John Quincy Adams is credited with saying: “Patience and perseverance have a magical effect before which difficulties disappear and obstacles vanish.” This is certainly apropos for Arizona in light of recent federal actions regarding two very critical and intertwined air regulatory issues: a decision rendered by the Ninth Circuit Court of Appeals; and notification of a Final Rule published by the U.S. Environmental Protection Agency (“EPA”).
Being centrally located in Arizona’s desert, Maricopa County and surrounding areas have long been in nonattainment of the National Ambient Air Quality Standards (“NAAQS”) for the criteria pollutant of course particulate matter (“PM10”). Over the course of the 40 years following the establishment of the NAAQS in the Clean Air Act (“CAA”) Amendments of 1970, Arizona has submitted numerous air plans to the EPA – none of which received full approval – each implementing increasingly more stringent measures, control technologies and regulations designed to bring the Maricopa County nonattainment area for PM10 into attainment. Meanwhile, the EPA gradually tightened the NAAQS for PM10; and, due to its inability to achieve attainment, the Maricopa County nonattainment area’s designation and situation progressively got more “Serious.”
The State Plan submitted in 2007 was Arizona’s last chance to prevent the EPA from developing and implementing a Federal Plan with which Arizona would be required to comply. Yet, history was about to repeat itself once again when, in September 2010, Arizona received notice that the EPA was preparing to partially disapprove/approve the 2007 Plan. Resolute on submitting an approvable State Plan and not allowing the EPA to implement one of its own, Arizona boldly decided, in January 2011, to withdraw its 2007 Plan, address the perceived inadequacies, and resubmit the plan within 18 months for approval. However, a favorable outcome via this course of action was partially dependent upon Arizona and other states successfully pressuring the EPA to review and revise their Exceptional Events Rule (“EER”) which serves as a pivotal tool to the states in demonstrating attainment with the NAAQS, especially in a region that experiences high occurrences of Haboobs.
Recognizing that some events, elements, and situations are beyond one’s control, Congress gave the EPA, in 2005, the authority to establish a rule that allows for the exclusion of certain air data – that which is attributable to an event or occurrence that is deemed exceptional – from consideration in determining attainment of the NAAQS. While the March 2007 implementation of the EER was timely for Arizona, it proved to be rather difficult to submit an approvable exception. In fact, by the EPA’s own admission, interpreting and implementing the EER was challenging for the EPA Regional offices reviewing and acting on the submitted demonstrations, as well as the air agencies developing and submitting them.
Fortunately, with the collaboration of a myriad of partners, including the EPA, Arizona revised the 2007 Plan and resubmitted it in May 2012. Simultaneously, Arizona was also working closely with the EPA to improve the functionality and practicability of the EER, initially via the preparation of an exceptional events demonstration for the 2011 Haboob event that occurred in Arizona and received global recognition. Through these collaborative efforts, Arizona successfully submitted exceptional events demonstration packages for 135 exceedances, attributed to 16 separate events.
By the summer of 2013, the EPA had concurred with Arizona’s exceptional events demonstrations for all 135 exceedances; officially approved the 2012 State Plan and proposed a finding that the Maricopa County area had attained the NAAQS for PM10. It had appeared as though Arizona’s perseverance prevailed and for the first time in 43 years, the Maricopa County nonattainment area would finally be declared in attainment for PM10. Furthermore, using the lessons learned from working with Arizona and other states on exceptional events demonstration, the EPA proposed revisions to the EER on which it held a public hearing in Arizona.
Unfortunately, Arizona’s celebration that summer of 2013 was short-lived when a lawsuit was filed challenging the EPA’s findings on Arizona’s 2012 State Plan and exceptional events demonstrations. However, Arizona’s patience was finally rewarded on September 12, 2016 when the Ninth Circuit upheld the EPA’s determination on both, with one minor exception related to the “contingency measures” requirement of the State Plan. A few days later, on September 19th, the EPA released its final rule revisions to the EER and associated guidance. Arizona’s U.S. Senator Jeff Flake has been instrumental in these collaborations with Arizona and the EPA, and shared the following statement regarding the revisions to the EER:
Thanks to the hard work of Arizona stakeholders, the EPA has finally listened and made the first step in streamlining the process in which exceptional events are evaluated. With continued support, we can push for additional common sense improvements to this rule that will further protect the states from unfair penalties.
Arizona’s patience and perseverance has been significantly rewarded this September, and that certainly is cause for celebration. It has now been a very long 46 years of being in nonattainment for the Maricopa County area. While the obstacles that have been impeding the ability for Arizona to attain the NAAQS for PM10 have been overcome, they are still not fully addressed. Senator Flake is right! There is still much more that can and ought to be done to improve the EER. It is an essential tool to all the states, especially with the EPA’s increasingly rigorous tightening of the NAAQS for each criteria pollutant.