[Federal Register Volume 85, Number 100 (Friday, May 22, 2020)]
[Proposed Rules]
[Pages 31113-31116]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-10587]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2020-0173; FRL-10009-01-Region 9]
Limited Approval, Limited Disapproval of Arizona Air Plan
Revisions, Hayden Area; Sulfur Dioxide Control Measures--Copper
Smelters
AGENCY: Environmental Protection Agency (EPA).
[[Page 31114]]
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing a
limited approval and limited disapproval of revisions to the Arizona
State Implementation Plan (SIP). This revision concerns sulfur dioxide
(SO2) emissions from the primary copper smelter in Hayden,
Arizona. We are proposing action on a local rule submitted by the
Arizona Department of Environmental Quality (ADEQ) that regulates these
emissions under the Clean Air Act (CAA or the Act). We are taking
comments on this proposal and plan to follow with a final action.
DATES: Comments must be received on or before June 22, 2020.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2020-0173 at http://www.regulations.gov. For comments submitted at
Regulations.gov, follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
Regulations.gov. The EPA may publish any comment received to its public
docket. Do not submit electronically any information you consider to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Multimedia submissions (audio,
video, etc.) must be accompanied by a written comment. The written
comment is considered the official comment and should include
discussion of all points you wish to make. The EPA will generally not
consider comments or comment contents located outside of the primary
submission (i.e. on the web, cloud, or other file sharing system). For
additional submission methods, please contact the person identified in
the FOR FURTHER INFORMATION CONTACT section. For the full EPA public
comment policy, information about CBI or multimedia submissions, and
general guidance on making effective comments, please visit http://www.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Kevin Gong, EPA Region IX, 75
Hawthorne St., San Francisco, CA 94105. By phone: (415) 972-3073 or by
email at [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to the EPA.
Table of Contents
I. The State's Submittal
A. What rule did the State submit?
B. Are there other versions of this rule?
C. What is the purpose of the submitted rule?
II. The EPA's Evaluation and Action
A. How is the EPA evaluating the rule?
B. Does the rule meet the evaluation criteria?
C. What are the rule deficiencies?
D. EPA Recommendations To Further Improve the Rule
E. Proposed Action and Public Comment
III. Incorporation by Reference
IV. Statutory and Executive Order Reviews
I. The State's Submittal
A. What rule did the State submit?
Table 1 lists the rule addressed by this proposal with the dates
that it was adopted and submitted by the ADEQ.
Table 1--Submitted Rule
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Rule # Rule title Effective date Submitted
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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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On July 17, 2017, the EPA determined that the submittal for the
rules and documents in Table 1 met the completeness criteria in 40 CFR
part 51 Appendix V, which must be met before formal EPA review.\1\
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\1\ Letter dated July 17, 2017 from Elizabeth Adams, Director,
Air Division, EPA, Region IX to Timothy S. Franquist, Director, Air
Quality Division, ADEQ.
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B. Are there other versions of this rule?
There are no previous versions of R18-2-B1302 (``Rule B1302'') in
the SIP.
C. What is the purpose of the submitted rule?
On June 22, 2010, the EPA promulgated a new 1-hour primary sulfur
dioxide (SO2) National Ambient Air Quality Standard (NAAQS)
of 75 parts per billion (ppb). On August 5, 2013, the EPA designated
the Hayden area within Arizona as nonattainment for the 2010
SO2 NAAQS. This designation became effective on October 4,
2013. Section 191(a) of the CAA directs states to submit SIPs for areas
designated as nonattainment for the SO2 NAAQS to the EPA
within 18 months of the effective date of the designation, i.e., by no
later than April 4, 2015, in this case. Under CAA section 192(a), these
plans are required to have measures that will help their respective
areas attain the NAAQS as expeditiously as practicable, but no later
than 5 years from the effective date of designation, which for the
Hayden SO2 NAA was October 4, 2018.
ADEQ submitted an attainment plan for the Hayden SO2
nonattainment area on March 9, 2017 (``Hayden SO2 Plan'')
and submitted associated final rules, including Rule B1302, on April 6,
2017.\2\ Rule R18-2-B1302 establishes control requirements for
SO2 emissions from the copper smelter located in the Hayden,
AZ nonattainment area (``Hayden Smelter'').
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\2\ Letters dated March 8, 2017 and April 6, 2017 from Timothy
S. Franquist, Director, Air Quality Division, ADEQ, to Alexis
Strauss, Acting Regional Administrator, EPA, Region IX. Although the
cover letter for the Hayden SO2 Plan was dated March 8,
2017, the Plan was transmitted to the EPA on March 9, 2017.
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II. The EPA's Evaluation and Action
A. How is the EPA evaluating the rule?
Rules in a SIP must be enforceable (see CAA section 110(a)(2)),
must not interfere with applicable requirements concerning attainment
and reasonable further progress or other CAA requirements (see CAA
section 110(l)), and must not modify certain SIP control requirements
in nonattainment areas without ensuring equivalent or greater emissions
reductions (see CAA section 193). CAA section 172(c)(1) requires that
SIPs for nonattainment areas provide for the implementation of all
reasonably available control measures (RACM), including any reasonably
available control technology (RACT), in order to provide for attainment
of the NAAQS, and CAA section 172(c)(6) requires that such SIPs
``include enforceable emission limitations, and such other control
measures means or techniques . . . as well as schedules and timetables
for compliance, as may be necessary or appropriate to provide for
attainment of such standard in such area by the applicable attainment
date . . .''
Guidance and policy documents that we use to evaluate
enforceability, revision and rule stringency requirements for the
applicable criteria pollutants include the following:
``State Implementation Plans; General Preamble for the
Implementation of Title I of the Clean Air Act Amendments of 1990,'' 57
FR
[[Page 31115]]
13498 (April 16, 1992); 57 FR 18070 (April 28, 1992).
``Issues Relating to VOC Regulation Cutpoints,
Deficiencies, and Deviations,'' EPA, May 25, 1988 (the Bluebook,
revised January 11, 1990).
``Guidance Document for Correcting Common VOC & Other Rule
Deficiencies,'' EPA Region 9, August 21, 2001 (the Little Bluebook).
``Guidance for 1-Hour SO2 Nonattainment Area
SIP Submissions,'' EPA Office of Air Quality Planning and Standards
(April 23, 2014).
B. Does the rule meet the evaluation criteria?
Rule B1302 improves the SIP by establishing a more stringent
SO2 emission limit for the main stack at the Hayden smelter
than the existing requirements in state law, as well as new operational
standards and monitoring, recordkeeping and reporting requirements for
the smelter. The rule is partly consistent with CAA requirements and
relevant guidance regarding enforceability and SIP revisions. Rule
provisions that do not meet the evaluation criteria are summarized
below and discussed further in the technical support document (TSD) for
this action.
C. What are the rule deficiencies?
These aspects of the rule do not satisfy the requirements of
section 110 and 172(c)(6) of the Act and prevent full approval of the
SIP revision:
1. The rule does not contain any numeric emission limit(s) or
ongoing monitoring requirements corresponding to the levels of fugitive
emissions that were modeled in the Hayden SO2 Plan.\3\
Therefore, the rule does not fully satisfy CAA section 172(c)(6).
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\3\ The EPA is proposing to partially approve and partially
disapprove the Hayden SO2 Plan in a separate rulemaking
action.
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2. Rule subsection (E)(4) provides an option for alternative
sampling points that could undermine the enforceability of the stack
emission limit by providing undue flexibility to change sampling points
without undergoing a SIP revision.
3. Rule subsection (E)(6) allows for just under 10% of total
facility SO2 emissions annually to be exempt from CEMS; this
could compromise the enforceability of the main stack emission limit.
4. The rule lacks a method for measuring or calculating emissions
from the shutdown ventilation flue; this could compromise the
enforceability of the main stack emission limit.\4\
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\4\ Rule B1302, section (F)(2) contains a procedure for
substituting emissions data for compliance demonstration purposes,
``when no valid hour or hours of data have been recorded by a
continuous monitoring system.'' In the absence of a method for
calculating hourly emissions, it is unclear when this procedure is
to be used.
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5. The rule lacks a method for calculating hourly SO2
emissions, so it is unclear what constitutes a ``valid hour'' for
purposes of allowing data substitution.
D. EPA Recommendations To Further Improve the Rule
In addition to detailing the rule deficiencies listed in the
previous section, the TSD includes several other recommendations for
improvement for the next time the State modifies the rule.
E. Proposed Action and Public Comment
As authorized in sections 110(k)(3) and 301(a) of the Act, the EPA
is proposing a limited approval and limited disapproval of the
submitted rule. We will accept comments from the public on this
proposal until June 22, 2020. If finalized, this action would
incorporate the submitted rule into the SIP, including those provisions
identified as deficient. This approval is limited because the EPA is
simultaneously proposing a limited disapproval of the rule under
section 110(k)(3).
Rule B1302 is relied upon by Arizona in the Hayden SO2
Attainment State Implementation Plan, which is required under CAA title
I, part D. Therefore, if finalized, this disapproval would trigger
sanctions under CAA section 179 and 40 CFR 52.31, unless the EPA
determines that a subsequent SIP revision corrects the rule
deficiencies within 18 months of the effective date of the final
action.
Note that the submitted rule has been adopted by ADEQ, and the
EPA's final limited disapproval would not prevent the State from
enforcing it. The limited disapproval also would not prevent any
portion of the rule from being incorporated by reference into the
federally enforceable SIP.\5\
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\5\ See Memorandum dated July 21, 1992 from John Calcagni,
Director Air Quality Management Division, to EPA Regional Air
Directors, Regions I-X, Subject: ``Processing of State
Implementation Plan (SIP) Submittals.''
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III. Incorporation by Reference
In this rule, the EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by
reference the ADEQ rules described in Table 1 of this preamble. The EPA
has made, and will continue to make, these materials available through
www.regulations.gov and at the EPA Region IX Office (please contact the
person identified in the FOR FURTHER INFORMATION CONTACT section of
this preamble for more information).
IV. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at http://www.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
This action is not expected to be an Executive Order 13771
regulatory action because this action is not significant under
Executive Order 12866.
C. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the PRA because this action does not impose additional requirements
beyond those imposed by state law.
D. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities beyond those
imposed by state law.
E. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. This action does not impose additional requirements
beyond those imposed by state law. Accordingly, no additional costs to
state, local, or tribal governments, or to the private sector, will
result from this action.
F. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.
[[Page 31116]]
G. Executive Order 13175: Coordination With Indian Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175, because the SIP is not approved to apply on any
Indian reservation land or in any other area where the EPA or an Indian
tribe has demonstrated that a tribe has jurisdiction, and will not
impose substantial direct costs on tribal governments or preempt tribal
law. Thus, Executive Order 13175 does not apply to this action.
H. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it does not impose additional
requirements beyond those imposed by state law.
I. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
J. National Technology Transfer and Advancement Act (NTTAA)
Section 12(d) of the NTTAA directs the EPA to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. The EPA
believes that this action is not subject to the requirements of section
12(d) of the NTTAA because application of those requirements would be
inconsistent with the CAA.
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Population
The EPA lacks the discretionary authority to address environmental
justice in this rulemaking.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Sulfur dioxide, Reporting and
recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 12, 2020.
John Busterud,
Regional Administrator, Region IX.
[FR Doc. 2020-10587 Filed 5-21-20; 8:45 am]
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