[Federal Register Volume 87, Number 149 (Thursday, August 4, 2022)]
[Rules and Regulations]
[Pages 47632-47634]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-16493]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2022-0609; FRL-10025-02-R9]


Determination To Defer Sanctions; Arizona; Maricopa County; 
Reasonably Available Control Technology--Combustion Sources

AGENCY: Environmental Protection Agency (EPA).

ACTION: Interim final determination.

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SUMMARY: The Environmental Protection Agency (EPA) is making an interim 
final determination that the Arizona Department of Environmental 
Quality (ADEQ) has submitted revised rules on behalf of the Maricopa 
County Air Quality Department (MCAQD or County) that correct 
deficiencies in its Clean Air Act (CAA or Act) state implementation 
plan (SIP) provisions concerning reasonably available control 
technology (RACT) ozone nonattainment requirements for controlling 
emissions of oxides of nitrogen (NOX) from combustion 
equipment and internal combustion engines. This determination is based 
on a proposed approval, published elsewhere in this Federal Register, 
of MCAQD's Rules 323 and 324 which regulate these source categories. 
The effect of this interim final determination is that the imposition 
of sanctions that were triggered by two prior disapprovals by the EPA, 
the first in 2020 for these two rules, and the second in 2021 for the 
County's 2017 determination that it was implementing RACT for major 
sources of NOX, are now deferred. If the EPA finalizes its 
approval of MCAQD's submission, relief from these sanctions will become 
permanent.

DATES: This rule is effective on August 4, 2022. However, comments will 
be accepted on or before September 6, 2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2022-0609 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

[[Page 47633]]

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 [email protected].

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

Table of Contents

I. Background
II. The EPA's Evaluation and Action
III. Statutory and Executive Order Reviews

I. Background

    On July 20, 2020 (85 FR 43692), the EPA issued a rule promulgating 
final disapproval and conditional approvals for the MCAQD regulations 
listed in Table 1 that had been submitted by the ADEQ to the EPA for 
inclusion into the Arizona SIP.

                                 Table 1--County Rules With Previous EPA Action
----------------------------------------------------------------------------------------------------------------
                                                                                                  EPA action in
      Rule No.             Rule title                Revised                   Submitted               2020
----------------------------------------------------------------------------------------------------------------
322................  Power Plant            November 2, 2016.........  June 22, 2017...........  Disapproval.
                      Operations.
323................  Fuel Burning           November 2, 2016.........  June 22, 2017...........  Conditional
                      Equipment from                                                              Approval.
                      Industrial/
                      Commercial/
                      Institutional (ICI)
                      Sources.
324................  Stationary             November 2, 2016.........  June 22, 2017...........  Conditional
                      Reciprocating                                                               Approval.
                      Internal Combustion
                      Engines (RICE).
----------------------------------------------------------------------------------------------------------------

    Areas classified as ``Moderate'' for nonattainment for an ozone 
standard must implement reasonably available control technology (RACT) 
for major sources of NOX and volatile organic compounds. The 
Phoenix-Mesa area is classified as ``Moderate'' nonattainment for the 
2008 ozone standard. The 2020 action on the regulations in Table 1 
supported our subsequent rulemaking on the requirement that the MCAQD 
demonstrate their implementation of RACT, in a submittal called a 
``RACT SIP,'' for emissions sources in ozone nonattainment areas under 
the Act, specifically for major sources of NOX.\1\ In the 
2020 final rule, we determined that the submitted County rules included 
several deficiencies that precluded our approval of the rules into the 
SIP, and thus the County failed to implement RACT for major sources of 
NOX. Therefore, our 2021 action on the RACT SIP included a 
disapproval of the SIP revision under title I, part D of the Act, 
relating to requirements for nonattainment areas. Pursuant to section 
179 of the CAA and our regulations at 40 CFR 52.31, this disapproval 
action on the RACT SIP element under title I, part D started a 
sanctions clock for imposition of offset sanctions 18 months after the 
action's effective date of February 8, 2021, and highway sanctions 6 
months later.
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    \1\ See, 86 FR 971 published on January 7, 2021.
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    On June 23, 2021, the MCAQD revised Rules 323 and 324 and on June 
24, 2021, ADEQ submitted the SIP revision to the EPA for approval into 
the Arizona SIP as described in Table 2 below.

                                            Table 2--Submitted Rules
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         Rule No.                Rule title                   Revised                        Submitted
----------------------------------------------------------------------------------------------------------------
323......................  Fuel Burning           June 23, 2021.................  June 30, 2021.
                            Equipment from
                            Industrial/
                            Commercial/
                            Institutional (ICI)
                            Sources.
324......................  Stationary             June 23, 2021.................  June 30, 2021.
                            Reciprocating
                            Internal Combustion
                            Engines (RICE).
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    The revised rules in Table 2 are intended to meet the commitments 
to revise the rules we had previously based our conditional approval on 
in our 2020 action. In the Proposed Rules section of this Federal 
Register, we have proposed approval of the revised MCAQD Rules 323 and 
324. Based on this proposed approval action (and our proposed action 
approving Rule 322 \2\ into the Arizona SIP that regulates other major 
sources of NOX at power plants, which are not addressed by 
Rules 323 or 324), we are also taking this interim final determination, 
effective on publication, to defer imposition of the offset sanctions 
and highway sanctions that were triggered by our 2021 action's 
disapproval of the major sources of NOX RACT element, 
because we believe that the submittal corrects the deficiencies that 
triggered such sanctions.
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    \2\ February 8, 2022 (87 FR 7042).
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    The EPA is providing the public with an opportunity to comment on 
this deferral of sanctions. If comments are submitted that change our 
assessment described in this interim final determination and the 
proposed full approval of MCAQD's submittal demonstrating RACT for 
major sources of NOX with respect to the title I, part D 
deficiencies identified in our 2021 action, we would take final action 
to lift this deferral of sanctions under 40 CFR 52.31. If no comments 
are submitted that change our assessment, then all sanctions and any 
sanction clocks triggered by our 2021 action would be permanently 
terminated on the effective date of our final approval of the major 
sources of NOX RACT element.

[[Page 47634]]

II. The EPA's Evaluation and Action

    We are making an interim final determination to defer CAA section 
179 sanctions associated with our disapproval action on January 7, 
2021, of MCAQD's RACT demonstration for major sources of NOX 
with respect to the requirements of part D of title I of the CAA. This 
determination is based on our previous proposed approval of Rule 322 
and this concurrent proposal to fully approve Rules 323 and 324, which 
resolves the remaining deficiencies that triggered sanctions under 
section 179 of the CAA.
    Because the EPA has preliminarily determined that MCAQD's submittal 
of Rules 322, 323 and 324 address the conditional approval issues and 
deficiencies under part D of title I of the CAA identified in our 2020 
and 2021 actions and is fully approvable, relief from sanctions should 
be provided as quickly as possible. Therefore, the EPA is invoking the 
good cause exception under the Administrative Procedure Act (APA) in 
not providing an opportunity for comment before this action takes 
effect (5 U.S.C. 553(b)(3)). However, by this action, the EPA is 
providing the public with a chance to comment on the EPA's 
determination after the effective date, and the EPA will consider any 
comments received in determining whether to reverse such action.
    The EPA believes that notice-and-comment rulemaking before the 
effective date of this action is impracticable and contrary to the 
public interest. The EPA has reviewed the State's submittal and, 
through its proposed action, is indicating that it is more likely than 
not that the State has submitted a revision to the SIP that corrects 
deficiencies under part D of the Act that were the basis for the action 
that started the sanctions clocks. Therefore, it is not in the public 
interest to impose sanctions. The EPA believes that it is necessary to 
use the interim final rulemaking process to defer sanctions while the 
EPA completes its rulemaking process on the approvability of the 
State's submittal. Moreover, with respect to the effective date of this 
action, the EPA is invoking the good cause exception to the 30-day 
notice requirement of the APA because the purpose of this notice is to 
relieve a restriction (5 U.S.C. 553(d)(1)).

III. Statutory and Executive Order Reviews

    This action defers sanctions and imposes no additional 
requirements. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide the EPA with the discretionary authority 
to address disproportionate human health or environmental effects with 
practical, appropriate, and legally permissible methods under Executive 
Order 12898 (59 FR 7629, February 16, 1994).
     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).
     Is subject to the Congressional Review Act (CRA), 5 U.S.C. 
801 et seq., and the EPA will submit a rule report to each House of the 
Congress and to the Comptroller General of the United States. The CRA 
allows the issuing agency to make a rule effective sooner than 
otherwise provided by the CRA if the agency makes a good cause finding 
that notice and comment rulemaking procedures are impracticable, 
unnecessary or contrary to the public interest (5 U.S.C. 808(2)). The 
EPA has made a good cause finding for this rule as discussed in section 
II of this preamble, including the basis for that finding.
    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 October 3, 2022. Filing a petition for 
reconsideration by the EPA Administrator of this final rule does not 
affect the finality of this rule for the purpose of judicial review nor 
does it extend the time within which 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 CAA 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.

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

    Dated: July 27, 2022.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2022-16493 Filed 8-3-22; 8:45 am]
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