8830 Federal Register / Vol. 68, No. 38 / Wednesday, February 26, 2003 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[CA255–0385; FRL–7448–1] 

Revisions to the California State 

Implementation Plan, San Joaquin 

Valley Unified Air Pollution Control 

District

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is finalizing both a 

conditional approval and a limited 

approval and limited disapproval of 

revisions to the San Joaquin Valley 

Unified Air Pollution Control District’s 

(SJVUAPCD) portion of the California 

State Implementation Plan (SIP). This 

action was proposed in the Federal 

Register on April 1, 2002, and concerns 

fugitive dust and particulate matter less 

than 10 microns in diameter (PM–10). 

The conditional approval is with respect 

to enforceability and reasonably 

available control measures (RACM), and 

the limited approval and limited 

disapproval is with respect to best 

available control measures (BACM). 

Under authority of the Clean Air Act as 

amended in 1990 (CAA or the Act), this 

action simultaneously approves local 

rules that regulate these emissions and 

directs California to correct rule 

deficiencies.

EFFECTIVE DATE: This rule is effective on 

March 28, 2003.

ADDRESSES: You can inspect copies of 

the administrative record for this action 

at EPA’s Region IX office during normal 

business hours. You can inspect copies 

of the submitted SIP revisions at the 

following locations:

Environmental Protection Agency, 

Region IX, 75 Hawthorne Street, San 

Francisco, CA 94105–3901. 

Air and Radiation Docket and 

Information Center, U.S. 

Environmental Protection Agency, 

Room B–102, 1301 Constitution 

Avenue, NW., (Mail Code 6102T), 

Washington, DC 20460. 

California Air Resources Board, 

Stationary Source Division, Rule 

Evaluation Section, 1001 ‘‘I’’ Street, 

Sacramento, CA 95814. 

San Joaquin Valley Unified Air 

Pollution Control District, 1990 East 

Gettysburg, Fresno, CA 93726.

A copy of the rules may also be 

available via the Internet at http://

www.arb.ca.gov/drdb/drdbltxt.htm.

Please be advised that this is not an EPA 

Web site and may not contain the same 

version of the rules that were submitted 

to EPA.

FOR FURTHER INFORMATION CONTACT:

Karen Irwin, EPA Region IX, (415) 947–

4116.

SUPPLEMENTARY INFORMATION:

Throughout this document, ‘‘we,’’ ‘‘us’’

and ‘‘our’’ refer to EPA. 

I. Proposed Action 

On April 1, 2002 (67 FR 15345), EPA 

proposed a limited approval and limited 

disapproval of the following SJVUAPCD 

rules that were adopted on November 

15, 2001 and submitted for 

incorporation into the California SIP on 

December 6, 2001.

Rule # Rule title 

8011 ......... General Requirements. 

8021 ......... Construction, Demolition, Excavation, Extraction and Other 

Earthmoving Activities. 

8031 ......... Bulk Materials. 

8041 ......... Carryout and Trackout. 

8051 ......... Open Areas. 

8061 ......... Paved and Unpaved Roads. 

8071 ......... Unpaved Vehicle/Equipment 

Traffic Areas. 

8081 ......... Agricultural Sources. 

These rules are part of SJVUAPCD’s 

Regulation VIII. We proposed a limited 

approval of these rules because we 

determined that they improve the SIP 

and are largely consistent with the 

relevant CAA requirements. We 

simultaneously proposed a limited 

disapproval because we found that the 

submittal does not adequately fulfill the 

CAA section 189(b) requirement for a 

BACM demonstration, nor include any 

upgrades or revisions to the control 

measures that are required as a result of 

the BACM demonstration. Specifically, 

the State has not demonstrated that 

thresholds of source coverage within the 

rules (e.g., minimum size of sources 

subject to rule requirements) fulfill 

BACM. Such thresholds include: (1) 

Rule 8061 and 8081 unpaved road trip 

count thresholds; (2) Rule 8071 and 

8081 unpaved vehicle/equipment traffic 

area trip count thresholds; (3) Rule 8071 

and 8081 unpaved vehicle/equipment 

traffic area size threshold; (4) Rule 8081 

unpaved road and unpaved vehicle/

equipment traffic area exclusion of 

implements of husbandry in the trip 

count; (5) Rule 8051 disturbed open 

areas threshold; (6) Rule 8041 threshold 

for when trackout control devices must 

be employed; (7) Rule 8041 trackout 

cleanup requirements as they apply to 

rural areas; (8) Rule 8031 and 8081 bulk 

materials thresholds; (9) Rule 8021 Dust 

Control Plan requirement thresholds; 

and (10) other control measures for 

paved road PM–10 emissions including 

preventing/mitigating trackout 

attributed to agricultural sources, 

stabilizing unpaved shoulders, frequent 

street sweeping and use of PM–10 

efficient street sweepers. 

We also proposed a conditional 

approval of all the submitted rules listed 

above except for Rule 8051. We 

proposed the conditional approval 

because we believe that the submittal 

resolves the prior enforceability and 

RACM deficiencies identified in the 

March 8, 2000 final action, subject to 

one condition. The condition is for 

SJVUAPCD to adequately demonstrate 

that it has applied RACM to the 

significant source categories that are 

subject to Regulation VIII. By letter 

dated March 5, 2002, SJVUAPCD 

committed to adopt and submit this 

demonstration within one year of EPA’s 

publication of this final rule. This 

demonstration includes the following: 

(1) A complete list of candidate RACM 

for the following Regulation VIII 

significant sources: unpaved roads, 

unpaved vehicle/equipment traffic 

areas, paved roads and earthmoving 

sources, including bulk materials 

storage/handling; (2) a reasoned 

justification for any candidate measures 

that the District did not adopt for these 

sources, including descriptions of 

measures for these source categories that 

the District is implementing outside the 

context of Regulation VIII; and (3) 

information that supports the 

reasonableness of the Regulation VIII 

coverage. 

Our proposed action contains more 

information on the basis for this 

rulemaking and on our evaluation of the 

submittal. 

II. Public Comments and EPA 

Responses 

EPA’s proposed action provided a 60-

day public comment period. During this 

period, we received comments from the 

following parties.

1. Brent J. Newell, Center on Race, 

Poverty & Environment, on behalf of 

the Association of Irritated Residents 

and El Comite para el Bienestar de 

Earlimart, letters dated May 30, 2002. 

2. Anne C. Harper, Earthjustice, on 

behalf of the Sierra Club, letter dated 

May 31, 2002.

The comments and EPA responses are 

summarized below. 

Comment 1: The version of Regulation 

VIII adopted by SJVUAPCD was 

inappropriately negotiated between EPA 

and the regulated industry weeks after 

the local public comment period 

expired. It does not fulfill the relevant 

public process requirements as 

significant changes were made at the 

Federal Register / Vol. 68, No. 38 / Wednesday, February 26, 2003 / Rules and Regulations 8831

last minute. These changes include 

exempting implements of husbandry 

from vehicle trip counts in Rule 8011, 

increasing the size of exempted open 

areas by 300 percent in Rule 8051, and 

rendering the 20% VE standard useless 

by allowing the U.S. Department of 

Agriculture (USDA) to approve Fugitive 

PM–10 Management Plans (FPMPs) in 

Rules 8061, 8071 and 8081. Even 

SJVUAPCD’s own staff did not have an 

opportunity to review the version 

presented to SJVUAPCD’s Governing 

Board on November 15. 

Response 1: 40 CFR part 51 Appendix 

V and 40 CFR 50.102 describe the 

public participation procedural 

requirements for adoption and submittal 

of SIP revisions. Paragraph (a)(1) of 

Section 50.102 requires that a State 

must conduct one or more public 

hearings prior to adoption and 

submission to EPA of any SIP revision 

such as Regulation VIII. Paragraphs 2(e) 

and (g) of part 51 Appendix V direct 

states to follow all relevant state 

requirements for public notice, hearing 

and adoption. California’s Health and 

Safety Code (HSC) §§ 40725–30 outlines 

the procedures to be followed by local 

air districts, such as SJVUAPCD, in 

adopting, amending, or repealing any 

rule or regulation, including SIP 

revisions. EPA believes that these State 

rules are consistent with Administrative 

Procedures Act (APA) requirements for 

public participation, 5 U.S.C.A. 553.

In regard to changes made to a SIP 

revision after the end of the public 

comment period, HSC § 40726 allows 

for such changes without further public 

notice or comment as long as those 

changes are not ‘‘so substantial as to 

significantly effect the meaning of the 

proposed rule or regulation.’’

SJVUAPCD held a public hearing on 

Regulation VIII on October 31, 2001, 

received comments on the proposed 

rules, and responded to those 

comments. Both SJVUAPCD and CARB 

have determined that the public 

participation process followed by 

SJVUAPCD in adopting and submitting 

Regulation VIII fulfilled State and 

federal public participation 

requirements. EPA routinely relies upon 

determinations by State and local 

agencies as to compliance with their 

own public participation processes. 

Additionally, the final Regulation VIII 

(including the three provisions 

specifically noted in the comment) as 

adopted and submitted was not 

‘‘substantially’’ different from the 

proposed regulation and was a logical 

outgrowth of the earlier proposed 

regulation. SJVUAPCD had received 

comments earlier in the public comment 

process that logically lead to the final 

version adopted. The District included 

in its submittal extensive comments 

received from many parties, including 

the regulated community, that related to 

the later revised Regulation VIII 

provisions. 

The commenters also appear 

concerned that the District considered 

comments provided by EPA in adopting 

the final Regulation VIII. However, state 

and local agencies are allowed and 

encouraged to consider EPA comments 

in adopting final SIP rules or revisions 

as long as all other public participation 

requirements are met. 

Comment 2: Rule revisions proposed 

to Rule 8081 on the day of the hearing 

but not adopted were not subject to the 

relevant public process requirements. 

These include a small farm exemption 

and an exemption for unpaved haul 

roads on days when no truck trips will 

occur. 

Response 2: Revisions not adopted are 

not the subject of EPA’s proposed 

action. 

Comment 3: The exemption for 

‘‘implements of husbandry’’ from 

vehicle trip counts violates CAA 

§ 189(a) RACM requirements because it 

effectively excludes an unknown but 

large number of agricultural road 

segments from Regulation VIII without 

any analysis of the number of exempted 

road segments or the efficacy of the 

measure. EPA’s proposed conditional 

approval is not supported by a factual 

basis. 

Response 3: We agree that the State 

has not submitted detailed analysis of 

the impacts of the exemption for 

implements of husbandry. This does not 

mean that the exemption necessarily 

violates CAA § 189(a). Rather, it means 

that the State needs to perform and 

submit such analysis in order to 

determine whether the exemption and 

the rules fulfill § 189(a). We concur with 

the comment’s implication that this 

analysis is important and, as a result, 

have required it as part of our final 

conditional approval. 

Comment 4: The FPMP provisions in 

Rule 8081 allow exceedence of the 

general 20% opacity standard and 

violate § 189(a) because they are not 

federally enforceable. Responsibility for 

enforcement of the FPMP requirements 

is given to the USDA instead of to EPA 

and SJVUAPCD, in conflict with CAA 

§ 110 enforceability requirements. 

Response 4: Paragraph 7.0 of Rule 

8081 states that FPMPs must be 

approved by the USDA and must be 

designed to achieve 50% control 

efficiency. We believe Rule 8081 is 

adequately enforceable because it 

establishes criteria for evaluation of 

FPMPs (i.e., 50% control). This would 

allow SJVUAPCD and EPA to invalidate 

FPMPs that are not meeting 50% 

control, regardless of USDA’s action. 

Also, as made clear by paragraph 7.4, 

the terms of the final FPMP approved by 

USDA are subject to enforcement by 

SJVUAPCD, EPA and citizens. 

Comment 5: The exemption of all onfield sources, including smaller farms 

less than 320 acres and animal feed 

handling, which effectively exempts 

concentrated animal feeding operations, 

violates § 189(a). Farming operations 

account for nearly 25% of all PM–10 

emissions in the Valley. The exemption 

does not constitute an appropriate 

interpretation of a ‘‘more likely than 

not’’ finding that the RACM requirement 

has been met.

Response 5: As discussed in our April 

1, 2002 proposed action (67 FR 15345), 

EPA only evaluated these rules with 

respect to those sources that the rules 

purport to regulate. This is documented 

in the August 31, 1999 TSD associated 

with EPA’s original proposed action (pg. 

10). For example, Rule 8060, dated 

April 25, 1996, proposed to regulate 

unpaved roads for RACM purposes, so 

we evaluated whether the rule is 

sufficient for unpaved roads, including 

agricultural unpaved roads. Since 

Regulation VIII submittals have never 

purported to cover on-field agricultural 

activity, however, we have not 

attempted to evaluate whether 

Regulation VIII fulfills RACM/BACM for 

this activity. Therefore, we disagree 

with the commenters’ statement that onfield agricultural source activity has 

been exempted from RACM through 

Regulation VIII; rather, it is just not a 

regulated activity under Regulation VIII. 

We agree with the commenters that it 

is important for the District to evaluate 

the impact and appropriate controls for 

on-field agricultural activity. The 

evaluation of whether and what controls 

are necessary for on-field agricultural 

activities to fulfill RACM/BACM should 

be performed in context of a rule that 

regulates such activity or of an overall 

PM–10 plan for the area. In 1991, CARB 

submitted an overall PM–10 plan for the 

area which purported to address RACM 

generally as well as on-field agricultural 

activity. We have not acted on this plan, 

and are not doing so now, as we are 

only acting on Regulation VIII. As a 

result of EPA’s finding that the San 

Joaquin Valley failed to attain the PM–

10 standards by the statutory deadline 

of December 31, 2001, the State must 

submit a new plan for the area to EPA 

by December 31, 2002. 67 FR 48039 

(July 23, 2002). EPA also published a 

finding of nonsubmittal of a PM–10 plan 

for the San Joaquin Valley on March 18, 

2002 (67 FR 11925), which could result 

8832 Federal Register / Vol. 68, No. 38 / Wednesday, February 26, 2003 / Rules and Regulations 

in the imposition of sanctions. We 

expect that these EPA actions will lead 

to development in the near term of a 

thorough RACM/BACM analysis and an 

overall PM–10 plan which include onfield agriculture activity. 

Comment 6: Other areas have adopted 

RACM or BACM measures that apply to 

farming operations that EPA has 

approved. For example, South Coast Air 

Quality Management District Rule 

403(h)(1)(B) applies fugitive dust 

requirements to agricultural sources 

greater than 10 acres, and Maricopa 

County Rule 310 requires RACM at 

cattle feedlots and livestock areas. 

Regulation VIII, in contrast, fully 

exempts on-field agricultural activities 

in violation of CAA § 189(a). 

Response 6: See Response 5. 

Comment 7: EPA recently issued a 

Notice of Deficiency (NOD) that found 

California’s statutory agricultural permit 

exemption inconsistent with CAA Title 

V. CAA Title I also provides no such 

exemption for agricultural sources, and 

any rulemaking which generally 

exempts agriculture from § 189(a) 

RACM requirements is inconsistent 

with the CAA under the same rationale 

articulated in the Notice of Deficiency. 

Response 7: The commenter is correct 

that Title I and Title V do not exempt 

major agricultural sources of air 

pollution from CAA permitting 

requirements. CAA § 189(a), however, 

relies on a separate analysis to 

determine whether agricultural sources 

should be regulated for RACM purposes. 

Under § 189(a), a permitting agency 

need not regulate or can limit regulation 

of certain activities or source categories 

from RACM requirements if one of the 

following two criteria are met: (a) 

emissions from the activity or source 

category are not significant; or (b) the 

level of imposed control fulfills RACM 

in light of cost-effectiveness, technical 

feasibility and attainment needs. 

However, as stated in Response 5, since 

Regulation VIII never purported to cover 

on-field agricultural activity, such an 

analysis is not necessary in the context 

of Regulation VIII. This analysis will be 

necessary in a rule that regulates such 

activity or in an overall PM–10 plan for 

the area. 

Comment 8: EPA’s finding that ‘‘it is 

more likely than not’’ that Regulation 

VIII fulfills the CAA 189(a) requirement 

is contradicted by the substantial 

agriculture-related deficiencies 

summarized in comments 3 through 7 

that exempt in total nearly half of all 

sources.

Response 8: See Response 5 regarding 

on-field agricultural sources. The 

comment also concerns the exemption 

for implements of husbandry and the 

enforceability of FPMPs regarding 

agriculturally-owned unpaved roads. 

See Response 4 regarding FPMP 

enforceability. Our ‘‘more likely than 

not’’ RACM finding for Regulation VIII 

Rule 8081 coverage of agriculturallyowned unpaved roads relies on the 

expectation that a reasonable percentage 

of these roads are subject to control at 

the 75 vehicle trips per day threshold 

during harvest season. We expect most 

of this traffic will be haul trucks 

carrying product to and from farms as 

opposed to implements of husbandry 

such as tractors. We agree with the 

commenter, however, that the actual 

impact of this exemption has not been 

thoroughly quantified, which is partly 

the basis for our action to approve this 

regulation only conditionally. 

Comment 9: EPA’s 2002 proposed 

conditional approval of Regulation VIII 

for RACM is illegal in light of EPA’s 

own finding that SJVUAPCD has not 

completely fulfilled the requirement 

described in 57 FR 13498 and 13540 

(April 16, 1992) to apply RACM to the 

significant source categories subject to 

Regulation VIII. 

Response 9: As discussed in our 2002 

proposed action, we believe that 

Regulation VIII fulfills the substantive 

RACM requirements for the activities it 

covers and it is inappropriate to 

immediately initiate sanctions 

throughout the San Joaquin Valley 

solely because SJVUAPCD failed to 

complete a detailed RACM justification. 

SJVUAPCD did provide substantial costeffectiveness data and other information 

that suggests that Regulation VIII fulfills 

RACM for the activities it covers. While 

a more complete RACM justification is 

required under the Act, we do not 

believe, in this case, that it is likely to 

lead to additional emission reductions. 

We have proposed, therefore, to 

temporarily stay the sanctions clock to 

allow a relatively short time for 

SJVUAPCD to provide the necessary 

analysis. 

Comment 10: SJVUAPCD is long 

overdue to require RACM and BACM 

pursuant to CAA § 189(a) and § 189(b), 

and has failed to adopt RACM and 

BACM as soon as practicable as required 

by the CAA. There is no basis for further 

postponing final action on RACM. 

EPA’s proposed actions allowing 

SJVUAPCD to justify, revise, and 

resubmit Regulation VIII, extends the 

mandatory RACM and BACM deadlines 

and violates the CAA. 

Response 10: We concur that RACM 

and BACM were not applied in the San 

Joaquin Valley according to Clean Air 

Act deadlines. We believe, however, 

that RACM is now applied in the area 

for the activities covered by Regulation 

VIII. We do not view our conditional 

approval of these rules as RACM as 

postponing RACM implementation 

given our ‘‘more likely than not’’ finding 

that the requirements now meet RACM. 

See Response 11 regarding BACM. 

Comment 11: In this proposed limited 

approval/disapproval, EPA claims that 

it had not previously started a sanction 

clock for § 189(b) deficiencies because 

SJVUAPCD explicitly adopted the April 

25, 1996 Regulation VIII rules for 

purposes of maintaining RACM, rather 

than BACM. However, the February 8, 

1997 statutory deadline for 

implementing BACM was long past 

even at the time of EPA’s first 

disapproval of Regulation VIII, proposed 

on September 23, 1999 and finalized on 

March 8, 2000. Thus, EPA’s disapproval 

at that time applied to the requirements 

of both RACM and BACM, and EPA’s 

proposed action and responses to 

comments at that time clearly showed 

that it was evaluating the regulation for 

both standards. 

EPA cannot now propose limited 

approval/limited disapproval for the SIP 

revision’s failure to demonstrate BACM 

when, two years ago, EPA took the same 

final agency action. It is an abuse of 

discretion to reinterpret the March 8, 

2000 final rulemaking in such a fashion 

so that EPA may inappropriately toll the 

sanctions clock. EPA has a mandatory 

duty to impose sanctions under § 179(a) 

unless all previously identified 

deficiencies have been corrected. It is 

clear that SJVUAPCD has not corrected 

the BACM deficiencies, which EPA 

concedes in this proposed rulemaking. 

EPA’s proposal to grant limited 

approval/disapproval is thus 

inconsistent with the plain language of 

CAA § 179(a). 

Response 11: We agree that the BACM 

implementation deadline had passed 

before EPA proposed a limited 

approval/disapproval of Regulation VIII 

in 1999. This does not determine, 

however, that our March 8, 2000 final 

action validly established a BACM 

sanctions clock. Our March 2000 action 

addressed rules that were submitted to 

fulfill RACM, not BACM. As a result 

and as discussed in our April 2002 

proposed action, we do not believe that 

a sanctions clock could be started for 

BACM deficiencies under such 

circumstances. See Response 5 (where 

we similarly conclude that we cannot 

disapprove Regulation VIII for its 

exemption of on-field agricultural 

sources because the regulation does not 

purport to cover those sources for 

RACM purposes). However, the latest 

version of Regulation VIII submitted on 

December 6, 2001, does purport to meet 

BACM requirements. Therefore, by this 

Federal Register / Vol. 68, No. 38 / Wednesday, February 26, 2003 / Rules and Regulations 8833

final rule, we are disapproving the 2001 

version of Regulation VIII for failure to 

adequately demonstrate BACM and 

have started a valid BACM sanctions 

clock for SJVUAPCD to correct the 

deficiencies. In accordance with section 

179 of the Clean Air Act, the State has 

18 months to correct the deficiencies 

identified in EPA’s action prior to the 

imposition of sanctions. 

Comment 12: EPA’s April 1, 2002 

interim final determination must be 

withdrawn because EPA cannot approve 

any individual rule without first 

approving an attainment demonstration. 

The judgement that EPA must make in 

approving a SIP revision, is ‘‘to measure 

the existing level of pollution, compare 

it with national standards, and 

determine the effect on this comparison 

of specified emission modifications.’’

Without an attainment demonstration, it 

is impossible to determine whether any 

revision is ‘‘adequate to the task.’’ Hall

v. EPA, 263 F.3d 937 (9th Cir. 2001).

Response 12: EPA regularly takes 

action on individual rules independent 

of action on overarching plans. As with 

the thousands of other rules we have 

acted on independent of attainment 

demonstrations, we believe we can 

effectively evaluate compliance with 

§ 110 and other CAA requirements and 

approve or disapprove these rules 

consistent with § 110(k). In fact, the 

Court of Appeals for the Ninth Circuit 

specifically endorsed this practice in 

Hall. The Court held that ‘‘[t]he Act 

explicitly contemplates that * * * 

attainment demonstrations may be 

submitted for EPA review at different 

times than other elements of the States’

SIP revisions (for example, revisions to 

control measures) are submitted for 

review.’’ Id. at 937. 

The Commenter reasoned that 

language it quoted from Hall requires a 

rigorous comparison by EPA of emission 

reductions resulting from a proposed 

SIP revision to overall reductions 

necessary for attainment, and such an 

analysis cannot be done outside the 

context of an attainment demonstration. 

However, other language in the Court’s 

Hall ruling softened this requirement in 

circumstances where an attainment 

demonstration is not yet in place. In the 

absence of an attainment plan, the Court 

held that EPA need only show that ‘‘the 

particular plan revision before it is 

consistent with the development of an 

overall plan capable of meeting the 

Act’s attainment requirements.’’ Id. at 

938. In accordance with Hall, we have 

determined that Regulation VIII is 

consistent with development of an 

overall plan and we intend to evaluate 

Regulation VIII in the context of a PM–

10 plan when the plan is submitted to 

us for review. 

Comment 13: For reasons given above, 

EPA must fully disapprove the 

Regulation VIII submittal, withdraw the 

interim final determination that 

SJVUAPCD has corrected the 

deficiencies, reinstate the associated 

sanctions clock, and promulgate a FIP. 

Response 13: For reasons discussed in 

the other responses, nothing in the 

comments has caused us to change our 

position as described in the proposal. 

Following the close of the comment 

period, we received two additional 

inquiries from Earthjustice. While EPA 

is not obligated to summarize or 

respond to these inquiries, we have 

done so below. 

Comment 14: Did EPA consider 

fugitive dust control measures adopted 

in other PM–10 nonattainment areas 

when evaluating SJVUAPCD’s 

Regulation VIII for RACM and/or 

BACM? If so, is the review of other rules 

part of the record for EPA’s action on 

Regulation VIII?

Response 14: EPA considered control 

measures adopted in Maricopa County, 

Clark County and other areas as 

background information during our 

evaluation of Regulation VIII. Where 

EPA’s approval of control measures for 

these other areas has been published in 

the Federal Register, they are 

incorporated by reference into the 

administrative record for EPA’s decision 

on Regulation VIII. 

Comment 15: What is the origin of the 

‘‘more likely than not’’ criteria used by 

EPA in its decision to conditionally 

approve Regulation VIII for RACM 

purposes. 

Response 15: In the preamble to the 

federal regulations implementing the 

sanctions provision of CAA Section 179, 

EPA stated that it can conditionally 

approve a SIP revision when ‘‘it believes 

it is more likely than not that the State 

is complying with the relevant 

requirements of the Act.’’ 59 FR 39832, 

39838 (August 4, 1994). EPA clarified 

that this finding can also serve as a basis 

for an interim final determination that a 

State has corrected previously identified 

deficiencies. 

III. EPA Action 

No comments were submitted that 

change our assessment of the rules as 

described in our proposed action. 

Therefore, as authorized in CAA section 

110(k)(4), EPA is finalizing a 

conditional approval of Rules 8011, 

8021, 8031, 8041, 8061, 8071 and 8081 

with respect to CAA section 172(c)(1) 

and 189(a)(1)(C) RACM requirements. 

We have concluded that the December 

6, 2001 submittal corrects the prior 

enforceability and RACM deficiencies 

identified in our March 8, 2000 final 

action, subject to one condition. That 

condition is for SJVUAPCD to provide a 

comprehensive and adequate 

demonstration that these rules fulfill 

RACM requirements for the source 

categories covered by Regulation VIII. 

SJVUAPCD has committed to provide 

this RACM demonstration within one 

year after the date of publication of this 

final action. This conditional approval 

action terminates the CAA section 

189(a) sanction implications of our 

March 8, 2000 final action. However, 

the conditional approval will be treated 

as a disapproval, with section 189(a) 

sanctions immediately reinstated, if 

SJVUAPCD fails to fulfill this 

commitment within the statutory one 

year period or upon EPA’s final 

disapproval of a submitted RACM 

demonstration. 

In addition, as authorized in sections 

110(k)(3) and 301(a) of the Act, EPA is 

finalizing a limited approval of 

submitted Rules 8011, 8021, 8031, 8041, 

8051, 8061, 8071 and 8081 with respect 

to CAA section 189(b)(1)(B) BACM 

requirements. Specifically, the state has 

failed to demonstrate that thresholds of 

source coverage fulfill BACM 

requirements. 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 rule with respect to 

BACM requirements. As a result, 

sanctions will be imposed unless EPA 

approves subsequent SIP revisions that 

correct the deficiencies within 18 

months of the effective date of this 

action. These sanctions will be imposed 

under CAA section 179 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 deficiencies within 24 

months. Note that the submitted rules 

have been adopted by SJVUAPCD, 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 

The Office of Management and Budget 

has exempted this regulatory action 

from Executive Order 12866, entitled 

‘‘Regulatory Planning and Review.’’

B. Executive Order 13045 

Executive Order 13045, entitled 

Protection of Children from 

8834 Federal Register / Vol. 68, No. 38 / Wednesday, February 26, 2003 / Rules and Regulations 

Environmental Health Risks and Safety 

Risks (62 FR 19885, April 23, 1997), 

applies to any rule that: (1) Is 

determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

the Agency must evaluate the 

environmental health or safety effects of 

the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the Agency.

This rule is not subject to Executive 

Order 13045 because it does not involve 

decisions intended to mitigate 

environmental health or safety risks. 

C. Executive Order 13132 

Executive Order 13132, entitled 

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 acts on a state rule implementing 

a federal standard, and does not alter 

the relationship or the distribution of 

power and responsibilities established 

in the Clean Air Act. Thus, the 

requirements of section 6 of the 

Executive Order do not apply to this 

rule. 

D. Executive Order 13175 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 6, 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.’’ ‘‘Policies that have tribal 

implications’’ is defined in the 

Executive Order to include regulations 

that have ‘‘substantial direct effects on 

one or more Indian tribes, on the 

relationship between the Federal 

government and the Indian tribes, or on 

the distribution of power and 

responsibilities between the Federal 

government and Indian tribes.’’

This final rule does not have tribal 

implications. 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, as 

specified in Executive Order 13175. 

Thus, Executive Order 13175 does not 

apply to this rule. 

E. Executive Order 13211 

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. 

F. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to conduct 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements unless the 

agency certifies that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

Small entities include small businesses, 

small not-for-profit enterprises, and 

small governmental jurisdictions. 

This final rule will not have a 

significant impact on a substantial 

number of small entities because SIP 

approvals under section 110 and 

subchapter I, part D of the Clean Air Act 

do not create any new requirements but 

simply act on requirements that the 

State is already imposing. Therefore, 

because the Federal SIP approval does 

not create any new requirements, I 

certify that this action will not have a 

significant economic impact on a 

substantial number of small entities. 

EPA’s disapproval of the state request 

under section 110 and subchapter I, part 

D of the Clean Air Act does not affect 

any existing requirements applicable to 

small entities. Any pre-existing federal 

requirements remain in place after this 

disapproval. Federal disapproval of the 

state submittal does not affect state 

enforceability. Moreover, EPA’s 

disapproval of the submittal does not 

impose any new Federal requirements. 

Therefore, 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).

G. Unfunded Mandates 

Under section 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 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 acts on 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. 

Federal Register / Vol. 68, No. 38 / Wednesday, February 26, 2003 / Rules and Regulations 8835

H. 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. 

EPA believes that VCS are 

inapplicable to today’s action because it 

does not require the public to perform 

activities conducive to the use of VCS. 

I. Submission to Congress and the 

Comptroller General 

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 rule is not a ‘‘major’’ rule as 

defined by 5 U.S.C. 804(2). 

J. 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 April 28, 2003. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this rule for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).)

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Particulate matter, Reporting and 

recordkeeping requirements.

Dated: January 22, 2003. 

Wayne Nastri, 

Regional Administrator, Region IX.

Part 52, chapter I, title 40 of the Code 

of Federal Regulations is amended as 

follows:

PART 52—[AMENDED] 

1. The authority citation for Part 52 

continues to read as follows:

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

Subpart F—California 

2. Section 52.220 is amended by 

adding paragraph (c)(304) to read as 

follows:

§ 52.220 Identification of plan.

* * * * *

(c) * * * 

(304) New and amended regulations 

for the following APCD were submitted 

on December 6, 2001, by the Governor’s 

designee. 

(i) Incorporation by reference. 

(A) San Joaquin Valley Unified Air 

Pollution Control District. 

(1) Rules 8011, 8021, 8031, 8041, 

8051, 8061, 8071, and 8081, adopted on 

November 15, 2001.

* * * * *

[FR Doc. 03–4383 Filed 2–25–03; 8:45 am] 

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[CA262–0369a; FRL–7451–4] 

Revisions to the California State 

Implementation Plan, Monterey Bay 

Unified Air Pollution Control District, 

San Joaquin Valley Unified Air 

Pollution Control District

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is taking direct final 

action to approve revisions to the 

Monterey Bay Unified Air Pollution 

Control District (MBUAPCD) and San 

Joaquin Valley Unified Air Pollution 

Control District (SJVUAPCD) portion of 

the California State Implementation 

Plan (SIP). These revisions concern 

volatile organic compound (VOC) 

emissions from organic liquid storage 

and VOC and nitrogen dioxide (NOX) 

emissions from flare operations at 

industrial sites such as oil refineries, 

chemical manufacturers, and oil wells. 

We are approving local rules that 

regulate these emission sources under 

the Clean Air Act as amended in 1990 

(CAA or the Act).

DATES: This rule is effective on April 28, 

2003 without further notice, unless EPA 

receives adverse comments by March 

28, 2003. If we receive such comment, 

we will publish a timely withdrawal in 

the Federal Register to notify the public 

that this rule will not take effect.

ADDRESSES: Mail comments to Andy 

Steckel, Rulemaking Office Chief (AIR–

4), U.S. Environmental Protection 

Agency, Region IX, 75 Hawthorne 

Street, San Francisco, CA 94105–3901. 

You can inspect copies of the 

submitted SIP revisions and EPA’s 

technical support documents (TSDs) at 

our Region IX office during normal 

business hours. You may also see copies 

of the submitted SIP revisions at the 

following locations:

Air and Radiation Docket and 

Information Center, U.S. 

Environmental Protection Agency, 

Room B–102, 1301 Constitution 

Avenue, NW., (Mail Code 6102T), 

Washington, DC 20460; 

California Air Resources Board, 

Stationary Source Division, Rule 

Evaluation Section, 1001 ‘‘I’’ Street, 

Sacramento, CA 95814; 

Monterey Bay Unified Air Pollution 

Control District, 24580 Silver Cloud 

Court, Monterey, CA 93940; and, 

San Joaquin Valley Unified Air 

Pollution Control District, 1990 East 

Gettysburg Street, Fresno, CA 93726.

A copy of the rule may also be 

available via the Internet at http://

www.arb.ca.gov/drdb/drdbltxt.htm.

Please be advised that this is not an EPA 

website and may not contain the same 

version of the rule that was submitted 

to EPA.

FOR FURTHER INFORMATION CONTACT:

Jerald S. Wamsley, EPA Region IX, (415) 

947–4111.

SUPPLEMENTARY INFORMATION:

Throughout this document, ‘‘we,’’ ‘‘us’’

and ‘‘our’’ refer to EPA.

Table of Contents 

I. The State’s Submittal 

A. What rules did the State submit?

B. Are there other versions of these rules? 

C. What is the purpose of the submitted 

rules? 

II. EPA’s Evaluation and Action 

A. How is EPA evaluating the rules? 

B. Do the rules meet the evaluation 

criteria? 

C. EPA recommendations to further 

improve the rules. 

D. Public comment and final action. 

III. Background Information 

Why were these rules submitted? 

IV. Administrative Requirements