[Federal Register Volume 69, Number 210 (Monday, November 1, 2004)]
[Rules and Regulations]
[Pages 63321-63324]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-24334]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AZ 120-0063; FRL-7820-2]


Revisions to the Arizona State Implementation Plan, Arizona 
Department of Environmental Quality

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing a full approval of some revisions to the 
Arizona Department of Environmental Quality (ADEQ) portion of the 
Arizona State Implementation Plan (SIP) and a limited approval/limited 
disapproval of another revision to the SIP. This action was proposed in 
the Federal Register on May 14, 2004 and concerns sulfur dioxide 
(SO2) emissions from existing primary copper smelters. Under 
authority of the Clean Air Act as amended in 1990 (CAA or the Act), 
this action simultaneously approves rules that regulate these emission 
sources and directs Arizona to correct rule deficiencies.

DATES: This rule is effective on December 1, 2004.

ADDRESSES: You can inspect copies of the administrative record for this 
action at EPA's Region IX office during normal business hours by 
appointment. You can inspect copies of the submitted SIP revisions by 
appointment at the following locations: Environmental Protection 
Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901.
    Air and Radiation Docket and Information Center, U.S. Environmental 
Protection Agency, Room B-102, 1301 Constitution Avenue, NW., (Mail 
Code 6102T), Washington, DC 20460.
    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 Web site and may not contain the same 
version of the rule that was submitted to EPA.

FOR FURTHER INFORMATION CONTACT: Al Petersen, EPA Region IX, (415) 947-
4118, [email protected].

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

I. Proposed Action

    The following table lists the rules addressed by this action, with 
the dates that they were adopted and submitted by the ADEQ.

----------------------------------------------------------------------------------------------------------------
            Local agency                 Rule              Rule title            Adopted     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 May 14, 2004 (69 FR 26786), EPA proposed 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. On the same date, we proposed a 
limited approval and limited disapproval of Rule R18-2-appendix 8.

[[Page 63322]]

We proposed a limited approval because we determined that this rule 
improves the SIP and is largely consistent with the relevant CAA 
requirements. We simultaneously proposed a limited disapproval because 
some rule provisions of Rule R18-2-appendix 8 conflict with section 110 
and part D of the Act. These provisions include the following:
    1. Sections A.8.1.2 and A.8.2 contain excessive Director's 
discretion by allowing the Director to approve an equivalent method to 
calculate the sulfur content without providing the criteria that will 
be used to determine approvability.
    2. Sections A.8.1.2.1.1, A.8.1.2.1.2, and A.8.1.2.1.3 should 
clarify how a representative sample should be taken from belt feeders, 
railcars, and trucks so that the sampling process is not biased.
    3. Sections A.8.1.2.3.1 and A.8.1.2.3.2 should provide specific 
test methods for the ``barium sulfate'' and ``potassium iodide'' 
procedures.
    4. Section A.8.2.5.5 should provide a specific test method for 
``chemical gravimetric means.'' Also the accuracy is stated as +50%, 
but it should be a  number. The accuracy of a gravimetric 
procedure is normally about 1%, not 50%.
    5. 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).
    Based on information received during the comment period of our 
proposed action, we no longer consider deficiency 2 or the 
second part of deficiency 4 above to be deficiencies in Rule 
R18-2-appendix 8. See Comments and Responses 3 and 4. 
Our proposed action contains more information on the basis for this 
rulemaking and on our evaluation of the submittals.

II. Public Comments and EPA Responses

    EPA's proposed action provided a 30-day public comment period 
ending on June 14, 2004. We received comments from the following 
parties:
    Kenneth Evans, Arizona Mining Association (AMA); letter dated June 
14, 2004 and received on June 14, 2004.
    Nancy Wrona, ADEQ; letter dated June 11, 2004 and received on June 
11, 2004.
    The comments and our responses are summarized below.
    Comment 1: EPA cited as a deficiency excessive ADEQ Director's 
discretion to approve alternate analytical procedures in Appendix 8. 
AMA and ADEQ state that Title V permits, which could include alternate 
analytical procedures approved by the ADEQ Director's discretion, are 
then subject to EPA approval by the review and objection authority 
granted to EPA under Title V. Therefore, requiring another EPA approval 
of an alternate analytical procedure approved by the ADEQ Director's 
discretion is duplicative and unwarranted.
    Response: Appendix 8 in its present form allows the ADEQ Director 
to approve an ``equivalent method'' without regard to the status of a 
Title V permit or EPA's approval of that permit. First, as noted in our 
proposed rule, the term ``equivalent method'' should be replaced with 
the term ``alternative method,'' as these phrases have distinct 
meanings. Second, not all alternative procedures under Appendix 8 would 
necessarily end up in a Title V permit. Finally, depending on EPA's 
workload, we may not review every Title V permit thoroughly, and our 
default approval of an alternative procedure by our oversight, would 
not comply with the intent of Clean Air Act section 110(i). Appendix 8 
must be revised to provide the criteria that will be used to determine 
approvability of an alternative method or must explicitly require the 
approval of both the ADEQ Director and EPA of an alternate analytical 
procedure.
    Comment 2: EPA cited as a deficiency the absence of references to 
specific test methods for barium sulfate and potassium iodine 
procedures, as well as ``chemical gravimetric means.'' AMA states that 
the chemical gravimetric means of analysis in sections A.8.1.2.3.1, 
A.8.1.2.3.2, and A.8.2.5.5 of appendix 8 are taken from Standard 
Methods of Chemical Analysis, 6th edition, N. Howell Furman, Ph.D, 
editor, D. Van Nostrand Co., Inc. (1962). This has been the ``bible'' 
of chemical analytical methods since the 1930s.
    Response: We concur that this is an excellent reference for 
chemical gravimetric means and chemical analytical methods. However, 
this reference is missing from the submitted rule. It should be 
explicitly cited in Appendix 8.
    Comment 3: EPA requested clarification of sampling procedures for 
sulfur-bearing materials introduced into the smelting process, so that 
sampling is not biased. ADEQ states that the materials sampled are a 
fine homogeneous mixture of concentrate from the flotation process, and 
therefore the current methods in sections A.8.1.2.1.1, A.8.1.2.1.2, and 
A.8.1.2.1.3 of appendix 8 are adequate to assure accurate accounting of 
the sulfur-bearing materials.
    Response: As noted by ADEQ, sampling bias can occur when there is a 
large variation in the size of materials being sampled. However, 
sampling from a homogeneous mixture of finely ground material can be 
considered reliable and unbiased. Additional sulfur bearing materials 
are also introduced to the smelting process along with the homogeneous 
dry floatation concentrate mentioned by ADEQ, but the concentrate 
contains over 90% of the sulfur content in the mixture. EPA concurs 
that the methods described in the sections cited in Comment 3 are 
adequate for the type of sulfur-bearing material described. Therefore, 
we are not finalizing our concern regarding sampling procedures as a 
deficiency.
    Comment 4: EPA commented that the accuracy of gravimetric methods 
is normally about 1% instead of the 50% 
accuracy required in section A.8.2.5.5. This requirement addresses the 
sulfur content of copper ingots. The sulfur content of copper ingots at 
one facility over a one-month period was 4 to 108 ppm sulfur with an 
average of 24.5 ppm. At these very low sulfur contents, an accuracy of 
1% is not feasible.
    Response: EPA believes that better accuracy than 50% 
for sulfur in copper ingots is feasible, although not close to 1%. However, a 50% error in the sulfur content of 
copper ingots would cause a maximum error in the sulfur balance of 
0.03%. Other measurements in the sulfur balance are subject 
to greater maximum errors, such as 5%, therefore an 
accuracy of better than 50% is not reasonably required for 
the section A.8.2.5.5 contribution to the sulfur balance. Therefore, we 
are not finalizing our concern about the accuracy of gravimetric 
methods as a deficiency. However, as specified in deficiency 4 
above, Section A.8.2.5.5 should provide a specific test method for 
``chemical gravimetric means,'' and should be revised to specify the 
maximum error as 50%, rather than 50%.

III. EPA Action

    Although some submitted comments led us to not finalize some 
deficiencies listed in the proposed action, the remaining deficiencies 
in Rule R-18-2-appendix 8 conflict with section 110 and part D of the 
CAA and prevent full approval of this rule. Therefore, as authorized in 
sections 110(k)(3) and 301(a) of the Act, EPA is finalizing a full 
approval of ADEQ's submitted Rules R18-2-715 (sections F, G, and H), 
R18-2-715.01, and R-18-2-715.02. We are also finalizing a limited 
approval of Rule R-18-2-appendix 8. This action

[[Page 63323]]

incorporates the submitted rules into the Arizona SIP, including those 
provisions identified as deficient. As authorized under section 
110(k)(3), EPA is simultaneously finalizing a limited disapproval of 
the Rule R-18-2-appendix 8. As a result, sanctions will be imposed 
unless EPA approves subsequent SIP revisions that correct the rule 
deficiencies within 18 months of the effective date of this action. 
These sanctions will be imposed under section 179 of the Act according 
to 40 CFR 52.31. In addition, EPA must promulgate a federal 
implementation plan (FIP) under section 110(c) unless we approve 
subsequent SIP revisions that correct the rule deficiencies within 24 
months. Note that the submitted rules have been adopted by the ADEQ, 
and EPA's final limited disapproval does not prevent the local agency 
from enforcing them.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

B. Paperwork Reduction Act

    This rule does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.)

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small 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.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    Protection of Children From Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under 
Executive Order 12866, and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children, and

[[Page 63324]]

explain why the planned regulation is preferable to other potentially 
effective and reasonably feasible alternatives considered by the 
Agency.
    This rule is not subject to Executive Order 13045 because it does 
not involve decisions intended to mitigate environmental health or 
safety risks.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    The EPA believes that VCS are inapplicable to this action. Today's 
action does not require the public to perform activities conducive to 
the use of VCS.

J. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective December 1, 2004.

K. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by January 3, 2005. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Reporting and recordkeeping 
requirements, Sulfur oxides.

    Dated: September 14, 2004.
Wayne Nastri,
Regional Administrator, Region IX.

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)(110)(i)(A)(2) and 
(c)(116) to read as follows:


Sec.  52.120  Identification of plan.

* * * * *
    (c) * * *
    (110) * * *
    (i) * * *
    (A) * * *
    (2) Rules R18-2-715.02 and R18-2-715, Appendix 8 amended on 
November 15, 1993.
* * * * *
    (116) New and amended regulations were submitted on September 12, 
2003, by the Governor's designee.
    (i) Incorporation by reference.
    (A) Arizona Department of Environmental Quality.
    (1) Rules R18-2-715 (sections F, G, and H) and R18-2-715.01 amended 
on August 9, 2002.

[FR Doc. 04-24334 Filed 10-29-04; 8:45 am]
BILLING CODE 6560-50-P