[Federal Register Volume 65, Number 144 (Wednesday, July 26, 2000)]
[Rules and Regulations]
[Pages 45912-45915]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-18435]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 013-0139; FRL-6729-8]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing a limited approval and limited disapproval 
of revisions to the California State Implementation Plan (SIP) proposed 
in the Federal Register on April 12, 1999. This final action will 
incorporate these rules into the federally approved SIP. The intended 
effect of finalizing this action is to regulate particulate matter (PM) 
emissions in accordance with the requirements of the Clean Air Act, as 
amended in 1990 (CAA or the Act). The revised rules regulate PM-10 
emissions from open burning. Thus, EPA is finalizing simultaneous 
limited approvals and limited disapprovals under CAA provisions 
regarding EPA action on SIP submittals and general rulemaking authority 
because these

[[Page 45913]]

revisions, while strengthening the SIP, do not fully meet the CAA 
provisions regarding plan submissions and requirements for 
nonattainment areas. As a result of these limited disapprovals EPA will 
be required to impose highway funding or emission offset sanctions 
under the CAA unless the State submits and EPA approves corrections to 
the identified deficiencies within 18 months of the effective date of 
these disapprovals. Moreover, EPA will be required to promulgate a 
Federal implementation plan (FIP) unless the deficiencies are corrected 
within 24 months of the effective date of these disapprovals.

EFFECTIVE DATE: This action is effective on August 25, 2000.

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 sites:
    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), Ariel Rios 
Building, 1200 Pennsylvania Avenue, NW., Washington, DC 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, Telephone: (415) 744-1135.

SUPPLEMENTARY INFORMATION:

I. Applicability

    The rules being approved into the California SIP include San 
Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) Rule 
4103, Open Burning (adopted on December 16, 1993), and South Coast Air 
Quality Management District (SCAQMD) Rule 444, Open Fires (adopted on 
October 2, 1987). These rules were submitted by the California Air 
Resources Board (CARB) to EPA on May 24, 1994 and March 23, 1988, 
respectively.

II. Background

    On April 12, 1999 in 64 FR 17589, EPA proposed granting limited 
approval and limited disapproval of the following rules into the 
California SIP: SJVUAPCD Rule 4103, Open Burning, and SCAQMD Rule 444, 
Open Fires. SJVUAPCD Rule 4103 was amended on December 16, 1993, and 
submitted by the CARB to EPA on May 24, 1994. SCAQMD Rule 444, was 
amended on October 2, 1987, and submitted by the CARB to EPA on March 
23, 1988. These PM-10 rules were submitted by the State of California 
in response to section 110(a) and Part D of the CAA for incorporation 
into the California SIP. A detailed discussion of the background for 
the above rules and the nonattainment areas are provided in the 
proposed rule cited above.
    EPA has evaluated the above rules 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) and EPA's 
interpretation of these requirements as expressed in various EPA policy 
guidance documents referenced in the proposed rule. EPA is finalizing 
the limited approval of SJVUAPCD Rule 4103 and SCAQMD Rule 444 in order 
to strengthen the SIP and finalizing the limited disapproval requiring 
the correction of the remaining deficiencies.
    Submitted SJVUAPCD Rule 4103 replaces twenty-five rules in the 
Applicable SIP for the eight counties that now comprise the SJVUAPCD. 
SJVUAPCD Rule 4103 regulates open burning and reduces PM-10 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 to require the second level of smoke dispersion evaluation 
during the day (the first level is the initial evaluation at the 
beginning of the day).
    Submitted SCAQMD Rule 444 regulates open burning and reduces PM-10 
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, 
including Prescribed Burning, and other PM-10 sources, to encourage 
burner training by offering incentives, and to encourage the use of 
emission reduction techniques by offering incentives.
    A detailed list of rules to be replaced and a discussion of rule 
provisions and deficiencies can be found in the Technical Support 
Documents for SJVUAPCD Rule 4103 and SCAQMD Rules 444 and 208, which 
are available from the U.S. EPA's Region IX office.

III. Response to Public Comments

    A 30-day public comment period was provided in 64 FR 17589. EPA 
received one comment letter on the proposed rule from David L. Jones, 
SJVUAPCD. The comment has been evaluated by EPA and a summary of the 
comment and EPA's response is set forth below.
    Comment: Mr. Jones commented that the California Air Resources 
Board (CARB) is planning to take action to revise the Agricultural 
Burning Guidelines, California Code of Regulations, Title 17, in late 
1999. Changes currently being proposed to Title 17 would require that 
SJVUAPCD Rule 4103 be amended, which would also eliminate many of the 
deficiencies cited by EPA. The SJVUAPCD requests that EPA delay final 
rulemaking on Rule 4103 until after the CARB takes action on the 
proposed changes to Title 17. This would allow the SJVUAPCD time to 
complete the amendment of Rule 4103 in an orderly and cost saving 
manner.
    Response: EPA delayed final rulemaking until after the California 
Air Resources board adopted the Smoke Management Guidelines for 
Agricultural and Prescribed Burning (SMGAPB) on March 23, 2000. EPA 
notes that the exemption for agricultural burning on a No-burn day, `` 
if denial would threaten imminent and substantial economic loss,'' is 
retained in the revised SMGAPB. The exemption in the revised

[[Page 45914]]

SMGAPB is now mitigated by limiting the amount to be burned and by 
allowing burning only when not likely to cause or contribute to 
exceedences of the NAAQS or smoke impact to smoke sensitive areas. 
However, EPA has determined that this exemption as now written is 
implemented by Director's discretion and is not enforceable nor 
approvable by EPA. A District planning to submit a rule containing this 
exemption should define clearly ``an imminent and substantial economic 
loss'' and should state clearly the guidelines for determining the 
amount of material to be burned, geographical location, and 
meteorological conditions that would allow such an exemption.

IV. EPA Action

    EPA is finalizing a limited approval and a limited disapproval of 
SJVUAPCD Rule 4103 and SCAQMD Rule 444. The limited approval of these 
rules is being finalized under section 110(k)(3) of the CAA in light of 
EPA's authority pursuant to section 301(a) of the CAA to adopt 
regulations necessary to further air quality by strengthening the SIP. 
The approval is limited in the sense that the rules strengthen the SIP. 
However, the rules do not meet the requirements of section 110(a)(2)(A) 
of the CAA because of the rule deficiencies which were discussed in the 
proposed rule. Thus, in order to strengthen the SIP, EPA is granting 
limited approval of these rules under sections 110(k)(3) and 301(a) of 
the CAA. This action approves SJVUAPCD Rule 4103, Open Burning, and 
SCAQMD Rule 444, Open Fires, into the SIP as federally enforceable 
rules.
    At the same time, EPA is finalizing a limited disapproval of 
SJVUAPCD Rule 4103 and SCAQMD Rule 444, because they contain 
deficiencies that have not been corrected by section 110(a)(2)(A) of 
the CAA, and, as such, the rules do not fully meet the requirements of 
part D of the Act. As stated in the proposed rule, upon the effective 
date of this final rule, the 18 month clock for sanctions and the 24 
month FIP clock will begin per sections 179(a) and 110(c) of the CAA. 
If the State does not submit the required corrections and EPA does not 
approve the submittal within 18 months of the effective date of the 
final rule, either the highway sanction or the offset sanction will be 
imposed at the 18 month mark. It should be noted that the rules covered 
by this final rule have been adopted by SJVUAPCD and SCAQMD and are 
currently in effect in SJVUAPCD and SCAQMD, respectively. EPA's limited 
disapproval action will not prevent SJVUAPCD, SCAQMD, or EPA from 
enforcing these rules.

V. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) 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 
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 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 affects 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. If the mandate is unfunded, 
EPA must provide to OMB, 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 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 Executive Order 13084 do not apply to this rule.

D. 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.

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.

[[Page 45915]]

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).

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 
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 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.

G. 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.

H. 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).

I. 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 September 25, 2000. 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, Hydrocarbons, 
Incorporation by reference, Intergovernmental relations, Particulate 
matter, Reporting and recordkeeping requirements.

    Dated: June 14, 2000.
Laura Yoshii,
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)(176)(i)(E) 
and (197)(i)(C)(4) to read as follows:


Sec. 52.220  Identification of plan.

* * * * *
    (c) * * *
    (176) * * *
    (i) * * *
    (E) South Coast Air Quality Management District.
    (1) Rule 444, adopted on October 2, 1987.
* * * * *
    (197) * * *
    (i) * * *
    (C) * * *
    (4) Rule 4103, adopted on December 16, 1993.
* * * * *
[FR Doc. 00-18435 Filed 7-20-00; 8:45 am]
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