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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AZ 059-0010; FRL-5965-3]

Approval and Promulgation of Implementation Plans; Arizona State

Implementation Plan, Maricopa County

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: EPA is proposing a limited approval and limited disapproval of

revisions to the Arizona State Implementation Plan (SIP) which concern

the control of particulate matter (PM) from residential wood

combustion.

The intended effect of proposing limited approval and limited

disapproval of these rules is to regulate PM emissions in accordance

with the requirements of the Clean Air Act, as amended in 1990 (CAA or

the Act). EPA's final action on this proposed rule will incorporate

these rules into the federally approved SIP. EPA has evaluated the

rules and is proposing a simultaneous limited approval and limited

disapproval under provisions of the CAA 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.

DATES: Comments must be received on or before March 11, 1998.

ADDRESSES: Comments may be mailed to: Andrew Steckel, Rulemaking Office

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

75 Hawthorne Street, San Francisco, CA 94105-3901.

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

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

c 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:

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 proposed for approval into the Arizona SIP are

Maricopa County (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 31, 1995.

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 November 15, 1990, amendments to the

1977 CAA were enacted. Public Law 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 non-attainment by operation of

law and classified as moderate pursuant to section 188(a). The Phoenix

Planning Area was among the areas designated non-attainment

77 CAA were enacted. Public Law 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 non-attainment by operation of

law and classified as moderate pursuant to section 188(a). The Phoenix

Planning Area was among the areas designated non-attainment.

2 In section 189(a) of the CAA, Congress statutorily adopted

the requirement that moderate PM-10 nonattainment areas adopt

reasonably available control measures (RACM) rules for PM-10 and

established a deadline of November 15, 1991 for states to submit these

rules.

---------------------------------------------------------------------------

\1\ On July 18, 1997 EPA promulgated revised and new standards

for PM-10 and PM-2.5 (62 FR 38651). EPA has not yet established

specific plan and control requirements for the revised and new

standards. This action is part of Maricopa's efforts to achieve

compliance with the 1987 PM-10 standards and the section 189(a)

requirement.

\2\ 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). 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.

---------------------------------------------------------------------------

0, 1996 EPA reclassified Phoenix Planning Area

from moderate to serious nonattainment pursuant to section

188(b)(2). See 61 FR 21372 (May 10, 1996). 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 to EPA for incorporation into the

Arizona SIP on August 31, 1995, including the rules being acted on in

this document. This document addresses EPA's proposed 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

October 5, 1994. Maricopa Rule 318 and the Woodburning Ordinance were

found to be complete on March 12, 1996 pursuant to EPA's completeness

criteria that are set forth in 40 CFR Part 51 Appendix V 3

and are being proposed for limited approval and limited disapproval.

---------------------------------------------------------------------------

\3\ 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).

---------------------------------------------------------------------------

Rule 318 and the Woodburning Ordinance control PM emissions from

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

environment. The rules that are the subject of this action were adopted

as part of Maricopa's efforts to achieve the National Ambient Air

Quality Standard

(NAAQS) for PM-10 and in response to the section 189(a) CAA

requirement. The following is EPA's evaluation and proposed action for

Maricopa Rule 318 and the Woodburning Ordinance.

III. EPA Evaluation and Proposed Action

man health and the

environment. The rules that are the subject of this action were adopted

as part of Maricopa's efforts to achieve the National Ambient Air

Quality Standard

(NAAQS) for PM-10 and in response to the section 189(a) CAA

requirement. The following is EPA's evaluation and proposed action for

Maricopa Rule 318 and the Woodburning Ordinance.

III. EPA Evaluation and Proposed 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 give 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). In this

proposed rulemaking action, EPA is applying these policies to this

submittal, taking into consideration the specific factual issues

presented.

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).

Maricopa Rule 318 and the Woodburning Ordinance are new rules for

inclusion in the SIP. The submitted rules control PM-10 emissions from

residential wood combustion by establishing a mandatory woodburning

curtailment program. Rule 318 establishes standards for the approval of

woodburning devices, and the Woodburning Ordinance prohibits the use of

non-approved devices during high air pollution episodes

Rule 318 and the Woodburning Ordinance are new rules for

inclusion in the SIP. The submitted rules control PM-10 emissions from

residential wood combustion by establishing a mandatory woodburning

curtailment program. Rule 318 establishes standards for the approval of

woodburning devices, and the Woodburning Ordinance prohibits the use of

non-approved devices during high air pollution episodes. EPA has

determined that Maricopa Rule 318 and the Woodburning Ordinance meet

the criteria for RACM according to the applicable RACM guidance.

Although Maricopa Rule 318 and the Woodburning Ordinance will

strengthen the SIP, the rules contain the following deficiencies:

Director's discretion and non-EPA-approved testing protocols. A

detailed discussion of rule deficiencies can be found in the Technical

Support Document for Rule 318 and the Woodburning Ordinance, which is

available from the U.S. EPA's Region IX office. These deficiencies may

lead to rule enforceability problems and are, therefore, not consistent

with section 172(c)(6) of the 1977 CAA.

Because of the above deficiencies, EPA cannot grant full approval

of these rules under section 110(k)(3) and part D. Also, because the

submitted rules are not composed of separable parts that meet all the

applicable requirements of the CAA, EPA cannot grant partial approval

of the rules under section 110(k)(3). However, EPA may grant a limited

approval of the submitted rules 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 proposing a limited

approval of Maricopa's submitted Rule 318 and the Woodburning Ordinance

under sections 110(k)(3) and 301(a) of the CAA

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 proposing a limited

approval of Maricopa's submitted Rule 318 and the Woodburning Ordinance

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

At the same time, EPA is also proposing a 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. Under section

179(a)(2), if the Administrator disapproves a submission under section

110(k) for an area designated nonattainment, based on the submission's

failure to meet one or more of the elements required by the Act, the

Administrator must apply one of the sanctions set forth in section

179(b) unless the deficiency has been corrected within 18 months of

such disapproval. Section 179(b) provides two sanctions available to

the Administrator: Highway funding and offsets. The 18 month period

referred to in section 179(a) will begin on the effective date of EPA's

final limited disapproval. Moreover, the final disapproval triggers the

Federal implementation plan (FIP) requirement under section 110(c). It

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

by Maricopa and are currently in effect in Maricopa. EPA's final

limited disapproval action will not prevent 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.

IV. Administrative Requirements

A. Executive Order 12866

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 proposed 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.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by

reference, Intergovernmental relations, Reporting and recordkeeping

requirements, Particulate matter.

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

Dated: February 4, 1998.

Felicia Marcus,

Regional Administrator, Region IX.

[FR Doc. 98-3325 Filed 2-6-98; 8:45 am]

BILLING CODE 6560-50-P