Air Plan Approval; California; Los Angeles-South Coast Air Basin
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Issuing agencies
Abstract
The Environmental Protection Agency (EPA) is taking final action to approve a revision to the South Coast Air Quality Management District (SCAQMD or "District") portion of the California State Implementation Plan (SIP). We are also determining that the submitted SIP revision fulfills the District's and the State's commitment to adopt and submit a specific enforceable contingency measure to address Clean Air Act (CAA or "Act") requirements for the 2006 24-hour and 2012 annual national ambient air quality standards (NAAQS) for fine particulate matter (PM<INF>2.5</INF>) in the South Coast air basin.
Full Text
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<title>Federal Register, Volume 87 Issue 45 (Tuesday, March 8, 2022)</title>
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[Federal Register Volume 87, Number 45 (Tuesday, March 8, 2022)]
[Rules and Regulations]
[Pages 12866-12869]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-04761]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2021-0296; FRL-9386-01-R9]
Air Plan Approval; California; Los Angeles--South Coast Air Basin
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to approve a revision to the South Coast Air Quality Management
District (SCAQMD or ``District'') portion of the California State
Implementation Plan (SIP). We are also determining that the submitted
SIP revision fulfills the District's and the State's commitment to
adopt and submit a specific enforceable contingency measure to address
Clean Air Act (CAA or ``Act'') requirements for the 2006 24-hour and
2012 annual national ambient air quality standards (NAAQS) for fine
particulate matter (PM<INF>2.5</INF>) in the South Coast air basin.
DATES: This rule is effective on April 7, 2022.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R09-OAR-2021-0296. All documents in the docket are
listed on the <a href="https://www.regulations.gov">https://www.regulations.gov</a> website. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available through <a href="https://www.regulations.gov">https://www.regulations.gov</a>, or please
contact the person identified in the FOR FURTHER INFORMATION CONTACT
section for additional availability information. If you need assistance
in a language other than English or if you are a person with
disabilities who needs a reasonable accommodation at no cost to you,
please contact the person identified in the FOR FURTHER INFORMATION
CONTACT section.
FOR FURTHER INFORMATION CONTACT: Ginger Vagenas, EPA Region IX, 75
Hawthorne Street, San Francisco, CA 94105. By phone at (415) 972-3964
or by email at <a href="/cdn-cgi/l/email-protection#f88e999f9d96998bd69f91969f9d8ab89d8899d69f978e"><span class="__cf_email__" data-cfemail="baccdbdddfd4dbc994ddd3d4dddfc8fadfcadb94ddd5cc">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' refer to the EPA.
Table of Contents
I. Proposed Action
II. Public Comments and EPA Responses
III. Final Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews
I. Proposed Action
On May 20, 2021, the EPA proposed to approve all but paragraphs (g)
and (k) of the following rule into the California SIP.\1\
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\1\ 86 FR 27346.
Table 1--Rule Addressed by EPA Proposal
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Local agency Rule No. Rule Amended Submitted
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SCAQMD................ 445 Wood-Burning October 27, 2020.......... October 29, 2020.
Devices (except
paragraphs (g)
and (k)).
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[[Page 12867]]
We proposed to approve this rule, excluding paragraph (g) (Ozone
Contingency Measures) and paragraph (k) (Penalties), based on a
determination that it complies with CAA requirements for enforceability
and SIP revisions in CAA sections 110(a)(2) and 110(l) and fulfills
commitments that the State and District previously submitted to meet
the requirements of CAA section 110(k)(4). Our proposed action contains
more information on the rule and our evaluation.
II. Public Comments and EPA Responses
The EPA's proposed action provided a 30-day public comment period.
During this period, we received one comment letter from the Center for
Biological Diversity (CBD). We respond to CBD's comments below.
Comment 1: CBD stated that the EPA should consider the air
pollution impacts of the alternative sources of heat people use when a
curtailment is in effect. CBD claimed that ``it is arbitrary to assume
that people will simply go without heat when'' a curtailment for wood
burning devices is in effect and that ``[m]ost likely people will use
very inefficient heat devices like electric or propane space heaters''
as a replacement source of heat. CBD contended that the EPA ``must
consider the PM<INF>2.5</INF> emissions this substitute heating will
cause when qualifying the PM<INF>2.5</INF> reductions from this
contingency measure'' and must rely on the ``net savings'' (i.e., the
emissions reductions from wood stove curtailment minus the emissions
increase from replacement heat) in calculating the emissions reductions
from the contingency measure.
Response 1: These comments are outside the scope of this rule
because they pertain to the quantification of PM<INF>2.5</INF>
emissions reductions to be achieved by the submitted contingency
measure.\2\ We are not reevaluating in this action our bases for
concluding that Rule 445, if revised consistent with the District's
commitments, would satisfy the contingency measure requirements in CAA
section 172(c)(9) and 40 CFR 51.1014 for the 2006 and 2012
PM<INF>2.5</INF> NAAQS, as described in our July 2, 2020 proposal on
the 2016 PM<INF>2.5</INF> Plan. As we explained in our May 20, 2021
proposed rulemaking, our action is limited to approving Rule 445, as
amended October 27, 2020, into the SIP based on our conclusion that the
amended rule meets the requirements for enforceability and SIP
revisions in CAA sections 110(a)(2) and 110(l) and fulfills the State
and District commitments that provided the basis for our November 9,
2020 final rule conditionally approving the contingency measure element
of the 2016 PM<INF>2.5</INF> Plan.\3\ Comments pertaining to the
quantification of emissions reductions to be achieved by Rule 445 for
PM<INF>2.5</INF> contingency measure purposes are, therefore, outside
the scope of this rule.
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\2\ We assume the commenter's statement that the EPA must
consider the PM<INF>2.5</INF> emissions that substitute heating will
cause ``when qualifying the PM<INF>2.5</INF> reductions from this
contingency measure'' was intended to refer to the quantification of
the emission reductions to be achieved by the measure.
\3\ 86 FR 27346, 27348. We note that the Ninth Circuit Court of
Appeals recently remanded an EPA rulemaking that relied on a
rationale and interpretation of the contingency measure requirement
in CAA section 172(c)(9) that the court found to be arbitrary and
capricious. Ass'n of Irritated Residents v. EPA, 10 F.4th 937 (9th
Cir. August 26, 2021). The EPA is currently reviewing this decision,
evaluating our November 9, 2020 final action conditionally approving
the contingency measure element of the 2016 PM<INF>2.5</INF> Plan,
and considering what remedial steps are appropriate to comply with
CAA requirements in light of the decision.
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As we explained in our proposed rulemaking, we previously approved
portions of California's SIP submission to address the CAA's
``Moderate'' area requirements for the 2012 PM<INF>2.5</INF> NAAQS in
the South Coast nonattainment area (``2016 PM<INF>2.5</INF> Plan''). As
part of that action, the EPA conditionally approved the contingency
measure element of the 2016 PM<INF>2.5</INF> Plan as meeting the
applicable requirements of CAA section 172(c)(9) and 40 CFR 51.1014 for
the 2006 PM<INF>2.5</INF> NAAQS and the 2012 PM<INF>2.5</INF> NAAQS.\4\
Our conditional approval of the contingency measure element of the 2016
PM<INF>2.5</INF> Plan for these NAAQS was based on specific commitments
by the District and CARB to adopt and submit, within a specified
timeframe, revisions to District Rule 445 (``Wood Burning Devices''),
to lower the rule's mandatory curtailment threshold by specified
amounts upon any of the four EPA determinations (i.e., ``findings of
failure'') listed in 40 CFR 51.1014(a).\5\ Our proposed rulemaking to
approve and conditionally approve the 2016 PM<INF>2.5</INF> Plan for
purposes of these NAAQS, which published July 2, 2020, provided our
evaluation of the District's quantification of the emissions reductions
to be achieved by the specified revisions to Rule 445, and our
rationale for concluding that the State's timely submission of revised
Rule 445 would satisfy the contingency measure requirements in CAA
section 172(c)(9) and 40 CFR 51.1014 for the 2006 and 2012
PM<INF>2.5</INF> NAAQS.\6\ We received no public comments that were
germane to our proposal, and on November 9, 2020, we finalized this
proposal without change.\7\
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\4\ 86 FR 27346, 27347 (citing prior final action on 2016
PM<INF>2.5</INF> Plan at 85 FR 71264 (November 9, 2020)).
\5\ 86 FR 27346, 27348 (May 20, 2021).
\6\ 85 FR 40026, 40049-40050 (July 2, 2020).
\7\ 85 FR 71264, 71266 (November 9, 2020).
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The commenter's concern appears to rest on the assumption that
significant numbers of residents using wood-burning devices as their
sole source of residential heat \8\ will be compelled by the rule to
switch to more inefficient sources of residential heat. We have no
information indicating that the SIP revisions that we are approving
will result in such a large scale shift.\9\ Rule 445 entirely exempts
wood-burning devices used as the sole source of heat in a residential
or commercial property and wood-burning devices used in low-income
households from its curtailment provisions.\10\ Additionally, according
to the District, the additional number of No-Burn days resulting from
the June 5, 2020 amendments is expected to be small (about 12 days)
during the wood-burning season, and the cost impacts on the general
public are also expected to be minimal as wood-burning devices in the
South Coast air basin are primarily used ``for aesthetic purposes.''
\11\
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\8\ ``Sole source of heat'' is defined in Rule 445 as the only
permanent source of heat that is capable of meeting the space
heating needs of a household.
\9\ As a separate matter, we acknowledge and support
California's policy shift toward the usage of higher efficiency and
lower carbon technologies, such as heat pumps.
\10\ Rule 445 (as amended October 27, 2020), subdivision (i)
(exempting, inter alia, ``[r]esidential or commercial properties
where a wood-burning device is the sole source of heat'' and any
``low income household'' from the mandatory curtailment provisions
in subdivisions (e), (f), and (g)).
\11\ SCAQMD, ``Final Staff Report, Proposed Amended Rule 445--
Wood-Burning Devices,'' June 5, 2020, 19.
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Comment 2: CBD stated that the EPA must consider, in its Clean Air
Act section 110(l) analysis, ``all of the air pollution from the
replacement heating'' that people will use as a result of the wood-
burning curtailment provisions in Rule 445. For example, the commenter
stated, ``will the increased electric demand from electric replacement
heat cause or contribute to additional NO<INF>X</INF> NAAQS violations
near the fossil fuel burning peaking plants meeting this increased
demand.'' The commenter further asserted that ``[r]elying on monitoring
data to say [there] is no NO<INF>X</INF> problem would be arbitrary as
the NO<INF>X</INF> ambient monitoring network is woefully inadequate to
determine if peaking fossil plants are causing NO<INF>X</INF> [NAAQS]
violations.''
Response 2: We disagree with the commenter's suggestion that, for
[[Page 12868]]
purposes of the limited revisions to Rule 445 at issue in this action,
CAA section 110(l) requires the EPA to consider all of the air
pollution that might result from use of replacement heating sources due
to implementation of all of the curtailment provisions in Rule 445.
Section 110(l) of the CAA prohibits the EPA from approving a SIP
revision ``if the revision would interfere with any applicable
requirement concerning attainment and reasonable further progress'' or
any other applicable requirement of the CAA. As we explained in our
proposed rulemaking, the EPA approved an earlier version of Rule 445
into the SIP on September 26, 2013.\12\ On June 5, 2020, the District
amended Rule 445 to add lower mandatory wood-burning curtailment
provisions in subdivision (f) to be implemented as PM<INF>2.5</INF>
contingency measures upon a determination by the EPA that any of the
four failures listed under 40 CFR 51.1014(a) has occurred.\13\ The June
5, 2020 amendments to Rule 445 also extended the geographic scope of
the mandatory wood-burning curtailment provisions to the entire South
Coast air basin on any day for which the PM<INF>2.5</INF> forecast at a
``source receptor area'' (SRA) in the air basin exceeds the forecast
threshold.\14\ The District adopted further amendments pertaining to
ozone contingency measures on October 27, 2020, which the EPA is not
acting on at this time, but retained the Rule 445 amendments adopted
June 5, 2020, unchanged.\15\ Thus, the only SIP revisions that we are
approving are those amended provisions of Rule 445 initially adopted on
June 5, 2020, and retained in the October 27, 2020 amended rule--i.e.,
the new PM<INF>2.5</INF> contingency measure provisions in subdivision
(f) and the extension of the wood-burning curtailment provisions to
apply basin-wide. Section 110(l) of the CAA requires the EPA to
consider whether these particular SIP revisions would interfere with
any applicable requirement concerning attainment and reasonable further
progress or any other applicable requirement of the CAA; it does not
require the EPA to consider all of the air pollution that may result
from changes in behavior that may or may not be caused by the
District's implementation of the rule as a whole.\16\
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\12\ 78 FR 59249 (final rule approving Rule 445, as amended May
3, 2013, into California SIP).
\13\ 86 FR 27346, 27347-27348 (May 20, 2021).
\14\ The SIP-approved version of Rule 445 (as amended May 3,
2013) applied the wood-burning curtailment basin-wide only when the
``source receptor area'' (SRA) where the PM<INF>2.5</INF> forecast
exceeded the forecast threshold also contained ``a monitoring
station that has recorded a violation of the 2006 24-hour
PM<INF>2.5</INF> NAAQS for either of the two previous three-year
design value periods.'' Rule 445 (as amended May 3, 2013),
subdivision (6)(B). In all other situations, the wood-burning
curtailment applied only in specific SRAs. Id.
\15\ The EPA is not acting at this time on the new provisions
addressing ozone contingency measures in subdivision (g) of Rule 445
that the District adopted on October 27, 2020. 86 FR 27346, 27347.
\16\ We note also that implementation of revised Rule 445 is not
likely to cause a largescale shift to inefficient heating devices
given the exemptions in Rule 445. See Response 1.
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The June 5, 2020 amendments to Rule 445 strengthen the SIP by
lowering the forecast threshold by 1 microgram per meter cubed each
time the PM<INF>2.5</INF> contingency measure provisions in subdivision
(f) are triggered and by prohibiting the use of wood-burning devices
basin-wide, rather than only in specific SRAs, whenever the
PM<INF>2.5</INF> forecast at any SRA in the air basin exceeds the
forecast threshold. The commenter provides no specific support for the
claim that these strengthened aspects of Rule 445 will ``interfere with
any applicable requirement concerning attainment and reasonable further
progress'' or any other applicable requirement of the CAA. Given the
incremental PM<INF>2.5</INF> emissions reductions expected to result
from the District's revisions to Rule 445, and the absence of any
information in the record indicating that implementation of the revised
rule will adversely affect air quality or otherwise interfere with CAA
requirements with respect to the PM<INF>2.5</INF> NAAQS, we find this
SIP revision an improvement to the SIP for this area.
The commenter's concern appears to relate not to the
PM<INF>2.5</INF> NAAQS, but rather to the NO<INF>2</INF> NAAQS, and
potential adverse consequences in the vicinity of electric generating
units that could result from increased electricity generation due to
these revisions to Rule 445. The commenter did not provide any support
for the premise that these specific revisions to Rule 445 would
materially elevate NO<INF>X</INF> emissions in the South Coast air
basin or elsewhere, and the EPA does not anticipate that this would
occur as a result of the additional wood-burning curtailment that may
be required if the contingency measure provisions in Rule 445 are
triggered in the future, given the exemptions in Rule 445. See Response
1.
Finally, comments about the adequacy of the NO<INF>2</INF> ambient
monitoring network in the South Coast air basin are also outside the
scope of this action. As we explained in the proposed rulemaking, we
evaluated Rule 445, as amended October 27, 2020, solely for purposes of
determining whether it meets the requirements for enforceability and
SIP revisions in CAA sections 110(a)(2) and 110(l) and determining
whether the State and District fulfilled the commitments that provided
the basis for our conditional approval of the contingency measure
element of the 2016 PM<INF>2.5</INF> Plan for purposes of the
PM<INF>2.5</INF> NAAQS.\17\ Comments about the NO<INF>X</INF> ambient
monitoring network and potential violations of the NO<INF>2</INF>
NAAQS, therefore, are not germane to this rule.
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\17\ 86 FR 27346, 27348.
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The EPA notes, however, that it has separately approved the
District's 2020 annual network plan submitted to satisfy the
requirements in 40 CFR part 58 pertaining to NO<INF>2</INF> air quality
monitors.\18\ Additionally, the EPA recently conducted a technical
systems audit of the SCAQMD's ambient air quality monitoring program,
including network management, field operations, quality assurance, and
data management procedures, and found no deficiencies in the
NO<INF>2</INF> monitoring network.\19\
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\18\ Letter dated October 28, 2020, from Gwen Yoshimura, EPA
Region IX, to Dr. Matt Miyasato, SCAQMD.
\19\ Letter dated March 17, 2021, from Elizabeth Adams, EPA,
Region IX, to Dr. Matt Miyasato, SCAQMD, and EPA Region IX,
``Technical Systems Audit of the Ambient Air Monitoring Program:
South Coast Air Quality Management District June 1-5, 2020,'' March
2021.
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III. Final Action
No comments were submitted that change our assessment of the rule
as described in our proposed action. Therefore, as authorized in
section 110(k)(3) of the Act, the EPA is fully approving this rule,
except paragraph (g) (Ozone Contingency Measures) and paragraph (k)
(Penalties), into the California SIP. The October 27, 2020 version of
Rule 445 will replace the previously approved version of this rule in
the SIP. We have determined that the submitted SIP revision fulfills
the District's and the State's commitment to adopt and submit a
specific enforceable contingency measure to address CAA requirements
for the 2006 24-hour fine PM<INF>2.5</INF> NAAQS and the 2012 annual
PM<INF>2.5</INF> NAAQS in the South Coast air basin and, on that basis,
we are converting our November 9, 2020 conditional approval to a full
approval.
IV. Incorporation by Reference
In this rule, the EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with requirements of 1 CFR
51.5, the EPA is finalizing the incorporation by reference of the South
Coast Air Quality Management District rule described in the amendments
to 40 CFR part 52 set forth below. The EPA has made, and will continue
to make,
[[Page 12869]]
these documents available through <a href="http://www.regulations.gov">www.regulations.gov</a> and at the EPA
Region IX Office (please contact the person identified in the FOR
FURTHER INFORMATION CONTACT section of this preamble for more
information).
V. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, the EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
<bullet> Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
<bullet> Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
<bullet> Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
<bullet> Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
<bullet> Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
<bullet> Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
<bullet> Does not provide the EPA with the discretionary authority
to address, as appropriate, disproportionate human health or
environmental effects, using practicable and legally permissible
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where the EPA or an Indian tribe
has demonstrated that a tribe has jurisdiction. In those areas of
Indian country, the rule does not have tribal implications and will not
impose substantial direct costs on tribal governments or preempt tribal
law as specified by Executive Order 13175 (65 FR 67249, November 9,
2000).
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. The EPA will submit a report containing this action 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, 2022. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action 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.
Authority: 42 U.S.C. 7401 et seq.
Dated: March 2, 2022.
Martha Guzman Aceves,
Regional Administrator, Region IX.
For the reasons stated in the preamble, the EPA amends 40 CFR part
52 as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
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)(430)(i)(A)(3) and
(c)(570), to read as follows:
Sec. 52.220 Identification of plan-in part.
* * * * *
(c) * * *
(430) * * *
(i) * * *
(A) * * *
(3) Previously approved on September 26, 2013 in paragraph
(c)(430)(i)(A)(2) of this section and now deleted with replacement in
(c)(570)(i)(A)(1), Rule 445, ``Wood Burning Devices,'' adopted on May
3, 2013.
* * * * *
(570) An amended regulation for the following APCD was submitted on
October 29, 2020 by the Governor's designee as an attachment to a
letter dated October 29, 2020.
(i) Incorporation by reference. (A) South Coast Air Quality
Management District.
(1) Rule 445, ``Wood-Burning Devices,'' amended on October 27,
2020, except paragraph (g), ``Ozone Contingency Measures,'' and
paragraph (k), ``Penalties.''
(2) [Reserved]
(B) [Reserved]
(ii) [Reserved]
Sec. 52.248 [Amended]
0
3. Section 52.248 is amended by removing and reserving paragraph (k).
[FR Doc. 2022-04761 Filed 3-7-22; 8:45 am]
BILLING CODE 6560-50-P
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</html>This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.