Arkansas State Implementation Plan Infrastructure Elements Required Under S ection 110(a)(2) for the 1997 8-hour Ozone and the 1997 and 2006 Fine Particulate Matter (PM 2.5 ) NAAQS and Interstate Transport

Elements Required Under Section 110(a )(2) for the 1997 Ozone NAAQS and the 2006

PM 2.5 NAAQS

Docket ID EPA-R06-OAR-2008-0633

Technical Support Document January 2012

Table of Contents:

I. Introduction A. Section 110(a)(1) and (2) Infrastructure SIP Elements B. Section 110(a)(1) and (2) Transport SIP Elements C. Legal Authority and Revi sions to the Arkansas SIP D. The Greenhouse Gas (GHG) Component II. SIP elements required under Sect ion 110(a)(2) for the 1997 8-hour ozone

and the 1997 and 2006 PM 2.5 NAAQS, the State submittals and EPA analysis

III. EPA’s Recommendation

A. What is a Partial Approv al, Partial Disapproval?

B. EPA’s Recommendation on the Section 110(a)(1) and (2) Infrastructure SIP Elements

C. EPA’s Recommendation on the Section 110(a)(1) and (2) Transport SIP Elements

IV. References

I. Introduction In this technical support document (TSD), EP A is evaluating the submittals provided by the Arkansas Department of Environmental Quality (ADEQ) to meet the requirements of section 110(a)(2) of the Clean Air Act (CAA or Act) for the 1997 8-hour ozone and the 1997 and 2006 fine particulate matter national ambient air quality standards (NAAQS or sta ndards). More detail on these standards, section 110(a)(1) and (2) of the Act, and the submittals we are reviewing to satisfy the section 110(a)(2) require ments for Arkansas are provided in subsections A - D, below. Throughout this document, “we,” “us,” and “our” means EPA. Section II of the TSD provides a descripti on of each element required under section 110(a)(2) of the Act, the State’s re sponse, and our analysis of the State’s response. Copies of the State’s submittals are in the docket for this rulemaking.

Section III of the TSD includes our recomme ndation for action on each of the elements

reviewed herein.

Section IV of the TSD contai ns a list of the guidance doc uments referenced herein. Copies of these guidance documents ar e in the docket for this rulemaking.

A. Section 110(a)(1) and (2) Infrastructure SIP Elements On July 18, 1997, EPA promulgated a new NAA QS for ozone (published in volume 62 of the Federal Register (FR), beginning on page 38856, denoted 62 FR 38856) and a new standard for fine particulate matter (62 FR 38652). For ozone, EPA revised the NAAQS to2 provide an 8-hour averaging period (versus the 1-hour averaging peri od for the 1-hour ozone standard), and set the level of the standard to 0.08 parts per million (ppm). The 1-hour ozone NAAQS was 0.12 ppm. For particulate matter (P M), EPA promulgated a new 24-hour and new annual standard for fine PM, which applies to particles with an aerodyna mic diameter less than or equal to 2.5 micrometers (denoted as PM 2.5 ). The annual PM 2.5 standard was set at 15 micrograms per cubic meter ( μ g/m 3 ) and the 24-hour standard was set at 65 μ g/m 3 . On October 17, 2006, we published revised standa rds for PM (71 FR 61144). For PM 2.5 the annual standard

of 15 μ g/m 3 was retained and the 24-hour standard was revised to 35 μ g/m 3 . For PM 10 the annual

standard was revoked and the 24-hour standard (150 μ g/m 3 ) was retained. Under section 110(a)(1) of the Act, all states are require d to submit plans to provide for the implementation, maintenance and enforcemen t of each NAAQS within 3 years following the promulgation of the NAAQS, or within such sh orter period as EPA may prescribe. Section 110(a)(2) lists 14 elements that must be includ ed in these state implementation plan (SIP) submissions. The requirements include SIP “infrast ructure” elements such as requirements for air pollution control measures and monitoring that are designed to assure attainment, maintenance and enforcement of the NAAQS. Th e statutory language in sections 110(a)(1) and (2) is provided in the docket for this rulemaking. On October 2, 2007, we issued “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and 1997 PM 2.5 National Ambient Air Quality Standards,” Memorandum from William T. Harn ett, Director, Air Quality Policy Division (AQPD), Office of Air Quality Planning and Standards (OAQPS). 1 On September 25, 2009, we issued “Guidance on SIP Elements Required U nder Sections 110(a)(l) and (2) for the 2006 24- Hour Fine Particle (PM2.5) National Ambient Air Quality Standards (NAAQS),” Memorandum also from William T. Harnett, Director, AQPD, OAQPS. Each of these guidance memos addresses the SIP elements found in 110(a)(2). However, the October 2, 2007 Guidance does not address section 110(a)(2)(D)(i) (d ealing with interstate transpor t), which is being addressed separately. 2 In each of these guidance memos, the guidan ce states that to the extent that existing SIPs already meet the requirements, stat es need only certify that fact to us. On March 28, 2008, the State of Arkansas submitte d a letter to EPA stating that Arkansas evaluated its existing SIP for implemen tation of the 1997 8-hour ozone and PM 2.5 NAAQS. In the letter, the Stat e certified that the Arkansas SIP meets the requirements in sections 110(a)(1) and (2) of the CAA and is c onsistent with the “Guidance on SIP Elements Required Under Section 110(a)(1) and (2) for the 1997 8-hour Ozone and PM 2.5 National Ambient Air Quality Standards,” issued by EPA on October 2, 2007. An enclosure to the letter provided information on Arkansas SIP provisions suppor ting the 110(a)(2) requirements. On September 16, 2009, the ADEQ submitted a lette r to fulfill its infrastructure SIP obligations for the 2006 PM 2.5 NAAQS. An enclosure to the letter provided information on Arkansas SIP provisions supporting the 110(a)(2) elements. The submittal was deemed complete by action of law six months after the submittal was received by EPA.

1 This and any other guidance documents referenced in this action are in the docket for this rulemaking.

2 EPA finalized a FIP on July 6, 2011, to limit emissions of ozone precursors and PM that affect the ability of

downwind states to attain the 1997 ozone and 1997 and 2006 PM 2.5 NAAQS (76 FR 48208, August 8, 2011). Known as EPA’s Cross-State Air Pollution Rule, it requires that Arkansas (and 26 other states in the eastern half of the United States) must significantly improve air quality by reducing power plant emissions that cross state lines and contribute to ground-level ozone and fine particle pollution in other states. For additional information, please see www.epa.gov/crossstaterule.3 On March 27, 2008, EPA published findings co ncerning whether States had made the 110(a)(2) submissions for the 1997 ozone NAAQS ( 73 FR 16205). In this action, EPA found that

Arkansas had made a submission that addresse d some, but not all, of the section 110(a)(2) requirements of the Act necessary to implem ent the 1997 8-hour ozone NAAQS. Specifically,

EPA found that Arkansas had failed to submit a SI P addressing changes to the part C PSD permit program required by the November 29, 2005 (70 FR 71612, page 71699) final rule that made

NO X a precursor for ozone in the part C regulations at 40 CFR 51.166 and in 40 CFR 52.21. This finding established a 24-month deadlin e for the promulgation by EPA of a Federal Implementation Plan (FIP) addressing these spec ific SIP elements, in accordance with section 110(c)(1). On October 22, 2008, EPA published findings concerning whether States had made the 110(a)(2) submissions for the 1997 PM 2.5 NAAQS (73 FR 62902). In th is action, EPA found that Arkansas had made a complete submission th at provides for the basic program elements specified in section 110(a)(2) of the Act necessary to implement the 1997 PM 2.5 NAAQS.

B. Section 110(a)(1) and (2) Transport SIP Elements As noted above, the infrastructure element rega rding interstate tran sport, 110(a)(2)(D)(i),

is not addressed in the 2007 Infrastructure SIP Guidance. On August 15, 2006, EPA issued its “Guidance for State Implementation Plan (SIP ) Submission to Meet Current Outstanding Obligations Under Section 110(a)(2)( D)(i) for the 8-Hour Ozone and PM 2.5 National Ambient Air Quality Standards” (2006 Guidance). EPA developed the 2006 Guidance to make recommendations to states for making submi ssions to meet the requirements of section 110(a)(2)(D)(i) for the 1997 8-hour ozone and PM 2.5 standards. As identified in the 2006 Guidance, the “good neighbor” provisions in secti on 110(a)(2)(D)(i) require each state to submit a SIP that prohibits emissions that adversely affect another state in the ways contemplated in the statute. Section 110(a)(2)(D)(i)(I) and (II) contain four distinct requirements (or prongs) related to the impacts of interstate transport. The SI P must prevent sources in the state from emitting pollutants in amounts which will: (1) contribute significantly to nonattainment of the NAAQS in other states; (2) interfere with maintenance of the NAAQS in other states; (3) interfere with provisions to prevent significant dete rioration of air quality in othe r states; and (4) interfere with efforts to protect visi bility in other states. 3

On December 17, 2007, we received a SIP revisi on from the State of Arkansas intended to address the requirements of section 110(a)(2)(D)(i) for both the 1997 8-hour ozone and PM 2.5 standards. In this rulemaking we are addressing only the requireme nt that pertains to preventing sources in Arkansas from emitting pollutants that will interfere with measures required to prevent significant deterioration of air quality in other states. In its submission, Arkansas stated that its New Source Review (NSR) 4 program for major sources satis fies this requirement. With this submission, the state would meet the requir ement as contemplated in the 2006 Guidance for SIP submissions to meet this specif ic element in CAA 110(a)(2)(D)(i)(II). In a separate action, we have finalized a FI P, called the Cross-State Air Pollution Rule (CSAPR), which requires Arkansas (and 9 other stat es in the eastern half of the United States) to significantly improve air quality by reducing powe r plant emissions that cross state lines and

3 Section 110(a)(2)(D)(i)(I) addresses prongs (1) and (2); section 110(a)(2)(D)(i)(II) addresses prongs (3) and (4).

4 NSR refers to the statutory and regulatory programs th at regulate the construction and modification of stationary sources. A more detailed discussion is provided below in section II.3, regarding the program for enforcement of control measures, pursuant to section 110(a)(2)(C) of the Act.4 contribute to ground-level ozone in other states. 5 This FIP is intended to address section 110(a)(2)(D)(i)(I) for Arkansas, to prevent sources in Arkansas from emitting pollutants in amounts that will contribute signif icantly to nonattainment of th e NAAQS in other states and interfere with maintenance of the NAAQS in other states. We are not addressing section 110(a)(2)(D)(i)(I) in this action; see Sec tion II.4 below for additional information.

C. Legal Authority and Revisions to the Arkansas SIP The Arkansas Water and Air Pollution Control Act (AWAPCA), found in Title 8, Chapter 4 of the Arkansas Code Annotated (A.C .A) names the ADEQ as the State’s air pollution control agency and provides enforcement au thority to the ADEQ (37 FR 10841, May 31, 1972). ADEQ was originally created by the Arkansas General Assembly as the Arkansas Water Pollution Control Commission by Act 472 of 1949. Act 183 of 1965 changed the commission's

name to the Arkansas Pollution Control Commissi on (APCC) and gave it the power to regulate air pollution. A reorganization of state government in 1971 renamed the APCC to the Arkansas Pollution Control and Ecology Commission (APCEC), and created the Department of Pollution Control and Ecology as a cabinet-level agen cy headed by a director appointed by the Commission. In 1996, the Arkansas General Assembly voted to rename the Department of Pollution Control and Ecology to the Arkansas De partment of Environmental Quality, effective March 31, 1999. The Department is responsible for the day-to-day administration of the Commission’s regulations for a variet y of environmental programs. The APCEC has promulgated rules to limit and control emissions of among other things, PM, sulfur dioxide (SO 2 ), NOx and volatile organic compoun ds (VOCs). These rules include emission limits, control measures, permits, f ees, and compliance schedules and are found in APCEC Regulation 19, Regulation 26, and Regulation 31: Regula tion 19, Chapters 1, 3-5, 7, 8, 10, 13-15; Regulation 26, Chapters 1, 3 and 7; and Regulation 31, Chapters 1, 3, 4 and 8. To meet the infrastructure requirements of section 110(a)(2)(C) of the Act for the 1997 ozone standard, the EPA believes the State must ha ve updated its rules for PSD to treat NOx as a precursor to ozone (70 FR 71612, N ovember 29, 2005). PSD rules to treat NOx as a precursor to ozone are also required to meet the third inters tate transport prong, interference with provisions to prevent significant deteriorati on of air quality in other states. On February 17, 2010, the State submitted revisions that provided for NOx to be treated as a precursor to ozone formation in the State’s PSD program. We are pr oposing action on this revision to the PSD program that implements the provisions for NOx as a precurso r because EPA believes that this is a necessary provision for implementation of the 1997 ozone st andard. The 2010 submittal contains numerous revisions, including four that assi st the State in meeting the infrastructure requirements. Several

revisions in the 2010 submittal address the State’ s program for PSD that provide for nitrogen oxides (NOx) to be treated as a precursor to ozone formation in the State’s PSD SIP. The portions of the 2011 submittal that we are proposing for approval in this action are

evaluated in Attachment A to this TSD. We believe these are necessary provisions for implementation of the 1997 ozone standard, pursuan t to the Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standard - Phase 2 (70 FR 71612, published November 29, 2005). More detail is also pr ovided in Section II.3 below.

D. The Greenhouse Gas (GHG) Component

5 76 FR 48208.5 EPA has recently undertaken a seri es of actions pertaining to the regulation of GHGs that although for the most part distinct from one a nother, impact today’s proposed action on the

Arkansas SIP. Four of these actions include , as they are commonly called, the “Endangerment Finding” and “Cause or Cont ribute Finding” which EPA issued in a single final action, 6 the “Johnson Memo Reconsideration,” 7 the “Light-Duty Vehicle Rule,” 8 and the “Tailoring Rule.” 9
Taken together and in conjunction with the CAA, these actions established regulatory requirements for GHGs emitted from new motor vehicles and new motor vehicle engines; determined that such regulations, when they took effect on January 2, 2011, subjected GHGs emitted from stationary sources to permitting requirements for Prevention of Significant Deterioration (PSD); and limite d the applicability of PSD requirements to GHG sources on a phased-in basis. EPA took this last action in the Tailoring Rule which more specifically, established appropriate GHG emi ssion thresholds for determini ng the applicability of PSD requirements to GHG-emitting sources. However, Arkansas did not address or provide adequate legal authority for the GHG program’s application to all po llutants that would become newly subject to regulation in the future, including non-NAAQS pollutants, among th em GHGs. On this basis, EPA on December 13, 2010 issued a finding that Arkansas’ SIP wa s substantially inadequate to meet CAA requirements because it does not apply PSD requirements to GHG-emitting sources (75 FR 77698). This rulemaking also issued a “SIP call” to Arkansas, requiring the st ate to revise its SIP as necessary to correct the inadequacies. The SIP call established a deadline of December 22,

2010 for Arkansas to submit its co rrective SIP revision. In response to EPA’s proposal of the SIP call (75 FR 53892), the state declin ed the twelve month deadline for SIP revision following the finding of substantial inadequacy in order to ensure that PSD permitting authority for newly constructed or modified sources remain in place. 10 As required following the SIP call, EPA promulgated a Federal Implementation Plan (FIP ) to establish a PSD permitting program in Arkansas for GHG-emitting sources (75 FR 82246). EPA took these actions through final rulemaking, effective upon publication, to ensure the availability of a permitting authority – EPA – in Arkansas for GHG-emitting sources when they became subject to PSD on January 2, 2011. The FIP allowed those sources to proceed with plans to construct or expand. As we discuss further in Section II.3 below, the current EPA-approved SIP PSD program does not apply to GHG-emitting sources th at emit at or above the levels of emissions set in the Tailoring Rule, or at other appropriate levels. Thus, the Arkansas SIP does not satisfy portions

of elements within the infrastr ucture and transport requirements as they pertain to GHGs.

II. SIP elements required under Section 110( a)(2) for the 1997 8-hour ozone and fine particulate matter NAAQS, the Stat e submittals and EPA analysis

6 “Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act.” 74 FR 66496 (December 15, 2009).

7 “Interpretation of Regulations that Determine Pollutants Covered by Clean Air Act Permitting Programs.” 75 FR 17004 (April 2, 2010).

8 “Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards; Final Rule.” 75 FR 25324 (May 7, 2010).

9 Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule; Final Rule.” 75 FR 31514 (June 3, 2010).

10 See letter from Teresa Marks to Lisa P. Jackson, date d October 1, 2010, in the docket for this rulemaking.6 The federally approved SIP for each state is lis ted in Title 40, Part 52, of the US Code of Federal Regulations (denoted 40 CFR 52). The first section in this subpart for any state is the “Identification of plan.” The Identification of plan lists the EPA-approved provisions of the SIP for each state, as provided under section 110 of the Act, 42 U.S.C. 7410, and 40 CFR 51 to meet the NAAQS. The status of the Arka nsas SIP is provided in 40 CFR Part 52, Subpart E, sections 170 to 200. The Identification of plan for Arkans as is in section 170; this constitutes the applicable SIP for Arkansas, for purposes of the Act.

Per the General Preamble to the 1990 Clean Air Act Amendments (April 16, 1992 at 57 FR 13498), section 110(a)(2) sets forth elements th at a SIP must contain in order to be fully approved. 11 Below we examine the elements required in section 110(a)(2) and the documentation provided by the ADEQ. Where it is us eful, we include tables showing the date that the applicable state rules were approved by EPA into the SIP.

1. Enforceable emission limits and other control measures: Section 110(a)(2)(A) requires

SIPs to include enforceable emission limits a nd other control measures, means or techniques, schedules for compliance and other related matte rs. EPA notes that the specific nonattainment area plan requirements of secti on 110(a)(2)(I) are subj ect to the timing requirement of section 172 (non-attainment plan provisions).

The State’s response : Arkansas’s enforceable emission lim itations and other control measures

are covered in the Arkansas Water and Air Po llution Control Act, Arka nsas Code Annotated (A.C.A.) § 8-4-101 et seq., and those provisions of the Arkans as Pollution Control and Ecology Commission’s Regulation 19, Regulations of the Arkansas Plan of Implementation of Air

Pollution Control listed in 40 CFR 52.170.

The regulations in the Arkansas Pollution C ontrol and Ecology Comm ission’s Regulation 19, Regulations of the Arkansas Plan of Implementa tion for Air Pollution Control, are duly adopted by the Arkansas Pollution Contro l and Ecology Commission. Where these provisions relate to section 110 requirements, SIP revisions have been submitted to and approved by EPA. EPAapproved SIP revisions are codi fied at 40 CFR Part 52, Subpart E. Arkansas has an EPAapproved air permitting program for both major a nd minor facilities, which ensures that all applicable requirements are included in the facility permit.

EPA analysis : Section 110(a)(2)(A) require s that all measures and other elements in the SIP be enforceable. This subsection also authorizes SIPs to contain certain nontraditional techniques for reducing pollution – economic incen tives, marketable permits, and auctions of emissions rights. The EPA reads this language to require even these other means of achieving reductions to be

enforceable. 12 The federally approved Arkansas SIP incl udes a variety of measures to reduce PM and precursors to ozone, which are summarized in the following paragraphs and listed in Table 1 below. Once adopted into the SIP, the measures are enforceable by the state and EPA, and US citizens are offered legal recourse to address violations as described in section 304 of the Act.

The Arkansas Water and Air Pollution Cont rol Act (AWAPCA) names the ADEQ as the State’s air pollution control agency and provide s enforcement authority to the ADEQ. We

11 The discussion of section 110(a)(2), subsections (A) through (M) begins on p. 13556 of the General Preamble.

12 General Preamble to the 1990 Clean Air Act Amendments (April 16, 1992 at 57 FR 13498, p. 13556)7 reviewed the AR SIP and found state rules to implement and enforce the 1997 ozone and PM NAAQS, and limit or reduce emissions of these po llutants. These rules include programs for banking and trading of emissions, as well as permits and fees. We are including a list of sections

from the AWAPCA and Arkansas Code Annotated (A.C.A.), as well as chapters from APCEC Regulations 9 (Fee Regulations), 19 (Regulations of the Arkansas Plan of Implementation for Air Pollution Control), 26 (Regulations of the Ar kansas Operating Air Permit Program), and 31 (Nonattainment New Source Review Requirements) as relevant in meeting the requirements of section 110(a)(2)(A). These sections were a pproved by EPA into the AR SIP (see Table 1 below) and thus are federally enforceable.

Arkansas Code Annotated

Section 8-1-202 – Powers of the Director of the Arkansas Department of Environmental Quality Section 8-4-311 – Powers generally

APCEC Regulation 9: Fee Regulations Chapter 5 – Air Permit Fees

APCEC Regulation 19: Re gulations of the Arkansas Plan of Implementation for Air Pollution

Control Chapter 1 – Title, Intent and Purpose Chapter 3 – Protection of the Natio nal Ambient Air Quality Standards Chapter 4 – Minor Source Review Chapter 5 – General Emissions Limi tations Applicable to Equipment Chapter 7 – Sampling, Monitori ng, and Reporting Requirements Chapter 8 – 111(d) Designated Facilities Chapter 9 – Prevention of Significant Deterioration Chapter 10 – Regulations for the Control of Vo latile Organic Compounds in Pulaski County Chapter 13 – Stage I Vapor Recovery Chapter 14 – CAIR NOx Ozone Season Tr ading Program General Provisions Chapter 15 – Regional Haze

APCEC Regulation 26: Regul ations of the Arkansas Operating Air Permit Program Chapter 1 – Title and Purpose Chapter 3 – Requirement fo r a Permit, Applicability Chapter 7 – Permit Content Chapter 11 – Permit Fees

APCEC Regulation 31: Nonattainment New Source Review Requirements Chapter 1 – Title, Intent and Purpose Chapter 3 – Preconstruction Review Chapter 4 – Applicability Tests Chapter 8 – Actual PALs

A.C.A. Section 8-4-311 identifies the ADEQ as having the power to “(d)evelop and effectuate a comprehensive program for prevention and control of all sources of pollution of the air...” within the State of Arkansas, as well as having the power to “(a)dminister and enforce all8 laws and regulations relati ng to pollution of the air”. Further, A.C.A. Section 8-1-202 identifies the Director of the Arkansas Department of E nvironmental Quality as the executive officer and active administrator of all air polluti on control activities in the state. This section also sets forth the powers of this administrative authority as “ (t) he administration of permitting, licensing, certification, and grants programs deemed necessary to protect the environmental integrity of the

state”. Chapter 3 of APCEC Regulation 26 establishes requirement for part 70 (title V) permits, and applicability (emissions, emissions units and fugitive emissions subject to permitting); Chapter 5 of APCEC Regulation 9 establishes the means and formulas for implementation of air permit fees for part 70 (title V) , non-part 70, and general permits. APCEC Regulation 19, Regulations of the Arkansas Plan of Implementation for Air

Pollution Control , comprises the main structure of Arkans as’s state air quality regulations. It establishes applicability of the air pollution cont rol plan to any stationa ry source which has the potential to emit any federally re gulated air pollutant (Chapter 1), establishes the primary and secondary ambient air quality standards (by reference to 40 CFR Part 50), and defines responsibilities of the Department and regulat ed sources in meeting and maintaining the NAAQS, as well as listing Federal programs dele gated to the Department for major sources (Chapter 3). The criteria for minor source review, includi ng approval criteria, application processes, and revision processes are se t forth in Regulation 19, Chapte r 4. Regulation 19, Chapter 9 establishes acceptance of delega tion by the EPA of authority fo r enforcement of regulations governing the prevention of signifi cant deterioration of air qual ity and regulations governing the protection of visibility in manda tory Class I federal areas. Regul ation 19, Chapter 7 defines the powers of the Department in requiring sampli ng, monitoring, and reporting requirements at stationary sources. Emissions limitations for specific sources/proce sses within Pulaski County are contained within Regulation 19, Chapter 10. This chapter establishes testing and reporting requirements, RACT, permits and compliance schedules, and provisions for gasoline storage/marketing, petroleum liquid storage, cutback asphalt, gasoli ne tank trucks and vapor collection systems, surface coating of metal parts and products, and ex ternal floating roof storage. Regulation 19, Chapter 5 defines the general federally regulated ai r pollutant emissions limitations applicable to all equipment subject to the Arkansas air qua lity control plan, and Regulation 19, Chapter 8 establishes regulations for designated pollutants emitted from designated facilities in accordance with Section 111(d) of the CAA, including emissi on limitations for specific sulfuric acid plants and kraft pulp mills in Arkansas. Regulation 19, Chapter 13 limits emissions of VOCs from gasoline stored in stationary di spensing tanks and from gasoline delivered into such tanks in

nonattainment areas. Regulation 19, Chapter 14 includes the Clean Ai r Interstate Rule (CAIR) requirements,

which are intended to reduce NOx emissions from Arkansas that are contributing to

nonattainment of the 1997 ozone NAAQS in downwind states. 13
Regulation 31, Nonattainment New Source Review Requirements , establishes NNSR requirements and applicability (Chapter 1) , preconstruction review requirements and management of Zones Targeted for Economic Development pursuant to 173(a)(1)(B) of the

13 NOx and volatile organic compounds (VOCs) are precur sors to ozone. PM can be emitted directly and secondarily formed; the latter is the result of NOx and SO 2 precursors combining with ammonia to form ammonium

nitrate and ammonium sulfate.9 CAA (Chapter 3), applicability test procedures and criteria (Chapter 4), and NNSR Plantwide Applicability Limits (PALs) criteria.

The rules listed above at A.C.A. Secti on 8-1-202 & 8-4-311, Regulation 9, Chapter 5, Regulation 19, Chapters 1, 3-5, 7-10, 13, 14, Regulation 26, Chapter 3, and Regulation 31, Chapters 1, 3, 4 and 8 were approved by EPA for a doption into the SIP and thus are enforceable by the State and EPA. We are proposing that the Arkansas SIP meets the requirements of section 110(a)(2)(A).

Table 1: Arkansas rules relevant to meeting section 110(a)(2)(A):

Section of SIP Referenced in Arkansas’s

Submittal EPA Approval/FR Citation

A.C.A., Section 8-1-202 April 12, 2007 at 72 FR 18394
A.C.A., Section 8-4-311 April 12, 2007 at 72 FR 18394

Regulation 9, Chapter 5 Nove mber 12, 1986 at 51 FR 40975

Regulation 19, Chapter 1 Oc tober 16, 2000 at 65 FR 61108 April 12, 2007 at 72 FR 18394 Regulation 19, Chapter 3 Oc tober 16, 2000 at 65 FR 61108 April 12, 2007 at 72 FR 18394 Regulation 19, Chapter 4 Oc tober 16, 2000 at 65 FR 61108 April 12, 2007 at 72 FR 18394 Regulation 19, Chapter 5 Oc tober 16, 2000 at 65 FR 61108 April 12, 2007 at 72 FR 18394 Regulation 19, Chapter 7 Oc tober 16, 2000 at 65 FR 61108 April 12, 2007 at 72 FR 18394 Regulation 19, Chapter 8 April 12, 2007 at 72 FR 18394 Regulation 19, Chapter 9 Oc tober 16, 2000 at 65 FR 61108 April 12, 2007 at 72 FR 18394 Regulation 19, Chapter 10 October 16, 2000 at 65 FR 61108 April 12, 2007 at 72 FR 18394 Regulation 19, Chapter 13 April 12, 2007 at 72 FR 18394

Regulation 19, Chapter 14 Sept ember 26, 2007 at 72 FR 54556

Regulation 26, Chapter 3 Oc tober 16, 2000 at 65 FR 61108 October 9, 2001 at 66 FR 51312

Regulation 31, Chapter 1 April 12, 2007 at 72 FR 18394 Regulation 31, Chapter 3 April 12, 2007 at 72 FR 18394 Regulation 31, Chapter 4 April 12, 2007 at 72 FR 18394 Regulation 31, Chapter 8 April 12, 2007 at 72 FR 1839410 2. Ambient air quality monitori ng and data analysis system : Section 110(a)(2)(B) requires SIPs to include provisions for establishment and operation of ambient air quality monitors, collecting and analyzing ambient air quality data, and making these data available to EPA upon

request.

The State’s response : The Arkansas Pollution Control and Ecology Commission’s Regulation Number 19, Regulations of the Ar kansas Plan of Implementation for Air Pollution Control, Reg. 19.302 grants the Arkansas Department of Envi ronmental Quality (ADEQ) responsibility for ambient air monitoring as a precaution to prevent the NAAQS from being exceeded.

A.C.A. § 8-1-202 grants the ADEQ Director author ity to provide technical and legal expertise

and assistance in the field of environmental protection. A.C.A. § 8-4-311(a)(3) empowers ADEQ to encourage and conduct studies, investigations, and research re lating to air po llution and its causes, prevention, control, and abatement.

EPA analysis : EPA historically has promulgated regula tions in 40 CFR 58 (A mbient Air Quality Surveillance), indicating the necessary data states need to collect and submit as part of their SIP. As the state air pollution contro l agency, the ADEQ maintains a ne twork of air quality monitors per 40 CFR 58.3(a). The air quality surveillanc e network undergoes annu al review and EPA approval of the current network was completed on January 20, 2011. 14 These monitors meet the technical requirements of 40 CF R 58, Subpart B. The ADEQ webs ite posts past and current

concentrations of PM 2.5 and ozone measured by their network of monitors. The State submits air monitoring data to EPA quarterly and certifies the data annually. The rules at Regulation 19, Chapters 3 and 7 address air monitoring requirements for owners or operators of proposed sources pursuan t to 40 CFR 58.3(c) and are evaluated in Section II.6 below, regarding stationary source emi ssions monitoring and re porting, pursuant to the requirements of section 110(a)(2)(F) of the Act. We are proposing that the Ar kansas SIP meets the requireme nts of section 110(a)(2)(B).

3. Program for enforcement of control measures : Section 110(a)(2)(C) requires states to include a program providing for enforcement of th e measures described in subparagraph (A), and the regulation of the modification and constructio n of any stationary source within the areas covered by the SIP as necessary to assure th at the NAAQS are achieved, including a permit program as required in part C.

The State's response : Chapter 4, Minor Source Review, of the Arkansas Pollution Control and Ecology Commission’s Regulation 19, Re gulations of the Arkansas Plan of Implementation for Air Pollution Control describes the regulation of the operation, modificati on and construction of stationary sources.

Chapter 9, Prevention of Significant Deteriorat ion, of the Arkansas Pollution Control and Ecology Commission’s Regulation 19, Re gulations of the Arkansas Plan of Implementation for Air Pollution Control concerns authority for enfo rcement of regulations governing the prevention of significant deterioration of ai r quality and regulations governing th e protection of visibility in mandatory federal Class I Areas.

14 A copy of our approval letter is in the docket for this rulemaking.11 A.C.A. § 8-4-203(a)(1) authorizes ADEQ to issue, continue in effect, revoke, modify, or deny permits to prevent, control, or abate pollu tion. A.C.A. § 8-4-311(a)(1) empowers ADEQ to develop and effectuate a comprehensive program fo r the prevention and cont rol of all sources of pollution of the air; A.C.A. § 8-4-311(a)(7) empow ers ADEQ to administer and enforce all laws and regulations relating to pollu tion of the air; A.C.A. § 8- 4-311(a)(10) empowers ADEQ to make, issue, modify, revoke, and enforce orders prohibiting, controlling or abating air pollution and requiring the adoption of remedial measures to prevent, control, or abate air pollution.

EPA analysis : Regarding a program for enforcement of control measures, as stated previously, the AWAPCA provides the ADEQ with authority to enforce the state’s environmental quality rules. The ADEQ establ ished rules governing emissions of the NAAQS and their precursors throughout the State and these rules are in the federally enforceable SIP. The rules in Regulation 19, Chapters 1, 3-5, 7-10, 13 and 14; Regulation 26, Chapter 3; and Regulation 31, Chapters 1, 3, 4 and 8 include al lowable rates, compliance, control plan requirements, actual and allowable emissi ons, monitoring and testing requirements, recordkeeping and reporting requirements, and control schedules. These rules clarify the boundaries beyond which regulated entities in Ar kansas can expect enforcement action. The statutory and regulatory programs that regulate the constructi on and modification of major stationary sources in nonattainment and attainment/unclassifiable areas are termed New Source Review (NSR) and are provided under pa rts C and D of the Act, and 40 CFR 51.166. Part C of the Act requires prevention of significant deterioration of air qua lity (PSD). The PSD program regulates the construction of any new ma jor stationary source or major modification at existing stationary sources located in areas meeting the NAAQS. Such areas are designated as

attainment/unclassifiable. In a nonattainment ar ea, any stationary pollutant source with the potential to emit 100 tons per year or more of any regulated NSR pollutant is considered a major stationary source. In PSD areas the cutoff le vel may be either 100 tpy or 250 tpy, depending upon the source. 15 These sources are required by the Act to obtain an air pollution permit before beginning construction. Minor NSR is for pollutants from stationa ry sources that do not require PSD or nonattainment NSR (NNSR) permits. The purpose of minor NSR permits is to prevent the

construction of sources that would interfere wi th attainment or maintenance of a NAAQS or violate the control strategy in nonattainment ar eas. Also, minor NSR permits often contain permit conditions to limit the sources emissions to avoid PSD or NNSR. Section 110(a)(2)(C) creates “a general duty on States to include a pr ogram in their SIP that regulates the modification and construction of any stationary source as necessary to assure that the NAAQS are achieved” (70 FR 71612, 71677). EPA provides states with a “b road degree of discretion” in implementing their minor NSR programs (71 FR 48696, 48700). The “considerably less de tailed” regulations for minor NSR are provided in 40 CFR 51.160 through 51.164. EPA has determined that Arkansas’ minor NSR program adopted pursuant to section 110(a)(2)(C) of the Act regulates emissions of ozone and its precursors and PM. Arkansas’ minor source permitting requirements are contained at APCEC Regulation 19, Chapter 4 and were approved at 65 FR 61103. The SIP continues to require preconstruction permits for minor sources and minor modifications. Arkansas’s PSD program was initially appr oved into the SIP on January 14, 1982 (47 FR 02112). Subsequent revisions to Arkansas’s PSD program were approved into the SIP on

15 See section 169(1) of the Act for the types of sources in each of the 100 tpy and 250 tpy categories.12 February 10, 1986 (51 FR 04910), May 2, 1991 (56 FR 20137), October 16, 2000 (65 FR 61103), and April 12, 2007 (72 FR 18394). EPA recently promulgated the increments, significant impact levels and significa nt monitoring concentration for PM 2.5 (75 FR 64864, October 20, 2010) and these increments will become applicable on October 20, 2011. EPA fully approved into the Arkansas SIP plans to implement the Nonattainment NSR (NNSR) provisions of the Act on April 12, 2007 (72 FR 18394). The State of Arkansas submitted a SIP revision to EPA dated February 17, 2010 to meet requirements of the 8-hour ozone NAAQS by inco rporating NOx as a precursor for ozone. The submitted SIP revision to add NOx as a precursor for ozone are listed in Table 2 below and include the following:

1. The substantive change adding NOx to the definition of Major Modification through incorporation by reference of 40 CFR 52.21( b) and 40 CFR 51.301 as of November 29,

2005.

2. The substantive change adding NOx to the definition of Major Stationary Source through incorporation by reference of 40 CFR 52.21( b) and 40 CFR 51.301 as of November 29,

2005.

3. The substantive change adding NOx as a pr ecursor to the table's criteria and other pollutants listing for ozone through incorpor ation by reference of 40 CFR 52.21(b)(23)(i)

4. The substantive change allowing for an exemp tion with respect to ozone monitoring for a

source with a net emissions increase less th an 100 tpy of NOx th rough incorporation by reference of 40 CFR 52.21(i)(5)(i). The February 17, 2010 revisions to the defini tions in the Arkansas rules for “major modification” and “major stationary source” meet the federal definition in 40 CFR 52.21(b) to identify a major source of NOx as a major s ource for ozone. The February 17, 2010 revisions to

the Arkansas rules also meet the federal defi nition in 40 CFR 52.21(b)(50)(i) for inclusion of NOx as an ozone precursor. The February 17,2010 revisions to the emission rate for ozone under

the definition for Significant in the Arkansas rules also meet the federal requirements in 40 CFR 52.21(b)(23)(i), which establishes these emissi on thresholds as 40 tpy. The February 17, 2010 revisions allowing for an exemption with respec t to ozone monitoring for a source with a net emissions increase less than 100 tpy of NOx al so meet the federal re quirement on monitoring exemptions under the footnote for 40 CFR 52.21(i) (5)(i). Because of thei r consistency with 40 CFR 52.21, which provides the requirements for an approvable PSD program, EPA believes these revisions are consistent with 110(l) a nd the revisions would not interfere with any applicable standard. Therefore, EPA is proposi ng to approve these revisions as meeting the requirements of section 110 of the Act and 40 CFR 52.21 for establishing NOx emissions as a precursor for ozone. To implement section 110( a)(2)(C) for the 1997 and 2006 PM 2.5 standards, states were required to submit SIP revisions for the implementation of the PSD and nonattainment NSR program for the PM 2.5 standard by May 16, 2011 (see 73 FR 28321, May 16, 2008). Because the State has failed to adop t and submit the required PM 2.5 PSD rules, we are proposing to find that

the current Arkansas PSD SIP does not meet the requirements of section 110(a)(2)(C) with respect to the implementation of th e PSD NSR program for the 1997 and 2006 PM 2.5 NAAQS. As noted in Section I.D above, the curre nt EPA-approved SIP PSD program does not apply to GHG-emitting sources that emit at or abov e the levels of emissions set in the Tailoring Rule, or at other appropriate levels. Thus, the Arkansas SIP does not satisfy this portion of section 110(a)(2)(C). We are pr oposing to disapprove this portion of the Arkansas SIP for13 failing to meet the infrastructure requir ements for the 1997 ozone and the 1997 and 2006 PM 2.5 NAAQS with respect to the GHG requirement of s ection 110(a)(2)(C). EP A’s disapproval here does not engender an additional statutory obligation, because EPA has already promulgated a FIP for the Arkansas PSD program to address permitting GHGs at or above the Tailoring Rule thresholds (75 FR 82246). This FIP will remain in place until Arkansas submits and EPA approves revisions that addr ess the disapproved elements. We are proposing to approve the Arkansas infrastructure SIP for the 1997 ozone NAAQS with respect to section 110(a)(2 )(C), except as it relates to GHGs.

Table 2: Arkansas SIP Revisions that Add ress CAA 110(a)(2) Infrastructure Requirements

Annotation of Submitted Revisions to APCEC Regulation 19, Chapter 9 – Prevention of Significant Deterioration Comments

Current SIP Approved 4/12/2007 Under Review – Rev submitted 2/17/2010 Reg. 19.903 (Definitions) (B) All other terms used herein shall have the same meaning as set forth in chapter 2 or in 40 CFR 52.21(b) [PSD] and 40 CFR 51.301 [Protection of Visibility] all as in effect upon the latest date of amendment of this supplement, unless manifestly

inconsistent with the context in which they are used. Wherever there is a

difference between the definitions in chapter 2 and those listed in 40 CFR 52.21(b) and 40 CFR 51.301, the federal definitions as listed in 40 CFR 52.21(b) and 40 CFR 51.301 shall apply. B) All other terms used herein shall have the same meaning as set forth in C c hapter 2 of Regulation 19 or in 40 CFR 52.21(b) [PSD] and 40 CFR 51.301 [Protection of Visibility] as of November 29, 2005, all as in effect upon

the latest date of amendment of this supplement, unless manifestly inconsistent with the context in which they are used.

Wherever there is a difference between the

definitions in C c hapter 2 of Regulation 19 and those listed in 40 CFR 52.21(b) and 40 CFR 51.301, the federal definitions as listed in 40 CFR 52.21(b) and 40 CFR 51.301 as of November 29, 2005, shall apply. Incorporation of 40 CFR 52.21(b) by

reference as of November 29, 2005 captures the addition

of NOx to the

definitions of Major Modification and Major Stationary

Source.

Reg. 19.904 (Adoption of Regulations) (A) Except where manifestly inconsistent with the provisions of the Clean Air Act, as amended, or with federal regulations adopted pursuant thereto, and as amended specifically herein by paragraphs (B), (C), (D), (E), and (F) of this section, the Arkansas Department of Environmental Quality shall have those responsibilities and that authority, with reference to the State of Arkansas, granted to the

Administrator of the U.S. Environmental Protection Agency under 40 CFR 52.21(a)(2) through (bb), as in effect on July 23, 2004, which are hereby incorporated herein by reference, with the exception of 40 CFR 52.21(b)(55-58), 40 CFR 52.21(i)(9), and 40 CFR 52.21(cc), which are not incorporated. In the absence of a specific imposition of responsibility or grant of authority, the Department shall be deemed to have that responsibility and authority necessary to attain the purposes of the Plan, these PSD regulations, and (A) Except where manifestly inconsistent with the provisions of the Clean Air Act, as amended, or with federal regulations adopted pursuant thereto, and as amended specifically herein by paragraphs (B), (C), (D), (E), and (F) of Reg.19.904 this section , the Arkansas Department of Environmental Quality shall have those responsibilities and that authority, with reference to the State of Arkansas, granted to the Administrator of the EPA U.S.

Envir onmental Protection Agency under 40 CFR 52.21(a)(2) through (bb), as in effect on November 29, 2005 July 23, 2004 , which are hereby incorporated herein by reference, with the exception of 40 CFR 52.21(b)(55-58), 40 CFR 52.21(i)(9), and 40 CFR 52.21(cc), which are not incorporated. In the absence of a specific imposition of responsibility or grant of authority, the Department shall be deemed to have that responsibility and authority necessary to attain the purposes of the Plan, these PSD regulations, and the applicable federal regulations, as incorporated herein by Incorporation of 40 CFR 52.21(a)(2) through (bb) by

reference as of November 29, 2005 captures the addition

of NOx to the

Pollutant and

Emissions Rate table criteria (40 CFR 52.21(b)(23)(i)), and the exemption with

respect to ozone monitoring for a

source with a net

emissions increase less than 100 tpy of NOx (40 CFR 52.21(i)(5)(i)).14 the applicable federal regulations, as incorporated herein by reference. reference.

Table 3: Arkansas rules relevant to meeting section 110(a)(2)(C):

Section of SIP Referenced in Arkansas’s

Submittal EPA Approval/FR Citation

Regulation 19, Chapter 1 Oc tober 16, 2000 at 65 FR 61108 April 12, 2007 at 72 FR 18394 Regulation 19, Chapter 3 Oc tober 16, 2000 at 65 FR 61108 April 12, 2007 at 72 FR 18394 Regulation 19, Chapter 4 Oc tober 16, 2000 at 65 FR 61108 April 12, 2007 at 72 FR 18394 Regulation 19, Chapter 5 Oc tober 16, 2000 at 65 FR 61108 April 12, 2007 at 72 FR 18394 Regulation 19, Chapter 7 Oc tober 16, 2000 at 65 FR 61108 April 12, 2007 at 72 FR 18394 Regulation 19, Chapter 8 April 12, 2007 at 72 FR 18394 Regulation 19, Chapter 9 Oc tober 16, 2000 at 65 FR 61108 April 12, 2007 at 72 FR 18394 Regulation 19, Chapter 10 October 16, 2000 at 65 FR 61108 April 12, 2007 at 72 FR 18394 Regulation 19, Chapter 13 April 12, 2007 at 72 FR 18394 Regulation 19, Chapter 14 Sept ember 26, 2007 at 72 FR 54556

Regulation 26, Chapter 3 Oc tober 16, 2000 at 65 FR 61108 October 9, 2001 at 66 FR 51312

Regulation 31, Chapter 1 April 12, 2007 at 72 FR 18394

Regulation 31, Chapter 3 April 12, 2007 at 72 FR 18394 Regulation 31, Chapter 4 April 12, 2007 at 72 FR 18394 Regulation 31, Chapter 8 April 12, 2007 at 72 FR 18394

4. Interstate transport, and interstate and international pollution abatement : Section 110(a)(2)(D) is divided into two components, 110(a)(2)(D)(i) and 110( a)(2)(D)(ii). Section 110(a)(2)(D)(i) addresses in terstate transport and requires SIPs to include provisions prohibiting any source or other type of emi ssions activity in one state from contributing significantly to nonattainment, interfering with ma intenance of the NAAQS in another state, or from interfering with measures required to prevent significant deterior ation of air quality or to protect visibility in another state. Section 110(a)(2)(D )(ii) addresses interstate and international pollution abatement, and requires SIPs to include provisions insuri ng compliance with sections 115 and 126 of the Act, relating to interstate and international pollution abatement.15 The State's response : Arkansas has adopted, and EPA appr oved the Arkansas Pollution Control and Ecology Commission’s Regulat ion 19, Regulations of the Arka nsas Plan of Implementation for Air Pollution Control, Chapter 14 (72 FR 54556), and is in the process of submitting additional requirements related to the federal Clean Air Interstate Ru le. A SIP revision pertaining only to §110(a)(2)(D)(i) is being subm itted separately. Arkansas is not currently subject to requirements under Section 115 and Section 126.

A.C.A. § 8-4-311(a)(2) authorizes ADEQ to advise , consult, and cooperate with other agencies of the state, political subdivisions, industries, other states, the federal government, and with affected groups to control or abate air pollution and to prevent new air pollution.

A.C.A. § 8-4-311(a)(8) authorizes ADEQ to repres ent the state in all matters pertaining to the plans, procedures, or negotiations for interstate compacts in relation to air pollution control.

EPA analysis : Interstate transport, 110(a)(2)(D)(i): As noted above, the inters tate transport portion of section 110(a)(2)(D)(i) prohibits a ny source or other type of emi ssions activity within the State from emitting any air pollutant in amounts wh ich will (I) contribute significantly to nonattainment in, or interfere with maintenance by, a ny other State with respec t to any such national primary or secondary ambient air quality standard, or (II) interfere with m easures required to be included in the applicable implementation plan for any other State under part C of this subchapter to prevent significant deterioration of air quality or to protect visibility. On December 17, 2007, we received a SIP revisi on from Arkansas intended to address the requirements of section 110(a)(2)(D )(i) for both the 1997 8-hour ozone and 1997 PM 2.5 standards. In its submission, Arkansas stated th at its NSR program for major sources satisfies this requirement. As noted in Section II.3 above , Arkansas has an approved NSR program (72 FR 18394). With the December 17, 2007 submission, the state would meet the element under section 110(a)(2)(D)(i)(II) for the 1997 8-hour ozone NAAQS that prohibits sources from emitting pollutants that will interfere with measures required to prevent significant deterioration of air quality in other states, except as they relate to GHGs. We are proposing to disapprove the portion of the Arkansas Interstate Transport SI P provisions that addre ss the requirement of section 110(a)(2)(D)(i)(II), as it relates to GHGs, that emissions from sources in Arkansas do not interfere with measures required in the SIP of any other state unde r part C of the CAA to prevent significant deteriora tion of air quality.

The Arkansas SIP to address the Clean Air Interstate Rule (CAIR, approved into the Arkansas SIP at 72 FR 54556) and the revised Arkansas CAIR SIP (submitted September 16, 2009) will be evaluated in light of the EPA’s Cross-State Air Pollution Rule (CSAPR), which found that Arkansas (and 26 other states in the eastern half of the United States) must significantly improve air quality by reducing powe r plant emissions that cross state lines and contribute to ground-level oz one and fine particle po llution in other states. 16 The EPA addresses section 110(a)(2)(D)(i)(I) fo r Arkansas under the CSAPR. We will address the protection of visibility requirement of 110(a)(2)(D)(i)(II) when EPA completes its review of the Arkansas regi onal haze SIP revision submitted on July 29, 2008. We are proposing to approve the portion of the Arkansas Interstate Transport SIP provisions that address one requi rement of section 110(a)(2)(D)(i)(II) for the 1997 8-hour ozone

16 76 FR 4820816 NAAQS, that emissions from sources in Arkansas do not interfere with meas ures required in the SIP of any other state under part C of the CAA to prevent significant dete rioration of air quality, except as it relates to GHGs. We are proposing to disapprove the portion of the Arkansas Interstate Transport SIP provisions that address one requi rement of section 110(a)(2)(D)(i)(II) for the 1997 8-hour ozone NAAQS, that emissions from sources in Arkansas do not interfere with meas ures required in the SIP of any other state under part C of the CAA to prevent significant dete rioration of air quality,

as it relates to GHGs. We are also proposing to find that Arkansas does not meet the third prong of section 110(a)(2)(D)(i), because the current Arkansas PSD SIP does not meet the requirements of section 110(a)(2)(C) with respect to the implementa tion of the PSD NSR program for the 2006 PM 2.5 NAAQS.

Interstate and international pol lution abatement, 110(a)(2)(D)(ii): Section 115 of the Act addresses international air polluti on: (a) Endangerment of public health or welfare in foreign countries from pollution emitted in the United States; (b) Prevention or elimination of endangerment; and (c) Reciprocity. 17 Regarding section 115 of the Act, the Administrator has

neither received nor issued a fo rmal notification that emission s from Arkansas are endangering public health or welfare in a foreign country. Section 126(a) of the Act requires that each applicable implementation plan shall require eac h major proposed new or modified source to notify neighboring states of pot ential impacts from the source . The Arkansas SIP addresses

section 126 of the Act under their PSD rules at Regulation 19, Chapter 9, which were approved into the Arkansas SIP at (47 FR 02112, 51 FR 04910, 56 FR 20137, 65 FR 61103 and 72 FR 18394). The rules at Regulation 19, Chapter 9 addre ss, through incorporation by reference of 40 CFR 52.21(k)(1) “The owner or operator of the proposed source or modification shall

demonstrate that allowable emission increase s from the proposed source or modification, in conjunction with all other appli cable emissions increases or reductions (including secondary emissions), would not cause or contribute to air pollution in violati on of: (1) Any national ambient air quality standard in any air quality control region ”. These rules address section 126(a)(1)(A) and (B) of the Act. We are proposing that the Arkans as SIP meets the requirements of section 110(a)(2)(D)(ii) for the 1997 8-hour ozone NAAQS, except for the portion that addresses GHGs. We are proposing that the Arkansas SIP does not meet the requirements of section 110(a)(2)(D)(ii) for the 1997 8-hour ozone NAAQS, only as it relates to GHGs. EPA is also proposing to find that the Arkansas SI P does not meet the requirements of section 110(a)(2)(D)(ii) with resp ect to the 1997 and 2006 PM 2.5 NAAQS because the current Arkansas PSD SIP does not meet the requirements of section 110(a)(2)(C) with respect to the implementation of the PSD NSR program for the 1997 and 2006 PM 2.5 NAAQS. Section 126(b) of the Act provides that any st ate or political subdivision may petition the Administrator for a finding that any major source or group of stationary sources emits or would emit any air pollutant in violation of the prohibition of section 110(a)(2)(D)(ii) of this title or this section. Within 60 days after re ceipt of any petition under this subsection and after public hearing, the Administrator shall make such a fi nding or deny the petition. We have not been

17 Section 115(c) provides that this section shall apply only to a foreign country which the Administrator determines has given the United States essentially the same rights with respect to the prevention or control of air pollution occurring in that country as is given that country by this section.17 made aware of any such pending actions pursuan t to CAA section 126(b), thus we are proposing

that the Arkansas SIP meets this portion of sectio n 110(a)(2)(D)(ii).

5. Adequate resources and authority : Section 110(a)(2)(E) require s states to provide for adequate personnel, funding, and legal authority unde r state law to carry out its SIP and related

issues.

The State’s response : A.C.A. § 8-1-103 grants the Arka nsas Pollution Control and Ecology Commission the authority to establish, by regulati on, reasonable fees for initial issuance, annual review and modification of permits . ADEQ is authorized to colle ct the fees established by the Commission and shall deny the issuance of an ini tial permit, a renewal permit, or a modification permit if and when a facility fails or refu ses to pay the fees after reasonable notice.

A.C.A. § 8-1-202 states that the Director of the ADEQ’s duties include the day-to-day administration of all activities that the depart ment is empowered by law to perform, including, but not limited to, the employment and supervision of such technical, legal, and administrative staff, within approved appropriations , as is necessary to carry out the responsibilities vested with the department.

The Arkansas Pollution Control and Ecology Co mmission Regulation 9, Fee Regulation, Chapter 5, Air Permit Fees, contains the air permit fees a pplicable to non-part 70 permits, part 70 permits and general permits.

The requirements of §110(a)(2)(E)( ii) are not applicable because permit and enforcement orders are issued directly by ADEQ, not state boards or commissions.

The requirements of §110(a )(2)(E)(iii) are not applicable to Ar kansas because it does not rely on localities for specific SIP implementation.

EPA analysis : Each SIP must show that the state has legal authority to ca rry out the plan (40 CFR 51.230). Arkansas SIP revisions include a discussion on le gal authority, with reference to Title 8 (Environmental Law), Chapter 1 of the Ar kansas state statutes. The Arkansas Water and Air Pollution Control Act (AWAPCA), found in A.C.A. Title 8, Chapter 4 names the ADEQ as the State’s air pollution control agency and provides enforcement authority to the ADEQ (37 FR 10841, May 31, 1972). ADEQ was originally created by the Arkansas General Assembly as the

Arkansas Water Pollution Control Commi ssion by Act 472 of 1949. Act 183 of 1965 changed

the commission's name to the Arkansas Pollu tion Control Commission (A PCC) and gave it the power to regulate air polluti on. A reorganization of state gove rnment in 1971 renamed the APCC

to the Arkansas Pollution Control and Ec ology Commission (APCEC), and created the Department of Pollution Control and Ecology as a cabinet-level agency headed by a director appointed by the Commission. In 1996, the Arkans as General Assembly voted to rename the Department of Pollution Control and Ecology to the Arkansas Department of Environmental Quality, effective March 31, 1999. The Departme nt is responsible for the day-to-day administration of the Commission’s regulations for a variety of envi ronmental programs. The duties, powers and structure of the ADEQ (described in A.C.A. section 8-1-202 ) provide that the director is empo wered to administer all activiti es “including, but not limited to18 the employment and supervision of such technical, legal, and administrative staff, within approved appropriations, as is necessary to carry out the responsibilitie s vested within the department”. The AWAPCA provides the ADEQ ade quate authority with the powers and duties, in part, “to administer and enfor ce all laws and regulations relati ng to pollution of the air.” See

A.C.A. s ection 8-4-311(7). Furthermore, the ADEQ has the power and duty to “cooperate with and receive moneys from the federal government or any other source for the study and control of air pollution.” See A.C.A. section 8-4-311(9)(A). Fees collected for the Title V and non-Title V permit programs, and other inspections, maintenance and renewals required of other air po llution sources also provide necessary funds to help implement the State’s air programs. These f ees are discussed in detail below, in section II.11, regarding permitting fees (Section 110(a)(2)(L)). The ADEQ also receives federal funds, author ized pursuant to sections 103 and 105 of the Act. The section 103 funds support specific, n on-recurring projects within the air program, thus the amount of funding can va ry widely from year to year . The section 105 funds support the foundation of the State’s air quality program, including the air monitoring network and annual (recurring) air quality program activities. The sec tion 105 funding levels are relatively consistent, varying not more than about 10% from year to year. The 105 funds require a 40% match from the State, while the 103 funds do not require a match. Section 110(a)(2)(E)(ii) requi res that the state comply with section 128. Section 128 requires: 1) that the majority of members of the state body which approves permits or enforcement orders do not derive any significant portion of their income from entities subject to permitting or enforcement orders under the CAA; and 2) any potential conflicts of interest by such body be adequately disclosed. As noted in the State’s response above, the Director of the ADEQ (appointed by the governor , not the APCEC), has the au thority to issue permit and enforcement orders independently of the APCEC. However, EPA interprets the requirements of §110(a)(2)(E)(ii) to be applicab le in this case, because the Director of the ADEQ would be construed as “the head of an executive agency with similar powers”. In 1982, the EPA approved the state’s submittal to demonstrate compliance of the SIP with Section 128 of the CAA (47 FR 19136). The submittal cited AWAPCA Section 82-1901 as demonstrating compliance with CAA Section 128(a)(1 ), and cited Arkansas Code of Ethics Law, Act 570 or 1979 as addressing CAA Section 128(a)(2). See Arkansas Code of Ethics Law, Act 570 of 1979, Section 3: Use of Public Office to Ob tain Special Privilege Prohibited; Section 4: Use and Disclosure of Information Acquire d by Reason of Office – Activities Requiring Disclosure; Section 5: Requirement to File Statement; and Section 6: Statements – Period Retained – Public Access – Signature Require d. The ADEQ submitted a letter to EPA Region 6 to clarify that the requirements of §110(a)(2)(E)(ii) do apply to the Director of the ADEQ, and that EPA has already approved a state submittal to this effect. We are proposing that the Ar kansas SIP meets the requireme nts of section 110(a)(2)(E).

6. Stationary source emissions monitoring and reporting : Section 110(a)(2)(F) requires, as may be prescribed by the Administrator, (i) th e installation, maintenance and replacement of equipment, and the implementation of other necessary steps, by owners or ope rators of stationary

sources to monitor emissions from such source s, (ii) periodic reports on the nature and amounts

of emissions and emissions-related data from such sources, and (iii) correlation of such reports by the State agency with any emission limitations or standards established pursuant to this Act, which reports shall be available at reasonable times for public inspection.19 The State's response : Regulatory requirements have been codified in the Arkansas Pollution Control and Ecology Commission’s Regulation 19, Regulations of the Arkansas Plan of Implementation for Air Pollution Control, Chap ter 7 (pertaining to sampling and testing).

Requirements in Chapter 7, Reg. 19.705 provide for the reporting of emissions inventories in a format established by the ADEQ on a schedule se t forth in the section. In addition, Reg. 19.705 requires the submission of emission st atements as required by the CAA.

Area, mobile, and non-road data ar e reported on a three year cycle.

Enforceable emission limitations and other contro l measures are covered in the Arkansas Water and Air Pollution Control Act and those provisi ons of A.C.A. §§ 8-4-310 and 8-4-311. Elements of the program for enforcement are found in the monitoring, record keeping and reporting requirements for sources in these control m easures as well as individual SIP permits.

EPA analysis : APCEC Regulation 19, Chapter 7 provide s the ADEQ with authority to require monitoring and recordkeeping by ow ners or operators of stationary sources. The authority to require the submittal of emissions data to develop an emissions inventory is provided at Chapter 7, Reg. 19.705. Regulation 19, chapters 2-4, 7-10 and 13 re quire source monitoring for compliance, recordkeeping and reporting, and provide for enforcement, with respect to the NAAQS for PM 2.5 , ozone and their precursors. These source mon itoring program requirements generate data for

ozone and PM 2.5 and their precursors. The ADEQ collects and analyzes emissions da ta from point, area, mobile, and biogenic (natural) sources. The ADEQ uses this data to track progress towards attaining the NAAQS, develop control and maintenance strategies, id entify sources and general emission levels, and determine compliance with state and federal requir ements. Arkansas emissions data are available on the ADEQ website (http://www.adeq.sta te.ar.us) and EPA’s AirData website (www.epa.gov/air/data/index.html). A list of the Stat e’s SIP-approved rules is provided in Table

4 below. The National Emissions Inventory (NEI) is EPA’s central repository for air emissions data. EPA published the Air Emissions Repor ting Rule (AERR) on December 5, 2008, which modified the requirements for collecting and reporting air emissions data (73 FR 76539). The AERR shortened the time states had to report emi ssions data from 17 to 12 months, giving states one calendar year to submit emissions data. All states are required to submit a comprehensive emissions inventory (EI) every three years and report emissions for certain larger sources annually through EPA’s online Emissions Inventory System. States report emissions data for the six criteria pollutants and the prec ursors that form them – NOx, SO 2 , ammonia, lead, carbon monoxide, PM, and VOCs. Many states also volunt arily report emissions of hazardous air pollutants. EPA compiles the emissions data, suppl ementing it where necessary, and releases it to the general public through the websit e www.epa.gov/ttn/chief/eiinformation.html. There are two additional requirements that Arkansas must meet regarding emissions inventories: the EI requi rement for nonattainment areas, and the requirement to submit annual EI

data to EPA’s NEI database. For the Critte nden County ozone nonattainment area, the ADEQ20 submitted an EI SIP with a 2002 base year which included NOx, VOC and CO data 18 . EPA approved this EI SIP on January 15, 2009 (74 FR 2383). The ADEQ is current with their submittals to the NEI database; the 2008 data was submitted to EPA in 2010. The State’s

emissions data are also avai lable on EPA’s AirData website, which provides access to air pollution data for the entire United States and can produce reports and maps of air pollution data based on criteria specified by the user (www.ep a.gov/air/data/index.html). We are proposing

that the Arkansas SIP meets the re quirements of section 110(a)(2)(F).

We note the following chapters within the State SIP as relevant to m eet the requirements of section 110(a)(2)(F):

APCEC Regulation 19 Chapter 2 Definitions Chapter 3 Protection of the National Ambient Air Quality Standards Chapter 4 Minor Source Review Chapter 7 Sampling, Monitoring and Reporting Requirements Chapter 8 111(D) Designated Facilities Chapter 9 Prevention of Significant Deterioration Chapter 10 Regulations for the Control of Volatile Organic Compounds in Pulaski County Chapter 13 Stage I Vapor Recovery

Requirements for stationary sources subject to emission standards as part of an applicable plan to install, calibrate, ma intain, and operate equipment fo r continuously monitoring and recording emissions are provided in the Arkansas SIP. References are provided in Table 4 below.

Table 4: Arkansas rules relevant to meeting section 110(a)(2)(F), as submitted by ADEQ:

Section of SIP Referenced in Arkansas’s Submittal EPA Approval/FR Citation Regulation 19, Chapter 2 October 16, 2000 at 65 FR 61108 April 12, 2007 at 72 FR 18394 Regulation 19, Chapter 3 Oc tober 16, 2000 at 65 FR 61108 April 12, 2007 at 72 FR 18394 Regulation 19, Chapter 4 Oc tober 16, 2000 at 65 FR 61108 April 12, 2007 at 72 FR 18394 Regulation 19, Chapter 7 Oc tober 16, 2000 at 65 FR 61108 April 12, 2007 at 72 FR 18394 Regulation 19, Chapter 8 Oc tober 16, 2000 at 65 FR 61108 April 12, 2007 at 72 FR 18394 Regulation 19, Chapter 9 Oc tober 16, 2000 at 65 FR 61108 April 12, 2007 at 72 FR 18394 Regulation 19, Chapter 10 Oc tober 16, 2000 at 65 FR 61108 April 12, 2007 at 72 FR 18394 Regulation 19, Chapter 13 April 12, 2007 at 72 FR 18394

18 At the time of this submittal, Crittenden County was classified as moderate nonattainment of the 1997 8-hour ozone NAAQS. On March 24, 2010, EPA approved the stat e’s February 14, 2009 request to redesignate Crittenden County to attainment for the 1997 8-hour ozone NAAQS (75 FR 14077).21 7. Emergency power : Section 110(a)(2)(G) requires states to provide for authority to address activities causing imminent and substantial endangerment to public health, including contingency plans to implement the emerge ncy episode provisions in their SIPs.

The State’s response : A.C.A. § 8-1-202(b)(2)(C) empowe rs ADEQ to issue orders under circumstances that reasonably require emerge ncy measures to be taken to protect the environment or the public health and safet y. The Arkansas Pollution Control and Ecology Commission Regulation 8, Administrative Procedures, Reg. 8.502 requires ADEQ to publish a Notice of Emergency Order in a newspaper coveri ng the affected area, or in a newspaper of

statewide circulation. The notic e must contain a description of the action, ADEQ’s authority for taking the action and other information to assu re the public is informed about the action.

A.C.A. § 8-4-202(e)(1) empowers the Arkansas Pollution Control and Ecology Commission to declare an emergency and implement emergency ru les, regulations, suspensions, or moratoria on categories or types of permits if the Commission determines that imminent peril to the public health, safety, or welfare requi res immediate change in the ru les or immediate suspension or moratorium on categories or types of permits.

The Arkansas Pollution Control and Ecol ogy Commission’s Regulati on 8, Administrative Procedures, Reg. 8.807 authorizes th e Commission to waive or reduc e the notice requirements in cases involving emergency rulemaking. No emergenc y rule shall be effective for more than one hundred eighty (180) days.

EPA analysis : The ADEQ has authority to formulate contingency plans for environmental emergencies, pursuant to A.C.A. sections 8-1-202(b)(2)(C) and 8-4-202( e)(1). Further, the ADPCE promulgated the “Prevention of Air Pollution Emerge ncy Episodes” plan, which includes contingency measures, and these provi sions were approved into the SIP on May 31, 1972 (37 FR 10850). The criteria for ozone are ba sed on a 1-hour average ozone level. These episode criteria and contingenc y measures are adequate to ad dress ozone emergency episodes and are in the federally approved SIP. EPA compared the State rules to 40 CFR 51 Subpart H – Prevention of Air Pollution Emergency Episodes and Appendix L to Part 51 - Example Regulations for Prevention of Air Pollution Emergency Episodes. Subpart H provides a classification system for episode plans. Each region in a state is classifi ed separately with respect to each of the following pollutants: Sulfur dioxide, particulate matter, carbon monoxide, nitrogen dioxide , and ozone (40 CFR 51.150). An area classified as a Priority I region for ozone has ambient concentrations greater than 195 micrograms per cubic meter (denoted μg/m 3 ) or 0.10 ppm for a 1-hour maximum. The regulations do not establish Priority II regions for ozone. For partic ulate matter a Priority I region has ambient concentrations greater than 95 μg/m 3 annual geometric mean or 325 μg/m 3 for a 24- hour maximum. A Priority II region is any area which is not a Pr iority I region and has ambient concentrations between 60–95 μg/m 3 annual geometric mean or 150–325 μg/m 3 for a 24-hour maximum. A Priority IA Region is any area which is Priority I primarily because of emissions from a single point source. Areas that do not meet th e criteria for Priority I or II are classified Priority III. Table 5 below summarizes the classifications for ozone and PM.

Table 5: Classification of Regions for Ep isode Plans for Ozone and Particulate Matter22 (40 CFR 51.150) Parameter Priority I Priority II Priority III

Ozone Ambient concentrations > 195 μg/m 3 (0.10 ppm)

1-hour maximum Not defined Areas which do not

meet the criteria for Priority I

Particulate

matter Ambient concentrations > 95 μg/m 3 annual geometric mean; 325 μg/m 3 24-hour

maximum Ambient concentrations between 60-95 μg/m 3
annual geometric mean; 150-325 μg/m 3

24-hour maximum. Areas which do not

meet the criteria for Priority I or II

The significant harm level (SHL) for the 8- hour ozone NAAQS will remain unchanged as 0.6 parts per million ozone, 2-hour average, as indicated in 40 CFR 51.151. EPA believes that the existing ozone-related provisi ons of 40 CFR Subpart H remain appropriate. Therefore, EPA expects that for purposes of the 1997 8-hour ozon e NAAQS, states need only to confirm that they have existing emergency epis ode plan provisions consistent with EPA’s existing regulatory requirements. 19
While the state has appropriate gene ral emergency powers to address PM 2.5 related episodes, SHLs for PM 2.5 are not provided under Subpart H, nor have SHLs for the 1997 PM 2.5 standards been proposed by EPA. The Arkansas SIP has not been revised to address contingency plans for PM 2.5 . To evaluate whether the Arkansas SIP provides adequate contingency plans for

the 1997 PM 2.5 NAAQS, EPA used guidance issued in 2009 for the 2006 PM 2.5 NAAQS. 20, 21

The 2009 Guidance for PM 2.5 recommends that a state with at least one monitored 24-hour PM 2.5 value exceeding 140.4 μg/m 3 since 2006 establish an emergenc y episode plan and contingency measures to be implemented should such le vel be exceeded again. Additionally, the 2009

Guidance for PM 2.5 recommends that if no area of a state has exceeded this 140.4 μg/m 3 level since 2006 and the state has appropriate general emergency powers to address PM 2.5 related episodes, then no specific emergency episode plans are necessary at this time given the existing

monitored levels. The 2006-2010 data for Arkansas 22 do not exceed 140.4 μg/m 3 and have consistently remained below the level of 140.4 μg/m 3 . In fact, these data indicate that levels of

PM 2.5 in Arkansas have stayed below 100 μg/m 3 . In addition, Subpart H at 51.153 provides for reevaluation of episode plans and requires that, “States should periodicall y reevaluate priority classifications of all Regions or portion of Regi ons within their borders. The reevaluation must consider the three most recent year s of air quality data. If the ev aluation indicates a change to a higher priority classification, a ppropriate changes in the episode plan must be made as expeditiously as practicable.” Th e Arkansas data does not indicate a change to a higher priority, but suggests that emergency episode plans for the PM 2.5 NAAQS are not needed at this time. We are proposing that the Ar kansas SIP meets the requireme nts of section 110(a)(2)(G).

19 October 2, 2007 Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone

and PM 2.5 NAAQS, Memorandum from William T. Harnett, Director, Air Quality Policy Division, OAQPS.

20 “Guidance on SIP Elements Required Under Section 110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM 2.5 ) National Ambient Air Quality Standard s (NAAQS)”, September 29, 2009 memorandum from William T. Harnett, Director, Air Quality Policy Division to Regional Air Division Directors.

21 On October 17, 2006, EPA revised the 24-hour PM 2.5 NAAQS from 65 μ g/m 3 to 35 μ g/m 3 (see 71 FR 61144).

22 The PM data are available to the public through the St ate website (www.adeq.state.ar .us/techsvs/pmmonitors.asp).23 8. Future SIP revisions : Section 110(a)(2)(H ) requires states to have the authority to revise their SIPs in response to changes in the NAAQS, availability of improved methods for attaining NAAQS, or in response to an EPA finding th at the SIP is substantially inadequate.

The State’s response : The Arkansas Pollution Control a nd Ecology Commission’s Regulation 19, Regulations of the Arkansas Plan of Implem entation for Air Pollution Control, Chapter 1, provides a clear delineati on of those regulations that are promulgated by the Commission in

satisfaction of certain re quirements of the CAA.

A.C.A. § 8-4-311(a)(7) empowers ADEQ to administer and enfo rce all laws and regulations relating to pollution of the air.

A.C.A. § 8-4-202(d)(4)(A) authorizes the Ar kansas Pollution Control and Ecology Commission

to refer to the Code of Federa l Regulations for and Commission st andard or regulation that is identical to a regulation promul gated by the United States Environmental Protection Agency.

EPA analysis : The AWAPCA, Section 82-1935(1), empowers the APCEC to “formulate and promulgate, amend, repeal, and enforce rule s and regulations implementing or effectuating the powers and duties of the Commission [...] to c ontrol air pollution”. In addition, A.C.A. 8-4- 202(d)(4)(A) authorizes the Commission to “refer to the CFR for regulations and standards identical to those sanctioned by EPA.” Furthe r, APCEC Regulation 19, Ch apter 1 outlines the Federal programs that ADEQ is responsible for ad ministering, as well as those regulations that are promulgated by the APCEC to satisfy certain requirements of the CAA. Thus, Arkansas has the authority to revise its SIP from time to time as may be necessary to account for revisions of the NAAQS, adopt more effective methods of attaining the NAAQS, and respond to EPA SIP calls. We are proposing that the Arkansas SIP meets the requirem ents of section 110(a)(2)(H).

9. Consultation, public notice, and PSD and visibility protection : Section 110(a)(2)(J) requires states to provide a pr ocess for consultation with local governments and Federal Land Managers carrying out NAAQS implementation requi rements pursuant to section 121 relating to consultation. Section 110(a)(2)(J ) further requires states to notify the public if NAAQS are exceeded in an area and to enhance public awaren ess of measures that can be taken to prevent exceedances. Section 110(a)(2)(J) also requires Stat es to meet applicable requirements of Part C related to prevention of significant dete rioration and visibi lity protection.

The State's response : Arkansas has incorporated by referenc e into the Arkansas Pollution Control and Ecology Commission’s Regulat ion 19, Regulations of the Arka nsas Plan of Implementation for Air Pollution Control, Chapter 9, the requi rements in 40 CFR 52 under section 161 of the CAA (42 U.S.C.A. § 7471) for pr evention of significant deterior ation of air qua lity in their entirety, with the exception of 40 CFR 52.21(b) (2)(iii)(a), 40 CFR 52.21(b)(55-58), 40 CFR 52.21(i) and 40 CFR 52.21(cc). Thes e provisions were approved by EPA as part of the SIP.

The public is notified of con centrations that exceed the NAAQS from the ADEQ website (www.adeq.state.ar.us ) that contains hourly concentrations of PM2.5 taken from monitoring sites throughout the state. These monitoring sites also upload data to EPA’s AirNow website, which provides data to the public.24 ADEQ is using PM10 as a surrogate for PM2.5 un til EPA establishes the necessary tools to

evaluate PM2.5 under the Prevention of Significant Deterioration program.

On September 17, 2008, ADEQ submitted a Regional H aze Rule SIP to EPA that is currently

under review.

EPA analysis : Regarding consultation with government officials, section 110( a)(2)(J) requires states to provide a process for consultation w ith local governments and Federal Land Managers carrying out NAAQS implementation requirements pursuant to section 121 of the Act, relating to consultation. Section 121(1) addresses any trans portation controls, air qu ality maintenance plan requirements or preconstruction re view of direct sources of ai r pollution, and section 121(2)(B) addresses measures pertaining to PSD. The AWAPCA, as codified under A.C.A. section 8-1-203 provides that the APCEC “shall meet regularly in publicly noticed ope n meetings to discuss and rule upon matters of environmental concern” prior to the adoption of any rule or regulation implementing the substantive statutes charged to the ADEQ for ad ministration. In addition, A.C.A. section 8-4- 311 provides that the ADEQ or its successor shall have the power and duty “to advise, consult, and cooperate with other agencies of the state, po litical subdivisions, indus tries, other states, the federal government, and with affected groups in the furtherance of the purposes of this chapter.” Further, Regulation 19.904(D) provides that ADEQ sh all make determinations that a source may affect air quality or vi sibility in a mandatory Class I fe deral area based on screening criteria agreed upon by the Department and the Federal Land Manager (see 72 FR 18394)..We are proposing that the Arkansas SIP meets this portion of s ection 110(a)(2)(J). Section 110(a)(2)(J) further requ ires states to notify the public if NAAQS are exceeded in an area and to enhance public awareness of meas ures that can be taken to prevent exceedances. Public notification begins with the air quality forecasts, which advise the public of conditions capable of exceeding the 8-hour ozone 23 and PM 2.5 NAAQS. The air qualit y forecasts can be found on the ADEQ website: for 8-hour ozone and PM 2.5 , the forecast includes 2 regions 24 in the State. Ozone forecasts are made daily during the ozone season for each of the forecast areas. 25
The ozone forecasts are made, in most cases, a day in advance by 2 p.m. local time and are valid for the next day. When the forecast indicates that ozone levels will be above the 8-hour ozone standard, the ADEQ and the Arkans as Department of Health issue an Ozone Health Advisory. In addition, t he State implements an Ozone Action Day (OAD) program 26 and will issue an ozone alert in the afternoon on the day before an elevated level of ozone is expected to occur.

Announcements for an OAD will be broadcast thr ough television and other news media, and to employers participating in the OAD program. Th e OAD program includes examples of actions

23 The ADEQ forecasts for 8-hour ozone are based on the 2008 ozone stan dard, which is 75 ppb.

24 The 2 forecast areas for 8-hour ozone and PM 2.5 are Little Rock and Springdale. See www.adeq.state.ar.us/techsvs/default.htm

25 Ozone is a gas composed of three oxygen atoms. Ground level ozone is generally not emitted directly from a vehicle’s exhaust or an industrial smokestack, but is cr eated by a chemical reaction between NOx and VOCs in the presence of sunlight and high ambient temperatures. Thus, ozone is known primarily as a summertime air pollutant. For Arkansas, the ozone season runs from March 1 through November 31 (see 40 CFR 58, Appendix D, Table D-3). The Arkansas air quality control regions are defined at 45 FR 6571 (January 29, 1980).

26 For coordinating agencies, participating counties and other information, please see http://www.adeq.state.ar.us/air/ozone/ozonedays.asp.25 that can be implemented by indivi duals and organizations to reduc e ozone levels and exposure to

ozone. Also through the Metroplan website , the public can subscribe to an electronic information system that provides air quality forecast and ozone alert information via e-mail. Ozone data are posted on the ADEQ website; curren t, regional hourly and regional 8-hour ozone data are posted hourly (see http://www.adeq.state.a r.us/techsvs/ozonemonitors.asp). Provisions regarding public availability of emission data we re also approved into the Arkans as SIP on April 12, 2007 (72 FR 18394). We are proposing that the Arkansas SIP meets this portion of section 110(a)(2)(J). Regarding PSD and visibility protection: Se ction 110(a)(2)(J) requires States to meet applicable requirements of Part C related to prevention of signifi cant deterioration and visibility protection. As detailed in Section II.3 in th is TSD (addressing section 110(a)(2)(C)), the Arkansas PSD program, with the exception of GHGs , has been approved into the SIP. EPA is not proposing to approve the PSD program in full pur suant to section 110(a)(2)(J) because Arkansas does not have adequate legal authority to implement the PSD permitting program with respect to

GHG emissions. The State has a FIP for the PSD program related to permitting GHGs at or above the Tailoring Rule thresholds (75 FR 82246). EPA approved Arkansas’s Visi bility Protection Plan (Pro tection of Visibility in Mandatory Class I Federal Areas) into the Arkansas SIP on February 10, 1986 (51 FR 4910). EPA approved revisions to the Ar kansas Visibility Protection Plan and approved a Long-Term Strategy for Visibility Protection into the Ar kansas SIP on July 21, 1988 (53 FR 27514). The State’s most recent SIP revision of their Regi onal Haze program was submitted to EPA on July 29, 2008, and we will take action on it in a separate rulemaking. With regard to the applicable requirements for visibility protec tion, EPA recognizes that states are subject to visibility and regional haze program requirements under sections 169A and 169B of the Act. In the event of the establishment of a new NAAQS, however, th ese visibility and regional haze program requirements do not change. Thus, we find that th ere is no new visibility obligation triggered under section 110(a)(2)(J) when a new NAAQS becomes effective. We are proposing that the Arkansas SIP meets the visibility portion of section 110(a)(2)(J). Regarding PSD and visibility protection, we are proposing to find that the Arkansas SIP meets the requirements of this portion of sectio n 110(a)(2)(J) with resp ect to the 1997 8-hour ozone NAAQS with the exception of section 110(a )(2)(J) as it re lates to the GHG component of the PSD program. EPA is proposi ng disapproval of section 110(a )(2)(J) as it rela tes to the GHG component of the PSD program with respect to the 1997 8-hour ozone NAAQS. EPA is also proposing to find that the Arkansas SIP does not meet the requiremen ts of this portion of section 110(a)(2)(J) with respec t to the 1997 and 2006 PM 2.5 NAAQS as it relates to the PSD program. For Arkansas to meet the requirements of the PSD portion of secti on 110(a)(2)(J), it must comply with section 110(a)(2)(C). 27 To implement section 110 (a)(2)(C) for the 1997 and 2006

PM 2.5 standards, states were required to submit PSD NSR SIP re visions for the PM 2.5 standards by May 16, 2011 (73 FR 28321, May 16, 2008). At present, Arkansas has not submitted revisions to satisfy this requirement. Therefore, Arkansas fails to meet the requirements of section 110(a)(2)(C) for the 1997 and 2006 PM 2.5 NAAQS. We are propos ing to find that the current Arkansas PSD SIP does not meet the requir ements of section 110(a)(2)(J) with respect to

the 1997 and 2006 PM 2.5 NAAQS.

27 CAA Section 110(a)(2)(J) requires, am ong other things, that each implemen tation plan “meet[s] the applicable requirements of [110(a)(2)(C)]”.26 10. Air quality modeling a nd submission of data : Section 110(a)(2)(K) requires that SIPs provide for performing air quality modeling for predicting effect s on air quality of emissions from any NAAQS pollutant and submissi on of such data to EPA upon request.

The State’s response : Arkansas has submitted the Emissions Inventory SIP revision pertaining to Crittenden County during calendar years 2006 a nd 2007. These plans submitted the necessary modeling where required. The status of this SIP revision is below:

The Emissions Inventory SIP for Crittenden C ounty was submitted to EPA and approved on January 15, 2009.

EPA analysis : The EPA currently does not have regul ations concerning modeling for the SIP demonstration purposes, but has issued guidance. 28 Modeling and emissions reductions measures have been submitted by Arkansas and approved into the SIP. For example, we reference the air modeling and emissions reductions data subm itted within the Critt enden County Economic Development Zone SIP revisions , as well as the demonstratio n of maintenance of the 1997 8- hour ozone standard in Crittenden County. The m easures in these SIPs were approved by EPA and adopted into the SIP. 29
This section of the Act also requires that a SIP provide for the submission of data related to such air quality modeling to the EPA upon re quest. A.C.A. section 8-4-311 authorizes ADEQ to cooperate with the federal government, allowi ng it to make this submission to the EPA. We are proposing that the Arkansas SIP meets the requirements of s ection 110(a)(2)(K).

11. Permitting fees : Section 110(a)(2)(L) requir es SIPs to require each major stationary source to pay permitting fees to cover the cost of re viewing, approving, implementing and enforcing a permit.

The State's response : The fee requirements of the Arka nsas Pollution Control and Ecology Commission’s Regulation 26, Regulations of th e Arkansas Operating Air Permit Program, Chapter 11, were approved by EPA as meeting the CAA requirements and were incorporated into Arkansas’s SIP. Arkansas’s Title V ope rating permit program in Chapter 11, was approved October 9, 2001.

The Arkansas Pollution Control and Ecology Co mmission Regulation 9, Fee Regulation, Chapter 5, Air Permit Fees, contains the air permit fees a pplicable to non-part 70 permits, part 70 permits and general permits.

EPA analysis : The AWAPCA authorizes the director of the ADEQ to propose the assessment of civil penalties as provided by law and take all ac tions necessary to collect such penalties (8-1- 202(b)(B)(ii)). These penalties are codified in APCEC Regulation 9, Chapter 5, providing

28 See EPA’s “Guidance on the Use of Models and Other Analyses in Attainment Demonstrations for the 8-hour Ozone NAAQS,” October 2005; and “Guidance on the Use of Models and Other Analyses for Air Quality Goals in Attainment Demonstrations for Ozone, PM2.5, and Regional Haze,” April 2007.

29 See the Economic Development Zone implementation for the Crittenden County 1997 8-hour O3 nonattainment area, approved by EPA and adopted into the SIP on Apr il 12, 2007 (72 FR 18394), and the Crittenden County 1997 8-hour O3 maintenance plan, approved by EPA and adopted into the SIP on March 24, 2010 (75 FR 14077).27 authority for the ADEQ to charge and colle ct fees for Title V and non-Title V permit applications, revisions, renewals, and inspections. The non-Title V rules that address permit fees found in APCEC Regulation 9, Chapter 5 are in the federally approved SIP..The sections in the

Arkansas SIP that address fees are listed in Table 6 below.

Table 6: Arkansas rules relevant to meeting section 110(a)(2)(L):

Relevant Section of the Arkansas SIP EPA Approval/FR Citation Reg.9.501 – Applicability November 12, 1986 at 51 FR 40975 Reg.9.502 – Terms Used in Fee Formulas 51 FR 40975 Reg.9.503 – Initial Fees 51 FR 40975 Reg.9.504 – Annual Fees 51 FR 40975 Reg.9.505 – Modification Fees 51 FR 40975 Reg.9.506 – Administrative Permit

Amendments and Renewal Permits 51 FR 40975

Reg.9.507 – General Permits 51 FR 40975 Reg.9.508 – Permit Fees for Certain Small Businesses Subject to Part 70 Permitting Requirements 51 FR 40975

The sections listed in Table 6 above are in th e Arkansas SIP and meet the requirements of section 110(a)(2)(L). We are propos ing that the Arkansas SIP meet s the requirements of section 110(a)(2)(L).

12. Consultation/participation by affected local entities : Section 110(a)(2)(M ) requires states to provide for consultation and participation in SIP development by local political subdivisions affected by the SIP.

The State’s response : Pursuant to the Arkansas Pollu tion Control and Ecology Commission’s Regulation Number 8, Administra tive Procedures, Arkansas will continue to provide for consultation and participation from those aff ected by the SIP. (Reg. 8.205 Public Notice of Permit Application; Reg. 8.207 Public Notice of Draft Permitting Decision; Reg. 8.405 Public

Notice of Notices of Violations and Consen t Administrative Orders; and Reg. 8.801 Public Notice of Rulemaking.)

In addition, ADEQ participates in the Central Regional Air Pla nning Association, which is an organization of states, tribes, fe deral agencies and other interest ed parties concerned with air quality. Through these interactions and public participation on rule and plan development, the requirements of 110(a)(2)(M) are fulfilled. We be lieve the public notice and hearing processes fulfill the requirements for consultation with loca l political subdivisions affected by the SIP.

EPA analysis : As referenced in the State’s respons e above, APCEC Regulation 8 provides for consultation and participation in SIP development by effected local political subdivisions; However, this regulation has been adopted on th e state level, but EPA has not approved it into

the SIP. As described under element J above, regardi ng consultation with government officials and public notification, the Arkansas statute under A.C.A. section 8-1-203 provides that the28 APCEC “shall meet regularly in publicly noticed open meetings to discuss and rule upon matters of environmental concern” prio r to the adoption of any rule or regulation implementing the substantive statutes charged to the ADEQ for administration. (A.C.A. 8-1-203(a)). In addition, the AWAPCA provides that the ADEQ shall have the power to “advise, consult and cooperate with other agencies of the Stat e, political subdivisions , other states, the federal government, and with affected groups”. (See A.C.A. 8-4-311(a)(2 )). These rules are in the Federally-approved SIP. We are proposing that the Arkansas SIP m eets the requirements of section 110(a)(2)(M).

III. EPA’s Recommendation We reviewed the Arkansas submittal, SIP, and air quality data for ozone and PM 2.5 for compliance with the infrastructure requirements of sections 110(a)(1) and (2) of the Act for the

1997 8-hour ozone and 1997 and 2006 PM 2.5 standards. We recommend that EPA propose to partially approve and partially disapprove the Arkansas SIP submittals that identify where and

how the 14 basic infrastructure elements are inco rporated in the EPA-approved SIP as specified in section 110(a)(2) of the Act for the 1997 8-hour ozone and 1997 and 2006 PM 2.5 standards and

as described in Section III.B below. In addi tion, we recommend that EPA propose to partially approve and partially disapprove the Arkansas SIP submittal for Interstate Transport as specified in section 110(a)(2)(D)( i)(II) of the Act for the 1997 8-hour ozone standard, and disapprove the Arkansas SIP submittal for Interstate Transport as specified in section 110(a)(2)(D)(i)(II) of the

Act for the 2006 PM2.5 standard as described in Section III.C below.

A. What is a Partial Approval, Partial Disapproval? Section 110(k)(3) of the Ac t states that EPA may part ially approve and partially disapprove a SIP submittal if it finds that only a portion of the submittal meets the requirements

of the Act. We believe that the Arkansas SIP me ets a majority of the requirements of section 110(a)(2) of the Act and that sp ecific portions of three elements of section 110(a)(2) are not

met. 30 Because the portions proposed for disapproval are independent from those proposed for approval, we believe that the Arkansas Infrastruc ture SIP can be partiall y approved and partially disapproved. Enforcement of a state regulation (or rule) be fore and after it is incorporated into the federally approved SIP is primarily a state respon sibility. However, after the rule is federally approved, we are authorized to take enforcemen t action against violators. Citizens are also offered legal recourse to address violations as described in secti on 304 of the Act. If a state rule is disapproved, it is not incorpor ated into the federally approved SIP, and is not enforceable by EPA or by citizens under section 304. In the case of a revision to a federally approved state rule, disapproval of the revision mean s that the underlying rule pr ior to the state's April 4, 2008 submittal remains as the federally enforceable re quirement. Disapproval of any of the Arkansas infrastructure SIP elements would not trigger sanc tions under section 179 of the Act, because the submittals are not required by part D of Title I of the Act and are not required by a call for a SIP revision under section 110(k)(5) of the Act. However, as noted earlier in this TSD, EPA published a finding on March 27, 2008 (73 FR 16205) re garding whether or not states had made the section 110(a)(2) submissions for ozone a nd found that Arkansas had failed to make a complete submission. This finding started a 24- month deadline for promulgation by EPA of a FIP. EPA’s disapproval of the infrastructure a nd transport elements here do not engender an additional statutory obligation, because EPA promulgated a FIP for the Arkansas PSD program

30 The three elements refer to the infrastructure and transport SIP elements discussed in section II above.29 related to permitting GHGs at or above the Tail oring Rule thresholds (75 FR 82246). This FIP will remain in place until Arkansas submits and EPA approves revisions that address the disapproved infrastructure and transport elemen ts (the portions of sections 110(a)(2)(C), 110(a)(2)(J) and 110(a)(2)(D)(i)(II) that a ddress PSD). The CSAP R addresses section 110(a)(2)(D)(i)(I) for the 1997 ozone NAAQS for Arkansas. 31 We will take action on the remaining prong of section 110(a)(2 )(D)(i)(II), addressing visibility, in a se parate rulemaking.

B. EPA’s Recommendation on the Section 110(a)(1) and (2) Infrastructure SIP

Elements For the 1997 Ozone NAAQS, we are proposi ng approval of the following elements: Emission limits and other control measures, pu rsuant to section 110( a)(2)(A) of the Act; Ambient air quality monitoring/data system, pur suant to section 110(a )(2)(B) of the Act; Program for enforcement of control measures, pursuant to section 110(a)(2)(C) of the Act, except as it relates to GHGs; Interstate transport, pursuant to section 110(a)(2 )(D)(ii) of the Act, ex cept for the portion that addresses GHGs; Adequate resources, pursuant to section 110(a)(2)(E ) of the Act; Stationary source monitoring system, pursuan t to Section 110(a )(2)(F) of the Act; Emergency power, pursuant to sec tion 110(a)(2)(G) of the Act; Future SIP revisions, pursuant to section 110(a)(2)(H ) of the Act; Consultation with government officials, pur suant to section 110( a)(2)(J) of the Act; Public notification, pursuant to section 110(a)(2)(J) of the Act; Visibility protection, pursuant to section 110(a)(2)(J ) of the Act; PSD, pursuant to section 110(a)(2)(J) of the Act, except as it relates to GHGs; Air quality and modeling/data, pursuant to section 110(a)(2)(K) of the Act; Permitting fees, pursuant to sec tion 110(a)(2)(L) of the Act; Consultation/participation by affected local entiti es, pursuant to section 11 0(a)(2)(M) of the Act;

For the 1997 Ozone NAAQS, we are proposi ng disapproval of the following elements: Program for enforcement of control measures, pur suant to section 110(a)( 2)(C) of the Act, only as it relates to GHGs; Interstate transport, pursuant to section 110(a)(2 )(D)(ii) of the Act, onl y as it relates to GHGs; PSD, pursuant to section 110(a)(2)(J) of th e Act, only as it relates to GHGs.

We are also proposing to approve the Arkansas Interstate Trans port SIP provisions that address the requirement of section 110(a )(2)(D)(i)(II) that emissions fr om sources in Arkansas do not interfere with measures required in the SIP of any other state unde r part C of the CAA to prevent significant deterioration of ai r quality, except as they relate to GHGs for the 1997 ozone NAAQS.

We are proposing to disapprove the portion of th e Arkansas Interstate Transport SIP provisions that address the requirement of section 110(a)(2)(D)(i) (II), as it relates to GHGs, that emissions

from sources in Arkansas do not interfere with m easures required in the SIP of any other state under part C of the CAA to prevent significant deterioration of air quality, for the 1997 ozone NAAQS.

31 76 FR 4820830 For the 1997 and 2006 PM 2.5 NAAQS, we are proposing approval of the following elements: Emission limits and other control measures, pu rsuant to section 110( a)(2)(A) of the Act; Ambient air quality monitoring/data system, pur suant to section 110(a )(2)(B) of the Act; Adequate resources, pursuant to section 110(a)(2)(E ) of the Act; Stationary source monitoring system, pursuan t to Section 110(a )(2)(F) of the Act; Emergency power, pursuant to sec tion 110(a)(2)(G) of the Act; Future SIP revisions, pursuant to section 110(a)(2)(H ) of the Act; Consultation with government officials, pur suant to section 110( a)(2)(J) of the Act; Public notification, pursuant to section 110(a)(2)(J) of the Act; Visibility protection, pursuant to section 110(a)(2)(J ) of the Act; Air quality and modeling/data, pursuant to section 110(a)(2)(K) of the Act; Permitting fees, pursuant to sec tion 110(a)(2)(L) of the Act; Consultation/participation by affected local entiti es, pursuant to section 11 0(a)(2)(M) of the Act;

For the 1997 and 2006 PM 2.5 NAAQS, we are proposing disapproval of the following elements: Program for enforcement of control measures, pursuant to section 110(a )(2)(C) of the Act; Interstate transport, pursuant to section 110(a)(2)(D)(i i) of the Act; PSD, pursuant to section 110(a)(2)(J) of the Act.

We are also proposing to disappr ove the portion of the Arkansas Interstate Transport SIP that addresses the requirement of section 110(a)(2 )(D)(i)(II)—that emissions from sources in

Arkansas do not interfere with m easures required in the SIP of a ny other state under part C of the CAA to prevent significant deterior ation of air quality—for the 2006 PM 2.5 NAAQS.

C. EPA’s Recommendation on the Section 110(a)(1) and (2) Transport SIP

Elements for the 1997 Ozone and 1997 and 2006 PM 2.5 NAAQS We are proposing to approve the Arkansas Interstate Transport SIP provisions that address the requirement of section 110(a)(2)(D )(i)(II) for the 1997 8-hour ozone standard that

emissions from sources in Arkansas do not interf ere with measures required in the SIP of any other state under part C of the CAA to prevent significant deterior ation of air quality, except as they relate to GHGs. We are proposing to disappr ove the portion of the Arkansas Interstate Transport SIP provisions that address the requir ement of section 110(a)(2)(D)(i)(II) for the 1997 8-hour ozone standard, as it rela tes to GHGs, that emissions from sources in Arkansas do not interfere with measures required in the SIP of any other state unde r part C of the CAA to prevent significant deterioration of air qua lity. We are proposing to disa pprove the Arkansas Interstate Transport SIP provisions that address the requir ement of section 110(a)(2)(D)(i)(II) for the 2006

PM 2.5 standard that emissions from sources in Ar kansas do not interfere with measures required in the SIP of any other state under part C of th e CAA to prevent significan t deterioration of air quality because the current Ar kansas PSD SIP does not meet the requirements of section 110(a)(2)(C) with respect to the implementa tion of the PSD NSR program for the 2006 PM 2.5 NAAQS. We will act on the remaining three elements regarding interstate transport, per section 110(a)(2)(D)(i) of the Act in a separate rulemaking.31 IV. References

1. Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-hour

Ozone and PM 2.5 NAAQS, Memorandum from William T. Ha rnett, Director, AQPD, OAQPS, to

Air Division Director s; dated October 2, 2007.

2. Guidance on SIP Elements Required Under Section 110(a)(1) and (2 ) for the 2006 24-Hour Fine Particle (PM 2.5 ) NAAQS, Memorandum from William T. Harnett, Director, AQPD, OAQPS, to Regional Air Division Directors, dated September 25, 2009.

3. Guidance for State Implementation Plan (S IP) Submission to Meet Current Outstanding Obligations Under Section 110(a)(2)( D)(i) for the 8-Hour Ozone and PM 2.5 National Ambient Air Quality Standards” Memorandum from Willia m T. Harnett, Director, AQPD, OAQPS, to Regional Air Division Directors; dated August 15, 2006

4. Guidance on the Use of Models and Other Anal yses in Attainment Demonstrations for the 8- hour Ozone NAAQS, October 2005. 32

5. Guidance on the Use of Models and Other An alyses for Air Quality Goals in Attainment Demonstrations for Ozone, PM 2.5 , and Regional Haze, April 2007.

32 This and other EPA guidance addressing the use of models can be found at www.epa.gov/ttn/scram/guidance_sip.htm#8ozone.