Partial Disapproval of State Implementation Plan; Arizona; Regional Haze Requirements, 48326-48330 [2013-18881]

Download as PDF 48326 Federal Register / Vol. 78, No. 153 / Thursday, August 8, 2013 / Rules and Regulations Maintenance Area submitted by the Secretary of the Pennsylvania Department of Environmental Protection: Applicable geographic area Lancaster 1997 8-Hour Ozone Maintenance Area ..................................................................... Lancaster 1997 8-Hour Ozone Maintenance Area ..................................................................... 94105. Thomas Webb can be reached at telephone number (415) 947–4139 and via electronic mail at webb.thomas@epa.gov. [FR Doc. 2013–18878 Filed 8–7–13; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 SUPPLEMENTARY INFORMATION: Throughout this document, ‘‘we,’’ ‘‘us’’ and ‘‘our’’ refer to EPA. [EPA–R09–OAR–2012–0913; FRL–9843–7] Table of Contents Partial Disapproval of State Implementation Plan; Arizona; Regional Haze Requirements I. Overview of Proposed Action II. Public Comments and EPA Responses III. Summary of Final Action IV. Statutory and Executive Order Reviews Environmental Protection Agency (EPA). ACTION: Final rule. I. Overview of Proposed Action AGENCY: EPA is finalizing a partial disapproval of the Arizona State Implementation Plan (SIP) to implement the regional haze program for the first planning period through 2018. Regional haze is caused by emissions of air pollutants from numerous sources located over a broad geographic area. The Clean Air Act (‘‘CAA’’ or the ‘‘Act’’) and EPA’s regulations require states to adopt and submit to EPA SIPs that assure reasonable progress toward the national goal of achieving natural visibility conditions in 156 national parks and wilderness areas designated as Class I areas. DATES: Effective Date: This rule is effective on September 9, 2013. ADDRESSES: EPA has established docket number EPA–R09–OAR–2012–0913 for this action. Generally, documents in the docket for this action are available electronically at 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 at www.regulations.gov, some information may be publicly available only at the hard copy location (e.g., copyrighted material, large maps), and some may not be publicly available in either location (e.g., confidential business information). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed directly below. FOR FURTHER INFORMATION CONTACT: Thomas Webb, U.S. EPA, Region 9, Planning Office, Air Division, Air–2, 75 Hawthorne Street, San Francisco, CA mstockstill on DSK4VPTVN1PROD with RULES SUMMARY: VerDate Mar<15>2010 16:04 Aug 07, 2013 Jkt 229001 Tons per day NOX Year We proposed on February 5, 2013, to disapprove Arizona’s SIP to implement the regional haze program under 40 CFR 51.309.1 Specifically, we proposed to disapprove in part a December 24, 2008, submittal by the Arizona Department of Environmental Quality (ADEQ) in which the State resubmitted materials previously submitted on December 23, 2003, and December 30, 2004 (collectively ‘‘Arizona’s 309 Regional Haze SIP’’).2 These SIP submittals were intended to address the regional haze requirements of the CAA and EPA’s implementing regulations at 40 CFR 51.309 for four of Arizona’s mandatory Class I areas. Our proposed rule includes additional information about these requirements and Arizona’s SIP submittals. II. Public Comments and EPA Responses During the 30-day comment period on our proposal, we received comments from: • Eric Massey, Director Air Quality, ADEQ; and • David Nimkin, Gloria Smith, Barbara Warren, Donna House and Dan Randolph, on behalf of National Parks Conservation Association, Sierra Club, Physicians for Social Responsibility (Arizona Chapter), Dine’ Citizens Against Ruining Our Environment, and San Juan Citizens Alliance (collectively, the ‘‘Conservation Organizations’’). 1 78 FR 8083. explained in our proposal, this disapproval is ‘‘partial’’ rather than ‘‘full’’ because EPA previously approved certain burning and smoke management rules that were part of the 2008 SIP submittal. 2009 2018 20.57 10.14 Tons per day VOCs 35.18 14.29 We carefully considered these comments, which are located in the docket for this action. In the following sections, we provide summaries of and our responses to these comments. Comment 1: ADEQ commented that its December 24, 2008, ‘‘re-submittal’’ letter was not a revision to Arizona’s 309 Regional Haze SIP because it did not include new information and was not subject to a formal public comment period. ADEQ further asserted that its 2003 and 2004 SIP submittals were deemed complete by operation of law six months after submission, pursuant to CAA section 110(k)(1)(B), and that EPA should have acted on these submittals within 18 months pursuant to CAA section 110(k)(2). Response 1: As an initial matter, ADEQ’s comment appears to have no relevance to the substance of EPA’s proposed action. Regardless of whether ADEQ’s December 24, 2008, resubmittal letter was a SIP revision or merely a request that EPA act upon ADEQ’s 2003 and 2004 SIP submittals, the fact remains that Arizona’s 309 Regional Haze SIP does not satisfy the requirements of 40 CFR 51.309(d)(4) and is therefore not approvable. We also note that ADEQ’s comment appears to contradict the statements made in the December 24, 2008, re-submittal letter itself.3 The re-submittal letter states that: Plan submittal is consistent with the provisions of Arizona Revised Statutes (ARS) Title 49, §§ 49– 104, 49– 06, 49–404,49–406, 49–414, and 49–414.0 1 and the Code of Federal Regulations (CFR) Title 40, §§ 51.102–51.104. The plan also complies with the public process requirements in Section 110(a)(l) and (a)(2) of the Clean Air Act; 40 CFR 51.102 regarding preparation, notice, and submission of state implementation plans; and Arizona Revised Statutes 49–425 regarding notice and [public] review of rules.4 Consistent with these statements regarding public process, EPA viewed the re-submittal letter as a SIP revision. However, if Arizona did not intend for the letter to be a SIP revision, then we construe it as a withdrawal of those 2 As PO 00000 Frm 00044 Fmt 4700 Sfmt 4700 3 Letter from Stephen A. Owens, ADEQ, to Wayne Nastri, EPA, December 24, 2008 (‘‘re-submittal letter’’). 4 Id. at 1. E:\FR\FM\08AUR1.SGM 08AUR1 Federal Register / Vol. 78, No. 153 / Thursday, August 8, 2013 / Rules and Regulations portions of the State’s 2003 and 2004 SIP submittals addressing the stationary source requirements of 40 CFR 51.309(d)(4), as well as an acknowledgment of the State’s failure to submit provisions to address eight of the State’s Class I areas under 40 CFR 51.309(g). As the letter explains: mstockstill on DSK4VPTVN1PROD with RULES This plan submittal does not include provisions under § 309(d)(4) or § 309(g). Due to the new requirements for stationary source control strategies based on the decision rendered in Center for Energy and Economic Development (CEED) v. EPA, 398 F.3d 653 (DC Cir. 2005), Arizona has not been able to complete revisions to § 309(d)(4) or complete § 309(g) by the deadline of December 17, 2007.5 Thus, the re-submittal letter clearly acknowledged that Arizona’s 309 Regional Haze SIP lacked any provisions to address the critical requirements of 40 CFR 51.309(d)(4) and 51.309(g). The absence of these provisions cannot be remedied by the fact that Arizona’s 2003 and 2004 SIP submittals were deemed ‘‘complete’’ by operation of law. Section 110(k)(1)(A) of the CAA requires EPA to ‘‘promulgate minimum criteria that any plan submission must meet before the Administrator is required to act on such submission under this subsection.’’ 6 Pursuant to this requirement, EPA has promulgated ‘‘completeness criteria,’’ consisting of administrative materials and technical support elements that must be included with all SIP submittals.7 These criteria do not include the substantive provisions that a given SIP must include to comply with the minimum requirements of the CAA. Rather, such substantive requirements are set out in the CAA itself and in EPA’s implementing regulations. Thus, the fact that the 2003 and 2004 SIP submittals were deemed ‘‘complete’’ with respect to the minimum criteria required under CAA section 110(k)(1)(A) does not mean that the submittals were complete in the sense that they contained the provisions necessary to satisfy the requirements of 40 CFR 51.309. On the contrary, ADEQ acknowledged in its re-submittal letter that Arizona’s 309 Regional Haze SIP ‘‘does not include provisions under § 309(d)(4) or § 309(g).’’ 8 Finally, ADEQ’s assertion that EPA should have acted on the State’s 2003 and 2004 SIP submittals within 18 months of December 30, 2004, is not persuasive. The D.C. Circuit’s decision in Center for Energy & Economic Development v. EPA, 398 F.3d 653 (D.C. Cir. 2005) (‘‘CEED’’), which invalidated 40 CFR 51.309’s stationary source requirements, was issued on February 18, 2005. In response to this decision, EPA proposed revisions to 40 CFR 51.309 on August 1, 2005.9 Among other things, EPA proposed to allow states to submit or resubmit 309 SIPs at a later date in order to provide time for States to revisit the SO2 milestones and backstop emission trading program. EPA further explained that: With respect to the other strategies contained in § 51.309, although these other provisions of § 51.309 were not affected by the decision in CEED v. EPA and may remain effective as a matter of State law in each State, the EPA cannot approve implementation plans under § 51.309 as meeting reasonable progress until the plans contain valid provisions for addressing stationary sources.10 Thus, EPA clearly indicated that we could not approve previously submitted 309 SIPs until they were resubmitted with valid provisions for addressing stationary sources. EPA ultimately set a deadline of December 17, 2007, for these re-submittals.11 Regardless of whether ADEQ’s December 24, 2008, resubmittal letter is characterized as a SIP revision or merely a prompt for EPA to act upon the State’s earlier 2003 and 2004 SIP submittals, the fact remains that Arizona, by its own admission, failed to submit provisions addressing the requirements of 40 CFR 51.309(d)(4) and 51.309(g). Finally, even if it were true that EPA should have acted on Arizona’s 2003 and 2004 SIP submittals within 18 months, it is irrelevant to the substance of the action EPA is taking in this final rule. EPA is addressing the approvability of Arizona’s 309 Regional Haze SIP now and partially disapproving it because the SIP does not satisfy the requirements of 40 CFR 51.309(d)(4). Comment 2: ADEQ commented that EPA had no authority to adopt a Federal Implementation Plan (FIP) in its December 5, 2012, final rule that established BART for three power plants in Arizona.12 ADEQ argued that EPA’s January 15, 2009, finding of failure to submit (‘‘Finding’’),13 which provided the basis for EPA’s FIP authority, was invalid because Arizona submitted 309 SIPs in 2003 and 2004, both of which were deemed complete by operation of law. Finally, ADEQ asserted that if EPA did have FIP authority, then it would FR 44154 (August 1, 2005). at 44165. 11 Id. at 44166. 12 77 FR 72512 (December 5, 2012). 13 74 FR 2392 (January 15, 2009). 48327 extend only to the requirements of 40 CFR 51.309(d)(4) and 51.309(g), not to the requirement for BART. Response 2: As an initial matter, this comment is not germane in any way to the present rulemaking, in which EPA is finalizing its partial disapproval of Arizona’s 309 Regional Haze SIP for failure to comply with the requirements of 40 CFR 51.309(d)(4). Rather, ADEQ’s comment appears to be a collateral challenge to EPA’s Finding and other rulemakings EPA has conducted involving regional haze and BART requirements in Arizona. We note that ADEQ’s objection to EPA’s Finding comes nearly three years after the statutory deadline for challenging that action has passed. Under the CAA, any party seeking judicial review of EPA’s Finding was required to file a petition for review within 60 days of publication of the Finding in the Federal Register, or by no later than March 16, 2009. No party, including Arizona, filed such a petition. Therefore, ADEQ’s claim that EPA’s Finding was invalid and that EPA did not have FIP authority to promulgate its December 5, 2012, final rule is time-barred. We also disagree with the substance of ADEQ’s comment. As ADEQ noted in its comment, EPA’s authority to issue a FIP arises from one of three triggering events: (1) A finding that a state has failed to make a required SIP submittal; (2) a finding that a SIP submittal does not satisfy the minimum criteria of CAA section 110(k)(1)(A); or (3) the disapproval, in whole or in part, of a SIP submittal.14 Contrary to ADEQ’s assertion, the fact that Arizona’s 2003 and 2004 SIP submittals were deemed ‘‘complete’’ by operation of law has no bearing on EPA’s Finding, which was premised on the fact that Arizona failed to submit SIP provisions to satisfy the requirements of 40 CFR 51.309(d)(4) and 51.309(g). The State’s 2003 and 2004 SIP submittals could not have addressed 40 CFR 51.309(d)(4) and 51.309(g) because the former requirement was modified in response to the D.C. Circuit’s 2005 decision in CEED, while the latter requirement did not even exist until EPA finalized our revisions to 40 CFR 51.309 in 2006.15 ADEQ acknowledged this fact in its December 24, 2008, resubmittal letter, which plainly stated that Arizona’s 309 Regional Haze SIP addresses neither 40 CFR 51.309(d)(4) nor 51.309(g).16 Additionally, we disagree with ADEQ’s contention that EPA’s FIP 9 70 5 Id. at 2. 6 42 U.S.C. 7410(k)(1)(A). 7 40 CFR part 51, Appendix V. 8 Re-submittal letter at 2. VerDate Mar<15>2010 16:04 Aug 07, 2013 10 Id. Jkt 229001 PO 00000 Frm 00045 Fmt 4700 Sfmt 4700 14 42 U.S.C. 7410(c)(1). FR 60633 (October 13, 2006) codified at 40 CFR 51.309. 16 Re-submittal letter at 2. 15 71 E:\FR\FM\08AUR1.SGM 08AUR1 48328 Federal Register / Vol. 78, No. 153 / Thursday, August 8, 2013 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES authority is somehow limited to the requirements of 40 CFR 51.309(d)(4) and 51.309(g). Section 309 is an alternative route to compliance with the regional haze rule that can only be implemented at the election of the state. The regional haze rule clearly explains that if a state chooses to fulfill its regional haze obligation under 40 CFR 51.309, but fails to submit the SIP provisions necessary to satisfy that obligation, then the state remains subject to the requirements of 40 CFR 51.308.17 Thus, when Arizona failed to submit SIP provisions addressing the requirements of 40 CFR 51.309(d)(4) and 51.309(g) by the December 17, 2007, deadline, Arizona remained subject to the general requirements of 40 CFR 51.308. In other words, the regulatory gap left by Arizona’s failure to submit a comprehensive 309 SIP was a duty to submit a 308 SIP. As a result, EPA’s Finding triggered a duty on behalf of EPA to issue a FIP that satisfied the requirements of 40 CFR 51.308, which include the requirement to establish BART for certain stationary sources. Finally, even if EPA’s FIP authority were somehow limited to the requirements of 40 CFR 51.309(d)(4) and 51.309(g), those provisions are far more expansive than ADEQ suggests. Section 51.309(d)(4) governs emissions of nitrogen oxides (NOX), particulate matter (PM), and sulfur dioxide (SO2) from stationary sources that cause or contribute to visibility impairment in the Class I areas on the Colorado Plateau. In particular, 40 CFR 51.309(d)(4)(i) requires the establishment of quantitative SO2 emission ‘‘milestones’’ that provide for emissions reductions, which ‘‘must be shown to provide for greater reasonable progress than would be achieved by application of BART pursuant to § 51.308(e)(2).’’ In addition, 40 CFR 51.309(d)(4)(vi) requires 309 SIPs to ‘‘contain any necessary long term strategies and BART requirements for stationary source PM and NOX emissions.’’ Finally, 40 CFR 51.309(g) includes the requirements for Arizona’s eight other Class I Areas and mandates, among other things, the establishment of reasonable progress goals and implementation of ‘‘any additional measures necessary to demonstrate 17 See 40 CFR 51.309(a) (‘‘Any Transport Region State electing not to submit an implementation plan under this section is subject to the requirements of § 51.308 in the same manner and to the same extent as any State not included within the Transport Region.’’). See also 64 FR 35754, July 1, 1999 (explaining that ‘‘the requirements of Section 51.309 . . . are not severable. States that wish to take advantage of the GCVTC’s efforts and EPA’s acceptance thereof are obligated to meet all of the requirements of section 51.309’’ (emphasis added)). VerDate Mar<15>2010 16:04 Aug 07, 2013 Jkt 229001 reasonable progress,’’ consistent with the requirements of 40 CFR 51.308(d)(1)–(4). In short, the requirements of 40 CFR 51.309(d)(4) and 51.309(g) encompass three critical elements of the regional haze program: Reasonable progress, long-term strategies, and BART (or ‘‘better-thanBART’’ alternatives) for NOX, PM, and SO2. Therefore, even if EPA’s FIP authority were somehow limited to fulfilling the requirements of 40 CFR 51.309(d)(4) and 51.309(g), that authority nevertheless extends to each of these critical elements, which include BART. Comment 3: ADEQ commented that EPA’s delay in acting on Arizona’s 309 Regional Haze SIP and the Agency’s promulgation of a FIP in a separate rulemaking did not give Arizona an adequate chance to revise its SIP to address the identified deficiencies. Response 3: Arizona has been on notice since August 1, 2005, when EPA proposed to amend 40 CFR 51.309 in response to the D.C. Circuit’s decision in CEED, of the deficiencies associated with the State’s 2003 and 2004 SIP submittals. There, EPA publicly stated that ‘‘EPA cannot approve implementation plans under section 51.309 as meeting reasonable progress until the plans contain valid provisions for addressing stationary sources.’’ 18 We also explained that ‘‘[s]tates opting for § 51.309 will be required to resubmit SIPs some time after [the invalidated portions of the 309 regulations] have been rectified . . . .’’ 19 EPA’s October 2006 final rule amending 40 CFR 51.309 also made clear that Arizona would have to revise and resubmit its 309 SIP to address 40 CFR 51.309(d)(4) and 51.309(g) by December 17, 2007.20 Arizona’s December 24, 2008, resubmittal letter, which stated ‘‘[t]his plan submittal does not include provisions under § 309(d)(4) or § 309(g),’’ 21 illustrates that Arizona was well aware of these requirements and the deficiencies in its 309 SIP. EPA found on January 15, 2009, that Arizona failed to re-submit the required provisions, again stating explicitly and on public record: Arizona, New Mexico, and Wyoming have opted to develop SIPs based on the recommendations of the Grand Canyon Visibility Transport Commission under 40 CFR 51.309. All three States have failed to submit the plan elements required by 40 CFR 51.309(g), the reasonable progress requirements for areas other than the 16 Class 18 70 FR 44165 (August 1, 2005). at 44165, 44166. 20 71 FR 60633 (October 13, 2006) codified at 40 CFR 51.309. 21 Re-submittal letter at 2. I areas covered by the Grand Canyon Visibility Transport Commission Report. Arizona and New Mexico have also failed to submit the plan element required by 40 CFR 51.309(d)(4), the alternate stationary source program for control of sulfur dioxide (SO2).22 Around the same time, EPA sent a letter to ADEQ notifying the State of the implications of its failure to submit the required SIP provisions, explaining that: Upon the effective date of the Federal Register notice, EPA must within two years either fully approve Arizona’s regional haze SIP or promulgate a Federal implementation plan (FIP) as required by CAA section 110(c). Please be aware that EPA needs about 12 months after receipt of a SIP to take final action. If we do not have sufficient time to review and approve a submitted SIP revision, the CAA requires that EPA impose a FIP. In order to avoid having EPA issue a FIP, we strongly recommend that you submit your SIP revision within a year of this finding, or sooner if possible.23 Thus, over the last eight years, EPA has repeatedly and publicly specified the deficiencies in Arizona’s 309 Regional Haze SIP and allowed ample time for Arizona to address these deficiencies. Comment 4: The Conservation Organizations expressed their support for EPA’s determination that Arizona’s 309 Regional Haze SIP fails to comply with the requirements of the regional haze rule. They provided a summary of the requirements of 40 CFR 51.309(d)(4) and a history of Arizona’s regional haze SIP submissions since EPA’s 2006 revisions to the section 309 requirements, concluding that ‘‘EPA’s final rule should disapprove Arizona’s 309 SIP for failure to comply with the requirements of Section 309(d)(4).’’ They further asserted that ‘‘EPA’s final rule should find that Arizona declined to participate in the alternative Section 309 [Western Backstop Trading Program] and instead has chosen to address SO2, NOX, and PM reductions through the BART process and longterm strategy requirements found in Section 308.’’ Response 4: We agree with this comment and acknowledge the Conservation Organizations’ support for this rulemaking. III. Summary of Final Action For the reasons set out in our proposed rule and in this final rulemaking, we are finalizing our partial disapproval of Arizona’s 309 Regional Haze SIP. In particular, we are disapproving all portions of Arizona’s 2003 and 2004 SIP submittals, except those portions that have already been 19 Id. PO 00000 Frm 00046 Fmt 4700 Sfmt 4700 22 74 FR 2393 (January 15, 2009). from Deborah Jordan, EPA, to Stephen Owens, ADEQ (January 14, 2009). 23 Letter E:\FR\FM\08AUR1.SGM 08AUR1 Federal Register / Vol. 78, No. 153 / Thursday, August 8, 2013 / Rules and Regulations approved and those portions pertaining to Reasonably Attributable Visibility Impairment (RAVI). Under section 179(a) of the CAA, EPA’s final disapproval of a submittal that addresses a requirement of CAA sections 171–193 or a revision that is required in response to a finding of substantial inadequacy as described in CAA section 110(k)(5) starts a sanctions clock. Arizona’s 309 Regional Haze SIP was not submitted to meet either of these requirements. Therefore, today’s action will not trigger mandatory sanctions under CAA section 179(a). In addition, CAA section 110(c)(1) requires EPA to promulgate a FIP at any time within two years after disapproving a SIP in whole or in part, unless EPA first approves a SIP correcting the deficiencies. As explained above, due to our previous Finding that Arizona failed to submit a complete regional haze SIP, EPA is already subject to a FIP duty under section 110(c)(1) with respect to the regional haze requirements for Arizona. Moreover, we are also subject to a set of court-ordered deadlines by which we must approve a SIP and/or promulgate a FIP that collectively meet the regional haze requirements for Arizona.24 Thus, we do not construe today’s partial disapproval of Arizona’s 309 Regional Haze SIP as creating any new FIP obligation. However, as noted in our proposed rulemaking, Arizona is appealing the district court’s entry and modification of the consent decree that set the deadlines for EPA action on regional haze plans for Arizona.25 If Arizona’s challenge ultimately results in any changes to the scope of EPA’s existing FIP duty with respect to regional haze in Arizona, then today’s action will trigger a two-year FIP clock for any additional regional haze requirements that are not subject to the previous FIP clock. IV. Statutory and Executive Order Reviews mstockstill on DSK4VPTVN1PROD with RULES A. Executive Order 12866, Regulatory Planning and Review This action is not a ‘‘significant regulatory action’’ under the terms of Executive Order (E.O.) 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the E.O. B. Paperwork Reduction Act This action does not impose an information collection burden under the provisions of the Paperwork Reduction 24 National Parks Conservation Association v. Jackson (D.D.C. Case 1:11–cv–01548). 25 National Parks Conservation Association v. EPA (D.C. Cir., USCA Case #12–5211). VerDate Mar<15>2010 16:04 Aug 07, 2013 Jkt 229001 Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b). C. Regulatory Reduction 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 rule will not have a significant impact on a substantial number of small entities because SIP approvals or SIP disapprovals under section 110 of the Clean Air Act do not create any new requirements but simply approve or disapprove requirements that the State is already imposing. Therefore, because the disapproval of SIP revisions 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 a 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). D. Unfunded Mandates Reform Act 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 costs to State, local, or tribal governments in the aggregate, or to the private sector, of $100 million or more. Under section 205, EPA must select the most costeffective 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 this action 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 disapproves certain SIP elements and imposes no new requirements. PO 00000 Frm 00047 Fmt 4700 Sfmt 4700 48329 Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action. E. Executive Order 13132, Federalism Executive Order 13132 requires EPA to develop an accountable process to ensure ‘‘meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.’’ ‘‘Policies that have federalism implications’’ is defined in the Executive Order to include regulations that 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.’’ Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation. This rule will 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, because it merely disapproves certain SIP revisions implementing and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule. F. Executive Order 13175, Coordination With Indian Tribal Governments Executive Order 13175, entitled ‘‘Consultation and Coordination with Indian Tribal Governments’’ (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure ‘‘meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.’’ This rule does not have tribal implications, as specified in Executive Order 13175. It will not have E:\FR\FM\08AUR1.SGM 08AUR1 48330 Federal Register / Vol. 78, No. 153 / Thursday, August 8, 2013 / Rules and Regulations substantial direct effects on tribal governments, 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. Thus, Executive Order 13175 does not apply to this rule. G. Executive Order 13045, Protection of Children From Environmental Health Risks and Safety Risks EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5–501 of the Executive Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045, because it disapproves certain SIP revisions. H. Executive Order 13211, Actions That Significantly Affect Energy Supply, Distribution, or Use This rule is not subject to Executive Order 13211, ‘‘Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use’’ (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. mstockstill on DSK4VPTVN1PROD with RULES I. National Technology Transfer and Advancement Act Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use ‘‘voluntary consensus standards’’ (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical. EPA believes that VCS are inapplicable to this action. Today’s action does not require the public to perform activities conducive to the use of VCS. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Population Executive Order (E.O.) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, VerDate Mar<15>2010 16:04 Aug 07, 2013 Jkt 229001 policies, and activities on minority populations and low-income populations in the United States. EPA lacks the discretionary authority to address environmental justice in this rulemaking. In reviewing SIP submissions, EPA’s role is to approve or disapprove state choices, based on the criteria of the Clean Air Act. Accordingly, this action merely disapproves certain SIP revisions under section 110 of the Clean Air Act and will not in-and-of itself create any new requirements. Accordingly, it 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. Dated: July 26, 2013. Jared Blumenfeld, Regional Administrator, EPA Region IX. K. Congressional Review Act § 52.145 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. 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). * L. 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 October 7, 2013. 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)). Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows: PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for Part 52 continues to read as follows: ■ Authority: 42 U.S.C. 7401 et seq. Subpart D—Arizona 2. Section 52.145 is amended by adding paragraph (h) to read as follows: ■ Visibility protection. * * * * (h) Disapproval. The following portions of the Arizona SIP are disapproved because they do not meet the applicable requirements of Clean Air Act sections 169A and 169B and the Regional Haze Rule at 40 CFR 51.309: (1) Regional Haze State Implementation Plan for the State of Arizona (‘‘Arizona 309 Regional Haze SIP’’) submitted by the Arizona Department of Environmental Quality on December 23, 2003, with the exception of Chapter 5 (Strategy to Address Reasonably Attributable Visibility Impairment (RAVI)) and Appendix A–5 (Attributable Impairment). (2) The Arizona Regional Haze State Implementation Plan Revision submitted by the Arizona Department of Environmental Quality on December 31, 2004, with the exception of the provisions already approved at 40 CFR 52.120(c)(131). (3) Letter from Stephen A. Owens, Director, Arizona Department of Environmental Quality, dated December 24, 2008 re: Submittal of Arizona Regional Haze State Implementation Plan. [FR Doc. 2013–18881 Filed 8–7–13; 8:45 am] BILLING CODE 6560–50–P List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Sulfur oxides, Visibility. PO 00000 Frm 00048 Fmt 4700 Sfmt 9990 E:\FR\FM\08AUR1.SGM 08AUR1

Agencies

[Federal Register Volume 78, Number 153 (Thursday, August 8, 2013)]
[Rules and Regulations]
[Pages 48326-48330]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-18881]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2012-0913; FRL-9843-7]


Partial Disapproval of State Implementation Plan; Arizona; 
Regional Haze Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing a partial disapproval of the Arizona State 
Implementation Plan (SIP) to implement the regional haze program for 
the first planning period through 2018. Regional haze is caused by 
emissions of air pollutants from numerous sources located over a broad 
geographic area. The Clean Air Act (``CAA'' or the ``Act'') and EPA's 
regulations require states to adopt and submit to EPA SIPs that assure 
reasonable progress toward the national goal of achieving natural 
visibility conditions in 156 national parks and wilderness areas 
designated as Class I areas.

DATES: Effective Date: This rule is effective on September 9, 2013.

ADDRESSES: EPA has established docket number EPA-R09-OAR-2012-0913 for 
this action. Generally, documents in the docket for this action are 
available electronically at 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 at www.regulations.gov, some 
information may be publicly available only at the hard copy location 
(e.g., copyrighted material, large maps), and some may not be publicly 
available in either location (e.g., confidential business information). 
To inspect the hard copy materials, please schedule an appointment 
during normal business hours with the contact listed directly below.

FOR FURTHER INFORMATION CONTACT: Thomas Webb, U.S. EPA, Region 9, 
Planning Office, Air Division, Air-2, 75 Hawthorne Street, San 
Francisco, CA 94105. Thomas Webb can be reached at telephone number 
(415) 947-4139 and via electronic mail at webb.thomas@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to EPA.

Table of Contents

I. Overview of Proposed Action
II. Public Comments and EPA Responses
III. Summary of Final Action
IV. Statutory and Executive Order Reviews

I. Overview of Proposed Action

    We proposed on February 5, 2013, to disapprove Arizona's SIP to 
implement the regional haze program under 40 CFR 51.309.\1\ 
Specifically, we proposed to disapprove in part a December 24, 2008, 
submittal by the Arizona Department of Environmental Quality (ADEQ) in 
which the State resubmitted materials previously submitted on December 
23, 2003, and December 30, 2004 (collectively ``Arizona's 309 Regional 
Haze SIP'').\2\ These SIP submittals were intended to address the 
regional haze requirements of the CAA and EPA's implementing 
regulations at 40 CFR 51.309 for four of Arizona's mandatory Class I 
areas. Our proposed rule includes additional information about these 
requirements and Arizona's SIP submittals.
---------------------------------------------------------------------------

    \1\ 78 FR 8083.
    \2\ As explained in our proposal, this disapproval is 
``partial'' rather than ``full'' because EPA previously approved 
certain burning and smoke management rules that were part of the 
2008 SIP submittal.
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II. Public Comments and EPA Responses

    During the 30-day comment period on our proposal, we received 
comments from:
     Eric Massey, Director Air Quality, ADEQ; and
     David Nimkin, Gloria Smith, Barbara Warren, Donna House 
and Dan Randolph, on behalf of National Parks Conservation Association, 
Sierra Club, Physicians for Social Responsibility (Arizona Chapter), 
Dine' Citizens Against Ruining Our Environment, and San Juan Citizens 
Alliance (collectively, the ``Conservation Organizations'').

We carefully considered these comments, which are located in the docket 
for this action. In the following sections, we provide summaries of and 
our responses to these comments.
    Comment 1: ADEQ commented that its December 24, 2008, ``re-
submittal'' letter was not a revision to Arizona's 309 Regional Haze 
SIP because it did not include new information and was not subject to a 
formal public comment period. ADEQ further asserted that its 2003 and 
2004 SIP submittals were deemed complete by operation of law six months 
after submission, pursuant to CAA section 110(k)(1)(B), and that EPA 
should have acted on these submittals within 18 months pursuant to CAA 
section 110(k)(2).
    Response 1: As an initial matter, ADEQ's comment appears to have no 
relevance to the substance of EPA's proposed action. Regardless of 
whether ADEQ's December 24, 2008, re-submittal letter was a SIP 
revision or merely a request that EPA act upon ADEQ's 2003 and 2004 SIP 
submittals, the fact remains that Arizona's 309 Regional Haze SIP does 
not satisfy the requirements of 40 CFR 51.309(d)(4) and is therefore 
not approvable. We also note that ADEQ's comment appears to contradict 
the statements made in the December 24, 2008, re-submittal letter 
itself.\3\ The re-submittal letter states that:
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    \3\ Letter from Stephen A. Owens, ADEQ, to Wayne Nastri, EPA, 
December 24, 2008 (``re-submittal letter'').

    Plan submittal is consistent with the provisions of Arizona 
Revised Statutes (ARS) Title 49, Sec. Sec.  49- 104, 49- 06, 49-
404,49-406, 49-414, and 49-414.0 1 and the Code of Federal 
Regulations (CFR) Title 40, Sec. Sec.  51.102-51.104. The plan also 
complies with the public process requirements in Section 110(a)(l) 
and (a)(2) of the Clean Air Act; 40 CFR 51.102 regarding 
preparation, notice, and submission of state implementation plans; 
and Arizona Revised Statutes 49-425 regarding notice and [public] 
review of rules.\4\
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    \4\ Id. at 1.

Consistent with these statements regarding public process, EPA viewed 
the re-submittal letter as a SIP revision. However, if Arizona did not 
intend for the letter to be a SIP revision, then we construe it as a 
withdrawal of those

[[Page 48327]]

portions of the State's 2003 and 2004 SIP submittals addressing the 
stationary source requirements of 40 CFR 51.309(d)(4), as well as an 
acknowledgment of the State's failure to submit provisions to address 
eight of the State's Class I areas under 40 CFR 51.309(g). As the 
---------------------------------------------------------------------------
letter explains:

    This plan submittal does not include provisions under Sec.  
309(d)(4) or Sec.  309(g). Due to the new requirements for 
stationary source control strategies based on the decision rendered 
in Center for Energy and Economic Development (CEED) v. EPA, 398 
F.3d 653 (DC Cir. 2005), Arizona has not been able to complete 
revisions to Sec.  309(d)(4) or complete Sec.  309(g) by the 
deadline of December 17, 2007.\5\
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    \5\ Id. at 2.

Thus, the re-submittal letter clearly acknowledged that Arizona's 309 
Regional Haze SIP lacked any provisions to address the critical 
requirements of 40 CFR 51.309(d)(4) and 51.309(g).
    The absence of these provisions cannot be remedied by the fact that 
Arizona's 2003 and 2004 SIP submittals were deemed ``complete'' by 
operation of law. Section 110(k)(1)(A) of the CAA requires EPA to 
``promulgate minimum criteria that any plan submission must meet before 
the Administrator is required to act on such submission under this 
subsection.'' \6\ Pursuant to this requirement, EPA has promulgated 
``completeness criteria,'' consisting of administrative materials and 
technical support elements that must be included with all SIP 
submittals.\7\ These criteria do not include the substantive provisions 
that a given SIP must include to comply with the minimum requirements 
of the CAA. Rather, such substantive requirements are set out in the 
CAA itself and in EPA's implementing regulations. Thus, the fact that 
the 2003 and 2004 SIP submittals were deemed ``complete'' with respect 
to the minimum criteria required under CAA section 110(k)(1)(A) does 
not mean that the submittals were complete in the sense that they 
contained the provisions necessary to satisfy the requirements of 40 
CFR 51.309. On the contrary, ADEQ acknowledged in its re-submittal 
letter that Arizona's 309 Regional Haze SIP ``does not include 
provisions under Sec.  309(d)(4) or Sec.  309(g).'' \8\
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    \6\ 42 U.S.C. 7410(k)(1)(A).
    \7\ 40 CFR part 51, Appendix V.
    \8\ Re-submittal letter at 2.
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    Finally, ADEQ's assertion that EPA should have acted on the State's 
2003 and 2004 SIP submittals within 18 months of December 30, 2004, is 
not persuasive. The D.C. Circuit's decision in Center for Energy & 
Economic Development v. EPA, 398 F.3d 653 (D.C. Cir. 2005) (``CEED''), 
which invalidated 40 CFR 51.309's stationary source requirements, was 
issued on February 18, 2005. In response to this decision, EPA proposed 
revisions to 40 CFR 51.309 on August 1, 2005.\9\ Among other things, 
EPA proposed to allow states to submit or resubmit 309 SIPs at a later 
date in order to provide time for States to revisit the SO2 
milestones and backstop emission trading program. EPA further explained 
that:
---------------------------------------------------------------------------

    \9\ 70 FR 44154 (August 1, 2005).

    With respect to the other strategies contained in Sec.  51.309, 
although these other provisions of Sec.  51.309 were not affected by 
the decision in CEED v. EPA and may remain effective as a matter of 
State law in each State, the EPA cannot approve implementation plans 
under Sec.  51.309 as meeting reasonable progress until the plans 
contain valid provisions for addressing stationary sources.\10\
---------------------------------------------------------------------------

    \10\ Id. at 44165.

Thus, EPA clearly indicated that we could not approve previously 
submitted 309 SIPs until they were resubmitted with valid provisions 
for addressing stationary sources. EPA ultimately set a deadline of 
December 17, 2007, for these re-submittals.\11\ Regardless of whether 
ADEQ's December 24, 2008, re-submittal letter is characterized as a SIP 
revision or merely a prompt for EPA to act upon the State's earlier 
2003 and 2004 SIP submittals, the fact remains that Arizona, by its own 
admission, failed to submit provisions addressing the requirements of 
40 CFR 51.309(d)(4) and 51.309(g). Finally, even if it were true that 
EPA should have acted on Arizona's 2003 and 2004 SIP submittals within 
18 months, it is irrelevant to the substance of the action EPA is 
taking in this final rule. EPA is addressing the approvability of 
Arizona's 309 Regional Haze SIP now and partially disapproving it 
because the SIP does not satisfy the requirements of 40 CFR 
51.309(d)(4).
---------------------------------------------------------------------------

    \11\ Id. at 44166.
---------------------------------------------------------------------------

    Comment 2: ADEQ commented that EPA had no authority to adopt a 
Federal Implementation Plan (FIP) in its December 5, 2012, final rule 
that established BART for three power plants in Arizona.\12\ ADEQ 
argued that EPA's January 15, 2009, finding of failure to submit 
(``Finding''),\13\ which provided the basis for EPA's FIP authority, 
was invalid because Arizona submitted 309 SIPs in 2003 and 2004, both 
of which were deemed complete by operation of law. Finally, ADEQ 
asserted that if EPA did have FIP authority, then it would extend only 
to the requirements of 40 CFR 51.309(d)(4) and 51.309(g), not to the 
requirement for BART.
---------------------------------------------------------------------------

    \12\ 77 FR 72512 (December 5, 2012).
    \13\ 74 FR 2392 (January 15, 2009).
---------------------------------------------------------------------------

    Response 2: As an initial matter, this comment is not germane in 
any way to the present rulemaking, in which EPA is finalizing its 
partial disapproval of Arizona's 309 Regional Haze SIP for failure to 
comply with the requirements of 40 CFR 51.309(d)(4). Rather, ADEQ's 
comment appears to be a collateral challenge to EPA's Finding and other 
rulemakings EPA has conducted involving regional haze and BART 
requirements in Arizona. We note that ADEQ's objection to EPA's Finding 
comes nearly three years after the statutory deadline for challenging 
that action has passed. Under the CAA, any party seeking judicial 
review of EPA's Finding was required to file a petition for review 
within 60 days of publication of the Finding in the Federal Register, 
or by no later than March 16, 2009. No party, including Arizona, filed 
such a petition. Therefore, ADEQ's claim that EPA's Finding was invalid 
and that EPA did not have FIP authority to promulgate its December 5, 
2012, final rule is time-barred.
    We also disagree with the substance of ADEQ's comment. As ADEQ 
noted in its comment, EPA's authority to issue a FIP arises from one of 
three triggering events: (1) A finding that a state has failed to make 
a required SIP submittal; (2) a finding that a SIP submittal does not 
satisfy the minimum criteria of CAA section 110(k)(1)(A); or (3) the 
disapproval, in whole or in part, of a SIP submittal.\14\ Contrary to 
ADEQ's assertion, the fact that Arizona's 2003 and 2004 SIP submittals 
were deemed ``complete'' by operation of law has no bearing on EPA's 
Finding, which was premised on the fact that Arizona failed to submit 
SIP provisions to satisfy the requirements of 40 CFR 51.309(d)(4) and 
51.309(g). The State's 2003 and 2004 SIP submittals could not have 
addressed 40 CFR 51.309(d)(4) and 51.309(g) because the former 
requirement was modified in response to the D.C. Circuit's 2005 
decision in CEED, while the latter requirement did not even exist until 
EPA finalized our revisions to 40 CFR 51.309 in 2006.\15\ ADEQ 
acknowledged this fact in its December 24, 2008, re-submittal letter, 
which plainly stated that Arizona's 309 Regional Haze SIP addresses 
neither 40 CFR 51.309(d)(4) nor 51.309(g).\16\
---------------------------------------------------------------------------

    \14\ 42 U.S.C. 7410(c)(1).
    \15\ 71 FR 60633 (October 13, 2006) codified at 40 CFR 51.309.
    \16\ Re-submittal letter at 2.
---------------------------------------------------------------------------

    Additionally, we disagree with ADEQ's contention that EPA's FIP

[[Page 48328]]

authority is somehow limited to the requirements of 40 CFR 51.309(d)(4) 
and 51.309(g). Section 309 is an alternative route to compliance with 
the regional haze rule that can only be implemented at the election of 
the state. The regional haze rule clearly explains that if a state 
chooses to fulfill its regional haze obligation under 40 CFR 51.309, 
but fails to submit the SIP provisions necessary to satisfy that 
obligation, then the state remains subject to the requirements of 40 
CFR 51.308.\17\ Thus, when Arizona failed to submit SIP provisions 
addressing the requirements of 40 CFR 51.309(d)(4) and 51.309(g) by the 
December 17, 2007, deadline, Arizona remained subject to the general 
requirements of 40 CFR 51.308. In other words, the regulatory gap left 
by Arizona's failure to submit a comprehensive 309 SIP was a duty to 
submit a 308 SIP. As a result, EPA's Finding triggered a duty on behalf 
of EPA to issue a FIP that satisfied the requirements of 40 CFR 51.308, 
which include the requirement to establish BART for certain stationary 
sources.
---------------------------------------------------------------------------

    \17\ See 40 CFR 51.309(a) (``Any Transport Region State electing 
not to submit an implementation plan under this section is subject 
to the requirements of Sec.  51.308 in the same manner and to the 
same extent as any State not included within the Transport 
Region.''). See also 64 FR 35754, July 1, 1999 (explaining that 
``the requirements of Section 51.309 . . . are not severable. States 
that wish to take advantage of the GCVTC's efforts and EPA's 
acceptance thereof are obligated to meet all of the requirements of 
section 51.309'' (emphasis added)).
---------------------------------------------------------------------------

    Finally, even if EPA's FIP authority were somehow limited to the 
requirements of 40 CFR 51.309(d)(4) and 51.309(g), those provisions are 
far more expansive than ADEQ suggests. Section 51.309(d)(4) governs 
emissions of nitrogen oxides (NOX), particulate matter (PM), 
and sulfur dioxide (SO2) from stationary sources that cause 
or contribute to visibility impairment in the Class I areas on the 
Colorado Plateau. In particular, 40 CFR 51.309(d)(4)(i) requires the 
establishment of quantitative SO2 emission ``milestones'' 
that provide for emissions reductions, which ``must be shown to provide 
for greater reasonable progress than would be achieved by application 
of BART pursuant to Sec.  51.308(e)(2).'' In addition, 40 CFR 
51.309(d)(4)(vi) requires 309 SIPs to ``contain any necessary long term 
strategies and BART requirements for stationary source PM and 
NOX emissions.'' Finally, 40 CFR 51.309(g) includes the 
requirements for Arizona's eight other Class I Areas and mandates, 
among other things, the establishment of reasonable progress goals and 
implementation of ``any additional measures necessary to demonstrate 
reasonable progress,'' consistent with the requirements of 40 CFR 
51.308(d)(1)-(4). In short, the requirements of 40 CFR 51.309(d)(4) and 
51.309(g) encompass three critical elements of the regional haze 
program: Reasonable progress, long-term strategies, and BART (or 
``better-than-BART'' alternatives) for NOX, PM, and 
SO2. Therefore, even if EPA's FIP authority were somehow 
limited to fulfilling the requirements of 40 CFR 51.309(d)(4) and 
51.309(g), that authority nevertheless extends to each of these 
critical elements, which include BART.
    Comment 3: ADEQ commented that EPA's delay in acting on Arizona's 
309 Regional Haze SIP and the Agency's promulgation of a FIP in a 
separate rulemaking did not give Arizona an adequate chance to revise 
its SIP to address the identified deficiencies.
    Response 3: Arizona has been on notice since August 1, 2005, when 
EPA proposed to amend 40 CFR 51.309 in response to the D.C. Circuit's 
decision in CEED, of the deficiencies associated with the State's 2003 
and 2004 SIP submittals. There, EPA publicly stated that ``EPA cannot 
approve implementation plans under section 51.309 as meeting reasonable 
progress until the plans contain valid provisions for addressing 
stationary sources.'' \18\ We also explained that ``[s]tates opting for 
Sec.  51.309 will be required to resubmit SIPs some time after [the 
invalidated portions of the 309 regulations] have been rectified . . . 
.'' \19\ EPA's October 2006 final rule amending 40 CFR 51.309 also made 
clear that Arizona would have to revise and resubmit its 309 SIP to 
address 40 CFR 51.309(d)(4) and 51.309(g) by December 17, 2007.\20\ 
Arizona's December 24, 2008, re-submittal letter, which stated ``[t]his 
plan submittal does not include provisions under Sec.  309(d)(4) or 
Sec.  309(g),'' \21\ illustrates that Arizona was well aware of these 
requirements and the deficiencies in its 309 SIP.
---------------------------------------------------------------------------

    \18\ 70 FR 44165 (August 1, 2005).
    \19\ Id. at 44165, 44166.
    \20\ 71 FR 60633 (October 13, 2006) codified at 40 CFR 51.309.
    \21\ Re-submittal letter at 2.
---------------------------------------------------------------------------

    EPA found on January 15, 2009, that Arizona failed to re-submit the 
required provisions, again stating explicitly and on public record:

    Arizona, New Mexico, and Wyoming have opted to develop SIPs 
based on the recommendations of the Grand Canyon Visibility 
Transport Commission under 40 CFR 51.309. All three States have 
failed to submit the plan elements required by 40 CFR 51.309(g), the 
reasonable progress requirements for areas other than the 16 Class I 
areas covered by the Grand Canyon Visibility Transport Commission 
Report. Arizona and New Mexico have also failed to submit the plan 
element required by 40 CFR 51.309(d)(4), the alternate stationary 
source program for control of sulfur dioxide (SO2).\22\
---------------------------------------------------------------------------

    \22\ 74 FR 2393 (January 15, 2009).

Around the same time, EPA sent a letter to ADEQ notifying the State of 
the implications of its failure to submit the required SIP provisions, 
---------------------------------------------------------------------------
explaining that:

    Upon the effective date of the Federal Register notice, EPA must 
within two years either fully approve Arizona's regional haze SIP or 
promulgate a Federal implementation plan (FIP) as required by CAA 
section 110(c). Please be aware that EPA needs about 12 months after 
receipt of a SIP to take final action. If we do not have sufficient 
time to review and approve a submitted SIP revision, the CAA 
requires that EPA impose a FIP. In order to avoid having EPA issue a 
FIP, we strongly recommend that you submit your SIP revision within 
a year of this finding, or sooner if possible.\23\
---------------------------------------------------------------------------

    \23\ Letter from Deborah Jordan, EPA, to Stephen Owens, ADEQ 
(January 14, 2009).

Thus, over the last eight years, EPA has repeatedly and publicly 
specified the deficiencies in Arizona's 309 Regional Haze SIP and 
allowed ample time for Arizona to address these deficiencies.
    Comment 4: The Conservation Organizations expressed their support 
for EPA's determination that Arizona's 309 Regional Haze SIP fails to 
comply with the requirements of the regional haze rule. They provided a 
summary of the requirements of 40 CFR 51.309(d)(4) and a history of 
Arizona's regional haze SIP submissions since EPA's 2006 revisions to 
the section 309 requirements, concluding that ``EPA's final rule should 
disapprove Arizona's 309 SIP for failure to comply with the 
requirements of Section 309(d)(4).'' They further asserted that ``EPA's 
final rule should find that Arizona declined to participate in the 
alternative Section 309 [Western Backstop Trading Program] and instead 
has chosen to address SO2, NOX, and PM reductions 
through the BART process and long-term strategy requirements found in 
Section 308.''
    Response 4: We agree with this comment and acknowledge the 
Conservation Organizations' support for this rulemaking.

III. Summary of Final Action

    For the reasons set out in our proposed rule and in this final 
rulemaking, we are finalizing our partial disapproval of Arizona's 309 
Regional Haze SIP. In particular, we are disapproving all portions of 
Arizona's 2003 and 2004 SIP submittals, except those portions that have 
already been

[[Page 48329]]

approved and those portions pertaining to Reasonably Attributable 
Visibility Impairment (RAVI).
    Under section 179(a) of the CAA, EPA's final disapproval of a 
submittal that addresses a requirement of CAA sections 171-193 or a 
revision that is required in response to a finding of substantial 
inadequacy as described in CAA section 110(k)(5) starts a sanctions 
clock. Arizona's 309 Regional Haze SIP was not submitted to meet either 
of these requirements. Therefore, today's action will not trigger 
mandatory sanctions under CAA section 179(a).
    In addition, CAA section 110(c)(1) requires EPA to promulgate a FIP 
at any time within two years after disapproving a SIP in whole or in 
part, unless EPA first approves a SIP correcting the deficiencies. As 
explained above, due to our previous Finding that Arizona failed to 
submit a complete regional haze SIP, EPA is already subject to a FIP 
duty under section 110(c)(1) with respect to the regional haze 
requirements for Arizona. Moreover, we are also subject to a set of 
court-ordered deadlines by which we must approve a SIP and/or 
promulgate a FIP that collectively meet the regional haze requirements 
for Arizona.\24\ Thus, we do not construe today's partial disapproval 
of Arizona's 309 Regional Haze SIP as creating any new FIP obligation. 
However, as noted in our proposed rulemaking, Arizona is appealing the 
district court's entry and modification of the consent decree that set 
the deadlines for EPA action on regional haze plans for Arizona.\25\ If 
Arizona's challenge ultimately results in any changes to the scope of 
EPA's existing FIP duty with respect to regional haze in Arizona, then 
today's action will trigger a two-year FIP clock for any additional 
regional haze requirements that are not subject to the previous FIP 
clock.
---------------------------------------------------------------------------

    \24\ National Parks Conservation Association v. Jackson (D.D.C. 
Case 1:11-cv-01548).
    \25\ National Parks Conservation Association v. EPA (D.C. Cir., 
USCA Case 12-5211).
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IV. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order (E.O.) 12866 (58 FR 51735, October 4, 1993) 
and is therefore not subject to review under the E.O.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Burden is defined at 5 CFR 1320.3(b).

 C. Regulatory Reduction 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 rule will not have a significant impact on a substantial 
number of small entities because SIP approvals or SIP disapprovals 
under section 110 of the Clean Air Act do not create any new 
requirements but simply approve or disapprove requirements that the 
State is already imposing. Therefore, because the disapproval of SIP 
revisions 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 a 
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).

D. Unfunded Mandates Reform Act

    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 
costs to State, local, or tribal governments in the aggregate, or to 
the 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 this action 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 disapproves certain SIP elements 
and imposes no new requirements. Accordingly, no additional costs to 
State, local, or tribal governments, or to the private sector, result 
from this action.

E. Executive Order 13132, Federalism

    Executive Order 13132 requires EPA to develop an accountable 
process to ensure ``meaningful and timely input by State and local 
officials in the development of regulatory policies that have 
federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that 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.'' Under Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law unless the 
Agency consults with State and local officials early in the process of 
developing the proposed regulation.
    This rule will 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, because it 
merely disapproves certain SIP revisions implementing and does not 
alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. Thus, the 
requirements of section 6 of the Executive Order do not apply to this 
rule.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This rule does not have 
tribal implications, as specified in Executive Order 13175. It will not 
have

[[Page 48330]]

substantial direct effects on tribal governments, 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. Thus, Executive Order 13175 does not 
apply to this rule.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
rule is not subject to Executive Order 13045, because it disapproves 
certain SIP revisions.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    EPA believes that VCS are inapplicable to this action. Today's 
action does not require the public to perform activities conducive to 
the use of VCS.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Population

    Executive Order (E.O.) 12898 (59 FR 7629 (Feb. 16, 1994)) 
establishes federal executive policy on environmental justice. Its main 
provision directs federal agencies, to the greatest extent practicable 
and permitted by law, to make environmental justice part of their 
mission by identifying and addressing, as appropriate, 
disproportionately high and adverse human health or environmental 
effects of their programs, policies, and activities on minority 
populations and low-income populations in the United States.
    EPA lacks the discretionary authority to address environmental 
justice in this rulemaking. In reviewing SIP submissions, EPA's role is 
to approve or disapprove state choices, based on the criteria of the 
Clean Air Act. Accordingly, this action merely disapproves certain SIP 
revisions under section 110 of the Clean Air Act and will not in-and-of 
itself create any new requirements. Accordingly, it 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.

K. Congressional Review Act

    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. 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).

L. 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 October 7, 2013. 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, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Particulate 
matter, Sulfur oxides, Visibility.

    Dated: July 26, 2013.
Jared Blumenfeld,
Regional Administrator, EPA Region IX.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for Part 52 continues to read as follows:

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

Subpart D--Arizona

0
2. Section 52.145 is amended by adding paragraph (h) to read as 
follows:


Sec.  52.145  Visibility protection.

* * * * *
    (h) Disapproval. The following portions of the Arizona SIP are 
disapproved because they do not meet the applicable requirements of 
Clean Air Act sections 169A and 169B and the Regional Haze Rule at 40 
CFR 51.309:
    (1) Regional Haze State Implementation Plan for the State of 
Arizona (``Arizona 309 Regional Haze SIP'') submitted by the Arizona 
Department of Environmental Quality on December 23, 2003, with the 
exception of Chapter 5 (Strategy to Address Reasonably Attributable 
Visibility Impairment (RAVI)) and Appendix A-5 (Attributable 
Impairment).
    (2) The Arizona Regional Haze State Implementation Plan Revision 
submitted by the Arizona Department of Environmental Quality on 
December 31, 2004, with the exception of the provisions already 
approved at 40 CFR 52.120(c)(131).
    (3) Letter from Stephen A. Owens, Director, Arizona Department of 
Environmental Quality, dated December 24, 2008 re: Submittal of Arizona 
Regional Haze State Implementation Plan.

[FR Doc. 2013-18881 Filed 8-7-13; 8:45 am]
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