[Federal Register Volume 65, Number 133 (Tuesday, July 11, 2000)]
[Proposed Rules]
[Pages 42649-42653]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-17492]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AZ 004-0023; FRL-6733-4]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: We are proposing a limited approval and a limited disapproval 
of a revision to the Maricopa County Environmental Services Department 
(MCESD) portion of the Arizona State Implementation Plan (SIP) 
concerning particulate matter (PM-10) \1\ emissions from open outdoor 
fires. The intended effect of proposing a limited approval and limited 
disapproval of a rule is to strengthen the federally approved SIP by 
incorporating this revision. EPA's final action on this proposal will 
incorporate the rule into the SIP. While strengthening the SIP, this 
revision contains deficiencies which the MCESD must address before EPA 
can grant full approval under section 110(k)(3) of the Clean Air Act 
(CAA).
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    \1\ There are two separate national ambient air quality 
standards (NAAQS) for PM-10, an annual standard of 50 g/
m3 and a 24-hour standard of 150 g/
m3.
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    We are proposing limited approval of a revision to the MCESD 
portion of the Arizona (SIP) concerning PM-10 emissions from abrasive 
blasting.
    We are also proposing full approval of a revision to the MCESD 
portion of the Arizona (SIP) concerning PM-10

[[Page 42650]]

emissions from nonmetallic mineral mining and processing.
    We are following the CAA requirements for actions on SIP 
submittals, SIPs for national primary and secondary ambient air quality 
standards, and plan requirements for nonattainment areas.

DATES: Any comments must arrive by August 10, 2000.

ADDRESSES: Mail comments to: Andrew Steckel, Chief, Rulemaking Office, 
AIR-4, Air Division, U.S. Environmental Protection Agency, Region IX, 
75 Hawthorne Street, San Francisco, CA 94105.
    You can inspect copies of the submitted rule revisions and our 
technical support documents (TSDs) at our Region IX office from 8 a.m. 
to 4:30 p.m., Monday through Friday. To see copies of the submitted 
rule revisions, you may also go to the following locations:

Environmental Protection Agency, Air Docket (6102), Ariel Rios 
Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460.
Arizona Department of Environmental Quality, 3033 North Central 
Avenue, Phoenix, AZ 85012.
Maricopa County Environmental Services Department, Air Quality 
Division, 1001 North Central Avenue, Suite 201, Phoenix, AZ 85004.


FOR FURTHER INFORMATION CONTACT: Al Petersen, Rulemaking Office (AIR-
4), Air Division, U.S. Environmental Protection Agency, Region IX, 75 
Hawthorne Street, San Francisco, CA 94105, Telephone: (415)744-1135.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to EPA.

Table of Contents

I. The State's Submittal
    A. What rules did the State submit?
    B. Are there other versions of these rules?
    C. What is the purpose of the submitted rules?
II. EPA's Evaluation and Action
    A. How is EPA evaluating the rules?
    B. Do any of the rules fully meet the evaluation criteria?
    C. What are the rule deficiencies?
    D. EPA recommendations to further improve the rules
    E. Proposed action and public comment
III. Background information
    Why were these rules submitted?
IV. Administrative Requirements

I. The State's Submittal

A. What Rules Did the State Submit?

    Table 1 lists the rules addressed by this proposal with the dates 
that they were adopted by the local air agency and submitted by the 
Arizona Department of Environmental Quality (ADEQ).

                                            Table 1.--Submitted Rules
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               Local agency                  Rule #              Rule title               Adopted     Submitted
----------------------------------------------------------------------------------------------------------------
MCESD.....................................      312  Abrasive Blasting................     07/13/88     01/04/90
MCESD.....................................      314  Open Outdoor Fires...............     07/13/88     01/04/90
MCESD.....................................      316  Nonmetallic Mineral Mining and        04/21/99     08/04/99
                                                      Processing.
----------------------------------------------------------------------------------------------------------------

    On May 25, 1990, May 25, 1990, and October 18, 1999, respectively, 
EPA found that these rule submittals meet the completeness criteria in 
40 CFR part 51, appendix V, which must be met before formal EPA review. 
The completeness letters may be found in the docket for this 
rulemaking.

B. Are There Other Versions of These Rules?

    There are no previous versions of Rule 312 in the SIP?
    We previously approved a version of Rule 314 into the SIP on April 
10, 1995 (60 FR 18010), at which time the Phoenix metropolitan area was 
classified as a moderate nonattainment area for PM-10. The MCESD 
regulates certain sources of PM-10 in the nonattainment area. However, 
the approval action was vacated by the Ninth Circuit Court of Appeals 
in Ober v. EPA, 84 F.3d 304 (9th Cir. 1996), so action is being taken 
again on the original submittal. The original submittal of Rule 314 was 
intended to replace SIP Rules 50 and 51, which will be replaced by 
finalizing this rulemaking. The Phoenix metropolitan area is now 
classified as a serious nonattainment area for PM-10 and a more 
stringent standard applies to Rule 314. 40 CFR 81.303; compare 
subsections (a) and (b) of section 189 of the CAA.
    We approved a version of Rule 316 into the SIP on August 4, 1997 
(62 FR 41856).

C. What Is the Purpose of the Submitted Rules?

    Rule 312 limits the emission of particulate matter from abrasive 
blasting operations to 20 percent opacity, except for not more than 
three minutes in any one hour period. Required control measures are one 
of the following: Confined blasting, wet abrasive blasting, 
hydroblasting, or an approved equivalent control.
    Rule 314 prohibits open outdoor fires, except for the following 
exemptions:

     Fires for cooking, warmth for humans, recreation, 
branding of animals, or the use of orchard heaters for frost 
protection.
     Fires permitted by the Arizona Department of 
Environmental Quality for the disposal of dangerous material where 
there is no safe alternative.

Additional exemptions are permitted subject to the stipulation of the 
conditions and time of day best for minimizing air pollution and 
protecting health, safety, and comfort of persons. Other exemptions are 
permitted subject to certain stipulations of the Control Officer, 
including size of pile to be burned, hours, and meteorological 
conditions.
    Rule 316 limits the emission of particulate matter from nonmetallic 
mineral processing plants, asphaltic concrete plants, and concrete 
plants to values of percent opacity or particulate matter concentration 
for stacks and to values of percent opacity for various sources of 
fugitive dust within the plants. The TSDs have more information about 
these rules.

II. EPA's Evaluation and Action

A. How Is EPA Evaluating the Rules?

    We evaluated these rules for enforceability and consistency with 
the CAA as amended in 1990, with 40 CFR part 51, and with EPA's PM-10 
policy. Sections 172(c)(1) and 189(a) of the CAA require moderate PM-10 
nonattainment areas to implement reasonably available control measures 
(RACM), including reasonably available control technology (RACT) for 
stationary sources of PM-10. Section 189(b) requires that serious PM-10 
nonattainment areas, in addition to meeting the RACM/RACT requirements, 
implement best available control measures (BACM), including best 
available control technology (BACT). The Phoenix metropolitan area is a 
serious PM-10 nonattainment area. The

[[Page 42651]]

MCESD regulates certain sources of PM-10 in the nonattainment area.
    EPA's preliminary guidance for both moderate and serious PM-10 
nonattainment areas provides that RACM/RACT and BACM/BACT are required 
to be implemented for all source categories unless the State 
demonstrates that a particular source category does not contribute 
significantly to PM-10 levels in excess of the NAAQS (i.e., de minimis 
sources). See General Preamble for the Implementation of Title I of the 
Clean Air Act Amendments of 1990, 57 FR 13498, 13540 (April 16, 1992) 
and Addendum to the General Preamble for the Implementation of Title I 
of the Clean Air Act Amendments of 1990, 59 FR 41998, 42011 (August 16, 
1994). PM-10 emissions from the source categories that are the subject 
of these proposed actions do not meet the significance test above 
according to the December 1999 Revised MAG 1999 Serious Area 
Particulate Plan for PM-10 for the Maricopa County Nonattainment Area 
(PM-10 Plan).\2\ Therefore, Rules 312, 314, and 316 are not required to 
meet BACM/BACT control levels.
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    \2\ On April 13, 2000, EPA proposed approval of this plan. See 
65 FR 19963. If the PM-10 Plan should be modified in the future, EPA 
could require additional control measures to meet BACM/BACT 
requirements.
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    However, the State submitted Rules 314 and 316 as RACM/RACT rules 
on which the PM-10 Plan relies. Thus EPA is evaluating Rules 314 and 
316 to determine if they meet RACM/RACT requirements, to ensure that 
they do not relax the SIP in violation of CAA sections 110(l) and 193, 
and that they meet enforceability and other general SIP requirements of 
section 110.
    In contrast to Rules 314 and 316, MCESD does not identify Rule 312, 
abrasive blasting, in PM-10 Plan as a RACM/RACT rule. Therefore, we are 
evaluating Rule 312 only to ensure that it does not relax the SIP in 
violation of CAA sections 110(l) and 193, and that it meets 
enforceability and other general SIP requirements of section 110. Rule 
312 strengthens the SIP by regulating a previously non-regulated source 
of PM-10 emissions, so SIP relaxation is not at issue. The TSDs have 
more information on how we evaluated the rules.
    Guidance and policy documents that we used to define specific 
enforceability, SIP relaxaton, and RACM/RACT requirements include the 
following:
     PM-10 Guideline Document, (EPA-452/R093-008).
     Procedures for Identifying Reasonably Available Control 
Technology for Stationary Sources of PM-10 (EPA-452/R-93-001).
     Revised MAG 1999 Serious Area Particulate Plan for PM-10 
for the Maricopa County Nonattainment Area (December 1999).
     General Preamble Appendix C3--Prescribed Burning Control 
Measures, 57 FR 18072 (April 28, 1992).
     Addendum to the General Preamble for the Implementation of 
Title I of the Clean Air Act Amendments of 1990, 59 FR 41998 (August 
16, 1994).

B. Do Any of the Rules Fully Meet the Evaluation Criteria?

    These rules improve the SIP by establishing more stringent emission 
limits and by clarifying recordkeeping provisions. These rules are 
largely consistent with the relevant policy and guidance regarding 
enforceability, SIP relaxations, and RACT requirements. Rule provisions 
which do not fully meet the evaluation criteria are summarized below 
and discussed further in the TSDs.
    MCESD Rule 316 has standards for nonmetallic mineral mining and 
processing plants generally as stringent or more stringent than NSPS 
(40 CFR 60.672) and analogous rules in other states. The rule is more 
stringent than the SIP rule. We have determined that MCESD Rule 316 
meets the requirements of RACT and other applicable requirements of the 
CAA. As a result, we have determined that MCESD Rule 316 should be 
given full approval.

C. What Are the Rule Deficiencies?

     Rule 312 has a provision that prevents full approval of 
the SIP revision:

     The rule enforceability is limited due to the 
discretion of the Control Officer in paragraph 302.4 to approve 
alternate control methods.

    Rule 314 has provisions that prevent full approval of the SIP 
revision:

     The exemption to burn dangerous materials in paragraph 
302.2 limits enforceability, because the dangerous materials are not 
defined.
     Exemptions permitting open burning with the stipulation 
of conditions and time of day in paragraph 302.3 limit 
enforceability, because the conditions for allowing exemptions are 
not specified and are at the discretion of the Control Officer. In 
order to meet the requirements of RACM and to be enforceable, the 
Control Officer should use conditions based on quantitative data, 
such as reasonably available meteorological data, to predict which 
days are favorable for open burning and smoke dispersion.
     The exemption to burn with an air curtain destructor in 
paragraph 302.5 limits enforceability, because the Control Officer 
has discretion to approve the material to be burned and type and 
size of equipment without any guidelines.

D. EPA Recommendations to Further Improve the Rules

    The TSD for Rule 316 describes an additional rule revision that 
does not affect EPA's current action but is recommended for the next 
time the local agency modifies the rule.

E. Proposed Action and Public Comment

    As authorized in sections 110(k)(3) and 301(a) of the Act, we are 
proposing a limited approval of the submitted Rules 312 and 314 to 
improve the SIP. If finalized, this action would incorporate the 
submitted rules into the SIP, including those provisions identified as 
deficient. We are also simultaneously proposing a limited disapproval 
of Rule 314 under section 110(k)(3). If this disapproval is finalized, 
sanctions will be imposed under section 179 of the Act unless EPA 
approves subsequent SIP revisions that correct the rule deficiencies 
within 18 months. These sanctions would be imposed as described in 59 
FR 39832 (August 4, 1994). A final disapproval would also trigger the 
federal implementation plan (FIP) requirement under section 110(c). 
Note that the submitted rule has been adopted by the MCESD, and EPA's 
final limited disapproval would not prevent the local agency from 
enforcing Rule 314. Sanctions would not be imposed for Rule 312.
    As authorized in section 110(k) of the Act, EPA is proposing a full 
approval of the submitted Rule 316 to improve the SIP.
    We will accept comments from the public on the proposed limited 
approval and limited disapproval, the proposed limited approval, and 
the proposed full approval for the next 30 days.

III. Background Information

Why Were These Rules Submitted?

    PM-10 harms human health and the environment. Section 110(a) of the 
CAA requires states to submit regulations that control PM-10 emissions. 
Table 2 lists some of the national milestones leading to the submittal 
of these local agency PM-10 rules.

[[Page 42652]]



                Table 2.--PM-10 Nonattainment Milestones
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             Date                                Event
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03/03/78.....................  EPA promulgated a list of total suspended
                                particulate (TSP) nonattainment areas
                                under the Clean Air Act, as amended in
                                1977 (1977 CAA or pre-amended Act). 43
                                FR 8964; 40 CFR 81.305.
07/01/87.....................  EPA replaced the TSP standards with new
                                PM standards applying only up to 10
                                microns in diameter (PM-10). (52 FR
                                24672).
11/15/90.....................  Clean Air Act Amendments of 1990 were
                                enacted, Pub. L. 101-549, 104 Stat.
                                2399, codified at 42 U.S.C. 7401-7671q.
11/15/90.....................  PM-10 areas meeting the qualifications of
                                section 107(d)(4)(B) of the CAA were
                                designated nonattainment by operation of
                                law and classified as moderate or
                                serious pursuant to section 189(a).
                                States are required by section 110(a) to
                                submit rules regulating PM-10 emissions
                                in order to achieve the attainment dates
                                specified in section 188(c).
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IV. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, Regulatory Planning and 
Review.

B. Executive Order 13045

    Executive Order 13045, entitled 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 Executive Order 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 Executive Order 13045 because it does 
not involve decisions intended to mitigate environmental health or 
safety risks.

C. 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 OMB 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 proposed rule does not significantly or uniquely affect the 
communities of Indian tribal governments. Accordingly, the requirements 
of section 3(b) of Executive Order 13084 do not apply to this proposed 
rule.

D. Executive Order 13132

    Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 
1999) revokes and replaces Executive Orders 12612, Federalism and 
12875, Enhancing the Intergovernmental Partnership. Executive Order 
13132 requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.'' Under 
Executive Order 13132, EPA may not issue a regulation that has 
federalism implications, that imposes substantial direct compliance 
costs, and that is not required by statute, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by State and local governments, or EPA consults with 
State and local officials early in the process of developing the 
proposed regulation. EPA also may not issue a regulation that has 
federalism implications and that preempts State law unless the Agency 
consults with State and local officials early in the process of 
developing the proposed regulation.
    This proposed rule will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132, 
because it merely acts on a state rule implementing a federal standard, 
and does not alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. Thus, the 
requirements of section 6 of the Executive Order do not apply to this 
proposed 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 proposed rule will not have a significant impact on a 
substantial number of small entities because SIP actions under section 
110 and subchapter I, part D of the Clean Air Act do not create any new 
requirements but simply act on requirements that the State is already 
imposing. Therefore, because the Federal SIP action 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

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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 proposed action 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 proposed Federal action acts 
on 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. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    EPA believes that VCS are inapplicable to today's proposed action 
because it does not require the public to perform activities conducive 
to the use of VCS.

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: June 28, 2000.
Nora McGee,
Acting Regional Administrator, Region IX.
[FR Doc. 00-17492 Filed 7-10-00; 8:45 am]
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