[Federal Register Volume 63, Number 69 (Friday, April 10, 1998)]
[Rules and Regulations]
[Pages 17680-17683]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-9554]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AR-2-1-5646a; FRL-5990-9]


Approval and Promulgation of Implementation Plans; Arkansas; 
Recodification of Air Quality Control Regulations and Correction of 
Sulfur Dioxide Enforceability Deficiencies

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: This action approves Arkansas Department of Pollution Control 
and Ecology (ADPC&E) Regulation #19, as adopted by the Arkansas 
Commission on Pollution Control and Ecology (Commission) on July 24, 
1992, as a revision to the Arkansas State Implementation Plan (SIP). 
Regulation #19, ``Compilation of Regulations of the Arkansas State 
Implementation Plan for Air Pollution Control,'' replaces the air 
quality control regulations formerly in the ``Regulations of the 
Arkansas Plan of Implementation for Air Pollution Control'' 
(Regulations of the Plan), in the ``Prevention of Significant 
Deterioration Supplement to the Regulations of the Arkansas Plan of 
Implementation for Air Pollution Control,'' (PSD Regulations), and in 
the ``Regulations for the Control of Volatile Organic Compounds'' (VOC 
Regulations). Regulation #19 also corrects sulfur dioxide 
(SO2) enforceability deficiencies in the Arkansas SIP. The 
effect of this action is to approve all sections of Regulation #19, 
except Section 19.8, into the Arkansas SIP.

DATES: This action is effective on June 9, 1998, unless adverse or 
critical comments are received by May 11, 1998. If the effective date 
is delayed, timely notice will be published in the Federal Register.

ADDRESSES: Written comments on this action should be addressed to Mr. 
Thomas H. Diggs, Chief, Air Planning Section (6PD-L), at the EPA Region 
6 Office listed below. Copies of the State submittal and the EPA 
Evaluation Report are available for public inspection during normal 
business hours at the following locations. Anyone wanting to examine 
these documents should make an appointment with the appropriate office 
at least two working days in advance.
    Environmental Protection Agency, Region 6, Air Planning Section 
(6PD-L), 1445 Ross Avenue, Dallas, Texas 75202-2733.
    Arkansas Department of Pollution Control and Ecology, Division of 
Air Pollution Control, 8001 National Drive, P.O. Box 8913, Little Rock, 
Arkansas 72219-8913.
    Documents which are incorporated by reference are available for 
public inspection at the Air and Radiation Docket and Information 
Center, Environmental Protection Agency, 401 M Street, SW., Washington, 
DC 20460.

FOR FURTHER INFORMATION CONTACT: Bill Deese of the EPA Region 6 Air 
Planning Section at (214) 665-7253 at the address above.

SUPPLEMENTARY INFORMATION:

I. Background

    The EPA required the State of Arkansas to correct enforceability 
deficiencies in its SO2 regulations and to correct 
continuous emission monitoring requirements in its Plan for Designated 
Facilities and Pollutants (111(d) Plan) for total reduced sulfur from 
kraft pulp mills. Since the compilation of the existing State air 
quality control regulations was somewhat confusing, the State decided 
to combine the federally approved air quality control regulations into 
a single Regulation #19. The State also decided to delete obsolete 
materials and update the regulations in the Regulations of the Plan. 
The EPA was supportive of the State making these revisions.
    The Governor of Arkansas submitted Regulation #19, as adopted by 
the Commission on July 24, 1992, to EPA on September 14, 1992, as a 
revision to the Arkansas SIP. A public hearing on Regulation #19 was 
held on May 28, 1992, in Little Rock, Arkansas.
    Sections 19.1 through 19.7 of Regulation #19 replace the SIP-
approved regulations found in the Regulations of the Plan. Sections 
19.9 and 19.10 are recodifications of the SIP-approved PSD Regulations 
and the SIP-approved VOC Regulations respectively.
    Section 19.8, 111(d) Designated Facilities, is a revision to the 
State 111(d) Plan and is being acted upon in a separate Federal 
Register action.

II. SO2 Enforceability Deficiencies Corrections

    A nation-wide effort was undertaken to have SO2 
enforceability deficiencies identified and corrected in SIPs before 
operating permit programs become effective. Because the operating 
permit programs will initially codify underlying SIP requirements, it 
is important that the underlying SIP is enforceable so that permits 
themselves will be enforceable.
    The EPA Region 6 Office used the ``SO2 SIP 
Enforceability Checklist'' to review the Arkansas regulations for 
SO2 to prepare a list of enforceability deficiencies in the 
Arkansas SIP. This checklist was included as an attachment to a 
November 28, 1990, memorandum from the EPA Office of Air Quality 
Planning and Standards to the EPA Regional Offices Air Branch Chiefs. 
The checklist focused on the following topics: clarity, averaging times 
consistent with protection of the SO2 National Ambient Air 
Quality Standards (NAAQS), clear compliance determinations, continuous 
emissions monitoring, adequate reporting and recordkeeping 
requirements, director's discretion issues, and stack height issues.
    These deficiencies in the Arkansas SIP have been corrected in 
Sections 19.3 and 19.7 in Regulation #19.
    Arkansas currently is attainment statewide for the SO2 
NAAQS.

III. Organization of Regulation #19

    Regulation #19 is organized as follows:

Section 19.1  Title & Purpose
Section 19.2  Definitions
Section 19.3  Protection of the National Ambient Air Quality 
Standards
Section 19.4  Permits
Section 19.5  General Emissions Limitations Applicable to Equipment
Section 19.6  Upset Conditions, Revised Emissions Limitations
Section 19.7  Sampling, Monitoring, and Reporting Requirements
Section 19.8  111(d) Designated Facilities
Section 19.9  Prevention of Significant Deterioration Supplement
Section 19.10  Regulations for the Control of Volatile Organic 
Compounds

IV. Review of Regulation #19

    A brief discussion of each section of Regulation #19 is given 
below. A more detailed review of some sections is given in the EPA 
Evaluation Report.

[[Page 17681]]

A. Section 19.1  Title & Purpose

    Section 19.1, Title & Purpose, replaces Sections 1, Title; Section 
2, Purpose; Section 9, Severability; and Section 10, Effective Date, of 
the Regulations of the Plan. Two new sections have been added: Section 
19.1(c), Format, and Section 19.1(d), Applicability. According to 
Section 19.1(d), the regulations in Regulation #19 `` * * * are 
applicable to only those sources that are required to be regulated 
under the Federal Clean Air Act.''
    The first sentence in Section 19.1(a) states that Regulation #19 
shall be referred `` * * * to as the `Regulations of the Plan,' the 
`Plan,' the `State Implementation Plan,' the `SIP,' and `Regulation 
#19.' '' Regulation #19 is not the entire plan (i.e., the Arkansas 
SIP). The SIP-approved regulations are only one element of the State 
plan. Also, Regulation #19 does not contain all of the Arkansas SIP-
approved regulations.

B. Section 19.2  Definitions

    Section 19.2, Definitions, replaces Section 3, Definitions, in the 
Regulations of the Plan.
    Definitions of the following terms are identical to the SIP-
approved definitions in the Regulations of the Plan: Commission, 
Director, Stack, Flue, Existing equipment, New equipment, Construction, 
Major modification, Emission limitation, Emission standard, Particulate 
matter, Particulate matter emissions, PM10, PM10 
emissions, and Total suspended particulate.
    The definitions of the following terms have been revised: 
Department, Equipment, Opacity, Modification, National Ambient Air 
Quality Standard, and Potential to emit.
    The stack heights definitions required by section 123 of the Act 
have been moved to Section 19.5(d) where the stack height definitions 
found in 40 CFR 51.100 are incorporated by reference.
    The following definitions have been deleted: Arkansas Air Pollution 
Control Code, Equipment used in a manufacturing process, Incinerator, 
Potential emission rate, Smoke, Standard smoke chart, Standard 
conditions, and Air quality increment. Deleted definitions are not 
required under the Federal Clean Air Act (the Act) or implementing 
regulations. Therefore deletions are considered clarifications for 
purposes of recodification.
    Definitions of the following terms have been added: Air 
contaminant, EPA, Regulated air pollutant, Secondary Emissions, 
Stationary source, and Uncontrolled potential to emit. A definition of 
Upset condition has been added in Section 19.6 of Regulation #19. The 
added definitions are clarifications.
    Terms are also defined in Sections 19.9 and 19.10.

C. Section 19.3  Protection of the National Ambient Air Quality 
Standards

    Section 19.3 gives, in general terms, the responsibilities of the 
ADPC&E and of regulated sources in meeting and maintaining the NAAQS 
found in 40 CFR 50.

D. Section 19.4  Permits

    Section 19.4, Permits, is almost identical to the SIP-approved 
Section 4, Permits, of the Regulations of the Plan. Section 4 of the 
Regulations of the Plan was approved by EPA on October 5, 1976 (41 FR 
43904), with the original Regulations of the Plan. The only revision to 
Section 4 was approved by EPA on May 1, 1989 (54 FR 18494).

E. Section 19.5  General Emissions Limitations Applicable to Equipment

    Section 19.5 replaces emission limitations in Section 5 and Section 
8 of the Regulations of the Plan.
    Section 19.5(c) is the visible emissions regulations from Sections 
8(d) and 8(e) of the Regulations of the Plan.
    Section 19.5(d) incorporates by reference the Federal stack height 
provisions of 40 CFR 51.118 and the Federal stack height definitions 
contained in 40 CFR 51.100(ff) through (kk).
    The most obvious difference between Regulation #19 and the 
regulations it replaces is the deletion of the compliance schedules in 
Section 8(f) of the Regulations of the Plan. These compliance schedules 
are for particulate matter emission limits for specific units at 
sources. They were added to meet the compliance schedules requirements 
of 40 CFR 51. These emission limits are no longer required to be in the 
SIP regulations. The units that still exist are now covered by permits.
    Figure 5(b) in the Regulations of the Plan, a graph showing 
Allowable Particulate versus Process Weight Rate, has been deleted 
because the figure is outdated and is no longer used by the State.

F. Section 19.6  Upset Conditions, Revised Emissions Limitations

    Section 19.6 replaces Section 6, Upset Conditions, Revised 
Emissions Limitations, in the Regulations of the Plan. This section 
explains how the State will handle sources exceeding the emission 
limits established in the SIP-approved regulations.

G. Section 19.7  Sampling, Monitoring, and Reporting Requirements

    Section 19.7 replaces Section 7, Sampling and Monitoring 
Requirements, in the Regulations of the Plan. In Section 19.7, the 
State strengthened the regulation by correcting enforceability 
deficiencies.

H. Section 19.8  111(d) Designated Facilities

    Section 19.8 replaces Section 8.1, Designated Facilities, in the 
Regulations of the Plan. Section 8.1 was added to the Regulations of 
the Plan to meet the requirements of section 111(d) of the Act as 
implemented in 40 CFR 60 subpart B and 40 CFR 62. Section 8.1 was 
approved by EPA as part of the Arkansas 111(d) Plan on May 12, 1982 (47 
FR 20490). Revisions to Section 8.1 and the State 111(d) Plan were 
approved by EPA on September 12, 1984, and November 10, 1986. The 
status of the Arkansas 111(d) Plan is given in 40 CFR 62 subpart E. No 
part of Section 8.1 has ever been approved as part of the Arkansas SIP.
    The EPA is taking action on Section 19.8 as a revision to the 
Arkansas 111(d) Plan in a separate Federal Register action.

I. Section 19.9  Prevention of Significant Deterioration Supplement

    Section 19.9 is almost identical to the PSD Regulations last 
adopted by the State on May 25, 1990, and approved by EPA in the 
Federal Register on May 2, 1991 (56 FR 20137). The State incorporates 
by reference, with exceptions, the Federal PSD regulations in 40 CFR 
52.24 as in effect June 28, 1989. The status of the Arkansas PSD 
Regulations in the Arkansas SIP is given in 40 CFR 52.181.

J. Section 19.10  Regulations for the Control of Volatile Organic 
Compounds

1. Background of the Arkansas VOC Regulations
    A Federal Register action published March 3, 1978 (43 FR 08962), 
determined that Pulaski County, Arkansas, did not meet the ambient 
ozone monitoring requirements and was classified as nonattainment for 
ozone. The VOC Regulations, first adopted by the Commission on March 
23, 1979, were an element of a plan the State developed for reducing 
ozone levels in Pulaski County. The regulations were conditionally 
approved by EPA on January 29, 1980 (45 FR 06569).

[[Page 17682]]

Revisions to the regulations were approved by EPA on: August 15, 1980 
(45 FR 54336), August 27, 1981 (46 FR 43146), ctober 13, 1981 (46 FR 
50370), and February 8, 1983 (48 FR O5772). These VOC regulations 
enabled Pulaski County to be redesignated to attainment for ozone on 
September 26, 1984 (49 FR 37753). The Arkansas VOC Regulations apply 
only to Pulaski County, Arkansas.
2. Section 19.10  Recodification of the VOC Regulations
    The only significant change between Section 19.10 and the SIP-
approved VOC Regulations is that the term ``photochemical oxidant'' has 
been replaced with the word ``ozone''. The EPA originally promulgated 
the standard for photochemical oxidant rather than ozone. The EPA 
changed the chemical designation of the standard from photochemical 
oxidant to ozone on February 8, 1979 (44 FR 8202). The EPA approves of 
the State changing the term ``photochemical oxidant'' to ``ozone'' in 
this regulation. Other changes are only minor changes.

V. Final Action

    The EPA is approving all sections, except Section 19.8, of ADPC&E 
Regulation #19, ``Compilation of Regulations of the Arkansas State 
Implementation Plan for Air Pollution Control,'' as adopted by the 
Arkansas Commission on Pollution Control and Ecology on July 24, 1992, 
effective August 30, 1992, and submitted by the Governor on September 
14, 1992, as a revision to the Arkansas SIP. Regulation #19 replaces 
the federally approved air quality control regulations formerly in the 
``Regulations of the Arkansas Plan of Implementation for Air Pollution 
Control,'' the ``Prevention of Significant Deterioration Supplement to 
the Regulations of the Arkansas Plan of Implementation for Air 
Pollution Control,'' and the ``Regulations for the Control of Volatile 
Organic Compounds.''
    The EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. However, in the proposed rules section of this 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve the SIP revision should 
relevant adverse comments be filed. This rule will be effective June 9, 
1998 without further notice unless the Agency receives relevant adverse 
comments by May 11, 1998.
    If EPA receives such comments, then EPA will publish a document 
withdrawing the final rule and informing the public that the rule did 
not take effect. All public comments received will then be addressed in 
a subsequent final rule based on the proposed rule. The EPA will not 
institute a second comment period on the proposed rule. Only parties 
interested in commenting on the proposed rule should do so at this 
time. If no such comments are received, the public is advised that this 
rule will be effective on June 9, 1998 and no further action will be 
taken on the proposed rule.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any SIP. Each request for revision to the SIP shall be 
considered separately in light of specific technical, economic, and 
environmental factors and in relation to relevant statutory and 
regulatory requirements.

VI. Administrative Requirements

A. Executive Order (E.O.) 12866

    The Office of Management and Budget has exempted this regulatory 
action from E.O. 12866 review.

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. See 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    The SIP approvals under section 110 and subchapter I, part D of the 
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 impose any new requirements, I certify that it does 
not have a significant impact on any small entities affected. Moreover, 
due to the nature of the Federal-State relationship under the Act, 
preparation of a flexibility analysis would constitute Federal inquiry 
into the economic reasonableness of State action. The Act forbids EPA 
to base its actions concerning SIPs on such grounds. See Union Electric 
Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

C. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995, 
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.
    The 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 
preexisting 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.

D. Audit Privilege and Immunity Law

    Nothing in this action should be construed as making any 
determination or expressing any position regarding Arkansas' audit 
privilege and immunity law (Arkansas Statutes Annotated Section 8-1-301 
et seq. (1997)). The EPA will be reviewing the effect of the Arkansas 
audit privilege and immunity law on various Arkansas environmental 
programs, including those under the Act, and taking appropriate 
action(s), if any, after thorough analysis and opportunity for Arkansas 
to state and explain its views and positions on the issues raised by 
the law. The action taken herein does not express or imply any 
viewpoint on the question of whether there are legal deficiencies in 
this or any Arkansas program resulting from the effect of the audit 
privilege and immunity law. As a consequence of the review process, the 
regulations subject to the action taken herein may be disapproved, 
Federal approval may be withdrawn, or other appropriate action may be 
taken, as necessary.

E. Submission to Congress and the Comptroller General

    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

[[Page 17683]]

of the United States. The 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. This rule is not a 
``major rule'' as defined by 5 U.S.C. 804(2).

F. Petitions for Judicial Review

    Under section 307(b)(1) of the Act, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by June 9, 1998. 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 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, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: March 26, 1998.
Lynda F. Carroll,
Acting Regional Administrator, Region 6.

    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 E--Arkansas

    2. Section 52.170 is amended by adding paragraph (c)(29) to read as 
follows:


Sec. 52.170  Identification of plan.

* * * * *
    (c) * * *
    (29) Revisions to the Arkansas State Implementation Plan submitted 
by the Governor on September 14, 1992.
    (i) Incorporation by reference.
    (A) Arkansas Department of Pollution Control and Ecology (ADPC&E) 
Minute Order No. 92-55 passed July 24, 1992.
    (B) ADPC&E Regulation #19, ``Compilation of Regulations of the 
Arkansas State Implementation Plan for Air Pollution Control,'' except 
Section 19.8, as adopted by the Arkansas Commission on Pollution 
Control and Ecology on July 24, 1992, effective August 30, 1992.
    (ii) Additional materials. None.
    3. Section 52.181 is amended by revising paragraph (a) to read as 
follows:


Sec. 52.181  Significant deterioration of air quality.

    (a) The plan submitted by the Governor of Arkansas on April 23, 
1981 (as adopted by the Arkansas Commission on Pollution Control and 
Ecology (ACPCE) on April 10, 1981), June 3, 1988 (as revised and 
adopted by the ACPCE on March 25, 1988), and June 19, 1990 (as revised 
and adopted by the ACPCE on May 25, 1990), Prevention of Significant 
Deterioration (PSD) Supplement Arkansas Plan of Implementation for Air 
Pollution Control, as recodified in Regulation #19, Section 19.9, 
Prevention of Significant Deterioration Supplement, submitted by the 
Governor on September 14, 1992 (as adopted by the ACPCE on July 24, 
1992), is approved as meeting the requirements of part C of the Clean 
Air Act for preventing significant deterioration of air quality.
* * * * *
[FR Doc. 98-9554 Filed 4-9-98; 8:45 am]
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