[Federal Register Volume 63, Number 26 (Monday, February 9, 1998)]
[Proposed Rules]
[Pages 6505-6507]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-3325]


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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.

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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

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. 
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.
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    \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.
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    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.
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    \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).
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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 that are the subject of this action were adopted 
as part of Maricopa's efforts to achieve the National Ambient Air 
Quality Standard

[[Page 6506]]

(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. 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.
    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

    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 30l, 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 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

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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]
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