[Federal Register Volume 87, Number 20 (Monday, January 31, 2022)]
[Rules and Regulations]
[Pages 4805-4812]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-01595]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2021-0078; FRL-8726-02-R9]


Finding of Failure To Attain the 2008 Lead and 2010 Sulfur 
Dioxide Standards; Arizona; Hayden and Miami Nonattainment Areas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is determining that 
the Hayden lead (Pb) nonattainment area (NAA) failed to attain the 2008 
Pb primary and secondary national ambient air quality standards (NAAQS 
or ``standards'') by the applicable attainment date of October 3, 2019. 
The EPA is also determining that the Hayden and Miami sulfur dioxide 
(SO<INF>2</INF>) NAAs failed to attain the 2010 1-hour SO<INF>2</INF> 
primary NAAQS by the applicable attainment date of October 4, 2018. As 
a result of these determinations, the State of Arizona is required to 
submit by January 31, 2023, revisions to the Arizona State 
implementation plan (SIP) that, among other elements, provide for 
expeditious attainment of the Pb NAAQS in the Hayden Pb NAA and the 
SO<INF>2</INF> NAAQS in the Hayden and Miami SO<INF>2</INF> NAAs by 
January 31, 2027.

DATES: This rule is effective March 2, 2022.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R09-OAR-2021-0078. 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: Ben Leers, Air Planning Office (AIR-
2), EPA Region IX, (415) 947-4279, <a href="/cdn-cgi/l/email-protection#cc80a9a9bebfe28ea9a28ca9bcade2aba3ba"><span class="__cf_email__" data-cfemail="014d646473722f43646f416471602f666e77">[email protected]</span></a>.

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

Table of Contents

I. Background
II. Public Comments and Responses
III. Environmental Justice Considerations
IV. Final Action
V. Statutory and Executive Order Reviews

I. Background

    On May 10, 2021, the EPA proposed to determine that the Hayden Pb 
NAA failed to attain the 2008 Pb primary and secondary NAAQS \1\ by the 
applicable

[[Page 4806]]

attainment date of October 3, 2019, based upon monitored air quality 
data from November 2015 to December 2018.\2\ In the May 10, 2021 
action, the EPA also proposed to determine that the Hayden and Miami 
SO<INF>2</INF> NAAs failed to attain the 2010 1-hour SO<INF>2</INF> 
primary NAAQS \3\ by the applicable attainment date of October 4, 2018, 
based upon monitored air quality data from January 2015 to December 
2017. The Hayden Pb and SO<INF>2</INF> NAAs include parts of Gila and 
Pinal counties and exclude the parts of Indian country within the 
areas. The Miami SO<INF>2</INF> NAA includes parts of Gila County and 
excludes parts of Indian country within the area.\4\
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    \1\ The EPA first established primary and secondary Pb standards 
in 1978 at 1.5 micrograms per cubic meter ([mu]g/m\3\) as a 
quarterly average. 43 FR 46246 (October 5, 1978). Based on updated 
health and scientific data in 2008, the EPA revised the Federal Pb 
standards to 0.15 [mu]g/m\3\ and revised the averaging time for the 
standards. 73 FR 66964 (November 12, 2008). The EPA established 
primary and secondary standards at the same level for the 2008 Pb 
NAAQS. Primary standards provide public health protection, including 
protecting the health of ``sensitive'' populations such as 
asthmatics, children, and the elderly. Secondary standards provide 
public welfare protection, including protection against decreased 
visibility and damage to animals, crops, vegetation, and buildings. 
Because the primary and secondary Pb standards are the same, we 
refer to them hereafter in this document using the singular ``Pb 
standard'' or ``Pb NAAQS.''
    \2\ 86 FR 24829.
    \3\ The EPA first established primary SO<INF>2</INF> standards 
in 1971 at 0.14 parts per million (ppm) over a 24-hour averaging 
period and 0.3 ppm over an annual averaging period. 36 FR 8186 
(April 30, 1971). In June 2010, the EPA revised the NAAQS for 
SO<INF>2</INF> to provide increased protection of public health, 
providing for revocation of the 1971 primary annual and 24-hour 
SO<INF>2</INF> standards for most areas of the country following 
area designations under the new NAAQS. 40 CFR 50.4(e). The 2010 
NAAQS is 75 parts per billion (equivalent to 0.075 parts per 
million) over a 1-hour averaging period. 75 FR 35520 (June 22, 
2010).
    \4\ For exact descriptions of the Hayden and Miami 
SO<INF>2</INF> NAAs, refer to 40 CFR 81.303.
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    The proposed rule provided background information on the effects of 
exposure related to elevated levels of Pb and SO<INF>2</INF>, the 
promulgation of the 2008 Pb and 2010 SO<INF>2</INF> NAAQS, and the 
designation of the Hayden and Miami areas under the Clean Air Act (CAA) 
for the 2008 Pb and 2010 SO<INF>2</INF> NAAQS.\5\
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    \5\ 86 FR 24829, 24829-24830.
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    In the May 10, 2021 proposed rule, we also described the EPA's 
obligation under CAA section 179(c)(1) to determine whether an area's 
air quality meets the 2008 Pb and 2010 SO<INF>2</INF> NAAQS, the EPA 
regulations establishing the specific methods and procedures to 
determine whether an area has attained the 2008 Pb and 2010 
SO<INF>2</INF> NAAQS, and the Pb and SO<INF>2</INF> monitoring networks 
operated by the Arizona Department of Environmental Quality (ADEQ) in 
the Hayden and Miami areas.\6\ We also documented our previous review 
of Arizona's monitoring networks and annual network plans, Arizona's 
annual certifications of ambient air monitoring data, our 2018 
technical systems audit of ADEQ, and our evaluation of monitored Pb and 
SO<INF>2</INF> data against relevant data completeness requirements to 
determine validity for comparison against the 2008 Pb and 2010 
SO<INF>2</INF> NAAQS, respectively.\7\
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    \6\ 86 FR 24830-24832.
    \7\ 86 FR 24832-24833.
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    Under EPA regulations in 40 CFR 50.16 and in accordance with 40 CFR 
part 50, appendix R, the 2008 Pb NAAQS is met in an area when the 
design value is less than or equal to 0.15 micrograms per cubic meter 
([mu]g/m\3\) at each eligible monitoring site in the area. The Pb 
design value at each eligible monitoring site is the maximum valid 3-
month arithmetic mean Pb concentration calculated over three years. 
Under EPA regulations in 40 CFR 50.17 and in accordance with 40 CFR 
part 50, appendix T, the 2010 1-hour annual SO<INF>2</INF> standard is 
met when the design value is less than or equal to 75 parts per billion 
(ppb). The SO<INF>2</INF> design value is calculated by computing the 
three-year average of the annual 99th percentile daily maximum 1-hour 
average concentrations.\8\
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    \8\ As defined in 40 CFR part 50, appendix T, section 1(c), 
daily maximum 1-hour values refer to the maximum 1-hour 
SO<INF>2</INF> concentration values measured from midnight to 
midnight that are used in the NAAQS computations.
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    In the proposed rule, to evaluate whether the Hayden NAA attained 
the 2008 Pb NAAQS by the October 3, 2019 attainment date, we determined 
the 2016-2018 design value at each Pb monitoring site in the Hayden NAA 
using monitored data from November 2015 to December 2018.\9\ We 
determined that both Pb monitoring sites in the Hayden NAA produced 
valid design values for the 2016-2018 data period. Based on these valid 
design values, we found that both sites did not meet the 2008 Pb NAAQS 
of 0.15 [mu]g/m\3\ by the October 3, 2019 attainment date. The Hayden 
Pb 2018 annual design value site, i.e., the site with the highest 
design value based on monitored data from November 2015 to December 
2018, is the Hillcrest site with a 2018 Pb design value of 0.31 [mu]g/
m\3\.
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    \9\ 86 FR 24829, 24833. In accordance with appendix R to 40 CFR 
part 50, compliance with the Pb NAAQS is determined based on data 
from 36 consecutive valid 3-month periods (i.e., 38 months, or a 3-
year calendar period and the preceding November and December).
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    To evaluate whether the Hayden and Miami NAAs attained the 2010 
SO<INF>2</INF> NAAQS by the October 4, 2018 attainment date, we 
determined the 2015-2017 design value at each SO<INF>2</INF> monitoring 
site in the Hayden and Miami NAAs using monitored data from January 
2015 to December 2017.\10\ We determined that the one SO<INF>2</INF> 
monitoring site in the Hayden NAA and two of the three SO<INF>2</INF> 
monitoring sites in the Miami NAA produced valid design values for the 
2015-2017 data period. Based on these valid design values, we found 
that each SO<INF>2</INF> monitoring site producing a valid 2015-2017 
design value in the Hayden and Miami NAAs did not meet the 2010 
SO<INF>2</INF> NAAQS of 75 ppb by the October 4, 2018 attainment date. 
The Hayden SO<INF>2</INF> 2017 annual design value site, i.e., the site 
with the highest design value based on monitored data from January 2015 
to December 2017, is the Hayden Old Jail site with a 2017 
SO<INF>2</INF> design value of 295 ppb. The Miami SO<INF>2</INF> 2017 
design value site is the Miami Jones Ranch site with a 2017 
SO<INF>2</INF> design value of 221 ppb.
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    \10\ 86 FR 24834.
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    For the Hayden Pb NAA to attain the 2008 Pb NAAQS by October 3, 
2019, the 2018 Pb design value at each eligible monitoring site in the 
Hayden NAA must be equal to or less than 0.15 [mu]g/m\3\. Because at 
least one site had a 2018 Pb design value greater than 0.15 [mu]g/m\3\, 
we proposed to determine that the Hayden Pb NAA failed to attain the 
2008 Pb NAAQS by the October 3, 2019 attainment date. Similarly, for 
the Hayden and Miami SO<INF>2</INF> NAAs to attain the 2010 
SO<INF>2</INF> NAAQS by October 4, 2018, the 2017 SO<INF>2</INF> design 
value at each eligible monitoring site in the Hayden and Miami NAAs 
must be equal to or less than 75 ppb. Because at least one site in both 
the Hayden and Miami NAAs had a 2017 SO<INF>2</INF> design value 
greater than 75 ppb, we proposed to determine that the Hayden and Miami 
SO<INF>2</INF> NAAs failed to attain the 2010 SO<INF>2</INF> NAAQS by 
the October 4, 2018 attainment date. The May 10, 2021 proposed rule 
described the CAA requirements that would apply if the EPA were to 
finalize the proposed findings of failure to attain the 2008 Pb and 
2010 SO<INF>2</INF> NAAQS.\11\
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    \11\ Id.
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    Lastly, we also described in the proposed rule that the dominant 
source of Pb and SO<INF>2</INF> emissions in the Hayden Pb and 
SO<INF>2</INF> NAAs is the Asarco LLC (``Asarco'') Hayden Smelter, and 
the dominant source of SO<INF>2</INF> emissions in the Miami 
SO<INF>2</INF> NAA is the Freeport-McMoRan Miami Inc. (FMMI) Miami 
Smelter. Due to the unique nature of these two facilities, which are 
the only batch process primary copper smelters in the country, we 
requested comment on what additional measures could be feasibly 
implemented at these facilities under CAA section 179(d)(2) in light of

[[Page 4807]]

technological achievability, costs, and any non-air quality and other 
air quality-related health and environmental impacts.

II. Public Comments and Responses

    The May 10, 2021 proposed rule provided a 30-day public comment 
period that closed on June 9, 2021. During this period, seven comment 
letters were submitted to the EPA in response to the proposed rule. One 
comment letter was submitted by an anonymous commenter. This comment 
letter consisted of a pre-publication version of the May 10, 2021 
proposed rulemaking and contained no commentary on the proposed action. 
The six remaining comment letters were submitted by the Arizona Center 
for Law in the Public Interest (ACLPI), ADEQ, Asarco, FMMI, an 
additional representative of Asarco, and a private citizen. This 
section summarizes five of the six substantive comment letters 
submitted in response to the May 10, 2021 proposal and includes EPA's 
response to each of these comment letters. The additional comment 
letter submitted by Asarco's representative consists of more detailed 
technical comments concerning data quality and validity. We respond to 
these comments in a separate document available in the docket for this 
rulemaking.
    Comment 1: ACLPI supports the EPA's proposed findings of failure to 
attain the 2008 Pb and 2010 SO<INF>2</INF> NAAQS in the May 10, 2021 
proposed rulemaking and urges the EPA to finalize them as soon as 
possible so as not to delay implementation of additional control 
measures necessary to reach attainment of health-based standards for 
these areas. In response to the EPA's request for comment on additional 
measures that could be feasibly implemented at the Asarco Hayden 
Smelter under CAA section 179(d)(2), ACLPI recommends control measures 
focusing on sources of lead-bearing particles, including the following: 
(1) Sulfide minerals from crushed ore or concentrate, (2) flash furnace 
dust, and (3) lead and zinc sulfates likely originating from converter 
dust. In support of its recommendations, ACLPI cites and encloses with 
its comment letter a report prepared by James Anderson, Professor 
Emeritus at the School for Engineering of Matter, Transport and Energy 
at Arizona State University, entitled Assessment of the origins of 
lead-bearing airborne particulates at Hayden, Arizona by electron 
micro-analysis.
    Response 1: We appreciate the additional information supplied by 
ACLPI concerning specific sources of lead-bearing particles at the 
Asarco Hayden facility. We note that the submitted study was conducted 
in 2017, prior to full implementation of controls for the Hayden Pb 
NAA, which was required by 2018.\12\ For example, Asasrco was required 
to implement new primary, secondary, and tertiary hooding systems for 
the converter aisle and a new ventilation system for matte tapping and 
slag skimming for the flash furnace by July 2018.\13\ Accordingly, the 
data from the 2017 study may not accurately represent the contributions 
of the facility, including the converter aisle and flash furnace 
sources, following the implementation of these controls. Furthermore, 
the study does not address the technological feasibility or cost of any 
potential controls, which must also be considered in establishing 
control requirements under 179(d)(2). Therefore, we do not believe this 
study provides a sufficient basis for us to prescribe specific control 
measures for the Hayden area SIP revisions under CAA section 179(d)(2) 
at this time.
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    \12\ See, e.g., 83 FR 31087, 31096 (July 3, 2018), ``Table 6-
Control Implementation Schedule and Emission Reductions,'' showing 
implementation deadlines of July 2018 for multiple controls for the 
Hayden Pb NAA.
    \13\ Id.
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    Additionally, we note that the EPA has proposed a residual risk and 
technology review (RTR) for the national emission standards for 
hazardous air pollutants for primary copper smelting major sources, 
codified at 40 CFR part 63, subpart QQQ.\14\ This proposed rule 
includes reviews of health risks associated with hazardous air 
pollutant (HAP) emissions from primary copper smelting major sources 
and developments in practices, processes, and control technologies 
under CAA sections 112(f)(2)(A) and 112(d)(6). Based on the findings of 
these reviews, the EPA has proposed revised and new emissions standards 
for primary copper smelting major sources. The only two primary copper 
smelting major sources in the United States and, consequently, the only 
two sources that are subject to the current major source emissions 
standards in subpart QQQ and that would become subject to the revised 
standards proposed in the primary copper smelting RTR, if finalized, 
are the Asarco Hayden and FMMI Miami smelters. The revised and new 
emissions standards in the proposed RTR address anode refining furnace 
point source emissions of particulate matter (PM) (as a surrogate for 
non-mercury HAP-metals), roofline emissions of PM from anode refining 
furnaces and smelting furnaces, and point source emissions of mercury 
from dryers, converters, anode refining furnaces, and smelting 
furnaces. In the RTR, PM is regulated as a surrogate for non-mercury 
metal HAP, including Pb. Given that the RTR rulemaking process for 
these sources is ongoing, we believe it would not be appropriate to 
require specific additional measures under 179(d)(2) at this time, 
because such measures could potentially be inconsistent with measures 
that may ultimately be required under the RTR rulemaking.
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    \14\ 87 FR 1616 (January 11, 2022).
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    While we are not taking final action to prescribe additional 
measures for the Hayden Pb and SO<INF>2</INF> SIP revisions required 
under CAA section 179(d)(2) at this time, we encourage ADEQ to consider 
ACLPI's recommendations and the findings of the Arizona State 
University report enclosed in ACLPI's comment when determining 
appropriate measures to be included in the SIP revisions required 
pursuant to section 179(d)(1) as a result of this action.
    Comment 2: ADEQ notes that the Asarco Hayden Smelter has not been 
operational since October 2019. ADEQ also notes that the EPA's proposed 
finding of failure to attain considers SO<INF>2</INF> monitoring data 
gathered prior to the completion of upgrades to the Asarco Hayden 
Smelter and FMMI Miami Smelter. ADEQ suggests that if the EPA finalizes 
its proposed determination in the fall of 2021, a new attainment date 
in late 2026 would be appropriate because it would be consistent with 
the timeframe established in CAA sections 172(a)(2) and 179(d)(3) and 
would allow ADEQ to collaborate with Asarco and FMMI to develop new 
attainment plans fulfilling all applicable requirements.
    Response 2: We recognize that the Asarco Hayden Smelter has been 
inoperational since October 2019 and that the proposed findings of 
failure to attain were based on monitoring data gathered prior to the 
completion of upgrades to both smelters. However, CAA section 179(c)(1) 
requires the EPA to determine whether a nonattainment area has attained 
the NAAQS based on the area's air quality as of the attainment date. As 
described in the proposed rule, in accordance with appendix R to 40 CFR 
part 50, the Pb design value is determined based on monitoring data 
from the most recent three calendar years and two previous months. The 
Pb design value as of the October 3, 2019 attainment date is therefore 
determined based on air quality monitoring data from November 1, 2015 
to December 31, 2018. As also described in the proposed rule, in 
accordance with appendix T to 40 CFR part 50, the SO<INF>2</INF> design 
value is

[[Page 4808]]

based on monitoring data from the most recent three calendar years. The 
SO<INF>2</INF> design value as of the October 4, 2018 attainment date 
is therefore determined based on air quality monitoring data from 
January 1, 2015 to December 31, 2017. The CAA does not provide the EPA 
with discretion to consider air quality monitoring data collected after 
the attainment date in making determinations of attainment or failure 
to attain under section 179(c)(1).
    Under CAA section 179(d)(3), the new maximum attainment date for 
each nonattainment area is the date by which attainment can be achieved 
as expeditiously as practicable, but no later than five years after the 
EPA publishes a document in the Federal Register determining that the 
nonattainment area failed to attain the relevant NAAQS (in this case, 
five years from the date this final rule publishes in the Federal 
Register). To be approved by the EPA, NAA SIP submittals need to ensure 
that the affected NAAs reach attainment as expeditiously as 
practicable.
    Comment 3: Asarco notes that the Asarco Hayden Smelter has not been 
operational since October 2019 and that the Pb and SO<INF>2</INF> 
monitoring data relied upon in the EPA's proposed finding of failure to 
attain almost entirely predate emissions capture and control 
improvements installed at the Asarco Hayden Smelter between 2018 and 
2020. Asarco details these improvements and states that the EPA should 
defer action on the proposed finding of failure to attain to allow time 
for the Asarco Hayden Smelter to resume steady state operation and for 
monitored Pb and SO<INF>2</INF> data to demonstrate the efficacy of 
these improvements. Asarco states that the 179(d) proceedings triggered 
by the finding of failure to attain would create a legal possibility of 
the imposition on Asarco of hundreds of millions of dollars in 
additional emissions capture and control obligations and that the 
financial uncertainty that this would cause could very well spell the 
permanent end of the Hayden smelter. Asarco argues that the EPA's 
request for comment on additional measures that could be feasibly 
implemented at the Asarco Hayden Smelter under CAA section 179(d)(2) is 
premature in advance of a final finding of failure to attain under CAA 
section 179(c) and is irrelevant to a determination of whether a 
finding of failure to attain is warranted. Asarco also argues that the 
EPA is required to undertake notice and comment rulemaking in response 
to a SIP revision submitted under CAA section 179(d)(1) before making a 
final determination of whether additional emissions capture or control 
requirements at the Hayden smelter are necessary.
    Response 3: We acknowledge that the monitoring data relied upon in 
the proposed action largely predate the emissions capture and control 
improvements installed at the Asarco Hayden Smelter between 2018 and 
2020 and that the smelter has not been operational since October 2019. 
We note, however, that SIP-approved rules R18-2-B1302 (``Limits on 
SO<INF>2</INF> Emissions from the Hayden Smelter'') and R18-2-B1301 
(``Limits on Lead Emissions from the Hayden Smelter'') required 
compliance no later than July 1, 2018, and other Pb controls at the 
Hayden Smelter were required to be implemented by July 13, 2018.\15\ 
Therefore, it appears that the upgrades and optimization projects that 
Asarco describes as being finalized in late 2018 through 2020 were in 
addition to those upgrades that were required in the SIP for the 
purpose of bringing the area into attainment of the SO<INF>2</INF> and 
Pb NAAQS. This suggests that the current SIP-approved control measures 
may not have been adequate to provide for attainment and that a SIP 
revision is therefore needed to make the additional control upgrades 
performed in late 2018 through 2020 (and any other measures needed to 
provide for attainment) permanent and enforceable.
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    \15\ 83 FR 31087, 31096 (July 3, 2018), ``Table 6-Control 
Implementation Schedule and Emission Reductions.''
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    Moreover, as discussed in our response to ADEQ's comment in this 
document (response 2), the EPA is required to determine whether a 
nonattainment area attained the NAAQS based on the area's air quality 
as of the attainment date. The CAA does not provide the EPA with 
discretion to consider air quality monitoring data collected after the 
attainment date in making determinations of attainment or failure to 
attain under section 179(c)(1). Therefore, even if we were to delay our 
determinations of whether the Hayden Pb and SO<INF>2</INF> NAAs 
attained the NAAQS by the respective attainment dates until the Asarco 
Hayden Smelter resumes steady state operation, we would not be able to 
consider monitoring data reflecting the improvements installed at the 
Asarco Hayden Smelter after those attainment dates. Such data could, 
however, be considered in future actions, such as a determination under 
the EPA's clean data policy (discussed in response 4 in this document) 
or a determination of whether the Hayden Pb and SO<INF>2</INF> NAAs 
attained the respective NAAQS by the new attainment date triggered by 
this finding. Furthermore, the new Pb and SO<INF>2</INF> plans that 
will be due within one year after publication of this action in the 
Federal Register must each include ``a comprehensive, accurate, current 
inventory of actual emissions.'' \16\ These updated inventories must 
necessarily reflect the controls installed at the Hayden smelter in 
2018-2020 and will serve as the foundation for modeling and other 
analyses in the new plans.
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    \16\ CAA section 172(c)(3).
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    We believe Asarco has mischaracterized the implications of the 
proposed findings. Contrary to Asarco's suggestion, the development of 
new attainment plans will not necessarily result in requirements for 
new emissions controls. If the new plans demonstrate that all 
applicable Pb and SO<INF>2</INF> attainment-related CAA requirements 
are satisfied with existing controls (including those installed in 
2018-2020), then further controls related to attainment of the Pb and 
SO<INF>2</INF> NAAQS would not be required. Furthermore, as noted in 
the proposal, the EPA has already disapproved portions of the 2010 
SO<INF>2</INF> attainment plan for the Hayden nonattainment area.\17\ 
Specifically, the EPA disapproved the attainment demonstration and 
other elements tied to this demonstration.\18\ Accordingly, the State 
would need to submit a revised attainment demonstration and related 
elements for the Hayden SO<INF>2</INF> NAA, and the EPA would need to 
propose to approve that future SIP, in order to avoid application of 
mandatory sanctions under CAA sections 179(a) and 179(b) and 40 CFR 
52.31. As also explained in the proposal, the EPA anticipates that 
Arizona's submission of a new, approvable SO<INF>2</INF> attainment 
plan in response to a final finding of failure to attain would also 
satisfy these existing obligations.
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    \17\ 85 FR 71547 (November 10, 2020).
    \18\ Id.
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    We disagree that our request for comment on additional measures 
that could be feasibly implemented at the Asarco Hayden Smelter under 
CAA section 179(d)(2) was premature in advance of a finding of failure 
to attain under CAA section 179(c)(2). Because such a finding 
automatically triggers a one-year deadline for submittal of a revised 
SIP meeting the requirements of 179(d)(2), it would be reasonable for 
the EPA to prescribe specific measures under 179(d)(2) in conjunction 
with a final action under 179(c)(2) so that the State has adequate 
notice of the need to include these measures while developing its SIP. 
However, in this

[[Page 4809]]

particular case, we are not taking final action to prescribe additional 
measures for the Hayden Pb and SO<INF>2</INF> SIP revisions under CAA 
section 179(d)(2) at this time.
    Comment 4: FMMI states that the monitoring data relied upon in the 
EPA's proposed finding of failure to attain do not reflect extensive 
upgrades to emission control and capture systems implemented at the 
FMMI Miami Smelter in January 2018. FMMI states that the EPA's proposed 
finding of failure to attain does not address air quality dispersion 
modeling or a demonstration that the control strategy in the SIP has 
been fully implemented. FMMI argues that a more appropriate context for 
the EPA's request for comment on additional measures that could be 
feasibly implemented at the FMMI Miami Smelter would be to recognize 
the following: (1) The upgrades to emission control and capture systems 
implemented at the FMMI Miami Smelter, (2) ADEQ's dispersion modeling 
demonstrating attainment of the 2010 1-hour SO<INF>2</INF> NAAQS, and 
(3) subsequent monitoring data indicating that emission reductions are 
providing for attainment of the 2010 1-hour SO<INF>2</INF> NAAQS. FMMI 
cites the EPA's ``Guidance for 1-Hour SO<INF>2</INF> Nonattainment Area 
SIP Submissions'' (``SO<INF>2</INF> SIP Guidance''),\19\ which states:
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    \19\ Memorandum dated April 23, 2014, from Stephen D. Page, 
Director, Office of Air Quality Planning and Standards, EPA, to EPA 
Regional Air Directors, Regions 1-10, Subject: ``Guidance for 1-Hour 
SO<INF>2</INF> Nonattainment Area SIP Submissions,'' 11.

    The EPA believes that, where a control strategy has recently 
taken effect and the state can determine based on recent monitoring 
data or other relevant information that the control strategy will 
result in attainment once 3 years of data that reflect those 
controls are available, the required plan revisions can be 
accomplished in a very streamlined manner. The EPA expects that the 
submittal to the EPA could simply provide a determination that: (1) 
All monitors in the affected area have at least 1 calendar year of 
clean air quality data, (2) the approved SIP has been fully 
implemented for the area, and (3) emission sources have complied 
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with their SIP requirements.

    FMMI notes that, despite implementation of the required capture and 
control upgrades by January 2018, ``there were still several instances 
of recorded daily maximum 1-hour SO<INF>2</INF> concentrations above 
the standard in calendar year 2018.'' FMMI explains that, in response 
to these exceedances, it ``implemented several measures to improve 
capture and minimize fugitive SO<INF>2</INF> emissions.'' FMMI further 
states that the two monitors in the Miami NAA recorded a total of three 
exceedances of the 1-hour SO<INF>2</INF> NAAQS in 2020, all of which 
``were attributed to a specific event or issue at the Miami Smelter 
that was subsequently resolved,'' and that since January 1, 2021, there 
have been no exceedances of the 1-hour SO<INF>2</INF> NAAQS recorded at 
either of these monitors. On this basis, FMMI argues that, because (1) 
the monitors in the Miami SO<INF>2</INF> NAA have at least one calendar 
year of clean data, (2) the approved Miami SO<INF>2</INF> NAA SIP has 
been fully implemented, and (3) the FMMI Miami Smelter is in compliance 
with its source-specific SIP requirements, the SIP revision required 
under CAA section 179(d)(1) following a finding of failure to attain 
under section 179(c)(2) need only affirm the previously approved SIP 
and establish a new attainment date that reflects three full years of 
implementation. FMMI also states that certain SIP requirements, 
including contingency measures, can be suspended if the monitors in the 
Miami SO<INF>2</INF> NAA have at least one calendar year of data 
indicating that the area is attaining the standard.
    Response 4: As discussed in response 2 of this document, the EPA is 
required to determine whether a nonattainment area attained the NAAQS 
based on the area's air quality as of the attainment date, and the CAA 
does not provide the EPA with discretion to consider air quality 
monitoring data collected after the attainment date in making 
determinations of attainment or failure to attain under section 
179(c)(1). We acknowledge that the monitoring data relied upon in the 
proposed action therefore do not fully reflect upgrades to emission 
control and capture systems implemented at the FMMI Miami Smelter as of 
January 2018 because some of those upgrades occurred after the area's 
attainment date. However, we note that the construction schedule set 
forth in the approved implementation plan indicated that FMMI planned 
to complete many of the required upgrades in 2016-2017, so the 
monitoring data in 2016-2017 would have reflected some of these 
upgrades.\20\
---------------------------------------------------------------------------

    \20\ ``Arizona State Implementation Plan Revision: Miami Sulfur 
Dioxide Nonattainment Area for the 2010 SO<INF>2</INF> NAAQS,'' 84 
(March 8, 2017), Table 5-4.
---------------------------------------------------------------------------

    While FMMI states that the EPA's proposed finding of failure to 
attain does not address air quality dispersion modeling or a 
demonstration that the control strategy in the SIP has been fully 
implemented, FMMI also acknowledges that monitoring data from January 
1, 2015 to December 31, 2017 do not demonstrate attainment of the 
SO<INF>2</INF> NAAQS in the Miami NAA by the attainment date. As 
described in the EPA's SO<INF>2</INF> SIP Guidance, we are not able to 
make a determination of attainment for an area if the monitors in the 
area do not yield a design value that meets the NAAQS prior to the 
applicable attainment date. In the proposed rule, we found that two 
regulatory air monitors in the Miami NAA produced complete, valid 1-
hour SO<INF>2</INF> design values for the 2015-2017 data period. 
Because complete and valid monitoring data were available to determine 
that the Miami NAA failed to attain the SO<INF>2</INF> NAAQS by the 
attainment date, we do not find it necessary or appropriate to consider 
air quality dispersion modeling or a demonstration that the control 
strategy in the SIP has been fully implemented in our attainment 
determination. We acknowledge FMMI's comment that recognizing upgrades 
to the smelter, dispersion modeling demonstrating attainment, and 
monitoring data demonstrating progress toward attainment would provide 
a more appropriate context for our request for comment on additional 
measures that could be feasibly implemented at the FMMI Miami Smelter. 
We note that we are not taking final action to prescribe additional 
measures for the Miami SO<INF>2</INF> SIP revision under CAA section 
179(d)(2) at this time.
    As noted by FMMI, the SO<INF>2</INF> SIP Guidance indicates that, 
following a finding of failure to attain, in appropriate circumstances 
the EPA may approve a revised plan that affirms the previously approved 
control strategy but establishes a new attainment date. In particular, 
the SO<INF>2</INF> SIP Guidance indicates that this approach may be 
appropriate if the state can determine, based on recent monitoring data 
or other relevant information, that the control strategy in the 
existing SIP will result in attainment once three years of data 
reflecting those controls are available.\21\ We recognize the progress 
that the Miami SO<INF>2</INF> NAA has made toward attainment of the 
2010 SO<INF>2</INF> NAAQS since emissions control and capture 
improvements were implemented at the FMMI Miami Smelter in January 
2018. However, as FMMI acknowledges in its comment, monitors in the 
Miami area recorded multiple exceedances of the SO<INF>2</INF> NAAQS in 
2018-2020, even after full implementation of the improvements required 
under the SIP. We appreciate that, since 2018, FMMI has implemented 
additional improvements to emissions capture at the Miami Smelter to 
address those exceedances. However, because those

[[Page 4810]]

improvements were implemented after the attainment date, they were 
evidently not required under the existing SIP. This suggests that the 
control strategy in the existing SIP is, in fact, not sufficient to 
provide for attainment of the NAAQS and that substantive revisions to 
the requirements of the SIP may be needed.
---------------------------------------------------------------------------

    \21\ SO<INF>2</INF> SIP Guidance, 11.
---------------------------------------------------------------------------

    Finally, we do not agree with the commenter's assertion that 
certain SIP requirements, including contingency measures, can be 
suspended based on one calendar year of monitoring data indicating no 
hourly exceedances of the NAAQS level. The commenter appears to be 
referring to the EPA's clean data policy, which is discussed in the 
SO<INF>2</INF> SIP Guidance.\22\ However, contrary to the commenter's 
suggestion, a single year of clean monitoring data is not a sufficient 
basis for the EPA to suspend attainment-related SIP requirements under 
the SO<INF>2</INF> clean data policy. Rather, ADEQ would need to 
demonstrate that the area has three consecutive calendar years of air 
quality monitoring data which show that the area is meeting the 
standard and provide either (1) modeling of the most recent three years 
of actual emissions for the area or (2) a demonstration that the 
affected monitor(s) is located in the area of maximum 
concentration.\23\ We also note that a clean data finding would only 
suspend the requirements for the State to submit SIP revisions to 
address certain attainment-related requirements. Such a finding would 
not affect existing requirements that already apply under the SIP. Such 
requirements can only be altered by a SIP revision meeting the 
requirements of CAA section 110(l). Therefore, contrary to the 
commenter's suggestion, a clean data finding would not alter the 
States' or sources' ongoing obligations to implement the contingency 
measures in the previously approved SIP for the Miami NAA that will be 
triggered by the findings in this action.
---------------------------------------------------------------------------

    \22\ Id. at 51-60.
    \23\ Id. at 57-58.
---------------------------------------------------------------------------

    Comment 5: One commenter, a private citizen, argues that, due to 
the unique nature of the Asarco Hayden Smelter and FMMI Miami Smelter, 
the time allotted for each smelter to retrofit its equipment before the 
attainment date is capricious and arbitrary. The commenter states that 
the EPA's finding of failure to attain should consider improvements 
made at both smelters, the challenges posed to both smelters as a 
result of the EPA's tightened Pb and SO<INF>2</INF> NAAQS, and the 
short time frame allotted for both smelters to retrofit their equipment 
before the applicable attainment dates. Finally, citing CAA sections 
110 and 172, the commenter argues that the EPA should seek revisions to 
the SIP and extend the attainment dates in order to prove the 
retrofitted smelters have fulfilled requirements under 172(c).\24\
---------------------------------------------------------------------------

    \24\ We interpret the commenter's reference to ``42 U.S.C. 7410 
(h)(k)(j) and U.S.C. 7502 (2)(a)'' to refer to CAA sections 110(h), 
(j), and (k) (42 U.S.C. 7410(h), (j), and (k)), and 172(a)(2) (42 
U.S.C. 7502(a)(2)).
---------------------------------------------------------------------------

    Response 5: We disagree that the time allotted for each smelter to 
retrofit its equipment before the attainment date is capricious and 
arbitrary. CAA section 192(a) provides that the attainment date for 
newly designated Pb and SO<INF>2</INF> nonattainment areas is ``as 
expeditiously as practicable but no later than 5 years from the date of 
the nonattainment designation.'' \25\ Thus, the October 4, 2018 
attainment date for the Hayden and Miami SO<INF>2</INF> NAAs and the 
October 3, 2019 attainment date for Hayden Pb NAA were the latest 
possible dates permitted by statute. While we acknowledge that the 
monitoring data relied upon in the proposed action do not reflect all 
of the emissions control and capture improvements that have been made 
to date at the Hayden Asarco Smelter and FMMI Miami Smelter, as 
discussed in response 2 of this document, the EPA is required to 
determine whether a nonattainment area attained the NAAQS based on the 
area's air quality as of the attainment date. The EPA does not have the 
discretion to consider air quality monitoring data collected after the 
attainment date in making determinations of attainment or failure to 
attain under CAA section 179(c)(1).
---------------------------------------------------------------------------

    \25\ Pursuant to CAA sections 172(a)(2)(D) and 192(a), the 
attainment date extension provision under section 172(a)(2)(A) does 
not apply to the Pb or SO<INF>2</INF> NAAQS.
---------------------------------------------------------------------------

    We do not agree with the commenter's suggestion that we should take 
action under CAA sections 110(h), (j) or (k) in relation to the Hayden 
Pb, Hayden SO<INF>2</INF>, or Miami SO<INF>2</INF> NAAs. CAA 
subsections 110(h), 42 U.S.C. 7410(h), (``Publication of comprehensive 
document for each State setting forth requirements of applicable 
implementation plan'') and 110(j), 42 U.S.C. 7410(j) (``Technological 
systems of continuous emission reduction on new or modified stationary 
sources; compliance with performance standards'') have no particular 
relevance to attainment plans, and we believe the references to these 
sections may have been in error. If the commenter is suggesting that 
the EPA seek revisions to the SIP and extend attainment dates under its 
authority to issue a SIP call under CAA section 110(k)(5), we do not 
believe such a SIP call is necessary or appropriate for the Hayden Pb, 
Hayden SO<INF>2</INF>, or Miami SO<INF>2</INF> NAAs at this time. The 
findings in this action trigger new attainment dates \26\ and 
requirements for SIP revisions under CAA section 179(d), and the newly 
required SIP revisions must meet the requirements of CAA sections 110 
and 172, including the provisions of section 172(c), 42 U.S.C. 7502(c) 
referenced by the commenter.\27\
---------------------------------------------------------------------------

    \26\ As noted in the proposal, under CAA section 179(d)(3), the 
new attainment date for each nonattainment area is the date by which 
attainment can be achieved as expeditiously as practicable, but no 
later than five years after the EPA publishes a final action in the 
Federal Register determining that the nonattainment area failed to 
attain the applicable Pb or SO<INF>2</INF> standard.
    \27\ CAA section 179(d)(2).
---------------------------------------------------------------------------

III. Environmental Justice Considerations

    Executive Order 12898 (59 FR 7629, February 16, 1994) requires that 
Federal agencies, to the greatest extent practicable and permitted by 
law, identify and address disproportionately high and adverse human 
health or environmental effects of their actions on minority and low-
income populations. Additionally, Executive Order 13985 (86 FR 7009, 
January 25, 2021) directs Federal Government agencies to assess 
whether, and to what extent, their programs and policies perpetuate 
systemic barriers to opportunities and benefits for people of color and 
other underserved groups, and Executive Order 14008 (86 FR 7619, 
February 1, 2021) directs Federal agencies to develop programs, 
policies, and activities to address the disproportionate health, 
environmental, economic, and climate impacts on disadvantaged 
communities. To identify environmental burdens and susceptible 
populations in underserved communities in the Hayden Pb, Hayden 
SO<INF>2</INF>, and Miami SO<INF>2</INF> NAAs, and to examine the 
implications of the proposed findings of failure to attain the 2008 Pb 
and 2010 SO<INF>2</INF> NAAQS on these communities, we performed a 
screening-level analysis using the EPA's environmental justice (EJ) 
screening and mapping tool (``EJSCREEN'').\28\ Our screening-level 
analysis indicates that communities in the NAAs affected by this 
action, particularly in the neighborhoods surrounding the Asarco

[[Page 4811]]

Hayden and FMMI Miami smelters, score highly compared to the national 
average for 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.\29\ These neighborhoods also score highly compared to the 
national average for the ``population with less than high school 
education'' and ``population over age 64'' indicators. Additionally, 
these neighborhoods score highly compared to the national average for 
numerous EJ Index indicators, including the Pb paint EJ Index and 
wastewater discharge EJ Index.
---------------------------------------------------------------------------

    \28\ 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 representing the Hayden and Miami nonattainment areas as 
well as for buffer areas of approximately 1-, 2-, and 3-mile radii 
centered around the Asarco Hayden and FMMI Miami smelters. These 
indicators are included in the file titled ``EJSCREEN summary.xlsx'' 
available in the rulemaking docket for this action.
    \29\ EJSCREEN reports environmental indicators (e.g., air toxics 
cancer risk, Pb 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.\30\ Underserved communities can also experience reduced 
access to health care, nutritional, and fitness resources, further 
increasing their susceptibility. In addition to the demographic and 
environmental indicators identified in our screening level analysis, 
the proximity of underserved communities to the Asarco Hayden and FMMI 
Miami smelters (and exposure to Pb and SO<INF>2</INF> emissions from 
these facilities) contribute to the potential EJ concerns faced by 
communities in the affected nonattainment areas.
---------------------------------------------------------------------------

    \30\ EPA, ``Technical Guidance for Assessing Environmental 
Justice in Regulatory Analysis,'' section 4 (June 2016).
---------------------------------------------------------------------------

    This final action triggers the implementation of contingency 
measures and requires the State of Arizona to develop updated SIP 
revisions providing for attainment of the 2008 Pb NAAQS in Hayden and 
attainment of the 2010 SO<INF>2</INF> NAAQS in Hayden and Miami. The 
implementation of contingency measures and development of required SIP 
revisions will result in air quality improvements and human health 
benefits for Hayden- and Miami-area residents, including those in 
underserved communities. Conversely, failure to make the determinations 
in this final action could inhibit or delay the attainment of the 2008 
Pb and 2010 SO<INF>2</INF> NAAQS in these areas, perpetuating the EJ 
concerns potentially faced by communities in these areas. Thus, we 
believe that finalizing our proposed action will help to reduce 
disproportionate health, environmental, economic, and climate impacts 
on disadvantaged communities in the Hayden and Miami areas 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.

IV. Final Action

    Under CAA section 179(c)(1), the EPA is taking final action to 
determine that the Hayden Pb NAA failed to attain the 2008 Pb primary 
and secondary NAAQS by the applicable attainment date of October 3, 
2019. The EPA is also taking final action to determine that the Hayden 
and Miami SO<INF>2</INF> NAAs failed to attain the 2010 1-hour primary 
SO<INF>2</INF> NAAQS by the applicable attainment date of October 4, 
2018. As a result of these determinations, the State of Arizona is 
required under CAA section 179(d) to submit revisions to the Arizona 
SIP for the Hayden Pb, Hayden SO<INF>2</INF>, and Miami SO<INF>2</INF> 
NAAs that, among other elements, provide for attainment of the 
respective standards as expeditiously as practicable but no later than 
January 31, 2027. At this time, we are not prescribing additional 
measures for the Pb and SO<INF>2</INF> SIP revisions under CAA section 
179(d)(2). The SIP revisions required under CAA section 179(d) are due 
for submittal to the EPA by January 31, 2023. This final action also 
triggers the implementation of contingency measures adopted in these 
areas under CAA section 172(c)(9).

V. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive orders 
can be found at https://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 therefore 
was not submitted to the Office of Management and Budget for review.

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the provisions of the PRA because it does not contain any information 
collection activities.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action will not impose any requirements on small entities. This final 
action requires the State to adopt and submit SIP revisions to satisfy 
CAA requirements and does not itself directly regulate any small 
entities.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate of $100 million 
or more, as described in UMRA (2 U.S.C. 1531-1538) and does not 
significantly or uniquely affect small governments. This action itself 
imposes no enforceable duty on any state, local, or tribal governments, 
or the private sector. This action determines that the Hayden Pb NAA 
and the Hayden and Miami SO<INF>2</INF> NAAs failed to attain the NAAQS 
by the applicable attainment dates and triggers existing statutory 
timeframes for the State to submit SIP revisions. Such a determination 
in and of itself does not impose any Federal intergovernmental mandate.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the National Government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

F. Executive Order 13175, Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. The finding of failure to attain the Pb and 
SO<INF>2</INF> NAAQS does not apply to tribal areas, and the rule will 
not impose a burden on Indian reservation lands or other areas where 
the EPA or an Indian tribe has demonstrated that a tribe has 
jurisdiction within the Hayden Pb, Hayden SO<INF>2</INF> and Miami 
SO<INF>2</INF> nonattainment areas. Thus, this rule does not have 
tribal implications and will not impose substantial direct costs

[[Page 4812]]

on tribal governments or preempt tribal law as specified by Executive 
Order 13175. Nonetheless, the EPA notified the San Carlos Apache Tribe 
of the San Carlos Reservation, which borders the eastern boundary of 
the Hayden Pb and Hayden SO<INF>2</INF> NAAs, of this action.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive order. This action is not subject to 
Executive Order 13045 because the effect of this action is to trigger 
additional planning requirements under the CAA. This action does not 
establish an environmental standard intended to mitigate health or 
safety risks.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211 because it is not 
a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

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

    The EPA believes that this action does 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. The documentation for this decision 
is contained in section III of this document. The docket for this 
rulemaking action includes a summary of environmental justice 
indicators for communities in the Hayden and Miami areas obtained using 
the EPA's EJSCREEN tool.

K. Congressional Review Act

    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).

L. 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 April 1, 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, Lead, Pollution, Sulfur 
dioxide.

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

    Dated: January 21, 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 52.125 is amended by adding paragraph (h) to read as 
follows:


Sec.  52.125  Control strategy and regulations: Sulfur Oxides

* * * * *
    (h) Effective March 2, 2022, the EPA has determined that the Hayden 
and Miami nonattainment areas failed to attain the 2010 1-hour primary 
sulfur dioxide (SO<INF>2</INF>) national ambient air quality standards 
(NAAQS) by the applicable attainment date of October 4, 2018. This 
determination triggers the requirements of CAA section 179(d) for the 
State of Arizona to submit a revision to the Arizona SIP for the Hayden 
and Miami nonattainment areas to the EPA by January 31, 2023. The SIP 
revision must, among other elements, provide for attainment of the 1-
hour primary SO<INF>2</INF> NAAQS in the Hayden and Miami 
SO<INF>2</INF> NAAs as expeditiously as practicable but no later than 
January 31, 2027.

0
3. Section 52.127 is added to read as follows:


Sec.  52.127  Control strategy and regulations: Lead.

    (a) Effective March 2, 2022, the EPA has determined that the Hayden 
nonattainment area failed to attain the 2008 primary and secondary lead 
(Pb) national ambient air quality standards (NAAQS) by the applicable 
attainment date of October 3, 2019. This determination triggers the 
requirements of CAA section 179(d) for the State of Arizona to submit a 
revision to the Arizona SIP for the Hayden nonattainment area to the 
EPA by January 31, 2023. The SIP revision must, among other elements, 
provide for attainment of the 2008 Pb NAAQS in the Hayden Pb NAA as 
expeditiously as practicable but no later than January 31, 2027.
    (b) [Reserved]

[FR Doc. 2022-01595 Filed 1-28-22; 8:45 am]
BILLING CODE 6560-50-P


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