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Revisions to the Arizona State Implementation Plan, Arizona Department of Environmental Quality

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Information about this document as published in the Federal Register.

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Environmental Protection Agency (EPA).


Final rule.


EPA is finalizing approval of revisions to the Arizona Department of Environmental Quality (ADEQ) portion of the Arizona State Implementation Plan (SIP). These revisions were proposed in the Federal Register on May 11, 2001 and concern affirmative defenses for excess emissions from sources regulated under the Clean Air Act as amended in 1990 (CAA or the Act).


This rule is effective on October 18, 2001.


You can inspect copies of the administrative record for this action at EPA's Region IX office during normal business hours. You can inspect copies of the submitted SIP revisions at the following locations:

Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901.

Environmental Protection Agency, Air Docket (6102), Ariel Rios Building, 1200 Pennsylvania Avenue, NW., Washington DC 20460.

Arizona Department of Environmental Quality, Air Quality Division, 3033 North Central Avenue, Phoenix, AZ 85012.

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Ginger Vagenas, Permits Office (AIR-3), U.S. Environmental Protection Agency, Region IX, (415) 744-1252.

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Throughout this document, “we,” “us” and “our” refer to EPA.

I. Proposed Action

On May 11, 2001 (66 FR 24074), EPA proposed to approve the following rules into the Arizona SIP: R18-2-310, Affirmative Defenses for Excess Emissions Due to Malfunctions, Startup, and Shutdown; and R18-2-310.01, Reporting Requirements. Start Printed Page 48088

We proposed to approve these rules because we determined that they complied with the relevant CAA requirements and EPA's September 20, 1999 policy memo regarding excess emissions (State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown). Our proposed action and technical support document 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 received comments from the following parties.

1. Newman Porter, Lewis and Roca, LLP, representing the Arizona Mining Association; letter dated May 22, 2001 and received May 30, 2001.

2. Joy E. Herr Cardillo, Arizona Center for Law in the Public Interest; letter dated June 11, 2001 and received June 11, 2001.

The comments and our responses are summarized below. Our response to comments document contains a more detailed analysis.

The Arizona Mining Association supports EPA's proposal to approve R18-2-310 and 310.01 into the Arizona state implementation plan. The Arizona Center for Law in the Public Interest (ACLPI) acknowledged that the rule generally tracks EPA policy, but pointed out several cases where ADEQ does not incorporate verbatim into Rule R18-2-310 the criteria set out in EPA's excess emissions policy. For example, they noted that under EPA's policy a malfunction must be beyond the control of the operator to qualify for an affirmative defense, whereas Rule 310 requires that it must be beyond the reasonable control of the operator. (Emphasis added) ACLPI contends that, because of this and other deviations from EPA's excess emissions policy, Rule 310 is significantly “less stringent” than the EPA policy.

The excess emissions policy does not constitute federal rulemaking. Rather, EPA issues policies to provide EPA staff, state regulators and the public with EPA's general interpretation of the Act's requirements. Unlike a regulation, EPA's policy is not binding and each SIP submission must be reviewed on its own merits.

The commenter notes several instances in which the Arizona rules do not include the conditions from EPA policy verbatim. However, the commenter does not expand on why the Arizona provisions are inconsistent with the CAA, instead only making vague allegations that the State rules are less stringent than the sample language in EPA's policy. EPA disagrees with the commenter that the variations in language used by Arizona modify the intent of EPA's policy. We believe that Rules 310 and 310.01 meet the goals of the policy, are consistent with the Act, and will not interfere with attainment and maintenance of the national ambient air quality standards and are therefore approvable.

III. EPA Action

No comments were submitted that change our assessment that the submitted rules comply with the relevant CAA requirements. Therefore, as authorized in section 110(k)(3) of the Act, EPA is fully approving these rules into the Arizona SIP.

IV. Administrative Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 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 32111, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this 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 approves 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 (Public Law 104-4). This rule also does 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), nor will it 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), 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. This rule also is not subject to Executive Order 13045 (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. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This 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.).

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).

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 Start Printed Page 48089appropriate circuit by November 19, 2001. 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).)

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List of Subjects in 40 CFR Part 52

  • Environmental protection
  • Air pollution control
  • Hydrocarbons
  • Incorporation by reference
  • Intergovernmental relations
  • Nitrogen dioxide
  • Ozone
  • Reporting and recordkeeping requirements
  • Volatile organic compounds
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Dated: August 30, 2001.

Sally Seymour,

Acting Regional Administrator, Region IX.

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

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

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

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Subpart D—Arizona

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2. Section 52.120 is amended by adding paragraph (c)(97) to read as follows:

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Identification of plan.
* * * * *

(c) * * *

(97) New and amended rules for the Arizona Department of Environmental Quality were submitted on March 26, 2001, by the Governor's designee.

(i) Incorporation by reference.

(A) Rules R18-2-310 and R18-2-310.01 effective on February 15, 2001.

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[FR Doc. 01-23001 Filed 9-17-01; 8:45 am]