[Federal Register Volume 63, Number 172 (Friday, September 4, 1998)]
[Rules and Regulations]
[Pages 47179-47182]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-23817]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA 20-7-0084a FRL-6138-8]
Approval and Promulgation of Implementation Plans; California
State Implementation Plan Revision, Bay Area Air Quality Management
District
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is taking direct final action on revisions to the
California State Implementation Plan. The revisions concern rules from
the Bay Area Air Quality Management District (BAAQMD). The rules
control particulate matter (PM) emissions from sources of open burning
and visible emissions. This approval action will incorporate these
rules into the federally approved SIP. The intended effect of approving
these rules is to regulate emissions of PM in accordance with the
requirements of the Clean Air Act, as amended in 1990 (CAA or the Act).
Thus, EPA is finalizing the approval of
[[Page 47180]]
these revisions into the California SIP under provisions of the CAA
regarding EPA action on SIP submittals and SIPs for national primary
and secondary ambient air quality standards.
DATES: This rule is effective on November 3, 1998 without further
notice, unless EPA receives relevant adverse comments by October 5,
1998. If EPA receives such comments, then it will publish a timely
withdrawal in the Federal Register informing the public that this rule
did take effect.
ADDRESSES: Comments must be submitted to Andrew Steckel at the Region
IX office listed below. Copies of the rule revisions and EPA's
evaluation report for each rule are available for public inspection at
EPA's Region IX office during normal business hours. Copies of the
submitted rule revisions are available for inspection at the following
locations:
Rulemaking Office (AIR-4), Air Division, U.S. Environmental Protection
Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105
Environmental Protection Agency, Air Docket (6102), 401 ``M'' Street,
SW, Washington, DC 20460
California Air Resources Board, Stationary Source Division, Rule
Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95812
Bay Area Air Quality Management District, 939 Ellis Street, San
Francisco, CA 94109
FOR FURTHER INFORMATION CONTACT: Karen Irwin, Rulemaking Office, AIR-4,
Air Division, U.S. Environmental Protection Agency, Region IX, 75
Hawthorne Street, San Francisco, CA 94105, Telephone: (415) 744-1903
SUPPLEMENTARY INFORMATION:
I. Applicability
The rules being approved into the California SIP include: BAAQMD
Regulation 5, Open Burning, and Regulation 6, Visible Emissions. These
rules were submitted by the California Air Resources Board to EPA on
March 10, 1998 and May 13, 1991, respectively.
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, 43 FR 8964; 40 CFR Part
81). 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. Pub. L. 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
pursuant to section 188(a). The San Francisco Bay Area Air Basin was
not among the areas designated nonattainment for TSP or PM-10.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
As part of updating the California SIP, the State of California
submitted many PM-10 rules for incorporation into the California SIP on
March 10, 1998 and May 13, 1991, including the rules being acted on in
this document. This document addresses EPA's direct-final action for
BAAQMD Regulation 5, Open Burning, and Regulation 6, Visible Emissions.
BAAQMD adopted Regulation 5 on November 11, 1994 and Regulation 6 on
December 19, 1990. These submitted rules were found to be complete on
May 21, 1998 and July 10, 1991, respectively, pursuant to EPA's
completeness criteria that are set forth in 40 CFR part 51, Appendix V
2 and are being finalized for approval into the SIP.
---------------------------------------------------------------------------
\2\ 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).
---------------------------------------------------------------------------
Regulation 5 controls emissions from open burning and Regulation 6
is a generally applicable rule that controls visible emissions from a
variety of sources. PM emissions can harm human health and the
environment. This rule was originally adopted as part of BAAQMD's
effort to maintain the National Ambient Air Quality Standard (NAAQS)
for PM-10. The following is EPA's evaluation and final action for these
rules.
III. EPA Evaluation and 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 40 CFR part 51 (Requirements
for Preparation, Adoption, and Submittal of Implementation Plans). EPA
must also ensure that rules are enforceable and strengthen or maintain
the SIP's control strategy.
On September 2, 1981, EPA approved into the SIP a version of
Regulation 5, Open Burning and a version of Regulation 6, Visible
Emissions, that had been adopted by BAAQMD on September 5, 1979.
BAAQMD's submitted Regulation 5, Open Burning, includes the following
significant changes from the current SIP:
Modifies the definition of ``permissive burn day'' to
exclude days when open burning is estimated to adversely affect ambient
air quality or downwind population. This language replaces the SIP-
approved rule's more vague language that a permissive burn is declared
when air pollution caused by open burning may be minimized.
Modifies the definition of hazardous material to include
natural vegetation or native growth cleared to maintain a firebreak
around any building to reduce risk of wildfire.
Adds new requirements for agricultural fires set for the
purpose of disposing grain stubble where both grain and vegetable crops
are harvested during the same calendar year.
Adds acreage burning allotment limitations on a daily
basis for stubble fires and prohibits fires prior to 10:00 AM. Limits
fire ignition techniques (to relatively clean techniques) unless field
conditions do not lend themselves to these techniques. Adds a crackle
moisture test requirement following rain. Requires a prior acreage
burning allocation from the APCO before a stubble burn occurs. Adds a
``crackle'' test procedure for appraisal of field crop fuel moisture of
stubble or straw.
Allows fires for disposal of hazardous materials in
compliance with Section 4291 of the Public Resources Code provided all
of a series of additional conditions are satisfied.
Limits the time of day wildlife management fires can be
set and establishes acreage limitations for burning.
Adds provisions to limit the amount of waste propellants,
explosives and pyrotechnics that can be burned per facility, requires
documentation of burns and requires installation of permitted on-site
and off-site waste treatment systems by January 1, 1997. The submitted
rule prohibits burning of waste propellants after January 1997.
Adds a provision for burning to dispose of contraband
requiring prior notification to the BAAQMD.
Adds provisions for wildland vegetation management
burning, filmmaking burning and civic event burning. The submitted rule
requires prior approval of burn plans by the BAAQMD for these types of
fires.
Eliminates a reporting requirement to the District
following a burn for written records indicating the location
[[Page 47181]]
of the fire, type of material burned and quantity burned.
Adds a provision specifying prior notification
requirements for the types of burns where notification is required (per
the SIP-approved rule).
BAAQMD's submitted Regulation 6, Visible Emissions, includes the
following significant changes from the current SIP:
Adds exemptions for open outdoor fires (subject to BAAQMD
Regulation 5) and temporary sandblasting operations (subject to BAAQMD
Regulation 12, Rule 4).
Adds a provision for diesel pile-driving hammers to
require that a Ringlemann 1 (20% opacity) standard cannot be exceeded
for more than four minutes during the driving of a single pile unless
the operator uses kerosene, smoke suppressing fuel additives and
synthetic lubricating oil. If these cleaner products are used, a
Ringlemann 2 (40% opacity) limit applies which cannot be exceeded for
more than four minutes during the driving of a single pile. Also,
records must be maintained demonstrating use of the cleaner products.
In reference to SIP-approved Regulation 6, diesel pile-driving hammers
are included under a Ringlemann 2 standard which cannot be exceeded for
more than three minutes an hour.
EPA has evaluated the submitted rules and has determined that they
are consistent with the CAA, EPA regulations, and EPA policy.
Therefore, BAAQMD Regulation 5, Open Burning, and Regulation 6, Visible
Emissions, are being approved under section 110(k)(3) of the CAA as
meeting the requirements of section 110(a).
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future 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.
EPA is publishing this rule without prior proposal because the
Agency views this as a noncontroversial amendment and anticipates no
adverse comments. However, in the proposed rules section of this
Federal Register publication, EPA is publishing a separate document
that will serve as the proposal to approve the SIP revision should
relevant adverse comments be filed. This rule will be effective
November 3, 1998 without further notice unless the Agency receives
relevant adverse comments by October 5, 1998.
If the EPA received such comments, then EPA will publish a timely
withdrawal of the direct final rule and inform the public that the rule
will not take effect. All public comments received will then be
addressed in a subsequent final rule based on proposed rule. The EPA
will not institute a second comment period on this rule. Any parties
interested in commenting on this rule should do so at this time. If no
such comments are received, the public is advised that this rule will
be effective on November 3, 1998 and no further action will be taken on
the proposed rule.
IV. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from E.O. 12866 review.
The final rule is not subject to E.O. 13045, entitled ``Protection
of Children from Environmental Health Risks and Safety Risks,'' because
it is not an ``economically significant'' action under E.O. 12866.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
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 impose any new requirements, the
Administrator certifies that it does not have a significant impact on
any small entities affected. Moreover, due to the nature of the
Federal-State relationship under the CAA, preparation of a 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).
C. 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
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 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
Federal requirements. Accordingly, no additional costs to State, local,
or tribal governments, or to the private sector, result from this
action.
D. Submission to Congress and the General Accounting Office
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. This rule is not a
``major'' rule as defined by 5 U.S.C. 804(2).
E. Petitions for Judicial Review
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 November 3, 1998. 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
[[Page 47182]]
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, Reporting and recordkeeping
requirements, Particulate matter.
Note: Incorporation by reference of the State Implementation
Plan for the State of California was approved by the Director of the
Federal Register on July 1, 1982.
Dated: July 23, 1998.
Clyde Morris,
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)(184)(i)(C)(2)
and (254)(i)(F) to read as follows:
Sec. 52.220 Identification of plan.
* * * * *
(c) * * *
(184) * * *
(i) * * *
(C) * * *
(2) Regulation 6, adopted on December 19, 1990.
* * * * *
(254) * * *
(i) * * *
(F) Bay Area Air Quality Management District.
(1) Regulation 5, adopted on November 2, 1994.
[FR Doc. 98-23817 Filed 9-3-98; 8:45 am]
BILLING CODE 6560-50-P
