[Federal Register Volume 74, Number 194 (Thursday, October 8, 2009)]
[Rules and Regulations]
[Pages 51795-51798]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-24191]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2009-0435; FRL-8966-3]


Approval and Promulgation of Implementation Plans; Corrections to 
the Arizona and Nevada State Implementation Plans

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is deleting certain statutes and rules that were 
erroneously approved by EPA under the Clean Air Act as part of the 
Arizona and Nevada state implementation plans. The rules that are the 
subject of this rule were adopted by Pima County Health Department in 
Arizona and the State Environmental Commission, Clark County District 
Board of Health, and Washoe County District Board of Health in Nevada. 
The statutes and rules that EPA is deleting relate to general 
declarations of policy, advisory committees, variances, and incidental 
fees and nuisance odors. EPA has determined that the continued presence 
of these statutory provisions and rules in the applicable state 
implementation plans is potentially confusing and thus harmful to 
affected sources, the state, local agencies, the general public and to 
EPA. The intended effect of this action is to delete these statutes and 
rules from the Arizona and Nevada state implementation plans.

DATES: This rule is effective on December 7, 2009 without further 
notice, unless EPA receives adverse comments by November 9, 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-
2009-0435, by one of the following methods:
    1. Federal eRulemaking Portal: http:[sol][sol]www.regulations.gov. 
Follow the on-line instructions.
    2. E-mail: [email protected].
    3. Mail or deliver: Cynthia Allen (AIR-4), U.S. Environmental 
Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 
94105-3901.
    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:[sol][sol]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: Cynthia Allen, Rules Office (AIR-4), 
U.S. Environmental Protection Agency, Region IX, (415) 947-4120, 
[email protected].

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

Table of Contents

I. Why is EPA correcting the SIPs?
II. What Statutory Provisions and rules are being deleted?
III. Public Comment and Final Action
IV. Administrative Requirements

I. Why is EPA correcting the SIPs?

    The Clean Air Act (CAA or ``Act'') was first enacted in 1970. In 
the 1970's and early 1980s, thousands of state and local agency 
regulations were submitted to EPA for incorporation into state 
implementation plans (SIPs) in order to fulfill the new federal 
requirements. In many cases, states submitted entire regulatory air 
pollution programs, including many elements not required by the Act. 
Due to time and resource constraints, EPA's review of these submittals 
focused primarily on the new substantive requirements, and we approved 
many other elements into the SIP with minimal review.
    We now recognize that many of these elements were not appropriate 
for approval into the SIPs because they are not required for SIPs and 
are not related to the SIPs' purpose under CAA section 110(a) of 
implementing, maintaining, and enforcing the national ambient air 
quality standards. Examples of inappropriately-approved SIP elements 
include statutes and rules that consist of general statements of 
policy; that govern local advisory boards; that specify incidental 
fees, method of payment, and refunds; and that regulate nuisance odors. 
Most of the statutes and rules we are deleting in today's action fall 
under one of these categories.
    In addition, we are deleting certain variance-related provisions 
that were orphaned by a previous EPA rulemaking deleting most such 
provisions from the Nevada Division of Environmental Protection (NDEP) 
portion of the Nevada SIP and the Pima County portion of the Arizona 
SIP. See EPA's proposed rule at 61 FR 38664 (July 25, 1996) and final 
rule at 62 FR 34641 (June 27, 1997) for the rationale concerning the 
inappropriateness of variance provisions in a SIP. As explained EPA 
1996 rule proposing to remove various variance-related provisions, 
variance provisions are generally prohibited by, and are not legally 
enforceable pursuant to, section 110(i) of the Act.

[[Page 51796]]

II. What statutory provisions and rules are being deleted?

    EPA has determined that the statutes and rules listed in the tables 
below were inappropriate for inclusion in the SIP, but were previously 
approved into the SIP in error. Dates that these statutes and rules 
were submitted by Arizona and Nevada and approved by EPA are provided. 
We are deleting these statutes and rules from the Arizona and Nevada 
SIPs under CAA section 110(k)(6) \1\ as inconsistent with the 
requirements of CAA section 110(a).
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    \1\ 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.''

                                            Arizona Revised Statutes
----------------------------------------------------------------------------------------------------------------
            Statute No.                       Title          Submittal date         Approval date/FR cite
----------------------------------------------------------------------------------------------------------------
36-770.............................  Declaration of Policy.        07/13/81  06/18/82; 47 FR 26382
36-774.............................  County Control Boards.        07/13/81  06/18/82; 47 FR 26382
36-775.............................  Powers and Duties.....        07/13/81  06/18/82; 47 FR 26382
36-776.............................  Authorization to              07/13/81  06/18/82; 47 FR 26382
                                      Accept Funds or
                                      Grants.
36-777.............................  Advisory Council......        07/13/81  06/18/82; 47 FR 26382
36-779.............................  Rules & Regulations;          07/13/81  06/18/82; 47 FR 26382
                                      Hearing; Limitations.
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                                 Pima County Department of Environmental Quality
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              Rule No.                        Title          Submittal date         Approval date/FR cite
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131................................  Establishment.........        10/09/79  04/16/82; 47 FR 16326
132................................  Composition...........        10/09/79  04/16/82; 47 FR 16326
133................................  Terms: Nominations....        10/09/79  04/16/82; 47 FR 16326
134................................  Function..............        10/09/79  04/16/82; 47 FR 16326
135................................  Officers; Procedures..        10/09/79  04/16/82; 47 FR 16326
136................................  Meetings; Special             10/09/79  04/16/82; 47 FR 16326
                                      Studies; Hearings.
137................................  Compensation; Absences        10/09/79  04/16/82; 47 FR 16326
164................................  Copies................        10/09/79  04/16/82; 47 FR 16326
181................................  Legal Authority.......        10/09/79  04/16/82; 47 FR 16326
182................................  General Procedures....        10/09/79  04/16/82; 47 FR 16326
205................................  Conditional Permits           10/09/79  04/16/82; 47 FR 16326
                                      (Variances).
214................................  Permit Fee Payments...        10/09/79  04/16/82; 47 FR 16326
245................................  Conditional Permit            10/09/79  04/16/82; 47 FR 16326
                                      (Variance) Fees.
246................................  Payment of Permit Fees        10/09/79  04/16/82; 47 FR 16326
247................................  Refund of Permit Fees.        10/09/79  04/16/82; 47 FR 16326
248................................  Fees for Duplicate            10/09/79  04/16/82; 47 FR 16326
                                      Permits.
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                                            Nevada State Regulations
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              Rule No.                        Title          Submittal date         Approval date/FR cite
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2.11.7.............................  Untitled, but related         12/29/78  08/27/81; 46 FR 43141
                                      to judicial review of
                                      variances.
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                       Clark County Department of Air Quality and Environmental Management
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              Rule No.                        Title          Submittal date         Approval date/FR cite
----------------------------------------------------------------------------------------------------------------
Section 3, rule 3.1................  Air Pollution Control         07/24/79  08/27/81; 46 FR 43141
                                      Committee.
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                    Washoe County District Health Department, Air Quality Management Division
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              Rule No.                        Title          Submittal date         Approval date/FR cite
----------------------------------------------------------------------------------------------------------------
020.020............................  Adoption, Amending            06/12/72  07/27/72; 37 FR 15080
                                      Regulations.
020.030............................  Hearing Board--Powers         06/12/72  07/27/72; 37 FR 15080
                                      and Duties.
020.075............................  Technical Reports and         06/12/72  07/27/72; 37 FR 15080
                                      Fees.
030.3105...........................  Hazardous Materials           07/24/79  08/27/81; 46 FR 43141
                                      Processes.
030.3107...........................  Untitled, but related         07/24/79  08/27/81; 46 FR 43141
                                      to the cost for
                                      permit transfer.
030.3108...........................  Untitled, but related         07/24/79  08/27/81; 46 FR 43141
                                      to the cost for
                                      permit replacement.
040.055............................  Nuisance--Odorous or          06/12/72  07/27/72; 37 FR 15080
                                      Gaseous Contaminants.
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    We are also taking this opportunity to correct certain clerical and 
typographical errors in a certain paragraph from the Arizona subpart of 
part 52 (``Approval and promulgation of implementation plans'') listing

[[Page 51797]]

approved rules from the Pima County Health Department as submitted by 
Arizona on October 9, 1979, and approved by EPA on April 18, 1982 (47 
FR 16326). The subject paragraph is 40 CFR 52.120(c)(38)(i)(A). In our 
1982 final rule approving certain Pima County rules, we inadvertently 
identified the rules approved under ``Regulation 21'' as ``Rules 221-
225.'' The correct listing for the approved rules under ``Regulation 
21'' is ``Rules 211-215.''
    In addition, as noted in an EPA final rule published at 69 FR 2509 
(January 16, 2004), beginning with the 1993 version of the Code of 
Federal Regulations (CFR), the Government Printing Office (GPO) 
inadvertently omitted two lines of codified rules from 40 CFR 
52.120(c)(38)(i)(A), the same paragraph listing the Pima County rules 
approved by us in 1982. Our 2004 correcting amendment replaced most of 
the Pima County rules inadvertently omitted by the GPO but 
inadvertently failed to include ``Regulation 21, Rules 221-225,'' 
which, as noted above, should read: ``Regulation 21: Rules 211-215.''
    In addition, beginning with the 2004 version of the CFR, the 
paragraph (that omitted certain Pima County rules) that was intended to 
be replaced in its entirety through our 2004 correcting amendment has 
been published in addition to the replacement paragraph. In this 
action, we are correcting all of these errors with a revision to 40 CFR 
52.120(c)(38)(i)(A) that correctly lists the rules approved under 
``Regulation 21'' and that deletes the paragraph that we intended to 
replace in 2004.

III. Public Comment and Final Action

    EPA has reviewed the statutes and rules listed in the tables above 
and determined that they were previously approved into the respective 
SIPs in error. Deletion of these rules will not relax the applicable 
SIP and is consistent with the Act. Therefore, EPA is deleting these 
statutes and rules under section 110(k)(6) of the Act, which provides 
EPA authority to remove these statutes and rules without additional 
State submission.
    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 November 
9, 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 December 7, 
2009.

IV. Administrative Requirements

    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 December 7, 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, Incorporation by 
reference, Intergovernmental relations, Reporting and recordkeeping 
requirements.

    Dated: September 15, 2009.
Laura Yoshii,
Acting Regional Administrator, Region IX.

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

[[Page 51798]]

PART 52--[AMENDED]

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

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

Subpart D--Arizona

0
2. Section 52.120 is amended by:
0
a. Revising paragraph (c)(38)(i)(A);
0
b. Adding paragraph (c)(38)(i)(A)(1); and
0
c. Adding paragraph (c)(50)(ii)(A)(1).
    The revision and additions read as follows:


Sec.  52.120  Identification of plan.

* * * * *
    (c) * * *
    (38) * * *
    (i) * * *
    (A) New or amended Regulation 10: Rules 101-103; Regulation 11: 
Rules 111-113; Regulation 12: Rules 121-123; Regulation 13: Rules 131-
137; Regulation 14: Rules 141 and 143-147; Regulation 15: Rule 151; 
Regulation 16: Rules 161-165; Regulation 17: Rules 172-174; Regulation 
18: Rules 181 and 182; Regulation 20: Rules 201-205; Regulation 21: 
Rules 211-215; Regulation 22: Rules 221-226; Regulation 23: Rules 231-
232; Regulation 24: Rules 241 and 243-248; Regulation 25: Rules 251 and 
252; Regulation 30: Rules 301 and 302; Regulation 31: Rules 312-316 and 
318; Regulation 32: Rule 321; Regulation 33: Rules 331 and 332; 
Regulation 34: Rules 341-344; Regulation 40: Rules 402 and 403; 
Regulation 41: 411-413; Regulation 50: Rules 501-503 and 505-507; 
Regulation 51: Rules 511 and 512; Regulation 60: Rule 601; Regulation 
61: Rule 611 (Paragraph A.1 to A.3) and Rule 612; Regulation 62: Rules 
621-624; Regulation 63: Rule 631; Regulation 64: Rule 641; Regulation 
70: Rules 701-705 and 706 (Paragraphs A to C, D.3, D.4, and E); 
Regulation 71: Rules 711-714; Regulation 72: Rules 721 and 722; 
Regulation 80: Rules 801-804; Regulation 81: Rule 811; Regulation 82: 
Rules 821-823; Regulation 90: Rules 901-904; Regulation 91: Rule 911 
(except Methods 13-A, 13-B, 14, and 15), and Rules 912 and 913; 
Regulation 92: Rules 921-924; and Regulation 93: Rules 931 and 932.
    (1) Previously approved on April 16, 1982 in paragraph 
(c)(38)(i)(A) of this section and now deleted from the SIP without 
replacement Pima County Health Department Regulations: Regulation 13: 
Rules 131-137; Regulation 16: Rule 164; Regulation 18: Rules 181 and 
182; Regulation 20: Rule 205; Regulation 21: Rule 214; and Regulation 
24: Rules 245-248.
* * * * *
    (50) * * *
    (ii) * * *
    (A) * * *
    (1) Previously approved on June 18, 1982 in paragraph 
(c)(50)(ii)(A) of this section and now deleted from the SIP without 
replacement Arizona Revised Statutes: sections 36-770, 36-774, 36-775, 
36-776, 36-777, and 36-779.
* * * * *

Subpart DD--Nevada

0
3. Section 52.1470 is amended by:
0
a. Adding paragraphs (c)(2)(i), (c)(14)(vii)(A), (c)(16)(viii)(D), and 
(c)(16)(ix)(A) to read as follows:


Sec.  52.1470  Identification of plan.

* * * * *
    (c) * * *
    (2) * * *
    (i) Previously approved on July 27, 1972 in paragraph (c)(2) of 
this section and now deleted from the SIP without replacement Washoe 
County Air Quality Regulations: Rules 020.020, 020.030, 020.075, and 
040.055.
* * * * *
    (14) * * *
    (vii) * * *
    (A) Previously approved on August 27, 1981 in paragraph 
(c)(14)(vii) of this section and now deleted from the SIP without 
replacement Nevada Air Quality Regulations: Rule 2.11.7.
* * * * *
    (16) * * *
    (viii) * * *
    (D) Previously approved on August 27, 1981 in paragraph 
(c)(16)(viii) of this section and now deleted from the SIP without 
replacement Nevada Air Quality Regulations: Clark County District Board 
of Health Air Pollution Control Regulations: Section 3, Rule 3.1.
    (ix) * * *
    (A) Previously approved on August 27, 1981 in paragraph (c)(16)(ix) 
of this section and now deleted from the SIP without replacement Washoe 
County Air Quality Regulations: Rules 030.3105, 030.3107, and 030.3108.
* * * * *
[FR Doc. E9-24191 Filed 10-7-09; 8:45 am]
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