[Federal Register Volume 86, Number 40 (Wednesday, March 3, 2021)]
[Proposed Rules]
[Pages 12310-12312]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-03753]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2020-0735; FRL-10020-57-Region 9]


Air Plan Approval; Arizona; Miami Copper Smelter Sulfur Dioxide 
Control Measures

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve revisions to the Arizona State Implementation Plan (SIP). These 
revisions concern emissions of sulfur dioxide (SO2) from the 
copper smelter in Miami, Arizona. We are proposing to approve the 
rescission of two Arizona Department of Environmental Quality (ADEQ) 
Arizona Administrative Code (A.A.C.) provisions from the Arizona SIP 
that are no longer needed to regulate this emission source 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 April 2, 2021.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2020-0735 at https://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 https://www.epa.gov/dockets/commenting-epa-dockets. 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. The State's Submittal
    A. Of what rule provisions did the State request rescission?
    B. What was the purpose of the SIP-approved rule provisions, and 
what is the purpose of the State's rescission request?
II. The EPA's Evaluation and Action
    A. How is the EPA evaluating the request for rescission?
    B. Does the rule rescission meet the evaluation criteria?
    C. Public Comment and Proposed Action
III. Incorporation by Reference
IV. Statutory and Executive Order Reviews

I. The State's Submittal

A. Of what rule provisions did the State request rescission?

    Table 1 lists the rule provisions addressed by this proposal with 
the dates that they were adopted, submitted, and approved. On March 10, 
2020, ADEQ submitted a formal request to the EPA requesting that the 
EPA rescind these provisions from the SIP.\1\
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    \1\ Letter from Daniel Czecholinski, Director, Air Quality 
Division, ADEQ, to John Busterud, Regional Administrator, EPA Region 
IX, RE: Miami SO2 Nonattainment Area State Implementation 
Plan Revision (undated; received by EPA on March 10, 2020).

                          Table 1--Rule for Which Rescission From the SIP is Requested
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    Local agency          Citation          Rule title               Adopted               SIP approval date
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ADEQ................  A.A.C. R18-2-    Standards of          March 7, 2009..........  September 23, 2014.
                       715(F)(2) and    Performance for
                       (H).             Existing Primary
                                        Copper Smelters;
                                        Site-specific
                                        Requirements.
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    On September 10, 2020 the submittal for the rescission of A.A.C. 
R18-2-715(F)(2) and (H) was deemed by operation of law to meet the 
completeness criteria in 40 CFR part 51 appendix V, which must be met 
before formal EPA review.

B. What was the purpose of the SIP-approved rule provisions, and what 
is the purpose of the State's rescission request?

    ADEQ adopted A.A.C. R18-2-715(F)(2) and (H) in order to establish 
source-specific SO2 emissions limits for the copper smelter 
located in Miami, Arizona (``Miami Smelter''). ADEQ also adopted 
compliance and monitoring provisions for these limits in A.A.C. R18-2-
715.01. These provisions were necessary to provide for attainment of 
the 1971 National Ambient Air Quality Standard (NAAQS), for which the 
Miami area was designated nonattainment in 1978.\2\ The State of 
Arizona submitted regulations to the EPA in 1979 and 1980 to reduce 
emissions from criteria pollutant sources in Miami and across the 
state. The EPA approved these measures on January 14, 1983, but found 
that further analysis and control of smelter fugitive emissions was 
needed.\3\ The Miami smelter operators submitted fugitive emissions 
studies in the 1990s to better estimate fugitive emissions during 
typical operation to eventually determine maximum emissions. This 
analysis resulted in the implementation of further control measures and 
emission limits at the Miami Smelter to provide for attainment of the 
1971 SO2 NAAQS. On November 1, 2004, the EPA approved rules 
R18-2-715 (sections F, G, and H), R18-2-715.01 and R18-2-715.02, which 
codified these new requirements.\4\ In 2007, the EPA

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redesignated the Miami area to attainment for the 1971 NAAQS.\5\
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    \2\ The Miami SO2 NAA (nonattainment area) initially 
included all of Gila County (43 FR 8968, March 3, 1978), but its 
boundaries were later revised to include only the nine townships in 
and around Miami (44 FR 21261, April 10, 1979).
    \3\ 48 FR 1717. These provisions were codified within A.A.C. R9-
3-515, which was the predecessor to A.A.C. R18-2-715.
    \4\ 69 FR 63324. The EPA later approved minor revisions to 
A.A.C. R18-2-715. 79 FR 56655 (September 23, 2014).
    \5\ 72 FR 3061 (January 24, 2007).
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    In 2010, the EPA promulgated a new 1-hour SO2 NAAQS, and 
simultaneously established provisions for revoking the 1971 
SO2 NAAQS.\6\ The EPA designated the Miami area as 
nonattainment for the 2010 SO2 NAAQS in 2013.\7\ ADEQ 
submitted a new SO2 attainment plan and rule for Miami (R18-
2-C1302) in 2017 to comply with CAA requirements for 2010 
SO2 nonattainment areas. ADEQ also submitted new 
transitional provisions in A.A.C. R18-2-715(I) and R18-2-715.01(V) in 
order to sunset the existing rule provisions upon the effective date of 
R18-2-B1302, which regulates SO2 emissions from the copper 
smelter in Hayden, Arizona along with the provisions for Miami, Arizona 
in R18-2-C1302.
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    \6\ 75 FR 35520 (June 22, 2010).
    \7\ 78 FR 47191 (August 5, 2013; effective October 4, 2013). 
This action also established an effective date for revocation of the 
1971 SO2 NAAQS in the Miami area of October 4, 2014. See 
40 CFR 50.4(e).
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    The EPA approved A.A.C. R18-2-C1302 into the Arizona SIP on 
November 14, 2018,\8\ and approved the Miami SO2 attainment 
plan on March 12, 2019.\9\ However, we have not yet proposed to act on 
the transitional provisions in A.A.C. R18-2-715(I) and R18-2-715.01(V). 
As explained in our recent final limited approval and limited 
disapproval of R18-2-B1302 (``Limits on SO2 Emissions from 
the Hayden Smelter'') ``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).'' \10\ Therefore, the Miami smelter 
remains subject to the emission limits in R18-2-715(F)(2) and (H) and 
associated requirements in R18-2-715.01.
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    \8\ 83 FR 56736.
    \9\ 84 FR 8813.
    \10\ 85 FR 70483, 70485 (November 5, 2020).
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    ADEQ is requesting that EPA rescind R18-2-715(F)(2) and (H) from 
the Arizona SIP in order to remove the emissions limits and associated 
requirements that were established to meet the now-revoked 1971 
SO2 NAAQS. In support of this request, ADEQ submitted a 
demonstration of how rescission of these provisions from the SIP would 
comply with applicable CAA requirements.\11\
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    \11\ ``State Implementation Plan Revision; Miami SO2 
Nonattainment Area Demonstration of Compliance with Clean Air Act 
Sections 110(l) and 193 for the 2010 SO2 National Ambient 
Air Quality Standards,'' dated February 27, 2020.
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II. The EPA's Evaluation and Action

A. How is the EPA evaluating the request for rescission?

    Once a rule has been approved as part of a SIP, the rescission of 
that rule from the SIP constitutes a SIP revision. To approve such a 
revision, the EPA must determine whether the revision meets relevant 
CAA criteria for stringency, and complies with restrictions on 
relaxation of SIP measures under CAA section 110(l), and the General 
Savings Clause in CAA section 193 for SIP-approved control requirements 
in effect before November 15, 1990.
    Stringency: 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.
    Plan Revisions: States must demonstrate that SIP revisions would 
not interfere with attainment, reasonable further progress (RFP) or any 
other applicable requirement of the CAA under the provisions of CAA 
section 110(l). Therefore, consistent with CAA section 110(l) 
requirements, ADEQ must demonstrate that the rescission of R18-2-
715(F)(2) and (H) from the SIP would not interfere with attainment and 
RFP of the NAAQS or any other applicable CAA requirement.
    General Savings Clause: CAA section 193 prohibits the modification 
of any control requirement in effect, or required to be adopted by an 
order, settlement agreement or plan in effect before November 15, 1990, 
in areas designated as nonattainment for an air pollutant unless the 
modification ensures equivalent or greater emission reductions of the 
relevant pollutant.

B. Does the rule rescission meet the evaluation criteria?

    The EPA previously determined that R18-2-C1302 and the Miami 
SO2 attainment plan meet the requirements for RACM/RACT for 
the Miami 2010 SO2 nonattainment area.\12\ We have also 
found that the emissions limits in R18-2-C1302 are more stringent than 
those in R18-2-715.\13\ In particular, the 30-day rolling average 
emission limit of 142.45 pounds per hour (lb/hr) in R18-2-C1302(C), 
which covers both stack and fugitive emissions, is far more stringent 
than the annual average limit of 2,420 lb/hr for combined stack and 
fugitive emissions in R18-2-715(H). The 142.45 lb/hr limit in R18-2-
C1302 is also clearly more stringent than annual average emission limit 
of 604 lb/hr and 3-hour limits of 712--8,678 lb/hr for stack emissions 
in R18-2-715(F)(2).
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    \12\ 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 -12; 84 FR 
8813, March 12, 2019.
    \13\ Rule B1302 TSD, 12-13.
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    We also note that while ADEQ is not requesting rescission of the 
compliance and monitoring requirements in R18-2-715.01, the removal of 
R18-2-715(F)(2) and (H) from the SIP would effectively render the 
provisions of R18-2-715.01 inapplicable to the Miami smelter.\14\ We 
find that the nullification of these provisions with respect to the 
Miami smelter would not interfere with any CAA requirements because the 
Miami smelter is already required to comply with the more prescriptive 
requirements for compliance and monitoring in R18-2-C1302(E).
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    \14\ The Hayden Smelter will remain subject to the applicable 
requirements of both R18-2-715 and R18-2-715.01 until we take action 
to remove those requirements from the SIP or approve the 
transitional provisions in A.A.C. R18-2-715(I) and R18-2-715.01(V) 
into the SIP.
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    For the foregoing reasons, we propose to find that the rescission 
of R18-2-715(F)(2) and (H) from the Arizona SIP would not interfere 
with any CAA requirements and would therefore comply with CAA section 
110(l). We also propose to find that our prior approval of R18-2-C1302 
ensures equivalent or greater emission reductions of SO2 
than the rescission of R18-2-715(F)(2) and (H) and therefore satisfies 
the requirements of CAA section 193.

C. Public Comment and Proposed Action

    As authorized in section 110(k)(3) of the Act, the EPA proposes to 
approve the rescission of R18-2-715(F)(2) and (H) from the Arizona SIP 
because these provisions are no longer needed to meet any CAA 
requirement and rescission would comply with CAA sections 110(l) and 
193. We will accept comments from the public on this proposal until 
April 2, 2021. If we take final action to approve the rule rescission, 
our final action will rescind these provisions from the federally 
enforceable SIP.

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III. Incorporation by Reference

    In this document, the EPA is proposing to amend regulatory text 
that includes incorporation by reference. The EPA is proposing to 
remove R18-2-715(F)(2) and (H) as described in Table 1 of this preamble 
from the Arizona State Implementation Plan, which is incorporated by 
reference in accordance with the requirements of 1 CFR part 51.

IV. Statutory and Executive Order Reviews

    Under the CAA, 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 proposed action merely proposes to approve state law as meeting 
federal requirements and does not impose additional requirements beyond 
those imposed by state law. For that reason, this proposed 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 disproportionate human health or environmental effects with 
practical, appropriate, 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).

List of Subjects in 40 CFR Part 52

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

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

    Dated: February 18, 2021.
Deborah Jordan,
Acting Regional Administrator, Region IX.
[FR Doc. 2021-03753 Filed 3-2-21; 8:45 am]
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