# + 2

(,1 1/,1(

Citation: 74 Fed. Reg. 57051 2009

Content downloaded/printed from HeinOnline (http://heinonline.org) Wed Oct 29 19:04:33 2014
-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License
-- The search text of this PDF is generated from uncorrected OCR text.Federal Register/Vol. 74, No. 211/Tuesday, November 3, 2009/Rules and Regulations

ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52 [EPA-R09-OAR-2009-0435; FRL-8976-3] Approval and Promulgation of Implementation Plans; Correctionsto the Arizona and Nevada State Implementation Plans
AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule.
SUMMARY: EPA is deleting certain statutes and rules thatwere erroneously approved by EPA under the Clean Air Act as part ofthe Arizona andNevada state implementation plans. The statutes that are the subject ofthis rule are from the Arizona state implementation plan. The rules that are the subject ofthis rule
were adoptedby the Pima County Health Department in Arizona and the State Environmental Commission, Clark County District Board ofHealth, and Washoe County District Board ofHealth in Nevada. The statutes andrules that EPA is deleting relate to general declarations ofpolicy, advisory committees, variances, and incidental fees and nuisance odors. EPA has determined that the continued presence ofthese statutory provisions andrules in the applicable state implementation plans is potentially confusing and thus harmful to affected sources, the state, local agencies, the general public and to EPA. The intended effect ofthis action is to delete these statutes andrules from the Arizona and Nevada state implementation plans. EPA is also correcting certain clerical and typographical errors in the codification ofthe Pima County portion ofthe Arizona plan. DATES: This rule is effective on January 4, 2010 without further notice, unless EPA receives adverse comments by December 3, 2009. Ifwe receive such comments, we will publish a timely withdrawal in the Federal Register to notify the public thatthis direct final rule will not take effect. ADDRESSES: Submit comments, identified by docket number EPA-R09- OAR-2009-0435, by one ofthe following methods: 1.FederaleRulemakingPortal: http:// www.regulations.gov. Follow the on-line instructions.

2. E-mail:allen.cynthia@epa.gov. 3.Mailordeliver:Cynthia Allen (AIR-4), U.S. Environmental Protection

'Section 110(k)(6) ofthe Clean Air Act, as amended in 1990, provides, "Whenever the Administrator determines that the Administrator's action approving, disapproving, orpromulgating Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901.

Instructions:All comments will be included in the public docket without change and maybe made available online athttp://www.regulations.gov, including any personal information provided, unless the comment includes Confidential Business Information (CBI)
or otherinformation whose disclosure is 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.govor e-mail. The http://www.regulations.gov portal is an "anonymous access" system, and EPA will not know your identity or contact information unlessyou provide it inthe body ofyour comment. Ifyou send e-mail directly to EPA,your e-mail address will be automatically captured and included as part ofthe public comment. IfEPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may notbe able to consider your comment.

Docket:The index to the docket for this action is available electronically at http://www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne Street, SanFrancisco, California. While all documents in the docket are listed in the index, some information maybe publicly available only at the hard copy location (e.g., copyrighted material), and
some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normalbusiness hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section. FOR FURTHER INFORMATION CONTACT: Cynthia Allen, Rules Office (AIR-4), U.S. Environmental Protection Agency, Region IX, (415) 947-4120, allen.cynthia@epa.gov. SUPPLEMENTARY INFORMATION: Throughout this document, "we," "us" and "our" refer to EPA. Table of Contents I.Why isEPA correcting the SIPs? II. What rules are being deleted? III. PublicComment and Final Action IV. Administrative Requirements I.Why is EPA correcting the SIPs?

The Clean Air Act (CAA or "Act")
was first enacted in 1970. In the 1970s and early 1980s, thousands of state and local agency regulations were submitted to EPA for incorporation into state

any plan or plan revision (orpart thereof), area designation, redesignation, classification or reclassification was in error, the Administrator may in the same manner as the approval, disapproval, implementation plans (SIPs) in order to fulfill the new federal requirements. In many cases, states submitted entire regulatory air pollution programs, including many elements notrequired by the Act. Due to time and resource constraints, EPA's review ofthese submittals focused primarily on the new substantive requirements, and we approved many other elements into the SIP with minimal review.

We now recognize that many ofthese elements were not appropriate for approval into the SIPs because they are not required for SIPs and are not related to the SIPs' purpose under CAA section 110(a) ofimplementing, maintaining, and enforcing the national ambient air quality standards. Examples of inappropriately-approved SIP elements include statutes and rules that consist of general statements ofpolicy; that govern local advisory boards; that specify incidental fees, method ofpayment, and refunds; and thatregulate nuisance odors. Most of the statutes and rules we are deleting in today's action fall under
one ofthese categories.

In addition, we are deleting certain variance-related provisions that were orphaned by a previous EPA rulemaking deleting most such provisions fromthe Nevada Division ofEnvironmental Protection (NDEP)portion ofthe Nevada SIP and the Pima County portion ofthe Arizona SIP. See EPA's proposed rule at 61 FR 38664 (July 25, 1996) and final rule at 62 FR 34641 (June27, 1997)for the rationale concerning the inappropriateness ofvariance provisions in a SIP. As explained in EPA's 1996 rule proposing to remove various variance-related provisions, variance provisions are generally prohibited by, and are not legally enforceable pursuant to, section 110(i) ofthe Act.
II. Whatstatutoryprovisions andrules
arebeing deleted?

EPA has determined that the statutes andrules listed in the tables below were inappropriate for inclusion in the SIP, but were previously approved into the SIP in error. Dates thatthese statutes andrules were submitted by Arizona andNevada and approved byEPA are provided. We are deleting these statutes andrules from the Arizona and Nevada SIPs under CAA section 110(k)(6) Ias inconsistent with therequirements of CAA section 110(a).

or promulgationrevise such action as appropriate withoutrequiring any further submissionfromthe State. Such determination andthebasisthereof shallbe provided to the Stateand thepublic." 

### 5705157052 Federal Register/Vol. 74, No. 211/Tuesday, November 3, 2009/Rules and Regulations

ARIZONA REVISED STATUTES

Statute No. Title Submittal date Approval date/FR cite

36-770

....................... Declaration of Policy

.................................................................................. 07/13/81 06/18/82; 47 FR 26382. 36-776

....................... Authorization to Accept Funds or Grants

................................................... 07/13/81 06/18/82; 47 FR 26382. 36-777

....................... Advisory Council

......................................................................................... 07/13/81 06/18/82; 47 FR 26382.

PIMA COUNTY DEPARTMENT OF ENVIRONMENTAL QUALITY

Rule No. Title Submittal date Approval date/FR cite

131

............................. Establishment

........................................ ................................ ............. 10/09/79 04/16/82; 47 FR 16326. 132

............................. Composition

........................................................... ..................... 10/09/79 04/16/82; 47 FR 16326. 133

............................. Terms: N ominations

........................................ ....................................... 10/09/79 04/16/82; 47 FR 16326. 134

............................. Function ...................................................................................................... 10/09/79 04/16/82; 47 FR 16326

. 135

............................. Officers; Procedures

.................................................................................. 10/09/79 04/16/82; 47 FR 16326. 136

............................. Meetings; Special Studies; Hearings

......................................................... 10/09/79 04/16/82; 47 FR 16326. 137

............................. Compensation; Absences

.......................................................................... 10/09/79 04/16/82; 47 FR 16326. 164

............................. Copies ......................................................................................................... 10/09/79 04/16/82; 47 FR 16326

. 181

............................. Legal Authority

.......................................... ............................................. 10/09/79 04/16/82; 47 FR 16326. 182

............................. General Procedures

........................................ ....................................... 10/09/79 04/16/82; 47 FR 16326. 205

............................. Conditional Permits (Variances)

................................................................. 10/09/79 04/16/82; 47 FR 16326. 214

............................. Permit Fee Payments

................................................................................ 10/09/79 04/16/82; 47 FR 16326. 245

............................. Conditional Permit (Variance) Fees

........................................................... 10/09/79 04/16/82; 47 FR 16326. 246

............................. Payment of Permit Fees

............................................................................ 10/09/79 04/16/82; 47 FR 16326. 247

............................. Refund of Permit Fees

...................................... ...... ................................. 10/09/79 04/16/82; 47 FR 16326. 248

............................. Fees for D uplicate Permits

......................................................................... 10/09/79 04/16/82; 47 FR 16326.

NEVADA STATE REGULATIONS

Rule No. Title Submittal date Approval date/FR cite

2.11.7

......................... Untitled, but related tojudicial review of variances

.................................... 12/29/78 08/27/81; 46 FR 43141.

CLARK COUNTY DEPARTMENT OF AIR QUALITY AND ENVIRONMENTAL MANAGEMENT

Rule No. Title Submittal date Approval date/FR cite
Section 3, rule 3.1

..... Air Pollution Control Committee

................................................................. 07/24/79 08/27/81; 46 FR 43141.

WASHOE COUNTY DISTRICT HEALTH DEPARTMENT, AIR QUALITY MANAGEMENT DIVISION

Rule No. Title Submittal date Approval date/FR cite

020.020

...................... Adoption, Amending Regulations

............................................................... 06/12/72 07/27/72; 37 FR 15080. 020.030

...................... Hearing Board-Powers and Duties

.......................................................... 06/12/72 07/27/72; 37 FR 15080. 020.075

...................... Technical Reports and Fees

...................................................................... 06/12/72 07/27/72; 37 FR 15080. 030.3105

.................... Hazardous Materials Processes

................................................................. 07/24/79 08/27/81; 46 FR 43141. 030.3107

.................... Untitled, but related to the cost for permit transfer

.................................... 07/24/79 08/27/81; 46 FR 43141. 030.3108

.................... Untitled, but related to the cost for permit replacement

............................. 07/24/79 08/27/81; 46 FR 43141. 040.055

...................... Nuisance-Odorous or Gaseous Contaminants

........................................ 06/12/72 07/27/72; 37 FR 15080.

We are also taking this opportunity to correct certain clerical and typographical errors in a certain paragraph from the Arizona subpart of part 52 ("Approval and promulgation of implementation plans") listing approved rules from the Pima County Health Department as submitted by Arizona on October 9, 1979, and approvedby EPA onApril 18, 1982 (47 FR 16326). The subject paragraph is 40 CFR 52.120(c)(38)(i)(A). In our 1982 final rule approving certain Pima County rules, we inadvertently identified the rules approved under "Regulation 21" as "Rules 221-225." The correct listing for the approved rules under "Regulation 21" is "Rules 211-215."

In addition, as noted in an EPA final rule published at 69 FR 2509 (January 16, 2004), beginning with the 1993 version ofthe Code ofFederal Regulations (CFR), the Government Printing Office (GPO) inadvertently omitted two lines ofcodified rules from 40 CFR 52.120(c)(38)(i)(A), the same paragraph listing the Pima County rules approved byus in 1982. Our 2004 correcting amendment replaced mostof the Pima County rules inadvertently omittedby the GPO but inadvertently failed to include "Regulation 21, Rules 221-225," which, as noted above, should read: "Regulation 21: Rules 211- 215."

In addition,beginning with the 2004 version ofthe CFR, the paragraph (that omitted certain Pima County rules)that
was intended to be replaced in its entirety through our 2004 correcting amendment hasbeen published in addition to the replacement paragraph. In this action, we are correcting all of these errors with a revision to 40 CFR

### Federal Register/Vol. 74, No. 211/Tuesday, November 3, 2009/Rules and Regulations

52.120(c)(38)(i)(A) thatcorrectly lists the rules approved under "Regulation 21" and that deletes the paragraph that
we intended to replace in 2004. III.Public Comment andFinal Action

EPA has reviewed the statutes and rules listed inthe tables above and determinedthat theywere previously approved into the respective SIPs in
error.Deletion ofthese rules will not relax the applicable SIP and is consistentwith theAct.Therefore,EPA is

deleting these statutes and rules under section 110(k)(6)oftheAct, which provides EPA authority to
remove these statutes and rules without additional State submission.EPA is also correcting certain clerical and typographical errors inthe codification ofthe Pima Countyportion ofthe Arizona SIP.

We donot think anyone will object to this approval,so we are finalizing it without proposing it inadvance. However,inthe Proposed Rules section ofthis FederalRegister, we are simultaneouslyproposing approval of the same action. If we receive adverse comments by December 3, 2009,we will publish atimely withdrawal inthe Federal Register to notify the public that the direct final approval will not take effect and wewill address the comments inasubsequent final action based onthe proposal.If we donot receive timely adverse comments,the direct final approval will be effective without further notice on January 4, 2010. IV. Administrative Requirements

Under the Clean Air Act,the Administrator is required to approve a SIP submission that complies with the provisions of theAct and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions,EPA's role is to approve state choices,provided that theymeet the criteria ofthe CleanAir Act. Accordingly,this action merely corrects previous actions approving state law as meeting Federal requirements and does not impose additional requirements beyond those imposedby state law.For that reason, this action:

* Is not a"significant regulatory action" subject to reviewby the Office ofManagementand Budget under Executive Order 12866 (58FR 51735, October 4, 1993);

* Does not impose an information collection burden under the provisions ofthe Paperwork Reduction Act (44 U.S.C. 3501 etseq.);

* Is certified as not having a significanteconomic impact on a substantial numberof small entities under the Regulatory Flexibility Act (5 U.S.C. 601 etseq.); *Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub.L. 104-4); *Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

*Is not an economically significant regulatory actionbased on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

*Is not a significant regulatory action subject toExecutive Order 13211 (66 FR 28355, May 22, 2001);

*Is not subject to requirements of Section 12(d) ofthe National Technology Transfer and Advancement Act of1995 (15 U.S.C. 272 note) because application ofthose requirements would be inconsistent with the Clean Air Act; and *Does not provide EPA withthe discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does nothave tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs ontribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 etseq., as added bythe Small Business Regulatory Enforcement Fairness Act of 1996, generally provides thatbefore a rulemay take effect, the agency promulgating the rule must submit a rule report, which includes a copy ofthe rule, to each House ofthe Congress and tothe Comptroller General ofthe United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General ofthe United States prior to publication ofthe rule in the FederalRegister. 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 5U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions forjudicialreview of this action must be filed in the United States Court ofAppeals for the appropriate circuit byJanuary 4, 2010. Parties with objections to this direct final rule are encouraged to file a comment in response to theparallel notice ofproposed rulemaking for this action published in the proposed rules section oftoday's Federal Register, rather than file an immediate petition forjudicial review ofthis direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. Filing a petition for reconsideration by the Administrator ofthis final rule does not affect the finality ofthis action for the purposes ofjudicial review nor does it extend the timewithin which a petition forjudicial review maybe filed, and shall not postpone the effectiveness ofsuch rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)). List of Subjects in40 CFRPart52

Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements.

Dated: October 19, 2009. Nancy Lindsay, ActingRegional Administrator, RegionIX. * Part52, chapterI, title40 ofthe Code ofFederal Regulations is amended as follows:
PART 52-[AMENDED]

m 1. The authority citation for part52 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq. Subpart D-Arizona
*2. Section 52.120 is amended by: * a.Revising paragraph (c)(38)(i)(A); * b. Adding paragraph (c)(38)(i)(A)(1); and 

### mc.Adding paragraph (c)(50)(ii)(A)(1).

The revision and additions read as follows: §52.120 Identificationof plan.

(c) * * * (38) * * * (i) * * * (A) New or amended Regulation 10: Rules 101-103; Regulation 11: Rules 111-113; Regulation 12: Rules 121-123; Regulation 13: Rules 131-137; Regulation 14: Rules 141 and 143-147; Regulation 15: Rule 151; Regulation 16: Rules 161-165; Regulation 17: Rules 172-174; Regulation 18: Rules 181 and 182; Regulation 20: Rules 201-205; Regulation 21: Rules 211-215; Regulation 22: Rules 221-226; Regulation 23: Rules 231-232; Regulation 24: Rules 241 and 243-248; Regulation 25: Rules 251 and 252; Regulation 30: Rules 301 and 302; 

### 5705357054 Federal Register/Vol. 74, No. 211/Tuesday, November 3, 2009/Rules and Regulations

Regulation 31: Rules 312-316 and 318; Regulation 32: Rule 321; Regulation 33: Rules 331 and 332; Regulation 34: Rules 341-344; Regulation 40: Rules 402 and 403; Regulation 41: 411-413; Regulation 50: Rules 501-503 and 505-507; Regulation 51: Rules 511 and 512; Regulation 60: Rule 601; Regulation 61: Rule 611 (ParagraphA.1 to A.3) and Rule 612; Regulation 62: Rules 621-624; Regulation 63: Rule 631; Regulation 64: Rule 641; Regulation 70: Rules 701-705 and 706 (Paragraphs Ato C, D.3, D.4, andE); Regulation 71: Rules 711-714; Regulation 72: Rules 721 and 722; Regulation 80: Rules 801-804; Regulation 81: Rule 811; Regulation 82: Rules 821-823; Regulation 90: Rules 901-904; Regulation 91: Rule 911 (except Methods 13-A, 13-B, 14, and 15), and Rules 912 and 913; Regulation 92: Rules 921-924; and Regulation 93: Rules 931 and 932. (1)Previously approved onApril 16, 1982 in paragraph (c)(38)(i)(A) ofthis section and now deleted from the SIP without replacement Pima County Health Department Regulations: Regulation 13: Rules 131-137; Regulation 16: Rule 164; Regulation 18: Rules 181 and 182; Regulation 20: Rule 205; Regulation 21: Rule 214; and Regulation 24: Rules 245-248.

* * * * *

(50)* * * 

### (ii) * * * (A) *** (1)Previously approved onJune 18, 1982 in paragraph (c)(50)(ii)(A) ofthis section and now deleted from the SIP without replacement Arizona Revised Statutes: sections 36-770, 36-776, and 36-777.

Subpart DD-Nevada

* 3.Section 52.1470 is amendedby:


### ma. Addingparagraphs (c)(2)(i), (c)(14)(vii)(A), (c)(16)(viii)(D), and (c)(16)(ix)(A) to read as follows: §52.1470 Identification of plan.

* * * * *

(c) * * * (2) * * * (i) Previously approved onJuly 27, 1972 in paragraph (c)(2) ofthis section and now deleted from the SIP without replacement Washoe County Air Quality Regulations: Rules 020.020, 020.030, 020.075, and 040.055.

* * * * *

(14) * * * (vii)* * * (A) Previously approved on August 27, 1981 in paragraph (c)(14)(vii) ofthis section and now deleted from the SIP without replacement Nevada Air Quality Regulations: Rule 2.11.7.

* * * * *

(16) * * * (viii) * * * (D) Previously approved on August 27, 1981 in paragraph (c)(16)(viii) ofthis section and now deleted from the SIP without replacement Nevada Air Quality Regulations: Clark County District Board ofHealth Air Pollution Control Regulations: Section 3, Rule 3.1. (ix) * * * (A) Previously approved on August 27, 1981 in paragraph (c)(16)(ix) ofthis section and now deleted from the SIP without replacement Washoe County Air Quality Regulations: Rules 030.3105, 030.3107, and 030.3108.

* * * * * [FRDoc. E9-26325 Filed 11-2-09; 8:45 am]
BILLING CODE 6560-50-P