```

[Federal Register Volume 77, Number 124 (Wednesday, June 27, 2012)]
[Proposed Rules]
[Pages 38239-38246]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-15732]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2012-0398; FRL-9692-5]

Partial Approval and Disapproval of Air Quality Implementation 
Plans; Arizona; Infrastructure Requirements for Ozone and Fine 
Particulate Matter

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to partially approve and partially disapprove 
a State Implementation Plan (SIP) revision submitted by the State of 
Arizona to address the requirements of section 110(a)(1) and (2) of the 
Clean Air Act (CAA) for the 1997 8-hour ozone national ambient air 
quality standards (NAAQS) and the 1997 and 2006 NAAQS for fine 
particulate matter (PM2.5). Section 110(a) of the CAA 
requires that each State adopt and submit a SIP for the implementation, 
maintenance, and enforcement of each NAAQS promulgated by the EPA. On 
September 18, 2008 and October 14, 2009, the Arizona Department of 
Environmental Quality (ADEQ) submitted a revision to Arizona's SIP, 
which describes the State's provisions for implementing, maintaining, 
and enforcing the standards listed above. On June 1, 2012, ADEQ 
submitted a supplement to these SIP revisions, including certain 
statutory and regulatory provisions. We are taking comments on this 
proposal and plan to follow with a final action.

DATES: Written comments must be received on or before July 27, 2012.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R09-OAR-2012-0398, by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: buss.jeffrey@epa.gov.
    3. Fax: 415-947-3579.
    4. Mail or deliver: Jeffrey Buss (AIR-2), U.S. Environmental 
Protection Agency, Region IX, 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 http://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 http://www.regulations.gov or email. http://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.
    Docket: Generally, documents in the docket for this action are 
available electronically at www.regulations.gov and in hard copy at EPA 
Region IX, 75 Hawthorne Street, San Francisco, California. 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

[[Page 38240]]

hours with the contact listed in the FOR FURTHER INFORMATION CONTACT 
section.

FOR FURTHER INFORMATION CONTACT: Jeffrey Buss, Air Planning Office 
(AIR-2), U.S. Environmental Protection Agency, Region IX, (415) 947-
4152, buss.jeffrey@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, the terms ``we,'' 
``us,'' and ``our'' refer to EPA.

Table of Contents

I. Background
    A. Statutory Framework
    B. Regulatory History
    C. Scope of the Infrastructure SIP Evaluation
II. The State's Submittal
III. EPA's Evaluation and Proposed Action
IV. Statutory and Executive Order Reviews

I. Background

A. Statutory Framework

    Section 110(a)(1) of the CAA requires states to make a SIP 
submission ``within 3 years (or such shorter period as the 
Administrator may prescribe) after the promulgation of a national 
primary ambient air quality standard (or any revision thereof),'' that 
provides for the ``implementation, maintenance, and enforcement'' of 
such NAAQS. Section 110(a)(2) includes a list of specific elements that 
``[e]ach such plan'' submission must meet. Many of the section 
110(a)(2) SIP elements relate to the general information and 
authorities that constitute the ``infrastructure'' of a state's air 
quality management program and SIP submittals that address these 
requirements are referred to as ``infrastructure SIPs.'' These 
infrastructure SIP elements include:
     Section 110(a)(2)(A): Emission limits and other control 
measures.
     Section 110(a)(2)(B): Ambient air quality monitoring/data 
system.
     Section 110(a)(2)(C): Program for enforcement of control 
measures and regulation of new and modified stationary sources.
     Section 110(a)(2)(D)(i): Interstate pollution transport.
     Section 110(a)(2)(D)(ii): Interstate and international 
pollution abatement.
     Section 110(a)(2)(E): Adequate resources and authority, 
conflict of interest, and oversight of local and regional government 
agencies.
     Section 110(a)(2)(F): Stationary source monitoring and 
reporting.
     Section 110(a)(2)(G): Emergency episodes.
     Section 110(a)(2)(H): SIP revisions.
     Section 110(a)(2)(J): Consultation with government 
officials, public notification, and prevention of significant 
deterioration (PSD) and visibility protection.
     Section 110(a)(2)(K): Air quality modeling and submission 
of modeling data.
     Section 110(a)(2)(L): Permitting fees.
     Section 110(a)(2)(M): Consultation/participation by 
affected local entities.

Two elements identified in section 110(a)(2) are not governed by the 
three-year submission deadline of section 110(a)(1) and are therefore 
not addressed in this action. These elements relate to part D of title 
I of the CAA, and submissions to satisfy them are not due within three 
years after promulgation of a new or revised NAAQS, but rather are due 
at the same time nonattainment area plan requirements are due under 
section 172. The two elements are: (i) Section 110(a)(2)(C) to the 
extent it refers to permit programs required under part D 
(nonattainment New Source Review (NSR)), and (ii) section 110(a)(2)(I), 
pertaining to the nonattainment planning requirements of part D. As a 
result, this action does not address infrastructure elements related to 
the nonattainment NSR portion of section 110(a)(2)(C) or related to 
110(a)(2)(I).

B. Regulatory History

    On July 18, 1997, EPA issued a revised NAAQS for ozone \1\ and a 
new NAAQS for fine particulate matter (PM2.5).\2\ EPA 
subsequently revised the 24-hour PM2.5 NAAQS on September 
21, 2006.\3\ Each of these actions triggered a requirement for states 
to submit an infrastructure SIP to address the applicable requirements 
of section 110(a)(2) within three years of issuance of the new or 
revised NAAQS.
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    \1\ The 8-hour averaging period replaced the previous 1-hour 
averaging period, and the level of the NAAQS was changed from 0.12 
parts per million (ppm) to 0.08 ppm (62 FR 38856).
    \2\ The annual PM2.5 standard was set at 15 
micrograms per cubic meter ([mu]g/m\3\), based on the 3-year average 
of annual arithmetic mean PM2.5 concentrations from 
single or multiple community-oriented monitors and the 24-hour 
PM2.5 standard was set at 65 [mu]g/m\3\, based on the 3-
year average of the 98th percentile of 24-hour PM2.5 
concentrations at each population-oriented monitor within an area 
(62 FR 38652).
    \3\ The final rule revising the 24-hour NAAQS for 
PM2.5 from 65 [mu]g/m\3\ to 35 [mu]g/m\3\ was published 
in the Federal Register on October 17, 2006 (71 FR 61144).
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    On March 10, 2005, EPA entered into a Consent Decree with 
Earthjustice that obligated EPA to make official findings in accordance 
with section 110(k)(1) of the CAA as to whether states had made 
required complete SIP submissions, pursuant to sections 110(a)(1) and 
(2), by December 15, 2007 for the 1997 8-hour ozone NAAQS and by 
October 5, 2008 for the 1997 PM2.5 NAAQS. EPA made such 
findings for the 1997 8-hour ozone NAAQS on March 27, 2008 (73 FR 
16205) and for the 1997 PM2.5 NAAQS on October 22, 2008 (73 
FR 62902). In each case, EPA found that Arizona had failed to make a 
complete submittal to satisfy the requirements of section 110(a)(2) for 
the relevant pollutant. On September 8, 2011, EPA found that Arizona 
had failed to make a complete submittal to satisfy the requirements of 
section 110(a)(2)(G) for the 2006 24-hour PM2.5 NAAQS (76 FR 
55577).

C. Scope of the Infrastructure SIP Evaluation

    EPA is currently acting upon SIPs that address the infrastructure 
requirements of CAA section 110(a)(1) and (2) for ozone and 
PM2.5 NAAQS for various states across the country. 
Commenters on EPA's recent proposals for some states raised concerns 
about EPA statements that it was not addressing certain substantive 
issues in the context of acting on those infrastructure SIP 
submissions.\4\ Those commenters specifically raised concerns involving 
provisions in existing SIPs and with EPA's statements in other 
proposals that it would address two issues separately and not as part 
of actions on the infrastructure SIP submissions: (i) Existing 
provisions related to excess emissions during periods of start-up, 
shutdown, or malfunction at sources, that may be contrary to the CAA 
and EPA's policies addressing such excess emissions (``SSM''); and (ii) 
existing provisions related to ``director's variance'' or ``director's 
discretion'' that purport to permit revisions to SIP approved emissions 
limits with limited public process or without requiring further 
approval by EPA, that may be contrary to the CAA (``director's 
discretion''). EPA notes that there are two other substantive issues 
for which EPA likewise stated in other proposals that it would address 
the issues separately: (i) Existing provisions for minor source new 
source review programs that may be inconsistent with the requirements 
of the CAA and EPA's regulations that pertain to such programs (``minor 
source NSR''); and (ii) existing provisions for Prevention of 
Significant Deterioration programs that may be inconsistent with 
current requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 
80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) 
(``NSR Reform''). In light of the comments, EPA believes that its 
statements in various

[[Page 38241]]

proposed actions on infrastructure SIPs with respect to these four 
individual issues should be explained in greater depth.
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    \4\ See, Comments of Midwest Environmental Defense Center, dated 
May 31, 2011. Docket EPA-R05-OAR-2007-1179 (adverse 
comments on proposals for three states in Region 5).
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    EPA intended the statements in other proposals concerning these 
four issues merely to be informational, and to provide general notice 
of the potential existence of provisions within the existing SIPs of 
some states that might require future corrective action. EPA did not 
want states, regulated entities, or members of the public to be under 
the misconception that the Agency's approval of the infrastructure SIP 
submission of a given state should be interpreted as a reapproval of 
certain types of provisions that might exist buried in the larger 
existing SIP for such state. Thus, for example, EPA explicitly noted 
that the Agency believes that some states may have existing SIP-
approved SSM provisions that are contrary to the CAA and EPA policy, 
but that ``in this rulemaking, EPA is not proposing to approve or 
disapprove any existing State provisions with regard to excess 
emissions during SSM of operations at facilities.'' EPA further 
explained, for informational purposes, that ``EPA plans to address such 
State regulations in the future.'' EPA made similar statements, for 
similar reasons, with respect to the director's discretion, minor 
source NSR, and NSR Reform issues. EPA's objective was to make clear 
that approval of an infrastructure SIP for these NAAQS should not be 
construed as explicit or implicit reapproval of any existing provisions 
that relate to these four substantive issues.
    Unfortunately, the commenters and others evidently interpreted 
these statements to mean that EPA considered action upon the SSM 
provisions and the other three substantive issues to be integral parts 
of acting on an infrastructure SIP submission, and therefore that EPA 
was merely postponing taking final action on the issues in the context 
of the infrastructure SIPs. This was not EPA's intention. To the 
contrary, EPA only meant to convey its awareness of the potential for 
certain types of deficiencies in existing SIPs, and to prevent any 
misunderstanding that it was reapproving any such existing provisions. 
EPA's intention was to convey its position that the statute does not 
require that infrastructure SIPs address these specific substantive 
issues in existing SIPs and that these issues may be dealt with 
separately, outside the context of acting on the infrastructure SIP 
submission of a state. To be clear, EPA did not mean to imply that it 
was not taking a full final agency action on the infrastructure SIP 
submission with respect to any substantive issue that EPA considers to 
be a required part of acting on such submissions under section 110(k) 
or under section 110(c). Given the confusion evidently resulting from 
EPA's statements in those other proposals, however, we want to explain 
more fully the Agency's reasons for concluding that these four 
potential substantive issues in existing SIPs may be addressed 
separately from actions on infrastructure SIP submissions.
    Although section 110(a)(1) addresses the timing and general 
requirements for these infrastructure SIPs, and section 110(a)(2) 
provides more details concerning the required contents of these 
infrastructure SIPs, EPA believes that many of the specific statutory 
provisions are facially ambiguous. In particular, the list of required 
elements provided in section 110(a)(2) contains a wide variety of 
disparate provisions, some of which pertain to required legal 
authority, some of which pertain to required substantive provisions, 
and some of which pertain to requirements for both authority and 
substantive provisions.\5\ Some of the elements of section 110(a)(2) 
are relatively straightforward, but others clearly require 
interpretation by EPA through rulemaking, or recommendations through 
guidance, in order to give specific meaning for a particular NAAQS.\6\
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    \5\ For example, section 110(a)(2)(E) provides that states must 
provide assurances that they have adequate legal authority under 
state and local law to carry out the SIP; section 110(a)(2)(C) 
provides that states must have a substantive program to address 
certain sources as required by part C of the CAA; section 
110(a)(2)(G) provides that states must have both legal authority to 
address emergencies and substantive contingency plans in the event 
of such an emergency.
    \6\ For example, section 110(a)(2)(D)(i) requires EPA to be sure 
that each state's SIP contains adequate provisions to prevent 
significant contribution to nonattainment of the NAAQS in other 
states. This provision contains numerous terms that require 
substantial rulemaking by EPA in order to determine such basic 
points as what constitutes significant contribution. See, e.g., 
``Rule To Reduce Interstate Transport of Fine Particulate Matter and 
Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; 
Revisions to the NOX SIP Call; Final Rule,'' 70 FR 25162 
(May 12, 2005) (defining, among other things, the phrase 
``contribute significantly to nonattainment'').
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    Notwithstanding that section 110(a)(2) provides that ``each'' SIP 
submission must meet the list of requirements therein, EPA has long 
noted that this literal reading of the statute is internally 
inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment 
SIP requirements that could not be met on the schedule provided for 
these SIP submissions in section 110(a)(1).\7\ This illustrates that 
EPA must determine which provisions of section 110(a)(2) may be 
applicable for a given infrastructure SIP submission. Likewise, EPA has 
previously decided that it could take action on different parts of the 
larger, general ``infrastructure SIP'' for a given NAAQS without 
concurrent action on all subsections.\8\ Finally, EPA notes that not 
every element of section 110(a)(2) would be relevant, or as relevant, 
or relevant in the same way, for each new or revised NAAQS and the 
attendant infrastructure SIP submission for that NAAQS. For example, 
the monitoring requirements that might be necessary for purposes of 
section 110(a)(2)(B) for one NAAQS could be very different than what 
might be necessary for a different pollutant. Thus, the content of an 
infrastructure SIP submission to meet this element from a state might 
be very different for an entirely new NAAQS, versus a minor revision to 
an existing NAAQS.\9\
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    \7\ See, e.g., Id., 70 FR 25162, at 63-65 (May 12, 2005) 
(explaining relationship between timing requirement of section 
110(a)(2)(D) versus section 110(a)(2)(I)).
    \8\ For example, EPA issued separate guidance to states with 
respect to SIP submissions to meet section 110(a)(2)(D)(i) for the 
1997 8-hour ozone and 1997 PM2.5 NAAQS. See, ``Guidance 
for State Implementation Plan (SIP) Submissions to Meet Current 
Outstanding Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour 
Ozone and PM2.5 National Ambient Air Quality Standards,'' 
from William T. Harnett, Director, Air Quality Policy Division 
OAQPS, to Regional Air Division Director, Regions I-X, dated August 
15, 2006. In addition, EPA bifurcated the action on these 
``interstate transport'' provisions within section 110(a)(2) and in 
most instances, substantive administrative actions occurred on 
different tracks with different schedules.
    \9\ For example, implementation of the 1997 PM2.5 
NAAQS required the deployment of a system of new monitors to measure 
ambient levels of that new indicator species for the new NAAQS.
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    Similarly, EPA notes that other types of SIP submissions required 
under the statute also must meet the requirements of section 110(a)(2), 
and this also demonstrates the need to identify the applicable elements 
for other SIP submissions. For example, nonattainment SIPs required by 
part D likewise have to meet the relevant subsections of section 
110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear 
that nonattainment SIPs would not need to meet the portion of section 
110(a)(2)(C) that pertains to part C, i.e., the PSD requirements 
applicable in attainment areas. Nonattainment SIPs required by part D 
also would not need to address the requirements of section 110(a)(2)(G) 
with respect to emergency episodes, as such requirements would not be 
limited to nonattainment areas. As this example illustrates, each type 
of

[[Page 38242]]

SIP submission may implicate some subsections of section 110(a)(2) and 
not others.
    Given the potential for ambiguity of the statutory language of 
section 110(a)(1) and (2), EPA believes that it is appropriate for EPA 
to interpret that language in the context of acting on the 
infrastructure SIPs for a given NAAQS. Because of the inherent 
ambiguity of the list of requirements in section 110(a)(2), EPA has 
adopted an approach in which it reviews infrastructure SIPs against 
this list of elements ``as applicable.'' In other words, EPA assumes 
that Congress could not have intended that each and every SIP 
submission, regardless of the purpose of the submission or the NAAQS in 
question, would meet each of the requirements, or meet each of them in 
the same way. EPA elected to use guidance to make recommendations for 
infrastructure SIPs for these ozone and PM2.5 NAAQS.
    On October 2, 2007, EPA issued guidance making recommendations for 
the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS 
and the 1997 PM2.5 NAAQS.\10\ Within this guidance document, 
EPA described the duty of states to make these submissions to meet what 
the Agency characterized as the ``infrastructure'' elements for SIPs, 
which it further described as the ``basic SIP requirements, including 
emissions inventories, monitoring, and modeling to assure attainment 
and maintenance of the standards.'' \11\ As further identification of 
these basic structural SIP requirements, ``attachment A'' to the 
guidance document included a short description of the various elements 
of section 110(a)(2) and additional information about the types of 
issues that EPA considered germane in the context of such 
infrastructure SIPs. EPA emphasized that the description of the basic 
requirements listed on attachment A was not intended ``to constitute an 
interpretation of'' the requirements, and was merely a ``brief 
description of the required elements.'' \12\ EPA also stated its belief 
that with one exception, these requirements were ``relatively self 
explanatory, and past experience with SIPs for other NAAQS should 
enable States to meet these requirements with assistance from EPA 
Regions.'' \13\ For the one exception to that general assumption, 
however, i.e., how states should proceed with respect to the 
requirements of section 110(a)(2)(G) for the 1997 PM2.5 
NAAQS, EPA gave much more specific recommendations. But for other 
infrastructure SIP submittals, and for certain elements of the 
submittals for the 1997 PM2.5 NAAQS, EPA assumed that each 
State would work with its corresponding EPA regional office to refine 
the scope of a State's submittal based on an assessment of how the 
requirements of section 110(a)(2) should reasonably apply to the basic 
structure of the State's SIP for the NAAQS in question.
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    \10\ See, ``Guidance on SIP Elements Required Under Section 
110(a)(1) and (2) for the 1997 8-Hour Ozone and PM2.5 
National Ambient Air Quality Standards,'' from William T. Harnett, 
Director, Air Quality Policy Division, to Air Division Directors, 
Regions I-X, dated October 2, 2007 (the ``2007 Guidance'').
    \11\ Id. at page 2.
    \12\ Id. at attachment A, page 1.
    \13\ Id. at page 4. In retrospect, the concerns raised by 
commenters with respect to EPA's approach to some substantive issues 
indicate that the statute is not so ``self explanatory,'' and indeed 
is sufficiently ambiguous that EPA needs to interpret it in order to 
explain why these substantive issues do not need to be addressed in 
the context of infrastructure SIPs and may be addressed at other 
times and by other means.
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    On September 25, 2009, EPA issued guidance to make recommendations 
to states with respect to the infrastructure SIPs for the 2006 
PM2.5 NAAQS.\14\ In the 2009 Guidance, EPA addressed a 
number of additional issues that were not germane to the infrastructure 
SIPs for the 1997 8-hour ozone and 1997 PM2.5 NAAQS, but 
were germane to these SIP submissions for the 2006 PM2.5 
NAAQS. Significantly, neither the 2007 Guidance nor the 2009 Guidance 
explicitly referred to the SSM, director's discretion, minor source 
NSR, or NSR Reform issues as among specific substantive issues EPA 
expected states to address in the context of the infrastructure SIPs, 
nor did EPA give any more specific recommendations with respect to how 
states might address such issues even if they elected to do so. The SSM 
and director's discretion issues implicate section 110(a)(2)(A), and 
the minor source NSR and NSR Reform issues implicate section 
110(a)(2)(C). In the 2007 Guidance and the 2009 Guidance, however, EPA 
did not indicate to states that it intended to interpret these 
provisions as requiring a substantive submission to address these 
specific issues in existing SIP provisions in the context of the 
infrastructure SIPs for these NAAQS. Instead, EPA's 2007 Guidance 
merely indicated its belief that the states should make submissions in 
which they established that they have the basic SIP structure necessary 
to implement, maintain, and enforce the NAAQS. EPA believes that states 
can establish that they have the basic SIP structure, notwithstanding 
that there may be potential deficiencies within the existing SIP.
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    \14\ See, ``Guidance on SIP Elements Required Under Sections 
110(a)(1) and (2) for the 2006 24-Hour Fine Particle 
(PM2.5) National Ambient Air Quality Standards (NAAQS),'' 
from William T, Harnett, Director, Air Quality Policy Division, to 
Regional Air Division Directors, Regions I-X, dated September 25, 
2009 (the ``2009 Guidance'').
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    EPA believes that this approach to the infrastructure SIP 
requirement is reasonable, because it would not be feasible to read 
section 110(a)(1) and (2) to require a comprehensive review of each and 
every provision of an existing SIP merely for purposes of assuring that 
the state in question has the basic structural elements for a 
functioning SIP for a new or revised NAAQS. Because SIPs have grown by 
accretion over the decades as statutory and regulatory requirements 
under the CAA have evolved, they may include some outmoded provisions 
and historical artifacts that, while not fully up to date, nevertheless 
may not pose a significant problem for the purposes of 
``implementation, maintenance, and enforcement'' of a new or revised 
NAAQS when EPA considers the overall effectiveness of the SIP. To the 
contrary, EPA believes that a better approach is for EPA to determine 
which specific SIP elements from section 110(a)(2) are applicable to an 
infrastructure SIP for a given NAAQS, and to focus attention on those 
elements that are most likely to need a specific SIP revision in light 
of the new or revised NAAQS. Thus, for example, EPA's 2007 Guidance 
specifically directed states to focus on the requirements of section 
110(a)(2)(G) for the 1997 PM2.5 NAAQS because of the absence 
of underlying EPA regulations for emergency episodes for this NAAQS and 
an anticipated absence of relevant provisions in existing SIPs.
    Finally, EPA believes that its approach is a reasonable reading of 
section 110(a)(1) and (2) because the statute provides other avenues 
and mechanisms to address specific substantive deficiencies in existing 
SIPs. These other statutory tools allow the Agency to take appropriate 
tailored action, depending upon the nature and severity of the alleged 
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP 
call'' whenever the Agency determines that a state's SIP is 
substantially inadequate to attain or maintain the NAAQS, to mitigate 
interstate transport, or otherwise to comply with the CAA.\15\ Section 
110(k)(6) authorizes EPA to correct errors in past actions, such as 
past

[[Page 38243]]

approvals of SIP submissions.\16\ Significantly, EPA's determination 
that an action on the infrastructure SIP is not the appropriate time 
and place to address all potential existing SIP problems does not 
preclude the Agency's subsequent reliance on provisions in section 
110(a)(2) as part of the basis for action at a later time. For example, 
although it may not be appropriate to require a state to eliminate all 
existing inappropriate director's discretion provisions in the course 
of acting on the infrastructure SIP, EPA believes that section 
110(a)(2)(A) may be among the statutory bases that the Agency cites in 
the course of addressing the issue in a subsequent action.\17\
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    \15\ EPA has recently issued a SIP call to rectify a specific 
SIP deficiency related to the SSM issue. See, ``Finding of 
Substantial Inadequacy of Implementation Plan; Call for Utah State 
Implementation Plan Revision,'' 76 FR 21639 (April 18, 2011).
    \16\ EPA has recently utilized this authority to correct errors 
in past actions on SIP submissions related to PSD programs. See, 
``Limitation of Approval of Prevention of Significant Deterioration 
Provisions Concerning Greenhouse Gas Emitting-Sources in State 
Implementation Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). 
EPA has previously used its authority under CAA 110(k)(6) to remove 
numerous other SIP provisions that the Agency determined it had 
approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 
34641 (June 27, 1997) (corrections to American Samoa, Arizona, 
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 
2004) (corrections to California SIP); and 74 FR 57051 (November 3, 
2009) (corrections to Arizona and Nevada SIPs).
    \17\ EPA has recently disapproved a SIP submission from Colorado 
on the grounds that it would have included a director's discretion 
provision inconsistent with CAA requirements, including section 
110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 
2010)(proposed disapproval of director's discretion provisions); 76 
FR 4540 (January 26, 2011)(final disapproval of such provisions).
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II. The State's Submittals

    On September 18, 2008, ADEQ submitted the ``Analysis of Clean Air 
Act Section 110(a)(2) Air Quality Control Program Elements for 
Arizona--PM2.5,'' to address several elements of CAA section 
110(a)(2) for the 1997 PM2.5 NAAQS (``2008 Infrastructure 
Analysis'').\18\ On October 14, 2009, ADEQ submitted the ``Arizona 
State Implementation Plan Revision under Clean Air Act Section 
110(a)(2) and (2); 2006 PM2.5 NAAQS, 1997 PM2.5 
NAAQS and 1997 8-hour Ozone NAAQS,'' to address all of the CAA section 
110(a)(2) requirements except for section 110(a)(2)(G) \19\ for these 
three NAAQS (``2009 Infrastructure Analysis'').\20\ The 2009 
Infrastructure Analysis includes public process documentation 
(including public comments) and evidence of adoption.
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    \18\ See letter dated September 18, 2008, from Stephen A. Owens, 
Air Quality Director, ADEQ, to Wayne Nastri, Regional Administrator, 
EPA Region 9.
    \19\ In a separate rulemaking, EPA proposed to fully approve 
Arizona's SIP to address the requirements regarding air pollution 
emergency episodes in CAA section 110(a)(2)(G) for the 1997 8-hour 
ozone NAAQS. 77 FR 21911 (April 12, 2012).
    \20\ See letter dated October 14, 2009, from Eric C. Massey, Air 
Quality Director, ADEQ, to Laura Yoshii, Acting Regional 
Administrator, EPA Region 9.
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    On June 1, 2012, ADEQ submitted the ``Proposed Supplement to the 
Arizona State Implementation Plan under Clean Air Act Section 110(a)(1) 
and (2): Implementation of [1997 PM2.5 and 8-hour ozone 
NAAQS and 2006 PM2.5 NAAQS], Parallel Processing Version'' 
(``2012 Supplement''). The 2012 Supplement includes a number of 
statutes and regulations that are currently effective under State law 
but that have not been adopted specifically for submittal to EPA as a 
SIP revision under CAA section 110. By letter dated June 1, 2012, ADEQ 
submitted unofficial copies of these statutes and regulations to EPA 
with a request for ``parallel processing'' \21\ and stated its 
intention to submit these statutes and regulations as a formal SIP 
submittal, following reasonable notice and public hearings, by late 
August 2012.\22\ ADEQ amended this request by letter dated June 14, 
2012, to remove several statutes and regulations from the 2012 
Supplement.\23\ With respect to two Pima County regulations included in 
the 2012 Supplement (rules 17.12.040 and 17.24.040), ADEQ has informed 
us that it is awaiting confirmation that the Pima County Department of 
Environmental Quality (PCDEQ) will commence a local rulemaking process 
to adopt these regulations as SIP revisions under CAA section 110 and 
thereafter submit the rules to ADEQ for transmittal to EPA.\24\ In a 
separate proposal published in today's Federal Register, we are 
proposing to approve these Pima County regulations, among others, into 
the Arizona SIP contingent upon ADEQ's submittal of them as fully 
adopted SIP revisions. See ``Revisions to the Arizona State 
Implementation Plan, Arizona Department of Environmental Quality, 
Maricopa County Air Quality Department, and Pima County Department of 
Environmental Quality,'' proposed rule, signed June 15, 2012.
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    \21\ Under EPA's ``parallel processing'' procedure, EPA proposes 
rulemaking action concurrently with the State's proposed rulemaking. 
If the State's proposed plan is changed, EPA will evaluate that 
subsequent change and may publish another notice of proposed 
rulemaking. If no significant change is made, EPA will publish a 
final rulemaking on the plan after responding to any submitted 
comments. Final rulemaking action by EPA will occur only after the 
plan has been fully adopted by Arizona and submitted formally to EPA 
for approval into the SIP. See 40 CFR part 51, appendix V, section 
2.3. We note that because ADEQ's rulemaking process here is solely 
for purposes of adopting the 2012 Supplement as a SIP revision under 
CAA section 110 and not for purposes of revising any of the statutes 
or regulations contained therein, we do not expect any significant 
changes between the proposed and final plans.
    \22\ See letter dated June 1, 2012, from Eric C. Massey, Air 
Quality Director, ADEQ, to Jared Blumenfeld, Regional Administrator, 
EPA Region 9.
    \23\ See letter dated June 14, 2012, from Eric C. Massey, Air 
Quality Director, ADEQ, to Jared Blumenfeld, Regional Administrator, 
EPA Region 9.
    \24\ See email dated June 14, 2012, from Danielle Dancho, ADEQ, 
to Jeanhee Hong, EPA Region 9.
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    Because the 2009 Infrastructure Analysis includes comprehensive 
updates to and essentially supersedes the 2008 Infrastructure Analysis, 
we are proposing to act on the 2009 Infrastructure Analysis, as 
supplemented and amended by the 2012 Supplement. We refer to the 2009 
Infrastructure Analysis and 2012 Supplement collectively as the ``2009 
Infrastructure SIP.'' Although we are proposing to act only on the 2009 
Infrastructure SIP, we have reviewed materials provided in the 2008 
Infrastructure Analysis to the extent applicable to our evaluation.

III. EPA's Evaluation and Proposed Action

    EPA has evaluated the 2009 Infrastructure SIP and the existing 
provisions of the Arizona SIP for compliance with the CAA section 
110(a) requirements for the 1997 8-hour ozone and PM2.5 
NAAQS and the 2006 PM2.5 NAAQS. Our Technical Support 
Document (TSD) contains more detailed evaluations and is available in 
the public docket for this rulemaking, which may be accessed online at 
http://www.regulations.gov, docket number EPA-R09-OAR-2012-0398.
    Based upon this analysis, EPA proposes to approve the 2009 
Infrastructure SIP with respect to the following infrastructure SIP 
requirements:
     Section 110(a)(2)(A): Emission limits and other control 
measures.
     Section 110(a)(2)(B): Ambient air quality monitoring/data 
system.
     Section 110(a)(2)(C) (in part): Program for enforcement of 
control measures and regulation of new and modified stationary sources.
     Section 110(a)(2)(D)(ii) (in part): Interstate pollution 
abatement and international air pollution.
     Section 110(a)(2)(E)(i): Adequate resources and legal 
authority.
     Section 110(a)(2)(E)(iii): State oversight of local or 
regional government agencies.
     Section 110(a)(2)(F): Stationary source monitoring and 
reporting.
     Section 110(a)(2)(G): Emergency episodes.
     Section 110(a)(2)(H): SIP revisions.
     Section 110(a)(2)(J) (in part): Consultation with 
government officials and public notification.

[[Page 38244]]

     Section 110(a)(2)(L): Permitting fees.
     Section 110(a)(2)(M): Consultation/participation by 
affected local entities.

In addition, we are proposing to approve into the SIP certain statutory 
and regulatory provisions included in the 2009 Infrastructure SIP, as 
discussed in the TSD.\25\ With respect to the requirements for 
stationary source monitoring and reporting in CAA section 110(a)(2)(F), 
our proposed approval is contingent upon receipt of fully adopted 
versions of the two Pima County regulations discussed above, which must 
go through a local SIP rulemaking process before ADEQ submits them to 
EPA as SIP revisions.\26\ We propose, in the alternative, to disapprove 
the 2009 Infrastructure SIP with respect to the requirements of CAA 
section 110(a)(2)(F) in Pima County, if ADEQ does not submit these 
regulations as SIP revisions following all required procedures before 
we take final action on the 2009 Infrastructure SIP.
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    \25\ Copies of these Arizona statutes and regulations are 
included in the 2012 Supplement, which is available in the docket 
for this action and online at http://www.regulations.gov, docket 
number EPA-R09-OAR-2012-0398.
    \26\ See fn. 24, above.

    Simultaneously, we are proposing to disapprove the 2009 
Infrastructure SIP with respect to the following infrastructure SIP 
requirements:
     Section 110(a)(2)(C) (in part): Permit program for 
regulation of new and modified stationary sources under part C of title 
I of the Act (PSD).
     Section 110(a)(2)(D)(i)(II): Provisions to prohibit 
interference with other states' PSD measures.
     Section 110(a)(2)(D)(ii) (in part): Interstate pollution 
abatement and international air pollution.
     Section 110(a)(2)(J) (in part): PSD.
     Section 110(a)(2)(K): Air quality modeling and submission 
of modeling data.

As explained more fully in the TSD, we are proposing to disapprove the 
2009 Infrastructure SIP with respect to these requirements of CAA 
section 110(a)(2) because the Arizona SIP does not fully satisfy the 
statutory and regulatory requirements for Prevention of Significant 
Deterioration (PSD) permit programs under part C, title I of the Act. 
Both the Maricopa County Air Quality Department (MCAQD) and the Pima 
County Department of Environmental Quality (PDEQ) currently implement 
the Federal PSD program in 40 CFR 52.21 for all regulated NSR 
pollutants, pursuant to delegation agreements with EPA. 40 CFR 
52.144.\27\ Accordingly, although the Arizona SIP remains deficient 
with respect to PSD requirements in both Maricopa and Pima counties, 
these deficiencies are adequately addressed in both areas by the 
Federal PSD program. ADEQ implements a SIP-approved PSD program for all 
regulated NSR pollutants except for PM-10 and GHGs \28\ (48 FR 19878, 
May 3, 1983), and the Pinal County Air Quality Control District 
(PCAQCD) implements a SIP-approved PSD program for all regulated NSR 
pollutants except for GHGs \29\ (61 FR 15717, April 9, 1996, as amended 
by 65 FR 79742, December 20, 2000). EPA understands that both ADEQ and 
the PCAQCD intend to submit, in the near future, PSD SIP revisions 
addressing the deficiencies identified in our TSD.\30\
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    \27\ See 59 FR 1730 (January 12, 1994) and ``Agreement for 
Delegation of Authority of the Regulations for Prevention of 
Significant Deterioration of Air Quality (40 CFR 52.21) Between U.S. 
EPA and MC,'' executed November 22, 1993; ``Agreement for Delegation 
of Authority of the Regulations for Prevention of Significant 
Deterioration of Air Quality (40 CFR 52.21) Between U.S. EPA and 
Pima County Air Quality Control District,'' executed April 14, 1994.
    \28\ For PM-10 and GHGs, ADEQ implements the Federal PSD program 
in 40 CFR 52.21 pursuant to delegation agreements executed in 1999 
and 2011, respectively. 40 CFR 52.37; ``Agreement for Delegation of 
Authority of the PM-10 Regulations for Prevention of Significant 
Deterioration of Air Quality (40 CFR 52.21) Between EPA and Arizona 
DEQ,'' executed March 12, 1999''; ``U.S. EPA-Arizona Department of 
Environmental Quality Agreement for Delegation of Authority to Issue 
and Modify Greenhouse Gas Prevention of Significant Deterioration 
Permits Subject to 40 CFR 52.21,'' executed March 30, 2011.
    \29\ For GHGs, Pinal County implements the Federal PSD program 
in 40 CFR 52.21 pursuant to a delegation agreement executed in 2011. 
40 CFR 52.37; ``U.S. EPA-Pinal County Air Quality Control District 
Agreement for Delegation of Authority to Issue and Modify Greenhouse 
Gas Prevention of Significant Deterioration Permits Subject to 40 
CFR 52.21,'' executed August 10, 2011.
    \30\ On April 10, 2012, ADEQ submitted draft PSD program 
regulations to EPA with a request for ``parallel processing'' under 
40 CFR part 51, appendix V. We intend to act on this PSD submittal 
expeditiously upon receipt of an official SIP revision containing 
ADEQ's fully adopted PSD regulations.
---------------------------------------------------------------------------

    We are not proposing to act today on those elements of the 2009 
Infrastructure SIP that address the requirements of section 
110(a)(2)(D)(i)(I) of the Act regarding significant contribution to 
nonattainment or interference with maintenance in any other State 
(referred to as ``interstate transport'' provisions). EPA previously 
approved Arizona's interstate transport SIP as satisfying the 
requirements of CAA section 110(a)(2)(D)(i)(I) for the 1997 8-hour 
ozone and 1997 PM2.5 NAAQS. 72 FR 41629 (July 31, 2007). For 
purposes of the 2006 PM2.5 NAAQS, EPA intends to propose 
action on the interstate transport element of the 2009 Infrastructure 
SIP in a subsequent rulemaking and to take final action on this element 
of the SIP by September 30, 2012, consistent with the terms of the 
consent decree entered October 20, 2011 in WildEarth Guardians v. EPA, 
Case No. 3:11-cv-00190.
    Additionally, we are not proposing to act today on those elements 
of the 2009 Infrastructure SIP that address the requirements of section 
110(a)(2)(D)(i)(II) of the Act regarding interference with measures to 
protect visibility in other states.\31\ EPA intends to act on these 
visibility-related elements of the 2009 Infrastructure SIP in a 
subsequent rulemaking that will address the requirements of the 
Regional Haze program, under the terms of a separate consent decree.
---------------------------------------------------------------------------

    \31\ EPA's action on this element of the 2009 Infrastructure SIP 
is not subject to the same consent decree and settlement agreement 
deadlines that apply to our action on most other elements of the 
2009 Infrastructure SIP. See Consent Decree entered October 20, 2011 
in WildEarth Guardians v. EPA, Case No. 3:11-cv-00190 (paragraph 22) 
and Settlement Agreement executed November 30, 2011 in Sierra Club 
v. EPA, Case No. 3:10-cv-04060 (paragraph 8(a)).
---------------------------------------------------------------------------

    Finally, we are not proposing to act today on the portion of the 
2009 Infrastructure SIP that addresses requirements respecting state 
boards under CAA section 110(a)(2)(E)(ii). We will propose action on 
this element in a subsequent rulemaking.
    Section 110(l) of the Act prohibits EPA from approving any SIP 
revision that would interfere with any applicable requirement 
concerning attainment and reasonable further progress (RFP) or any 
other applicable requirement of the Act. All of the elements of the 
2009 Infrastructure SIP that we are proposing to approve, as explained 
in the TSD, would improve the SIP by replacing obsolete statutes or 
regulations and by updating the state and local agencies' SIP 
implementation and enforcement authorities. We propose to determine 
that our approval of these elements of the 2009 Infrastructure SIP 
would comply with CAA section 110(l) because the proposed SIP revision 
would not interfere with the on-going process for ensuring that 
requirements for RFP and attainment of the NAAQS are met, and the 
submitted SIP revision clarifies and updates the SIP. Our TSD contains 
a more detailed discussion of our evaluation.
    Under section 179(a) of the CAA, final disapproval of a submittal 
that addresses a requirement of part D, title I of the CAA (CAA 
sections 171-193) or is required in response to a finding of 
substantial inadequacy as described in CAA section 110(k)(5) (SIP Call) 
starts a sanctions clock. The 2009 Infrastructure SIP was not submitted 
to meet either of

[[Page 38245]]

these requirements. Therefore, any action we take to finalize the 
described partial disapprovals will not trigger mandatory sanctions 
under CAA section 179.
    In addition, CAA section 110(c)(1) provides that EPA must 
promulgate a Federal Implementation Plan (FIP) within two years after 
finding that a State has failed to make a required submission or 
disapproving a State implementation plan submission in whole or in 
part, unless EPA approves a SIP revision correcting the deficiencies 
within that two-year period.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and 
is therefore not subject to review under the EO.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., 
because this proposed SIP disapproval under section 110 and subchapter 
I, part D of the Clean Air Act will not in-and-of itself create any new 
information collection burdens but simply disapproves certain State 
requirements for inclusion into the SIP. Burden is defined at 5 CFR 
1320.3(b).

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions. For purposes of assessing the impacts of today's rule on 
small entities, small entity is defined as: (1) A small business as 
defined by the Small Business Administration's (SBA) regulations at 13 
CFR 121.201; (2) a small governmental jurisdiction that is a government 
of a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
impact on a substantial number of small entities. This rule does not 
impose any requirements or create impacts on small entities. This 
proposed SIP disapproval under section 110 and subchapter I, part D of 
the Clean Air Act will not in-and-of itself create any new requirements 
but simply disapproves certain State requirements for inclusion into 
the SIP. Accordingly, it affords no opportunity for EPA to fashion for 
small entities less burdensome compliance or reporting requirements or 
timetables or exemptions from all or part of the rule. The fact that 
the Clean Air Act prescribes that various consequences (e.g., higher 
offset requirements) may or will flow from this disapproval does not 
mean that EPA either can or must conduct a regulatory flexibility 
analysis for this action. Therefore, this action will not have a 
significant economic impact on a substantial number of small entities.
    We continue to be interested in the potential impacts of this 
proposed rule on small entities and welcome comments on issues related 
to such impacts.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for State, local, or tribal governments or the private 
sector.'' EPA has determined that the proposed disapproval action does 
not include a Federal mandate that may result in estimated costs of 
$100 million or more to either State, local, or tribal governments in 
the aggregate, or to the private sector. This action proposes to 
disapprove pre-existing requirements under State or local law, and 
imposes no new requirements. Accordingly, no additional costs to State, 
local, or tribal governments, or to the private sector, result from 
this action.

E. Executive Order 13132, Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This action does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132, because it merely disapproves 
certain State requirements for inclusion into the SIP and does not 
alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. Thus, Executive 
Order 13132 does not apply to this action.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP 
EPA is proposing to disapprove would not apply in Indian country 
located in the state, and EPA notes that it will not impose substantial 
direct costs on tribal governments or preempt tribal law. Thus, 
Executive Order 13175 does not apply to this action.

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

    EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying 
only to those regulatory actions that concern health or safety risks, 
such that the analysis required under section 5-501 of the EO has the 
potential to influence the regulation. This action is not subject to EO 
13045 because it is not an economically significant regulatory action 
based on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997). This proposed SIP disapproval under section 110 
and subchapter I, part D of the Clean Air Act will not in-and-of itself 
create any new regulations but simply disapproves certain State 
requirements for inclusion into the SIP.

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

    This proposed rule is not subject to Executive Order 13211 (66 FR 
28355, May 22, 2001) because it is not a significant regulatory action 
under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law

[[Page 38246]]

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

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

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA lacks the discretionary authority to address environmental 
justice in this rulemaking.

List of Subjects in 40 CFR Part 52

    Air pollution control, Environmental protection, Intergovernmental 
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements, Volatile organic compounds.

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

    Dated: June 15, 2012.
Jared Blumenfeld,
Regional Administrator, Region IX.
[FR Doc. 2012-15732 Filed 6-26-12; 8:45 am]
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