[Federal Register Volume 71, Number 70 (Wednesday, April 12, 2006)]
[Rules and Regulations]
[Pages 18624-18626]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-3405]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2006-0227; FRL-8054-8]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve revisions to the 
Arizona Department of Environmental Quality (ADEQ) portion of the 
Arizona State Implementation Plan (SIP). These revisions concern 
procedures for the calculation of sulfur emissions from copper 
smelters. We are approving a local rule that helps regulate these 
emission sources under the Clean Air Act as amended in 1990 (CAA or the 
Act).

DATES: This rule is effective on June 12, 2006 without further notice, 
unless EPA receives adverse comments by May 12, 2006. If we receive 
such comments, we will publish a timely withdrawal in the Federal 
Register to notify the public that this direct final rule will not take 
effect.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2006-0227, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions.
     E-mail: [email protected].
     Mail or deliver: Andrew Steckel (Air-4), U.S. 
Environmental Protection Agency Region IX, 75 Hawthorne Street, San 
Francisco, CA 94105.
    Instructions: All comments will be included in the public docket 
without change and may be made available online at www.regulations.gov, 
including any personal information provided, unless the comment 
includes Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. Information that you 
consider CBI or otherwise protected should be clearly identified as 
such and should not be submitted through www.regulations.gov or e-mail. 
www.regulations.gov is an ``anonymous access'' system, and EPA will not 
know your identity or contact information unless you provide it in the 
body of your comment. If you send e-mail directly to EPA, your e-mail 
address will be automatically captured and included as part of the 
public comment. If EPA cannot read your comment due to technical 
difficulties and cannot contact you for clarification, EPA may not be 
able to consider your comment.
    Docket: The index to the docket for this action is available 
electronically at http://www.regulations.gov. and in hard copy at EPA 
Region IX, 75 Hawthorne Street, San Francisco, California. While all 
documents in the docket are listed in the index, some information may 
be publicly available only at the hard copy location (e.g., copyrighted 
material), and some may not be publicly available in either location 
(e.g., CBI). To inspect the hard copy materials, please schedule an 
appointment during normal business hours with the contact listed in the 
FOR FURTHER INFORMATION CONTACT section.

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.

Table of Contents

I. The State's Submittal
    A. What Rule Did the State Submit?
    B. Are There Other Versions of the Rule?
    C. What is the Purpose of the Submitted Rule Amendments?
II. EPA's Evaluation and Action
    A. How is EPA Evaluating the Rule?
    B. Do the Rule Amendments Meet the Evaluation Criteria?
    C. Public Comment and Final Action
III. Statutory and Executive Order Reviews

I. The State's Submittal

A. What Rule Did the State Submit?

    Table 1 lists the rule we are approving with the date that the 
amended rule became effective and was submitted by the ADEQ.

                                            Table 1.--Submitted Rule
----------------------------------------------------------------------------------------------------------------
                                                                                      Amended
         Agency                    Rule No.                   Rule title             effective       Submitted
----------------------------------------------------------------------------------------------------------------
ADEQ....................  R18-2-Appendix 8..........  Procedures for Utilizing          07/18/05        03/01/06
                                                       the Sulfur Balance Method
                                                       for Determining Sulfur
                                                       Emissions.
----------------------------------------------------------------------------------------------------------------


[[Page 18625]]

    ADEQ submitted this amended rule (final but not yet codified) 
originally on January 18, 2006 together with public hearing and State 
rulemaking documentation. On February 22, 2006, this rule submittal was 
found to meet the completeness criteria in 40 CFR part 51, appendix V, 
which must be met before formal EPA review. On March 1, 2006, ADEQ 
submitted the codified version of this final rule as a supplement to 
the original January 18, 2006 submittal.

B. Are There Other Versions of the Rule?

    We approved a version of ADEQ Rule R18-2-Appendix 8 into the SIP on 
November 1, 2004 (69 FR 63321).

C. What Is the Purpose of the Submitted Rule Amendments?

    Section 110(a) of the Clean Air Act (CAA) requires states to submit 
regulations that control volatile organic compounds, nitrogen oxides, 
particulate matter, sulfur oxides, and other air pollutants which harm 
human health and the environment. This rule was developed as part of 
the ADEQ's program to control sulfur oxides.
    Rule R18-2-appendix 8 was granted a limited approval and limited 
disapproval on November 1, 2004. The deficiencies in Rule R18-2-
appendix 8 that conflict with section 110 and part D of the CAA and 
prevented full approval of the rule are summarized below in the 
brackets, which are followed by the amendments made to correct the 
deficiencies:
     [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 amended rule corrects the 
deficiency by requiring the written approval by EPA in addition to the 
Director of alternative methods of obtaining sulfur content and removed 
sulfur.
     [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.] This recommendation by EPA for further clarification 
was optional, and the methods as stated along with the sample 
preparation methods in section A8.1.2.2 will be accepted.
     [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.] The amended rule corrects the deficiency by 
requiring specific test methods for barium sulfate and potassium iodide 
in section A8.4.3.
     [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 amended rule corrects the deficiency by requiring the 
barium sulfate gravimetric method in section A8.4.3 and states the 
required accuracy to be +/-50% instead of +50%. The actual accuracy is 
normally much better than +/-50%, but the lesser accuracy required is 
not cause to disapprove the rule.
     [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).] The amended 
rule changes these references appropriately.
    EPA's technical support document (TSD) has more information about 
this rule.

II. EPA's Evaluation and Action

A. How Is EPA Evaluating the Rule?

    Generally, SIP rules must be enforceable (see section 110(a) of the 
CAA) and must not relax existing requirements (see sections 110(1) and 
193). There are no specific reasonably available control measures 
(RACM) or best available control measures (BACM) for administrative 
rules.
    Guidance and policy documents that we used to help evaluate 
specific enforceability and RACT requirements consistently include the 
following:
     Requirements for Preparation, Adoption, and Submittal of 
Implementation Plans, U.S. EPA, 40 CFR part 51.
     Guidance Document for Correcting Common VOC & Other Rule 
Deficiencies, EPA Region IX (August 21, 2001). (The Little Bluebook)

B. Do the Rule Amendments Meet the Evaluation Criteria?

    We believe the rule is consistent with the relevant policy and 
guidance regarding enforceability, SIP relaxations, BACM, and RACM. We 
also believe that the submitted rule adequately addresses the 
deficiencies identified in our November 1, 2004 limited disapproval. 
The TSD has more information on our evaluation.

C. Public Comment and Final Action

    As authorized in section 110(k)(3) of the CAA, EPA is fully 
approving the submitted ADEQ Rule R18-2-Appendix 8 because we believe 
it fulfills all relevant requirements. We do not think anyone will 
object to this approval, so we are finalizing it without proposing it 
in advance. However, in the Proposed Rules section of this Federal 
Register, we are simultaneously proposing approval of the same 
submitted rule. If we receive adverse comments by May 12, 2006, we will 
publish a timely withdrawal in the Federal Register to notify the 
public that the direct final approval will not take effect and we will 
address the comments in a subsequent final action based on the 
proposal. If we do not receive timely adverse comments, the direct 
final approval will be effective without further notice on June 12, 
2006. This will incorporate this rule into he federally enforceable SIP 
and permanently terminate all sanctions and FIP implications of our 
2004 limited disapproval.

III. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, 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, as specified by Executive Order 13175

[[Page 18626]]

(65 FR 67249, November 9, 2000). This action also does not have 
federalism implications because it does 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 (64 FR 43255, August 10, 1999). This action 
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. This rule also is 
not subject to Executive Order 13045 ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997), because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
in-consistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. This, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. 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.).
    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).
    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 12, 2006. 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.

    Dated: March 22, 2006.
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 paragraph (c)(130) to read as 
follows:


Sec.  52.120  Identification of plan.

* * * * *
    (c) * * *
    (130) An amended regulation was submitted on March 1, 2006, by the 
Governor's designee.
    (i) Incorporation by reference.
    (A) Arizona Department of Environmental Quality.
    (1) Rule R18-2-Appendix 8, adopted on December 22, 1976 and amended 
effective on July 18, 2005.

[FR Doc. 06-3405 Filed 4-11-06; 8:45 am]
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