6560-50

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2012-0913; FRL-]

Partial Disapproval of State Implementation Plan; Arizona;

Regional Haze Requirements Under 40 CFR 51.309

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA is proposing to disapprove in part revisions to the

Arizona State Implementation Plan (SIP) to implement the regional

haze program addressing visibility impairment in mandatory Class 

I areas covered by the requirements related to the Grand Canyon 

Visibility Transport Commission, an optional program for certain 

western states. These SIP revisions were submitted to address 

the requirements of the Clean Air Act (CAA or Act) requiring

states to prevent any future and remedy any existing impairment 

of visibility in mandatory Class I areas caused by man-made 

pollution. We are taking comments on this proposal and plan to 

follow with a final action. 

DATE: Any comments must be received on or before [Insert date 30

days from the date of publication in the Federal Register].

ADDRESSES: Submit comments, identified by docket number EPA-R09-

OAR-2012-0913, by one of the following methods:

1. Federal eRulemaking Portal: www.regulations.gov. Follow the 

on-line instructions.
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2. E-mail: steckel.andrew@epa.gov.

3. Mail or deliver: Andrew Steckel (Air-4), U.S. Environmental 

Protection Agency Region IX, 75 Hawthorne Street, San 

Francisco, CA 94105-3901.

Instructions: All comments will be included in the public docket 

without change and may be made available online at 

www.regulations.gov, including any personal information provided, 

unless the comment includes Confidential Business Information 

(CBI) or other information whose disclosure is restricted by 

statute. Information that you consider CBI or otherwise 

protected should be clearly identified as such and should not be 

submitted through www.regulations.gov or e-mail. 

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 e-mail directly to 

EPA, your e-mail 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 
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only at the hard copy location (e.g., copyrighted material, large

maps), and some may not be publicly available in either location 

(e.g., CBI). To inspect the hard copy materials, please schedule

an appointment during normal business hours with the contact 

listed in the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Andrew Steckel, EPA Region IX, 

(415) 947-4115. 

SUPPLEMENTARY INFORMATION: Throughout this document, “we,” “us”

and “our” refer to EPA.

Table of Contents 

I. Overview of Proposed Action

II. Background

A. What is Regional Haze?

B. Clean Air Act, Visibility Impairment, and Regional Haze

C. Grand Canyon Visibility Transport Commission and the 

Regional Haze Regulations

D. Legal Challenge and Revision of 309 Regulations

E. State Submittals and Previous EPA Actions 

F. EPA Approval of Burning and Smoke Management Rules 

III. The State Submittal

A. What is the Purpose of the State’s Submittal?

B. What did the State Submit?

IV. EPA’s Evaluation and Proposed Action

A. How is EPA Evaluating the Submittal?
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B. Does the Submittal Meet the Evaluation Criteria?

C. Proposed Action and Public Comment.

V. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review 

B. Paperwork Reduction Act

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act

E. Executive Order 13132, Federalism

F. Executive Order 13175, Coordination with Indian Tribal 

Governments

G. Executive Order 13045, Protection of Children from 

Environmental Health Risks and Safety Risks

H. Executive Order 13211, Actions that Significantly 

Affect Energy Supply, Distribution, or Use

I. National Technology Transfer and Advancement Act

J. Executive Order 12898: Federal Actions to Address 

Environmental Justice in Minority Populations and Low-Income

Population

I. Overview of Proposed Action

The Arizona Department of Environmental Quality (ADEQ) is 

the state agency in Arizona responsible for air quality planning.

ADEQ submitted a SIP revision on December 24, 2008 (which 

consisted of materials previously submitted on December 23, 2003 

and December 30, 2004) to address the regional haze regulations 
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at 40 CFR 51.309 regarding visibility impairment in mandatory 

Class I areas covered by the Grand Canyon Visibility Transport 

Commission (GCVTC) Report. In this action, pursuant to CAA

Section 110, EPA is proposing to disapprove in part this regional

haze SIP submittal because it does not meet the requirements of 

40 CFR 51.309. This proposed action is a partial disapproval 

because EPA previously approved certain burning and smoke 

management rules that were part of the 2008 SIP submittal. 

II. Background

A. What is Regional Haze?

Regional haze is visibility impairment that is produced by a 

multitude of sources and activities that are located across a 

broad geographic area and emit fine particulates (e.g., sulfates,

nitrates, organic carbon (OC), elemental carbon (EC), and soil 

dust), and their precursors (e.g., sulfur dioxide (SO2), nitrogen 

oxides (NOx), and in some cases, ammonia (NH3) and volatile 

organic compounds (VOC)). Fine particle precursors react in the 

atmosphere to form particulate matter (PM), which impairs 

visibility by scattering and absorbing light. Visibility 

impairment reduces the clarity, color, and visible distance that 

one can see. PM can also cause serious health effects and 

mortality in humans and contributes to environmental effects such

as acid deposition and eutrophication. 

Data from the existing visibility monitoring network, the 
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“Interagency Monitoring of Protected Visual Environments” 

(IMPROVE) monitoring network, show that visibility impairment 

caused by air pollution occurs virtually all the time at most 

national parks (NPs) and wilderness areas (WAs). The average 

visual range1 in many Class I areas (i.e., NPs and memorial 

parks, WAs, and international parks meeting certain size 

criteria) in the western United States is 100-150 kilometers, or 

about one-half to two-thirds of the visual range that would exist

without anthropogenic air pollution. In most of the eastern 

Class I areas of the United States, the average visual range is 

less than 30 kilometers, or about one-fifth of the visual range 

that would exist under estimated natural conditions. 64 FR 35715

(July 1, 1999).

B. Clean Air Act, Visibility Impairment, and Regional Haze 

In section 169A of the 1977 Amendments to the CAA, Congress 

created a program for protecting visibility in the nation’s 

national parks and wilderness areas. This section of the CAA 

establishes as a national goal the “prevention of any future, and

the remedying of any existing, impairment of visibility in 

mandatory Class I Federal areas2 which impairment results from 

 

1 Visual range is the greatest distance, in kilometers or miles, at which a 

dark object can be viewed against the sky.

2 Areas designated as mandatory Class I Federal areas consist of national 

parks exceeding 6000 acres, wilderness areas and national memorial parks 

exceeding 5000 acres, and all international parks that were in existence on 

August 7, 1977. 42 U.S.C. 7472(a). In accordance with section 169A of the 

CAA, EPA, in consultation with the Department of Interior, promulgated a list 

of 156 areas where visibility is identified as an important value. 44 FR 
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manmade air pollution.” EPA promulgated regulations on December 

2, 1980, to address visibility impairment in Class I areas that 

is “reasonably attributable” to a single source or small group of

sources, i.e., “reasonably attributable visibility impairment.” 

45 FR 80084 (December 2, 1980). These regulations at 40 CFR 

51.300 – 307 represented the first phase in addressing visibility

impairment. EPA deferred action on regional haze that emanates 

from a variety of sources until monitoring, modeling and 

scientific knowledge about the relationships between pollutants 

and visibility impairment were improved. 

As part of the 1990 Amendments to the CAA, Congress added 

section 169B to focus attention on regional haze issues. EPA 

promulgated a rule to address regional haze on July 1, 1999. 64 

FR 35714 (July 1, 1999) codified at 40 CFR part 51, subpart P 

(Regional Haze Rule). EPA’s Regional Haze Rule provides two 

paths to address regional haze. One is through 40 CFR 51.308, 

which requires states to submit a SIP that establishes reasonable

progress goals and a long-term strategy for achieving those 

goals. During the first implementation period for the Regional 

Haze Program (through 2018), states must also impose best 

 

69122 (November 30, 1979). The extent of a mandatory Class I area includes 

subsequent changes in boundaries, such as park expansions. 42 U.S.C. 7472(a).

Although states and tribes may designate as Class I additional areas which 

they consider to have visibility as an important value, the requirements of 

the visibility program set forth in section 169A of the CAA apply only to 

“mandatory Class I Federal areas.” Each mandatory Class I Federal area is the

responsibility of a “Federal Land Manager.” 42 U.S.C. 7602(i). When we use 

the term “Class I area” in this action, we mean a “mandatory Class I Federal 
8

available retrofit technology (“BART”) on “BART-eligible 

sources,”3 or adopt alternative measures that can be shown to 

achieve greater reasonable progress than source-specific BART 

controls. The other path for addressing regional haze is through

40 CFR 51.309, which is an option for certain western states as 

described below. In this notice, the regional haze regulations 

at 40 CFR 51.309 will be referred to as “the 309 regulations.” 

C. Grand Canyon Visibility Transport Commission and the 

Regional Haze Regulations 

Pursuant to Section 169B(c)(1) and Section 169B(e) of the 

CAA, EPA established the GCVTC on November 12, 1991.4 The 

purpose of the GCVTC was to assess information about the adverse 

impacts on visibility in and around the 16 Class I areas on the 

Colorado Plateau5 region and to provide policy recommendations to 

EPA to address such impacts. The nine states that are part of 

the Grand Canyon Visibility Transport Region are Arizona, 

California, Colorado, Idaho, Nevada, New Mexico, Oregon, Utah, 

 

area.”

3 Pursuant to 40 CFR 51.301, “BART-eligible source” means a source in one of 

26 categories, which was not in operation prior to August 7, 1962, and was in 

existence on August 7, 1977, and has the potential to emit 250 tons per year 

or more of any air pollutant.

4 See 56 FR 57522, November 12, 1991.

5 The Colorado Plateau is a high, semi-arid tableland in southeast Utah, 

northern Arizona, northwest New Mexico, and western Colorado. The 16 mandatory

Class I areas are as follows: Grand Canyon National Park, Mount Baldy 

Wilderness, Petrified Forest National Park, Sycamore Canyon Wilderness, Black 

Canyon of the Gunnison National Park Wilderness, Flat Tops Wilderness, Maroon 

Bells Wilderness, Mesa Verde National Park, Weminuche Wilderness, West Elk 

Wilderness, San Pedro Parks Wilderness, Arches National Park, Bryce Canyon 

National Park, Canyonlands National Park, Capital Reef National Park, and Zion

National Park.
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and Wyoming. 

The CAA called for the GCVTC to evaluate visibility research

as well as other available information “pertaining to adverse 

impacts on visibility from potential or projected growth in 

emissions from sources located in the region.” The GCVTC was 

required to issue a report to EPA recommending what measures, if 

any, should be taken to protect visibility. In June 1996, the 

GCVTC issued its policy recommendations to EPA.6 The GCVTC 

determined that all transport region states could potentially 

impact the 16 Class I areas on the Colorado Plateau. The GCVTC 

recommendations included: strategies for addressing smoke 

emissions from wildland fires and agricultural burning; 

provisions to prevent pollution by encouraging renewable energy 

development; and provisions to manage clean air corridors, mobile

sources, and wind-blown dust, among other recommendations. 

The GCVTC’s recommendations were incorporated into EPA’s 

Regional Haze Rule at 40 CFR 51.309. The 309 regulations 

provided states in the Grand Canyon Visibility Transport Region 

an alternative method of achieving reasonable progress for Class 

I areas that were covered by the GCVTC's analysis.7 States 

 

6 See Grand Canyon Visibility Transport Commission, “Recommendations for 

Improving Western Vistas,” Report of the Grand Canyon Visibility Transport 

Commission to the United States Environmental Protection Agency, June 10, 1996

(hereinafter referred to as the “GCVTC Report”).

7 A SIP that is approved by EPA as meeting all of the requirements of section 

309 is “deemed to comply with the requirements for reasonable progress with 

respect to the 16 Class I areas [on the Colorado Plateau] for the period from

approval of the plan through 2018.” 40 CFR 51.309(a).
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electing to submit regional haze SIPs under the 309 regulations

(309 SIPs) may have other Class I areas that are not on the 

Colorado Plateau. Such states must either address these 

additional Class I areas through the 309 SIP pursuant to 40 CFR 

51.309(g), or submit a regional haze SIP under 40 CFR 51.308.

The 1999 Regional Haze Rule at 40 CFR 51.309(f) required the

submittal of an Annex whose purpose was to provide the specific 

details needed to translate the GCVTC's general recommendations 

for stationary source sulfur dioxide (SO2) reductions into an 

enforceable regulatory program. The GCVTC’s recommendations for 

stationary sources included a declining SO2 emissions cap and an 

enforceable market trading program that would serve as a 

“backstop” if voluntary measures did not result in meeting the 

SO2 emissions cap. The Western Regional Air Partnership (WRAP), 

a regional planning body formed to implement the GCVTC 

recommendations, submitted the Annex and EPA approved the Annex 

on June 5, 2003 as 40 CFR 51.309(h) (“the Annex Rule”). 

D. Legal Challenge and Revision of 309 Regulations

In 2005, the D.C. Circuit Court granted a petition for 

review challenging EPA’s revision to section 309 of the regional 

haze rule incorporating the recommendations in the Annex. The 

court concluded that EPA had established too high a bar in 

establishing the parameters for the SO2 stationary source 

program. Center for Energy & Economic Development v. EPA, 398 
11

F.3d 653 (D.C. Cir. 2005). In response to this ruling, EPA 

revised 40 CFR 51.309 on October 13, 2006, making a number of 

substantive changes. The regulations required, for those states 

electing to submit 309 SIPs, that 309 SIPs be submitted by 

December 17, 2007. See 71 FR 60612. 

E. State Submittals and Previous EPA Actions

Since four of its twelve Class I areas are on the Colorado 

Plateau, Arizona had the option of submitting a regional haze SIP

under section 309 of the Regional Haze Rule. When these 

regulations were first promulgated in 1999, 309 SIP submissions 

were due no later than December 31, 2003. Accordingly, ADEQ 

submitted to EPA on December 23, 2003, a 309 SIP for Arizona’s 

four Class I Areas on the Colorado Plateau.8 On December 31, 

2004, ADEQ submitted a revision to its 309 SIP, consisting of 

rules on emissions trading and smoke management, and a correction

to the State’s regional haze statutes 

Following the court’s 2005 ruling in Center for Energy & 

Economic Development v. EPA and EPA’s subsequent October 2006 

promulgation of revised 309 regulations, ADEQ sent a letter to 

EPA dated December 24, 2008, resubmitting the 309 SIPs that were 

previously submitted on December 31, 2003 and December 31, 2004. 

 

8

ADEQ also submitted provisions to address the regulations that pertain to 

reasonably attributable visibility impairment (“RAVI”) at 40 CFR 51.302, 303, 

304, 305, 306, and 307. Although these RAVI provisions were submitted along 

with Arizona’s 309 Regional Haze SIP, EPA is only proposing action on 

Arizona’s 309 Regional Haze SIP at this time.
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ADEQ acknowledged, however, that it had not submitted a SIP 

revision to address the requirements of 309(d)(4) related to 

stationary sources and 309(g) which governs reasonable progress 

requirements for Class I areas outside of the Colorado Plateau.9

The stationary source provisions in 40 CFR 51.309(d)(4) are 

a central and fundamental part of the GCVTC’s recommendations and

of the 309 regional haze program. Of particular importance, 40 

CFR 51.309(d)(4)(i) requires reductions in stationary source

emissions of SO2 sufficient to ensure greater reasonable progress 

than would be achieved by application of BART under 40 CFR

51.308(e)(2). In addition, 40 CFR 51.309(d)(4)(vii) requires 

implementation of any necessary long-term strategies and BART 

requirements for stationary source PM and NOX emissions.

Pursuant to 40 CFR 51.309(a), each state electing to submit 

a 309 SIP must also address reasonable progress requirements for 

Class I areas that are outside of the Colorado Plateau, but are 

within the state or affected by emissions from the state. These 

areas may be addressed either under 40 CFR 51.308 or under 40 CFR

51.309(g). Arizona ultimately chose to address these other areas

in a SIP submittal under 40 CFR 51.308. 

For the purposes of this federal register notice, the 

Arizona regional haze SIP submitted by ADEQ on December 24, 2008 

(which included the regional haze SIPs that were previously 

 

9 Letter from Stephen A. Owens, ADEQ, to Wayne Nastri, EPA (December 24, 
13

submitted on December 23, 2003 and December 30, 2004) will be 

referred to as “Arizona’s 309 Regional Haze SIP.” 

EPA made a finding on January 15, 2009, that 37 states, 

including Arizona, had failed to make all or part of the required

SIP submissions to address regional haze. See 74 FR 2392. 

Specifically, EPA found that Arizona failed to submit the plan 

elements required by 40 CFR 51.309(d)(4) and (g). EPA sent a 

letter to ADEQ on January 14, 2009, notifying the state of this 

failure to submit a complete SIP. ADEQ subsequently decided to 

submit a SIP to address the regional haze requirements in 40 CFR 

51.308. Arizona’s 308 SIP is not the subject of this proposed 

action.

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F. EPA’s Approval of Burning and Smoke Management Rules 

As part of ADEQ’s December 30, 2004 309 SIP submittal, ADEQ 

submitted rules pertaining to fire, open and prescribed burning, 

and smoke management. In addition to its own rules, ADEQ 

submitted rules from three other local agencies: the Maricopa 

County Environmental Services Department (MCESD),

11 the Pima 

County Department of Environmental Quality (PCDEQ), and the Pinal

County Air Quality Control District (PCAQCD).

12 ADEQ indicated 

 

2008). 

10 EPA recently took final action to approve in part and disapprove in part a 

portion of Arizona’s 308 SIP. 77 FR 72512 (December 5, 2012). EPA has also 

proposed to approve in part and disapprove in part the remainder of Arizona’s 

308 SIP. 77 FR 75704 (December 21, 2012).

11 The Maricopa County Environmental Services Department is currently known as 

the Maricopa County Air Quality Department. 

12 ADEQ, MCESD, PCDEQ, and PCAQCD regulate many sources of air pollution 
14

that these rules were submitted to meet the requirements of 

Arizona’s Enhanced Smoke Management Plan. These rules control PM

emissions which may contribute to visibility impairment. 

Although the burning rules were submitted as part of the 309 SIP,

EPA determined that these rules were separable from the remainder

of the 309 SIP submittals.

13 Accordingly, EPA reviewed these 

burning rules to determine if the rules met the general criteria 

for approval into the SIP under CAA Section 110 and 40 CFR Part 

51. EPA did not review the rules for purposes of meeting any of 

the requirements of the 309 regulations. On May 16, 2006 (71 FR 

28270), EPA approved the rules from ADEQ, PCDEQ, and PCAQCD, and 

on May 8, 2007 (72 FR 25973), EPA approved the rules from MCESD.

The effect of these final actions taken in 2006 and 2007 is that

EPA has approved part of Arizona’s 309 regional haze SIP 

submittals, but has not taken action on the remainder of those 

submittals.

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III. The State’s Submittal

A. What is the Purpose of the State’s Submittal?

 

within their county boundaries, and in addition to ADEQ, develop and implement

regulations that apply within their jurisdictions. The submitted rules are: 

ADEQ Rule R18-2-602, R18-2-1501 through 1513, PCDEQ Rule 17.12.480, PCAQCD 

Rule 3-8-700 and 3-8-710, and MCESD Rule 314.

13 Pursuant to Section 110(k)(3) of the CAA, EPA may approve a SIP revision in 

part, if a separable portion of a submittal meets all applicable requirements 

of the CAA. “By separable, EPA means that the action it anticipates taking 

will not result in the approved rule(s) being more stringent than the State 

anticipated.” See Memo from John Calcagni entitled, Processing of State 

Implementation Plan (SIP) Submittals (July 21, 1992) at 2.

14 See CAA section 110(k)(3) “If a portion of the plan revision meets all the 

applicable requirements of this chapter, the Administrator may approve the 

plan revision in part and disapprove the plan revision in part.” 
15

While states are required to submit SIPs to assure 

reasonable progress toward meeting the national goal of 

preventing any future and remedying any existing impairment of 

visibility in Class I areas which impairment results from manmade pollution, the regulations at 40 CFR 51.309 are optional for

certain western states. ADEQ elected to submit a SIP pursuant to

40 CFR 51.309, which address regional haze visibility impairment 

in the 16 Class I areas on the Colorado Plateau. 

B. What Did the State Submit?

On December 24, 2008, ADEQ re-submitted Arizona’s 309 SIP

pursuant to 40 CFR 51.309. ADEQ previously submitted a 309 

regional haze SIP on December 23, 2003 and a revision on December

30, 2004. As described above, following the court’s ruling in 

Center for Energy & Economic Development v. EPA, EPA revised 40 

CFR 51.309 on October 13, 2006 making a number of substantive 

changes. ADEQ resubmitted their regional haze SIP on December 

24, 2008 and stated that its submittal consisted of SIPs that 

were previously submitted to EPA on December 23, 2003 and 

December 30, 2004. As stated earlier, the Arizona regional haze 

SIP submitted by ADEQ on December 24, 2008 (which included the 

regional haze SIPs that were previously submitted on December 23,

2003 and December 30, 2004) will be referred to as “Arizona’s 309

Regional Haze SIP.” 

ADEQ also stated that the submittal did not include 
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provisions to address 40 CFR 51.309(d)(4) – provisions for the 

implementation of stationary source reductions, and 40 CFR 

51.309(g) – provisions to address additional Class I areas other 

the 16 Class I areas covered by the GCVTC. 

ADEQ’s December 24, 2008 letter identified the specific 

requirements of 40 CFR 51.309 that were addressed by the 

submittal.

Table 1 – 309 Requirements Addressed by ADEQ’s Submittal

Subsections of 

40 CFR 51.309

Description

309(d)(1) Time period covered

309(d)(2) Projection of visibility improvement

309(d)(3) Treatment of clean air corridors

309(d)(5) Mobile sources

309(d)(6) Programs related to fire

309(d)(7) Area sources of dust emissions from paved and 

unpaved roads

309(d)(8) Pollution prevention

309(d)(9) Implementation of additional recommendations

309(d)(10) Periodic implementation revision

309(d)(11) State planning and interstate coordination

IV. EPA’s Evaluation and Proposed Action

A. How is EPA Evaluating the Submittal?
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The primary requirements applicable to Arizona’s 309 

Regional Haze SIP are the regional haze regulations at 40 CFR 

51.309, which comprise a comprehensive long-term strategy for 

addressing sources that contribute to visibility impairment 

within the 16 Class I areas on the Colorado Plateau. The 309 

regulations require that 309 SIPs include provisions to address 

the projection of visibility improvement, the treatment of cleanair corridors, emissions from mobile sources, fire programs, area

sources of dust emissions from paved and unpaved roads, pollution

prevention, and the implementation of a program for stationary 

source reductions. EPA’s Technical Support Document (TSD) at 

sections 4 and 5 has more details on the 309 requirements. 

Pursuant to 40 CFR 51.309(d)(4), the stationary source 

program must: establish quantitative SO2 emission “milestones” 

(e.g., emission caps) that provide for continuing emission 

reductions for each year of the program through 2018, include 

provisions that allow states to determine whether the milestones 

have been met, and include provisions that implement the backstop

trading program in the event that a milestone is exceeded and the

trading program is triggered. 

Arizona must also demonstrate that its stationary source 

program will provide greater reasonable progress than would be 

achieved by application of BART under 40 CFR 51.308(e)(1). 

Pursuant to 40 CFR 51.309(d)(4)(vii), Arizona’s 309 Regional Haze
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SIP must also address NOx and PM emissions at stationary sources 

and require the implementation of any necessary long term 

strategies and BART requirements for stationary source PM and NOx

emissions. 

Lastly, regional haze SIP submittals must also meet general 

criteria for SIP approval under CAA Section 110 and 40 CFR Part 

51. 

B. Does the Submittal Meet the Evaluation Criteria?

As stated earlier, the 309 regulations comprise an optional 

program and provide an alternative method for GCVTC states to 

meet the regional haze reasonable progress requirements. The 309

regulations include the GCVTC recommendations and cover a wide 

range of control strategies and approaches. The regulations 

recognized that the 309 program is one that must be taken 

together as a whole and evaluated collectively.” 15 

Arizona’s 309 Regional Haze SIP did not include provisions 

to address 40 CFR 51.309(d)(4), i.e., provisions for the 

implementation of stationary source reductions. As described in 

the preceding section, the stationary source provisions in 40 CFR

51.309(d)(4) are a central and fundamental part of the GCVTC’s 

recommendations and of the 309 regional haze program. Based on 

 

15 See 40 CFR 51.309(d): (“Except as provided for in paragraph (e) of this 

section, each Transport Region State must submit an implementation plan that 

meets the following requirements . . .”). See also 64 FR 35754, July 1, 1999 

(explaining that “the requirements of Section 51.309 . . . are not severable.

States that wish to take advantage of the GCVTC’s efforts and EPA’s 

acceptance thereof are obligated to meet all of the requirements of section 
19

this deficiency alone, Arizona’s 309 Regional Haze SIP is not 

approvable. EPA’s TSD has more details on our evaluation. 

In addition to lacking provisions to address 309(d)(4), 

Arizona’s 309 Regional Haze SIP also did not address the 

requirements of 40 CFR 51.309(g) pertaining to Class I areas that

are not on the Colorado Plateau. However, Arizona ultimately 

chose to address these other areas in a SIP submittal under 40 

CFR 51.308. Therefore, the absence of these provisions from the 

309 SIP does not form part of the basis for today’s proposed 

disapproval. 

C. Proposed Action and Public Comment

As authorized in sections 110(k)(3) and 301(a) of the Act, 

EPA is proposing a partial disapproval of Arizona’s 309 Regional 

Haze SIP. The proposed action is a partial disapproval because 

EPA had previously approved, in 2006 and 2007, the burning and 

smoke management rules from ADEQ, MCESD, PCDEQ, and PCAQCD. 

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. Arizona’s 309 

Regional Haze SIP was not submitted to meet either of these 

requirements. Therefore, any action we take to finalize the 

 

51.309.” (emphasis added)). 
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described partial disapproval will not trigger mandatory 

sanctions under CAA section 179.

In addition, CAA section 110(c)(1) requires EPA to 

promulgate a Federal Implementation Plan (FIP) within two years 

after finding that a State has failed to make a required 

submission or disapproving a SIP submission in whole or in part, 

unless EPA approves a SIP revision correcting the deficiencies 

within that two-year period. Due to our previous finding that 

Arizona had failed to make part of the required regional haze 

submission,16 EPA is already subject to a “FIP duty” under 

section 110(c)(1) with respect to the regional haze requirements 

for Arizona. We are also subject to a set of court-ordered 

deadlines for approval of a SIP and/or promulgation of a FIP that

collectively meet the regional haze implementation plan 

requirements for Arizona.17 Thus, our proposed partial 

disapproval of Arizona’s 309 Regional Haze SIP, if finalized, 

will not create a new FIP obligation.18

We will accept comments from the public on the proposed 

partial disapproval for the next 30 days. 

 

16 74 FR 2392 (January 15, 2009).

17 National Parks Conservation Association v. Jackson (D.D.C. Case 1:11-cv01548).

18 We note that Arizona is appealing the district court’s entry and 

modification of the consent decree that sets the deadlines for EPA action on 

regional haze plans for Arizona. National Parks Conservation Association v. 

EPA (USCA Case #12-5211). If this challenge ultimately results in any 

limitations on the scope of EPA’s current FIP duty with respect to regional 

haze in Arizona, then today’s action, if finalized, could result in a new or 

altered FIP duty.
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V. 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 inand-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 
22

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 may 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 
23

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 preexisting 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 
24

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 
25

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 No. 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 
26

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.
27

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, 

Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate

matter, Reporting and recordkeeping requirements, Volatile 

organic compounds.

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

January 23, 2013 //signed by//

________________ ______________________

Dated: Jared Blumenfeld,

Regional Administrator,

Region IX.