Clean Air Plans; 2008 8-Hour Ozone Nonattainment Area Requirements; Phoenix-Mesa, Arizona, 33571-33577 [2020-09732]
Download as PDF
<![CDATA[
Federal Register / Vol. 85, No. 106 / Tuesday, June 2, 2020 / Rules and Regulations
Coast Guard plans to provide
notification of this enforcement period
via a Marine Safety Information Bulletin
and/or Broadcast Notice to Mariners.
Dated: May 18, 2020.
K. M. Luttrell,
Captain, U.S. Coast Guard, Captain of the
Port Sector New Orleans.
[FR Doc. 2020–11056 Filed 6–1–20; 8:45 am]
BILLING CODE 9110–04–P
DATES:
ENVIRONMENTAL PROTECTION
AGENCY
Clean Air Plans; 2008 8-Hour Ozone
Nonattainment Area Requirements;
Phoenix-Mesa, Arizona
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is taking final action on
a state implementation plan (SIP)
revision submitted by the State of
Arizona on behalf of the Maricopa
Association of Governments (MAG) to
meet Clean Air Act (CAA or ‘‘the Act’’)
requirements for the 2008 ozone
national ambient air quality standards
(NAAQS or ‘‘standards’’) in the
Phoenix-Mesa (‘‘Phoenix’’) ozone
nonattainment area (NAA). The EPA is
finalizing approval of the portions of the
‘‘MAG 2017 Eight-Hour Ozone Moderate
Area Plan for the Maricopa
Nonattainment Area (December 2016)’’
(‘‘MAG 2017 Ozone Plan’’ or ‘‘Plan’’)
that address the requirements for
emissions inventories, a demonstration
of attainment by the applicable
attainment date, reasonably available
control measures (RACM), reasonable
further progress (RFP), motor vehicle
emission budgets for transportation
conformity, vehicle inspection and
maintenance (I/M) programs, new
source review (NSR) rules, and offsets.
The EPA is finalizing a disapproval of
the portion of the MAG 2017 Ozone
Plan that addresses the requirements for
contingency measures for failure to
attain or to make RFP. However, based
on a separate finding that the Phoenix
2008 ozone NAA (‘‘Phoenix NAA’’)
attained the 2008 ozone standards by
the applicable attainment date, we
previously determined that the
requirement for the State to submit a SIP
revision addressing attainment
contingency measures no longer applies
for the Phoenix NAA. We are also
SUMMARY:
khammond on DSKJM1Z7X2PROD with RULES
The EPA has established a
docket for this action under Docket ID
No. EPA–R09–OAR–2019–0541. All
documents in the docket are listed on
the https://www.regulations.gov
website. Although listed in the index,
some information is not publicly
available, e.g., Confidential Business
Information or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available through https://
www.regulations.gov, or please contact
the person identified in the FOR FURTHER
INFORMATION CONTACT section for
additional availability information.
ADDRESSES:
[EPA–R09–OAR–2019–0541; FRL–10009–
19–Region 9]
16:47 Jun 01, 2020
This rule is effective on July 2,
2020.
40 CFR Part 52
VerDate Sep<11>2014
finalizing our determination that the
requirement for the State to submit a SIP
revision addressing RFP contingency
measures no longer applies for the
Phoenix NAA. Finally, we are finalizing
approval of the portions of a SIP
revision, the ‘‘MAG 2014 Eight-Hour
Ozone Plan—Submittal of Marginal
Area Requirements for the Maricopa
Nonattainment Area (June 2014)’’
(‘‘MAG 2014 Ozone Plan’’), on which
we previously deferred action.
Jkt 250001
FOR FURTHER INFORMATION CONTACT:
Nancy Levin, EPA Region IX, 75
Hawthorne Street, San Francisco, CA
94105. Phone: (415) 972–3848 or by
email at levin.nancy@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document, ‘‘we,’’ ‘‘us,’’
and ‘‘our’’ refer to the EPA.
Table of Contents
I. Proposed Action
II. Public Comments and EPA Responses
III. Final Action
IV. Statutory and Executive Order Reviews
I. Proposed Action
On October 3, 2019, the EPA
proposed action on a SIP revision
submitted by the State of Arizona on
behalf of MAG to meet CAA
requirements for the 2008 ozone
NAAQS 1 in the Phoenix NAA.2 We also
proposed to approve the portions of a
SIP revision, the MAG 2014 Ozone Plan,
on which we previously deferred action.
Our proposed action contains more
information on the MAG 2017 Ozone
1 Since the 2008 primary and secondary NAAQS
for ozone are identical, for convenience, we refer to
both as ‘‘the 2008 ozone NAAQS’’ or ‘‘the 2008
ozone standard.’’
2 84 FR 52838.
PO 00000
Frm 00045
Fmt 4700
Sfmt 4700
33571
Plan, the MAG 2014 Ozone Plan, and
our evaluation of these submittals.
II. Public Comments and EPA
Responses
The EPA’s proposed action provided
a 30-day public comment period. During
this period, we received comments from
two commenters: (1) Arizona Center for
Law in the Public Interest (ACLPI) on
behalf of ACLPI, the Sierra Club-Grand
Canyon Chapter, and their supporters
and members who live and work in the
Phoenix metropolitan area; and (2) the
Arizona Department of Environmental
Quality (ADEQ). We summarize the
comments and provide our responses
below. All the comments received are
included in the docket for this action.
Commenter #1—ACLPI
Comment 1.a: The commenter
asserted that MAG should do more to
combat worsening ozone pollution,
particularly given the area’s economic
expansion and population, but that in
this Plan, MAG relied on existing
controls, tightening fuel standards, and
fleet turnover, which are not enough to
achieve attainment. Specifically, ACLPI
noted that the Act and the 2008 Ozone
SIP Requirements Rule (SRR) require
implementation of RACM to achieve
attainment as expeditiously as
practicable and to meet RFP
requirements; and that ‘‘[s]tates should
consider all available measures,
including those being implemented in
other areas.’’ The commenter stated that
‘‘MAG did not incorporate any new
control measures in the Plan’’ and that
the Plan’s reliance on existing control
measures, tighter fuel standards, and
fleet turnover, is ‘‘clearly not enough to
reach attainment in the Phoenix NAA.’’
The commenter also asserted that
economic expansion and population
growth in the Phoenix area will
continue to drive onroad and nonroad
mobile source emissions upwards, and
that ‘‘MAG and its member agencies
should lead the way in finding more
effective and long-lasting solutions to
Phoenix’s ozone pollution problem.’’
Response: We do not agree that the
controls reflected in the Plan are
insufficient to achieve attainment of the
2008 ozone NAAQS in the Phoenix
NAA. For the reasons described in our
proposal and in response to ACLPI’s
other comments in this document, we
find that the Plan adequately
demonstrates that the area will attain
the 2008 Ozone NAAQS by the
attainment date and meets all other
applicable requirements, including
RACM requirements. In particular, the
Plan documents that the State did
consider whether additional measures
E:\FR\FM\02JNR1.SGM
02JNR1
khammond on DSKJM1Z7X2PROD with RULES
33572
Federal Register / Vol. 85, No. 106 / Tuesday, June 2, 2020 / Rules and Regulations
were reasonably available as part of its
RACM analysis, but determined that no
new control measures were needed to
attain the NAAQS or achieve RFP in the
Phoenix NAA at this time.3 As
described in our proposal, this analysis
follows the approach outlined in the
SRR, which provides that states need
only adopt those control measures that
‘‘will advance the attainment date or
contribute to RFP for the area.’’ 4 ACLPI
has not provided any information or
analysis that undermines our
conclusion that the MAG 2017 Ozone
Plan meets this requirement.
Comment 1.b: ACLPI commented that
the area exceeded the 2008 ozone
standard multiple days in 2015 through
2019, and that the design value for the
2017 attainment year exceeded the 2008
ozone NAAQS when ‘‘unsupported
‘exceptional events’ exceedances on
June 20, 2015 are included in the
calculation.’’ The commenter also stated
that, even assuming these exceedances
were properly excluded, the design
value for 2018 was 77 parts per billion
(ppb). On this basis, the commenter
asserted that ‘‘any paper ‘attainment’ of
the 2008 standard in 2017 was fleeting
and not the result of permanent
emission reductions.’’ Finally, the
commenter stated that 2018 monitoring
data indicate that ozone concentrations
have increased since 2016 and that the
Phoenix metropolitan area is ranked 7th
on the American Lung Association’s list
of the most ozone-polluted cities in the
U.S.
Response: Under the CAA, a
determination of whether an area has
attained by the attainment date is a
separate action from the review of an
attainment demonstration in a SIP
revision. The EPA’s review of the SIP
revision occurs under CAA section
110(k), while a determination of
whether an area has failed to attain is
governed by CAA section 181(b)(2).
Under section 181(b)(2), the EPA must
determine whether an ozone NAA has
attained the applicable NAAQS
‘‘[w]ithin 6 months following the
applicable attainment date (including
any extension thereof).’’ In this instance,
the EPA has already undertaken a
separate final action to determine,
pursuant to section 181(b)(2), that the
Phoenix NAA attained the 2008 ozone
NAAQS by the ‘‘Moderate’’ area
attainment date, based on 2015–2017
monitoring data.5 That separate action
was based, in part, on our prior
concurrence with ADEQ’s
demonstration that, based on the weight
3 Plan
Chapter 4.
FR 12264, 12282 (March 6, 2015).
5 84 FR 60920 (November 12, 2019).
4 80
VerDate Sep<11>2014
16:47 Jun 01, 2020
Jkt 250001
of evidence, the ozone exceedances that
occurred on June 20, 2015, were caused
by wildfire ozone exceptional events.6
These separate actions are beyond the
scope of this final rule.
We do not consider the exceedances
of the 2008 ozone standard in 2018 and
2019, years after the area’s applicable
attainment date, to be relevant to the
approvability of the State’s
demonstration that this area would
attain the 2008 ozone NAAQS by the
attainment date, as discussed in our
response to comment 1.d.
Comment 1.c: ACLPI stated that the
EPA’s approval of the Plan ‘‘would defer
or significantly delay taking meaningful
actions to protect . . . vulnerable
residents, contravening the Act’s
express policy that ‘protection of public
health is the highest priority’ ’’ (quoting
CAA section 319(b)(3)(A)).
The commenter further asserted that
MAG and its member agencies should
act now to ‘‘promote and implement
clean mobility measures,’’ such as
converting all or part of government
fleets to zero-emission vehicles and
offering tax incentives and rebate
programs to residents who purchase
electric vehicles, to bring the Phoenix
area into compliance with ozone
standards ‘‘with an adequate margin of
safety and to ensure that such
compliance is maintained.’’ In addition,
the commenter argued that ‘‘MAG
should do more to control ozone
precursor emissions from gas-powered
lawn equipment.’’ Finally, citing MAG’s
RACM analysis in Chapter 4 of the Plan,
the commenter argued that MAG should
evaluate additional control measures
from the EPA’s menu of control
measures and measures adopted by the
Sacramento Metropolitan Air Quality
Management District, at least as
contingency measures.
Response: Our approval is based on
our finding that the Plan meets all of the
applicable requirements of the Act, as
described in our proposal and in this
document. Under CAA section
110(k)(3), the EPA is required to
approve any SIP submittal that meets all
such requirements. The EPA cannot
require states to adopt measures that are
more stringent than necessary to meet
CAA requirements. While we encourage
ADEQ, MAG, and Maricopa and Pinal
Counties to consider adopting the
measures suggested by the commenter,
we have determined that these measures
are not necessary to provide for
attainment of the 2008 ozone NAAQS in
the Phoenix NAA by the attainment date
or to meet RFP requirements, and are
therefore not needed to meet RACM
requirements. As noted in our response
to comment 1.b, the EPA has
determined, pursuant to section
181(b)(2), that the Phoenix NAA
attained the 2008 ozone NAAQS by the
‘‘Moderate’’ area attainment date. In
addition, for the reasons described in
our response to comment 1.f, we find
that RFP contingency measures are not
required for the Phoenix NAA at this
time. Therefore, ADEQ, MAG, and the
counties are not required to adopt any
additional control measures for
purposes of the MAG 2017 Ozone Plan.
Furthermore, the commenter’s
reliance on CAA section 319(b)(3)(A) is
misplaced. This provision establishes
five principles that the EPA must follow
in developing implementing regulations
for exceptional events, including that
‘‘protection of public health is the
highest priority.’’ 7 As noted in our
response to comment 1.b, we previously
concurred with ADEQ’s demonstration
that, based on the weight of evidence,
the ozone exceedances that occurred on
June 20, 2015, were caused by wildfire
ozone exceptional events.8 This was
done through a separate Agency action
and is beyond the scope of this final
rule. Requirements for exceptional
events demonstrations are not directly
relevant to the EPA’s action on an
attainment plan pursuant to CAA
section 110(k)(3).
Comment 1.d: ACLPI asserted that
‘‘the EPA should disapprove the Plan’s
attainment demonstration because it
does not demonstrate that the Phoenix
NAA attained the 2008 standard by the
July 20, 2018 attainment date or made
RFP goals.’’ The commenter stated that
MAG erred in omitting ozone
exceedances that occurred on June 20,
2015, from the 2015–2017 design value
calculation. The commenter also argued
that the ‘‘EPA cannot simply ignore the
fact that monitors in the Phoenix NAA
have continued to record numerous
violations of the 2008 ozone standard in
2018 and 2019, or that the 8-hour ozone
design value for the Phoenix NAA in
2018 was 77 ppb.’’
Response: We do not agree with the
commenter’s argument that the EPA
should disapprove the attainment
demonstration because it did not
demonstrate that the area factually
attained or achieved RFP, or with the
commenter’s assertions concerning
7 CAA
6 Letter
dated May 7, 2019, from Elizabeth J.
Adams, Director, Air Division, EPA Region IX, to
Timothy S. Franquist, Director, Air Quality
Division, ADEQ.
PO 00000
Frm 00046
Fmt 4700
Sfmt 4700
section 319(b)(3)(A)(i).
dated May 7, 2019, from Elizabeth J.
Adams, Director, Air Division, EPA Region IX, to
Timothy S. Franquist, Director, Air Quality
Division, ADEQ.
8 Letter
E:\FR\FM\02JNR1.SGM
02JNR1
Federal Register / Vol. 85, No. 106 / Tuesday, June 2, 2020 / Rules and Regulations
khammond on DSKJM1Z7X2PROD with RULES
exceptional events and the
consideration of monitoring data
collected after the Moderate attainment
date.
MAG has satisfied the legal and
regulatory criteria for attainment
demonstrations. Contrary to the
commenter’s suggestion, the CAA does
not require an attainment demonstration
to show that an area has attained the
NAAQS based on monitored values, or
that it has achieved emissions
reductions corresponding to RFP. Such
demonstrations would not be practical,
given that attainment demonstrations
are generally required to be submitted to
the EPA well before the milestone and
attainment dates.9 Rather, the CAA
requires states to submit SIP revisions
that ‘‘provide for attainment’’ of the
NAAQS by the attainment date and
‘‘require’’ RFP.10
To address the requirements to
provide for attainment and submit an
attainment demonstration, the MAG
2017 Ozone Plan includes an attainment
demonstration using air quality
modeling that shows that existing
control measures are sufficient for the
Phoenix area to attain the 2008 ozone
standard by 2017. In particular, to
predict future ozone levels, the modeled
attainment demonstration uses a
baseline design value derived from
historical monitoring data, historical
meteorological data from the baseline
period, emissions inventories
representing the baseline design value
period, and modeled reductions in
emissions based on SIP control
measures. The modeled attainment
demonstration is intended to assess
whether SIP controls are adequate to
reduce ambient ozone to a level at or
below the NAAQS by the attainment
date.11
The modeled attainment
demonstration showed that the
emissions reductions would provide for
attainment of the 2008 ozone NAAQS
by the attainment date. As a separate
matter, as described in our response to
comment 1.b, the monitoring data for
2015–2017 show attainment, and the
EPA has already determined in a prior
final Agency action that the area
attained the 2008 ozone NAAQS by the
9 See, e.g., CAA section 181(a)(1) (setting the
attainment date for Moderate areas of 6 years after
November 15, 1990); and 182(b)(1)(A) (requiring
submittal of attainment demonstration for Moderate
areas 3 years after November 15, 1990 and setting
RFP milestone date of 6 years after November 15,
1990).
10 CAA sections 172(c)(1), (2), and (6).
11 40 CFR 51.1108(c)(attainment demonstration
must be ‘‘based on photochemical grid modeling or
any other analytical method determined . . . to be
at least as effective.’’).
VerDate Sep<11>2014
16:47 Jun 01, 2020
Jkt 250001
attainment date based on these data.12
Data from 2018 and preliminary data
from 2019 for the area do not alter our
assessment of the modeled attainment
demonstration for the 2008 ozone
NAAQS. However, we note that the
Phoenix area is currently designated
and classified as a ‘‘Marginal’’ NAA for
the 2015 ozone NAAQS and has a
maximum attainment date of August 3,
2021.13 The EPA will consider the
monitoring data from 2018 through 2020
to determine whether the area attained
the 2015 ozone NAAQS by the
attainment deadline.14 If these data
show that the area has not attained, the
area would be reclassified to a Moderate
NAA for the 2015 ozone NAAQS, and
the State would be required to submit a
new attainment plan that addresses the
Moderate area requirements for the 2015
ozone NAAQS.15 Therefore, while the
2018–2019 monitoring data for the
Phoenix NAA are not pertinent to our
action on the 2017 MAG Ozone Plan,
these data will be relevant to our
determination of whether the area has
attained the 2015 ozone standard.
Comment 1.e: The commenter argued
that approval of the attainment
demonstration would be ‘‘problematic,
given the weaknesses of MAG’s
modeling’’ that the EPA identified in the
proposed rule.
Response: We do not agree that the
‘‘weaknesses’’ identified in our proposal
concerning meteorological inputs and
model performance are obstacles to
approving the attainment demonstration
in the MAG 2017 Ozone Plan. As an
initial matter, it is important to note that
the EPA’s ‘‘Modeling Guidance for
Demonstrating Attainment of Air
Quality Goals for Ozone, PM2.5, and
Regional Haze’’ (‘‘Modeling Guidance’’)
states, ‘‘[b]y definition, models are
simplistic approximations of complex
phenomena’’ and ‘‘all models have
strengths and weaknesses.’’ 16
Accordingly, the Modeling Guidance
recommends conducting evaluations of
both meteorological inputs and air
quality model performance to evaluate
the reliability of the modeling results.
These are important aspects of the
12 84
FR 60920.
CFR 81.303, 51.1303(b).
14 The 2015 ozone primary and secondary
NAAQS are 0.070 parts per million (ppm), while
2008 NAAQS are 0.075 ppm. Both are based on a
three-year average of the annual fourth-highest
daily maximum 8-hour average ozone
concentrations. Accordingly, exceedances of the
2008 NAAQS are also exceedances of the 2015
NAAQS.
15 CAA section 181(b)(2).
16 ‘‘Modeling Guidance for Demonstrating
Attainment of Air Quality Goals for Ozone, PM2.5,
and Regional Haze’’, November 2018, EPA 454/R–
18–009 (‘‘Modeling Guidance’’), 169, 24.
13 40
PO 00000
Frm 00047
Fmt 4700
Sfmt 4700
33573
attainment demonstration. However, the
Modeling Guidance recommendations
are not regulatory requirements, and
there are no recommended pass/fail
thresholds for any particular evaluation
metric. The guidance recommendations
are generally applicable to evaluating
model performance, but there are no
specific requirements that are applicable
or must be met in all cases. The
particular analyses used may vary on a
case-by-case basis, depending on the
availability of modeled and
observational data (both meteorological
and air quality data).
In evaluating the meteorological
inputs to the modeling, MAG followed
the recommendations of the Modeling
Guidance by conducting an ‘‘operational
evaluation’’ focusing on ‘‘the values and
distributions of specific meteorological
parameters as paired with and
compared to observed data.’’ 17
Specifically, MAG used a series of
statistical metrics to compare wind
speed, wind direction, temperature, and
water vapor mixing ratio values from
the model to observations from weather
stations in the NAA. As described in our
proposal, temperature and water vapor
mixing ratios showed good agreement
with observations, with little bias. The
modeled wind speed showed an
overestimate at low wind speeds and an
underestimate at high wind speed.
Modeled wind direction showed poorer
performance for wind directions from
the south-east. MAG asserted that
modeling wind speed and direction in
Phoenix is difficult due to the complex
terrain in the area, but that results are
comparable to the benchmarks
described in the Modeling Guidance.18
The Modeling Guidance explains that
these benchmarks are to be ‘‘used as a
means of assessing general confidence
in the meteorological model data’’ rather
than as ‘‘as a ‘pass/fail’ indicator of the
acceptability of a model simulation.’’ 19
The fact the metrological parameters
used in MAG’s modeling are
comparable to these benchmarks,
despite the challenges presented by the
complex terrain of the area, supports a
conclusion that the meteorological
inputs used by MAG ‘‘represent a
reasonable approximation of the actual
meteorology that occurred during the
modeling period.’’ 20
In addition to an operational
evaluation of meteorological inputs
based on statistical comparisons, the
Modeling Guidance also recommends
that states conduct a phenomenological
17 Modeling
Guidance, 33.
FR 52838, 52844.
19 Modeling Guidance, 33.
20 Id. at 32.
18 84
E:\FR\FM\02JNR1.SGM
02JNR1
33574
Federal Register / Vol. 85, No. 106 / Tuesday, June 2, 2020 / Rules and Regulations
evaluation (i.e., a qualitative
comparison of observed features versus
their depiction in the model data). As
noted in our proposal, while the
inclusion of such an analysis ‘‘would
have provided additional confidence,
the model adequately simulates the
temporal and spatial variability in ozone
concentrations across the area,
suggesting the model captures the
meteorological phenomena that are
important for ozone formation in the
Phoenix area.’’ 21 Therefore, we find that
the absence of a phenomenological
evaluation of meteorological data does
not undermine the overall adequacy of
the modeling.
Concerning air quality model
performance evaluation, the EPA’s
‘‘Guideline on Air Quality Models’’
explains that, ‘‘[t]here are no specific
levels of any model performance metric
that indicate ‘acceptable’ model
performance.’’ 22 Thus, ‘‘[t]he EPA
recommends that air agencies conduct a
variety of performance tests and weigh
them qualitatively to assess model
performance.’’ 23 Specifically, as part of
an operational evaluation, the EPA
recommends evaluating the following
statistical metrics: mean observed, mean
model, mean bias, mean error and/or
root mean square error, normalized
mean bias and/or fractional bias,
normalized mean error and/or fractional
error, and the correlation coefficient.24
In this case, as part of its air quality
model evaluation, MAG evaluated each
of the recommended (except for the
correlation coefficient, for which it
substituted the related ‘‘coefficient of
determination’’) to evaluate ozone
model performance.25 Figures IV–5
through IV–10 of the Modeling technical
support document provide time-series
plots, scatter plots, spatial maps of mean
error and bias, and box plots comparing
model performance with previous
studies. As described in the proposal,
these analyses show that, although there
were ‘‘a few periods where peak ozone
concentrations were underpredicted in
July and overpredicted in August, MAG
modeling statistics are within or close to
the distribution of other published
modeling studies.’’ 26 Accordingly, we
concluded that, ‘‘[o]verall, the
operational evaluation shows good
model performance.’’ 27 As we further
khammond on DSKJM1Z7X2PROD with RULES
21 84
FR 52838, 52844.
on Air Quality Models,’’ 40 CFR
part 51, appendix W, section 5.2.d.
23 Modeling Guidance, 69.
24 Id. at 70–72.
25 MAG 2017 Ozone Plan, Appendix B, Exhibit 1,
(‘‘Modeling Technical Support Document’’ or
‘‘Modeling TSD’’), section IV.
26 84 FR 52838, 52844.
27 Id.
22 ‘‘Guideline
VerDate Sep<11>2014
16:47 Jun 01, 2020
Jkt 250001
noted in our proposal, the ‘‘addition of
some dynamic and diagnostic
evaluations as described in the
Modeling Guidance would have
provided additional confidence.’’ 28
However, the Modeling Guidance also
explains that, ‘‘[g]iven that air agencies
might have limited resources and time
to perform diagnostic and dynamic
evaluation, the use of these methods
may be limited in scope in a typical
regulatory modeling application.’’ 29
Accordingly, we do not consider the
omission of such dynamic and
diagnostic evaluations to undercut the
adequacy of the modeling.
In sum, the meteorological inputs
were reasonable, and the Plan
demonstrated good air quality model
performance. Furthermore, in addition
to the modeling demonstration, the Plan
also contains a comprehensive ‘‘weight
of evidence’’ analysis, consisting of
several supplemental analyses that
further support the modeled attainment
demonstration.30 These include ozone
air quality trends and precursor
emission trends, both of which show
continued progress and support the
conclusion that the attainment
demonstration is sound. Other analyses
include: an evaluation of the sensitivity
of the model to oxides of nitrogen (NOX)
and volatile organic compound (VOC)
emissions reductions; a comparison to
the EPA’s modeling for the Cross-State
Air Pollution Rule, which projects the
area will be in attainment in 2017; a
process analysis using the VOC:NOX
ratio as a photochemical indicator; and
an examination of weekday versus
weekend effects. These analyses provide
assurance that the model is adequately
simulating the physical and chemical
processes leading to ozone in the
atmosphere and that the model
responds in a scientifically reasonable
way to emissions changes. Therefore,
we do not agree with the commenter
that we should disapprove the
attainment demonstration in the MAG
2017 Ozone Plan based on the
modeling.
Comment 1.f: The commenter
supported the EPA’s proposal to
disapprove the contingency measure
element of the Plan based on Bahr v.
EPA,31 but argued that there is no
statutory basis for ‘‘excusing’’ MAG
from including contingency measures in
the Plan. The commenter stated that
CAA section 172(e) ‘‘expressly prevents
EPA from loosening controls applicable
to a nonattainment area when a NAAQS
28 Id.
29 Modeling
Guidance, 68.
FR 52838, 52845.
31 836 F.3d 1218, 1235–1237 (9th Cir. 2016).
30 84
PO 00000
Frm 00048
Fmt 4700
Sfmt 4700
is relaxed,’’ and the EPA applies the
same concept ‘‘where the NAAQS is
made more stringent.’’ Citing South
Coast Air Quality Management District
v. EPA (‘‘South Coast’’),32 the
commenter noted that contingency
measures are ‘‘controls’’ because they
are ‘‘designed to constrain ozone
pollution.’’ Citing South Coast, the
commenter argued that MAG cannot
withdraw its contingency measures
because ‘‘withdrawing measures from a
SIP would also constitute impermissible
backsliding.’’
Response: The commenter’s reliance
on CAA section 172(e) is misplaced.
This provision applies if the EPA
relaxes a NAAQS and requires the EPA
to promulgate ‘‘requirements applicable
to all areas which have not attained that
standard as of the date of such
relaxation.’’ 33 The commenter alleges
that this provision would preclude our
determination that a SIP revision
providing for contingency measures for
the Phoenix NAA for the 2008 ozone
NAAQS is no longer required. The
promulgation of the 2008 ozone NAAQS
was a strengthening from the prior 1997
ozone NAAQS. Accordingly, CAA
section 172(e) is not directly applicable.
The commenter further discusses, but
mischaracterizes, the EPA’s past actions
invoking the principles of section 172(e)
when revoking an ozone standard. The
commenter wrongly suggests that the
EPA has applied section 172(e) in cases
where the Agency strengthens the
NAAQS; this is not true. The EPA has
looked to the principles of section
172(e) to develop anti-backsliding
regulations when the EPA has revoked
ozone standards in order to ensure air
quality protections are preserved during
the transition to a more protective
NAAQS.34 The EPA has not taken any
action to revoke the 2008 ozone
NAAQS.35
The relevant provision of the CAA,
section 172(c)(9), requires
nonattainment plans to ‘‘provide for the
implementation of specific measures to
be undertaken if the area fails to make
[RFP], or to attain the [NAAQS] by the
attainment date applicable under this
part.’’ Thus, contingency measures are
required for two purposes: attainment
32 472
F.3d 882, 900–902 (D.C. Cir. 2006).
U.S.C. 7502.
34 80 FR 12264 (March 6, 2015) (revoking the
1997 ozone NAAQS); 69 FR 23951 (April 30, 2004)
(revoking the 1979 1-hour ozone NAAQS).
35 83 FR 62998 (December 6, 2018) (‘‘The EPA is
not taking any final action regarding our proposed
approach for revoking a prior ozone NAAQS and
establishing anti-backsliding requirements; the
agency intends to address any revocation of the
2008 ozone NAAQS and any potential antibacksliding requirements in a separate future
rulemaking.’’).
33 42
E:\FR\FM\02JNR1.SGM
02JNR1
khammond on DSKJM1Z7X2PROD with RULES
Federal Register / Vol. 85, No. 106 / Tuesday, June 2, 2020 / Rules and Regulations
contingency measures and RFP
contingency measures. On November
12, 2019, the EPA took final action to
determine that the Phoenix NAA
attained the Moderate area 2008 ozone
NAAQS by the attainment date, and
Arizona was no longer required to
provide a SIP submission that includes
attainment contingency measures for the
2008 NAAQS for the Phoenix NAA
because attainment contingency
measures for this NAAQS would never
be required to be implemented.36 With
regard to the RFP contingency measure
requirement, we proposed, in
conjunction with our proposal on the
MAG 2017 Ozone Plan, to find that the
RFP contingency measure requirement
would also no longer apply to the
Phoenix NAA for the 2008 ozone
NAAQS.37 We explained that the EPA’s
long-standing interpretation is that RFP
contingency measures for Moderate
areas would be triggered only by a
finding that the area failed to attain the
standard by the Moderate area
attainment date.38 Because we have
determined that the area has attained
the standard by the attainment date, the
RFP contingency measures have not,
and will not, be triggered. Thus, we
have determined that a SIP revision
addressing RFP contingency measures is
no longer needed.
Comment 1.g: The commenter noted
that section 107(d)(3)(E)(v) prohibits the
EPA from redesignating a NAA to
attainment unless ‘‘the State . . . has
met all requirements applicable to this
area’’ under section 110 and part D of
the CAA, including contingency
measures under section 172(c)(9). The
commenter also quoted CAA section
110(l), which prohibits the EPA from
approving a SIP revision that would
interfere with any applicable
requirement concerning attainment and
RFP or any other applicable requirement
of the CAA.
Response: None of the provisions
cited by the commenter are relevant
either to our disapproval of the
contingency measures for the Phoenix
NAA or to our determination that a SIP
revision addressing contingency
measures is no longer required for the
Phoenix NAA. CAA section
107(d)(3)(E)(v) applies when the EPA is
redesignating an area from
nonattainment to attainment. ADEQ has
not submitted a redesignation request
for the Phoenix NAA, and we have not
proposed to redesignate the area.
36 84
FR 60920.
FR 52838, 52847.
38 Id. (citing 57 FR 13498, 13511 (April 16, 1992)
and Memorandum dated March 11, 1993, from G.T.
Helms, Chief Ozone/Carbon Monoxide Programs
Branch, to Air Branch Chief, Regions I–X).
37 84
VerDate Sep<11>2014
16:47 Jun 01, 2020
Jkt 250001
Therefore, CAA section 107(d)(3)(E)(v)
does not apply to this action.
CAA section 110(l) prohibits the EPA
from approving a SIP revision that
would interfere with any applicable
requirement of the CAA. Because we are
disapproving the contingency measure
element of the Plan, this requirement
does not apply to our action on the
contingency measure portion of the
Plan. To the extent the commenter is
suggesting that our approval of the
remainder of the 2017 MAG Ozone Plan
would interfere with any applicable
requirement of the CAA, we do not
agree. First, in this action, the EPA is
not approving the removal of any
existing provisions in the approved
Arizona SIP, and thus there is no
concern that our approval action would
interfere with any applicable CAA
requirement. Second, to the extent that
the commenter is concerned that the
EPA’s approval of the nonattainment
plan without contingency measures
contravenes the requirements of the
CAA to include such measures, the EPA
has determined that such measures are
not in fact required for this area for this
NAAQS for the reasons described in our
response to comment 1.f in this action.
Section 110(l) prohibits the EPA’s
approval of a SIP revision if it would
interfere with any applicable
requirement concerning attainment and
reasonable further progress, or any other
applicable requirement of the CAA.
Given that attainment contingency
measures and RFP contingency
measures are no longer applicable
requirements, following the EPA’s final
action to determine the area attained by
the attainment date, the EPA’s approval
of the remainder of the SIP submission
is consistent with CAA section 110(l).
For the reasons discussed in our
proposal and in this document, we find
that the Plan meets all applicable CAA
requirements. Therefore, our approval of
the other elements of the Plan complies
with CAA section 110(l).
Comment 1.h: The commenter stated
that there was no merit to the EPA’s
argument that based on the ‘‘milestone’’
requirement for ozone NAAs classified
as ‘‘Serious’’ or higher, the RFP
contingency measures are no longer
required. In particular, citing South
Coast, the commenter asserted that
‘‘[t]his provision demonstrates that
when Congress intended to exempt
nonattainment areas from statutory
requirements, it did so expressly.’’ The
commenter concluded that the EPA
must disapprove the contingency
measure element of the Plan and require
the adoption of additional contingency
measures consistent with Bahr.
PO 00000
Frm 00049
Fmt 4700
Sfmt 4700
33575
Response: In our proposal, we
explained that under CAA section
182(g), ozone nonattainment areas
classified Serious or higher are required
to meet RFP emissions reduction
milestones and to demonstrate
compliance with those milestones,
except when the milestone coincides
with the attainment date and the
standard has been attained. We noted
that this specific statutory exemption
from milestone compliance
demonstration submittals for areas that
attained by the attainment date
indicates that Congress intended that a
finding that an area attained the
standard—the finding made in a
determination of attainment by the
attainment date—would serve as a
demonstration that RFP requirements
for the area have been met. Therefore, a
finding that a Serious or above area has
attained the NAAQS by the attainment
date would also indicate that RFP
contingency measures could not be
triggered and are therefore no longer
necessary.
The commenter points to the absence
of a similar exemption (i.e., an
exemption from RFP milestone
compliance demonstration submittals
when the milestone coincides with the
attainment date and the standard has
been attained) for Moderate areas. The
commenter appears to be arguing that
this omission indicates that Congress
intended to subject Moderate areas to
the requirement for RFP contingency
measures, even if they attained the
NAAQS by the attainment date.
Contrary to the commenter’s suggestion,
however, Congress expressly exempted
Moderate areas from all RFP milestone
compliance demonstration submittals.39
Accordingly, unlike for Serious and
above areas, Congress did not need to
provide a specific exemption for a
milestone coinciding with the
attainment date for Moderate areas. The
overall statutory exemption from
requirements for RFP milestone
compliance demonstration submittals in
Moderate areas supports the EPA’s
interpretation that RFP contingency
measures in Moderate ozone NAAs can
be triggered only by a finding that the
area has failed to attain the standard by
the attainment date.40 Therefore, while
39 CAA section 182(g)(1) (‘‘6 years after November
15, 1990, and at intervals of every 3 years thereafter,
the State shall determine whether each
nonattainment area (other than an area classified as
Marginal or Moderate)’’ has achieved the applicable
milestone).
40 As noted in our proposal, ‘‘a determination of
attainment by the attainment date for a Moderate
area serves as demonstration that RFP requirements
for the area have been met and that RFP
contingency measures are no longer needed. Thus,
E:\FR\FM\02JNR1.SGM
Continued
02JNR1
33576
Federal Register / Vol. 85, No. 106 / Tuesday, June 2, 2020 / Rules and Regulations
we are disapproving the contingency
measure element of the Plan, we are also
determining that Arizona is no longer
required to submit a SIP revision
including contingency measures for the
Phoenix NAA.
Commenter #2—ADEQ
Comment: ADEQ expressed support
for the EPA’s proposed action, including
disapproval of the contingency measure
requirements, provided the EPA
finalizes its determination that the
Phoenix NAA attained the 2008 ozone
standard by the attainment date.
Response: The EPA finalized its
determination that the Phoenix NAA
attained the 2008 ozone standard by the
applicable attainment date on November
12, 2019.41
khammond on DSKJM1Z7X2PROD with RULES
III. Final Action
No comments were submitted that
change our assessment of the
determinations as described in our
proposed action. Therefore, for the
reasons discussed in the preceding
sections and in our proposed rule,
under CAA section 110(k)(3), the EPA is
finalizing approval as a revision to the
Arizona SIP the following portions of
the ‘‘MAG 2017 Eight-Hour Ozone
Moderate Area Plan for the Maricopa
Nonattainment Area,’’ submitted by
ADEQ on December 19, 2016:
• Base year and periodic emission
inventories as meeting the requirements
of CAA sections 172(c)(3), 182(a)(1), and
182(a)(3)(A) and 40 CFR 51.1115(a) and
(b);
• RACM demonstration and control
strategy as meeting the requirements of
CAA section 172(c)(1) and 172(c)(6) and
40 CFR 51.1112(c);
• Attainment demonstration as
meeting the requirements of CAA
section 182(b)(1)(A)(i) and 40 CFR
51.112 and 51.1108(c);
• Rate of progress plan and RFP
demonstration as meeting the
requirements of CAA sections 172(c)(2)
and 182(b)(1) and 40 CFR
51.1110(a)(3)(i);
• Motor vehicle emissions budgets for
the 2017 attainment year because they
are consistent with the RFP
demonstration and the attainment
demonstration approved herein and
meet the other criteria in 40 CFR
93.118(e);
• Vehicle I/M provisions as meeting
the requirements of 40 CFR part 51,
subpart S;
the EPA concludes that RFP contingency measures
for Moderate areas are no longer needed if the area
has attained the relevant NAAQS.’’ 84 FR 52847.
41 84 FR 60920.
VerDate Sep<11>2014
16:47 Jun 01, 2020
Jkt 250001
• NSR discussion as demonstrating
that the requirements of CAA sections
173 and 182(a)(2)(C) have been met; and
• Offset discussion as demonstrating
that the requirements of CAA sections
173 and 182(b)(5) have been met.
The EPA is finalizing disapproval of
the contingency measure element of the
MAG 2017 Ozone Plan for failing to
meet the requirements of CAA sections
172(c)(9) and 182(c)(9). However, based
on our November 12, 2019 finding of
attainment by the applicable attainment
date,42 we are also finalizing our
determination that Arizona is no longer
required to submit a SIP revision
addressing the contingency measures
requirement for failure to meet RFP for
the Phoenix 2008 ozone NAA.
Therefore, our disapproval does not
trigger sanctions or FIP clocks.
Finally, we are finalizing approval of
the NSR and offset elements of the MAG
2014 Ozone Plan as meeting the
Marginal area requirements of CAA
section 182(a)(2)(C) and CAA sections
173 and 182(b)(5), respectively, for the
Phoenix 2008 ozone NAA.
IV. Statutory and Executive Order
Reviews
Additional information about the
following statutes and Executive orders
can be found at https://www2.epa.gov/
laws-regulations/laws-and-executiveorders.
A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
This action is not a significant
regulatory action and was therefore not
submitted to the Office of Management
and Budget (OMB) for review.
B. Executive Order 13711: Reducing
Regulations and Controlling Regulatory
Costs
This action is not an Executive Order
13771 regulatory action because this
action is not significant under Executive
Order 12866.
C. Paperwork Reduction Act (PRA)
This action does not impose an
information collection burden under the
PRA because this action does not
impose additional requirements beyond
those imposed by state law.
D. Regulatory Flexibility Act (RFA)
I certify that this action will not have
a significant economic impact on a
substantial number of small entities
under the RFA. This action will not
impose any requirements on small
42 Id.
PO 00000
Frm 00050
Fmt 4700
Sfmt 4700
entities beyond those imposed by state
law.
E. Unfunded Mandates Reform Act
(UMRA)
This action does not contain any
unfunded mandate as described in
UMRA, 2 U.S.C. 1531–1538, and does
not significantly or uniquely affect small
governments. This action does not
impose additional requirements beyond
those imposed by state law.
Accordingly, no additional costs to
state, local, or tribal governments, or to
the private sector, will result from this
action.
F. Executive Order 13132: Federalism
This action does not have federalism
implications. It will not have substantial
direct effects on the states, on the
relationship between the National
Government and the states, or on the
distribution of power and
responsibilities among the various
levels of government.
G. Executive Order 13175: Coordination
With Indian Tribal Governments
This action does not have tribal
implications, as specified in Executive
Order 13175, because the SIP is not
approved to apply on any Indian
reservation land or in any other area
where the EPA or an Indian tribe has
demonstrated that a tribe has
jurisdiction, and will not impose
substantial direct costs on tribal
governments or preempt tribal law.
Thus, Executive Order 13175 does not
apply to this action.
H. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
The EPA interprets Executive Order
13045 as applying only to those
regulatory actions that concern
environmental health or safety risks that
the EPA has reason to believe may
disproportionately affect children, per
the definition of ‘‘covered regulatory
action’’ in section 2–202 of the
Executive order. This action is not
subject to Executive Order 13045
because it does not impose additional
requirements beyond those imposed by
state law.
I. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution, or Use
This action is not subject to Executive
Order 13211, because it is not a
significant regulatory action under
Executive Order 12866.
E:\FR\FM\02JNR1.SGM
02JNR1
33577
Federal Register / Vol. 85, No. 106 / Tuesday, June 2, 2020 / Rules and Regulations
J. National Technology Transfer and
Advancement Act (NTTAA)
Section 12(d) of the NTTAA directs
the EPA to use voluntary consensus
standards in its regulatory activities
unless to do so would be inconsistent
with applicable law or otherwise
impractical. The EPA believes that this
action is not subject to the requirements
of section 12(d) of the NTTAA because
application of those requirements would
be inconsistent with the CAA.
circuit by August 3, 2020. Filing a
petition for reconsideration by the
Administrator of this final rule does not
affect the finality of this rule for the
purposes of judicial review nor does it
extend the time within which a petition
for judicial review may be filed, and
shall not postpone the effectiveness of
such rule or action. This action may not
be challenged later in proceedings to
enforce its requirements (see section
307(b)(2)).
List of Subjects in 40 CFR Part 52
K. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Population
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Reporting and
recordkeeping requirements, Volatile
organic compounds.
The EPA lacks the discretionary
authority to address environmental
justice in this rulemaking.
Authority: 42 U.S.C. 7401 et seq.
L.Congressional Review Act (CRA)
This action is subject to the CRA, and
the EPA will submit a rule report to
each House of the Congress and to the
Comptroller General of the United
States. This action is not a ‘‘major rule’’
as defined by 5 U.S.C. 804(2).
M. Petitions for Judicial Review
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
Dated: May 1, 2020.
John Busterud,
Regional Administrator, Region IX.
Part 52, chapter I, title 40 of the Code
of Federal Regulations is amended as
follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
Authority: 42 U.S.C. 7401 et seq.
Subpart D—Arizona
2. Section 52.120 is amended in table
1 in paragraph (e), under the heading
‘‘Part D Elements and Plans for the
Metropolitan Phoenix and Tucson
Areas,’’ by adding entries for ‘‘MAG
2017 Eight-Hour Ozone Moderate Area
Plan for the Maricopa Nonattainment
Area (December 2016)’’ and ‘‘MAG 2014
Eight-Hour Ozone Plan—Submittal of
Marginal Area Requirements for the
Maricopa Nonattainment Area (June
2014), Sections titled ‘‘A Nonattainment
Area Preconstruction Permit Program—
CAA section 182(a)(2)(C),’’ ‘‘New Source
Review—CAA, Title I, Part D,’’ and
‘‘Offset Requirements: 1:1 to 1 (Ratio of
Total Emission Reductions of Volatile
Organic Compounds to Total Increased
Emissions)—CAA Section 182(a)(4)’’ on
pages 8 and 9’’ after the entry for
‘‘Reasonably Available Control
Technology (RACT) Analysis, Negative
Declaration and Rules Adoption’’ to
read as follows:
■
§ 52.120
*
1. The authority citation for part 52
continues to read as follows:
■
Identification of plan.
*
*
*
*
(e) * * *
TABLE 1—EPA-APPROVED NON-REGULATORY AND QUASI-REGULATORY MEASURES
[Excluding certain resolutions and statutes, which are listed in tables 2 and 3, respectively] 1
Applicable geographic or
nonattainment area or title/
subject
Name of SIP provision
State submittal
date
EPA approval date
Explanation
The State of Arizona Air Pollution Control Implementation Plan
*
*
*
*
*
*
*
khammond on DSKJM1Z7X2PROD with RULES
Part D Elements and Plans for the Metropolitan Phoenix and Tucson Areas
*
*
MAG 2017 Eight-Hour Ozone Moderate Area Plan for
the Maricopa Nonattainment Area (December 2016).
*
*
Phoenix-Mesa 2008 8-hour
ozone nonattainment
area.
MAG 2014 Eight-Hour Ozone Plan—Submittal of Marginal Area Requirements for the Maricopa Nonattainment Area (June 2014), Sections titled ‘‘A Nonattainment Area Preconstruction Permit Program—CAA
section 182(a)(2)(C),’’ ‘‘New Source Review—CAA,
Title I, Part D,’’ and ‘‘Offset Requirements: 1:1 to 1
(Ratio of Total Emission Reductions of Volatile Organic Compounds to Total Increased Emissions)—
CAA Section 182(a)(4)’’ on pages 8 and 9.
Phoenix-Mesa 2008 8-hour
ozone nonattainment
area.
*
*
*
*
December 19,
2016.
July 2, 2014 .........
*
*
[Insert Federal Register
Citation], June 2, 2020.
[Insert Federal Register
Citation], June 2, 2020.
*
*
1 Table
*
Adopted by the Arizona
Department of Environmental Quality on December 13, 2016.
Other provisions of the
MAG 2014 Eight-Hour
Ozone Plan—Submittal
of Marginal Area Requirements for the Maricopa Nonattainment
Area (June 2014) were
approved on October 16,
2015.
*
1 is divided into three parts: Clean Air Act Section 110(a)(2) State Implementation Plan Elements (excluding Part D Elements and Plans), Part D Elements
and Plans (other than for the Metropolitan Phoenix or Tucson Areas), and Part D Elements and Plans for the Metropolitan Phoenix and Tucson Areas.
*
*
*
*
*
[FR Doc. 2020–09732 Filed 6–1–20; 8:45 am]
BILLING CODE 6560–50–P
VerDate Sep<11>2014
16:47 Jun 01, 2020
Jkt 250001
PO 00000
Frm 00051
Fmt 4700
Sfmt 4700
E:\FR\FM\02JNR1.SGM
02JNR1
]]>Agencies
[Federal Register Volume 85, Number 106 (Tuesday, June 2, 2020)]
[Rules and Regulations]
[Pages 33571-33577]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-09732]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2019-0541; FRL-10009-19-Region 9]
Clean Air Plans; 2008 8-Hour Ozone Nonattainment Area
Requirements; Phoenix-Mesa, Arizona
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is taking final
action on a state implementation plan (SIP) revision submitted by the
State of Arizona on behalf of the Maricopa Association of Governments
(MAG) to meet Clean Air Act (CAA or ``the Act'') requirements for the
2008 ozone national ambient air quality standards (NAAQS or
``standards'') in the Phoenix-Mesa (``Phoenix'') ozone nonattainment
area (NAA). The EPA is finalizing approval of the portions of the ``MAG
2017 Eight-Hour Ozone Moderate Area Plan for the Maricopa Nonattainment
Area (December 2016)'' (``MAG 2017 Ozone Plan'' or ``Plan'') that
address the requirements for emissions inventories, a demonstration of
attainment by the applicable attainment date, reasonably available
control measures (RACM), reasonable further progress (RFP), motor
vehicle emission budgets for transportation conformity, vehicle
inspection and maintenance (I/M) programs, new source review (NSR)
rules, and offsets. The EPA is finalizing a disapproval of the portion
of the MAG 2017 Ozone Plan that addresses the requirements for
contingency measures for failure to attain or to make RFP. However,
based on a separate finding that the Phoenix 2008 ozone NAA (``Phoenix
NAA'') attained the 2008 ozone standards by the applicable attainment
date, we previously determined that the requirement for the State to
submit a SIP revision addressing attainment contingency measures no
longer applies for the Phoenix NAA. We are also finalizing our
determination that the requirement for the State to submit a SIP
revision addressing RFP contingency measures no longer applies for the
Phoenix NAA. Finally, we are finalizing approval of the portions of a
SIP revision, the ``MAG 2014 Eight-Hour Ozone Plan--Submittal of
Marginal Area Requirements for the Maricopa Nonattainment Area (June
2014)'' (``MAG 2014 Ozone Plan''), on which we previously deferred
action.
DATES: This rule is effective on July 2, 2020.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R09-OAR-2019-0541. All documents in the docket are
listed on the https://www.regulations.gov website. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
material, is not placed on the internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available through https://www.regulations.gov, or please contact the
person identified in the FOR FURTHER INFORMATION CONTACT section for
additional availability information.
FOR FURTHER INFORMATION CONTACT: Nancy Levin, EPA Region IX, 75
Hawthorne Street, San Francisco, CA 94105. Phone: (415) 972-3848 or by
email at [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' refer to the EPA.
Table of Contents
I. Proposed Action
II. Public Comments and EPA Responses
III. Final Action
IV. Statutory and Executive Order Reviews
I. Proposed Action
On October 3, 2019, the EPA proposed action on a SIP revision
submitted by the State of Arizona on behalf of MAG to meet CAA
requirements for the 2008 ozone NAAQS \1\ in the Phoenix NAA.\2\ We
also proposed to approve the portions of a SIP revision, the MAG 2014
Ozone Plan, on which we previously deferred action. Our proposed action
contains more information on the MAG 2017 Ozone Plan, the MAG 2014
Ozone Plan, and our evaluation of these submittals.
---------------------------------------------------------------------------
\1\ Since the 2008 primary and secondary NAAQS for ozone are
identical, for convenience, we refer to both as ``the 2008 ozone
NAAQS'' or ``the 2008 ozone standard.''
\2\ 84 FR 52838.
---------------------------------------------------------------------------
II. Public Comments and EPA Responses
The EPA's proposed action provided a 30-day public comment period.
During this period, we received comments from two commenters: (1)
Arizona Center for Law in the Public Interest (ACLPI) on behalf of
ACLPI, the Sierra Club-Grand Canyon Chapter, and their supporters and
members who live and work in the Phoenix metropolitan area; and (2) the
Arizona Department of Environmental Quality (ADEQ). We summarize the
comments and provide our responses below. All the comments received are
included in the docket for this action.
Commenter #1--ACLPI
Comment 1.a: The commenter asserted that MAG should do more to
combat worsening ozone pollution, particularly given the area's
economic expansion and population, but that in this Plan, MAG relied on
existing controls, tightening fuel standards, and fleet turnover, which
are not enough to achieve attainment. Specifically, ACLPI noted that
the Act and the 2008 Ozone SIP Requirements Rule (SRR) require
implementation of RACM to achieve attainment as expeditiously as
practicable and to meet RFP requirements; and that ``[s]tates should
consider all available measures, including those being implemented in
other areas.'' The commenter stated that ``MAG did not incorporate any
new control measures in the Plan'' and that the Plan's reliance on
existing control measures, tighter fuel standards, and fleet turnover,
is ``clearly not enough to reach attainment in the Phoenix NAA.'' The
commenter also asserted that economic expansion and population growth
in the Phoenix area will continue to drive onroad and nonroad mobile
source emissions upwards, and that ``MAG and its member agencies should
lead the way in finding more effective and long-lasting solutions to
Phoenix's ozone pollution problem.''
Response: We do not agree that the controls reflected in the Plan
are insufficient to achieve attainment of the 2008 ozone NAAQS in the
Phoenix NAA. For the reasons described in our proposal and in response
to ACLPI's other comments in this document, we find that the Plan
adequately demonstrates that the area will attain the 2008 Ozone NAAQS
by the attainment date and meets all other applicable requirements,
including RACM requirements. In particular, the Plan documents that the
State did consider whether additional measures
[[Page 33572]]
were reasonably available as part of its RACM analysis, but determined
that no new control measures were needed to attain the NAAQS or achieve
RFP in the Phoenix NAA at this time.\3\ As described in our proposal,
this analysis follows the approach outlined in the SRR, which provides
that states need only adopt those control measures that ``will advance
the attainment date or contribute to RFP for the area.'' \4\ ACLPI has
not provided any information or analysis that undermines our conclusion
that the MAG 2017 Ozone Plan meets this requirement.
---------------------------------------------------------------------------
\3\ Plan Chapter 4.
\4\ 80 FR 12264, 12282 (March 6, 2015).
---------------------------------------------------------------------------
Comment 1.b: ACLPI commented that the area exceeded the 2008 ozone
standard multiple days in 2015 through 2019, and that the design value
for the 2017 attainment year exceeded the 2008 ozone NAAQS when
``unsupported `exceptional events' exceedances on June 20, 2015 are
included in the calculation.'' The commenter also stated that, even
assuming these exceedances were properly excluded, the design value for
2018 was 77 parts per billion (ppb). On this basis, the commenter
asserted that ``any paper `attainment' of the 2008 standard in 2017 was
fleeting and not the result of permanent emission reductions.''
Finally, the commenter stated that 2018 monitoring data indicate that
ozone concentrations have increased since 2016 and that the Phoenix
metropolitan area is ranked 7th on the American Lung Association's list
of the most ozone-polluted cities in the U.S.
Response: Under the CAA, a determination of whether an area has
attained by the attainment date is a separate action from the review of
an attainment demonstration in a SIP revision. The EPA's review of the
SIP revision occurs under CAA section 110(k), while a determination of
whether an area has failed to attain is governed by CAA section
181(b)(2). Under section 181(b)(2), the EPA must determine whether an
ozone NAA has attained the applicable NAAQS ``[w]ithin 6 months
following the applicable attainment date (including any extension
thereof).'' In this instance, the EPA has already undertaken a separate
final action to determine, pursuant to section 181(b)(2), that the
Phoenix NAA attained the 2008 ozone NAAQS by the ``Moderate'' area
attainment date, based on 2015-2017 monitoring data.\5\ That separate
action was based, in part, on our prior concurrence with ADEQ's
demonstration that, based on the weight of evidence, the ozone
exceedances that occurred on June 20, 2015, were caused by wildfire
ozone exceptional events.\6\ These separate actions are beyond the
scope of this final rule.
---------------------------------------------------------------------------
\5\ 84 FR 60920 (November 12, 2019).
\6\ Letter dated May 7, 2019, from Elizabeth J. Adams, Director,
Air Division, EPA Region IX, to Timothy S. Franquist, Director, Air
Quality Division, ADEQ.
---------------------------------------------------------------------------
We do not consider the exceedances of the 2008 ozone standard in
2018 and 2019, years after the area's applicable attainment date, to be
relevant to the approvability of the State's demonstration that this
area would attain the 2008 ozone NAAQS by the attainment date, as
discussed in our response to comment 1.d.
Comment 1.c: ACLPI stated that the EPA's approval of the Plan
``would defer or significantly delay taking meaningful actions to
protect . . . vulnerable residents, contravening the Act's express
policy that `protection of public health is the highest priority' ''
(quoting CAA section 319(b)(3)(A)).
The commenter further asserted that MAG and its member agencies
should act now to ``promote and implement clean mobility measures,''
such as converting all or part of government fleets to zero-emission
vehicles and offering tax incentives and rebate programs to residents
who purchase electric vehicles, to bring the Phoenix area into
compliance with ozone standards ``with an adequate margin of safety and
to ensure that such compliance is maintained.'' In addition, the
commenter argued that ``MAG should do more to control ozone precursor
emissions from gas-powered lawn equipment.'' Finally, citing MAG's RACM
analysis in Chapter 4 of the Plan, the commenter argued that MAG should
evaluate additional control measures from the EPA's menu of control
measures and measures adopted by the Sacramento Metropolitan Air
Quality Management District, at least as contingency measures.
Response: Our approval is based on our finding that the Plan meets
all of the applicable requirements of the Act, as described in our
proposal and in this document. Under CAA section 110(k)(3), the EPA is
required to approve any SIP submittal that meets all such requirements.
The EPA cannot require states to adopt measures that are more stringent
than necessary to meet CAA requirements. While we encourage ADEQ, MAG,
and Maricopa and Pinal Counties to consider adopting the measures
suggested by the commenter, we have determined that these measures are
not necessary to provide for attainment of the 2008 ozone NAAQS in the
Phoenix NAA by the attainment date or to meet RFP requirements, and are
therefore not needed to meet RACM requirements. As noted in our
response to comment 1.b, the EPA has determined, pursuant to section
181(b)(2), that the Phoenix NAA attained the 2008 ozone NAAQS by the
``Moderate'' area attainment date. In addition, for the reasons
described in our response to comment 1.f, we find that RFP contingency
measures are not required for the Phoenix NAA at this time. Therefore,
ADEQ, MAG, and the counties are not required to adopt any additional
control measures for purposes of the MAG 2017 Ozone Plan.
Furthermore, the commenter's reliance on CAA section 319(b)(3)(A)
is misplaced. This provision establishes five principles that the EPA
must follow in developing implementing regulations for exceptional
events, including that ``protection of public health is the highest
priority.'' \7\ As noted in our response to comment 1.b, we previously
concurred with ADEQ's demonstration that, based on the weight of
evidence, the ozone exceedances that occurred on June 20, 2015, were
caused by wildfire ozone exceptional events.\8\ This was done through a
separate Agency action and is beyond the scope of this final rule.
Requirements for exceptional events demonstrations are not directly
relevant to the EPA's action on an attainment plan pursuant to CAA
section 110(k)(3).
---------------------------------------------------------------------------
\7\ CAA section 319(b)(3)(A)(i).
\8\ Letter dated May 7, 2019, from Elizabeth J. Adams, Director,
Air Division, EPA Region IX, to Timothy S. Franquist, Director, Air
Quality Division, ADEQ.
---------------------------------------------------------------------------
Comment 1.d: ACLPI asserted that ``the EPA should disapprove the
Plan's attainment demonstration because it does not demonstrate that
the Phoenix NAA attained the 2008 standard by the July 20, 2018
attainment date or made RFP goals.'' The commenter stated that MAG
erred in omitting ozone exceedances that occurred on June 20, 2015,
from the 2015-2017 design value calculation. The commenter also argued
that the ``EPA cannot simply ignore the fact that monitors in the
Phoenix NAA have continued to record numerous violations of the 2008
ozone standard in 2018 and 2019, or that the 8-hour ozone design value
for the Phoenix NAA in 2018 was 77 ppb.''
Response: We do not agree with the commenter's argument that the
EPA should disapprove the attainment demonstration because it did not
demonstrate that the area factually attained or achieved RFP, or with
the commenter's assertions concerning
[[Page 33573]]
exceptional events and the consideration of monitoring data collected
after the Moderate attainment date.
MAG has satisfied the legal and regulatory criteria for attainment
demonstrations. Contrary to the commenter's suggestion, the CAA does
not require an attainment demonstration to show that an area has
attained the NAAQS based on monitored values, or that it has achieved
emissions reductions corresponding to RFP. Such demonstrations would
not be practical, given that attainment demonstrations are generally
required to be submitted to the EPA well before the milestone and
attainment dates.\9\ Rather, the CAA requires states to submit SIP
revisions that ``provide for attainment'' of the NAAQS by the
attainment date and ``require'' RFP.\10\
---------------------------------------------------------------------------
\9\ See, e.g., CAA section 181(a)(1) (setting the attainment
date for Moderate areas of 6 years after November 15, 1990); and
182(b)(1)(A) (requiring submittal of attainment demonstration for
Moderate areas 3 years after November 15, 1990 and setting RFP
milestone date of 6 years after November 15, 1990).
\10\ CAA sections 172(c)(1), (2), and (6).
---------------------------------------------------------------------------
To address the requirements to provide for attainment and submit an
attainment demonstration, the MAG 2017 Ozone Plan includes an
attainment demonstration using air quality modeling that shows that
existing control measures are sufficient for the Phoenix area to attain
the 2008 ozone standard by 2017. In particular, to predict future ozone
levels, the modeled attainment demonstration uses a baseline design
value derived from historical monitoring data, historical
meteorological data from the baseline period, emissions inventories
representing the baseline design value period, and modeled reductions
in emissions based on SIP control measures. The modeled attainment
demonstration is intended to assess whether SIP controls are adequate
to reduce ambient ozone to a level at or below the NAAQS by the
attainment date.\11\
---------------------------------------------------------------------------
\11\ 40 CFR 51.1108(c)(attainment demonstration must be ``based
on photochemical grid modeling or any other analytical method
determined . . . to be at least as effective.'').
---------------------------------------------------------------------------
The modeled attainment demonstration showed that the emissions
reductions would provide for attainment of the 2008 ozone NAAQS by the
attainment date. As a separate matter, as described in our response to
comment 1.b, the monitoring data for 2015-2017 show attainment, and the
EPA has already determined in a prior final Agency action that the area
attained the 2008 ozone NAAQS by the attainment date based on these
data.\12\ Data from 2018 and preliminary data from 2019 for the area do
not alter our assessment of the modeled attainment demonstration for
the 2008 ozone NAAQS. However, we note that the Phoenix area is
currently designated and classified as a ``Marginal'' NAA for the 2015
ozone NAAQS and has a maximum attainment date of August 3, 2021.\13\
The EPA will consider the monitoring data from 2018 through 2020 to
determine whether the area attained the 2015 ozone NAAQS by the
attainment deadline.\14\ If these data show that the area has not
attained, the area would be reclassified to a Moderate NAA for the 2015
ozone NAAQS, and the State would be required to submit a new attainment
plan that addresses the Moderate area requirements for the 2015 ozone
NAAQS.\15\ Therefore, while the 2018-2019 monitoring data for the
Phoenix NAA are not pertinent to our action on the 2017 MAG Ozone Plan,
these data will be relevant to our determination of whether the area
has attained the 2015 ozone standard.
---------------------------------------------------------------------------
\12\ 84 FR 60920.
\13\ 40 CFR 81.303, 51.1303(b).
\14\ The 2015 ozone primary and secondary NAAQS are 0.070 parts
per million (ppm), while 2008 NAAQS are 0.075 ppm. Both are based on
a three-year average of the annual fourth-highest daily maximum 8-
hour average ozone concentrations. Accordingly, exceedances of the
2008 NAAQS are also exceedances of the 2015 NAAQS.
\15\ CAA section 181(b)(2).
---------------------------------------------------------------------------
Comment 1.e: The commenter argued that approval of the attainment
demonstration would be ``problematic, given the weaknesses of MAG's
modeling'' that the EPA identified in the proposed rule.
Response: We do not agree that the ``weaknesses'' identified in our
proposal concerning meteorological inputs and model performance are
obstacles to approving the attainment demonstration in the MAG 2017
Ozone Plan. As an initial matter, it is important to note that the
EPA's ``Modeling Guidance for Demonstrating Attainment of Air Quality
Goals for Ozone, PM2.5, and Regional Haze'' (``Modeling
Guidance'') states, ``[b]y definition, models are simplistic
approximations of complex phenomena'' and ``all models have strengths
and weaknesses.'' \16\ Accordingly, the Modeling Guidance recommends
conducting evaluations of both meteorological inputs and air quality
model performance to evaluate the reliability of the modeling results.
These are important aspects of the attainment demonstration. However,
the Modeling Guidance recommendations are not regulatory requirements,
and there are no recommended pass/fail thresholds for any particular
evaluation metric. The guidance recommendations are generally
applicable to evaluating model performance, but there are no specific
requirements that are applicable or must be met in all cases. The
particular analyses used may vary on a case-by-case basis, depending on
the availability of modeled and observational data (both meteorological
and air quality data).
---------------------------------------------------------------------------
\16\ ``Modeling Guidance for Demonstrating Attainment of Air
Quality Goals for Ozone, PM2.5, and Regional Haze'',
November 2018, EPA 454/R-18-009 (``Modeling Guidance''), 169, 24.
---------------------------------------------------------------------------
In evaluating the meteorological inputs to the modeling, MAG
followed the recommendations of the Modeling Guidance by conducting an
``operational evaluation'' focusing on ``the values and distributions
of specific meteorological parameters as paired with and compared to
observed data.'' \17\ Specifically, MAG used a series of statistical
metrics to compare wind speed, wind direction, temperature, and water
vapor mixing ratio values from the model to observations from weather
stations in the NAA. As described in our proposal, temperature and
water vapor mixing ratios showed good agreement with observations, with
little bias. The modeled wind speed showed an overestimate at low wind
speeds and an underestimate at high wind speed. Modeled wind direction
showed poorer performance for wind directions from the south-east. MAG
asserted that modeling wind speed and direction in Phoenix is difficult
due to the complex terrain in the area, but that results are comparable
to the benchmarks described in the Modeling Guidance.\18\
---------------------------------------------------------------------------
\17\ Modeling Guidance, 33.
\18\ 84 FR 52838, 52844.
---------------------------------------------------------------------------
The Modeling Guidance explains that these benchmarks are to be
``used as a means of assessing general confidence in the meteorological
model data'' rather than as ``as a `pass/fail' indicator of the
acceptability of a model simulation.'' \19\ The fact the metrological
parameters used in MAG's modeling are comparable to these benchmarks,
despite the challenges presented by the complex terrain of the area,
supports a conclusion that the meteorological inputs used by MAG
``represent a reasonable approximation of the actual meteorology that
occurred during the modeling period.'' \20\
---------------------------------------------------------------------------
\19\ Modeling Guidance, 33.
\20\ Id. at 32.
---------------------------------------------------------------------------
In addition to an operational evaluation of meteorological inputs
based on statistical comparisons, the Modeling Guidance also recommends
that states conduct a phenomenological
[[Page 33574]]
evaluation (i.e., a qualitative comparison of observed features versus
their depiction in the model data). As noted in our proposal, while the
inclusion of such an analysis ``would have provided additional
confidence, the model adequately simulates the temporal and spatial
variability in ozone concentrations across the area, suggesting the
model captures the meteorological phenomena that are important for
ozone formation in the Phoenix area.'' \21\ Therefore, we find that the
absence of a phenomenological evaluation of meteorological data does
not undermine the overall adequacy of the modeling.
---------------------------------------------------------------------------
\21\ 84 FR 52838, 52844.
---------------------------------------------------------------------------
Concerning air quality model performance evaluation, the EPA's
``Guideline on Air Quality Models'' explains that, ``[t]here are no
specific levels of any model performance metric that indicate
`acceptable' model performance.'' \22\ Thus, ``[t]he EPA recommends
that air agencies conduct a variety of performance tests and weigh them
qualitatively to assess model performance.'' \23\ Specifically, as part
of an operational evaluation, the EPA recommends evaluating the
following statistical metrics: mean observed, mean model, mean bias,
mean error and/or root mean square error, normalized mean bias and/or
fractional bias, normalized mean error and/or fractional error, and the
correlation coefficient.\24\ In this case, as part of its air quality
model evaluation, MAG evaluated each of the recommended (except for the
correlation coefficient, for which it substituted the related
``coefficient of determination'') to evaluate ozone model
performance.\25\ Figures IV-5 through IV-10 of the Modeling technical
support document provide time-series plots, scatter plots, spatial maps
of mean error and bias, and box plots comparing model performance with
previous studies. As described in the proposal, these analyses show
that, although there were ``a few periods where peak ozone
concentrations were underpredicted in July and overpredicted in August,
MAG modeling statistics are within or close to the distribution of
other published modeling studies.'' \26\ Accordingly, we concluded
that, ``[o]verall, the operational evaluation shows good model
performance.'' \27\ As we further noted in our proposal, the ``addition
of some dynamic and diagnostic evaluations as described in the Modeling
Guidance would have provided additional confidence.'' \28\ However, the
Modeling Guidance also explains that, ``[g]iven that air agencies might
have limited resources and time to perform diagnostic and dynamic
evaluation, the use of these methods may be limited in scope in a
typical regulatory modeling application.'' \29\ Accordingly, we do not
consider the omission of such dynamic and diagnostic evaluations to
undercut the adequacy of the modeling.
---------------------------------------------------------------------------
\22\ ``Guideline on Air Quality Models,'' 40 CFR part 51,
appendix W, section 5.2.d.
\23\ Modeling Guidance, 69.
\24\ Id. at 70-72.
\25\ MAG 2017 Ozone Plan, Appendix B, Exhibit 1, (``Modeling
Technical Support Document'' or ``Modeling TSD''), section IV.
\26\ 84 FR 52838, 52844.
\27\ Id.
\28\ Id.
\29\ Modeling Guidance, 68.
---------------------------------------------------------------------------
In sum, the meteorological inputs were reasonable, and the Plan
demonstrated good air quality model performance. Furthermore, in
addition to the modeling demonstration, the Plan also contains a
comprehensive ``weight of evidence'' analysis, consisting of several
supplemental analyses that further support the modeled attainment
demonstration.\30\ These include ozone air quality trends and precursor
emission trends, both of which show continued progress and support the
conclusion that the attainment demonstration is sound. Other analyses
include: an evaluation of the sensitivity of the model to oxides of
nitrogen (NOX) and volatile organic compound (VOC) emissions
reductions; a comparison to the EPA's modeling for the Cross-State Air
Pollution Rule, which projects the area will be in attainment in 2017;
a process analysis using the VOC:NOX ratio as a
photochemical indicator; and an examination of weekday versus weekend
effects. These analyses provide assurance that the model is adequately
simulating the physical and chemical processes leading to ozone in the
atmosphere and that the model responds in a scientifically reasonable
way to emissions changes. Therefore, we do not agree with the commenter
that we should disapprove the attainment demonstration in the MAG 2017
Ozone Plan based on the modeling.
---------------------------------------------------------------------------
\30\ 84 FR 52838, 52845.
---------------------------------------------------------------------------
Comment 1.f: The commenter supported the EPA's proposal to
disapprove the contingency measure element of the Plan based on Bahr v.
EPA,\31\ but argued that there is no statutory basis for ``excusing''
MAG from including contingency measures in the Plan. The commenter
stated that CAA section 172(e) ``expressly prevents EPA from loosening
controls applicable to a nonattainment area when a NAAQS is relaxed,''
and the EPA applies the same concept ``where the NAAQS is made more
stringent.'' Citing South Coast Air Quality Management District v. EPA
(``South Coast''),\32\ the commenter noted that contingency measures
are ``controls'' because they are ``designed to constrain ozone
pollution.'' Citing South Coast, the commenter argued that MAG cannot
withdraw its contingency measures because ``withdrawing measures from a
SIP would also constitute impermissible backsliding.''
---------------------------------------------------------------------------
\31\ 836 F.3d 1218, 1235-1237 (9th Cir. 2016).
\32\ 472 F.3d 882, 900-902 (D.C. Cir. 2006).
---------------------------------------------------------------------------
Response: The commenter's reliance on CAA section 172(e) is
misplaced. This provision applies if the EPA relaxes a NAAQS and
requires the EPA to promulgate ``requirements applicable to all areas
which have not attained that standard as of the date of such
relaxation.'' \33\ The commenter alleges that this provision would
preclude our determination that a SIP revision providing for
contingency measures for the Phoenix NAA for the 2008 ozone NAAQS is no
longer required. The promulgation of the 2008 ozone NAAQS was a
strengthening from the prior 1997 ozone NAAQS. Accordingly, CAA section
172(e) is not directly applicable.
---------------------------------------------------------------------------
\33\ 42 U.S.C. 7502.
---------------------------------------------------------------------------
The commenter further discusses, but mischaracterizes, the EPA's
past actions invoking the principles of section 172(e) when revoking an
ozone standard. The commenter wrongly suggests that the EPA has applied
section 172(e) in cases where the Agency strengthens the NAAQS; this is
not true. The EPA has looked to the principles of section 172(e) to
develop anti-backsliding regulations when the EPA has revoked ozone
standards in order to ensure air quality protections are preserved
during the transition to a more protective NAAQS.\34\ The EPA has not
taken any action to revoke the 2008 ozone NAAQS.\35\
---------------------------------------------------------------------------
\34\ 80 FR 12264 (March 6, 2015) (revoking the 1997 ozone
NAAQS); 69 FR 23951 (April 30, 2004) (revoking the 1979 1-hour ozone
NAAQS).
\35\ 83 FR 62998 (December 6, 2018) (``The EPA is not taking any
final action regarding our proposed approach for revoking a prior
ozone NAAQS and establishing anti-backsliding requirements; the
agency intends to address any revocation of the 2008 ozone NAAQS and
any potential anti-backsliding requirements in a separate future
rulemaking.'').
---------------------------------------------------------------------------
The relevant provision of the CAA, section 172(c)(9), requires
nonattainment plans to ``provide for the implementation of specific
measures to be undertaken if the area fails to make [RFP], or to attain
the [NAAQS] by the attainment date applicable under this part.'' Thus,
contingency measures are required for two purposes: attainment
[[Page 33575]]
contingency measures and RFP contingency measures. On November 12,
2019, the EPA took final action to determine that the Phoenix NAA
attained the Moderate area 2008 ozone NAAQS by the attainment date, and
Arizona was no longer required to provide a SIP submission that
includes attainment contingency measures for the 2008 NAAQS for the
Phoenix NAA because attainment contingency measures for this NAAQS
would never be required to be implemented.\36\ With regard to the RFP
contingency measure requirement, we proposed, in conjunction with our
proposal on the MAG 2017 Ozone Plan, to find that the RFP contingency
measure requirement would also no longer apply to the Phoenix NAA for
the 2008 ozone NAAQS.\37\ We explained that the EPA's long-standing
interpretation is that RFP contingency measures for Moderate areas
would be triggered only by a finding that the area failed to attain the
standard by the Moderate area attainment date.\38\ Because we have
determined that the area has attained the standard by the attainment
date, the RFP contingency measures have not, and will not, be
triggered. Thus, we have determined that a SIP revision addressing RFP
contingency measures is no longer needed.
---------------------------------------------------------------------------
\36\ 84 FR 60920.
\37\ 84 FR 52838, 52847.
\38\ Id. (citing 57 FR 13498, 13511 (April 16, 1992) and
Memorandum dated March 11, 1993, from G.T. Helms, Chief Ozone/Carbon
Monoxide Programs Branch, to Air Branch Chief, Regions I-X).
---------------------------------------------------------------------------
Comment 1.g: The commenter noted that section 107(d)(3)(E)(v)
prohibits the EPA from redesignating a NAA to attainment unless ``the
State . . . has met all requirements applicable to this area'' under
section 110 and part D of the CAA, including contingency measures under
section 172(c)(9). The commenter also quoted CAA section 110(l), which
prohibits the EPA from approving a SIP revision that would interfere
with any applicable requirement concerning attainment and RFP or any
other applicable requirement of the CAA.
Response: None of the provisions cited by the commenter are
relevant either to our disapproval of the contingency measures for the
Phoenix NAA or to our determination that a SIP revision addressing
contingency measures is no longer required for the Phoenix NAA. CAA
section 107(d)(3)(E)(v) applies when the EPA is redesignating an area
from nonattainment to attainment. ADEQ has not submitted a
redesignation request for the Phoenix NAA, and we have not proposed to
redesignate the area. Therefore, CAA section 107(d)(3)(E)(v) does not
apply to this action.
CAA section 110(l) prohibits the EPA from approving a SIP revision
that would interfere with any applicable requirement of the CAA.
Because we are disapproving the contingency measure element of the
Plan, this requirement does not apply to our action on the contingency
measure portion of the Plan. To the extent the commenter is suggesting
that our approval of the remainder of the 2017 MAG Ozone Plan would
interfere with any applicable requirement of the CAA, we do not agree.
First, in this action, the EPA is not approving the removal of any
existing provisions in the approved Arizona SIP, and thus there is no
concern that our approval action would interfere with any applicable
CAA requirement. Second, to the extent that the commenter is concerned
that the EPA's approval of the nonattainment plan without contingency
measures contravenes the requirements of the CAA to include such
measures, the EPA has determined that such measures are not in fact
required for this area for this NAAQS for the reasons described in our
response to comment 1.f in this action. Section 110(l) prohibits the
EPA's approval of a SIP revision if it would interfere with any
applicable requirement concerning attainment and reasonable further
progress, or any other applicable requirement of the CAA. Given that
attainment contingency measures and RFP contingency measures are no
longer applicable requirements, following the EPA's final action to
determine the area attained by the attainment date, the EPA's approval
of the remainder of the SIP submission is consistent with CAA section
110(l). For the reasons discussed in our proposal and in this document,
we find that the Plan meets all applicable CAA requirements. Therefore,
our approval of the other elements of the Plan complies with CAA
section 110(l).
Comment 1.h: The commenter stated that there was no merit to the
EPA's argument that based on the ``milestone'' requirement for ozone
NAAs classified as ``Serious'' or higher, the RFP contingency measures
are no longer required. In particular, citing South Coast, the
commenter asserted that ``[t]his provision demonstrates that when
Congress intended to exempt nonattainment areas from statutory
requirements, it did so expressly.'' The commenter concluded that the
EPA must disapprove the contingency measure element of the Plan and
require the adoption of additional contingency measures consistent with
Bahr.
Response: In our proposal, we explained that under CAA section
182(g), ozone nonattainment areas classified Serious or higher are
required to meet RFP emissions reduction milestones and to demonstrate
compliance with those milestones, except when the milestone coincides
with the attainment date and the standard has been attained. We noted
that this specific statutory exemption from milestone compliance
demonstration submittals for areas that attained by the attainment date
indicates that Congress intended that a finding that an area attained
the standard--the finding made in a determination of attainment by the
attainment date--would serve as a demonstration that RFP requirements
for the area have been met. Therefore, a finding that a Serious or
above area has attained the NAAQS by the attainment date would also
indicate that RFP contingency measures could not be triggered and are
therefore no longer necessary.
The commenter points to the absence of a similar exemption (i.e.,
an exemption from RFP milestone compliance demonstration submittals
when the milestone coincides with the attainment date and the standard
has been attained) for Moderate areas. The commenter appears to be
arguing that this omission indicates that Congress intended to subject
Moderate areas to the requirement for RFP contingency measures, even if
they attained the NAAQS by the attainment date. Contrary to the
commenter's suggestion, however, Congress expressly exempted Moderate
areas from all RFP milestone compliance demonstration submittals.\39\
Accordingly, unlike for Serious and above areas, Congress did not need
to provide a specific exemption for a milestone coinciding with the
attainment date for Moderate areas. The overall statutory exemption
from requirements for RFP milestone compliance demonstration submittals
in Moderate areas supports the EPA's interpretation that RFP
contingency measures in Moderate ozone NAAs can be triggered only by a
finding that the area has failed to attain the standard by the
attainment date.\40\ Therefore, while
[[Page 33576]]
we are disapproving the contingency measure element of the Plan, we are
also determining that Arizona is no longer required to submit a SIP
revision including contingency measures for the Phoenix NAA.
---------------------------------------------------------------------------
\39\ CAA section 182(g)(1) (``6 years after November 15, 1990,
and at intervals of every 3 years thereafter, the State shall
determine whether each nonattainment area (other than an area
classified as Marginal or Moderate)'' has achieved the applicable
milestone).
\40\ As noted in our proposal, ``a determination of attainment
by the attainment date for a Moderate area serves as demonstration
that RFP requirements for the area have been met and that RFP
contingency measures are no longer needed. Thus, the EPA concludes
that RFP contingency measures for Moderate areas are no longer
needed if the area has attained the relevant NAAQS.'' 84 FR 52847.
---------------------------------------------------------------------------
Commenter #2--ADEQ
Comment: ADEQ expressed support for the EPA's proposed action,
including disapproval of the contingency measure requirements, provided
the EPA finalizes its determination that the Phoenix NAA attained the
2008 ozone standard by the attainment date.
Response: The EPA finalized its determination that the Phoenix NAA
attained the 2008 ozone standard by the applicable attainment date on
November 12, 2019.\41\
---------------------------------------------------------------------------
\41\ 84 FR 60920.
---------------------------------------------------------------------------
III. Final Action
No comments were submitted that change our assessment of the
determinations as described in our proposed action. Therefore, for the
reasons discussed in the preceding sections and in our proposed rule,
under CAA section 110(k)(3), the EPA is finalizing approval as a
revision to the Arizona SIP the following portions of the ``MAG 2017
Eight-Hour Ozone Moderate Area Plan for the Maricopa Nonattainment
Area,'' submitted by ADEQ on December 19, 2016:
Base year and periodic emission inventories as meeting the
requirements of CAA sections 172(c)(3), 182(a)(1), and 182(a)(3)(A) and
40 CFR 51.1115(a) and (b);
RACM demonstration and control strategy as meeting the
requirements of CAA section 172(c)(1) and 172(c)(6) and 40 CFR
51.1112(c);
Attainment demonstration as meeting the requirements of
CAA section 182(b)(1)(A)(i) and 40 CFR 51.112 and 51.1108(c);
Rate of progress plan and RFP demonstration as meeting the
requirements of CAA sections 172(c)(2) and 182(b)(1) and 40 CFR
51.1110(a)(3)(i);
Motor vehicle emissions budgets for the 2017 attainment
year because they are consistent with the RFP demonstration and the
attainment demonstration approved herein and meet the other criteria in
40 CFR 93.118(e);
Vehicle I/M provisions as meeting the requirements of 40
CFR part 51, subpart S;
NSR discussion as demonstrating that the requirements of
CAA sections 173 and 182(a)(2)(C) have been met; and
Offset discussion as demonstrating that the requirements
of CAA sections 173 and 182(b)(5) have been met.
The EPA is finalizing disapproval of the contingency measure
element of the MAG 2017 Ozone Plan for failing to meet the requirements
of CAA sections 172(c)(9) and 182(c)(9). However, based on our November
12, 2019 finding of attainment by the applicable attainment date,\42\
we are also finalizing our determination that Arizona is no longer
required to submit a SIP revision addressing the contingency measures
requirement for failure to meet RFP for the Phoenix 2008 ozone NAA.
Therefore, our disapproval does not trigger sanctions or FIP clocks.
---------------------------------------------------------------------------
\42\ Id.
---------------------------------------------------------------------------
Finally, we are finalizing approval of the NSR and offset elements
of the MAG 2014 Ozone Plan as meeting the Marginal area requirements of
CAA section 182(a)(2)(C) and CAA sections 173 and 182(b)(5),
respectively, for the Phoenix 2008 ozone NAA.
IV. Statutory and Executive Order Reviews
Additional information about the following statutes and Executive
orders can be found at 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 was
therefore not submitted to the Office of Management and Budget (OMB)
for review.
B. Executive Order 13711: Reducing Regulations and Controlling
Regulatory Costs
This action is not an Executive Order 13771 regulatory action
because this action is not significant under Executive Order 12866.
C. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the PRA because this action does not impose additional requirements
beyond those imposed by state law.
D. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities beyond those
imposed by state law.
E. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. This action does not impose additional requirements
beyond those imposed by state law. Accordingly, no additional costs to
state, local, or tribal governments, or to the private sector, will
result from this action.
F. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the National Government and the states, or on the distribution of power
and responsibilities among the various levels of government.
G. Executive Order 13175: Coordination With Indian Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175, because the SIP is not approved to apply on any
Indian reservation land or in any other area where the EPA or an Indian
tribe has demonstrated that a tribe has jurisdiction, and will not
impose substantial direct costs on tribal governments or preempt tribal
law. Thus, Executive Order 13175 does not apply to this action.
H. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive order. This action is not subject to
Executive Order 13045 because it does not impose additional
requirements beyond those imposed by state law.
I. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
[[Page 33577]]
J. National Technology Transfer and Advancement Act (NTTAA)
Section 12(d) of the NTTAA directs the EPA to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. The EPA
believes that this action is not subject to the requirements of section
12(d) of the NTTAA because application of those requirements would be
inconsistent with the CAA.
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Population
The EPA lacks the discretionary authority to address environmental
justice in this rulemaking.
L.Congressional Review Act (CRA)
This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
M. Petitions for Judicial Review
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by August 3, 2020. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review nor does
it extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements (see section 307(b)(2)).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 1, 2020.
John Busterud,
Regional Administrator, Region IX.
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart D--Arizona
0
2. Section 52.120 is amended in table 1 in paragraph (e), under the
heading ``Part D Elements and Plans for the Metropolitan Phoenix and
Tucson Areas,'' by adding entries for ``MAG 2017 Eight-Hour Ozone
Moderate Area Plan for the Maricopa Nonattainment Area (December
2016)'' and ``MAG 2014 Eight-Hour Ozone Plan--Submittal of Marginal
Area Requirements for the Maricopa Nonattainment Area (June 2014),
Sections titled ``A Nonattainment Area Preconstruction Permit Program--
CAA section 182(a)(2)(C),'' ``New Source Review--CAA, Title I, Part
D,'' and ``Offset Requirements: 1:1 to 1 (Ratio of Total Emission
Reductions of Volatile Organic Compounds to Total Increased
Emissions)--CAA Section 182(a)(4)'' on pages 8 and 9'' after the entry
for ``Reasonably Available Control Technology (RACT) Analysis, Negative
Declaration and Rules Adoption'' to read as follows:
Sec. 52.120 Identification of plan.
* * * * *
(e) * * *
Table 1--EPA-Approved Non-Regulatory and Quasi-Regulatory Measures
[Excluding certain resolutions and statutes, which are listed in tables 2 and 3, respectively] \1\
----------------------------------------------------------------------------------------------------------------
Applicable
geographic or
Name of SIP provision nonattainment State submittal date EPA approval date Explanation
area or title/
subject
----------------------------------------------------------------------------------------------------------------
The State of Arizona Air Pollution Control Implementation Plan
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Part D Elements and Plans for the Metropolitan Phoenix and Tucson Areas
----------------------------------------------------------------------------------------------------------------
* * * * * * *
MAG 2017 Eight-Hour Ozone Phoenix-Mesa 2008 December 19, 2016..... [Insert Federal Adopted by the
Moderate Area Plan for the 8-hour ozone Register Arizona
Maricopa Nonattainment Area nonattainment Citation], June Department of
(December 2016). area. 2, 2020. Environmental
Quality on
December 13,
2016.
MAG 2014 Eight-Hour Ozone Plan-- Phoenix-Mesa 2008 July 2, 2014.......... [Insert Federal Other provisions
Submittal of Marginal Area 8-hour ozone Register of the MAG 2014
Requirements for the Maricopa nonattainment Citation], June Eight-Hour Ozone
Nonattainment Area (June area. 2, 2020. Plan--Submittal
2014), Sections titled ``A of Marginal Area
Nonattainment Area Requirements for
Preconstruction Permit the Maricopa
Program--CAA section Nonattainment
182(a)(2)(C),'' ``New Source Area (June 2014)
Review--CAA, Title I, Part were approved on
D,'' and ``Offset October 16,
Requirements: 1:1 to 1 (Ratio 2015.
of Total Emission Reductions
of Volatile Organic Compounds
to Total Increased Emissions)--
CAA Section 182(a)(4)'' on
pages 8 and 9.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ Table 1 is divided into three parts: Clean Air Act Section 110(a)(2) State Implementation Plan Elements
(excluding Part D Elements and Plans), Part D Elements and Plans (other than for the Metropolitan Phoenix or
Tucson Areas), and Part D Elements and Plans for the Metropolitan Phoenix and Tucson Areas.
* * * * *
[FR Doc. 2020-09732 Filed 6-1-20; 8:45 am]
BILLING CODE 6560-50-P
