[Federal Register Volume 65, Number 243 (Monday, December 18, 2000)]
[Proposed Rules]
[Pages 79037-79040]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-32149]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AZ 078-0031; FRL-6918-5]


Disapproval of Implementation Plans, Arizona Department of 
Environmental Quality

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to disapprove a revision to the Arizona 
Department of Environmental Quality (ADEQ) portion of the Arizona State 
Implementation Plan (SIP) concerning visible emission sources. We are 
proposing action on a local rule that regulates these emission sources 
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 January 17, 2001.

ADDRESSES: Mail comments to Andrew Steckel, Rulemaking Office Chief 
(AIR-4), Air Division, U.S. Environmental Protection Agency, Region IX, 
75 Hawthorne Street, San Francisco, CA 94105.

[[Page 79038]]

    You can inspect copies of the submitted rule revisions and EPA's 
technical support documents (TSDs) at our Region IX office during 
normal business hours. You may also see copies of the submitted rule 
revisions at the following locations:

Environmental Protection Agency, Air Docket (6102), Ariel Rios 
Building, 1200 Pennsylvania Avenue, N.W., Washington, D.C. 20460.
Arizona Department of Environmental Quality, 3033 North Central Avenue, 
Phoenix, AZ 85012.

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, (415) 744-1135.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,'' 
and ``our'' refer to EPA.

Table of Contents

I. The State's Submittal
    A. What rule did the State submit?
    B. Are there other versions of this rule?
    C. What are the changes in the submitted rule?
II. EPA's Evaluation and Action
    A. How is EPA evaluating the rule?
    B. Does the rule meet the evaluation criteria?
    C. What are the rule deficiencies?
    D. EPA recommendations to further improve the rule
    E. Proposed action and public comment
III. Background information
    A. Why was this rule submitted?
IV. Administrative Requirements

I. The State's Submittal

A. What Rule Did the State Submit?

    Table 1 lists the rule proposed for disapproval with the date that 
it was adopted and submitted by the Arizona Department of Environmental 
Quality (ADEQ).

                                            Table 1.--Submitted Rule
----------------------------------------------------------------------------------------------------------------
              Local agency                   Rule #               Rule/Title              Adopted     Submitted
----------------------------------------------------------------------------------------------------------------
ADEQ....................................    R18-2-702  General Provisions.............     11/13/93     07/15/98
----------------------------------------------------------------------------------------------------------------

    On December 18, 1998, we determined that the rule submittal in 
Table 1 met the completeness criteria in 40 CFR Part 51 Appendix V, 
which must be met before formal EPA review.

B. Are There Other Versions of This Rule?

    We approved a version of Rule R18-2-702 into the ADEQ portion of 
the Arizona SIP, as Rule R9-3-501, Visible Emissions: General, on April 
23, 1982 (47 FR 17485).

C. What Are the Changes in the Submitted Rule?

     The rule was changed to apply only to existing sources.
     The opacity method was changed to EPA Method 9 to simplify 
EPA enforcement.
     An expired and therefore outdated exemption for certain 
copper smelters was removed.
     A procedure for calculating process weight rate was added 
to the rule.

II. EPA's Evaluation and Action

A. How Is EPA Evaluating the Rule?

    We evaluated this rule for enforceability and consistency with the 
CAA as amended in 1990, with 40 CFR 51, and with EPA's PM-10 policy. 
Sections 172(c)(1) and 189(a) of the CAA require moderate PM-10 
nonattainment areas to implement reasonably available control measures 
(RACM), including reasonably available control technology (RACT) for 
stationary sources of PM-10. Section 189(b) requires that serious PM-10 
nonattainment areas, in addition to meeting the RACM/RACT requirements, 
implement best available control measures (BACM), including best 
available control technology (BACT). The area regulated by the rule 
contains five counties that are PM-10 moderate nonattainment areas: 
Cochise County, Santa Cruz County, Gila County, Mohave County, and Yuma 
County. Therefore, the rule must meet the requirements of RACM/RACT. 
While the rule does not specifically establish PM-10 limits for a 
process, an opacity standard limits PM-10 emissions. We believe that a 
general 20% opacity standard is an important control level for PM-10 
achievable with reasonably available control technology.
    The guidance and policy documents that we used to define specific 
enforceability and SIP relaxation requirements includes the following:
     PM-10 Guideline Document, (EPA-452/R093-008).

B. Does the Rule Meet the Evaluation Criteria?

    Rule provisions which do not meet the evaluation criteria are 
summarized below and discussed further in the TSDs.

C. What Are the Rule Deficiencies?

    ADEQ Rule R18-2-702 contains the following deficiencies:
     The change of scope to apply only to existing sources 
without a replacement for new sources is a SIP relaxation. The opacity 
determination is an enforcement tool for both existing and new sources.
     The 40% opacity standard does not meet the requirements of 
RACM/RACT. A 20% opacity standard has been determined to be reasonably 
available across the country.
     The enforceability is limited by the discretion of the 
Director to relax the opacity standard if the source complies with the 
associated mass standard for the source. Relaxing the opacity standard 
below the RACM/RACT level does not meet the requirements of RACM/RACT.

D. EPA Recommendations To Further Improve the Rule

    The TSD describes additional rule revisions that do not affect our 
current action but are recommended for the next time the local agency 
modifies the rule.

E. Proposed Action and Public Comment

    As authorized in sections 110(k)(3) and 301(a) of the Act, we are 
proposing a disapproval of the submitted PCAQCD Rule R18-2-702. If 
finalized, this action would retain the existing SIP rule in the SIP, 
including the 40% opacity limit which does not fulfill RACM/RACT. If 
this disapproval is finalized, sanctions will be imposed under section 
179 of the Act unless EPA approves subsequent SIP revisions that 
correct the rule deficiencies within 18 months. These sanctions would 
be imposed as described in 59 FR 39832 (August 4, 1994). A final 
disapproval would also trigger the federal implementation plan (FIP) 
requirement under section 110(c).
    We will accept comments from the public for the next 30 days.

III. Background Information

A. Why Was This Rule Submitted?

    PM-10 harms human health and the environment. Section 110(a) of the 
CAA requires states to submit regulations that control PM-10 emissions. 
Table 2 lists

[[Page 79039]]

some of the national milestones leading to the submittal of local 
agency PM-10 rules.

                Table 2.--PM-10 Nonattainment Milestones
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             Date                                Event
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March 3, 1978................  EPA promulgated a list of total suspended
                                particulate (TSP) nonattainment areas
                                under the Clean Air Act, as amended in
                                1977. 43 FR 8964; 40 CFR 81.305.
July 1, 1987.................  EPA replaced the TSP standards with new
                                PM standards applying only up to 10
                                microns in diameter (PM-10). 52 FR
                                24672.
November 15, 1990............  Clean Air Act Amendments of 1990 were
                                enacted, Pub. L. 101-549, 104 Stat.
                                2399, codified at 42 U.S.C. 7401-7671q.
November 15, 1990............  PM-10 areas meeting the qualifications of
                                section 107(d)(4)(A) and (B) of the CAA
                                were designated nonattainment by
                                operation of law and classified as
                                moderate or serious pursuant to section
                                186(a) and 189(a). States are required
                                by section 110(a) to submit rules
                                regulating PM-10 emissions in order to
                                achieve the attainment dates specified
                                in section 186(a)(1) and 188(c).
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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, 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 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, or EPA consults with those 
governments. If EPA complies by consulting, E.O. 13084 requires EPA to 
provide to the 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 officials and other 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.''
    Today's proposed 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 proposed 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 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 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 
proposed 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 proposed rule will not have a significant impact on a 
substantial number of small entities because SIP actions 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 action does not create any 
new requirements, I certify that this action will not have a

[[Page 79040]]

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 
annual 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 proposed action does not include a 
Federal mandate that may result in estimated annual costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector. This proposed 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 proposed action 
because it 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, Incorporation by 
reference, Intergovernmental relations, Reporting and recordkeeping 
requirements, Particulate matter.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: November 30, 2000.
Laura Yoshii,
Acting Regional Administrator, Region IX.
[FR Doc. 00-32149 Filed 12-15-00; 8:45 am]
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