Approval and Promulgation of Implementation Plans; California State Implementation Plan Revisions, Mojave Desert Air Quality Management District and Tehama County Air Pollution Control District

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 192-0132a; FRL-6334-5]

Approval and Promulgation of Implementation Plans; California

State Implementation Plan Revisions, Mojave Desert Air Quality

Management District and Tehama County Air Pollution Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve revisions to the

California State Implementation Plan (SIP) which concern the recision

of rules for the Mojave Desert Air Quality Management District (MDAQMD)

and Tehama County Air Pollution Control District (TCAPCD). These rules

concern emissions from orchard heaters and fuel burning equipment. The

intended effect of this action is to bring the MDAQMD and TCAPCD SIPs

up to date in accordance with the requirements of the Clean Air Act, as

amended in 1990 (CAA or the Act).

DATES: This rule is effective on July 12, 1999 without further notice,

unless EPA receives relevant adverse comments by June 14, 1999. If EPA

receives such comments then it will publish a timely withdrawal in the

Federal Register informing the public that this rule will not take

effect.

ADDRESSES: Written comments should be addressed 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 for the rules are

available for public inspection at EPA's Region IX office during normal

business hours. Copies of the submitted rule revisions are also

available for inspection at the following locations:

California Air Resources Board, Stationary Source Division, Rule

Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95812.

Mojave Desert Air Quality Management District, 15428 Civic Drive, Suite

200, Victorville, CA 92392-2383

-Tehama County Air Pollution Control District, 1760 Walnut Street, Red

Bluff, CA 96080.

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 recision from the MDAQMD portion of

the California SIP are included in San Bernardino County Air Pollution

Control District (SBCAPCD) Regulation VI, Orchard, Field or Citrus

Grove Heaters, consisting of Rule 100, Definitions; Rule 101,

Exceptions; Rule 102, Permits Required; Rule 103, Transfer; Rule 104,

Standards for

[[Page 25823]]

Granting Permits; Rule 109, Denial of Application; Rule 110, Appeals;

Rule 120, Fees; Rule 130, Classification of Orchard Heaters; Rule 131,

Class I Heaters Designated; Rule 132, Class II Heaters Designated; Rule

133, Identification of Heaters; Rule 134, Use of Incomplete Heaters

Prohibited; Rule 135, Cleaning, Repairs; Rule 136, Authority to

Classify Orchard Heaters; and Rule 137, Enforcement. These rules were

previously submitted by the California Air Resources Board (CARB) to

EPA on June 30, 1972 and approved on September 22, 1972, 37 FR 19812,

for incorporation into the SIP. These rule recisions were adopted by

the MDAQMD on June 24, 1996 and submitted by CARB to EPA on March 3,

1997.

The rule being proposed for recision from the TCAPCD portion of the

California SIP is TCAPCD Rule 4.13, Fuel Burning Equipment. This rule

was previously submitted by CARB to EPA on February 21, 1972 and

approved on May 31, 1972, 37 FR 10856, for incorporation into the SIP.

This rule recision was adopted by the TCAPCD on September 10, 1985 and

submitted by CARB to EPA on February 10, 1986.

II. Background

On September 22, 1972, the EPA approved SBCAPCD Regulation VI,

Rules 100-104, 109, 110, 120, and 130-137, Orchard, Field or Citrus

Grove Heaters, for incorporation into the SIP. The SBCAPCD rescinded

Regulation VI from its rulebook prior to 1977. The recision of SBCAPCD

Regulation VI was disapproved by EPA (43 FR 40018, September 8, 1978)

as a SIP relaxation. On July 1, 1993, the SBCAPCD became the Mojave

Desert Air Quality Management District (MDAQMD) by act of the

California Legislature. In 1994, MDAQMD added portions of Riverside

County, the Palo Verde Valley, and Blythe. The SBCAPCD rules remain in

effect after July 1, 1993 until the MDAQMD rescinds or supersedes them.

The rules being proposed for recision by MDAQMD were originally adopted

by SBCAPCD for the purpose of controlling emissions from orchard

heaters. In the spring of 1995, the MDAQMD conducted a survey of

affected industry to determine if Class I and Class II orchard heaters

were still in use. The survey determined that no known facility within

the MDAQMD uses this antiquated technology. Wind machines are currently

used to protect crops from frost. Therefore, the recision of SBCAPCD

Regulation VI by MDAQMD does not relax the SIP control strategy.

On July 12, 1990, EPA approved TCAPCD Rule 4.9, Specific

Contaminants, and Rule 4.14, Fuel Burning Equipment (Operational), for

incorporation into the SIP. Rule 4.13, Fuel Burning Equipment, is

submitted for recision, since Rules 4.9 and 4.14 provide regulation of

the same pollutant emissions. Rule 4.9 regulates SOX and combustion

contaminant (particulate matter) emissions by limiting the respective

concentrations in the gas, instead of by absolute quantities of

emissions. Rule 4.14 regulates NOX emissions by limiting the

concentration in the gas, instead of by absolute quantity of emissions.

SIP-approved Rules 4.9 and 4.14 strengthen the SIP relative to Rule

4.13, except for large fuel burning equipment with a capacity in excess

of about 500 million British Thermal Units per hour. The TCAPCD does

not have larger capacity sources; therefore, the recision of TCAPCD

rule 4.13 does not relax the SIP control strategy.

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 rule recisions being acted on in this

document. This document addresses EPA's direct-final action for

approving the recision of SBCAPCD Regulation VI, which includes Rules

100-104, 109, 110, 120, and 130-137. The recision was adopted June 24,

1996 by MDAQMD. This submittal was found to be complete on August 12,

1997, pursuant to EPA's completeness criteria that are set forth in 40

CFR Part 51 Appendix V.1 These rules are being proposed for

recision from the SIP. This document also addresses EPA's proposed

action approving the recision of TCAPCD Rule 4.13. The recision was

adopted by TCAPCD September 10, 1985. This rule is being proposed for

recision from the SIP. The following is EPA's evaluation and final

action for these rules.

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\1\ 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 strengthen the

SIP or maintain the SIP's control strategy.

EPA has evaluated the submitted rule recisions and has determined

that they are consistent with the CAA, EPA regulations, and EPA policy.

Therefore, the recision of SBCAPCD Regulation VI, Rules 100-104, 109,

110, 120, and 130-137 and TCAPCD Rule 4.13 are being approved under

section 110(k)3 of the CAA as meeting the requirements of section

110(a) and part D.

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 July

12, 1999 without further notice unless the Agency receives relevant

adverse comments by June 14, 1999.

If the EPA receives such comments, then EPA will publish a timely

withdrawal informing the public that the rule will not take effect. All

public comments received will then be addressed in a subsequent final

rule based on the 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 July 12, 1999

and no further action will be taken on the proposed recisions.

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

[[Page 25824]]

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 is

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 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.

G. Submission to Congress and the Comptroller General

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).

H. 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 July 12, 1999. 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, 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: April 9, 1999.

David P. Howekamp,

Acting Regional Administrator, Region IX.

Part 52, chapter I, title 40 of the Code of Federal Regulations is

amended as follows:

[[Page 25825]]

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 (b)(3)(ii) and

(c)(6)(xv)(B) to read as follows:

Sec. 52.220 Identification of plan.

* * * * *

(b) * * *

(3) * * *

(ii) Previously approved on May 31, 1972 and now deleted without

replacement Rule 4.13.

* * * * *

(c) * * *

(6) * * *

(xv) * * *

(B) Previously approved on September 22, 1972 and now deleted

without replacement Rules 100 to 104, 109, 110, 120, and 130 to 137.

* * * * *

[FR Doc. 99-11825 Filed 5-12-99; 8:45 am]

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