[Federal Register Volume 67, Number 26 (Thursday, February 7, 2002)]
[Rules and Regulations]
[Pages 5725-5727]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-2839]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 071-0309; FRL-7134-2]


Revisions to the California State Implementation Plan, San 
Joaquin Valley Unified Air Pollution Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing a limited approval and limited disapproval 
of a revision to the San Joaquin Valley Unified Air Pollution Control 
District (SJVUAPCD) portion of the California State Implementation Plan 
(SIP). This action was proposed in the Federal Register on December 15, 
2000 and concerns PM-10 emissions from residential wood combustion. 
Under authority of the Clean Air Act as amended in 1990 (CAA or the 
Act), this action simultaneously approves a local rule that regulates 
this emission source and directs California to correct rule 
deficiencies.

EFFECTIVE DATE: This rule is effective on March 11, 2002.

ADDRESSES: You can inspect a copy of the administrative record for this 
action at EPA's Region IX office during normal business hours. You can 
inspect a copy of the submitted rule revision at the following 
locations:

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, 1001 ``I'' Street, Sacramento, CA 95814.
San Joaquin Valley Unified Air Pollution Control District, 1990 East 
Gettysburg Street, Fresno, CA 93726.

FOR FURTHER INFORMATION CONTACT: Al Petersen, Rulemaking Office (AIR-
4), U.S. Environmental Protection Agency, Region IX; (415) 947-4118.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to EPA.

I. Proposed Action

    On December 15, 2000 (65 FR 78434), EPA proposed a limited approval 
and limited disapproval of the rule in table 1 that was submitted for 
incorporation into the California SIP.

                                            Table 1.--Submitted Rule
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              Local agency                  Rule No.              Rule title              Adopted     Submitted
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SJVUAPCD................................         4901  Residential Wood Burning.......     07/15/93     12/10/93
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    We proposed a limited approval because we determined that this rule 
improves the SIP and is largely consistent with the relevant CAA 
requirements. We simultaneously proposed a limited disapproval because 
some rule provisions conflict with section 110 and part D of the CAA. 
Our proposed action contains more information on the rule and our 
evaluation.

II. Public Comment and EPA Response

    EPA's proposed action provided a 
30-day public comment period. During this period, we received a comment 
from the following party:
    Mark Boese, SJVUAPCD; letter dated January 11, 2001 and received 
January 16, 2001.
    We received additional information from SJVUAPCD on November 29, 
2001 which further elucidated the January 11th comment. This 
information was a memorandum titled, ``Contributions from residential 
woodburning to PM-10 and PM-2.5 in San Joaquin Valley cities and 
potential emissions reduction strategies,'' from Dr. John Watson to 
Evan Shipp dated November 28, 2001.
    The comment on Rule 4901 and our response is summarized below.
    Comment: SJVUAPCD notes that the BACM control measures suggested by 
EPA for Rule 4901, Residential Wood Burning, would be very 
controversial. SJVUAPCD needs a strong and clear relationship between 
residential wood burning and air quality to justify additional control 
measures. There is currently a California Regional Particulate Matter 
Air Quality Study (CRPAQS) from which preliminary data indicates there 
is such a relationship. But SJVUAPCD requests a postponement of the 
final notice for at least 10 months to allow time to evaluate a final 
report on the CRPAQS.
    The subsequent information from Dr. Watson, a principal researcher 
on CRPAQS, explained that data from CRPAQS clearly supports additional 
controls on residential wood combustion.
    Response: We have postponed final action on Rule 4901 for the 
requested time period.
    As discussed in our December 15, 2000 proposal, the reference, 
Technical Information Document for Residential Wood Combustion Best 
Available Control Measures, EPA-450/2-92-002 (September 1992), provides 
national policy on determining BACM for residential wood combustion. 
This document provides a list of potential BACM measures that should be 
implemented unless SJVUAPCD demonstrates that they are not achievable 
given local conditions. Since this list of measures is over nine years 
old, SJVUAPCD should implement all those that are achievable as well as 
any other measures achievable in San Joaquin that have been developed 
in other serious PM-10 nonattainment areas. While we have not performed 
the thorough evaluation that SJVUAPCD must, and while the items below 
are not intended to identify the minimum measures necessary to fulfill 
BACM, three items from the national policy that seem likely achievable 
include the following:
     While the submitted rule describes a program for notifying 
the public of high PM-10 episodes and voluntary curtailment of solid-
fuel-burning devices, it does not require any mandatory curtailment. 
EPA believes, at a minimum, that mandatory episodic curtailment can be 
implemented. The District should consider whether limiting the 
curtailment to open fireplaces and non-certified devices, the largest 
emitters of PM-10 and smoke, is appropriate or whether a more broad-
based curtailment is necessary. A limited mandatory curtailment program 
could be incorporated as part of the voluntary curtailment program and 
could give the District authority to enforce on open fireplaces and 
non-certified devices in the event of public complaint.
     The District should consider revising the rule to require 
wood stoves and fireplaces to have EPA-certified phase II standards 
upon property sale or transfer.

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     The District should consider revising the rule and 
collaborating with cities and counties on ordinances to limit the 
number of wood stoves and fireplaces per acre in new construction and 
require EPA-certified phase II standards on those being installed.

III. EPA Action

    No comments were submitted that change our assessment of the rule 
as described in our proposed action. Therefore, as authorized in 
sections 110(k)(3) and 301(a) of the Act, EPA is finalizing a limited 
approval of the submitted rule. This action incorporates the SJVUAPCD 
Rule 4901 into the California SIP, including those provisions 
identified as deficient. As authorized under section 110(k)(3), EPA is 
simultaneously finalizing a limited disapproval of the rule. As a 
result, sanctions will be imposed unless EPA approves a subsequent SIP 
revision that corrects the rule deficiencies within 18 months of the 
effective date of this action. These sanctions will be imposed under 
section 179 of the CAA as described in 59 FR 39832 (August 4, 1994). In 
addition, EPA must promulgate a federal implementation plan (FIP) under 
section 110(c) unless we approve a subsequent SIP revision that 
corrects the rule deficiencies within 24 months. Note that the 
submitted rule has been adopted by the local agency, and EPA's final 
limited disapproval does not prevent the local agency from enforcing 
it.

IV. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget has exempted this regulatory 
action from Executive Order 12866, entitled ``Regulatory Planning and 
Review.''

B. Executive Order 13211

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

C. 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.

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 CAA. Thus, the requirements of 
section 6 of the Executive Order do not apply to this rule.

E. Executive Order 13175

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    This final rule does not have tribal implications. It will not have 
substantial direct effects on tribal governments, on the relationship 
between the Federal government and Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
Thus, Executive Order 13175 does not apply to this rule.

F. 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 CAA 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 CAA 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

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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 CAA, preparation of flexibility analysis would constitute Federal 
inquiry into the economic reasonableness of state action. The CAA 
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).

G. 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.

H. 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.

I. 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).

J. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by April 8, 2002. 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, Particulate matter, Reporting 
and recordkeeping requirements.

    Dated: January 13, 2002.
Wayne Nastri,
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 paragraph (c)(235) to read 
as follows:


Sec. 52.220  Identification of plan.

* * * * *
    (c) * * *
    (235) New and amended regulations for the following APCD were 
submitted on December 10, 1993, by the Governor's designee.
    (i) Incorporation by reference.
    (A) San Joaquin Valley Unified Air Pollution Control District.
    (1) Rule 4901, adopted on July 15, 1993.
* * * * *
[FR Doc. 02-2839 Filed 2-6-02; 8:45 am]
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