Approval and Promulgation of Implementation Plans; California State Implementation Plan Revision, Bay Area Air Quality Management District

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.

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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

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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.

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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.

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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.

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\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).

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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

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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

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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]

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