Revisions to Air Plan; Arizona; Stationary Sources; New Source Review, 67319-67334 [2015-27785]
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Federal Register / Vol. 80, No. 211 / Monday, November 2, 2015 / Rules and Regulations
(d) Effective date. This rule will be
effective from October 27, 2015 to
November 15, 2015 and will be enforced
with actual notice while emergency
salvage operations are ongoing.
Dated: October 27, 2015.
M. C. Long,
Captain, U.S. Coast Guard, Acting Captain
of the Port Miami.
[FR Doc. 2015–27751 Filed 10–30–15; 8:45 am]
BILLING CODE 9110–04–P
ENVIRONMENTAL PROTECTION
AGENCY
California. Some docket materials,
however, may be publicly available only
at the hard copy location (e.g.,
voluminous records, maps, copyrighted
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To inspect the hard copy materials,
please schedule an appointment during
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FOR FURTHER INFORMATION CONTACT: Lisa
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3811, beckham.lisa@epa.gov.
Table of Contents
40 CFR Part 52
[EPA–R09–OAR–2015–0187; FRL–9930–43–
Region 9]
Revisions to Air Plan; Arizona;
Stationary Sources; New Source
Review
I. Background
II. The EPA’s Evaluation of the SIP Revision
A. What action is the EPA finalizing?
B. What changes is the EPA making from
its proposed action?
C. Public Comments and Responses
III. Final Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews
Environmental Protection
Agency (EPA).
ACTION: Final rule.
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AGENCY:
For the purpose of this document, we
are giving meaning to certain words or
initials as follows:
SUMMARY: The Environmental Protection
Agency (EPA) is finalizing a limited
approval and limited disapproval of,
and other actions on, revisions to the
Arizona Department of Environmental
Quality (ADEQ) portion of the
applicable state implementation plan
(SIP) for the State of Arizona (State or
Arizona) under the Clean Air Act (CAA
or Act). These revisions submitted by
Arizona are primarily intended to serve
as a replacement of ADEQ’s existing
SIP-approved rules for the issuance of
New Source Review (NSR) permits for
stationary sources, including review and
permitting of major and minor sources
under the Act. After a lengthy
stakeholder process, the State submitted
a NSR program for SIP approval that
satisfies most of the applicable CAA and
NSR regulatory requirements, and
which will significantly update ADEQ’s
existing SIP-approved NSR program. It
also represents an overall strengthening
of ADEQ’s SIP-approved NSR program
by clarifying and enhancing the NSR
requirements for major and minor
stationary sources. This final action
updates the applicable plan while
allowing ADEQ to remedy certain
deficiencies in ADEQ’s rules.
DATES: This rule is effective December 2,
2015.
ADDRESSES: EPA has established docket
number EPA–R09–OAR–2015–0187 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,
(i) The words or initials Act or CAA mean
or refer to the Clean Air Act, unless the
context indicates otherwise.
(ii) The initials ADEQ mean or refer to the
Arizona Department of Environmental
Quality.
(iii) The initials A.R.S. mean or refer to the
Arizona Revised Statutes.
(iv) The initials AQIA mean or refer to air
quality impact analysis.
(v) The initials BACT mean or refer to Best
Available Control Technology.
(vi) The initials CFR mean or refer to Code
of Federal Regulations.
(vii) The initials CO mean or refer to
carbon monoxide.
(viii) The words EPA, we, us or our mean
or refer to the United States Environmental
Protection Agency.
(ix) The initials FIP mean or refer to
Federal Implementation Plan.
(x) The initials GHG mean or refer to
greenhouse gas.
(xi) The initials IBR mean or refer to
incorporation by reference.
(xii) The initials LAER mean or refer to
Lowest Achievable Emissions Rate.
(xiii) The initials NAAQS mean or refer to
National Ambient Air Quality Standards.
(xiv) The initials NA–NSR mean or refer to
Nonattainment New Source Review.
(xv) The initials NOX mean or refer to
nitrogen oxides.
(xvi) The initials NSR mean or refer to New
Source Review.
(xvii) The initials PAL mean or refer to
Plantwide Applicability Limits
(xviii) The initials PM10 mean or refer to
particulate matter with an aerodynamic
diameter of less than or equal to 10
micrometers.
(xix) The initials PM2.5 mean or refer to
particulate matter with an aerodynamic
diameter of less than or equal to 2.5
micrometers (fine particulate matter).
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(xx) The initials PSD mean or refer to
Prevention of Significant Deterioration.
(xxi) The initials PTE mean or refer to
potential to emit.
(xxii) The initials RACT mean or refer to
reasonably available control technology.
(xxiii) The initials SER mean or refer to
significant emission rate.
(xxiv) The initials SIP mean or refer to
State Implementation Plan.
(xxv) The initials SMC mean or refer to
significant monitoring concentration.
(xxvi) The initials SO2 mean or refer to
sulfur dioxide.
(xxvii) The initials SRP mean or refer to the
Salt River Project Agricultural Improvement
and Power District.
(xxviii) The words State or Arizona mean
the State of Arizona, unless the context
indicates otherwise.
(xxix) The initials TSD mean or refer to the
technical support document for this action.
(xxx) The initials VOC mean or refer to
volatile organic compound.
I. Background
On March 18, 2015, the EPA provided
notice of, and requested public
comment on, our proposed CAA
rulemaking to revise certain portions of
the Arizona SIP for ADEQ. See 80 FR
14044 (Mar. 18, 2015). We proposed
action on SIP submittals that comprise
ADEQ’s updated program for
preconstruction review and permitting
of new or modified stationary sources
under ADEQ’s jurisdiction in Arizona.1
The SIP submittals that are the subject
of this action, referred to herein as the
‘‘NSR SIP submittal,’’ provide a
comprehensive revision to ADEQ’s
preconstruction review and permitting
program for stationary sources and are
intended to satisfy requirements under
both part C (prevention of significant
deterioration) (PSD) and part D
(nonattainment new source review) of
title I of the Act as well as the general
preconstruction review requirements
under section 110(a)(2)(C) of the Act.
As a component of its NSR SIP
submittal, ADEQ also requested the
removal from the Arizona SIP of
numerous older rules, as well as one
Arizona statutory provision, which are
mostly superseded by the newer
provisions that are the subject of this
action or by newer provisions that have
already been approved into the Arizona
SIP. Accordingly, our action also will
remove certain provisions from the
Arizona SIP.
The EPA’s rulemaking action on the
ADEQ NSR SIP submittal is intended to
update the applicable SIP consistent
with ADEQ’s requests, while allowing
ADEQ to remedy certain deficiencies in
1 These submittals and our current action also
address two rules and one statutory provision that
are not directly related to NSR.
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the submittal where ADEQ’s rules do
not fully meet CAA requirements. In our
proposed rulemaking action, we
primarily proposed a limited approval
and limited disapproval, with certain
exceptions and additions with respect to
specific statutory and rule provisions, as
follows. We proposed partial
disapproval of two specific components
of ADEQ’s NSR submittal that we
believed were analogous to provisions
in the federal NSR regulations that had
been vacated by federal Courts and that
we determined were separable from the
remainder of the NSR SIP submittal. In
addition, we proposed a limited
approval for a portion of ADEQ’s
nonattainment NSR (NA–NSR) program
based on requirements of section 189(e)
of the Act related to the permitting of
major sources of PM10 and PM2.5
precursors, but did not propose a
limited disapproval on this basis. For
two non-NSR rules for which ADEQ
requested SIP approval, we also
proposed a limited approval and limited
disapproval. For a non-NSR statutory
provision for which ADEQ requested
SIP approval, A.R.S. § 49–107, we
proposed full approval into the SIP.
Last, we proposed to remove numerous
NSR and non-NSR rules from the SIP as
requested by ADEQ.2
The ADEQ NSR SIP submittal was
extensive in scope. We prepared a
comprehensive Evaluation of the
submittal in light of the requirements of
the CAA and its implementing
regulations, and provided a detailed
discussion of our findings in the
Technical Support Document (TSD) for
our proposed action. Both the
Evaluation and the TSD were available
in the docket for our rulemaking during
the public comment period. Our
proposed rule discussed our analysis
and findings, but focused primarily on
the issues that formed the basis for our
limited approval/limited disapproval of
the ADEQ NSR SIP submittal, and
referenced the TSD for additional
information concerning our analysis.
The Evaluation was an attachment to
the TSD.
II. The EPA’s Evaluation of the SIP
Revision
A. What action is the EPA finalizing?
The EPA is finalizing a SIP revision
for the ADEQ portion of the Arizona SIP
for the rules and statutory provision
listed in Table 1. The SIP revision will
be codified in 40 CFR 52.120 by
incorporating by reference the rules and
statutory provision in ADEQ’s NSR SIP
submittal as listed in Table 1.3 Certain
non-regulatory submittals and
clarifications provided by ADEQ will
also be included as part of the Arizona
SIP in 40 CFR 52.120. In this final
action, the EPA is relying, in part, on
the clarifications and interpretations
provided by ADEQ, as described in the
discussion of our responses to
comments in Section II.C below.
TABLE 1—SUBMITTED STATUTES AND RULES APPROVED IN THIS ACTION
State
effective
date
Rule or statute
Title
A.R.S. § 49–107 ............................................................
R18–2–101 [only definitions (2), (32), (87), (109), and
(122)].
R18–2–217 ...................................................................
R18–2–218 ...................................................................
R18–2–301 ...................................................................
R18–2–302 ...................................................................
R18–2–302.01 ..............................................................
R18–2–303 ...................................................................
Local delegation of state authority ...............................
Definitions .....................................................................
8/18/1987
08/07/2012
07/2/2014
10/29/2012
Designation and Classification of Attainment Areas ....
Limitation of Pollutants in Classified Attainment Areas
Definitions .....................................................................
Applicability; Registration; Classes of Permits .............
Source Registration Requirements ..............................
Transition from Installation and Operating Permit Program to Unitary Permit Program; Registration transition; Minor NSR Transition.
Permit Application Processing Procedures ..................
Permit Contents ............................................................
Permits Containing Voluntarily Accepted Emission
Limitations and Standards.
Establishment of an Emissions Cap ............................
Test Methods and Procedures .....................................
Performance Tests .......................................................
Posting of Permit ..........................................................
Notice by Building Permit Agencies .............................
Minor Permit Revisions ................................................
Significant Permit Revisions .........................................
Permit Reopenings; Revocation and Reissuance ........
Permit Transfers ...........................................................
Public Participation .......................................................
Stack Height Limitation .................................................
Minor New Source Review ...........................................
Definitions .....................................................................
General .........................................................................
Permits for Sources Located in Nonattainment Areas
Offset Standards ...........................................................
Special Rule for Major Sources of VOC or Nitrogen
Oxides in Ozone Nonattainment Areas Classified
as Serious or Severe.
11/15/1993
08/07/2012
08/07/2012
08/07/2012
08/07/2012
08/07/2012
10/29/2012
10/29/2012
10/29/2012
10/29/2012
10/29/2012
10/29/2012
08/07/2012
12/20/1999
1/1/2007
10/29/2012
10/29/2012
10/29/2012
09/22/1999
11/15/1993
11/15/1993
11/15/1993
05/14/1979
08/07/2012
08/07/2012
08/07/2012
02/03/2007
08/07/2012
11/15/1993
08/07/2012
08/07/2012
08/07/2012
08/07/2012
08/07/2012
08/07/2012
10/29/2012
07/28/2011
07/28/2011
10/29/2012
10/29/2012
10/29/2012
10/29/2012
10/29/2012
10/29/2012
10/29/2012
10/29/2012
10/29/2012
10/29/2012
10/29/2012
10/29/2012
10/29/2012
10/29/2012
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R18–2–304 ...................................................................
R18–2–306 ...................................................................
R18–2–306.01 ..............................................................
R18–2–306.02 ..............................................................
R18–2–311 ...................................................................
R18–2–312 ...................................................................
R18–2–315 ...................................................................
R18–2–316 ...................................................................
R18–2–319 ...................................................................
R18–2–320 ...................................................................
R18–2–321 ...................................................................
R18–2–323 ...................................................................
R18–2–330 ...................................................................
R18–2–332 ...................................................................
R18–2–334 ...................................................................
R18–2–401 ...................................................................
R18–2–402 ...................................................................
R18–2–403 ...................................................................
R18–2–404 ...................................................................
R18–2–405 ...................................................................
2 See Table 2, which identifies those rules and
statutory provisions that are being removed from
the Arizona SIP. This updated table corrects certain
typographical errors in the preamble of our
proposed action. See our discussion of those errors
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in our responses to comments 14–15 in our
Response to Comments document.
3 We listed an incorrect submittal date for certain
rules in the ADEQ NSR SIP submittal in Table 1 of
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Submitted
our proposed action; this date is corrected in Table
1 here. See response to comment 13 in our
Response to Comments document.
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TABLE 1—SUBMITTED STATUTES AND RULES APPROVED IN THIS ACTION—Continued
State
effective
date
Rule or statute
Title
R18–2–406 ...................................................................
Permit Requirements for Sources Located in Attainment and Unclassifiable Areas.
Air Quality Impact Analysis and Monitoring Requirements.
Air Quality Models ........................................................
PALs .............................................................................
R18–2–407 [excluding subsection (H)(1)(c)] ................
R18–2–409 ...................................................................
R18–2–412 ...................................................................
In addition, this final action removes
the rules and appendices listed in Table
Submitted
08/07/2012
10/29/2012
08/07/2012
10/29/2012
11/15/1993
08/07/2012
10/29/2012
10/29/2012
2 from the ADEQ portion of the Arizona
SIP.
TABLE 2—SIP RULES AND APPENDICES REMOVED FROM ARIZONA SIP IN THIS ACTION
EPA
approval
date
Rule or appendix
Title
R9–3–101 [excluding subsection (20)] .........................
R9–3–217(B) ................................................................
R9–3–301, [excluding subsections (I), (K)] ..................
R9–3–302 .....................................................................
R9–3–303 .....................................................................
R9–3–304, [excluding subsection (H)] .........................
R9–3–305 .....................................................................
R9–3–306 .....................................................................
R9–3–307 .....................................................................
R9–3–308 .....................................................................
R9–3–310 .....................................................................
R9–3–311 .....................................................................
R9–3–312 .....................................................................
R9–3–314 .....................................................................
R9–3–315 .....................................................................
R9–3–316 .....................................................................
R9–3–317 .....................................................................
R9–3–318 .....................................................................
Definitions .....................................................................
Attainment Areas: Classification and Standards ..........
Installation Permits: General ........................................
Installation Permits in Nonattainment Areas ................
Offset Standards ...........................................................
Installation Permits in Attainment Areas ......................
Air Quality Analysis and Monitoring Requirements ......
Source Registration Requirements ..............................
Replacement .................................................................
Permit Conditions .........................................................
Test Methods and Procedures .....................................
Air Quality Models ........................................................
Performance Tests .......................................................
Excess Emissions Reporting ........................................
Posting of Permits ........................................................
Notice by Building Permit Agencies .............................
Permit Non-transferrable; Exception ............................
Denial or Revocation of Installation or Operating Permit.
Permit Fees ..................................................................
Temporary Conditional Permits ....................................
Jurisdiction ....................................................................
Fee Schedule for Installation and Operating Permits ..
Fee Schedule for Conditional Permits .........................
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R8–3–319 .....................................................................
R9–3–322 .....................................................................
R9–3–1101 ...................................................................
Appendix 4 ....................................................................
Appendix 5 ....................................................................
In summary, this action is primarily a
limited approval and limited
disapproval of a SIP submittal from
Arizona for the ADEQ portion of the
Arizona SIP that governs
preconstruction review and the issuance
of preconstruction permits for stationary
sources, including the review and
permitting of new major sources and
major modifications under parts C and
D of title I of the CAA as well as review
of new and modified minor sources. The
intended effect of our final limited
approval and limited disapproval action
is to update the applicable SIP with
current ADEQ regulations, while
allowing ADEQ to remedy the identified
deficiencies in these regulations. We are
also removing at ADEQ’s request certain
rules and appendices from the Arizona
SIP, which are outdated and which are
mostly being superseded by this action.
In addition, we are finalizing a partial
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disapproval of one provision in ADEQ’s
NSR program that has been vacated by
the courts. We are finalizing a limited
approval of ADEQ’s NA–NSR program
for certain nonattainment areas based on
requirements under section 189 of the
Act related to PM10 and PM2.5
precursors (without a limited
disapproval on this basis). Last, we are
finalizing a limited approval and
limited disapproval of two ADEQ nonNSR rules relating to test methods and
procedures and performance tests, and
finalizing the approval of an Arizona
statutory provision relating to local
delegation of state authority.
We are finalizing the above-described
action because, although we find that
the new and amended rules submitted
by ADEQ meet most of the applicable
CAA requirements for preconstruction
review programs and other CAA
requirements, and that overall the SIP
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Federal
Register
citation
Various
04/23/1982
05/03/1983
08/10/1988
08/10/1988
05/03/1983
05/03/1983
05/03/1983
05/05/1982
04/23/1982
10/19/1984
04/23/1982
04/23/1982
04/23/1982
04/23/1982
04/23/1982
04/23/1982
04/23/1982
47
48
53
53
48
48
48
47
47
49
47
47
47
47
47
47
47
Various
FR 17483
FR 19878
FR 30220
FR 30220
FR 19878
FR 19878
FR 19878
FR 19326
FR 17483
FR 41026
FR 17483
FR 17483
FR 17483
FR 17483
FR 17483
FR 17483
FR 17483
04/23/1982
10/19/1984
05/03/1983
09/19/1977
09/19/1977
47
49
48
42
42
FR
FR
FR
FR
FR
17483
41026
19878
46926
44926
revisions improve and strengthen the
existing SIP, we have found certain
deficiencies that prevent full approval,
as explained in our proposed action and
in the TSD for this rulemaking, and in
this final action and our Response to
Comments document.
We reviewed the ADEQ NSR SIP
submittal in accordance with applicable
CAA requirements, primarily including
those that apply to: (1) General
preconstruction review programs,
including for minor sources, under
section 110(a)(2)(C) of the Act; (2) PSD
permit programs under part C of title I
of the Act; and (3) NA–NSR permit
programs under part D of title I of the
Act. For the most part, ADEQ’s
submittal satisfies the applicable CAA
requirements, including those for these
preconstruction review programs, and
our approval will strengthen the
applicable SIP by updating the
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regulations and adding provisions to
address new or revised federal NSR
permitting and other requirements.
However, the submitted rules also
contain specific deficiencies and
inconsistencies with CAA requirements
that prevent us from granting full SIP
approval. These deficiencies form the
basis for our limited approval and
limited disapproval action, and for our
partial disapproval of one rule
provision.
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B. What changes is the EPA making
from its proposed action?
We are largely finalizing our action as
proposed. However, in response to
public comments we received, our final
action differs in some respects from our
proposed action. For certain
deficiencies identified in our proposal
as bases for limited disapproval, we
have changed our determination and no
longer find that these are bases for our
limited disapproval. In addition, we
have changed our determination
concerning one of the ADEQ rule
provisions for which we had proposed
partial disapproval; we are not
finalizing our partial disapproval of this
provision.
Specifically, the following issues that
had been identified in our proposed
action as bases for limited disapproval
are not a basis for our final limited
disapproval: (1) ADEQ’s use of the term
‘‘proposed final permit’’ in its rules for
the minor NSR, PSD and NA–NSR
programs; (2) a question concerning
whether ADEQ rule R18–2–334(E)
requires ADEQ to review potential
impacts on the attainment and
maintenance of the National Ambient
Air Quality Standards (NAAQS) for all
minor sources subject to new source
review under ADEQ rule R18–2–334;4
(3) the lack of a definition in ADEQ’s
PSD regulations for the term ‘‘subject to
regulation;’’ (4) the lack of a reference in
ADEQ’s PSD rules to pollutants subject
to regulation in the definition of
‘‘regulated NSR pollutant,’’ per 40 CFR
51.166(b)(49)(iv); (5) the lack of certain
language in ADEQ’s PSD rules
concerning condensable particulate
matter, per 40 CFR 51.166(b)(49)(i); (6)
potential ambiguity as to whether
references to the undefined term
‘‘Arizona Ambient Air Quality
Standards’’ in ADEQ’s NSR regulations
refer to ADEQ’s Article 2 air quality
standards; (7) language concerning the
calculation of baseline actual emissions
under ADEQ’s plantwide applicability
4 Due to a typographical error, in discussing this
issue, the notice for our proposed action
inadvertently referenced subsection (G) of R18–2–
334 instead of subsection (E).
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limits (PALs) provisions for the PSD and
NA–NSR programs; and (8) public
notice requirements for alternative or
modified air modeling under ADEQ’s
rules for the PSD program. In addition,
we are not finalizing a partial
disapproval of ADEQ’s definition for
‘‘basic design parameter.’’ We now find
the ADEQ NSR SIP submittal
approvable with respect to these
particular issues. Our rationale for
changing our determination on these
issues is included in our Response to
Comments document for this action,
and some of these issues are also
discussed in the Public Comments and
Responses section below.
In addition, we are making three
technical corrections to address
typographical errors, as noted by
commenters: (1) Correction of SIP
submittal dates listed in Table 1 (listing
the rules and statutory provisions that
we are approving into the SIP) so that
‘‘10/29/2012’’ is listed instead of ‘‘10/
29/2014,’’ (2) correction of Table 2 (the
list of rules and appendices that we are
removing from the SIP) to exclude
subsection (20) from the provisions of
ADEQ rule R9–3–101 that we are
removing from the SIP, and (3) the
addition of ADEQ rules R9–3–310 and
R9–3–312 to the list of rules in Table 2.
Additional detail regarding these
technical corrections is provided in
response to comments 13 through 15 in
our Response to Comments document.
C. Public Comments and Responses
Our March 18, 2015 proposed rule
included a 30-day public comment
period that ended on April 17, 2015. We
received 3 written comments, one each
from the Office of Robert Ukeiley, the
Salt River Project Agricultural
Improvement and Power District (SRP),
and ADEQ. Copies of each comment
have been added to the docket for this
action and are accessible at
www.regulations.gov. Our Response to
Comments document in the docket for
this action contains a summary of all
comments received and the EPA’s
responses to the comments. Below we
provide the major issues raised by
commenters and our responses to those
comments.
Comment 1:
The Federal Register notice does not
make it clear if the Arizona rules
proposed to be approved into the SIP
include the PM2.5 increments. The EPA
must disapprove this rule if it does not
include the PM2.5 increments.
Response 1:
In the EPA’s March 18, 2015 Federal
Register notice, we proposed to approve
ADEQ rule R18–2–218 into the Arizona
SIP, and stated ‘‘ADEQ adopted the
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increments, or maximum allowable
increases, in R18–2–218—Limitation of
Pollutants in Classified Attainment
Areas.’’ 80 FR 14044, 14045, 14051. The
PM2.5 increments are included in
Section A of ADEQ rule R18–2–218. As
such, ADEQ submitted, and we are
approving into the Arizona SIP, ADEQ
rule R18–2–218 containing the PM2.5
increments.5
Comment 2:
ADEQ states that its methodology for
establishing minor NSR thresholds was
valid for all areas under ADEQ’s
jurisdiction. The CAA does not impose
strict, specific requirements on NSR
programs for minor sources, as it does
for major NSR. Rather, section
110(a)(2)(C) generally requires that each
state include a program regulating the
modification and construction of any
stationary source as necessary to assure
achievement of the NAAQS. The sizes
of minor source facilities, buildings,
structures, or installations are assessed
and compared to threshold levels to
determine whether their potential to
emit is so high as to affect the NAAQS.
Each state establishes its own threshold
levels to define the limits of its minor
NSR regulations to create an effective
pollution control strategy without also
creating unnecessary regulatory burden.
Citing the EPA’s proposed Tribal NSR
Rule, ADEQ states that in the past, the
EPA has asserted that threshold levels
are appropriate where ‘‘sources and
modifications with emissions below the
thresholds are inconsequential to
attainment and maintenance of the
NAAQS.’’ 6 In creating a federal minor
NSR program for Indian Country, the
EPA emphasized the importance of a
cost-effective plan, as well as one that
reduces the burden on sources and
reviewing authorities.
ADEQ set an adequate, yet costeffective threshold level of one half the
significant emission rate (SER) for
nonattainment areas. Just as the EPA did
in the Tribal Minor NSR Rule, ADEQ
identified the level at which a lower
threshold merely creates a larger pool of
regulated minor sources without
5 Our proposed action also points out that certain
terminology used in ADEQ’s PSD rules with respect
to the increments is not clear, and that ADEQ’s
rules contain provisions that allow for exclusions
from increment consumption for certain temporary
emissions that do not conform to the analogous
federal regulatory requirements. These issues
provided a basis for our proposed limited
disapproval of ADEQ’s PSD program. See Section
II.C.1 of the preamble at 80 FR 14051. Neither this
commenter nor any other commenter addressed
these specific issues, thus we continue to believe
that these issues are deficiencies that ADEQ must
correct for full approval of the PSD portion of the
ADEQ NSR SIP submittal, and these issues provide
a basis for our final limited disapproval.
6 71 FR 48696, 48701 (Aug. 21, 2006).
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substantially reducing emissions.
Research data provided by a consultant
was used to make an informed
determination which threshold levels
would in fact be most cost-effective,
while still achieving the goals of the
minor source program. ADEQ included
a table of the results provided by its
contractor for two potential NSR
threshold scenarios.7 Scenario 1
illustrates the impact of a minor
threshold of one half the SER and
Scenario 2 illustrates the impact of a
threshold set at one quarter the SER.
Lowering the threshold beyond one half
the SER essentially doubles the
percentage of sources regulated, which
certainly increases the state’s ability to
reach more minor sources. However,
regulating more sources does not
necessarily translate to effective
emissions reductions. Rather there is a
diminishing return on emission
reductions as the threshold level is
pushed further down to include sources
with fewer emissions.
ADEQ illustrated this statement
through a figure provided in its
comments showing a comparison of
potential threshold levels and relative
impact, by pollutant.8 The figure
compares the percent of emissions
regulated with the percent of sources
regulated at the two NSR exemption
scenarios considered by ADEQ. ADEQ
states that the slopes between the
significance level points in the graph for
each pollutant illustrate the incremental
percentage of emissions that would be
covered when the threshold level is
moved from one half to one quarter.
Both possible threshold options would
result in a relatively large percentage of
emissions from minor sources becoming
subject to regulation. However, the
average emissions covered per source
decreases significantly for all additional
sources that fall below one half of the
significant level. The disproportionate
effect between the changes in the
amount of sources relative to the change
in the amount of emissions covered
provides a firm basis for ADEQ’s
decision. The thresholds in ADEQ’s
minor NSR program meet federal
requirements without creating a system
in which the burdens of regulation
would outweigh the benefits to air
quality.
Response 2:
As noted by ADEQ, CAA section
110(a)(2) generally requires that each
state include a program regulating the
modification and construction of any
7 The EPA provided the same table in its TSD for
this action. See Table 5 of the TSD—Results of
ADEQ’s Stationary Source Distribution Analysis.
8 See ADEQ’s April 17, 2015 comment letter at 14.
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stationary source as necessary to assure
achievement of the NAAQS. While we
appreciate ADEQ’s comments on this
issue, to date, ADEQ has not provided
sufficient information about the nature,
scope and emissions that are
contributing to nonattainment in the
areas subject to ADEQ’s jurisdiction to
change our proposed determination that
ADEQ has not provided an adequate
basis for its NSR exemption thresholds
as applied in such nonattainment areas.
The implementing regulations for the
minor NSR program make clear that
SIPs must include legally enforceable
procedures that enable the
decisionmaking authority to determine
whether the construction or
modification of stationary sources will
result in a violation of applicable
portions of the control strategy or
interfere with attainment or
maintenance of the NAAQS, and that
such procedures include means by
which the decisionmaking authority can
prevent such construction or
modification if it will result in such
violation or interference. 40 CFR
51.160(a) and (b). Further, 40 CFR
51.160(e) provides:
The procedures must identify types and
sizes of facilities, buildings, structures or
installations which will be subject to review
under this section. The plan must discuss the
basis for determining which facilities will be
subject to review.
Under CAA section 110(a)(2) and 40
CFR 51.160(e), we agree with ADEQ that
States are not necessarily required to
regulate all stationary sources under the
minor NSR program. States can exempt
from review those stationary sources
with emissions that they can
demonstrate would not pose a threat to
the attainment or maintenance of the
NAAQS, thereby satisfying the
requirement in CAA section 110(a)(2)(C)
that their minor NSR program regulate
the modification and construction of
any stationary source within the areas
covered by the plan as necessary to
ensure that the NAAQS are achieved.
The EPA’s interpretation was discussed
in the proposal for our Tribal Minor
NSR Rule:
A review of several State minor NSR
programs indicated that a number of State
programs have established cutoff levels or
minor NSR thresholds, below which sources
are exempt from their minor NSR rules. We
believe that such an approach is also
appropriate in Indian country. Section
110(a)(2)(C) of the Act requires minor NSR
programs to assure that the NAAQS are
attained and maintained. Applicability
thresholds are proper in this context
provided that the sources and modifications
with emissions below the thresholds are
inconsequential to attainment and
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67323
maintenance of the NAAQS. For each
pollutant, only around 1 percent (or less) of
total emissions would be exempt under the
minor NSR program.
Review of New Sources and
Modifications in Indian Country,
Proposed Rule, 71 FR 48696, 48703
(Aug. 21, 2006); see also Review of New
Sources and Modifications in Indian
Country, Final Rule, 76 FR 38758
(finding that sources with emissions
below the NSR exemption thresholds
selected by the EPA in the Tribal Minor
NSR Rule would be inconsequential to
attainment or maintenance of the
NAAQS). We note that in our Tribal
NSR Rule, ‘‘the selected minor source
thresholds distinguish between minor
stationary sources of regulated NSR
pollutants located in nonattainment
areas and attainment areas,’’ with lower
thresholds in nonattainment areas. 71
FR at 48702; see 76 FR at 38758
(finalizing thresholds as proposed).
In our proposed action on ADEQ’s
NSR SIP submittal, we found
deficiencies in the basis ADEQ provided
for determining which sources would be
subject to review under its minor NSR
program under 40 CFR 51.160(e),
applying the statutory and regulatory
standard discussed above. 80 FR at
14049. These deficiencies provided a
basis (among other bases) for our
proposed limited disapproval of ADEQ’s
minor NSR program. As stated in our
proposal, we found ADEQ’s general
approach to meeting 40 CFR 51.160(e)
acceptable. However, we proposed a
limited disapproval for three aspects of
ADEQ’s minor NSR program under 40
CFR 51.160(e): The adequacy of ADEQ’s
NSR exemption thresholds for
nonattainment areas; certain exemptions
for agricultural and fuel burning
equipment; and the lack of any basis for
the PM2.5 NSR exemption threshold in
any areas under ADEQ’s jurisdiction.
None of the comments on our proposal
addressed our proposed limited
disapprovals related to agricultural and
fuel burning equipment exemptions or
the missing explanation in the submittal
for the PM2.5 NSR exemption threshold.
As such, we continue to determine that
these two issues warrant a limited
disapproval, and further consider
ADEQ’s comments as they apply to the
basis provided for ADEQ’s NSR
exemption thresholds for pollutants in
nonattainment areas.9
ADEQ’s comments focus largely on
the argument that expanding its minor
9 We note that the reasoning the EPA provides in
these responses to comments concerning NSR
exemption thresholds in nonattainment areas
would apply equally to our review of the basis for
NSR exemption thresholds for PM2.5 in
nonattainment areas.
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NSR program to cover even smaller
sources (i.e., sources with emissions of
approximately 1⁄4 of the PSD significant
emission rates) would result in
diminishing returns on emission
reductions. ADEQ argues that while
more emissions would be regulated
under such an approach, in some
instances, this would result in
significantly more stationary sources
becoming subject to the program. In the
case of VOC, for example, the
percentage of all stationary sources
regulated would approximately double
from 8% to 16%. ADEQ appears to
reason that while ADEQ would be able
to regulate more emissions with such a
lower threshold, the types of projects
brought into the program would be
smaller and less likely to be regulated in
a way to achieve useful emission
reductions. However, as discussed
above, our determination of whether a
minor NSR program is sufficient to meet
CAA SIP requirements is based on
whether the State has provided an
adequate basis that the exempt
emissions do not need to be reviewed to
ensure attainment and maintenance of
the NAAQS in the particular geographic
areas covered by the program because
they are inconsequential to attainment
or maintenance, considering the
particular air quality concerns in such
areas. The information provided by
ADEQ to date, including the amount of
sources regulated as compared with the
volume of emissions per such source,
does not demonstrate that the adopted
thresholds are those necessary to assure
attainment and maintenance of the
NAAQS. For example, if an area
happens to have a large volume of
sources in a particular source category
that are typically minor sources but emit
the pollutants that contribute to
nonattainment, then regulation of those
sources may be necessary to assure
attainment and maintenance of the
NAAQS in that area. The thresholds
established in the Tribal NSR Rule
exempted around 1 percent of total
emissions, while exempting from 42
percent to 76 percent of sources,
depending on the pollutant. 76 FR at
68758.
We recognize that the reference that
the EPA made in its proposed action to
ADEQ’s submittal not providing a clear
basis for concluding that its NSR
exemption thresholds would ensure that
a ‘‘sufficient percentage of minor
sources’’ would be subject to review in
nonattainment areas, rather than
referring to a ‘‘sufficient percentage of
minor source emissions,’’ was imprecise
and may have led to confusion about the
nature of the EPA’s concern. As such,
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we are clarifying that our disapproval is
related to ensuring that ADEQ’s NSR
program exempts from review only
those sources with emissions that do not
pose a threat to attainment and
maintenance of the NAAQS because
they are inconsequential to attainment
or maintenance. The particular
percentage of stationary sources that are
being regulated would generally not be
an adequate basis under 40 CFR
51.160(e) for determining the sizes and
types of stationary sources that will be
subject to NSR review as necessary to
ensure compliance with CAA section
110(a)(2) and 40 CFR 51.160(a) and (b).
As noted, the Tribal NSR Rule exempted
as many as 76 percent of the sources of
a pollutant, but required review of about
99% of total emissions. 76 FR at 38758.
In this case, ADEQ has not shown that
the emissions exempt from its NSR
program will not threaten attainment
and maintenance of the NAAQS in its
nonattainment areas. Accordingly, after
consideration of ADEQ’s comments, we
continue to find that a limited
disapproval of ADEQ’s program under
40 CFR 51.160(e), as it pertains to the
NSR exemption threshold for
nonattainment areas, is necessary.
As stated in our proposal, in
addressing this deficiency, ADEQ does
not necessarily have to consider overall
lower NSR exemption thresholds in
nonattainment areas, see 80 FR 14049 n.
13, although, as noted, the Tribal NSR
Rule established lower thresholds for
nonattainment areas. 76 FR at 38758.
For example, ADEQ could provide
further analysis to demonstrate that the
adopted thresholds are protective of the
NAAQS in nonattainment areas, or
ADEQ could consider a different
approach, such as requiring minor
sources in nonattainment areas subject
to a pre-existing SIP requirement for the
nonattainment pollutant, or its
precursors, to be subject to review under
ADEQ’s registration program. In
addressing this limited disapproval
issue, we recommend that ADEQ focus
its consideration on the contribution
that emissions from minor stationary
sources with emissions below its
currently adopted NSR exemption
thresholds are expected to make with
respect to attainment and maintenance
of the NAAQS in nonattainment areas.
In addition, we wish to clarify that
while the EPA’s proposed rulemaking
for the Tribal NSR program discussed
cost-effectiveness and attempted to
strike a ‘‘balance between
environmental protection and economic
growth,’’ it also recognized the need for
exemption thresholds to ensure ‘‘that
sources with emissions below the
proposed minor NSR thresholds will be
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inconsequential to attainment and
maintenance of the NAAQS.’’ 71 FR at
48703. See also 76 FR at 38758. The
EPA recognized the overarching need
for standards stringent enough to ensure
NAAQS protection, and agreed to
‘‘consider changing the minor NSR
thresholds as appropriate’’ to ensure
that they are sufficiently protective. 76
FR at 38759. Thus, cost-effectiveness is
not a relevant criterion for determining
whether a minor NSR program’s
exemption thresholds will assure
attainment and maintenance of the
NAAQS, and the test is not whether the
benefits of the program outweigh the
burdens of regulation, but whether the
state’s program meets the requirement
in CAA section 110(a)(2)(C) to ‘‘assure
that national ambient air quality
standards are achieved.’’
Comment 3:
SRP and ADEQ state that the EPA
may not substitute its policy preferences
for ADEQ’s in proposing to disapprove
ADEQ’s minor NSR program with
respect to nonattainment areas. There
are no regulatory provisions or CAA
statutory provisions that specify that a
State must regulate a ‘‘sufficient
percentage’’ of minor sources in
nonattainment areas. The EPA’s
objection appears to be based on its own
policy preferences, and the EPA simply
lacks authority to substitute its
preferences for those of the State. The
EPA points to no flaws in the reasoning
behind the analysis, nor does the EPA
provide an alternative analysis
demonstrating that modifications or
construction of minor sources of a
certain size or type have caused air
quality concerns within ADEQ’s
jurisdiction.
Further, each state, region, and
control area encounters unique
circumstances that contribute to air
quality issues, as well as the strategies
necessary to comply with the
requirements of the CAA. At page 14049
n. 12 of the proposal, which
accompanied a generalized comparison
to other states, the EPA referenced
threshold levels for Sacramento,
California. It is erroneous for the EPA to
compare Arizona’s minor NSR program
with that of California, due to the
extraordinary severity of the
nonattainment problems in California.
The EPA’s implication that ADEQ
should create a minor source NSR
program that looks and functions like
other states, and particularly California,
is an improper basis for disapproval.
ADEQ also asserts that the EPA has
advanced no reason for concluding that
ADEQ’s analysis is any less valid for
nonattainment areas than it is for
attainment areas.
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Response 3:
Contrary to the commenters’
assertions, our proposed limited
disapproval of ADEQ’s program
concerning the NSR exemption
threshold for nonattainment areas was
not based on a policy preference by the
EPA to regulate ‘‘more’’ sources in
nonattainment areas. As explained in
detail in our response to comment 2, the
EPA’s proposed disapproval based on
40 CFR 51.160(e) stemmed in part from
the lack of sufficient justification in
ADEQ’s NSR submittal to support its
chosen thresholds for coverage of the
minor NSR program in nonattainment
areas as required by 40 CFR 51.160(e)
and CAA section 110(a)(2). It is the
State’s obligation to demonstrate that
emissions from sources exempt under
its chosen NSR exemption threshold
will not pose a threat to attainment or
maintenance of the NAAQS. We found
at the time of our proposal that ADEQ
had not done so with respect to the NSR
exemption thresholds in nonattainment
areas, and we continue to find that this
is the case.10
Our March 18, 2015 proposed action
made clear that ADEQ could consider
various options for addressing this
deficiency and we did not mandate that
ADEQ adhere to a particular policy
choice of the EPA in this regard. 80 FR
at 14049 and n. 13. See also response to
comment 2. The EPA agrees with the
commenters that ADEQ has the
discretion to determine the types and
sizes of sources that need to be
regulated under its NSR program to
attain and maintain the NAAQS. But
ADEQ, like other States, must provide a
reasoned basis for the scope of
emissions (and stationary sources of
such emissions) regulated under its
program that demonstrates that
exemption of such emissions from NSR
review will not threaten the attainment
and maintenance of the NAAQS in
nonattainment areas.
Air quality concerns in nonattainment
areas differ from those in attainment
areas and thus the measures necessary
to attain and maintain the NAAQS may
be more stringent in nonattainment
areas than in attainment areas. When an
area is already in nonattainment with a
NAAQS for a particular pollutant, it is
logical to conclude that relatively low
levels of emissions increases of that
nonattainment pollutant may well
contribute to nonattainment and
interfere with achievement of the
NAAQS, while a source with the same
10 We addressed the comment concerning the
reference in the EPA’s proposal to regulation of a
‘‘sufficient percentage of minor sources’’ in our
response to comment 2.
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level of emissions in an attainment area
may pose little threat to maintaining the
NAAQS. Thus, SIPs may need to
provide greater or more detailed
justification for exempting smaller
sources of emissions from NSR review
in nonattainment areas, depending on
the particular air quality concerns in the
area at issue. Indeed, as noted, the
EPA’s Tribal NSR Rule established more
stringent thresholds for minor NSR in
nonattainment areas, in most cases at
50% of the thresholds for attainment
areas. 76 FR 38758 (Table).
ADEQ’s jurisdiction covers both
attainment and nonattainment areas,
and ADEQ’s analysis supporting its NSR
exemption thresholds made no
distinction between these types of areas
nor did it provide additional
information to support the thresholds in
nonattainment areas under ADEQ’s
jurisdiction. For example, ADEQ’s
analysis indicated that it would exempt
approximately 65% of CO emissions,
78% of SO2 emissions, and 40% of VOC
emissions from review under its NSR
program. By comparison, the EPA’s
analysis for the Tribal Minor NSR
program, cited by ADEQ in its analysis,
demonstrated that the EPA anticipated
exempting around 1% of stationary
source emissions from review under
NSR, based on National Emissions
Inventory data for all stationary point
source emissions in both attainment and
nonattainment areas. As such, ADEQ
did not provide enough detail to
demonstrate that NSR review of
emissions from the exempted sources
would not be necessary for attainment
and maintenance of the NAAQS in
nonattainment areas because sources
below the thresholds would be
‘‘inconsequential to attainment or
maintenance of the NAAQS.’’ 76 FR at
38758. Accordingly, we found that
ADEQ had not provided an adequate
basis under 40 CFR 51.160(e) for its NSR
program exemption thresholds as they
pertain to nonattainment areas.
In the case of attainment areas, the
EPA is approving the basis provided by
ADEQ for its selected NSR exemption
thresholds. We find it reasonable to
conclude, based on the information and
analysis provided by ADEQ, that
expanding the NSR program to cover
more emissions in areas that are already
attaining the NAAQS will ensure that
those areas will continue to attain and
maintain the NAAQS. We cannot reach
the same conclusion for nonattainment
areas where the minor sources in a
particular nonattainment area may, in
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67325
fact, significantly contribute to
nonattainment in that area.11
The reference in our proposal to the
approaches taken by other permitting
programs, including a California agency,
with respect to NSR exemption
thresholds in nonattainment areas is not
an indication that the EPA believes that
such approaches or thresholds are
required for ADEQ, but simply
information showing that it is common
for agencies in nonattainment areas to
find it necessary to regulate more
emissions. In providing this
information, the EPA was not suggesting
that there was a particular percentage of
emissions that should be regulated, but
that other nonattainment areas have
found it necessary to exempt fewer
emissions from their programs
(including Maricopa County, Arizona,
Colorado, and the EPA’s Tribal Minor
NSR rule, which were also referenced in
our proposed action).12 It was ADEQ’s
lack of demonstration that its selected
thresholds are adequate to ensure
attainment and maintenance of the
NAAQS in light of the specific air
quality issues in the nonattainment
areas under its jurisdiction that led to
our proposed disapproval.
In sum, the EPA did not conclude that
ADEQ’s NSR exemption thresholds are
necessarily deficient, or suggest that
some other agency’s threshold must be
applied. The EPA’s proposed limited
disapproval for ADEQ’s NSR exemption
thresholds for nonattainment areas
under 40 CFR 51.160(e) relates only to
the fact that ADEQ had not provided an
adequate basis for the thresholds that
were set for these areas. As discussed in
response to comment 2, our final
limited disapproval is also based on this
finding.
Comment 4:
ADEQ submitted comments related to
the EPA’s proposed limited disapproval
of ADEQ’s NSR SIP submittal for its use
of the term ‘‘proposed final permit.’’
ADEQ explains that the purpose of
allowing sources to construct after
issuance of a proposed final permit—the
version of the permit that ADEQ
11 We acknowledge that ADEQ’s analysis
explained that sources that contribute to
noncompliance with the SO2 NAAQS are welldefined, large industrial sources already subject to
the permitting program. However, ADEQ’s analysis
did not provide information or details to support
these statements or otherwise provide information
sufficient to allow the EPA to reach the conclusion
that the NSR exemption thresholds selected by
ADEQ exempt only those stationary sources with
emissions that do not pose a threat to attainment
and maintenance of the NAAQS in nonattainment
areas.
12 There was a typographical error in our FR
notice that referenced a ‘‘Table 3,’’ when there was
not a Table 3 in the Federal Register notice. The
notice should have referenced Table 3 of our TSD.
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forwards to the EPA for review under
the title V program for title V sources—
is to ensure that Arizona’s unitary
permit program does not place
restrictions on Arizona industries that
they would not face in jurisdictions
with binary permitting programs. Under
a binary program, separate permits are
issued to construct and operate, and
only permits to operate are subject to
the EPA’s review under title V. Thus a
source in a jurisdiction with a binary
program ordinarily would have the
authority to proceed with construction
under a construction permit before the
EPA’s review of the title V permit or
permit revision occurred.
ADEQ specifically takes issue with
the EPA’s proposed determination that
the program does not provide ADEQ
with clear authority to prevent
construction or modification before it
issues a final decision on the request for
authority to construct as is required per
40 CFR 51.160(a) and (b). 80 FR at
14048. ADEQ states that this objection
is invalid for two reasons. First, 40 CFR
51.160(b) does not require a minor NSR
program to include authority to prevent
construction ‘‘before [an agency] issues
a final decision.’’ It requires only that
the program include procedures by
which the agency ‘‘will prevent . . .
construction or modification.’’ The
Arizona program manifestly includes
such procedures: ADEQ can prevent
construction of a source that threatens
the NAAQS or control strategy by
denying the permit application before a
proposed final permit is issued. No
more is required. Second, by ‘‘final’’ the
EPA appears to mean subject to
administrative and judicial review. See
80 FR at 14053. The EPA maintains that
although ADEQ has issued guidance
stating that it ‘‘will treat [a] proposed
final permit as a final, appealable
agency action,’’ the rule itself is not
sufficiently clear to be fully approved.
80 FR at 14048.
The EPA, however, has
mischaracterized ADEQ’s guidance.
ADEQ did not state that it ‘‘will treat’’
proposed final permits’’ as appealable
agency actions. Rather, the Department
stated that it ‘‘must’’ do so. Under
Arizona administrative law, an
‘‘appealable agency action’’ is defined as
‘‘an action that determines the legal
rights, duties or privileges of a party.’’
A.RS. § 41–1092(3). Because a proposed
final permit or permit revision under
the revised rules determines the
applicant’s right to construct, it must be
treated as an appealable agency action
separate from the issuance of the final
permit or permit revision. ADEQ must
therefore issue a notice of appealable
agency action under A.R.S § 41–1092.03
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for both the proposed final permit or
permit revision, as well as the final
permit or permit revision.
ADEQ states that there is no
ambiguity under Arizona law (which
mirrors the administrative law of most
states). Under the clear terms of ADEQ’s
regulations, a proposed final permit
confers a right to construct and is
therefore appealable.
Response 4:
The EPA appreciates ADEQ’s
comments concerning the question of
whether ADEQ’s NSR program provides
for the issuance of a final NSR decision
prior to sources being allowed to begin
construction. Our proposed action on
ADEQ’s NSR SIP submittal stated that
certain sources were allowed to begin
construction upon issuance of a
proposed final permit, and that we
believed that ADEQ’s regulations were
ambiguous as to whether issuance of a
‘‘proposed final permit’’ was a final NSR
decision. As a result, we proposed to
find that ADEQ’s NSR SIP submittal did
not satisfy several related CAA
requirements, and those deficiencies
provided some of the bases for our
proposed limited disapproval of ADEQ’s
PSD program, NA–NSR program, and
minor NSR program.
The EPA continues to believe that the
CAA and its implementing regulations
require that PSD and NA–NSR programs
must provide for the issuance of final
NSR permit decisions imposing permit
conditions necessary to ensure
compliance with the applicable NSR
program requirements before sources
subject to those programs may begin
construction. We also interpret the CAA
to require that PSD programs provide an
opportunity for judicial review of PSD
permit decisions. See generally CAA
sections 110(a)(2)(C), 165, 172(c)(5),
173; 40 CFR 51.165(a)(2),
51.166(a)(7)(iii), 166(q)(2)(vii).13
The CAA and its implementing
regulations also require that minor NSR
programs provide for legally enforceable
procedures including means by which
the Agency responsible for final
decisionmaking on an application for
approval to construct or modify has
authority to prevent such construction
or modification if such construction or
modification will result in a violation of
applicable portions of the control
strategy or will interfere with the
attainment or maintenance of a NAAQS.
CAA section 110(a)(2)(C), 40 CFR
13 The notice for our proposed action noted
discussed the fact that we interpret the CAA to
require an opportunity for judicial review of a
decision to grant or deny a PSD permit, whether
issued by the EPA or by a State under a SIPapproved or delegated PSD program. See 80 FR
14053.
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51.160(a)–(b). We continue to believe
that decisionmaking authorities must
make final NSR decisions for minor
sources, as well as major sources,
subject to their NSR program prior to
allowing sources to begin construction
in order to satisfy this requirement that
the plan provide for such ‘‘legally
enforceable procedures.’’ 14
The EPA acknowledges the
interpretation that ADEQ recently
provided to clarify that ADEQ must treat
‘‘proposed final permits’’ as ‘‘appealable
agency actions,’’ which are defined
under Arizona law as actions that
‘‘determine[] the legal rights, duties or
privileges of a party’’ pursuant to A.R.S.
section 41–1092(3). ADEQ
Memorandum—Proposed Final Permits
to Be Treated as Appealable Agency
Actions, dated February 10, 2015. ADEQ
also provided additional clarifications
after the end of the public comment
period, specifically stating that
‘‘[p]roposed final permits are
enforceable at the time that the permits
are issued.’’ 15 After further review of
this issue and consideration of ADEQ’s
comments and interpretation of its
regulations, and in reliance on ADEQ’s
stated interpretation of its regulations,
we have determined that ‘‘proposed
final permits’’ constitute final, binding,
and enforceable NSR decisions by
ADEQ that are issued before sources
may begin construction and which are
immediately subject to review.
We therefore conclude that ADEQ’s
NSR program provides, in all instances,
for the issuance of a final NSR decision
prior to sources being allowed to begin
construction, thus this issue no longer
provides a basis for our limited
disapproval of the ADEQ NSR SIP
submittal. Specifically, we agree that:
(1) ADEQ’s NSR program provides
ADEQ with clear authority to prevent
construction or modification before it
issues a final decision on the request for
authority to construct as required by 40
CFR 51.160(a) and (b); (2) ADEQ’s PSD
14 We agree that ADEQ has authority to decline
to issue a proposed final permit for a particular
source if it finds that the emissions from such
source would result in a violation of applicable
portions of the control strategy or would interfere
with the attainment or maintenance of the NAAQS.
However, in cases where a permit requirement
would be needed to ensure compliance with the
NAAQS for a particular source, if such a permit
decision were not final, binding and enforceable at
the time construction of the source was authorized,
there would not be a legally enforceable procedure
in place to prevent construction of that source in
a manner that could violate the NAAQS as required
by 40 CFR 51.160.
15 See June 8, 2015 email ‘‘Clarification of ADEQ’s
Comments on the EPA’s Proposed Action’’ from
Eric C. Massey, Air Quality Division Director at
ADEQ to Lisa Beckham, Air Permits Office, EPA
Region 9.
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and NA–NSR programs do not allow a
source to begin construction prior to
issuance of a final PSD or NA–NSR
permit; and (3) ADEQ’s PSD program
satisfies the CAA requirement for an
opportunity for judicial review of PSD
permit decisions. We are also including
the clarifying memorandum from ADEQ
dated February 10, 2015 as additional
material in our final rule.
However, we continue to recommend
that ADEQ revise its regulations to
clarify that a proposed final permit is a
final, enforceable, and appealable NSR
permit decision in order to minimize
confusion among the public and the
regulated community. We reiterate that
such a revision is not a requirement for
approval of ADEQ’s NSR program into
the SIP.
Comment 5:
ADEQ disagrees with the EPA’s
proposed limited disapproval of ADEQ’s
program under 40 CFR 51.160(a)(2) and
(b)(2) because rule R18–2–334 does not
require ADEQ to evaluate whether the
project under review will interfere with
attainment or maintenance of the
NAAQS in all cases, and instead allows
sources to apply reasonably available
control technology (RACT) in lieu of
such an evaluation. ADEQ also takes
issue with the EPA’s determination that
R18–2–334(E) allows for too great of
Director’s discretion when determining
when to require a NAAQS analysis.
ADEQ believes this objection is
fundamentally at odds with the EPA’s
own approach to air quality impact
analysis (AQIA) in the Tribal Minor
NSR Rule. The tribal rule initially
imposes a case-by-case control
technology requirement, but gives the
‘‘reviewing authority’’ (which may be
the EPA or a tribe with delegated
authority) discretion to conduct an
AQIA. 40 CFR 51.154(c) and (d). ADEQ
also cites to the EPA’s response to
comments for the Tribal Minor NSR
Rule where the EPA indicated that
reviewing authorities implementing the
Tribal Minor NSR Rule should be
allowed the discretion to determine
when an AQIA might be needed from
the applicant. See 76 FR 38761. Further,
ADEQ argues that ADEQ’s rule is
actually stricter and confers less
discretion than the EPA’s Tribal Minor
NSR Rule. ADEQ must consider the
source’s emission rates, location of
emission units within the facility and
their proximity to ambient air, the
terrain in which the source is or will be
located, the source type, the location
and emissions of nearby sources, and
background concentration of regulated
minor NSR pollutants. By comparison,
the criteria in the EPA’s Tribal Minor
NSR Rule states that if the reviewing
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authority has reason to be concerned
that the construction of your minor
source or modification would cause or
contribute to a NAAQS or PSD
violation, it may require the source to
conduct and submit an AQIA.
(emphasis added). ADEQ believes that
this comparison demonstrates that
ADEQ’s discretion is far from being ‘‘too
great;’’ ADEQ’s discretion under R18–2–
334(E) is minimal.
Finally, ADEQ disagrees with the
EPA’s determination that R18–2–
334(C)(1)(a)–(b) ‘‘appears to allow
sources with lower levels of emissions
to avoid both substantive NAAQS
review and RACT requirements’’ and
that the state’s minor NSR Program
therefore fails to ensure ‘‘that all sources
subject to review under its NSR program
will not interfere with attainment or
maintenance of the NAAQS.’’ This
objection is incorrect for two reasons.
First, R18–2–334(C)(1)(a)–(c) represents
ADEQ’s reasonable judgment that the
imposition of RACT on units with low
emissions (20 percent of the source
threshold) within a source otherwise
subject to RACT is not a cost-effective
means of protecting the NAAQS.
Second, this provision does not, as the
EPA contends, allow sources to avoid
substantive NAAQS review. This
provision clearly applies solely to
sources that elect to comply with minor
NSR through installation of RACT.
These sources remain subject to the
obligation to conduct an AQIA on the
Director’s request under R18–2–334(E),
and there is nothing in the rule to
suggest that emissions from units below
the R18–2–334(C)(1)(a)–(b) thresholds
would be excluded from the AQIA.
SRP also disagrees with the EPA’s
proposed disapproval based on the
EPA’s finding that the Director’s
discretion under R–18–2–334(E) was too
great, and asserts that the EPA’s
proposed action conflicts with the
EPA’s policy on approving director
discretion provisions. SRP argues that
the Director’s discretion in this regard is
sufficiently specific in identifying when
it applies and what criteria are to be
applied and that therefore the relevant
provisions are fully approvable into the
Arizona SIP.
Response 5:
Upon review of ADEQ’s comments,
including clarifications regarding how
the provisions of R18–2–334(E) apply,
and in reliance on ADEQ’s stated
interpretation of its regulations, we no
longer find that ADEQ’s minor NSR
program does not satisfy 40 CFR
51.160(a)(2) and (b)(2) based on the
view that rule R18–2–334 does not
require ADEQ to evaluate whether all
sources subject to review under that rule
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67327
may interfere with attainment or
maintenance of the NAAQS.16 After the
close of the public comment period,
ADEQ provided additional
clarifications, stating that it interprets
R18–2–334 to ‘‘require[] ADEQ to
consider the air quality impacts of a
project, using the criteria established in
R18–2–334(E)(1) through (6), in each
instance where the applicant has not
submitted an AQIA under R18–2–
334(C)(2).’’ 17 ADEQ has explained that
it interprets R18–2–334 to require ADEQ
to consider, for all sources subject to
R18–2–334, whether there is reason to
believe that the source could interfere
with attainment or maintenance of the
NAAQS. Some sources will comply
with this requirement by submitting an
AQIA under R18–2–334(C)(2). All other
sources will be reviewed by ADEQ
using the criteria in R18–2–334(E), and
those criteria will be used to determine
whether a more formal AQIA is
necessary. That is, ADEQ does not have
discretion to determine in which
instances it will or won’t apply the
criteria in R18–2–334(E)(1) through (6);
instead, ADEQ interprets its regulations
to require that ADEQ apply such criteria
for all sources subject to R18–2–334
where the applicant has not submitted
an AQIA. Accordingly, this issue does
not provide a basis for our final limited
disapproval.
We would also like to clarify that our
proposed limited disapproval was not
specifically related to ADEQ’s choice to
apply RACT for some sources subject to
R18–2–334 while allowing certain
smaller sources subject to the rule to
avoid RACT. Rather, our proposed
disapproval action related only to what
we understood to be the potential for
sources subject to R18–2–334 to apply
RACT (or to proceed without applying
RACT for certain sources with lower
emissions) in lieu of any review by
ADEQ of the source’s potential impacts
on the NAAQS under the ADEQ NSR
program. As discussed immediately
above, this is no longer a concern as
ADEQ has explained that it must review
all sources subject to R18–2–334 to
consider whether the source could
interfere with attainment or
maintenance of the NAAQS.
Given our revised determination on
this issue, it is not necessary to address
all the arguments made by SRP
concerning this issue, but we note that
we agree with SRP (and ADEQ) that the
16 The EPA’s proposal inadvertently referred to
R18–2–334(G) instead of R18–2–334(E) when
describing this issue.
17 See June 8, 2015 email ‘‘Clarification of ADEQ’s
Comments on EPA’s Proposed Action’’ from Eric C.
Massey, Air Quality Division Director at ADEQ to
Lisa Beckham, Air Permits Office, EPA Region 9.
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criteria ADEQ will be applying when
making its determination under R18–2–
334(E) do not afford undue discretion to
the Director.
Comment 6:
One commenter takes issue with the
EPA’s statements that finalizing its
proposed limited disapproval would
trigger an obligation for the EPA to
promulgate a Federal Implementation
Plan (FIP) and impose CAA sanctions if
ADEQ does not correct the alleged
deficiencies within 18 to 24 months.
The commenter asserts that this
contradicts the statutory limitations on
the EPA’s SIP-action authority under the
CAA.
Section 110(c)(1) provides the EPA
the authority to promulgate a FIP in
only two circumstances: (1) The State
failed to make a required SIP
submission, or (2) the Administrator
disapproves a SIP submission in whole
or part. Section 179(a) contains similar
conditions for imposing sanctions in
nonattainment areas. The commenter
claims that the EPA interprets its
authority to impose a FIP or sanctions
only when the disapproval relates to a
mandatory SIP submission. In support
of this assertion, the commenter cites to
one action from Region 6 of the EPA
that disapproved elements of the Texas
Commission of Environmental Quality’s
(TCEQ’s) major NSR rule to address the
2002 NSR changes (‘‘[t]he provisions in
these submittals . . . were not
submitted to meet a mandatory
requirement of the Act. Therefore, this
final action to disapprove . . . the State
submittals does not trigger a sanction or
Federal Implementation Plan clock.’’).
The commenter concludes that such an
interpretations of Section 110(c)(1) and
Section 179(a) are reasonable because
the EPA would otherwise, for example,
be required to promulgate a FIP for
disapproving a State’s request to include
odor provisions in its SIP that are
unrelated to NAAQS compliance.
The commenter further states that
ADEQ’s current SIP contains fullyapproved, minor NSR and major NSR
permitting programs. As such, the
State’s requested SIP revisions
addressed in the EPA’s proposed action
are not mandatory. The commenter
further argues that the EPA referenced
no information suggesting that it made
a formal call for plan revision as
required by Section 110(k)(5) of the
CAA related to its proposed limited
disapproval of ADEQ’s NSR SIP
submittal. As such, in general, Arizona
is not under a mandatory duty to revise
its existing SIP with regards to its NSR
programs. The commenter argues that it
is inappropriate for the EPA to replace
a fully approved-SIP with a program
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that it alleges does not fully satisfy CAA
requirements by using an approach that
triggers the FIP clock and potentially
imposes sanctions. ADEQ could
withdraw the requested SIP submission
and face no threat of a FIP or sanctions.
Response 6:
The EPA disagrees with the
commenter’s statement that the EPA’s
limited disapproval in this action does
not trigger a FIP clock or potential
sanctions, and disagrees that the EPA’s
action is inappropriate in light of this
result.
The EPA continues to believe that
limited disapproval of ADEQ’s NSR SIP
submittal triggers an obligation to
promulgate a FIP unless ADEQ corrects
the identified deficiencies and the EPA
approves the related SIP revisions
within 2 years, and that sanctions
would be triggered by the EPA’s limited
disapproval of ADEQ’s NA–NSR
program revisions based on deficiencies
related to CAA title I, Part D
requirements for nonattainment areas if
ADEQ fails to remedy the identified
deficiencies so that the EPA can
approve the revisions into the SIP before
the sanctions apply. As stated in the
notice for our proposal, we intend to
work with ADEQ to remedy these
deficiencies in a timely manner.
Importantly, we note that the EPA’s
other option would have been a full
disapproval of ADEQ’s NSR SIP
submittal, which would have required
ADEQ to continue to implement the
outdated rules in its SIP while also
implementing its newer rules under
State law. This would require ADEQ
and permit applicants to continue to
implement and comply with two
redundant and sometimes inconsistent
sets of NSR rules, contrary to ADEQ’s
request to update its SIP to incorporate
its newer rules and remove its older,
outdated rules.
Pursuant to section 110(c)(1) of the
CAA, the EPA must promulgate a FIP
within two years after our final limited
disapproval of ADEQ’s NSR SIP
submittal, unless ADEQ adequately
corrects the identified deficiencies and
the EPA approves the corrected program
into the Arizona SIP before that time.
The commenter argues that the FIP
clock applies only when a disapproval
relates to a mandatory SIP submission,
and asserts that the submitted revisions
are not mandatory because ADEQ’s
existing SIP contains fully-approved
minor and major NSR programs, and the
revisions were not developed in
response to a SIP call under CAA
section 110(k)(5). The EPA disagrees
with the commenter’s argument.
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Even if the EPA has not issued a SIP
call under CAA section 110(k)(5),18 a
FIP is generally required under CAA
section 110(c)(1) when the EPA
disapproves a plan submission, unless
the State adequately corrects the basis
for the disapproval and the EPA
approves a corrected SIP submittal in a
timely manner, or the EPA determines
that an existing plan is in place that
meets the relevant CAA requirements.
See AIR v. EPA, 686 F.3d 668, 675–76
(9th Cir. 2012). We note that NSR
programs consistent with CAA
requirements are required elements of a
SIP. CAA §§ 110(a)(2)(C), 161, 165,
172(c)(5), 173; 40 CFR 51.160–51.166.
In this case, the EPA cannot rely on
provisions in the existing Arizona SIP to
adequately address the deficiencies with
the ADEQ NSR SIP submittal that we
identified in our proposed rule and
which form the basis for our final
limited disapproval. ADEQ must
address these deficiencies in a timely
manner in order to avoid the
requirement for the EPA to promulgate
a FIP. As we made clear in the notice
for our proposed action,19 ADEQ’s NSR
SIP submittal included the removal of
most of ADEQ’s existing NSR program
elements from the Arizona SIP.20 Upon
our final action,21 there will not be an
‘‘existing plan’’ that could potentially
satisfy the specific CAA NSR
requirements that the EPA has
determined are not satisfied in ADEQ’s
NSR SIP submittal.22 In general, the
18 There is no existing SIP call under CAA section
110(k)(5) that specifically pertains to the
deficiencies with ADEQ’s NSR program.
19 See 80 FR at 14046–14047.
20 See October 29, 2012 ADEQ submittal at 4 and
Table 2–1; see also ADEQ’s February 23, 2015
supplemental submittal at 3–7.
21 We note that the EPA’s limited approval/
limited disapproval of ADEQ’s NSR SIP submission
allows ADEQ to use its updated NSR rules, to the
extent the EPA is granting limited approval in this
action, to carry out the NSR program. Continuing
to leave old and outdated Arizona NSR SIP
elements in place would not be consistent with
ADEQ’s SIP submission and request to the EPA, and
would require ADEQ and permit applicants to
implement and comply with two redundant and
sometimes inconsistent sets of NSR rules. Whether
ADEQ could withdraw its ADEQ NSR SIP submittal
and what consequences would ensue is not
relevant; ADEQ has not done so.
22 The commenter asserts that when the EPA
disapproved elements of the Texas Commission of
Environmental Quality’s (TCEQ’s) major NSR rule,
the EPA found that the provisions in the submittals
were not submitted to meet a mandatory
requirement of the Act and thus noted that its final
action to disapprove the State submittals did not
trigger a sanction or FIP clock. The TCEQ example
is inapposite, however, because our action on the
ADEQ NSR SIP submittal approves rules with
identified deficiencies into the SIP where the action
in Region 6 did not. The EPA found the deficiencies
in the TCEQ submission to be separable and issued
partial disapprovals for them, resulting in a SIP that
did not contain the deficiencies. In that situation,
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EPA’s role in reviewing SIP submittals,
including the ADEQ NSR SIP submittal,
is to defer to the State’s choices as to
how to implement CAA requirements
provided those choices are consistent
with the pertinent CAA requirements,
whether or not a program submittal is
considered ‘‘mandatory.’’ The EPA’s
limited approval/limited disapproval
action on ADEQ’s NSR SIP submittal,
including ADEQ’s request to remove old
and largely outdated NSR provisions
from the Arizona SIP, allows us to
approve into the SIP the State’s choice
to adopt and implement its updated and
strengthened NSR program while giving
ADEQ time to remedy certain
deficiencies that cause us not to grant
full approval of the submittal.
Furthermore, even if one assumed
arguendo that these older Arizona NSR
provisions were not being removed from
the Arizona SIP, the commenter has not
explained how the old NSR provisions
would, in fact, meet the NSR
requirements for which the EPA has
found specific deficiencies in ADEQ’s
updated NSR program.23
Similarly, for deficiencies related to
CAA title I, Part D requirements for
nonattainment areas, final limited
disapproval of ADEQ’s NSR SIP
submission will result in the application
of sanctions under CAA section 179
unless the deficiencies have been
adequately corrected before the
sanctions apply.
As with its arguments concerning the
FIP clock, the commenter argues that
CAA sanctions apply only when a
whether the deficiencies that were disapproved
were contained in ‘‘mandatory’’ SIP submissions
was relevant because if they were ‘‘mandatory’’
then disapproval likely would have resulted in
TCEQ needing to submit another plan revision to
replace the disapproved plan elements. But because
the deficiencies were found to be separable and
contained in plan elements that were not
mandatory, the EPA issued a partial disapproval of
those elements, keeping the deficiencies out of the
approved SIP and with TCEQ under no obligation
to submit another SIP revision because the
disapproved plan elements were not ‘‘mandatory.’’
In contrast, the provisions including the identified
deficiencies in the ADEQ NSR SIP submittal are
integrated parts of the submittal and are being
approved into the SIP as part of our limited
approval/limited disapproval action, so whether the
ADEQ plan revisions containing the deficiencies are
‘‘mandatory’’ is not relevant and is not a basis to
avoid a FIP duty or sanctions.
23 ADEQ noted in its submittal that its existing
SIP-approved program did not include the PM10
increments, the NO2 increments, or updates related
to the ‘‘WEPCO’’ rule for determining when a
project is a modification at an electric generating
unit. In addition, ADEQ stated that a basis for its
revisions to its minor NSR program was to correct
the deficiency that its program lacked explicit
procedures designed ‘‘to assure that national
ambient air quality standards are achieved,’’ as
required by section 110(a)(2)(C) of the Act. See
Appendix A of ADEQ’s October 29, 2012 SIP
submittal at 1546 and 1547.
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disapproval relates to a mandatory SIP
submission, and asserts that the
submitted revisions are not mandatory
because ADEQ’s existing SIP contains
fully-approved NSR permitting
programs, and the revisions were not
developed in response to a SIP call
under CAA section 110(k)(5). The EPA
again disagrees with the commenter’s
argument.
Even if the EPA has not issued a SIP
call under CAA section 110(k)(5),
sanctions generally will apply under
CAA section 179 when the EPA
disapproves a plan submission based on
plan deficiencies that relate to title I,
Part D requirements, unless ADEQ
adequately corrects those deficiencies
and the EPA takes action to approve a
corrected plan submittal before the
sanctions apply, or the EPA determines
that the existing plan meets the
applicable Part D requirements. See 40
CFR 52.31. A NA–NSR program that
meets CAA requirements is a required
element of a SIP. CAA §§ 110(a)(2)(C),
172(c)(5), 173; 40 CFR 51.165.
As discussed above, ADEQ’s NSR SIP
submittal included the removal of most
of ADEQ’s existing NSR program
elements from the Arizona SIP, so upon
the EPA’s final action there will not be
older NA–NSR SIP provisions that
could potentially meet the CAA NA–
NSR requirements that the EPA has
determined are not satisfied in the NA–
NSR program in ADEQ’s NSR SIP
submittal. The EPA’s limited approval/
limited disapproval action on ADEQ’s
NSR SIP submittal, including ADEQ’s
request to remove old and largely
outdated NSR provisions from the
Arizona SIP, allows us to approve into
the SIP the State’s choice to adopt and
implement its updated and strengthened
NA–NSR program while giving ADEQ
time to remedy certain deficiencies that
cause us not to grant full approval of the
submittal. Furthermore, even if one
assumed arguendo that these older
Arizona NA–NSR provisions were not
being removed from the Arizona SIP per
ADEQ’s request, the commenter has not
explained how the old NA–NSR
provisions would, in fact, meet the
specific NA–NSR requirements for
which the EPA has found deficiencies
with ADEQ’s updated NA–NSR
program. For example, ADEQ’s old SIPapproved program did not include NOX
as a precursor to ozone.
We note that the EPA is also finalizing
a partial disapproval—rather than
limited approval/limited disapproval—
for a separable ADEQ NSR program
provision that is analogous to a previous
federal NSR provision that a federal
Court determined is not a permissible
component of PSD programs—the PM2.5
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significant monitoring concentration
(SMC). As there is no deficiency related
to this issue in the approved plan
following our partial disapproval,
neither a FIP requirement nor sanctions
will result from this partial disapproval
action.
The EPA’s limited disapproval action
is based on program elements in
ADEQ’s NSR SIP submittal that do not
meet CAA requirements and are not
satisfied by the existing Arizona SIP
provisions that remain in place
following our final action.24 We wish to
clarify that all of the bases for our final
limited disapproval action on the ADEQ
NSR SIP submittal must be adequately
addressed in a timely manner in order
to avoid a requirement for a FIP or, for
Part D deficiencies, the application of
sanctions.
Finally, our final limited disapproval
also addresses some SIP elements or
provisions that are not required (e.g.,
deficiencies concerning optional PAL
provisions), but were not separable from
ADEQ’s NSR SIP submittal as they were
an integrated part of that submittal.
Because we are approving these
provisions into the SIP, the EPA will be
obligated to implement a FIP and/or
sanctions will apply (as applicable) for
such optional program elements that
remain in the SIP if the deficiencies in
those elements are not corrected to
ensure consistency with CAA
requirements.
Comment 7:
SRP states that to proceed using the
limited approval, limited disapproval
mechanism, The EPA must make an onthe-record determination that the
disapproved elements are not severable
from the approved elements. The EPA
has not made this finding or provided
this explanation in its proposed notice.
Response 7:
The EPA disagrees with this
comment. The commenter cites no
authority for this unsupported
proposition. Under CAA sections
110(k)(3) and 301(a) and the EPA’s longstanding guidance, limited approval and
partial approval are alternatives to full
approval or full disapproval of a
complete plan submission. Limited
approval may be appropriate where a
plan submittal contains some provisions
that meet applicable CAA requirements
and other provisions that do not, and
the provisions are not separable. Partial
approval may be used where a separable
24 In addition, ADEQ’s NSR SIP submittal did not
address the regulation of greenhouse gases (GHGs)
under the PSD program. As discussed in the notice
for our proposed action on ADEQ’s NSR SIP
submittal, a FIP is currently in place in Arizona to
address PSD requirements for GHGs. See 80 FR at
14054 n.17.
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portion of a plan submittal meets all
applicable CAA requirements. The EPA
has discretion under the CAA to choose
an appropriate approval or disapproval
mechanism for a plan submission, and
there is no required ‘‘finding’’ that the
provisions are not separable for a
proposed or final limited approval or
limited disapproval SIP action. See
Processing of State Implementation Plan
(SIP) Revisions, EPA Memorandum
from John Calcagni, Director, Air
Quality Management Division, OAQPS,
to Air Division Directors, EPA Regional
Offices I–X, September 7, 1992
(www.epa.gov/ttn/caaa/t1/memoranda/
siproc.pdf).
Nevertheless, in general, we believe
that, with the exception of the partial
disapproval of the PM2.5 SMC that we
are finalizing, the components of
ADEQ’s NSR SIP submittal are
interrelated and not separable from the
submittal as a whole and therefore not
appropriate for partial disapproval.
ADEQ has not provided us with any
basis to conclude that particular aspects
of its NSR SIP submittal for which we
proposed limited disapproval are not
integral or interrelated parts of the
submittal or are otherwise separable and
appropriate for partial disapproval.
Further, the commenter has not
demonstrated that any portion of the
ADEQ NSR SIP submittal for which we
proposed limited disapproval is, in fact,
separable and appropriate for partial
disapproval rather than limited
disapproval.
Comment 8:
One commenter states that the EPA’s
assertion that ADEQ may not exclude
certain pollutant-emitting activities
from PSD misinterprets the EPA’s
regulations. The commenter points to 40
CFR 51.160(e) and states that a State
may exclude activities that it anticipates
will have negligible or insignificant
environmental impacts from either the
major or minor NSR permit programs.
This regulatory approach makes sense
because it allows for a practical
integration of the multiple
preconstruction requirements. There is
no basis for requiring a State to regulate
activities with the more stringent
requirements contained in the PSD or
NA NSR program when those activities
fall below the levels of concern
established for the minor NSR program.
Response 8:
The regulations governing PSD and
NA–NSR SIP programs contain the
fundamental requirement that such
programs adopt a specified definition
for ‘‘stationary source.’’ 40 CFR
51.165(a)(1)(i), 51.166(b)(5). The
regulations require the use of the
prescribed definition, and state that
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deviations from the specified wording
will be approved only if ‘‘the State
specifically demonstrates that the
submitted definition is ‘‘more stringent,
or at least as stringent, in all respects’’
as the prescribed definition. 40 CFR
51.165(a)(1), 51.166(b). As explained in
reference to the NA–NSR program in
our March 18, 2015 proposal:
ADEQ must demonstrate that its
definition of stationary source is at least
as stringent as the federal definition at
51.165(a)(1)(i) in all respects.
See 80 FR at 14056; see also 80 FR at
14054 for the PSD program. The
commenter has not addressed how
ADEQ’s definition would be at least as
stringent as the definitions in
51.165(a)(1)(i) and 51.166(b)(5) in light
of the exemption language referenced in
our proposal, see 80 FR at 14054, nor
has ADEQ provided the necessary
demonstration that its definition of
stationary source is at least as stringent
as the definition of ‘‘stationary source’’
under the federal PSD and NA–NSR
programs. Indeed, ADEQ’s comments
did not address this basis of our
proposed limited disapproval. We
continue to find that this issue provides
a basis for limited disapproval of
ADEQ’s NSR SIP submittal.
We do not interpret 40 CFR 51.160(e)
as allowing states to develop less
stringent definitions for these programs
without the necessary demonstration
that the submitted definition is ‘‘more
stringent, or at least as stringent, in all
respects’’ as the prescribed definition as
required by 40 CFR 51.165(a)(1) and
51.166(b). Section 51.160(e) does not
contain any language giving states the
discretion to exclude any type of source
from the more specific major source
permitting requirements in section
51.165 and 51.166. Section 51.160(e)
does not say anything about sources that
have ‘‘negligible or insignificant
environmental impacts.’’ This section
simply requires that a state plan identify
the types and sizes of stationary sources
that are covered by the ‘‘legally
enforceable procedures’’ required under
section 51.160(a) to review construction
or modification of stationary sources.
Sections 51.165 and 51.166 provide
more detailed procedures that must
apply to major stationary sources. These
more specific provisions in sections
51.165 and 51.166 make clear that those
procedures must cover the type and size
of source covered by the definitions at
40 CFR 51.165(a)(1)(i) and 51.166(b)(5).
Comment 9:
One commenter takes issue with our
proposed limited disapproval of ADEQ’s
definition of projected actual emissions
on the basis that it does not specifically
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require malfunction emissions to be
included in the post-change projection.
The EPA has not shown how ADEQ’s
exclusion of this term from ADEQ’s
definition makes the definition less
stringent than the Federal rules.
Malfunctions, by definition, are
emissions associated with an
unpredictable and not reasonably
preventable event. In this respect, it is
axiomatic that a source cannot
reasonably project emissions that it
cannot predict. By excluding
malfunctions from its projected actual
emissions procedure, ADEQ recognizes
the EPA’s own interpretation of
‘‘malfunctions’’ and is no less stringent
than the federal definition. The EPA’s
proposed action also is inconsistent
with other Regional Office SIP
approvals that have approved
definitions of ‘‘projected actual
emissions’’ that do not require inclusion
of malfunction emissions.25 Moreover,
the comparable paragraph in the Federal
definition of ‘‘projected actual
emissions’’ merely clarifies that
projected actual emissions includes all
post-change emissions. The EPA could
approve ADEQ’s ‘‘projected actual
emissions’’ definition by severing and
not acting on paragraph R18–2–
401(20)(b)(iii) and the definition would
not lose its intended meaning.
Response 9:
The commenter asserts that the EPA
has not shown that ADEQ’s exclusion of
malfunction emissions from the
definition of ‘‘projected actual
emissions’’ makes the definition less
stringent. However, ADEQ has the
burden of demonstrating that its
alternative definitions are not less
stringent than the ones in the EPA’s
regulation. See 40 CFR 51.165(a)(1),
51.166(b). ADEQ’s definitions under the
PSD and NA–NSR programs warrant a
limited disapproval because the EPA
cannot reasonably conclude that
ADEQ’s definition is at least as stringent
as the definitions in 40 CFR 51.165(a)(1)
and/or 51.166(b). We note that ADEQ’s
definition for ‘‘baseline actual
emissions’’ specifically includes startup,
shutdown, and malfunction emissions,
while ADEQ’s definition for ‘‘projected
actual emissions’’ includes startup and
shutdown emissions but does not
include malfunction emissions. Further,
ADEQ’s definition of ‘‘projected actual
emissions’’ specifically excludes
malfunction emissions associated with a
shutdown. Based on the exclusion of
malfunction emissions from the
25 See, e.g., The EPA’s approval of Georgia’s PSD
program, Georgia’s PSD program at 391–3–1; and
the EPA’s approval of South Carolina’s regulation
at Chapter 7 Regulation 62.5.
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definition of ‘‘projected actual
emissions’’, and in the absence of a
response from ADEQ on this issue, we
conclude that ADEQ has not shown that
its definition is as stringent as the
federal definition. In addition, without
a clearer statement from ADEQ, we
cannot determine that R18–2–
401(20)(b)(iii) is separable from the rest
of the ADEQ definition of projected
actual emissions without losing the
apparently intended meaning by ADEQ
to specifically include startup and
shutdown but exclude malfunction
emissions. We note that ADEQ’s
comments did not address this basis for
our proposed limited disapproval.
With respect to the claim that the EPA
has previously approved PSD or NA–
NSR programs that do not include
malfunctions emissions under the
definition for projected actual
emissions, we note that the examples
provided by the commenter are not
completely analogous. In those
programs, the definition of baseline
actual emissions also excluded
malfunction emissions, whereas ADEQ
has included those emissions in its
definition of baseline actual emissions.
Without further justification from
ADEQ, this inconsistency across
definitions makes it difficult for the EPA
to determine the relative stringency of
ADEQ’s definitions as compared with
those in 40 CFR 51.165 and 51.166. The
commenter has not provided any
information about the nature of the
demonstrations that was supplied by the
states that obtained the EPA approval
for excluding malfunction emissions
from both the definition of baseline
actual emissions and projected actual
emissions.
Notwithstanding prior action by the
EPA in the context of SIPs in the
distinct circumstances noted above, the
EPA believes the proper interpretation
of these definitions is that they require
that all emissions, pre- and post-change,
including malfunctions, be included in
the definitions included in SIPs,
consistent with the regulatory text,
absent a demonstration that the State’s
regulation is at least as stringent as the
federal definition as required by 40 CFR
51.165(a)(1) and 51.166(b).
We note that in reviewing this
comment, we also reviewed our
proposed limited disapproval related to
the calculation of baseline actual
emissions under ADEQ’s PALs program
at R18–2–412(B)(2). See 80 FR 14053.
Upon review, we determined that our
proposed limited disapproval related to
the calculation of baseline actual
emissions under ADEQ’s PALs program
at R18–2–412(B)(2) was in error because
ADEQ’s definition for baseline actual
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emissions at R18–2–401(2)(i)
specifically includes startup, shutdown,
and malfunction emissions. Therefore,
this issue no longer provides a basis for
our limited disapproval of ADEQ’s NSR
SIP submittal.
Comment 10:
One commenter asserts that ADEQ’s
definition of regulated NSR pollutant is
not deficient for not including the final
two sentences in 40 CFR
51.166(b)(49)(i)(a). This language
addresses issuance of permits before
January 1, 2011. Since this SIP revision
applies to changes after this date, it is
not necessary for the definition to
address circumstances that existed
before SIP approval. Moreover, absence
of the language, in any case, does not
affect the stringency of the definition.
Response 10:
We agree with the commenter that
while ADEQ may want to add to its
definition these two sentences that
provide additional clarification, this
clarifying language is not necessary for
SIP approval. As such, we no longer
find this difference to be a deficiency
with ADEQ’s NSR program, and this
issue is not a basis for our final limited
disapproval.
Comment 11:
The EPA proposes to disapprove
ADEQ’s major NSR programs because
the SIP submittal does not include a
definition for ‘‘subject to regulation.’’
Although the Federal regulations
contain a definition for ‘‘subject to
regulation,’’ the EPA made clear, at the
time it adopted this definition, that
states may adopt (or already have)
alternative pathways for defining
applicability of the major NSR
program—the EPA did not intend for
codification of ‘‘subject to regulation’’ to
be a necessary element for SIP approval.
See 75 FR 31514 at 31525. The EPA
chose the ‘‘subject to regulation’’
pathway because it determined that this
would allow other states to adopt the
EPA’s definition through interpretation
without the need for a SIP revision.
ADEQ’s major source definition refers
to NSR regulated pollutants. ADEQ’s
definition of NSR regulated pollutant
covers all pollutants ADEQ is currently
required to regulate under its major NSR
programs. ADEQ’s program is not
currently deficient for failing to include
some unknown air pollutant that the
EPA may regulate in the future. Should
the EPA regulate such an air pollutant
in the future, the EPA may follow the
pathway it used for GHGs and issue a
SIP call at that time. Similarly, ADEQ’s
definition of regulated NSR pollutant is
not currently deficient for failing to
include some unidentified air pollutant
that the EPA might name in the future.
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Response 11:
After further review and
consideration of the comment, we are
not including the absence of a definition
of the term ‘‘subject to regulation’’ as a
basis for our limited disapproval of the
ADEQ NSR SIP submittal. Similarly, we
are also not including the omission in
ADEQ’s PSD rules of language
analogous to that in 40 CFR
51.166(b)(49)(iv) as a basis for our final
limited disapproval of the ADEQ NSR
SIP submittal. We note, however, that
contrary to commenters’ assertion, the
ADEQ SIP is deficient because ADEQ’s
definition of regulated NSR pollutant
does not cover all pollutants ADEQ is
currently required to regulate under its
major NSR programs, in that ADEQ’s
program does not regulate GHGs.
However, the EPA has separately taken
action to address this deficiency. The
EPA previously established a FIP for
GHGs for Arizona because ADEQ could
not apply its PSD program to GHGs due
to a State law prohibition.
Comment 12:
One commenter states that we must
approve ADEQ’s definition of basic
design parameter because the D.C.
Circuit made no finding in State of New
York v. EPA that the use of the ‘‘basic
design parameter’’ definition was
‘‘impermissible.’’ This issue was not
before the court in State of New York v.
EPA. At the time the EPA codified the
replacement unit provisions, the EPA
relied on a previously codified
definition of ‘‘basic design parameter’’
to explain how it will interpret the
phrase ‘‘basic design parameters’’ in
implementing the replacement unit
provisions. The vacatur of the ‘‘basic
design parameters’’ definition for
purposes of a separate, unrelated
rulemaking has no effect on the EPA’s
stated interpretation of that phrase for
purposes of the replacement unit
provisions. Accordingly, the EPA’s
statements in the preamble remain its
interpretation for purposes of
implementing those provisions. ADEQ’s
definition is fully consistent with the
EPA’s interpretation.
Response 12:
The EPA agrees with the commenter
that our proposed partial disapproval of
the definition for ‘‘basic design
parameter’’ was erroneous. We note that
ADEQ did not adopt any of the other
provisions of the Equipment
Replacement Provisions, which were
the subject of the D.C. Circuit Court’s
decision in State of New York v. EPA.
We agree with the commenter that
ADEQ’s adoption of a definition for
basic design parameter is acceptable in
this case, and consistent with the EPA’s
past statements related to this term.
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Therefore, we are not finalizing a partial
disapproval of ADEQ’s definition for
basic design parameter. Our final action
includes this definition as part of
ADEQ’s NSR SIP submittal for which
the EPA is finalizing a limited approval/
limited disapproval, but it is not a basis
for our limited disapproval.
III. Final Action
Pursuant to section 110(k) of the CAA,
the EPA is finalizing a limited approval
and limited disapproval of the ADEQ
rules listed in Table 1 above. We are
also approving into the Arizona SIP the
Arizona statutory provision relating to
local delegation of state authority
identified in Table 1 above. In addition,
we are removing from the Arizona SIP
certain rules and appendices, which are
outdated and mostly being superseded
by this action. See Table 2 above. We
are also finalizing a partial disapproval
of one provision of ADEQ’s NSR SIP
submittal concerning the PM2.5 SMC, as
the analogous federal regulatory
provision has been vacated by a federal
Court.26 Last, we are finalizing a limited
approval (but not a limited disapproval)
based on requirements under section
189 of the Act related to PM10 and PM2.5
precursors for ADEQ’s nonattainment
NSR program for the Nogales and West
Central Pinal PM2.5 nonattainment areas
and the West Pinal PM10 nonattainment
area.
Our limited approval and limited
disapproval action will approve the
updated rules included in the ADEQ
NSR SIP submittal into the ADEQ
portion of the Arizona SIP.27 However,
ADEQ must correct certain deficiencies
in the approved rules in order to obtain
full approval for its NSR SIP submittal.
Our TSD and proposal for this action
described in detail the deficiencies we
identified with ADEQ’s NSR SIP
submittal which we determined were
bases for limited approval and limited
disapproval. With the exception of the
changes we are making from our
proposal as described in section II.B of
this preamble, we are finalizing our
action as proposed. For some of these
disapproval issues, no adverse comment
was received during the public
comment period on our proposed
action; where comments were received
on these issues, we addressed the
comments in our Response to
Comments document. See section C of
26 The
EPA’s partial disapproval concerning the
PM2.5 SMC does not require follow-up action by
ADEQ. However, for clarity, ADEQ may wish to
remove this disapproved provision from its
regulations.
27 This excludes the PM
2.5 SMC provision for
which we issuing a partial disapproval, as
discussed elsewhere in this action.
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this preamble. A list summarizing the
bases for our limited disapproval is
included in a memorandum to the file
for this action.28
Our limited disapproval action will
trigger an obligation on the EPA to
promulgate a FIP unless Arizona
corrects the deficiencies that are the
bases for the limited disapproval, and
the EPA approves the related plan
revisions, within two years of the final
action. Additionally, for those
deficiencies that are bases for our
limited disapproval that relate to NA–
NSR requirements under part D of title
I of the Act, the offset sanction in CAA
section 179(b)(2) would apply in the
nonattainment areas under ADEQ’s
jurisdiction 18 months after the effective
date of a final limited disapproval, and
the highway funding sanctions in CAA
section 179(b)(1) would apply in these
areas six months after the offset sanction
is imposed. Neither sanction will be
imposed under the CAA if Arizona
submits, and we approve, prior to the
implementation of the sanctions, SIP
revisions that correct the deficiencies
that we identify in our final action.29
We intend to work with ADEQ to
correct the deficiencies identified in this
action in a timely manner.
IV. Incorporation by Reference
In this rule, the EPA is finalizing
regulatory text that includes
incorporation by reference. In
accordance with requirements of 1 CFR
51.5, the EPA is finalizing the
incorporation by reference of the ADEQ
rules and the statutory provision
described in the amendments to 40 CFR
part 52 set forth below. The EPA has
made, and will continue to make, these
documents available electronically
through www.regulations.gov and in
hard copy at the appropriate EPA office
(see the ADDRESSES section of this
preamble for more information).
V. Statutory and Executive Order
Reviews
A. Executive Order 12866, Regulatory
Planning and Review and Executive
Order 13563, Improving Regulation and
Regulatory Review
This action is not a ‘‘significant
regulatory action’’ under the terms of
28 ‘‘List of Bases for Final Limited Disapproval of
ADEQ NSR SIP Submittal,’’ Lisa Beckham, Air
Permits Office, EPA Region 9, June 22, 2015.
29 In addition, ADEQ must also address our
limited approval under section 189 of the Act
related to PM10 and PM2.5 precursors for the Nogales
and West Central Pinal PM2.5 nonattainment areas
and the West Pinal PM10 nonattainment area.
However, because this issue is not a basis for our
limited disapproval action, it does not trigger a FIP
clock or the potential for sanctions.
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Executive Order 12866 (58 FR 51735,
October 4, 1993) and is therefore not
subject to review under Executive
Orders 12866 and 13563 (76 FR 3821,
January 21, 2011).
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 Flexibility Act
The Regulatory Flexibility Act (RFA)
generally requires an agency to conduct
a regulatory flexibility analysis of any
rule subject to notice and comment
rulemaking requirements unless the
agency certifies that the rule will not
have a significant economic impact on
a substantial number of small entities.
Small entities include small businesses,
small not-for-profit enterprises, and
small governmental jurisdictions.
This rule will not have a significant
impact on a substantial number of small
entities because SIP approvals or
disapprovals under section 110 and
subchapter I, part D of the Clean Air Act
do not create any new requirements but
simply approve or disapprove
requirements that the State is imposing.
Therefore, because this action does not
create any new requirements, I certify
that this action will not have a
significant economic impact on a
substantial number of small entities.
Moreover, due to the nature of the
Federal-State relationship under the
Clean Air Act, preparation of flexibility
analysis would constitute Federal
inquiry into the economic
reasonableness of State action. The
Clean Air Act forbids the 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
The 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 approves or disapproves
pre-existing requirements under State or
local law, and imposes no new
requirements.
E. Executive Order 13132, Federalism
This action does not have federalism
implications. It will not have substantial
direct effects on the states, on the
relationship between the national
government and the states, or in the
distribution of power and
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responsibilities among the various
levels of government, as specified in
Executive Order 13132.
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 the
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 final rule does not
have tribal implications, as specified in
Executive Order 13175. It will not have
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.
The SIP is not approved to apply on any
Indian reservation land or in any other
area where the EPA or an Indian tribe
has demonstrated that a tribe has
jurisdiction. In those areas of Indian
country, the rule does not have tribal
implications and will not impose
substantial direct costs on tribal
governments or preempt tribal law as
specified by Executive Order 13175.
Thus, Executive Order 13175 does not
apply to this rule.
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G. Executive Order 13045, Protection of
Children From Environmental Health
Risks and Safety Risks
The 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
approves or disapproves State rules
intended to implement a Federal
standard.
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
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standards when developing a new
regulation. To comply with NTTAA, the
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.
The EPA believes application of VCS
to this action would be inconsistent
with the Clean Air Act.
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 CAA
section 307(b)(2)).
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Population
Executive Order (EO) 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.
The EPA has determined that this rule
will not have disproportionately high
and adverse human health or
environmental effects on minority or
low-income populations because it does
not change the level of environmental
protection for any affected populations.
Air pollution control, Carbon
monoxide, Environmental protection,
Greenhouse gases, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
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. The 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 January 4, 2016.
Filing a petition for reconsideration by
the Administrator of this final rule does
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List of Subjects in 40 CFR Part 52
Dated: June 29, 2015.
Jared Blumenfeld,
Regional Administrator, Region IX.
40 CFR part 52 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.
2. Section 52.120 is amended:
a. By revising paragraphs (c)(27)(i)(C),
(c)(43)(i)(C), (c)(45)(i)(D).
■ b. By adding paragraph
(c)(47)(i)(A)(1).
■ c. By revising paragraph (c)(50)(i)(C).
■ d. By revising paragraph (c)(54)(i)(E).
■ e. By adding paragraph (c)(54)(i)(H).
■ f. By revising paragraph (c)(56)(i)(C).
■ g. By adding paragraphs
(c)(59)(i)(A)(2) and (c)(161)(i)(A)(6).
■ h. By revising the introductory text of
paragraph (c)(162)
■ i. By adding paragraphs
(c)(162)(i)(A)(3) and (4), and (c)(162)(ii).
The revisions and additions read as
follows:
■
■
§ 52.120
Identification of plan.
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(c) * * *
(27) * * *
(i) * * *
(C) Previously approved in paragraphs
(c)(27)(i)(A) and (B) of this section and
now deleted without replacement: R9–
3–101 (all paragraphs and nos. listed),
paragraph B of R9–3–217, R9–3–301 (all
paragraphs listed), R9–3–306 (all
paragraphs listed), R9–3–307 (all
paragraphs listed), R9–3–308, R9–3–310
(Paragraph C), R9–3–311 (Paragraph A),
R9–3–312, R9–3–314, R9–3–315, R9–3–
316, R9–3–317, R9–3–318, R9–3–518
(Paragraphs B and C), R9–3–319, R9–3–
1101, and Appendix 10 (Sections
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A10.1.3.3, A10.1.4 and A10.2.2 to
A10.3.4).
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(43) * * *
(i) * * *
(C) Previously approved in paragraphs
(c)(43)(i)(A) and (B) of this section and
now deleted without replacement: R9–
3–101 (all paragraphs and nos. listed),
R9–3–301 (all paragraphs listed), R9–3–
302 (all paragraphs listed), R9–3–303,
R9–3–306 (all paragraphs listed), R9–3–
307 (all paragraphs listed), and R9–3–
518 (Paragraph A.1 to A.5).
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(45) * * *
(i) * * *
(D) Previously approved in
paragraphs (c)(45)(i)(A) and (B) of this
section and now deleted without
replacement: R9–3–101 (all paragraphs
and nos. listed), R9–3–301 (all
paragraphs listed), R9–3–306 (all
paragraphs listed), R9–3–311 (all
paragraphs listed), R9–3–509, and
Appendix 10 (Sections A10.2 and
A10.2.1).
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(47) * * *
(i) * * *
(A) * * *
(1) Previously approved in this
paragraph (c)(47)(i)(A) and now deleted
without replacement: R9–3–101 (all
paragraphs and nos. listed).
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(50) * * *
(i) * * *
(C) Previously approved in paragraph
(c)(50)(i)(A) of this section and now
deleted without replacement: R9–3–310
(Paragraphs A and B) and Appendix 10
(Sections A10.1–A10.1.3.2).
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(54) * * *
(i) * * *
(E) Previously approved in paragraphs
(c)(54)(i)(B) and (c)(54)(i)(C) of this
section and now deleted without
replacement: R9–3–101 (all nos. listed
except no. 20).
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(H) Previously approved in
paragraphs (c)(54)(i)(B), (C), and (D) of
this section and now deleted without
replacement: R9–3–301 (all paragraphs
except paragraphs I and K), R9–3–302
(all paragraphs listed), R9–3–303 (all
paragraphs listed), R9–3–304 (all
paragraphs except paragraph H), R9–3–
305, R9–3–306 (paragraph A only), and
R9–3–1101 (all paragraphs listed).
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(56) * * *
(i) * * *
(C) Previously approved in paragraphs
(c)(56)(i)(A) and (B) of this section and
VerDate Sep<11>2014
17:39 Oct 30, 2015
Jkt 238001
now deleted without replacement: R9–
3–101 (Nos. 135 and 157), R9–3–218,
R9–3–310, R9–3–322, R9–3–1101 and
Appendix 11.
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(59) * * *
(i) * * *
(A) * * *
(2) Previously approved in paragraph
(c)(59)(i)(A)(1) of this section and now
deleted without replacement: R9–3–303.
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(161) * * *
(i) * * *
(A) * * *
(6) Arizona Administrative Code,
Title 18, ‘‘Environmental Quality’’,
chapter 2,’’Department of
Environmental Quality—Air Pollution
Control’’, R18–2–311, ‘‘Test Methods
and Procedures,’’ and R18–2–312,
‘‘Performance Tests,’’ effective
November 15, 1993.
(162) The following plan revision was
submitted on October 29, 2012, and
supplemented on September 6, 2013
and July 2, 2014, by the Governor’s
designee.
(i) * * *
(A) * * *
(3) Arizona Administrative Code,
Title 18, ‘‘Environmental Quality,’’
chapter 2 ‘‘Department of
Environmental Quality—Air Pollution
Control,’’ R18–2–101, ‘‘Definitions,’’
only definition nos. (2), (32), (87), (109),
and (122), effective August 7, 2012;
R18–2–217, ‘‘Designation and
Classification of Attainment Areas,’’
effective November 15, 1993; R18–2–
218, ‘‘Limitation of Pollutants in
Classified Attainment Areas,’’ effective
August 7, 2012; R18–2–301,
‘‘Definitions,’’ effective August 7, 2012;
R18–2–302, ‘‘Applicability; Registration;
Classes of Permits,’’ effective August 7,
2012; R18–2–302.01, ‘‘Source
Registration Requirements,’’ effective
August 7, 2012; R18–2–303, ‘‘Transition
from Installation and Operating Permit
Program to Unitary Permit Program;
Registration Transition; Minor NSR
Transition,’’ effective August 7, 2012;
R18–2–304, ‘‘Permit Application
Processing Procedures,’’ effective
August 7, 2012; R18–2–306, ‘‘Permit
Contents,’’ effective December 20, 1999;
R18–2–306.01, ‘‘Permits Containing
Voluntarily Accepted Emission
Limitations and Standards,’’ effective
January 1, 2007; R18–2–306.02,
‘‘Establishment of an Emissions Cap,’’
effective September 22, 1999; R18–2–
315, ‘‘Posting of Permit,’’ effective
November 15,1993; R18–2–316, ‘‘Notice
by Building Permit Agencies,’’ effective
May 14, 1979; R18–2–319, ‘‘Minor
Permit Revisions,’’ August 7, 2012; R18–
PO 00000
Frm 00074
Fmt 4700
Sfmt 9990
2–320, ‘‘Significant Permit Revisions,’’
effective August 7, 2012; R18–2–321,
‘‘Permit Reopenings; Revocation and
Reissuance; Termination,’’ effective
August 7, 2012; R18–2–323, ‘‘Permit
Transfers,’’ effective February 3, 2007;
R18–2–330, ‘‘Public Participation,’’
effective August 7, 2012; R18–2–332,
‘‘Stack Height Limitation,’’ effective
November 15, 1993; R18–2–334, ‘‘Minor
New Source Review’’ effective August 7,
2012; R18–2–401 ‘‘Definitions,’’
effective August 7, 2012; R18–2–402
‘‘General,’’ effective August 7, 2012;
R18–2–403 ‘‘Permits for Sources
Located in Nonattainment Areas,’’
effective August 7, 2012; R18–2–404,
‘‘Offset Standards,’’ effective August 7,
2012; R18–2–405, ‘‘Special Rule for
Major Sources of VOC or Nitrogen
Oxides in Ozone Nonattainment Areas
Classified as Serious or Severe,’’
effective August 7, 2012; R18–2–406,
‘‘Permit Requirements for Sources
Located in Attainment and
Unclassifiable Areas,’’ effective August
7, 2012; R18–2–407, ‘‘Air Quality
Impact Analysis and Monitoring
Requirements,’’ excluding subsection
(H)(1)(c), effective August 7, 2012; R18–
2–409, ‘‘Air Quality Models,’’ effective
November 15, 1993; and R18–2–412,
‘‘PALs’’ effective August 7, 2012.
(4) Arizona Revised Statutes, title 49,
‘‘Environment,’’ chapter 1 ‘‘General
Provisions’’, section 49–107, ‘‘Local
delegation of state authority,’’ effective
July 1, 1987.
(ii) Additional materials.
(A) Arizona Department of
Environmental Quality.
(1) Setting Applicability Thresholds,
pages 1547–1549 in Appendix A to
‘‘State Implementation Plan Revision:
New Source Review’’ adopted on
October 29, 2012.
(2) Memorandum, ‘‘Proposed Final
Permits to be Treated as Appealable
Agency Actions,’’ dated February 10,
2015, from Eric Massey, Air Quality
Division Director to Balaji
Vaidyanathan, Permit Section Manager,
submitted on February 23, 2015.
(3) ‘‘State Implementation Plan
Revision: New Source Review—
Supplement,’’ relating to the division of
jurisdiction for New Source Review in
Arizona, adopted on July 2, 2014.
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[FR Doc. 2015–27785 Filed 10–30–15; 8:45 am]
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[Federal Register Volume 80, Number 211 (Monday, November 2, 2015)]
[Rules and Regulations]
[Pages 67319-67334]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-27785]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2015-0187; FRL-9930-43-Region 9]
Revisions to Air Plan; Arizona; Stationary Sources; New Source
Review
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is finalizing a
limited approval and limited disapproval of, and other actions on,
revisions to the Arizona Department of Environmental Quality (ADEQ)
portion of the applicable state implementation plan (SIP) for the State
of Arizona (State or Arizona) under the Clean Air Act (CAA or Act).
These revisions submitted by Arizona are primarily intended to serve as
a replacement of ADEQ's existing SIP-approved rules for the issuance of
New Source Review (NSR) permits for stationary sources, including
review and permitting of major and minor sources under the Act. After a
lengthy stakeholder process, the State submitted a NSR program for SIP
approval that satisfies most of the applicable CAA and NSR regulatory
requirements, and which will significantly update ADEQ's existing SIP-
approved NSR program. It also represents an overall strengthening of
ADEQ's SIP-approved NSR program by clarifying and enhancing the NSR
requirements for major and minor stationary sources. This final action
updates the applicable plan while allowing ADEQ to remedy certain
deficiencies in ADEQ's rules.
DATES: This rule is effective December 2, 2015.
ADDRESSES: EPA has established docket number EPA-R09-OAR-2015-0187 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. Some docket
materials, however, may be publicly available only at the hard copy
location (e.g., voluminous records, maps, 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: Lisa Beckham, EPA Region 9, (415) 972-
3811, beckham.lisa@epa.gov.
Table of Contents
I. Background
II. The EPA's Evaluation of the SIP Revision
A. What action is the EPA finalizing?
B. What changes is the EPA making from its proposed action?
C. Public Comments and Responses
III. Final Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews
For the purpose of this document, we are giving meaning to certain
words or initials as follows:
(i) The words or initials Act or CAA mean or refer to the Clean
Air Act, unless the context indicates otherwise.
(ii) The initials ADEQ mean or refer to the Arizona Department
of Environmental Quality.
(iii) The initials A.R.S. mean or refer to the Arizona Revised
Statutes.
(iv) The initials AQIA mean or refer to air quality impact
analysis.
(v) The initials BACT mean or refer to Best Available Control
Technology.
(vi) The initials CFR mean or refer to Code of Federal
Regulations.
(vii) The initials CO mean or refer to carbon monoxide.
(viii) The words EPA, we, us or our mean or refer to the United
States Environmental Protection Agency.
(ix) The initials FIP mean or refer to Federal Implementation
Plan.
(x) The initials GHG mean or refer to greenhouse gas.
(xi) The initials IBR mean or refer to incorporation by
reference.
(xii) The initials LAER mean or refer to Lowest Achievable
Emissions Rate.
(xiii) The initials NAAQS mean or refer to National Ambient Air
Quality Standards.
(xiv) The initials NA-NSR mean or refer to Nonattainment New
Source Review.
(xv) The initials NOX mean or refer to nitrogen oxides.
(xvi) The initials NSR mean or refer to New Source Review.
(xvii) The initials PAL mean or refer to Plantwide Applicability
Limits
(xviii) The initials PM10 mean or refer to particulate matter
with an aerodynamic diameter of less than or equal to 10
micrometers.
(xix) The initials PM2.5 mean or refer to particulate matter
with an aerodynamic diameter of less than or equal to 2.5
micrometers (fine particulate matter).
(xx) The initials PSD mean or refer to Prevention of Significant
Deterioration.
(xxi) The initials PTE mean or refer to potential to emit.
(xxii) The initials RACT mean or refer to reasonably available
control technology.
(xxiii) The initials SER mean or refer to significant emission
rate.
(xxiv) The initials SIP mean or refer to State Implementation
Plan.
(xxv) The initials SMC mean or refer to significant monitoring
concentration.
(xxvi) The initials SO2 mean or refer to sulfur dioxide.
(xxvii) The initials SRP mean or refer to the Salt River Project
Agricultural Improvement and Power District.
(xxviii) The words State or Arizona mean the State of Arizona,
unless the context indicates otherwise.
(xxix) The initials TSD mean or refer to the technical support
document for this action.
(xxx) The initials VOC mean or refer to volatile organic
compound.
I. Background
On March 18, 2015, the EPA provided notice of, and requested public
comment on, our proposed CAA rulemaking to revise certain portions of
the Arizona SIP for ADEQ. See 80 FR 14044 (Mar. 18, 2015). We proposed
action on SIP submittals that comprise ADEQ's updated program for
preconstruction review and permitting of new or modified stationary
sources under ADEQ's jurisdiction in Arizona.\1\ The SIP submittals
that are the subject of this action, referred to herein as the ``NSR
SIP submittal,'' provide a comprehensive revision to ADEQ's
preconstruction review and permitting program for stationary sources
and are intended to satisfy requirements under both part C (prevention
of significant deterioration) (PSD) and part D (nonattainment new
source review) of title I of the Act as well as the general
preconstruction review requirements under section 110(a)(2)(C) of the
Act.
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\1\ These submittals and our current action also address two
rules and one statutory provision that are not directly related to
NSR.
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As a component of its NSR SIP submittal, ADEQ also requested the
removal from the Arizona SIP of numerous older rules, as well as one
Arizona statutory provision, which are mostly superseded by the newer
provisions that are the subject of this action or by newer provisions
that have already been approved into the Arizona SIP. Accordingly, our
action also will remove certain provisions from the Arizona SIP.
The EPA's rulemaking action on the ADEQ NSR SIP submittal is
intended to update the applicable SIP consistent with ADEQ's requests,
while allowing ADEQ to remedy certain deficiencies in
[[Page 67320]]
the submittal where ADEQ's rules do not fully meet CAA requirements. In
our proposed rulemaking action, we primarily proposed a limited
approval and limited disapproval, with certain exceptions and additions
with respect to specific statutory and rule provisions, as follows. We
proposed partial disapproval of two specific components of ADEQ's NSR
submittal that we believed were analogous to provisions in the federal
NSR regulations that had been vacated by federal Courts and that we
determined were separable from the remainder of the NSR SIP submittal.
In addition, we proposed a limited approval for a portion of ADEQ's
nonattainment NSR (NA-NSR) program based on requirements of section
189(e) of the Act related to the permitting of major sources of
PM10 and PM2.5 precursors, but did not propose a
limited disapproval on this basis. For two non-NSR rules for which ADEQ
requested SIP approval, we also proposed a limited approval and limited
disapproval. For a non-NSR statutory provision for which ADEQ requested
SIP approval, A.R.S. Sec. 49-107, we proposed full approval into the
SIP. Last, we proposed to remove numerous NSR and non-NSR rules from
the SIP as requested by ADEQ.\2\
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\2\ See Table 2, which identifies those rules and statutory
provisions that are being removed from the Arizona SIP. This updated
table corrects certain typographical errors in the preamble of our
proposed action. See our discussion of those errors in our responses
to comments 14-15 in our Response to Comments document.
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The ADEQ NSR SIP submittal was extensive in scope. We prepared a
comprehensive Evaluation of the submittal in light of the requirements
of the CAA and its implementing regulations, and provided a detailed
discussion of our findings in the Technical Support Document (TSD) for
our proposed action. Both the Evaluation and the TSD were available in
the docket for our rulemaking during the public comment period. Our
proposed rule discussed our analysis and findings, but focused
primarily on the issues that formed the basis for our limited approval/
limited disapproval of the ADEQ NSR SIP submittal, and referenced the
TSD for additional information concerning our analysis. The Evaluation
was an attachment to the TSD.
II. The EPA's Evaluation of the SIP Revision
A. What action is the EPA finalizing?
The EPA is finalizing a SIP revision for the ADEQ portion of the
Arizona SIP for the rules and statutory provision listed in Table 1.
The SIP revision will be codified in 40 CFR 52.120 by incorporating by
reference the rules and statutory provision in ADEQ's NSR SIP submittal
as listed in Table 1.\3\ Certain non-regulatory submittals and
clarifications provided by ADEQ will also be included as part of the
Arizona SIP in 40 CFR 52.120. In this final action, the EPA is relying,
in part, on the clarifications and interpretations provided by ADEQ, as
described in the discussion of our responses to comments in Section
II.C below.
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\3\ We listed an incorrect submittal date for certain rules in
the ADEQ NSR SIP submittal in Table 1 of our proposed action; this
date is corrected in Table 1 here. See response to comment 13 in our
Response to Comments document.
Table 1--Submitted Statutes and Rules Approved in This Action
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State
Rule or statute Title effective Submitted
date
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A.R.S. Sec. 49-107....................... Local delegation of state authority 8/18/1987 07/2/2014
R18-2-101 [only definitions (2), (32), Definitions........................ 08/07/2012 10/29/2012
(87), (109), and (122)].
R18-2-217.................................. Designation and Classification of 11/15/1993 10/29/2012
Attainment Areas.
R18-2-218.................................. Limitation of Pollutants in 08/07/2012 10/29/2012
Classified Attainment Areas.
R18-2-301.................................. Definitions........................ 08/07/2012 10/29/2012
R18-2-302.................................. Applicability; Registration; 08/07/2012 10/29/2012
Classes of Permits.
R18-2-302.01............................... Source Registration Requirements... 08/07/2012 10/29/2012
R18-2-303.................................. Transition from Installation and 08/07/2012 10/29/2012
Operating Permit Program to
Unitary Permit Program;
Registration transition; Minor NSR
Transition.
R18-2-304.................................. Permit Application Processing 08/07/2012 10/29/2012
Procedures.
R18-2-306.................................. Permit Contents.................... 12/20/1999 10/29/2012
R18-2-306.01............................... Permits Containing Voluntarily 1/1/2007 10/29/2012
Accepted Emission Limitations and
Standards.
R18-2-306.02............................... Establishment of an Emissions Cap.. 09/22/1999 10/29/2012
R18-2-311.................................. Test Methods and Procedures........ 11/15/1993 07/28/2011
R18-2-312.................................. Performance Tests.................. 11/15/1993 07/28/2011
R18-2-315.................................. Posting of Permit.................. 11/15/1993 10/29/2012
R18-2-316.................................. Notice by Building Permit Agencies. 05/14/1979 10/29/2012
R18-2-319.................................. Minor Permit Revisions............. 08/07/2012 10/29/2012
R18-2-320.................................. Significant Permit Revisions....... 08/07/2012 10/29/2012
R18-2-321.................................. Permit Reopenings; Revocation and 08/07/2012 10/29/2012
Reissuance.
R18-2-323.................................. Permit Transfers................... 02/03/2007 10/29/2012
R18-2-330.................................. Public Participation............... 08/07/2012 10/29/2012
R18-2-332.................................. Stack Height Limitation............ 11/15/1993 10/29/2012
R18-2-334.................................. Minor New Source Review............ 08/07/2012 10/29/2012
R18-2-401.................................. Definitions........................ 08/07/2012 10/29/2012
R18-2-402.................................. General............................ 08/07/2012 10/29/2012
R18-2-403.................................. Permits for Sources Located in 08/07/2012 10/29/2012
Nonattainment Areas.
R18-2-404.................................. Offset Standards................... 08/07/2012 10/29/2012
R18-2-405.................................. Special Rule for Major Sources of 08/07/2012 10/29/2012
VOC or Nitrogen Oxides in Ozone
Nonattainment Areas Classified as
Serious or Severe.
[[Page 67321]]
R18-2-406.................................. Permit Requirements for Sources 08/07/2012 10/29/2012
Located in Attainment and
Unclassifiable Areas.
R18-2-407 [excluding subsection (H)(1)(c)]. Air Quality Impact Analysis and 08/07/2012 10/29/2012
Monitoring Requirements.
R18-2-409.................................. Air Quality Models................. 11/15/1993 10/29/2012
R18-2-412.................................. PALs............................... 08/07/2012 10/29/2012
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In addition, this final action removes the rules and appendices
listed in Table 2 from the ADEQ portion of the Arizona SIP.
Table 2--SIP Rules and Appendices Removed From Arizona SIP in This Action
----------------------------------------------------------------------------------------------------------------
Federal
Rule or appendix Title EPA approval Register
date citation
----------------------------------------------------------------------------------------------------------------
R9-3-101 [excluding subsection (20)]....... Definitions........................ Various Various
R9-3-217(B)................................ Attainment Areas: Classification 04/23/1982 47 FR 17483
and Standards.
R9-3-301, [excluding subsections (I), (K)]. Installation Permits: General...... 05/03/1983 48 FR 19878
R9-3-302................................... Installation Permits in 08/10/1988 53 FR 30220
Nonattainment Areas.
R9-3-303................................... Offset Standards................... 08/10/1988 53 FR 30220
R9-3-304, [excluding subsection (H)]....... Installation Permits in Attainment 05/03/1983 48 FR 19878
Areas.
R9-3-305................................... Air Quality Analysis and Monitoring 05/03/1983 48 FR 19878
Requirements.
R9-3-306................................... Source Registration Requirements... 05/03/1983 48 FR 19878
R9-3-307................................... Replacement........................ 05/05/1982 47 FR 19326
R9-3-308................................... Permit Conditions.................. 04/23/1982 47 FR 17483
R9-3-310................................... Test Methods and Procedures........ 10/19/1984 49 FR 41026
R9-3-311................................... Air Quality Models................. 04/23/1982 47 FR 17483
R9-3-312................................... Performance Tests.................. 04/23/1982 47 FR 17483
R9-3-314................................... Excess Emissions Reporting......... 04/23/1982 47 FR 17483
R9-3-315................................... Posting of Permits................. 04/23/1982 47 FR 17483
R9-3-316................................... Notice by Building Permit Agencies. 04/23/1982 47 FR 17483
R9-3-317................................... Permit Non-transferrable; Exception 04/23/1982 47 FR 17483
R9-3-318................................... Denial or Revocation of 04/23/1982 47 FR 17483
Installation or Operating Permit.
R8-3-319................................... Permit Fees........................ 04/23/1982 47 FR 17483
R9-3-322................................... Temporary Conditional Permits...... 10/19/1984 49 FR 41026
R9-3-1101.................................. Jurisdiction....................... 05/03/1983 48 FR 19878
Appendix 4................................. Fee Schedule for Installation and 09/19/1977 42 FR 46926
Operating Permits.
Appendix 5................................. Fee Schedule for Conditional 09/19/1977 42 FR 44926
Permits.
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In summary, this action is primarily a limited approval and limited
disapproval of a SIP submittal from Arizona for the ADEQ portion of the
Arizona SIP that governs preconstruction review and the issuance of
preconstruction permits for stationary sources, including the review
and permitting of new major sources and major modifications under parts
C and D of title I of the CAA as well as review of new and modified
minor sources. The intended effect of our final limited approval and
limited disapproval action is to update the applicable SIP with current
ADEQ regulations, while allowing ADEQ to remedy the identified
deficiencies in these regulations. We are also removing at ADEQ's
request certain rules and appendices from the Arizona SIP, which are
outdated and which are mostly being superseded by this action. In
addition, we are finalizing a partial disapproval of one provision in
ADEQ's NSR program that has been vacated by the courts. We are
finalizing a limited approval of ADEQ's NA-NSR program for certain
nonattainment areas based on requirements under section 189 of the Act
related to PM10 and PM2.5 precursors (without a
limited disapproval on this basis). Last, we are finalizing a limited
approval and limited disapproval of two ADEQ non-NSR rules relating to
test methods and procedures and performance tests, and finalizing the
approval of an Arizona statutory provision relating to local delegation
of state authority.
We are finalizing the above-described action because, although we
find that the new and amended rules submitted by ADEQ meet most of the
applicable CAA requirements for preconstruction review programs and
other CAA requirements, and that overall the SIP revisions improve and
strengthen the existing SIP, we have found certain deficiencies that
prevent full approval, as explained in our proposed action and in the
TSD for this rulemaking, and in this final action and our Response to
Comments document.
We reviewed the ADEQ NSR SIP submittal in accordance with
applicable CAA requirements, primarily including those that apply to:
(1) General preconstruction review programs, including for minor
sources, under section 110(a)(2)(C) of the Act; (2) PSD permit programs
under part C of title I of the Act; and (3) NA-NSR permit programs
under part D of title I of the Act. For the most part, ADEQ's submittal
satisfies the applicable CAA requirements, including those for these
preconstruction review programs, and our approval will strengthen the
applicable SIP by updating the
[[Page 67322]]
regulations and adding provisions to address new or revised federal NSR
permitting and other requirements. However, the submitted rules also
contain specific deficiencies and inconsistencies with CAA requirements
that prevent us from granting full SIP approval. These deficiencies
form the basis for our limited approval and limited disapproval action,
and for our partial disapproval of one rule provision.
B. What changes is the EPA making from its proposed action?
We are largely finalizing our action as proposed. However, in
response to public comments we received, our final action differs in
some respects from our proposed action. For certain deficiencies
identified in our proposal as bases for limited disapproval, we have
changed our determination and no longer find that these are bases for
our limited disapproval. In addition, we have changed our determination
concerning one of the ADEQ rule provisions for which we had proposed
partial disapproval; we are not finalizing our partial disapproval of
this provision.
Specifically, the following issues that had been identified in our
proposed action as bases for limited disapproval are not a basis for
our final limited disapproval: (1) ADEQ's use of the term ``proposed
final permit'' in its rules for the minor NSR, PSD and NA-NSR programs;
(2) a question concerning whether ADEQ rule R18-2-334(E) requires ADEQ
to review potential impacts on the attainment and maintenance of the
National Ambient Air Quality Standards (NAAQS) for all minor sources
subject to new source review under ADEQ rule R18-2-334;\4\ (3) the lack
of a definition in ADEQ's PSD regulations for the term ``subject to
regulation;'' (4) the lack of a reference in ADEQ's PSD rules to
pollutants subject to regulation in the definition of ``regulated NSR
pollutant,'' per 40 CFR 51.166(b)(49)(iv); (5) the lack of certain
language in ADEQ's PSD rules concerning condensable particulate matter,
per 40 CFR 51.166(b)(49)(i); (6) potential ambiguity as to whether
references to the undefined term ``Arizona Ambient Air Quality
Standards'' in ADEQ's NSR regulations refer to ADEQ's Article 2 air
quality standards; (7) language concerning the calculation of baseline
actual emissions under ADEQ's plantwide applicability limits (PALs)
provisions for the PSD and NA-NSR programs; and (8) public notice
requirements for alternative or modified air modeling under ADEQ's
rules for the PSD program. In addition, we are not finalizing a partial
disapproval of ADEQ's definition for ``basic design parameter.'' We now
find the ADEQ NSR SIP submittal approvable with respect to these
particular issues. Our rationale for changing our determination on
these issues is included in our Response to Comments document for this
action, and some of these issues are also discussed in the Public
Comments and Responses section below.
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\4\ Due to a typographical error, in discussing this issue, the
notice for our proposed action inadvertently referenced subsection
(G) of R18-2-334 instead of subsection (E).
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In addition, we are making three technical corrections to address
typographical errors, as noted by commenters: (1) Correction of SIP
submittal dates listed in Table 1 (listing the rules and statutory
provisions that we are approving into the SIP) so that ``10/29/2012''
is listed instead of ``10/29/2014,'' (2) correction of Table 2 (the
list of rules and appendices that we are removing from the SIP) to
exclude subsection (20) from the provisions of ADEQ rule R9-3-101 that
we are removing from the SIP, and (3) the addition of ADEQ rules R9-3-
310 and R9-3-312 to the list of rules in Table 2. Additional detail
regarding these technical corrections is provided in response to
comments 13 through 15 in our Response to Comments document.
C. Public Comments and Responses
Our March 18, 2015 proposed rule included a 30-day public comment
period that ended on April 17, 2015. We received 3 written comments,
one each from the Office of Robert Ukeiley, the Salt River Project
Agricultural Improvement and Power District (SRP), and ADEQ. Copies of
each comment have been added to the docket for this action and are
accessible at www.regulations.gov. Our Response to Comments document in
the docket for this action contains a summary of all comments received
and the EPA's responses to the comments. Below we provide the major
issues raised by commenters and our responses to those comments.
Comment 1:
The Federal Register notice does not make it clear if the Arizona
rules proposed to be approved into the SIP include the PM2.5
increments. The EPA must disapprove this rule if it does not include
the PM2.5 increments.
Response 1:
In the EPA's March 18, 2015 Federal Register notice, we proposed to
approve ADEQ rule R18-2-218 into the Arizona SIP, and stated ``ADEQ
adopted the increments, or maximum allowable increases, in R18-2-218--
Limitation of Pollutants in Classified Attainment Areas.'' 80 FR 14044,
14045, 14051. The PM2.5 increments are included in Section A
of ADEQ rule R18-2-218. As such, ADEQ submitted, and we are approving
into the Arizona SIP, ADEQ rule R18-2-218 containing the
PM2.5 increments.\5\
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\5\ Our proposed action also points out that certain terminology
used in ADEQ's PSD rules with respect to the increments is not
clear, and that ADEQ's rules contain provisions that allow for
exclusions from increment consumption for certain temporary
emissions that do not conform to the analogous federal regulatory
requirements. These issues provided a basis for our proposed limited
disapproval of ADEQ's PSD program. See Section II.C.1 of the
preamble at 80 FR 14051. Neither this commenter nor any other
commenter addressed these specific issues, thus we continue to
believe that these issues are deficiencies that ADEQ must correct
for full approval of the PSD portion of the ADEQ NSR SIP submittal,
and these issues provide a basis for our final limited disapproval.
---------------------------------------------------------------------------
Comment 2:
ADEQ states that its methodology for establishing minor NSR
thresholds was valid for all areas under ADEQ's jurisdiction. The CAA
does not impose strict, specific requirements on NSR programs for minor
sources, as it does for major NSR. Rather, section 110(a)(2)(C)
generally requires that each state include a program regulating the
modification and construction of any stationary source as necessary to
assure achievement of the NAAQS. The sizes of minor source facilities,
buildings, structures, or installations are assessed and compared to
threshold levels to determine whether their potential to emit is so
high as to affect the NAAQS. Each state establishes its own threshold
levels to define the limits of its minor NSR regulations to create an
effective pollution control strategy without also creating unnecessary
regulatory burden.
Citing the EPA's proposed Tribal NSR Rule, ADEQ states that in the
past, the EPA has asserted that threshold levels are appropriate where
``sources and modifications with emissions below the thresholds are
inconsequential to attainment and maintenance of the NAAQS.'' \6\ In
creating a federal minor NSR program for Indian Country, the EPA
emphasized the importance of a cost-effective plan, as well as one that
reduces the burden on sources and reviewing authorities.
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\6\ 71 FR 48696, 48701 (Aug. 21, 2006).
---------------------------------------------------------------------------
ADEQ set an adequate, yet cost-effective threshold level of one
half the significant emission rate (SER) for nonattainment areas. Just
as the EPA did in the Tribal Minor NSR Rule, ADEQ identified the level
at which a lower threshold merely creates a larger pool of regulated
minor sources without
[[Page 67323]]
substantially reducing emissions. Research data provided by a
consultant was used to make an informed determination which threshold
levels would in fact be most cost-effective, while still achieving the
goals of the minor source program. ADEQ included a table of the results
provided by its contractor for two potential NSR threshold
scenarios.\7\ Scenario 1 illustrates the impact of a minor threshold of
one half the SER and Scenario 2 illustrates the impact of a threshold
set at one quarter the SER. Lowering the threshold beyond one half the
SER essentially doubles the percentage of sources regulated, which
certainly increases the state's ability to reach more minor sources.
However, regulating more sources does not necessarily translate to
effective emissions reductions. Rather there is a diminishing return on
emission reductions as the threshold level is pushed further down to
include sources with fewer emissions.
---------------------------------------------------------------------------
\7\ The EPA provided the same table in its TSD for this action.
See Table 5 of the TSD--Results of ADEQ's Stationary Source
Distribution Analysis.
---------------------------------------------------------------------------
ADEQ illustrated this statement through a figure provided in its
comments showing a comparison of potential threshold levels and
relative impact, by pollutant.\8\ The figure compares the percent of
emissions regulated with the percent of sources regulated at the two
NSR exemption scenarios considered by ADEQ. ADEQ states that the slopes
between the significance level points in the graph for each pollutant
illustrate the incremental percentage of emissions that would be
covered when the threshold level is moved from one half to one quarter.
Both possible threshold options would result in a relatively large
percentage of emissions from minor sources becoming subject to
regulation. However, the average emissions covered per source decreases
significantly for all additional sources that fall below one half of
the significant level. The disproportionate effect between the changes
in the amount of sources relative to the change in the amount of
emissions covered provides a firm basis for ADEQ's decision. The
thresholds in ADEQ's minor NSR program meet federal requirements
without creating a system in which the burdens of regulation would
outweigh the benefits to air quality.
---------------------------------------------------------------------------
\8\ See ADEQ's April 17, 2015 comment letter at 14.
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Response 2:
As noted by ADEQ, CAA section 110(a)(2) generally requires that
each state include a program regulating the modification and
construction of any stationary source as necessary to assure
achievement of the NAAQS. While we appreciate ADEQ's comments on this
issue, to date, ADEQ has not provided sufficient information about the
nature, scope and emissions that are contributing to nonattainment in
the areas subject to ADEQ's jurisdiction to change our proposed
determination that ADEQ has not provided an adequate basis for its NSR
exemption thresholds as applied in such nonattainment areas.
The implementing regulations for the minor NSR program make clear
that SIPs must include legally enforceable procedures that enable the
decisionmaking authority to determine whether the construction or
modification of stationary sources will result in a violation of
applicable portions of the control strategy or interfere with
attainment or maintenance of the NAAQS, and that such procedures
include means by which the decisionmaking authority can prevent such
construction or modification if it will result in such violation or
interference. 40 CFR 51.160(a) and (b). Further, 40 CFR 51.160(e)
provides:
The procedures must identify types and sizes of facilities,
buildings, structures or installations which will be subject to
review under this section. The plan must discuss the basis for
determining which facilities will be subject to review.
Under CAA section 110(a)(2) and 40 CFR 51.160(e), we agree with
ADEQ that States are not necessarily required to regulate all
stationary sources under the minor NSR program. States can exempt from
review those stationary sources with emissions that they can
demonstrate would not pose a threat to the attainment or maintenance of
the NAAQS, thereby satisfying the requirement in CAA section
110(a)(2)(C) that their minor NSR program regulate the modification and
construction of any stationary source within the areas covered by the
plan as necessary to ensure that the NAAQS are achieved. The EPA's
interpretation was discussed in the proposal for our Tribal Minor NSR
Rule:
A review of several State minor NSR programs indicated that a
number of State programs have established cutoff levels or minor NSR
thresholds, below which sources are exempt from their minor NSR
rules. We believe that such an approach is also appropriate in
Indian country. Section 110(a)(2)(C) of the Act requires minor NSR
programs to assure that the NAAQS are attained and maintained.
Applicability thresholds are proper in this context provided that
the sources and modifications with emissions below the thresholds
are inconsequential to attainment and maintenance of the NAAQS. For
each pollutant, only around 1 percent (or less) of total emissions
would be exempt under the minor NSR program.
Review of New Sources and Modifications in Indian Country, Proposed
Rule, 71 FR 48696, 48703 (Aug. 21, 2006); see also Review of New
Sources and Modifications in Indian Country, Final Rule, 76 FR 38758
(finding that sources with emissions below the NSR exemption thresholds
selected by the EPA in the Tribal Minor NSR Rule would be
inconsequential to attainment or maintenance of the NAAQS). We note
that in our Tribal NSR Rule, ``the selected minor source thresholds
distinguish between minor stationary sources of regulated NSR
pollutants located in nonattainment areas and attainment areas,'' with
lower thresholds in nonattainment areas. 71 FR at 48702; see 76 FR at
38758 (finalizing thresholds as proposed).
In our proposed action on ADEQ's NSR SIP submittal, we found
deficiencies in the basis ADEQ provided for determining which sources
would be subject to review under its minor NSR program under 40 CFR
51.160(e), applying the statutory and regulatory standard discussed
above. 80 FR at 14049. These deficiencies provided a basis (among other
bases) for our proposed limited disapproval of ADEQ's minor NSR
program. As stated in our proposal, we found ADEQ's general approach to
meeting 40 CFR 51.160(e) acceptable. However, we proposed a limited
disapproval for three aspects of ADEQ's minor NSR program under 40 CFR
51.160(e): The adequacy of ADEQ's NSR exemption thresholds for
nonattainment areas; certain exemptions for agricultural and fuel
burning equipment; and the lack of any basis for the PM2.5
NSR exemption threshold in any areas under ADEQ's jurisdiction. None of
the comments on our proposal addressed our proposed limited
disapprovals related to agricultural and fuel burning equipment
exemptions or the missing explanation in the submittal for the
PM2.5 NSR exemption threshold. As such, we continue to
determine that these two issues warrant a limited disapproval, and
further consider ADEQ's comments as they apply to the basis provided
for ADEQ's NSR exemption thresholds for pollutants in nonattainment
areas.\9\
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\9\ We note that the reasoning the EPA provides in these
responses to comments concerning NSR exemption thresholds in
nonattainment areas would apply equally to our review of the basis
for NSR exemption thresholds for PM2.5 in nonattainment
areas.
---------------------------------------------------------------------------
ADEQ's comments focus largely on the argument that expanding its
minor
[[Page 67324]]
NSR program to cover even smaller sources (i.e., sources with emissions
of approximately \1/4\ of the PSD significant emission rates) would
result in diminishing returns on emission reductions. ADEQ argues that
while more emissions would be regulated under such an approach, in some
instances, this would result in significantly more stationary sources
becoming subject to the program. In the case of VOC, for example, the
percentage of all stationary sources regulated would approximately
double from 8% to 16%. ADEQ appears to reason that while ADEQ would be
able to regulate more emissions with such a lower threshold, the types
of projects brought into the program would be smaller and less likely
to be regulated in a way to achieve useful emission reductions.
However, as discussed above, our determination of whether a minor NSR
program is sufficient to meet CAA SIP requirements is based on whether
the State has provided an adequate basis that the exempt emissions do
not need to be reviewed to ensure attainment and maintenance of the
NAAQS in the particular geographic areas covered by the program because
they are inconsequential to attainment or maintenance, considering the
particular air quality concerns in such areas. The information provided
by ADEQ to date, including the amount of sources regulated as compared
with the volume of emissions per such source, does not demonstrate that
the adopted thresholds are those necessary to assure attainment and
maintenance of the NAAQS. For example, if an area happens to have a
large volume of sources in a particular source category that are
typically minor sources but emit the pollutants that contribute to
nonattainment, then regulation of those sources may be necessary to
assure attainment and maintenance of the NAAQS in that area. The
thresholds established in the Tribal NSR Rule exempted around 1 percent
of total emissions, while exempting from 42 percent to 76 percent of
sources, depending on the pollutant. 76 FR at 68758.
We recognize that the reference that the EPA made in its proposed
action to ADEQ's submittal not providing a clear basis for concluding
that its NSR exemption thresholds would ensure that a ``sufficient
percentage of minor sources'' would be subject to review in
nonattainment areas, rather than referring to a ``sufficient percentage
of minor source emissions,'' was imprecise and may have led to
confusion about the nature of the EPA's concern. As such, we are
clarifying that our disapproval is related to ensuring that ADEQ's NSR
program exempts from review only those sources with emissions that do
not pose a threat to attainment and maintenance of the NAAQS because
they are inconsequential to attainment or maintenance. The particular
percentage of stationary sources that are being regulated would
generally not be an adequate basis under 40 CFR 51.160(e) for
determining the sizes and types of stationary sources that will be
subject to NSR review as necessary to ensure compliance with CAA
section 110(a)(2) and 40 CFR 51.160(a) and (b). As noted, the Tribal
NSR Rule exempted as many as 76 percent of the sources of a pollutant,
but required review of about 99% of total emissions. 76 FR at 38758. In
this case, ADEQ has not shown that the emissions exempt from its NSR
program will not threaten attainment and maintenance of the NAAQS in
its nonattainment areas. Accordingly, after consideration of ADEQ's
comments, we continue to find that a limited disapproval of ADEQ's
program under 40 CFR 51.160(e), as it pertains to the NSR exemption
threshold for nonattainment areas, is necessary.
As stated in our proposal, in addressing this deficiency, ADEQ does
not necessarily have to consider overall lower NSR exemption thresholds
in nonattainment areas, see 80 FR 14049 n. 13, although, as noted, the
Tribal NSR Rule established lower thresholds for nonattainment areas.
76 FR at 38758. For example, ADEQ could provide further analysis to
demonstrate that the adopted thresholds are protective of the NAAQS in
nonattainment areas, or ADEQ could consider a different approach, such
as requiring minor sources in nonattainment areas subject to a pre-
existing SIP requirement for the nonattainment pollutant, or its
precursors, to be subject to review under ADEQ's registration program.
In addressing this limited disapproval issue, we recommend that ADEQ
focus its consideration on the contribution that emissions from minor
stationary sources with emissions below its currently adopted NSR
exemption thresholds are expected to make with respect to attainment
and maintenance of the NAAQS in nonattainment areas.
In addition, we wish to clarify that while the EPA's proposed
rulemaking for the Tribal NSR program discussed cost-effectiveness and
attempted to strike a ``balance between environmental protection and
economic growth,'' it also recognized the need for exemption thresholds
to ensure ``that sources with emissions below the proposed minor NSR
thresholds will be inconsequential to attainment and maintenance of the
NAAQS.'' 71 FR at 48703. See also 76 FR at 38758. The EPA recognized
the overarching need for standards stringent enough to ensure NAAQS
protection, and agreed to ``consider changing the minor NSR thresholds
as appropriate'' to ensure that they are sufficiently protective. 76 FR
at 38759. Thus, cost-effectiveness is not a relevant criterion for
determining whether a minor NSR program's exemption thresholds will
assure attainment and maintenance of the NAAQS, and the test is not
whether the benefits of the program outweigh the burdens of regulation,
but whether the state's program meets the requirement in CAA section
110(a)(2)(C) to ``assure that national ambient air quality standards
are achieved.''
Comment 3:
SRP and ADEQ state that the EPA may not substitute its policy
preferences for ADEQ's in proposing to disapprove ADEQ's minor NSR
program with respect to nonattainment areas. There are no regulatory
provisions or CAA statutory provisions that specify that a State must
regulate a ``sufficient percentage'' of minor sources in nonattainment
areas. The EPA's objection appears to be based on its own policy
preferences, and the EPA simply lacks authority to substitute its
preferences for those of the State. The EPA points to no flaws in the
reasoning behind the analysis, nor does the EPA provide an alternative
analysis demonstrating that modifications or construction of minor
sources of a certain size or type have caused air quality concerns
within ADEQ's jurisdiction.
Further, each state, region, and control area encounters unique
circumstances that contribute to air quality issues, as well as the
strategies necessary to comply with the requirements of the CAA. At
page 14049 n. 12 of the proposal, which accompanied a generalized
comparison to other states, the EPA referenced threshold levels for
Sacramento, California. It is erroneous for the EPA to compare
Arizona's minor NSR program with that of California, due to the
extraordinary severity of the nonattainment problems in California. The
EPA's implication that ADEQ should create a minor source NSR program
that looks and functions like other states, and particularly
California, is an improper basis for disapproval.
ADEQ also asserts that the EPA has advanced no reason for
concluding that ADEQ's analysis is any less valid for nonattainment
areas than it is for attainment areas.
[[Page 67325]]
Response 3:
Contrary to the commenters' assertions, our proposed limited
disapproval of ADEQ's program concerning the NSR exemption threshold
for nonattainment areas was not based on a policy preference by the EPA
to regulate ``more'' sources in nonattainment areas. As explained in
detail in our response to comment 2, the EPA's proposed disapproval
based on 40 CFR 51.160(e) stemmed in part from the lack of sufficient
justification in ADEQ's NSR submittal to support its chosen thresholds
for coverage of the minor NSR program in nonattainment areas as
required by 40 CFR 51.160(e) and CAA section 110(a)(2). It is the
State's obligation to demonstrate that emissions from sources exempt
under its chosen NSR exemption threshold will not pose a threat to
attainment or maintenance of the NAAQS. We found at the time of our
proposal that ADEQ had not done so with respect to the NSR exemption
thresholds in nonattainment areas, and we continue to find that this is
the case.\10\
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\10\ We addressed the comment concerning the reference in the
EPA's proposal to regulation of a ``sufficient percentage of minor
sources'' in our response to comment 2.
---------------------------------------------------------------------------
Our March 18, 2015 proposed action made clear that ADEQ could
consider various options for addressing this deficiency and we did not
mandate that ADEQ adhere to a particular policy choice of the EPA in
this regard. 80 FR at 14049 and n. 13. See also response to comment 2.
The EPA agrees with the commenters that ADEQ has the discretion to
determine the types and sizes of sources that need to be regulated
under its NSR program to attain and maintain the NAAQS. But ADEQ, like
other States, must provide a reasoned basis for the scope of emissions
(and stationary sources of such emissions) regulated under its program
that demonstrates that exemption of such emissions from NSR review will
not threaten the attainment and maintenance of the NAAQS in
nonattainment areas.
Air quality concerns in nonattainment areas differ from those in
attainment areas and thus the measures necessary to attain and maintain
the NAAQS may be more stringent in nonattainment areas than in
attainment areas. When an area is already in nonattainment with a NAAQS
for a particular pollutant, it is logical to conclude that relatively
low levels of emissions increases of that nonattainment pollutant may
well contribute to nonattainment and interfere with achievement of the
NAAQS, while a source with the same level of emissions in an attainment
area may pose little threat to maintaining the NAAQS. Thus, SIPs may
need to provide greater or more detailed justification for exempting
smaller sources of emissions from NSR review in nonattainment areas,
depending on the particular air quality concerns in the area at issue.
Indeed, as noted, the EPA's Tribal NSR Rule established more stringent
thresholds for minor NSR in nonattainment areas, in most cases at 50%
of the thresholds for attainment areas. 76 FR 38758 (Table).
ADEQ's jurisdiction covers both attainment and nonattainment areas,
and ADEQ's analysis supporting its NSR exemption thresholds made no
distinction between these types of areas nor did it provide additional
information to support the thresholds in nonattainment areas under
ADEQ's jurisdiction. For example, ADEQ's analysis indicated that it
would exempt approximately 65% of CO emissions, 78% of SO2
emissions, and 40% of VOC emissions from review under its NSR program.
By comparison, the EPA's analysis for the Tribal Minor NSR program,
cited by ADEQ in its analysis, demonstrated that the EPA anticipated
exempting around 1% of stationary source emissions from review under
NSR, based on National Emissions Inventory data for all stationary
point source emissions in both attainment and nonattainment areas. As
such, ADEQ did not provide enough detail to demonstrate that NSR review
of emissions from the exempted sources would not be necessary for
attainment and maintenance of the NAAQS in nonattainment areas because
sources below the thresholds would be ``inconsequential to attainment
or maintenance of the NAAQS.'' 76 FR at 38758. Accordingly, we found
that ADEQ had not provided an adequate basis under 40 CFR 51.160(e) for
its NSR program exemption thresholds as they pertain to nonattainment
areas.
In the case of attainment areas, the EPA is approving the basis
provided by ADEQ for its selected NSR exemption thresholds. We find it
reasonable to conclude, based on the information and analysis provided
by ADEQ, that expanding the NSR program to cover more emissions in
areas that are already attaining the NAAQS will ensure that those areas
will continue to attain and maintain the NAAQS. We cannot reach the
same conclusion for nonattainment areas where the minor sources in a
particular nonattainment area may, in fact, significantly contribute to
nonattainment in that area.\11\
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\11\ We acknowledge that ADEQ's analysis explained that sources
that contribute to noncompliance with the SO2 NAAQS are
well-defined, large industrial sources already subject to the
permitting program. However, ADEQ's analysis did not provide
information or details to support these statements or otherwise
provide information sufficient to allow the EPA to reach the
conclusion that the NSR exemption thresholds selected by ADEQ exempt
only those stationary sources with emissions that do not pose a
threat to attainment and maintenance of the NAAQS in nonattainment
areas.
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The reference in our proposal to the approaches taken by other
permitting programs, including a California agency, with respect to NSR
exemption thresholds in nonattainment areas is not an indication that
the EPA believes that such approaches or thresholds are required for
ADEQ, but simply information showing that it is common for agencies in
nonattainment areas to find it necessary to regulate more emissions. In
providing this information, the EPA was not suggesting that there was a
particular percentage of emissions that should be regulated, but that
other nonattainment areas have found it necessary to exempt fewer
emissions from their programs (including Maricopa County, Arizona,
Colorado, and the EPA's Tribal Minor NSR rule, which were also
referenced in our proposed action).\12\ It was ADEQ's lack of
demonstration that its selected thresholds are adequate to ensure
attainment and maintenance of the NAAQS in light of the specific air
quality issues in the nonattainment areas under its jurisdiction that
led to our proposed disapproval.
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\12\ There was a typographical error in our FR notice that
referenced a ``Table 3,'' when there was not a Table 3 in the
Federal Register notice. The notice should have referenced Table 3
of our TSD.
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In sum, the EPA did not conclude that ADEQ's NSR exemption
thresholds are necessarily deficient, or suggest that some other
agency's threshold must be applied. The EPA's proposed limited
disapproval for ADEQ's NSR exemption thresholds for nonattainment areas
under 40 CFR 51.160(e) relates only to the fact that ADEQ had not
provided an adequate basis for the thresholds that were set for these
areas. As discussed in response to comment 2, our final limited
disapproval is also based on this finding.
Comment 4:
ADEQ submitted comments related to the EPA's proposed limited
disapproval of ADEQ's NSR SIP submittal for its use of the term
``proposed final permit.'' ADEQ explains that the purpose of allowing
sources to construct after issuance of a proposed final permit--the
version of the permit that ADEQ
[[Page 67326]]
forwards to the EPA for review under the title V program for title V
sources--is to ensure that Arizona's unitary permit program does not
place restrictions on Arizona industries that they would not face in
jurisdictions with binary permitting programs. Under a binary program,
separate permits are issued to construct and operate, and only permits
to operate are subject to the EPA's review under title V. Thus a source
in a jurisdiction with a binary program ordinarily would have the
authority to proceed with construction under a construction permit
before the EPA's review of the title V permit or permit revision
occurred.
ADEQ specifically takes issue with the EPA's proposed determination
that the program does not provide ADEQ with clear authority to prevent
construction or modification before it issues a final decision on the
request for authority to construct as is required per 40 CFR 51.160(a)
and (b). 80 FR at 14048. ADEQ states that this objection is invalid for
two reasons. First, 40 CFR 51.160(b) does not require a minor NSR
program to include authority to prevent construction ``before [an
agency] issues a final decision.'' It requires only that the program
include procedures by which the agency ``will prevent . . .
construction or modification.'' The Arizona program manifestly includes
such procedures: ADEQ can prevent construction of a source that
threatens the NAAQS or control strategy by denying the permit
application before a proposed final permit is issued. No more is
required. Second, by ``final'' the EPA appears to mean subject to
administrative and judicial review. See 80 FR at 14053. The EPA
maintains that although ADEQ has issued guidance stating that it ``will
treat [a] proposed final permit as a final, appealable agency action,''
the rule itself is not sufficiently clear to be fully approved. 80 FR
at 14048.
The EPA, however, has mischaracterized ADEQ's guidance. ADEQ did
not state that it ``will treat'' proposed final permits'' as appealable
agency actions. Rather, the Department stated that it ``must'' do so.
Under Arizona administrative law, an ``appealable agency action'' is
defined as ``an action that determines the legal rights, duties or
privileges of a party.'' A.RS. Sec. 41-1092(3). Because a proposed
final permit or permit revision under the revised rules determines the
applicant's right to construct, it must be treated as an appealable
agency action separate from the issuance of the final permit or permit
revision. ADEQ must therefore issue a notice of appealable agency
action under A.R.S Sec. 41-1092.03 for both the proposed final permit
or permit revision, as well as the final permit or permit revision.
ADEQ states that there is no ambiguity under Arizona law (which
mirrors the administrative law of most states). Under the clear terms
of ADEQ's regulations, a proposed final permit confers a right to
construct and is therefore appealable.
Response 4:
The EPA appreciates ADEQ's comments concerning the question of
whether ADEQ's NSR program provides for the issuance of a final NSR
decision prior to sources being allowed to begin construction. Our
proposed action on ADEQ's NSR SIP submittal stated that certain sources
were allowed to begin construction upon issuance of a proposed final
permit, and that we believed that ADEQ's regulations were ambiguous as
to whether issuance of a ``proposed final permit'' was a final NSR
decision. As a result, we proposed to find that ADEQ's NSR SIP
submittal did not satisfy several related CAA requirements, and those
deficiencies provided some of the bases for our proposed limited
disapproval of ADEQ's PSD program, NA-NSR program, and minor NSR
program.
The EPA continues to believe that the CAA and its implementing
regulations require that PSD and NA-NSR programs must provide for the
issuance of final NSR permit decisions imposing permit conditions
necessary to ensure compliance with the applicable NSR program
requirements before sources subject to those programs may begin
construction. We also interpret the CAA to require that PSD programs
provide an opportunity for judicial review of PSD permit decisions. See
generally CAA sections 110(a)(2)(C), 165, 172(c)(5), 173; 40 CFR
51.165(a)(2), 51.166(a)(7)(iii), 166(q)(2)(vii).\13\
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\13\ The notice for our proposed action noted discussed the fact
that we interpret the CAA to require an opportunity for judicial
review of a decision to grant or deny a PSD permit, whether issued
by the EPA or by a State under a SIP-approved or delegated PSD
program. See 80 FR 14053.
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The CAA and its implementing regulations also require that minor
NSR programs provide for legally enforceable procedures including means
by which the Agency responsible for final decisionmaking on an
application for approval to construct or modify has authority to
prevent such construction or modification if such construction or
modification will result in a violation of applicable portions of the
control strategy or will interfere with the attainment or maintenance
of a NAAQS. CAA section 110(a)(2)(C), 40 CFR 51.160(a)-(b). We continue
to believe that decisionmaking authorities must make final NSR
decisions for minor sources, as well as major sources, subject to their
NSR program prior to allowing sources to begin construction in order to
satisfy this requirement that the plan provide for such ``legally
enforceable procedures.'' \14\
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\14\ We agree that ADEQ has authority to decline to issue a
proposed final permit for a particular source if it finds that the
emissions from such source would result in a violation of applicable
portions of the control strategy or would interfere with the
attainment or maintenance of the NAAQS. However, in cases where a
permit requirement would be needed to ensure compliance with the
NAAQS for a particular source, if such a permit decision were not
final, binding and enforceable at the time construction of the
source was authorized, there would not be a legally enforceable
procedure in place to prevent construction of that source in a
manner that could violate the NAAQS as required by 40 CFR 51.160.
---------------------------------------------------------------------------
The EPA acknowledges the interpretation that ADEQ recently provided
to clarify that ADEQ must treat ``proposed final permits'' as
``appealable agency actions,'' which are defined under Arizona law as
actions that ``determine[] the legal rights, duties or privileges of a
party'' pursuant to A.R.S. section 41-1092(3). ADEQ Memorandum--
Proposed Final Permits to Be Treated as Appealable Agency Actions,
dated February 10, 2015. ADEQ also provided additional clarifications
after the end of the public comment period, specifically stating that
``[p]roposed final permits are enforceable at the time that the permits
are issued.'' \15\ After further review of this issue and consideration
of ADEQ's comments and interpretation of its regulations, and in
reliance on ADEQ's stated interpretation of its regulations, we have
determined that ``proposed final permits'' constitute final, binding,
and enforceable NSR decisions by ADEQ that are issued before sources
may begin construction and which are immediately subject to review.
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\15\ See June 8, 2015 email ``Clarification of ADEQ's Comments
on the EPA's Proposed Action'' from Eric C. Massey, Air Quality
Division Director at ADEQ to Lisa Beckham, Air Permits Office, EPA
Region 9.
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We therefore conclude that ADEQ's NSR program provides, in all
instances, for the issuance of a final NSR decision prior to sources
being allowed to begin construction, thus this issue no longer provides
a basis for our limited disapproval of the ADEQ NSR SIP submittal.
Specifically, we agree that: (1) ADEQ's NSR program provides ADEQ with
clear authority to prevent construction or modification before it
issues a final decision on the request for authority to construct as
required by 40 CFR 51.160(a) and (b); (2) ADEQ's PSD
[[Page 67327]]
and NA-NSR programs do not allow a source to begin construction prior
to issuance of a final PSD or NA-NSR permit; and (3) ADEQ's PSD program
satisfies the CAA requirement for an opportunity for judicial review of
PSD permit decisions. We are also including the clarifying memorandum
from ADEQ dated February 10, 2015 as additional material in our final
rule.
However, we continue to recommend that ADEQ revise its regulations
to clarify that a proposed final permit is a final, enforceable, and
appealable NSR permit decision in order to minimize confusion among the
public and the regulated community. We reiterate that such a revision
is not a requirement for approval of ADEQ's NSR program into the SIP.
Comment 5:
ADEQ disagrees with the EPA's proposed limited disapproval of
ADEQ's program under 40 CFR 51.160(a)(2) and (b)(2) because rule R18-2-
334 does not require ADEQ to evaluate whether the project under review
will interfere with attainment or maintenance of the NAAQS in all
cases, and instead allows sources to apply reasonably available control
technology (RACT) in lieu of such an evaluation. ADEQ also takes issue
with the EPA's determination that R18-2-334(E) allows for too great of
Director's discretion when determining when to require a NAAQS
analysis. ADEQ believes this objection is fundamentally at odds with
the EPA's own approach to air quality impact analysis (AQIA) in the
Tribal Minor NSR Rule. The tribal rule initially imposes a case-by-case
control technology requirement, but gives the ``reviewing authority''
(which may be the EPA or a tribe with delegated authority) discretion
to conduct an AQIA. 40 CFR 51.154(c) and (d). ADEQ also cites to the
EPA's response to comments for the Tribal Minor NSR Rule where the EPA
indicated that reviewing authorities implementing the Tribal Minor NSR
Rule should be allowed the discretion to determine when an AQIA might
be needed from the applicant. See 76 FR 38761. Further, ADEQ argues
that ADEQ's rule is actually stricter and confers less discretion than
the EPA's Tribal Minor NSR Rule. ADEQ must consider the source's
emission rates, location of emission units within the facility and
their proximity to ambient air, the terrain in which the source is or
will be located, the source type, the location and emissions of nearby
sources, and background concentration of regulated minor NSR
pollutants. By comparison, the criteria in the EPA's Tribal Minor NSR
Rule states that if the reviewing authority has reason to be concerned
that the construction of your minor source or modification would cause
or contribute to a NAAQS or PSD violation, it may require the source to
conduct and submit an AQIA. (emphasis added). ADEQ believes that this
comparison demonstrates that ADEQ's discretion is far from being ``too
great;'' ADEQ's discretion under R18-2-334(E) is minimal.
Finally, ADEQ disagrees with the EPA's determination that R18-2-
334(C)(1)(a)-(b) ``appears to allow sources with lower levels of
emissions to avoid both substantive NAAQS review and RACT
requirements'' and that the state's minor NSR Program therefore fails
to ensure ``that all sources subject to review under its NSR program
will not interfere with attainment or maintenance of the NAAQS.'' This
objection is incorrect for two reasons. First, R18-2-334(C)(1)(a)-(c)
represents ADEQ's reasonable judgment that the imposition of RACT on
units with low emissions (20 percent of the source threshold) within a
source otherwise subject to RACT is not a cost-effective means of
protecting the NAAQS. Second, this provision does not, as the EPA
contends, allow sources to avoid substantive NAAQS review. This
provision clearly applies solely to sources that elect to comply with
minor NSR through installation of RACT. These sources remain subject to
the obligation to conduct an AQIA on the Director's request under R18-
2-334(E), and there is nothing in the rule to suggest that emissions
from units below the R18-2-334(C)(1)(a)-(b) thresholds would be
excluded from the AQIA.
SRP also disagrees with the EPA's proposed disapproval based on the
EPA's finding that the Director's discretion under R-18-2-334(E) was
too great, and asserts that the EPA's proposed action conflicts with
the EPA's policy on approving director discretion provisions. SRP
argues that the Director's discretion in this regard is sufficiently
specific in identifying when it applies and what criteria are to be
applied and that therefore the relevant provisions are fully approvable
into the Arizona SIP.
Response 5:
Upon review of ADEQ's comments, including clarifications regarding
how the provisions of R18-2-334(E) apply, and in reliance on ADEQ's
stated interpretation of its regulations, we no longer find that ADEQ's
minor NSR program does not satisfy 40 CFR 51.160(a)(2) and (b)(2) based
on the view that rule R18-2-334 does not require ADEQ to evaluate
whether all sources subject to review under that rule may interfere
with attainment or maintenance of the NAAQS.\16\ After the close of the
public comment period, ADEQ provided additional clarifications, stating
that it interprets R18-2-334 to ``require[] ADEQ to consider the air
quality impacts of a project, using the criteria established in R18-2-
334(E)(1) through (6), in each instance where the applicant has not
submitted an AQIA under R18-2-334(C)(2).'' \17\ ADEQ has explained that
it interprets R18-2-334 to require ADEQ to consider, for all sources
subject to R18-2-334, whether there is reason to believe that the
source could interfere with attainment or maintenance of the NAAQS.
Some sources will comply with this requirement by submitting an AQIA
under R18-2-334(C)(2). All other sources will be reviewed by ADEQ using
the criteria in R18-2-334(E), and those criteria will be used to
determine whether a more formal AQIA is necessary. That is, ADEQ does
not have discretion to determine in which instances it will or won't
apply the criteria in R18-2-334(E)(1) through (6); instead, ADEQ
interprets its regulations to require that ADEQ apply such criteria for
all sources subject to R18-2-334 where the applicant has not submitted
an AQIA. Accordingly, this issue does not provide a basis for our final
limited disapproval.
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\16\ The EPA's proposal inadvertently referred to R18-2-334(G)
instead of R18-2-334(E) when describing this issue.
\17\ See June 8, 2015 email ``Clarification of ADEQ's Comments
on EPA's Proposed Action'' from Eric C. Massey, Air Quality Division
Director at ADEQ to Lisa Beckham, Air Permits Office, EPA Region 9.
---------------------------------------------------------------------------
We would also like to clarify that our proposed limited disapproval
was not specifically related to ADEQ's choice to apply RACT for some
sources subject to R18-2-334 while allowing certain smaller sources
subject to the rule to avoid RACT. Rather, our proposed disapproval
action related only to what we understood to be the potential for
sources subject to R18-2-334 to apply RACT (or to proceed without
applying RACT for certain sources with lower emissions) in lieu of any
review by ADEQ of the source's potential impacts on the NAAQS under the
ADEQ NSR program. As discussed immediately above, this is no longer a
concern as ADEQ has explained that it must review all sources subject
to R18-2-334 to consider whether the source could interfere with
attainment or maintenance of the NAAQS.
Given our revised determination on this issue, it is not necessary
to address all the arguments made by SRP concerning this issue, but we
note that we agree with SRP (and ADEQ) that the
[[Page 67328]]
criteria ADEQ will be applying when making its determination under R18-
2-334(E) do not afford undue discretion to the Director.
Comment 6:
One commenter takes issue with the EPA's statements that finalizing
its proposed limited disapproval would trigger an obligation for the
EPA to promulgate a Federal Implementation Plan (FIP) and impose CAA
sanctions if ADEQ does not correct the alleged deficiencies within 18
to 24 months. The commenter asserts that this contradicts the statutory
limitations on the EPA's SIP-action authority under the CAA.
Section 110(c)(1) provides the EPA the authority to promulgate a
FIP in only two circumstances: (1) The State failed to make a required
SIP submission, or (2) the Administrator disapproves a SIP submission
in whole or part. Section 179(a) contains similar conditions for
imposing sanctions in nonattainment areas. The commenter claims that
the EPA interprets its authority to impose a FIP or sanctions only when
the disapproval relates to a mandatory SIP submission. In support of
this assertion, the commenter cites to one action from Region 6 of the
EPA that disapproved elements of the Texas Commission of Environmental
Quality's (TCEQ's) major NSR rule to address the 2002 NSR changes
(``[t]he provisions in these submittals . . . were not submitted to
meet a mandatory requirement of the Act. Therefore, this final action
to disapprove . . . the State submittals does not trigger a sanction or
Federal Implementation Plan clock.''). The commenter concludes that
such an interpretations of Section 110(c)(1) and Section 179(a) are
reasonable because the EPA would otherwise, for example, be required to
promulgate a FIP for disapproving a State's request to include odor
provisions in its SIP that are unrelated to NAAQS compliance.
The commenter further states that ADEQ's current SIP contains
fully-approved, minor NSR and major NSR permitting programs. As such,
the State's requested SIP revisions addressed in the EPA's proposed
action are not mandatory. The commenter further argues that the EPA
referenced no information suggesting that it made a formal call for
plan revision as required by Section 110(k)(5) of the CAA related to
its proposed limited disapproval of ADEQ's NSR SIP submittal. As such,
in general, Arizona is not under a mandatory duty to revise its
existing SIP with regards to its NSR programs. The commenter argues
that it is inappropriate for the EPA to replace a fully approved-SIP
with a program that it alleges does not fully satisfy CAA requirements
by using an approach that triggers the FIP clock and potentially
imposes sanctions. ADEQ could withdraw the requested SIP submission and
face no threat of a FIP or sanctions.
Response 6:
The EPA disagrees with the commenter's statement that the EPA's
limited disapproval in this action does not trigger a FIP clock or
potential sanctions, and disagrees that the EPA's action is
inappropriate in light of this result.
The EPA continues to believe that limited disapproval of ADEQ's NSR
SIP submittal triggers an obligation to promulgate a FIP unless ADEQ
corrects the identified deficiencies and the EPA approves the related
SIP revisions within 2 years, and that sanctions would be triggered by
the EPA's limited disapproval of ADEQ's NA-NSR program revisions based
on deficiencies related to CAA title I, Part D requirements for
nonattainment areas if ADEQ fails to remedy the identified deficiencies
so that the EPA can approve the revisions into the SIP before the
sanctions apply. As stated in the notice for our proposal, we intend to
work with ADEQ to remedy these deficiencies in a timely manner.
Importantly, we note that the EPA's other option would have been a full
disapproval of ADEQ's NSR SIP submittal, which would have required ADEQ
to continue to implement the outdated rules in its SIP while also
implementing its newer rules under State law. This would require ADEQ
and permit applicants to continue to implement and comply with two
redundant and sometimes inconsistent sets of NSR rules, contrary to
ADEQ's request to update its SIP to incorporate its newer rules and
remove its older, outdated rules.
Pursuant to section 110(c)(1) of the CAA, the EPA must promulgate a
FIP within two years after our final limited disapproval of ADEQ's NSR
SIP submittal, unless ADEQ adequately corrects the identified
deficiencies and the EPA approves the corrected program into the
Arizona SIP before that time. The commenter argues that the FIP clock
applies only when a disapproval relates to a mandatory SIP submission,
and asserts that the submitted revisions are not mandatory because
ADEQ's existing SIP contains fully-approved minor and major NSR
programs, and the revisions were not developed in response to a SIP
call under CAA section 110(k)(5). The EPA disagrees with the
commenter's argument.
Even if the EPA has not issued a SIP call under CAA section
110(k)(5),\18\ a FIP is generally required under CAA section 110(c)(1)
when the EPA disapproves a plan submission, unless the State adequately
corrects the basis for the disapproval and the EPA approves a corrected
SIP submittal in a timely manner, or the EPA determines that an
existing plan is in place that meets the relevant CAA requirements. See
AIR v. EPA, 686 F.3d 668, 675-76 (9th Cir. 2012). We note that NSR
programs consistent with CAA requirements are required elements of a
SIP. CAA Sec. Sec. 110(a)(2)(C), 161, 165, 172(c)(5), 173; 40 CFR
51.160-51.166.
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\18\ There is no existing SIP call under CAA section 110(k)(5)
that specifically pertains to the deficiencies with ADEQ's NSR
program.
---------------------------------------------------------------------------
In this case, the EPA cannot rely on provisions in the existing
Arizona SIP to adequately address the deficiencies with the ADEQ NSR
SIP submittal that we identified in our proposed rule and which form
the basis for our final limited disapproval. ADEQ must address these
deficiencies in a timely manner in order to avoid the requirement for
the EPA to promulgate a FIP. As we made clear in the notice for our
proposed action,\19\ ADEQ's NSR SIP submittal included the removal of
most of ADEQ's existing NSR program elements from the Arizona SIP.\20\
Upon our final action,\21\ there will not be an ``existing plan'' that
could potentially satisfy the specific CAA NSR requirements that the
EPA has determined are not satisfied in ADEQ's NSR SIP submittal.\22\
In general, the
[[Page 67329]]
EPA's role in reviewing SIP submittals, including the ADEQ NSR SIP
submittal, is to defer to the State's choices as to how to implement
CAA requirements provided those choices are consistent with the
pertinent CAA requirements, whether or not a program submittal is
considered ``mandatory.'' The EPA's limited approval/limited
disapproval action on ADEQ's NSR SIP submittal, including ADEQ's
request to remove old and largely outdated NSR provisions from the
Arizona SIP, allows us to approve into the SIP the State's choice to
adopt and implement its updated and strengthened NSR program while
giving ADEQ time to remedy certain deficiencies that cause us not to
grant full approval of the submittal. Furthermore, even if one assumed
arguendo that these older Arizona NSR provisions were not being removed
from the Arizona SIP, the commenter has not explained how the old NSR
provisions would, in fact, meet the NSR requirements for which the EPA
has found specific deficiencies in ADEQ's updated NSR program.\23\
---------------------------------------------------------------------------
\19\ See 80 FR at 14046-14047.
\20\ See October 29, 2012 ADEQ submittal at 4 and Table 2-1; see
also ADEQ's February 23, 2015 supplemental submittal at 3-7.
\21\ We note that the EPA's limited approval/limited disapproval
of ADEQ's NSR SIP submission allows ADEQ to use its updated NSR
rules, to the extent the EPA is granting limited approval in this
action, to carry out the NSR program. Continuing to leave old and
outdated Arizona NSR SIP elements in place would not be consistent
with ADEQ's SIP submission and request to the EPA, and would require
ADEQ and permit applicants to implement and comply with two
redundant and sometimes inconsistent sets of NSR rules. Whether ADEQ
could withdraw its ADEQ NSR SIP submittal and what consequences
would ensue is not relevant; ADEQ has not done so.
\22\ The commenter asserts that when the EPA disapproved
elements of the Texas Commission of Environmental Quality's (TCEQ's)
major NSR rule, the EPA found that the provisions in the submittals
were not submitted to meet a mandatory requirement of the Act and
thus noted that its final action to disapprove the State submittals
did not trigger a sanction or FIP clock. The TCEQ example is
inapposite, however, because our action on the ADEQ NSR SIP
submittal approves rules with identified deficiencies into the SIP
where the action in Region 6 did not. The EPA found the deficiencies
in the TCEQ submission to be separable and issued partial
disapprovals for them, resulting in a SIP that did not contain the
deficiencies. In that situation, whether the deficiencies that were
disapproved were contained in ``mandatory'' SIP submissions was
relevant because if they were ``mandatory'' then disapproval likely
would have resulted in TCEQ needing to submit another plan revision
to replace the disapproved plan elements. But because the
deficiencies were found to be separable and contained in plan
elements that were not mandatory, the EPA issued a partial
disapproval of those elements, keeping the deficiencies out of the
approved SIP and with TCEQ under no obligation to submit another SIP
revision because the disapproved plan elements were not
``mandatory.'' In contrast, the provisions including the identified
deficiencies in the ADEQ NSR SIP submittal are integrated parts of
the submittal and are being approved into the SIP as part of our
limited approval/limited disapproval action, so whether the ADEQ
plan revisions containing the deficiencies are ``mandatory'' is not
relevant and is not a basis to avoid a FIP duty or sanctions.
\23\ ADEQ noted in its submittal that its existing SIP-approved
program did not include the PM10 increments, the
NO2 increments, or updates related to the ``WEPCO'' rule
for determining when a project is a modification at an electric
generating unit. In addition, ADEQ stated that a basis for its
revisions to its minor NSR program was to correct the deficiency
that its program lacked explicit procedures designed ``to assure
that national ambient air quality standards are achieved,'' as
required by section 110(a)(2)(C) of the Act. See Appendix A of
ADEQ's October 29, 2012 SIP submittal at 1546 and 1547.
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Similarly, for deficiencies related to CAA title I, Part D
requirements for nonattainment areas, final limited disapproval of
ADEQ's NSR SIP submission will result in the application of sanctions
under CAA section 179 unless the deficiencies have been adequately
corrected before the sanctions apply.
As with its arguments concerning the FIP clock, the commenter
argues that CAA sanctions apply only when a disapproval relates to a
mandatory SIP submission, and asserts that the submitted revisions are
not mandatory because ADEQ's existing SIP contains fully-approved NSR
permitting programs, and the revisions were not developed in response
to a SIP call under CAA section 110(k)(5). The EPA again disagrees with
the commenter's argument.
Even if the EPA has not issued a SIP call under CAA section
110(k)(5), sanctions generally will apply under CAA section 179 when
the EPA disapproves a plan submission based on plan deficiencies that
relate to title I, Part D requirements, unless ADEQ adequately corrects
those deficiencies and the EPA takes action to approve a corrected plan
submittal before the sanctions apply, or the EPA determines that the
existing plan meets the applicable Part D requirements. See 40 CFR
52.31. A NA-NSR program that meets CAA requirements is a required
element of a SIP. CAA Sec. Sec. 110(a)(2)(C), 172(c)(5), 173; 40 CFR
51.165.
As discussed above, ADEQ's NSR SIP submittal included the removal
of most of ADEQ's existing NSR program elements from the Arizona SIP,
so upon the EPA's final action there will not be older NA-NSR SIP
provisions that could potentially meet the CAA NA-NSR requirements that
the EPA has determined are not satisfied in the NA-NSR program in
ADEQ's NSR SIP submittal. The EPA's limited approval/limited
disapproval action on ADEQ's NSR SIP submittal, including ADEQ's
request to remove old and largely outdated NSR provisions from the
Arizona SIP, allows us to approve into the SIP the State's choice to
adopt and implement its updated and strengthened NA-NSR program while
giving ADEQ time to remedy certain deficiencies that cause us not to
grant full approval of the submittal. Furthermore, even if one assumed
arguendo that these older Arizona NA-NSR provisions were not being
removed from the Arizona SIP per ADEQ's request, the commenter has not
explained how the old NA-NSR provisions would, in fact, meet the
specific NA-NSR requirements for which the EPA has found deficiencies
with ADEQ's updated NA-NSR program. For example, ADEQ's old SIP-
approved program did not include NOX as a precursor to
ozone.
We note that the EPA is also finalizing a partial disapproval--
rather than limited approval/limited disapproval--for a separable ADEQ
NSR program provision that is analogous to a previous federal NSR
provision that a federal Court determined is not a permissible
component of PSD programs--the PM2.5 significant monitoring
concentration (SMC). As there is no deficiency related to this issue in
the approved plan following our partial disapproval, neither a FIP
requirement nor sanctions will result from this partial disapproval
action.
The EPA's limited disapproval action is based on program elements
in ADEQ's NSR SIP submittal that do not meet CAA requirements and are
not satisfied by the existing Arizona SIP provisions that remain in
place following our final action.\24\ We wish to clarify that all of
the bases for our final limited disapproval action on the ADEQ NSR SIP
submittal must be adequately addressed in a timely manner in order to
avoid a requirement for a FIP or, for Part D deficiencies, the
application of sanctions.
---------------------------------------------------------------------------
\24\ In addition, ADEQ's NSR SIP submittal did not address the
regulation of greenhouse gases (GHGs) under the PSD program. As
discussed in the notice for our proposed action on ADEQ's NSR SIP
submittal, a FIP is currently in place in Arizona to address PSD
requirements for GHGs. See 80 FR at 14054 n.17.
---------------------------------------------------------------------------
Finally, our final limited disapproval also addresses some SIP
elements or provisions that are not required (e.g., deficiencies
concerning optional PAL provisions), but were not separable from ADEQ's
NSR SIP submittal as they were an integrated part of that submittal.
Because we are approving these provisions into the SIP, the EPA will be
obligated to implement a FIP and/or sanctions will apply (as
applicable) for such optional program elements that remain in the SIP
if the deficiencies in those elements are not corrected to ensure
consistency with CAA requirements.
Comment 7:
SRP states that to proceed using the limited approval, limited
disapproval mechanism, The EPA must make an on-the-record determination
that the disapproved elements are not severable from the approved
elements. The EPA has not made this finding or provided this
explanation in its proposed notice.
Response 7:
The EPA disagrees with this comment. The commenter cites no
authority for this unsupported proposition. Under CAA sections
110(k)(3) and 301(a) and the EPA's long-standing guidance, limited
approval and partial approval are alternatives to full approval or full
disapproval of a complete plan submission. Limited approval may be
appropriate where a plan submittal contains some provisions that meet
applicable CAA requirements and other provisions that do not, and the
provisions are not separable. Partial approval may be used where a
separable
[[Page 67330]]
portion of a plan submittal meets all applicable CAA requirements. The
EPA has discretion under the CAA to choose an appropriate approval or
disapproval mechanism for a plan submission, and there is no required
``finding'' that the provisions are not separable for a proposed or
final limited approval or limited disapproval SIP action. See
Processing of State Implementation Plan (SIP) Revisions, EPA Memorandum
from John Calcagni, Director, Air Quality Management Division, OAQPS,
to Air Division Directors, EPA Regional Offices I-X, September 7, 1992
(www.epa.gov/ttn/caaa/t1/memoranda/siproc.pdf).
Nevertheless, in general, we believe that, with the exception of
the partial disapproval of the PM2.5 SMC that we are
finalizing, the components of ADEQ's NSR SIP submittal are interrelated
and not separable from the submittal as a whole and therefore not
appropriate for partial disapproval. ADEQ has not provided us with any
basis to conclude that particular aspects of its NSR SIP submittal for
which we proposed limited disapproval are not integral or interrelated
parts of the submittal or are otherwise separable and appropriate for
partial disapproval. Further, the commenter has not demonstrated that
any portion of the ADEQ NSR SIP submittal for which we proposed limited
disapproval is, in fact, separable and appropriate for partial
disapproval rather than limited disapproval.
Comment 8:
One commenter states that the EPA's assertion that ADEQ may not
exclude certain pollutant-emitting activities from PSD misinterprets
the EPA's regulations. The commenter points to 40 CFR 51.160(e) and
states that a State may exclude activities that it anticipates will
have negligible or insignificant environmental impacts from either the
major or minor NSR permit programs. This regulatory approach makes
sense because it allows for a practical integration of the multiple
preconstruction requirements. There is no basis for requiring a State
to regulate activities with the more stringent requirements contained
in the PSD or NA NSR program when those activities fall below the
levels of concern established for the minor NSR program.
Response 8:
The regulations governing PSD and NA-NSR SIP programs contain the
fundamental requirement that such programs adopt a specified definition
for ``stationary source.'' 40 CFR 51.165(a)(1)(i), 51.166(b)(5). The
regulations require the use of the prescribed definition, and state
that deviations from the specified wording will be approved only if
``the State specifically demonstrates that the submitted definition is
``more stringent, or at least as stringent, in all respects'' as the
prescribed definition. 40 CFR 51.165(a)(1), 51.166(b). As explained in
reference to the NA-NSR program in our March 18, 2015 proposal:
ADEQ must demonstrate that its definition of stationary source is
at least as stringent as the federal definition at 51.165(a)(1)(i) in
all respects.
See 80 FR at 14056; see also 80 FR at 14054 for the PSD program. The
commenter has not addressed how ADEQ's definition would be at least as
stringent as the definitions in 51.165(a)(1)(i) and 51.166(b)(5) in
light of the exemption language referenced in our proposal, see 80 FR
at 14054, nor has ADEQ provided the necessary demonstration that its
definition of stationary source is at least as stringent as the
definition of ``stationary source'' under the federal PSD and NA-NSR
programs. Indeed, ADEQ's comments did not address this basis of our
proposed limited disapproval. We continue to find that this issue
provides a basis for limited disapproval of ADEQ's NSR SIP submittal.
We do not interpret 40 CFR 51.160(e) as allowing states to develop
less stringent definitions for these programs without the necessary
demonstration that the submitted definition is ``more stringent, or at
least as stringent, in all respects'' as the prescribed definition as
required by 40 CFR 51.165(a)(1) and 51.166(b). Section 51.160(e) does
not contain any language giving states the discretion to exclude any
type of source from the more specific major source permitting
requirements in section 51.165 and 51.166. Section 51.160(e) does not
say anything about sources that have ``negligible or insignificant
environmental impacts.'' This section simply requires that a state plan
identify the types and sizes of stationary sources that are covered by
the ``legally enforceable procedures'' required under section 51.160(a)
to review construction or modification of stationary sources. Sections
51.165 and 51.166 provide more detailed procedures that must apply to
major stationary sources. These more specific provisions in sections
51.165 and 51.166 make clear that those procedures must cover the type
and size of source covered by the definitions at 40 CFR 51.165(a)(1)(i)
and 51.166(b)(5).
Comment 9:
One commenter takes issue with our proposed limited disapproval of
ADEQ's definition of projected actual emissions on the basis that it
does not specifically require malfunction emissions to be included in
the post-change projection. The EPA has not shown how ADEQ's exclusion
of this term from ADEQ's definition makes the definition less stringent
than the Federal rules. Malfunctions, by definition, are emissions
associated with an unpredictable and not reasonably preventable event.
In this respect, it is axiomatic that a source cannot reasonably
project emissions that it cannot predict. By excluding malfunctions
from its projected actual emissions procedure, ADEQ recognizes the
EPA's own interpretation of ``malfunctions'' and is no less stringent
than the federal definition. The EPA's proposed action also is
inconsistent with other Regional Office SIP approvals that have
approved definitions of ``projected actual emissions'' that do not
require inclusion of malfunction emissions.\25\ Moreover, the
comparable paragraph in the Federal definition of ``projected actual
emissions'' merely clarifies that projected actual emissions includes
all post-change emissions. The EPA could approve ADEQ's ``projected
actual emissions'' definition by severing and not acting on paragraph
R18-2-401(20)(b)(iii) and the definition would not lose its intended
meaning.
---------------------------------------------------------------------------
\25\ See, e.g., The EPA's approval of Georgia's PSD program,
Georgia's PSD program at 391-3-1; and the EPA's approval of South
Carolina's regulation at Chapter 7 Regulation 62.5.
---------------------------------------------------------------------------
Response 9:
The commenter asserts that the EPA has not shown that ADEQ's
exclusion of malfunction emissions from the definition of ``projected
actual emissions'' makes the definition less stringent. However, ADEQ
has the burden of demonstrating that its alternative definitions are
not less stringent than the ones in the EPA's regulation. See 40 CFR
51.165(a)(1), 51.166(b). ADEQ's definitions under the PSD and NA-NSR
programs warrant a limited disapproval because the EPA cannot
reasonably conclude that ADEQ's definition is at least as stringent as
the definitions in 40 CFR 51.165(a)(1) and/or 51.166(b). We note that
ADEQ's definition for ``baseline actual emissions'' specifically
includes startup, shutdown, and malfunction emissions, while ADEQ's
definition for ``projected actual emissions'' includes startup and
shutdown emissions but does not include malfunction emissions. Further,
ADEQ's definition of ``projected actual emissions'' specifically
excludes malfunction emissions associated with a shutdown. Based on the
exclusion of malfunction emissions from the
[[Page 67331]]
definition of ``projected actual emissions'', and in the absence of a
response from ADEQ on this issue, we conclude that ADEQ has not shown
that its definition is as stringent as the federal definition. In
addition, without a clearer statement from ADEQ, we cannot determine
that R18-2-401(20)(b)(iii) is separable from the rest of the ADEQ
definition of projected actual emissions without losing the apparently
intended meaning by ADEQ to specifically include startup and shutdown
but exclude malfunction emissions. We note that ADEQ's comments did not
address this basis for our proposed limited disapproval.
With respect to the claim that the EPA has previously approved PSD
or NA-NSR programs that do not include malfunctions emissions under the
definition for projected actual emissions, we note that the examples
provided by the commenter are not completely analogous. In those
programs, the definition of baseline actual emissions also excluded
malfunction emissions, whereas ADEQ has included those emissions in its
definition of baseline actual emissions. Without further justification
from ADEQ, this inconsistency across definitions makes it difficult for
the EPA to determine the relative stringency of ADEQ's definitions as
compared with those in 40 CFR 51.165 and 51.166. The commenter has not
provided any information about the nature of the demonstrations that
was supplied by the states that obtained the EPA approval for excluding
malfunction emissions from both the definition of baseline actual
emissions and projected actual emissions.
Notwithstanding prior action by the EPA in the context of SIPs in
the distinct circumstances noted above, the EPA believes the proper
interpretation of these definitions is that they require that all
emissions, pre- and post-change, including malfunctions, be included in
the definitions included in SIPs, consistent with the regulatory text,
absent a demonstration that the State's regulation is at least as
stringent as the federal definition as required by 40 CFR 51.165(a)(1)
and 51.166(b).
We note that in reviewing this comment, we also reviewed our
proposed limited disapproval related to the calculation of baseline
actual emissions under ADEQ's PALs program at R18-2-412(B)(2). See 80
FR 14053. Upon review, we determined that our proposed limited
disapproval related to the calculation of baseline actual emissions
under ADEQ's PALs program at R18-2-412(B)(2) was in error because
ADEQ's definition for baseline actual emissions at R18-2-401(2)(i)
specifically includes startup, shutdown, and malfunction emissions.
Therefore, this issue no longer provides a basis for our limited
disapproval of ADEQ's NSR SIP submittal.
Comment 10:
One commenter asserts that ADEQ's definition of regulated NSR
pollutant is not deficient for not including the final two sentences in
40 CFR 51.166(b)(49)(i)(a). This language addresses issuance of permits
before January 1, 2011. Since this SIP revision applies to changes
after this date, it is not necessary for the definition to address
circumstances that existed before SIP approval. Moreover, absence of
the language, in any case, does not affect the stringency of the
definition.
Response 10:
We agree with the commenter that while ADEQ may want to add to its
definition these two sentences that provide additional clarification,
this clarifying language is not necessary for SIP approval. As such, we
no longer find this difference to be a deficiency with ADEQ's NSR
program, and this issue is not a basis for our final limited
disapproval.
Comment 11:
The EPA proposes to disapprove ADEQ's major NSR programs because
the SIP submittal does not include a definition for ``subject to
regulation.'' Although the Federal regulations contain a definition for
``subject to regulation,'' the EPA made clear, at the time it adopted
this definition, that states may adopt (or already have) alternative
pathways for defining applicability of the major NSR program--the EPA
did not intend for codification of ``subject to regulation'' to be a
necessary element for SIP approval. See 75 FR 31514 at 31525. The EPA
chose the ``subject to regulation'' pathway because it determined that
this would allow other states to adopt the EPA's definition through
interpretation without the need for a SIP revision.
ADEQ's major source definition refers to NSR regulated pollutants.
ADEQ's definition of NSR regulated pollutant covers all pollutants ADEQ
is currently required to regulate under its major NSR programs. ADEQ's
program is not currently deficient for failing to include some unknown
air pollutant that the EPA may regulate in the future. Should the EPA
regulate such an air pollutant in the future, the EPA may follow the
pathway it used for GHGs and issue a SIP call at that time. Similarly,
ADEQ's definition of regulated NSR pollutant is not currently deficient
for failing to include some unidentified air pollutant that the EPA
might name in the future.
Response 11:
After further review and consideration of the comment, we are not
including the absence of a definition of the term ``subject to
regulation'' as a basis for our limited disapproval of the ADEQ NSR SIP
submittal. Similarly, we are also not including the omission in ADEQ's
PSD rules of language analogous to that in 40 CFR 51.166(b)(49)(iv) as
a basis for our final limited disapproval of the ADEQ NSR SIP
submittal. We note, however, that contrary to commenters' assertion,
the ADEQ SIP is deficient because ADEQ's definition of regulated NSR
pollutant does not cover all pollutants ADEQ is currently required to
regulate under its major NSR programs, in that ADEQ's program does not
regulate GHGs. However, the EPA has separately taken action to address
this deficiency. The EPA previously established a FIP for GHGs for
Arizona because ADEQ could not apply its PSD program to GHGs due to a
State law prohibition.
Comment 12:
One commenter states that we must approve ADEQ's definition of
basic design parameter because the D.C. Circuit made no finding in
State of New York v. EPA that the use of the ``basic design parameter''
definition was ``impermissible.'' This issue was not before the court
in State of New York v. EPA. At the time the EPA codified the
replacement unit provisions, the EPA relied on a previously codified
definition of ``basic design parameter'' to explain how it will
interpret the phrase ``basic design parameters'' in implementing the
replacement unit provisions. The vacatur of the ``basic design
parameters'' definition for purposes of a separate, unrelated
rulemaking has no effect on the EPA's stated interpretation of that
phrase for purposes of the replacement unit provisions. Accordingly,
the EPA's statements in the preamble remain its interpretation for
purposes of implementing those provisions. ADEQ's definition is fully
consistent with the EPA's interpretation.
Response 12:
The EPA agrees with the commenter that our proposed partial
disapproval of the definition for ``basic design parameter'' was
erroneous. We note that ADEQ did not adopt any of the other provisions
of the Equipment Replacement Provisions, which were the subject of the
D.C. Circuit Court's decision in State of New York v. EPA. We agree
with the commenter that ADEQ's adoption of a definition for basic
design parameter is acceptable in this case, and consistent with the
EPA's past statements related to this term.
[[Page 67332]]
Therefore, we are not finalizing a partial disapproval of ADEQ's
definition for basic design parameter. Our final action includes this
definition as part of ADEQ's NSR SIP submittal for which the EPA is
finalizing a limited approval/limited disapproval, but it is not a
basis for our limited disapproval.
III. Final Action
Pursuant to section 110(k) of the CAA, the EPA is finalizing a
limited approval and limited disapproval of the ADEQ rules listed in
Table 1 above. We are also approving into the Arizona SIP the Arizona
statutory provision relating to local delegation of state authority
identified in Table 1 above. In addition, we are removing from the
Arizona SIP certain rules and appendices, which are outdated and mostly
being superseded by this action. See Table 2 above. We are also
finalizing a partial disapproval of one provision of ADEQ's NSR SIP
submittal concerning the PM2.5 SMC, as the analogous federal
regulatory provision has been vacated by a federal Court.\26\ Last, we
are finalizing a limited approval (but not a limited disapproval) based
on requirements under section 189 of the Act related to PM10
and PM2.5 precursors for ADEQ's nonattainment NSR program
for the Nogales and West Central Pinal PM2.5 nonattainment
areas and the West Pinal PM10 nonattainment area.
---------------------------------------------------------------------------
\26\ The EPA's partial disapproval concerning the
PM2.5 SMC does not require follow-up action by ADEQ.
However, for clarity, ADEQ may wish to remove this disapproved
provision from its regulations.
---------------------------------------------------------------------------
Our limited approval and limited disapproval action will approve
the updated rules included in the ADEQ NSR SIP submittal into the ADEQ
portion of the Arizona SIP.\27\ However, ADEQ must correct certain
deficiencies in the approved rules in order to obtain full approval for
its NSR SIP submittal. Our TSD and proposal for this action described
in detail the deficiencies we identified with ADEQ's NSR SIP submittal
which we determined were bases for limited approval and limited
disapproval. With the exception of the changes we are making from our
proposal as described in section II.B of this preamble, we are
finalizing our action as proposed. For some of these disapproval
issues, no adverse comment was received during the public comment
period on our proposed action; where comments were received on these
issues, we addressed the comments in our Response to Comments document.
See section C of this preamble. A list summarizing the bases for our
limited disapproval is included in a memorandum to the file for this
action.\28\
---------------------------------------------------------------------------
\27\ This excludes the PM2.5 SMC provision for which
we issuing a partial disapproval, as discussed elsewhere in this
action.
\28\ ``List of Bases for Final Limited Disapproval of ADEQ NSR
SIP Submittal,'' Lisa Beckham, Air Permits Office, EPA Region 9,
June 22, 2015.
---------------------------------------------------------------------------
Our limited disapproval action will trigger an obligation on the
EPA to promulgate a FIP unless Arizona corrects the deficiencies that
are the bases for the limited disapproval, and the EPA approves the
related plan revisions, within two years of the final action.
Additionally, for those deficiencies that are bases for our limited
disapproval that relate to NA-NSR requirements under part D of title I
of the Act, the offset sanction in CAA section 179(b)(2) would apply in
the nonattainment areas under ADEQ's jurisdiction 18 months after the
effective date of a final limited disapproval, and the highway funding
sanctions in CAA section 179(b)(1) would apply in these areas six
months after the offset sanction is imposed. Neither sanction will be
imposed under the CAA if Arizona submits, and we approve, prior to the
implementation of the sanctions, SIP revisions that correct the
deficiencies that we identify in our final action.\29\ We intend to
work with ADEQ to correct the deficiencies identified in this action in
a timely manner.
---------------------------------------------------------------------------
\29\ In addition, ADEQ must also address our limited approval
under section 189 of the Act related to PM10 and
PM2.5 precursors for the Nogales and West Central Pinal
PM2.5 nonattainment areas and the West Pinal
PM10 nonattainment area. However, because this issue is
not a basis for our limited disapproval action, it does not trigger
a FIP clock or the potential for sanctions.
---------------------------------------------------------------------------
IV. Incorporation by Reference
In this rule, the EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with requirements of 1 CFR
51.5, the EPA is finalizing the incorporation by reference of the ADEQ
rules and the statutory provision described in the amendments to 40 CFR
part 52 set forth below. The EPA has made, and will continue to make,
these documents available electronically through www.regulations.gov
and in hard copy at the appropriate EPA office (see the ADDRESSES
section of this preamble for more information).
V. Statutory and Executive Order Reviews
A. Executive Order 12866, Regulatory Planning and Review and Executive
Order 13563, Improving Regulation and Regulatory Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is
therefore not subject to review under Executive Orders 12866 and 13563
(76 FR 3821, January 21, 2011).
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 Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions.
This rule will not have a significant impact on a substantial
number of small entities because SIP approvals or disapprovals under
section 110 and subchapter I, part D of the Clean Air Act do not create
any new requirements but simply approve or disapprove requirements that
the State is imposing. Therefore, because this action does not create
any new requirements, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
Moreover, due to the nature of the Federal-State relationship under
the Clean Air Act, preparation of flexibility analysis would constitute
Federal inquiry into the economic reasonableness of State action. The
Clean Air Act forbids the 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
The 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 approves or disapproves pre-
existing requirements under State or local law, and imposes no new
requirements.
E. Executive Order 13132, Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or in the distribution of power
and
[[Page 67333]]
responsibilities among the various levels of government, as specified
in Executive Order 13132.
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 the 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 final rule
does not have tribal implications, as specified in Executive Order
13175. It will not have 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. The SIP is not
approved to apply on any Indian reservation land or in any other area
where the EPA or an Indian tribe has demonstrated that a tribe has
jurisdiction. In those areas of Indian country, the rule does not have
tribal implications and will not impose substantial direct costs on
tribal governments or preempt tribal law as specified by Executive
Order 13175. Thus, Executive Order 13175 does not apply to this rule.
G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
The 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 approves or
disapproves State rules intended to implement a Federal standard.
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, the 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.
The EPA believes application of VCS to this action would be
inconsistent with the Clean Air Act.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Population
Executive Order (EO) 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.
The EPA has determined that this rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
change the level of environmental protection for any affected
populations.
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. The 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 January 4, 2016. 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 CAA section 307(b)(2)).
List of Subjects in 40 CFR Part 52
Air pollution control, Carbon monoxide, Environmental protection,
Greenhouse gases, Incorporation by reference, Intergovernmental
relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Dated: June 29, 2015.
Jared Blumenfeld,
Regional Administrator, Region IX.
40 CFR part 52 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.
0
2. Section 52.120 is amended:
0
a. By revising paragraphs (c)(27)(i)(C), (c)(43)(i)(C), (c)(45)(i)(D).
0
b. By adding paragraph (c)(47)(i)(A)(1).
0
c. By revising paragraph (c)(50)(i)(C).
0
d. By revising paragraph (c)(54)(i)(E).
0
e. By adding paragraph (c)(54)(i)(H).
0
f. By revising paragraph (c)(56)(i)(C).
0
g. By adding paragraphs (c)(59)(i)(A)(2) and (c)(161)(i)(A)(6).
0
h. By revising the introductory text of paragraph (c)(162)
0
i. By adding paragraphs (c)(162)(i)(A)(3) and (4), and (c)(162)(ii).
The revisions and additions read as follows:
Sec. 52.120 Identification of plan.
* * * * *
(c) * * *
(27) * * *
(i) * * *
(C) Previously approved in paragraphs (c)(27)(i)(A) and (B) of this
section and now deleted without replacement: R9-3-101 (all paragraphs
and nos. listed), paragraph B of R9-3-217, R9-3-301 (all paragraphs
listed), R9-3-306 (all paragraphs listed), R9-3-307 (all paragraphs
listed), R9-3-308, R9-3-310 (Paragraph C), R9-3-311 (Paragraph A), R9-
3-312, R9-3-314, R9-3-315, R9-3-316, R9-3-317, R9-3-318, R9-3-518
(Paragraphs B and C), R9-3-319, R9-3-1101, and Appendix 10 (Sections
[[Page 67334]]
A10.1.3.3, A10.1.4 and A10.2.2 to A10.3.4).
* * * * *
(43) * * *
(i) * * *
(C) Previously approved in paragraphs (c)(43)(i)(A) and (B) of this
section and now deleted without replacement: R9-3-101 (all paragraphs
and nos. listed), R9-3-301 (all paragraphs listed), R9-3-302 (all
paragraphs listed), R9-3-303, R9-3-306 (all paragraphs listed), R9-3-
307 (all paragraphs listed), and R9-3-518 (Paragraph A.1 to A.5).
* * * * *
(45) * * *
(i) * * *
(D) Previously approved in paragraphs (c)(45)(i)(A) and (B) of this
section and now deleted without replacement: R9-3-101 (all paragraphs
and nos. listed), R9-3-301 (all paragraphs listed), R9-3-306 (all
paragraphs listed), R9-3-311 (all paragraphs listed), R9-3-509, and
Appendix 10 (Sections A10.2 and A10.2.1).
* * * * *
(47) * * *
(i) * * *
(A) * * *
(1) Previously approved in this paragraph (c)(47)(i)(A) and now
deleted without replacement: R9-3-101 (all paragraphs and nos. listed).
* * * * *
(50) * * *
(i) * * *
(C) Previously approved in paragraph (c)(50)(i)(A) of this section
and now deleted without replacement: R9-3-310 (Paragraphs A and B) and
Appendix 10 (Sections A10.1-A10.1.3.2).
* * * * *
(54) * * *
(i) * * *
(E) Previously approved in paragraphs (c)(54)(i)(B) and
(c)(54)(i)(C) of this section and now deleted without replacement: R9-
3-101 (all nos. listed except no. 20).
* * * * *
(H) Previously approved in paragraphs (c)(54)(i)(B), (C), and (D)
of this section and now deleted without replacement: R9-3-301 (all
paragraphs except paragraphs I and K), R9-3-302 (all paragraphs
listed), R9-3-303 (all paragraphs listed), R9-3-304 (all paragraphs
except paragraph H), R9-3-305, R9-3-306 (paragraph A only), and R9-3-
1101 (all paragraphs listed).
* * * * *
(56) * * *
(i) * * *
(C) Previously approved in paragraphs (c)(56)(i)(A) and (B) of this
section and now deleted without replacement: R9-3-101 (Nos. 135 and
157), R9-3-218, R9-3-310, R9-3-322, R9-3-1101 and Appendix 11.
* * * * *
(59) * * *
(i) * * *
(A) * * *
(2) Previously approved in paragraph (c)(59)(i)(A)(1) of this
section and now deleted without replacement: R9-3-303.
* * * * *
(161) * * *
(i) * * *
(A) * * *
(6) Arizona Administrative Code, Title 18, ``Environmental
Quality'', chapter 2,''Department of Environmental Quality--Air
Pollution Control'', R18-2-311, ``Test Methods and Procedures,'' and
R18-2-312, ``Performance Tests,'' effective November 15, 1993.
(162) The following plan revision was submitted on October 29,
2012, and supplemented on September 6, 2013 and July 2, 2014, by the
Governor's designee.
(i) * * *
(A) * * *
(3) Arizona Administrative Code, Title 18, ``Environmental
Quality,'' chapter 2 ``Department of Environmental Quality--Air
Pollution Control,'' R18-2-101, ``Definitions,'' only definition nos.
(2), (32), (87), (109), and (122), effective August 7, 2012; R18-2-217,
``Designation and Classification of Attainment Areas,'' effective
November 15, 1993; R18-2-218, ``Limitation of Pollutants in Classified
Attainment Areas,'' effective August 7, 2012; R18-2-301,
``Definitions,'' effective August 7, 2012; R18-2-302, ``Applicability;
Registration; Classes of Permits,'' effective August 7, 2012; R18-2-
302.01, ``Source Registration Requirements,'' effective August 7, 2012;
R18-2-303, ``Transition from Installation and Operating Permit Program
to Unitary Permit Program; Registration Transition; Minor NSR
Transition,'' effective August 7, 2012; R18-2-304, ``Permit Application
Processing Procedures,'' effective August 7, 2012; R18-2-306, ``Permit
Contents,'' effective December 20, 1999; R18-2-306.01, ``Permits
Containing Voluntarily Accepted Emission Limitations and Standards,''
effective January 1, 2007; R18-2-306.02, ``Establishment of an
Emissions Cap,'' effective September 22, 1999; R18-2-315, ``Posting of
Permit,'' effective November 15,1993; R18-2-316, ``Notice by Building
Permit Agencies,'' effective May 14, 1979; R18-2-319, ``Minor Permit
Revisions,'' August 7, 2012; R18-2-320, ``Significant Permit
Revisions,'' effective August 7, 2012; R18-2-321, ``Permit Reopenings;
Revocation and Reissuance; Termination,'' effective August 7, 2012;
R18-2-323, ``Permit Transfers,'' effective February 3, 2007; R18-2-330,
``Public Participation,'' effective August 7, 2012; R18-2-332, ``Stack
Height Limitation,'' effective November 15, 1993; R18-2-334, ``Minor
New Source Review'' effective August 7, 2012; R18-2-401
``Definitions,'' effective August 7, 2012; R18-2-402 ``General,''
effective August 7, 2012; R18-2-403 ``Permits for Sources Located in
Nonattainment Areas,'' effective August 7, 2012; R18-2-404, ``Offset
Standards,'' effective August 7, 2012; R18-2-405, ``Special Rule for
Major Sources of VOC or Nitrogen Oxides in Ozone Nonattainment Areas
Classified as Serious or Severe,'' effective August 7, 2012; R18-2-406,
``Permit Requirements for Sources Located in Attainment and
Unclassifiable Areas,'' effective August 7, 2012; R18-2-407, ``Air
Quality Impact Analysis and Monitoring Requirements,'' excluding
subsection (H)(1)(c), effective August 7, 2012; R18-2-409, ``Air
Quality Models,'' effective November 15, 1993; and R18-2-412, ``PALs''
effective August 7, 2012.
(4) Arizona Revised Statutes, title 49, ``Environment,'' chapter 1
``General Provisions'', section 49-107, ``Local delegation of state
authority,'' effective July 1, 1987.
(ii) Additional materials.
(A) Arizona Department of Environmental Quality.
(1) Setting Applicability Thresholds, pages 1547-1549 in Appendix A
to ``State Implementation Plan Revision: New Source Review'' adopted on
October 29, 2012.
(2) Memorandum, ``Proposed Final Permits to be Treated as
Appealable Agency Actions,'' dated February 10, 2015, from Eric Massey,
Air Quality Division Director to Balaji Vaidyanathan, Permit Section
Manager, submitted on February 23, 2015.
(3) ``State Implementation Plan Revision: New Source Review--
Supplement,'' relating to the division of jurisdiction for New Source
Review in Arizona, adopted on July 2, 2014.
* * * * *
[FR Doc. 2015-27785 Filed 10-30-15; 8:45 am]
BILLING CODE 6560-50-P
