[Federal Register Volume 87, Number 26 (Tuesday, February 8, 2022)]
[Rules and Regulations]
[Pages 7042-7044]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-02463]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2022-0107; FRL-9426-03-R9]


Determination To Defer Sanctions; Arizona; Maricopa County; Power 
Plants

AGENCY: Environmental Protection Agency (EPA).

ACTION: Interim final determination.

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SUMMARY: The Environmental Protection Agency (EPA) is making an interim 
final determination that the Arizona Department of Environmental 
Quality (ADEQ) has submitted a revised rule on behalf of the Maricopa 
County Air Quality Department (MCAQD or County) that corrects 
deficiencies in its Clean Air Act (CAA or Act) state implementation 
plan (SIP) provisions concerning ozone nonattainment requirements for 
controlling oxides of nitrogen (NOX) at power plants. This 
determination is based on a proposed approval, published elsewhere in 
this Federal Register, of MCAQD's Rule 322 regulating that source 
category. The effect of this interim final determination is that the 
imposition of sanctions that

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were triggered by a previous disapproval by the EPA in 2020 is now 
deferred. If the EPA finalizes its approval of MCAQD's submission, 
relief from these sanctions will become permanent.

DATES: This determination is effective on February 8, 2022. However, 
comments will be accepted on or before March 10, 2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2022-0107 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. Background
II. The EPA's Evaluation and Action
III. Statutory and Executive Order Reviews

I. Background

    On July 20, 2020 (85 FR 43692), the EPA issued a final disapproval 
for MCAQD's Rule 322 that had been submitted by the ADEQ to the EPA for 
inclusion into the Arizona SIP. The 2020 action addressed the 
requirement that the MCAQD implement reasonably available control 
technology (RACT) for emissions sources in ozone nonattainment areas 
under the Act. In that action, we determined that the Rule 322 
submittal included several deficiencies that precluded our approval of 
the rule into the SIP, and thus failed to implement RACT. Therefore, 
our 2020 action included a disapproval of the SIP revision under title 
I, part D of the Act, relating to requirements for nonattainment areas. 
Pursuant to section 179 of the CAA and our regulations at 40 CFR 52.31, 
this disapproval action under title I, part D started a sanctions clock 
for imposition of offset sanctions 18 months after the action's 
effective date of August 19, 2020, and highway sanctions 6 months 
later.
    On June 23, 2021, the MCAQD revised Rule 322 and on June 24, 2021, 
ADEQ submitted the SIP revision to the EPA for approval into the 
Arizona SIP. The revision is intended to address the disapproval issues 
under title I, part D that we identified in our 2020 action. In the 
Proposed Rules section of this Federal Register, we have proposed 
approval of the revised MCAQD Rule 322. Based on this proposed approval 
action, we are also taking this interim final determination, effective 
on publication, to defer imposition of the offset sanctions and highway 
sanctions that were triggered by our 2020 action's disapproval, because 
we believe that the 2020 submittal corrects the deficiencies that 
triggered such sanctions.
    The EPA is providing the public with an opportunity to comment on 
this deferral of sanctions. If comments are submitted that change our 
assessment described in this interim final determination and the 
proposed full approval of MCAQD Rule 322 with respect to the title I, 
part D deficiencies identified in our 2020 action, we would take final 
action to lift this deferral of sanctions under 40 CFR 52.31. If no 
comments are submitted that change our assessment, then all sanctions 
and any sanction clocks triggered by our 2020 action would be 
permanently terminated on the effective date of our final approval of 
MCAQD Rule 322.

II. The EPA's Evaluation and Action

    We are making an interim final determination to defer CAA section 
179 sanctions associated with our disapproval action on July 20, 2020, 
of MCAQD Rule 322 with respect to the requirements of part D of title I 
of the CAA. This determination is based on our concurrent proposal to 
fully approve Rule 322, which resolves the deficiencies that triggered 
sanctions under section 179 of the CAA.
    Because the EPA has preliminarily determined that MCAQD's submittal 
of Rule 322 addresses the deficiencies under part D of title I of the 
CAA identified in our 2020 action and is fully approvable, relief from 
sanctions should be provided as quickly as possible. Therefore, the EPA 
is invoking the good cause exception under the Administrative Procedure 
Act (APA) in not providing an opportunity for comment before this 
action takes effect (5 U.S.C. 553(b)(3)). However, by this action, the 
EPA is providing the public with a chance to comment on the EPA's 
determination after the effective date, and the EPA will consider any 
comments received in determining whether to reverse such action.
    The EPA believes that notice-and-comment rulemaking before the 
effective date of this action is impracticable and contrary to the 
public interest. The EPA has reviewed the State's submittal and, 
through its proposed action, is indicating that it is more likely than 
not that the State has submitted a revision to the SIP that corrects 
deficiencies under part D of the Act that were the basis for the action 
that started the sanctions clocks. Therefore, it is not in the public 
interest to impose sanctions. The EPA believes that it is necessary to 
use the interim final rulemaking process to defer sanctions while the 
EPA completes its rulemaking process on the approvability of the 
State's submittal. Moreover, with respect to the effective date of this 
action, the EPA is invoking the good cause exception to the 30-day 
notice requirement of the APA because the purpose of this notice is to 
relieve a restriction (5 U.S.C. 553(d)(1)).

III. Statutory and Executive Order Reviews

    This action defers sanctions and imposes no additional 
requirements. For that reason, this 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.);

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     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).
     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).
     Is subject to the Congressional Review Act (CRA), 5 U.S.C. 
801 et seq., and the EPA will submit a rule report to each House of the 
Congress and to the Comptroller General of the United States. The CRA 
allows the issuing agency to make a rule effective sooner than 
otherwise provided by the CRA if the agency makes a good cause finding 
that notice and comment rulemaking procedures are impracticable, 
unnecessary or contrary to the public interest (5 U.S.C. 808(2)). The 
EPA has made a good cause finding for this rule as discussed in section 
II of this preamble, including the basis for that finding.
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by April 11, 2022. Filing a petition for 
reconsideration by the EPA Administrator of this final rule does not 
affect the finality of this rule for the purpose of judicial review nor 
does it extend the time within which 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

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Oxides of 
nitrogen, Ozone, Particulate matter, Reporting and recordkeeping 
requirements.

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

    Dated: February 1, 2022.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2022-02463 Filed 2-7-22; 8:45 am]
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