[Federal Register Volume 87, Number 51 (Wednesday, March 16, 2022)]
[Rules and Regulations]
[Pages 14802-14805]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-05367]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2017-0041; FRL-9572-01-R9]


Approval of Arizona Air Plan Revisions, Arizona Department of 
Environmental Quality and Maricopa County Air Quality Department

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to approve revisions to the Arizona Department of Environmental 
Quality (ADEQ) and Maricopa County Air Quality Department (MCAQD) 
portions of the Arizona State Implementation Plan (SIP). These 
revisions were submitted by ADEQ and MCAQD in response to the EPA's 
June 12, 2015 finding of substantial inadequacy and SIP call for 
certain provisions in the SIP related to excess emissions during 
startup, shutdown, and malfunction (SSM) events. The EPA is finalizing 
approval of the SIP revisions because the Agency has determined that 
they are in accordance with the requirements for SIP provisions under 
the Clean Air Act (CAA or the Act) and correct deficiencies identified 
in the June 12, 2015 SIP call.

DATES: These rules are effective on April 15, 2022.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R09-OAR-2017-0041. All documents in the docket are 
listed on the http://www.regulations.gov website. Although listed in 
the index, some information is not publicly available, e.g., 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, is not placed on the internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available through http://www.regulations.gov, or please 
contact the person identified in the FOR FURTHER INFORMATION CONTACT 
section for additional availability information. If you need assistance 
in a language other than English or if you are a person with 
disabilities who needs a reasonable accommodation at no cost to you, 
please contact the person identified in the FOR FURTHER INFORMATION 
CONTACT section.

FOR FURTHER INFORMATION CONTACT: Christine Vineyard, EPA Region IX, 
(415) 947-4125, [email protected].

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

Table of Contents

I. Background
II. Public Comments and EPA Responses
III. EPA Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

I. Background

    On February 22, 2013, the EPA issued a Federal Register notice of 
proposed rulemaking outlining EPA's policy at the time with respect to 
SIP provisions related to periods of SSM. EPA analyzed specific SSM SIP 
provisions and explained how each one either did or did not comply with 
the CAA with regard to excess emission events.\1\ For each SIP 
provision that EPA determined to be inconsistent with the CAA, EPA 
proposed to find that the existing SIP provision was substantially 
inadequate to meet CAA requirements and thus proposed to issue a SIP 
call under CAA section 110(k)(5). On September 17, 2014, EPA issued a 
document supplementing and revising what the Agency had previously 
proposed on February 22, 2013, in light of a D.C. Circuit decision that 
determined the CAA precludes authority of the EPA to create affirmative 
defense provisions

[[Page 14803]]

applicable to private civil suits. EPA outlined its updated policy that 
affirmative defense SIP provisions are not consistent with CAA 
requirements. EPA proposed in the supplemental proposal document to 
apply its revised interpretation of the CAA to specific affirmative 
defense SIP provisions and proposed SIP calls for those provisions 
where appropriate (79 FR 55920, September 17, 2014).
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    \1\ State Implementation Plans: Response to Petition for 
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls to 
Amend Provisions Applying to Excess Emissions During Periods of 
Startup, Shutdown, and Malfunction, 78 FR 12460 (February 22, 2013).
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    On June 12, 2015, pursuant to CAA section 110(k)(5), EPA finalized 
``State Implementation Plans: Response to Petition for Rulemaking; 
Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings 
of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying 
to Excess Emissions During Periods of Startup, Shutdown and 
Malfunction,'' hereafter referred to as the ``2015 SSM SIP Action.'' 
\2\ The 2015 SSM SIP Action clarified, restated, and updated EPA's 
interpretation that SSM exemption and affirmative defense SIP 
provisions are inconsistent with CAA requirements. The 2015 SSM SIP 
Action found that certain SIP provisions in 36 states were 
substantially inadequate to meet CAA requirements and issued a SIP call 
to those states to submit SIP revisions to address the inadequacies. 
The EPA established an 18-month deadline by which the affected states 
had to submit such SIP revisions. States were required to submit 
corrective revisions to their SIPs in response to the SIP calls by 
November 22, 2016.
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    \2\ 80 FR 33839.
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    The EPA issued a Memorandum in October 2020 (2020 Memorandum), 
which stated that certain provisions governing SSM periods in SIPs 
could be viewed as consistent with CAA requirements.\3\ Importantly, 
the 2020 Memorandum stated that it ``did not alter in any way the 
determinations made in the 2015 SSM SIP Action that identified specific 
state SIP provisions that were substantially inadequate to meet the 
requirements of the Act.'' Accordingly, the 2020 Memorandum had no 
direct impact on the SIP call issued to ADEQ and MCAQD in 2015. It also 
did not alter the EPA's prior proposal from 2017 to approve the ADEQ 
and MCAQD SIP revisions at issue in this action. The 2020 Memorandum 
did, however, indicate the EPA's intent at the time to review SIP calls 
that were issued in the 2015 SSM SIP Action to determine whether the 
EPA should maintain, modify, or withdraw particular SIP calls through 
future agency actions.
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    \3\ October 9, 2020, memorandum ``Inclusion of Provisions 
Governing Periods of Startup, Shutdown, and Malfunctions in State 
Implementation Plans,'' from Andrew R. Wheeler, Administrator.
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    On September 30, 2021, EPA's Deputy Administrator withdrew the 2020 
Memorandum and announced the EPA's return to the policy articulated in 
the 2015 SSM SIP Action (2021 Memorandum).\4\ As articulated in the 
2021 Memorandum, SIP provisions that contain exemptions or affirmative 
defense provisions are not consistent with CAA requirements and, 
therefore, generally are not approvable if contained in a SIP 
submission. This policy approach is intended to ensure that all 
communities and populations, including minority, low-income and 
indigenous populations overburdened by air pollution, receive the full 
health and environmental protections provided by the CAA.\5\ The 2021 
Memorandum also retracted the prior statement from the 2020 Memorandum 
of EPA's plans to review and potentially modify or withdraw particular 
SIP calls. That statement no longer reflects EPA's intent. EPA intends 
to implement the principles laid out in the 2015 SSM SIP Action as the 
Agency takes action on SIP submissions, including ADEQ's and MCAQD's 
SIP submittal, provided in response to the 2015 SIP call.
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    \4\ September 30, 2021, memorandum ``Withdrawal of the October 
9, 2020, Memorandum Addressing Startup, Shutdown, and Malfunctions 
in State Implementation Plans and Implementation of the Prior 
Policy,'' from Janet McCabe, Deputy Administrator.
    \5\ 80 FR 33985.
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    With regards to ADEQ and MCAQD, the SIP call identified R18-2-310 
and Rule 140 because they contained improper affirmative defenses for 
excess emissions during startup, shutdown, and malfunction events. On 
March 9, 2017, the EPA proposed to approve removal of R18-2-310 and 
Rule 140 from the Arizona SIP.\6\
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    \6\ 82 FR 13084.

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                                                                                   Removed from
           Local agency                Rule No.              Rule title              state law       Submitted
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ADEQ..............................       R18-2-310  Affirmative Defense for             09/07/16        11/17/16
                                                     Excess Emissions Due to
                                                     Malfunctions, Startup, and
                                                     Shutdown.
MCAQD.............................             140  Excess Emissions............        08/17/16        11/18/16
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    As discussed in the proposal, EPA proposed to approve the removal 
of R18-2-310 and Rule 140 from the ADEQ and MCAQD portions of the 
Arizona SIP because such removal is consistent with CAA requirements 
and would correct the deficiency identified by the Agency in the 2015 
SSM SIP Action.

II. Public Comments and EPA Responses

    The EPA's proposed action provided a 30-day public comment period. 
EPA acknowledges that over four years have elapsed since the comment 
period closed. No additional comment period is needed because nothing 
in the intervening time period--including the issuance and subsequent 
withdrawal of the 2020 Memorandum--changed the basis for EPA's proposed 
action or the public's opportunity to view and comment on that basis. 
Accordingly, the March 9, 2017 notice provided the public with a full 
opportunity to comment on the issues raised by the proposed action. 
Three comments expressed support for the proposed action. A summary of 
the fourth comment from the Salt River Project Agricultural Improvement 
and Power District (``SRP'' or ``commenter'') and EPA's response is 
provided below.
    Comment: The commenter states that it is inappropriate for the EPA 
to finalize its proposed approval of Arizona's response to the SSM SIP 
call until litigation before the United State Court of Appeals for the 
District of Columbia (D.C. Circuit) is resolved. In support of this 
claim, the commenter states that if the D.C. Circuit rules in favor of 
the petitioners who have challenged the 2015 SSM SIP call, the Arizona 
SIP will need to be revised again to reinsert the SSM provisions.
    Response: The EPA respectfully disagrees with this comment. The 
Agency acknowledges that there exist pending challenges to the 2015 SSM 
SIP action in the D.C. Circuit. However, there is no requirement or 
expectation that EPA must postpone action while awaiting a court 
decision. ADEQ and MCAQD have submitted SIP revisions to the Agency 
that are fully approvable for

[[Page 14804]]

the reasons outlined in the 2017 proposal notice. As a result, EPA has 
determined that it is appropriate to take action to approve the ADEQ 
and MCAQD SIP revisions in accordance with applicable CAA requirements. 
Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). The commenter 
has pointed to no alleged deficiency or other aspect that would lead 
the Agency to determine that the SIP revisions should be disapproved or 
that full approval of the SIP revisions is not otherwise appropriate.
    We are also not persuaded by the commenter's assertion that the 
ADEQ and MCAQD portions of the Arizona SIP will need to be revised if 
the D.C. Circuit rules in favor of the petitioners. The CAA contains no 
requirement that affirmative defense provisions be included in SIPs. 
Therefore, there would be no obligation on states to submit such 
provisions, regardless of the outcome in the D.C. Circuit litigation.
    As we recently reaffirmed in the 2021 Memorandum, EPA is 
implementing policy consistent with that outlined in the 2015 SSM SIP 
Action. That policy aligns with previous court decisions, including the 
D.C. Circuit's ruling in 2008, which found that inclusion of SSM 
exemptions in section 112 standards is not allowed under the CAA due to 
the generally applicable definition of emission limitations.\7\ 
Additionally, in 2014 the D.C. Circuit vacated a provision in EPA 
regulations that allowed an affirmative defense if it met specific 
criteria. The court stated that EPA lacked authority to create such a 
defense because it would impermissibly encroach upon the authority of 
federal courts to find liability or impose remedies.\8\ It was in light 
of the 2008 and 2014 court cases, as well as concerns about the public 
health impacts of SSM, that led EPA in its 2015 action to clarify and 
update its SSM policy to explain that automatic exemptions, 
discretionary exemptions, overly broad enforcement discretion 
provisions, and affirmative defense provisions like the ones at issue 
in today's action, will generally be viewed as inconsistent with CAA 
requirements.
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    \7\ Sierra Club v. Johnson 551 F.3d 1019 (D.C. Cir. 2008).
    \8\ NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014).
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III. EPA Action

    No comments were submitted that change our assessment of the rules 
as described in our proposed action. Therefore, as authorized in 
section 110(k)(3) of the Act and for the reasons identified in the 2017 
proposal, the EPA is fully approving the removal of these rules from 
the ADEQ and MCAQD portions of the Arizona SIP. The Agency's final 
approval of this submission fully corrects the inadequacies in the ADEQ 
and MCAQD portions of the Arizona SIP that were identified in the EPA's 
2015 SSM SIP Action.

IV. Incorporation by Reference

    In this document, the EPA is amending regulatory text that includes 
incorporation by reference. As described in Section I, Background, of 
this preamble and set forth in the amendments to 40 CFR part 52 below, 
EPA is removing provisions from the Arizona Administrative Code and 
Maricopa County portions of the Arizona State Implementation Plan, 
which is incorporated by reference in accordance with the requirements 
of 1 CFR part 51. The EPA has made and will continue to make the State 
Implementation Plan generally available through www.regulations.gov and 
at the EPA Region 9 Office (please contact the person identified in the 
FOR FURTHER INFORMATION CONTACT section of this preamble for more 
information).

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 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);
     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 May 16, 2022. 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

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it extend the time within which a petition for judicial review may be 
filed, and shall not postpone the effectiveness of such rule or action. 
This action may not be challenged later in proceedings to enforce its 
requirements (see section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

    Dated: March 8, 2022.
Martha Guzman Aceves,
Regional Administrator, Region IX.

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

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for Part 52 continues to read as follows:

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

Subpart D--Arizona

0
2. In Sec.  52.120, amend paragraph (c) by:
0
a. In Table 2 removing the entry for ``R18-2-310'', and
0
b. In Table 4 removing the entry for ``Rule 140''.

[FR Doc. 2022-05367 Filed 3-15-22; 8:45 am]
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