations.96

We agree with the comment that the

increased wind at Oasis did in fact

occur the hour before the concentration

spike. In addition, we stated that this

wind was directed toward Westmorland

when in fact it was directed toward the

east-northeast.

ARB presented the wind speed and

direction data in a tabular format that is

difficult to interpret.9 7 To more clearly

articulate why we do not believe these

data show a clear causal relationship

between the event and the exceedance,

we have presented the data in the final

TSD in a visual form that is more

readily understood.98 The arrows

represent the wind directions at Indio,

Oasis, Salton Sea West, and

Westmorland during each of the four

color-coded hours (e.g., all of the yellow

arrows represent the wind direction

during hour 17, etc.). The numbers

above each arrow represent the wind

speed for that hour, and the numbers

below the Westmorland arrows

represent the PM10 concentration. The

data show that the PM 10 concentration

spike occurred during hour 19.

ARB claimed that thunderstorm

outflows on September 2, 2006 led to

high wind locally to the northwest and

northeast of Imperial County, and that

dust generated there was carried to

Westmorland. More specifically, ARB

stated the following:

Very high winds were observed at the 17th

and 18th hours north of Imperial County,

96 2009 EE decision, p. 16.

97 September NED, Tables 1 and 2, and Figure 19. 98 Final TSD, figure 2.

both to the west (in particular at the Oasis

CIMIS station, see Table 1) and to the east

(see measurements at the Blythe, Ripley, and

Palo Verde stations, Table 1). These strong

winds were of very short duration and of

changing direction * * *, consistent with the

collapse of one or several thunderstorm cells

north of Imperial County * * *. Very sharp

peaks in PMlo concentrations were also

observed at the 19th hour at the Brawley and

Westmorland stations (and to a lesser extent

at the Niland station), and appear to be longrange effects of the same events (i.e.

collapsing thunderstorm to the north of

Imperial County) * * *. [A]n analysis of

wind direction at select stations between the

18th and 20th hours indicates that northwest

winds (e.g. 6 p.m. at the SSWand Indio

stations, 7p.m. at Oasis and Indio, and 8

p.m. at Indio) and east-northeast winds (e.g.

7 p.m. at the Niland and SSE stations) likely

carried air containing elevated PM10

concentrations from areas northwest and

northeast of Imperial County stations toward

the stations.(Emphasis added). 99

ARB's explanation first points to the

"very high" winds (of 23.2 mph)

recorded at the Oasis station and the

northwest winds at Salton Sea West

during the 18th hour as factors that

contributed to the exceedance. As a

preliminary matter, we note 100 that no

particular wind speed has been

established as "high" for Imperial

County. Further, winds with an average

speed of 23.2 mph are not what we

would consider "very high" in the

generally accepted meaning of the term.

With the exception of this value, the

data in Figure 2 of our final TSD show

that the winds in this area were not very

elevated. 101 We also note that the winds

at Oasis during the 18th hour had a

northerly component rather than a

southerly one, and while it is true that

the winds at Salton Sea West were

blowing toward Westmorland at this

time and that these winds could have

contained some of the dust that may

have been generated in the Oasis area,

the winds at Westmorland were blowing

in almost the opposite direction. It is

thus unclear how much, if any, dust

generated at Oasis during the 18th hour

was actually transported to

Westmorland.

ARB also points to the 7 p.m. winds

at Oasis (hour 19) as a contributing

factor. While these winds were directed

99 September NED, pp. 10-11.

1°°As we did in our 2009 EE decision, pp. 15 and

19.

1

0 1 EPA received comments on its proposed EER

which stated that we should replace the term "high

winds" with the term "wind-generated dust." In

response to those comments, EPA explained in the

final EER that the Agency chose to retain the

original language because it accurately connotes the

type of natural event that should be excluded under

this rule and it serves as an indicator concerning

the level of wind that caused the exceedance. See

72 FR 13560, 13566.

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toward Westmorland, the winds at

Salton Sea West had a distinct westerly

component so it is not clear that the

winds at Oasis continued on this path

past Salton Sea West. In addition, as for

the previous hour, the winds at

Westmorland were blowing counter to

the wind at Oasis and it is again not

clear that any dust generated north of

Imperial County was transported to

Westmorland during this hour as ARB

claims.

The State finally points to the 8 p.m.

winds at Indio as a contributing factor.

We find it unlikely that these winds

made a significant contribution to the

exceedance at Westmorland given that

they were recorded after the

concentration spike occurred and that

the winds at Oasis, Salton Sea West, and

Westmorland all had northerly

components that ran counter to the

winds at Indio.

As stated in our 2009 EE decision, 102

and as ARB stated in the paragraph

quoted above, the winds northwest of

Imperial County (particularly around

the Oasis and Salton Sea West areas)

were variable in speed and direction.

This variability is inconsistent with

ARB's hypothesis that the winds

remained at an elevated speed and along

a straight line over the 45 mile distance

between Oasis and Westmorland for an

hour or more. Thus it is anything but

clear that dust generated northwest of

Imperial County caused the exceedance

at Westmorland. As a result, EPA's

minor errors regarding the timing and

direction of the winds at Oasis do not

undermine the Agency's conclusion that

the contradictory evidence does not

support a finding of a clear causal

relationship.

The second part of ICAPCD's

comment on the causal relationship

regarding the Westmorland exceedance

argues that the speed and direction of

the increased winds (27.0 mph)

recorded at the Palo Verde station

during hour 17 are consistent with

transport to Westmorland and that the

uncertainty of the precise location of the

thunderstorms in time is not relevant to

a cause and effect analysis. The

commenter further states that EPA does

not appear to argue that the wind speed

or direction is inconsistent with

transport of dust from Palo Verde to

Westmorland.

While we agree with the commenter

that the winds at Palo Verde (which is

separated from Westmorland by a northsouth distance of about 24 miles) were

directed toward Westmorland during

the 17th hour, the winds at

Westmorland were consistently from the

102 2009 EE decision, p. 16.

south-southeast, southeast, and eastsoutheast directions beginning at the 6th

hour and lasting until the end of the

day. While it is remotely possible that

the winds that occurred at Palo Verde

during the 17th hour led to the transport

of dust to Westmorland, the EER

requires a demonstration of a clear

causal relationship and the limited data

available do not rise to that level.

We also disagree with the commenter

that the location of the thunderstorms

over time is not relevant to a cause and

effect analysis. The EER explicitly

mentions the use of data that show the

relationship in time between the event,

transport of emissions, and recorded

concentrations in exceptional event

demonstrations.103 Furthermore, in this

case, ARB's basic premise is that

"thunderstorm activity caused strong

outflow winds over areas in close

proximity to Imperial County monitors

* * * [which contributed] to the

elevated PM10 concentrations that were

recorded in Imperial County on that

day." '

0 4 ARB could have attempted to

provide more support for its case by, for

example, considering whether historical

radar data showed thunderstorms were

at various locations around the time the

high winds occurred.

Given the level of uncertainty as to

the cause of the concentration spike at

Westmorland during the 19th hour and

the statutory requirement that EPA's

exceptional events regulations be based

on the principle that protection of

public health is the highest priority, 1

0

5

we are again led to the conclusion that

the data before the Agency does not

establish a clear causal relationship

between the exceedance and the event

that is claimed to have occurred.

The third part of ICAPCD's comment

regarding causal relationship for the

Westmorland exceedance criticizes

EPA's use of wind trajectories from the

HYSPLIT model since it is expected to

capture the underlying flow pattern but

may not be able to capture the direction

of short-lived high winds that could

transport dust from the north to

Westmorland.

EPA acknowledges that the HYSPLIT

model uses meteorological data with

relatively coarse resolution, e.g., a 40

km grid, and that there may be shortlived or local deviations from the

overall wind flow. However, it remains

true that the HYSPLIT back-trajectories

are inconsistent with transport from

northern stations since they show winds

from the south. 106 The HYSPLIT data

103 72 FR 13560, 13573.

104 September NED, p. 2.

105 See CAA section 319(b)(3)(A)(i).

106 2009 EE decision, p. 17.

simply add to the list of inconsistencies

in the State's explanation. In addition,

ICAPCD's suggestion that the high

winds were "short-lived" is inconsistent

with ARB's hypothesis of straight line

transport from the Oasis or Palo Verde

stations for an hour or more over the

45-55 mile distance to Westmorland.

Thus EPA disagrees with this comment.

EE #17: ICAPCD (Attachment) makes

an additional two-part comment about

the causal relationship claim for the

September 2, 2006 exceedances at both

the Calexico and Westmorland

monitoring stations. In order to buttress

its argument that these exceedances

were not the result of recurring

anthropogenic sources within Imperial

Valley, ICAPCD first states that it is

extremely unlikely that all monitors in

the County would simultaneously have

had unusually high PM1 o concentrations

if the causes were local to the monitors.

The second part of the additional

comment states that since there were no

high winds throughout Imperial Valley

on September 2, 2006, the cause of the

exceedances could not have been

unpaved roads or agricultural or OHV

land within the Valley.

Response: With respect to the first

part of ICAPCD's comment, EPA

acknowledged the elevation of PM10 at

all monitors, but did not take a position

on whether the causes were local or

regional.107 Rather, we concluded that a

clear causal relationship had not been

demonstrated since the regional sources

alleged by ARB to be the cause were not

identified. Related to this lack of

identification of the contributing

sources, EPA found that the State did

not demonstrate that the event was not

reasonably controllable or preventable

as there was no attempt to analyze

controls on the non-local sources. Thus

this comment does not affect our

decision to not concur with the State's

exceptional event claims.

With respect to the second part of

ICAPCD's comment, as discussed above,

the State argued that high winds

associated with thunderstorm activity

led to the generation of dust north of the

County, which was then transported to

the Westmorland monitor. Even though

agricultural land and other

anthropogenic sources do exist in areas

north of the County including Oasis, 10 8

where the State claimed winds were

high, the State made no attempt to

analyze controls on contributing sources

outside the County in order to address

the EER requirement that the event must

be "not reasonably controllable or

preventable." Thus, this requirement

107 2009 EE decision, p. 14.

108 See Figure 1 in the final TSD.

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was not met even if the commenter's

arguments regarding transport were

correct. With respect to the Calexico

exceedances, the State speculated that

high winds occurred east and southeast

of Calexico based on extrapolation of a

west to east trend of increasing wind

speed. The same argument could have

been used to conclude that there was

high wind east of Calexico within

Imperial County, including over

agricultural and OHV lands. Therefore

the commenter's claim that there were

no high winds throughout the Imperial

County is not completely supported by

the State's own arguments that a high

wind event occurred.

5. Concentrations in Excess of Normal

Historical Fluctuations

EE #18: Comite cites additional

support for nonconcurrence beyond

what was relied upon by EPA.

Specifically, the commenter states that

numerous monitored exceedances

comparable to those that Imperial

County seeks to exclude from the data

have been measured in the County from

2003-2007. Therefore, the commenter

claims, the concentrations are not "in

excess of normal historical fluctuations"

as required by the rule and are not

exceptional events.

Response: EPA's conclusions about

the requirement that the events be

associated with measured

concentrations in excess of normal

historical fluctuations mainly relied on

the concentrations' rarity relative to past

measurements. For example, the

September NED states that the 167 pg/

m3 measurement at the Westmorland

station was in the 98th percentile of all

PM1 0 recordings at that station in the

2001-2007 time period. As explained in

our 2009 EE decision,19 we found

similar evidence that the exceedances

measured on the other days in question

also exceeded normal historical

fluctuations. However, we do agree with

the commenter that the monitoring data

for Imperial County continue to show

violations of the 24-hour PM1 o standard.

We believe that improvements to the

ICAPCD's rules will lead to

improvements in air quality and we

note that this commenter does not

disagree with EPA's conclusions

regarding the State's exceptional events

requests, or with EPA's proposal to

disapprove Regulation VIII.

6. Level of Documentation Required for

EER

EE #19: ICAPCD (Attachment) takes

issue with EPA's suggestions that

additional data and analysis would have

109 pp. 25-27.

helped establish causality for the 2006

Westmorland and the 2007 events.

Specifically, ICAPCD states:

Although EPA suggests that higher levels

of documentation for source attribution,

thunderstorm activity, or investigation of

other potential causes would be preferred,

EPA does not suggest reasonable, technically

implementable analyses to achieve these

higher levels of documentation. We would

question what technical analyses EPA

suggests should be conducted. We would

also question whether these analyses and the

required level of data are achievable or

realistic now or in the future for similar

events in Imperial County and in other areas

(particularly those surrounded by remote,

non-populated, non-monitored source areas),

and whether these analyses exceed the

requirements for SIP planning itself. EPA has

not (and, we believe, cannot) propose

reasonable, technically achievable

investigations and analyses superior to those

produced by the District and ARB that would

address EPA's stated concerns. Thus, we find

that both EPA's conclusions on causality and

EPA's position on the level of analysis

required to demonstrate causality are

incorrect and inconsistent with the purpose

of the EER * * *. Such a narrow application

of the EER will preclude states from

excluding from regulatory consideration

exceptional PM data that are completely

inappropriate for inclusion in the normal

planning process.

ICAPCD also includes a table on page

A-8 which cites specific passages of

EPA's 2009 EE decision pertaining to

source apportionment, satellite imagery,

and consideration of other causes.

Response: Regarding the need for

better source apportionment data, it is

important to identify contributing

sources when evaluating exceptional

event claims involving windblown dust

because it must be demonstrated that

anthropogenic sources contributing to

the exceedances at issue were

reasonably controlled. 10 Better source

identification is especially important in

situations where we do not have

confidence that all potential

anthropogenic sources are reasonably

controlled and where there are

exceedances just above the NAAQS

(such as the April 12, 2007 exceedance

at Westmorland) which may have been

preventable with additional controls. In

addition, the inability to identify the

source of the PM emissions associated

with a wind event (i.e., the "cause" of

the dust that led to the exceedance)

110 See, e.g., 2009 EE decision, p. 7 and our

responses to comments EE #s 1 and 4. See also 72

FR 49046, 49051 (August 27, 2007) and 72 FR

13560, 13566, footnote 11, explaining that the

weight of evidence approach to our analysis may

consider winds that produce emissions contributed

to by anthropogenic activities that have been

controlled to the extent possible through use of all

reasonably available reasonable and appropriate

measures.

hinders our ability to make affirmative

findings that the "clear causal

relationship" and "but for" provisions of

the EER have been satisfied. A Countywide monthly average emission

inventory such as the one used by ARB

that omits some source types (e.g.,

OHVs) is insufficient for these purposes.

While perhaps not required for all

demonstrations, our suggestion for a

wind field and a more highly resolved

inventory are not unreasonable given

ARB's failure in the present case to

demonstrate that reasonable controls

were in place for contributing sources.

Moreover, a more highly resolved

inventory would provide better support

for any future exceptional events claims

involving Imperial County. Another

method ARB could have potentially

considered for identifying the source of

the emissions and supporting its claim

of a causal relationship is to collect and

examine pollutant species-specific

information. As discussed in the EER

preamble,III such information may be

available through routine speciation,

monitoring networks, or from selective

laboratory analysis of archived

particulate matter filters for the day

thought to be impacted by an event. In

this case, such an analysis might have

helped ascertain how much of the PM10

that impacted certain monitors was from

agricultural sources versus natural

desert sources.

Regarding ICAPCD's objection to our

statement that the satellite imagery

provided was not frequent enough to

compare the images with the timing of

the concentration spike at Westmorland

during the 19th hour,112 we note that

ARB could have provided additional

information to supplement the satellite

imagery. Such information could

include, but may not be limited to radar

data and weather observations that note

the presence of blowing dust in areas

around the monitors.

Finally, ICAPCD takes exception to

our desire for better documentation

regarding the investigation of other

potential causes. In this regard, ARB

made the following statement: 113

(ICAPCD) investigated emission generating

activities during this episode, and found that

PMlo emissions for BACM controlled sources

were approximately constant before, during

and after the event. The District determined

that the * * * concentrations of PMo * * *

were instead primarily the result of windentrained dust * * * associated with a

mesoscale convective system * * *

Although the preceding passage

suggests that ICAPCD conducted an

11172 FR 13560, 13573.

112 2009 EPA decision, pp 17-18.

113 September NED, p. 2.

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active investigation of other emission

generating activities on the day of the

event, this claim is largely unsupported

except for an interoffice memo included

in Attachment H to the September NED.

The memo states that various records

were inspected in 2008 but that no

inspections were conducted on the day

of the event. We were thus left

wondering how a file review conducted

two years after the fact qualifies as an

investigation of emission generating

activities "during [the] episode" and

how ICAPCD came to the somewhat

substantial conclusion that emissions

from BACM controlled sources were

constant before, during, and after the

event.

E. OHV Controls

OHV # 1: ICAPCD believes that EPA

should have concurred with all of the

exceptional event requests associated

with high winds as discussed in the

Exceptional Events comments

summarized in section II.D above. As a

result, ICAPCD believes that windblown

dust from open areas is not a significant

source category in Imperial County, and

therefore is not subject to the BACM

requirement as part of the SIP.

Response: In our proposed action on

Regulation VIII, we explained why

windblown dust from open areas is

treated as a significant source category

subject to BACM." 4 We have not

received information in the comments

or elsewhere that changes this

conclusion or the related decision to not

concur with the State's exceptional

event requests for Imperial County. See

also responses to Exceptional Events

comments in section II.D above.

OHV #2: CBD comments that BLM

land is the largest PM 1o source in

Imperial County and should be subject

to the same controls as adjacent land.

CBD believes the Dust Control Plan

(DCP) requirement for BLM land in Rule

800 section F.5 is unenforceable, in

conflict with the CAA, while other areas

are subject to more stringent Regulation

VIII requirements.

In contrast, ICAPCD believes that Rule

800's DCP implements BACM, and that

Rule 800's exemption for BLM does not

relax other Regulation VIII

requirements. For example, Rule 800

section F.5.c requires BLM's DCP to be

consistent with Rules 804 and 805

except where otherwise prohibited, in

which case section F.5.e requires all

feasible control measures during offroad events. ICAPCD also notes that

where there are such prohibitions,

section F.5.d requires the DCP to

discuss and implement "other possible

114 Proposal TSD, pp. 5-7.

control measures" and that Rule 800

section D.3 requires the DCP to be

submitted to ICAPCD, ARB and EPA for

review and comment and to be updated

every two years.

ICAPCD believes BLM should be

treated separately in Regulation VIII

because there are many restrictions

imposed by a variety of laws other than

the CAA that apply to actions on

Federal lands and that the District's

involvement in these issues would

delay implementation of the PM control

program on BLM lands. ICAPCD also

believes that BLM should be treated

separately because some Federal land

uses preclude traditional dust controls

and because BLM's OHV areas are far

from Imperial County populations.

ICAPCD argues that even if Rule 800

section F.5.c corresponds to

requirements that are less effective than

those of Rules 804 and 805, such lower

stringency is both necessary and

appropriate given the special nature of

BLM lands.

BLM agrees that many traditional

BACM are not possible on Federal land

because of the large expanses of desert

ecosystems. BLM continues evaluating

the DCP, however, which has led to

closing areas and routes to vehicle use,

restoring closed surfaces to natural

conditions, hardening high traffic areas,

posting and enforcing speed limits,

educating desert users, and controlling

dust from non-OHV activities.

Response: BACM is required but has

not been demonstrated for OHV activity

on BLM land in Imperial County. 11 5

EPA guidance explains that this

demonstration should include

evaluation and documentation of the

technological and economic feasibility

of potential control measures, including

implementation of measures on a

limited basis if full implementation is

not feasible. As stated in our guidance,

"the documentation should compare the

control efficiency of technologicallyfeasible measures, their energy and

environmental impacts and the costs of

implementation." 116 ICAPCD's

demonstration should include careful

consideration of analogous controls

implemented on private lands in

Imperial County and on public lands in

Maricopa and Clark Counties and

elsewhere, as well as controls

recommended in EPA's RACM

guidance,117 and suggestions provided

115 Proposal TSD, pp. 7-8.

116 General Preamble Addendum at 42012-42014.

17 57 FR 18070, 18072.

in our proposal 118 and comments on the

proposal. 119

The evaluation of technological

feasibility may appropriately consider

the alleged "special nature" of BLM

lands. Such an evaluation, if conducted

appropriately, may be sufficient to

demonstrate that what constitutes

BACM for BLM land in Imperial County

is different from what constitutes BACM

in other geographical areas and for

private land in Imperial County. The

information provided in the comments

and Regulation VIII submittal, however,

is not sufficient to support such a

distinction. For example, ICAPCD and

other commenters have not

demonstrated how existing BLM

controls implement BACM in the Plaster

City areas, which are open to OHV

activity at all times, and, if such

controls do constitute BACM, why they

cannot be incorporated into Regulation

VIII and the SIP.

Furthermore, with regard to CBD's

comment concerning the enforceability

of DCPs, State and local requirements

that implement BACM are subject to the

enforceability requirement of CAA

section 110(a). As we stated in our

proposal, BACM has not been

demonstrated for OHV sources because,

among other things, none of the OHV

restrictions are in regulatory form and

submitted for inclusion in the SIP.120

OHV #3: OWD notes that California

State Parks (CSP) manages OHV

recreational activity in Imperial County

at Heber Dunes State Vehicular

Recreation Area, Ocotillo Wells SVRA,

and in an interdepartmental joint

management agreement at the Freeman

Properties immediately north of Ocotillo

Wells SVRA and east of Anza Borrego

Desert State Park. OWD also notes that

Ocotillo Wells SVRA alone represents

approximately 85,000 acres of managed

OHV recreational activity within

Imperial County. While much of this

land is designated trail riding only and

is primarily defined by terrain

constraints, OWD states that the

majority of the area is designated open

riding, where OHVs are not limited to

defined trails. Rather than implement

generalized BACM for OHV activity in

Ocotillo Wells SVRA and other State

Parks, OWD explains that it has adopted

State mandated soil standards, a habitat

monitoring system and other policies

tailored for the case-by-case conditions

found in each park unit. OWD believes

118 See proposal TSD, pp. 8 and 14-15.

119 Moreover, as stated in the General Preamble

Addendum at 42013, "any control measures that a

commenter indicates during the public comment

period is available for a given area should be

reviewed by the planning agency." 120 Proposal TSD, p. 14.

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that fencing, and then maintaining, a

vast amount of land is neither

economically nor environmentally

feasible. OWD also believes that

watering, laying gravel, or applying a

chemical solution to the miles of trails

that would be encompassed is neither

economically nor environmentally

feasible. In contrast, CBD argues that

further implementation of Rule 804 and

additional OHV controls may be needed

for State lands including the Ocotillo

Wells SVRA in order to attain air quality

standards.

Response: Rule 804 requires all

persons, including public entities such

as CSP, with jurisdiction over open

areas in Imperial County with over

1,000 square feet of disturbed surface

area to maintain a stabilized surface,

limit opacity to 20% and comply with

at least one of the following: (a) Apply

and maintain water or dust suppressant

to all unvegetated areas; (b) establish

vegetation on all previously disturbed

areas; or (c) pave, gravel or chemically

stabilize.121 OWD's comment

acknowledges that CSP has jurisdiction

over open areas with over 1,000 square

feet of disturbed surface area within

Imperial County. Because these areas

are not addressed by exemptions in Rule

800 section E or Rule 804 section D,122

these areas must comply with the above

requirements. However, from OWD's

comment, CSP is clearly not currently

complying with these requirements. As

a result of the inclusion of Rule 804 into

the SIP, these requirements will become

federally enforceable upon the effective

date of this final action, and such

noncompliance could result in civil

action under CAA section 113 and/or

304.

OHV #4: Various commenters argue

that controls suggested in our proposal

as part of the BACM analysis that

ICAPCD still needs to conduct would

not reduce PM1o impacts from OHVs in

Imperial County.

* Many commenters oppose further

restrictions during the summer,

claiming that OHV activity and

emissions are very low in Imperial

County due to high temperatures and

existing red sticker regulations that

restrict certain vehicles during the

summer. BLM concurs that OHV use is

already lowest in the summer, and

ICAPCD also concurs and argues that

OHV restrictions during the summer

would burden public resources without

1

2 1 iCAPCD Rule 804, sections B, C.29, E and F.

122 See also "Fugitive Dust Control Plan," Bureau

of Land Management El Centro Field Office, June

29, 2006; "Fugitive Dust Control Plan," Bureau of

Land Management El Centro Field Office, January

25, 2010 Draft; e-mail from Andrew Trouette (BLM)

to Andrew Steckel (EPA), May 24, 2010.

reducing emissions. However, one

commenter (0100) states that OHV use

during summer nights is a great activity

which creates minimal dust because

travel is at low speeds on established

trails. Another commenter (0204)

indicates that many promoters run OHV

races at night that allow for fun

recreational activity in cooler

temperatures. This commenter believes

night races decrease risks to spectators

which is more important than reducing

dust emissions. Some commenters also

observe that wind events can occur in

the summer and cause severe dust days.

By contrast, another commenter (0146)

believes that the desert is mainly dry

and free of wind in the summer.

* ICAPCD believes that restrictions

like those in place in Arizona, during

pollution advisory days, would be

unproductive because high-PM forecasts

in Imperial County only occur on highwind days when OHVs are not used.

* Many commenters (e.g., 0094)

observe that OHVs are already restricted

to certain areas, causing crowding and

injuries. ICAPCD notes that OHVs are

restricted to 11% of local BLM land, and

additional closure would probably shift

OHV activity and emissions to other

areas nearby. OWD also believes EPA's

action could force OHV users to other

areas, causing environmental effects

outside Imperial County.

* ICAPCD comments that EPA cannot

demonstrate that OHV restrictions

would reduce windblown dust

emissions because there is no basis for

EPA's contention that surfaces impacted

by OHVs would form any appreciable

crust given Imperial's low level of rain.

OWD similarly comments that crust

repair would be difficult due to the

limited rain in Imperial County.

Another commenter (0120) believes that

restricting OHV areas could increase

PMo emissions because more vehicles

in smaller areas would disturb more soil

that cannot crust over. See also

comment EE #8.

* OWD comments that fencing,

watering, gravelling or chemically

stabilizing miles of OHV areas is not

feasible. For example, water resources

are scarce and modification of existing

OHV trails could alter natural drainage

patterns and increase erosion.

Response: EPA believes that some of

the information provided in these

comments could be relevant

considerations in the comprehensive

BACM analysis that ICAPCD needs to

undertake in order to determine what

controls constitute BACM for OHV

activity in Imperial County. However, in

general, the comments are conclusory

and not supported by data, detailed

information, or other evidence that

would be required for an adequate

BACM demonstration under our

guidance.123 As summarized in the

guidance:

In summary, the State must document its

selection of BACM by showing what control

measures applicable to each source category

(not shown to be de minimis) were

considered. The control measures selected

should preferably be measures that will

prevent PM-10 emissions rather than

temporarily reduce them. The documentation

should compare the control efficiency of

technologically-feasible measures, their

energy and environmental impacts and the

costs of implementation.124

Furthermore, contradictions in the

comments also serve to illustrate that

there are fundamental factual questions

that need to be addressed about the

amount of OHV activity during different

seasons and different times of the day,

and the best ways to mitigate emissions

from such activities. At this juncture,

ICAPCD has not conducted an adequate

analysis.

OHV #5: Many commenters (e.g., 0108

and OWD) state that further OHV

restrictions would hurt the already

depressed local economy, and cite

potential effects on local business

owners, farmers, land owners, OHV

users, race car owners, construction

companies, ranchers, the Imperial

Irrigation District and others.

Commenters observe that recreational

activities generate substantial revenue

(0196), and one (0156.1) claims that

OHVs have contributed several hundred

million dollars to the local economy.

ICAPCD believes that the economic cost

of OHV activity restrictions is far more

than appropriate for BACM. For

example, ICAPCD estimates that closing

the Imperial Sand Dunes Recreational

Area would cost $370,000 to $640,000

per ton of PM1 o reductions. ICAPCD

provides specific references to support

its cost/benefit analysis. Another

commenter (0219) similarly believes

that additional OHV restrictions, such

as closing land in the summer, would

provide few benefits given the relatively

small emissions from OHVs, but would

have significant economic impacts.

Response: We appreciate the value of

OHV tourism to the local economy, and

agree that ICAPCD must consider

economic feasibility in BACM analyses

evaluating potential controls for

emissions from OHV activities.

However, the relevant inquiry in the

economic feasibility analysis required in

BACM determinations is "the cost of

reducing emissions from a particular

source category and costs incurred by

123 General Preamble Addendum at 42010-42014.

1

2 4

Id. at 42014.

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similar sources that have implemented

emission reductions." 125 In this case,

the cost of OHV restrictions on OHV

area owners (i.e., the State and Federal

governments) and users would appear to

be minimal, and the secondary

economic impacts on businesses

supporting OHV tourism are not

relevant to the required BACM analysis.

In any event, ICAPCD needs to evaluate

the economic feasibility of potential

controls, including those adopted in

other areas, in determining what

controls constitute BACM in this area.

OHV #6: EcoLogic asks EPA to clarify

whether and where OHV restrictions are

being contemplated in the Imperial

Sand Dunes Recreation Area and

elsewhere and to what extent OHV

activity on Federal land is subject to the

proposed rule or ICAPCD jurisdiction.

EcoLogic and another commenter (0141)

also request clarification on which of

the 250 square miles of OHV areas EPA

is asking ICAPCD to evaluate for closure

and what the basis is for claiming that

these areas are likely to impact

populations.

Response: State and Federal agencies

are subject to many local requirements

including Regulation VIII and other air

quality related ICAPCD rules. 1 2 6 Our

proposal explains why ICAPCD must

analyze whether additional controls

(potentially including closure) are

appropriate for public land in Imperial

County open to OHVs, which ICAPCD

estimates at over 250 square miles.127

We did not identify any specific

geographic areas needing more or less

analysis or control or having more or

less impact on populations. Rather, in

the analysis ICAPCD should consider all

potential available OHV controls in all

OHV areas in Imperial County and,

where feasible, should consider whether

different areas within the County have

different impacts on populations or

areas with exceedances of the NAAQS.

OHV #7: Several commenters believe

additional OHV restrictions should be

analyzed and/or incorporated into

Regulation VIII. CBD believes that OHV

requirements in Rule 804 are too vague

to be enforceable as required by CAA

section 110(a), particularly regarding

BLM and State managed land. CBD

believes Regulation VIII should require

specific BACM measures, such as

restrictions on the number of OHV

vehicles operating each day, to improve

emission quantification and control.

CBD believes such carrying capacity

caps or other restrictions should also

address weather conditions when they

125 General Preamble Addendum at 42013.

126 See CAA section 116.

127 See, e.g., proposal TSD, pp. 8 and 13-15.

exacerbate PM10 emissions, such as

during windy weather and the summer.

Comite comments that ICAPCD should

analyze whether OHV permit

requirements, such as those that are

required in San Bernardino County,

should be required in Imperial County.

Comite also believes that ICAPCD

should analyze controls described in the

California State Parks Off-Highway

Motor Vehicle Recreation Division's

2008 Soil Conservation Standard and

Guidelines. 128 Lastly, instead of

decreasing the size of OHV areas, one

commenter (0120) suggested rotating

OHV areas to help surface crust

formation.

Response: The commenters as a group

make constructive suggestions that

would be appropriate for consideration

in a comprehensive evaluation of BACM

for this source category. We believe

ICAPCD should analyze all potential

available OHV controls to meet the

CAA's BACM requirement, including

those mentioned in the comments and

those adopted in other areas, pursuant

to EPA guidance.129

F. Definition of Disturbed Surface (DS)

DS #1: ICAPCD believes the term

"disturbed surface" is self-evident and

that no questions have been raised about

it since rule adoption. ICAPCD believes

Rule 804 is clear that an area is deemed

disturbed if it shows any sign of manmade disturbance (e.g., vehicle traffic)

and the owner/operator cannot prove

that the area meets the characteristics of

a stabilized surface. ICAPCD is willing

to define this term more clearly during

the next revision to Rule 101, but

strongly objects to EPA disapproving

Regulation VIII on this basis. In contrast,

CBD supports EPA's concerns regarding

this definition in Regulation VIII, and

further believes the definition should be

tailored to Imperial Valley and

explicitly include open areas on BLM

land that emit significant PM10

including the Algodones Dunes. In this

regard, CBD suggests specific edits to

SJVUAPCD's analogous rule.

Response: We believe the explanation

provided in ICAPCD's comment is a

logical interpretation of the undefined

term in its regulation. However, we also

believe that alternate definitions are

possible (such as that recommended by

CBD in its comment), and it is common

practice to define all terms used in rules

that are needed in order to ensure

clarity and enforceability. We encourage

ICAPCD to clarify its regulation by

128 Submitted as Exhibit D to Comite comment

letter.

129 See, e.g., General Preamble Addendum at

42012-42013.

including an appropriate definition of

this critical term and to consider CBD's

recommendations for the wording of the

rule.

G. Unpaved Road (UR) Controls

UR #1: ICAPCD projects that control

of unpaved non-farm roads provides

55% of Regulation VIII's emission

reductions. ICAPCD believes this

demonstrates a good faith effort to

reduce PM10 emissions from road

stabilization, and asserts that the County

is trying to increase funding for such

projects. ICAPCD states that the $2

million/year available to the County

Department of Public Works (PWD) for

road maintenance and stabilization

reflects great needs and low availability

of public funds in the County.

According to ICAPCD, this budget is for

maintenance of 1,350 miles of paved

roads which require resurfacing every

10-15 years, or 90 miles of extensive

maintenance each year. Thus, ICAPCD

argues that allocation of 9% of this

budget to stabilize 19 miles of unpaved

road represents, contrary to EPA's

assertion, the most expedited schedule

possible with the present level of

available funding.

Response: Where economic feasibility

of control depends on public funding,

EPA will consider past funding and the

future availability of funding sources to

determine if a good faith effort is being

made to implement BACM

expeditiously.130 The fact that unpaved

road controls provide 55% of Regulation

VIII's estimated emission reductions is

not in itself sufficient to demonstrate

good faith efforts to control road dust

expeditiously. Alternatively, for

example, this high percentage of the

total amount of reductions could occur

if other sources are under-controlled or

are less feasible to control. Nonetheless,

EPA believes that some of the

information ICAPCD provides in its

comment on this point could help to

demonstrate a good faith effort to

control road dust expeditiously. Given

ICAPCD and Imperial County's limited

resources, we do not believe this

analysis needs to be exhaustive, but it

should be more thorough and

documented than presented in the

Regulation VIII submittal and this

comment. For example, ICAPCD

indicates in this comment that the

County is trying to increase funding for

road stabilization but provides no

documentation to help establish this

point. Nor has ICAPCD explained how

the road stabilization budget was

derived in light of various Federal,

130 Proposal TSD, p. 16, and General Preamble

Addendum at 42013.

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State, and local (including local

Measure D) funding sources for public

works construction and maintenance, or

otherwise provided the demonstration

contemplated by the relevant EPA

guidance. 131

UR #2: ICAPCD disagrees with EPA

that there could be problems enforcing

Rule 805 section E.7. As evidence,

ICAPCD explains that Imperial County

PWD is meeting its commitment to

implement its submitted plan, which

includes stabilizing different unpaved

roads each year and maintaining all

stabilized roads as intended by the rule.

Response: CAA section 110(a)

requires that control measures be

enforceable. While Rule 805 section E.7

requires that a compliance plan be

submitted to ICAPCD, the rule is not

clear about the specific requirements of

the plan (i.e., that the County must

stabilize different roads each year and

must maintain all stabilized roads) and

does not contain a mandate that the

terms of the plan be carried out.

Evidence that Imperial County PWD is

in fact currently implementing the plan

is not sufficient to ensure enforceability

as required by the CAA.132 ICAPCD

should revise the rule to clarify this

section consistent with enforceability

requirements of CAA section 110(a).

UR #3: Comite believes that ICAPCD

should incorporate additional

restrictions into Regulation VIII,

including property line visible

emissions (VE) limits such as those

adopted by Maricopa County and

SCAQMD, dust controls for unpaved

roads subject to Rule 805 section E.7,

and other more stringent requirements

adopted by SCAQMD, SJVUAPCD,

Maricopa County and Clark County.

Response: ICAPCD's analysis of

BACM did consider controls

implemented in other areas, including

those adopted by SCAQMD, SJVUACPD,

and Maricopa and Clark Counties. Our

proposal TSD recommends several

specific controls from these areas for

further consideration by ICAPCD,

including imposition of a fence-line

opacity standard. 13 3

However, with the exception of the

deficiencies identified in our proposal,

we believe that ICAPCD sufficiently

analyzed controls in other areas for

potential BACM.1 34 For example,

ICAPCD explains that SCAQMD has

only a 0% fence-line opacity standard,

whereas ICAPCD and other agencies

with adopted rules approved as BACM

131 See proposal TSD, p. 16.

132 See id., p. 9.

1

3 3

Id., p. 11.

134 2005 BACM analysis, chapter 4, and 2009

PM1 SIP, table 4.2.

all have a similar general 20% opacity

standard applicable everywhere, and

not just at the fence-line.1 3 5 ICAPCD

claims that SCAQMD's 0% fence-line

standard is less stringent than a general

20% standard. While it is difficult to

compare the two standards,136 we do

not have evidence that SCAQMD's

standard is more stringent than the

general standard used by ICAPCD and

by other air districts.

UR #4: One commenter (0154) states

that it is not feasible or cost effective to

eliminate all dust from dirt roads.

Response: We agree with this

comment. Neither Regulation VIII nor

our proposal or this final action assumes

that dust emissions can be completely

eliminated from farm and non-farm dirt

roads.

H. Border Patrol (BP) Controls

BP #1: ICAPCD comments that Rule

800 section F.6.c does not explicitly

exempt BP from fugitive dust controls,

but requires BP to control dust from

roads it owns/operates consistent with

Rule 805 except where inconsistent

with BP's authority or mission. ICAPCD

indicates that, while BP does not own

any roads, it uses public roads to

accomplish its mission, and some roads

adjacent to the border are used

exclusively by BP. ICAPCD states that

most of these roads are below Rule 805's

applicability threshold, are located in

remote areas that are for the most part

restricted to BP vehicles, and PM10

controls are not feasible and are

inconsistent with BP's mission. ICAPCD

explains that although BP neither owns

nor operates these roads, BP is

committed to implement PMo controls

such as vehicle speed restrictions and

access controls. ICAPCD indicates that

since adoption of Regulation VIII, BP

has submitted two productive DCPs.

Therefore, ICAPCD disagrees with EPA's

recommendation to remove or narrow

the exemption for BP activities, and

proposes to continue addressing BP

through a DCP requirement to insure

that BP continues controlling fugitive

dust.

Response: First, we note that nothing

in our proposal affects Regulation VIII's

requirement for BP to develop and

implement DCPs pursuant to Rule 800

sections F.6.a and F.6.b. However,

ICAPCD's explanation is unclear as to

whether or not BP operates any roads

135 2005 BACM analysis, p. 21.

136 For example, a 40% opacity plume in the

middle of a large property that disperses to 0%

opacity by the property fence-line violates

ICAPCD's rule but not SCAQMD's. Conversely, a

10% opacity plume that disperses to 5% opacity by

the fence-line violates SCAQMD's rule but not

ICAPCD's.

subject to the rule. If ICAPCD can

support its assertion that BP neither

owns nor operates such roads, the

exemption in Rule 800 section F.6.c. is

simply unnecessary and should be

removed. If BP does own or operate

such roads, we continue to believe that

the exemption is unnecessarily broad

and should be removed or narrowed and

demonstrated to be consistent with

BACM requirements.

ICAPCD offers no evidence or

explanation to support its contention

that Rule 805 requirements are

potentially inconsistent with BP's

authority and/or mission. We also note

that BP has not raised concerns with our

proposal, although we informed BP of it

before publication. EPA appreciates

BP's efforts to limit PM10 pollution

through DCPs. Our concern, however, is

with ICAPCD's Regulation VIII

submittal and the lack of clarity in, and

analysis to support, the actual

provisions in Regulation VIII intended

to govern these activities.

BP #2: OWD comments that BP

frequently goes off-road within Ocotillo

Wells SVRA, beyond OWD's control.

Response: Rule 804 section E imposes

requirements on owners of open areas

such as Ocotillo Wells SVRA regardless

of who owns vehicles driving on the

open areas. Nothing in our proposal

would affect these existing ICAPCD

requirements.

L Unpaved Farm Roads and Traffic

Areas (UFRTA) Controls Introduction

The comments summarized in this

section and sections II.J and K relate to

ICAPCD Rule 806, Conservation

Management Practices. In discussing

our proposal regarding Rule 806, a

number of these comments address

various aspects of analogous rules

adopted by State and local agencies in

California and Arizona for controlling

PM10 from agricultural sources. All of

these rules are menu-based and as such

divide the control measures, known as

conservation management practices

(CMPs) or best management practices

(BMP), into three or more menus known

as "categories." We provide the

following information on these rules as

an introduction to inform our responses

to the comments in this section and

sections II.J and K.

ICAPCD Rule 806, Conservation

Management Practices, is a menu-based

rule that has four categories:

* Land preparation and cultivation.

* Harvesting.

* Unpaved roads.

* Unpaved traffic areas.

All persons who own or operate an

agricultural operation site of forty acres

or more are required to implement one

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CMP from each of these categories, categories from Rule 806 and the other

Table 3 summarizes the relevant menu based rules to which we refer:

TABLE 3

Catgores or n-feld Categories for unpaved

State or local agency Rule Area Categories agricultural for operations on-field Ag. Agrodantafi roads and traffic

areas

Imperial County APCD (ICAPCD) 806 .................................. Imperial County .............. U Land Preparation and U Unpaved Roads.

Cultivation (including

tillage).

0 Harvesting .................. U Unpaved Traffic Areas.

San Joaquin Valley Unified 4550 ................................ San Joaquin Valley Plan- U Land Preparation and U Unpaved Roads.

APCD (SJVUAPCD). ning Area. 137 Cultivation (including

tillage).

0 Harvest ....................... U Unpaved Traffic Areas.

0 Cropland-Other.

Arizona Department of Environ- Arizona Administrative Phoenix Planning U Tillage and Harvest .... U Noncropland.

mental Quality (ADEQ). Code (A.A.C) R18-2- Area. 13 8

610 and R18-2-611.

0 Cropland.

Great Basin Unified APCD 502 .................................. Alpine, Inyo, and Mono U Land preparation ........ U Unpaved Roads.

(GBUAPCD). Counties. 139

0 Harvest ....................... U Unpaved Traffic Areas.

0 Other Cultural Practices.

South Coast AQMD ..................... Rule 403 And Agricul- South Coast Air U Active Conservation U Unpaved Roads.

tural Handbook. Basin. 140 Practices.

0 Inactive Conservation

Practices.

South Coast AQMD ..................... Rule 403 And Coachella Coachella Valley Plan- U Active Conservation U Unpaved Roads.

Valley Agricultural ning Area. Practices.

Handbook.

0 Inactive Conservation

Practices.

We also refer below to SJVUAPCD's

Rule 8081, Agricultural Sources, which

has opacity and stabilization

requirements for high traffic agricultural

unpaved roads and traffic areas.

UFRTA #1: Comite believes that

California has not demonstrated why

agricultural paved and unpaved roads

should be subject to less stringent

requirements than other roads in

Imperial County (i.e., those subject to

Rule 803 regarding track-out/carry-out

and Rule 805) and cites San Joaquin

Valley where such roads must meet

CMPs as well as general requirements.

137 SJVUAPCD's jurisdiction includes the entire

counties of San Joaquin, Stanislaus, Merced,

Madera, Fresno, Tulare, and Kings and part of Kern

County. SJVUAPCD does not include the parts of

East Kern that are not in the San Joaquin Valley Air

Basin. See 40 CFR 81.305.

138 The Phoenix Planning Area includes Maricopa

County and a portion of Pinal County. See 40 CFR

81.303.

139 See section 1 and 2 of GBUAPCD Rule 502.

Also see 40 CFR 81.305.

140 SCAQMID's jurisdiction includes the South

Coast Air Basin and the Coachella Valley Planning

Area. For a description of the boundaries of the Los

Angeles-South Coast Air Basin Area and the

Coachella Valley Planning Area, see 40 CFR 81.305.

The South Coast Air Basin includes all of Orange

County and the more populated portions of Los

Angeles, San Bernardino, and Riverside Counties.

The Coachella Valley Planning Area includes

central Riverside County in the Salton Sea Basin.

In contrast, ICAPCD and the Farm

Bureau believe Regulation VIII is more

stringent regarding unpaved farm roads

and traffic areas than analogous rules in

other areas even though Imperial

County farm roads and traffic areas are

not subject to opacity limits. These

latter commenters note that Rule 806

requires CMPs for all unpaved roads

and traffic areas regardless of vehicle

trips per day (VTD), unlike SJVUAPCD

Rule 4550. COLAB also explains that

ICAPCD Rule 806 was designed to

address all unpaved roads by applying

to parcels greater than 40 acres (97% of

farmland in Imperial County) compared

to SJVUAPCD's Rule 4550 which

addresses roads on parcels larger than

100 acres (91% of farmland in the San

Joaquin Valley). Lastly, ICAPCD and the

Farm Bureau assert that most private

unpaved farm roads are less used and

are therefore below Rule 805's 50 VTD

threshold. Regardless of VTD, however,

these latter commenters argue that

owners of these roads must implement

Rule 806 CMPs.

Response: EPA's proposal noted that

ICAPCD has not demonstrated BACM

for unpaved farm roads and traffic areas

because of the exemption in Rule 805

section D.2 from opacity and

stabilization requirements applicable to

non-agricultural operation sites. EPA

further noted that SJVUAPCD does not

provide such an exemption, and

ICAPCD had not justified such an

exemption. 141

ICAPCD and other commenters do not

offer evidence that Regulation VIII is as

stringent as comparable controls in this

regard, but instead claim that Regulation

VIII is more stringent in other respects.

For example, no commenter disputes

our conclusion that an unpaved farm

road with 75 VTD would be subject to

opacity standards in SJVUAPCD's Rule

8081 but not in ICAPCD's Regulation

VIII. However, ICAPCD and others argue

that the applicability threshold for

unpaved farm roads subject to Rule 806,

for example, is more stringent than

SJVUAPCD's analogous requirements.

Because opacity and surface

stabilization requirements on heavilyused farm roads and traffic areas are

being implemented in other areas, we

believe that, absent an adequate

explanation, these requirements are at

least presumptively BACM for this

source category in Imperial County.

Accordingly, these controls should be

evaluated as potential BACM by

ICAPCD. However, as stated previously,

ICAPCD may consider conditions

1

4 1

Proposal TSD, pp. 8-9.

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specific to Imperial County in a revised

BACM evaluation for unpaved roads

and traffic areas, as appropriate.

We also agree with Comite that it is

not clear why Rule 803 section D.1

exempts farm roads and traffic areas

from certain carry-out and track-out

requirements that apply to similar nonfarm roads. We encourage ICAPCD to

consider removing this exemption,

although such a rule modification is not

mandated by the CAA at this time

because carry-out/track-out has not been

identified as a significant source

category subject to the BACM

requirement.

UFRTA #2: Comite believes that Rule

806's CMPs are not sufficiently specific

regarding agricultural unpaved roads

and traffic areas. In contrast, ICAPCD

comments that Rule 806 section F.6

requires CMP plans to include other

relevant information, which gives

ICAPCD authority to require adequate

specificity. COLAB also comments that

the CMP forms provided in the rule are

examples and if the relevant

information was provided the form

could be changed.

Response: Issues raised regarding

specificity of CMPs for unpaved roads

and traffic areas are similar to issues

raised regarding the specificity of CMPs

for other agricultural operations. See

response to comment AL #3 below.

J. Agricultural Land Controls (AL)

See Introduction in section 11.1 above.

AL #1: ICAPCD comments that Rule

806's CMP requirements are similar to

requirements adopted by SJVUAPCD,

Maricopa County 142 and SCAQMD,143

and are directly based on SJVUAPCD

requirements that EPA approved as

BACM in 2004, citing 69 FR 30035.144

ICAPCD asserts that the individual

CMPs in Rule 806 are similar to those

found in SJVUAPCD Rule 4550 and

GBUAPCD Rule 502 and concludes that

the only differences in the rules are due

to differences in local agricultural

practices. The Farm Bureau also states

that there is little difference between

GBUAPCD and ICAPCD control

measures.

Response: We agree that many

individual CMPs and requirements in

the rules outlined in Table 3 are similar.

However, this overall similarity does

not affect the two specific BACM

deficiencies in ICAPCD Rule 806 for

tilling and harvesting emissions

identified in our proposed action. 1 4 5

One of these deficiencies concerns the

lack of sufficiently defined requirements

in contrast to the application submittal

and review processes in the SJVUAPCD

and GBUABCD rules that insure more

effective implementation and

enforcement of the requirements.' 46 The

other deficiency is related to the number

of CMPs required by Rule 806. Rule 806

section E requires one CMP from the

"land preparation and cultivation"

category and one CMP from the

"harvesting" 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 "other cultural

practices" categories.' 47

AL #2: ICAPCD believes that EPA

disregards that Imperial County crops

are irrigated, and that continued

irrigation and conditioning of soil

dramatically reduce its potential for

both entrained and windblown

emissions. ICAPCD believes this fact

must be considered when comparing

Rule 806 to rules in other areas.

Response: As stated previously above,

EPA agrees that it is appropriate to

consider conditions specific to an area

when evaluating potential BACM. 1 48

However, most of the harvested

cropland in other areas subject to

comparable requirements is also

irrigated. The following table shows

data from the 2007 Census of

Agriculture 149 for the total acres of

harvested cropland and the acres of

irrigated harvested cropland in relevant

counties in California and Arizona.

Imperial County and the counties in the

SJVUAPCD 15o are included. Riverside

County in California 15 and Maricopa

County in Arizona are also included.

TABLE 4

Irrigated Total harvested harvested

County, State cropland cropland

(acres) (acres)

Im p e ria l, C A .....................................................................................................................................................

M a ric o p a , A Z ...................................................................................................................................................

R iv e rs id e C o u n ty , C A ......................................................................................................................................

S a n J o a q u in C o u n ty , C A ...................................................................................................

S ta n is la u s , C A .................................................................................................................................................

M e rc e d , C A ......................................................................................................................................................

M a d e ra , C A ......................................................................................................................................................

F re s n o , C A .......................................................................................................................................................

375,904

190,182

163,783

444,670

307,992

466,304

264,767

978,948

142 Although ICAPCD refers to requirements

adopted by Maricopa County in its comments,

Arizona's rules, A.A.C. R18-2-610 and R18-2-611,

for controlling PM-10 from agricultural sources

apply to some sources beyond the boundaries of

Maricopa County.

143 As noted in Table 3 above, SCAQMD's Rule

403 has requirements for agricultural activities that

apply to both the South Coast Air Basin and

Coachella Valley Planning Area.

144EPA approved SJVUAPCD Rule 4550 in 2006,

not in 2004. See 71 FR 7683. EPA approved a

commitment for the San Joaquin Valley CMP

Program in 2004. See 69 FR 30006.

145 See 75 FR 8008, 8011-8012.

146 See SJVUAPCD Rule 4550 section 6.3 and 6.4

and GBUAPCD Rule 502 section 6.3 and 6.4.

147 See SJVUAPCD Rule 4550 section 6.2 and

SJVUAPCD "List of Conservation Management

Practices." See also GBUAPCD Rule 502 section 6.2

and, for example, GBUAPCD Supplemental

Application Form for Alfalfa. See also

"Conservation Management Practices for Farms in

Inyo, Mono and Alpine Counties, Program

Description and Plan Application Forms,"

December 19, 2008, Great Basin Unified Air

Pollution Control District, at http://

www.gbuapcd.org/farm/

CMPprogramdescriptionan dforms.pdf.

148 General Preamble Addendum at 42010 and

42012.

149 2007 Census of Agriculture, California, State

and County Data, and 2007 Census of Agriculture,

Arizona, State and County Data, United States

Department of Agriculture, National Agricultural

Statistics Service. See http://

www.agcensus.usda.gov/Publications/2007/

Full Report/Volume 1, Chapter 2 County Levell

California/cavi .pdf and http://

www.agcensus.usda.gov/Publications/2007/

Full Report/Volume 1, Chapter 2 County Level/

Arizona/azvl.pdf.

15o See footnote 141 above. The census data in

Table 4 are for all of Kern County.

151 Of all the counties included in SCAQMD,

Riverside County has the largest acreage of

harvested cropland. According to the 2007 Census

of Agriculture, Orange County has 7,846 acres of

harvested cropland, Los Angeles County has 25,829

acres of harvested cropland, San Bernardino County

has 27,516 acres of harvested cropland, and

Riverside County has 163,783 acres of harvested

cropland. 2007 Census of Agriculture, California,

State and County Data, United States Department of

Agriculture, National Agricultural Statistics

Service. See http://www.agcensus.usda.govl

Publications12007Full Report/

Volume 1, Chapter 2 County Level/California/

carl.pdf.

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375,167

189,141

158,437

426,670

297,053

458,017

260,596

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TABLE 4-Continued

Total harvested Irrigated

harvested County, State cropland cropland (acres) (acres)

K in g s , C A ......................................................................................................................................................... 4 1 9 ,9 6 4 4 1 9 ,0 8 0

Tulare, CA ........................................................................................................................................................ 560,320 540,887

K e rn , C A .......................................................................................................................................................... 7 6 4 ,9 2 9 7 5 6 ,6 4 5

Thus, the mere fact that crops are

grown using irrigation in Imperial

County does not in and of itself justify

different standards for BACM.

AL #3: ICAPCD comments that Rule

806 section F.6 specifies that the CMP

plan shall include "other relevant

information as determined by the

ICAPCD," which gives ICAPCD

authority to modify the CMP plans to

specify frequency of CMP applicability.

Therefore ICAPCD believes a

mechanism is in place in the rule for

modification of CMPs to provide such

details, and therefore this should not be

a basis for disapproval of Regulation

VIII as BACM. ICAPCD notes its

commitment to modify the CMP plans

to provide such details.

Response: As noted by ICAPCD, Rule

806 section F.6 provides a mechanism

that could be used by ICAPCD to

provide greater specificity. However

there is no required process in the rule

for sources to provide such information

to ICAPCD or for ICAPCD to review the

CMPs and/or to require revision of the

CMPs that sources have chosen to

implement. Under section F, sources are

only required to prepare a plan

containing minimal information and to

maintain a copy of the plan. Thus the

CMPs would continue to be broadly

defined unless or until ICAPCD

proactively determines that greater

specificity is needed. Absent such vital

details, it would be difficult for

regulated entities to know precisely

what is required of them to comply with

a BACM level of control, and it would

be difficult for ICAPCD, EPA, or others

to enforce these requirements. 15 2 In

152 For instance, one of the CMPs that is both in

the "land preparation and cultivation" category in

Rule 806 section E.1 and the "harvesting" category

in section E. 2 is "equipment changes/technological

improvements" which is defined in section C.15 as

"To modify the equipment such as tilling; increase

equipment size; modify land planning and land

leveling; match the equipment to row spacing;

granting to new varieties or other technological

improvements. It reduces the number of passes

during an operation, thereby reducing soil

disturbance." This definition is too broad to ensure

enforceability. Moreover, because there is no

mechanism to narrow the definition for a particular

agricultural operation, a CMP may be implemented

in a manner less stringent than a BACM level of

control. In a similarly broad fashion, Rule 806

section C.34 defines "speed limits," a CMP in both

contrast, SJVUAPCD Rule 4550 section

5 requires sources to prepare and submit

a CMP application to the District for

approval and section 6 requires the

District to evaluate and either approve

or disapprove the application in writing.

GBUAPCD Rule 502 sections 5 and 6

contain substantially identical

requirements. Such requirements

provide a mandatory process that is far

more likely to ensure that the CMPs are

implemented and enforceable at a

BACM level of control than the

provision in ICAPCD Rule 806.

Finally, even if ICAPCD were to

routinely exercise its discretionary

authority in Rule 806 to specify the

frequency of CMP applicability, the

deficiency noted in our proposed action

related to lack of CMP specificity

extends beyond the issue of

frequency. 153

AL #4: ICAPCD claims that BACM

should not be required for harvest

activities because the emissions from

these activities (0.01 tpd) are negligible.

ICAPCD argues that efforts to increase

regulation of emissions from harvesting

would waste resources. In addition,

ICAPCD claims that the CMPs in Rule

806 related to harvesting are similar to

those in SJVUAPCD Rule 4550.

Response: ICAPCD has identified

tilling emissions as a significant

source. 1 54 As stated in our proposal for

this action, measures in Rule 806 for

harvesting must also meet BACM

because the activities occur at the same

facilities and are integrally related to

tilling emissions. 15 5 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

the "unpaved roads" category in section E.3 and the

"unpaved traffic areas" category in section E.4, as

"enforcement of speeds that reduce visible dust

emissions. The dust emissions from unpaved roads

are a function of speed, meaning reducing speed

reduces dust." However, an appropriate speed limit

or range of speed limits is not specified or

otherwise insured.

153 See 75 FR 8008, 8011-8012.

154 Proposal TSD, pp. 5-6.

155 Proposal TSD, p. 10, footnote 25.

equipment even if emissions from any

one of these taken individually might be

much smaller than the major source

threshold requiring RACT. 15 6

We agree that individual CMPs for

emissions from harvesting activities in

Rule 806 are generally similar to CMPs

for such emissions in the San Joaquin

Valley. However, both SJVUAPCD and

GBUAPCD require one more CMP for

on-field agricultural sources than does

Rule 806.157 This additional CMP may

reduce emissions from harvesting

activities. ICAPCD must establish that

requiring fewer controls for on-field

agricultural activities is consistent with

BACM requirements. Thus far ICAPCD

has not provided a convincing

justification.

AL #5: ICAPCD disagrees with our

identification of the requirements of

Rule 806 for tilling as a deficiency in the

BACM analysis. In support of its

position, ICAPCD asserts that San

Joaquin Valley sources may select two

CMPs that reduce emissions from tilling

from the list of measures, but they are

not required to do so. ICAPCD also

claims that because per-acre emissions

from land preparation are about four

times as high in the San Joaquin Valley

as they are in Imperial County, the costeffectiveness of emission reductions

from tilling activities through the

implementation of any CMP should be

four times as high in Imperial County as

in the San Joaquin Valley. For these two

reasons, ICAPCD believes that Rule 806

requirements for tilling are as stringent

as analogous SJVUAPCD requirements.

In contrast, Comite comments that

Arizona Rules 18-2-610 and 611

require at least two CMPs from each

156 SJVUAPCD Rule 4451, Valves, Pressure Relief

Valves, Flanges, Threaded Connections and Process

Drains at Petroleum Refineries and Chemical Plants,

amended April 20, 2005.

157 See SJVUAPCD Rule 4550 section 6.2 and

SJVUAPCD "List of Conservation Management

Practices." See also GBUAPCD Rule 502 section 6.2

and, for example, GBUAPCD Supplemental

Application Form for Alfalfa. See also

"Conservation Management Practices for Farms in

Inyo, Mono and Alpine Counties, Program

Description and Plan Application Forms,"

December 19, 2008, Great Basin Unified Air

Pollution Control District, at http://

www.gbuapcd.org/farm/

CMPprogramdescriptionandforms.pdf.

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category in the rule whereas Rule 806

requires only one, and that SJVUAPCD

requires up to three CMPs.

Response: Although ICAPCD focuses

here on emissions from tillage, the

deficiency in our proposed rule is

related to requirements in Rule 806 for

sources to implement one fewer CMP

overall for on-field agricultural sources

than is required by SJVUAPCD Rule

4550 and GBUAPCD Rule 502. Thus the

fact that sources subject to SJVUAPCD

Rule 4550 are not required to select two

CMPs for reducing emissions from

tillage is irrelevant. ICAPCD needs to

assess whether additional CMPs for onfield agricultural sources are BACM for

Imperial County.

ICAPCD has not established that the

agricultural activities in Imperial

County are significantly different from

those in other areas. Accordingly, EPA

believes that ICAPCD should have

BACM level controls for both tillage and

harvest emissions as do other areas with

programs for emissions from

agricultural activities, and should

consider SJVUAPCD and controls from

other areas with analogous rules when

assessing whether a requirement for

additional CMPs would be economically

and technologically feasible to control

emissions from these activities. ICAPCD

claims that implementing tillage CMPs

may be more cost-effective in the San

Joaquin Valley, but does not address

whether it would be economically

feasible to require additional CMPs in

Imperial County.

We agree with Comite that sources

subject to Arizona Rules 18-2-610 and

611 are required to implement two

practices each from the "tillage and

harvest" and "cropland" categories.

ICAPCD needs to consider whether

requiring four practices for on-field

agricultural sources constitute BACM

for Imperial County.

AL #6: Comite claims that Maricopa's

inspection regime for agricultural

sources is more rigorous than ICAPCD's.

Response: Comite provides no

supporting information on either the

Maricopa County or ICAPCD inspection

program on which to base a response

and we are not otherwise aware of

information that supports this comment.

AL #7: The Farm Bureau agrees that

SJVUAPCD requires an additional CMP

from the "cropland-other" category but

notes that the same requirement is

found in ICAPCD's "land preparation

and cultivation" and "harvest activities"

categories. As a result, the Farm Bureau

believes that including an additional

category would be redundant and

onerous for participants.

Response: The deficiency identified

in our proposed action is related to the

requirement in Rule 806 for Imperial

County sources to implement one fewer

practice for on-field agricultural sources

overall without a sufficient

justification. 15 8 ICAPCD does not

necessarily need to add a category to

Rule 806 in order to address this

deficiency. For example, depending on

what is most appropriate for conditions

in Imperial County, ICAPCD may be

able to require that more than one CMP

be implemented from the categories that

currently exist in Rule 806. Moreover, it

would not be redundant to require

Imperial County sources to implement

an additional CMP for on-field

agricultural sources. Rule 806 has two

categories for on-field agricultural

sources, "land preparation and

cultivation" and "harvesting," and

requires sources to implement one

practice from each category. As noted in

Table 3 above, SJVUAPCD Rule 4550

and GBUAPCD Rule 502 have three

categories for on-field agricultural

sources, and require that sources

implement one practice from each of

these categories. Moreover, as noted in

our response to comment AL #5 above,

sources subject to Arizona Rules 18-2-

610 and 611 are required to implement

four practices for on-field agricultural

sources. As part of a BACM analysis,

ICAPCD should consider the economic

and technological feasibility of requiring

additional CMPs for on-field

agricultural sources, including

consideration of the requirements in

rules adopted by SJVUAPCD, GBUAPCD

and Arizona.

K. Agricultural Land Windblown Dust

Controls (ALWD)

See Introduction in section 11.1 above.

ALWD #1: COLAB comments that the

deficiencies identified by EPA related to

windblown dust are particularly

troublesome because they are so

surprising. COLAB believes that Rule

806 exceeds CAA needs because

windblown dust from agriculture is

insignificant. Comite, on the other hand,

notes SCAQMD's requirements for

reducing windblown dust from active

and inactive agricultural fields as BACM

measures that ICAPCD should consider

along with recommendations in U.S.

Department of Agriculture's (USDA)

National Agronomy Manual for

reducing such dust.

Response: EPA has determined that

windblown dust from agriculture is a

significant PMo source category in

Imperial County for which ICAPCD

must demonstrate, but has not yet

demonstrated, implementation of BACM

15 75 FR 8008, 8012.

level controls.159 ICAPCD should

include in its BACM analysis

consideration of whether existing

SCAQMD controls, among others, and

USDA recommendations for controlling

wind erosion, are economically and

technologically feasible measures to

reduce windblown dust from active and

fallow agricultural fields. Also see

response to comment General #3 above.

ALWD #2: ICAPCD believes that EPA

should have concurred with exceptional

event requests associated with high

winds as discussed in the exceptional

event comments above. As a result,

ICAPCD believes that windblown dust

from agricultural lands is not a

significant source category in SIP

development, and therefore not subject

to BACM.

Response: In our proposed action on

Regulation VIII, we explained how we

determined that windblown dust from

agricultural lands is a significant source

category subject to BACM.160 We have

not received information in the

comments or elsewhere that affects this

conclusion or the related 2009 EE

decision. See also responses to

exceptional event comments above and

comment OHV #1.

ALWD #3: ICAPCD disagrees that Rule

806 does not apply to fallow agricultural

fields. ICAPCD states that there are no

exemptions in Rule 806 for fallow fields

and fallowing is an optional CMP to

control emissions from "land

preparation and cultivation" under Rule

806 section E.1.

Response: Fallowing land is defined

in Rule 806 section C.16 as "Temporary

or permanent removal from production.

Eliminates entire operation/passes or

reduces activities." We note that the

fallowing CMP is an option under both

the "land preparation and cultivation"

category in section E.1 and the

"harvesting" category in section E.2.

While the fallowing CMP in Rule 806

section E.1 may reduce emissions from

"land preparation and cultivation" and

from "harvesting," it does not address

any windblown dust emissions that may

occur once a field is removed from

production. EPA believes that the

evaluation of BACM level controls for

windblown dust from fallow fields

should include consideration of USDAapproved conservation systems and

activities.' 6'

ALWD #4: ICAPCD comments that

ICAPCD farms are all irrigated and

historically well watered, which leads

to stable clods and/or aggregates that

lower susceptibility to wind erosion

159 Proposal TSD, pp. 10-11.

160Id., pp. 5-7.

1611d., pp. 10-11 and 17.

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consistent with USDA's National

Agronomy Manual. ICAPCD estimates

that long-term irrigation reduces PM 1o

emissions by 25-45% from the

predominant cultivated soil types in

Imperial County, so local fallow and

active agricultural land is controlled for

windblown emissions relative to land

not previously used for irrigated

agriculture. In contrast, ICAPCD

believes that SCAQMD's farm acreage is

overwhelmingly devoted to dryland

grain farming, and EPA has not shown

that SCAQMD controls are appropriate

for ICAPCD's irrigated fields.

Response: Based on data in Table 4,

EPA believes that the majority of

ICAPCD harvested acreage is irrigated.

However, EPA disagrees that farm

acreage subject to SCAQMD controls is

overwhelmingly devoted to dryland

farming. See total harvested cropland

acres and irrigated harvested cropland

acres for Riverside County in Table 4.

While historic irrigation may provide

for some level of control, windblown

dust from agriculture is a significant

source, and ICAPCD is required to

implement BACM level controls for

windblown emissions from active and

fallow agricultural fields. ICAPCD has

not provided a convincing justification

for why controls in the Coachella Valley

Planning Area are not applicable to

Imperial sources. ICAPCD's evaluation

for BACM level controls for windblown

dust from agricultural sources should

include requirements in SCAQMD Rule

403 and the Coachella Valley

Agricultural Handbook.

ALWD #5: ICAPCD notes that winds

above 25 mph are extremely rare in the

agricultural portion of Imperial Valley,

and farmers usually avoid tilling on

windy days to conserve soil. As a result,

ICAPCD does not believe that

SCAQMD's restriction for soil

preparation and maintenance during

days with winds above 25 mph would

impact windblown dust emissions from

agricultural fields in Imperial County. In

contrast, Comite points to SCAQMD's

requirements as potential BACM that

ICAPCD has not properly considered.

Response: ICAPCD must analyze and

implement BACM for agricultural

windblown dust emissions.' 62 Such

analysis may consider whether a

restriction on tilling activities on days

with winds above 25 mph is appropriate

in Imperial County pursuant to our

guidance.163 However, ICAPCD has not

provided such analysis in the

Regulation VIII submittal, its comments

or elsewhere. To the extent that farmers

avoid tilling on windy days to conserve

162 Proposal TSD, pp. 5-7.

163 General Preamble Addendum at 42013.

soil anyway, this restriction would not

seem to be onerous.

ALWD #6: ICAPCD comments that

SCAQMD's only additional requirement

for active fields besides the restriction

on tilling on days with winds above 25

mph is to implement one more CMP

from a list that includes minimum

tillage. ICAPCD believes this CMP is not

directly effective at reducing

windblown emissions, and hence

ICAPCD believes that by EPA's own

reasoning, this requirement does not

require windblown control on active

fields in the South Coast Basin.

Response: ICAPCD has not explained

why minimum tillage would not

directly reduce windblown dust from

active fields. EPA expects that

minimum tillage would reduce

windblown emissions by maintaining

more plant residue on the field than

conventional tillage. Establishing and

maintaining land cover is one of the five

principles noted in the National

Agronomy Manual for wind erosion

control. 164

ALWD #7: Comite believes that more

specificity and information must be

provided concerning lID's Fallowing

Program to ensure that emission

reductions from it are quantifiable,

verifiable and enforceable.

Response: ICAPCD must analyze and

implement BACM for agricultural

windblown dust emissions.16 5 If, as a

result of this analysis, ICAPCD

concludes that lID's Fallowing Program

is needed to implement BACM, then we

agree that ICAPCD needs to provide

more information about lID's program

and ensure that controls that are

provided through the program are

enforceable.

ALWD #8: Regarding EPA concerns

with agricultural windblown dust

controls, ICAPCD and the Farm Bureau

note that Rule 806 was modeled after

EPA-approved SJVUAPCD Rule 4550 at

EPA's recommendation.

Response: EPA's guidance provides

that BACM is determined on a case-bycase basis and can consider the specific

conditions of the nonattainment area.' 66

When we approved SJVUAPCD Rule

4550, we did not believe that

SJVUAPCD had a regular and repeated

windblown dust problem. 167 However,

ICAPCD asserts in its 2009 PM10 Plan

that the "overwhelming majority of

airborne PM in Imperial County is

primary PM. The major source of

164 See p. 502-17 of the USDA NRCS National

Agronomy Manual, October 2002.

165 Proposal TSD, pp. 5-7.

166 See General Preamble Addendum at 42010

and 42012.

167 See, e.g., 73 FR 14687, 14693 (March 19,

2008).

primary PM is fugitive windblown dust * * * 168 Moreover, ICAPCD's 2009

PMo Plan discusses how the flat terrain

of Imperial Valley and strong

temperature differentials produce

moderate winds and how Imperial

County occasionally experiences high

winds with speeds greater than 30 mph

in April and May. In addition, the 2009

PM10 Plan attributes monitored

exceedances in September and June to

high winds.169 As a result, EPA believes

that ICAPCD must consider windblown

dust controls for agricultural sources.

Also, see responses to comments

General #3 and EE #5.

ALWD #9: The Farm Bureau notes

that both Rule 806 and the "Agricultural

Air Quality Conservation Management

Practices for Imperial Valley" were

developed consistent with rules adopted

in other areas and EPA

recommendations. As a result, the Farm

Bureau believes that this ensured Rule

806 was adequate.

Response: See response to comment

General #3.

L. Other Controls (OC)

OC #1: Comite believes Regulation

VIII should be further strengthened by

removing director's discretion in Rule

802 section D.1, and removing the

exemption in Rule 802 section D.4.

ICAPCD objects to EPA's concerns

regarding Rule 802 section D.1 because:

(1) The APCO's discretion is limited to

a determination of whether any of the

controls in sections F.A through F.3 can

be implemented to satisfy the 20%

opacity and stabilized surface

requirements; (2) where a SIP-approved

rule provides APCO discretion, the

APCO can exercise the discretion

without further SIP-approval; and (3)

EPA has final enforcement authority for

SIP-approved rules.

Response: EPA believes that the

director's discretion provisions in Rule

802 are generally not acceptable under

the CAA. Regarding ICAPCD's first

argument, Rule 802 section D.1 provides

the APCO discretion to waive

completely the opacity and stabilized

surface requirements without limiting

discretion either by a procedure that the

APCO must use (e.g., test method X) or

by boundaries to the discretion (e.g., up

to 30% opacity instead of 20% opacity).

Thus, the discretion is not "limited."

Regarding ICAPCD's second

argument, we note initially that EPA has

a long history of rejecting such broad

APCO discretion in SIP rules.170

168 2009 PM1 0 SIP, p. 1-1.

169 2009 PM1 0 SIP, pp. 1-3 and 2-4.

170 See, e.g., "Guidance Document for Correcting

Common VOC and Other Rule Deficiencies," U.S.

Continued

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Moreover, we limit such discretion

precisely because the APCO can

exercise it without further SIP approval

where a SIP-approved rule provides

APCO discretion.

Regarding ICAPCD's third argument,

while we can enforce SIP-approved

rules, as stated, director's discretion

provisions undermine their

enforceability because enforcement of

the rules are constrained by their terms.

In this case, EPA or others could be

restricted in enforcing against activity

exempted by the APCO if this provision

were SIP-approved.

While we share Comite's concerns

with Rule 802 section D, our limited

disapproval with respect to Rule 802

section D will not trigger sanctions or a

FIP obligation because Rule 802 does

not address a source category identified

as significant and thus requiring BACM

at this time. Therefore our limited

disapproval will not trigger sanctions

under CAA section 179 or a FIP

obligation under section 110(c) with

respect to bulk materials regulated by

Rule 802. However, should regulation of

bulk materials be subject to the BACM

requirement in the future or to meet

other SIP planning requirements under

CAA title I, part D such as reasonable

further progress or attainment, the

APCO discretion in Rule 802 section D.1

or the exemptions in Rule 802 section

D.4 could result in such consequences

and/or affect the emission reduction

credit for the rule.

M. Statutory and Executive Order

Reviews (SEO)

SEO #1: OWD believes that EPA

should address Executive Order 12898,

which requires Federal agencies to

identify and address disproportionately

adverse health or environmental

impacts on minority and low-income

populations. Specifically, OWD believes

that EPA's action may impact Imperial

County's Hispanic and low-income

population by reducing tourist income

from OHV users. In contrast, Comite

applauds the commitment of the

Regional Administrator of EPA Region 9

to environmental justice principles, and

notes that relatively large portions of the

population in this area are not only

Hispanic and poor, but are also suffering

from poor health and this is exacerbated

by air pollution problems in this area.

Response: EPA agrees it is important

to consider environmental justice in our

actions and we briefly addressed

environmental justice principles in our

EPA Region IX, August 21, 2001 (the Little

Bluebook); and "Issues Relating to VOC Regulation

Cutpoints, Deficiencies, and Deviations," U.S. EPA,

OAQPS, May 25, 1998 (The Bluebook).

proposal TSD. 1 7 1 Executive Order

12898, "Federal Actions to Address

Environmental Justice in Minority

Populations and Low-Income

Populations" (February 16, 1994)

establishes Federal executive policy on

environmental justice. Its main

provision directs Federal agencies, to

the greatest extent practicable and

permitted by law, to make

environmental justice part of their

mission by identifying and addressing,

as appropriate, disproportionately high

and adverse human health or

environmental effects of their programs,

policies and activities on minority

populations and low-income

populations in the United States. The

Executive Order has informed the

development and implementation of

EPA's environmental justice program

and policies. Consistent with the

Executive Order and the associated

Presidential Memorandum, the

Agency's environmental justice policies

promote environmental protection by

focusing attention and Agency efforts on

addressing the types of environmental

harms and risks that are prevalent

among minority, low-income and Tribal

populations.

This action will not have

disproportionately high and adverse

human health or environmental effects

on minority, low-income or Tribal

populations because it increases the

level of environmental protection for all

affected populations without having any

disproportionately high and adverse

human health or environmental effects

on any population, including any

minority or low-income population.

Specially, EPA's limited approval and

limited disapproval of Regulation VIII

would have the affect of strengthening

environmental requirements throughout

ICAPCD, and would not relax

environmental requirements in any area.

Thus it promotes environmental justice

by increasing the level of human health

and environmental protection for an

area where, as the commenters note,

relatively large portions of the

population are low income and/or

minority.

SEO #2: OWD notes that EPA's action

may be subject to NEPA evaluation.

Response: EPA actions under the CAA

are exempt from NEPA. 1 72

SEO #3: OWD believes that EPA

should address increased management

costs for Imperial County's OHV

recreation areas and the effects on OHV

areas outside Imperial County. As a

result, OWD does not believe that EPA

has a basis to claim (regarding the

171 Proposal TSD, p. 3.

172 See 40 CFR 6.101(b).

Unfunded Mandates Reform Act), that

no additional costs result from this

action.

Response: As explained in our

proposal, our action would approve and

disapprove pre-existing requirements

under State or local law, and impose no

new requirements. Accordingly, no

additional costs to State, local, or tribal

governments, or to the private sector,

result from this action. 1 73

III. EPA Action

No comments were submitted that

change our assessment of Regulation

VIII 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 rules into

the California 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 in Imperial

County 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 ICAPCD,

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 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

173 75 FR 8008, 8012-8013.

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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 limited approvals

and limited disapprovals under section

110 and subchapter I, part D of the

Clean Air Act do not create any new

requirements but simply approve and

disapprove requirements that the State

is already imposing. Therefore, because

this limited approval and limited

disapproval action 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 and limited disapproval 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 and

disapproves 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 and disapproves State

rules 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

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 State rules 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.

L 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. Executive Order 12898: Federal

Actions To Address Environmental

Justice in Minority Populations and

Low-Income Populations

Executive Order 12898, "Federal

Actions to Address Environmental

Justice in Minority Populations and

Low-Income Populations" (February 16,

1994) establishes Federal executive

policy on environmental justice. Its

main provision directs Federal agencies,

to the greatest extent practicable and

permitted by law, to make

environmental justice part of their

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mission by identifying and addressing,

as appropriate, disproportionately high

and adverse human health or

environmental effects of their programs,

policies and activities on minority

populations and low-income

populations in the United States. The

Executive Order has informed the

development and implementation of

EPA's environmental justice program

and policies. Consistent with the

Executive Order and the associated

Presidential Memorandum, the

Agency's environmental justice policies

promote environmental protection by

focusing attention and Agency efforts on

addressing the types of environmental

harms and risks that are prevalent

among minority, low-income and Tribal

populations.

This action will not have

disproportionately high and adverse

human health or environmental effects

on minority, low-income or Tribal

populations because it increases the

level of environmental protection for all

affected populations without having any

disproportionately high and adverse

human health or environmental effects

on any population, including any

minority or low-income population.

Specially, EPA's simultaneous limited

approval and limited disapproval of

Regulation VIII would have the effect of

strengthening environmental

requirements throughout ICAPCD, and

would not relax environmental

requirements in any area.

K. 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. section 804(2). This

rule will be effective on August 9, 2010.

L. 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 September 7,

2010. 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

30 7(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 requirement.

Dated: June 15, 2010.

Jared Blumenfeld,

Regional Administrator, Region IX.

* Part 52, chapter I, title 40 of the Code

of Federal Regulations is amended as

follows:

PART 52-[AMENDED]

m 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)(345)(i)(E) to read

as follows:

§ 52.220 Identification of plan.

(c) * * *

(345) * * *

(i) * * *

(E) Imperial County Air Pollution

Control District.

(1) Rule 800,"General Requirements

for Control of Fine Particulate Matter

(PM-10)," adopted on October 10, 1994,

revised on November 25, 1996 and

revised on November 8, 2005.

(2) Rule 801,"Construction &

Earthmoving Activities," Rule 802,

"Bulk Materials," Rule 803,"Carry-Out &

Track-Out," Rule 804,"Open Areas,"

Rule 805,"Paved & Unpaved Roads,"

Rule 806,"Conservation Management

Practices," adopted on November 8,

2005.

[FR Doe. 2010-16350 Filed 7-7-10; 8:45 am]

BILLING CODE 6560-50-P

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