[Federal Register Volume 86, Number 112 (Monday, June 14, 2021)]
[Proposed Rules]
[Pages 31460-31464]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-11456]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[EPA-HQ-OAR-2017-0548; FRL-10023-49-OAR]
Intended Air Quality Designations for the 2015 Ozone National
Ambient Air Quality Standards; Response to the July 10, 2020, Court
Decision Addressing El Paso, Texas and Weld County, Colorado:
Notification of Availability and Public Comment Period
AGENCY: Environmental Protection Agency (EPA).
[[Page 31461]]
ACTION: Notification of availability and public comment period.
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SUMMARY: This notification is hereby given that the Environmental
Protection Agency (EPA or Agency) has posted on our public electronic
docket and internet website revised responses to certain state
designation recommendations for the 2015 Ozone National Ambient Air
Quality Standards (NAAQS) (2015 Ozone NAAQS). These responses include
our intended designations for El Paso County, Texas (associated with
the previously designated Do[ntilde]a Ana County, New Mexico
nonattainment area) and Weld County, Colorado (associated with the
Denver Metro/North Front Range, Colorado nonattainment area). The EPA
invites the public to review and provide input on our intended
designations during the comment period specified in the DATES section.
The EPA sent its revised responses directly to the states of Texas and
Colorado on or about May 24, 2021. The EPA intends to make final
designation determinations for the counties addressed by these
responses no earlier than 120 days from the date the EPA notified the
states of the Agency's intended designations.
DATES: Comments must be received on or before July 14, 2021. Please
refer to SUPPLEMENTARY INFORMATION for additional information on the
comment period.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2017-0548, at https://www.regulations.gov. Follow the online
instructions for submitting comments. Out of an abundance of caution
for members of the public and our staff, the EPA Docket Center and
Reading Room are closed to the public, with limited exceptions, to
reduce the risk of transmitting COVID-19. Our Docket Center staff will
continue to provide remote customer service via email, phone, and
webform. We encourage the public to submit comments via https://www.regulations.gov, as there may be a delay in processing mail and
faxes. Hand deliveries and couriers may be received by scheduled
appointment only. For further information on EPA Docket Center services
and the current status, please visit us online at https://www.epa.gov/dockets.
Once submitted, comments cannot be edited or removed from
regulations.gov. The EPA may publish any comment received to our public
docket. Do not submit electronically any information you consider to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Multimedia submissions (audio,
video, etc.) must be accompanied by a written comment. The written
comment is considered the official comment and should include
discussion of all points you wish to make. The EPA will generally not
consider comments or comment contents located outside of the primary
submission (i.e., comments hosted on the Web, Cloud, or other file
sharing system). For additional submission methods, the full EPA public
comment policy, information about CBI or multimedia submissions, and
general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: For general questions concerning this
action, please contact Carla Oldham, U.S. EPA, Office of Air Quality
Planning and Standards, Air Quality Policy Division, C541A, Research
Triangle Park, NC 27709, telephone (919) 541-3347, email at
[email protected] or Andrew Leith, U.S. EPA, Office of Air Quality
Planning and Standards, Air Quality Policy Division, C541A, Research
Triangle Park, NC 27709, telephone (919) 541-1069, email at
[email protected]. The following EPA contacts can answer questions
regarding areas in a particular EPA Regional office:
Regional Office Contacts:
Region VI--Carrie Paige (214) 665-6521, email at [email protected].
Region VIII--Abby Fulton, (303) 312-6563, email at [email protected].
The public may inspect the recommendations from the states and
tribes, our recent letters notifying the affected states and tribes of
our intended designations, and area-specific technical support
information at the following locations:
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Regional offices Affected state(s)
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EPA Region 6, 1201 Elm Street, Dallas, New Mexico and Texas.
Texas 75270.
EPA Region 8, Air Quality Planning Colorado.
Branch, 1595 Wynkoop Street, Denver,
Colorado 80202.
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Most of the EPA offices are closed to reduce the risk of
transmitting COVID-19, but staff remain available via telephone and
email. The EPA encourages the public to review designation
recommendations from states, our recent letters notifying the affected
states of our intended designations, and area-specific technical
support information online at https://www.epa.gov/ozone-designations
and in the public docket for these ozone designations at https://www.regulations.gov under Docket ID No. EPA-HQ-OAR-2017-0548.
SUPPLEMENTARY INFORMATION:
I. What is the purpose of this action?
The purpose of this notification of availability is to solicit
input from interested parties other than states on the EPA's recent
revised responses to the state designation recommendations for the 2015
Ozone NAAQS. These responses, and their supporting technical analyses,
can be found at https://www.epa.gov/ozone-designations and in the
public docket for these ozone designations at https://www.regulations.gov under Docket ID No. EPA-HQ-OAR-2017-0548.
On October 1, 2015, the EPA Administrator signed a notification of
final rulemaking that revised the primary and secondary ozone NAAQS (80
FR 65292; October 26, 2015). The EPA established the revised primary
and secondary ozone NAAQS at 0.070 parts per million (ppm). The 2015
Ozone NAAQS are met at an ambient air quality monitoring site when the
3-year average of the annual fourth highest daily maximum 8-hour
average ozone concentration (i.e., the design value) is less than or
equal to 0.070 ppm. The revised standards will improve public health
protection, particularly for at-risk groups including children, older
adults, people of all ages who have lung diseases such as asthma, and
people who are active outdoors, especially outdoor workers. They also
will improve the health of trees, plants and ecosystems.
After the EPA promulgates a new or revised NAAQS, the Clean Air Act
(CAA) requires the EPA to designate all areas of the country as either
``Nonattainment,'' ``Attainment,'' or ``Unclassifiable,'' for that
NAAQS. The process for these initial designations is contained in CAA
section 107(d)(1) (42 U.S.C. 7407). After promulgation of a
[[Page 31462]]
new or revised NAAQS, each governor or tribal leader has an opportunity
to recommend air quality designations, including the appropriate
boundaries for nonattainment areas, to the EPA. The EPA considers these
recommendations as part of its duty to promulgate the formal area
designations and boundaries for the new or revised NAAQS. By no later
than 120 days prior to promulgating designations, the EPA is required
to notify states, territories, and tribes, as appropriate, of any
intended modifications to an area designation or boundary
recommendation that the EPA deems necessary. Accordingly, the EPA
designated all areas of the country as to whether they met, or did not
meet, the NAAQS in three rounds, resulting in 52 nonattainment areas.
In Round 1 (82 FR 54232; November 6, 2017), the EPA designated
2,646 counties, two separate tribal areas and five territories as
attainment/unclassifiable, and one area as unclassifiable. In Round 2
(83 FR 25776; April 30, 2018), the EPA designated 51 nonattainment
areas, one unclassifiable area, and all remaining areas as attainment/
unclassifiable, except for the eight counties in the San Antonio, Texas
area. In Round 3 (83 FR 35136; July 17, 2018), the EPA designated one
county in the San Antonio area as nonattainment and the other seven
counties as attainment/unclassifiable.
Several environmental and public health advocacy groups, three
local government agencies, and the state of Illinois filed a total of
six petitions for review challenging the EPA's 2015 ozone NAAQS
designations promulgated on April 30, 2018. The District of Columbia
Circuit Court consolidated the petitions into a single case, Clean
Wisconsin v. EPA, 964 F.3d 1145 (D.C. Cir. 2020). Collectively, the
petitioners challenged aspects of the EPA's final designations
associated with nine nonattainment areas. The petitioners primarily
argued that the EPA improperly designated counties (in whole or part)
as attainment that should have been designated as nonattainment because
of contribution to nearby counties with violating monitors. In its
response brief, the EPA requested voluntary remand of the final
designation decisions for ten counties associated with four
nonattainment areas to further review those designations.
On July 10, 2020, the District of Columbia Circuit Court granted
the EPA's requests for voluntary remand and remanded several other
counties. In total, the Court remanded 16 counties associated with nine
nonattainment areas back to the EPA, including nearby counties that EPA
designated as attainment. The Court did not vacate the initial April
30, 2018 designations, but required the EPA to ``issue revised
designations as expeditiously as practicable.'' In light of the Court
decision, the EPA re-evaluated the existing technical record that was
used for the initial April 2018 designations, to support either
revising or reaffirming the designations for these areas.
The EPA is responding to this remand through two separate Federal
Register documents. The first document, signed on May 24, 2021,
finalizes designation decisions for 14 counties. EPA's December 2017
initial designations and April 2018 final designations aligned with
Texas' and Colorado's recommendations for El Paso and Weld Counties,
respectively, and so, at that time, the EPA had no need to, and did
not, notify the two states that the Agency planned to modify the
states' recommendations. However, the EPA's intended designations for
those areas in response to the court's remand would modify the states'
recommendations. As such, the EPA is acting consistently with the CAA
requirement that the EPA notify the relevant states and allow them to
``demonstrate why any proposed modification is inappropriate,'' and is
undertaking a 120-day process.
In the EPA's April 2018 final designations, the intended boundary
for the El Paso-Las Cruces nonattainment area only contained the
southeastern portion of Do[ntilde]a Ana County, New Mexico, and so was
called the ``Do[ntilde]a Ana County, New Mexico'' nonattainment area in
that final action. The EPA's intended modification of Texas's
attainment recommendation would expand the boundary of the
nonattainment area to include multiple counties and thus, become a
multi-state nonattainment area. As such, in keeping with the EPA
practices, the Agency intends to name the nonattainment area based on
the Combined Statistical Area that comprised its area of analysis.
II. Instructions for Submitting Public Comments and Internet Website
for Rulemaking Information
A. Invitation to Comment
The purpose of this document is to solicit input from interested
parties, other than the states to which we have sent notification
letters, on the EPA's recent responses to the designation
recommendations for the 2015 Ozone NAAQS. These responses, and their
supporting technical analyses, can be found at https://www.epa.gov/ozone-designations and in the public docket for these ozone
designations at Docket ID No. EPA-HQ-OAR-2017-0548. The EPA Docket
Office can be contacted at (202) 566-1744, and is located at EPA Docket
Center Reading Room, WJC West Building, Room 3334, 1301 Constitution
Avenue NW, Washington, DC 20004. However, as noted earlier, the EPA
Docket Center and Reading Room are closed to the public, with limited
exceptions, to reduce the risk of transmitting COVID-19. Our Docket
Center staff will continue to provide remote customer service via
email, phone, and webform. We encourage the public to submit comments
via https://www.regulations.gov, as there may be a delay in processing
mail and faxes. Hand deliveries and couriers may be received by
scheduled appointment only. For further information on EPA Docket
Center services and the current status, please visit us online at
https://www.epa.gov/dockets.
CAA section 107(d)(1) provides a process for air quality
designations that involves recommendations by states, territories, and
tribes to the EPA and responses from the EPA to those parties, prior to
the EPA promulgating final area designations and boundaries. The EPA is
not required under the CAA section 107(d)(1) to seek public comment
during the designation process, but we are electing to do so for these
areas with respect to the 2015 Ozone NAAQS to gather additional
information for the EPA to consider before making final designations
for the specific areas addressed in the EPA's recent letters to states
and tribes. The EPA is basing its final designations decisions on data
and information contained in the existing designations record. As such,
the EPA will not consider new information submitted by states or during
the public comment process that is not a part of the existing record,
although EPA will consider new analysis based on the existing record.
The EPA's reliance on the existing record to support the designations
is reasonable in light of the circumstances. The CAA does not specify
what data the Agency must rely on in re-promulgating designations upon
remand from a court. As such, the EPA's reasonable reliance on the
existing record reflects the EPA's dedication to national consistency
and the specific direction of the court in Clean Wisconsin: ``to issue
revised designations as expeditiously as practicable'' in responding to
the remand.
Section 107(d) of the CAA lays out a particular timeline for
designations decisions to be made, triggered from the date a NAAQS is
promulgated. For the 2015 ozone NAAQS, the designation of
[[Page 31463]]
every area of the country apart from those remanded to the Agency
relied on the existing record. As the D.C. Circuit stated in previous
cases reviewing EPA's designations decisions, ``inconsistency is the
hallmark of arbitrary agency action.'' \1\ Relying on the data
available to the Agency at the time of the April 2018 designations
action would prevent inconsistent treatment between the remanded
counties and every other area of the country. In addition, this action
proposes to expand the boundaries of existing nonattainment areas but
does not create any new nonattainment areas. Understanding that it is
important to treat areas across the country consistently, it is that
much more important that EPA treat different portions of the same
nonattainment area consistently. For example, in this action the EPA is
proposing to expand the boundary of the Denver Metro/North Front Range,
Colorado nonattainment area to include the entirety of Weld County,
rather than excluding the northern portion of the county. It would be
illogical in this type of situation for the Agency to use one set of
data (e.g., 2014-2016 design values) for the previously-designated
portion of the nonattainment area, which includes seven full and two
partial counties, and a different set (e.g., 2017-2019 or 2018-2020
design values) for the new portion of Weld County.
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\1\ Catawba County v. EPA, 571 F.3d 20, 51 (D.C. Cir. 2009); see
also Mississippi Comm'n v. EPA, 790 F.3d 138, 160 (D.C. Cir. 2015).
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The D.C. Circuit's direction to act ``as expeditiously as
practicable'' also weighs in favor of using the existing record.
Gathering and analyzing new data would necessarily have taken much
longer, especially because a large portion of the data the EPA
generally relies upon in its designations decision-making process is
obtained outside the Agency, including from states.
Treating different portions of the same nonattainment area
consistently also applies to the attainment date for the Denver Metro/
North Front Range, Colorado and El Paso-Las Cruces nonattainment areas.
The EPA invites public input on our responses to states regarding
these areas during the 30-day comment period provided in this
notification. To receive full consideration, input from the public must
be submitted to the docket by July 14, 2021. This notification and
opportunity for public comment does not affect any rights or
obligations of any state, or tribe, or of the EPA, which might
otherwise exist pursuant to the CAA section 107(d).
Please refer to the FOR FURTHER INFORMATION CONTACT section in this
document for specific instructions on submitting comments and locating
relevant public documents.
In establishing nonattainment area boundaries for a particular
area, CAA section 107(d)(1)(A) requires the EPA to include within the
boundaries both the area that does not meet the standard and any nearby
area contributing to ambient air quality in the area that does not meet
the NAAQS. We are particularly interested in receiving comments using
data in the existing record that support a position that a specific
geographic area should not be categorized as full county nonattainment.
The EPA encourages commenters to support their feedback using relevant
information addressing the CAA section 107(d)(1)(A) criteria.
Describe any assumptions and provide any technical
information and/or data that you used.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible.
Provide your input by the comment period deadline
identified.
The EPA intends to make final designation determinations for the
counties addressed by these responses as expeditiously as practicable,
but no earlier than 120 days from the date the EPA notified the states
of the Agency's intended designations. This would complete the
designation process for the 2015 Ozone NAAQS.
B. What should I consider as I prepare my comments for the EPA?
1. Submitting CBI. Do not submit CBI information to the EPA through
https://www.regulations.gov or email. Clearly mark the part or all of
the information that you claim to be CBI. For CBI in a disk or CD ROM
that you mail to the EPA, mark the outside of the disk or CD ROM as CBI
and then identify electronically within the disk or CD ROM the specific
information that is claimed as CBI. In addition to one complete version
of the comment that includes information claimed as CBI, a copy of the
comment that does not contain the information claimed as CBI must be
submitted for inclusion in the public docket. Information so marked
will not be disclosed except in accordance with procedures set forth in
40 Code of Federal Regulations (CFR) part 2. Send or deliver
information identified as CBI only to the following address: Tiffany
Purifoy, OAQPS CBI Officer, U.S. EPA, Office of Air Quality Planning
and Standards, Mail Code C404-02, Research Triangle Park, NC 27711,
telephone (919) 541-0878, email at [email protected], Attention
Docket ID No. EPA-HQ-OAR-2017-0548. There will be a delay in confirming
receipt of CBI packages, because the EPA-RTP office is closed to reduce
the risk of transmitting COVID-19. Due to the office closure, EPA is
also requesting that parties notify the OAQPS Document Control Officer
via telephone, (919) 541-0878, or email at [email protected] when
mailing information identified as CBI.
2. Tips for Preparing Your Comments. When submitting comments,
remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions.
Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
C. Where can I find additional information for this rulemaking?
The EPA has also established a website for this rulemaking at
https://www.epa.gov/ozone-designations. The website includes the state,
territorial and tribal recommendations, the EPA's intended area
designations, information supporting the EPA's preliminary designation
decisions, the EPA's designation guidance for the 2015 Ozone NAAQS, as
well as the rulemaking actions and other related information that the
public may find useful.
D. Clean Air Act Section 307(b)
Section 307(b)(1) of the CAA governs judicial review of final
actions by the EPA. This section provides, in part, that petitions for
review must be filed in the Court of Appeals for the District of
Columbia Circuit: (i) When the Agency action consists of ``nationally
applicable regulations promulgated, or final action taken, by the
Administrator,'' or (ii) when such action is locally or regionally
applicable, ``if such action is based on a determination of nationwide
scope or effect and if in taking such action the Administrator finds
and publishes that such action is based on such a determination.'' For
locally or regionally applicable final actions, the CAA reserves to EPA
complete discretion whether to invoke the exception in (ii).
If finalized, the action designating the two areas discussed in
this notification for the 2015 ozone NAAQS would be ``nationally
applicable'' within the meaning of CAA section 307(b)(1). If EPA takes
final action designating these two areas, in the alternative, the
Administrator intends to exercise the
[[Page 31464]]
complete discretion afforded to him under the CAA to make and publish a
finding that the final action (to the extent a court finds the action
to be locally or regionally applicable) is based on a determination of
``nationwide scope or effect'' within the meaning of CAA section
307(b)(1).\2\ If EPA finalizes this action, it will designate two areas
for the 2015 ozone NAAQS, located in two non-adjacent states, in two
different EPA regions, and in two different federal judicial circuits,
that were remanded to EPA by the D.C. Circuit Court of Appeals.\3\ It
would apply a uniform, nationwide analytical method and interpretation
of CAA section 107(d)(1) to these areas across the country in a single
final action, and the final action would be based on this common core
of determinations. More specifically, for example, the final action
would be based on a determination by the EPA to evaluate areas
nationwide under a common five factor analysis in determining whether
areas were in violation of or contributing to an area in violation of
the 2015 Ozone NAAQS at the time of the April 2018 designations final
action.
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\2\ In deciding whether to invoke the exception by making and
publishing a finding that a final action on these designations is
based on a determination of nationwide scope or effect, the
Administrator will also take into account a number of policy
considerations, including his judgment balancing the benefit of
obtaining the D.C. Circuit's authoritative centralized review versus
allowing development of the issue in other contexts and the best use
of Agency resources.
\3\ In the report on the 1977 Amendments that revised section
307(b)(1) of the CAA, Congress noted that the Administrator's
determination that the ``nationwide scope or effect'' exception
applies would be appropriate for any action that has a scope or
effect beyond a single judicial circuit. See H.R. Rep. No. 95-294 at
323, 324, reprinted in 1977 U.S.C.C.A.N. 1402-03. Further, the EPA's
intended action is in response to a remand from the D.C. Circuit. As
is the case with the EPA's intended action on these two
designations, challenges to the EPA's original action were heard in
the D.C. Circuit because the action was nationally applicable and,
in the alternative, the EPA made and published a finding that the
action was based on a determination of nationwide scope or effect.
Panagiotis Tsirigotis,
Director, Office of Air Quality Planning and Standards.
[FR Doc. 2021-11456 Filed 6-11-21; 8:45 am]
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