[Federal Register Volume 69, Number 41 (Tuesday, March 2, 2004)]
[Proposed Rules]
[Pages 9776-9780]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-4625]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX-162-1-7598; FRL-7629-4]


Approval and Promulgation of Implementation Plans; Texas; Excess 
Emissions During Startup, Shutdown and Malfunction Activities; and 
Notice of Resolution of Deficiency for Title V Permit Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing to approve rule revisions into the Texas 
State Implementation Plan (SIP). In this rulemaking, we are proposing 
two separate actions. First, we are proposing to approve two SIP 
revisions submitted on September 12, 2002, and January 5, 2004, by the 
State of Texas. These revisions pertain to Texas' excess emissions 
rule, 30 TAC Chapter 101, General Air Quality Rules, specifically, the 
reporting and recordkeeping requirements, and enforcement actions for 
excess emissions during startup, shutdown, and malfunction (SSM) 
activities. Second, we are proposing to find that Texas has corrected 
all deficiencies identified in our January 7, 2002, Notice of 
Deficiency (NOD). See section 1 of this document for more information 
concerning our action on the NOD. The EPA is proposing approval of 
these two separate actions as meeting the requirements of the Federal 
Clean Air Act (the Act).

DATES: Comments must be received on or before April 1, 2004.

ADDRESSES: Comments may be submitted by mail to: Mr. Thomas Diggs (6PD-
L), Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas 
75202-2733. Comments may also be submitted electronically, by 
facsimile, or through hand delivery/courier. Follow the detailed 
instructions as provided in the General Information section of this 
document. Copies of the State's request and other supporting 
information used in developing this action are available for inspection 
during normal business hours at the following locations:
    Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 
700, Dallas, Texas 75202-2733.
    Texas Commission on Environmental Quality (TCEQ), Office of Air 
Quality,

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12124 Park 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Mr. Alan Shar, for General Rule 101 
questions, of the Air Planning Section (6PD-L) at (214) 665-6691, or 
[email protected]. Mr. Stanley M. Spruiell, for NOD questions, of the 
Air Permits Section (6PD-R), EPA Region 6, 1445 Ross Avenue, Dallas, 
Texas 75202-2733 at (214) 665-7212, or [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

1. What Are We Proposing To Approve?
    The 30 TAC, General Air Quality Rule 101
    The January 7, 2002, NOD
2. Why Are We Approving This Rule?
3. What Documents Did We Use in the Evaluation of this Rule?
4. What Is a State Implementation Plan?
5. What Is The Federal Approval Process For a SIP?
6. What Does Federal Approval of a SIP Mean To Me?
7. What Areas in Texas Will The Proposed SIP Revision Affect?
    General Information
    Statutory and Executive Order Reviews

    Throughout this document ``we,'' ``us,'' and ``our'' mean EPA.

1. What Are We Proposing To Approve?

The 30 TAC, General Air Quality Rule 101

    On September 12, 2002, the Governor of Texas submitted rule 
revisions to 30 TAC, General Air Quality Rule 101, Subchapter A and 
Subchapter F, concerning the reporting and recordkeeping requirements 
and enforcement action for excess emissions during SSM activities. The 
September 12, 2002, submittal concerned amendments to Definitions 
(101.1), repeal of Upset Reporting and Recordkeeping Requirements 
(101.6), Maintenance, Startup and Shutdown Reporting, Recordkeeping, 
and Operational Requirements (101.7), Demonstrations (101.11), 
Temporary Exemptions During Drought Conditions (101.12), Petition for 
Variance (101.15), Effect of Acceptance of Variance or Permit (101.16), 
Transfers (101.17), and addition of new sections: Emissions Event 
Reporting and Recordkeeping Requirements (101.201), Scheduled 
Maintenance, Startup, and Shutdown Reporting and Recordkeeping 
Requirements (101.211), Operational Requirements (101.221), 
Demonstrations (101.222), Actions to Reduce Excessive Emissions 
(101.223), Temporary Exemptions During Drought Conditions (101.224), 
Petition for Variance (101.231), Effect of Acceptance of Variance or 
Permit (101.232), and Variance Transfers (101.233). See our Technical 
Support Document (TSD) for more details. Texas submitted the September 
12, 2002, rule revision as a result of adoption of Texas House Bill 
2912, sections 5.01 and 18.14, 77th Legislature, 2001. In a letter 
dated June 10, 2002, EPA submitted comments on those rule revisions to 
the State.
    On January 5, 2004, the TCEQ submitted additional rule revisions to 
30 TAC, General Air Quality Rule 101, Subchapter F, Division 3, 
sections 101.221-223.
    The January 5, 2004, rule revisions concerned Operational 
Requirements (101.221), Demonstrations (101.222), and Actions to Reduce 
Excessive Emissions (101.223). See our TSD for more details. The 
January 5, 2004, submittal establishes an affirmative defense to civil 
and administrative enforcement actions, other than actions for 
injunctive relief, for certain violations of emission limitations, 
provided specific criteria are met. The January 5, 2004, submittal 
makes clear that there is no automatic exemption from compliance with 
the emissions and opacity limitations during SSM activities and that 
the proposed amendments will not limit EPA or citizen authority to take 
enforcement action. Thus, determinations made by the State under 
section 101.222 will not bar enforcement actions for exceedances of 
emissions limitations brought by EPA or citizens under the Act.
    The January 5, 2004, submittal also contains ``sunset provisions'' 
in subsections 101.221(g), 101.222(h), and 101.223(e) of the rule. The 
sunset provisions state that the sections 101.221, 101.222, and 101.223 
will expire on June 30, 2005.

The January 7, 2002, NOD

    On January 7, 2002 (67 FR 732), we published an NOD for Texas' 
title V Operating Permit Program. We based the NOD upon our finding 
that several State requirements did not meet the minimum Federal 
requirements of 40 CFR part 70 and the Act. The TCEQ adopted rule 
revisions to resolve the deficiencies we identified in the NOD and 
submitted the changes to EPA as revisions to its title V Operating 
Permit Program on December 9, 2002. The December 9, 2002, submittal 
also included revisions to the Texas SIP concerning potential to emit 
requirements necessary for resolving the NOD.
    On July 9, 2003, we proposed to approve the revisions to the Texas 
title V Operating Permit Program and to find that, upon final SIP 
approval of sections 101.201, 101.211, 101.221, 101.222, and 101.223, 
the revisions satisfy Texas' requirement to correct the program 
deficiencies identified in the NOD (68 FR 40871).
    On December 17, 2003, the TCEQ adopted the changes to sections 
101.201, 101.211, 101.221, 101.222, and 101.223, reporting, 
recordkeeping and enforcement requirements for excess emissions during 
startup, shutdown, and malfunction activities, and submitted them to 
EPA for approval into the SIP on January 5, 2004.
    We also approved SIP revisions concerning potential to emit 
requirements identified in the NOD on November 14, 2003 (68 FR 64543). 
Today, we are proposing to approve sections 101.201, 101.211, 101.221, 
101.222, and 101.223 as revisions to the Texas SIP.
    We have reviewed the TCEQ's actions to resolve the shortcomings 
identified in the NOD, and we have proposed approval of all of the 
corrections. Based upon today's proposed approval of sections 101.201, 
101.211. 101.221, 101.222, 101.223; our July 9, 2003 proposed approval 
of revisions to the Texas title V program; and our November 14, 2003 
final SIP approval of potential to emit requirements in this rulemaking 
action, we are proposing to find those revisions satisfy all of Texas' 
requirements to correct the program deficiencies identified in our 
January 7, 2002, NOD.

2. Why Are We Approving This Rule?

    In this rulemaking action, we are proposing to approve the 
September 12, 2002, and January 5, 2004, submittals as revisions to the 
Texas SIP. These revisions primarily address violations of SIP 
requirements caused by periods of excess emissions due to SSM 
activities. Generally, since SIPs must provide for attainment and 
maintenance of the National Ambient Air Quality Standards (NAAQS), all 
periods of excess emissions must be considered violations. As a result, 
EPA cannot approve any SIP revisions that provide automatic exemptions 
for periods of excess emissions. In addition, excess emissions above 
applicable emission limitations in title V permits are deviations 
subject to title V reporting requirements.
    We are approving these revisions to the Texas SIP as consistent 
with the requirements of the Act and EPA's interpretation of those 
requirements as expressed in EPA Federal Register notices and policy 
documents, and because the revisions clarify: (a) That there is no 
automatic exemption from compliance with the emissions and opacity 
limitations, (b) that the

[[Page 9778]]

proposed amendments will not limit EPA or citizen authority to take 
enforcement action, and (c) that for each occurrence the source or 
operator has the burden of proof to demonstrate that emissions were not 
excessive, and the identified criteria outlined in the rule have been 
met.
    This rulemaking would temporarily adopt the affirmative defense 
clause of General Rule 101, Subchapter F, section 101.222, which states 
that certain emissions activities and opacity activities are subject to 
an affirmative defense to all claims in enforcement actions, other than 
claims for administrative technical orders or actions for injunctive 
relief, for which the source or operator proves all of the listed 
criteria. If approved into the SIP, the affirmative defense would be 
available until June 30, 2005, to a source or operator in an 
enforcement action seeking penalties brought by the State, EPA, or 
citizens. Determinations made by the State under section 101.222 will 
not bar EPA or citizen enforcement actions. We are proposing to find 
this revision consistent with EPA's interpretation of the Act as 
discussed in guidance, dated September 20, 1999, from Steven A. Herman, 
Assistant Administrator for Enforcement and Compliance Assurance, and 
Robert Perciasepe, Assistant Administrator for Air and Radiation, 
entitled ``State Implementation Plans: Policy Regarding Excess 
Emissions During Malfunctions, Startup, and Shutdown.'' This action is 
consistent with our recent reviews of affirmative defense clauses in 
other states, such as approvals of revisions to the Michigan, Arizona, 
Arkansas and other states' SIPs.
    As stated previously, the January 5, 2004, SIP submittal contains 
sunset provisions in sections 101.221, 101.222, and 101.223 of the 
rule. The sunset provisions state that three sections of the rule will 
expire on June 30, 2005. The EPA is required to ensure that SIP 
revisions fully comply with enforceability and other requirements of 
section 110 of the Act. The EPA has approved rules with sunset 
provisions or expiration dates only under very limited circumstances. 
We are here proposing to approve sections 101.221, 101.222, and 
101,223, which expire of their own terms on June 30, 2005, as requested 
by the State, because they strictly meet the requirements of section 
110(l) of the Act.
    Under EPA's interpretation of the Act, a SIP can provide an 
affirmative defense to certain actions for penalties brought for excess 
emissions that arise during SSM episodes, provided defined criteria are 
demonstrated by the source. However, EPA cannot approve an affirmative 
defense clause into a SIP that would undermine the fundamental 
requirement of attainment and maintenance of the NAAQS, or any other 
applicable requirement of the Act, including the State's enforcement 
authority or the effectiveness of a State's programs. As stated 
previously, we are proposing to find Texas' affirmative defense clause 
consistent with EPA's interpretation of the Act. We will consider the 
temporary effect of this rule in any future review of the State's 
attainment demonstrations or other rulemaking actions involving excess 
emissions during SSM activities. The EPA does not consider sunset 
provisions in SIP rulemakings under section 110(l) of the Act 
appropriate except in very narrow and limited circumstances.
    If the State fails to revise these temporary sections and EPA does 
not approve them into the Texas SIP on or before June 30, 2005, the 
affirmative defense clause will no longer exist in the Texas SIP. A 
source or operator could no longer assert an affirmative defense to 
Federal or citizen enforcement actions for violations which occur after 
the SIP provisions expire. The EPA considers all periods of excess 
emissions as violations of the applicable emissions limitation. 
However, under Section 113 of the Act, EPA has discretion to refrain 
from taking an enforcement action for excess emissions resulting from 
SSM activities, such as those caused by circumstances entirely beyond 
the control of the source or operator. Unless the pertinent sections of 
the State rule are revised and approved by EPA, after June 30, 2005, 
all emissions in excess of applicable emission limitations during SSM 
activities would be violations of the Texas SIP and subject to EPA or 
citizen enforcement.

3. What Documents Did We Use in the Evaluation of This Rule?

    The EPA's interpretation of the Act on excess emissions occurring 
during startup, shutdown or malfunction is set forth in the following 
documents: a memorandum dated September 28, 1982, from Kathleen M. 
Bennett, Assistant Administrator for Air, Noise, and Radiation, 
entitled ``Policy on Excess Emissions During Startup, Shutdown, 
Maintenance, and Malfunctions;'' EPA's clarification to the above 
policy memorandum dated February 15, 1983, from Kathleen M. Bennett, 
Assistant Administrator for Air, Noise, and Radiation; EPA's policy 
memorandum reaffirming and supplementing the above policy, dated 
September 20, 1999, from Steven A. Herman, Assistant Administrator for 
Enforcement and Compliance Assurance and Robert Perciasepe, Assistant 
Administrator for Air and Radiation, entitled ``State Implementation 
Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, 
and Shutdown;'' and EPA's final rule for Utah's sulfur dioxide control 
strategy (Kennecott Copper), 42 FR 21472 (April 27, 1977). The latest 
clarification of EPA's policy was issued on December 5, 2001. See the 
policy or clarification of policy at http://www.epa.gov/ttn/oarpg/t1pgm.html.
    To find the latest federally approved Texas SIP concerning excess 
emissions see 65 FR 70792 (November 28, 2000).

4. What Is a State Implementation Plan?

    Section 110 of the Act requires States to develop air pollution 
regulations and control strategies to ensure that state air quality 
meets the NAAQS that EPA has established. Under section 109 of the Act, 
EPA established the NAAQS to protect public health. The NAAQS address 6 
criteria pollutants. These criteria pollutants are: carbon monoxide, 
nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide. 
Each State must submit these regulations and control strategies to us 
for approval and incorporation into the federally enforceable SIP. Each 
State has a SIP designed to protect air quality. These SIPs can be 
extensive, containing State regulations or other enforceable documents 
and supporting information such as emission inventories, monitoring 
networks, and modeling demonstrations.

5. What Is the Federal Approval Process for a SIP?

    When a State wants to incorporate its regulations into the 
federally enforceable SIP, the State must formally adopt the 
regulations and control strategies consistent with State and Federal 
requirements. This process includes a public notice, a public hearing, 
a public comment period, and a formal adoption by a State-authorized 
rulemaking body.
    Once a State adopts a rule, regulation, or control strategy, the 
State may submit the adopted provisions to us and request that we 
include these provisions in the federally enforceable SIP. We must then 
decide on an appropriate Federal action, provide public notice on this 
action, and seek additional public comment regarding this action. If we 
receive adverse comments, we must address them prior to a final action.

[[Page 9779]]

    Under section 110 of the Act, those State regulations and 
supporting information become a part of the federally approved SIP upon 
our approval. You can find records of these SIP actions in the CFR at 
title 40, part 52, entitled ``Approval and Promulgation of 
Implementation Plans.'' The actual state regulations that we approved 
are not reproduced in their entirety in the CFR but are ``incorporated 
by reference,'' which means that we have approved a given State 
regulation with a specific effective date.

6. What Does Federal Approval of a SIP Mean to Me?

    A State may enforce State regulations before and after we 
incorporate those regulations into a federally approved SIP. After we 
incorporate those regulations into a federally approved SIP, both EPA 
and the public may also take enforcement action against violators of 
these regulations.

7. What Areas in Texas Will the Proposed SIP Revision Affect?

    The proposed SIP revision will affect all sources of air emissions 
operating within the State of Texas.

General Information

A. What Is the Public Rulemaking File?

    The EPA is committed to ensuring public access to the information 
used to inform the Agency's decisions regarding the environment and 
human health and to ensuring that the public has an opportunity to 
participate in the Agency's decision-making process. The official 
public rulemaking file consists of the documents specifically 
referenced in a particular agency action, any public comments received, 
and other information related to the action. The public rulemaking file 
does not include Confidential Business Information (CBI) or other 
information for which disclosure is restricted by statute, although 
such information is a part of the Agency's official administrative 
record for the action.

B. How Can I Get Copies of This Document and Other Related Information?

    1. An official public rulemaking file is available for inspection 
at the Regional Office. The Regional Office has established an official 
public rulemaking file for this action under Identification Number (ID 
No.) TX-162-1-7598. The public rulemaking file is available for viewing 
at the Environmental Protection Agency, 1445 Ross Avenue, Suite 700, 
Dallas, Texas 75202-2733. Contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section to schedule your inspection. If possible, 
schedule the appointment two working days in advance of your visit. 
Official hours of business for the Regional Office are Monday through 
Friday, 8:30 a.m. to 4 p.m. excluding Federal holidays. Copies of any 
State submittals and EPA's technical support document are also 
available for public inspection at the State Air Agency during official 
business by appointment:
    Texas Commission on Environmental Quality, Office of Air Quality, 
12124 Park 35 Circle, Austin, Texas 78753.
    2. You may access this Federal Register document electronically 
through the Regulations.gov Web site located at http://www.regulations.gov. The Regulations.gov Web site is the central online 
rulemaking portal of the United States government and is a public 
service to increase participation in the government's regulatory 
activities by offering a central point for submitting comments on 
regulations.

C. How and To Whom Do I Submit Comments?

    You may submit comments electronically, by mail, through hand 
delivery/courier or by facsimile. Instructions for submitting comments 
by each method are discussed below. To ensure proper receipt by EPA, 
identify the appropriate ID No. in the subject line on the first page 
of your comment. Please ensure that your comments are submitted within 
the specified comment period. Comments received after the close of the 
comment period will be marked ``late.'' The EPA is not required to 
consider these late comments. If you wish to submit CBI or information 
that is otherwise protected by statute, please follow the instructions 
in section D below.
    1. Electronically. To submit comments electronically (via e-mail, 
Regulations.gov, or on disk or CD-ROM), EPA recommends that you include 
your name, mailing address, and an e-mail address or other contact 
information in the body of your comment. Also include this contact 
information on the outside of any disk or CD-ROM you submit, and in any 
cover letter accompanying the disk or CD-ROM. This ensures that you can 
be identified as the submitter of the comment and allows EPA to contact 
you in case EPA cannot read your comment due to technical difficulties 
or needs further information on the substance of your comment. The 
EPA's policy is that EPA will not edit your comments. Any identifying 
or contact information provided in the body of a comment will be 
included as part of the comment that is placed in the public rulemaking 
file and may be made available in EPA's public Web sites. If EPA cannot 
read your comment due to technical difficulties and cannot contact you 
for clarification, EPA may not be able to consider your comment.
    i. E-mail. Comments may be submitted by electronic mail (e-mail) to 
[email protected], Attention ``Public comment on ID No. TX-162-1-
7598.'' In contrast to the Regulations.gov Web site, EPA's e-mail 
system is not an ``anonymous'' system. If you send an e-mail comment 
directly to EPA, your e-mail address will be automatically captured and 
included as part of the comment that is placed in the official public 
rulemaking file.
    ii. Regulations.gov. Comments may be submitted electronically at 
the Regulations.gov Web site, the central online rulemaking portal of 
the United States government. Every effort is made to ensure that the 
Web site includes all rule and proposed rule notices that are currently 
open for public comment. You may access the Regulations.gov Web site at 
http://www.regulations.gov. Select ``Environmental Protection Agency'' 
at the top of the page and click on the ``Go'' button. The list of 
current EPA actions available for comment will be displayed. Select the 
appropriate action and follow the online instructions for submitting 
comments. Unlike EPA's e-mail system, the Regulations.gov Web site is 
an ``anonymous'' system, which means that any personal information, e-
mail address, or other contact information will not be collected unless 
it is provided in the text of the comment. See the Privacy Notice at 
the Regulations.gov Web site for further information. Please be advised 
that EPA cannot contact you for any necessary clarification unless your 
contact information is included in the body of comments submitted 
through the Regulations.gov Web site.
    iii. Disk or CD-ROM. You may submit comments on a disk or CD-ROM 
that you mail to: Thomas H. Diggs, Chief, Air Planning Section (6PD-L), 
Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, 
Texas 75202-2733. Please include the text ``Public comment on ID No. 
TX-162-1-7598'' on the disk or CD-ROM. These electronic submissions 
will be accepted in WordPerfect, Word, or ASCII file format. You should 
avoid the use of special characters and any form of encryption.
    2. By Mail. Send your comments to: Thomas H. Diggs (6PD-L), 
Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, 
Texas

[[Page 9780]]

75202-2733. Please include the text ``Public comment on ID No. TX-162-
1-7598'' in the subject line of the first page of your comments.
    3. By Hand Delivery or Courier. Deliver your written comments or 
comments on a disk or CD-ROM to: Mr. Thomas H. Diggs, Chief (6PD-L), 
Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, 
Texas 75202-2733. Attention ``Public comment on ID No. TX-162-1-7598.'' 
Such deliveries are only accepted during official hours of business, 
which are Monday through Friday, 8:30 a.m. to 4 p.m., excluding Federal 
holidays.
    4. By Facsimile. Fax your comments to: (214) 665-7263, Attention 
``Public comment on ID No. TX-162-1-7598.'' Please notify the person 
listed in the FOR FURTHER INFORMATION CONTACT section of this document 
that a Fax has been sent.

D. How Should I Submit CBI to the Agency?

    You may assert a business confidentiality claim covering CBI 
information included in comments submitted by mail or hand delivery in 
either paper or electronic format. CBI should not be submitted via e-
mail or at the Regulations.gov Web site. Clearly mark any part or all 
of the information submitted which is claimed as CBI at the time the 
comment is submitted to EPA. CBI should be submitted separately, if 
possible, to facilitate handling by EPA. Submit one complete version of 
the comment that includes the properly labeled CBI for EPA's official 
administrative record and one copy that does not contain the CBI to be 
included in the public rulemaking file. If you submit CBI on a disk or 
CD-ROM, mark the outside of the disk or the CD-ROM that it contains CBI 
and then identify the CBI within the disk or CD-ROM. Also submit a non-
CBI version if possible. Information which is properly labeled as CBI 
and submitted by mail or hand delivery will be disclosed only in 
accordance with procedures set forth in 40 CFR part 2. For comments 
submitted by EPA's e-mail system or through the Regulations.gov Web 
site, no CBI claim may be asserted. Do not submit CBI to the 
Regulations.gov Web site or via EPA's e-mail system. Any claim of CBI 
will be waived for comments received through the Regulations.gov Web 
site or EPA's e-mail system. For further advice on submitting CBI to 
the Agency, contact the person listed in the FOR FURTHER INFORMATION 
CONTACT section of this notice.

E. What Should I Consider as I Prepare My Comments for EPA?

    You may find the following suggestions helpful for preparing your 
comments:
    1. Explain your views as clearly as possible.
    2. Describe any assumptions that you used.
    3. Provide any technical information and/or data you used that 
support your views.
    4. If you estimate potential burden or costs, explain how you 
arrived at your estimate.
    5. Provide specific examples to illustrate your concerns.
    6. Offer alternatives.
    7. Make sure to submit your comments by the comment period deadline 
identified.
    8. To ensure proper receipt by EPA, identify the appropriate ID No. 
in the subject line on the first page of your response. It would also 
be helpful if you provided the name, date, and Federal Register 
citation related to your comments.

Statutory and Executive Order Reviews

    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. 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 
proposed action merely proposes to approve 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 (Pub. L. 104-4).
    This proposed 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 proposes to approve 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 ``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 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. 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.).

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

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon Monoxide, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Lead, Nitrogen oxides, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: February 23, 2004.
Richard E. Greene,
Regional Administrator, Region 6.
[FR Doc. 04-4625 Filed 3-1-04; 8:45 am]
BILLING CODE 6560-50-P