[Federal Register Volume 85, Number 106 (Tuesday, June 2, 2020)]
[Rules and Regulations]
[Pages 33571-33577]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-09732]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2019-0541; FRL-10009-19-Region 9]


Clean Air Plans; 2008 8-Hour Ozone Nonattainment Area 
Requirements; Phoenix-Mesa, Arizona

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action on a state implementation plan (SIP) revision submitted by the 
State of Arizona on behalf of the Maricopa Association of Governments 
(MAG) to meet Clean Air Act (CAA or ``the Act'') requirements for the 
2008 ozone national ambient air quality standards (NAAQS or 
``standards'') in the Phoenix-Mesa (``Phoenix'') ozone nonattainment 
area (NAA). The EPA is finalizing approval of the portions of the ``MAG 
2017 Eight-Hour Ozone Moderate Area Plan for the Maricopa Nonattainment 
Area (December 2016)'' (``MAG 2017 Ozone Plan'' or ``Plan'') that 
address the requirements for emissions inventories, a demonstration of 
attainment by the applicable attainment date, reasonably available 
control measures (RACM), reasonable further progress (RFP), motor 
vehicle emission budgets for transportation conformity, vehicle 
inspection and maintenance (I/M) programs, new source review (NSR) 
rules, and offsets. The EPA is finalizing a disapproval of the portion 
of the MAG 2017 Ozone Plan that addresses the requirements for 
contingency measures for failure to attain or to make RFP. However, 
based on a separate finding that the Phoenix 2008 ozone NAA (``Phoenix 
NAA'') attained the 2008 ozone standards by the applicable attainment 
date, we previously determined that the requirement for the State to 
submit a SIP revision addressing attainment contingency measures no 
longer applies for the Phoenix NAA. We are also finalizing our 
determination that the requirement for the State to submit a SIP 
revision addressing RFP contingency measures no longer applies for the 
Phoenix NAA. Finally, we are finalizing approval of the portions of a 
SIP revision, the ``MAG 2014 Eight-Hour Ozone Plan--Submittal of 
Marginal Area Requirements for the Maricopa Nonattainment Area (June 
2014)'' (``MAG 2014 Ozone Plan''), on which we previously deferred 
action.

DATES: This rule is effective on July 2, 2020.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R09-OAR-2019-0541. All documents in the docket are 
listed on the https://www.regulations.gov website. Although listed in 
the index, some information is not publicly available, e.g., 
Confidential Business Information 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 https://www.regulations.gov, or please contact the 
person identified in the FOR FURTHER INFORMATION CONTACT section for 
additional availability information.

FOR FURTHER INFORMATION CONTACT: Nancy Levin, EPA Region IX, 75 
Hawthorne Street, San Francisco, CA 94105. Phone: (415) 972-3848 or by 
email at levin.nancy@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,'' 
and ``our'' refer to the EPA.

Table of Contents

I. Proposed Action
II. Public Comments and EPA Responses
III. Final Action
IV. Statutory and Executive Order Reviews

I. Proposed Action

    On October 3, 2019, the EPA proposed action on a SIP revision 
submitted by the State of Arizona on behalf of MAG to meet CAA 
requirements for the 2008 ozone NAAQS \1\ in the Phoenix NAA.\2\ We 
also proposed to approve the portions of a SIP revision, the MAG 2014 
Ozone Plan, on which we previously deferred action. Our proposed action 
contains more information on the MAG 2017 Ozone Plan, the MAG 2014 
Ozone Plan, and our evaluation of these submittals.
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    \1\ Since the 2008 primary and secondary NAAQS for ozone are 
identical, for convenience, we refer to both as ``the 2008 ozone 
NAAQS'' or ``the 2008 ozone standard.''
    \2\ 84 FR 52838.
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II. Public Comments and EPA Responses

    The EPA's proposed action provided a 30-day public comment period. 
During this period, we received comments from two commenters: (1) 
Arizona Center for Law in the Public Interest (ACLPI) on behalf of 
ACLPI, the Sierra Club-Grand Canyon Chapter, and their supporters and 
members who live and work in the Phoenix metropolitan area; and (2) the 
Arizona Department of Environmental Quality (ADEQ). We summarize the 
comments and provide our responses below. All the comments received are 
included in the docket for this action.

Commenter #1--ACLPI

    Comment 1.a: The commenter asserted that MAG should do more to 
combat worsening ozone pollution, particularly given the area's 
economic expansion and population, but that in this Plan, MAG relied on 
existing controls, tightening fuel standards, and fleet turnover, which 
are not enough to achieve attainment. Specifically, ACLPI noted that 
the Act and the 2008 Ozone SIP Requirements Rule (SRR) require 
implementation of RACM to achieve attainment as expeditiously as 
practicable and to meet RFP requirements; and that ``[s]tates should 
consider all available measures, including those being implemented in 
other areas.'' The commenter stated that ``MAG did not incorporate any 
new control measures in the Plan'' and that the Plan's reliance on 
existing control measures, tighter fuel standards, and fleet turnover, 
is ``clearly not enough to reach attainment in the Phoenix NAA.'' The 
commenter also asserted that economic expansion and population growth 
in the Phoenix area will continue to drive onroad and nonroad mobile 
source emissions upwards, and that ``MAG and its member agencies should 
lead the way in finding more effective and long-lasting solutions to 
Phoenix's ozone pollution problem.''
    Response: We do not agree that the controls reflected in the Plan 
are insufficient to achieve attainment of the 2008 ozone NAAQS in the 
Phoenix NAA. For the reasons described in our proposal and in response 
to ACLPI's other comments in this document, we find that the Plan 
adequately demonstrates that the area will attain the 2008 Ozone NAAQS 
by the attainment date and meets all other applicable requirements, 
including RACM requirements. In particular, the Plan documents that the 
State did consider whether additional measures

[[Page 33572]]

were reasonably available as part of its RACM analysis, but determined 
that no new control measures were needed to attain the NAAQS or achieve 
RFP in the Phoenix NAA at this time.\3\ As described in our proposal, 
this analysis follows the approach outlined in the SRR, which provides 
that states need only adopt those control measures that ``will advance 
the attainment date or contribute to RFP for the area.'' \4\ ACLPI has 
not provided any information or analysis that undermines our conclusion 
that the MAG 2017 Ozone Plan meets this requirement.
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    \3\ Plan Chapter 4.
    \4\ 80 FR 12264, 12282 (March 6, 2015).
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    Comment 1.b: ACLPI commented that the area exceeded the 2008 ozone 
standard multiple days in 2015 through 2019, and that the design value 
for the 2017 attainment year exceeded the 2008 ozone NAAQS when 
``unsupported `exceptional events' exceedances on June 20, 2015 are 
included in the calculation.'' The commenter also stated that, even 
assuming these exceedances were properly excluded, the design value for 
2018 was 77 parts per billion (ppb). On this basis, the commenter 
asserted that ``any paper `attainment' of the 2008 standard in 2017 was 
fleeting and not the result of permanent emission reductions.'' 
Finally, the commenter stated that 2018 monitoring data indicate that 
ozone concentrations have increased since 2016 and that the Phoenix 
metropolitan area is ranked 7th on the American Lung Association's list 
of the most ozone-polluted cities in the U.S.
    Response: Under the CAA, a determination of whether an area has 
attained by the attainment date is a separate action from the review of 
an attainment demonstration in a SIP revision. The EPA's review of the 
SIP revision occurs under CAA section 110(k), while a determination of 
whether an area has failed to attain is governed by CAA section 
181(b)(2). Under section 181(b)(2), the EPA must determine whether an 
ozone NAA has attained the applicable NAAQS ``[w]ithin 6 months 
following the applicable attainment date (including any extension 
thereof).'' In this instance, the EPA has already undertaken a separate 
final action to determine, pursuant to section 181(b)(2), that the 
Phoenix NAA attained the 2008 ozone NAAQS by the ``Moderate'' area 
attainment date, based on 2015-2017 monitoring data.\5\ That separate 
action was based, in part, on our prior concurrence with ADEQ's 
demonstration that, based on the weight of evidence, the ozone 
exceedances that occurred on June 20, 2015, were caused by wildfire 
ozone exceptional events.\6\ These separate actions are beyond the 
scope of this final rule.
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    \5\ 84 FR 60920 (November 12, 2019).
    \6\ Letter dated May 7, 2019, from Elizabeth J. Adams, Director, 
Air Division, EPA Region IX, to Timothy S. Franquist, Director, Air 
Quality Division, ADEQ.
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    We do not consider the exceedances of the 2008 ozone standard in 
2018 and 2019, years after the area's applicable attainment date, to be 
relevant to the approvability of the State's demonstration that this 
area would attain the 2008 ozone NAAQS by the attainment date, as 
discussed in our response to comment 1.d.
    Comment 1.c: ACLPI stated that the EPA's approval of the Plan 
``would defer or significantly delay taking meaningful actions to 
protect . . . vulnerable residents, contravening the Act's express 
policy that `protection of public health is the highest priority' '' 
(quoting CAA section 319(b)(3)(A)).
    The commenter further asserted that MAG and its member agencies 
should act now to ``promote and implement clean mobility measures,'' 
such as converting all or part of government fleets to zero-emission 
vehicles and offering tax incentives and rebate programs to residents 
who purchase electric vehicles, to bring the Phoenix area into 
compliance with ozone standards ``with an adequate margin of safety and 
to ensure that such compliance is maintained.'' In addition, the 
commenter argued that ``MAG should do more to control ozone precursor 
emissions from gas-powered lawn equipment.'' Finally, citing MAG's RACM 
analysis in Chapter 4 of the Plan, the commenter argued that MAG should 
evaluate additional control measures from the EPA's menu of control 
measures and measures adopted by the Sacramento Metropolitan Air 
Quality Management District, at least as contingency measures.
    Response: Our approval is based on our finding that the Plan meets 
all of the applicable requirements of the Act, as described in our 
proposal and in this document. Under CAA section 110(k)(3), the EPA is 
required to approve any SIP submittal that meets all such requirements. 
The EPA cannot require states to adopt measures that are more stringent 
than necessary to meet CAA requirements. While we encourage ADEQ, MAG, 
and Maricopa and Pinal Counties to consider adopting the measures 
suggested by the commenter, we have determined that these measures are 
not necessary to provide for attainment of the 2008 ozone NAAQS in the 
Phoenix NAA by the attainment date or to meet RFP requirements, and are 
therefore not needed to meet RACM requirements. As noted in our 
response to comment 1.b, the EPA has determined, pursuant to section 
181(b)(2), that the Phoenix NAA attained the 2008 ozone NAAQS by the 
``Moderate'' area attainment date. In addition, for the reasons 
described in our response to comment 1.f, we find that RFP contingency 
measures are not required for the Phoenix NAA at this time. Therefore, 
ADEQ, MAG, and the counties are not required to adopt any additional 
control measures for purposes of the MAG 2017 Ozone Plan.
    Furthermore, the commenter's reliance on CAA section 319(b)(3)(A) 
is misplaced. This provision establishes five principles that the EPA 
must follow in developing implementing regulations for exceptional 
events, including that ``protection of public health is the highest 
priority.'' \7\ As noted in our response to comment 1.b, we previously 
concurred with ADEQ's demonstration that, based on the weight of 
evidence, the ozone exceedances that occurred on June 20, 2015, were 
caused by wildfire ozone exceptional events.\8\ This was done through a 
separate Agency action and is beyond the scope of this final rule. 
Requirements for exceptional events demonstrations are not directly 
relevant to the EPA's action on an attainment plan pursuant to CAA 
section 110(k)(3).
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    \7\ CAA section 319(b)(3)(A)(i).
    \8\ Letter dated May 7, 2019, from Elizabeth J. Adams, Director, 
Air Division, EPA Region IX, to Timothy S. Franquist, Director, Air 
Quality Division, ADEQ.
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    Comment 1.d: ACLPI asserted that ``the EPA should disapprove the 
Plan's attainment demonstration because it does not demonstrate that 
the Phoenix NAA attained the 2008 standard by the July 20, 2018 
attainment date or made RFP goals.'' The commenter stated that MAG 
erred in omitting ozone exceedances that occurred on June 20, 2015, 
from the 2015-2017 design value calculation. The commenter also argued 
that the ``EPA cannot simply ignore the fact that monitors in the 
Phoenix NAA have continued to record numerous violations of the 2008 
ozone standard in 2018 and 2019, or that the 8-hour ozone design value 
for the Phoenix NAA in 2018 was 77 ppb.''
    Response: We do not agree with the commenter's argument that the 
EPA should disapprove the attainment demonstration because it did not 
demonstrate that the area factually attained or achieved RFP, or with 
the commenter's assertions concerning

[[Page 33573]]

exceptional events and the consideration of monitoring data collected 
after the Moderate attainment date.
    MAG has satisfied the legal and regulatory criteria for attainment 
demonstrations. Contrary to the commenter's suggestion, the CAA does 
not require an attainment demonstration to show that an area has 
attained the NAAQS based on monitored values, or that it has achieved 
emissions reductions corresponding to RFP. Such demonstrations would 
not be practical, given that attainment demonstrations are generally 
required to be submitted to the EPA well before the milestone and 
attainment dates.\9\ Rather, the CAA requires states to submit SIP 
revisions that ``provide for attainment'' of the NAAQS by the 
attainment date and ``require'' RFP.\10\
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    \9\ See, e.g., CAA section 181(a)(1) (setting the attainment 
date for Moderate areas of 6 years after November 15, 1990); and 
182(b)(1)(A) (requiring submittal of attainment demonstration for 
Moderate areas 3 years after November 15, 1990 and setting RFP 
milestone date of 6 years after November 15, 1990).
    \10\ CAA sections 172(c)(1), (2), and (6).
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    To address the requirements to provide for attainment and submit an 
attainment demonstration, the MAG 2017 Ozone Plan includes an 
attainment demonstration using air quality modeling that shows that 
existing control measures are sufficient for the Phoenix area to attain 
the 2008 ozone standard by 2017. In particular, to predict future ozone 
levels, the modeled attainment demonstration uses a baseline design 
value derived from historical monitoring data, historical 
meteorological data from the baseline period, emissions inventories 
representing the baseline design value period, and modeled reductions 
in emissions based on SIP control measures. The modeled attainment 
demonstration is intended to assess whether SIP controls are adequate 
to reduce ambient ozone to a level at or below the NAAQS by the 
attainment date.\11\
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    \11\ 40 CFR 51.1108(c)(attainment demonstration must be ``based 
on photochemical grid modeling or any other analytical method 
determined . . . to be at least as effective.'').
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    The modeled attainment demonstration showed that the emissions 
reductions would provide for attainment of the 2008 ozone NAAQS by the 
attainment date. As a separate matter, as described in our response to 
comment 1.b, the monitoring data for 2015-2017 show attainment, and the 
EPA has already determined in a prior final Agency action that the area 
attained the 2008 ozone NAAQS by the attainment date based on these 
data.\12\ Data from 2018 and preliminary data from 2019 for the area do 
not alter our assessment of the modeled attainment demonstration for 
the 2008 ozone NAAQS. However, we note that the Phoenix area is 
currently designated and classified as a ``Marginal'' NAA for the 2015 
ozone NAAQS and has a maximum attainment date of August 3, 2021.\13\ 
The EPA will consider the monitoring data from 2018 through 2020 to 
determine whether the area attained the 2015 ozone NAAQS by the 
attainment deadline.\14\ If these data show that the area has not 
attained, the area would be reclassified to a Moderate NAA for the 2015 
ozone NAAQS, and the State would be required to submit a new attainment 
plan that addresses the Moderate area requirements for the 2015 ozone 
NAAQS.\15\ Therefore, while the 2018-2019 monitoring data for the 
Phoenix NAA are not pertinent to our action on the 2017 MAG Ozone Plan, 
these data will be relevant to our determination of whether the area 
has attained the 2015 ozone standard.
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    \12\ 84 FR 60920.
    \13\ 40 CFR 81.303, 51.1303(b).
    \14\ The 2015 ozone primary and secondary NAAQS are 0.070 parts 
per million (ppm), while 2008 NAAQS are 0.075 ppm. Both are based on 
a three-year average of the annual fourth-highest daily maximum 8-
hour average ozone concentrations. Accordingly, exceedances of the 
2008 NAAQS are also exceedances of the 2015 NAAQS.
    \15\ CAA section 181(b)(2).
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    Comment 1.e: The commenter argued that approval of the attainment 
demonstration would be ``problematic, given the weaknesses of MAG's 
modeling'' that the EPA identified in the proposed rule.
    Response: We do not agree that the ``weaknesses'' identified in our 
proposal concerning meteorological inputs and model performance are 
obstacles to approving the attainment demonstration in the MAG 2017 
Ozone Plan. As an initial matter, it is important to note that the 
EPA's ``Modeling Guidance for Demonstrating Attainment of Air Quality 
Goals for Ozone, PM2.5, and Regional Haze'' (``Modeling 
Guidance'') states, ``[b]y definition, models are simplistic 
approximations of complex phenomena'' and ``all models have strengths 
and weaknesses.'' \16\ Accordingly, the Modeling Guidance recommends 
conducting evaluations of both meteorological inputs and air quality 
model performance to evaluate the reliability of the modeling results. 
These are important aspects of the attainment demonstration. However, 
the Modeling Guidance recommendations are not regulatory requirements, 
and there are no recommended pass/fail thresholds for any particular 
evaluation metric. The guidance recommendations are generally 
applicable to evaluating model performance, but there are no specific 
requirements that are applicable or must be met in all cases. The 
particular analyses used may vary on a case-by-case basis, depending on 
the availability of modeled and observational data (both meteorological 
and air quality data).
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    \16\ ``Modeling Guidance for Demonstrating Attainment of Air 
Quality Goals for Ozone, PM2.5, and Regional Haze'', 
November 2018, EPA 454/R-18-009 (``Modeling Guidance''), 169, 24.
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    In evaluating the meteorological inputs to the modeling, MAG 
followed the recommendations of the Modeling Guidance by conducting an 
``operational evaluation'' focusing on ``the values and distributions 
of specific meteorological parameters as paired with and compared to 
observed data.'' \17\ Specifically, MAG used a series of statistical 
metrics to compare wind speed, wind direction, temperature, and water 
vapor mixing ratio values from the model to observations from weather 
stations in the NAA. As described in our proposal, temperature and 
water vapor mixing ratios showed good agreement with observations, with 
little bias. The modeled wind speed showed an overestimate at low wind 
speeds and an underestimate at high wind speed. Modeled wind direction 
showed poorer performance for wind directions from the south-east. MAG 
asserted that modeling wind speed and direction in Phoenix is difficult 
due to the complex terrain in the area, but that results are comparable 
to the benchmarks described in the Modeling Guidance.\18\
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    \17\ Modeling Guidance, 33.
    \18\ 84 FR 52838, 52844.
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    The Modeling Guidance explains that these benchmarks are to be 
``used as a means of assessing general confidence in the meteorological 
model data'' rather than as ``as a `pass/fail' indicator of the 
acceptability of a model simulation.'' \19\ The fact the metrological 
parameters used in MAG's modeling are comparable to these benchmarks, 
despite the challenges presented by the complex terrain of the area, 
supports a conclusion that the meteorological inputs used by MAG 
``represent a reasonable approximation of the actual meteorology that 
occurred during the modeling period.'' \20\
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    \19\ Modeling Guidance, 33.
    \20\ Id. at 32.
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    In addition to an operational evaluation of meteorological inputs 
based on statistical comparisons, the Modeling Guidance also recommends 
that states conduct a phenomenological

[[Page 33574]]

evaluation (i.e., a qualitative comparison of observed features versus 
their depiction in the model data). As noted in our proposal, while the 
inclusion of such an analysis ``would have provided additional 
confidence, the model adequately simulates the temporal and spatial 
variability in ozone concentrations across the area, suggesting the 
model captures the meteorological phenomena that are important for 
ozone formation in the Phoenix area.'' \21\ Therefore, we find that the 
absence of a phenomenological evaluation of meteorological data does 
not undermine the overall adequacy of the modeling.
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    \21\ 84 FR 52838, 52844.
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    Concerning air quality model performance evaluation, the EPA's 
``Guideline on Air Quality Models'' explains that, ``[t]here are no 
specific levels of any model performance metric that indicate 
`acceptable' model performance.'' \22\ Thus, ``[t]he EPA recommends 
that air agencies conduct a variety of performance tests and weigh them 
qualitatively to assess model performance.'' \23\ Specifically, as part 
of an operational evaluation, the EPA recommends evaluating the 
following statistical metrics: mean observed, mean model, mean bias, 
mean error and/or root mean square error, normalized mean bias and/or 
fractional bias, normalized mean error and/or fractional error, and the 
correlation coefficient.\24\ In this case, as part of its air quality 
model evaluation, MAG evaluated each of the recommended (except for the 
correlation coefficient, for which it substituted the related 
``coefficient of determination'') to evaluate ozone model 
performance.\25\ Figures IV-5 through IV-10 of the Modeling technical 
support document provide time-series plots, scatter plots, spatial maps 
of mean error and bias, and box plots comparing model performance with 
previous studies. As described in the proposal, these analyses show 
that, although there were ``a few periods where peak ozone 
concentrations were underpredicted in July and overpredicted in August, 
MAG modeling statistics are within or close to the distribution of 
other published modeling studies.'' \26\ Accordingly, we concluded 
that, ``[o]verall, the operational evaluation shows good model 
performance.'' \27\ As we further noted in our proposal, the ``addition 
of some dynamic and diagnostic evaluations as described in the Modeling 
Guidance would have provided additional confidence.'' \28\ However, the 
Modeling Guidance also explains that, ``[g]iven that air agencies might 
have limited resources and time to perform diagnostic and dynamic 
evaluation, the use of these methods may be limited in scope in a 
typical regulatory modeling application.'' \29\ Accordingly, we do not 
consider the omission of such dynamic and diagnostic evaluations to 
undercut the adequacy of the modeling.
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    \22\ ``Guideline on Air Quality Models,'' 40 CFR part 51, 
appendix W, section 5.2.d.
    \23\ Modeling Guidance, 69.
    \24\ Id. at 70-72.
    \25\ MAG 2017 Ozone Plan, Appendix B, Exhibit 1, (``Modeling 
Technical Support Document'' or ``Modeling TSD''), section IV.
    \26\ 84 FR 52838, 52844.
    \27\ Id.
    \28\ Id.
    \29\ Modeling Guidance, 68.
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    In sum, the meteorological inputs were reasonable, and the Plan 
demonstrated good air quality model performance. Furthermore, in 
addition to the modeling demonstration, the Plan also contains a 
comprehensive ``weight of evidence'' analysis, consisting of several 
supplemental analyses that further support the modeled attainment 
demonstration.\30\ These include ozone air quality trends and precursor 
emission trends, both of which show continued progress and support the 
conclusion that the attainment demonstration is sound. Other analyses 
include: an evaluation of the sensitivity of the model to oxides of 
nitrogen (NOX) and volatile organic compound (VOC) emissions 
reductions; a comparison to the EPA's modeling for the Cross-State Air 
Pollution Rule, which projects the area will be in attainment in 2017; 
a process analysis using the VOC:NOX ratio as a 
photochemical indicator; and an examination of weekday versus weekend 
effects. These analyses provide assurance that the model is adequately 
simulating the physical and chemical processes leading to ozone in the 
atmosphere and that the model responds in a scientifically reasonable 
way to emissions changes. Therefore, we do not agree with the commenter 
that we should disapprove the attainment demonstration in the MAG 2017 
Ozone Plan based on the modeling.
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    \30\ 84 FR 52838, 52845.
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    Comment 1.f: The commenter supported the EPA's proposal to 
disapprove the contingency measure element of the Plan based on Bahr v. 
EPA,\31\ but argued that there is no statutory basis for ``excusing'' 
MAG from including contingency measures in the Plan. The commenter 
stated that CAA section 172(e) ``expressly prevents EPA from loosening 
controls applicable to a nonattainment area when a NAAQS is relaxed,'' 
and the EPA applies the same concept ``where the NAAQS is made more 
stringent.'' Citing South Coast Air Quality Management District v. EPA 
(``South Coast''),\32\ the commenter noted that contingency measures 
are ``controls'' because they are ``designed to constrain ozone 
pollution.'' Citing South Coast, the commenter argued that MAG cannot 
withdraw its contingency measures because ``withdrawing measures from a 
SIP would also constitute impermissible backsliding.''
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    \31\ 836 F.3d 1218, 1235-1237 (9th Cir. 2016).
    \32\ 472 F.3d 882, 900-902 (D.C. Cir. 2006).
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    Response: The commenter's reliance on CAA section 172(e) is 
misplaced. This provision applies if the EPA relaxes a NAAQS and 
requires the EPA to promulgate ``requirements applicable to all areas 
which have not attained that standard as of the date of such 
relaxation.'' \33\ The commenter alleges that this provision would 
preclude our determination that a SIP revision providing for 
contingency measures for the Phoenix NAA for the 2008 ozone NAAQS is no 
longer required. The promulgation of the 2008 ozone NAAQS was a 
strengthening from the prior 1997 ozone NAAQS. Accordingly, CAA section 
172(e) is not directly applicable.
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    \33\ 42 U.S.C. 7502.
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    The commenter further discusses, but mischaracterizes, the EPA's 
past actions invoking the principles of section 172(e) when revoking an 
ozone standard. The commenter wrongly suggests that the EPA has applied 
section 172(e) in cases where the Agency strengthens the NAAQS; this is 
not true. The EPA has looked to the principles of section 172(e) to 
develop anti-backsliding regulations when the EPA has revoked ozone 
standards in order to ensure air quality protections are preserved 
during the transition to a more protective NAAQS.\34\ The EPA has not 
taken any action to revoke the 2008 ozone NAAQS.\35\
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    \34\ 80 FR 12264 (March 6, 2015) (revoking the 1997 ozone 
NAAQS); 69 FR 23951 (April 30, 2004) (revoking the 1979 1-hour ozone 
NAAQS).
    \35\ 83 FR 62998 (December 6, 2018) (``The EPA is not taking any 
final action regarding our proposed approach for revoking a prior 
ozone NAAQS and establishing anti-backsliding requirements; the 
agency intends to address any revocation of the 2008 ozone NAAQS and 
any potential anti-backsliding requirements in a separate future 
rulemaking.'').
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    The relevant provision of the CAA, section 172(c)(9), requires 
nonattainment plans to ``provide for the implementation of specific 
measures to be undertaken if the area fails to make [RFP], or to attain 
the [NAAQS] by the attainment date applicable under this part.'' Thus, 
contingency measures are required for two purposes: attainment

[[Page 33575]]

contingency measures and RFP contingency measures. On November 12, 
2019, the EPA took final action to determine that the Phoenix NAA 
attained the Moderate area 2008 ozone NAAQS by the attainment date, and 
Arizona was no longer required to provide a SIP submission that 
includes attainment contingency measures for the 2008 NAAQS for the 
Phoenix NAA because attainment contingency measures for this NAAQS 
would never be required to be implemented.\36\ With regard to the RFP 
contingency measure requirement, we proposed, in conjunction with our 
proposal on the MAG 2017 Ozone Plan, to find that the RFP contingency 
measure requirement would also no longer apply to the Phoenix NAA for 
the 2008 ozone NAAQS.\37\ We explained that the EPA's long-standing 
interpretation is that RFP contingency measures for Moderate areas 
would be triggered only by a finding that the area failed to attain the 
standard by the Moderate area attainment date.\38\ Because we have 
determined that the area has attained the standard by the attainment 
date, the RFP contingency measures have not, and will not, be 
triggered. Thus, we have determined that a SIP revision addressing RFP 
contingency measures is no longer needed.
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    \36\ 84 FR 60920.
    \37\ 84 FR 52838, 52847.
    \38\ Id. (citing 57 FR 13498, 13511 (April 16, 1992) and 
Memorandum dated March 11, 1993, from G.T. Helms, Chief Ozone/Carbon 
Monoxide Programs Branch, to Air Branch Chief, Regions I-X).
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    Comment 1.g: The commenter noted that section 107(d)(3)(E)(v) 
prohibits the EPA from redesignating a NAA to attainment unless ``the 
State . . . has met all requirements applicable to this area'' under 
section 110 and part D of the CAA, including contingency measures under 
section 172(c)(9). The commenter also quoted CAA section 110(l), which 
prohibits the EPA from approving a SIP revision that would interfere 
with any applicable requirement concerning attainment and RFP or any 
other applicable requirement of the CAA.
    Response: None of the provisions cited by the commenter are 
relevant either to our disapproval of the contingency measures for the 
Phoenix NAA or to our determination that a SIP revision addressing 
contingency measures is no longer required for the Phoenix NAA. CAA 
section 107(d)(3)(E)(v) applies when the EPA is redesignating an area 
from nonattainment to attainment. ADEQ has not submitted a 
redesignation request for the Phoenix NAA, and we have not proposed to 
redesignate the area. Therefore, CAA section 107(d)(3)(E)(v) does not 
apply to this action.
    CAA section 110(l) prohibits the EPA from approving a SIP revision 
that would interfere with any applicable requirement of the CAA. 
Because we are disapproving the contingency measure element of the 
Plan, this requirement does not apply to our action on the contingency 
measure portion of the Plan. To the extent the commenter is suggesting 
that our approval of the remainder of the 2017 MAG Ozone Plan would 
interfere with any applicable requirement of the CAA, we do not agree. 
First, in this action, the EPA is not approving the removal of any 
existing provisions in the approved Arizona SIP, and thus there is no 
concern that our approval action would interfere with any applicable 
CAA requirement. Second, to the extent that the commenter is concerned 
that the EPA's approval of the nonattainment plan without contingency 
measures contravenes the requirements of the CAA to include such 
measures, the EPA has determined that such measures are not in fact 
required for this area for this NAAQS for the reasons described in our 
response to comment 1.f in this action. Section 110(l) prohibits the 
EPA's approval of a SIP revision if it would interfere with any 
applicable requirement concerning attainment and reasonable further 
progress, or any other applicable requirement of the CAA. Given that 
attainment contingency measures and RFP contingency measures are no 
longer applicable requirements, following the EPA's final action to 
determine the area attained by the attainment date, the EPA's approval 
of the remainder of the SIP submission is consistent with CAA section 
110(l). For the reasons discussed in our proposal and in this document, 
we find that the Plan meets all applicable CAA requirements. Therefore, 
our approval of the other elements of the Plan complies with CAA 
section 110(l).
    Comment 1.h: The commenter stated that there was no merit to the 
EPA's argument that based on the ``milestone'' requirement for ozone 
NAAs classified as ``Serious'' or higher, the RFP contingency measures 
are no longer required. In particular, citing South Coast, the 
commenter asserted that ``[t]his provision demonstrates that when 
Congress intended to exempt nonattainment areas from statutory 
requirements, it did so expressly.'' The commenter concluded that the 
EPA must disapprove the contingency measure element of the Plan and 
require the adoption of additional contingency measures consistent with 
Bahr.
    Response: In our proposal, we explained that under CAA section 
182(g), ozone nonattainment areas classified Serious or higher are 
required to meet RFP emissions reduction milestones and to demonstrate 
compliance with those milestones, except when the milestone coincides 
with the attainment date and the standard has been attained. We noted 
that this specific statutory exemption from milestone compliance 
demonstration submittals for areas that attained by the attainment date 
indicates that Congress intended that a finding that an area attained 
the standard--the finding made in a determination of attainment by the 
attainment date--would serve as a demonstration that RFP requirements 
for the area have been met. Therefore, a finding that a Serious or 
above area has attained the NAAQS by the attainment date would also 
indicate that RFP contingency measures could not be triggered and are 
therefore no longer necessary.
    The commenter points to the absence of a similar exemption (i.e., 
an exemption from RFP milestone compliance demonstration submittals 
when the milestone coincides with the attainment date and the standard 
has been attained) for Moderate areas. The commenter appears to be 
arguing that this omission indicates that Congress intended to subject 
Moderate areas to the requirement for RFP contingency measures, even if 
they attained the NAAQS by the attainment date. Contrary to the 
commenter's suggestion, however, Congress expressly exempted Moderate 
areas from all RFP milestone compliance demonstration submittals.\39\ 
Accordingly, unlike for Serious and above areas, Congress did not need 
to provide a specific exemption for a milestone coinciding with the 
attainment date for Moderate areas. The overall statutory exemption 
from requirements for RFP milestone compliance demonstration submittals 
in Moderate areas supports the EPA's interpretation that RFP 
contingency measures in Moderate ozone NAAs can be triggered only by a 
finding that the area has failed to attain the standard by the 
attainment date.\40\ Therefore, while

[[Page 33576]]

we are disapproving the contingency measure element of the Plan, we are 
also determining that Arizona is no longer required to submit a SIP 
revision including contingency measures for the Phoenix NAA.
---------------------------------------------------------------------------

    \39\ CAA section 182(g)(1) (``6 years after November 15, 1990, 
and at intervals of every 3 years thereafter, the State shall 
determine whether each nonattainment area (other than an area 
classified as Marginal or Moderate)'' has achieved the applicable 
milestone).
    \40\ As noted in our proposal, ``a determination of attainment 
by the attainment date for a Moderate area serves as demonstration 
that RFP requirements for the area have been met and that RFP 
contingency measures are no longer needed. Thus, the EPA concludes 
that RFP contingency measures for Moderate areas are no longer 
needed if the area has attained the relevant NAAQS.'' 84 FR 52847.
---------------------------------------------------------------------------

Commenter #2--ADEQ

    Comment: ADEQ expressed support for the EPA's proposed action, 
including disapproval of the contingency measure requirements, provided 
the EPA finalizes its determination that the Phoenix NAA attained the 
2008 ozone standard by the attainment date.
    Response: The EPA finalized its determination that the Phoenix NAA 
attained the 2008 ozone standard by the applicable attainment date on 
November 12, 2019.\41\
---------------------------------------------------------------------------

    \41\ 84 FR 60920.
---------------------------------------------------------------------------

III. Final Action

    No comments were submitted that change our assessment of the 
determinations as described in our proposed action. Therefore, for the 
reasons discussed in the preceding sections and in our proposed rule, 
under CAA section 110(k)(3), the EPA is finalizing approval as a 
revision to the Arizona SIP the following portions of the ``MAG 2017 
Eight-Hour Ozone Moderate Area Plan for the Maricopa Nonattainment 
Area,'' submitted by ADEQ on December 19, 2016:
     Base year and periodic emission inventories as meeting the 
requirements of CAA sections 172(c)(3), 182(a)(1), and 182(a)(3)(A) and 
40 CFR 51.1115(a) and (b);
     RACM demonstration and control strategy as meeting the 
requirements of CAA section 172(c)(1) and 172(c)(6) and 40 CFR 
51.1112(c);
     Attainment demonstration as meeting the requirements of 
CAA section 182(b)(1)(A)(i) and 40 CFR 51.112 and 51.1108(c);
     Rate of progress plan and RFP demonstration as meeting the 
requirements of CAA sections 172(c)(2) and 182(b)(1) and 40 CFR 
51.1110(a)(3)(i);
     Motor vehicle emissions budgets for the 2017 attainment 
year because they are consistent with the RFP demonstration and the 
attainment demonstration approved herein and meet the other criteria in 
40 CFR 93.118(e);
     Vehicle I/M provisions as meeting the requirements of 40 
CFR part 51, subpart S;
     NSR discussion as demonstrating that the requirements of 
CAA sections 173 and 182(a)(2)(C) have been met; and
     Offset discussion as demonstrating that the requirements 
of CAA sections 173 and 182(b)(5) have been met.
    The EPA is finalizing disapproval of the contingency measure 
element of the MAG 2017 Ozone Plan for failing to meet the requirements 
of CAA sections 172(c)(9) and 182(c)(9). However, based on our November 
12, 2019 finding of attainment by the applicable attainment date,\42\ 
we are also finalizing our determination that Arizona is no longer 
required to submit a SIP revision addressing the contingency measures 
requirement for failure to meet RFP for the Phoenix 2008 ozone NAA. 
Therefore, our disapproval does not trigger sanctions or FIP clocks.
---------------------------------------------------------------------------

    \42\ Id.
---------------------------------------------------------------------------

    Finally, we are finalizing approval of the NSR and offset elements 
of the MAG 2014 Ozone Plan as meeting the Marginal area requirements of 
CAA section 182(a)(2)(C) and CAA sections 173 and 182(b)(5), 
respectively, for the Phoenix 2008 ozone NAA.

IV. Statutory and Executive Order Reviews

    Additional information about the following statutes and Executive 
orders can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

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. Executive Order 13711: Reducing Regulations and Controlling 
Regulatory Costs

    This action is not an Executive Order 13771 regulatory action 
because this action is not significant under Executive Order 12866.

C. 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.

D. 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.

E. 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.

F. 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.

G. Executive Order 13175: Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175, because the SIP is not approved to apply on any 
Indian reservation land or in any other area where the EPA or an Indian 
tribe has demonstrated that a tribe has jurisdiction, and will not 
impose substantial direct costs on tribal governments or preempt tribal 
law. Thus, Executive Order 13175 does not apply to this action.

H. 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.

I. 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.

[[Page 33577]]

J. 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.

K. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Population

    The EPA lacks the discretionary authority to address environmental 
justice in this rulemaking.

L.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).

M. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by August 3, 2020. 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, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: May 1, 2020.
John Busterud,
Regional Administrator, Region IX.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart D--Arizona


0
2. Section 52.120 is amended in table 1 in paragraph (e), under the 
heading ``Part D Elements and Plans for the Metropolitan Phoenix and 
Tucson Areas,'' by adding entries for ``MAG 2017 Eight-Hour Ozone 
Moderate Area Plan for the Maricopa Nonattainment Area (December 
2016)'' and ``MAG 2014 Eight-Hour Ozone Plan--Submittal of Marginal 
Area Requirements for the Maricopa Nonattainment Area (June 2014), 
Sections titled ``A Nonattainment Area Preconstruction Permit Program--
CAA section 182(a)(2)(C),'' ``New Source Review--CAA, Title I, Part 
D,'' and ``Offset Requirements: 1:1 to 1 (Ratio of Total Emission 
Reductions of Volatile Organic Compounds to Total Increased 
Emissions)--CAA Section 182(a)(4)'' on pages 8 and 9'' after the entry 
for ``Reasonably Available Control Technology (RACT) Analysis, Negative 
Declaration and Rules Adoption'' to read as follows:


Sec.  52.120  Identification of plan.

* * * * *
    (e) * * *

                       Table 1--EPA-Approved Non-Regulatory and Quasi-Regulatory Measures
       [Excluding certain resolutions and statutes, which are listed in tables 2 and 3, respectively] \1\
----------------------------------------------------------------------------------------------------------------
                                     Applicable
                                   geographic or
     Name of SIP provision         nonattainment     State submittal date   EPA approval date     Explanation
                                   area or title/
                                      subject
----------------------------------------------------------------------------------------------------------------
                         The State of Arizona Air Pollution Control Implementation Plan
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                     Part D Elements and Plans for the Metropolitan Phoenix and Tucson Areas
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
MAG 2017 Eight-Hour Ozone        Phoenix-Mesa 2008  December 19, 2016.....  [Insert Federal    Adopted by the
 Moderate Area Plan for the       8-hour ozone                               Register           Arizona
 Maricopa Nonattainment Area      nonattainment                              Citation], June    Department of
 (December 2016).                 area.                                      2, 2020.           Environmental
                                                                                                Quality on
                                                                                                December 13,
                                                                                                2016.
MAG 2014 Eight-Hour Ozone Plan-- Phoenix-Mesa 2008  July 2, 2014..........  [Insert Federal    Other provisions
 Submittal of Marginal Area       8-hour ozone                               Register           of the MAG 2014
 Requirements for the Maricopa    nonattainment                              Citation], June    Eight-Hour Ozone
 Nonattainment Area (June         area.                                      2, 2020.           Plan--Submittal
 2014), Sections titled ``A                                                                     of Marginal Area
 Nonattainment Area                                                                             Requirements for
 Preconstruction Permit                                                                         the Maricopa
 Program--CAA section                                                                           Nonattainment
 182(a)(2)(C),'' ``New Source                                                                   Area (June 2014)
 Review--CAA, Title I, Part                                                                     were approved on
 D,'' and ``Offset                                                                              October 16,
 Requirements: 1:1 to 1 (Ratio                                                                  2015.
 of Total Emission Reductions
 of Volatile Organic Compounds
 to Total Increased Emissions)--
 CAA Section 182(a)(4)'' on
 pages 8 and 9.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ Table 1 is divided into three parts: Clean Air Act Section 110(a)(2) State Implementation Plan Elements
  (excluding Part D Elements and Plans), Part D Elements and Plans (other than for the Metropolitan Phoenix or
  Tucson Areas), and Part D Elements and Plans for the Metropolitan Phoenix and Tucson Areas.

* * * * *
[FR Doc. 2020-09732 Filed 6-1-20; 8:45 am]
BILLING CODE 6560-50-P


