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ENVIRONMENTAL PROTECTION AGENCY
Environmental Protection Agency
CFR Citation: 40 CFR Part 52
AZ ID: [AZ 120-0063; FRL-7661-2]
NOTICE: PROPOSED RULES
ACTION: Air quality implementation plans; approval and promulgation; various States:
DOCUMENT ACTION: Proposed rule.
SUBJECT CATEGORY: Revisions to the Arizona State Implementation Plan, Arizona Department of Environmental Quality
DATES: Any comments must arrive by June 14, 2004.
DOCUMENT SUMMARY: EPA is proposing a full approval of some revisions to the
Arizona Department of Environmental Quality (ADEQ) portion of the
Arizona State Implementation Plan (SIP) and a limited approval/limited
disapproval of other revisions to the Arizona SIP. These revisions
concern sulfur dioxide (SO
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action on local rules that regulate this emission source under the
Clean Air Act as amended in 1990 (CAA or the Act). We are taking
comments on this proposal and plan to follow with a final action.
SUMMARY: Arizona,
SUPPLEMENTAL 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 Rule Revisions? II. EPA's Evaluation and Action
A. How Is EPA Evaluating the Rules?
B. Do the Ruled Meet the Evaluation Criteria?
C. What Are the Rule Deficiencies?
D. Proposed Action and Public Comment
III. Statutory and Executive Order Reviews
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 and submitted by the Arizona Department of Environmental Quality (ADEQ).
Table 1.Submitted Rules
Local agency Rule
On November 14, 2003, the submittal of Rules R182715 (sections F, G, and H) and R182715.01 was found to meet the completeness criteria in 40 CFR part 51, appendix V, which must be met before formal EPA review. On December 18, 1998, the submittal of Rules R182715.02 and R182appendix 8 was found to meet the completeness criteria. B. Are There Other Versions of These Rules?
We approved versions of Rules R182715, R182715.01, and R182 715.02 into the SIP as Rule R93515 at various times. Specifically, we approved a version of Rule R182715 (sections F, G, and H) into the SIP as Rule 93515 (sections A and C.1 (a through g)), portions of which were submitted on September 20, 1979, July 17, 1980, and February 2, 1983, on January 14, 1983 (48 FR 1717) and October 19, 1984 (49 FR 41026). Part was submitted on September 20, 1979; part submitted on July 17, 1980; part submitted on July 13, 1981 and approved at 48 FR 1717 (January 14, 1983), part submitted on June 3, 1982 and approved at 47 FR 42572 (September 28, 1982), and part submitted on February 3, 1984 and approved at 49 FR 41026 (October 19, 1984).
We approved a version of Rule R182715.01 into the SIP as Rule R9 3515 (sections C.1(h and i), C.2, C.3, C.4, C.5, and C.6), portions of which were submitted on September 20, 1979, July 13, 1981, June 3, 1982, and February 3, 1984, on January 14, 1983 (48 FR 1717) and Ocbober 19, 1984 (49 FR 41026).
We approved a version of Rule R182715.02 into the SIP as Rule R9 3515 (sections C.8 and C.9), portions of which were submitted on September 20, 1979 and June 3, 1982, on January 14, 1983 (48 FR 1717).
We approved a version of Rule R182appendix 8 into the SIP as Rule R93appendix 8 (sections 8A.3.1 and 8A.3.2), submitted on June 3, 1982, on September 28, 1982 (47 FR 42572).
C. What Is the Purpose of the Submitted Rule Revisions?
Sulfur dioxide is formed by the combustion of fuels and by certain
industrial processes, including those at smelters. High concentrations
of SO
II. EPA's Evaluation and Action
A. How Is EPA Evaluating the Rules?
Pursuant to the CAA as amended in 1977, EPA designated six areas in
Arizona as nonattainment for the SO
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Rule R93515 provides SO
Under the CAA as amended in 1990, areas designated nonattainment
prior to enactment of the amendments retained their nonattainment
designations by operation of law. See section 107(d)(1)(C) of the CAA.
Thus, the six areas covered by R93515 remained nonattainment for the
SO
The subpart 1 (of part D) requirement that is applicable to the submitted rules is section 172(c)(1): Such plan provisions shall provide for the implementation of all reasonably available control measures as expeditiously as practicable (including such reductions in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology (RACT)) and shall provide for attainment of the NAAQS. The submitted rules are evaluated herein to ensure they comply with RACT and that they contain the provisions necessary to ensure that the rules are enforceable. In addition, we evaluate the submitted rules for approvability under sections 110(l) and 193 of the CAA.
Guidance and policy documents that we used to help evaluate
specific enforceability requirements consistently include the following:
The submitted rules constitute sourcespecific SO
As noted above, the San Manuel, Hayden, and Miami areas are
designated as nonattainment for the SO
Implementation and Maintenance Plan (June 2002), submitted to EPA on
June 20, 2002; Miami Sulfur Dioxide Nonattainment Area State
Implementation and Maintenance Plan (June 2002), submitted to EPA on
June 26, 2002; Hayden Sulfur Dioxide Nonattainment Area State
Implementation and Maintenance Plan (June 2002), submitted to EPA on June 27, 2002.
Since the submitted rules are consistent with the control strategy
that provides for attainment of the SO
C. What Are the Rule Deficiencies?
These provisions of Rule R182appendix 8 conflict with section 110 and part D of the CAA and prevent full approval of the SIP revision.
D. Proposed Action and Public Comment
In order to strengthen the SIP, EPA is proposing a full approval of ADEQ's submitted Rules R182715 (sections F, G, and H), R182715.01, and R182715.02 as fulfilling the requirements of RACT, SIP relaxations, and enforceability.
Because of the above deficiencies, we cannot grant full approval of Rule R182appendix 8 under section 110(k)(3) and part D. However, EPA may grant a limited approval of Rule R182appendix 8 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.
EPA is proposing a limited approval of Rule R182appendix 8 under sections 110(k)(3) and 301(a) of the CAA as meeting the requirements of section 110(a) and part D. At the same time, EPA is also proposing a limited disapproval of Rule R182appendix 8 because it contains deficiencies which must be corrected in order to fully meet the requirements of section 110 and part D of the CAA. Under section 179(a)(2), if the Administrator disapproves a submission under section 110(k) for an area designated nonattainment, based on the submission's failure to meet one or more of the elements required by the CAA, the Administrator must apply one of the sanctions set forth in section 179(b) unless the deficiency has been corrected within 18 months of such disapproval. Section 179(b) provides two sanctions available to the Administrator: Highway funding and offsets. The 18month period referred to in section 179(a) will begin on the effective date of EPA's final limited disapproval. Moreover, the final disapproval triggers the Federal implementation plan (FIP) requirement under section 110(c). It should be noted that the rules covered by this document have been adopted and are currently in effect. EPA's final limited disapproval action will not prevent ADEQ or EPA from enforcing these rules. Also, if we finalize this action as proposed, the submitted rules will supersede the corresponding existing SIP rule in the Arizona SIP.
We will accept comments from the public on the proposed action for the next 30 days.
III. Statutory and Executive Order Reviews
A. Executive Order 12866, Regulatory Planning and Review
The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled ``Regulatory Planning and Review.''
B. Paperwork Reduction Act
This proposed 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.)
C. 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 notforprofit enterprises, and small governmental jurisdictions.
This 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 approve 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.
Moreover, due to the nature of the FederalState 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, 25566 (1976); 42 U.S.C. 7410(a)(2).
D. Unfunded Mandates Reform Act
Under sections 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 the private sector, of $100 million or more. Under section 205, EPA must select the most costeffective 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 proposed 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 proposes to approve preexisting 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.
E. Executive Order 13132, Federalism
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
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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 proposes to approve 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.
F. Executive Order 13175, Coordination With Indian Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure ``meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.'' This proposed rule does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments, 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. Thus, Executive Order 13175 does not apply to this proposed rule.
EPA specifically solicits additional comment on this proposed rule from tribal officials.
H. Executive Order 13045, Protection of Children From Environmental Health Risks and Safety Risks
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 proposed rule is not subject to Executive Order 13045 because
it does not involve decisions intended to mitigate environmental health or safety risks.
I. Executive Order 13211, Actions That Significantly Affect Energy Supply, Distribution, or Use
This proposed rule is not subject to Executive Order 13211, ``Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. J. 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.
The EPA believes that VCS are inapplicable to this proposed action. Today's action 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, Intergovernmental relations, Reporting and recordkeeping requirements, Sulfur oxides.
Authority: 42 U.S.C. 7401 et seq.
Dated: April 28, 2004.
Deborah Jordan,
Acting Regional Administrator, Region IX.
[FR Doc. 0410940 Filed 51304; 8:45 am]
BILLING CODE 656050P
FOR FURTHER INFORMATION CONTACT Al Petersen, Rulemaking Office (AIR-
4), U.S. Environmental Protection Agency, Region IX, (415) 9474118,
petersen.alfred@epa.gov.
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