03-14571. Approval and Promulgation of Air Quality Implementation Plans; Vermont Update to Materials Incorporated by Reference

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule; notice of administrative change.

SUMMARY:

EPA is updating the materials submitted by Vermont that are incorporated by reference (IBR) into the Vermont State Implementation Plan (SIP). The regulations affected by this update have been previously submitted by the state agency and approved by EPA. This update affects the SIP materials that are available for public inspection at the Office of the Federal Register (OFR), Office of Air and Radiation Docket and Information Center, and the Regional Office.

EFFECTIVE DATE:

This action is effective June 11, 2003.

ADDRESSES:

SIP materials which are incorporated by reference into 40 CFR part 52 are available for inspection at the following locations: Environmental Protection Agency, New England Regional Office (Region 1), One Congress Street, Suite 1100, Boston, MA 02114-2023; Office of Air and Radiation Docket and Information Center, Room B-108, 1301 Constitution Avenue, (Mail Code 6102T), NW., Washington, DC 20460, and Office of the Federal Register, 800 North Capitol Street, NW., Suite 700, Washington, DC 20002.

FOR FURTHER INFORMATION CONTACT:

Mr. Donald Cooke, Environmental Scientist, at the above EPA New England Region address or at [phone].

SUPPLEMENTARY INFORMATION:

The State Implementation Plan (SIP) is a living document which the State can revise as necessary to address the unique air pollution problems in the state. Therefore, EPA from time to time must take action on SIP revisions containing new and/or revised regulations as being part of the SIP. On May 22, 1997, (62 FR 27968) EPA revised the procedures for incorporating by reference (IBR) Federally-approved SIPs, as a result of consultations between EPA and the Office of Federal Register (OFR). The description of the revised SIP document, IBR procedures and “Identification of plan” format are discussed in further detail in the May 22, 1997, Federal Register document. On September 8, 2000, EPA published a document in the Federal Register (65 FR 54413) beginning the new IBR procedure for Vermont. In this document EPA is doing the update to the material being IBRed.

EPA has determined that today's rule falls under the “good cause” exemption in section 553(b)(3)(B) of the Administrative Procedures Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation and section 553(d)(3) which allows an agency to make a rule effective immediately (thereby avoiding the 30-day delayed effective date otherwise provided for in the APA). Today's rule simply codifies provisions which are already in effect as a matter of law in Federal and approved State programs. Under section 553 of the APA, an agency may find good cause where procedures are “impractical, unnecessary, or contrary to the public interest.” Public comment is “unnecessary” and “contrary to the public interest” since the codification only reflects existing law. Immediate notice in the CFR benefits the public by updating citations.

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 (Pub. L. 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, on the relationship between the Federal government and Indian tribes, or on 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, 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 (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. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

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. section 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. section 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 August 11, 2003. 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
• Incorporation by reference
• Intergovernmental relations
• Lead
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides
• Volatile organic compounds

Dated: April 24, 2003.

Robert W. Varney,

Regional Administrator, EPA New England.

Chapter I, title 40, Code of Federal Regulations, is amended as follows:

PART 52—[AMENDED]

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

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

Subpart UU—Vermont

2. In § 52.2370 paragraphs (b), (c), (d) and (e) are revised to read as follows:

§ 52.2370

Identification of plan.

* * * * *

(b) Incorporation by reference. (1) Material listed in paragraph (c) and (d) of this section with an EPA approval date prior to April 23, 2003, was approved for incorporation by reference by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Material is incorporated as it exists on the date of the approval, and notice of any change in the material will be published in the Federal Register. Entries in paragraphs (c) and (d) of this section with EPA approval dates after April 23, 2003, will be incorporated by reference in the next update to the SIP compilation.

(2) EPA Region 1 certifies that the rules/regulations provided by EPA in the SIP compilation at the addresses in paragraph (b)(3) of this section are an exact duplicate of the officially promulgated state rules/regulations which have been approved as part of the State Implementation Plan as of April 23, 2003.

(3) Copies of the materials incorporated by reference may be inspected at the New England Regional Office of EPA at One Congress Street, Suite 1100, Boston, MA 02114-2023; the Office of the Federal Register, 800 North Capitol Street, NW., Suite 700, Washington, DC.; or at the EPA, Office of Air and Radiation Docket and Information Center, Room B-108, 1301 Constitution Avenue, (Mail Code 6102T) NW., Washington, DC 20460.

(c) EPA approved regulations.

EPA Approved Vermont Regulations

State citation	Title/subject	State effective date	EPA approval date	Explanations
Chapter 5 Air Pollution Control
Subchapter I. Definitions
Section 5-101	Definitions	07/29/93	04/22/98, 63 FR 19828	Definitions IBR'd 101 into the Vermont SIP are numbered consecutively by EPA, and do not necessarily correspond to the State's assigned definition number in the Vermont State Regulation, which are re-numbered whenever definitions are added or deleted from the State Regulation.
Subchapter II. Prohibitions
Section 5-201	Open burning prohibited	07/22/98	04/22/98, 63 FR 19828
Section 5-202	Permissible open burning	01/25/78	12/21/78, 43 FR 59496
Section 5-203	Procedures for local authorities to burn natural wood	01/25/78	12/21/78, 43 FR 59496
Section 5-211	Prohibition of visible air contaminants	08/12/78	04/16/82, 47 FR 16331	Except Section 5-211(3)
Section 5-221	Prohibition of potentially polluting materials in fuel	01/25/78	12/21/78, 43 FR 59496	Except Section 5-221 (1)(c)(i) and Section 5-221(1)(c)(ii).
Section 5-231	Prohibition of particular matter	11/13/81	02/26/85, 50 FR 7767
Section 5-241	Prohibition of nuisance and odor	01/25/78	12/21/78, 43 FR 59496
Section 5-251	Control of nitrogen oxides emissions	01/04/95	04/09/97, 62 FR 17084	Requires RACT for major stationary sources of NOX.
Section 5-252	Control of Sulfur dioxide emissions	11/04/79	02/19/80, 45 FR 10775
Section 5-253.1	Petroleum liquid storage in fixed roof Tanks	10/29/92	04/22/98, 63 FR 19829
Section 5-253.2	Bulk gasoline terminals	10/29/92	04/22/98, 63 FR 19829
Section 5-253.3	Bulk gasoline plants	10/29/92	04/22/98, 63 FR 19829
Section 5-253.4	Gasoline tank trucks	10/29/92	04/22/98, 63 FR 19829
Section 5-253.5	Stage I vapor recovery controls at gasoline dispensing facilities	10/29/92	04/22/98, 63 FR 19829
Section 5-253.10	Paper coating	10/29/92	04/22/98, 63 FR 19829
Section 5-253.12	Coating of flat wood paneling	10/29/92	04/22/98, 63 FR 19829
Section 5-253.13	Coating of miscellaneous metal parts	07/29/93	04/22/98, 63 FR 19829
Section 5-253.14	Solvent metal cleaning	07/29/93	04/22/98, 63 FR 19829
Section 5-253.15	Cutback and emulsified asphalt	08/02/94	04/22/98, 63 FR 19829
Section 5-253.20	Other sources that emit volatile organic compounds	08/03/93	04/09/97, 62 FR 17084
Section 5-261	Control of hazardous air contaminants	11/03/81	02/10/82, 47 FR 6014
Subchapter III. Ambient Air Quality Standards.
Section 5-301	Scope	12/15/90	03/05/91, 56 FR 9177
Section 5-302	Sulfur dioxide primary	03/24/79	02/19/80, 45 FR 10775
Section 5-303	Sulfur dioxide secondary	03/24/79	02/19/80, 45 FR 10775
Section 5-306	PM10 primary and secondary standards	11/01/90	08/01/97, 62 FR 41282	Removal of the TSP standard (Section 5-304 and 5-305) and establishment of PM10 standard (Section 5-306).
Section 5-307	Carbon monoxide primary and secondary	03/24/79	02/19/80, 45 FR 10775	Formerly Section 5-306, renumbered to 5-307 when new Section 5-306 for PM10 was created.
Section 5-308	Ozone primary and secondary	03/24/79	02/19/80, 45 FR 10775	Formerly Section 5-307, renumbered to 5-308 when new Section 5-306 for PM10 was created.
Section 5-309	Lead primary and secondary	11/03/81	02/10/82, 47 FR 6014	Formerly Section 5-308, renumbered to 5-309 when new Section 5-306 for PM10 was created.
Section 5-310	Nitrogen dioxide primary and secondary	12/15/90	03/05/91, 56 FR 9177	Formerly Section 5-309, renumbered to 5-310 when new Section 5-306 for PM10 was created.
Subchapter IV. Operations and Procedures
Section 5-401	Classification of air contaminant sources	03/24/79	02/19/80, 45 FR 10775
Section 5-402	Written reports when requested	03/24/79	02/19/80, 45 FR 10775
Section 5-403	Circumvention	12/10/72	05/31/72, 37 FR 10899
Section 5-404	Methods for sampling and testing of sources	03/24/78	02/19/80, 45 FR 10775
Section 5-405	Required air monitoring	03/24/79	02/19/80, 45 FR 10775
Section 5-406	Required air modeling	03/24/79	02/19/80, 45 FR 10775
Subchapter V. Review of New Air Contaminant Sources
Section 5-501	Review of construction or modification of air contaminant sources.	09/17/86	07/17/87, 52 FR 26982
Section 5-502	Major stationary sources and major modifications	07/14/95	08/04/98, 62 FR 41870
Subchapter VII. Motor Vehicle Emissions
Section 5-701	Removal of control devices	03/24/79	02/19/80, 45 FR 10775
Section 5-702	Excessive smoke emissions from motor vehicles	03/24/79	02/19/80, 45 FR 10775
Section 5-801	Effective date	03/24/79	01/30/80, 45 FR 6781
Tables
Table 1	Table 1 Process weight standards	01/25/78	12/21/78, 43 FR 59496
Table 2	Table 2 PSD increments	12/15/90	03/05/91, 56 FR 9177
Table 3	Table 3 Levels of significant impact for non-attainment areas.	11/03/81	02/10/82, 47 FR 6014
Subchapter VIII. Registration of Air Contaminant Sources
Section 5-801	Definitions	04/20/88	01/10/95, 60 FR 2527
Section 5-802	Requirement for registration	04/20/88	01/10/95, 60 FR 2527
Section 5-803	Registration procedure	04/20/88	01/10/95, 60 FR 2527
Section 5-804	False or misleading information	04/20/88	01/10/95, 60 FR 2527
Section 5-805	Commencement or recommencement of operation	04/20/88	01/10/95, 60 FR 2527
Section 5-806	Transfer of Operation	04/20/88	01/10/95, 60 FR 2527

(d) EPA-approved State Source specific requirements.

EPA-Approved Vermont Source Specific Requirements

Name of Source	Permit No.	State effective date	EPA approval date	Explanations
Simpson Paper Company, Centennial Mill in Gilman, Vermont	Environmental Protection Regulations, Chapter 5, Air Pollution Control, Subchapter II. Section 5-251(2)	01/04/95	04/09/97, 45 FR 17087	Administrative orders for Simpson Paper Company, in Gilman, Vermont, adopted and effective on January 4, 1995.
U.S. Samaica Corporation, in Rutland, VT	Environmental Protection Regulations, Chapter 5, Air Pollution Control, Subchapter II. Section 5-253.20	01/04/95	04/09/97, 45 FR 17087	Administrative orders for U.S. Samaica Corporation, in Rutland, Vermont, adopted and effective on January 4, 1995.

(e) Nonregulatory.

Vermont Non Regulatory

Name of Non regulatory SIP provision	Applicable geographic or nonattainment area	State submittal date/effective date	EPA approved date	Explanations
Notice of public hearing	Statewide	Submitted 02/03/72	06/15/72, 37 FR 11911	(c)(1) Vermont Agency of Environmental Conservation.
Miscellaneous non-regulatory revisions to the plan		Submitted 02/25/72	5/31/72, 37 FR 10899	(c)(2) Vermont Agency of Environmental Conservation.
Miscellaneous non-regulatory revisions to the plan		Submitted 03/03/75	01/21/76, 41 FR 3085	(c)(4) Vermont Agency of Environmental Conservation. Deletion of Winooski sampling site for particulates and sulfur dioxide.
Plans to meet various requirements of the Clean Air Act, including Part C		Submitted 03/21/79, and 11/21/79	01/30/80, 45 FR 6781	(c)(9) See Plans to attain below.
Attainment Plans to meet the requirements of Part D and the Clean Air Act, as amended in 1977		Submitted 03/21/79, 11/21/79, 11/27,79, and 12/19/79	02/19/80 45 FR 10775	(c)(10) Plans to attain. State of Vermont air quality implementation plan (March 1979). The secondary TSP standard for Barre City and a portion of the Champlain Valley Air Management Area, the carbon monoxide standard in the Champlain Valley Air Management Area and the ozone standard in Chittenden, Addison, and Windsor Counties. A program was also submitted for the review of construction and operation of new and modified major stationary sources of pollution in non-attainment areas. Certain miscellaneous provisions were also included.
A plan to provide for public, local and state involvement in federally funded air pollution control activities		Submitted 03/28/80	09/09/80, 45 FR 59314	(c)(11) A plan to provide for public, local and state involvement in federally funded air pollution control activities.
A plan to attain and maintain the National Ambient Air Quality Standard for lead		Submitted 06/24/80, and 11/07/80	03/18/81, 46 FR 17192	(c)(12) A plan to attain and maintain the National Ambient Air Quality Standard for lead. A letter further explaining the state procedures for review of new major sources of lead emissions.
A revision to the air quality monitoring network		Submitted 03/21/79	10/08/80, 45 FR 66789, corrected by 03/16/81 46 FR 15897	(c)(13) meets the requirements of 40 CFR part 58.
Narrative submittal “Implementation Plan for the Protection of Visibility in the State of Vermont” and “Appendices”		Submitted 04/15/86	07/17/87, 52 FR 26973	(c)(19) Describing procedures, notifications, and technical evaluations to fulfill the visibility protection requirements of 40 CFR part 51, subpart P.
State Implementation Plan narrative		Submitted 12/07/90, and 01/10/91	03/05/91, 56 FR 9175	(c)(20) State of Vermont Air Quality Implementation Plan dated November, 1990.
State Implementation Plan narrative		Submitted 08/09/93	01/10/95, 60 FR 2524	(c)(21) State of Vermont Air Quality Implementation Plan dated February, 1993. To meet the emission statement requirement of the CAAA of 1990.
Revisions to the State Implementation Plan		Submitted 02/03/93, 08/09/93, and 08/10/94	04/22/98, 63 FR 19828	(c)(25) State of Vermont: Air Quality Implementation Plan dated August 1993.
Revisions to the State Implementation Plan		Submitted 08/03/98	07/10/00, 65 FR 42290	(c)(26) letter from VT Air Pollution Control Division dated July 28, 1998 stating a negative declaration for the aerospace coating operations CTG category.