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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AZ 086-0018a; FRL-6468-6]

Approval and Promulgation of Implementation Plans; Arizona State

Implementation Plan Revision, Maricopa County

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action on revisions to the Arizona

State Implementation Plan. The revisions concern rules from Maricopa

County (Maricopa). The rules control particulate matter (PM) emissions

from residential wood combustion. This final approval action will

incorporate these rules into the federally approved SIP. In addition,

this action will serve as a final determination that deficiencies in

the rules (identified by EPA in a final limited approval/limited

disapproval action on March 31, 1998) have been corrected and that any

sanctions or Federal Implementation Plan (FIP) clocks are permanently

stopped. An Interim Final Determination published in today's Federal

Register will stay the imposition of sanctions until the effective date

of this action. The intended effect of approving these rules is to

regulate emissions of PM in accordance with the requirements of the

Clean Air Act, as amended in 1990 (CAA or the Act). Thus, EPA is

finalizing the approval of these rules into the Arizona SIP under

provisions of the CAA regarding EPA action on SIP submittals, SIPs for

national primary and secondary ambient air quality standards, and plan

requirements for nonattainment areas.

DATES: This rule is effective on January 7, 2000 without further

notice, unless EPA receives relevant adverse comments by December 8,

1999. If EPA receives such comments, then it will publish a timely

withdrawal in the Federal Register informing the public that this rule

will not take effect.

ADDRESSES: Comments must be submitted to Andrew Steckel at the Region

IX office listed below. 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

available for inspection at the following locations:

Rulemaking Office (AIR-4), Air Division, U.S. Environmental Protection

Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105

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

SW, Washington, DC 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 Bowlin, Rulemaking Office,

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

75 Hawthorne Street, San Francisco, CA 94105, Telephone: (415) 744-

1188.

SUPPLEMENTARY INFORMATION:

I. Applicability

The rules being approved into the Arizona SIP are Maricopa Rule

318, Approval of Residential Woodburning Devices, and the Maricopa

Residential Woodburning Restriction Ordinance. These rules were

submitted by the Arizona Department of Environmental Quality (ADEQ) to

EPA on August 4, 1999.

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 Maricopa

Association of Governments (MAG) Urban Planning Area (43 FR 8964; 40

CFR 81.303). 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

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November 15, 1990, amendments to the 1977 CAA were enacted. Pub. L.

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 pursuant

to section 188(a). The Phoenix Planning Area was among the areas

designated non-attainment. On June 10, 1996 EPA reclassified Phoenix

Planning Area from moderate to serious nonattainment pursuant to

section 188(b)(2). See 61 FR 21372 (May 10, 1996).

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\1\ On July 18, 1997 EPA promulgated revised PM-10 standards (62

FR 38651). On May 14, 1999, the U.S. Court of Appeals for the D.C.

Circuit in American Trucking Assoc., Inc., et al. v. USEPA, No. 97-

1440 issued an opinion that, among other things, vacated the 1997

standards for PM-10. The PM-10 standards promulgated on July 1,

1987, however, were not an issue in this litigation, and the Court's

decision does not affect the applicability of those standards.

Codification of the 1987 PM-10 standards continues to be recorded at

40 CFR 50.6. In the document promulgating the 1997 PM-10 standards,

the EPA Administrator decided that the previous PM-10 standards that

were promulgated on July 1, 1987, and provisions associated with

them, would continue to apply in areas subject to the 1987 PM-10

standards until certain conditions specified in 40 CFR 50.6(d) are

met. See 62 FR at 38701. EPA has not taken any action under 40 CFR

50.6(d) for this area. Today's proposed action relates only to the

CAA requirements concerning the PM-10 standards as originally

promulgated in 1987.

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

areas to adopt reasonably available control measures (RACM) for PM-10

and to submit these measures by November 15, 1991. Section 189(b)

requires serious non-attainment areas to adopt best available control

measures (BACM) rules and to submit these rules within 18 months of

reclassification.

In response to section 110(a) and Part D of the Act, the State of

Arizona submitted many PM-10 rules for incorporation into the Arizona

SIP on August 4, 1999, including the rules being acted on in this

document. This document addresses EPA's direct-final action for

Maricopa Rule 318, Approval of Residential Woodburning Devices, and the

Maricopa Residential Woodburning Restriction Ordinance (Woodburning

Ordinance). Maricopa adopted Rule 318 and the Woodburning Ordinance on

April 21, 1999. These submitted rules were found to be complete on

August 25, 1999 pursuant to EPA's completeness criteria that are set

forth in 40 CFR part 51 Appendix V 2 and are being finalized

for approval into the SIP.

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\2\ 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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Rule 318 and the Woodburning Ordinance control PM emissions from

residential wood combustion. PM emissions can harm human health and the

environment. The rules were originally adopted as part of Maricopa's

efforts to achieve the National Ambient Air Quality Standard (NAAQS)

for PM-10 and in response to the CAA section 189(a) RACM requirement.

The following is EPA's evaluation and final action for these rules.

III. EPA Evaluation and 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 or maintain the SIP's control strategy.

The statutory provisions relating to RACM are discussed in EPA's

``General Preamble'', which gives 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) and 57 FR 18070 (April 28, 1992). For the

purpose of assisting state and local agencies in developing RACM rules,

EPA prepared a series of technical guidance documents on PM-10 source

categories (See CAA section 190). The RACM guidance applicable to this

rule is entitled, ``Guidance Document for Residential Wood Combustion

Emission Control Measures'' (EPA-450/2-89-015, September 1989). In this

rulemaking action, EPA is applying these policies to this submittal,

taking into consideration the specific factual issues presented.

On March 31, 1998, EPA published a limited approval and a limited

disapproval of Rule 318, Approval of Residential Woodburning Devices,

and Residential Woodburning Restriction Ordinance, which had been

adopted by Maricopa on October 5, 1994 (63 FR 15303). The limited

approval action incorporated these rules into the SIP despite

deficiencies in the rules that precluded full approval. The SIP rules

contain director's discretion in the approval of woodburning devices.

Maricopa's submitted Rule 318 and the Woodburning Ordinance, which

were revised on April 21, 1999, correct the deficiencies in the current

SIP rules by requiring EPA approval of woodburning devices that are

determined by the Maricopa director to be equivalent to EPA-certifed

wood heaters.

EPA has evaluated the submitted rules and has determined that they

fulfill the RACM requirements of CAA section 189(a). In subsequent

action on the Maricopa PM-10 BACM Plan, EPA will determine if the

submitted rules also fulfill the BACM requirements of CAA section

189(b). Maricopa Rule 318, Approval of Residential Woodburning Devices,

and the Maricopa Residential Woodburning Restriction Ordinance are

consistent with the CAA, EPA regulations, and EPA PM-10 RACM policy.

Therefore, the rules are being approved under section 110(k)(3) of the

CAA as meeting the requirements of section 110(a) and part D. A more

detailed evaluation can be found in EPA's evaluation report for these

rules.

This approval action will incorporate these rules into the

federally approved SIP and also stop the sanctions and Federal

Implementation Plan clocks that were started by EPA's limited

disapproval action published on March 31, 1998 (63 FR 15303).

EPA is publishing this rule without prior proposal because the

Agency views this as a noncontroversial amendment and anticipates no

adverse comments. However, in the proposed rules section of this

Federal Register publication, EPA is publishing a separate document

that will serve as the proposal to approve the SIP revision should

relevant adverse comments be filed. This rule will be effective January

7, 2000 without further notice unless the Agency receives relevant

adverse comments by December 8, 1999.

If the EPA receives such comments, then EPA will publish a timely

withdrawal informing the public that the rule will not take effect. All

public comments received will then be addressed in a subsequent final

rule based on the proposed rule. The EPA will not institute a second

comment period on this rule. Any parties interested in commenting on

this rule should do so at this time. If no such comments are received,

the public is advised that this rule will be effective on January 7,

2000 and no further action will be taken on the proposed rule.

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

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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 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.

G. Submission to Congress and the Comptroller General

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).

H. 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 January 7, 2000. 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

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reference, Intergovernmental relations, Reporting and recordkeeping

requirements, Particulate matter.

Dated: October 25, 1999

Laura Yoshii,

Acting 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)(94)(i)(B) to

read as follows:

Sec. 52.120 Identification of plan.

* * * * *

(c) * * *

(94) * * *

(i) * * *

(B) Rule 318 and Residential Woodburning Restriction Ordinance,

revised on April 21, 1999.

* * * * *

[FR Doc. 99-28881 Filed 11-5-99; 8:45 am]

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