[Federal Register Volume 74, Number 111 (Thursday, June 11, 2009)]
[Rules and Regulations]
[Pages 27716-27718]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-13483]



40 CFR Part 52

[EPA-R09-OAR-2009-0142; FRL-8902-1]

Revisions to the California State Implementation Plan, Antelope 
Valley Air Quality Management District and South Coast Air Quality 
Management District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.


SUMMARY: EPA is taking direct final action to approve revisions to the 
Antelope Valley Air Quality Management District (AVAQMD) and South 
Coast Air Quality Management District (SCAQMD) portions of the 
California State Implementation Plan (SIP). These revisions concern 
particulate matter (PM-10) emissions from open outdoor fires and from 
wood burning devices. We are approving local rules under the Clean Air 
Act as amended in 1990 (CAA or the Act).

DATES: This rule is effective on August 10, 2009 without further 
notice, unless EPA receives adverse comments by July 13, 2009. If we 
receive such comments, we will publish a timely withdrawal in the 
Federal Register to notify the public that this direct final rule will 
not take effect.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2009-0142, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the online instructions.
     E-mail: [email protected].
     Mail or deliver: Andrew Steckel (Air-4), U.S. 
Environmental Protection Agency Region IX, 75 Hawthorne Street, San 
Francisco, CA 94105.

Instructions: All comments will be included in the public docket 
without change and may be made available online at http://www.regulations.gov, including any personal information provided, 
unless the comment includes Confidential Business Information (CBI) or 
other information whose disclosure is restricted by statute. 
Information that you consider CBI or otherwise protected should be 
clearly identified as such and should not be submitted through http://www.regulations.gov or e-mail. Http://www.regulations.gov is an 
``anonymous access'' system, and EPA will not know your identity or 
contact information unless you provide it in the body of your comment. 
If you send e-mail directly to EPA, your e-mail address will be 
automatically captured and included as part of the public comment. If 
EPA cannot read your comment due to technical difficulties and cannot 
contact you for clarification, EPA may not be able to consider your 
    Docket: The index to the docket for this action is available 
electronically at http://www.regulations.gov and in hard copy at EPA 
Region IX, 75 Hawthorne Street, San Francisco, California. While all 
documents in the docket are listed in the index, some information may 
be publicly available only at the hard copy location (e.g., copyrighted 
material), and some may not be publicly available in either location 
(e.g., CBI). To inspect the hard copy materials, please schedule an 
appointment during normal business hours with the contact listed in the 

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 are the purposes of the submitted new rule and rule 
II. EPA's Evaluation and Action
    A. How is EPA evaluating the rules?
    B. Do the rules meet the evaluation criteria?
    C. EPA recommendation to further improve a rule
    D. 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 we are approving with the dates that the 
rules were amended by the local air agencies and submitted by the 
California Air Resources Board (CARB).

                                            Table 1--Submitted Rules
             Local agency               Rule No.         Rule title            Amended or adopted     Submitted
AVAQMD...............................        444  Open Outdoor Fires......  02/19/08 Amended.......     07/18/08
SCAQMD...............................        445  Wood Burning Devices....  03/07/08 Adopted.......     07/18/08

[[Page 27717]]

    On August 22, 2008, the submittal of AVAQMD Rule 444 and SCAQMD 
Rule 445 were determined 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?

    A version of AVAQMD Rule 444 was approved into the SIP on July 6, 
1982 (47 FR 29231).
    There is no version of SCAQMD Rule 445 in the SIP.

C. What are the purposes of the submitted new rule and rule revisions?

    Section 110(a) of the Clean Air Act (CAA) requires States to submit 
regulations that control volatile organic compounds, nitrogen oxides, 
particulate matter, and other air pollutants which harm human health 
and the environment. These rules were developed as part of local air 
districts' programs to control these pollutants.
    The purposes of the submitted AVAQMD Rule 444 revisions relative to 
the SIP rule are as follows:
     444(A): The rule is revised to apply the District Smoke 
Management Program to open burning while minimizing smoke impacts to 
the public.
     444(B)(13): An ``Approved Burn Plan'' is replaced with a 
``Smoke Management Plan.''
     444(C)(1): The requirement is added for all burn projects 
that are greater than 10 acres or that are estimated to produce more 
than one ton of particulate matter shall be conducted in accordance 
with the Smoke Management Program.
     444(C)(2): A list added of materials prohibited from open 
     444(C)(3): The permission is added to burn during adverse 
meteorological conditions in a case where there would be an imminent 
and substantial economic loss, providing a special permit is obtained 
from the District and not from a local fire agency.
     444(C)(4): The provision is added for a prescribed burn 
permittee to obtain from CARB up to 48 hours in advance of the burn day 
a permissive-burn, marginal-burn, or no-burn forecast.
     444(C)(6): The requirements are added for ignition, 
stacking, drying, and time of day for open burning with the exception 
of prescribed burning.
     444(C)(7): The list is added for burning applications that 
require a permit, such as (a) empty containers used for explosives, (b) 
right-of-way clearance for a public entity or utility, or (c) wood 
     444(C)(9): The requirement is added for a Smoke Management 
Plan for prescribed burning in (a) forest management, (b) range 
improvement, and (c) wildland vegetation management.
     444(D)(1): Exemptions are deleted for (a) open fires in 
agricultural operations at over 3,000 feet elevation and (b) open fires 
in agricultural burning at over 6,000 feet elevation.
    The primary purpose of SCAQMD Rule 445 is to reduce the emission of 
particulate matter from wood burning devices. The rule contains the 
following requirements:
     445(d)(1): No person shall install a woodburning device in 
a new development unless it is (A) an EPA Phase II-certified 
woodburning heater, (B) a pellet-fueled heater, (C) a masonry heater, 
(D) a woodburning device that meets emission standards in 40 CFR part 
60, subpart AAA, or (E) a dedicated gaseous-fueled fireplace.
     445(d)(3): No person shall burn fuel not intended for a 
woodburning device.
     445(d)(4): A commercial firewood facility shall sell 
seasoned wood only from July 1 through the end of February but may sell 
both seasoned and unseasoned wood the balance of the year.
     445(e): No person shall burn wood indoors or outdoors when 
a mandatory woodburning curtailment day is forecast.
     445(f): Devices exempt from requirements of the rule are 
(1) cookstoves, (2) devices with no gas infrastructure near new 
developments, (3) permanently-installed devices upon property sale, (4) 
properties registered as a historic site, and (5) manufactured 
     445(f)(6): Circumstances exempt from requirements of the 
rule are (A) sole source of heat, (B) low income household, (C) no gas 
infrastructure available, (D) elevation over 3,000 ft, and (E) 
ceremonial fires.
    EPA's technical support document (TSD) has more information about 
these rules.

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). SIP rules in serious PM-10 nonattainment areas must require for 
significant sources best available control measures (BACM), including 
best available control technology (BACT) (see section 189(b)). AVAQMD 
and SCAQMD regulate serious PM-10 nonattainment areas (see 40 CFR part 
81), so AVAQMD Rule 444 and SCAQMD Rule 445 must fulfill the 
requirements of BACM/BACT.
    Guidance and policy documents that we used to help evaluate rules 
consistently include the following:
     Requirements for Preparation, Adoption, and Submittal of 
Implementation Plans, U.S. EPA, 40 CFR part 51.
     PM-10 Guideline Document (EPA-452/R-93-008).
     Technical Information Document for Residential Wood 
Combustion Best Available Control Measures, (EPA-450/2-92-002).
     Minimum BACM/RACM Control Measures for Residential Wood 
Combustion Rules, EPA Region IX (September 16, 2008).

B. Do the rules meet the evaluation criteria?

    We believe that AVAQMD Rule 444 and SCAQMD Rule 445 are consistent 
with the relevant policy and guidance regarding enforceability, BACM/
BACT, and SIP relaxations and should be given full approval. The TSD 
has more information on our evaluation.

C. EPA recommendation to further improve a rule

    The TSD describes an additional rule revision that does not affect 
EPA's current action but is recommended for the next time the local 
agency modifies SCAQMD Rule 445.

D. 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 
approval, so we are finalizing it 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 July 13, 2009, 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 August 10, 2009. This will incorporate the 
rule into the Federally enforceable SIP.
    Please note that if EPA receives adverse comment on an amendment, 
paragraph, or section of this 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

[[Page 27718]]

are not the subject of an adverse comment.

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 approves a State rule 
implementing a Federal standard.
    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. 
    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 August 10, 2009. 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: April 3, 2009.
Laura Yoshii,
Acting Regional Administrator, Region IX.

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


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)(359)(i)(B)(2) and 
(D) to read as follows:

Sec.  52.220  Identification of plan.

* * * * *
    (c) * * *
    (359) * * *
    (i) * * *
    (B) * * *
    (2) Rule 445, ``Wood Burning Devices,'' adopted on March 7, 2008.
* * * * *
    (D) Antelope Valley Air Quality Management District.
    (1) Rule 444, ``Open Outdoor Fires,'' adopted on October 8, 1976 
and revised on February 19, 2008.
* * * * *
[FR Doc. E9-13483 Filed 6-10-09; 8:45 am]