[Federal Register Volume 67, Number 39 (Wednesday, February 27, 2002)]
[Rules and Regulations]
[Pages 8894-8897]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-4526]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 250-0317a; FRL-7145-8]


Revisions to the California State Implementation Plan, San 
Joaquin Valley Unified 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 a revision to the 
San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) 
portion of the California State Implementation Plan (SIP). This 
revision concerns the emission of particulate matter (PM-10) from open 
burning, prescribed burning, and hazard reduction burning. We are 
approving local rules that regulate this emission source under the 
Clean Air Act as amended in 1990 (CAA or the Act).

DATES: This rule is effective on April 29, 2002 without further notice, 
unless EPA receives adverse comments by March 29, 2002. If we receive 
such comments, we will publish a timely withdrawal in the Federal 
Register to notify the public that this rule will not take effect.

ADDRESSES: Mail comments to Andy Steckel, Rulemaking Office Chief (AIR-
4), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne 
Street, San Francisco, CA 94105.
    You can inspect copies of the submitted rule revisions and EPA's 
technical support document (TSD) at our Region IX office during normal 
business hours. You may also see copies of the submitted rule revisions 
and TSD at the following locations:

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.

Table of Contents

I. The State's Submittal
    A. What rules did the State submit?
    B. Are there other versions of these rules?
    C. What is the purpose of the submitted rule revisions?
II. EPA's Evaluation and Action
    A. How is EPA evaluating the rules?
    B. Do the rules meet the evaluation criteria?
    C. Public comment and final action
III. Background Information
    Why was this rule submitted?
IV. Administrative Requirements

I. The State's Submittal

A. What Rules Did the State Submit?

    Table 1 lists the rules we are approving with the date that they 
were adopted by the local air agency and submitted by the California 
Air Resources Board (CARB).

[[Page 8895]]



                                            Table 1.--Submitted Rules
----------------------------------------------------------------------------------------------------------------
             Local agency                Rule #                Rule title                 Adopted     Submitted
----------------------------------------------------------------------------------------------------------------
SJVUAPCD.............................       4103  Open Burning........................     06/21/01     10/30/01
SJVUAPCD.............................       4106  Prescribed Burning and Hazard            06/21/01     10/30/01
                                                   Reduction Burning.
----------------------------------------------------------------------------------------------------------------

    On January 18, 2002, this submittal was found to meet the 
completeness criteria in 40 CFR part 51, appendix V, which must be met 
before formal EPA review.

B. Are There Other Versions of These Rules?

    We approved into the SIP on July 26, 2000 (65 FR 45912) a version 
of Rule 4103, adopted on December 16, 1993. Rule 4106 is a new rule.

C. What Is the Purpose of the Submitted Rule Revisions?

    The purpose of the submitted revised Rules 4103 and 4106 are to 
remedy the deficiencies cited in the limited approval of Rule 4103 on 
July 26, 2000 (65 FR 45912).

II. EPA's Evaluation and Action

A. How Is EPA Evaluating the Rules?

    Generally, SIP rules must be enforceable (see section 110(a) of the 
CAA) and must not relax existing requirements (see sections 110(l) and 
193). 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). SJVUAPCD is 
a serious PM-10 nonattainment area and must meet the requirements of 
BACM/BACT. BACM/BACT is not required for source categories that are not 
significant (de minimus) and there are no major sources. See Addendum 
to the General Preamble for the Implementation of Title I of the Clean 
Air Act Amendments of 1990, 59 FR 41998 (August 16, 1994).
    The following guidance documents were used for reference:
     Requirements for Preparation, Adoption, and Submittal of 
Implementation Plans, U.S. EPA, 40 CFR Part 51.
     General Preamble Appendix C3--Prescribed Burning Control 
Measures (57 FR 18072, April 28, 1992).
     Prescribed Burning Background Document and Technical 
Information Document for Best Available Control Measures (EPA-450/2-92-
003).
     General Preamble for the Implementation of Title I of the 
Clean Air Act Amendments of 1990, 57 FR 13498, 13540 (April 16, 1992).
     Addendum to the General Preamble for the Implementation of 
Title I of the Clean Air Act Amendments of 1990, 59 FR 41998 (August 
16, 1994).

B. Do the Rules Meet the Evaluation Criteria?

    We believe the rules are consistent with the relevant policy and 
guidance regarding enforceability, SIP relaxations, and fulfilling 
BACM/BACT. All of the deficiencies identified in our previous limited 
approval and limited disapproval action on Rule 4103 have been 
adequately addressed as follows:
     (Burning to prevent an imminent fire hazard that cannot be 
abated by other means should be done on a permissive-burn day.) The 
exemption from all provisions of Rule 4103 for an imminent fire hazard 
that cannot be abated by other means is still included in the rule and 
could allow burning on a no-burn day. 4103.4.1.2. There is no exemption 
for hazard reduction burning, which is allowed only on a permissive-
burn day. 4106.5.1.4. We concur with the District's argument that 
burning allowed in the case of an imminent fire hazard could remedy a 
dangerous fire hazard instead of waiting for a permissive-burn day and 
is an appropriate measure. Hazard reduction burning is a less imminent 
form of hazard, and it is appropriate to require such burning on a 
permissive-burn day. The exemption for an imminent fire hazard fulfills 
the requirements of BACM.
     (Burning training should be done on permissive-burn days 
or should be limited to a short time or small amount of fuel.) The 
District has argued that it is very difficult to schedule personnel in 
advance from different locations in a large District of eight counties 
for training that coincides with a permissive-burn day, which often 
does not occur for many consecutive days. We concur that the exemption 
from the rule for fire-fighting training, which could allow burning on 
no-burn days, is reasonable. However, the exemption was restricted to 
require written authorization from the Air Pollution Control Officer 
(APCO) for all necessary fire-fighting training activities and to 
require that a burn plan be submitted and receive prior approval from 
the APCO for any fire-fighting training activities not located at a 
stationary fire-training facility. 4103.4.2.1 and 4103.6.2.1. This 
restricted exemption for burning training fulfills the requirements of 
BACM.
     (The addition of the exemption to burn on no-burn days for 
disease and pest prevention, where there is no reasonable alternative, 
is a SIP relaxation.) The District argued that Rules 4103 and 4106 are 
more stringent overall than the SIP rule given a limited approval/
limited disapproval, therefore this minor and unpredictable relaxation 
does not violate section 110(l) of the CAA. We concur with the 
District's argument that this exemption, which could allow burning on 
no-burn days, is a necessary and appropriate measure for timely control 
of unplanned natural infestations where there is no reasonable 
alternative. This exemption is restricted to require that such burning 
only be done after written authorization from the APCO. 4103.4.2. This 
restricted exemption for disease and pest prevention fulfills the 
requirements of BACM.
     (Empty pesticide sacks should be burned on permissive-burn 
days unless the source category is de minimums.) The exemption to burn 
on no-burn days was expanded to include toxic substances other than 
pesticides but to not include fertilizer sacks. 4103.4.3.1. The 
District showed that this source category is almost de minimums, since 
it accounts for only 1.4% of the total PM-10 emissions. They argue that 
it is less hazardous to burn empty pesticide and hazardous material 
sacks in the field where emptied than to transport and store them while 
waiting to burn on a permissive-burn day. Furthermore, such burning is 
still restricted by permit requirements and subject to the tonnage 
allocation by the APCO to prevent an exceedance of the National Ambient 
Air Quality Standards (NAAQS) even on a no-burn day. This restricted 
exemption for empty pesticide and toxic material sacks fulfills the 
requirements of BACM.
     (Tumbleweeds should be burned with a permit on a 
permissive-burn day.) This is implemented. 4103.5.8.
     (Range improvement burning (a type of prescribed burning) 
from January 1 to May 31 should occur on a permissive-burn day.) This 
is implemented. 4106.4.9.5.
     (Agricultural burning (a type of prescribed burning) for 
growing crops or raising fowl or animals above 3,000 feet elevation 
should occur on a permissive-

[[Page 8896]]

burn day.) This is implemented. 4106.4.9.5.
     (Agricultural burning above 6,000 feet elevation should 
occur on permissive-burn days.) This is implemented. 4106.4.9.5.
     (Excessive Director's discretion in granting permission 
for agricultural burning on no-burn days in the event of imminent and 
substantial economic loss should be restricted by allowing only the 
acreage to be burned as limited by meteorological conditions and 
meeting the NAAQS.) Director's discretion for the exemption to burn in 
the case of imminent and substantial economic loss, which could occur 
on no-burn days, is restricted by limiting burning acreage to 200 acres 
per county per day, by requiring a forecast by the District that the 
NAAQS will be not be violated in downwind metropolitan areas, and by 
requiring that burning not be prohibited by a fire agency for safety 
reasons. 4103.4.3.3. This restricted exemption for imminent and 
substantial economic loss fulfills the requirements of enforceability 
and BACM.
     (BACM may require an overall approach of approving burns 
based on an evaluation of the airshed's capacity to disperse emissions 
on permissive-burn days so that cumulative emissions from all burns and 
PM-10 sources will not cause a violation of the NAAQS.) The District is 
required to allocate burning based on predicted meteorological 
conditions and whether the total tonnage to be emitted would allow the 
volume of smoke and other contaminants to impact smoke sensitive areas 
or create or contribute to an exceedance of the NAAQS. 4103.5.2 and 
4106.4.2. This measure for an overall approach to allocation of burning 
fulfills the requirements of BACM.
     (BACM may require burner training.) Burner training in a 
course approved by the APCO is required for prescribed burns over 10 
acres. 4106.4.9.1. This measure for burner training fulfills the 
requirements of BACM.
     (BACM may require the use of the best emission reduction 
efforts for prescribed burning and describing them in a smoke 
management plan.) The use of various best management practices is 
required. 4106.4.9. Extensive requirements for smoke management plans 
are described. 4106.5.2. These measures for best emission reduction 
efforts fulfill the requirements of BACM.
     (BACM may include second level smoke evaluation, which 
analyzes whether existing fires should be extinguished.) A land manager 
must coordinate daily with the District or CARB for multi-day burns to 
affirm that the burn project remains within the conditions specified in 
the smoke management plan. 4106.4.9.2. Surveillance and contingency 
plans are required for burns over 100 acres for actions to be taken if 
smoke impacts occur in smoke-sensitive areas. 4106.5.2.3. A related 
issue is whether to allow a naturally-ignited fire to continue in order 
to achieve a resource benefit. Requirements regulating this issue are 
provided. 4106.5.3. This measure fulfills the requirements of BACM.
    An exemption was added that could allow burning paper raisin trays 
on no-burn days. 4103.4.3.2. The District showed that this source 
category is de minimus, since it accounts for only 0.32% of the PM-10 
emissions during the two-month burning periods in each of years 1997-
1999. This exemption for paper raisin trays is not required to fulfill 
the requirements of BACM. Rules 4103 and 4106 are more stringent 
overall, therefore section 110(l) of the CAA is not violated.
    An exemption was added that could allow burning of confiscated 
contraband on no-burn days. The District argues that this PM-10 source 
is de minimus. Furthermore, the relevant law enforcement agency must 
submit a burn plan 15 days in advance to the APCO for approval. 
4103.6.2.2. Also import of contraband from outside the District for 
burning is prohibited. 4103.5.7.1. This exemption for confiscated 
contraband is not required to fulfill the requirements of BACM. Rules 
4103 and 4106 are more stringent overall, therefore section 110(l) of 
the CAA is not violated.
    The TSD has more information on our evaluation.

C. Public Comment and Final Action

    As authorized in section 110(k)(3) of the CAA, EPA is fully 
approving the submitted rules because we believe they fulfill all 
relevant requirements. We do not think anyone will object to this, so 
we are finalizing the approval without proposing it in advance. 
However, in the Proposed Rules section of this Federal Register, we are 
simultaneously proposing approval of the same submitted rules. If we 
receive adverse comments by March 29, 2002, we will publish a timely 
withdrawal in the Federal Register to notify the public that the direct 
final approval will not take effect and we will address the comments in 
a subsequent final action based on the proposal. If we do not receive 
timely adverse comments, the direct final approval will be effective 
without further notice on April 29, 2002. This will incorporate these 
rules into the federally-enforceable SIP.
    Please note that if EPA receives adverse comment on an amendment, 
paragraph, or section of this direct final rule and if that provision 
may be severed from the remainder of the rule, EPA may adopt as final 
those provisions of the rule that are not the subject of an adverse 
comment.

III. Background Information

Why Was This Rule Submitted?

    PM-10 harms human health and the environment. Section 110(a) of the 
CAA requires states to submit regulations that control PM-10 emissions. 
Table 2 lists some of the national milestones leading to the submittal 
of local agency PM-10 rules.

                Table 2.--PM-10 Nonattainment Milestones
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                     Date                                Event
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March 3, 1978................................  EPA promulgated a list of
                                                total suspended
                                                particulate (TSP)
                                                nonattainment areas
                                                under the Clean Air Act,
                                                as amended in 1977. 43
                                                FR 8964; 40 CFR 81.305.
July 1, 1987.................................  EPA replaced the TSP
                                                standards with new PM
                                                standards applying only
                                                up to 10 microns in
                                                diameter (PM-10). 52 FR
                                                24672.
November 15, 1990............................  Clean Air Act Amendments
                                                of 1990 were enacted,
                                                Pub. L. 101-549, 104
                                                Stat. 2399, codified at
                                                42 U.S.C. 7401-7671q.
November 15, 1990............................  PM-10 areas meeting the
                                                qualifications of
                                                section 107(d)(4)(B) of
                                                the CAA were designated
                                                nonattainment by
                                                operation of law and
                                                classified as moderate
                                                pursuant to section
                                                188(a). States are
                                                required by section
                                                110(a) to submit rules
                                                regulating PM-10
                                                emissions in order to
                                                achieve the attainment
                                                dates specified in
                                                section 188(c).
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[[Page 8897]]

IV. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 32111, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, 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 by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does 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 (64 
FR 43255, August 10, 1999). This action merely approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the CAA. 
This rule also is not subject to Executive Order 13045, ``Protection of 
Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. In this 
context, in the absence of a prior existing requirement for the State 
to use voluntary consensus standards (VCS), EPA has no authority to 
disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the CAA. Thus, the requirements of section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(15 U.S.C. 272 note) do not apply. This rule does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    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 action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    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 29, 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 31, 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)(288) to read 
as follows:


Sec. 52.220  Identification of plan.

* * * * *
    (c) * * *
    (288) New and amended regulations for the following APCDs were 
submitted on October 30, 2001, by the Governor's designee.
    (i) Incorporation by reference.
    (A) San Joaquin Valley Unified Air Pollution Control District.
    (1) Rules 4103 and 4106, adopted on June 21, 2001.
* * * * *

[FR Doc. 02-4526 Filed 2-26-02; 8:45 am]
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