
[Federal Register: November 9, 2009 (Volume 74, Number 215)]
[Rules and Regulations]               
[Page 57612-57615]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09no09-13]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2009-0042; FRL-8902-6]

 
Revisions to the Arizona State Implementation Plan, Maricopa 
County Air Quality Department and Maricopa County

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve a revision to the 
Maricopa County Air Quality Department (MCAQD) portion of the Arizona 
State Implementation Plan (SIP). These revisions concern PM-10 
emissions from open outdoor fires and indoor fireplaces at commercial 
and institutional establishments, primary and secondary MCAQD ambient 
air quality standards, and residential woodburning devices. We are 
approving local rules under the Clean Air Act as amended in 1990 (CAA 
or the Act).

DATES: This rule is effective on January 8, 2010 without further 
notice, unless EPA receives adverse comments by December 9, 2009. If we 
receive such comments, we will publish a timely withdrawal in the 
Federal Register to notify the public that this direct final rule will 
not take effect.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2009-0042, by one of the following methods:
     Federal eRulemaking Portal: www.regulations.gov. Follow 
the on-line instructions.
     E-mail: steckel.andrew@epa.gov.
     Mail or deliver: Andrew Steckel (Air-4), U.S. 
Environmental Protection Agency Region IX, 75 Hawthorne Street, San 
Francisco, CA 94105.
    Instructions: All comments will be included in the public docket 
without change and may be made available online at www.regulations.gov, 
including any personal information provided, unless the comment 
includes Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. Information that you 
consider CBI or otherwise protected should be clearly identified as 
such and should not be submitted through www.regulations.gov or e-mail. 
www.regulations.gov is an ``anonymous access'' system, and EPA will not 
know your identity or contact information unless you provide it in the 
body of your comment. If you send e-mail directly to EPA, your e-mail 
address will be automatically captured and included as part of the 
public comment. If EPA cannot read your comment due to technical 
difficulties and cannot contact you for clarification, EPA may not be 
able to consider your comment.
    Docket: The index to the docket for this action is available 
electronically at www.regulations.gov and in hard copy at EPA Region 
IX, 75 Hawthorne Street, San Francisco, California. While all documents 
in the docket are listed in the index, some information may be publicly 
available only at the hard copy location (e.g., copyrighted material), 
and some may not be publicly available in either location (e.g., CBI). 
To inspect the hard copy materials, please schedule an appointment 
during normal business hours with the contact listed in the FOR FURTHER 
INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Alfred Petersen, EPA Region IX, (415) 
947-4118, petersen.alfred@epa.gov.

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 are the purposes of the submitted rule revisions?
II. EPA's Evaluation and Action
    A. How is EPA evaluating the rules?
    B. Do the rules meet the evaluation criteria?
    C. EPA recommendation to further improve a rule.
    E. Public comment and final action.
III. Statutory and Executive Order Reviews

I. The State's Submittal

A. What rules did the State submit?

    Table 1 lists the rules we are approving with the dates that the 
rules were amended by the local air agencies and submitted by the 
Arizona Department of Environmental Quality (ADEQ).

[[Page 57613]]



                                            Table 1--Submitted Rules
----------------------------------------------------------------------------------------------------------------
                                                                                         Revised or
         Local agency               Ordinance or rule No.             Rule title          adopted     Submitted
----------------------------------------------------------------------------------------------------------------
MCAQD.........................  Rule 314.....................  Open Outdoor Fires and      03/12/08     07/10/08
                                                                Indoor Fireplaces at        Revised
                                                                Commercial and
                                                                Institutional
                                                                Establishments.
MCAQD.........................  Rule 510.....................  Air Quality Standards..     11/01/06     06/07/07
                                                                                            Adopted
MC............................  Ordinance P-26...............  Residential Woodburning     03/26/08     07/10/08
                                                                Restriction Ordinance.      Revised
----------------------------------------------------------------------------------------------------------------

    On January 11, 2009, the submittal of MCAQD Rule 314 and MC 
Ordinance P-26 was determined by operation of law to meet the 
completeness criteria in 40 CFR part 51, appendix V, which must be met 
before formal EPA review. On December 6, 2007, the submittal of MCAQD 
Rule 510 was determined by operation of law to meet the completeness 
criteria.

B. Are there other versions of these rules?

    There is no previous version of MC Ordinance P-26 submitted or in 
the SIP.
    A version of MCAQD Rule 314 was approved into the SIP on May 8, 
2007 (72 FR 25973). Obsolete versions of the SIP Rules 50, 51, 52, and 
53 were approved into the SIP on July 27, 1972 (37 FR 15081) and should 
be removed from the SIP.
    A version of MCAQD Rule 510 on which we have not acted, was adopted 
on July 13, 1988 and submitted on January 4, 1990. While we can act 
only on the most recent version, we have considered the contents of the 
previous submittal.

C. What are the purposes of the submitted rule revisions?

    Section 110(a) of the Clean Air Act (CAA) requires states to submit 
regulations that control volatile organic compounds, nitrogen oxides, 
particulate matter, and other air pollutants which harm human health 
and the environment. These rules were developed as part of local air 
districts' programs to control these pollutants.
    The purposes of revisions to MCAQD Rule 314 are as follows:

     314.202: Area A is defined (generally the highly-populated 
area of Maricopa County (MC)).
     314.302.1: A list of fires prohibited during restricted-
burn periods in MC, but allowed from May 1 through September 30 in Area 
A, is revised.
     314.302.2: A list of fires prohibited during restricted-
burn periods in MC and also prohibited from May 1 to September 30 in 
Area A is revised.
     314.303.1: A list of fires allowed any time of the year in 
MC or Area A is revised.
     314.303.2: A list of fires prohibited during restricted-
burn periods in MC is revised.
     314.303.3: A list of fires prohibited during restricted-
burn periods in MC and also prohibited from May 1 through September 30 
in Area A is revised. Woodburning chimineas and fire pits are added to 
the applicability of the rule.
     314.302.1 and 314.302.2: A list of fires that require burn 
permits from the MCAQD is revised. A list of other fires prohibited 
during restricted-burn periods, but that may be set after a person 
verifies with the MCAQD that a restricted-burn period is not in effect, 
is revised.
     314.304: Air curtain destructor burning requires a Title V 
permit from the ADEQ and a site-specific burn plan. Procedures for the 
air curtain destructor in Rule 314.appendix are revised.
     314.306: The burning is prohibited in indoor fireplaces at 
commercial and institutional establishments during a restricted-burn 
period, except for gaseous fuels.

    The purposes of MCAQD Rule 510 are as follows:

     The rule establishes maximum limiting levels of ambient 
air pollutants for protection of human health and public welfare.
     The rule requires public notification on ambient air 
quality through an Annual Air Quality Monitoring Report and a Daily Air 
Quality Index Report.

    The purposes of revisions to MC Ordinance P-16 are as follows:

     P-26.(overall): Various definitions are added or revised. 
Civil penalties are added for failure to curtail burning as required on 
restricted burn days.
     P-26.1.B: Barbecue devices and mesquite grills are removed 
from the applicability of the ordinance.
     P-26.2.G: The moisture content of appropriate fuels is 
reduced to 20% from 30%.
     P-26.2: Standards for curtailment of burning are added for 
PM-2.5 and ozone in addition to the existing standard for PM-10. The 
National Ambient Air Quality Standards for particulate matter are added 
for the new PM-2.5 standard in addition to the existing standard for 
PM-10. The requirement that County Buildings Codes supersede the 
requirements of Ordinance P-26 is added.
     P-26.3.A: Restricted-burn periods declarations are 
expanded to every day of the year.
     P-26.3.B: There is added the prohibition to operate 
outdoor fire pits, woodburning chimineas, or similar outdoor devices 
during a restricted-burn period such that there are visible smoke 
emissions. Such devices must be installed per the manufacturer's 
instructions and operated with manufacturer's recommended fuel.
     P-26.3.C: There is clarified that during a restricted-burn 
period, a person may operate a residential woodburning device if 
exempted by the Control Officer or if it meets the standards of MCAQD 
Rule 318 and there is no visible smoke emission. There is added that 
during a restricted-burn period, a person may operate a residential 
woodburning device, outdoor fire pit, chiminea, or similar outdoor fire 
if operated exclusively with natural gas or propane.
     P-26.3.D: The possibility of exceeding the ozone standard 
is added as a criterion for declaring a restricted-burn period.

    EPA's technical support document (TSD) has more information about 
these rules.

II. EPA's Evaluation and Action

A. How is EPA evaluating the rules?

    Generally, SIP rules must be enforceable (see section 110(a) of the 
CAA) and must not relax existing requirements (see sections 110(l) and 
193). SIP rules in serious PM-10 nonattainment areas must require for 
significant sources best available control measures (BACM), including 
best available control technology (BACT) (see section 189(b)). MCAQD 
regulates a serious PM-10 nonattainment area (see 40 CFR part 81), so 
MCAQD Rule 314 must fulfill the requirements of BACM/BACT. MCAQD Rule 
510 is an administrative rule with no specific BACM/BACT requirements.

[[Page 57614]]

    Guidance and policy documents that we used to help evaluate rules 
consistently include the following:

     PM-10 Guideline Document (EPA-452/R-93-008).
     Technical Information Document for Residential Wood 
Combustion Best Available Control Measures, (EPA-450/2-92-002).
     Minimum BACM/RACM Control Measures for Residential Wood 
Combustion Rules, EPA Region IX (September 16, 2008).

B. Do the rules meet the evaluation criteria?

    We believe that MC Rules 314 and 510 and MC Ordinance P-26 are 
consistent with the relevant policy and guidance regarding 
enforceability, BACM/BACT, and SIP relaxations and should be given full 
approval. The TSD has more information on our evaluation.

C. EPA recommendation to further improve a rule

    The TSD describes an additional rule revision that does not affect 
EPA's current action but is recommended for the next time the local 
agency modifies MCAQD Rule 510.

D. Public comment and final action

    Because EPA believes that submitted MCAQD Rules 314 and 510 and MC 
Ordinance P-26 fulfill all relevant requirements, we are proposing to 
fully approve them as described in section 110(k)(3) of the CAA. We 
will accept comments from the public on this proposal for the next 30 
days. Unless we receive convincing new information during the comment 
period, we intend to publish a final approval action that will 
incorporate these rules into the federally enforceable SIP.
    Please note that if EPA receives adverse comment on an amendment, 
paragraph, or section of this rule and if that provision may be severed 
from the remainder of the rule, EPA may adopt as final those provisions 
of the rule that are not the subject of an adverse comment.

III. 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 January 8, 2010. 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: March 12, 2009.
Laura Yoshii,
Acting Regional Administrator, Region IX.

    Editorial Note: This document was received by the Office of the 
Federal Register on November 3, 2009.

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 paragraphs (c)(140)(i)(B) and 
(141) to read as follows:

[[Page 57615]]

Sec.  52.120  Identification of plan.

* * * * *
    (c) * * *
    (140) * * *
    (i) * * *
    (B) Maricopa County Air Quality Department.
    (1) Rule 510, ``Air Quality Standards,'' excluding Appendix G to 
the Maricopa County Air Pollution Control Regulations, adopted on July 
13, 1988 and revised on November 1, 2006.
* * * * *
    (141) The following amended rules were submitted on July 10, 2008, 
by the Governor's designee.
    (i) Incorporation by reference.
    (A) Maricopa County.
    (1) Ordinance P-26, ``Residential Woodburning Restriction 
Ordinance,'' adopted on October 5, 1994 and revised on March 26, 2008.
    (B) Maricopa County Air Quality Department.
    (1) Rule 314, ``Open Outdoor Fires and Indoor Fireplaces at 
Commercial and Institutional Establishments,'' adopted on July 13, 1988 
and revised on March 12, 2008.
* * * * *
[FR Doc. E9-26861 Filed 11-6-09; 8:45 am]

BILLING CODE 6560-50-P
