[Federal Register Volume 64, Number 92 (Thursday, May 13, 1999)]
[Rules and Regulations]
[Pages 25822-25825]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-11825]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 192-0132a; FRL-6334-5]


Approval and Promulgation of Implementation Plans; California 
State Implementation Plan Revisions, Mojave Desert Air Quality 
Management District and Tehama County Air Pollution Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve revisions to the 
California State Implementation Plan (SIP) which concern the recision 
of rules for the Mojave Desert Air Quality Management District (MDAQMD) 
and Tehama County Air Pollution Control District (TCAPCD). These rules 
concern emissions from orchard heaters and fuel burning equipment. The 
intended effect of this action is to bring the MDAQMD and TCAPCD SIPs 
up to date in accordance with the requirements of the Clean Air Act, as 
amended in 1990 (CAA or the Act).

DATES: This rule is effective on July 12, 1999 without further notice, 
unless EPA receives relevant adverse comments by June 14, 1999. If EPA 
receives such comments then it will publish a timely withdrawal in the 
Federal Register informing the public that this rule will not take 
effect.

ADDRESSES: Written comments should be addressed 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 for the rules are 
available for public inspection at EPA's Region IX office during normal 
business hours. Copies of the submitted rule revisions are also 
available for inspection at the following locations:

California Air Resources Board, Stationary Source Division, Rule 
Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95812.
Mojave Desert Air Quality Management District, 15428 Civic Drive, Suite 
200, Victorville, CA 92392-2383
-Tehama County Air Pollution Control District, 1760 Walnut Street, Red 
Bluff, CA 96080.

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 recision from the MDAQMD portion of 
the California SIP are included in San Bernardino County Air Pollution 
Control District (SBCAPCD) Regulation VI, Orchard, Field or Citrus 
Grove Heaters, consisting of Rule 100, Definitions; Rule 101, 
Exceptions; Rule 102, Permits Required; Rule 103, Transfer; Rule 104, 
Standards for

[[Page 25823]]

Granting Permits; Rule 109, Denial of Application; Rule 110, Appeals; 
Rule 120, Fees; Rule 130, Classification of Orchard Heaters; Rule 131, 
Class I Heaters Designated; Rule 132, Class II Heaters Designated; Rule 
133, Identification of Heaters; Rule 134, Use of Incomplete Heaters 
Prohibited; Rule 135, Cleaning, Repairs; Rule 136, Authority to 
Classify Orchard Heaters; and Rule 137, Enforcement. These rules were 
previously submitted by the California Air Resources Board (CARB) to 
EPA on June 30, 1972 and approved on September 22, 1972, 37 FR 19812, 
for incorporation into the SIP. These rule recisions were adopted by 
the MDAQMD on June 24, 1996 and submitted by CARB to EPA on March 3, 
1997.
    The rule being proposed for recision from the TCAPCD portion of the 
California SIP is TCAPCD Rule 4.13, Fuel Burning Equipment. This rule 
was previously submitted by CARB to EPA on February 21, 1972 and 
approved on May 31, 1972, 37 FR 10856, for incorporation into the SIP. 
This rule recision was adopted by the TCAPCD on September 10, 1985 and 
submitted by CARB to EPA on February 10, 1986.

II. Background

    On September 22, 1972, the EPA approved SBCAPCD Regulation VI, 
Rules 100-104, 109, 110, 120, and 130-137, Orchard, Field or Citrus 
Grove Heaters, for incorporation into the SIP. The SBCAPCD rescinded 
Regulation VI from its rulebook prior to 1977. The recision of SBCAPCD 
Regulation VI was disapproved by EPA (43 FR 40018, September 8, 1978) 
as a SIP relaxation. On July 1, 1993, the SBCAPCD became the Mojave 
Desert Air Quality Management District (MDAQMD) by act of the 
California Legislature. In 1994, MDAQMD added portions of Riverside 
County, the Palo Verde Valley, and Blythe. The SBCAPCD rules remain in 
effect after July 1, 1993 until the MDAQMD rescinds or supersedes them. 
The rules being proposed for recision by MDAQMD were originally adopted 
by SBCAPCD for the purpose of controlling emissions from orchard 
heaters. In the spring of 1995, the MDAQMD conducted a survey of 
affected industry to determine if Class I and Class II orchard heaters 
were still in use. The survey determined that no known facility within 
the MDAQMD uses this antiquated technology. Wind machines are currently 
used to protect crops from frost. Therefore, the recision of SBCAPCD 
Regulation VI by MDAQMD does not relax the SIP control strategy.
    On July 12, 1990, EPA approved TCAPCD Rule 4.9, Specific 
Contaminants, and Rule 4.14, Fuel Burning Equipment (Operational), for 
incorporation into the SIP. Rule 4.13, Fuel Burning Equipment, is 
submitted for recision, since Rules 4.9 and 4.14 provide regulation of 
the same pollutant emissions. Rule 4.9 regulates SOX and combustion 
contaminant (particulate matter) emissions by limiting the respective 
concentrations in the gas, instead of by absolute quantities of 
emissions. Rule 4.14 regulates NOX emissions by limiting the 
concentration in the gas, instead of by absolute quantity of emissions. 
SIP-approved Rules 4.9 and 4.14 strengthen the SIP relative to Rule 
4.13, except for large fuel burning equipment with a capacity in excess 
of about 500 million British Thermal Units per hour. The TCAPCD does 
not have larger capacity sources; therefore, the recision of TCAPCD 
rule 4.13 does not relax the SIP control strategy.
    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 rule recisions being acted on in this 
document. This document addresses EPA's direct-final action for 
approving the recision of SBCAPCD Regulation VI, which includes Rules 
100-104, 109, 110, 120, and 130-137. The recision was adopted June 24, 
1996 by MDAQMD. This submittal was found to be complete on August 12, 
1997, pursuant to EPA's completeness criteria that are set forth in 40 
CFR Part 51 Appendix V.1 These rules are being proposed for 
recision from the SIP. This document also addresses EPA's proposed 
action approving the recision of TCAPCD Rule 4.13. The recision was 
adopted by TCAPCD September 10, 1985. This rule is being proposed for 
recision from the SIP. The following is EPA's evaluation and final 
action for these rules.
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    \1\ 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 strengthen the 
SIP or maintain the SIP's control strategy.
    EPA has evaluated the submitted rule recisions and has determined 
that they are consistent with the CAA, EPA regulations, and EPA policy. 
Therefore, the recision of SBCAPCD Regulation VI, Rules 100-104, 109, 
110, 120, and 130-137 and TCAPCD Rule 4.13 are being approved under 
section 110(k)3 of the CAA as meeting the requirements of section 
110(a) and part D.
    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 July 
12, 1999 without further notice unless the Agency receives relevant 
adverse comments by June 14, 1999.
    If the EPA receives such comments, then EPA will publish a timely 
withdrawal informing the public that the rule will not take effect. All 
public comments received will then be addressed in a subsequent final 
rule based on the 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 July 12, 1999 
and no further action will be taken on the proposed recisions.

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

[[Page 25824]]

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 is 
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 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.

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

H. 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 July 12, 1999. 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, 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: April 9, 1999.
David P. Howekamp,
Acting Regional Administrator, Region IX.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

[[Page 25825]]

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 (b)(3)(ii) and 
(c)(6)(xv)(B) to read as follows:


Sec. 52.220  Identification of plan.

* * * * *
    (b) * * *
    (3) * * *
    (ii) Previously approved on May 31, 1972 and now deleted without 
replacement Rule 4.13.
* * * * *
    (c) * * *
    (6) * * *
    (xv) * * *
    (B) Previously approved on September 22, 1972 and now deleted 
without replacement Rules 100 to 104, 109, 110, 120, and 130 to 137.
* * * * *
[FR Doc. 99-11825 Filed 5-12-99; 8:45 am]
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