[Federal Register Volume 78, Number 146 (Tuesday, July 30, 2013)]
[Rules and Regulations]
[Pages 46141-46176]
[FR Doc No: 2013-18022]

Vol. 78

Tuesday,

No. 146

July 30, 2013

Part IV

Environmental Protection Agency

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40 CFR Part 52

 Approval and Disapproval of Air Quality State Implementation Plans;
Arizona; Regional Haze and Interstate Transport Requirements; Rules

Federal Register / Vol. 78 , No. 146 / Tuesday, July 30, 2013 / Rules
and Regulations

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2012-0904, FRL-9838-4]

Approval and Disapproval of Air Quality State Implementation
Plans; Arizona; Regional Haze and Interstate Transport Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to approve in part and disapprove
in part a portion of Arizona's State Implementation Plan (SIP) to
implement the regional haze program for the first planning period
through 2018. This final rule completes our evaluation of Arizona's
Best Available Retrofit Technology (BART) control analyses and
determinations, Reasonable Progress Goals (RPGs) for the State's 12
Class I areas, Long-term Strategy (LTS), and other elements of the
State's regional haze plan as well as the Interstate Transport
requirements for visibility. Today's action includes our responses to
comments that we received on our proposed rules published in the
Federal Register on December 21, 2012, and on May 20, 2013. Regional
haze is caused by emissions of air pollutants from numerous sources
located over a broad geographic area. The Clean Air Act (CAA) requires
states to adopt and submit to EPA SIPs that assure reasonable progress
toward the national goal of achieving natural visibility conditions in
156 national parks and wilderness areas designated as Class I areas.
EPA will continue to work with Arizona to develop plan revisions to
address the provisions of the SIP that we are disapproving today.

DATES: Effective date: This rule is effective August 29, 2013.

ADDRESSES: EPA has established docket number EPA-R09-OAR-2012-0904 for
this action. Generally, documents in the docket are available
electronically at http://www.regulations.gov or in hard copy at EPA
Region 9, 75 Hawthorne Street, San Francisco, California. Please note
that while many of the documents in the docket are listed at http://www.regulations.gov, some information may not be specifically listed in
the index to the docket and may be publicly available only at the hard
copy location (e.g., copyrighted material, large maps, multi-volume
reports or otherwise voluminous materials), and some may not be
available at either locations (e.g., confidential business
information). To inspect the hard copy materials, please schedule an
appointment during normal business hours with the contact listed
directly below.

FOR FURTHER INFORMATION CONTACT: Gregory Nudd, U.S. EPA, Region 9,
Planning Office, Air Division, Air-2, 75 Hawthorne Street, San
Francisco, CA 94105. Gregory Nudd can be reached at telephone number
(415) 947-4107 and via electronic mail at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Definitions

    (1) The words or initials Act or CAA mean or refer to the Clean
Air Act, unless the context indicates otherwise.
    (2) The initials ADEQ mean or refer to the Arizona Department of
Environmental Quality.
    (3) The words Arizona and State mean the State of Arizona.
    (4) The initials BACT mean or refer to Best Available Control
Technology.
    (5) The initials BART mean or refer to Best Available Retrofit
Technology.
    (6) The term Class I area refers to a mandatory Class I Federal
area.
    (7) The initials CD mean or refer to Consent Decree.
    (8) The initials dv mean or refer to deciview, a measure of
visual range.
    (9) The words EPA, we, us or our mean or refer to the United
States Environmental Protection Agency.
    (10) The initials FGD mean or refer to flue gas desulfurization.
    (11) The initials FIP mean or refer to Federal Implementation
Plan.
    (12) The initials FLM mean or refer to Federal Land Managers.
    (13) The initials IMPROVE mean or refer to Interagency
Monitoring of Protected Visual Environments monitoring network.
    (14) The initials lb/MMBtu mean or refer to pounds per one
million British thermal units.
    (15) The initials LTS mean or refer to Long-term Strategy.
    (16) The initials MACT mean or refer to Maximum Achievable
Control Technology.
    (17) The initials NAAQS mean or refer to National Ambient Air
Quality Standards.
    (18) The initials NM mean or refer to National Monument.
    (19) The initials NOX mean or refer to nitrogen
oxides.
    (20) The initials NP mean or refer to National Park.
    (21) The initials NPS mean or refer to the National Park
Service.
    (22) The initials NSPS mean or refer to new source performance
standards.
    (23) The initials PM mean or refer to particulate matter.
    (24) The initials PM2.5 mean or refer to fine particulate matter
with an aerodynamic diameter of less than 2.5 micrometers.
    (25) The initials PM10 mean or refer to particulate matter with
an aerodynamic diameter of less than 10 micrometers (coarse
particulate matter).
    (26) The initials PSD mean or refer to Prevention of Significant
Deterioration.
    (27) The initials PTE mean or refer to Potential to Emit.
    (28) The initials RH mean or refer to regional haze.
    (29) The initials RHR mean or refer to the Regional Haze Rule,
originally promulgated in 1999 and codified at 40 CFR 51.301-309.
    (30) The initials RMC mean or refer to Regional Modeling Center.
    (31) The initials RP mean or refer to Reasonable Progress.
    (32) The initials RPG or RPGs mean or refer to Reasonable
Progress Goal(s).
    (33) The initials SCR mean or refer to Selective Catalytic
Reduction.
    (34) The initials SIP mean or refer to State Implementation
Plan.
    (35) The initials SNCR mean or refer to Selective Non-catalytic
Reduction.
    (36) The initials SO2 mean or refer to sulfur dioxide.
    (37) The initials SRP mean or refer to Salt River Project
Agricultural Improvement and Power District.
    (38) The initials tpy mean tons per year.
    (39) The initials TSD mean or refer to Technical Support
Document.
    (40) The initials URP mean or refer to Uniform Rate of Progress.
    (41) The initials VOC mean or refer to volatile organic
compounds.
    (42) The initials WRAP mean or refer to the Western Regional Air
Partnership.

Table of Contents

I. Summary of Proposed Actions
    A. Regional Haze
    B. Interstate Transport of Pollutants That Affect Visibility
II. Review of State and EPA Actions on Regional Haze
    A. EPA's Schedule to Act on Arizona's RH SIP
    B. History of State Submittals and EPA Actions
    C. Legal Basis for Our Final Action
III. Overview of Final Action on Regional Haze and Interstate
Transport
    A. BART Analyses and Determinations
    B. Reasonable Progress Goals
    C. Long-Term Strategy
    D. Interstate Transport
    E. Supporting Elements
IV. EPA's Responses to Comments
    A. Responses to Comments on the Proposal of December 21, 2012
    B. Responses to Comments on the Proposal of May 20, 2013
V. Summary of Final Action
    A. Regional Haze
    B. Interstate Transport
    C. Federal Implementation Plan
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from
Environmental Health Risks and Safety Risks

    H. Executive Order 13211: Actions that Significantly Affect
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations
    K. Congressional Review Act
    L. Petitions for Judicial Review

I. Summary of Proposed Actions

 A. Regional Haze

    EPA proposed on December 21, 2012, to approve in part and
disapprove in part the remaining portion of Arizona's Regional Haze
(RH) SIP submitted to EPA Region 9 on February 28, 2011 (``2011 RH
SIP''), to meet the requirements of Section 308 of the Regional Haze
Rule (RHR).\1\ We proposed to take action on Arizona's BART control
analyses and determinations, RPGs for each of the 12 Class I areas, and
LTS. We also proposed to take action on the requirements that support
these major components of the plan, including the identification of
Class I areas impaired by Arizona's emissions, estimated visibility
conditions, emission inventories, and the State's monitoring strategy.
Arizona submitted a revision to its 2011 RH SIP on May 3, 2013
(``Arizona RH SIP Supplement'' or ``Supplement''), addressing some of
the elements of its SIP that we had proposed to disapprove in our
notice of December 21, 2012. We then proposed in a notice published on
May 20, 2013, to approve in part and disapprove in part elements of the
supplemental SIP. Today, we are taking final action on those portions
of the 2011 RH SIP as modified by the Supplement (collectively
``Arizona RH SIP''), which were addressed in our proposed rules on
December 21, 2012, and on May 20, 2013. Not included in today's action
are the three BART sources in Arizona that we addressed in a final rule
published on December 5, 2012.\2\ The following is a summary of our
proposed rules published on December 21, 2012, and May 20, 2013.
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    \1\ 77 FR 75704. Please see the proposal for a summary of the
requirements of the RHR and the CAA concerning visibility
protection.
    \2\ See 77 FR 72512.
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    Supporting Elements: In our notice of December 21, 2012, EPA
proposed to approve Arizona's identification of Class I areas that may
experience visibility impairment due to emissions from sources within
the State; Arizona's estimated visibility conditions for baseline, 2018
and 2064; Arizona's uniform rate of progress (URP) for each Class I
area; Arizona's emission inventories for 2002 and 2018; and Arizona's
identification of the sources of visibility impairment. However,
because the 2011 RH SIP did not include the most recently available
emission inventory, we proposed to disapprove the 2011 RH SIP with
respect to this requirement. In our notice of May 20, 2013, we proposed
to approve Arizona's emissions inventory for 2008 submitted on May 3,
2013, as part of the Supplement.
    BART-Eligible: In our notice of December 21, 2012, EPA proposed to
approve Arizona's determination that specific units at the following
six sources are eligible for BART: ASARCO Hayden Smelter (Hayden
Smelter); Freeport-McMoRan Inc. Miami Smelter (Miami Smelter); Chemical
Lime Nelson Plant (Nelson Lime Plant) Kilns 1 and 2; Arizona Public
Service West Phoenix Power Plant (West Phoenix Power Plant) Combined
Cycle Units 1 through 3; CalPortland Rillito Cement Plant (Rillito
Cement Plant) Kiln 4; and Catalyst Pulp Mill in Snowflake (Catalyst
Paper) Power Boiler 2.\3\ We proposed to disapprove Arizona's
determination that Tucson Electric Power Sundt Generating Station
(Sundt) Unit 4 is not eligible for BART. Finally, we proposed to
approve the State's determination that no other units in the State are
BART-eligible. In particular, we proposed to approve the State's
finding that Cholla Power Plant Unit 1 and Sundt Unit 3 are not BART-
eligible. In our notice of May 20, 2013, we proposed to approve
revisions to the sets of BART-eligible units at the Hayden and Miami
Smelters.
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    \3\ We have already approved ADEQ's determination that Arizona
Electric Power Cooperative (AEPCO) Apache Generating Station
(Apache) Units 1-3, Arizona Public Service Cholla Power Plant
(Cholla) Units 2-4, and Salt River Project Coronado Generating
Station (Coronado) 1-2 are BART-eligible. See 77 FR 72512.
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    Not Subject to BART: In our notice of December 21, 2012, EPA
proposed to approve Arizona's decision to set 0.5 deciview (dv) as the
threshold for determining whether sources are subject to BART, but
requested comments on whether this threshold is reasonable. We proposed
to approve Arizona's determination that two eligible sources are exempt
from BART based on this threshold. These BART-exempt sources are the
West Phoenix Power Plant and the Rillito Cement Plant. We proposed to
disapprove Arizona's determination that Nelson Lime Plant is exempt
from BART, but sought comments on whether this determination was
reasonable. In our notice of May 20, 2013, we proposed again to
disapprove Arizona's new determination that the Miami Smelter is exempt
from a BART analysis for nitrogen oxides (NOX), and that the
Hayden Smelter is exempt from a BART analysis for coarse particulate
matter (PM10). We also proposed to approve the State's
finding that a BART analysis is not required for Catalyst Paper due to
the plant's closure.
    BART-Subject: In our notice of December 21, 2012, EPA proposed to
approve Arizona's determination that two sources are subject to BART.
These sources are the Hayden and Miami Smelters. In our notice of May
20, 2013, we proposed to approve revised sets of BART-subject units for
the Miami and Hayden Smelters.
    BART Determination: In our notice of December 21, 2012, EPA
proposed to approve Arizona's BART determinations for NOX at
Hayden Smelter and for PM10 at Miami Smelter. We proposed to
disapprove Arizona's conclusion that a BART determination is not
required for PM10 at the Hayden Smelter and for
NOX at the Miami Smelter. We proposed alternatively to
approve or disapprove the State's BART determination for sulfur dioxide
(SO2) at the Hayden and Miami Smelters depending on a more
detailed BART demonstration from the State. We proposed not to act on
the State's BART determination for Catalyst Paper because this facility
is no longer in operation. Further, we proposed to disapprove the
compliance schedules and requirements for equipment maintenance and
operation related to BART controls at the Hayden Smelter and the Miami
Smelter because these were not included in the State's 2011 RH SIP. In
our notice of May 20, 2013, we proposed to approve Arizona's
determination that BART for PM10 at the Hayden Smelter is no
additional controls. We also proposed a clarification in the
application of the emissions limit to Apache Unit 1, and a correction
to Table 4 in our December 21, 2012, notice in which the baseline
values for Saguaro East and Saguaro West were reversed.
    Reasonable Progress Goals: In our notice of December 21, 2012, EPA
proposed to disapprove Arizona's RPGs for 2018 on the 20 percent least
impaired (``best'') days and 20 percent most impaired (``worst'') days
at all of the State's Class I areas. We proposed to find that the State
has not demonstrated that these goals constitute reasonable progress by
2018 toward the ultimate goal of natural conditions by 2064. Based on
our own supplemental analysis, we proposed to approve the State's
finding that it is not reasonable to require additional controls on
mobile sources of NOX, SO2 or volatile organic
compounds (VOCs) or on point sources

of SO2 during this planning period. However, we proposed to
disapprove the State's finding that no additional controls are needed
on coarse mass and fine soil emissions, point sources of
NOX, and area sources of NOX and SO2.
In our notice of May 20, 2013, we proposed to approve the State's
finding that it is not reasonable to require additional controls on
sources of coarse mass and fine soil during the first planning period.
However, we proposed to disapprove the State's determination that it is
not reasonable to require additional controls on point sources of
NOX or area sources of NOX and SO2.
Because we were still proposing to disapprove certain aspects of the
State's RP analysis, we did not revise our proposal to disapprove the
State's RPGs.
    Long-term Strategy: In our notice of December 21, 2012, EPA
proposed to approve Arizona's interstate consultation process, the
technical basis for its apportionment of emission reductions, and the
identification of all anthropogenic sources of visibility impairment.
Regarding the seven mandatory factors a state must consider for the
LTS, we proposed to find that Arizona considered emissions reductions
due to ongoing air pollution control programs, measures to mitigate the
impacts of construction activities, source retirement and replacement
schedules, smoke management techniques, and the anticipated net effect
on visibility due to projected changes in emissions through 2018.
However, we proposed to find that the Arizona RH SIP did not include
all measures needed to achieve the State's apportionment of emission
reduction obligations with respect to out-of-state Class I areas. We
also proposed to find that Arizona did not meet the requirements for
emissions limitations and schedules of compliance to achieve the RPGs
or the enforceability of emissions limits and control measures. Our
notice of May 20, 2013, did not propose any further action on the LTS
since the State did not address these requirements in its supplemental
SIP.

 B. Interstate Transport of Pollutants That Affect Visibility

    CAA section 110(a)(2)(D)(i)(II) requires that all SIPs contain
adequate provisions to prohibit emissions that will interfere with
other states' required measures to protect visibility. In response to
the promulgation of the revised National Ambient Air Quality Standard
(NAAQS) for ozone in 1997,\4\ the new NAAQS for fine particulate matter
(PM2.5) in 1997,\5\ and the revised PM2.5 NAAQS
in 2006,\6\ states were required to submit SIP revisions to address the
interstate transport visibility requirement. ADEQ submitted such SIP
revisions in 2007 for the 1997 ozone and 1997 PM2.5 NAAQS
(2007 Transport SIP) \7\ and in 2009 for the 2006 PM2.5
NAAQS (2009 Transport SIP).\8\ Each of these SIP revisions indicated
that it would be appropriate to assess Arizona's interference with
other states' measures to protect visibility in conjunction with the
State's regional haze SIP. Because ADEQ did not specify a particular
part of the Arizona RH SIP as addressing the interstate transport
visibility requirement, we interpreted those SIP revisions to mean that
ADEQ intended the Arizona RH SIP as a whole to address the interstate
transport visibility requirement for these three NAAQS. Thus, our
December 21, 2012, proposal presented EPA's evaluation of the Arizona
RH SIP in addressing these requirements. Based on this evaluation, we
proposed to disapprove Arizona's 2007 and 2009 Transport SIPs, along
with the Arizona RH SIP itself, with respect to the interstate
transport visibility requirement of CAA section 110(a)(2)(D)(i)(II) for
the 1997 8-hour ozone, 1997 p.m.2.5, and 2006 p.m.2.5 NAAQS.
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    \4\ 62 FR 38856, July 18, 1997.
    \5\ 62 FR 38652, July 18, 1997.
    \6\ 71 FR 61144, October 17, 2006.
    \7\ ``Revision to the Arizona State Implementation Plan Under
Clean Air Act Section 110(a)(2)(D)(i)--Regional Transport,''
submitted by ADEQ on May 24, 2007. As noted in our proposal of
December 21, 2012, EPA approved this SIP revision with respect to
the first three interstate transport requirements of CAA section
110(a)(2)(D)(i), but deferred action on the interstate transport
visibility requirement, often referred to as prong 4, until we
received Arizona's final Regional Haze SIP. 72 FR 41629, July 31,
2007.
    \8\ ``Arizona State Implementation Plan Revision under Clean Air
Act Section 110(a)(1) and (2); 2006 PM2.5 NAAQS, 1997
PM2.5 NAAQS, and 1997 8-hour Ozone NAAQS,'' submitted by
ADEQ on October 14, 2009, which addressed the requirements of
section 110(a)(2)(D)(i) with respect to the 2006 PM2.5
NAAQS in Section 2.4 and Appendix B of the submittal. As noted in
our proposal of December 21, 2012, EPA finalized action on this SIP
revision with respect to the first three requirements of section
110(a)(2)(D)(i), but deferred action on the interstate transport
visibility requirement until we received Arizona's final Regional
Haze SIP. 77 FR 66398, November 5, 2012.
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II. Review of State and EPA Actions on Regional Haze

 A. EPA's Schedule to Act on Arizona's RH SIP

    EPA received a notice of intent to sue in January 2011 stating that
we had not met the statutory deadline for promulgating Regional Haze
FIPs and/or approving Regional Haze SIPs for dozens of states,
including Arizona. This notice was followed by a lawsuit filed by
several advocacy groups (Plaintiffs) in August 2011.\9\ In order to
resolve this lawsuit and avoid litigation, EPA entered into a Consent
Decree with the Plaintiffs, which sets deadlines for action for all of
the states covered by the lawsuit, including Arizona. This decree was
entered and later amended by the United States District Court for the
District of Columbia over the opposition of Arizona.\10\ Under the
terms of the Consent Decree, as amended, EPA is currently subject to
three sets of deadlines for taking action on Arizona's RH SIP as listed
in Table 1.\11\
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    \9\ National Parks Conservation Association v. Jackson (D.D.C.
Case 1:11-cv-01548).
    \10\ National Parks Conservation Association v. Jackson (D.D.C.
Case 1:11-cv-01548), Memorandum Order and Opinion (May 25, 2012),
Minute Order (July 2, 2012), Minute Order (November 13, 2012) and
Minute Order (February 15, 2013).
    \11\ Id.

                      Table 1--Consent Decree Deadlines for EPA to Act on Arizona's RH SIP
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            EPA Actions                         Proposed rule                            Final rule
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Phase 1--BART determinations for    July 2, 2012 \1\.....................  November 15, 2012 \2\.
 Apache, Cholla and Coronado.
Phase 2--All remaining elements of  December 8, 2012 \3\.................  July 15, 2013.
 the Arizona RH SIP.
Phase 3--FIP for disapproved        September 6, 2013....................  February 6, 2014.
 elements of the Arizona RH SIP
 (if required).
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\1\ Published in the Federal Register on July 20, 2012, 77 FR 42834.
\2\ Published in the Federal Register on December 5, 2012, 77 FR 72512.
\3\ Published in the Federal Register on December 21, 2012, 77 FR 75704.

B. History of State Submittals and EPA Actions

    Because four of Arizona's twelve mandatory Class I Federal areas
are on the Colorado Plateau, the State had the option of submitting a
Regional Haze SIP under section 309 of the RHR. A SIP that is approved
by EPA as meeting all of the requirements of section 309 is ``deemed to
comply with the requirements for reasonable progress with respect to
the 16 Class I areas [on the Colorado Plateau] for the period from
approval of the plan through 2018.'' \12\ When these regulations were
first promulgated, 309 SIPs were due no later than December 31, 2003.
Accordingly, ADEQ submitted to EPA on December 23, 2003, a 309 SIP for
Arizona's four Class I Areas on the Colorado Plateau. ADEQ submitted a
revision to its 309 SIP, consisting of rules on emissions trading and
smoke management, and a correction to the State's regional haze
statutes, on December 31, 2004. EPA approved the smoke management rules
submitted as part of the revisions in 2004,\13\ but did not propose or
take final action on any other portion of the 309 SIP.
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    \12\ 40 CFR 51.309(a).
    \13\ 71 FR 28270 and 72 FR 25973.
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    In response to an adverse court decision,\14\ EPA revised 40 CFR
51.309 on October 13, 2006, making a number of substantive changes and
requiring states to submit revised 309 SIPs by December 17, 2007.\15\
Subsequently, ADEQ sent a letter to EPA dated December 24, 2008,
acknowledging that it had not submitted a SIP revision to address the
requirements of 40 CFR 51.309(d)(4) related to stationary sources and
40 CFR 51.309(g), which governs reasonable progress requirements for
Arizona's eight mandatory Class I areas outside of the Colorado
Plateau.\16\ EPA proposed on February 5, 2013,\17\ to disapprove
Arizona's 309 SIP except for the smoke management rules that we had
previously approved.
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    \14\ Center for Energy and Economic Development v. EPA, 398 F.3d
653 (D.C. Circuit 2005).
    \15\ 71 FR 60612.
    \16\ Letter from Stephen A. Owens, ADEQ, to Wayne Nastri, EPA
(December 24, 2008).
    \17\ 78 FR 8083.
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    EPA made a finding on January 15, 2009, that 37 states, including
Arizona, had failed to make all or part of the required SIP submissions
to address regional haze.\18\ Specifically, EPA found that Arizona
failed to submit the plan elements required by 40 CFR 51.309(d)(4) and
(g). EPA sent a letter to ADEQ on January 14, 2009, notifying the State
of this failure to submit a complete SIP. ADEQ later decided to submit
a SIP under section 308, instead of under section 309.
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    \18\ 74 FR 2392.
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    ADEQ adopted and transmitted its 2011 Regional Haze SIP under
section 308 of the RHR to EPA Region 9 in a letter dated February 28,
2011. The SIP was determined complete by operation of law on August 28,
2011.\19\ The SIP was properly noticed by the State and available for
public comment for 30 days prior to a public hearing held in Phoenix,
Arizona, on December 2, 2010. Arizona included in its SIP responses to
written comments from EPA Region 9, the National Park Service, the U.S.
Forest Service, and other stakeholders including regulated industries
and environmental organizations. The 2011 RH SIP is available to review
in the docket for the proposed rule.\20\
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    \19\ CAA section 110(k)(1)(B).
    \20\ ``Arizona State Implementation Plan, Regional Haze under
Section 308 Of the Federal Regional Haze Rule,'' February 28, 2011.
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    As indicated in Table 1, the first phase of EPA's action on the
2011 RH SIP addressed three BART sources. The final rule for this phase
(a partial approval and partial disapproval of the State's plan and a
partial FIP) was signed by the Administrator on November 15, 2012, and
published in the Federal Register on December 5, 2012. The emission
limits on the three sources will improve visibility by reducing
NOX emissions by about 22,700 tons per year. In the second
phase of our action, we proposed on December 21, 2012, to approve in
part and disapprove in part the remainder of the 2011 RH SIP. ADEQ
submitted the Arizona RH SIP Supplement on May 3, 2013, to correct
certain deficiencies identified in that proposal. We then proposed on
May 20, 2013, to approve in part and disapprove in part the Supplement.
Today, we are taking final action on those elements of the Arizona RH
SIP included in our proposed rules of December 21, 2012, and May 20,
2013. We intend to address all the disapproved elements of the Arizona
RH SIP from Phase 2 in a proposed FIP due for signature by September 6,
2013 (See Table 1).

C. Legal Basis for Our Final Action

    Our action is based on an evaluation of the Arizona RH SIP
submitted on February 28, 2011, and supplemented on May 3, 2013, to
meet the requirements of Section 308 of the RHR (collectively ``Arizona
RH SIP''). We evaluated the Arizona RH SIP for compliance with the
requirements of the RHR and CAA sections 169A and 169B. We also applied
the general SIP requirements in CAA section 110 and 40 CFR Part 51. Our
authority for action on the Arizona RH SIP is based on CAA section
110(k). Our authority to promulgate a FIP is based on CAA section
110(c).

III. Overview of Final Action on Regional Haze and Interstate Transport

    This is an overview of today's final action on the rules that were
proposed on December 21, 2012, and on May 20, 2013. In this section, we
list the final approvals and disapprovals for each of the three major
portions of the RHR: BART Analyses and Determinations, RPGs, and LTS.
This is followed by our final action on the Interstate Transport
requirement. EPA must address all of the final disapprovals in an
upcoming proposed FIP, which will be available for review and comment.
In addition, we are approving all the supporting elements of the
Arizona RH SIP as proposed. For a general description of our evaluation
of Arizona's BART and RP analyses, please refer to the section entitled
``Summary of Final Action.''
    EPA takes very seriously the decision to disapprove in part the
Arizona RH SIP. However, for the reasons set forth in our proposals and
elsewhere in this document, we have determined this partial approval
and partial disapproval is consistent with the requirements of the CAA
and the RHR, while full approval of the SIP would be inconsistent with
these requirements. EPA will continue to work with ADEQ to address all
of the elements of the Arizona RH SIP that we have disapproved.

 A. BART Analyses and Determinations

    Final approval: We are approving Arizona's determination that
Cholla Unit 1 and Sundt Unit 3 are not BART-eligible. We are approving
Arizona's BART threshold of 0.5 dv and its determination that West
Phoenix Power Plant and the Rillito Cement Plant are not subject to
BART. We are approving the State's conclusion that the Hayden Smelter
is subject to BART for SO2 and the Miami Smelter is subject
to BART for SO2 and PM10. We also are approving a
revised set of emission units that are subject to BART at each smelter.
We are approving Arizona's determination that BART for PM10
at the Hayden Smelter is no additional controls and that the NESHAP for
Primary Copper Smelting constitutes BART for PM emissions at the Miami
Smelter. Finally, we are approving the State's determination that a
BART analysis is not required for Catalyst Paper, and approving a

correction to the applicability of the BART limit for NOX on
Apache Unit 1.
    Final disapproval: We are disapproving Arizona's determination that
Sundt Unit 4 is not BART eligible, and that Chemical Lime Nelson is not
subject to BART. We are disapproving the State's determination that the
Hayden Smelter is not subject to BART for PM10 and that the
Hayden and Miami Smelters are not subject to BART for NOX.
We also are disapproving the State's BART determinations for
SO2 at the Hayden and Miami Smelters. Based on these final
disapprovals, EPA is required to conduct BART analyses in an upcoming
FIP for Sundt Unit 4, Chemical Lime Nelson Kilns 1 and 2, the Hayden
Smelter (NOX and SO2), and the Miami Smelter
(NOX and SO2).

 B. Reasonable Progress Goals

    Final approval: We are approving Arizona's calculations of the URP
to 2064 and the number of years it will take to attain natural
conditions at the State's Class I areas. Regarding sub-parts of the RP
analysis, we are approving the State's decision to consider no further
reductions from mobile sources, to exclude coarse mass and fine soils,
and to require no additional SO2 controls on non-BART point
sources.
    Final disapproval: We are disapproving Arizona's RPGs for the 20
percent worst days and 20 percent best days as well as portions of the
State's broader RP analysis that provides the basis for the RPGs. In
particular, we are disapproving specific elements of the State's RP
analysis for area sources of NOX and SO2 and
point sources of NOX. We also are disapproving the State's
demonstration that the rates of progress reflected in its RPGs are
reasonable.

C. Long-Term Strategy

    Final approval: We are approving most of the mandatory factors that
a state must consider in the LTS. These factors include interstate
consultation, the technical basis for the State's apportionment of
emission reduction obligations, identification of anthropogenic sources
of visibility impairment, emission reductions from ongoing air
programs, measures to mitigate construction activities, smoke
management plans and techniques, anticipated net effect on visibility
by 2018, and source retirement and replacement schedules.
    Final disapproval: We are disapproving the Arizona RH SIP with
respect to measures needed to achieve emission reductions, emission
limits and schedules of compliance, and enforceability of emission
limits and controls.

D. Interstate Transport

    Final disapproval: EPA is disapproving Arizona's 2007 and 2009
Transport SIPs and the Arizona RH SIP with respect to the interstate
transport visibility requirement of CAA section 110(a)(2)(D)(i)(II) for
the 1997 8-hour ozone, 1997 PM2.5, and 2006 PM2.5
NAAQS. This follows from our finding that, as a result of the partial
disapprovals of the RH SIP, the Arizona SIP does not contain adequate
provisions to prohibit emissions that will interfere with SIP measures
required of other states to protect visibility.

E. Supporting Elements

    We are approving the following the supporting elements of the
Arizona RH SIP: Arizona's identification of Class I areas that may
experience visibility impairment due to emissions from sources within
the State; Arizona's estimated visibility conditions for baseline, 2018
and 2064; Arizona's uniform rate of progress for each Class I area;
Arizona's emission inventories for 2002, 2008 and 2018; and Arizona's
identification of the sources of visibility impairment.

IV. EPA's Responses to Comments

A. Responses to Comments on the Proposal of December 21, 2012

    The initial deadline for public comments on our December 21, 2012,
proposal was February 4, 2013. After receiving several requests for an
extension of the comment period, we extended the due date for public
comments to March 6, 2013.\21\ We received timely comments from
representatives of the following entities:
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    \21\ 78 FR 7702.
---------------------------------------------------------------------------

     ADEQ;
     Apache County Board of Supervisors (Apache County);
     Arizona Mining Association (AMA);
     Arizona Public Service Co (APS);
     American Smelting and Refining Company (ASARCO);
     CalPortland Company (CalPortland);
     Earthjustice (on behalf of National Parks Conservation
Association, Sierra Club, Physicians for Social Responsibility (Arizona
Chapter) and San Juan Citizens Alliance);
     Freeport-McMoRan Miami Inc. (FMMI);
     Lhoist North America of Arizona (LNA);
     National Park Service (NPS);
     Phoenix Cement Company (PCC);
     Salt River Project (SRP);
     Mayor, Town of Clarkdale (Clarkdale);
     Tucson Electric Power Company (TEP); and
     Supervisor, Yavapai County District 3 (Yavapai County).
    We also received one late comment from the Competitive Enterprise
Institute (CEI). All of the comments we received along with attached
technical reports and analyses are available for review in the docket
for this action. The following sections contain summaries of the
comments and our responses to the comments.
1. State and EPA Actions on Regional Haze
a. State and Federal Roles in the Regional Haze Program
    Comment: Several commenters asserted that EPA's proposed
disapprovals infringe on Arizona's discretion under the CAA and the
RHR. These commenters noted that the CAA and the RHR provide that the
states, not EPA, have the primary role in implementing the regional
haze program, including making BART determinations and that EPA may
disapprove an RH SIP only where the SIP fails to satisfy the minimum
requirements of the Act. They generally asserted that there is no basis
for EPA to determine that the Arizona RH SIP violates any applicable
requirement of the CAA or RHR. In discussing the roles of EPA and
states under the CAA, the commenters cited CAA section 110, as well as
Train v. NRDC; \22\ Union Electric v. EPA; \23\ Montana Sulphur and
Chemical v. EPA; EME Homer City Generation v. EPA; \24\ Luminant
Generation Co. v. EPA; \25\ and State of Texas, v. EPA.\26\ With regard
to the regional haze program specifically, commenters also cited CAA
section 169A and American Corn Growers Ass'n v. EPA.\27\
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    \22\ 421 U.S. 60, 79 (1975).
    \23\ 427 U.S. 246 (1976).
    \24\ 696 F.3d 7 (D.C. Cir. 2012).
    \25\ 675 F.3d 917 (5th Cir. 2012).
    \26\ 690 F.3d 670 (5th Cir. 2012).
    \27\ 291 F.3d 1 (D.C. Cir. 2002).
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    One commenter (ASARCO) asserted that EPA is relegated by the Act to
a secondary role in the process of determining and enforcing the
specific, source-by-source emission limitations, and that in developing
SIPs the state has virtually absolute power in allocating emission
limitations so long as the national standards are met.
    Another commenter (CalPortland) stated that EPA cannot substitute
its judgment for Arizona's determination of reasonable progress.
According to the commenter, the State reasonably determined that
additional controls

should not be required during this planning period, and the Arizona RH
SIP provides significant and sufficient analysis to support its RPGs.
CalPortland asserted that 40 CFR 51.308(d) limits EPA's role to
evaluating the sufficiency of Arizona's reasonable progress
demonstration ``to achieve the progress goal adopted by the State.''
Citing Montana Sulphur & Chemical Co. v. EPA, 666 F.3d 1174, 1181 (9th
Cir. 2012), the commenter contended that the State is free to adopt
whatever mix of emissions limitations it deems best suited to its
particular situation. On this basis, the commenter asserted that EPA
must approve the Arizona RH SIP as adopted by the State.
    Response: We do not agree that our partial disapproval of the
Arizona RH SIP is contrary to the CAA, the RHR, or relevant case law.
As noted by several commenters, states have the lead role in developing
Regional Haze SIPs. However, EPA also has a crucial role in reviewing
SIPs for compliance with the requirements of the CAA and its
implementing regulations. Pursuant to CAA section 110, states must
submit SIPs to EPA for review and EPA must review SIPs for consistency
with the Act's requirements and may not approve any SIP revision that
``would interfere with any applicable requirement'' of the Act.\28\
Furthermore, the CAA mandates that EPA promulgate a FIP when EPA finds
that a state has failed to submit a required SIP to the Agency, failed
to submit a complete SIP, or where EPA disapproves a SIP in whole or in
part.\29\ Thus, the CAA provides EPA with a critical oversight role in
ensuring that SIPs meet the Act's requirements.
---------------------------------------------------------------------------

    \28\ CAA section 110(a)(1), (k)(3) and (l), 42 U.S.C.
7410(a)(1), (k)(3) and (l).
    \29\ See id. 7410(c)(1).
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    Nothing in the CAA indicates that EPA's role is less important in
the context of the regional haze program than under other CAA programs.
On the contrary, CAA section 110(a)(2)(J) explicitly requires that SIPs
``meet the applicable requirements'' of Part C of Title I of the CAA
including the requirements for visibility protection set forth in
sections 169A and 169B.\30\ Pursuant to section 169A(b), EPA is
required to promulgate visibility protection regulations that apply to
``each applicable implementation plan'' (i.e., each SIP or FIP) \31\
for each state containing one or more Class I areas and each state
``emissions from which may reasonably be anticipated to cause or
contribute to any impairment of visibility in any [Class I area].''
\32\ The CAA specifies that these regulations (including the RHR) must
require each such SIP or FIP to ``contain such emission limits,
schedules of compliance and other measures as may be necessary to make
reasonable progress toward meeting the national goal,'' including
implementation of BART, as determined by the state (or by EPA in the
case of a FIP).\33\ Thus, the statute provides EPA a key oversight role
in reviewing SIPs for compliance with the RHR and BART requirements.
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    \30\ CAA sections 110(a)(2)(J), 169A and 169B, 42 U.S.C.
7410(a)(2)(J), 7491 and 7492.
    \31\ Under the CAA, ``applicable implementation plan'' is
defined as ``the portion (or portions) of the implementation plan,
or most recent revision thereof, which has been approved under [CAA
110], or promulgated under [CAA section 110](c) . . . and which
implements the relevant requirements of [the CAA].'' CAA section
302(q), 42 U.S.C. 7602(q). In other words, an ``applicable
implementation plan'' is an EPA-approved SIP or Tribal
Implementation Plan, or an EPA-promulgated FIP.
    \32\ 42 U.S.C. 7491(b)(2). In promulgating the RHR, EPA
determined that ``all States contain sources whose emissions are
reasonably anticipated to contribute to regional haze in a Class I
area and, therefore, must submit regional haze SIPs.'' 64 FR 35720;
see also 40 CFR 51.300(b)(3).
    \33\ 42 U.S.C. 7491(b)(2).
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    The cases cited by the commenters do not support an argument that
EPA's role as a reviewer is any less critical in the regional haze
context than it is in reviewing other SIP components. In American Corn
Growers v. EPA, the petitioners challenged the original RHR because,
among other things, the RHR treated one of the five statutory factors
differently than the others by requiring states to consider the degree
of visibility improvement from imposing BART on a group of sources
rather than on a source-specific basis.\34\ The D.C. Circuit concluded
that such a requirement could force states to apply BART controls at
sources without evidence that the individual sources contributed to
visibility impairment at a Class I area, which encroached on states'
primary authority under the regional haze provisions to determine which
individual sources are subject to BART and what BART controls are
appropriate for each source.\35\ Therefore, the court vacated the
visibility improvement part of the original RHR as contrary to the
statute.\36\ Contrary to some commenters' suggestions, however, the
American Corn Growers decision did not address EPA's authority to
reject a state's BART determinations for failure to conform to the CAA
and the RHR.
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    \34\ 291 F.3d 1, 5-9 (D.C. Cir. 2002).
    \35\ Id., pages 7-8.
    \36\ EPA revised the RHR to address the court's decision in
American Corn Growers at the same time as we promulgated the BART
Guidelines. 70 FR 39104 (July 6, 2005). The revised RHR and the
Guidelines were upheld by the D.C. Circuit in Utility Air Regulatory
Group v. EPA, 471 F.3d 1333 (D.C. Cir. 2006).
---------------------------------------------------------------------------

    Commenters also cite Luminant Generation v. EPA \37\ and Texas v.
EPA.\38\ Neither of these cases involves BART or the CAA's regional
haze provisions. Rather, they involved EPA's disapprovals of SIP
revisions involving Texas's minor new source review (NSR) program. As
noted by the Luminant court, ``because `the Act includes no specifics
regarding the structure or functioning of minor NSR programs' and
because the implementing regulations are `very general [,] . . . SIP-
approved minor NSR programs can vary quite widely from State to State.'
'' \39\ By contrast, Regional Haze SIPs are subject to detailed
requirements set forth in CAA sections 169A and the RHR. While in
Luminant and Texas, the Fifth Circuit found that EPA had failed to tie
its disapproval to any requirement of the CAA or EPA's implementing
regulations,\40\ in this case our partial disapproval is based on the
SIP's failure to comply with CAA sections 110(a)(2) and 169A, as
implemented through the RHR.\41\
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    \37\ 675 F.3d 917, 921 (5th Cir. 2012).
    \38\ 690 F.3d 670 (5th Cir. 2012).
    \39\ 675 F.3d at 922 (citing 74 FR 51418, 51421 (Oct. 6, 2009).
    \40\ Id. at 924, 929; 690 F.3d at 679, 682, 686.
    \41\ In particular, as discussed further in our proposals and
elsewhere in this rule, our partial disapproval is based on the
following provisions of 40 CFR 51.308: (d)(1)(i)(A), (d)(1)(ii),
(d)(3)(ii), (d)(3)(v)(C), d)(3)(v)(F), (e)(1)(ii)(A), (e)(1)(ii)(C),
(e)(1)(iv), and (e)(1)(v).
---------------------------------------------------------------------------

    The other CAA cases cited by commenters, Train v. NRDC, Union
Electric v. EPA and Montana Sulphur and Chemical v. EPA, all pertain to
EPA's role in reviewing nonattainment SIPs (i.e., SIPs designed to
ensure attainment of the NAAQS). Both Train and Union Electric were
decided prior to Congress's adoption of the visibility protection
requirements of CAA section 169A and 169B in 1977 and 1990
respectively, and EPA's adoption of the RHR in 1999. Nonetheless, in
both cases, the Supreme Court recognized the basic principle that EPA
must review SIPs for compliance with the requirements of CAA section
110(a)(2).\42\
---------------------------------------------------------------------------

    \42\ See Train, 421 U.S. 60, 79 (``Under Sec.  110(a)(2), the
Agency is required to approve a state plan which provides for the
timely attainment and subsequent maintenance of ambient air
standards, and which also satisfies that section's other general
requirements. The Act gives the Agency no authority to question the
wisdom of a State's choices of emission limitations if they are part
of a plan which satisfies the standards of section 110(a)(2) . . .''
(emphasis added)); Union Electric, 427 U.S. 246, 250 (``Each State
is given wide discretion in formulating its plan, and the Act
provides that the Administrator `shall approve' the proposed plan if
it has been adopted after public notice and hearing and if it meets
eight specified criteria [in section 110(a)(2)]'' (emphasis added)).

---------------------------------------------------------------------------

    As part of the 1977 Amendments to the CAA, Congress added to
section 110(a)(2) requirements that SIPs (1) meet the newly enacted
visibility protection requirements of Part C of Title I of the Act and
(2) prohibit stationary source emissions that interfere with other
states' required visibility protection measures.\43\ As noted above,
these visibility protection requirements include the obligation for
SIPs to ``contain such emission limits, schedules of compliance and
other measures as may be necessary to make reasonable progress'' toward
elimination of man-made visibility impairment at Class I areas,
including implementation of BART.\44\ Section 169A further specifies
five factors that must be considered in determining BART and four
factors that must be considered in determining reasonable progress.\45\
The RHR was promulgated pursuant to these requirements and sets forth
the specific criteria that all RH SIPs must meet in order to fulfill
these requirements. Thus, to the extent that Train and Union Electric
are relevant to RH SIPs, they support the principle that EPA must
ensure that RH SIPs adequately address the requirements of 110(a)(2),
including the visibility protection requirements of CAA section 169A,
as implemented through EPA's visibility protection regulations,
including the RHR.
---------------------------------------------------------------------------

    \43\ PL 95-95, 91 Stat 685 (HR 6161) section 108(b) (August 7,
1977) (codified at CAA section 110(a)(2)(J), 42 U.S.C.
7410(a)(2)(J)). In addition, as part of the 1990 amendments to the
CAA, Congress added to section 110(a)(2) a requirement that SIPs
``include enforceable emission limitations and other control
measures, means, or techniques . . . as well as schedules and
timetables for compliance, as may be necessary or appropriate to
meet the applicable requirements of this Act.'' Public Law 101-549,
104 Stat 2399 sec. 101(b) (November 15 1990) (codified at CAA
section 110(a)(2)(A), 42 U.S.C. 7410(a)(2)(A)). As explained in our
notice of proposed rulemaking and elsewhere in this document, the
Arizona RH SIP does not include such enforceable limitations or
schedules for compliance.
    \44\ 42 U.S.C. 7491(b)(2).
    \45\ 42 U.S.C. 7491(g)(1) and (2).
---------------------------------------------------------------------------

    The Ninth Circuit's decision in Montana Sulphur, which rejected a
challenge to EPA's issuance of a SIP call, partial disapproval of a SIP
and promulgation of a partial FIP for the State of Montana,\46\ also
reinforces the importance of EPA's oversight role under the CAA. In
upholding EPA's partial disapproval, the court recognized that EPA's
role in reviewing of SIPs is not limited to a ministerial review of
state decisions, but involves the exercise of technical expertise and
judgment.\47\ Here, as in Montana Sulphur, EPA's partial disapproval
results from our determination that the SIP failed to meet all of the
applicable statutory and regulatory criteria. Our findings regarding
the specific shortcomings of the Arizona RH SIP are set out in detail
in our proposals and elsewhere in this final rule.
---------------------------------------------------------------------------

    \46\ 666 F.3d 1174 (9th Cir. 2012).
    \47\ Id. at 1189.
---------------------------------------------------------------------------

b. EPA's Schedule to Act on the Arizona RH SIP
    Comment: One commenter (CalPortland) asserted that EPA has not
given Arizona and affected stakeholders sufficient opportunity to
address EPA's concerns with the Arizona RH SIP. While acknowledging
that EPA has tried to address this problem by extending the comment
deadline and delaying publication of a FIP until after it takes final
action on the SIP, the commenter asserted that these two actions are
not legally or practically sufficient to provide due process for
affected entities such as the commenter.
    According to the commenter, EPA has asserted that it must act now
given its finding that Arizona failed to submit a complete 309 SIP, but
EPA has made no such finding with respect to the State's Section 308
SIP. On this basis, the commenter concluded that unless EPA has the
authority (which it has not claimed or identified) to adopt a FIP under
a different regulatory provision than the SIP submitted by the State,
under CAA section 110(c)(1)(B) EPA's deadline to adopt a Section 308
FIP will be July 15, 2015. CalPortland concluded that the best approach
would be to seek further revisions to the third-party consent decree so
that the State and affected stakeholders have a full and fair
opportunity to participate in the SIP process, and EPA has the
necessary time to fully and fairly consider the Arizona RH SIP.
    Response: We do not agree that the State has been given
insufficient time to address our concerns with the Arizona RH SIP or
that the timing of our action raises any due process concerns. All RH
SIPs, whether adopted pursuant to section 308 or section 309 of the
RHR, were due on December 17, 2007. As explained in section II.B of
this document, Arizona had submitted a partial SIP under Section 309 in
2003 and 2004, but never re-submitted the SIP in response to the 2006
RHR amendments to include provisions to address stationary source
emissions under 40 CFR 51.309(d)(4) or reasonable progress for eight of
the State's Class I areas under 40 CFR 51.309(g).\48\ On January 15,
2009, EPA found that 37 states, including Arizona, had failed to make
all or part of the required SIP submissions to address regional haze
and explained that this finding triggered a two-year ``FIP clock.''
\49\ Specifically, we found that Arizona had failed to submit a SIP
addressing 40 CFR 51.309(d)(4) and (g).\50\
---------------------------------------------------------------------------

    \48\ Letter from Stephen A. Owens, ADEQ, to Wayne Nastri, EPA
(December 24, 2008). We have included a more detailed history of
Arizona's submissions under 309 in the docket for this action.
    \49\ 74 FR 2392 (``2009 Finding'').
    \50\ Id. at 2393.
---------------------------------------------------------------------------

    At the time of our finding of failure to submit in 2009, EPA
anticipated that ADEQ would submit a SIP revision covering 309(d)(4)
and 309(g), which would enable EPA to fully approve ADEQ's 309 SIP as
meeting all of the requirements of the RHR, thus ending the FIP clock.
As it turned out, ADEQ did not submit a 309 SIP revision, but instead
decided to develop a 308 SIP, which it submitted to EPA in February
2011. Arizona's decision to change from a 309 SIP to a 308 SIP did not
nullify EPA's prior finding of failure to submit, nor did it reset the
resulting two-year FIP clock under CAA section 110(c). As noted above,
December 17, 2007, was the final deadline for states to submit a
complete RH SIP under 308 or 309. Accordingly, our January 2009 Finding
covered both 308 SIPs and 309 SIPs. The fact that the 2009 Finding
reflected Arizona's decision to submit 309 SIP in lieu of a 308 SIP
does not relieve the State of its obligation to fulfill all of the
requirements of the RHR (whether under section 308 or section 309) and
does not relieve EPA of our FIP duty in the event that the State did
not meet these requirements.
    As explained above, EPA is subject to a consent decree (CD) that
sets deadlines for us to promulgate a RH FIP and/or approve a RH SIP
action for all of the states for which we missed the statutory deadline
under CAA section 110(c). In Arizona's case, we repeatedly sought
extensions to the CD in order to have sufficient time to adequately
address all of the requirements of the RHR, though approval of the
Arizona RH SIP wherever possible and promulgation of a FIP where
necessary. Had we not agreed to the deadlines currently reflected in
the CD, we would have had to demonstrate to the court that it would
have been impossible to comply with the Plaintiff's proposed
schedule.\51\ Contrary to the commenter's

assertion, these deadlines are neither inconsistent with the Act nor
unduly accelerated. As explained above, the FIP clock for addressing
requirements of the RHR ran out in January 2011. The CD effectively
provides EPA with an extension of more than three years to meet that
deadline.
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    \51\ See Sierra Club v. Johnson, 444 F.Supp.2d 46, 58 (D.D.C.
2006) (``this case devolves to a single issue: whether defendant has
met the ``heavy burden'' of demonstrating that it would be
impossible to comply with plaintiff's proposed schedule for the
enactment of the remaining standards . . .'').
---------------------------------------------------------------------------

    We also note that, as a practical matter, ADEQ was informed of
EPA's concerns with the 2011 RH SIP well in advance of our December 21,
2012, notice of proposed rulemaking. EPA provided comments on December
2, 2010, to ADEQ regarding the State's proposed version of the 2011 RH
SIP, noting that the SIP ``does not provide a sufficient level of
information and analysis to support its conclusions'' and setting out
specific concerns with ADEQ's BART and RP analyses.\52\ Nonetheless,
when ADEQ submitted the 2011 RH SIP to EPA, the SIP did not contain
revisions to address the majority of these comments.
---------------------------------------------------------------------------

    \52\ Letter from Colleen McKaughan, EPA, to Eric Massey, ADEQ
(December 2, 2010).
---------------------------------------------------------------------------

    With respect to the commenter's concern regarding the burden placed
on regulated entities, we note that today's action does not establish
any new requirements for any sources. If any new requirements were to
apply to CalPortland or any other entity, they would be proposed as
part of a FIP in a future notice-and-comment rulemaking. Finally, we
note that ADEQ has submitted a Supplement that addresses a number of
our proposed disapprovals, and we are approving much of that Supplement
in today's action. Therefore, we do not agree that the State has had
insufficient time to correct its SIP or that the timing of our action
raises any due process concerns.
c. EPA's Final Rule Affecting Three BART Sources
    Comment: One commenter (Apache County) raised issues related to the
BART determination for the Coronado Generating Station promulgated by
EPA in the FIP for Phase 1. The commenter noted that ``[t]hroughout the
coming planning periods, Apache County wishes to be a coordinating
agency and be fully apprised of all actions, hearings, plans, meetings
and outcomes as the process moves forward.''
    Response: While we appreciate the commenter's interest in regional
haze planning, this comment pertains to our rule for Phase 1, which was
finalized on December 5, 2012, and became effective on January 4, 2013.
We encourage the commenter to contact ADEQ in order to engage in
consultation for future planning periods.
d. History of State Submittals and EPA Actions
    Comment: ADEQ objected to EPA's decision to bifurcate its action on
the Arizona RH SIP into two different phases, one for the application
of BART to three of Arizona's major power plants and a second action
for addressing the remaining elements of the SIP. The commenter
indicated that this approach has created problems for the State, as it
might be forced to file two appeals with respect to its SIP, and has
had to address one EPA decision on its SIP without knowing what EPA's
later decision might require. While acknowledging that CAA section
110(k)(3) allows EPA to approve a plan revision in part and disapprove
it in part, ADEQ contended that the language of the section plainly
requires that action to apply to ``the plan revision,'' not to selected
pieces of the revision. ASARCO expressed support for ADEQ's position on
this issue.
    Response: We do not agree that we are required to act on Arizona's
RH SIP in a single rulemaking action. As noted by the commenters, our
action on Arizona's SIP is governed by, CAA section 110(k)(3), which
provides that:

    In the case of any submittal on which the Administrator is
required to act under section 110(k)(2), the Administrator shall
approve such submittal as a whole if it meets all of the applicable
requirements of this chapter. If a portion of the plan revision
meets all the applicable requirements of this chapter, the
Administrator may approve the plan revision in part and disapprove
the plan revision in part. The plan revision shall not be treated as
meeting the requirements of this chapter until the Administrator
approves the entire plan revision as complying with the applicable
requirements of this chapter.\53\
---------------------------------------------------------------------------

    \53\ 42 U.S.C. 7410(k)(3).

We disagree with ADEQ's assertion that this language addresses the
question of whether EPA may consider different elements of a state's
plan in separate notice and comment rulemakings. However, even assuming
that this provision of the Act did limit EPA's ability to act
sequentially on portions of a SIP submission, the provision of 110(k)
that requires EPA to act on a submittal ``as a whole'' applies only if
the submittal meets all of the applicable requirements of the CAA. As
explained in our proposal and elsewhere in this document, we have
determined that the State's plan does not meet all of the applicable
requirements of the CAA. Under these circumstances, we are clearly not
obligated to act on the plan ``as a whole,'' but are given discretion
to act on distinct portions of the plan.\54\
---------------------------------------------------------------------------

    \54\ Hall v. EPA, 273 F.3d 1146, 1159 (9th Cir. 2001) (section
110(k)(3) ``permits EPA to issue `partial approvals,' that is, to
approve the States' SIP revisions in piecemeal fashion'').
---------------------------------------------------------------------------

    We also do not agree that the bifurcation of our action on the
Arizona RH SIP has placed an undue burden on the State. As explained
elsewhere in this document, Arizona's 2011 RH SIP was submitted more
than three years after the regulatory deadline and more than two years
after EPA had found that Arizona had failed to submit a complete RH
SIP. As a result, EPA is legally obligated under CAA section 110(c) to
promulgate a FIP to address all requirements of the RHR that cannot be
addressed through SIP approvals. Initially, we were subject to a court-
ordered deadline of November 15, 2012, for addressing all aspects of
the RHR via SIP approval or FIP promulgation.\55\ We sought, but were
unable to obtain, a negotiated extension of the deadline to address all
of these elements. Rather than trying to meet the original deadline of
November 15, 2012, for all elements of the plan, we agreed to address
BART for three sources by this deadline,\56\ while receiving an
extension of the deadline to address the remaining elements. This
extension provided ADEQ sufficient time to submit the RH SIP
Supplement, which we are partially approving today. Had we not agreed
to bifurcated deadlines, a supplemental SIP submittal would almost
certainly not have been possible.
---------------------------------------------------------------------------

    \55\ See National Parks Conservation Association v. Jackson
(D.D.C. Case 1:11-cv-01548), Docket  21, Partial Consent
Decree (March 30, 2012).
    \56\ Although these BART determinations are part of the overall
RH SIP they are also severable from that plan, since BART
determinations are made on a source-by-source basis and are not
dependent upon other elements of the plan.
---------------------------------------------------------------------------

    Comment: Citing CAA section 110(k)(1)(A) and (B), PCC asserted
that, because EPA did not make a determination that the Arizona RH SIP
failed to meet the minimum criteria within six months after it was
submitted, the SIP was deemed by operation of law to meet the minimum
criteria. The commenter stated that as a result, EPA's proposed
disapproval of the State's reasonable progress analysis is invalid. PCC
added that, if EPA had notified Arizona within the required six-month
timeframe that the 2011 RH SIP was administratively incomplete for
failing to include four-factor analyses for non-BART sources of
NOX, the State would have responded with a supplemental
submittal as envisioned by the Act.
    Response: We agree that Arizona's 2011 RH SIP was deemed
``complete''

by operation of law under CAA section 110(k)(1)(B).\57\ However, this
completeness determination does not remove EPA's legal authority and
obligation under CAA section 110(k)(3) to review the SIP for compliance
with the requirements of the CAA and EPA's implementing
regulations.\58\ The completeness determination simply sets a deadline
for EPA to complete this review and take action on the SIP under CAA
section 110(k)(2).\59\
---------------------------------------------------------------------------

    \57\ 42 U.S.C. 7410(k)(1)(B).
    \58\ 42 U.S.C. 7410(k)(3) (``In the case of any submittal on
which the Administrator is required to act under [110(k)(2)], the
Administrator shall approve such submittal as a whole if it meets
all of the applicable requirements of this chapter. If a portion of
the plan revision meets all the applicable requirements of this
chapter, the Administrator may approve the plan revision in part and
disapprove the plan revision in part.'').
    \59\ 42 U.S.C. 7410(k)(2) (``Within 12 months of a determination
by the Administrator (or a determination deemed by operation of law)
under [110(k)(1)] that a State has submitted a plan or plan revision
. . . that meets the minimum criteria established pursuant to
[110(k)(1)] . . . the Administrator shall act on the submission in
accordance with [110(k)(3)].''
---------------------------------------------------------------------------

    Contrary to the commenter's suggestion, the completeness criteria
that the 2011 RH SIP has been deemed to meet by operation of law, are
administrative and technical in nature and do not include a
comprehensive list of the substantive provisions required for
particular types of SIP revisions.\60\ The substantive regulatory
requirements applicable to Regional Haze SIPs are found at 40 CFR part
51, subpart P. It is these substantive requirements that we must
consider in reviewing the SIP for approvability. Among these is the
requirement that RPGs must be based on an analysis of the compliance,
time necessary for compliance, energy and non-air quality environmental
impacts, and the remaining useful life of potentially affected
sources.\61\ The plan must also include documentation supporting this
analysis.\62\
---------------------------------------------------------------------------

    \60\ See 40 CFR part 51, appendix V.
    \61\ 40 CFR 51.308(d)(1)(i).
    \62\ 40 CFR 51.308(d).
---------------------------------------------------------------------------

 2. EPA's Evaluation of Visibility Conditions in Arizona's Class I
Areas
    Comment: CalPortland commented that EPA has been inconsistent and
selective in its assessment of the State's 2018 emission inventory,
2018 RPGs and 2064 natural visibility conditions. According to the
commenter, EPA proposed to find that the State's 2018 inventory is
adequate, even though EPA mentions that the State's estimates are
incorrect. The commenter asserted that to the extent that the State's
emission inventory estimate did not properly account for the recession,
EPA must determine, or ask Arizona to reassess, estimated emissions for
2018. CalPortland asserted that this is a significant issue because the
extent to which the State overestimated 2018 emissions affects the need
for, and the sufficiency of, any supplemental RP analysis.
    CalPortland also indicated that the extent to which the State
underestimated natural visibility conditions also affects the results
of the State's RP analysis. The commenter stated that EPA's review of
the State's extremely low estimates for natural visibility conditions
is cursory and insufficient, particularly when compared to its review
of the State's RP analysis. The commenter asserted that EPA cannot
disapprove the State's RP analysis without also conducting a thorough
review of the State's natural visibility conditions estimate.
    Response: EPA disagrees with the commenter's assertion that our
proposed actions on the State's 2018 emissions inventory, 2018
visibility projections and estimates of natural visibility conditions
are inconsistent. These three elements of the Arizona RH SIP are
subject to distinct requirements under the RHR, and EPA's actions on
each of these elements are consistent with these requirements.
    With regard to the 2018 emissions inventory, RH SIPs must include
``[a] statewide inventory of emissions of pollutants that are
reasonably anticipated to cause or contribute to visibility impairment
in any mandatory Class I Federal area'' including ``estimates of future
projected emissions.'' \63\ Thus, the RHR does not require exact
precision for future emissions inventories, but rather estimates of
future projected emissions. Arizona's 2018 inventory is sufficiently
accurate to fulfill this requirement.
---------------------------------------------------------------------------

    \63\ 40 CFR 51.308(d)(4)(v).
---------------------------------------------------------------------------

    The commenter correctly noted that both the 2018 emissions
inventory and the natural visibility conditions estimate impact the
determination as to whether the State has met the URP by the end of the
first planning period. However, the commenter appears to misunderstand
the role of the URP under the RHR. The RHR requires that a state
consider four factors when setting RPGs: costs of compliance, time
necessary for compliance, energy and non-air quality environmental
impacts, and the remaining useful life of potentially affected
sources.\64\ This requirement applies to all states with Class I areas,
regardless of whether or not those areas are projected to meet the URP.
The rule does require an additional demonstration based on the four
factors, when the URP is not projected to be met,\65\ but merely
meeting the URP does not exempt the State from having to perform a
four-factor analysis.\66\
---------------------------------------------------------------------------

    \64\ 40 CFR 51.308(d)(1)(i)(A).
    \65\ 40 CFR 51.308(d)(1)(ii).
    \66\ See, e.g. 77 FR 14604, 14621(March 12, 2012) (``The RHR and
EPA's guidance for establishing RPGs do not provide that a State may
forego an analysis of the four statutory factors if modeling
demonstrates that it is expected to meet the URP in 2018 for . . .
its Class I areas.'').
---------------------------------------------------------------------------

    Finally, EPA disagrees with the commenter's assertion that EPA's
review of the State's natural conditions estimate was cursory and
insufficient. The RHR provides that ``[n]atural visibility conditions
must be calculated by estimating the degree of visibility impairment
existing under natural conditions for the most impaired and least
impaired days, based on available monitoring information and
appropriate data analysis techniques.'' \67\ EPA has reviewed the
State's natural conditions estimate in relation to this requirement. As
mentioned in Section VI.B of the December 21, 2012, proposed action,
Arizona used the natural conditions estimates developed by the Western
Regional Air Partnership (WRAP) for the western states. A description
of EPA's thorough review of the WRAP methodology may be found in the
WRAP TSD.\68\
---------------------------------------------------------------------------

    \67\ 40 CFR 51.308(d)(2)(iii).
    \68\ ``Technical Support Document for Technical Products
prepared by the Western Regional Air Partnership in Support of
Western Regional Haze Plans,'' Final, February 2011 (WRAP TSD).
---------------------------------------------------------------------------

    Comment: ADEQ noted that EPA proposed to disapprove the emissions
inventory element of the 2011 RH SIP on the grounds that it does not
include the most recent inventory available and that it is working on a
SIP revision to cure this deficiency.
    Response: EPA acknowledges ADEQ's efforts in submitting a SIP
revision that includes the most recent inventory. That inventory was
submitted to the Agency on May 3, 2013 as part of the Supplement. Our
evaluation of the inventory may be found in our May 20, 2013, proposed
action. We find that the Arizona RH SIP now meets the requirement for
inclusion of the most recent emission inventory.
 3. EPA's Evaluation of Arizona's BART-Eligibility Determinations
a. Cholla Unit 1
    Comment: One commenter (APS) expressed agreement with EPA's
proposal to approve ADEQ's determination that the commenter's Cholla
Unit 1 is not BART-eligible

because it was placed into commercial operation before August 7, 1962.
The commenter attached supporting documentation to the comments.
    Response: We agree that Cholla Unit 1 is not BART-eligible.
b. Sundt Unit 4
    Comment: Two commenters (Earthjustice, NPS) supported EPA's
proposal to disapprove the State's determination that Sundt Unit 4 is
not BART-eligible, arguing that Sundt Unit 4 is BART-eligible despite a
1987 coal-conversion reconstruction because it never underwent New
Source Review/Prevention of Significant Deterioration (NSR/PSD) review
as part of the reconstruction. Earthjustice and NPS further asserted
that Sundt Unit 4 causes and contributes to visibility impairment and
is therefore subject to BART.
    In contrast, TEP and ADEQ argued that Sundt Unit 4 is not BART-
eligible because it was reconstructed in 1987 and the BART Guidelines
specify that ``any emissions unit for which a reconstruction
`commenced' after August 7, 1977, is not BART-eligible.'' \69\ Citing
New Jersey v. EPA,\70\ the commenters asserted that in the context of
the Act, the word ``any'' has an expansive meaning. TEP and ADEQ
further stated that the footnote in the preamble to the BART Guidelines
that EPA cited to support its proposed disapproval simply reflected the
reality that post-1977 source reconstructions in most cases would have
gone through NSR/PSD permitting.\71\ They also contended that while it
is generally true that BART was intended to apply to sources that had
been grandfathered from NSR/PSD permitting requirements, it does not
follow that BART applies to all grandfathered sources.
---------------------------------------------------------------------------

    \69\ Citing 40 CFR part 51, appendix Y, section II.A.2.
    \70\ 517 F.3d 574, 582 (D.C. Cir. 2008).
    \71\ The footnote in the preamble to the BART Guidelines is
located at 70 FR 39111, footnote 9, and stated that ``sources
reconstructed after 1977, which reconstruction had gone through NSR/
PSD permitting, are not BART-eligible.'' EPA cited this footnote in
the preamble for the present action at 77 FR 75722.
---------------------------------------------------------------------------

    TEP also noted that, while Appendix Y is not binding on Arizona
with respect to Sundt Unit 4, EPA encouraged states to follow the BART
Guidelines. TEP asserted that it is arbitrary and capricious for EPA to
claim it can ignore the BART Guidelines in reviewing a particular SIP,
given that the BART Guidelines are the means by which EPA intends to
ensure that consistency is maintained across the states.
    Response: We do not agree with ADEQ and TEP that we ignored the
BART Guidelines in finding Sundt Unit 4 to be BART-eligible. On the
contrary, we carefully considered the BART Guidelines' statement that,
``any emissions unit for which a reconstruction `commenced' after
August 7, 1977, is not BART-eligible.'' \72\ We further noted that:
---------------------------------------------------------------------------

    \72\ BART Guidelines Sec.  II.A.2.

    This language in the Guidelines, read in isolation, seems to
indicate that any reconstruction commenced after August 7, 1977
exempts a source from BART eligibility. However, the BART Guidelines
are not binding with respect to TEP Sundt Unit 4 because it is not
part of a fossil fuel-fired electric generating plant with a total
generating capacity in excess of 750 MW. The Guidelines still
provide important guidance, but must be considered in the context of
the relevant statutory and regulatory provisions, none of which even
refer to such an exemption for post-1977 reconstructions.\73\
---------------------------------------------------------------------------

    \73\ Memorandum to Docket Regarding TEP Sundt Unit 4--BART
Eligibility (Nov. 21, 2011) [hereinafter ``Sundt Memorandum] at 4
(internal citations omitted).

Therefore, we considered the BART Guidelines in conjunction with the
applicable statutory and regulatory requirements. Based on our review
---------------------------------------------------------------------------
of these requirements, we found that:

    . . . given that the Guidelines are not mandatory for TEP Sundt,
and that no binding statutory or regulatory provision provides for
such a post-1977 reconstruction exemption, it is appropriate to read
this exemption narrowly. An interpretation of ``BART-eligible'' as
including reconstructed sources that did not go through NSR/PSD
permitting is also consistent with Congressional intent and with
EPA's intent in promulgating the relevant regulations. . . .\74\
---------------------------------------------------------------------------

    \74\ Id. at 5.

We are not persuaded by the commenters' assertions that we should read
the reconstruction exemption more broadly because the relevant sentence
in the BART Guidelines uses the word ``any.'' While we agree that the
word ``any'' generally has an expansive meaning, this expansiveness
applies with equal force to the regulatory definition of ``existing
stationary facility'' as ``any of the following stationary sources of
air pollutants, including any reconstructed source, which was not in
operation prior to August 7, 1962, and was in existence on August 7,
1977 . . .'' \75\ The use of the word ``any'' modifying both
``stationary source'' and ``reconstructed source'' indicates that EPA
intended to include all such sources within the definition of
``existing stationary facility'' (and hence the definition of ``BART-
eligible source''). To the extent that the reconstruction exemption
provided by the BART Guidelines is inconsistent with this definition,
it is the regulatory definition, not the BART Guidelines, which is
binding on states and EPA.
---------------------------------------------------------------------------

    \75\ 40 CFR 51.301 (emphasis added). As noted in the Sundt
Memorandum, the ``reconstruction'' provision of the definition was
intended ``to ensure that sources reconstructed between 1962 and
1977 were included in the definition of BART-eligible sources.
Neither the text nor the preamble to this regulation refers to an
exemption for sources reconstructed after August 7, 1977.
---------------------------------------------------------------------------

    The BART Guidelines must also be read in the context of
Congressional intent with regard to the visibility requirements of the
CAA and EPA's visibility regulations. When EPA promulgated our initial
visibility regulations in 1980, we explained our view that ``a source
either is new (i.e., subject to PSD) or existing (subject to BART) and
that it cannot be neither.'' \76\ Consistent with this interpretation,
we defined the term `in existence' for purposes of visibility
protection, ``to assure, as Congress intended, that a major stationary
source be subject to BART under [CAA section] 169A as an existing
source, or to PSD as a new source.'' \77\ Similarly, when EPA
promulgated the BART Guidelines, we noted that ``sources reconstructed
after 1977, which reconstruction had gone through NSR/PSD permitting,
are not BART-eligible.'' We read this statement to mean that EPA
intended for the reconstruction exemption to apply only to sources that
went through NSR/PSD permitting. Like the Guidelines themselves, this
preamble language is not binding with respect to TEP Sundt, but it
still provides important guidance as to how EPA interprets the
applicable statutory and regulatory provisions. If EPA had intended for
the reconstruction exemption to apply to all sources reconstructed
after 1977, there would have been no reason to include the clause
``which reconstruction had gone through NSR/PSD permitting.''
---------------------------------------------------------------------------

    \76\ Summary of Comments and Responses on the May 22, 1980,
Proposed Regulations for Visibility Protection for Federal Class I
Areas, page 225.
    \77\ Id.
---------------------------------------------------------------------------

    Thus, Congress did not intend and EPA does not read the RHR or BART
as allowing a source to use reconstruction as a way to circumvent both
BART and PSD review and thereby not address the source's effect on
visibility in any fashion. Accordingly, while we acknowledge that the
BART Guidelines provide an exemption from BART-eligibility for sources
reconstructed after August 7, 1977, we find that this reconstruction
exemption does not apply to Sundt Unit 4. Therefore, we are finalizing
our disapproval of ADEQ's

determination that Sundt Unit 4 is not BART-eligible. Since our action
today is limited to the Arizona RH SIP, we are not making a
determination on whether TEP Sundt Unit 4 is subject to BART. We expect
to address this issue in a partial FIP, which will be the subject of a
future rulemaking.
    Comment: Two commenters (Earthjustice and NPS) who assert that
Sundt Unit 4 is subject to BART provided comments on appropriate BART
controls.
    Response: We have not proposed BART determinations for any
pollutants for Sundt Unit 4, but proposed disapproval of the State's
finding that Sundt Unit 4 is not BART-eligible. We acknowledge the
information provided by the commenters, and will examine it, along with
similar information provided by other commenters on this issue, as we
work toward developing and proposing a FIP for those elements of the
Arizona RH SIP that we do not approve.
c. Hayden Smelter
    Comment: Earthjustice requested that EPA analyze the BART
eligibility of all the emission units at the Hayden Smelter and support
its independent analysis with documents demonstrating when the
smelter's units began operations. The analysis should include all
available operating records for the relevant time periods and all CAA
construction and operating permits issued to the smelter. The commenter
also requested that EPA post all relevant documentation to the docket
and allow the public to comment on EPA's determination.
    Response: ADEQ relied upon a combination of information contained
in the current Title V permit, with additional information provided by
the facility, to make its determination regarding which units
constitute the BART-eligible source. Based upon our review of the
information provided by the facility \78\ as well as our review of the
Title V permit, we consider ADEQ's determination regarding BART-
eligible units to be reasonable.\79\ ADEQ included information revising
the scope of BART-eligible sources at the Hayden Smelter as part of the
Arizona RH SIP Supplement submitted on May 3, 2013. We proposed to
approve this determination in our May 20, 2013 notice of proposed
rulemaking on the SIP supplement, and are finalizing that proposed
approval in today's action.
---------------------------------------------------------------------------

    \78\ See Docket Item H-09, which contains the 1948 purchase
order for Converter No. 2.
    \79\ See ADEQ Title V Permit 10042, Attachment C ``Equipment
List'', which contains equipment installation dates.
---------------------------------------------------------------------------

d. Miami Smelter
    Comment: FMMI asserted that EPA did not properly identify the BART-
eligible emissions units at the Miami Smelter. According to FMMI, the
2011 RH SIP identified the converters, the Remelt Vessel and the acid
plant as potentially BART-eligible, while Table 11 in the proposal
preamble incorrectly listed ``Converters 1-5, Anode Furnace, Shaft
Furnace, Fugitives'' as BART-eligible.
    FMMI also stated that, based on an independent review of its
records, the Remelt CVessel should not be considered BART-eligible
because it commenced operations before 1962. Although the estimated
SO2 emissions from the Remelt Vessel are less than two tons
per year and therefore relatively insignificant, the commenter
requested that the EPA remove the Remelt Vessel as part of the
necessary corrections to the emissions units that comprise the Miami
Smelter BART-eligible source.
    Response: The Arizona RH SIP Supplement submitted on May 3, 2013,
included this revision to the list of units comprising the BART-
eligible source at the FMMI Miami Smelter. In our May 20, 2013 proposed
rulemaking on the Supplement, we proposed approval of this element. As
part of today's action, we are finalizing our proposed approval of the
revised set of BART-eligible units.
4. EPA's Evaluation of Arizona's Subject-to-BART Analyses and
Determinations
a. Contribution Threshold
    Comment: Six commenters stated that EPA should approve ADEQ's use
of the 0.5 dv threshold as proposed. Commenters emphasized the
discretionary nature of the threshold selection and noted that EPA has
approved other states' use of a 0.5 dv threshold. Some of the
commenters also contended that EPA's discussion of the BART-eligible
sources in proximity to Class I areas makes clear that there is no
basis for choosing a threshold lower than 0.5 dv because lower
thresholds would subject at most one or two additional sources to BART.
    LNA also commented that EPA appears to question the reasonableness
of the threshold because the modeled impacts of the Nelson Lime Plant
were very close to the threshold. The commenter asserted that this is
not a legitimate reason to question the reasonableness of this
threshold or any threshold. The commenter stated that, just as is true
for dispersion modeling to determine compliance with NAAQS and for
stack testing to determine compliance with emission limits, a modeled
impact is either above or below the threshold with no further
assessment as to the degree to which the value is above or below the
threshold.
    Response: Arizona set a 0.5 dv as the threshold for determining
whether a source ``contributes'' to visibility impairment. The BART
Guidelines state that ``[as] a general matter, any threshold that you
use for determining whether a source `contributes' to visibility
impairment should not be higher than 0.5 deciviews.\80\ In setting a
threshold, states should consider the number of BART-eligible sources
within the state and the magnitude of each source's impacts.\81\ ADEQ
did not provide a rationale for choosing 0.5 dv as the threshold for
determining BART eligibility. In our December 21, 2012 proposal, we
examined whether there was any evidence that a lower threshold was
justified.\82\ Based on our analysis of the possible implications of a
lower threshold, we proposed to approve ADEQ's threshold, but sought
comment on whether it the threshold was reasonable.
---------------------------------------------------------------------------

    \80\ BART Guidelines, 40 CFR part 51, appendix Y, section
III.A.1.
    \81\ Id.
    \82\ 77 FR 75722.
---------------------------------------------------------------------------

    In our proposal of December 21, 2012, we noted that the source with
a modeled impact closest to the 0.5 dv threshold is the Nelson Lime
Plant. As explained elsewhere in today's notice, we have determined
that Nelson Lime Plant is subject to BART. Setting the threshold as low
as 0.3 dv would only subject two additional sources to BART and those
sources have their maximum impact at different Class I areas.\83\ Based
on this analysis and the comments received, EPA finds that a subject-
to-BART threshold of 0.5 dv is reasonable. Therefore, we are approving
this threshold.
---------------------------------------------------------------------------

    \83\ Ibid.
---------------------------------------------------------------------------

    Comment: Earthjustice urged EPA to disapprove the 0.5 dv threshold
and set a lower threshold for Arizona in the final rule. Earthjustice
stated that ADEQ's 0.5 dv contribution threshold ignores all cumulative
visibility impacts, with the consequence that (if approved) a source
that is just under the contribution threshold--such as the Nelson Lime
Plant--may have a cumulative visibility impact of over 2 dv or more but
not be subject to BART. The commenter asserts that EPA has rightfully
recognized the importance of analyzing cumulative visibility impacts
when making BART determinations in

Arizona (citing the proposed and final Phase 1 rule). The commenter
asserted that EPA would be acting inconsistently with its prior actions
if it now approves a contribution threshold that isolates the analysis
to one Class I area, while excluding impacts to other Class I areas.
The commenter noted that Arizona did not explain why its 0.5 dv
contribution threshold was reasonable, and concluded on this basis that
EPA owes no deference to the State's unsupported threshold. In
addition, Earthjustice noted that the Arizona RH SIP does not come
close to making reasonable progress toward the 2064 natural visibility
goal, so significant additional emissions reductions are needed.
Finally, Earthjustice questioned the modeling ADEQ relied on in
exempting several BART-eligible sources under the 0.5 dv threshold.
Consequently, the commenter requested that EPA independently evaluate
and rerun ADEQ's modeling.
    Response: EPA shares the commenter's concerns about the importance
of reducing visibility impairment at Arizona's Class I areas and
ensuring that reasonable progress is being made toward eliminating
human-caused impairment at these important areas. However, the BART
requirement is intended to address a particular set of sources that are
of a certain age and ``which may reasonably be anticipated to cause or
contribute to any impairment of visibility'' in any mandatory Class I
area.\84\ A source that is not subject to BART is not necessarily free
from the requirement to reduce emissions. It must be considered in the
RP analysis in this and subsequent planning periods.
---------------------------------------------------------------------------

    \84\ CAA section 169A(b)(2)(A), 42 U.S.C. 7491(b)(2)(A).
---------------------------------------------------------------------------

    As explained in the preceding response, EPA has found that
conditions in Arizona do not justify a threshold lower than 0.5 dv.
Therefore, we are approving the State's decision to set a threshold of
0.5 dv when determining if a source is subject to BART. EPA disagrees
with the commenter's assertion that cumulative impacts must be
considered when determining if a source is subject to BART. A source
might have very small impacts across many Class I areas, but not
``contribute,'' within the meaning of the CAA and RHR, to visibility
impairment at any one of them. Therefore, EPA does not agree that a
cumulative analysis is required for purposes of determining whether
sources are subject to BART.
    By contrast, once a source has been found subject to BART, a
complete five-factor analysis is required. One of the five factors that
must be considered is ``the degree of improvement in visibility which
may reasonably be anticipated to result'' from implementation of
controls. If modeling indicates that controls will significantly
benefit multiple Class I areas, those benefits should be considered as
part of this visibility improvement factor.\85\ However, such an
evaluation of potential visibility benefits is only required once a
source has been found to cause or contribute to visibility impairment
at one or more Class I areas based upon the threshold selected by the
state or EPA in accordance with the BART Guidelines.
---------------------------------------------------------------------------

    \85\ See e.g., 77 FR 72519.
---------------------------------------------------------------------------

    In response to the commenter's request that we independently
evaluate and rerun ADEQ's modeling, we note that, for purposes of
determining whether individual sources were subject-to-BART, ADEQ
relied upon modeling either performed by the by the WRAP Regional
Modeling Center (RMC) or performed in accordance with the modeling
protocol developed by the RMC (``CALMET/CALPUFF Protocol for BART
Exemption Screening Analysis for Class I Areas in the Western United
States''). EPA's review of this protocol may be found in the WRAP
TSD.\86\ The commenter has not raised any specific concerns with this
protocol or its use for BART-eligible sources in Arizona. Accordingly,
it is not necessary or appropriate for EPA to rerun all of the modeling
underlying the Arizona RH SIP. Issues related to the interpretation of
modeling results for specific sources are addressed further below.
---------------------------------------------------------------------------

    \86\ ``Technical Support Document for Technical Products
Prepared by the Western Regional Air Partnership in Support of
Western Regional Haze Plans'', Final, February 2011 (WRAP TSD).
---------------------------------------------------------------------------

b. Nelson Lime Plant
    Comment: Two commenters (Earthjustice and NPS) expressed support
for EPA's proposal to disapprove the State's determination that the
Nelson Lime Plant is not subject to BART. Two other commenters (LNA and
ADEQ) opposed the proposal. The two supportive commenters both argued
that it was inappropriate for the State to use the three-year average
impact rather than the PSD-style method of looking at each year
individually, which would have resulted in a finding of contribution
(0.624 dv in 2003). Earthjustice also asserted that the State's
adoption of a contribution threshold for the regional haze program that
is less stringent than the federal land managers' (FLMs) methodology
under the PSD program is inappropriate and unreasonable because the
regional haze program's primary purpose is to protect and improve
visibility at Class I areas, while visibility impacts at Class I areas
are just one of a much broader array of air quality issues addressed by
the PSD program.
    NPS also conducted modeling, using the same emissions inputs as
were used by the facility in its own modeling, but included condensable
PM10 emissions and used the best 20 percent of days for
natural background. NPS's modeling showed an impact on the 98th
percentile highest day greater than 0.50 dv for both 2002 and 2003. The
NPS results showed an average 98th percentile impact of 0.684 dv, which
is well above the 0.5 dv threshold. Based on this analysis, NPS
asserted that the Nelson Lime Plant is subject to BART.
    In contrast, ADEQ and LNA argued that EPA does not have the
authority to decide which approach to determining BART applicability is
the most reasonable. ADEQ contended that EPA can point to no provision
of the CAA or the applicable rules that is violated by the State's
determination (1) to use three-year averages or (2) not to round up the
0.498 dv impact for the facility. LNA similarly stated that the BART
Guidelines are not binding and that EPA has stated that average and
merged values are both unbiased estimates of the true 98th percentile
impacts. Based on these arguments, LNA asserted that the State's
decision to use the 3-year average of the 98th percentile impacts is
both reasonable and appropriate.
    LNA and ADEQ also argued that the use of the 3-year average for
comparison to the 0.5 dv threshold is justified because it is in line
with other regulatory programs involving compliance thresholds, such as
determining compliance with many NAAQS on the basis of three-year
averages. ADEQ added that the FLM guidance on which EPA relies uses
one-year modeling results as a screening level for further scrutiny of
the applicant's proposal, not a threshold for action.
    Finally, LNA cited recent additional modeling performed by LNA
using the same CALMET meteorological inputs used by EPA Region 9 in
other haze FIP modeling and the revised Interagency Monitoring of
Protected Visual Environments (IMPROVE) equation, and reported that the
resulting three-year average 98th percentile impact at the Grand Canyon
was only 0.424 dv, which is well below the 0.5 dv threshold. This would
make the rounding issue moot.
    Response: As an initial matter, we wish to emphasize that the
purpose of the 0.5 dv threshold is to screen out those BART-eligible
facilities that may not reasonably be anticipated to cause

or contribute to visibility impairment at any single Class I area. The
subject-to-BART determination is not a decision to require air
pollution controls; it is a screening step that states may take to
determine if further analysis is required.\87\
---------------------------------------------------------------------------

    \87\ Under the BART Guidelines, States are permitted to require
a five-factor BART analysis for all BART-eligible sources without
conducting this initial screening. 40 CFR pt. 51, appendix Y,
section II (``Once you have compiled your list of BART-eligible
sources, you need to determine whether (1) to make BART
determinations for all of them or (2) to consider exempting some of
them from BART because they may not reasonably be anticipated to
cause or contribute to any visibility impairment in a Class I
area.'').
---------------------------------------------------------------------------

    EPA acknowledges the supportive comments from Earthjustice.
However, as explained above, states are not required to consider
cumulative baseline visibility impacts when determining if a source is
subject to BART. We agree with the State that the maximum impact on the
most affected Class I area is the appropriate parameter to use for
screening out sources that do not cause or contribute to visibility
impairment.
    EPA also acknowledges the additional modeling work completed by the
NPS. We agree that it is appropriate to include condensable PM when
modeling visibility impacts from BART-eligible facilities. The results
provided by the NPS support EPA's conclusion that it is appropriate to
conduct a full BART analysis for this facility. We also agree with the
NPS that the method used by the State (averaging the 98th percentile
impacts of the three years instead of selecting the highest impact), is
not how the threshold is typically applied and is less stringent than
the FLM's preferred approach.
    EPA disagrees with ADEQ's assertion that the modeling for the
Nelson Lime Plant shows that the source is not causing or contributing
to visibility impairment. ADEQ set the threshold at 0.5 dv, a decision
with which EPA agrees for reasons explained in section IV.A.4.a above.
It's unlikely that the modeling could provide a result that is precise
to 1/1000th of a deciview. To say that an estimate of 0.498 dv is
definitively less than 0.5 dv overburdens the modeling results. In
addition, averaging the 98th percentile impacts across the three years
is not the standard approach and is less conservative than the FLM-
recommended approach of selecting the highest impact from among the
annual 98th percentile results.
    It should be noted that EPA is not making a finding that a specific
control technology or any controls at all are required to satisfy BART
in this case. We are finding that further analysis is needed, based on
the fact that the average of the 98th percentile impacts is conceivably
within the margin of error of the results, and that the highest of the
three 98th percentile impacts is above the threshold. We are also
finding that the commenters' arguments in favor of a three-year average
are not persuasive, especially given the screening nature of the
subject-to-BART test. EPA's position is that the highest 98th
percentile impact is more appropriate for this test. EPA disagrees with
ADEQ's characterization of a subject-to-BART determination being a
threshold for action. It is screen to determine if further analysis is
needed. Any regulatory requirements on the source would be the result
of this full BART analysis. The subject-to-BART determination does not
automatically result in additional requirements for the source.
    Regarding LNA's additional modeling, it is not clear what emissions
inputs or natural background conditions were used. EPA cannot evaluate
results without complete information on the inputs. Also, individual
year results were not provided, so it only addresses the rounding
issue, since the single highest year 98th percentile criterion cannot
be evaluated. Given the omission of condensables in the LNA modeling,
and the lack of documentation of the model inputs and outputs, EPA does
not consider LNA's results to be persuasive in showing that the source
clearly does not contribute to visibility impairment.
    Comment: Three commenters (LNA, Earthjustice, and NPS) responded to
EPA's request for comments on whether there are cost-effective
pollution controls for the Nelson Lime Plant. LNA, the owner of the
plant, stated that the plant uses state-of-the-art baghouse controls to
control particulate emissions from both kilns at the plant and that
there are no gaseous emission controls at the plant.
    Earthjustice stated that EPA's partial FIP must include a BART
determination for Nelson Lime Plant. The commenter indicated that lime
plants across the nation have successfully employed various pollution
controls to reduce emissions, including Selective Catalytic Reduction
(SCR) for NOX, wet scrubbers for SO2, and fabric
filters for PM. The commenter opined that many of these controls will
likely be cost-effective at the facility and will result in significant
emissions reductions and visibility benefits compared to the existing
controls.
    NPS requested that, upon finding the Nelson Lime Plant is subject
to BART, EPA should make a complete BART analysis available for public
review and comment.
    Response: EPA acknowledges the information on air pollution
controls provided by LNA and Earthjustice. We plan to provide a
complete BART analysis for review and comment in our upcoming FIP
proposal.
c. Rillito Cement Plant
    Comment: One commenter (CalPortland) agreed with EPA's proposed
approval of the determination that the Rillito Cement Plant does not
contribute to visibility at any Class I area and is therefore not
subject to BART. The commenter noted that the Arizona RH SIP relied on
modeling conducted by WRAP's RMC to determine that the average
visibility impact from Rillito at Saguaro National Park is 0.4 dv
(citing Table 10 in the proposal).
    Response: As shown in Table 10 of our December 21, 2012, proposal,
according to the WRAP RMC BART Modeling Results for Arizona, Kiln 4 at
the Rillito Cement plant has a maximum 98th percentile impact of 0.48
dv at the Saguaro National Monument. This is below the 0.5 dv threshold
that ADEQ used to determine which sources are subject to BART. As
explained in section IV.A.4.a above, we are approving the use of that
threshold. Therefore, we are finalizing our approval of the State's
determination that the Rillito plant is not subject to BART.
d. Hayden Smelter
    Comment: ADEQ agreed that it had erred in applying a 250 tpy
threshold for PM10, and noted that the correct threshold for
PM10 is 15 tpy under 40 CFR 51.308(e)(1)(ii)(C), but
asserted that EPA erred in proposing to apply the 15 tpy threshold to
the aggregate PM10 emissions from all the BART-eligible
sources at the smelter. Citing the definitions of ``BART-eligible
source,'' ``existing stationary source,'' ``stationary source,''
``building, structure or facility,'' and ``installation'' in 40 CFR
51.301, the commenter asserted that each identifiable piece of process
equipment at the Hayden Smelter constitutes a separate BART-eligible
source and the 15 tpy PM10 threshold applies to each such
piece of equipment individually. ADEQ also noted that the aggregate
potential to emit (PTE) for PM10 at the Hayden Smelter is 70
tpy, and therefore the average PTE for each BART-eligible unit is less
than 15 tpy. The commenter asserted that at least some of the BART-
eligible units at the plant must be exempt from BART on this basis.

    Response: We disagree with the commenter's assertion that, at the
Hayden Smelter, the ``BART-eligible source'' can be defined at the
equipment level for the purpose of exempting emission units from BART.
In the Arizona RH SIP Supplement, ADEQ reiterated the position set
forth in this comment. As part of our notice of proposed rulemaking on
May 20, 2013, we explained why this position is inconsistent with the
RHR and proposed to disapprove ADEQ's determination that the Hayden
Smelter is not subject to BART for PM10.\88\ As part of
today's action, we are finalizing our proposed disapproval of this
element from both our proposals dated December 21, 2012, and May 20,
2013.
---------------------------------------------------------------------------

    \88\ 77 FR 29302.
---------------------------------------------------------------------------

    We also note, however, that despite its determination that the
Hayden Smelter is not subject to BART for PM10, ADEQ also
included in its May 3, 2013, Supplement, a PM10 BART
determination for the Hayden Smelter indicating that no additional
controls were required as BART. We proposed to approve this
determination in our May 20, 2013, notice of proposed rulemaking on the
Supplement, and are finalizing that proposed approval in today's
action.
    Comment: One commenter (Earthjustice) agreed with EPA's proposed
disapproval of ADEQ's determination that a BART analysis is not
required at the Hayden Smelter for PM10. Two other
commenters (ADEQ and ASARCO) disagreed with the proposed disapproval.
    Earthjustice pointed out that the State incorrectly exempted this
smelter from BART based on PM10 emissions of less 250 tpy
when the correct exception threshold for PM10 was 15 tpy
once the facility had been found to be BART-eligible and subject to
BART for SO2. In contrast, ADEQ and ASARCO asserted that,
despite the incorrect application of a 250 tpy threshold, the Hayden
Smelter is not subject to BART for PM because its projected visibility
impairment impacts are too low to warrant a BART analysis. ADEQ
contended that a BART determination is not required for every pollutant
emitted in amounts exceeding the exemption levels in 40 CFR
51.308(e)(1)(ii)(C).
    ASARCO added that the CALPUFF model inputs used for the Hayden
Smelter in the WRAP's visibility analysis were the facility's PTE
values rather than high utilization emissions rates as required under
the BART Guidelines. ASARCO therefore recalculated the CALPUFF model
inputs using what the commenter characterized as the approach set forth
in the BART Guidelines and provided the results of its revised
modeling. Based on these results, ASARCO concluded that PM emissions
from the Hayden Smelter are a de minimis contributor to visibility
impairment.
    Response: Based on the visibility results provided by ASARCO, we
agree that the visibility impact of particulate emissions from the
Hayden Smelter is below 0.50 dv. However, under the RHR, the
determination of whether a source causes or contributes to visibility
impairment is not made on a pollutant-by-pollutant basis.\89\ Rather,
as explained in the BART Guidelines, states must ``look at
SO2, NOX, and direct PM emissions in determining
whether sources cause or contribute to visibility impairment . . .''
\90\ As indicated in the Arizona RH SIP, when all of these emissions
are accounted for, the Hayden Smelter has a total visibility impact
greater than 0.50 dv, and is therefore subject to BART.
---------------------------------------------------------------------------

    \89\ See 40 CFR 51.308(e)(1)(ii) (requiring a BART determination
``for each BART-eligible source in the State that emits any air
pollutant which may reasonably be anticipated to cause or contribute
to any impairment of visibility in any mandatory Class I Federal
area.'').
    \90\ 40 CFR part 51, appendix Y, section III. A.2, ``What
Pollutants Do I Need To Consider?'' (emphasis added).
---------------------------------------------------------------------------

    Once a source is determined to be subject to BART, the RHR allows
for the exemption of a specific pollutant from a BART analysis only if
the PTE for that pollutant is below a specified de minimis level.\91\
Although a small pollutant-specific baseline visibility impact may be
informative in determining what control option may be BART, a BART
analysis is still required for any pollutant with a PTE that exceeds
the de minimis threshold at an otherwise subject-to-BART source. As
explained in the preceding response, the PTE for PM10 from
the BART eligible units at the Hayden Smelter exceed the de minimis
threshold of 15 tpy. Therefore, a BART analysis for PM10 is
required.
---------------------------------------------------------------------------

    \91\ 40 CFR 51.308(e)(1)(ii)(C). This provision was promulgated
at the same time as the BART Guidelines. 77 FR 39104, 39156 (July 6,
2005).
---------------------------------------------------------------------------

    Comment: ASARCO agreed with EPA's evaluation that the Hayden
Smelter is not subject to BART for NOX. The commenter
concurred that a BART determination is not needed for NOX
emissions, which according to the commenter are less than 40 tpy.
ASARCO also indicated, based on the modeling analysis presented in the
previous comment, that the Hayden Smelter's visibility impacts from
NOX emissions are at most 0.01 dv and may be effectively
zero. The commenter concluded from this that Hayden's NOX
emissions are not subject to BART because CAA section 169A(g)(2)
mandates that the reviewing agency consider the degree of improvement
in visibility that may reasonably be anticipated from the use of BART.
The commenter also stated that if a BART analysis is undertaken, the
commenter agrees with the conclusion in the State's RH SIP that no
NOX controls are available for primary copper smelting
converter and anode furnace operations; the commenter contended that
this conclusion is as applicable to BART as it was to reasonable
progress goal determination.
    Another commenter (Earthjustice) asserted to the contrary that EPA
should disapprove ADEQ's BART determination and independently determine
whether the Hayden Smelter is subject to BART for NOX. The
commenter stated that there is no discussion in the 2011 RH SIP or the
proposal preamble of why this smelter is not subject to BART for
NOX, which the commenter finds unjustified and unreasonable.
According to the commenter, the Hayden Smelter emits 80 tpy of
NOX based on the same WRAP modeling document relied on by
EPA as the source for NOX emissions data for the Miami
Smelter. Because this is well in excess of the 40 tpy exception
threshold for NOX, the commenter requested that EPA
independently determine whether the Hayden Smelter is subject to BART
for NOX and include a NOX BART determination in
the proposed FIP.
    Response: As part of our proposed rulemaking on December 21, 2012,
we proposed to approve ADEQ's determination that a BART analysis was
not required for NOX at the Hayden Smelter. As noted by
Earthjustice, the total NOX emission rate used by WRAP in
determining the baseline NOX visibility impact was 2.27
grams/second (g/s). This modeled emission rate, when converted to tons/
year based on 8,760 hours/year of operation, equals 78.9 tpy.
    Since this estimate is based on continuous operation of the BART
eligible source at 2.27 g/s, we consider this to be an overly
conservative estimate of NOX PTE given the batch nature of
the operations at the Hayden Smelter. However, in our review of the
Hayden Smelter's current Title V permit and the Arizona RH SIP, we were
unable to identify any physical or operational limitations that would
limit the PTE of the BART-eligible source below the NOX de
minimis threshold of 40 tpy. Although the baseline NOX
visibility impact is below 0.50 dv, we note that, as explained in the
response

to a comment regarding PM10 emissions from the Hayden
Smelter, once a facility is determined to be subject to BART, the RHR
allows for the exemption of specific pollutants from a BART analysis
only if they are below specified de minimis levels.\92\ As a result, we
are today finalizing disapproval of ADEQ's determination that a BART
determination is not required for NOX at the Hayden Smelter.
---------------------------------------------------------------------------

    \92\ 40 CFR 51.308(e)(1)(ii)(C). This provision was promulgated
at the same time as the BART Guidelines. 77 FR 39104, 39156 (July 6,
2005).
---------------------------------------------------------------------------

e. Miami Smelter
    Comment: ADEQ agreed that it had erred in applying a 250 tpy
threshold for NOX, and noted that the correct threshold for
NOX is 40 tpy under 40 CFR 51.308(e)(1)(ii)(C). However,
ADEQ asserted that each BART-eligible unit at the smelter constitutes a
separate BART-eligible source under the RHR and that EPA therefore
erred in proposing to apply the 40 tpy threshold to the aggregate
NOX emissions from all the BART-eligible units at the
smelter. ADEQ also noted that the aggregate PTE for NOX at
the Miami Smelter is 158 tpy, and therefore the average PTE for the
BART-eligible sources is less than 40 tpy. The commenter asserted that
at least some of the BART-eligible sources at the plant must be exempt
from BART on this basis.
    Response: As noted in a previous response to a similar comment
about the ASARCO Hayden Smelter, we disagree with the commenter's
assertion that the ``BART-eligible source'' can be defined at the
equipment-level. When determining if a subject-to-BART source can be
exempted from a BART analysis for a particular pollutant, the total
emissions of that pollutant from all units that comprise the BART-
eligible source must be compared to the de minimis threshold.
    ADEQ reiterated in its RH SIP Supplement submitted on May 3, 2013,
that the Miami Smelter was exempt from a NOX BART
determination. As discussed in our May 20, 2013, notice of proposed
rulemaking on the RH SIP Supplement, we proposed disapproval of this
element. As part of today's action, we are finalizing our proposed
disapproval of this element from both our December 21, 2012, and May
20, 2013, proposals.
    Comment: Earthjustice agreed with EPA's proposed disapproval of the
State's determination that BART is not required for NOX
emissions from the Miami Smelter. Two FMMI and ADEQ took the opposite
position, contending that EPA is mistaken if it based its proposed
disapproval on the position that a BART determination is mandatory for
any emissions of a visibility-impairing pollutant that exceed the
exemption threshold. Instead, the commenters asserted that a BART
determination is required only when the emissions are reasonably
anticipated to cause or contribute to visibility impairment in a Class
I area which, at a modeled impact of 0.11 dv, the commenters asserted
is not the case for NOX emissions from the Miami Smelter.
    Response: Based on the visibility results provided by the
commenters, we agree that the visibility impact of NOX
emissions from the Miami Smelter is below 0.50 dv. However, as
explained in response to a similar comment regarding PM10
emissions from the Hayden Smelter, once a facility is determined to be
subject to BART, the RHR allows for the exemption of specific
pollutants from a BART analysis only if they are below specified de
minimis levels.\93\ Although a small pollutant-specific baseline
visibility impact may be informative in determining what control option
may be BART, a BART analysis is still required for any pollutant that
exceeds the de minimis threshold at an otherwise subject-to-BART
source. Emissions of NOX from the BART-eligible units at
Miami exceed the de minimis threshold of 40 tpy. Therefore, we are
finalizing our proposed disapproval of ADEQ's determination that the
Miami Smelter is exempt from BART for NOX.
---------------------------------------------------------------------------

    \93\ Id.
---------------------------------------------------------------------------

    Comment: FMMI asserted that even if the Miami Smelter is subject to
BART for NOX, the State effectively conducted a streamlined
BART determination in its RP analysis and concluded that existing
controls constitute BART. According to the commenter, the State
recognized that the Miami Smelter holds a PSD permit that contains Best
Available Control Technology (BACT) limits for NOx. FMMI
added that the State considered the costs of compliance, time necessary
for compliance, energy and non-air quality impacts of compliance and
remaining useful life of Arizona's copper smelters, and concluded that
no additional NOX controls were retrofit options for this
source category.
    Response: We partially agree with this comment. We agree with the
commenter's assertion that several elements of ADEQ's RP analysis for
the copper smelters are potentially relevant and could inform a BART
determination. However, neither the 2011 RH SIP nor the Supplement
contained or identified a NOX BART analysis for the Miami
Smelter. As a result, we are not able to approve a streamlined
NOX BART determination of no additional controls.
    Comment: FMMI also included a five-factor NOX BART
analysis in its comments. The commenter indicated that the BACT
analysis for NOX conducted in support of the Miami Smelter's
1997 PSD permit eliminated combustion modifications and selective non-
catalytic reduction (SNCR) due to technical infeasibility and
eliminated SCR based on economic infeasibility (costs of at least
$10,000/ton of NOX reduced).
    Response: In our proposal of December 21, 2012, we did not propose
a NOX BART determination for the Miami Smelter. Rather, we
proposed to disapprove ADEQ's finding that the Miami Smelter was exempt
from a NOX BART determination. We acknowledge the
information provided by the commenters, and will examine it, along with
similar information provided by other commenters on this issue, as we
develop a proposed FIP for those elements of the Arizona RH SIP that we
do not approve.
5. EPA's Evaluation of Arizona's BART Analyses and Determinations
a. BART Determination for Catalyst Paper
    Comment: ADEQ commented that Catalyst Paper has now cancelled the
operating permit for its permanently closed facility. Accordingly, the
commenter stated that there is no reason for EPA to require Catalyst
Paper to notify EPA prior to resuming operation, as proposed. The
commenter added that since the plant has permanently closed, resuming
operation will be treated as the construction of a new plant and will
be subject to NSR, rather than BART. Two other commenters (Earthjustice
and NPS also provided comments regarding the proposed approach to BART
at Catalyst Paper.
    Response: ADEQ submitted as Appendix B to its comments two letters
regarding the Snowflake Mill at Catalyst Paper: a letter from the site
manager seeking termination of the facility's operating permit and a
letter from the ADEQ Air Division Director terminating the permit.\94\
Both letters, as well as

ADEQ's comments describe the plant's closure as ``permanent.'' \95\
Pursuant to long-standing EPA policy, ``reactivation of a permanently
shutdown facility will be treated as operation of a new source for
purposes of PSD review.'' \96\ Consistent with this policy, ADEQ's
comments affirm that reactivation of the Snowflake Mill ``will be
treated as the construction of a new plant and will be subject to new
source review.'' \97\ In addition, as part of the May 3, 2013,
Supplement, ADEQ revised various sections of its plan to clarify that
this facility is permanently closed and that they are therefore not
conducting a BART analysis.
---------------------------------------------------------------------------

    \94\ Letter from John Groothuizen, Site Manager at the Catalyst
Paper Snowflake to Eric Massey, Director Air Quality Division, ADEQ,
Re: Catalyst Paper (Snowflake) Inc Facility Closure, Title V Permit
No. 46898 Termination (December 21, 2012); Letter from Eric Massey,
Director Air Quality Division, ADEQ to John Groothuizen, Site
Manager at the Catalyst Paper Snowflake, Re: Termination of Air
Quality Control Permit No. 46898, Snowflake Paper Mill (Jan. 24,
2013).
    \95\ Id.; ADEQ Comments at page 12.
    \96\ In re Monroe Electric Generating (Petition No. 6-99-2), EPA
Order Partially Granting and Partially Denying Petition for
Objection to Permit at 8 (June 11, 1999).
    \97\ ADEQ Comments at page 12.
---------------------------------------------------------------------------

    In our notice of May 20, 2013, we proposed to approve ADEQ's
decision not to include such an analysis in the SIP.\98\ We did not
receive any adverse comments on that proposal and we are finalizing
that approval today.
---------------------------------------------------------------------------

    \98\ 77 FR 29304.
---------------------------------------------------------------------------

b. BART Analysis and Determination for PM10 at Miami Smelter
    Comment: Earthjustice disagreed with EPA's proposal to approve
ADEQ's streamlined BART analysis for PM at the Miami Smelter, stating
that a full five-factor BART analysis for PM is required. The commenter
noted that the State conducted a streamlined BART analysis for PM based
on the maximum achievable control technology (MACT) standard for
primary copper smelters, which requires various controls limiting PM
emissions as a surrogate for hazardous air pollutants. While conceding
that the BART Guidelines allow, in general, a streamlined BART analysis
if the source is subject to a MACT standard, the commenter asserted
that the BART Guidelines require a full five-factor BART analysis in
circumstances where the MACT standard likely does not represent the
most stringent level of control, such as when new technologies that are
likely cost-effective and more stringent are introduced after the MACT
determination was made.
    Response: We disagree with the commenter's assertion that a full
five-factor BART analysis is required for PM10 at the Miami
Smelter. The BART Guidelines specifically note that ``unless there are
new technologies subsequent to the MACT standards that would lead to
cost-effective increases in the level of control, you may rely on the
MACT standards for purposes of BART.'' \99\ Based on the most recent
Title V permit for the facility, the maximum allowable emission rate
for particulate matter at the acid plant tail gas stack, which
represents emissions from the converters and acid plant, is 87.67
tpy.\100\ Although this emission limit does not precisely apply to the
BART-eligible source, the relatively small quantity of PM10
emissions from the acid plant tail gas stack indicates that large
amounts of additional particulate emission reductions from the BART-
eligible source are not likely. As a result, we did not identify any
control options that ``would lead to cost-effective increases in the
level of control.'' The commenters, similarly, have not identified any
new technologies or any control options that would result in cost-
effective increases in the level of particulate matter control. As a
result, we continue to consider ADEQ's streamlined BART analysis for
PM10 appropriate for the Miami Smelter, and are today
finalizing our proposed approval of this element of the Arizona RH SIP.
---------------------------------------------------------------------------

    \99\ 40 CFR Part 51, Appendix Y, Section IV.C.
    \100\ ADEQ Title V Permit 53592, issued 2012-11-26.
---------------------------------------------------------------------------

c. BART Analyses and Determinations for SO2 at the Hayden
and Miami Smelters
    Comment: One commenter (Earthjustice) supported EPA's proposal to
disapprove ADEQ's BART determination for SO2 at the Hayden
and Miami Smelters, asserting that the streamlined BART determinations
carried out by the State are impermissible under the BART Guidelines.
Other commenters (ADEQ, ASARCO and FMMI) opposed EPA's proposed
disapproval, arguing that ADEQ's analyses were consistent with all
applicable legal requirements and that EPA had not demonstrated that
ADEQ's approach was arbitrary or capricious. ASARCO added that EPA
cannot disapprove the State's BART analysis for the Hayden Smelter on
the basis that it does not comply with the BART Guidelines because the
EPA has expressly stated that the BART Guidelines do not bind the
states for non-electric generating units.
    Response: As an initial matter, we agree that the BART Guidelines
are not binding for sources other than fossil fuel-fired electric
generating plants with a total generating capacity in excess of 750
megawatts.\101\ However, as explained in the preamble to the BART
Guidelines, EPA ``encourage[s] States to follow the guidelines for all
source categories.'' \102\ Moreover, the Arizona RH SIP itself
indicates that ADEQ generally followed the BART Guidelines in
conducting all of its BART analyses.\103\ Therefore, we considered the
BART Guidelines in our review of ADEQ's BART determinations. Where we
found that ADEQ's analyses diverged from the BART Guidelines, we did
not consider this as a cause for disapproval per se, but as an
indication that we needed to perform a more thorough review of the
analyses.
---------------------------------------------------------------------------

    \101\ See 40 CFR part 51, appendix Y, section I.H (``For sources
other than 750 MW power plants . . . States retain the discretion to
adopt approaches that differ from the guidelines.''
    \102\ 70 FR 39104, 39108 (July 6, 2005).
    \103\ See, e.g., Arizona RH SIP, Appendix D at 33-39 (explaining
Arizona's approach to it five-factor analyses and how it corresponds