Rule2022-28272
Air Plan Approval; Arizona; Maricopa County; Power Plants
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 30, 2022
Effective
January 30, 2023
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is taking final action to approve a revision to the Maricopa County Air Quality Department's (MCAQD or County) portion of the Arizona State Implementation Plan (SIP). The revision addresses Arizona's reasonably available control technology (RACT) SIP obligations for the Phoenix- Mesa ozone nonattainment area that is classified as Moderate nonattainment for the 2008 ozone national ambient air quality standards (NAAQS). We are approving a local rule that regulates emissions of oxides of nitrogen (NO<INF>X</INF>) and particulate matter (PM) from power plants under the Clean Air Act (CAA or the Act).
Full Text
<html>
<head>
<title>Federal Register, Volume 87 Issue 250 (Friday, December 30, 2022)</title>
</head>
<body><pre>
[Federal Register Volume 87, Number 250 (Friday, December 30, 2022)]
[Rules and Regulations]
[Pages 80462-80468]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-28272]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2022-0107; FRL-9426-02-R9]
Air Plan Approval; Arizona; Maricopa County; Power Plants
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to approve a revision to the Maricopa County Air Quality
Department's (MCAQD or County) portion of the Arizona State
Implementation Plan (SIP). The revision addresses Arizona's reasonably
available control technology (RACT) SIP obligations for the Phoenix-
Mesa ozone nonattainment area that is classified as Moderate
nonattainment for the 2008 ozone national ambient air quality standards
(NAAQS). We are approving a local rule that regulates emissions of
oxides of nitrogen (NO<INF>X</INF>) and particulate matter (PM) from
power plants under the Clean Air Act (CAA or the Act).
DATES: This rule is effective January 30, 2023.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R09-OAR-2022-0107. All documents in the docket are
listed on the <a href="https://www.regulations.gov">https://www.regulations.gov</a> website. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available through <a href="https://www.regulations.gov">https://www.regulations.gov</a>, or please
contact the person identified in the FOR FURTHER INFORMATION CONTACT
section for additional availability information. If you need assistance
in a language other than English or if you are a person with
disabilities who needs a reasonable accommodation at no cost to you,
please contact the person identified in the FOR FURTHER INFORMATION
CONTACT section.
FOR FURTHER INFORMATION CONTACT: Kevin Gong, EPA Region IX, 75
Hawthorne St., San Francisco, CA 94105. By phone: (415) 972-3073 or by
email at <a href="/cdn-cgi/l/email-protection#5e3931303970353b2837301e3b2e3f70393128"><span class="__cf_email__" data-cfemail="f790989990d99c92819e99b7928796d9909881">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to the EPA.
Table of Contents
I. Proposed Action and Interim Final Determination
II. Public Comments and EPA Responses
III. EPA Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews
I. Proposed Action and Interim Final Determination
On February 8, 2022 (87 FR 7069), the EPA proposed to approve MCAQD
Rule 322 ``Power Plant Operations,'' as amended on June 23, 2021, and
submitted by the Arizona Department of Environmental Quality (ADEQ) to
the EPA on June 30, 2021.\1\ The MCAQD regulates a portion of the
Phoenix-Mesa ozone nonattainment area that is classified as Moderate
for the 2008 8-hour ozone national ambient air quality standard (40 CFR
81.303). Maricopa County's ``Analysis of Reasonably Available Control
Technology For The 2008 8-Hour Ozone National Ambient Air Quality
Standard (NAAQS) State Implementation Plan (RACT SIP),'' adopted
December 5, 2016, submitted June 22, 2017 (the ``2016 RACT SIP''),
found that there were major sources of NO<INF>X</INF> within the
Maricopa County portion of the Phoenix-Mesa ozone nonattainment area
subject to Rule 322. Accordingly, this rule must establish RACT levels
of control for applicable major sources of NO<INF>X</INF>.
---------------------------------------------------------------------------
\1\ In our February 8, 2022 proposed rule, we inadvertently
cited the submittal date for this submittal as June 24, 2021, which
was the date that the letters from the County and State transmitting
these materials were signed. The date that these materials were
received in the EPA's SPeCS for SIPs system was June 30, 2021.
---------------------------------------------------------------------------
Rule 322 regulates emissions from electricity steam generating
units, cogeneration steam units, and turbines. It also includes related
recordkeeping, reporting, and monitoring requirements. The version of
Rule 322 that we are acting on in this rule (i.e., the version adopted
on June 23, 2021, and submitted to the EPA on June 30, 2021) corrects
several deficiencies in a previous version of Rule 322 that was adopted
by MCAQD on November 2, 2016, and submitted to the EPA on June 22,
2017, and that resulted in the EPA's disapproval published in the
Federal Register in February 2020.\2\ The EPA has determined that this
revised version of Rule 322 corrects the deficiencies in the 2017
submitted version related to flawed cost effectiveness analyses and the
lack of enforceable operational restrictions in the rule itself and,
further, that it meets the EPA's criteria for RACT for this source
category.
---------------------------------------------------------------------------
\2\ See EPA Region IX, ``Technical Support Document for Maricopa
County Air Quality Department Rule 322, Power Plant Operations,''
January 2022; 87 FR 7070 (February 8, 2020).
---------------------------------------------------------------------------
We proposed to approve Rule 322 because we determined that it
complies with the relevant CAA requirements in CAA sections 110,
182(b)(2), 182(f), and 193. Our proposed action contains more
information on Rule 322 and our evaluation of the SIP revision. On the
same day, we also made an interim final determination (87 FR 7042) that
the submittal from the ADEQ corrected SIP deficiencies from a previous
submittal, allowing us to defer the imposition of sanctions resulting
from our disapproval of a previously submitted version of Rule 322 (85
FR 43692, July 20, 2020).
II. Public Comments and EPA Responses
The EPA's proposed action provided a 30-day public comment period.
During this period, we received five comments. Four of these comments
were from members of the public and were generally supportive of our
proposed action or were not germane. The fifth comment was submitted by
Air Law for All, Ltd. on behalf of the Center for Biological Diversity
and the Sierra Club (the commenter from here on referred to as ``ALFA''
or ``the commenter'').
Low Use Exemptions and RACT
ALFA asserts that Rule 322's annual operational limits cannot be
used to exempt units from RACT for short-term ozone standards, that
Rule 322's limits on operation are used to ``artificially inflate the
annualized cost-effectiveness of NO<INF>X</INF> controls to justify not
installing RACT-level technology,'' and that Rule 322 uses a long-term
annual average to circumvent the installation of overall RACT level
controls.
We do not agree with the commenter's assertions. As discussed
further below,
[[Page 80463]]
and contrary to the statements in the comment letter, Rule 322
satisfies RACT requirements for NO<INF>X</INF> emissions from power
plants in two ways. First, it includes RACT-level NO<INF>X</INF>
emission limits in section 306 that apply to electric utility steam
generating turbines rated greater than 100 MMBtu/hr and electric
utility stationary gas turbines rated greater than 10 MMBtu/hr.\3\
Second, Rule 322 provides an exemption from the RACT-level
NO<INF>X</INF> emission limit only for emissions units that meet
certain criteria that are set forth in section 104.4. In particular,
for units that operate at or below 10 percent annual capacity factor,
Rule 322 allows an exemption from NO<INF>X</INF> RACT limits only if
the facility demonstrates through an analysis that RACT-level controls
are not economically or technologically feasible. Rule 322's provisions
for low use equipment are an important component of EPA's determination
that Rule 322 satisfies the RACT obligation under the CAA for this
source category.\4\ We note that the EPA has approved rules that exempt
certain units from RACT requirements based on low use in other SIPs.\5\
---------------------------------------------------------------------------
\3\ We note that the limits in the submitted rule are more
stringent than the NO<INF>X</INF> emission limits that are currently
in the SIP. (The current SIP-approved rule was adopted by MCAQD in
2007 and approved by the EPA in 2009. 74 FR 52693 (October 14,
2009).) For example, the current SIP-approved version of Rule 322
does not contain any NO<INF>X</INF> limit for electric utility
stationary gas turbines, whereas the submitted version of Rule 322
establishes a NO<INF>X</INF> limit of 42 ppm for these units, if
they are fired by gaseous fossil fuel, and 65 ppm if they are fired
by liquid fossil fuel. This notice provides additional discussion
comparing the submitted and currently SIP-approved versions of Rule
322 below.
\4\ In the 1992 General Preamble for the Implementation of Title
I of the Clean Air Act Amendments of 1990, EPA stated that ``it is
possible that a state could demonstrate that an existing source in
an area should not be subject to a control technology especially
where such control is unreasonable in light of the area's attainment
needs or infeasible.'' 57 FR 13498, 13541, note 20 (April 16, 1992).
Appendix C4 to the General Preamble for the Implementation of Title
I of the CAA Amendments of 1990 (titled ``RACT Determinations for
Stationary Sources'') further elaborates on this point, clarifying
that ``States may give substantial weight to cost effectiveness in
evaluating the economic feasibility of an emission reduction
technology.'' 82 FR 18070, 18074 (Apr. 28, 1992). Appendix C4 refers
to the General Preamble discussion on particulate matter, but its
discussion on economic feasibility also applies to considerations
for NO<INF>X</INF> RACT emissions controls. That is what the State
has done in this instance; when the facilities operate at or below
10 percent annual capacity factor, there is no requirement to
install RACT because it is not cost effective.
\5\ See, for example: Colorado's 5 CCR 1001-9, Regulation 7,
part E, section II.A.2.a, approved at 86 FR 11125 (February 24,
2021); Massachusetts 310 CMR 7.19, section (1)(d), approved at 85 FR
65236 (October 15, 2020); Ventura County Air Pollution Control
District Rule 74.15.1 section C.2 as low a heat input exemption
approved at 81 FR 50348 (August 1, 2016); Wisconsin's NR 428.21,
section (1)(d) paragraph 2 and section (2)(d) paragraph 2, approved
at 75 FR 64155 (October 19, 2010); Sacramento Metropolitan Air
Quality Management District Rule 411, section 113, approved at 74 FR
20880 (May 6, 2009).
---------------------------------------------------------------------------
Section 104.4 of Rule 322 now allows for equipment that operates at
or below 10 percent of the unit's calendar year annual capacity factor
\6\ to be exempt from NO<INF>X</INF> and CO emissions limitations in
sections 306 and 307 if the equipment meets the criteria specified in
section 104.4(a), (b) and (c).\7\ To qualify for the exemption from the
NO<INF>X</INF> and CO emissions limits in sections 306 and 307, section
104.4(a) requires an owner or operator to submit an analysis to the
MCAQD Control Officer and EPA Administrator demonstrating that
conventional commercially available control technology is not
technically or economically feasible. In addition, section 104.4(b)
requires an owner or operator to submit, within 60 days of MCAQD
approval, an application to modify the equipment's permit to include an
annual heat input limit (i.e., a limit on the amount of fuel that can
be used in the unit annually), and section 104.4(c) specifies that
owners and operators must demonstrate compliance with the heat input
limit by multiplying the higher heating value (expressed in terms of
either MMBtu/mass or MMBtu/volume by fuel use (mass or volume)).
---------------------------------------------------------------------------
\6\ The U.S. Energy Information Administration defines
``capacity factor'' as: ``The ratio of the electrical energy
produced by a generating unit for the period of time considered to
the electrical energy that could have been produced at continuous
full power operation during the same period.'' Available: <a href="https://www.eia.gov/tools/glossary/index.php">https://www.eia.gov/tools/glossary/index.php</a>.
\7\ Equipment that operates at less than 10 percent of its
annual capacity is also subject to provisions in Rule 322 that
require compliance with good combustion practices, particulate
limits, and requirements for recordkeeping and reporting. See e.g.,
Rule 322, sections 301, 302, 303, 304 and 500. A more complete
description of these provisions is included later in this notice.
---------------------------------------------------------------------------
Appendix 12 to Maricopa County's 2021 submittal includes a set of
three analyses of technical feasibility and cost effectiveness (i.e.,
economic feasibility) for thirteen emissions units at four different
facilities owned by Arizona Public Service (APS) and Salt River Project
(SRP).\8\ APS and SRP seek to comply with Rule 322 by operating these
units subject to the 10 percent annual capacity factor limit in section
104.4.\9\ The analyses present available NO<INF>X</INF> control
technologies, including water injection, steam injection, low
NO<INF>X</INF> burners, dry low NO<INF>X</INF> combustion, selective
non-catalytic reduction (SNCR) and selective catalytic reduction
(SCR).\10\ The analyses next determine which available technologies are
technically feasible for the various emissions units. The analyses then
assess the cost effectiveness of the technically feasible options by
considering the capital and annual costs compared to the NO<INF>X</INF>
reductions that would be expected to result from the controls. For this
last step, each analysis assumed that the emissions unit would operate
at 10 percent of its rated capacity.
---------------------------------------------------------------------------
\8\ 2021 Submittal, Appendix 12.
\9\ Besides the thirteen emissions units that seek to comply
with Rule 322 by operating subject to the 10 percent annual capacity
factor limit in section 104.4, there are 40 units that must comply
with the emissions limits in sections 306 and 307. Of the nine
facilities subject to Rule 322, four operate units seeking the low
use exemption from sections 306 and 307 of the rule.
\10\ The range of NO<INF>X</INF> control technologies evaluated
varied according to the specifics of the emissions units. For more
detailed information, see our 2022 TSD, 9-11; 2021 Submittal at 64-
189.
---------------------------------------------------------------------------
It is important to note that the analyses state, for each emissions
unit analyzed, actual operation of each unit was far below ten percent
of capacity. For example, Table 3-2 of the analysis for APS Ocotillo
and West Phoenix power plants presents the capacity factor for each of
the four units analyzed in the document in the years 2015, 2016 and
2017, the most recent three years at the time the analysis was
developed; of the twelve data points, only two units were operated
above 1 percent annual capacity, and eight were below 0.5 percent
annual capacity.\11\ Similarly, the analysis for SRP Agua Fria
generating station's units 1-3 states that the units ``have a very low
utilization, with a typical capacity factor of approximately 5
percent,'' \12\ and the analysis for SRP Agua Fria units 4-6 states
that the annual capacity factor is less than 1 percent.\13\ Moreover,
the analysis for SRP Kyrene units 4-6 states that the units have ``very
low utilization, with a typical capacity factor less than 0.1
percent.'' \14\
---------------------------------------------------------------------------
\11\ 2021 Submittal at 71 (``Reasonably Available Control
Technology (RACT) Analysis for the control of nitrogen oxides
(NO<INF>X</INF>) emission from the Arizona Public Service Ocotillo
and West Phoenix Power Plants'' (October 2018) at 8).
\12\ 2021 Submittal at 106 (``Reasonably Available Control
Technology (RACT) Analysis for the control of nitrogen oxides
(NO<INF>X</INF>) emissions from the Salt River Project Agua Fria
Generating Station'' (July 2020) at 14).
\13\ 2021 Submittal at 167 (``Reasonably Available Control
Technology (RACT) Analysis for the control of nitrogen oxides
(NO<INF>X</INF>) emissions from simple-cycle combustion turbine
generators at the Salt River Project Agua Fria and Kyrene Generating
Stations'' (July 2020) at 15).
\14\ 2021 Submittal at 176, 182; (``Reasonably Available Control
Technology (RACT) Analysis for the control of nitrogen oxides
(NO<INF>X</INF>) emissions from simple-cycle combustion turbine
generators at the Salt River Project Agua Fria and Kyrene Generating
Stations'' (July 2020) at 24, 30.)
---------------------------------------------------------------------------
The fact that actual usage of the emissions units that will be
regulated
[[Page 80464]]
pursuant to the low use exemption has historically been well below the
10 percent capacity factor imposed by the exemption contradicts the
commenter's point that ``the limits on operation are used to
artificially inflate the annualized cost-effectiveness of
NO<INF>X</INF> controls to justify not installing RACT-level
technology.'' Arguably, because the cost effectiveness analyses
conservatively assumed higher levels of operation than actually occur,
the analyses overestimated NO<INF>X</INF> emissions and therefore
overestimated NO<INF>X</INF> reductions that would result from use of
NO<INF>X</INF> control equipment. Because cost effectiveness is
expressed as dollars (capital and operational costs of controls) per
ton of emissions (emissions reductions resulting from the controls), an
overestimation of emissions reductions would effectively make controls
appear more cost effective, not less.
The commenter also points to a 1984 guidance document \15\ to
assert that ``the averaging time for ozone plan emission limitations
should match the standards, that is, should be short term.'' We note,
however, that section 104.4's 10 percent heat input limit differs from
the emission limits addressed in the 1984 guidance in that it is also a
criterion that must be met to qualify for and maintain an exemption
from Rule 322's NO<INF>X</INF> and CO limits. Further, to qualify for
the exemption, section 104.4 also requires sources to submit, for
Control Officer and EPA approval, a RACT analysis that demonstrates
that ``conventional commercially-available control technology is not
technologically and/or economically feasible.'' EPA has long considered
what is technologically and economically feasible in determining RACT
controls.\16\ And, as explained above, the analyses in Appendix 12 of
the 2021 submittal package demonstrate that the installation of RACT
control technologies for units operating at 10 percent of their annual
capacity factors exceeds established cost effectiveness values.
---------------------------------------------------------------------------
\15\ See ``Averaging Times for Compliance with VOC Emission
Limits--SIP Revision Policy,'' (also referred to as the ``O'Connor
Memorandum''). 51 FR 43857 (December 4, 1986). It is conceivable
that this guidance pertains to limits on direct emissions of air
pollutants only, not operational standards. We note that the 1990
Clean Air Act Amendments added the phrase ``work practice or
operational standard'' to the definition of the terms ``emission
limit'' and ``emission standard'' at CAA section 302(k).
\16\ Since the 1970s, EPA has consistently defined ``RACT'' as
the lowest emission limit that a particular source is capable of
meeting by the application of the control technology that is
reasonably available considering technological and economic
feasibility. See December 9, 1976 memorandum from Roger Strelow,
Assistant Administrator for Air and Waste Management, to Regional
Administrators, ``Guidance for Determining Acceptability of SIP
Regulations in Non-Attainment Areas.'' 44 FR 53762 (September 17,
1979).
---------------------------------------------------------------------------
Contrary to the commenter's assertion, section 104.4's annual
capacity limit does not allow sources to ``circumvent the installation
of RACT level controls.'' Rather, as evidenced by the analyses in
Appendix 12 of the 2021 submittal package, sources regulated by Rule
322 appear to understand section 104.4 to require not only a standard
approach to evaluating the cost effectiveness of pollution controls,
but also application of this approach to all emissions units, even
those that are used at one percent (or even lower) of their rated
capacity.\17\
---------------------------------------------------------------------------
\17\ We note further that Rule 322 does not allow
``circumvention'' of RACT by units that do not seek to qualify as
exempt pursuant to section 104.4. Rule 322 applies to electric
utility steam generating units and cogeneration steam generating
units with rated heat input capacity greater than or equal to 100
million Btu/hour. Rule 322 clearly requires any unit that does not
submit to section 104.4's limit on heat input to comply with the
NO<INF>X</INF> and CO limits in sections 306 and 307, which EPA has
determined to be RACT.
---------------------------------------------------------------------------
It is also important to note that units regulated by the low use
provisions in section 104.4 must comply with requirements in section
500, ``Monitoring and Records,'' including section 501.1 that requires
owners and operators to maintain records of days and hours of operation
and monthly fuel usage that will ensure that regulators, members of the
public, and facility owners and operators can determine compliance with
section 104.4's fuel input cap. In addition, the units regulated by the
low use provisions in section 104.4 must still comply with other
provisions in Rule 322, such as particulate matter emissions
limitations (section 301), good combustion practice obligations for
turbines (section 302), opacity limits (section 304), and fuel sulfur
limits (section 305).
We acknowledge the commenter's point that the equipment for which
power generators are seeking an exemption from NO<INF>X</INF> and CO
limits pursuant to section 104.4 are likely operated as peaking units
and are therefore expected to operate primarily during hot summer days
when ozone formation is typically high. The Clean Air Act provides
states with primary responsibility for developing pollution control
strategies discretion to attain the NAAQS. The states also have ``broad
authority to determine the methods and particular control strategies
they will use to achieve the statutory requirements.'' \18\ Because we
find that Rule 322 is consistent with federal standards for RACT, we
believe it is appropriate for the State to use its discretion to allow
these units to operate, even during high ozone periods, as long as the
State can demonstrate attainment with applicable ozone NAAQS. The EPA
has approved the State's attainment demonstration and the associated
reasonably available control measures (RACM) demonstration for the
Phoenix 2008 ozone nonattainment area,\19\ and has determined that this
area attained the 2008 ozone NAAQS by the applicable attainment
date.\20\ The U.S. Court of Appeals for the Ninth Circuit has upheld
both of these actions.\21\ With respect to the 2015 ozone NAAQS, which
is more stringent than the 2008 ozone NAAQS, the EPA has recently
determined that the Phoenix-Mesa nonattainment area failed to attain
the standard by the attainment date for areas classified as Marginal
and therefore it has been reclassified to the next highest
classification, Moderate.\22\ This ``bump up'' action means that the
State of Arizona and MCAQD are subject to CAA section 182(b)(2)'s
requirement to demonstrate RACT and to section 182(b)(1)'s requirement
to submit a plan demonstrating reasonable further progress towards
attainment for the 2015 ozone NAAQS and providing for attainment by the
Moderate area attainment date.
---------------------------------------------------------------------------
\18\ BCCA Appeal Grp. v. EPA, 355 F.3d 817, 822 (5th Cir. 2003)
(as amended on denial of rehearing and rehearing en banc Jan. 8,
2004) (citing Union Elec. Co. v. EPA, 427 U.S. 246, 266 (1976) (``So
long as the national standards are met, the state may select
whatever mix of control devices it desires.'')
\19\ 85 FR 33571 (June 2, 2020).
\20\ 84 FR 60920 (November 12, 2019).
\21\ Bahr v. Regan, 6 F.4th 1059 (9th Cir. 2021) Matusow v.
Wheeler, Case No. 20-72279 (9th Cir. Apr. 21, 2022).
\22\ 87 FR 60897 (October 7, 2022).
---------------------------------------------------------------------------
Discretionary Authority in SIP Actions
ALFA asserts that the EPA's statement that we do not have the
``discretionary authority to address disproportionate human health or
environmental effects with practical, appropriate and legally
permissible methods under Executive Order 12898'' is incorrect, and
that the EPA has the discretion to interpret the requirements of the
Act with regard to SIP submissions, demonstrated by our application of
Agency guidance in interpreting requirements for averaging times in
emission limitations. The commenter further asserts that the EPA does
in fact have the discretionary authority to address impacts to
environmental justice communities in this context.
While the EPA may in certain circumstances have discretion to
[[Page 80465]]
consider environmental justice in implementing the requirements of the
Act, E.O. 12898 does not provide any independent authority for action.
For the reasons described in our proposal, our Technical Support
Document (TSD), and this notice, we have determined that the submittal
satisfies the obligation to implement RACT under sections 110 and 182
of the Act. Under the CAA, the EPA is required to approve a SIP
submission that meets the minimum requirements of the CAA and
applicable federal regulations. Moreover, we note that while we are
approving Rule 322 as meeting RACT under the requirements of the 2008
ozone NAAQS, we are not making any determinations as to whether this
submittal meets requirements applicable to the Phoenix-Mesa
nonattainment area for the 2015 ozone NAAQS.
Although Executive Order 12898 does not provide us with an
independent basis to disapprove the County's SIP submission, we
conducted an environmental justice analysis to provide additional
context and information about this rulemaking to the public. To
identify environmental burdens and susceptible populations in
underserved communities in the areas surrounding units operating under
the low use exemption in Rule 322, we performed a screening analysis
using the EPA's environmental justice screening and mapping tool
(``EJSCREEN'') and the Power Plants and Neighboring Communities mapping
tool (``PPNC'') that includes EJSCREEN data in addition to facility
emissions data collected by the EPA.<SUP>23 24</SUP> We used these
tools to assess the areas within a three-mile radius of the four
facilities operating under the low use provisions of Rule 322. We
selected a three-mile buffer because these facilities on their own have
fairly large geographic footprints, and a three-mile radius was
appropriate to capture potentially impacted communities that may be
located nearby. We focused our analysis of the area on the two
demographic indicators explicitly named in Executive Order 12898, the
area's percentage of people of color and the percentage of low-income
population.\25\ Based on our screening analysis, we found that two of
the four areas had higher percentages for the People of Color indicator
living in the buffer zone than the state average of 45 percent (the
area around the Agua Fria Generating Station reported 60 percent and
the area around the West Phoenix Power Plant reported 91 percent), and
three of the four areas had higher percentages for the Low Income
indicator than the state average of 35 percent (Agua Fria Generating
Station reported 44 percent, Ocotillo Power Plant reported 49 percent,
and West Phoenix Power Plant reported 77 percent). Selected metrics
from that analysis are presented below in Table 1.
---------------------------------------------------------------------------
\23\ U.S. Environmental Protection Agency. ``EJScreen (Version
2.0), 2022.'' Environmental Justice index and Socioeconomic
Indicator tables, and EJSCREEN American Community Survey (ACS)
Summary reports 2015-2019 data. Retrieved August 12, 2022 from
<a href="https://www.epa.gov/ejscreen">https://www.epa.gov/ejscreen</a>.
\24\ U.S. Environmental Protection Agency. 2022. ``Power Plants
and Neighboring Communities (PPNC), 2020'' Washington, DC: Office of
Atmospheric Programs, Clean Air Markets Division. Available from
EPA's PPNC website: <a href="https://www.epa.gov/airmarkets/power-plants-and-neighboring-communities">https://www.epa.gov/airmarkets/power-plants-and-neighboring-communities</a>. The reports generated for this analysis are
available in the rulemaking docket.
\25\ Executive Order 12898 focuses explicitly on these two
demographic indicators, which it refers to as ``minority
populations'' and ``low-income populations.'' EJSCREEN reports
environmental indicators (e.g., air toxics cancer risk, lead paint
exposure, and traffic proximity and volume) and demographic
indicators (e.g., people of color, low income, and linguistically
isolated populations). Depending on the indicator, a community that
scores highly for an indicator may have a higher percentage of its
population within a demographic group or a higher average exposure
or proximity to an environmental health hazard compared to the
state, region, or national average. EJSCREEN also reports EJ
indexes, which are combinations of a single environmental indicator
with the EJSCREEN Demographic Index. For additional information
about environmental and demographic indicators and EJ indexes
reported by EJSCREEN, see EPA, ``EJSCREEN Environmental Justice
Mapping and Screening Tool--EJSCREEN Technical Documentation,''
section 2, September 2019.
\26\ Estimates from EJSCREEN, 2015-2019 American Community
Survey, U.S. Census.
Table 1--Selected Environmental Justice Demographic Indicators
----------------------------------------------------------------------------------------------------------------
Agua Fria Kyrene
generating generating Ocotillo West Phoenix
station station power plant power plant
----------------------------------------------------------------------------------------------------------------
Estimated population in 3-mile buffer zone \26\. 154,817 130,571 145,867 107,697
People of Color (AZ average 45%)................ 60% 43% 46% 91%
Low Income (AZ average 35%)..................... 44% 26% 49% 77%
----------------------------------------------------------------------------------------------------------------
As discussed in the EPA's ``Technical Guidance for Assessing
Environmental Justice in Regulatory Analysis,'' people of color and
low-income populations often experience greater exposure and disease
burdens than the general population, which can increase their
susceptibility to adverse health effects from environmental
stressors.\27\ Underserved communities can also experience reduced
access to health care, nutritional, and fitness resources, further
increasing their susceptibility. We also note that the Phoenix-Mesa
area is currently designated as non-attainment for the 2008 and 2015
ozone standards.\28\ Areas in nonattainment typically face other air
pollution and environmental health challenges, which may especially
impact these underserved communities. Such impacts are seen in the
EJSCREEN data for these areas, including indexes for fine particulate
matter exposure, diesel particulate matter, air toxics risks,
underground storage tank, Superfund site and hazardous waste facility
proximity, all being higher than the State's average. Because the APS
West Phoenix Power Plant and the SRP Agua Fria Generating Station are
both located near communities, which the EJSCREEN data shows is higher
than the state's average for EJ demographic indicators that may
indicate the presence of underserved communities, it is possible that
these facilities contribute to disproportionate pollution impacts.
---------------------------------------------------------------------------
\27\ U.S. EPA, ``Technical Guidance for Assessing Environmental
Justice in Regulatory Analysis,'' section 4, June 2016.
\28\ The EPA determined that the Phoenix-Mesa attained the 2008
ozone NAAQS by the Moderate area attainment date of July 20, 2018.
84 FR 60920 (November 12, 2019). This determination is not a
redesignation to attainment and therefore it does not relieve the
State from its obligations to implement RACT for this standard.
---------------------------------------------------------------------------
Even though some of the facilities that are operating units under
Rule 322's partial exemption for low use units are located in or near
underserved communities, approval of this rule into the SIP strengthens
the Arizona SIP by incorporating more stringent requirements for power
plants operating in Maricopa County into the SIP, making them
enforceable by the EPA and the public. For example, the version of Rule
322 we are approving into the SIP contains more stringent
NO<INF>X</INF> limits for more emissions units compared to the version
of Rule 322 currently in the SIP, which EPA approved in 2009. The
[[Page 80466]]
2007 version of Rule 322 does not impose NO<INF>X</INF> limits for
stationary gas turbines at all, whereas the submitted version of Rule
322 limits NO<INF>X</INF> emissions to 42 ppm and 65 ppm when burning
gaseous and liquid fossil fuels, respectively.\29\ Moreover, the 2007
version of Rule 322 only limits NO<INF>X</INF> for steam generating
units for which construction commenced between May 30, 1972, and May
10, 1996; as a result, the 2007 version of Rule 322 does not regulate
at least some of the units covered by the low use exemption in the 2021
version of Rule 322.\30\ The 2021 version of the rule now requires all
units, regardless of construction date or type, to comply with the RACT
limits or demonstrate compliance with the low use provisions by
limiting annual operations. Also, the units operating under the
submitted version of Rule 322's partial exemption for low use units
must still comply with the updated operating requirements controlling
sulfur, particulate matter, and opacity, even if they are exempt from
the RACT NO<INF>X</INF> and CO limits. Therefore, we expect that this
action and the codification of Rule 322's more stringent requirements
into the federally enforceable SIP will contribute to reduced
environmental and health impacts on all populations in Maricopa County,
including people of color and low-income populations in Maricopa
County. For these reasons, this action is not expected to have a
disproportionately high or adverse human health or environmental effect
on a particular group of people.
---------------------------------------------------------------------------
\29\ The submitted rule also expands the applicability of CO
limits to each electric utility or cogeneration steam generating
unit with a rated heat input capacity greater than or equal to 100
MMBtu per hour, and to each electric utility stationary gas turbine
with a rated heat input capacity at peak load greater than or equal
to 10 MMBtu per hour. The 2007 version of Rule 322 limited CO
emissions to the same equipment, but only if construction commenced
prior to May 10, 1996.
\30\ Per the RACT analyses submitted with the 2021 version of
Rule 322, the APS Ocotillo and West Phoenix low use units were
constructed at some point in 1972 and at least three of the SRP Agua
Fria low use units were constructed well before 1972.
---------------------------------------------------------------------------
The EPA remains committed to working with the State of Arizona and
Maricopa County to ensure that the ozone attainment requirements for
this area satisfy applicable CAA requirements and thereby protect all
populations in the area, including minority, low income, and indigenous
populations, from disproportionately high or adverse air pollution
impacts.
III. EPA Action
No comments were submitted that change our assessment of the rule
as described in our proposed action. Therefore, as authorized in
section 110(k)(3) of the Act, the EPA is fully approving Rule 322 into
the Arizona SIP and, pursuant to the requirements in section 104.4 of
Rule 322, also approving the RACT cost effectiveness demonstrations in
Appendix 12 of the State's submittal for the facilities seeking to
operate under the low use partial exemption. The June 23, 2021 version
of Rule 322 will replace the October 17, 2007 version of this rule in
the SIP. As a result of this action, the sanctions that were deferred
in our interim final determination are now rescinded, and a federal
implementation plan to resolve the deficiency is no longer required
under section 110(c) of the Act. We will also delete our previous
disapproval codified at 40 CFR 52.133 (Rules and regulations) since a
subsequent version of Rule 322 is being approved.
Relatedly, we are also making a correction in 40 CFR 52.124. In our
final rule of August 23, 2021 (86 FR 46986), approving revisions to the
Pinal County Air Quality District's RACT demonstrations for the 2008 8-
hour ozone NAAQS, we should have deleted only the codified language
noting our previous disapproval of portions of Pinal County's
demonstration. However, we instead inadvertently deleted all the
codified disapprovals for RACT demonstrations in Arizona. This action
will correct that error and revise 40 CFR 52.124 to recodify the
disapprovals for Maricopa County's RACT demonstration. This is relevant
to our action here because the previous disapproval for Rule 322 was a
contributing factor to our overall disapproval on Maricopa County's
demonstration for implementing RACT at major sources of NO<INF>X</INF>.
This language should remain in 40 CFR 52.124 until a future action
addresses the remaining deficiencies that prevent us from fully
approving Maricopa County's demonstration of this requirement.
The EPA has determined that this correction falls under the ``good
cause'' exemption in section 553(b)(3)(B) of the Administrative
Procedure Act (APA) which, upon finding ``good cause,'' authorizes
agencies to dispense with public participation where public notice and
comment procedures are impracticable, unnecessary, or contrary to the
public interest. Public notice and comment for this action is
unnecessary because the underlying rule for which this correcting
amendment has been prepared was already subject to a 30-day comment
period, and this action merely adds amendatory instructions that
reverts the errors made in the underlying rule. Further, this action is
consistent with the purpose and rationale of the final rule, which is
corrected herein. Because this action does not change the EPA's
analyses or overall actions, no purpose would be served by additional
public notice and comment. Consequently, additional public notice and
comment are unnecessary.
IV. Incorporation by Reference
In this rule, the EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with requirements of 1 CFR
51.5, the EPA is finalizing the incorporation by reference of Maricopa
County Rule 322 as described in Section I of this preamble and as set
forth below in the amendments to 40 CFR part 52. Therefore, these
materials have been approved by the EPA for inclusion in the SIP, have
been incorporated by reference by the EPA into that plan, are fully
federally enforceable under sections 110 and 113 of the CAA as of the
effective date of the final rulemaking of the EPA's approval, and will
be incorporated by reference in the next update to the SIP
compilation.\31\ The EPA has made, and will continue to make, these
documents available through <a href="http://www.regulations.gov">www.regulations.gov</a> and at the EPA Region
IX Office (please contact the person identified in the FOR FURTHER
INFORMATION CONTACT section of this preamble for more information).
---------------------------------------------------------------------------
\31\ 62 FR 27968 (May 22, 1997).
---------------------------------------------------------------------------
V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, the EPA's role is to approve state choices,
provided that they meet the minimum criteria of the Act. Accordingly,
this action approves a County rule as meeting federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
<bullet> Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
<bullet> Does not impose an information collection burden under the
provisions
[[Page 80467]]
of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
<bullet> Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
<bullet> Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
<bullet> Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001); and
<bullet> Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act.
The state did not evaluate environmental justice considerations as
part of its SIP submittal. The EPA performed an environmental justice
analysis for the purpose of providing additional context and
information about this rulemaking to the public, not as a basis of the
final action. Due to the nature of the action being taken here, this
action is expected to have a neutral to positive impact on the air
quality of the affected area. Thus, there is no information in the
record inconsistent with the stated goals of Executive Order 12898 (59
FR 7629, February 16, 1994) of achieving environmental justice for
people of color, low-income populations, and indigenous peoples.
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where the EPA or an Indian tribe
has demonstrated that a tribe has jurisdiction. In those areas of
Indian country, the rule does not have tribal implications and will not
impose substantial direct costs on tribal governments or preempt tribal
law as specified by Executive Order 13175 (65 FR 67249, November 9,
2000).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. The EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by February 28, 2023. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Nitrogen
oxides, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides.
Dated: December 21, 2022.
Martha Guzman Aceves,
Regional Administrator, Region IX.
Part 52, Chapter I, Title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for Part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart D--Arizona
0
2. In Sec. 52.120, in paragraph (c), amend Table 4 by revising the
entry for ``Rule 322,'' and in paragraph (e), amend Table 1 by adding
an entry for ``Revision of Rule 322 of the Maricopa County Air
Pollution Control Regulations, Appendix 12: RACT Analyses Submitted to
the Maricopa County Air Quality Department from the Arizona Public
Service and the Salt River Project, only'' after the entry for
``Reasonably Available Control Technology (RACT) Analysis, Negative
Declaration and Rules Adoption'' to read as follows:
Sec. 52.120 Identification of plan.
* * * * *
(c) * * *
Table 4 to Paragraph (c)--EPA-Approved Maricopa County Air Pollution Control Regulations
----------------------------------------------------------------------------------------------------------------
State effective Additional
County citation Title/subject date EPA approval date explanation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Rule 322...................... Power Plant June 23, 2021... [INSERT Federal Submitted on June 30,
Operations. Register CITATION], 2021 under an
December 30, 2022. attached letter
dated June 24, 2021.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
(e) * * *
[[Page 80468]]
Table 1--EPA-Approved Non-Regulatory and Quasi-Regulatory Measures
----------------------------------------------------------------------------------------------------------------
Applicable geographic
Name of SIP provision or nonattainment area State submittal EPA approval Explanation
or title/subject date date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Revision of Rule 322 of the Maricopa County June 30, 2021... [INSERT Federal Submitted on June 30,
Maricopa County Air Pollution portion of Phoenix- Register 2021 under a letter
Control Regulations, Appendix Mesa nonattainment CITATION], dated June 24, 2021,
12: RACT Analyses Submitted area for 2008 8-hour December 30, as a part of the SIP
to the Maricopa County Air ozone NAAQS. 2022.. revision for
Quality Department from the Demonstrations for Maricopa County Rule
Arizona Public Service and Equipment Under Rule 322. Required
the Salt River Project, only. 322, section 104.4, demonstrations from
paragraph b. facilities that
operate equipment
seeking partial
exemption from the
rule through
compliance with
annual heat input
limits.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
0
3. Amend Sec. 52.124 by adding paragraph (b) to read as follows.
Sec. 52.124 Part D disapproval.
* * * * *
(b) The following Reasonably Available Control Technology (RACT)
determinations are disapproved because they do not meet the
requirements of Part D of the Clean Air Act.
(1) [Reserved]
(2) Maricopa County Air Quality Department. (i) RACT determinations
for major sources of NO<INF>X</INF>, and CTG source categories for
Aerospace Coating and Industrial Adhesives (``National Emission
Standards for Hazardous Air Pollutants for Source Categories: Aerospace
Manufacturing and Rework'' (59 FR 29216), ``Control of Volatile Organic
Compound Emissions from Coating Operations at Aerospace Manufacturing
and Rework Operations'' (EPA-453/R-97-004), and ``Control Techniques
Guidelines for Miscellaneous Industrial Adhesives'' (EPA-453/R-08-
005)), in the submittal titled ``Analysis of Reasonably Available
Control Technology for the 2008 8-Hour Ozone National Ambient Air
Quality Standard (NAAQS) State Implementation Plan (RACT SIP),'' dated
December 5, 2016, as adopted on May 24, 2017 and submitted on June 22,
2017.
(ii) [Reserved]
* * * * *
Sec. 52.133 [Amended]
0
4. Amend Sec. 52.133 by removing and reserving paragraph (h).
[FR Doc. 2022-28272 Filed 12-29-22; 8:45 am]
BILLING CODE 6560-50-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on December 30, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.