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Citation: 69 Fed. Reg. 10161 2004

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### Federal Register/Vol. 69, No. 43/Thursday, March 4, 2004/Rules and Regulations

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will nothave

a significant economic impact on a substantial number of small entities, because the regulation will only affect the bridge's current operation by several minutes per opening per hour and continue to provide for navigational needs.

Assistance for Small Entities

Under section 213(a) ofthe Small Business Regulatory Enforcement Fairness Act of 1996 (Pub.L. 104-121),

we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them andparticipate in the rulemaking
process.

Small businesses may send comments

onthe actions ofFederal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. Ifyou wish to comment on actions by employees ofthe Coast Guard, call 1- 888-REG-FAIR (1-888-734-3247).

Collection of Information

This rule calls for no new collection ofinformation under the Paperwork Reduction Act of1995 (44 U.S.C. 3501- 3520).

Federalism

A rule has implications for federalism under Executive Order 13132, Federalism, ifithas a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of1995 (2U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, orby the private sector of $100,000,000 or more in any one year. Though this rule will not result in such

an expenditure, we do discuss the effects ofthis rule elsewhere in the preamble. Taking ofPrivateProperty
This rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

Civil Justice Reform

This rule meets applicable standards in sections 3(a) and 3(b)(2) ofExecutive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
Protection ofChildren

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not

an economically significant rule and would not create an environmental risk
to health orrisk to safety that might disproportionately affect children.

Indian Tribal Governments

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one ormore Indian tribes, onthe relationship between the Federal Government andIndian tribes,

or onthe distribution ofpower and responsibilities between the Federal Government and Indian tribes. Energy Effects

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, orUse. We have determined that itis not a "significant
energy action" under that order, because it is not a "significant regulatory action" under Executive Order 12866 andis not likely to have a significant adverse effect

onthe supply, distribution, oruse of
energy. Ithas not been designated bythe Administrator ofthe Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement ofEnergy Effects under Executive Order 13211.

Environment

We have analyzed this rule under Commandant Instruction M16475.1D, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limitthe use of

a categorical exclusion under section 2.B.2 ofthe Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (32)(e), ofthe Instruction, from further environmental documentation. Under figure 2-1, paragraph (32)(e), ofthe Instruction, an "Environmental Analysis Check List" and a "Categorical Exclusion Determination" are not required for this rule.

List ofSubjects in 33 CFR Part117

Bridges. Regulations

* For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows:

PART 117-DRAWBRIDGE OPERATION REGULATIONS

m1. The authority citation forpart 117 continues to read as follows:

Authority: 33 U.S.C. 499; Department of Homeland Security Delegation No. 0170.1; 33 CFR 1.05-1(g); section 117.255 also issued under the authority ofPub.L. 102-587, 106 Stat. 5039.

* 2.In § 117.261 revise paragraph (ee) to read as follows: 

### §117.261 Atlantic Intracoastal Waterway from St. Marys Riverto Key Largo.

(ee) Commercial Boulevard bridge (SR 870), mile 1059.0, at Lauderdale-by-theSea. The draws shall open on signal; except that, from 7 a.m. to 6 p.m., the draws need open only onthe hour, 20 minutes after the hour, and 40 minutes after the hour.

Dated: February 23, 2004. Harvey E. Johnson, Jr.,
Bear Admiral, U.S. CoastGuard,Commander, Seventh CoastGuard District. [FR Doc. 04-4780 Filed 3-3-04; 8:45 am]

BILLING CODE 4910-15-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52 [AZ-082-0072; FRL-7626-1]
Approval and Promulgation of Implementation Plans; ArizonaMaricopa County Ozone, PM-10 and CO Nonattainment Areas; Approval of Revisionsto Maricopa County Area Cleaner Burning Gasoline Program

AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.

SUMMARY: We are approving revisions to the Arizona Cleaner Burning Gasoline 

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(CBG)program currently approved in the State implementation plan (SIP). Specifically, we are approving revisions that, among other changes, replace Arizona's interim CBG program with a permanent program, amend the wintertime CBG program to limitthe types ofgasoline that may be supplied, andremove the minimum oxygen content requirement for summertime gasoline. EFFECTIVE DATE: April 5,2004. ADDRESSES: Copies ofthe documents relevant to this action are available for public inspection during normal business hours at EPA Region 9's Air Planning Office (AIR-2), 75 Hawthorne Street, San Francisco, CA 94105-3901. Due to increased security, please call 24 hours ahead ofyour visit so thatwe can arrange to have someone meet you.
Electronic Availability

This document andthe Technical Support Document (TSD) for this rulemaking are also available as electronic files on EPA's Region 9 Web page at http://www.epa.gov/region09/ air/phoenixcbg/.
FOR FURTHER INFORMATION CONTACT: Wienke Tax, Office ofAir Planning, (AIR-2), EPA Region 9, 75 Hawthorne Street, San Francisco, CA 94105-3901. Phone: (520) 622-1622; e-mail: tax.wienke@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, "we", "us" and "our" refer to U.S. EPA.

I. Background

On September 29, 2003 (68 FR 55920), EPA published a notice ofproposed rulemaking for the State ofArizona. The notice proposed approval ofrevisions to the SIP for Arizona's CBG program. These revisions to the Arizona CBG
program have been adopted by the Arizona Department ofEnvironmental Quality (ADEQ) andthe State legislature since EPA approval ofthe interim CBG program in 1998.

ADEQ submitted the changes to its CBG program to EPA for approval into the SIP in five separate SIP submittals: SIPRevision,Arizona Cleaner Burning GasolinePermanentRules-Maricopa CountyOzoneNonattainment Area, February 1999 ("CBGPermanent Rules"), State Implementation Plan Revision for the Cleaner Burning Gasoline Program in the Maricopa County Ozone Nonattainment Area, March 2001 ("Summertime Minimum Oxygen Content Removal"), Arizona Cleaner BurningGasolineRule toRevise theStateImplementationPlan forthe MaricopaCountyCarbon Monoxide, Ozone,andPMIONonattainment Areas, August 2001 ("CBG Wintertime Rules"), Supplement to Cleaner Burning GasolineProgramStateImplementation PlanRevision, September 2001 ("Technical Supplement") and Supplement to Cleaner Burning GasolineProgramStateImplementation PlanRevision, January 2004 ("Statutory Supplement").' The key changes from the interim CBG program approved into the SIP in 1998 are described below. Since 1997, ADEQhas adopted several amendments to its CBG rule in order to make it apermanent rule and
to reflect changes made bythe State legislature to the fuel provisions ofthe Arizona Revised Statutes (ARS). Most of these changes involve the removal of SIP-approved requirements and options. The "CBG Permanent Rules" include the following key changes from the interim rules currently approved in the SIP:

* The standards for Type 3 gasoline (modeled after Federal Phase 1 reformulated gasoline [RFG]), which

was only available as an option in 1998, have been removed along with references to this fuel option. 2
* Summertime minimum oxygen content standards for Type 1 gasoline (modeled after Federal Phase 2RFG) have been removed by specifying a 0.0% minimum oxygen content for April 1through November 1in Table 1 ofthe rule.3

* The option ofsupplying Type 1fuel duringthe winter fuel season (November 2through March 31) has been removed byincluding wintertime fuel specifications that limit suppliers to Type 2 gasoline (modeled after California Air Resources Board (CARB) Phase 2)beginning in 2000. With this change, requirements for wintertime NOx surveys have also been removed because Type 2 gasoline does not include aNOx performance standard. * The option to provide non-ethanol oxygenated fuel duringthe winter has been removed by amending the wintertime oxygen content provisions to require fuel containing 10% ethanol, unless the use ofa non-ethanol oxygenate is approved by the Director of ADEQ.4

'In accordance with section 110(k)(1)(B), these SIP submittals were deemed complete by operation of law six months after submittal.

2This change was included in ADEQ's February
1999 "CBG Permanent Rules" submittal andreflects changes to the Arizona Revised Statutes by HB
2307.

3Foradditional information, see ADEQ's March 2001 "Summertime Minimum Oxygen Content Removal" submittal. These changes reflect amendments to the Arizona Revised Statutes by SB 1504.

4 This change was also included in ADEQ's August 2001 "CBG Wintertime Rules" submittal * NOxperformance standards for Type 1 gasoline and summer survey requirements have been amended to conform with changes made by EPA to the Federal RFGregulations in December 1997 (62 FR 68196). 5

* The area subject to the program has been redefined to include all of Maricopa County as well as some western portions ofPinal County and a small part ofsouthern Yavapai County. 6

A more complete description of Arizona's submittals and the rationale for our approval are presented in the notice ofproposed rulemaking (68 FR 55920, Sept. 29, 2003), and associated Technical Support Document (available
at www.epa.gov/region09/air! phoenixcbg/).

II.Public Comments on theProposed Action

We received two comment letters on the September 29, 2003, proposal. The first, from the Western States Petroleum Association (WSPA), strongly supported the proposed SIP approval. The second, fromthe Arizona Center for Law in the Public Interest (ACLPI), raised concerns regarding the impact on ambient ozone concentrations. ACLPI's comments are addressed below.

In addition to these comments, we received e-mails submitted priorto publication ofthe proposal in the Federal Register, apparently reacting to

news stories about the CBG program and MTBE. While these e-mails do not appear to address our proposed action and therefore do not appear to be intended as comments, we discuss them below to address potential confusion

over the nature oftoday's action.

ACLPIComments
Comment:ACLPI suggests EPA's finding under CAA section 110(l)-that the CBG program revisions will not interfere with attainment andreasonable further progress-is not sufficiently definitive. Specifically, ACLPI notes that, "EPA acknowledges that this removal [ofthe summertime minimum oxygen content requirement] 'could result in increases in VOC and CO emissions and a decrease in NOx emissions' all ofwhich wouldhave the effect ofincreasing ozone." ACLPI
argues that the basis forEPA's finding is the unsupported assumption that

implementing changes to the Arizona Revised Statutes by HB 2347.

5See ADEQ's August 2001 "CBG Wintertime Rules" submittal.

6The definition ofthe covered area has been changed in several statutory andregulatory revisions. The final definition submitted forEPA approval is described in ADEQ's August 2001 "CBG Wintertime Rules" submittal and reflects statutory changes made by HB 2189. 

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oxygen content will not affect emissions from newer vehicles and therefore the projected emissions changes are "relatively small" and are more than offsetby Phoenix's general downward trend in ambient ozone concentrations from 1996 to 2002.

Response:We concluded in our proposal that the removal ofthe two percent minimum oxygen requirement for summertime CBG is not a relaxation ofthe SIPbecause the SIP-approved regulations already allowed the use of non-oxygenated CBG (CBG Type 2 produced under the averaging option) duringthe summer control period. Thus, the fuel options allowed under the revised State rules will be no less stringent than those allowed under the
current SIP. This side-by-side comparison ofregulatory requirements is appropriate for purposes of satisfying CAA section 110(1) in areas meeting the NAAQS. See Hallv. EPA, 273 F.3d 1146, 1160 n. 11 (9th Cir. 2001) (noting "no relaxation" test would "clearly be appropriate in areas that achieved attainment under preexisting rules").

We nonetheless went further in working with ADEQ to assess the changes in emissions and ozone concentrations likely to occur as a result ofthis change to the CBG program. ACLPI notes our preliminary conclusion that small emissions increases might not be a concern given the declining ozone concentrations in the area. As noted above, this preliminary assessment was not the basis for our 110(1) determination. Nor was it the end of our analysis.

To confirm this preliminary conclusion we conducted detailed modeling to predict not only how emissions might change but what these emission changes would mean for ozone concentrations. First, we looked at how historical ozone concentrations would have been affected by the potential fuel changes. Our modeling showed thatthe

new fuel, ifused in place ofthe baseline fuel, would have resulted in a four percent decrease in the ozone design value from the 1999 baseline year. Second, to evaluate future ozone concentrations, we conducted a qualitative analysis topredict likely trends in emissions and concentrations. We explained thatwith newervehicles, the effect ofgasoline oxygen content on vehicle emissions is likely to diminish, and any small emissions changes willbe overwhelmed by emission reductions achieved by new engine controls. Between these two findings, we concluded that the fuel provided to the

area will be better for ozone concentrations than the fuel used in the

area at the time of attainment and that emissions from vehicles will continue to decline into the future.

ACLPI does not acknowledge the analysis provided. Instead, ACLPI points to our note that there is not enough data to conclude that gasoline
oxygen content will affect emissions from the newest generation ofvehicles. ACLPI implies that we therefore do not know how fuel changes will affect emissions in the future.

While our models for estimating vehicle emissions do not yet include data for the newest generation of vehicles, we know how gasoline oxygen content affects older vehicles andwe know that asthe overall fleet ofvehicles changes, the effect of oxygen content diminishes. 7 In addition, we know that

asthe fleet changes to include more

newer vehicles, engine technologies will result in significant emission reductions that overwhelm this diminishing effect from gasoline oxygen content. Thus,

even though we cannot model the specific effect of oxygen content on

newer vehicles, it is reasonable to conclude that emissions will continue
to improve with changes to the fleet. Comment.ACLPI also claims that itis anticipated that Phoenix will violate the

new 8-hour ozone standard and therefore objects to EPA's failure to analyze the potential impact on 8-hour

ozone concentrations.

Response. While we did not conduct

a separate analysis for 8-hour ozone concentrations, we did explain that the analysis described above should ensure that the revisions to the fuel program will not interfere with 8-hour ozone attainment. Modeling showed that the

new fuels likely to be provided to the

area will result in a decrease in peak

ozone concentrations as compared to the fuel provided in 1999. In addition,
motor vehicle emissions will continue
to decline as improvements in engine technologies will overwhelm the diminishing effect ofgasoline oxygen content on these emissions.

RelatedE-mailsSubmitted toEPA

We received four e-mails, all submitted before the September 29 publication ofthe proposed action-one

on September 8, one on September 15

7Thebenefit ofadding oxygen to gasoline is to "lean out" chemically an engine that is running rich (i.e., too much fuel, not enough air(oxygen)),
sothat complete combustion occurs (i.e.,the additional air/oxygenresults inCO being converted
to C0 2 ). Newer vehicles, however,include sophisticated feedback controls, which enablethese vehicles tomaintain air/fuelratios within tight parameters. Theseratios are maintained withor without the addition ofoxygen to gasoline. As a result, thebenefits ofgasoline oxygenates will declineas thesefeedback controls improvein

newer vehicles. and two fromthe same person on September 23. The firsttwo ofthese emails encouraged ADEQ to move away fromusing MTBE as an oxygenate. The final two raised questions about how emission reductions wouldbe achieved ifthe area no longer had aCBG program with MTBE.

These e-mails suggest some confusion regarding the nature ofthe action being takenby ADEQ and EPA. We therefore feltit important to reiterate that our action does not banMTBE from Arizona summertime gasoline. The revisions to the CBG program remove the minimum summertime oxygen content requirement, but do not banthe use of MTBE or any other oxygenate during the

summer. Our approval ofthese revisions likewise, does notpreclude the use of MTBE.

With this in mind,we evaluated the fuel formulations refiners are likely to supply the area. We concluded approval ofthese CBG program revisions may result in a mixture ofMTBE-oxygenated CBG andnon-oxygenated CBG (i.e., ethanol-oxygenated fuel appears unlikely). The cheapest fuel to produce will likelybe non-oxygenated Type 1 CBG. We used these likely fuels to evaluate air quality impacts and concluded these changes will not adversely affect air quality in the area.
III.Final Action

In today's action, we are finding that the Arizona CBG program implemented in the Maricopa County area meets CAA and EPArequirements for a state fuels program. In addition, under CAA section 110(1), we are finding that the SIP revisions submitted byADEQ do not interfere with any applicable requirements for CO, ozone, and PM-10 attainment andreasonable further progress (RFP) or any other requirements ofthe CAA applicable to the Phoenix area. The basis for these findings is discussed in the proposal for today's action. See 68 FR 55920.

We have evaluated the submitted SIP revisions andhave determined that they

are consistent with the CAA andEPA regulations. Therefore, we are approving the Arizona CBG program into the Arizona SIP under section 110(k)(3) of the CAA as meeting the requirements of section 110(a) and part Dto address
ozone, CO andPM-10 nonattainment in the Maricopa County area.

Specifically, we are approving the following elements ofthe CBG program: Arizona Administrative Code (AAC) R20-2-701,R20-2-716,R20-2-750 through 762, and title 20, chap. 2, art. 7, Tables 1 and 2 (March 31, 2001); and Arizona Revised Statutes (ARS) §§49- 541(1)(a), (b), and (c) (as codified on 

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### Federal Register/Vol. 69, No. 43/Thursday, March 4, 2004/Rules and Regulations

August 9, 2001), 41-2124 (as codified

onApril 28, 2000), 41-2123 (as codified

on August 6, 1999), 41-2113(B)(4) (as codified on August 21, 1998), 41-2115 (as codified onJuly 18, 2000), and 41- 2066(A)(2) (as codified onApril 20, 2001).

Nothing in this action should be construed as permitting or allowing or establishing a precedent for any future implementation plan. Each request for revision to a state implementation plan shallbe considered separately in light of specific technical, economic, and environmental factors and in relation to relevant statutory and regulatory requirements.

IV. Statutory and Executive Order Review

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a "significant regulatory action" and therefore is not subject toreview by the Office ofManagement and Budget. For this reason, this action is also not subject to Executive Order 13211, "Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, orUse" (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 (5U.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 oruniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (PublicLaw 104-4).

This rule also does not have tribal implications because itwill 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). This action also does not have federalism implications because it does not have substantial direct effects on the States,

onthe relationship between the national government and the States, or on the distribution ofpower and responsibilities among the various levels ofgovernment, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a State rule implementing a Federal standard, and does not alterthe relationship or the distribution ofpower andresponsibilities established in the Clean Air Act. This rule also isnot subject to Executive Order 13045 "Protection ofChildren from Environmental Health Risks and Safety Risks" (62 FR 19885, April 23, 1997), because itis 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 ofa prior existing requirement for the State to use voluntary consensus standards (VCS), EPAhas no authority
to disapprove aSIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when itreviews a SIP submission,
to use VCS in place ofa SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements ofsection 12(d) ofthe National Technology Transfer and Advancement Act of1995 (15 U.S.C. 272 note) do not apply. This rule does
not impose an information collection burden under the provisions ofthe Paperwork Reduction Act of1995 (44 U.S.C. 3501 etseq.).

The Congressional Review Act, 5 U.S.C. 801 etseq., 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 arule report, which includes a copy ofthe rule, to each House ofthe Congress and to the Comptroller General ofthe United States. EPA will submit a report containing this rule 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 Federal Register. A major rule
cannot take effect until 60 days after it is published in the Federal Register. This actionis not a "major rule" as defined by 5U.S.C. 804(2).

Under section 307(b)(1) ofthe Clean Air Act, petitions forjudicial review of this action must be filed in the United States Court ofAppeals for the appropriate circuit by May 3, 2004. Filing apetition for reconsideration by the Administrator ofthis final rule does
not affectthe finality ofthis rule for the
purposes ofjudicial review nor does it extend the time within which a petition forjudicial review may be filed, and shall not postpone the effectiveness of suchrule or action. This action may not be challenged later in proceedings to enforce its requirements. (SeeCAA section 307(b)(2).) List ofSubjects in 40 CFR Part52
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental regulations, Ozone, Particulate matter, Reporting and recordkeeping requirements.

Dated:January 26, 2004. Wayne Nastri, Regional Administrator,Region 9.
* Part 52, chapter I, title40 oftheCode ofFederal Regulations is amended as follows:

PART 52-[AMENDED]

m1. The authority citation forpart 52 continues to read as follows:

Authority: 42 U.S.C. 7401 etseq. Subpart D-Arizona

* 2. Section 52.120 is amendedby adding paragraphs (c)(112) and (c)(113)
to read asfollows:

§52.120 Identification of plan.

(c) * * * (112) Revised regulations were submitted onAugust 15, 2001, by the Governor's designee as part ofthe submittal entitled Arizona Cleaner BurningGasolineRule toRevise the StateImplementationPlan for the MaricopaCountyCarbonMonoxide, Ozone,andPMIONonattainment Areas. The incorporated materials from this submittal supercede those included in the submittals entitled SIPRevision, Arizona Cleaner BurningGasoline Permanent Rules-MaricopaCounty OzoneNonattainment Area,submitted

on February 24, 1999, and State ImplementationPlanRevisionforthe Cleaner BurningGasolineProgramin theMaricopaCounty Ozone Nonattainment Area,submitted on March 29, 2001.

(i) Incorporation by reference. (A)Arizona Administrative Code. (1)AAC R20-2-701, R20-2-716, R20- 2-750 through 762, and Title 20, Chap. 2,Art. 7,Tables 1 and 2 (March 31, 2001).

(113) Revised statutes were submitted

onJanuary 22, 2004, by the Governor's designee as part ofthe submittal entitled Supplement to Cleaner Burning GasolineProgramStateImplementation PlanRevision.The incorporated materials from this submittal supercede those included in the submittals entitled SIPRevision,Arizona Cleaner Burning GasolinePermanentRules-Maricopa CountyOzoneNonattainment Area, submitted onFebruary 24, 1999, State ImplementationPlanRevisionforthe 

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### Federal Register/Vol. 69, No. 43/Thursday, March 4, 2004/Rules and Regulations

Cleaner BurningGasolineProgramin theMaricopaCountyOzone Nonattainment Area, submitted on March 29, 2001, and Arizona Cleaner Burning GasolineRuletoRevise the StateImplementationPlan forthe MaricopaCountyCarbon Monoxide, Ozone,andPMIONonattainment Areas, submitted August 15, 2001.

(i) Incorporation byreference. (A)Arizona Revised Statutes. (1)ARS sections 49-541(1)(a), (b), and (c), 41-2124, 41-2123, 41-2113(B)(4), 41-2115, and 41-2066(A)(2) (as codified

onMarch 31, 2001).
[FRDoc. 04-4814 Filed 3-3-04; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 62 [PAl90-7008a; FRL-7631-7]
Approval and Promulgation of State Air Quality Plans for Designated Facilitiesand Pollutants; Commonwealth of Pennsylvania; Control of Emissions from Existing Small Municipal Waste Combustion Units

AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule.

SUMMARY: EPA is taking direct final action to approve a section 111(d)/129 negative declaration submitted by the Pennsylvania Department of Environmental Protection (PADEP). The negative declaration certifies that small municipal waste combustion (MWC) units, subject to the requirements of sections 111(d) and 129 ofthe Clean Air Act (the Act), do not exist within its air pollution control jurisdiction, excluding the jurisdictions ofthe Health Departments (airpollution control agencies) in Allegheny and Philadelphia counties. DATES: This rule is effective on May 3, 2004 without further notice, unless EPA receives adverse written comment by April 5, 2004. IfEPA receives such comments, itwill publish a timely withdrawal ofthe direct final rule in the Federal Register and inform the public that the rule will not take effect. ADDRESSES: Comments may be submitted eitherby mail or electronically. Written comments shouldbe mailed to Walter Wilkie, Chief,Air Quality Analysis Branch, Mailcode 3AP22, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Electronic comments should be
sent either to wilkie.walter@epa.govor to http://www.regulations.gov, which is

an alternative method for submitting electronic comments to EPA. To submit comments, please follow the detailed instructions described in part II ofthe Supplementary Information section. Copies ofthe documents relevant to this action are available for public inspection during normal business hours atthe Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. FOR FURTHER INFORMATION CONTACT: James B. Topsale, P.E., at (215) 814- 2190, orby e-mail at topsale.jim@epa.gov. SUPPLEMENTARY INFORMATION:

I. Background
Sections 111(d) and 129 ofthe Act requires states to submit plans to control certain pollutants (designated pollutants) at existing solid waste combustor facilities (designated facilities) whenever standards of performance have been established under section 111(b) for new sources of the same type, and EPA has established emission guidelines (EG) for such existing sources. A designated pollutant is any pollutant for which no air quality criteria have been issued, and which is
not included on a listpublished under section 108(a) or section 112(b)(1)(A) of the CAA, but emissions ofwhich are subject to a standard ofperformance for

new stationary sources. However, section 129 ofthe Act, alsorequires EPA
to promulgate EG for MWC units that emit amixture ofair pollutants. These pollutants include organics (i.e., dioxins/furans), carbon monoxide, metals (cadmium, lead, mercury), acid gases (hydrogen chloride, sulfur dioxide, and nitrogen oxides) and particulate matter (including opacity). OnDecember 6, 2000 (65 FR 76350 and 76378), EPA promulgated small municipal waste combustion unit new

source performance standards, 40 CFR part 60, subpart AAAA, and emission guidelines (EG), subpart BBBB, respectively. The designated facility to which the EG apply is each existing small MWC unit that has a design combustion capacity of35 to 250 tons per day ofmunicipal solidwaste (MSW) and commenced construction onor before August 30, 1999. SubpartB of40 CFR part 60 establishes procedures to be followed andrequirements to be met in the development and submission ofstate plans for controlling designated pollutants. Also, 40 CFR part 62 provides the procedural framework for the submission ofthese plans. When designated facilities are located in a state, the state mustthen develop and submit a planfor the control ofthe designated pollutant. However, 40 CFR 60.23(b) and 62.06 provide that ifthere

are no existing sources ofthe designated pollutant in the state, the state may submit a letter ofcertification to that effect (i.e.,negative declaration) in lieu ofa plan.The negative declaration exempts the state fromthe requirements ofsubpart Bthatrequire the submittal ofa 111(d)/129 plan.

The Harrisburg Materials, Energy, Recycling and Resource Recovery Facilitywas the onlyknown designated facility (basedon the derated capacity of its two combustion units) subject to the EG. However, onJune 18, 2003, the City ofHarrisburg permanently ceased operation ofits two small MWC units. Permanent closure ofthe units was confirmed by PADEP staffduring inspections ofthe facility on August 4 and 11, 2003.

II. FinalEPAAction

The PADEP has determined that there

are no designated facilities, subject to the small MWC unit EGrequirements, in its air pollution control jurisdiction. Accordingly, the PADEP Bureau ofAir Quality Director has submitted to EPA

a negative declaration letter certifying this fact. The submittal date ofthe letter is October 30, 2003.

Therefore, EPA is amending part 62 to reflect the receipt ofthe negative declaration letter fromthe PADEP. Amendments arebeing made to 40 CFR part 62, subpart NN (Pennsylvania). These amendments exclude the local Pennsylvania airpollution control jurisdictions that submitted their own approvable negative declarationsAllegheny andPhiladelphia (City) counties.

After publication ofthis Federal Register notice, ifa small MWC unitis laterfound withinjurisdiction ofthe PADEP, then that unit will become subject to the requirements ofthe Federal small MWC 111(d)/129 plan, as promulgated onJanuary 31, 2003 (68FR 5144).

EPA is publishing this rulewithout prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse
comment. However, in the "Proposed Rules" section oftoday's Federal Register, EPA is publishing a separate document that will serve as the proposal
to approve the section 111(d)/129 negative declaration ifadverse
comments are filed. Thisrule will be effective on May 3, 2004 without further 

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HeinOnline -- 69 Fed. Reg. 10165 2004