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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 192-0161; FRL-6434-2]

Approval and Promulgation of Implementation Plans; California

State Implementation Plan Revision, Mojave Desert Air Quality

Management District and Tehama County Air Pollution Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing approval to 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).

EFFECTIVE DATE: This action is effective on October 13, 1999.

ADDRESSES: Copies of the rules and EPA's evaluation report of the rules

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

normal business hours. Copies of the submitted rules are also 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 94105-3901

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

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

200, Victorville, CA 92392

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 finalized 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 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 February 21, 1972 and approved on May 31, 1972

(37 FR 10856) 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 finalized 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 May 31, 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 on September 8, 1978 (43 FR 40018)

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 finalized for recision by MDAQMD were originally

adopted by SBCAPCD for the purpose of controlling particulate matter

PM-10 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

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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 final action to approve the

recision of SBCAPCD Regulation VI, which includes Rules 100-104, 109,

110, 120, and 130-137, from the SIP. 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

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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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This document also addresses EPA's final action to approve the

recision of TCAPCD Rule 4.13 from the SIP. The recision was adopted by

TCAPCD September 10, 1985. The following are EPA's response to public

comments and evaluation and final action for these rules.

III. Response to Public Comments

EPA proposed this action and announced a 30-day public comment

period on May 13, 1999 (64 FR 25822). On the same day, EPA published a

direct final approval of the proposed action. EPA received one comment

letter on the proposed rule from Eldon Heaston, MDAQMD. As a result,

EPA withdrew the direct final approval on July 12, 1999 (64 FR 37406).

The comment has been evaluated by EPA and a summary of the comment and

EPA's response is set forth below.

Comment: Mr. Heaston commented that it is not clear that the EPA

recision action deleted [San Bernardino County APCD] Regulation VI from

the SIP and corrected the previous disapproval of the recision in 40

CFR 52.220(c)(39)(ii)(D) and 40 CFR 52.228(b)(1)(iv).

Response: EPA determined that the original submittal and approval

dates of San Bernardino County APCD Regulation VI were incorrect in EPA

records, therefore the incorporation by reference into the CFR was

incorrect. This final action corrects the original submittal and

approval dates, corrects the incorporation by reference to 40 CFR

52.220(b)(3)(ii), and deletes the previous disapproval in 40 CFR

52.220(c)(39)(ii)(D) and in 40 CFR 52.228(b)(1)(iv).

IV. EPA Evaluation and Final 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 approved under section

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

part D.

V. 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 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

[[Page 49400]]

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 November 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).)

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.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by

reference, Intergovernmental relations, Reporting and recordkeeping

requirements, Particulate matter.

Dated: August 26, 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:

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 removing paragraph (c)(39)(ii)(D)

and by adding paragraphs (b)(3)(ii) and (b)(4) 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.

(4) San Bernardino County APCD.

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

replacement Regulation VI, Rules 100 to 104, 109, 110, 120, and 130 to

137.

* * * * *

3. Section 52.228 is amended by removing paragraph (b)(1)(iv).

[FR Doc. 99-23588 Filed 9-10-99; 8:45 am]

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