[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.

----------------------------------------------------------------------------------------------------------------
                                          Rule                  Rule title              Adopted     Submitted
----------------------------------------------------------------------------------------------------------------
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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