[Federal Register: March 31, 1998 (Volume 63, Number 61)]
[Rules and Regulations]               
[Page 15303-15305]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31mr98-14]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AZ 059-0011; FRL-5988-9]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing limited approval and limited disapproval of 
revisions to the Arizona State Implementation Plan (SIP) proposed in 
the Federal Register on February 9, 1998. This final action will 
incorporate these rules into the federally approved SIP. The intended 
effect of finalizing this action is to regulate emissions of 
particulate matter (PM) in accordance with the requirements of the 
Clean Air Act, as amended in 1990 (CAA or the Act). The revised rules 
control PM emissions from residential wood combustion. Thus, EPA is 
finalizing simultaneous limited approval and limited disapproval under 
CAA provisions regarding EPA action on SIP submittals and general 
rulemaking authority because these revisions, while strengthening the 
SIP, also do not fully meet the CAA provisions regarding plan 
submissions and requirements for nonattainment areas. As a result of 
this limited disapproval EPA will be required to impose highway funding 
or emission offset sanctions under the CAA unless the State submits and 
EPA approves corrections to the identified deficiencies within 18 
months of the effective date of this disapproval. Moreover, EPA will be 
required to promulgate a Federal implementation plan (FIP) unless the 
deficiencies are corrected within 24 months of the effective date of 
this disapproval.

EFFECTIVE DATE: This action is effective on April 30, 1998.

ADDRESSES: Copies of the rules and EPA's evaluation report for the 
rules are available for public inspection at EPA's Region IX office 
during normal business hours. Copies of the submitted rules are also 
available for inspection at the following locations:

Environmental Protection Agency, Air Docket (6102), 401 ``M'' Street, 
S.W., Washington, D.C. 20460
Arizona Department of Environmental Quality, Air Quality Division, 3033 
North Central Avenue, Phoenix, AZ 85012
Maricopa County Environmental Services Division, Air Quality Division, 
1001 North Central Avenue, #201, Phoenix, AZ 85004

FOR FURTHER INFORMATION CONTACT: Patricia A. Bowlin, Rulemaking Office, 
AIR-4, Air Division, U.S. Environmental Protection Agency, Region IX, 
75 Hawthorne Street, San Francisco, CA 94105-3901, Telephone: (415) 
744-1188.

SUPPLEMENTARY INFORMATION:

I. Applicability

    The rules being approved into the Arizona SIP are Maricopa County 
(Maricopa) Rule 318, Approval of Residential Woodburning Devices, and 
the Maricopa Residential Woodburning Restriction Ordinance (Woodburning 
Ordinance). These rules were submitted by the Arizona Department of 
Environmental Quality (ADEQ) to EPA on August 31, 1995.

II. Background

    On February 9, 1998 in 63 FR 6505, EPA proposed granting limited 
approval and limited disapproval into the Arizona SIP of the following 
rules: Maricopa Rule 318 and the Woodburning Ordiance. Rule 318 and the 
Woodburning Ordinance were adopted by Maricopa Environmental Services 
Department on October 5, 1994. These rules were adopted as part of 
Maricopa's efforts to achieve the National Ambient Air Quality Standard 
(NAAQS) for PM-10 and in response to CAA requirements. A detailed 
discussion of the background for the rules and the nonattainment area 
is provided in the proposed rule (PR) cited above.
    EPA has evaluated the submitted rules for consistency with the 
requirements of the CAA and EPA regulations and EPA's interpretation of 
these requirements as expressed in the various EPA policy guidance 
documents referenced in the PR. EPA is finalizing the limited approval 
of these rules in order to strengthen the SIP. EPA is also finalizing 
the limited disapproval requiring the correction of the following rule 
deficiencies: inappropriate discretion by the Control Officer 
(Director's discretion) in the approval of woodburning devices and 
reference of non-EPA-approved woodburning device certification 
procedures. A detailed discussion of the rule provisions and 
evaluations has been provided in the PR and in the technical support 
document (TSD) available at EPA's Region IX office (TSD dated January 
1998).

III. Response to Public Comments

    A 30-day public comment period was provided in 63 FR 6505. EPA 
received comment letters on the PR from two parties: ADEQ and the 
Hearth Products Association (HPA). The comments have been evaluated by 
EPA and a summary of the comments and EPA's responses are set forth 
below.

Comment

    ADEQ comments that the reference in Rule 318 to non-EPA-approved 
certification procedures for woodburning devices is necessary because 
EPA's wood heater standards found in 40 CFR Part 60 Subpart AAA do not 
apply to fireplaces and other woodburning technologies found in 
Maricopa County. ADEQ believes that EPA cannot disapprove the use of 
non-EPA procedures when EPA has neither developed federal certification 
procedures nor approved locally-developed certification procedures for 
clean woodburning technologies that are not addressed in Subpart AAA. 
ADEQ states that EPA needs to approve the certification methodology so 
that air pollution agencies can continue to address woodsmoke emissions 
from devices not subject to EPA certification.

[[Page 15304]]

Comment

    HPA comments that EPA's wood heater certification standards in 
Subpart AAA do not address all woodburning devices and that the non-
EPA-approved testing and certification protocols referenced in 
submitted Rule 318 are ``technically and legally appropriate'' for 
evaluating woodburning devices not addressed by Subpart AAA. HPA notes 
that EPA has approved Colorado's Regulation No. 4 which provides for 
the approval of woodburning devices that are not addressed by EPA's 
certification procedures. HPA states that certification protocols for 
woodburning devices that are not subject to Subpart AAA provide 
incentives for the development of clean woodburning technologies and 
are necessary to avoid denial of access to key markets.

Response

    EPA acknowledges that its certification standards in Subpart AAA do 
not cover all woodburning technologies and that Maricopa's residential 
wood combustion control program addresses woodburning devices that are 
not covered by Subpart AAA. Certification standards for woodburning 
devices can be approved into SIPs if they are submitted for approval to 
EPA and are found by EPA to meet federal standards and criteria. For 
example, the pellet stove certification procedure in Colorado 
Regulation No. 4 adopted on June 24, 1993 was submitted to and approved 
by EPA. 40 CFR 52.320(c)(82)(i)(A). Rule 318, however, references a 
certification protocol that has never been submitted to EPA for review 
and approval. For this reason and the director's discretion deficiency 
discussed elsewhere in the PR, EPA cannot fully approve Maricopa Rule 
318 and the associated Woodburning Ordinance.

IV. EPA Action

    EPA is finalizing limited approval and limited disapproval of the 
above-referenced rules. The limited approval of these rules is being 
finalized under section 110(k)(3) in light of EPA's authority pursuant 
to section 301(a) to adopt regulations necessary to further air quality 
by strengthening the SIP. The approval is limited because EPA's action 
also contains a simultaneous limited disapproval. In order to 
strengthen the SIP, EPA is granting limited approval of these rules 
under sections 110(k)(3) and 301(a) of the CAA. This action approves 
the rules into the SIP as federally enforceable rules.
    At the same time, EPA is finalizing limited disapproval of these 
rules because they contain deficiencies, and, as such, the rules do not 
fully meet the requirements of Part D of the Act. As stated in the PR, 
upon the effective date of this FR, the 18-month clock for sanctions 
and the 24-month FIP clock will begin. Sections 179(a) and 110(c). If 
the State does not submit the required corrections and EPA does not 
approve the submittal within 18 months of the FR, either the highway 
sanction or the offset sanction will be imposed at the 18-month mark. 
It should be noted that the rules covered by this FR have been adopted 
by the Maricopa and are currently in effect in Maricopa County. EPA's 
limited disapproval action will not prevent a Maricopa or EPA from 
enforcing these rules.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any state implementation plan. Each request for revision to 
the state implementation plan shall be considered separately in light 
of specific technical, economic, and environmental factors and in 
relation to relevant statutory and regulatory requirements.

V. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from E.O. 12866 review.

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    SIP approvals under sections 110 and 301, and subchapter I, part D 
of the CAA do not create any new requirements but simply approve 
requirements that the State is already imposing. Therefore, because the 
Federal SIP approval does not impose any new requirements, I certify 
that it does not have a significant impact on any small entities 
affected. Moreover, due to the nature of the Federal-State relationship 
under the CAA, preparation of a flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of State action. The 
Clean Air Act forbids EPA to base its action concerning SIPS on such 
grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 
42 U.S.C. 7410(a)(2).

C. Unfunded Mandates

    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
private sector, of $100 million or more. Under Section 205, EPA must 
select the most cost-effective and least burdensome alternative that 
achieves the objectives of the rule and is consistent with statutory 
requirements. Section 203 requires EPA to establish a plan for 
informing and advising any small governments that may be significantly 
or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new 
Federal requirements. Accordingly, no additional costs to State, local, 
or tribal governments, or to the private sector, result from this 
action.

D. Submission to Congress and the General Accounting Office

    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. This rule is not a 
``major'' rule as defined by 5 U.S.C. 804(2).

E. Petitions for Judicial Review

    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 June 1, 1998.

[[Page 15305]]

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, Reporting and recordkeeping 
requirements, Particulate matter.

    Note: Incorporation by reference of the State Implementation 
Plan for the State of Arizona was approved by the Director of the 
Federal Register on July 1, 1982.

    Dated: March 20, 1998.
Felicia Marcus,
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)(82)(i)(D) to 
read as follows:


Sec. 52.120  Identification of plan.

* * * * *
    (c) * * *
    (82) * * *
    (i) * * *
    (D) Rule 318 and Residential Woodburning Restriction Ordinance, 
adopted on October 5, 1994.
* * * * *
[FR Doc. 98-8414 Filed 3-30-98; 8:45 am]
BILLING CODE 6560-50-P