E9-4802. Approval and Promulgation of Implementation Plans; Hawaii; Correction

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

Under the Clean Air Act, EPA is correcting errors in certain final rules approving or compiling the Hawaii state implementation plan. These errors relate to the title of the plan, removal of variance provisions, and compilations of federally-enforceable regulations. The intended effect is to ensure that the Hawaii state implementation plan is correctly identified in the applicable part of the Code of Federal Regulations.

DATES:

This rule is effective on May 15, 2009 without further notice, unless EPA receives adverse comments by April 15, 2009. If we receive such comments, we will publish a timely withdrawal in the Federal Register to notify the public that this direct final rule will not take effect.

ADDRESSES:

Submit comments, identified by docket number EPA-R09-OAR-2008-088F, by one of the following methods:

1. Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line instructions.

2. E-mail:[e-mail].

3. Mail or deliver: Ginger Vagenas (AIR-2), U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901.

Instructions: All comments will be included in the public docket without change and may be made available online at http://www.regulations.gov,, including any personal information provided, unless the comment includes Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Information that you consider CBI or otherwise protected should be clearly identified as such and should not be submitted through http://www.regulations.gov or e-mail. The http://www.regulations.gov portal is an “anonymous access” system, and EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send e-mail directly to EPA, your e-mail address will be automatically captured and included as part of the public comment. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

Docket: The index to the docket for this action is available electronically at http://www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT:

Ginger Vagenas, Plannning Office (AIR-2), U.S. Environmental Protection Agency, Region IX, [phone], [e-mail].

SUPPLEMENTARY INFORMATION:

Throughout this document, “we,” “us” and “our” refer to EPA.

Table of Contents

I. Background

II. Error Correction

III. Public Comment and Final Action

IV. Statutory and Executive Order Reviews

I. Background

Under the Clean Air Act (CAA or “Act”), each state is required to have a state implementation plan (SIP) which contains the control measures and strategies which will be used to attain and maintain the national ambient air quality standards (NAAQS). The SIP is extensive, containing such elements as emission inventories, monitoring networks, attainment demonstrations, and enforcement mechanisms. The control measures and strategies must be formally adopted by each state after the public has had an opportunity to comment on them. They are then submitted to EPA as SIP revisions on which EPA must formally act.

The SIP is a living document which can be revised by the state as necessary to address the unique air pollution problems in the state. Therefore, EPA from time to time must take action on SIP revisions which may contain new and/or revised regulations as being part of the SIP. On May 31, 1972 (37 FR 10842), EPA approved, with certain exceptions, the initial SIPs for 50 states, four territories and the District of Columbia. Since 1972, each state and territory has submitted numerous SIP revisions, either on their own initiative, or because they were required to as a result of various amendments to the CAA. EPA codifies its approvals and disapprovals of SIPs and SIP revisions in 40 CFR part 52 (“Approval and promulgation of implementation plans”).

The Hawaii SIP is identified in subpart M (“Hawaii”) of part 52. As with other State SIPs, EPA has taken a number of actions since 1972 with respect to the Hawaii SIP. In 1997, under CAA section 110(k)(6), we deleted certain variance-related provisions from the Hawaii SIP that we determined had been erroneously approved by us in the past. See 62 FR 34641 (June 27, 1997). In so doing, we mistakenly identified the variance-related provision erroneously approved on May 31, 1972 as “Chapter 43, Section 7.” See 62 FR 34641, at 34648. The variance-related provision is found in section 20 of chapter 43 (Air Pollution Control Regulations) rather than section 7. In addition, we inadvertently neglected to remove various other variance-related rules and statutory provisions from the Hawaii SIP, including Air Pollution Control Law, Hawaii Revised Statutes, chapter 322, part V, section 322-68, approved on May 31, 1972 (37 FR 10842); S.B. No. 1382-72, Act 100, section 7, approved on November 8, 1973 (38 FR 30876); chapter 43, section 20, approved on May 14, 1973 (38 FR 12711); and Hawaii Statute on Environmental Quality, Hawaii Revised Statutes, chapter 342, section 342-7 (48 FR 37402), approved on August 18, 1983 (48 FR 37402).

In 2005, we revised the format of subpart M (“Hawaii”) in 40 CFR part 52 for materials submitted by the State of Hawaii that are incorporated by reference into the Hawaii SIP. See 70 FR 44852 (August 4, 2005). In so doing, we mistakenly identified the original plan as “Implementation Plan for Compliance With the Ambient Air Quality Standards for the State of Hawaii.” Actually, the title of the original plan is “State of Hawaii Air Pollution Control Implementation Plan.” Also, in our 2005 final rule, we listed all of the rules that we believed to be federally enforceable but neglected to list certain rules that had been approved in the early 1970s and that have never been withdrawn or replaced. These include the following sections of chapter 43, Air Pollution Control Regulations: section 22 (“Hearings and Appeals”) and section 23 (“Application”). These rules were submitted by the State of Hawaii on November 21, 1972 and January 28, 1972, respectively, and were approved by EPA on May 14, 1973 (38 FR 12711) and May 31, 1972 (37 FR 10842), respectively.

II. Error Correction

Section 110(k)(6) of the Clean Air Act, as amended in 1990, provides, “Whenever the Administrator determines that the Administrator's action approving, disapproving, or promulgating any plan or plan revision (or part thereof), area designation, redesignation, classification or reclassification was in error, the Administrator may in the same manner as the approval, disapproval, or promulgation revise such action as appropriate without requiring any further submission from the State. Such determination and the basis thereof shall be provided to the State and the public.”

We interpret this provision to authorize the Agency to make corrections to a promulgated regulation when it is shown to our satisfaction that (1) we clearly erred in failing to consider or in inappropriately considering information made available to EPA at the time of the promulgation, or the information made available at the time of promulgation is subsequently demonstrated to have been clearly inadequate, and (2) other information persuasively supports a change in the regulation. See 57 FR 56762, at 56763 (November 30, 1992).

In this instance, we find clear errors in our 1997 final rule removing certain variance-related provisions from the Hawaii SIP. The first error involved identification of the wrong section number, and the second error involved the failure to list the other variance-related provisions in the Hawaii SIP. As discussed in our June 27, 1997 final rule (see at 62 FR 34641, at 34642), variance provisions were rendered without legal effect by amendments to the CAA enacted by Congress in 1977 and the presence of these provisions in the SIPs is potentially confusing, and thus, harmful to the regulated community, the states and EPA. For a more detailed discussion of our rationale for removing variance provisions from SIPs, see 61 FR 38664, at 38665 (July 25, 1996). To correct these errors, we are correcting the section number (for the variance provision in chapter 43 as approved in May 1972) and deleting the additional variance-related provisions approved on May 31, 1972, May 14, 1973, November 8, 1973, and August 18, 1983.

Second, we find clear errors in our 2005 final rule re-formatting our approvals of submittals of the Hawaii SIP and SIP revisions. We erred first by incorrectly identifying the title of the original Hawaii plan and then by failing to list two additional rules approved by EPA as part of the Hawaii SIP that were never withdrawn or replaced. To correct these errors, we are correcting the title of the original Hawaii SIP in 40 CFR 52.622(a) and adding the entries for the two additional rules into the table of EPA-approved regulations in 40 CFR 52.620(c).

III. Public Comment and Final Action

As authorized in section 110(k)(6) of the Act, and for the reasons set forth above, EPA is correcting errors in certain final rules approving or compiling the Hawaii state implementation plan. Specifically, we are correcting the section number (for the variance provision in chapter 43 as approved in May 1972) and deleting the additional variance-related provisions approved on May 31, 1972, May 14, 1973, November 8, 1973, and August 18, 1983. We are also revising the title of the original Hawaii SIP in 40 CFR 52.622(a) and adding the entries for the two additional rules (chapter 43, sections 22 and 23) as approved on May 14, 1973 and May 31, 1972, respectively, into the table of EPA-approved regulations in 40 CFR 52.620(c).

We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this Federal Register, we are simultaneously proposing approval of the same action. If we receive adverse comments by April 15, 2009, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on May 15, 2009.

IV. Statutory and Executive Order Reviews

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely corrects previous actions approving state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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 action 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 May 15, 2009. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action 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
• Intergovernmental relations
• Reporting and recordkeeping requirements

Dated: February 25, 2009.

Jane Diamond,

Acting Regional Administrator, Region IX.

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 M—Hawaii

2. In § 52.620, the table in paragraph (c) is amended by revising the table heading and adding the entries to the beginning of the table for “Department of Health, Public Health Regulations, chapter 43, Air Pollution Control Regulations,” sections 22 and 23 to read as follows:

§ 52.620

Identification of plan.

* * * * *

(c) * * *

EPA Approved State of Hawaii Regulations

State citation	Title/subject	Effective date	EPA approval date	Explanation
Department of Health, Public Health Regulations, chapter 43, Air Pollution Control Regulations:
Section 22	Hearings and Appeals	12/26/1972	05/14/1973	38 FR 12711
Section 23	Application	03/28/1972	05/31/1972	37 FR 10842
*         *         *         *         *         *         *

* * * * *

3. Section 52.622 is amended as follows:

a. By revising paragraph (a).

b. By revising paragraph (b)(1).

c. By adding paragraph (c)(4)(i) and adding and reserving paragraph (c)(4)(ii).

d. By adding paragraph (c)(5)(i), and adding and reserving paragraph (c)(5)(ii).

e. By adding paragraph (c)(15)(i) and adding and reserving paragraph (c)(15)(ii). The amendments are as follows:

§ 52.622

Original identification of plan.

(a) This section identified the original “State of Hawaii Air Pollution Control Implementation Plan” and all revisions submitted by the State of Hawaii that were federally approved prior to June 1, 2005.

(b) * * *

(1) Previously approved on May 31, 1972 in paragraph (b) of this section and now deleted from the SIP without replacement Air Pollution Control Law, Hawaii Revised Statutes, chapter 322, part V, section 322-68 and Public Health Regulations, chapter 43, section 20.

(c) * * *

(4) * * *

(i) Previously approved on November 8, 1973 in paragraph (c)(4) of this section and now deleted from the SIP without replacement S.B. No. 1382-72, Act 100, section 7.

(ii) [Reserved]

(5) * * *

(i) Previously approved on May 14, 1973 in paragraph (c)(5) of this section and now deleted from the SIP without replacement chapter 43, section 20.

(ii) [Reserved]

* * * * *

(15) * * *

(i) Previously approved on August 18, 1983 in paragraph (c)(15) of this section and now deleted from the SIP without replacement Hawaii Statute on Environmental Quality, Hawaii Revised Statutes, chapter 342, section 342-7.

(ii) [Reserved]

* * * * *