ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2008-0884; FRL-____-_    ]

 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 [Insert date 60 days from the date of
publication in the Federal Register] without further notice, unless EPA
receives adverse comments by [Insert date 30 days from the date of
publication in the Federal Register]. 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 [DOCKET NUMBER],
by one of the following methods:

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

E-mail:  HYPERLINK "mailto:vagenas.ginger@epa.gov" 
vagenas.ginger@epa.gov .

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   HYPERLINK
"http://www.regulations.gov"  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   HYPERLINK "http://www.regulations.gov" 
www.regulations.gov  or e-mail. The   HYPERLINK
"http://www.regulations.gov"  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   HYPERLINK "http://www.regulations.gov" 
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, (415)
972-3964,   HYPERLINK "mailto:vagenas.ginger@epa.gov" 
vagenas.ginger@epa.gov .

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 [Insert
date 30 days from date of publication in the Federal Register], 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 [Insert date 60 days from date of
publication in the Federal Register].

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 (Public Law 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 [FEDERAL REGISTER OFFICE: insert
date 60 days from date of publication of this document in the Federal
Register]. 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. 

_2/25/2009_____________		______________________

Dated:					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 title 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

Section 23	

Hearings and Appeals

Application	

12/26/1972

03/28/1972	

05/14/1973

05/31/1972	

38 FR 12711

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). 

(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]

*		*		*		*		*

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