[Federal Register Volume 87, Number 250 (Friday, December 30, 2022)]
[Rules and Regulations]
[Pages 80462-80468]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-28272]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2022-0107; FRL-9426-02-R9]


Air Plan Approval; Arizona; Maricopa County; Power Plants

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to approve a revision to the Maricopa County Air Quality 
Department's (MCAQD or County) portion of the Arizona State 
Implementation Plan (SIP). The revision addresses Arizona's reasonably 
available control technology (RACT) SIP obligations for the Phoenix-
Mesa ozone nonattainment area that is classified as Moderate 
nonattainment for the 2008 ozone national ambient air quality standards 
(NAAQS). We are approving a local rule that regulates emissions of 
oxides of nitrogen (NOX) and particulate matter (PM) from 
power plants under the Clean Air Act (CAA or the Act).

DATES: This rule is effective January 30, 2023.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R09-OAR-2022-0107. 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 [email protected].

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

Table of Contents

I. Proposed Action and Interim Final Determination
II. Public Comments and EPA Responses
III. EPA Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

I. Proposed Action and Interim Final Determination

    On February 8, 2022 (87 FR 7069), the EPA proposed to approve MCAQD 
Rule 322 ``Power Plant Operations,'' as amended on June 23, 2021, and 
submitted by the Arizona Department of Environmental Quality (ADEQ) to 
the EPA on June 30, 2021.\1\ The MCAQD regulates a portion of the 
Phoenix-Mesa ozone nonattainment area that is classified as Moderate 
for the 2008 8-hour ozone national ambient air quality standard (40 CFR 
81.303). Maricopa County's ``Analysis of Reasonably Available Control 
Technology For The 2008 8-Hour Ozone National Ambient Air Quality 
Standard (NAAQS) State Implementation Plan (RACT SIP),'' adopted 
December 5, 2016, submitted June 22, 2017 (the ``2016 RACT SIP''), 
found that there were major sources of NOX within the 
Maricopa County portion of the Phoenix-Mesa ozone nonattainment area 
subject to Rule 322. Accordingly, this rule must establish RACT levels 
of control for applicable major sources of NOX.
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    \1\ In our February 8, 2022 proposed rule, we inadvertently 
cited the submittal date for this submittal as June 24, 2021, which 
was the date that the letters from the County and State transmitting 
these materials were signed. The date that these materials were 
received in the EPA's SPeCS for SIPs system was June 30, 2021.
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    Rule 322 regulates emissions from electricity steam generating 
units, cogeneration steam units, and turbines. It also includes related 
recordkeeping, reporting, and monitoring requirements. The version of 
Rule 322 that we are acting on in this rule (i.e., the version adopted 
on June 23, 2021, and submitted to the EPA on June 30, 2021) corrects 
several deficiencies in a previous version of Rule 322 that was adopted 
by MCAQD on November 2, 2016, and submitted to the EPA on June 22, 
2017, and that resulted in the EPA's disapproval published in the 
Federal Register in February 2020.\2\ The EPA has determined that this 
revised version of Rule 322 corrects the deficiencies in the 2017 
submitted version related to flawed cost effectiveness analyses and the 
lack of enforceable operational restrictions in the rule itself and, 
further, that it meets the EPA's criteria for RACT for this source 
category.
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    \2\ See EPA Region IX, ``Technical Support Document for Maricopa 
County Air Quality Department Rule 322, Power Plant Operations,'' 
January 2022; 87 FR 7070 (February 8, 2020).
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    We proposed to approve Rule 322 because we determined that it 
complies with the relevant CAA requirements in CAA sections 110, 
182(b)(2), 182(f), and 193. Our proposed action contains more 
information on Rule 322 and our evaluation of the SIP revision. On the 
same day, we also made an interim final determination (87 FR 7042) that 
the submittal from the ADEQ corrected SIP deficiencies from a previous 
submittal, allowing us to defer the imposition of sanctions resulting 
from our disapproval of a previously submitted version of Rule 322 (85 
FR 43692, July 20, 2020).

II. Public Comments and EPA Responses

    The EPA's proposed action provided a 30-day public comment period. 
During this period, we received five comments. Four of these comments 
were from members of the public and were generally supportive of our 
proposed action or were not germane. The fifth comment was submitted by 
Air Law for All, Ltd. on behalf of the Center for Biological Diversity 
and the Sierra Club (the commenter from here on referred to as ``ALFA'' 
or ``the commenter'').

Low Use Exemptions and RACT

    ALFA asserts that Rule 322's annual operational limits cannot be 
used to exempt units from RACT for short-term ozone standards, that 
Rule 322's limits on operation are used to ``artificially inflate the 
annualized cost-effectiveness of NOX controls to justify not 
installing RACT-level technology,'' and that Rule 322 uses a long-term 
annual average to circumvent the installation of overall RACT level 
controls.
    We do not agree with the commenter's assertions. As discussed 
further below,

[[Page 80463]]

and contrary to the statements in the comment letter, Rule 322 
satisfies RACT requirements for NOX emissions from power 
plants in two ways. First, it includes RACT-level NOX 
emission limits in section 306 that apply to electric utility steam 
generating turbines rated greater than 100 MMBtu/hr and electric 
utility stationary gas turbines rated greater than 10 MMBtu/hr.\3\ 
Second, Rule 322 provides an exemption from the RACT-level 
NOX emission limit only for emissions units that meet 
certain criteria that are set forth in section 104.4. In particular, 
for units that operate at or below 10 percent annual capacity factor, 
Rule 322 allows an exemption from NOX RACT limits only if 
the facility demonstrates through an analysis that RACT-level controls 
are not economically or technologically feasible. Rule 322's provisions 
for low use equipment are an important component of EPA's determination 
that Rule 322 satisfies the RACT obligation under the CAA for this 
source category.\4\ We note that the EPA has approved rules that exempt 
certain units from RACT requirements based on low use in other SIPs.\5\
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    \3\ We note that the limits in the submitted rule are more 
stringent than the NOX emission limits that are currently 
in the SIP. (The current SIP-approved rule was adopted by MCAQD in 
2007 and approved by the EPA in 2009. 74 FR 52693 (October 14, 
2009).) For example, the current SIP-approved version of Rule 322 
does not contain any NOX limit for electric utility 
stationary gas turbines, whereas the submitted version of Rule 322 
establishes a NOX limit of 42 ppm for these units, if 
they are fired by gaseous fossil fuel, and 65 ppm if they are fired 
by liquid fossil fuel. This notice provides additional discussion 
comparing the submitted and currently SIP-approved versions of Rule 
322 below.
    \4\ In the 1992 General Preamble for the Implementation of Title 
I of the Clean Air Act Amendments of 1990, EPA stated that ``it is 
possible that a state could demonstrate that an existing source in 
an area should not be subject to a control technology especially 
where such control is unreasonable in light of the area's attainment 
needs or infeasible.'' 57 FR 13498, 13541, note 20 (April 16, 1992). 
Appendix C4 to the General Preamble for the Implementation of Title 
I of the CAA Amendments of 1990 (titled ``RACT Determinations for 
Stationary Sources'') further elaborates on this point, clarifying 
that ``States may give substantial weight to cost effectiveness in 
evaluating the economic feasibility of an emission reduction 
technology.'' 82 FR 18070, 18074 (Apr. 28, 1992). Appendix C4 refers 
to the General Preamble discussion on particulate matter, but its 
discussion on economic feasibility also applies to considerations 
for NOX RACT emissions controls. That is what the State 
has done in this instance; when the facilities operate at or below 
10 percent annual capacity factor, there is no requirement to 
install RACT because it is not cost effective.
    \5\ See, for example: Colorado's 5 CCR 1001-9, Regulation 7, 
part E, section II.A.2.a, approved at 86 FR 11125 (February 24, 
2021); Massachusetts 310 CMR 7.19, section (1)(d), approved at 85 FR 
65236 (October 15, 2020); Ventura County Air Pollution Control 
District Rule 74.15.1 section C.2 as low a heat input exemption 
approved at 81 FR 50348 (August 1, 2016); Wisconsin's NR 428.21, 
section (1)(d) paragraph 2 and section (2)(d) paragraph 2, approved 
at 75 FR 64155 (October 19, 2010); Sacramento Metropolitan Air 
Quality Management District Rule 411, section 113, approved at 74 FR 
20880 (May 6, 2009).
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    Section 104.4 of Rule 322 now allows for equipment that operates at 
or below 10 percent of the unit's calendar year annual capacity factor 
\6\ to be exempt from NOX and CO emissions limitations in 
sections 306 and 307 if the equipment meets the criteria specified in 
section 104.4(a), (b) and (c).\7\ To qualify for the exemption from the 
NOX and CO emissions limits in sections 306 and 307, section 
104.4(a) requires an owner or operator to submit an analysis to the 
MCAQD Control Officer and EPA Administrator demonstrating that 
conventional commercially available control technology is not 
technically or economically feasible. In addition, section 104.4(b) 
requires an owner or operator to submit, within 60 days of MCAQD 
approval, an application to modify the equipment's permit to include an 
annual heat input limit (i.e., a limit on the amount of fuel that can 
be used in the unit annually), and section 104.4(c) specifies that 
owners and operators must demonstrate compliance with the heat input 
limit by multiplying the higher heating value (expressed in terms of 
either MMBtu/mass or MMBtu/volume by fuel use (mass or volume)).
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    \6\ The U.S. Energy Information Administration defines 
``capacity factor'' as: ``The ratio of the electrical energy 
produced by a generating unit for the period of time considered to 
the electrical energy that could have been produced at continuous 
full power operation during the same period.'' Available: https://www.eia.gov/tools/glossary/index.php.
    \7\ Equipment that operates at less than 10 percent of its 
annual capacity is also subject to provisions in Rule 322 that 
require compliance with good combustion practices, particulate 
limits, and requirements for recordkeeping and reporting. See e.g., 
Rule 322, sections 301, 302, 303, 304 and 500. A more complete 
description of these provisions is included later in this notice.
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    Appendix 12 to Maricopa County's 2021 submittal includes a set of 
three analyses of technical feasibility and cost effectiveness (i.e., 
economic feasibility) for thirteen emissions units at four different 
facilities owned by Arizona Public Service (APS) and Salt River Project 
(SRP).\8\ APS and SRP seek to comply with Rule 322 by operating these 
units subject to the 10 percent annual capacity factor limit in section 
104.4.\9\ The analyses present available NOX control 
technologies, including water injection, steam injection, low 
NOX burners, dry low NOX combustion, selective 
non-catalytic reduction (SNCR) and selective catalytic reduction 
(SCR).\10\ The analyses next determine which available technologies are 
technically feasible for the various emissions units. The analyses then 
assess the cost effectiveness of the technically feasible options by 
considering the capital and annual costs compared to the NOX 
reductions that would be expected to result from the controls. For this 
last step, each analysis assumed that the emissions unit would operate 
at 10 percent of its rated capacity.
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    \8\ 2021 Submittal, Appendix 12.
    \9\ Besides the thirteen emissions units that seek to comply 
with Rule 322 by operating subject to the 10 percent annual capacity 
factor limit in section 104.4, there are 40 units that must comply 
with the emissions limits in sections 306 and 307. Of the nine 
facilities subject to Rule 322, four operate units seeking the low 
use exemption from sections 306 and 307 of the rule.
    \10\ The range of NOX control technologies evaluated 
varied according to the specifics of the emissions units. For more 
detailed information, see our 2022 TSD, 9-11; 2021 Submittal at 64-
189.
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    It is important to note that the analyses state, for each emissions 
unit analyzed, actual operation of each unit was far below ten percent 
of capacity. For example, Table 3-2 of the analysis for APS Ocotillo 
and West Phoenix power plants presents the capacity factor for each of 
the four units analyzed in the document in the years 2015, 2016 and 
2017, the most recent three years at the time the analysis was 
developed; of the twelve data points, only two units were operated 
above 1 percent annual capacity, and eight were below 0.5 percent 
annual capacity.\11\ Similarly, the analysis for SRP Agua Fria 
generating station's units 1-3 states that the units ``have a very low 
utilization, with a typical capacity factor of approximately 5 
percent,'' \12\ and the analysis for SRP Agua Fria units 4-6 states 
that the annual capacity factor is less than 1 percent.\13\ Moreover, 
the analysis for SRP Kyrene units 4-6 states that the units have ``very 
low utilization, with a typical capacity factor less than 0.1 
percent.'' \14\
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    \11\ 2021 Submittal at 71 (``Reasonably Available Control 
Technology (RACT) Analysis for the control of nitrogen oxides 
(NOX) emission from the Arizona Public Service Ocotillo 
and West Phoenix Power Plants'' (October 2018) at 8).
    \12\ 2021 Submittal at 106 (``Reasonably Available Control 
Technology (RACT) Analysis for the control of nitrogen oxides 
(NOX) emissions from the Salt River Project Agua Fria 
Generating Station'' (July 2020) at 14).
    \13\ 2021 Submittal at 167 (``Reasonably Available Control 
Technology (RACT) Analysis for the control of nitrogen oxides 
(NOX) emissions from simple-cycle combustion turbine 
generators at the Salt River Project Agua Fria and Kyrene Generating 
Stations'' (July 2020) at 15).
    \14\ 2021 Submittal at 176, 182; (``Reasonably Available Control 
Technology (RACT) Analysis for the control of nitrogen oxides 
(NOX) emissions from simple-cycle combustion turbine 
generators at the Salt River Project Agua Fria and Kyrene Generating 
Stations'' (July 2020) at 24, 30.)
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    The fact that actual usage of the emissions units that will be 
regulated

[[Page 80464]]

pursuant to the low use exemption has historically been well below the 
10 percent capacity factor imposed by the exemption contradicts the 
commenter's point that ``the limits on operation are used to 
artificially inflate the annualized cost-effectiveness of 
NOX controls to justify not installing RACT-level 
technology.'' Arguably, because the cost effectiveness analyses 
conservatively assumed higher levels of operation than actually occur, 
the analyses overestimated NOX emissions and therefore 
overestimated NOX reductions that would result from use of 
NOX control equipment. Because cost effectiveness is 
expressed as dollars (capital and operational costs of controls) per 
ton of emissions (emissions reductions resulting from the controls), an 
overestimation of emissions reductions would effectively make controls 
appear more cost effective, not less.
    The commenter also points to a 1984 guidance document \15\ to 
assert that ``the averaging time for ozone plan emission limitations 
should match the standards, that is, should be short term.'' We note, 
however, that section 104.4's 10 percent heat input limit differs from 
the emission limits addressed in the 1984 guidance in that it is also a 
criterion that must be met to qualify for and maintain an exemption 
from Rule 322's NOX and CO limits. Further, to qualify for 
the exemption, section 104.4 also requires sources to submit, for 
Control Officer and EPA approval, a RACT analysis that demonstrates 
that ``conventional commercially-available control technology is not 
technologically and/or economically feasible.'' EPA has long considered 
what is technologically and economically feasible in determining RACT 
controls.\16\ And, as explained above, the analyses in Appendix 12 of 
the 2021 submittal package demonstrate that the installation of RACT 
control technologies for units operating at 10 percent of their annual 
capacity factors exceeds established cost effectiveness values.
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    \15\ See ``Averaging Times for Compliance with VOC Emission 
Limits--SIP Revision Policy,'' (also referred to as the ``O'Connor 
Memorandum''). 51 FR 43857 (December 4, 1986). It is conceivable 
that this guidance pertains to limits on direct emissions of air 
pollutants only, not operational standards. We note that the 1990 
Clean Air Act Amendments added the phrase ``work practice or 
operational standard'' to the definition of the terms ``emission 
limit'' and ``emission standard'' at CAA section 302(k).
    \16\ Since the 1970s, EPA has consistently defined ``RACT'' as 
the lowest emission limit that a particular source is capable of 
meeting by the application of the control technology that is 
reasonably available considering technological and economic 
feasibility. See December 9, 1976 memorandum from Roger Strelow, 
Assistant Administrator for Air and Waste Management, to Regional 
Administrators, ``Guidance for Determining Acceptability of SIP 
Regulations in Non-Attainment Areas.'' 44 FR 53762 (September 17, 
1979).
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    Contrary to the commenter's assertion, section 104.4's annual 
capacity limit does not allow sources to ``circumvent the installation 
of RACT level controls.'' Rather, as evidenced by the analyses in 
Appendix 12 of the 2021 submittal package, sources regulated by Rule 
322 appear to understand section 104.4 to require not only a standard 
approach to evaluating the cost effectiveness of pollution controls, 
but also application of this approach to all emissions units, even 
those that are used at one percent (or even lower) of their rated 
capacity.\17\
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    \17\ We note further that Rule 322 does not allow 
``circumvention'' of RACT by units that do not seek to qualify as 
exempt pursuant to section 104.4. Rule 322 applies to electric 
utility steam generating units and cogeneration steam generating 
units with rated heat input capacity greater than or equal to 100 
million Btu/hour. Rule 322 clearly requires any unit that does not 
submit to section 104.4's limit on heat input to comply with the 
NOX and CO limits in sections 306 and 307, which EPA has 
determined to be RACT.
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    It is also important to note that units regulated by the low use 
provisions in section 104.4 must comply with requirements in section 
500, ``Monitoring and Records,'' including section 501.1 that requires 
owners and operators to maintain records of days and hours of operation 
and monthly fuel usage that will ensure that regulators, members of the 
public, and facility owners and operators can determine compliance with 
section 104.4's fuel input cap. In addition, the units regulated by the 
low use provisions in section 104.4 must still comply with other 
provisions in Rule 322, such as particulate matter emissions 
limitations (section 301), good combustion practice obligations for 
turbines (section 302), opacity limits (section 304), and fuel sulfur 
limits (section 305).
    We acknowledge the commenter's point that the equipment for which 
power generators are seeking an exemption from NOX and CO 
limits pursuant to section 104.4 are likely operated as peaking units 
and are therefore expected to operate primarily during hot summer days 
when ozone formation is typically high. The Clean Air Act provides 
states with primary responsibility for developing pollution control 
strategies discretion to attain the NAAQS. The states also have ``broad 
authority to determine the methods and particular control strategies 
they will use to achieve the statutory requirements.'' \18\ Because we 
find that Rule 322 is consistent with federal standards for RACT, we 
believe it is appropriate for the State to use its discretion to allow 
these units to operate, even during high ozone periods, as long as the 
State can demonstrate attainment with applicable ozone NAAQS. The EPA 
has approved the State's attainment demonstration and the associated 
reasonably available control measures (RACM) demonstration for the 
Phoenix 2008 ozone nonattainment area,\19\ and has determined that this 
area attained the 2008 ozone NAAQS by the applicable attainment 
date.\20\ The U.S. Court of Appeals for the Ninth Circuit has upheld 
both of these actions.\21\ With respect to the 2015 ozone NAAQS, which 
is more stringent than the 2008 ozone NAAQS, the EPA has recently 
determined that the Phoenix-Mesa nonattainment area failed to attain 
the standard by the attainment date for areas classified as Marginal 
and therefore it has been reclassified to the next highest 
classification, Moderate.\22\ This ``bump up'' action means that the 
State of Arizona and MCAQD are subject to CAA section 182(b)(2)'s 
requirement to demonstrate RACT and to section 182(b)(1)'s requirement 
to submit a plan demonstrating reasonable further progress towards 
attainment for the 2015 ozone NAAQS and providing for attainment by the 
Moderate area attainment date.
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    \18\ BCCA Appeal Grp. v. EPA, 355 F.3d 817, 822 (5th Cir. 2003) 
(as amended on denial of rehearing and rehearing en banc Jan. 8, 
2004) (citing Union Elec. Co. v. EPA, 427 U.S. 246, 266 (1976) (``So 
long as the national standards are met, the state may select 
whatever mix of control devices it desires.'')
    \19\ 85 FR 33571 (June 2, 2020).
    \20\ 84 FR 60920 (November 12, 2019).
    \21\ Bahr v. Regan, 6 F.4th 1059 (9th Cir. 2021) Matusow v. 
Wheeler, Case No. 20-72279 (9th Cir. Apr. 21, 2022).
    \22\ 87 FR 60897 (October 7, 2022).
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Discretionary Authority in SIP Actions

    ALFA asserts that the EPA's statement that we do not have the 
``discretionary authority to address disproportionate human health or 
environmental effects with practical, appropriate and legally 
permissible methods under Executive Order 12898'' is incorrect, and 
that the EPA has the discretion to interpret the requirements of the 
Act with regard to SIP submissions, demonstrated by our application of 
Agency guidance in interpreting requirements for averaging times in 
emission limitations. The commenter further asserts that the EPA does 
in fact have the discretionary authority to address impacts to 
environmental justice communities in this context.
    While the EPA may in certain circumstances have discretion to

[[Page 80465]]

consider environmental justice in implementing the requirements of the 
Act, E.O. 12898 does not provide any independent authority for action. 
For the reasons described in our proposal, our Technical Support 
Document (TSD), and this notice, we have determined that the submittal 
satisfies the obligation to implement RACT under sections 110 and 182 
of the Act. Under the CAA, the EPA is required to approve a SIP 
submission that meets the minimum requirements of the CAA and 
applicable federal regulations. Moreover, we note that while we are 
approving Rule 322 as meeting RACT under the requirements of the 2008 
ozone NAAQS, we are not making any determinations as to whether this 
submittal meets requirements applicable to the Phoenix-Mesa 
nonattainment area for the 2015 ozone NAAQS.
    Although Executive Order 12898 does not provide us with an 
independent basis to disapprove the County's SIP submission, we 
conducted an environmental justice analysis to provide additional 
context and information about this rulemaking to the public. To 
identify environmental burdens and susceptible populations in 
underserved communities in the areas surrounding units operating under 
the low use exemption in Rule 322, we performed a screening analysis 
using the EPA's environmental justice screening and mapping tool 
(``EJSCREEN'') and the Power Plants and Neighboring Communities mapping 
tool (``PPNC'') that includes EJSCREEN data in addition to facility 
emissions data collected by the EPA.23 24 We used these 
tools to assess the areas within a three-mile radius of the four 
facilities operating under the low use provisions of Rule 322. We 
selected a three-mile buffer because these facilities on their own have 
fairly large geographic footprints, and a three-mile radius was 
appropriate to capture potentially impacted communities that may be 
located nearby. We focused our analysis of the area on the two 
demographic indicators explicitly named in Executive Order 12898, the 
area's percentage of people of color and the percentage of low-income 
population.\25\ Based on our screening analysis, we found that two of 
the four areas had higher percentages for the People of Color indicator 
living in the buffer zone than the state average of 45 percent (the 
area around the Agua Fria Generating Station reported 60 percent and 
the area around the West Phoenix Power Plant reported 91 percent), and 
three of the four areas had higher percentages for the Low Income 
indicator than the state average of 35 percent (Agua Fria Generating 
Station reported 44 percent, Ocotillo Power Plant reported 49 percent, 
and West Phoenix Power Plant reported 77 percent). Selected metrics 
from that analysis are presented below in Table 1.
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    \23\ U.S. Environmental Protection Agency. ``EJScreen (Version 
2.0), 2022.'' Environmental Justice index and Socioeconomic 
Indicator tables, and EJSCREEN American Community Survey (ACS) 
Summary reports 2015-2019 data. Retrieved August 12, 2022 from 
https://www.epa.gov/ejscreen.
    \24\ U.S. Environmental Protection Agency. 2022. ``Power Plants 
and Neighboring Communities (PPNC), 2020'' Washington, DC: Office of 
Atmospheric Programs, Clean Air Markets Division. Available from 
EPA's PPNC website: https://www.epa.gov/airmarkets/power-plants-and-neighboring-communities. The reports generated for this analysis are 
available in the rulemaking docket.
    \25\ Executive Order 12898 focuses explicitly on these two 
demographic indicators, which it refers to as ``minority 
populations'' and ``low-income populations.'' EJSCREEN reports 
environmental indicators (e.g., air toxics cancer risk, lead paint 
exposure, and traffic proximity and volume) and demographic 
indicators (e.g., people of color, low income, and linguistically 
isolated populations). Depending on the indicator, a community that 
scores highly for an indicator may have a higher percentage of its 
population within a demographic group or a higher average exposure 
or proximity to an environmental health hazard compared to the 
state, region, or national average. EJSCREEN also reports EJ 
indexes, which are combinations of a single environmental indicator 
with the EJSCREEN Demographic Index. For additional information 
about environmental and demographic indicators and EJ indexes 
reported by EJSCREEN, see EPA, ``EJSCREEN Environmental Justice 
Mapping and Screening Tool--EJSCREEN Technical Documentation,'' 
section 2, September 2019.
    \26\ Estimates from EJSCREEN, 2015-2019 American Community 
Survey, U.S. Census.

                         Table 1--Selected Environmental Justice Demographic Indicators
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                                                     Agua Fria        Kyrene
                                                    generating      generating       Ocotillo      West Phoenix
                                                      station         station       power plant     power plant
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Estimated population in 3-mile buffer zone \26\.         154,817         130,571         145,867         107,697
People of Color (AZ average 45%)................             60%             43%             46%             91%
Low Income (AZ average 35%).....................             44%             26%             49%             77%
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    As discussed in the EPA's ``Technical Guidance for Assessing 
Environmental Justice in Regulatory Analysis,'' people of color and 
low-income populations often experience greater exposure and disease 
burdens than the general population, which can increase their 
susceptibility to adverse health effects from environmental 
stressors.\27\ Underserved communities can also experience reduced 
access to health care, nutritional, and fitness resources, further 
increasing their susceptibility. We also note that the Phoenix-Mesa 
area is currently designated as non-attainment for the 2008 and 2015 
ozone standards.\28\ Areas in nonattainment typically face other air 
pollution and environmental health challenges, which may especially 
impact these underserved communities. Such impacts are seen in the 
EJSCREEN data for these areas, including indexes for fine particulate 
matter exposure, diesel particulate matter, air toxics risks, 
underground storage tank, Superfund site and hazardous waste facility 
proximity, all being higher than the State's average. Because the APS 
West Phoenix Power Plant and the SRP Agua Fria Generating Station are 
both located near communities, which the EJSCREEN data shows is higher 
than the state's average for EJ demographic indicators that may 
indicate the presence of underserved communities, it is possible that 
these facilities contribute to disproportionate pollution impacts.
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    \27\ U.S. EPA, ``Technical Guidance for Assessing Environmental 
Justice in Regulatory Analysis,'' section 4, June 2016.
    \28\ The EPA determined that the Phoenix-Mesa attained the 2008 
ozone NAAQS by the Moderate area attainment date of July 20, 2018. 
84 FR 60920 (November 12, 2019). This determination is not a 
redesignation to attainment and therefore it does not relieve the 
State from its obligations to implement RACT for this standard.
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    Even though some of the facilities that are operating units under 
Rule 322's partial exemption for low use units are located in or near 
underserved communities, approval of this rule into the SIP strengthens 
the Arizona SIP by incorporating more stringent requirements for power 
plants operating in Maricopa County into the SIP, making them 
enforceable by the EPA and the public. For example, the version of Rule 
322 we are approving into the SIP contains more stringent 
NOX limits for more emissions units compared to the version 
of Rule 322 currently in the SIP, which EPA approved in 2009. The

[[Page 80466]]

2007 version of Rule 322 does not impose NOX limits for 
stationary gas turbines at all, whereas the submitted version of Rule 
322 limits NOX emissions to 42 ppm and 65 ppm when burning 
gaseous and liquid fossil fuels, respectively.\29\ Moreover, the 2007 
version of Rule 322 only limits NOX for steam generating 
units for which construction commenced between May 30, 1972, and May 
10, 1996; as a result, the 2007 version of Rule 322 does not regulate 
at least some of the units covered by the low use exemption in the 2021 
version of Rule 322.\30\ The 2021 version of the rule now requires all 
units, regardless of construction date or type, to comply with the RACT 
limits or demonstrate compliance with the low use provisions by 
limiting annual operations. Also, the units operating under the 
submitted version of Rule 322's partial exemption for low use units 
must still comply with the updated operating requirements controlling 
sulfur, particulate matter, and opacity, even if they are exempt from 
the RACT NOX and CO limits. Therefore, we expect that this 
action and the codification of Rule 322's more stringent requirements 
into the federally enforceable SIP will contribute to reduced 
environmental and health impacts on all populations in Maricopa County, 
including people of color and low-income populations in Maricopa 
County. For these reasons, this action is not expected to have a 
disproportionately high or adverse human health or environmental effect 
on a particular group of people.
---------------------------------------------------------------------------

    \29\ The submitted rule also expands the applicability of CO 
limits to each electric utility or cogeneration steam generating 
unit with a rated heat input capacity greater than or equal to 100 
MMBtu per hour, and to each electric utility stationary gas turbine 
with a rated heat input capacity at peak load greater than or equal 
to 10 MMBtu per hour. The 2007 version of Rule 322 limited CO 
emissions to the same equipment, but only if construction commenced 
prior to May 10, 1996.
    \30\ Per the RACT analyses submitted with the 2021 version of 
Rule 322, the APS Ocotillo and West Phoenix low use units were 
constructed at some point in 1972 and at least three of the SRP Agua 
Fria low use units were constructed well before 1972.
---------------------------------------------------------------------------

    The EPA remains committed to working with the State of Arizona and 
Maricopa County to ensure that the ozone attainment requirements for 
this area satisfy applicable CAA requirements and thereby protect all 
populations in the area, including minority, low income, and indigenous 
populations, from disproportionately high or adverse air pollution 
impacts.

III. EPA Action

    No comments were submitted that change our assessment of the rule 
as described in our proposed action. Therefore, as authorized in 
section 110(k)(3) of the Act, the EPA is fully approving Rule 322 into 
the Arizona SIP and, pursuant to the requirements in section 104.4 of 
Rule 322, also approving the RACT cost effectiveness demonstrations in 
Appendix 12 of the State's submittal for the facilities seeking to 
operate under the low use partial exemption. The June 23, 2021 version 
of Rule 322 will replace the October 17, 2007 version of this rule in 
the SIP. As a result of this action, the sanctions that were deferred 
in our interim final determination are now rescinded, and a federal 
implementation plan to resolve the deficiency is no longer required 
under section 110(c) of the Act. We will also delete our previous 
disapproval codified at 40 CFR 52.133 (Rules and regulations) since a 
subsequent version of Rule 322 is being approved.
    Relatedly, we are also making a correction in 40 CFR 52.124. In our 
final rule of August 23, 2021 (86 FR 46986), approving revisions to the 
Pinal County Air Quality District's RACT demonstrations for the 2008 8-
hour ozone NAAQS, we should have deleted only the codified language 
noting our previous disapproval of portions of Pinal County's 
demonstration. However, we instead inadvertently deleted all the 
codified disapprovals for RACT demonstrations in Arizona. This action 
will correct that error and revise 40 CFR 52.124 to recodify the 
disapprovals for Maricopa County's RACT demonstration. This is relevant 
to our action here because the previous disapproval for Rule 322 was a 
contributing factor to our overall disapproval on Maricopa County's 
demonstration for implementing RACT at major sources of NOX. 
This language should remain in 40 CFR 52.124 until a future action 
addresses the remaining deficiencies that prevent us from fully 
approving Maricopa County's demonstration of this requirement.
    The EPA has determined that this correction falls under the ``good 
cause'' exemption in section 553(b)(3)(B) of the Administrative 
Procedure Act (APA) which, upon finding ``good cause,'' authorizes 
agencies to dispense with public participation where public notice and 
comment procedures are impracticable, unnecessary, or contrary to the 
public interest. Public notice and comment for this action is 
unnecessary because the underlying rule for which this correcting 
amendment has been prepared was already subject to a 30-day comment 
period, and this action merely adds amendatory instructions that 
reverts the errors made in the underlying rule. Further, this action is 
consistent with the purpose and rationale of the final rule, which is 
corrected herein. Because this action does not change the EPA's 
analyses or overall actions, no purpose would be served by additional 
public notice and comment. Consequently, additional public notice and 
comment are unnecessary.

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 Maricopa 
County Rule 322 as described in Section I of this preamble and as set 
forth below in the amendments to 40 CFR part 52. 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 the EPA's approval, and will 
be incorporated by reference in the next update to the SIP 
compilation.\31\ 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).
---------------------------------------------------------------------------

    \31\ 62 FR 27968 (May 22, 1997).
---------------------------------------------------------------------------

V. 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 minimum criteria of the Act. Accordingly, 
this action approves a County rule 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

[[Page 80467]]

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); and
     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.
    The state did not evaluate environmental justice considerations as 
part of its SIP submittal. The EPA performed an environmental justice 
analysis for the purpose of providing additional context and 
information about this rulemaking to the public, not as a basis of the 
final action. Due to the nature of the action being taken here, this 
action is expected to have a neutral to positive impact on the air 
quality of the affected area. Thus, there is no information in the 
record inconsistent with the stated goals of Executive Order 12898 (59 
FR 7629, February 16, 1994) of achieving environmental justice for 
people of color, low-income populations, and indigenous peoples.
    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 February 28, 2023. 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 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, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
oxides, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides.

    Dated: December 21, 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, in paragraph (c), amend Table 4 by revising the 
entry for ``Rule 322,'' and in paragraph (e), amend Table 1 by adding 
an entry for ``Revision of Rule 322 of the Maricopa County Air 
Pollution Control Regulations, Appendix 12: RACT Analyses Submitted to 
the Maricopa County Air Quality Department from the Arizona Public 
Service and the Salt River Project, only'' after the entry for 
``Reasonably Available Control Technology (RACT) Analysis, Negative 
Declaration and Rules Adoption'' to read as follows:


Sec.  52.120  Identification of plan.

* * * * *
    (c) * * *

            Table 4 to Paragraph (c)--EPA-Approved Maricopa County Air Pollution Control Regulations
----------------------------------------------------------------------------------------------------------------
                                                   State effective                               Additional
        County citation           Title/subject         date          EPA approval date         explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Rule 322......................  Power Plant       June 23, 2021...  [INSERT Federal        Submitted on June 30,
                                 Operations.                         Register CITATION],    2021 under an
                                                                     December 30, 2022.     attached letter
                                                                                            dated June 24, 2021.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
    (e) * * *

[[Page 80468]]



                       Table 1--EPA-Approved Non-Regulatory and Quasi-Regulatory Measures
----------------------------------------------------------------------------------------------------------------
                                Applicable geographic
     Name of SIP provision      or nonattainment area  State  submittal    EPA approval         Explanation
                                   or title/subject           date             date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Revision of Rule 322 of the     Maricopa County        June 30, 2021...  [INSERT Federal   Submitted on June 30,
 Maricopa County Air Pollution   portion of Phoenix-                      Register          2021 under a letter
 Control Regulations, Appendix   Mesa nonattainment                       CITATION],        dated June 24, 2021,
 12: RACT Analyses Submitted     area for 2008 8-hour                     December 30,      as a part of the SIP
 to the Maricopa County Air      ozone NAAQS.                             2022..            revision for
 Quality Department from the     Demonstrations for                                         Maricopa County Rule
 Arizona Public Service and      Equipment Under Rule                                       322. Required
 the Salt River Project, only.   322, section 104.4,                                        demonstrations from
                                 paragraph b.                                               facilities that
                                                                                            operate equipment
                                                                                            seeking partial
                                                                                            exemption from the
                                                                                            rule through
                                                                                            compliance with
                                                                                            annual heat input
                                                                                            limits.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *

0
3. Amend Sec.  52.124 by adding paragraph (b) to read as follows.


Sec.  52.124  Part D disapproval.

* * * * *
    (b) The following Reasonably Available Control Technology (RACT) 
determinations are disapproved because they do not meet the 
requirements of Part D of the Clean Air Act.
    (1) [Reserved]
    (2) Maricopa County Air Quality Department. (i) RACT determinations 
for major sources of NOX, and CTG source categories for 
Aerospace Coating and Industrial Adhesives (``National Emission 
Standards for Hazardous Air Pollutants for Source Categories: Aerospace 
Manufacturing and Rework'' (59 FR 29216), ``Control of Volatile Organic 
Compound Emissions from Coating Operations at Aerospace Manufacturing 
and Rework Operations'' (EPA-453/R-97-004), and ``Control Techniques 
Guidelines for Miscellaneous Industrial Adhesives'' (EPA-453/R-08-
005)), in the submittal titled ``Analysis of Reasonably Available 
Control Technology for the 2008 8-Hour Ozone National Ambient Air 
Quality Standard (NAAQS) State Implementation Plan (RACT SIP),'' dated 
December 5, 2016, as adopted on May 24, 2017 and submitted on June 22, 
2017.
    (ii) [Reserved]
* * * * *


Sec.  52.133  [Amended]

0
4. Amend Sec.  52.133 by removing and reserving paragraph (h).

[FR Doc. 2022-28272 Filed 12-29-22; 8:45 am]
BILLING CODE 6560-50-P


