[Federal Register Volume 66, Number 181 (Tuesday, September 18, 2001)]
[Rules and Regulations]
[Pages 48087-48089]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-23001]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AZ 103-0044; FRL-7051-4]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing approval of revisions to the Arizona 
Department of Environmental Quality (ADEQ) portion of the Arizona State 
Implementation Plan (SIP). These revisions were proposed in the Federal 
Register on May 11, 2001 and concern affirmative defenses for excess 
emissions from sources regulated under the Clean Air Act as amended in 
1990 (CAA or the Act).

EFFECTIVE DATE: This rule is effective on October 18, 2001.

ADDRESSES: You can inspect copies of the administrative record for this 
action at EPA's Region IX office during normal business hours. You can 
inspect copies of the submitted SIP revisions at the following 
locations:

Environmental Protection Agency, Region IX, 75 Hawthorne Street, San 
Francisco, CA 94105-3901.
Environmental Protection Agency, Air Docket (6102), Ariel Rios 
Building, 1200 Pennsylvania Avenue, NW., Washington DC 20460.
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.

I. Proposed Action

    On May 11, 2001 (66 FR 24074), EPA proposed to approve the 
following rules into the Arizona SIP: R18-2-310, Affirmative Defenses 
for Excess Emissions Due to Malfunctions, Startup, and Shutdown; and 
R18-2-310.01, Reporting Requirements.

[[Page 48088]]

    We proposed to approve these rules because we determined that they 
complied with the relevant CAA requirements and EPA's September 20, 
1999 policy memo regarding excess emissions (State Implementation 
Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, 
and Shutdown). Our proposed action and technical support document 
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.
    1. Newman Porter, Lewis and Roca, LLP, representing the Arizona 
Mining Association; letter dated May 22, 2001 and received May 30, 
2001.
    2. Joy E. Herr Cardillo, Arizona Center for Law in the Public 
Interest; letter dated June 11, 2001 and received June 11, 2001.
    The comments and our responses are summarized below. Our response 
to comments document contains a more detailed analysis.
    The Arizona Mining Association supports EPA's proposal to approve 
R18-2-310 and 310.01 into the Arizona state implementation plan. The 
Arizona Center for Law in the Public Interest (ACLPI) acknowledged that 
the rule generally tracks EPA policy, but pointed out several cases 
where ADEQ does not incorporate verbatim into Rule R18-2-310 the 
criteria set out in EPA's excess emissions policy. For example, they 
noted that under EPA's policy a malfunction must be beyond the control 
of the operator to qualify for an affirmative defense, whereas Rule 310 
requires that it must be beyond the reasonable control of the operator. 
(Emphasis added) ACLPI contends that, because of this and other 
deviations from EPA's excess emissions policy, Rule 310 is 
significantly ``less stringent'' than the EPA policy.
    The excess emissions policy does not constitute federal rulemaking. 
Rather, EPA issues policies to provide EPA staff, state regulators and 
the public with EPA's general interpretation of the Act's requirements. 
Unlike a regulation, EPA's policy is not binding and each SIP 
submission must be reviewed on its own merits.
    The commenter notes several instances in which the Arizona rules do 
not include the conditions from EPA policy verbatim. However, the 
commenter does not expand on why the Arizona provisions are 
inconsistent with the CAA, instead only making vague allegations that 
the State rules are less stringent than the sample language in EPA's 
policy. EPA disagrees with the commenter that the variations in 
language used by Arizona modify the intent of EPA's policy. We believe 
that Rules 310 and 310.01 meet the goals of the policy, are consistent 
with the Act, and will not interfere with attainment and maintenance of 
the national ambient air quality standards and are therefore 
approvable.

III. EPA Action

    No comments were submitted that change our assessment that the 
submitted rules comply with the relevant CAA requirements. Therefore, 
as authorized in section 110(k)(3) of the Act, EPA is fully approving 
these rules into the Arizona SIP.

IV. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 32111, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (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 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 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 rule does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the

[[Page 48089]]

appropriate circuit by November 19, 2001. 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, Hydrocarbons, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
dioxide, Ozone, Reporting and recordkeeping requirements, Volatile 
organic compounds.

    Dated: August 30, 2001.
Sally Seymour,
Acting 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 paragraph (c)(97) to read as 
follows:


Sec. 52.120  Identification of plan.

* * * * *
    (c) * * *
    (97) New and amended rules for the Arizona Department of 
Environmental Quality were submitted on March 26, 2001, by the 
Governor's designee.
    (i) Incorporation by reference.
    (A) Rules R18-2-310 and R18-2-310.01 effective on February 15, 
2001.
[FR Doc. 01-23001 Filed 9-17-01; 8:45 am]
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