Federal Register / Vol. 80, No. 211 / Monday, November 2, 2015 / Rules and Regulations 67319 

1These submittals and our current action also 

address two rules and one statutory provision that 

are not directly related to NSR. 

(d) Effective date. This rule will be 

effective from October 27, 2015 to 

November 15, 2015 and will be enforced 

with actual notice while emergency 

salvage operations are ongoing. 

Dated: October 27, 2015. 

M. C. Long, 

Captain, U.S. Coast Guard, Acting Captain 

of the Port Miami. 

[FR Doc. 2015–27751 Filed 10–30–15; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2015–0187; FRL–9930–43– 

Region 9] 

Revisions to Air Plan; Arizona; 

Stationary Sources; New Source 

Review 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is finalizing a limited 

approval and limited disapproval of, 

and other actions on, revisions to the 

Arizona Department of Environmental 

Quality (ADEQ) portion of the 

applicable state implementation plan 

(SIP) for the State of Arizona (State or 

Arizona) under the Clean Air Act (CAA 

or Act). These revisions submitted by 

Arizona are primarily intended to serve 

as a replacement of ADEQ’s existing 

SIP-approved rules for the issuance of 

New Source Review (NSR) permits for 

stationary sources, including review and 

permitting of major and minor sources 

under the Act. After a lengthy 

stakeholder process, the State submitted 

a NSR program for SIP approval that 

satisfies most of the applicable CAA and 

NSR regulatory requirements, and 

which will significantly update ADEQ’s 

existing SIP-approved NSR program. It 

also represents an overall strengthening 

of ADEQ’s SIP-approved NSR program 

by clarifying and enhancing the NSR 

requirements for major and minor 

stationary sources. This final action 

updates the applicable plan while 

allowing ADEQ to remedy certain 

deficiencies in ADEQ’s rules. 

DATES: This rule is effective December 2, 

2015. 

ADDRESSES: EPA has established docket 

number EPA–R09–OAR–2015–0187 for 

this action. Generally, documents in the 

docket for this action are available 

electronically at www.regulations.gov 

and in hard copy at EPA Region IX, 75 

Hawthorne Street, San Francisco, 

California. Some docket materials, 

however, may be publicly available only 

at the hard copy location (e.g., 

voluminous records, maps, copyrighted 

material), and some may not be publicly 

available in either location (e.g., CBI). 

To inspect the hard copy materials, 

please schedule an appointment during 

normal business hours with the contact 

listed in the FOR FURTHER INFORMATION

CONTACT section. 

FOR FURTHER INFORMATION CONTACT: Lisa 

Beckham, EPA Region 9, (415) 972– 

3811, beckham.lisa@epa.gov. 

Table of Contents 

I. Background 

II. The EPA’s Evaluation of the SIP Revision 

A. What action is the EPA finalizing? 

B. What changes is the EPA making from 

its proposed action? 

C. Public Comments and Responses 

III. Final Action 

IV. Incorporation by Reference 

V. Statutory and Executive Order Reviews 

For the purpose of this document, we 

are giving meaning to certain words or 

initials as follows: 

(i) The words or initials Act or CAA mean 

or refer to the Clean Air Act, unless the 

context indicates otherwise. 

(ii) The initials ADEQ mean or refer to the 

Arizona Department of Environmental 

Quality. 

(iii) The initials A.R.S. mean or refer to the 

Arizona Revised Statutes. 

(iv) The initials AQIA mean or refer to air 

quality impact analysis. 

(v) The initials BACT mean or refer to Best 

Available Control Technology. 

(vi) The initials CFR mean or refer to Code 

of Federal Regulations. 

(vii) The initials CO mean or refer to 

carbon monoxide. 

(viii) The words EPA, we, us or our mean 

or refer to the United States Environmental 

Protection Agency. 

(ix) The initials FIP mean or refer to 

Federal Implementation Plan. 

(x) The initials GHG mean or refer to 

greenhouse gas. 

(xi) The initials IBR mean or refer to 

incorporation by reference. 

(xii) The initials LAER mean or refer to 

Lowest Achievable Emissions Rate. 

(xiii) The initials NAAQS mean or refer to 

National Ambient Air Quality Standards. 

(xiv) The initials NA–NSR mean or refer to 

Nonattainment New Source Review. 

(xv) The initials NOX mean or refer to 

nitrogen oxides. 

(xvi) The initials NSR mean or refer to New 

Source Review. 

(xvii) The initials PAL mean or refer to 

Plantwide Applicability Limits 

(xviii) The initials PM10 mean or refer to 

particulate matter with an aerodynamic 

diameter of less than or equal to 10 

micrometers. 

(xix) The initials PM2.5 mean or refer to 

particulate matter with an aerodynamic 

diameter of less than or equal to 2.5 

micrometers (fine particulate matter). 

(xx) The initials PSD mean or refer to 

Prevention of Significant Deterioration. 

(xxi) The initials PTE mean or refer to 

potential to emit. 

(xxii) The initials RACT mean or refer to 

reasonably available control technology. 

(xxiii) The initials SER mean or refer to 

significant emission rate. 

(xxiv) The initials SIP mean or refer to 

State Implementation Plan. 

(xxv) The initials SMC mean or refer to 

significant monitoring concentration. 

(xxvi) The initials SO2 mean or refer to 

sulfur dioxide. 

(xxvii) The initials SRP mean or refer to the 

Salt River Project Agricultural Improvement 

and Power District. 

(xxviii) The words State or Arizona mean 

the State of Arizona, unless the context 

indicates otherwise. 

(xxix) The initials TSD mean or refer to the 

technical support document for this action. 

(xxx) The initials VOC mean or refer to 

volatile organic compound. 

I. Background 

On March 18, 2015, the EPA provided 

notice of, and requested public 

comment on, our proposed CAA 

rulemaking to revise certain portions of 

the Arizona SIP for ADEQ. See 80 FR 

14044 (Mar. 18, 2015). We proposed 

action on SIP submittals that comprise 

ADEQ’s updated program for 

preconstruction review and permitting 

of new or modified stationary sources 

under ADEQ’s jurisdiction in Arizona.1

The SIP submittals that are the subject 

of this action, referred to herein as the 

‘‘NSR SIP submittal,’’ provide a 

comprehensive revision to ADEQ’s 

preconstruction review and permitting 

program for stationary sources and are 

intended to satisfy requirements under 

both part C (prevention of significant 

deterioration) (PSD) and part D 

(nonattainment new source review) of 

title I of the Act as well as the general 

preconstruction review requirements 

under section 110(a)(2)(C) of the Act. 

As a component of its NSR SIP 

submittal, ADEQ also requested the 

removal from the Arizona SIP of 

numerous older rules, as well as one 

Arizona statutory provision, which are 

mostly superseded by the newer 

provisions that are the subject of this 

action or by newer provisions that have 

already been approved into the Arizona 

SIP. Accordingly, our action also will 

remove certain provisions from the 

Arizona SIP. 

The EPA’s rulemaking action on the 

ADEQ NSR SIP submittal is intended to 

update the applicable SIP consistent 

with ADEQ’s requests, while allowing 

ADEQ to remedy certain deficiencies in 


asabaliauskas on DSK5VPTVN1PROD with RULES
67320 Federal Register / Vol. 80, No. 211 / Monday, November 2, 2015 / Rules and Regulations 

2See Table 2, which identifies those rules and 

statutory provisions that are being removed from 

the Arizona SIP. This updated table corrects certain 

typographical errors in the preamble of our 

proposed action. See our discussion of those errors 

in our responses to comments 14–15 in our 

Response to Comments document. 

3We listed an incorrect submittal date for certain 

rules in the ADEQ NSR SIP submittal in Table 1 of 

our proposed action; this date is corrected in Table 

1 here. See response to comment 13 in our 

Response to Comments document. 

the submittal where ADEQ’s rules do 

not fully meet CAA requirements. In our 

proposed rulemaking action, we 

primarily proposed a limited approval 

and limited disapproval, with certain 

exceptions and additions with respect to 

specific statutory and rule provisions, as 

follows. We proposed partial 

disapproval of two specific components 

of ADEQ’s NSR submittal that we 

believed were analogous to provisions 

in the federal NSR regulations that had 

been vacated by federal Courts and that 

we determined were separable from the 

remainder of the NSR SIP submittal. In 

addition, we proposed a limited 

approval for a portion of ADEQ’s 

nonattainment NSR (NA–NSR) program 

based on requirements of section 189(e) 

of the Act related to the permitting of 

major sources of PM10 and PM2.5

precursors, but did not propose a 

limited disapproval on this basis. For 

two non-NSR rules for which ADEQ 

requested SIP approval, we also 

proposed a limited approval and limited 

disapproval. For a non-NSR statutory 

provision for which ADEQ requested 

SIP approval, A.R.S. § 49–107, we 

proposed full approval into the SIP. 

Last, we proposed to remove numerous 

NSR and non-NSR rules from the SIP as 

requested by ADEQ.2

The ADEQ NSR SIP submittal was 

extensive in scope. We prepared a 

comprehensive Evaluation of the 

submittal in light of the requirements of 

the CAA and its implementing 

regulations, and provided a detailed 

discussion of our findings in the 

Technical Support Document (TSD) for 

our proposed action. Both the 

Evaluation and the TSD were available 

in the docket for our rulemaking during 

the public comment period. Our 

proposed rule discussed our analysis 

and findings, but focused primarily on 

the issues that formed the basis for our 

limited approval/limited disapproval of 

the ADEQ NSR SIP submittal, and 

referenced the TSD for additional 

information concerning our analysis. 

The Evaluation was an attachment to 

the TSD. 

II. The EPA’s Evaluation of the SIP 

Revision 

A. What action is the EPA finalizing? 

The EPA is finalizing a SIP revision 

for the ADEQ portion of the Arizona SIP 

for the rules and statutory provision 

listed in Table 1. The SIP revision will 

be codified in 40 CFR 52.120 by 

incorporating by reference the rules and 

statutory provision in ADEQ’s NSR SIP 

submittal as listed in Table 1.3 Certain 

non-regulatory submittals and 

clarifications provided by ADEQ will 

also be included as part of the Arizona 

SIP in 40 CFR 52.120. In this final 

action, the EPA is relying, in part, on 

the clarifications and interpretations 

provided by ADEQ, as described in the 

discussion of our responses to 

comments in Section II.C below. 

TABLE 1—SUBMITTED STATUTES AND RULES APPROVED IN THIS ACTION

Rule or statute Title 

State 

effective 

date 

Submitted 

A.R.S. § 49–107 ............................................................ Local delegation of state authority ............................... 8/18/1987 07/2/2014 

R18–2–101 [only definitions (2), (32), (87), (109), and 

(122)].

Definitions ..................................................................... 08/07/2012 10/29/2012 

R18–2–217 ................................................................... Designation and Classification of Attainment Areas .... 11/15/1993 10/29/2012 

R18–2–218 ................................................................... Limitation of Pollutants in Classified Attainment Areas 08/07/2012 10/29/2012 

R18–2–301 ................................................................... Definitions ..................................................................... 08/07/2012 10/29/2012 

R18–2–302 ................................................................... Applicability; Registration; Classes of Permits ............. 08/07/2012 10/29/2012 

R18–2–302.01 .............................................................. Source Registration Requirements .............................. 08/07/2012 10/29/2012 

R18–2–303 ................................................................... Transition from Installation and Operating Permit Program to Unitary Permit Program; Registration transition; Minor NSR Transition.08/07/2012 10/29/2012 

R18–2–304 ................................................................... Permit Application Processing Procedures .................. 08/07/2012 10/29/2012 

R18–2–306 ................................................................... Permit Contents ............................................................ 12/20/1999 10/29/2012 

R18–2–306.01 .............................................................. Permits Containing Voluntarily Accepted Emission 

Limitations and Standards.

1/1/2007 10/29/2012 

R18–2–306.02 .............................................................. Establishment of an Emissions Cap ............................ 09/22/1999 10/29/2012 

R18–2–311 ................................................................... Test Methods and Procedures ..................................... 11/15/1993 07/28/2011 

R18–2–312 ................................................................... Performance Tests ....................................................... 11/15/1993 07/28/2011 

R18–2–315 ................................................................... Posting of Permit .......................................................... 11/15/1993 10/29/2012 

R18–2–316 ................................................................... Notice by Building Permit Agencies ............................. 05/14/1979 10/29/2012 

R18–2–319 ................................................................... Minor Permit Revisions ................................................ 08/07/2012 10/29/2012 

R18–2–320 ................................................................... Significant Permit Revisions ......................................... 08/07/2012 10/29/2012 

R18–2–321 ................................................................... Permit Reopenings; Revocation and Reissuance ........ 08/07/2012 10/29/2012 

R18–2–323 ................................................................... Permit Transfers ........................................................... 02/03/2007 10/29/2012 

R18–2–330 ................................................................... Public Participation ....................................................... 08/07/2012 10/29/2012 

R18–2–332 ................................................................... Stack Height Limitation ................................................. 11/15/1993 10/29/2012 

R18–2–334 ................................................................... Minor New Source Review ........................................... 08/07/2012 10/29/2012 

R18–2–401 ................................................................... Definitions ..................................................................... 08/07/2012 10/29/2012 

R18–2–402 ................................................................... General ......................................................................... 08/07/2012 10/29/2012 

R18–2–403 ................................................................... Permits for Sources Located in Nonattainment Areas 08/07/2012 10/29/2012 

R18–2–404 ................................................................... Offset Standards ........................................................... 08/07/2012 10/29/2012 

R18–2–405 ................................................................... Special Rule for Major Sources of VOC or Nitrogen 

Oxides in Ozone Nonattainment Areas Classified 

as Serious or Severe.

08/07/2012 10/29/2012 


asabaliauskas on DSK5VPTVN1PROD with RULES
Federal Register / Vol. 80, No. 211 / Monday, November 2, 2015 / Rules and Regulations 67321 

TABLE 1—SUBMITTED STATUTES AND RULES APPROVED IN THIS ACTION—Continued 

Rule or statute Title 

State 

effective 

date 

Submitted 

R18–2–406 ................................................................... Permit Requirements for Sources Located in Attainment and Unclassifiable Areas.08/07/2012 10/29/2012 

R18–2–407 [excluding subsection (H)(1)(c)] ................ Air Quality Impact Analysis and Monitoring Requirements.08/07/2012 10/29/2012 

R18–2–409 ................................................................... Air Quality Models ........................................................ 11/15/1993 10/29/2012 

R18–2–412 ................................................................... PALs ............................................................................. 08/07/2012 10/29/2012 

In addition, this final action removes 

the rules and appendices listed in Table 

2 from the ADEQ portion of the Arizona 

SIP. 

TABLE 2—SIP RULES AND APPENDICES REMOVED FROM ARIZONA SIP IN THIS ACTION

Rule or appendix Title 

EPA 

approval 

date 

Federal 

Register 

citation 

R9–3–101 [excluding subsection (20)] ......................... Definitions ..................................................................... Various Various 

R9–3–217(B) ................................................................ Attainment Areas: Classification and Standards .......... 04/23/1982 47 FR 17483 

R9–3–301, [excluding subsections (I), (K)] .................. Installation Permits: General ........................................ 05/03/1983 48 FR 19878 

R9–3–302 ..................................................................... Installation Permits in Nonattainment Areas ................ 08/10/1988 53 FR 30220 

R9–3–303 ..................................................................... Offset Standards ........................................................... 08/10/1988 53 FR 30220 

R9–3–304, [excluding subsection (H)] ......................... Installation Permits in Attainment Areas ...................... 05/03/1983 48 FR 19878 

R9–3–305 ..................................................................... Air Quality Analysis and Monitoring Requirements ...... 05/03/1983 48 FR 19878 

R9–3–306 ..................................................................... Source Registration Requirements .............................. 05/03/1983 48 FR 19878 

R9–3–307 ..................................................................... Replacement ................................................................. 05/05/1982 47 FR 19326 

R9–3–308 ..................................................................... Permit Conditions ......................................................... 04/23/1982 47 FR 17483 

R9–3–310 ..................................................................... Test Methods and Procedures ..................................... 10/19/1984 49 FR 41026 

R9–3–311 ..................................................................... Air Quality Models ........................................................ 04/23/1982 47 FR 17483 

R9–3–312 ..................................................................... Performance Tests ....................................................... 04/23/1982 47 FR 17483 

R9–3–314 ..................................................................... Excess Emissions Reporting ........................................ 04/23/1982 47 FR 17483 

R9–3–315 ..................................................................... Posting of Permits ........................................................ 04/23/1982 47 FR 17483 

R9–3–316 ..................................................................... Notice by Building Permit Agencies ............................. 04/23/1982 47 FR 17483 

R9–3–317 ..................................................................... Permit Non-transferrable; Exception ............................ 04/23/1982 47 FR 17483 

R9–3–318 ..................................................................... Denial or Revocation of Installation or Operating Permit.04/23/1982 47 FR 17483 

R8–3–319 ..................................................................... Permit Fees .................................................................. 04/23/1982 47 FR 17483 

R9–3–322 ..................................................................... Temporary Conditional Permits .................................... 10/19/1984 49 FR 41026 

R9–3–1101 ................................................................... Jurisdiction .................................................................... 05/03/1983 48 FR 19878 

Appendix 4 .................................................................... Fee Schedule for Installation and Operating Permits .. 09/19/1977 42 FR 46926 

Appendix 5 .................................................................... Fee Schedule for Conditional Permits ......................... 09/19/1977 42 FR 44926 

In summary, this action is primarily a 

limited approval and limited 

disapproval of a SIP submittal from 

Arizona for the ADEQ portion of the 

Arizona SIP that governs 

preconstruction review and the issuance 

of preconstruction permits for stationary 

sources, including the review and 

permitting of new major sources and 

major modifications under parts C and 

D of title I of the CAA as well as review 

of new and modified minor sources. The 

intended effect of our final limited 

approval and limited disapproval action 

is to update the applicable SIP with 

current ADEQ regulations, while 

allowing ADEQ to remedy the identified 

deficiencies in these regulations. We are 

also removing at ADEQ’s request certain 

rules and appendices from the Arizona 

SIP, which are outdated and which are 

mostly being superseded by this action. 

In addition, we are finalizing a partial 

disapproval of one provision in ADEQ’s 

NSR program that has been vacated by 

the courts. We are finalizing a limited 

approval of ADEQ’s NA–NSR program 

for certain nonattainment areas based on 

requirements under section 189 of the 

Act related to PM10 and PM2.5

precursors (without a limited 

disapproval on this basis). Last, we are 

finalizing a limited approval and 

limited disapproval of two ADEQ nonNSR rules relating to test methods and 

procedures and performance tests, and 

finalizing the approval of an Arizona 

statutory provision relating to local 

delegation of state authority. 

We are finalizing the above-described 

action because, although we find that 

the new and amended rules submitted 

by ADEQ meet most of the applicable 

CAA requirements for preconstruction 

review programs and other CAA 

requirements, and that overall the SIP 

revisions improve and strengthen the 

existing SIP, we have found certain 

deficiencies that prevent full approval, 

as explained in our proposed action and 

in the TSD for this rulemaking, and in 

this final action and our Response to 

Comments document. 

We reviewed the ADEQ NSR SIP 

submittal in accordance with applicable 

CAA requirements, primarily including 

those that apply to: (1) General 

preconstruction review programs, 

including for minor sources, under 

section 110(a)(2)(C) of the Act; (2) PSD 

permit programs under part C of title I 

of the Act; and (3) NA–NSR permit 

programs under part D of title I of the 

Act. For the most part, ADEQ’s 

submittal satisfies the applicable CAA 

requirements, including those for these 

preconstruction review programs, and 

our approval will strengthen the 

applicable SIP by updating the 


asabaliauskas on DSK5VPTVN1PROD with RULES
67322 Federal Register / Vol. 80, No. 211 / Monday, November 2, 2015 / Rules and Regulations 

4 Due to a typographical error, in discussing this 

issue, the notice for our proposed action 

inadvertently referenced subsection (G) of R18–2– 

334 instead of subsection (E). 

5Our proposed action also points out that certain 

terminology used in ADEQ’s PSD rules with respect 

to the increments is not clear, and that ADEQ’s 

rules contain provisions that allow for exclusions 

from increment consumption for certain temporary 

emissions that do not conform to the analogous 

federal regulatory requirements. These issues 

provided a basis for our proposed limited 

disapproval of ADEQ’s PSD program. See Section 

II.C.1 of the preamble at 80 FR 14051. Neither this 

commenter nor any other commenter addressed 

these specific issues, thus we continue to believe 

that these issues are deficiencies that ADEQ must 

correct for full approval of the PSD portion of the 

ADEQ NSR SIP submittal, and these issues provide 

a basis for our final limited disapproval. 

6 71 FR 48696, 48701 (Aug. 21, 2006). 

regulations and adding provisions to 

address new or revised federal NSR 

permitting and other requirements. 

However, the submitted rules also 

contain specific deficiencies and 

inconsistencies with CAA requirements 

that prevent us from granting full SIP 

approval. These deficiencies form the 

basis for our limited approval and 

limited disapproval action, and for our 

partial disapproval of one rule 

provision. 

B. What changes is the EPA making 

from its proposed action? 

We are largely finalizing our action as 

proposed. However, in response to 

public comments we received, our final 

action differs in some respects from our 

proposed action. For certain 

deficiencies identified in our proposal 

as bases for limited disapproval, we 

have changed our determination and no 

longer find that these are bases for our 

limited disapproval. In addition, we 

have changed our determination 

concerning one of the ADEQ rule 

provisions for which we had proposed 

partial disapproval; we are not 

finalizing our partial disapproval of this 

provision. 

Specifically, the following issues that 

had been identified in our proposed 

action as bases for limited disapproval 

are not a basis for our final limited 

disapproval: (1) ADEQ’s use of the term 

‘‘proposed final permit’’ in its rules for 

the minor NSR, PSD and NA–NSR 

programs; (2) a question concerning 

whether ADEQ rule R18–2–334(E) 

requires ADEQ to review potential 

impacts on the attainment and 

maintenance of the National Ambient 

Air Quality Standards (NAAQS) for all 

minor sources subject to new source 

review under ADEQ rule R18–2–334;4

(3) the lack of a definition in ADEQ’s 

PSD regulations for the term ‘‘subject to 

regulation;’’ (4) the lack of a reference in 

ADEQ’s PSD rules to pollutants subject 

to regulation in the definition of 

‘‘regulated NSR pollutant,’’ per 40 CFR 

51.166(b)(49)(iv); (5) the lack of certain 

language in ADEQ’s PSD rules 

concerning condensable particulate 

matter, per 40 CFR 51.166(b)(49)(i); (6) 

potential ambiguity as to whether 

references to the undefined term 

‘‘Arizona Ambient Air Quality 

Standards’’ in ADEQ’s NSR regulations 

refer to ADEQ’s Article 2 air quality 

standards; (7) language concerning the 

calculation of baseline actual emissions 

under ADEQ’s plantwide applicability 

limits (PALs) provisions for the PSD and 

NA–NSR programs; and (8) public 

notice requirements for alternative or 

modified air modeling under ADEQ’s 

rules for the PSD program. In addition, 

we are not finalizing a partial 

disapproval of ADEQ’s definition for 

‘‘basic design parameter.’’ We now find 

the ADEQ NSR SIP submittal 

approvable with respect to these 

particular issues. Our rationale for 

changing our determination on these 

issues is included in our Response to 

Comments document for this action, 

and some of these issues are also 

discussed in the Public Comments and 

Responses section below. 

In addition, we are making three 

technical corrections to address 

typographical errors, as noted by 

commenters: (1) Correction of SIP 

submittal dates listed in Table 1 (listing 

the rules and statutory provisions that 

we are approving into the SIP) so that 

‘‘10/29/2012’’ is listed instead of ‘‘10/

29/2014,’’ (2) correction of Table 2 (the 

list of rules and appendices that we are 

removing from the SIP) to exclude 

subsection (20) from the provisions of 

ADEQ rule R9–3–101 that we are 

removing from the SIP, and (3) the 

addition of ADEQ rules R9–3–310 and 

R9–3–312 to the list of rules in Table 2. 

Additional detail regarding these 

technical corrections is provided in 

response to comments 13 through 15 in 

our Response to Comments document. 

C. Public Comments and Responses 

Our March 18, 2015 proposed rule 

included a 30-day public comment 

period that ended on April 17, 2015. We 

received 3 written comments, one each 

from the Office of Robert Ukeiley, the 

Salt River Project Agricultural 

Improvement and Power District (SRP), 

and ADEQ. Copies of each comment 

have been added to the docket for this 

action and are accessible at 

www.regulations.gov. Our Response to 

Comments document in the docket for 

this action contains a summary of all 

comments received and the EPA’s 

responses to the comments. Below we 

provide the major issues raised by 

commenters and our responses to those 

comments. 

Comment 1: 

The Federal Register notice does not 

make it clear if the Arizona rules 

proposed to be approved into the SIP 

include the PM2.5 increments. The EPA 

must disapprove this rule if it does not 

include the PM2.5 increments. 

Response 1: 

In the EPA’s March 18, 2015 Federal 

Register notice, we proposed to approve 

ADEQ rule R18–2–218 into the Arizona 

SIP, and stated ‘‘ADEQ adopted the 

increments, or maximum allowable 

increases, in R18–2–218—Limitation of 

Pollutants in Classified Attainment 

Areas.’’ 80 FR 14044, 14045, 14051. The 

PM2.5 increments are included in 

Section A of ADEQ rule R18–2–218. As 

such, ADEQ submitted, and we are 

approving into the Arizona SIP, ADEQ 

rule R18–2–218 containing the PM2.5

increments.5

Comment 2: 

ADEQ states that its methodology for 

establishing minor NSR thresholds was 

valid for all areas under ADEQ’s 

jurisdiction. The CAA does not impose 

strict, specific requirements on NSR 

programs for minor sources, as it does 

for major NSR. Rather, section 

110(a)(2)(C) generally requires that each 

state include a program regulating the 

modification and construction of any 

stationary source as necessary to assure 

achievement of the NAAQS. The sizes 

of minor source facilities, buildings, 

structures, or installations are assessed 

and compared to threshold levels to 

determine whether their potential to 

emit is so high as to affect the NAAQS. 

Each state establishes its own threshold 

levels to define the limits of its minor 

NSR regulations to create an effective 

pollution control strategy without also 

creating unnecessary regulatory burden. 

Citing the EPA’s proposed Tribal NSR 

Rule, ADEQ states that in the past, the 

EPA has asserted that threshold levels 

are appropriate where ‘‘sources and 

modifications with emissions below the 

thresholds are inconsequential to 

attainment and maintenance of the 

NAAQS.’’ 6 In creating a federal minor 

NSR program for Indian Country, the 

EPA emphasized the importance of a 

cost-effective plan, as well as one that 

reduces the burden on sources and 

reviewing authorities. 

ADEQ set an adequate, yet costeffective threshold level of one half the 

significant emission rate (SER) for 

nonattainment areas. Just as the EPA did 

in the Tribal Minor NSR Rule, ADEQ 

identified the level at which a lower 

threshold merely creates a larger pool of 

regulated minor sources without 


asabaliauskas on DSK5VPTVN1PROD with RULES
Federal Register / Vol. 80, No. 211 / Monday, November 2, 2015 / Rules and Regulations 67323 

7The EPA provided the same table in its TSD for 

this action. See Table 5 of the TSD—Results of 

ADEQ’s Stationary Source Distribution Analysis. 

8See ADEQ’s April 17, 2015 comment letter at 14. 

9We note that the reasoning the EPA provides in 

these responses to comments concerning NSR 

exemption thresholds in nonattainment areas 

would apply equally to our review of the basis for 

NSR exemption thresholds for PM2.5 in 

nonattainment areas. 

substantially reducing emissions. 

Research data provided by a consultant 

was used to make an informed 

determination which threshold levels 

would in fact be most cost-effective, 

while still achieving the goals of the 

minor source program. ADEQ included 

a table of the results provided by its 

contractor for two potential NSR 

threshold scenarios.7 Scenario 1 

illustrates the impact of a minor 

threshold of one half the SER and 

Scenario 2 illustrates the impact of a 

threshold set at one quarter the SER. 

Lowering the threshold beyond one half 

the SER essentially doubles the 

percentage of sources regulated, which 

certainly increases the state’s ability to 

reach more minor sources. However, 

regulating more sources does not 

necessarily translate to effective 

emissions reductions. Rather there is a 

diminishing return on emission 

reductions as the threshold level is 

pushed further down to include sources 

with fewer emissions. 

ADEQ illustrated this statement 

through a figure provided in its 

comments showing a comparison of 

potential threshold levels and relative 

impact, by pollutant.8 The figure 

compares the percent of emissions 

regulated with the percent of sources 

regulated at the two NSR exemption 

scenarios considered by ADEQ. ADEQ 

states that the slopes between the 

significance level points in the graph for 

each pollutant illustrate the incremental 

percentage of emissions that would be 

covered when the threshold level is 

moved from one half to one quarter. 

Both possible threshold options would 

result in a relatively large percentage of 

emissions from minor sources becoming 

subject to regulation. However, the 

average emissions covered per source 

decreases significantly for all additional 

sources that fall below one half of the 

significant level. The disproportionate 

effect between the changes in the 

amount of sources relative to the change 

in the amount of emissions covered 

provides a firm basis for ADEQ’s 

decision. The thresholds in ADEQ’s 

minor NSR program meet federal 

requirements without creating a system 

in which the burdens of regulation 

would outweigh the benefits to air 

quality. 

Response 2: 

As noted by ADEQ, CAA section 

110(a)(2) generally requires that each 

state include a program regulating the 

modification and construction of any 

stationary source as necessary to assure 

achievement of the NAAQS. While we 

appreciate ADEQ’s comments on this 

issue, to date, ADEQ has not provided 

sufficient information about the nature, 

scope and emissions that are 

contributing to nonattainment in the 

areas subject to ADEQ’s jurisdiction to 

change our proposed determination that 

ADEQ has not provided an adequate 

basis for its NSR exemption thresholds 

as applied in such nonattainment areas. 

The implementing regulations for the 

minor NSR program make clear that 

SIPs must include legally enforceable 

procedures that enable the 

decisionmaking authority to determine 

whether the construction or 

modification of stationary sources will 

result in a violation of applicable 

portions of the control strategy or 

interfere with attainment or 

maintenance of the NAAQS, and that 

such procedures include means by 

which the decisionmaking authority can 

prevent such construction or 

modification if it will result in such 

violation or interference. 40 CFR 

51.160(a) and (b). Further, 40 CFR 

51.160(e) provides: 

The procedures must identify types and 

sizes of facilities, buildings, structures or 

installations which will be subject to review 

under this section. The plan must discuss the 

basis for determining which facilities will be 

subject to review. 

Under CAA section 110(a)(2) and 40 

CFR 51.160(e), we agree with ADEQ that 

States are not necessarily required to 

regulate all stationary sources under the 

minor NSR program. States can exempt 

from review those stationary sources 

with emissions that they can 

demonstrate would not pose a threat to 

the attainment or maintenance of the 

NAAQS, thereby satisfying the 

requirement in CAA section 110(a)(2)(C) 

that their minor NSR program regulate 

the modification and construction of 

any stationary source within the areas 

covered by the plan as necessary to 

ensure that the NAAQS are achieved. 

The EPA’s interpretation was discussed 

in the proposal for our Tribal Minor 

NSR Rule: 

A review of several State minor NSR 

programs indicated that a number of State 

programs have established cutoff levels or 

minor NSR thresholds, below which sources 

are exempt from their minor NSR rules. We 

believe that such an approach is also 

appropriate in Indian country. Section 

110(a)(2)(C) of the Act requires minor NSR 

programs to assure that the NAAQS are 

attained and maintained. Applicability 

thresholds are proper in this context 

provided that the sources and modifications 

with emissions below the thresholds are 

inconsequential to attainment and 

maintenance of the NAAQS. For each 

pollutant, only around 1 percent (or less) of 

total emissions would be exempt under the 

minor NSR program. 

Review of New Sources and 

Modifications in Indian Country, 

Proposed Rule, 71 FR 48696, 48703 

(Aug. 21, 2006); see also Review of New 

Sources and Modifications in Indian 

Country, Final Rule, 76 FR 38758 

(finding that sources with emissions 

below the NSR exemption thresholds 

selected by the EPA in the Tribal Minor 

NSR Rule would be inconsequential to 

attainment or maintenance of the 

NAAQS). We note that in our Tribal 

NSR Rule, ‘‘the selected minor source 

thresholds distinguish between minor 

stationary sources of regulated NSR 

pollutants located in nonattainment 

areas and attainment areas,’’ with lower 

thresholds in nonattainment areas. 71 

FR at 48702; see 76 FR at 38758 

(finalizing thresholds as proposed). 

In our proposed action on ADEQ’s 

NSR SIP submittal, we found 

deficiencies in the basis ADEQ provided 

for determining which sources would be 

subject to review under its minor NSR 

program under 40 CFR 51.160(e), 

applying the statutory and regulatory 

standard discussed above. 80 FR at 

14049. These deficiencies provided a 

basis (among other bases) for our 

proposed limited disapproval of ADEQ’s 

minor NSR program. As stated in our 

proposal, we found ADEQ’s general 

approach to meeting 40 CFR 51.160(e) 

acceptable. However, we proposed a 

limited disapproval for three aspects of 

ADEQ’s minor NSR program under 40 

CFR 51.160(e): The adequacy of ADEQ’s 

NSR exemption thresholds for 

nonattainment areas; certain exemptions 

for agricultural and fuel burning 

equipment; and the lack of any basis for 

the PM2.5 NSR exemption threshold in 

any areas under ADEQ’s jurisdiction. 

None of the comments on our proposal 

addressed our proposed limited 

disapprovals related to agricultural and 

fuel burning equipment exemptions or 

the missing explanation in the submittal 

for the PM2.5 NSR exemption threshold. 

As such, we continue to determine that 

these two issues warrant a limited 

disapproval, and further consider 

ADEQ’s comments as they apply to the 

basis provided for ADEQ’s NSR 

exemption thresholds for pollutants in 

nonattainment areas.9

ADEQ’s comments focus largely on 

the argument that expanding its minor 


asabaliauskas on DSK5VPTVN1PROD with RULES
67324 Federal Register / Vol. 80, No. 211 / Monday, November 2, 2015 / Rules and Regulations 

NSR program to cover even smaller 

sources (i.e., sources with emissions of 

approximately 1⁄4 of the PSD significant 

emission rates) would result in 

diminishing returns on emission 

reductions. ADEQ argues that while 

more emissions would be regulated 

under such an approach, in some 

instances, this would result in 

significantly more stationary sources 

becoming subject to the program. In the 

case of VOC, for example, the 

percentage of all stationary sources 

regulated would approximately double 

from 8% to 16%. ADEQ appears to 

reason that while ADEQ would be able 

to regulate more emissions with such a 

lower threshold, the types of projects 

brought into the program would be 

smaller and less likely to be regulated in 

a way to achieve useful emission 

reductions. However, as discussed 

above, our determination of whether a 

minor NSR program is sufficient to meet 

CAA SIP requirements is based on 

whether the State has provided an 

adequate basis that the exempt 

emissions do not need to be reviewed to 

ensure attainment and maintenance of 

the NAAQS in the particular geographic 

areas covered by the program because 

they are inconsequential to attainment 

or maintenance, considering the 

particular air quality concerns in such 

areas. The information provided by 

ADEQ to date, including the amount of 

sources regulated as compared with the 

volume of emissions per such source, 

does not demonstrate that the adopted 

thresholds are those necessary to assure 

attainment and maintenance of the 

NAAQS. For example, if an area 

happens to have a large volume of 

sources in a particular source category 

that are typically minor sources but emit 

the pollutants that contribute to 

nonattainment, then regulation of those 

sources may be necessary to assure 

attainment and maintenance of the 

NAAQS in that area. The thresholds 

established in the Tribal NSR Rule 

exempted around 1 percent of total 

emissions, while exempting from 42 

percent to 76 percent of sources, 

depending on the pollutant. 76 FR at 

68758. 

We recognize that the reference that 

the EPA made in its proposed action to 

ADEQ’s submittal not providing a clear 

basis for concluding that its NSR 

exemption thresholds would ensure that 

a ‘‘sufficient percentage of minor 

sources’’ would be subject to review in 

nonattainment areas, rather than 

referring to a ‘‘sufficient percentage of 

minor source emissions,’’ was imprecise 

and may have led to confusion about the 

nature of the EPA’s concern. As such, 

we are clarifying that our disapproval is 

related to ensuring that ADEQ’s NSR 

program exempts from review only 

those sources with emissions that do not 

pose a threat to attainment and 

maintenance of the NAAQS because 

they are inconsequential to attainment 

or maintenance. The particular 

percentage of stationary sources that are 

being regulated would generally not be 

an adequate basis under 40 CFR 

51.160(e) for determining the sizes and 

types of stationary sources that will be 

subject to NSR review as necessary to 

ensure compliance with CAA section 

110(a)(2) and 40 CFR 51.160(a) and (b). 

As noted, the Tribal NSR Rule exempted 

as many as 76 percent of the sources of 

a pollutant, but required review of about 

99% of total emissions. 76 FR at 38758. 

In this case, ADEQ has not shown that 

the emissions exempt from its NSR 

program will not threaten attainment 

and maintenance of the NAAQS in its 

nonattainment areas. Accordingly, after 

consideration of ADEQ’s comments, we 

continue to find that a limited 

disapproval of ADEQ’s program under 

40 CFR 51.160(e), as it pertains to the 

NSR exemption threshold for 

nonattainment areas, is necessary. 

As stated in our proposal, in 

addressing this deficiency, ADEQ does 

not necessarily have to consider overall 

lower NSR exemption thresholds in 

nonattainment areas, see 80 FR 14049 n. 

13, although, as noted, the Tribal NSR 

Rule established lower thresholds for 

nonattainment areas. 76 FR at 38758. 

For example, ADEQ could provide 

further analysis to demonstrate that the 

adopted thresholds are protective of the 

NAAQS in nonattainment areas, or 

ADEQ could consider a different 

approach, such as requiring minor 

sources in nonattainment areas subject 

to a pre-existing SIP requirement for the 

nonattainment pollutant, or its 

precursors, to be subject to review under 

ADEQ’s registration program. In 

addressing this limited disapproval 

issue, we recommend that ADEQ focus 

its consideration on the contribution 

that emissions from minor stationary 

sources with emissions below its 

currently adopted NSR exemption 

thresholds are expected to make with 

respect to attainment and maintenance 

of the NAAQS in nonattainment areas. 

In addition, we wish to clarify that 

while the EPA’s proposed rulemaking 

for the Tribal NSR program discussed 

cost-effectiveness and attempted to 

strike a ‘‘balance between 

environmental protection and economic 

growth,’’ it also recognized the need for 

exemption thresholds to ensure ‘‘that 

sources with emissions below the 

proposed minor NSR thresholds will be 

inconsequential to attainment and 

maintenance of the NAAQS.’’ 71 FR at 

48703. See also 76 FR at 38758. The 

EPA recognized the overarching need 

for standards stringent enough to ensure 

NAAQS protection, and agreed to 

‘‘consider changing the minor NSR 

thresholds as appropriate’’ to ensure 

that they are sufficiently protective. 76 

FR at 38759. Thus, cost-effectiveness is 

not a relevant criterion for determining 

whether a minor NSR program’s 

exemption thresholds will assure 

attainment and maintenance of the 

NAAQS, and the test is not whether the 

benefits of the program outweigh the 

burdens of regulation, but whether the 

state’s program meets the requirement 

in CAA section 110(a)(2)(C) to ‘‘assure 

that national ambient air quality 

standards are achieved.’’ 

Comment 3: 

SRP and ADEQ state that the EPA 

may not substitute its policy preferences 

for ADEQ’s in proposing to disapprove 

ADEQ’s minor NSR program with 

respect to nonattainment areas. There 

are no regulatory provisions or CAA 

statutory provisions that specify that a 

State must regulate a ‘‘sufficient 

percentage’’ of minor sources in 

nonattainment areas. The EPA’s 

objection appears to be based on its own 

policy preferences, and the EPA simply 

lacks authority to substitute its 

preferences for those of the State. The 

EPA points to no flaws in the reasoning 

behind the analysis, nor does the EPA 

provide an alternative analysis 

demonstrating that modifications or 

construction of minor sources of a 

certain size or type have caused air 

quality concerns within ADEQ’s 

jurisdiction. 

Further, each state, region, and 

control area encounters unique 

circumstances that contribute to air 

quality issues, as well as the strategies 

necessary to comply with the 

requirements of the CAA. At page 14049 

n. 12 of the proposal, which 

accompanied a generalized comparison 

to other states, the EPA referenced 

threshold levels for Sacramento, 

California. It is erroneous for the EPA to 

compare Arizona’s minor NSR program 

with that of California, due to the 

extraordinary severity of the 

nonattainment problems in California. 

The EPA’s implication that ADEQ 

should create a minor source NSR 

program that looks and functions like 

other states, and particularly California, 

is an improper basis for disapproval. 

ADEQ also asserts that the EPA has 

advanced no reason for concluding that 

ADEQ’s analysis is any less valid for 

nonattainment areas than it is for 

attainment areas. 


asabaliauskas on DSK5VPTVN1PROD with RULES
Federal Register / Vol. 80, No. 211 / Monday, November 2, 2015 / Rules and Regulations 67325 

10We addressed the comment concerning the 

reference in the EPA’s proposal to regulation of a 

‘‘sufficient percentage of minor sources’’ in our 

response to comment 2. 

11We acknowledge that ADEQ’s analysis 

explained that sources that contribute to 

noncompliance with the SO2 NAAQS are welldefined, large industrial sources already subject to 

the permitting program. However, ADEQ’s analysis 

did not provide information or details to support 

these statements or otherwise provide information 

sufficient to allow the EPA to reach the conclusion 

that the NSR exemption thresholds selected by 

ADEQ exempt only those stationary sources with 

emissions that do not pose a threat to attainment 

and maintenance of the NAAQS in nonattainment 

areas. 

12There was a typographical error in our FR 

notice that referenced a ‘‘Table 3,’’ when there was 

not a Table 3 in the Federal Register notice. The 

notice should have referenced Table 3 of our TSD. 

Response 3: 

Contrary to the commenters’ 

assertions, our proposed limited 

disapproval of ADEQ’s program 

concerning the NSR exemption 

threshold for nonattainment areas was 

not based on a policy preference by the 

EPA to regulate ‘‘more’’ sources in 

nonattainment areas. As explained in 

detail in our response to comment 2, the 

EPA’s proposed disapproval based on 

40 CFR 51.160(e) stemmed in part from 

the lack of sufficient justification in 

ADEQ’s NSR submittal to support its 

chosen thresholds for coverage of the 

minor NSR program in nonattainment 

areas as required by 40 CFR 51.160(e) 

and CAA section 110(a)(2). It is the 

State’s obligation to demonstrate that 

emissions from sources exempt under 

its chosen NSR exemption threshold 

will not pose a threat to attainment or 

maintenance of the NAAQS. We found 

at the time of our proposal that ADEQ 

had not done so with respect to the NSR 

exemption thresholds in nonattainment 

areas, and we continue to find that this 

is the case.10

Our March 18, 2015 proposed action 

made clear that ADEQ could consider 

various options for addressing this 

deficiency and we did not mandate that 

ADEQ adhere to a particular policy 

choice of the EPA in this regard. 80 FR 

at 14049 and n. 13. See also response to 

comment 2. The EPA agrees with the 

commenters that ADEQ has the 

discretion to determine the types and 

sizes of sources that need to be 

regulated under its NSR program to 

attain and maintain the NAAQS. But 

ADEQ, like other States, must provide a 

reasoned basis for the scope of 

emissions (and stationary sources of 

such emissions) regulated under its 

program that demonstrates that 

exemption of such emissions from NSR 

review will not threaten the attainment 

and maintenance of the NAAQS in 

nonattainment areas. 

Air quality concerns in nonattainment 

areas differ from those in attainment 

areas and thus the measures necessary 

to attain and maintain the NAAQS may 

be more stringent in nonattainment 

areas than in attainment areas. When an 

area is already in nonattainment with a 

NAAQS for a particular pollutant, it is 

logical to conclude that relatively low 

levels of emissions increases of that 

nonattainment pollutant may well 

contribute to nonattainment and 

interfere with achievement of the 

NAAQS, while a source with the same 

level of emissions in an attainment area 

may pose little threat to maintaining the 

NAAQS. Thus, SIPs may need to 

provide greater or more detailed 

justification for exempting smaller 

sources of emissions from NSR review 

in nonattainment areas, depending on 

the particular air quality concerns in the 

area at issue. Indeed, as noted, the 

EPA’s Tribal NSR Rule established more 

stringent thresholds for minor NSR in 

nonattainment areas, in most cases at 

50% of the thresholds for attainment 

areas. 76 FR 38758 (Table). 

ADEQ’s jurisdiction covers both 

attainment and nonattainment areas, 

and ADEQ’s analysis supporting its NSR 

exemption thresholds made no 

distinction between these types of areas 

nor did it provide additional 

information to support the thresholds in 

nonattainment areas under ADEQ’s 

jurisdiction. For example, ADEQ’s 

analysis indicated that it would exempt 

approximately 65% of CO emissions, 

78% of SO2 emissions, and 40% of VOC 

emissions from review under its NSR 

program. By comparison, the EPA’s 

analysis for the Tribal Minor NSR 

program, cited by ADEQ in its analysis, 

demonstrated that the EPA anticipated 

exempting around 1% of stationary 

source emissions from review under 

NSR, based on National Emissions 

Inventory data for all stationary point 

source emissions in both attainment and 

nonattainment areas. As such, ADEQ 

did not provide enough detail to 

demonstrate that NSR review of 

emissions from the exempted sources 

would not be necessary for attainment 

and maintenance of the NAAQS in 

nonattainment areas because sources 

below the thresholds would be 

‘‘inconsequential to attainment or 

maintenance of the NAAQS.’’ 76 FR at 

38758. Accordingly, we found that 

ADEQ had not provided an adequate 

basis under 40 CFR 51.160(e) for its NSR 

program exemption thresholds as they 

pertain to nonattainment areas. 

In the case of attainment areas, the 

EPA is approving the basis provided by 

ADEQ for its selected NSR exemption 

thresholds. We find it reasonable to 

conclude, based on the information and 

analysis provided by ADEQ, that 

expanding the NSR program to cover 

more emissions in areas that are already 

attaining the NAAQS will ensure that 

those areas will continue to attain and 

maintain the NAAQS. We cannot reach 

the same conclusion for nonattainment 

areas where the minor sources in a 

particular nonattainment area may, in 

fact, significantly contribute to 

nonattainment in that area.11

The reference in our proposal to the 

approaches taken by other permitting 

programs, including a California agency, 

with respect to NSR exemption 

thresholds in nonattainment areas is not 

an indication that the EPA believes that 

such approaches or thresholds are 

required for ADEQ, but simply 

information showing that it is common 

for agencies in nonattainment areas to 

find it necessary to regulate more 

emissions. In providing this 

information, the EPA was not suggesting 

that there was a particular percentage of 

emissions that should be regulated, but 

that other nonattainment areas have 

found it necessary to exempt fewer 

emissions from their programs 

(including Maricopa County, Arizona, 

Colorado, and the EPA’s Tribal Minor 

NSR rule, which were also referenced in 

our proposed action).12 It was ADEQ’s 

lack of demonstration that its selected 

thresholds are adequate to ensure 

attainment and maintenance of the 

NAAQS in light of the specific air 

quality issues in the nonattainment 

areas under its jurisdiction that led to 

our proposed disapproval. 

In sum, the EPA did not conclude that 

ADEQ’s NSR exemption thresholds are 

necessarily deficient, or suggest that 

some other agency’s threshold must be 

applied. The EPA’s proposed limited 

disapproval for ADEQ’s NSR exemption 

thresholds for nonattainment areas 

under 40 CFR 51.160(e) relates only to 

the fact that ADEQ had not provided an 

adequate basis for the thresholds that 

were set for these areas. As discussed in 

response to comment 2, our final 

limited disapproval is also based on this 

finding. 

Comment 4: 

ADEQ submitted comments related to 

the EPA’s proposed limited disapproval 

of ADEQ’s NSR SIP submittal for its use 

of the term ‘‘proposed final permit.’’ 

ADEQ explains that the purpose of 

allowing sources to construct after 

issuance of a proposed final permit—the 

version of the permit that ADEQ 


asabaliauskas on DSK5VPTVN1PROD with RULES
67326 Federal Register / Vol. 80, No. 211 / Monday, November 2, 2015 / Rules and Regulations 

13The notice for our proposed action noted 

discussed the fact that we interpret the CAA to 

require an opportunity for judicial review of a 

decision to grant or deny a PSD permit, whether 

issued by the EPA or by a State under a SIPapproved or delegated PSD program. See 80 FR 

14053. 

14We agree that ADEQ has authority to decline 

to issue a proposed final permit for a particular 

source if it finds that the emissions from such 

source would result in a violation of applicable 

portions of the control strategy or would interfere 

with the attainment or maintenance of the NAAQS. 

However, in cases where a permit requirement 

would be needed to ensure compliance with the 

NAAQS for a particular source, if such a permit 

decision were not final, binding and enforceable at 

the time construction of the source was authorized, 

there would not be a legally enforceable procedure 

in place to prevent construction of that source in 

a manner that could violate the NAAQS as required 

by 40 CFR 51.160. 

15See June 8, 2015 email ‘‘Clarification of ADEQ’s 

Comments on the EPA’s Proposed Action’’ from 

Eric C. Massey, Air Quality Division Director at 

ADEQ to Lisa Beckham, Air Permits Office, EPA 

Region 9. 

forwards to the EPA for review under 

the title V program for title V sources— 

is to ensure that Arizona’s unitary 

permit program does not place 

restrictions on Arizona industries that 

they would not face in jurisdictions 

with binary permitting programs. Under 

a binary program, separate permits are 

issued to construct and operate, and 

only permits to operate are subject to 

the EPA’s review under title V. Thus a 

source in a jurisdiction with a binary 

program ordinarily would have the 

authority to proceed with construction 

under a construction permit before the 

EPA’s review of the title V permit or 

permit revision occurred. 

ADEQ specifically takes issue with 

the EPA’s proposed determination that 

the program does not provide ADEQ 

with clear authority to prevent 

construction or modification before it 

issues a final decision on the request for 

authority to construct as is required per 

40 CFR 51.160(a) and (b). 80 FR at 

14048. ADEQ states that this objection 

is invalid for two reasons. First, 40 CFR 

51.160(b) does not require a minor NSR 

program to include authority to prevent 

construction ‘‘before [an agency] issues 

a final decision.’’ It requires only that 

the program include procedures by 

which the agency ‘‘will prevent . . . 

construction or modification.’’ The 

Arizona program manifestly includes 

such procedures: ADEQ can prevent 

construction of a source that threatens 

the NAAQS or control strategy by 

denying the permit application before a 

proposed final permit is issued. No 

more is required. Second, by ‘‘final’’ the 

EPA appears to mean subject to 

administrative and judicial review. See 

80 FR at 14053. The EPA maintains that 

although ADEQ has issued guidance 

stating that it ‘‘will treat [a] proposed 

final permit as a final, appealable 

agency action,’’ the rule itself is not 

sufficiently clear to be fully approved. 

80 FR at 14048. 

The EPA, however, has 

mischaracterized ADEQ’s guidance. 

ADEQ did not state that it ‘‘will treat’’ 

proposed final permits’’ as appealable 

agency actions. Rather, the Department 

stated that it ‘‘must’’ do so. Under 

Arizona administrative law, an 

‘‘appealable agency action’’ is defined as 

‘‘an action that determines the legal 

rights, duties or privileges of a party.’’ 

A.RS. § 41–1092(3). Because a proposed 

final permit or permit revision under 

the revised rules determines the 

applicant’s right to construct, it must be 

treated as an appealable agency action 

separate from the issuance of the final 

permit or permit revision. ADEQ must 

therefore issue a notice of appealable 

agency action under A.R.S § 41–1092.03 

for both the proposed final permit or 

permit revision, as well as the final 

permit or permit revision. 

ADEQ states that there is no 

ambiguity under Arizona law (which 

mirrors the administrative law of most 

states). Under the clear terms of ADEQ’s 

regulations, a proposed final permit 

confers a right to construct and is 

therefore appealable. 

Response 4: 

The EPA appreciates ADEQ’s 

comments concerning the question of 

whether ADEQ’s NSR program provides 

for the issuance of a final NSR decision 

prior to sources being allowed to begin 

construction. Our proposed action on 

ADEQ’s NSR SIP submittal stated that 

certain sources were allowed to begin 

construction upon issuance of a 

proposed final permit, and that we 

believed that ADEQ’s regulations were 

ambiguous as to whether issuance of a 

‘‘proposed final permit’’ was a final NSR 

decision. As a result, we proposed to 

find that ADEQ’s NSR SIP submittal did 

not satisfy several related CAA 

requirements, and those deficiencies 

provided some of the bases for our 

proposed limited disapproval of ADEQ’s 

PSD program, NA–NSR program, and 

minor NSR program. 

The EPA continues to believe that the 

CAA and its implementing regulations 

require that PSD and NA–NSR programs 

must provide for the issuance of final 

NSR permit decisions imposing permit 

conditions necessary to ensure 

compliance with the applicable NSR 

program requirements before sources 

subject to those programs may begin 

construction. We also interpret the CAA 

to require that PSD programs provide an 

opportunity for judicial review of PSD 

permit decisions. See generally CAA 

sections 110(a)(2)(C), 165, 172(c)(5), 

173; 40 CFR 51.165(a)(2), 

51.166(a)(7)(iii), 166(q)(2)(vii).13

The CAA and its implementing 

regulations also require that minor NSR 

programs provide for legally enforceable 

procedures including means by which 

the Agency responsible for final 

decisionmaking on an application for 

approval to construct or modify has 

authority to prevent such construction 

or modification if such construction or 

modification will result in a violation of 

applicable portions of the control 

strategy or will interfere with the 

attainment or maintenance of a NAAQS. 

CAA section 110(a)(2)(C), 40 CFR 

51.160(a)–(b). We continue to believe 

that decisionmaking authorities must 

make final NSR decisions for minor 

sources, as well as major sources, 

subject to their NSR program prior to 

allowing sources to begin construction 

in order to satisfy this requirement that 

the plan provide for such ‘‘legally 

enforceable procedures.’’ 14

The EPA acknowledges the 

interpretation that ADEQ recently 

provided to clarify that ADEQ must treat 

‘‘proposed final permits’’ as ‘‘appealable 

agency actions,’’ which are defined 

under Arizona law as actions that 

‘‘determine[] the legal rights, duties or 

privileges of a party’’ pursuant to A.R.S. 

section 41–1092(3). ADEQ 

Memorandum—Proposed Final Permits 

to Be Treated as Appealable Agency 

Actions, dated February 10, 2015. ADEQ 

also provided additional clarifications 

after the end of the public comment 

period, specifically stating that 

‘‘[p]roposed final permits are 

enforceable at the time that the permits 

are issued.’’ 15 After further review of 

this issue and consideration of ADEQ’s 

comments and interpretation of its 

regulations, and in reliance on ADEQ’s 

stated interpretation of its regulations, 

we have determined that ‘‘proposed 

final permits’’ constitute final, binding, 

and enforceable NSR decisions by 

ADEQ that are issued before sources 

may begin construction and which are 

immediately subject to review. 

We therefore conclude that ADEQ’s 

NSR program provides, in all instances, 

for the issuance of a final NSR decision 

prior to sources being allowed to begin 

construction, thus this issue no longer 

provides a basis for our limited 

disapproval of the ADEQ NSR SIP 

submittal. Specifically, we agree that: 

(1) ADEQ’s NSR program provides 

ADEQ with clear authority to prevent 

construction or modification before it 

issues a final decision on the request for 

authority to construct as required by 40 

CFR 51.160(a) and (b); (2) ADEQ’s PSD 


asabaliauskas on DSK5VPTVN1PROD with RULES
Federal Register / Vol. 80, No. 211 / Monday, November 2, 2015 / Rules and Regulations 67327 

16The EPA’s proposal inadvertently referred to 

R18–2–334(G) instead of R18–2–334(E) when 

describing this issue. 

17See June 8, 2015 email ‘‘Clarification of ADEQ’s 

Comments on EPA’s Proposed Action’’ from Eric C. 

Massey, Air Quality Division Director at ADEQ to 

Lisa Beckham, Air Permits Office, EPA Region 9. 

and NA–NSR programs do not allow a 

source to begin construction prior to 

issuance of a final PSD or NA–NSR 

permit; and (3) ADEQ’s PSD program 

satisfies the CAA requirement for an 

opportunity for judicial review of PSD 

permit decisions. We are also including 

the clarifying memorandum from ADEQ 

dated February 10, 2015 as additional 

material in our final rule. 

However, we continue to recommend 

that ADEQ revise its regulations to 

clarify that a proposed final permit is a 

final, enforceable, and appealable NSR 

permit decision in order to minimize 

confusion among the public and the 

regulated community. We reiterate that 

such a revision is not a requirement for 

approval of ADEQ’s NSR program into 

the SIP. 

Comment 5: 

ADEQ disagrees with the EPA’s 

proposed limited disapproval of ADEQ’s 

program under 40 CFR 51.160(a)(2) and 

(b)(2) because rule R18–2–334 does not 

require ADEQ to evaluate whether the 

project under review will interfere with 

attainment or maintenance of the 

NAAQS in all cases, and instead allows 

sources to apply reasonably available 

control technology (RACT) in lieu of 

such an evaluation. ADEQ also takes 

issue with the EPA’s determination that 

R18–2–334(E) allows for too great of 

Director’s discretion when determining 

when to require a NAAQS analysis. 

ADEQ believes this objection is 

fundamentally at odds with the EPA’s 

own approach to air quality impact 

analysis (AQIA) in the Tribal Minor 

NSR Rule. The tribal rule initially 

imposes a case-by-case control 

technology requirement, but gives the 

‘‘reviewing authority’’ (which may be 

the EPA or a tribe with delegated 

authority) discretion to conduct an 

AQIA. 40 CFR 51.154(c) and (d). ADEQ 

also cites to the EPA’s response to 

comments for the Tribal Minor NSR 

Rule where the EPA indicated that 

reviewing authorities implementing the 

Tribal Minor NSR Rule should be 

allowed the discretion to determine 

when an AQIA might be needed from 

the applicant. See 76 FR 38761. Further, 

ADEQ argues that ADEQ’s rule is 

actually stricter and confers less 

discretion than the EPA’s Tribal Minor 

NSR Rule. ADEQ must consider the 

source’s emission rates, location of 

emission units within the facility and 

their proximity to ambient air, the 

terrain in which the source is or will be 

located, the source type, the location 

and emissions of nearby sources, and 

background concentration of regulated 

minor NSR pollutants. By comparison, 

the criteria in the EPA’s Tribal Minor 

NSR Rule states that if the reviewing 

authority has reason to be concerned 

that the construction of your minor 

source or modification would cause or 

contribute to a NAAQS or PSD 

violation, it may require the source to 

conduct and submit an AQIA. 

(emphasis added). ADEQ believes that 

this comparison demonstrates that 

ADEQ’s discretion is far from being ‘‘too 

great;’’ ADEQ’s discretion under R18–2– 

334(E) is minimal. 

Finally, ADEQ disagrees with the 

EPA’s determination that R18–2– 

334(C)(1)(a)–(b) ‘‘appears to allow 

sources with lower levels of emissions 

to avoid both substantive NAAQS 

review and RACT requirements’’ and 

that the state’s minor NSR Program 

therefore fails to ensure ‘‘that all sources 

subject to review under its NSR program 

will not interfere with attainment or 

maintenance of the NAAQS.’’ This 

objection is incorrect for two reasons. 

First, R18–2–334(C)(1)(a)–(c) represents 

ADEQ’s reasonable judgment that the 

imposition of RACT on units with low 

emissions (20 percent of the source 

threshold) within a source otherwise 

subject to RACT is not a cost-effective 

means of protecting the NAAQS. 

Second, this provision does not, as the 

EPA contends, allow sources to avoid 

substantive NAAQS review. This 

provision clearly applies solely to 

sources that elect to comply with minor 

NSR through installation of RACT. 

These sources remain subject to the 

obligation to conduct an AQIA on the 

Director’s request under R18–2–334(E), 

and there is nothing in the rule to 

suggest that emissions from units below 

the R18–2–334(C)(1)(a)–(b) thresholds 

would be excluded from the AQIA. 

SRP also disagrees with the EPA’s 

proposed disapproval based on the 

EPA’s finding that the Director’s 

discretion under R–18–2–334(E) was too 

great, and asserts that the EPA’s 

proposed action conflicts with the 

EPA’s policy on approving director 

discretion provisions. SRP argues that 

the Director’s discretion in this regard is 

sufficiently specific in identifying when 

it applies and what criteria are to be 

applied and that therefore the relevant 

provisions are fully approvable into the 

Arizona SIP. 

Response 5: 

Upon review of ADEQ’s comments, 

including clarifications regarding how 

the provisions of R18–2–334(E) apply, 

and in reliance on ADEQ’s stated 

interpretation of its regulations, we no 

longer find that ADEQ’s minor NSR 

program does not satisfy 40 CFR 

51.160(a)(2) and (b)(2) based on the 

view that rule R18–2–334 does not 

require ADEQ to evaluate whether all 

sources subject to review under that rule 

may interfere with attainment or 

maintenance of the NAAQS.16 After the 

close of the public comment period, 

ADEQ provided additional 

clarifications, stating that it interprets 

R18–2–334 to ‘‘require[] ADEQ to 

consider the air quality impacts of a 

project, using the criteria established in 

R18–2–334(E)(1) through (6), in each 

instance where the applicant has not 

submitted an AQIA under R18–2– 

334(C)(2).’’ 17 ADEQ has explained that 

it interprets R18–2–334 to require ADEQ 

to consider, for all sources subject to 

R18–2–334, whether there is reason to 

believe that the source could interfere 

with attainment or maintenance of the 

NAAQS. Some sources will comply 

with this requirement by submitting an 

AQIA under R18–2–334(C)(2). All other 

sources will be reviewed by ADEQ 

using the criteria in R18–2–334(E), and 

those criteria will be used to determine 

whether a more formal AQIA is 

necessary. That is, ADEQ does not have 

discretion to determine in which 

instances it will or won’t apply the 

criteria in R18–2–334(E)(1) through (6); 

instead, ADEQ interprets its regulations 

to require that ADEQ apply such criteria 

for all sources subject to R18–2–334 

where the applicant has not submitted 

an AQIA. Accordingly, this issue does 

not provide a basis for our final limited 

disapproval. 

We would also like to clarify that our 

proposed limited disapproval was not 

specifically related to ADEQ’s choice to 

apply RACT for some sources subject to 

R18–2–334 while allowing certain 

smaller sources subject to the rule to 

avoid RACT. Rather, our proposed 

disapproval action related only to what 

we understood to be the potential for 

sources subject to R18–2–334 to apply 

RACT (or to proceed without applying 

RACT for certain sources with lower 

emissions) in lieu of any review by 

ADEQ of the source’s potential impacts 

on the NAAQS under the ADEQ NSR 

program. As discussed immediately 

above, this is no longer a concern as 

ADEQ has explained that it must review 

all sources subject to R18–2–334 to 

consider whether the source could 

interfere with attainment or 

maintenance of the NAAQS. 

Given our revised determination on 

this issue, it is not necessary to address 

all the arguments made by SRP 

concerning this issue, but we note that 

we agree with SRP (and ADEQ) that the 


asabaliauskas on DSK5VPTVN1PROD with RULES
67328 Federal Register / Vol. 80, No. 211 / Monday, November 2, 2015 / Rules and Regulations 

18There is no existing SIP call under CAA section 

110(k)(5) that specifically pertains to the 

deficiencies with ADEQ’s NSR program. 

19See 80 FR at 14046–14047. 

20See October 29, 2012 ADEQ submittal at 4 and 

Table 2–1; see also ADEQ’s February 23, 2015 

supplemental submittal at 3–7. 

21We note that the EPA’s limited approval/

limited disapproval of ADEQ’s NSR SIP submission 

allows ADEQ to use its updated NSR rules, to the 

extent the EPA is granting limited approval in this 

action, to carry out the NSR program. Continuing 

to leave old and outdated Arizona NSR SIP 

elements in place would not be consistent with 

ADEQ’s SIP submission and request to the EPA, and 

would require ADEQ and permit applicants to 

implement and comply with two redundant and 

sometimes inconsistent sets of NSR rules. Whether 

ADEQ could withdraw its ADEQ NSR SIP submittal 

and what consequences would ensue is not 

relevant; ADEQ has not done so. 

22The commenter asserts that when the EPA 

disapproved elements of the Texas Commission of 

Environmental Quality’s (TCEQ’s) major NSR rule, 

the EPA found that the provisions in the submittals 

were not submitted to meet a mandatory 

requirement of the Act and thus noted that its final 

action to disapprove the State submittals did not 

trigger a sanction or FIP clock. The TCEQ example 

is inapposite, however, because our action on the 

ADEQ NSR SIP submittal approves rules with 

identified deficiencies into the SIP where the action 

in Region 6 did not. The EPA found the deficiencies 

in the TCEQ submission to be separable and issued 

partial disapprovals for them, resulting in a SIP that 

did not contain the deficiencies. In that situation, 

criteria ADEQ will be applying when 

making its determination under R18–2– 

334(E) do not afford undue discretion to 

the Director. 

Comment 6: 

One commenter takes issue with the 

EPA’s statements that finalizing its 

proposed limited disapproval would 

trigger an obligation for the EPA to 

promulgate a Federal Implementation 

Plan (FIP) and impose CAA sanctions if 

ADEQ does not correct the alleged 

deficiencies within 18 to 24 months. 

The commenter asserts that this 

contradicts the statutory limitations on 

the EPA’s SIP-action authority under the 

CAA. 

Section 110(c)(1) provides the EPA 

the authority to promulgate a FIP in 

only two circumstances: (1) The State 

failed to make a required SIP 

submission, or (2) the Administrator 

disapproves a SIP submission in whole 

or part. Section 179(a) contains similar 

conditions for imposing sanctions in 

nonattainment areas. The commenter 

claims that the EPA interprets its 

authority to impose a FIP or sanctions 

only when the disapproval relates to a 

mandatory SIP submission. In support 

of this assertion, the commenter cites to 

one action from Region 6 of the EPA 

that disapproved elements of the Texas 

Commission of Environmental Quality’s 

(TCEQ’s) major NSR rule to address the 

2002 NSR changes (‘‘[t]he provisions in 

these submittals . . . were not 

submitted to meet a mandatory 

requirement of the Act. Therefore, this 

final action to disapprove . . . the State 

submittals does not trigger a sanction or 

Federal Implementation Plan clock.’’). 

The commenter concludes that such an 

interpretations of Section 110(c)(1) and 

Section 179(a) are reasonable because 

the EPA would otherwise, for example, 

be required to promulgate a FIP for 

disapproving a State’s request to include 

odor provisions in its SIP that are 

unrelated to NAAQS compliance. 

The commenter further states that 

ADEQ’s current SIP contains fullyapproved, minor NSR and major NSR 

permitting programs. As such, the 

State’s requested SIP revisions 

addressed in the EPA’s proposed action 

are not mandatory. The commenter 

further argues that the EPA referenced 

no information suggesting that it made 

a formal call for plan revision as 

required by Section 110(k)(5) of the 

CAA related to its proposed limited 

disapproval of ADEQ’s NSR SIP 

submittal. As such, in general, Arizona 

is not under a mandatory duty to revise 

its existing SIP with regards to its NSR 

programs. The commenter argues that it 

is inappropriate for the EPA to replace 

a fully approved-SIP with a program 

that it alleges does not fully satisfy CAA 

requirements by using an approach that 

triggers the FIP clock and potentially 

imposes sanctions. ADEQ could 

withdraw the requested SIP submission 

and face no threat of a FIP or sanctions. 

Response 6: 

The EPA disagrees with the 

commenter’s statement that the EPA’s 

limited disapproval in this action does 

not trigger a FIP clock or potential 

sanctions, and disagrees that the EPA’s 

action is inappropriate in light of this 

result. 

The EPA continues to believe that 

limited disapproval of ADEQ’s NSR SIP 

submittal triggers an obligation to 

promulgate a FIP unless ADEQ corrects 

the identified deficiencies and the EPA 

approves the related SIP revisions 

within 2 years, and that sanctions 

would be triggered by the EPA’s limited 

disapproval of ADEQ’s NA–NSR 

program revisions based on deficiencies 

related to CAA title I, Part D 

requirements for nonattainment areas if 

ADEQ fails to remedy the identified 

deficiencies so that the EPA can 

approve the revisions into the SIP before 

the sanctions apply. As stated in the 

notice for our proposal, we intend to 

work with ADEQ to remedy these 

deficiencies in a timely manner. 

Importantly, we note that the EPA’s 

other option would have been a full 

disapproval of ADEQ’s NSR SIP 

submittal, which would have required 

ADEQ to continue to implement the 

outdated rules in its SIP while also 

implementing its newer rules under 

State law. This would require ADEQ 

and permit applicants to continue to 

implement and comply with two 

redundant and sometimes inconsistent 

sets of NSR rules, contrary to ADEQ’s 

request to update its SIP to incorporate 

its newer rules and remove its older, 

outdated rules. 

Pursuant to section 110(c)(1) of the 

CAA, the EPA must promulgate a FIP 

within two years after our final limited 

disapproval of ADEQ’s NSR SIP 

submittal, unless ADEQ adequately 

corrects the identified deficiencies and 

the EPA approves the corrected program 

into the Arizona SIP before that time. 

The commenter argues that the FIP 

clock applies only when a disapproval 

relates to a mandatory SIP submission, 

and asserts that the submitted revisions 

are not mandatory because ADEQ’s 

existing SIP contains fully-approved 

minor and major NSR programs, and the 

revisions were not developed in 

response to a SIP call under CAA 

section 110(k)(5). The EPA disagrees 

with the commenter’s argument. 

Even if the EPA has not issued a SIP 

call under CAA section 110(k)(5),18 a 

FIP is generally required under CAA 

section 110(c)(1) when the EPA 

disapproves a plan submission, unless 

the State adequately corrects the basis 

for the disapproval and the EPA 

approves a corrected SIP submittal in a 

timely manner, or the EPA determines 

that an existing plan is in place that 

meets the relevant CAA requirements. 

See AIR v. EPA, 686 F.3d 668, 675–76 

(9th Cir. 2012). We note that NSR 

programs consistent with CAA 

requirements are required elements of a 

SIP. CAA §§ 110(a)(2)(C), 161, 165, 

172(c)(5), 173; 40 CFR 51.160–51.166. 

In this case, the EPA cannot rely on 

provisions in the existing Arizona SIP to 

adequately address the deficiencies with 

the ADEQ NSR SIP submittal that we 

identified in our proposed rule and 

which form the basis for our final 

limited disapproval. ADEQ must 

address these deficiencies in a timely 

manner in order to avoid the 

requirement for the EPA to promulgate 

a FIP. As we made clear in the notice 

for our proposed action,19 ADEQ’s NSR 

SIP submittal included the removal of 

most of ADEQ’s existing NSR program 

elements from the Arizona SIP.20 Upon 

our final action,21 there will not be an 

‘‘existing plan’’ that could potentially 

satisfy the specific CAA NSR 

requirements that the EPA has 

determined are not satisfied in ADEQ’s 

NSR SIP submittal.22 In general, the 


asabaliauskas on DSK5VPTVN1PROD with RULES
Federal Register / Vol. 80, No. 211 / Monday, November 2, 2015 / Rules and Regulations 67329 

whether the deficiencies that were disapproved 

were contained in ‘‘mandatory’’ SIP submissions 

was relevant because if they were ‘‘mandatory’’ 

then disapproval likely would have resulted in 

TCEQ needing to submit another plan revision to 

replace the disapproved plan elements. But because 

the deficiencies were found to be separable and 

contained in plan elements that were not 

mandatory, the EPA issued a partial disapproval of 

those elements, keeping the deficiencies out of the 

approved SIP and with TCEQ under no obligation 

to submit another SIP revision because the 

disapproved plan elements were not ‘‘mandatory.’’ 

In contrast, the provisions including the identified 

deficiencies in the ADEQ NSR SIP submittal are 

integrated parts of the submittal and are being 

approved into the SIP as part of our limited 

approval/limited disapproval action, so whether the 

ADEQ plan revisions containing the deficiencies are 

‘‘mandatory’’ is not relevant and is not a basis to 

avoid a FIP duty or sanctions. 

23ADEQ noted in its submittal that its existing 

SIP-approved program did not include the PM10

increments, the NO2 increments, or updates related 

to the ‘‘WEPCO’’ rule for determining when a 

project is a modification at an electric generating 

unit. In addition, ADEQ stated that a basis for its 

revisions to its minor NSR program was to correct 

the deficiency that its program lacked explicit 

procedures designed ‘‘to assure that national 

ambient air quality standards are achieved,’’ as 

required by section 110(a)(2)(C) of the Act. See 

Appendix A of ADEQ’s October 29, 2012 SIP 

submittal at 1546 and 1547. 

24 In addition, ADEQ’s NSR SIP submittal did not 

address the regulation of greenhouse gases (GHGs) 

under the PSD program. As discussed in the notice 

for our proposed action on ADEQ’s NSR SIP 

submittal, a FIP is currently in place in Arizona to 

address PSD requirements for GHGs. See 80 FR at 

14054 n.17. 

EPA’s role in reviewing SIP submittals, 

including the ADEQ NSR SIP submittal, 

is to defer to the State’s choices as to 

how to implement CAA requirements 

provided those choices are consistent 

with the pertinent CAA requirements, 

whether or not a program submittal is 

considered ‘‘mandatory.’’ The EPA’s 

limited approval/limited disapproval 

action on ADEQ’s NSR SIP submittal, 

including ADEQ’s request to remove old 

and largely outdated NSR provisions 

from the Arizona SIP, allows us to 

approve into the SIP the State’s choice 

to adopt and implement its updated and 

strengthened NSR program while giving 

ADEQ time to remedy certain 

deficiencies that cause us not to grant 

full approval of the submittal. 

Furthermore, even if one assumed 

arguendo that these older Arizona NSR 

provisions were not being removed from 

the Arizona SIP, the commenter has not 

explained how the old NSR provisions 

would, in fact, meet the NSR 

requirements for which the EPA has 

found specific deficiencies in ADEQ’s 

updated NSR program.23

Similarly, for deficiencies related to 

CAA title I, Part D requirements for 

nonattainment areas, final limited 

disapproval of ADEQ’s NSR SIP 

submission will result in the application 

of sanctions under CAA section 179 

unless the deficiencies have been 

adequately corrected before the 

sanctions apply. 

As with its arguments concerning the 

FIP clock, the commenter argues that 

CAA sanctions apply only when a 

disapproval relates to a mandatory SIP 

submission, and asserts that the 

submitted revisions are not mandatory 

because ADEQ’s existing SIP contains 

fully-approved NSR permitting 

programs, and the revisions were not 

developed in response to a SIP call 

under CAA section 110(k)(5). The EPA 

again disagrees with the commenter’s 

argument. 

Even if the EPA has not issued a SIP 

call under CAA section 110(k)(5), 

sanctions generally will apply under 

CAA section 179 when the EPA 

disapproves a plan submission based on 

plan deficiencies that relate to title I, 

Part D requirements, unless ADEQ 

adequately corrects those deficiencies 

and the EPA takes action to approve a 

corrected plan submittal before the 

sanctions apply, or the EPA determines 

that the existing plan meets the 

applicable Part D requirements. See 40 

CFR 52.31. A NA–NSR program that 

meets CAA requirements is a required 

element of a SIP. CAA §§ 110(a)(2)(C), 

172(c)(5), 173; 40 CFR 51.165. 

As discussed above, ADEQ’s NSR SIP 

submittal included the removal of most 

of ADEQ’s existing NSR program 

elements from the Arizona SIP, so upon 

the EPA’s final action there will not be 

older NA–NSR SIP provisions that 

could potentially meet the CAA NA– 

NSR requirements that the EPA has 

determined are not satisfied in the NA– 

NSR program in ADEQ’s NSR SIP 

submittal. The EPA’s limited approval/ 

limited disapproval action on ADEQ’s 

NSR SIP submittal, including ADEQ’s 

request to remove old and largely 

outdated NSR provisions from the 

Arizona SIP, allows us to approve into 

the SIP the State’s choice to adopt and 

implement its updated and strengthened 

NA–NSR program while giving ADEQ 

time to remedy certain deficiencies that 

cause us not to grant full approval of the 

submittal. Furthermore, even if one 

assumed arguendo that these older 

Arizona NA–NSR provisions were not 

being removed from the Arizona SIP per 

ADEQ’s request, the commenter has not 

explained how the old NA–NSR 

provisions would, in fact, meet the 

specific NA–NSR requirements for 

which the EPA has found deficiencies 

with ADEQ’s updated NA–NSR 

program. For example, ADEQ’s old SIPapproved program did not include NOX

as a precursor to ozone. 

We note that the EPA is also finalizing 

a partial disapproval—rather than 

limited approval/limited disapproval— 

for a separable ADEQ NSR program 

provision that is analogous to a previous 

federal NSR provision that a federal 

Court determined is not a permissible 

component of PSD programs—the PM2.5

significant monitoring concentration 

(SMC). As there is no deficiency related 

to this issue in the approved plan 

following our partial disapproval, 

neither a FIP requirement nor sanctions 

will result from this partial disapproval 

action. 

The EPA’s limited disapproval action 

is based on program elements in 

ADEQ’s NSR SIP submittal that do not 

meet CAA requirements and are not 

satisfied by the existing Arizona SIP 

provisions that remain in place 

following our final action.24 We wish to 

clarify that all of the bases for our final 

limited disapproval action on the ADEQ 

NSR SIP submittal must be adequately 

addressed in a timely manner in order 

to avoid a requirement for a FIP or, for 

Part D deficiencies, the application of 

sanctions. 

Finally, our final limited disapproval 

also addresses some SIP elements or 

provisions that are not required (e.g., 

deficiencies concerning optional PAL 

provisions), but were not separable from 

ADEQ’s NSR SIP submittal as they were 

an integrated part of that submittal. 

Because we are approving these 

provisions into the SIP, the EPA will be 

obligated to implement a FIP and/or 

sanctions will apply (as applicable) for 

such optional program elements that 

remain in the SIP if the deficiencies in 

those elements are not corrected to 

ensure consistency with CAA 

requirements. 

Comment 7: 

SRP states that to proceed using the 

limited approval, limited disapproval 

mechanism, The EPA must make an onthe-record determination that the 

disapproved elements are not severable 

from the approved elements. The EPA 

has not made this finding or provided 

this explanation in its proposed notice. 

Response 7: 

The EPA disagrees with this 

comment. The commenter cites no 

authority for this unsupported 

proposition. Under CAA sections 

110(k)(3) and 301(a) and the EPA’s longstanding guidance, limited approval and 

partial approval are alternatives to full 

approval or full disapproval of a 

complete plan submission. Limited 

approval may be appropriate where a 

plan submittal contains some provisions 

that meet applicable CAA requirements 

and other provisions that do not, and 

the provisions are not separable. Partial 

approval may be used where a separable 


asabaliauskas on DSK5VPTVN1PROD with RULES
67330 Federal Register / Vol. 80, No. 211 / Monday, November 2, 2015 / Rules and Regulations 

25See, e.g., The EPA’s approval of Georgia’s PSD 

program, Georgia’s PSD program at 391–3–1; and 

the EPA’s approval of South Carolina’s regulation 

at Chapter 7 Regulation 62.5. 

portion of a plan submittal meets all 

applicable CAA requirements. The EPA 

has discretion under the CAA to choose 

an appropriate approval or disapproval 

mechanism for a plan submission, and 

there is no required ‘‘finding’’ that the 

provisions are not separable for a 

proposed or final limited approval or 

limited disapproval SIP action. See 

Processing of State Implementation Plan 

(SIP) Revisions, EPA Memorandum 

from John Calcagni, Director, Air 

Quality Management Division, OAQPS, 

to Air Division Directors, EPA Regional 

Offices I–X, September 7, 1992 

(www.epa.gov/ttn/caaa/t1/memoranda/

siproc.pdf). 

Nevertheless, in general, we believe 

that, with the exception of the partial 

disapproval of the PM2.5 SMC that we 

are finalizing, the components of 

ADEQ’s NSR SIP submittal are 

interrelated and not separable from the 

submittal as a whole and therefore not 

appropriate for partial disapproval. 

ADEQ has not provided us with any 

basis to conclude that particular aspects 

of its NSR SIP submittal for which we 

proposed limited disapproval are not 

integral or interrelated parts of the 

submittal or are otherwise separable and 

appropriate for partial disapproval. 

Further, the commenter has not 

demonstrated that any portion of the 

ADEQ NSR SIP submittal for which we 

proposed limited disapproval is, in fact, 

separable and appropriate for partial 

disapproval rather than limited 

disapproval. 

Comment 8: 

One commenter states that the EPA’s 

assertion that ADEQ may not exclude 

certain pollutant-emitting activities 

from PSD misinterprets the EPA’s 

regulations. The commenter points to 40 

CFR 51.160(e) and states that a State 

may exclude activities that it anticipates 

will have negligible or insignificant 

environmental impacts from either the 

major or minor NSR permit programs. 

This regulatory approach makes sense 

because it allows for a practical 

integration of the multiple 

preconstruction requirements. There is 

no basis for requiring a State to regulate 

activities with the more stringent 

requirements contained in the PSD or 

NA NSR program when those activities 

fall below the levels of concern 

established for the minor NSR program. 

Response 8: 

The regulations governing PSD and 

NA–NSR SIP programs contain the 

fundamental requirement that such 

programs adopt a specified definition 

for ‘‘stationary source.’’ 40 CFR 

51.165(a)(1)(i), 51.166(b)(5). The 

regulations require the use of the 

prescribed definition, and state that 

deviations from the specified wording 

will be approved only if ‘‘the State 

specifically demonstrates that the 

submitted definition is ‘‘more stringent, 

or at least as stringent, in all respects’’ 

as the prescribed definition. 40 CFR 

51.165(a)(1), 51.166(b). As explained in 

reference to the NA–NSR program in 

our March 18, 2015 proposal: 

ADEQ must demonstrate that its 

definition of stationary source is at least 

as stringent as the federal definition at 

51.165(a)(1)(i) in all respects. 

See 80 FR at 14056; see also 80 FR at 

14054 for the PSD program. The 

commenter has not addressed how 

ADEQ’s definition would be at least as 

stringent as the definitions in 

51.165(a)(1)(i) and 51.166(b)(5) in light 

of the exemption language referenced in 

our proposal, see 80 FR at 14054, nor 

has ADEQ provided the necessary 

demonstration that its definition of 

stationary source is at least as stringent 

as the definition of ‘‘stationary source’’ 

under the federal PSD and NA–NSR 

programs. Indeed, ADEQ’s comments 

did not address this basis of our 

proposed limited disapproval. We 

continue to find that this issue provides 

a basis for limited disapproval of 

ADEQ’s NSR SIP submittal. 

We do not interpret 40 CFR 51.160(e) 

as allowing states to develop less 

stringent definitions for these programs 

without the necessary demonstration 

that the submitted definition is ‘‘more 

stringent, or at least as stringent, in all 

respects’’ as the prescribed definition as 

required by 40 CFR 51.165(a)(1) and 

51.166(b). Section 51.160(e) does not 

contain any language giving states the 

discretion to exclude any type of source 

from the more specific major source 

permitting requirements in section 

51.165 and 51.166. Section 51.160(e) 

does not say anything about sources that 

have ‘‘negligible or insignificant 

environmental impacts.’’ This section 

simply requires that a state plan identify 

the types and sizes of stationary sources 

that are covered by the ‘‘legally 

enforceable procedures’’ required under 

section 51.160(a) to review construction 

or modification of stationary sources. 

Sections 51.165 and 51.166 provide 

more detailed procedures that must 

apply to major stationary sources. These 

more specific provisions in sections 

51.165 and 51.166 make clear that those 

procedures must cover the type and size 

of source covered by the definitions at 

40 CFR 51.165(a)(1)(i) and 51.166(b)(5). 

Comment 9: 

One commenter takes issue with our 

proposed limited disapproval of ADEQ’s 

definition of projected actual emissions 

on the basis that it does not specifically 

require malfunction emissions to be 

included in the post-change projection. 

The EPA has not shown how ADEQ’s 

exclusion of this term from ADEQ’s 

definition makes the definition less 

stringent than the Federal rules. 

Malfunctions, by definition, are 

emissions associated with an 

unpredictable and not reasonably 

preventable event. In this respect, it is 

axiomatic that a source cannot 

reasonably project emissions that it 

cannot predict. By excluding 

malfunctions from its projected actual 

emissions procedure, ADEQ recognizes 

the EPA’s own interpretation of 

‘‘malfunctions’’ and is no less stringent 

than the federal definition. The EPA’s 

proposed action also is inconsistent 

with other Regional Office SIP 

approvals that have approved 

definitions of ‘‘projected actual 

emissions’’ that do not require inclusion 

of malfunction emissions.25 Moreover, 

the comparable paragraph in the Federal 

definition of ‘‘projected actual 

emissions’’ merely clarifies that 

projected actual emissions includes all 

post-change emissions. The EPA could 

approve ADEQ’s ‘‘projected actual 

emissions’’ definition by severing and 

not acting on paragraph R18–2– 

401(20)(b)(iii) and the definition would 

not lose its intended meaning. 

Response 9: 

The commenter asserts that the EPA 

has not shown that ADEQ’s exclusion of 

malfunction emissions from the 

definition of ‘‘projected actual 

emissions’’ makes the definition less 

stringent. However, ADEQ has the 

burden of demonstrating that its 

alternative definitions are not less 

stringent than the ones in the EPA’s 

regulation. See 40 CFR 51.165(a)(1), 

51.166(b). ADEQ’s definitions under the 

PSD and NA–NSR programs warrant a 

limited disapproval because the EPA 

cannot reasonably conclude that 

ADEQ’s definition is at least as stringent 

as the definitions in 40 CFR 51.165(a)(1) 

and/or 51.166(b). We note that ADEQ’s 

definition for ‘‘baseline actual 

emissions’’ specifically includes startup, 

shutdown, and malfunction emissions, 

while ADEQ’s definition for ‘‘projected 

actual emissions’’ includes startup and 

shutdown emissions but does not 

include malfunction emissions. Further, 

ADEQ’s definition of ‘‘projected actual 

emissions’’ specifically excludes 

malfunction emissions associated with a 

shutdown. Based on the exclusion of 

malfunction emissions from the 


asabaliauskas on DSK5VPTVN1PROD with RULES
Federal Register / Vol. 80, No. 211 / Monday, November 2, 2015 / Rules and Regulations 67331 

definition of ‘‘projected actual 

emissions’’, and in the absence of a 

response from ADEQ on this issue, we 

conclude that ADEQ has not shown that 

its definition is as stringent as the 

federal definition. In addition, without 

a clearer statement from ADEQ, we 

cannot determine that R18–2– 

401(20)(b)(iii) is separable from the rest 

of the ADEQ definition of projected 

actual emissions without losing the 

apparently intended meaning by ADEQ 

to specifically include startup and 

shutdown but exclude malfunction 

emissions. We note that ADEQ’s 

comments did not address this basis for 

our proposed limited disapproval. 

With respect to the claim that the EPA 

has previously approved PSD or NA– 

NSR programs that do not include 

malfunctions emissions under the 

definition for projected actual 

emissions, we note that the examples 

provided by the commenter are not 

completely analogous. In those 

programs, the definition of baseline 

actual emissions also excluded 

malfunction emissions, whereas ADEQ 

has included those emissions in its 

definition of baseline actual emissions. 

Without further justification from 

ADEQ, this inconsistency across 

definitions makes it difficult for the EPA 

to determine the relative stringency of 

ADEQ’s definitions as compared with 

those in 40 CFR 51.165 and 51.166. The 

commenter has not provided any 

information about the nature of the 

demonstrations that was supplied by the 

states that obtained the EPA approval 

for excluding malfunction emissions 

from both the definition of baseline 

actual emissions and projected actual 

emissions. 

Notwithstanding prior action by the 

EPA in the context of SIPs in the 

distinct circumstances noted above, the 

EPA believes the proper interpretation 

of these definitions is that they require 

that all emissions, pre- and post-change, 

including malfunctions, be included in 

the definitions included in SIPs, 

consistent with the regulatory text, 

absent a demonstration that the State’s 

regulation is at least as stringent as the 

federal definition as required by 40 CFR 

51.165(a)(1) and 51.166(b). 

We note that in reviewing this 

comment, we also reviewed our 

proposed limited disapproval related to 

the calculation of baseline actual 

emissions under ADEQ’s PALs program 

at R18–2–412(B)(2). See 80 FR 14053. 

Upon review, we determined that our 

proposed limited disapproval related to 

the calculation of baseline actual 

emissions under ADEQ’s PALs program 

at R18–2–412(B)(2) was in error because 

ADEQ’s definition for baseline actual 

emissions at R18–2–401(2)(i) 

specifically includes startup, shutdown, 

and malfunction emissions. Therefore, 

this issue no longer provides a basis for 

our limited disapproval of ADEQ’s NSR 

SIP submittal. 

Comment 10: 

One commenter asserts that ADEQ’s 

definition of regulated NSR pollutant is 

not deficient for not including the final 

two sentences in 40 CFR 

51.166(b)(49)(i)(a). This language 

addresses issuance of permits before 

January 1, 2011. Since this SIP revision 

applies to changes after this date, it is 

not necessary for the definition to 

address circumstances that existed 

before SIP approval. Moreover, absence 

of the language, in any case, does not 

affect the stringency of the definition. 

Response 10: 

We agree with the commenter that 

while ADEQ may want to add to its 

definition these two sentences that 

provide additional clarification, this 

clarifying language is not necessary for 

SIP approval. As such, we no longer 

find this difference to be a deficiency 

with ADEQ’s NSR program, and this 

issue is not a basis for our final limited 

disapproval. 

Comment 11: 

The EPA proposes to disapprove 

ADEQ’s major NSR programs because 

the SIP submittal does not include a 

definition for ‘‘subject to regulation.’’ 

Although the Federal regulations 

contain a definition for ‘‘subject to 

regulation,’’ the EPA made clear, at the 

time it adopted this definition, that 

states may adopt (or already have) 

alternative pathways for defining 

applicability of the major NSR 

program—the EPA did not intend for 

codification of ‘‘subject to regulation’’ to 

be a necessary element for SIP approval. 

See 75 FR 31514 at 31525. The EPA 

chose the ‘‘subject to regulation’’ 

pathway because it determined that this 

would allow other states to adopt the 

EPA’s definition through interpretation 

without the need for a SIP revision. 

ADEQ’s major source definition refers 

to NSR regulated pollutants. ADEQ’s 

definition of NSR regulated pollutant 

covers all pollutants ADEQ is currently 

required to regulate under its major NSR 

programs. ADEQ’s program is not 

currently deficient for failing to include 

some unknown air pollutant that the 

EPA may regulate in the future. Should 

the EPA regulate such an air pollutant 

in the future, the EPA may follow the 

pathway it used for GHGs and issue a 

SIP call at that time. Similarly, ADEQ’s 

definition of regulated NSR pollutant is 

not currently deficient for failing to 

include some unidentified air pollutant 

that the EPA might name in the future. 

Response 11: 

After further review and 

consideration of the comment, we are 

not including the absence of a definition 

of the term ‘‘subject to regulation’’ as a 

basis for our limited disapproval of the 

ADEQ NSR SIP submittal. Similarly, we 

are also not including the omission in 

ADEQ’s PSD rules of language 

analogous to that in 40 CFR 

51.166(b)(49)(iv) as a basis for our final 

limited disapproval of the ADEQ NSR 

SIP submittal. We note, however, that 

contrary to commenters’ assertion, the 

ADEQ SIP is deficient because ADEQ’s 

definition of regulated NSR pollutant 

does not cover all pollutants ADEQ is 

currently required to regulate under its 

major NSR programs, in that ADEQ’s 

program does not regulate GHGs. 

However, the EPA has separately taken 

action to address this deficiency. The 

EPA previously established a FIP for 

GHGs for Arizona because ADEQ could 

not apply its PSD program to GHGs due 

to a State law prohibition. 

Comment 12: 

One commenter states that we must 

approve ADEQ’s definition of basic 

design parameter because the D.C. 

Circuit made no finding in State of New 

York v. EPA that the use of the ‘‘basic 

design parameter’’ definition was 

‘‘impermissible.’’ This issue was not 

before the court in State of New York v. 

EPA. At the time the EPA codified the 

replacement unit provisions, the EPA 

relied on a previously codified 

definition of ‘‘basic design parameter’’ 

to explain how it will interpret the 

phrase ‘‘basic design parameters’’ in 

implementing the replacement unit 

provisions. The vacatur of the ‘‘basic 

design parameters’’ definition for 

purposes of a separate, unrelated 

rulemaking has no effect on the EPA’s 

stated interpretation of that phrase for 

purposes of the replacement unit 

provisions. Accordingly, the EPA’s 

statements in the preamble remain its 

interpretation for purposes of 

implementing those provisions. ADEQ’s 

definition is fully consistent with the 

EPA’s interpretation. 

Response 12: 

The EPA agrees with the commenter 

that our proposed partial disapproval of 

the definition for ‘‘basic design 

parameter’’ was erroneous. We note that 

ADEQ did not adopt any of the other 

provisions of the Equipment 

Replacement Provisions, which were 

the subject of the D.C. Circuit Court’s 

decision in State of New York v. EPA. 

We agree with the commenter that 

ADEQ’s adoption of a definition for 

basic design parameter is acceptable in 

this case, and consistent with the EPA’s 

past statements related to this term. 


asabaliauskas on DSK5VPTVN1PROD with RULES
67332 Federal Register / Vol. 80, No. 211 / Monday, November 2, 2015 / Rules and Regulations 

26The EPA’s partial disapproval concerning the 

PM2.5 SMC does not require follow-up action by 

ADEQ. However, for clarity, ADEQ may wish to 

remove this disapproved provision from its 

regulations. 

27This excludes the PM2.5 SMC provision for 

which we issuing a partial disapproval, as 

discussed elsewhere in this action. 

28 ‘‘List of Bases for Final Limited Disapproval of 

ADEQ NSR SIP Submittal,’’ Lisa Beckham, Air 

Permits Office, EPA Region 9, June 22, 2015. 

29 In addition, ADEQ must also address our 

limited approval under section 189 of the Act 

related to PM10 and PM2.5 precursors for the Nogales 

and West Central Pinal PM2.5 nonattainment areas 

and the West Pinal PM10 nonattainment area. 

However, because this issue is not a basis for our 

limited disapproval action, it does not trigger a FIP 

clock or the potential for sanctions. 

Therefore, we are not finalizing a partial 

disapproval of ADEQ’s definition for 

basic design parameter. Our final action 

includes this definition as part of 

ADEQ’s NSR SIP submittal for which 

the EPA is finalizing a limited approval/ 

limited disapproval, but it is not a basis 

for our limited disapproval. 

III. Final Action 

Pursuant to section 110(k) of the CAA, 

the EPA is finalizing a limited approval 

and limited disapproval of the ADEQ 

rules listed in Table 1 above. We are 

also approving into the Arizona SIP the 

Arizona statutory provision relating to 

local delegation of state authority 

identified in Table 1 above. In addition, 

we are removing from the Arizona SIP 

certain rules and appendices, which are 

outdated and mostly being superseded 

by this action. See Table 2 above. We 

are also finalizing a partial disapproval 

of one provision of ADEQ’s NSR SIP 

submittal concerning the PM2.5 SMC, as 

the analogous federal regulatory 

provision has been vacated by a federal 

Court.26 Last, we are finalizing a limited 

approval (but not a limited disapproval) 

based on requirements under section 

189 of the Act related to PM10 and PM2.5

precursors for ADEQ’s nonattainment 

NSR program for the Nogales and West 

Central Pinal PM2.5 nonattainment areas 

and the West Pinal PM10 nonattainment 

area. 

Our limited approval and limited 

disapproval action will approve the 

updated rules included in the ADEQ 

NSR SIP submittal into the ADEQ 

portion of the Arizona SIP.27 However, 

ADEQ must correct certain deficiencies 

in the approved rules in order to obtain 

full approval for its NSR SIP submittal. 

Our TSD and proposal for this action 

described in detail the deficiencies we 

identified with ADEQ’s NSR SIP 

submittal which we determined were 

bases for limited approval and limited 

disapproval. With the exception of the 

changes we are making from our 

proposal as described in section II.B of 

this preamble, we are finalizing our 

action as proposed. For some of these 

disapproval issues, no adverse comment 

was received during the public 

comment period on our proposed 

action; where comments were received 

on these issues, we addressed the 

comments in our Response to 

Comments document. See section C of 

this preamble. A list summarizing the 

bases for our limited disapproval is 

included in a memorandum to the file 

for this action.28

Our limited disapproval action will 

trigger an obligation on the EPA to 

promulgate a FIP unless Arizona 

corrects the deficiencies that are the 

bases for the limited disapproval, and 

the EPA approves the related plan 

revisions, within two years of the final 

action. Additionally, for those 

deficiencies that are bases for our 

limited disapproval that relate to NA– 

NSR requirements under part D of title 

I of the Act, the offset sanction in CAA 

section 179(b)(2) would apply in the 

nonattainment areas under ADEQ’s 

jurisdiction 18 months after the effective 

date of a final limited disapproval, and 

the highway funding sanctions in CAA 

section 179(b)(1) would apply in these 

areas six months after the offset sanction 

is imposed. Neither sanction will be 

imposed under the CAA if Arizona 

submits, and we approve, prior to the 

implementation of the sanctions, SIP 

revisions that correct the deficiencies 

that we identify in our final action.29

We intend to work with ADEQ to 

correct the deficiencies identified in this 

action in a timely manner. 

IV. Incorporation by Reference 

In this rule, the EPA is finalizing 

regulatory text that includes 

incorporation by reference. In 

accordance with requirements of 1 CFR 

51.5, the EPA is finalizing the 

incorporation by reference of the ADEQ 

rules and the statutory provision 

described in the amendments to 40 CFR 

part 52 set forth below. The EPA has 

made, and will continue to make, these 

documents available electronically 

through www.regulations.gov and in 

hard copy at the appropriate EPA office 

(see the ADDRESSES section of this 

preamble for more information). 

V. Statutory and Executive Order 

Reviews 

A. Executive Order 12866, Regulatory 

Planning and Review and Executive 

Order 13563, Improving Regulation and 

Regulatory Review 

This action is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order 12866 (58 FR 51735, 

October 4, 1993) and is therefore not 

subject to review under Executive 

Orders 12866 and 13563 (76 FR 3821, 

January 21, 2011). 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

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

defined at 5 CFR 1320.3(b). 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to conduct 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements unless the 

agency certifies that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

Small entities include small businesses, 

small not-for-profit enterprises, and 

small governmental jurisdictions. 

This rule will not have a significant 

impact on a substantial number of small 

entities because SIP approvals or 

disapprovals under section 110 and 

subchapter I, part D of the Clean Air Act 

do not create any new requirements but 

simply approve or disapprove 

requirements that the State is imposing. 

Therefore, because this action does not 

create any new requirements, I certify 

that this action will not have a 

significant economic impact on a 

substantial number of small entities. 

Moreover, due to the nature of the 

Federal-State relationship under the 

Clean Air Act, preparation of flexibility 

analysis would constitute Federal 

inquiry into the economic 

reasonableness of State action. The 

Clean Air Act forbids the EPA to base 

its actions concerning SIPs on such 

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

EPA, 427 U.S. 246, 255–66 (1976); 42 

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

D. Unfunded Mandates Reform Act 

The EPA has determined that this 

action does not include a Federal 

mandate that may result in estimated 

costs of $100 million or more to either 

State, local, or tribal governments in the 

aggregate, or to the private sector. This 

Federal action approves or disapproves 

pre-existing requirements under State or 

local law, and imposes no new 

requirements. 

E. Executive Order 13132, Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states, or in the 

distribution of power and 


asabaliauskas on DSK5VPTVN1PROD with RULES
Federal Register / Vol. 80, No. 211 / Monday, November 2, 2015 / Rules and Regulations 67333 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. 

F. Executive Order 13175, Coordination 

With Indian Tribal Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), requires the 

EPA to develop an accountable process 

to ensure ‘‘meaningful and timely input 

by tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ This final rule does not 

have tribal implications, as specified in 

Executive Order 13175. It will not have 

substantial direct effects on tribal 

governments, on the relationship 

between the Federal government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal government and Indian tribes. 

The SIP is not approved to apply on any 

Indian reservation land or in any other 

area where the EPA or an Indian tribe 

has demonstrated that a tribe has 

jurisdiction. In those areas of Indian 

country, the rule does not have tribal 

implications and will not impose 

substantial direct costs on tribal 

governments or preempt tribal law as 

specified by Executive Order 13175. 

Thus, Executive Order 13175 does not 

apply to this rule. 

G. Executive Order 13045, Protection of 

Children From Environmental Health 

Risks and Safety Risks 

The EPA interprets Executive Order 

13045 (62 FR 19885, April 23, 1997) as 

applying only to those regulatory 

actions that concern health or safety 

risks, such that the analysis required 

under section 5–501 of the Executive 

Order has the potential to influence the 

regulation. This rule is not subject to 

Executive Order 13045, because it 

approves or disapproves State rules 

intended to implement a Federal 

standard. 

H. Executive Order 13211, Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not subject to Executive 

Order 13211, ‘‘Actions Concerning 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use’’ (66 

FR 28355, May 22, 2001) because it is 

not a significant regulatory action under 

Executive Order 12866. 

I. National Technology Transfer and 

Advancement Act 

Section 12 of the National Technology 

Transfer and Advancement Act 

(NTTAA) of 1995 requires Federal 

agencies to evaluate existing technical 

standards when developing a new 

regulation. To comply with NTTAA, the 

EPA must consider and use ‘‘voluntary 

consensus standards’’ (VCS) if available 

and applicable when developing 

programs and policies unless doing so 

would be inconsistent with applicable 

law or otherwise impractical. 

The EPA believes application of VCS 

to this action would be inconsistent 

with the Clean Air Act. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Population 

Executive Order (EO) 12898 (59 FR 

7629 (Feb. 16, 1994)) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

The EPA has determined that this rule 

will not have disproportionately high 

and adverse human health or 

environmental effects on minority or 

low-income populations because it does 

not change the level of environmental 

protection for any affected populations. 

K. Congressional Review Act 

The Congressional Review Act, 5 

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

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. The EPA will 

submit a report containing this rule and 

other required information to the U.S. 

Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the United States prior to 

publication of the rule in the Federal 

Register. A major rule cannot take effect 

until 60 days after it is published in the 

Federal Register. This action is not a 

‘‘major rule’’ as defined by 5 U.S.C. 

804(2). 

L. Petitions for Judicial Review 

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

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by January 4, 2016. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this rule for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements (see CAA 

section 307(b)(2)). 

List of Subjects in 40 CFR Part 52 

Air pollution control, Carbon 

monoxide, Environmental protection, 

Greenhouse gases, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: June 29, 2015. 

Jared Blumenfeld, 

Regional Administrator, Region IX. 

40 CFR part 52 is amended as follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

■ 2. Section 52.120 is amended: 

■ a. By revising paragraphs (c)(27)(i)(C), 

(c)(43)(i)(C), (c)(45)(i)(D). 

■ b. By adding paragraph 

(c)(47)(i)(A)(1). 

■ c. By revising paragraph (c)(50)(i)(C). 

■ d. By revising paragraph (c)(54)(i)(E). 

■ e. By adding paragraph (c)(54)(i)(H). 

■ f. By revising paragraph (c)(56)(i)(C). 

■ g. By adding paragraphs 

(c)(59)(i)(A)(2) and (c)(161)(i)(A)(6). 

■ h. By revising the introductory text of 

paragraph (c)(162) 

■ i. By adding paragraphs 

(c)(162)(i)(A)(3) and (4), and (c)(162)(ii). 

The revisions and additions read as 

follows: 

§ 52.120 Identification of plan. 

* * * * * 

(c) * * * 

(27) * * * 

(i) * * * 

(C) Previously approved in paragraphs 

(c)(27)(i)(A) and (B) of this section and 

now deleted without replacement: R9– 

3–101 (all paragraphs and nos. listed), 

paragraph B of R9–3–217, R9–3–301 (all 

paragraphs listed), R9–3–306 (all 

paragraphs listed), R9–3–307 (all 

paragraphs listed), R9–3–308, R9–3–310 

(Paragraph C), R9–3–311 (Paragraph A), 

R9–3–312, R9–3–314, R9–3–315, R9–3– 

316, R9–3–317, R9–3–318, R9–3–518 

(Paragraphs B and C), R9–3–319, R9–3– 

1101, and Appendix 10 (Sections 


asabaliauskas on DSK5VPTVN1PROD with RULES
67334 Federal Register / Vol. 80, No. 211 / Monday, November 2, 2015 / Rules and Regulations 

A10.1.3.3, A10.1.4 and A10.2.2 to 

A10.3.4). 

* * * * * 

(43) * * * 

(i) * * * 

(C) Previously approved in paragraphs 

(c)(43)(i)(A) and (B) of this section and 

now deleted without replacement: R9– 

3–101 (all paragraphs and nos. listed), 

R9–3–301 (all paragraphs listed), R9–3– 

302 (all paragraphs listed), R9–3–303, 

R9–3–306 (all paragraphs listed), R9–3– 

307 (all paragraphs listed), and R9–3– 

518 (Paragraph A.1 to A.5). 

* * * * * 

(45) * * * 

(i) * * * 

(D) Previously approved in 

paragraphs (c)(45)(i)(A) and (B) of this 

section and now deleted without 

replacement: R9–3–101 (all paragraphs 

and nos. listed), R9–3–301 (all 

paragraphs listed), R9–3–306 (all 

paragraphs listed), R9–3–311 (all 

paragraphs listed), R9–3–509, and 

Appendix 10 (Sections A10.2 and 

A10.2.1). 

* * * * * 

(47) * * * 

(i) * * * 

(A) * * * 

(1) Previously approved in this 

paragraph (c)(47)(i)(A) and now deleted 

without replacement: R9–3–101 (all 

paragraphs and nos. listed). 

* * * * * 

(50) * * * 

(i) * * * 

(C) Previously approved in paragraph 

(c)(50)(i)(A) of this section and now 

deleted without replacement: R9–3–310 

(Paragraphs A and B) and Appendix 10 

(Sections A10.1–A10.1.3.2). 

* * * * * 

(54) * * * 

(i) * * * 

(E) Previously approved in paragraphs 

(c)(54)(i)(B) and (c)(54)(i)(C) of this 

section and now deleted without 

replacement: R9–3–101 (all nos. listed 

except no. 20). 

* * * * * 

(H) Previously approved in 

paragraphs (c)(54)(i)(B), (C), and (D) of 

this section and now deleted without 

replacement: R9–3–301 (all paragraphs 

except paragraphs I and K), R9–3–302 

(all paragraphs listed), R9–3–303 (all 

paragraphs listed), R9–3–304 (all 

paragraphs except paragraph H), R9–3– 

305, R9–3–306 (paragraph A only), and 

R9–3–1101 (all paragraphs listed). 

* * * * * 

(56) * * * 

(i) * * * 

(C) Previously approved in paragraphs 

(c)(56)(i)(A) and (B) of this section and 

now deleted without replacement: R9– 

3–101 (Nos. 135 and 157), R9–3–218, 

R9–3–310, R9–3–322, R9–3–1101 and 

Appendix 11. 

* * * * * 

(59) * * * 

(i) * * * 

(A) * * * 

(2) Previously approved in paragraph 

(c)(59)(i)(A)(1) of this section and now 

deleted without replacement: R9–3–303. 

* * * * * 

(161) * * * 

(i) * * * 

(A) * * * 

(6) Arizona Administrative Code, 

Title 18, ‘‘Environmental Quality’’, 

chapter 2,’’Department of 

Environmental Quality—Air Pollution 

Control’’, R18–2–311, ‘‘Test Methods 

and Procedures,’’ and R18–2–312, 

‘‘Performance Tests,’’ effective 

November 15, 1993. 

(162) The following plan revision was 

submitted on October 29, 2012, and 

supplemented on September 6, 2013 

and July 2, 2014, by the Governor’s 

designee. 

(i) * * * 

(A) * * * 

(3) Arizona Administrative Code, 

Title 18, ‘‘Environmental Quality,’’ 

chapter 2 ‘‘Department of 

Environmental Quality—Air Pollution 

Control,’’ R18–2–101, ‘‘Definitions,’’ 

only definition nos. (2), (32), (87), (109), 

and (122), effective August 7, 2012; 

R18–2–217, ‘‘Designation and 

Classification of Attainment Areas,’’ 

effective November 15, 1993; R18–2– 

218, ‘‘Limitation of Pollutants in 

Classified Attainment Areas,’’ effective 

August 7, 2012; R18–2–301, 

‘‘Definitions,’’ effective August 7, 2012; 

R18–2–302, ‘‘Applicability; Registration; 

Classes of Permits,’’ effective August 7, 

2012; R18–2–302.01, ‘‘Source 

Registration Requirements,’’ effective 

August 7, 2012; R18–2–303, ‘‘Transition 

from Installation and Operating Permit 

Program to Unitary Permit Program; 

Registration Transition; Minor NSR 

Transition,’’ effective August 7, 2012; 

R18–2–304, ‘‘Permit Application 

Processing Procedures,’’ effective 

August 7, 2012; R18–2–306, ‘‘Permit 

Contents,’’ effective December 20, 1999; 

R18–2–306.01, ‘‘Permits Containing 

Voluntarily Accepted Emission 

Limitations and Standards,’’ effective 

January 1, 2007; R18–2–306.02, 

‘‘Establishment of an Emissions Cap,’’ 

effective September 22, 1999; R18–2– 

315, ‘‘Posting of Permit,’’ effective 

November 15,1993; R18–2–316, ‘‘Notice 

by Building Permit Agencies,’’ effective 

May 14, 1979; R18–2–319, ‘‘Minor 

Permit Revisions,’’ August 7, 2012; R18– 

2–320, ‘‘Significant Permit Revisions,’’ 

effective August 7, 2012; R18–2–321, 

‘‘Permit Reopenings; Revocation and 

Reissuance; Termination,’’ effective 

August 7, 2012; R18–2–323, ‘‘Permit 

Transfers,’’ effective February 3, 2007; 

R18–2–330, ‘‘Public Participation,’’ 

effective August 7, 2012; R18–2–332, 

‘‘Stack Height Limitation,’’ effective 

November 15, 1993; R18–2–334, ‘‘Minor 

New Source Review’’ effective August 7, 

2012; R18–2–401 ‘‘Definitions,’’ 

effective August 7, 2012; R18–2–402 

‘‘General,’’ effective August 7, 2012; 

R18–2–403 ‘‘Permits for Sources 

Located in Nonattainment Areas,’’ 

effective August 7, 2012; R18–2–404, 

‘‘Offset Standards,’’ effective August 7, 

2012; R18–2–405, ‘‘Special Rule for 

Major Sources of VOC or Nitrogen 

Oxides in Ozone Nonattainment Areas 

Classified as Serious or Severe,’’ 

effective August 7, 2012; R18–2–406, 

‘‘Permit Requirements for Sources 

Located in Attainment and 

Unclassifiable Areas,’’ effective August 

7, 2012; R18–2–407, ‘‘Air Quality 

Impact Analysis and Monitoring 

Requirements,’’ excluding subsection 

(H)(1)(c), effective August 7, 2012; R18– 

2–409, ‘‘Air Quality Models,’’ effective 

November 15, 1993; and R18–2–412, 

‘‘PALs’’ effective August 7, 2012. 

(4) Arizona Revised Statutes, title 49, 

‘‘Environment,’’ chapter 1 ‘‘General 

Provisions’’, section 49–107, ‘‘Local 

delegation of state authority,’’ effective 

July 1, 1987. 

(ii) Additional materials. 

(A) Arizona Department of 

Environmental Quality. 

(1) Setting Applicability Thresholds, 

pages 1547–1549 in Appendix A to 

‘‘State Implementation Plan Revision: 

New Source Review’’ adopted on 

October 29, 2012. 

(2) Memorandum, ‘‘Proposed Final 

Permits to be Treated as Appealable 

Agency Actions,’’ dated February 10, 

2015, from Eric Massey, Air Quality 

Division Director to Balaji 

Vaidyanathan, Permit Section Manager, 

submitted on February 23, 2015. 

(3) ‘‘State Implementation Plan 

Revision: New Source Review— 

Supplement,’’ relating to the division of 

jurisdiction for New Source Review in 

Arizona, adopted on July 2, 2014. 

* * * * * 

[FR Doc. 2015–27785 Filed 10–30–15; 8:45 am] 

BILLING CODE 6560–50–P 


asabaliauskas on DSK5VPTVN1PROD with RULES