[Federal Register Volume 68, Number 189 (Tuesday, September 30, 2003)]
[Rules and Regulations]
[Pages 56181-56184]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-24772]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 290-0419a; FRL-7563-6]


Revision 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). The revision 
concerns the emission of particulate matter (PM-10) from wood burning 
fireplaces and wood burning heaters. We are approving a local rule that 
regulates these emission sources under the Clean Air Act as amended in 
1990 (CAA or the Act).

DATES: This rule is effective on December 1, 2003 without further 
notice, unless EPA receives adverse comments by October 30, 2003. 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: Send comments to Andy Steckel, Rulemaking Office Chief (AIR-
4), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne 
Street, San Francisco, CA 94105, or e-mail to [email protected], 
or

[[Page 56182]]

submit comments at http://www.regulations.gov.
    You can inspect a copy 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 a copy 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.
    A copy of the rule may also be available via the Internet at http://www.arb.ca.gov/drdb/drdbltxt.htm. Please be advised that this is not 
an EPA website and may not contain the same version of the rule that 
was submitted to EPA.

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

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

Table of Contents

I. The State's Submittal
    A. What rule did the State submit?
    B. Are there other versions of this rule?
    C. What is the purpose of the submitted rule revisions?
II. EPA's Evaluation and Action
    A. How is EPA evaluating the rule?
    B. Does the rule meet the evaluation criteria?
    C. Public comment and final action
III. Statutory and Executive Order Reviews

I. The State's Submittal

A. What Rule Did the State Submit?

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

                                            Table 1.--Submitted Rule
----------------------------------------------------------------------------------------------------------------
         Local agency           Rule              Rule title                 Amended        Submitted
----------------------------------------------------------------------------------------------------------------
SJVUAPCD......................            4901  Wood Burning Fireplaces and Wood        07/17/03        08/19/03
                                                 Burning Heaters.
----------------------------------------------------------------------------------------------------------------

    On September 11, 2003, 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 This Rule?

    We approved SJVUAPCD Rule 4901, originally adopted on July 15, 
1993, into the SIP on February 7, 2002 (67 FR 5725).

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

    PM-10 harms human health and the environment. Section 110(a) of the 
CAA requires states to submit regulations that control PM-10 emissions.
    The purpose of revisions to Rule 4901 is to correct the 
deficiencies cited in the limited approval/limited disapproval of 
February 7, 2002.
    In our 2002 rulemaking, we concluded that the version of Rule 4901 
under our review at that time did not fulfill the requirement under 
section 189(b) of the CAA that applies to serious PM-10 nonattainment 
areas to implement best available control measures (BACM), including 
Best Available Control Technology (BACT), with respect to significant 
sources and source categories, such as residential wood combustion. In 
our 2002 rulemaking, we referred SJVUAPCD to our reference document, 
Technical Information Document for Residential Wood Combustion Best 
Available Control Measures, EPA-450/2-92-002 (September 1992), for our 
national policy on determining BACM for residential wood combustion and 
for a list of potential BACM measures that should be implemented unless 
the district demonstrates that they are not achievable given local 
conditions.
    In our 2002 rulemaking, we also indicated that, since the list of 
measures in our 1992 reference document was then over nine years old, 
SJVUAPCD should implement all those measures that are achievable as 
well as any other measures achievable in San Joaquin that have been 
developed in other serious PM-10 nonattainment areas. Finally, although 
we did not intend to identify the only measures necessary to fulfill 
BACM, we noted three items from the national policy that seemed likely 
to be achievable: (1) Requirements for mandatory episodic curtailment; 
(2) requirements for upgrading wood stoves and fireplaces to meet EPA-
certified phase II standards upon property sale or transfer; and (3) 
requirements for limiting the number of wood stoves and fireplaces per 
acre in new residential development and requirements for EPA-certified 
phase II standards on those being installed.

II. EPA's Evaluation and Action

A. How Is EPA Evaluating the Rule?

    Generally, SIP rules must be enforceable (see section 110(a) of the 
CAA), must require BACM, including BACT, for significant source 
categories or major sources in serious PM-10 nonattainment areas (see 
section 189(b)), and must not relax existing requirements (see sections 
110(l) and 193). SJVUAPCD is a serious PM-10 nonattainment area and 
must fulfill the requirements of BACM/BACT.
    The following guidance documents were used for reference:
    [sbull] Requirements for Preparation, Adoption, and Submittal of 
Implementation Plans, U.S. EPA, 40 CFR part 51.
    [sbull] PM-10 Guideline Document, EPA-452/R-93-008.
    [sbull] General Preamble Appendix C3--Available Residential Wood 
Combustion Control Measures, 57 FR 18072 (April 28, 1992).
    [sbull] Addendum to the General Preamble for the Implementation of 
Title I of the Clean Air Act Amendments of 1990, 59 FR 41998, 42011 
(August 16, 1994).
    [sbull] Technical Information Document for Residential Wood 
Combustion Best Available Control Measures, EPA-450/2-92-002 (September 
1992).

B. Does The Rule Meet the Evaluation Criteria?

    We believe that Rule 4901 is consistent with the relevant policy 
and guidance regarding enforceability and SIP relaxations, and fulfills 
the BACM/BACT requirement for this source category. The revised rule 
now contains the three specific types of requirements that we 
identified as likely to be achievable in our February 2002 final rule. 
Specifically, the rule is revised to require mandatory episodic 
curtailment for wood burning fireplaces and wood burning heaters when 
the Air Quality Index, as described in 40 CFR 58, exceeds 150. The Air 
Pollution Control Officer is required to notify the public of the 
mandatory curtailment. Second,

[[Page 56183]]

the rule is revised to require that any seller of real property assure 
that each wood burning heater is EPA Phase II certified or rendered 
permanently inoperable. Appropriate documentation must be provided by 
the seller to the buyer and the APCO. Third, the rule is revised to (a) 
prohibit the installation of a wood burning fireplace in a new 
residential development with a density greater than two dwelling units 
per acre, (b) to prohibit the installation of more than one wood 
burning fireplace or wood burning heater per dwelling unit in any new 
residential development with a density equal to or less than two 
dwelling units per acre, and (c) to prohibit the installation of more 
than two EPA Phase II certified wood burning heaters per acre in new 
residential development with a density equal to or greater than three 
dwelling units per acre.
    In addition, SJVUAPCD has performed a BACM demonstration for 
residential wood combustion as part of the San Joaquin Valley Plan to 
Attain Federal Standards for Particulate Matter 10 Microns and Smaller 
(2003 PM-10 Plan), which was adopted locally on June 19, 2003, and 
submitted by CARB to EPA by letter dated August 19, 2003. In appendix G 
of the 2003 PM-10 Plan, SJVUAPCD evaluated the list of potential BACM 
measures contained in EPA's 1992 national policy document for 
residential wood combustion and also considered measures that have been 
implemented in other parts of the country to determine what provisions 
in the previous version of Rule 4901 needed to be revised to comply 
with the BACM requirement. We have determined that this demonstration 
provides adequate support for our conclusion that the rule, as revised, 
complies with the BACM requirement for residential wood combustion in 
San Joaquin Valley and thereby corrects the deficiencies identified in 
our 2002 final rulemaking on the previous version of Rule 4901.

C. Public Comment and Final Action

    As authorized in section 110(k)(3) of the CAA, EPA is fully 
approving the submitted rule because we believe it fulfills 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 rule. If we 
receive adverse comments by October 30, 2003, 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 December 1, 2003. This will incorporate 
SJVUAPCD Rule 4901 into the federally-enforceable SIP superceding the 
version of Rule 4901 currently part of the applicable SIP and will 
terminate all sanction and FIP clocks associated with our previous 
action on this rule.

III. Statutory and Executive Order Reviews

    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 13211, 
``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 (Pub. L. 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 Clean 
Air Act. 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 Clean Air Act. 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 Clean Air Act. 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. section 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. 
section 804(2).
    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 December 1, 2003. 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).)

[[Page 56184]]

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Particulate matter, Reporting 
and recordkeeping requirements.

    Authority: 42 U.S.C. 7401 et seq.


    Dated: September 18, 2003.
Deborah Jordon,
Acting Regional Administrator, Region IX.

0
Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for Part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart F--California

0
2. Section 52.220 is amended by adding paragraph (c)(317) to read as 
follows:


Sec.  52.220  Identification of plan.

* * * * *
    (c) * * *
    (317) Amended regulation for the following APCD was submitted on 
August 19, 2003, 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 and amended on July 17, 
2003.
* * * * *
[FR Doc. 03-24772 Filed 9-29-03; 8:45 am]
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