48326 Federal Register / Vol. 78, No. 153 / Thursday, August 8, 2013 / Rules and Regulations 

1 78 FR 8083. 

2As explained in our proposal, this disapproval 

is ‘‘partial’’ rather than ‘‘full’’ because EPA 

previously approved certain burning and smoke 

management rules that were part of the 2008 SIP 

submittal. 

3Letter from Stephen A. Owens, ADEQ, to Wayne 

Nastri, EPA, December 24, 2008 (‘‘re-submittal 

letter’’). 

4 Id. at 1. 

Maintenance Area submitted by the 

Secretary of the Pennsylvania 

Department of Environmental 

Protection: 

Applicable geographic area Year Tons per day 

NOX

Tons per day 

VOCs 

Lancaster 1997 8-Hour Ozone Maintenance Area ..................................................................... 2009 20.57 35.18 

Lancaster 1997 8-Hour Ozone Maintenance Area ..................................................................... 2018 10.14 14.29 

[FR Doc. 2013–18878 Filed 8–7–13; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2012–0913; FRL–9843–7] 

Partial Disapproval of State 

Implementation Plan; Arizona; 

Regional Haze Requirements 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is finalizing a partial 

disapproval of the Arizona State 

Implementation Plan (SIP) to implement 

the regional haze program for the first 

planning period through 2018. Regional 

haze is caused by emissions of air 

pollutants from numerous sources 

located over a broad geographic area. 

The Clean Air Act (‘‘CAA’’ or the ‘‘Act’’) 

and EPA’s regulations require states to 

adopt and submit to EPA SIPs that 

assure reasonable progress toward the 

national goal of achieving natural 

visibility conditions in 156 national 

parks and wilderness areas designated 

as Class I areas. 

DATES: Effective Date: This rule is 

effective on September 9, 2013. 

ADDRESSES: EPA has established docket 

number EPA–R09–OAR–2012–0913 for 

this action. Generally, documents in the 

docket for this action are available 

electronically at www.regulations.gov 

and in hard copy at EPA Region IX, 75 

Hawthorne Street, San Francisco, 

California. While all documents in the 

docket are listed at 

www.regulations.gov, some information 

may be publicly available only at the 

hard copy location (e.g., copyrighted 

material, large maps), and some may not 

be publicly available in either location 

(e.g., confidential business information). 

To inspect the hard copy materials, 

please schedule an appointment during 

normal business hours with the contact 

listed directly below. 

FOR FURTHER INFORMATION CONTACT: 

Thomas Webb, U.S. EPA, Region 9, 

Planning Office, Air Division, Air–2, 75 

Hawthorne Street, San Francisco, CA 

94105. Thomas Webb can be reached at 

telephone number (415) 947–4139 and 

via electronic mail at 

webb.thomas@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we,’’ ‘‘us’’ 

and ‘‘our’’ refer to EPA. 

Table of Contents 

I. Overview of Proposed Action 

II. Public Comments and EPA Responses 

III. Summary of Final Action 

IV. Statutory and Executive Order Reviews 

I. Overview of Proposed Action 

We proposed on February 5, 2013, to 

disapprove Arizona’s SIP to implement 

the regional haze program under 40 CFR 

51.309.1 Specifically, we proposed to 

disapprove in part a December 24, 2008, 

submittal by the Arizona Department of 

Environmental Quality (ADEQ) in 

which the State resubmitted materials 

previously submitted on December 23, 

2003, and December 30, 2004 

(collectively ‘‘Arizona’s 309 Regional 

Haze SIP’’).2 These SIP submittals were 

intended to address the regional haze 

requirements of the CAA and EPA’s 

implementing regulations at 40 CFR 

51.309 for four of Arizona’s mandatory 

Class I areas. Our proposed rule 

includes additional information about 

these requirements and Arizona’s SIP 

submittals. 

II. Public Comments and EPA 

Responses 

During the 30-day comment period on 

our proposal, we received comments 

from: 

• Eric Massey, Director Air Quality, 

ADEQ; and 

• David Nimkin, Gloria Smith, 

Barbara Warren, Donna House and Dan 

Randolph, on behalf of National Parks 

Conservation Association, Sierra Club, 

Physicians for Social Responsibility 

(Arizona Chapter), Dine’ Citizens 

Against Ruining Our Environment, and 

San Juan Citizens Alliance (collectively, 

the ‘‘Conservation Organizations’’). 

We carefully considered these 

comments, which are located in the 

docket for this action. In the following 

sections, we provide summaries of and 

our responses to these comments. 

Comment 1: ADEQ commented that 

its December 24, 2008, ‘‘re-submittal’’ 

letter was not a revision to Arizona’s 

309 Regional Haze SIP because it did 

not include new information and was 

not subject to a formal public comment 

period. ADEQ further asserted that its 

2003 and 2004 SIP submittals were 

deemed complete by operation of law 

six months after submission, pursuant 

to CAA section 110(k)(1)(B), and that 

EPA should have acted on these 

submittals within 18 months pursuant 

to CAA section 110(k)(2). 

Response 1: As an initial matter, 

ADEQ’s comment appears to have no 

relevance to the substance of EPA’s 

proposed action. Regardless of whether 

ADEQ’s December 24, 2008, resubmittal letter was a SIP revision or 

merely a request that EPA act upon 

ADEQ’s 2003 and 2004 SIP submittals, 

the fact remains that Arizona’s 309 

Regional Haze SIP does not satisfy the 

requirements of 40 CFR 51.309(d)(4) and 

is therefore not approvable. We also 

note that ADEQ’s comment appears to 

contradict the statements made in the 

December 24, 2008, re-submittal letter 

itself.3 The re-submittal letter states 

that: 

Plan submittal is consistent with the 

provisions of Arizona Revised Statutes (ARS) 

Title 49, §§ 49– 104, 49– 06, 49–404,49–406, 

49–414, and 49–414.0 1 and the Code of 

Federal Regulations (CFR) Title 40, 

§§ 51.102–51.104. The plan also complies 

with the public process requirements in 

Section 110(a)(l) and (a)(2) of the Clean Air 

Act; 40 CFR 51.102 regarding preparation, 

notice, and submission of state 

implementation plans; and Arizona Revised 

Statutes 49–425 regarding notice and [public] 

review of rules.4

Consistent with these statements 

regarding public process, EPA viewed 

the re-submittal letter as a SIP revision. 

However, if Arizona did not intend for 

the letter to be a SIP revision, then we 

construe it as a withdrawal of those 

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Federal Register / Vol. 78, No. 153 / Thursday, August 8, 2013 / Rules and Regulations 48327 

5 Id. at 2. 

6 42 U.S.C. 7410(k)(1)(A). 

7 40 CFR part 51, Appendix V. 

8Re-submittal letter at 2. 

9 70 FR 44154 (August 1, 2005). 

10 Id. at 44165. 

11 Id. at 44166. 

12 77 FR 72512 (December 5, 2012). 

13 74 FR 2392 (January 15, 2009). 

14 42 U.S.C. 7410(c)(1). 

15 71 FR 60633 (October 13, 2006) codified at 40 

CFR 51.309. 

16Re-submittal letter at 2. 

portions of the State’s 2003 and 2004 

SIP submittals addressing the stationary 

source requirements of 40 CFR 

51.309(d)(4), as well as an 

acknowledgment of the State’s failure to 

submit provisions to address eight of the 

State’s Class I areas under 40 CFR 

51.309(g). As the letter explains: 

This plan submittal does not include 

provisions under § 309(d)(4) or § 309(g). Due 

to the new requirements for stationary source 

control strategies based on the decision 

rendered in Center for Energy and Economic 

Development (CEED) v. EPA, 398 F.3d 653 

(DC Cir. 2005), Arizona has not been able to 

complete revisions to § 309(d)(4) or complete 

§ 309(g) by the deadline of December 17, 

2007.5

Thus, the re-submittal letter clearly 

acknowledged that Arizona’s 309 

Regional Haze SIP lacked any 

provisions to address the critical 

requirements of 40 CFR 51.309(d)(4) and 

51.309(g). 

The absence of these provisions 

cannot be remedied by the fact that 

Arizona’s 2003 and 2004 SIP submittals 

were deemed ‘‘complete’’ by operation 

of law. Section 110(k)(1)(A) of the CAA 

requires EPA to ‘‘promulgate minimum 

criteria that any plan submission must 

meet before the Administrator is 

required to act on such submission 

under this subsection.’’ 6 Pursuant to 

this requirement, EPA has promulgated 

‘‘completeness criteria,’’ consisting of 

administrative materials and technical 

support elements that must be included 

with all SIP submittals.7 These criteria 

do not include the substantive 

provisions that a given SIP must include 

to comply with the minimum 

requirements of the CAA. Rather, such 

substantive requirements are set out in 

the CAA itself and in EPA’s 

implementing regulations. Thus, the fact 

that the 2003 and 2004 SIP submittals 

were deemed ‘‘complete’’ with respect 

to the minimum criteria required under 

CAA section 110(k)(1)(A) does not mean 

that the submittals were complete in the 

sense that they contained the provisions 

necessary to satisfy the requirements of 

40 CFR 51.309. On the contrary, ADEQ 

acknowledged in its re-submittal letter 

that Arizona’s 309 Regional Haze SIP 

‘‘does not include provisions under 

§ 309(d)(4) or § 309(g).’’ 8

Finally, ADEQ’s assertion that EPA 

should have acted on the State’s 2003 

and 2004 SIP submittals within 18 

months of December 30, 2004, is not 

persuasive. The D.C. Circuit’s decision 

in Center for Energy & Economic 

Development v. EPA, 398 F.3d 653 (D.C. 

Cir. 2005) (‘‘CEED’’), which invalidated 

40 CFR 51.309’s stationary source 

requirements, was issued on February 

18, 2005. In response to this decision, 

EPA proposed revisions to 40 CFR 

51.309 on August 1, 2005.9 Among other 

things, EPA proposed to allow states to 

submit or resubmit 309 SIPs at a later 

date in order to provide time for States 

to revisit the SO2 milestones and 

backstop emission trading program. EPA 

further explained that: 

With respect to the other strategies 

contained in § 51.309, although these other 

provisions of § 51.309 were not affected by 

the decision in CEED v. EPA and may remain 

effective as a matter of State law in each 

State, the EPA cannot approve 

implementation plans under § 51.309 as 

meeting reasonable progress until the plans 

contain valid provisions for addressing 

stationary sources.10

Thus, EPA clearly indicated that we 

could not approve previously submitted 

309 SIPs until they were resubmitted 

with valid provisions for addressing 

stationary sources. EPA ultimately set a 

deadline of December 17, 2007, for these 

re-submittals.11 Regardless of whether 

ADEQ’s December 24, 2008, resubmittal letter is characterized as a SIP 

revision or merely a prompt for EPA to 

act upon the State’s earlier 2003 and 

2004 SIP submittals, the fact remains 

that Arizona, by its own admission, 

failed to submit provisions addressing 

the requirements of 40 CFR 51.309(d)(4) 

and 51.309(g). Finally, even if it were 

true that EPA should have acted on 

Arizona’s 2003 and 2004 SIP submittals 

within 18 months, it is irrelevant to the 

substance of the action EPA is taking in 

this final rule. EPA is addressing the 

approvability of Arizona’s 309 Regional 

Haze SIP now and partially 

disapproving it because the SIP does not 

satisfy the requirements of 40 CFR 

51.309(d)(4). 

Comment 2: ADEQ commented that 

EPA had no authority to adopt a Federal 

Implementation Plan (FIP) in its 

December 5, 2012, final rule that 

established BART for three power plants 

in Arizona.12 ADEQ argued that EPA’s 

January 15, 2009, finding of failure to 

submit (‘‘Finding’’),13 which provided 

the basis for EPA’s FIP authority, was 

invalid because Arizona submitted 309 

SIPs in 2003 and 2004, both of which 

were deemed complete by operation of 

law. Finally, ADEQ asserted that if EPA 

did have FIP authority, then it would 

extend only to the requirements of 40 

CFR 51.309(d)(4) and 51.309(g), not to 

the requirement for BART. 

Response 2: As an initial matter, this 

comment is not germane in any way to 

the present rulemaking, in which EPA is 

finalizing its partial disapproval of 

Arizona’s 309 Regional Haze SIP for 

failure to comply with the requirements 

of 40 CFR 51.309(d)(4). Rather, ADEQ’s 

comment appears to be a collateral 

challenge to EPA’s Finding and other 

rulemakings EPA has conducted 

involving regional haze and BART 

requirements in Arizona. We note that 

ADEQ’s objection to EPA’s Finding 

comes nearly three years after the 

statutory deadline for challenging that 

action has passed. Under the CAA, any 

party seeking judicial review of EPA’s 

Finding was required to file a petition 

for review within 60 days of publication 

of the Finding in the Federal Register, 

or by no later than March 16, 2009. No 

party, including Arizona, filed such a 

petition. Therefore, ADEQ’s claim that 

EPA’s Finding was invalid and that EPA 

did not have FIP authority to 

promulgate its December 5, 2012, final 

rule is time-barred. 

We also disagree with the substance 

of ADEQ’s comment. As ADEQ noted in 

its comment, EPA’s authority to issue a 

FIP arises from one of three triggering 

events: (1) A finding that a state has 

failed to make a required SIP submittal; 

(2) a finding that a SIP submittal does 

not satisfy the minimum criteria of CAA 

section 110(k)(1)(A); or (3) the 

disapproval, in whole or in part, of a SIP 

submittal.14 Contrary to ADEQ’s 

assertion, the fact that Arizona’s 2003 

and 2004 SIP submittals were deemed 

‘‘complete’’ by operation of law has no 

bearing on EPA’s Finding, which was 

premised on the fact that Arizona failed 

to submit SIP provisions to satisfy the 

requirements of 40 CFR 51.309(d)(4) and 

51.309(g). The State’s 2003 and 2004 SIP 

submittals could not have addressed 40 

CFR 51.309(d)(4) and 51.309(g) because 

the former requirement was modified in 

response to the D.C. Circuit’s 2005 

decision in CEED, while the latter 

requirement did not even exist until 

EPA finalized our revisions to 40 CFR 

51.309 in 2006.15 ADEQ acknowledged 

this fact in its December 24, 2008, resubmittal letter, which plainly stated 

that Arizona’s 309 Regional Haze SIP 

addresses neither 40 CFR 51.309(d)(4) 

nor 51.309(g).16

Additionally, we disagree with 

ADEQ’s contention that EPA’s FIP 

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48328 Federal Register / Vol. 78, No. 153 / Thursday, August 8, 2013 / Rules and Regulations 

17See 40 CFR 51.309(a) (‘‘Any Transport Region 

State electing not to submit an implementation plan 

under this section is subject to the requirements of 

§ 51.308 in the same manner and to the same extent 

as any State not included within the Transport 

Region.’’). See also 64 FR 35754, July 1, 1999 

(explaining that ‘‘the requirements of Section 

51.309 . . . are not severable. States that wish to 

take advantage of the GCVTC’s efforts and EPA’s 

acceptance thereof are obligated to meet all of the 

requirements of section 51.309’’ (emphasis added)). 

18 70 FR 44165 (August 1, 2005). 

19 Id. at 44165, 44166. 

20 71 FR 60633 (October 13, 2006) codified at 40 

CFR 51.309. 

21Re-submittal letter at 2. 

22 74 FR 2393 (January 15, 2009). 

23Letter from Deborah Jordan, EPA, to Stephen 

Owens, ADEQ (January 14, 2009). 

authority is somehow limited to the 

requirements of 40 CFR 51.309(d)(4) and 

51.309(g). Section 309 is an alternative 

route to compliance with the regional 

haze rule that can only be implemented 

at the election of the state. The regional 

haze rule clearly explains that if a state 

chooses to fulfill its regional haze 

obligation under 40 CFR 51.309, but 

fails to submit the SIP provisions 

necessary to satisfy that obligation, then 

the state remains subject to the 

requirements of 40 CFR 51.308.17 Thus, 

when Arizona failed to submit SIP 

provisions addressing the requirements 

of 40 CFR 51.309(d)(4) and 51.309(g) by 

the December 17, 2007, deadline, 

Arizona remained subject to the general 

requirements of 40 CFR 51.308. In other 

words, the regulatory gap left by 

Arizona’s failure to submit a 

comprehensive 309 SIP was a duty to 

submit a 308 SIP. As a result, EPA’s 

Finding triggered a duty on behalf of 

EPA to issue a FIP that satisfied the 

requirements of 40 CFR 51.308, which 

include the requirement to establish 

BART for certain stationary sources. 

Finally, even if EPA’s FIP authority 

were somehow limited to the 

requirements of 40 CFR 51.309(d)(4) and 

51.309(g), those provisions are far more 

expansive than ADEQ suggests. Section 

51.309(d)(4) governs emissions of 

nitrogen oxides (NOX), particulate 

matter (PM), and sulfur dioxide (SO2) 

from stationary sources that cause or 

contribute to visibility impairment in 

the Class I areas on the Colorado 

Plateau. In particular, 40 CFR 

51.309(d)(4)(i) requires the 

establishment of quantitative SO2

emission ‘‘milestones’’ that provide for 

emissions reductions, which ‘‘must be 

shown to provide for greater reasonable 

progress than would be achieved by 

application of BART pursuant to 

§ 51.308(e)(2).’’ In addition, 40 CFR 

51.309(d)(4)(vi) requires 309 SIPs to 

‘‘contain any necessary long term 

strategies and BART requirements for 

stationary source PM and NOX

emissions.’’ Finally, 40 CFR 51.309(g) 

includes the requirements for Arizona’s 

eight other Class I Areas and mandates, 

among other things, the establishment of 

reasonable progress goals and 

implementation of ‘‘any additional 

measures necessary to demonstrate 

reasonable progress,’’ consistent with 

the requirements of 40 CFR 

51.308(d)(1)–(4). In short, the 

requirements of 40 CFR 51.309(d)(4) and 

51.309(g) encompass three critical 

elements of the regional haze program: 

Reasonable progress, long-term 

strategies, and BART (or ‘‘better-thanBART’’ alternatives) for NOX, PM, and 

SO2. Therefore, even if EPA’s FIP 

authority were somehow limited to 

fulfilling the requirements of 40 CFR 

51.309(d)(4) and 51.309(g), that 

authority nevertheless extends to each 

of these critical elements, which include 

BART. 

Comment 3: ADEQ commented that 

EPA’s delay in acting on Arizona’s 309 

Regional Haze SIP and the Agency’s 

promulgation of a FIP in a separate 

rulemaking did not give Arizona an 

adequate chance to revise its SIP to 

address the identified deficiencies. 

Response 3: Arizona has been on 

notice since August 1, 2005, when EPA 

proposed to amend 40 CFR 51.309 in 

response to the D.C. Circuit’s decision 

in CEED, of the deficiencies associated 

with the State’s 2003 and 2004 SIP 

submittals. There, EPA publicly stated 

that ‘‘EPA cannot approve 

implementation plans under section 

51.309 as meeting reasonable progress 

until the plans contain valid provisions 

for addressing stationary sources.’’ 18

We also explained that ‘‘[s]tates opting 

for § 51.309 will be required to resubmit 

SIPs some time after [the invalidated 

portions of the 309 regulations] have 

been rectified . . . .’’ 19 EPA’s October 

2006 final rule amending 40 CFR 51.309 

also made clear that Arizona would 

have to revise and resubmit its 309 SIP 

to address 40 CFR 51.309(d)(4) and 

51.309(g) by December 17, 2007.20

Arizona’s December 24, 2008, resubmittal letter, which stated ‘‘[t]his 

plan submittal does not include 

provisions under § 309(d)(4) or 

§ 309(g),’’ 21 illustrates that Arizona was 

well aware of these requirements and 

the deficiencies in its 309 SIP. 

EPA found on January 15, 2009, that 

Arizona failed to re-submit the required 

provisions, again stating explicitly and 

on public record: 

Arizona, New Mexico, and Wyoming have 

opted to develop SIPs based on the 

recommendations of the Grand Canyon 

Visibility Transport Commission under 40 

CFR 51.309. All three States have failed to 

submit the plan elements required by 40 CFR 

51.309(g), the reasonable progress 

requirements for areas other than the 16 Class 

I areas covered by the Grand Canyon 

Visibility Transport Commission Report. 

Arizona and New Mexico have also failed to 

submit the plan element required by 40 CFR 

51.309(d)(4), the alternate stationary source 

program for control of sulfur dioxide (SO2).22

Around the same time, EPA sent a letter 

to ADEQ notifying the State of the 

implications of its failure to submit the 

required SIP provisions, explaining that: 

Upon the effective date of the Federal 

Register notice, EPA must within two years 

either fully approve Arizona’s regional haze 

SIP or promulgate a Federal implementation 

plan (FIP) as required by CAA section 110(c). 

Please be aware that EPA needs about 12 

months after receipt of a SIP to take final 

action. If we do not have sufficient time to 

review and approve a submitted SIP revision, 

the CAA requires that EPA impose a FIP. In 

order to avoid having EPA issue a FIP, we 

strongly recommend that you submit your 

SIP revision within a year of this finding, or 

sooner if possible.23

Thus, over the last eight years, EPA has 

repeatedly and publicly specified the 

deficiencies in Arizona’s 309 Regional 

Haze SIP and allowed ample time for 

Arizona to address these deficiencies. 

Comment 4: The Conservation 

Organizations expressed their support 

for EPA’s determination that Arizona’s 

309 Regional Haze SIP fails to comply 

with the requirements of the regional 

haze rule. They provided a summary of 

the requirements of 40 CFR 51.309(d)(4) 

and a history of Arizona’s regional haze 

SIP submissions since EPA’s 2006 

revisions to the section 309 

requirements, concluding that ‘‘EPA’s 

final rule should disapprove Arizona’s 

309 SIP for failure to comply with the 

requirements of Section 309(d)(4).’’ 

They further asserted that ‘‘EPA’s final 

rule should find that Arizona declined 

to participate in the alternative Section 

309 [Western Backstop Trading 

Program] and instead has chosen to 

address SO2, NOX, and PM reductions 

through the BART process and longterm strategy requirements found in 

Section 308.’’ 

Response 4: We agree with this 

comment and acknowledge the 

Conservation Organizations’ support for 

this rulemaking. 

III. Summary of Final Action 

For the reasons set out in our 

proposed rule and in this final 

rulemaking, we are finalizing our partial 

disapproval of Arizona’s 309 Regional 

Haze SIP. In particular, we are 

disapproving all portions of Arizona’s 

2003 and 2004 SIP submittals, except 

those portions that have already been 

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Federal Register / Vol. 78, No. 153 / Thursday, August 8, 2013 / Rules and Regulations 48329 

24National Parks Conservation Association v. 

Jackson (D.D.C. Case 1:11–cv–01548). 

25National Parks Conservation Association v. 

EPA (D.C. Cir., USCA Case #12–5211). 

approved and those portions pertaining 

to Reasonably Attributable Visibility 

Impairment (RAVI). 

Under section 179(a) of the CAA, 

EPA’s final disapproval of a submittal 

that addresses a requirement of CAA 

sections 171–193 or a revision that is 

required in response to a finding of 

substantial inadequacy as described in 

CAA section 110(k)(5) starts a sanctions 

clock. Arizona’s 309 Regional Haze SIP 

was not submitted to meet either of 

these requirements. Therefore, today’s 

action will not trigger mandatory 

sanctions under CAA section 179(a). 

In addition, CAA section 110(c)(1) 

requires EPA to promulgate a FIP at any 

time within two years after 

disapproving a SIP in whole or in part, 

unless EPA first approves a SIP 

correcting the deficiencies. As 

explained above, due to our previous 

Finding that Arizona failed to submit a 

complete regional haze SIP, EPA is 

already subject to a FIP duty under 

section 110(c)(1) with respect to the 

regional haze requirements for Arizona. 

Moreover, we are also subject to a set of 

court-ordered deadlines by which we 

must approve a SIP and/or promulgate 

a FIP that collectively meet the regional 

haze requirements for Arizona.24 Thus, 

we do not construe today’s partial 

disapproval of Arizona’s 309 Regional 

Haze SIP as creating any new FIP 

obligation. However, as noted in our 

proposed rulemaking, Arizona is 

appealing the district court’s entry and 

modification of the consent decree that 

set the deadlines for EPA action on 

regional haze plans for Arizona.25 If 

Arizona’s challenge ultimately results in 

any changes to the scope of EPA’s 

existing FIP duty with respect to 

regional haze in Arizona, then today’s 

action will trigger a two-year FIP clock 

for any additional regional haze 

requirements that are not subject to the 

previous FIP clock. 

IV. Statutory and Executive Order 

Reviews 

A. Executive Order 12866, Regulatory 

Planning and Review 

This action is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order (E.O.) 12866 (58 FR 

51735, October 4, 1993) and is therefore 

not subject to review under the E.O. 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. Burden is 

defined at 5 CFR 1320.3(b). 

C. Regulatory Reduction Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to conduct 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements unless the 

agency certifies that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

Small entities include small businesses, 

small not-for-profit enterprises, and 

small governmental jurisdictions. 

This rule will not have a significant 

impact on a substantial number of small 

entities because SIP approvals or SIP 

disapprovals under section 110 of the 

Clean Air Act do not create any new 

requirements but simply approve or 

disapprove requirements that the State 

is already imposing. Therefore, because 

the disapproval of SIP revisions does 

not create any new requirements, I 

certify that this action will not have a 

significant economic impact on a 

substantial number of small entities. 

Moreover, due to the nature of the 

Federal-State relationship under the 

Clean Air Act, preparation of a 

flexibility analysis would constitute 

Federal inquiry into the economic 

reasonableness of State action. The 

Clean Air Act forbids EPA to base its 

actions concerning SIPs on such 

grounds. Union Electric Co., v. U.S. 

EPA, 427 U.S. 246, 255–66 (1976); 42 

U.S.C. 7410(a)(2). 

D. Unfunded Mandates Reform Act 

Under section 202 of the Unfunded 

Mandates Reform Act of 1995 

(‘‘Unfunded Mandates Act’’), signed 

into law on March 22, 1995, EPA must 

prepare a budgetary impact statement to 

accompany any proposed or final rule 

that includes a Federal mandate that 

may result in estimated costs to State, 

local, or tribal governments in the 

aggregate, or to the private sector, of 

$100 million or more. Under section 

205, EPA must select the most costeffective and least burdensome 

alternative that achieves the objectives 

of the rule and is consistent with 

statutory requirements. Section 203 

requires EPA to establish a plan for 

informing and advising any small 

governments that may be significantly 

or uniquely impacted by the rule. 

EPA has determined that this action 

does not include a Federal mandate that 

may result in estimated costs of $100 

million or more to either State, local, or 

tribal governments in the aggregate, or 

to the private sector. This Federal action 

disapproves certain SIP elements and 

imposes no new requirements. 

Accordingly, no additional costs to 

State, local, or tribal governments, or to 

the private sector, result from this 

action. 

E. Executive Order 13132, Federalism 

Executive Order 13132 requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

State and local officials in the 

development of regulatory policies that 

have federalism implications.’’ ‘‘Policies 

that have federalism implications’’ is 

defined in the Executive Order to 

include regulations that 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.’’ Under Executive 

Order 13132, EPA may not issue a 

regulation that has federalism 

implications, that imposes substantial 

direct compliance costs, and that is not 

required by statute, unless the Federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by State and local 

governments, or EPA consults with 

State and local officials early in the 

process of developing the proposed 

regulation. EPA also may not issue a 

regulation that has federalism 

implications and that preempts State 

law unless the Agency consults with 

State and local officials early in the 

process of developing the proposed 

regulation. 

This rule 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, as specified in 

Executive Order 13132, because it 

merely disapproves certain SIP 

revisions implementing and does not 

alter the relationship or the distribution 

of power and responsibilities 

established in the Clean Air Act. Thus, 

the requirements of section 6 of the 

Executive Order do not apply to this 

rule. 

F. Executive Order 13175, Coordination 

With Indian Tribal Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ This rule does not have 

tribal implications, as specified in 

Executive Order 13175. It will not have 

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48330 Federal Register / Vol. 78, No. 153 / Thursday, August 8, 2013 / Rules and Regulations 

substantial direct effects on tribal 

governments, on the relationship 

between the Federal government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal government and Indian tribes. 

Thus, Executive Order 13175 does not 

apply to this rule. 

G. Executive Order 13045, Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets Executive Order 13045 

(62 FR 19885, April 23, 1997) as 

applying only to those regulatory 

actions that concern health or safety 

risks, such that the analysis required 

under section 5–501 of the Executive 

Order has the potential to influence the 

regulation. This rule is not subject to 

Executive Order 13045, because it 

disapproves certain SIP revisions. 

H. Executive Order 13211, Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not subject to Executive 

Order 13211, ‘‘Actions Concerning 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use’’ (66 

FR 28355, May 22, 2001) because it is 

not a significant regulatory action under 

Executive Order 12866. 

I. National Technology Transfer and 

Advancement Act 

Section 12 of the National Technology 

Transfer and Advancement Act 

(NTTAA) of 1995 requires Federal 

agencies to evaluate existing technical 

standards when developing a new 

regulation. To comply with NTTAA, 

EPA must consider and use ‘‘voluntary 

consensus standards’’ (VCS) if available 

and applicable when developing 

programs and policies unless doing so 

would be inconsistent with applicable 

law or otherwise impractical. 

EPA believes that VCS are 

inapplicable to this action. Today’s 

action does not require the public to 

perform activities conducive to the use 

of VCS. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Population 

Executive Order (E.O.) 12898 (59 FR 

7629 (Feb. 16, 1994)) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA lacks the discretionary authority 

to address environmental justice in this 

rulemaking. In reviewing SIP 

submissions, EPA’s role is to approve or 

disapprove state choices, based on the 

criteria of the Clean Air Act. 

Accordingly, this action merely 

disapproves certain SIP revisions under 

section 110 of the Clean Air Act and 

will not in-and-of itself create any new 

requirements. Accordingly, it does not 

provide EPA with the discretionary 

authority to address, as appropriate, 

disproportionate human health or 

environmental effects, using practicable 

and legally permissible methods, under 

Executive Order 12898. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

L. Petitions for Judicial Review 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by October 7, 2013. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this rule for the 

purposes of judicial review nor does it 

extend the time within which a 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 section 

307(b)(2)). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Particulate matter, 

Sulfur oxides, Visibility. 

Dated: July 26, 2013. 

Jared Blumenfeld, 

Regional Administrator, EPA Region IX. 

Part 52, chapter I, title 40 of the Code 

of Federal Regulations is amended as 

follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for Part 52 

continues to read as follows: 

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

Subpart D—Arizona 

■ 2. Section 52.145 is amended by 

adding paragraph (h) to read as follows: 

§ 52.145 Visibility protection. 

* * * * * 

(h) Disapproval. The following 

portions of the Arizona SIP are 

disapproved because they do not meet 

the applicable requirements of Clean Air 

Act sections 169A and 169B and the 

Regional Haze Rule at 40 CFR 51.309: 

(1) Regional Haze State 

Implementation Plan for the State of 

Arizona (‘‘Arizona 309 Regional Haze 

SIP’’) submitted by the Arizona 

Department of Environmental Quality 

on December 23, 2003, with the 

exception of Chapter 5 (Strategy to 

Address Reasonably Attributable 

Visibility Impairment (RAVI)) and 

Appendix A–5 (Attributable 

Impairment). 

(2) The Arizona Regional Haze State 

Implementation Plan Revision 

submitted by the Arizona Department of 

Environmental Quality on December 31, 

2004, with the exception of the 

provisions already approved at 40 CFR 

52.120(c)(131). 

(3) Letter from Stephen A. Owens, 

Director, Arizona Department of 

Environmental Quality, dated December 

24, 2008 re: Submittal of Arizona 

Regional Haze State Implementation 

Plan. 

[FR Doc. 2013–18881 Filed 8–7–13; 8:45 am] 

BILLING CODE 6560–50–P 

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