[Federal Register Volume 81, Number 84 (Monday, May 2, 2016)]
[Proposed Rules]
[Pages 26185-26188]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-10219]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2015-0187; FRL-9945-96-Region 9]


Limited Disapproval of Air Plan Revisions; Arizona; New Source 
Review; PM2.5

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing a 
limited disapproval of a revision to the Arizona Department of 
Environmental Quality (ADEQ) portion of the Arizona State 
Implementation Plan (SIP) under the Clean Air Act (CAA or Act). This 
ADEQ-submitted SIP revision primarily was intended to serve as a 
replacement of ADEQ's SIP-approved rules for the issuance of New Source 
Review (NSR) permits for stationary sources, including but not limited 
to the rules governing the review and permitting of major sources and 
major modifications under the Act. This action concerns only the major 
nonattainment NSR provisions in ADEQ's submittal as they pertain to the 
Nogales and West Central Pinal nonattainment areas for particulate 
matter with a diameter of 2.5 micrometers or less (PM2.5). 
The EPA previously finalized a limited approval for these 
PM2.5 nonattainment areas related to certain major 
nonattainment NSR permitting requirements for PM2.5 under 
the CAA, and is now also proposing a limited disapproval to set the 
stage for remedying certain deficiencies related to these requirements.

DATES: Comments must arrive by June 1, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2015-0187 at http://www.regulations.gov, or via email to 
[email protected]. For comments submitted at Regulations.gov, follow 
the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, the EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. The EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, please contact the person 
identified in the FOR FURTHER INFORMATION CONTACT section. For the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Lisa Beckham, EPA Region IX, (415) 
972-3811, [email protected].

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

Table of Contents

I. The State's Submittal
    A. What did the State submit?
    B. What is the purpose of this proposed rule?
II. The EPA's Evaluation and Action
    A. How is the EPA evaluating the submittal?
    B. Does the submittal meet the evaluation criteria?
    C. Proposed Action and Public Comment
III. Statutory and Executive Order Reviews

I. The State's Submittal

A. What did the State submit?

    On July 28, 2011 and October 29, 2012, ADEQ submitted revisions to 
the ADEQ portion of the Arizona SIP for EPA approval under the CAA. On 
May 16, 2014, ADEQ supplemented the July 28, 2011 submittal. On 
September 6, 2013, July 2, 2014, and February 16, 2015, ADEQ 
supplemented the October 29, 2012 submittal. Collectively, these 
submittals generally comprise ADEQ's current program for 
preconstruction review and permitting of new or modified stationary 
sources under ADEQ's jurisdiction in Arizona. On November 2, 2015, the 
EPA finalized a limited approval and limited disapproval, and other 
actions, for these submittals. See our final rule at 80 FR 67319 (Nov. 
2, 2015) and proposed rule at 80 FR 14044 (Mar. 18, 2015). The EPA is 
now taking further action related to these submittals. The specific 
rules that were reviewed as part of these submittals and our previous 
action, and which are the subject of this action, can be found in Table 
1 of the preamble to our November 2, 2015 final rule (80 FR 67320).
    The SIP submittals that are the subject of this action and our 2015 
proposed and final rules, referred to herein as the

[[Page 26186]]

``NSR SIP submittal,'' represent a comprehensive revision to ADEQ's 
preconstruction review and permitting program and were intended to 
satisfy the requirements under both part C (prevention of significant 
deterioration) (PSD) and part D (nonattainment new source review) of 
title I of the Act for major sources as well as the general 
preconstruction review requirements under section 110(a)(2)(C) of the 
Act. The Act's preconstruction review and permitting programs are often 
collectively referred to as ``New Source Review''.
    Please see our previous proposed and final actions for the NSR SIP 
submittal--Revisions to Air Plan; Arizona; Stationary Sources; New 
Source Review--for a detailed description of the actions taken to date 
related to these submittals, including the docket for these actions 
(Docket ID No. EPA-R09-OAR-2015-0187 at www.regulations.gov) where 
other supplementary materials are available.
    On December 28, 2012, April 29, 2013, and December 2, 2014, ADEQ's 
July 28, 2011, October 29, 2012, and July 2, 2014 submittals, 
respectively, were deemed complete by operation of law to meet the 
completeness criteria in 40 CFR part 51, appendix V, which must be met 
before formal EPA review. Each of these submittals includes evidence of 
public notice and adoption of the relevant ADEQ regulations.

B. What is the purpose of this proposed rule?

    The purpose of this EPA rulemaking is solicit comment on whether 
the major nonattainment NSR portion of ADEQ's NSR SIP submittal fully 
meets the permitting requirements for PM2.5 precursors under 
section 189(e) of the CAA. In the EPA's March 2015 proposed action on 
ADEQ's NSR SIP Submittal, we explained that we were not evaluating at 
that time whether the NSR SIP submittal would require additional 
revisions related to PM2.5 to satisfy CAA section 189(e) 
requirements, and we finalized our action accordingly in November 2015. 
We are now proposing a limited disapproval of the major nonattainment 
NSR portion of ADEQ's NSR SIP submittal for PM2.5 as it 
pertains to the statutory requirements of section 189(e).

II. The EPA's Evaluation and Action

A. How is the EPA evaluating the submittal?

    At this time the EPA is evaluating whether ADEQ's NSR SIP submittal 
meets certain permitting requirements for PM2.5 
nonattainment areas under title I, part D, subpart 4 of the CAA 
(subpart 4). At the time of our 2015 action, we did not determine that 
the submittal fully addressed section 189(e) in subpart 4, related to 
NSR permitting requirements for PM2.5 for major stationary 
sources in PM2.5 nonattainment areas, and instead finalized 
a limited approval related to subpart 4 based on this issue. For 
PM2.5 nonattainment areas, section 189(e) requires that the 
control requirements applicable under plans in effect under part D of 
the CAA for major stationary sources of PM2.5 also apply to 
major stationary sources of PM2.5 precursors, except where 
the Administrator determines that such sources do not contribute 
significantly to PM2.5 levels which exceed the standards in 
the area.

B. Does the submittal meet the evaluation criteria?

    As explained further below, in order to meet the evaluation 
criteria in CAA section 189(e) for PM2.5 as discussed above, 
ADEQ's NSR SIP submittal would need to (1) require major stationary 
sources of PM2.5 precursors (nitrogen oxides 
(NOX), sulfur dioxide (SO2), volatile organic 
compounds (VOC), and ammonia) in areas designated nonattainment for the 
PM2.5 National Ambient Air Quality Standards (NAAQS) to meet 
the same control requirements as those applicable to major stationary 
sources of PM2.5, or (2) if not including such requirements 
for any of these precursors, provide a demonstration that the 
particular precursor does not contribute significantly to 
PM2.5 levels that exceed the standard in the relevant 
PM2.5 nonattainment area. As explained in our March 2015 
proposed action on the ADEQ NSR SIP submittal, the rules in that 
submittal regulate NOX and SO2 as 
PM2.5 precursors (see 80 FR 14057). As a result, the only 
remaining element for evaluation is whether the submittal appropriately 
addresses VOC and ammonia as PM2.5 precursors.
1. Background
    On January 4, 2013, the U.S. Court of Appeals for the District of 
Columbia Circuit, in Natural Resources Defense Council (NRDC) v. EPA, 
issued a decision that remanded the EPA's 2007 and 2008 rules 
implementing the 1997 PM2.5 NAAQS. See 706 F.3d 428 (D.C. 
Cir. 2013). The 2008 EPA implementation rule addressed by the court 
decision, ``Implementation of New Source Review (NSR) Program for 
Particulate Matter Less Than 2.5 Micrometers (PM2.5)'' (the 
2008 NSR PM2.5 Rule),\1\ promulgated NSR requirements for 
implementation of PM2.5 in both nonattainment areas (under 
the nonattainment NSR program) and attainment/unclassifiable areas 
(under the PSD program). The Court of Appeals found that the EPA had 
erred in implementing the PM2.5 NAAQS in these rules for 
nonattainment areas solely pursuant to the general implementation 
provisions of subpart 1 of part D of title I of the CAA, rather than 
pursuant to the additional implementation provisions specific to 
particulate matter nonattainment areas in subpart 4 of part D of title 
I. The Court of Appeals ordered the EPA to ``repromulgate these rules 
pursuant to Subpart 4 consistent with this opinion.'' 706 F.3d at 437. 
The EPA issued a proposed rule to promulgate new generally applicable 
implementation regulations for the PM2.5 NAAQS in accordance 
with the requirements of subpart 4 and the Court's remand decision, see 
80 FR 15340 (March 23, 2015), but the EPA has not yet issued the final 
implementation rule. In the interim, however, states and the EPA still 
need to proceed with implementation of the PM2.5 NAAQS in a 
timely and effective fashion in order to meet statutory obligations 
under the CAA and to assure the protection of public health intended by 
those NAAQS.
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    \1\ 73 FR 28321 (May 16, 2008).
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2. ADEQ's NSR SIP Submittal for PM2.5 Nonattainment Areas
    ADEQ's NSR SIP submittal generally includes requirements for the 
PM2.5 nonattainment NSR program for major sources consistent 
with the provisions promulgated in the EPA's 2008 NSR PM2.5 
Rule. Specifically, ADEQ's NSR SIP submittal includes the 
PM2.5 significant emission rates at R18-2-101(130), 
regulation of certain PM2.5 precursors (SO2 and 
NOX) at R18-2-101(130), the regulation of PM10 
and PM2.5 condensable emissions at R18-2-101(122)(f), and 
the emissions offset requirements at R18-2-403(A)(3). The EPA approved 
these provisions into ADEQ's SIP as part of a limited approval and 
limited disapproval, and other actions, on November 2, 2015 (80 FR 
67319).
    Although ADEQ's NSR SIP submittal does include regulation of major 
sources of SO2 and NOX as PM2.5 
precursors under the major source nonattainment NSR program, it does 
not include rules regulating VOCs or ammonia in this manner. Nor does 
the NSR SIP submittal include a demonstration showing that

[[Page 26187]]

the regulation of VOCs and ammonia is not necessary under section 
189(e).
    The evaluation of which precursors need to be controlled to achieve 
a NAAQS in a particular nonattainment area is typically conducted in 
the context of the state's preparing and the EPA's reviewing an area's 
attainment plan SIP. In this case, there are two designated 
PM2.5 nonattainment areas in Arizona, the Nogales (portion 
of Santa Cruz County, AZ) and West Central Pinal (portion of Pinal 
County, AZ) areas. Both are designated nonattainment for the 2006 
annual PM2.5 NAAQS. However, on January 7, 2013 and 
September 4, 2013, the EPA finalized determinations of attainment for 
these areas, respectively (78 FR 887 and 78 FR 54394), which suspended 
the requirement for the state to submit, among other things, an 
attainment plan SIP for the areas.\2\ Accordingly, PM2.5 
attainment plans for SIP approval are not before EPA Region 9 for these 
areas, nor were they at the time of the EPA's proposed or final 2015 
actions on the NSR SIP submittal. In 2015, as the EPA did not have 
before it the state's analysis as to which precursors needed to be 
controlled in these areas pursuant to section 189(e) of the Act, we 
determined that we could not fully approve as complying with the Act a 
nonattainment NSR SIP that addressed only a subset of the scientific 
PM2.5 precursors recognized by the EPA. We determined that 
while ADEQ's NSR SIP submittal may not contain all of the elements 
necessary to satisfy the CAA requirements when evaluated under subpart 
4, the major source nonattainment NSR portion of the submittal 
represented a considerable strengthening of the previously approved 
Arizona SIP, which did not previously address NSR permitting for 
PM2.5 at all. Therefore, in our 2015 action, the EPA granted 
limited approval to the PM2.5 major nonattainment NSR 
provisions in ADEQ's NSR SIP submittal for the Nogales and West Central 
Pinal PM2.5 nonattainment areas based on the subpart 4 
requirements, and indicated that we would consider whether a limited 
disapproval was appropriate pertaining to these requirements when the 
EPA re-promulgated its PM2.5 regulations with respect to 
major nonattainment NSR permitting in response to the Court of Appeals' 
remand decision in the NRDC case.
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    \2\ Prior to the NRDC Court's decision, the EPA would not have 
reviewed PM2.5 attainment plan submittals for compliance 
with Section 189.
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    Although the EPA has not yet re-promulgated these PM2.5 
regulations in response to the remand decision, the EPA is now 
proposing to determine that ADEQ's NSR SIP submittal does not fully 
satisfy the major nonattainment NSR requirements for PM2.5 
under section 189(e) of the Act for the Nogales and West Central Pinal 
PM2.5 nonattainment areas, based on our finding that the 
submittal does not include rules regulating VOCs or ammonia as 
PM2.5 precursors under the major source nonattainment NSR 
program, nor does it include a demonstration showing that the 
regulation of VOCs and ammonia is not necessary under section 189(e). 
We find it is appropriate to take action now in order to proceed with 
implementation of the major source nonattainment NSR program for the 
PM2.5 NAAQS in a timely and effective fashion to address 
statutory obligations under the CAA and to assure the protection of 
public health as intended by the Act based on those NAAQS. Therefore, 
we are proposing a limited disapproval of the major source 
nonattainment NSR provisions in ADEQ's NSR SIP submittal for the 
Nogales and West Central Pinal PM2.5 nonattainment areas 
based on our finding that the submittal does not fully satisfy section 
189(e) of the Act as it relates to PM2.5 precursors. To 
address this limited disapproval, ADEQ must revise its major source 
nonattainment NSR permitting program to include VOC and ammonia as 
PM2.5 precursors, or provide a demonstration satisfying the 
requirement in section 189(e) that a particular precursor does not 
contribute significantly to PM2.5 levels that exceed the 
standard in the Nogales and/or West Central Pinal PM2.5 
nonattainment areas.

C. Proposed Action and Public Comment

    Pursuant to Section 110(k) of the Act, and for the reasons provided 
above, we are proposing a limited disapproval of the major source 
nonattainment NSR provisions of ADEQ's NSR SIP submittal for the 
Nogales and West Central Pinal PM2.5 nonattainment areas 
under section 189(e) of the Act related to PM2.5 precursors. 
The EPA is proposing this action because, although we found that the 
NSR SIP submittal met most of the applicable NSR permitting 
requirements for PM2.5 nonattainment areas, we have found 
certain deficiencies that prevent full approval. The intended effect of 
our limited disapproval action is to set the stage for remedying 
deficiencies in these regulations in a timely fashion.
    If finalized as proposed, our limited disapproval action will 
trigger an obligation on the EPA to promulgate a Federal Implementation 
Plan unless Arizona corrects the deficiencies that are the bases for 
this limited disapproval, and the EPA approves the related plan 
revisions, within two years of the final action. Additionally, the 
offset sanction in CAA section 179(b)(2) would apply in the 
nonattainment areas at issue 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. However, 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 a final action. The EPA is working 
with ADEQ to correct the deficiencies identified in this action in a 
timely manner.
    We will accept comments from the public on the proposed disapproval 
for the next 30 days.

III. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

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 and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review.

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the PRA because this action does not impose additional requirements 
beyond those imposed by state law.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action will not impose any requirements on small entities beyond those 
imposed by state law.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. This action does not impose additional requirements 
beyond those imposed by state law. Accordingly, no additional costs to 
State, local, or tribal governments, or to the private sector, will 
result from this action.

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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 on the distribution of power 
and responsibilities among the various levels of government.

F. Executive Order 13175: Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175, because 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, and will not 
impose substantial direct costs on tribal governments or preempt tribal 
law. Thus, Executive Order 13175 does not apply to this action.

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

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. This action is not subject to 
Executive Order 13045 because it does not impose additional 
requirements beyond those imposed by state law.

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

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    Section 12(d) of the NTTAA directs the EPA to use voluntary 
consensus standards in its regulatory activities unless to do so would 
be inconsistent with applicable law or otherwise impractical. The EPA 
believes that this action is not subject to the requirements of section 
12(d) of the NTTAA because application of those requirements would be 
inconsistent with the CAA.

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

    The EPA lacks the discretionary authority to address environmental 
justice in this rulemaking.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

    Dated: April 21, 2016.
Jared Blumenfeld,
Regional Administrator, Region IX.
[FR Doc. 2016-10219 Filed 4-29-16; 8:45 am]
 BILLING CODE 6560-50-P