The EPA Regional Administrator, Jared Blumenfeld signed the following 

proposed rule on July 20, 2012 and EPA is submitting it for publication in 

the Federal Register (FR). While we have taken steps to ensure the accuracy 

of this Internet version of the proposed rule, it is not the official version 

of the proposal for purposes of public comment. Please refer to the official 

version in a forthcoming FR publication appearing on the Government Printing 

Office’s FDsys website, http://fdsys.gpo.gov/fdsys/search/home.action and on 

Regulation.gov in Docket Number EPA-R09-OAR-2012-0398, 

http://www.regulations.gov

Billing Code: 6560-50-P

ENVIRONMENTAL PROTECTION AGENCY

40 CFR part 52

[EPA-R09-OAR-2012-0398; FRL-_________]

Partial Approval and Disapproval of Air Quality Implementation 

Plans; Arizona; State Board Requirements for Ozone and Fine 

Particulate Matter

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA is proposing to partially approve and partially 

disapprove a State Implementation Plan (SIP) revision submitted 

by the State of Arizona to address the requirements of section 

110(a)(2)(E)(ii) of the Clean Air Act (CAA) for the 1997 8-hour 

ozone national ambient air quality standards (NAAQS) and the 

1997 and 2006 NAAQS for fine particulate matter (PM2.5). EPA is 

proposing to approve the state’s provisions regarding disclosure 

of potential conflicts of interest under 128(a)(2), but is 

proposing to disapprove, on narrow grounds, their 128(a)(1) 

provisions regarding board composition because these provisions 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on July 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

2

do not apply to enforcement orders. We encourage the State to 

submit a revised SIP to address this very narrow deficiency, and 

we stand ready to work with the State to develop a revised plan.

We are taking comments on this proposal and plan to follow with 

a final action.

DATES: Written comments must be received on or before [Insert 

date 30 days after publication in the Federal Register]. 

ADDRESSES: Submit your comments, identified by Docket ID Number 

EPA-R09-OAR-2012-0398, by one of the following methods:

1. http://www.regulations.gov: Follow the on-line instructions 

for submitting comments.

2. E-mail: r9_airplanning@epa.gov

3. Fax: 415-947-3579

4. Mail or deliver: Rory Mays (AIR-2), U.S. Environmental 

Protection Agency, Region IX, 75 Hawthorne Street, San 

Francisco, CA 94105-3901. Deliveries are only accepted 

during the Regional Office’s normal hours of operation.

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
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on July 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

3

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 email. http://www.regulations.gov 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 

email 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: Generally, documents in the docket for this action 

are available electronically at 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 at 

www.regulations.gov, some information may be publicly available 

only at the hard copy location (e.g., copyrighted material, 

large maps), 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.
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on July 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

4

FOR FURTHER INFORMATION CONTACT: Rory Mays, Air Planning Office 

(AIR–2), U.S. Environmental Protection Agency, Region IX, (415) 

972-3227, mays.rory@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, the terms

“we,” “us,” and “our” refer to EPA.

TABLE OF CONTENTS

I. Background

A. Regulatory History

B. EPA Guidance

II. The State’s Submittal

III. EPA’s Evaluation 

IV. Proposed Action

V. Statutory and Executive Order Reviews

I. Background

A. Regulatory History

On July 18, 1997, EPA issued a revised NAAQS for ozone1 and 

a new NAAQS for fine particulate matter (PM2.5).2 EPA 

subsequently revised the 24-hour PM2.5 NAAQS on September 21, 

2006.3 Each of these actions triggered a requirement for states 

to submit an infrastructure SIP to address the applicable 

requirements of section 110(a)(2) within three years of issuance 

 

1 The 8-hour averaging period replaced the previous 1-hour averaging period, 

and the level of the NAAQS was changed from 0.12 parts per million (ppm) to 

0.08 ppm (62 FR 38856). 

2 The annual PM2.5standard was set at 15 micrograms per cubic meter (μg/m3), 

based on the 3-year average of annual arithmetic mean PM2.5 concentrations 

from single or multiple community-oriented monitors and the 24-hour PM2.5

standard was set at 65 μg/m3, based on the 3-year average of the 98th 

percentile of 24-hour PM2.5 concentrations at each population-oriented 

monitor within an area (62 FR 38652).

3 The final rule revising the 24-hour NAAQS for PM2.5 from 65 μg/m3 to 35 μg/m3

was published in the Federal Register on October 17, 2006 (71 FR 61144). 
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ensure the accuracy of this version, but it is not the official version.

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of the new or revised NAAQS. Section 110(a)(2) includes a list 

of specific elements that each such plan submission must meet, 

including section 110(a)(2)(E)(ii), which requires compliance 

with the requirements of section 128 of the CAA.

On March 10, 2005, EPA entered into a Consent Decree with 

EarthJustice that obligated EPA to make official findings in 

accordance with section 110(k)(1) of the CAA as to whether 

states had made required complete SIP submissions, pursuant to 

sections 110(a)(1) and (2), by December 15, 2007 for the 1997 8-

hour ozone NAAQS and by October 5, 2008 for the 1997 PM2.5

NAAQS. EPA made such findings for the 1997 8-hour ozone NAAQS on 

March 27, 2008 (73 FR 16205) and for the 1997 PM2.5 NAAQS on 

October 22, 2008 (73 FR 62902). In each case, EPA found that 

Arizona had failed to make a complete submittal to satisfy the 

requirements of section 110(a)(2)(E)(ii). 

The State board SIP provisions in section 128 require each 

state to submit a SIP that contains requirements that (1) any 

board or body which approves permits or enforcement orders under 

the CAA shall have at least a majority of members who represent 

the public interest and do not derive any significant portion of 

their income from persons subject to permits or enforcement 

orders under the CAA; and (2) any potential conflicts of 

interest by members of such board or body or the head of an 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on July 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

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executive agency with similar powers be adequately disclosed. 42 

U.S.C. 7428.

 B. EPA Guidance

In 1978, EPA issued a guidance memorandum recommending ways 

States could meet the requirements of section 128 (“1978 

Guidance”), including suggested interpretations of certain terms 

in section 128.4 EPA has not issued further guidance or 

regulations of general applicability on the subject since that 

time. However, as part of our proposals on other recent 

infrastructure actions, EPA has proposed certain interpretations 

of section 128 and invited comment on these interpretations. 

See, e.g., EPA’s proposed rule on infrastructure SIP 

requirements for Hawaii (77 FR 21913, April 12, 2012). We are 

now proposing these same interpretations in relation to the 

Arizona infrastructure SIP.5

II. The State’s Submittals

On October 14, 2009, ADEQ submitted the “Arizona State 

Implementation Plan Revision under Clean Air Act Section 

110(a)(2) and (2); 2006 PM2.5 NAAQS, 1997 PM2.5 NAAQS and 1997 

8-hour Ozone NAAQS,” to address all of the CAA section 110(a)(2) 

 

4 See Memorandum from David O. Bickart to Regional Air Directors, “Guidance to 

States for Meeting Conflict of Interest Requirements of Section 128,” 

Suggested Definitions, March 2, 1978.

5 If EPA finalizes this action, the proposed interpretations will supersede 

(to the extent that they are inconsistent with) interpretations suggested in 

the 1978 guidance, at least for Arizona’s SIP.
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requirements except for section 110(a)(2)(G)6 for these three 

NAAQS (“2009 Infrastructure Submittal”).

7 The 2009 Infrastructure 

Submittal includes public process documentation (including 

public comments) and evidence of adoption. 

On June 1, 2012, ADEQ submitted the “Proposed Supplement to 

the Arizona State Implementation Plan under Clean Air Act 

Section 110(a)(1) and (2): Implementation of [1997 PM2.5 and 8-

hour ozone NAAQS and 2006 PM2.5 NAAQS], Parallel Processing 

Version” (“2012 Supplement”). The 2012 Supplement includes a 

number of statutes and regulations that are currently effective 

under State law but that have not been adopted specifically for 

submittal to EPA as a SIP revision under CAA section 110. By 

letter dated June 1, 2012, ADEQ submitted unofficial copies of 

these statutes and regulations to EPA with a request for 

“parallel processing”8 and stated its intention to submit these 

 

6 In a separate rulemaking, EPA proposed to fully approve Arizona’s SIP to 

address the requirements regarding air pollution emergency episodes in CAA 

section 110(a)(2)(G) for the 1997 8-hour ozone NAAQS. 77 FR 21911 (April 12, 

2012).

7 See letter dated October 14, 2009, from Eric C. Massey, Air Quality 

Director, ADEQ, to Laura Yoshii, Acting Regional Administrator, EPA Region 9.

8 Under EPA’s "parallel processing" procedure, EPA proposes rulemaking action 

concurrently with the State's proposed rulemaking. If the State's proposed 

plan is changed, EPA will evaluate that subsequent change and may publish 

another notice of proposed rulemaking. If no significant change is made, EPA

will publish a final rulemaking on the plan after responding to any submitted 

comments. Final rulemaking action by EPA will occur only after the plan has 

been fully adopted by Arizona and submitted formally to EPA for approval into 

the SIP. See 40 CFR part 51, appendix V, section 2.3. We note that because 

ADEQ’s rulemaking process here is solely for purposes of adopting the 2012 

Supplement as a SIP revision under CAA section 110 and not for purposes of 

revising any of the statutes or regulations contained therein, we do not 

expect any significant changes between the proposed and final plans.
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ensure the accuracy of this version, but it is not the official version.

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statutes and regulations as a formal SIP submittal, following 

reasonable notice and public hearings, by late August 2012.9 ADEQ 

amended this request by letter dated June 14, 2012, to remove 

several statutes and regulations from the 2012 Supplement.10

We are proposing to act on the 2009 Infrastructure 

Submittal, as supplemented and amended by the 2012 Supplement. 

We refer to the 2009 Infrastructure Submittal and 2012 

Supplement collectively as the “2009 Infrastructure SIP.” 

III. EPA’s Evaluation 

To determine whether the CAA section 110(a)(2)(E)(ii) 

requirements are satisfied, EPA must determine whether the State 

SIP has adequate board composition and disclosure requirements 

under section 128 of the CAA. In their 2009 Infrastructure 

Submittal and 2012 Supplement, Arizona submitted unofficial 

copies of Title 38, Chapter 3, Article 8 Conflict of Interest of 

Officers and Employees provisions to address the section 128 

requirements. The June 2012 Supplement also included Arizona 

Revised Statute § 49-478, which addresses compositional 

requirements for county hearing boards. We are proposing to 

 

9 See letter dated June 1, 2012, from Eric C. Massey, Air Quality Director, 

ADEQ, to Jared Blumenfeld, Regional Administrator, EPA Region 9.

10 See letter dated June 14, 2012, from Eric C. Massey, Air Quality Director, 

ADEQ, to Jared Blumenfeld, Regional Administrator, EPA Region 9.
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ensure the accuracy of this version, but it is not the official version.

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approve these statutory provisions into the SIP as nonregulatory materials.

11

 A. Evaluation of 128(a)(1) Board Composition Requirements

As explained further in our Technical Support Document 

(TSD),12 Arizona has four heads of executive agencies that 

approve permits and enforcement orders under the Clean Air Act: 

the Director of Arizona Department of Environmental Quality 

(ADEQ), and the Control Officer of each of the following three 

agencies: Maricopa County Air Quality Department (AQD), Pima

County Department of Environmental Quality (DEQ), and Pinal 

County Air Quality Control District (AQCD). Permit and 

enforcement order appeals at the state level are heard by an 

administrative law judge in Arizona’s Office of Administrative 

Hearings, while those at the county level are heard by an Air 

Quality Hearing Board in each respective county (Maricopa, Pima, 

and Pinal). The only boards in Arizona that approve permits and 

enforcement orders are the Air Quality Hearing Boards in 

Maricopa, Pima, and Pinal counties, which may hear permit and 

enforcement order appeals and take actions to sustain, modify, 

or reverse (for permits) or affirm or modify (for enforcement 

 

11 Copies of these Arizona statutes are included in the 2012 Supplement, which 

is available in the docket for this action and online at 

http://www.regulations.gov, docket number EPA-R09-OAR-2012-0398.

12 Our Technical Support Document (TSD) describes our evaluation in more 

detail and is available in the public docket for this rulemaking, which may 

be accessed online at http://www.regulations.gov, docket number EPA-R09-OAR2012-0398.
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on July 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

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orders) the actions of each county’s respective Control Officer. 

These boards are subject to the board membership requirements of 

section 128(a)(1).

ARS 49-478(B) establishes the compositional requirements of 

the county Air Quality Hearing Boards, namely that they consist 

of five members and that “[a]t least three members shall not 

have a substantial interest, as defined in section 38-502, in 

any person required to obtain a permit pursuant to [Title 49, 

Chapter 3 (“Air Quality”), Article 3 (“County Air Pollution 

Control”)].” It is important to note that while this statute 

explicitly addresses interests in persons required to obtain 

permits, it does not address “substantial interest” with respect 

to interests in persons subject to enforcement orders.

Pima County Code 17.04.190 (“Composition”) generally 

mirrors the language or ARS 49-478 but also includes the 

following requirement in subsection B: “At least a majority of 

the hearing board members shall not individually have a 

substantial interest in an emission source subject to permits or 

enforcement orders issued pursuant to this title. Substantial 

interest means any interest other than a remote interest as 

defined in A.R.S. 38-502, paragraph 10.” Thus, this local 

regulation extends the majority membership requirement of ARS 

49-478 to interests in persons subject to enforcement orders. 
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ensure the accuracy of this version, but it is not the official version.

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However, this regulation has not been submitted for 

incorporation into the Arizona SIP.

Maricopa County Air Pollution Control Regulation, Rule 100, 

Section 108 also mirrors the language of ARS 49-478 but its 

majority membership requirement is limited to substantial 

interests “in any person required to obtain an air pollution 

permit” (i.e., it does not address persons subject to 

enforcement orders). Arizona’s 2009 Infrastructure Submittal and 

2012 Supplement did not cite any such provisions for Pinal 

County.

ARS 49-478 in conjunction with the definitions of 

“substantial interest” and “remote interest” in ARS 38-502, 

which we propose to approve into the Arizona SIP, satisfy the 

“public interest” and “significant income” requirements of CAA 

section 128(a)(1) for the county boards, but only with respect 

to interests in persons subject to permits. ARS 49-478 does not 

specifically reference interests in persons subject to 

enforcement orders. We view this as a very narrow deficiency in 

the State SIP but one that nonetheless compels disapproval of 

the State’s 128(a)(1) board composition provisions. 

EPA takes very seriously a proposal to disapprove a state 

plan, as we believe that it is preferable, and preferred in the 

provisions of the Clean Air Act, that these requirements be 
This document is a prepublication version signed by EPA Regional 

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ensure the accuracy of this version, but it is not the official version.

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implemented through state plans. A state plan need not contain 

exactly the same provisions that EPA might require, but EPA must 

be able to find that the state plan is consistent with the 

requirements of the Act. Further, EPA’s oversight role requires 

that it assure consistent implementation of Clean Air Act 

requirements by states across the country, even while 

acknowledging that individual decisions from source to source or 

state to state may not have identical outcomes. In this 

instance, we believe that the 2009 Infrastructure SIP mostly

meets the requirements of 128(a)(1) with respect to significant 

income and representing the public interest, except that the 

submitted provisions do not specifically address “substantial 

interest” with respect to interests in persons subject to 

enforcement orders. As a result, EPA believes this proposed 

disapproval is the only path that is consistent with the Act at 

this time. Based on the content of Pima County Code 17.04.190, 

we believe that this narrow deficiency can be cured by Maricopa 

and Pinal counties amending their regulations to mirror Pima 

County Code 17.04.190, and by ADEQ submitting such amended 

regulations for Pima, Maricopa, and Pinal counties as a SIP 

revision. 

 B. Evaluation of 128(a)(2) Disclosure Requirements
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Administrator Jared Blumenfeld on July 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

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Arizona’s statutes governing disclosure of interests are 

found in ARS Title 38, Chapter 3, Article 8, which ADEQ 

submitted as a revision to the Arizona SIP. As further explained 

in our TSD, the conflict of interest requirements under Article 

8 apply to all those individuals that approve permits and 

enforcement orders in the first instance or on appeal, including 

the Director of ADEQ, the administrative law judges of the state 

Office of Administrative Hearings, the Air Pollution Control 

Officers of the three relevant counties (Maricopa, Pima, and 

Pinal), and the members of the Air Quality Hearing Boards in 

each of the three counties.

ARS 38-503 is the heart of the disclosure provisions in 

Article 8. In particular, ARS 38-503(B) reads as follows: “Any 

public officer or employee who has, or whose relative has, a 

substantial interest in any decision of a public agency shall 

make known such interest in the official records of such public 

agency and shall refrain from participating in any manner as an 

officer or employee in such decision.” We interpret “any 

decision of a public agency” to include both permit and 

enforcement order approvals. ARS 38-502(3) defines “make known” 

as filing a paper or a copy of relevant meeting minutes that 

fully discloses a substantial interest and such filings must be 
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ensure the accuracy of this version, but it is not the official version.

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maintained in a special file open to public inspection pursuant 

to ARS 38-509.

The disclosure of “a substantial interest in any decision 

of a public agency” covers a wide array of potential conflicts, 

because “remote interest” is narrowly defined, and Article 8 

applies to all individuals that approve permits and enforcement 

orders under the CAA. Thus, upon Article 8 being approved into 

the Arizona SIP, the State and counties of Arizona will meet the 

CAA section 128(a)(2) requirement that “any potential conflicts 

of interest... be adequately disclosed.”

IV. Proposed Action

EPA has evaluated the 2009 Infrastructure SIP and the 

existing provisions of the Arizona SIP for compliance with the 

CAA section 110(a)(2)(E)(ii) requirements for the 1997 8-hour 

ozone and PM2.5 NAAQS and the 2006 PM2.5 NAAQS. Our TSD contains 

more detailed evaluations and is available in the public docket

for this rulemaking, which may be accessed online at 

http://www.regulations.gov, docket number EPA-R09-OAR-2012-0398.

Based upon this analysis, EPA proposes to approve Arizona’s

2009 Infrastructure SIP with respect to the following 

infrastructure SIP requirements:
This document is a prepublication version signed by EPA Regional 

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ensure the accuracy of this version, but it is not the official version.

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Section 110(a)(2)(E)(ii) (in part): 128(a)(2) relating to 

potential conflicts of interest by members of any state 

board or body.

In addition, we are proposing to approve into the SIP 

certain statutory provisions included in the 2009 Infrastructure 

SIP, as discussed in the TSD:13

ARS Title 38, Chapter 3, Article 8 (“Conflict of Interest 

of Officers and Employees”)

ARS 49-435 (“Hearings on orders of abatement”)

ARS 49-461 (“Violations; order of abatement”)

ARS 49-478 (“Hearing board”)

ARS 49-482 (“Appeals to hearing board”)

ARS 49-490 (“Hearings on orders of abatement”)

Simultaneously, we are proposing to disapprove Arizona’s

2009 Infrastructure SIP with respect to the following 

infrastructure SIP requirements:

Section 110(a)(2)(E)(ii) (in part): 128(a)(1) relating to 

“significant income” and representing the “public interest” 

board composition requirements for Pima, Maricopa, and 

Pinal counties.

 

13 Copies of these Arizona statutes and regulations are included in the 2012 

Supplement, which is available in the docket for this action and online at 

http://www.regulations.gov, docket number EPA-R09-OAR-2012-0398.
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As explained more fully in the TSD, we are proposing to 

disapprove the 2009 Infrastructure SIP with respect to this 

requirement of CAA section 110(a)(2)(E)(ii) because the Arizona 

SIP does not fully satisfy the statutory requirements for board 

composition under section 128(a)(1) of the Act. 

Section 110(l) of the Act prohibits EPA from approving any 

SIP revision that would interfere with any applicable 

requirement concerning attainment and reasonable further 

progress (RFP) or any other applicable requirement of the Act. 

The portion of 110(a)(2)(E)(ii) of the 2009 Infrastructure SIP 

that we are proposing to approve, as explained in the TSD, would 

improve the SIP by replacing obsolete statutes or regulations 

and by updating the state and local agencies’ SIP implementation 

and enforcement authorities. We propose to determine that our 

approval of this element of the 2009 Infrastructure SIP would 

comply with CAA section 110(l) because the proposed SIP revision 

would not interfere with the on-going process for ensuring that 

requirements for RFP and attainment of the NAAQS are met, and 

the submitted SIP revision clarifies and updates the SIP. Our 

TSD contains a more detailed discussion of our evaluation.

Under section 179(a) of the CAA, final disapproval of a 

submittal that addresses a requirement of part D, title I of the 

CAA (CAA sections 171-193) or is required in response to a 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on July 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

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finding of substantial inadequacy as described in CAA section 

110(k)(5) (SIP Call) starts a sanctions clock. The 2009 

Infrastructure SIP was not submitted to meet either of these 

requirements. Therefore, any action we take to finalize the 

described partial disapprovals will not trigger mandatory 

sanctions under CAA section 179. 

In addition, CAA section 110(c)(1) provides that EPA must 

promulgate a Federal Implementation Plan (FIP) within two years 

after finding that a State has failed to make a required 

submission or disapproving a State implementation plan 

submission in whole or in part, unless EPA approves a SIP 

revision correcting the deficiencies within that two-year 

period.

V. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

This action is not a "significant regulatory action" under 

the terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 

1993) and is therefore not subject to review under the EO. 

B. Paperwork Reduction Act

This action does not impose an information collection 

burden under the provisions of the Paperwork Reduction Act, 44 

U.S.C. 3501 et seq, because this proposed partial approval and 

partial disapproval of SIP revisions under CAA section 110 will 
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ensure the accuracy of this version, but it is not the official version.

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not in-and-of itself create any new information collection 

burdens but simply proposes to approve certain State 

requirements, and to disapprove certain other State 

requirements, for inclusion into the SIP. Burden is defined at 

5 CFR 1320.3(b).

C. 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. For purposes 

of assessing the impacts of today's rule on small entities, 

small entity is defined as: (1) a small business as defined by 

the Small Business Administration’s (SBA) regulations at 13 CFR 

121.201; (2) a small governmental jurisdiction that is a 

government of a city, county, town, school district or special 

district with a population of less than 50,000; and (3) a small 

organization that is any not-for-profit enterprise which is 

independently owned and operated and is not dominant in its 

field. 
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After considering the economic impacts of today’s proposed

rule on small entities, I certify that this proposed action will 

not have a significant impact on a substantial number of small 

entities. This proposed rule does not impose any requirements or 

create impacts on small entities. This proposed partial SIP

approval and partial SIP disapproval under CAA section 110 will 

not in-and-of itself create any new requirements but simply 

proposes to approve certain State requirements, and to 

disapprove certain other State requirements, for inclusion into 

the SIP. Accordingly, it affords no opportunity for EPA to 

fashion for small entities less burdensome compliance or 

reporting requirements or timetables or exemptions from all or 

part of the rule. Therefore, this action will not have a 

significant economic impact on a substantial number of small 

entities. 

We continue to be interested in the potential impacts of 

this proposed rule on small entities and welcome comments on 

issues related to such impacts.

D. Unfunded Mandates Reform Act

This action contains no Federal mandates under the 

provisions of Title II of the Unfunded Mandates Reform Act of 

1995 (UMRA), 2 U.S.C. 1531-1538 for State, local, or tribal 

governments or the private sector.” EPA has determined that the 
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ensure the accuracy of this version, but it is not the official version.

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proposed partial approval and partial disapproval action 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 

action proposes to approve certain pre-existing requirements, 

and to disapprove certain other 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 proposed 

action.

E. Executive Order 13132, Federalism

Executive Order 13132, entitled “Federalism” (64 FR 43255, 

August 10, 1999), 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.”

This action does not have federalism implications. It will 

not have substantial direct effects on the States, on the 
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Administrator Jared Blumenfeld on July 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

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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 proposes to approve certain State 

requirements, and to disapprove certain other State 

requirements, for inclusion into the SIP and does not alter the 

relationship or the distribution of power and responsibilities 

established in the Clean Air Act. Thus, Executive Order 13132 

does not apply to this action.

F. Executive Order 13175, Coordination with Indian Tribal 

Governments

This action does not have tribal implications, as specified 

in Executive Order 13175 (65 FR 67249, November 9, 2000), 

because the SIP on which EPA is proposing action would not 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. Thus, Executive Order 13175 does not 

apply to this proposed action. 

G. Executive Order 13045, Protection of Children from 

Environmental Health Risks and Safety Risks

EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as 

applying only to those regulatory actions that concern health or 

safety risks, such that the analysis required under section 5-
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on July 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

22

501 of the EO has the potential to influence the regulation. 

This proposed action is not subject to EO 13045 because it is 

not an economically significant regulatory action based on 

health or safety risks subject to Executive Order 13045 (62 FR 

19885, April 23, 1997). This proposed partial approval and 

partial disapproval under CAA section 110 will not in-and-of 

itself create any new regulations but simply proposes to approve 

certain State requirements, and to disapprove certain other 

State requirements, for inclusion into the SIP.

H. Executive Order 13211, Actions that Significantly Affect 

Energy Supply, Distribution, or Use

This proposed rule is not subject to Executive Order 13211 

(66 FR 28355, May 22, 2001) because it is not a significant 

regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and 

Advancement Act of 1995 (“NTTAA”), Public Law No. 104-113, 12(d) 

(15 U.S.C. 272 note) directs EPA to use voluntary consensus 

standards in its regulatory activities unless to do so would be 

inconsistent with applicable law or otherwise impractical. 

Voluntary consensus standards are technical standards (e.g., 

materials specifications, test methods, sampling procedures, and 

business practices) that are developed or adopted by voluntary 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on July 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

23

consensus standards bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations when the Agency decides not 

to use available and applicable voluntary consensus standards.

The EPA believes that this proposed action is not subject 

to requirements of Section 12(d) of NTTAA because application of 

those requirements would be inconsistent with the Clean Air Act.

J. Executive Order 12898: Federal Actions to Address 

Environmental Justice in Minority Populations and LowIncome Population

Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) 

establishes federal executive policy on environmental justice. 

Its main provision directs federal agencies, to the greatest 

extent practicable and permitted by law, to make environmental 

justice part of their mission by identifying and addressing, as 

appropriate, disproportionately high and adverse human health or 

environmental effects of their programs, policies, and 

activities on minority populations and low-income populations in 

the United States. 

EPA lacks the discretionary authority to address 

environmental justice in this proposed rulemaking.
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on July 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

24

List of Subjects in 40 CFR Part 52

Air pollution control, Environmental protection, Nitrogen 

dioxide, Ozone, Particulate Matter, Volatile organic compounds. 

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

_________________ _____________________________________

Date Jared Blumenfeld,

Regional Administrator,

Region IX