81 FR 31571 - Partial Approval and Partial Disapproval of Air Quality State Implementation Plans; Arizona; Infrastructure Requirements for Nitrogen Dioxide and Sulfur Dioxide

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 81, Issue 97 (May 19, 2016)

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 or the Act) for the implementation, maintenance, and enforcement of the 2010 nitrogen dioxide (NO<INF>2</INF>) and 2010 sulfur dioxide (SO<INF>2</INF>) national ambient air quality standards (NAAQS). CAA section 110(a)(1) requires that each state adopt and submit a SIP for the implementation, maintenance, and enforcement of each NAAQS promulgated by EPA, and that 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, we are proposing to reclassify one region of the state for SO<INF>2</INF> emergency episode planning. EPA is also proposing to approve Arizona Revised Statutes related to conducting air quality modeling and providing modeling data to EPA into the Arizona SIP. We are taking comments on this proposal and plan to follow with a final action.

[Federal Register Volume 81, Number 97 (Thursday, May 19, 2016)]
[Proposed Rules]
[Pages 31571-31577]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-10985]



[[Page 31571]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2015-0472; FRL-9946-20-Region 9]


Partial Approval and Partial Disapproval of Air Quality State 
Implementation Plans; Arizona; Infrastructure Requirements for Nitrogen 
Dioxide and Sulfur Dioxide

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: 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 or the 
Act) for the implementation, maintenance, and enforcement of the 2010 
nitrogen dioxide (NO2) and 2010 sulfur dioxide 
(SO2) national ambient air quality standards (NAAQS). CAA 
section 110(a)(1) requires that each state adopt and submit a SIP for 
the implementation, maintenance, and enforcement of each NAAQS 
promulgated by EPA, and that 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, we are proposing to reclassify one region of the 
state for SO2 emergency episode planning. EPA is also 
proposing to approve Arizona Revised Statutes related to conducting air 
quality modeling and providing modeling data to EPA into the Arizona 
SIP. We are taking comments on this proposal and plan to follow with a 
final action.

DATES: Written comments must be received on or before June 20, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No. [EPA-R09-
OAR-2015-0472] at http://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 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, the full EPA 
public comment policy, information about CBI or multimedia submissions, 
and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Tom Kelly, Air Planning Office (AIR-
2), U.S. Environmental Protection Agency, Region IX, (415) 972-3856, 
[email protected].

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

Table of Contents

I. EPA's Approach to the Review of Infrastructure SIP Submissions
II. Background
    A. Statutory Framework
    B. Regulatory Background
    C. Changes to the Application of PSD Permitting Requirements 
With GHGs
III. State Submittals
IV. EPA's Evaluation and Proposed Action
    A. Proposed Approvals and Partial Approvals
    B. Proposed Disapprovals and Partial Disapprovals
    C. Proposed Approval of Arizona Revised Statutes Into the State 
SIP
    D. Proposed Reclassification of an Air Quality Control Region
    E. Request for Public Comments
V. Statutory and Executive Order Reviews

I. EPA's Approach to the Review of Infrastructure SIP Submissions

    EPA is acting upon several SIP submittals from Arizona that address 
the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) 
for the 2010 NO2 and 2010 SO2 NAAQS. The 
requirement for states to make a SIP submittal of this type arises out 
of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must 
make SIP submittals ``within 3 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),'' and 
these SIP submittals are 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 EPA's taking 
any action other than promulgating a new or revised NAAQS. Section 
110(a)(2) includes a list of specific elements that ``[e]ach such 
plan'' submittal must address.
    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, 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 part D of title I of the CAA, 
``regional haze SIP'' submittals required by EPA rule to address the 
visibility protection requirements of CAA section 169A, and 
nonattainment new source review (NSR) permit program submittals to 
address the permit requirements of CAA, title I, part D.
    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\ 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, 
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: 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 EPA 
to interpret some 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

[[Page 31572]]

submittal must meet the list of requirements therein, while EPA has 
long noted that this literal reading of the statute is internally 
inconsistent and would create a conflict with the nonattainment 
provisions in part D of title I of the Act, 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 EPA to 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, EPA must determine which provisions of section 
110(a)(2) are applicable for a particular infrastructure SIP submittal.
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    \2\ See, e.g., Rule To Reduce Interstate Transport of Fine 
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions 
to Acid Rain Program; Revisions to the NOX SIP Call; 
Final Rule. 70 FR 25162, at 25163-25165, May 12, 2005 (explaining 
relationship between timing requirement of section 110(a)(2)(D) 
versus section 110(a)(2)(I)).
    \3\ EPA notes that this ambiguity within 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, e.g., 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.
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    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 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, 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, EPA can elect to act on such submittals either 
individually or in a larger combined action.\4\ Similarly, 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, 
EPA has sometimes elected to act at different times on various elements 
and sub-elements of the same infrastructure SIP submittal.\5\
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    \4\ See, e.g., Approval and Promulgation of Implementation 
Plans; New Mexico; Revisions to the New Source Review (NSR) State 
Implementation Plan (SIP); Prevention of Significant Deterioration 
(PSD) and Nonattainment New Source Review (NNSR) Permitting, 78 FR 
4339, January 22, 2013 (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 PM2.5 NSR rule), 
and Approval and Promulgation of Air Quality Implementation Plans; 
New Mexico; Infrastructure and Interstate Transport Requirements for 
the 2006 PM2.5 NAAQS, 78 FR 4337, January 22, 2013 (EPA's 
final action on the infrastructure SIP for the 2006 PM2.5 
NAAQS).
    \5\ On December 14, 2007, the State of Tennessee, through the 
Tennessee Department of Environment and Conservation, made a SIP 
revision to EPA demonstrating that the State meets the requirements 
of sections 110(a)(1) and (2). EPA proposed action for 
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 
3213) and took final action on March 14, 2012 (77 FR 14976). On 
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA 
took separate proposed and final actions on all other section 
110(a)(2) infrastructure SIP elements of Tennessee's December 14, 
2007 submittal.
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    Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise 
with respect to infrastructure SIP submittal requirements for different 
NAAQS. Thus, EPA notes that not every element of section 110(a)(2) 
would be relevant, or 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 that new indicator species for the new NAAQS.
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    EPA notes that interpretation of section 110(a)(2) is also 
necessary when EPA reviews other types of SIP submittals required under 
the CAA. Therefore, as with infrastructure SIP submittals, 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 have to 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 emission 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), 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, 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, 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, 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\ EPA 
most recently issued guidance for infrastructure SIPs on September 13, 
2013 (2013 Infrastructure SIP Guidance).\8\ EPA developed this document 
to provide states with up-to-date guidance for infrastructure SIPs for 
any new or revised NAAQS. Within this

[[Page 31573]]

guidance, 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. EPA also made 
recommendations about many specific subsections of 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, EPA 
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, 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\ EPA notes, however, that nothing in the CAA requires 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 EPA provides guidance or regulations pertaining to such 
submittals. EPA elects to issue such guidance in order to assist 
states, as appropriate.
    \8\ Guidance on Infrastructure State Implementation Plan (SIP) 
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2), 
Memorandum from Stephen D. Page, September 13, 2013.
    \9\ EPA's September 13, 2013, guidance did not make 
recommendations with respect to infrastructure SIP submittals to 
address section 110(a)(2)(D)(i)(I). 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. Circuit 2012) which had 
interpreted the requirements of section 110(a)(2)(D)(i)(I). In light 
of the uncertainty created by ongoing litigation, 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 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, 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, 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 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 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, EPA's review of infrastructure SIP submittals 
with respect to the PSD program requirements in sections 110(a)(2)(C), 
(D)(i)(II), and (J) focuses upon the structural PSD program 
requirements contained in part C, title I of the Act and 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 (GHGs). By 
contrast, structural PSD program requirements do not include provisions 
that are not required under EPA's regulations at 40 Code of Federal 
Regulations (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 PM2.5 NAAQS. 
Accordingly, the latter optional provisions are types of provisions EPA 
considers irrelevant in the context of an infrastructure SIP action.
    For other section 110(a)(2) elements, however, 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 minor new sources. Thus, 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, 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 EPA's 
regulations that pertain to such programs.
    With respect to certain other issues, 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 that may be contrary to the CAA and EPA's 
policies addressing such excess emissions (``SSM''); (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 EPA; and (iii) existing 
provisions for PSD programs that may be inconsistent with current 
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186, 
December 31, 2002, as amended by 72 FR 32526, June 13, 2007 (``NSR 
Reform''). Thus, 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.\10\ It is important to 
note that EPA's approval of a state's infrastructure SIP submittal 
should not be construed as explicit or implicit re-approval of any 
existing potentially deficient provisions that relate to the three 
specific issues just described.
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    \10\ By contrast, 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 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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    EPA's approach to review of infrastructure SIP submittals is to 
identify the CAA requirements that are logically applicable to that 
submittal. 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 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 EPA evaluates adequacy of the infrastructure SIP 
submittal. EPA believes that a better approach is for states and EPA to 
focus attention on those elements of section 110(a)(2) of the CAA most 
likely to warrant a specific SIP revision due to the promulgation of a 
new or revised NAAQS or other factors.
    For example, EPA's 2013 Infrastructure SIP Guidance gives simpler 
recommendations with respect to carbon monoxide than other NAAQS 
pollutants to meet the visibility requirements of 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

[[Page 31574]]

for carbon monoxide need only state this fact in order to address the 
visibility prong of section 110(a)(2)(D)(i)(II).
    Finally, EPA believes that its approach with respect to 
infrastructure SIP requirements is based on a reasonable reading of 
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 EPA to take appropriately 
tailored action, depending upon the nature and severity of the alleged 
SIP deficiency. Section 110(k)(5) authorizes 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 comply with the CAA.\11\ Section 
110(k)(6) authorizes EPA to correct errors in past actions, such as 
past approvals of SIP submittals.\12\ Significantly, 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 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, EPA believes that section 
110(a)(2)(A) may be among the statutory bases that EPA relies upon in 
the course of addressing such deficiency in a subsequent action.\13\
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    \11\ For example, EPA issued a SIP call to Utah to address 
specific existing SIP deficiencies related to the treatment of 
excess emissions during SSM events. See ``Finding of Substantial 
Inadequacy of Implementation Plan; Call for Utah State 
Implementation Plan Revisions,'' 76 FR 21639, April 18, 2011.
    \12\ 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. 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).
    \13\ See, e.g., 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 at 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

    Section 110(a)(1) of the CAA requires states to make a SIP 
submission within 3 years after the promulgation of a new or revised 
primary NAAQS. Section 110(a)(2) includes a list of specific elements 
that ``[e]ach such plan'' submission must include. Many of the section 
110(a)(2) SIP elements relate to the general information and 
authorities that constitute the ``infrastructure'' of a state's air 
quality management program and SIP submittals that address these 
requirements are referred to as ``infrastructure SIPs.'' 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 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 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 for the nonattainment NSR portion of 
section 110(a)(2)(C) or the whole of section 110(a)(2)(I).

B. Regulatory Background

    In 2010 EPA promulgated revised NAAQS for NO2 and 
SO2, triggering a requirement for states to submit 
infrastructure SIPs. The NAAQS addressed by this infrastructure SIP 
proposal include the following:
     2010 NO2 NAAQS, which revised the primary 1971 
NO2 annual standard of 53 parts per billion (ppb) by 
supplementing it with a new 1-hour average NO2 standard of 
100 ppb, and retained the secondary annual standard of 53 ppb.\14\
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    \14\ 75 FR 6474, February 9, 2010. The annual NO 2 standard of 
0.053 ppm is listed in ppb for ease of comparison with the new 1-
hour standard.
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     2010 SO2 NAAQS, which established a new 1-hour 
average SO2 standard of 75 ppb, retained the secondary 3-
hour average SO2 standard of 500 ppb, and established a 
mechanism for revoking the primary 1971 annual and 24-hour 
SO2 standards.\15\
---------------------------------------------------------------------------

    \15\ 75 FR 35520, June 22, 2010. The annual SO 2 standard of 0.5 
ppm is listed in ppb for ease of comparison with the new 1-hour 
standard.
---------------------------------------------------------------------------

C. Changes to the Application of PSD Permitting Requirements With GHGs

    With respect to Elements (C) and (J), EPA interprets the Clean Air 
Act to require each state to make an infrastructure SIP submission for 
a new or revised NAAQS that demonstrates that the air agency has a 
complete PSD permitting program meeting the current requirements for 
all regulated NSR pollutants. The requirements of Element D(i)(II) may 
also be satisfied by demonstrating the air agency has a complete PSD 
permitting program correctly addressing all regulated NSR pollutants.
    On June 23, 2014, the United States Supreme Court issued a decision 
addressing the application of PSD permitting requirements to GHG 
emissions.\16\ The Supreme Court said that EPA may not treat GHGs as an 
air pollutant for purposes of determining whether a source is a major 
source required to obtain a PSD permit. The Court also said that EPA 
could continue to require that PSD permits, otherwise required based on 
emissions of pollutants other than GHGs, contain limitations on GHG 
emissions based on the application of Best Available Control Technology 
(BACT). In order to act consistently with its understanding of the 
Court's decision pending further judicial action to effectuate the 
decision, EPA is not continuing to apply EPA regulations that would 
require that SIPs include permitting requirements that

[[Page 31575]]

the Supreme Court found impermissible. Specifically, EPA is not 
applying the requirement that a state's SIP-approved PSD program 
require that sources obtain PSD permits when GHGs are the only 
pollutant (i) that the source emits or has the potential to emit above 
the major source thresholds, or (ii) for which there is a significant 
emissions increase and a significant net emissions increase from a 
modification (e.g., 40 CFR 51.166(b)(48)(v)). EPA anticipates a need to 
revise federal PSD rules in light of the Supreme Court opinion. In 
addition, EPA anticipates that many states will revise their existing 
SIP-approved PSD programs in light of the Supreme Court's decision. The 
timing and content of subsequent EPA actions with respect to EPA 
regulations and state PSD program approvals are expected to be informed 
by additional legal process before the United States Court of Appeals 
for the District of Columbia Circuit. At this juncture, EPA is not 
expecting states to have revised their PSD programs for purposes of 
infrastructure SIP submissions and is only evaluating such submissions 
to assure that the state's program correctly addresses GHGs consistent 
with the Supreme Court's decision.
---------------------------------------------------------------------------

    \16\ Utility Air Regulatory Group v. Environmental Protection 
Agency, 134 S.Ct. 2427.
---------------------------------------------------------------------------

III. State Submittals

    The Arizona Department of Environmental Quality (ADEQ) has 
submitted several infrastructure SIP submittals pursuant to EPA's 
promulgation of specific NAAQS, including:
     January 18, 2013--``Arizona State Implementation Plan 
Revision under the Clean Air Act Section 110(a)(1) and (2); 2010 
NO2 NAAQS.'' (2013 NO2 I-SIP Submittal)
     July 23, 2013--``Arizona State Implementation Plan 
Revision under the Clean Air Act Section 110(a)(1) and (2); 
Implementation of the 2010 Sulfur Dioxide (SO2) National 
Ambient Air Quality.'' (2013 SO2 I-SIP Submittal)
     December 3, 2015--``Arizona State Implementation Plan 
Revisions for 2008 Ozone and 2010 Nitrogen Dioxide NAAQS under Clean 
Air Act Section 110(a)(2)(D) and Revision for All Previous and Future 
NAAQS under CAA Section 11(a)(2)(K).'' (2015 Submittal)
    We find that these submittals meet the procedural requirements for 
public participation under CAA section 110(a)(2) and 40 CFR 51.102. We 
are proposing to act on all of these submittals, except the part of the 
2015 Submittal addressing the 2008 ozone standard which will be acted 
on separately. The submittals collectively address the infrastructure 
SIP requirements for the NO2 and SO2 NAAQS as 
described by this proposed rule. We refer to them collectively herein 
as ``Arizona's Infrastructure SIP Submittals.''

IV. EPA's Evaluation and Proposed Action

A. Proposed Approvals and Partial Approvals

    We have evaluated Arizona's Infrastructure SIP Submittals and the 
existing provisions of the Arizona SIP for compliance with the 
infrastructure SIP requirements (or ``elements'') of CAA section 
110(a)(2) and applicable regulations in 40 CFR part 51 (``Requirements 
for Preparation, Adoption, and Submittal of State Implementation 
Plans''). The Technical Support Document (TSD), which is available in 
the docket to this action, includes our evaluation for these 
infrastructure SIP elements, as well as our evaluation of various 
statutory and regulatory provisions identified and submitted by 
Arizona. For some elements, our analysis refers to older TSDs for prior 
NAAQS, which have also been included in the docket.
    Based upon this analysis, we propose to approve the 2010 
NO2, and 2010 SO2 Arizona Infrastructure SIP with 
respect to the following Clean Air Act requirements:
     110(a)(2)(A): Emission limits and other control measures 
(all jurisdictions, both pollutants).
     110(a)(2)(B): Ambient air quality monitoring/data system 
(all jurisdictions, both pollutants).
     110(a)(2)(C) (in part): Program for enforcement of control 
measures and regulation of new stationary sources (ADEQ and Pinal 
County for both pollutants).
     110(a)(2)(D) (in part, see below): Interstate Pollution 
Transport.
    [ssquf] 110(a)(2)(D)(i)(I)(in part)--significant contribution to 
nonattainment, or prongs 1 and 2 (all jurisdictions for the 
NO2 NAAQS).
    [ssquf] 110(a)(2)(D)(i)(I) (in part)--interference with 
maintenance, or prong 3 (ADEQ and Pinal County for both pollutants).
    [ssquf] 110(a)(2)(D)(ii) (in part)--interstate pollution abatement 
Sec.  126 (ADEQ and Pinal County for both pollutants) and international 
air pollution Sec.  115 (all jurisdictions, both pollutants).
     110(a)(2)(E): Adequate resources and authority, conflict 
of interest, and oversight of local governments and regional agencies 
(all jurisdictions, both pollutants).
     110(a)(2)(F): Stationary solderurce monitoring and 
reporting (all jurisdictions, both pollutants).
     110(a)(2)(G): Emergency episodes (all jurisdictions, both 
pollutants).
     110(a)(2)(H): SIP revisions (all jurisdictions, both 
pollutants).
     110(a)(2)(J) (in part): Consultation with government 
officials, Sec.  121 (all jurisdictions, both pollutants); public 
notification of exceedances, Sec.  127 (all jurisdictions, both 
pollutants); and prevention of significant deterioration (PSD) and 
visibility protection (ADEQ and Pinal County, both pollutants).
     110(a)(2)(K): Air quality modeling and submission of 
modeling data (all jurisdictions, both pollutants).
     110(a)(2)(L): Permitting fees (all jurisdictions, both 
pollutants).
     110(a)(2)(M): Consultation/participation by affected local 
entities (all jurisdictions, both pollutants).
    EPA is taking no action on Section 110(a)(2)(D)(i)(I) prongs 1 and 
2 for the 2010 SO2 NAAQS.

B. Proposed Partial Disapprovals

    EPA proposes to disapprove Arizona's NO2 and 
SO2 Infrastructure SIP Submittals with respect to the 
following infrastructure SIP requirements:
     110(a)(2)(C) (in part): Program for enforcement of control 
measures and regulation of new and modified stationary sources 
(Maricopa County and Pima County, both pollutants).
     110(a)(2)(D) (in part, see below): Interstate pollution 
transport,
    [ssquf] 110(a)(2)(D)(i)(II) (in part)--interference with 
maintenance, or prong 3 (Maricopa County and Pima County, both 
pollutants).
    [ssquf] 110(a)(2)(D)(i)(II)--visibility transport or prong 4 (all 
jurisdictions, both pollutants).
    [ssquf] 110(a)(2)(D)(ii) (in part)--interstate pollution abatement 
Sec.  126 (Maricopa County and Pima County, both pollutants).
     110(a)(2)(J) (in part): PSD and visibility protection 
(Maricopa County and Pima County, both pollutants)
    As explained more fully in our TSD, we are proposing to disapprove 
the Maricopa County and Pima County portions of Arizona's 
Infrastructure Submittals with respect to the PSD-related requirements 
of sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), 110(a)(2)(D)(ii), and 
the PSD requirements of 110(a)(2)(J). The Arizona SIP does not fully 
satisfy the statutory and regulatory requirements for PSD permit 
programs under part C, title I of the Act, because Maricopa County and 
Pima County currently implement the Federal PSD program in 40 CFR 52.21 
for all regulated NSR pollutants, pursuant to delegation agreements 
with EPA. Accordingly, although the Arizona SIP remains

[[Page 31576]]

deficient with respect to PSD requirements in both the Maricopa County 
and Pima County portions of the SIP, these deficiencies are adequately 
addressed in both areas by the federal PSD program and do not create 
new FIP obligations.
    We are also proposing to disapprove all jurisdictions in Arizona 
for 110(a)(2)(D)(i)(II)--protecting visibility from interstate 
transport or prong 4. Because Arizona relies on a FIP to control 
sources under the Regional Haze Rule, they do not meet the requirements 
of this portion of 110(a)(2)(D) for NO2 and SO2. 
However, because a FIP is already in place to meet the requirements, no 
additional FIP obligation is triggered by our disapproval of this 
portion of Arizona's infrastructure SIP. EPA will continue to work with 
Arizona to incorporate FIP emission limits and control technologies 
into the state SIP.

C. Proposed Approval of Arizona Revised Statutes Into the State SIP

    Included in ADEQ's 2015 Submittal was a request to approve Arizona 
Revised Statutes (ARS) Sec.  49-104(A)(3) and (B)(1) into the state 
SIP. Arizona has requested that these statutes be included in order to 
meet the air quality modeling and data submission requirements of 
110(a)(2)(K) for the 2010 NO2 and 2010 SO2 NAAQS, 
and past and future NAAQS, including previous Infrastructure SIP 
disapprovals for the 1997 ozone, 1997 PM2.5, 2006 
PM2.5, 2008 ozone, and 2008 lead NAAQS.
    110(a)(2)(K) requires states to provide for the performance of air 
quality modeling and the submission of air quality modeling to EPA upon 
request. On November 5, 2012, EPA disapproved 110(a)(2)(K) with respect 
to ADEQ's submittals for the 1997 8-hour ozone and 1997 and 2006 
PM2.5 NAAQS (77 FR 66398). EPA again disapproved this I-SIP 
element for the 2008 Pb and 2008 O3 NAAQS on July 14, 2015 
(80 FR 40906). EPA disapproved those submissions because ADEQ, Pima, 
Pinal, and Maricopa Counties did not submit adequate provisions or 
narrative information related to the 110(a)(2)(K) requirements.
    EPA has reviewed the SIP approved provisions, narrative 
information, and ARS Sec. Sec.  49-104(A)(3) and (B)(1) contained 
within the 2015 Submittal. EPA is proposing to approve 110(a)(2)(K) as 
described in part A of this section, and detailed further in the docket 
for this action, based upon that review. EPA is also proposing to 
approve ARS Sec. Sec.  49-104(A)(3) and (B)(1) into the state SIP. If 
approval of these statutes into the Arizona SIP is finalized, previous 
disapprovals for this element, found at 77 FR 66398 and 80 FR 40906, 
will be corrected.

D. Proposed Reclassification for Emergency Episode Planning

    The priority thresholds for classification of air quality control 
regions are listed in 40 CFR 51.150 while 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. 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.\17\ 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 EPA to 
reclassify such regions, as appropriate, under the authorities of CAA 
sections 110(a)(2)(G) and 301(a)(1).
---------------------------------------------------------------------------

    \17\ 40 CFR 51.151 and 51.152.
---------------------------------------------------------------------------

    For SO2, the Pima Intrastate region is classified as 
Priority II while the Central Arizona and Southeast Arizona Intrastate 
regions are classified as Priority IA. All other areas of the state are 
Priority III. After reviewing Arizona's 2013-2015 air quality data for 
the Pima air quality control region (AQCR), we are proposing to 
reclassify this region from Priority II to priority III, thus relieving 
the AQCR of the emergency episode plan requirement for the 2010 
SO2 NAAQS.
    The classification thresholds for SO2 are unique in that 
thresholds are prescribed for three different averaging periods. The 
thresholds and ranges for Priority II classification are as follows:
     3-hour: Greater than 0.5 ppm,
     24-hour: 0.10-0.17 ppm, and
     Annual arithmetic mean: 0.02-0.04 ppm.
    Areas with ambient air concentrations that are below the Priority 
II threshold are classified as Priority III. There is one 
SO2 monitor within the Pima Intrastate region, located in 
Tucson and operated and maintained by Pima County. The highest 
SO2 levels at the Tucson monitor were 1.1 ppb (.0011 ppm) 
for the 24-hour average and .24 ppb (.00024 ppm) for the annual 
arithmetic mean. Both occurred in 2013. In addition, the highest 1-hour 
SO2 concentration at the Tucson monitor during this period 
was 9.6 ppb (.0096 ppm), which occurred in 2014. Monitored levels in 
2015 were even lower than the previous two years. The highest 1 hour 
level was 5.1 ppb (.0051 ppm) and the annual arithmetic mean was .16 
ppb (.00016 ppm) While there are no 1-hour SO2 
classification thresholds in 40 CFR 51.150(b), by definition these 
concentrations reinforce the fact that 3-hour and 24-hour levels have 
not exceeded the respective Priority II classification thresholds 
because they are lower than such thresholds.
    Thus, we propose to reclassify the Pima Intrastate AQCR to Priority 
III for SO2. Should we finalize this reclassification, the 
Pima Intrastate region would no longer be required to have an emergency 
episode contingency plan in place for SO2.

E. Request for Public Comments

    EPA is soliciting public comments on the issues discussed in this 
document or on other relevant matters. We will accept comments from the 
public on this proposal for the next 30 days. We will consider these 
comments before taking final action.

V. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review.

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the PRA because this action does not impose additional requirements 
beyond those imposed by state law.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action will not impose any requirements on small entities beyond those 
imposed by state law.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. This action does not impose additional requirements 
beyond those imposed by state law.

[[Page 31577]]

Accordingly, no additional costs to State, local, or tribal 
governments, or to the private sector, will result from this action.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

F. Executive Order 13175: Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175, because 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, and will not 
impose substantial direct costs on tribal governments or preempt tribal 
law. Thus, Executive Order 13175 does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. This action is not subject to 
Executive Order 13045 because it does not impose additional 
requirements beyond those imposed by state law.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    Section 12(d) of the NTTAA directs the EPA to use voluntary 
consensus standards in its regulatory activities unless to do so would 
be inconsistent with applicable law or otherwise impractical. The EPA 
believes that this action is not subject to the requirements of section 
12(d) of the NTTAA because application of those requirements would be 
inconsistent with the CAA.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Population

    The EPA lacks the discretionary authority to address environmental 
justice in this rulemaking.

List of Subjects in 40 CFR Part 52

    Approval and promulgation of implementation plans, Environmental 
protection, Air pollution control, Incorporation by reference, 
Intergovernmental relations, Nitrogen dioxide, Reporting and 
recordkeeping requirements, and Sulfur dioxide.

    Dated: April 29, 2016.
Jared Blumenfeld,
Regional Administrator, Region IX.
[FR Doc. 2016-10985 Filed 5-18-16; 8:45 am]
 BILLING CODE 6560-50-P