Approval and Promulgation of Implementation Plans; California State Implementation Plan, San Joaquin Valley Unified Air Pollution Control District; South Coast Air Quality Management District

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 013-0139b; FRL-6322-3]

Approval and Promulgation of Implementation Plans; California

State Implementation Plan, San Joaquin Valley Unified Air Pollution

Control District; South Coast Air Quality Management District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing a limited approval and limited disapproval of

revisions to the California State Implementation Plan (SIP) which

concern the control of particulate matter (PM) from open burning. The

intended effect of proposing limited approval and limited disapproval

of these rules is to regulate PM emissions in accordance with the

requirements of the Clean Air Act, as amended in 1990 (CAA or the Act).

EPA's final action on this proposed rule will incorporate these rules

into the federally approved SIP for San Joaquin Valley Unified Air

Pollution Control District (SJVUAPCD) and South Coast Air Quality

Management District (SCAQMD). EPA has evaluated SJVUAPCD Rule 4103 and

SCAQMD Rule 444 and is proposing a simultaneous limited approval and

limited disapproval under provisions of the CAA regarding EPA action on

SIP submittals and general rulemaking authority. These revisions, while

strengthening the SIP or maintaining the SIP's control strategy, do not

fully meet the CAA provisions regarding plan submissions and

requirements for nonattainment areas. In this action, EPA also is

proposing full approval of SCAQMD Rule 208 for incorporation into the

California SIP. EPA has evaluated this rule and determined that it is

consistent with the CAA and EPA regulations and will maintain the SIP's

control strategy.

DATES: Comments must be received on or before May 12, 1999.

ADDRESSES: Comments may be mailed 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 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:

Environmental Protection Agency, Air Docket (6102), 401 ``M'' Street,

S.W., Washington, D.C. 20460

California Air Resources Board, Stationary Source Division, Rule

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

San Joaquin Valley Unified Air Pollution Control District, 1990 East

Gettysburg Street, Fresno, CA 93726

South Coast Air Quality Management District, 21865 East Copley Drive,

Diamond Bar, CA 91765

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 limited approval and limited

disapproval into the California SIP are SJVUAPCD Rule 4103, Open

Burning (amended December 16, 1993) and SCAQMD Rule 444, Open Fires

(amended October 2, 1987). SJVUAPCD Rule 4103 was submitted by the

State of California to EPA on May 24, 1994. SCAQMD Rule 444 was

submitted by the State of California to EPA on March 23, 1988.

The rule being for proposed for full approval into the California

SIP is SCAQMD Rule 208, Permit for Open

[[Page 17590]]

Burning (amended January 5, 1990). SCAQMD Rule 208 was submitted by the

State of California to EPA on May 13, 1991.

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), that included the San

Joaquin Valley Planning Area and South Coast Air Basin (43 FR 8964; 40

CFR 81.305). 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. Public Law 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 or serious pursuant to section 188(a).

The San Joaquin Valley Planning Area (now under the SJVUAPCD), the

South Coast Air Basin (under the SCAQMD), and the Coachella Valley

Planning Area (now under the SCAQMD) were among the areas designated

nonattainment.

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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. This action is part of California's efforts to achieve

compliance with the 1987 PM-10 standards.

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On February 8, 1993, EPA classified four nonattainment areas as

serious nonattainment, including the San Joaquin Valley Planning Area,

the South Coast Air Basin, and the Coachella Valley Planning Area in 58

FR 3334 (January 1, 1993). This Federal Register action for SCAQMD

excludes the Los Angeles County portion of the Southeast Desert AQMA,

otherwise known as the Antelope Valley Region in Los Angeles County,

which is now under the jurisdiction of the Antelope Valley Air

Pollution Control District, as of July 1, 1997.2

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\2\ The State has recently changed the names and boundaries of

the air basins located within the southeast Desert Modified AQMA.

Pursuant to State regulation, the Coachella-San Jacinto Planning

Area is now part of the Salton Sea Air Basin (California Code of

Regulations, Title 17, 60114); the Victor Valley/Barstow Region in

San Bernardino County and the Antelope Valley Region in Los Angeles

County are now a part of the Mojave Desert Air Basin (California

Code of Regulations, Title 17, 60109). In addition, in 1996 the

California Legislature established a new local agency, the Antelope

Valley Air Pollution Control District, to have the responsibility

for local air pollution planning and measures in the Antelope Valley

Region (California Health & Safety Code, 40406).

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Section 189(a) of the CAA requires moderate PM-10 nonattainment

areas to adopt reasonably available control measures (RACM), including

reasonably available control technology (RACT) for stationary sources

of PM-10. Section 189(b) of the CAA requires serious nonattainment

areas with significant PM-10 sources to adopt best available control

measures (BACM), including best available control technology (BACT).

SCAQMD and SJVUAPCD are serious PM-10 nonattainment areas. SCAQMD has

not identified Open Burning as a significant PM-10 source in their PM-

10 BACM Plan, so EPA will evaluate the SCAQMD rules against RACM

requirements. If the SCAQMD BACM Plan should be disapproved, EPA may

require SCAQMD to submit additional Open Burning provisions to meet

BACM requirements. SJVUAPCD has not identified Open Burning as a non-

significant PM-10 source in their BACM Plan, so EPA will evaluate the

SJVUAPCD rule against RACM and BACM requirements. However, EPA may

identify additional BACM requirements for Open Burning upon review of

the SJVUAPCD BACM Plan at a later date.

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 rules being acted on in this document.

This document addresses EPA's proposed action for SJVUAPCD Rule 4103,

Open Burning, SCAQMD Rule 444, Open Fires, and SCAQMD Rule 208, Permit

for Open Burning. SJVUAPCD Rule 4103 was amended December 16, 1993,

submitted by the State of California for incorporation into the SIP on

May 24, 1994, and found to be complete on July 14, 1994, pursuant to

EPA's completeness criteria that are set forth in 40 CFR part 51,

appendix V.3 SCAQMD Rule 444, was amended October 2, 1987,

and submitted by the State of California for incorporation into the SIP

on March 23, 1988. SCAQMD Rule 208 was amended January 5, 1990,

submitted by the State of California for incorporation into the SIP on

May 13, 1991, and found to be complete on July 10, 1991. The following

is EPA's evaluation and proposed action for these rules.

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\3\ 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 are enforceable

and strengthen the SIP or maintain the SIP's control strategy.

The statutory provisions relating to RACM and BACM are discussed in

EPA's ``General Preamble,'' which give the Agency's preliminary views

on how EPA intends to act on SIPs submitted under Title I of the CAA.

See 57 FR 13498 (April 16, 1992), 57 FR 18070 (April 28, 1992), and 59

FR 41998 (August 16, 1994). In this proposed action, EPA is evaluating

SCAQMD rules to determine if they fulfill the RACM requirements of CAA

section 189(a) and is evaluating SJVUAPCD rules to determine if they

fulfill the BACM requirements of CAA section 189(b).

For the purpose of assisting state and local agencies in developing

RACM and BACM rules, EPA prepared a series of technical guidance

documents on PM-10 source categories (See CAA section 190). The RACM

guidance applicable to these rules is entitled, ``Appendix C3--

Prescribed Burning Control Measures'' (57 FR 18072). The BACM guidance

applicable to these rules is entitled, ``Prescribed Burning Background

Document and Technical Information Document for Best Available Control

Measures' (EPA-450/2-92-003).

Submitted SJVUAPCD Rule 4103 replaces 25 rules in the existing SIP

for the eight counties that now comprise the SJVUAPCD. SJVUAPCD Rule

4103 regulates open burning and reduces PM emissions. Although SJVUAPCD

Rule 4103 strengthens the SIP by combining and unifying the rules of

eight counties and by eliminating the exemption for one- and two-family

dwellings to burn residential rubbish, EPA has determined that SJVUAPCD

Rule 4103 does not meet the requirements of RACM and BACM by allowing

exemptions for eight burning activities that could be limited to

Permissive-Burn Days. Rule 4103 also does not meet the requirements of

BACM for Prescribed Burning (including Agricultural Burning, Forest

Management Burning, Range Improvement Burning, and Wildland Vegetation

Management Burning) to require burner training, to require emission

reduction techniques, to require a smoke management plan, and

[[Page 17591]]

to require the second level of smoke dispersion evaluation during the

day (the first level is the initial evaluation at the begining of the

day).

Submitted SCAQMD Rule 444 regulates open burning and reduces PM

emissions. On July 6, 1982, EPA approved into the SIP a version SCAQMD

Rule 444, Open Fires, that had been adopted by the District on October

2, 1981. Although the submitted SCAQMD Rule 444 will strengthen the SIP

by requiring an approved implementation plan for Wildland Vegetation

Management burning, EPA has determined that SCAQMD Rule 444 does not

meet the requirements of RACM for Prescribed Burning, because the rule

does not base approval of a burn on an evaluation of an airshed's

capacity to disperse PM-10 emissions from all types of Open Burning and

Prescribed and other PM-10 sources, to encourage burner training by

offering incentives, and to encourage the use of emission reduction

techniques by offering incentives.

There is currently no version of the SCAQMD Rule 208, Permit for

Open Burning, in the SIP. Rule 208 requires a written permit to conduct

Open Burning pursuant to SCAQMD Rule 444, Open Fires. EPA has evaluated

the submitted SCAQMD Rule 208 and has determined that it is consistent

with the CAA, EPA regulations, and meets the criteria for RACM in the

General Preamble. EPA proposes full approval of SCAQMD Rule 208 into

the California SIP.

A detailed list of rules to be replaced and a discussion of rule

deficiencies can be found in the Technical Support Documents for

SJVUAPCD Rule 4103 and SCAQMD Rule 444, which are available from the

U.S. EPA's Region IX office.

Because of the above deficiencies, EPA cannot grant full approval

of SJVUAPCD Rule 4103 and SCAQMD Rule 444 under section 110(k)(3) and

part D. Also, because the submitted rules are not composed of separable

parts that meet all the applicable requirements of the CAA, EPA cannot

grant partial approval of the rules under section 110(k)(3). However,

EPA may grant a limited approval of the submitted rules under section

110(k)(3) in light of EPA's authority pursuant to section 301(a) to

adopt regulations necessary to further air quality by strengthening the

SIP. In order to strengthen the SIP, EPA is proposing a limited

approval of SJVUAPCD Rule 4103, Open Burning and SCAQMD Rule 444, Open

Fires, under sections 110(k)(3) and 301(a) of the CAA.

At the same time, EPA is also proposing a limited disapproval of

SJVUAPCD Rule 4103 and SCAQMD Rule 444, because they contain

deficiencies, and, as such, the rules do not fully meet the

requirements of part D of the Act. Under section 179(a)(2), if the

Administrator disapproves a submission under section 110(k) for an area

designated nonattainment, based on the submission's failure to meet one

or more of the elements required by the Act, the Administrator must

apply one of the sanctions set forth in section 179(b) unless the

deficiency has been corrected within 18 months of such disapproval.

Section 179(b) provides two sanctions available to the Administrator:

Highway funding and offsets. The 18-month period referred to in section

179(a) will begin on the effective date of EPA's final limited

disapproval. Moreover, the final disapproval triggers the Federal

implementation plan (FIP) requirement under section 110(c). It should

be noted that the rules covered by this limited disapproval have been

adopted by SJVUAPCD and SCAQMD and are currently in effect in SJVUAPCD

and SCAQMD, respectively. EPA's final limited disapproval action will

not prevent SJVUAPCD, SCAQMD, or EPA from enforcing these rules.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any state 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.

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 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 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

[[Page 17592]]

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.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by

reference, Intergovernmental relations, Particulate matter, Reporting

and recordkeeping requirements.

Authority: U.S.C. 7401 et seq.

Dated: March 22, 1999.

Alexis Strauss,

Acting Regional Administrator, Region IX.

[FR Doc. 99-8949 Filed 4-9-99; 8:45 am]

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