Approval and Promulgation of Implementation Plans; Arkansas; Recodification of Air Quality Control Regulations and Correction of Sulfur Dioxide Enforceability Deficiencies

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AR-2-1-5646a; FRL-5990-9]

Approval and Promulgation of Implementation Plans; Arkansas;

Recodification of Air Quality Control Regulations and Correction of

Sulfur Dioxide Enforceability Deficiencies

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: This action approves Arkansas Department of Pollution Control

and Ecology (ADPC&E) Regulation #19, as adopted by the Arkansas

Commission on Pollution Control and Ecology (Commission) on July 24,

1992, as a revision to the Arkansas State Implementation Plan (SIP).

Regulation #19, ``Compilation of Regulations of the Arkansas State

Implementation Plan for Air Pollution Control,'' replaces the air

quality control regulations formerly in the ``Regulations of the

Arkansas Plan of Implementation for Air Pollution Control''

(Regulations of the Plan), in the ``Prevention of Significant

Deterioration Supplement to the Regulations of the Arkansas Plan of

Implementation for Air Pollution Control,'' (PSD Regulations), and in

the ``Regulations for the Control of Volatile Organic Compounds'' (VOC

Regulations). Regulation #19 also corrects sulfur dioxide

(SO2) enforceability deficiencies in the Arkansas SIP. The

effect of this action is to approve all sections of Regulation #19,

except Section 19.8, into the Arkansas SIP.

DATES: This action is effective on June 9, 1998, unless adverse or

critical comments are received by May 11, 1998. If the effective date

is delayed, timely notice will be published in the Federal Register.

ADDRESSES: Written comments on this action should be addressed to Mr.

Thomas H. Diggs, Chief, Air Planning Section (6PD-L), at the EPA Region

6 Office listed below. Copies of the State submittal and the EPA

Evaluation Report 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 least two working days in advance.

Environmental Protection Agency, Region 6, Air Planning Section

(6PD-L), 1445 Ross Avenue, Dallas, Texas 75202-2733.

Arkansas Department of Pollution Control and Ecology, Division of

Air Pollution Control, 8001 National Drive, P.O. Box 8913, Little Rock,

Arkansas 72219-8913.

Documents which are incorporated by reference are available for

public inspection at the Air and Radiation Docket and Information

Center, Environmental Protection Agency, 401 M Street, SW., Washington,

DC 20460.

FOR FURTHER INFORMATION CONTACT: Bill Deese of the EPA Region 6 Air

Planning Section at (214) 665-7253 at the address above.

SUPPLEMENTARY INFORMATION:

I. Background

The EPA required the State of Arkansas to correct enforceability

deficiencies in its SO2 regulations and to correct

continuous emission monitoring requirements in its Plan for Designated

Facilities and Pollutants (111(d) Plan) for total reduced sulfur from

kraft pulp mills. Since the compilation of the existing State air

quality control regulations was somewhat confusing, the State decided

to combine the federally approved air quality control regulations into

a single Regulation #19. The State also decided to delete obsolete

materials and update the regulations in the Regulations of the Plan.

The EPA was supportive of the State making these revisions.

The Governor of Arkansas submitted Regulation #19, as adopted by

the Commission on July 24, 1992, to EPA on September 14, 1992, as a

revision to the Arkansas SIP. A public hearing on Regulation #19 was

held on May 28, 1992, in Little Rock, Arkansas.

Sections 19.1 through 19.7 of Regulation #19 replace the SIP-

approved regulations found in the Regulations of the Plan. Sections

19.9 and 19.10 are recodifications of the SIP-approved PSD Regulations

and the SIP-approved VOC Regulations respectively.

Section 19.8, 111(d) Designated Facilities, is a revision to the

State 111(d) Plan and is being acted upon in a separate Federal

Register action.

II. SO2 Enforceability Deficiencies Corrections

A nation-wide effort was undertaken to have SO2

enforceability deficiencies identified and corrected in SIPs before

operating permit programs become effective. Because the operating

permit programs will initially codify underlying SIP requirements, it

is important that the underlying SIP is enforceable so that permits

themselves will be enforceable.

The EPA Region 6 Office used the ``SO2 SIP

Enforceability Checklist'' to review the Arkansas regulations for

SO2 to prepare a list of enforceability deficiencies in the

Arkansas SIP. This checklist was included as an attachment to a

November 28, 1990, memorandum from the EPA Office of Air Quality

Planning and Standards to the EPA Regional Offices Air Branch Chiefs.

The checklist focused on the following topics: clarity, averaging times

consistent with protection of the SO2 National Ambient Air

Quality Standards (NAAQS), clear compliance determinations, continuous

emissions monitoring, adequate reporting and recordkeeping

requirements, director's discretion issues, and stack height issues.

These deficiencies in the Arkansas SIP have been corrected in

Sections 19.3 and 19.7 in Regulation #19.

Arkansas currently is attainment statewide for the SO2

NAAQS.

III. Organization of Regulation #19

Regulation #19 is organized as follows:

Section 19.1 Title & Purpose

Section 19.2 Definitions

Section 19.3 Protection of the National Ambient Air Quality

Standards

Section 19.4 Permits

Section 19.5 General Emissions Limitations Applicable to Equipment

Section 19.6 Upset Conditions, Revised Emissions Limitations

Section 19.7 Sampling, Monitoring, and Reporting Requirements

Section 19.8 111(d) Designated Facilities

Section 19.9 Prevention of Significant Deterioration Supplement

Section 19.10 Regulations for the Control of Volatile Organic

Compounds

IV. Review of Regulation #19

A brief discussion of each section of Regulation #19 is given

below. A more detailed review of some sections is given in the EPA

Evaluation Report.

[[Page 17681]]

A. Section 19.1 Title & Purpose

Section 19.1, Title & Purpose, replaces Sections 1, Title; Section

2, Purpose; Section 9, Severability; and Section 10, Effective Date, of

the Regulations of the Plan. Two new sections have been added: Section

19.1(c), Format, and Section 19.1(d), Applicability. According to

Section 19.1(d), the regulations in Regulation #19 `` * * * are

applicable to only those sources that are required to be regulated

under the Federal Clean Air Act.''

The first sentence in Section 19.1(a) states that Regulation #19

shall be referred `` * * * to as the `Regulations of the Plan,' the

`Plan,' the `State Implementation Plan,' the `SIP,' and `Regulation

#19.' '' Regulation #19 is not the entire plan (i.e., the Arkansas

SIP). The SIP-approved regulations are only one element of the State

plan. Also, Regulation #19 does not contain all of the Arkansas SIP-

approved regulations.

B. Section 19.2 Definitions

Section 19.2, Definitions, replaces Section 3, Definitions, in the

Regulations of the Plan.

Definitions of the following terms are identical to the SIP-

approved definitions in the Regulations of the Plan: Commission,

Director, Stack, Flue, Existing equipment, New equipment, Construction,

Major modification, Emission limitation, Emission standard, Particulate

matter, Particulate matter emissions, PM10, PM10

emissions, and Total suspended particulate.

The definitions of the following terms have been revised:

Department, Equipment, Opacity, Modification, National Ambient Air

Quality Standard, and Potential to emit.

The stack heights definitions required by section 123 of the Act

have been moved to Section 19.5(d) where the stack height definitions

found in 40 CFR 51.100 are incorporated by reference.

The following definitions have been deleted: Arkansas Air Pollution

Control Code, Equipment used in a manufacturing process, Incinerator,

Potential emission rate, Smoke, Standard smoke chart, Standard

conditions, and Air quality increment. Deleted definitions are not

required under the Federal Clean Air Act (the Act) or implementing

regulations. Therefore deletions are considered clarifications for

purposes of recodification.

Definitions of the following terms have been added: Air

contaminant, EPA, Regulated air pollutant, Secondary Emissions,

Stationary source, and Uncontrolled potential to emit. A definition of

Upset condition has been added in Section 19.6 of Regulation #19. The

added definitions are clarifications.

Terms are also defined in Sections 19.9 and 19.10.

C. Section 19.3 Protection of the National Ambient Air Quality

Standards

Section 19.3 gives, in general terms, the responsibilities of the

ADPC&E and of regulated sources in meeting and maintaining the NAAQS

found in 40 CFR 50.

D. Section 19.4 Permits

Section 19.4, Permits, is almost identical to the SIP-approved

Section 4, Permits, of the Regulations of the Plan. Section 4 of the

Regulations of the Plan was approved by EPA on October 5, 1976 (41 FR

43904), with the original Regulations of the Plan. The only revision to

Section 4 was approved by EPA on May 1, 1989 (54 FR 18494).

E. Section 19.5 General Emissions Limitations Applicable to Equipment

Section 19.5 replaces emission limitations in Section 5 and Section

8 of the Regulations of the Plan.

Section 19.5(c) is the visible emissions regulations from Sections

8(d) and 8(e) of the Regulations of the Plan.

Section 19.5(d) incorporates by reference the Federal stack height

provisions of 40 CFR 51.118 and the Federal stack height definitions

contained in 40 CFR 51.100(ff) through (kk).

The most obvious difference between Regulation #19 and the

regulations it replaces is the deletion of the compliance schedules in

Section 8(f) of the Regulations of the Plan. These compliance schedules

are for particulate matter emission limits for specific units at

sources. They were added to meet the compliance schedules requirements

of 40 CFR 51. These emission limits are no longer required to be in the

SIP regulations. The units that still exist are now covered by permits.

Figure 5(b) in the Regulations of the Plan, a graph showing

Allowable Particulate versus Process Weight Rate, has been deleted

because the figure is outdated and is no longer used by the State.

F. Section 19.6 Upset Conditions, Revised Emissions Limitations

Section 19.6 replaces Section 6, Upset Conditions, Revised

Emissions Limitations, in the Regulations of the Plan. This section

explains how the State will handle sources exceeding the emission

limits established in the SIP-approved regulations.

G. Section 19.7 Sampling, Monitoring, and Reporting Requirements

Section 19.7 replaces Section 7, Sampling and Monitoring

Requirements, in the Regulations of the Plan. In Section 19.7, the

State strengthened the regulation by correcting enforceability

deficiencies.

H. Section 19.8 111(d) Designated Facilities

Section 19.8 replaces Section 8.1, Designated Facilities, in the

Regulations of the Plan. Section 8.1 was added to the Regulations of

the Plan to meet the requirements of section 111(d) of the Act as

implemented in 40 CFR 60 subpart B and 40 CFR 62. Section 8.1 was

approved by EPA as part of the Arkansas 111(d) Plan on May 12, 1982 (47

FR 20490). Revisions to Section 8.1 and the State 111(d) Plan were

approved by EPA on September 12, 1984, and November 10, 1986. The

status of the Arkansas 111(d) Plan is given in 40 CFR 62 subpart E. No

part of Section 8.1 has ever been approved as part of the Arkansas SIP.

The EPA is taking action on Section 19.8 as a revision to the

Arkansas 111(d) Plan in a separate Federal Register action.

I. Section 19.9 Prevention of Significant Deterioration Supplement

Section 19.9 is almost identical to the PSD Regulations last

adopted by the State on May 25, 1990, and approved by EPA in the

Federal Register on May 2, 1991 (56 FR 20137). The State incorporates

by reference, with exceptions, the Federal PSD regulations in 40 CFR

52.24 as in effect June 28, 1989. The status of the Arkansas PSD

Regulations in the Arkansas SIP is given in 40 CFR 52.181.

J. Section 19.10 Regulations for the Control of Volatile Organic

Compounds

1. Background of the Arkansas VOC Regulations

A Federal Register action published March 3, 1978 (43 FR 08962),

determined that Pulaski County, Arkansas, did not meet the ambient

ozone monitoring requirements and was classified as nonattainment for

ozone. The VOC Regulations, first adopted by the Commission on March

23, 1979, were an element of a plan the State developed for reducing

ozone levels in Pulaski County. The regulations were conditionally

approved by EPA on January 29, 1980 (45 FR 06569).

[[Page 17682]]

Revisions to the regulations were approved by EPA on: August 15, 1980

(45 FR 54336), August 27, 1981 (46 FR 43146), ctober 13, 1981 (46 FR

50370), and February 8, 1983 (48 FR O5772). These VOC regulations

enabled Pulaski County to be redesignated to attainment for ozone on

September 26, 1984 (49 FR 37753). The Arkansas VOC Regulations apply

only to Pulaski County, Arkansas.

2. Section 19.10 Recodification of the VOC Regulations

The only significant change between Section 19.10 and the SIP-

approved VOC Regulations is that the term ``photochemical oxidant'' has

been replaced with the word ``ozone''. The EPA originally promulgated

the standard for photochemical oxidant rather than ozone. The EPA

changed the chemical designation of the standard from photochemical

oxidant to ozone on February 8, 1979 (44 FR 8202). The EPA approves of

the State changing the term ``photochemical oxidant'' to ``ozone'' in

this regulation. Other changes are only minor changes.

V. Final Action

The EPA is approving all sections, except Section 19.8, of ADPC&E

Regulation #19, ``Compilation of Regulations of the Arkansas State

Implementation Plan for Air Pollution Control,'' as adopted by the

Arkansas Commission on Pollution Control and Ecology on July 24, 1992,

effective August 30, 1992, and submitted by the Governor on September

14, 1992, as a revision to the Arkansas SIP. Regulation #19 replaces

the federally approved air quality control regulations formerly in the

``Regulations of the Arkansas Plan of Implementation for Air Pollution

Control,'' the ``Prevention of Significant Deterioration Supplement to

the Regulations of the Arkansas Plan of Implementation for Air

Pollution Control,'' and the ``Regulations for the Control of Volatile

Organic Compounds.''

The EPA is publishing this rule without prior proposal because the

Agency views this as a noncontroversial amendment and anticipates no

adverse comments. However, in the proposed rules section of this

Federal Register publication, EPA is publishing a separate document

that will serve as the proposal to approve the SIP revision should

relevant adverse comments be filed. This rule will be effective June 9,

1998 without further notice unless the Agency receives relevant adverse

comments by May 11, 1998.

If EPA receives such comments, then EPA will publish a document

withdrawing the final rule and informing the public that the rule did

not take effect. All public comments received will then be addressed in

a subsequent final rule based on the proposed rule. The EPA will not

institute a second comment period on the proposed rule. Only parties

interested in commenting on the proposed rule should do so at this

time. If no such comments are received, the public is advised that this

rule will be effective on June 9, 1998 and no further action will be

taken on the proposed rule.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any SIP. 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.

VI. Administrative Requirements

A. Executive Order (E.O.) 12866

The Office of Management and Budget has exempted this regulatory

action from E.O. 12866 review.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. See 5 U.S.C. 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

The 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 impose any new requirements, I certify that it does

not have a significant impact on any small entities affected. 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).

C. 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 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 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

preexisting 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.

D. Audit Privilege and Immunity Law

Nothing in this action should be construed as making any

determination or expressing any position regarding Arkansas' audit

privilege and immunity law (Arkansas Statutes Annotated Section 8-1-301

et seq. (1997)). The EPA will be reviewing the effect of the Arkansas

audit privilege and immunity law on various Arkansas environmental

programs, including those under the Act, and taking appropriate

action(s), if any, after thorough analysis and opportunity for Arkansas

to state and explain its views and positions on the issues raised by

the law. The action taken herein does not express or imply any

viewpoint on the question of whether there are legal deficiencies in

this or any Arkansas program resulting from the effect of the audit

privilege and immunity law. As a consequence of the review process, the

regulations subject to the action taken herein may be disapproved,

Federal approval may be withdrawn, or other appropriate action may be

taken, as necessary.

E. 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

[[Page 17683]]

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. This rule is not a

``major rule'' as defined by 5 U.S.C. 804(2).

F. 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 June 9, 1998. 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 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,

Hydrocarbons, Incorporation by reference, Intergovernmental relations,

Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and

recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

Dated: March 26, 1998.

Lynda F. Carroll,

Acting Regional Administrator, Region 6.

Part 52, chapter I, title 40 of the Code of Federal Regulations 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. Section 52.170 is amended by adding paragraph (c)(29) to read as

follows:

Sec. 52.170 Identification of plan.

* * * * *

(c) * * *

(29) Revisions to the Arkansas State Implementation Plan submitted

by the Governor on September 14, 1992.

(i) Incorporation by reference.

(A) Arkansas Department of Pollution Control and Ecology (ADPC&E)

Minute Order No. 92-55 passed July 24, 1992.

(B) ADPC&E Regulation #19, ``Compilation of Regulations of the

Arkansas State Implementation Plan for Air Pollution Control,'' except

Section 19.8, as adopted by the Arkansas Commission on Pollution

Control and Ecology on July 24, 1992, effective August 30, 1992.

(ii) Additional materials. None.

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

follows:

Sec. 52.181 Significant deterioration of air quality.

(a) The plan submitted by the Governor of Arkansas on April 23,

1981 (as adopted by the Arkansas Commission on Pollution Control and

Ecology (ACPCE) on April 10, 1981), June 3, 1988 (as revised and

adopted by the ACPCE on March 25, 1988), and June 19, 1990 (as revised

and adopted by the ACPCE on May 25, 1990), Prevention of Significant

Deterioration (PSD) Supplement Arkansas Plan of Implementation for Air

Pollution Control, as recodified in Regulation #19, Section 19.9,

Prevention of Significant Deterioration Supplement, submitted by the

Governor on September 14, 1992 (as adopted by the ACPCE on July 24,

1992), is approved as meeting the requirements of part C of the Clean

Air Act for preventing significant deterioration of air quality.

* * * * *

[FR Doc. 98-9554 Filed 4-9-98; 8:45 am]

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