SUPPLEMENTARY INFORMATION:

Throughout this document, the use of “we,” “us,” or “our” is intended to refer to the EPA. We use multiple abbreviations and terms in this proposed rule. While this list may not be exhaustive, for ease of reading and for reference purposes, the EPA defines the following terms and acronyms here:

ADEQ—Arizona Department of Environmental Quality

APA—Administrative Procedures Act

CAA—Clean Air Act

CBI—confidential business information

CTG—Control Techniques Guidelines

EPA—U.S. Environmental Protection Agency

GDF—gasoline dispensing facility

MCAQD—Maricopa County Air Quality Department

NO_X —oxides of nitrogen

RACT—Reasonably Available Control Technology

SIP—State Implementation Plan

VOC—volatile organic compounds

Table of Contents

I. Executive Summary

A. What action is the EPA taking?

B. What is the legal authority and what are the requirements?

II. Background

III. The EPA's Evaluation and Action

IV. Statutory and Executive Order Reviews

I. Executive Summary

A. What action is the EPA taking?

The EPA is making an interim final determination to defer the application of sanctions for the Phoenix-Mesa ozone nonattainment area for the 2008 8-hour ozone National Ambient Air Quality Standards (NAAQS). This determination is based on a proposed rule published elsewhere in this issue of the Federal Register . On January 10, 2025, the EPA finalized a limited approval and limited disapproval of a SIP submittal from the ADEQ related to MCAQD rules that establish requirements to limit VOC emissions from gasoline loading operations.^[1] These rules were submitted to satisfy the CAA section 182(b)(2) reasonably available control technology (RACT) requirement for these sources. The limited disapproval identified deficiencies in these rules that prevented a finding that the rules established RACT and required us to disapprove the RACT demonstration for these sources. As a result of this disapproval, the CAA requires offset sanctions under the CAA's nonattainment New Source Review program to be triggered 18 months after the action's effective date of February 10, 2025, and highway sanctions six ( printed page 51596) months later, unless the State submits rule revisions that establish RACT for the applicable sources. Because we are proposing to find that the rule deficiencies have been corrected, and the RACT requirement has been met, we are deferring sanctions.

B. What is the legal authority and what are the requirements?

The basis for allowing such an interim final action is section 553(b)(B) of the Administrative Procedures Act (APA) which provides that the notice and opportunity for comment requirements do not apply when the Agency finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Because the EPA has preliminarily determined that the deficiencies identified in the limited disapproval have been corrected under part D of title I of the CAA relief from sanctions should be provided as quickly as possible. The EPA believes it would be unfair to the State and its residents, and thus not in the public interest, for sanctions to remain in effect following the proposed approval, since the EPA has completed a thorough evaluation of the State's SIP revision and publicly stated its belief that the submittal is approvable. Therefore, the EPA is invoking the good cause exception under the APA in not providing an opportunity for comment before this action takes effect.^[2]

II. Background

On January 10, 2025, the EPA issued a final rule promulgating a limited approval and limited disapproval for the MCAQD rules listed in Table 1 that were submitted by ADEQ to the EPA for inclusion into the Arizona SIP (“2025 final rule”).^[3]

Sections 182(b)(2) and 182(f) of the CAA require that SIPs for ozone nonattainment areas classified as “Moderate” or above implement RACT for any source covered by a Control Techniques Guidelines (CTG) document and for any major source of VOC or oxides of nitrogen. The MCAQD must implement RACT-level controls because part of the area regulated by MCAQD is included in the Phoenix-Mesa area designated as nonattainment for ozone and classified as Moderate for the 2008 8-hour ozone NAAQS.^[4]

In our 2025 final rule, we determined that although the MCAQD rules strengthened the SIP and were largely consistent with the requirements of the CAA, the submitted rules contained deficiencies that precluded our full approval of the rules into the SIP. The 2025 final rule stated that MCAQD's previously submitted Rule 352 had the following provisions that did not satisfy the requirements of section 110 and part D of title I of the Act and therefore prevented full approval of the SIP revision:

1. Rule 352 outlined leak detection tests to be performed beyond the annual certification test, but the rule did not require those tests to be conducted periodically, nor did it establish any requirements for maintaining records or reporting the results.^[5] The 2025 final rule stated that this undermined the enforceability of the rule.

2. The rule allowed gasoline cargo tank owners and operators to be exempt from the annual testing if they demonstrated compliance through a test method “at least as stringent as” the tests specified in the rule. This language was not enforceable because it did not specify which alternative test methods are acceptable to qualify for the exemption or who would determine whether the alternative test methods met the required level of stringency. This ambiguity could allow changes to testing requirements without following the CAA's required SIP revision process.

The 2025 final rule also found that the following provisions in Rule 353 did not satisfy the requirements of section 110 and part D of title I of the Act and prevented full approval of the SIP revision:

1. Rule 353 did not require all sources subject to the rule's vapor tight standard to conduct periodic testing to demonstrate compliance. The rule included a weekly monitoring requirement, but that requirement did not ensure the use of a replicable test method for demonstrating vapor tightness. Rule 353 required a facility to first determine if there is a “potential vapor leak” prior to being required to determine the vapor tight status using applicable test methods. The rule allows owners and operators to choose from a menu of monitoring options with one option being “sight, sound, or smell.” ^[6] Although using sight, sound, or smell can play a role in identifying potential vapor leaks, allowing for that to potentially be the only method used could functionally allow for potential leak identification to be left solely to the operator's discretion and sensory inputs. Therefore, without a provision to periodically utilize methods beyond sight, sound, or smell, the 2025 final rule found that this provision undermined the enforceability of the rule's requirement for vapor tight compliance.

2. Rule 353 contained reporting requirements that applied to some but not all sources subject to Rule 353. While Rule 353 requires reporting of some compliance information for most sources, it did not include such a requirement for aviation gasoline.^[7] Given this framework, the EPA found that Rule 353 had a reporting gap, because there is no periodic compliance reporting required for loading of aviation gasoline at airports. As a result, the 2025 final rule found that this provision undermined the enforceability of the rule's requirement for vapor tight compliance.

( printed page 51597)

Pursuant to section 179 of the CAA and our regulations at 40 CFR part 52, the limited disapproval action on Rule 352 and Rule 353 under title I, part D of the Act started a sanctions clock for imposition of offset sanctions under the nonattainment new source review program 18 months after the action's effective date of February 10, 2025, and highway sanctions 6 months later than offset sanctions.

On October 1, 2025, the MCAQD revised Rule 352 and Rule 353, and on October 8, 2025, ADEQ submitted the rules to the EPA for approval into the Arizona SIP as shown in Table 2 below.

The revised MCAQD Rule 352 and Rule 353 in Table 2 are intended to address the deficiencies identified in our 2025 final rule. In the Proposed Rules section of this Federal Register , we have proposed approval of the revised MCAQD Rule 352 and conditional approval of the revised MCAQD Rule 353. Based on this proposed action, we believe that it is more likely than not that the State's submittal meets the applicable CAA requirements. Therefore, the EPA is making this interim final determination based on our concurrent proposal to approve the State's October 8, 2025 SIP submission to correct the deficiencies identified in the January 10, 2025, limited disapproval of Rule 352 and Rule 353. This interim final determination, effective on publication, defers the application of the offset and highway sanctions that were triggered by our January 10, 2025, final limited disapproval of Rule 352 and Rule 353 because we believe that the submittal corrects the deficiencies that triggered such sanctions.

While the EPA is not providing an opportunity for public comment before the deferral of CAA section 179 sanctions is effective, the EPA is providing the public with an opportunity to comment on this deferral of sanctions after the fact. In the event the EPA reverses its preliminary determination that the State has corrected the deficiencies (as explained in the proposed action), sanctions would become effective pursuant to 40 CFR 52.31(d)(2)(i). Additionally, the EPA is providing an opportunity to comment on the concurrent proposed action that is the basis for this interim final determination, so the public has an opportunity to comment on that action before any sanctions clock could be permanently stopped or any already-applied sanctions are permanently terminated. If the EPA finalizes the approval as proposed, then all sanctions and any sanction clocks triggered by our January 10, 2025, final limited approval and limited disapproval would be permanently terminated on the effective date of our final approval of Rule 352 and final conditional approval of Rule 353.

III. The EPA's Evaluation and Action

We are making an interim final determination to stay and defer CAA section 179 sanctions associated with our limited disapproval action on January 10, 2025, of MCAQD Rule 352 and MCAQD Rule 353. This determination is based on our concurrent proposal to fully approve MCAQD Rule 352 and conditionally approve MCAQD Rule 353, which, if finalized, would resolve the deficiencies identified in our limited disapproval that triggered sanctions under section 179 of the CAA.

The basis for allowing such an interim final action stems from section 553(b)(B) of the Administrative Procedures Act (APA), which provides that the notice and opportunity for comment requirements do not apply when the Agency finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Because the EPA has preliminarily determined that MCAQD Rule 352 and Rule 353, revised on October 1, 2025, addresses the deficiencies identified in the limited disapproval under part D of title I of the CAA, and we are proposing to determine that the revised Rule 352 is now fully approvable and revised Rule 353 is conditionally approvable, relief from sanctions should be provided as quickly as possible. In the case of sanctions, the EPA believes it would be both impracticable and contrary to the public interest to have to propose and provide an opportunity to comment before any relief is provided from the effect of sanctions. The EPA believes it would be unfair to the State and its residents, and thus not in the public interest, for sanctions to remain in effect following the proposed approval, since the EPA has completed a thorough evaluation of the State's SIP revision and publicly stated its belief that the submittal is approvable. Therefore, the EPA is invoking the good cause exception under the Administrative Procedure Act (APA) in not providing an opportunity for comment before this action takes effect.^[8] However, the EPA is still providing the public with a chance to comment on the EPA's determination after the effective date, and the EPA will consider any comments received in determining whether to reverse such action.

Section 553(d)(1) of the APA provides that final rules shall not become effective until 30 days after publication in the Federal Register , “except . . . a substantive rule which grants or recognizes an exemption or relieves a restriction.” The purpose of this provision is to, “give affected parties a reasonable time to adjust their behavior before the final rule takes effect.” ^[9] However, when the Agency grants or recognizes an exemption or relieves a restriction, affected parties do not need a reasonable time to adjust because the effect is not adverse. Because this rule relieves a restriction, the EPA finds good cause under 5 U.S.C. 553(d)(1) for this action to become effective on the date of publication of this action.

IV. Statutory and Executive Order Reviews

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

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993);
• Is not subject toExecutive Order 14192 (90 FR 9065, February 6, 2025) because SIP actions are exempt from review under Executive Order 12866; ( printed page 51598)
• 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 inExecutive Order 13132 (64 FR 43255, August 10, 1999);
• Is not subject toExecutive Order 13045 (62 FR 19885, April 23, 1997) because it proposes to approve a State program;
• Is not a significant regulatory action subject toExecutive 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.

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).

This action is subject to the Congressional Review Act (CRA), and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. The CRA allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and comment rulemaking procedures are impracticable, unnecessary, or contrary to the public interest (5 U.S.C. 808(2)). The EPA has made a good cause finding for this action as discussed in section II of this preamble, including the basis for that finding.

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 13, 2026. Filing a petition for reconsideration by the EPA Administrator of this action does not affect the finality of this action for the purpose of judicial review nor does it extend the time within which petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see CAA section 307(b)(2)).

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

91 FR 51595