[Federal Register Volume 66, Number 3 (Thursday, January 4, 2001)]
[Rules and Regulations]
[Pages 730-733]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-117]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AZ 004-0033; FRL-6896-8]


Revisions to the Arizona State Implementation Plan, Maricopa 
County Environmental Services Department

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing a limited approval and 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) emissions from open outdoor 
fires. Under authority of the Clean Air Act as amended in 1990 (CAA or 
the Act), this action simultaneously approves local rules that regulate 
these emission sources and directs Arizona State to correct rule 
deficiencies. EPA is also finalizing a limited approval and a full 
approval of revisions to the MCESD portion of the Arizona SIP 
concerning PM-10 emissions from abrasive blasting and non-metallic 
mineral mining and processing, respectively. The limited approval 
notifies Arizona State that there are rule deficiencies. These actions 
were proposed in the Federal Register on July 11, 2000.

EFFECTIVE DATE: This rule is effective on February 5, 2001.

ADDRESSES: You can inspect copies of the administrative record for this 
action at EPA's Region IX office during normal business hours. You can 
inspect copies of the submitted rule revisions at the following 
locations:

Environmental Protection Agency, Region IX, 75 Hawthorne Street, San 
Francisco, CA 94105.
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.

I. Proposed Action

    On July 11, 2000 (65 FR 42649), EPA proposed a limited approval and 
limited disapproval of the following rule that was submitted for 
incorporation into the Arizona SIP.

[[Page 731]]



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                Local agency                  Rule No.             Rule title              Adopted     Submitted
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 MCESD....................................          314  Open Outdoor Fires...........     07/18/88     01/04/90
----------------------------------------------------------------------------------------------------------------

    We proposed a limited approval because we determined that this rule 
improves the SIP and is largely consistent with the relevant CAA 
requirements. We simultaneously proposed a limited disapproval because 
some rule provisions conflict with section 110 and part D of the Act. 
These provisions include the following:
    <bullet> Dangerous materials in paragraph 302.2 not defined.
    <bullet> Control Officer discretion in paragraphs 302.3 and 302.5.
    On July 11, 2000, EPA also proposed a limited approval of the 
following rule that was submitted for incorporation into the Arizona 
SIP.

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                Local agency                  Rule No.             Rule title              Adopted     Submitted
----------------------------------------------------------------------------------------------------------------
 MCESD....................................          312  Abrasive Blasting............     07/13/88     01/04/90
----------------------------------------------------------------------------------------------------------------

    We proposed a limited approval because we determined that this rule 
improves the SIP and is largely consistent with the relevant CAA 
requirements. The approval is limited, because some rule provisions 
conflict with section 110 of the Act, but there is no disapproval. 
These provisions include the following:
    <bullet> Control Officer discretion in paragraphs 302.4.
    On July 11, 2000, EPA also proposed a full approval of the 
following rule that was submitted for incorporation into the Arizona 
SIP.

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                Local agency                  Rule No.             Rule title              Adopted     Submitted
----------------------------------------------------------------------------------------------------------------
 MCESD....................................          316  Nonmetallic Mineral Mining        04/21/99     08/04/99
                                                          and Processing.
----------------------------------------------------------------------------------------------------------------

    The rule meets all of the requirements of the Act.
    Our proposed action contains more information on the rules and our 
evaluation.

II. Public Comments and EPA Responses

    EPA's proposed action provided a 30-day public comment period. 
During this period, we did not receive any comments.

III. EPA Action

    As authorized in sections 110(k)(3) and 301(a) of the Act, EPA is 
finalizing a limited approval of Rule 314. This action incorporates the 
submitted rule into the Arizona SIP, including those provisions 
identified as deficient. As authorized under section 110(k)(3), EPA is 
simultaneously finalizing a limited disapproval of the rule. As a 
result, sanctions will be imposed unless EPA approves subsequent SIP 
revisions that correct the rule deficiencies within 18 months of the 
effective date of this action. These sanctions will be imposed under 
section 179 of the Act as described in 59 FR 39832 (August 4, 1994). In 
addition, EPA must promulgate a federal implementation plan (FIP) under 
section 110(c) unless we approve subsequent SIP revisions that correct 
the rule deficiencies within 24 months. Note that the submitted rule 
has been adopted by the MCESD, and EPA's final limited disapproval does 
not prevent the local agency from enforcing it.
    As authorized in sections 110(k)(3) and 301(a) of the Act, EPA is 
finalizing a limited approval of Rule 312. This action incorporates the 
submitted rule into the Arizona SIP, including those provisions 
identified as deficient. Sanctions and FIP requirements are not 
triggered by this action.
    As authorized in sections 110(k)(3) and 301(a) of the Act, EPA is 
finalizing a full approval of Rule 316.

IV. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order (E.O.) 12866, entitled 
``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 E.O. 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 E.O. 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 affects 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. If the mandate is unfunded, 
EPA must provide to 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, E.O. 13084 requires EPA to 
develop an effective process permitting elected and other 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that

[[Page 732]]

significantly or uniquely affect their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. Accordingly, the requirements 
of section 3(b) of E.O. 13084 do not apply to this 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. E.O. 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 E.O. 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 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 E.O. 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 
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 final rule will not have a significant impact on a substantial 
number of small entities because SIP approvals 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 approval 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.
    EPA's disapproval of the state request under section 110 and 
subchapter I, part D of the Clean Air Act does not affect any existing 
requirements applicable to small entities. Any pre-existing federal 
requirements remain in place after this disapproval. Federal 
disapproval of the state submittal does not affect state 
enforceability. Moreover, EPA's disapproval of the submittal does not 
impose any new Federal requirements. Therefore, 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 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 
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 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 action because it 
does not require the public to perform activities conducive to the use 
of VCS.

H. Submission to Congress and the Comptroller General

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

I. 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 March 5, 2001. 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

[[Page 733]]

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, Particulate matter, Reporting 
and recordkeeping requirements.

    Dated: October 4, 2000.
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 F--California

    2. Section 52.120 is amended by adding paragraphs (c)(67)(i)(D) and 
(c)(94)(i)(D) to read as follows:


Sec. 52.120  Identification of plan.

* * * * *
    (c) * * *
    (67) * * *
    (i) * * *
    (D) Rules 312 and 314, adopted on July 13, 1998.
* * * * *
    (94) * * *
    (i) * * *
    (D) Rule 316, adopted on April 21, 1999.
* * * * *
[FR Doc. 01-117 Filed 1-3-01; 8:45 am]
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