[Federal Register Volume 81, Number 194 (Thursday, October 6, 2016)]
[Rules and Regulations]
[Pages 69393-69396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-24081]



[[Page 69393]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2015-0570; FRL-9951-67-Region 9]


Approval of California Air Plan Revisions, San Joaquin Valley 
Unified Air Pollution Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking 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 emissions of volatile 
organic compounds (VOCs), oxides of nitrogen (NOX), and 
particulate matter (PM) from wood burning devices. We are approving a 
local rule that regulates these emission sources under the Clean Air 
Act (CAA or the Act).

DATES: This rule will be effective on November 7, 2016.

ADDRESSES: The EPA has established docket number EPA-R09-OAR-2015-0570 
for this action. Generally, documents in the docket for this action are 
available electronically at http://www.regulations.gov or in hard copy 
at EPA Region IX, 75 Hawthorne Street, San Francisco, California 94105-
3901. While all documents in the docket are listed at http://www.regulations.gov, some information may be publicly available only at 
the hard copy location (e.g., copyrighted material, large maps, multi-
volume reports), and some may not be available in either location 
(e.g., confidential business information (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 the EPA.

Table of Contents

I. Proposed Action
II. Public Comments and EPA Responses
III. EPA Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

I. Proposed Action

    On September 30, 2015 in 80 FR 58637, the EPA proposed to approve 
the following rule into the California SIP.

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           Local agency                 Rule No.             Rule title             Amended         Submitted
----------------------------------------------------------------------------------------------------------------
SJVUAPCD..........................            4901   Wood Burning Fireplaces          09/18/14         11/06/14
                                                      and Wood Burning Heaters.
----------------------------------------------------------------------------------------------------------------

    We proposed to approve this rule because we determined that it 
complied with the relevant CAA requirements. Our proposed action 
contains more information on the rule and our evaluation.

II. Public Comments and EPA Responses

    The EPA's proposed action provided a 30-day public comment period. 
During this period, which ended on October 30, 2015, we received 
comments from Adenike Adeyeye, Earthjustice.\1\ Summaries of the 
comments are provided below, along with our responses to those 
comments.
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    \1\ Letter and email from Adenike Adeyeye, Earthjustice, dated 
and received October 30, 2015.
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    Comment #1: Earthjustice commented that, ``[t]he previous iteration 
of Rule 4901, amended in 2008, banned the use of [all] wood burning 
devices when the forecasted PM2.5 concentration exceeded 30 
[micrograms per cubic meter ([micro]g/m\3\)]'', while the submitted 
rule allows use of registered devices \2\ until forecasted 
PM2.5 concentrations reach 65 [micro]g/m\3\. Earthjustice 
argued that this revision, which allows registered devices to burn and 
emit PM equal to or less than 2.5 microns in diameter 
(PM2.5) while the San Joaquin Valley Air Basin is violating 
the 2006 24-hour PM2.5 standard, constitutes a relaxation of 
restrictions on burning for registered wood burning devices that 
violates CAA section 110(l). Earthjustice noted that SJVUAPCD justified 
this relaxation by predicting drastic emission reductions from 
replacement of existing wood burning devices, but asserted that 
SJVUAPCD's claim that the relaxation is irrelevant because the 
associated emissions are low is incorrect.
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    \2\ Submitted Rule 4901, Paragraph 5.7.1 sets eligibility 
requirements for District registration of wood burning heaters that 
may be used during a Level One Episodic Wood Burning Curtailment. 
The heaters must be either exempt from EPA certification 
requirements or EPA-certified as specified under the New Source 
Performance Standard (NSPS) for New Residential Wood Heaters (40 CFR 
part 60, subpart AAA) in effect at the time of purchase or 
installation.
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    Response #1: We disagree with the commenter's claim that the rule 
revisions are a relaxation that violates CAA section 110(l). As an 
initial matter, section 110(l) does not prohibit all relaxations of 
individual SIP-approved rule provisions. Rather, section 110(l) 
prohibits the EPA from approving a SIP revision that ``would interfere 
with any applicable requirement concerning attainment and reasonable 
further progress (as defined in [CAA section 171]), or any other 
applicable requirement of [the CAA].'' The EPA's conclusion that Rule 
4901 will not interfere with attainment is not based on low emissions 
associated with the revision of the SIP to allow registered devices to 
be used when forecasted concentrations are between 30 and 65 [micro]g/
m\3\, as the commenter asserts. The commenter focuses only on this 
provision of Rule 4901 and ignores the associated requirement that 
unregistered devices can no longer be used when forecasted 
concentrations are above 20 [micro]g/m\3\. Contrary to the commenter's 
suggestion, the EPA is not required under section 110(l) to evaluate 
each individual revision to Rule 4901 separately from all other 
revisions to Rule 4901. Accordingly, the EPA's analysis of Rule 4901 
considers both provisions in conjunction.
    As discussed in the EPA's Technical Support Document supporting our 
proposed approval of Rule 4901 (``Rule 4901 TSD''),\3\ SJVUAPCD 
estimates that reducing the PM2.5 forecast level at which 
unregistered devices are banned from 30 to 20 [micro]g/m\3\ decreases 
average wood burning season emissions by 3.33 tons per day (tpd) 
PM2.5, while allowing registered devices to burn when 
forecasted concentrations are between 30-65 [micro]g/m\3\ increases 
emissions by 0.065 tpd PM2.5. Combining these changes yields 
an overall estimated emission reduction of 3.27 tpd PM2.5 
when compared to the SIP-approved rule.\4\ Therefore, projected 
increases in

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emissions from registered devices are more than offset by the emission 
reductions achieved by the enhanced curtailment criteria for 
unregistered stoves. Contrary to the commenter's assertion, this 
evaluation does not rely on expected additional change-outs to cleaner 
burning devices, which would lead to additional emission reductions 
beyond 3.27 tpd PM2.5. Thus, the revisions to Rule 4901 are 
expected to result in significant emission reductions overall compared 
to the current SIP-approved version of the rule, which will help to 
expedite attainment of the PM2.5 NAAQS in the San Joaquin 
Valley (SJV). Accordingly, we find that the revisions to Rule 4901 are 
consistent with the development of an overall plan for attaining the 
NAAQS in the SJV.
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    \3\ See Technical Support Document for the EPA's Proposed 
Rulemaking for the California State Implementation Plan, San Joaquin 
Valley Unified Air Pollution Control District Rule 4901, Wood 
Burning Fireplaces and Wood Burning Heaters, August 2015, (``Rule 
4901 TSD'') page 8.
    \4\ As noted in the Rule 4901 TSD, the SIP-approved version of 
Rule 4901 contains a contingency provision which would have come 
into effect if the EPA had found that the SJV had failed to attain 
the 1997 PM2.5 National Ambient Air Quality Standards 
(NAAQS or ``standards'') by the applicable deadline. That provision 
would have reduced the mandatory curtailment PM2.5 
forecast threshold from 30 to 20 [mu]g/m\3\ for all wood burning 
devices. However, we have not made a finding that the SJV failed to 
attain the 1997 PM2.5 NAAQS by the applicable deadline, 
so the contingency provision has not been triggered. Moreover, we 
have withdrawn our approval of and disapproved the State's 2013 
Contingency Measure Submittal, which relied, among other things on 
the contingency provision in Rule 4901. 81 FR 29498 (May 12, 2016). 
Accordingly, we believe the appropriate point of comparison for 
purposes of 110(l) is the SIP-approved rule without the contingency 
measure (i.e., a mandatory curtailment PM2.5 forecast 
threshold of 30 [mu]g/m\3\ for all wood burning devices).
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    With regard to other applicable requirements of the CAA, for the 
reasons explained in our proposal, TSD and in response to comments 
below, we also find that Rule 4901 implements reasonably available 
control measures (RACM) and best available control measures (BACM) for 
PM2.5 emissions from wood burning devices in the SJV. 
Therefore, we conclude that the revisions to Rule 4901 will not 
interfere with any applicable requirement concerning attainment and 
reasonable further progress or any other applicable requirement of the 
CAA.
    Comment #2: Earthjustice commented that the Bay Area Air Quality 
Management District (BAAQMD), South Coast Air Quality Management 
District (SCAQMD), and Sacramento Metropolitan Air Quality Management 
District (SMAQMD) include more stringent curtailment requirements as 
they apply to registered devices. In particular, Earthjustice noted 
that SCAQMD and BAAQMD ban the use of all wood burning devices when the 
forecasted PM2.5 concentration exceeds 30 [micro]g/m\3\ and 
35 [micro]g/m\3\, respectively. SMAQMD limits burning using a tiered 
system, banning the use of registered devices when the forecasted 
PM2.5 concentration exceeds 35 [micro]g/m\3\. As a result, 
Earthjustice argued that ``[t]he changes to rule 4901 do not meet the 
requirements for reasonably available control measures (RACM) or BACM 
for registered wood burning devices.''
    Response #2: The commenter appears to assume that we must evaluate 
RACM and BACM for registered (clean burning) devices separately from 
RACM and BACM for unregistered devices. We do not agree with this 
premise. Nothing in the CAA or EPA's implementing regulations requires 
us to consider the stringency of requirements for registered devices 
separately from the stringency of requirements for unregistered 
devices. Furthermore, the purpose of the two-tiered curtailment system 
is to encourage replacement of unregistered devices with registered 
devices, so it is reasonable to consider the requirements applicable to 
registered and unregistered devices together.\5\ As explained above, 
SJVUAPCD estimates that the emissions from registered clean burning 
devices when concentrations are above 30 [micro]g/m\3\ will be 
overwhelmingly compensated for by decreased emissions from unregistered 
devices when concentrations are between 20-30 [micro]g/m\3\, making the 
Rule 4901 curtailment program at least as stringent as or more 
stringent than these and other analogous curtailment programs.\6\ The 
commenter has not provided information that contradicts the District's 
assessment in this regard.
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    \5\ For example, on page 45 of Final Staff Report for Amendments 
to the District's Residential Wood Burning Program, SJVUAPCD, dated 
September 18, 2014, SJVUAPCD explains that 29% of survey respondents 
indicated that they would replace their current wood burning 
fireplace or wood burning heater with a cleaner device if allowed to 
burn more often.
    \6\ See Rule 4901 TSD, page 11.
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    Comment #3: Earthjustice asserted that the controls on the 
installation of wood burning devices in new developments are less 
stringent than those used by SCAQMD and BAAQMD. In particular, the 
commenter noted that SCAQMD Rule 445 prohibits the installation of any 
wood burning device in new development, except where there is no 
existing infrastructure for natural gas within 150 feet of the property 
line or those 3,000 feet above sea level.\7\ In addition, the commenter 
stated that ``BAAQMD recently became the first air district in the 
nation to ban the installation of wood burning devices in any new 
development.''
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    \7\ SCAQMD, Rule 445: Wood Burning Devices, Section f(2) 
(amended 5/3/13).
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    Response #3: Rule 4901, Paragraph 5.3 limits the number of wood 
burning devices that can be installed in new residential developments. 
In residential developments with a density greater than two dwellings 
per acre, no wood burning fireplaces are allowed and a maximum of two 
certified wood burning heaters per acre are allowed. In developments 
with a density less than or equal to two dwellings per acre, one wood 
burning fireplace or certified wood burning heater is allowed per 
dwelling. As discussed in Rule 4901 TSD at page 12, ``SJVUAPCD states 
that Rule 4901 is more stringent than SCAQMD Rule 445 as it does not 
exempt any homes at any elevation.\8\ Given the lack of any exemptions 
in Rule 4901, it is reasonable to conclude that Rule 4901 is at least 
as stringent as SCAQMD Rule 445.'' The commenters have not provided new 
information to contradict this conclusion.
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    \8\ See Rule 4901 Staff Report, p. 30.
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    The ban on wood burning devices in new construction in BAAQMD 
Regulation 6-3 was enacted on October 21, 2015, more than a year after 
SJVUAPCD had amended Rule 4901 on September 18, 2014, and does not 
become effective until November 1, 2016.\9\ Given that no other State 
or district had enacted a complete ban at the time that SJVUAPCD was 
revising Rule 4901 and conducting its BACM analysis and no such ban has 
yet become effective in any State or district, we do not believe it is 
reasonable to disapprove Rule 4901 for failing to include such a ban. 
However, we recommend that SJVUAPCD evaluate the feasibility of such a 
ban in the SJV and revise Rule 4901 to include such a ban, if it is 
found to be feasible.
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    \9\ BAAQMD, Regulation 6: Particulate Matter and Visible 
Emissions, Rule 3: Wood Burning Devices, Section 
6[hyphen]3[hyphen]306 (amended 10/21/15).
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    Comment #4: Earthjustice commented that Rule 4901's incentive of 
fewer no-burn days for registered devices is inappropriate and 
unnecessarily adds air pollution. Earthjustice argued that SJVUAPCD's 
well-funded financial incentives program is sufficient to motivate a 
switch to registered wood burning devices and allowing these devices to 
burn additional days is an unnecessary additional incentive. Further, 
Earthjustice suggested, if the District offers an additional 
``incentive of fewer no burn days, the limit for registered devices 
should be 30 [micro]g/m\3\, not 65 [micro]g/m\3\.''
    Response #4: The survey conducted for SJVUAPCD found that 24 
percent (%) of residents with non-EPA certified wood burning heaters 
and wood burning fireplaces would transition to cleaner burning devices 
if provided a discount of up to 50% toward the cost of a new wood 
burning device and 29% of residents stated they would transition to 
cleaner devices if allowed to burn

[[Page 69395]]

more often.\10\ It seems reasonable to conclude that using both 
strategies in combination should encourage at least some additional 
change-outs over just providing incentive funding. In reviewing SIP 
submissions, the EPA's role is to approve state choices, provided that 
they meet minimum criteria set by the CAA and any applicable EPA 
regulations and are reasonable. We conclude that allowing clean burning 
devices to burn when the PM2.5 concentration is forecasted 
to be between 20-65 [mu]g/m\3\ is reasonable and, as described in 
Response #1 and #2 above, complies with relevant CAA requirements.
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    \10\ See Staff Report, Appendix B, p. B-13.
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    Comment #5: Earthjustice argued that the District should be 
required to incorporate the EPA's recommendations into Rule 4901. In 
particular, Earthjustice asserted that the District should: (1) Not 
subsidize the transition to wood burning heaters, which are generally 
used more frequently than gas fireplaces; (2) require retrofit of 
existing wood burning fireplaces during major renovations; and (3) 
require homes where wood burning devices are the sole source of heat to 
meet current EPA certification requirements. Earthjustice noted that 
requirements similar to (2) and (3) were recently added to the BAAQMD 
rule.
    Response #5: While we agree that SJVUAPCD should consider 
eliminating subsidies for transition from fireplaces to wood burning 
heaters, details regarding the implementation of SJVUAPCD's monetary 
incentive program have not been submitted into the SIP and are outside 
of the scope of this rulemaking. Regarding retrofits of wood burning 
fireplaces during major renovations, at the time of Rule 4901 adoption 
and proposal, Laguna Beach, California was the only area we were aware 
of that required fireplace retrofits upon major home renovation. While 
we recommended SJVUAPCD examine the feasibility of including this 
provision, its existence in one small southern California city is not a 
sufficient basis for determining that it is feasible in the much larger 
and more diverse SJV. As noted by the commenter, on October 21, 2015, 
BAAQMD adopted a requirement that a gas-fueled, electric, or EPA-
certified device be installed upon remodel of a fireplace or chimney 
where total costs exceed $15,000 and a local building permit is 
required. Given that no other State or district had adopted a similar 
provision at the time that Rule 4901 was revised, we do not believe it 
is reasonable to disapprove Rule 4901 for failing to include such a 
provision. However, we continue to recommend that SJVUAPCD consider the 
feasibility of implementing such a provision in the SJV, particularly 
in light of the newly-enacted BAAQMD provision. Similarly, we do not 
believe it is reasonable to disapprove Rule 4901 for failing to require 
sole-source households to meet EPA certification requirements, as no 
other State or district had adopted a similar provision at the time 
that Rule 4901 was amended.
    In the Rule 4901 TSD, Attachment 1,\11\ we compared Rule 4901 to 
analogous district rules, and found SJVUAPCD implements a collection of 
measures as stringent as or more stringent than these rules. We agree 
that SJVUAPCD should consider our recommendations for future rule 
revisions, but they do not affect our conclusion that Rule 4901, as 
amended, strengthens the SIP, decreases PM2.5 emissions, and 
currently implements BACM/Best Available Control Technology (BACT) for 
wood burning devices. Additionally, the rule fulfills the relevant CAA 
section 110 and Title I Part D requirements. Therefore, we conclude 
that our recommendations for rule revisions do not provide a basis for 
rule disapproval.
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    \11\ See Rule 4901 TSD, Attachment 1. Major Components of 
Various Residential Wood Burning Rules.xlsx.
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III. EPA Action

    No comments were submitted that change our assessment of the rule 
as described in our proposed action. Therefore, as authorized in 
section 110(k)(3) of the Act, the EPA is fully approving this rule into 
the California SIP.

IV. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, the EPA is finalizing the incorporation by reference of the 
SJVUAPCD rule described in the amendments to 40 CFR part 52 set forth 
below. The EPA has made, and will continue to make, these documents 
available electronically through www.regulations.gov and in hard copy 
at U.S. Environmental Protection Agency Region IX (AIR-4), 75 Hawthorne 
Street, San Francisco, CA, 94105-3901.

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, the EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     does not provide the EPA with the discretionary authority 
to address, as appropriate, disproportionate human health or 
environmental effects, using practicable and legally permissible 
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where the EPA or an Indian tribe 
has demonstrated that a tribe has jurisdiction. In those areas of 
Indian country, the rule does not have tribal implications and will not 
impose substantial direct costs on tribal governments or preempt tribal 
law as specified by Executive Order 13175 (65 FR 67249, November 9, 
2000).

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    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. The EPA will submit a report containing this action 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 December 5, 2016. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action 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, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Volatile 
organic compounds.

    Dated: August 15, 2016.
Alexis Strauss,
Acting Regional Administrator, Region IX.

    Part 52, Chapter I, Title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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)(364)(i)(A)(4) and 
(c)(457)(i)(H) to read as follows:


Sec.  52.220  Identification of plan--in part.

* * * * *
    (c) * * *
    (364) * * *
    (i) * * *
    (A) * * *
    (4) Previously approved on October 11, 2009 in paragraph 
(c)(364)(i)(A)(2) of this section and now deleted with replacement in 
paragraph (c)(457)(i)(H)(1), Rule 4901, ``Wood Burning Fireplaces and 
Wood Burning Heaters,'' amended on October 16, 2008.
* * * * *
    (457) * * *
    (i) * * *
    (H) San Joaquin Valley Unified Air Pollution Control District.
    (1) Rule 4901, ``Wood Burning Fireplaces and Wood Burning 
Heaters,'' amended on September 18, 2014.
* * * * *
[FR Doc. 2016-24081 Filed 10-5-16; 8:45 am]
 BILLING CODE 6560-50-P