[Federal Register Volume 89, Number 1 (Tuesday, January 2, 2024)]
[Proposed Rules]
[Pages 39-42]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-28528]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2023-0620; FRL-11601-01-R9]


Air Plan Revisions; Arizona; Arizona Department of Environmental 
Quality; Stationary Source Permits

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve two revisions to the Arizona Department of Environmental 
Quality (ADEQ) portion of the Arizona State Implementation Plan (SIP). 
In this action, we are proposing to approve revisions submitted by the 
ADEQ governing the issuance of permits for stationary sources in 
accordance with changes that the EPA has made to its New Source Review 
(NSR) program regulations under the Clean Air Act (CAA or ``the Act''). 
We are also proposing to determine that with these revisions, the 
ADEQ's NSR program satisfies the requirements for the preconstruction 
review and permitting of major sources and major modifications under 
part D of title I of the Act for areas designated nonattainment with 
the 2015 ozone National Ambient Air Quality Standards (NAAQS) with a 
Marginal classification, for areas and sources within the ADEQ's 
permitting jurisdiction. We are taking comments on this proposal and 
plan to follow with a final action.

DATES: Comments must be received on or before February 1, 2024.

ADDRESSES: Submit your comments, identified by Docket ID No EPA-R09-
OAR-2023-0620 at https://www.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 the disclosure of which 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: Camille Cassar, EPA Region IX, 75 
Hawthorne St., San Francisco, CA 94105; by phone: (415) 947-4164; or by 
email to [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 rules did the State submit?
    B. Are there other versions of these rules?
    C. What is the purpose of the submitted rules?
II. The EPA's Evaluation
    A. What is the background for this action?
    B. How is the EPA evaluating these rules?

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    C. Do the rules meet the evaluation criteria?
III. Proposed Action and Public Comment
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

I. The State's Submittal

A. What rules did the State submit?

    The rules that are the subject of the EPA's current proposed action 
were adopted by the ADEQ and submitted to the EPA on December 6, 2022 
(``December 2022 NSR submittal''). The ADEQ is the governor's designee 
for submitting official revisions of the Arizona SIP to the EPA. Table 
1 below identifies the rules reviewed in this action for approval into 
the Arizona SIP.

                         Table 1--SIP Submittal
------------------------------------------------------------------------
                                                               State
                                                          effective date
         Rule citation                    Title            of rule to be
                                                               added
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R18-2-101 (except 20)..........  Definitions............      05/04/2022
R18-2-404......................  Offset Standards.......      05/04/2022
------------------------------------------------------------------------

    The ADEQ's December 2022 NSR submittal was determined to be 
complete by operation of law, according to Appendix V of 40 CFR part 
51, on June 6, 2023.

B. Are there other versions of these rules?

    The SIP-approved versions of the submitted rules are identified 
below in Table 2. The ADEQ's December 2022 NSR submittal also requests 
that, as part of this action, we remove from the ADEQ portion of the 
Arizona SIP the previous SIP-approved versions of the same rules. The 
rules requested for removal from the SIP are listed in Table 2 below.

                                       Table 2--Current SIP Approved Rules
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     Rule addressed in this TSD and                                       Existing SIP rule(s) requested to be
               rulemaking                            Title              removed from SIP (state effective date)
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R18-2-101 (except 20)...................  Definitions................  R18-2-101 (except 20) (02/01/2020).
R18-2-404...............................  Offset Standards...........  R18-2-404 (03/21/2017).
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C. What is the purpose of the submitted rules?

    The purpose of these submitted revisions for the ADEQ's NSR program 
is to update its rules to ensure consistency with certain changes that 
the EPA has made to its NSR program rules, and to address the CAA's 
statutory and regulatory requirements for Nonattainment New Source 
Review (NNSR) permit programs in areas designated nonattainment with 
the 2015 ozone NAAQS with a Marginal classification, for areas and 
sources within the ADEQ's permitting jurisdiction.

II. The EPA's Evaluation

A. What is the background for this action?

    This action focuses on the preconstruction permitting requirements 
for stationary sources, also called New Source Review, in title I of 
the CAA and the EPA's implementing regulations addressing the SIP 
requirements for state NSR programs at 40 CFR part 51, subpart I.
    The action focuses on two necessary revisions to the ADEQ's SIP-
approved NSR program rules in accordance with changes that the EPA has 
made to its NSR program rules and provides the EPA's findings on 
whether these SIP revisions submitted by the ADEQ meet federal NSR 
requirements.
    Submitted Rule Arizona Administrative Code (A.A.C.) R18-2-101 
(except 20) contains a change to the definition of categorical sources 
for ``municipal incinerators'' as compared with the prior version of 
the rule that is currently included in the Arizona SIP. The ADEQ 
amended its definition of ``categorical sources'' to include municipal 
incinerators capable of charging more than 50 tons of refuse per day, 
as compared with the previous version of the definition, which applied 
only to those capable of charging more than 250 tons per day. This 
change was made to ensure consistency with CAA section 169(a) and 
federal regulatory requirements related to major NSR applicability for 
municipal incinerators in the EPA's regulations governing state Major 
NSR programs at 40 CFR 51.165-51.166, as updated by the EPA's 2021 
Error Corrections Rule.\1\
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    \1\ See 86 FR 37918, 37922 (July 19, 2021).
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    Submitted Rule A.A.C. R18-2-404 eliminates the ozone interprecursor 
trading provision that was included in the prior version of the rule 
that is currently included in the Arizona SIP. This change was made to 
ensure consistency with the federal rules governing NNSR programs 
regulating ozone precursors in 40 CFR 51.165, which were also updated 
as part of the EPA's Error Corrections Rule.\2\
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    \2\ See 86 FR 37918, 37924.
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    The ADEQ requested that the EPA replace the current SIP-approved 
versions of R18-2-101 and R18-2-404 with the submitted revised 
versions.
    The December 2022 NSR submittal also addresses state NNSR program 
requirements for the 2015 ozone NAAQS. On October 26, 2015, the EPA 
issued a final rule revising the NAAQS for ozone, reducing the 
standards to a level of 0.070 ppm.\3\ On June 4, 2018, certain portions 
of Arizona (Yuma and Phoenix-Mesa) were designated and classified as 
Marginal nonattainment for the 2015 ozone NAAQS.\4\ This designation of 
certain portions of Arizona as federal ozone nonattainment areas for 
the 2015 ozone NAAQS triggered the requirement for the ADEQ to provide 
a SIP submittal addressing the NNSR program requirements for this NAAQS 
and classification for sources and areas within its permitting

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jurisdiction.\5\ Therefore, this action also addresses whether the 
ADEQ's NNSR program, as revised by the rules in this SIP submittal, 
satisfies the applicable CAA NNSR program requirements for the 2015 
ozone NAAQS for the Marginal classification for sources and areas 
within its permitting jurisdiction.
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    \3\ 40 CFR 50.19; see 80 FR 65292, 65452-53.
    \4\ 83 FR 25776. We note that on October 7, 2022, the EPA issued 
a final rule determining that while the Yuma nonattainment area 
attained the 2015 ozone NAAQS, the Phoenix-Mesa nonattainment area 
failed to attain by the applicable attainment date and therefore 
would be reclassified as a Moderate nonattainment area for the 2015 
ozone NAAQS. 87 FR 60897.
    \5\ CAA section 182(a); 40 CFR 51.1314.
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B. How is the EPA evaluating these rules?

    The EPA reviewed the December 2022 NSR submittal for compliance 
with CAA requirements for SIPs in general as set forth in CAA section 
110(a)(2), the requirements for state stationary source preconstruction 
permitting programs in 40 CFR part 51, subpart I, including certain 
changes made to those rules in the Error Corrections Rule, and the 
requirements related to SIP revisions in CAA sections 110(l) \6\ and 
193.\7\ Our review also evaluated the ADEQ's NNSR program, as revised 
by the submitted revised rules, for compliance with the state NNSR 
program requirements applicable to ozone nonattainment areas with a 
Marginal classification.
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    \6\ CAA section 110(l) requires SIP revisions to be subject to 
reasonable notice and public hearing prior to adoption and submittal 
by states to the EPA and prohibits the EPA from approving any SIP 
revision that would interfere with any applicable requirement 
concerning attainment and reasonable further progress, or any other 
applicable requirement of the CAA.
    \7\ CAA section 193 prohibits the modification of any SIP-
approved control requirement in effect before November 15, 1990 in a 
nonattainment area, unless the modification ensures equivalent or 
greater emission reductions of the relevant pollutants.
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C. Do the rules meet the evaluation criteria?

    With respect to procedural requirements, CAA sections 110(a)(2) and 
110(l) require that revisions to a SIP be adopted by the state after 
reasonable notice and public hearing. Based on our review of the public 
process documentation included in the December 2022 NSR submittal, we 
find that the ADEQ has provided sufficient evidence of public notice, 
opportunity for comment and a public hearing prior to adoption and 
submittal of the rules to the EPA.
    We have evaluated the rule revisions in the December 2022 NSR 
submittal with respect to the CAA requirements for SIPs in general as 
set forth in CAA section 110(a)(2), the requirements for state 
stationary source preconstruction permitting programs in 40 CFR part 
51, subpart I, including recent changes to the requirements for State 
stationary source preconstruction permitting programs in 40 CFR part 
51, subpart I, made in the EPA's Error Corrections Rule, as described 
above, and we find that the submittal satisfies these requirements. In 
addition, we have evaluated the ADEQ's NNSR program, as revised by the 
submitted revised rules, for compliance with the NNSR requirements 
applicable to ozone nonattainment areas with a Marginal classification, 
and have determined that this program satisfies the applicable CAA and 
regulatory requirements for NNSR permit programs under part D of title 
I of the Act for all relevant ozone NAAQS, specifically including the 
requirements applicable to areas designated nonattainment for the 2015 
ozone NAAQS with a Marginal classification, for the areas and sources 
within the ADEQ's permitting jurisdiction.
    Regarding the additional substantive requirements of CAA sections 
110(l) and 193, our action will result in a more stringent SIP, while 
not relaxing any existing provision contained in the SIP. We have 
concluded that our action would comply with section 110(l) because our 
approval of these rules will not interfere with any applicable 
requirement concerning attainment and reasonable further progress, or 
any other CAA applicable requirement. In addition, our approval of 
these rules will not relax any pre-November 15, 1990 requirement in the 
SIP, and therefore changes to the SIP resulting from this action ensure 
greater or equivalent emission reductions of the nonattainment 
pollutants and their precursors in the District; accordingly, we have 
concluded that our action is consistent with the requirements of CAA 
section 193.
    Our TSD contains a more detailed discussion of our analysis of the 
December 2022 NSR submittal.

III. Proposed Action and Public Comment

    As authorized in section 110(k)(3) of the Act, the EPA is proposing 
to fully approve the submitted rules into the Arizona SIP because they 
fulfill all relevant CAA requirements, and to remove the prior version 
of these rules from the SIP. We have concluded that our approval of the 
submitted rules would comply with the relevant provisions of CAA 
sections 110(a)(2), 110(l), 165, 172(c)(5), 173, and 193, and 40 CFR 
51.160-51.166. We are also proposing to find that with the submitted 
rule revisions, the ADEQ's NSR program satisfies the requirements for 
the preconstruction review and permitting of major sources and major 
modifications under part D of title I of the Act for areas designated 
nonattainment with the 2015 ozone NAAQS with a Marginal classification, 
for the areas and sources within the ADEQ's permitting jurisdiction. If 
we finalize this action as proposed, our action will be codified 
through revisions to 40 CFR 52.220a (Identification of plan-in part).
    We will accept comments from the public on this proposal until 
February 1, 2024.

IV. Incorporation by Reference

    In this rule, the EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by 
reference the following the ADEQ rules: A.A.C. R18-2-101 (except 20) 
and R18-2-404, as described in Table 1 of this proposal. These rules 
are intended to address the CAA's statutory and regulatory requirements 
for New Source Review permit programs for major sources emitting 
nonattainment air pollutants and their precursors under parts C and D 
of title I of the CAA. The EPA has made, and will continue to make, 
these materials available through https://www.regulations.gov and at 
the EPA Region IX Office (please contact the person identified in the 
FOR FURTHER INFORMATION CONTACT section of this preamble for more 
information).

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 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.);

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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); 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.
    Executive Order 12898 (Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
Feb. 16, 1994) (E.O. 12898) directs Federal agencies to identify and 
address ``disproportionately high and adverse human health or 
environmental effects'' of their actions on minority populations and 
low-income populations to the greatest extent practicable and permitted 
by law. The EPA defines environmental justice (EJ) as ``the fair 
treatment and meaningful involvement of all people regardless of race, 
color, national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.'' The EPA further defines the term fair treatment to mean 
that ``no group of people should bear a disproportionate burden of 
environmental harms and risks, including those resulting from the 
negative environmental consequences of industrial, governmental, and 
commercial operations or programs and policies.''
    The ADEQ did not evaluate environmental justice considerations as 
part of its SIP submittal; the CAA and applicable implementing 
regulations neither prohibit nor require such an evaluation. The EPA 
did not perform an EJ analysis and did not consider EJ in this action. 
Due to the nature of the action being taken here, this action is 
expected to have a neutral to positive impact on the air quality of the 
affected area. Consideration of EJ is not required as part of this 
action, and there is no information in the record inconsistent with the 
stated goal of E.O. 12898 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 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, Nitrogen oxides, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: December 20, 2023.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2023-28528 Filed 12-29-23; 8:45 am]
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