Rule2021-15667
Finding of Failure To Submit a State Implementation Plan To Meet the 1987 24-Hour PM10
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 23, 2021
Effective
August 23, 2021
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is making a finding that Arizona has not submitted a required revision to the Arizona State Implementation Plan (SIP) for the West Pinal County nonattainment area addressing Clean Air Act (CAA) requirements for a Moderate area attainment plan, related rules, and other analyses needed to attain the 1987 24-hour particulate matter (PM<INF>10</INF>) National Ambient Air Quality Standard (NAAQS) by December 31, 2018. Under the CAA, Arizona was required to submit a moderate area PM<INF>10</INF> attainment plan for West Pinal County no later than January 2, 2014, and the State did so on December 21, 2015. On May 17, 2021, Arizona withdrew its Moderate area attainment plan submission. This finding establishes a deadline for EPA to promulgate a Federal Implementation Plan (FIP) to address these CAA requirements 24 months from the effective date of this finding. The CAA also provides for the imposition of sanctions if Arizona does not submit the required attainment plan within timeframes specified by the CAA.
Full Text
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<title>Federal Register, Volume 86 Issue 139 (Friday, July 23, 2021)</title>
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[Federal Register Volume 86, Number 139 (Friday, July 23, 2021)]
[Rules and Regulations]
[Pages 38928-38931]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-15667]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2021-0373; FRL-8715-02-R9]
Finding of Failure To Submit a State Implementation Plan To Meet
the 1987 24-Hour PM10 Standard; Moderate Area Requirements; West Pinal
County; Arizona
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is making a finding
that Arizona has not submitted a required revision to the Arizona State
Implementation Plan (SIP) for the West Pinal County nonattainment area
addressing Clean Air Act (CAA) requirements for a Moderate area
attainment plan, related rules, and other analyses needed to attain the
1987 24-hour particulate matter (PM<INF>10</INF>) National Ambient Air
Quality Standard (NAAQS) by December 31, 2018. Under the CAA, Arizona
was required to submit a moderate area PM<INF>10</INF> attainment plan
for West Pinal County no later than January 2, 2014, and the State did
so on December 21, 2015. On May 17, 2021, Arizona withdrew its Moderate
area attainment plan submission. This finding establishes a deadline
for EPA to promulgate a Federal Implementation Plan (FIP) to address
these CAA requirements 24 months from the effective date of this
finding. The CAA also provides for the imposition of sanctions if
Arizona does not submit the required attainment plan within timeframes
specified by the CAA.
DATES: This finding is effective on August 23, 2021.
ADDRESSES: The EPA has established a docket for this action identified
by the following identification number, EPA-R09-OAR-2021-0373.
Generally, documents in the docket for this action are available
electronically at the <a href="http://www.regulations.gov">www.regulations.gov</a> website. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available through <a href="https://www.regulations.gov">https://www.regulations.gov</a>, or please
contact the person identified in the FOR FURTHER INFORMATION CONTACT
section for additional availability information. If you need assistance
in a language other than English or if you are a person with
disabilities who needs a reasonable accommodation at no cost to you,
please contact the person identified in the FOR FURTHER INFORMATION
CONTACT section.
FOR FURTHER INFORMATION CONTACT: Jerry Wamsley, EPA Region IX, (415)
947-4111, <a href="/cdn-cgi/l/email-protection#e59284889689809ccb8f8097979ca5809584cb828a93"><span class="__cf_email__" data-cfemail="bbccdad6c8d7dec295d1dec9c9c2fbdecbda95dcd4cd">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Section 553 of the Administrative Procedure
Act (APA), 5 U.S.C. 553(b)(B), provides that an agency may issue a rule
without providing notice and an opportunity for public comment when
that agency finds for good cause that notice and public procedure are
impracticable, unnecessary, or contrary to the public interest. The EPA
has determined that there is good cause for issuing this finding
without prior proposal and opportunity for comment because there is
little or no judgment involved for the EPA to make a finding of failure
to submit SIPs or elements of SIPs required by the CAA, where states
have not submitted a required SIP revision by the date specified by
statute, made incomplete submissions, or, as in this case, withdrawn an
existing submission. In such circumstances, EPA finds that notice and
public procedures are unnecessary and that this constitutes good cause
under 5 U.S.C. 553(b)(B).
Throughout this document, ``we,'' ``us,'' and ``our'' refer to the
EPA.
Table of Contents
I. Background and Statutory Requirements
A. The PM10 NAAQS and the EPA's Nonattainment Redesignation of
West Pinal County
B. CAA Moderate PM<INF>10</INF> Nonattainment Area Requirements
for West Pinal County
C. Consequences of This Finding That Arizona Failed To Submit a
PM<INF>10</INF> Implementation Plan for West Pinal County
II. Final Action
III. Statutory and Executive Order Reviews
I. Background and Statutory Requirements
A. The PM<INF>10</INF> NAAQS and the EPA's Nonattainment Redesignation
of West Pinal County
The EPA sets the NAAQS for certain ambient air pollutants at levels
required to protect public health and welfare. Particulate matter with
an aerodynamic diameter less than or equal to a nominal ten
micrometers, or PM<INF>10</INF>, is one of the ambient air pollutants
for which the EPA has established health-based standards. The EPA
revised the NAAQS (or ``standards'') for particulate matter on July 1,
1987, replacing the standards for total suspended particulates (TSP
[[Page 38929]]
less than 30 microns in diameter) with new standards applying only to
particulate matter up to 10 microns in diameter.\1\ An area attains the
24-hour PM<INF>10</INF> standard of 150 micrograms per cubic meter
([mu]g/m\3\) when the expected number of days per calendar year,
averaged over a three year period, with a 24-hour concentration
exceeding the standard (referred to as an exceedance), is equal to or
less than one.\2\ On January 13, 2013, the EPA announced that it was
again retaining the 24-hour PM<INF>10</INF> NAAQS as a 24-hour standard
of 150 [mu]g/m\3\.\3\
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\1\ 53 FR 24634 (July 1, 1987). The 1987 PM<INF>10</INF>
standards included a 24-hour (150 micrograms per cubic meter ([mu]g/
m\3\)) and an annual standard (50 [mu]g/m\3\). In 2006, the EPA
revoked the annual standard; see 71 FR 61144 (October 17, 2006) and
40 CFR 50.6.
\2\ An exceedance is defined as a daily value that is above the
level of the 24-hour standard, 150 [mu]g/m\3\, after rounding to the
nearest 10 [mu]g/m\3\ (i.e., values ending in five or greater are to
be rounded up). Consequently, a recorded value of 154 [mu]g/m\3\
would not be an exceedance because it would be rounded to 150 [mu]g/
m\3\; whereas, a recorded value of 155 [mu]g/m\3\ would be an
exceedance because it would be rounded to 160 [mu]g/m\3\. See 40 CFR
part 50, appendix K, section 1.0.
\3\ 78 FR 3806 (January 13, 2013).
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On October 14, 2009, consistent with Section 107(d)(3)(A) of the
CAA, the EPA notified the Governor of Arizona and the leaders of four
Tribes with areas of Indian country either entirely or partly within
Pinal County that the designation for Pinal County and nearby areas
contributing to monitored violations of the PM<INF>10</INF> NAAQS
should be revised.\4\ The EPA's initiation of the redesignation process
for Pinal County was based upon our review of 2006-2008 ambient
PM<INF>10</INF> monitoring data from monitoring stations within the
county showing widespread, frequent, and, in some cases, severe
violations of the PM<INF>10</INF> NAAQS.
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\4\ Letter from Laura Yoshii, Acting Regional Administrator, to
Governor of Arizona Jan Brewer dated October 14, 2009. By letters
dated December 30, 2009, the EPA notified the tribal leaders of the
Ak-Chin Indian Community, Gila River Indian Community, and San
Carlos Apache Tribe. The EPA notified Tohono O'odham Nation by
letter dated September 21, 2010.
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On May 31, 2012, EPA redesignated part of Pinal County from
unclassifiable to nonattainment for the 24-hour PM<INF>10</INF> NAAQS,
creating the West Pinal County PM<INF>10</INF> nonattainment area.\5\
The EPA's nonattainment redesignation of West Pinal County was based on
ambient PM<INF>10</INF> data collected from 2007 to 2009.\6\ Our
redesignation of West Pinal County to nonattainment for the
PM<INF>10</INF> NAAQS was effective on July 2, 2012. Consequently,
under section 188(c)(1) of the CAA, Arizona was required to submit an
implementation plan providing for West Pinal County's attainment of the
PM<INF>10</INF> NAAQS as expeditiously as practicable, but no later
than the close of the sixth calendar year after redesignation, or
December 31, 2018. As specified in our May 31, 2012 rulemaking, the
Moderate area PM<INF>10</INF> attainment plan for West Pinal County was
due on January 2, 2014, 18 months after the effective date of the
redesignation, as required by section 189(a)(2)(B) of the CAA.
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\5\ For the boundaries of the West Pinal County PM<INF>10</INF>
nonattainment area, see 40 CFR 81.303. Also, for a detailed
discussion of these boundaries, see our final rule at 77 FR 32024
(May 31, 2012) and proposed rule at 75 FR 60680 (October 1, 2010).
No areas of Indian country are located in the West Pinal
PM<INF>10</INF> nonattainment area.
\6\ 75 FR 60680 (October 1, 2010).
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On December 21, 2015, Arizona submitted ``The 2015 West Pinal
Moderate PM<INF>10</INF> Nonattainment Area SIP'' (Moderate Area Plan)
with related rules and analyses for West Pinal County.\7\ The
submission included rules regulating PM<INF>10</INF> emissions from
construction sites, crop operations, animal operations, irrigation
districts, and general fugitive dust. On May 1, 2017, the EPA approved
the submitted rules regulating PM<INF>10</INF> emissions from
construction sites, crop operations, irrigation districts, and general
fugitive dust, but did not act on the remainder of the submission.\8\
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\7\ Letter dated December 21, 2015 from Eric C. Massey,
Director, Air Quality Division, ADEQ to Jared Blumenfeld, Regional
Administrator, EPA Region IX.
\8\ 82 FR 20267 (May 1, 2017).
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On June 24, 2020, the EPA determined that the West Pinal County
nonattainment area had not attained the 1987 24-hour PM<INF>10</INF>
NAAQS by the latest permissible December 31, 2018 attainment date and
reclassified the area from Moderate to Serious.\9\ The EPA's finding of
failure to attain the NAAQS by the required date and concomitant
reclassification established an 18-month deadline for Arizona to submit
a Serious area attainment plan for the West Pinal County
PM<INF>10</INF> nonattainment area by January 24, 2022.
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\9\ 85 FR 37756 (June 24, 2020).
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On January 8, 2021, the EPA proposed a partial approval and partial
disapproval of the Moderate Area Plan, proposing to disapprove all
elements of the attainment plan, except the emissions inventories.\10\
Subsequently, on February 26, 2021, we proposed a limited approval and
limited disapproval of statutory provisions and rules that govern
particulate matter emissions from agricultural activity that Arizona
submitted with the plan.\11\
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\10\ 86 FR 1347 (January 8, 2021).
\11\ 86 FR 11681 (February 26, 2021).
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On May 17, 2021, ADEQ withdrew all submitted portions of the
Moderate Area Plan that the EPA had not approved previously into the
SIP.\12\ In addition to the required attainment plan, Arizona's
withdrawal action included the agricultural dust regulations that the
EPA had not already approved into the SIP. Because Arizona has
withdrawn the submission, the State has failed to meet its obligation
to submit an attainment plan for the Moderate area attainment plan
requirements for the West Pinal County PM<INF>10</INF> nonattainment
area, providing the basis for this finding.
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\12\ Letter from Daniel Czecholinski, Arizona Department of
Environmental Quality, to Deborah Jordan, EPA Region IX, dated May
17, 2021.
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B. CAA Moderate PM10 Nonattainment Area Requirements for West Pinal
County
Areas redesignated as nonattainment are subject to the applicable
requirements of part D, title I of the CAA and are classified as
Moderate by operation of law, consistent with section 188(a) of the
CAA. Within 18 months of the effective date of the redesignation, i.e.,
by January 2, 2014, Arizona was required to submit an attainment plan
to the EPA providing for how the State will meet the PM<INF>10</INF>
NAAQS within the West Pinal County nonattainment area no later than
December 31, 2018. Among other things, this Moderate area attainment
plan must contain statutorily mandated elements and, according to the
CAA and EPA guidance, address the following requirements: (1) An
approved permit program for construction of new and modified major
stationary sources; \13\ (2) a demonstration that the plan provides for
attainment by no later than the applicable Moderate area attainment
date or a demonstration that attainment by that date is impracticable;
\14\ (3) provisions for the implementation of reasonably available
control measures (RACM) and reasonably available control technology
(RACT); \15\ (4) quantitative milestones that will be used to evaluate
compliance with the requirement to demonstrate reasonable further
progress (RFP); \16\ (5) evaluation and regulation of PM<INF>10</INF>
precursors; \17\ (6) a description of the expected annual incremental
reductions in emissions that will demonstrate RFP; \18\ (7) emissions
inventories, as necessary; \19\ (8) other control measures besides RACM
and RACT as may be needed for
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attainment; \20\ (9) contingency measures; \21\ and (10) a motor
vehicle emissions budget for the purpose of determining the conformity
of transportation programs and plans developed by state transportation
agencies.\22\ With Arizona's May 17, 2021 withdrawal action, the State
has failed to meet its obligation to submit nine of the ten required
Moderate area attainment plan elements; today's action does not affect
ADEQ's permit program governing the construction and operation of new
and modified major stationary sources of PM<INF>10</INF> within the
West Pinal County nonattainment area.\23\
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\13\ CAA section 189(a)(1)(A).
\14\ CAA section 189(a)(1)(B).
\15\ CAA section 189(a)(1)(C).
\16\ CAA section 189(c).
\17\ CAA section 189(e).
\18\ CAA section 172(c)(2).
\19\ CAA section 172(c)(3).
\20\ CAA section 172(c)(6).
\21\ CAA section 172(c)(9).
\22\ 40 CFR 93.102(b)(1).
\23\ For a discussion of our action on Arizona's submittal to
meet CAA section 189(a)(1)(A), see 80 FR 67319 (November 2, 2015).
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By this action, the EPA is finding that Arizona failed to submit
the nine required PM<INF>10</INF> Moderate Area attainment plan
elements for the West Pinal County PM<INF>10</INF> nonattainment area
listed above. As noted, Arizona has submitted a major source
PM<INF>10</INF> permitting program including West Pinal County and that
element is not a subject of this finding.
C. Consequences of This Finding That Arizona Failed To Submit a PM10
Implementation Plan for West Pinal County
The EPA is finding that Arizona has failed to make a required
Moderate area attainment plan submission for the 1987 PM<INF>10</INF>
NAAQS for the West Pinal County area, except for the permit program
required under section 189(a)(1)(A). With this finding, section 179 of
the CAA starts a sanctions clock and a FIP clock. Section 179(a) of the
CAA specifies the consequences for a state if the EPA finds that a
state has failed to make a required SIP submission, if the EPA has
determined that a submitted SIP is incomplete, or if the EPA has
disapproved a SIP submission. If the EPA has not affirmatively
determined that Arizona has made complete submissions of the required
nonattainment SIP elements within 18 months of the effective date of
this action, then the offset sanction identified in section 179(b)(2)
will apply to West Pinal County, pursuant to section 179(a) and (b) and
40 CFR 52.31. If the EPA has not affirmatively determined that Arizona
has made a complete SIP submission for West Pinal County within six
months after imposition of this offset sanction, then the highway
funding sanction will be imposed, as required under section 179(b)(1)
of the CAA and 40 CFR 52.31.
Arizona may avoid these sanctions by taking timely action to remedy
this finding. The 18-month clock governing the Act's imposition of
sanctions on Arizona will stop and sanctions will not take effect if
the EPA finds that the State has made a complete SIP submission for the
Moderate area attainment plan requirements for the West Pinal County
area within 18 months of the date of this finding. Similarly, the EPA
is not required to promulgate a FIP if Arizona makes the required SIP
submission and the EPA takes final action to approve the submission
within two years of the finding of failure to submit a required SIP. In
sum, the CAA does not require sanctions or a FIP if the State and the
EPA take timely action to remedy this finding.
As discussed previously, the EPA determined that West Pinal County
did not meet the PM<INF>10</INF> NAAQS by December 31, 2018, causing
West Pinal County to be reclassified, by operation of law, from a
Moderate to a Serious PM<INF>10</INF> nonattainment area. With this
reclassification of West Pinal County to Serious, Arizona is required
to submit, by January 24, 2022, a nonattainment plan SIP revision that
complies with the statutory and regulatory requirements for Serious
PM<INF>10</INF> nonattainment plans and that demonstrates attainment of
the PM<INF>10</INF> NAAQS as expeditiously as practicable, but no later
than December 31, 2022. Although reclassification of West Pinal County
from Moderate to Serious does not eliminate Arizona's obligation to
meet Moderate area nonattainment plan requirements, the EPA anticipates
that Arizona's submission of an approvable Serious area nonattainment
plan would also satisfy the State's Moderate area nonattainment plan
obligations.\24\ Therefore, should Arizona submit a complete Serious
area attainment plan for the West Pinal County PM<INF>10</INF>
nonattainment area, the sanction clocks associated with this finding of
failure to submit would stop. Similarly, should Arizona submit, and the
EPA subsequently approve, a Serious area attainment plan for the West
Pinal County PM<INF>10</INF> nonattainment area, such a final approval
action would stop the FIP clock associated with this finding of failure
to submit the Moderate area implementation plan elements.
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\24\ See section 189(b)(1), specifying that Serious Area plan
requirements include ``the provisions submitted to meet the
requirements of paragraph (a)(1) [of section 189] (relating to
Moderate Areas).''
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II. Final Action
The EPA finds that Arizona has not submitted a revision to the
Arizona SIP addressing CAA requirements for a Moderate area attainment
plan, related rules, and other analyses, for the West Pinal County
PM<INF>10</INF> nonattainment area. Under provisions of the CAA,
Arizona was required to submit a Moderate area PM<INF>10</INF>
implementation plan for West Pinal County no later than January 2,
2014. Although Arizona submitted a Moderate area PM<INF>10</INF>
attainment plan, related rules, and analyses, on December 21, 2015, the
State withdrew this submittal on May 17, 2021, giving rise to this
finding.
This finding of failure to submit the required Moderate area
PM<INF>10</INF> attainment plan establishes a deadline, 24 months after
the effective date of this finding, for EPA to promulgate a FIP to
address the CAA requirements for a Moderate area PM<INF>10</INF>
attainment plan, unless prior to this deadline, Arizona submits and the
EPA approves the State's Moderate area PM<INF>10</INF> attainment plan
as meeting all the requirements of the CAA. The CAA also provides for
the imposition of emissions offset sanctions 18 months from the
effective date of this finding and highway funding sanctions 24 months
from the effective date of this finding, if Arizona does not submit the
required complete Moderate area PM<INF>10</INF> attainment plan before
these deadlines.
III. Statutory and Executive Order Reviews
Additional information about these statutes and Executive orders
can be found at <a href="http://www.epa.gov/laws-regulations/laws-and-executive-orders">http://www.epa.gov/laws-regulations/laws-and-executive-orders</a>.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.
B. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the PRA because this action does not impose additional requirements
beyond those imposed by state law.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities beyond those
imposed by state law.
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D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. This action does not impose additional requirements
beyond those imposed by state law. Accordingly, no additional costs to
State, local, or tribal governments, or to the private sector, will
result from this action.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the National Government and the states, or on the distribution of power
and responsibilities among the various levels of government.
F. Executive Order 13175: Coordination With Indian Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175, because this action does apply on any Indian
reservation land or in any other area where the EPA or an Indian tribe
has demonstrated that a tribe has jurisdiction, and will not impose
substantial direct costs on tribal governments or preempt tribal law.
There are no areas of Indian country located in the West Pinal
PM<INF>10</INF> nonattainment area. Thus, Executive Order 13175 does
not apply to this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive order. This action is not subject to
Executive Order 13045 because it does not impose additional
requirements beyond those imposed by state law.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act (NTTAA)
Section 12(d) of the NTTAA directs the EPA to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. The EPA
believes that this action is not subject to the requirements of section
12(d) of the NTTAA because application of those requirements would be
inconsistent with the CAA.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA lacks the discretionary authority to address environmental
justice in this action.
K. Congressional Review Act (CRA)
This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
L. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by September 21, 2021. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements (see section 307(b)(2)).
List of Subjects in 40 CFR Part 52
Environmental protection, Administrative practice and procedure,
Air pollution control, Incorporation by reference, Intergovernmental
relations, Particulate matter, Reporting and recordkeeping
requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: July 8, 2021.
Elizabeth Adams,
Acting Regional Administrator, Region IX.
[FR Doc. 2021-15667 Filed 7-22-21; 8:45 am]
BILLING CODE 6560-50-P
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