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[Federal Register Volume 90, Number 11 (Friday, January 17, 2025)]
[Proposed Rules]
[Pages 5790-5794]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-00115]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2024-0600; FRL-12508-01-R9]

Air Plan Revisions; Arizona; Arizona Department of Environmental 
Quality

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing an 
approval and a limited approval and limited disapproval of a State 
Implementation Plan (SIP) submission made by the State of Arizona to 
address emissions of particulate matter 10 micrometers in diameter or 
smaller (PM10) from agricultural operations. The SIP 
submission includes an amended statute, two definition rules, and two 
rules regulating crop and animal operations in Pinal County, Arizona. 
We are proposing action on local rules to regulate these emission 
sources under the Clean Air Act (CAA or ``Act''). We are taking 
comments on this proposal and plan to follow with a final action.

DATES: Comments must be received on or before February 18, 2025.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2024-0600 at https://www.regulations.gov. For comments submitted at 
Regulations.gov, follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. The EPA may publish any comment received to its public 
docket. Do not submit electronically any information you consider to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Multimedia submissions (audio, 
video, etc.) must be accompanied by a written comment. The written 
comment is considered the official comment and should include 
discussion of all points you wish to make. The EPA will generally not 
consider comments or comment contents located outside of the primary 
submission (i.e., on the web, cloud, or other file sharing system). For 
additional submission methods, please contact one of the people 
identified in the FOR FURTHER INFORMATION CONTACT section. For the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit https://www.epa.gov/dockets/commenting-epa-dockets. If you need 
assistance in a language other than English or if you are a person with 
a disability who needs a reasonable accommodation at no cost to you, 
please contact one of the people identified in the FOR FURTHER 
INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: For general inquiries and inquiries 
related to the Arizona Administrative Code: Christine Vineyard, EPA 
Region IX, 75 Hawthorne St., San Francisco, CA 94105. By phone: (415) 
947-4125; email at [email protected]. For inquiries related to 
the Arizona Revised Statutes: Alina Batool, EPA Region IX, 75 Hawthorne 
St., San Francisco, CA 94105. By phone (415) 972-3345; email at 
[email protected].

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

Table of Contents

I. The State's Submittal
    A. What did the State submit?
    B. Are there other versions of the statute and rules?
    C. What is the purpose of the submitted rule and statutory 
revisions?
II. The EPA's Evaluation and Action
    A. How is the EPA evaluating the statute and rules?

[[Page 5791]]

    B. Do the statute and rules meet the evaluation criteria?
    C. What are the deficiencies?
    D. The EPA's recommendations to further improve the statute and 
rules
    E. Proposed action and public comment
III. Incorporation by Reference
IV. Statutory and Executive Order Reviews

I. The State's Submittal

A. What did the State submit?

    Table 1 lists the statute and rules addressed by this proposal with 
the dates that they were adopted and submitted to the EPA by the 
Arizona Department of Environmental Quality (ADEQ or ``State'').

                                      Table 1--Submitted Statute and Rules
----------------------------------------------------------------------------------------------------------------
    Arizona revised statutes (ARS)                    Statute title                   Amended        Submitted
----------------------------------------------------------------------------------------------------------------
ARS section 49-457....................  Agricultural best management practices        03/26/2021      03/03/2023
                                         committee; members; powers; permits;
                                         definitions.
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Arizona administrative code (AAC)       AAC Title...............................         Amended       Submitted
----------------------------------------------------------------------------------------------------------------
AAC R18-2-610.........................  Definitions for R19-2-610.01, R18-2-          11/26/2021      03/03/2023
                                         610.02, and R18-2-610.03.
AAC R18-2-610.03......................  Agricultural PM General Permit for Crop       11/26/2021      03/03/2023
                                         Operations; Pinal County PM
                                         Nonattainment Area.
AAC R18-2-611.........................  Definitions for R18-2-611.01, R18-2-          11/26/2021      03/03/2023
                                         611.02, and R18-2-611.03.
AAC R18-2-611.03......................  Agricultural PM General Permit for            11/26/2021      03/03/2023
                                         Animal Operations; Pinal County PM
                                         Nonattainment Area.
----------------------------------------------------------------------------------------------------------------

    On September 3, 2023, the SIP submittal containing the documents 
listed in Table 1 was deemed complete by operation of law.

B. Are there other versions of the statute and rules?

    We approved an earlier version of ARS 49-457 into the SIP on June 
29, 1999 (64 FR 34726). We also approved earlier versions of AAC R18-2-
610 and R18-2-610.03 into the SIP on May 1, 2017 (82 FR 20267). If we 
finalize this proposal to approve the submitted version of ARS 49-457 
and AAC R18-2-610 and to issue a limited approval and limited 
disapproval of the submitted version of AAC R18-2-610.03, then these 
versions will replace the versions of this statute and these rules in 
the SIP.
    We note that on October 11, 2001, we approved AAC R18-2-611, 
``Agricultural PM-10 General Permit; Maricopa PM10 
Nonattainment Area'' into the Arizona SIP, which applies to Maricopa 
County commercial farmers (crop operations). See 66 FR 51869 (October 
11, 2001). The March 3, 2023 submittal of rule AAC R18-2-611, 
``Definitions for R18-2-611.01, R18-2-611.02, and R18-2-611.03'' is a 
separate rule that was not submitted to replace the existing SIP-
approved rule AAC R18-2-611, ``Agricultural PM-10 General Permit; 
Maricopa PM10 Nonattainment Area.'' If the EPA approves the 
new rule AAC R18-2-611, ``Definitions for R18-2-611.01, R18-2-611.02, 
and R18-2-611.03'' into the Arizona SIP, there will be two different 
rules in the SIP with the same number, but they would be differentiated 
by their different titles and dates.

C. What is the purpose of the submitted rule and statutory revisions?

    Emissions of PM, including PM10, contribute to effects 
that are harmful to human health and the environment, including 
premature mortality, aggravation of respiratory and cardiovascular 
disease, decreased lung function, visibility impairment, and damage to 
vegetation and ecosystems. The CAA requires states to have SIPs that 
provide for attainment, maintenance, and enforcement of the 
PM10 NAAQS, including the adoption and implementation of 
regulations to control PM emissions in designated PM10 
nonattainment areas. ADEQ's submission addresses emissions from certain 
sources of PM10 emissions through a statutory provision and 
several regulations.
    First, this submission would revise the existing SIP-approved 
version of ARS section 49-457 by, among other things, expanding the 
definition of ``regulated agricultural activities'' to include 
activities of dairies, beef feedlots, poultry facilities, and swine 
facilities. It would also expand the definition of ``regulated area'' 
to apply to any PM10 nonattainment areas designated by the 
EPA on or after June 1, 2009, which includes the West Pinal County 
PM10 nonattainment area.
    Second, this submission would revise existing regulations in the 
Arizona SIP. AAC R18-2-610 makes largely administrative updates to the 
existing crop operations definitions rule and adds a definition for 
``unpaved vehicle or equipment traffic area.'' AAC R18-2-610.03 amends 
the existing crop operations rule applicable to the West Pinal County 
PM10 nonattainment area, primarily adding a requirement for 
operators to implement two, as opposed to one, best management 
practices (BMPs) from the list of options for different areas.
    Third, this submission would add a new regulation to the Arizona 
SIP. AAC R18-2-611.03 requires that commercial dairy operations, beef 
cattle feedlots, poultry facilities, and swine facilities implement 
BMPs to reduce PM10 emissions from those sources. The new 
AAC R18-2-611 provides definitions for AAC R18-2-611.03 and other 
animal operations BMP rules in the State.
    The EPA's technical support documents (TSDs) have more information 
about the statute and rules.

II. The EPA's Evaluation and Action

A. How is the EPA evaluating the statute and rules?

    SIP rules must meet applicable substantive requirements, e.g., must 
be sufficiently stringent (see CAA sections 172(c)(1) and 
189(a)(1)(C)), must be enforceable (see CAA section 110(a)(2)), must 
not interfere with applicable requirements concerning attainment and 
reasonable further progress or other CAA requirements (see CAA section 
110(l)).
    States must adopt and implement reasonably available control 
measures (RACM), including reasonably available control technology 
(RACT), in Moderate PM10 nonattainment areas (see CAA 
section 189(a)(1)(C)). Nonattainment areas that are classified as 
Serious must also demonstrate that they have implemented best available 
control measures (BACM). (see CAA section 189(b)(1)(B)). In addition, 
each

[[Page 5792]]

attainment plan must ``provide for the implementation of all reasonably 
available control measures as expeditiously as practicable (including 
such reductions in emissions from existing sources in the area as may 
be obtained through the adoption, at a minimum, of reasonably available 
control technology) and shall provide for attainment of the national 
primary ambient air quality standards.'' (see CAA section 172(c)(1)). 
RACM and BACM findings are generally made in the context of an overall 
attainment demonstration. Because this submission is not being 
evaluated at this time as part of an attainment plan submission, we 
will not evaluate these rules for RACM and BACM in this action and will 
instead do so as part of a future attainment planning action.
    Guidance and policy documents that we use to evaluate control rules 
submitted for PM10 nonattainment areas, including 
enforceability, revision/relaxation, and rule stringency requirements, 
include the following:
    1. ``State Implementation Plans; General Preamble for the 
Implementation of Title I of the Clean Air Act Amendments of 1990,'' 57 
FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992).
    2. ``Issues Relating to VOC Regulation Cutpoints, Deficiencies, and 
Deviations,'' EPA, May 25, 1988 (the Bluebook, revised January 11, 
1990).
    3. ``Guidance Document for Correcting Common VOC & Other Rule 
Deficiencies,'' EPA Region 9, August 21, 2001 (the Little Bluebook).
    4. ``State Implementation Plans for Serious PM-10 Nonattainment 
Areas, and Attainment Date Waivers for PM-10 Nonattainment Areas 
Generally; Addendum to the General Preamble for the Implementation of 
Title I of the Clean Air Act Amendments of 1990,'' 59 FR 41998 (August 
16, 1994).
    5. ``PM-10 Guideline Document,'' EPA 452/R-93-008, April 1993.

B. Do the statute and rules meet the evaluation criteria?

    The EPA is proposing to conclude that the submitted statute, ARS 
Sec.  49-457 meets the evaluation criteria. We note that ARS Sec.  49-
457 is not intended to regulate agricultural activities in isolation. 
Although it establishes a number of substantive requirements (for 
example, the requirement that a person who commences a regulated 
agricultural activity must comply with the permit), it does not 
specify, in detail, the requirements for regulated entities. As a 
result, our evaluation of enforceability is not an evaluation of 
whether the statute in isolation establishes specific enforceable 
requirements on agricultural activities, but is instead an evaluation 
of whether the requirements of the statute are sufficiently clear and 
enforceable that, when combined with specific local rules implementing 
the statute (which also have been or will be submitted into the SIP), 
these rules can be enforced. We propose to find that the rule 
provisions regarding applicability, BMPs, recordkeeping, reporting and 
other requirements in the statute are clear. These and other provisions 
are sufficient to establish a framework under which, in combination 
with local rules, affected sources and regulators can evaluate and 
determine compliance with ARS Sec.  49-457 consistently as required by 
CAA section 110(a).
    The EPA is proposing to conclude that the submitted regulations, 
AAC R18-2-610, R18-2-610.03, AAC R18-2-611, and R18-2-611.03 largely 
meet the evaluation criteria. The provisions of the rule are generally 
clear and mostly specify requirements in a manner that sufficiently 
specifies what is necessary in order to comply. The updated regulations 
also strengthen the SIP, adding additional control requirements for 
both animal and crop operations. Rule provisions that do not meet the 
evaluation criteria are summarized below and discussed further in the 
TSD.

C. What are the deficiencies?

    EPA is proposing to conclude that R18-2-610.03 and R18-2-611.03 do 
not satisfy the requirements of section 110 and part D of title I of 
the Act, because they are not sufficiently enforceable and therefore 
prevent full approval of the SIP revision.
    The crop and animal operation rules require operators to complete a 
Best Management Practices Program General Permit Record Form annually. 
This form is not submitted to the Director but must instead be provided 
to the Director within two business days of notice to the operator. The 
form must contain the name of the operator, signature, date signed, and 
the mailing or physical address of the operation. For animal 
operations, the form must contain a specification of the BMPs selected 
for each category. For crop operations the requirement is less clear. 
Paragraph C.3 of R18-2-610.03 states that the form shall include ``The 
following information for each best management practice selected for 
tillage, ground operations and harvest, cropland, noncropland, 
commercial farm roads, and significant earth moving activities (if 
applicable).'' However, there is no list of ``following information'' 
so it is not clear what, if anything, must be included pursuant to this 
requirement.
    The rules also require operators to maintain records demonstrating 
compliance for three years. The records must include a copy of the BMP 
Program General Permit Record Form, but the rules do not otherwise 
specify any records that must be maintained or reported. Finally, the 
rules require operators to complete a survey every three years that 
includes the number of animals for each type of operation, the total 
miles of unpaved roads, the total acreage of access connections and 
equipment areas, the chosen BMPs, and, for some operators, whether 
water was applied on a high risk day. The survey is sent out by ADEQ 
and responses are submitted to the Arizona Department of Agriculture 
(ADA). The survey results are aggregated by the ADA and reported to 
ADEQ. The rules prohibit the report from including any operator's name 
(that is, the results are anonymous).
    Under Rules R18-2-610.03 and R18-2-611.03, absent a specific 
request from the Director (upon which an operator would have two 
business days to provide records), source-specific compliance 
information is only obtained through the survey. This process is not 
enforceable because compliance information is only available if ADEQ 
sends out the survey and the ADA subsequently reports the information 
to ADEQ or the ADEQ exercises its discretion to request records. 
Further, because the report from ADA to ADEQ is aggregated so that the 
individual operators remain anonymous, it is not clear whether the 
survey results would be sufficient to verify or incentivize compliance. 
Moreover, because these rules require operators to select from a menu 
of compliance options, it is not clear how compliance could be 
determined without knowing the chosen compliance options. While it may 
be possible to verify whether a particular BMP is being implemented, 
for example, cessation of night tilling, access restrictions, reduced 
vehicle speeds, or watering, if there is no record of which BMPs have 
been selected, a determination of noncompliance with the rules would 
essentially require an exhaustive demonstration that none of the BMPs 
are being implemented. In the absence of the Director exercising their 
discretion to request records, it becomes nearly impossible to enforce 
the requirements in these rules.

D. The EPA's Recommendations to Further Improve the Statute and Rules

    The TSDs include recommendations for the next time the State 
modifies the statute and rules.

[[Page 5793]]

E. Proposed Action and Public Comment

    The EPA is proposing to approve the statute, ARS Sec.  49-457, and 
the definition rules, AAC R18-2-610 and R18-2-611. The statute sets out 
the basic framework of the statewide agricultural BMP program, 
strengthening the program by expanding its geographic scope and 
strengthening its substantive requirements, particularly in 
nonattainment areas classified as Serious. The crop operations 
definitions rule, AAC R18-2-610 updates a number of definitions, 
largely with administrative updates. The animal operations definitions 
rule, AAC R18-2-611 does not itself contain substantive requirements 
but lays out definitions to support animal operation BMP rules in 
Arizona. The statute and definitions rules do not contain deficiencies 
that prevent our approval, and we therefore propose to approve them as 
authorized in section 110(k)(3) of the Act.
    The EPA is also proposing a limited approval and limited 
disapproval of the submitted Pinal County crop operation, AAC R18-2-
610.03, and animal operation, AAC R18-2-611.03, rules. The EPA is 
proposing a limited approval because the EPA's analysis demonstrates 
that the rules would strengthen the SIP. The crop operations rule 
strengthens existing requirements, and the animal operations rule 
establishes new requirements for agricultural PM10 sources 
in Pinal County. The EPA is proposing a simultaneous limited 
disapproval for these rules based on the enforceability issues 
identified in section II.C. of this notice and described in detail in 
the rule TSD.
    If we finalize this approval and limited approval and limited 
disapproval as proposed, we will replace the existing version of ARS 
Sec.  49-457 and AAC R18-2-610 and AAC R18-2-610.03 in the SIP, as well 
as add the new AAC R18-2-611 and AAC R18-2-611.03 to the SIP. We will 
accept comments from the public on this proposal until February 18, 
2025. If finalized, this action would incorporate the submitted rules 
into the SIP, including those provisions identified as deficient. This 
approval is limited because the EPA is simultaneously proposing a 
limited disapproval. If we finalize this disapproval as proposed, CAA 
section 110(c) would require the EPA to promulgate a federal 
implementation plan within 24 months unless we approve subsequent SIP 
revisions that correct the deficiencies identified in our final action.
    In addition, final disapproval would trigger the offset sanction in 
CAA section 179(b)(2) 18 months after the effective date of a final 
disapproval, and the highway funding sanction in CAA section 179(b)(1) 
six months after the offset sanction is imposed. A sanction would not 
be imposed if the EPA determines that a subsequent SIP submission 
corrects the deficiencies identified in our final action before the 
applicable deadline. The EPA intends to work with the State to correct 
the deficiencies in a timely manner.
    Note that the submitted rules have been adopted as Arizona State 
law, and the EPA's final limited disapproval would not prevent the 
State from enforcing them. The limited disapproval also would not 
prevent any portion of the rules from being incorporated by reference 
into the federally enforceable SIP as discussed in a July 9, 1992 EPA 
memo found at: https://www.epa.gov/sites/production/files/2015-07/documents/procsip.pdf.

III. Incorporation by Reference

    In this rule, the EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by 
reference ARS Sec.  49-457, ``Agricultural best management practices 
committee; members; powers; permits; definitions'' revised on March 26, 
2021, which establishes a framework for an agricultural best management 
practice permit in Arizona, and AAC R18-2-610, ``Definitions for R19-2-
610.01, R18-2-610.02, and R18-2-610.03,'' AAC R18-2-610.03, 
``Agricultural PM General Permit for Crop Operations; Pinal County PM 
Nonattainment Area,'' AAC R18-2-611, ``Definitions for R18-2-611.01, 
R18-2-611.02, and R18-2-611.03,'' and AAC R18-2-611.03, ``Agricultural 
PM General Permit for Animal Operations; Pinal County PM Nonattainment 
Area,'' which establish agricultural best management practice permits 
for crop and animal operations in Pinal County. The EPA has made, and 
will continue to make, these materials available through 
www.regulations.gov and at the EPA Region IX Office (please contact one 
of the people identified in the FOR FURTHER INFORMATION CONTACT section 
of this preamble for more information).

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, the EPA's role is to review state choices, 
and approve those choices if they meet the minimum criteria of the Act. 
Accordingly, this proposed action is proposing an approval, limited 
approval, and limited disapproval of state law as meeting federal 
requirements and does not impose additional requirements beyond those 
imposed by state law.
    Additional information about these statutes and Executive Orders 
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review.

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the PRA because this action does not impose additional requirements 
beyond those imposed by state law.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action will not impose any requirements on small entities beyond those 
imposed by state law.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. This action does not impose additional requirements 
beyond those imposed by state law. Accordingly, no additional costs to 
state, local, or tribal governments, or to the private sector, will 
result from this action.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government.

[[Page 5794]]

F. Executive Order 13175: Coordination with Indian Tribal Governments

    This action does not have Tribal implications, as specified in 
Executive Order 13175, because the SIP is not approved to apply on any 
Indian reservation land or in any other area where the EPA or an Indian 
Tribe has demonstrated that a Tribe has jurisdiction, and 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

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. Therefore, this action is not 
subject to Executive Order 13045 because it is merely proposing a 
limited approval and limited disapproval of state law as meeting 
federal requirements. Furthermore, the EPA's Policy on Children's 
Health does not apply to this action.

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

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    Section 12(d) of the NTTAA directs the EPA to use voluntary 
consensus standards in its regulatory activities unless to do so would 
be inconsistent with applicable law or otherwise impractical. The EPA 
believes that this action is not subject to the requirements of section 
12(d) of the NTTAA because application of those requirements would be 
inconsistent with the CAA.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Population and Executive 
Order 14096: Revitalizing Our Nation's Commitment to Environmental 
Justice for All

    Executive Order 12898 (Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
February 16, 1994) directs Federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on communities with environmental justice 
(EJ) concerns to the greatest extent practicable and permitted by law. 
Executive Order 14096 (Revitalizing Our Nation's Commitment to 
Environmental Justice for All, 88 FR 25251, April 26, 2023) builds on 
and supplements Executive Order 12898 and defines EJ as, among other 
things, ``the just treatment and meaningful involvement of all people, 
regardless of income, race, color, national origin, Tribal affiliation, 
or disability, in agency decision-making and other Federal activities 
that affect human health and the environment.''
    The State did not evaluate EJ considerations as part of its SIP 
submittal; the CAA and applicable implementing regulations neither 
prohibit nor require such an evaluation. The EPA did not perform an EJ 
analysis and did not consider EJ in this action. Due to the nature of 
the action being taken here, this action is expected to have a neutral 
to positive impact on the air quality of the affected area. 
Consideration of EJ is not required as part of this action, and there 
is no information in the record inconsistent with the stated goal of 
Executive Orders 12898 and 14096 of achieving EJ for communities with 
EJ concerns.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Particulate matter, Reporting 
and recordkeeping requirements.

    Dated: January 2, 2025.
Martha Guzman Aceves,
Regional Administrator,Region IX.
[FR Doc. 2025-00115 Filed 1-16-25; 8:45 am]
BILLING CODE 6560-50-P
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