[Federal Register Volume 85, Number 215 (Thursday, November 5, 2020)]
[Rules and Regulations]
[Pages 70483-70487]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-23031]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2020-0173; FRL-10014-85-Region 9]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is finalizing a 
limited approval and limited disapproval of a revision to the Arizona 
State Implementation Plan (SIP). This revision concerns sulfur dioxide 
(SO2) emissions from the primary copper smelter in Hayden, 
Arizona. Specifically, we are taking 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).

DATES: This rule is effective December 7, 2020.

ADDRESSES: The EPA has established a docket for this action under 
Docket No.

[[Page 70484]]

EPA-R09-OAR-2020-0173. All documents in the docket are listed on the 
https://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 
https://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: 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. Proposed Action
II. Public Comments and EPA Responses
III. EPA Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

I. Proposed Action

    On May 22, 2020 (85 FR 31113), the EPA proposed a limited approval 
and limited disapproval of the Arizona Administrative Code section 
described in Table 1 that was submitted by the ADEQ for incorporation 
into the Arizona SIP.

                                             Table 1--Submitted Rule
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               Rule #                         Rule title              Effective date             Submitted
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R18-2-B1302........................  Limits on SO2 Emissions      July 1, 2018..........  April 6, 2017.
                                      from the Hayden Smelter.
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    We proposed a limited approval because we determined that this rule 
improves the SIP and is largely consistent with the relevant CAA 
requirements. We simultaneously proposed a limited disapproval because 
some rule provisions conflict with the requirements of section 110 and 
172(c)(6) of the Act:
    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 attainment plan for the Hayden 2010 
SO2 nonattainment area (``Hayden SO2 Plan''). 
Therefore, the rule does not fully satisfy CAA section 172(c)(6).
    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 continuous 
emission monitoring system (CEMS) requirements, which 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, which could compromise the 
enforceability of the main stack emission limit.
    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.
    Our proposed action and the associated Technical Support Document 
(TSD) \1\ contain more information on the basis for this rulemaking and 
on our evaluation of the submittal.
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    \1\ EPA, ``Technical Support Document for the EPA's Rulemaking 
for the Arizona State Implementation Plan; Arizona Administrative 
Code, Title 18, Chapter 2, Article 13, Part B--Hayden, Arizona, 
Planning Area, R18-2-B1302--Limits on SO2 Emissions from 
the Hayden Smelter,'' April 2020 (``Rule B1302 TSD'').
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II. Public Comments and EPA Responses

    The EPA's proposed action provided a 30-day public comment period. 
During this period, we received comments from Freeport-McMoRan 
Incorporated (FMI), ASARCO LLC (``Asarco''), and ADEQ.2 3 4 
All comments received on the proposal, including the comments from 
ADEQ, are included in the docket for this action. The comments from FMI 
pertain to Rule B1302 and are addressed below. The comments from Asarco 
and ADEQ pertain primarily to our proposed partial approval and partial 
disapproval of the Hayden SO2 Plan,\5\ and we are addressing 
them in our final action on the Hayden SO2 Plan. Copies of 
these responses are also included in the docket for this action.\6\
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    \2\ Letter dated June 22, 2020, from Todd Weaver, Senior 
Counsel, Freeport-McMoRan to Rulemaking Docket EPA-R09-2020-0109, 
Subject: ``Re: Comments on Partial Approval and Partial Disapproval 
of Air Quality Implementation Plans; Arizona Nonattainment Plan for 
the Hayden SO2 Nonattainment Area (EPA-R09-OAR-2020-0109) 
and Limited Approval, Limited Disapproval of Arizona Plan Revisions, 
Hayden Area; Sulfur Dioxide Control Measures--Copper Smelters (EPA-
R09-OAR-2020-0173).''
    \3\ Letter dated June 22, 2020, from Amy Veek, Environmental 
Manager, Asarco Hayden Operations, ASARCO LLC, to Ashley Graham, Air 
Planning Office, Air Division, EPA Region IX, Subject: ``Re: 
Comments of ASARCO LLC on (1) ``Partial Approval and Partial 
Disapproval of Air Quality Implementation Plans; Arizona; 
Nonattainment Plan for the Hayden SO2 Nonattainment Area, 
85 FR 31118 (May 22, 2020), Docket No. EPA-R09-OAR-2020-0109. (2) 
``Limited Approval, Limited Disapproval of Arizona Air Plan 
Revisions, Hayden Area; Sulfur Dioxide Control Measures--Copper 
Smelters, 85 FR 31113 (May 22, 2020), Docket No. EPA-R09-OAR-2020-
0173.''
    \4\ Letter dated June 18, 2020, from Daniel Czecholinski, Air 
Quality Division Director, ADEQ, to Rulemaking Docket EPA-HQ-OAR-
2020-0109, Subject: ``Partial Approval Partial Disapproval of Air 
Quality Implementation Plans; Arizona; Nonattainment Plan for the 
Hayden SO2 Nonattainment Area, Docket ID Number: EPA-HQ-
OAR-2020-0109.''
    \5\ 85 FR 31118 (May 22, 2020).
    \6\ Response to Comments Document for the EPA's Final Actions on 
the ``Arizona State Implementation Plan Revision: Hayden Sulfur 
Dioxide Nonattainment Area for the 2010 SO2 NAAQS'' and 
Rule R18-2-B1302, ``Limits on SO2 Emissions from the 
Hayden Smelter'' (September 2020) (``Response to Comments'').
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    Comment: FMI commented on transitional provisions in R18-2-715(I), 
R18-2-715.01(V), and R18-2-715.02(F). The commenter stated that these 
provisions are intended to clarify the applicability of current SIP-
approved rules for the 1971 SO2 NAAQS in both the Hayden and 
Miami SO2 nonattainment areas, until the effective date of 
the rules for the 2010 SO2 NAAQS.
    The commenter also noted that, when the EPA approved Arizona's 
attainment plan and new rules for the Miami SO2 
nonattainment area,\7\ it did not act on all of the transitional 
provisions. Accordingly, the commenter explained that there is an 
inconsistency between the EPA's SIP-approved rules and ADEQ's rules 
(i.e., a ``SIP gap''). Therefore, the Miami copper smelter must comply 
with both the old SIP rules

[[Page 70485]]

for attaining the 1971 SO2 NAAQS and the new SIP-approved 
rules for attaining the revised 2010 SO2 NAAQS. The 
commenter asserted that ``[t]his unintended consequence therefore 
subjects the copper smelter to an array of duplicative regulatory 
requirements that no longer serve any purpose.'' The commenter also 
noted that ADEQ has sought to remedy the SIP gap issue by submitting a 
request to withdraw A.A.C. R18-2-715(F)(2) and R18-2-715(H), which 
apply only to the copper smelter in the Miami SO2 
nonattainment area, from the Arizona SIP.
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    \7\ 83 FR 56736 (November 14, 2018); 84 FR 8813 (March 12, 
2019).
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    FMI therefore requested that the EPA either amend its proposed 
action on Rule B1302 to include a proposed approval of Arizona's 
revisions to A.A.C. R18-2-715 and R18-2-715.01, or to propose such 
approval in a separate, but concurrent action. The commenter stated 
that, by doing so, the EPA could ``avoid having any period with a SIP 
gap by taking simultaneous final action on A.A.C R18-2-B1302 and R18-2-
715 and R18-2-715.01'' and ``allow the existing SIP rules for attaining 
the 1971 SO2 NAAQS to be properly subsumed by the newly 
approved SIP rules for attaining the revised 2010 SO2 
NAAQS.'' The commenter asserted that such an approach would be 
consistent with the EPA's efforts to implement Executive Order 13771, 
``Reducing Regulation and Controlling Regulatory Costs.''
    Response: The commenter is correct that the EPA has not yet 
proposed to act on the transitional provisions in A.A.C. R18-2-715(I) 
and R18-2-715.01(V). As we noted in the TSD for our proposed action on 
Rule B1302 for the Hayden area, in order to act on the revisions to 715 
and 715.01, ``we need to evaluate the effect of sunsetting the existing 
SIP-approved requirements of those rules in conjunction with the new 
requirements for the Hayden smelter established in Rule B1302.'' \8\ In 
conducting this evaluation, we explained that:
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    \8\ EPA, ``Technical Support Document for the EPA's Rulemaking 
for the Arizona State Implementation Plan; Arizona Administrative 
Code, Title 18, Chapter 2, Article 13, Part B--Hayden, Arizona, 
Planning Area, R18-2-B1302--Limits on SO2 Emissions from 
the Hayden Smelter,'' April 2020 (``Rule B1302 TSD''), 10.

. . . Rule B1302 does not include a numeric fugitive emission limit, 
whereas Rule 715 subsection (G) includes an annual average fugitive 
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limit of 295 lb/hr.

    In order to ensure that the existing fugitive limit of 295 lb/hr 
remains in the SIP, we are not acting on the revisions to Rule 715 
at this time. Similarly, we are not acting on Rule 715.01, which 
includes requirements for SO2 compliance determination 
and monitoring that support the enforceability of the emission 
limits and requirements in Rule 715.\9\
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    \9\ Id.

    In other words, approval of R18-2-715(I) and R18-2-715.01(V) at 
this time would result in the removal of the existing SIP-approved 
fugitive emission limit and associated compliance requirements for the 
Hayden Smelter without a new fugitive emissions limit to replace it. 
For the reasons described in our proposed action on Rule B1302, as well 
as our proposed and final actions on the Hayden SO2 Plan and 
the associated responses to comments, in the absence of a fugitive 
emissions limit, the Plan does not provide for the attainment of the 
2010 SO2 NAAQS.\10\ Therefore, an action to approve R18-2-
715(I) and R18-2-715.01(V)--and thereby remove the existing fugitive 
emissions limit from the SIP without replacement--would interfere with 
attainment of the 1971 and 2010 SO2 NAAQS.\11\ Such an 
action would be impermissible under CAA section 110(l), which prohibits 
the EPA from approving any SIP revision that would interfere with 
applicable requirements concerning attainment and reasonable further 
progress or any other applicable CAA requirement. Therefore, we have 
not proposed to approve the transitional provisions in R18-2-715(I) and 
R18-2-715.01(V).\12\
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    \10\ 85 FR 31113, 31114; Rule B1302 TSD, 7-8; 85 FR 31118, 
31120; Response to Comments.
    \11\ We note that the existing SIP-approved fugitive emissions 
limit of 295 lb/hr, was intended to provide for attainment of the 
1971 SO2 NAAQS and is significantly higher than the 
fugitive emissions levels of 10.6 lb/hr (converter aisle), 40.1 lb/
hr (anode aisle), and 28.7 lb/hr (flash furnace), which were assumed 
in the attainment demonstration in the Hayden SO2 Plan. 
Therefore, the existing limit is not itself sufficient to constrain 
fugitive emissions to the level necessary to provide for attainment 
of the 2010 SO2 NAAQS. Nonetheless, given that this limit 
is the only directly enforceable constraint on fugitive 
SO2 emissions from the facility, we find that its removal 
would interfere with attainment of the 2010 SO2 NAAQS.
    \12\ We note that, while we could disapprove these provisions 
for failure to comply with CAA section 110(l), we believe today's 
final limited disapproval of Rule B1302 and the related partial 
disapproval of the Hayden SO2 plan provide sufficient 
clarity regarding the changes, if made by ADEQ and submitted in a 
SIP revision, that would be needed to result in proposed full 
approval of Rule B1302, as well as R18-2-715(I) and R18-2-715.01(V), 
without having to disapprove the latter provisions at this time.
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    We acknowledge that our inability to approve these provisions has 
resulted in a SIP gap and that that the requirements in Rule 715 that 
apply to the Miami smelter are now duplicative of the requirements in 
SIP-approved rule A.A.C. R18-2-C1302. However, because the transitional 
provisions that apply to Hayden and Miami are inseverable from one 
another (i.e., both are contained within a single paragraph within R18-
2-715(I) and R18-2-715.01(V)), we cannot separately approve the 
transitional provisions for Miami without also approving the provisions 
for Hayden, which is prohibited by CAA section 110(l).
    On March 10, 2020, the EPA received a submittal from ADEQ seeking 
to withdraw A.A.C. R18-2-715(F)(2) and R18-2-715(H), which apply only 
to the Miami SO2 nonattainment area, from the Arizona SIP. 
As noted by the commenter, approval of this SIP revision would remedy 
the SIP gap issue for the Miami area. We intend to act on this 
submittal in a separate rulemaking, as it is outside of the scope of 
this action, which concerns only Rule B1302.

III. EPA Action

    No comments were submitted that change our assessment of the rule 
as described in our proposed action. Therefore, as authorized in 
sections 110(k)(3) and 301(a) of the Act, the EPA is finalizing a 
limited approval of the submitted rule. This action incorporates the 
submitted rule into the Arizona SIP, including those provisions 
identified as deficient. As authorized under section 110(k)(3) and 
301(a), the EPA is simultaneously finalizing a limited disapproval of 
the rule.
    As a result, the offset sanction in CAA section 179(b)(2) will be 
imposed 18 months after the effective date this action, and the highway 
funding sanction in CAA section 179(b)(1) six months after the offset 
sanction is imposed. A sanction will not be imposed if the EPA 
determines that a subsequent SIP submission corrects the identified 
deficiencies before the applicable deadline.

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 
Arizona Administrative Code section described in the amendments to 40 
CFR part 52 set forth below. Therefore, these materials have been 
approved by the EPA for inclusion in the SIP, have been incorporated by 
reference by the EPA into that plan, are fully federally enforceable 
under sections 110 and 113 of the CAA as of the effective date of the 
final rulemaking of EPA's approval, and will be incorporated by 
reference in the next update to the SIP compilation.\13\

[[Page 70486]]

The EPA has made, and will continue to make, these documents 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).
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    \13\ 62 FR 27968 (May 22, 1997).
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V. 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 an Executive Order 13771 regulatory action 
because SIP approvals, including limited approvals, are exempted 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.

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 Populations

    The EPA lacks the discretionary authority to address environmental 
justice in this rulemaking.

L. Congressional Review Act (CRA)

    This rule is exempt from the CRA because it is a rule of particular 
applicability.

M. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by January 4, 2021. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule 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 section 307(b)(2)).

List of Subjects in 40 CFR Part 52

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

    Dated: October 10, 2020.
John Busterud,
Regional Administrator, Region IX.

    For the reasons stated in the preamble the EPA amends part 52, 
chapter I, title 40 of the Code of Federal Regulations 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 Table 2 in paragraph (c), by adding an entry 
for ``R18-2-B1302'' after the entry for ``R18-2-B1301.01'' under the 
heading ``Article 13 (State Implementation Plan Rules For Specific 
Locations)''.


Sec.  52.120   Identification of plan.

* * * * *
    (c) * * *

[[Page 70487]]



                                    Table 2--EPA-Approved Arizona Regulations
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                                                     State effective
         State citation            Title/subject           date        EPA approval date  Additional explanation
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                                                  * * * * * * *
Article 13 (State Implementation Plan Rules For Specific Locations)
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                                                  * * * * * * *
R18-2-B1302....................  Limits on SO2      July 1, 2018.      [Insert Federal    Submitted on April 6,
                                  from the Hayden                       Register           2017. EPA issued a
                                  Smelter.                              Citation],         limited approval and
                                                                        November 5, 2020.  limited disapproval
                                                                                           of Rule R18-2-B1302.
 
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[FR Doc. 2020-23031 Filed 11-4-20; 8:45 am]
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