[Federal Register Volume 74, Number 49 (Monday, March 16, 2009)]
[Rules and Regulations]
[Pages 11037-11040]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-4802]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2008-0884; FRL-8771-1]


Approval and Promulgation of Implementation Plans; Hawaii; 
Correction

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: Under the Clean Air Act, EPA is correcting errors in certain 
final rules approving or compiling the Hawaii state implementation 
plan. These errors relate to the title of the plan, removal of variance 
provisions, and compilations of federally-enforceable regulations. The 
intended effect is to ensure that the Hawaii state implementation plan 
is correctly identified in the applicable part of the Code of Federal 
Regulations.

DATES: This rule is effective on May 15, 2009 without further notice, 
unless EPA receives adverse comments by April 15, 2009. If we receive 
such comments, we will publish a timely withdrawal in the Federal 
Register to notify the public that this direct final rule will not take 
effect.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2008-088F, by one of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions.
    2. E-mail:[email protected].
    3. Mail or deliver: Ginger Vagenas (AIR-2), U.S. Environmental 
Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 
94105-3901.

[[Page 11038]]

    Instructions: All comments will be included in the public docket 
without change and may be made available online at http://www.regulations.gov, including any personal information provided, 
unless the comment includes Confidential Business Information (CBI) or 
other information whose disclosure is restricted by statute. 
Information that you consider CBI or otherwise protected should be 
clearly identified as such and should not be submitted through http://www.regulations.gov or e-mail. The http://www.regulations.gov portal is 
an ``anonymous access'' system, and EPA will not know your identity or 
contact information unless you provide it in the body of your comment. 
If you send e-mail directly to EPA, your e-mail address will be 
automatically captured and included as part of the public comment. 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.
    Docket: The index to the docket for this action is available 
electronically at http://www.regulations.gov and in hard copy at EPA 
Region IX, 75 Hawthorne Street, San Francisco, California. While all 
documents in the docket are listed in the index, some information may 
be publicly available only at the hard copy location (e.g., copyrighted 
material), and some may not be publicly available in either location 
(e.g., CBI). To inspect the hard copy materials, please schedule an 
appointment during normal business hours with the contact listed in the 
FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Ginger Vagenas, Plannning Office (AIR-
2), U.S. Environmental Protection Agency, Region IX, (415) 972-3964, 
[email protected].

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

Table of Contents

I. Background
II. Error Correction
III. Public Comment and Final Action
IV. Statutory and Executive Order Reviews

I. Background

    Under the Clean Air Act (CAA or ``Act''), each state is required to 
have a state implementation plan (SIP) which contains the control 
measures and strategies which will be used to attain and maintain the 
national ambient air quality standards (NAAQS). The SIP is extensive, 
containing such elements as emission inventories, monitoring networks, 
attainment demonstrations, and enforcement mechanisms. The control 
measures and strategies must be formally adopted by each state after 
the public has had an opportunity to comment on them. They are then 
submitted to EPA as SIP revisions on which EPA must formally act.
    The SIP is a living document which can be revised by the state as 
necessary to address the unique air pollution problems in the state. 
Therefore, EPA from time to time must take action on SIP revisions 
which may contain new and/or revised regulations as being part of the 
SIP. On May 31, 1972 (37 FR 10842), EPA approved, with certain 
exceptions, the initial SIPs for 50 states, four territories and the 
District of Columbia. Since 1972, each state and territory has 
submitted numerous SIP revisions, either on their own initiative, or 
because they were required to as a result of various amendments to the 
CAA. EPA codifies its approvals and disapprovals of SIPs and SIP 
revisions in 40 CFR part 52 (``Approval and promulgation of 
implementation plans'').
    The Hawaii SIP is identified in subpart M (``Hawaii'') of part 52. 
As with other State SIPs, EPA has taken a number of actions since 1972 
with respect to the Hawaii SIP. In 1997, under CAA section 110(k)(6), 
we deleted certain variance-related provisions from the Hawaii SIP that 
we determined had been erroneously approved by us in the past. See 62 
FR 34641 (June 27, 1997). In so doing, we mistakenly identified the 
variance-related provision erroneously approved on May 31, 1972 as 
``Chapter 43, Section 7.'' See 62 FR 34641, at 34648. The variance-
related provision is found in section 20 of chapter 43 (Air Pollution 
Control Regulations) rather than section 7. In addition, we 
inadvertently neglected to remove various other variance-related rules 
and statutory provisions from the Hawaii SIP, including Air Pollution 
Control Law, Hawaii Revised Statutes, chapter 322, part V, section 322-
68, approved on May 31, 1972 (37 FR 10842); S.B. No. 1382-72, Act 100, 
section 7, approved on November 8, 1973 (38 FR 30876); chapter 43, 
section 20, approved on May 14, 1973 (38 FR 12711); and Hawaii Statute 
on Environmental Quality, Hawaii Revised Statutes, chapter 342, section 
342-7 (48 FR 37402), approved on August 18, 1983 (48 FR 37402).
    In 2005, we revised the format of subpart M (``Hawaii'') in 40 CFR 
part 52 for materials submitted by the State of Hawaii that are 
incorporated by reference into the Hawaii SIP. See 70 FR 44852 (August 
4, 2005). In so doing, we mistakenly identified the original plan as 
``Implementation Plan for Compliance With the Ambient Air Quality 
Standards for the State of Hawaii.'' Actually, the title of the 
original plan is ``State of Hawaii Air Pollution Control Implementation 
Plan.'' Also, in our 2005 final rule, we listed all of the rules that 
we believed to be federally enforceable but neglected to list certain 
rules that had been approved in the early 1970s and that have never 
been withdrawn or replaced. These include the following sections of 
chapter 43, Air Pollution Control Regulations: section 22 (``Hearings 
and Appeals'') and section 23 (``Application''). These rules were 
submitted by the State of Hawaii on November 21, 1972 and January 28, 
1972, respectively, and were approved by EPA on May 14, 1973 (38 FR 
12711) and May 31, 1972 (37 FR 10842), respectively.

II. Error Correction

    Section 110(k)(6) of the Clean Air Act, as amended in 1990, 
provides, ``Whenever the Administrator determines that the 
Administrator's action approving, disapproving, or promulgating any 
plan or plan revision (or part thereof), area designation, 
redesignation, classification or reclassification was in error, the 
Administrator may in the same manner as the approval, disapproval, or 
promulgation revise such action as appropriate without requiring any 
further submission from the State. Such determination and the basis 
thereof shall be provided to the State and the public.''
    We interpret this provision to authorize the Agency to make 
corrections to a promulgated regulation when it is shown to our 
satisfaction that (1) we clearly erred in failing to consider or in 
inappropriately considering information made available to EPA at the 
time of the promulgation, or the information made available at the time 
of promulgation is subsequently demonstrated to have been clearly 
inadequate, and (2) other information persuasively supports a change in 
the regulation. See 57 FR 56762, at 56763 (November 30, 1992).
    In this instance, we find clear errors in our 1997 final rule 
removing certain variance-related provisions from the Hawaii SIP. The 
first error involved identification of the wrong section number, and 
the second error involved the failure to list the other variance-
related provisions in the Hawaii SIP. As discussed in our June 27, 1997 
final rule (see at 62 FR 34641, at 34642), variance provisions were 
rendered without legal effect by amendments to the CAA enacted by 
Congress in 1977 and the

[[Page 11039]]

presence of these provisions in the SIPs is potentially confusing, and 
thus, harmful to the regulated community, the states and EPA. For a 
more detailed discussion of our rationale for removing variance 
provisions from SIPs, see 61 FR 38664, at 38665 (July 25, 1996). To 
correct these errors, we are correcting the section number (for the 
variance provision in chapter 43 as approved in May 1972) and deleting 
the additional variance-related provisions approved on May 31, 1972, 
May 14, 1973, November 8, 1973, and August 18, 1983.
    Second, we find clear errors in our 2005 final rule re-formatting 
our approvals of submittals of the Hawaii SIP and SIP revisions. We 
erred first by incorrectly identifying the title of the original Hawaii 
plan and then by failing to list two additional rules approved by EPA 
as part of the Hawaii SIP that were never withdrawn or replaced. To 
correct these errors, we are correcting the title of the original 
Hawaii SIP in 40 CFR 52.622(a) and adding the entries for the two 
additional rules into the table of EPA-approved regulations in 40 CFR 
52.620(c).

III. Public Comment and Final Action

    As authorized in section 110(k)(6) of the Act, and for the reasons 
set forth above, EPA is correcting errors in certain final rules 
approving or compiling the Hawaii state implementation plan. 
Specifically, we are correcting the section number (for the variance 
provision in chapter 43 as approved in May 1972) and deleting the 
additional variance-related provisions approved on May 31, 1972, May 
14, 1973, November 8, 1973, and August 18, 1983. We are also revising 
the title of the original Hawaii SIP in 40 CFR 52.622(a) and adding the 
entries for the two additional rules (chapter 43, sections 22 and 23) 
as approved on May 14, 1973 and May 31, 1972, respectively, into the 
table of EPA-approved regulations in 40 CFR 52.620(c).
    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 action. If we receive adverse comments by April 
15, 2009, 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 
May 15, 2009.

IV. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely corrects previous actions approving 
state law as meeting Federal requirements and does not impose 
additional requirements beyond those imposed by state law. For that 
reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
SIP is not approved to apply in Indian country located in the state, 
and EPA notes that it will not impose substantial direct costs on 
tribal governments or preempt tribal law.
    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 action 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 appropriate circuit by May 15, 2009. Parties with 
objections to this direct final rule are encouraged to file a comment 
in response to the parallel notice of proposed rulemaking for this 
action published in the proposed rules section of today's Federal 
Register, rather than file an immediate petition for judicial review of 
this direct final rule, so that EPA can withdraw this direct final rule 
and address the comment in the proposed rulemaking. Filing a petition 
for reconsideration by the Administrator of this final rule does not 
affect the finality of this action 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, Intergovernmental 
relations, Reporting and recordkeeping requirements.

    Dated: February 25, 2009.
Jane Diamond,
Acting Regional Administrator, Region IX.

0
Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

[[Page 11040]]

Subpart M--Hawaii

0
2. In Sec.  52.620, the table in paragraph (c) is amended by revising 
the table heading and adding the entries to the beginning of the table 
for ``Department of Health, Public Health Regulations, chapter 43, Air 
Pollution Control Regulations,'' sections 22 and 23 to read as follows:


Sec.  52.620  Identification of plan.

* * * * *
    (c) * * *

                                    EPA Approved State of Hawaii Regulations
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                                                                           EPA approval
          State citation                Title/subject     Effective date       date             Explanation
----------------------------------------------------------------------------------------------------------------
Department of Health, Public
 Health Regulations, chapter 43,
 Air Pollution Control
 Regulations:
    Section 22....................  Hearings and Appeals      12/26/1972      05/14/1973  38 FR 12711
    Section 23....................  Application.........      03/28/1972      05/31/1972  37 FR 10842
 
                                                  * * * * * * *
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* * * * *

0
3. Section 52.622 is amended as follows:
0
a. By revising paragraph (a).
0
b. By revising paragraph (b)(1).
0
c. By adding paragraph (c)(4)(i) and adding and reserving paragraph 
(c)(4)(ii).
0
d. By adding paragraph (c)(5)(i), and adding and reserving paragraph 
(c)(5)(ii).
0
e. By adding paragraph (c)(15)(i) and adding and reserving paragraph 
(c)(15)(ii). The amendments are as follows:


Sec.  52.622  Original identification of plan.

    (a) This section identified the original ``State of Hawaii Air 
Pollution Control Implementation Plan'' and all revisions submitted by 
the State of Hawaii that were federally approved prior to June 1, 2005.
    (b) * * *
    (1) Previously approved on May 31, 1972 in paragraph (b) of this 
section and now deleted from the SIP without replacement Air Pollution 
Control Law, Hawaii Revised Statutes, chapter 322, part V, section 322-
68 and Public Health Regulations, chapter 43, section 20.
    (c) * * *
    (4) * * *
    (i) Previously approved on November 8, 1973 in paragraph (c)(4) of 
this section and now deleted from the SIP without replacement S.B. No. 
1382-72, Act 100, section 7.
    (ii) [Reserved]
    (5) * * *
    (i) Previously approved on May 14, 1973 in paragraph (c)(5) of this 
section and now deleted from the SIP without replacement chapter 43, 
section 20.
    (ii) [Reserved]
* * * * *
    (15) * * *
    (i) Previously approved on August 18, 1983 in paragraph (c)(15) of 
this section and now deleted from the SIP without replacement Hawaii 
Statute on Environmental Quality, Hawaii Revised Statutes, chapter 342, 
section 342-7.
    (ii) [Reserved]
* * * * *
[FR Doc. E9-4802 Filed 3-13-09; 8:45 am]
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