[Federal Register Volume 63, Number 172 (Friday, September 4, 1998)]
[Rules and Regulations]
[Pages 47179-47182]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-23817]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 20-7-0084a FRL-6138-8]


Approval and Promulgation of Implementation Plans; California 
State Implementation Plan Revision, Bay Area Air Quality Management 
District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action on revisions to the 
California State Implementation Plan. The revisions concern rules from 
the Bay Area Air Quality Management District (BAAQMD). The rules 
control particulate matter (PM) emissions from sources of open burning 
and visible emissions. This approval action will incorporate these 
rules into the federally approved SIP. The intended effect of approving 
these rules is to regulate emissions of PM in accordance with the 
requirements of the Clean Air Act, as amended in 1990 (CAA or the Act). 
Thus, EPA is finalizing the approval of

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these revisions into the California SIP under provisions of the CAA 
regarding EPA action on SIP submittals and SIPs for national primary 
and secondary ambient air quality standards.

DATES: This rule is effective on November 3, 1998 without further 
notice, unless EPA receives relevant adverse comments by October 5, 
1998. If EPA receives such comments, then it will publish a timely 
withdrawal in the Federal Register informing the public that this rule 
did take effect.

ADDRESSES: Comments must be submitted to Andrew Steckel at the Region 
IX office listed below. Copies of the rule revisions and EPA's 
evaluation report for each rule are available for public inspection at 
EPA's Region IX office during normal business hours. Copies of the 
submitted rule revisions are available for inspection at the following 
locations:

Rulemaking Office (AIR-4), Air Division, U.S. Environmental Protection 
Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105
Environmental Protection Agency, Air Docket (6102), 401 ``M'' Street, 
SW, Washington, DC 20460
California Air Resources Board, Stationary Source Division, Rule 
Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95812
Bay Area Air Quality Management District, 939 Ellis Street, San 
Francisco, CA 94109

FOR FURTHER INFORMATION CONTACT: Karen Irwin, Rulemaking Office, AIR-4, 
Air Division, U.S. Environmental Protection Agency, Region IX, 75 
Hawthorne Street, San Francisco, CA 94105, Telephone: (415) 744-1903

SUPPLEMENTARY INFORMATION:

I. Applicability

    The rules being approved into the California SIP include: BAAQMD 
Regulation 5, Open Burning, and Regulation 6, Visible Emissions. These 
rules were submitted by the California Air Resources Board to EPA on 
March 10, 1998 and May 13, 1991, respectively.

II. Background

    On March 3, 1978, EPA promulgated a list of total suspended 
particulate (TSP) nonattainment areas under the provisions of the 1977 
Clean Air Act (1977 CAA or pre-amended Act, 43 FR 8964; 40 CFR Part 
81). On July 1, 1987 (52 FR 24672) EPA replaced the TSP standards with 
new PM standards applying only to PM up to 10 microns in diameter (PM-
10).1 On November 15, 1990, amendments to the 1977 CAA were 
enacted. Pub. L. 101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-
7671q. On the date of enactment of the 1990 CAA Amendments, PM-10 areas 
meeting the qualifications of section 107(d)(4)(B) of the Act were 
designated nonattainment by operation of law and classified as moderate 
pursuant to section 188(a). The San Francisco Bay Area Air Basin was 
not among the areas designated nonattainment for TSP or PM-10.
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    \1\ On July 18, 1997 EPA promulgated revised and new standards 
for PM-10 and PM-2.5 (62 FR 38651). EPA has not yet established 
specific plan and control requirements for the revised and new 
standards.
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    As part of updating the California SIP, the State of California 
submitted many PM-10 rules for incorporation into the California SIP on 
March 10, 1998 and May 13, 1991, including the rules being acted on in 
this document. This document addresses EPA's direct-final action for 
BAAQMD Regulation 5, Open Burning, and Regulation 6, Visible Emissions. 
BAAQMD adopted Regulation 5 on November 11, 1994 and Regulation 6 on 
December 19, 1990. These submitted rules were found to be complete on 
May 21, 1998 and July 10, 1991, respectively, pursuant to EPA's 
completeness criteria that are set forth in 40 CFR part 51, Appendix V 
2 and are being finalized for approval into the SIP.
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    \2\ EPA adopted the completeness criteria on February 16, 1990 
(55 FR 5830) and, pursuant to section 110(k)(1)(A) of the CAA, 
revised the criteria on August 26, 1991 (56 FR 42216).
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    Regulation 5 controls emissions from open burning and Regulation 6 
is a generally applicable rule that controls visible emissions from a 
variety of sources. PM emissions can harm human health and the 
environment. This rule was originally adopted as part of BAAQMD's 
effort to maintain the National Ambient Air Quality Standard (NAAQS) 
for PM-10. The following is EPA's evaluation and final action for these 
rules.

III. EPA Evaluation and Action

    In determining the approvability of a PM-10 rule, EPA must evaluate 
the rule for consistency with the requirements of the CAA and EPA 
regulations, as found in section 110 and 40 CFR part 51 (Requirements 
for Preparation, Adoption, and Submittal of Implementation Plans). EPA 
must also ensure that rules are enforceable and strengthen or maintain 
the SIP's control strategy.
    On September 2, 1981, EPA approved into the SIP a version of 
Regulation 5, Open Burning and a version of Regulation 6, Visible 
Emissions, that had been adopted by BAAQMD on September 5, 1979. 
BAAQMD's submitted Regulation 5, Open Burning, includes the following 
significant changes from the current SIP:
     Modifies the definition of ``permissive burn day'' to 
exclude days when open burning is estimated to adversely affect ambient 
air quality or downwind population. This language replaces the SIP-
approved rule's more vague language that a permissive burn is declared 
when air pollution caused by open burning may be minimized.
     Modifies the definition of hazardous material to include 
natural vegetation or native growth cleared to maintain a firebreak 
around any building to reduce risk of wildfire.
     Adds new requirements for agricultural fires set for the 
purpose of disposing grain stubble where both grain and vegetable crops 
are harvested during the same calendar year.
     Adds acreage burning allotment limitations on a daily 
basis for stubble fires and prohibits fires prior to 10:00 AM. Limits 
fire ignition techniques (to relatively clean techniques) unless field 
conditions do not lend themselves to these techniques. Adds a crackle 
moisture test requirement following rain. Requires a prior acreage 
burning allocation from the APCO before a stubble burn occurs. Adds a 
``crackle'' test procedure for appraisal of field crop fuel moisture of 
stubble or straw.
     Allows fires for disposal of hazardous materials in 
compliance with Section 4291 of the Public Resources Code provided all 
of a series of additional conditions are satisfied.
     Limits the time of day wildlife management fires can be 
set and establishes acreage limitations for burning.
     Adds provisions to limit the amount of waste propellants, 
explosives and pyrotechnics that can be burned per facility, requires 
documentation of burns and requires installation of permitted on-site 
and off-site waste treatment systems by January 1, 1997. The submitted 
rule prohibits burning of waste propellants after January 1997.
     Adds a provision for burning to dispose of contraband 
requiring prior notification to the BAAQMD.
     Adds provisions for wildland vegetation management 
burning, filmmaking burning and civic event burning. The submitted rule 
requires prior approval of burn plans by the BAAQMD for these types of 
fires.
     Eliminates a reporting requirement to the District 
following a burn for written records indicating the location

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of the fire, type of material burned and quantity burned.
     Adds a provision specifying prior notification 
requirements for the types of burns where notification is required (per 
the SIP-approved rule).
    BAAQMD's submitted Regulation 6, Visible Emissions, includes the 
following significant changes from the current SIP:
     Adds exemptions for open outdoor fires (subject to BAAQMD 
Regulation 5) and temporary sandblasting operations (subject to BAAQMD 
Regulation 12, Rule 4).
     Adds a provision for diesel pile-driving hammers to 
require that a Ringlemann 1 (20% opacity) standard cannot be exceeded 
for more than four minutes during the driving of a single pile unless 
the operator uses kerosene, smoke suppressing fuel additives and 
synthetic lubricating oil. If these cleaner products are used, a 
Ringlemann 2 (40% opacity) limit applies which cannot be exceeded for 
more than four minutes during the driving of a single pile. Also, 
records must be maintained demonstrating use of the cleaner products. 
In reference to SIP-approved Regulation 6, diesel pile-driving hammers 
are included under a Ringlemann 2 standard which cannot be exceeded for 
more than three minutes an hour.
    EPA has evaluated the submitted rules and has determined that they 
are consistent with the CAA, EPA regulations, and EPA policy. 
Therefore, BAAQMD Regulation 5, Open Burning, and Regulation 6, Visible 
Emissions, are being approved under section 110(k)(3) of the CAA as 
meeting the requirements of section 110(a).
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future implementation 
plan. Each request for revision to the state implementation plan shall 
be considered separately in light of specific technical, economic, and 
environmental factors and in relation to relevant statutory and 
regulatory requirements.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. However, in the proposed rules section of this 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve the SIP revision should 
relevant adverse comments be filed. This rule will be effective 
November 3, 1998 without further notice unless the Agency receives 
relevant adverse comments by October 5, 1998.
    If the EPA received such comments, then EPA will publish a timely 
withdrawal of the direct final rule and inform the public that the rule 
will not take effect. All public comments received will then be 
addressed in a subsequent final rule based on proposed rule. The EPA 
will not institute a second comment period on this rule. Any parties 
interested in commenting on this rule should do so at this time. If no 
such comments are received, the public is advised that this rule will 
be effective on November 3, 1998 and no further action will be taken on 
the proposed rule.

IV. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from E.O. 12866 review.
    The final rule is not subject to E.O. 13045, entitled ``Protection 
of Children from Environmental Health Risks and Safety Risks,'' because 
it is not an ``economically significant'' action under E.O. 12866.

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    SIP approvals under section 110 and subchapter I, part D of the 
Clean Air Act do not create any new requirements but simply approve 
requirements that the State is already imposing. Therefore, because the 
Federal SIP approval does not impose any new requirements, the 
Administrator certifies that it does not have a significant impact on 
any small entities affected. Moreover, due to the nature of the 
Federal-State relationship under the CAA, preparation of a 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).

C. 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 
private sector, of $100 million or more. Under Section 205, EPA must 
select the most cost-effective and least burdensome alternative that 
achieves the objectives of the rule and is consistent with statutory 
requirements. Section 203 requires EPA to establish a plan for 
informing and advising any small governments that may be significantly 
or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new 
Federal requirements. Accordingly, no additional costs to State, local, 
or tribal governments, or to the private sector, result from this 
action.

D. Submission to Congress and the General Accounting Office

    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. This rule is not a 
``major'' rule as defined by 5 U.S.C. 804(2).

E. 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 November 3, 1998. 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

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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, Reporting and recordkeeping 
requirements, Particulate matter.

    Note: Incorporation by reference of the State Implementation 
Plan for the State of California was approved by the Director of the 
Federal Register on July 1, 1982.

    Dated: July 23, 1998.
Clyde Morris,
Acting 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 paragraphs (c)(184)(i)(C)(2) 
and (254)(i)(F) to read as follows:


Sec. 52.220  Identification of plan.

* * * * *
    (c) * * *
    (184) * * *
    (i) * * *
    (C) * * *
    (2) Regulation 6, adopted on December 19, 1990.
* * * * *
    (254) * * *
    (i) * * *
    (F) Bay Area Air Quality Management District.
    (1) Regulation 5, adopted on November 2, 1994.

[FR Doc. 98-23817 Filed 9-3-98; 8:45 am]
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