Approval and Promulgation of Implementation Plans; Arizona State Implementation Plan Revision, Maricopa County

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AZ 059-0011; FRL-5988-9]

Approval and Promulgation of Implementation Plans; Arizona State

Implementation Plan Revision, Maricopa County

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing limited approval and limited disapproval of

revisions to the Arizona State Implementation Plan (SIP) proposed in

the Federal Register on February 9, 1998. This final action will

incorporate these rules into the federally approved SIP. The intended

effect of finalizing this action is to regulate emissions of

particulate matter (PM) in accordance with the requirements of the

Clean Air Act, as amended in 1990 (CAA or the Act). The revised rules

control PM emissions from residential wood combustion. Thus, EPA is

finalizing simultaneous limited approval and limited disapproval under

CAA provisions regarding EPA action on SIP submittals and general

rulemaking authority because these revisions, while strengthening the

SIP, also do not fully meet the CAA provisions regarding plan

submissions and requirements for nonattainment areas. As a result of

this limited disapproval EPA will be required to impose highway funding

or emission offset sanctions under the CAA unless the State submits and

EPA approves corrections to the identified deficiencies within 18

months of the effective date of this disapproval. Moreover, EPA will be

required to promulgate a Federal implementation plan (FIP) unless the

deficiencies are corrected within 24 months of the effective date of

this disapproval.

EFFECTIVE DATE: This action is effective on April 30, 1998.

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

Arizona Department of Environmental Quality, Air Quality Division, 3033

North Central Avenue, Phoenix, AZ 85012

Maricopa County Environmental Services Division, Air Quality Division,

1001 North Central Avenue, #201, Phoenix, AZ 85004

FOR FURTHER INFORMATION CONTACT: Patricia A. Bowlin, Rulemaking Office,

AIR-4, Air Division, U.S. Environmental Protection Agency, Region IX,

75 Hawthorne Street, San Francisco, CA 94105-3901, Telephone: (415)

744-1188.

SUPPLEMENTARY INFORMATION:

I. Applicability

The rules being approved into the Arizona SIP are Maricopa County

(Maricopa) Rule 318, Approval of Residential Woodburning Devices, and

the Maricopa Residential Woodburning Restriction Ordinance (Woodburning

Ordinance). These rules were submitted by the Arizona Department of

Environmental Quality (ADEQ) to EPA on August 31, 1995.

II. Background

On February 9, 1998 in 63 FR 6505, EPA proposed granting limited

approval and limited disapproval into the Arizona SIP of the following

rules: Maricopa Rule 318 and the Woodburning Ordiance. Rule 318 and the

Woodburning Ordinance were adopted by Maricopa Environmental Services

Department on October 5, 1994. These rules were adopted as part of

Maricopa's efforts to achieve the National Ambient Air Quality Standard

(NAAQS) for PM-10 and in response to CAA requirements. A detailed

discussion of the background for the rules and the nonattainment area

is provided in the proposed rule (PR) cited above.

EPA has evaluated the submitted rules for consistency with the

requirements of the CAA and EPA regulations and EPA's interpretation of

these requirements as expressed in the various EPA policy guidance

documents referenced in the PR. EPA is finalizing the limited approval

of these rules in order to strengthen the SIP. EPA is also finalizing

the limited disapproval requiring the correction of the following rule

deficiencies: inappropriate discretion by the Control Officer

(Director's discretion) in the approval of woodburning devices and

reference of non-EPA-approved woodburning device certification

procedures. A detailed discussion of the rule provisions and

evaluations has been provided in the PR and in the technical support

document (TSD) available at EPA's Region IX office (TSD dated January

1998).

III. Response to Public Comments

A 30-day public comment period was provided in 63 FR 6505. EPA

received comment letters on the PR from two parties: ADEQ and the

Hearth Products Association (HPA). The comments have been evaluated by

EPA and a summary of the comments and EPA's responses are set forth

below.

Comment

ADEQ comments that the reference in Rule 318 to non-EPA-approved

certification procedures for woodburning devices is necessary because

EPA's wood heater standards found in 40 CFR Part 60 Subpart AAA do not

apply to fireplaces and other woodburning technologies found in

Maricopa County. ADEQ believes that EPA cannot disapprove the use of

non-EPA procedures when EPA has neither developed federal certification

procedures nor approved locally-developed certification procedures for

clean woodburning technologies that are not addressed in Subpart AAA.

ADEQ states that EPA needs to approve the certification methodology so

that air pollution agencies can continue to address woodsmoke emissions

from devices not subject to EPA certification.

[[Page 15304]]

Comment

HPA comments that EPA's wood heater certification standards in

Subpart AAA do not address all woodburning devices and that the non-

EPA-approved testing and certification protocols referenced in

submitted Rule 318 are ``technically and legally appropriate'' for

evaluating woodburning devices not addressed by Subpart AAA. HPA notes

that EPA has approved Colorado's Regulation No. 4 which provides for

the approval of woodburning devices that are not addressed by EPA's

certification procedures. HPA states that certification protocols for

woodburning devices that are not subject to Subpart AAA provide

incentives for the development of clean woodburning technologies and

are necessary to avoid denial of access to key markets.

Response

EPA acknowledges that its certification standards in Subpart AAA do

not cover all woodburning technologies and that Maricopa's residential

wood combustion control program addresses woodburning devices that are

not covered by Subpart AAA. Certification standards for woodburning

devices can be approved into SIPs if they are submitted for approval to

EPA and are found by EPA to meet federal standards and criteria. For

example, the pellet stove certification procedure in Colorado

Regulation No. 4 adopted on June 24, 1993 was submitted to and approved

by EPA. 40 CFR 52.320(c)(82)(i)(A). Rule 318, however, references a

certification protocol that has never been submitted to EPA for review

and approval. For this reason and the director's discretion deficiency

discussed elsewhere in the PR, EPA cannot fully approve Maricopa Rule

318 and the associated Woodburning Ordinance.

IV. EPA Action

EPA is finalizing limited approval and limited disapproval of the

above-referenced rules. The limited approval of these rules is being

finalized 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. The approval is limited because EPA's action

also contains a simultaneous limited disapproval. In order to

strengthen the SIP, EPA is granting limited approval of these rules

under sections 110(k)(3) and 301(a) of the CAA. This action approves

the rules into the SIP as federally enforceable rules.

At the same time, EPA is finalizing limited disapproval of these

rules because they contain deficiencies, and, as such, the rules do not

fully meet the requirements of Part D of the Act. As stated in the PR,

upon the effective date of this FR, the 18-month clock for sanctions

and the 24-month FIP clock will begin. Sections 179(a) and 110(c). If

the State does not submit the required corrections and EPA does not

approve the submittal within 18 months of the FR, either the highway

sanction or the offset sanction will be imposed at the 18-month mark.

It should be noted that the rules covered by this FR have been adopted

by the Maricopa and are currently in effect in Maricopa County. EPA's

limited disapproval action will not prevent a Maricopa 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.

V. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from E.O. 12866 review.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

SIP approvals under sections 110 and 301, and subchapter I, part D

of the CAA do not create any new requirements but simply approve

requirements that the State is already imposing. Therefore, because the

Federal SIP approval does not impose any new requirements, I certify

that it does not have a significant impact on any small entities

affected. Moreover, due to the nature of the Federal-State relationship

under the CAA, preparation of a flexibility analysis would constitute

Federal inquiry into the economic reasonableness of State action. The

Clean Air Act forbids EPA to base its action 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).

C. 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

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 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

Federal requirements. Accordingly, no additional costs to State, local,

or tribal governments, or to the private sector, result from this

action.

D. Submission to Congress and the General Accounting Office

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).

E. 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 June 1, 1998.

[[Page 15305]]

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, Reporting and recordkeeping

requirements, Particulate matter.

Note: Incorporation by reference of the State Implementation

Plan for the State of Arizona was approved by the Director of the

Federal Register on July 1, 1982.

Dated: March 20, 1998.

Felicia Marcus,

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 D--Arizona

2. Section 52.120 is amended by adding paragraph (c)(82)(i)(D) to

read as follows:

Sec. 52.120 Identification of plan.

* * * * *

(c) * * *

(82) * * *

(i) * * *

(D) Rule 318 and Residential Woodburning Restriction Ordinance,

adopted on October 5, 1994.

* * * * *

[FR Doc. 98-8414 Filed 3-30-98; 8:45 am]

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