[Federal Register Volume 63, Number 61 (Tuesday, March 31, 1998)]
[Rules and Regulations]
[Pages 15303-15305]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-8414]
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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]
BILLING CODE 6560-50-P
