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 


emcdonald on DSK67QTVN1PROD with RULES2
46142 Federal Register / Vol. 78, No. 146 / Tuesday, July 30, 2013 / Rules and Regulations 

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 Longterm 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 


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Federal Register / Vol. 78, No. 146 / Tuesday, July 30, 2013 / Rules and Regulations 46143 

1 77 FR 75704. Please see the proposal for a 

summary of the requirements of the RHR and the 

CAA concerning visibility protection. 

2See 77 FR 72512. 

3We 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. 

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. 

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 BARTeligible. 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. 

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 


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46144 Federal Register / Vol. 78, No. 146 / Tuesday, July 30, 2013 / Rules and Regulations 

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. 

9National Parks Conservation Association v. 

Jackson (D.D.C. Case 1:11–cv–01548). 

10National 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. 

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. 

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

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 Apache, Cholla and Coronado ................................ July 2, 2012 1 .................... November 15, 2012 2. 

Phase 2—All remaining elements of the Arizona RH SIP ................................................ December 8, 2012 3 .......... July 15, 2013. 

Phase 3—FIP for disapproved elements of the Arizona RH SIP (if required) ................. September 6, 2013 ........... February 6, 2014. 

1Published in the Federal Register on July 20, 2012, 77 FR 42834. 2Published in the Federal Register on December 5, 2012, 77 FR 72512. 3Published in the Federal Register on December 21, 2012, 77 FR 75704. 


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Federal Register / Vol. 78, No. 146 / Tuesday, July 30, 2013 / Rules and Regulations 46145 

12 40 CFR 51.309(a). 

13 71 FR 28270 and 72 FR 25973. 

14Center for Energy and Economic Development 

v. EPA, 398 F.3d 653 (D.C. Circuit 2005). 

15 71 FR 60612. 

16Letter from Stephen A. Owens, ADEQ, to 

Wayne Nastri, EPA (December 24, 2008). 

17 78 FR 8083. 

18 74 FR 2392. 

19CAA section 110(k)(1)(B). 

20 ‘‘Arizona State Implementation Plan, Regional 

Haze under Section 308 Of the Federal Regional 

Haze Rule,’’ February 28, 2011. 

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. 

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. 

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. 

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

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 BARTeligible. 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 


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21 78 FR 7702. 

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). 

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: 

• 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

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 


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28CAA section 110(a)(1), (k)(3) and (l), 42 U.S.C. 

7410(a)(1), (k)(3) and (l). 

29See id. 7410(c)(1). 

30CAA sections 110(a)(2)(J), 169A and 169B, 42 

U.S.C. 7410(a)(2)(J), 7491 and 7492. 

31Under 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). 

34 291 F.3d 1, 5–9 (D.C. Cir. 2002). 

35 Id., pages 7–8. 

36EPA 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). 

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). 

42See Train, 421 U.S. 60, 79 (‘‘Under § 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 

Continued 

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. 

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. 

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. 

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 [,] . . . SIPapproved 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

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


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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)). 

43PL 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). 

46 666 F.3d 1174 (9th Cir. 2012). 

47 Id. at 1189. 

48Letter 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. 

51See 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 . . .’’). 

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. 

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. 

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

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 


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52Letter from Colleen McKaughan, EPA, to Eric 

Massey, ADEQ (December 2, 2010). 53 42 U.S.C. 7410(k)(3). 

54Hall 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’’). 

55See National Parks Conservation Association v. 

Jackson (D.D.C. Case 1:11-cv-01548), Docket # 21, 

Partial Consent Decree (March 30, 2012). 

56Although 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. 

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. 

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. 

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

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

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 courtordered 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. 

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’’ 


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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)].’’ 

60See 40 CFR part 51, appendix V. 

61 40 CFR 51.308(d)(1)(i). 

62 40 CFR 51.308(d). 

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

64 40 CFR 51.308(d)(1)(i)(A). 

65 40 CFR 51.308(d)(1)(ii). 

66See, 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.’’). 

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). 

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

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

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. 

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 fourfactor analysis.66

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

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 BARTEligibility 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 


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69Citing 40 CFR part 51, appendix Y, section 

II.A.2. 

70 517 F.3d 574, 582 (D.C. Cir. 2008). 

71The 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. 

72BART Guidelines § II.A.2. 

73Memorandum to Docket Regarding TEP Sundt 

Unit 4—BART Eligibility (Nov. 21, 2011) 

[hereinafter ‘‘Sundt Memorandum] at 4 (internal 

citations omitted). 

74 Id. at 5. 

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. 

76Summary of Comments and Responses on the 

May 22, 1980, Proposed Regulations for Visibility 

Protection for Federal Class I Areas, page 225. 

77 Id. 

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 coalconversion 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. 

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: 

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

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

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. 

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.’’ 

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 BARTeligibility 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 


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78See Docket Item H–09, which contains the 1948 

purchase order for Converter No. 2. 

79See ADEQ Title V Permit 10042, Attachment C 

‘‘Equipment List’’, which contains equipment 

installation dates. 

80BART Guidelines, 40 CFR part 51, appendix Y, 

section III.A.1. 

81 Id. 

82 77 FR 75722. 

83 Ibid. 

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. 

d. Miami Smelter 

Comment: FMMI asserted that EPA 

did not properly identify the BARTeligible 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 BARTeligible. 

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. 

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-toBART threshold of 0.5 dv is reasonable. 

Therefore, we are approving this 

threshold. 

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 


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

7491(b)(2)(A). 

85See e.g., 77 FR 72519. 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). 

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 humancaused 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. 

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 fivefactor 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. 

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. 

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 oneyear 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 


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87Under 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 BARTeligible 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.’’). 

or contribute to visibility impairment at 

any single Class I area. The subject-toBART 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

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 BARTeligible 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 FLMrecommended 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. 


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88 77 FR 29302. 

89See 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). 

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). 

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. 

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 BARTeligible 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 pollutantby-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. 

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. 

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 


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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). 93 Id. 

94Letter 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). 

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. 

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 BARTeligible 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 visibilityimpairing 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 BARTeligible 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.

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 fivefactor 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 


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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). 

97ADEQ Comments at page 12. 

98 77 FR 29304. 

99 40 CFR Part 51, Appendix Y, Section IV.C. 

100ADEQ Title V Permit 53592, issued 2012–11– 

26. 

101See 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). 

103See, 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). 

104CAA 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). 

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. 

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. 

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 fivefactor 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 BARTeligible 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 BARTeligible source are not likely. As a 

result, we did not identify any control 

options that ‘‘would lead to costeffective 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. 

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. 

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 


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107 40 CFR part 51, appendix Y, section IV.C. 108The 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. 

109See 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. 

112Winkler, 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<e’s new VK–701 LEAP5TM sulphuric acid 

catalyst’’, Haldor Topsoe. 

114Malevu, Siyabonga ‘‘J Acid Plant Capacity 

Increase’’, The Southern African Institute of Mining 

and Metallurgy, Sulphur and Sulphuric Acid 

Conference 2009. 

115See 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]’’. 

116See 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. 

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. 

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 

RBLC108 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 cesiumpromoted catalyst as well as certain 

enhancements to standard potassiumpromoted 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 fivefactor 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). 

Comment: ASARCO and FMMI 

asserted that there are substantial 

technical and operational differences 

between sulfur-burning and other acidproducing 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. 

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. 


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117 77 FR 75725–75726 (internal citations 

omitted). 

118 40 CFR 51.308(e)(1)(iv), (v). 

119See, e.g. CAA section 110(a)(2)(F) and 40 CFR 

51.212(c). 

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 fiveconverter 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 doublecontact 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 BARTsubject 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). 

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 


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

121Citing EPA’s Guidance for Setting Reasonable 

Progress Goals Under the Regional Haze Program at 

4–2 (June 1, 2007) (‘‘RP Guidance’’). 122CAA 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). 

124Arizona RH SIP Section 11.3.1 (Supplement, 

page 47). 

125See Arizona’s RH SIP Tables 11.2 and 11.3. 

126Arizona RH SIP Section 11.3.3 (Supplement, 

page 50). 

127The 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. 

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. 

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. 

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. 

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 fourfactor 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

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 


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128Citing 77 FR 36044 and 77 FR 70693. 

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/

NMRegionalHazeandInfrastructureSIP

submittals.htm). 

130California Regional Haze Plan submitted to 

EPA on March 16, 2009, Sections 4.6–4.7. 

131California Regional Haze Plan, Sections 4.3 

and 4.7. 

132California Regional Haze Plan, Section 4.2.1. 

133See Hawaii RH FIP proposal, May 29, 2012, 77 

FR 31707–31712 and Hawaii RH FIP final rule, 

October 9, 2012, 77 FR 61489–61493. 

134See ‘‘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. 

135See 77 FR 31707. 

136See 77 FR 31708. 

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

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. 

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 subregion. 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. 

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 fourfactor analysis as well as a region-byregion 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 onroad 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 Hawaiispecific method of gauging reasonable 

progress that was used makes any 

comparisons with Arizona 

inappropriate.136

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. 

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 


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138See 64 FR 35730–35731. 

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

140CAA 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). 

141CAA section 169A(b) (2), 42 U.S.C. 7491(b)(2). 

142See, 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.’’). 

143BART Guidelines, 40 CFR Part 51, Appendix 

Y, section IV.D.4.d.1. 

144Under 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. 

145See ‘‘Cholla 1 SO2 costs.xls’’. 

146 Id. 

147See 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). 

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

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. 

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. 

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: 

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

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

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. 

In addition, the commenter provided 

estimates of visibility improvement and 


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148See, 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.’’ 149BART Guidelines, 40 CFR Part 51, Appendix 

Y, section IV.D.4.d.1. 

150Regulatory 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. 

151See Docket Item I.12, ‘‘Springerville FGD costs 

(updated), a revised version of docket item F.10, 

Springerville FGD costs.xls’’. 

152 Id. 

153Arizona 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). 

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 costeffectiveness, 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 costeffectiveness values to approximately 

$14,000/ton. 

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 costeffectiveness 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

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 costeffectiveness 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. 

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 


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46164 Federal Register / Vol. 78, No. 146 / Tuesday, July 30, 2013 / Rules and Regulations 

154 78 FR 29292. 

155 78 FR 29299–29300. 

156See 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. 

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 nonBART 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.

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. 

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-andcomment 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 nonBART 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 


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157See 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. 

158 77 FR 75730. 

159See 2011 Arizona RH SIP at 165; 2013 Arizona 

RH SIP Supplement at 52. 

160 Id. 161Arizona RH SIP, page 178. 

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. 

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 fourfactor 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. 

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 LongTerm 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. 

The other two elements of Arizona’s 

LTS that we proposed to disapprove 

pertain to consideration of emissions 


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46166 Federal Register / Vol. 78, No. 146 / Tuesday, July 30, 2013 / Rules and Regulations 

162EME Homer City Generation, L.P. v. EPA., 696 

F.3d 7 (D.C. Cir. 2012). 

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). 

164See 77 FR 75735. 

165EPA 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 longterm 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. 

166 76 FR 48208, August 8, 2011. 

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. 

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. 

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. 

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 


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167EO 13175: Consultation and Coordination 

with Indian Tribal Governments, 65 FR 67249, 

section 1(a) (Nov. 9, 2000). 

168See Memorandum to File from Colleen 

McKaughan regarding EPA Region 9 

communications with SRPMIC (May 8, 2013). 

169Email from Colleen McKaughan, EPA, to Verle 

Martz, PCC (November 6, 2012). 

170Letter 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). 

171See Arizona RH SIP Supplement, page 52. 172See 77 FR 29297–29298. 

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 noticeand-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

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. 

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 


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46168 Federal Register / Vol. 78, No. 146 / Tuesday, July 30, 2013 / Rules and Regulations 

173See 64 FR 35730–35731. 174 78 FR 29298–29299. 

175See 40 CFR 51.308(g) and (h). 

176 40 CFR 51.308(d)(1)(i)(A) and (ii). 

177See Section 11.3.3 of the Supplement, pages 

23, 24 and 25. 

exclude coarse mass and fine soils from 

its four-factor reasonable progress 

analysis for the first planning period. 

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. 

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 fourfactor 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. 

c. Point Sources of NOX

Comment: PCC reiterated its assertion 

that EPA lacks authority to disapprove 

the Arizona RH SIP with regard to nonBART 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. 

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 


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178 40 CFR 51.308(d)(1)(ii) and (iii). 

179 40 CFR 51.308(d)(1)(i) and (ii). 

180RP Guidance page 3–1 (emphasis added). 

181See Arizona RH SIP section 11.3.3 (RH 

Supplement pages 48–54). 

182As 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. 

183Arizona RH SIP section 11.3.3 (page 52 of the 

RH Supplement). 

184 2011 RH SIP page 165. 185Supplement page 51–52. 

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

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. 

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. 

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: 

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

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 


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186See 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.’’). 

187PCC 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. 

189ADEQ refers to PCC’s cost analysis as a ‘‘sitespecific’’ 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. 

190See 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). 

191See American Growers, # F.3d at 4–5; CEED, 

398 F.3d at 660. 

192Please 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. 

193Citing ‘‘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). 

194Citing ‘‘Calculating Potential to Emit (PTE) 

and Other Guidance for Grain Handling Facilities’’ 

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. 

In any case, our disapproval of the 

Arizona RH SIP with regard to nonBART 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. 

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 BARTeligible 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 


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(November 14, 1995); ‘‘Calculating Potential to Emit 

(PTE) for Emergency Generators’’ (September 6, 

1995). 

195 40 CFR 51.301. 

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). 

197See ‘‘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.’’). 198 40 CFR 51.308(e)(1)(ii)(C). 

asserted that this is the case with 

natural gas usage at the units that 

constitute the Miami Smelter BARTeligible 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. 

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. 

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 BARTeligible units at the Miami Smelter is 

greater than 40 tpy and a BART analysis 

for NOX is required. 

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. 

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 


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199 77 FR 75728. 

200 78 FR 29296–29297. 

201 78 FR 29297–29299. 

202 77 FR 75728–75730. 

203See Arizona Supplement Section 11.3.3. 

204ADEQ 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. 

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 BARTeligible 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. 

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. 

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 fourfactor 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. 

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. 

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 


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205National Parks Conservation Association v. 

Jackson (D.D.C. Case 1:11–cv–01548). 

206National Parks Conservation Association v. 

EPA (D.C. Cir., USCA Case #12–5211). 

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. 

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 


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207Memo dated May 8, 2013, from Colleen 

McKaughan regarding EPA Region 9 

communications with SRPMIC. 

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 PimaMaricopa 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

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 

■ 1. The authority citation for Part 52 

continues to read as follows: 

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


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Subpart D—Arizona 

■ 2. Section 52.120 is amended by 

adding paragraphs (c)(154)(ii)(A)(2) and 

(c)(158) to read as follows: 

§ 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 FreeportMcMoRan 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. 

■ 3. Section 52.123 is amended by 

revising paragraphs (l), (m), and (n) to 

read as follows: 

§ 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. 

■ 4. Section 52.145 is amended by 

adding paragraphs (e)(2) and (g) to read 

as follows: 

§ 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] 

■ 5. Add § 52.147 to subpart D to read 

as follows: 

§ 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 


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46176 Federal Register / Vol. 78, No. 146 / Tuesday, July 30, 2013 / Rules and Regulations 

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 


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