[Federal Register Volume 85, Number 100 (Friday, May 22, 2020)]
[Proposed Rules]
[Pages 31113-31116]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-10587]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2020-0173; FRL-10009-01-Region 9]


Limited Approval, Limited Disapproval of Arizona Air Plan 
Revisions, Hayden Area; Sulfur Dioxide Control Measures--Copper 
Smelters

AGENCY: Environmental Protection Agency (EPA).

[[Page 31114]]


ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing a 
limited approval and limited disapproval of revisions to the Arizona 
State Implementation Plan (SIP). This revision concerns sulfur dioxide 
(SO2) emissions from the primary copper smelter in Hayden, 
Arizona. We are proposing action on a local rule submitted by the 
Arizona Department of Environmental Quality (ADEQ) that regulates these 
emissions under the Clean Air Act (CAA or the Act). We are taking 
comments on this proposal and plan to follow with a final action.

DATES: Comments must be received on or before June 22, 2020.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2020-0173 at http://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 the person 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 http://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Kevin Gong, EPA Region IX, 75 
Hawthorne St., San Francisco, CA 94105. By phone: (415) 972-3073 or by 
email at gong.kevin@epa.gov.

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

Table of Contents

I. The State's Submittal
    A. What rule did the State submit?
    B. Are there other versions of this rule?
    C. What is the purpose of the submitted rule?
II. The EPA's Evaluation and Action
    A. How is the EPA evaluating the rule?
    B. Does the rule meet the evaluation criteria?
    C. What are the rule deficiencies?
    D. EPA Recommendations To Further Improve the Rule
    E. Proposed Action and Public Comment
III. Incorporation by Reference
IV. Statutory and Executive Order Reviews

I. The State's Submittal

A. What rule did the State submit?

    Table 1 lists the rule addressed by this proposal with the dates 
that it was adopted and submitted by the ADEQ.

                                             Table 1--Submitted Rule
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               Rule #                        Rule title            Effective date              Submitted
----------------------------------------------------------------------------------------------------------------
R18-2-B1302.........................  Limits on SO2 Emissions  July 1, 2018..........  April 6, 2017.
                                       from the Hayden
                                       Smelter.
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    On July 17, 2017, the EPA determined that the submittal for the 
rules and documents in Table 1 met the completeness criteria in 40 CFR 
part 51 Appendix V, which must be met before formal EPA review.\1\
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    \1\ Letter dated July 17, 2017 from Elizabeth Adams, Director, 
Air Division, EPA, Region IX to Timothy S. Franquist, Director, Air 
Quality Division, ADEQ.
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B. Are there other versions of this rule?

    There are no previous versions of R18-2-B1302 (``Rule B1302'') in 
the SIP.

C. What is the purpose of the submitted rule?

    On June 22, 2010, the EPA promulgated a new 1-hour primary sulfur 
dioxide (SO2) National Ambient Air Quality Standard (NAAQS) 
of 75 parts per billion (ppb). On August 5, 2013, the EPA designated 
the Hayden area within Arizona as nonattainment for the 2010 
SO2 NAAQS. This designation became effective on October 4, 
2013. Section 191(a) of the CAA directs states to submit SIPs for areas 
designated as nonattainment for the SO2 NAAQS to the EPA 
within 18 months of the effective date of the designation, i.e., by no 
later than April 4, 2015, in this case. Under CAA section 192(a), these 
plans are required to have measures that will help their respective 
areas attain the NAAQS as expeditiously as practicable, but no later 
than 5 years from the effective date of designation, which for the 
Hayden SO2 NAA was October 4, 2018.
    ADEQ submitted an attainment plan for the Hayden SO2 
nonattainment area on March 9, 2017 (``Hayden SO2 Plan'') 
and submitted associated final rules, including Rule B1302, on April 6, 
2017.\2\ Rule R18-2-B1302 establishes control requirements for 
SO2 emissions from the copper smelter located in the Hayden, 
AZ nonattainment area (``Hayden Smelter'').
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    \2\ Letters dated March 8, 2017 and April 6, 2017 from Timothy 
S. Franquist, Director, Air Quality Division, ADEQ, to Alexis 
Strauss, Acting Regional Administrator, EPA, Region IX. Although the 
cover letter for the Hayden SO2 Plan was dated March 8, 
2017, the Plan was transmitted to the EPA on March 9, 2017.
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II. The EPA's Evaluation and Action

A. How is the EPA evaluating the rule?

    Rules in a SIP 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)), and must not modify certain SIP control requirements 
in nonattainment areas without ensuring equivalent or greater emissions 
reductions (see CAA section 193). CAA section 172(c)(1) requires that 
SIPs for nonattainment areas provide for the implementation of all 
reasonably available control measures (RACM), including any reasonably 
available control technology (RACT), in order to provide for attainment 
of the NAAQS, and CAA section 172(c)(6) requires that such SIPs 
``include enforceable emission limitations, and such other control 
measures means or techniques . . . as well as schedules and timetables 
for compliance, as may be necessary or appropriate to provide for 
attainment of such standard in such area by the applicable attainment 
date . . .''
    Guidance and policy documents that we use to evaluate 
enforceability, revision and rule stringency requirements for the 
applicable criteria pollutants include the following:
     ``State Implementation Plans; General Preamble for the 
Implementation of Title I of the Clean Air Act Amendments of 1990,'' 57 
FR

[[Page 31115]]

13498 (April 16, 1992); 57 FR 18070 (April 28, 1992).
     ``Issues Relating to VOC Regulation Cutpoints, 
Deficiencies, and Deviations,'' EPA, May 25, 1988 (the Bluebook, 
revised January 11, 1990).
     ``Guidance Document for Correcting Common VOC & Other Rule 
Deficiencies,'' EPA Region 9, August 21, 2001 (the Little Bluebook).
     ``Guidance for 1-Hour SO2 Nonattainment Area 
SIP Submissions,'' EPA Office of Air Quality Planning and Standards 
(April 23, 2014).

B. Does the rule meet the evaluation criteria?

    Rule B1302 improves the SIP by establishing a more stringent 
SO2 emission limit for the main stack at the Hayden smelter 
than the existing requirements in state law, as well as new operational 
standards and monitoring, recordkeeping and reporting requirements for 
the smelter. The rule is partly consistent with CAA requirements and 
relevant guidance regarding enforceability and SIP revisions. Rule 
provisions that do not meet the evaluation criteria are summarized 
below and discussed further in the technical support document (TSD) for 
this action.

C. What are the rule deficiencies?

    These aspects of the rule do not satisfy the requirements of 
section 110 and 172(c)(6) of the Act and prevent full approval of the 
SIP revision:
    1. The rule does not contain any numeric emission limit(s) or 
ongoing monitoring requirements corresponding to the levels of fugitive 
emissions that were modeled in the Hayden SO2 Plan.\3\ 
Therefore, the rule does not fully satisfy CAA section 172(c)(6).
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    \3\ The EPA is proposing to partially approve and partially 
disapprove the Hayden SO2 Plan in a separate rulemaking 
action.
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    2. Rule subsection (E)(4) provides an option for alternative 
sampling points that could undermine the enforceability of the stack 
emission limit by providing undue flexibility to change sampling points 
without undergoing a SIP revision.
    3. Rule subsection (E)(6) allows for just under 10% of total 
facility SO2 emissions annually to be exempt from CEMS; this 
could compromise the enforceability of the main stack emission limit.
    4. The rule lacks a method for measuring or calculating emissions 
from the shutdown ventilation flue; this could compromise the 
enforceability of the main stack emission limit.\4\
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    \4\ Rule B1302, section (F)(2) contains a procedure for 
substituting emissions data for compliance demonstration purposes, 
``when no valid hour or hours of data have been recorded by a 
continuous monitoring system.'' In the absence of a method for 
calculating hourly emissions, it is unclear when this procedure is 
to be used.
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    5. The rule lacks a method for calculating hourly SO2 
emissions, so it is unclear what constitutes a ``valid hour'' for 
purposes of allowing data substitution.

D. EPA Recommendations To Further Improve the Rule

    In addition to detailing the rule deficiencies listed in the 
previous section, the TSD includes several other recommendations for 
improvement for the next time the State modifies the rule.

E. Proposed Action and Public Comment

    As authorized in sections 110(k)(3) and 301(a) of the Act, the EPA 
is proposing a limited approval and limited disapproval of the 
submitted rule. We will accept comments from the public on this 
proposal until June 22, 2020. If finalized, this action would 
incorporate the submitted rule into the SIP, including those provisions 
identified as deficient. This approval is limited because the EPA is 
simultaneously proposing a limited disapproval of the rule under 
section 110(k)(3).
    Rule B1302 is relied upon by Arizona in the Hayden SO2 
Attainment State Implementation Plan, which is required under CAA title 
I, part D. Therefore, if finalized, this disapproval would trigger 
sanctions under CAA section 179 and 40 CFR 52.31, unless the EPA 
determines that a subsequent SIP revision corrects the rule 
deficiencies within 18 months of the effective date of the final 
action.
    Note that the submitted rule has been adopted by ADEQ, and the 
EPA's final limited disapproval would not prevent the State from 
enforcing it. The limited disapproval also would not prevent any 
portion of the rule from being incorporated by reference into the 
federally enforceable SIP.\5\
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    \5\ See Memorandum dated July 21, 1992 from John Calcagni, 
Director Air Quality Management Division, to EPA Regional Air 
Directors, Regions I-X, Subject: ``Processing of State 
Implementation Plan (SIP) Submittals.''
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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 the ADEQ rules described in Table 1 of this preamble. 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 the 
person identified in the FOR FURTHER INFORMATION CONTACT section of 
this preamble for more information).

IV. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at http://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. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is not expected to be an Executive Order 13771 
regulatory action because this action is not significant under 
Executive Order 12866.

C. 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.

D. 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.

E. 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.

F. 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 31116]]

G. 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.

H. 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. This action is not subject to 
Executive Order 13045 because it does not impose additional 
requirements beyond those imposed by state law.

I. 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.

J. 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.

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

    The 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, Sulfur dioxide, Reporting and 
recordkeeping requirements.

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

    Dated: May 12, 2020.
 John Busterud,
Regional Administrator, Region IX.
[FR Doc. 2020-10587 Filed 5-21-20; 8:45 am]
 BILLING CODE 6560-50-P


