[Federal Register Volume 80, Number 28 (Wednesday, February 11, 2015)]
[Proposed Rules]
[Pages 7555-7559]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-02700]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2015-0037; FRL-9922-87-Region 9]


Revisions to the California State Implementation Plan, Butte 
County Air Quality Management District

AGENCY: Environmental Protection Agency (EPA).

[[Page 7556]]


ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing a 
limited approval and limited disapproval of revisions to the Butte 
County Air Quality Management District's (BCAQMD) portion of the 
California State Implementation Plan (SIP). These revisions concern 
volatile organic compounds (VOCs), oxides of nitrogen (NOX), 
and particulate matter (PM) emissions from open burning. We are 
proposing action on a local rule that regulates these emission sources 
under the Clean Air Act (CAA or the Act). We are taking comments on 
this proposal and plan to follow with a final action.

DATES: Any comments must arrive by March 13, 2015.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2015-0037, by one of the following methods:
    1. Federal eRulemaking Portal: www.regulations.gov. Follow the on-
line instructions.
    2. Email: [email protected].
    3. Mail or deliver: Andrew Steckel (Air-4), U.S. Environmental 
Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 
94105-3901.
    Instructions: All comments will be included in the public docket 
without change and may be made available online at 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 www.regulations.gov or email. 
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 email directly to EPA, your email 
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 comment. Electronic files should avoid the use of 
special characters, any form of encryption, and be free of any defects 
or viruses.
    Docket: Generally, documents in the docket for this action are 
available electronically at 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 at www.regulations.gov, some 
information may be publicly available only at the hard copy location 
(e.g., copyrighted material, large maps), 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 FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Rynda Kay, EPA 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 revision?
II. EPA's Evaluation and Action
    A. How is EPA evaluating the rule?
    B. Does the rule meet the evaluation criteria?
    C. What are the deficiencies in the rule?
    D. EPA Recommendations to Further Improve the Rule
    E. Public Comment and Proposed Action
III. Statutory and Executive Order Reviews

I. The State's Submittal

A. What rule did the State submit?

    Table 1 lists the rule addressed by this proposal with the date 
that is was adopted by the local air agency and submitted by the 
California Air Resources Board (CARB).

                                             Table 1--Submitted Rule
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             Local agency                 Rule No.              Rule title               Amended      Submitted
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BCAQMD................................          300   Open Burning..................     02/24/11      09/21/12
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    On October 11, 2012, EPA determined that the submittal for BCAQMD 
Rule 300 met 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?

    There is no previous version of Rule 300 in the California SIP. 
BCAQMD previously adopted Rules 301-325 for open burning which were 
approved by the EPA for inclusion into the California SIP in 1987. 
BCAQMD later consolidated these rules locally into Rule 300. On 
February 24, 2011, BCAQMD updated the open burning requirements in Rule 
300 and CARB submitted the rule to us on October 21, 2012. This rule 
would supersede the BCAQMD rules currently in the California SIP as 
listed below.

                                         Table 2--Rules To Be Superseded
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                Rule                            Title                SIP approval date          FR Citation
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301................................  Prohibitions on Open         February 3, 1987......  52 FR 3226.
                                      Burning.
302................................  Exemptions to Rule 301.....  February 3, 1987......  52 FR 3226.
303................................  Burn Permits...............  February 3, 1987......  52 FR 3226.
304................................  Exemptions to Rule 303.....  February 3, 1987......  52 FR 3226.
306................................  Information Furnished by     February 3, 1987......  52 FR 3226.
                                      Permit Applicant.
307................................  Ignition Hours.............  February 3, 1987......  52 FR 3226.
308................................  Notice of Intent to Ignite.  February 3, 1987......  52 FR 3226.
309................................  Freedom from Debris and      February 3, 1987......  52 FR 3226.
                                      Moisture.
310................................  Arrangement of Agricultural  February 3, 1987......  52 FR 3226.
                                      and Wood Waste.
311................................  Drying Period..............  February 3, 1987......  52 FR 3226.
312................................  Wind Direction.............  February 3, 1987......  52 FR 3226.
313................................  Ignition Devices...........  February 3, 1987......  52 FR 3226.
314................................  Burning of Vines or Bushes   February 3, 1987......  52 FR 3226.
                                      Treated with Herbicides.

[[Page 7557]]

 
315................................  Rice Straw Burning.........  February 3, 1987......  52 FR 3226.
316................................  Field Crop Ignition........  February 3, 1987......  52 FR 3226.
317................................  Field Crops Harvested Prior  February 3, 1987......  52 FR 3226.
                                      to September 10.
318................................  Restriction of Burning       February 3, 1987......  52 FR 3226.
                                      During Poor Air Quality
                                      Conditions.
320................................  Certificate from Department  February 3, 1987......  52 FR 3226.
                                      of Fish and Game.
322................................  Special Permit.............  February 3, 1987......  52 FR 3226.
323................................  Range Improvement Burning..  February 3, 1987......  52 FR 3226.
324................................  Burning at Disposal Sites..  February 3, 1987......  52 FR 3226.
325................................  Exemption to Rule 324......  February 3, 1987......  52 FR 3226.
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C. What is the purpose of the submitted rule?

    Open burning emits PM, including particulate matter of ten microns 
or less (PM10) and particulate matter of 2.5 microns or less 
(PM2.5), directly, as well as VOCs and NOX, which 
are precursors to ozone and PM2.5. VOCs help produce ground-
level ozone and smog, which harm human health and the environment. 
NOX helps produce ground-level ozone, smog and particulate 
matter, which harm human health and the environment. PM contributes to 
effects that are harmful to human health and the environment, including 
premature mortality, aggravation of respiratory and cardiovascular 
disease, decreased lung function, visibility impairment, and damage to 
vegetation and ecosystems.
    Section 110(a) of the CAA requires States to submit regulations 
that control VOC, NOX, and PM emissions. Rule 300 is 
designed to minimize the impacts of smoke and other air pollutants 
generated by open burning. EPA's technical support document (TSD) has 
more information about this rule.

II. EPA's Evaluation and Action

A. How is EPA evaluating the rule?

    Generally, SIP rules must be enforceable (see CAA section 
110(a)(2)), must not interfere with applicable requirements concerning 
attainment and reasonable further progress or other CAA requirements 
(see CAA section 110(l)), and must not modify certain SIP control 
requirements in nonattainment areas without ensuring equivalent or 
greater emissions reductions (see CAA section 193).
    In PM2.5 nonattainment areas classified as moderate, the 
SIP must include Reasonably Available Control Measures (RACM) (see CAA 
section 189(a)(1)). BCAQMD regulates the Chico nonattainment area in 
Butte County, which is classified as moderate for the 2006 24-hour 
PM2.5 National Ambient Air Quality Standard (NAAQS) (40 CFR 
81.305). On September 10, 2013 (78 FR 55225), EPA issued a 
determination that the area had attained the 2006 24-hour 
PM2.5 standard based on complete, quality-assured, and 
certified ambient air monitoring data for the 2010-2012 monitoring 
period. Under EPA's Clean Data Policy and the regulations that embody 
it, 40 CFR 51.1004(c) (for PM2.5), an EPA determination that 
an area is attaining the relevant standard suspends the area's 
obligations to submit RACM for as long as the area continues to attain. 
Therefore, BCAQMD is not currently required to implement RACM for 
PM2.5. If the Chico nonattainment area is redesignated to 
attainment, RACM requirements for PM2.5 will no longer 
apply.
    BCAQMD also regulates the Chico ozone nonattainment area, which is 
classified as marginal under the 1997 and 2008 NAAQS.\1\ CAA sections 
172(c)(1) and 182 require implementation of RACM for moderate and above 
ozone areas, but not for marginal areas. Therefore, BCAQMD is not 
subject to RACM requirements with respect to ozone.
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    \1\ On December 3, 2012 (77 FR 71551), EPA determined that Chico 
nonattainment area had attained the 1997 8-hour ozone NAAQS by the 
applicable attainment date, and that it continued to attain the 1997 
standard based upon complete quality-assured data for 2009-2011.
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    Guidance and policy documents that we use to evaluate 
enforceability, revision/relaxation and rule stringency requirements 
for the applicable criteria pollutants include the following:
    1. ``State Implementation Plans; General Preamble for the 
Implementation of Title I of the Clean Air Act Amendments of 1990,'' 57 
FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992).
    2. ``Issues Relating to VOC Regulation Cutpoints, Deficiencies, and 
Deviations,'' EPA, May 25, 1988 (the Bluebook, revised January 11, 
1990).
    3. ``Guidance Document for Correcting Common VOC & Other Rule 
Deficiencies,'' EPA Region 9, August 21, 2001 (the Little Bluebook).

B. Does the rule meet the evaluation criteria?

    We believe this rule is largely consistent with the relevant policy 
and guidance regarding enforceability, stringency, and SIP relaxations. 
Rule provisions which do not meet the evaluation criteria are 
summarized below and discussed further in the TSD.

C. What are the deficiencies in the rule?

    BCAQMD Rule 300 contains two provisions which do not meet the 
evaluation criteria concerning enforceability and preclude full SIP 
approval. The provisions allow the Air Pollution Control Officer (APCO) 
to independently interpret the SIP without explicit and replicable 
procedures within the rule to tightly define how the discretion is 
exercised to assure equivalent emission reductions and without explicit 
approval of such discretion provisions by the EPA (Little Blue Book, 
page 17; see also 52 FR 45044, 45109 (November 24, 1987)).
    1. Sections 5.53 and 6.5 prohibit burning of rubbish or garbage 
except under variance by the hearing board as follows:
    ``5.53 Variance: Temporary exemption from DISTRICT rules or 
regulations granted to sources by the DISTRICT Hearing Board.
    6.5 It is unlawful to burn rubbish or garbage at dumps, landfills, 
or refuse disposal areas, or at any solid waste dump, whether public or 
private, or to burn garbage anywhere else in the County of Butte, 
except under variance.''
    2. Sections 8.24 allows the APCO to waive drying time requirements:
    ``8.2.4 The drying time requirements stated in Sections 8.2.1 and 
8.2.2 may be waived by the APCO for good cause at the discretion of the 
APCO. The adequacy of cause to waive the drying time requirements shall 
be decided on a case-by-case basis by the APCO.''

[[Page 7558]]

D. EPA Recommendations to Further Improve the Rule

    The TSD describes additional rule revisions that we recommend for 
the next time the local agency modifies the rule.

E. Public Comment and Proposed Action

    As authorized in sections 110(k)(3) and 301(a) of the Act, EPA is 
proposing a limited approval of the submitted rule to improve the SIP. 
If finalized, this action would incorporate the submitted rule into the 
SIP, including those provisions identified as deficient. This approval 
is limited because EPA is simultaneously proposing a limited 
disapproval of the rule under section 110(k)(3). If this disapproval is 
finalized, sanctions will be imposed under section 179 of the Act 
unless EPA approves subsequent SIP revisions that correct the rule 
deficiencies within 18 months of the disapproval. These sanctions would 
be imposed according to 40 CFR 52.31. A final disapproval would also 
trigger the 2-year clock for the federal implementation plan (FIP) 
requirement under section 110(c).
    Note that the submitted rule has been adopted by the BCAQMD, and 
EPA's final limited disapproval would not prevent the local agency from 
enforcing it. The limited disapproval also would not prevent any 
portion of the rule from being incorporated by reference into the 
federally enforceable SIP as discussed in a July 9, 1992 EPA memo 
titled ``Processing of State Implementation Plan (SIP) Submittals.''
    We will accept comments from the public on the proposed limited 
approval and limited disapproval for the next 30 days.

III. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

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

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Burden is defined at 5 CFR 1320.3(b).

C. 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 rule will not have a significant impact on a substantial 
number of small entities because SIP approvals or disapprovals under 
section 110 and subchapter I, part D of the Clean Air Act do not create 
any new requirements but simply approve or disapprove requirements that 
the State is already imposing. Therefore, because EPA's proposed 
limited approval/limited disapproval 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.
    Moreover, due to the nature of the Federal-State relationship under 
the Clean Air Act, preparation of flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of State action. The 
Clean Air Act 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).

D. Unfunded Mandates Reform Act

    Under sections 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 
the 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 limited approval/limited disapproval 
action proposed 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 proposes to approve and disapprove 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.

E. Executive Order 13132, Federalism

    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 proposes to approve or disapprove 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. Thus, the requirements of section 6 of the Executive Order do not 
apply to this rule.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 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.'' This proposed rule does not 
have tribal implications, as specified in Executive Order 13175. It 
will not

[[Page 7559]]

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. Thus, Executive Order 13175 does not 
apply to this rule.
    EPA specifically solicits additional comment on this proposed rule 
from tribal officials.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
rule is not subject to Executive Order 13045, because it proposes to 
approve a State rule implementing a Federal standard.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    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.

I. 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.
    The EPA believes that VCS are inapplicable to this action. Today's 
action does not require the public to perform activities conducive to 
the use of VCS.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Population

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA lacks the discretionary authority to address environmental 
justice in this rulemaking.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Volatile 
organic compounds.

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

    Dated: January 23, 2015.
Jared Blumenfeld,
Regional Administrator, Region IX.
[FR Doc. 2015-02700 Filed 2-10-15; 8:45 am]
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