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ENVIRONMENTAL PROTECTION AGENCY
Environmental Protection Agency
CFR Citation: 40 CFR Part 52
AZ ID: [AZ 120-0063; FRL-7820-2]
NOTICE: RULES
ACTION: Air quality implementation plans; approval and promulgation; various States:
DOCUMENT ACTION: Final rule.
SUBJECT CATEGORY: Revisions to the Arizona State Implementation Plan, Arizona Department of Environmental Quality
DATES: This rule is effective on December 1, 2004.
DOCUMENT SUMMARY: EPA is finalizing 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 another revision to the SIP. This action was proposed in
the Federal Register on May 14, 2004 and concerns sulfur dioxide
(SO
SUMMARY: Arizona,
SUPPLEMENTAL INFORMATION
Throughout this document, ``we,'' ``us'' and ``our'' refer to EPA.I. Proposed Action
The following table lists the rules addressed by this action, with
the dates that they were adopted and submitted by the ADEQ.
Local agency Rule
On May 14, 2004 (69 FR 26786), EPA proposed 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. On the same date, we proposed a
limited approval and limited disapproval of Rule R182appendix 8. [[Page 63322]]
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 of Rule R182appendix 8 conflict with section 110
and part D of the Act. These provisions include the following:
1. Sections A.8.1.2 and A.8.2 contain excessive Director's discretion by allowing the Director to approve an equivalent method to calculate the sulfur content without providing the criteria that will be used to determine approvability.
2. Sections A.8.1.2.1.1, A.8.1.2.1.2, and A.8.1.2.1.3 should clarify how a representative sample should be taken from belt feeders, railcars, and trucks so that the sampling process is not biased.
3. Sections A.8.1.2.3.1 and A.8.1.2.3.2 should provide specific test methods for the ``barium sulfate'' and ``potassium iodide'' procedures.
4. Section A.8.2.5.5 should provide a specific test method for
``chemical gravimetric means.'' Also the accuracy is stated as +50%,
but it should be a
5. The reference in A8.3.1 should be changed from R182715(C)(4) to R182715.01(K)(O). Also, the reference in A.8.3.2 should be changed from R182715(C)(7)(v) to R182715.01(Q).
Based on information received during the comment period of our
proposed action, we no longer consider deficiency
II. Public Comments and EPA Responses
EPA's proposed action provided a 30day public comment period ending on June 14, 2004. We received comments from the following parties:
Kenneth Evans, Arizona Mining Association (AMA); letter dated June 14, 2004 and received on June 14, 2004.
Nancy Wrona, ADEQ; letter dated June 11, 2004 and received on June 11, 2004.
The comments and our responses are summarized below.
Comment 1: EPA cited as a deficiency excessive ADEQ Director's discretion to approve alternate analytical procedures in Appendix 8. AMA and ADEQ state that Title V permits, which could include alternate analytical procedures approved by the ADEQ Director's discretion, are then subject to EPA approval by the review and objection authority granted to EPA under Title V. Therefore, requiring another EPA approval of an alternate analytical procedure approved by the ADEQ Director's discretion is duplicative and unwarranted.
Response: Appendix 8 in its present form allows the ADEQ Director to approve an ``equivalent method'' without regard to the status of a Title V permit or EPA's approval of that permit. First, as noted in our proposed rule, the term ``equivalent method'' should be replaced with the term ``alternative method,'' as these phrases have distinct meanings. Second, not all alternative procedures under Appendix 8 would necessarily end up in a Title V permit. Finally, depending on EPA's workload, we may not review every Title V permit thoroughly, and our default approval of an alternative procedure by our oversight, would not comply with the intent of Clean Air Act section 110(i). Appendix 8 must be revised to provide the criteria that will be used to determine approvability of an alternative method or must explicitly require the approval of both the ADEQ Director and EPA of an alternate analytical procedure.
Comment 2: EPA cited as a deficiency the absence of references to specific test methods for barium sulfate and potassium iodine procedures, as well as ``chemical gravimetric means.'' AMA states that the chemical gravimetric means of analysis in sections A.8.1.2.3.1, A.8.1.2.3.2, and A.8.2.5.5 of appendix 8 are taken from Standard Methods of Chemical Analysis, 6th edition, N. Howell Furman, Ph.D, editor, D. Van Nostrand Co., Inc. (1962). This has been the ``bible'' of chemical analytical methods since the 1930s.
Response: We concur that this is an excellent reference for chemical gravimetric means and chemical analytical methods. However, this reference is missing from the submitted rule. It should be explicitly cited in Appendix 8.
Comment 3: EPA requested clarification of sampling procedures for sulfurbearing materials introduced into the smelting process, so that sampling is not biased. ADEQ states that the materials sampled are a fine homogeneous mixture of concentrate from the flotation process, and therefore the current methods in sections A.8.1.2.1.1, A.8.1.2.1.2, and A.8.1.2.1.3 of appendix 8 are adequate to assure accurate accounting of the sulfurbearing materials.
Response: As noted by ADEQ, sampling bias can occur when there is a large variation in the size of materials being sampled. However, sampling from a homogeneous mixture of finely ground material can be considered reliable and unbiased. Additional sulfur bearing materials are also introduced to the smelting process along with the homogeneous dry floatation concentrate mentioned by ADEQ, but the concentrate contains over 90% of the sulfur content in the mixture. EPA concurs that the methods described in the sections cited in Comment 3 are adequate for the type of sulfurbearing material described. Therefore, we are not finalizing our concern regarding sampling procedures as a deficiency.
Comment 4: EPA commented that the accuracy of gravimetric methods
is normally about
Response: EPA believes that better accuracy than
Although some submitted comments led us to not finalize some
deficiencies listed in the proposed action, the remaining deficiencies
in Rule R182appendix 8 conflict with section 110 and part D of the
CAA and prevent full approval of this rule. Therefore, as authorized in
sections 110(k)(3) and 301(a) of the Act, EPA is finalizing a full
approval of ADEQ's submitted Rules R182715 (sections F, G, and H),
R182715.01, and R182715.02. We are also finalizing a limited approval of Rule R182appendix 8. This action
[[Page 63323]]
incorporates the submitted rules 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 R182appendix 8. 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 according
to 40 CFR 52.31. 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 rules have been adopted by the ADEQ,
and EPA's final limited disapproval does not prevent the local agency from enforcing them.
IV. 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 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 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 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 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 Executive Order 13132, because it
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. 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 final 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 rule.
G. 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
[[Page 63324]]
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.
H. Executive Order 13211, Actions That Significantly Affect Energy Supply, Distribution, or Use
This 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.
I. 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 action. Today's action does not require the public to perform activities conducive to the use of VCS.
J. Congressional Review Act
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). This rule will be effective December 1, 2004.
K. 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 January 3, 2005. 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, Sulfur oxides.
Dated: September 14, 2004.
Wayne Nastri,
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 DArizona
2. Section 52.120 is amended by adding paragraphs (c)(110)(i)(A)(2) and (c)(116) to read as follows:
Sec. 52.120 Identification of plan.
* * * * *
(c) * * *
(110) * * *
(i) * * *
(A) * * *
(2) Rules R182715.02 and R182715, Appendix 8 amended on November 15, 1993.
* * * * *
(116) New and amended regulations were submitted on September 12, 2003, by the Governor's designee.
(i) Incorporation by reference.
(A) Arizona Department of Environmental Quality.
(1) Rules R182715 (sections F, G, and H) and R182715.01 amended on August 9, 2002.
[FR Doc. 0424334 Filed 102904; 8:45 am]
BILLING CODE 656050P
FOR FURTHER INFORMATION CONTACT Al Petersen, EPA Region IX, (415) 947- 4118, petersen.alfred@epa.gov.
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