[Federal Register Volume 67, Number 155 (Monday, August 12, 2002)]
[Rules and Regulations]
[Pages 52416-52418]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-20223]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AZ 112-0052a; FRL-7253-5]


Revision to the Arizona State Implementation Plan, Maricopa 
County Environmental Services Department

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve a revision to the 
Maricopa County Environmental Services Department (MCESD) portion of 
the Arizona State Implementation Plan (SIP). Under authority of the 
Clean Air Act as amended in 1990 (CAA or the Act), we are approving a 
local rule that regulates open outdoor fires.

DATES: This rule is effective on October 11, 2002, without further 
notice, unless EPA receives adverse comments by September 11, 2002. If 
we receive such comment, we will publish a timely withdrawal in the 
Federal Register to notify the public that this rule will not take 
effect.

ADDRESSES: Mail comments to Andy Steckel, Rulemaking Office Chief (AIR-
4), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne 
Street, San Francisco, CA 94105.
    You can inspect copies of the submitted SIP revision and EPA's 
technical support document (TSD) at our Region IX office during normal 
business hours. You may also see a copy of the submitted SIP revision 
at the following locations:

Environmental Protection Agency, Air Docket (6102), Ariel Rios 
Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460.
Arizona Department of Environmental Quality, Air Quality Division, 1110 
West Washington Street, Phoenix, AZ 85007.
Maricopa County Environmental Services Department, Air Quality 
Division, 1001 North Central Avenue, Suite 201, Phoenix, AZ 85004.

    A copy of the rule may also be available via the Internet at http://www.maricopa.gov/envsvc/air/ruledesc.asp. This is not an EPA Web site 
and it may not contain the same version of the rule that was submitted 
to EPA. Readers should verify that the adoption date of the rule listed 
is the same as the rule submitted to EPA for approval and be aware that 
the official submittal is only available at the agency addresses listed 
above.

FOR FURTHER INFORMATION CONTACT: Al Petersen, Rulemaking Office (AIR-
4), U.S. Environmental Protection Agency, Region IX; (415) 947-4118.

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

Table of Contents

I. The State's Submittal
    A. What rule did the State submit?
    B. Are there other versions of this rule?
    C. What is the purpose of the submitted rule?
II. EPA's Evaluation and Action
    A. How is EPA evaluating the rule?
    B. Does the rule meet the evaluation criteria?
    C. Public comment and final action
III. Background Information
    A. Why was this rule submitted?
IV. Administrative Requirements

I. The State's Submittal

A. What Rule Did the State Submit?

    Table 1 lists the rule we are approving with the dates that it was 
revised by the local air agency and submitted by the Arizona Department 
of Environmental Quality.

                                            Table 1.--Submitted Rule
----------------------------------------------------------------------------------------------------------------
               Local agency                   Rule No.             Rule title             Revised     Submitted
----------------------------------------------------------------------------------------------------------------
MCESD.....................................          314  Open Outdoor Fires...........     12/19/01     03/22/02
----------------------------------------------------------------------------------------------------------------

    On June 12, 2002, this rule submittal was found to meet the 
completeness criteria in 40 CFR part 51 Appendix V, which must be met 
before formal EPA review.

[[Page 52417]]

B. Are There Other Versions of This Rule?

    A version of Rule 314 was finalized as a limited approval into the 
SIP and limited disapproval with sanctions on January 4, 2001 (66 FR 
730).

C. What Is the Purpose of the Submitted Rule?

    Rule 314 prohibits open outdoor fires unless a permit is obtained 
and the Control Officer has not declared a restricted burn period. The 
following are exemptions from these requirements:
     Fires for cooking, warmth for humans, recreation, branding 
of animals, the use of orchard heaters for frost protection, and fire 
extinguisher training.
    Exemptions from only the permit requirement are as follows:
     Disposal of dangerous material, testing of explosive or 
flammable material, and fire fighting training.
    The TSD has more information about this rule.

II. EPA's Evaluation and Action

A. How Is EPA Evaluating the Rule?

    Generally, SIP rules must be enforceable (see section 110(a) of the 
CAA) and must not relax existing requirements (see sections 110(l) and 
193). Section 189(a) of the CAA requires 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 MCESD regulates certain sources 
of PM-10 in the nonattainment area.
    EPA's 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 
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 this direct final action are de minimis according to the December 
1999 Revised MAG 1999 Serious Area Particulate Plan for PM-10 for the 
Maricopa County Nonattainment Area (PM-10 Plan). Therefore, Rule 314 is 
not required to meet BACM/BACT control levels. However, the State 
submitted Rule 314 as a RACM/RACT rule on which the PM-10 Plan relies 
to achieve attainment. Thus EPA is evaluating Rule 314 to determine if 
it meets RACM/RACT requirements, but not for BACM/BACT.

B. Does the Rule Meet the Evaluation Criteria?

    We believe the rule is consistent with the relevant policy and 
guidance regarding enforceability, SIP relaxations, and fulfilling 
RACM/RACT. All of the deficiencies identified in our previous limited 
approval and limited disapproval action of Rule 314 on January 4, 2001 
have been adequately addressed as follows:
     We disapproved the exemption to burn dangerous materials, 
because the ``dangerous material'' is not defined. A satisfactory 
definition was added to the rule. Sec. 314.202.
     We disapproved the exemption permitting open burning with 
a stipulation of conditions and time of day, because criteria for 
allowing exemptions were not specified and were subject to the 
discretion of the Control Officer. A requirement was added for a 
permittee to call the fire agency with jurisdiction and the Control 
Officer for permission to commence burning. The Control Officer must 
base his decision to allow burning on National Weather Service 
forecasts or other meteorological analyses. We have determined that 
this approach fulfills the requirements of RACM/RACT. Sec. 314.302.
     We disapproved an exemption to burn with an air curtain 
destructor, because the Control Officer had unrestricted discretion. An 
appendix was added to Rule 314 to describe procedures and guidelines 
for air curtain destructors and burn pits to make the rule approvable.
    The TSD has more information about our evaluation.

C. Public Comment and Final Action

    As authorized in section 110(k)(3) of the CAA, EPA is fully 
approving the submitted rule because we believe it fulfills all 
relevant requirements and corrects the deficiencies in the previous 
version. We do not think anyone will object to this approval, so we are 
finalizing it without proposing it in advance. However, in the Proposed 
Rules section of this Federal Register, we are simultaneously proposing 
approval of the same submitted rule. If we receive adverse comments by 
September 11, 2002, we will publish a timely withdrawal in the Federal 
Register to notify the public that the direct final approval will not 
take effect and we will address the comments in a subsequent final 
action based on the proposal. If we do not receive timely adverse 
comments, the direct final approval will be effective without further 
notice on October 11, 2002. This will incorporate this rule into the 
federally enforceable SIP and will terminate all sanctions and sanction 
clocks associated with our January 4, 2001 action.

III. Background Information

A. Why Was This Rule 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.

                Table 2.--PM-10 Nonattainment Milestones
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                  Date                                Event
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March 3, 1978..........................  EPA promulgated a list of total
                                          suspended particulate (TSP)
                                          nonattainment areas under the
                                          Clean Air Act, as amended in
                                          1977. 43 FR 8964; 40 CFR
                                          81.305.
July 1, 1987...........................  EPA replaced the TSP standards
                                          with new PM standards applying
                                          only up to 10 microns in
                                          diameter (PM-10). 52 FR 24672.
November 15, 1990......................  Clean Air Act Amendments of
                                          1990 were enacted, Pub. L. 101-
                                          549, 104 Stat. 2399, codified
                                          at 42 U.S.C. 7401-7671q.
November 15, 1990......................  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
                                          pursuant to section 188(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).
------------------------------------------------------------------------

IV. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211,

[[Page 52418]]

``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does 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 (64 
FR 43255, August 10, 1999). This action merely approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the CAA. 
This rule also is not subject to Executive Order 13045, ``Protection of 
Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. In this 
context, in the absence of a prior existing requirement for the State 
to use voluntary consensus standards (VCS), EPA has no authority to 
disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the CAA. Thus, the requirements of section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(15 U.S.C. 272 note) do not apply. This rule does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    The Congressional Review Act, 5 U.S.C. section 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. A major rule 
cannot take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
section 804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by October 11, 2002. 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, Particulate matter, Reporting 
and recordkeeping requirements.

    Dated: July 16, 2002.
Keith Takata,
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)(105) to read 
as follows:


Sec. 52.120  Identification of plan.

* * * * *
    (c) * * *
    (105) Amended rule for the following agency was submitted on March 
22, 2002, by the Governor's designee.
    (i) Incorporation by reference.
    (A) Maricopa County Environmental Services Department.
    (1) Rule 314, revised on December 19, 2001.
* * * * *
[FR Doc. 02-20223 Filed 8-9-02; 8:45 am]
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