Federal Register / Vol. 87, No. 20 / Monday, January 31, 2022 / Rules and Regulations 4805 

1The EPA first established primary and 

secondary Pb standards in 1978 at 1.5 micrograms 

Continued 

available as listed in the ADDRESSES

section of this document. FAA Order JO 

7400.11F lists Class A, B, C, D, and E 

airspace areas, air traffic service routes, 

and reporting points. 

The Rule 

The FAA is amending 14 CFR part 71 

by establishing Class E airspace 

extending upward from 700 feet above 

the surface of the earth at Monticello 

Airport, Monticello, UT. 

The Class E airspace is established 

extending upward from 700 feet above 

ground level within a 6.5-mile radius of 

the airport. This airspace is designed to 

contain the new Area Navigation 

(RNAV) approaches into the airport and 

instrument departures from the airport. 

The airspace supports the airport’s 

transition from visual flight rules to IFR 

operations. 

FAA Order JO 7400.11, Airspace 

Designations and Reporting Points, is 

published yearly and effective on 

September 15. 

Regulatory Notices and Analyses 

The FAA has determined that this 

regulation only involves an established 

body of technical regulations for which 

frequent and routine amendments are 

necessary to keep them operationally 

current, is non-controversial, and 

unlikely to result in adverse or negative 

comments. It, therefore: (1) Is not a 

‘‘significant regulatory action’’ under 

Executive Order 12866; (2) is not a 

‘‘significant rule’’ under DOT 

Regulatory Policies and Procedures (44 

FR 11034; February 26, 1979); and (3) 

does not warrant preparation of a 

regulatory evaluation as the anticipated 

impact is so minimal. Since this is a 

routine matter that will only affect air 

traffic procedures and air navigation, it 

is certified that this rule, when 

promulgated, would not have a 

significant economic impact on a 

substantial number of small entities 

under the criteria of the Regulatory 

Flexibility Act. 

Environmental Review 

The FAA has determined that this 

action qualifies for categorical exclusion 

under the National Environmental 

Policy Act in accordance with FAA 

Order 1050.1F, ‘‘Environmental 

Impacts: Policies and Procedures,’’ 

paragraph 5–6.5a. This airspace action 

is not expected to cause any potentially 

significant environmental impacts, and 

no extraordinary circumstances exist 

that warrant the preparation of an 

environmental assessment. 

List of Subjects in 14 CFR Part 71 

Airspace, Incorporation by reference, 

Navigation (air). 

Adoption of the Amendment 

In consideration of the foregoing, the 

Federal Aviation Administration 

amends 14 CFR part 71 as follows: 

PART 71—DESIGNATION OF CLASS A, 

B, C, D, AND E AIRSPACE AREAS; AIR 

TRAFFIC SERVICE ROUTES; AND 

REPORTING POINTS 

■ 1. The authority citation for 14 CFR 

part 71 continues to read as follows: 

Authority: 49 U.S.C. 106(f), 106(g), 40103, 

40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 

1959–1963 Comp., p. 389. 

§ 71.1 [Amended] 

■ 2. The incorporation by reference in 

14 CFR 71.1 of FAA Order JO 7400.11F, 

Airspace Designations and Reporting 

Points, dated August 10, 2021, and 

effective September 15, 2021, is 

amended as follows: 

Paragraph 6005 Class E Airspace Areas 

Extending Upward From 700 Feet or More 

Above the Surface of the Earth. 

* * * * * 

ANM UT E5 Monticello, UT [New] 

Monticello Airport, UT 

(Lat. 37°55′57′′ N, long. 109°20′28′′ W) 

That airspace extending upward from 700 

feet above the surface within a 6.5-mile 

radius of the airport. 

Issued in Des Moines, Washington, on 

January 18, 2022. 

B.G. Chew, 

Acting Group Manager, Operations Support 

Group, Western Service Center. 

[FR Doc. 2022–01904 Filed 1–28–22; 8:45 am] 

BILLING CODE 4910–13–P 

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. 

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 (SO2) NAAs 

failed to attain the 2010 1-hour SO2

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 

SO2 NAAQS in the Hayden and Miami 

SO2 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, Leers.Ben@

epa.gov. 

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 


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4806 Federal Register / Vol. 87, No. 20 / Monday, January 31, 2022 / Rules and Regulations 

per cubic meter (mg/m3) 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 mg/m3 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. 

3The EPA first established primary SO2 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 SO2 to 

provide increased protection of public health, 

providing for revocation of the 1971 primary annual 

and 24-hour SO2 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). 4For exact descriptions of the Hayden and Miami 

SO2 NAAs, refer to 40 CFR 81.303. 5 86 FR 24829, 24829–24830. 

6 86 FR 24830–24832. 

7 86 FR 24832–24833. 

8As defined in 40 CFR part 50, appendix T, 

section 1(c), daily maximum 1-hour values refer to 

the maximum 1-hour SO2 concentration values 

measured from midnight to midnight that are used 

in the NAAQS computations. 

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). 

10 86 FR 24834. 

11 Id. 

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 SO2 NAAs failed to 

attain the 2010 1-hour SO2 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 SO2 NAAs include parts of Gila and 

Pinal counties and exclude the parts of 

Indian country within the areas. The 

Miami SO2 NAA includes parts of Gila 

County and excludes parts of Indian 

country within the area.4

The proposed rule provided 

background information on the effects of 

exposure related to elevated levels of Pb 

and SO2, the promulgation of the 2008 

Pb and 2010 SO2 NAAQS, and the 

designation of the Hayden and Miami 

areas under the Clean Air Act (CAA) for 

the 2008 Pb and 2010 SO2 NAAQS.5

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 SO2

NAAQS, the EPA regulations 

establishing the specific methods and 

procedures to determine whether an 

area has attained the 2008 Pb and 2010 

SO2 NAAQS, and the Pb and SO2

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 SO2

data against relevant data completeness 

requirements to determine validity for 

comparison against the 2008 Pb and 

2010 SO2 NAAQS, respectively.7

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 (mg/m3) 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 SO2 standard is met when the 

design value is less than or equal to 75 

parts per billion (ppb). The SO2 design 

value is calculated by computing the 

three-year average of the annual 99th 

percentile daily maximum 1-hour 

average concentrations.8

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 mg/m3

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 mg/m3. 

To evaluate whether the Hayden and 

Miami NAAs attained the 2010 SO2

NAAQS by the October 4, 2018 

attainment date, we determined the 

2015–2017 design value at each SO2

monitoring site in the Hayden and 

Miami NAAs using monitored data from 

January 2015 to December 2017.10 We 

determined that the one SO2 monitoring 

site in the Hayden NAA and two of the 

three SO2 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 SO2 monitoring site producing a 

valid 2015–2017 design value in the 

Hayden and Miami NAAs did not meet 

the 2010 SO2 NAAQS of 75 ppb by the 

October 4, 2018 attainment date. The 

Hayden SO2 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 SO2

design value of 295 ppb. The Miami SO2

2017 design value site is the Miami 

Jones Ranch site with a 2017 SO2 design 

value of 221 ppb. 

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 mg/ 

m3. Because at least one site had a 2018 

Pb design value greater than 

0.15 mg/m3, 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 SO2 NAAs to attain 

the 2010 SO2 NAAQS by October 4, 

2018, the 2017 SO2 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 SO2 design value 

greater than 75 ppb, we proposed to 

determine that the Hayden and Miami 

SO2 NAAs failed to attain the 2010 SO2

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 SO2 NAAQS.11

Lastly, we also described in the 

proposed rule that the dominant source 

of Pb and SO2 emissions in the Hayden 

Pb and SO2 NAAs is the Asarco LLC 

(‘‘Asarco’’) Hayden Smelter, and the 

dominant source of SO2 emissions in 

the Miami SO2 NAA is the FreeportMcMoRan 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 


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Federal Register / Vol. 87, No. 20 / Monday, January 31, 2022 / Rules and Regulations 4807 

12See, 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. 

14 87 FR 1616 (January 11, 2022). 

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 SO2

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 leadbearing 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 microanalysis. 

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. 

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. 

While we are not taking final action 

to prescribe additional measures for the 

Hayden Pb and SO2 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 SO2

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 SO2 design value is 


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15 83 FR 31087, 31096 (July 3, 2018), ‘‘Table 6– 

Control Implementation Schedule and Emission 

Reductions.’’ 

16CAA section 172(c)(3). 

17 85 FR 71547 (November 10, 2020). 

18 Id. 

based on monitoring data from the most 

recent three calendar years. The SO2

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 SO2 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 SO2 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 SO2

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 SO2 and Pb NAAQS. 

This suggests that the current SIPapproved 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. 

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 SO2 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 SO2 NAAs attained the 

respective NAAQS by the new 

attainment date triggered by this 

finding. Furthermore, the new Pb and 

SO2 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. 

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 

SO2 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 SO2

NAAQS would not be required. 

Furthermore, as noted in the proposal, 

the EPA has already disapproved 

portions of the 2010 SO2 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 SO2

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 SO2 attainment plan 

in response to a final finding of failure 

to attain would also satisfy these 

existing obligations. 

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 


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19Memorandum 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 SO2 Nonattainment Area SIP Submissions,’’ 

11. 

20 ‘‘Arizona State Implementation Plan Revision: 

Miami Sulfur Dioxide Nonattainment Area for the 

2010 SO2 NAAQS,’’ 84 (March 8, 2017), Table 5– 

4. 21SO2 SIP Guidance, 11. 

particular case, we are not taking final 

action to prescribe additional measures 

for the Hayden Pb and SO2 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 SO2

NAAQS, and (3) subsequent monitoring 

data indicating that emission reductions 

are providing for attainment of the 2010 

1-hour SO2 NAAQS. FMMI cites the 

EPA’s ‘‘Guidance for 1-Hour SO2

Nonattainment Area SIP Submissions’’ 

(‘‘SO2 SIP Guidance’’),19 which states: 

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 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 SO2

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 

SO2 emissions.’’ FMMI further states 

that the two monitors in the Miami 

NAA recorded a total of three 

exceedances of the 1-hour SO2 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 SO2 NAAQS recorded at 

either of these monitors. On this basis, 

FMMI argues that, because (1) the 

monitors in the Miami SO2 NAA have 

at least one calendar year of clean data, 

(2) the approved Miami SO2 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 

SO2 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

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 SO2

NAAQS in the Miami NAA by the 

attainment date. As described in the 

EPA’s SO2 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 

SO2 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 SO2 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 SO2

SIP revision under CAA section 

179(d)(2) at this time. 

As noted by FMMI, the SO2 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 SO2 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 SO2 NAA has made toward 

attainment of the 2010 SO2 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 

SO2 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 


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22 Id. at 51–60. 

23 Id. at 57–58. 

24We 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)). 

25Pursuant 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 SO2 NAAQS. 

26As 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 SO2 standard. 27CAA section 179(d)(2). 

28EJSCREEN 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. 

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. 

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 SO2

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 SO2 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. 

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 

SO2 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

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 SO2

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 SO2 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). 

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 SO2, 

or Miami SO2 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 

SO2, or Miami SO2 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

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 

SO2, and Miami SO2 NAAs, and to 

examine the implications of the 

proposed findings of failure to attain the 

2008 Pb and 2010 SO2 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 


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29EJSCREEN 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). 

30EPA, ‘‘Technical Guidance for Assessing 

Environmental Justice in Regulatory Analysis,’’ 

section 4 (June 2016). 

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. 

As discussed in the EPA’s EJ technical 

guidance, people of color and lowincome 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 SO2 emissions from 

these facilities) contribute to the 

potential EJ concerns faced by 

communities in the affected 

nonattainment areas. 

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 SO2 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 

SO2 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 SO2 NAAs failed to 

attain the 2010 1-hour primary SO2

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 

SO2, and Miami SO2 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 SO2 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/lawsregulations/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 SO2

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 SO2 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 SO2 and Miami SO2

nonattainment areas. Thus, this rule 

does not have tribal implications and 

will not impose substantial direct costs 


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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 SO2 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, lowincome 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 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart D—Arizona 

■ 2. Section 52.125 is amended by 

adding paragraph (h) to read as follows: 

§ 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 (SO2) 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 SO2

NAAQS in the Hayden and Miami SO2

NAAs as expeditiously as practicable 

but no later than January 31, 2027. 

■ 3. Section 52.127 is added to read as 

follows: 

§ 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 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 81 

[EPA–R07–OAR–2021–0667; FRL–9105–02– 

R7] 

Air Plan Approval; Missouri 

Redesignation Request and 

Associated Maintenance Plan for the 

Jackson County 2010 SO2 1-Hour 

NAAQS Nonattainment Area 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: On February 18, 2021, the 

State of Missouri submitted a request for 

the Environmental Protection Agency 

(EPA) to redesignate the Jackson 

County, Missouri, 2010 1-hour sulfur 

dioxide (SO2) National Ambient Air 

Quality Standard (NAAQS) 

nonattainment area to attainment and 

approve a State Implementation Plan 

(SIP) revision containing a maintenance 

plan for the area. The State provided a 

supplement to the maintenance plan on 


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