[Federal Register Volume 87, Number 232 (Monday, December 5, 2022)]
[Proposed Rules]
[Pages 74349-74355]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-26359]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2022-0326; FRL-9693-01-R9]
Partial Approval and Partial Disapproval of Air Quality State
Implementation Plans; Arizona; 2015 Ozone Infrastructure Requirements
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
partially approve and partially disapprove the Arizona state
implementation plan (SIP) as meeting the requirements of sections
110(a)(1) and 110(a)(2) of the Clean Air Act (CAA) for the
implementation, maintenance, and enforcement of the 2015 ozone national
ambient air quality standards (NAAQS or ``standards'').
[[Page 74350]]
Section 110(a)(1) requires that each state adopt and submit a SIP for
the implementation, maintenance, and enforcement of each NAAQS
promulgated by the EPA, and that the EPA act on such SIPs. We refer to
such SIPs as ``infrastructure'' SIPs because they are intended to
address basic structural SIP requirements for new or revised NAAQS
including, but not limited to, legal authority, regulatory structure,
resources, permit programs, monitoring, and modeling necessary to
assure attainment and maintenance of the standards. In addition to our
proposed partial approval and partial disapproval of Arizona's
infrastructure SIP, the EPA is proposing to approve rules in the
Arizona Revised Statutes and Pima County Code related to public
availability of emissions reports into the Arizona SIP. Lastly, the EPA
is proposing to reclassify regions in Arizona with respect to episode
plans for ozone under 40 CFR 51.150. The EPA is seeking public comments
on this proposed action and will accept comments from the public on
this proposal for the next 30 days.
DATES: Any comments must arrive by January 4, 2023.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2022-0326 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: Ben Leers, Air Planning Office (AIR-
2), EPA Region IX, (415) 947-4279, [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' refer to the EPA.
Table of Contents
I. The EPA's Approach To Reviewing Infrastructure SIPs
II. Background
A. Statutory Framework
B. Regulatory Background
III. State Submittals
IV. The EPA's Evaluation and Proposed Action
A. Proposed Approvals and Partial Approvals
B. Proposed Partial Disapprovals
C. Incorporation of Rules Into Arizona's State Implementation Plan
D. Reclassification of Regions for Ozone Episode Plans
V. Statutory and Executive Order Reviews
I. The EPA's Approach To Reviewing Infrastructure SIPs
The EPA is acting on SIP submittals from Arizona that address the
infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2)
with respect to the 2015 ozone NAAQS. Under section 110(a)(1), states
are required to submit infrastructure SIPs within three years (or such
shorter period as the Administrator may prescribe) after the
promulgation of a national primary ambient air quality standard (or any
revision thereof). The infrastructure SIP submittals required under
section 110(a)(1) are intended to provide for the ``implementation,
maintenance, and enforcement'' of such NAAQS. The statute directly
imposes on states the duty to make these SIP submittals, and the
requirement to make the submittals is not conditioned upon the EPA
taking any action other than promulgating a new or revised NAAQS.
Section 110(a)(2) includes a list of specific ``elements'' that each
such infrastructure SIP submittal must address.
The EPA has historically referred to these SIP submittals made for
the purpose of satisfying the requirements of CAA sections 110(a)(1)
and 110(a)(2) as infrastructure SIP submittals. Although the term
``infrastructure SIP'' does not appear in the CAA, the EPA uses the
term to distinguish this particular type of SIP submittal from
submittals that are intended to satisfy other SIP requirements under
the CAA, such as ``nonattainment SIP'' or ``attainment SIP'' submittals
to address the nonattainment planning requirements of CAA title I part
D, ``regional haze SIP'' submittals required by the EPA rule to address
the visibility protection requirements of section 169A, and
nonattainment new source review (NSR) permit program submittals to
address the permit requirements of CAA title I part D.
CAA section 110(a)(1) addresses the timing and general requirements
for infrastructure SIP submittals, and section 110(a)(2) provides more
details concerning the required contents of these submittals. The list
of required elements provided in section 110(a)(2) contains a wide
variety of disparate provisions, some of which pertain to required
legal authority, some of which pertain to required substantive program
provisions, and some of which pertain to requirements for both
authority and substantive program provisions.\1\ The EPA therefore
believes that, while the timing requirement in section 110(a)(1) is
unambiguous, some of the other statutory provisions are ambiguous. In
particular, the EPA believes that the list of required elements for
infrastructure SIP submittals provided in section 110(a)(2) contains
ambiguities concerning what is required for inclusion in an
infrastructure SIP submittal.
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\1\ For example, CAA section 110(a)(2)(E)(i) provides that
states must provide assurances that they have adequate legal
authority under state and local law to carry out the SIP; section
110(a)(2)(C) provides that states must have a SIP-approved program
to address certain sources as required by part C of title I of the
CAA; and section 110(a)(2)(G) provides that states must have legal
authority to address emergencies as well as contingency plans that
are triggered in the event of such emergencies.
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The following examples of ambiguities illustrate the need for the
EPA to interpret some CAA section 110(a)(1) and section 110(a)(2)
requirements with respect to infrastructure SIP submittals for a given
new or revised NAAQS. One example of ambiguity is that section
110(a)(2) requires that ``each'' SIP submittal must meet the list of
requirements therein, while the EPA has long noted that this literal
reading of the statute is internally inconsistent and would create a
conflict with the nonattainment provisions in CAA title I part D, which
specifically address nonattainment SIP requirements.\2\ Section
110(a)(2)(I) pertains to nonattainment SIP requirements, and part D
addresses when attainment plan SIP submittals to address nonattainment
area requirements are due. For example, section 172(b) requires the EPA
to
[[Page 74351]]
establish a schedule for submittal of such plans for certain pollutants
when the Administrator promulgates the designation of an area as
nonattainment, and section 107(d)(1)(B) allows up to two years, or in
some cases three years, for such designations to be promulgated.\3\
This ambiguity illustrates that, rather than apply all the stated
requirements of section 110(a)(2) in a strict literal sense, the EPA
must determine which provisions of section 110(a)(2) are applicable for
a particular infrastructure SIP submittal. Another example of ambiguity
within sections 110(a)(1) and 110(a)(2) with respect to infrastructure
SIPs pertains to whether states must meet all of the infrastructure SIP
requirements in a single SIP submittal and whether the EPA must act
upon such SIP submittal in a single action. Although section 110(a)(1)
directs states to submit ``a plan'' to meet these requirements, the EPA
interprets the CAA to allow states to make multiple SIP submittals
separately addressing infrastructure SIP elements for the same NAAQS.
If states elect to make such multiple SIP submittals to meet the
infrastructure SIP requirements, the EPA can elect to act on such
submittals either individually or in a larger combined action.\4\
Similarly, the EPA interprets the CAA to allow it to take action on the
individual parts of one larger, comprehensive infrastructure SIP
submittal for a given NAAQS without concurrent action on the entire
submittal. For example, the EPA has sometimes elected to act at
different times on various elements and subelements of the same
infrastructure SIP submittal.\5\
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\2\ See, e.g, 70 FR 25162, 25163-25165 (May 12, 2005),
explaining the relationship between the timing requirements of CAA
section 110(a)(2)(D) versus section 110(a)(2)(I).
\3\ The EPA notes that this ambiguity within CAA section
110(a)(2) is heightened by the fact that various subparts of part D
set specific dates for submittal of certain types of SIP submittals
in designated nonattainment areas for various pollutants. Note, for
example, that section 182(a)(1) provides specific dates for
submittal of emissions inventories for the ozone NAAQS. Some of
these specific dates are necessarily later than three years after
promulgation of the new or revised NAAQS.
\4\ See, e.g., the EPA's final action approving the structural
PSD elements of the New Mexico SIP submitted by the State separately
to meet the requirements of EPA's 2008 NSR rule for particulate
matter of 2.5 micrometers or less (PM2.5) at 78 FR 4339
(January 22, 2013), and the EPA's final action on the infrastructure
SIP for the 2006 PM2.5 NAAQS at 78 FR 4337 (January 22,
2013).
\5\ On December 14, 2007, the State of Tennessee made a SIP
revision to the EPA demonstrating that the State meets the
requirements of CAA sections 110(a)(1) and 110(a)(2). The EPA
proposed action for infrastructure SIP elements (C) and (J) at 77 FR
3213 (January 23, 2012) and took final action at 77 FR 14976 (March
14, 2012). The EPA took separate proposed and final actions on all
other section 110(a)(2) infrastructure SIP elements of Tennessee's
December 14, 2007 submittal; see 77 FR 22533 (April 16, 2012) and 77
FR 42997 (July 23, 2012).
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Ambiguities within CAA sections 110(a)(1) and 110(a)(2) may also
arise with respect to infrastructure SIP submittal requirements for
different NAAQS. Thus, the EPA notes that not every element of section
110(a)(2) would be relevant, as relevant, or relevant in the same way,
for each new or revised NAAQS. The states' attendant infrastructure SIP
submittals for each NAAQS therefore could be different. For example,
the monitoring requirements that a state might need to meet in its
infrastructure SIP submittal for purposes of section 110(a)(2)(B) could
be very different for different pollutants, for example, because the
content and scope of a state's infrastructure SIP submittal to meet
this element might be very different for an entirely new NAAQS than for
a minor revision to an existing NAAQS.\6\
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\6\ For example, implementation of the 1997 PM2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of new indicator species for the new NAAQS.
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The EPA notes that interpretation of CAA section 110(a)(2) is also
necessary when the EPA reviews other types of SIP submittals required
under the CAA. Therefore, as with infrastructure SIP submittals, the
EPA also has to identify and interpret the relevant elements of section
110(a)(2) that logically apply to these other types of SIP submittals.
For example, section 172(c)(7) requires that attainment plan SIP
submittals required by part D meet the ``applicable requirements'' of
section 110(a)(2). Thus, for example, attainment plan SIP submittals
must meet the requirements of section 110(a)(2)(A) regarding
enforceable emissions limits and control measures and section
110(a)(2)(E)(i) regarding air agency resources and authority. By
contrast, it is clear that attainment plan SIP submittals required by
part D would not need to meet the portion of section 110(a)(2)(C) that
pertains to the air quality prevention of significant deterioration
(PSD) program required in part C of title I of the CAA, because PSD
does not apply to a pollutant for which an area is designated
nonattainment and thus subject to part D planning requirements. As this
example illustrates, each type of SIP submittal may implicate some
elements of section 110(a)(2) but not others.
Given the potential for ambiguity in some of the statutory language
of section 110(a)(1) and section 110(a)(2), the EPA believes that it is
appropriate to interpret the ambiguous portions of section 110(a)(1)
and section 110(a)(2) in the context of acting on a particular SIP
submittal. In other words, the EPA assumes that Congress could not have
intended that each and every SIP submittal, regardless of the NAAQS in
question or the history of SIP development for the relevant pollutant,
would meet each of the requirements, or meet each of them in the same
way. Therefore, the EPA has adopted an approach under which it reviews
infrastructure SIP submittals against the list of elements in section
110(a)(2), but only to the extent each element applies for that
particular NAAQS.
Historically, the EPA has elected to use guidance documents to make
recommendations to states for infrastructure SIPs, in some cases
conveying needed interpretations on newly arising issues and in some
cases conveying interpretations that have already been developed and
applied to individual SIP submittals for particular elements.\7\ The
EPA most recently issued guidance for infrastructure SIPs on September
13, 2013 (``2013 Infrastructure SIP Guidance'').\8\ The EPA developed
this document to provide states with up-to-date guidance for
infrastructure SIPs for any new or revised NAAQS. Within this guidance,
the EPA describes the duty of states to make infrastructure SIP
submittals to meet basic structural SIP requirements within three years
of promulgation of a new or revised NAAQS. The EPA also made
recommendations about many specific subsections of CAA section
110(a)(2) that are relevant in the context of infrastructure SIP
submittals.\9\ The guidance also discusses the substantively important
issues that are germane to certain subsections of section 110(a)(2).
Significantly, the EPA
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interprets sections 110(a)(1) and 110(a)(2) such that infrastructure
SIP submittals need to address certain issues and need not address
others. Accordingly, the EPA reviews each infrastructure SIP submittal
for compliance with the applicable statutory provisions of section
110(a)(2), as appropriate.
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\7\ The EPA notes, however, that nothing in the CAA requires the
EPA to provide guidance or to promulgate regulations for
infrastructure SIP submittals. The CAA directly applies to states
and requires the submittal of infrastructure SIP submittals,
regardless of whether or not the EPA provides guidance or
regulations pertaining to such submittals. The EPA elects to issue
such guidance in order to assist states, as appropriate.
\8\ Memorandum dated September 13, 2013, from Stephen D. Page,
Director, Office of Air Quality and Planning Standards, U.S. EPA,
Subject: ``Guidance on Infrastructure State Implementation Plan
(SIP) Elements under Clean Air Act Sections 110(a)(1) and
110(a)(2).''
\9\ The 2013 Infrastructure SIP Guidance did not make
recommendations with respect to infrastructure SIP submittals to
address CAA section 110(a)(2)(D)(i)(I). The EPA issued the guidance
shortly after the U.S. Supreme Court agreed to review the D.C.
Circuit decision in EME Homer City, 696 F.3d7 (D.C. Cir. 2012) which
had interpreted the requirements of section 110(a)(2)(D)(i)(I). In
light of the uncertainty created by ongoing litigation, the EPA
elected not to provide additional guidance on the requirements of
section 110(a)(2)(D)(i)(I) at that time. As the guidance is neither
binding nor required by statute, whether the EPA elects to provide
guidance on a particular section has no impact on a state's CAA
obligations.
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As an example, CAA section 110(a)(2)(E)(ii) is a required element
of section 110(a)(2) for infrastructure SIP submittals. Under this
element, a state must meet the substantive requirements of section 128,
which pertain to state boards that approve permits or enforcement
orders and heads of executive agencies with similar powers. Thus, the
EPA reviews infrastructure SIP submittals to ensure that the state's
SIP appropriately addresses the requirements of section
110(a)(2)(E)(ii) and section 128. The 2013 Infrastructure SIP Guidance
explains the EPA's interpretation that there may be a variety of ways
by which states can appropriately address these substantive statutory
requirements, depending on the structure of an individual state's
permitting or enforcement program (e.g., whether permits and
enforcement orders are approved by a multi-member board or by a head of
an executive agency). However they are addressed by the state, the
substantive requirements of section 128 are necessarily included in the
EPA's evaluation of infrastructure SIP submittals because section
110(a)(2)(E)(ii) explicitly requires that the state satisfy the
provisions of section 128.
As another example, the EPA's review of infrastructure SIP
submittals with respect to the PSD program requirements in CAA sections
110(a)(2)(C), 110(a)(2)(D)(i)(II), and 110(a)(2)(J) focuses on the
structural PSD program requirements contained in CAA title I part C and
the EPA's PSD regulations. Structural PSD program requirements include
provisions necessary for the PSD program to address all regulated
sources and regulated NSR pollutants, including greenhouse gases (GHG).
By contrast, structural PSD program requirements do not include
provisions that are not required under the EPA's regulations at 40 CFR
51.166 but are merely available as an option for the state, such as the
option to provide grandfathering of complete permit applications with
respect to the 2012 NAAQS for particulate matter of 2.5 micrometers or
less (PM2.5). Accordingly, the latter optional provisions
are types of provisions the EPA considers irrelevant in the context of
an infrastructure SIP action.
For other CAA section 110(a)(2) elements, however, the EPA's review
of a state's infrastructure SIP submittal focuses on assuring that the
state's SIP meets basic structural requirements. For example, section
110(a)(2)(C) includes, inter alia, the requirement that states have a
program to regulate new minor sources. Thus, the EPA evaluates whether
the state has a SIP-approved minor NSR program and whether the program
addresses the pollutants relevant to that NAAQS. In the context of
acting on an infrastructure SIP submittal, however, the EPA does not
think it is necessary to conduct a review of each and every provision
of a state's existing minor source program (i.e., already in the
existing SIP) for compliance with the requirements of the CAA and the
EPA's regulations that pertain to such programs.
With respect to certain other issues, the EPA does not believe that
an action on a state's infrastructure SIP submittal is necessarily the
appropriate type of action in which to address possible deficiencies in
a state's existing SIP. These issues include: (i) existing provisions
related to excess emissions from sources during periods of startup,
shutdown, or malfunction (SSM) that may be contrary to the CAA and EPA
policies addressing such excess emissions; (ii) existing provisions
related to ``director's variance'' or ``director's discretion'' that
may be contrary to the CAA because they purport to allow revisions to
SIP-approved emissions limits while limiting public process or not
requiring further approval by the EPA; and (iii) existing provisions
for PSD programs that may be inconsistent with current requirements of
the EPA's ``Final NSR Improvement Rule.'' \10\ Thus, the EPA believes
it may approve an infrastructure SIP submittal without scrutinizing the
totality of the existing SIP for such potentially deficient provisions
and may approve the submittal even if it is aware of such existing
provisions.\11\ It is important to note that the EPA's approval of a
state's infrastructure SIP submittal should not be construed as
explicit or implicit reapproval of any existing potentially deficient
provisions that relate to the three specific issues just described.
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\10\ See 67 FR 80186 (December 31, 2002), as amended by 72 FR
32526 (June 13, 2007).
\11\ By contrast, the EPA notes that if a state were to include
a new provision in an infrastructure SIP submittal that contained a
legal deficiency, such as a new exemption for excess emissions
during SSM events, then the EPA would need to evaluate that
provision for compliance against the rubric of applicable CAA
requirements in the context of the action on the infrastructure SIP.
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The EPA's approach to reviewing infrastructure SIP submittals is to
identify the CAA requirements that are logically applicable to that
submittal. The EPA believes that this approach to the review of a
particular infrastructure SIP submittal is appropriate because it would
not be reasonable to read the general requirements of CAA section
110(a)(1) and the list of elements in 110(a)(2) as requiring review of
each and every provision of a state's existing SIP against all
requirements in the CAA and EPA regulations merely for purposes of
assuring that the state in question has the basic structural elements
for a functioning SIP for a new or revised NAAQS. Because SIPs have
grown by accretion over the decades as statutory and regulatory
requirements under the CAA have evolved, they may include some outmoded
provisions and historical artifacts. These provisions, while not fully
up to date, nevertheless may not pose a significant problem for the
purposes of ``implementation, maintenance, and enforcement'' of a new
or revised NAAQS when the EPA evaluates adequacy of the infrastructure
SIP submittal. The EPA believes that a better approach is for states
and the EPA to focus attention on those elements of section 110(a)(2)
most likely to warrant a specific SIP revision due to the promulgation
of a new or revised NAAQS or other factors.
For example, the 2013 Infrastructure SIP Guidance gives simpler
recommendations with respect to carbon monoxide than other NAAQS
pollutants to meet the visibility requirements of CAA section
110(a)(2)(D)(i)(II) because carbon monoxide does not affect visibility.
As a result, an infrastructure SIP submittal for any future new or
revised NAAQS for carbon monoxide need only state this fact in order to
address the visibility prong of section 110(a)(2)(D)(i)(II).
Finally, the EPA believes that its approach with respect to
infrastructure SIP requirements is based on a reasonable reading of CAA
sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues
and mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow the EPA to take appropriately
tailored action, depending upon the nature and severity of the alleged
SIP deficiency. Section 110(k)(5) authorizes the EPA to issue a ``SIP
call'' whenever the Agency determines that a state's SIP is
substantially inadequate to attain or maintain the NAAQS, to mitigate
interstate transport, or to otherwise
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comply with the CAA.\12\ Section 110(k)(6) authorizes the EPA to
correct errors in past actions, such as past approvals of SIP
submittals.\13\ Significantly, the EPA's determination that an action
on a state's infrastructure SIP submittal is not the appropriate time
and place to address all potential existing SIP deficiencies does not
preclude the EPA's subsequent reliance on provisions in section
110(a)(2) as part of the basis for action to correct those deficiencies
at a later time. For example, although it may not be appropriate to
require a state to eliminate all existing inappropriate director's
discretion provisions in the course of acting on an infrastructure SIP
submittal, the EPA believes that section 110(a)(2)(A) may be among the
statutory bases that the EPA relies upon in the course of addressing
such deficiency in a subsequent action.\14\
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\12\ For example, the EPA issued a SIP call to Utah to address
specific existing SIP deficiencies related to the treatment of
excess emissions during SSM events. See 76 FR 21639 (April 18,
2011).
\13\ The EPA has used this authority to correct errors in past
actions on SIP submittals related to PSD programs. See Limitation of
Approval of Prevention of Significant Deterioration Provisions
Concerning Greenhouse Gas Emitting-Sources in State Implementation
Plans; Final Rule, 75 FR 82536 (December 30, 2010). The EPA has
previously used its authority under CAA section 110(k)(6) to remove
numerous other SIP provisions that the Agency determined it had
approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR
34641 (June 27, 1997) (corrections to American Samoa, Arizona,
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16,
2004) (corrections to California SIP); and 74 FR 57051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
\14\ See, e.g., the EPA's disapproval of a SIP submittal from
Colorado on the grounds that it would have included a director's
discretion provision inconsistent with CAA requirements, including
section 110(a)(2)(A). See, e.g., 75 FR 42342, 42344 (July 21, 2010)
(proposed disapproval of director's discretion provisions); 76 FR
4540 (January 26, 2011) (final disapproval of such provisions).
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II. Background
A. Statutory Framework
As described in the previous section, CAA section 110(a)(1)
requires states to make a SIP submittal within three years after the
promulgation of a new or revised primary NAAQS. Section 110(a)(2)
includes a list of specific elements that each infrastructure SIP
submittal must include. These infrastructure SIP elements required by
section 110(a)(2) are as follows:
Section 110(a)(2)(A): Emission limits and other control
measures.
Section 110(a)(2)(B): Ambient air quality monitoring/data
system.
Section 110(a)(2)(C): Program for enforcement of control
measures and regulation of new and modified stationary sources.
Section 110(a)(2)(D)(i): Interstate pollution transport.
Section 110(a)(2)(D)(ii): Interstate and international
pollution abatement.
Section 110(a)(2)(E): Adequate resources and authority,
conflict of interest, and oversight of local and regional government
agencies.
Section 110(a)(2)(F): Stationary source monitoring and
reporting.
Section 110(a)(2)(G): Emergency episodes.
Section 110(a)(2)(H): SIP revisions.
Section 110(a)(2)(J): Consultation with government
officials, public notification, PSD, and visibility protection.
Section 110(a)(2)(K): Air quality modeling and submittal
of modeling data.
Section 110(a)(2)(L): Permitting fees.
Section 110(a)(2)(M): Consultation/participation by
affected local entities.
Two elements identified in CAA section 110(a)(2) are not governed
by the three-year submittal deadline of section 110(a)(1) and are
therefore not addressed in this action. These two elements are section
110(a)(2)(C), to the extent that it refers to permit programs required
under part D (nonattainment NSR), and section 110(a)(2)(I), pertaining
to the nonattainment planning requirements of part D. As a result, this
action does not address infrastructure requirements for the
nonattainment NSR portion of section 110(a)(2)(C) or the entirety of
section 110(a)(2)(I). Additionally, this action does not address the
interstate transport requirements under section 110(a)(2)(D)(i)(I),
referred to as ``prongs 1 and 2'' of section 110(a)(2)(D)(i), or the
requirements of section 110(a)(2)(D)(i)(II) pertaining to interference
with visibility protection in other states, referred to as ``prong 4''
of section 110(a)(2)(D)(i). The EPA proposed action on Arizona's SIP
with respect to prongs 1 and 2 of section 110(a)(2)(D)(i) for the 2015
ozone NAAQS in a prior rulemaking,\15\ and the EPA will take action on
Arizona's SIP with respect to prong 4 of section 110(a)(2)(D)(i) in a
separate, future rulemaking.
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\15\ 87 FR 37776 (June 24, 2022).
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B. Regulatory Background
In 2015, the EPA promulgated revised NAAQS for 8-hour ozone,
triggering a requirement for states to submit infrastructure SIPs. The
2015 ozone NAAQS revised the 2008 8-hour ozone NAAQS by lowering the
primary and secondary 8-hour ozone standards from 75 parts per billion
(ppb) to 70 ppb.
III. State Submittals
The Arizona Department of Environmental Quality (ADEQ) submitted
two SIP revisions to address the infrastructure SIP requirements in CAA
sections 110(a)(1) and 110(a)(2) for the 2015 ozone NAAQS. On September
24, 2018, ADEQ submitted the ``Arizona State Implementation Plan
Revision under Clean Air Act Sections 110(a)(1) and 110(a)(2) for the
2015 Ozone National Ambient Air Quality Standards'' (``2018 Ozone I-SIP
submittal'').\16\ On February 10, 2022, ADEQ submitted the ``State
Implementation Plan Revision: Clean Air Act Section 110(a)(2) for the
2012 Fine Particulate & 2015 Ozone NAAQS'' (``2022 I-SIP
supplement'').\17\ The 2018 Ozone I-SIP submittal and the portion of
the 2022 I-SIP supplement addressing the 2015 Ozone NAAQS collectively
address the infrastructure SIP requirements for the 2015 ozone NAAQS as
described by this proposed rule. We refer to them collectively herein
as ``Arizona's Ozone I-SIP submittals.''
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\16\ Letter dated September 24, 2018, from Timothy S. Franquist,
Director, Air Quality Division, ADEQ, to Michael Stoker, Regional
Administrator, EPA Region IX, Subject: ``Submittal of the Arizona
State Implementation Plan Revision under Clean Air Act Sections
110(a)(1) and 110(a)(2) for the 2015 Ozone NAAQS.''
\17\ Letter dated February 10, 2022, from Daniel Czecholinski,
Director, Air Quality Division, ADEQ, to Martha Guzman, Regional
Administrator, EPA Region IX, Subject: ``Submittal of the Arizona
State Implementation Plan Revision under Clean Air Act Sections
110(a)(2) for the 2012 Fine Particulate and the 2015 Ozone NAAQS.''
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We find that Arizona's Ozone I-SIP submittals meet the procedural
requirements for public participation under CAA section 110(a)(2) and
40 CFR 51.102. We also find that they meet the applicable completeness
criteria in Appendix V to 40 CFR part 51. We are proposing to act on
these submittals with respect to the 2015 ozone NAAQS except for those
portions of the 2018 Ozone I-SIP Submittal addressing prongs 1, 2, and
4 of the interstate transport requirements under CAA section
110(a)(2)(D)(i). We are not taking action on the portions of the 2022
I-SIP supplement addressing the 2012 PM2.5 NAAQS in this
rulemaking.
IV. The EPA's Evaluation and Proposed Action
We have evaluated Arizona's Ozone I-SIP submittals and the existing
provisions of the Arizona SIP for compliance with the infrastructure
SIP requirements of CAA section 110(a)(2)
[[Page 74354]]
and the applicable regulations in 40 CFR part 51 (``Requirements for
Preparation, Adoption, and Submittal of State Implementation Plans'').
The technical support document (TSD) for this rulemaking is available
in the docket and includes our evaluation for these infrastructure SIP
elements as well as our evaluation of various statutory and regulatory
provisions identified and submitted by Arizona.
A. Proposed Approvals and Partial Approvals
Based on the evaluation presented in this notice and in the
accompanying TSD, the EPA proposes to approve Arizona's Ozone I-SIP
submittals with respect to the 2015 ozone NAAQS for the following CAA
requirements. Proposed partial approvals are indicated by the
parenthetical ``(in part).''
110(a)(2)(A)--Emission limits and other control measures.
110(a)(2)(B)--Ambient air quality monitoring/data system.
110(a)(2)(C)--Program for enforcement of control measures
and regulation of new stationary sources (in part).
110(a)(2)(D)(i)(II)--Interference with maintenance, or
``prong 3'' (in part).
110(a)(2)(D)(ii)--Interstate pollution abatement, CAA
section 126 (in part).
110(a)(2)(D)(ii)--International pollution abatement, CAA
section 115.
110(a)(2)(E)--Adequate resources and authority, conflict
of interest, and oversight of local governments and regional agencies.
110(a)(2)(F)--Stationary source monitoring and reporting.
110(a)(2)(G)--Emergency episodes.
110(a)(2)(H)--Consultation with government officials.
110(a)(2)(J)--Consultation with government officials,
public notification, PSD, and visibility protection (in part).
110(a)(2)(K)--Air quality modeling and submission of
modeling data.
110(a)(2)(L)--Permitting fees.
110(a)(2)(M)--Consultation/participation by affected local
entities.
Details about the partial approvals noted in this section are
provided in Section IV.B of this notice regarding proposed partial
disapprovals. The EPA is taking no action on prongs 1, 2, and 4 of CAA
section 110(a)(2)(D)(i) in this rulemaking. In addition to our proposed
partial approval and partial disapproval of Arizona's infrastructure
SIP, we are proposing to approve Arizona Revised Statute (ARS) 49-432
and Pima County Code (PCC) 17.24.010 for incorporation into the Arizona
SIP.
B. Proposed Partial Disapprovals
The EPA proposes to partially disapprove Arizona's Ozone I-SIP
submittals with respect to the 2015 ozone NAAQS for the following Clean
Air Act requirements.
110(a)(2)(C)--Program for enforcement of control measures
and regulation of new stationary sources (in part).
110(a)(2)(D)(i)(II)--Interference with maintenance, or
``prong 3'' (in part).
110(a)(2)(D)(ii)--Interstate pollution abatement, CAA
section 126 (in part).
110(a)(2)(J)--PSD and visibility protection (in part).
The EPA is proposing to partially disapprove Arizona's Ozone I-SIP
submittals with respect to the 2015 ozone NAAQS for these CAA
requirements due to deficiencies with PSD permitting of GHG in all
permitting jurisdictions in Arizona and with PSD permitting of all NSR-
regulated pollutants in Pima County. The EPA's proposed disapprovals
apply only to the portions of these requirements that relate to PSD
permitting programs in Arizona, and they apply only with respect to PSD
permitting of GHG in all areas of Arizona and with respect to PSD
permitting of all NSR-regulated pollutants in Pima County.
Arizona's SIP does not fully satisfy the statutory and regulatory
requirements for PSD permit programs under CAA title I, part C, and
thus Pima County currently implements the federal PSD program in 40 CFR
52.21 for all regulated NSR pollutants, pursuant to a delegation
agreement with the EPA, and all Arizona jurisdictions implement the
federal PSD program in 40 CFR 52.21, pursuant to delegation agreements
with the EPA, for GHG because Arizona is prohibited by state law from
regulating emissions of GHG. Although the Arizona SIP remains deficient
with respect to PSD permitting for certain pollutants in certain areas
of Arizona as described, these deficiencies are adequately addressed in
both areas by existing federal implementation plans (FIPs). If
finalized, these partial disapprovals of Arizona's SIP would not create
any new consequences for Arizona, the relevant county agencies, or the
EPA, as Arizona and the county agencies already implement the EPA's
federal PSD program at 40 CFR 52.21, pursuant to delegation agreements,
for all regulated NSR pollutants. If finalized, these partial
disapprovals would also not result in any offset or highway sanctions,
because sanctions are not triggered by disapprovals of infrastructure
SIPs submittals.
C. Incorporation of Rules Into Arizona's State Implementation Plan
Under CAA section 110(a)(2)(F), SIPs must require the installation
and maintenance of emissions monitoring by stationary sources, periodic
emissions reports from such sources, and correlation of such reports
with applicable emissions limitations or standards established under
the CAA. The stationary source emissions reports required pursuant to
section 110(a)(2)(F) must be made available at reasonable times for
public inspection.
The 2022 I-SIP supplement includes the submittal of the following
two rules for incorporation into the Arizona SIP to meet the
requirements of CAA section 110(a)(2)(F) for the 2015 ozone NAAQS:
Arizona Revised Statute (ARS) 49-432 and Pima County Code (PCC)
17.24.010. Specifically, ARS 49-432 and PCC 17.24.010 address the
provisions of section 110(a)(2)(F) requiring the public availability of
stationary source emissions reports. ARS 49-432 requires that ADEQ make
available to the public any records, reports, or information obtained
pursuant to ARS Title 49, Chapter 3, ``AIR QUALITY.'' Similarly, PCC
17.24.010 requires that the Pima County Department of Environmental
Quality make available to the public any records, reports, or
information obtained pursuant to PCC Title 17, Chapter 17.24,
``EMISSION SOURCE RECORDKEEPING AND REPORTING.'' ARS 49-432 and PCC
17.24.010 each include exemptions to public availability requirements
related to business confidentiality, ongoing criminal investigations,
and civil enforcement actions.
We find that ARS 49-432 and PCC 17.24.010 provide for the public
availability of stationary source emissions reports consistent with the
requirements of CAA section 110(a)(2)(F). We therefore propose to
approve ARS 49-432 and PCC 17.24.010 into the Arizona SIP. Arizona's
Ozone I-SIP submittals include numerous other state and county
provisions and a narrative description of how these provisions satisfy
CAA section 110(a)(2)(F). We are proposing to approve Arizona's SIP as
meeting the requirements of section 110(a)(2)(F); our evaluation of the
provisions cited in the Arizona's Ozone I-SIP submittals against the
requirements of section 110(a)(2)(F) is included in the TSD for this
proposed rule.
D. Reclassification of Regions for Ozone Episode Plans
The priority thresholds for classification of air quality control
[[Page 74355]]
regions are listed at 40 CFR 51.150, and the specific classifications
of air quality control regions in Arizona are listed at 40 CFR 52.121.
Consistent with the provisions of 40 CFR 51.153, reclassification of an
air quality control region must rely on the most recent three years of
air quality data. Under 40 CFR 51.151 and 51.152, regions classified
Priority I, IA, or II are required to have SIP-approved emergency
episode contingency plans, while those classified Priority III are not
required to have plans. We interpret 40 CFR 51.153 as establishing the
means for states to review air quality data and request a higher or
lower classification for any given region and as providing the
regulatory basis for the EPA to reclassify such regions, as
appropriate, under the authorities of CAA sections 110(a)(2)(G) and
301(a)(1).
The priority classification threshold for ozone under 40 CFR 51.150
is 195 micrograms per cubic meter, equivalent to 0.10 parts per million
(ppm), calculated as a one-hour maximum. Regions with one-hour ozone
concentrations greater than 0.10 ppm are classified as Priority I for
ozone under 40 CFR 51.150. All other regions are classified as Priority
III for ozone. Arizona's regional priority classifications for ozone
under 40 CFR 51.150 are located at 40 CFR 52.121. Currently, the
Maricopa Intrastate air quality control region (AQCR) and the Pima
Intrastate AQCR are classified as Priority I for ozone.
Air quality data from 2019-2021 indicate that the maximum one-hour
ozone concentrations monitored in two Arizona regions exceed the
Priority I threshold for one-hour ozone. The maximum one-hour ozone
concentration measured in the Maricopa Intrastate AQCR in this period
was 0.14 ppm; the maximum one-hour ozone concentration measured in the
Central Arizona Intrastate AQCR in this period was 0.11 ppm. We are
proposing to retain the classification of the Maricopa Intrastate AQCR
as Priority I and to reclassify the Central Arizona Intrastate AQCR
from Priority III to Priority I for ozone.
Air quality data from 2019-2021 also indicate that the maximum one-
hour ozone concentration monitored in the Pima Intrastate AQCR does not
exceed the Priority I threshold for one-hour ozone. The maximum one-
hour ozone concentration monitored in this region from 2019-2021 was
0.09 ppm. We are therefore proposing to reclassify the Pima Intrastate
AQCR from Priority I to Priority III for ozone.
If finalized, the reclassification of the Central Arizona
Intrastate AQCR from Priority III to Priority I for ozone will not
generate new requirements for Arizona to submit an emergency episode
contingency plans for this area because the provisions in Arizona's
existing emergency episode plan apply uniformly statewide. Thus, our
proposed reclassification of the Central Arizona Intrastate AQCR for
ozone also does not affect our proposed approval of the Arizona SIP
with respect CAA section 110(a)(2)(G) for the 2015 ozone NAAQS.
V. Statutory and Executive Order Reviews
Under the Clean Air Act, 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
plans 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); and
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.
The State did not evaluate environmental justice considerations as
part of its SIP submittal. There is no information in the record
inconsistent with the stated goals of Executive Order 12898 (59 FR
7629, February 16, 1994) of achieving environmental justice for people
of color, low-income populations, and indigenous peoples.
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 proposed 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, Ozone, Reporting and
recordkeeping requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: November 17, 2022.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2022-26359 Filed 12-2-22; 8:45 am]
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