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66398 Federal Register/Vol. 77, No. 214/Monday, November 5, 2012/Rules and Regulations

[FR Doe. 2012-26759 Filed 11-2-12; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[EPA-R09-OAR-2012-0398; FRL-9745-8]

Partial Approval and Disapproval of Air

Quality Implementation Plans; Arizona;

Infrastructure Requirements for Ozone

and Fine Particulate Matter

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is approving in part and

disapproving in part State

Implementation Plan (SIP) revisions

submitted by the state of Arizona

pursuant to the requirements 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).

The Clean Air Act requires that each

State adopt and submit a SIP for the

implementation, maintenance, and

enforcement of each NAAQS

promulgated by the EPA. Arizona has

met most of the applicable

requirements. Where EPA is

disapproving, in part, Arizona's SIP

revisions, several of the deficiencies

have already been addressed by a

federal implementation plan (FIP). The

remaining deficiencies are subject to a

two-year deadline for EPA to

promulgate a FIP, unless EPA approves

an adequate SIP revision prior to that

time. EPA remains committed to

working with Arizona to develop such

a SIP revision.

DATES: Effective Date: This final rule is

effective on December 5, 2012.

ADDRESSES: EPA has established a

docket for this action, identified by

Docket ID Number EPA-R09-OAR2012-0398. The index to the docket for

this action is 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 in

the index, some information may be

publicly available only at the hard copy

location (e.g., copyrighted material), and

some may not be publicly available in

either location (e.g., CBI). To inspect the

hard copy materials, please schedule an

appointment during normal business

hours with the contact listed directly

below.

FOR FURTHER INFORMATION CONTACT:

Jeffrey Buss, Air Planning Office (AIR2), 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

II. EPA's Response to Comments

IL Final Action

IV. Statutory and Executive Order Reviews

I. Background

On July 18, 1997, EPA issued a

revised NAAQS for ozone I and a new

NAAQS for fine particulate matter

(PM2 .5). 2 EPA subsequently revised the

24-hour PM 2.

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.

On June 27, 2012 (77 FR 38239), EPA

proposed to approve in part and

disapprove in part several SIP revisions

submitted by the Arizona Department of

Environmental Quality (ADEQ) to

address the infrastructure requirements

of CAA section 110(a)(1) and (2) for the

1997 ozone, 1997 PM 2.5, and 2006 PM 2.

5

NAAQS. Additionally, on July 30, 2012

(77 FR 44551), EPA proposed to approve

the portion of the Arizona Infrastructure

SIP pertaining to section

110(a)(2)(D)(i)(I) concerning interstate

transport for the 2006 24-hour PM 2.

5

NAAQS. 4 Also on July 30, 2012 (77 FR

44555), EPA proposed to partially

approve and partially disapprove the

portion of the Arizona Infrastructure SIP

pertaining to the conflict of interest

provision in section 110(a)(2)(E)(ii).

ADEQ submitted SIP revisions to EPA

on September 18, 2008 ("2008

Infrastructure Analysis") and October

14, 2009 ("2009 Infrastructure

Analysis") to address all of the CAA

section 110(a)(2) requirements, except

1 The 8-hour averaging period replaced the

previous 1-hoar 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 PM 2.5 standard was set at 15

micrograms per cubic meter (pg/m3), based on the

3-year average of annual arithmetic mean PM 2.5

concentrations from single or multiple communityoriented monitors and the 24-hour PM 2.5 standard

was set at 65 pg/m 3, based on the 3-year average of

the 98th percentile of 24-hour PM 2.5 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 pg/m 3 to 35 pg/m 3 was published in

the Federal Register on October 17, 2006 (71 FR

61144).

4 EPA previously approved an earlier interstate

transport submittal by Arizona for the 1997 ozone

and 1997 PM2 .5 NAAQS at 72 FR 41629 (July 31,

2007).

for section 110(a)(2)(G), 5 and a proposed

SIP revision submitted on June 1, 2012.6

The proposed SIP served as a

supplement to the prior two

infrastructure SIP revisions and was

submitted under the parallel processing

mechanism provided by 40 CFR Part 51,

Appendix V, Section 2.3. The final

version of the June 1, 2012 proposed SIP

revision was adopted on August 24,

2012 and submitted to EPA on the same

day ("2012 Submittal").

We are taking final action on all three

submittals because they collectively

address the applicable infrastructure SIP

requirements for the 1997 ozone, 1997

PM 2.5, and 2006 PM 2.5 NAAQS. We refer

to them collectively herein as

"Arizona's Infrastructure SIP

Submittals."

The rationale supporting EPA's

actions, including the scope of

infrastructure SIPs in general, is

explained in the Notices of Proposed

Rulemakings (NPRs) and associated

technical support documents (TSDs) 7

and will not be restated here. The TSDs

are available online at

www.regulations.gov, Docket ID number

EPA-R09-OAR-2012-0398.

II. EPA's Response to Comments

The public comment period for our

proposal published in the Federal

Register on June 27, 2012 (77 FR 38239)

started at publication and closed on July

27, 2012. The public comment period

for our proposals of July 30, 2012 (77 FR

44551, concerning interstate transport

5 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). The final

rule for this action was signed on July 26, 2012.

While we are awaiting publication in the Federal

Register, a prepublication copy of that final rule is

available in the docket for today's rulemaking.

6 On June 14, 2012 ADEQ submitted a letter

requesting withdrawal of several statutes included

in the June 1, 2012 proposed SIP revision. See letter

dated June 14, 2012 from Eric C. Massey, Air

Quality Director, Arizona Department of

Environmental Quality, to Jared Blumenfeld,

Regional Administrator, EPA Region 9.

7 Each of our three proposed rules had an

associated TSD available at www.regulations.gov

under docket ID number EPA-R09-OAR-2012-

0398. The three TSDs are as follows: (1) "Technical

Support Document: Evaluation of Arizona's

Infrastructure SIP for the 1997 8-hour Ozone, the

1997 PM 2 .5, and the 2006 PM 2 .5 NAAQS," June 15,

2012 (document ID number EPA-R09-OAR-2012-

0398-0003); (2) "Technical Support Document for

EPA's Proposed Action on the State of Arizona's

2009 Infrastructure State Implementation Plan

(Transport Portion) for the 2006 24-hoar Fine

Particulate (PM2.5) National Ambient Air Quality

Standard," July 2012 (document ID number EPAR09-OAR-2012-0398-0033); and (3) "Technical

Support Document: EPA Evaluation of Arizona

Provisions for Section 110(a)(2)(E)(ii)/Section 128

Conflict of Interest Requirements," July 2012

(herein, "Section 128 TSD") (document ID number

EPA-R09-OAR-2012-0398-0075).
Federal Register/Vol. 77, No. 214/Monday, November 5, 2012/Rules and Regulations

for the 2006 24-hour PM 2.

5 NAAQS; and

77 FR 44555, concerning conflict of

interest requirements) started at

publication in the Federal Register on

July 30, 2012 and closed on August 29,

2012.

During the respective comment

periods we received one comment letter

from ADEQ ("ADEQ comment letter"),

which concerned the requirements of

CAA sections 110(a)(2)(E)(ii) and 128.8

In our July 30, 2012 notice on these

requirements (77 FR 44555), we

proposed to partially approve and

partially disapprove a SIP revision

submitted by ADEQ to address the

requirements of CAA section

110(a)(2)(E)(ii) for the 1997 ozone, 1997

PM2.5, and 2006 PM2.5 NAAQS (77 FR

44555). In particular, we proposed to

find that the statutes submitted by

ADEQ met nearly all the requirements

of CAA section 128, and therefore

proposed to partially approve the

submittal with respect to CAA section

110(a)(2)(E)(ii). However, with respect

to the air quality hearing boards in

Maricopa, Pima, and Pinal counties

[hereinafter "County Boards"], we

proposed to determine that the

provisions submitted by ADEQ in its

2009 and 2012 SIP revisions did not

adequately address all of the

requirements of CAA section 128(a)(1).

We have summarized the ADEQ

comment letter in three comments, and

have responded to each, below.

Comment #1: ADEQ disagrees with

EPA's assessment that the statutes and

regulations provided in its

supplementary submittal of June 1, 2012

do not apply to enforcement orders and

asks EPA to approve the State's

submittals with respect to CAA section

110(a)(2)(E)(ii). The State argues that the

statutes it submitted, "in particular ARS

[sections] 38-101 and 38-501 through

39-511, * * * apply to all public

agency officers and employees, whether

at the State, County, or City level" and

that ARS 38-503(B) forbids public

officers and employees having a conflict

of interest in any decision of the agency

from participating in that decision. In

other words, "[u]pon recusal of each

person with a conflict of interest, all of

the members remaining who are

authorized lawfully to make the

decision represent the public interest

and do not derive any significant

income from parties subject to the

permits or enforcement orders at issue."

ADEQ notes that ARS 49-478 ("Hearing

board") also applies to the counties and

8 For a copy of the comment letter, see document

number EPA-R09-OAR-2012-0398-0079 in

www.regulations.gov under docket ID EPA-R09-

OAR-2012-0398.

that there is "no gap in coverage of these

requirements" between the state statutes

and the county regulations. The State

highlights the disclosure provisions of

ARS 38-508, including the alternate

measures implemented when a conflict

exists, and notes that "not all conflicts

of interest can be identified or even

exist at the time of appointment to a

board or agency."

Response #1: As outlined in the TSD

for our proposal notice, we agree with

ADEQ that Arizona's conflict of interest

statutes (ARS Title 38, Chapter 3,

Article 8) 9 apply to all public agency

officers and employees, whether at the

State, County, or City level, that approve

permits or enforcement orders.

Furthermore, we agree that the term

"any decision of a public agency" in

Arizona under ARS 38-503(B)

encompasses the approval of both

permits and enforcement orders.

However, we do not agree that the board

membership requirements of section

128(a)(1) are adequately addressed by

the recusal requirement of ARS 38-

503(B). The plain language of section

128(a)(1) establishes requirements

regarding membership on a board, and

not merely a requirement regarding a

member's action on any particular

permit or enforcement order.

Section 128(a)(1) of the CAA

provides: "Each applicable plan shall

contain requirements that * * * any

board or body which approves permits

or enforcement orders under [the Act]

shall have at least a majority of members

who represent the public interest and do

not derive any significant portion of

their income from persons subject to

permits and enforcement orders under

[the Act]." Two elements of this

provision prevent it from being satisfied

by recusal alone.

First, the "public interest" and

"significant income" requirements of

section 128(a)(1) apply to a "majority of

members" of a "board or body which

approves permits or enforcement orders

under [the CAA]." The use of the plural

in "permits" and "orders" tends to

indicate that the relevant board or body

is defined by its authority to approve

permits and enforcement orders, and

not by the particular subset of the board

acting on a single given permit or

enforcement order. A board member

may recuse himself from a particular

9 EPA proposed to approve ARS Title 38, Chapter

3, Article 8 ("Conflict of Interest of Officers and

Employees") statutes on conflict of interest, as well

as several statutes related to hearing boards and

orders of abatement, into the Arizona SIP with

respect to the requirements of CAA section 128. For

the listing of the specific statutes, see 77 FR 44555

at 44558. The final rule approving these statutes

into the SIP is happening concurrent with today's

action.

permit or enforcement order proceeding

in order to avoid a conflict of interest

and yet remain a member of that board.

Under these circumstances, his conflict

of interest must still be considered in

determining whether the board as a

whole meets the majority membership

requirement of section 128(a)(1).

Second, the "significant portion of

income" requirement is determined by

reference to "persons subject to permits

or enforcement orders". A permit holder

is legally bound by a permit and is

therefore "subject to" it. Similar

reasoning applies to a person legally

bound by a final enforcement order.

Any reasonable interpretation of

"subject to" must at a minimum include

persons already legally bound by a final

permit or final enforcement order. Yet a

recusal requirement, such as that

provided by ARS 38-503(B), fails to

ensure that a majority of members do

not derive a significant portion of their

income from persons who already have

permits or are already under a final

enforcement order.

Thus, even assuming, for argument's

sake, that ARS 38-503(B) could meet

the "public interest" requirement of

section 128(a)(1), it clearly does not, by

itself, fulfill the "significant income"

requirement. This interpretation is

consistent with EPA's existing guidance

on Section 128. In particular, in 1978,

EPA issued a guidance memorandum 10

that suggested definitions of certain

terms in section 128. Although the

guidance did not specifically mention

recusal, it did suggest that the term

"persons subject to permits or

enforcement orders under this Act"

includes, among others, "any

individual, corporation, partnership, or

association who holds * * * any

permit, or who is * * * subject to any

enforcement order under the [Act]". In

other words, EPA's guidance

recommended that "persons subject to

permits or enforcement orders" should

include those persons legally bound to

a permit or enforcement order. The

guidance also suggested that the term

"majority of members" be defined as "a

majority of all members of a board or

body having or sharing authority to

approve permits or enforcement orders

under the [CAA], and a majority of

members making up any panel of fewer

than all members (including panels of a

single member) where individual

permits or orders are considered by

such a panel". Thus, EPA interprets the

statutory language of section 128(a)(1) as

10 Memorandum from David 0. Bickart, Deputy

General Counsel, to Regional Air Directors,

"Guidance to States for Meeting Conflict of Interest

Requirements of Section 128," March 2, 1978.

66399
66400 Federal Register/Vol. 77, No. 214/Monday, November 5, 2012/Rules and Regulations

requiring a majority of members of the

entire board to meet the public interest

and significant income requirements.

EPA's guidance reflected that reading of

the statute.

While we agree that, at the time of

appointment to a board or agency, it is

not possible to identify future conflicts

of interest that may result from future

permits or enforcement orders, we note

that it is possible to identify a

prospective or current board member's

interest in current permit holders and

persons currently under final

enforcement orders. Thus, this

particular part of ADEQ's comment

letter is not directly relevant to the

deficiency in question.

Arizona's conflict of interest statutes

thus leave a gap with respect to the CAA

section 128(a)(1) requirement that

boards that approve permits or

enforcement orders have "at least a

majority of members who represent the

public interest and do not derive any

significant portion of their income from

persons subject to permits and

enforcement orders under [the Act]."

However, Arizona's county hearing

board statute, ARS 49-478, which we

proposed to approve and thus to

incorporate into the Arizona SIP,

requires that, for county air quality

hearing boards, "[a]t least three [of five]

members shall not have a substantial

interest, as defined in [ARS] 38-502, in

any person required to obtain a permit

pursuant to this article." Thus, ARS 49-

478 partially fills the gap between the

Arizona conflict of interest statutes and

the board membership requirements of

CAA section 128(a)(1) by establishing a

majority membership requirement.

As noted in our proposal, Pima

County Code 17.04.190 extends this

majority membership requirement to

interests in persons subject to

enforcement orders. See 77 FR 44555 at

44557. Such a provision could be

submitted for incorporation into the

Arizona SIP. However, Arizona has not

submitted this or other provisions for

incorporation into the SIP that would

require that a majority of members of

the County Boards represent the public

interest and do not derive any

significant portion of their income from

persons subject to enforcement orders.

Therefore, we are finalizing our partial

approval and narrow, partial

disapproval as proposed.

Comment #2: ADEQ states that EPA

failed to comply with section 552 of the

Administrative Procedure Act (APA),

which requires publication in the

Federal Register of amendments and

revisions to substantive rules of general

applicability and statements of general

policy or interpretations of general

applicability formulated and adopted by

the agency. Specifically, ADEQ asserts

that EPA has not issued guidance of

general applicability on CAA section

128 since 1978 and that the 1978

guidance memo was "severely lacking."

The State references footnote #5 of our

proposal (see 77 FR 44555 at 44556) and

states that "EPA lacks authority to

single out Arizona and create specific

retroactive guidance applicable to it,

after [Arizona] has submitted the

required SIP and SIP Supplement(s)"

and that EPA bears responsibility to be

transparent and predictable in the

planning process. ADEQ states that EPA

proposes to change certain

interpretations of section 128 by

proposing interpretations on a "case-bycase basis for individual states" and that

such a process violates APA section

552. Finally, by reference to EPA's

infrastructure SIP rulemaking on Hawaii

that we cited in our Arizona section 128

proposal, ADEQ states that EPA did not

provide public notice and opportunity

to comment on proposed amendments

or revisions to the 1978 guidance.

Response #2: We do not agree that our

action violates the APA. While EPA

understands ADEQ's interest in having

EPA issue comprehensive, generally

applicable guidance on section 128, it is

not always possible to anticipate all

potential issues or questions that may

arise in reviewing SIP submittals in

advance of the deadlines for such SIP

submittals. Therefore, it is often

necessary for EPA to make certain

judgments about proper application of

the statutory requirements of the CAA

on a case-by-case basis, as it acts on

individual SIP submissions. The noticeand-comment rulemaking procedures

followed by EPA in acting on SIP

submissions allow for states and other

interested parties to weigh in on these

case-by-case judgments. This process is

what naturally follows when EPA issues

guidance making recommendations

concerning how states could correctly

comply with the statute, but new issues

arise in the application of the guidance

in rulemaking on a SIP submission.

In this case, the interpretations

referred to in our proposal and set out

in our TSD I" were intended to clarify

11 Footnote 3 of ADEQ's comment letter indicates

that ADEQ was unable to find explanation of EPA's

reasoning in the TSD. It appears that ADEQ was

looking at the more general TSD associated with the

earlier proposal on other portions of Arizona's

infrastructure SIP (i.e., 77 FR 38239, June 27, 2012,

docket ID EPA-R09-OAR-2012-0398, document

number EPA-R09-OAR-2012-0398-0003) rather

than the separate Section 128 TSD, which was

available at www.regulations.gov (i.e., document

number EPA-R09-OAR-2012-0398-0075, under

the same docket ID). Thus, while this

misunderstanding is unfortunate, we disagree that

previously issued guidance pertaining

to section 128 in relation to the Arizona

infrastructure SIP. In particular, we

wished to clarify that the requirements

of 128(a)(1) apply only to boards or

bodies composed of multiple

individuals and do not apply where a

single individual approves permits or

enforcement orders under the CAA. As

explained in the TSD for our proposal,

this interpretation derives from the text

of section 128 itself (see TSD at pages

1-3). However, the 1978 memorandum

suggests a definition of "board or body"

that includes "any individual * * *

authorized to approve permits or

enforcement orders under the Clean Air

Act." In Arizona's case, a strict

adherence to the recommendations of

the guidance would have rendered the

Director of ADEQ, the state

administrative law judges and the

county controls officers all subject to the "public interest" and "significant

income" requirements of 128(a)(1). As

explained in the TSD for our proposal,

this interpretation seems inconsistent

with the plain language of the statute;

we therefore instead proposed and took

comment on the interpretation that

subsection 128(a)(1) should not apply to

heads of executive agencies who

approve permits or enforcement orders.

Similarly, the other interpretations of

the statute set forth in our TSD were

intended to clarify ambiguities left by

the recommendations of the 1978

guidance, so that we could properly

evaluate Arizona's submittal under the

requirements of the Act.

While we do not necessarily agree

that these interpretations are subject to

the requirements of APA section 552,

we note that our proposal, as published

in the Federal Register, specifically

referred to these interpretations (see 77

FR 44555 at 44556), and that we

explained these interpretations in detail

in the TSD available in the docket for

our proposal (see TSD at pages 1-3).

Moreover, the proposed interpretations

in our proposal on Arizona are

consistent with other recent notices that

EPA has published in the Federal

Register. 12

Comment #3: ADEQ claims that

compliance with "EPA's unauthorized

amendment or revision to its 1978

guidance is practically infeasible"

because EPA's "revised or amended

interpretation has not occurred until

after the 2012 legislature has

adjourned." As such, the State claims

our TSD was "lacking clarity" or that our

explanation did "not appear under that specific

section in the TSD," as asserted by ADEQ.

12E.g., 77 FR 21913, April 12, 2012 (for Hawaii);

and 77 FR 22540, April 16, 2012 (for North Dakota).
Federal Register/Vol. 77, No. 214/Monday, November 5, 2012/Rules and Regulations

that it did not have the opportunity to

revise its statutes or amend its prior

submittal of October 14, 2009 or parallel

process submittal of June 1, 2012 prior

to the submittal deadline.

Response #3: For the reasons

explained in Response #2, we disagree

with ADEQ's assertion that EPA has

made "unauthorized amendment or

revision to its 1978 guidance." With

respect to ADEQ's argument regarding

timing of the legislative session and

opportunity to revise statutes or SIP

submittals, we disagree that compliance

with CAA section 128, in light of the

1978 guidance and the clarifying

interpretations presented in our

proposal, is practically infeasible, to the

extent that "practical infeasibility" is

even an allowable consideration in

EPA's action on a SIP submission.

Our final, partial disapproval triggers

a two-year deadline for EPA to

promulgate a federal implementation

plan (FIP) for the identified deficiency.

However, the State can remedy the

deficiency prior to such FIP

promulgation. If ADEQ can submit a SIP

revision that meets EPA approval within

the next two years, EPA's obligation to

promulgate a FIP would be discharged.

As noted in the TSD, the CAA

requires that section 128 must be

implemented through SIP-approved,

federally enforceable provisions.

However, the Act does not prescribe the

exact means of implementation. The

state and counties now have the

opportunity to consider statutory or

regulatory revisions to submit to EPA as

a SIP revision to remedy this narrow

deficiency. We stand ready to work with

ADEQ and Maricopa, Pima, and Pinal

counties to develop this revision.

III. Final Action

EPA is approving in part and

disapproving in part the Arizona

Infrastructure SIP Submittals for the

1997 ozone, 1997 PM 2.

5, and 2006 PM 2.5

NAAQS. EPA is approving the Arizona

Infrastructure SIP with respect to the

following 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)(i)(I): Interstate

transport (for 2006 24-hour PM 2.5

NAAQS).13 14

13 EPA previously approved an earlier SIP

submission from Arizona as fully satisfying the

interstate transport SIP requirements of CAA

section 110(a)(2)(D)(i) for the 1997 ozone and 1997

PM2.5 NAAQS. 72 FR 41629 (July 31, 2007).

* 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)(ii) (in part):

Conflict of interest.

* Section 110(a)(2)(E)(iii): State

oversight of local or regional

government agencies.

* Section 110(a)(2)(F)(in part):

Stationary source monitoring and

reporting.

* Section 110(a)(2)(G): Emergency

episodes (for 1997 and 2006 PM2.5).

* Section 110(a)(2)(H): SIP revisions.

* Section 110(a)(2)(J) (in part):

Consultation with government officials

and public notification.

* Section 110(a)(2)(L): Permitting

fees.

* Section 110(a)(2)(M): Consultation/

participation by affected local entities.

In addition, we are approving into the

SIP certain statutory and regulatory

provisions included in the 2009

Infrastructure SIP. These are discussed

further in our proposal notices,

accompanying TSDs, and in Arizona's

August 24, 2012 submittal, all available

in the docket for today's action.

Simultaneously, EPA is disapproving

Arizona's Infrastructure SIP submittals

for 1997 ozone, 1997 PM2 .5 , and 2006

PM 2.

5 NAAQS 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 (prevention

of significant deterioration (PSD)).

* Section 110(a)(2)(D)(i)(II): Provision

to prohibit interference with other

states' PSD measures (for 2006 24-hour

PM 2.

5 NAAQS). 1 5

14 With respect to Arizona's section

110(a)(2)(D)(i)(I) interstate transport SIP submission

for the 2006 24-hour PM 2 .5 NAAQS, the recent

opinion vacating the Transport Rule, EME Homer

City Generation v. EPA, No. 11-1302 (D.C. Cir.,

August 21, 2012), does not alter our conclusion that

the existing Arizona SIP adequately addresses this

requirement. Nothing in the Homer City opinion

disturbs or calls into question that conclusion or the

validity of the technical information on which our

July 30, 2012 proposal (77 FR 44551) relied-e.g.,

ambient PM 2 .5 levels at monitoring sites

representative of regional background in nearby

states and relevant meteorological and

topographical information. In addition, nothing in

that opinion undermines our proposed conclusion,

based on our review of the available technical

information, that emissions from Arizona do not

significantly contribute to nonattainment or

interfere with maintenance of the 2006 24-hour

PM 2.5 NAAQS in another state.

15 EPA previously approved an earlier SIP

submission from Arizona as fully satisfying the

interstate transport SIP requirements of CAA

section 110(a)(2)(D)(i) for the 1997 ozone and 1997

PM2.5 NAAQS. 72 FR 41629 (July 31, 2007).

* Section 110(a)(2)(D)(ii) (in part):

Interstate pollution abatement and

international air pollution.

* Section 110(a)(2)(E)(ii) (in part):

Conflict of interest.

* Section 110(a)(2)(F) (in part):

Stationary source monitoring and

reporting.

* Section 110(a)(2)(J) (in part): PSD.

* Section 110 (a)(2)(K): Air quality

modeling and submission of monitoring

data.

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 PM 2.5 and 8-

hour ozone NAAQS and 2006 PM 2.5

NAAQS], Parallel Processing Version"

("2012 Supplement"). The 2012

Supplement included a number of

statutes and regulations that were

effective under state law but had not

been adopted specifically for submittal

to EPA as a SIP revision under CAA

section 110. On August 24, 2012, ADEQ

provided EPA with evidence that the

laws and regulations in the 2012

Supplement have been adopted

specifically for submittal to EPA as a

SIP revision with the exception of two

Pima County regulations (rules

17.12.040 and 17.24.040). As explained

in our notice of proposed rulemaking,

our proposed approval of CAA section

110(a)(2)(F) was contingent upon receipt

of fully adopted versions of the two

Pima County regulations discussed

above. We proposed 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 did not submit the two Pima

County regulations as SIP revisions

following all required state and local

procedures. 16 Consequently, in the

absence of the aforementioned Pima

County regulations, we are disapproving

Arizona's infrastructure SIP for section

110(a)(2)(F) with respect to Pima

County.

As explained in the NPRs and TSD,

our disapprovals related to sections

110(a)(2)(C), (D)(i)(II), (D)(ii), (J), and (K)

result from the conclusion that the

Arizona SIP does not fully satisfy the

statutory and regulatory requirements

for PSD permit programs under part C

of title I of the Act. For these

disapprovals, both the Maricopa County

Air Quality Department and the Pima

County Department of Environmental

Quality currently implement the Federal

PSD program in 40 CFR 52.21 for all

regulated NSR pollutants, pursuant to

delegation agreements with EPA. 40

16 See 77 FR 38239, 38244 (June 27, 2012).

66401
66402 Federal Register/Vol. 77, No. 214/Monday, November 5, 2012/Rules and Regulations

CFR 52.144.17 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 18 (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 19 (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.20

EPA takes a disapproval of a state

plan very seriously. Rather than

implement a FIP, we believe that it is

preferable, and preferred in the

provisions of the Clean Air Act, for

states to implement the CAA

requirements through state provisions

that are developed and adopted by the

state and approved into the SIP by EPA.

A state plan need not contain exactly

the same provisions that EPA might

require, but EPA must be able to find

that the state plan is consistent with the

requirements of the Act, in accordance

with its obligations under section

110(k). Further, EPA's oversight role

17 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 [Maricopa County]," 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.

18 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. EPAArizona 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.

19 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. 20 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.

requires that it assure consistent

implementation of Clean Air Act

requirements by states across the

country, even while acknowledging that

individual decisions from source to

source or state to state may not have

identical outcomes. EPA believes these

disapprovals are the only path that is

consistent with the Act at this time.

Under section 179(a) of the CAA, final

disapproval of a submittal that

addresses a requirement of part D of 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 Arizona

Infrastructure SIP was not submitted to

meet either of these requirements.

Therefore, our partial disapproval of

Arizona's Infrastructure SIP Submittals

does not trigger mandatory sanctions

under CAA section 179.

In addition, CAA section 110(c)(1)

provides that EPA must promulgate a

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. For the reasons provided in our

proposed rules and associated TSDs,

and in our responses to comments

above, EPA is partially disapproving

Arizona's Infrastructure SIP Submittals

based on our conclusion that it does not

fully satisfy the following CAA section

110(a) requirements: (1) With respect to

those areas under ADEQ and Pinal

County jurisdiction, the PSD program

requirements of CAA sections 110 (a) (2) (C), 110 (a) (2) (D) (i) (11),

110(a)(2)(D)(ii), 110(a)(2)(J), and

110(a)(2)(K) regarding regulation of

nitrogen oxides (NOx) as an ozone

precursor, regulation of fine particulate

matter (PM2.

5 ), interstate pollution

abatement, and air quality models and

modeling data; (2) with respect to the air

quality hearing boards in Maricopa,

Pima, and Pinal counties, the

requirements of CAA section

110(a)(2)(E)(ii) respecting board

composition requirements under CAA

section 128(a)(1); and (3) with respect to

Pima County, the requirements of CAA

section 110(a)(2)(F) regarding stationary

source monitoring and reporting. Our

partial disapproval of Arizona's

Infrastructure SIP Submittals based on

these deficiencies triggers an obligation

on EPA to promulgate a FIP under CAA

section 110(c), unless Arizona submits

and EPA approves SIP revisions

correcting the identified deficiencies

within two years of the effective date of

this final rule. We encourage the state to

submit a SIP revision to address the

deficiencies identified in this final rule

and we stand ready to work with the

state to develop a revised plan.

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

partial approval and partial disapproval

of SIP revisions under CAA section 110

will not in-and-of itself create any new

information collection burdens but

simply approves certain State

requirements, and disapproves certain

other State requirements, for inclusion

into the SIP. Burden is defined at 5 CFR

1320.3(b).

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA)

generally requires an agency to conduct

a regulatory flexibility analysis of any

rule subject to notice and comment

rulemaking requirements unless the

agency certifies that the rule will not

have a significant economic impact on

a substantial number of small entities.

Small entities include small businesses,

small not-for-profit enterprises, and

small governmental jurisdictions. For

purposes of assessing the impacts of

today's rule on small entities, small

entity is defined as: (1) A small business

as defined by the Small Business

Administration's (SBA) regulations at 13

CFR 121.201; (2) a small governmental

jurisdiction that is a government of a

city, county, town, school district or

special district with a population of less

than 50,000; and (3) a small

organization that is any not-for-profit

enterprise which is independently

owned and operated and is not

dominant in its field.

After considering the economic

impacts of today's rule on small entities,

I certify that this action will not have a

significant impact on a substantial

number of small entities. This rule does

not impose any requirements or create

impacts on small entities. This partial

SIP approval and partial SIP

disapproval under CAA section 110 will

not in-and-of itself create any new

requirements but simply approves

certain State requirements, and
Federal Register/Vol. 77, No. 214/Monday, November 5, 2012/Rules and Regulations

disapproves certain other State

requirements, for inclusion into the SIP.

Accordingly, it affords no opportunity

for EPA to fashion for small entities less

burdensome compliance or reporting

requirements or timetables or

exemptions from all or part of the rule.

Therefore, this action will not have a

significant economic impact on a

substantial number of small entities.

D. Unfunded Mandates Reform Act

This action contains no Federal

mandates under the provisions of Title

II of the Unfunded Mandates Reform

Act of 1995 (UMRA), 2 U.S.C. 1531-

1538 for State, local, or tribal

governments or the private sector. EPA

has determined that the partial approval

and partial disapproval action does not

include a Federal mandate that may

result in estimated costs of $100 million

or more to either State, local, or tribal

governments in the aggregate, or to the

private sector. This action approves

certain pre-existing requirements, and

disapproves certain other pre-existing

requirements, under State or local law,

and imposes no new requirements.

Accordingly, no additional costs to

State, local, or tribal governments, or to

the private sector, result from this

action.

E. Executive Order 13132, Federalism

Executive Order 13132, entitled

"Federalism" (64 FR 43255, August 10,

1999), requires EPA to develop an

accountable process to ensure "meaningful and timely input by State

and local officials in the development of

regulatory policies that have federalism

implications." "Policies that have

federalism implications" is defined in

the Executive Order to include

regulations that have "substantial direct

effects on the States, on the relationship

between the national government and

the States, or on the distribution of

power and responsibilities among the

various levels of government."

This action does not have federalism

implications. It will not have substantial

direct effects on the States, on the

relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132, because it

merely approves certain State

requirements, and disapproves certain

other State requirements, for inclusion

into the SIP and does not alter the

relationship or the distribution of power

and responsibilities established in the

Clean Air Act. Thus, Executive Order

13132 does not apply to this action.

F. Executive Order 13175, Coordination

With Indian Tribal Governments

This action does not have tribal

implications, as specified in Executive

Order 13175 (65 FR 67249, November 9,

2000), because the SIP on which EPA is

taking action would not apply in Indian

country located in the state, and EPA

notes that it will not impose substantial

direct costs on tribal governments or

preempt tribal law. Thus, Executive

Order 13175 does not apply to this

action.

G. Executive Order 13045, Protection of

Children From Environmental Health

Risks and Safety Risks

EPA interprets EO 13045 (62 FR

19885, April 23, 1997) as applying only

to those regulatory actions that concern

health or safety risks, such that the

analysis required under section 5-501 of

the EO has the potential to influence the

regulation. This action is not subject to

EO 13045 because it is not an

economically significant regulatory

action based on health or safety risks

subject to Executive Order 13045 (62 FR

19885, April 23, 1997). This partial

approval and partial disapproval under

CAA section 110 will not in-and-of itself

create any new regulations but simply

approves certain State requirements,

and disapproves certain other State

requirements, for inclusion into the SIP.

H. Executive Order 13211, Actions That

Significantly Affect Energy Supply,

Distribution, or Use

This rule is not subject to Executive

Order 13211 (66 FR 28355, May 22,

2001) because it is not a significant

regulatory action under Executive Order

12866.

L National Technology Transfer and

Advancement Act

Section 12(d) of the National

Technology Transfer and Advancement

Act of 1995 ("NTTAA"), Public Law.

104-113, 12(d) (15 U.S.C. 272 note)

directs EPA to use voluntary consensus

standards in its regulatory activities

unless to do so would be inconsistent

with applicable law or otherwise

impractical. Voluntary consensus

standards are technical standards (e.g.,

materials specifications, test methods,

sampling procedures, and business

practices) that are developed or adopted

by voluntary consensus standards

bodies. NTTAA directs EPA to provide

Congress, through OMB, explanations

when the Agency decides not to use

available and applicable voluntary

consensus standards.

The EPA 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.

K. Congressional Review Act

The Congressional Review Act, 5

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

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA will submit a

report containing this rule and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of the rule in

the Federal Register. A major rule

cannot take effect until 60 days after it

is published in the Federal Register.

This action is not a "major rule" as

defined by 5 U.S.C. section 804(2). This

rule will be effective on December 5,

2012.

L. Petitions for Judicial Review

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

Air Act, petitions for judicial review of

this action must be filed in the United

States Court of Appeals for the

appropriate circuit by January 4, 2013.

Filing a petition for reconsideration by

the Administrator of this final rule does

not affect the finality of this rule for the

purposes of judicial review nor does it

extend the time within which a petition

for judicial review may be filed, and

shall not postpone the effectiveness of

such rule or action. This action may not

be challenged later in proceedings to

enforce its requirements (see section

307(b)(2)).

66403
66404 Federal Register/Vol. 77, No. 214/Monday, November 5, 2012/Rules and Regulations

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Incorporation by

reference, Intergovernmental relations,

Oxides of nitrogen, Ozone, Particulate

matter, Reporting and recordkeeping

requirements, Volatile organic

compounds.

Dated: September 28, 2012.

Jared Blumenfeld,

Regional Administrator, Region IX.

Part 52, Chapter I, Title 40 of the Code

of Federal Regulations is amended as

follows:

PART 52-[AMENDED]

m 1. The authority citation for Part 52

continues to read as follows:

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

Subpart D-Arizona

* 2. Section 52.120 is amended by

adding paragraphs (c)(152) (ii) and

(c)(153) to read as follows:

§52.120 Identification of plan.

(c) * * *

(152) * * *

(i) * * *

(ii) Additional materials.

(A) Arizona Department of

Environmental Quality.

(1) "Final Supplement to the Arizona

State Implementation Plan under Clean

Air Act Section 110(a)(1) and (2):

Implementation of 2006 PM 2.5 National

Ambient Air Quality Standards, 1997

PM 2.5 National Ambient Air Quality

Standards, and 1997 8-Hour Ozone

National Ambient Air Quality

Standards," August 2012, adopted by

the Arizona Department of

Environmental Quality on August 24,

2012, excluding the appendices.

(2) Arizona Revised Statutes (West's,

2011-2012 Compact Edition):

(i) Title 28 (transportation), chapter 7

(certification of title and registration),

article 5 (registration requirements

generally), section 28-2153

("Registration requirement; exceptions;

assessment; violation; classification");

(ii) Title 35 (public finances), chapter

2 (handling of public funds), article 2

(state management of public monies),

section 35-313 ("Investment of trust

and treasury monies; loan of

securities");

(iii) Title 38 (public officers and

employees), chapter 1 (general

provisions), article 1 (definitions),

section 38-101 ("Definitions") and

article 8 (conflict of interest of officers

and employees), sections 38-501

("Application of article"), 38-502

("Definitions"), 38-503 ("Conflict of

interest; exemptions; employment

prohibition"), 38-504 ("Prohibited

acts"), 38-505 ("Additional income

prohibited for services") 38-506

("Remedies"), 38-507 ("Opinions of the

attorney general, county attorneys, city

or town attorneys and house and senate

ethics committee"), 38-508 ("Authority

of public officers and employees to

act"), 38-509 (Filing of disclosures"),

38-510 ("Penalties"), and 38-511

("Cancellation of political subdivision

and state contracts; definition");

(iv) Title 49 (the environment),

chapter 1 (general provisions), article 1

(department of environmental quality),

section 49-103 ("Department

employees; legal counsel"), subsections

(A)(2), (A)(4), (B)(3), and (B)(5) of

section 49-104 ("Powers and duties of

the department and director"), and

sections 49-106 ("Statewide application

of rules") and 49-107 ("Local delegation

of state authority");

(v) Title 49 (the environment), chapter

3 (air quality), article 1 (general

provisions), section 49-405

("Attainment area designations"); article

2 (state air pollution control), sections

49-421 ("Definitions"), 49-422

("Powers and duties"), 49-424 ("Duties

of department"), 49-425 ("Rules;

hearing"), 49-433 ("Special inspection

warrant"), 49-435 ("Hearings on orders

of abatement"), and 49-441

("Suspension and revocation of

conditional order"), subsections (A) and

(B)(2) of section 49-455 ("Permit

administration fund"), and sections 49-

460 ("Violations; production of

records"), 49-461 ("Violations; order of

abatement"), 49-462 ("Violations;

injunctive relief"), 49-463 ("Violations;

civil penalties"), and 49-465 ("Air

pollution emergency"); and article 3

(county air pollution control), sections

49-471 ("Definitions"), 49-473 ("Board

of supervisors"), 49-474 ("County

control boards"), 49-476.01

("Monitoring"), 49-478 ("Hearing

board"), 49-479 ("Rules; hearing"), 49-

480.02 ("Appeals of permit actions"),

49-482 ("Appeals to hearing board"),

49-488 ("Special inspection warrant"),

49-490 ("Hearings on orders of

abatement"), 49-495 ("Suspension and

revocation of conditional order"), 49-

502 ("Violation; classification"), 49-510

("Violations; production of records"),

49-511 ("Violations; order of

abatement"), 49-512 ("Violations;

injunctive relief"), and 49-513

("Violations; civil penalties").

(153) The following plan was

submitted on October 14, 2009, by the

Governor's designee.

(i) [Reserved]

(ii) Additional materials.

(A) Arizona Department of

Environmental Quality.

(1) "Arizona State Implementation

Plan Revision under Clean Air Act

Section 110(a)(1) and (2):

Implementation of 2006 PM 2.5 National

Ambient Air Quality Standards, 1997

PM 2.5 National Ambient Air Quality

Standards, and 1997 8-Hour Ozone

National Ambient Air Quality

Standards," September 2009, adopted

by the Arizona Department of

Environmental Quality on October 14,

2009, excluding the appendices.

* 3. Section 52.123 is amended by

adding paragraphs (1), (in), and (n) to

read as follows:

§ 52.123 Approval status.

(1) 1997 8-hour ozone NAAQS: The

SIPs submitted on October 14, 2009 and

August 24, 2012 are fully or partially

disapproved for Clean Air Act (CAA)

elements 110(a)(2)(C), (D)(ii), (J) and (K)

for all portions of the Arizona SIP; for

CAA element 110(a)(2)(E)(ii) for the

Maricopa County, Pima County, and

Pinal County portions of the Arizona

SIP; and for CAA element 110(a)(2)(F)

for the Pima County portion of the

Arizona SIP.

(in) 1997 PM2 .5 NAAQS: The SIPs

submitted on October 14, 2009 and

August 24, 2012 are fully or partially

disapproved for Clean Air Act (CAA)

elements 110(a)(2)(C), (D)(ii), (J) and (K)

for all portions of the Arizona SIP; for

CAA element 110(a)(2)(E)(ii) for the

Maricopa County, Pima County, and

Pinal County portions of the Arizona

SIP; and for CAA element 110(a)(2)(F)

for the Pima County portion of the

Arizona SIP.

(n) 2006 PM2 .5 NAAQS: The SIPs

submitted on October 14, 2009 and

August 24, 2012 are fully or partially

disapproved for Clean Air Act (CAA)

elements 110(a)(2)(C), (D)(i)(II) (interfere

with measures in any other state to

prevent significant deterioration of air

quality), (D)(ii), (J) and (K) for all

portions of the Arizona SIP; for CAA

element 110(a)(2)(E)(ii) for the Maricopa

County, Pima County, and Pinal County

portions of the Arizona SIP; and for

CAA element 110(a)(2)(F) for the Pima

County portion of the Arizona SIP.

[FR Doe. 2012-26322 Filed 11-2-12; 8:45 am]

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