Federal Register / Vol. 69, No. 82 / Wednesday, April 28, 2004 / Rules and Regulations 23103

Risks. This rule is not an economically 

significant rule and does not concern an 

environmental risk to health or risk to 

safety that may disproportionately affect 

children. 

Indian Tribal Governments 

This rule does not have tribal 

implications under Executive Order 

13175, Consultation and Coordination 

with Indian Tribal Governments, 

because it would 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. 

Energy Effects

The Coast Guard has analyzed this 

rule under Executive Order 13211, 

Actions Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use. We have 

determined that it is not a ‘‘significant 

energy action’’ under that order because 

it is not a ‘‘significant regulatory action’’

under Executive Order 12866 and is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. It has not been designated by the 

Administrator of the Office of 

Information and Regulatory Affairs as a 

significant energy action. Therefore, it 

does not require a Statement of Energy 

Effects under Executive Order 13211. 

Environment 

We have considered the 

environmental impact of this rule and 

concluded that, under figure 2–1, 

paragraph 32(g) of Commandant 

Instruction M16475.1C, this rule is 

categorically excluded from further 

environmental documentation. A 

written categorical exclusion 

determination is available in the docket 

for inspection or copying where 

indicated under ADDRESSES.

List of Subjects in 33 CFR Part 165 

Harbors, Marine safety, Navigation 

(water), Reporting and recordkeeping 

requirements, Waterways.

■ For the reasons discussed in the 

preamble, the Coast Guard amends 33 

CFR part 165 as follows:

PART 165—REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS

■ 1. The authority citation for part 165 

continues to read as follows:

Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 

Chapter 701; 50 U.S.C. 191, 195; 33 CFR 

1.05–1(g), 6.04–1, 6.04–6, and 160.5; Pub. L. 

107–295, 116 Stat. 2064; Department of 

Homeland Security Delegation No. 0170.1

■ 2. Add § 165.920 to read as follows:

§ 165.920 Regulated Navigation Area: 

USCG Station Port Huron, Port Huron, MI, 

Lake Huron. 

(a) Location. All waters of Lake Huron 

encompassed by the following: starting 

at the northwest corner at 43°00.4′ N, 

082°25.327′ W; then east to 43°00.4′ N, 

082°25.23.8′ W; then south to 43°00.3′

N, 082°25.238′ W; then west to 43°00.3′

N, 082°25.327′ W; then following the 

shoreline north back to the point of 

origin (NAD 83). 

(b) Special regulations. No vessel may 

fish, anchor, or moor within the RNA 

without obtaining the approval of the 

Captain of the Port (COTP) Detroit. 

Vessels need not request permission 

from COTP Detroit if only transiting 

through the RNA. COTP Detroit can be 

reached by telephone at (313) 568–9580, 

or by writing to: MSO Detroit, 110 Mt. 

Elliot Ave., Detroit MI 48207–4380.

Dated: April 21, 2004. 

Ronald F. Silva, 

Rear Admiral, U.S. Coast Guard, Commander, 

Ninth Coast Guard District.

[FR Doc. 04–9623 Filed 4–27–04; 8:45 am] 

BILLING CODE 4910–15–P

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.

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, 

petersen.alfred@epa.gov.

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

Local agency Rule No. Rule title Adopted or amended or 

codified Submitted 

PCAQCD ........................... 2–8–300 Performance Standards [Visible Emissions] ............. 06/29/93 adopted ............. 11/27/95 

PCAQCD ........................... 3–8–700 General Provisions [Open Burning] ........................... 02/22/95 amended ........... 11/27/95 

PCAQCD ........................... 5–24–1040 Carbon Monoxide Emissions—Industrial Processes 02/22/95 codified ............. 11/27/95 

23104 Federal Register / Vol. 69, No. 82 / Wednesday, April 28, 2004 / Rules and Regulations 

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 Emissions] ....................................... 06/29/93 adopted ............. 11/27/95 

PCAQCD ........................... 2–8–290 Definitions [Visible Emissions] ................................... 06/29/93 adopted ............. 11/27/95 

PCAQCD ........................... 2–8–310 Exemptions [Visible Emissions] ................................. 06/29/93 adopted ............. 11/27/95 

PCAQCD ........................... 2–8–320 Monitoring and Records [Visible Emissions] ............. 06/29/93 adopted ............. 11/27/95 

PCAQCD ........................... 3–8–710 Permit Provisions and Administration [Open Burning].02/22/95 amended ........... 11/27/95 

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

State Local agency Per cent

opacity 

Ringlemann 

No. 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 AQMD ............................................ ........................ 1 401 

California ................................. San Diego APCD .................................................................... ........................ 1 50 

California ................................. San Joaquin Valley Unified APCD .......................................... ........................ 1 4101 

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

Federal Register / Vol. 69, No. 82 / Wednesday, April 28, 2004 / Rules and Regulations 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.

23106 Federal Register / Vol. 69, No. 82 / Wednesday, April 28, 2004 / Rules and Regulations 

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

Federal Register / Vol. 69, No. 82 / Wednesday, April 28, 2004 / Rules and Regulations 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-bycase 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. § 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

23108 Federal Register / Vol. 69, No. 82 / Wednesday, April 28, 2004 / Rules and Regulations 

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 costeffective 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.

Federal Register / Vol. 69, No. 82 / Wednesday, April 28, 2004 / Rules and Regulations 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.

■ Part 52, chapter I, title 40 of the Code 

of Federal Regulations is amended as 

follows:

PART 52—[AMENDED]

■ 1. The authority citation for Part 52 

continues to read as follows:

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

Subpart D—Arizona

■ 2. Section 52.120 is amended by 

adding paragraphs (c)(84)(i)(I), (84)(i)(J), 

and (84)(i)(K) to read as follows:

§ 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

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[R04–0AR–2003–FL–0001–200414(w); FRL–

7654–5] 

Approval and Promulgation of 

Implementation Plans: Florida; 

Broward County Aviation Department 

Variance; Withdrawal of Direct Final 

Rule

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Withdrawal of direct final rule.

SUMMARY: Due to an adverse comment, 

EPA is withdrawing the direct final rule 

to approve revisions to State 

Implementation Plan submitted by the 

State of Florida for the purpose of a 

department order granting a variance 

from Rule 62–252.400 to the Broward 

County Aviation Department. In the 

direct final rule published on April 6, 

2004, (69 FR 17929), we stated that if we 

received adverse comment by May 6, 

2004, the rule would be withdrawn and 

not take effect. EPA subsequently 

received an adverse comment. EPA will 

address the comment received in a 

subsequent final action based upon the 

proposed action also published on April 

6, 2004, (69 FR 18006). EPA will not 

institute a second comment period on 

this action.

EFFECTIVE DATE: The Direct final rule is 

withdrawn as of April 28, 2004.

FOR FURTHER INFORMATION CONTACT:

Sean Lakeman, Regulatory Development 

Section, Air Planning Branch, Air, 

Pesticides and Toxics Management 

Division, U.S. Environmental Protection 

Agency, Region 4, 61 Forsyth Street, 

SW., Atlanta, Georgia 30303–8960. The 

telephone number is (404) 562–9043. 

Mr. Lakeman can also be reached via 

electronic mail at 

lakeman.sean@epa.gov.

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Nitrogen dioxide, Ozone, 

Particulate matter, Reporting and 

recordkeeping requirements, Volatile 

organic compounds.

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