[Federal Register Volume 69, Number 94 (Friday, May 14, 2004)]
[Proposed Rules]
[Pages 26786-26790]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-10940]


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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 [email protected], 
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, 
[email protected].

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
----------------------------------------------------------------------------------------------------------------
           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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