State Implementation Plan Revision

New Source Review 

Supplemental Information

Air Quality Division

May 2014

5/8/2014 EPA REVIEW DRAFT
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NSR SIP Revision: Supplemental Information 3 May 2014

1 Introduction

The purpose of this supplement to the State Implementation Plan: New Source Review 

submitted by ADEQ on October 29, 2012 (“2012 SIP Revision”), is to provide 

clarification of the division of jurisdiction over sources subject to major and minor new 

source review (NSR) throughout Arizona. Section 2 provides a complete explanation of 

how jurisdiction is divided among ADEQ and various county agencies. Section 3 updates 

specific SIP elements related to jurisdiction.

2 Agency Jurisdiction

As required by 40 C.F.R. § 51.162, this section identifies “the State or local agency

which will be responsible for meeting the requirements of [40 C.F.R. Part 51, Subpart I, 

‘Review of New Sources and Modifications’] in each area of the State.” This supplement 

also addresses requirements of section 110(a)(2)(E)(i) of the Clean Air Act, 42 U.S.C. § 

7410(a)(2)(E)(i) (adequate personnel, funding and authority to carry out the SIP), and 40 

C.F.R. § 51.240 (identification of organizations that will participate in implementing and 

enforcing the SIP) with respect to NSR.

2.1 Statutory Authority

The division of jurisdiction between ADEQ and county air pollution control agencies in 

Arizona is governed by A.R.S. § 49-402(A) and (B), which provide as follows:1

A. The department [ADEQ] shall have original jurisdiction over such 

sources, permits and violations that pertain to:

1. Major sources in any county that has not received approval from the 

administrator for new source review under the clean air act and prevention 

of significant deterioration under the clean air act.

2. Smelting of metal ore.

3. Petroleum refineries.

4. Coal fired electrical generating stations.

5. Portland cement plants.

6. Air pollution by portable sources.

7. Air pollution by mobile sources for the purpose of regulating those 

sources as prescribed by article 5 of this chapter and consistent with the 

clean air act.

 

1 A certified copy of A.R.S. § 49-402 was included in the Supplemental Information to the 2012 New

Source Review State Implementation Plan submitted on September 6, 2013.
NSR SIP Revision: Supplemental Information 4 May 2014

8. Sources that are subject to title V of the clean air act and that are located 

in a county for which the administrator has disapproved that county's title V 

permit program if the department has a title V program that has been 

approved by the administrator. On approval of that county's title V permit 

program by the administrator, the county shall resume jurisdiction over 

those sources.

B. Except as specified in subsection A of this section, the review, issuance, 

administration and enforcement of permits issued pursuant to this chapter 

shall be by the county or multi-county air quality control region pursuant to 

the provisions of article 3 of this chapter. After the director has provided 

prior written notice to the control officer describing the reason for asserting 

jurisdiction and has provided an opportunity to confer, the county or multicounty air quality control region shall relinquish jurisdiction, control and 

enforcement over such permits as the director designates and at such times 

as the director asserts jurisdiction at the state level. The order of the director 

which asserts state jurisdiction shall specify the matters, geographical area, 

or sources over which the department shall exercise jurisdiction and control. 

Such state authority shall then be the sole and exclusive jurisdiction and 

control to the extent asserted, and the provisions of this chapter shall 

govern, except as provided in this chapter, until jurisdiction is surrendered 

by the department to such county or region.

EPA last approved section 49-402 into the SIP on June 8, 2000, 65 Fed. Reg. 36353, 

36358 (June 8, 2000); 40 C.F.R. § 52.120(c)(96)(i)(A)(2). The legislature amended the 

statute in 2002 to clarify section 49-402(A)(8) relating to jurisdiction over title V sources. 

2002 Ariz. Sess. Laws Ch. 110, § 1. ADEQ included the current version of section 49-

402 in the September 6, 2013 supplement to the October 2012 NSR SIP Revision.

When ADEQ has jurisdiction over sources under A.R.S. § 49-402(A) or (B), it may

delegate authority to administer the state air quality program with respect to those sources 

to a county under A.R.S. § 49-107(A):

The director may delegate to a local environmental agency, county health 

department, public health services district or municipality any functions, powers or 

duties which the director believes can be competently, efficiently and properly 

performed by the local agency if the local agency accepts the delegation and agrees 

to perform the delegated functions, powers and duties according to the standards of 

performance required by law and prescribed by the director.

EPA approved section 49-107 into the SIP on November 5, 2012. 77 Fed. Reg. 66398, 

66404 (Nov. 5, 2012); 40 C.F.R. 52.120(c)(152)(ii)(A)(2)(iv).

2.2 ADEQ Jurisdiction

2.2(a) Stationary Source Categories

Section 49-402(A) confers on ADEQ unconditional original jurisdiction over five 

stationary source categories: smelting of metal ores, coal fired electrical generating 
NSR SIP Revision: Supplemental Information 5 May 2014

stations, petroleum refineries, Portland cement plants and portable sources. Thus, ADEQ 

has original jurisdiction over these source categories throughout the state, regardless of 

whether they are located in a county with its own air pollution control program.

2

2.2(b) Major Sources

Under subsection (1), ADEQ has original jurisdiction over major sources in a county

“that has not received approval from the administrator [of EPA] for new source review ...

and prevention of significant deterioration [PSD].”3(Emphasis added.) The plain 

language of subsection (1) gives ADEQ original jurisdiction over all major sources in a 

county, unless the county has obtained EPA approval of both the new source review and 

PSD programs.4 Because this subsection covers only major sources, ADEQ interprets 

“new source review” to mean nonattainment new source review of major sources as 

required by Title I, Part D of the Clean Air Act. In addition, ADEQ interprets “approval 

from the administrator” to include a delegation by EPA of authority to administer the

PSD program under 40 C.F.R. § 52.21. We note that in an August 11, 1994 letter 

(attached as Appendix A), EPA confirmed that Maricopa and Pima Counties were 

approved to operate the PSD program pursuant to EPA’s delegation of the PSD program 

to these counties.

In short, under subsection (1), ADEQ has original jurisdiction over all major sources in 

any county that lacks EPA SIP approval or delegation for either nonattainment NSR or 

PSD. This includes the 12 counties that do not have any form of air pollution control 

program: Apache, Cochise, Coconino, Gila, Graham, Greenlee, La Paz, Mohave, Navajo, 

Santa Cruz, Yavapai and Yuma.

Maricopa and Pima Counties have SIP-approved nonattainment NSR programs and EPA 

delegation to administer 40 C.F.R. § 52.21. ADEQ therefore does not have original 

jurisdiction over major sources in those counties. 

Pinal County has a SIP-approved PSD program but lacks any form of EPA approval for 

nonattainment NSR. ADEQ therefore has original jurisdiction over major sources in Pinal 

County, but has delegated that jurisdiction to the County under A.R.S. 49-107. A copy of 

relevant excerpts from the current delegation agreement between ADEQ and Pinal 

County is attached as Appendix B.

It should be noted that the Pinal County delegation agreement excerpts and the delegation 

agreement and assertion of jurisdiction discussed in section 2.3 below (and included in 

Appendix D) are provided for informational purposes only and should not be 

 

2 Although not relevant to NSR, ADEQ notes that it also has unconditional original jurisdiction over mobile 

sources throughout the state under A.R.S. § 49-402(A)(7).

3

Subsection (8) gives ADEQ original jurisdiction over Title V sources in any county which does not have a 

Title V program that has been approved by EPA. This subsection currently has no effect on ADEQ’s 

jurisdiction. Maricopa, Pima and Pinal Counties all have fully approved Title V programs and therefore are 

not subject to this subsection. By its literal terms, this subsection also does not apply to the twelve counties 

that have never submitted a Title V program.

4 At first glance, this grant of jurisdiction may seem unnecessarily broad. A major source, however, 

depending on the pollutants it emits and where it is located, may be subject to both nonattainment NSR and 

PSD. The approach in subsection (1) is therefore necessary to prevent a major source from potentially 

being subject to the permit jurisdiction of two different agencies. 
NSR SIP Revision: Supplemental Information 6 May 2014

incorporated into the SIP. It would be extremely burdensome if ADEQ had to obtain EPA 

approval of a SIP revision every time it delegated or asserted jurisdiction. Instead, EPA’s 

approval of the statutory authority and processes for delegating and asserting jurisdiction 

should be sufficient to satisfy the SIP requirements cited in section 2 above.

2.2(c) Minor Sources

Subsection B of A.R.S. § 49-402 provides that except as specified in subsection A, 

counties or multi-county air quality control regions shall have jurisdiction over “the 

review, issuance, administration and enforcement of permits issued pursuant to the state 

air quality laws.” It also provides that a county “shall relinquish jurisdiction, control and 

enforcement over such permits as the director designates and at such times as the director 

asserts jurisdiction.” This arrangement—state agency jurisdiction over specified source 

categories and county jurisdiction over the remaining sources, subject to the state 

agency’s authority to assert jurisdiction over additional sources—has been in place since 

Arizona submitted its first SIP in 1972.5

From 1973 to 1988 the Arizona Department of Health Services (ADEQ’s predecessor) 

and then ADEQ issued orders or letters asserting air quality jurisdiction over all 

stationary sources in nine counties that had failed to adopt air pollution control programs 

or had abandoned existing programs.

6

There is no record, however, of any such assertion 

for three counties—Graham, Greenlee and La Paz—that never had programs. Thus, the

practice of formally asserting jurisdiction in counties without programs may not have 

been uniform. A copy of these assertions of jurisdiction is attached for informational 

purposes as Appendix C. As noted below, they are not necessary to establish ADEQ 

jurisdiction and need not be included in the SIP. 

In 1992, the legislature amended section 49-402(B) to provide that before asserting 

jurisdiction over air quality permits in a county, ADEQ must give prior notice and an 

opportunity to confer to the “control officer.” 1992 Ariz. Sess. Laws Ch. 299, § 8. 

Section 49-471(6) defines “control officer” to mean “the executive head of the 

department authorized or designated to enforce air pollution regulations, or the executive 

head of an air pollution control district established pursuant to section 49-473.” In a 

county with no air pollution control program whatsoever, no such person exists, and it is 

impossible for ADEQ to provide this notice. ADEQ therefore interprets the current 

version of section 49-402(B) to require an assertion of jurisdiction only where there is a 

county agency that could otherwise exercise that jurisdiction. Where there is no such 

agency, ADEQ automatically has jurisdiction. ADEQ believes this interpretation is 

consistent with the legislature’s intent, evident in A.R.S. §§ 49-402(A)(1) and (8), that 

ADEQ step in to operate an air quality program in any county that lacks the authority 

necessary to carry out that program.

In accordance with this interpretation, ADEQ has issued air quality permits to eight

minor, non-Title V sources in the three counties for which there is no record of a state

 

5

See The State of Arizona Air Pollution Control Implementation Plan at C-3 (May 1972) (former A.R.S. § 

36-1706, predecessor to A.R.S. § 49-402).

6 The letters or orders asserting jurisdiction were included in previous SIP submissions.
NSR SIP Revision: Supplemental Information 7 May 2014

assertion of jurisdiction: Graham, Greenlee and La Paz. There has never been a challenge 

to ADEQ’s authority to issue these permits.

ADEQ therefore has jurisdiction to issue both minor and major NSR permits in Apache, 

Cochise, Coconino, Gila, Graham, Greenlee, La Paz, Mohave, Navajo, Santa Cruz, 

Yavapai and Yuma counties.

As noted below, the responsible county agencies, rather than ADEQ, have jurisdiction 

over minor NSR in Maricopa, Pima and Pinal Counties.

2.3 Maricopa and Pima County Jurisdiction

As noted above, Maricopa and Pima Counties have approved nonattainment NSR 

programs and delegation by EPA to administer the federal PSD program. The Maricopa 

County Air Quality Department (MCAQD) and Pima County Department of 

Environmental Quality (PDEQ) therefore retain jurisdiction over major sources within 

their respective counties.

Under A.R.S. § 49-402(B), MCAQD and PDEQ also have jurisdiction over any sources 

not subject to ADEQ’s original jurisdiction, except where ADEQ has asserted 

jurisdiction. The county agencies therefore have jurisdiction to issue minor NSR permits.

ADEQ notes that pursuant to these authorities, ADEQ has delegated authority to PDEQ 

to administer the NSR program with respect to the Sundt Generating Station, a coal-fired 

electric generating station subject to ADEQ’s original jurisdiction under A.R.S. § 49-

402(A)(4). In addition, ADEQ has asserted jurisdiction over the Rosemont Copper Mine, 

a minor source in Pima County, under A.R.S. § 49-402(B). A copy of the delegation 

agreement with PDEQ and the assertion of jurisdiction are attached for informational

purposes as Appendix D.

2.4 Pinal County Jurisdiction

As noted above, ADEQ has original jurisdiction over major sources in Pinal County but 

has delegated that jurisdiction to the Pinal County Air Quality Control District

(PCAQCD). 

Under the delegation agreement between ADEQ and PCAQCD, the county is obligated 

to enforce state major NSR rules, but must also enforce its own rules to the extent they

are more stringent. The County therefore retains the authority to enforce the local PSD 

program approved by EPA. 

The ADEQ major NSR rules included in the 2012 SIP revision were revised in 2012 in 

order to bring them into compliance with all current federal NSR requirements. 

PCAQCD is obligated to enforce these requirements under its delegation agreement. The 

2012 SIP Revision therefore provides for the enforcement in Pinal County of current 

federal requirements, including, for example, the PM2.5 increments.

Once Pinal County secures EPA approval of both its PSD and nonattainment NSR 

programs, the County will automatically reassume original jurisdiction over major 

sources within its boundaries.
NSR SIP Revision: Supplemental Information 8 May 2014

2.5 Summary

The following table summarizes the division of jurisdiction described above:

Area Source Categories ADEQ

Jurisdiction

County

Jurisdiction

Maricopa County Smelting of metal ores

Coal fired electrical generating 

stations

Petroleum refineries

Portland cement plants

Portable sources

Original None

All other major and minor 

sources

None Original

Pima County Smelting of metal ores

Coal fired electrical generating 

stations (except Sundt)

Petroleum refineries

Portland cement plants

Portable sources

Original None

Sundt Generating Station Original Delegated

Rosemont Copper Mine Asserted None

All other major and minor 

sources

None Original

Pinal County Smelting of metal ores

Coal fired electrical generating 

stations

Petroleum refineries

Portland cement plants

Portable sources

Original None

Major sources Original Delegated

All other minor sources None Original
NSR SIP Revision: Supplemental Information 9 May 2014

Area Source Categories ADEQ

Jurisdiction

County

Jurisdiction

Rest of State All Original None

3 SIP Provisions Being Replaced

The following table updates the first row of Table 2-1 of the 2012 SIP Revision to 

identify additional provisions relating to jurisdiction that are included in the current SIP 

and being replaced by the current version of A.R.S. § 49-402. It also includes a new row 

to update the state laws relating to delegation of authority included in the SIP. (Items not 

previously included in Table 2-1 are in bold face.)

Rule or Statute Added SIP Rule(s) Replaced Amended by 

NFRM

A.R.S. § 49-402. State and county

control

A.R.S. § 36-1706. State and 

county control

7-1-8.1 (R9-3-801) Original State 

Jurisdiction

7-1-8.2 (R9-3-802) Assertions of 

Jurisdiction

R9-3-1101. Jurisdiction

No

A.R.S. § 49-107. Local delegation 

of state authority

7-1-8.3 (R9-3-803) Delegation of 

authority

No