02-25856. Revisions to the Arizona State Implementation Plan, Arizona Department of Environmental Quality

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

EPA is proposing a simultaneous limited approval and limited disapproval of revisions to the Arizona Department of Environmental Quality (ADEQ) portion of the Arizona State Implementation Plan (SIP) concerning definitions, volatile organic compound (VOC) emissions from dry cleaning and spray painting and as well as visible emissions from mobile equipment. We are also proposing full approval of revisions to the ADEQ portion of the Arizona State SIP concerning VOC emissions from petroleum storage tanks and visible emissions from mobile equipment.

We are proposing action on local rules that regulate these emission sources under the Clean Air Act as amended in 1990 (CAA or the Act). We are taking comments on this proposal and plan to follow with a final action.

DATES:

Any comments must arrive by November 12, 2002.

ADDRESSES:

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

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

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.

A copy of the rule may also be available via the Internet at http://www.sosaz.com/​public_​services/​Title_​18/​18_​table.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, 75 Hawthorne Street, San Francisco, CA 94105; [phone].

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 are the changes in the submitted rules?

II. EPA's Evaluation and Action

A. How is EPA evaluating the rules?

B. Do the rules meet the evaluation criteria?

C. What are the rule deficiencies?

D. Proposed action and public comment

III. Background information

A. Why were these rules submitted?

IV. Administrative Requirements

I. The State's Submittal

A. What Rules Did the State Submit?

Table 1 lists the rules proposed for limited approval and limited disapproval with the date that they were adopted and submitted by the Arizona Department of Environmental Quality (ADEQ).

Table 1.—Submitted Rules

Local agency	Rule No.	Rule title	Adopted	Submitted
ADEQ	R18-2-701	Definitions	11/15/93	07/15/98
ADEQ	R18-2-725	Standards of Performance for Existing Dry Cleaning Plants	11/15/93	07/15/98
ADEQ	R18-2-727	Standards of Performance for Spray Painting Operations	11/15/93	07/15/98
ADEQ	R18-2-801	Classification of Mobile Sources	11/15/93	07/15/98
ADEQ	R18-2-802	Off-Road Machinery	11/15/93	07/15/98

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

Table 2 lists the rules proposed for full approval with the date that they were adopted and submitted by the Arizona Department of Environmental Quality (ADEQ).

Table 2.—Submitted Rules

Local agency	Rule No.	Rule title	Adopted	Submitted
ADEQ	R18-2-710	Standards of Performance for Existing Vessels for Petroleum Liquids	11/15/93	07/15/98
ADEQ	R18-2-803	Heater-Planer Units	11/15/93	07/15/98
ADEQ	R18-2-804	Roadway and Site cleaning Machinery	11/15/93	07/15/98
ADEQ	R18-2-805	Asphalt or Tar Kettles	11/15/93	07/15/98

On December 18, 1998, we determined that the rule submittals in Table 2 met the completeness criteria.

B. Are There Other Versions of These Rules?

There is no prior version of submitted Rule R18-2-701. We approved versions of submitted Rules R18-2-710, R18-2-725, and R18-2-727 as SIP Rules R9-3-510, R9-3-525, and R9-3-527, respectively, on April 23, 1982 (47 FR 17485). We approved versions of submitted Rules R18-2-801, R18-2-802, R18-2-803, R18-2-804, and R18-2-805 as SIP Rules R9-3-601, R9-3-602, R9-3-603, R9-3-604, and R9-3-605, respectively, on April 23, 1982 (47 FR 17485).

C. What Are the Changes in the Submitted Rules?

• The new Rule R18-2-701 lists 33 definitions that apply to the rules in article 7 (the R18-2-7xx series).
• Rule R18-2-710 deletes section E concerning seasonal volatility adjustments of gasoline. Section E required a seasonal schedule for delivery of four different volatility grades of gasoline.
• Rule R18-2-725 adds a definition for “photochemically reactive solvents.”
• Rule R18-2-727 adds a definition for “photochemically reactive solvents,” adds a prohibition on the use of a photochemically reactive solvent in architectural coatings for commercial purposes, and adds a prohibition on the dilution of architectural coatings with a photochemically reactive solvent.
• Rules R18-2-801, R18-2-802, and R18-2-803 are renumbered, and Rule R18-2-801 is renamed.
• Rules R18-2-804 and R18-2-805 are renumbered and reformatted.

II. EPA's Evaluation and Action

A. How Is EPA Evaluating the Rules?

Generally, SIP rules must be enforceable (see section 110(a) of the Act), must require Reasonably Available Control Technology (RACT) for major sources in nonattainment areas (see section 182(a)(2)(A)), and must not relax existing requirements (see sections 110(l) and 193). All areas regulated by ADEQ rules are ozone attainment (see 40 CFR part 81), and VOC rules need not meet the requirements of RACT.

Guidance and policy documents that we used to define specific enforceability and RACT requirements for VOC rules 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; Clarification to Appendix D of November 24, 1987 Federal Register Notice, (Blue Book), notice of availability published in the May 25, 1988 Federal Register.
• Control of Volatile Organic Emissions from Storage of Petroleum Liquids in Fixed-Roof Tanks, EPA-450/2-77-036 (December 1977).
• Control of Volatile Organic Emissions Petroleum Liquid Storage in External floating Roof Tanks, EPA-450/2-78-047 (December 1978).
• Control of Volatile Organic Emissions from Perchloroethylene Dry Cleaning Systems, EPA-450/2-78-050 (December 1978).
• Control of Volatile Organic Emissions from Large Petroleum Dry Cleaners, EPA-450/3-82-009 (September 1982).
• Control of Volatile Organic Emissions from Existing Stationary Sources—Volume I: Control Methods for Surface-Coating Operations, EPA-450/2-76-028 (November 1976).

Sections 172(c)(1) and 189(a) of the CAA require moderate PM-10 nonattainment areas to implement reasonably available control measures (RACM), including RACT for stationary sources of PM-10. The areas regulated by the rules include PM-10 nonattainment areas. RACM/RACT is required to be fulfilled for all source categories unless there are no major sources of PM-10 and a particular source category does not contribute significantly to PM-10 levels in excess of the NAAQS (i.e., de minimis sources). See General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990, 57 FR 13498, 13540 (April 16, 1992) and Addendum to the General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990, 59 FR 41998, 42011 (August 16, 1994). The activities subject to Rules R18-2-801, R18-2-802, R18-2-803, R18-2-804 and R18-2-805 do not have major sources or emit a significant amount of PM-10 according to the PM-10 attainment plans in the relevant nonattainment areas and therefore the rules are not required to meet RACM/RACT control levels.

The guidance and policy documents that we used to define specific enforceability and SIP relaxation requirements for PM-10 rules are as follows:

• Requirements for Preparation, Adoption, and Submittal of Implementation Plans, U.S. EPA, 40 CFR Part 51.
• PM-10 Guideline Document, (EPA-452/R093-008).

B. Do the Rules Meet the Evaluation Criteria?

The rules are largely consistent with the relevant policy and guidance regarding enforceability, RACT, and SIP relaxations. Rule provisions which do not meet the evaluation criteria are summarized below and discussed further in the TSDs.

C. What Are the Rule Deficiencies?

Rule R18-2-701 has the following deficiencies:

• “Calcine” should not be limited to only lime plants.
• “Process Weight” should be eliminated, because it has no meaning unless it is given for a specific time period.
• “Process Weight Rate” should be defined in the rule and not be based on Rule R18-2-702, which is not in the SIP.

Rule R18-2-725 has the following deficiencies:

• The enforceability is limited, because there are no monitoring and recordkeeping requirements.
• The enforceability is limited, because there is no test method given for the efficiency of recovery of solvent emmissions.

Rule R18-2-727 has the following deficiencies:

Rules R18-2-801 and R18-2-802 have the following deficiencies:

• The rules should be restricted to apply to used or in-use nonroad engines and not to new nonroad engines. Section 209(e) of the CAA prohibits states from adopting or attempting to enforce any standard relating to the control of emissions from (A) new engines which are used in construction equipment or vehicles or used in farm equipment or vehicles and which are smaller than 175 horsepower and (B) new (or remanufactered) locomotives or new (or remanufactered) engines which are used in locomotives. States are not precluded under section 209(e) from regulating the use and operation of nonroad engines, including regulating daily mass emission limits (such as through an opacity standard), once the engine is no longer new, according to 40 CFR part 89, subpart A, appendix A.
• The rules should exclude from applicability locomotives or engines which are used in locomotives. Locomotives are required to be in compliance with Federal emission standards throughout their useful life.
• The rules should exempt nonroad engines from any potential requirement to retrofit in order to meet the opacity standard unless California has an identical retrofitting requirement. States are precluded from requiring retrofitting of used nonroad engines to meet emission standards, except that states may adopt and enforce retrofitting requirements identical to California retrofitting requirements which have been authorized by EPA, according to 40 CFR part 89, subpart A, appendix A.

D. Proposed Action and Public Comment

As authorized in sections 110(k)(3) and 301(a) of the CAA, EPA is proposing a limited approval of Rules R18-2-701, R18-2-725, R18-2-727, R18-2-801, and R18-2-802 to improve the SIP. If finalized, this action would incorporate the submitted rules into the SIP, including those provisions identified as deficient. This approval is limited because EPA is simultaneously proposing a limited disapproval of the rules under section 110(k)(3). If this limited disapproval is finalized, sanctions will not be imposed under section 179 of the CAA because these are not required submittals. Note that the submitted rules have been adopted by the ADEQ, and our final limited disapproval would not prevent the local agency from enforcing them.

We are also granting full approval to Rules R18-2-710, R18-2-803, R18-2-804, and R18-2-805.

We will accept comments from the public on the proposed limited approval and limited disapprovals and the proposed full approvals for the next 30 days.

III. Background Information

A. Why Were These Rules Submitted?

VOCs help produce ground-level ozone and smog, which harm human health and the environment. Section 110(a) of the CAA requires states to submit regulations that control VOC emissions. Table 3 lists some of the national milestones leading to the submittal of these local agency VOC rules.

Table 3.—Ozone Nonattainment Milestones

Date	Event
March 3, 1978	EPA promulgated a list of ozone nonattainment areas under the Clean Air Act as amended in 1977. 43 FR 8964; 40 CFR 81.305.
May 26, 1988	EPA notified Governors that parts of their SIPs were inadequate to attain and maintain the ozone standard and requested that they correct the deficiencies (EPA's SIP-Call). See section 110(a)(2)(H) of the pre-amended CAA.
November 15, 1990	Clean Air Act Amendments of 1990 were enacted. Pub. L. 101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-7671q.
May 15, 1991	Section 182(a)(2)(A) requires that ozone nonattainment areas correct deficient RACT rules by this date.

PM-10 harms human health and the environment. Section 110(a) of the CAA requires states to submit regulations that control PM-10 emissions. Table 4 lists some of the national milestones leading to the submittal of local agency PM-10 rules.

Table 4.—PM-10 Nonattainment Milestones

Date	Event
March 3, 1978	EPA promulgated a list of total suspended particulate (TSP) nonattainment areas under the Clean Air Act, as amended in 1977. 43 FR 8964; 40 CFR 81.305.
July 1, 1987	EPA replaced the TSP standards with new PM standards applying only up to 10 microns in diameter (PM-10). 52 FR 24672.
November 15, 1990	Clean Air Act Amendments of 1990 were enacted, Pub. L. 101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-7671q.
November 15, 1990	PM-10 areas meeting the qualifications of section 107(d)(4)(B) of the CAA were designated nonattainment by operation of law and classified as moderate pursuant to section 188(a). States are required by section 110(a) to submit rules regulating PM-10 emissions in order to achieve the attainment dates specified in section 188(c).

IV. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget has exempted this regulatory action from Executive Order 12866, Regulatory Planning and Review.

B. Executive Order 13211

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.

C. Executive Order 13045

Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be “economically significant” as defined under 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.

D. Executive Order 13132

Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612, Federalism and 12875, Enhancing the Intergovernmental Partnership. 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 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 acts on a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. Thus, the requirements of section 6 of the Executive Order do not apply to this proposed rule.

E. Executive Order 13175

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 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.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”

This proposed rule does not have tribal implications. 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, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule. In the spirit of Executive Order 13175, and consistent with EPA policy to promote communications between EPA and tribal governments, EPA specifically solicits additional comment on this proposed rule from tribal officials.

F. Regulatory Flexibility Act

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

This proposed rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the CAA do not create any new requirements but simply act on 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.

EPA's proposed disapproval of the state request under section 110 and subchapter I, part D of the CAA does not affect any existing requirements applicable to small entities. Any pre-existing federal requirements remain in place after this disapproval. Federal disapproval of the state submittal does not affect state enforceability. Moreover, EPA's disapproval of the submittal does not impose any new Federal requirements. Therefore, 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 CAA, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The CAA 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).

G. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate; or to private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

EPA has determined that the proposed action does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This proposed Federal action acts on pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.

H. National Technology Transfer and Advancement Act

Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.

EPA believes that VCS are inapplicable to today's proposed action because it does not require the public to perform activities conducive to the use of VCS.

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Intergovernmental relations
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Volatile organic compound

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

Dated: September 19, 2002.

Keith Takata,

Acting Regional Administrator, Region IX.