[Federal Register Volume 87, Number 95 (Tuesday, May 17, 2022)]
[Rules and Regulations]
[Pages 29830-29837]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-10060]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2021-0249; FRL-8724-02-R9]
Rescission of Clean Data Determination and Call for Attainment
Plan Revision for the Yuma, AZ 1987 PM10 Moderate Nonattainment Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to rescind its previously issued clean data determination (CDD)
for the Yuma, Arizona ``Moderate'' nonattainment area (Yuma NAA) for
the 1987 24-hour national ambient air quality standard (NAAQS) for
particulate matter with an aerodynamic diameter less than or equal to a
nominal 10 micrometers (PM10) because recent complete,
quality-assured monitoring data show that the area has subsequently
violated this NAAQS. We are also determining that the Arizona State
Implementation Plan (SIP) is substantially inadequate to attain or
maintain the PM10 standard in the Yuma NAA and calling for
Arizona to revise the SIP to address this inadequacy.
DATES: This rule is effective June 16, 2022.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R09-OAR-2021-0249. All documents in the docket are
listed on the https://www.regulations.gov website. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available through https://www.regulations.gov, or please
contact the person identified in the FOR FURTHER INFORMATION CONTACT
section for additional availability information. If you need assistance
in a language other than English or if you are a person with
disabilities who needs a reasonable accommodation at no cost to you,
please contact the person identified in the FOR FURTHER INFORMATION
CONTACT section.
FOR FURTHER INFORMATION CONTACT: John J. Kelly, Air Planning Office
(AIR-2), EPA Region IX, (415) 947-4151, [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' refer to the EPA.
Table of Contents
I. Proposed Action and Re-Opening of Comment Period
II. Public Comments and EPA Responses
III. Environmental Justice Assessment
IV. Final Action
V. Statutory and Executive Order Reviews
I. Proposed Action and Re-Opening of Comment Period
On June 1, 2021, the EPA proposed to rescind our previously issued
CDD for the Yuma NAA because recent complete, quality-assured
monitoring data show that the area has
[[Page 29831]]
subsequently violated the PM10 NAAQS.\1\ We also proposed to
find that the Arizona SIP is substantially inadequate to attain or
maintain the PM10 standard and to issue a SIP call requiring
Arizona to revise its existing SIP to address this inadequacy. In order
to cure this deficiency, we proposed to require Arizona to submit a
Moderate nonattainment plan SIP submission meeting applicable
requirements for such a SIP submission within 18 months of finalizing
the SIP call. We also proposed to set a new attainment date of no later
than December 31, 2025, for the 1987 24-hour PM10 NAAQS in
this area because the original maximum statutory attainment date for
this area under Clean Air Act (CAA or ``Act'') section 188(c)(1) was
December 31, 1994 (approximately four years from the original
designation).\2\ Finally, we proposed to reverse our previous finding
that the motor vehicle emissions budgets in the Yuma PM10
Maintenance Plan were adequate for transportation conformity purposes
pursuant to 40 CFR 93.118(f)(1)(vi). Please refer to our proposed rule
for background information and additional explanation of the proposed
actions.
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\1\ 86 FR 29219.
\2\ 86 FR 29221.
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The initial public comment period for the proposed rule started on
June 1, 2021 and ended on July 1, 2021. Due to an inadvertent
administrative oversight, the EPA did not post all the documents
contained in the docket until June 23, 2021. On October 19, 2021, the
EPA re-opened the comment period for the proposed rule for an
additional 30 days, to allow for a full comment period with access to
all docket materials.\3\ In response to a comment from the Arizona
Department of Environmental Quality (ADEQ), we also sought public
comment on whether we should set a maximum attainment date of December
31, 2027 (roughly six years from the expected SIP call effective date),
rather than December 31, 2025 (roughly four years from the expected SIP
call effective date), for the Yuma NAA, if we were to finalize our
proposed finding of inadequacy and SIP call.
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\3\ 86 FR 57769.
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In addition to the two public comment periods described in the
above paragraphs, the EPA also held a comment period that was announced
on our Office of Transportation and Air Quality (OTAQ) website.\4\ The
purpose of this comment period was to invite public comment on our
proposed reversal of our previous finding that the motor vehicle
emissions budgets in the Yuma PM10 Maintenance Plan were
adequate for transportation conformity purposes pursuant to 40 CFR
93.118(f)(1)(vi). We posted our announcement of the public comment
period on the OTAQ website on June 4, 2021, and requested comments be
submitted by July 6, 2021. We also met with the Yuma Interagency Work
Group on June 22, 2022, to inform them of this proposal.\5\
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\4\ https://www.epa.gov/state-and-local-transportation/adequacy-review-state-implementation-plan-sip-submissions-conformity.
\5\ Memorandum dated January 27, 2022, from John Kelly, EPA
Region IX, Air and Radiation Division, to Docket ID No. EPA-R09-OAR-
2021-0249.
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Finally, on October 21, 2021, EPA Region IX staff met with
representatives of the Arizona Farm Bureau to discuss issues affecting
the agricultural sector, including in the Yuma NAA.\6\
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\6\ Memorandum dated December 1, 2021, from Cara Gillen,
Agriculture Advisor, EPA Region IX, Air and Radiation Division, to
Docket ID No. EPA-R09-OAR-2021-0249.
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II. Public Comments and EPA Responses
We did not receive any comments during the comment period announced
on our OTAQ website. During the two comment periods the EPA announced
in the Federal Register, we received a total of 13 comment letters from
the following parties: ADEQ, the Arizona Farm Bureau Federation, the
Seed Trade Association of Arizona, the Wellton-Mohawk Natural Resource
Conservation District, the Yuma County Department of Development
Services, the Yuma County Farm Bureau, the Yuma Fresh Vegetable
Association, the Yuma Natural Resource Conservation District, and the
Laguna Natural Resource Conservation District. We summarize and respond
to these comments below.
In addition, on October 5, 2021, Senators Kyrsten Sinema and Mark
Kelly sent a letter to EPA Administrator Michael Regan regarding the
proposed rule. The EPA's Acting Assistant Administrator for Air, Joe
Goffman, responded to this letter on November 17, 2021. We have
included the Senators' letter and the EPA's responses in the docket for
this action.
Comment 1: Several commenters expressed opposition to the proposed
CDD rescission and SIP call, arguing that the EPA and ADEQ should
instead evaluate whether recent exceedances in the Yuma NAA qualify for
exclusion under the EPA's Exceptional Events Rule (EER). The commenters
noted that exceedances of the PM10 NAAQS in the Yuma NAA are
generally due to high wind events that could qualify as exceptional
events (EEs). Some of the commenters also asserted that the EPA should
develop and approve a new EER. Two commenters added that the CAA does
not mandate that a SIP revision be developed prior to submission of an
EE demonstration.
Two commenters quoted 40 CFR part 50 appendix K, section 2.4(a),
which defines an EE as an uncontrollable event caused by natural
sources of particulate matter or an event that is not expected to recur
at a given location and allows for the use of more than three years of
representative data in calculating a PM10 design value in
order to reduce the effect of such events.
In addition, several commenters stated that, after many years of
stakeholder meetings and studies by ADEQ and independent contractors,
the sources of PM10 dust in the Yuma NAA are well
documented. They expressed opposition to any ``reset'' of this previous
work. Commenters also pointed to controls that have already been
implemented for specific sources of PM10 in the Yuma NAA.
Response 1: We agree with commenters that exceedances of the 1987
24-hour PM10 NAAQS in the Yuma NAA are often associated with
high wind that could potentially qualify for treatment as natural
events under the EPA's EER. In order to qualify for such treatment, all
the applicable criteria under the EER must be met, including a
demonstration that reasonable control measures were applied at the time
of the event.\7\ Specifically, for a high wind dust event to qualify as
a natural event, the state must show that the windblown dust is
entirely from natural undisturbed lands in the area or that all
anthropogenic sources are reasonably controlled.\8\ We are not aware of
any evidence to suggest that windblown dust in the Yuma NAA is entirely
from natural undisturbed lands. Therefore, in order to meet this
requirement, the state must provide evidence of the effective
implementation and enforcement of SIP-approved or other enforceable
controls on the anthropogenic sources within the state's jurisdictional
boundaries that cause or contribute to the monitored exceedance or
violation.\9\
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\7\ 40 CFR 50.14(b)(8)(iii).
\8\ 40 CFR 50.14(b)(5)(ii).
\9\ 40 CFR 50.14(b)(8)(vii) and (viii)(A)-(C).
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In a number of formal and informal communications over the last
several years, the EPA has indicated to ADEQ that we believe the
current controls on anthropogenic sources that contribute to the
exceedances and are within the state's jurisdiction do not fully meet
the requirements for enforceable, reasonable controls under the EER. In
2015, based on identified deficiencies in existing
[[Page 29832]]
controls for paved roads, we recommended that ``ADEQ re-direct its
efforts away from attempts to demonstrate past exceedances as
exceptional events and towards developing a PM10 State
Implementation Plan pursuant to CAA Sec. Sec. 110, 182 and 189.'' \10\
However, due to the suspension of attainment-related requirements under
the CDD, ADEQ was not required to develop such a plan. In the absence
of such a requirement, ADEQ and the EPA have instead worked with
stakeholders in the Yuma NAA for several years on the development of a
``prospective assessment'' of reasonable controls for the Yuma NAA.\11\
As noted by commenters, through this process ADEQ and stakeholders have
made significant progress in understanding the sources that contribute
to exceedances of the PM10 NAAQS in the Yuma NAA.
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\10\ Letter dated November 19, 2015, from Elizabeth Adams,
Acting Director, Air Division, EPA Region IX, to Eric Massey, Air
Quality Division Director, ADEQ, 3.
\11\ See, e.g., email dated October 26, 2019, from Meredith
Kurpius, EPA, to Tim Franquist, ADEQ, subject: ``Yuma
PM10 EE process.''
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In 2020, ADEQ submitted a draft outline of a prospective assessment
of controls on specific source sectors in the Yuma NAA. The EPA
provided feedback on this draft, noting that it did not include any
proposed new requirements to implement ``reasonable controls'' on
several significant source categories in the area.\12\ We explained
that, under the EER, the EPA would not be able to concur on
PM10 exceptional events demonstrations in the Yuma NAA
without the necessary enforceable and reasonable controls for all
significant anthropogenic sources under the State's jurisdiction.\13\
Therefore, we indicated that it would be necessary for ADEQ to develop
new or revised rules for these source categories before the EPA would
be able to concur on exceptional events demonstrations for the Yuma NAA
and ultimately redesignate the area to attainment.\14\ Following these
communications, ADEQ, the EPA, and stakeholders have continued to work
on the development of new and revised rules for the affected source
categories.
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\12\ Letter dated September 10, 2020, from Elizabeth Adams,
Director, Air and Radiation Division, EPA Region IX, to Misael
Cabrera, Director, ADEQ.
\13\ Id.
\14\ Id.
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However, to date, no governmental entity has adopted any new
enforceable requirement to implement controls on any PM10
sources in the Yuma NAA. While we appreciate the efforts of various
parties to voluntarily implement control measures, such as street
sweeping and agricultural dust controls, the implementation of such
voluntary measures does not meet the CAA and EER requirements for
enforceable control measures. In the absence of enforceable, reasonable
controls measures for all significant anthropogenic sources under the
State's jurisdiction, high wind events in the Yuma NAA would not
qualify for treatment as EEs under the EER.
We recognize the commenters' frustration regarding the lack of
progress toward redesignation of the Yuma NAA to attainment of the
PM10 NAAQS. However, we do not agree with the suggestion
that rescission of the CDD and issuance of a SIP call constitutes a
``reset'' of the current process. On the contrary, by establishing firm
deadlines by which enforceable control measures must be submitted to
the EPA and implemented by the relevant sources, we believe this action
may serve to expedite implementation of enforceable, reasonable
controls, which is a prerequisite to the EPA's concurrence on EE
demonstrations. We also note that the EPA is not permitted to approve a
redesignation to attainment unless the EPA determines that
``improvement in air quality is due to permanent and enforceable
reductions in emissions,'' and that a plan demonstrating the area will
continue to maintain the NAAQS is in place, among other
requirements.\15\
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\15\ CAA section 107(d)(3)(E).
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With respect to the suggestion that the EPA develop a new EER, we
note that the EER was last revised in 2016 and the EPA has concurred on
EE demonstrations submitted by many states, including Arizona, under
the provisions of the revised EER. The commenters did not indicate
which aspect of the EER they believe should be revised, or why they
believe the rule's current provisions are problematic. Regardless, any
potential revision to the EER is outside the scope of this current
rulemaking.
If, by a ``new EER,'' commenters are referring to submittal of new
EE demonstrations by ADEQ, we do not expect that we would be able to
concur upon such demonstrations at this time due to the lack of
enforceable, reasonable controls, as described in the preceding
paragraphs. Furthermore, while we agree that the CAA does not require
that a state develop a SIP submission before an EE demonstration, the
EPA cannot concur on such a demonstration under the EER unless
enforceable, reasonable controls are in place at the time of the event.
Under the EER, the EPA considers enforceable control measures
implemented in accordance with a SIP to be reasonable controls, if they
were approved within five years of the event and address all sources
necessary to fulfill the applicable CAA requirements for the SIP.\16\
Therefore, a SIP submission including control measures to address the
anthropogenic sources contributing to the monitored exceedance would
help to ensure that the EER provisions were met for any future EE
demonstrations for the relevant monitor and NAAQS.
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\16\ 40 CFR 50.14(b)(8)(v).
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Finally, we note that 40 CFR part 50 appendix K section 2.4(a) was
promulgated in 1987 as part of the original implementing regulations
for the 1987 PM10 NAAQS.\17\ It has not been revised since
Congress amended the CAA to address EEs in CAA section 319 in 2005,\18\
or since the EER was promulgated in 2007 \19\ and revised in 2016.\20\
The EER includes a more detailed definition of an EE than the
definition cited by the commenters. The EER definition specifies, among
other things, that an EE must be ``not reasonably controllable or
preventable'' and must ``be determined by the Administrator in
accordance with 40 CFR 50.14 to be an exceptional event.'' \21\ As
described in the preceding paragraphs, we expect that we would not be
able to concur on an EE demonstration for the Yuma NAA under 40 CFR
50.14 at this time due to a lack of enforceable, reasonable controls on
sources within the State's jurisdiction.
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\17\ 52 FR 24634, 24667 (July 1, 1987).
\18\ Public Law 109-59, title VI, Sec. 6013(a), August 10,
2005, 119 Stat. 1882 (codified in CAA section 319(b)).
\19\ 72 FR 13560 (March 22, 2007).
\20\ 81 FR 68216.
\21\ 40 CFR 50.1(j).
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Furthermore, as noted in our proposal, the Yuma NAA has had a
violating design value for the 1987 24-hour PM10 NAAQS every
year since 2006.\22\ Therefore, even if we were to consider more than
three years of representative data pursuant to 40 CFR part 50 appendix
K section 2.4(a), the Yuma NAA would still be violating the
PM10 NAAQS.
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\22\ 86 FR 29221 (citing EPA, Air Quality System (AQS) ``Design
Value Report,'' dated March 3, 2021.)
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Comment 2: A few commenters noted that much of the land in the Yuma
NAA is owned by the federal government, the state government, or local
tribes. They indicated that ADEQ cannot control sources of dust on
these lands. Commenters also stated that uncontrolled dust enters the
Yuma NAA from Mexico and Imperial County,
[[Page 29833]]
California, which are outside of ADEQ's jurisdiction.
Response 2: We agree with the commenters' assertion that ADEQ does
not have authority to regulate PM10 emissions in Mexico or
California, on any Indian reservation land, or in any other area where
a tribe has jurisdiction. Under the EER, the State is not required to
demonstrate that reasonable controls were in place for emissions-
generating activity outside of the State's jurisdictional
boundaries.\23\ The CAA and the EPA's Tribal Authority Rule also
contain provisions addressing emissions from sources on tribal land and
other states and countries in relation to SIPs. This action will not
affect or alter ADEQ's authorities or obligations with respect to such
emissions outside of its jurisdiction.
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\23\ 40 CFR 50.14(b)(8)(vii).
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We do not agree with the commenters' assertion that ADEQ lacks
authority to regulate sources of emissions on state or federal
government land. Under Arizona State law, rules adopted by ADEQ apply
throughout the State.\24\ Furthermore, under CAA section 118, federal
agencies must comply with all federal, state, interstate, and local
requirements concerning air pollution control, unless expressly
exempted by the President.\25\ Therefore, in the absence of a specific
exemption, or an explicit preemption, air pollution control rules
adopted by ADEQ apply to both governmental and nongovernmental
entities.
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\24\ ARS 49-106. Statewide application of rules.
\25\ 42 U.S.C. 7418(a) and (b).
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Comment 3: One commenter expressed concern that data collected at
the Yuma NAA monitoring station are not representative of ambient
PM10 concentrations in the Yuma NAA. The commenter pointed
to differences in reported concentrations between the current and
previous locations of the monitoring station and to localized dusty
conditions near the current monitoring site.
Response 3: The commenter appears to be referring to the Yuma
Supersite, which is the site of the only regulatory PM10
monitor in the Yuma NAA. ADEQ's annual monitoring network plans provide
information about the location and characteristics of this monitor.\26\
As noted in our proposal, the EPA found that the 2018-2020 annual
network plans (ANPs) submitted by ADEQ met the relevant PM10
requirements under 40 CFR part 58.\27\ We have also approved ADEQ's
2021 ANP with respect to these requirements.\28\ These ANPs document
that the monitoring objective of the Yuma Supersite PM10
monitor is NAAQS comparison and its site type is population-oriented,
\29\ meaning that it is located to measure typical concentrations in
areas of high population density.\30\ Consistent with this objective
and site type, the monitor is sited at the neighborhood scale,\31\
meaning that it represents particulate matter concentrations, as well
as land use and land surface characteristics, within an area of
approximately a few kilometers.\32\ ADEQ's selection of this monitoring
site, and the EPA's approval of the ANPs including this site, document
that the monitor is properly sited and the data is representative of
ambient PM10 levels in this area.
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\26\ See, e.g., ADEQ 2020 Annual Network Plan, Appendix C, 15.
\27\ 86 FR 29220.
\28\ Letter dated October 29, 2021, from Gwen Yoshimura, Section
Chief, Air Quality Analysis Office, EPA Region 9, to Daniel
Czecholinski, Director, Air Quality Division, ADEQ.
\29\ See, e.g., ADEQ 2020 Annual Network Plan, Appendix C, 15.
\30\ 40 CFR part 58, Appendix D, section 1.1.1(b).
\31\ See, e.g., ADEQ 2020 Annual Network Plan, Appendix C, 15.
\32\ 40 CFR part 58, Appendix D, section 4.6(b)(3).
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The fact that the current monitor may record higher concentrations
of PM10 than the previous monitor, which was located on the
roof of the Yuma Courthouse,\33\ does not suggest that the monitor is
improperly sited, given its monitoring objective, site type, and scale
of representativeness. We also note that, even before the State
relocated the PM10 monitor to the Yuma Supersite, the Yuma
NAA had a violating design value every year between 2006 and 2010,
based on monitoring data from the Courthouse monitor.\34\ Therefore, we
do not agree with the commenter's suggestion that data from the Yuma
Supersite may be unrepresentative of ambient PM10
concentrations in the Yuma NAA.
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\33\ See, e.g., ADEQ 2009 Annual Network Plan, 122.
\34\ EPA, AQS ``Design Value Report,'' dated March 26, 2021.
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Comment 4: One commenter asserted that, in proposing to rescind the
CDD and issue a SIP call, the EPA failed to consider the cost and
effectiveness of additional regulation that this action will impose on
the local economy. The commenter also stated that it supports
affordable effective measures that significantly reduce
PM10, but not ``measures put in place for regulatory
purposes only; measures that are not effective, cannot be proven to
work or only address an insignificant portion of PM10.''
Response 4: We disagree with the commenter that the EPA should
consider costs prior to finalizing this action. The EPA interprets the
CAA's nonattainment planning requirements as permitting the Agency to
issue a CDD, which suspend a state's requirement to submit certain
attainment planning requirements for as long as an area is attaining
the NAAQS. In this case, the area is factually no longer attaining the
NAAQS, and it is therefore not reasonable to interpret the Act as
permitting the suspension of mandatory nonattainment area plan
requirements applicable to the State to provide for the attainment of
the PM10 NAAQS in this area. We therefore do not agree with
the commenter that the EPA may consider cost or effectiveness of
regulation in rescinding the CDD, where the area is no longer attaining
the NAAQS.
Further, the rescission of the CDD and issuance of a SIP call does
not in and of itself impose any new costs or establish any new control
measures. ADEQ will determine how to revise its SIP to meet Moderate
area nonattainment plan requirements in response to the SIP call. The
applicable requirements for a Moderate PM10 NAA include
implementation of reasonably available control measures (RACM) and
reasonably available control technology (RACT) for sources of
PM10 and any necessary PM10 precursors.\35\ The
EPA interprets the PM10 RACM requirement to allow states to
exclude de minimis source categories, and to consider both
technological feasibility and the cost of control in determining which
control measures are reasonably available, subject to the overarching
requirement to provide for attainment of the NAAQS in the area.\36\
Therefore it would be inappropriate and premature for the EPA to
analyze the potential costs of controls prior to ADEQ's development of
a SIP submission.
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\35\ CAA sections 172(c)(1) and 189(a)(1)(C).
\36\ See, e.g., General Preamble, 57 FR 13498, 13540-13541
(April 16, 1992).
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Comment 5: One commenter asserted that if the monitoring station
measurements continue to increase due to naturally occurring
PM10 or unrepresentative, localized dusty conditions near
the station, there is the potential for ever-changing controls such as
contingency measures, findings of SIP inadequacy, or changes in
designation.
Response 5: Please refer to Response 3 concerning the
representativeness of the Yuma Supersite PM10 monitor. With
respect to potential increases in ``naturally occurring''
PM10, as discussed in Response 1, for a high wind dust event
to qualify as a natural event, the State must show that the windblown
dust is entirely from natural
[[Page 29834]]
undisturbed lands in the area or that all anthropogenic sources are
reasonably controlled.
Concerning contingency measures, we note that such measures are a
required element of a Moderate area nonattainment plan that the State
must submit.\37\ However, such contingency measures would only be
triggered if the EPA finds that the area failed to make reasonable
further progress or to attain the NAAQS by the new attainment date.
Prior to making a finding of failure to attain, we would consider any
EE demonstrations submitted by ADEQ under the criteria set forth in the
EER. If the State has met the criteria for exceptional events,
including the requirement for reasonable controls on anthropogenic
sources, then the EPA would be able to concur upon the demonstrations
and exclude the relevant data.
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\37\ CAA section 172(c)(9).
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With respect to a finding of SIP substantial inadequacy, we are
determining that the Arizona SIP is substantially inadequate to attain
the PM10 NAAQS in the Yuma NAA. This determination is based
on 15 years of monitoring data showing violations of the
PM10 NAAQS, rather than any short-term or temporary increase
in PM10 concentrations. To the extent that there could be a
future finding of substantial inadequacy in the Arizona SIP, that would
be for the EPA to determine based on its assessment of the relevant
facts at such time, not in this action. Section 110(k)(5) explicitly
provides that the EPA may elect to issue a SIP call ``whenever'' it
determines that a state's existing SIP has substantial inadequacy.
Regarding the commenter's concerns about the Yuma NAA designation
changing, the Yuma NAA is already designated nonattainment. That
designation is not changing in this action. Any future change in
designation for this area for purposes of the 1987 PM10
NAAQS would be a redesignation from nonattainment to attainment. In
order to redesignate the area to attainment, the EPA would have to
determine, among other things, that the area had attained the
PM10 NAAQS due to reductions in emissions resulting from
permanent and enforceable control measures.\38\ To the extent that the
commenter is concerned about the potential for changes in designation
in general, this is a feature of the CAA. Pursuant to section 107(d)(3)
either the State or the EPA can initiate a change in designation
through the proper process when the facts justify such a change.
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\38\ CAA section 107(d)(3)(E)(iii).
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Finally, if by ``designation'' the commenter intended to say
``classification,'' the EPA agrees that further controls could be
required should the area fail to meet its new Moderate area attainment
date. Such failure could lead to a reclassification to Serious
nonattainment. This reclassification would require the state to meet
additional more stringent Serious area requirements. Again, prior to
making a determination that the area failed to attain by the applicable
attainment date, we would consider any EE demonstrations submitted by
ADEQ under the criteria set forth in the EER.
Comment 6: Three commenters recommended that, concurrent with
review of potential EEs, ADEQ develop and submit to the EPA a SIP
revision in case there are not enough qualifying EER events to put the
Yuma NAA back into compliance. They stated that they did not want a
repeat of the August 2006 Yuma SIP that was submitted and recalled by
ADEQ.
Response 6: This final SIP call will require ADEQ to submit a SIP
revision, which, as discussed in Response 1, may also help ADEQ to meet
the requirement for reasonable controls under the EER. We interpret the
commenters' reference to the ``August 2006 Yuma SIP'' to mean the
``Yuma Maintenance Plan'' submitted by ADEQ on August 17, 2006 (Yuma
Maintenance Plan). We note that ADEQ has not withdrawn this SIP
revision and the EPA has not taken action to approve or disapprove this
SIP revision at this time. The EPA did find the motor vehicle emissions
budgets in the Yuma Maintenance Plan adequate for transportation
conformity purposes,\39\ but, as discussed in Section IV of this
document, we are now reversing that finding.
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\39\ 72 FR 32295 (June 12, 2007).
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Comment 7: Two commenters expressed support for a maximum
attainment date of December 31, 2027, rather than the December 31, 2025
date proposed by the EPA. Both commenters asserted that a period of
approximately six years was necessary to fully implement control
measures in the area in time to achieve three years of clean data prior
to the attainment date. One commenter elaborated on the statutory basis
for such a deadline, noting that CAA section 188(c)(1) establishes two
alternative attainment deadlines for Moderate PM10
nonattainment areas: Four years after designation for areas designated
in 1990, and six years after designation for all other areas. The
commenter asserted that the CAA does not require the EPA to set the new
maximum attainment date according to the shorter deadline and that the
six-year deadline would be more appropriate for the Yuma NAA. The
commenter then provided additional background concerning the history of
the EPA's PM10 nonattainment requirements and noted that the
four-year deadline for areas designated under CAA 107(d)(4) was
specifically designed for areas that had been required to submit SIPs
containing attainment demonstrations prior to enactment of the CAA
Amendments of 1990. The commenter argued that application of this
deadline to areas subject to subsequent SIP calls requiring submission
of a new attainment demonstration would be inappropriate and that such
areas should be given the normal six years to attain.
Response 7: We agree with the commenters that an attainment date of
as expeditiously as possible, but not later than December 31, 2027, is
appropriate for the Yuma NAA. Because the original attainment date of
December 31, 1994, has elapsed, CAA section 110(k)(5) provides the EPA
with discretion to adjust this date ``as appropriate.'' We proposed a
maximum attainment date of December 31, 2025 (approximately four years
from our expected final action) because the Yuma NAA's original maximum
attainment date was approximately four years from its designation as a
NAA in 1990. However, as noted by one of the commenters, the December
31, 1994 date applied only to areas that were designated nonattainment
under CAA section 107(d)(4), i.e., those areas that had either been
identified as ``Group I areas'' because they had a high probability of
violating the NAAQS, or that had, in fact, violated the NAAQS prior to
January 1, 1989. Most of these areas, including the Yuma NAA, which had
been identified as a Group I area,\40\ were already required to have
submitted attainment demonstrations.\41\ In contrast, for newly
designated NAAs which were not previously required to submit a
nonattainment plan for the 1987 PM10 NAAQS, CAA section
188(c)(1) set a maximum attainment date of ``as expeditiously as
practicable but no later than the end of the sixth calendar year after
the area's designation as nonattainment.'' The
[[Page 29835]]
EPA acknowledges, as noted by the commenter, that areas such as Yuma
that were designated nonattainment prior to 1990 would therefore have
had a shorter maximum period of time to attain the NAAQS, i.e., only
four years from the enactment of section 188(c) to 1994, whereas newly
designated areas would have a maximum outer attainment date of six
years.
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\40\ 52 FR 29383 (August 7, 1987).
\41\ See 52 FR 24672, 24681 (July 1, 1987) (Group I SIPs ``will
have to contain full PM10 control strategies including a
demonstration of attainment . . .'' and Group II SIPS must include
an enforceable commitment to ``adopt and submit to EPA a
PM10 control strategy that assures attainment . . .'')
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In this action, however, the EPA must determine an appropriate new
attainment date, as contemplated in CAA section 110(k)(5), due to the
passage of time since the nonattainment designation of the Yuma NAA and
intervening events. Because the 2006 CDD suspended the obligation for
development and submittal of an attainment demonstration, the Yuma NAA
is in a different position now than it was in 1990, when an attainment
demonstration had already been required for the area. Therefore, after
consideration of comments on this issue, we agree that an attainment
date of as expeditiously as practicable but no later than December 31,
2025, is not appropriate for the Yuma NAA. We also note that, if we
were newly designating the Yuma NAA as nonattainment for this NAAQS,
the maximum attainment date would be December 31, 2028 (i.e., the end
of the sixth calendar year after the area's designation as
nonattainment). However, given that the area has been designated
nonattainment for more than thirty years and ADEQ has already
undertaken substantial work to characterize the sources contributing to
nonattainment in the Yuma NAA and to develop rules to regulate sources
within its jurisdiction, we do not consider it appropriate to provide
six full calendar years before the maximum attainment date.
In determining the ``appropriate'' attainment date for the Yuma NAA
under CAA section 110(k)(5), we have considered both the provisions of
188(c)(1) (described above) and the provisions of CAA section
172(a)(2)(A), which sets attainment dates for all nonattainment areas,
except those for which attainment dates are specifically provided under
other provisions of title I, part D.\42\ In particular, section
172(a)(2)(A) provides a default attainment date of as expeditiously as
practicable, but no later than five years from the nonattainment
designation, but permits the EPA to extend this date, as appropriate,
up to 10 years from the date of designation as nonattainment,
considering the severity of nonattainment and the availability and
feasibility of pollution control measures.
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\42\ CAA section 172(a)(2)(D).
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Although these provisions of section 172(a)(2)(A) would normally be
superseded by 188(c)(1) for newly designated PM10 NAAs, in
this instance the maximum statutory attainment dates of section
188(c)(1) for the Yuma NAA have long since passed. In such
circumstances, the EPA considers it reasonable to look to section
172(a)(2)(A) for relevant guideposts, along with 188(c)(1), in setting
an appropriate maximum attainment deadline under 110(k)(5) for the Yuma
NAA, as if the area were newly nonattainment. Because the Yuma NAA
remains classified as Moderate and because additional controls for the
Yuma NAA are clearly available and feasible, we do not believe a
lengthy extension (i.e., a year or more) beyond the five-year deadline
set forth in section 172(a)(2)(A) is appropriate. However, we find that
an extension of several months beyond the five-year default maximum
attainment date is appropriate in order to align the maximum attainment
date with the end of the calendar year, consistent with end-of-year
attainment dates specified for PM10 in CAA section
188(c)(1). In this case, the triggering action for the new attainment
plan requirements is the final CDD rescission and SIP call, rather than
the initial designation of the area as nonattainment. The final
effective date for these actions is June 16, 2022. Therefore, we are
finalizing a maximum attainment date of December 31, 2027, for the Yuma
NAA pursuant to CAA section 110(k)(5).
III. Environmental Justice Assessment
To identify environmental burdens and susceptible populations in
underserved communities in the Yuma NAA, and to examine the
implications of our proposed action on these communities, we performed
a screening-level analysis using the EPA's environmental justice (EJ)
screening and mapping tool (``EJSCREEN'').\43\ Our screening-level
analysis included multiple environmental and demographic indicators,
including the EJSCREEN ``Demographic Index,'' which is the average of
an area's percent minority and percent low income populations, i.e.,
the two demographic indicators explicitly named in Executive Order
12898. The Demographic Index for the Yuma NAA exceeds the 75th
percentile, compared to the United States as a whole.\44\
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\43\ EJSCREEN provides a nationally consistent dataset and
approach for combining environmental and demographic indicators.
EJSCREEN is available at https://www.epa.gov/ejscreen/what-ejscreen.
The EPA used EJSCREEN to obtain environmental and demographic
indicators and EJ Indexes representing the Yuma NAA. Our analysis is
included in the file titled ``Environmental Justice in Yuma 1987
PM10 Nonattainment Area.pdf,'' available in the rulemaking docket
for this action.
\44\ EJSCREEN reports environmental indicators (e.g., air toxics
cancer risk, lead paint exposure, and traffic proximity and volume)
and demographic indicators (e.g., people of color, low income, and
linguistically isolated populations). Depending on the indicator, a
community that scores highly for an indicator may have a higher
percentage of its population within a demographic group or a higher
average exposure or proximity to an environmental health hazard
compared to the state, region, or national average. EJSCREEN also
reports EJ indexes, which are combinations of a single environmental
indicator with the EJSCREEN Demographic Index. For additional
information about environmental and demographic indicators and EJ
indexes reported by EJSCREEN, see EPA, ``EJSCREEN Environmental
Justice Mapping and Screening Tool--EJSCREEN Technical
Documentation,'' section 2 (September 2019).
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As discussed in the EPA's EJ technical guidance, people of color
and low-income populations often experience greater exposure and
disease burdens than the general population, which can increase their
susceptibility to adverse health effects from environmental
stressors.\45\ Underserved communities can also experience reduced
access to health care, nutritional, and fitness resources, further
increasing their susceptibility.
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\45\ EPA, ``Technical Guidance for Assessing Environmental
Justice in Regulatory Analysis,'' section 4 (June 2016).
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This final action requires the State of Arizona to submit to the
EPA a SIP revision providing for attainment of the 1987 24-hour
PM10 NAAQS in the Yuma NAA. The development of required SIP
elements will result in air quality improvements and human health
benefits for all Yuma NAA residents, including those in underserved
communities. Conversely, failure to make the determinations in this
final action could inhibit or delay the attainment of the 1987 24-hour
PM10 NAAQS in the Yuma NAA, which could negatively impact
health effects for all Yuma NAA residents and could perpetuate the EJ
concerns potentially faced by communities in these areas, including
Cocopah and Fort Yuma (Quechan) tribes, which have lands within the
Yuma NAA. Thus, we believe that finalizing our proposed action will
help to reduce disproportionate health, environmental, economic, and
climate impacts on disadvantaged communities in the Yuma NAA and that
this action will not have disproportionately high and adverse human
health or environmental effects on minority populations, low-income
populations and/or indigenous peoples, as specified in Executive Order
12898.
[[Page 29836]]
IV. Final Action
The EPA has evaluated the comments on the proposed action. We have
also reviewed the most recent monitoring data from the Yuma Supersite
PM10 monitor. Based on certified data from 2020, the monitor
had a 2018-2020 design value of 5.4.\46\ Based on preliminary data from
2021, the monitor had a 2019-2021 design value of 2.7.\47\ These design
values show continued violations of the 1987 24-hour PM10
NAAQS and are therefore consistent with our proposed actions. Taking
into consideration these data, and for the reasons described in the
proposal and in our responses to comments in section II of this
document, we conclude that it is appropriate to finalize the proposed
CDD rescission and SIP call. Therefore, we are finalizing the
rescission of the 2006 CDD for the Yuma NAA and reinstating the
requirements that were suspended under that CDD.
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\46\ EPA, AQS, 2020 ``Design Value Report,'' dated January 26,
2022.
\47\ EPA, AQS, 2021 preliminary ``Design Value Report,'' dated
January 26, 2022.
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We are also finding, pursuant to CAA section 110(k)(5), that the
Arizona SIP is substantially inadequate to attain or maintain the 1987
24-hour PM10 NAAQS in the Yuma NAA. In order to address this
inadequacy, we are issuing a SIP call under CAA section 110(k)(5),
requiring the State to submit a SIP revision meeting the applicable
nonattainment plan requirements of the CAA for Moderate PM10
NAAs.\48\ These requirements include: (i) An approved permit program
for construction of new and modified major stationary sources; \49\
(ii) a demonstration that the plan provides for attainment by no later
than the applicable Moderate area attainment date or a demonstration
that attainment by that date is impracticable; \50\ (iii) provisions
for the implementation of RACM and RACT; \51\ (iv) quantitative
milestones that will be used to evaluate compliance with the
requirement to demonstrate reasonable further progress (RFP); \52\ (v)
evaluation and regulation of PM10 precursors; \53\ (vi) a
description of the expected annual incremental reductions in emissions
that will demonstrate RFP; \54\ (vii) emissions inventories, as
necessary; \55\ (viii) other control measures (besides RACM and RACT)
as may be needed for attainment; \56\ (ix) contingency measures,\57\
and (x) a motor vehicle emissions budget for the purpose of determining
the conformity of transportation programs and plans developed by the
metropolitan planning organization for the area.\58\ The EPA's
longstanding guidance on these statutory requirements is embodied in
the ``The General Preamble for Implementation of Title I of the Clean
Air Act (CAA) Amendments.'' \59\
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\48\ See CAA section 110(k)(5) (``Any finding under this
paragraph shall, to the extent the Administrator deems appropriate,
subject the State to the requirements of this chapter to which the
State was subject when it developed and submitted the plan for which
such finding was made . . .'')
\49\ CAA section 189(a)(1)(A). On November 2, 2015, the EPA
published a final limited approval and limited disapproval of
revisions to ADEQ's new source review permitting rules. 80 FR 67319.
On May 4, 2018, the EPA approved additional rule revisions to
address many of the deficiencies identified in the 2015 action. 83
FR 19631. Accordingly, we do not expect that any revisions to ADEQ's
permit program would be necessary to address this requirement.
\50\ CAA section 189(a)(1)(B).
\51\ CAA sections 172(c)(1) and 189(a)(1)(C).
\52\ CAA section 189(c). Consistent with the General Preamble,
57 FR 13539, the starting point for counting the three-year periods
in 189(c)(1) will be the due date for the SIP submittal, i.e., 18
months from this final action.
\53\ CAA section 189(e).
\54\ CAA section 172(c)(2).
\55\ CAA section 172(c)(3).
\56\ CAA section 172(c)(6).
\57\ CAA section 172(c)(9).
\58\ 40 CFR 93.102(b)(1).
\59\ 57 FR 13498 (April 16, 1992).
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We are requiring Arizona to submit this Moderate nonattainment plan
SIP submission within 18 months of the effective date of this final
action. We are establishing an attainment date for the 1987
PM10 NAAQS in the Yuma NAA of as expeditiously as
practicable but no later than December 31, 2027. Consistent with this
attainment date, implementation of RACM/RACT will be required no later
than January 1, 2027. Furthermore, as discussed in Response 1, in order
for exceedances associated with high wind events to qualify for
exclusion under the EER, the state must provide evidence of the
effective implementation and enforcement of SIP-approved or other
enforceable controls on the anthropogenic sources within the State's
jurisdictional boundaries that cause or contribute to the monitored
exceedance or violation. Given the prevalence of high wind events in
the Yuma NAA and the fact that PM10 design values are based
on three years of ambient monitoring data, we expect that ADEQ would
need to require implementation of reasonable controls on these sources
no later than January 1, 2025, in order for the Yuma NAA to attain the
PM10 NAAQS by December 31, 2027.
Finally, we are reversing our previous adequacy finding for the
motor vehicle emissions budgets in the Yuma Maintenance Plan to a
finding of inadequacy pursuant to 40 CFR 93.118(f)(1)(vi). This
reversal will require transportation agencies to determine conformity
using interim emission tests pursuant to 40 CFR 93.119, instead of the
current practice of using the past maintenance plan motor vehicle
emissions budgets as part of a budget test.
V. Statutory and Executive Order Reviews
This action is a determination that the Yuma NAA is no longer
attaining the 1987 p.m.10 NAAQS, based on the EPA's review
of air quality data, and a SIP call under section 110(k)(5) of the CAA.
Upon a finding that a SIP is deficient, section 110(k)(5) of the CAA
directs the Agency to require the state to correct the deficiency.
Therefore, this action does not impose additional requirements beyond
those required by the CAA itself. 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) and discussed in Section III of
this document.
[[Page 29837]]
In addition, this action does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP obligations discussed herein do not apply to Indian
tribes and thus this action will not impose substantial direct costs on
tribal governments or preempt tribal law. Nonetheless, the EPA intends
to notify the Cocopah and Fort Yuma (Quechan) tribes, which have lands
within the Yuma NAA and were identified in our EJ screening analysis
noted in Section III of this document.
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 July 18, 2022. Filing a petition
for reconsideration by the Administrator of this final rule does not
affect the finality of this action for the purposes of judicial review
nor does it extend the time within which a petition for judicial review
may be filed and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Particulate matter, Reporting
and recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 5, 2022.
Martha Guzman Aceves,
Regional Administrator, Region IX.
For the reasons stated in the preamble, the EPA amends chapter I,
title 40 of the Code of Federal Regulations as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart D--Arizona
0
2. Section 52.126 is amended by adding paragraph (d) to read as
follows:
Sec. 52.126 Control strategy and regulations: Particulate matter.
* * * * *
(d) Pursuant to CAA section 110(k)(5), the State of Arizona is
required to submit a revision to the Arizona SIP for the Yuma
PM10 nonattainment area (NAA) to the EPA by November 17,
2023. The SIP revision must, among other elements, provide for
attainment of the 24-hour PM10 NAAQS in the Yuma NAA as
expeditiously as practicable but no later than December 31, 2027.
[FR Doc. 2022-10060 Filed 5-16-22; 8:45 am]
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