14044 Federal Register / Vol. 80, No. 52 / Wednesday, March 18, 2015 / Proposed Rules 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Incorporation by reference, 

Ozone, Reporting and recordkeeping 

requirements. 

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

Dated: March 6, 2015. 

William C. Early, 

Acting Regional Administrator, Region III. 

[FR Doc. 2015–06220 Filed 3–17–15; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR part 52 

[EPA–R09–OAR–2015–0187; FRL–9924–48– 

Region 9] 

Revisions to Air Plan; Arizona; 

Stationary Sources; New Source 

Review 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing a limited 

approval and limited disapproval of 

revisions to the Arizona Department of 

Environmental Quality (ADEQ) portion 

of the applicable state implementation 

plan (SIP) for the State of Arizona. 

These revisions 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 

but not limited to review and permitting 

of major sources and major 

modifications under the Clean Air Act 

(CAA or Act). After a lengthy 

stakeholder process, the State of 

Arizona developed and submitted a 

NSR program for SIP approval that 

satisfies most of the applicable Clean 

Air Act and NSR regulatory 

requirements, and will significantly 

update ADEQ’s existing SIP-approved 

NSR program. It also represents an 

overall strengthening of ADEQ’s SIPapproved NSR program by clarifying 

and enhancing the NSR permitting 

requirements for major and minor 

stationary sources. This proposed action 

will update the applicable plan and set 

the stage for remedying certain 

deficiencies in these rules. We are 

seeking comment on our proposed 

action and plan to follow with a final 

action. 

DATES: Any comments must arrive by 

April 17, 2015. 

ADDRESSES: Submit comments, 

identified by docket number EPA–R09– 

OAR–2015–0187, by one of the 

following methods: 

1. Federal eRulemaking Portal: 

www.regulations.gov. Follow the online 

instructions. 

2. Email: R9airpermits@epa.gov. 

3. Mail or deliver: Gerardo Rios (Air3), U.S. Environmental Protection 

Agency, Region 9, 75 Hawthorne Street, 

San Francisco, CA 94105–3901. 

Deliveries are only accepted during the 

Regional Office’s normal hours of 

operation. 

Instructions: All comments will be 

included in the public docket without 

change and may be made available 

online at www.regulations.gov, 

including any personal information 

provided, unless the comment includes 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Information that 

you consider CBI or otherwise protected 

should be clearly identified as such and 

should not be submitted through 

www.regulations.gov or email. 

www.regulations.gov is an ‘‘anonymous 

access’’ system, and EPA will not know 

your identity or contact information 

unless you provide it in the body of 

your comment. If you send email 

directly to EPA, your email address will 

be automatically captured and included 

as part of the public comment. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket: Generally, documents in the 

docket for this action are available 

electronically at www.regulations.gov 

and in hard copy at EPA Region 9, 75 

Hawthorne Street, San Francisco, 

California. While all documents in the 

docket are listed at 

www.regulations.gov, some information 

may be publicly available only at the 

hard copy location (e.g., copyrighted 

material, large maps), and some may not 

be publicly available in either location 

(e.g., 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. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, the terms 

‘‘we,’’ ‘‘us,’’ and ‘‘our’’ refer to EPA. 

Table of Contents 

I. The State’s Submittals 

A. Which rules or statutory provisions did 

the State submit? 

B. Are there previous versions of the 

statutory provisions or rules in the 

Arizona SIP? 

C. What is the purpose of this proposed 

rule? 

II. EPA’s Evaluation 

A. How is EPA evaluating the rules and 

statutory provisions? 

B. Do the rules meet the evaluation criteria 

for Minor New Source Review? 

1. Legally Enforceable Procedures 

2. ADEQ’s Program Under 40 CFR 

51.160(e) 

3. Public Availability of Information 

4. Administrative Procedures 

5. Stack Height Procedures 

C. Do the rules meet the evaluation criteria 

for Prevention of Significant 

Deterioration (PSD)? 

1. General PSD Program Requirements 

2. Restrictions on Area Classifications 

3. Redesignations 

4. Impacts on Class I Areas 

5. Public Participation 

6. Plantwide Applicability Limits 

7. Definitions 

8. PM2.5 Significant Monitoring 

Concentration 

9. Definition for Basic Design Parameter 

D. Do the rules meet the evaluation criteria 

for Nonattainment New Source Review? 

1. General Nonattainment NSR Program 

Requirements 

2. Plantwide Applicability Limits 

3. Definitions 

4. Definition for Basic Design Parameter 

5. Additional Provisions for Particulate 

Matter Nonattainment Areas 

E. Review of Non-NSR Related Rules and 

Statutory Provisions 

F. Review of Rules and Statutory 

Provisions Requested To Be Removed 

From the SIP 

G. Do the rules meet the evaluation criteria 

under Sections 110(l) and 193 of the Act? 

H. Conclusion 

III. Public Comment and Proposed Action 

IV. Incorporation by Reference 

V. Statutory and Executive Order Reviews 

Definitions 

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 BACT mean or refer to Best 

Available Control Technology. 

(v) The initials CFR mean or refer to Code 

of Federal Regulations. 

(vi) The initials CO means or refer to 

carbon monoxide. 

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

or refer to the United States Environmental 

Protection Agency. 

(viii) The initials FIP mean or refer to 

Federal Implementation Plan. 


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1 In addition, these submittals and our current 

action also address two rules and one statutory 

provision that are not directly related to NSR. 2We note that portions of ADEQ’s SIP-approved 

rule R18–2–310, which provides affirmative 

defenses for excess emissions during malfunctions 

(R18–2–310(B)) and for excess emissions during 

startup or shutdown (R18–2–310(C)), are currently 

the subject of a separate rulemaking action by EPA. 

In a 2013 notice of proposed rulemaking, and a 

2014 supplemental notice of proposed rulemaking 

that revised certain of the findings described in the 

2013 notice, EPA proposed to find R18–2–310(B) 

and R18–2–310(C) substantially inadequate to meet 

CAA requirements and proposed to issue a SIP call 

with respect to these provisions. See 78 FR 12460, 

12533–34, Feb. 22, 2013; 79 FR 55920, 55946–47, 

Sept. 17, 2014. ADEQ’s R18–2–310 is not part of the 

ADEQ SIP submittal that is under consideration in 

this action, and this rule is not being evaluated or 

otherwise addressed by EPA as part of our current 

action on ADEQ’s SIP submittal. 

3Rules R18–2–301 through R18–2–334 (Article 3 

rules) also contain requirements to address the CAA 

title V requirements for operating permit programs, 

but we are not evaluating these rules for title V 

purposes at this time. We will evaluate the Article 

3 rules for compliance with the requirements of title 

V of the Act and EPA’s implementing regulations 

in 40 CFR part 70 following receipt of an official 

part 70 program revision submittal from ADEQ. 

4ADEQ has delegated implementation of the 

major source program to the Pinal County Air 

Quality Control District. 

(ix) The initials GHG mean or refer to 

greenhouse gas. 

(x) The initials IBR mean or refer to 

incorporation by reference. 

(xi) The initials LAER mean or refer to 

Lowest Achievable Emissions Rate. 

(xii) The initials NAAQS mean or refer to 

National Ambient Air Quality Standards. 

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

Nonattainment New Source Review. 

(xiv) The initials NOX mean or refer to 

nitrogen oxides. 

(xv) The initials NSR mean or refer to New 

Source Review. 

(xvi) The initials PAL mean or refer to 

Plantwide Applicability Limits. 

(xvii) The initials PM10 mean or refer to 

particulate matter with an aerodynamic 

diameter of less than or equal to 10 

micrometers (coarse particulate matter). 

(xviii) 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). 

(xix) The initials PSD mean or refer to 

Prevention of Significant Deterioration. 

(xx) The initials PTE mean or refer to 

potential to emit. 

(xxi) The initials RACT mean or refer to 

reasonable available control technology. 

(xxii) The initials SIP mean or refer to State 

Implementation Plan. 

(xxiii) The initials SMC mean or refer to 

significant monitoring concentration. 

(xxiv) The initials SO2 mean or refer to 

sulfur dioxide. 

(xxv) The words State or Arizona mean the 

State of Arizona, unless the context indicates 

otherwise. 

(xxvi) The initials TSD mean or refer to the 

technical support document for this action. 

(xxvii) The initials VOC mean or refer to 

volatile organic compound. 

I. The State’s Submittals 

A. Which rules or statutory provisions 

did the State submit? 

On July 28, 2011 and October 29, 

2012, ADEQ submitted revisions to the 

ADEQ portion of the Arizona SIP. On 

May 16, 2014, ADEQ supplemented the 

July 28, 2011 submittal. On September 

6, 2013, July 2, 2014, and February 16, 

2015, ADEQ supplemented the October 

29, 2012 submittal. Collectively, these 

submittals generally comprise ADEQ’s 

current program for preconstruction 

review and permitting of new or 

modified stationary sources under 

ADEQ’s jurisdiction in Arizona (as 

described below).1 The NSR SIP 

revisions that are the subject of this 

action, 2 referred to herein as the ‘‘NSR 

SIP submittal’’ represent a 

comprehensive revision to ADEQ’s 

preconstruction review and permitting 

program and are intended to satisfy the 

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.3 The 

preconstruction review and permitting 

programs are often collectively referred 

to as ‘‘New Source Review’’ (NSR). 

The proposed revisions to the SIP that 

are subject to this action cover those 

areas of Arizona where ADEQ has 

jurisdiction. Currently, ADEQ has 

permitting jurisdiction for the following 

stationary source categories in all areas 

of Arizona: Smelting of metal ores, coalfired electric generating stations, 

petroleum refineries, Portland cement 

plants, and portable sources. ADEQ also 

has permitting jurisdiction for major 

and minor sources in the following 

counties: Apache, Cochise, Coconino, 

Gila, Graham, Greenlee, La Paz, 

Mohave, Navajo, Santa Cruz, Yavapai, 

and Yuma. Finally, ADEQ has 

permitting jurisdiction over major 

sources in Pinal County 4 and the 

Rosemont Copper Mine in Pima County. 

Table 1 lists the rules we are 

proposing for approval in today’s action 

with the corresponding effective dates 

and submittal dates. The submitted 

rules are from the Arizona 

Administrative Code, Title 18— 

Environmental Quality, Chapter 2— 

Department of Environmental Quality— 

Air Pollution Control, Articles 1, 2, 3, 

and 4. The submitted statutory 

provision is from Title 49 of the Arizona 

Revised Statutes, Chapter 1, Article 1. 

TABLE 1—SUBMITTED STATUTES AND RULES PROPOSED FOR APPROVAL IN THIS ACTION

Rule or statute Title 

State 

effective 

date 

Submitted 

A.R.S § 49–107 ........................................................... Local delegation of state authority ............................ 08/18/1987 07/2/2014 

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

and (122)].

Definitions .................................................................. 08/07/2012 10/29/2014 

R18–2–217 .................................................................. Designation and Classification of Attainment Areas 11/15/1993 10/29/2014 

R18–2–218 .................................................................. Limitation of Pollutants in Classified Attainment 

Areas.

08/07/2012 10/29/2014 

R18–2–301 .................................................................. Definitions .................................................................. 08/07/2012 10/29/2014 

R18–2–302 .................................................................. Applicability; Registration; Classes of Permits .......... 08/07/2012 10/29/2014 

R18–2–302.01 ............................................................. Source Registration Requirements ............................ 08/07/2012 10/29/2014 

R18–2–303 .................................................................. Transition from Installation and Operating Permit 

Program to Unitary Permit Program; Registration 

transition; Minor NSR transition.

08/07/2012 10/29/2014 

R18–2–304 .................................................................. Permit Application Processing Procedures ............... 08/07/2012 10/29/2014 

R18–2–306 .................................................................. Permit Contents ......................................................... 12/20/1999 10/29/2014 

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

Limitations and Standards.

01/01/2007 10/29/2014 

R18–2–306.02 ............................................................. Establishment of an Emissions Cap .......................... 09/22/1999 10/29/2014 

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


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5Except for certain sections that ADEQ requested 

that we not remove from the SIP at this time. 

TABLE 1—SUBMITTED STATUTES AND RULES PROPOSED FOR APPROVAL IN THIS ACTION—Continued 

Rule or statute Title 

State 

effective 

date 

Submitted 

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

R18–2–315 .................................................................. Posting of Permit ....................................................... 11/15/1993 10/29/2014 

R18–2–316 .................................................................. Notice by Building Permit Agencies .......................... 05/14/1979 10/29/2014 

R18–2–319 .................................................................. Minor Permit Revisions .............................................. 08/07/2012 10/29/2014 

R18–2–320 .................................................................. Significant Permit Revisions ...................................... 08/07/2012 10/29/2014 

R18–2–321 .................................................................. Permit Reopenings; Revocation and Reissuance ..... 08/07/2012 10/29/2014 

R18–2–323 .................................................................. Permit Transfers ........................................................ 02/03/2007 10/29/2014 

R18–2–330 .................................................................. Public Participation .................................................... 08/07/2012 10/29/2014 

R18–2–332 .................................................................. Stack Height Limitation .............................................. 11/15/1993 10/29/2014 

R18–2–334 .................................................................. Minor New Source Review ........................................ 08/07/2012 10/29/2014 

R18–2–401 [excluding definition (3)] .......................... Definitions .................................................................. 08/07/2012 10/29/2014 

R18–2–402 .................................................................. General ...................................................................... 08/07/2012 10/29/2014 

R18–2–403 .................................................................. Permits for Sources Located in Nonattainment 

Areas.

08/07/2012 10/29/2014 

R18–2–404 .................................................................. Offset Standards ........................................................ 08/07/2012 10/29/2014 

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 10/29/2014 

R18–2–406 .................................................................. Permit Requirements for Sources Located in Attainment and Unclassifiable Areas.08/07/2012 10/29/2014 

R18–2–407 [excluding subsection (H)(1)(c)] .............. Air Quality Impact Analysis and Monitoring Requirements.08/07/2012 10/29/2014 

R18–2–409 .................................................................. Air Quality Models ..................................................... 11/15/1993 10/29/2014 

R18–2–412 .................................................................. PALs .......................................................................... 08/07/2012 10/29/2014 

On December 28, 2012, April 29, 

2013, and December 2, 2014, ADEQ’s 

July 28, 2011, October 29, 2012, and 

July 2, 2014 submittals, respectively, 

were deemed complete by operation of 

law to meet the completeness criteria in 

40 CFR part 51, appendix V, which 

must be met before formal EPA review. 

Each of these submittals includes 

evidence of public notice and adoption 

of the regulation. Our technical support 

document (TSD) provides additional 

background information on each of the 

submitted rules. 

B. Are there previous versions of the 

statutory provisions or rules in the 

Arizona SIP? 

EPA has not approved significant 

revisions or updates to ADEQ’s SIPapproved NSR program since the 1980s. 

The existing SIP-approved NSR program 

for new or modified stationary sources 

under ADEQ’s jurisdiction generally 

consists of the rules identified below in 

Table 2 that we are proposing to 

supersede in or delete from the Arizona 

SIP. Collectively, these regulations 

established the NSR requirements for 

both major and minor stationary sources 

under ADEQ jurisdiction in Arizona, 

including requirements for the 

generation and use of emission 

reduction credits in nonattainment 

areas. 

Consistent with ADEQ’s stated intent 

to have the submitted NSR rules replace 

the existing NSR program in the SIP, 

EPA’s approval of the regulations 

identified above in Table 1 generally 

would have the effect of superseding 

our prior approval of the current SIPapproved NSR program.5 Table 2 lists 

the existing rules in the Arizona SIP that 

would be superseded or removed from 

the Arizona SIP as a result of our 

proposed action. If EPA were to take 

final action as proposed herein, these 

rules generally would be replaced in, or 

otherwise deleted from, the SIP by the 

submitted set of rules listed in Table 1. 

TABLE 2—SIP RULES SUPERSEDED OR REMOVED FROM ARIZONA SIP IN THIS ACTION

Rule or statute Title EPA Approval 

date 

Federal 

Register 

citation 

R9–3–101 .................................................................... Definitions .................................................................. Various Various 

R9–3–217(B) ............................................................... Attainment Areas: Classification and Standards ....... 04/23/1982 47 FR 17486 

R9–3–301, [excluding subsections (I), (K)] ................. Installation Permits: General ..................................... 05/03/1983 48 FR 198879 

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 19879 

R9–3–305 .................................................................... Air Quality Analysis and Monitoring Requirements ... 05/03/1983 48 FR 19879 

R9–3–306 .................................................................... Source Registration Requirements ............................ 05/03/1983 48 FR 19879 

R9–3–307 .................................................................... Replacement .............................................................. 05/05/1982 47 FR 19328 

R9–3–308 .................................................................... Permit Conditions ...................................................... 04/23/1982 47 FR 17485 

R9–3–311 .................................................................... Air Quality Models ..................................................... 04/23/1982 47 FR 17485 

R9–3–314 .................................................................... Excess Emissions Reporting ..................................... 04/23/1982 47 FR 17485 

R9–3–315 .................................................................... Posting of Permits ..................................................... 04/23/1982 47 FR 17485 


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6CAA section 110(l) requires SIP revisions to be 

subject to reasonable notice and public hearing 

prior to adoption and submittal by States to EPA 

and prohibits EPA from approving any SIP revision 

that would interfere with any applicable 

requirement concerning attainment and reasonable 

further progress, or any other applicable 

requirement of the CAA. CAA section 193, which 

was added by the CAA Amendments of 1990, 

includes a savings clause that provides, in pertinent 

part: ‘‘No control requirement in effect, or required 

to be adopted by an order, settlement agreement, or 

plan in effect before November 15, 1990, in any area 

which is a nonattainment area for any air pollutant 

may be modified after November 15, 1990, in any 

manner unless the modification insures equivalent 

or greater emission reductions of such air 

pollutant.’’ 

TABLE 2—SIP RULES SUPERSEDED OR REMOVED FROM ARIZONA SIP IN THIS ACTION—Continued 

Rule or statute Title EPA Approval 

date 

Federal 

Register 

citation 

R9–3–316 .................................................................... Notice by Building Permit Agencies .......................... 04/23/1982 47 FR 17485 

R9–3–317 .................................................................... Permit Non-transferrable; Exception ......................... 04/23/1982 47 FR 17485 

R9–3–318 .................................................................... Denial or Revocation of Installation or Operating 

Permit.

04/23/1982 47 FR 17485 

R8–3–319 .................................................................... Permit Fees ............................................................... 04/23/1982 47 FR 17485 

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

R9–3–1101 .................................................................. Jurisdiction ................................................................. 05/03/1983 48 FR 19879 

Appendix 4 .................................................................. Fee Schedule for Installation and Operating Permits 09/19/1977 42 FR 16926 

Appendix 5 .................................................................. Fee Schedule for Conditional Permits ....................... 09/19/1977 42 FR 46926 

C. What is the purpose of this proposed 

rule? 

The purpose of this proposed rule is 

to present our evaluation under the 

CAA and EPA’s regulations of rules and 

statutory provisions submitted by ADEQ 

on July 28, 2011, October 29, 2012, and 

July 2, 2014, which are identified in 

Table 1. We provide our reasoning in 

general terms below, and include our 

more detailed analysis in the TSD, 

which is available in the docket for this 

proposed rulemaking. 

II. EPA’s Evaluation 

A. How is EPA evaluating the rules and 

statutory provisions? 

EPA has reviewed the provisions 

submitted by ADEQ that are the subject 

of this action, including those governing 

NSR for stationary sources under ADEQ 

jurisdiction for compliance with the 

CAA’s general requirements for SIPs in 

CAA section 110(a)(2), EPA’s 

regulations for stationary source 

permitting programs in 40 CFR part 51, 

sections 51.160 through 51.166, and the 

CAA requirements for SIP revisions in 

CAA section 110(l) and 193.6

With respect to procedures, CAA 

sections 110(a) and 110(l) require that 

revisions to a SIP be adopted by the 

State after reasonable notice and public 

hearing. EPA has promulgated specific 

procedural requirements for SIP 

revisions in 40 CFR part 51, subpart F. 

These requirements include publication 

of notices, by prominent advertisement 

in the relevant geographic area, of a 

public hearing on the proposed 

revisions, a public comment period of at 

least 30 days, and an opportunity for a 

public hearing. 

Based on our review of the public 

process documentation included in the 

July 28, 2011, October 29, 2012 and July 

2, 2014 submittals, we find that ADEQ 

has provided sufficient evidence of 

public notice and opportunity for 

comment and public hearings prior to 

adoption and submittal of these rules to 

EPA. 

With respect to substantive 

requirements, we have generally 

reviewed the ADEQ provisions that are 

the subject of our current action in 

accordance with the CAA and 

applicable regulatory requirements, 

focusing primarily on 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) Nonattainment 

NSR permit programs under part D of 

title I of the Act (NA–NSR). For the most 

part, ADEQ’s submittal satisfies 

applicable CAA requirements, 

specifically including the applicable 

requirements for these three 

preconstruction review programs and 

would strengthen the applicable SIP by 

updating the regulations and adding 

requirements to address new or revised 

NSR permitting and other requirements 

promulgated by EPA, but the submitted 

rules also contain specific deficiencies 

that prevent full approval. Below, we 

discuss generally our evaluation of 

ADEQ’s submittal and the deficiencies 

that are the basis for our proposed 

action on these rules. Our TSD contains 

a more detailed evaluation as well as 

additional recommendations for 

program improvements. 

B. Do the rules meet the evaluation 

criteria for Minor New Source Review? 

Section 110(a)(2)(C) requires each SIP 

to include a program for the regulation 

of the modification and construction of 

any stationary source within the areas 

covered by the plan as necessary to 

assure attainment and maintenance of 

the National Ambient Air Quality 

Standards (NAAQS). In addition to the 

permit programs required under parts C 

and D of the CAA for PSD sources and 

nonattainment NSR sources, 

respectively, which are discussed 

below, EPA’s regulations at 40 CFR 

51.160–51.164 provide general 

programmatic requirements to 

implement this statutory mandate 

commonly referred to as the ‘‘minor 

NSR program.’’ These minor NSR 

program regulations impose 

requirements for SIP approval of State 

and local programs that are more 

general in nature as compared with the 

specific statutory and regulatory 

requirements for PSD and NA–NSR 

permitting programs. Under EPA’s 

regulations governing the minor NSR 

program, States and local air agencies 

retain a level of discretion to define the 

types and sizes of sources subject to the 

program, whereas under the PSD and 

nonattainment NSR permitting 

programs, the sources subject to 

regulation are specified by EPA 

regulations. The substantive 

requirements for the preconstruction 

review and permitting of minor 

stationary sources under ADEQ 

jurisdiction are ADEQ rules R18–2– 

302.01 and R18–2–334. These rules, and 

other administrative rules included in 

the minor NSR portion of the SIP 

submittal, satisfy most of the statutory 

and regulatory requirements for minor 

NSR programs, but these rules also 

contain several deficiencies that form 

the basis for our proposed limited 

disapproval, as discussed below. 

We are proposing a limited approval 

and limited disapproval of ADEQ’s 

minor NSR program because it is not 

fully consistent with the requirements 

of 40 CFR 51.160, 40 CFR 51.161, 40 

CFR 51.163 and 40 CFR 51.164, as 

described below. We find that approval 


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7ADEQ Memo—Proposed Final Permits to be 

Treated as Appealable Agency Actions, dated 

February 10, 2015 and ADEQ’s February 23, 20157

supplement at 2. 

8ADEQ’s list of state air standards does not 

contain the current PM2.5 annual NAAQS of 12 m g/ 

m3 PM2.5. See 78 FR 3086, Jan. 13, 2013. This is 

not a disapproval issue for ADEQ’s minor NSR and 

NA–NSR programs, which have three years to adopt 

programs implementing the new NAAQS. However, 

the new NAAQS is applied immediately upon its 

effective date to sources subject to the PSD program. 

9For example, R18–2–407(B) contains ‘‘any such 

pollutant for which no Arizona ambient air quality 

standard exists.’’ ‘‘Arizona ambient air quality 

standard’’ is not a defined term in ADEQ’s 

regulations. 

10See, for example, the definition of ‘‘attainment 

area’’ in R18–2–101, limiting attainment areas to 

those in Arizona. A.R.S. § 49–106 provides, in 

relevant part: ‘‘The rules adopted by the department 

apply and shall be observed throughout this state, 

or as provided by their terms, and the appropriate 

local officer, council or board shall enforce them.’’ 

of ADEQ’s updated minor NSR program 

will substantially strengthen the SIP 

overall, as the submitted minor NSR 

program generally has more extensive 

requirements for minor sources and 

non-major modifications than ADEQ’s 

current SIP-approved program and 

lower permitting thresholds that will 

provide additional mechanisms for 

protecting the NAAQS, as well as 

updating the SIP with current State 

regulations for minor sources and nonmajor modifications. However, specific 

provisions of the minor NSR program 

submittal are inconsistent with federal 

minor NSR program requirements, and 

these deficiencies must be addressed 

before we can fully approve ADEQ’s 

minor NSR program into the SIP. The 

deficiencies that we have identified 

with ADEQ’s minor NSR program that 

provide the basis for our limited 

approval and limited disapproval are 

described below. 

1. Legally Enforceable Procedures 

40 CFR 51.160 requires that each NSR 

program contain certain legally 

enforceable procedures. We have 

identified several deficiencies with 

ADEQ’s program as it pertains to these 

requirements. 

First, as required by 40 CFR 51.160(a), 

ADEQ’s permitting procedures are not 

enforceable in all instances. ADEQ’s 

program allows certain sources to begin 

construction when a ‘‘proposed final 

permit’’ is issued by ADEQ, rather than 

preventing construction until a final 

permit has been issued. See R18–2– 

101(114), R18–2–302(G), R18–2–334(B), 

R18–2–402(C). The definition for 

‘‘proposed final permit’’ in R18–2–101 

does not specify that such an action is 

a final decision for NSR purposes. As a 

result, 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). ADEQ has 

clarified that, in effect, under ADEQ’s 

rules, a proposed final permit is treated 

as a final authorization to construct, and 

that it will treat proposed final permit 

as a final, appealable agency action 

under Arizona law.7 Nevertheless, a 

revision to ADEQ’s NSR program is 

necessary to ensure that these types of 

permit actions clearly serve as a final 

authority to construct in order to satisfy 

the federal NSR program requirement 

that the agency be able to prevent 

construction until and unless it has 

issued a final decision on the request for 

authority to construct. 

Second, ADEQ’s program does not 

contain adequate enforceable 

procedures to ensure compliance by 

sources subject to review under its NSR 

program with the NAAQS as required 

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

Although NAAQS is a defined term in 

ADEQ’s regulations, see R18–2–101(85), 

ADEQ’s NSR program generally does 

not refer to the NAAQS and instead 

generally references the State’s ambient 

air standards in Article 2 of ADEQ’s air 

program. See R18–2–302.01, R18–2– 

334, and R18–2–406.8 Also, in some 

instances, ADEQ’s NSR regulations 

simply refer to Arizona ambient air 

quality standards with no specific 

reference to Article 2, which makes the 

applicable standards ambiguous.9 See 

R18–2–218, R18–2–406, and R18–2– 

407. In some instances, ADEQ’s NSR 

program does not ensure that a source 

would not interfere with attainment or 

maintenance of the NAAQS in 

neighboring areas outside ADEQ’s 

permitting jurisdiction, as is required 

under 40 CFR 51.160(a) and (b), as the 

State air standards are not generally 

applicable in neighboring States,10 and 

the NSR Program submittal does not 

demonstrate that they are applicable in 

neighboring States for purposes of 

ADEQ’s NSR program. See R18–2– 

302.01(C); R18–2–334(C)(2), (F), and (G); 

and R18–2–406(A)(5)(a) and (b). Also, 

for minor sources subject to permitting 

under R18–2–334, the rule does not 

meet these federal requirements as it 

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 

and, in some cases, appears to allow 

sources with lower levels of emissions 

to avoid both substantive NAAQS 

review and RACT requirements. See 

R18–2–334(C)(1)(a)–(b). ADEQ has not 

demonstrated that this approach ensures 

that all sources subject to review under 

its NSR program will not interfere with 

attainment or maintenance of the 

NAAQS. While R18–2–334(G) allows 

Director’s discretion to require a 

NAAQS analysis on a case-by-case 

basis, we find this discretion too great 

to ensure compliance with this 

requirement. Finally, R18–2– 

302.01(C)(4) needs to include a 

reference to ‘‘or maintenance’’ of a 

standard, instead of just ‘‘attainment of 

a standard.’’ 

Third, for sources subject to ADEQ’s 

registration program at R18–2–302.01, 

ADEQ has not demonstrated that its 

NSR program meets the requirement to 

ensure that sources subject to NSR 

review comply with the applicable 

portions of the control strategy as 

required by 40 CFR 51.160(b)(1). 

Fourth, ADEQ’s registration program 

in R18–2–302.01 does not contain 

enforceable procedures for the owner or 

operator to submit the necessary 

information for ADEQ to determine 

whether a source will violate the 

applicable control strategy or interfere 

with attainment or maintenance of the 

NAAQS as required by 40 CFR 

51.160(c). R18–2–302.01(A)(3) requires 

applicants to calculate a source’s 

uncontrolled potential to emit, but then 

references provisions in another rule, 

R18–2–327(C), that are used to calculate 

‘‘actual’’ emissions. As such, ADEQ’s 

program contains conflicting procedures 

for calculating potential emissions. In 

addition, rule R18–2–327, is not in the 

Arizona SIP, and has not been 

submitted to EPA for SIP approval. 

Fifth, ADEQ’s program does not meet 

the requirement that the applicant 

submit information related to the nature 

and amounts of emissions, for certain 

kinds of emissions units as required by 

40 CFR 51.160(c)(1). For Class I and 

Class II permits, R18–2–304(E)(9) allows 

sources to avoid providing emission 

information for ‘‘insignificant 

activities,’’ as defined in R18–2–101(68). 

The term ‘‘insignificant activities’’ is 

generally associated with the title V 

program. Many of the activities listed in 

ADEQ’s definition of insignificant 

activity are activities that would not be 

expected to emit regulated NSR 

pollutants. However, this is not true for 

all activities, such as those listed under 

R18–2–101(68)(a–c) that include liquid 

storage tanks, combustion engines, and 

‘‘low-emitting processes.’’ 

Sixth, for sources subject to R18–2– 

302.01, ADEQ’s program does not meet 

the requirement in 40 CFR 51.160(d) 

that its procedures provide that 

approval of construction or modification 


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11ADEQ does not have jurisdiction for permitting 

of minor sources in Maricopa County, AZ. 

12See EPA’s Technical Support Document for 

Revision of Air Quality Implementation Plan; 

California; Sacramento Metropolitan Air Quality 

Management District; Stationary Source Permits, 78 

FR10589, Feb. 2, 2014, at 6–7, describing the 

thresholds applicable in Sacramento as generally 

excluding less than 5% of the emissions inventory 

except for SO2. 

13 In addressing this deficiency, ADEQ does not 

necessarily have to consider lower permitting 

exemption thresholds in nonattainment areas. For 

example, ADEQ could provide further analysis to 

demonstrate that the adopted thresholds are 

appropriate for nonattainment areas or consider a 

different approach, such as requiring minor sources 

in nonattainment areas subject to a SIP requirement 

for the nonattainment pollutant, or its precursors, 

to obtain a registration, if ADEQ can demonstrate 

that such an approach would serve to satisfy the 

requirements of 40 CFR 51.160. 

will not affect the responsibility of the 

owner or operator to comply with 

applicable portions of the control 

strategy. 

Finally, for sources subject to ADEQ’s 

registration program under R18–2– 

302.01, ADEQ’s program does not meet 

the requirement to use Appendix W to 

40 CFR part 51 for air quality modeling 

as required by 40 CFR 51.160(f)(1). 

2. ADEQ’s Program Under 40 CFR 

51.160(e) 

40 CFR 51.160(e) requires ADEQ’s 

submittal to provide a basis for the types 

and sizes of facilities, buildings, 

structures, or installations that will be 

subject to review under 40 CFR 51.160. 

Such exclusions are appropriate so long 

as such sources and modifications are 

not environmentally significant, 

consistent with the de minimis 

exemption criteria set forth in Ala. 

Power Co. v. Costle, 636 F.2d 323, at 

360–361 (D.C. Cir. 1979). Here, we 

discuss our evaluation of the basis 

provided by ADEQ for the types and 

sizes of facilities, buildings, structures 

or installations it will subject to review 

under its minor NSR program. 

Historically, ADEQ’s minor NSR 

program required permitting of minor 

sources and non-major modifications 

causing an increase in potential 

emissions of a criteria pollutant at or 

above the significant emission rates 

under the PSD program in 40 CFR 

51.166(b)(23)(i). In a May 22, 1996 letter 

to ADEQ, EPA Region 9 indicated that 

the significant emission rates used by 

ADEQ for its minor NSR permitting 

program did not represent an acceptable 

threshold for applying the basic 

preconstruction requirements for minor 

NSR purposes. To address EPA’s 

concerns, ADEQ assessed other 

potential permitting thresholds for its 

minor NSR program and selected 

revised thresholds for its minor NSR 

program following this assessment. A 

detailed analysis of ADEQ’s assessment 

is provided in our TSD. ADEQ’s new 

minor NSR program established a 

minimum preconstruction review 

threshold for new or modified stationary 

sources with potential emissions or 

emissions increases of: 50 tons per year 

(tpy) of carbon monoxide; 20 tpy of 

NOX, SO2, and VOC; 7.5 tpy for PM10; 

5 tpy for PM2.5; and 0.3 tpy for lead. We 

find ADEQ’s general approach to 

meeting 40 CFR 51.160(e) acceptable. 

We are proposing a limited disapproval 

of ADEQ’s minor NSR program based in 

part on the following issues concerning 

the approach: 

First, ADEQ’s submittal does not 

provide a clear basis for concluding that 

the exemption thresholds selected by 

ADEQ will ensure a sufficient 

percentage of minor sources are subject 

to review in nonattainment areas. As 

ADEQ points out in its submittal, 

ADEQ’s analysis is based on data for 

Maricopa County 11, which has lower 

NSR permitting thresholds than the 

exemption thresholds adopted by ADEQ 

due to Maricopa County’s local air 

quality problems. In addition, (1) some 

of the other permitting programs in 

Table 3 above have lower permitting 

thresholds in nonattainment areas than 

those applicable in attainment areas 

under their jurisdiction; (2) in looking at 

a similar analysis of minor source 

emissions for another permitting 

program in Region 9, which has local air 

quality problems, the permitting agency 

generally set thresholds that include a 

larger percentage of emissions in the 

NSR program than the percentage 

included in ADEQ’s program 12; and (3) 

typically, nonattainment areas have 

more control requirements that apply to 

smaller minor sources, as compared to 

attainment areas. As such, ADEQ’s basis 

does not clearly address how its 

adopted preconstruction review 

exemption thresholds adequately 

address nonattainment areas.13

Second, while EPA agrees that, in 

general, certain types of equipment may 

be exempted from the minor NSR 

program, ADEQ must provide a basis 

under 40 CFR 51.160(e) to demonstrate 

that regulation of the equipment 

exempted in R18–2–302(C) and A.R.S. 

§ 49–426(B) is not needed for ADEQ’s 

program to meet federal NSR 

requirements for attainment and 

maintenance of the NAAQS or review 

for compliance with the control strategy. 

Such demonstration must address: (1) 

An explanation of whether the 

regulatory exemption in R18–2–302(C) 

for ‘‘agricultural equipment used in 

normal farm operations’’ constitutes an 

interpretation or refinement of the 

exemption for such sources in A.R.S. 

§ 49–426(B), and how the two 

provisions apply to ADEQ’s NSR 

program; (2) Identification of the types 

of equipment ADEQ considers to be 

‘‘agricultural equipment used in normal 

farm operations’’ and whether this type 

of equipment could potentially be 

expected to occur at a stationary source 

subject to title V of the Act, 40 CFR 

parts 60, 61, or 63, or major NSR, and, 

if so, whether such equipment is subject 

to NSR review at such sources; (3) 

ADEQ’s basis for determining that 

‘‘agricultural equipment used in normal 

farm operations’’ does not need to be 

regulated as part of ADEQ’s minor NSR 

program under 40 CFR 51.160(e); and 

(4) ADEQ’s interpretation of the 

exemption for fuel burning equipment 

in A.R.S. § 49–426(B) and how it does, 

or does not, apply in the context of its 

major and minor NSR programs, and, to 

the extent such equipment is not subject 

to NSR review, ADEQ’s basis for 

determining that equipment exempted 

under this provision does not need to be 

reviewed as part of ADEQ’s minor NSR 

program under 40 CFR 51.160(e). 

Finally, ADEQ’s minor NSR program 

sets a permitting exemption threshold 

for PM2.5 of 5 tons per year, but ADEQ’s 

analysis does not provide a basis for this 

threshold. 

3. Public Availability of Information 

40 CFR 51.161 requires that each NSR 

program contain certain procedures 

related to public participation. We have 

identified several deficiencies with 

ADEQ’s program as it pertains to these 

requirements. 

First, ADEQ’s program does not 

ensure that NSR review for all minor 

sources regulated under ADEQ’s NSR 

program, as ADEQ defines it pursuant to 

40 CFR 51.160(e), is subject to public 

notice and comment consistent with 40 

CFR 51.161(a). 40 CFR 51.161(a) 

requires that the program under 51.160 

provide for public comment on the 

information submitted by owners or 

operators. In addition, the public 

information must include ADEQ’s 

analysis of the effects of construction or 

modification on ambient air, including 

ADEQ’s proposed approval or 

disapproval. ADEQ’s program does not 

meet this requirement because: (1) 

‘‘modification’’ of existing sources that 

become subject to the registration 

program under R18–2–302.01 (currently 

only ‘‘construction’’ of a source) are not 

subject to public notice (see R18–2– 

302.01(B)(3)); (2) R18–2–334(G) exempts 

most modifications from public notice; 

(3) R18–2–330 does not clearly define 

which public notice requirements apply 

to registrations; and (4) public 

participation does not appear to be 


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14This requirement is met for ADEQ’s registration 

program at R18–2–302.01(B)(3)(a). 

required for a proposed disapproval of 

an application for any portion of 

ADEQ’s NSR program (registration, 

minor NSR, or major NSR). 

Second, ADEQ’s registration program 

at R18–2–302.01(F) does not contain the 

necessary enforceable procedures for 

sources taking ‘‘elective limits’’ to limit 

their potential to emit in a manner that 

allows the source to avoid the public 

participation requirements in 40 CFR 

51.161(a), while otherwise being subject 

to the registration program. See R18–2– 

302.01(B)(3)(b) and R18–2–302(E)(1). 

While ADEQ’s rule contains 

requirements for monitoring, 

recordkeeping, and reporting of elective 

limits, these requirements are not 

sufficiently enforceable for purposes of 

limiting the source’s potential to emit, 

and thereby avoiding public notice, as 

well other substantive requirements of 

ADEQ’s minor NSR program when 

issuing a registration. In order to meet 

practical enforceability requirements for 

limiting the potential to emit (PTE), 

R18–2–302.01(F) must also contain (1) a 

technically accurate limitation and the 

portions of the source subject to the 

limitation and (2) the time period for the 

limitations (hourly, daily, monthly, 

etc.). Further, if the limitation is over a 

period longer than daily, R18–2– 

302.01(F) must specify when to compile 

daily records to show compliance with 

the elected limit. Additional detail on 

this issue is provided in our TSD. 

Third, ADEQ’s NSR program does not 

ensure, for all sources subject to NSR 

review, the availability for public 

inspection, in at least one location in 

the area affected, of the information 

submitted by the owner or operator and 

of ADEQ’s analysis on the effect on air 

quality as required by this federal 

regulation. R18–2–330(D)(11) requires 

the public notice to identify the nearest 

ADEQ office where documents can be 

inspected, but there are only two 

department offices for ADEQ. See 40 

CFR 51.161(b)(1). We do not interpret 

this provision as meeting the 

requirement to make information 

available in the ‘‘area affected.’’ In 

addition, the public notice requirements 

do not make reference to providing 

ADEQ’s analysis for public inspection. 

Potentially, this is covered by ‘‘all other 

materials available to the Director that 

are relevant to the permit decision’’.14

But it is not clear that ADEQ would 

interpret this to mean the Director’s own 

analysis. 

Finally, ADEQ’s NSR program does 

provide notice to the necessary parties 

in 40 CFR 51.161(d) for sources required 

to obtain registrations under R18–2– 

302.01. 

4. Administrative Procedures 

40 CFR 51.163 requires each NSR 

program to include administrative 

procedures that will be followed in 

making the determinations specified in 

40 CFR 51.160(a). While ADEQ’s 

program generally meets the 

requirements of this provision, ADEQ’s 

submittal contains references to other 

ADEQ rules, R18–2–317 and R18–2– 

317.02, which are not in the SIP and 

have not been submitted for SIP 

approval. See R18–2–306.02(D), R18–2– 

319(I), R18–2–304(J), R18–2–306(A), 

and R18–2–306.02(D). 

5. Stack Height Procedures 

40 CFR 51.164 requires that each NSR 

program contain certain provisions 

related to good engineering practice for 

stack heights. In addition to reviewing 

ADEQ’s submittal as compared with the 

NSR program requirements of 40 CFR 

51.164, we also reviewed ADEQ’s 

submittal as it relates to certain general 

SIP program requirements in 40 CFR 

51.100 and 51.118. The stack height 

provisions in the NSR program rely on 

the general stack height provisions in 40 

CFR 51.118(b), which in turn references 

the definitions in 40 CFR 51.100(hh) 

through (kk). We have identified several 

deficiencies with ADEQ’s program as it 

pertains to these requirements. 

First, ADEQ’s submittal does not meet 

the public hearing requirements in 40 

CFR 51.164 and 51.118(a). While R18– 

2–332(E) contains a reference to holding 

a public hearing, when required, the 

provision references ADEQ’s public 

hearing provision in R18–1–402. R18– 

1–402 is not in the SIP and has not been 

submitted for SIP approval. 

Second, ADEQ’s submittal does not 

contain language that meets the 

exception in 40 CFR 51.118(b): ‘‘except 

where pollutants are being emitted from 

such stacks or using such dispersion 

techniques by sources, as defined in 

section 111(a)(3) of the Clean Air Act, 

which were constructed, or 

reconstructed, or for which major 

modifications, as defined in 

§§ 51.165(a)(1)(v)(A), 51.166(b)(2)(i) and 

52.21(b)(2)(i), were carried out after 

December 31, 1970.’’ In addition, R18– 

2–332(A)(3) incorrectly references July 

1, 1975 instead of July 1, 1957 as that 

date appears in 40 CFR 51.118(b). 

Third, ADEQ’s submittal does not 

contain a requirement that owners or 

operators seeking to rely on the equation 

in 40 CFR 51.100(ii)(2)(i) produce 

evidence that the equation was actually 

relied on in establishing an emission 

limitation. See R18–2–332(B)(2). 

Finally, ADEQ’s submittal contains a 

provision at R18–2–332(D) that provides 

additional provisions for sources 

‘‘seeking credit because of plume 

impaction which results in 

concentrations in violation of national 

ambient air quality standards or 

applicable maximum allowable 

increases.’’ This provision is not 

contained in the federal regulations and 

appears to allow for the use of stack 

heights beyond GEP stack height, as 

defined in 40 CFR 51.100(ii). 

In sum, while we have identified 

several disapproval issues with ADEQ’s 

minor NSR program requirements as 

they correspond to federal minor NSR 

program requirements, compared to the 

existing SIP, approving ADEQ’s minor 

NSR program into the Arizona SIP 

nonetheless represents a significant 

overall strengthening of ADEQ’s NSR 

program, as discussed above. Thus, we 

are proposing a limited approval and 

limited approval of ADEQ’s minor NSR 

program submittal. 

C. Do the rules meet the evaluation 

criteria for Prevention of Significant 

Deterioration (PSD)? 

Part C of title I of the Act contains the 

provisions for the prevention of 

significant deterioration (PSD) of air 

quality in areas designated ‘‘attainment’’ 

or ‘‘unclassifiable’’ for the NAAQS, 

including preconstruction permit 

requirements for new major sources or 

major modifications proposing to 

construct in such areas. EPA’s 

regulations for SIP-approved PSD 

permit programs are found in 40 CFR 

51.166. 

ADEQ rules R18–2–402 and R18–2– 

406 contain the substantive 

requirements for review and permitting 

of PSD sources under ADEQ’s 

jurisdiction. These regulations satisfy 

most of the statutory and regulatory 

requirements for PSD permit programs, 

but these and other rules in the NSR SIP 

submittal contain several deficiencies 

that form the basis for our proposed 

limited disapproval, or proposed 

disapprovals as discussed below. 

Although ADEQ’s submittal meets 

most PSD program requirements, we are 

proposing to disapprove two specific 

aspects of ADEQ’s PSD program. The 

ADEQ rule provisions that we are 

proposing to disapprove are directly 

comparable to federal PSD rule 

provisions that have been vacated by 

federal courts, and we find that they are 

separable from the remainder of ADEQ’s 

PSD program. Accordingly, we find 

these provisions suitable for disapproval 

at this time. These provisions are 

described below in Sections II.C.8 and 

9. 


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15See ADEQ memo dated February 10, 2015 

related to proposed final permits, and ADEQ’s 

February 23, 2015 Supplement at 2. 

For the remainder of ADEQ’s PSD 

program submittal, we are proposing 

limited approval and limited 

disapproval. We find that approval of 

ADEQ’s updated PSD program, aside 

from the two aspects that are separable 

and will be disapproved as mentioned 

above, will substantially strengthen the 

SIP overall, particularly as the current 

SIP-approved PSD program is 

significantly out of date when compared 

with current federal PSD regulatory 

requirements as well as current State 

regulations. See our discussion in 

Section G below. However, specific 

provisions of the PSD SIP program 

submittal are inconsistent with PSD 

program requirements, and these 

deficiencies must be addressed before 

we can fully approve ADEQ’s PSD 

program. The deficiencies that we have 

identified with ADEQ’s PSD program 

that provide the basis for our limited 

disapproval are described below in 

Sections II.C.1 through 7. 

1. General PSD Program Requirements 

First, ADEQ’s submittal often refers to 

Articles 9 and/or 11 of ADEQ’s 

regulations where the federal 

regulations refer to 40 CFR parts 60, 61, 

or 63; or, similarly, sections 111 or 112 

of the Act. See R18–2–101(53)(a), 

(122)(b); R18–2–401(10); R18–2– 

402(G)(2); and R18–2–406(A)(4). 

Articles 9 and 11 are where ADEQ 

incorporates by reference the federal 

regulations in 40 CFR part 60, 61, and 

63 (which EPA implements under 

sections 111 and 112 of the Act). 

However, these Articles are not in the 

SIP, have not been submitted for SIP 

approval, and do not contain provisions 

equivalent to all of the subparts in parts 

60, 61, and 63. See 40 CFR 

51.166(b)(1)(iii)(aa), (b)(12), (b)(16)(i), 

(b)(17), (b)(47)(ii)(c), (b)(49)(ii), 

(i)(1)(ii)(aa), and (j). 

Second, ADEQ’s submittal uses the 

term ‘‘increment’’ or ‘‘incremental 

ambient standard,’’ but does not 

specifically define these terms or 

otherwise identify what is meant by 

these terms. While the PSD program 

does not specifically define the term 

‘‘increment’’ either, the term is 

introduced at 40 CFR 51.166(c)— 

Ambient air increments and other 

measures. (emphasis added) 40 CFR 

51.166(c) then goes on to identify the 

specific increment values as ‘‘maximum 

allowable increases.’’ ADEQ appears to 

have taken the approach of using the 

term ‘‘maximum allowable increase’’ to 

refer to the increments, which is 

acceptable. ADEQ adopted the 

increments, or maximum allowable 

increases, in R18–2–218—Limitation of 

Pollutants in Classified Attainment 

Areas. However, in other rules ADEQ 

uses ‘‘increment’’ or ‘‘incremental 

ambient standard’’ where it appears the 

intent is to refer to the increments 

established in R18–2–218 and identified 

in ADEQ’s rules as the ‘‘maximum 

allowable increases.’’ See R18–2–406(E), 

R18–2–412(G)(b), R18–2–101(51), R18– 

2–319, R18–2–320. 

Third, on January 15, 2013, EPA 

issued a final rule revising the NAAQS 

for PM2.5 for the annual averaging 

period, lowering the level of the 

NAAQS from 15.0 to 12.0 mg/m3, 

effective March 18, 2013 (see 78 FR 

3086). This new NAAQS is required to 

be implemented for PSD sources (unless 

otherwise grandfathered under 

provisions at 40 CFR 51.166(i)(10)) 

beginning with the effective date of the 

NAAQS. However, ADEQ’s PSD 

program does not provide for the review 

of new or modified sources for 

compliance with this new NAAQS as 

required in 40 CFR 51.166(b)(2)(iii)(i)(2), 

(b)(35), (d), (g)(3)(iii), (k), and (m)(1). 

Instead, ADEQ’s PSD program currently 

references state ambient air quality 

standards, which are set at levels that 

are equivalent to all of the current 

NAAQS, except for this newly adopted 

PM2.5 NAAQS. See R18–2–218(F)(b)(ii), 

R18–2–401(25), R18–2–406(A) and R18– 

2–407(B). Because of the general 

approach used in ADEQ’s NSR program 

with respect to incorporating the 

NAAQS, i.e., the program’s reference to 

state air quality standards instead of the 

NAAQS, any changes EPA makes to the 

NAAQS will not be included in ADEQ’s 

program until ADEQ revises its air 

quality standards rules to adopt the 

revised NAAQS as state air quality 

standards. This does not relieve any 

owner or operator from the requirement 

to comply with all NAAQS at the time 

a final PSD permit is issued, including 

the recently revised new PM2.5 NAAQS 

(unless otherwise grandfathered under 

40 CFR 51.166). See CAA section 

165(a)(3). 

Fourth, R18–2–406(A) contains a 

reference to R18–2–408, but R18–2–408 

is not in the SIP and has not been 

submitted for SIP approval. 

Fifth, ADEQ’s submittal allows a 

source at R18–2–302(G) and R18–2– 

402(C) to begin actual construction 

upon the issuance of a proposed final 

permit. As previously discussed, 

ADEQ’s program is ambiguous as to 

whether a proposed final permit, as 

defined in R18–2–101(114), constitutes 

final action by the Director. While 

ADEQ has issued guidance clarifying 

that it treats ‘‘proposed final permits’’ as 

final actions for purposes of 

preconstruction permitting 15, to obtain 

full PSD program approval, ADEQ’s 

regulations must make clear that a 

source may not begin actual 

construction before a final 

determination on a PSD permit 

application is made by the Director. 

Sixth, ADEQ’s NSR submittal 

contains provisions that allow for 

exclusions from increment 

consumption, for certain temporary 

emissions, that do not conform to the 

requirements in the analogous federal 

rule. First, ADEQ’s rule at R18–2– 

218(F)(5) requires only the ADEQ 

Director’s approval for temporary 

emissions beyond two years, but the 

federal program requirements at 40 CFR 

51.166(f)(i)(v) and 51.166(f)(4) require 

the Administrator’s approval to allow 

temporary emissions that exceed two 

years. In addition, ADEQ’s program 

language does not reference a specific 

time period beyond two years that it 

would allow for exclusions from 

increment consumption, which is not 

consistent with the federal regulation’s 

requirement at 40 CFR 51.166(f)(4) that 

the time for such exclusions be 

specified in the plan. Finally, the 

provision at R18–2–218(F)(5)(b)(ii), 

which references the state ambient air 

quality standards, must be applied to 

‘‘any’’ air quality control region. As 

currently written this provision does not 

clearly apply to areas outside of Arizona 

where Arizona’s standards would not 

generally apply. 

Seventh, ADEQ’s submittal contains a 

provision at R18–2–406(E) providing an 

exemption for certain portable 

stationary sources with a prior permit 

that contains requirements equivalent to 

the PSD requirements in 40 CFR 51.166 

(j) through (r), as allowed by 40 CFR 

51.166(i)(1)(iii). However, ADEQ’s rule 

at R18–2–406(E) is worded broadly to 

also allow an exemption for portable 

sources that have been permitted under 

Article 4 of ADEQ’s regulations, which 

also includes nonattainment NSR 

permits and PAL permits. We do not 

interpret this federal exemption as 

generally applying to such permits, as it 

is not clear that such permits contain 

requirements ‘‘equivalent’’ to those in 

40 CFR 51.166(j) through (r). 

Eight, ADEQ’s submittal contains 

conditions generally meeting the 

requirements of 40 CFR 51.166(k)(1) in 

rule R18–2–406(A)(5)(a). However, R18– 

2–406(A)(5) contains an ‘‘or’’ between 

subsections (a) and (b) that could be 

interpreted as allowing a source to 

demonstrate it will not contribute to an 


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increase above the significance levels in 

an adjacent nonattainment area in lieu 

of the demonstration required by R18– 

2–406(A)(5)(a). The provisions of 

subsection (b) relate to requirements 

under a different portion of the NSR 

program—specifically under 40 CFR 

51.165. As such, it is likely ADEQ 

would interpret subsections (a) and (b) 

as separate requirements with which a 

source must demonstrate compliance. 

Nevertheless, the potential for 

misinterpretation of this substantive 

requirement of the PSD program 

provides a basis for our limited 

disapproval of the PSD program 

submittal. In addition, R18–2– 

406(A)(5)(a) requires that a person 

applying for a PSD permit demonstrate 

that the project would not cause a 

violation of any maximum allowable 

increase over the baseline concentration 

in ‘‘any attainment or unclassifiable 

area.’’ However, ADEQ’s definition for 

‘‘attainment area’’ in the SIP at R18–2– 

101(19) limits attainment areas to those 

‘‘in the state.’’ In addition, as discussed 

previously, it is not clear that ADEQ’s 

references to the state’s ambient air 

standards would apply in areas outside 

of Arizona. 

Ninth, ADEQ’s submittal includes 

R18–2–406(A)(6)(b), which specifies 

that the use of a modified or substituted 

model must be subject to public notice 

and the opportunity for public 

comment, but neither the rule nor the 

submittal makes clear the procedures 

that would be used for notice and 

comment for this purpose or 

demonstrates that such procedures 

would be consistent with 40 CFR 

51.102, as required by 40 CFR 

51.166(l)(2). 

Tenth, ADEQ’s PSD SIP submittal 

does not appear to specifically address 

the requirements of 40 CFR 51.166(n)(1) 

and (3), which require that the SIP must 

require that (1) the owner or operator of 

a proposed source or modification shall 

submit all information necessary to 

perform any analysis or make any 

determination required under 

procedures established in accordance 

with 40 CFR 51.166, and (2) upon 

request of the state, the owner or 

operator shall also provide specified 

information concerning air quality 

impacts and growth. ADEQ’s submittal 

at R18–2–304, R18–2–402(G) and R18– 

2–407 identifies the information 

necessary for a complete application 

under this program and requires 

applicants to respond to deficiencies in 

the application, but these provisions do 

not appear to fully address the 

requirements of 40 CFR 51.166(n)(1) and 

(3). 

Eleventh, ADEQ’s submittal contains 

an apparent typographical error in R18– 

2–402(F)(1)(c), which includes a crossreference to R18–2–401(20)(b)(iii) rather 

than R18–2–401(20)(b)(iv). See 40 CFR 

51.166(r)(6). 

Finally, ADEQ’s submittal does not 

require owners or operators to make 

information required under 40 CFR 

51.166(r)(6) available for review upon 

request by the Director or the general 

public pursuant to the requirements in 

40 CFR 70.4(b)(3)(viii) as is required by 

40 CFR 51.166(r)(7). 

2. Restrictions on Area Classifications 

40 CFR 51.166(e) contains provisions 

related to restrictions on area 

classifications (Class I, II, or II). We have 

identified several deficiencies in 

ADEQ’s program with respect to these 

provisions. 

First, ADEQ’s submittal contains 

requirements for area classifications in 

R18–2–217. However, ADEQ’s submittal 

does not completely meet the 

requirements of 40 CFR 51.166(e) and 

section 162(a) of the Act, which require 

certain areas in existence on August 7, 

1977 to be designated as Class I areas. 

Such designations apply to any 

boundary changes made to those Class 

I areas after August 7, 1977. While 

ADEQ generally includes this 

requirement at R18–2–217(B), its rule 

limits such boundary changes to those 

made prior to March 12, 1993. 

Second, ADEQ’s NSR submittal at 

R18–2–217 does not contain a provision 

consistent with the federal regulatory 

requirement for Class I area 

redesignations prior to August 7, 1977 

in rule R18–2–217 or elsewhere as 

required by 40 CFR 51.166(e)(2). Even if 

it is the case that there are no areas in 

Arizona that were redesignated Class I 

prior to August 7, 1977, ADEQ’s 

program must recognize Class I area 

designations under this provision that 

may have been made in other states for 

which sources within ADEQ may have 

an impact. See 40 CFR 51.166(e)(2). 

Finally, ADEQ’s NSR submittal does 

not include a provision that is fully 

consistent with 40 CFR 51.166(e)(3). 

While ADEQ’s rules generally meet this 

requirement at R18–2–217(D), this rule 

does not fully meet the requirements of 

40 CFR 51.166(e)(3) because (1) it is not 

clear what is meant in ADEQ’s rule by 

‘‘all other areas’’ and (2) it does not 

contain a provision that ensures that 

ADEQ recognizes federal legislation that 

specified the area classification of a 

particular area. 

3. Redesignations 

40 CFR 51.166(g) contains provisions 

allowing certain areas classified as Class 

I, II, or III to be redesignated to another 

classification. We have identified 

several deficiencies in ADEQ’s program 

with these provisions. 

First, ADEQ’s submittal contains 

provisions at R18–2–217(A) identifying 

that attainment and unclassifiable areas 

in the State shall be designated as Class 

I, II, or III. However, this portion of the 

PSD program applies to all areas of the 

State. That is, all areas of the State must 

be designated as Class I, II, or III 

irrespective of their attainment 

designation under Section 107 of the 

Act. See 40 CFR 51.166(g)(1). 

Second, ADEQ’s submittal contains 

provisions at R18–2–217(E) for allowing 

the state to redesignate certain areas, but 

the submittal does not adequately meet 

the public participation requirements 

specified in the federal regulation at 40 

CFR 51.166(g)(2)(i), which requires a 

public hearing consistent with the 

procedures in 40 CFR 51.102. ADEQ’s 

redesignation provisions do not specify 

the public hearing procedures that will 

be used. See 40 CFR 51.166(g)(2)(i). 

Third, ADEQ’s provisions for 

redesignating areas to Class III do not 

clearly identify which areas may be 

designated as Class III as specified in 40 

CFR 51.166(g)(3). 

Fourth, R18–2–217(E) allows for the 

redesignation to be approved by the 

Governor or the Governor’s designee. 

However, the federal program at 40 CFR 

51.166(g)(3)(ii) specifically requires the 

Governor’s approval and does not allow 

for this approval to be delegated. See 40 

CFR 51.166(g)(3)(ii). 

Fifth, R18–2–217(F)(4) contains a 

reference to ‘‘maximum allowable 

concentration’’ which appears to refer to 

R18–2–218(E). However, R18–2–218(E) 

references the ‘‘ambient air quality 

standards in this Article.’’ The state’s 

ambient air quality standards do not 

generally apply in areas outside of 

Arizona, and ADEQ’s NSR submittal 

does not demonstrate that they would 

apply outside of Arizona for purposes of 

R18–2–217(F)(4). See 40 CFR 

51.166(g)(3)(iii). 

Finally, ADEQ’s provisions do not 

clearly require that a permit application 

that can only be approved if an area is 

redesignated to Class III, and material 

submitted as part of that application, 

must be available for public inspection 

prior to the public hearing on the 

redesignation to Class III. See 40 CFR 

51.166(g)(3)(iv). 

4. Impacts on Class I Areas 

40 CFR 51.166(p) contains additional 

requirements related to protection of 

Federal Class I areas. We have identified 

several deficiencies in ADEQ’s program 

with these provisions. 


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16See ADEQ memo dated February 10, 2015 

related to proposed final permits. ADEQ submitted 

this memo in its February 23, 2015 supplement. 

First, ADEQ’s submittal does not 

address the requirements of 40 CFR 

51.166(p)(1), but they are generally 

addressed by existing SIP requirements 

in R9–3–304(H). However, the existing 

SIP only requires application 

information to be submitted to the 

Federal Land Manager, and does not 

require that this information be 

provided to EPA as required by this 

provision. Consistent with 40 CFR 

51.166(p)(2), the Federal Land Manager 

works in consultation with EPA on the 

protection of Class I lands. 

Second, ADEQ’s submittal does not 

address the requirement under 40 CFR 

51.166(p)(3), but it is addressed by the 

existing SIP requirement in R9–3– 

304(H)(1). However, the existing SIP 

contains outdated maximum allowable 

increases that must be updated. See 40 

CFR 51.166(p)(3). 

Finally, ADEQ’s submittal generally 

includes the provisions of 40 CFR 

51.166(p)(4) at R18–2–406(F)(2), but 

contains the phrase ‘‘no significant 

adverse impacts,’’ which is inconsistent 

with the federal regulation which 

requires a demonstration of ‘‘no adverse 

impacts.’’ The addition of the word 

‘‘significant’’ is somewhat ambiguous in 

this context, but appears to allow 

variances under circumstances not 

allowed under the analogous federal 

regulation. 

5. Public Participation 

40 CFR 51.166(q) contains several 

specific public participation 

requirements for issuing PSD permits. 

We have identified several public 

participation deficiencies in ADEQ’s 

program. 

First, ADEQ’s submittal does not 

ensure that materials available during 

the public comment period are available 

in each region in which the proposed 

source would be constructed as required 

by 40 CFR 51.166(q)(2)(ii). While 

ADEQ’s program at R18–2–330(D)(11) 

requires these materials to be available 

at the nearest Department office, ADEQ 

only has two Department offices. As 

such, it is not clear that in all instances 

the public affected by a proposed 

project would have reasonable access in 

their region to the materials specified in 

40 CFR 51.166(q)(2)(ii). 

Second, ADEQ’s submittal does not 

require ADEQ to notify the public of (1) 

the degree of increment consumption 

that is expected from the source or 

modification, or (2) the Director’s 

preliminary determination, as required 

by 40 CFR 51.166(q)(2)(iii). 

Third, ADEQ’s submittal does not 

require ADEQ to make the public 

comments and the written notification 

of its final determination available in 

the same location as the preliminary 

documents as required by 40 CFR 

51.166(q)(2)(vi) and (viii). 

Finally, ADEQ’s submittal requires 

the Director to take final action on an 

application within one year of receipt of 

a complete application—R18–2– 

402(I)(3). See 40 CFR 51.166(q)(2)(vii). 

However, ADEQ’s program also 

indicates that a source may begin actual 

construction once a ‘‘proposed final 

permit’’ is obtained. See R18–2–402(C) 

and R18–2–302(G). ADEQ’s regulations 

are ambiguous as to whether a proposed 

final permit, as defined in R18–2– 

101(114), constitutes final action by the 

Director that is subject to administrative 

and/or judicial review. As EPA has 

stated previously in the context of our 

actions on other State SIP submittals, 

we interpret the CAA to require an 

opportunity for judicial review of a 

decision to grant or deny a PSD permit, 

whether issued by EPA or by a State 

under a SIP-approved or delegated PSD 

program. 77 FR 65305, 65306, Oct. 26, 

2012 (EPA’s approval of the San Joaquin 

Valley Unified Air Pollution Control 

District’s PSD program into the 

California SIP); see also 61 FR 1880, 

1882. Jan. 24, 1996 (EPA’s proposed 

disapproval of Virginia’s PSD program 

SIP revision due to State law standing 

requirements that limited judicial 

review); 72 FR 72617, 72619, Dec. 21, 

2007 (in approving South Dakota’s PSD 

program, EPA stated that it interprets 

the CAA and regulations to require at 

minimum an opportunity for state 

judicial review of PSD permits). EPA 

continues to interpret the relevant 

provisions of the Act as described in 

these prior rulemaking actions. While 

ADEQ has issued guidance clarifying 

that it treats ‘‘proposed final permits’’ as 

‘‘appealable agency actions,’’ under 

Arizona law,16 in order to obtain full 

PSD program approval, ADEQ’s 

regulations must make clear that a 

source may not begin actual 

construction before a final 

determination on a PSD permit 

application is made by the Director, 

which would be subject to 

administrative and/or judicial review. 

6. Plantwide Applicability Limits 

ADEQ’s rules contain provisions for 

using plantwide applicability limits 

(PALs) in R18–2–412. We have 

identified the following deficiencies 

with ADEQ’s PALs provisions program 

as they relate to the PSD program. 

First, neither the ADEQ regulatory 

provisions for PALs at R18–2–412 nor 

the ADEQ regulatory definitions in R18– 

2–401 that apply in the context of major 

sources and major modifications contain 

a definition for major emissions unit as 

is required by 40 CFR 51.166(w)(2)(iv). 

(This term is also not included in the 

definitions at R18–2–101 or R18–2–301 

that ADEQ submitted for approval as 

part of this action.) 

Second, ADEQ’s PAL provision for 

calculating baseline emissions at R18– 

2–412(B)(2) does not specify that 

baseline actual emissions are to include 

emissions associated not only with 

operation of the unit, but also emissions 

associated with startup, shutdown and 

malfunction, as is required by 40 CFR 

51.166(w)(3)(ii). 

Third, ADEQ’s PAL provisions at 

R18–2–412(H) contain an incorrect 

reference to (H)(4) instead of the 

definition for major modification, and 

R18–2–412(H)(5) uses ‘‘eliminated’’ 

where the federal regulation uses 

‘‘established.’’ See 40 CFR 51.166(w)(9). 

Finally, ADEQ’s PAL renewal 

provisions at R18–2–412(I)(1) must 

contain a reference to subsection (D) of 

R18–2–412 instead of (F). In addition, 

R18–2-(I)(4)(a) must reference 

subsection (E) of R18–2–412. See 40 

CFR 51.166(w)(10). 

7. Definitions 

ADEQ’s submittal contains definitions 

applicable to the PSD program that do 

not fully meet the requirements of 40 

CFR 51.166(b)(1), which requires each 

State plan to contain specific definitions 

for the PSD program. Deviations from 

the wording are approvable if the State 

specifically demonstrates that the 

submitted definition is more stringent, 

or at least as stringent, in all respects as 

the corresponding definition in 40 CFR 

51.166(b). We have carefully reviewed 

the definitions used in ADEQ’s PSD 

program as compared with the federal 

PSD definitions in 40 CFR 51.166(b) and 

have found that, generally, ADEQ’s 

submittal contains the definitions 

necessary to implement a PSD program. 

However, a number of ADEQ’s 

definitions do not meet the 

requirements of 40 CFR 51.166(b)(1) 

because their wording deviates from the 

wording in the corresponding federal 

regulatory definitions in 40 CFR 

51.166(b)(1) in a manner that may be 

less stringent than the federal 

definitions, and the State has not 

demonstrated otherwise. 

Major stationary source at 40 CFR 

51.166(b)(1)—language from 

subparagraph 40 CFR 51.166(b)(1)(i)(c) 

not included in the definition at R18– 

2–101(75). See also discussion below of 

the definition of ‘‘stationary source’’ in 

40 CFR 51.166(b)(5). 


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17ADEQ is currently subject to a Federal 

Implementation Plan under the PSD program for 

GHGs because ADEQ did not adopt a PSD program 

for the regulation of GHGs. See 40 CFR 52.37. 

ADEQ’s NSR SIP submittal does not attempt to 

correct this program deficiency, as regulation of 

GHG emissions currently is not permitted under 

State law. See A.R.S. § 49–191. 

Net emissions increase at 40 CFR 

51.166(b)(3)—ADEQ’s definition at R18– 

2–101(87)(c) identifies that an increase 

or decrease in actual emissions is 

creditable only to the extent that the 

Director has not relied on it in issuing 

a permit. However, this definition is 

broader than the definition in the PSD 

program, which only specifies that the 

reviewing authority has not relied on 

the increase or decrease in issuing a 

PSD permit. In some respects this makes 

ADEQ’s definition more stringent 

(decreases), but in other respects less 

stringent (increases). In addition, the 

equivalent of paragraph 40 CFR 

51.166(b)(3)(viii) is not included in 

ADEQ’s definition at R18–2–101(87). 

Stationary source at 40 CFR 

51.166(b)(5)—the federal regulation at 

40 CFR 51.166(b)(5) defines this term as 

‘‘any building, structure, facility or 

installation which emits or may emit a 

regulated NSR pollutant,’’ with 

‘‘regulated NSR pollutant’’ also being a 

federally defined term at 40 CFR 

51.166(b)(49), whereas ADEQ’s 

regulation at R18–2–101(39) defines 

‘‘stationary source’’ as ‘‘any building, 

structure, facility or installation subject 

to regulation pursuant to A.R.S. § 49– 

426(A) which emits or may emit any air 

pollutant,’’ with ‘‘air pollutant’’ being 

an undefined term in ADEQ’s 

regulation. We note that A.R.S. § 49– 

426(A) provides a cross-reference to 

certain exemptions from permitting 

identified in A.R.S. § 49–426(B), 

specifically agricultural equipment used 

in normal farm operations and certain 

fuel burning equipment, which do not 

appear to be consistent with the federal 

PSD definition. The federal definition 

for stationary source is very broad and 

does not exclude these source 

categories. We agree that it is acceptable 

for ADEQ to limit its NSR program to 

certain kinds of stationary sources, as 

specified in 40 CFR 51.160(e), but the 

federal definition for a stationary source 

in the context of the PSD program is not 

the appropriate place for such an 

exclusion, as it does not allow 

exclusions for certain source categories. 

Major source baseline date at 40 CFR 

51.166(b)(14)—language equivalent to 

paragraph 40 CFR 51.166(b)(14)(iv) is 

not included at ADEQ’s definition in 

R18–2–218(B)(1). 

Baseline area 40 CFR 51.166(b)(15)— 

ADEQ’s definition at R18–2–218(D) 

contains an incorrect reference to R18– 

2–217 rather than referring to section 

107(d)(1)(A)(ii) or (iii) of the Act or the 

equivalent; also, language equivalent to 

that in paragraph 40 CFR 

51.166(b)(15)(iii) is not included. 

Allowable emissions at 40 CFR 

51.166(b)(16)—ADEQ’s definition at 

R18–2–101(13)(b) does not include the 

‘‘future compliance date’’ language that 

is in 40 CFR 51.166(b)(16)(ii) and ADEQ 

has not demonstrated that its regulatory 

language is at least as stringent as the 

federal definition. 

Federally enforceable at 40 CFR 

51.166(b)(17)—ADEQ’s definition at 

R18–2–101(53)(d) identifies that 

requirements included in permits 

pursuant to R18–2–306.01 or R18–2– 

306.02 are included in the definition of 

federally enforceable requirements, but 

excludes those requirements that are 

identified as ‘‘enforceable only by the 

state.’’ With this action, we approving 

R18–2–306.01 and R18–2–306.02 into 

the SIP, making requirements pursuant 

to these rules federally enforceable. As 

such, ADEQ does not have the 

discretion to identify some of those 

requirements as only enforceable by the 

state. 

Complete at 40 CFR 51.166(b)(22)— 

ADEQ’s definition at R18–2–401(4) is 

missing the second sentence of the 

federal definition. 

Significant at 40 CFR 51.166(b)(23)– 

ADEQ definition at R18–2–101(130)(e) 

uses ‘‘milligrams’’ instead of 

‘‘micrograms’’ as required in paragraph 

40 CFR 51.166(b)(23)(iii). 

Projected actual emissions at 40 CFR 

51.166(b)(40)—ADEQ’s definition at 

R18–2–401(20)(b)(iii) does not 

specifically require inclusion of 

emissions from malfunctions in the 

determination of projected actual 

emissions, and exempts emissions from 

a shutdown associated with a 

malfunction from such determination, 

while the federal definition at 40 CFR 

51.166(b)(40)(ii)(b) requires that 

emissions from both shutdowns and 

malfunctions be included. 

Subject to regulation at 40 CFR 

51.166(b)(48)—this definition is not 

included in ADEQ’s NSR SIP submittal. 

ADEQ did not adopt a definition for the 

term ‘‘subject to regulation’’ or include 

such definition as part of the NSR SIP 

submittal, presumably because the 

federal definition of the term contains 

the requirements of the Greenhouse Gas 

(GHG) Tailoring Rule, and GHGs cannot 

be regulated under Arizona state law.17

We note, however, that while the GHG 

program requirements are contained as 

part of the definition of the term 

‘‘subject to regulation,’’ the federal 

definition of this term also contains 

non-GHG-specific program elements for 

determining when a pollutant is 

‘‘subject to regulation.’’ As such, ADEQ 

must add a definition to its PSD 

regulations to address these elements of 

the term ‘‘subject to regulation’’ in order 

to obtain full program approval. 

Regulated NSR pollutant at 40 CFR 

51.166(b)(49)—ADEQ’s regulatory 

definition at R18–2–101(122) does not 

include the final two sentences of 40 

CFR 51.166(b)(49)(i)(a)or the language at 

40 CFR 51.166(b)(49)(iv); ADEQ’s 

definition also includes an incorrect 

cross-reference to hazardous air 

pollutants listed under R18–2–1101 that 

is not consistent with the requirements 

in 40 CFR 51.166(b)(49)(v); and ADEQ’s 

regulatory definition needs to update 

the July 1, 2010 date in the crossreference to CAA section 108. 

8. PM2.5 Significant Monitoring 

Concentration 

On January 22, 2013, the U.S. DC 

Circuit Court of Appeals in Sierra Club 

v. EPA, 705 F.3d 458, vacated the parts 

of two federal PSD rules (40 CFR 

51.166(i)(5)(i)(c) and 40 CFR 

52.21(i)(5)(i)(c)) establishing a PM2.5

significant monitoring concentration 

(SMC), finding that EPA was precluded 

from using the PM2.5 SMC to exempt 

permit applicants from the statutory 

requirement to compile and submit 

preconstruction monitoring data as part 

of a complete PSD application. On 

December 9, 2013, revisions to 40 CFR 

51.166 and 52.21 were published in the 

Federal Register to remove these 

vacated rule elements, effective as of 

that date. See 78 FR 73698. 

ADEQ’s submittal at R18–2– 

407(H)(1)(c) contains the equivalent of 

the PM2.5 SMC that was vacated by the 

Court of Appeals and which has been 

removed from the federal PSD 

regulations. As the Court of Appeals 

found application of this SMC 

impermissible, and because ADEQ’s 

regulation incorporating this SMC is a 

separable portion of ADEQ’s PSD 

program, we are proposing a partial 

disapproval of ADEQ’s submitted PSD 

program, to disapprove R18–2– 

407(H)(1)(c). 

9. Definition for Basic Design Parameter 

ADEQ’s submittal contains a 

definition for basic design parameter at 

R18–2–401(3) that reflects the definition 

that EPA originally developed as part of 

its Equipment Replacement Provisions. 

See 68 FR 61248 Oct. 27, 2003. 

However, the definition for basic design 

parameter, and other elements related to 

the Equipment Replacement Provisions, 

were vacated by the DC Circuit Court of 

Appeals in State of New York v. EPA, 


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18For one other aspect of ADEQ’s NA–NSR SIP 

submittal, we are proposing limited approval at this 

time. We cannot determine at this time whether 

ADEQ’s NA–NSR SIP submittal adequately 

addresses all of elements necessary to satisfy the 

CAA’s title I, part D, subpart 4 requirements 

regarding NSR permitting of PM2.5 and PM10

precursors under CAA section 189(e). This issue is 

discussed in detail in Section II.D.5 below. 

19See ADEQ Memo dated February 10, 2015 

related to proposed final permits and ADEQ’s 

February 23, 2015 Supplement at 2. 

443 F.3d 880 (D.C. Cir. 2006). While the 

federal PSD regulations still contain a 

reference to ‘‘basic design parameter,’’ 

this term is no longer specifically 

defined under the federal PSD 

regulations, and application of the 

definition contained in the Equipment 

Replacement Provisions that were 

vacated by the Court of Appeals is 

inconsistent with federal PSD 

requirements. As the Court of Appeals 

found this Equipment Replacement 

Provisions and, therefore, this 

definition, impermissible, and because 

ADEQ’s regulation incorporating this 

definition is a separable portion of 

ADEQ’s PSD program, we are proposing 

a partial disapproval of ADEQ’s 

submitted PSD program, to disapprove 

R18–2–401(3). 

D. Do the rules meet the evaluation 

criteria for Nonattainment New Source 

Review? 

Part D of title I of the Act contains the 

general requirements for areas 

designated ‘‘nonattainment’’ for the 

NAAQS, including preconstruction 

permit requirements for new major 

sources or major modifications 

proposing to construct in such 

nonattainment areas, commonly referred 

to as ‘‘Nonattainment New Source 

Review’’ or ‘‘NA–NSR.’’ EPA’s 

regulations for NA–NSR permit 

programs are found in 40 CFR 51.165. 

Most areas under ADEQ’s jurisdiction 

are currently designated as ‘‘attainment’’ 

or ‘‘unclassifiable/attainment’’ for all 

NAAQS pollutants. However, there are 

some areas under ADEQ’s jurisdiction 

that are nonattainment and warrant a 

NA–NSR program. See 40 CFR 81.303. 

R18–2–402 through 405 contain the 

substantive NA–NSR requirements for 

review and permitting of major sources 

and major modifications in 

nonattainment areas under ADEQ 

jurisdiction in Arizona. These 

regulations satisfy most of the statutory 

and regulatory requirements for NA– 

NSR permit programs, but these rules 

contain several deficiencies that that do 

not allow us to fully approve the NA– 

NSR program submittal that is the 

subject of this action, as discussed 

below. 

Although ADEQ’s NA–NSR program 

submittal meets most NA–NSR program 

requirements, we are proposing to 

disapprove one specific aspect of 

ADEQ’s NA–NSR program relating to 

the definition of ‘‘basic design 

parameter.’’ The ADEQ rule provision 

that we are proposing to disapprove is 

directly comparable to a federal NA– 

NSR rule provision that has been 

vacated by a federal court, and we find 

that it is separable from the remainder 

of ADEQ’s NA–NSR program. 

Accordingly, we find this provision 

suitable for disapproval at this time. 

This issue is described in more detail 

below in Section II.D.4. 

For most of the remainder of ADEQ’s 

NA–NSR program submittal, we are 

proposing limited approval and limited 

disapproval. We find that approval of 

ADEQ’s updated NA–NSR program, 

aside from the aspect that is separable 

and is proposed for disapproval as 

mentioned above, will substantially 

strengthen the SIP overall, particularly 

as the current SIP-approved NA–NSR 

program is significantly out of date 

when compared with current federal 

NA–NSR regulatory requirements as 

well as current State regulations. See 

our discussion in Section G below. 

However, specific provisions of the NA– 

NSR SIP program submittal are 

inconsistent with NA–NSR program 

requirements, and these deficiencies 

must be addressed before we can fully 

approve ADEQ’s NA–NSR program into 

the SIP. The deficiencies that we have 

identified with ADEQ’s NA–NSR 

program that provide the basis for our 

limited approval and limited 

disapproval are described immediately 

below in Sections II.D.1 through 3.18

1. General Nonattainment NSR Program 

Requirements 

First, as discussed above with respect 

to ADEQ’s PSD program submittal, 

ADEQ’s NA–NSR program submittal 

often refers to Articles 9 and/or 11 of 

ADEQ’s regulations where the federal 

regulations refer to 40 CFR parts 60, 61, 

or 63; or, similarly, sections 111 or 112 

of the Act. See R18–2–101(122)(b); R18– 

2–401(10); R18–2–402(G)(2); and R18– 

2–406(A)(4). Articles 9 and 11 are where 

ADEQ incorporates by reference the 

federal regulations in 40 CFR parts 60, 

61, and 63 (which EPA implements 

under sections 111 and 112 of the Act). 

However, these Articles are not in the 

SIP, have not been submitted for SIP 

approval, and do not necessarily contain 

provisions equivalent to all of the 

subparts in parts 60, 61, and 63. See 40 

CFR 51.165(a)(1)(xiii)—lowest 

achievable emission rate, 

(a)(1)(xxxvii)—regulated NSR pollutant, 

and (a)(1)(xl)—best available control 

technology. 

Second, the nonattainment NSR 

program requirements at 40 CFR 

51.165(a)(2) require each plan to have a 

preconstruction review program to 

satisfy the requirements of sections 

172(c) and 173 of the Act. However, as 

previously discussed in this preamble, 

ADEQ’s submittal allows a source at 

R18–2–302(G) and R18–2–402(C) to 

begin actual construction upon the 

issuance of a proposed final permit. 

ADEQ’s program is ambiguous as to 

whether a proposed final permit, as 

defined in R18–2–101(114), constitutes 

final action by the Director. While 

ADEQ has issued guidance clarifying 

that it treats ‘‘proposed final permits’’ as 

final actions for purposes of 

preconstruction permitting,19 to obtain 

full NA–NSR program approval, ADEQ’s 

regulations must make clear that a 

source may not begin actual 

construction before a final 

determination on an NA–NSR permit 

application is made by the Director. 

Third, 40 CFR 51.165(a)(3)(ii)(G) 

requires that credit for emission 

reductions can be claimed only to the 

extent that the reviewing authority has 

not relied on it in issuing any permit 

under regulations approved pursuant to 

40 CFR 51 subpart I or the State has not 

relied on it in demonstration of 

attainment or reasonable further 

progress. ADEQ’s NSR submittal 

generally addresses this requirement at 

R18–2–404(H), but also needs to include 

references to rules R18–2–302.01 and 

R18–2–334, which are to be approved as 

part of ADEQ’s NSR regulations under 

Subpart I. 

Fourth, ADEQ’s submittal contains an 

apparent typographical error in R18–2– 

402(F)(1)(c), which includes a crossreference to R18–2–401(20)(b)(iii) rather 

than R18–2–401(20)(b)(iv). This error 

must be corrected to ensure that the 

requirement in 40 CFR 51.165(a)(6)(i)(c) 

for owners and operators to document 

and maintain a record of certain 

applicability-related information is 

satisfied. 

Fifth, ADEQ’s submittal does not 

require owners or operators to make 

information required under 40 CFR 

51.165(a)(6) available for review upon 

request by the Director or the general 

public pursuant to the requirements in 

40 CFR 70.4(b)(3)(viii) as is required by 

40 CFR 51.165(a)(7). 

Sixth, 40 CFR 51.165(a)(9)(i) requires 

that increases in emissions shall be 

offset by reductions in emissions using 

a ratio of emission decreases to emission 

increases of at least 1 to 1. ADEQ’s NA– 

NSR submittal contains this 

requirement at R18–2–404(A), but could 


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be interpreted as establishing the ratio 

as increases to decreases, instead of 

decreases to increases—‘‘emission 

increases shall be offset by emission 

decreases at a ratio of at least 1 to 1.’’ 

In addition, R18–2–404(A) refers to 

additional offset requirements in R18– 

2–405, but does not refer to the offset 

requirement in R18–2–404(J). 

Seventh, 40 CFR 51.165(a)(11) 

requires emission offsets to be obtained 

for the same regulated NSR pollutant, 

unless interprecursor offsetting is 

permitted for a particular pollutant, as 

further specified in the rule. ADEQ’s 

NA–NSR SIP submittal does not address 

interprecursor offsets, and it is not 

required to, but the submittal does not 

contain a specific requirement that 

offsets must be for the same regulated 

pollutant. 

Eighth, 40 CFR 51.165(b) requires that 

ADEQ have a preconstruction program 

that satisfies the requirements of section 

110(a)(2)(D)(i) of the Act for any new 

major stationary source or major 

modification that would locate in an 

attainment area, but would cause or 

contribute to a violation of a NAAQS in 

any adjacent area. ADEQ’s program 

contains provisions for 40 CFR 

51.165(b) at R18–2–406(A)(5)(a)–(b) that 

generally meet this requirement. 

However, ADEQ’s regulations at R18–2– 

406(A)(5)(b) refer to the ‘‘Arizona 

primary or secondary ambient air 

quality standards,’’ which is not a 

defined term, whereas the analogous 

federal program provisions refer to the 

NAAQS. As a result, ADEQ’s program 

does not fully meet the requirements in 

40 CFR 51.165(b)(1) and (2) as ADEQ’s 

regulations do not make clear which 

standards are being referred to, and the 

submittal does not demonstrate that 

such standards would apply to areas 

outside of Arizona for purposes of 

ADEQ’s NSR review. Similarly, ADEQ’s 

regulation at R18–2–406(A)(5)(a) 

references the state’s ambient air quality 

standards in Article 2, which would not 

clearly apply to areas outside of 

Arizona. 

Finally, Section 173(a)(4) of the Act 

requires that NA–NSR permit programs 

shall provide that permits to construct 

and operate may be issued if ‘‘the 

Administrator has not determined that 

the applicable implementation plan is 

not being adequately implemented for 

the nonattainment area in which the 

proposed source is to be constructed or 

modified.’’ However, ADEQ’s program 

does not contain a provision that would 

prohibit the issuance of NA–NSR 

permits in areas where the 

Administrator has made this 

determination or that requires that 

ADEQ conduct a review to ensure that 

this requirement is met. To obtain full 

program approval, ADEQ must add a 

provision to its NA–NSR program 

requirements that ensures compliance 

with CAA section 173(a)(4). 

2. Plantwide Applicability Limits 

ADEQ’s rules contain provisions for 

using plantwide applicability limits 

(PALs) in R18–2–412. We have 

identified the following deficiencies 

with ADEQ’s PALs provisions program 

as they relate to the NA–NSR program. 

First, ADEQ’s provision for PALs does 

not specify that modifications under a 

PAL do not need approval through the 

nonattainment major NSR program. 

Only the PSD program is mentioned. 

ADEQ’s submittal does not contain a 

definition for nonattainment major NSR 

program (see 40 CFR 51.165(a)(1)(xxx)). 

ADEQ should either add this definition 

or considering referencing R18–2–403. 

See 40 CFR 51.165(f)(1)(iii)(B). 

Second, neither the ADEQ regulatory 

provisions for PALs at R18–2–412 nor 

the ADEQ regulatory definitions in R18– 

2–401 that apply in the context of major 

sources and major modifications contain 

a definition for major emissions unit as 

is required by 40 CFR 51.165(f)(2)(iv). 

Third, ADEQ’s PAL provision for 

calculating baseline emissions at R18– 

2–412(B)(2) does not specify that 

baseline actual emissions are to include 

emissions associated not only with 

operation of the unit, but also emissions 

associated with startup, shutdown and 

malfunction, as is required by 40 CFR 

51.165(f)(3)(ii). 

Fourth, ADEQ’s PAL provisions at 

R18–2–412(H) contain an incorrect 

reference to R18–2–412(H)(4) instead of 

the definition for major modification, 

and R18–2–412(H)(5) uses ‘‘eliminated’’ 

where the federal regulation uses 

‘‘established.’’ See 40 CFR 51.165(f)(9). 

Finally, ADEQ’s program contains 

incorrect cross-references in meeting the 

requirements of 40 CFR 51.165(f)(1), as 

follows: ADEQ’s PAL renewal 

provisions at R18–2–412(I)(1) must 

contain a reference to subsection (D) of 

R18–2–412 instead of (F), and R18–2– 

(I)(4)(a) must reference subsection (E) of 

R18–2–412. 

3. Definitions 

ADEQ’s submittal contains definitions 

applicable to the nonattainment NSR 

program that do not fully meet the 

requirements of 40 CFR 51.165(a)(1), 

which requires each State plan to 

contain specific definitions for the 

nonattainment NSR program. Deviations 

from the wording are approvable if the 

State specifically demonstrates that the 

submitted definition is more stringent, 

or at least as stringent, in all respects as 

the corresponding definition in 40 CFR 

51.165(a)(1). We have carefully 

reviewed the definitions used in 

ADEQ’s nonattainment NSR program as 

compared with the federal PSD 

definitions in 40 CFR 51.165(a)(1) and 

have found that generally, ADEQ’s 

submittal contains the definitions 

necessary to implement a NA–NSR 

program. However, a number of ADEQ’s 

definitions do not meet the 

requirements of 40 CFR 51.165(a)(1) 

because their wording deviates from the 

wording in the corresponding federal 

regulatory definitions in 40 CFR 

51.165(a)(1) in a manner that may be 

less stringent than the federal 

definitions, and the State has not 

demonstrated otherwise. 

Stationary source at 40 CFR 

51.165(a)(1)(i)—the federal regulation at 

40 CFR 51.165(a)(1)(i) defines this term 

as ‘‘any building, structure, facility or 

installation which emits or may emit a 

regulated NSR pollutant,’’ with 

‘‘regulated NSR pollutant’’ also being a 

federally defined term at 40 CFR 

51.165(a)(1)(xxxvii), whereas ADEQ’s 

regulation at R18–2–101(139) defines 

‘‘stationary source’’ as ‘‘any building, 

structure, facility or installation subject 

to regulation pursuant to A.R.S. § 49– 

426(A) which emits or may emit any air 

pollutant,’’ with ‘‘air pollutant’’ being 

an undefined term in ADEQ’s 

regulation. However, A.R.S. § 49–426(A) 

provides a cross-reference to certain 

exemptions from permitting identified 

in A.R.S. § 49–426(B), specifically 

agricultural equipment used in normal 

farm operations and certain fuel burning 

equipment, which do not appear to be 

consistent with federal NA–NSR 

definition. The federal definition of 

stationary source at 40 CFR 

51.165(a)(1)(i) is very broad and does 

not exclude these source categories from 

the definition. We agree that it is 

acceptable for ADEQ to limit its NSR 

program to certain kinds of stationary 

sources, as discussed in detail above 

with respect to 40 CFR 51.160(e), but 

the federal definition for a stationary 

source in the context of the major NA– 

NSR program is not the appropriate 

place for such an exclusion, as it does 

not allow exclusions for certain source 

categories. ADEQ must demonstrate that 

its definition of stationary source is at 

least as stringent as the federal 

definition at 40 CFR 51.165(a)(1)(i) in all 

respects. 

Major stationary source at 40 CFR 

51.165(a)(1)(iv)—language from 

subparagraph 40 CFR 

51.165(a)(1)(iv)(A)(3) not included in 

the definition at R18–2–101(75); also see 

comments above on definition of 


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20 706 F.3d 428 (D.C. Cir. 2013). 

21 73 FR 28321 May 16, 2008. 

‘‘stationary source’’ in 40 CFR 

51.165(a)(1)(i). 

Net emissions increase at 40 CFR 

51.165(a)(1)(vi)—The requirement of 

paragraph 40 CFR 51.165(a)(1)(vi)(E)(3) 

is not met because not all requirements 

to be approved under subpart I are listed 

(i.e., R18–2–302.01) in the definition at 

R18–2–101(87). In addition, the 

equivalent of paragraph 40 CFR 

51.165(a)(1)(vi)(G) is not included in 

ADEQ’s definition at R18–2–101(87). 

Significant at 40 CFR 51.165(a)(1)(x)— 

ADEQ’s definition at R18–2–101(130)(b) 

refers to R18–2–405 for determining 

significant emissions in serious and 

severe ozone nonattainment areas. The 

definition for ‘‘significant’’ at R18–2– 

405(B) does not use the term ‘‘net 

emissions increase,’’ which is a term 

defined by the federal regulations at 40 

CFR 51.165(a)(1)(vi). 

Allowable emissions at 40 CFR 

51.165(a)(1)(xi)—ADEQ’s definition at 

R18–2–101(13)(b) does not include the 

‘‘future compliance date’’ language that 

is in 40 CFR 51.165(a)(1)(xi)(B) and (C) 

and ADEQ has not demonstrated that its 

regulatory language is at least as 

stringent as the federal definition. 

Federally enforceable at 40 CFR 

51.165(a)(1)(xiv)—ADEQ’s definition at 

R18–2–101(53)(d) identifies that 

requirements included in permits 

pursuant to R18–2–306.01 or R18–2– 

306.02 are included in the definition of 

federally enforceable requirements, but 

excludes those requirements that are 

identified as ‘‘enforceable only by the 

state.’’ With this action, we are 

approving R18–2–306.01 and R18–2– 

306.02 into the SIP, making 

requirements pursuant to these rules 

federally enforceable. As such, ADEQ 

does not have the discretion to identify 

some of those requirements as only 

enforceable by the state. 

Regulated NSR pollutant at 40 CFR 

51.165(a)(1)(xxxvii)—ADEQ’s definition 

is missing this language from paragraph 

40 CFR 51.165(a)(1)(xxxvii)(C): 

‘‘provided that such constituent or 

precursor pollutant may only be 

regulated under NSR as part of 

regulation of the general pollutant’’ at 

R18–2–101(122)(a). 

Projected actual emissions at 40 CFR 

51.165(a)(1)(xxviii)—ADEQ’s definition 

at R18–2–401(20)(b)(iii) does not 

specifically require inclusion of 

emissions from malfunctions in the 

determination of projected actual 

emissions, and exempts emissions from 

a shutdown associated with a 

malfunction from such determination, 

while the federal definition at 40 CFR 

51.165(a)(1)(xxxvii)(C) requires that 

emissions from both shutdowns and 

malfunctions be included. 

4. Definition for Basic Design Parameter 

ADEQ’s submittal contains a 

definition for basic design parameter at 

R18–2–401(3) that reflects the definition 

that EPA originally developed as part of 

its Equipment Replacement Provisions. 

See 68 FR 61248, Oct. 27, 2003. 

However, the definition for basic design 

parameter, and other elements related to 

the Equipment Replacement Provisions, 

were vacated by the DC Circuit Court of 

Appeals in State of New York v. EPA, 

443 F.3d 880 (D.C. Cir. 2006). While the 

federal NA–NSR regulations still 

contain a reference to ‘‘basic design 

parameter,’’ this term is no longer 

specifically defined under the federal 

NA–NSR regulations, and application of 

the definition contained in the 

Equipment Replacement Provisions that 

were vacated by the Court of Appeals is 

inconsistent with federal NA–NSR 

requirements. As the Court of Appeals 

found this Equipment Replacement 

Provisions and, therefore, this 

definition, impermissible, and because 

ADEQ’s regulation incorporating this 

definition is a separable portion of 

ADEQ’s NA–NSR program, we are 

proposing a partial disapproval of 

ADEQ’s submitted NA–NSR program, to 

disapprove R18–2–401(3). 

5. Additional Provisions for Particulate 

Matter Nonattainment Areas 

On January 4, 2013, the U.S. Court of 

Appeals for the District of Columbia 

Circuit, in Natural Resources Defense 

Council v. EPA,20 issued a decision that 

remanded the EPA’s 2007 and 2008 

rules implementing the 1997 PM2.5

NAAQS. EPA’s 2008 implementation 

rule addressed by the court decision, 

‘‘Implementation of New Source Review 

(NSR) Program for Particulate Matter 

Less Than 2.5 Micrometers (PM2.5)’’ (the 

2008 NSR PM2.5 Rule),21 promulgated 

NSR requirements for implementation 

of PM2.5 in both nonattainment areas 

(under the NA–NSR program) and 

attainment/unclassifiable areas (under 

the PSD program). The Court of Appeals 

found that EPA erred in implementing 

the PM2.5 NAAQS in these rules for 

nonattainment areas solely pursuant to 

the general implementation provisions 

of subpart 1 of part D of title I of the 

CAA, rather than pursuant to the 

additional implementation provisions 

specific to particulate matter 

nonattainment areas in subpart 4. The 

Court of Appeals ordered the EPA to 

‘‘repromulgate these rules pursuant to 

Subpart 4 consistent with this opinion.’’ 

706 F.3d at 437. Although the Court of 

Appeals declined to establish a deadline 

for EPA’s response to the remand, EPA 

intends to promulgate new generally 

applicable implementation regulations 

for the PM2.5 NAAQS in accordance 

with the requirements of subpart 4. In 

the interim, however, states and EPA 

still need to proceed with 

implementation of the PM2.5 NAAQS in 

a timely and effective fashion in order 

to meet statutory obligations under the 

CAA and to assure the protection of 

public health intended by those 

NAAQS. 

ADEQ’s NSR SIP submittal generally 

includes requirements for the PM2.5

NA–NSR program consistent with the 

provisions promulgated in the 2008 

NSR PM2.5 Rule. Specifically, ADEQ’s 

NSR SIP submittal includes the PM2.5

significant emission rates at R18–2– 

101(130), regulation of certain PM2.5

precursors (SO2 and NOX) at R18–2– 

101(130), the regulation of PM10 and 

PM2.5 condensable emissions at R18–2– 

101(122)(f), and the emissions offset 

requirements at R18–2–403(A)(3). 

Separate and aside from the issues 

identified above that have resulted in 

our proposing limited approval and 

limited disapproval of ADEQ’s NA–NSR 

submittal, EPA has determined that it is 

not prepared at this time to grant full 

approval to ADEQ’s NSR SIP submittal 

as to the PM2.5 NA–NSR program 

requirements, in light of the Court’s 

remand of the 2008 NSR PM2.5 Rule, and 

for the reasons explained below. 

EPA is in the process of evaluating the 

requirements of subpart 4 as they 

pertain to NA–NSR. In particular, 

subpart 4 includes section 189(e) of the 

CAA, which requires the control of 

major stationary sources of PM10

precursors (and hence under the court 

decision, PM2.5 precursors) ‘‘except 

where the Administrator determines 

that such sources do not contribute 

significantly to PM–10 levels which 

exceed the standard in the area.’’ 

Although ADEQ’s NSR SIP submittal 

does include regulation of SO2 and NOX

as PM2.5 precursors, it does not include 

the regulation of VOCs or ammonia. Nor 

does the NSR SIP submittal include a 

demonstration as to whether or not the 

regulation of VOCs or ammonia is 

necessary under section 189(e). The 

evaluation of which precursors need to 

be controlled to achieve the standard in 

a particular area is typically conducted 

in the context of the state’s preparing 

and the EPA’s reviewing an area’s 

attainment plan SIP. In this case, there 

are two designated PM2.5 nonattainment 

areas in Arizona, the Nogales (portion of 

Santa Cruz County, AZ) and West 

Central Pinal (portion of Pinal County, 

AZ) areas. Both are designated 


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22Prior to the Court’s decision, EPA would not 

have reviewed PM2.5 attainment plan submittals for 

compliance with Section 189. 

23The rule was previously numbered R9–3–310. 

24See, e.g., ‘‘Guidance Document for Correcting 

VOC Rule Deficiencies,’’ U.S. EPA Region 9, April 

1991, revised August 21, 2001 (Little Bluebook). 

25The rule was previously numbered R9–3–312. 

26See, e.g., Little Bluebook. 

nonattainment for the 2006 annual 

PM2.5 NAAQS. However, on January 7, 

2013 and September 4, 2013, EPA 

finalized determinations of attainment 

for these areas, respectively (78 FR 887 

and 78 FR 54394), which suspended the 

requirement for the state to submit, 

among other things, an attainment plan 

SIP for the area.22 Accordingly, PM2.5

attainment plans for SIP approval are 

not currently before Region 9 for these 

areas. As Region 9 does not have before 

it the state’s analysis as to which 

precursors need to be controlled in 

these areas pursuant to section 189(e) of 

the Act, as would be generally 

contained in an attainment plan SIP, it 

cannot fully approve as complying with 

the CAA a nonattainment NSR SIP that 

only addresses a subset of the scientific 

PM2.5 precursors recognized by EPA. 

On the other hand, while ADEQ’s 

submittal may not yet contain all of the 

elements necessary to satisfy the CAA 

requirements when evaluated under 

subpart 4, the NA–NSR SIP submittal 

represents a considerable strengthening 

of the currently approved Arizona SIP, 

which does not address NSR permitting 

for PM2.5 at all. Therefore, EPA is 

proposing to grant limited approval to 

the PM2.5 NA–NSR provisions in 

ADEQ’s NSR submittal for the Nogales 

and West Central Pinal PM2.5

nonattainment areas. 

For the reasons explained above, EPA 

is not evaluating at this time whether 

ADEQ’s NA–NSR submittal will require 

additional revisions relating to PM2.5 to 

satisfy the subpart 4 requirements. Once 

EPA re-promulgates the Federal PM2.5

regulations with respect to NA–NSR 

permitting in response to the Court’s 

remand, EPA will consider whether a 

limited disapproval should also be 

proposed for ADEQ’s PM2.5 NA–NSR 

program based on this issue. 

In addition, section 189(e) of the CAA 

requires that ADEQ’s NSR program for 

PM10 nonattainment areas apply to 

major stationary sources of PM10

precursors, except where the 

Administrator determines that such 

sources do not contribute significantly 

to PM10 levels which exceed the 

standard in the area. As discussed 

below, we have identified one area 

under ADEQ’s jurisdiction, the West 

Pinal PM10 nonattainment area, for 

which we are proposing a limited 

approval with respect to PM10 under 

section 189(e) of the Act. 

On September 4, 2013, the West Pinal 

area was redesignated to nonattainment 

for the 1987 p.m.10 standard. ADEQ’s 

NSR SIP submittal generally includes 

NA–NSR requirements for PM10

nonattainment areas such as the PM10

significant emission rate at R18–2– 

101(130), the regulation of PM10 and 

PM2.5 condensable emissions at R18–2– 

101(122)(f), and the emissions offset 

requirements at R18–2–403(A)(3). 

However, separate and aside from the 

issues identified above that have 

resulted in our proposing limited 

approval and limited disapproval of 

ADEQ’s NA–NSR submittal, EPA has 

determined that it is not prepared at this 

time to grant full approval to ADEQ’s 

NSR SIP submittal as to the PM10

nonattainment NSR program 

requirements for the West Pinal 

nonattainment area. The evaluation of 

which precursors need to be controlled 

to achieve the standard in a particular 

area is typically conducted in the 

context of the state’s preparing and the 

EPA’s reviewing of an area’s attainment 

plan SIP. On February 19, 2014, ADEQ 

withdrew from EPA’s consideration the 

Arizona State Implementation Plan 

Revision for the West Pinal County PM10

Nonattainment Area (submitted on 

December 30, 2013). Accordingly, a 

PM10 attainment plan for West Pinal is 

not currently before Region 9. As such, 

Region 9 does not have before it the 

state’s analysis as to which precursors 

need to be controlled in this area 

pursuant to section 189(e) of the Act, as 

would be generally contained in an 

attainment plan SIP, and cannot fully 

approve as complying with the CAA a 

nonattainment NSR SIP that does not 

address scientific PM10 precursors 

recognized by EPA. 

While ADEQ’s submittal may not yet 

contain all of the elements necessary to 

satisfy the CAA NA–NSR requirements 

when evaluated under subpart 4, the 

proposed revisions to ADEQ’s NA–NSR 

program represent a considerable 

strengthening of the currently approved 

Arizona SIP, which does not address 

NSR requirements for PM10 at all. 

Therefore, EPA is proposing to grant 

limited approval to the PM10 NA–NSR 

provisions in ADEQ’s NSR submittal as 

they apply to the West Pinal 

nonattainment area. Once ADEQ 

submits a new PM10 attainment plan for 

this area, EPA will consider whether a 

limited disapproval should also be 

proposed based on this issue. 

E. Review of Non-NSR Related Rules 

and Statutory Provisions 

In addition to ADEQ’s NSR SIP 

submittal, we are taking action on rules 

R18–2–311 and R18–2–312. These rules 

were submitted to EPA for SIP approval 

in a separate submittal on July 28, 2011. 

We delayed acting on rules R18–2–311 

and R18–2–312 in a previous action, 

and are therefore now evaluating and 

taking action on the rules. We are also 

taking action on A.R.S. § 49–107, an 

Arizona statutory provision concerning 

local delegation of state authority. 

First, ADEQ’s rule R18–2–311 

specifies the test methods and 

procedures which can be used to 

determine compliance with 

requirements established under ADEQ’s 

air program. On October 19, 1984, EPA 

approved an earlier version of this rule 

into the SIP.23 See 49 FR 41026. The 

current submittal, adopted effective 

November 15, 1993, renumbers the 

earlier rule and expands on the previous 

version by listing additional test 

methods that may be used to determine 

compliance. While the current rule 

improves on the earlier version, we 

cannot recommend it for full approval 

into the SIP. We are proposing a limited 

disapproval because Section D of the 

rule allows the State to approve 

alternatives to the applicable SIP 

without EPA approval, in conflict with 

the requirements of CAA sections 

110(a)(2)(A) and 110(i).24

Second, ADEQ’s rule R18–2–312 

requires stationary sources to conduct a 

performance test within 60 days of 

achieving the capability to operate at its 

maximum production rate, but no later 

than 180 days after initial start-up. The 

rule also specifies that testing shall be 

conducted under such conditions 

specified by State, including, but not 

limited to appropriate test methods, 

notification to the State, data reduction, 

records, and number of test runs. On 

April 23, 1982 (47 FR 17485) EPA 

approved a version of this rule into the 

SIP.25 The current submittal, adopted 

effective November 15, 1993, renumbers 

the earlier rule and expands on the 

previous version by including 

conditions when a test may be stopped 

and allows compliance to be determined 

with continuous emission monitoring as 

long as the applicable quality assurance 

procedures are followed. While the 

current rule improves on the earlier 

version, we cannot recommend it for 

full approval into the SIP. We are 

proposing a limited disapproval because 

Section B of the rule allows the State to 

approve the use of equivalent and 

alternative test methods without EPA 

approval, in conflict with CAA sections 

110(a)(2)(A) and 110(i).26


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Third, A.R.S. § 49–107 is the current 

Arizona state law that provides ADEQ 

with authority to ‘‘delegate to a local 

environmental agency, county health 

department, public health services 

district or municipality any functions, 

powers or duties which the director 

believes can be competently, efficiently 

and properly performed by the local 

agency if the local agency accepts the 

delegation and agrees to perform the 

delegated functions, powers and duties 

according to the standards of 

performance required by law and 

prescribed by the director,’’ and other 

related authorities. This statutory 

provision establishes that ADEQ has 

clear authority to delegate various 

functions under the CAA, including 

NSR permitting, to county and other 

local government agencies and, as such, 

we find it to be approvable and propose 

to approve it into the SIP. This 

provision will replace 7–1–8.3(R9–3– 

803)—Delegation of Authority, an older 

ADEQ currently in the SIP, which we 

are proposing to remove from the SIP as 

part of this action. 

F. Review of Rules and Statutory 

Provisions Requested To Be Removed 

From the SIP 

In Table 2 of this preamble we 

identify the rules and statutory 

provisions we are proposing to remove 

or supersede from the SIP as part of this 

action. ADEQ’s existing SIP-approved 

NSR rules are generally outdated, as we 

have not acted to approve substantial 

revisions to ADEQ’s NSR rules since the 

1980s. Further, the ADEQ NSR rules 

currently in the SIP have been repealed 

for purposes of State law by ADEQ. 

Significant changes have been made to 

the Act and the underlying 

implementing federal NSR regulations 

since our last substantial action on 

ADEQ’s NSR SIP. Therefore, replacing 

the existing, outdated NSR SIP rules 

with the updated ADEQ rules in this 

submittal that we propose to approve 

into the SIP is appropriate and generally 

serves as an overall strengthening of 

Arizona’s SIP. In some cases, we 

approved updated versions of these 

rules into the SIP in previous 

rulemaking actions, and a few of the 

rules proposed for removal are no longer 

necessary for other reasons. Our TSD 

provides additional detail. 

G. Do the rules meet the evaluation 

criteria under Section 110(l) and 193 of 

the Act? 

CAA Section 110(l) states: ‘‘Each 

revision to an implementation plan 

submitted by a State under this chapter 

shall be adopted by such State after 

reasonable notice and public hearing. 

The Administrator shall not approve a 

revision of a plan if the revision would 

interfere with any applicable 

requirement concerning attainment and 

reasonable further progress (as defined 

in section 7501 of this title), or any 

other applicable requirement of this 

chapter.’’ 

With respect to the procedural 

requirements of CAA section 110(l), 

based on our review of the public 

process documentation included in the 

July 28, 2011, October 29, 2012 and July 

2, 2014 submittals, we find that ADEQ 

has provided sufficient evidence of 

public notice and opportunity for 

comment and public hearings prior to 

submittal of this SIP revision and has 

satisfied these procedural requirements 

under CAA section 110(l). 

With respect to the substantive 

requirements of section 110(l), as 

discussed further below, we have 

determined that our approval of the 

ADEQ NSR SIP Submittal and the other 

rules and statutory provisions that we 

are proposing to act on in this action 

(including but not limited to the 

rescission of numerous existing NSR SIP 

rules), as described above in this 

preamble, would strengthen the 

applicable SIP in most respects. Taken 

in its entirety, we find that the SIP 

revision represents a strengthening of 

ADEQ’s minor NSR, PSD, and NA–NSR 

programs as compared to the existing 

SIP-approved NSR program for ADEQ 

that was last substantially revised in the 

SIP in the early 1980s, and that our 

approval of this SIP submittal would not 

interfere with any applicable 

requirement concerning attainment and 

reasonable further progress (RFP) or any 

other applicable requirement of the Act. 

First, this proposed action would 

correct a number of deficiencies in 

ADEQ’s current SIP-approved NSR 

program. ADEQ’s existing SIP-approved 

program does not currently contain 

these significant program elements: (1) 

Implementation of NSR requirements 

for PM10; (2) implementation of NSR 

requirements for PM2.5; (3) regulation of 

NOX as a precursor to ozone; (4) 

inclusion of condensable particular 

matter in NSR permitting for 

determining PM10 and PM2.5 emissions; 

and (5) ensuring that the construction or 

modification of certain non-major 

sources and non-major modifications 

will (1) not interfere with attainment or 

maintenance of the NAAQS and (2) 

comply with the applicable SIP. 

Further, ADEQ has also updated its 

program to provide for additional 

permitting flexibilities that have been 

added to the federal NSR program, such 

as PALs and the 2002 NSR Reforms. 

Second, most of the deficiencies 

identified with the ADEQ rule 

provisions on which we are taking 

action fit into one of two categories: (1) 

Deficiencies that relate to an NSR 

program element that has been added 

since ADEQ’s NSR program was 

approved into the SIP (e.g., the 

deficiency related to the omission of the 

definition for major emissions unit in 

the PALs provisions), or (2) deficiencies 

that exist in the current SIP that were 

not identified as deficiencies when the 

provisions were approved into the SIP 

(e.g., ensuring protection of the NAAQS 

in areas outside of Arizona from 

stationary source emissions regulated 

under the NSR program). Therefore, in 

considering whether our proposed 

approval of the NSR SIP submittal will 

interfere with attainment or reasonable 

further progress, we only consider those 

deficiencies in the first category, as the 

deficiencies in the second category are 

already a part of the current applicable 

requirements for attainment and RFP in 

the Arizona SIP. In many cases, the 

deficiencies in the second category 

occurred because of the numerous 

changes to the NSR program since 

ADEQ’s NSR rules were last approved 

into the SIP. That is, language that may 

have been approvable previously is no 

longer approvable. 

The most significant deficiency that 

we have identified, as discussed in 

detail above in this notice, is the 

absence of provisions that ensure 

protection of the 2012 PM2.5 NAAQS for 

the PSD program. This deficiency is the 

most likely to affect the substantive 

requirements of the overall application 

of the PSD program, compared to other 

deficiencies that we do not expect 

would significantly affect the review of 

emission impacts (e.g., administrative 

requirements for permit issuance). 

However, the 2012 PM2.5 NAAQS came 

into effect after ADEQ submitted the 

NSR SIP submittal to EPA. In addition, 

although such standard is currently 

applicable in the context of the PSD 

program, the implementation 

requirements for this standard are not 

due until 2016. Accordingly, there are 

no applicable requirements in the 

existing ADEQ SIP-approved NSR 

program related to this NAAQS that 

would be affected by the deficiencies in 

the submitted NSR rules we are 

approving. 

In addition, ADEQ has relaxed its 

definition of ‘‘major stationary source.’’ 

ADEQ’s previous definition applied the 

PSD and NA–NSR program 

requirements to existing non-major 

sources when a project would cause 

such a stationary source to become a 

‘‘major stationary source.’’ ADEQ 


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27Our analysis and conclusion here also apply to 

our approval of R18–2–311 and R18–2–312, which 

are not generally related to NSR permitting. We 

note that these rules do not contain any substantive 

changes in the procedures for performance tests or 

test methods as compared with the analogous rules 

in the current SIP. Similarly, our analysis and 

conclusion here also extends to our approval of 

A.R.S. § 49–107 into the SIP. The provisions in this 

state statute relate specifically to local delegation of 

state authority and thus would not interfere with 

any applicable requirement concerning attainment 

and RFP or any other applicable requirement of the 

Act. 

revised its program to instead subject 

existing non-major sources to the major 

NSR program only if the project 

constitutes a ‘‘major stationary source’’ 

in and of itself, consistent with federal 

NSR program requirements. We do not 

find this relaxation to interfere with 

attainment or reasonable further 

progress because ADEQ is also 

strengthening its minor NSR program to 

address emissions from larger 

modifications that do not qualify as 

major modifications under ADEQ’s 

revised NSR program. While these 

modifications would no longer be 

subject to the major NSR program, 

ADEQ’s minor NSR program would 

nonetheless apply and ensure the 

modification does not interfere with 

attainment or RFP. 

In summary, we find that, on balance, 

the improvements ADEQ is making to 

its NSR program and other portions of 

the SIP that are the subject of this 

section outweigh the deficiencies 

discussed above as compared to ADEQ’s 

existing SIP-approved NSR program. In 

addition, we are unaware of any 

reliance by ADEQ on the continuation 

of any specific aspect of the permitrelated rules currently in the ADEQ 

portion of the Arizona SIP for the 

purpose of continued attainment or 

maintenance of the NAAQS. Given all 

these considerations, we propose to 

conclude that our approval of the ADEQ 

regulations and statute that are the 

subject of this action into the Arizona 

SIP would not interfere with any 

applicable requirement concerning 

attainment and RFP or any other 

applicable requirement of the Act.27

Conclusion. For the reasons set forth 

above, we can approve the ADEQ SIP 

revision as proposed in this action 

under section 110(l) of the Act. 

Section 193 of the Act, which was 

added by the CAA Amendments of 

1990, includes a savings clause that 

provides, in pertinent part: ‘‘No control 

requirement in effect, or required to be 

adopted by an order, settlement 

agreement, or plan in effect before 

November 15, 1990, in any area which 

is a nonattainment area for any air 

pollutant may be modified after 

November 15, 1990, in any manner 

unless the modification insures 

equivalent or greater emission 

reductions of such air pollutant.’’ 

We find that the provisions included 

in ADEQ’s NSR SIP submittal would 

ensure equivalent or greater emission 

reductions compared to the SIPapproved NSR program in the 

nonattainment areas under ADEQ’s 

jurisdiction. In particular, the NSR 

provisions in ADEQ’s NSR SIP 

submittal cover stationary sources in 

areas that are nonattainment for the 

PM10, PM2.5 and 1-hr SO2 NAAQS. 

ADEQ’s current SIP-approved NSR 

program was approved prior to EPA 

establishing these NAAQS and the 

current NSR provisions in the SIP do 

not reference the current, recently SIPapproved Arizona air quality standards 

that are comparable to these NAAQS. In 

addition, ADEQ’s updated NSR rules 

and our action to approve them into the 

SIP will expand ADEQ’s review of 

minor sources in nonattainment areas to 

require review of smaller sources. We 

therefore conclude that ADEQ’s NSR 

SIP submittal will provide for 

equivalent or greater emissions 

reductions as compared to the existing 

SIP-approved ADEQ NSR program for 

the nonattainment pollutants PM10, 

PM2.5 and SO2. 

Conclusion. For the reasons set forth 

above, we can approve the submitted 

NSR program under section 193 of the 

Act. 

H. Conclusion 

For the reasons stated above and 

explained further in our TSD, we find 

that the submitted NSR rules satisfy 

most of the applicable CAA and 

regulatory requirements for minor NSR, 

PSD, and nonattainment NSR permit 

programs under CAA section 

110(a)(2)(C) and parts C and D of title I 

of the Act but also contain certain 

deficiencies that prevent us from 

proposing a full approval of the NSR SIP 

submittal. Therefore, we are proposing a 

limited approval and limited 

disapproval of the submitted NSR rules. 

We do so based also on our finding that, 

while the rules do not meet all of the 

applicable requirements, the rules 

would represent an overall 

strengthening of the SIP by clarifying 

and enhancing the NSR permitting 

requirements for major and minor 

stationary sources under ADEQ’s 

jurisdiction in Arizona. In addition, we 

are also proposing to remove the 

existing statutes and rules listed in 

Table 2 from the SIP, which are 

outdated and mostly being superseded 

by our proposed action. As discussed 

above, we are proposing a partial 

disapproval of two elements of ADEQ’s 

program, which have been vacated from 

the PSD program (and is one case also 

from the NA–NSR program) by the 

courts. We are also proposing a limited 

approval of ADEQ’s nonattainment NSR 

program for the Nogales and West 

Central Pinal PM2.5 nonattainment areas 

and the West Pinal PM10 nonattainment 

area under section 189(e) of the Act. 

Finally, we are proposing a limited 

approval and limited disapproval of two 

ADEQ rules relating to test methods and 

procedures and performance tests, and 

proposing to approve into the SIP an 

Arizona statutory provision relating to 

local delegation of state authority. 

III. Public Comment and Proposed 

Action 

Pursuant to section 110(k) of the CAA 

and for the reasons provided above, EPA 

is proposing a limited approval and 

limited disapproval of revisions to the 

ADEQ portion of the Arizona SIP that 

govern preconstruction review and the 

issuance of preconstruction permits for 

stationary sources, including the review 

and permitting of major sources and 

major modifications under parts C and 

D of title I of the CAA. Specifically, EPA 

is proposing a limited approval and 

limited disapproval of the new and 

amended ADEQ regulations listed in 

Table 1, above, as a revision to the 

ADEQ portion of the Arizona SIP. We 

are also proposing to remove the 

existing statutes and rules listed in 

Table 2 from the SIP, which are 

outdated and mostly being superseded 

by our proposed action. In addition, we 

are also proposing to partially 

disapprove two provisions of ADEQ’s 

NSR program that have been vacated by 

the courts. We are proposing a limited 

approval of ADEQ’s nonattainment NSR 

program in certain nonattainment areas 

under section 189 of the Act related to 

PM10 and PM2.5 precursors. Finally, we 

are proposing a limited approval and 

limited disapproval of two ADEQ rules 

relating to test methods and procedures 

and performance tests, and proposing to 

approve into the SIP an Arizona 

statutory provision relating to local 

delegation of state authority. 

EPA is proposing this action because, 

although we find that the new and 

amended rules meet most of the 

applicable requirements for such permit 

programs and that the SIP revisions 

improve the existing SIP, we have found 

certain deficiencies that prevent full 

approval, as explained further in this 

preamble and in the TSD for this 

rulemaking. The intended effect of our 

proposed limited approval and limited 

disapproval action is to update the 

applicable SIP with current ADEQ 


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regulations and to set the stage for 

remedying deficiencies in these 

regulations. 

If finalized as proposed, our limited 

disapproval action would trigger an 

obligation on EPA to promulgate a 

Federal Implementation Plan unless the 

State of Arizona corrects the 

deficiencies, and EPA approves the 

related plan revisions, within two years 

of the final action. Additionally, for 

those deficiencies that relate to the 

Nonattainment NSR requirements under 

part D of title I of the Act, the offset 

sanction in CAA section 179(b)(2) 

would apply in the ADEQ 

nonattainment areas 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. The EPA intends to work 

with ADEQ to correct the deficiencies 

identified in this action in a timely 

manner. 

We will accept comments from the 

public on this proposed action for the 

next 30 days. 

IV. Incorporation by Reference 

In this rule, the EPA is proposing to 

include in a final EPA rule regulatory 

text that includes incorporation by 

reference. In accordance with 

requirements of 1 CFR 51.5, the EPA is 

proposing to incorporate by reference 

the ADEQ rules and Arizona statutory 

provisions listed in Table 1 of this 

preamble. The EPA has made, and will 

continue to make, these documents 

generally available electronically 

through www.regulations.gov and/or 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 proposed 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 of the Clean Air Act do not 

create any new requirements but simply 

approve or disapprove requirements 

that the State is already imposing. 

Therefore, because EPA’s proposed 

limited approval/limited disapproval 

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 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 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), 2 U.S.C. 

1531–1538, requires Federal agencies, 

unless otherwise prohibited by law, to 

assess the effects of their regulatory 

actions on State, local, and tribal 

governments and the private sector. 

Federal agencies must also develop a 

plan to provide notice to small 

governments that might be significantly 

or uniquely affected by any regulatory 

requirements. The plan must enable 

officials of affected small governments 

to have meaningful and timely input in 

the development of EPA regulatory 

proposals with significant Federal 

intergovernmental mandates and must 

inform, educate, and advise small 

governments on compliance with the 

regulatory requirements. 

This proposed rule 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 in any one year. Thus, 

this rule is not subject to the 

requirements of section 202 or 205 of 

UMRA. This Federal action proposes to 

approve and disapprove pre-existing 

requirements under State or local law, 

and imposes no new requirements. 

This proposed rule is also not subject 

to the requirements of section 203 of 

UMRA because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. This 

proposed rule does not impose 

regulatory requirements on any 

government entity. 

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 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. In the spirit of 

Executive Order 13132, and consistent 

with EPA policy to promote 

communications between EPA and State 

and local governments, EPA specifically 

solicits comment on this proposed 

action from State and local officials. 

F. Executive Order 13175, Coordination 

With Indian Tribal Governments 

Under Executive Order 13175 (65 FR 

67249, November 9, 2000), EPA may not 

issue a regulation that has tribal 

implications, that imposes substantial 

direct compliance costs, and that is not 

required by statute, unless the federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by tribal governments, or 

EPA consults with tribal officials early 

in the process of developing the 

proposed regulation and develops a 

tribal summary impact statement. 

This proposed rule does not have 

tribal implications, as specified in 

Executive Order 13175. Thus, Executive 

Order 13175 does not apply to this rule. 

EPA specifically solicits additional 

comment on this proposed rule from 

tribal officials. The SIP is not approved 

to apply on any Indian reservation land 

or in any other area where 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. 

G. Executive Order 13045, Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets Executive Order 13045 

(62 FR 19885, April 23, 1997) as 


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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 

proposes to approve a State rule 

implementing 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(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (NTTAA), Public Law 104– 

113, 12 (10) (15 U.S.C. 272 note) directs 

EPA to use voluntary consensus 

standards (VCS) in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. VCS are 

technical standards (e.g., materials 

specifications, test methods, sampling 

procedures, and business practices) that 

are developed or adopted by the VCS 

bodies. The NTTAA directs EPA to 

provide Congress, through annual 

reports to OMB, with explanations 

when the Agency decides not to use 

available and applicable VCS. EPA 

believes that VCS are inapplicable to 

this action. Today’s action does not 

require the public to perform activities 

conducive to the use of VCS. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Population 

Executive Order (EO) 12898 (59 FR 

7629 (Feb. 16, 1994)) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that this 

proposed 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. 

Dated: March 4, 2015. 

Jared Blumenfeld, 

Regional Administrator, Region IX. 

[FR Doc. 2015–06143 Filed 3–17–15; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R07–OAR–2015–0123; FRL–9924–54– 

Region 7] 

Approval and Promulgation of 

Implementation Plans; State of 

Missouri, Construction Permits 

Required 

AGENCY: Environmental Protection 

Agency. 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

revisions to the State Implementation 

Plan (SIP) for the State of Missouri 

submitted on October 2, 2013. This 

proposed rulemaking will amend the 

SIP to update the construction permits 

rule to incorporate by reference recent 

EPA actions related to plantwide 

applicability limitations (PALs) for 

greenhouse gases (GHGs) and to correct 

the definition of ‘‘regulated NSR 

pollutant.’’ Other revisions include 

modifying the notification period for 

initial equipment start-up and clarifying 

de minimis permit air quality analysis 

requirements. 

DATES: Comments must be received on 

or before April 17, 2015. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R07– 

OAR–2015–0123, by one of the 

following methods: 

1. www.regulations.gov. Follow the 

on-line instructions for submitting 

comments. 

2. Email: Higbee.paula@epa.gov. 

3. Mail or Hand Delivery: Paula 

Higbee, Environmental Protection 

Agency, Air Planning and Development 

Branch, 11201 Renner Boulevard, 

Lenexa, Kansas 66219. 

Instructions: Direct your comments to 

Docket ID No. EPA–R07–OAR–2015– 

0123. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit through 

www.regulations.gov or email 

information that you consider to be CBI 

or otherwise protected. The 

www.regulations.gov Web site is an 

‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an email comment directly 

to EPA without going through 

www.regulations.gov, your email 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket: All documents in the docket 

are listed in the www.regulations.gov 

index. Although listed in the index, 

some information is not publicly 

available, i.e., CBI or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically in 

www.regulations.gov or in hard copy at 

the Environmental Protection Agency, 

Air Planning and Development Branch, 

11201 Renner Boulevard, Lenexa, 

Kansas 66219. The Regional Office’s 

official hours of business are Monday 

through Friday, 8:00 to 4:30 excluding 

legal holidays. The interested persons 

wanting to examine these documents 

should make an appointment with the 

office at least 24 hours in advance. 

FOR FURTHER INFORMATION CONTACT: 

Paula Higbee, Environmental Protection 

Agency, Air Planning and Development 

Branch, 11201 Renner Boulevard, 

Lenexa, Kansas 66219 at 913–551–7028 

or by email at Higbee.paula@epa.gov. 

SUPPLEMENTARY INFORMATION: 

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

or ‘‘our’’ refer to EPA. This section 

provides additional information by 

addressing the following: 

I. What is being addressed in this document? 

II. Background 

III. Have the requirements for approval of a 

SIP revision been met? 


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