03-10426. Revisions to the California State Implementation Plan, Lake County Air Quality Control District and San Diego County Air Pollution Control District

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is taking direct final action to approve revisions to the Lake County Air Quality Management District (LCAQMD) and San Diego County Air Pollution Control District (SDCAPCD) portions of the California State Implementation Plan (SIP). The LCAQMD and SDCAPCD revisions concern the emission of particulate matter (PM-10) from open burning. We are approving the 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 June 30, 2003, without further notice, unless EPA receives adverse comments by May 30, 2003. 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:

Mail or e-mail comments to Andy Steckel, Rulemaking Office Chief (AIR-4), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105; [e-mail].

You can inspect a copy of the submitted rules and EPA's technical support documents (TSDs) at our Region IX office during normal business hours. You may also see a copy of the submitted rules and TSDs at the following locations:

Air and Radiation Docket and Information Center, U.S. Environmental Protection Agency, (Mail Code 6102T), Room B-102, 1301 Constitution Avenue, NW., Washington, DC 20460.

California Air Resources Board, Stationary Source Division, Rule Evaluation Section, 1001 “I” Street, Sacramento, CA 95814.

Lake County Air Quality Management District, 885 Lakeport Boulevard, Lakeport, CA 95453.

San Diego County Air Pollution Control District, 9150 Chesapeake Drive, San Diego, CA 92123.

A copy of a rule may also be available via the Internet at http://www.arb.ca.gov/​drdb/​drdbltxt.htm. This is not an EPA Web site and it may not contain the same version of the rule that was submitted to EPA. Readers should verify that the adoption date of the rule listed is the same as the rule submitted to EPA for approval and be aware that the official submittal is only available at the agency addresses listed above.

FOR FURTHER INFORMATION CONTACT:

Al Petersen, Rulemaking Office (AIR-4), U.S. Environmental Protection Agency, Region IX; [phone].

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 Rule Revisions?

II. EPA's Evaluation and Action

A. How Is EPA Evaluating the Rules?

B. Do the Rules Meet the Evaluation Criteria?

C. Public Comment and Final Action

III. Background Information

A. Why Were These Rules Submitted?

IV. 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 date that they were revised by the local air agencies and submitted by the California Air Resources Board (CARB).

Table 1.—Submitted Rules

Local agency	Rule # or [section #]	Rule title or section title or [subject matter]	Amended, adopted, or rescinded	Submitted
LCAQMD	[226.5]	Fire Season Burn Ban	10/01/02 Adopted	12/12/02
LCAQMD	[232.1]	Incinerator	10/01/02 Adopted	12/12/02
LCAQMD	[238.5]	Natural Vegetation	10/01/02 Adopted	12/12/02
LCAQMD	[249.3]	Processed or Treated Wood and Wood Products	10/01/02 Adopted	12/12/02
LCAQMD	[250.5]	Residential Waste Burning	10/01/02 Adpoted	12/12/02
LCAQMD	[431.5]	[Non-Agricultural Open Burning]	10/01/02 Amended	12/12/02
LCAQMD	[431.7]	[Non-Agricultural Burning Hours]	10/01/02 Amended	12/12/02
LCAQMD	[432.5]	Exemptions for Preparation of Food and Recreational Purposes	10/01/02 Amended	12/12/02
LCAQMD	[433]	[Single- and Two-Family Dwellings]	10/01/02 Amended	12/12/02
LCAQMD	[433.5]	[Exemption to Lot Size and Distance Restrictions]	10/01/02 Adopted	12/12/02
LCAQMD	[436]	Wood Waste Disposal by Open Burning	10/01/02 Adopted	12/12/02
LCAQMD	[436.5]	Wood Waste Burning	10/01/02 Adopted	12/12/02
LCAQMD	[442]	Wood Waste Disposal by Open Burning	10/01/02 Rescinded	12/12/02
SDCAPCD	101	Burning Control	09/25/02 Adopted	11/19/02
SDCAPCD	101 through 112	[SIP Open Burning Rules]	09/25/02 Rescinded	11/19/02

On February 7, 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 into the SIP a version of LCAQMD Section 436 on October 24, 1980 (45 FR 70448). We approved a version of LCAQMD Sections 431.7, 432.5, 436.5, and 442 on October 23, 1989 (54 FR 43173). We approved a version of LCAQMD Sections 226.5, 431.5, and 433 on June 14, 2002 (67 FR 40867).

We approved into the SIP versions of submitted SDCAPCD Rule 101 as SDCAPCD Rules 105, 106, 107, 110, 111, and 112 on May 11, 1977 (42 FR 23805), as SDCAPCD Rule 104 on August 31, 1978 (43 FR 38826), as SDCAPCD Rule 109 on July 6, 1982 (47 FR 29233), and as SDCAPCD Rules 101, 102, 103, and 108 on March 11, 1998 (63 FR 11831). These SIP versions are all submitted for recision and should be replaced by submitted SDCAPCD Rule 101.

C. What Is the Purpose of the Submitted Rule Revisions?

The purpose of the submitted LCAQMD sections is to amend and adopt sections that minimize public exposure from residential waste burning, improve air quality, and maximize fire safety while minimizing the health consequence and demand on resources of affected agencies.

One purpose of the submitted SDAPCD Rule 101 is to consolidate SIP Rules 101 through 112 into one rule. Other purposes are to increase stringency and to meet new California open burning guidelines.

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). Section 189(a) of the CAA requires moderate PM-10 nonattainment areas with significant PM-10 sources to adopt reasonably available control measures (RACM), including reasonably available control technology (RACT). RACM/RACT is not required for attainment areas unless required by a maintenance attainment plan. LCAQMD and SDCAPCD regulate a PM-10 attainment area and fulfilling RACM/RACT is not required. See 40 CFR 81.305.

The following guidance documents were used for reference:

• Requirements for Preparation, Adoption, and Submittal of Implementation Plans, U.S. EPA, 40 CFR part 51.
• General Preamble Appendix C3—Prescribed Burning Control Measures (57 FR 18072, April 28, 1992).
• PM-10 Guideline Document, EPA-452/R-93-008.

B. Do the Rules Meet the Evaluation Criteria?

We believe the submitted rules and recisions are consistent with the relevant policy and guidance regarding enforceability, SIP relaxations, and RACM/RACT requirements and should be approved. The TSDs have more information on our evaluation.

C. Public Comment and Final Action

As authorized in section 110(k)(3) and 110(k)(6) of the CAA, EPA is fully approving the submitted rules and rule recisions because we believe they fulfill 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 the April 16, 2003 Federal Register (68 FR 18581), we proposed approval of the same submitted rules. If we receive adverse comments by May 30, 2003, 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 June 30, 2003. This will incorporate these rules into the federally-enforceable SIP and remove the rescinded rules 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.

III. Background Information

A. Why Were These Rules Submitted?

PM-10 harms human health and the environment. Section 110(a) of the CAA requires states to submit regulations that control PM-10 emissions. Table 2 lists some of the national milestones leading to the submittal of local agency PM-10 rules.

Table 2.—PM-10 Nonattainment Milestones

Date	Event
March 3, 1978	EPA promulgated a list of total suspended particulate (TSP) nonattainment areas under the Clean Air Act, as amended in 1977. 43 FR 8964; 40 CFR 81.305.
July 1, 1987	EPA replaced the TSP standards with new PM standards applying only up to 10 microns in diameter (PM-10). 52 FR 24672.
November 15, 1990	Clean Air Act Amendments of 1990 were enacted, Pub. L. 101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-7671g.
November 15, 1990	PM-10 areas meeting the qualifications of section 107(d)(4)(B) of the CAA were designated nonattainment by operation of law and classified as moderate pursuant to section 188(a). States are required by section 110(a) to submit rules regulating PM-10 emissions in order to achieve the attainment dates specified in section 188(c).

IV. 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 CAA. 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 CAA. 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 CAA. 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 30, 2003. 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 11, 2003.

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—[AMENDED]

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 paragraphs (c)(21)(vi)(D), (c)(41)(ii)(F), (c)(103)(ii)(E), (c)(176)(i)(B)( 2), (c)(182)(i)(E)(2), (c)(307)(i)(C), and (c)(308)(i)(B) to read as follows:

§ 52.220

Identification of plan.

* * * * *

(c) * * *

(21) * * *

(vi) * * *

(D) Previously approved on May 11, 1977 in paragraph (c)(21)(vi)(A) of this section and now deleted Rules 105, 106, 107, 110, 111, and 112 (now replaced by Rule 101).

* * * * *

(41) * * *

(ii) * * *

(F) Previously approved on August 31, 1978 in paragraph (c)(41)(ii)(A) of this section and now deleted Rule 104 (now replaced by Rule 101).

* * * * *

(103) * * *

(ii) * * *

(E) Previously approved on July 6, 1982 in paragraph (c)(103)(ii)(B) of this section and now deleted Rule 109 (now replaced by Rule 101).

* * * * *

(176) * * *

(i) * * *

(B) * * *

(2) Previously approved on October 23, 1989 in paragraph (c)(176)(i)(B)(1) of this section and now deleted Section 442 (now replaced by Section 436).

* * * * *

(182) * * *

(i) * * *

(E) * * *

(2) Previously approved on March 11, 1988 in paragraph (c)(182)(i)(E)(1) of this section and now deleted Rules 101, 102, 103, and 108 (now replaced by Rule 101).

* * * * *

(307) * * *

(i) * * *

(C) San Diego County Air Pollution Control District.

(1) Rule 101, adopted on September 25, 2002.

* * * * *

(308) * * *

(i) * * *

(B) Lake County Air Quality Management District.

(1) Sections 226.5, 232.1, 238.5, 249.3, 250.5, 433.5, 436, and 436.5, adopted on October 1, 2002 and Sections 431.5, 431.7, 432.5, and 433, amended on October 1, 2002.

* * * * *