AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is finalizing revisions to the Maricopa County Air Quality Department's (MCAQD) portion of the state implementation plan (SIP) for the State of Arizona. We are finalizing full approval of Rules 210, 220, 240, and 241, and conditional approval of Rules 100 and 200. The revisions update the MCAQD's New Source Review (NSR) permitting program for new and modified sources of air pollution.

DATES:

This rule is effective on May 6, 2019.

ADDRESSES:

The EPA has established docket number EPA-R09-OAR-2017-0481 for this action. Generally, documents in the docket for this action are available electronically at https://www.regulations.gov or in hard copy at EPA Region IX, 75 Hawthorne Street (AIR-3), San Francisco, California 94105-3901. While all documents in the docket are listed at https://www.regulations.gov, some information may be publicly available only at the hard copy location (e.g., copyrighted material, large maps, multi-volume reports), and some may not be available in either location (e.g., confidential business information (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:

Shaheerah Kelly, EPA Region IX, 75 Hawthorne Street (AIR-3), San Francisco, CA 94105-3901, (415) 947-4156, kelly.shaheerah@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document, the terms “we,” “us,” and “our” refer to the EPA.

Table of Contents

I. Proposed Action

II. Summary of Public Comments and EPA Responses

III. EPA Action

IV. Incorporation by Reference

V. Statutory and Executive Order Reviews

Definitions

For the purpose of this document, we are giving meaning to certain words or initials as follows:

(i) The initials ADEQ mean or refer to the Arizona Department of Environmental Quality.

(ii) The initials BACT mean or refer to Best Available Control Technology.

(iii) The word or initials CAA or Act mean or refer to the Clean Air Act.

(iv) The initials CFR mean or refer to Code of Federal Regulations.

(v) The initials or words EPA, we, us or our mean or refer to the United States Environmental Protection Agency.

(vi) The initials FR mean or refer to Federal Register.

(vii) The word or initials MCAQD, “the County” or “Maricopa County” mean or refer to the Maricopa County Air Quality Department, the agency with jurisdiction over stationary sources within Maricopa County, Arizona.

(viii) The phrase minor NSR means the permit program applicable to new or modified sources that do not result in a new major source or a major modification.

(ix) The initials NAAQS mean or refer to the National Ambient Air Quality Standards.

(x) The initials NSR mean or refer to New Source Review, which includes NNSR, PSD and minor NSR.

(xi) The initials NNSR mean or refer to nonattainment New Source Review.

(xii) The initials PM_2.5 mean or refer to particulate matter less than 2.5 micrometers.

(xiii) The initials PM₁₀ mean or refer to particulate matter less than 10 micrometers.

(xiv) The initials PSD mean or refer to Prevention of Significant Deterioration.

(xv) The initials SIP mean or refer to State Implementation Plan.

(xvi) The word State means or refers to the State of Arizona.

(xvii) The initials TSD mean or refer to the Technical Support Document.

I. Proposed Action

On June 11, 2018, the EPA proposed to approve or conditionally approve the rules listed in Table 1 for incorporation into the Arizona SIP.^[1] The submittals for these rules, which we refer to collectively herein as “MCAQD's NSR submittal” or “the submittal,” represent a comprehensive revision to the MCAQD's preconstruction review and permitting program and are intended to satisfy the requirements under part D (NNSR) of title I of the Act as well as the general preconstruction review requirements under section 110(a)(2)(C) of the Act. Our detailed analysis of these rules is provided in the TSD and Federal Register notice for the proposed rulemaking for this SIP revision approval action.

We proposed to approve and conditionally approve these rules because we determined that they strengthen the SIP and are mostly consistent with the relevant CAA requirements. We proposed to fully approve Rules 210, 240 and 241 as part of the MCAQD's general and major source NSR permitting program because we determined that these rules satisfy the substantive statutory and regulatory requirements for NSR permit programs as contained in part D of title I of the Act (sections 172, 173 and 182(a)), the requirements of CAA section 110(a)(2)(C), 40 CFR 51.160-51.165, and 40 CFR 51.307.

We proposed to conditionally approve Rules 100, 200, and 220 because we determined that, while they mostly satisfy the statutory and regulatory requirements of CAA section 110(a)(2)(C) and part D of title I of the Act, the rules also contained eight deficiencies that prevented full approval. In our proposed action we determined that:

1. The definitions of “PM_2.5” and “PM₁₀” in Rule 100, Sections 200.91 and 200.92 are inconsistent with the definition contained in 40 CFR 51.165(a)(1)(xxxvii), and are therefore deficient;

2. the definition of “good engineering practice stack height” in Rule 200, Section 201 is inconsistent with the definition for this term provided in 40 CFR 51.100(ii), and is therefore deficient;

3. the MCAQD must provide a basis under 40 CFR 51.160(e) to demonstrate that regulation of the equipment (i.e., agricultural equipment used in normal farm operations) exempted in Rule 200, Section 305.1.c is not needed for the MCAQD's program to meet federal NSR requirements for attainment and maintenance of the NAAQS or review for compliance with the control strategy;

4. Rule 220, Sections 404.3.e and 404.3.f, for reconstructed sources and for changes associated with an emission increase greater than 10 percent of the major source threshold, are deficient because these provisions allow changes with potentially significant emission increases and should not be listed as changes that can be made after providing only a notification to the MCAQD;

5. Rule 200, Section 403.2 does not ensure the continuity of the NSR terms and conditions when a Title V or Non-Title V permit expires and is therefore deficient;

6. references to Appendix G (Incorporated Materials) in certain provisions in Rules 100 and 200 are deficient because Appendix G is neither included in the existing SIP nor has it been included in MCAQD's NSR submittal.

7. references to the Arizona Testing Manual (ATM) in Rules 100 and 200 are deficient because they rely on provisions that are not SIP approved, and the ATM is significantly out of date and not appropriate to be relied upon as the sole basis for testing procedures; and

8. certain definitions that the MCAQD proposed be removed from the approved SIP are used in other SIP rules and therefore cannot be removed from the SIP without further justification.

These deficiencies were the basis for the EPA's proposed conditional approval of MCAQD's NSR submittal. Before our proposal, the MCAQD and the ADEQ submitted letters committing to adopt and submit revisions to the EPA to address the identified deficiencies not later than one year from the date we take final action to approve the MCAQD's NSR program revisions, consistent with the requirements of CAA section 110(k)(4).

We also proposed to remove the following definitions from the MCAQD portion of the Arizona SIP because these terms are now defined in other rules or are no longer used in the SIP.

II. Summary of Public Comments and EPA Responses

Our June 11, 2018 proposed rulemaking ^[4] provided a 30-day public comment period. We received a joint comment letter from the Sierra Club and Center for Biological Diversity and also received a comment from an anonymous source. Our Response to Comments document in the docket for this action summarizes the comments and includes the EPA's full responses.^[5] Below, we briefly summarize the significant comments and our responses.

Comment 1: The EPA informed the County that its definition of “begin actual construction” in Rule 100 was inconsistent with federal permit requirements in 40 CFR 51.165 and specified the issues pertaining to its definition. While we acknowledge that the definition was withdrawn from the EPA's consideration as part of the SIP, the EPA should have required the County to revise the definition of the term “begin actual construction.”

Response 1: At the time of the EPA's proposed action on MCAQD's NSR submittal, the option to disapprove the definition of “begin actual construction” was no longer available because the County had withdrawn the definition from its submittal. Accordingly, the comments regarding the EPA's approval or disapproval of this definition are not germane to our final rulemaking action.

Comment 2: The minor NSR Rules 200 and 241 are unenforceable because the minor NSR rules in the SIP will have no federally enforceable definition of “begin actual construction.” Because this definition is still in effect at the county level, the County will still be allowing certain on-site construction activities before a permit is issued. Such cases could prejudice the Control Officer's determination regarding permit approval. This situation compromises the integrity of the entire minor NSR program. Therefore, the EPA should disapprove all the minor NSR permitting rules until an adequate definition of the term “begin actual construction” for the minor NSR program is submitted for SIP approval.

Response 2: The EPA disagrees that all the minor NSR program rules should be disapproved because they lack a definition for the term “begin actual construction.” The general permit program requirements found in 40 CFR 51.160-164, which specify the minimum requirements that apply to all NSR programs, do not contain a requirement like the ones found in 40 CFR 51.165 and 51.166, which provide that major NSR program rules must include specified definitions. While some permit agencies rely on the same definitions contained in their major NSR programs for their minor NSR program, there is no regulatory requirement to do so. Therefore, the lack of a definition for the term “begin actual construction” is not inconsistent with the EPA regulations for minor NSR programs.

Maricopa County's current SIP-approved permit program does not contain a definition of the term “begin actual construction” for minor sources. Maricopa County's local rules have contained the current definition of “begin actual construction” since February 3, 2016. However, we are not aware of any situations where the lack of such a definition or the current definition has prejudiced the Control Officer when determining if a permit should be issued and the commenter did not provide any examples. We note that Maricopa County has provided the EPA with a copy of proposed rule revisions, which include a definition for the term “begin actual construction” that is consistent with the definition of the same term found in 40 CFR 51.165(a)(1)(xv).

Comment 3: The EPA must require Maricopa County to demonstrate that minor modifications at existing sources with emission increases below the minor NSR modification thresholds will not interfere with attainment or maintenance of the NAAQS or violate the control strategy, because without such a demonstration, the EPA cannot ensure that Maricopa County's minor NSR program satisfies the core requirement that the County be able to prevent modification of a source if it would interfere with attainment or maintenance of the NAAQS pursuant to 40 CFR 51.160 and section 110(a)(2)(C) of the CAA.

Response 3: The EPA disagrees with the conclusions provided in the comment regarding the type of demonstration required to satisfy the provisions of 40 CFR 51.160(a), (b) and (e). The commenters do not claim that any of these individual provisions were not met, but instead claim that in order to approve Maricopa County's minor source NSR program, the EPA must require Maricopa County to provide an analysis demonstrating that emission increases lower than the minor NSR modification thresholds will not interfere with attainment or maintenance of the NAAQS. This is an incorrect reading of the requirements of the cited provisions.

CAA section 110(a)(2)(C) requires a permit program to regulate the construction and modification of sources as necessary to assure the NAAQS are achieved. The regulation of minor sources and modifications through a permit program is only one of many regulatory components considered when adopting an attainment plan to achieve a particular NAAQS. Recognizing that states have significant leeway to craft their minor source permit programs, 40 CFR 51.160(e) requires permit agencies to “identify types and sizes of facilities, buildings, structures, or installations which will be subject to review” and “discuss the basis for determining which facilities will be subject to review.” The provisions of 40 CFR 51.160(a) and (b) are only applicable to the sources identified under 40 CFR 51.160(e) as being subject to review, and paragraph (e) only requires the submittal to discuss “which facilities will be subject to review.” There is no requirement to demonstrate that sources not subject to the minor source permit program will not interfere with attainment or maintenance of the NAAQS. Instead, the entire NSR program must subject a sufficient number of sources (or emissions) to review to assure, in conjunction with all other plan provisions, that the NAAQS will be achieved.^[6]

The EPA reviewed the submitted analysis and found MCAQD's NSR submittal satisfied the requirements of 40 CFR 51.160(e) and CAA section 110(a)(2)(C) because we believe that in conjunction with other SIP provisions, an NSR program that will regulate approximately 74-83% of new stationary source emissions by requiring BACT level controls on such sources provides adequate regulation to ensure the NAAQS will be met.

Comment 4: EPA proposed to conditionally approve several provisions in the Maricopa County rules but did not provide any justification for the use of a conditional approval in two cases: The definitions for PM₁₀ and PM_2.5 in Rule 100, and certain procedures that do not require a Non-Title V permit revision in Rule 220. The conditional approval commitment letter provided by the ADEQ was not specific enough in its commitment to submit the Maricopa County's SIP revision to EPA within one year from the EPA's final action to conditionally approve MCAQD's NSR submittal.

Response 4: As discussed in Responses 5 and 6, the EPA has found that the two specific provisions raised by the commenters are not deficient. Since the EPA is no longer conditionally approving these provisions, it is not necessary to respond to the claim that the EPA did not provide an adequate justification for proposing conditional approval for these provisions. The EPA agrees that the April 6, 2018 commitment letter provided by ADEQ was not specific enough in its commitment to submit the Maricopa County's SIP revision to the EPA within one year of final action. However, for other provisions that the EPA is conditionally approving, we note that, on October 5, 2018, the ADEQ provided the EPA with a clarification letter that includes a commitment by the ADEQ to submit Maricopa County's corrections of the identified deficiencies in this rulemaking within one year of the EPA's final action conditionally approving MCAQD's NSR submittal. This commitment by the ADEQ is sufficiently specific to justify the conditional approvals within this rulemaking.

Comment 5: Failure to properly define PM₁₀ and PM_2.5 represents a significant deficiency in the permit programs and conditional approval means neither the major nor minor NSR program will adequately provide for protection of the PM₁₀ and PM_2.5 NAAQS. The EPA should disapprove the definitions of PM₁₀ and PM_2.5 rather than conditionally approving the County's permit programs.

Response 5: The EPA proposed conditional approval of Rule 100, in part because the EPA found that the definitions of PM₁₀ and PM_2.5 did not include gaseous emissions, which form particulates. Upon further review, the EPA has determined that our initial analysis was incorrect. The definition of “Regulated NSR Pollutant” contained in both Rule 100 and 240 incorporates the definition of this same term as found in 40 CFR 51.165(a)(1)(xxxvii)(D). The incorporated definition states that “PM_2.5 emissions and PM₁₀ emissions shall include gaseous emissions from a source or activity which condense to form particulate matter at ambient temperatures.” Because Rule 100 is not deficient for the reasons the EPA cited in our proposed action, the merits of this comment and our proposed disapproval are moot and are not discussed further. The EPA recommends, however, that Maricopa County consider revising the definitions of these terms in Rule 100 to provide clarity to the regulated community.

Comment 6: All the provisions of Rule 220, Section 404.3, (except subsection d.), are not approvable because the changes could adversely impact air quality and because of the significance of the changes that could be allowed at a facility.

Response 6: The EPA disagrees that these provisions are not approvable. In our proposed action, the EPA failed to note that the provisions of Rule 220, Section 404 are pre-empted by the requirements of Section 403, which lists the types of changes requiring a permit revision. Pursuant to Subsection 403.2.k., any change that would also result in a minor NSR modification will always require a permit revision, notwithstanding the provisions of Section 404.3. Thus the “exemptions” allowed under Section 404.3 are limited to changes resulting in emission increases lower than the minor NSR modification thresholds. As the EPA discussed earlier in Response 3, Maricopa County provided an analysis in the MCAQD's NSR submittal that provides a reasonable basis for choosing the size of sources (based on emission increases) that require permit regulation to attain or maintain the NAAQS. Accordingly, the EPA no longer finds paragraphs e. and f. of Section 404.3 deficient and is fully approving Rule 220, including Section 404.3.

III. EPA Action

No comments were submitted that change our assessment that the MCAQD's Rules 210, 220, 240, and 241 satisfy the applicable CAA requirements, nor were any comments submitted that change our assessment discussed in our proposal that certain MCAQD rules should be removed from the Arizona SIP. Therefore, as authorized under CAA sections 110(k)(3) and 301(a), and for the reasons set forth in our June 11, 2018 proposed rule, we are finalizing full approval of Rules 210, 220, 240, and 241, as described in Table 1, in the MCAQD portion of the Arizona SIP, and removing from the MCAQD portion of the Arizona SIP the rules identified in Table 2.

While we cannot grant full approval of Rules 100 and 200 at this time, the MCAQD and the ADEQ have satisfactorily committed to address the identified deficiencies by committing to provide the EPA with a SIP submission within one year of this final action, which will include specific rule revisions and/or demonstrations that would adequately address the issues identified in our proposal and Section II above. If the MCAQD, through the ADEQ, submits the rule revisions and/or demonstrations that it has committed to submit by this deadline, and the EPA approves the submission, then the identified deficiencies will be cured. However, if the MCAQD, through the ADEQ, fails to submit these revisions and/or demonstrations within the required timeframe, the conditional approval will become a disapproval, and the EPA will issue a finding of disapproval. The EPA is not required to propose the finding of disapproval.

We did not receive any comments that would cause us to change the determinations that were the basis for our proposed conditional approval action; thus, we are finalizing a conditional approval of the MCAQD's Rules 100 and 200 pursuant to CAA section 110(k)(4). As discussed in Section II of this action, the list of identified rule deficiencies has changed as follows: (1) We are no longer finding the Rule 100 definitions of PM₁₀ and PM_2.5 to be deficient; (2) we are no longer finding the provisions of Rule 220, Sections 404.3.e. and f. to be deficient; and (3) we are approving removal of the definition of “Begin Actual Construction” in Rule 21, Section D.1 (AZ R9-3-101, Paragraph 20) in the current SIP.

This action incorporates these rules into the federally enforceable SIP through revisions to 40 CFR 52.120 (Identification of plan) and 40 CFR 52.119 (Identification of plans—conditional approvals).

IV. Incorporation by Reference

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the MCAQD rules described in Table 1 of this preamble. The EPA has made, and will continue to make, these materials available through https://www.regulations.gov and in hard copy at the EPA Region IX office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by the EPA for inclusion in the Arizona SIP, have been incorporated by reference by the EPA into that plan, are federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of the EPA's approval, and will be incorporated by reference in the next update to the SIP compilation.^[7]

V. Statutory and Executive Order Reviews

Under the Clean Air Act, 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 approve state choices, provided that they meet the applicable criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, 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. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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. The EPA will submit a report containing this action 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. 804(2).

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 June 4, 2019. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action 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 CAA section 307(b)(2).).

List of Subjects in 40 CFR Part 52

• Administrative practice and procedure
• Environmental protection
• Air pollution control
• Carbon monoxide
• Incorporation by reference
• Intergovernmental relations
• Lead
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur dioxide
• Volatile organic compounds

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

Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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 52.119 is amended by adding in paragraph (b) to read as follows:

3. Section 52.120 is amended in paragraph (c) by revising Table 4 to read as follows:

Footnotes