[Federal Register Volume 64, Number 215 (Monday, November 8, 1999)]
[Rules and Regulations]
[Pages 60678-60681]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-28881]
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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
[[Page 60679]]
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
[[Page 60680]]
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
[[Page 60681]]
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]
BILLING CODE 6560-50-P
