[Federal Register Volume 69, Number 7 (Monday, January 12, 2004)]
[Rules and Regulations]
[Pages 1682-1684]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-556]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 289-0418a; FRL-7600-9]


Revision to the California State Implementation Plan, Monterey 
Bay 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 revisions to the 
Monterey Bay Unified Air Pollution Control District (MBUAPCD) portion 
of the California State Implementation Plan (SIP). The revisions 
concern the emission of particulate matter (PM-10) from open outdoor 
burning. We are approving a local rule and removing rescinded local 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 March 12, 2004 without further notice, 
unless EPA receives adverse comments by February 11, 2004. 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 submit comments at http://www.regulations.gov.
    You can inspect a copy of the submitted rule 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 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.
Monterey Bay Unified Air Pollution Control District, 24580 Silver Cloud 
Court, Monterey, CA 93940.

    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 Web site 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 rules did the State submit?
    B. Are there other versions of these rules?
    C. What is the purpose of the submitted SIP revision?
II. EPA's Evaluation and Action
    A. How is EPA evaluating the SIP revision?
    B. Does the SIP revision meet the evaluation criteria?
    C. Public comment and final action
III. Statutory and Executive Order Reviews

I. The State's Submittal

A. What Rules Did the State Submit?

    Table 1 lists the rules and dates that MBUAPCD adopted or rescinded 
the local rules and when they were submitted to EPA by the California 
Air Resources Board (CARB).

[[Page 1683]]



                                            Table 1.--Submitted Rules
----------------------------------------------------------------------------------------------------------------
                                      Rule              Rule title          Adopted or rescinded    Submitted
----------------------------------------------------------------------------------------------------------------
MBUAPCD.............................          438  Open Outdoor Fires.....  04/16/03, Adopted......     08/11/03
MBUAPCD.............................          407  Open Outdoor Fires.....  04/16/03, Rescinded....     08/11/03
MBUAPCD.............................          409  Burning of Agricultural  04/16/03, Rescinded....     08/11/03
                                                    Wastes.
MBUAPCD.............................          410  Range Improvement        04/16/03, Rescinded....     08/11/03
                                                    Burning.
MBUAPCD.............................          411  Forest Management        04/16/03, Rescinded....     08/11/03
                                                    Burning.
MBUAPCD.............................          422  Burning of Wood Wastes   04/16/03, Rescinded....     08/11/03
                                                    from Developments.
MBUAPCD.............................          432  Wildland Vegetation      04/16/03, Rescinded....     08/11/03
                                                    Management Burning.
----------------------------------------------------------------------------------------------------------------

    On October 10, 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 these Rules?

    We approved Rule 407, which was submitted on October 27, 1983, into 
the SIP on May 3, 1984 (49 FR 18830). We approved Rules 409, 410, 411, 
and 422, which were submitted on February 6, 1985, into the SIP on July 
13, 1987 (52 FR 26148). Rule 432 was never approved into the SIP and 
therefore EPA does not need to take any action to remove it from the 
SIP.

C. What Is the Purpose of the Submitted SIP Revision?

    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 the submitted SIP revision is described below:
    [sbull] To incorporate the requirements of the State ``Air Toxic 
Control Measure to Reduce Emissions of Toxic Air Contaminants from 
Outdoor Residential Waste Burning.''
    [sbull] To incorporate the California Code of Regulations, title 
17, requirements for prescribed burning and the District's adopted 
Smoke Management Program.
    [sbull] To reorganize the District's existing burn rules into one 
rule for clarity and ease of understanding.
    The specific amendments that MBUAPCD made after rescinding several 
rules and combining their content into Rule 438 are as follows:
    [sbull] Removed the exemption for forest management burning, range 
improvement, and wildland vegetation management burning on no-burn 
days.
    [sbull] Added an exemption for test burns on no-burn days under 
specific conditions.
    [sbull] Added a requirement that prescribed burn projects be 
registered with the District annually or seasonally.
    [sbull] Added a requirement for submission by the burner of a Smoke 
Management Plan for prescribed burn projects.
    [sbull] Added a requirement that prescribed burns may only be 
conducted after the burner has received authorization from the District 
within 24 hours of the ignition.
    [sbull] Added a restriction that no prescribed burning is allowed 
on days when poor air quality has been predicted.
    [sbull] Added a requirement for direct public notification of 
sensitive downwind receptors for prescribed burn projects.
    [sbull] Added a restriction that the total emissions from all 
prescribed burn projects on each day in the air basin remain within the 
adopted Air Quality Maintenance Plan VOC and NOX emission inventories 
during the ozone season (May through October).
    [sbull] Added a provision that the Air Pollution Control Officer 
may ease the restriction on total emissions under certain limited 
conditions.
    [sbull] Clarified which is the ``designated agency'' to issue 
agricultural waste burning permits.
    The TSD has more information about these rules.

II. EPA's Evaluation and Action

A. How Is EPA Evaluating the SIP Revision?

    Generally, SIP rules must be enforceable (see section 110(a) of the 
CAA), must require Best Available Control Measures (BACM) including, 
Best Available Control Technology (BACT), for significant source 
categories or major sources in serious PM-10 nonattainment areas (see 
section 189(b)), must require Reasonably Available Control Measures 
(RACM) including, Reasonably Available Control Technology (RACT), for 
significant source categories or major sources in moderate PM-10 
nonattainment areas (see section 189(a)), and must not relax existing 
requirements (see sections 110(l) and 193). MBUAPCD is a PM-10 
attainment area and need not fulfill the requirements of BACM/BACT or 
RACM/RACT.
    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] 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).

B. Does the SIP Revision Meet the Evaluation Criteria?

    We believe that Rule 438 is consistent with the relevant policy and 
guidance regarding enforceability and SIP relaxations. 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 SIP revision 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 SIP revision. 
If we receive adverse comments by February 11, 2004, 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 March 12, 2004. This will 
incorporate MBUAPCD Rule 438 into the federally-enforceable SIP and 
remove MBUAPCD Rules 407, 409, 410, 411, and 422 from the 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.

[[Page 1684]]

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 (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 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. 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 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 March 12, 2004. 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.

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

    Dated: December 2, 2003.
Wayne Nastri,
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 paragraphs (c)(148)(iii)(B), 
(159)(iii)(F), and (320) to read as follows:


Sec.  52.220  Identification of plan.

* * * * *
    (c) * * *
    (148) * * *
    (iii) * * *
    (B) Previously approved on May 3, 1984 in (c)(148)(iii)(A) of this 
section and now deleted without replacement Rule 407.
* * * * *
    (159) * * *
    (iii) * * *
    (F) Previously approved on July 13, 1987 in (c)(159)(iii)(A) of 
this section and now deleted without replacement Rules 409, 410, 411, 
and 422.
* * * * *
    (320) New and amended regulations for the following APCDs were 
submitted on August 11, 2003, by the Governor's designee.
    (i) Incorporation by reference.
    (A) Monterey Bay Unified Air Pollution Control District.
    (1) Rule 438, adopted on April 16, 2003.
* * * * *
[FR Doc. 04-556 Filed 1-9-04; 8:45 am]
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