Interim Final Determination that State Has Corrected the Deficiency State of Arizona; Maricopa County

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AZ 086-0017c; FRL-6438-3]

Interim Final Determination that State Has Corrected the

Deficiency State of Arizona; Maricopa County

AGENCY: Environmental Protection Agency (EPA).

ACTION: Interim final determination.

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SUMMARY: Elsewhere in today's Federal Register, EPA has published a

direct final rulemaking fully approving the State of Arizona's

submittal of Maricopa County's Rule 336--Surface Coating Operations.

EPA has also published a proposed rulemaking to provide the public with

an opportunity to comment on EPA's action. If a person submits adverse

comments on EPA's final action, EPA will withdraw its direct final rule

and will consider any comments received before taking final action on

the State's submittal. Based on the full approval, EPA is making an

interim final determination by this action that the State has corrected

the deficiency for which a sanctions clock began on March 11, 1998.

This action will defer both the imposition of the offset sanction and

the imposition of the highway sanction. Although this action is

effective upon publication, EPA will take comment. If no comments are

received on EPA's approval of the State's submittal, the direct final

action published in today's Federal Register will also finalize EPA's

determination that the State has corrected the deficiency that started

the sanctions clock. If comments are received on EPA's proposed

approval and this interim final action, EPA will publish a final action

taking into consideration any comments received.

DATES: Effective date: September 20, 1999.

[[Page 50763]]

Comment date: Comments must be received by October 20, 1999.

ADDRESSES: Written comments should be sent to Andrew Steckel at the

Region IX office listed below. The state submittal and EPA's analysis

for that submittal, which are the basis for this action, are available

at EPA's Region IX office during normal business hours. Copies of the

submitted rule revisions are available for public review at the

following locations:

Rulemaking Office (AIR-4), Air Division, U.S. Environmental

Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA

94105;

Environmental Protection Agency, Air Docket (6102), 401 ``M''

Street, SW., Washington, D.C. 20460;

Arizona Department of Environmental Quality, 3003 North Central

Avenue, Phoenix, AZ 85012; and,

Maricopa County Environmental Services Department, 1001 North

Central Ave., Phoenix, AZ 85004

FOR FURTHER INFORMATION CONTACT: Jerald S. Wamsley, Rulemaking Office,

AIR-4, Air Division, U.S. Environmental Protection Agency, Region IX,

75 Hawthorne Street, San Francisco, CA 94105, Telephone: (415) 744-

1226.

SUPPLEMENTARY INFORMATION:

I. Background

On February 26, 1997, Arizona submitted Maricopa County Rule 336--

Surface Coating Operations, which EPA disapproved in part on February

9, 1998. (See 63 FR 6487.) Beginning on March 11, 1998, EPA's

disapproval action started an 18-month clock for the imposition of one

sanction (followed by a second sanction 6 months later) and a 24-month

clock for promulgation of a Federal Implementation Plan (FIP).

The State submitted a revised rule on August 4, 1999. EPA has taken

direct final action on this submittal pursuant to its modified direct

final policy set forth at 59 FR 24054 (May 10, 1994). In the Rules

section of today's Federal Register, EPA has issued a direct final full

approval of Arizona's submittal of Maricopa County Rule 336. In

addition, in the Proposed Rules section of today's Federal Register,

EPA has proposed full approval of the State's submittal.

Based on the direct final full approval set forth in today's

Federal Register, EPA believes that it is more likely than not that

Maricopa County has corrected the original disapproval deficiency.

Therefore, EPA is taking this final rulemaking action, effective on

publication, finding that Maricopa County has corrected the deficiency.

However, EPA is also providing the public with an opportunity to

comment on this final action. If, based on any comments on this action

and any comments on EPA's proposed full approval of the State's

submittal, EPA determines that the State's submittal is not fully

approvable and this final action was inappropriate, EPA will either

propose or take final action finding that the State has not corrected

the original disapproval deficiency. As appropriate, EPA will also

issue an interim final determination or a final determination that the

deficiency has been corrected.

This action does not stop the sanctions clock that started for this

area on March 11, 1998. However, this action will defer the imposition

of the offsets sanction and will defer the imposition of the highway

sanction. See 59 FR 39832 (August 4, 1994). If EPA's direct final

action fully approving the State's submittal becomes effective, such

action will permanently stop the sanctions clock and will permanently

lift any imposed, stayed or deferred sanctions. If EPA must withdraw

the direct final action based on adverse comments and EPA subsequently

determines that the State, in fact, did not correct the disapproval

deficiency, EPA will also determine that the State did not correct the

deficiency and the sanctions consequences described in the sanctions

rule will apply. See 59 FR 39832, to be codified at 40 CFR 52.31.

II. EPA Action

EPA is taking interim final action finding that Maricopa County has

corrected the disapproval deficiency that started the sanctions clock.

Based on this action, imposition of the offset sanction will be

deferred and imposition of the highway sanction will be deferred until

EPA's direct final action fully approving the State's submittal becomes

effective or until EPA takes action proposing or finally disapproving

in whole or part the State submittal. If EPA's direct final action

fully approving the State submittal becomes effective, at that time any

sanctions clocks will be permanently stopped and any imposed, stayed or

deferred sanctions will be permanently lifted.

Because EPA has determined preliminarily that the State has an

approvable rule, relief from sanctions should be provided as quickly as

possible. Therefore, EPA is invoking the good cause exception to the

30-day notice requirement of the Administrative Procedure Act because

the purpose of this action is to relieve a restriction. See 5 U.S.C.

553(d)(1).

III. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from Executive Order 12866, Regulatory Planning and

Review.

B. Executive Order 12875

Under Executive Order 12875, Enhancing the Intergovernmental

Partnership, EPA may not issue a regulation that is not required by

statute and that creates a mandate upon a State, local or tribal

government, unless the Federal government provides the funds necessary

to pay the direct compliance costs incurred by those governments, or

EPA consults with those governments. If EPA complies by consulting,

Executive Order 12875 requires EPA to provide to the Office of

Management and Budget a description of the extent of EPA's prior

consultation with representatives of affected State, local and tribal

governments, the nature of their concerns, copies of any written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, Executive Order 12875

requires EPA to develop an effective process permitting elected

officials and other representatives of State, local and tribal

governments ``to provide meaningful and timely input in the development

of regulatory proposals containing significant unfunded mandates.''

Today's rule does not create a mandate on State, local or tribal

governments. The rule does not impose any enforceable duties on these

entities. Accordingly, the requirements of section 1(a) of Executive

Order 12875 do not apply to this rule.

C. Executive Order 13045

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. This rule is not subject to

Executive Order 13045 because it does not involve decisions intended to

mitigate environmental health or safety risks.

[[Page 50764]]

D. Executive Order 13084

Under Executive Order 13084, Consultation and Coordination with

Indian Tribal Governments, 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 Office of Management and Budget, 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. 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 (RFA) 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 Clean Air 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

Clean Air Act, preparation of flexibility analysis would constitute

Federal inquiry into the economic reasonableness of state action. The

Clean Air Act forbids EPA to base its actions concerning SIPs on such

grounds. 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

(``Unfunded Mandates Act''), 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.

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. 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).

H. Petitions for Judicial Review

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 November 19, 1999. 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, Hydrocarbons,

Incorporation by reference, Intergovernmental relations, Ozone,

Reporting and recordkeeping requirements, Volatile organic compounds.

Dated: September 3, 1999.

Laura Yoshii,

Acting, Regional Administrator, Region IX.

[FR Doc. 99-24433 Filed 9-17-99; 8:45 am]

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