E7-21318. Revisions to the California State Implementation Plan, Great Basin Unified Air Pollution Control District and Mojave Desert Air Quality Management District

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is taking direct final action to approve revisions to the Great Basin Unified Air Pollution Control District (GBUAPCD) and Mojave Desert Air Quality Management District (MDAQMD) portions of the California State Implementation Plan (SIP). These revisions concern particulate matter (PM-10) emissions from wood burning appliances and open outdoor fires. We are approving local rules under the Clean Air Act as amended in 1990 (CAA or the Act).

DATES:

This rule is effective on December 31, 2007 without further notice, unless EPA receives adverse comments by November 30, 2007. If we receive such comments, we will publish a timely withdrawal in the Federal Register to notify the public that this direct final rule will not take effect.

ADDRESSES:

Submit comments, identified by docket number EPA-R09-OAR-2007-0459, by one of the following methods:

• Federal eRulemaking Portal: www.regulations.gov. Follow the on-line instructions.
• E-mail: [e-mail].
• Mail or deliver: Andrew Steckel (Air-4), U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105.

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 e-mail. 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 e-mail directly to EPA, your e-mail 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.

Docket: The index to the docket for this action is 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 in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), 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:

Al Petersen, EPA Region IX, [phone], [e-mail].

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 are the purposes 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. EPA Recommendation to Further Improve a Rule

D. Public Comment and Final Action

III. 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 dates that the rules were amended by the local air agencies and submitted by the California Air Resources Board (CARB).

Table 1.—Submitted Rules

Local agency	Rule No.	Rule title	Revised or amended	Submitted
GBUAPCD	405	Exceptions	07/07/05 Revised	10/20/05
GBUAPCD	431	Particulate Matter	12/04/06 Revised	05/08/07
MDAQMD	444	Open Outdoor Fires	09/25/06 Amended	05/08/07

On November 22, 2005, the submittal of GBUAPCD Rule 405 was determined to meet the completeness criteria in 40 CFR part 51 appendix V, which must be met before formal EPA review. On July 23, 2007, the submittal of GBUAPCD Rule 431 and MDAQMD Rule 444 was determined to meet the completeness criteria.

B. Are there other versions of these rules?

A version of GBUAPCD Rule 405 was approved into the SIP on June 6, 1977 (42 FR 28883). EPA has not acted on a version of Rule 405 revised on May 8, 1996 and submitted on August 5, 2002. While we can act only on the most recent version, we have considered the contents of the superseded version.

A version of GBUAPCD Rule 431 was approved into the SIP on June 24, 1996 (61 FR 32341).

MDAQMD was previously comprised of the Riverside County Air District (RCAD) and the San Bernardino County Air District (SBCAD). The versions on which the current MDAQMD Rule 444 are based are RCAD Rule 444, SBCAD Rule 57, and SBCAD Rule 57.1, which were approved into the SIP on September 8, 1978 (43 FR 40011), June 14, 1978 (43 FR 25684), and June 14, 1978 (43 FR 25684), respectively.

C. What are the purposes of the submitted rule revisions?

Section 110(a) of the Clean Air Act (CAA) requires states to submit regulations that control volatile organic compounds, nitrogen oxides, particulate matter, and other air pollutants which harm human health and the environment. These rules were developed as part of local air districts' programs to control these pollutants.

The purposes of the submitted GBUAPCD Rule 405 revisions relative to the SIP rule are as follows:

• (405.preamble): The rule extends the applicability of the listed exceptions to Rule 404-A, Particulate Matter, and Rule 404-B, Oxides of Nitrogen, from the original Rule 400, Ringlemann Chart.
• (405.C,E): The rule deletes the exceptions to open burning regulations for agricultural operations and the use of other agricultural equipment necessary in the growing of crops or raising of fowl or animals.
• (405.F,G,H,I,J): The rule adds exceptions to open burning regulations for (a) the treatment of waste propellants, explosives, and pyrotechnics in open burning/open detonation operations on military bases for operations approved in a burn plan as regulated by SIP Rule 432, (b) burning of materials for special effects in filming or video operations, (c) the disposal of contraband by burning, (d) recreational or ceremonial fires, and (e) a fire set for the purpose of eliminating a public health hazard that cannot be abated by any other practical means.

The purposes of the submitted GBUAPCD Rule 431 revisions relative to the SIP rule are as follows:

• 431.A: The rule is expanded to include communities that are determined by the Board of GBUAPCD to be High Road Dust Areas (HRDA) or High Wood Smoke Areas (HWSA), which contribute to exceedences of state or federal 24-hour PM-2.5 or PM-10 standards. The SIP rule applies only to the Town of Mammoth Lakes.
• 431.B: The rule adds appropriate definitions for HRDA and HWSA in addition to the HRDA and HWSA government agencies that regulate these areas.
• 431.C.5: The rule adds the requirement that a HWSA keep a record of all EPA Phase II certified wood-burning appliances.
• 431.D.3 and 4: The rule adds the requirement to obtain a building permit from the Town of Mammoth Lakes for the installation of all solid fuel burning appliances. Outside the Town of Mammoth Lakes, the building permit is obtained from the HWSA agency.
• 431.D.5 and E: The rule adds requirements for inspectors for verification of compliance with regulations for installation of new certified solid fuel burning appliances and removal or replacement of non-certified appliances.
• 431.I and J: The rule adds requirements and thresholds for mandatory curtailment and voluntary curtailment of solid fuel combustion in the Town of Mammoth Lakes and HWSA areas.

The purposes of the submitted MDAQMD Rule 444 revisions relative to the SIP rules are as follows:

• 444(A): The rule is revised to apply the District Smoke Management Program to open burning while minimizing smoke impacts to the public.
• 444(B)(13): The rule replaces an “Approved Burn Plan” with a “Smoke Management Plan.”
• 444(C)(1): The rule adds the requirement for all burn projects that are greater than 10 acres or that are estimated to produce more than one ton of particulate matter shall be conducted in accordance with the Smoke Management Program.
• 444(C)(2): The rule adds a list of materials prohibited from open burning.
• 444(C)(3): The rule adds the permission to burn during adverse meteorological conditions in a case where there would be an imminent and substantial economic loss, providing a special permit is obtained from the District and not a local fire agency.
• 444(C)(4): The rule adds the provision for a prescribed burn permittee to obtain from CARB up to 48 hours in advance of the burn day a permissive-burn, marginal-burn, or no-burn forecast.
• 444(C)(6): The rule adds requirements for ignition, stacking, drying, and time of day for open burning, except for prescribed burning.
• 444(C)(7): The rule adds to the list of burning applications with a permit (a) empty containers used for explosives, (b) right-of-way clearance for a public entity or utility, or (c) wood waste.
• 444(C)(9): The rule adds the requirement for a Smoke Management Plan for prescribed burning in (a) Forest Management, (b) Range Improvement, and (c) Wildland Vegetation Management.
• 444(D)(1): The rule deletes the exemptions for (a) open fires in agricultural operations at over 3,000 feet elevation and (b) open fires in agricultural burning at over 6,000 feet elevation.

EPA's technical support document (TSD) has more information about these rules.

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). SIP rules in serious PM-10 nonattainment areas must require for significant sources best available control measures (BACM), including best available control technology (BACT) (see section 189(b)). GBUAPCD regulates a serious PM-10 nonattainment area (see 40 CFR part 81), so GBUAPCD Rules 405 and 431 must fulfill the requirements of BACM/BACT. MDAQMD regulates a moderate PM-10 nonattainment area (see 40 CFR part 81), so MDAQMD Rule 444 must fulfill the requirements of RACM/RACT.

Guidance and policy documents that we used to help evaluate rules consistently include the following:

• Requirements for Preparation, Adoption, and Submittal of Implementation Plans, U.S. EPA, 40 CFR part 51.
• PM-10 Guideline Document (EPA-452/R-93-008).
• Technical Information Document for Residential Wood Combustion Best Available Control Measures, (EPA-450/2-92-002).
• Minimum BACM/RACM Control Measures for Residential Wood Combustion Rules, EPA Region IX (August 8, 2007).

B. Do the rules meet the evaluation criteria?

We believe that GBUAPCD Rules 405 and 431 and MDAQMD Rule 444 are consistent with the relevant policy and guidance regarding enforceability, BACM/BACT, RACM/RACT, and SIP relaxations and should be given full approval. The TSD has more information on our evaluation.

C. EPA Recommendations To Further Improve a Rule

The TSD describes an additional rule revision that does not affect EPA's current action but is recommended for the next time the local agency modifies GBAPCD Rule 431.

D. Public Comment and Final Action

As authorized in section 110(k)(3) of the CAA, EPA is fully approving the submitted rules because we believe they fulfill all relevant requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this Federal Register, we are simultaneously proposing approval of the same submitted rule. If we receive adverse comments by November 30, 2007, 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 December 31, 2007. This will incorporate the rule into the federally enforceable SIP.

Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this 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. 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 Clean Air Act. 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 approves a State rule implementing a Federal standard.

In reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. 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 Clean Air Act. 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. section 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. section 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 31, 2007. 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: August 22, 2007.

Laura Yoshii,

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)(342)(i)(D) and (c)(350) to read as follows:

§ 52.220

Identification of plan.

* * * * *

(c) * * *

(342) * * *

(i) * * *

(D) Great Basin Unified Air Pollution Control District.

(1) Rule 405, adopted on September 5, 1974 and revised on July 7, 2005.

* * * * *

(350) New and amended regulations were submitted on May 8, 2007, by the Governor's designee.

(i) Incorporation by reference.

(A) Great Basin Unified Air Pollution Control District.

(1) Rule 431, adopted on December 7, 1990 and revised on December 4, 2006.

(B) Mojave Desert Air Quality Management District.

(1) Rule 444, adopted on October 8, 1976 and amended on September 25, 2006.