[Federal Register Volume 87, Number 71 (Wednesday, April 13, 2022)]
[Proposed Rules]
[Pages 21842-21858]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-07513]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-HQ-OAR-2021-0742; FRL-8425-01-OAR]
RIN 2060-AV32
Determinations of Attainment by the Attainment Date, Extensions
of the Attainment Date, and Reclassification of Areas Classified as
Marginal for the 2015 Ozone National Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA or Agency) is
proposing three actions pursuant to section 181(b)(2) of the Clean Air
Act (CAA) related to the attainment date for 31 areas classified as
``Marginal'' nonattainment for the 2015 ozone National Ambient Air
Quality Standards (NAAQS). First, the Agency is proposing to determine
that six areas attained the standard by the applicable August 3, 2021,
attainment date. Second, the Agency is proposing to grant a 1-year
attainment date extension for the Uinta Basin, Utah, nonattainment
area. Third, the Agency is proposing to determine that 24 areas failed
to attain the standard by their applicable attainment date and. The
effect of failing to attain by the attainment date is that such areas
will be reclassified by operation of law to ``Moderate'' upon the
effective date of the final reclassification notice. Consequently, the
responsible state air agencies must submit state implementation plan
(SIP) revisions required to satisfy the statutory and regulatory
requirements for Moderate areas for the 2015 ozone NAAQS. The EPA
proposes deadlines for submission of those SIP revisions and
implementation of the related control requirements. This action, when
finalized, will fulfill the EPA's statutory obligation to determine
whether ozone nonattainment areas attained the NAAQS by the attainment
date and to publish a document in the Federal Register identifying each
area that is determined as having failed to attain and identifying the
reclassification. Several areas included in this proposed rule are also
addressed in a separate rulemaking to determine whether areas
classified as ``Serious'' for the 2008 ozone NAAQS attained the
standard by the applicable attainment date of July 20, 2021 (see Docket
ID EPA-HQ-OAR-2021-0741).
DATES: Comments must be received on or before June 13, 2022. Virtual
public hearing: The virtual hearing will be held on May 9, 2022.
ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OAR-2021-0742, by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov/
(our preferred method). Follow the online instructions for submitting
comments.
Email: [email protected]. Include Docket ID No. EPA-
HQ-OAR-2021-0742 in the subject line of the message.
Fax: (202) 566-9744.
Mail: U.S. Environmental Protection Agency, EPA Docket
Center, Office of Air and Radiation Docket, Mail Code 28221T, 1200
Pennsylvania Avenue NW, Washington, DC 20460.
Hand Delivery or Courier (by scheduled appointment only):
EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution
Avenue NW, Washington, DC 20004. The Docket Center's hours of
operations are 8:30 a.m.-4:30 p.m., Monday-Friday (except Federal
Holidays).
Instructions: All submissions received must include the Docket ID
No. for this rulemaking. Comments received may be posted without change
to https://www.regulations.gov/, including any personal information
provided. For detailed instructions on sending comments and additional
information on the rulemaking process, see the ``Public Participation''
heading of the SUPPLEMENTARY INFORMATION section of this notice. Out of
an abundance of caution for members of the public and our staff, the
EPA Docket Center and Reading Room are open to the public by
appointment only to reduce the risk of transmitting COVID-19. Our
Docket Center staff also continues to provide remote customer service
via email, phone, and webform. 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.
Submitting Confidential Business Information (CBI). Do not submit
information containing CBI to the EPA through https://www.regulations.gov/. Clearly mark the part or all of the information
that you claim to be CBI. For CBI information on any digital storage
media that you mail to the EPA, mark the outside of the digital storage
media as CBI and then identify electronically within the digital
storage media the specific information that is claimed as CBI. In
addition to one complete version of the comments that includes
information claimed as CBI, you must submit a copy of the comments that
does not contain the information claimed as CBI directly to the public
docket through the procedures outlined in Instructions above. If you
submit any digital storage media that does not contain CBI, mark the
outside of the digital storage media clearly that it does not contain
CBI. Information not marked as CBI will be included in the public
docket and the EPA's electronic public docket without prior notice.
Information marked as CBI will not be disclosed except in accordance
with procedures set forth in 40 Code of Federal Regulations (CFR) part
2. Our preferred method to receive CBI is for it to be transmitted to
electronically using email attachments, File Transfer Protocol (FTP),
or other online file sharing services (e.g., Dropbox, OneDrive, Google
Drive). Electronic submissions must be transmitted directly to the
OAQPS CBI Office using the email address, [email protected], and should
include clear CBI markings as described earlier. If assistance is
needed with submitting large electronic files that exceed the file size
limit for email attachments, and if you do not have your own file
sharing service, please email [email protected] to request a file
transfer link. If sending CBI information through the postal service,
please send it to the following address: OAQPS Document Control Officer
(C404-02), OAQPS, U.S.
[[Page 21843]]
Environmental Protection Agency, Research Triangle Park, North Carolina
27711, Attention Docket ID No. EPA-HQ-OAR-2021-0742. The mailed CBI
material should be double wrapped and clearly marked. Any CBI markings
should not show through the outer envelope.
Virtual public hearing. The virtual hearing will be held on May 9,
2022. The hearing will be held in three sessions: 9:00 a.m. to noon
(Eastern time), 1:00 p.m. to 3:00 p.m. (Eastern time), and 6:00 p.m. to
8:00 p.m. (Eastern time). We invite the public to register to speak
using https://www.epa.gov/ground-level-ozone-pollution/proposed-determinations-attainment-attainment-date-extensions-0 or (919) 541-
0641. The EPA will confirm your approximate speaking time by May 9,
2022 and we will post a list of registered speakers in approximate
speaking order at: https://www.epa.gov/ground-level-ozone-pollution/proposed-determinations-attainment-attainment-date-extensions-0. If we
reach a point in any session where all present, registered speakers
have been called on and no one else wishes to provide testimony we will
adjourn that session early. Refer to the SUPPLEMENTARY INFORMATION
section below for additional information.
FOR FURTHER INFORMATION CONTACT: For information about this proposed
rule, contact Emily Millar, U.S. EPA, Office of Air Quality Planning
and Standards, Air Quality Policy Division, C539-01 Research Triangle
Park, NC 27709; telephone number: (919) 541-2619; email address:
[email protected]; or Robert Lingard, U.S. EPA, Office of Air
Quality Planning and Standards, Air Quality Policy Division, C539-01
Research Triangle Park, NC 27709; by telephone number: (919) 541-5272;
email address: [email protected].
SUPPLEMENTARY INFORMATION: Participation in virtual public hearing.
Because of current Centers for Disease Control and Prevention
recommendations, as well as state and local orders for social
distancing to limit the spread of COVID-19, the EPA cannot hold in-
person public meetings at this time.
The EPA will begin pre-registering speakers and attendees for the
hearing upon publication of this notice in the Federal Register. The
EPA will accept registrations on an individual basis. To register to
speak at the virtual hearing, individuals may use the online
registration form available via the EPA's 2015 Ozone National Ambient
Air Quality Standards (NAAQS) Nonattainment Actions web page for this
hearing (https://www.epa.gov/ground-level-ozone-pollution/proposed-determinations-attainment-attainment-date-extensions-0) or contact Pam
Long at (919) 541-0641 or [email protected]. The last day to pre-
register to speak at the hearing will be May 9, 2022. On May 9, 2022
the EPA will post a general agenda for the hearing that will list pre-
registered speakers in approximate order at: https://www.epa.gov/ground-level-ozone-pollution/proposed-determinations-attainment-attainment-date-extensions-0.
The EPA will make every effort to follow the schedule as closely as
possible on the day of the hearing; however, please plan for the
hearings to run either ahead of schedule or behind schedule.
Each commenter will have 3 minutes to provide oral testimony. The
EPA encourages commenters to provide the EPA with a copy of their oral
testimony electronically (via email) by emailing it to Pam Long at
[email protected]. The EPA also recommends submitting the text of your
oral comments as written comments to the rulemaking docket.
The EPA may ask clarifying questions during the oral presentations
but will not respond to the presentations at that time. Written
statements and supporting information submitted during the comment
period will be considered with the same weight as oral comments and
supporting information presented at the public hearing.
Please note that any updates made to any aspect of the hearing is
posted online at https://www.epa.gov/ground-level-ozone-pollution/proposed-determinations-attainment-attainment-date-extensions-0. While
the EPA expects the hearing to go forward as set forth previously,
please monitor our website or contact Pam Long at (919) 541-0641 or
[email protected] to determine if there are any updates. The EPA does
not intend to publish a document in the Federal Register announcing
updates.
A Spanish interpreter will be provided. If you require the services
of an interpreter for any language other than Spanish or special
accommodations such as audio description, please pre-register for the
hearing with Pam Long and describe your needs by May 4, 2022. The EPA
may not be able to arrange accommodations without advanced notice.
Throughout this document ``we,'' ``us,'' or ``our'' means the EPA.
Table of Contents
I. Overview and Basis of Proposal
A. Overview of Proposal
B. What is the background for the proposed actions?
C. What is the statutory authority for the proposed actions?
D. How does the EPA determine whether an area has attained the
2015 ozone standard?
II. What is the EPA proposing and what is the rationale?
A. Determinations of Attainment by the Attainment Date
B. Extensions of Marginal Area Attainment Date
C. Determinations of Failure To Attain and Reclassification
1. International Transport and Requirements for CAA Section
179B
D. Moderate Area SIP Revisions
1. Required Submission Elements
2. Submission and Implementation Deadlines
III. Environmental Justice Considerations
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer Advancement Act (NTTAA)
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Judicial Review
I. Overview and Basis of Proposal
A. Overview of Proposal
The EPA is required to determine whether areas designated
nonattainment for an ozone NAAQS attained the standard by the
applicable attainment date, and to take certain steps for areas that
failed to attain (see CAA section 181(b)(2)). For a concentration-based
standard, such as the 2015 ozone NAAQS,\1\ a determination of
attainment is based on a nonattainment area's design value (DV).\2\
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\1\ Because the 2015 primary and secondary NAAQS for ozone are
identical, for convenience, the EPA refers to them in the singular
as ``the 2015 ozone NAAQS'' or as ``the standard.''
\2\ A design value is a statistic used to compare data collected
at an ambient air quality monitoring site to the applicable NAAQS to
determine compliance with the standard. The DV for the 2015 ozone
NAAQS is the 3-year average of the annual fourth highest daily
maximum 8-hour average ozone concentration. The DV is calculated for
each air quality monitor in an area, and the DV for an area is the
highest DV among the individual monitoring sites located in the
area.
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The 2015 ozone NAAQS is met at an EPA regulatory monitoring site
when the DV does not exceed 0.070 parts per million (ppm). For areas
classified as Marginal nonattainment for the 2015 ozone NAAQS, the
attainment date was August 3, 2021, except for the San Antonio, Texas
area that had an attainment date of September 24, 2021.\3\ Because the
DV is based on the three most recent, complete calendar years of data,
attainment must occur no later than December 31 of the year prior to
the attainment date (i.e., December 31, 2020, in the case of Marginal
nonattainment areas for the 2015 ozone NAAQS). As such, the EPA's
proposed determinations for each area are based upon the complete,
quality-assured, and certified ozone monitoring data from calendar
years 2018, 2019, and 2020.
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\3\ For general purposes, further references to the 2015 ozone
NAAQS Marginal area attainment date in this notice will indicate
August 3, 2021, except where otherwise indicated.
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This proposed action addresses 31 of the 40 nonattainment areas
that were classified as Marginal for the 2015 ozone NAAQS as of the
Marginal area attainment date of August 3, 2021.4 5 The
remaining nine areas will be addressed in separate actions, as follows:
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\4\ Two Marginal nonattainment areas have been redesignated to
maintenance for the 2015 ozone NAAQS. Columbus, Ohio (84 FR 43508,
August 21, 2019) and Door County, Wisconsin (85 FR 35377, June 10,
2020). See Section II.C of this notice for additional information
regarding EPA's designation and redesignation actions for Door
County.
\5\ In separate rulemakings, the EPA is proposing to redesignate
the following Marginal nonattainment areas to attainment for the
2015 ozone NAAQS based upon complete, quality-assured, and certified
ozone monitoring data from calendar years 2019, 2020, and 2021:
Manitowoc County, WI (87 FR 5438, February 1, 2022); Ohio portion of
Cincinnati, OH-KY (87 FR 7978, February 11, 2022); Door County-
Revised, WI (87 FR 12020, March 3, 2022); and Detroit, MI (87 FR
14210, March 14, 2022). If any of these areas is fully redesignated
prior to EPA finalizing this proposal, EPA would not finalize its
proposed action for the area.
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(1) The Imperial County, California area is not included in this
action. The EPA received the CAA section 179B(b) demonstration from the
California Air Resources Board on August 16, 2021, for the Imperial
County nonattainment area.\6\ Actions taken by the EPA on the
demonstration may affect a determination of attainment by the
attainment date for the area and at this time the EPA is still
assessing the merits of the state's submission.
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\6\ CAA section 179B(b) provides that where a state demonstrates
to the Administrator's satisfaction that an ozone nonattainment area
would have attained the NAAQS by the applicable attainment date but
for emissions emanating from outside the United States, that area
shall not be subject to the mandatory reclassification provision,
CAA section 181(b)(2). Note that the statute cites 42 U.S.C.
7511(a)(2), but that provision establishes ozone attainment
deadlines for severe areas under the 1-hour standard. The EPA has
long interpreted the citation in CAA section 179B(b) to be a
scrivener's error that was supposed to refer to 42 U.S.C.
7511(b)(2), which refers to consequences for failure to attain by
the attainment date.
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(2) The El Paso-Las Cruces, Texas-New Mexico, Marginal
nonattainment area is not included in this proposed action. On November
30, 2021, the EPA completed its response to the D.C. Circuit Court's
remand of certain air quality designations for the 2015 Ozone NAAQS by
expanding its initial designations for the Do[ntilde]a Ana County
(Sunland Park Area), New Mexico nonattainment area. The nonattainment
area now includes all of El Paso County, Texas, and has been renamed
the El Paso-Las Cruces, Texas-New Mexico nonattainment area, with an
attainment date of August 3, 2021, applying to the entire area. The
State of New Mexico submitted a CAA section 179B(b) demonstration for
the Do[ntilde]a Ana County (Sunland Park) nonattainment area on June 3,
2021. Texas Commission on Environmental Quality (TCEQ) submitted a CAA
section 179B(b) demonstration for the El Paso County, Texas,
nonattainment area on February 28, 2022. At this time, the EPA is still
assessing the merits of each state's submission and plans to address
the attainment status of the El Paso-Las Cruces, Texas-New Mexico
nonattainment area, including considering each submitted CAA section
179B(b) demonstrations from both states.
(3) The Las Vegas, Nevada nonattainment area is not included in
this action. The Clark County Department of Environment and
Sustainability (CCDES) has submitted a number of exceptional events
(EE) demonstrations for the Las Vegas, Nevada area. Specifically, on
July 1, 2021, the Clark County Department of Environment and
Sustainability (CCDES) submitted EE demonstrations for 2 days in 2018
and 6 days in 2020 with exceedances of the standard. On September 2,
2021, the CCDES submitted additional EE demonstrations for 13 days in
2018 and for 7 days in 2020. The EPA's concurrence decision on this
demonstration may affect determinations of attainment by the attainment
date for this area.\7\ The EE initial notification, EE demonstration,
and the EPA's response to the initial notification are provided in the
docket for this rulemaking.
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\7\ CAA section 319(b) defines an exceptional event as an event
that (i) affects air quality; (ii) is not reasonably controllable or
preventable; (iii) is an event caused by human activity that is
unlikely to recur at a particular location or a natural event; and
(iv) is determined by the Administrator through a process
established in regulation to be an exceptional event.
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(4) The Butte County, Calaveras County, San Luis Obispo, Sutter
Buttes, Tuolumne County, and Tuscan Buttes County nonattainment areas
in California are not included in this action. On September 3, 2021,
the California Air Resources Board (CARB) submitted EE demonstrations
for the San Luis Obispo area for five days with exceedances of the
standard in 2018, and on September 17, 2021, CARB submitted EE
demonstrations for multiple days in 2018 with exceedances of the
standard in the Calaveras County, Butte County, Tuolumne County, Sutter
Buttes, and Tuscan Buttes areas. Specifically, CARB submitted
demonstrations for eight exceedances in 2018 for the Calaveras County
area, 11 exceedances in 2018 for the Butte County area, 11 exceedances
in 2018 for the Tuolumne County area, 9 exceedances in 2018 for the
Sutter Buttes area, and 9 exceedances in 2018 for the Tuscan Buttes
area. In addition, on November 18, 2021, CARB submitted EE
demonstrations for multiple days in 2020 with exceedances of the
standard in the Tuolumne County and Sutter Buttes areas, and on
December 8, 2021, CARB submitted EE demonstrations for multiple days in
2020 with exceedances of the standard in the San Luis Obispo area.
Specifically, CARB submitted demonstrations for three exceedances in
2020 for the Tuolumne County area, two exceedances in 2020 for the
Sutter Buttes area, and eight exceedances in 2020 for the San Luis
Obispo area. The EPA's concurrence decision on these demonstrations may
affect determinations of attainment by the attainment date for these
areas. The EE initial notifications, EE demonstrations, and the EPA's
responses to the initial notifications are provided in the docket for
this rulemaking.
Table 1 provides a summary of the DVs and the EPA's proposed air
quality-based determinations for the 31 Marginal areas addressed in
this action. Several areas included in this proposed rule are also
addressed in a separate rulemaking to determine whether areas
classified as Serious for the 2008 ozone NAAQS attained the standard by
the applicable attainment date of July 20, 2021.\8\
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\8\ Includes the Chicago-Naperville, IL-IN-WI, Dallas-Fort
Worth, TX, Denver-Boulder-Greeley-Ft. Collins-Loveland, Colorado,
Greater Connecticut, Connecticut, and Houston-Galveston-Brazoria,
Texas areas.
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Table 1--2015 Ozone NAAQS Marginal Nonattainment Area Evaluation Summary
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Area failed to
attain 2015 NAAQS
but state requested
2015 NAAQS attained 2020 4th highest 1-year attainment
2015 NAAQS nonattainment area 2018-2020 DV by the marginal daily maximum 8-hr date extension
(ppm) attainment date average (ppm) based on 2020 4th
highest daily
maximum 8-hr
average <=0.070 ppm
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Allegan County, MI............... 0.073 Failed to Attain... 0.076.............. No.
Amador County, CA................ 0.069 Attained........... Not applicable..... Not applicable.
Atlanta, GA...................... 0.070 Attained........... Not applicable..... Not applicable.
Baltimore, MD.................... 0.072 Failed to Attain... 0.069.............. No.
Berrien County, MI............... 0.072 Failed to Attain... 0.078.............. No.
Chicago, IL-IN-WI................ 0.077 Failed to Attain... 0.079.............. No.
Cincinnati, OH-KY................ 0.074 Failed to Attain... 0.071.............. No.
Cleveland, OH.................... 0.074 Failed to Attain... 0.075.............. No.
Dallas-Fort Worth, TX............ 0.076 Failed to Attain... 0.077.............. No.
Denver Metro/North Front Range, 0.081 Failed to Attain... 0.087.............. No.
CO.
Detroit, MI...................... 0.072 Failed to Attain... 0.074.............. No.
Door County-Revised, WI (Rural 0.072 Failed to Attain... 0.075.............. No.
Transport Area (RTA)) *.
Greater Connecticut, CT.......... 0.073 Failed to Attain... 0.071.............. No.
Houston-Galveston-Brazoria, TX... 0.079 Failed to Attain... 0.075.............. No.
Louisville, KY-IN................ 0.072 Failed to Attain... 0.071.............. No.
Manitowoc County, WI............. 0.070 Attained........... Not applicable..... Not applicable.
Mariposa County, CA.............. 0.079 Failed to Attain... 0.091.............. No.
Milwaukee, WI.................... 0.071 Failed to Attain... 0.077.............. No.
Muskegon County, MI.............. 0.076 Failed to Attain... 0.080.............. No.
Northern Wasatch Front, UT **.... 0.077 Failed to Attain... 0. 080............. No.
Pechanga Band of Luise[ntilde]o 0.078 Failed to Attain... 0.084.............. No.
Mission Indians ***.
Philadelphia-Wilmington-Atlantic 0.074 Failed to Attain... 0.071.............. No.
City, PA-NJ-MD-DE.
Phoenix-Mesa, AZ................. 0.079 Failed to Attain... 0.087.............. No.
San Antonio, TX ****............. 0.072 Failed to Attain... 0.074.............. No.
San Francisco Bay, CA............ 0.069 Attained........... Not applicable..... Not applicable.
Sheboygan County, WI............. 0.075 Failed to Attain... 0.076.............. No.
Southern Wasatch Front, UT....... 0.069 Attained........... Not applicable..... Not applicable.
St. Louis, MO-IL................. 0.071 Failed to Attain... 0.074.............. No.
Uinta Basin, UT.................. 0.076 Failed to Attain... 0.066.............. Yes.
Washington, DC-MD-VA............. 0.071 Failed to Attain... 0.065.............. No.\9\
Yuma, AZ......................... 0.068 Attained........... Not applicable..... Not applicable.
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* Door County-Revised, Wisconsin, is an RTA and therefore will remain subject to Marginal area requirements if
the EPA finalizes its proposed determination of failure to timely attain and reclassification to Moderate. For
more information see Section II.C of this notice.
** On May 28, 2021, the State of Utah submitted a CAA section 179B demonstration for the Northern Wasatch Front
nonattainment area that EPA found does not meet the criteria for such a demonstration. For more information,
see Section II.C.1.b of this notice.
*** Concentrations listed are for the Temecula monitor (AQS ID 06-065-0016); quality assurance issues with the
data from the Pechanga monitor resulted in the 2018 data year not being appropriate for comparison to the
NAAQS, and an invalid 2020 DV per DV calculation requirements contained in 40 CFR part 50, Appendix U, section
4(b). Ozone data collected at the Temecula monitoring site was used in previous regulatory actions and deemed
representative of ozone conditions on the Pechanga Reservation. E.g., 80 FR 18120, April 3, 2015, at 18121-
18122 (final rule redesignating the Pechanga air quality planning area from nonattainment to attainment for
the 1997 ozone NAAQS).
**** On July 13, 2020, the State of Texas submitted a CAA section 179B demonstration for the San Antonio
nonattainment area that the EPA found does not meet the criteria for such a demonstration. For more
information, see Section II.C.1.b of this notice.
The data used to calculate both the 2018-2020 DVs and the 2020
fourth highest daily maximum 8-hour averages are provided in the
technical support document (TSD) which can be found in the docket for
this rulemaking.\10\
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\10\ ``Technical Support Document Regarding Ozone Monitoring
Data--Determinations of Attainment, 1-Year Attainment Date
Extensions, and Reclassifications for Marginal Areas under the 2015
8-Hour Ozone National Ambient Air Quality Standards (NAAQS),''
available in the docket for this rulemaking.
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The EPA proposes to find that the Atlanta, Georgia; Manitowoc
County, Wisconsin; Southern Wasatch Front, Utah; Amador County,
California; San Francisco Bay, California; and Yuma, Arizona Marginal
nonattainment areas attained by the attainment date based on the 2018-
2020 DVs presented in Table 1, which do not exceed 0.070 ppm. The EPA
is also proposing to grant a 1-year attainment date extension for the
Uinta Basin, Utah, nonattainment area (Section II.B of this notice).
Finally, the EPA is proposing to determine that 24 Marginal areas with
2018-2020 DVs greater than 0.070 ppm did not attain by their attainment
dates and do not qualify for a 1-year attainment date extension. If the
EPA determines that a nonattainment area classified as Marginal failed
to attain by the attainment date, CAA section 181(b)(2)(B) requires the
EPA to publish the identity of each such area in the Federal Register
no later than 6 months following the attainment date and identify the
reclassification level.
Furthermore, as required under CAA section 181(b)(2)(A), if the EPA
finalizes the determinations that these 24 areas failed to attain by
their attainment dates, they will be reclassified to Moderate by
operation of law. The reclassified areas will then be subject to the
Moderate area requirement to attain the 2015 ozone NAAQS as
expeditiously as practicable, but not later than August 3, 2024
(September 24, 2024, for the San Antonio, Texas, area).
Once reclassified as Moderate, the relevant states must submit to
the EPA
[[Page 21846]]
the SIP revisions for these areas that satisfy the statutory and
regulatory requirements applicable to Moderate areas \11\ established
in CAA section 182(b) and in the 2015 Ozone NAAQS SIP Requirements Rule
(see 83 FR 62998, December 6, 2018). The EPA proposes to establish
deadlines for submitting SIP revisions for these reclassified areas,
consistent with CAA section 182(i). As discussed in Section II.D. of
this notice, the EPA proposes that the new SIP revisions associated
with these reclassifications will be due to the EPA by no later than
January 1, 2023. Under the CAA and the Tribal Authority Rule (TAR),
tribes may, but are not required to, submit implementation plans to the
EPA for approval (see CAA section 301(d) and 40 CFR part 49).
Accordingly, for the Pechanga Band of Luise[ntilde]o Mission Indians
nonattainment area, the Pechanga Tribe would not be required to submit
any tribal implementation plan (TIP) revisions applicable to Moderate
areas established in CAA section 182(b) and in the 2015 Ozone NAAQS SIP
Requirements Rule. Tribes that are part of multi-jurisdictional
nonattainment areas are also not required to submit implementation plan
revisions applicable to Moderate areas.
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\11\ See Section II.C of this notice for additional information
regarding the Door County-Revised, Wisconsin, area.
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B. What is the background for the proposed actions?
On October 26, 2015, the EPA issued its final action to revise the
NAAQS for ozone to establish a new 8-hour standard (see 80 FR 65452,
October 26, 2015). In that action, the EPA promulgated identical
tighter primary and secondary ozone standards designed to protect
public health and welfare that specified an 8-hour ozone level of 0.070
ppm. Specifically, the standards require that the 3-year average of the
annual fourth highest daily maximum 8-hour average ozone concentration
may not exceed 0.070 ppm.
Effective on August 3, 2018, the EPA designated 52 areas throughout
the country as nonattainment for the 2015 ozone NAAQS (see 83 FR 25776,
June 4, 2018). The EPA later designated the San Antonio, Texas, area as
a 2015 ozone NAAQS nonattainment area effective September 24, 2018 (see
83 FR 35136, July 25, 2018). In a separate action, the EPA assigned
classification thresholds and attainment dates based on the severity of
an area's ozone problem, determined by the area's DV (see 83 FR 10376,
May 8, 2018). The EPA established the attainment date for Marginal and
Moderate nonattainment areas as 3 years and 6 years, respectively, from
the effective date of the final designations. Thus, the attainment date
for Marginal nonattainment areas for the 2015 ozone NAAQS was August 3,
2021, and the attainment date for Moderate areas is August 3, 2024
(September 24, 2021, and September 24, 2024, respectively, for the San
Antonio, Texas, area).
C. What is the statutory authority for the proposed actions?
The statutory authority for the actions proposed in this document
is provided by the CAA, as amended (42 U.S.C. 7401 et seq.). Relevant
portions of the CAA include, but are not necessarily limited to,
sections 181(a)(5), 181(b)(2) and 182(i).
CAA section 107(d) provides that when the EPA establishes or
revises a NAAQS, the agency must designate areas of the country as
nonattainment, attainment, or unclassifiable based on whether an area
is not meeting (or is contributing to air quality in a nearby area that
is not meeting) the NAAQS, meeting the NAAQS, or cannot be classified
as meeting or not meeting the NAAQS, respectively. Subpart 2 of part D
of title I of the CAA governs the classification, state planning, and
emissions control requirements for any areas designated as
nonattainment for a revised primary ozone NAAQS. In particular, CAA
section 181(a)(1) requires each area designated as nonattainment for a
revised ozone NAAQS to be classified at the same time as the area is
designated based on the extent of the ozone problem in the area (as
determined based on the area's DV). Classifications for ozone
nonattainment areas range from ``Marginal'' to ``Extreme.'' CAA section
182 provides the specific attainment planning and additional
requirements that apply to each ozone nonattainment area based on its
classification. CAA section 182, as interpreted by the EPA's
implementing regulations at 40 CFR 51.1308 through 51.1317, also
establishes the timeframes by which air agencies must submit and
implement SIP revisions to satisfy the applicable attainment planning
elements, and the timeframes by which nonattainment areas must attain
the 2015 ozone NAAQS. For reclassified areas, CAA section 182(i)
provides that the Administrator may adjust applicable deadlines other
than attainment dates if such adjustment is necessary or appropriate to
assure consistency among the required submissions. Therefore, the EPA
is proposing in Section II.D of this notice to adjust the SIP revision
and implementation deadlines for newly reclassified Moderate
nonattainment areas.
Section 181(b)(2)(A) of the CAA requires that within 6 months
following the applicable attainment date, the EPA shall determine
whether an ozone nonattainment area attained the ozone standard based
on the area's DV as of that date. Upon application by any state, the
EPA may grant a 1-year extension of the attainment date for qualifying
areas (Section II.B of this notice). In the event an area fails to
attain the ozone NAAQS by the applicable attainment date and is not
granted a 1-year attainment date extension, CAA section 181(b)(2)(A)
requires the EPA to make the determination that an ozone nonattainment
area failed to attain the ozone standard by the applicable attainment
date, and requires the area to be reclassified by operation of law to
the higher of: (1) The next higher classification for the area, or (2)
the classification applicable to the area's DV as of the determination
of failure to attain.\12\ Section 181(b)(2)(B) of the CAA requires the
EPA to publish the determination of failure to attain and accompanying
reclassification in the Federal Register no later than 6 months after
the attainment date, which in the case of the Marginal nonattainment
areas considered in this proposal was February 3, 2022.
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\12\ All nonattainment areas named in this notice that failed to
attain by the attainment date would be classified to the next higher
classification, Moderate. None of the affected areas has a DV that
would otherwise place an area in a higher classification (i.e., see
CAA section 181(b)(2)(A) reference to Extreme areas).
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Once an area is reclassified, each state that contains a
reclassified area is required to submit certain SIP revisions in
accordance with its more stringent classification. The SIP revisions
are intended to, among other things, demonstrate how the area will
attain the NAAQS as expeditiously as practicable, but no later than
August 3, 2024, the Moderate area attainment date for the 2015 ozone
NAAQS (September 24, 2024, for the San Antonio, Texas, area). Per CAA
section 182(i), a state with a reclassified ozone nonattainment area
must submit the applicable attainment plan requirements ``according to
the schedules prescribed in connection with such requirements'' in CAA
section 182(b) for Moderate areas, but the EPA ``may adjust applicable
deadlines (other than attainment dates) to the extent such adjustment
is necessary or appropriate to assure consistency among the required
submissions.'' In Section II.D of this notice, the EPA explains its
proposal to adjust such deadlines.
[[Page 21847]]
D. How does the EPA determine whether an area has attained the 2015
ozone standard?
Under the EPA regulations at 40 CFR part 50, appendix U, the 2015
ozone NAAQS is attained at a site when the 3-year average of the annual
fourth highest daily maximum 8-hour average ambient air quality ozone
concentration (i.e., DV) does not exceed 0.070 ppm. When the DV does
not exceed 0.070 ppm at each ambient air quality monitoring site within
the area, the area is deemed to be attaining the ozone NAAQS. The
rounding convention in Appendix P dictates that concentrations shall be
reported in ``ppm'' to the third decimal place, with additional digits
to the right being truncated. Thus, a computed 3-year average ozone
concentration of 0.071 ppm is greater than 0.070 ppm and would exceed
the standard, but a DV of 0.0709 is truncated to 0.070 and attains the
2015 ozone NAAQS.
The EPA's determination of attainment is based upon data that have
been collected and quality-assured in accordance with 40 CFR part 58
and recorded in the EPA's Air Quality System (AQS) database.\13\
Ambient air quality monitoring data for the 3-year period preceding the
attainment date (2018-2020 for the 2015 ozone NAAQS Marginal areas)
must meet the data completeness requirements in Appendix U.\14\ The
completeness requirements are met for the 3-year period at a monitoring
site if daily maximum 8-hour average concentrations of ozone are
available for at least 90 percent of the days within the ozone
monitoring season, on average, for the 3-year period, and no single
year has less than 75 percent data completeness.
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\13\ The EPA maintains the AQS, a database that contains ambient
air pollution data collected by the EPA, state, local, and tribal
air pollution control agencies. The AQS also contains meteorological
data, descriptive information about each monitoring station
(including its geographic location and its operator) and data
quality assurance/quality control information. The AQS data is used
to (1) assess air quality, (2) assist in attainment/non-attainment
designations, (3) evaluate SIPs for non-attainment areas, (4)
perform modeling for permit review analysis, and (5) prepare reports
for Congress as mandated by the CAA. Access is through the website
at https://www.epa.gov/aqs.
\14\ See 40 CFR part 50, appendix U, section 4(b).
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II. What is the EPA proposing and what is the rationale?
The EPA is proposing this action to fulfill its statutory
obligation under CAA section 181(b)(2) to determine whether 31 Marginal
ozone nonattainment areas attained the 2015 ozone NAAQS as of the
attainment date of August 3, 2021 (September 24, 2021, for the San
Antonio, Texas, area). The EPA evaluated air quality monitoring data
submitted by the appropriate state, local, and tribal air agencies to
determine the attainment status of the 31 areas as of their applicable
Marginal area attainment dates. This section describes the separate
determinations and actions being proposed in this document.
A. Determinations of Attainment by the Attainment Date
The EPA is proposing to determine, in accordance with CAA section
181(b)(2)(A) and the provisions of the 2015 Ozone NAAQS SIP
Requirements Rule (40 CFR 51.1303), that the Atlanta, Georgia;
Manitowoc County, Wisconsin; Southern Wasatch Front, Utah; Amador
County, California; San Francisco Bay, California; and Yuma, Arizona
areas attained the 2015 ozone NAAQS by the Marginal area attainment
date of August 3, 2021, based on their 2018-2020 DV (Table 1).
These proposed determinations of attainment by the attainment date
do not constitute formal redesignation to attainment as provided for
under CAA section 107(d)(3). Redesignations to attainment require,
among other things, that the states responsible for ensuring attainment
and maintenance of the NAAQS have met the applicable requirements under
CAA section 110 and part D, and to submit to EPA for approval a
maintenance plan to ensure continued attainment of the standard for 10
years following redesignation, as provided under CAA section 175A.
The EPA requests comment on these proposed determinations of
attainment by the applicable attainment date for the Atlanta, Georgia;
Manitowoc County, Wisconsin; Southern Wasatch Front, Utah; Amador
County, California; San Francisco Bay, California; and Yuma, Arizona
areas. Further technical analysis supporting these proposed
determinations are in the TSD for this proposed rule, which is
available in the docket for this rulemaking.
B. Extension of Marginal Area Attainment Date
1. Summary of Proposed Action
By way of letter dated March 29, 2021, the Utah Division of Air
Quality (UDAQ) requested an extension of the Uinta Basin area Marginal
area attainment date; the letter is provided in the docket for this
rulemaking.\15\ We propose to grant UDAQ's request and extend the
August 3, 2021, Marginal area attainment date to August 3, 2022, for
the Uinta Basin area, based on our finding that the state meets the two
criteria under CAA section 181(a)(5) as interpreted by the EPA in 40
CFR 51.1307 and that no other facts or circumstances compel the EPA
Administrator to consider information beyond the statutory criteria--
i.e., (1) the state has complied with all requirements and commitments
pertaining to the area in the applicable implementation plan; and (2)
for a first attainment date extension, an area's fourth highest daily
maximum 8-hour value for the attainment year must not exceed the level
of the standard.\16\
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\15\ Bird, Bryce, Director, UDAQ. ``Request for One-year
Extension of the 2015 Ozone National Ambient Air Quality Standard
Attainment Date for the Uinta Basin Marginal Nonattainment Area.''
March 29, 2021.
\16\ The attainment year is the calendar year corresponding with
the final ozone season for determining attainment; ``attainment year
ozone season'' is defined as the ozone season immediately preceding
a nonattainment area's maximum attainment date (see 40 CFR
51.1300(g)).
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2. Proposed Action To Grant the Requested 1-Year Attainment Date
Extension
Section 181(a)(5) of the CAA provides the EPA the discretion (i.e.,
``the Administrator may'') to extend an area's applicable attainment
date by 1 additional year upon application by any state if the state
meets the two criteria under CAA section 181(a)(5) as interpreted by
the EPA in 40 CFR 51.1307.
With respect to the first criterion, the EPA interprets the
provision as having been satisfied if a state can demonstrate that it
is in compliance with its approved implementation plan. See Delaware
Dept. of Nat. Resources and Envtl. Control v. EPA, 895 F.3d 90, 101
(D.C. Cir. 2018) (holding that the CAA requires only that an applying
state with jurisdiction over a nonattainment area comply with the
requirements in its applicable SIP, not every requirement of the Act);
see also Vigil v. Leavitt, 381 F.3d 826, 846 (9th Cir. 2004). A state
may meet this requirement by certifying its compliance, and in the
absence of such certification, the EPA may make a determination as to
whether the criterion has been met. See Delaware, 895 F.3d at 101-102.
With respect to the second criterion, the EPA has interpreted CAA
section 181(a)(5)(B)'s exceedance-based air quality requirement of the
extension criteria for purposes of a concentration-based standard like
the 2015 8-hour ozone NAAQS (see 40 CFR 51.1307). For purposes of the
2015 ozone NAAQS, the EPA has interpreted the air quality criterion of
CAA section 181(a)(5)(B) to mean that an area's fourth highest daily
[[Page 21848]]
maximum 8-hour value for the attainment year must not exceed the level
of the standard (0.070 ppm).\17\
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\17\ See 40 CFR 51.1307 pertaining to determining eligibility
under CAA section 181(a)(5)(B) for the first and the second 1-year
attainment date extensions for the 2015 ozone NAAQS.
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We have evaluated the information submitted by UDAQ and propose to
determine that the area meets the two necessary statutory criteria for
the 1-year extension under CAA section 181(a)(5) and 40 CFR
51.1307(a)(1), and that no other facts or circumstances compel the EPA
Administrator to consider information beyond the statutory criteria.
UDAQ has certified that they have complied with all requirements and
commitments pertaining to these areas in their approved implementation
plan. Additionally, the fourth highest daily maximum 8-hour average
ozone concentration recorded during 2020 for the Uinta Basin was 0.066
ppm, well below the level of the 2015 ozone NAAQS of 0.070 ppm (Table 1
of this notice). The EPA proposes to grant the requested 1-year
extension of the August 3, 2021, Marginal area attainment date for the
Uinta Basin area.
If we finalize this proposal, on the effective date of the final
action the attainment date for the Uinta Basin area would be extended
to August 3, 2022. The area would then remain classified as Marginal
for the 2015 ozone NAAQS until the EPA either made a determination that
the area had failed to attain the NAAQS by the new attainment date,
granted a second 1-year attainment date extension, or redesignated the
area to attainment. The EPA solicits comments on our proposal to grant
the requested 1-year attainment date extension for the Uinta Basin
Marginal nonattainment area, and whether there are any particular
circumstances, such as disproportionate environmental exposure or
burdens, that the EPA should consider before granting the request.
3. Additional Information
In evaluating Utah's request for a 1-year extension of the Marginal
attainment date, the EPA considered other facts and circumstances, and
we propose to find that these considerations do not weigh against our
proposal to grant Utah's request.
i. Ute Tribe Support for 1-Year Extension
In a letter dated May 25, 2021, the Ute Indian Tribe also requested
an attainment date extension for the area.\18\ This letter is provided
in the docket for this rulemaking. The EPA's proposed extension is
based on the request from UDAQ for the entire Uinta Basin area, but we
note the tribe's independent support for an attainment date extension.
In accordance with the EPA Policy on Consultation and Coordination with
Indian Tribes, the EPA offered an opportunity for consultation to seek
the Tribe's input during the development of this notice.\19\ \20\ The
Ute Indian Tribe met with the EPA on October 6, 2021. In this meeting
tribal leadership reiterated their support for the emissions controls
in EPA's proposed Federal Implementation Plan (FIP) for Managing
Emissions from Oil and Natural Gas Sources on Indian Country Lands
within the Uintah and Ouray (U&O) Indian Reservation in Utah (U&O FIP)
\21\ as a way to make regulations related to oil and natural gas more
consistent across the basin and urged EPA to finalize the U&O FIP.
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\18\ Chapoose, Shaun, Chairman, Ute Indian Tribe Business
Committee. ``Request for One Year Extension of the 2015 Ozone
National Ambient Air Quality Standard Attainment Date for the Uinta
Basin Marginal Nonattainment Area.'' May 25, 2021.
\19\ Daly, Carl, Acting Director, Air and Radiation Division,
U.S. EPA Region 8. ``Request for One-Year Extension of the 2015
Ozone National Ambient Air Quality Standard Attainment Date for the
Uinta Basin Marginal Nonattainment Area and Consultation on the
Draft Proposal for the National Determination of Attainment by the
Attainment Date.'' September 10, 2021.
\20\ See EPA Policy on Consultation and Coordination with Indian
Tribes, May 4, 2011, https://www.epa.gov/sites/default/files/2013-08/documents/cons-and-coord-with-indian-tribes-policy.pdf.
\21\ ``Proposed Rule: Federal Implementation Plan for Managing
Emissions From Oil and Natural Gas Sources on Indian Country Lands
Within the Uintah and Ouray Indian Reservation in Utah'' (85 FR
3492, January 21, 2020).
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ii. FIP for Managing Emissions From Oil and Natural Gas Sources on
Indian Country Lands Within the U&O Indian Reservation in Utah (U&O
FIP)
The proposed U&O FIP would require new, modified, and existing oil
and natural gas (O&NG) sources on Indian country lands within the U&O
Reservation to implement new control requirements. While the FIP is not
designed to bring the area into attainment, the EPA expects these
emission limits to reduce ozone precursor emissions and improve air
quality in the area. The EPA proposed the U&O FIP in January 2020 and
is working to finalize it. Most VOC emissions within the Basin are from
existing O&NG activity, and most of those O&NG emissions are from
existing sources on the U&O Indian Reservation and in the nonattainment
area.\22\ VOC emissions control requirements for existing O&NG sources
currently exist in areas of the Uinta Basin under Utah jurisdiction,
but do not exist in the U&O Indian Reservation where most sources are
uncontrolled. To this end, we expect the new control requirements in
the final U&O FIP to make a meaningful improvement in air quality and
address winter ozone exceedances on the reservation, and in the
nonattainment area and larger Uinta Basin region.
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\22\ For the proposed FIP, the EPA estimated, using 2014
emissions inventory data, that of the approximately 10,400
individual existing active O&NG wells in the Uinta Basin, over 7,900
wells, or about 76 percent, were on Indian country lands within the
U&O Reservation. Over 6,700 individual O&NG (primarily well sites)
were processing fluids from those wells. Additionally, EPA estimated
that the majority of the O&NG sources were uncontrolled and over
2,100 of those sources would be subject to the substantive VOC
emissions control requirements of a final and effective U&O FIP (see
85 FR 3500-3501 and 3512). The draft final FIP is being analyzed
using 2017 emissions inventory data, so the impacts of the final
rule may differ from the numbers of sources used to analyze the
proposed FIP.
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iii. Air Quality Trends
As shown in Table 1 of this notice, the Uinta Basin area did not
attain the 2015 ozone NAAQS by the Marginal area attainment date of
August 3, 2021, based on its final 2018-2020 DV of 0.076 ppm. The Uinta
Basin area meets the specific air quality criteria for an initial 1-
year extension under 40 CFR 51.1307(a)(1) with an attainment year
(2020) fourth highest daily maximum 8-hour average concentration of
0.066 ppm. Preliminary 2021 ozone monitoring data indicate that the
area may not attain the 2015 ozone NAAQS by the extended August 3,
2022, attainment date; \23\ however, it appears that the area could
meet the air quality criteria for a second 1-year extension.\24\
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\23\ As of February 9, 2022, the Uinta Basin area's preliminary
2019-2021 DV was 0.078 ppm and the preliminary 2021 fourth highest
daily maximum 8-hour value was 0.072 ppm, available at https://www.epa.gov/outdoor-air-quality-data/download-daily-data.
\24\ To qualify for a second 1-year extension, an area's fourth
highest daily maximum 8-hour value, averaged over both the original
attainment year and the first extension year, must be 0.070 ppm or
less (40 CFR 51.1307(a)(2)). If the preliminary 2021 ozone data are
certified, then the fourth highest daily maximum 8-hour value,
averaged over 2020 and 2021, would be 0.069 ppm.
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The Uinta Basin nonattainment area has a wintertime ozone problem,
which means that violating ozone concentrations are driven by local
ozone precursor emissions from existing O&NG sources and are dependent
on stagnant winter conditions associated with snow cover and strong
temperature inversions. These winter meteorological conditions occur
periodically,\25\ as
[[Page 21849]]
evidenced by elevated fourth highest daily maximum average ozone 8-hour
concentrations of 0.103 ppm (2017) and 0.098 ppm (2019), which were
measured in Indian country near Ouray, Utah.\26\ The Uinta Basin area
could potentially attain the 2015 ozone standard by a second extended
attainment date (August 3, 2023) if the fourth highest daily maximum 8-
hour average concentrations for 2021 and 2022 remain consistent with
the final value for 2020 (0.066 ppm), e.g., 0.072 ppm (2021
preliminary) and 0.072 ppm (2022 hypothetical) that, when averaged with
the 2020 value, would result in an attaining 2020-2022 DV of 0.070 ppm.
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\25\ Some winters may have one or more multi-day episodes with
conducive meteorological conditions while in other years these
conditions may not occur at all.
\26\ We use the fourth highest daily maximum average ozone 8-
hour concentrations here for illustration, but these values, by
definition, are not the highest values recorded for a monitoring
site. Values presented are for AQS Site Number 490472003; see Table
5 of ``o3_designvalues_2017_2019_final_05_26_20.xlsx'' available at
https://www.epa.gov/air-trends/air-quality-design-values.
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iv. Environmental Justice
Where the statute has provided the Administrator a discretionary
authority in the attainment date extension provisions, we think it is
reasonable to consider the existing environmental burden in the area in
question, and what impact our action may have on that burden.
Consideration of the existing pollution burden already borne by the
population that will be impacted by our action is a relevant factor of
reasoned decisionmaking. The EPA therefore performed screening analyses
to better understand the pollution burdens borne by the population that
will be affected by the requested extension in order to fully
understand the potential public health ramifications of the extension.
That analysis did not indicate disproportionate pollution exposure or
burdens for populations in the Uinta Basin area compared to the wider
U.S. population.
The EPA's inquiry is also consistent with multiple executive orders
addressing environmental justice as well as an April 7, 2021, directive
by the EPA Administrator.\27\ \28\ In that directive, the Administrator
instructed all EPA offices to take immediate and affirmative steps to
incorporate EJ considerations into their work, including assessing
impacts to pollution-burdened, underserved, and Tribal communities in
regulatory development processes and considering regulatory options to
maximize benefits to these communities.\29\
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\27\ Message from the EPA Administrator, Our Commitment to
Environmental Justice (issued April 7, 2021) at https://www.epa.gov/sites/production/files/2021-04/documents/regan-messageoncommitmenttoenvironmentaljustice-april072021.pdf.
\28\ See E.O. 13985 (``Executive Order on Advancing Racial
Equity and Support for Underserved Communities Through the Federal
Government,'' issued January 20, 2021, available at https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-advancing-racial-equity-and-support-for-underserved-communities-through-the-federal-government/ and 86 FR 7009 (January
25, 2021)) and E.O. 12898 (``Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations,'' issued February 11, 1994, available at https://www.epa.gov/sites/production/files/2015-02/documents/exec_order_12898.pdf and 59 FR 7629 (February 16, 1994)).
\29\ The EPA has defined environmental justice as ``the fair
treatment and meaningful involvement of all people regardless of
race, color, national origin, or income with respect to the
development, implementation and enforcement of environmental laws,
regulations and policies.'' See https://www.epa.gov/environmentaljustice/learn-about-environmental-justice.
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Screening Analyses
To conduct the screening analyses, we used EJSCREEN, an EJ mapping
and screening tool that provides EPA with a nationally consistent
dataset and approach for combining various environmental and
demographic indicators.\30\ The EJSCREEN tool presents these indicators
at a Census block group (CBG) level or a larger user-specified
``buffer'' area that covers multiple CBGs.\31\ An individual CBG is a
cluster of contiguous blocks within the same census tract and generally
contains between 600 and 3,000 people. EJSCREEN is not a tool for
performing in-depth risk analysis, but is instead a screening tool that
provides an initial representation of indicators related to EJ. We also
examined ozone design value data for the Uinta Basin area.\32\
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\30\ The EJ SCREEN tool is available at https://www.epa.gov/ejscreen.
\31\ See https://www.census.gov/programs-surveys/geography/about/glossary.html.
\32\ The ozone metric in EJSCREEN represents the summer seasonal
average of daily maximum 8-hour concentrations (parts per billion,
ppb) and was not used in our EJ analyses because this metric is not
informative of peak ozone concentrations for this area, which are
instead represented here by the design value metric. Ozone design
values are the basis of attainment determinations in this proposed
action, and we consider it a more informative indicator of pollution
burden from ozone in the Uinta Basin area.
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With respect to the Uinta Basin, the EPA conducted an EJSCREEN
analysis for the two counties (Duchesne and Uintah) that encompass the
entire Uinta Basin nonattainment area, as well as analyses of five-
kilometer buffers around the five monitors inside the nonattainment
area that showed a fourth highest daily maximum value that exceeded the
ozone NAAQS between 2018 and 2020.\33\ The results of our screening
analysis did not indicate disproportionate exposure or burdens with
respect to the non-ozone environmental indicators assessed in
EJSCREEN,\34\ either between the monitor site buffer areas and the 2-
county (Duchesne and Uintah) area, or relative to the U.S. as a whole.
(The full results of our analyses are provided in the docket for this
rulemaking.)
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\33\ AQS Site IDs: 49-013-0002, 49-013-7011, 49-047-2002, 49-
047-2003, 49-047-7022.
\34\ EJSCREEN examines multiple environmental indicators
including, e.g., particulate matter, traffic proximity and volume,
lead paint in housing, and proximity scores for Superfund, RMP and
hazardous waste facilities.
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The EPA considered the information described above in evaluating
Utah's request for a 1-year extension of the Marginal attainment date,
and we propose to find that this information does not weigh against our
proposal to grant Utah's request. Again, we seek comment on our
proposal to grant the attainment date extension request for the Uinta
Basin, Utah, 2015 ozone NAAQS nonattainment area.
C. Determinations of Failure to Attain and Reclassification
The EPA is proposing to determine that 24 Marginal nonattainment
areas failed to attain the 2015 ozone NAAQS by the attainment date of
August 3, 2021 (September 24, 2021, for the San Antonio area). The 24
areas are: Allegan County, Michigan; Baltimore, Maryland; Berrien
County, Michigan; Chicago, IL-IN-WI; Cincinnati, OH-KY; Cleveland,
Ohio; Dallas-Fort Worth, Texas; Denver Metro/North Front Range,
Colorado; Detroit, Michigan; Door County-Revised, Wisconsin; Greater
Connecticut, Connecticut; Houston-Galveston-Brazoria, Texas;
Louisville, KY-IN; Mariposa, California; Milwaukee, Wisconsin; Muskegon
County, Michigan; North Wasatch Front, Utah; Pechanga Band of
Luise[ntilde]o Mission Indians; Philadelphia-Wilmington-Atlantic City,
PA-NJ-MD-DE; Phoenix-Mesa, Arizona; San Antonio, Texas; Sheboygan
County, Wisconsin; St. Louis, Missouri; and Washington DC-MD-VA. These
areas are not eligible for a 1-year attainment date extension and
because they do not meet the extension criteria under CAA section
181(a)(5) as interpreted by the EPA in 40 CFR 51.1307. The areas' ozone
DVs for 2018-2020 are shown in Table 1.
We note that the State of Texas and the State of Utah submitted CAA
section 179B demonstrations for the San Antonio and Northern Wasatch
Front areas, respectively. In this action, the EPA is proposing to
disapprove these CAA section 179B demonstrations and to determine that
these areas failed to attain. The basis for the proposed
[[Page 21850]]
disapprovals is explained in more detail in Section II.C.1 of this
notice.
If we finalize our action as proposed, each of these areas will be
reclassified as Moderate nonattainment for the 2015 ozone NAAQS, the
next higher classification, as provided under CAA section
181(b)(2)(A)(i) and codified at 40 CFR 51.1303. These areas would then
be required to attain the standard ``as expeditiously as practicable''
but no later than 6 years after the initial designation as
nonattainment, which in this case would be no later than August 3, 2024
(September 24, 2024, for the San Antonio, Texas, area). If an area
attains the 2015 ozone NAAQS, the relevant state may seek a Clean Data
Determination, under which certain attainment planning requirements for
the area would be suspended under 40 CFR 51.1318. If an area meets all
the other applicable statutory criteria, the state with an attaining
nonattainment area could also seek a redesignation to attainment.\35\
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\35\ The EPA's Clean Data Policy, as codified for the 2015 ozone
NAAQS at 40 CFR 51.1318, suspends the requirements for states to
submit certain attainment planning SIPs such as the attainment
demonstrations, including RACM, RFP, and contingency measures for so
long as an area continues to attain the standard.
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On July 14, 2021, the EPA finalized the Revised Air Quality
Designations for the 2015 Ozone National Ambient Air Quality Standards
action which expanded the boundaries of the Door County, Wisconsin,
nonattainment area (see 86 FR 31438, 31444, July 14, 2021). We
recognize that the original Door County area (comprising only Newport
State Park) was redesignated to attainment in 2020 (see 85 FR 35377,
June 10, 2020), prior to the EPA revising the boundaries of the
nonattainment area to respond to the court's remand in Clean Wisconsin
v. EPA, 964 F.3d 1145 (D.C. Cir. 2020). Given the different
implementation deadlines for the different portions of Door County, the
EPA has labeled the original area as ``Door County, WI'' and the
expanded area as ``Door County-Revised, WI'' in the amended 40 CFR part
81 tables for the revised designations. In this current action, the EPA
is proposing to reclassify the Door County-Revised, Wisconsin, area
from Marginal to Moderate for the 2015 ozone NAAQS; the EPA is not
proposing any action related to the Door County, Wisconsin, area
because it is no longer subject to the attainment determination
requirements of CAA section 181(b)(2) due to the fact that it has been
redesignated to attainment (i.e., it is a maintenance area for the 2008
ozone NAAQS). However, because the Door County-Revised, Wisconsin, area
is also a Rural Transport Area (RTA) under CAA section 182(h), and the
EPA does not have information indicating that the bases for treating
the Door County-Revised, Wisconsin, area as an RTA under CAA section
182(h) have changed, Wisconsin would not be required to submit Moderate
area SIP revisions for the area, if this proposal is finalized.\36,37\
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\36\ Section 182(h) of the CAA allows the EPA to determine that
a designated nonattainment area can be treated as an RTA if: the
area does not contain emission sources that make significant
contribution to monitored ozone concentration in the area or other
areas; and the area does not include and is not adjacent to a
Metropolitan Statistical Area. The General Preamble further states
that ``Any RTA that fails to meet the Marginal area attainment
deadlines is subject to bump-up to the appropriate higher
nonattainment status. However, if the area still qualifies as an
RTA, although the area will be subject to the attainment date for
the higher classification, it remains subject only to the submittal
and implementation requirements for Marginal areas. If it is found
that the area no longer qualifies as an RTA, the area will be
treated as the higher classified area for SIP requirements as
well.'' (57 FR 13498, April 16, 1992).
\37\ In a separate rulemaking, the EPA is proposing to
redesignate the Door County-Revised, WI Marginal nonattainment area
to attainment for the 2015 ozone NAAQS based upon complete, quality-
assured, and certified ozone monitoring data from calendar years
2019, 2020, and 2021 (87 FR 12020, March 3, 2022). If this area is
fully redesignated prior to EPA finalizing this proposal, EPA would
not finalize its proposed action for the area.
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The EPA requests comment on our proposal to determine that these 24
nonattainment areas did not attain the 2015 ozone NAAQS by the Marginal
area attainment date.
1. International Transport and Requirements for CAA Section 179B
CAA section 179B(b) provides that where a state demonstrates to the
Administrator's satisfaction that an ozone nonattainment area would
have attained the NAAQS by the applicable attainment date but for
emissions emanating from outside the United States, that area shall not
be subject to the mandatory reclassification provision, CAA section
181(b)(2). The State of Texas submitted a CAA section 179B
demonstration for the San Antonio nonattainment area on July 13, 2020.
Additionally, the State of Utah submitted a CAA section 179B
demonstration for the Northern Wasatch Front nonattainment area on May
28, 2021. As described in this subsection, the EPA is proposing to
disapprove the demonstrations for San Antonio and Northern Wasatch
Front, resulting in the proposed determinations that both areas failed
to timely attain the 2015 ozone NAAQS discussed previously in this
section.
a. Background for the Proposed Actions
Anthropogenic emission sources outside of the U.S. can affect to
varying degrees the ability of some air agencies to attain and maintain
the 2015 ozone NAAQS in areas within their jurisdiction. In a
nonattainment area affected by international emissions, an air agency
may elect under CAA section 179B \38\ to develop and submit to the EPA
a demonstration intended to show that a nonattainment area would
attain, or would have attained, the relevant NAAQS by the applicable
statutory attainment date ``but for'' emissions emanating from outside
the U.S. Under CAA section 179B, the EPA evaluates such demonstrations,
and if it agrees with the air agency's demonstration, the EPA considers
the impacts of international emissions in taking specific regulatory
actions.
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\38\ All references to CAA section 179B are to 42 U.S.C. 7509a.
International border areas, as added Public Law 101-549, title VIII,
Sec. 818, 104 Stat. 2697 (November 15, 1990). See the docket for
this rulemaking for the full statutory text.
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CAA section 179B provides the EPA with authority to consider
impacts from international emissions in two contexts: (1) A
``prospective'' state demonstration submitted as part of an attainment
plan, which the EPA considers when determining whether the SIP
adequately demonstrates that a nonattainment area will attain the NAAQS
by its future attainment date (see CAA section 179B(a)); or (2) a
``retrospective'' state demonstration, which the EPA considers after
the attainment date in determining whether a nonattainment area
attained the NAAQS by the attainment date (see CAA section 179B(b)-
(d)).
First, CAA section 179B(a) provides that, ``[N]otwithstanding any
other provision of law, an implementation plan or plan revision
required under this chapter shall be approved by the Administrator if
(1) such plan or revision meets all the requirements applicable to it .
. . other than a requirement that such plan or revision demonstrate
attainment and maintenance of the relevant national ambient air quality
standards by the attainment date specified under the applicable
provision of this chapter, or in a regulation promulgated under such
provision, and (2) the submitting state establishes to the satisfaction
of the Administrator that the implementation plan of such state would
be adequate to attain and maintain the relevant national ambient air
quality standards by the attainment date . . . but for emissions
emanating from outside of the United States,'' (emphasis added). The
[[Page 21851]]
EPA refers to CAA section 179B(a) demonstrations as ``prospective''
demonstrations because they are intended to assess future air quality,
taking into consideration the impact of international emissions. Thus,
if EPA approves a prospective demonstration, the state is relieved from
the requirement to submit to the EPA a demonstration showing that the
nonattainment area will attain the NAAQS by the attainment date.\39\
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\39\ Section 182(a) of the CAA, which describes nonattainment
area requirements for ozone Marginal areas, states that the
requirements of section 182(a) ``shall apply in lieu of any
requirement that the State submit a demonstration that the
applicable implementation plan provides for attainment of the ozone
standard by the applicable attainment date in any Marginal Area.''
In other words, there is no prospective relief that can be granted
by the EPA under section 179B(a) for ozone nonattainment areas
classified as Marginal.
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Second, CAA section 179B(b) provides that, for ozone nonattainment
areas, ``[n]otwithstanding any other provision of law, any State that
establishes to the satisfaction of the Administrator that . . . such
State would have attained the national ambient air quality standard . .
. by the applicable attainment date but for emissions emanating from
outside of the United States,'' (emphasis added) shall not be subject
to reclassification to a higher classification category by operation of
law, as otherwise required in CAA section 181(b)(2).\40\ The EPA refers
to demonstrations developed under CAA section 179B(b) as
``retrospective'' demonstrations because they involve analyses of past
air quality (e.g., air quality data from the years to be evaluated for
determining whether an area attained by the attainment date). Thus, an
EPA-approved retrospective demonstration provides relief from
reclassification that would have resulted from the EPA determining that
the area failed to attain the NAAQS by the relevant attainment date.
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\40\ The EPA's longstanding view is that CAA section 179B(b)
contains an erroneous reference to section 181(a)(2), and that
Congress actually intended to refer here to section 181(b)(2), which
addresses reclassification requirements for ozone nonattainment
areas. See ``State Implementation Plans; General Preamble for the
Implementation of Title I of the Clean Air Act Amendments of 1990,''
57 FR 13498, 13569 n.41 (April 16, 1992).
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Irrespective of developing and submitting a prospective or
retrospective demonstration, states still have to meet all
nonattainment area requirements applicable for the relevant NAAQS and
area classification. The 2015 ozone NAAQS SIP Requirements Rule did not
include regulatory requirements specific to CAA section 179B but did
provide guidance on certain points. In the rule, the EPA confirmed
that: (1) Only areas classified Moderate and higher must show that they
have implemented reasonably available control measures and reasonably
available control technology (RACM/RACT); (2) CAA section 179B
demonstrations are not geographically limited to nonattainment areas
adjoining an international border; and, (3) a state demonstration
prepared under CAA section 179B can consider emissions emanating from
sources in North America (i.e., Canada or Mexico) or sources on other
continents (see 86 FR 62998, 63009, December 6, 2018). In that rule,
the EPA encouraged air agencies to consult with the appropriate EPA
regional office to determine technical requirements for the CAA section
179B demonstrations. In addition, the EPA noted its development of
supplementary technical information and guidance to assist air agencies
in preparing demonstrations that meet the requirements of CAA section
179B.
The EPA issued more detailed guidance regarding CAA section 179B on
December 18, 2020, that includes recommendations to assist state,
local, and tribal air agencies that intend to develop a CAA section
179B demonstration.\41\ The guidance describes and provides examples of
the kinds of information and analyses that the EPA recommends air
agencies consider for inclusion in a CAA section 179B demonstration.
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\41\ ``Guidance on the Preparation of Clean Air Act Section 179B
Demonstrations for Nonattainment Areas Affected by International
Transport of Emissions'' issued on December 18, 2020; available at
https://www.epa.gov/sites/default/files/2020-12/documents/final_caa_179b_guidance_december_2020_with_disclaimer_ogc.pdf. The
EPA also issued a notice of availability in the Federal Register on
January 7, 2021 (86 FR 1107).
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In the guidance, the EPA confirmed that while approval of a CAA
section 179B demonstration provides specific forms of regulatory relief
for air agencies, the EPA's approval does not relieve air agencies from
obligations to meet the remaining applicable planning or emission
reduction requirements in the CAA. It also does not provide a basis
either for excluding air monitoring data influenced by international
transport from regulatory determinations related to attainment and
nonattainment, or for redesignating an area to attainment. If an air
agency is contemplating a CAA section 179B demonstration in either the
CAA section 179B(a) ``prospective'' context or the CAA section 179B(b)
``retrospective'' context, the EPA encourages communication throughout
the demonstration development and submission process, along the lines
of these basic steps: (1) The air agency contacts its EPA Regional
office to discuss CAA section 179B regulatory interests and conceptual
model; (2) the air agency begins gathering information and developing
analyses for a demonstration; (3) the air agency submits a draft CAA
section 179B demonstration to its EPA Regional office for review and
discussion; and (4) the air agency submits its final CAA section 179B
demonstration to the EPA. After that process is complete, the EPA makes
a determination as to the sufficiency of the demonstration after a
public notice and comment process. EPA may act on a prospective
demonstration when taking action on an area's attainment plan. For a
retrospective demonstration, EPA may determine its adequacy when taking
action to determine whether the area attained by the attainment date
and is subject to reclassification.
The EPA's consideration of the CAA section 179B demonstrations
submitted by states in connection with reclassification of ozone
nonattainment areas, as is relevant to this action, is governed by CAA
section 179B(b).\42\ Pursuant to that provision, the state must
establish ``to the satisfaction of the Administrator that, with respect
to [the relevant] ozone nonattainment area in such State, such State
would have attained the [2015 ozone NAAQS] by the applicable attainment
date, but for emissions emanating from outside of the United States . .
.'' Because the wording in CAA section 179B(b) is in the past tense, it
is reasonable for EPA to conclude that such demonstrations should be
retrospective in nature. In other words, the demonstration should
include analyses showing that the air quality data on specific days in
the time period used to assess attainment were affected by
international emissions to an extent that prevented the area from
attaining the standard by the attainment date. By definition, states
can only make such a demonstration after air quality data collected
pursuant to Federal reference or equivalent monitoring methods are
certified and indicate that the area failed to attain by the attainment
date. Where the EPA approves a state's CAA section 179B(b)
retrospective demonstration, the area retains its nonattainment
designation and is still subject to all applicable requirements for the
area's current
[[Page 21852]]
classification, but is not subject to the applicable requirements for
any higher classification.
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\42\ The regulatory relief a state would receive from a
satisfactory prospective CAA section 179B(a) demonstration is
limited to approval of an attainment plan that does not demonstrate
attainment and maintenance of the relevant NAAQS, but meets all
other applicable requirements. CAA section 179B(a) is not germane to
this proposal.
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The CAA does not specify what technical analyses would be
sufficient to demonstrate ``to the satisfaction of the Administrator''
that a ``State would have attained the [NAAQS for the pollutant in
question] by the applicable attainment date, but for'' international
emissions. The EPA recognizes that the relationship between certain
NAAQS exceedances and associated international transport is clearer in
some cases than in others. The following characteristics would suggest
the need for a more detailed demonstration with additional evidence:
(1) Affected monitors are not located near an international border; (2)
specific international sources and/or their contributing emissions are
not identified or are difficult to identify; (3) exceedances on
internationally influenced days are in the range of typical exceedances
attributable to local sources; and, (4) exceedances occurred in
association with other processes and sources of pollutants, or on days
where meteorological conditions were conducive to local pollutant
formation (e.g., for ozone, clear skies and elevated temperatures).
Therefore, CAA section 179B demonstrations for non-border areas may
involve additional technical rigor, analyses and resources compared to
demonstrations for border areas.
Given the extensive number of technical factors and meteorological
conditions that can affect international transport of air pollution,
and the lack of specific guidance in the Act, the EPA has decided to
evaluate CAA section 179B demonstrations based on the weight of
evidence of all information and analyses provided by the air agency.
The appropriate level of supporting documentation will vary on a case-
by-case basis depending on the nature and severity of international
influence, as well as the factors identified above. The EPA considers
and qualitatively weighs all evidence based on its relevance to CAA
section 179B and the nature of international contributions as described
in the demonstration's conceptual model. Every demonstration should
include fact-specific analyses tailored to the nonattainment area in
question. When a CAA section 179B demonstration shows that
international contributions are larger than domestic contributions, the
weight of evidence will be more compelling than if the demonstration
shows domestic contributions exceeding international contributions. In
contrast, when a CAA section 179B demonstration shows that
international emissions have a lower contribution to ozone
concentrations than domestic emissions, and/or international transport
is not significantly different on local exceedance days compared to
non-exceedance days, then the weight of evidence will not be supportive
of a conclusion that a nonattainment area would attain or would have
attained the relevant NAAQS by the statutory attainment date ``but
for'' emissions emanating from outside the U.S.
The EPA also considers in evaluating a CAA section 179B
demonstration what measures an air agency has implemented to control
local emissions. At a minimum, states are still subject to all
applicable requirements based on the requirements of that area's
classification. For EPA to concur with a state's CAA section 179B
retrospective demonstration, the weight of evidence should show the
area could not attain with on-the-books measures and potential
reductions associated with required controls for that particular NAAQS
and classification that are to be implemented by the attainment date.
Because CAA section 179B does not relieve an air agency of its planning
or control obligations, the air agency should show that it has
implemented all required emissions controls at the local level as part
of its demonstration.
b. Summary of the 2015 Ozone NAAQS CAA Section 179B Demonstrations
Submitted to the EPA and Proposed Actions
As part of meeting its duty to determine whether the San Antonio
and Northern Wasatch Front areas attained the 2015 ozone NAAQS by the
Marginal attainment date, the EPA has evaluated the CAA section 179B
demonstrations submitted by Texas and Utah for these areas. The states
submitted the CAA section 179B demonstrations to support claims that
the San Antonio and Northern Wasatch Front nonattainment areas would
have attained the 2015 ozone NAAQS by the applicable attainment date,
but for emissions emanating from outside of the United States. If the
EPA were to approve these demonstrations, then the EPA would not
reclassify these areas from Marginal to Moderate.
After a thorough review, the EPA is proposing to disapprove the CAA
section 179B demonstrations for both areas. The San Antonio, Texas,
nonattainment area is a non-border area for which the submitted
technical analysis and weight of evidence of multiple factors (for
example, whether international contributions are large in comparison to
domestic contributions) does not establish that the area would have
attained but for international transport impacts. Similarly, the
submitted demonstration for the Northern Wasatch Front, Utah,
nonattainment area--a non-border area--does not establish that the area
would have attained but for international transport impacts. The full
rationale supporting each proposed disapproval is included in the
related technical support documents provided in the docket for this
rulemaking.
The EPA solicits comment on each of these proposed CAA section 179B
demonstration disapprovals. Once again, the EPA also requests comment
on its proposal to determine that the San Antonio and Northern Wasatch
Front areas--as well as the other 22 nonattainment areas referenced in
Section II.C. of this notice--did not attain the 2015 ozone NAAQS by
the Marginal area attainment date.
D. Moderate Area SIP Revisions
Marginal nonattainment areas that the EPA has determined failed to
attain the 2015 ozone NAAQS by the attainment date will be reclassified
as Moderate by operation of law upon the effective date of the final
reclassification rule. Each responsible state air agency must submit
SIP revisions that satisfy the general air quality planning
requirements under CAA section 172(c) and the ozone specific
requirements for Moderate nonattainment areas under CAA section 182(b),
as interpreted and described in EPA's implementing regulations for the
2015 ozone NAAQS (see 40 CFR 51.1300 et seq.). This section describes
the required Moderate area submission elements, provides additional
discussion of the vehicle inspection and maintenance program
requirement, and proposes submission and implementation deadlines for
Moderate area SIP revisions required by reclassification.
As discussed in Section II.C. of this notice, Wisconsin would not
be required to submit Moderate area SIP revisions for the Door County-
Revised, Wisconsin area if this proposal is finalized. As noted
previously, for the Pechanga Band of Luise[ntilde]o Mission Indians
nonattainment area, the Pechanga Tribe would not be required to submit
a Moderate area TIP revision. Tribes that are part of multi-
jurisdictional nonattainment areas would also not be required to submit
implementation plan revisions applicable to Moderate areas.
1. Required Submission Elements
SIP requirements that apply to Moderate areas are cumulative of CAA
requirements for the Marginal
[[Page 21853]]
classification and include additional Moderate area requirements as
interpreted and described in the final SIP Requirements Rule for the
2015 ozone NAAQS (see CAA sections 172(c)(1) and 182(a) and (b), and 40
CFR 51.1300 et seq.). We are providing additional discussion in the
following sections for these Moderate area requirements: (a) RACM and
RACT and (b) Vehicle Inspection and Maintenance.
a. RACM and RACT
States with jurisdiction over all or a portion of an ozone
nonattainment area classified as Moderate or higher must provide an
analysis of--and adopt all--RACM, including RACT, needed for purposes
of meeting RFP and expeditiously attaining the ozone NAAQS in that
area. The EPA interprets the RACM provision at CAA section 172(c) to
require a demonstration that the state has adopted all technologically
and economically feasible measures (including RACT) to meet RFP
requirements and to demonstrate attainment as expeditiously as
practicable, and thus that no additional measures that are reasonably
available will advance the attainment date or contribute to RFP for the
area (see 80 FR 12264, 12282, March 6, 2015; and 40 CFR 51.1312(c)).
For areas reclassified as Moderate, such an analysis should include an
evaluation of currently available RACT for sources that emit, or have
the potential to emit, 100 tons per year or more of VOC or
NOX, as well as an evaluation of RACT for all sources
subject to a Control Techniques Guideline (see CAA sections
182(b)(2)(A-C) and 182(f)).
The EPA has long taken the position that the statutory requirement
for states to assess and adopt RACT for sources in ozone nonattainment
areas classified Moderate and higher generally exists independently
from the attainment planning requirements for such areas.\43\ In
addition to the independent RACT requirement, states have a statutory
obligation to apply RACM and adopt such measures needed to meet RFP
requirements and to demonstrate attainment as expeditiously as
practicable when also considering emissions reductions associated with
the implementation of RACT on sources in the area.\44\ Therefore, to
the extent that a state adopts new or additional control measures as
RACT to meet RFP requirements or to demonstrate attainment as
expeditiously as practicable, those states must include such RACT
revisions with the other SIP elements due as part of the attainment
plan required under CAA sections 172(c) and 182(b).
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\43\ See Memo from John Seitz, ``Reasonable Further Progress,
Attainment Demonstration, and Related Requirements for Ozone
Nonattainment Areas Meeting the Ozone National Ambient Air Quality
Standard'' (1995), at 5 (explaining that Subpart 2 requirements
linked to the attainment demonstration are suspended by a finding
that a nonattainment area is attaining but that requirements such as
RACT and I/M must be met whether or not an area has attained the
standard); see also 40 CFR 51.1318 (suspending attainment
demonstrations, RACM, RFP, contingency measures, and other
attainment planning SIPs with a finding of attainment).
\44\ Though not directly a part of a nonattainment area RACM
analysis, the EPA has interpreted CAA section 172(c)(6) to require
that air agencies also consider the impacts of emissions from
sources outside an ozone nonattainment area (but within a state's
boundaries) and must require other control measures on these
intrastate sources if doing so is necessary to provide for
attainment of the applicable ozone NAAQS within the area by the
applicable attainment date. For discussion of this ``other control
measures'' provision see also the final rule to implement the 2015
ozone NAAQS (83 FR 63015, December 6, 2018), the Phase 2 proposed
rulemaking (68 FR 32829, June 2, 2003) and final rule to implement
the 8-hour ozone NAAQS (70 FR 71623, November 29, 2005), and the
final rule to implement the PM2.5 NAAQS (81 FR 58035,
August 24, 2016).
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b. Vehicle Inspection and Maintenance (I/M)
Background on I/M. Motor vehicles are a major contributor of ozone
precursor (VOC and NOX) emissions. I/M programs reduce these
emissions by ensuring on-road motor vehicles are maintained to meet
vehicle emission standards as certified, identify excessive emissions,
and assure vehicle repairs.\45\
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\45\ See EPA's I/M website for a fact sheet and link to the I/M
regulations at https://www.epa.gov/state-and-local-transportation/vehicle-emissions-inspection-and-maintenance-im-regulations.
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As mentioned in the preceding section, a Basic I/M program is a
required Moderate area SIP submission element for the 2015 ozone NAAQS.
The applicable Basic I/M requirements for Moderate ozone nonattainment
areas are described in CAA sections 182(a)(2)(B) and 182(b)(4) and
further defined in the EPA's I/M regulations (40 CFR part 51, subpart
S).\46\ Only Moderate ozone nonattainment areas in areas with a 1990
Census-defined population of 200,000 or more (urbanized areas) are
required to implement Basic I/M programs (see 40 CFR 51.350(a)(4)).
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\46\ The EPA is not proposing changes to its I/M regulations in
this notice; however, additional clarification in this preamble is
provided to assist states with nonattainment areas subject to Basic
I/M in understanding specific I/M program requirements due to being
reclassified as Moderate.
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Areas subject to Basic I/M program requirements for the 2015 ozone
NAAQS. A Basic I/M program is required for all urbanized Moderate areas
under the 2015 ozone NAAQS, including for areas with and without an
existing I/M program that may have been implemented to meet the CAA
requirements for a previous ozone NAAQS. Most of the Marginal
nonattainment areas being proposed in this action for reclassification
to Moderate under the 2015 ozone NAAQS are already operating I/M
programs for a variety of reasons, including being designated
nonattainment and classified as Moderate or above under a prior ozone
standard and/or as part of a maintenance plan for a prior NAAQS.
Consistent with the I/M regulations, states with existing I/M programs
would need to conduct and submit a performance standard modeling
analysis as well as make any necessary program revisions as part of
their Moderate area SIP submissions to ensure that I/M programs are
operating at or above the Basic I/M performance standard level for the
2015 ozone NAAQS.\47\ States may determine through the performance
standard modeling analysis that an existing SIP-approved program would
meet the performance standard for purposes of the 2015 ozone NAAQS
without modification. In this case, the state could submit a SIP
revision with the associated performance modeling and a written
statement certifying their determination in lieu of submitting new
revised regulations.\48\ With the passage of time and changes in fleet
mix, it is appropriate for States to confirm existing programs'
compliance with the performance standard.
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\47\ 40 CFR 51.372(a)(2). An I/M performance standard is a
collection of program design elements which defines a benchmark
program to which a state's proposed program is compared in terms of
its potential to reduce emissions of the ozone precursors, VOC, and
NOX.
\48\ See Implementation of the 2015 National Ambient Air Quality
Standards for Ozone: Nonattainment Area Classifications and State
Implementation Plan Requirements, 83 FR 63001-63002. Performance
standard modeling is also required for Enhanced I/M programs for the
2015 ozone NAAQS in Serious and above ozone nonattainment areas for
that NAAQS.
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In addition, the EPA recognizes that there are four Marginal
nonattainment areas being proposed in this action for reclassification
to Moderate under the 2015 ozone NAAQS that do not currently operate an
I/M program but meet the population criteria for Basic I/M programs:
Cincinnati, Ohio-Kentucky; Detroit, Michigan; Louisville, Kentucky-
Indiana; and San Antonio, Texas. If we finalize our action as proposed,
these newly reclassified Moderate nonattainment areas would need to
submit a SIP revision. Such a revision would address the Basic I/M
program requirements to be fully implemented as expeditiously as
[[Page 21854]]
practicable but no later than the implementation deadline determined by
the final action reclassifying these areas as discussed in Section
II.D.2.c. of this notice.
The EPA has already established the SIP elements for meeting Basic
I/M program requirements. These elements will need to be detailed in a
state's I/M SIP submission; the I/M regulations at 40 CFR 51.372
address I/M SIP submissions with paragraphs (a)(1)-(8) outlining the
required elements. The first required element is a schedule for the I/M
program implementation and interim milestones leading to mandatory
testing. This list of milestones to be scheduled in the SIP includes
such things as passage of enabling statutory or other legal authority;
proposal of draft regulations and promulgation of final regulations;
issuance of final specifications and procedures; issuance of final
Request for Proposals (if applicable); licensing or certifications of
stations and inspectors; the date mandatory testing will begin for each
model year to be covered by the program; etc. (see 40 CFR
51.372(a)(1)).
The other seven elements that the I/M SIP will need to address
include a performance standard modeling analysis of the proposed I/M
program; the geographic applicability of the I/M program; a detailed
discussion of each of the required design elements; \49\ legal
authority requiring or allowing implementation of the I/M program and
providing either broad or specific authority to perform all required
elements of the program; legal authority for I/M program operation
until such time as it is no longer necessary; implementing regulations,
interagency agreements, and memoranda of understanding; and evidence of
adequate funding and resources to implement all aspects of the program
(see 40 CFR 51.372(a)(2)-(8)). Not all of these I/M program SIP
elements need to be established in full prior to the due date of the I/
M SIP submission (see Section II.D.2.a. of this notice), but rather,
the I/M SIP needs to establish deadlines for certain I/M program
elements leading to full implementation of the I/M program as
expeditiously as practicable but in no case later than the
implementation deadline determined by the final action to this
proposal, as discussed in Section II.D.2.c. of this notice.
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\49\ I/M program design elements are program features that have
a direct impact on the ability of the program to reduce levels of
the ozone precursors, VOC, and NOX. These design elements
include test frequency (annual or biennial), waiver/compliance rate,
vehicle type coverage, model year (MY) coverage, network type
(centralized or decentralized), and test type (e.g., idle, onboard
diagnostics (OBD)).
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I/M and Environmental Justice. While vehicle emissions-per-mile
have decreased due to advances in vehicle emission control technology,
those controls can degrade over time which can lead to excess pollution
in ozone nonattainment areas. I/M programs ensure that vehicles are
operating according to EPA's vehicle emissions standards and adequately
protecting public health. However, any Basic I/M program for the 2015
ozone NAAQS may present potential economic hardship and other concerns
for low-income individuals of newly reclassified Moderate ozone
nonattainment areas. Specifically, these residents might own older,
high-emitting vehicles and be less able to pay for car repairs needed
as the result of a failed I/M test. To address this disparity in other
I/M programs, some states such as Arizona, California,\50\ and Utah
\51\ fund vehicle repair or replacement assistance. For example, the
Arizona Voluntary Vehicle Repair Program provides owners of eligible
vehicles with financial assistance toward the cost of repairs after a
failed emissions test. Since 2018, more than 2,700 vehicles have been
repaired through this program, saving Arizona motorists more than $1.3
million and eliminating more than 560 tons of emissions.\52\ The EPA
believes the implementation of Basic I/M programs in communities with
low-income individuals is an important issue. We encourage states that
are not already providing such assistance programs to work with
interested parties in their nonattainment areas to address such
concerns.
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\50\ The California Bureau of Automotive Repair's Consumer
Assistance Program offers eligible consumers repair assistance and
vehicle retirement options to help improve air quality. For more
information, see https://www.bar.ca.gov/consumer/Consumer_Assistance_Program/.
\51\ Utah's Vehicle Repair and Replacement Assistance Program
provides funding assistance to individuals whose vehicles are
failing vehicle emission standards to either replace their failing
vehicle with a newer, cleaner one or to repair it. For more
information see https://deq.utah.gov/air-quality/incentive-programs-aq/vehicle-repair-and-replacement-assistance-program.
\52\ For more information, see https://www.azdeq.gov/node/4525.
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Basic I/M Program Design Element Considerations and Meeting the
Performance Standard. There are several program design elements
described in EPA's existing I/M regulations that should be considered
for Basic I/M programs.
To determine whether a given set of program design elements meets
the applicable I/M performance standard, it is necessary to conduct
performance standard modeling.\53\ The performance standard for Basic
I/M programs in areas designated nonattainment for the 2015 ozone NAAQS
includes, among other things, annual inspections of light-duty vehicles
in a centralized test program by conducting idle testing of 1968-2000
Model Year (MY) subject vehicles and on-board diagnostics (OBD) checks
on 2001 and newer subject vehicles (see 40 CFR 51.352(e)). The EPA
believes that this Basic I/M performance standard can be met by a state
program that exempts 1995 MY and older vehicles from tailpipe testing
by performing the OBD test on 1996 and newer OBD-equipped light-duty
vehicles. In this case, the relatively small benefit of tailpipe idle
testing is surpassed by the addition of 1996-2000 MY light-duty
vehicles to the OBD testing coverage. Additional flexibilities in
designing the I/M program (such as allowing newer MY exemptions, and/or
permitting the testing of vehicles biennially as opposed to annually)
might be realized by increasing the level of certain design elements
beyond that of this Basic I/M performance standard such as the
inclusion of OBD testing of light-duty trucks or increasing the Gross
Vehicle Weight Range of the subject fleet.\54\ The degree to which this
Basic I/M performance standard allows for additional forms of
flexibility will depend largely upon the local conditions within the I/
M program area, such as the local fleet characteristics like age
distribution and vehicle market share, and local meteorological
characteristics. The EPA intends to provide technical assistance for
Basic I/M programs under the 2015 ozone NAAQS separate from this
rulemaking.
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\53\ See 40 CFR 51.372(a)(2) and 51.352.
\54\ Areas that intend to use I/M emission reductions for
attainment or RFP SIPs, can also consider adding the testing of
light-duty trucks (or other Enhanced I/M program elements) to their
I/M testing regimen to increase the emission reduction benefits of
I/M, especially considering the increased fraction of light-duty
trucks in the local vehicle fleet over the last two decades.
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2. Submission and Implementation Deadlines
a. Submission Deadline for SIP Revisions
On August 3, 2018 (September 24, 2018, for the San Antonio, Texas,
area), when final nonattainment designations became effective for the
2015 ozone NAAQS, states responsible for areas initially classified as
Moderate were required to prepare and submit SIP revisions by deadlines
relative to that effective date. For those areas, the submission
deadlines ranged from 2 to 3 years after the effective date of
[[Page 21855]]
designation, depending on the SIP element required (e.g., 2 years for
the RACT SIP, 3 years for the attainment plan with RACM and attainment
demonstration, and 3 years for a Basic I/M program SIP if required).
Areas initially classified as Moderate are also required to implement
RACM and RACT as expeditiously as practicable but no later than January
1 of the 5th year after the effective date of designations, i.e.,
January 1, 2023, with 2023 being the Moderate area attainment year.
CAA section 182(i) provides that areas reclassified under CAA
section 181(b)(2) shall generally meet the requirements associated with
their new classifications ``according to the schedules prescribed in
connection with such requirements, except that the Administrator may
adjust any applicable deadlines (other than attainment dates) to the
extent such adjustment is necessary or appropriate to assure
consistency among the required submissions.'' The SIP submission
deadlines for areas initially designated as Moderate have passed,
therefore the EPA is proposing to use its discretion under CAA section
182(i) to adjust SIP submission deadlines that would otherwise apply.
We recognize that the time between the anticipated effective date of
reclassification and the Moderate area attainment date in 2024 (and,
critically, the attainment year of 2023) is far less than the 6 years
that initially designated Moderate areas have between designation and
the attainment date. Given this compressed timeline, we are proposing,
as discussed in more detail later, to set the SIP submission deadlines
for all the various requirements for the newly reclassified Moderate
areas as January 1, 2023. While not all of the ``schedules prescribed
in connection with'' the various Subpart 2 requirements are the same
(e.g., the statute provides 3 years to submit SIPs for some
requirements and 2 years for others), we think coordinating the
submissions with the same deadline is necessary and appropriate in this
situation given the compressed timeline and the need to achieve
consistency among those submissions.
With respect to the SIP requirements for Moderate areas, the
``schedules prescribed in connection'' with those requirements are 2
years from the effective date of designation for RACT and 3 years from
the effective date of designation for an attainment plan (see CAA
sections 182(b)(1), 181(b)(2) and 182(i)). The 2-year and 3-year
deadlines that applied to areas initially designated Moderate have
already passed (August 3, 2021, or September 24, 2021, for San
Antonio), and we do not find it appropriate to provide deadlines of 2
and 3 years from the effective date of a final action on this
determination, either, as those deadlines would fall after the Moderate
area attainment date of August 3, 2024. Given that attainment for these
newly reclassified Moderate areas will be determined based on air
quality monitoring data from the DV period of 2021-2023 (i.e., 2023 is
the attainment year, or the last calendar year of data prior to the
attainment date), in order for any of the Moderate area controls to
influence attainment by the Moderate area attainment date, they would
need to be implemented by the beginning of the 2023 ozone season at the
latest. We further recognize that the San Antonio, Texas, nonattainment
area was designated later than the other areas being reclassified to
Moderate, however, we are proposing that the SIP submission deadline
for requirements associated with the Moderate area classification be
due for all newly reclassified areas on January 1, 2023, in order to
ensure consistency among submissions.
With respect to the SIP submission deadlines for RACT, the EPA's
implementing regulations for the 2015 ozone NAAQS established a RACT
SIP submission deadline for areas classified Moderate or higher of
either 24 months from the reclassification effective date or a deadline
established by the Administrator in the reclassification action using
their discretion under CAA section 182(i) (see 40 CFR
51.1312(a)(2)(ii)). In the case of the potential newly reclassified
Moderate areas addressed in this proposal, a RACT SIP submission
deadline of 24 months after an anticipated 2022 effective date would
fall in 2024, potentially near or after the applicable Moderate area
attainment date of August 3, 2024 (September 24, 2024, for the San
Antonio area). We believe it would be reasonable to instead align the
SIP submission deadline for RACT with the proposed January 1, 2023,
submission deadline for other Moderate area requirements, given the
compressed timeline and the need to achieve consistency among those
submissions as discussed previously. The EPA adopted this approach
previously for Marginal areas reclassified to Moderate for failure to
timely attain the 2008 ozone NAAQS, to achieve consistency among
required SIP submissions for areas facing a similar compressed
timeframe between the effective date of reclassifications and the
Moderate area attainment date.\55\
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\55\ ``Final Rule--Determinations of Attainment by the
Attainment Date, Extensions of the Attainment Date, and
Reclassification of Several Areas for the 2008 Ozone National
Ambient Air Quality Standards'' (81 FR 26697, 26705, May 4, 2016).
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Similarly, with respect to the SIP submission deadlines for I/M, we
are proposing a January 1, 2023, deadline. This is consistent with the
I/M regulations which provide that an I/M SIP shall be submitted no
later than the deadline for submitting the area's attainment SIP.\56\
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\56\ 40 CFR 51.372(b)(2).
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b. RACM and RACT Implementation Deadline
With respect to implementation deadlines, the EPA's implementing
regulations for the 2015 ozone NAAQS require that, for areas initially
classified as Moderate or higher, a state shall provide for
implementation of RACT as expeditiously as practicable but no later
than January 1 of the 5th year after the effective date of designation
(see 40 CFR 51.1312(a)(3)(i)), which corresponds with the beginning of
the attainment year for initially classified Moderate areas (January 1,
2023). The modeling and attainment demonstration requirements for 2015
ozone NAAQS areas classified Moderate or higher require that a state
must provide for implementation of all control measures needed for
attainment no later than the beginning of the attainment year ozone
season, notwithstanding any alternative deadline established per 40 CFR
51.1312 (see 40 CFR 51.1308(d)). The EPA's implementing regulations for
the 2015 ozone NAAQS require that the state shall provide for
implementation of RACT as expeditiously as practicable, but no later
than the start of the attainment year ozone season associated with the
area's new attainment deadline, or January 1 of the third year after
the associated SIP submission deadline, whichever is earlier; or the
deadline established by the Administrator in the final action issuing
the area reclassification (see 40 CFR 51.1312(a)(3)(ii)).
In the case of the potential reclassified Moderate areas addressed
in this proposal, the start of the ozone season varies among states and
is either January or March for potential reclassified Moderate areas
addressed in this proposal (see 40 CFR part 58, appendix D, section
4.1, Table D-3).The EPA rejected an approach that would establish
variable RACM/RACT implementation deadlines corresponding to an area's
defined ozone season starting month because of the inconsistencies that
such an approach would perpetuate. Instead, the EPA is proposing a
consistent single
[[Page 21856]]
RACM/RACT implementation deadline for all newly reclassified Moderate
areas corresponding with the beginning of the applicable attainment
year, i.e., January 1, 2023. This proposed deadline is the same as the
single RACT implementation deadline for all areas initially classified
Moderate per 40 CFR 51.1312(a)(3) and would require implementation of
any identified RACM/RACT as early as possible in the attainment year to
influence an area's air quality and 2021-2023 attainment DV. The
proposed RACT implementation deadline would also align with the
proposed SIP submission deadline of January 1, 2023, and ensure that
SIPs requiring control measures needed for attainment, including RACM,
would be submitted no later than when those controls are required to be
implemented. A single deadline for the Moderate area SIP submissions
and RACT implementation would also treat states consistently, in
keeping with CAA section 182(i).
The EPA requests comment on requiring that RACM/RACT be implemented
as expeditiously as practicable but no later than the beginning of the
applicable attainment year, i.e., January 1, 2023.
c. I/M Implementation Deadline
With respect to the implementation deadline for Basic I/M programs,
states wishing to use emission reductions from their newly required
Basic I/M program for the 2015 ozone NAAQS would need to have such
programs fully established and start testing as expeditiously as
practicable but no later than the beginning of the applicable
attainment year, i.e., January 1, 2023. However, given the unique
nature of I/M programs, there are many challenges, tasks, and
milestones that must be met in establishing and implementing an I/M
program. The EPA realizes that implementing a brand new or revised I/M
program on an accelerated timeline may be difficult to achieve in
practice, especially for states with no I/M programs elsewhere within
their jurisdiction, so, for the states that do not intend to rely upon
emission reductions from their Basic I/M program in attainment or RFP
SIPs, we are proposing to allow Basic I/M programs to be fully
implemented no later than 4 years after the effective date of
reclassification, explained as follows.
Under CAA section 182(i), reclassified areas are generally required
to meet the requirements associated with their new classification
``according to the schedules prescribed in connection with such
requirements.'' The I/M regulations provide just such a prescribed
schedule in stating that newly required I/M programs are to be
implemented as expeditiously as practicable. The I/M regulations also
allow areas newly required to implement Basic I/M up to ``4 years after
the effective date of designation and classification'' to fully
implement the I/M program.\57\ With the effective date of this notice
expected to be in 2022, the implementation deadline for Basic I/M
programs for the 2015 ozone NAAQS under the proposal would be in 2026.
This proposed implementation deadline is beyond the Moderate area
attainment date of August 3, 2024 (or September 24, 2024, for the San
Antonio area). However, by proposing such a deadline for newly
reclassified Moderate areas required to implement a Basic I/M program
(but not needing I/M emission reductions for attainment or RFP SIP
purposes), the EPA maintains that these newly required Basic I/M
programs could reasonably be implemented after the attainment year
ozone season (i.e., after 2023) relevant to the Moderate area
attainment date if reductions from an I/M program are not necessary for
an area to achieve timely attainment of the 2015 ozone NAAQS. The EPA
has long taken the position that, like VOC RACT, the statutory
requirement for states to implement I/M in ozone nonattainment areas
classified Moderate and higher generally exists independently from the
attainment planning requirements for such areas (see RACT discussion
above in Section II.D.1.a. of this notice).\58\ Considering the
numerous challenges and milestones necessary in implementing a Basic I/
M program, this proposed implementation deadline of up to 4 years is
reasonable.
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\57\ The I/M program implementation deadline at 40 CFR 51.373(b)
states: ``For areas newly required to implement Basic I/M as a
result of designation under the 8-hour ozone standard, the required
program shall be fully implemented no later than 4 years after the
effective date of designation and classification under the 8-hour
ozone standard.'' A start date for I/M programs of 4 years after the
effective date of designation and classification under the 8-hour
ozone standard is also cited in the Basic I/M performance standard
at 40 CFR 51.352(c) and (e)(2).
\58\ John S. Seitz, Memo, ``Reasonable Further Progress,
Attainment Demonstration, and Related Requirements for Ozone
Nonattainment Areas Meeting the Ozone National Ambient Air Quality
Standard,'' May 10, 1995, at 4.
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Alternately, EPA is also seeking comment on allowing any newly
reclassified areas required to implement a Basic I/M program (but not
needing I/M for attainment or RFP SIP purposes) to fully implement the
Basic I/M program by no later than the Moderate area attainment date of
August 3, 2024 (September 24, 2024, for the San Antonio area). CAA
section 182(i) also gives the EPA the discretion to adjust deadlines
for reclassified areas ``to the extent such adjustment is necessary or
appropriate to assure consistency among the required submissions.'' As
discussed previously, although Basic I/M is not explicitly tied to an
area's ability to achieve timely attainment, this alternate
implementation deadline would more closely align with that of the other
required Moderate area elements.
The EPA believes the proposed 4-year implementation deadline offers
the states that will be required to implement Basic I/M due to
reclassifications, if those reclassifications are finalized as
proposed, the flexibility to fully implement the I/M programs on a
timeline that addresses the challenges, especially for states starting
new Basic I/M programs. The EPA also requests comments on aligning the
I/M implementation deadline with that of the other required Moderate
area elements.
III. Environmental Justice Considerations
As discussed in Section II.B of this notice, the EPA proposes to
grant a request for a 1-year attainment date extension for the Uinta
Basin, Utah, nonattainment area and extend the August 3, 2021, Marginal
area attainment date to August 3, 2022, based on our finding that the
state meets the two criteria under CAA section 181(a)(5) as interpreted
by the EPA in 40 CFR 51.1307 and there are no particular facts or
circumstances that would compel the EPA Administrator to consider
information beyond the statutory criteria. To that end, the EPA
conducted an EJSCREEN analysis for the area to evaluate whether
communities in the Uinta Basin area may be exposed to disproportionate
pollution burdens. The results of our screening analysis did not
indicate disproportionate exposure or burdens with respect to the non-
ozone environmental indicators assessed in EJSCREEN.
As discussed in Section II.D.1.b of this notice, a Basic vehicle I/
M program is required for all urbanized Moderate areas under the 2015
ozone NAAQS, including for areas with and without an existing I/M
program that may have been implemented to meet the CAA requirements for
a previous ozone NAAQS. I/M programs ensure that vehicles are operating
according to EPA's vehicle emissions standards and adequately
protecting public health. However, any Basic I/M program for the 2015
ozone NAAQS may present potential economic hardship and other concerns
for low-income individuals of newly reclassified Moderate ozone
[[Page 21857]]
nonattainment areas, and we encourage states that are not already
providing I/M assistance programs to work with interested parties in
their nonattainment areas to address such concerns.
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.
B. Paperwork Reduction Act (PRA)
This proposed rule does not impose any new information collection
burden under the PRA not already approved by the Office of Management
and Budget. This action proposes to: (1) Find that certain Marginal
ozone nonattainment areas listed in Table 1 failed to attain the 2015
NAAQS by the applicable attainment date; (2) identify those areas
subject to reclassification as Moderate ozone nonattainment areas by
operation of law upon the effective date of the reclassification
notice; and (3) adjust any applicable implementation deadlines. Thus,
the proposed action does not establish any new information collection
burden that has not already been identified and approved in the EPA's
information collection request.\59\
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\59\ On April 30, 2018, the OMB approved EPA's request for
renewal of the previously approved information collection request
(ICR). The renewed request expired on April 30, 2021, 3 years after
the approval date (see OMB Control Number 2060-0695 and ICR
Reference Number 201801-2060-003 for EPA ICR No. 2347.03). On April
30, 2021, the OMB published the final 30-day Notice (86 FR 22959)
for the ICR renewal titled ``Implementation of the 8-Hour National
Ambient Air Quality Standards for Ozone (Renewal)'' (see OMB Control
Number 2060-0695 and ICR Reference No: 202104-2060-004 for EPA ICR
Number 2347.04). The ICR renewal is pending OMB final approval.
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C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities. The proposed
determinations of attainment and failure to attain the 2008 ozone NAAQS
(and resulting reclassifications), and the proposed determination to
deny or grant a 1-year attainment date extension do not in and of
themselves create any new requirements beyond what is mandated by the
CAA. Instead, this rulemaking only makes factual determinations, and
does not directly regulate any entities.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. This action imposes no enforceable duty on any
state, local or tribal governments or the private sector.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government. The
division of responsibility between the Federal Government and the
states for purposes of implementing the NAAQS is established under the
CAA.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action has tribal implications. However, it will neither
impose substantial direct compliance costs on federally recognized
tribal governments, nor preempt tribal law.
The EPA has identified tribal areas within the nonattainment areas
covered by this proposed rule, that would be potentially affected by
this rulemaking. Specifically, eight of the nonattainment areas
addressed in this proposal have tribes located within their boundaries:
Amador, California (Jackson Rancheria of Me-Wuk Indians), Berrien
County, Michigan (Pokagon Band of Potawatomi Indians), Greater
Connecticut, Connecticut (Mashantucket Pequot Tribal Nation and Mohegan
Indian Tribe), Northern Wasatch Front, Utah (Skull Valley Band of
Goshute Indians), Phoenix-Mesa, Arizona (Fort McDowell Yavapai Nation,
Gila River Indian Community of the Gila River Indian Reservation, Salt
River Pima-Maricopa Indian Community of the Salt River Reservation, and
Tohono O'odham Nation), San Francisco, California (Lytton Rancheria),
Uinta Basin, Utah (Ute Indian Tribe of the Uintah & Ouray Reservation),
and Yuma, Arizona (Cocopah Tribe and Quechan Tribe of the Fort Yuma
Indian Reservation). One of the nonattainment areas addressed in this
document is a separate tribal nonattainment area (Pechanga Band of
Luise[ntilde]o Mission Indians of the Pechanga Reservation,
California).
The EPA has concluded that the proposed rule may have tribal
implications for these tribes for the purposes of Executive Order 13175
but would not impose substantial direct costs upon the tribes, nor
would it preempt tribal law. As noted previously, a tribe that is part
of an area that is reclassified from Marginal to Moderate nonattainment
is not required to submit a TIP revision to address new Moderate area
requirements. However, if the EPA finalizes the determinations of
failure to attain proposed in this action, the NNSR major source
threshold and offset requirements would change for stationary sources
seeking preconstruction permits in any nonattainment areas newly
reclassified as Severe (Section II.D.1 of this notice), including on
tribal lands within these nonattainment areas. Areas that are already
classified Moderate for a previous ozone NAAQS are already subject to
these higher offset ratios and lower thresholds, so a reclassification
to Moderate for the 2015 ozone NAAQS would have no effect on NNSR
permitting requirements for tribal lands in those areas.
The EPA has communicated or intends to communicate with the
potentially affected tribes located within the boundaries of the
nonattainment areas addressed in this proposal, including offering
government-to-government consultation, as appropriate.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it does not establish an environmental
standard intended to mitigate health or safety risks.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer Advancement Act (NTTAA)
This rulemaking does not involve technical standards.
[[Page 21858]]
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA believes that this action does not have disproportionately
high and adverse human health or environmental effects on minority
populations, low-income poulations and/or indigenous peoples, as
specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The
documentation for this determination is presented in Section II.B of
this action, ``Extension of Marginal Area Attainment Date,'' and
summarized in Section III of this action, ``Environmental Justice
Considerations,'' and the relevant documents have been placed in the
public docket for this action.
With respect to the determinations of whether areas have attained
the NAAQS by the attainment date, the EPA has no discretionary
authority to address EJ in these determinations. The CAA directs that
within 6 months following the applicable attainment date, the
Administrator shall determine, based on the area's design value as of
the attainment date, whether the area attained the standard by that
date. CAA section 181(b)(2)(A). Except for any Severe or Extreme area,
any area that the Administrator finds has not attained the standard by
that date shall be reclassified by operation of law to either the next
higher classification or the classification applicable to the area's
design value. Id.
K. Judicial Review
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 actions 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 the
EPA complete discretion whether to invoke the exception in (ii).\60\
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\60\ In deciding whether to invoke the exception by making and
publishing a finding that this action, if finalized, is based on a
determination of nationwide scope or effect, the Administrator
intends to 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.
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The EPA is proposing findings regarding attainment of the NAAQS in
nonattainment areas within 18 states located in nine of the ten EPA
regions pursuant to a uniform process and standard. The EPA is also
proposing to establish SIP submission and implementation deadlines for
all newly reclassified areas in the identified states using a common,
nationwide method. The jurisdictions that would be affected by this
action, if finalized, represent a wide geographic area, and fall within
several different judicial circuits.
If the Administrator takes final action on this proposal, then, in
consideration of the effects of the action across the country, the EPA
views this action to be ``nationally applicable'' within the meaning of
CAA section 307(b)(1). In the alternative, to the extent a court finds
this proposal, if finalized, to be locally or regionally applicable,
the Administrator intends to exercise the complete discretion afforded
to him under the CAA to make and publish a finding that this action is
based on a determination of ``nationwide scope or effect'' within the
meaning of CAA section 307(b)(1).\61\
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\61\ In the report on the 1977 Amendments that revised CAA
section 307(b)(1), 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
323-24, reprinted in 1977 U.S.C.C.A.N. 1402-03.
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List of Subjects
40 CFR Part 52
Environmental protection, Administrative practice and procedure,
Air pollution control, Designations and classifications, Incorporation
by reference, Intergovernmental relations, Nitrogen oxides, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR Part 81
Environmental protection, Administrative practice and procedure,
Air pollution control, Designations and classifications,
Intergovernmental relations, Nitrogen oxides, Ozone, Reporting and
recordkeeping requirements, Volatile organic compounds.
Michael Regan,
Administrator.
[FR Doc. 2022-07513 Filed 4-12-22; 8:45 am]
BILLING CODE 6560-50-P