[Federal Register Volume 86, Number 40 (Wednesday, March 3, 2021)]
[Proposed Rules]
[Pages 12310-12312]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-03753]
[[Page 12310]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2020-0735; FRL-10020-57-Region 9]
Air Plan Approval; Arizona; Miami Copper Smelter Sulfur Dioxide
Control Measures
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 State Implementation Plan (SIP). These
revisions concern emissions of sulfur dioxide (SO2) from the
copper smelter in Miami, Arizona. We are proposing to approve the
rescission of two Arizona Department of Environmental Quality (ADEQ)
Arizona Administrative Code (A.A.C.) provisions from the Arizona SIP
that are no longer needed to regulate this emission source under the
Clean Air Act (CAA or the ``Act''). We are taking comments on this
proposal and plan to follow with a final action.
DATES: Comments must be received on or before April 2, 2021.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2020-0735 at https://www.regulations.gov. For comments submitted at
Regulations.gov, follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
Regulations.gov. 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 https://www.epa.gov/dockets/commenting-epa-dockets. If you need assistance in a
language other than English or if you are a person with disabilities
who needs a reasonable accommodation at no cost to you, please contact
the person identified in the FOR FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: Kevin Gong, EPA Region IX, 75
Hawthorne St., San Francisco, CA 94105. By phone: (415) 972-3073 or by
email at [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to the EPA.
Table of Contents
I. The State's Submittal
A. Of what rule provisions did the State request rescission?
B. What was the purpose of the SIP-approved rule provisions, and
what is the purpose of the State's rescission request?
II. The EPA's Evaluation and Action
A. How is the EPA evaluating the request for rescission?
B. Does the rule rescission meet the evaluation criteria?
C. Public Comment and Proposed Action
III. Incorporation by Reference
IV. Statutory and Executive Order Reviews
I. The State's Submittal
A. Of what rule provisions did the State request rescission?
Table 1 lists the rule provisions addressed by this proposal with
the dates that they were adopted, submitted, and approved. On March 10,
2020, ADEQ submitted a formal request to the EPA requesting that the
EPA rescind these provisions from the SIP.\1\
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\1\ Letter from Daniel Czecholinski, Director, Air Quality
Division, ADEQ, to John Busterud, Regional Administrator, EPA Region
IX, RE: Miami SO2 Nonattainment Area State Implementation
Plan Revision (undated; received by EPA on March 10, 2020).
Table 1--Rule for Which Rescission From the SIP is Requested
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Local agency Citation Rule title Adopted SIP approval date
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ADEQ................ A.A.C. R18-2- Standards of March 7, 2009.......... September 23, 2014.
715(F)(2) and Performance for
(H). Existing Primary
Copper Smelters;
Site-specific
Requirements.
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On September 10, 2020 the submittal for the rescission of A.A.C.
R18-2-715(F)(2) and (H) was deemed by operation of law to meet the
completeness criteria in 40 CFR part 51 appendix V, which must be met
before formal EPA review.
B. What was the purpose of the SIP-approved rule provisions, and what
is the purpose of the State's rescission request?
ADEQ adopted A.A.C. R18-2-715(F)(2) and (H) in order to establish
source-specific SO2 emissions limits for the copper smelter
located in Miami, Arizona (``Miami Smelter''). ADEQ also adopted
compliance and monitoring provisions for these limits in A.A.C. R18-2-
715.01. These provisions were necessary to provide for attainment of
the 1971 National Ambient Air Quality Standard (NAAQS), for which the
Miami area was designated nonattainment in 1978.\2\ The State of
Arizona submitted regulations to the EPA in 1979 and 1980 to reduce
emissions from criteria pollutant sources in Miami and across the
state. The EPA approved these measures on January 14, 1983, but found
that further analysis and control of smelter fugitive emissions was
needed.\3\ The Miami smelter operators submitted fugitive emissions
studies in the 1990s to better estimate fugitive emissions during
typical operation to eventually determine maximum emissions. This
analysis resulted in the implementation of further control measures and
emission limits at the Miami Smelter to provide for attainment of the
1971 SO2 NAAQS. On November 1, 2004, the EPA approved rules
R18-2-715 (sections F, G, and H), R18-2-715.01 and R18-2-715.02, which
codified these new requirements.\4\ In 2007, the EPA
[[Page 12311]]
redesignated the Miami area to attainment for the 1971 NAAQS.\5\
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\2\ The Miami SO2 NAA (nonattainment area) initially
included all of Gila County (43 FR 8968, March 3, 1978), but its
boundaries were later revised to include only the nine townships in
and around Miami (44 FR 21261, April 10, 1979).
\3\ 48 FR 1717. These provisions were codified within A.A.C. R9-
3-515, which was the predecessor to A.A.C. R18-2-715.
\4\ 69 FR 63324. The EPA later approved minor revisions to
A.A.C. R18-2-715. 79 FR 56655 (September 23, 2014).
\5\ 72 FR 3061 (January 24, 2007).
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In 2010, the EPA promulgated a new 1-hour SO2 NAAQS, and
simultaneously established provisions for revoking the 1971
SO2 NAAQS.\6\ The EPA designated the Miami area as
nonattainment for the 2010 SO2 NAAQS in 2013.\7\ ADEQ
submitted a new SO2 attainment plan and rule for Miami (R18-
2-C1302) in 2017 to comply with CAA requirements for 2010
SO2 nonattainment areas. ADEQ also submitted new
transitional provisions in A.A.C. R18-2-715(I) and R18-2-715.01(V) in
order to sunset the existing rule provisions upon the effective date of
R18-2-B1302, which regulates SO2 emissions from the copper
smelter in Hayden, Arizona along with the provisions for Miami, Arizona
in R18-2-C1302.
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\6\ 75 FR 35520 (June 22, 2010).
\7\ 78 FR 47191 (August 5, 2013; effective October 4, 2013).
This action also established an effective date for revocation of the
1971 SO2 NAAQS in the Miami area of October 4, 2014. See
40 CFR 50.4(e).
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The EPA approved A.A.C. R18-2-C1302 into the Arizona SIP on
November 14, 2018,\8\ and approved the Miami SO2 attainment
plan on March 12, 2019.\9\ However, we have not yet proposed to act on
the transitional provisions in A.A.C. R18-2-715(I) and R18-2-715.01(V).
As explained in our recent final limited approval and limited
disapproval of R18-2-B1302 (``Limits on SO2 Emissions from
the Hayden Smelter'') ``because the transitional provisions that apply
to Hayden and Miami are inseverable from one another (i.e., both are
contained within a single paragraph within R18-2-715(I) and R18-2-
715.01(V)), we cannot separately approve the transitional provisions
for Miami without also approving the provisions for Hayden, which is
prohibited by CAA section 110(l).'' \10\ Therefore, the Miami smelter
remains subject to the emission limits in R18-2-715(F)(2) and (H) and
associated requirements in R18-2-715.01.
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\8\ 83 FR 56736.
\9\ 84 FR 8813.
\10\ 85 FR 70483, 70485 (November 5, 2020).
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ADEQ is requesting that EPA rescind R18-2-715(F)(2) and (H) from
the Arizona SIP in order to remove the emissions limits and associated
requirements that were established to meet the now-revoked 1971
SO2 NAAQS. In support of this request, ADEQ submitted a
demonstration of how rescission of these provisions from the SIP would
comply with applicable CAA requirements.\11\
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\11\ ``State Implementation Plan Revision; Miami SO2
Nonattainment Area Demonstration of Compliance with Clean Air Act
Sections 110(l) and 193 for the 2010 SO2 National Ambient
Air Quality Standards,'' dated February 27, 2020.
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II. The EPA's Evaluation and Action
A. How is the EPA evaluating the request for rescission?
Once a rule has been approved as part of a SIP, the rescission of
that rule from the SIP constitutes a SIP revision. To approve such a
revision, the EPA must determine whether the revision meets relevant
CAA criteria for stringency, and complies with restrictions on
relaxation of SIP measures under CAA section 110(l), and the General
Savings Clause in CAA section 193 for SIP-approved control requirements
in effect before November 15, 1990.
Stringency: CAA section 172(c)(1) requires that SIPs for
nonattainment areas provide for the implementation of all reasonably
available control measures (RACM), including any reasonably available
control technology (RACT), in order to provide for attainment of the
NAAQS.
Plan Revisions: States must demonstrate that SIP revisions would
not interfere with attainment, reasonable further progress (RFP) or any
other applicable requirement of the CAA under the provisions of CAA
section 110(l). Therefore, consistent with CAA section 110(l)
requirements, ADEQ must demonstrate that the rescission of R18-2-
715(F)(2) and (H) from the SIP would not interfere with attainment and
RFP of the NAAQS or any other applicable CAA requirement.
General Savings Clause: CAA section 193 prohibits the modification
of any control requirement in effect, or required to be adopted by an
order, settlement agreement or plan in effect before November 15, 1990,
in areas designated as nonattainment for an air pollutant unless the
modification ensures equivalent or greater emission reductions of the
relevant pollutant.
B. Does the rule rescission meet the evaluation criteria?
The EPA previously determined that R18-2-C1302 and the Miami
SO2 attainment plan meet the requirements for RACM/RACT for
the Miami 2010 SO2 nonattainment area.\12\ We have also
found that the emissions limits in R18-2-C1302 are more stringent than
those in R18-2-715.\13\ In particular, the 30-day rolling average
emission limit of 142.45 pounds per hour (lb/hr) in R18-2-C1302(C),
which covers both stack and fugitive emissions, is far more stringent
than the annual average limit of 2,420 lb/hr for combined stack and
fugitive emissions in R18-2-715(H). The 142.45 lb/hr limit in R18-2-
C1302 is also clearly more stringent than annual average emission limit
of 604 lb/hr and 3-hour limits of 712--8,678 lb/hr for stack emissions
in R18-2-715(F)(2).
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\12\ EPA, ``Technical Support Document for the EPA's Rulemaking
for the Arizona State Implementation Plan; Arizona Administrative
Code, Title 18, Chapter 2, Article 13, Part B--Hayden, Arizona,
Planning Area, R18-2-B1302--Limits on SO2 Emissions from
the Hayden Smelter,'' April 2020 (``Rule B1302 TSD''), 10 -12; 84 FR
8813, March 12, 2019.
\13\ Rule B1302 TSD, 12-13.
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We also note that while ADEQ is not requesting rescission of the
compliance and monitoring requirements in R18-2-715.01, the removal of
R18-2-715(F)(2) and (H) from the SIP would effectively render the
provisions of R18-2-715.01 inapplicable to the Miami smelter.\14\ We
find that the nullification of these provisions with respect to the
Miami smelter would not interfere with any CAA requirements because the
Miami smelter is already required to comply with the more prescriptive
requirements for compliance and monitoring in R18-2-C1302(E).
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\14\ The Hayden Smelter will remain subject to the applicable
requirements of both R18-2-715 and R18-2-715.01 until we take action
to remove those requirements from the SIP or approve the
transitional provisions in A.A.C. R18-2-715(I) and R18-2-715.01(V)
into the SIP.
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For the foregoing reasons, we propose to find that the rescission
of R18-2-715(F)(2) and (H) from the Arizona SIP would not interfere
with any CAA requirements and would therefore comply with CAA section
110(l). We also propose to find that our prior approval of R18-2-C1302
ensures equivalent or greater emission reductions of SO2
than the rescission of R18-2-715(F)(2) and (H) and therefore satisfies
the requirements of CAA section 193.
C. Public Comment and Proposed Action
As authorized in section 110(k)(3) of the Act, the EPA proposes to
approve the rescission of R18-2-715(F)(2) and (H) from the Arizona SIP
because these provisions are no longer needed to meet any CAA
requirement and rescission would comply with CAA sections 110(l) and
193. We will accept comments from the public on this proposal until
April 2, 2021. If we take final action to approve the rule rescission,
our final action will rescind these provisions from the federally
enforceable SIP.
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III. Incorporation by Reference
In this document, the EPA is proposing to amend regulatory text
that includes incorporation by reference. The EPA is proposing to
remove R18-2-715(F)(2) and (H) as described in Table 1 of this preamble
from the Arizona State Implementation Plan, which is incorporated by
reference in accordance with the requirements of 1 CFR part 51.
IV. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, 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 law 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 Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
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, Incorporation by
reference, Intergovernmental relations, Reporting and recordkeeping
requirements, Sulfur dioxide.
Authority: 42 U.S.C. 7401 et seq.
Dated: February 18, 2021.
Deborah Jordan,
Acting Regional Administrator, Region IX.
[FR Doc. 2021-03753 Filed 3-2-21; 8:45 am]
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