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Revisions to the California State Implementation Plan, San Joaquin Valley Unified Air Pollution Control District
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[Federal Register: February 27, 2002 (Volume 67, Number 39)]
[Rules and Regulations]
[Page 8894-8897]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27fe02-12]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA 250-0317a; FRL-7145-8]
Revisions to the California State Implementation Plan, San
Joaquin Valley Unified 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 a revision to the
San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD)
portion of the California State Implementation Plan (SIP). This
revision concerns the emission of particulate matter (PM-10) from open
burning, prescribed burning, and hazard reduction burning. We are
approving local rules that regulate this emission source under the
Clean Air Act as amended in 1990 (CAA or the Act).
DATES: This rule is effective on April 29, 2002 without further notice,
unless EPA receives adverse comments by March 29, 2002. If we receive
such comments, we will publish a timely withdrawal in the Federal
Register to notify the public that this rule will not take effect.
ADDRESSES: Mail comments to Andy Steckel, Rulemaking Office Chief (AIR-
4), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne
Street, San Francisco, CA 94105.
You can inspect copies of the submitted rule revisions and EPA's
technical support document (TSD) at our Region IX office during normal
business hours. You may also see copies of the submitted rule revisions
and TSD at the following locations:
Environmental Protection Agency, Air Docket (6102), Ariel Rios
Building, 1200 Pennsylvania Avenue, NW., Washington DC 20460.
California Air Resources Board, Stationary Source Division, Rule
Evaluation Section, 1001 ``I'' Street, Sacramento, CA 95814.
San Joaquin Valley Unified Air Pollution Control District, 1990 East
Gettysburg Street, Fresno, CA 93726.
FOR FURTHER INFORMATION CONTACT: Al Petersen, Rulemaking Office (AIR-
4), U.S. Environmental Protection Agency, Region IX; (415) 947-4118.
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 is the purpose 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. Public comment and final action
III. Background Information
Why was this rule submitted?
IV. Administrative Requirements
I. The State's Submittal
A. What Rules Did the State Submit?
Table 1 lists the rules we are approving with the date that they
were adopted by the local air agency and submitted by the California
Air Resources Board (CARB).
[[Page 8895]]
Table 1.--Submitted Rules
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Local agency Rule # Rule title Adopted Submitted
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SJVUAPCD............................. 4103 Open Burning........................ 06/21/01 10/30/01
SJVUAPCD............................. 4106 Prescribed Burning and Hazard 06/21/01 10/30/01
Reduction Burning.
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On January 18, 2002, this submittal was found to meet the
completeness criteria in 40 CFR part 51, appendix V, which must be met
before formal EPA review.
B. Are There Other Versions of These Rules?
We approved into the SIP on July 26, 2000 (65 FR 45912) a version
of Rule 4103, adopted on December 16, 1993. Rule 4106 is a new rule.
C. What Is the Purpose of the Submitted Rule Revisions?
The purpose of the submitted revised Rules 4103 and 4106 are to
remedy the deficiencies cited in the limited approval of Rule 4103 on
July 26, 2000 (65 FR 45912).
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). 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). SJVUAPCD is
a serious PM-10 nonattainment area and must meet the requirements of
BACM/BACT. BACM/BACT is not required for source categories that are not
significant (de minimus) and there are no major sources. See Addendum
to the General Preamble for the Implementation of Title I of the Clean
Air Act Amendments of 1990, 59 FR 41998 (August 16, 1994).
The following guidance documents were used for reference:
Requirements for Preparation, Adoption, and Submittal of
Implementation Plans, U.S. EPA, 40 CFR Part 51.
General Preamble Appendix C3--Prescribed Burning Control
Measures (57 FR 18072, April 28, 1992).
Prescribed Burning Background Document and Technical
Information Document for Best Available Control Measures (EPA-450/2-92-
003).
General Preamble for the Implementation of Title I of the
Clean Air Act Amendments of 1990, 57 FR 13498, 13540 (April 16, 1992).
Addendum to the General Preamble for the Implementation of
Title I of the Clean Air Act Amendments of 1990, 59 FR 41998 (August
16, 1994).
B. Do the Rules Meet the Evaluation Criteria?
We believe the rules are consistent with the relevant policy and
guidance regarding enforceability, SIP relaxations, and fulfilling
BACM/BACT. All of the deficiencies identified in our previous limited
approval and limited disapproval action on Rule 4103 have been
adequately addressed as follows:
(Burning to prevent an imminent fire hazard that cannot be
abated by other means should be done on a permissive-burn day.) The
exemption from all provisions of Rule 4103 for an imminent fire hazard
that cannot be abated by other means is still included in the rule and
could allow burning on a no-burn day. 4103.4.1.2. There is no exemption
for hazard reduction burning, which is allowed only on a permissive-
burn day. 4106.5.1.4. We concur with the District's argument that
burning allowed in the case of an imminent fire hazard could remedy a
dangerous fire hazard instead of waiting for a permissive-burn day and
is an appropriate measure. Hazard reduction burning is a less imminent
form of hazard, and it is appropriate to require such burning on a
permissive-burn day. The exemption for an imminent fire hazard fulfills
the requirements of BACM.
(Burning training should be done on permissive-burn days
or should be limited to a short time or small amount of fuel.) The
District has argued that it is very difficult to schedule personnel in
advance from different locations in a large District of eight counties
for training that coincides with a permissive-burn day, which often
does not occur for many consecutive days. We concur that the exemption
from the rule for fire-fighting training, which could allow burning on
no-burn days, is reasonable. However, the exemption was restricted to
require written authorization from the Air Pollution Control Officer
(APCO) for all necessary fire-fighting training activities and to
require that a burn plan be submitted and receive prior approval from
the APCO for any fire-fighting training activities not located at a
stationary fire-training facility. 4103.4.2.1 and 4103.6.2.1. This
restricted exemption for burning training fulfills the requirements of
BACM.
(The addition of the exemption to burn on no-burn days for
disease and pest prevention, where there is no reasonable alternative,
is a SIP relaxation.) The District argued that Rules 4103 and 4106 are
more stringent overall than the SIP rule given a limited approval/
limited disapproval, therefore this minor and unpredictable relaxation
does not violate section 110(l) of the CAA. We concur with the
District's argument that this exemption, which could allow burning on
no-burn days, is a necessary and appropriate measure for timely control
of unplanned natural infestations where there is no reasonable
alternative. This exemption is restricted to require that such burning
only be done after written authorization from the APCO. 4103.4.2. This
restricted exemption for disease and pest prevention fulfills the
requirements of BACM.
(Empty pesticide sacks should be burned on permissive-burn
days unless the source category is de minimums.) The exemption to burn
on no-burn days was expanded to include toxic substances other than
pesticides but to not include fertilizer sacks. 4103.4.3.1. The
District showed that this source category is almost de minimums, since
it accounts for only 1.4% of the total PM-10 emissions. They argue that
it is less hazardous to burn empty pesticide and hazardous material
sacks in the field where emptied than to transport and store them while
waiting to burn on a permissive-burn day. Furthermore, such burning is
still restricted by permit requirements and subject to the tonnage
allocation by the APCO to prevent an exceedance of the National Ambient
Air Quality Standards (NAAQS) even on a no-burn day. This restricted
exemption for empty pesticide and toxic material sacks fulfills the
requirements of BACM.
(Tumbleweeds should be burned with a permit on a
permissive-burn day.) This is implemented. 4103.5.8.
(Range improvement burning (a type of prescribed burning)
from January 1 to May 31 should occur on a permissive-burn day.) This
is implemented. 4106.4.9.5.
(Agricultural burning (a type of prescribed burning) for
growing crops or raising fowl or animals above 3,000 feet elevation
should occur on a permissive-
[[Page 8896]]
burn day.) This is implemented. 4106.4.9.5.
(Agricultural burning above 6,000 feet elevation should
occur on permissive-burn days.) This is implemented. 4106.4.9.5.
(Excessive Director's discretion in granting permission
for agricultural burning on no-burn days in the event of imminent and
substantial economic loss should be restricted by allowing only the
acreage to be burned as limited by meteorological conditions and
meeting the NAAQS.) Director's discretion for the exemption to burn in
the case of imminent and substantial economic loss, which could occur
on no-burn days, is restricted by limiting burning acreage to 200 acres
per county per day, by requiring a forecast by the District that the
NAAQS will be not be violated in downwind metropolitan areas, and by
requiring that burning not be prohibited by a fire agency for safety
reasons. 4103.4.3.3. This restricted exemption for imminent and
substantial economic loss fulfills the requirements of enforceability
and BACM.
(BACM may require an overall approach of approving burns
based on an evaluation of the airshed's capacity to disperse emissions
on permissive-burn days so that cumulative emissions from all burns and
PM-10 sources will not cause a violation of the NAAQS.) The District is
required to allocate burning based on predicted meteorological
conditions and whether the total tonnage to be emitted would allow the
volume of smoke and other contaminants to impact smoke sensitive areas
or create or contribute to an exceedance of the NAAQS. 4103.5.2 and
4106.4.2. This measure for an overall approach to allocation of burning
fulfills the requirements of BACM.
(BACM may require burner training.) Burner training in a
course approved by the APCO is required for prescribed burns over 10
acres. 4106.4.9.1. This measure for burner training fulfills the
requirements of BACM.
(BACM may require the use of the best emission reduction
efforts for prescribed burning and describing them in a smoke
management plan.) The use of various best management practices is
required. 4106.4.9. Extensive requirements for smoke management plans
are described. 4106.5.2. These measures for best emission reduction
efforts fulfill the requirements of BACM.
(BACM may include second level smoke evaluation, which
analyzes whether existing fires should be extinguished.) A land manager
must coordinate daily with the District or CARB for multi-day burns to
affirm that the burn project remains within the conditions specified in
the smoke management plan. 4106.4.9.2. Surveillance and contingency
plans are required for burns over 100 acres for actions to be taken if
smoke impacts occur in smoke-sensitive areas. 4106.5.2.3. A related
issue is whether to allow a naturally-ignited fire to continue in order
to achieve a resource benefit. Requirements regulating this issue are
provided. 4106.5.3. This measure fulfills the requirements of BACM.
An exemption was added that could allow burning paper raisin trays
on no-burn days. 4103.4.3.2. The District showed that this source
category is de minimus, since it accounts for only 0.32% of the PM-10
emissions during the two-month burning periods in each of years 1997-
1999. This exemption for paper raisin trays is not required to fulfill
the requirements of BACM. Rules 4103 and 4106 are more stringent
overall, therefore section 110(l) of the CAA is not violated.
An exemption was added that could allow burning of confiscated
contraband on no-burn days. The District argues that this PM-10 source
is de minimus. Furthermore, the relevant law enforcement agency must
submit a burn plan 15 days in advance to the APCO for approval.
4103.6.2.2. Also import of contraband from outside the District for
burning is prohibited. 4103.5.7.1. This exemption for confiscated
contraband is not required to fulfill the requirements of BACM. Rules
4103 and 4106 are more stringent overall, therefore section 110(l) of
the CAA is not violated.
The TSD has more information on our evaluation.
C. 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, so
we are finalizing the approval without proposing it in advance.
However, in the Proposed Rules section of this Federal Register, we are
simultaneously proposing approval of the same submitted rules. If we
receive adverse comments by March 29, 2002, 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 April 29, 2002. This will incorporate these
rules into the federally-enforceable SIP.
Please note that if EPA receives adverse comment on an amendment,
paragraph, or section of this direct final 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. Background Information
Why Was This Rule Submitted?
PM-10 harms human health and the environment. Section 110(a) of the
CAA requires states to submit regulations that control PM-10 emissions.
Table 2 lists some of the national milestones leading to the submittal
of local agency PM-10 rules.
Table 2.--PM-10 Nonattainment Milestones
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Date Event
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March 3, 1978................................ EPA promulgated a list of
total suspended
particulate (TSP)
nonattainment areas
under the Clean Air Act,
as amended in 1977. 43
FR 8964; 40 CFR 81.305.
July 1, 1987................................. EPA replaced the TSP
standards with new PM
standards applying only
up to 10 microns in
diameter (PM-10). 52 FR
24672.
November 15, 1990............................ Clean Air Act Amendments
of 1990 were enacted,
Pub. L. 101-549, 104
Stat. 2399, codified at
42 U.S.C. 7401-7671q.
November 15, 1990............................ PM-10 areas meeting the
qualifications of
section 107(d)(4)(B) of
the CAA were designated
nonattainment by
operation of law and
classified as moderate
pursuant to section
188(a). States are
required by section
110(a) to submit rules
regulating PM-10
emissions in order to
achieve the attainment
dates specified in
section 188(c).
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[[Page 8897]]
IV. Administrative Requirements
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 32111,
``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 (Public Law 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 CAA.
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 is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the CAA. 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 CAA. 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. 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.
804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by April 29, 2002. 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: January 31, 2002.
Wayne Nastri,
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 paragraph (c)(288) to read
as follows:
Sec. 52.220 Identification of plan.
* * * * *
(c) * * *
(288) New and amended regulations for the following APCDs were
submitted on October 30, 2001, by the Governor's designee.
(i) Incorporation by reference.
(A) San Joaquin Valley Unified Air Pollution Control District.
(1) Rules 4103 and 4106, adopted on June 21, 2001.
* * * * *
[FR Doc. 02-4526 Filed 2-26-02; 8:45 am]
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