[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]
BILLING CODE 6560-50-P