[Federal Register: May 14, 2004 (Volume 69, Number 94)]
[Proposed Rules]
[Page 26786-26790]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14my04-14]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[AZ 120-0063; FRL-7661-2]
Revisions to the Arizona State Implementation Plan, Arizona
Department of Environmental Quality
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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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 (SO2) emissions from existing primary
copper smelters. We are proposing
[[Page 26787]]
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.
DATES: Any comments must arrive by June 14, 2004.
ADDRESSES: Mail comments to Andy Steckel, Rulemaking Office Chief (AIR-
4), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne
Street, San Francisco, CA 94105, or e-mail to steckel.andrew@epa.gov,
or submit comments at http://www.regulations.gov.
You can inspect copies of the submitted SIP revisions and EPA's
technical support document (TSD) at our Region IX office during normal
business hours. You may also see copies of the submitted SIP revisions
at the following locations: Arizona Department of Environmental
Quality, 1110 West Washington Street, Phoenix, AZ 85007.
A copy of the rules may also be available via the Internet at
http://www.sosaz.com/public_services/Title_18/18-02.htm. Please be
advised that this is not an EPA website and may not contain the same
version of the rule that was submitted to EPA.
FOR FURTHER INFORMATION CONTACT: Al Petersen, Rulemaking Office (AIR-
4), U.S. Environmental Protection Agency, 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 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
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Local agency Rule Rule title Amended Submitted
----------------------------------------------------------------------------------------------------------------
ADEQ............................. R18-2-715 (sections Standards of Performance 08/09/02 09/12/03
F, G, and H). for Existing Primary
Copper Smelters, Site-
specific Requirements.
ADEQ............................. R18-2-715.01....... Standards of Performance 08/09/02 09/12/03
for Existing Primary
Copper Smelters,
Compliance and
Monitoring.
ADEQ............................. R18-2-715.02....... Standards of Performance 11/15/93 07/15/98
for Existing Primary
Copper Smelters,
Fugitive Emissions.
ADEQ............................. R18-2-appendix 8... Procedures for Utilizing 11/15/93 07/15/98
the Sulfur Balance
Method for Determining
Sulfur Emissions.
----------------------------------------------------------------------------------------------------------------
On November 14, 2003, the submittal of Rules R18-2-715 (sections F,
G, and H) and R18-2-715.01 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 R18-2-715.02 and
R18-2-appendix 8 was found to meet the completeness criteria.
B. Are There Other Versions of These Rules?
We approved versions of Rules R18-2-715, R18-2-715.01, and R18-2-
715.02 into the SIP as Rule R9-3-515 at various times. Specifically, we
approved a version of Rule R18-2-715 (sections F, G, and H) into the
SIP as Rule 9-3-515 (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 R18-2-715.01 into the SIP as Rule R9-
3-515 (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 R18-2-715.02 into the SIP as Rule R9-
3-515 (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 R18-2-appendix 8 into the SIP as Rule
R9-3-appendix 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 SO2 affect breathing and may aggravate existing
respiratory and cardiovascular disease. Section 110(a) of the CAA
requires states to submit regulations that control SO2
emissions. The submitted rules regulate SO2 emissions from
existing primary copper smelters. The TSD has more information about
these rules.
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 SO2 National Ambient Air
Quality Standards (NAAQS). See 43 FR 8962 (March 3, 1978), 44 FR 21261
(April 10, 1979), and 44 FR 53081 (September 12, 1979). Local copper
smelters were the principal sources of SO2 emissions in
these areas. Under the CAA as amended in 1977, States were required to
revise their SIPs to include air quality plans that set forth a
strategy to bring nonattainment areas into attainment. As part of the
attainment strategy, ADEQ initially submitted R9-3-515, the predecessor
regulation to the submitted rules evaluated herein, to EPA on September
20, 1979. As noted above, EPA approved various provisions of R9-3-515
into the Arizona SIP at different times. See the proposed rule at 46 FR
58098 (November 30, 1981), and related final rules at 47 FR 42572
(September 28, 1982), 48 FR 1717 (January 14, 1983), and 49 FR 41026
(October 19, 1984).
[[Page 26788]]
Rule R9-3-515 provides SO2 stack emission limits for
seven individual copper smelters in the six nonattainment areas: Magma
Copper Company (San Manuel); ASARCO, Inc. (Hayden); Kennecott Copper
Company, Ray Mines Division (Hayden); Inspiration Consolidated Copper
Company (Miami); Phelps Dodge Corp., New Cornelia Branch (Ajo); Phelps
Dodge Corp., Douglas Reduction Works (Douglas); and Phelps Dodge Corp.,
Morenci Branch (Morenci). While EPA took action to fully approve R9-3-
515, EPA also concluded that the control strategy for SO2 in
these six areas was incomplete due to the failure to address the
fugitive emissions problems at the copper smelters. See 48 FR 1717
(January 14, 1983) and 40 CFR 52.125(a)(1).
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 R9-3-515 remained nonattainment for the
SO2 NAAQS following enactment of the 1990 CAA Amendments.
Under subpart 5 of part D of title I of the CAA, as amended in 1990,
States that contained areas designated nonattainment with respect to
the NAAQS for SO2 by operation of law but lacking a fully
approved implementation plan complying with the requirements of the CAA
as in effect immediately before enactment of the CAA Amendments of 1990
were required to prepare and submit a SIP revision meeting the
requirements of subpart 1 (of part D). See section 191(b) of the CAA.
Section 191(b) of the CAA applies to the six SO2
nonattainment areas in Arizona because, as noted above, the pre-1990
implementation plan for those areas failed to address the fugitive
emissions problems at the copper smelters.
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:
Requirements for Preparation, Adoption, and Submittal of
Implementation Plans, U.S. EPA, 40 CFR part 51.
Issues Relating to VOC Regulation, Cutpoints,
Deficiencies, and Deviations (the ``Blue Book''), U.S. EPA, OAQPS (May
25, 1988).
Guidance Document for Correcting Common Volatile Organic
Compounds & Other Rule Deficiencies, EPA Region IX (August 2, 2001),
available at http://www.epa.gov/region09/air/sips/littlebluebook2001.pdf
.
Alushin, Michael S., Associate Enforcement Counsel for Air
Enforcement, Alan W. Eckert, Associate General Counsel, Air and
Radiation Division, and John S. Seitz, Director, Stationary Source
Compliance Division, Office of Air Quality Planning and Standards,
memorandum, Review of State Implementation Plans and Revisions for
Enforceability and Legal Sufficiency, (September 23, 1987).
B. Do the Rules Meet the Evaluation Criteria?
The submitted rules constitute source-specific SO2 SIP
rules for three of the seven primary copper smelters covered by the
corresponding existing SIP rules: BHP Copper (formerly Magma Copper
Company) (San Manuel); ASARCO, Inc. (Hayden); and Inspiration
Consolidated Copper Company (Miami). The other four smelters have been
completely dismantled or are no longer operational. See the TSD for
additional information on these smelters. For those smelters that
remain in operation, the submitted rules improve the SIP by
establishing more stringent SO2 stack emissions limits, by
establishing SO2 emissions limits for fugitive emissions, by
adding compliance and monitoring provisions related to fugitive
SO2 emissions, and by revising the record retention period
from two to five years.
As noted above, the San Manuel, Hayden, and Miami areas are
designated as nonattainment for the SO2 NAAQS. As required
under the CAA as amended in 1990, ADEQ prepared SIP revisions involving
the development of air quality plans that provide for attainment of the
SO2 NAAQS in these areas. ADEQ drafted these plans to
provide for maintenance of the SO2 NAAQS as well as
attainment and has requested that the areas be redesignated from
nonattainment to attainment under section 107(d) of the CAA. These
plans rely primarily on the stack and fugitive SO2 emission
limits and related compliance and monitoring provisions in the
submitted rules to attain and maintain the SO2 NAAQS in the
three nonattainment areas. SO2 NAAQS violations have not
been recorded in these areas for at least the past five years. See
ADEQ's San Manuel Sulfur Dioxide Nonattainment Area State
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 SO2 NAAQS in the
applicable nonattainment areas, they would fully satisfy the
requirements for implementation of RACT under sections 172(c) and
191(b) and would be fully approvable by EPA under section 110(l) of the
CAA but for the deficiencies in Rule R18-2-appendix 8, which are
summarized below and discussed further in the TSD. In addition, the
submitted rules contain more stringent emissions limits than the
corresponding pre-1990 SIP requirements, they are approvable by EPA
under section 193 of the CAA.
C. What Are the Rule Deficiencies?
These provisions of Rule R18-2-appendix 8 conflict with section 110
and part D of the CAA and prevent full approval of the SIP revision.
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. The Guidance Document for
Correcting Common Volatile Organic Compounds (VOC) & Other Rule
Deficiencies, EPA Region IX (August 2, 2001), provides guidance on
correcting instances of Director's discretion. Also for greater
clarity, the term ``equivalent method'' should be replaced with
``alternative method'' in paragraph A.8.1.2, as these phrases have
distinct meanings. See 40 CFR 60.2. Excessive director's discretion in
essence allows for a variance from SIP requirements, and variances are
not allowed under section 110(i) of the CAA unless they are submitted
as individual SIP revisions by a State and then approved by EPA.
[[Page 26789]]
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. ADEQ
may wish to investigate possible ASTM methods or other industry
sampling methods.
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
iodine'' procedures.
Section A.8.2.5.5 should provide a specific test method
for ``chemical gravimetric means.'' Apparently it is intended to be the
``barium sulfate'' method from section A.8.1.2.3.1. Also the accuracy
is stated as +50%, but it should be a number. The accuracy
of a gravimetric procedure is normally about 1%, not 50%.
The reference in A8.3.1 should be changed from R18-2-
715(C)(4) to R18-2-715.01(K)-(O). Also, the reference in A.8.3.2 should
be changed from R18-2-715(C)(7)(v) to R18-2-715.01(Q).
D. Proposed Action and Public Comment
In order to strengthen the SIP, EPA is proposing a full approval of
ADEQ's submitted Rules R18-2-715 (sections F, G, and H), R18-2-715.01,
and R18-2-715.02 as fulfilling the requirements of RACT, SIP
relaxations, and enforceability.
Because of the above deficiencies, we cannot grant full approval of
Rule R18-2-appendix 8 under section 110(k)(3) and part D. However, EPA
may grant a limited approval of Rule R18-2-appendix 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 R18-2-appendix 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 R18-2appendix 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 18-month 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 not-for-profit 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 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).
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 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 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 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
[[Page 26790]]
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. 04-10940 Filed 5-13-04; 8:45 am]
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