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ENVIRONMENTAL PROTECTION AGENCY
Environmental Protection Agency
CFR Citation: 40 CFR Part 52
AZ ID: [AZ 078-0068; FRL-7460-9]
NOTICE: RULES
ACTION: Air quality implementation plans; approval and promulgation; various States:
DOCUMENT ACTION: Final rule.
SUBJECT CATEGORY: Revision to the Arizona State Implementation Plan, Arizona Department of Environmental Quality
EFFECTIVE DATES: Today's final rule is effective on April 23, 2003.
DOCUMENT 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 (PM10) 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 PM10 emissions from mobile sources.
SUMMARY: Arizona,
SUPPLEMENTAL 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
A summary of the deficiencies identified in these rules follows. Rule R182701 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 R182702, which is not in the SIP.
Rule R182725 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 R182727 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 R182801 and R182802 have the following deficiencies:
[sbull] The rules should be restricted to apply to used or inuse
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
The NPRM contains more information on the rules and our evaluation. II. Public Comments and EPA Responses
EPA's proposed action provided a 30day 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
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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 notforprofit 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 FederalState 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, 25566 (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 costeffective 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 DArizona
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 R182701, R182710, R182725, R182727, R182801,
R182802, R182803, R182804, and R182805, amended on November 15, 1993.
* * * * *
[FR Doc. 036817 Filed 32103; 8:45 am]
BILLING CODE 656050P
FOR FURTHER INFORMATION CONTACT Al Petersen, Rulemaking Office (AIR- 4), U.S. Environmental Protection Agency, Region IX; (415) 9474118.
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