[Federal Register: March 8, 2005 (Volume 70, Number 44)]
[Rules and Regulations]
[Page 11123-11125]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08mr05-9]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 311-0471a; FRL-7878-3]


Revisions to the California State Implementation Plan, Kern
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
Kern County Air Pollution Control District (KCAPCD) portion of the
California State Implementation Plan (SIP). The revisions concern the
emission of particulate matter (PM-10) from wood combustion and the
recision of a rule exempting wet plumes from opacity standards. We are
approving the incorporation of a local rule and recision of a rule that
administer regulations and regulate emission sources under the Clean
Air Act as amended in 1990 (CAA or the Act).

DATES: This rule is effective on May 9, 2005, without further notice,
unless EPA receives adverse comments by April 7, 2005. If we receive
such comments, we will publish a timely withdrawal in the Federal
Register to notify the public that this direct final rule will not take
effect.

ADDRESSES: Mail or e-mail comments to Andy Steckel, Rulemaking Office
Chief (AIR-4), U.S. Environmental Protection Agency, Region IX, 75

http://www.regulations.gov.

    You can inspect a copy 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 a copy 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.
    Kern County Air Pollution Control District, 2700 ``M'' Street,
Suite 302, Bakersfield, CA 93301.
    A copy of the rules may also be available via the Internet at
http://www.arb.ca.gov/drdb/drdbltxt.htm. Please be advised that this is

not an EPA Web site and may not contain the same version of the rules
that were submitted to EPA.

FOR FURTHER INFORMATION CONTACT: Al Petersen, Rulemaking Office (AIR-
4), U.S. Environmental Protection Agency, Region IX, (415) 947-4118 or 
petersen.alfred@epa.gov.


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 are the Purposes of the 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. Statutory and Executive Order Reviews

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).

                                            Table 1.--Submitted Rules
----------------------------------------------------------------------------------------------------------------
                             Rule < greek-
        Local agency              i>                Rule title                      Action            Submitted
----------------------------------------------------------------------------------------------------------------
KCAPCD.....................          403  General Limitations on the      11/29/93 Rescinded.......     03/29/94
                                           Discharge of Air Contaminants.

[[Page 11124]]


KCAPCD.....................        416.1  Wood Burning Heaters and Wood   07/08/04 Adopted.........     09/23/04
                                           Burning Fireplaces.
----------------------------------------------------------------------------------------------------------------

    On June 3, 1994, the recision submittal of KCAPCD Rule 403 was
found to meet the completeness criteria in 40 CFR part 51, appendix V,
which must be met before formal EPA review. On October 18, 2004, the
submittal of KCAPCD Rule 416.1 was found to meet the completeness
criteria.

B. Are There Other Versions of These Rules?

    Rule 403 was originally submitted on June 30, 1972 and approved on
September 22, 1972 (37 FR 19812). There is no version of Rule 416.1 in
the SIP.

C. What Are the Purposes of the Submitted Rule Revisions?

    PM-10 harms human health and the environment. Section 110(a) of the
CAA requires states to submit regulations that control PM-10 emissions.
    The purpose of the recision of Rule 403 is as follows:
     To simplify the SIP by incorporating the exemption for wet
plumes into KCAPCD Rule 401, Visible Emissions.
    The purpose of Rule 416.1 is as follows:
     To minimize the emissions of PM-10, organic gases, and
carbon monoxide from wood burning fireplaces in new housing
subdivisions and wood burning heaters throughout East Kern County by
(a) prohibiting the sale or transfer of a new or used wood burning
heater unless it is EPA Phase II-certified or rendered permanently
inoperable or is pellet-fueled and by (b) prohibiting installation of
new wood burning fireplaces in a residential subdivision with more than
10 homes.

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), must require reasonably available control measures (RACM),
including reasonably available control technology (RACT) in moderate
PM-10 nonattaiment areas (see section 189(a)), and must not relax
existing requirements (see sections 110(l) and 193). A portion of
KCAPCD was designated the Indian Wells Valley moderate PM-10
nonattainment area. However, this area was redesignated PM-10
attainment on May 7, 2003 (68 FR 24368). The redesignation action did
not rely on Rule 416.1 to achieve attainment. Therefore, we conclude
that submitted Rule 416.1 need not fulfill the requirements of RACM/
RACT.
    The following guidance documents were used for reference.
     Requirements for Preparation, Adoption, and Submittal of
Implementation Plans, U.S. EPA, 40 CFR part 51.
     PM-10 Guideline Document (EPA-452/R-93-008).

B. Do the Rules Meet the Evaluation Criteria?

    Rule 416.1 improves the SIP by regulating a source category not
previously regulated. We believe that Rule 416.1 is consistent with the
relevant policy and guidance regarding enforceability and SIP
relaxations and should be approved. The recision of Rule 403 does not
relax the SIP and should be approved.
    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 Rule 416.1 and the recision of Rule 403, because we believe
these actions fulfill all relevant requirements. We do not think anyone
will object to this approval, 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
actions. If we receive adverse comments by April 7, 2005, 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 May 9, 2005.
This will incorporate Rule 416.1 into and rescind Rule 403 from 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. Statutory and Executive Order Reviews

    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 13211,
``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 Clean
Air Act. 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),

[[Page 11125]]

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 Clean Air Act. 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 Clean Air Act. 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 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 May 9, 2005. 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: February 8, 2005
Karen Schwinn,
Acting Regional Administrator, Region IX.

0
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart F--California

0
2. Section 52.220 is amended by adding paragraphs (c)(6)(vi)(E) and
(c)(334) to read as follows:


Sec.  52.220  Identification of plan.

* * * * *
    (c) * * *
    (6) * * *
    (vi) * * *
    (E) Previously approved on September 22, 1972 in paragraph (c)(6)
of this section and now deleted without replacement Rule 403 (Southeast
Desert).
* * * * *
    (334) New and amended regulations for the following APCDs were
submitted on September 23, 2004, by the Governor's designee.
    (i) Incorporation by reference.
    (A) Kern County Air Pollution Control District.
    (1) Rule 416.1, adopted on July 8, 2004.

[FR Doc. 05-4340 Filed 3-7-05; 8:45 am]

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