[Federal Register Volume 66, Number 92 (Friday, May 11, 2001)]
[Proposed Rules]
[Pages 24074-24075]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-11916]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 66, No. 92 / Friday, May 11, 2001 / Proposed 
Rules  

[[Page 24074]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AZ103-0037; FRL-6978-1]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve revisions to the Arizona 
Department of Environmental Quality's portion of the Arizona State 
Implementation Plan (SIP). These revisions concern the establishment of 
affirmative defenses for excess emissions due to malfunctions, 
startups, and shutdowns, and reporting requirements for excess 
emissions. We are proposing to approve the rules 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 June 11, 2001.

ADDRESSES: Mail comments to Ginger Vagenas, Permits Office (AIR-3), 
U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, 
San Francisco, CA 94105-3901.
    You can inspect copies of the submitted SIP revisions and EPA's 
technical support document (TSD) at our Region IX office during normal 
business hours. You may also see copies of the submitted SIP revisions 
at the following locations:

Arizona Department of Environmental Quality, Air Quality Division, 3033 
North Central Avenue, Phoenix, AZ 85012.

FOR FURTHER INFORMATION CONTACT: Ginger Vagenas, Permits Office (AIR-
3), U.S. Environmental Protection Agency, Region IX, (415) 744-1252.

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 is the purpose of the submitted rule revisions?
II. EPA's Evaluation and Action
    A. How is EPA evaluating the rules?
    B. Do the rules meet the evaluation criteria?
    C. Public comment and final action.
III. Administrative Requirements

I. The State's Submittal

A. What Rules Did the State Submit?

    This proposal addresses two rules that were adopted on February 15, 
2001 and submitted on March 26, 2001 by Arizona Department of 
Environmental Quality: R18-2-310, Affirmative Defenses for Excess 
Emissions Due to Malfunctions, Startup, and Shutdown; and R18-2-310.01, 
Reporting Requirements.
    On May 1, 2001, this rule submittal was found to meet the 
completeness criteria in 40 CFR part 51 appendix V.

B. Are There Other Versions of These Rules?

    There are no previous versions of Rules 310 or 310.01 in the SIP, 
although the Arizona Department of Health Services submitted an earlier 
version of these rules (R9-3-309) to us on October 24, 1985. We 
proposed to approve Rule R9-3-309 into the SIP on September 22, 1986, 
but did not take final action.

C. What Is the Purpose of the Submitted Rules?

    Emissions in excess of the limits that apply to a source are 
violations of the applicable emission limitation. State agencies must 
always retain the option to enforce such violations, however, under 
certain circumstances, an affirmative defense to enforcement 
proceedings based on violations of emission limits can be included in a 
SIP. Rule 310 establishes an affirmative defense to civil or 
administrative enforcement proceedings, other than a judicial action 
seeking injunctive relief, providing certain criteria have been met. 
Rule 310.01 sets out reporting requirements that the source must meet 
if it has emissions in excess of its limits.

II. EPA's Evaluation and Action

How Is EPA Evaluating the Rules?

    In determining the approvability of a rule, EPA must evaluate the 
rule for consistency with the requirements of the Clean Air Act (CAA) 
and EPA regulations, as found in section 110 and part D of the CAA and 
40 CFR part 51 (Requirements for Preparation, Adoption and Submittal of 
Implementation Plans). EPA's interpretation of these requirements 
appears in EPA policy guidance documents. EPA policy on excess 
emissions occurring during startup and shutdown is contained in a 
memorandum dated September 20, 1999, entitled ``State Implementation 
Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, 
and Shutdown'' (the Excess Emissions Policy). In general, the guidance 
document cited above, as well as other relevant and applicable guidance 
documents, have been set forth to ensure that submitted rules meet 
Federal requirements, are fully enforceable, and strengthen or maintain 
the SIP.

B. Do the Rules Meet the Evaluation Criteria?

    We believe these rules are consistent with the Clean Air Act and 
the relevant policy and guidance regarding excess emissions. Under the 
CAA, EPA has a fundamental responsibility to ensure that SIPs provide 
for attainment and maintenance of the national ambient air quality 
standards and protection (NAAQS) of prevention of significant 
deterioration (PSD) increments. See, e.g., sections 110(a) and (l) of 
the CAA, 42 U.S.C. sections 7410(a) and (l) (EPA cannot approve a SIP 
revision that would interfere with attainment of a NAAQS or any other 
requirement of the CAA).\1\ Accordingly, EPA believes that an 
acceptable affirmative defense provision may only apply to actions for 
penalties, but not to actions for injunctive relief. This restriction 
ensures that both state and federal authorities remain able to protect 
air quality standards and PSD increments. Rule 310 includes the 
following provisions:
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    \1\ Pursuant to Section 110(1), EPA may not approve a SIP 
revision if ``the revision would interfere with any applicable 
requirement concerning attainment and reasonable further progress, 
or any other applicable requirement of this chapter.'' See also CAA 
section 193, 42 U.S.C. 7575, and the definitions of ``emission 
limitation'' and ``emission standard'' contained in CAA section 
302(k), 42 U.S.C. section 7602(k).

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[[Page 24075]]

    1. All periods of excess emissions are treated as violations of the 
emission limitation.
    2. The rule provides an affirmative defense to actions for 
penalties brought for excess emissions that arise during certain 
malfunction, startup, and shutdown episodes. There is no affirmative 
defense to actions for injunctive relief.
    3. The rule includes criteria consistent with EPA's excess 
emissions policy that restrict the availability of affirmative defenses 
to malfunctions that are sudden, unavoidable, and unpredictable, and to 
excess emissions during startup and shutdown that could not have been 
avoided through careful planning and design. In all cases, all possible 
steps must have been taken to minimize excess emissions.
    4. An affirmative defense is not available if during the period of 
excess emissions, there was an exceedence of the relevant ambient air 
quality standard that could be attributed to the emitting source.
    5. The defendant has the burden of proof of demonstrating it has 
met the criteria set out in Rule 310.
    Rule 310.01 requires that the owner or operator of a source must 
notify ADEQ within 24 hours of learning that the source has emitted 
pollutants in excess of its limits. A detailed written report must be 
submitted within 72 hours of the initial notification. In order to 
qualify for an affirmative defense under Rule 310, the source must 
comply with the requirements of Rule 310.01.

C. Public comment and final action.

    Because EPA believes the submitted rule fulfills all relevant 
requirements, we are proposing to fully approve it as described in 
section 110(k)(3) of the Act. We will accept comments from the public 
on this proposal for the next 30 days. Unless we receive convincing new 
information during the comment period, we intend to publish a final 
approval action that will incorporate this rule into the federally 
enforceable SIP.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revisions to any state implementation plan. 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.

III. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed action is not a ``significant regulatory action'' and 
therefore is not subject to review by the Office of Management and 
Budget. This proposed action merely approves state law as meeting 
federal requirements and imposes no additional requirements beyond 
those imposed by state law. Accordingly, the Administrator certifies 
that this proposed rule will not have a significant economic impact on 
a substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-
existing requirements under state law and does not impose any 
additional enforceable duty beyond that required by state law, it does 
not contain any unfunded mandate or significantly or uniquely affect 
small governments, as described in the Unfunded Mandates Reform Act of 
1995 (Public Law 104-4). This rule also does not have a substantial 
direct effect on one or more Indian tribes, on the relationship between 
the Federal Government and Indian tribes, or on the distribution of 
power and responsibilities between the Federal Government and Indian 
tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 
2000), nor will it have substantial direct effects on the States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government, as specified in Executive Order 13132 (64 FR 43255, 
August 10, 1999), 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. This proposed rule also is not subject to Executive Order 13045 
(62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 
of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing 
this proposed rule, EPA has taken the necessary steps to eliminate 
drafting errors and ambiguity, minimize potential litigation, and 
provide a clear legal standard for affected conduct. EPA has complied 
with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining 
the takings implications of the rule in accordance with the ``Attorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings'' issued under the executive order. 
This proposed 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.).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Intergovernmental relations, Ozone, Reporting and recordkeeping 
requirements, Volatile organic compound.

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

    Dated: May 4, 2001.
Michael Schultz,
Acting Regional Administrator, Region IX.
[FR Doc. 01-11916 Filed 5-10-01; 8:45 am]
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