[Federal Register: March 24, 2003 (Volume 68, Number 56)]
[Rules and Regulations]
[Page 14151-14154]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24mr03-12]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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
/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]
BILLING CODE 6560-50-P