Approval and Promulgation of Implementation Plans; Arkansas; Regulation 19 and 26

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The EPA is approving the recodification of and revisions to the Arkansas State Implementation Plan (SIP or plan). The Arkansas Department of Environmental Quality (ADEQ) adopted revisions to Regulation 19 on January 22, 1999. The Governor of Arkansas submitted these revisions to EPA on March 5, 1999. The EPA also incorporates into the Arkansas SIP portions of Arkansas' regulation for its Operating Permits Program (Regulation 26) which relate to the construction and modification of major sources. This is necessary because the submitted SIP revision incorporates these provisions to ensure that major sources which must receive an operating permit meet the Federal requirements relating to the construction and modification of major sources as defined under title I of the Clean Air Act (Act).

Furthermore, EPA approves revisions to Arkansas' program for the prevention of significant deterioration (PSD) of air quality to replace the increments for total suspended particulates (TSP) with increments for particulate matter less than 10 micrometers (PM-10). In conjunction with this action, EPA also removes the TSP area designation tables in title 40 of the CFR part 81 for Arkansas. The EPA is taking no action on Chapter 8 of Regulation 19 which pertains to designated facilities. The EPA will act on Chapter 8 in a separate action.

This action also recodifies, with minor revisions, several provisions of its current SIP into Chapters 1, 2, 3, 5, 6, 7, and 10.

The EPA approves these revisions based upon a finding that the regulations meet the requirements of the Act pertaining to the approval of SIPs and the Federal regulations which describe the requirements that a SIP must meet.

EFFECTIVE DATE:

This rule is effective on November 15, 2000.

ADDRESSES:

Copies of documents relevant to this action, including the Technical Support Document (TSD), are available for public inspection during normal business hours at the following locations. Anyone wanting to examine these documents should make an appointment with the appropriate office at lease two working days in advance.

EPA, Region 6, Air Permits Section (6PD-R), 1445 Ross Avenue, Dallas, Texas 75202-2733.

ADEQ, Division of Air Pollution Control, 8001 National Drive, P.O. Box 8913, Little Rock, Arkansas 72219-8913.

FOR FURTHER INFORMATION CONTACT:

Stanley M. Spruiell of the EPA Region 6 Air Permits Section at (214) 665-7212 at the address above or at spruiell.stanley@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document “we,” “us,” or “our” means EPA.

Table of Contents

I. What Action Are We Taking?

II. What Is the Background for This Action?

III. Are There Provisions of Regulation 19 That We Are Not Acting on in Today's Action?

IV. Prevention of Significant Determination (PSD) of Air Quality.

V. Major Source Permitting Procedures.

VI. Sources Subject to Provisions of Sections 111 and 112 of the Act.

VII. Final Action.

VIII. Administrative Requirements.

I. What Action Are We Taking?

We are finalizing our approval of Regulation 19 of ADEQ, except for Chapter 8—Designated Facilities. Regulation 19 revises and recodifies the Arkansas SIP. The submitted regulation includes provisions which address the requirements of the Act and ensures the attainment and maintenance of the National Ambient Air Quality Standards (NAAQS) that we promulgated under section 109 of the Act. The ADEQ adopted and submitted Regulation 19 under section 110 of the Act. The regulation includes:

• Enforceable emission limitations and other control measures and techniques,
• A program for enforcement of such measures,
• Provisions for the regulation of the modification and construction of stationary sources, and;
• Other measures required under section 110 of the Act.

We are also finalizing the approval of the SIP portions of Arkansas Regulation 26—Regulation of the Arkansas Operating Permit Program, adopted July 23, 1993, and submitted to EPA on October 29, 1993. This action approves the provisions of Regulation 26 that are incorporated by reference by Regulation 19, Chapter 11. The provisions of Regulation 26 so incorporated are the provisions of Regulation 26 that meet the Federal requirements applicable to new and modified major sources that are permitted under Regulation 26.

We have reviewed the submittal and determined that Regulation 19 and the incorporated provisions of Regulation 26 meet the requirements of the Act.

Furthermore, we approve revisions to Arkansas' program for PSD to replace the increments for TSP with increments for PM-10. In conjunction with this action, we are removing the TSP area designation tables in 40 CFR part 81 for Arkansas.

We are taking no action on Chapter 8 of Regulation 19 which pertains to designated facilities. We will act on Chapter 8 in a separate action.

We have also prepared a TSD which contains a detailed analysis of our evaluation and proposed approval of Regulation 19. The TSD is included as part of the public docket and is available at the addresses listed above.

II. What Is the Background for This Action?

On May 9, 2000, we published a notice of proposed rulemaking (NPR) proposing approval of Regulation 19 and the incorporated provisions of Regulation 26. In the NPR, we determined that Regulation 19 and the incorporated portions of Regulation 26 meet the requirements of the Act. The NPR provided opportunity for the public to comment on the proposed action. The public comment period for our proposed action ended June 8, 2000. We received no comments on the NPR. As a result, we are finalizing our proposed approval without changes. For more details on these submittals, please refer to the proposed rulemaking and the TSD.

III. Are There Provisions of Regulation 19 That We Are Not Acting on in Today's Action?

We are taking no action on Chapter 8—Designated Facilities. Designated facilities are regulated under section 111(d) of the Act. Under section 111(d), emission standards are to be adopted by the States and submitted to EPA for approval. These standards limit the emissions of designated pollutants from existing facilities which, if new, would be subject to the New Source Performance Standards promulgated by EPA under section 111 of the Act and in 40 CFR part 60. The procedures under which States submit these plans to control existing sources are defined in 40 CFR part 60, subpart B. The submittal and review process of these State Plans is carried out separately from other SIP activities. We are thus taking no action on Chapter 8 in today's action.

IV. Prevention of Significant Deterioration (PSD) of Air Quality

Arkansas recodified its PSD program into Regulation 19, Chapter 9. Chapter 9 recodifies the PSD regulations without substantive change except as discussed below. Arkansas revised Chapter 9 to incorporate the PSD increments for PM-10 promulgated by EPA on July 3, 1993. Arkansas changed the date of which the Federal regulations are incorporated by reference from June 28, 1989, to June 3, 1994 (the effective date of the PM-10 increments).

We have reviewed this revision and found that it addresses all of the required regulatory revisions for PM-10 increments. In today's action, we approve the recodification of Arkansas' PSD program and the revisions to incorporate the PM-10 increments into the SIP. Consistent with Arkansas' revisions, we are also removing the TSP area designation tables in 40 CFR part 81 for Arkansas. The NPR and the TSD contain a more detailed analysis of the changes that Arkansas made to its PSD regulations.

V. Major Source Permitting Procedures

Chapter 11 of Regulation 19 addresses the permitting procedures for major sources which are also subject to Regulation 26—Regulations of the Arkansas Operating Permit Program. Regulation 26 is Arkansas' regulation for its Operating Permit Program under title V of the Act. Chapter 9 of Regulation 19 contains the process, already approved by EPA for issuance of a new major source or a major modification of an existing source which is major for purposes of PSD by virtue of incorporation by reference of the provisions of 40 CFR 52.21(b)-(r). Chapter 11 requires major sources which are subject to Regulation 26 to also have their permit applications processed in accordance with the procedures contained in Regulation 26, which are incorporated by reference. Thus, Chapter 11 creates the connection between the PSD and title V programs to allow Arkansas to issue one permit to its sources which are defined as major under both programs.

For minor sources, the permitting process is contained in Chapter 4 of Regulation 19 which complies with 40 CFR 51.160-51.164. Chapters 4 and 9 of Regulation 19 do not, however, fully cover all sources defined as major sources under section 302(j) of the Act. Chapter 11 is necessary to provide a process for permitting the following:

• Sources which are major for purposes of PSD but undergo a physical change or change in the method of operation which does not result in a significant net emission increase, i.e., minor modifications. Such change therefore is not subject to PSD review. Subpart I, however, applies to the construction and modification of all sources, including major and minor sources. Such change, therefore, must meet the applicable requirements of subpart I, sections 51.160-51.164. Regulation 26 contains the provisions which satisfy these provisions of subpart I. These provisions are incorporated into Regulation 19 by Chapter 11.

• A source which is major for title V but not major for PSD.

This would include a source whose potential to emit is 100 tons per year (TPY) or more but less than 250 TPY and is not one of the source types listed in 40 CFR 52.21(b)(1). Although a new or modified source which is not a PSD major source is not subject to PSD, the applicable requirements of subpart I, sections 51.160-51.164 nonetheless continue to apply as explained above. Regulation 26 contains the provisions which satisfy these provisions of subpart I. These provisions are incorporated into Regulation 19 by Chapter 11.

Chapter 11 incorporates the applicable requirements of 40 CFR part 51, subpart I (subpart I) that are in Regulation 26 into Regulation 19, which we are approving into the SIP. By approving Chapter 11, we are approving the subpart I provisions of Regulation 26 which are incorporated by reference.

Through Chapter 11, Arkansas will ensure that the construction and modification of sources subject to the preconstruction review requirements of the Act will meet the applicable requirements of subpart I. The NPR and TSD include our analysis of the provisions of Regulation 26 which ADEQ incorporates by reference into Regulation 19. The TSD describes how Regulation 26 meets the requirements of subpart I. It further demonstrates that the procedures in Regulation 26 will ensure that modifications which occur at title V sources will satisfy the requirements of the Act and subpart I.

Our analysis of these provisions of Regulation 26 are from the version of Regulation 26 which Arkansas adopted July 23, 1993, and submitted to us on October 29, 1993. We approved this version of Regulation 26 at 60 FR 46171 (September 8, 1995) as satisfying the requirements for interim approval under 40 CFR part 70. We will need to reexamine our analysis if Arkansas adopts Regulation 26 with significant changes, and Arkansas may need to make further revisions to its SIP.

VI. Sources Subject to Provisions of Sections 111 and 112 of the Act

The NPR included references to provisions of Regulation 19 which require a source to meet the applicable requirements of section 111 of the Act (Standards of Performance for New Stationary Sources) and section 112 of the Act (National Emission Standards for Hazardous Air Pollutants). We regulate the requirements of section 111 of the Act under 40 CFR part 60 and the provisions of section 112 of the Act under 40 CFR parts 61 and 63. As worded in the NPR, a reader may mistakenly conclude that we were approving the requirements of 40 CFR parts 60, 61, and 63 into the SIP. This is not the case. We were stating that Regulation 19 identifies these requirements as the Federal programs that ADEQ implements and that sources subject to the requirements of sections 111 and 112 of the Act must continue to meet these requirements in the context of permitting under Regulation 19.

VII. Final Action

In today's action, we are promulgating final approval of Regulations 19 and 26 as described in Table 1 below.

We are taking no action on Chapter 8—Designated Facilities—in today's proposal. As discussed in section III, we review and approve the State plans for designated facilities under subpart B of 40 CFR part 60. We will review and process Chapter 8 of Regulation 19 in a separate action.

VIII. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”

B. Executive Order 13132

Executive 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) revokes and replaces Executive Order 12612, “Federalism,” and Executive Order 12875, “Enhancing the Intergovernmental Partnership.” Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that 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.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. The EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

This final rule will not 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, 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 Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

C. Executive Order 13045

Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885,April 23, 1997), applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This final rule is not subject to Executive Order 13045 because it approves a State program.

D. Executive Order 13084

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13084 requires EPA to provide to the OMB, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.”

Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. This action does not involve or impose any requirements that affect Indian tribes. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act, 5 U.S.C. 600 et seq., generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. This final rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because the Federal SIP approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities. Moreover, due to the nature of the Federal-State relationship under the Act, preparation of a flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Act forbids EPA to base its actions concerning SIPs on such grounds. See Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995, signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated annual costs to State, local, or tribal governments in the aggregate; or to private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

The EPA has determined that the approval action promulgated does not include a Federal mandate that may result in estimated annual costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action approves pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.

G. Submission to Congress and the Comptroller General

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. The 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 can not 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). This rule will be effective November 15, 2000.

H. Petitions for Judicial Review

Under section 307(b)(1) of the Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 15, 2000. 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

40 CFR Part 52

• Environmental protection
• Air pollution control
• Carbon monoxide
• Hydrocarbons
• Lead
• Nitrogen oxides
• Ozone
• Particulate matter
• Sulfur oxides
• Volatile organic compounds

40 CFR Part 81

• Environmental protection
• Air pollution control
• National parks
• Wilderness areas

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

Parts 52 and 81, chapter I, title 40 of the CFR is amended as follows:

PART 52—[AMENDED]

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

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

Subpart E—Arkansas

2. In § 52.170(c), the first table is deleted and replaced with a new table to read as follows:

3. Section 52.181 is amended by revising paragraph (a) to read as follows:

PART 81—[AMENDED]

1. The authority citation for part 81 continues to read as follows:

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

Subpart C—Section 107 Attainment Status Designations

2. Section 81.304 is amended by removing the table for TSP and adding a table for PM-10 to read as follows: