This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

24074

Vol. 66, No. 92

Friday, May 11, 2001

1Pursuant to Section 110(1), EPA may not

approve a SIP revision if ‘‘the revision would

interfere with any applicable requirement

concerning attainment and reasonable further

progress, or any other applicable requirement of

this chapter.’’ See also CAA section 193, 42 U.S.C.

7575, and the definitions of ‘‘emission limitation’’

and ‘‘emission standard’’ contained in CAA section

302(k), 42 U.S.C. section 7602(k).

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[AZ103–0037; FRL–6978–1]

Revisions to the Arizona State

Implementation Plan, Arizona

Department of Environmental Quality

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA is proposing to approve

revisions to the Arizona Department of

Environmental Quality’s portion of the

Arizona State Implementation Plan

(SIP). These revisions concern the

establishment of affirmative defenses for

excess emissions due to malfunctions,

startups, and shutdowns, and reporting

requirements for excess emissions. We

are proposing to approve the rules

under the Clean Air Act as amended in

1990 (CAA or the Act). We are taking

comments on this proposal and plan to

follow with a final action.

DATES: Any comments must arrive by

June 11, 2001.

ADDRESSES: Mail comments to Ginger

Vagenas, Permits Office (AIR–3), U.S.

Environmental Protection Agency,

Region IX, 75 Hawthorne Street, San

Francisco, CA 94105–3901.

You can inspect copies of the

submitted SIP revisions and EPA’s

technical support document (TSD) at

our Region IX office during normal

business hours. You may also see copies

of the submitted SIP revisions at the

following locations:

Arizona Department of Environmental

Quality, Air Quality Division, 3033

North Central Avenue, Phoenix, AZ

85012.

FOR FURTHER INFORMATION CONTACT:

Ginger Vagenas, Permits Office (AIR–3),

U.S. Environmental Protection Agency,

Region IX, (415) 744–1252.

SUPPLEMENTARY INFORMATION:

Throughout this document, ‘‘we,’’ ‘‘us’’

and ‘‘our’’ refer to EPA.

Table of Contents

I. The State’s Submittal

A. What rules did the State submit?

B. Are there other versions of these rules?

C. What is the purpose of the submitted

rule revisions?

II. EPA’s Evaluation and Action

A. How is EPA evaluating the rules?

B. Do the rules meet the evaluation

criteria?

C. Public comment and final action.

III. Administrative Requirements

I. The State’s Submittal

A. What Rules Did the State Submit?

This proposal addresses two rules that

were adopted on February 15, 2001 and

submitted on March 26, 2001 by

Arizona Department of Environmental

Quality: R18–2–310, Affirmative

Defenses for Excess Emissions Due to

Malfunctions, Startup, and Shutdown;

and R18–2–310.01, Reporting

Requirements.

On May 1, 2001, this rule submittal

was found to meet the completeness

criteria in 40 CFR part 51 appendix V.

B. Are There Other Versions of These

Rules?

There are no previous versions of

Rules 310 or 310.01 in the SIP, although

the Arizona Department of Health

Services submitted an earlier version of

these rules (R9–3–309) to us on October

24, 1985. We proposed to approve Rule

R9–3–309 into the SIP on September 22,

1986, but did not take final action.

C. What Is the Purpose of the Submitted

Rules?

Emissions in excess of the limits that

apply to a source are violations of the

applicable emission limitation. State

agencies must always retain the option

to enforce such violations, however,

under certain circumstances, an

affirmative defense to enforcement

proceedings based on violations of

emission limits can be included in a

SIP. Rule 310 establishes an affirmative

defense to civil or administrative

enforcement proceedings, other than a

judicial action seeking injunctive relief,

providing certain criteria have been met.

Rule 310.01 sets out reporting

requirements that the source must meet

if it has emissions in excess of its limits.

II. EPA’s Evaluation and Action

How Is EPA Evaluating the Rules?

In determining the approvability of a

rule, EPA must evaluate the rule for

consistency with the requirements of

the Clean Air Act (CAA) and EPA

regulations, as found in section 110 and

part D of the CAA and 40 CFR part 51

(Requirements for Preparation,

Adoption and Submittal of

Implementation Plans). EPA’s

interpretation of these requirements

appears in EPA policy guidance

documents. EPA policy on excess

emissions occurring during startup and

shutdown is contained in a

memorandum dated September 20,

1999, entitled ‘‘State Implementation

Plans: Policy Regarding Excess

Emissions During Malfunctions,

Startup, and Shutdown’’ (the Excess

Emissions Policy). In general, the

guidance document cited above, as well

as other relevant and applicable

guidance documents, have been set

forth to ensure that submitted rules

meet Federal requirements, are fully

enforceable, and strengthen or maintain

the SIP.

B. Do the Rules Meet the Evaluation

Criteria?

We believe these rules are consistent

with the Clean Air Act and the relevant

policy and guidance regarding excess

emissions. Under the CAA, EPA has a

fundamental responsibility to ensure

that SIPs provide for attainment and

maintenance of the national ambient air

quality standards and protection

(NAAQS) of prevention of significant

deterioration (PSD) increments. See,

e.g., sections 110(a) and (l) of the CAA,

42 U.S.C. sections 7410(a) and (l) (EPA

cannot approve a SIP revision that

would interfere with attainment of a

NAAQS or any other requirement of the

CAA).1 Accordingly, EPA believes that

an acceptable affirmative defense

provision may only apply to actions for

penalties, but not to actions for

injunctive relief. This restriction

ensures that both state and federal

authorities remain able to protect air

quality standards and PSD increments.

Rule 310 includes the following

provisions:

Federal Register / Vol. 66, No. 92 / Friday, May 11, 2001 / Proposed Rules 24075

1. All periods of excess emissions are

treated as violations of the emission

limitation.

2. The rule provides an affirmative

defense to actions for penalties brought

for excess emissions that arise during

certain malfunction, startup, and

shutdown episodes. There is no

affirmative defense to actions for

injunctive relief.

3. The rule includes criteria

consistent with EPA’s excess emissions

policy that restrict the availability of

affirmative defenses to malfunctions

that are sudden, unavoidable, and

unpredictable, and to excess emissions

during startup and shutdown that could

not have been avoided through careful

planning and design. In all cases, all

possible steps must have been taken to

minimize excess emissions.

4. An affirmative defense is not

available if during the period of excess

emissions, there was an exceedence of

the relevant ambient air quality

standard that could be attributed to the

emitting source.

5. The defendant has the burden of

proof of demonstrating it has met the

criteria set out in Rule 310.

Rule 310.01 requires that the owner or

operator of a source must notify ADEQ

within 24 hours of learning that the

source has emitted pollutants in excess

of its limits. A detailed written report

must be submitted within 72 hours of

the initial notification. In order to

qualify for an affirmative defense under

Rule 310, the source must comply with

the requirements of Rule 310.01.

C. Public comment and final action.

Because EPA believes the submitted

rule fulfills all relevant requirements,

we are proposing to fully approve it as

described in section 110(k)(3) of the Act.

We will accept comments from the

public on this proposal for the next 30

days. Unless we receive convincing new

information during the comment period,

we intend to publish a final approval

action that will incorporate this rule

into the federally enforceable SIP.

Nothing in this action should be

construed as permitting or allowing or

establishing a precedent for any future

request for revisions to any state

implementation plan. Each request for

revision to the SIP shall be considered

separately in light of specific technical,

economic, and environmental factors

and in relation to relevant statutory and

regulatory requirements.

III. Administrative Requirements

Under Executive Order 12866 (58 FR

51735, October 4, 1993), this proposed

action is not a ‘‘significant regulatory

action’’ and therefore is not subject to

review by the Office of Management and

Budget. This proposed 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

proposed 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 proposes to

approve 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 proposed 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 proposed 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 proposed 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.).

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Hydrocarbons,

Intergovernmental relations, Ozone,

Reporting and recordkeeping

requirements, Volatile organic

compound.

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

Dated: May 4, 2001.

Michael Schultz,

Acting Regional Administrator, Region IX.

[FR Doc. 01–11916 Filed 5–10–01; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 52 and 81

[CO–001–0054; FRL–6978–2]

Approval and Promulgation of Air

Quality Implementation Plans; State of

Colorado; Denver 1-Hour Ozone

Redesignation to Attainment,

Designation of Areas for Air Quality

Planning Purposes, and Approval of

Related Revisions

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: On November 30, 2000, the

Governor of Colorado submitted a

request to redesignate the DenverBoulder metropolitan (Denver)

‘‘transitional’’ ozone nonattainment area

to attainment for the 1-hour ozone

National Ambient Air Quality Standard

(NAAQS). As part of this request, the

Governor asked that EPA parallel

process a proposed maintenance plan

for the Denver area. In conjunction with

the Governor’s submittal, EPA is also

proposing approval of revisions to

Colorado’s Regulation No. 3 ‘‘Air

Contaminant Emissions Notices’’ and

Colorado’s Regulation No. 7 ‘‘Emissions

of Volatile Organic Compounds’’ that

were previously submitted by Governor