[Federal Register Volume 86, Number 139 (Friday, July 23, 2021)]
[Rules and Regulations]
[Pages 38928-38931]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-15667]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2021-0373; FRL-8715-02-R9]


Finding of Failure To Submit a State Implementation Plan To Meet 
the 1987 24-Hour PM10 Standard; Moderate Area Requirements; West Pinal 
County; Arizona

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is making a finding 
that Arizona has not submitted a required revision to the Arizona State 
Implementation Plan (SIP) for the West Pinal County nonattainment area 
addressing Clean Air Act (CAA) requirements for a Moderate area 
attainment plan, related rules, and other analyses needed to attain the 
1987 24-hour particulate matter (PM<INF>10</INF>) National Ambient Air 
Quality Standard (NAAQS) by December 31, 2018. Under the CAA, Arizona 
was required to submit a moderate area PM<INF>10</INF> attainment plan 
for West Pinal County no later than January 2, 2014, and the State did 
so on December 21, 2015. On May 17, 2021, Arizona withdrew its Moderate 
area attainment plan submission. This finding establishes a deadline 
for EPA to promulgate a Federal Implementation Plan (FIP) to address 
these CAA requirements 24 months from the effective date of this 
finding. The CAA also provides for the imposition of sanctions if 
Arizona does not submit the required attainment plan within timeframes 
specified by the CAA.

DATES: This finding is effective on August 23, 2021.

ADDRESSES: The EPA has established a docket for this action identified 
by the following identification number, EPA-R09-OAR-2021-0373. 
Generally, documents in the docket for this action are available 
electronically at the 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: Jerry Wamsley, EPA Region IX, (415) 
947-4111, <a href="/cdn-cgi/l/email-protection#e59284889689809ccb8f8097979ca5809584cb828a93"><span class="__cf_email__" data-cfemail="bbccdad6c8d7dec295d1dec9c9c2fbdecbda95dcd4cd">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: Section 553 of the Administrative Procedure 
Act (APA), 5 U.S.C. 553(b)(B), provides that an agency may issue a rule 
without providing notice and an opportunity for public comment when 
that agency finds for good cause that notice and public procedure are 
impracticable, unnecessary, or contrary to the public interest. The EPA 
has determined that there is good cause for issuing this finding 
without prior proposal and opportunity for comment because there is 
little or no judgment involved for the EPA to make a finding of failure 
to submit SIPs or elements of SIPs required by the CAA, where states 
have not submitted a required SIP revision by the date specified by 
statute, made incomplete submissions, or, as in this case, withdrawn an 
existing submission. In such circumstances, EPA finds that notice and 
public procedures are unnecessary and that this constitutes good cause 
under 5 U.S.C. 553(b)(B).
    Throughout this document, ``we,'' ``us,'' and ``our'' refer to the 
EPA.

Table of Contents

I. Background and Statutory Requirements
    A. The PM10 NAAQS and the EPA's Nonattainment Redesignation of 
West Pinal County
    B. CAA Moderate PM<INF>10</INF> Nonattainment Area Requirements 
for West Pinal County
    C. Consequences of This Finding That Arizona Failed To Submit a 
PM<INF>10</INF> Implementation Plan for West Pinal County
II. Final Action
III. Statutory and Executive Order Reviews

I. Background and Statutory Requirements

A. The PM<INF>10</INF> NAAQS and the EPA's Nonattainment Redesignation 
of West Pinal County

    The EPA sets the NAAQS for certain ambient air pollutants at levels 
required to protect public health and welfare. Particulate matter with 
an aerodynamic diameter less than or equal to a nominal ten 
micrometers, or PM<INF>10</INF>, is one of the ambient air pollutants 
for which the EPA has established health-based standards. The EPA 
revised the NAAQS (or ``standards'') for particulate matter on July 1, 
1987, replacing the standards for total suspended particulates (TSP

[[Page 38929]]

less than 30 microns in diameter) with new standards applying only to 
particulate matter up to 10 microns in diameter.\1\ An area attains the 
24-hour PM<INF>10</INF> standard of 150 micrograms per cubic meter 
([mu]g/m\3\) when the expected number of days per calendar year, 
averaged over a three year period, with a 24-hour concentration 
exceeding the standard (referred to as an exceedance), is equal to or 
less than one.\2\ On January 13, 2013, the EPA announced that it was 
again retaining the 24-hour PM<INF>10</INF> NAAQS as a 24-hour standard 
of 150 [mu]g/m\3\.\3\
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    \1\ 53 FR 24634 (July 1, 1987). The 1987 PM<INF>10</INF> 
standards included a 24-hour (150 micrograms per cubic meter ([mu]g/
m\3\)) and an annual standard (50 [mu]g/m\3\). In 2006, the EPA 
revoked the annual standard; see 71 FR 61144 (October 17, 2006) and 
40 CFR 50.6.
    \2\ An exceedance is defined as a daily value that is above the 
level of the 24-hour standard, 150 [mu]g/m\3\, after rounding to the 
nearest 10 [mu]g/m\3\ (i.e., values ending in five or greater are to 
be rounded up). Consequently, a recorded value of 154 [mu]g/m\3\ 
would not be an exceedance because it would be rounded to 150 [mu]g/
m\3\; whereas, a recorded value of 155 [mu]g/m\3\ would be an 
exceedance because it would be rounded to 160 [mu]g/m\3\. See 40 CFR 
part 50, appendix K, section 1.0.
    \3\ 78 FR 3806 (January 13, 2013).
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    On October 14, 2009, consistent with Section 107(d)(3)(A) of the 
CAA, the EPA notified the Governor of Arizona and the leaders of four 
Tribes with areas of Indian country either entirely or partly within 
Pinal County that the designation for Pinal County and nearby areas 
contributing to monitored violations of the PM<INF>10</INF> NAAQS 
should be revised.\4\ The EPA's initiation of the redesignation process 
for Pinal County was based upon our review of 2006-2008 ambient 
PM<INF>10</INF> monitoring data from monitoring stations within the 
county showing widespread, frequent, and, in some cases, severe 
violations of the PM<INF>10</INF> NAAQS.
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    \4\ Letter from Laura Yoshii, Acting Regional Administrator, to 
Governor of Arizona Jan Brewer dated October 14, 2009. By letters 
dated December 30, 2009, the EPA notified the tribal leaders of the 
Ak-Chin Indian Community, Gila River Indian Community, and San 
Carlos Apache Tribe. The EPA notified Tohono O'odham Nation by 
letter dated September 21, 2010.
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    On May 31, 2012, EPA redesignated part of Pinal County from 
unclassifiable to nonattainment for the 24-hour PM<INF>10</INF> NAAQS, 
creating the West Pinal County PM<INF>10</INF> nonattainment area.\5\ 
The EPA's nonattainment redesignation of West Pinal County was based on 
ambient PM<INF>10</INF> data collected from 2007 to 2009.\6\ Our 
redesignation of West Pinal County to nonattainment for the 
PM<INF>10</INF> NAAQS was effective on July 2, 2012. Consequently, 
under section 188(c)(1) of the CAA, Arizona was required to submit an 
implementation plan providing for West Pinal County's attainment of the 
PM<INF>10</INF> NAAQS as expeditiously as practicable, but no later 
than the close of the sixth calendar year after redesignation, or 
December 31, 2018. As specified in our May 31, 2012 rulemaking, the 
Moderate area PM<INF>10</INF> attainment plan for West Pinal County was 
due on January 2, 2014, 18 months after the effective date of the 
redesignation, as required by section 189(a)(2)(B) of the CAA.
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    \5\ For the boundaries of the West Pinal County PM<INF>10</INF> 
nonattainment area, see 40 CFR 81.303. Also, for a detailed 
discussion of these boundaries, see our final rule at 77 FR 32024 
(May 31, 2012) and proposed rule at 75 FR 60680 (October 1, 2010). 
No areas of Indian country are located in the West Pinal 
PM<INF>10</INF> nonattainment area.
    \6\ 75 FR 60680 (October 1, 2010).
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    On December 21, 2015, Arizona submitted ``The 2015 West Pinal 
Moderate PM<INF>10</INF> Nonattainment Area SIP'' (Moderate Area Plan) 
with related rules and analyses for West Pinal County.\7\ The 
submission included rules regulating PM<INF>10</INF> emissions from 
construction sites, crop operations, animal operations, irrigation 
districts, and general fugitive dust. On May 1, 2017, the EPA approved 
the submitted rules regulating PM<INF>10</INF> emissions from 
construction sites, crop operations, irrigation districts, and general 
fugitive dust, but did not act on the remainder of the submission.\8\
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    \7\ Letter dated December 21, 2015 from Eric C. Massey, 
Director, Air Quality Division, ADEQ to Jared Blumenfeld, Regional 
Administrator, EPA Region IX.
    \8\ 82 FR 20267 (May 1, 2017).
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    On June 24, 2020, the EPA determined that the West Pinal County 
nonattainment area had not attained the 1987 24-hour PM<INF>10</INF> 
NAAQS by the latest permissible December 31, 2018 attainment date and 
reclassified the area from Moderate to Serious.\9\ The EPA's finding of 
failure to attain the NAAQS by the required date and concomitant 
reclassification established an 18-month deadline for Arizona to submit 
a Serious area attainment plan for the West Pinal County 
PM<INF>10</INF> nonattainment area by January 24, 2022.
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    \9\ 85 FR 37756 (June 24, 2020).
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    On January 8, 2021, the EPA proposed a partial approval and partial 
disapproval of the Moderate Area Plan, proposing to disapprove all 
elements of the attainment plan, except the emissions inventories.\10\ 
Subsequently, on February 26, 2021, we proposed a limited approval and 
limited disapproval of statutory provisions and rules that govern 
particulate matter emissions from agricultural activity that Arizona 
submitted with the plan.\11\
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    \10\ 86 FR 1347 (January 8, 2021).
    \11\ 86 FR 11681 (February 26, 2021).
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    On May 17, 2021, ADEQ withdrew all submitted portions of the 
Moderate Area Plan that the EPA had not approved previously into the 
SIP.\12\ In addition to the required attainment plan, Arizona's 
withdrawal action included the agricultural dust regulations that the 
EPA had not already approved into the SIP. Because Arizona has 
withdrawn the submission, the State has failed to meet its obligation 
to submit an attainment plan for the Moderate area attainment plan 
requirements for the West Pinal County PM<INF>10</INF> nonattainment 
area, providing the basis for this finding.
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    \12\ Letter from Daniel Czecholinski, Arizona Department of 
Environmental Quality, to Deborah Jordan, EPA Region IX, dated May 
17, 2021.
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B. CAA Moderate PM10 Nonattainment Area Requirements for West Pinal 
County

    Areas redesignated as nonattainment are subject to the applicable 
requirements of part D, title I of the CAA and are classified as 
Moderate by operation of law, consistent with section 188(a) of the 
CAA. Within 18 months of the effective date of the redesignation, i.e., 
by January 2, 2014, Arizona was required to submit an attainment plan 
to the EPA providing for how the State will meet the PM<INF>10</INF> 
NAAQS within the West Pinal County nonattainment area no later than 
December 31, 2018. Among other things, this Moderate area attainment 
plan must contain statutorily mandated elements and, according to the 
CAA and EPA guidance, address the following requirements: (1) An 
approved permit program for construction of new and modified major 
stationary sources; \13\ (2) a demonstration that the plan provides for 
attainment by no later than the applicable Moderate area attainment 
date or a demonstration that attainment by that date is impracticable; 
\14\ (3) provisions for the implementation of reasonably available 
control measures (RACM) and reasonably available control technology 
(RACT); \15\ (4) quantitative milestones that will be used to evaluate 
compliance with the requirement to demonstrate reasonable further 
progress (RFP); \16\ (5) evaluation and regulation of PM<INF>10</INF> 
precursors; \17\ (6) a description of the expected annual incremental 
reductions in emissions that will demonstrate RFP; \18\ (7) emissions 
inventories, as necessary; \19\ (8) other control measures besides RACM 
and RACT as may be needed for

[[Page 38930]]

attainment; \20\ (9) contingency measures; \21\ and (10) a motor 
vehicle emissions budget for the purpose of determining the conformity 
of transportation programs and plans developed by state transportation 
agencies.\22\ With Arizona's May 17, 2021 withdrawal action, the State 
has failed to meet its obligation to submit nine of the ten required 
Moderate area attainment plan elements; today's action does not affect 
ADEQ's permit program governing the construction and operation of new 
and modified major stationary sources of PM<INF>10</INF> within the 
West Pinal County nonattainment area.\23\
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    \13\ CAA section 189(a)(1)(A).
    \14\ CAA section 189(a)(1)(B).
    \15\ CAA section 189(a)(1)(C).
    \16\ CAA section 189(c).
    \17\ CAA section 189(e).
    \18\ CAA section 172(c)(2).
    \19\ CAA section 172(c)(3).
    \20\ CAA section 172(c)(6).
    \21\ CAA section 172(c)(9).
    \22\ 40 CFR 93.102(b)(1).
    \23\ For a discussion of our action on Arizona's submittal to 
meet CAA section 189(a)(1)(A), see 80 FR 67319 (November 2, 2015).
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    By this action, the EPA is finding that Arizona failed to submit 
the nine required PM<INF>10</INF> Moderate Area attainment plan 
elements for the West Pinal County PM<INF>10</INF> nonattainment area 
listed above. As noted, Arizona has submitted a major source 
PM<INF>10</INF> permitting program including West Pinal County and that 
element is not a subject of this finding.

C. Consequences of This Finding That Arizona Failed To Submit a PM10 
Implementation Plan for West Pinal County

    The EPA is finding that Arizona has failed to make a required 
Moderate area attainment plan submission for the 1987 PM<INF>10</INF> 
NAAQS for the West Pinal County area, except for the permit program 
required under section 189(a)(1)(A). With this finding, section 179 of 
the CAA starts a sanctions clock and a FIP clock. Section 179(a) of the 
CAA specifies the consequences for a state if the EPA finds that a 
state has failed to make a required SIP submission, if the EPA has 
determined that a submitted SIP is incomplete, or if the EPA has 
disapproved a SIP submission. If the EPA has not affirmatively 
determined that Arizona has made complete submissions of the required 
nonattainment SIP elements within 18 months of the effective date of 
this action, then the offset sanction identified in section 179(b)(2) 
will apply to West Pinal County, pursuant to section 179(a) and (b) and 
40 CFR 52.31. If the EPA has not affirmatively determined that Arizona 
has made a complete SIP submission for West Pinal County within six 
months after imposition of this offset sanction, then the highway 
funding sanction will be imposed, as required under section 179(b)(1) 
of the CAA and 40 CFR 52.31.
    Arizona may avoid these sanctions by taking timely action to remedy 
this finding. The 18-month clock governing the Act's imposition of 
sanctions on Arizona will stop and sanctions will not take effect if 
the EPA finds that the State has made a complete SIP submission for the 
Moderate area attainment plan requirements for the West Pinal County 
area within 18 months of the date of this finding. Similarly, the EPA 
is not required to promulgate a FIP if Arizona makes the required SIP 
submission and the EPA takes final action to approve the submission 
within two years of the finding of failure to submit a required SIP. In 
sum, the CAA does not require sanctions or a FIP if the State and the 
EPA take timely action to remedy this finding.
    As discussed previously, the EPA determined that West Pinal County 
did not meet the PM<INF>10</INF> NAAQS by December 31, 2018, causing 
West Pinal County to be reclassified, by operation of law, from a 
Moderate to a Serious PM<INF>10</INF> nonattainment area. With this 
reclassification of West Pinal County to Serious, Arizona is required 
to submit, by January 24, 2022, a nonattainment plan SIP revision that 
complies with the statutory and regulatory requirements for Serious 
PM<INF>10</INF> nonattainment plans and that demonstrates attainment of 
the PM<INF>10</INF> NAAQS as expeditiously as practicable, but no later 
than December 31, 2022. Although reclassification of West Pinal County 
from Moderate to Serious does not eliminate Arizona's obligation to 
meet Moderate area nonattainment plan requirements, the EPA anticipates 
that Arizona's submission of an approvable Serious area nonattainment 
plan would also satisfy the State's Moderate area nonattainment plan 
obligations.\24\ Therefore, should Arizona submit a complete Serious 
area attainment plan for the West Pinal County PM<INF>10</INF> 
nonattainment area, the sanction clocks associated with this finding of 
failure to submit would stop. Similarly, should Arizona submit, and the 
EPA subsequently approve, a Serious area attainment plan for the West 
Pinal County PM<INF>10</INF> nonattainment area, such a final approval 
action would stop the FIP clock associated with this finding of failure 
to submit the Moderate area implementation plan elements.
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    \24\ See section 189(b)(1), specifying that Serious Area plan 
requirements include ``the provisions submitted to meet the 
requirements of paragraph (a)(1) [of section 189] (relating to 
Moderate Areas).''
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II. Final Action

    The EPA finds that Arizona has not submitted a revision to the 
Arizona SIP addressing CAA requirements for a Moderate area attainment 
plan, related rules, and other analyses, for the West Pinal County 
PM<INF>10</INF> nonattainment area. Under provisions of the CAA, 
Arizona was required to submit a Moderate area PM<INF>10</INF> 
implementation plan for West Pinal County no later than January 2, 
2014. Although Arizona submitted a Moderate area PM<INF>10</INF> 
attainment plan, related rules, and analyses, on December 21, 2015, the 
State withdrew this submittal on May 17, 2021, giving rise to this 
finding.
    This finding of failure to submit the required Moderate area 
PM<INF>10</INF> attainment plan establishes a deadline, 24 months after 
the effective date of this finding, for EPA to promulgate a FIP to 
address the CAA requirements for a Moderate area PM<INF>10</INF> 
attainment plan, unless prior to this deadline, Arizona submits and the 
EPA approves the State's Moderate area PM<INF>10</INF> attainment plan 
as meeting all the requirements of the CAA. The CAA also provides for 
the imposition of emissions offset sanctions 18 months from the 
effective date of this finding and highway funding sanctions 24 months 
from the effective date of this finding, if Arizona does not submit the 
required complete Moderate area PM<INF>10</INF> attainment plan before 
these deadlines.

III. Statutory and Executive Order Reviews

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

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review.

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the PRA because this action does not impose additional requirements 
beyond those imposed by state law.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action will not impose any requirements on small entities beyond those 
imposed by state law.

[[Page 38931]]

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. This action does not impose additional requirements 
beyond those imposed by state law. Accordingly, no additional costs to 
State, local, or tribal governments, or to the private sector, will 
result from this action.

E. Executive Order 13132: Federalism

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

F. Executive Order 13175: Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175, because this action does apply on any Indian 
reservation land or in any other area where the EPA or an Indian tribe 
has demonstrated that a tribe has jurisdiction, and will not impose 
substantial direct costs on tribal governments or preempt tribal law. 
There are no areas of Indian country located in the West Pinal 
PM<INF>10</INF> nonattainment area. Thus, Executive Order 13175 does 
not apply to this action.

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

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive order. This action is not subject to 
Executive Order 13045 because it does not impose additional 
requirements beyond those imposed by state law.

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

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

I. National Technology Transfer and Advancement Act (NTTAA)

    Section 12(d) of the NTTAA directs the EPA to use voluntary 
consensus standards in its regulatory activities unless to do so would 
be inconsistent with applicable law or otherwise impractical. The EPA 
believes that this action is not subject to the requirements of section 
12(d) of the NTTAA because application of those requirements would be 
inconsistent with the CAA.

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

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

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

L. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by September 21, 2021. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements (see section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Incorporation by reference, Intergovernmental 
relations, Particulate matter, Reporting and recordkeeping 
requirements.

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

    Dated: July 8, 2021.
Elizabeth Adams,
Acting Regional Administrator, Region IX.
[FR Doc. 2021-15667 Filed 7-22-21; 8:45 am]
BILLING CODE 6560-50-P


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