2022-17189. Maintenance Plan and Redesignation Request; Nogales PM2.5

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is taking final action to approve the “FINAL SIP Revision: Nogales PM_2.5 Maintenance Plan and Redesignation Request (2006 Fine Particulate NAAQS)” (“Nogales Maintenance Plan” or “Plan”) as a revision to the state implementation plan (SIP) for the State of Arizona. The Nogales Maintenance Plan includes, among other elements, an emissions inventory consistent with attainment, a maintenance demonstration, contingency provisions, and a motor vehicle emissions budget for the ten-year maintenance period. The EPA is also approving the State of Arizona's request to redesignate the Nogales planning area (“Nogales area”) from nonattainment to attainment for the 2006 24-hour national ambient air quality standards (NAAQS) for particulate matter of 2.5 micrometers or less (PM_2.5). The EPA is finalizing these actions because this SIP revision meets the applicable Clean Air Act (CAA or “Act”) requirements for maintenance plans and because the State has met the requirements under the Act for redesignation of a nonattainment area to attainment with respect to the Nogales area.

DATES:

This rule is effective September 14, 2022.

ADDRESSES:

The EPA has established a docket for this action under Docket ID No. EPA-EPA-R09-OAR-2021-0869. All documents in the docket are listed on the https://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available through https://www.regulations.gov, or please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional availability information.

FOR FURTHER INFORMATION CONTACT:

Lindsay Wickersham, Air Planning Office (AIR-2), EPA Region IX, 75 Hawthorne Street, San Francisco, CA 94105, 415-947-4192, or by email at [e-mail].

SUPPLEMENTARY INFORMATION:

Throughout this document, “we,” “us,” and “our” refer to the EPA.

Table of Contents

I. Summary of the EPA's Proposed Action

II. Public Comments

III. Environmental Justice Considerations

IV. Final Action

V. Statutory and Executive Order Reviews

I. Summary of the EPA's Proposed Action

On March 2, 2022, under CAA section 110(k)(3), the EPA proposed to approve the Nogales Maintenance Plan submitted by the Arizona Department of Environmental Quality (ADEQ) on April 13, 2021, as a revision to the Arizona SIP.^[1] In so doing, we proposed to find that the Nogales Maintenance Plan adequately demonstrates that the area will maintain the 2006 PM_2.5 NAAQS for 10 years beyond redesignation and includes sufficient contingency provisions to promptly correct any violation of the PM_2.5 NAAQS that occurs after redesignation, and thereby meets the requirements for maintenance plans under CAA section 175A. We also proposed to find the Nogales area motor vehicle emissions budgets (“budgets”) for PM_2.5 and nitrogen oxides (NO_X) for 2032 adequate and approve the budgets for transportation conformity purposes. The motor vehicle emissions budgets that the EPA proposed to find adequate and approve are winter daily budgets of 637.0 tons per day (tpd) PM_2.5 and 513.0 tpd NO_X and annual budgets of 116.2 tons per year (tpy) PM_2.5 and 93.7 tpy NO_X .^[2]

In our proposed rule, under CAA section 107(d)(3)(D), we also proposed to grant ADEQ's request to redesignate the Nogales area from “nonattainment” to “attainment” for the 2006 PM_2.5 NAAQS. We proposed to do so based on our conclusion that the Nogales area has attained the 2006 PM_2.5 NAAQS based on the following: the most recent three-year period (2018-2020) of quality-assured, certified, and complete PM_2.5 data; ^[3] the relevant portions of the Arizona SIP are, or will be as part of this action, fully approved; the improvement in air quality is due to permanent and enforceable emissions reductions; Arizona has met all requirements applicable to the Nogales area with respect to section 110 and part D of the CAA if we finalize our approval of the attainment inventory in the Nogales Maintenance Plan; based on our proposed approval as described above, the Nogales Maintenance Plan meets the requirements for maintenance plans under section 175A of the CAA and therefore, Arizona has met the criteria for redesignation under CAA section 107(d)(3)(E) for the Nogales PM_2.5 area.

Please see our proposed rule for a detailed discussion of the background for this action, our procedural and substantive review of the Nogales Maintenance Plan and associated budgets, and the rationale for our proposed approval of the Nogales Maintenance Plan and for granting ADEQ's request for redesignation of the Nogales area to attainment.

II. Public Comments

Our March 2, 2022 proposed rule provided a 30-day public comment period that closed on April 1, 2022. During this comment period we received no comments on our proposal.

III. Environmental Justice Considerations

As discussed in the proposed rule, to identify environmental burdens and susceptible populations in underserved communities in the Nogales area, we performed a screening-level analysis using the EPA's environmental justice (EJ) screening and mapping tool (“EJSCREEN”). Our screening-level analysis included multiple environmental and demographic indicators, including the EJSCREEN “Demographic Index,” which is the average of an area's percentage of minority and low-income populations. The Demographic Index for the Nogales area is at the 95th percentile, compared to the United States as a whole.^[4]

When the EPA establishes a new or revised NAAQS, the CAA requires the EPA to designate all areas of the U.S. as either nonattainment, attainment, or unclassifiable. If an area is designated nonattainment of the NAAQS, the CAA provides for the EPA to redesignate the area to attainment upon a demonstration by the state authority that the criteria for a redesignation are met, including a showing that the area is currently attaining the NAAQS and will maintain the NAAQS for 10 years beyond redesignation in order to ensure that all those residing, working, attending school, or otherwise present in those areas are protected. This action addresses a plan for continued attainment of the 2006 PM_2.5 NAAQS for the Nogales area. Approval of this plan does not impose any additional regulatory requirements on sources beyond those imposed by state law. As discussed in this document, Arizona has demonstrated that the Nogales area is attaining the 2006 PM_2.5 NAAQS and the Nogales Maintenance Plan provides for the maintenance of the NAAQS for 10 years beyond redesignation. For these reasons, this action will not result in disproportionately adverse human health or environmental effects on communities with environmental justice concerns.

IV. Final Action

Under CAA section 110(k)(3), and for the reasons set forth in our March 2, 2022 proposed rule, the EPA is taking final action to approve the Nogales Maintenance Plan as a revision to the Arizona SIP. The EPA finds that the maintenance demonstration showing the area will continue to attain the 2006 PM_2.5 NAAQS for 10 years beyond redesignation, and the contingency provisions describing the actions that ADEQ will take in the event of a future monitored violation, meet all applicable requirements for maintenance plans and related contingency provisions in CAA section 175A. The EPA is also finding the 2032 annual motor vehicle emission budgets of 116.2 tpy PM_2.5 and 93.7 tpy NO_X adequate and approving these budgets for transportation conformity purposes because we find they meet all applicable criteria for such budgets including the adequacy criteria under 40 CFR 93.118(e).^[5]

Under CAA section 107(d)(3)(D), we are also taking final action to grant ADEQ's request, which accompanied the submittal of the Nogales Maintenance Plan, to redesignate the Nogales area to attainment for the 24-hour PM_2.5 NAAQS. We are doing so based on our conclusion that the area has met the five criteria for redesignation under CAA section 107(d)(3)(E). Our conclusion in this regard is in turn based on our determination of the following: the area has attained the 24-hour PM_2.5 NAAQS; relevant portions of the Arizona SIP are, or will be as part of this action, fully approved; the improvement in air quality is due to permanent and enforceable reductions in emissions; Arizona has met all requirements applicable to the Nogales area with respect to section 110 and part D of the CAA upon final approval of the attainment inventory in the Nogales Maintenance Plan; and our approval (as part of this action) of the Nogales Maintenance Plan.

V. Statutory and Executive Order Reviews

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves State law as meeting federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Will not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994), as discussed in Section IV of this proposal.

In addition, there are no areas of Indian country within the Nogales area, and the state plan for which the EPA is finalizing approval does not 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. In those areas of Indian country, this final action does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because redesignation is an action that affects the status of a geographical area and does not impose any new regulatory requirements on tribes, impact any existing sources of air pollution on tribal lands, nor impair the maintenance of NAAQS in tribal lands.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 14, 2022. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects

40 CFR Part 52

• Environmental protection
• Air pollution control
• Ammonia
• Incorporation by reference
• Intergovernmental relations
• Nitrogen dioxide
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides
• Volatile organic compounds

40 CFR Part 81

• Environmental protection
• Air pollution control
• National parks
• Wilderness areas

Dated: August 4, 2022.

Martha Guzman Aceves,

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

1. The authority citation for part 52 continues to read as follows:

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

Subpart D—Arizona

2. In § 52.120, in paragraph (e), table 1 is amended, under the table heading “Part D Elements and Plans (Other than for the Metropolitan Phoenix or Tucson Areas),” by adding an entry for “FINAL SIP Revision: Nogales PM _2.5 Redesignation Request and Maintenance Plan (April 13, 2021)” after the entry for “Arizona State Implementation Plan Revision for the Nogales PM_2.5 Nonattainment Area (September 2013), including appendices A and B” to read as follows.

§ 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

Name of SIP provision	Applicable geographic or nonattainment area or title/subject	State submittal date	EPA approval date	Explanation
*         *         *         *         *         *         *
Part D Elements and Plans (Other than for the Metropolitan Phoenix or Tucson Areas)
*         *         *         *         *         *         *
FINAL SIP Revision: Nogales PM2.5 Maintenance Plan and Redesignation Request (2006 Fine Particulate NAAQS)	Nogales PM2.5. Air Quality Planning Area	April 13, 2021	August 15, 2022, [Insert Federal Register citation]	Adopted by the Arizona Department of Environmental Quality and submitted to the EPA as an attachment to letter dated April 7, 2021.
*         *         *         *         *         *         *
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.

* * * * *

PART 81—DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES

3. The authority citation for part 81 continues to read as follows:

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

Subpart C—Section 107 Attainment Status Designations

4. Section 81.303 is amended by revising the table “Arizona—2006 24-Hour PM _2.5 NAAQS,” the entry under Nogales: Santa Cruz County (part) for “Nogales planning area” to read as follows:

§ 81.303

Arizona.

* * * * *

Arizona—2006 24-Hour PM _2.5 NAAQS

[Primary and Secondary]

Designated area	Designation a		Classification
	Date 1	Type	Date 2	Type
Nogales:
Santa Cruz County (part) Nogales Planning area bound as follows: The portions of the following Townships which are within the State of Arizona and lie east of 111 longitude: T23S, R13E, T23S, R14E; T24S, R14E, T24S, R14E	September 14, 2022	Attainment.
*         *         *         *         *         *         *
a  Includes Indian Country located in each county or area, except as otherwise specified.
1  This date is 30 days after November 13, 2009, unless otherwise noted.
2  This date is July 2, 2014, unless otherwise noted

* * * * *

Footnotes

1.  87 FR 11664. See also letter dated April 7, 2021, from Daniel Czecholinski, Director, Air Quality Division, Arizona Department of Environmental Quality, to Deborah Jordan, Acting Regional Administrator, EPA Region IX. Subsequently, Arizona made an electronic submittal of the Nogales Maintenance Plan on April 13, 2021, via the EPA's State Plan Electronic Collection System.

2.  Consultation with the Arizona Department of Transportation and ADEQ indicate that the State prefers EPA action on only the annual budgets.

3.  The Nogales 24-hour design value for 2021 remained in attainment at 29 micrograms per cubic meter; EPA, 2021 AQS Design Value Report (AMP480) dated June 7, 2022; also available at EPA, PM_2.5 Design Values, 2021, https://www.epa.gov/​air-trends/​air-quality-design-values.

4.  Nogales 2006 PM fine Nonattainment Area EJSCREEN Results, dated January 18, 2022.

5.  The EPA also proposed to find adequate and approve winter daily budgets of 637.0 tpd PM_2.5 and 513.0 tpd NO_X . Following consultation with the Arizona Department of Transportation and ADEQ, we are just finalizing approval of the annual budgets, consistent with the form of the approved budgets for particulate matter with an aerodynamic diameter of less than or equal to a nominal ten micrometers (PM₁₀) in the Nogales area. See 77 FR 58962, 58964, Table 1.