[Federal Register Volume 68, Number 56 (Monday, March 24, 2003)]
[Rules and Regulations]
[Pages 14151-14154]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-6817]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AZ 078-0068; FRL-7460-9]


Revision 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 a limited approval and limited disapproval 
of a revision to the Arizona Department of Environmental Quality (ADEQ) 
portion of the Arizona State Implementation Plan (SIP). This action was 
proposed in the Federal Register on October 11, 2002 and concerns 
definitions, volatile organic compound (VOC) emissions from dry 
cleaning plants, VOC emissions from spray painting operations, and 
particulate matter (PM-10) emissions from mobile sources. Under 
authority of the Clean Air Act as amended in 1990 (CAA or the Act), 
this action directs Arizona to correct the deficiencies in the 
submitted rules.
    EPA is also finalizing a full approval of a revision to the Arizona 
Department of Environmental Quality (ADEQ) portion of the Arizona SIP. 
This action was proposed in the Federal Register on October 11, 2002 
and concerns VOC emissions from petroleum storage vessels and PM-10 
emissions from mobile sources.

EFFECTIVE DATE: Today's final rule is effective on April 23, 2003.

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 a copy of the submitted rule revisions at the following 
locations:

Environmental Protection Agency, Region IX, 75 Hawthorne Street, San 
Francisco, CA 94105.
Environmental Protection Agency, Air Docket (6102), Ariel Rios 
Building, 1200 Pennsylvania Avenue, NW., Washington DC 20460.
Arizona Department of Environmental Quality, 1110 West Washington 
Street, Phoenix, AZ 85007.


[[Page 14152]]


    A copy of the rule may also be available via the Internet at http://www.sosaz.com/public_services/Title 18/18-02.htm. Please be advised 
that this is not an EPA Web site and may not contain the same version 
of the rule that was submitted to EPA.

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.

I. Proposed Action

    On October 11, 2002 (67 FR 63354), EPA published a notice of 
proposed rulemaking (NPRM) proposing 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              Rule title            Adopted     Submitted
----------------------------------------------------------------------------------------------------------------
ADEQ...............................  R18-2-701              Definitions...............     11/15/93     07/15/98
ADEQ...............................  R18-2-725              Standards of Performance       11/15/93     07/15/98
                                                             for Existing Dry Cleaning
                                                             Plants.
ADEQ...............................  R18-2-727              Standards of Performance       11/15/93     07/15/98
                                                             for Spray Painting
                                                             Operations.
ADEQ...............................  R18-2-801              Classification of Mobile       11/15/93     07/15/98
                                                             Sources.
ADEQ...............................  R18-2-802              Off-Road Machinery........     11/15/93     07/15/98
----------------------------------------------------------------------------------------------------------------

    A summary of the deficiencies identified in these rules follows. 
Rule R18-2-701 has the following deficiencies:
    [sbull] ``Calcine'' should not be limited to only lime plants.
    [sbull] ``Process Weight'' should be eliminated, because it has no 
meaning unless it is given for a specific time period.
    [sbull] ``Process Weight Rate'' should be defined in the rule and 
not be based on Rule R18-2-702, which is not in the SIP.
    Rule R18-2-725 has the following deficiencies:
    [sbull] The enforceability is limited, because there are no 
monitoring and recordkeeping requirements.
    [sbull] The enforceability is limited, because there is no test 
method given for the efficiency of recovery of solvent emissions.
    Rule R18-2-727 has the following deficiencies:
    [sbull] The enforceability is limited, because there are no 
monitoring and recordkeeping requirements.
    [sbull] The enforceability is limited, because there is no test 
method given for the efficiency of recovery of overspray.
    Rules R18-2-801 and R18-2-802 have the following deficiencies:
    [sbull] The rules should be restricted to apply to used or in-use 
nonroad engines and not to new nonroad engines. Section 209(e) of the 
CAA prohibits states from adopting or attempting to enforce any 
standard relating to the control of emissions from (A) new engines 
which are used in construction equipment or vehicles or used in farm 
equipment or vehicles and which are smaller than 175 horsepower and (B) 
new (or remanufactered) locomotives or new (or remanufactered) engines 
which are used in locomotives. States are not precluded under section 
209(e) from regulating the use and operation of nonroad engines, 
including regulating daily mass emission limits (such as through an 
opacity standard), once the engine is no longer new, according to 40 
CFR part 89, subpart A, appendix A.
    [sbull] The rules should exclude from applicability locomotives or 
engines which are used in locomotives. Locomotives are required to be 
in compliance with federal emission standards throughout their useful 
life.
    [sbull] The rules should exempt nonroad engines from any potential 
requirement to retrofit in order to meet the opacity standard unless 
California has an identical retrofitting requirement. States are 
precluded from requiring retrofitting of used nonroad engines to meet 
emission standards, except that States may adopt and enforce 
retrofitting requirements identical to California retrofitting 
requirements which have been authorized by EPA, according to 40 CFR 
part 89, subpart A, appendix A.
    At the same time, EPA published a notice of proposed rulemaking 
(NPRM) proposing 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              Rule title            Adopted     Submitted
----------------------------------------------------------------------------------------------------------------
ADEQ...............................  R18-2-710              Standards of Performance       11/15/93     07/15/98
                                                             for Existing Vessels for
                                                             Petroleum Liquids.
ADEQ...............................  R18-2-803              Heater-Planer Units.......     11/15/93     07/15/98
ADEQ...............................  R18-2-804              Roadway and Site cleaning      11/15/93     07/15/98
                                                             Machinery.
ADEQ...............................  R18-2-805              Asphalt or Tar Kettles....     11/15/93     07/15/98
----------------------------------------------------------------------------------------------------------------

    The NPRM 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 did not receive any comments.

III. EPA Action

    No comments were submitted that change our assessment of the rules 
as described in our proposed action. Therefore, as authorized in 
sections 110(k)(3) and 301(a) of the CAA, EPA is finalizing a limited 
approval of submitted Rules 701, 725, 727, 801, and 802. This action 
incorporates the submitted rules 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 rules. Sanctions will not be imposed under section 179 of the CAA 
according to 40 CFR 52.31, because the rules are not required 
submittals. Note that the submitted rules have been adopted by the 
ADEQ, and EPA's final limited

[[Page 14153]]

disapproval does not prevent the local agency from enforcing them.
    As authorized in sections 110(k)(3) and 301(a) of the CAA, EPA is 
also finalizing a full approval of submitted Rules 710, 803, 804, and 
805. This action incorporates the submitted rules 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. 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).

C. 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 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.
    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.

D. 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.

E. 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.

F. 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.

G. 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.

[[Page 14154]]

H. 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.

I. Congressional Review Act

    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). This rule will be effective April 23, 2003.

J. 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 May 23, 2003. 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, Incorporation by 
reference, Intergovernmental relations, Ozone, Particulate matter, 
Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: February 19, 2003.
Laura Yoshii,
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)(110) to read 
as follows:


Sec.  52.120  Identification of plan.

* * * * *
    (c) * * *
    (110) New and amended regulations were submitted on July 15, 1998, 
by the Governor's designee.
    (i) Incorporation by reference.
    (A) Arizona Department of Environmental Quality.
    (1) Rules R18-2-701, R18-2-710, R18-2-725, R18-2-727, R18-2-801, 
R18-2-802, R18-2-803, R18-2-804, and R18-2-805, amended on November 15, 
1993.
* * * * *
[FR Doc. 03-6817 Filed 3-21-03; 8:45 am]
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