[Federal Register Volume 82, Number 45 (Thursday, March 9, 2017)]
[Proposed Rules]
[Pages 13084-13086]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-04683]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2017-0041; FRL-9958-92-Region 9]


Approval of Arizona Air Plan Revisions, Arizona Department of 
Environmental Quality and Maricopa County Air Quality Department

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve revisions to the Arizona Department of Environmental Quality 
(ADEQ) and Maricopa County Air Quality District (MCAQD) portions of the 
Arizona State Implementation Plan (SIP). These revisions were submitted 
by ADEQ in response to EPA's May 22, 2015, finding of substantial 
inadequacy and SIP call for certain provisions in the SIP related to 
affirmative defenses applicable to excess emissions during startup, 
shutdown, and malfunction (SSM) events. EPA is proposing approval of 
the SIP revisions because the Agency has determined that they are in 
accordance with the requirements for SIP provisions under the Clean Air 
Act (CAA or the Act).

DATES: Any comments must arrive by April 10, 2017.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2017-0041 at http://www.regulations.gov, or via email to Andrew 
Steckel, Rulemaking Office Chief at [email protected]. For 
comments submitted at Regulations.gov, follow the online instructions 
for submitting comments. Once submitted, comments cannot be removed or 
edited 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

[[Page 13085]]

submissions, and general guidance on making effective comments, please 
visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Christine Vineyard, EPA Region IX, 
(415) 947-4125, [email protected].

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

Table of Contents

I. What action is the EPA proposing today?
II. What is the background for the EPA's proposed action?
III. Why is the EPA proposing this action?
IV. Proposed Action
V. Statutory and Executive Order Reviews

I. What action is EPA proposing today?

    The EPA is proposing to approve revisions to the Arizona SIP. The 
revisions will remove from the ADEQ and MCAQD portions of the Arizona 
SIP provisions related to affirmative defenses that sources could 
assert in the event of enforcement actions for violations of SIP 
requirements during SSM events. Removal of the affirmative defense 
provisions from the SIP will make the ADEQ and MCAQD portions of the 
SIP consistent with CAA requirements with respect to this issue. ADEQ 
and MCAQD are retaining the affirmative defenses solely for state law 
purposes, outside of the SIP. Removal of the affirmative defenses from 
the SIP is also consistent with the EPA policy for exclusion of ``state 
law only'' provisions from SIPs, and will serve to minimize any 
potential confusion about the inapplicability of the affirmative 
defense provisions in federal court enforcement actions. Table 1 lists 
the rules addressed by this proposal with the dates on which each rule 
was rescinded by the ADEQ or MCAQD and submitted by the ADEQ in 
response to EPA's final action entitled ``State Implementation Plans: 
Response to Petition for Rulemaking; Restatement and Update of EPA's 
SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and 
SIP Calls To Amend Provisions Applying to Excess Emissions During 
Periods of Startup, Shutdown and Malfunction,'' 80 FR 33839 (June 12, 
2015), hereafter referred to as the ``SSM SIP Action.''

                                            Table 1--Submitted Rules
----------------------------------------------------------------------------------------------------------------
            Local agency                Rule No.              Rule title             Rescinded       Submitted
----------------------------------------------------------------------------------------------------------------
ADEQ...............................       R18-2-310  Affirmative Defense for            09/07/16        11/17/16
                                                      Excess Emissions Due to
                                                      Malfunctions, Startup, and
                                                      Shutdown.
MCAQD..............................             140  Excess Emissions...........        08/17/16        11/18/16
----------------------------------------------------------------------------------------------------------------

    On December 15, 2016 and December 21, 2016, respectively, the EPA 
determined that the submittals with respect to ADEQ R18-2-310 and MCAQD 
Rule 140 met the completeness criteria in 40 CFR part 51, appendix V, 
which must be met before formal EPA review of the submittals for 
approvability in accordance with applicable CAA requirements.

II. What is the background for the EPA's proposed action?

    On June 12, 2015, pursuant to CAA section 110(k)(5), the EPA 
published the final SSM SIP Action finding that certain SIP provisions 
in thirty-six states were substantially inadequate to meet CAA 
requirements and called on those states to submit SIP revisions to 
address those inadequacies. 80 FR 33839. As required by the CAA, the 
EPA established a reasonable deadline (not to exceed 18 months) by 
which the affected states must submit such SIP revisions. In accordance 
with the SSM SIP Action, states were required to submit corrective 
revisions to their SIPs by November 22, 2016. The EPA's reasoning, 
legal authority, and responsibility under the CAA for issuing the SIP 
call to Arizona can be found in the SSM SIP Action.
    In the SSM SIP Action, the EPA determined that two provisions in 
ADEQ Rule R18-2-310, which provide affirmative defenses for excess 
emissions during malfunctions (AAC Sec.  R18-2-310(B)) and for excess 
emissions during startup or shutdown (AAC Sec.  R18-2-310(C)) were 
substantially inadequate to meet CAA requirements. Specifically, AAC 
Sec.  R18-2-310(B) and AAC Sec.  R18-2-310(C) contain affirmative 
defense provisions that operate to alter or affect the jurisdiction of 
federal courts in the event of an enforcement action, contrary to the 
enforcement structure of the CAA in section 113 and section 304. 80 FR 
33971 (June 12, 2015).
    In the SSM SIP Action, the EPA also determined that comparable 
provisions in the MCAQD portion of the SIP were substantially 
inadequate. MCAQD Regulations provided affirmative defenses for excess 
emissions during malfunctions (MCAQD Regulation 3, Rule 140, Sec.  401) 
and for excess emissions during startup or shutdown (MCAQD Regulation 
3, Rule 140, Sec.  402). These provisions in MCAQD Rule 140 are similar 
to the affirmative defense provisions in ADEQ R18-2-310. The EPA 
concluded that these MCAQD provisions operate to alter or affect the 
jurisdiction of federal courts in the event of an enforcement action, 
contrary to the enforcement structure of the CAA in section 113 and 
section 304. See 80 FR 33972 (June 12, 2015).
    On November 17 and 18, 2016, ADEQ made timely submittals in 
response to the SSM SIP Action. As noted above, the EPA found these 
submittals complete on December 15 and 16, 2016. In the submittals, 
ADEQ is requesting that EPA revise the Arizona SIP by removal of AAC 
R18-2-310 and MCAQD Rule 140 in their entirety, thereby removing the 
affirmative defense provisions from the Arizona SIP. This approach is 
consistent with the EPA's interpretation of CAA requirements for SIP 
provisions.

III. Why is the EPA proposing this action?

    In the SSM SIP Action, the EPA made a finding of substantial 
inadequacy and issued a SIP call with respect to ADEQ AAC Sec. Sec.  
R18-2-310(B) and R18-2-310(C) and MCAQD Rule 140 Sec. Sec.  401 and 
402, and issued a SIP call with respect to these provisions pursuant to 
CAA section 110(k)(5). In response, ADEQ made SIP submittals requesting 
the EPA to remove AAC R18-2-310 and MCAQD Rule 140 from the Arizona SIP 
in their entirety. Affirmative defense provisions like these are 
inconsistent with CAA requirements and removal of these provisions 
would strengthen the SIP. Today's action, if finalized, would remove 
the affirmative defense provisions from the ADEQ and MCAQD portions of 
the EPA-approved SIP for Arizona. The EPA is proposing to find that 
these revisions are consistent with CAA requirements and that they 
adequately address the specific SIP deficiencies that the EPA 
identified in the SSM SIP Action with respect to the ADEQ and MCAQD 
portions of the Arizona SIP.

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IV. Proposed Action

    The EPA is proposing to approve the Arizona SIP revisions removing 
ADEQ R18-2-310 and MCAQD Rule 140 from the ADEQ and MCAQD portions of 
the Arizona SIP. The EPA is proposing approval of the SIP revisions 
because the Agency has determined that they are in accordance with the 
requirements for SIP provisions under the CAA. The EPA is not reopening 
the SSM SIP Action in this action and is only taking comment on whether 
this SIP revision is consistent with CAA requirements and whether it 
addresses the identified substantial inadequacy in the specific Arizona 
SIP provisions identified in the SSM SIP Action.

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve 
SIP submissions that comply with the provisions of the Act and 
applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, the EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this proposed action merely proposes to approve state 
requests as meeting federal requirements and does not impose additional 
requirements beyond those imposed by state law. For that reason, this 
proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide the EPA with the discretionary authority 
to address disproportionate human health or environmental effects with 
practical, appropriate, and legally permissible methods under Executive 
Order 12898 (59 FR 7629, February 16, 1994).

In addition, 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 (65 FR 67249, November 9, 2000).

List of Subjects in 40 CFR Part 52

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

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

    Dated: January 18, 2017.
Alexis Strauss,
Acting Regional Administrator, Region IX.
[FR Doc. 2017-04683 Filed 3-8-17; 8:45 am]
 BILLING CODE 6560-50-P