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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; Corrections to

the Arizona and Nevada State

Implementation Plans

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is deleting certain

statutes and rules that were erroneously

approved by EPA under the Clean Air

Act as part of the Arizona and Nevada

state implementation plans. The statutes

that are the subject of this rule are from

the Arizona state implementation plan.

The rules that are the subject of this rule

were adopted by the Pima County

Health Department in Arizona and the

State Environmental Commission, Clark

County District Board of Health, and

Washoe County District Board of Health

in Nevada. The statutes and rules that

EPA is deleting relate to general

declarations of policy, advisory

committees, variances, and incidental

fees and nuisance odors. EPA has

determined that the continued presence

of these statutory provisions and rules

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 of this action

is to delete these statutes and rules from

the Arizona and Nevada state

implementation plans. EPA is also

correcting certain clerical and

typographical errors in the codification

of the Pima County portion of the

Arizona plan.

DATES: This rule is effective on January

4, 2010 without further notice, unless

EPA receives adverse comments by

December 3, 2009. If we receive such

comments, we will publish a timely

withdrawal in the Federal Register to

notify the public that this direct final

rule will not take effect.

ADDRESSES: Submit comments,

identified by docket number EPA-R09-

OAR-2009-0435, by one of the

following methods:

1. Federal eRulemaking Portal: http://

www.regulations.gov. Follow the on-line

instructions.

2. E-mail: allen.cynthia@epa.gov.

3. Mail or deliver: Cynthia Allen

(AIR-4), U.S. Environmental Protection

'Section 110(k)(6) of the Clean Air Act, as

amended in 1990, provides, "Whenever the

Administrator determines that the Administrator's

action approving, disapproving, or promulgating

Agency Region IX, 75 Hawthorne Street,

San Francisco, CA 94105-3901.

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

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 e-mail. The

http://www.regulations.gov portal 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

e-mail 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: 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, San Francisco, California. While

all documents in the docket are listed in

the index, some information may be

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 normal business

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 is EPA correcting the SIPs?

II. What rules are being deleted?

III. Public Comment 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 (or part 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 not required

by the Act. Due to time and resource

constraints, EPA's review of these

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 of these

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) of implementing, maintaining,

and enforcing the national ambient air

quality standards. Examples of

inappropriately-approved SIP elements

include statutes and rules that consist of

general statements of policy; that govern

local advisory boards; that specify

incidental fees, method of payment, and

refunds; and that regulate nuisance

odors. Most of the statutes and rules we

are deleting in today's action fall under

one of these categories.

In addition, we are deleting certain

variance-related provisions that were

orphaned by a previous EPA rulemaking

deleting most such provisions from the

Nevada Division of Environmental

Protection (NDEP) portion of the Nevada

SIP and the Pima County portion of the

Arizona SIP. See EPA's proposed rule at

61 FR 38664 (July 25, 1996) and final

rule at 62 FR 34641 (June 27, 1997) for

the rationale concerning the

inappropriateness of variance

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)

of the Act.

II. What statutory provisions and rules

are being deleted?

EPA has determined that the statutes

and rules listed in the tables below were

inappropriate for inclusion in the SIP,

but were previously approved into the

SIP in error. Dates that these statutes

and rules were submitted by Arizona

and Nevada and approved by EPA are

provided. We are deleting these statutes

and rules from the Arizona and Nevada

SIPs under CAA section 110(k)(6) I as

inconsistent with the requirements of

CAA section 110(a).

or promulgation revise such action as appropriate

without requiring any further submission from the

State. Such determination and the basis thereof

shall be provided to the State and the public."

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

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

133 ............................. Term s: N om inations ........................................ ....................................... 10/09/7 9 04/16/82; 47 FR 16326.

134 ............................. Functio n ...................................................................................................... 10/09/7 9 04/16/82 ; 47 F R 16326 .

135 ............................. O fficers; P rocedures .................................................................................. 10/09/7 9 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.

16 4 ............................. C o p ie s ......................................................................................................... 10/09/7 9 04/16/8 2 ; 47 F R 16 32 6 .

181 ............................. Legal A uthority .......................................... ............................................. 10/09/7 9 04/16/82; 47 FR 16326.

182 ............................. G eneral P rocedures ........................................ ....................................... 10/09/7 9 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 Perm it Fees ...................................... ................................. ...... 10/09/7 9 04/16/82; 47 FR 16326.

248 ............................. Fees for D uplicate Perm its ......................................................................... 10/09/7 9 04/16/82; 47 FR 16326.

NEVADA STATE REGULATIONS

Rule No. Title Submittal date Approval date/FR cite

2.11.7 ......................... Untitled, but related to judicial 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

approved by EPA on April 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 of the Code of Federal

Regulations (CFR), the Government

Printing Office (GPO) inadvertently

omitted two lines of codified rules from

40 CFR 52.120(c)(38)(i)(A), the same

paragraph listing the Pima County rules

approved by us in 1982. Our 2004

correcting amendment replaced most of

the Pima County rules inadvertently

omitted by 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 of the CFR, the paragraph (that

omitted certain Pima County rules) that

was intended to be replaced in its

entirety through our 2004 correcting

amendment has been published in

addition to the replacement paragraph.

In this action, we are correcting all of

these errors with a revision to 40 CFR

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52.120(c)(38)(i)(A) that correctly lists

the rules approved under "Regulation

21" and that deletes the paragraph that

we intended to replace in 2004.

III. Public Comment and Final Action

EPA has reviewed the statutes and

rules listed in the tables above and

determined that they were previously

approved into the respective SIPs in

error. Deletion of these rules will not

relax the applicable SIP and is

consistent with the Act. Therefore, EPA

is deleting these statutes and rules

under section 110(k)(6) of the Act,

which provides EPA authority to

remove these statutes and rules without

additional State submission. EPA is also

correcting certain clerical and

typographical errors in the codification

of the Pima County portion of the

Arizona SIP.

We do not think anyone will object to

this approval, so we are finalizing it

without proposing it in advance.

However, in the Proposed Rules section

of this Federal Register, we are

simultaneously proposing approval of

the same action. If we receive adverse

comments by December 3, 2009, we will

publish a timely withdrawal in the

Federal Register to notify the public

that the direct final approval will not

take effect and we will address the

comments in a subsequent final action

based on the proposal. If we do not

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 the Act 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 they meet

the criteria of the Clean Air Act.

Accordingly, this action merely corrects

previous actions approving state law as

meeting Federal requirements and does

not impose additional requirements

beyond those imposed by state law. For

that reason, this action:

* Is not a "significant regulatory

action" subject to review by the Office

of Management and Budget under

Executive Order 12866 (58 FR 51735,

October 4, 1993);

* Does not impose an information

collection burden under the provisions

of the Paperwork Reduction Act (44

U.S.C. 3501 et seq.);

* Is certified as not having a

significant economic impact on a

substantial number of small entities

under the Regulatory Flexibility Act (5

U.S.C. 601 et seq.);

* 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 action based on health or

safety risks subject to Executive Order

13045 (62 FR 19885, April 23, 1997);

* Is not a significant regulatory action

subject to Executive Order 13211 (66 FR

28355, May 22, 2001);

* Is not subject to requirements of

Section 12(d) of the National

Technology Transfer and Advancement

Act of 1995 (15 U.S.C. 272 note) because

application of those requirements would

be inconsistent with the Clean Air Act;

and

* Does not provide EPA with the

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 not have

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 on tribal governments or preempt

tribal law.

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 action and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of the rule in

the Federal Register. A major rule

cannot take effect until 60 days after it

is published in the Federal Register.

This action is not a "major rule" as

defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean

Air Act, petitions for judicial review of

this action must be filed in the United

States Court of Appeals for the

appropriate circuit by January 4, 2010.

Parties with objections to this direct

final rule are encouraged to file a

comment in response to the parallel

notice of proposed rulemaking for this

action published in the proposed rules

section of today's Federal Register,

rather than file an immediate petition

for judicial review of this 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 of this final rule does

not affect the finality of this action for

the purposes of judicial review nor does

it extend the time within which a

petition for judicial review may be filed,

and shall not postpone the effectiveness

of such rule or action. This action may

not be challenged later in proceedings to

enforce its requirements (see section

307(b)(2)).

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Incorporation by

reference, Intergovernmental relations,

Reporting and recordkeeping

requirements.

Dated: October 19, 2009.

Nancy Lindsay,

Acting Regional Administrator, Region IX.

* Part 52, chapter I, title 40 of the Code

of Federal Regulations is amended as

follows:

PART 52-[AMENDED]

m 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:

* a. Revising paragraph (c)(38)(i)(A);

* b. Adding paragraph (c)(38)(i)(A)(1);

and

m c. Adding paragraph (c)(50)(ii)(A)(1).

The revision and additions read as

follows:

§ 52.120 Identification of 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;

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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 (Paragraph A.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 A to C, D.3, D.4,

and E); 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 on April 16,

1982 in paragraph (c)(38)(i)(A) of this

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 on June 18,

1982 in paragraph (c)(50)(ii)(A) of this

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 amended by:

m a. Adding paragraphs (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 on July 27,

1972 in paragraph (c)(2) of this 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) of this

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) of this

section and now deleted from the SIP

without replacement Nevada Air

Quality Regulations: Clark County

District Board of Health Air Pollution

Control Regulations: Section 3, Rule 3.1.

(ix) * * *

(A) Previously approved on August

27, 1981 in paragraph (c)(16)(ix) of this

section and now deleted from the SIP

without replacement Washoe County

Air Quality Regulations: Rules

030.3105, 030.3107, and 030.3108. * * * * *

[FR Doc. E9-26325 Filed 11-2-09; 8:45 am]

BILLING CODE 6560-50-P

HeinOnline -- 74 Fed. Reg. 57054 2009