[Federal Register Volume 64, Number 176 (Monday, September 13, 1999)]
[Rules and Regulations]
[Pages 49398-49400]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-23588]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA 192-0161; FRL-6434-2]
Approval and Promulgation of Implementation Plans; California
State Implementation Plan Revision, Mojave Desert Air Quality
Management District and Tehama County Air Pollution Control District
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is finalizing approval to 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).
EFFECTIVE DATE: This action is effective on October 13, 1999.
ADDRESSES: 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:
Rulemaking Office, (AIR-4), Air Division, U.S. Environmental Protection
Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901
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
Mojave Desert Air Quality Management District, 15428 Civic Drive, Suite
200, Victorville, CA 92392
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 finalized 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 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 February 21, 1972 and approved on May 31, 1972
(37 FR 10856) 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 finalized 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 May 31, 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 on September 8, 1978 (43 FR 40018)
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 finalized for recision by MDAQMD were originally
adopted by SBCAPCD for the purpose of controlling particulate matter
PM-10 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
[[Page 49399]]
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 final action to approve the
recision of SBCAPCD Regulation VI, which includes Rules 100-104, 109,
110, 120, and 130-137, from the SIP. 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
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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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This document also addresses EPA's final action to approve the
recision of TCAPCD Rule 4.13 from the SIP. The recision was adopted by
TCAPCD September 10, 1985. The following are EPA's response to public
comments and evaluation and final action for these rules.
III. Response to Public Comments
EPA proposed this action and announced a 30-day public comment
period on May 13, 1999 (64 FR 25822). On the same day, EPA published a
direct final approval of the proposed action. EPA received one comment
letter on the proposed rule from Eldon Heaston, MDAQMD. As a result,
EPA withdrew the direct final approval on July 12, 1999 (64 FR 37406).
The comment has been evaluated by EPA and a summary of the comment and
EPA's response is set forth below.
Comment: Mr. Heaston commented that it is not clear that the EPA
recision action deleted [San Bernardino County APCD] Regulation VI from
the SIP and corrected the previous disapproval of the recision in 40
CFR 52.220(c)(39)(ii)(D) and 40 CFR 52.228(b)(1)(iv).
Response: EPA determined that the original submittal and approval
dates of San Bernardino County APCD Regulation VI were incorrect in EPA
records, therefore the incorporation by reference into the CFR was
incorrect. This final action corrects the original submittal and
approval dates, corrects the incorporation by reference to 40 CFR
52.220(b)(3)(ii), and deletes the previous disapproval in 40 CFR
52.220(c)(39)(ii)(D) and in 40 CFR 52.228(b)(1)(iv).
IV. EPA Evaluation and Final 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 approved under section
110(k)3 of the CAA as meeting the requirements of section 110(a) and
part D.
V. 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 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
[[Page 49400]]
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 November 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).)
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.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Reporting and recordkeeping
requirements, Particulate matter.
Dated: August 26, 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:
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 removing paragraph (c)(39)(ii)(D)
and by adding paragraphs (b)(3)(ii) and (b)(4) 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.
(4) San Bernardino County APCD.
(i) Previously approved on May 31, 1972 and now deleted without
replacement Regulation VI, Rules 100 to 104, 109, 110, 120, and 130 to
137.
* * * * *
3. Section 52.228 is amended by removing paragraph (b)(1)(iv).
[FR Doc. 99-23588 Filed 9-10-99; 8:45 am]
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