Approval and Promulgation of Air Quality Implementation Plans; Arkansas; Prevention of Significant Deterioration and New Source Review; Economic Development Zone for Crittenden County, AR; and Stage I Vapor Recovery

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is approving revisions to the Arkansas State Implementation Plan (SIP) that include changes made to Arkansas regulations entitled, “Regulations of the Arkansas Plan of Implementation for Air Pollution Control” and “Nonattainment New Source Review Requirements.” The revisions amend the State's permitting rules in order to address revisions to the Federal New Source Review (NSR) regulations, which were promulgated by EPA on December 31, 2002 and reconsidered with minor changes on November 7, 2003 (collectively, these two final actions are called the “2002 NSR Reform Rules”). Prevention of Significant Deterioration (PSD) and Nonattainment NSR (NNSR) programs, together with the minor preconstruction permit program required by the Federal Clean Air Act (“Act”), are commonly referred to as the “NSR programs.” Arkansas revised its preconstruction permitting rules that affect major sources and major modifications to include provisions for baseline emissions calculations, an actual-to-projected-actual methodology for calculating emissions changes, options for plantwide applicability limits (PALs), and recordkeeping and reporting requirements. The revisions also include non-substantive revisions to previously SIP-approved regulations and new regulations for implementing the permitting provisions for the 8-Hour Ozone National Ambient Air Quality Standard-Phase 2, Economic Development Zone in Crittenden County, and Stage I Vapor Recovery. Finally, EPA is taking no action on provisions that relate to designated facilities. We are approving the revisions because we find the changes consistent with EPA's implementing regulations, guidance, and policy and with section 110(l) of the Act.

DATES:

This final rule is effective on May 14, 2007.

ADDRESSES:

EPA has established a docket for this action under Docket ID No. EPA-R06-OAR-2005-AR-0001. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., confidential business information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at the Air Permits Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733. The file will be made available by appointment for public inspection in the Region 6 Freedom of Information Act Review Room between the hours of 8:30 am and 4:30 pm weekdays except for legal holidays. Contact the person listed in the FOR FURTHER INFORMATION CONTACT paragraph below to make an appointment. If possible, please make the appointment at least two working days in advance of your visit. There will be a 15 cent per page fee for making photocopies of documents. On the day of the visit, please check in at the EPA Region 6 reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas.

The State submittal is also available for public inspection at the State Air Agency listed below during official business hours by appointment:

Arkansas Department of Environmental Quality, Air Division, 8001 National Drive, P.O. Box 8913, Little Rock, Arkansas 72219-8913.

FOR FURTHER INFORMATION CONTACT:

Mr. Stanley M. Spruiell, Air Permits Section (6PD-R), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-7212; fax number (214) 665-7263; or e-mail address spruiell.stanley@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document any reference to “we,” “us,” or “our” shall mean the EPA.

Outline

I. What Action Is EPA Taking Today?

II. What Is the Background for This Action?

III. Statutory and Executive Order Reviews

I. What Action Is EPA Taking?

EPA is taking final action to approve revisions to the Arkansas SIP that were submitted on February 3, 2005, and July 3, 2006, by the Governor of Arkansas. The 2005 submittal consists of revisions to “Regulation No. 19—Regulations of the Arkansas Plan of Implementation for Air Pollution Control.” The 2006 submittal consists of further revisions to “Regulation No. 19—Regulations of the Arkansas Plan of Implementation for Air Pollution Control” and a new “Regulation No. 31—Nonattainment New Source Review Requirements.” The revisions were made to update the Arkansas NSR programs to make them consistent with changes to the Federal NSR regulations published on December 31, 2002 (67 FR 80186) and November 7, 2003 (68 FR 63021). These two EPA rulemakings are commonly referred to as the “2002 NSR Reform Rules.”

These SIP revisions also add provisions for implementing the air permitting requirements for the 8-hour ozone national ambient air quality standard-phase 2 (promulgated November 29, 2005 (70 FR 71611)), Economic Development Zone rules that implement section 173(a)(1)(B) of the Act, and provisions for Stage I Vapor Recovery. In addition, Arkansas revised Regulation No. 19 to make the following non-substantive changes (which do not change the regulatory requirements): redesignated the subdivisions from “Section” to “Reg.”; changed references to “Arkansas Department of Pollution Control and Ecology” to “Arkansas Department of Environmental Quality”; corrected typographical errors and grammar; and improved readability and clarity. EPA is taking no action on Chapter 8 of Regulation No. 19 “111(d) Designated Facilities.”

On December 1, 2006 (71 FR 69519), EPA published a proposed rulemaking in which we proposed to approve these SIP revisions. The December 1, 2006, proposal provides detailed information about the Arkansas SIP revisions that are being approved today. The proposal also provides a detailed analysis of EPA's rationale for approving the Arkansas SIP revisions. In the proposal, we provided opportunity for public comment on the proposed action. The public comment period for this proposed rulemaking ended January 2, 2007. We received no comments, adverse or otherwise, on the proposed rulemaking. We are therefore finalizing our proposed approval without changes. For more details on these submittals, please refer to the proposed rulemaking described above and the Technical Support Document (TSD), which is in the docket for this action.

In summary, EPA is approving revisions to the Arkansas SIP (revisions to Regulation No. 19 and new Regulation No. 31) submitted by the State of Arkansas on February 3, 2005 and July 3, 2006. We are taking no action on Chapter 8 of Regulation No. 19.

II. What Is the Background for This Action?

On December 31, 2002, EPA published final rule changes to 40 Code of Federal Regulations (CFR) parts 51 and 52, regarding the Act's PSD and NNSR programs. See 67 FR 80186. On November 7, 2003, EPA published a final action on the reconsideration of the December 31, 2002 final rule changes. See 68 FR 63021. In the November 7th final action, EPA added the definition of “replacement unit,” and clarified an issue regarding PALs. The December 31, 2002, and the November 7, 2003, final actions are collectively referred to as the “2002 NSR Reform Rules.” The purpose of today's action is to approve the SIP submittals from the State of Arkansas, which adopts EPA's 2002 NSR Reform Rules. For additional information on the 2002 NSR Reform Rules, see 67 FR 80186 (December 31, 2002), and http://www.epa.gov/nsr.

After the 2002 NSR Reform Rules were finalized and effective (March 3, 2003), various petitioners challenged numerous aspects of the 2002 NSR Reform Rules, along with portions of EPA's 1980 NSR Rules (45 FR 5276, August 7, 1980). On June 24, 2005, the D.C. Circuit Court of Appeals issued a decision on the challenges to the 2002 NSR Reform Rules. See New York v. United States, 413 F.3d 3 (D.C. Cir. June 24, 2005), rehearing en banc denied (Dec 09, 2005). In summary, the Court vacated portions of the rules pertaining to Clean Units and Pollution Control Projects, remanded a portion of the rules regarding recordkeeping, e.g., 40 CFR 51.165(a)(6) and 40 CFR 51.166(r)(6), and either upheld or did not comment on the other provisions included as part of the 2002 NSR Reform Rules. The EPA has not yet responded to the Court's remand regarding the recordkeeping provisions. Today's action is consistent with the decision of the D.C. Circuit Court of Appeals because Arkansas' submittal does not include any portions of the 2002 NSR Reform Rules that were vacated as part of the June 2005 decision.

The 2002 NSR Reform Rules require that state agencies adopt and submit revisions to their SIP permitting programs implementing the minimum program elements of the 2002 NSR Reform Rules no later than January 2, 2006. See 40 CFR 51.166(a)(6)(i) (requiring state agencies to adopt and submit PSD SIP revisions within three years after new amendments are published in the Federal Register). State agencies may meet the requirements of 40 CFR part 51 and the 2002 NSR Reform Rules, with regulations that are different than, but equivalent to, Federal regulations. If, however, a state decides not to implement any of the new applicability provisions, that state must demonstrate that its existing program is at least as stringent as the Federal program. In adopting changes to Federal law, a state may write the Federal requirements into the state SIP or the state may incorporate the Federal rule into the SIP by referencing the citation of the Federal rule. As discussed in further detail in the proposed approval notice and in the TSD in the docket for this action, EPA determined the revisions contained in the Arkansas submittal are approvable for inclusion into the Arkansas SIP. The TSD includes a detailed evaluation of the Arkansas NSR SIP revisions, permitting provisions for implementing the 8-Hour Ozone NAAQs and the Crittenden County Economic Development Zone, Stage I Vapor Recovery rules, and non-substantive revisions to previously SIP-approved regulations. The TSD discusses how these regulations meet the applicable Federal requirements. We are approving the revisions because we find the changes consistent with EPA's implementing regulations, guidance, and policy and with section 110(l) of the Act.

III. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on: one or more Indian tribes, the relationship between the Federal Government and Indian tribes, or 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, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government, 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 alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. The EPA interprets Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), as applying only to those regulatory actions that concern health or safety risks such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045 because it would approve a state program. Executive Order 12898 (59 FR 7629 (February 16, 1994)) establishes federal executive policy on environmental justice. Because this rule merely approves a state rule implementing a Federal standard, EPA lacks the discretionary authority to modify today's regulatory decision on the basis of environmental justice considerations.

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. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the 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 June 11, 2007. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Carbon monoxide
• Intergovernmental relations
• Lead
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides
• Volatile organic compounds

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

40 CFR part 52 is amended as follows:

PART 52—[AMENDED]

The authority citation for part 52 continues to read as follows:

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

Subpart E—Arkansas

2. The table in § 52.170(c) entitled “EPA-Approved Regulations in the Arkansas SIP” is amended as follows:

a. By revising Regulation 19: Regulations of the Arkansas Plan of Implementation for Air Pollution Control.

b. By adding new entries for “Regulation No. 31: Nonattainment New Source Review Requirements” immediately following the entry for Section 26.604. The amendments read as follows: