Partial Approval and Partial Disapproval of Air Quality State Implementation Plans; Arizona; 2012 PM2.5 Infrastructure Requirements

Filed on regulations.gov — full text not in the inline record.

The Center for Biological Diversity would like to add that, although we understand the EPA approved of the Arizona SIP's language regarding "proposed final permits" representing final permits for purposes of new source review under the Clean Air Act (see 80 Fed. Reg. 67,319 (Dec. 2, 2015), that EPA's determination in that proposal was not based on a consideration of the complete language of the SIP and on consideration of the authority provided to EPA to review and object to Class I permits under the SIP and the Clean Air Act. The EPA's determination in that final rule was erroneous and warrants correcting pursuant to the agency's authority under the Clean Air Act. Although a proposed final permit may be subject to state-level appeal, this does not supplant the EPA's authority to object to and potentially require revisions to Class I permits, including provisions of Class I permits that may relate to implementation of Clean Air Act new source review requirements, but that may also relate to implementation of Clean Air Act Title V operating permit requirements. Further, simply because an appeal opportunity may be provided does not mean that an appeal is ripe for review. If EPA objects to the issuance of a Class I permit, then appeal would be premature and potentially unwarranted. Simply because the Arizona Department of Environmental Quality claims there is an appeal opportunity does not mean there is a meaningful appeal opportunity. Additionally, because the Arizona SIP does not require that Class I permits distinguish between Title I and Title V requirements under the Clean Air Act, a proposed final Class I permit cannot authorize construction unless and until the EPA completes its 45-day review and does not object and the Arizona Department of Environmental Quality issues a final permit. Further, in its final 2015 rule, the EPA did not address the ambiguities in the Arizona SIP related to the definitions of "construction" and "operation" as they relate to proposed final permits. It is not clear how the SIP prohibits construction prior to the issuance of a final Class I permit and the SIP is unenforceable in this regard. In spite of EPA's prior approval of the Arizona SIP and its reliance on provisions authorizing construction of new and modified stationary sources of air pollution subject to Class I permitting, this approval was erroneous and must be reassessed. Based on a clear and practical reading of the SIP, EPA must disapprove on this basis.