
[Federal Register Volume 78, Number 24 (Tuesday, February 5, 2013)]
[Proposed Rules]
[Pages 8083-8088]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-02498]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2012-0913; FRL-9775-7]


Partial Disapproval of State Implementation Plan; Arizona; 
Regional Haze Requirements

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.

DATES: Any comments must be received on or before March 7, 2013.

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.
    2. Email: 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 email. 
www.regulations.gov is an ``anonymous

[[Page 8084]]

access'' system, and EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send email directly to EPA, your email address will be automatically 
captured and included as part of the public comment. If EPA cannot read 
your comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment.
    Docket: Generally, documents in the docket for this action are 
available electronically at www.regulations.gov and in hard copy at EPA 
Region IX, 75 Hawthorne Street, San Francisco, California. While all 
documents in the docket are listed at www.regulations.gov, some 
information may be publicly available only at the hard copy location 
(e.g., copyrighted material, large maps), and some may not be publicly 
available in either location (e.g., CBI). To inspect the hard copy 
materials, please schedule an appointment during normal business 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?
    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 
Populations

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 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 
``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 range \1\ 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).
---------------------------------------------------------------------------

    \1\ Visual range is the greatest distance, in kilometers or 
miles, at which a dark object can be viewed against the sky.
---------------------------------------------------------------------------

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 areas \2\ which 
impairment results from 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.
---------------------------------------------------------------------------

    \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 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 area.''
---------------------------------------------------------------------------

    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

[[Page 8085]]

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 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.''
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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 Plateau \5\ 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, and Wyoming.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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'').
---------------------------------------------------------------------------

    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 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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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 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
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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. 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\
---------------------------------------------------------------------------

    \9\ Letter from Stephen A. Owens, ADEQ, to Wayne Nastri, EPA 
(December 24, 2008).
---------------------------------------------------------------------------

    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

[[Page 8086]]

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 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.\10\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

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 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.\14\
---------------------------------------------------------------------------

    \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 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.''
---------------------------------------------------------------------------

III. The State's Submittal

A. What is the purpose of the state's submittal?

    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 man-made 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 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?

    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

[[Page 8087]]

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 clean-air 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 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\
---------------------------------------------------------------------------

    \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 
51.309.'' (emphasis added)).
---------------------------------------------------------------------------

    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 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 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\
---------------------------------------------------------------------------

    \16\ 74 FR 2392 (January 15, 2009).
    \17\ National Parks Conservation Association v. Jackson (D.D.C. 
Case 1:11-cv-01548).
    \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.
---------------------------------------------------------------------------

    We will accept comments from the public on the proposed partial 
disapproval for the next 30 days.

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 in-and-of itself create any new 
information collection burdens but simply disapproves certain State 
requirements for inclusion into the SIP. Burden is defined at 5 CFR 
1320.3(b).

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions. For purposes of assessing the impacts of today's rule on 
small entities, small entity is defined as: (1) A small business as 
defined by the Small Business Administration's (SBA) regulations at 13 
CFR 121.201; (2) a small governmental jurisdiction that is a government 
of a

[[Page 8088]]

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 issues related 
to such impacts.

D. Unfunded Mandates Reform Act

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

E. Executive Order 13132, Federalism

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

F. Executive Order 13175, Coordination With Indian Tribal Governments

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

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

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

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

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

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 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 Congress, through OMB, explanations when the Agency decides not 
to use available and applicable voluntary consensus standards.
    The EPA believes that this action is not subject to requirements of 
Section 12(d) of NTTAA because application of those requirements would 
be inconsistent with the Clean Air Act.

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

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

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Volatile 
organic compounds.

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

    Dated: January 23, 2013.
Jared Blumenfeld,
Regional Administrator, Region IX.
[FR Doc. 2013-02498 Filed 2-4-13; 8:45 am]
BILLING CODE 6560-50-P


