[Federal Register Volume 69, Number 82 (Wednesday, April 28, 2004)]
[Rules and Regulations]
[Pages 23103-23109]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-9558]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AZ 063-0048; FRL-7638-2]


Revisions to the Arizona State Implementation Plan, Pinal County 
Air Quality Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing full approval and limited approval/ limited 
disapproval of revisions to the Pinal County Air Quality Control 
District (PCAQCD or District) portion of the Arizona State 
Implementation Plan (SIP) concerning visible emissions standards, 
limits on open burning, and carbon monoxide (CO) emissions from 
industrial processes. For the visible emissions standards and the open 
burning limits, EPA is finalizing a full approval of portions of those 
provisions and finalizing a simultaneous limited approval and limited 
disapproval for other portions. For CO emissions from industrial 
processes, EPA is finalizing a limited approval and limited 
disapproval. 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 to correct rule 
deficiencies.

EFFECTIVE DATE: This rule is effective on May 28, 2004.

ADDRESSES: You can inspect a copy 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 by appointment at the 
following locations:

Environmental Protection Agency, Region IX, 75 Hawthorne Street, San 
Francisco, CA 94105.
Air and Radiation Docket and Information Center (6102T), U.S. 
Environmental Protection Agency, Room B-102, 1301 Constitution Avenue, 
NW., Washington, DC 20460.
Arizona Department of Environmental Quality, 1110 West Washington 
Street, Phoenix, AZ 85007.
Pinal County Air Quality Control District, Building F, 31 North Pinal 
Street (P. O. Box 987), Florence, AZ 85232.

FOR FURTHER INFORMATION CONTACT: Al Petersen, Rulemaking Office (AIR-
4), U.S. Environmental Protection Agency, Region IX; (415) 947-4118, 
[email protected].

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

I. Proposed Action

    On June 18, 2001 (66 FR 32783), EPA proposed a limited approval and 
limited disapproval of the rules in Table 1 that were submitted for 
incorporation into the Arizona SIP.

                                            Table 1.--Submitted Rules
----------------------------------------------------------------------------------------------------------------
                                                                              Adopted or amended
           Local agency               Rule No.            Rule title             or codified         Submitted
----------------------------------------------------------------------------------------------------------------
PCAQCD...........................         2-8-300  Performance Standards     06/29/93 adopted...        11/27/95
                                                    [Visible Emissions].
PCAQCD...........................         3-8-700  General Provisions [Open  02/22/95 amended...        11/27/95
                                                    Burning].
PCAQCD...........................       5-24-1040  Carbon Monoxide           02/22/95 codified..        11/27/95
                                                    Emissions--Industrial
                                                    Processes.
----------------------------------------------------------------------------------------------------------------


[[Page 23104]]

    We proposed a limited approval because we determined that these 
rules improve the SIP and are largely consistent with the relevant CAA 
requirements. We simultaneously proposed a limited disapproval because 
some rule provisions conflict with one or more requirements of section 
110 and/or part D of title I of the CAA.
    On June 18, 2001 (66 FR 32783), we also proposed a full approval of 
the rules in Table 2 that were submitted for incorporation into the 
Arizona SIP.

                                            Table 2.--Submitted Rules
----------------------------------------------------------------------------------------------------------------
           Local agency               Rule No.            Rule title          Adopted or amended     Submitted
----------------------------------------------------------------------------------------------------------------
PCAQCD...........................         2-8-280  General [Visible          06/29/93 adopted...        11/27/95
                                                    Emissions].
PCAQCD...........................         2-8-290  Definitions [Visible      06/29/93 adopted...        11/27/95
                                                    Emissions].
PCAQCD...........................         2-8-310  Exemptions [Visible       06/29/93 adopted...        11/27/95
                                                    Emissions].
PCAQCD...........................         2-8-320  Monitoring and Records    06/29/93 adopted...        11/27/95
                                                    [Visible Emissions].
PCAQCD...........................         3-8-710  Permit Provisions and     02/22/95 amended...        11/27/95
                                                    Administration [Open
                                                    Burning].
----------------------------------------------------------------------------------------------------------------

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 received comments from the following parties:
    Chuck Shipley, Arizona Mining Association (AMA); letter dated July 
18, 2001, and received July 19, 2001.
    Scott Davis, Pinnacle West Capital Corporation (PWCC); letter dated 
July 17, 2001, and received July 19, 2001.
    Don Gabrielson, PCAQCD; letter dated July 18, 2001, and received 
July 18, 2001.
    The comments and our responses are summarized below.
    Comment I: AMA challenges EPA's analysis of whether the District's 
visible emissions standard satisfies the requirements for reasonably 
available control measures including reasonably available control 
technology (RACM/RACT). AMA asserts that EPA is not determining a RACM/
RACT 20% opacity standard consistent with EPA's PM-10 Guideline 
Document, EPA-452/R093-008. Specifically, AMA argues that RACM/RACT 
must not be a blanket, nationwide determination, and EPA or PCAQCD must 
evaluate available control measures for reasonableness, considering the 
technological feasibility and the cost of control in the applicable 
area. AMA also asserts that the establishment of a national standard by 
guideline without full and fair national public notice and comment is 
unlawful.
    Response: EPA is not promulgating a national RACM/RACT opacity 
standard by today's action. However, we believe that the widespread 
application of the 20% opacity standard, or its equivalent No. 1 
Ringlemann, across the country is generally achievable and control 
equipment is reasonably available unless a State or local authority 
demonstrates otherwise given particular local circumstances. Table 3 
lists some of the States and local agencies with a 20% opacity 
standard, or its equivalent of No. 1 Ringlemann, in their SIP rules.

                             Table 3.--State or District Opacity Emission Standards
----------------------------------------------------------------------------------------------------------------
                                                               Per cent     Ringlemann No.
              State                     Local agency            opacity         opacity         SIP rule No.
----------------------------------------------------------------------------------------------------------------
Michigan........................  ........................              20  ..............  R336.1301
New Mexico......................  ........................              20  ..............  20-2-61
Texas...........................  ........................              20  ..............  111.111
Washington......................  ........................              20  ..............  173-400-040
California......................  Bay Area AQMD...........              20               1  Reg 6
California......................  Imperial County APCD....  ..............               1  401
California......................  Mojave Desert AQMD......  ..............               1  401
California......................  Sacramento Metropolitan   ..............               1  401
                                   AQMD.
California......................  San Diego APCD..........  ..............               1  50
California......................  San Joaquin Valley        ..............               1  4101
                                   Unified APCD.
California......................  South Coast AQMD........  ..............               1  401
----------------------------------------------------------------------------------------------------------------

    Based on the significant information before the Agency showing that 
a more stringent opacity standard is generally considered RACM/RACT and 
lacking a demonstration from the District to rebut this significant 
information, it is reasonable for EPA to conclude the 40% opacity limit 
of Rule 2-8-300 fails to fulfill RACM/RACT. See National Steel Corp. v. 
Gorsuch, 700 F.2d 314, 323 (6th Cir. 1983) (``Where a state fails to 
supply the information necessary for a proper [RACT] evaluation by the 
EPA, the EPA must be free to use its own acquired knowledge.''). After 
this final disapproval action, PCAQCD will have the opportunity to 
perform any appropriate RACM/RACT demonstration in a revised submittal 
of Rule 2-8-300. In performing this demonstration, the District should 
consider the widespread adoption of the 20% opacity standard, as well 
as any unique local factors that the District identifies.
    While AMA's comments focus on the level of control to meet RACM/
RACT, it is important to note that Rule 2-8-300 must in fact meet the 
more stringent requirements of best available control measures 
including best available control technology (BACM/BACT), because PCAQCD 
regulates a serious PM-10 nonattainment area. CAA section 189(b)(1)(B). 
BACM/BACT should not be less stringent than the 20% opacity standard 
shown to be in widespread use. 59 FR 41998, 42011 (Aug. 16, 1994) 
(``General Preamble Addendum'') (``BACM is intended to be a more 
stringent standard than RACM.''). While specific processes are

[[Page 23105]]

undoubtedly capable of meeting a more stringent opacity standard than 
20% by implementing BACM/BACT, the visible emissions rule is generic 
and applies to sources from many types of processes located in 
different areas. Some of the sources covered by this generic rule might 
have difficulty meeting a more stringent standard than 20% opacity. As 
a result, the District may be able to demonstrate that a generic 20% 
opacity standard is appropriate for the purposes of Rule 2-8-300 to 
meet the CAA requirements for both RACM/RACT and BACM/BACT.
    Comment II: AMA argues that, notwithstanding the broad application 
of 20% opacity standards as RACM/RACT, each area must be able to 
determine RACM/RACT based on the area's unique aspects. AMA concludes, 
that since EPA previously approved the 40% opacity standard for PCAQCD, 
the District had no reason to re-justify the standard. AMA implies that 
EPA should continue to rely on the justification for the original 
approval.
    Response: EPA agrees that RACM/RACT is to be determined by each 
area taking into consideration unique local factors. That analysis, 
however, has not been conducted by the District here. At the time of 
the original approval of the 40% opacity visible emissions limit, the 
District did not include areas classified as nonattainment. As a 
result, the requirements for RACM/RACT and BACM/BACT did not apply. Any 
previous rationale for approval of the 40% opacity standard would no 
longer serve as an adequate basis for approval of the standard. Through 
this limited disapproval, we are directing the District to reconsider 
the level of the visible emission limit and demonstrate that it 
satisfies RACM/RACT and BACM/BACT.
    Comment III: AMA states that PCAQCD is not authorized to impose a 
20% opacity standard. PCAQCD is prohibited by Arizona law from adopting 
a rule that is more stringent than an Arizona Department of 
Environmental Quality (ADEQ) rule unless PCAQCD makes a specific 
finding that a more stringent rule is necessary to meet a local 
condition or Federal law. PCAQCD has not made such a finding.
    Response: This final notice directs Arizona to correct deficiencies 
in local rules in order to comply with the Federal CAA. This could 
necessitate changes to State law. There is no need to respond to the 
specific details of this comment because State law cannot interfere 
with compliance with Federal law. As AMA notes, PCAQCD may need to make 
a finding that a more stringent standard is necessary to meet Federal 
law.
    We also note that EPA has recently disapproved a similar generic 
opacity standard adopted by ADEQ (R18-2-702). See 67 FR 59456 
(September 23, 2002). EPA directed ADEQ to revise the opacity standard 
to satisfy RACM/RACT. On October 26, 2003, ADEQ finalized changes to 
Rule R18-2-702 that established a statewide general opacity standard of 
20%. Accordingly, even under commenter's interpretation of State law, 
the revised ADEQ rule may no longer preclude a more stringent PCAQCD 
visible emissions rule under State law.
    Comment IV: AMA asserts that EPA fails to consider the following 
PCAQCD nonattainment provisions:
     Any source, except de minimis sources, must 
obtain a permit to operate. See Rule 3-1-040.
     A new or modified major source must implement 
the lowest achievable emission rate (LAER), which is more stringent 
than BACM/BACT. See Rule 3-3-220.
     Any source located in the PM-10 nonattainment 
area is required to meet the more stringent standards found in chapter 
5 of the PCAQCD Regulations.
     Rule 2-8-300 is found in chapter 2 of the PCAQCD 
Regulations, and is not applicable to sources in nonattainment areas.

    AMA implies that these provisions obviate the need for more 
stringent visible emission standards to meet nonattainment 
requirements.
    Response: EPA has reviewed the District's rules and continues to 
conclude that, even taken as a whole, these rules do not ensure that 
significant sources of PM-10 in the nonattainment portions of the 
District will be subject to the required level of control (i.e., RACM/
RACT or BACM/BACT).
     The permitting requirements of Rule 3-1-040 do 
not include specific controls that ensure RACM/RACT or BACM/BACT is 
fulfilled. Instead, the permitting requirements specify that the permit 
contain enforceable emission limitations and standards that assure 
compliance with applicable requirements. See PCAQCD Rule 3-1-081. 
Unless the underlying applicable requirements, such as Rule 2-8-300, 
meet RACM/RACT or BACM/BACT, the permitting provisions are not adequate 
to ensure RACM/RACT or BACM/BACT will be imposed on sources as 
required.
     The LAER requirements of Rule 3-3-220, as AMA 
acknowledges, only apply to new or modified major sources. RACM/RACT is 
required for existing as well as new or modified sources and is not 
limited to major stationary sources. See 57 FR 13498, 13541 (April 16, 
1992) (``General Preamble''). In addition, BACM/BACT is required for 
all significant sources of emissions in nonattainment areas including 
existing sources and new sources that might not be considered ``major'' 
under the District's rules. See 59 FR 42012.
     The source-specific performance standards in 
Chapter 5 may also fail to ensure RACM/RACT or BACM/BACT will be 
required for emission sources in the nonattainment portions of the 
District. Several of these standards contain no specific PM-10 
standards and several rules include the same 40% opacity standards that 
we are finding do not meet the requirements of either RACM/RACT or 
BACM/BACT.
     Finally, there is no provision in PCAQCD rules 
that limits the applicability of Rule 2-8-300 or other rules in Chapter 
2 to attainment areas. In its current form, Rule 2-8-300 applies to 
both attainment areas and nonattainment areas of PCAQCD. Thus EPA must 
review Rule 2-8-300 with respect to CAA requirements for nonattainment 
areas.
    Comment V: AMA notes that EPA previously proposed to disapprove a 
similar opacity standard promulgated by ADEQ in 65 FR 79037 (December 
18, 2000). AMA requests that EPA consider the Arizona SIP as a whole 
before making its proposals. In particular, AMA requests that EPA 
examine Arizona's nonattainment plans before using concerns about 
nonattainment areas as a pretext for proposals to disapprove a 
regulation governing attainment areas.
    Response: Since AMA submitted its comments, EPA has finalized its 
disapproval of ADEQ's opacity standards. See 67 FR 59456 (September 23, 
2002). That action, while consistent with the action being taken here, 
does not have any direct impact on the evaluation of the District's 
visible emission rule. PCAQCD is generally outside of the area 
regulated by ADEQ rules and attainment plans. Therefore, decisions on 
ADEQ attainment plans do not relieve the District from the need to 
ensure that Rule 2-8-300 meets the CAA requirements for SIP approval.
    Rule 2-8-300 regulates all of PCAQCD, which includes both 
attainment areas and nonattainment areas. As a result, Rule 2-8-300 
must meet RACM/RACT or BACM/BACT requirements for nonattainment areas. 
EPA does not have a mechanism to approve the rule only as it applies in 
the attainment area and disapprove it as it applies in the 
nonattainment area.

[[Page 23106]]

    Comment VI: AMA asserts that EPA lacks a legal basis for the 
proposed limited disapproval of PCAQCD Rules 2-8-300, 3-8-700, and 5-
24-1040 and relies exclusively on guidance documents. AMA requests that 
EPA cite to and rely upon statutes and rules subjected to notice and 
public comment in identifying alleged deficiencies in proposed SIP 
revisions.
    Response: EPA has issued a limited disapproval of PCAQCD Rules 2-8-
300, 3-8-700, and 5-24-1040 because the rules do not meet all 
applicable requirements of the CAA. SIP rules must be enforceable (see 
section 110(a) of the CAA), must require RACM/RACT or BACM/BACT for 
sources in nonattainment areas (see section 189), must not interfere 
with applicable requirements including requirements concerning 
attainment (see section 110(1)), and must not relax existing 
requirements in effect prior to enactment of the 1990 CAA amendments 
(see section 193). These provisions of the CAA provide the statutory 
basis for EPA's conclusion that PCAQCD Rules 2-8-300, 3-8-700, and 5-
24-1040 are legally deficient.
    EPA acknowledges that guidance and policy documents are not a legal 
basis for EPA's actions. However, guidance and policy documents are 
generally careful analyses and interpretations of the CAA. Such 
guidance and policy documents are valuable in assuring fairness and 
consistency in evaluating submitted SIP rules. The proposed actions 
that result from an evaluation with the assistance of guidance and 
policy documents are always noticed in the Federal Register for public 
review and comment.
    Comment VII: AMA asserts that EPA makes unsubstantiated claims in 
justifying disapproval of the PCAQCD rules. For example, PCAQCD 
proposes to include orchard heaters in the list of exemptions from open 
burning requirements in Rule 3-8-700. EPA states that this may be a SIP 
relaxation and the exemption should be removed ``because there are no 
orchard heaters in PCAQCD.'' AMA asserts that EPA offers no basis for 
this statement. AMA cites no other specific instances where EPA made 
and allegedly unsubstantiated claim justifying its SIP disapproval.
    Response: With respect to the one specific example noted by AMA, 
AMA misunderstands the recommendation made by EPA. First, EPA concluded 
as a legal matter that the addition by PCAQCD of a new exemption from 
Rule 3-8-700 for orchard heaters amounts to a SIP relaxation, which, 
unless justified by PCAQCD, is not consistent with section 110(1) of 
the CAA. PCAQCD stated (telephone conversation with Don Gabrielson on 
July 21, 2000) that there are no orchard heaters in PCAQCD. Therefore, 
we recommended that, rather than attempting to demonstrate that the new 
exemption does not violate CAA section 110(1), the District should 
simply remove this exemption from the rule. Whether the District's 
statement regarding the absence of orchard heaters is true or not does 
not alter the basic legal conclusion that the exemption cannot stand 
without a demonstration of compliance with CAA section 110(1).
    Should the District choose to retain the orchard heater exemption, 
PCAQCD could comply with section 110(1) by showing that its decision 
would not interfere with any applicable requirements of the CAA, 
including attainment and reasonably further progress requirements. In 
making such a demonstration, claims regarding the presence or absence 
of orchard heaters would require factual support.
    Comment VIII: PWCC believes that LAER instead of BACT should be 
required in serious nonattainment areas.
    Response: PWCC's comments confuse the requirements for new source 
review (NSR) (e.g., CAA section 173) with the more general requirements 
governing existing sources in nonattainment areas (e.g., CAA section 
189(b)(1)(B)). PWCC is correct that the CAA provisions governing NSR 
require BACT in attainment areas and LAER in nonattainment areas. 
Section 189, however, specifies the level of control required for 
existing sources in PM-10 nonattainment areas. SIP provisions covering 
moderate PM-10 nonattainment areas must assure implementation of RACM/
RACT to those existing sources in the nonattainment area that are 
reasonable to control. See CAA section 172(c)(1) and 189(a)(1)(C); see 
also 57 FR 13541. EPA interprets section 189(b)(1)(B) as requiring BACM 
(including BACT) for all (except de minimis) stationary PM-10 sources 
in serious PM-10 nonattainment areas. See 59 FR 42012. For a discussion 
on the relationship between BACM as required under 189 and BACT as 
required by the CAA provisions for prevention of significant 
deterioration, see the General Preamble Addendum, 59 FR at 42008-42011.
    Comment IX: PWCC concurs with EPA's determination that sources 
located in the serious PM-10 nonattainment area within PCAQCD should 
probably be subject to a 20% opacity standard. However, PWCC argues 
that the 20% opacity standard is inappropriate for the sources located 
within the moderate PM-10 area. PWCC refers to comments it submitted by 
letter of February 15, 2001, regarding the 20% opacity standard 
proposed in 65 FR 79037 (December 18, 2000) for ADEQ Rule R18-2-702. In 
those comments, PWCC argued that, at a minimum, EPA should approve the 
rule for all areas in the State, except the small PM-10 nonattainment 
areas. Likewise, AMC and PCAQCD question the validity of EPA's 
determination that the 20% opacity standard applies to sources located 
outside of the serious PM-10 nonattainment area.
    Response: As we explained in our Response to Comment I, EPA 
believes that PCAQCD's 40% opacity standard does not fulfill the 
requirements for RACM/RACT and that a 20% opacity standard is 
achievable with reasonably available control equipment. Accordingly, it 
is reasonable to expect the District to adopt a 20% opacity standard to 
fulfill RACM/RACT in moderate PM-10 nonattainment areas.
    Furthermore, Rule 2-8-300 applies in all of PCAQCD. EPA does not 
have a mechanism to approve the rule as it applies in the moderate 
nonattainment areas and disapprove it in the serious nonattainment 
areas. Accordingly, EPA must ensure that Rule 2-8-300 fulfills RACM/
RACT and BACM/BACT requirements in the District's moderate PM-10 
nonattainment area and serious PM-10 nonattainment area, respectively.
    Comment X: PWCC contends that the 20% opacity standard should not 
be imposed throughout PCAQCD because the majority of sources are in 
attainment areas or in unclassified areas. PWCC recommends that EPA 
approve Rule 2-8-300 for all areas in the District that are in 
attainment or unclassified and direct PCAQCD to determine RACM/RACT (or 
BACM/BACT) for those areas that are in nonattainment and develop a new 
rule or rules, if necessary.
    Response: EPA agrees that only portions of PCAQCD are nonattainment 
areas for PM-10. However, because Rule 2-8-300 applies to sources in 
the nonattainment portions of the District, the rule must meet the 
relevant requirements of CAA sections 110 and 188-190 for nonattainment 
areas. For the reasons discussed above, Rule 2-8-300 does not comply 
with the requirements of section 189 and therefore cannot be fully 
approved.
    EPA declines to follow PWCC's recommendation that the rule be 
approved as it applies in the attainment portions of the District. The 
rule was not presented to EPA in a form that would allow EPA to approve 
a separable piece of the rule that applies only in attainment areas. 
Thus, EPA has no mechanism to approve the rule in the

[[Page 23107]]

attainment portion of the District while disapproving it in the 
nonattainment portions. This final notice directs Arizona to correct 
the rule deficiencies. Arizona has the opportunity to direct PCAQCD to 
take appropriate action to ensure sources in the nonattainment portions 
of the District are subject to RACM/RACT or BACM/BACT as required.
    Comment XI: PCAQCD asserts that BACM/BACT should be determined on a 
case-by-case basis since the nature and extent of a nonattainment 
problem may vary within the area and from one area to another. The 
District claims that such an analysis must be conducted in the context 
of the Apache Junction Portion of the Metropolitan Phoenix PM-10 
Serious State Implementation Plan (August 1999) (Apache Junction Plan). 
The Apache Junction Plan identifies construction activity and 
stationary sources as the only relevant categories of PM-10.
    The District points out that significant stationary sources within 
the Apache Junction Plan area must obtain operating permits pursuant to 
PCAQCD Rule 3-1-040 and that and that under Ariz. Rev. Stat. section 
49-480.F.5, the District may include any other conditions that are 
necessary to ensure compliance with the Clean Air Act in operating 
permits issued to these sources. The District argues that the operating 
permit requirement in conjunction with the general requirements of 
Ariz. Rev. Stat. section 49-480.F.5 obviates the need for a more 
stringent opacity standard within the Apache Junction Plan area.
    Response: EPA agrees that BACM/BACT is to be determined on a case-
by-case basis. See 59 FR 42014. However, Rule 2-8-300, as the District 
concedes, does not include any analysis demonstrating that the generic 
visible emissions rule satisfies BACM/BACT and/or RACM/RACT 
requirements. EPA understands that no such analysis was conducted 
because at the time the District submitted the rule, the District did 
not include nonattainment areas. Now that portions of the District have 
been redesignated to nonattainment, however, the District must prepare 
the necessary analysis to support SIP approval of the rule as it 
applies to the nonattainment portions of the District. Without contrary 
specific data on technological feasibility and the cost of control in 
the applicable geographical area, we cannot conclude based on the 
information before us that an opacity standard less stringent than 20% 
fulfills RACM/RACT and BACM/BACT.
    The District's reliance on the general language of Ariz. Rev. Stat. 
Sec.  49-480.F.5 is also misplaced. In our General Preamble we explain 
that procedures for determining compliance with a rule must be 
``sufficiently specific and nonsubjective so that two independent 
entities applying the procedures would obtain the same result.'' See 57 
FR 13568 (April 16, 1992). A SIP must also include ``clear, 
unambiguous, and measurable requirements'' for ensuring that sources 
are in compliance with control measures. Id. The State of Arizona's 
general commitment to require permit emission limits as necessary to 
assure compliance with applicable requirements, including requirements 
of the CAA, is not meaningful if the standards adopted into the SIP do 
not themselves satisfy RACM/RACT or BACM/BACT as appropriate. 
Accordingly, EPA cannot conclude that PCAQCD's general commitment to 
assure compliance with the CAA represents the application of RACM/RACT 
or BACM/BACT.
    Comment XII: The District argues that a 20% opacity standard cannot 
be implemented for the construction industry because the monitoring 
requirements contained in PCAQCD Rule 2-8-320 should not be applied to 
construction sources. The District contends that attempts to measure 
construction dust opacity using EPA Reference Method 9, as Rule 2-8-320 
requires, are futile because Method 9 cannot be practicably applied to 
mobile sources. Rather, the District suggests that ``implementation of 
far more detailed control requirements'' for construction sources, such 
as those imposed by Maricopa County, would be consistent with EPA 
guidance calling for a case-by-case analysis of what measures should be 
characterized as BACM.
    Response: EPA agrees that a more detailed control strategy for 
construction site dust may satisfy RACM/RACT or BACM/BACT requirements 
for PM-10 nonattainment areas located within PCAQCD. However, until 
PCAQCD submits such a detailed control strategy, EPA cannot approve the 
District's SIP on that basis. We note that contrary to the District's 
own claim regarding implementability, PCAQCD Rule 4-3-090, which has 
not been approved in the SIP, requires construction activities 
generally to meet a 20% opacity limit using the same Method 9. This 
rule combined with other provisions setting standards for all specific 
significant sources of PM-10 in the nonattainment areas, could replace 
the need for a generic visible emission standard for construction 
sources in the nonattainment areas.
    Upon resubmittal of the visible emissions rule, the District may 
demonstrate that all sources significantly contributing to 
nonattainment are subject to RACM/RACT or BACM/BACT as appropriate.
    Comment XIII: PCAQCD relates that the 40% opacity standard was 
originally adopted as a ``general SIP'' rule or ``attainment area'' 
rule. Subsequent action by EPA designated the Phoenix Planning Area, 
which includes the Apache Junction area of PCAQCD, as a serious PM-10 
nonattainment area. See 61 FR 21372 (May 10, 1996). PCAQCD acknowledges 
that a further ``curative'' SIP submittal must be made for 
nonattainment areas. Such a ``curative'' SIP submittal exists as the 
Apache Junction Plan. PCAQCD objects to EPA's treatment of Rule 2-8-300 
as a nonattainment plan provision. PCAQCD submits that it is wholly 
improper for the EPA to refrain from taking action on the pending 
``curative'' Apache Junction Plan, while at the same time citing 
purported inadequacies in that ``curative'' SIP submittal as a basis 
for disapproving a separate and distinct ``general SIP'' submittal. 
PCAQCD also argues that EPA is effectively acting on the Apache 
Junction Plan without public notice and comment.
    Response: As discussed above, nothing in PCAQCD's rules suggests 
that Rule 2-8-300 applies only to a specific area within PCAQCD. 
Because the rule applies to all of PCAQCD, the rule must satisfy the 
most stringent requirements, that apply to nonattainment areas within 
the District, including BACM/BACT for the Apache Junction serious PM-10 
nonattainment area of PCAQCD. CAA section 189(b)(1)(B). EPA has no 
mechanism for approving the rule to apply only to attainment areas 
within PCAQCD. Our proposed action on rules independent of the Apache 
Junction Plan is appropriate because we believe that several of these 
rules plainly fail to meet CAA requirements, and that we can make this 
determination without evaluating the Apache Junction Plan.

III. EPA Action

    No comments were submitted to change our assessment of the other 
rules as described in our proposed action. Therefore, as authorized in 
section 110(k)(3) and 301(a) of the CAA, EPA is finalizing a limited 
approval of submitted PCAQCD Rule 2-8-300. 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 for PCAQCD

[[Page 23108]]

Rule 2-8-300 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 CAA as 
described in 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 rule has been adopted by the local 
agency, and EPA's final limited disapproval does not prevent the local 
agency from enforcing it.
    EPA is also finalizing a limited approval of submitted PCAQCD Rules 
3-8-700 and 5-24-1040. As authorized under section 110(k)(3), EPA is 
simultaneously finalizing a limited disapproval of the rules. This 
action incorporates the submitted rules into the Arizona SIP, including 
those provisions identified as deficient. No sanctions will be imposed 
for Rule 3-8-700, because the source category has insignificant (de 
minimis) PM-10 emissions to make an effect on attainment. No sanctions 
will be imposed for Rule 5-24-1040, because the area is attainment for 
CO.
    EPA is also finalizing full approval of submitted PCAQCD Rules 2-8-
280, 2-8-290, 2-8-310, 2-8-320, and 3-8-710 for incorporation into the 
Arizona SIP.

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 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 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.

[[Page 23109]]

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 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. section 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. 
section 804(2). This rule will be effective May 28, 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 June 28, 2004. 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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Particulate 
matter, Reporting and recordkeeping requirements.

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

    Dated: March 8, 2004.
Wayne Nastri,
Regional Administrator, Region IX.

0
Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for Part 52 continues to read as follows:

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

Subpart D--Arizona

0
2. Section 52.120 is amended by adding paragraphs (c)(84)(i)(I), 
(84)(i)(J), and (84)(i)(K) to read as follows:


Sec.  52.120  Identification of plan.

* * * * *
    (c) * * *
    (84) * * *
    (i) * * *
    (I) Rules 2-8-280, 2-8-290, 2-8-300, 2-8-310, and 2-8-320, adopted 
on June 29, 1993.
    (J) Rules 3-8-700 and 3-8-710, amended on February 22, 1995.
    (K) Rule 5-24-1040, codified on February 22, 1995.
* * * * *

[FR Doc. 04-9558 Filed 4-27-04; 8:45 am]
BILLING CODE 6560-50-P