[Federal Register Volume 70, Number 101 (Thursday, May 26, 2005)]
[Rules and Regulations]
[Pages 30370-30373]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-10491]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[AZ-140-128; FRL-7912-3]
Revisions to the Arizona State Implementation Plan, Maricopa
County
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is finalizing approval of revisions to the Maricopa County
portion of the Arizona State Implementation Plan (SIP). These revisions
were proposed in the Federal Register on March 23, 2005 and concern
volatile organic compound (VOC) emissions from expandable polystyrene
foam operations. We are approving local Rule 358--Polystyrene Foam
Operations. This rule regulates these emission sources under the Clean
Air Act as amended in 1990 (CAA or the Act).
DATES: Effective Date: This rule is effective on June 27, 2005.
ADDRESSES: You can inspect copies of the administrative record for this
action at EPA's Region IX office during normal business hours by
appointment. You can inspect copies of the submitted SIP revisions by
appointment at the following locations:
Environmental Protection Agency, Region IX, 75 Hawthorne Street, San
Francisco, CA 94105-3901;
Air and Radiation Docket and Information Center, U.S. Environmental
Protection Agency, Room B-102, 1301 Constitution Avenue, NW., (Mail
Code 6102T), Washington, DC 20460;
Arizona Department of Environmental Quality, Air Quality Division,
1100 West Washington Street, Phoenix, AZ, 85007; and,
Maricopa County, Air Quality Department, 1001 North Central Avenue,
Phoenix, AZ, 85004-1942.
A copy of the rule may also be available via the Internet at
http://www.maricopa.gov/AQ/Rules. Please be advised that this is not
an EPA Web site and may not contain the same version of the rule
that was submitted to EPA.
FOR FURTHER INFORMATION CONTACT: Jerald S. Wamsley, EPA Region IX,
(415) 947-4111, [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to EPA.
I. Proposed Action
On March 23, 2005 (70 FR 14616), EPA proposed to approve the
following rule into the Arizona SIP.
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Rule Rule title Adopted Submitted
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Maricopa County......................... 358 Polystyrene Foam Operations.... 04/20/05 04/25/05
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We proposed to approve Rule 358 because we determined that it complied
with the relevant CAA requirements. Our proposed action contains more
information on this rule and our evaluation.
On May 2, 2005, we found this rule submittal met the completeness
criteria in 40 CFR part 51, appendix V. On February 22, 2005, the
Arizona Department of Environmental Quality (ADEQ) requested EPA to
parallel process our review of Rule 358 concurrently with Maricopa
County's rule adoption process. We agreed to parallel process Rule 358
using our authority under 40 CFR part 51, appendix V and, for the
purposes of our March 23, 2005 proposal, we made a completeness finding
on the February 22, 2005 submittal according to the criteria at 40 CFR
part 51, appendix V, 2.3.1. Our May 2, 2005 completeness finding
applies to the April 25, 2005 submittal that is the subject of this
rulemaking.
II. Public Comments and EPA Responses
EPA's proposed action provided a 30-day public comment period.
During this period, we received comments from the following party.
1. Seth v.d.H. Cooley, Duane Morris, LLP representing WinCup
Holdings, Inc. (WinCup); letter dated April 22, 2005 and received via
electronic mail April 22, 2005. The comments and our responses are
summarized below.
Comment #1: The emission limit in Rule 358, Section 303, 3.2 pounds
of VOC per 100 pounds of polystyrene beads processed, (Section 303
limit) has no technical basis. There is no connection between Maricopa
County Air Quality Division's (MCAQD) RACT Analysis and the Section 303
limit.
Response #1: In their RACT Analysis ,\1\ MCAQD reviewed the
expandable polystyrene industry, a wide variety of possible emission
control options, and emission limits and controls adopted in other
jurisdictions. Their RACT analysis outlined a compliance strategy of
installing specific control equipment and process modifications, such
as a regenerative thermal oxidizer, use of a total enclosure for
capturing prepuff polystyrene aging emissions, and different prepuff
polystyrene aging regimes, that could be used at the WinCup facility to
meet the Section 303 emission limit. MCAQD calculated a specific
emission reduction due to WinCup's use of the compliance
[[Page 30371]]
strategy, 37.3 tons per year. \2\ Then, MCAQD calculated the cost
effectiveness of these emission controls at $5,414 per ton of VOC
reduced. \3\
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\1\ ``RACT Analysis for Rule 358 Polystyrene Foam Operations,''
Planning & Analysis Section, Maricopa County Air Quality Department,
Phoenix, AZ April 21, 2005.
\2\ See RACT Analysis at Table 12-1, Appendix A-2, Tables III &
IV, and Appendix A-3).
\3\ See RACT Analysis at Table 12-1 and Appendix A-2, Table II.
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MCAQD developed the Section 303 compliance strategy after reviewing
provisions adopted in other states and localities (see Chapter 5.2) and
how cupmakers met similar and more stringent emission limits in the Bay
Area Air Quality Management District (BAAQMD Rule 8-52, 2.8 pounds of
VOC per 100 pounds of beads processed, for our discussion, the ``Rule
8-52 limit'') and South Coast Air Quality Management District (SCAQMD
Rule 1175, 2.4 pounds of VOC per 100 pounds of beads processed, for our
discussion the ``Rule 1175 limit''). Specifically, Chapter 10 of the
RACT analysis describes how MCAQD established the Section 303 standard
by adding 0.4 pounds VOC to BAAQMD's 2.8 pound VOC limit. MCAQD added
the 0.4 pounds VOC to account for residual VOC in finished products
that are not stored at the WinCup Corte Madera manufacturing facility.
WinCup supplied this information used to estimate residual VOC content
in their finished products.\4\
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\4\ See citations 11A, B, and C in RACT Analysis bibliography.
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Finally, in the appendices to the RACT analysis, MCAQD supplied the
information needed to review the 2001 pre-rule implementation VOC
emissions baseline case, the post-rule implementation estimated VOC
emissions, the resulting VOC emission reductions, and rule
implementation costs. These appendices show the different VOC capture
and destruction percentages that result from implementing the MCAQD's
control strategy and that ultimately allow a cupmaker to meet the
Section 303 standard. MCAQD's calculations use the Section 303 limit as
an end point for estimating emission reductions under the rule and the
Section 303 limit can be mathematically derived from the information
provided in the RACT Analysis and appendices.
As MCAQD points out, \5\ they did not specify precise WinCup
production inputs, exact emission rates related to WinCup's specific
production processes or manufacturing practices, or discuss production
figures or emission rates for specific WinCup product lines because
WinCup labeled this information confidential. Furthermore, MCAQD could
not present information in such a way as to allow a reader to derive
the information which WinCup claimed as confidential. Had WinCup
allowed MCAQD to be more forthcoming with this information labeled as
confidential, the RACT Analysis and its appendices could have
demonstrated more clearly the existing link between the Section 303
emission limit and the VOC emissions and compliance estimates used in
the RACT Analysis.
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\5\ See Comment and Response 5, Notice of Final
Rulemaking (NFRM), Maricopa County Air Pollution Control
Regulations, Rule 358--Polystyrene Foam Operations, Preamble,
Response to Comments.
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Contrary to the comment, MCAQD provides three independent
rationales supporting the section 303 limit. First, similar and more
stringent limits are in effect in other areas. Second, by using a
reasonably available and similar control strategy employed by cupmakers
to meet these similar and more stringent limits, it is technically
feasible to meet the Section 303 limit. Third, the cost of compliance
with the Section 303 limit is reasonable. In contrast, WinCup provided
no evidence that compliance with the Section 303 limit is unreasonable
for Maricopa County facilities.
Comment #2: The Section 303 limit is derived from the BAAQMD Rule
8-52 emission limit. As determined by BAAQMD, the Rule 8-52 limit is a
Best Available Retrofit Control Technology (BARCT) standard. Under
California regulation, BARCT limits are more stringent than RACT limits
for the same source. Because the Rule 8-52 limit is defined as BARCT,
the Section 303 limit cannot represent RACT.
Response #2: As discussed in Response 1, the Rule 8-52
limit was not the only basis for the Section 303 limit. However, even
if MCAQD had borrowed wholly from the BAAQMD rule, nothing in Federal
law precludes MCAQD from adopting in Rule 358 limits taken from other
jurisdictions and submitting them to EPA. There are over a hundred
state and local agencies in the United States that establish
prohibitory air pollution regulations like Rule 358 for stationary
sources of pollution. It is necessary and appropriate for these
agencies to build on work performed by others with similar sources.
EPA has defined RACT as the, ``lowest emission limitation that a
particular source is capable of meeting by the application of control
technology that is reasonably available, considering technological and
economic feasibility'' (44 Federal Register 53762, September 17, 1979).
MCAQD has the primary obligation to analyze the source category and
determine what controls are applicable to their jurisdiction and
sources and part of this obligation involves looking at limits applied
to similar sources in other jurisdictions.
In Rule 358, MCAQD must adopt and submit to EPA limits that meet
our RACT criteria. At MCAQD's discretion, they may adopt and submit to
EPA limits that exceed our RACT criteria. We note that the commenter
provided no evidence that compliance with the Section 303 limit is
unreasonable for Maricopa County facilities given EPA's definition of
RACT.
Also, we point out that BAAQMD Rule 8-52 has one set of limits
intended fulfill both RACT and BARCT requirements under California law.
In contrast, BAAQMD could have specified separate RACT and BARCT limits
as they have done, for example, within BAAQMD Rule 9-9. However, BAAQMD
did not do this in adopting Rule 8-52.
Comment #3: MCAQD has not demonstrated the technical and economic
feasibility of the Section 303 limit based on the physical structures
and layout of Wincup's Maricopa facility.
Response #3: It is not appropriate for state and local agencies to
analyze the physical structures and layout of every potentially
affected facility before adopting requirements. Instead, agencies
consider typical facilities and design elements common to a class of
facilities.
As we outlined in Response to Comment 1, MCAQD did
consider the technical and cost feasibility of implementing the Section
303 standard. MCAQD provided three independent rationales for the
section 303 limit. First, in comparison to the Section 303 limit,
similar and more stringent limits are in effect in other areas such as
BAAQMD and SCAQMD. Second, by using a reasonably available and similar
control strategy employed by cupmakers to meet these similar or more
stringent limits, it is technically feasible to meet the Section 303
limit. Third, the cost of compliance with the Section 303 limit is
reasonable. In contrast, WinCup has provided no evidence that
compliance with the Section 303 limit is technically or economically
infeasible for their Phoenix facility.
Comment #4: Under current WinCup operating conditions, the VOC
content of pre-puff polystyrene fed to cup molding machines is 3.3 to
3.9 percent. Therefore, the Section 303 limit cannot be met by
installing the control equipment MCAQD assigned to the WinCup facility
in the RACT Analysis without changing the facility's pre-puff
polystyrene aging process. MCAQD
[[Page 30372]]
failed to consider and analyze how WinCup might be able to change its
pre-puff aging processes without affecting product quality. This
failure constitutes an arbitrary and capricious action.
Response #4: MCAQD reviewed the current operating conditions at
WinCup and other expandable polystyrene molding operations. They found
that block makers were able to maintain product quality while
modernizing their manufacturing equipment, using a lower VOC bead
content, and installing more efficient VOC capture and control
equipment. \6\ MCAQD questioned cupmaker Dart Container Corporation on
how it meets SCAQMD's more stringent Rule 1175 limit while making
similar high density products that WinCup cites as problematic in
implementing the Section 303 limit, and MCAQD learned that product
quality did not suffer due to an emission reduction strategy that
included a pre-puff polystyrene aging regime. \7\ MCAQD has information
from WinCup showing that they already mold 4.5 pound per cubic foot
density product from 3.0% VOC pre-puff. If WinCup installs a 90%
efficient emission control system and ages the pre-puff to 2.9% VOC, it
would meet the 3.2 pound VOC limit. \8\ We cite this evidence presented
by MCAQD to show that they have performed an analysis and have reason
to believe that the Section 303 limit has been and can be met as
described in the RACT Analysis, through aging pre-puff polystyrene
adequately and capture and control of these and other VOC emissions
prior to molding.
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\6\ See Comment and Response 24, NFRM, Maricopa County
Air Pollution Control Regulations Rule 358--Polystyrene Foam
Operations, Preamble, Response to Comments.
\7\ See Comment and Response 1 and 24, NFRM, Maricopa
County Air Pollution Control Regulations Rule 358--Polystyrene Foam
Operations, Preamble, Response to Comments.
\8\ See Comment and Response 24, NFRM, Maricopa County
Air Pollution Control Regulations Rule 358--Polystyrene Foam
Operations, Preamble, Response to Comments.
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Also, MCAQD points out that the form of Section 303 limit does not
preclude WinCup from implementing VOC emission controls on molding or
storage emissions. \9\ WinCup has presented data to MCAQD showing that
specific products lines have molding losses of 0.8 pounds of VOC and
storage losses of 1.0 pound VOC per 100 pound beads processed. MCAQD
determined that these emission rates and the product's production
volumes are high enough to make capture and control of either of these
VOC emission points cost-effective.\10\ Consequently, WinCup has
considerable flexibility in how it may choose to comply with the
Section 303 limit.
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\9\ See Comment and Response 20, NFRM, Maricopa County
Air Pollution Control Regulations Rule 358--Polystyrene Foam
Operations, Preamble, Response to Comments.
\10\ Again, MCAQD is restricted from presenting the specific
product and production volumes due to confidentiality strictures
applied by WinCup to their data.
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Lastly, we do not believe MCAQD must specify exactly how WinCup
will meet the Section 303 limit in every conceivable circumstance for
every single product line without modification of WinCup's current
operating conditions before MCAQD can adopt and apply the Section 303
limit to WinCup's operations. MCAQD need only perform an analysis
sufficient to demonstrate that the Section 303 limit is consistent with
our definition of RACT; that the Section 303 limit is reasonably
available, both on a technical and economic basis.
Comment #5: In EPA's proposed rulemaking action on Rule 358, EPA
found complete the February 22, 2005 SIP revision submitted to EPA by
ADEQ using the criteria at 40 CFR part 51, appendix V, 2.3.1 (The
Completeness Criteria). Under the Completeness Criteria, a SIP
submittal must contain a fully justified basis. ADEQ's February 22,
2005 SIP submittal is deficient because it does not support a RACT
standard for expandable polystyrene cup-makers. As a result, EPA must
disapprove this SIP revision pursuant to 40 CFR part 51, appendix V.
Response #5: The comment confuses EPA's completeness finding with
EPA's subsequent qualitative review and proposed action. The
Completeness Criteria provide a list of materials that a SIP revision
should contain when submitted to EPA for review. For a few items on the
list, a state is allowed discretion in determining the appropriateness
of the criterion to the submittal; however, EPA may contradict the
state's decision in our completeness finding. EPA's March 23, 2005
completeness finding states that Arizona submitted the material EPA
needed to review and take an action on the SIP revision. EPA is neither
required by 40 CFR part 51, appendix V, nor did we use it to review the
technical and legal sufficiency of Rule 358. It is after our
completeness finding that we determine whether or not the SIP submittal
complies with the relevant federal requirements discussed in our TSD,
proposal, and outlined in Response 1.
Comment #6: EPA is required to review and approve the technical
support submitted with the SIP revision. Among other items, the
technical support must include quantification of emission changes as a
result of the proposed SIP revision, evidence that emission limitations
are based on continuous emission reduction technology, and any modeling
required to support the revision (see 40 CFR part 51, appendix V, 2.2
(c),(e), and (h)). Otherwise, the Section 303 limit is an unsupported
numerical standard and EPA's action to approve this SIP submittal is
arbitrary and capricious.
Response #6: The comment cites the three completeness criteria
listed above as the basis for the deficiency described in Comment
5. Beyond that, the comment does not claim that these three
completeness elements were missing. Nonetheless, in our March 23, 2005
completeness finding, we found that Arizona and MCAQD submitted all the
required elements needed for EPA to review the February 22, 2005 SIP
Revision. In particular, we found that Arizona quantified emission
changes as a result of the proposed SIP revision; we found evidence
that the emission limitations are based on a continuous emission
reduction technology; and, we found that Arizona provided modeling
sufficient to support the revision.\11\ In the case of modeling, no
ambient aerometric modeling or specific aerometric models were required
for this rulemaking so the majority of the elements described within
the criterion are not relevant. MCAQD estimated VOC emissions prior to
and after rule implementation according to a specified control
strategy. This simple modeling was all we required.
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\11\ These three elements of the SIP submittal can be found in
the February 11, 2005 Arizona Administrative Register Notice of
Proposed Rulemaking and the RACT Analysis, draft January 28, 2005 at
pages 42-44 and appendices A-2 and A-3.
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We point out that our March 23, 2005 completeness finding supported
our proposed action on Arizona's February 22, 2005 parallel processing
request and SIP revision. MCAQD adopted Rule 358 on April 20, 2005
after a lengthly public comment period and Arizona submitted a new SIP
revision to complete their parallel processing request on April 25,
2005. Our May 2, 2005 completeness finding and today's final action
concern this April 25, 2005 SIP submittal. In this submittal, we note
that Arizona and MCAQD may submit additional information in support of
their SIP revision as a result of their public review and comment
period.
III. EPA Action
No comments were submitted that change our assessment that Rule 358
complies with the relevant CAA
[[Page 30373]]
requirements. Also, because our proposed action was based on a parallel
processing submittal, Maricopa County's April 20, 2005 adopted version
and subsequent submittal of Rule 358 must be similar in meaning and
content to the February 11, 2005 version of the rule published in the
Arizona Administrative Register submitted for parallel processing.
There are no substantial and meaningful differences between the two
submitted versions of Rule 358. Therefore, as authorized in section
110(k)(3) of the Act, EPA is fully approving Rule 358 into the Arizona
SIP.
IV. Statutory and Executive Order Reviews
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,
``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 Clean
Air Act. 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 Clean Air Act. 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 Clean Air Act. 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. 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.
804(2).
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 July 25, 2005. 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, Ozone, Reporting and
recordkeeping requirements, Volatile organic compounds.
Dated: May 5, 2005.
Laura Yoshii,
Acting Regional Administrator, Region IX.
0
Part 52, Chapter I, Title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for Part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart D--Arizona
0
2. Section 52.120 is amended by adding paragraph (c)(122) to read as
follows:
Sec. 52.120 Identification of plan.
* * * * *
(c) * * *
(122) A plan revision was submitted on April 25, 2005 by the
Governor's designee.
(i) Incorporation by reference.
(A) Maricopa County Environmental Services Department.
(1) Rule 358 adopted on April 20, 2005.
[FR Doc. 05-10491 Filed 5-25-05; 8:45 am]
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