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

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[Federal Register: July 11, 2000 (Volume 65, Number 133)]
[Proposed Rules]
[Page 42649-42653]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11jy00-13]

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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
----------------------------------------------------------------------------------------------------------------
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
------------------------------------------------------------------------
Date Event
------------------------------------------------------------------------
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).
------------------------------------------------------------------------

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

[[Page 42653]]

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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