The U.S. Environmental Protection Agency has made final its Feb. 5 proposed partial disapproval of a State Implementation Plan (SIP) submitted by the state of Arizona to address regional haze compliance for coal-fired capacity in the state.
In a notice of this final decision to be published in the Aug. 8 Federal Register, EPA said it is disapproving in part a December 2008 submittal by the Arizona Department of Environmental Quality (ADEQ) in which the state refiled materials previously submitted in December 2003 and December 2004 (collectively “Arizona’s 309 Regional Haze SIP”).
“These SIP submittals were intended to address the regional haze requirements of the CAA and EPA’s implementing regulations at 40 CFR 51.309 for four of Arizona’s mandatory Class I areas,” the agency noted. “Our proposed rule includes additional information about these requirements and Arizona’s SIP submittals.”
ADEQ commented that EPA had no authority to adopt a Federal Implementation Plan (FIP) in its Dec. 5, 2012, final rule that established best available retrofit technology (BART) for three coal-fired power plants in Arizona. ADEQ argued that EPA’s January 2009 finding of failure to submit, which provided the basis for EPA’s FIP authority, was invalid because Arizona submitted 309 SIPs in 2003 and 2004, both of which were deemed complete by operation of law. ADEQ also asserted that if EPA did have FIP authority, then it would extend only to the requirements of 40 CFR 51.309(d)(4) and 51.309(g), not to the requirement for BART.
EPA responded that that the Arizona comment is not germane in any way to the present rulemaking, in which EPA is finalizing its partial disapproval of Arizona’s 309 Regional Haze SIP for failure to comply with federal requirements. “Rather, ADEQ’s comment appears to be a collateral challenge to EPA’s Finding and other rulemakings EPA has conducted involving regional haze and BART requirements in Arizona,” EPA said. “We note that ADEQ’s objection to EPA’s Finding comes nearly three years after the statutory deadline for challenging that action has passed. Under the CAA, any party seeking judicial review of EPA’s Finding was required to file a petition for review within 60 days of publication of the Finding in the Federal Register, or by no later than March 16, 2009. No party, including Arizona, filed such a petition.”
EPA said it also disagrees with the substance of ADEQ’s comment. As ADEQ noted in its comment, EPA’s authority to issue a FIP arises from one of three triggering events: a finding that a state has failed to make a required SIP submittal; a finding that a SIP submittal does not satisfy the minimum criteria of CAA section 110(k)(1)(A); or the disapproval, in whole or in part, of a SIP submittal.
“Contrary to ADEQ’s assertion, the fact that Arizona’s 2003 and 2004 SIP submittals were deemed ‘complete’ by operation of law has no bearing on EPA’s Finding, which was premised on the fact that Arizona failed to submit SIP provisions to satisfy the requirements of 40 CFR 51.309(d)(4) and 51.309(g),” EPA wrote. “The State’s 2003 and 2004 SIP submittals could not have addressed 40 CFR 51.309(d)(4) and 51.309(g) because the former requirement was modified in response to the D.C. Circuit’s 2005 decision in CEED, while the latter requirement did not even exist until EPA finalized our revisions to 40 CFR 51.309 in 2006.15 ADEQ acknowledged this fact in its December 24, 2008, re-submittal letter, which plainly stated that Arizona’s 309 Regional Haze SIP addresses neither 40 CFR 51.309(d)(4) nor 51.309(g).”
EPA added: “Additionally, we disagree with ADEQ’s contention that EPA’s FIP authority is somehow limited to the requirements of 40 CFR 51.309(d)(4) and 51.309(g). Section 309 is an alternative route to compliance with the regional haze rule that can only be implemented at the election of the state. The regional haze rule clearly explains that if a state chooses to fulfill its regional haze obligation under 40 CFR 51.309, but fails to submit the SIP provisions necessary to satisfy that obligation, then the state remains subject to the requirements of 40 CFR 51.308. Thus, when Arizona failed to submit SIP provisions addressing the requirements of 40 CFR 51.309(d)(4) and 51.309(g) by the December 17, 2007, deadline, Arizona remained subject to the general requirements of 40 CFR 51.308. In other words, the regulatory gap left by Arizona’s failure to submit a comprehensive 309 SIP was a duty to submit a 308 SIP. As a result, EPA’s Finding triggered a duty on behalf of EPA to issue a FIP that satisfied the requirements of 40 CFR 51.308, which include the requirement to establish BART for certain stationary sources.”
EPA noted that Arizona is appealing a federal district court’s entry and modification of a consent decree that set the deadlines for EPA action on regional haze plans for Arizona. “If Arizona’s challenge ultimately results in any changes to the scope of EPA’s existing FIP duty with respect to regional haze in Arizona, then today’s action will trigger a two-year FIP clock for any additional regional haze requirements that are not subject to the previous FIP clock,” EPA said.