Federal Register/Vol. 66, No. 197/Thursday, October 11, 2001/Rules and Regulations

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Hydrocarbons,

Incorporation by reference, Nitrogen

dioxide, Ozone, Reporting and

recordkeeping requirements.

Dated: October 3, 2001.

Thomas C. Voltaggio,

Acting Regional Administrator, Region III.

PART 52-[AMENDED]

§ 52.2020 [Amended]

Accordingly, the addition of

§ 52.2020(c)(174) is withdrawn as of

October 11, 2001.

[FR Doc. 01-25548 Filed 10-10-01; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[PA-4118a; FRL-7079-4]

Approval and Promulgation of Air

Quality Implementation Plans;

Pennsylvania; VOC and NOx RACT

Determinations for Nine Individual

Sources Located in the PhiladelphiaWilmington-Trenton Area; Withdrawal

of Direct Final Rule

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Withdrawal of direct final rule.

SUMMARY: Due to receipt of a letter of

adverse comment, EPA is withdrawing

the direct final rule approving revisions

which establish reasonably available

control technology (RACT) requirements

for nine major sources of volatile

organic compounds (VOC) and nitrogen

oxides (NOx) located in the

Philadelphia-Wilmington-Trenton

ozone nonattainment area. In the direct

final rule published on August 31, 2001

(66 FR 45928), EPA stated that if it

received adverse comment by October 1,

2001, the rule would be withdrawn and

not take effect. EPA subsequently

received adverse comments from the

Citizens for Pennsylvania's Future

(PennFuture). EPA will address the

comments received in a subsequent

final action based upon the proposed

action also published on August 31,

2001 (66 FR 45953). EPA will not

institute a second comment period on

this action.

DATES: The direct final rule is

withdrawn as of October 11, 2001.

FOR FURTHER INFORMATION CONTACT:

Harold A. Frankford at (215) 814-2108.

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Hydrocarbons,

Incorporation by reference, Nitrogen

dioxide, Ozone, Reporting and

recordkeeping requirements.

Dated: October 3, 2001.

Thomas C. Voltaggio,

Acting Regional Administrator, Region IlL

PART 52-[AMENDED]

§ 52.2020 [Amended]

Accordingly, the addition of

§ 52.2020(c)(184) is withdrawn as of

October 11, 2001.

[FR Doc. 01-25547 Filed 10-10-01; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[PA-4148a; FRL-7079-3]

Approval and Promulgation of Air

Quality Implementation Plans;

Pennsylvania; VOC and NOx RACT

Determinations for Three Individual

Sources Located in the PhiladelphiaWilmington-Trenton Area; Withdrawal

of Direct Final Rule

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Withdrawal of direct final rule.

SUMMARY: Due to receipt of a letter of

adverse comment, EPA is withdrawing

the direct final rule approving revisions

which establish reasonably available

control technology (RACT) requirements

for three major sources of volatile

organic compounds (VOC) and nitrogen

oxides (NOx) located in the

Philadelphia-Wilmington-Trenton

ozone nonattainment area. In the direct

final rule published on August 31, 2001

(66 FR 45938), EPA stated that if it

received adverse comment by October 1,

2001, the rule would be withdrawn and

not take effect. EPA subsequently

received adverse comments from the

Citizens for Pennsylvania's Future

(PennFuture). EPA will address the

comments received in a subsequent

final action based upon the proposed

action also published on August 31,

2001 (66 FR 45954). EPA will not

institute a second comment period on

this action.

DATES: The direct final rule is

withdrawn as of October 11, 2001.

FOR FURTHER INFORMATION CONTACT:

Harold A. Frankford at (215) 814-2108.

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Hydrocarbons,

Incorporation by reference, Nitrogen

dioxide, Ozone, Reporting and

recordkeeping requirements.

Dated: October 3, 2001.

Thomas C. Voltaggio,

Acting Regional Administrator, Region IlL

PART 52-[AMENDED]

§ 52.2020 [Amended]

Accordingly, the addition of

§ 52.2020(c)(182) is withdrawn as of

October 11, 2001.

[FR Doc. 01-25546 Filed 10-10-01; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[AZ105-0045; FRL-7063-1]

Approval and Promulgation of

Implementation Plans; ArizonaMaricopa Nonattainment Area; PM-10

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is approving under the

Clean Air Act (CAA or Act), as a

revision to the Arizona State

Implementation Plan (SIP), a general

permit rule that provides for the

expeditious implementation of best

management practices (BMPs) to reduce

particulate matter (PM-10) from

agricultural sources in the Maricopa

County (Phoenix) PM-10 nonattainment

area. EPA is approving the general

permit rule as meeting the "reasonably

available control measure" (RACM)

requirements of the Act.

EFFECTIVE DATE: November 13, 2001.

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 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, Library, 3033 N. Central

Avenue, Phoenix, Arizona 85012.

FOR FURTHER INFORMATION CONTACT: John

Ungvarsky, Air Division, U.S.

51869

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Environmental Protection Agency, EPA

Region 9, 75 Hawthorne Street (AIR2),

San Francisco, CA 94105, (415) 744-

1286 or ungvarsky.john@epa.gov. This

document is also available as an

electronic file on EPA's Region 9 Web

page at http://www.epa.gov/regionO9/

air.

SUPPLEMENTARY INFORMATION

I. Background

A. Air Quality Status

Portions of Maricopa County I are

designated nonattainment for the PM10 national ambient air quality

standards (NAAQS) 2 and were

originally classified as "moderate"

pursuant to section 188(a) of the CAA.

56 FR 11101 (March 15, 1991). On May

10, 1996, EPA reclassified the Maricopa

County PM-10 nonattainment area to

"serious" under CAA section 188(b)(2).

61 FR 21372. Having been reclassified,

Phoenix is required to meet the serious

area requirements in CAA section

189(b).

While the Phoenix PM-10

nonattainment area is currently

classified as serious, today's action

relates only to the moderate area

statutory requirements for RACM.

However, Arizona developed legislation

and a general permit rule applicable to

agricultural sources of PM-10 when the

area had already been reclassified to

serious. Therefore the State's focus was

on the serious area statutory

requirements for "best available control

measures" (BACM). RACM is generally

considered to be a subset of BACM. As

a result, in order to evaluate whether the

general permit rule meets the RACM

requirements for the purpose of this

rulemaking, EPA referred to portions of

the State's serious area SIP submittal. 3

B. CAA Planning Requirements and

EPA Guidance

The air quality planning requirements

for PM-10 nonattainment areas are set

out in subparts 1 and 4 of title I of the

Clean Air Act. Those states containing

initial moderate PM-10 nonattainment

areas were required to submit, among

other things, by November 15, 1991

provisions to assure that RACM

1 "Maricopa," "Maricopa County" and "Phoenix"

are used interchangeably throughout this final rule

to refer to the nonattainment area.

2 There are two PM-10 NAAQS, a 24-hour

standard and an annual standard. 40 CFR 50.6.

3 "Submittal of State Implementation Plan

revision for the Agricultural Best Management

program in the Maricopa County PMo

Nonattainment Area" from Jacqueline E. Schafer,

Arizona Department of Environmental Quality

(ADEQ), to Laura Yoshii, EPA, June 13, 2001. See

also the proposal for today's rulemaking at 66 FR

34598, 34599-34600 (June 29, 2001).

(including such reductions in emissions

from existing sources in the area as may

be obtained through the adoption, at a

minimum, of reasonably available

control technology (RACT)) shall be

implemented no later than December

10, 1993. CAA sections 172(c)(1) and

189(a)(1)(C). Since that deadline has

passed, EPA has concluded that the

required RACM/RACT must be

implemented "as soon as possible."

Delaneyv. EPA, 898 F.2d 687, 691 (9th

Cir. 1990). EPA has interpreted this

requirement to be "as soon as

practicable." See 55 FR 41204, 41210

(October 1, 1990) and 63 FR 28898,

28900 (May 27, 1998).

EPA has issued a "General

Preamble" 4 describing EPA's

preliminary views on how the Agency

intends to review SIPs and SIP revisions

submitted under title I of the Act,

including those state submittals

containing moderate PM-10

nonattainment area SIP provisions. The

methodology for determining RACM/

RACT is described in detail in the

General Preamble. 57 FR 13498, 13540-

13541. In short and as pertinent here,

EPA suggests starting to define RACM

with the list of available control

measures for fugitive dust in Appendix

C1 to the General Preamble and adding

to this list any additional control

measures proposed and documented in

public comments. Any measures that

apply to emission sources of PM-10 and

that are de minimis and any measures

that are unreasonable for technology

reasons or because of the cost of the

control in the area can then be culled

from the list. In addition, potential

RACM may be culled from the list if a

measure cannot be implemented on a

schedule that would advance the date

for attainment in the area. 57 FR 13498,

13560; 57 FR 18070, 18072 (April 28,

1992).

PM-10 nonattainment areas

reclassified as serious under section

188(b)(2) of the CAA are required to

submit, within 18 months of the area's

reclassification, SIP revisions providing

for, among other things, the

implementation of BACM no later than

four years from the date of

reclassification. The SIP must also

provide for attainment of the PM-10

NAAQS by December 31, 2001, unless

EPA grants an extension of that

deadline. See CAA sections 188(c)(2)

and (e); 189(b). On August 16, 1994,

EPA issued an Addendum to the

General Preamble that describes the

4 See "State Implementation Plans; General

Preamble for the Implementation of Title I of the

Clean Air Act Amendments of 1990," (General

Preamble) 57 FR 13498 (April 16, 1992) and 57 FR

18070 (April 28, 1992).

Agency's preliminary views on the CAA

provisions for serious area PM-10

nonattainment SIPs. 59 FR 41998. The

Addendum provides that for moderate

PM-10 areas reclassified as serious, the

RACM requirements are carried over

and elevated to a higher level of

stringency, i.e., BACM. 59 FR 41998,

42009.

II. Proposed Action

In May 1998, Arizona Governor Hull

signed into law Senate Bill 1427 (SB

1427) which revised title 49 of the

Arizona Revised Statutes (ARS) by

adding section 49-457. This legislation

established an Agricultural Best

Management Practices (BMP)

Committee that was required to adopt

by rule by June 10, 2000, an agricultural

general permit specifying BMPs for

regulated agricultural activities to

reduce PM-10 emissions in the

Maricopa PM-10 nonattainment area.

ARS 49-457.A-F. Subsection M of ARS

49-457 provided for the initiation of

BMP implementation through the

commencement of an education

program by June 10, 2000.

On September 4, 1998, the State

submitted ARS 49-457 to EPA for

inclusion in the Arizona SIP as meeting

the RACM requirements of CAA section

189(a)(1)(C). On June 29, 1999, EPA

approved ARS 49-457 as meeting the

RACM requirements of the CAA. 64 FR

34726. 5

Pursuant to ARS 49-457, the

Agricultural BMP Committee adopted

the agricultural general permit and

associated definitions, effective May 12,

2000, at Arizona Administrative Code

(AAC) R18-2-610, "Definitions for R18-

2-611," and 611, "Agricultural PM-10

General Permit; Maricopa PM10

Nonattainment Area" (collectively,

general permit rule). On July 11, 2000,

the State submitted AAC R18-2-610

and 611 to EPA as a revision to the

Arizona SIP.6

On June 29, 2001, EPA proposed to

approve ACC R18-2-610 and 611 under

section 110(k)(3) of the CAA as meeting

the requirements of sections 110(a) and

189(a)(1)(C). EPA also concluded that its

proposed approval of ACC R18-2-610

and 611 meets the requirements of CAA

section 110(1). 66 FR 34598.

5 For further information on this legislation and

its relationship to the history of PM-10 planning in

the Phoenix area, see EPA's proposed action. 66 FR

34598, 34599.

6 In evaluating this submittal, EPA relied on

information submitted on June 13, 2001 by the State

as part of its serious area PM-10 plan for Phoenix:

"Submittal of State Implementation Plan revision

for the Agricultural Best Management program in

the Maricopa County PM10 Nonattainment Area"

from Jacqueline E. Schafer, ADEQ, to Laura Yoshii,

EPA, June 13, 2001.

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III. Comments on Proposed Rule and

EPA Responses

EPA received two comment letters on

its proposed action. The comments were

submitted by Dan Thelander, Chairman,

Governor's Agricultural Best

Management Practices Committee and

Joy E. Herr-Cardillo, Arizona Center for

Law in the Public Interest (ACLPI). Mr.

Thelander expressed the BMP

Committee's support for EPA's proposed

approval of the general permit and

listed the factors and limitations that the

Committee addressed during the

development of the general permit.

ACLPI, in a July 30, 2001 letter, opposes

EPA's proposed action. EPA responds to

ACLPI's comments below.

Comment: ACLPI contends that the

general permit rule fails to meet the

requirement of CAA section 172(c)(1)

that SIPs for nonattainment areas "shall

provide for the implementation of all

reasonably available control measures."

ACLPI claims that the rule fails to meet

this requirement because the BMP

Committee identified a variety of clearly

available and feasible control measures

that are included in the rule as BMPs,

but only requires commercial farmers to

implement one BMP from each of three

categories. As a result, ACLPI claims,

the farmer determines which BMP will

be implemented without any limiting

parameters; and only one BMP is

required under each category even

where the implementation of more than

one would be technologically and

economically feasible, a result clearly

prohibited by the CAA and EPA policy.

Response: As relevant to today's

action, Arizona's obligation under the

CAA is to provide for the

implementation of RACM for the

agricultural source category. 7 In order to

meet this obligation, the State had to

determine what requirement would be

not only technologically and

economically feasible but also

reasonable for controlling this source

category in the Phoenix area.

This determination was particularly

challenging given the variety,

complexity and practical realities of

farming in the Phoenix area. In its

proposed action on the general permit

rule and accompanying technical

support document (TSD), EPA

explained the multi-year/multi-party

process for developing the BMPs

ultimately adopted by the BMP

Committee. See 66 FR 34598, 34601. As

a result of the diversity and constraints

of farming operations, the Committee

7 Nevertheless, as EPA stated in the proposed

rulemaking, EPA believes that the general permit

rule far exceeds the RACM requirements of the

CAA. See 66 FR 34598, 34603.

concluded that farmers need flexibility

to tailor PM-10 controls to their

particular circumstances and that

mandating a single, specific control for

each individual farm activity would be

unreasonable. The Committee did,

however, determine that it could

subdivide farming operations in

Maricopa into three distinct categories

for the purposes of developing the

appropriate controls. As a result, the

Committee created a menu of control

options from which the farmer must

select a minimum of one for each of the

tillage and harvest, cropland and

noncropland categories.

EPA concurs with the Committee's

assessment and consequently proposed

that the requirement to implement at

least one control from a list of control

options for each of three categories of

operations constitutes a reasonable

control requirement for the agricultural

sector in the Phoenix area.

A requirement that an individual

source select one control method from

a list, but allowing the source to select

which is most appropriate for its

situation, is a common and accepted

practice for the control of dust. For

example, in its PM-10 federal

implementation plan (FIP) for Phoenix,

EPA promulgated a RACM rule

applicable to, among other things,

unpaved parking lots, unpaved roads

and vacant lots. The rule allows owners

and operators to choose one of several

listed control methods (pave, apply

chemical stabilizers or apply gravel). 40

CFR 52.128(d). In the case of the FIP,

those subject to the fugitive dust rule

were given a choice of control methods

in order to accommodate their financial

circumstances. See also South Coast Air

Quality Management District

(SCAQMD) Rule 403 (providing for

alternative compliance mechanisms for

the control of fugitive dust from

earthmoving, disturbed surface areas,

unpaved roads etc.); and SCAQMD Rule

1186 (requiring owners/operators of

certain unpaved roads the option to

pave, chemically stabilize, or install

signage, speed bumps or maintain

roadways to inhibit speeds greater than

15 mph). EPA proposed to approve

these SCAQMD rules as meeting the

RACM and/or BACM requirements of

the CAA on August 11, 1998 (63 FR

42786) and took final action approving

them on December 9, 1998 (63 FR

67784). 8

8 See also EPA's approval of Maricopa County

Environmental Services Department (MCESD) Rule

310 as meeting the RACM/BACM requirements (62

FR 41856, August 4, 1997) and EPA's proposal to

approve updated Rule 310 and MCESD Rule 310.01

as meeting the same requirements (65 FR 19964,

April 13, 2000).

Allowing sources the discretion to

choose from a range of specified options

is particularly important for the

agricultural sector because of the

variable nature of farming. As a

technical matter, neither EPA nor the

State is in a position to dictate what

precise control method is appropriate

for a given farm activity at a given time

in a given locale. The decision as to

which control method from an array of

methods is appropriate is best left to the

individual farmer. Moreover, the

economic circumstances of farmers vary

considerably. As a result, it is

imperative that flexibility be built into

any PM-10 control measure for the

agricultural source category whether

that measure is required to meet the

RACM or BACM requirements of the

Act.

Comment: ACLPI states that the CAA

expressly provides that all RACM must

be implemented by December 10, 1993,

citing CAA sections 172(c)(1) and

189(a)(1)(C). Citing Delaneyv. EPA, 898

F. 2d 687, 691 (9th Cir. 1990), ACLPI

contends that since that deadline has

passed, RACM must be implemented "as soon as possible." ACLPI states that

the general permit rule does not require

implementation of a single BMP until

December 31, 2001 and that this is

clearly too little too late under the CAA.

Response: EPA addressed this issue in

its proposed approval of the general

permit rule by explaining that CAA

section 189(a)(1)(C), as interpreted by

the Agency under the current

circumstances, requires the

implementation of RACM as soon as

practicable. EPA further explained that

the Agency addressed Arizona's

requirements regarding the timing of the

implementation of the BMPs in its final

approval of ARS 49-457. 64 FR 34726

(June 29, 1999). It is that enabling

legislation that dictates the December

31, 2001 deadline. The general permit

rule simply carries out its mandate by

reiterating the statutory deadline. 66 FR

34598, 34600. Therefore, ACLPI, if it

wished to contest the issue of whether

the December 31, 2001 deadline meets

the Delaney test, should have

challenged that rule on that basis.

Nevertheless, EPA briefly explains the

reasoning for its conclusion below.

In 1996, the State of Arizona

conducted a field study (known as the

microscale study) of PM-10 sources at

various monitoring sites in Phoenix.

Following the study, the results were

modeled and formed the basis for the

State's "Plan for Attainment of the 24-

hour PM-10 Standard-Maricopa County

Nonattainment Area," May 1997

(microscale plan). It was at that time

that the State first discovered that

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agricultural activities did in fact

constitute significant sources of PM-10

in Phoenix, and thus required measures

to control them. Because it did not

provide for the expeditious

implementation of reasonably and best

available control measures for these

agricultural sources, EPA disapproved

the microscale plan for that purpose. 62

FR 41856 (August 4, 1997).

One year after disapproving the

microscale plan, EPA issued a final FIP

that addressed, among other things,

PM-10 emissions from agricultural

sources in Phoenix. In the FIP, EPA

promulgated an enforceable

commitment, codified at 40 CFR 52.127,

to adopt, and begin implementing

RACM for agricultural fields and aprons

by June 2000. 63 FR 41326, 41350

(August 3, 1998).

In developing the FIP, EPA initially

evaluated rules in the South Coast Air

Basin, the only existing agricultural

control measures for PM-10 in the

country. However, agricultural sources,

unlike many stationary sources which

can have many common design features,

whether located in California or New

Jersey, vary by factors such as regional

climate, soil type, growing season, crop

type, water availability, and relation to

urban centers. Therefore each PM-10

agricultural strategy is necessarily based

on local circumstances. With respect to

Phoenix and the South Coast, EPA

determined that the two areas differ in

a number of key characteristics. Based

on this initial screening, EPA decided

that it would not be responsible to

propose the SCAQMD rules at that time

because the Agency could not

reasonably conclude that their

implementation would in fact result in

air quality benefits for the Maricopa

nonattainment area.

As a result of this conclusion, EPA

initiated a stakeholder process to

develop RACM in the form of BMPs for

Phoenix that eventually included

ADEQ, MCESD, the Natural Resources

Conservation Service of the U.S.

Department of Agriculture, the

Maricopa Association of Governments,

the Maricopa Farm Bureau, Arizona

Farm Bureau Federation, the University

of Arizona and others. Following

numerous meetings and discussions,

EPA concluded that the most feasible

approach for the FIP would be the

Agency's commitment to develop and

implement the BMPs on an expeditious

schedule. For a more detailed

discussion of EPA's efforts to develop

RACM for agricultural sources in

Phoenix, see EPA's FIP proposal at

15920, 15936 (April 1, 1998) and the

accompanying technical support

document.

As discussed above, on June 29, 1999,

EPA withdrew the FIP commitment and

approved in its place ARS 49-457

which embodies a commitment to adopt

by rule by June 10, 2000 a general

permit specifying BMPs. The statute

also provides for the initiation of a

public education program by June 10,

2000 and sets a final deadline of

December 31, 2001 for farmers to

comply with the BMPs. In its proposed

approval of ARS 49-457, EPA reiterated

its reasons for concluding that the

implementation schedule was as

expeditious as practicable:

In general, EPA believes that because

agricultural sources in the United States vary

by factors such as regional climate, soil type,

growing season, crop type, water availability,

and relation to urban centers, each PM-10

agricultural strategy is uniquely based on

local circumstances. Furthermore, EPA

determined that the goal of attaining the PM10 standards in Maricopa County with

respect to agricultural sources would be best

served by engaging all interested

stakeholders in a joint comprehensive

process on the appropriate mix of

agricultural controls to implement in

Maricopa County. EPA stated its belief that

this process, despite the additional time

needed to work through it, will ultimately

result in the best and most cost-effective

controls on agricultural sources in the

County.

In the PIP notices, EPA also explained its

intention to meet its RACM commitment by

developing and promulgating BMPs. Given

the number of potential BMPs, the variety of

crops types, the need for stakeholder input,

and the time necessary to develop the BMPs

into effective control measures, EPA believes

that the adoption and implementation

schedule in the PIP is as expeditious as practicable and meets the Act's 189(a)(1)(C)

requirement.

63 FR 71815, 71817 (December 30,

1998). EPA concluded that the

commitment in ARS 49-457 was

superior to that in the FIP because it

contains more substance and greater

procedural detail, and provides a final

implementation deadline. Id. 9

The BMPs have now been adopted

and EPA is today approving the general

permit rule into the Arizona PM-10 SIP

for Phoenix. Thus the December 31,

2001 final implementation deadline will

shortly be federally enforceable. Given

that (1) agricultural sources had never

been regulated anywhere in the country

except southern California; (2)

agricultural sources vary considerably

based on a number of factors; and (3)

EPA and ADEQ lacked expertise in

farming conditions and practices, EPA

believes that under five years from

9 In its final approval of ARS 49-457, EPA also

responded to ACLPL's comment claiming that the

implementation schedule is not sufficiently

expeditious. 64 FR 34726, 34729.

ground zero to final implementation is

a considerable accomplishment and

meets the Delaney test.

Comment: ACLPI, quoting from the

"Technical Support Document for

Quantification of Agricultural Best

Management Practices," Final Draft,

URS Corporation and Eastern Research

Group, Inc., November 1, 2000, charges

that because the general permit rule fails

to require any specific control measures,

and leaves it entirely to the permittee to

determine which BMPs will be

implemented, there is no way that the

State can know or meaningfully predict

what the effect of the rule will be.

ACLPI claims that, as a result, any

estimated emissions reduction is

entirely speculative and, thus,

inadequate under the CAA.

Response: The PM-10 emission

reductions attributable to the BMPs are

not at issue in this rulemaking. Here,

EPA is merely determining whether the

general permit rule meets the general

SIP requirements of CAA section 110(a)

and whether that rule represents,

pursuant to CAA section 189(a)(1)(C) a "reasonably available" level of control

and is scheduled to be implemented as

expeditiously as practicable. EPA will

consider the quantification of the

emission reductions from the general

permit rule in its forthcoming actions on

the State's reasonable further progress

and attainment demonstrations in its

serious area plan submittals.

Comment: ACLPI comments that the

State has proposed to revise the SIP to

include the general permit rule as both

a control and a contingency measure.

Citing CAA section 172(c)(9) and a

proposed EPA action on a Washington

SIP, ACLPI states that it makes no sense

to denominate the rule as a contingency

measure.

Response: This comment is also

beyond the scope of today's rulemaking

because EPA is not acting on the general

permit rule as meeting the Act's

contingency measure requirements. EPA

will address this issue in its

forthcoming actions on the State's

serious area PM-10 plan for the Phoenix

area.

IV. Final Action

For the reasons discussed above and

in the proposed rulemaking, EPA is

approving, under CAA section 110(k)(3),

ACC R18-2-610 and 611, the general

permit rule, as meeting the requirements

of CAA sections 110(a) and 189(a)(1)(C).

Moreover, EPA has concluded that its

approval of ACC R18-2-610 and 611

meets the requirements of section 110(1)

because the general permit rule

strengthens the Arizona PM-10 SIP for

the Maricopa County nonattainment

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area by providing specific BMPs in

place of the commitment to adopt BMPs

in ARS 49-457. The general permit rule

is also consistent with the development

of an overall plan capable of meeting the

CAA's PM-10 attainment requirements.

V. 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 13211,

"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 United

States Senate, the United States 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 rule is not a "major rule" as defined by 5 U.S.C.

804(2).

Under section 307(b)(1) of the CAA,

petitions for judicial review of this

action must be filed in the United States

Court of Appeals for the appropriate

circuit by December 10, 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 CAA

section 307(b)(2).

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Incorporation by

reference, Particulate matter, Reporting

and recordkeeping requirements.

Dated: September 10, 2001.

Mike Schulz,

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)(98) to read as

follows:

§52.120 Identification of plan.

(c) * * *

(98) Plan revisions were submitted on

July 11, 2000 by the Governor's

designee.

(i) Incorporation by reference.

(A) Arizona Administrative Code

R18-2-610 and R18-2-611 effective

May 12, 2000. * * * * *

(B) [Reserved]

[FR Doc. 01-25549 Filed 10-10-01; 8:45 am]

BILLING CODE 6560-50X-P

DEPARTMENT OF HEALTH AND

HUMAN SERVICES

42 CFR Part 51d

RIN 0930-AA09

Substance Abuse and Mental Health

Services Administration; Mental Health

and Substance Abuse Emergency

Response Criteria

AGENCY: Substance Abuse and Mental

Health Services Administration

(SAMHSA), HHS.

ACTION: Interim final rule.

SUMMARY: Section 3102 of the Children's

Health Act of 2000, Pub. L. 106-310,

amends section 501 of the Public Health

Service (PHS) Act (42 U.S.C. 290aa) to

add a new subsection (in) entitled

"Emergency Response." This newly

enacted subsection 501(m) authorizes

the Secretary to use up to, but no more

than, 2.5% of all amounts appropriated

under Title V of the PHS Act, other than

those appropriated under Part C, in each

51873

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