# Approval and Disapproval of Air Quality State Implementation Plans; Arizona; Regional Haze and Interstate Transport Requirements > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2013-18022 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** July 30, 2013 - **Citation:** 78 FR 46142 ## Text 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. 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 r9azreghaze@epa.gov. 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 NO X 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 PM 2.5 mean or refer to fine particulate matter with an aerodynamic diameter of less than 2.5 micrometers. (25) The initials PM 10 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 SO 2 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. 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. 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. 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. 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 (NO X ), and that the Hayden Smelter is exempt from a BART analysis for coarse particulate matter (PM 10 ). 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 NO X at Hayden Smelter and for PM 10 at Miami Smelter. We proposed to disapprove Arizona's conclusion that a BART determination is not required for PM 10 at the Hayden Smelter and for NO X at the Miami Smelter. We proposed alternatively to approve or disapprove the State's BART determination for sulfur dioxide (SO 2 ) 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 PM 10 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 NO X, SO 2 or volatile organic compounds (VOCs) or on point sources of SO 2 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 NO X , and area sources of NO X and SO 2 . 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 NO X or area sources of NO X and SO 2 . 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 (PM 2.5 ) in 1997, 5 and the revised PM 2.5 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 PM 2.5 NAAQS (2007 Transport SIP) 7 and in 2009 for the 2006 PM 2.5 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. 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 PM 2.5 NAAQS, 1997 PM 2.5 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 PM 2.5 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. 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 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 EPA Actions Proposed rule Final rule Phase 1—BART determinations for Apache, Cholla and Coronado July 2, 2012 1 November 15, 2012 2 . Phase 2—All remaining elements of the Arizona RH SIP December 8, 2012 3 July 15, 2013. Phase 3—FIP for disapproved elements of the Arizona RH SIP (if required) September 6, 2013 February 6, 2014. 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. 12 40 CFR 51.309(a). 13 71 FR 28270 and 72 FR 25973. 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. 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. 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. 18 74 FR 2392. 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 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. 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 NO X 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 SO 2 and the Miami Smelter is subject to BART for SO 2 and PM 10. 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 PM 10 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 NO X 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 PM 10 and that the Hayden and Miami Smelters are not subject to BART for NO X. We also are disapproving the State's BART determinations for SO 2 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 (NO X and SO 2 ), and the Miami Smelter (NO X and SO 2 ). 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 SO 2 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 NO X and SO 2 and point sources of NO X. 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 PM 2.5, and 2006 PM 2.5 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: 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 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). 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). 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. 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). 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. 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 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 § 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. 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 NO X, 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 § 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 SO 2 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 PM 10 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 NO X , wet scrubbers for SO 2 , 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 PM 10 , and noted that the correct threshold for PM 10 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 PM 10 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 PM 10 threshold applies to each such piece of equipment individually. ADEQ also noted that the aggregate potential to emit (PTE) for PM 10 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 PM 10. 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 PM 10 , ADEQ also included in its May 3, 2013, Supplement, a PM 10 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 PM 10. 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 PM 10 emissions of less 250 tpy when the correct exception threshold for PM 10 was 15 tpy once the facility had been found to be BART-eligible and subject to BART for SO 2 . 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 SO 2 , NO X , 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 PM 10 from the BART eligible units at the Hayden Smelter exceed the de minimis threshold of 15 tpy. Therefore, a BART analysis for PM 10 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 NO X. The commenter concurred that a BART determination is not needed for NO X 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 NO X emissions are at most 0.01 dv and may be effectively zero. The commenter concluded from this that Hayden's NO X 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 NO X 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 NO X . 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 NO X , which the commenter finds unjustified and unreasonable. According to the commenter, the Hayden Smelter emits 80 tpy of NO X based on the same WRAP modeling document relied on by EPA as the source for NO X emissions data for the Miami Smelter. Because this is well in excess of the 40 tpy exception threshold for NO X , the commenter requested that EPA independently determine whether the Hayden Smelter is subject to BART for NO X and include a NO X 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 NO X at the Hayden Smelter. As noted by Earthjustice, the total NO X emission rate used by WRAP in determining the baseline NO X 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 NO X 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 NO X de minimis threshold of 40 tpy. Although the baseline NO X visibility impact is below 0.50 dv, we note that, as explained in the response to a comment regarding PM 10 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 NO X 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 NO X, and noted that the correct threshold for NO X 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 NO X emissions from all the BART-eligible units at the smelter. ADEQ also noted that the aggregate PTE for NO X 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 NO X 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 NO X 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 NO X emissions from the Miami Smelter. Response: Based on the visibility results provided by the commenters, we agree that the visibility impact of NO X emissions from the Miami Smelter is below 0.50 dv. However, as explained in response to a similar comment regarding PM 10 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 NO X 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 NO X. 93 Id. Comment: FMMI asserted that even if the Miami Smelter is subject to BART for NO X, 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 NO x. 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 NO X 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 NO X BART analysis for the Miami Smelter. As a result, we are not able to approve a streamlined NO X BART determination of no additional controls. Comment: FMMI also included a five-factor NO X BART analysis in its comments. The commenter indicated that the BACT analysis for NO X 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 NO X reduced). Response: In our proposal of December 21, 2012, we did not propose a NO X BART determination for the Miami Smelter. Rather, we proposed to disapprove ADEQ's finding that the Miami Smelter was exempt from a NO X 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 PM 10 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 PM 10 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 PM 10 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 PM 10 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 SO 2 at the Hayden and Miami Smelters Comment: One commenter (Earthjustice) supported EPA's proposal to disapprove ADEQ's BART determination for SO 2 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 to the process set out in the Guidelines). The CAA and the RHR require BART to be determined based upon an analysis of five factors: (1) The costs of compliance; (2) the energy and non-air quality environmental impacts of compliance; (3) any existing pollution control technology in use at the source; (4) the remaining useful life of the source; and (5) the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology. 104 ADEQ did not conduct such a five-factor analysis for SO 2 at either of the copper smelters, but instead chose to conduct “streamlined” analyses relying on the 1974 New Source Performance Standard (NSPS) for primary copper smelters at 40 CFR part 60, subpart P. While the BART Guidelines allow for streamlined analyses under specific circumstances (e.g., for VOC and PM sources subject to MACT standards), they also note that “we do not believe that technology determinations from the 1970s or early 1980s, including new source performance standards (NSPS), should be considered to represent best control for existing sources, as best control levels for recent plant retrofits are more stringent than these older levels.” 105 The Guidelines also explain that “[a]nalysis of the BART factors could result in the selection of a NSPS level of control, but you should reach this conclusion only after considering the full range of control options.” 106 Accordingly, ADEQ's streamlined analysis based on the NSPS of 1974 is inconsistent with the general statutory and regulatory requirement for a complete five-factor analysis and with the BART Guidelines' admonition that NSPS should be selected as BART only after a complete five-factor analysis. 104 CAA section 169A(g)(2), 40 CFR 51.308(e)(1)(ii)(A). The RHR also allows states to adopt an emissions trading program or other alternative program instead of source-specific BART controls, as long as the alternative provides greater reasonable progress towards improving visibility than BART. 40 CFR 51.308(e)(2). However, this “better than BART” approach was not employed by ADEQ and is not relevant here. 105 40 CFR part 51, appendix Y, section IV.C. 106 Id. section IV.D.1., n. 13 (emphasis added). Moreover, even if a streamlined analysis were appropriate in this instance, ADEQ should have considered whether any new technologies had become available subsequent to the NSPS. 107 As part of its streamlined analysis, ADEQ did examine the RBLC 108 and found that no emission limitation or air pollution control devices have been approved for copper smelters for sulfur oxides since the installation of the double-contact acid plant in 1974. However, in order to determine whether new technologies have become available, ADEQ should have looked more broadly at other sources of information. 109 In particular, acid plant catalyst vendor information and industry trade journals indicate that a number of advances in acid plant catalyst technology have been made since promulgation of Subpart P in 1974, including development of cesium-promoted catalyst as well as certain enhancements to standard potassium-promoted catalysts. 110 111 112 These improvements to acid plant catalysts have the ability to increase conversion rates of SO 2 to SO 3 in the acid plant, resulting in [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2013-18022. Public record. Not legal advice.