[Federal Register Volume 87, Number 95 (Tuesday, May 17, 2022)]
[Rules and Regulations]
[Pages 29830-29837]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-10060]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2021-0249; FRL-8724-02-R9]


Rescission of Clean Data Determination and Call for Attainment 
Plan Revision for the Yuma, AZ 1987 PM10 Moderate Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to rescind its previously issued clean data determination (CDD) 
for the Yuma, Arizona ``Moderate'' nonattainment area (Yuma NAA) for 
the 1987 24-hour national ambient air quality standard (NAAQS) for 
particulate matter with an aerodynamic diameter less than or equal to a 
nominal 10 micrometers (PM10) because recent complete, 
quality-assured monitoring data show that the area has subsequently 
violated this NAAQS. We are also determining that the Arizona State 
Implementation Plan (SIP) is substantially inadequate to attain or 
maintain the PM10 standard in the Yuma NAA and calling for 
Arizona to revise the SIP to address this inadequacy.

DATES: This rule is effective June 16, 2022.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R09-OAR-2021-0249. 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 (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 https://www.regulations.gov, 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: John J. Kelly, Air Planning Office 
(AIR-2), EPA Region IX, (415) 947-4151, [email protected].

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

Table of Contents

I. Proposed Action and Re-Opening of Comment Period
II. Public Comments and EPA Responses
III. Environmental Justice Assessment
IV. Final Action
V. Statutory and Executive Order Reviews

I. Proposed Action and Re-Opening of Comment Period

    On June 1, 2021, the EPA proposed to rescind our previously issued 
CDD for the Yuma NAA because recent complete, quality-assured 
monitoring data show that the area has

[[Page 29831]]

subsequently violated the PM10 NAAQS.\1\ We also proposed to 
find that the Arizona SIP is substantially inadequate to attain or 
maintain the PM10 standard and to issue a SIP call requiring 
Arizona to revise its existing SIP to address this inadequacy. In order 
to cure this deficiency, we proposed to require Arizona to submit a 
Moderate nonattainment plan SIP submission meeting applicable 
requirements for such a SIP submission within 18 months of finalizing 
the SIP call. We also proposed to set a new attainment date of no later 
than December 31, 2025, for the 1987 24-hour PM10 NAAQS in 
this area because the original maximum statutory attainment date for 
this area under Clean Air Act (CAA or ``Act'') section 188(c)(1) was 
December 31, 1994 (approximately four years from the original 
designation).\2\ Finally, we proposed to reverse our previous finding 
that the motor vehicle emissions budgets in the Yuma PM10 
Maintenance Plan were adequate for transportation conformity purposes 
pursuant to 40 CFR 93.118(f)(1)(vi). Please refer to our proposed rule 
for background information and additional explanation of the proposed 
actions.
---------------------------------------------------------------------------

    \1\ 86 FR 29219.
    \2\ 86 FR 29221.
---------------------------------------------------------------------------

    The initial public comment period for the proposed rule started on 
June 1, 2021 and ended on July 1, 2021. Due to an inadvertent 
administrative oversight, the EPA did not post all the documents 
contained in the docket until June 23, 2021. On October 19, 2021, the 
EPA re-opened the comment period for the proposed rule for an 
additional 30 days, to allow for a full comment period with access to 
all docket materials.\3\ In response to a comment from the Arizona 
Department of Environmental Quality (ADEQ), we also sought public 
comment on whether we should set a maximum attainment date of December 
31, 2027 (roughly six years from the expected SIP call effective date), 
rather than December 31, 2025 (roughly four years from the expected SIP 
call effective date), for the Yuma NAA, if we were to finalize our 
proposed finding of inadequacy and SIP call.
---------------------------------------------------------------------------

    \3\ 86 FR 57769.
---------------------------------------------------------------------------

    In addition to the two public comment periods described in the 
above paragraphs, the EPA also held a comment period that was announced 
on our Office of Transportation and Air Quality (OTAQ) website.\4\ The 
purpose of this comment period was to invite public comment on our 
proposed reversal of our previous finding that the motor vehicle 
emissions budgets in the Yuma PM10 Maintenance Plan were 
adequate for transportation conformity purposes pursuant to 40 CFR 
93.118(f)(1)(vi). We posted our announcement of the public comment 
period on the OTAQ website on June 4, 2021, and requested comments be 
submitted by July 6, 2021. We also met with the Yuma Interagency Work 
Group on June 22, 2022, to inform them of this proposal.\5\
---------------------------------------------------------------------------

    \4\ https://www.epa.gov/state-and-local-transportation/adequacy-review-state-implementation-plan-sip-submissions-conformity.
    \5\ Memorandum dated January 27, 2022, from John Kelly, EPA 
Region IX, Air and Radiation Division, to Docket ID No. EPA-R09-OAR-
2021-0249.
---------------------------------------------------------------------------

    Finally, on October 21, 2021, EPA Region IX staff met with 
representatives of the Arizona Farm Bureau to discuss issues affecting 
the agricultural sector, including in the Yuma NAA.\6\
---------------------------------------------------------------------------

    \6\ Memorandum dated December 1, 2021, from Cara Gillen, 
Agriculture Advisor, EPA Region IX, Air and Radiation Division, to 
Docket ID No. EPA-R09-OAR-2021-0249.
---------------------------------------------------------------------------

II. Public Comments and EPA Responses

    We did not receive any comments during the comment period announced 
on our OTAQ website. During the two comment periods the EPA announced 
in the Federal Register, we received a total of 13 comment letters from 
the following parties: ADEQ, the Arizona Farm Bureau Federation, the 
Seed Trade Association of Arizona, the Wellton-Mohawk Natural Resource 
Conservation District, the Yuma County Department of Development 
Services, the Yuma County Farm Bureau, the Yuma Fresh Vegetable 
Association, the Yuma Natural Resource Conservation District, and the 
Laguna Natural Resource Conservation District. We summarize and respond 
to these comments below.
    In addition, on October 5, 2021, Senators Kyrsten Sinema and Mark 
Kelly sent a letter to EPA Administrator Michael Regan regarding the 
proposed rule. The EPA's Acting Assistant Administrator for Air, Joe 
Goffman, responded to this letter on November 17, 2021. We have 
included the Senators' letter and the EPA's responses in the docket for 
this action.
    Comment 1: Several commenters expressed opposition to the proposed 
CDD rescission and SIP call, arguing that the EPA and ADEQ should 
instead evaluate whether recent exceedances in the Yuma NAA qualify for 
exclusion under the EPA's Exceptional Events Rule (EER). The commenters 
noted that exceedances of the PM10 NAAQS in the Yuma NAA are 
generally due to high wind events that could qualify as exceptional 
events (EEs). Some of the commenters also asserted that the EPA should 
develop and approve a new EER. Two commenters added that the CAA does 
not mandate that a SIP revision be developed prior to submission of an 
EE demonstration.
    Two commenters quoted 40 CFR part 50 appendix K, section 2.4(a), 
which defines an EE as an uncontrollable event caused by natural 
sources of particulate matter or an event that is not expected to recur 
at a given location and allows for the use of more than three years of 
representative data in calculating a PM10 design value in 
order to reduce the effect of such events.
    In addition, several commenters stated that, after many years of 
stakeholder meetings and studies by ADEQ and independent contractors, 
the sources of PM10 dust in the Yuma NAA are well 
documented. They expressed opposition to any ``reset'' of this previous 
work. Commenters also pointed to controls that have already been 
implemented for specific sources of PM10 in the Yuma NAA.
    Response 1: We agree with commenters that exceedances of the 1987 
24-hour PM10 NAAQS in the Yuma NAA are often associated with 
high wind that could potentially qualify for treatment as natural 
events under the EPA's EER. In order to qualify for such treatment, all 
the applicable criteria under the EER must be met, including a 
demonstration that reasonable control measures were applied at the time 
of the event.\7\ Specifically, for a high wind dust event to qualify as 
a natural event, the state must show that the windblown dust is 
entirely from natural undisturbed lands in the area or that all 
anthropogenic sources are reasonably controlled.\8\ We are not aware of 
any evidence to suggest that windblown dust in the Yuma NAA is entirely 
from natural undisturbed lands. Therefore, in order to meet this 
requirement, the state must provide evidence of the effective 
implementation and enforcement of SIP-approved or other enforceable 
controls on the anthropogenic sources within the state's jurisdictional 
boundaries that cause or contribute to the monitored exceedance or 
violation.\9\
---------------------------------------------------------------------------

    \7\ 40 CFR 50.14(b)(8)(iii).
    \8\ 40 CFR 50.14(b)(5)(ii).
    \9\ 40 CFR 50.14(b)(8)(vii) and (viii)(A)-(C).
---------------------------------------------------------------------------

    In a number of formal and informal communications over the last 
several years, the EPA has indicated to ADEQ that we believe the 
current controls on anthropogenic sources that contribute to the 
exceedances and are within the state's jurisdiction do not fully meet 
the requirements for enforceable, reasonable controls under the EER. In 
2015, based on identified deficiencies in existing

[[Page 29832]]

controls for paved roads, we recommended that ``ADEQ re-direct its 
efforts away from attempts to demonstrate past exceedances as 
exceptional events and towards developing a PM10 State 
Implementation Plan pursuant to CAA Sec. Sec.  110, 182 and 189.'' \10\ 
However, due to the suspension of attainment-related requirements under 
the CDD, ADEQ was not required to develop such a plan. In the absence 
of such a requirement, ADEQ and the EPA have instead worked with 
stakeholders in the Yuma NAA for several years on the development of a 
``prospective assessment'' of reasonable controls for the Yuma NAA.\11\ 
As noted by commenters, through this process ADEQ and stakeholders have 
made significant progress in understanding the sources that contribute 
to exceedances of the PM10 NAAQS in the Yuma NAA.
---------------------------------------------------------------------------

    \10\ Letter dated November 19, 2015, from Elizabeth Adams, 
Acting Director, Air Division, EPA Region IX, to Eric Massey, Air 
Quality Division Director, ADEQ, 3.
    \11\ See, e.g., email dated October 26, 2019, from Meredith 
Kurpius, EPA, to Tim Franquist, ADEQ, subject: ``Yuma 
PM10 EE process.''
---------------------------------------------------------------------------

    In 2020, ADEQ submitted a draft outline of a prospective assessment 
of controls on specific source sectors in the Yuma NAA. The EPA 
provided feedback on this draft, noting that it did not include any 
proposed new requirements to implement ``reasonable controls'' on 
several significant source categories in the area.\12\ We explained 
that, under the EER, the EPA would not be able to concur on 
PM10 exceptional events demonstrations in the Yuma NAA 
without the necessary enforceable and reasonable controls for all 
significant anthropogenic sources under the State's jurisdiction.\13\ 
Therefore, we indicated that it would be necessary for ADEQ to develop 
new or revised rules for these source categories before the EPA would 
be able to concur on exceptional events demonstrations for the Yuma NAA 
and ultimately redesignate the area to attainment.\14\ Following these 
communications, ADEQ, the EPA, and stakeholders have continued to work 
on the development of new and revised rules for the affected source 
categories.
---------------------------------------------------------------------------

    \12\ Letter dated September 10, 2020, from Elizabeth Adams, 
Director, Air and Radiation Division, EPA Region IX, to Misael 
Cabrera, Director, ADEQ.
    \13\ Id.
    \14\ Id.
---------------------------------------------------------------------------

    However, to date, no governmental entity has adopted any new 
enforceable requirement to implement controls on any PM10 
sources in the Yuma NAA. While we appreciate the efforts of various 
parties to voluntarily implement control measures, such as street 
sweeping and agricultural dust controls, the implementation of such 
voluntary measures does not meet the CAA and EER requirements for 
enforceable control measures. In the absence of enforceable, reasonable 
controls measures for all significant anthropogenic sources under the 
State's jurisdiction, high wind events in the Yuma NAA would not 
qualify for treatment as EEs under the EER.
    We recognize the commenters' frustration regarding the lack of 
progress toward redesignation of the Yuma NAA to attainment of the 
PM10 NAAQS. However, we do not agree with the suggestion 
that rescission of the CDD and issuance of a SIP call constitutes a 
``reset'' of the current process. On the contrary, by establishing firm 
deadlines by which enforceable control measures must be submitted to 
the EPA and implemented by the relevant sources, we believe this action 
may serve to expedite implementation of enforceable, reasonable 
controls, which is a prerequisite to the EPA's concurrence on EE 
demonstrations. We also note that the EPA is not permitted to approve a 
redesignation to attainment unless the EPA determines that 
``improvement in air quality is due to permanent and enforceable 
reductions in emissions,'' and that a plan demonstrating the area will 
continue to maintain the NAAQS is in place, among other 
requirements.\15\
---------------------------------------------------------------------------

    \15\ CAA section 107(d)(3)(E).
---------------------------------------------------------------------------

    With respect to the suggestion that the EPA develop a new EER, we 
note that the EER was last revised in 2016 and the EPA has concurred on 
EE demonstrations submitted by many states, including Arizona, under 
the provisions of the revised EER. The commenters did not indicate 
which aspect of the EER they believe should be revised, or why they 
believe the rule's current provisions are problematic. Regardless, any 
potential revision to the EER is outside the scope of this current 
rulemaking.
    If, by a ``new EER,'' commenters are referring to submittal of new 
EE demonstrations by ADEQ, we do not expect that we would be able to 
concur upon such demonstrations at this time due to the lack of 
enforceable, reasonable controls, as described in the preceding 
paragraphs. Furthermore, while we agree that the CAA does not require 
that a state develop a SIP submission before an EE demonstration, the 
EPA cannot concur on such a demonstration under the EER unless 
enforceable, reasonable controls are in place at the time of the event. 
Under the EER, the EPA considers enforceable control measures 
implemented in accordance with a SIP to be reasonable controls, if they 
were approved within five years of the event and address all sources 
necessary to fulfill the applicable CAA requirements for the SIP.\16\ 
Therefore, a SIP submission including control measures to address the 
anthropogenic sources contributing to the monitored exceedance would 
help to ensure that the EER provisions were met for any future EE 
demonstrations for the relevant monitor and NAAQS.
---------------------------------------------------------------------------

    \16\ 40 CFR 50.14(b)(8)(v).
---------------------------------------------------------------------------

    Finally, we note that 40 CFR part 50 appendix K section 2.4(a) was 
promulgated in 1987 as part of the original implementing regulations 
for the 1987 PM10 NAAQS.\17\ It has not been revised since 
Congress amended the CAA to address EEs in CAA section 319 in 2005,\18\ 
or since the EER was promulgated in 2007 \19\ and revised in 2016.\20\ 
The EER includes a more detailed definition of an EE than the 
definition cited by the commenters. The EER definition specifies, among 
other things, that an EE must be ``not reasonably controllable or 
preventable'' and must ``be determined by the Administrator in 
accordance with 40 CFR 50.14 to be an exceptional event.'' \21\ As 
described in the preceding paragraphs, we expect that we would not be 
able to concur on an EE demonstration for the Yuma NAA under 40 CFR 
50.14 at this time due to a lack of enforceable, reasonable controls on 
sources within the State's jurisdiction.
---------------------------------------------------------------------------

    \17\ 52 FR 24634, 24667 (July 1, 1987).
    \18\ Public Law 109-59, title VI, Sec.  6013(a), August 10, 
2005, 119 Stat. 1882 (codified in CAA section 319(b)).
    \19\ 72 FR 13560 (March 22, 2007).
    \20\ 81 FR 68216.
    \21\ 40 CFR 50.1(j).
---------------------------------------------------------------------------

    Furthermore, as noted in our proposal, the Yuma NAA has had a 
violating design value for the 1987 24-hour PM10 NAAQS every 
year since 2006.\22\ Therefore, even if we were to consider more than 
three years of representative data pursuant to 40 CFR part 50 appendix 
K section 2.4(a), the Yuma NAA would still be violating the 
PM10 NAAQS.
---------------------------------------------------------------------------

    \22\ 86 FR 29221 (citing EPA, Air Quality System (AQS) ``Design 
Value Report,'' dated March 3, 2021.)
---------------------------------------------------------------------------

    Comment 2: A few commenters noted that much of the land in the Yuma 
NAA is owned by the federal government, the state government, or local 
tribes. They indicated that ADEQ cannot control sources of dust on 
these lands. Commenters also stated that uncontrolled dust enters the 
Yuma NAA from Mexico and Imperial County,

[[Page 29833]]

California, which are outside of ADEQ's jurisdiction.
    Response 2: We agree with the commenters' assertion that ADEQ does 
not have authority to regulate PM10 emissions in Mexico or 
California, on any Indian reservation land, or in any other area where 
a tribe has jurisdiction. Under the EER, the State is not required to 
demonstrate that reasonable controls were in place for emissions-
generating activity outside of the State's jurisdictional 
boundaries.\23\ The CAA and the EPA's Tribal Authority Rule also 
contain provisions addressing emissions from sources on tribal land and 
other states and countries in relation to SIPs. This action will not 
affect or alter ADEQ's authorities or obligations with respect to such 
emissions outside of its jurisdiction.
---------------------------------------------------------------------------

    \23\ 40 CFR 50.14(b)(8)(vii).
---------------------------------------------------------------------------

    We do not agree with the commenters' assertion that ADEQ lacks 
authority to regulate sources of emissions on state or federal 
government land. Under Arizona State law, rules adopted by ADEQ apply 
throughout the State.\24\ Furthermore, under CAA section 118, federal 
agencies must comply with all federal, state, interstate, and local 
requirements concerning air pollution control, unless expressly 
exempted by the President.\25\ Therefore, in the absence of a specific 
exemption, or an explicit preemption, air pollution control rules 
adopted by ADEQ apply to both governmental and nongovernmental 
entities.
---------------------------------------------------------------------------

    \24\ ARS 49-106. Statewide application of rules.
    \25\ 42 U.S.C. 7418(a) and (b).
---------------------------------------------------------------------------

    Comment 3: One commenter expressed concern that data collected at 
the Yuma NAA monitoring station are not representative of ambient 
PM10 concentrations in the Yuma NAA. The commenter pointed 
to differences in reported concentrations between the current and 
previous locations of the monitoring station and to localized dusty 
conditions near the current monitoring site.
    Response 3: The commenter appears to be referring to the Yuma 
Supersite, which is the site of the only regulatory PM10 
monitor in the Yuma NAA. ADEQ's annual monitoring network plans provide 
information about the location and characteristics of this monitor.\26\ 
As noted in our proposal, the EPA found that the 2018-2020 annual 
network plans (ANPs) submitted by ADEQ met the relevant PM10 
requirements under 40 CFR part 58.\27\ We have also approved ADEQ's 
2021 ANP with respect to these requirements.\28\ These ANPs document 
that the monitoring objective of the Yuma Supersite PM10 
monitor is NAAQS comparison and its site type is population-oriented, 
\29\ meaning that it is located to measure typical concentrations in 
areas of high population density.\30\ Consistent with this objective 
and site type, the monitor is sited at the neighborhood scale,\31\ 
meaning that it represents particulate matter concentrations, as well 
as land use and land surface characteristics, within an area of 
approximately a few kilometers.\32\ ADEQ's selection of this monitoring 
site, and the EPA's approval of the ANPs including this site, document 
that the monitor is properly sited and the data is representative of 
ambient PM10 levels in this area.
---------------------------------------------------------------------------

    \26\ See, e.g., ADEQ 2020 Annual Network Plan, Appendix C, 15.
    \27\ 86 FR 29220.
    \28\ Letter dated October 29, 2021, from Gwen Yoshimura, Section 
Chief, Air Quality Analysis Office, EPA Region 9, to Daniel 
Czecholinski, Director, Air Quality Division, ADEQ.
    \29\ See, e.g., ADEQ 2020 Annual Network Plan, Appendix C, 15.
    \30\ 40 CFR part 58, Appendix D, section 1.1.1(b).
    \31\ See, e.g., ADEQ 2020 Annual Network Plan, Appendix C, 15.
    \32\ 40 CFR part 58, Appendix D, section 4.6(b)(3).
---------------------------------------------------------------------------

    The fact that the current monitor may record higher concentrations 
of PM10 than the previous monitor, which was located on the 
roof of the Yuma Courthouse,\33\ does not suggest that the monitor is 
improperly sited, given its monitoring objective, site type, and scale 
of representativeness. We also note that, even before the State 
relocated the PM10 monitor to the Yuma Supersite, the Yuma 
NAA had a violating design value every year between 2006 and 2010, 
based on monitoring data from the Courthouse monitor.\34\ Therefore, we 
do not agree with the commenter's suggestion that data from the Yuma 
Supersite may be unrepresentative of ambient PM10 
concentrations in the Yuma NAA.
---------------------------------------------------------------------------

    \33\ See, e.g., ADEQ 2009 Annual Network Plan, 122.
    \34\ EPA, AQS ``Design Value Report,'' dated March 26, 2021.
---------------------------------------------------------------------------

    Comment 4: One commenter asserted that, in proposing to rescind the 
CDD and issue a SIP call, the EPA failed to consider the cost and 
effectiveness of additional regulation that this action will impose on 
the local economy. The commenter also stated that it supports 
affordable effective measures that significantly reduce 
PM10, but not ``measures put in place for regulatory 
purposes only; measures that are not effective, cannot be proven to 
work or only address an insignificant portion of PM10.''
    Response 4: We disagree with the commenter that the EPA should 
consider costs prior to finalizing this action. The EPA interprets the 
CAA's nonattainment planning requirements as permitting the Agency to 
issue a CDD, which suspend a state's requirement to submit certain 
attainment planning requirements for as long as an area is attaining 
the NAAQS. In this case, the area is factually no longer attaining the 
NAAQS, and it is therefore not reasonable to interpret the Act as 
permitting the suspension of mandatory nonattainment area plan 
requirements applicable to the State to provide for the attainment of 
the PM10 NAAQS in this area. We therefore do not agree with 
the commenter that the EPA may consider cost or effectiveness of 
regulation in rescinding the CDD, where the area is no longer attaining 
the NAAQS.
    Further, the rescission of the CDD and issuance of a SIP call does 
not in and of itself impose any new costs or establish any new control 
measures. ADEQ will determine how to revise its SIP to meet Moderate 
area nonattainment plan requirements in response to the SIP call. The 
applicable requirements for a Moderate PM10 NAA include 
implementation of reasonably available control measures (RACM) and 
reasonably available control technology (RACT) for sources of 
PM10 and any necessary PM10 precursors.\35\ The 
EPA interprets the PM10 RACM requirement to allow states to 
exclude de minimis source categories, and to consider both 
technological feasibility and the cost of control in determining which 
control measures are reasonably available, subject to the overarching 
requirement to provide for attainment of the NAAQS in the area.\36\ 
Therefore it would be inappropriate and premature for the EPA to 
analyze the potential costs of controls prior to ADEQ's development of 
a SIP submission.
---------------------------------------------------------------------------

    \35\ CAA sections 172(c)(1) and 189(a)(1)(C).
    \36\ See, e.g., General Preamble, 57 FR 13498, 13540-13541 
(April 16, 1992).
---------------------------------------------------------------------------

    Comment 5: One commenter asserted that if the monitoring station 
measurements continue to increase due to naturally occurring 
PM10 or unrepresentative, localized dusty conditions near 
the station, there is the potential for ever-changing controls such as 
contingency measures, findings of SIP inadequacy, or changes in 
designation.
    Response 5: Please refer to Response 3 concerning the 
representativeness of the Yuma Supersite PM10 monitor. With 
respect to potential increases in ``naturally occurring'' 
PM10, as discussed in Response 1, for a high wind dust event 
to qualify as a natural event, the State must show that the windblown 
dust is entirely from natural

[[Page 29834]]

undisturbed lands in the area or that all anthropogenic sources are 
reasonably controlled.
    Concerning contingency measures, we note that such measures are a 
required element of a Moderate area nonattainment plan that the State 
must submit.\37\ However, such contingency measures would only be 
triggered if the EPA finds that the area failed to make reasonable 
further progress or to attain the NAAQS by the new attainment date. 
Prior to making a finding of failure to attain, we would consider any 
EE demonstrations submitted by ADEQ under the criteria set forth in the 
EER. If the State has met the criteria for exceptional events, 
including the requirement for reasonable controls on anthropogenic 
sources, then the EPA would be able to concur upon the demonstrations 
and exclude the relevant data.
---------------------------------------------------------------------------

    \37\ CAA section 172(c)(9).
---------------------------------------------------------------------------

    With respect to a finding of SIP substantial inadequacy, we are 
determining that the Arizona SIP is substantially inadequate to attain 
the PM10 NAAQS in the Yuma NAA. This determination is based 
on 15 years of monitoring data showing violations of the 
PM10 NAAQS, rather than any short-term or temporary increase 
in PM10 concentrations. To the extent that there could be a 
future finding of substantial inadequacy in the Arizona SIP, that would 
be for the EPA to determine based on its assessment of the relevant 
facts at such time, not in this action. Section 110(k)(5) explicitly 
provides that the EPA may elect to issue a SIP call ``whenever'' it 
determines that a state's existing SIP has substantial inadequacy.
    Regarding the commenter's concerns about the Yuma NAA designation 
changing, the Yuma NAA is already designated nonattainment. That 
designation is not changing in this action. Any future change in 
designation for this area for purposes of the 1987 PM10 
NAAQS would be a redesignation from nonattainment to attainment. In 
order to redesignate the area to attainment, the EPA would have to 
determine, among other things, that the area had attained the 
PM10 NAAQS due to reductions in emissions resulting from 
permanent and enforceable control measures.\38\ To the extent that the 
commenter is concerned about the potential for changes in designation 
in general, this is a feature of the CAA. Pursuant to section 107(d)(3) 
either the State or the EPA can initiate a change in designation 
through the proper process when the facts justify such a change.
---------------------------------------------------------------------------

    \38\ CAA section 107(d)(3)(E)(iii).
---------------------------------------------------------------------------

    Finally, if by ``designation'' the commenter intended to say 
``classification,'' the EPA agrees that further controls could be 
required should the area fail to meet its new Moderate area attainment 
date. Such failure could lead to a reclassification to Serious 
nonattainment. This reclassification would require the state to meet 
additional more stringent Serious area requirements. Again, prior to 
making a determination that the area failed to attain by the applicable 
attainment date, we would consider any EE demonstrations submitted by 
ADEQ under the criteria set forth in the EER.
    Comment 6: Three commenters recommended that, concurrent with 
review of potential EEs, ADEQ develop and submit to the EPA a SIP 
revision in case there are not enough qualifying EER events to put the 
Yuma NAA back into compliance. They stated that they did not want a 
repeat of the August 2006 Yuma SIP that was submitted and recalled by 
ADEQ.
    Response 6: This final SIP call will require ADEQ to submit a SIP 
revision, which, as discussed in Response 1, may also help ADEQ to meet 
the requirement for reasonable controls under the EER. We interpret the 
commenters' reference to the ``August 2006 Yuma SIP'' to mean the 
``Yuma Maintenance Plan'' submitted by ADEQ on August 17, 2006 (Yuma 
Maintenance Plan). We note that ADEQ has not withdrawn this SIP 
revision and the EPA has not taken action to approve or disapprove this 
SIP revision at this time. The EPA did find the motor vehicle emissions 
budgets in the Yuma Maintenance Plan adequate for transportation 
conformity purposes,\39\ but, as discussed in Section IV of this 
document, we are now reversing that finding.
---------------------------------------------------------------------------

    \39\ 72 FR 32295 (June 12, 2007).
---------------------------------------------------------------------------

    Comment 7: Two commenters expressed support for a maximum 
attainment date of December 31, 2027, rather than the December 31, 2025 
date proposed by the EPA. Both commenters asserted that a period of 
approximately six years was necessary to fully implement control 
measures in the area in time to achieve three years of clean data prior 
to the attainment date. One commenter elaborated on the statutory basis 
for such a deadline, noting that CAA section 188(c)(1) establishes two 
alternative attainment deadlines for Moderate PM10 
nonattainment areas: Four years after designation for areas designated 
in 1990, and six years after designation for all other areas. The 
commenter asserted that the CAA does not require the EPA to set the new 
maximum attainment date according to the shorter deadline and that the 
six-year deadline would be more appropriate for the Yuma NAA. The 
commenter then provided additional background concerning the history of 
the EPA's PM10 nonattainment requirements and noted that the 
four-year deadline for areas designated under CAA 107(d)(4) was 
specifically designed for areas that had been required to submit SIPs 
containing attainment demonstrations prior to enactment of the CAA 
Amendments of 1990. The commenter argued that application of this 
deadline to areas subject to subsequent SIP calls requiring submission 
of a new attainment demonstration would be inappropriate and that such 
areas should be given the normal six years to attain.
    Response 7: We agree with the commenters that an attainment date of 
as expeditiously as possible, but not later than December 31, 2027, is 
appropriate for the Yuma NAA. Because the original attainment date of 
December 31, 1994, has elapsed, CAA section 110(k)(5) provides the EPA 
with discretion to adjust this date ``as appropriate.'' We proposed a 
maximum attainment date of December 31, 2025 (approximately four years 
from our expected final action) because the Yuma NAA's original maximum 
attainment date was approximately four years from its designation as a 
NAA in 1990. However, as noted by one of the commenters, the December 
31, 1994 date applied only to areas that were designated nonattainment 
under CAA section 107(d)(4), i.e., those areas that had either been 
identified as ``Group I areas'' because they had a high probability of 
violating the NAAQS, or that had, in fact, violated the NAAQS prior to 
January 1, 1989. Most of these areas, including the Yuma NAA, which had 
been identified as a Group I area,\40\ were already required to have 
submitted attainment demonstrations.\41\ In contrast, for newly 
designated NAAs which were not previously required to submit a 
nonattainment plan for the 1987 PM10 NAAQS, CAA section 
188(c)(1) set a maximum attainment date of ``as expeditiously as 
practicable but no later than the end of the sixth calendar year after 
the area's designation as nonattainment.'' The

[[Page 29835]]

EPA acknowledges, as noted by the commenter, that areas such as Yuma 
that were designated nonattainment prior to 1990 would therefore have 
had a shorter maximum period of time to attain the NAAQS, i.e., only 
four years from the enactment of section 188(c) to 1994, whereas newly 
designated areas would have a maximum outer attainment date of six 
years.
---------------------------------------------------------------------------

    \40\ 52 FR 29383 (August 7, 1987).
    \41\ See 52 FR 24672, 24681 (July 1, 1987) (Group I SIPs ``will 
have to contain full PM10 control strategies including a 
demonstration of attainment . . .'' and Group II SIPS must include 
an enforceable commitment to ``adopt and submit to EPA a 
PM10 control strategy that assures attainment . . .'')
---------------------------------------------------------------------------

    In this action, however, the EPA must determine an appropriate new 
attainment date, as contemplated in CAA section 110(k)(5), due to the 
passage of time since the nonattainment designation of the Yuma NAA and 
intervening events. Because the 2006 CDD suspended the obligation for 
development and submittal of an attainment demonstration, the Yuma NAA 
is in a different position now than it was in 1990, when an attainment 
demonstration had already been required for the area. Therefore, after 
consideration of comments on this issue, we agree that an attainment 
date of as expeditiously as practicable but no later than December 31, 
2025, is not appropriate for the Yuma NAA. We also note that, if we 
were newly designating the Yuma NAA as nonattainment for this NAAQS, 
the maximum attainment date would be December 31, 2028 (i.e., the end 
of the sixth calendar year after the area's designation as 
nonattainment). However, given that the area has been designated 
nonattainment for more than thirty years and ADEQ has already 
undertaken substantial work to characterize the sources contributing to 
nonattainment in the Yuma NAA and to develop rules to regulate sources 
within its jurisdiction, we do not consider it appropriate to provide 
six full calendar years before the maximum attainment date.
    In determining the ``appropriate'' attainment date for the Yuma NAA 
under CAA section 110(k)(5), we have considered both the provisions of 
188(c)(1) (described above) and the provisions of CAA section 
172(a)(2)(A), which sets attainment dates for all nonattainment areas, 
except those for which attainment dates are specifically provided under 
other provisions of title I, part D.\42\ In particular, section 
172(a)(2)(A) provides a default attainment date of as expeditiously as 
practicable, but no later than five years from the nonattainment 
designation, but permits the EPA to extend this date, as appropriate, 
up to 10 years from the date of designation as nonattainment, 
considering the severity of nonattainment and the availability and 
feasibility of pollution control measures.
---------------------------------------------------------------------------

    \42\ CAA section 172(a)(2)(D).
---------------------------------------------------------------------------

    Although these provisions of section 172(a)(2)(A) would normally be 
superseded by 188(c)(1) for newly designated PM10 NAAs, in 
this instance the maximum statutory attainment dates of section 
188(c)(1) for the Yuma NAA have long since passed. In such 
circumstances, the EPA considers it reasonable to look to section 
172(a)(2)(A) for relevant guideposts, along with 188(c)(1), in setting 
an appropriate maximum attainment deadline under 110(k)(5) for the Yuma 
NAA, as if the area were newly nonattainment. Because the Yuma NAA 
remains classified as Moderate and because additional controls for the 
Yuma NAA are clearly available and feasible, we do not believe a 
lengthy extension (i.e., a year or more) beyond the five-year deadline 
set forth in section 172(a)(2)(A) is appropriate. However, we find that 
an extension of several months beyond the five-year default maximum 
attainment date is appropriate in order to align the maximum attainment 
date with the end of the calendar year, consistent with end-of-year 
attainment dates specified for PM10 in CAA section 
188(c)(1). In this case, the triggering action for the new attainment 
plan requirements is the final CDD rescission and SIP call, rather than 
the initial designation of the area as nonattainment. The final 
effective date for these actions is June 16, 2022. Therefore, we are 
finalizing a maximum attainment date of December 31, 2027, for the Yuma 
NAA pursuant to CAA section 110(k)(5).

III. Environmental Justice Assessment

    To identify environmental burdens and susceptible populations in 
underserved communities in the Yuma NAA, and to examine the 
implications of our proposed action on these communities, we performed 
a screening-level analysis using the EPA's environmental justice (EJ) 
screening and mapping tool (``EJSCREEN'').\43\ Our screening-level 
analysis included multiple environmental and demographic indicators, 
including the EJSCREEN ``Demographic Index,'' which is the average of 
an area's percent minority and percent low income populations, i.e., 
the two demographic indicators explicitly named in Executive Order 
12898. The Demographic Index for the Yuma NAA exceeds the 75th 
percentile, compared to the United States as a whole.\44\
---------------------------------------------------------------------------

    \43\ EJSCREEN provides a nationally consistent dataset and 
approach for combining environmental and demographic indicators. 
EJSCREEN is available at https://www.epa.gov/ejscreen/what-ejscreen. 
The EPA used EJSCREEN to obtain environmental and demographic 
indicators and EJ Indexes representing the Yuma NAA. Our analysis is 
included in the file titled ``Environmental Justice in Yuma 1987 
PM10 Nonattainment Area.pdf,'' available in the rulemaking docket 
for this action.
    \44\ EJSCREEN reports environmental indicators (e.g., air toxics 
cancer risk, lead paint exposure, and traffic proximity and volume) 
and demographic indicators (e.g., people of color, low income, and 
linguistically isolated populations). Depending on the indicator, a 
community that scores highly for an indicator may have a higher 
percentage of its population within a demographic group or a higher 
average exposure or proximity to an environmental health hazard 
compared to the state, region, or national average. EJSCREEN also 
reports EJ indexes, which are combinations of a single environmental 
indicator with the EJSCREEN Demographic Index. For additional 
information about environmental and demographic indicators and EJ 
indexes reported by EJSCREEN, see EPA, ``EJSCREEN Environmental 
Justice Mapping and Screening Tool--EJSCREEN Technical 
Documentation,'' section 2 (September 2019).
---------------------------------------------------------------------------

    As discussed in the EPA's EJ technical guidance, people of color 
and low-income populations often experience greater exposure and 
disease burdens than the general population, which can increase their 
susceptibility to adverse health effects from environmental 
stressors.\45\ Underserved communities can also experience reduced 
access to health care, nutritional, and fitness resources, further 
increasing their susceptibility.
---------------------------------------------------------------------------

    \45\ EPA, ``Technical Guidance for Assessing Environmental 
Justice in Regulatory Analysis,'' section 4 (June 2016).
---------------------------------------------------------------------------

    This final action requires the State of Arizona to submit to the 
EPA a SIP revision providing for attainment of the 1987 24-hour 
PM10 NAAQS in the Yuma NAA. The development of required SIP 
elements will result in air quality improvements and human health 
benefits for all Yuma NAA residents, including those in underserved 
communities. Conversely, failure to make the determinations in this 
final action could inhibit or delay the attainment of the 1987 24-hour 
PM10 NAAQS in the Yuma NAA, which could negatively impact 
health effects for all Yuma NAA residents and could perpetuate the EJ 
concerns potentially faced by communities in these areas, including 
Cocopah and Fort Yuma (Quechan) tribes, which have lands within the 
Yuma NAA. Thus, we believe that finalizing our proposed action will 
help to reduce disproportionate health, environmental, economic, and 
climate impacts on disadvantaged communities in the Yuma NAA and that 
this action will not have disproportionately high and adverse human 
health or environmental effects on minority populations, low-income 
populations and/or indigenous peoples, as specified in Executive Order 
12898.

[[Page 29836]]

IV. Final Action

    The EPA has evaluated the comments on the proposed action. We have 
also reviewed the most recent monitoring data from the Yuma Supersite 
PM10 monitor. Based on certified data from 2020, the monitor 
had a 2018-2020 design value of 5.4.\46\ Based on preliminary data from 
2021, the monitor had a 2019-2021 design value of 2.7.\47\ These design 
values show continued violations of the 1987 24-hour PM10 
NAAQS and are therefore consistent with our proposed actions. Taking 
into consideration these data, and for the reasons described in the 
proposal and in our responses to comments in section II of this 
document, we conclude that it is appropriate to finalize the proposed 
CDD rescission and SIP call. Therefore, we are finalizing the 
rescission of the 2006 CDD for the Yuma NAA and reinstating the 
requirements that were suspended under that CDD.
---------------------------------------------------------------------------

    \46\ EPA, AQS, 2020 ``Design Value Report,'' dated January 26, 
2022.
    \47\ EPA, AQS, 2021 preliminary ``Design Value Report,'' dated 
January 26, 2022.
---------------------------------------------------------------------------

    We are also finding, pursuant to CAA section 110(k)(5), that the 
Arizona SIP is substantially inadequate to attain or maintain the 1987 
24-hour PM10 NAAQS in the Yuma NAA. In order to address this 
inadequacy, we are issuing a SIP call under CAA section 110(k)(5), 
requiring the State to submit a SIP revision meeting the applicable 
nonattainment plan requirements of the CAA for Moderate PM10 
NAAs.\48\ These requirements include: (i) An approved permit program 
for construction of new and modified major stationary sources; \49\ 
(ii) 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; \50\ (iii) provisions 
for the implementation of RACM and RACT; \51\ (iv) quantitative 
milestones that will be used to evaluate compliance with the 
requirement to demonstrate reasonable further progress (RFP); \52\ (v) 
evaluation and regulation of PM10 precursors; \53\ (vi) a 
description of the expected annual incremental reductions in emissions 
that will demonstrate RFP; \54\ (vii) emissions inventories, as 
necessary; \55\ (viii) other control measures (besides RACM and RACT) 
as may be needed for attainment; \56\ (ix) contingency measures,\57\ 
and (x) a motor vehicle emissions budget for the purpose of determining 
the conformity of transportation programs and plans developed by the 
metropolitan planning organization for the area.\58\ The EPA's 
longstanding guidance on these statutory requirements is embodied in 
the ``The General Preamble for Implementation of Title I of the Clean 
Air Act (CAA) Amendments.'' \59\
---------------------------------------------------------------------------

    \48\ See CAA section 110(k)(5) (``Any finding under this 
paragraph shall, to the extent the Administrator deems appropriate, 
subject the State to the requirements of this chapter to which the 
State was subject when it developed and submitted the plan for which 
such finding was made . . .'')
    \49\ CAA section 189(a)(1)(A). On November 2, 2015, the EPA 
published a final limited approval and limited disapproval of 
revisions to ADEQ's new source review permitting rules. 80 FR 67319. 
On May 4, 2018, the EPA approved additional rule revisions to 
address many of the deficiencies identified in the 2015 action. 83 
FR 19631. Accordingly, we do not expect that any revisions to ADEQ's 
permit program would be necessary to address this requirement.
    \50\ CAA section 189(a)(1)(B).
    \51\ CAA sections 172(c)(1) and 189(a)(1)(C).
    \52\ CAA section 189(c). Consistent with the General Preamble, 
57 FR 13539, the starting point for counting the three-year periods 
in 189(c)(1) will be the due date for the SIP submittal, i.e., 18 
months from this final action.
    \53\ CAA section 189(e).
    \54\ CAA section 172(c)(2).
    \55\ CAA section 172(c)(3).
    \56\ CAA section 172(c)(6).
    \57\ CAA section 172(c)(9).
    \58\ 40 CFR 93.102(b)(1).
    \59\ 57 FR 13498 (April 16, 1992).
---------------------------------------------------------------------------

    We are requiring Arizona to submit this Moderate nonattainment plan 
SIP submission within 18 months of the effective date of this final 
action. We are establishing an attainment date for the 1987 
PM10 NAAQS in the Yuma NAA of as expeditiously as 
practicable but no later than December 31, 2027. Consistent with this 
attainment date, implementation of RACM/RACT will be required no later 
than January 1, 2027. Furthermore, as discussed in Response 1, in order 
for exceedances associated with high wind events to qualify for 
exclusion under the EER, the state must provide evidence of the 
effective implementation and enforcement of SIP-approved or other 
enforceable controls on the anthropogenic sources within the State's 
jurisdictional boundaries that cause or contribute to the monitored 
exceedance or violation. Given the prevalence of high wind events in 
the Yuma NAA and the fact that PM10 design values are based 
on three years of ambient monitoring data, we expect that ADEQ would 
need to require implementation of reasonable controls on these sources 
no later than January 1, 2025, in order for the Yuma NAA to attain the 
PM10 NAAQS by December 31, 2027.
    Finally, we are reversing our previous adequacy finding for the 
motor vehicle emissions budgets in the Yuma Maintenance Plan to a 
finding of inadequacy pursuant to 40 CFR 93.118(f)(1)(vi). This 
reversal will require transportation agencies to determine conformity 
using interim emission tests pursuant to 40 CFR 93.119, instead of the 
current practice of using the past maintenance plan motor vehicle 
emissions budgets as part of a budget test.

V. Statutory and Executive Order Reviews

    This action is a determination that the Yuma NAA is no longer 
attaining the 1987 p.m.10 NAAQS, based on the EPA's review 
of air quality data, and a SIP call under section 110(k)(5) of the CAA. 
Upon a finding that a SIP is deficient, section 110(k)(5) of the CAA 
directs the Agency to require the state to correct the deficiency. 
Therefore, this action does not impose additional requirements beyond 
those required by the CAA itself. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Will not have disproportionately high and adverse human 
health or environmental effects on minority populations, low-income 
populations and/or indigenous peoples, as specified in Executive Order 
12898 (59 FR 7629, February 16, 1994) and discussed in Section III of 
this document.

[[Page 29837]]

    In addition, this action does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP obligations discussed herein do not apply to Indian 
tribes and thus this action will not impose substantial direct costs on 
tribal governments or preempt tribal law. Nonetheless, the EPA intends 
to notify the Cocopah and Fort Yuma (Quechan) tribes, which have lands 
within the Yuma NAA and were identified in our EJ screening analysis 
noted in Section III of this document.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. The EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
     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 July 18, 2022. Filing a petition 
for reconsideration by the Administrator of this final rule does not 
affect the finality of this action 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, Particulate matter, Reporting 
and recordkeeping requirements.

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

    Dated: May 5, 2022.
Martha Guzman Aceves,
Regional Administrator, Region IX.
    For the reasons stated in the preamble, the EPA amends chapter I, 
title 40 of the Code of Federal Regulations 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 52.126 is amended by adding paragraph (d) to read as 
follows:


Sec.  52.126  Control strategy and regulations: Particulate matter.

* * * * *
    (d) Pursuant to CAA section 110(k)(5), the State of Arizona is 
required to submit a revision to the Arizona SIP for the Yuma 
PM10 nonattainment area (NAA) to the EPA by November 17, 
2023. The SIP revision must, among other elements, provide for 
attainment of the 24-hour PM10 NAAQS in the Yuma NAA as 
expeditiously as practicable but no later than December 31, 2027.

[FR Doc. 2022-10060 Filed 5-16-22; 8:45 am]
BILLING CODE 6560-50-P


