[Federal Register Volume 64, Number 69 (Monday, April 12, 1999)]
[Proposed Rules]
[Pages 17589-17592]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-8949]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA 013-0139b; FRL-6322-3]
Approval and Promulgation of Implementation Plans; California
State Implementation Plan, San Joaquin Valley Unified Air Pollution
Control District; South Coast Air Quality Management District
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing a limited approval and limited disapproval of
revisions to the California State Implementation Plan (SIP) which
concern the control of particulate matter (PM) from open burning. The
intended effect of proposing limited approval and limited disapproval
of these rules is to regulate PM emissions in accordance with the
requirements of the Clean Air Act, as amended in 1990 (CAA or the Act).
EPA's final action on this proposed rule will incorporate these rules
into the federally approved SIP for San Joaquin Valley Unified Air
Pollution Control District (SJVUAPCD) and South Coast Air Quality
Management District (SCAQMD). EPA has evaluated SJVUAPCD Rule 4103 and
SCAQMD Rule 444 and is proposing a simultaneous limited approval and
limited disapproval under provisions of the CAA regarding EPA action on
SIP submittals and general rulemaking authority. These revisions, while
strengthening the SIP or maintaining the SIP's control strategy, do not
fully meet the CAA provisions regarding plan submissions and
requirements for nonattainment areas. In this action, EPA also is
proposing full approval of SCAQMD Rule 208 for incorporation into the
California SIP. EPA has evaluated this rule and determined that it is
consistent with the CAA and EPA regulations and will maintain the SIP's
control strategy.
DATES: Comments must be received on or before May 12, 1999.
ADDRESSES: Comments may be mailed to: Andrew Steckel, Rulemaking Office
AIR-4, Air Division, U.S. Environmental Protection Agency, Region IX,
75 Hawthorne Street, San Francisco, CA 94105-3901.
Copies of the rules and EPA's evaluation report of the rules are
available for public inspection at EPA's Region IX office during normal
business hours. Copies of the submitted rules are also available for
inspection at the following locations:
Environmental Protection Agency, Air Docket (6102), 401 ``M'' Street,
S.W., Washington, D.C. 20460
California Air Resources Board, Stationary Source Division, Rule
Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95812
San Joaquin Valley Unified Air Pollution Control District, 1990 East
Gettysburg Street, Fresno, CA 93726
South Coast Air Quality Management District, 21865 East Copley Drive,
Diamond Bar, CA 91765
FOR FURTHER INFORMATION CONTACT: Al Petersen, Rulemaking Office, AIR-4,
Air Division, U.S. Environmental Protection Agency, Region IX, 75
Hawthorne Street, San Francisco, CA 94105-3901, Telephone: (415) 744-
1135.
SUPPLEMENTARY INFORMATION:
I. Applicability
The rules being proposed for limited approval and limited
disapproval into the California SIP are SJVUAPCD Rule 4103, Open
Burning (amended December 16, 1993) and SCAQMD Rule 444, Open Fires
(amended October 2, 1987). SJVUAPCD Rule 4103 was submitted by the
State of California to EPA on May 24, 1994. SCAQMD Rule 444 was
submitted by the State of California to EPA on March 23, 1988.
The rule being for proposed for full approval into the California
SIP is SCAQMD Rule 208, Permit for Open
[[Page 17590]]
Burning (amended January 5, 1990). SCAQMD Rule 208 was submitted by the
State of California to EPA on May 13, 1991.
II. Background
On March 3, 1978, EPA promulgated a list of total suspended
particulate (TSP) nonattainment areas under the provisions of the 1977
Clean Air Act (1977 CAA or pre-amended Act), that included the San
Joaquin Valley Planning Area and South Coast Air Basin (43 FR 8964; 40
CFR 81.305). On July 1, 1987 (52 FR 24672) EPA replaced the TSP
standards with new PM standards applying only to PM up to 10 microns in
diameter (PM-10).1 On November 15, 1990, amendments to the
1977 CAA were enacted. Public Law 101-549, 104 Stat. 2399, codified at
42 U.S.C. 7401-7671q. On the date of enactment of the 1990 CAA
Amendments, PM-10 areas meeting the qualifications of section
107(d)(4)(B) of the Act were designated nonattainment by operation of
law and classified as moderate or serious pursuant to section 188(a).
The San Joaquin Valley Planning Area (now under the SJVUAPCD), the
South Coast Air Basin (under the SCAQMD), and the Coachella Valley
Planning Area (now under the SCAQMD) were among the areas designated
nonattainment.
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\1\ On July 18, 1997 EPA promulgated revised and new standards
for PM-10 and PM-2.5 (62 FR 38651). EPA has not yet established
specific plan and control requirements for the revised and new
standards. This action is part of California's efforts to achieve
compliance with the 1987 PM-10 standards.
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On February 8, 1993, EPA classified four nonattainment areas as
serious nonattainment, including the San Joaquin Valley Planning Area,
the South Coast Air Basin, and the Coachella Valley Planning Area in 58
FR 3334 (January 1, 1993). This Federal Register action for SCAQMD
excludes the Los Angeles County portion of the Southeast Desert AQMA,
otherwise known as the Antelope Valley Region in Los Angeles County,
which is now under the jurisdiction of the Antelope Valley Air
Pollution Control District, as of July 1, 1997.2
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\2\ The State has recently changed the names and boundaries of
the air basins located within the southeast Desert Modified AQMA.
Pursuant to State regulation, the Coachella-San Jacinto Planning
Area is now part of the Salton Sea Air Basin (California Code of
Regulations, Title 17, 60114); the Victor Valley/Barstow Region in
San Bernardino County and the Antelope Valley Region in Los Angeles
County are now a part of the Mojave Desert Air Basin (California
Code of Regulations, Title 17, 60109). In addition, in 1996 the
California Legislature established a new local agency, the Antelope
Valley Air Pollution Control District, to have the responsibility
for local air pollution planning and measures in the Antelope Valley
Region (California Health & Safety Code, 40406).
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Section 189(a) of the CAA requires moderate PM-10 nonattainment
areas to adopt reasonably available control measures (RACM), including
reasonably available control technology (RACT) for stationary sources
of PM-10. Section 189(b) of the CAA requires serious nonattainment
areas with significant PM-10 sources to adopt best available control
measures (BACM), including best available control technology (BACT).
SCAQMD and SJVUAPCD are serious PM-10 nonattainment areas. SCAQMD has
not identified Open Burning as a significant PM-10 source in their PM-
10 BACM Plan, so EPA will evaluate the SCAQMD rules against RACM
requirements. If the SCAQMD BACM Plan should be disapproved, EPA may
require SCAQMD to submit additional Open Burning provisions to meet
BACM requirements. SJVUAPCD has not identified Open Burning as a non-
significant PM-10 source in their BACM Plan, so EPA will evaluate the
SJVUAPCD rule against RACM and BACM requirements. However, EPA may
identify additional BACM requirements for Open Burning upon review of
the SJVUAPCD BACM Plan at a later date.
In response to section 110(a) and Part D of the Act, the State of
California submitted many PM-10 rules for incorporation into the
California SIP, including the rules being acted on in this document.
This document addresses EPA's proposed action for SJVUAPCD Rule 4103,
Open Burning, SCAQMD Rule 444, Open Fires, and SCAQMD Rule 208, Permit
for Open Burning. SJVUAPCD Rule 4103 was amended December 16, 1993,
submitted by the State of California for incorporation into the SIP on
May 24, 1994, and found to be complete on July 14, 1994, pursuant to
EPA's completeness criteria that are set forth in 40 CFR part 51,
appendix V.3 SCAQMD Rule 444, was amended October 2, 1987,
and submitted by the State of California for incorporation into the SIP
on March 23, 1988. SCAQMD Rule 208 was amended January 5, 1990,
submitted by the State of California for incorporation into the SIP on
May 13, 1991, and found to be complete on July 10, 1991. The following
is EPA's evaluation and proposed action for these rules.
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\3\ EPA adopted the completeness criteria on February 16, 1990
(55 FR 5830) and, pursuant to section 110(k)(1)(A) of the CAA,
revised the criteria on August 26, 1991 (56 FR 42216).
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III. EPA Evaluation and Proposed Action
In determining the approvability of a PM-10 rule, EPA must evaluate
the rule for consistency with the requirements of the CAA and EPA
regulations, as found in section 110 and Part D of the CAA and 40 CFR
part 51 (Requirements for Preparation, Adoption, and Submittal of
Implementation Plans). EPA must also ensure that rules are enforceable
and strengthen the SIP or maintain the SIP's control strategy.
The statutory provisions relating to RACM and BACM are discussed in
EPA's ``General Preamble,'' which give the Agency's preliminary views
on how EPA intends to act on SIPs submitted under Title I of the CAA.
See 57 FR 13498 (April 16, 1992), 57 FR 18070 (April 28, 1992), and 59
FR 41998 (August 16, 1994). In this proposed action, EPA is evaluating
SCAQMD rules to determine if they fulfill the RACM requirements of CAA
section 189(a) and is evaluating SJVUAPCD rules to determine if they
fulfill the BACM requirements of CAA section 189(b).
For the purpose of assisting state and local agencies in developing
RACM and BACM rules, EPA prepared a series of technical guidance
documents on PM-10 source categories (See CAA section 190). The RACM
guidance applicable to these rules is entitled, ``Appendix C3--
Prescribed Burning Control Measures'' (57 FR 18072). The BACM guidance
applicable to these rules is entitled, ``Prescribed Burning Background
Document and Technical Information Document for Best Available Control
Measures' (EPA-450/2-92-003).
Submitted SJVUAPCD Rule 4103 replaces 25 rules in the existing SIP
for the eight counties that now comprise the SJVUAPCD. SJVUAPCD Rule
4103 regulates open burning and reduces PM emissions. Although SJVUAPCD
Rule 4103 strengthens the SIP by combining and unifying the rules of
eight counties and by eliminating the exemption for one- and two-family
dwellings to burn residential rubbish, EPA has determined that SJVUAPCD
Rule 4103 does not meet the requirements of RACM and BACM by allowing
exemptions for eight burning activities that could be limited to
Permissive-Burn Days. Rule 4103 also does not meet the requirements of
BACM for Prescribed Burning (including Agricultural Burning, Forest
Management Burning, Range Improvement Burning, and Wildland Vegetation
Management Burning) to require burner training, to require emission
reduction techniques, to require a smoke management plan, and
[[Page 17591]]
to require the second level of smoke dispersion evaluation during the
day (the first level is the initial evaluation at the begining of the
day).
Submitted SCAQMD Rule 444 regulates open burning and reduces PM
emissions. On July 6, 1982, EPA approved into the SIP a version SCAQMD
Rule 444, Open Fires, that had been adopted by the District on October
2, 1981. Although the submitted SCAQMD Rule 444 will strengthen the SIP
by requiring an approved implementation plan for Wildland Vegetation
Management burning, EPA has determined that SCAQMD Rule 444 does not
meet the requirements of RACM for Prescribed Burning, because the rule
does not base approval of a burn on an evaluation of an airshed's
capacity to disperse PM-10 emissions from all types of Open Burning and
Prescribed and other PM-10 sources, to encourage burner training by
offering incentives, and to encourage the use of emission reduction
techniques by offering incentives.
There is currently no version of the SCAQMD Rule 208, Permit for
Open Burning, in the SIP. Rule 208 requires a written permit to conduct
Open Burning pursuant to SCAQMD Rule 444, Open Fires. EPA has evaluated
the submitted SCAQMD Rule 208 and has determined that it is consistent
with the CAA, EPA regulations, and meets the criteria for RACM in the
General Preamble. EPA proposes full approval of SCAQMD Rule 208 into
the California SIP.
A detailed list of rules to be replaced and a discussion of rule
deficiencies can be found in the Technical Support Documents for
SJVUAPCD Rule 4103 and SCAQMD Rule 444, which are available from the
U.S. EPA's Region IX office.
Because of the above deficiencies, EPA cannot grant full approval
of SJVUAPCD Rule 4103 and SCAQMD Rule 444 under section 110(k)(3) and
part D. Also, because the submitted rules are not composed of separable
parts that meet all the applicable requirements of the CAA, EPA cannot
grant partial approval of the rules under section 110(k)(3). However,
EPA may grant a limited approval of the submitted rules under section
110(k)(3) in light of EPA's authority pursuant to section 301(a) to
adopt regulations necessary to further air quality by strengthening the
SIP. In order to strengthen the SIP, EPA is proposing a limited
approval of SJVUAPCD Rule 4103, Open Burning and SCAQMD Rule 444, Open
Fires, under sections 110(k)(3) and 301(a) of the CAA.
At the same time, EPA is also proposing a limited disapproval of
SJVUAPCD Rule 4103 and SCAQMD Rule 444, because they contain
deficiencies, and, as such, the rules do not fully meet the
requirements of part D of the Act. Under section 179(a)(2), if the
Administrator disapproves a submission under section 110(k) for an area
designated nonattainment, based on the submission's failure to meet one
or more of the elements required by the Act, the Administrator must
apply one of the sanctions set forth in section 179(b) unless the
deficiency has been corrected within 18 months of such disapproval.
Section 179(b) provides two sanctions available to the Administrator:
Highway funding and offsets. The 18-month period referred to in section
179(a) will begin on the effective date of EPA's final limited
disapproval. Moreover, the final disapproval triggers the Federal
implementation plan (FIP) requirement under section 110(c). It should
be noted that the rules covered by this limited disapproval have been
adopted by SJVUAPCD and SCAQMD and are currently in effect in SJVUAPCD
and SCAQMD, respectively. EPA's final limited disapproval action will
not prevent SJVUAPCD, SCAQMD, or EPA from enforcing these rules.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any state implementation plan. Each request for revision to
the state implementation plan shall be considered separately in light
of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
IV. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order (E.O.) 12866, Regulatory
Planning and Review.
B. Executive Order 12875
Under Executive Order 12875, Enhancing the Intergovernmental
Partnership, EPA may not issue a regulation that is not required by
statute and that creates a mandate upon a State, local or tribal
government, unless the Federal government provides the funds necessary
to pay the direct compliance costs incurred by those governments, or
EPA consults with those governments. If EPA complies by consulting,
Executive Order 12875 requires EPA to provide to the Office of
Management and Budget a description of the extent of EPA's prior
consultation with representatives of affected State, local and tribal
governments, the nature of their concerns, copies of any written
communications from the governments, and a statement supporting the
need to issue the regulation. In addition, Executive Order 12875
requires EPA to develop an effective process permitting elected
officials and other representatives of State, local and tribal
governments ``to provide meaningful and timely input in the development
of regulatory proposals containing significant unfunded mandates.''
Today's rule does not create a mandate on State, local or tribal
governments. The rule does not impose any enforceable duties on these
entities. Accordingly, the requirements of section 1(a) of E.O. 12875
do not apply to this rule.
C. Executive Order 13045
Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is
determined to be ``economically significant'' as defined under E.O.
12866, and (2) concerns an environmental health or safety risk that EPA
has reason to believe may have a disproportionate effect on children.
If the regulatory action meets both criteria, the Agency must evaluate
the environmental health or safety effects of the planned rule on
children, and explain why the planned regulation is preferable to other
potentially effective and reasonably feasible alternatives considered
by the Agency. This rule is not subject to E.O. 13045 because it does
not involve decisions intended to mitigate environmental health or
safety risks.
D. Executive Order 13084
Under Executive Order 13084, Consultation and Coordination with
Indian Tribal Governments, EPA may not issue a regulation that is not
required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a
[[Page 17592]]
summary of the nature of their concerns, and a statement supporting the
need to issue the regulation. In addition, Executive Order 13084
requires EPA to develop an effective process permitting elected
officials and other representatives of Indian tribal governments ``to
provide meaningful and timely input in the development of regulatory
policies on matters that significantly or uniquely affect their
communities.'' Today's rule does not significantly or uniquely affect
the communities of Indian tribal governments. Accordingly, the
requirements of section 3(b) of E.O. 13084 do not apply to this rule.
E. 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 final rule will not have a significant impact on a
substantial number of small entities because SIP approvals under
section 110 and subchapter I, part D of the Clean Air Act do not create
any new requirements but simply approve requirements that the State is
already imposing. Therefore, because the Federal SIP approval 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).
F. Unfunded Mandates
Under section 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
annual costs to State, local, or tribal governments in the aggregate;
or to 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 approval action promulgated does not
include a Federal mandate that may result in estimated annual costs of
$100 million or more to either State, local, or tribal governments in
the aggregate, or to the private sector. This Federal action approves
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.
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: U.S.C. 7401 et seq.
Dated: March 22, 1999.
Alexis Strauss,
Acting Regional Administrator, Region IX.
[FR Doc. 99-8949 Filed 4-9-99; 8:45 am]
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