[Federal Register Volume 67, Number 166 (Tuesday, August 27, 2002)]
[Rules and Regulations]
[Pages 54957-54959]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-21663]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AZ 111-0050a; FRL-7261-7]


Revision to the Arizona State Implementation Plan, Maricopa 
County Environmental Services Department

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve a revision to the 
Maricopa County Environmental Services Department (MCESD) portion of 
the Arizona State Implementation Plan (SIP). Under authority of the 
Clean Air Act as amended in 1990 (CAA or the Act), we are approving a 
local rule that regulates excess emissions from malfunctions, startups, 
and shutdowns.

DATES: This rule is effective on October 28, 2002, without further 
notice, unless EPA receives adverse comments by September 26, 2002. If 
we receive such comment, we will publish a timely withdrawal in the 
Federal Register to notify the public that this rule will not take 
effect.

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

Environmental Protection Agency, Air Docket (6102), Ariel Rios 
Building, 1200 Pennsylvania Avenue, NW., Washington D.C. 20460.
Arizona Department of Environmental Quality, 1110 West Washington 
Street, Phoenix, AZ 85007.
Maricopa County Environmental Services Department, Air Quality 
Division, 1001 North central Avenue, Suite 201, Phoenix, AZ 85004.

    A courtesy copy of the rule may be available via the Internet at 
http://www.maricopa.gov/envsvc/air/ruledesc.asp. However, this version 
of the rule may be different than the version submitted to EPA for 
approval. Readers are cautioned to verify that the adoption date of the 
rule listed is the same as the rule submitted to EPA for approval. The 
official submittal is only available at the agency addresses listed 
above.

FOR FURTHER INFORMATION CONTACT: Al Petersen, Rulemaking Office (AIR-
4), U.S. Environmental Protection Agency, Region IX; (415) 947-4118.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to EPA.

Table of Contents

I. The State's Submittal
    A. What Rule Did the State Submit?
    B. Are There Other Versions of This Rule?
    C. What Is the Purpose of the Submitted Rule?
II. EPA's Evaluation and Action
    A. How Is EPA Evaluating the Rule?
    B. Does the Rule Meet the Evaluation Criteria?
    C. Public Comment and Final Action
III. Background Information
    A. Why Was This Rule Submitted?
IV. Administrative Requirements

I. The State's Submittal

A. What Rule Did the State Submit?

    Table 1 lists the rule we are approving with the dates that it was 
adopted by the local air agency and submitted by the Arizona Department 
of Environmental Quality.

                                            Table 1.--Submitted Rules
----------------------------------------------------------------------------------------------------------------
            Local agency               Rule No.             Rule title              Revised         Submitted
----------------------------------------------------------------------------------------------------------------
MCESD..............................          140   Excess Emissions...........        09/05/01         02/22/02
----------------------------------------------------------------------------------------------------------------

    On April 12, 2002 this rule submittal was found to meet the 
completeness criteria in 40 CFR Part 51 Appendix V, which must be met 
before formal EPA review.

B. Are There Other Versions of This Rule?

    There is no previous version of Rule 140 in the SIP.

C. What Is the Purpose of the Submitted Rule?

    The purpose of Rule 140 is to provide an owner and/or operator of a 
source who has been charged with a violation for excess emissions with 
an affirmative defense to a civil or administrative enforcement 
penalty. To qualify for the limited affirmative defense to a penalty 
action, the source must demonstrate compliance with listed criteria and 
reporting requirements set forth in Rule 140. Moreover, the affirmative 
defense does not apply to a SIP provision required by federally 
promulgated performance standards or emission limits, such as new 
source performance standards (NSPS) and national emission standards for 
hazardous air pollutants (NESHAPS). The defense also does not apply to 
violations in areas where a single source has the potential to cause an 
exceedence of the National Ambient Air Quality Standards (NAAQS) or

[[Page 54958]]

Prevention of Significant Deterioration (PSD) increments. The TSD has 
more information about this rule.

II. EPA's Evaluation and Action

A. How Is EPA Evaluating the Rule?

    This rule contains administrative provisions and standards that 
apply to emission controls found in other local agency requirements. In 
combination with those other requirements, this rule must be 
enforceable (see section 110(a) of the CAA) and must not relax existing 
requirements (see sections 110(l) and 193). EPA policy that we used to 
define specific enforceability requirements includes:
     State Implementation Plans: Policy Regarding Excess 
Emissions during Malfunctions, Startup, and Shutdown, EPA Memorandum 
from Steven Herman and Robert Perciasepe to Regional Administrators, 
Regions I-X (September 20, 1999).
     Issues Relating to VOC Regulation Cutpoints, Deficiencies, 
and Deviations; Clarification to Appendix D, November 24, 1987 Federal 
Register Notice, (Blue Book), notice of availability published in the 
May 25, 1988 Federal Register.

B. Does the Rule Meet the Evaluation Criteria?

    Rule 140 excludes injunctive relief, federally promulgated emission 
standards or limitations, and violations in areas with single sources 
have the potential to exceed the NAAQS from the rule's affirmative 
defense to enforcement penalties. Rule 140 excludes any violation of 
standards and limitations included in a permit to meet requirements for 
pollutant significance levels in adjacent nonattainment areas where 
primary or secondary ambient air quality standards are being violated. 
These exclusions assure that Rule 140 will not interfere with the NAAQS 
and PSD increments, as required by sections 110(a) and (l) of the CAA.
    We believe Rule 140 is consistent with the relevant policy and 
guidance regarding enforceability, SIP relaxations, and EPA's policy 
regarding excess emissions. The TSD has more information on our 
evaluation.

C. Public Comment and Final Action

    As authorized in section 110(k)(3) of the CAA, EPA is fully 
approving the submitted rule because we believe it fulfills all 
relevant requirements. We do not think anyone will object to this 
approval, so we are finalizing it without proposing it in advance. 
However, in the Proposed Rules section of this Federal Register, we are 
simultaneously proposing approval of the same submitted rule. If we 
receive adverse comments by September 26, 2002, we will publish a 
timely withdrawal in the Federal Register to notify the public that the 
direct final approval will not take effect and we will address the 
comments in a subsequent final action based on the proposal. If we do 
not receive timely adverse comments, the direct final approval will be 
effective without further notice on October 28, 2002. This will 
incorporate this rule into the federally enforceable SIP.

III. Background Information

A. Why Was This Rule Submitted?

    Section 110(a) of the CAA requires states to submit regulations 
that control volatile organic compounds, oxides of nitrogen, 
particulate matter, and other air pollutants which harm human health 
and the environment. This rule was developed as part of the local 
agency's program to control these pollutants.

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 13211, 
``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 (Pub. L. 104-4).
    This rule also does not have tribal implications because it will 
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). This action also does not have Federalism 
implications because it does 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 (64 
FR 43255, August 10, 1999). This action 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 CAA. 
This rule also is not subject to Executive Order 13045, ``Protection of 
Children from Environmental Health Risks and Safety Risks'' (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 CAA. 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 CAA. 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. 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. 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).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by October 28, 2002. 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

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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. Section 307(b)(2).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Reporting and recordkeeping 
requirements.

    Dated: July 25, 2002.
Keith Takata,
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)(106) to read 
as follows:


Sec. 52.120  Identification of plan.

* * * * *
    (c) * * *
    (106) Amended rule for the following agency was submitted on 
February 22, 2002, by the governor's designee.
    (i) Incorporation by reference.
    (A) Maricopa County Environmental Services Department.
    (1) Rule 140, revised on September 5, 2001.
* * * * *
[FR Doc. 02-21663 Filed 8-26-02; 8:45 am]
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