```

[Federal Register Volume 78, Number 146 (Tuesday, July 30, 2013)]
[Rules and Regulations]
[Pages 46141-46176]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-18022]

[[Page 46141]]

Vol. 78

Tuesday,

No. 146

July 30, 2013

Part IV

Environmental Protection Agency

-----------------------------------------------------------------------

40 CFR Part 52

 Approval and Disapproval of Air Quality State Implementation Plans; 
Arizona; Regional Haze and Interstate Transport Requirements; Rules

Federal Register / Vol. 78 , No. 146 / Tuesday, July 30, 2013 / Rules 
and Regulations

[[Page 46142]]

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2012-0904, FRL-9838-4]

Approval and Disapproval of Air Quality State Implementation 
Plans; Arizona; Regional Haze and Interstate Transport Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is taking final action to approve in part and disapprove 
in part a portion of Arizona's State Implementation Plan (SIP) to 
implement the regional haze program for the first planning period 
through 2018. This final rule completes our evaluation of Arizona's 
Best Available Retrofit Technology (BART) control analyses and 
determinations, Reasonable Progress Goals (RPGs) for the State's 12 
Class I areas, Long-term Strategy (LTS), and other elements of the 
State's regional haze plan as well as the Interstate Transport 
requirements for visibility. Today's action includes our responses to 
comments that we received on our proposed rules published in the 
Federal Register on December 21, 2012, and on May 20, 2013. Regional 
haze is caused by emissions of air pollutants from numerous sources 
located over a broad geographic area. The Clean Air Act (CAA) requires 
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. 
EPA will continue to work with Arizona to develop plan revisions to 
address the provisions of the SIP that we are disapproving today.

DATES: Effective date: This rule is effective August 29, 2013.

ADDRESSES: EPA has established docket number EPA-R09-OAR-2012-0904 for 
this action. Generally, documents in the docket are available 
electronically at http://www.regulations.gov or in hard copy at EPA 
Region 9, 75 Hawthorne Street, San Francisco, California. Please note 
that while many of the documents in the docket are listed at http://www.regulations.gov, some information may not be specifically listed in 
the index to the docket and may be publicly available only at the hard 
copy location (e.g., copyrighted material, large maps, multi-volume 
reports or otherwise voluminous materials), and some may not be 
available at either locations (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: Gregory Nudd, U.S. EPA, Region 9, 
Planning Office, Air Division, Air-2, 75 Hawthorne Street, San 
Francisco, CA 94105. Gregory Nudd can be reached at telephone number 
(415) 947-4107 and via electronic mail at r9azreghaze@epa.gov.

SUPPLEMENTARY INFORMATION: 

Definitions

    (1) The words or initials Act or CAA mean or refer to the Clean 
Air Act, unless the context indicates otherwise.
    (2) The initials ADEQ mean or refer to the Arizona Department of 
Environmental Quality.
    (3) The words Arizona and State mean the State of Arizona.
    (4) The initials BACT mean or refer to Best Available Control 
Technology.
    (5) The initials BART mean or refer to Best Available Retrofit 
Technology.
    (6) The term Class I area refers to a mandatory Class I Federal 
area.
    (7) The initials CD mean or refer to Consent Decree.
    (8) The initials dv mean or refer to deciview, a measure of 
visual range.
    (9) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (10) The initials FGD mean or refer to flue gas desulfurization.
    (11) The initials FIP mean or refer to Federal Implementation 
Plan.
    (12) The initials FLM mean or refer to Federal Land Managers.
    (13) The initials IMPROVE mean or refer to Interagency 
Monitoring of Protected Visual Environments monitoring network.
    (14) The initials lb/MMBtu mean or refer to pounds per one 
million British thermal units.
    (15) The initials LTS mean or refer to Long-term Strategy.
    (16) The initials MACT mean or refer to Maximum Achievable 
Control Technology.
    (17) The initials NAAQS mean or refer to National Ambient Air 
Quality Standards.
    (18) The initials NM mean or refer to National Monument.
    (19) The initials NOX mean or refer to nitrogen 
oxides.
    (20) The initials NP mean or refer to National Park.
    (21) The initials NPS mean or refer to the National Park 
Service.
    (22) The initials NSPS mean or refer to new source performance 
standards.
    (23) The initials PM mean or refer to particulate matter.
    (24) The initials PM2.5 mean or refer to fine particulate matter 
with an aerodynamic diameter of less than 2.5 micrometers.
    (25) The initials PM10 mean or refer to particulate matter with 
an aerodynamic diameter of less than 10 micrometers (coarse 
particulate matter).
    (26) The initials PSD mean or refer to Prevention of Significant 
Deterioration.
    (27) The initials PTE mean or refer to Potential to Emit.
    (28) The initials RH mean or refer to regional haze.
    (29) The initials RHR mean or refer to the Regional Haze Rule, 
originally promulgated in 1999 and codified at 40 CFR 51.301-309.
    (30) The initials RMC mean or refer to Regional Modeling Center.
    (31) The initials RP mean or refer to Reasonable Progress.
    (32) The initials RPG or RPGs mean or refer to Reasonable 
Progress Goal(s).
    (33) The initials SCR mean or refer to Selective Catalytic 
Reduction.
    (34) The initials SIP mean or refer to State Implementation 
Plan.
    (35) The initials SNCR mean or refer to Selective Non-catalytic 
Reduction.
    (36) The initials SO2 mean or refer to sulfur dioxide.
    (37) The initials SRP mean or refer to Salt River Project 
Agricultural Improvement and Power District.
    (38) The initials tpy mean tons per year.
    (39) The initials TSD mean or refer to Technical Support 
Document.
    (40) The initials URP mean or refer to Uniform Rate of Progress.
    (41) The initials VOC mean or refer to volatile organic 
compounds.
    (42) The initials WRAP mean or refer to the Western Regional Air 
Partnership.

Table of Contents

I. Summary of Proposed Actions
    A. Regional Haze
    B. Interstate Transport of Pollutants That Affect Visibility
II. Review of State and EPA Actions on Regional Haze
    A. EPA's Schedule to Act on Arizona's RH SIP
    B. History of State Submittals and EPA Actions
    C. Legal Basis for Our Final Action
III. Overview of Final Action on Regional Haze and Interstate 
Transport
    A. BART Analyses and Determinations
    B. Reasonable Progress Goals
    C. Long-Term Strategy
    D. Interstate Transport
    E. Supporting Elements
IV. EPA's Responses to Comments
    A. Responses to Comments on the Proposal of December 21, 2012
    B. Responses to Comments on the Proposal of May 20, 2013
V. Summary of Final Action
    A. Regional Haze
    B. Interstate Transport
    C. Federal Implementation Plan
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental Health Risks and Safety Risks

[[Page 46143]]

    H. Executive Order 13211: Actions that Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act
    L. Petitions for Judicial Review

I. Summary of Proposed Actions

 A. Regional Haze

    EPA proposed on December 21, 2012, to approve in part and 
disapprove in part the remaining portion of Arizona's Regional Haze 
(RH) SIP submitted to EPA Region 9 on February 28, 2011 (``2011 RH 
SIP''), to meet the requirements of Section 308 of the Regional Haze 
Rule (RHR).\1\ We proposed to take action on Arizona's BART control 
analyses and determinations, RPGs for each of the 12 Class I areas, and 
LTS. We also proposed to take action on the requirements that support 
these major components of the plan, including the identification of 
Class I areas impaired by Arizona's emissions, estimated visibility 
conditions, emission inventories, and the State's monitoring strategy. 
Arizona submitted a revision to its 2011 RH SIP on May 3, 2013 
(``Arizona RH SIP Supplement'' or ``Supplement''), addressing some of 
the elements of its SIP that we had proposed to disapprove in our 
notice of December 21, 2012. We then proposed in a notice published on 
May 20, 2013, to approve in part and disapprove in part elements of the 
supplemental SIP. Today, we are taking final action on those portions 
of the 2011 RH SIP as modified by the Supplement (collectively 
``Arizona RH SIP''), which were addressed in our proposed rules on 
December 21, 2012, and on May 20, 2013. Not included in today's action 
are the three BART sources in Arizona that we addressed in a final rule 
published on December 5, 2012.\2\ The following is a summary of our 
proposed rules published on December 21, 2012, and May 20, 2013.
---------------------------------------------------------------------------

    \1\ 77 FR 75704. Please see the proposal for a summary of the 
requirements of the RHR and the CAA concerning visibility 
protection.
    \2\ See 77 FR 72512.
---------------------------------------------------------------------------

    Supporting Elements: In our notice of December 21, 2012, EPA 
proposed to approve Arizona's identification of Class I areas that may 
experience visibility impairment due to emissions from sources within 
the State; Arizona's estimated visibility conditions for baseline, 2018 
and 2064; Arizona's uniform rate of progress (URP) for each Class I 
area; Arizona's emission inventories for 2002 and 2018; and Arizona's 
identification of the sources of visibility impairment. However, 
because the 2011 RH SIP did not include the most recently available 
emission inventory, we proposed to disapprove the 2011 RH SIP with 
respect to this requirement. In our notice of May 20, 2013, we proposed 
to approve Arizona's emissions inventory for 2008 submitted on May 3, 
2013, as part of the Supplement.
    BART-Eligible: In our notice of December 21, 2012, EPA proposed to 
approve Arizona's determination that specific units at the following 
six sources are eligible for BART: ASARCO Hayden Smelter (Hayden 
Smelter); Freeport-McMoRan Inc. Miami Smelter (Miami Smelter); Chemical 
Lime Nelson Plant (Nelson Lime Plant) Kilns 1 and 2; Arizona Public 
Service West Phoenix Power Plant (West Phoenix Power Plant) Combined 
Cycle Units 1 through 3; CalPortland Rillito Cement Plant (Rillito 
Cement Plant) Kiln 4; and Catalyst Pulp Mill in Snowflake (Catalyst 
Paper) Power Boiler 2.\3\ We proposed to disapprove Arizona's 
determination that Tucson Electric Power Sundt Generating Station 
(Sundt) Unit 4 is not eligible for BART. Finally, we proposed to 
approve the State's determination that no other units in the State are 
BART-eligible. In particular, we proposed to approve the State's 
finding that Cholla Power Plant Unit 1 and Sundt Unit 3 are not BART-
eligible. In our notice of May 20, 2013, we proposed to approve 
revisions to the sets of BART-eligible units at the Hayden and Miami 
Smelters.
---------------------------------------------------------------------------

    \3\ We have already approved ADEQ's determination that Arizona 
Electric Power Cooperative (AEPCO) Apache Generating Station 
(Apache) Units 1-3, Arizona Public Service Cholla Power Plant 
(Cholla) Units 2-4, and Salt River Project Coronado Generating 
Station (Coronado) 1-2 are BART-eligible. See 77 FR 72512.
---------------------------------------------------------------------------

    Not Subject to BART: In our notice of December 21, 2012, EPA 
proposed to approve Arizona's decision to set 0.5 deciview (dv) as the 
threshold for determining whether sources are subject to BART, but 
requested comments on whether this threshold is reasonable. We proposed 
to approve Arizona's determination that two eligible sources are exempt 
from BART based on this threshold. These BART-exempt sources are the 
West Phoenix Power Plant and the Rillito Cement Plant. We proposed to 
disapprove Arizona's determination that Nelson Lime Plant is exempt 
from BART, but sought comments on whether this determination was 
reasonable. In our notice of May 20, 2013, we proposed again to 
disapprove Arizona's new determination that the Miami Smelter is exempt 
from a BART analysis for nitrogen oxides (NOX), and that the 
Hayden Smelter is exempt from a BART analysis for coarse particulate 
matter (PM10). We also proposed to approve the State's 
finding that a BART analysis is not required for Catalyst Paper due to 
the plant's closure.
    BART-Subject: In our notice of December 21, 2012, EPA proposed to 
approve Arizona's determination that two sources are subject to BART. 
These sources are the Hayden and Miami Smelters. In our notice of May 
20, 2013, we proposed to approve revised sets of BART-subject units for 
the Miami and Hayden Smelters.
    BART Determination: In our notice of December 21, 2012, EPA 
proposed to approve Arizona's BART determinations for NOX at 
Hayden Smelter and for PM10 at Miami Smelter. We proposed to 
disapprove Arizona's conclusion that a BART determination is not 
required for PM10 at the Hayden Smelter and for 
NOX at the Miami Smelter. We proposed alternatively to 
approve or disapprove the State's BART determination for sulfur dioxide 
(SO2) at the Hayden and Miami Smelters depending on a more 
detailed BART demonstration from the State. We proposed not to act on 
the State's BART determination for Catalyst Paper because this facility 
is no longer in operation. Further, we proposed to disapprove the 
compliance schedules and requirements for equipment maintenance and 
operation related to BART controls at the Hayden Smelter and the Miami 
Smelter because these were not included in the State's 2011 RH SIP. In 
our notice of May 20, 2013, we proposed to approve Arizona's 
determination that BART for PM10 at the Hayden Smelter is no 
additional controls. We also proposed a clarification in the 
application of the emissions limit to Apache Unit 1, and a correction 
to Table 4 in our December 21, 2012, notice in which the baseline 
values for Saguaro East and Saguaro West were reversed.
    Reasonable Progress Goals: In our notice of December 21, 2012, EPA 
proposed to disapprove Arizona's RPGs for 2018 on the 20 percent least 
impaired (``best'') days and 20 percent most impaired (``worst'') days 
at all of the State's Class I areas. We proposed to find that the State 
has not demonstrated that these goals constitute reasonable progress by 
2018 toward the ultimate goal of natural conditions by 2064. Based on 
our own supplemental analysis, we proposed to approve the State's 
finding that it is not reasonable to require additional controls on 
mobile sources of NOX, SO2 or volatile organic 
compounds (VOCs) or on point sources

[[Page 46144]]

of SO2 during this planning period. However, we proposed to 
disapprove the State's finding that no additional controls are needed 
on coarse mass and fine soil emissions, point sources of 
NOX, and area sources of NOX and SO2. 
In our notice of May 20, 2013, we proposed to approve the State's 
finding that it is not reasonable to require additional controls on 
sources of coarse mass and fine soil during the first planning period. 
However, we proposed to disapprove the State's determination that it is 
not reasonable to require additional controls on point sources of 
NOX or area sources of NOX and SO2. 
Because we were still proposing to disapprove certain aspects of the 
State's RP analysis, we did not revise our proposal to disapprove the 
State's RPGs.
    Long-term Strategy: In our notice of December 21, 2012, EPA 
proposed to approve Arizona's interstate consultation process, the 
technical basis for its apportionment of emission reductions, and the 
identification of all anthropogenic sources of visibility impairment. 
Regarding the seven mandatory factors a state must consider for the 
LTS, we proposed to find that Arizona considered emissions reductions 
due to ongoing air pollution control programs, measures to mitigate the 
impacts of construction activities, source retirement and replacement 
schedules, smoke management techniques, and the anticipated net effect 
on visibility due to projected changes in emissions through 2018. 
However, we proposed to find that the Arizona RH SIP did not include 
all measures needed to achieve the State's apportionment of emission 
reduction obligations with respect to out-of-state Class I areas. We 
also proposed to find that Arizona did not meet the requirements for 
emissions limitations and schedules of compliance to achieve the RPGs 
or the enforceability of emissions limits and control measures. Our 
notice of May 20, 2013, did not propose any further action on the LTS 
since the State did not address these requirements in its supplemental 
SIP.

 B. Interstate Transport of Pollutants That Affect Visibility

    CAA section 110(a)(2)(D)(i)(II) requires that all SIPs contain 
adequate provisions to prohibit emissions that will interfere with 
other states' required measures to protect visibility. In response to 
the promulgation of the revised National Ambient Air Quality Standard 
(NAAQS) for ozone in 1997,\4\ the new NAAQS for fine particulate matter 
(PM2.5) in 1997,\5\ and the revised PM2.5 NAAQS 
in 2006,\6\ states were required to submit SIP revisions to address the 
interstate transport visibility requirement. ADEQ submitted such SIP 
revisions in 2007 for the 1997 ozone and 1997 PM2.5 NAAQS 
(2007 Transport SIP) \7\ and in 2009 for the 2006 PM2.5 
NAAQS (2009 Transport SIP).\8\ Each of these SIP revisions indicated 
that it would be appropriate to assess Arizona's interference with 
other states' measures to protect visibility in conjunction with the 
State's regional haze SIP. Because ADEQ did not specify a particular 
part of the Arizona RH SIP as addressing the interstate transport 
visibility requirement, we interpreted those SIP revisions to mean that 
ADEQ intended the Arizona RH SIP as a whole to address the interstate 
transport visibility requirement for these three NAAQS. Thus, our 
December 21, 2012, proposal presented EPA's evaluation of the Arizona 
RH SIP in addressing these requirements. Based on this evaluation, we 
proposed to disapprove Arizona's 2007 and 2009 Transport SIPs, along 
with the Arizona RH SIP itself, with respect to the interstate 
transport visibility requirement of CAA section 110(a)(2)(D)(i)(II) for 
the 1997 8-hour ozone, 1997 p.m.2.5, and 2006 p.m.2.5 NAAQS.
---------------------------------------------------------------------------

    \4\ 62 FR 38856, July 18, 1997.
    \5\ 62 FR 38652, July 18, 1997.
    \6\ 71 FR 61144, October 17, 2006.
    \7\ ``Revision to the Arizona State Implementation Plan Under 
Clean Air Act Section 110(a)(2)(D)(i)--Regional Transport,'' 
submitted by ADEQ on May 24, 2007. As noted in our proposal of 
December 21, 2012, EPA approved this SIP revision with respect to 
the first three interstate transport requirements of CAA section 
110(a)(2)(D)(i), but deferred action on the interstate transport 
visibility requirement, often referred to as prong 4, until we 
received Arizona's final Regional Haze SIP. 72 FR 41629, July 31, 
2007.
    \8\ ``Arizona State Implementation Plan Revision under Clean Air 
Act Section 110(a)(1) and (2); 2006 PM2.5 NAAQS, 1997 
PM2.5 NAAQS, and 1997 8-hour Ozone NAAQS,'' submitted by 
ADEQ on October 14, 2009, which addressed the requirements of 
section 110(a)(2)(D)(i) with respect to the 2006 PM2.5 
NAAQS in Section 2.4 and Appendix B of the submittal. As noted in 
our proposal of December 21, 2012, EPA finalized action on this SIP 
revision with respect to the first three requirements of section 
110(a)(2)(D)(i), but deferred action on the interstate transport 
visibility requirement until we received Arizona's final Regional 
Haze SIP. 77 FR 66398, November 5, 2012.
---------------------------------------------------------------------------

II. Review of State and EPA Actions on Regional Haze

 A. EPA's Schedule to Act on Arizona's RH SIP

    EPA received a notice of intent to sue in January 2011 stating that 
we had not met the statutory deadline for promulgating Regional Haze 
FIPs and/or approving Regional Haze SIPs for dozens of states, 
including Arizona. This notice was followed by a lawsuit filed by 
several advocacy groups (Plaintiffs) in August 2011.\9\ In order to 
resolve this lawsuit and avoid litigation, EPA entered into a Consent 
Decree with the Plaintiffs, which sets deadlines for action for all of 
the states covered by the lawsuit, including Arizona. This decree was 
entered and later amended by the United States District Court for the 
District of Columbia over the opposition of Arizona.\10\ Under the 
terms of the Consent Decree, as amended, EPA is currently subject to 
three sets of deadlines for taking action on Arizona's RH SIP as listed 
in Table 1.\11\
---------------------------------------------------------------------------

    \9\ National Parks Conservation Association v. Jackson (D.D.C. 
Case 1:11-cv-01548).
    \10\ National Parks Conservation Association v. Jackson (D.D.C. 
Case 1:11-cv-01548), Memorandum Order and Opinion (May 25, 2012), 
Minute Order (July 2, 2012), Minute Order (November 13, 2012) and 
Minute Order (February 15, 2013).
    \11\ Id.

                      Table 1--Consent Decree Deadlines for EPA to Act on Arizona's RH SIP
----------------------------------------------------------------------------------------------------------------
            EPA Actions                         Proposed rule                            Final rule
----------------------------------------------------------------------------------------------------------------
Phase 1--BART determinations for    July 2, 2012 \1\.....................  November 15, 2012 \2\.
 Apache, Cholla and Coronado.
Phase 2--All remaining elements of  December 8, 2012 \3\.................  July 15, 2013.
 the Arizona RH SIP.
Phase 3--FIP for disapproved        September 6, 2013....................  February 6, 2014.
 elements of the Arizona RH SIP
 (if required).
----------------------------------------------------------------------------------------------------------------
\1\ Published in the Federal Register on July 20, 2012, 77 FR 42834.
\2\ Published in the Federal Register on December 5, 2012, 77 FR 72512.
\3\ Published in the Federal Register on December 21, 2012, 77 FR 75704.

[[Page 46145]]

B. History of State Submittals and EPA Actions

    Because four of Arizona's twelve mandatory Class I Federal areas 
are on the Colorado Plateau, the State had the option of submitting a 
Regional Haze SIP under section 309 of the RHR. A SIP that is approved 
by EPA as meeting all of the requirements of section 309 is ``deemed to 
comply with the requirements for reasonable progress with respect to 
the 16 Class I areas [on the Colorado Plateau] for the period from 
approval of the plan through 2018.'' \12\ When these regulations were 
first promulgated, 309 SIPs were due no later than December 31, 2003. 
Accordingly, ADEQ submitted to EPA on December 23, 2003, a 309 SIP for 
Arizona's four Class I Areas on the Colorado Plateau. ADEQ submitted a 
revision to its 309 SIP, consisting of rules on emissions trading and 
smoke management, and a correction to the State's regional haze 
statutes, on December 31, 2004. EPA approved the smoke management rules 
submitted as part of the revisions in 2004,\13\ but did not propose or 
take final action on any other portion of the 309 SIP.
---------------------------------------------------------------------------

    \12\ 40 CFR 51.309(a).
    \13\ 71 FR 28270 and 72 FR 25973.
---------------------------------------------------------------------------

    In response to an adverse court decision,\14\ EPA revised 40 CFR 
51.309 on October 13, 2006, making a number of substantive changes and 
requiring states to submit revised 309 SIPs by December 17, 2007.\15\ 
Subsequently, ADEQ sent a letter to EPA dated December 24, 2008, 
acknowledging that it had not submitted a SIP revision to address the 
requirements of 40 CFR 51.309(d)(4) related to stationary sources and 
40 CFR 51.309(g), which governs reasonable progress requirements for 
Arizona's eight mandatory Class I areas outside of the Colorado 
Plateau.\16\ EPA proposed on February 5, 2013,\17\ to disapprove 
Arizona's 309 SIP except for the smoke management rules that we had 
previously approved.
---------------------------------------------------------------------------

    \14\ Center for Energy and Economic Development v. EPA, 398 F.3d 
653 (D.C. Circuit 2005).
    \15\ 71 FR 60612.
    \16\ Letter from Stephen A. Owens, ADEQ, to Wayne Nastri, EPA 
(December 24, 2008).
    \17\ 78 FR 8083.
---------------------------------------------------------------------------

    EPA made a finding on January 15, 2009, that 37 states, including 
Arizona, had failed to make all or part of the required SIP submissions 
to address regional haze.\18\ Specifically, EPA found that Arizona 
failed to submit the plan elements required by 40 CFR 51.309(d)(4) and 
(g). EPA sent a letter to ADEQ on January 14, 2009, notifying the State 
of this failure to submit a complete SIP. ADEQ later decided to submit 
a SIP under section 308, instead of under section 309.
---------------------------------------------------------------------------

    \18\ 74 FR 2392.
---------------------------------------------------------------------------

    ADEQ adopted and transmitted its 2011 Regional Haze SIP under 
section 308 of the RHR to EPA Region 9 in a letter dated February 28, 
2011. The SIP was determined complete by operation of law on August 28, 
2011.\19\ The SIP was properly noticed by the State and available for 
public comment for 30 days prior to a public hearing held in Phoenix, 
Arizona, on December 2, 2010. Arizona included in its SIP responses to 
written comments from EPA Region 9, the National Park Service, the U.S. 
Forest Service, and other stakeholders including regulated industries 
and environmental organizations. The 2011 RH SIP is available to review 
in the docket for the proposed rule.\20\
---------------------------------------------------------------------------

    \19\ CAA section 110(k)(1)(B).
    \20\ ``Arizona State Implementation Plan, Regional Haze under 
Section 308 Of the Federal Regional Haze Rule,'' February 28, 2011.
---------------------------------------------------------------------------

    As indicated in Table 1, the first phase of EPA's action on the 
2011 RH SIP addressed three BART sources. The final rule for this phase 
(a partial approval and partial disapproval of the State's plan and a 
partial FIP) was signed by the Administrator on November 15, 2012, and 
published in the Federal Register on December 5, 2012. The emission 
limits on the three sources will improve visibility by reducing 
NOX emissions by about 22,700 tons per year. In the second 
phase of our action, we proposed on December 21, 2012, to approve in 
part and disapprove in part the remainder of the 2011 RH SIP. ADEQ 
submitted the Arizona RH SIP Supplement on May 3, 2013, to correct 
certain deficiencies identified in that proposal. We then proposed on 
May 20, 2013, to approve in part and disapprove in part the Supplement. 
Today, we are taking final action on those elements of the Arizona RH 
SIP included in our proposed rules of December 21, 2012, and May 20, 
2013. We intend to address all the disapproved elements of the Arizona 
RH SIP from Phase 2 in a proposed FIP due for signature by September 6, 
2013 (See Table 1).

C. Legal Basis for Our Final Action

    Our action is based on an evaluation of the Arizona RH SIP 
submitted on February 28, 2011, and supplemented on May 3, 2013, to 
meet the requirements of Section 308 of the RHR (collectively ``Arizona 
RH SIP''). We evaluated the Arizona RH SIP for compliance with the 
requirements of the RHR and CAA sections 169A and 169B. We also applied 
the general SIP requirements in CAA section 110 and 40 CFR Part 51. Our 
authority for action on the Arizona RH SIP is based on CAA section 
110(k). Our authority to promulgate a FIP is based on CAA section 
110(c).

III. Overview of Final Action on Regional Haze and Interstate Transport

    This is an overview of today's final action on the rules that were 
proposed on December 21, 2012, and on May 20, 2013. In this section, we 
list the final approvals and disapprovals for each of the three major 
portions of the RHR: BART Analyses and Determinations, RPGs, and LTS. 
This is followed by our final action on the Interstate Transport 
requirement. EPA must address all of the final disapprovals in an 
upcoming proposed FIP, which will be available for review and comment. 
In addition, we are approving all the supporting elements of the 
Arizona RH SIP as proposed. For a general description of our evaluation 
of Arizona's BART and RP analyses, please refer to the section entitled 
``Summary of Final Action.''
    EPA takes very seriously the decision to disapprove in part the 
Arizona RH SIP. However, for the reasons set forth in our proposals and 
elsewhere in this document, we have determined this partial approval 
and partial disapproval is consistent with the requirements of the CAA 
and the RHR, while full approval of the SIP would be inconsistent with 
these requirements. EPA will continue to work with ADEQ to address all 
of the elements of the Arizona RH SIP that we have disapproved.

 A. BART Analyses and Determinations

    Final approval: We are approving Arizona's determination that 
Cholla Unit 1 and Sundt Unit 3 are not BART-eligible. We are approving 
Arizona's BART threshold of 0.5 dv and its determination that West 
Phoenix Power Plant and the Rillito Cement Plant are not subject to 
BART. We are approving the State's conclusion that the Hayden Smelter 
is subject to BART for SO2 and the Miami Smelter is subject 
to BART for SO2 and PM10. We also are approving a 
revised set of emission units that are subject to BART at each smelter. 
We are approving Arizona's determination that BART for PM10 
at the Hayden Smelter is no additional controls and that the NESHAP for 
Primary Copper Smelting constitutes BART for PM emissions at the Miami 
Smelter. Finally, we are approving the State's determination that a 
BART analysis is not required for Catalyst Paper, and approving a

[[Page 46146]]

correction to the applicability of the BART limit for NOX on 
Apache Unit 1.
    Final disapproval: We are disapproving Arizona's determination that 
Sundt Unit 4 is not BART eligible, and that Chemical Lime Nelson is not 
subject to BART. We are disapproving the State's determination that the 
Hayden Smelter is not subject to BART for PM10 and that the 
Hayden and Miami Smelters are not subject to BART for NOX. 
We also are disapproving the State's BART determinations for 
SO2 at the Hayden and Miami Smelters. Based on these final 
disapprovals, EPA is required to conduct BART analyses in an upcoming 
FIP for Sundt Unit 4, Chemical Lime Nelson Kilns 1 and 2, the Hayden 
Smelter (NOX and SO2), and the Miami Smelter 
(NOX and SO2).

 B. Reasonable Progress Goals

    Final approval: We are approving Arizona's calculations of the URP 
to 2064 and the number of years it will take to attain natural 
conditions at the State's Class I areas. Regarding sub-parts of the RP 
analysis, we are approving the State's decision to consider no further 
reductions from mobile sources, to exclude coarse mass and fine soils, 
and to require no additional SO2 controls on non-BART point 
sources.
    Final disapproval: We are disapproving Arizona's RPGs for the 20 
percent worst days and 20 percent best days as well as portions of the 
State's broader RP analysis that provides the basis for the RPGs. In 
particular, we are disapproving specific elements of the State's RP 
analysis for area sources of NOX and SO2 and 
point sources of NOX. We also are disapproving the State's 
demonstration that the rates of progress reflected in its RPGs are 
reasonable.

C. Long-Term Strategy

    Final approval: We are approving most of the mandatory factors that 
a state must consider in the LTS. These factors include interstate 
consultation, the technical basis for the State's apportionment of 
emission reduction obligations, identification of anthropogenic sources 
of visibility impairment, emission reductions from ongoing air 
programs, measures to mitigate construction activities, smoke 
management plans and techniques, anticipated net effect on visibility 
by 2018, and source retirement and replacement schedules.
    Final disapproval: We are disapproving the Arizona RH SIP with 
respect to measures needed to achieve emission reductions, emission 
limits and schedules of compliance, and enforceability of emission 
limits and controls.

D. Interstate Transport

    Final disapproval: EPA is disapproving Arizona's 2007 and 2009 
Transport SIPs and the Arizona RH SIP with respect to the interstate 
transport visibility requirement of CAA section 110(a)(2)(D)(i)(II) for 
the 1997 8-hour ozone, 1997 PM2.5, and 2006 PM2.5 
NAAQS. This follows from our finding that, as a result of the partial 
disapprovals of the RH SIP, the Arizona SIP does not contain adequate 
provisions to prohibit emissions that will interfere with SIP measures 
required of other states to protect visibility.

E. Supporting Elements

    We are approving the following the supporting elements of the 
Arizona RH SIP: Arizona's identification of Class I areas that may 
experience visibility impairment due to emissions from sources within 
the State; Arizona's estimated visibility conditions for baseline, 2018 
and 2064; Arizona's uniform rate of progress for each Class I area; 
Arizona's emission inventories for 2002, 2008 and 2018; and Arizona's 
identification of the sources of visibility impairment.

IV. EPA's Responses to Comments

A. Responses to Comments on the Proposal of December 21, 2012

    The initial deadline for public comments on our December 21, 2012, 
proposal was February 4, 2013. After receiving several requests for an 
extension of the comment period, we extended the due date for public 
comments to March 6, 2013.\21\ We received timely comments from 
representatives of the following entities:
---------------------------------------------------------------------------

    \21\ 78 FR 7702.
---------------------------------------------------------------------------

     ADEQ;
     Apache County Board of Supervisors (Apache County);
     Arizona Mining Association (AMA);
     Arizona Public Service Co (APS);
     American Smelting and Refining Company (ASARCO);
     CalPortland Company (CalPortland);
     Earthjustice (on behalf of National Parks Conservation 
Association, Sierra Club, Physicians for Social Responsibility (Arizona 
Chapter) and San Juan Citizens Alliance);
     Freeport-McMoRan Miami Inc. (FMMI);
     Lhoist North America of Arizona (LNA);
     National Park Service (NPS);
     Phoenix Cement Company (PCC);
     Salt River Project (SRP);
     Mayor, Town of Clarkdale (Clarkdale);
     Tucson Electric Power Company (TEP); and
     Supervisor, Yavapai County District 3 (Yavapai County).
    We also received one late comment from the Competitive Enterprise 
Institute (CEI). All of the comments we received along with attached 
technical reports and analyses are available for review in the docket 
for this action. The following sections contain summaries of the 
comments and our responses to the comments.
1. State and EPA Actions on Regional Haze
a. State and Federal Roles in the Regional Haze Program
    Comment: Several commenters asserted that EPA's proposed 
disapprovals infringe on Arizona's discretion under the CAA and the 
RHR. These commenters noted that the CAA and the RHR provide that the 
states, not EPA, have the primary role in implementing the regional 
haze program, including making BART determinations and that EPA may 
disapprove an RH SIP only where the SIP fails to satisfy the minimum 
requirements of the Act. They generally asserted that there is no basis 
for EPA to determine that the Arizona RH SIP violates any applicable 
requirement of the CAA or RHR. In discussing the roles of EPA and 
states under the CAA, the commenters cited CAA section 110, as well as 
Train v. NRDC; \22\ Union Electric v. EPA; \23\ Montana Sulphur and 
Chemical v. EPA; EME Homer City Generation v. EPA; \24\ Luminant 
Generation Co. v. EPA; \25\ and State of Texas, v. EPA.\26\ With regard 
to the regional haze program specifically, commenters also cited CAA 
section 169A and American Corn Growers Ass'n v. EPA.\27\
---------------------------------------------------------------------------

    \22\ 421 U.S. 60, 79 (1975).
    \23\ 427 U.S. 246 (1976).
    \24\ 696 F.3d 7 (D.C. Cir. 2012).
    \25\ 675 F.3d 917 (5th Cir. 2012).
    \26\ 690 F.3d 670 (5th Cir. 2012).
    \27\ 291 F.3d 1 (D.C. Cir. 2002).
---------------------------------------------------------------------------

    One commenter (ASARCO) asserted that EPA is relegated by the Act to 
a secondary role in the process of determining and enforcing the 
specific, source-by-source emission limitations, and that in developing 
SIPs the state has virtually absolute power in allocating emission 
limitations so long as the national standards are met.
    Another commenter (CalPortland) stated that EPA cannot substitute 
its judgment for Arizona's determination of reasonable progress. 
According to the commenter, the State reasonably determined that 
additional controls

[[Page 46147]]

should not be required during this planning period, and the Arizona RH 
SIP provides significant and sufficient analysis to support its RPGs. 
CalPortland asserted that 40 CFR 51.308(d) limits EPA's role to 
evaluating the sufficiency of Arizona's reasonable progress 
demonstration ``to achieve the progress goal adopted by the State.'' 
Citing Montana Sulphur & Chemical Co. v. EPA, 666 F.3d 1174, 1181 (9th 
Cir. 2012), the commenter contended that the State is free to adopt 
whatever mix of emissions limitations it deems best suited to its 
particular situation. On this basis, the commenter asserted that EPA 
must approve the Arizona RH SIP as adopted by the State.
    Response: We do not agree that our partial disapproval of the 
Arizona RH SIP is contrary to the CAA, the RHR, or relevant case law. 
As noted by several commenters, states have the lead role in developing 
Regional Haze SIPs. However, EPA also has a crucial role in reviewing 
SIPs for compliance with the requirements of the CAA and its 
implementing regulations. Pursuant to CAA section 110, states must 
submit SIPs to EPA for review and EPA must review SIPs for consistency 
with the Act's requirements and may not approve any SIP revision that 
``would interfere with any applicable requirement'' of the Act.\28\ 
Furthermore, the CAA mandates that EPA promulgate a FIP when EPA finds 
that a state has failed to submit a required SIP to the Agency, failed 
to submit a complete SIP, or where EPA disapproves a SIP in whole or in 
part.\29\ Thus, the CAA provides EPA with a critical oversight role in 
ensuring that SIPs meet the Act's requirements.
---------------------------------------------------------------------------

    \28\ CAA section 110(a)(1), (k)(3) and (l), 42 U.S.C. 
7410(a)(1), (k)(3) and (l).
    \29\ See id. 7410(c)(1).
---------------------------------------------------------------------------

    Nothing in the CAA indicates that EPA's role is less important in 
the context of the regional haze program than under other CAA programs. 
On the contrary, CAA section 110(a)(2)(J) explicitly requires that SIPs 
``meet the applicable requirements'' of Part C of Title I of the CAA 
including the requirements for visibility protection set forth in 
sections 169A and 169B.\30\ Pursuant to section 169A(b), EPA is 
required to promulgate visibility protection regulations that apply to 
``each applicable implementation plan'' (i.e., each SIP or FIP) \31\ 
for each state containing one or more Class I areas and each state 
``emissions from which may reasonably be anticipated to cause or 
contribute to any impairment of visibility in any [Class I area].'' 
\32\ The CAA specifies that these regulations (including the RHR) must 
require each such SIP or FIP to ``contain such emission limits, 
schedules of compliance and other measures as may be necessary to make 
reasonable progress toward meeting the national goal,'' including 
implementation of BART, as determined by the state (or by EPA in the 
case of a FIP).\33\ Thus, the statute provides EPA a key oversight role 
in reviewing SIPs for compliance with the RHR and BART requirements.
---------------------------------------------------------------------------

    \30\ CAA sections 110(a)(2)(J), 169A and 169B, 42 U.S.C. 
7410(a)(2)(J), 7491 and 7492.
    \31\ Under the CAA, ``applicable implementation plan'' is 
defined as ``the portion (or portions) of the implementation plan, 
or most recent revision thereof, which has been approved under [CAA 
110], or promulgated under [CAA section 110](c) . . . and which 
implements the relevant requirements of [the CAA].'' CAA section 
302(q), 42 U.S.C. 7602(q). In other words, an ``applicable 
implementation plan'' is an EPA-approved SIP or Tribal 
Implementation Plan, or an EPA-promulgated FIP.
    \32\ 42 U.S.C. 7491(b)(2). In promulgating the RHR, EPA 
determined that ``all States contain sources whose emissions are 
reasonably anticipated to contribute to regional haze in a Class I 
area and, therefore, must submit regional haze SIPs.'' 64 FR 35720; 
see also 40 CFR 51.300(b)(3).
    \33\ 42 U.S.C. 7491(b)(2).
---------------------------------------------------------------------------

    The cases cited by the commenters do not support an argument that 
EPA's role as a reviewer is any less critical in the regional haze 
context than it is in reviewing other SIP components. In American Corn 
Growers v. EPA, the petitioners challenged the original RHR because, 
among other things, the RHR treated one of the five statutory factors 
differently than the others by requiring states to consider the degree 
of visibility improvement from imposing BART on a group of sources 
rather than on a source-specific basis.\34\ The D.C. Circuit concluded 
that such a requirement could force states to apply BART controls at 
sources without evidence that the individual sources contributed to 
visibility impairment at a Class I area, which encroached on states' 
primary authority under the regional haze provisions to determine which 
individual sources are subject to BART and what BART controls are 
appropriate for each source.\35\ Therefore, the court vacated the 
visibility improvement part of the original RHR as contrary to the 
statute.\36\ Contrary to some commenters' suggestions, however, the 
American Corn Growers decision did not address EPA's authority to 
reject a state's BART determinations for failure to conform to the CAA 
and the RHR.
---------------------------------------------------------------------------

    \34\ 291 F.3d 1, 5-9 (D.C. Cir. 2002).
    \35\ Id., pages 7-8.
    \36\ EPA revised the RHR to address the court's decision in 
American Corn Growers at the same time as we promulgated the BART 
Guidelines. 70 FR 39104 (July 6, 2005). The revised RHR and the 
Guidelines were upheld by the D.C. Circuit in Utility Air Regulatory 
Group v. EPA, 471 F.3d 1333 (D.C. Cir. 2006).
---------------------------------------------------------------------------

    Commenters also cite Luminant Generation v. EPA \37\ and Texas v. 
EPA.\38\ Neither of these cases involves BART or the CAA's regional 
haze provisions. Rather, they involved EPA's disapprovals of SIP 
revisions involving Texas's minor new source review (NSR) program. As 
noted by the Luminant court, ``because `the Act includes no specifics 
regarding the structure or functioning of minor NSR programs' and 
because the implementing regulations are `very general [,] . . . SIP-
approved minor NSR programs can vary quite widely from State to State.' 
'' \39\ By contrast, Regional Haze SIPs are subject to detailed 
requirements set forth in CAA sections 169A and the RHR. While in 
Luminant and Texas, the Fifth Circuit found that EPA had failed to tie 
its disapproval to any requirement of the CAA or EPA's implementing 
regulations,\40\ in this case our partial disapproval is based on the 
SIP's failure to comply with CAA sections 110(a)(2) and 169A, as 
implemented through the RHR.\41\
---------------------------------------------------------------------------

    \37\ 675 F.3d 917, 921 (5th Cir. 2012).
    \38\ 690 F.3d 670 (5th Cir. 2012).
    \39\ 675 F.3d at 922 (citing 74 FR 51418, 51421 (Oct. 6, 2009).
    \40\ Id. at 924, 929; 690 F.3d at 679, 682, 686.
    \41\ In particular, as discussed further in our proposals and 
elsewhere in this rule, our partial disapproval is based on the 
following provisions of 40 CFR 51.308: (d)(1)(i)(A), (d)(1)(ii), 
(d)(3)(ii), (d)(3)(v)(C), d)(3)(v)(F), (e)(1)(ii)(A), (e)(1)(ii)(C), 
(e)(1)(iv), and (e)(1)(v).
---------------------------------------------------------------------------

    The other CAA cases cited by commenters, Train v. NRDC, Union 
Electric v. EPA and Montana Sulphur and Chemical v. EPA, all pertain to 
EPA's role in reviewing nonattainment SIPs (i.e., SIPs designed to 
ensure attainment of the NAAQS). Both Train and Union Electric were 
decided prior to Congress's adoption of the visibility protection 
requirements of CAA section 169A and 169B in 1977 and 1990 
respectively, and EPA's adoption of the RHR in 1999. Nonetheless, in 
both cases, the Supreme Court recognized the basic principle that EPA 
must review SIPs for compliance with the requirements of CAA section 
110(a)(2).\42\
---------------------------------------------------------------------------

    \42\ See Train, 421 U.S. 60, 79 (``Under Sec.  110(a)(2), the 
Agency is required to approve a state plan which provides for the 
timely attainment and subsequent maintenance of ambient air 
standards, and which also satisfies that section's other general 
requirements. The Act gives the Agency no authority to question the 
wisdom of a State's choices of emission limitations if they are part 
of a plan which satisfies the standards of section 110(a)(2) . . .'' 
(emphasis added)); Union Electric, 427 U.S. 246, 250 (``Each State 
is given wide discretion in formulating its plan, and the Act 
provides that the Administrator `shall approve' the proposed plan if 
it has been adopted after public notice and hearing and if it meets 
eight specified criteria [in section 110(a)(2)]'' (emphasis added)).

---------------------------------------------------------------------------

[[Page 46148]]

    As part of the 1977 Amendments to the CAA, Congress added to 
section 110(a)(2) requirements that SIPs (1) meet the newly enacted 
visibility protection requirements of Part C of Title I of the Act and 
(2) prohibit stationary source emissions that interfere with other 
states' required visibility protection measures.\43\ As noted above, 
these visibility protection requirements include the obligation for 
SIPs to ``contain such emission limits, schedules of compliance and 
other measures as may be necessary to make reasonable progress'' toward 
elimination of man-made visibility impairment at Class I areas, 
including implementation of BART.\44\ Section 169A further specifies 
five factors that must be considered in determining BART and four 
factors that must be considered in determining reasonable progress.\45\ 
The RHR was promulgated pursuant to these requirements and sets forth 
the specific criteria that all RH SIPs must meet in order to fulfill 
these requirements. Thus, to the extent that Train and Union Electric 
are relevant to RH SIPs, they support the principle that EPA must 
ensure that RH SIPs adequately address the requirements of 110(a)(2), 
including the visibility protection requirements of CAA section 169A, 
as implemented through EPA's visibility protection regulations, 
including the RHR.
---------------------------------------------------------------------------

    \43\ PL 95-95, 91 Stat 685 (HR 6161) section 108(b) (August 7, 
1977) (codified at CAA section 110(a)(2)(J), 42 U.S.C. 
7410(a)(2)(J)). In addition, as part of the 1990 amendments to the 
CAA, Congress added to section 110(a)(2) a requirement that SIPs 
``include enforceable emission limitations and other control 
measures, means, or techniques . . . as well as schedules and 
timetables for compliance, as may be necessary or appropriate to 
meet the applicable requirements of this Act.'' Public Law 101-549, 
104 Stat 2399 sec. 101(b) (November 15 1990) (codified at CAA 
section 110(a)(2)(A), 42 U.S.C. 7410(a)(2)(A)). As explained in our 
notice of proposed rulemaking and elsewhere in this document, the 
Arizona RH SIP does not include such enforceable limitations or 
schedules for compliance.
    \44\ 42 U.S.C. 7491(b)(2).
    \45\ 42 U.S.C. 7491(g)(1) and (2).
---------------------------------------------------------------------------

    The Ninth Circuit's decision in Montana Sulphur, which rejected a 
challenge to EPA's issuance of a SIP call, partial disapproval of a SIP 
and promulgation of a partial FIP for the State of Montana,\46\ also 
reinforces the importance of EPA's oversight role under the CAA. In 
upholding EPA's partial disapproval, the court recognized that EPA's 
role in reviewing of SIPs is not limited to a ministerial review of 
state decisions, but involves the exercise of technical expertise and 
judgment.\47\ Here, as in Montana Sulphur, EPA's partial disapproval 
results from our determination that the SIP failed to meet all of the 
applicable statutory and regulatory criteria. Our findings regarding 
the specific shortcomings of the Arizona RH SIP are set out in detail 
in our proposals and elsewhere in this final rule.
---------------------------------------------------------------------------

    \46\ 666 F.3d 1174 (9th Cir. 2012).
    \47\ Id. at 1189.
---------------------------------------------------------------------------

b. EPA's Schedule to Act on the Arizona RH SIP
    Comment: One commenter (CalPortland) asserted that EPA has not 
given Arizona and affected stakeholders sufficient opportunity to 
address EPA's concerns with the Arizona RH SIP. While acknowledging 
that EPA has tried to address this problem by extending the comment 
deadline and delaying publication of a FIP until after it takes final 
action on the SIP, the commenter asserted that these two actions are 
not legally or practically sufficient to provide due process for 
affected entities such as the commenter.
    According to the commenter, EPA has asserted that it must act now 
given its finding that Arizona failed to submit a complete 309 SIP, but 
EPA has made no such finding with respect to the State's Section 308 
SIP. On this basis, the commenter concluded that unless EPA has the 
authority (which it has not claimed or identified) to adopt a FIP under 
a different regulatory provision than the SIP submitted by the State, 
under CAA section 110(c)(1)(B) EPA's deadline to adopt a Section 308 
FIP will be July 15, 2015. CalPortland concluded that the best approach 
would be to seek further revisions to the third-party consent decree so 
that the State and affected stakeholders have a full and fair 
opportunity to participate in the SIP process, and EPA has the 
necessary time to fully and fairly consider the Arizona RH SIP.
    Response: We do not agree that the State has been given 
insufficient time to address our concerns with the Arizona RH SIP or 
that the timing of our action raises any due process concerns. All RH 
SIPs, whether adopted pursuant to section 308 or section 309 of the 
RHR, were due on December 17, 2007. As explained in section II.B of 
this document, Arizona had submitted a partial SIP under Section 309 in 
2003 and 2004, but never re-submitted the SIP in response to the 2006 
RHR amendments to include provisions to address stationary source 
emissions under 40 CFR 51.309(d)(4) or reasonable progress for eight of 
the State's Class I areas under 40 CFR 51.309(g).\48\ On January 15, 
2009, EPA found that 37 states, including Arizona, had failed to make 
all or part of the required SIP submissions to address regional haze 
and explained that this finding triggered a two-year ``FIP clock.'' 
\49\ Specifically, we found that Arizona had failed to submit a SIP 
addressing 40 CFR 51.309(d)(4) and (g).\50\
---------------------------------------------------------------------------

    \48\ Letter from Stephen A. Owens, ADEQ, to Wayne Nastri, EPA 
(December 24, 2008). We have included a more detailed history of 
Arizona's submissions under 309 in the docket for this action.
    \49\ 74 FR 2392 (``2009 Finding'').
    \50\ Id. at 2393.
---------------------------------------------------------------------------

    At the time of our finding of failure to submit in 2009, EPA 
anticipated that ADEQ would submit a SIP revision covering 309(d)(4) 
and 309(g), which would enable EPA to fully approve ADEQ's 309 SIP as 
meeting all of the requirements of the RHR, thus ending the FIP clock. 
As it turned out, ADEQ did not submit a 309 SIP revision, but instead 
decided to develop a 308 SIP, which it submitted to EPA in February 
2011. Arizona's decision to change from a 309 SIP to a 308 SIP did not 
nullify EPA's prior finding of failure to submit, nor did it reset the 
resulting two-year FIP clock under CAA section 110(c). As noted above, 
December 17, 2007, was the final deadline for states to submit a 
complete RH SIP under 308 or 309. Accordingly, our January 2009 Finding 
covered both 308 SIPs and 309 SIPs. The fact that the 2009 Finding 
reflected Arizona's decision to submit 309 SIP in lieu of a 308 SIP 
does not relieve the State of its obligation to fulfill all of the 
requirements of the RHR (whether under section 308 or section 309) and 
does not relieve EPA of our FIP duty in the event that the State did 
not meet these requirements.
    As explained above, EPA is subject to a consent decree (CD) that 
sets deadlines for us to promulgate a RH FIP and/or approve a RH SIP 
action for all of the states for which we missed the statutory deadline 
under CAA section 110(c). In Arizona's case, we repeatedly sought 
extensions to the CD in order to have sufficient time to adequately 
address all of the requirements of the RHR, though approval of the 
Arizona RH SIP wherever possible and promulgation of a FIP where 
necessary. Had we not agreed to the deadlines currently reflected in 
the CD, we would have had to demonstrate to the court that it would 
have been impossible to comply with the Plaintiff's proposed 
schedule.\51\ Contrary to the commenter's

[[Page 46149]]

assertion, these deadlines are neither inconsistent with the Act nor 
unduly accelerated. As explained above, the FIP clock for addressing 
requirements of the RHR ran out in January 2011. The CD effectively 
provides EPA with an extension of more than three years to meet that 
deadline.
---------------------------------------------------------------------------

    \51\ See Sierra Club v. Johnson, 444 F.Supp.2d 46, 58 (D.D.C. 
2006) (``this case devolves to a single issue: whether defendant has 
met the ``heavy burden'' of demonstrating that it would be 
impossible to comply with plaintiff's proposed schedule for the 
enactment of the remaining standards . . .'').
---------------------------------------------------------------------------

    We also note that, as a practical matter, ADEQ was informed of 
EPA's concerns with the 2011 RH SIP well in advance of our December 21, 
2012, notice of proposed rulemaking. EPA provided comments on December 
2, 2010, to ADEQ regarding the State's proposed version of the 2011 RH 
SIP, noting that the SIP ``does not provide a sufficient level of 
information and analysis to support its conclusions'' and setting out 
specific concerns with ADEQ's BART and RP analyses.\52\ Nonetheless, 
when ADEQ submitted the 2011 RH SIP to EPA, the SIP did not contain 
revisions to address the majority of these comments.
---------------------------------------------------------------------------

    \52\ Letter from Colleen McKaughan, EPA, to Eric Massey, ADEQ 
(December 2, 2010).
---------------------------------------------------------------------------

    With respect to the commenter's concern regarding the burden placed 
on regulated entities, we note that today's action does not establish 
any new requirements for any sources. If any new requirements were to 
apply to CalPortland or any other entity, they would be proposed as 
part of a FIP in a future notice-and-comment rulemaking. Finally, we 
note that ADEQ has submitted a Supplement that addresses a number of 
our proposed disapprovals, and we are approving much of that Supplement 
in today's action. Therefore, we do not agree that the State has had 
insufficient time to correct its SIP or that the timing of our action 
raises any due process concerns.
c. EPA's Final Rule Affecting Three BART Sources
    Comment: One commenter (Apache County) raised issues related to the 
BART determination for the Coronado Generating Station promulgated by 
EPA in the FIP for Phase 1. The commenter noted that ``[t]hroughout the 
coming planning periods, Apache County wishes to be a coordinating 
agency and be fully apprised of all actions, hearings, plans, meetings 
and outcomes as the process moves forward.''
    Response: While we appreciate the commenter's interest in regional 
haze planning, this comment pertains to our rule for Phase 1, which was 
finalized on December 5, 2012, and became effective on January 4, 2013. 
We encourage the commenter to contact ADEQ in order to engage in 
consultation for future planning periods.
d. History of State Submittals and EPA Actions
    Comment: ADEQ objected to EPA's decision to bifurcate its action on 
the Arizona RH SIP into two different phases, one for the application 
of BART to three of Arizona's major power plants and a second action 
for addressing the remaining elements of the SIP. The commenter 
indicated that this approach has created problems for the State, as it 
might be forced to file two appeals with respect to its SIP, and has 
had to address one EPA decision on its SIP without knowing what EPA's 
later decision might require. While acknowledging that CAA section 
110(k)(3) allows EPA to approve a plan revision in part and disapprove 
it in part, ADEQ contended that the language of the section plainly 
requires that action to apply to ``the plan revision,'' not to selected 
pieces of the revision. ASARCO expressed support for ADEQ's position on 
this issue.
    Response: We do not agree that we are required to act on Arizona's 
RH SIP in a single rulemaking action. As noted by the commenters, our 
action on Arizona's SIP is governed by, CAA section 110(k)(3), which 
provides that:

    In the case of any submittal on which the Administrator is 
required to act under section 110(k)(2), the Administrator shall 
approve such submittal as a whole if it meets all of the applicable 
requirements of this chapter. If a portion of the plan revision 
meets all the applicable requirements of this chapter, the 
Administrator may approve the plan revision in part and disapprove 
the plan revision in part. The plan revision shall not be treated as 
meeting the requirements of this chapter until the Administrator 
approves the entire plan revision as complying with the applicable 
requirements of this chapter.\53\
---------------------------------------------------------------------------

    \53\ 42 U.S.C. 7410(k)(3).

We disagree with ADEQ's assertion that this language addresses the 
question of whether EPA may consider different elements of a state's 
plan in separate notice and comment rulemakings. However, even assuming 
that this provision of the Act did limit EPA's ability to act 
sequentially on portions of a SIP submission, the provision of 110(k) 
that requires EPA to act on a submittal ``as a whole'' applies only if 
the submittal meets all of the applicable requirements of the CAA. As 
explained in our proposal and elsewhere in this document, we have 
determined that the State's plan does not meet all of the applicable 
requirements of the CAA. Under these circumstances, we are clearly not 
obligated to act on the plan ``as a whole,'' but are given discretion 
to act on distinct portions of the plan.\54\
---------------------------------------------------------------------------

    \54\ Hall v. EPA, 273 F.3d 1146, 1159 (9th Cir. 2001) (section 
110(k)(3) ``permits EPA to issue `partial approvals,' that is, to 
approve the States' SIP revisions in piecemeal fashion'').
---------------------------------------------------------------------------

    We also do not agree that the bifurcation of our action on the 
Arizona RH SIP has placed an undue burden on the State. As explained 
elsewhere in this document, Arizona's 2011 RH SIP was submitted more 
than three years after the regulatory deadline and more than two years 
after EPA had found that Arizona had failed to submit a complete RH 
SIP. As a result, EPA is legally obligated under CAA section 110(c) to 
promulgate a FIP to address all requirements of the RHR that cannot be 
addressed through SIP approvals. Initially, we were subject to a court-
ordered deadline of November 15, 2012, for addressing all aspects of 
the RHR via SIP approval or FIP promulgation.\55\ We sought, but were 
unable to obtain, a negotiated extension of the deadline to address all 
of these elements. Rather than trying to meet the original deadline of 
November 15, 2012, for all elements of the plan, we agreed to address 
BART for three sources by this deadline,\56\ while receiving an 
extension of the deadline to address the remaining elements. This 
extension provided ADEQ sufficient time to submit the RH SIP 
Supplement, which we are partially approving today. Had we not agreed 
to bifurcated deadlines, a supplemental SIP submittal would almost 
certainly not have been possible.
---------------------------------------------------------------------------

    \55\ See National Parks Conservation Association v. Jackson 
(D.D.C. Case 1:11-cv-01548), Docket  21, Partial Consent 
Decree (March 30, 2012).
    \56\ Although these BART determinations are part of the overall 
RH SIP they are also severable from that plan, since BART 
determinations are made on a source-by-source basis and are not 
dependent upon other elements of the plan.
---------------------------------------------------------------------------

    Comment: Citing CAA section 110(k)(1)(A) and (B), PCC asserted 
that, because EPA did not make a determination that the Arizona RH SIP 
failed to meet the minimum criteria within six months after it was 
submitted, the SIP was deemed by operation of law to meet the minimum 
criteria. The commenter stated that as a result, EPA's proposed 
disapproval of the State's reasonable progress analysis is invalid. PCC 
added that, if EPA had notified Arizona within the required six-month 
timeframe that the 2011 RH SIP was administratively incomplete for 
failing to include four-factor analyses for non-BART sources of 
NOX, the State would have responded with a supplemental 
submittal as envisioned by the Act.
    Response: We agree that Arizona's 2011 RH SIP was deemed 
``complete''

[[Page 46150]]

by operation of law under CAA section 110(k)(1)(B).\57\ However, this 
completeness determination does not remove EPA's legal authority and 
obligation under CAA section 110(k)(3) to review the SIP for compliance 
with the requirements of the CAA and EPA's implementing 
regulations.\58\ The completeness determination simply sets a deadline 
for EPA to complete this review and take action on the SIP under CAA 
section 110(k)(2).\59\
---------------------------------------------------------------------------

    \57\ 42 U.S.C. 7410(k)(1)(B).
    \58\ 42 U.S.C. 7410(k)(3) (``In the case of any submittal on 
which the Administrator is required to act under [110(k)(2)], the 
Administrator shall approve such submittal as a whole if it meets 
all of the applicable requirements of this chapter. If a portion of 
the plan revision meets all the applicable requirements of this 
chapter, the Administrator may approve the plan revision in part and 
disapprove the plan revision in part.'').
    \59\ 42 U.S.C. 7410(k)(2) (``Within 12 months of a determination 
by the Administrator (or a determination deemed by operation of law) 
under [110(k)(1)] that a State has submitted a plan or plan revision 
. . . that meets the minimum criteria established pursuant to 
[110(k)(1)] . . . the Administrator shall act on the submission in 
accordance with [110(k)(3)].''
---------------------------------------------------------------------------

    Contrary to the commenter's suggestion, the completeness criteria 
that the 2011 RH SIP has been deemed to meet by operation of law, are 
administrative and technical in nature and do not include a 
comprehensive list of the substantive provisions required for 
particular types of SIP revisions.\60\ The substantive regulatory 
requirements applicable to Regional Haze SIPs are found at 40 CFR part 
51, subpart P. It is these substantive requirements that we must 
consider in reviewing the SIP for approvability. Among these is the 
requirement that RPGs must be based on an analysis of the compliance, 
time necessary for compliance, energy and non-air quality environmental 
impacts, and the remaining useful life of potentially affected 
sources.\61\ The plan must also include documentation supporting this 
analysis.\62\
---------------------------------------------------------------------------

    \60\ See 40 CFR part 51, appendix V.
    \61\ 40 CFR 51.308(d)(1)(i).
    \62\ 40 CFR 51.308(d).
---------------------------------------------------------------------------

 2. EPA's Evaluation of Visibility Conditions in Arizona's Class I 
Areas
    Comment: CalPortland commented that EPA has been inconsistent and 
selective in its assessment of the State's 2018 emission inventory, 
2018 RPGs and 2064 natural visibility conditions. According to the 
commenter, EPA proposed to find that the State's 2018 inventory is 
adequate, even though EPA mentions that the State's estimates are 
incorrect. The commenter asserted that to the extent that the State's 
emission inventory estimate did not properly account for the recession, 
EPA must determine, or ask Arizona to reassess, estimated emissions for 
2018. CalPortland asserted that this is a significant issue because the 
extent to which the State overestimated 2018 emissions affects the need 
for, and the sufficiency of, any supplemental RP analysis.
    CalPortland also indicated that the extent to which the State 
underestimated natural visibility conditions also affects the results 
of the State's RP analysis. The commenter stated that EPA's review of 
the State's extremely low estimates for natural visibility conditions 
is cursory and insufficient, particularly when compared to its review 
of the State's RP analysis. The commenter asserted that EPA cannot 
disapprove the State's RP analysis without also conducting a thorough 
review of the State's natural visibility conditions estimate.
    Response: EPA disagrees with the commenter's assertion that our 
proposed actions on the State's 2018 emissions inventory, 2018 
visibility projections and estimates of natural visibility conditions 
are inconsistent. These three elements of the Arizona RH SIP are 
subject to distinct requirements under the RHR, and EPA's actions on 
each of these elements are consistent with these requirements.
    With regard to the 2018 emissions inventory, RH SIPs must include 
``[a] statewide inventory of emissions of pollutants that are 
reasonably anticipated to cause or contribute to visibility impairment 
in any mandatory Class I Federal area'' including ``estimates of future 
projected emissions.'' \63\ Thus, the RHR does not require exact 
precision for future emissions inventories, but rather estimates of 
future projected emissions. Arizona's 2018 inventory is sufficiently 
accurate to fulfill this requirement.
---------------------------------------------------------------------------

    \63\ 40 CFR 51.308(d)(4)(v).
---------------------------------------------------------------------------

    The commenter correctly noted that both the 2018 emissions 
inventory and the natural visibility conditions estimate impact the 
determination as to whether the State has met the URP by the end of the 
first planning period. However, the commenter appears to misunderstand 
the role of the URP under the RHR. The RHR requires that a state 
consider four factors when setting RPGs: costs of compliance, time 
necessary for compliance, energy and non-air quality environmental 
impacts, and the remaining useful life of potentially affected 
sources.\64\ This requirement applies to all states with Class I areas, 
regardless of whether or not those areas are projected to meet the URP. 
The rule does require an additional demonstration based on the four 
factors, when the URP is not projected to be met,\65\ but merely 
meeting the URP does not exempt the State from having to perform a 
four-factor analysis.\66\
---------------------------------------------------------------------------

    \64\ 40 CFR 51.308(d)(1)(i)(A).
    \65\ 40 CFR 51.308(d)(1)(ii).
    \66\ See, e.g. 77 FR 14604, 14621(March 12, 2012) (``The RHR and 
EPA's guidance for establishing RPGs do not provide that a State may 
forego an analysis of the four statutory factors if modeling 
demonstrates that it is expected to meet the URP in 2018 for . . . 
its Class I areas.'').
---------------------------------------------------------------------------

    Finally, EPA disagrees with the commenter's assertion that EPA's 
review of the State's natural conditions estimate was cursory and 
insufficient. The RHR provides that ``[n]atural visibility conditions 
must be calculated by estimating the degree of visibility impairment 
existing under natural conditions for the most impaired and least 
impaired days, based on available monitoring information and 
appropriate data analysis techniques.'' \67\ EPA has reviewed the 
State's natural conditions estimate in relation to this requirement. As 
mentioned in Section VI.B of the December 21, 2012, proposed action, 
Arizona used the natural conditions estimates developed by the Western 
Regional Air Partnership (WRAP) for the western states. A description 
of EPA's thorough review of the WRAP methodology may be found in the 
WRAP TSD.\68\
---------------------------------------------------------------------------

    \67\ 40 CFR 51.308(d)(2)(iii).
    \68\ ``Technical Support Document for Technical Products 
prepared by the Western Regional Air Partnership in Support of 
Western Regional Haze Plans,'' Final, February 2011 (WRAP TSD).
---------------------------------------------------------------------------

    Comment: ADEQ noted that EPA proposed to disapprove the emissions 
inventory element of the 2011 RH SIP on the grounds that it does not 
include the most recent inventory available and that it is working on a 
SIP revision to cure this deficiency.
    Response: EPA acknowledges ADEQ's efforts in submitting a SIP 
revision that includes the most recent inventory. That inventory was 
submitted to the Agency on May 3, 2013 as part of the Supplement. Our 
evaluation of the inventory may be found in our May 20, 2013, proposed 
action. We find that the Arizona RH SIP now meets the requirement for 
inclusion of the most recent emission inventory.
 3. EPA's Evaluation of Arizona's BART-Eligibility Determinations
a. Cholla Unit 1
    Comment: One commenter (APS) expressed agreement with EPA's 
proposal to approve ADEQ's determination that the commenter's Cholla 
Unit 1 is not BART-eligible

[[Page 46151]]

because it was placed into commercial operation before August 7, 1962. 
The commenter attached supporting documentation to the comments.
    Response: We agree that Cholla Unit 1 is not BART-eligible.
b. Sundt Unit 4
    Comment: Two commenters (Earthjustice, NPS) supported EPA's 
proposal to disapprove the State's determination that Sundt Unit 4 is 
not BART-eligible, arguing that Sundt Unit 4 is BART-eligible despite a 
1987 coal-conversion reconstruction because it never underwent New 
Source Review/Prevention of Significant Deterioration (NSR/PSD) review 
as part of the reconstruction. Earthjustice and NPS further asserted 
that Sundt Unit 4 causes and contributes to visibility impairment and 
is therefore subject to BART.
    In contrast, TEP and ADEQ argued that Sundt Unit 4 is not BART-
eligible because it was reconstructed in 1987 and the BART Guidelines 
specify that ``any emissions unit for which a reconstruction 
`commenced' after August 7, 1977, is not BART-eligible.'' \69\ Citing 
New Jersey v. EPA,\70\ the commenters asserted that in the context of 
the Act, the word ``any'' has an expansive meaning. TEP and ADEQ 
further stated that the footnote in the preamble to the BART Guidelines 
that EPA cited to support its proposed disapproval simply reflected the 
reality that post-1977 source reconstructions in most cases would have 
gone through NSR/PSD permitting.\71\ They also contended that while it 
is generally true that BART was intended to apply to sources that had 
been grandfathered from NSR/PSD permitting requirements, it does not 
follow that BART applies to all grandfathered sources.
---------------------------------------------------------------------------

    \69\ Citing 40 CFR part 51, appendix Y, section II.A.2.
    \70\ 517 F.3d 574, 582 (D.C. Cir. 2008).
    \71\ The footnote in the preamble to the BART Guidelines is 
located at 70 FR 39111, footnote 9, and stated that ``sources 
reconstructed after 1977, which reconstruction had gone through NSR/
PSD permitting, are not BART-eligible.'' EPA cited this footnote in 
the preamble for the present action at 77 FR 75722.
---------------------------------------------------------------------------

    TEP also noted that, while Appendix Y is not binding on Arizona 
with respect to Sundt Unit 4, EPA encouraged states to follow the BART 
Guidelines. TEP asserted that it is arbitrary and capricious for EPA to 
claim it can ignore the BART Guidelines in reviewing a particular SIP, 
given that the BART Guidelines are the means by which EPA intends to 
ensure that consistency is maintained across the states.
    Response: We do not agree with ADEQ and TEP that we ignored the 
BART Guidelines in finding Sundt Unit 4 to be BART-eligible. On the 
contrary, we carefully considered the BART Guidelines' statement that, 
``any emissions unit for which a reconstruction `commenced' after 
August 7, 1977, is not BART-eligible.'' \72\ We further noted that:
---------------------------------------------------------------------------

    \72\ BART Guidelines Sec.  II.A.2.

    This language in the Guidelines, read in isolation, seems to 
indicate that any reconstruction commenced after August 7, 1977 
exempts a source from BART eligibility. However, the BART Guidelines 
are not binding with respect to TEP Sundt Unit 4 because it is not 
part of a fossil fuel-fired electric generating plant with a total 
generating capacity in excess of 750 MW. The Guidelines still 
provide important guidance, but must be considered in the context of 
the relevant statutory and regulatory provisions, none of which even 
refer to such an exemption for post-1977 reconstructions.\73\
---------------------------------------------------------------------------

    \73\ Memorandum to Docket Regarding TEP Sundt Unit 4--BART 
Eligibility (Nov. 21, 2011) [hereinafter ``Sundt Memorandum] at 4 
(internal citations omitted).

Therefore, we considered the BART Guidelines in conjunction with the 
applicable statutory and regulatory requirements. Based on our review 
---------------------------------------------------------------------------
of these requirements, we found that:

    . . . given that the Guidelines are not mandatory for TEP Sundt, 
and that no binding statutory or regulatory provision provides for 
such a post-1977 reconstruction exemption, it is appropriate to read 
this exemption narrowly. An interpretation of ``BART-eligible'' as 
including reconstructed sources that did not go through NSR/PSD 
permitting is also consistent with Congressional intent and with 
EPA's intent in promulgating the relevant regulations. . . .\74\
---------------------------------------------------------------------------

    \74\ Id. at 5.

We are not persuaded by the commenters' assertions that we should read 
the reconstruction exemption more broadly because the relevant sentence 
in the BART Guidelines uses the word ``any.'' While we agree that the 
word ``any'' generally has an expansive meaning, this expansiveness 
applies with equal force to the regulatory definition of ``existing 
stationary facility'' as ``any of the following stationary sources of 
air pollutants, including any reconstructed source, which was not in 
operation prior to August 7, 1962, and was in existence on August 7, 
1977 . . .'' \75\ The use of the word ``any'' modifying both 
``stationary source'' and ``reconstructed source'' indicates that EPA 
intended to include all such sources within the definition of 
``existing stationary facility'' (and hence the definition of ``BART-
eligible source''). To the extent that the reconstruction exemption 
provided by the BART Guidelines is inconsistent with this definition, 
it is the regulatory definition, not the BART Guidelines, which is 
binding on states and EPA.
---------------------------------------------------------------------------

    \75\ 40 CFR 51.301 (emphasis added). As noted in the Sundt 
Memorandum, the ``reconstruction'' provision of the definition was 
intended ``to ensure that sources reconstructed between 1962 and 
1977 were included in the definition of BART-eligible sources. 
Neither the text nor the preamble to this regulation refers to an 
exemption for sources reconstructed after August 7, 1977.
---------------------------------------------------------------------------

    The BART Guidelines must also be read in the context of 
Congressional intent with regard to the visibility requirements of the 
CAA and EPA's visibility regulations. When EPA promulgated our initial 
visibility regulations in 1980, we explained our view that ``a source 
either is new (i.e., subject to PSD) or existing (subject to BART) and 
that it cannot be neither.'' \76\ Consistent with this interpretation, 
we defined the term `in existence' for purposes of visibility 
protection, ``to assure, as Congress intended, that a major stationary 
source be subject to BART under [CAA section] 169A as an existing 
source, or to PSD as a new source.'' \77\ Similarly, when EPA 
promulgated the BART Guidelines, we noted that ``sources reconstructed 
after 1977, which reconstruction had gone through NSR/PSD permitting, 
are not BART-eligible.'' We read this statement to mean that EPA 
intended for the reconstruction exemption to apply only to sources that 
went through NSR/PSD permitting. Like the Guidelines themselves, this 
preamble language is not binding with respect to TEP Sundt, but it 
still provides important guidance as to how EPA interprets the 
applicable statutory and regulatory provisions. If EPA had intended for 
the reconstruction exemption to apply to all sources reconstructed 
after 1977, there would have been no reason to include the clause 
``which reconstruction had gone through NSR/PSD permitting.''
---------------------------------------------------------------------------

    \76\ Summary of Comments and Responses on the May 22, 1980, 
Proposed Regulations for Visibility Protection for Federal Class I 
Areas, page 225.
    \77\ Id.
---------------------------------------------------------------------------

    Thus, Congress did not intend and EPA does not read the RHR or BART 
as allowing a source to use reconstruction as a way to circumvent both 
BART and PSD review and thereby not address the source's effect on 
visibility in any fashion. Accordingly, while we acknowledge that the 
BART Guidelines provide an exemption from BART-eligibility for sources 
reconstructed after August 7, 1977, we find that this reconstruction 
exemption does not apply to Sundt Unit 4. Therefore, we are finalizing 
our disapproval of ADEQ's

[[Page 46152]]

determination that Sundt Unit 4 is not BART-eligible. Since our action 
today is limited to the Arizona RH SIP, we are not making a 
determination on whether TEP Sundt Unit 4 is subject to BART. We expect 
to address this issue in a partial FIP, which will be the subject of a 
future rulemaking.
    Comment: Two commenters (Earthjustice and NPS) who assert that 
Sundt Unit 4 is subject to BART provided comments on appropriate BART 
controls.
    Response: We have not proposed BART determinations for any 
pollutants for Sundt Unit 4, but proposed disapproval of the State's 
finding that Sundt Unit 4 is not BART-eligible. We acknowledge the 
information provided by the commenters, and will examine it, along with 
similar information provided by other commenters on this issue, as we 
work toward developing and proposing a FIP for those elements of the 
Arizona RH SIP that we do not approve.
c. Hayden Smelter
    Comment: Earthjustice requested that EPA analyze the BART 
eligibility of all the emission units at the Hayden Smelter and support 
its independent analysis with documents demonstrating when the 
smelter's units began operations. The analysis should include all 
available operating records for the relevant time periods and all CAA 
construction and operating permits issued to the smelter. The commenter 
also requested that EPA post all relevant documentation to the docket 
and allow the public to comment on EPA's determination.
    Response: ADEQ relied upon a combination of information contained 
in the current Title V permit, with additional information provided by 
the facility, to make its determination regarding which units 
constitute the BART-eligible source. Based upon our review of the 
information provided by the facility \78\ as well as our review of the 
Title V permit, we consider ADEQ's determination regarding BART-
eligible units to be reasonable.\79\ ADEQ included information revising 
the scope of BART-eligible sources at the Hayden Smelter as part of the 
Arizona RH SIP Supplement submitted on May 3, 2013. We proposed to 
approve this determination in our May 20, 2013 notice of proposed 
rulemaking on the SIP supplement, and are finalizing that proposed 
approval in today's action.
---------------------------------------------------------------------------

    \78\ See Docket Item H-09, which contains the 1948 purchase 
order for Converter No. 2.
    \79\ See ADEQ Title V Permit 10042, Attachment C ``Equipment 
List'', which contains equipment installation dates.
---------------------------------------------------------------------------

d. Miami Smelter
    Comment: FMMI asserted that EPA did not properly identify the BART-
eligible emissions units at the Miami Smelter. According to FMMI, the 
2011 RH SIP identified the converters, the Remelt Vessel and the acid 
plant as potentially BART-eligible, while Table 11 in the proposal 
preamble incorrectly listed ``Converters 1-5, Anode Furnace, Shaft 
Furnace, Fugitives'' as BART-eligible.
    FMMI also stated that, based on an independent review of its 
records, the Remelt CVessel should not be considered BART-eligible 
because it commenced operations before 1962. Although the estimated 
SO2 emissions from the Remelt Vessel are less than two tons 
per year and therefore relatively insignificant, the commenter 
requested that the EPA remove the Remelt Vessel as part of the 
necessary corrections to the emissions units that comprise the Miami 
Smelter BART-eligible source.
    Response: The Arizona RH SIP Supplement submitted on May 3, 2013, 
included this revision to the list of units comprising the BART-
eligible source at the FMMI Miami Smelter. In our May 20, 2013 proposed 
rulemaking on the Supplement, we proposed approval of this element. As 
part of today's action, we are finalizing our proposed approval of the 
revised set of BART-eligible units.
4. EPA's Evaluation of Arizona's Subject-to-BART Analyses and 
Determinations
a. Contribution Threshold
    Comment: Six commenters stated that EPA should approve ADEQ's use 
of the 0.5 dv threshold as proposed. Commenters emphasized the 
discretionary nature of the threshold selection and noted that EPA has 
approved other states' use of a 0.5 dv threshold. Some of the 
commenters also contended that EPA's discussion of the BART-eligible 
sources in proximity to Class I areas makes clear that there is no 
basis for choosing a threshold lower than 0.5 dv because lower 
thresholds would subject at most one or two additional sources to BART.
    LNA also commented that EPA appears to question the reasonableness 
of the threshold because the modeled impacts of the Nelson Lime Plant 
were very close to the threshold. The commenter asserted that this is 
not a legitimate reason to question the reasonableness of this 
threshold or any threshold. The commenter stated that, just as is true 
for dispersion modeling to determine compliance with NAAQS and for 
stack testing to determine compliance with emission limits, a modeled 
impact is either above or below the threshold with no further 
assessment as to the degree to which the value is above or below the 
threshold.
    Response: Arizona set a 0.5 dv as the threshold for determining 
whether a source ``contributes'' to visibility impairment. The BART 
Guidelines state that ``[as] a general matter, any threshold that you 
use for determining whether a source `contributes' to visibility 
impairment should not be higher than 0.5 deciviews.\80\ In setting a 
threshold, states should consider the number of BART-eligible sources 
within the state and the magnitude of each source's impacts.\81\ ADEQ 
did not provide a rationale for choosing 0.5 dv as the threshold for 
determining BART eligibility. In our December 21, 2012 proposal, we 
examined whether there was any evidence that a lower threshold was 
justified.\82\ Based on our analysis of the possible implications of a 
lower threshold, we proposed to approve ADEQ's threshold, but sought 
comment on whether it the threshold was reasonable.
---------------------------------------------------------------------------

    \80\ BART Guidelines, 40 CFR part 51, appendix Y, section 
III.A.1.
    \81\ Id.
    \82\ 77 FR 75722.
---------------------------------------------------------------------------

    In our proposal of December 21, 2012, we noted that the source with 
a modeled impact closest to the 0.5 dv threshold is the Nelson Lime 
Plant. As explained elsewhere in today's notice, we have determined 
that Nelson Lime Plant is subject to BART. Setting the threshold as low 
as 0.3 dv would only subject two additional sources to BART and those 
sources have their maximum impact at different Class I areas.\83\ Based 
on this analysis and the comments received, EPA finds that a subject-
to-BART threshold of 0.5 dv is reasonable. Therefore, we are approving 
this threshold.
---------------------------------------------------------------------------

    \83\ Ibid.
---------------------------------------------------------------------------

    Comment: Earthjustice urged EPA to disapprove the 0.5 dv threshold 
and set a lower threshold for Arizona in the final rule. Earthjustice 
stated that ADEQ's 0.5 dv contribution threshold ignores all cumulative 
visibility impacts, with the consequence that (if approved) a source 
that is just under the contribution threshold--such as the Nelson Lime 
Plant--may have a cumulative visibility impact of over 2 dv or more but 
not be subject to BART. The commenter asserts that EPA has rightfully 
recognized the importance of analyzing cumulative visibility impacts 
when making BART determinations in

[[Page 46153]]

Arizona (citing the proposed and final Phase 1 rule). The commenter 
asserted that EPA would be acting inconsistently with its prior actions 
if it now approves a contribution threshold that isolates the analysis 
to one Class I area, while excluding impacts to other Class I areas. 
The commenter noted that Arizona did not explain why its 0.5 dv 
contribution threshold was reasonable, and concluded on this basis that 
EPA owes no deference to the State's unsupported threshold. In 
addition, Earthjustice noted that the Arizona RH SIP does not come 
close to making reasonable progress toward the 2064 natural visibility 
goal, so significant additional emissions reductions are needed. 
Finally, Earthjustice questioned the modeling ADEQ relied on in 
exempting several BART-eligible sources under the 0.5 dv threshold. 
Consequently, the commenter requested that EPA independently evaluate 
and rerun ADEQ's modeling.
    Response: EPA shares the commenter's concerns about the importance 
of reducing visibility impairment at Arizona's Class I areas and 
ensuring that reasonable progress is being made toward eliminating 
human-caused impairment at these important areas. However, the BART 
requirement is intended to address a particular set of sources that are 
of a certain age and ``which may reasonably be anticipated to cause or 
contribute to any impairment of visibility'' in any mandatory Class I 
area.\84\ A source that is not subject to BART is not necessarily free 
from the requirement to reduce emissions. It must be considered in the 
RP analysis in this and subsequent planning periods.
---------------------------------------------------------------------------

    \84\ CAA section 169A(b)(2)(A), 42 U.S.C. 7491(b)(2)(A).
---------------------------------------------------------------------------

    As explained in the preceding response, EPA has found that 
conditions in Arizona do not justify a threshold lower than 0.5 dv. 
Therefore, we are approving the State's decision to set a threshold of 
0.5 dv when determining if a source is subject to BART. EPA disagrees 
with the commenter's assertion that cumulative impacts must be 
considered when determining if a source is subject to BART. A source 
might have very small impacts across many Class I areas, but not 
``contribute,'' within the meaning of the CAA and RHR, to visibility 
impairment at any one of them. Therefore, EPA does not agree that a 
cumulative analysis is required for purposes of determining whether 
sources are subject to BART.
    By contrast, once a source has been found subject to BART, a 
complete five-factor analysis is required. One of the five factors that 
must be considered is ``the degree of improvement in visibility which 
may reasonably be anticipated to result'' from implementation of 
controls. If modeling indicates that controls will significantly 
benefit multiple Class I areas, those benefits should be considered as 
part of this visibility improvement factor.\85\ However, such an 
evaluation of potential visibility benefits is only required once a 
source has been found to cause or contribute to visibility impairment 
at one or more Class I areas based upon the threshold selected by the 
state or EPA in accordance with the BART Guidelines.
---------------------------------------------------------------------------

    \85\ See e.g., 77 FR 72519.
---------------------------------------------------------------------------

    In response to the commenter's request that we independently 
evaluate and rerun ADEQ's modeling, we note that, for purposes of 
determining whether individual sources were subject-to-BART, ADEQ 
relied upon modeling either performed by the by the WRAP Regional 
Modeling Center (RMC) or performed in accordance with the modeling 
protocol developed by the RMC (``CALMET/CALPUFF Protocol for BART 
Exemption Screening Analysis for Class I Areas in the Western United 
States''). EPA's review of this protocol may be found in the WRAP 
TSD.\86\ The commenter has not raised any specific concerns with this 
protocol or its use for BART-eligible sources in Arizona. Accordingly, 
it is not necessary or appropriate for EPA to rerun all of the modeling 
underlying the Arizona RH SIP. Issues related to the interpretation of 
modeling results for specific sources are addressed further below.
---------------------------------------------------------------------------

    \86\ ``Technical Support Document for Technical Products 
Prepared by the Western Regional Air Partnership in Support of 
Western Regional Haze Plans'', Final, February 2011 (WRAP TSD).
---------------------------------------------------------------------------

b. Nelson Lime Plant
    Comment: Two commenters (Earthjustice and NPS) expressed support 
for EPA's proposal to disapprove the State's determination that the 
Nelson Lime Plant is not subject to BART. Two other commenters (LNA and 
ADEQ) opposed the proposal. The two supportive commenters both argued 
that it was inappropriate for the State to use the three-year average 
impact rather than the PSD-style method of looking at each year 
individually, which would have resulted in a finding of contribution 
(0.624 dv in 2003). Earthjustice also asserted that the State's 
adoption of a contribution threshold for the regional haze program that 
is less stringent than the federal land managers' (FLMs) methodology 
under the PSD program is inappropriate and unreasonable because the 
regional haze program's primary purpose is to protect and improve 
visibility at Class I areas, while visibility impacts at Class I areas 
are just one of a much broader array of air quality issues addressed by 
the PSD program.
    NPS also conducted modeling, using the same emissions inputs as 
were used by the facility in its own modeling, but included condensable 
PM10 emissions and used the best 20 percent of days for 
natural background. NPS's modeling showed an impact on the 98th 
percentile highest day greater than 0.50 dv for both 2002 and 2003. The 
NPS results showed an average 98th percentile impact of 0.684 dv, which 
is well above the 0.5 dv threshold. Based on this analysis, NPS 
asserted that the Nelson Lime Plant is subject to BART.
    In contrast, ADEQ and LNA argued that EPA does not have the 
authority to decide which approach to determining BART applicability is 
the most reasonable. ADEQ contended that EPA can point to no provision 
of the CAA or the applicable rules that is violated by the State's 
determination (1) to use three-year averages or (2) not to round up the 
0.498 dv impact for the facility. LNA similarly stated that the BART 
Guidelines are not binding and that EPA has stated that average and 
merged values are both unbiased estimates of the true 98th percentile 
impacts. Based on these arguments, LNA asserted that the State's 
decision to use the 3-year average of the 98th percentile impacts is 
both reasonable and appropriate.
    LNA and ADEQ also argued that the use of the 3-year average for 
comparison to the 0.5 dv threshold is justified because it is in line 
with other regulatory programs involving compliance thresholds, such as 
determining compliance with many NAAQS on the basis of three-year 
averages. ADEQ added that the FLM guidance on which EPA relies uses 
one-year modeling results as a screening level for further scrutiny of 
the applicant's proposal, not a threshold for action.
    Finally, LNA cited recent additional modeling performed by LNA 
using the same CALMET meteorological inputs used by EPA Region 9 in 
other haze FIP modeling and the revised Interagency Monitoring of 
Protected Visual Environments (IMPROVE) equation, and reported that the 
resulting three-year average 98th percentile impact at the Grand Canyon 
was only 0.424 dv, which is well below the 0.5 dv threshold. This would 
make the rounding issue moot.
    Response: As an initial matter, we wish to emphasize that the 
purpose of the 0.5 dv threshold is to screen out those BART-eligible 
facilities that may not reasonably be anticipated to cause

[[Page 46154]]

or contribute to visibility impairment at any single Class I area. The 
subject-to-BART determination is not a decision to require air 
pollution controls; it is a screening step that states may take to 
determine if further analysis is required.\87\
---------------------------------------------------------------------------

    \87\ Under the BART Guidelines, States are permitted to require 
a five-factor BART analysis for all BART-eligible sources without 
conducting this initial screening. 40 CFR pt. 51, appendix Y, 
section II (``Once you have compiled your list of BART-eligible 
sources, you need to determine whether (1) to make BART 
determinations for all of them or (2) to consider exempting some of 
them from BART because they may not reasonably be anticipated to 
cause or contribute to any visibility impairment in a Class I 
area.'').
---------------------------------------------------------------------------

    EPA acknowledges the supportive comments from Earthjustice. 
However, as explained above, states are not required to consider 
cumulative baseline visibility impacts when determining if a source is 
subject to BART. We agree with the State that the maximum impact on the 
most affected Class I area is the appropriate parameter to use for 
screening out sources that do not cause or contribute to visibility 
impairment.
    EPA also acknowledges the additional modeling work completed by the 
NPS. We agree that it is appropriate to include condensable PM when 
modeling visibility impacts from BART-eligible facilities. The results 
provided by the NPS support EPA's conclusion that it is appropriate to 
conduct a full BART analysis for this facility. We also agree with the 
NPS that the method used by the State (averaging the 98th percentile 
impacts of the three years instead of selecting the highest impact), is 
not how the threshold is typically applied and is less stringent than 
the FLM's preferred approach.
    EPA disagrees with ADEQ's assertion that the modeling for the 
Nelson Lime Plant shows that the source is not causing or contributing 
to visibility impairment. ADEQ set the threshold at 0.5 dv, a decision 
with which EPA agrees for reasons explained in section IV.A.4.a above. 
It's unlikely that the modeling could provide a result that is precise 
to 1/1000th of a deciview. To say that an estimate of 0.498 dv is 
definitively less than 0.5 dv overburdens the modeling results. In 
addition, averaging the 98th percentile impacts across the three years 
is not the standard approach and is less conservative than the FLM-
recommended approach of selecting the highest impact from among the 
annual 98th percentile results.
    It should be noted that EPA is not making a finding that a specific 
control technology or any controls at all are required to satisfy BART 
in this case. We are finding that further analysis is needed, based on 
the fact that the average of the 98th percentile impacts is conceivably 
within the margin of error of the results, and that the highest of the 
three 98th percentile impacts is above the threshold. We are also 
finding that the commenters' arguments in favor of a three-year average 
are not persuasive, especially given the screening nature of the 
subject-to-BART test. EPA's position is that the highest 98th 
percentile impact is more appropriate for this test. EPA disagrees with 
ADEQ's characterization of a subject-to-BART determination being a 
threshold for action. It is screen to determine if further analysis is 
needed. Any regulatory requirements on the source would be the result 
of this full BART analysis. The subject-to-BART determination does not 
automatically result in additional requirements for the source.
    Regarding LNA's additional modeling, it is not clear what emissions 
inputs or natural background conditions were used. EPA cannot evaluate 
results without complete information on the inputs. Also, individual 
year results were not provided, so it only addresses the rounding 
issue, since the single highest year 98th percentile criterion cannot 
be evaluated. Given the omission of condensables in the LNA modeling, 
and the lack of documentation of the model inputs and outputs, EPA does 
not consider LNA's results to be persuasive in showing that the source 
clearly does not contribute to visibility impairment.
    Comment: Three commenters (LNA, Earthjustice, and NPS) responded to 
EPA's request for comments on whether there are cost-effective 
pollution controls for the Nelson Lime Plant. LNA, the owner of the 
plant, stated that the plant uses state-of-the-art baghouse controls to 
control particulate emissions from both kilns at the plant and that 
there are no gaseous emission controls at the plant.
    Earthjustice stated that EPA's partial FIP must include a BART 
determination for Nelson Lime Plant. The commenter indicated that lime 
plants across the nation have successfully employed various pollution 
controls to reduce emissions, including Selective Catalytic Reduction 
(SCR) for NOX, wet scrubbers for SO2, and fabric 
filters for PM. The commenter opined that many of these controls will 
likely be cost-effective at the facility and will result in significant 
emissions reductions and visibility benefits compared to the existing 
controls.
    NPS requested that, upon finding the Nelson Lime Plant is subject 
to BART, EPA should make a complete BART analysis available for public 
review and comment.
    Response: EPA acknowledges the information on air pollution 
controls provided by LNA and Earthjustice. We plan to provide a 
complete BART analysis for review and comment in our upcoming FIP 
proposal.
c. Rillito Cement Plant
    Comment: One commenter (CalPortland) agreed with EPA's proposed 
approval of the determination that the Rillito Cement Plant does not 
contribute to visibility at any Class I area and is therefore not 
subject to BART. The commenter noted that the Arizona RH SIP relied on 
modeling conducted by WRAP's RMC to determine that the average 
visibility impact from Rillito at Saguaro National Park is 0.4 dv 
(citing Table 10 in the proposal).
    Response: As shown in Table 10 of our December 21, 2012, proposal, 
according to the WRAP RMC BART Modeling Results for Arizona, Kiln 4 at 
the Rillito Cement plant has a maximum 98th percentile impact of 0.48 
dv at the Saguaro National Monument. This is below the 0.5 dv threshold 
that ADEQ used to determine which sources are subject to BART. As 
explained in section IV.A.4.a above, we are approving the use of that 
threshold. Therefore, we are finalizing our approval of the State's 
determination that the Rillito plant is not subject to BART.
d. Hayden Smelter
    Comment: ADEQ agreed that it had erred in applying a 250 tpy 
threshold for PM10, and noted that the correct threshold for 
PM10 is 15 tpy under 40 CFR 51.308(e)(1)(ii)(C), but 
asserted that EPA erred in proposing to apply the 15 tpy threshold to 
the aggregate PM10 emissions from all the BART-eligible 
sources at the smelter. Citing the definitions of ``BART-eligible 
source,'' ``existing stationary source,'' ``stationary source,'' 
``building, structure or facility,'' and ``installation'' in 40 CFR 
51.301, the commenter asserted that each identifiable piece of process 
equipment at the Hayden Smelter constitutes a separate BART-eligible 
source and the 15 tpy PM10 threshold applies to each such 
piece of equipment individually. ADEQ also noted that the aggregate 
potential to emit (PTE) for PM10 at the Hayden Smelter is 70 
tpy, and therefore the average PTE for each BART-eligible unit is less 
than 15 tpy. The commenter asserted that at least some of the BART-
eligible units at the plant must be exempt from BART on this basis.

[[Page 46155]]

    Response: We disagree with the commenter's assertion that, at the 
Hayden Smelter, the ``BART-eligible source'' can be defined at the 
equipment level for the purpose of exempting emission units from BART. 
In the Arizona RH SIP Supplement, ADEQ reiterated the position set 
forth in this comment. As part of our notice of proposed rulemaking on 
May 20, 2013, we explained why this position is inconsistent with the 
RHR and proposed to disapprove ADEQ's determination that the Hayden 
Smelter is not subject to BART for PM10.\88\ As part of 
today's action, we are finalizing our proposed disapproval of this 
element from both our proposals dated December 21, 2012, and May 20, 
2013.
---------------------------------------------------------------------------

    \88\ 77 FR 29302.
---------------------------------------------------------------------------

    We also note, however, that despite its determination that the 
Hayden Smelter is not subject to BART for PM10, ADEQ also 
included in its May 3, 2013, Supplement, a PM10 BART 
determination for the Hayden Smelter indicating that no additional 
controls were required as BART. We proposed to approve this 
determination in our May 20, 2013, notice of proposed rulemaking on the 
Supplement, and are finalizing that proposed approval in today's 
action.
    Comment: One commenter (Earthjustice) agreed with EPA's proposed 
disapproval of ADEQ's determination that a BART analysis is not 
required at the Hayden Smelter for PM10. Two other 
commenters (ADEQ and ASARCO) disagreed with the proposed disapproval.
    Earthjustice pointed out that the State incorrectly exempted this 
smelter from BART based on PM10 emissions of less 250 tpy 
when the correct exception threshold for PM10 was 15 tpy 
once the facility had been found to be BART-eligible and subject to 
BART for SO2. In contrast, ADEQ and ASARCO asserted that, 
despite the incorrect application of a 250 tpy threshold, the Hayden 
Smelter is not subject to BART for PM because its projected visibility 
impairment impacts are too low to warrant a BART analysis. ADEQ 
contended that a BART determination is not required for every pollutant 
emitted in amounts exceeding the exemption levels in 40 CFR 
51.308(e)(1)(ii)(C).
    ASARCO added that the CALPUFF model inputs used for the Hayden 
Smelter in the WRAP's visibility analysis were the facility's PTE 
values rather than high utilization emissions rates as required under 
the BART Guidelines. ASARCO therefore recalculated the CALPUFF model 
inputs using what the commenter characterized as the approach set forth 
in the BART Guidelines and provided the results of its revised 
modeling. Based on these results, ASARCO concluded that PM emissions 
from the Hayden Smelter are a de minimis contributor to visibility 
impairment.
    Response: Based on the visibility results provided by ASARCO, we 
agree that the visibility impact of particulate emissions from the 
Hayden Smelter is below 0.50 dv. However, under the RHR, the 
determination of whether a source causes or contributes to visibility 
impairment is not made on a pollutant-by-pollutant basis.\89\ Rather, 
as explained in the BART Guidelines, states must ``look at 
SO2, NOX, and direct PM emissions in determining 
whether sources cause or contribute to visibility impairment . . .'' 
\90\ As indicated in the Arizona RH SIP, when all of these emissions 
are accounted for, the Hayden Smelter has a total visibility impact 
greater than 0.50 dv, and is therefore subject to BART.
---------------------------------------------------------------------------

    \89\ See 40 CFR 51.308(e)(1)(ii) (requiring a BART determination 
``for each BART-eligible source in the State that emits any air 
pollutant which may reasonably be anticipated to cause or contribute 
to any impairment of visibility in any mandatory Class I Federal 
area.'').
    \90\ 40 CFR part 51, appendix Y, section III. A.2, ``What 
Pollutants Do I Need To Consider?'' (emphasis added).
---------------------------------------------------------------------------

    Once a source is determined to be subject to BART, the RHR allows 
for the exemption of a specific pollutant from a BART analysis only if 
the PTE for that pollutant is below a specified de minimis level.\91\ 
Although a small pollutant-specific baseline visibility impact may be 
informative in determining what control option may be BART, a BART 
analysis is still required for any pollutant with a PTE that exceeds 
the de minimis threshold at an otherwise subject-to-BART source. As 
explained in the preceding response, the PTE for PM10 from 
the BART eligible units at the Hayden Smelter exceed the de minimis 
threshold of 15 tpy. Therefore, a BART analysis for PM10 is 
required.
---------------------------------------------------------------------------

    \91\ 40 CFR 51.308(e)(1)(ii)(C). This provision was promulgated 
at the same time as the BART Guidelines. 77 FR 39104, 39156 (July 6, 
2005).
---------------------------------------------------------------------------

    Comment: ASARCO agreed with EPA's evaluation that the Hayden 
Smelter is not subject to BART for NOX. The commenter 
concurred that a BART determination is not needed for NOX 
emissions, which according to the commenter are less than 40 tpy. 
ASARCO also indicated, based on the modeling analysis presented in the 
previous comment, that the Hayden Smelter's visibility impacts from 
NOX emissions are at most 0.01 dv and may be effectively 
zero. The commenter concluded from this that Hayden's NOX 
emissions are not subject to BART because CAA section 169A(g)(2) 
mandates that the reviewing agency consider the degree of improvement 
in visibility that may reasonably be anticipated from the use of BART. 
The commenter also stated that if a BART analysis is undertaken, the 
commenter agrees with the conclusion in the State's RH SIP that no 
NOX controls are available for primary copper smelting 
converter and anode furnace operations; the commenter contended that 
this conclusion is as applicable to BART as it was to reasonable 
progress goal determination.
    Another commenter (Earthjustice) asserted to the contrary that EPA 
should disapprove ADEQ's BART determination and independently determine 
whether the Hayden Smelter is subject to BART for NOX. The 
commenter stated that there is no discussion in the 2011 RH SIP or the 
proposal preamble of why this smelter is not subject to BART for 
NOX, which the commenter finds unjustified and unreasonable. 
According to the commenter, the Hayden Smelter emits 80 tpy of 
NOX based on the same WRAP modeling document relied on by 
EPA as the source for NOX emissions data for the Miami 
Smelter. Because this is well in excess of the 40 tpy exception 
threshold for NOX, the commenter requested that EPA 
independently determine whether the Hayden Smelter is subject to BART 
for NOX and include a NOX BART determination in 
the proposed FIP.
    Response: As part of our proposed rulemaking on December 21, 2012, 
we proposed to approve ADEQ's determination that a BART analysis was 
not required for NOX at the Hayden Smelter. As noted by 
Earthjustice, the total NOX emission rate used by WRAP in 
determining the baseline NOX visibility impact was 2.27 
grams/second (g/s). This modeled emission rate, when converted to tons/
year based on 8,760 hours/year of operation, equals 78.9 tpy.
    Since this estimate is based on continuous operation of the BART 
eligible source at 2.27 g/s, we consider this to be an overly 
conservative estimate of NOX PTE given the batch nature of 
the operations at the Hayden Smelter. However, in our review of the 
Hayden Smelter's current Title V permit and the Arizona RH SIP, we were 
unable to identify any physical or operational limitations that would 
limit the PTE of the BART-eligible source below the NOX de 
minimis threshold of 40 tpy. Although the baseline NOX 
visibility impact is below 0.50 dv, we note that, as explained in the 
response

[[Page 46156]]

to a comment regarding PM10 emissions from the Hayden 
Smelter, once a facility is determined to be subject to BART, the RHR 
allows for the exemption of specific pollutants from a BART analysis 
only if they are below specified de minimis levels.\92\ As a result, we 
are today finalizing disapproval of ADEQ's determination that a BART 
determination is not required for NOX at the Hayden Smelter.
---------------------------------------------------------------------------

    \92\ 40 CFR 51.308(e)(1)(ii)(C). This provision was promulgated 
at the same time as the BART Guidelines. 77 FR 39104, 39156 (July 6, 
2005).
---------------------------------------------------------------------------

e. Miami Smelter
    Comment: ADEQ agreed that it had erred in applying a 250 tpy 
threshold for NOX, and noted that the correct threshold for 
NOX is 40 tpy under 40 CFR 51.308(e)(1)(ii)(C). However, 
ADEQ asserted that each BART-eligible unit at the smelter constitutes a 
separate BART-eligible source under the RHR and that EPA therefore 
erred in proposing to apply the 40 tpy threshold to the aggregate 
NOX emissions from all the BART-eligible units at the 
smelter. ADEQ also noted that the aggregate PTE for NOX at 
the Miami Smelter is 158 tpy, and therefore the average PTE for the 
BART-eligible sources is less than 40 tpy. The commenter asserted that 
at least some of the BART-eligible sources at the plant must be exempt 
from BART on this basis.
    Response: As noted in a previous response to a similar comment 
about the ASARCO Hayden Smelter, we disagree with the commenter's 
assertion that the ``BART-eligible source'' can be defined at the 
equipment-level. When determining if a subject-to-BART source can be 
exempted from a BART analysis for a particular pollutant, the total 
emissions of that pollutant from all units that comprise the BART-
eligible source must be compared to the de minimis threshold.
    ADEQ reiterated in its RH SIP Supplement submitted on May 3, 2013, 
that the Miami Smelter was exempt from a NOX BART 
determination. As discussed in our May 20, 2013, notice of proposed 
rulemaking on the RH SIP Supplement, we proposed disapproval of this 
element. As part of today's action, we are finalizing our proposed 
disapproval of this element from both our December 21, 2012, and May 
20, 2013, proposals.
    Comment: Earthjustice agreed with EPA's proposed disapproval of the 
State's determination that BART is not required for NOX 
emissions from the Miami Smelter. Two FMMI and ADEQ took the opposite 
position, contending that EPA is mistaken if it based its proposed 
disapproval on the position that a BART determination is mandatory for 
any emissions of a visibility-impairing pollutant that exceed the 
exemption threshold. Instead, the commenters asserted that a BART 
determination is required only when the emissions are reasonably 
anticipated to cause or contribute to visibility impairment in a Class 
I area which, at a modeled impact of 0.11 dv, the commenters asserted 
is not the case for NOX emissions from the Miami Smelter.
    Response: Based on the visibility results provided by the 
commenters, we agree that the visibility impact of NOX 
emissions from the Miami Smelter is below 0.50 dv. However, as 
explained in response to a similar comment regarding PM10 
emissions from the Hayden Smelter, once a facility is determined to be 
subject to BART, the RHR allows for the exemption of specific 
pollutants from a BART analysis only if they are below specified de 
minimis levels.\93\ Although a small pollutant-specific baseline 
visibility impact may be informative in determining what control option 
may be BART, a BART analysis is still required for any pollutant that 
exceeds the de minimis threshold at an otherwise subject-to-BART 
source. Emissions of NOX from the BART-eligible units at 
Miami exceed the de minimis threshold of 40 tpy. Therefore, we are 
finalizing our proposed disapproval of ADEQ's determination that the 
Miami Smelter is exempt from BART for NOX.
---------------------------------------------------------------------------

    \93\ Id.
---------------------------------------------------------------------------

    Comment: FMMI asserted that even if the Miami Smelter is subject to 
BART for NOX, the State effectively conducted a streamlined 
BART determination in its RP analysis and concluded that existing 
controls constitute BART. According to the commenter, the State 
recognized that the Miami Smelter holds a PSD permit that contains Best 
Available Control Technology (BACT) limits for NOx. FMMI 
added that the State considered the costs of compliance, time necessary 
for compliance, energy and non-air quality impacts of compliance and 
remaining useful life of Arizona's copper smelters, and concluded that 
no additional NOX controls were retrofit options for this 
source category.
    Response: We partially agree with this comment. We agree with the 
commenter's assertion that several elements of ADEQ's RP analysis for 
the copper smelters are potentially relevant and could inform a BART 
determination. However, neither the 2011 RH SIP nor the Supplement 
contained or identified a NOX BART analysis for the Miami 
Smelter. As a result, we are not able to approve a streamlined 
NOX BART determination of no additional controls.
    Comment: FMMI also included a five-factor NOX BART 
analysis in its comments. The commenter indicated that the BACT 
analysis for NOX conducted in support of the Miami Smelter's 
1997 PSD permit eliminated combustion modifications and selective non-
catalytic reduction (SNCR) due to technical infeasibility and 
eliminated SCR based on economic infeasibility (costs of at least 
$10,000/ton of NOX reduced).
    Response: In our proposal of December 21, 2012, we did not propose 
a NOX BART determination for the Miami Smelter. Rather, we 
proposed to disapprove ADEQ's finding that the Miami Smelter was exempt 
from a NOX BART determination. We acknowledge the 
information provided by the commenters, and will examine it, along with 
similar information provided by other commenters on this issue, as we 
develop a proposed FIP for those elements of the Arizona RH SIP that we 
do not approve.
5. EPA's Evaluation of Arizona's BART Analyses and Determinations
a. BART Determination for Catalyst Paper
    Comment: ADEQ commented that Catalyst Paper has now cancelled the 
operating permit for its permanently closed facility. Accordingly, the 
commenter stated that there is no reason for EPA to require Catalyst 
Paper to notify EPA prior to resuming operation, as proposed. The 
commenter added that since the plant has permanently closed, resuming 
operation will be treated as the construction of a new plant and will 
be subject to NSR, rather than BART. Two other commenters (Earthjustice 
and NPS also provided comments regarding the proposed approach to BART 
at Catalyst Paper.
    Response: ADEQ submitted as Appendix B to its comments two letters 
regarding the Snowflake Mill at Catalyst Paper: a letter from the site 
manager seeking termination of the facility's operating permit and a 
letter from the ADEQ Air Division Director terminating the permit.\94\ 
Both letters, as well as

[[Page 46157]]

ADEQ's comments describe the plant's closure as ``permanent.'' \95\ 
Pursuant to long-standing EPA policy, ``reactivation of a permanently 
shutdown facility will be treated as operation of a new source for 
purposes of PSD review.'' \96\ Consistent with this policy, ADEQ's 
comments affirm that reactivation of the Snowflake Mill ``will be 
treated as the construction of a new plant and will be subject to new 
source review.'' \97\ In addition, as part of the May 3, 2013, 
Supplement, ADEQ revised various sections of its plan to clarify that 
this facility is permanently closed and that they are therefore not 
conducting a BART analysis.
---------------------------------------------------------------------------

    \94\ Letter from John Groothuizen, Site Manager at the Catalyst 
Paper Snowflake to Eric Massey, Director Air Quality Division, ADEQ, 
Re: Catalyst Paper (Snowflake) Inc Facility Closure, Title V Permit 
No. 46898 Termination (December 21, 2012); Letter from Eric Massey, 
Director Air Quality Division, ADEQ to John Groothuizen, Site 
Manager at the Catalyst Paper Snowflake, Re: Termination of Air 
Quality Control Permit No. 46898, Snowflake Paper Mill (Jan. 24, 
2013).
    \95\ Id.; ADEQ Comments at page 12.
    \96\ In re Monroe Electric Generating (Petition No. 6-99-2), EPA 
Order Partially Granting and Partially Denying Petition for 
Objection to Permit at 8 (June 11, 1999).
    \97\ ADEQ Comments at page 12.
---------------------------------------------------------------------------

    In our notice of May 20, 2013, we proposed to approve ADEQ's 
decision not to include such an analysis in the SIP.\98\ We did not 
receive any adverse comments on that proposal and we are finalizing 
that approval today.
---------------------------------------------------------------------------

    \98\ 77 FR 29304.
---------------------------------------------------------------------------

b. BART Analysis and Determination for PM10 at Miami Smelter
    Comment: Earthjustice disagreed with EPA's proposal to approve 
ADEQ's streamlined BART analysis for PM at the Miami Smelter, stating 
that a full five-factor BART analysis for PM is required. The commenter 
noted that the State conducted a streamlined BART analysis for PM based 
on the maximum achievable control technology (MACT) standard for 
primary copper smelters, which requires various controls limiting PM 
emissions as a surrogate for hazardous air pollutants. While conceding 
that the BART Guidelines allow, in general, a streamlined BART analysis 
if the source is subject to a MACT standard, the commenter asserted 
that the BART Guidelines require a full five-factor BART analysis in 
circumstances where the MACT standard likely does not represent the 
most stringent level of control, such as when new technologies that are 
likely cost-effective and more stringent are introduced after the MACT 
determination was made.
    Response: We disagree with the commenter's assertion that a full 
five-factor BART analysis is required for PM10 at the Miami 
Smelter. The BART Guidelines specifically note that ``unless there are 
new technologies subsequent to the MACT standards that would lead to 
cost-effective increases in the level of control, you may rely on the 
MACT standards for purposes of BART.'' \99\ Based on the most recent 
Title V permit for the facility, the maximum allowable emission rate 
for particulate matter at the acid plant tail gas stack, which 
represents emissions from the converters and acid plant, is 87.67 
tpy.\100\ Although this emission limit does not precisely apply to the 
BART-eligible source, the relatively small quantity of PM10 
emissions from the acid plant tail gas stack indicates that large 
amounts of additional particulate emission reductions from the BART-
eligible source are not likely. As a result, we did not identify any 
control options that ``would lead to cost-effective increases in the 
level of control.'' The commenters, similarly, have not identified any 
new technologies or any control options that would result in cost-
effective increases in the level of particulate matter control. As a 
result, we continue to consider ADEQ's streamlined BART analysis for 
PM10 appropriate for the Miami Smelter, and are today 
finalizing our proposed approval of this element of the Arizona RH SIP.
---------------------------------------------------------------------------

    \99\ 40 CFR Part 51, Appendix Y, Section IV.C.
    \100\ ADEQ Title V Permit 53592, issued 2012-11-26.
---------------------------------------------------------------------------

c. BART Analyses and Determinations for SO2 at the Hayden 
and Miami Smelters
    Comment: One commenter (Earthjustice) supported EPA's proposal to 
disapprove ADEQ's BART determination for SO2 at the Hayden 
and Miami Smelters, asserting that the streamlined BART determinations 
carried out by the State are impermissible under the BART Guidelines. 
Other commenters (ADEQ, ASARCO and FMMI) opposed EPA's proposed 
disapproval, arguing that ADEQ's analyses were consistent with all 
applicable legal requirements and that EPA had not demonstrated that 
ADEQ's approach was arbitrary or capricious. ASARCO added that EPA 
cannot disapprove the State's BART analysis for the Hayden Smelter on 
the basis that it does not comply with the BART Guidelines because the 
EPA has expressly stated that the BART Guidelines do not bind the 
states for non-electric generating units.
    Response: As an initial matter, we agree that the BART Guidelines 
are not binding for sources other than fossil fuel-fired electric 
generating plants with a total generating capacity in excess of 750 
megawatts.\101\ However, as explained in the preamble to the BART 
Guidelines, EPA ``encourage[s] States to follow the guidelines for all 
source categories.'' \102\ Moreover, the Arizona RH SIP itself 
indicates that ADEQ generally followed the BART Guidelines in 
conducting all of its BART analyses.\103\ Therefore, we considered the 
BART Guidelines in our review of ADEQ's BART determinations. Where we 
found that ADEQ's analyses diverged from the BART Guidelines, we did 
not consider this as a cause for disapproval per se, but as an 
indication that we needed to perform a more thorough review of the 
analyses.
---------------------------------------------------------------------------

    \101\ See 40 CFR part 51, appendix Y, section I.H (``For sources 
other than 750 MW power plants . . . States retain the discretion to 
adopt approaches that differ from the guidelines.''
    \102\ 70 FR 39104, 39108 (July 6, 2005).
    \103\ See, e.g., Arizona RH SIP, Appendix D at 33-39 (explaining 
Arizona's approach to it five-factor analyses and how it corresponds 
to the process set out in the Guidelines).
---------------------------------------------------------------------------

    The CAA and the RHR require BART to be determined based upon an 
analysis of five factors: (1) The costs of compliance; (2) the energy 
and non-air quality environmental impacts of compliance; (3) any 
existing pollution control technology in use at the source; (4) the 
remaining useful life of the source; and (5) the degree of improvement 
in visibility which may reasonably be anticipated to result from the 
use of such technology.\104\ ADEQ did not conduct such a five-factor 
analysis for SO2 at either of the copper smelters, but 
instead chose to conduct ``streamlined'' analyses relying on the 1974 
New Source Performance Standard (NSPS) for primary copper smelters at 
40 CFR part 60, subpart P. While the BART Guidelines allow for 
streamlined analyses under specific circumstances (e.g., for VOC and PM 
sources subject to MACT standards), they also note that ``we do not 
believe that technology determinations from the 1970s or early 1980s, 
including new source performance standards (NSPS), should be considered 
to represent best control for existing sources, as best control levels 
for recent plant retrofits are more stringent than these older 
levels.'' \105\ The Guidelines also explain that ``[a]nalysis of the 
BART factors could result in the selection of a NSPS level of control, 
but you should reach this conclusion only after considering the full 
range of control options.'' \106\ Accordingly, ADEQ's streamlined

[[Page 46158]]

analysis based on the NSPS of 1974 is inconsistent with the general 
statutory and regulatory requirement for a complete five-factor 
analysis and with the BART Guidelines' admonition that NSPS should be 
selected as BART only after a complete five-factor analysis.
---------------------------------------------------------------------------

    \104\ CAA section 169A(g)(2), 40 CFR 51.308(e)(1)(ii)(A). The 
RHR also allows states to adopt an emissions trading program or 
other alternative program instead of source-specific BART controls, 
as long as the alternative provides greater reasonable progress 
towards improving visibility than BART. 40 CFR 51.308(e)(2). 
However, this ``better than BART'' approach was not employed by ADEQ 
and is not relevant here.
    \105\ 40 CFR part 51, appendix Y, section IV.C.
    \106\ Id. section IV.D.1., n. 13 (emphasis added).
---------------------------------------------------------------------------

    Moreover, even if a streamlined analysis were appropriate in this 
instance, ADEQ should have considered whether any new technologies had 
become available subsequent to the NSPS.\107\ As part of its 
streamlined analysis, ADEQ did examine the RBLC \108\ and found that no 
emission limitation or air pollution control devices have been approved 
for copper smelters for sulfur oxides since the installation of the 
double-contact acid plant in 1974. However, in order to determine 
whether new technologies have become available, ADEQ should have looked 
more broadly at other sources of information.\109\ In particular, acid 
plant catalyst vendor information and industry trade journals indicate 
that a number of advances in acid plant catalyst technology have been 
made since promulgation of Subpart P in 1974, including development of 
cesium-promoted catalyst as well as certain enhancements to standard 
potassium-promoted catalysts.110 111 112 These improvements 
to acid plant catalysts have the ability to increase conversion rates 
of SO2 to SO3 in the acid plant, resulting in 
decreased SO2 emissions.113 114 Accordingly, ADEQ 
should have considered whether any such improvements could be made at 
the Hayden and Miami acid plants. Without even considering such 
potential improvements, it was not reasonable for ADEQ to conclude that 
the existing acid plant at each facility constitutes the most stringent 
control available and to thus avoid performance of a complete five-
factor analysis.\115\ In sum, because ADEQ performed neither a full 
five-factor analysis nor an adequate streamlined analysis for 
SO2 at the Hayden and Miami Smelters, we find that its 
determinations do not comply with CAA section 169A(g)(2) and 40 CFR 
51.308(e)(1)(ii)(A).
---------------------------------------------------------------------------

    \107\ 40 CFR part 51, appendix Y, section IV.C.
    \108\ The Reasonably Available Control Technology (RACT)/Best 
Available Control Technology (BACT)/Lowest Achievable Emission Rate 
(LAER) Clearinghouse. The RBLC is a database of control technology 
determinations and emission limits established in construction 
permits issued by state and local agencies.
    \109\ See the BART Guidelines 40 CFR part 51, appendix Y, 
section IV.D (listing various sources of information regarding 
control options, including the RBLC, State and Local Best Available 
Control Technology Guidelines, control technology vendors; NSR 
permits and associated inspection/performance test reports; 
environmental consultants; and technical journals, reports and 
newsletters, air pollution control seminars).
    \110\ ``Improving Sulfuric Acid Plant Performance,'' AIChE 
Clearwater Convention 2011, Phosphate Fertilizer and Sulfuric Acid 
Technology Conference.
    \111\ ``VK Series sulphuric acid catalysts'', Haldor Topsoe.
    \112\ Winkler, Chris ``MECS Catalyst Products and Technical 
Services Update'', The Southern African Institute of Mining and 
Metallurgy, Sulphur and Sulphuric Acid Conference 2009.
    \113\ ``Meeting future SO2 emission challenges with 
Tops[oslash]e's new VK-701 LEAP5\TM\ sulphuric acid catalyst'', 
Haldor Topsoe.
    \114\ Malevu, Siyabonga ``J Acid Plant Capacity Increase'', The 
Southern African Institute of Mining and Metallurgy, Sulphur and 
Sulphuric Acid Conference 2009.
    \115\ See BART Guidelines section IV.D.1. (``If you find that a 
BART source has controls already in place which are the most 
stringent controls available (note that this means that all possible 
improvements to any control devices have been made), then it is not 
necessary to comprehensively complete [a full five-factor 
analysis]''.
---------------------------------------------------------------------------

    Comment: ASARCO and FMMI asserted that there are substantial 
technical and operational differences between sulfur-burning and other 
acid-producing plants and metallurgical plants used for emissions 
control, and there is no technical basis for seeking to compare 
metallurgical acid plant conversion efficiencies to such other plants. 
ASARCO also asserted that there are considerable differences between 
metallurgic acid plants at lead and zinc smelters, primarily as a 
result of the concentration of SO2 at the acid plant inlet.
    Response: While we appreciate the information provided by the 
commenters, we find it is insufficient to rule out the consideration of 
other acid plants in the BART analyses for the copper smelters. We note 
that, with respect to identification of available controls, the BART 
Guidelines indicate that, ``control alternatives can include not only 
existing controls for the source category in question but also take 
into account technology transfer of controls that have been applied to 
similar source categories and gas streams.'' \116\ In this case, all 
sulfuric acid plants, whether elemental sulfur, spent acid, or 
metallurgical, utilize the contact process to manufacture sulfuric 
acid. That is, all plants use the same equipment and the same 
technology to convert SO2 to sulfuric acid--the same 
converters, catalyst, and absorbing towers. Also, all sulfuric acid 
plants utilize the same pollution control technology. In dual 
absorption contact plants, maximization of catalyst loading and updates 
to catalyst, including the use of cesium promoted catalyst in the 
fourth pass of the converter, is demonstrated as being very effective 
at reducing SO2 emissions. The efficacy of catalyst 
improvements is independent of whether the sulfuric acid plant is 
attached to a copper smelter.
---------------------------------------------------------------------------

    \116\ See BART Guidelines, 40 CFR part 51, appendix Y, section 
IV.D. As explained elsewhere in this document, although the 
Guidelines are not binding for copper smelters, EPA recommends their 
use for all source categories.
---------------------------------------------------------------------------

    The difference between primary sulfuric acid plants and 
metallurgical sulfuric acid plants is the source of the SO2 
coming into the acid plant and the front-end equipment necessary to 
prepare the SO2-rich gas to be introduced to the converter. 
The commenters assert that there is variation in the concentration 
SO2 gas feed to their sulfuric acid plant converters. 
However, the fact that the Hayden and Miami Smelters successfully 
operate dual absorption sulfuric acid plants demonstrates that they can 
handle variations in SO2 concentration. So long as this is 
the case, these plants would be expected to achieve cost-effective 
SO2 emissions reductions through catalyst improvements. In 
order to assess what improvements may be achievable at the copper 
smelters, it is appropriate to look to what degree of control has been 
achieved at other acid plants. Therefore, we do not agree that it was 
reasonable for ADEQ not to evaluate the emissions levels achieved at 
primary sulfuric acid plants in the State's SO2 BART 
analyses for the Hayden and Miami Smelters.
    Comment: ASARCO disagreed with EPA's suggestion that ADEQ did not 
analyze whether the acid plant at the Hayden Smelter was operating at 
an optimal control level in establishing the double contact acid plant 
as BART.
    ASARCO asserted that EPA's suggestion that its acid plant may be 
able to achieve higher levels of control than the NSPS was made without 
any technical support. It argued that EPA had not pointed to any change 
in technology or practice that would make irrelevant the technical 
considerations that drove the NSPS subpart P conclusions.
    Response: The NSPS for primary copper smelters was issued 
approximately four decades ago. As noted in a previous response, 
significant improvements have been made to catalyst technology, 
computerized process control, and continuous process monitoring since 
that time. For these reasons, we find that higher levels of control may 
well be achievable in practice. Nonetheless, we are not finalizing any 
additional requirements or any particular level of control in today's 
action. We will consider these comments as we develop a FIP proposal 
including a BART analysis for the Hayden Smelter.

[[Page 46159]]

    Comment: ASARCO stated that the company's experts were not able to 
identify any control technology that would result in more substantial 
SO2 emission reductions than the present double absorption, 
double contact acid plant at the Hayden Smelter. The commenter 
indicated that replacement of the five existing variably-sized 
converters with three identically-sized converters to allow more 
balanced operation could result in decreased SO2 emissions, 
but asserted that changing the Hayden Smelter from a five-converter 
operation to a three-converter operation constitutes a redesign of the 
source, which is not required as BART.
    Response: We agree that replacing the converters would constitute 
fundamental redesign of the source and is not required as BART. 
However, before concluding that the existing controls constitute BART, 
it is necessary to consider not only whether there are any new control 
technologies are available, but also whether there are any improvements 
that could be made to the operations of existing equipment, the capture 
of process emissions, and the control of captured emissions. ADEQ did 
not consider any such improvements in its streamlined analysis.
    Comment: Three commenters (FMMI, ADEQ and ASARCO) asserted that 
NSPS subpart P's limit on SO2 emissions from primary copper 
smelters was designed and intended to apply to emissions controlled by 
a double-contact acid plant. The commenters stated that the NSPS does 
not apply to emissions that are not susceptible to acid plant control 
such as fugitives and secondary converter emissions.
    Response: As explained elsewhere in this document, we are 
disapproving ADEQ's SO2 BART determinations for the Hayden 
and Miami Smelters because they are not based on a complete five-factor 
analysis or an adequate streamlined analysis. Therefore, the 
applicability of the NSPS subpart P emission limit is not directly 
relevant to our action today. We will take these comments into 
consideration as we prepare to propose a FIP that will include 
SO2 BART analyses and determinations for the Hayden and 
Miami Smelters.
    Comment: FMMI indicated that the Miami Smelter has been evaluating 
potential additional SO2 controls in preparation for the 
State's revised SIP to demonstrate compliance with the recent one-hour 
SO2 NAAQS, resulting in the preliminary conclusion that the 
only possible additional controls involve upgrades to the scrubbing 
system and the capture of fugitive SO2 emissions for 
treatment in a scrubber. The commenter asserted that while some such 
measures may ultimately be necessary to achieve the one-hour NAAQS, the 
costs and possibly the degree of visibility improvement would not 
justify these controls as BART.
    Response: In our December 21, 2012 proposal we did not propose an 
SO2 BART determination for the Miami Smelter. Rather, we 
proposed to disapprove ADEQ's streamlined SO2 BART analysis. 
We acknowledge the information provided by the commenters, and will 
consider it, along with similar information provided by other 
commenters on this issue, as we develop a proposed FIP for those 
elements of the SIP that we do not approve.
    Comment: FMMI commented that EPA should consider the forthcoming 
Arizona SIP revision to address the new one-hour SO2 NAAQS, 
as part of EPA's proposed action on ADEQ's BART determination for the 
Miami Smelter. The commenter noted that ADEQ has determined that the 
Miami Smelter is the only major source of SO2 in the 
proposed Miami one-hour SO2 nonattainment area. As a result, 
all reductions in SO2 emissions necessary to bring the Miami 
area into attainment must be accomplished by the Miami Smelter by 2018. 
The commenter noted that this timing is consistent with the 2018 
milestone year adopted by EPA in the RHR and adopted by Arizona in its 
RH SIP. Given these parallel timing requirements and EPA's past 
practice of allowing entities several years to install BART controls, 
the commenter requested that EPA give this alternative compliance 
approach due consideration.
    Response: We recognize that there are potentially similar timing 
requirements between BART and complying with the one-hour 
SO2 NAAQS, and that some of the measures planned for 
attaining the NAAQS may also affect the BART-subject units at the Miami 
Smelter. At this time, we have not received information related to the 
State's SO2 SIP revisions. In the event that we receive such 
information, we will consider it as we work toward proposal of a FIP.
d. Compliance Provisions for Hayden and Miami Smelters
    Comment: FMMI and ASARCO disagreed with EPA's finding that the 
Arizona RH SIP lacks adequate compliance provisions. FMMI contended 
that the controls and limits determined to be BART are already in place 
and currently enforceable. It noted that, to the extent that the 
State's BART determinations are based on NESHAP or NSPS requirements, 
these requirements are, by definition, ``federally enforceable.'' These 
and other requirements, including those necessary to ensure compliance 
(e.g., testing, monitoring, recordkeeping and reporting) with the 
limits identified as BART are also included in the source's permit as 
conditions, which are likewise federally enforceable. The commenter 
also indicated that because the source is currently required to 
maintain the controls determined to be BART, and has established and 
must comply with procedures to ensure that the equipment is properly 
operated and maintained, the EPA's concerns in this area also appear 
unwarranted.
    Response: As explained in our proposal, Regional Haze SIPs must 
include requirements to ensure that BART emission limits are 
enforceable.\117\ In particular, the RHR requires inclusion of (1) a 
schedule for compliance with BART emission limitations for each source 
subject to BART; (2) a requirement for each BART source to maintain the 
relevant control equipment and (3) procedures to ensure control 
equipment is properly operated and maintained.\118\ General SIP 
requirements also mandate that the SIP include all regulatory 
requirements related to monitoring, recordkeeping and reporting for the 
BART emissions limitations.\119\ While some of the required compliance 
provisions may be contained in the Hayden and Miami Smelters' Title V 
permits, these provisions are not incorporated into the applicable SIP. 
Likewise the SIP contains no compliance schedules or requirements or 
procedures to ensure that the control equipment is properly operated 
and maintained. Therefore, we find that the SIP does not meet the 
requirements of 40 CFR 51.212(c) and 51.308(e)(1)(iv) and (v).
---------------------------------------------------------------------------

    \117\ 77 FR 75725-75726 (internal citations omitted).
    \118\ 40 CFR 51.308(e)(1)(iv), (v).
    \119\ See, e.g. CAA section 110(a)(2)(F) and 40 CFR 51.212(c).
---------------------------------------------------------------------------

6. EPA's Evaluation of Arizona's Reasonable Progress Goals
a. Reasonable Progress Goals for the Best Days
    Comment: ADEQ expressed support for EPA's proposed determination 
that the modeled increase in visibility impairment at IMPROVE monitors 
CHIR1 and SAGU1 is not a concern. The commenter added that this 
determination is supported by the analysis supplied in a November 21, 
2011, letter from Eric Massey of ADEQ

[[Page 46160]]

to Deborah Jordan, which the commenter attached as Appendix C to the 
comments.
    In contrast, Earthjustice found fault with EPA's statement that it 
is not overly concerned with the modeling results, which the commenter 
characterized as downplaying the projected visibility degradation at 
these two monitors that represent four Class I areas. The commenter 
stated that the evidence cited by EPA regarding improvement in 
visibility on the worst days provides no support for the conclusion 
that visibility would correspondingly improve on the best days. The 
commenter also asserted that while visibility at these four Class I 
areas may be better than ADEQ's modeling predicts because the State did 
not take into account EPA's BART FIP for three coal-fired power plants 
in Arizona, EPA cannot dismiss modeling that shows visibility 
degradation simply based on speculation that the model may not be 
accurate. The commenter expressed support for EPA's proposed 
disapproval of ADEQ's RPGs for the 20 percent best visibility days 
because, contrary to the requirements of the RHR, visibility at four 
Class I areas represented by these two monitors is projected to be 
degraded under the Arizona RH SIP.
    Response: EPA acknowledges ADEQ's support on this issue. The 
analysis provided in the November 21, 2011, letter was helpful. Table 
14 of the Supplemental TSD was also helpful in demonstrating that the 
model's prediction of increased impairment from fine soil is not 
supported by the monitoring data. Nonetheless, we wish to clarify that 
a lack of degradation does not necessarily constitute reasonable 
progress for the best days. In addition to ensuring no degradation for 
the 20-percent best days, a state's RPGs must be based on an analysis 
of the four RP factors when setting these goals: costs of compliance, 
time necessary for compliance, energy and non-air quality environmental 
impacts, and the remaining useful life of potentially affected 
sources.\120\ As described elsewhere in this document, we have 
determined that ADEQ has not conducted an adequate four-factor analysis 
in support of its RPGs. In addition, ADEQ's RPGs rely on emission 
reductions from BART determinations for which there are no enforceable 
emissions limitations in the applicable SIP. Therefore, we are 
finalizing our proposed disapproval of ADEQ's RPGs for the 20-percent 
best days.
---------------------------------------------------------------------------

    \120\ 40 CFR 51.308(d)(1)(i)(A).
---------------------------------------------------------------------------

    With regard to Earthjustice's concern, we note that we are not 
dismissing the modeling results. Rather, we are considering these 
results in the context of additional information and analysis that has 
been developed since the modeling was performed. In particular the 
emissions inventory upon which the modeling was based was completed 
before the nationwide recession that began in late 2008. The inventory 
was updated in 2009 with more up-to-date data on projected emissions 
from electric generating units, but many source categories that are 
sensitive to economic growth projections were not updated.
b. Reasonable Progress Goals for the Worst Days
    Comment: ADEQ indicated that EPA failed to recognize the ``wide 
latitude'' and ``considerable flexibility'' afforded to states by the 
CAA and the RHR in its review of the State's analysis and RPGs,\121\ 
instead substituting its own judgment for the State's. The commenter 
asserted that the 2011 RH SIP includes an analysis that considers the 
four statutory factors and provides a reasoned basis for excluding 
various emission sources from consideration for additional controls in 
establishing the State's initial RPGs. The commenter added that while 
the proposal asserts that a number of the elements of the State's RPG 
analysis lacked ``adequate'' analysis or included ``insufficient'' 
information, the proposal is short on specifics and fails to identify 
any requirement of the CAA or RHR that the State has violated. 
CalPortland similarly asserted that EPA failed to adequately explain 
why Arizona's RP analysis is insufficient.
---------------------------------------------------------------------------

    \121\ Citing EPA's Guidance for Setting Reasonable Progress 
Goals Under the Regional Haze Program at 4-2 (June 1, 2007) (``RP 
Guidance'').
---------------------------------------------------------------------------

    Response: While the CAA and the RHR do provide considerable 
flexibility to states in setting RPGs, they also provide specific 
requirements that must be met in order for the RPGs to be approved. In 
particular, both the CAA and the RHR require states to consider four 
factors when setting RPGs: costs of compliance, time necessary for 
compliance, energy and non-air quality environmental impacts, and the 
remaining useful life of potentially affected sources.\122\ In 
addition, because Arizona's RPGs provide for a rate of improvement 
slower than the URP, the RHR requires the State to demonstrate why its 
RPGs are reasonable and why a rate of progress leading to natural 
visibility conditions by 2064 is not reasonable.\123\ The Arizona RH 
SIP does not meet these requirements.
---------------------------------------------------------------------------

    \122\ CAA section 169A(g)(1), 42 U.S.C. 7491(g)(1). 40 CFR 
51.308(d)(1)(i)(A).
    \123\ 40 CFR 51.308(d)(1)(ii).
---------------------------------------------------------------------------

    In conducting its RP analysis, ADEQ elected to focus on point and 
area sources of SO2 and NOX.\124\ ADEQ then 
identified several categories of sources with significant 
NOX and SO2 emissions.\125\ However, in most 
instances, ADEQ did not conduct a four-factor analysis of sources in 
these categories. For example, with respect to boilers (including non-
BART electric generating units), the SIP states, ``it is not possible 
to complete a exhaustive facility-by-facility review to evaluate each 
unit and therefore no further analysis was conducted.'' \126\ Thus, the 
SIP contains no four-factor analysis of the very sources that the State 
has identified as potentially contributing to visibility 
impairment.\127\
---------------------------------------------------------------------------

    \124\ Arizona RH SIP Section 11.3.1 (Supplement, page 47).
    \125\ See Arizona's RH SIP Tables 11.2 and 11.3.
    \126\ Arizona RH SIP Section 11.3.3 (Supplement, page 50).
    \127\ The Arizona RH SIP Supplement does contain a four-factor 
analysis for NOX PCC. However, as explained elsewhere in 
this document, this analysis is inadequate to meet the requirements 
of 40 CFR 51.308(d)(1)(i)(A), since it does not include an accurate 
assessment of the four reasonable progress factors.
---------------------------------------------------------------------------

    Accordingly, we find that the Arizona RH SIP does not meet the 
requirements of 40 CFR 51.308(d)(1)(i)(A) and (ii) with respect to 
point and area sources of NOX and SO2. 
Nonetheless, as explained elsewhere in this document, we have conducted 
our own four-factor analysis for point sources of SO2 and 
have concluded that it is reasonable not to require additional controls 
for this source category during this planning period. Therefore, we are 
approving the State's decision not to require additional controls for 
SO2 emissions from point sources for this planning period.
    Comment: CalPortland noted that Arizona, in conjunction with WRAP, 
conducted an extraordinarily detailed and thorough RP analysis for each 
Class I area that identified and analyzed existing emission sources, 
the rate of progress needed to attain natural visibility conditions, 
pollutant-specific contributions to regional haze, and reasonable 
controls. The commenter added that the data developed by WRAP has been 
relied on in several other SIPs, has been reviewed and approved by EPA 
and, as EPA has agreed, should be considered in EPA's review of 
Arizona's SIP.
    CalPortland also indicated that the results of Arizona's thorough 
analysis demonstrate that significant progress is being made. According 
to the commenter, the 2011 RH SIP indicates

[[Page 46161]]

that anthropogenic emissions of NOX and SO2 will 
decrease by 39.4 and 29.6 percent, respectively, by 2018. The commenter 
asserted that the proposal to disapprove Arizona's RP analysis subjects 
Arizona to a higher standard for reasonable progress demonstrations 
than EPA has approved, and promulgated itself, for other states. In 
particular, CalPortland stated that Arizona's analysis for Saguaro 
National Park compares favorably to the approved approaches taken by 
New Mexico and California, and with the approach taken by EPA for the 
Hawaii FIP.
    Regarding New Mexico, CalPortland noted that even though the 
State's Class I areas were not projected to meet the URP, EPA approved 
the State's RP analysis because uncontrollable sources such as natural 
wildfires, wind-blown dust, and emissions from Mexico were significant 
contributors to regional haze.\128\ The commenter pointed out that 
these same uncontrollable sources are significant contributors to 
regional haze in Arizona and the major impediment to meeting the URP at 
Saguaro National Park.
---------------------------------------------------------------------------

    \128\ Citing 77 FR 36044 and 77 FR 70693.
---------------------------------------------------------------------------

    CalPortland added that EPA also approved California's RP analysis 
even though the State's Class I areas did not all meet the URP. The 
commenter reproduced a 17-line paragraph that it asserted was the full 
extent of California's RP analysis for 35 facilities that emit more 
than 100 tons per year of SOx in the California Coastal sub-
region. In addition, the commenter reproduced a paragraph that was 
purported to be the entire four-factor analysis for NOX 
point sources in Hawaii. Given that these RP analyses were deemed 
adequate by EPA, the commenter asserted that it would be inconsistent 
to conclude that Arizona's ``thorough and accurate'' RP analysis is 
insufficient.
    Response: EPA agrees that the technical work conducted by the WRAP 
for the emissions inventory, natural conditions estimates and IMPROVE 
monitoring data analysis was of appropriate technical quality to meet 
the requirements of the RHR. We also concur that significant progress 
in reducing NOX and SO2 emissions is projected by 
2018. However, as detailed in section IV.B.2 of this document, Arizona 
did not provide an adequate four-factor analysis as required by the 
RHR.
    EPA disagrees with the commenter's assertion that we are holding 
Arizona to a higher standard than other states. As described elsewhere 
in this rule, EPA finds that Arizona's RP analysis was not adequate to 
comply with the requirements of the RHR. This determination is not 
inconsistent with our findings in New Mexico, California and Hawaii.
    In the case of New Mexico, the State's plan \129\ provided a more 
complete analysis of the four factors than was found in the Arizona RH 
SIP. New Mexico's analysis fully incorporated the work performed by 
WRAP and included an additional four-factor analysis for select 
refinery sources. The New Mexico SIP also provided a RP analysis for 
individual Class I areas, addressing the requirement for additional 
analysis when the URP is not projected to be met.
---------------------------------------------------------------------------

    \129\ ``New Mexico State Implementation Plan Regional Haze 
Section 309(g)'', New Mexico Department of Environmental Quality, 
Revised March 31, 2011. See Chapter 11 and Appendices E and F 
(http://www.nmenv.state.nm.us/aqb/reghaz/NMRegionalHazeandInfrastructureSIPsubmittals.htm).
---------------------------------------------------------------------------

    Moreover, the commenter is making an incomplete presentation of the 
RP analysis in the California RH SIP. Chapter 4 of California's RH SIP 
\130\ provides a detailed state-wide four-factor analysis as well as a 
region-by-region assessment of the reasonableness of additional 
controls. Another key difference between California and Arizona is that 
California's point sources are well controlled because nearly all are 
in areas that exceed state and Federal standards for ozone and/or 
PM2.5.\131\ In addition, California's on-road mobile sources 
are subject to State requirements that exceed the Federal requirements 
in Arizona.\132\ These facts were all key factors in EPA's evaluation 
of California's RP analysis. Similarly, the commenter has 
mischaracterized the nature of the four-factor analysis in the Hawaii 
RH FIP. The quoted section covered only a small part of the RP analysis 
for Hawaii.\133\ In addition, the situation in Hawaii is not comparable 
with any other regional haze plan in the United States. The visibility 
impairment on the worst 20 percent of days is dominated by sulfur 
emissions from natural and man-made sources.\134\ Due to the highly 
variable nature of volcanic sulfur emissions, it was not practicable to 
perform photochemical grid modeling to set RPGs.\135\ As a result, the 
Hawaii-specific method of gauging reasonable progress that was used 
makes any comparisons with Arizona inappropriate.\136\
---------------------------------------------------------------------------

    \130\ California Regional Haze Plan submitted to EPA on March 
16, 2009, Sections 4.6-4.7.
    \131\ California Regional Haze Plan, Sections 4.3 and 4.7.
    \132\ California Regional Haze Plan, Section 4.2.1.
    \133\ See Hawaii RH FIP proposal, May 29, 2012, 77 FR 31707-
31712 and Hawaii RH FIP final rule, October 9, 2012, 77 FR 61489-
61493.
    \134\ See ``Technical Support Document for the Proposed Action 
on the Federal Implementation Plan for the Regional Haze Program in 
the State of Hawaii'', Air Division, U.S. EPA Region 9, May 14, 
2012, sections II.A.3 and II.B.3.
    \135\ See 77 FR 31707.
    \136\ See 77 FR 31708.
---------------------------------------------------------------------------

    Comment: Earthjustice supported EPA's proposal to disapprove the 
State's RPGs for the 20 percent worst visibility, since the State did 
not explain why the 2064 natural visibility goal is unreasonable at 
Arizona's Class I areas, nor how the State's RPGs could possibly be 
reasonable. Earthjustice also argued that even if the State had 
attempted to defend its RPGs, EPA's disapproval would be well 
justified, since a RH SIP that attempts to transform the RHR's 50-year 
compliance window into a 125-year to 8,370-year compliance window is 
unreasonable and legally indefensible.
    Response: EPA acknowledges the supportive comments. We agree that 
the State failed to meet the requirements of 40 CFR 51.308(d)(1) in 
that the State failed to fully demonstrate, using the four factors 
required for a RP analysis, why its goals are reasonable. EPA notes, 
however, that the State is not required to provide a plan that 
demonstrates elimination of anthropogenic visibility impairment by 
2064. Rather, as noted above, the RHR requires the State to demonstrate 
why its RPGs are reasonable and why a rate of progress leading to 
natural visibility conditions by 2064 is not reasonable.\137\ As 
explained above, EPA has determined that Arizona's SIP does not meet 
this requirement and that further analysis is required to determine 
whether there are any additional cost-effective controls that could 
reasonably be required in this planning period.
---------------------------------------------------------------------------

    \137\ 40 CFR 51.308(d)(1)(ii).
---------------------------------------------------------------------------

    Comment: Earthjustice supported EPA's proposal to disapprove the 
State's determination that no RP controls are necessary or reasonable 
on non-BART sources, but disagreed with EPA's proposal to approve the 
State's determination that RP controls are not necessary for certain 
source categories, arguing that it is premature to exempt any source 
category from RP controls until EPA knows what emissions reductions 
will be necessary to maintain the glide path to natural visibility by 
2064.
    Specifically, Earthjustice supported EPA's proposed disapproval of 
the State's conclusion that it would be unreasonable: (1) To reduce 
coarse mass or fine soil emissions from any sources, (2) to require any 
emissions reductions

[[Page 46162]]

from area sources, and (3) to reduce NOX emissions from 
point sources, but disagreed with EPA's proposal to approve the State's 
conclusion that no reductions in VOC or primary organic aerosol 
emissions are necessary across the State, and that no reductions are 
necessary from mobile sources, fire, and SO2 point sources.
    Response: EPA acknowledges the commenter's support for our proposed 
disapproval of the State's determination that no controls on non-BART 
sources are required to provide for reasonable progress. However, it is 
important to emphasize that the State's plan is not required to provide 
for a uniform rate of progress toward the goal of zero anthropogenic 
visibility impairment at Class I areas. Calculation of the URP is an 
analytical requirement for setting RPGs, but the URP does not 
constitute a presumptive target.\138\
---------------------------------------------------------------------------

    \138\ See 64 FR 35730-35731.
---------------------------------------------------------------------------

    Regarding the comment that it is premature to determine that no 
additional controls are required on some sources, EPA finds that our 
four-factor analyses, along with the information provided by the State, 
are sufficient to conclude that it is not reasonable to impose 
additional air pollution controls on the following source categories 
for the purposes of ensuring reasonable progress: mobile sources, 
primary organic aerosol sources, VOC sources and point sources of 
SO2. The determination of whether additional controls are 
required is to be made using the four factors specified in the 
RHR.\139\ The commenter does not provide any evidence that additional 
reasonable, cost-effective controls are available for these sources 
with the exception of Springerville power plant. EPA's response to 
these facility-specific comments may be found elsewhere in this rule.
---------------------------------------------------------------------------

    \139\ 40 CFR 52.308(d)(1)(i) and (ii).
---------------------------------------------------------------------------

    Comment: PCC asserted that EPA is inappropriately applying to non-
BART sources the standards that apply to BART sources. The commenter 
questioned this interpretation both generally and to the extent that 
EPA applies the interpretation to the PCC's plant, arguing that EPA 
should maintain a meaningful distinction in practice between control 
technology determinations required for BART sources and reasonable 
progress evaluations.
    Response: EPA disagrees with the commenter's assertion that we are 
applying BART standards to non-BART sources. In reviewing Arizona's RP 
analysis, we have applied the requirements of 40 CFR 51.308(d)(1), not 
the BART requirements in 40 CFR 51.308(e)(1). As explained elsewhere in 
this document, we have concluded that Arizona's analysis of 
NOX controls on point source does not meet these 
requirements. We are therefore disapproving the State's determination 
that it is not reasonable to require additional controls on point 
sources of NOX during this planning period.
    EPA acknowledges the commenter's assertion that we should maintain 
a meaningful distinction between BART and non-BART sources when making 
control technology determinations. However, we also note that there is 
substantial overlap in the statutory and regulatory requirements 
applicable to BART and non-BART sources. In particular, the CAA and the 
RHR require consideration of the costs of compliance, the energy and 
non-air quality environmental impacts of compliance and the remaining 
useful life of the source for both BART and non-BART sources.\140\ In 
addition, the ultimate purpose of requiring controls for both types of 
sources is to achieve reasonable progress toward the national goal of 
eliminating man-made visibility impairment.\141\ Therefore, it is 
appropriate for analyses of potential controls for non-BART sources to 
resemble BART analyses in many respects.
---------------------------------------------------------------------------

    \140\ CAA section 169A(g)(1) and (2), 42 U.S.C. 7491(g)(1) and 
(2); 40 CFR 51.308(d)(1)(i)(A) and (e)(1)(ii)(A). See also RP 
Guidance pages 5-1 and 5-3 (referring to the BART Guidelines for 
guidance on how to apply these factors to non-BART sources).
    \141\ CAA section 169A(b) (2), 42 U.S.C. 7491(b)(2).
---------------------------------------------------------------------------

    Comment: NPS asserted that additional emission controls should be 
required at Cholla Unit 1 in order for Arizona to achieve reasonable 
progress. While conceding that the RP analysis differs from the BART 
analysis, the commenter indicated that there is also substantial 
overlap between these analyses and it can be informative to consider 
relevant BART guidance and examples in conducting RP analyses. 
Accordingly, the commenter analyzed the cost-effectiveness of potential 
additional SO2 and NOX controls for Cholla Unit 
1. Based on these analyses the commenter argued that EPA should 
consider requiring the replacement of or upgrades to the existing wet 
flue gas desulfurization (FGD) scrubber for SO2 control and 
installation of an SCR system for NOX control.
    Response: We agree with NPS that BART guidance and examples can be 
helpful for estimating the cost of controls as part of an RP 
analysis.\142\ However, the analyses performed by NPS are not entirely 
consistent with the BART Guidelines. In particular, NPS provided a cost 
analysis indicating that the cost-effectiveness of a new FGD system is 
$1,320 per ton, based on an uncontrolled baseline emission rate that 
does not reflect the effect of the existing wet lime FGD at Cholla Unit 
1. This approach is inconsistent with the BART Guidelines, which 
provide that, for purposes of calculating the costs of compliance:
---------------------------------------------------------------------------

    \142\ See, e.g. RP Guidance page 5-1 (``For additional guidance 
on applying the cost of compliance factor to stationary sources, you 
may wish to consult the BART guidelines.'').

The baseline emissions rate should represent a realistic depiction 
of anticipated annual emissions for the source. In general, for the 
existing sources subject to BART, you will estimate the anticipated 
annual emissions based upon actual emissions from a baseline 
period.\143\
---------------------------------------------------------------------------

    \143\ BART Guidelines, 40 CFR Part 51, Appendix Y, section 
IV.D.4.d.1.

Accordingly, the baseline emissions rate for Cholla Unit 1 should 
reflect use of the existing wet lime FGD, which is more than 30 years 
old, but continues to operate effectively.\144\ Based on this more 
accurate baseline, we estimate that the cost-effectiveness of a new 
scrubber would be over $20,000/ton.\145\
---------------------------------------------------------------------------

    \144\ Under Section II.D.1.a of Cholla's Title V Permit (2012) 
the existing wet FGD is required to achieve at least 80 percent 
SO2 removal efficiency. As a point of comparison, the 
BART Guidelines recommend that states consider upgrading, rather 
than replacing, existing scrubbers that achieve greater than 50 
percent removal.
    \145\ See ``Cholla 1 SO2 costs.xls''.
---------------------------------------------------------------------------

    Although the existing wet FGD was upgraded in 2007, the scope and 
precise nature of the upgrades are unclear. Therefore, we have included 
wet FGD upgrades as a control option in our SO2 cost-
effectiveness calculations. Based on these calculations, we estimate 
that upgrades to the wet FGD would cost more than $5,200/ton and result 
in emissions reductions of less than 250 tons per year.\146\ Given the 
significant reductions in point source SO2 emissions 
achieved through ADEQ's BART determinations in this planning 
period,\147\ we find that it was reasonable for ADEQ not to require 
additional SO2 controls for Cholla 1 as a reasonable 
progress measure. However, such controls may be necessary in the next 
planning period to ensure continued progress toward eliminating 
anthropogenic visibility impairment.
---------------------------------------------------------------------------

    \146\ Id.
    \147\ See Arizona RH SIP, page 67, Table 8.1 (projecting 28.81 
percent reduction in annual point source SO2 emissions 
between 2002 and 2018); Arizona RH SIP Supplement, page 5, Table 8 
(showing reduction in annual point source SO2 emissions 
of 15,700 tpy between 2002 and 2008).
---------------------------------------------------------------------------

    In addition, the commenter provided estimates of visibility 
improvement and

[[Page 46163]]

cost-effectiveness for NOX control options such as SCR. At 
this time, we are finalizing a disapproval of ADEQ's finding that no RP 
controls for NOX at point sources are reasonable. However, 
we have not proposed any NOX controls for any point sources 
as a RP measure. We will consider the information submitted by the 
commenter as we work towards proposing a FIP.
    Comment: TEP agreed with EPA's conclusion that it is not reasonable 
to require additional SO2 controls on Springerville Units 1 
and 2. Two commenters (Earthjustice and NPS) disagreed with EPA's 
conclusion. TEP stated that Springerville Units 1 and 2 are equipped 
with dry FGD systems for SO2 control, which operate at 
greater than 90-percent control efficiency, and both systems were 
upgraded as recently as 2006 reducing the emission rate from these 
units to between 0.17 and 0.26 lb/MMBtu on an annual average basis. The 
commenter asserted that EPA's estimate of $17,000 to $22,000/ton to 
install additional controls is far beyond any reasonable threshold for 
cost-effectiveness, noting that EPA used an initial screening level of 
$5,000 per ton to gauge cost-effectiveness. The commenter expressed the 
belief that a cost per ton of pollutant removed below this screening 
level could very well be not cost-effective, and encouraged EPA to 
refrain from applying a generalized cost-effectiveness threshold. The 
commenter added that cost-effectiveness should be considered on a site-
specific basis and be weighed in reference to the other factors.
    NPS asserted that additional emission controls should be required 
at Springerville Units 1 and 2 in order for Arizona to achieve 
reasonable progress. While conceding that the RP analysis differs from 
the BART analysis, the commenter indicated that there is also 
substantial overlap between these analyses and it can be informative to 
consider relevant BART guidance and examples in conducting RP analyses. 
Accordingly, the commenter analyzed the cost-effectiveness and 
visibility benefits of potential additional SO2 and 
NOX controls for Springerville Units 1 and 2. Based on these 
analyses, the commenter argued that EPA should consider requiring the 
replacement of or upgrades to the existing scrubbers for SO2 
control and installation of an SCR system for NOX control.
    Earthjustice noted that Springerville is the second largest source 
of SO2 emissions in Arizona, and commented that it is 
premature for EPA to conclude that controls should not be required at 
this source before it knows what emissions reductions will be necessary 
to ensure reasonable progress. The commenter argued that EPA's 
assumption that wet FGD would reduce existing SO2 emissions 
from 0.21 lb/MMBtu at Unit 1 and 0.18 lb/MMBtu at Unit 2 down to 0.06 
lb/MMBtu at both units was overly conservative and that power plants 
across the nation have achieved 0.04 lb/MMBtu or lower SO2 
emission rates with wet FGD and upgrades to existing dry scrubbers. The 
commenter also argued that EPA's cost estimates were inflated by 
various factors, such as use of a 7-percent interest rate and a 20-year 
estimated life and amortization period. Based on these points, 
Earthjustice urged EPA to delay determining whether RP controls are 
warranted at Springerville Units 1 and 2 until after (1) EPA knows what 
emissions reductions will be necessary to achieve reasonable progress 
and maintain the glide path to the 2064 natural visibility goal, and 
(2) EPA obtains more accurate cost-effectiveness information for wet 
FGD at the units.
    Response: As noted in our response regarding Cholla Unit 1 above, 
we agree with NPS that the BART Guidelines can be helpful for 
estimating the cost of controls as part of an RP analysis.\148\ Among 
other things, the BART Guidelines recommend use of a baseline emissions 
rate that represents a realistic depiction of anticipated annual 
emissions, which generally may be determined from actual emissions from 
a baseline period.\149\ In this case, the baseline emissions rate for 
Springerville Units 1 and 2 should reflect use of the existing dry FGD 
systems. The average cost-effectiveness of a new dry FGD system based 
on the units' existing baselines is approximately $16,000/ton and 
$19,000/ton, which we do not consider cost-effective for reasonable 
progress. In addition, Earthjustice argued that we should have used a 
FGD emission rate of 0.04 lb/MMBtu (rather than 0.06 lb/MMBtu) in our 
calculations of cost-effectiveness, as this is an emission rate that 
has been achieved by power plants operating new wet FGD systems. While 
we acknowledge that emission rates more stringent than 0.06 lb/MMBtu 
have been achieved, use of a more stringent 0.04 lb/MMBtu emission rate 
would only reduce cost-effectiveness values to approximately $14,000/
ton.
---------------------------------------------------------------------------

    \148\ See, e.g., RP Guidance, page 5-1, ``For additional 
guidance on applying the cost of compliance factor to stationary 
sources, you may wish to consult the BART guidelines.''
    \149\ BART Guidelines, 40 CFR Part 51, Appendix Y, section 
IV.D.4.d.1.
---------------------------------------------------------------------------

    We also disagree with commenters' assertions that our use of a 7-
percent interest rate and 20-year lifetime have resulted in inflated or 
overestimated control costs. For cost analyses related to government 
regulations, an appropriate ``social'' interest (discount) rate should 
be used. The latest real interest rate for cost-effectiveness analyses 
published by the Office of Management and Budget (OMB) is 2.8 percent 
for a 20-year period (Revised January 2008). EPA calculated capital 
recoveries using 3-percent and 7-percent interest rates in determining 
cost-effectiveness for the Regulatory Impact Analysis (RIA) for the 
Guidelines for BART Determinations under the Regional Haze regulations. 
We consider our use of 7 percent over a 20-year period to be consistent 
within the context of Regional Haze regulations, and to result in a 
reasonable estimate of control costs.\150\
---------------------------------------------------------------------------

    \150\ Regulatory Impact Analysis for the Final Clean Air 
Visibility Rule or the Guidelines for Best Available Retrofit 
Technology (BART) Determinations Under the Regional Haze 
Regulations, EPA-0452/R-05-004, June 2005.
---------------------------------------------------------------------------

    Although the existing dry FGDs have been upgraded recently, the 
scope and precise nature of the upgrades is unclear. As a result, we 
agree with NPS's assertion that additional upgrades should be 
considered. Therefore, we have included dry FGD upgrades as a control 
option in our SO2 cost-effectiveness calculations.\151\ 
Based on these calculations, we estimate that upgrades to the existing 
dry FGDs would cost $6,000 to 10,000/ton and result in a total annual 
emissions reduction of approximately 1,200 tpy.\152\ Given the 
significant reductions in point source SO2 emissions 
achieved through ADEQ's BART determinations in this planning 
period,\153\ we find that it was reasonable for ADEQ not to require 
additional SO2 controls for Springerville Units 1 and 2 as a 
RP measure. However, such controls may be necessary in the next 
planning period to ensure continued progress toward eliminating 
anthropogenic visibility impairment.
---------------------------------------------------------------------------

    \151\ See Docket Item I.12, ``Springerville FGD costs (updated), 
a revised version of docket item F.10, Springerville FGD 
costs.xls''.
    \152\ Id.
    \153\ Arizona RH SIP, page 67, Table 8.1 (projecting 28.81 
percent reduction in annual point source SO2 emissions 
between 2002 and 2018); Arizona RH SIP Supplement, page 5, Table 8 
(showing reduction in annual point source SO2 emissions 
of 15,700 tpy between 2002 and 2008).
---------------------------------------------------------------------------

    With regard to NOX, we note that in our proposal of 
December 21, 2012, we did not propose RP controls on NOX for 
any point sources, but instead only proposed disapproval of the State's 
finding that it is not reasonable to require additional NOX 
controls. We acknowledge the information provided

[[Page 46164]]

by the commenter, and will examine it, along with similar information 
provided by other commenters on this issue, as we develop a proposed 
FIP.
    Comment: Two commenters, NPS and TEP, noted that Sundt Units 1-3 
are all fired with pipeline-quality natural gas and agreed with EPA 
that it is not reasonable to require more stringent SO2 
controls on this facility at this time.
    Response: We agree with these comments.
    Comment: NPS agreed that it is not reasonable to require additional 
SO2 controls on the Douglas Lime Plant at this time because 
emissions inventory data indicate that production at this plant 
essentially stopped during the recession. The commenter added that this 
plant should be considered for SO2 controls in future 
planning periods, as it may return to its previous levels of emissions.
    Response: We agree with this comment.
    Comment: NPS concurred with the proposal to disapprove Arizona's 
finding that it is not reasonable to require additional NOX 
controls on non-BART point sources. The commenter agreed that given the 
slow rate of visibility improvement on the worst days at all Class I 
areas in Arizona, a thorough analysis is required before concluding 
that nothing more can be done to improve visibility.
    In contrast, three other commenters (TEP, ADEQ and PCC) stated that 
EPA is not justified in its proposed disapproval of Arizona's finding 
that it is not reasonable to require additional NOX controls 
on non-BART point sources. TEP indicated that it is premature for EPA 
to disapprove the State's finding, based on the commenter's 
understanding that the State is interested in addressing EPA's concerns 
about the adequacy of the analyses in its SIP. This commenter asserted 
that EPA's proper course of action is to work with and support the 
State in developing the analysis required for the evaluation of 
additional NOX controls on non-BART point sources.
    PCC added that EPA cannot disapprove the State's RP determination 
for the Phoenix Cement Plant without first concluding that a four-
factor analysis under 40 CFR 51.308(d)(l)(i)(A) would have indicated 
that additional emissions controls at PCC are needed to improve 
visibility in the Sycamore Canyon Wilderness Area. The commenter stated 
that there is nothing in the proposal or rulemaking docket that 
indicates that EPA has found that the Phoenix Cement Plant contributes 
to visibility impairment in a Class I area, or that additional 
emissions controls at the Phoenix Cement Plant would improve visibility 
in a Class I area.
    Response: EPA acknowledges the support of NPS for our disapproval 
of the State's conclusion that it is not reasonable to require further 
NOX control on non-BART sources. We agree that the State did 
not provide sufficient analysis to justify that position. We also note 
that we have worked with ADEQ on various aspects of the Arizona RH SIP 
over the last several months. Based on the contents of the Arizona RH 
SIP Supplement, which ADEQ submitted in May 2013, we have approved more 
of the State's conclusions with respect to what sources are reasonable 
to control during this progress period.\154\ Unfortunately, as 
explained in section IV.B.3 of our May 20, 2013, proposal \155\ and 
later in this section, the State still has not provided sufficient 
analysis for EPA to approve its determination that no additional 
controls are required for sources of NOX.
---------------------------------------------------------------------------

    \154\ 78 FR 29292.
    \155\ 78 FR 29299-29300.
---------------------------------------------------------------------------

    Comment: PCC stated that EPA has shared an RP analysis concerning 
Phoenix Cement. The commenter asserted that this RP analysis has no 
legal bearing on the sufficiency of the Arizona RH SIP for 
NOX emissions from non-BART stationary sources. Nonetheless, 
the commenter provided various comments on the contents of this 
analysis
    Response: The draft analysis of potential controls at Phoenix 
Cement \156\ was conducted in preparation for a possible FIP action and 
it is not complete or final. We shared this analysis with PCC in order 
to give the company an opportunity to correct any errors or weak 
assumptions in the analysis. The analysis was not used as a basis for 
this action. Rather, EPA's disapproval of the State's conclusion with 
respect to further control on NOX point sources is based on 
our review of the SIP and supporting material submitted by ADEQ. EPA's 
analyses of potential controls on point sources of NOX in 
Arizona will be included in our upcoming FIP proposal. All of the 
supporting material for those analyses will be in the docket for that 
proposal and the public will have an opportunity to review and comment 
on our analysis and supporting documentation and data.
---------------------------------------------------------------------------

    \156\ See email from Colleen McKaughan, EPA to Verle Martz, Salt 
River Materials Group dated November 6, 2012 and attachments, Non 
EGU--RP--Ch5 (Phoenix Cement, CalPortland only).xls and WA5-12 Task 
9 Deliverable--RPAnalysis Report (CalPortland-Phoenix ONLY)--
final.docx.
---------------------------------------------------------------------------

    Comment: Two commenters (Clarkdale and Yavapai County) urged EPA to 
substantially reconsider its proposal, especially as it relates to RPG 
determinations involving non-BART sources like Phoenix Cement. While 
acknowledging that the proposal does not identify the precise impacts 
upon Phoenix Cement, the commenter stated that it does clearly indicate 
that emissions reductions from non-BART sources like PCC will be needed 
to achieve reasonable progress. The commenters expressed concern that 
the proposal could unnecessarily and negatively impact the local 
economy and jobs provided by PCC.
    Response: We appreciate the commenters' concerns about potential 
impacts on the local economy. However, the commenters appear to 
misunderstand the scope of this action. Today's action simply approves 
certain provisions of the Arizona RH SIP and disapproves certain other 
provisions. It does not impose controls upon any source. If EPA 
proposes any controls on PCC, it will be in a separate notice-and-
comment rulemaking.
    Comment: CalPortland stated that EPA's proposal treats 
SO2 and NOX point sources differently in its 
review of Arizona's RP analysis. The commenter noted that, while EPA 
concluded that Arizona's analysis is insufficient for both, for 
SO2 point sources EPA conducted a supplemental analysis and 
proposed to approve Arizona's conclusion based on that analysis. The 
commenter pointed out that for NOX point sources, EPA 
carried out no supplemental analysis, and EPA proposed to disapprove 
Arizona's determination. The commenter indicated that EPA made no 
attempt to explain why it proposed to treat NOX and 
SO2 sources differently.
    The commenter (CalPortland) asserted that on its face, this 
differential treatment is unreasonable and does not make sense in the 
context of the determination of RPGs. The commenter expressed the 
opinion that the original analysis conducted by Arizona is legally 
sufficient and should be approved.
    PCC similarly asserted that the absence of a four-factor analysis 
for non-BART point sources of NOX deprives the commenter and 
other non-BART point sources of NOX of their due process 
right to comment in an informed manner on the proposal.
    Response: EPA addresses the approvability of the State's RP 
analyses for point source NOX and SO2 in section 
IV.B.2 of this document. Given the inadequacy of the State's analyses, 
EPA

[[Page 46165]]

has undertaken supplemental analyses of potential additional 
NOX and SO2 controls for point sources to 
determine whether any such controls are reasonable. In the case of 
point sources of SO2, the relatively small number of sources 
and the fact that they were well controlled made it possible for EPA to 
do the analyses necessary to determine that no further controls are 
reasonable. EPA is conducting similar analyses for point sources of 
NOX. These analyses are more complex and EPA has therefore 
sought input from potentially affected sources in order to ensure that 
our analyses are accurate and complete.\157\ As a result, we have not 
yet concluded with the necessary analyses. We intend to complete our 
initial analyses prior to proposing the FIP that will address the 
disapprovals we are finalizing today.
---------------------------------------------------------------------------

    \157\ See email from Colleen McKaughan, EPA to Verle Martz, Salt 
River Materials Group dated November 6, 2012 and attachments; email 
from Colleen McKaughan, EPA to Erik Bakken and Jeff Yockey, Tuscon 
Electric Power dated November 6, 2012, and email from Colleen 
McKaughan, EPA to Jay Grady, California Portland Cement dated 
November 9, 2012.
---------------------------------------------------------------------------

    Comment: One commenter (CalPortland) argued that Arizona reasonably 
determined that additional controls are not necessary for the 
commenter's Rillito Cement Plant at this time. According to the 
commenter, EPA stated in the proposal that there is no technical 
documentation to support Arizona's conclusion that Rillito does not 
impair visibility, and that EPA implied that a thorough analysis was 
not conducted for NOX point sources such as Rillito. The 
commenter asserted that there is an ample record that contradicts the 
implications that Arizona's analysis was not legally sufficient under 
40 CFR 51.308(d)(l) for NOX sources near Saguaro National 
Park.
    CalPortland also speculated that perhaps EPA is concerned that 
Arizona's RH SIP does not contain an explicit, source-specific four-
factor analysis for Rillito. The commenter stated that such a concern 
would be unfounded because the applicable guidelines do not require a 
full four-factor analysis for every potential source (citing Guidance 
for Setting Reasonable Progress Goals under the Regional Haze Program, 
Section 3). Based on the fact that Arizona reasonably determined that 
Rillito did not contribute to visibility impairment, the commenter 
stated that there was no requirement to conduct an explicit four-factor 
analysis.
    The commenter (CalPortland) further asserted that, even if a four-
factor analysis were required for the Rillito plant, it would be 
unreasonable to disapprove the SIP on this basis because the 
significant analysis contained in Arizona's RH SIP fits within the 
framework of a four-factor analysis and is consistent with the analysis 
conducted by New Mexico and approved by EPA. According to the 
commenter, New Mexico's reasonable progress demonstration relied in 
part on WRAP's Supplementary Information for Four Factor Analyses by 
WRAP States.
    Response: In our December 12, 2012, proposed action we stated that 
``with respect to cement kilns, the SIP contends that the Rillito 
Cement Plant does not `appreciably diminish or impair visibility', but 
the plan does not provide technical documentation of that assertion.'' 
\158\ In fact, the quoted sentence in the 2011 RH SIP referred to the 
Phoenix Cement Plant, not the Rillito Cement Plant.\159\ With respect 
to the Rillito Plant, the Arizona Regional Haze SIP does provide a 
visibility analysis for kiln 4, but not for kilns 1-3.\160\ Thus, there 
is no information in the SIP regarding the visibility impacts of the 
entire Rillito Plant.
---------------------------------------------------------------------------

    \158\ 77 FR 75730.
    \159\ See 2011 Arizona RH SIP at 165; 2013 Arizona RH SIP 
Supplement at 52.
    \160\ Id.
---------------------------------------------------------------------------

    Moreover, the fact that nitrate-driven visibility impairment is 
projected to decrease at Class I areas such as Saguaro National Park 
does not remove the requirement to perform a complete RP analysis. 
Given the State's decision to focus its RP analysis on point and area 
sources of NOX and SO2, the Rillito Cement 
plant's high NOX emission rates and proximity to Class I 
areas make it a good candidate for a source-specific four factor 
analysis. The State failed to either conduct such an analysis or 
adequately explain why it was not needed.
7. EPA's Evaluation of Arizona's Long-Term Strategy
    Comment: One commenter (Earthjustice) expressed support for EPA's 
proposal to disapprove portions of the LTS described in the 2011 RH 
SIP. Another commenter (CalPortland) opposed the proposed disapproval.
    The opposing commenter (CalPortland) asserted that the 2011 RH SIP 
complies with the Act's LTS requirements. The commenter stated that 
EPA's conclusion that the State's BART and reasonable progress 
determinations are insufficient is not a valid reason to disapprove the 
LTS. Citing 40 CFR 51.308(d)(3), the commenter contended that EPA does 
not propose to find, nor can it, that the State's LTS is insufficient 
to meet the RPGs established by the State.
    This commenter (CalPortland) also asserted that the proposed 
disapproval was incorrect when it indicated that the State's LTS does 
not include all measures needed to achieve its allotment of emission 
reductions agreed upon through the WRAP process. The commenter stated 
that page 178 of the 2011 RH SIP indicates that Arizona and neighboring 
states agreed that the implementation of BART and other existing 
measures in state regional haze plans were sufficient. According to the 
commenter, the states that participated in the WRAP process are in the 
best position to determine whether each other's plans are sufficient, 
and they agreed that Arizona's SIP is sufficient.
    Response: As an initial matter, we would like to clarify the scope 
of our proposed partial disapproval of Arizona's LTS. We did not 
propose to disapprove the LTS as whole. Rather, we proposed to 
disapprove only those portions of the LTS that rely on other elements 
of the SIP that we have disapproved or proposed to disapprove. 
Specifically, we proposed to find that the LTS does not meet the 
requirements of 40 CFR 51.308(d)(3)(ii), (v)(C) and (v)(F). As we 
explained in the proposal, pursuant to 40 CFR 51.308(d)(3)(ii), Arizona 
is required to include in its LTS all measures needed to achieve its 
allotment of emission reductions agreed upon through the WRAP process. 
The commenter is correct that the SIP indicates that Arizona and 
neighboring states in the WRAP agreed that ``implementation of BART and 
other existing measures in state regional haze plans were sufficient to 
address interstate impacts.'' \161\ However, because we have 
disapproved portions of Arizona's BART determinations, the reductions 
that Arizona agreed to through the WRAP process are not all SIP-
approved and therefore cannot be relied upon for purposes of the LTS. 
In addition, because Arizona's BART determinations lack the necessary 
compliance dates and requirements for operation and maintenance of 
control equipment and monitoring, recordkeeping and reporting, the SIP 
does not ensure that the reductions attributed to these BART 
determinations will be realized. Therefore, the SIP does not include 
all measures needed to achieve Arizona's apportionment of emission 
reduction obligations agreed upon through the WRAP process.
---------------------------------------------------------------------------

    \161\ Arizona RH SIP, page 178.
---------------------------------------------------------------------------

    The other two elements of Arizona's LTS that we proposed to 
disapprove pertain to consideration of emissions

[[Page 46166]]

limitations and schedules for compliance to achieve the RPGs and the 
enforceability of emissions limitations and control measures. Since the 
SIP lacks measures to ensure the enforceability of its BART 
determinations, and contains no other emissions limitations, schedules 
for compliance or other control measures, these two elements of the LTS 
are also not approvable. Therefore, we are finalizing our proposed 
disapproval of the Arizona RH SIP with respect to the requirements of 
40 CFR 51.308(d)(3)(ii), (d)(3)(v)(C) and (d)(3)(v)(F).
8. EPA's Evaluation of Arizona's Provisions for Interstate Transport of 
Pollutants
    Comment: EPA received adverse comments from CalPortland and CEI on 
the portion of our December 21, 2012, proposal that relates to the CAA 
requirement that SIPs contain adequate provisions to prohibit emissions 
that will interfere with other states' required measures to protect 
visibility per CAA section 110(a)(2)(D)(i)(II). We refer to this 
requirement herein as the interstate transport visibility requirement.
    CalPortland asserted that, even if EPA found Arizona's BART and RP 
analyses to be insufficient, such a determination would not be a lawful 
reason to find that the Arizona SIP submittals do not comply with the 
interstate transport visibility requirement. The commenter contended 
that EPA did not propose that the Arizona SIP interferes with measures 
in another state's SIP to protect visibility.
    CEI argued that EPA failed to articulate how Arizona interferes 
with visibility protection measures required by the CAA of downwind 
states. The commenter interpreted section XI (``EPA's Evaluation of 
Arizona's Provisions for Interstate Transport of Pollutants'') of our 
December 21, 2012, proposal to mean that any emission of haze 
pollutants above the levels assumed by the WRAP modeling constituted 
interference with downwind attainment. The commenter asserted that this 
approach violates the proportionality ``requirement'' of the D.C. 
Circuit Court's decision in EME Homer City Generation L.P. v. EPA (EME 
Homer City) \162\ because it does not take into account the commitment 
of other WRAP states to reduce the emission of haze pollutants beyond 
the emission levels assumed by the WRAP modeling.
---------------------------------------------------------------------------

    \162\ EME Homer City Generation, L.P. v. EPA., 696 F.3d 7 (D.C. 
Cir. 2012).
---------------------------------------------------------------------------

    Response: The commenters appear to misunderstand the relevant 
statutory requirement. Section 110(a)(2)(D)(i)(II) of the CAA requires 
that each SIP ``contain adequate provisions prohibiting . . . any 
source or other type of emissions activity within the State from 
emitting any air pollutant in amounts which will. . . interfere with 
measures required to be included in [other states' SIPs]. . . to 
protect visibility.'' \163\ As explained in our proposal, Arizona 
relied on its RH SIP for purposes of satisfying this requirement.\164\ 
However, EPA has disapproved certain provisions of the SIP and is today 
disapproving several other aspects of the submission.\165\ Therefore, 
the SIP as a whole will not be incorporated into the applicable SIP. 
Since Arizona has not provided any other analysis or explanation of how 
the Arizona SIP fulfills the requirement of 110(a)(2)(D)(i)(II), it 
follows that the Arizona SIP does not contain adequate provisions to 
prohibit emissions that would interfere with other states' visibility 
protection measures.
---------------------------------------------------------------------------

    \163\ 42 U.S.C. 7410(a)(2)(D)(i)(II) (emphasis added). This 
interstate visibility transport requirement is often referred to as 
``prong 4'' of the interstate transport requirements of section 
110(a)(2)(D)(i).
    \164\ See 77 FR 75735.
    \165\ EPA has previously disapproved Arizona's determinations 
for NOX emission limits at most of the units at Apache, 
Cholla, and Coronado power plants (77 FR 72512, December 5, 2012), 
and, in this final action, is disapproving several aspects of 
Arizona's other BART and reasonable progress analyses, and related 
deficiencies in Arizona's long-term strategy. Thus, the Arizona SIP 
lacks enforceable emissions limits to achieve the RPGs for Class I 
areas affected by emissions from Arizona, including those in other 
states (as noted in our proposal rule), and we are disapproving the 
State's SIP submittals for the interstate transport visibility 
requirement for the 1997 8-hour ozone, 1997 PM2.5, and 
2006 PM2.5 NAAQS. 77 FR 75704 at 75735, December 21, 
2012.
---------------------------------------------------------------------------

    This analysis is not inconsistent with the EME Homer City decision. 
EME Homer City concerned the Cross State Air Pollution Rule,\166\ which 
addressed only section 110(a)(2)(D)(i)(I) of the CAA (often referred to 
as prongs 1 and 2 of the interstate transport requirements). This 
decision does not apply to the interstate transport visibility 
requirement (often referred to as prong 4). Since the interstate 
transport portion of our December 21, 2012, proposed rule addressed 
only the visibility requirement for Arizona, the EME Homer City 
decision does not apply to this action.
---------------------------------------------------------------------------

    \166\ 76 FR 48208, August 8, 2011.
---------------------------------------------------------------------------

    Furthermore, even if the concept of ``proportionality'' set out in 
the EME Homer City decision were to apply to the visibility prong of 
the transport requirements, we disagree that our action here is 
contrary to that concept. We are not specifying a particular amount of 
emissions reductions that Arizona must achieve to meet the requirement 
of prong 4, nor are we making an affirmative determination that 
emissions from Arizona are interfering with other states' visibility 
protection measures. Rather, we are finding that the Arizona SIP does 
not contain adequate provisions to prohibit emissions that would 
interfere with other states' visibility protection measures. In 
particular, Arizona asserted that its SIP would achieve the emissions 
reductions necessary to meet the requirement of prong 4. However, due 
to our partial disapproval of the SIP, the Arizona SIP will not include 
many of these reductions. Accordingly, the SIP does not contain the 
emissions reductions that Arizona itself determined to be necessary to 
meet the interstate visibility transport requirement.
    Finally, we note that ADEQ asserts in section 11.8 (``Emission 
Reductions with Respect to Out-of-State Class I Areas'') of the Arizona 
RH SIP Supplement that its revised demonstration showing reasonable 
progress at Arizona's Class I areas is adequate to achieve the 
necessary reductions in visibility impairment in Class I areas in 
neighboring states. However, the vast majority of the deficiencies in 
the Arizona RH SIP, which led to our proposed disapproval for the 
interstate transport visibility requirement, remain. Accordingly, we 
are finalizing our disapproval of the State's SIP revisions for the 
interstate transport visibility requirement for the 1997 8-hour ozone, 
1997 PM2.5, and 2006 PM2.5 NAAQS.
9. Statutory and Executive Order Reviews
    Comment: PCC noted that it is a division of the government of the 
Salt River Pima-Maricopa Indian Community (SRPMIC), and asserted that 
SRPMIC relies substantially on the revenues of PCC to meet the safety, 
health and educational needs of its members. The commenter noted that, 
while EPA's proposal refers to the ``Rillito Cement Plant'' at 77 FR 
75730 in its discussion of the proposed disapproval of the State's 
finding that it is not reasonable to require additional NOX 
controls on non-BART sources; the 2011 RH SIP actually refers to the 
Phoenix Cement Plant in this context, not the Rillito Cement Plant. The 
commenter concluded that the proposed disapproval is based materially 
on the SIP's treatment of the Phoenix Cement Plant and, therefore, 
directly affects the commenter.
    PCC argued that EPA did not satisfy tribal consultation 
requirements that apply to the proposed disapproval of the

[[Page 46167]]

portion of the State's RH SIP that addresses the Phoenix Cement Plant. 
The commenter indicated that EPA was incorrect in stating in the 
preamble that the proposal does not have tribal implications, as 
specified in Executive Order 13175, because it will not impose 
substantial direct costs on tribal governments. The commenter stated 
that the proposed disapproval creates the basis for a FIP that could 
impose on SRPMIC costly requirements to install additional 
NOX controls at the Phoenix Cement Plant and, therefore, 
does have significant tribal implications warranting consultation with 
the tribe early in the process. The commenter asserted that if SRPMIC 
had been consulted, the tribe would have provided to EPA information on 
the real costs to SRPMIC of installing NOX controls at the 
Phoenix Cement Plant and the true measure of visibility benefits that 
would result. The commenter added that this information would have 
informed EPA's decision on whether to propose to disapprove the State's 
finding that it is not reasonable to require additional NOX 
controls on non-BART point sources.
    Response: The commenter is correct that the sentence in the Arizona 
RH Plan quoted in our proposal concerns the Phoenix Cement Plant, not 
the Rillito Cement Plant. However, we do not agree that our action on 
the Arizona RH SIP directly impacts the Tribe. Today's action simply 
approves certain provisions of the Arizona RH SIP and disapproves 
certain other provisions, based on an evaluation of their compliance 
with the applicable statutory and regulatory requirements.
    Under Executive Order 13175 the term ```[p]olicies that have tribal 
implications' refers to (among other things) ``regulations . . . and 
other policy statements or actions that have substantial direct effects 
on one or more Indian tribes . . .'' \167\ EPA's action on the Arizona 
RH SIP has no such substantial direct effects. Our statement that 
``this action creates the basis for future action which could impact a 
tribally-owned source'' was intended as an acknowledgment of the 
possible tribal implications of a potential future Regional Haze FIP 
for Arizona. We do not agree that ``[b]ut for the proposed SIP 
disapproval in relation to PCC, there could lawfully be no FIP proposal 
in relation to PCC.'' As explained elsewhere, EPA has a pre-existing 
FIP obligation with respect to the regional haze requirements for 
Arizona, resulting from our January 2009 finding of failure to submit. 
However, even if the SIP disapproval were a prerequisite to any FIP 
proposal in relation to the Phoenix Cement Plant, it is the future 
notice-and-comment rulemaking process for that FIP that would be the 
appropriate subject of consultation. Accordingly, EPA Region 9 has 
offered SRMPIC opportunities for meetings and formal consultation in 
anticipation of such a possible FIP.\168\
---------------------------------------------------------------------------

    \167\ EO 13175: Consultation and Coordination with Indian Tribal 
Governments, 65 FR 67249, section 1(a) (Nov. 9, 2000).
    \168\ See Memorandum to File from Colleen McKaughan regarding 
EPA Region 9 communications with SRPMIC (May 8, 2013).
---------------------------------------------------------------------------

    Finally, we note that we sent our initial analysis of potential 
controls at the Phoenix Cement Plant to PCC on November 6, 2012.\169\ 
PCC provided feedback on this analysis as part of its comments on our 
initial proposal and in materials submitted to ADEQ and EPA.\170\ ADEQ 
incorporated this feedback into its RH SIP Supplement.\171\ EPA will 
also take this information into account in any future analyses 
regarding the Phoenix Cement Plant.
---------------------------------------------------------------------------

    \169\ Email from Colleen McKaughan, EPA, to Verle Martz, PCC 
(November 6, 2012).
    \170\ Letter from Verle Martz, PCC, to Gregory Nudd, EPA, (March 
6, 2013), Attachment 3; Arizona RH SIP Supplement, Attachments; 
Email from Brett Lindsay, PCC, to Balaji Vaidyanathan, ADEQ (March 
21, 2013).
    \171\ See Arizona RH SIP Supplement, page 52.
---------------------------------------------------------------------------

10. Other Comments
    Comment: AMA detailed the importance of the mining industry to the 
economy of Arizona and noted that copper has become one of the most 
important metals in the generation and transmission of renewable energy 
and in helping to drive down auto emissions through its application in 
hybrid and electrical vehicles. The commenter expressed support for the 
comments submitted by FMMI and ASARCO.
    Response: We acknowledge the comment. We have responded to specific 
comments from FMMI and ASARCO in the preceding sections.

B. Responses to Comments on the Proposal of May 20, 2013

1. State and EPA Actions on Regional Haze
    Comment: ADEQ summarized the contents of the Arizona RH SIP 
Supplement and expressed appreciation for the opportunity to work with 
EPA on the Supplement, despite the fact that EPA is not proposing to 
approve all of the supplemental analyses.
    Response: We acknowledge the comment and appreciate ADEQ's efforts 
to revise the Arizona RH SIP. We look forward to working with ADEQ on 
future revisions to the Arizona RH SIP.
    Comment: ADEQ commented that states have the primary role in 
implementing the regional haze program and asserted that, ``EPA has 
proposed disapproval of elements of the Arizona Regional Haze Plan on 
the basis of considerations that find no basis in the CAA or rule and 
that in some cases violate the RHR.''
    Response: As explained in our response to similar comments on our 
December 21, 2012, proposal in section V.A.1.a, we do not agree that we 
have exceeded our authority under the CAA and the RHR in any of our 
actions on the Arizona RH SIP. The commenter did not specify which 
aspects of our May 20, 2013, proposal it believes are inconsistent with 
the CAA and RHR. To the extent the commenter is referring to other 
comments regarding specific elements of the Supplement, our responses 
are included below.
    Comment: ADEQ reiterated its objection to the bifurcation of EPA's 
action on the Arizona RH SIP into two different phases, arguing that 
this created an unfair burden on the State and is forbidden by Section 
110(k)(3) of the Clean Air Act.
    Response: Please see our response to a nearly identical comment in 
section IV.A.1.d above.
2. EPA's Evaluation of Arizona's Reasonable Progress Analysis
a. Reasonable Progress Analysis for Coarse Mass and Fine Soil
    Comment: Earthjustice argued that EPA should disapprove Arizona's 
determination that no reductions in coarse mass and fine soil emissions 
are necessary to make reasonable progress for this planning period. The 
commenter asserted that, ``[u]ntil EPA conducts modeling demonstrating 
that its regional haze plan will put Arizona's Class I areas on the 
glide path to achieving natural visibility by 2064, EPA should not 
limit opportunities to require additional emissions reductions from 
sources of coarse mass and fine soil emissions.''
    Response: We do not agree with this comment. As explained in our 
May 20, 2013, proposal, the State's monitoring analysis and our 
supplemental analysis of sources of coarse mass and fine soil showed no 
clear relationship between any particular source category of these 
pollutants and observed visibility impairment at the State's Class I 
areas.\172\ The commenter has not provided any data or analysis to 
rebut this finding. Therefore, we are approving the State's decision to

[[Page 46168]]

exclude coarse mass and fine soils from its four-factor reasonable 
progress analysis for the first planning period.
---------------------------------------------------------------------------

    \172\ See 77 FR 29297-29298.
---------------------------------------------------------------------------

    We also disagree with the commenter's suggestion that meeting the 
URP is a requirement of the RHR. The URP is not a presumptive target 
and a state or EPA may set RPGs that provide for less progress than the 
URP if those RPGs are demonstrated to be reasonable (and achievement of 
the URP to be unreasonable) based upon an analysis of the four RP 
factors.\173\ Therefore, we do not agree that we must conduct modeling 
to demonstrate achievement of the URP prior to approving any portion of 
the State's RP analysis.
---------------------------------------------------------------------------

    \173\ See 64 FR 35730-35731.
---------------------------------------------------------------------------

b. Visibility Monitoring Trend Analysis
    Comment: Earthjustice expressed support for EPA's proposed 
disapproval of portions of Arizona's revised RP analysis. In 
particular, Earthjustice agreed with EPA's determination that Arizona's 
monitoring trend analysis was insufficient to establish that no 
additional controls were reasonable for this planning period.
    Response: We acknowledge Earthjustice's support on this issue.
    Comment: ADEQ noted that its monitoring trend analysis is not 
intended as a substitute for a four-factor RP analysis. Rather, the 
analysis was intended to support ADEQ's position that its categorical 
four-factor analysis is the appropriate approach. ADEQ noted that it 
intends to develop guidance for conducting a comprehensive analysis for 
the next planning period.
    Response: EPA notes ADEQ's clarification regarding the intent of 
its monitoring trend analysis. The RHR requires a complete analysis for 
every planning period. The approach that ADEQ used in this planning 
period was incomplete in that ADEQ did not evaluate the reasonableness 
of controls for the categories of sources that it identified as 
contributing to visibility impairment.
    Comment: Quoting EPA's RP Guidance, ADEQ asserted that, in 
proposing to disapprove portions of Arizona's RP analysis, EPA had not 
recognized the ``wide latitude'' and ``considerable flexibility'' that 
the CAA and RHR provide states with respect to RP analyses. ADEQ noted 
that EPA found that a number of the elements of ADEQ's RP analysis 
lacked ``adequate'' support or included ``insufficient'' information, 
but that EPA had not identified any requirement of the CAA and RHR that 
the Arizona RH SIP violated. ADEQ added that the monitoring trend 
analysis in the Supplement indicates that further progress has been 
made than projected in ADEQ's 2011 RH SIP and that existing source 
controls have resulted in improvement in visibility or maintenance of 
current trends. ADEQ noted that it plans to develop guidance for 
conducting a comprehensive four-factor analysis of non-BART source 
categories and individual sources for the next planning period.
    Response: Please see our response to a similar comment from ADEQ on 
our December 21, 2012, proposal, in section IV.A.6.b above. With regard 
to the monitoring trend analysis included in the Supplement, as 
explained in section IV.B.2 of our May 20, 2013, proposal, this 
analysis cannot substitute for the four-factor analysis required by the 
RHR.\174\ In addition, while the Supplement provides helpful 
information about trends in monitored visibility impairment between the 
baseline period of 2000-2004 and the following five-year period of 
2005-2009, it does not provide any analysis that indicates that these 
trends will continue through 2018.
---------------------------------------------------------------------------

    \174\ 78 FR 29298-29299.
---------------------------------------------------------------------------

c. Point Sources of NOX
    Comment: PCC reiterated its assertion that EPA lacks authority to 
disapprove the Arizona RH SIP with regard to non-BART sources of 
NOX because the SIP was previously deemed complete by 
operation of law.
    Response: As explained in section IV.A.1 above, completeness 
findings under CAA section 110(k)(1)(B) deal with administrative and 
technical criteria and do not remove our authority to review SIPs for 
compliance with the substantive requirements of the CAA and 40 CFR part 
51. Our evaluation of the Arizona RH SIP in relation to these 
substantive criteria is set out in our proposals and elsewhere in this 
preamble.
    Comment: TEP disagreed with what it characterized as EPA's 
assessment that ADEQ had ``failed to submit sufficient evidence to 
demonstrate that it is achieving its Reasonable Progress Goals for this 
planning period.'' TEP asserted that the State was not required to 
conduct a four-factor analysis and that by proposing to disapprove the 
State's RP analysis, EPA was not fully considering the flexibility that 
states have in conducting such analyses. TEP noted that the monitoring 
trend analysis supplied by the State demonstrates that actual progress 
in reducing visibility impairment exceeds the projected improvement in 
the original 2011 RH SIP. TEP concluded that ``EPA should have 
concluded that ADEQ has met all the elements required to demonstrate 
RPG during this progress period.''
    Response: We do not agree with this comment. Contrary to TEP's 
suggestion, the question of whether the State's Class I areas are 
likely to meet the State's chosen RPGs is not relevant to our 
evaluation of the Arizona RH SIP. This type of analysis is a required 
component of regional haze progress report SIPs, which are due five 
years after submittal of the State's initial RH SIP.\175\ The Arizona 
RH SIP Supplement, however, is not a progress report SIP, but a 
revision to the State's 2011 RH SIP, which is subject to the 
requirements of 40 CFR 51.308(d) and (e). Among these is the 
requirement to demonstrate that the State's RPGs are reasonable, based 
on an analysis of the four RP factors.\176\ In this case, Arizona 
identified point sources of NOX as contributing to 
visibility impairment, but did not complete a four-factor analysis for 
most NOX point sources or source categories, because it 
deemed the analysis to be too resource intensive.\177\ Therefore, the 
State did not fulfill the requirements of 40 CFR 51.308(d)(1)(i)(A) and 
(ii) to demonstrate that its RPGs are reasonable based on an analysis 
of the four RP factors.
---------------------------------------------------------------------------

    \175\ See 40 CFR 51.308(g) and (h).
    \176\ 40 CFR 51.308(d)(1)(i)(A) and (ii).
    \177\ See Section 11.3.3 of the Supplement, pages 23, 24 and 25.
---------------------------------------------------------------------------

    Comment: Citing EPA's RP Guidance, CalPortland asserted that 
``[s]ources that contribute to visibility impairment at a Class I area 
must undergo a four-factor analysis. Sources that do not contribute are 
not required to undergo such analysis.'' CalPortland argued that in 
this case, Arizona's decision not to conduct a four-factor RP analysis 
for the Rillito Cement Plant was lawful and reasonable. The commenter 
noted that visibility modeling performed by the WRAP indicated that the 
baseline visibility impact of emissions from Kiln 4 at the Rillito 
Cement Plant was less than 0.5 dv and that Kiln 4 therefore not 
subject-to-BART. Quoting Arizona's RH SIP Supplement, CalPortland 
asserted that ADEQ reasonably concluded that, given the lack of 
visibility impacts from Kiln 4, no RP analysis for this unit was needed 
and that any other conclusion would render the subject-to-BART exercise 
meaningless. CalPortland further commented that ADEQ's decision to 
defer consideration of Kilns 1-3 is reasonable and consistent with 40 
CFR 51.308, given that the three kilns have been in care and 
maintenance mode since 2008. Finally, CalPortland

[[Page 46169]]

asserted that Arizona's monitoring trend analysis for Saguaro National 
Park supports ADEQ's decision not to conduct a four-factor analysis for 
the Rillito Cement Plant.
    Response: We do not agree with this comment. CalPortland has 
mischaracterized the contents of the RHR, EPA's RP Guidance, Arizona's 
RP analysis, and EPA's evaluation of that analysis. The RHR provides 
that, in determining whether Arizona's RPGs provide for reasonable 
progress towards natural visibility conditions, we must evaluate the 
State's demonstration ``that the rate of progress for the 
implementation plan to attain natural conditions by 2064 is not 
reasonable; and that the progress goal adopted by the State is 
reasonable.'' \178\ This demonstration, in turn, must be based on an 
analysis of the four RP factors.\179\ Contrary to the commenter's 
assertion, neither the RHR nor EPA's RP Guidance provides that a 
determination that an individual source ``contributes'' to visibility 
impairment is a prerequisite to conducting a four-factor analysis for 
that source. Rather, the RP Guidance recommends that, prior to 
conducting source- or category-specific four-factor analyses, states 
should first identify key pollutants and source categories that are 
contributing to visibility impairment at the Class I area.\180\
---------------------------------------------------------------------------

    \178\ 40 CFR 51.308(d)(1)(ii) and (iii).
    \179\ 40 CFR 51.308(d)(1)(i) and (ii).
    \180\ RP Guidance page 3-1 (emphasis added).
---------------------------------------------------------------------------

    In this instance, ADEQ identified NOX and SO2 
as key pollutants and internal combustion engines and turbines, 
boilers, asphalt plants, lime plants, Portland cement plants, primary 
copper smelters, and nitric acid plants as key source categories. 
However, ADEQ did not conduct source-specific four-factor analyses for 
any sources in these categories (except for the Phoenix Cement Plant) 
and conducted only a cursory four-factor analysis for two source 
categories.\181\ In other words, ADEQ did not conduct four-factor 
analyses for the majority of sources and categories that it identified 
as contributing to visibility impairment at the State's Class I areas. 
In the absence of such analysis, we find that ADEQ has not demonstrated 
that achievement of the URP at its Class I areas is unreasonable and 
that ADEQ's RPGs are reasonable.\182\ As explained in section IV.B.2 of 
our May 20, 2013, proposal and section IV.B.3 above, the monitoring 
trend analysis included in the Supplement cannot substitute for the 
four-factor analysis required by the RHR. Therefore, we are finalizing 
our disapproval of ADEQ's determination that no additional controls for 
point sources of NOX are reasonable.
---------------------------------------------------------------------------

    \181\ See Arizona RH SIP section 11.3.3 (RH Supplement pages 48-
54).
    \182\ As explained elsewhere in this rule, we have found, based 
on additional analyses performed by ADEQ and ourselves, we are 
approving other portions of the State's RP analysis.
---------------------------------------------------------------------------

    This disapproval is based on the inadequacy of ADEQ's overall 
analysis for point sources of NOX and does not pertain to 
the Rillito Cement Plant specifically. Nonetheless, we note that Kiln 
4's modeled visibility impact at the most affected Class I area was 
0.48 dv. On this basis, Arizona concluded that ``the modeling has shown 
Kiln 4 is not a contributor to visibility impairment and as such, 
should be excluded from the requirement for a 4-factor analysis.'' 
\183\ However, while ADEQ set a contribution threshold of 0.5 dv for 
BART sources, it set no such threshold for its RP sources, nor did it 
explain why a visibility impact of 0.48 dv from a single emissions unit 
is too small to warrant consideration of potential controls. 
Accordingly, we do not agree that ADEQ reasonably concluded that no 
four-factor analysis for Kiln 4 was needed.
---------------------------------------------------------------------------

    \183\ Arizona RH SIP section 11.3.3 (page 52 of the RH 
Supplement).
---------------------------------------------------------------------------

    Comment: CalPortland commented that EPA's May 20, 2013, proposal 
overlooked new information provided in the Supplement. In particular, 
CalPortland asserted that our proposal failed to evaluate additional 
explanation and analysis regarding the Rillito Cement Plant in Section 
11.3.3.5 of the Supplement. The commenter also alleged that neither of 
EPA's proposals provided notice or an explanation of EPA's proposed 
decision to disapprove Arizona's RP analysis for the Rillito Cement 
Plant.
    Response: We do not agree with the commenter's suggestion that we 
are required to evaluate and take action on Arizona's discussion of the 
Rillito Cement Plant separately from the remainder of the State's RP 
analysis for point sources of NOX. The 2011 RH SIP contained 
a single paragraph setting out ADEQ's rationale for not conducting a 
four-factor analysis for any of the four kilns at the Rillito Cement 
Plant, which was included as part of the overall assessment of non-BART 
point sources of NOX and SO2.\184\ The Supplement 
contained the following two additional sentences concerning the Rillito 
Cement Plant:
---------------------------------------------------------------------------

    \184\ 2011 RH SIP page 165.

    Pursuant to EPA guidance for setting RP goals, determining the 
sources that contribute to visibility impairment in a Class I area 
is a pre-requisite to conducting a 4-factor analysis. From 
perspective, the modeling has shown Kiln 4 is not a contributor to 
visibility impairment and as such, should be excluded from the 
requirement for a 4-factor analysis.\185\
---------------------------------------------------------------------------

    \185\ Supplement page 51-52.

As explained in the preceding response, we find that this rationale is 
insufficient to support ADEQ's conclusion that no further analysis of 
controls at the Rillito Cement Plant is needed. In particular, ADEQ 
based its determination not to consider controls on Kiln 4 on the 
incorrect premise that an individual unit must have a baseline impact 
above 0.5 dv in order to be considered for RP controls.
    Comment: CalPortland noted that Kilns 1-3 at the Rillito Cement 
Plant had been shut down since 2008 due to economic conditions as had 
the Douglas Lime Plant. CalPortland noted that EPA found that it wasn't 
reasonable to require SO2 controls for the Douglas Lime 
Plant at this time, given that the plant had not been operating. 
CalPortland asserted that because EPA did not make a similar finding 
about NOX at CalPortland's facility, it was treated 
differently than the Douglas Lime Plant. While contending that such an 
analysis is not necessary for EPA to approve Arizona's findings, 
CalPortland also included a four-factor analysis for Kilns 1-3 and for 
Kiln 4.
    Response: EPA's analysis regarding the Douglas Lime Plant was part 
of a larger assessment of SO2 point sources. At the time, 
EPA did not have sufficient data to conduct a similar assessment of 
NOX point sources. As a result, we were not able to 
determine whether it was reasonable to control any point sources of 
NOX in Arizona in order to ensure reasonable progress. 
Because Arizona did not conduct an adequate analysis to support its 
conclusions on this subject, we are finalizing our disapproval of that 
aspect of the Arizona RH SIP. We will address this disapproval in our 
upcoming FIP proposal. We will consider the economic shutdown of Kilns 
1-3 and the information provided in the four-factor analyses for Kilns 
1-3 and Kiln 4 as we develop our proposed FIP. Because these analyses 
were not submitted as part of the Arizona RH SIP, we are not acting on 
them at this time.
    Comment: ADEQ provided additional information regarding its 
decision not to conduct a source-specific RP analysis for the 
CalPortland Rillito Cement Plant. ADEQ used modeling conducted by the 
WRAP demonstrating that Kiln 4 did not contribute to visibility 
impairment at nearby Class I areas. ADEQ also said that Kilns 1-3 had 
been in maintenance

[[Page 46170]]

mode since 2008. ADEQ further noted that visibility is improving more 
quickly than expected at the Class I area closest to the Rillito Cement 
Plant. ADEQ also noted that CalPortland had performed a source-specific 
RP analysis, but submitted it after ADEQ had submitted the Arizona RH 
SIP Supplement. ADEQ explained that it has reviewed this analysis and 
believes it supports ADEQ's position not to require additional controls 
on the Rillito Cement Plant at this time.
    Response: Because the source-specific RP analysis was not submitted 
as part of the Arizona RH SIP Supplement and was not made available for 
public review and comment, we are not considering it under this action. 
However, EPA will consider that analysis and other information 
presented by ADEQ in our upcoming FIP.
    Comment: Earthjustice agreed with EPA's proposal to disapprove the 
State's RP control determination for the Phoenix Cement Plant.
    Response: We acknowledge the commenter's support.
    Comment: ADEQ and PCC disagreed with EPA's assessment of the four-
factor analysis of the Phoenix Cement Plant included in the Supplement. 
In particular, PCC objected to EPA's reliance on the RP Guidance, BART 
Guidelines, and Control Cost Manual in its evaluation of the State's 
analysis because these are non-binding guidance documents. ADEQ added 
that it had ``reviewed the cost analysis provided by PCC and found it 
to be [an] acceptable and appropriate substitute for the Cost Control 
Manual.'' ADEQ further asserted that ``EPA does not justify its cost 
analysis over the site-specific costs submitted by the source'' and 
that ``[t]he EPA costing approach based mostly on generic assumptions 
essentially amounts to a group-BART approach that has been rejected by 
the courts.''
    Response: We agree with the commenters that the RP Guidance, BART 
Guidelines and Control Cost Manual are not binding with respect to RP 
analyses. Contrary to the commenters' assertions, however, our 
disapproval of ADEQ's RP analysis for point sources of NOX 
is not based solely or primarily on these guidance documents. While we 
considered the guidance documents in our review of the Arizona RH SIP, 
our disapproval results from the Arizona RH SIP's failure to meet the 
requirements of 40 CFR 51.308(d)(1)(i)(A) and (ii) with respect to 
point sources of NOX.
    In evaluating ADEQ's four-factor analysis for the Phoenix Cement 
Plant, we did take into consideration the RP Guidance, which recommends 
use of the BART Guidelines and the Control Cost Manual in performing 
four-factor analyses.\186\ While these materials are not legally 
binding, they are relevant to our evaluation of whether the State's 
four-factor analysis was reasonable. For example, in evaluating PCC's 
analysis of the cost of compliance for SNCR, we compared PCC's method 
to the costing method provided by the Control Cost Manual in order to 
ensure a reasonable ``apples-to-apples'' comparison of pollution 
control costs at Phoenix Cement Plant with costs at other facilities. 
In this case, PCC's analysis assumed an equipment lifetime of 10 years 
without any explanation or support, despite the fact that the Control 
Cost Manual establishes an economic lifetime of 20 years for an SNCR 
system and the kiln itself is expected to last for 50 years. We found 
that PCC's 10-year assumption effectively inflated the annualized cost 
of SNCR.\187\ Neither the Arizona RH SIP nor ADEQ's comments provide 
any evidence of an independent review by ADEQ or any explanation as to 
why this assumption is reasonable.\188\ Therefore, contrary to ADEQ's 
suggestion, EPA is not insisting that ADEQ employ EPA's own cost 
analysis in lieu of PCC's.\189\ Rather, we are finding that ADEQ did 
not independently evaluate PCC's analysis to determine whether its 
assumptions were reasonable and supported by appropriate 
documentation.\190\ In doing so, we are not requiring a ``group BART'' 
approach, as suggested by ADEQ. The term ``group BART'' refers to the 
consideration of the combined visibility impacts (or benefits) from 
multiple BART sources.\191\ No such consideration is at issue here.
---------------------------------------------------------------------------

    \186\ See RP Guidance page 5-1 (``For additional guidance on 
applying the cost of compliance factor to stationary sources, you 
may wish to consult the BART guidelines'') and 5-3 (``To maintain 
and improve consistency wherever possible, cost estimates should be 
based on EPA's Air Pollution Control Cost Manual.'').
    \187\ PCC objects to our characterization of this inflation as 
``significant'' because it amounts to approximately $80,000 per year 
or less than seven percent of the total annual cost. Given that ADEQ 
did not specify what cost of control it would consider to be 
reasonable, we consider a difference of seven percent to be 
significant, albeit not overwhelming.
    \188\ Indeed, ADEQ's four-factor analysis consists almost 
entirely of text provided by PCC itself. Compare Arizona RH SIP 
Supplement at 52-53 with ``4-Factor Reasonable Progress Analysis for 
Phoenix Cement Company Facility in Clarkdale, Arizona'', sent from 
PCC to ADEQ on March 21, 2013.
    \189\ ADEQ refers to PCC's cost analysis as a ``site-specific'' 
analysis. However, PCC's analysis relied largely on cost estimates 
from an entirely different facility, with no explanation as to why 
these estimates were reasonable for PCC. See Docket No. B.12, 
Attachment to the Regional Haze SIP Revision, Attachment to PCC 
Comments on Proposed SIP Disapproval.
    \190\ See 40 CFR 51.308(d) (To meet the core requirements for 
regional haze for these areas, the State must submit an 
implementation plan containing the following plan elements 
[including analyses of the four RP factors] and supporting 
documentation for all required analyses . . .'') (emphasis added).
    \191\ See American Growers,  F.3d at 4-5; CEED, 398 
F.3d at 660.
---------------------------------------------------------------------------

    In any case, our disapproval of the Arizona RH SIP with regard to 
non-BART sources of NOX is not based solely on the 
shortcomings of ADEQ's analysis for the Phoenix Cement Plant, but 
rather on the overall inadequacy of the analysis for the categories of 
NOX point sources that ADEQ had identified as contributing 
to visibility impairment at the State's Class I areas.\192\ Given this 
lack of analysis, we find that the Arizona RH SIP does not meet the 
requirements of 40 CFR 51.308(d)(1)(i)(A) and (ii) with respect to 
point sources of NOX.
---------------------------------------------------------------------------

    \192\ Please see section VIII.B of our proposal dated December 
21, 2012, and section IV.B.3 of our proposal dated May 20, 2013, and 
sections IV.A.6 and IV.B.2 of this document for the details of our 
evaluation.
---------------------------------------------------------------------------

3. BART for the Miami Smelter
a. BART-Eligibility Determination
    Comment: FMMI agrees and strongly supports EPA's proposal to 
approve ADEQ's clarification that the BART-eligible source at the Miami 
Smelter does not include the Remelt Vessel.
    Response: We agree with this comment and are finalizing our 
proposed approval of ADEQ's clarification of the BART-eligible source 
at the Miami Smelter.
b. NOX Subject-to-BART Analysis and Determination
    Comment: Earthjustice supported EPA's proposed disapproval of 
Arizona's determination that the Miami Smelter is not subject to BART 
for NOX.
    Response: We acknowledge this commenter's support.
    Comment: FMMI disagreed that enforceable limits are required for 
purposes of determining the maximum capacity of the NOX 
emission units at the Miami Smelter. FMMI noted that EPA guidance 
indicates that inherent \193\ physical limitations and operational 
design features, which restrict the potential emissions of individual 
emission units, should be taken into account when estimating PTE at 
facilities for which the theoretical use of equipment is much greater 
than could ever actually occur in practice.\194\ FMMI

[[Page 46171]]

asserted that this is the case with natural gas usage at the units that 
constitute the Miami Smelter BART-eligible source and that FMMI was 
therefore not required to obtain legally and practically enforceable 
limitations to restrict natural gas usage to those levels for purposes 
of estimating PTE.
---------------------------------------------------------------------------

    \193\ Citing ``Options for Limiting the Potential to Emit of a 
Stationary Source Under Section 112 and Title V of the Clean Air 
Act'' (January 25, 1995).
    \194\ Citing ``Calculating Potential to Emit (PTE) and Other 
Guidance for Grain Handling Facilities'' (November 14, 1995); 
``Calculating Potential to Emit (PTE) for Emergency Generators'' 
(September 6, 1995).
---------------------------------------------------------------------------

    Response: Under the RHR, PTE is defined as ``the maximum capacity 
of a stationary source to emit a pollutant under its physical and 
operational design . . . .'' \195\ Based on this definition, we agree 
that an inherent physical limitation and operational design features, 
which restrict the potential emissions of individual emission units, 
should be taken into account when estimating PTE. We disagree, however, 
that FMMI has identified any inherent physical or operational 
limitation that restricts PTE at the Miami Smelter.
---------------------------------------------------------------------------

    \195\ 40 CFR 51.301.
---------------------------------------------------------------------------

    As explained in the guidance document cited by FMMI, the most 
straightforward examples of inherent limitations are for single-
emission unit type operations, whereas such limitations are more 
difficult to identify for larger sources involving multiple emission 
units and complex operations.\196\ The Miami Smelter is just such a 
large source with multiple emission units and complex operations. The 
other two guidance documents cited by FMMI concern grain elevators and 
emergency generators, two source categories for which EPA has 
identified ``inherent limitations.'' \197\ In contrast, EPA has never 
identified such an inherent limitation for primary copper smelters, nor 
has ADEQ identified such a limitation here. Accordingly, in the absence 
of an enforceable limit on operations, the NOX PTE for the 
BART-eligible units at the Miami Smelter is greater than 40 tpy and a 
BART analysis for NOX is required.
---------------------------------------------------------------------------

    \196\ ``Options for Limiting the Potential to Emit of a 
Stationary Source under Section 112 and Title V of the Clean Air 
Act'', memorandum from John Seitz to EPA Air Directors (January 25, 
1995).
    \197\ See ``Calculating Potential to Emit (PTE) for Emergency 
Generators,'' September 6, 1995 (explaining that emergency 
generators are ``are used only during periods where electric power 
from public utilities is unavailable'') and ``Calculating Potential 
to Emit (PTE) and Other Guidance for Grain Handling Facilities'' 
November 14,1995 (explaining that grain elevators are ``designed to 
service, and as a matter of operation only service, a limited 
geographic area from which a finite amount of grain can be grown and 
harvested.'').
---------------------------------------------------------------------------

    Comment: Noting that visibility modeling performed by WRAP 
indicated that the visibility impact attributable to NOX 
emissions from the Miami Smelter is approximately 0.11 dv, FMMI 
asserted that the Miami Smelter should not be considered subject-to-
BART for NOX.
    Response: We disagree with this comment. As explained in sections 
IV.A.4.d and e above, once a facility is determined to be subject to 
BART, the RHR allows for the exemption of a specific pollutant from a 
BART analysis only if the PTE for that pollutant is below the specified 
de minimis level.\198\ Therefore, we disagree that NOX 
emissions from the Miami smelter are not ``subject to BART'' or are 
exempt from a BART analysis simply because the NOX-specific 
baseline impact from the Miami Smelter is less than 0.5 dv.
---------------------------------------------------------------------------

    \198\ 40 CFR 51.308(e)(1)(ii)(C).
---------------------------------------------------------------------------

    Comment: FMMI states that given the Miami Smelter's low baseline 
NOX emissions and the low baseline visibility impact 
indicated by WRAP visibility modeling results, improvements in 
visibility resulting from reductions in NOX emissions at the 
units that constitute the Miami Smelter BART-eligible source would be 
negligible. Accordingly, FMMI requests that EPA consider this 
alternative determination and conclude that NOX visibility 
impacts are so small that additional controls are not warranted for 
purposes of BART.
    Response: As noted in section IV.A.4.e above, we did not propose a 
NOX BART determination for the Miami Smelter; we proposed 
disapproval of the ADEQ's finding that the Miami Smelter was exempt 
from a NOX BART determination. We acknowledge the 
information provided by the commenters, and will examine it as we work 
towards developing and proposing a FIP for those elements of the 
Arizona RH SIP that we do not approve today.

V. Summary of Final Action

    EPA is taking final action to approve in part and disapprove in 
part the remaining portion of the Arizona RH SIP. Along with our final 
rule dated December 5, 2012, that addressed three major BART sources 
(Apache, Cholla and Coronado), today's action completes our evaluation 
of the Arizona RH SIP for the first planning period through 2018. In 
this section of the notice, we provide a summary of our evaluation of 
the BART analyses and determinations, RPGs, and Interstate Transport 
followed by a description of our legal obligation to promulgate a FIP 
to fill the gap left by the disapproved elements of the State's plan. 
EPA acknowledges ADEQ's efforts in developing the RH SIP Supplement 
that resulted in approval of additional elements of the Arizona RH SIP. 
We look forward to continuing our collaborative working relationship 
with ADEQ to resolve the outstanding issues and to ensure the Arizona 
RH SIP includes all the elements of a regional haze program.
    In today's final action, we are approving much of Arizona's RH SIP 
including all the supporting elements, many of the State's BART-
eligibility and BART-subject findings, two of the State's BART control 
determinations, aspects of the reasonable progress analysis, and most 
of the mandatory factors in the LTS. As a result of the RH SIP 
Supplement, we are approving an emissions inventory for 2008; some 
aspects of a reasonable progress analysis (i.e., decision to focus on 
SO2 and NOX and that no controls are needed on 
sources of PM in the first planning period); and the BART determination 
that no additional controls are needed for PM10 at the 
Hayden Smelter.
    We are disapproving Arizona's determinations that Sundt Generating 
Station Unit 4 is not BART-eligible; that the Nelson Lime Plant is not 
subject to BART; that the Miami and Hayden Smelters are not subject to 
BART for NOX; and that the existing controls at the Hayden 
and Miami Smelters constitute BART for SO2. We also are 
disapproving the RPGs for all of Arizona's Class I areas because the 
State did not perform a complete four-factor analysis and demonstration 
of reasonable progress. Moreover, our final disapproval of the RPGs and 
partial disapproval of the LTS is based on the fact that the Arizona RH 
SIP does not include enforceable emission limits to implement the 
State's BART determinations. We also are partially disapproving two 
transport SIPs with respect to the visibility protection requirements 
of 110(a)(2)(D)(i)(II), since these submittals relied entirely on the 
Arizona RH SIP to meet these requirements.

A. Regional Haze

 1. BART Analyses and Determinations
    Sources not eligible or subject to BART: EPA is approving Arizona's 
BART threshold (0.5 dv) and its determination that West Phoenix Power 
Plant and the Rillito Cement Plant are not subject to BART. We also are 
approving Arizona's determination that Cholla Unit 1 and Sundt Unit 3 
are not eligible for BART, and that a BART analysis is not required for 
Catalyst Paper.
    Sundt Unit 4: EPA is disapproving Arizona's determination that 
Sundt Unit 4 is not BART-eligible. Our decision is based on the fact 
that this unit did not

[[Page 46172]]

undergo NSR/PSD review as part of its reconstruction.
    Chemical Lime Nelson: EPA is disapproving Arizona's determination 
that Nelson Lime Plant is not subject to BART. Our decision is based on 
the fact that the plant had a modeled 98th percentile impact on 
visibility in 2003 that exceeded 0.5 dv as well as additional modeling 
results from NPS.
    Miami Smelter: We are approving Arizona's determination that the 
Miami Smelter is eligible and subject to BART for SO2 and 
PM10, but disapproving the State's determination that a BART 
analysis is not required for NOX. Our disapproval is based 
on the fact that the facility's NOX PTE is greater than the 
de minimis threshold of 40 tpy. Regarding SO2, we are 
disapproving Arizona's streamlined analysis and determination that BART 
for SO2 is the existing double contact acid plant. Our 
decision is based on the fact that the State did not conduct a five-
factor analysis or an adequate streamlined analysis, and that the 
Arizona RH SIP lacks emission limits and compliance requirements. 
Regarding PM10, we are approving Arizona's streamlined BART 
determination for PM10 at the Miami Smelter that compliance 
with MACT Subpart QQQ is BART. We are also approving the revised set of 
BART-eligible units at the Miami Smelter that were identified in the 
State's Supplement.
    Hayden Smelter: We are approving Arizona's determination that the 
Hayden Smelter is BART-eligible and subject to BART for SO2, 
but disapproving the State's determination that a BART analysis is not 
required for NOX and PM10. Regarding 
SO2, we are disapproving Arizona's streamlined determination 
that BART for SO2 is the existing double contact acid plant. 
Our decision is based on the fact that the State did not conduct a 
five-factor analysis or an adequate streamlined analysis. In addition, 
the SIP does not require all BART-eligible units to meet the emission 
limit and lacks compliance requirements. Regarding our disapprovals, a 
BART analysis and determination is required for NOX because 
the facility's NOX PTE exceeds the de minimis threshold of 
40 tpy. Regarding PM10, we are disapproving the State's 
determination that the Hayden Smelter is exempt from a BART 
determination because the facility's PM10 is greater than 
the de minimis level of 15 tpy. However, we are approving Arizona's 
BART analysis and determination for PM10 in its Supplement, 
which concluded that BART is no additional controls.
2. Reasonable Progress
    EPA is finalizing our disapproval of the State's RPGs for the 20-
percent worst days and 20-percent best days for three reasons. First, 
the Arizona RH SIP does not meet the requirements of 40 CFR 
51.308(d)(1)(i)(A) and (ii) because it does demonstrate, based on an 
analysis of the four RP factors, that the State's RPGs are reasonable, 
while achievement of the URP is not reasonable. In particular, the 
State has not demonstrated that it is reasonable not to require any 
additional controls on point sources of NOX and area sources 
of NOX and SO2 during this planning period. 
Second, EPA has disapproved ADEQ's BART determinations for 
NOX at three power plants and its determinations for 
SO2 at two copper smelters. Third, all of Arizona's BART 
determinations, including the ones we are approving, lack enforceable 
emission limitations and compliance schedules to ensure that the 
emissions reductions attributed to BART will, in fact, be achieved 
during this planning period. For each of these three reasons, we are 
disapproving Arizona's RPGs for this planning period.
    However, we are approving certain elements of the State's RP 
analysis. In particular, EPA is approving the State's decision to focus 
on NOX and SO2 sources for this planning period. 
As explained in our December 21, 2012, proposal \199\ and in our May 
20, 2013, proposal,\200\ the best information available indicates that 
VOC and secondary organic aerosols are largely uncontrollable. 
Therefore, it makes sense for Arizona to focus on other pollutants for 
this planning period. Similarly, as discussed in our May 20, 2013, 
proposal,\201\ EPA is approving the State's decision not to pursue 
additional controls for coarse mass and fine soil during this first 
planning period, based on the monitoring data analysis supplied by the 
State as well as our own supplemental analysis of the major sources of 
these air pollutants. No commenter provided evidence that it was 
reasonable to control any particular source of these pollutants.
---------------------------------------------------------------------------

    \199\ 77 FR 75728.
    \200\ 78 FR 29296-29297.
    \201\ 78 FR 29297-29299.
---------------------------------------------------------------------------

    EPA is also approving the State's decision not to require 
additional controls on point sources of SO2 in order to 
ensure reasonable progress during this planning period. EPA conducted 
our own four-factor analyses that confirmed the State's conclusion with 
regard to these sources. These analyses may be found in our December 
21, 2012, proposal \202\ and our responses to comments on these 
analyses may be found in section IV.A.6.b above.
---------------------------------------------------------------------------

    \202\ 77 FR 75728-75730.
---------------------------------------------------------------------------

    However, EPA is not approving ADEQ's RP analyses and determinations 
for area sources of SO2 and NOX and point sources 
of NOX. ADEQ identified categories of area sources of 
SO2 and NOX as appropriate candidates for four-
factor analyses, but did not conduct complete four-factor analyses for 
these categories.\203\ While the RHR does not require a complete four-
factor analysis for every source or category in every planning period, 
it also does not allow for the deferral of all such analyses to future 
planning periods, particularly for the source categories that the State 
has identified as contributing to visibility impairment. Therefore, EPA 
is finalizing our proposed disapproval of the State's determination 
that it is not reasonable to control area sources of SO2 and 
NOX in order to ensure reasonable progress this planning 
period. We will conduct our own analyses of these categories and 
present it for public comment in our upcoming FIP proposal.
---------------------------------------------------------------------------

    \203\ See Arizona Supplement Section 11.3.3.
---------------------------------------------------------------------------

    Similarly, ADEQ did not complete four-factor analyses for most of 
the point sources of NOX that were identified as 
contributing to visibility impairment.\204\ EPA is currently conducting 
our own four-factor analyses of these sources. We are consulting with 
the owners and operators of these facilities in order to make certain 
that we are using the best possible technical information to make our 
determination. However, that process did not conclude in time for us to 
present our findings in our proposed action on the Arizona RH SIP. 
Therefore, we were unable to fully evaluate whether the State correctly 
determined that it is not reasonable to require additional controls on 
point sources of NOX at this time. As a result, we are 
disapproving the State's determination on this question and are 
planning to address it in our upcoming FIP proposal.
---------------------------------------------------------------------------

    \204\ ADEQ did conduct a four-factor analysis for the Phoenix 
Cement Plant, but, as explained in section IV.B.3.a of our May 20, 
2013 proposal, and section IV.B.2.c above, this analysis was 
inadequate to support ADEQ's determination that it was not 
reasonable to require any additional controls at this source.
---------------------------------------------------------------------------

B. Interstate Transport

    As discussed in section III.D (``Overview of Final Action on 
Regional Haze and Interstate Transport: Interstate Transport'') and 
section IV.A.8 (``EPA's Response to Comments: Arizona's Provisions for 
Interstate Transport of Pollutants'') of this final rule, EPA finds 
that the Arizona SIP, as revised by Arizona's 2007 and 2009 Transport 
SIPs

[[Page 46173]]

and RH Plan, does not contain adequate provisions to prohibit emissions 
that will interfere with SIP measures required of other states to 
protect visibility. Therefore, we disapprove Arizona's 2007 and 2009 
Transport SIPs and the Arizona RH Plan for the interstate transport 
visibility requirement of section 110(a)(2)(D)(i)(II) for the 1997 8-
hour ozone, 1997 PM2.5, and 2006 PM2.5 NAAQS.
    This disapproval triggers the obligation under CAA section 
110(c)(1) for EPA to promulgate a FIP for the interstate transport 
visibility requirement for these NAAQS within two years from the 
effective date of this final rule. We anticipate that this FIP 
obligation could be satisfied by a combination of the measures that we 
previously approved (i.e., for Apache, Cholla, and Coronado power 
plants), the measures we are approving today with respect to the SIP, 
and EPA's promulgation of FIPs for the disapproved elements of the 
Arizona RH Plan. Alternately, this FIP obligation could be resolved by 
EPA approval of subsequent SIP revisions from ADEQ that either resolve 
the deficiencies in the SIP or provide a demonstration that emissions 
from the State's sources and activities will not have the prohibited 
impacts under the existing SIP.

C. Federal Implementation Plan

    CAA section 110(c)(1) requires EPA to promulgate a FIP within two 
years after finding that a state has failed to make a required 
submission or disapproving a SIP submission in whole or in part, unless 
EPA approves a SIP revision correcting the deficiencies within that 
two-year period. As explained above, due to our previous finding that 
Arizona had failed to make part of the required regional haze 
submission, 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 for 
approval of a SIP and/or promulgation of a FIP that collectively meet 
the regional haze implementation plan requirements for Arizona, based 
on this FIP obligation.\205\ Thus, we do not construe today's partial 
disapproval as creating any new FIP obligation with respect to RHR 
requirements. However, Arizona is appealing the district court's entry 
and modification of the consent decree that sets the deadlines for EPA 
action on regional haze plans for Arizona.\206\ 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 the elements of the SIP that we are 
disapproving and that are not subject to the already-expired FIP clock. 
We intend to fulfill our FIP obligation by proposing a FIP addressing 
the elements of the SIP that we have disapproved today.
---------------------------------------------------------------------------

    \205\ National Parks Conservation Association v. Jackson (D.D.C. 
Case 1:11-cv-01548).
    \206\ National Parks Conservation Association v. EPA (D.C. Cir., 
USCA Case 12-5211).
---------------------------------------------------------------------------

    Under section 179(a) of the CAA, final disapproval of a submittal 
that addresses a requirement of part D, title I of the CAA (CAA 
sections 171-193) or is required in response to a finding of 
substantial inadequacy as described in CAA section 110(k)(5) (SIP Call) 
starts a sanction's clock. Arizona's 308 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.

VI. 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 (EO) 12866 (58 FR 51735, October 4, 1993) and 
is therefore not subject to review under the EO.

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., 
because this partial approval and partial disapproval of SIP revisions 
under CAA section 110 will not in-and-of itself create any new 
information collection burdens but simply approves certain State 
requirements, and disapproves certain other State requirements, for 
inclusion into the SIP. Burden is defined at 5 CFR 1320.3(b).

C. Regulatory Flexibility 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. For purposes of assessing the impacts of today's rule on 
small entities, small entity is defined as: (1) A small business as 
defined by the Small Business Administration's (SBA) regulations at 13 
CFR 121.201; (2) a small governmental jurisdiction that is a government 
of a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of today's rule on small 
entities, I certify that this action will not have a significant impact 
on a substantial number of small entities. This rule does not impose 
any requirements or create impacts on small entities. This partial SIP 
approval and partial SIP disapproval under CAA section 110 will not in-
and-of itself create any new requirements but simply approves certain 
State requirements, and disapproves certain other State requirements, 
for inclusion into the SIP. Accordingly, it affords no opportunity for 
EPA to fashion for small entities less burdensome compliance or 
reporting requirements or timetables or exemptions from all or part of 
the rule. Therefore, this action will not have a significant economic 
impact on a substantial number of small entities.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for state, local, or tribal governments or the private 
sector. EPA has determined that the partial approval and partial 
disapproval 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 
action approves certain pre-existing requirements, and disapproves 
certain other pre-existing requirements, under state or local law, 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, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), 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

[[Page 46174]]

the States, or on the distribution of power and responsibilities among 
the various levels of government.''
    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, as 
specified in Executive Order 13132, because it merely approves certain 
state requirements, and disapproves certain other state requirements, 
for inclusion into the SIP and does not alter the relationship or the 
distribution of power and responsibilities established in the Clean Air 
Act. Thus, Executive Order 13132 does not apply to this action.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP 
on which EPA is taking action would not apply in Indian country located 
in the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law. Thus, Executive 
Order 13175 does not apply to this action.
    Nonetheless, we note that the Phoenix Cement Plant is owned by the 
tribal government of the Salt River Pima-Maricopa Indian Community 
(SRPMIC). Our disapproval of ADEQ's determination not to require 
additional controls on this source leaves open the possibility that 
this source could be regulated in a future regional haze FIP. 
Therefore, consistent with the EPA Policy on Consultation and 
Coordination with Indian Tribes (May 2, 2011), we have shared our 
initial analyses with SRPMIC and PCC to ensure that the tribe has an 
early opportunity to provide feedback on such a potential FIP. In 
addition EPA Region 9 has offered opportunities for meetings and formal 
consultation.\207\
---------------------------------------------------------------------------

    \207\ Memo dated May 8, 2013, from Colleen McKaughan regarding 
EPA Region 9 communications with SRPMIC.
---------------------------------------------------------------------------

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

    EPA interprets EO 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 EO has the 
potential to influence the regulation. This action is not subject to EO 
13045 because it is not an economically significant regulatory action 
based on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997). This partial approval and partial disapproval 
under CAA section 110 will not in-and-of itself create any new 
regulations but simply approves certain state requirements, and 
disapproves certain other state requirements, for inclusion into the 
SIP.

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

    This rule is not subject to Executive Order 13211 (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(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards. The EPA has 
determined that this action is not subject to requirements of Section 
12(d) of NTTAA because application of those requirements would be 
inconsistent with the Clean Air Act.

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

    Executive Order (EO) 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.

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. 
section 804(2). This rule will be effective on December 5, 2012.

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 January 4, 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 oxides, Sulfur 
dioxide, Particulate matter, Reporting and recordkeeping requirements, 
Visibility, Volatile organic compounds.

    Dated: July 15, 2013.
Jane Diamond,
Director, Water Division, Region 9.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for Part 52 continues to read as follows:

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

[[Page 46175]]

Subpart D--Arizona

0
2. Section 52.120 is amended by adding paragraphs (c)(154)(ii)(A)(2) 
and (c)(158) to read as follows:

Sec.  52.120  Identification of plan.

* * * * *
    (c) * * *
    (154) * * *
    (ii) * * *
    (A) * * *
    (2) Arizona State Implementation Plan, Regional Haze Under Section 
308 of the Federal Regional Haze Rule (January 2011), excluding:
    (i) Chapter 6: table 6.1; chapter 10: sections 10.4, 10.6 
(regarding Unit I4 at the Irvington (Sundt) Generating Station), 10.7, 
and 10.8; chapter 11; chapter 12: sections 12.7.3 (``Emission 
Limitation and Schedules of Compliance'') and 12.7.6 (``Enforceability 
of Arizona's Measures''); and chapter 13: section 13.2.3 (``Arizona and 
Other State Emission Reductions Obligations'');
    (ii) Appendix D: chapter I; chapter V (regarding Unit I4 at the 
Irvington (Sundt) Generating Station); chapter VI, sections C and D; 
chapter VII; chapter IX; chapter X, section E.1; chapter XI, section D; 
chapter XII, sections B and C; chapter XIII, sections B, C, and D; and 
chapter XIV, section D; and
    (iii) Appendix E.
* * * * *
    (158) The following plan was submitted May 3, 2013, by the 
Governor's designee.
    (i) [Reserved]
    (ii) Additional materials.
    (A) Arizona Department of Environmental Quality (ADEQ).
    (1) Arizona State Implementation Plan Revision, Regional Haze Under 
Section 308 of the Federal Regional Haze Rule (May 2013), excluding:
    (i) Chapter 10, section 10.7 (regarding ASARCO Hayden Smelter 
(PM10 emissions) and Chemical Lime Company--Nelson Lime 
Plant);
    (ii) Chapter 11, except subsection 11.3.1(3) (``Focus on 
SO2 and NOX pollutants'');
    (iii) Appendix D: chapter I, except for the footnotes in tables 
1.1, 1.2 and 1.3 to the entries for AEPCO [Apache], and the entry in 
table 1.2 for Freeport-McMoRan Miami Smelter; chapter VI, section C 
(regarding PM10 emissions from ASARCO Hayden smelter); 
chapter XII, section C, and chapter XIII, subsection D; and
    (iv) Appendix E.

0
3. Section 52.123 is amended by revising paragraphs (l), (m), and (n) 
to read as follows:

Sec.  52.123  Approval status.

* * * * *
    (l) 1997 8-hour ozone NAAQS: The SIPs submitted on May 24, 2007, 
October 14, 2009 and August 24, 2012 are fully or partially disapproved 
for Clean Air Act (CAA) elements 110(a)(2)(C), (D)(i)(II) (interfere 
with measures in any other state to protect visibility), (D)(ii), (J) 
and (K) for all portions of the Arizona SIP; for CAA element 
110(a)(2)(E)(ii) for the Maricopa County, Pima County, and Pinal County 
portions of the Arizona SIP; and for CAA element 110(a)(2)(F) for the 
Pima County portion of the Arizona SIP.
    (m) 1997 PM2.5 NAAQS: The SIPs submitted on May 24, 2007, October 
14, 2009 and August 24, 2012 are fully or partially disapproved for 
Clean Air Act (CAA) elements 110(a)(2)(C), (D)(i)(II) (interfere with 
measures in any other state to protect visibility), (D)(ii), (J) and 
(K) for all portions of the Arizona SIP; for CAA element 
110(a)(2)(E)(ii) for the Maricopa County, Pima County, and Pinal County 
portions of the Arizona SIP; and for CAA element 110(a)(2)(F) for the 
Pima County portion of the Arizona SIP.
    (n) 2006 PM2.5 NAAQS: The SIPs submitted on October 14, 2009 and 
August 24, 2012 are fully or partially disapproved for Clean Air Act 
(CAA) elements 110(a)(2)(C), (D)(i)(II) (interfere with measures in any 
other state to prevent significant deterioration of air quality or to 
protect visibility), (D)(ii), (J) and (K) for all portions of the 
Arizona SIP; for CAA element 110(a)(2)(E)(ii) for the Maricopa County, 
Pima County, and Pinal County portions of the Arizona SIP; and for CAA 
element 110(a)(2)(F) for the Pima County portion of the Arizona SIP.
0
4. Section 52.145 is amended by adding paragraphs (e)(2) and (g) to 
read as follows:

Sec.  52.145  Visibility protection.

* * * * *
    (e) * * *
    (2) The following portions of the Arizona Regional Haze SIP are 
disapproved because they do not meet the applicable requirements of 
Clean Air Act sections 169A and 169B and the Regional Haze Rule in 40 
CFR 51.301 through 51.308:
    (i) The determination that Unit I4 at TEP's Irvington [Sundt] 
Generating Station is not BART-eligible;
    (ii) The portions of the long-term strategy for regional haze 
related to emission reductions for out-of-state Class I areas, 
emissions limitations and schedules for compliance to achieve the 
reasonable progress goal and enforceability of emissions limitations 
and control measures.
    (iii) The NOX BART determination for Units ST2 and ST3 
at AEPCO Apache Generating Station;
    (iv) The NOX BART determination for Units 2, 3, and 4 at 
APS Cholla Power Plant;
    (v) The NOX BART determination for Units 1 and 2 at SRP 
Coronado Generating Station; and
    (vi) The BART compliance provisions for all BART emissions limits 
at Units ST1, ST2 and ST3 at AEPCO Apache Generating Station, Units 2, 
3, and 4 at APS Cholla Power Plant, and Units 1 and 2 at SRP Coronado 
Generating Station.
* * * * *
    (g) On May 3, 2013, the Arizona Department of Environmental Quality 
(ADEQ) submitted the ``Arizona State Implementation Plan Revision, 
Regional Haze Under Section 308 of the Federal Regional Haze Rule'' 
(``Arizona Regional Haze SIP Supplement'').
    (1) The following portions of the Arizona Regional Haze SIP 
Supplement are disapproved because they do not meet the applicable 
requirements of Clean Air Act sections 169A and 169B and the Regional 
Haze Rule in 40 CFR 51.301 through 51.308:
    (i) The determination that the Chemical Lime Company's Nelson Lime 
Plant is not subject-to-BART;
    (ii) The determination that the Freeport McMoRan Miami Inc (FMMI) 
Smelter is not subject to BART for NOX;
    (iii) The determination that existing controls constitute BART for 
SO2 at the Freeport McMoRan Miami Inc (FMMI) Smelter;
    (iv) The determination that the ASARCO Hayden smelter is not 
subject to BART for NOX and PM10;
    (v) The determination that existing controls constitute BART for 
SO2 at ASARCO Hayden Smelter;
    (vi) The reasonable progress goals for the first planning period;
    (vii) The determination that no additional controls for point 
sources of NOX are reasonable for the first planning period; 
and
    (viii) The determination that no additional controls for area 
sources of NOX and SO2 are reasonable for the 
first planning period.
    (2) [Reserved]

0
5. Add Sec.  52.147 to subpart D to read as follows:

Sec.  52.147  Interstate transport.

    (a) Approval. The SIP submitted on May 24, 2007 meets the 
requirements of Clean Air Act section 110(a)(2)(D)(i)(I) (contribute 
significantly to

[[Page 46176]]

nonattainment or interfere with maintenance of the NAAQS in any other 
state) and section 110(a)(2)(D)(i)(II) (interfere with measures in any 
other state to prevent significant deterioration of air quality, only) 
for the 1997 8-hour ozone and 1997 PM2.5 NAAQS.
    (b) Disapproval. The SIPs submitted on May 24, 2007, February 28, 
2011, and May 3, 2013 do not meet the requirements of Clean Air Act 
section 110(a)(2)(D)(i)(II) (interfere with measures in any other state 
to protect visibility, only) for the 1997 8-hour ozone and 1997 
PM2.5 NAAQS.
    (c) Approval. The SIP submitted on October 14, 2009 meets the 
requirements of Clean Air Act section 110(a)(2)(D)(i)(I) (contribute 
significantly to nonattainment or interfere with maintenance of the 
NAAQS in any other state) for the 2006 PM2.5 NAAQS.
    (d) Disapproval. The SIPs submitted on October 14, 2009 and August 
24, 2012 do not meet the requirements of Clean Air Act section 
110(a)(2)(D)(i)(II) (interfere with measures in any other state to 
prevent significant deterioration of air quality, only) for the 2006 
PM2.5 NAAQS.
    (e) Disapproval. The SIPs submitted on October 14, 2009, February 
28, 2011, and May 3, 2013 do not meet the requirements of Clean Air Act 
section 110(a)(2)(D)(i)(II) (interfere with measures in any other state 
to protect visibility, only) for the 2006 PM2.5 NAAQS.

[FR Doc. 2013-18022 Filed 7-29-13; 8:45 am]
BILLING CODE 6560-50-P
```