[Federal Register Volume 64, Number 69 (Monday, April 12, 1999)]
[Proposed Rules]
[Pages 17589-17592]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-8949]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 013-0139b; FRL-6322-3]


Approval and Promulgation of Implementation Plans; California 
State Implementation Plan, San Joaquin Valley Unified Air Pollution 
Control District; South Coast Air Quality Management District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing a limited approval and limited disapproval of 
revisions to the California State Implementation Plan (SIP) which 
concern the control of particulate matter (PM) from open burning. The 
intended effect of proposing limited approval and limited disapproval 
of these rules is to regulate PM emissions in accordance with the 
requirements of the Clean Air Act, as amended in 1990 (CAA or the Act). 
EPA's final action on this proposed rule will incorporate these rules 
into the federally approved SIP for San Joaquin Valley Unified Air 
Pollution Control District (SJVUAPCD) and South Coast Air Quality 
Management District (SCAQMD). EPA has evaluated SJVUAPCD Rule 4103 and 
SCAQMD Rule 444 and is proposing a simultaneous limited approval and 
limited disapproval under provisions of the CAA regarding EPA action on 
SIP submittals and general rulemaking authority. These revisions, while 
strengthening the SIP or maintaining the SIP's control strategy, do not 
fully meet the CAA provisions regarding plan submissions and 
requirements for nonattainment areas. In this action, EPA also is 
proposing full approval of SCAQMD Rule 208 for incorporation into the 
California SIP. EPA has evaluated this rule and determined that it is 
consistent with the CAA and EPA regulations and will maintain the SIP's 
control strategy.

DATES: Comments must be received on or before May 12, 1999.

ADDRESSES: Comments may be mailed to: Andrew Steckel, Rulemaking Office 
AIR-4, Air Division, U.S. Environmental Protection Agency, Region IX, 
75 Hawthorne Street, San Francisco, CA 94105-3901.
    Copies of the rules and EPA's evaluation report of the rules are 
available for public inspection at EPA's Region IX office during normal 
business hours. Copies of the submitted rules are also available for 
inspection at the following locations:

Environmental Protection Agency, Air Docket (6102), 401 ``M'' Street, 
S.W., Washington, D.C. 20460
California Air Resources Board, Stationary Source Division, Rule 
Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95812
San Joaquin Valley Unified Air Pollution Control District, 1990 East 
Gettysburg Street, Fresno, CA 93726
South Coast Air Quality Management District, 21865 East Copley Drive, 
Diamond Bar, CA 91765

FOR FURTHER INFORMATION CONTACT: Al Petersen, Rulemaking Office, AIR-4, 
Air Division, U.S. Environmental Protection Agency, Region IX, 75 
Hawthorne Street, San Francisco, CA 94105-3901, Telephone: (415) 744-
1135.

SUPPLEMENTARY INFORMATION:

I. Applicability

    The rules being proposed for limited approval and limited 
disapproval into the California SIP are SJVUAPCD Rule 4103, Open 
Burning (amended December 16, 1993) and SCAQMD Rule 444, Open Fires 
(amended October 2, 1987). SJVUAPCD Rule 4103 was submitted by the 
State of California to EPA on May 24, 1994. SCAQMD Rule 444 was 
submitted by the State of California to EPA on March 23, 1988.
    The rule being for proposed for full approval into the California 
SIP is SCAQMD Rule 208, Permit for Open

[[Page 17590]]

Burning (amended January 5, 1990). SCAQMD Rule 208 was submitted by the 
State of California to EPA on May 13, 1991.

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), that included the San 
Joaquin Valley Planning Area and South Coast Air Basin (43 FR 8964; 40 
CFR 81.305). 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. Public Law 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 or serious pursuant to section 188(a). 
The San Joaquin Valley Planning Area (now under the SJVUAPCD), the 
South Coast Air Basin (under the SCAQMD), and the Coachella Valley 
Planning Area (now under the SCAQMD) were among the areas designated 
nonattainment.
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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. This action is part of California's efforts to achieve 
compliance with the 1987 PM-10 standards.
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    On February 8, 1993, EPA classified four nonattainment areas as 
serious nonattainment, including the San Joaquin Valley Planning Area, 
the South Coast Air Basin, and the Coachella Valley Planning Area in 58 
FR 3334 (January 1, 1993). This Federal Register action for SCAQMD 
excludes the Los Angeles County portion of the Southeast Desert AQMA, 
otherwise known as the Antelope Valley Region in Los Angeles County, 
which is now under the jurisdiction of the Antelope Valley Air 
Pollution Control District, as of July 1, 1997.2
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    \2\ The State has recently changed the names and boundaries of 
the air basins located within the southeast Desert Modified AQMA. 
Pursuant to State regulation, the Coachella-San Jacinto Planning 
Area is now part of the Salton Sea Air Basin (California Code of 
Regulations, Title 17, 60114); the Victor Valley/Barstow Region in 
San Bernardino County and the Antelope Valley Region in Los Angeles 
County are now a part of the Mojave Desert Air Basin (California 
Code of Regulations, Title 17, 60109). In addition, in 1996 the 
California Legislature established a new local agency, the Antelope 
Valley Air Pollution Control District, to have the responsibility 
for local air pollution planning and measures in the Antelope Valley 
Region (California Health & Safety Code, 40406).
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    Section 189(a) of the CAA requires moderate PM-10 nonattainment 
areas to adopt reasonably available control measures (RACM), including 
reasonably available control technology (RACT) for stationary sources 
of PM-10. Section 189(b) of the CAA requires serious nonattainment 
areas with significant PM-10 sources to adopt best available control 
measures (BACM), including best available control technology (BACT). 
SCAQMD and SJVUAPCD are serious PM-10 nonattainment areas. SCAQMD has 
not identified Open Burning as a significant PM-10 source in their PM-
10 BACM Plan, so EPA will evaluate the SCAQMD rules against RACM 
requirements. If the SCAQMD BACM Plan should be disapproved, EPA may 
require SCAQMD to submit additional Open Burning provisions to meet 
BACM requirements. SJVUAPCD has not identified Open Burning as a non-
significant PM-10 source in their BACM Plan, so EPA will evaluate the 
SJVUAPCD rule against RACM and BACM requirements. However, EPA may 
identify additional BACM requirements for Open Burning upon review of 
the SJVUAPCD BACM Plan at a later date.
    In response to section 110(a) and Part D of the Act, the State of 
California submitted many PM-10 rules for incorporation into the 
California SIP, including the rules being acted on in this document. 
This document addresses EPA's proposed action for SJVUAPCD Rule 4103, 
Open Burning, SCAQMD Rule 444, Open Fires, and SCAQMD Rule 208, Permit 
for Open Burning. SJVUAPCD Rule 4103 was amended December 16, 1993, 
submitted by the State of California for incorporation into the SIP on 
May 24, 1994, and found to be complete on July 14, 1994, pursuant to 
EPA's completeness criteria that are set forth in 40 CFR part 51, 
appendix V.3 SCAQMD Rule 444, was amended October 2, 1987, 
and submitted by the State of California for incorporation into the SIP 
on March 23, 1988. SCAQMD Rule 208 was amended January 5, 1990, 
submitted by the State of California for incorporation into the SIP on 
May 13, 1991, and found to be complete on July 10, 1991. The following 
is EPA's evaluation and proposed action for these rules.
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    \3\ 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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III. EPA Evaluation and Proposed 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 Part D of the CAA and 40 CFR 
part 51 (Requirements for Preparation, Adoption, and Submittal of 
Implementation Plans). EPA must also ensure that rules are enforceable 
and strengthen the SIP or maintain the SIP's control strategy.
    The statutory provisions relating to RACM and BACM are discussed in 
EPA's ``General Preamble,'' which give the Agency's preliminary views 
on how EPA intends to act on SIPs submitted under Title I of the CAA. 
See 57 FR 13498 (April 16, 1992), 57 FR 18070 (April 28, 1992), and 59 
FR 41998 (August 16, 1994). In this proposed action, EPA is evaluating 
SCAQMD rules to determine if they fulfill the RACM requirements of CAA 
section 189(a) and is evaluating SJVUAPCD rules to determine if they 
fulfill the BACM requirements of CAA section 189(b).
    For the purpose of assisting state and local agencies in developing 
RACM and BACM rules, EPA prepared a series of technical guidance 
documents on PM-10 source categories (See CAA section 190). The RACM 
guidance applicable to these rules is entitled, ``Appendix C3--
Prescribed Burning Control Measures'' (57 FR 18072). The BACM guidance 
applicable to these rules is entitled, ``Prescribed Burning Background 
Document and Technical Information Document for Best Available Control 
Measures' (EPA-450/2-92-003).
    Submitted SJVUAPCD Rule 4103 replaces 25 rules in the existing SIP 
for the eight counties that now comprise the SJVUAPCD. SJVUAPCD Rule 
4103 regulates open burning and reduces PM emissions. Although SJVUAPCD 
Rule 4103 strengthens the SIP by combining and unifying the rules of 
eight counties and by eliminating the exemption for one- and two-family 
dwellings to burn residential rubbish, EPA has determined that SJVUAPCD 
Rule 4103 does not meet the requirements of RACM and BACM by allowing 
exemptions for eight burning activities that could be limited to 
Permissive-Burn Days. Rule 4103 also does not meet the requirements of 
BACM for Prescribed Burning (including Agricultural Burning, Forest 
Management Burning, Range Improvement Burning, and Wildland Vegetation 
Management Burning) to require burner training, to require emission 
reduction techniques, to require a smoke management plan, and

[[Page 17591]]

to require the second level of smoke dispersion evaluation during the 
day (the first level is the initial evaluation at the begining of the 
day).
    Submitted SCAQMD Rule 444 regulates open burning and reduces PM 
emissions. On July 6, 1982, EPA approved into the SIP a version SCAQMD 
Rule 444, Open Fires, that had been adopted by the District on October 
2, 1981. Although the submitted SCAQMD Rule 444 will strengthen the SIP 
by requiring an approved implementation plan for Wildland Vegetation 
Management burning, EPA has determined that SCAQMD Rule 444 does not 
meet the requirements of RACM for Prescribed Burning, because the rule 
does not base approval of a burn on an evaluation of an airshed's 
capacity to disperse PM-10 emissions from all types of Open Burning and 
Prescribed and other PM-10 sources, to encourage burner training by 
offering incentives, and to encourage the use of emission reduction 
techniques by offering incentives.
    There is currently no version of the SCAQMD Rule 208, Permit for 
Open Burning, in the SIP. Rule 208 requires a written permit to conduct 
Open Burning pursuant to SCAQMD Rule 444, Open Fires. EPA has evaluated 
the submitted SCAQMD Rule 208 and has determined that it is consistent 
with the CAA, EPA regulations, and meets the criteria for RACM in the 
General Preamble. EPA proposes full approval of SCAQMD Rule 208 into 
the California SIP.
    A detailed list of rules to be replaced and a discussion of rule 
deficiencies can be found in the Technical Support Documents for 
SJVUAPCD Rule 4103 and SCAQMD Rule 444, which are available from the 
U.S. EPA's Region IX office.
    Because of the above deficiencies, EPA cannot grant full approval 
of SJVUAPCD Rule 4103 and SCAQMD Rule 444 under section 110(k)(3) and 
part D. Also, because the submitted rules are not composed of separable 
parts that meet all the applicable requirements of the CAA, EPA cannot 
grant partial approval of the rules under section 110(k)(3). However, 
EPA may grant a limited approval of the submitted rules under section 
110(k)(3) in light of EPA's authority pursuant to section 301(a) to 
adopt regulations necessary to further air quality by strengthening the 
SIP. In order to strengthen the SIP, EPA is proposing a limited 
approval of SJVUAPCD Rule 4103, Open Burning and SCAQMD Rule 444, Open 
Fires, under sections 110(k)(3) and 301(a) of the CAA.
    At the same time, EPA is also proposing a limited disapproval of 
SJVUAPCD Rule 4103 and SCAQMD Rule 444, because they contain 
deficiencies, and, as such, the rules do not fully meet the 
requirements of part D of the Act. Under section 179(a)(2), if the 
Administrator disapproves a submission under section 110(k) for an area 
designated nonattainment, based on the submission's failure to meet one 
or more of the elements required by the Act, the Administrator must 
apply one of the sanctions set forth in section 179(b) unless the 
deficiency has been corrected within 18 months of such disapproval. 
Section 179(b) provides two sanctions available to the Administrator: 
Highway funding and offsets. The 18-month period referred to in section 
179(a) will begin on the effective date of EPA's final limited 
disapproval. Moreover, the final disapproval triggers the Federal 
implementation plan (FIP) requirement under section 110(c). It should 
be noted that the rules covered by this limited disapproval have been 
adopted by SJVUAPCD and SCAQMD and are currently in effect in SJVUAPCD 
and SCAQMD, respectively. EPA's final limited disapproval action will 
not prevent SJVUAPCD, SCAQMD, or EPA from enforcing these rules.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any state 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.

IV. Administrative Requirements

A. Executive Order 12866

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

B. Executive Order 12875

    Under Executive Order 12875, Enhancing the Intergovernmental 
Partnership, EPA may not issue a regulation that is not required by 
statute and that creates a mandate upon a State, local or tribal 
government, unless the Federal government provides the funds necessary 
to pay the direct compliance costs incurred by those governments, or 
EPA consults with those governments. If EPA complies by consulting, 
Executive Order 12875 requires EPA to provide to the Office of 
Management and Budget a description of the extent of EPA's prior 
consultation with representatives of affected State, local and tribal 
governments, the nature of their concerns, copies of any written 
communications from the governments, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 12875 
requires EPA to develop an effective process permitting elected 
officials and other representatives of State, local and tribal 
governments ``to provide meaningful and timely input in the development 
of regulatory proposals containing significant unfunded mandates.'' 
Today's rule does not create a mandate on State, local or tribal 
governments. The rule does not impose any enforceable duties on these 
entities. Accordingly, the requirements of section 1(a) of E.O. 12875 
do not apply to this rule.

C. Executive Order 13045

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is 
determined to be ``economically significant'' as defined under E.O. 
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 E.O. 13045 because it does 
not involve decisions intended to mitigate environmental health or 
safety risks.

D. Executive Order 13084

    Under Executive Order 13084, Consultation and Coordination with 
Indian Tribal Governments, EPA may not issue a regulation that is not 
required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a

[[Page 17592]]

summary of the nature of their concerns, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 13084 
requires EPA to develop an effective process permitting elected 
officials and other representatives of Indian tribal governments ``to 
provide meaningful and timely input in the development of regulatory 
policies on matters that significantly or uniquely affect their 
communities.'' Today's rule does not significantly or uniquely affect 
the communities of Indian tribal governments. Accordingly, the 
requirements of section 3(b) of E.O. 13084 do not apply to this rule.

E. 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 approve requirements that the State is 
already imposing. Therefore, because the Federal SIP approval does not 
create any new requirements, I certify that this action will not have a 
significant economic impact on a substantial number of small entities. 
Moreover, due to the nature of the Federal-State relationship under the 
Clean Air Act, preparation of flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of state action. The 
Clean Air Act forbids EPA to base its actions concerning SIPs on such 
grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 
42 U.S.C. 7410(a)(2).

F. 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 
annual 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 annual costs of 
$100 million or more to either State, local, or tribal governments in 
the aggregate, or to the private sector. This Federal action approves 
pre-existing requirements under State or local law, and imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Particulate matter, Reporting 
and recordkeeping requirements.

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

    Dated: March 22, 1999.
Alexis Strauss,
Acting Regional Administrator, Region IX.
[FR Doc. 99-8949 Filed 4-9-99; 8:45 am]
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