[Federal Register Volume 87, Number 134 (Thursday, July 14, 2022)]
[Proposed Rules]
[Pages 42126-42132]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-15032]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2022-0412; FRL-9818-01-R9]
Determinations of Attainment by the Attainment Date, California
Areas Classified as Serious for the 2008 Ozone National Ambient Air
Quality Standards and 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) is proposing to
determine that the Nevada County (Western part) and Ventura County
areas in California, both classified as Serious for the 2008 ozone
National Ambient Air Quality Standards (NAAQS), attained the 2008 ozone
NAAQS by the July 20, 2021 attainment date. The EPA is also proposing
to determine that six areas in California classified as Marginal for
the 2015 ozone NAAQS, attained the 2015 ozone NAAQS by the August 3,
2021 attainment date. These six areas are: Butte County, Calaveras
County, San Luis Obispo (Eastern part), Sutter Buttes, Tuolumne County,
and Tuscan Buttes. Our proposed determination of attainment is based on
the exclusion of exceedances of the 2008 and 2015 ozone NAAQS that
occurred on multiple days in 2018 and 2020, because the exceedances are
due to exceptional events. We are further proposing to find that, if we
finalize these proposed determinations of attainment by the attainment
date for the Nevada County (Western part) and Ventura nonattainment
areas, then the requirement for the state to have contingency measures
for Reasonable Further Progress (RFP) and attainment for the 2008 ozone
NAAQS for these areas will no longer apply, because the contingency
measures would never be needed given the attainment of the NAAQS. This
action, if finalized as proposed, will fulfill the EPA's statutory
obligation to determine whether these ozone nonattainment areas
attained the NAAQS by the relevant attainment date.
DATES: Comments must be received on or before August 15, 2022.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2022-0412, at https://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from regulations.gov. The EPA may publish any
comment received to our public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e., on the Web, Cloud, or other
file sharing system). For additional submission methods, please contact
the person identified in the FOR FURTHER INFORMATION CONTACT section.
For the full EPA public comment policy, information about CBI or
multimedia submissions, and general guidance on making effective
comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets. If you need assistance in a language other than English or if
you are a person with disabilities who needs a reasonable accommodation
at no cost to you, please contact the person identified in the FOR
FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: Laura Lawrence, Air Planning Office
(AIR-2), EPA Region IX, 75 Hawthorne Street, San Francisco, CA 94105;
By phone: (415) 972-3407 or by email: [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' or
``our'' means the EPA.
Table of Contents
I. Background
A. Statutory and Regulatory Background for the Proposed Actions
B. Determination of Attainment or Failure to Attain
1. 2008 Ozone NAAQS
2. 2015 Ozone NAAQS
C. Data Considered for This Proposed Determination
D. Areas Addressed in Proposed Action
1. Areas Classified Serious for the 2008 Ozone NAAQS
2. Areas Classified Marginal for the 2015 Ozone NAAQS
II. Proposed Determinations of Attainment by the Attainment Date
A. Determinations of Attainment and the EPA's Analysis of
Relevant Air Quality Monitoring Data
B. Exceptional Events Relevant to the EPA's Analysis of Relevant
Air Quality Monitoring Data
C. Effect of This Proposal: Designation and Classification
D. Effect of This Proposal: Contingency Measures
III. Environmental Justice Considerations
IV. Summary of Proposal
V. Statutory and Executive Order Reviews
I. Background
A. Statutory and Regulatory Background for the Proposed Actions
The Clean Air Act (CAA or ``Act'') requires the EPA to establish
primary and secondary National Ambient Air Quality Standards (NAAQS or
``standards'') for certain pervasive pollutants that ``may reasonably
be anticipated to endanger public health and welfare.'' \1\ The primary
NAAQS is designed to protect public health with an adequate margin of
safety, and the secondary NAAQS is designed to protect public welfare
and the environment. The EPA has set standards for six common air
pollutants, referred to as criteria pollutants, including ozone
(O3). These standards represent the air quality levels an
area must meet to comply with the CAA.
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\1\ CAA section 108(a).
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Ozone is a gas created in the troposphere by chemical reactions
between volatile organic compounds (VOC) and oxides of nitrogen
(NOX) in the presence of sunlight. Ground-level ozone can
harm human health and the environment. Ozone exposure has been
associated with increased susceptibility to respiratory infections,
increased medication use by asthmatics, and increased health care
visits, emergency department visits, and hospital admissions for
individuals with
[[Page 42127]]
respiratory disease. Ozone exposure may also contribute to metabolic
diseases, such as diabetes, and premature death, especially in people
with heart and lung disease.
In March 2008, the EPA strengthened the ozone NAAQS, establishing
primary and secondary 8-hour ozone standards at a level of 0.075 ppm
(``2008 ozone NAAQS'' or ``2008 ozone standards'').\2\ The numerical
level of the NAAQS had previously been set at 0.08 ppm. In October
2015, the EPA further strengthened the primary and secondary eight-hour
ozone NAAQS from 0.075 parts per million (ppm) to 0.070 ppm (``2015
ozone NAAQS'' or ``2015 ozone standards'').\3\ Both of these standards
require that the 3-year average of the annual fourth highest daily
maximum 8-hour average ozone concentration may not exceed the numerical
level of the standard. Section 107(d) of the CAA requires the EPA to
designate an area ``nonattainment'' if it is violating the standards or
if it has sources contributing to a violation of the standards in a
nearby area. The EPA designates areas for each standard separately, and
makes determinations of attainment individually for each area and each
standard. For ozone standards, the EPA classifies nonattainment areas
as ``Marginal,'' ``Moderate,'' ``Serious,'' ``Severe,'' or ``Extreme,''
depending upon ambient air monitoring results calculated as an ozone
design value of the area at the time of designation.4 5 An
ozone nonattainment area with a higher classification is subject to a
greater number of, and more stringent, CAA planning and control
requirements than lower classification areas, but the state is provided
more time to attain the NAAQS.\6\
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\2\ 73 FR 16436 (March 27, 2008).
\3\ 80 FR 65291 (October 26, 2015).
\4\ See CAA section 181(a)(1).
\5\ 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 design value for the
2015 ozone and 2008 ozone NAAQS is the 3-year average of the annual
fourth highest daily maximum 8-hour average ozone concentration. The
design value is calculated for each air quality monitor in an area
and the area's design value is the highest design value among the
individual monitoring sites in the area.
\6\ See, generally, subpart 2 of part D of title I of the CAA.
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B. Determination of Attainment or Failure To Attain
The EPA is required to determine whether areas designated
nonattainment attained the NAAQS by the applicable attainment date, and
to take certain steps for areas that failed to attain.\7\ For a
concentration-based standard, such as the 2008 and 2015 ozone NAAQS,
the determination of attainment or failure to attain is based on a
nonattainment area's design value, as described below.
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\7\ CAA section 181(b)(2).
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1. 2008 Ozone NAAQS
Under the EPA regulations at 40 Code of Federal Regulations (CFR)
part 50, appendix P, the 2008 ozone NAAQS is attained at a monitor site
when the design value, (i.e., the 3-year average of the annual fourth
highest daily maximum 8-hour average ambient air quality ozone
concentration) does not exceed 0.075 ppm. The data handling convention
in Appendix P dictates that concentrations shall be reported in parts
per million to the third decimal place, with additional digits to the
right being truncated. Thus, a computed 3-year average ozone
concentration of 0.076 ppm is greater than 0.075 ppm and would exceed
the standard, but a design value of 0.0759 is truncated to 0.075 and
attains the 2008 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.\8\ Ambient
air quality monitoring data for the 3-year period preceding the year of
the attainment date (i.e., 2018-2020 for the 2008 ozone NAAQS Serious
areas with an attainment date of July 20, 2021) must meet the data
completeness requirements in Appendix P.\9\ 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. Additional information on data handling
conventions for the 2008 ozone NAAQS is found in the Technical Support
Document (TSD) accompanying this rulemaking.\10\
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\8\ 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 nonattainment 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.
\9\ 40 CFR part 50, appendix P, section 2.3(b).
\10\ Technical Support Document (TSD) Regarding Ozone
Monitoring--Data Determinations of Attainment under the 2008 and
2015 8-Hour Ozone National Ambient Air Quality Standards (NAAQS) for
Select Areas in California.
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2. 2015 Ozone NAAQS
Under the EPA regulations at 40 CFR part 50, appendix U, the 2015
ozone NAAQS is attained at a site when the design value (i.e., the 3-
year average of the annual fourth highest daily maximum 8-hour average
ambient air quality ozone concentration) does not exceed 0.070 ppm. The
data handling 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 design value 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 AQS database. Ambient air quality monitoring
data for the 3-year period preceding the attainment date (i.e., 2018-
2020 for the 2015 ozone NAAQS Marginal areas with an attainment date of
August 3, 2021) must meet the data completeness requirements in
Appendix U.\11\ 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.
Additional information on data handling conventions for the 2015 ozone
NAAQS is found in the technical support document (TSD) accompanying
this rulemaking.
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\11\ See 40 CFR part 50, appendix U, section 4(b).
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C. Data Considered for This Proposed Determination
Because the design value is based on three complete calendar years
of data, attainment must occur no later than December 31 of the year
prior to the attainment date. Accordingly, for these areas in
California with attainment dates of July 20, 2021 and August 3, 2021,
the areas must show attainment by December 31, 2020. Our proposed
determination is therefore based upon the 2018-2020 design value for
each area, which is based upon complete, quality-assured and certified
ozone monitoring data from calendar years 2018, 2019, and 2020. The
data the EPA is using to calculate the 2018-2020 design values for
these areas are provided in the accompanying TSD,
[[Page 42128]]
which can be found in the docket for this rulemaking.
D. Areas Addressed in Proposed Action
This notice includes proposed determinations of attainment by the
attainment date for eight areas in California.\12\ For the 2008 ozone
NAAQS, this proposal addresses the Ventura County area and the Nevada
County (Western part) area (or ``Western Nevada County area''), both of
which are classified Serious for the 2008 ozone NAAQS, with an
attainment date of July 20, 2021. For the 2015 ozone NAAQS, this
proposal addresses the Butte County, Calaveras County, San Luis Obispo
(Eastern part) (or ``Eastern San Luis Obispo''), Sutter Buttes,
Tuloumne County, and Tuscan Buttes areas. These six areas are
classified Marginal for the 2015 ozone NAAQS, with an attainment date
of August 3, 2021. In separate rulemakings, the EPA has recently
proposed determinations of attainment by the attainment date and
findings of failure to attain for the 2008 and 2015 ozone NAAQS for
other areas in California and nationwide.\13\ The EPA omitted some
areas in California from the national notices because the California
Air Resources Board (CARB) had submitted exceptional events
demonstrations for events in 2018 and 2020. The EPA required additional
time to review these claimed exceptional events, as the EPA's actions
on these demonstrations would affect the areas' design values. These
demonstrations and the EPA's evaluation of and action on these
demonstrations is discussed in section II.B of this proposed
rulemaking.
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\12\ This notice does not address all ozone nonattainment areas
in California with attainment dates in 2021. On April 13, 2022, the
EPA published proposed determinations of attainment or failure to
attain for areas across the country classified Serious for the 2008
ozone standards and Marginal for the 2015 ozone standards (see 87 FR
21842 (April 13, 2022) and 87 FR 21825 (April 13, 2022)), including
several areas in California.
\13\ 87 FR 21842 (April 13, 2022) and 87 FR 21825 (April 13,
2022).
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1. Areas Classified Serious for the 2008 Ozone NAAQS
The Ventura County nonattainment area consists of the main portion
of Ventura County (excluding the Channel Islands of Anacapa and San
Nicolas Islands), within California's South Central Coast Air Basin.
The Western Nevada County area consists of the western portion of
Nevada County, within the Mountain Counties Air Basin in northern
California. For more information about these areas, see the TSD) for
California for designations for the 2008 ozone NAAQS, which is included
in the docket for this rulemaking.\14\ For the 2008 ozone NAAQS, the
Ventura County area and Nevada County (Western part) area were
designated nonattainment effective July 20, 2012.\15\
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\14\ See Technical Support Document for 2008 Ozone NAAQS
Designations: California Area Designations for the 2008 Ozone
National Ambient Air Quality Standards.
\15\ 77 FR 30088 (May 21, 2012).
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At the time of designation, in a separate action, the EPA assigned
classification thresholds and attainment dates based on the severity of
each nonattainment area's ozone problem, determined by the area's
design value.\16\ The Ventura County area was initially classified
Serious, with an attainment date of July 20, 2021. The Western Nevada
County area was initially classified Marginal, with an initial
attainment date of July 20, 2015. Effective June 3, 2016, the EPA
determined that the Western Nevada County area had failed to attain the
2008 ozone NAAQS by the July 20, 2015 Marginal attainment date. This
finding resulted in the area being reclassified to Moderate
nonattainment, with a new attainment date of July 20, 2018.\17\
Effective September 23, 2019, the EPA determined that the Western
Nevada County area had failed to attain the 2008 ozone NAAQS by the
July 20, 2018 Moderate attainment date.\18\ This finding resulted in
the area being reclassified to Serious nonattainment, with an
attainment date of July 20, 2021.
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\16\ 77 FR 30160 (May 21, 2012).
\17\ 81 FR 26698 (May 4, 2016).
\18\ 84 FR 44238 (August 23, 2019).
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2. Areas Classified Marginal for the 2015 Ozone NAAQS
The Butte County area consists of the entirety of Butte County, in
California's Sacramento Valley Air Basin, and areas of Indian country
belonging to the Berry Creek Rancheria of Maidu Indians of California,
the Enterprise Rancheria of Maidu Indians of California, the Mechoopda
Indian Tribe of Chico Rancheria, and the Mooretown Rancheria of Maidu
Indians of California. The Calaveras County area consists of the
entirety of Calaveras County, in California's Mountain Counties Air
Basin, and areas of Indian country belonging to the California Valley
Miwok Tribe. The Eastern San Luis Obispo area consists of the eastern
portion of San Luis Obispo County, and lies within California's South
Central Coast Air Basin. The Sutter Buttes area is a mountaintop area
that comprises the area of the Sutter Buttes above 2,000 feet (610
meters) in elevation in Sutter County. The Tuloumne County area
consists of the entirety of Tuolumne County, in the Mountain Counties
Air Basin, and areas of Indian country belonging to the Chicken Ranch
Rancheria of Me-Wuk Indians of California and Tuolumne Band of Me-Wuk
Indians of the Tuolumne Rancheria of California. The Tuscan Buttes area
is a mountaintop area that comprises the area of the Tuscan Buttes
above 1,800 feet (549 meters) in elevation, in Tehama County. For more
information about these areas, see the Technical Support Document (TSD)
for California for designations for the 2015 ozone NAAQS, which is
included in the docket for this rulemaking.\19\ Effective August 3,
2018, the EPA designated the Butte County, Calaveras County, Eastern
San Luis Obispo, Sutter Buttes, Tuloumne County and Tuscan Buttes areas
nonattainment for the 2015 ozone NAAQS.\20\ The areas were classified
Marginal for this standard, and required to attain the 2015 ozone NAAQS
as expeditiously as practicable, but no later than three years from the
date of designation as nonattainment, i.e., August 3, 2021.\21\
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\19\ See CALIFORNIA: Intended Area Designations for the 2015
Ozone National Ambient Air Quality Standards Technical Support
Document (TSD).
\20\ 83 FR 25776 (June 4, 2018).
\21\ See 40 CFR 51.1303(a).
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II. Proposed Determinations of Attainment by the Attainment Date
The EPA is proposing this action to fulfill its statutory
obligation under CAA section 181(b)(2) to determine whether select
ozone nonattainment areas with attainment dates in 2021 attained the
standard by their applicable attainment dates. Specifically, we are
proposing to determine that the Ventura County and Western Nevada
County nonattainment areas attained the 2008 ozone NAAQS by the
attainment date of July 20, 2021 and that the Butte County, Calaveras
County, Eastern San Luis Obispo, Sutter Buttes, Tuolumne County and
Tuscan Buttes areas attained the 2015 ozone NAAQS by the attainment
date of August 3, 2021. As discussed in section I.D of this proposed
rulemaking, the EPA has addressed proposed determinations for other
areas in California and around the country in separate rulemakings.
This proposed determination is based on complete, quality-assured,
certified data for the three-year period before the attainment date for
each area (see design value data presented in Tables 1 and 2 below).
We are also proposing to determine that, if we finalize these
proposed determinations of attainment by the attainment date for the
Nevada County (Western part) and Ventura
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nonattainment areas, then the requirement for the state to have
contingency measures for failure to meet Reasonable Further Progress
(RFP) and failure to attain for the 2008 ozone NAAQS will no longer
apply, because contingency measures would never be needed given the
attainment of the NAAQS. (see section II.D).
A. Determinations of Attainment and the EPA's Analysis of Relevant Air
Quality Monitoring Data
The EPA evaluated air quality data to determine if these
nonattainment areas attained or failed to attain the 2008 and 2015
ozone NAAQS by their applicable attainment dates. The design values for
the 2018-2020 period for the two areas classified Serious for the 2008
ozone NAAQS are shown in Table 1, and the design values for the six
areas classified Marginal for the 2015 ozone NAAQS are shown in Table
2.
Table 1--2008 Ozone NAAQS Serious Nonattainment Area Evaluation Summary
\a\
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2018-2020
2008 NAAQS nonattainment area Design value
(ppm)
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Nevada County (Western part)............................ 0.075
Ventura County.......................................... 0.075
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\a\ The data shown exclude exceedances due to exceptional events.>
Table 2--2015 Ozone NAAQS Serious Nonattainment Area Evaluation Summary
\a\
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2018-2020
2015 NAAQS nonattainment area Design value
(ppm)
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Butte County............................................ \b\ 0.070
Calaveras County........................................ 0.069
San Luis Obispo (Eastern part).......................... 0.070
Sutter Buttes........................................... 0.070
Tuolumne County......................................... 0.070
Tuscan Buttes........................................... 0.070
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\a\ The data shown exclude exceedances due to exceptional events.
\b\ The average percent completeness for one of the monitors in Butte
County, located in Paradise, CA, is 88 percent due to a power loss
caused by a regional California wildfires. Per 40 CFR part 50,
Appendix U, 4(c) CARB submitted a request to the Regional
Administrator for Region 9 to count missing data for 79 days between
November 8, 2018, and January 25, 2019, towards the minimum data
completeness requirements. This request was approved and results in
data completeness over 90 percent on average over the three-year
period of 2018-2020 for the site; therefore, this design value is
considered valid. For more information regarding the Paradise monitor
data certification and the state's request, see the TSD for this
notice and data certification letters included in this docket.
As explained in section I.B, the 2008 ozone NAAQS is met at an
ambient monitoring site when the design value for the area does not
exceed 0.075 parts per million (ppm). The 2015 ozone NAAQS is met at an
ambient monitoring site when the design value for the area does not
exceed 0.070 parts per million (ppm). The design values shown in Table
1 show that the Ventura County and Western Nevada County areas have met
the 2008 ozone NAAQS. The design values shown in Table 2 show that the
Butte County, Calaveras County, Eastern San Luis Obispo County, Sutter
Buttes, Tuolumne County and Tuscan Buttes areas have met the 2015 ozone
NAAQS. The data the EPA used to calculate the 2018-2020 design values
for these areas are provided in the TSD for this action, which can be
found in the docket for this rulemaking. Also found in the docket for
this rulemaking are design value reports from the EPA's AQS database,
and data certification materials from CARB for the relevant years.
B. Exceptional Events Relevant to the EPA's Analysis of Relevant Air
Quality Monitoring Data
On March 22, 2007, the EPA adopted a final rule, ``Treatment of
Data Influenced by Exceptional Events,'' also known as the Exceptional
Events Rule (EER), to govern the review and handling of certain air
quality monitoring data for which the normal planning and regulatory
processes are not appropriate.\22\ On October 3, 2016, the EPA adopted
revisions to this rule.\23\ Under the EER, the EPA may exclude data
from use in determinations of NAAQS exceedances and violations if a
state demonstrates that an ``exceptional event'' (EE) caused the
exceedance or exceedances.\24\ Before the EPA can exclude data from
these regulatory determinations, the state must flag the data in the
EPA's AQS database, notify the EPA of the state's intent to submit an
EE demonstration, and, after public notice and opportunity for comment,
submit a demonstration to the EPA to justify the exclusion. The EPA
considers the demonstration and concurs or nonconcurs with the state's
flag. If the EPA concurs that the exceedance was due to an exceptional
event covered under the EER, the data is excluded from regulatory
consideration, including from a determination of whether the area
attained a NAAQS by its attainment date.
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\22\ 72 FR 13560 (March 22, 2007).
\23\ 81 FR 68216 (October 3, 2016).
\24\ 40 CFR 50.1, 50.14.
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In submittals dated September 3, 2021, September 17, 2021, November
18, 2021, and December 8, 2021, CARB provided documentation for ozone
exceedances that occurred at the monitors listed in Tables 3 and 4
below on multiple days in 2018 and 2020, and which the state had
flagged as due to wildfire ozone exceptional events.\25\
[[Page 42130]]
These events occurred during the July 26-August 10, 2018 and August 18-
October 4, 2020 time periods. A full list of days identified as
exceptional events at each monitor is included in Tables 1 and 2 in the
TSD for this rulemaking.
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\25\ See: (1) letter from Michael Benjamin, D. Env., Chief, Air
Quality Planning and Science Division, CARB to Elizabeth Adams,
Director, Air and Radiation Division, EPA Region 9, dated September
3, 2021, transmitting Exceptional Events Demonstration for Ozone
Exceedances: Northern California July-August 2018 Wildfire Events;
(2) letter from Michael Benjamin, D. Env., Chief, Air Quality
Planning and Science Division, CARB to Elizabeth Adams, Director,
Air and Radiation Division, EPA Region 9, dated September 17, 2021,
transmitting Exceptional Events Demonstration for Ozone Exceedances:
Eastern Portion of San Luis Obispo County, California August 2018
Wildfire Events; (3) letter from Michael Benjamin, D. Env., Chief,
Air Quality Planning and Science Division, CARB to Matthew Lakin,
Acting Director, Air and Radiation Division, EPA Region 9 dated
November 18, 2021, transmitting Exceptional Events Demonstration for
Ozone Exceedances: Northern California 2020 Wildfire Events; and (4)
letter from Michael Benjamin, D. Env., Chief, Air Quality Planning
and Science Division, CARB to Matthew Lakin, Acting Director, Air
and Radiation Division, EPA Region 9 dated December 8, 2021,
transmitting Exceptional Events Demonstration for Ozone Exceedances:
Southern California 2020 Wildfire Events.
Table 3--Exceedances Due to Exceptional Events--2008 Ozone NAAQS
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Number of Number of
2008 NAAQS nonattainment area Monitor exceedances exceedances
excluded in 2018 excluded in 2020
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Nevada County (Western part)............... Grass Valley (06-057-0005)... 11 5
Ventura County............................. Simi Valley (06-111-2002).... 0 5
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Table 4--Exceedances Due to Exceptional Events--2015 Ozone NAAQS
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Number of Number of
2015 NAAQS nonattainment area Monitor exceedances exceedances
excluded in 2018 excluded in 2020
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Butte County............................... Paradise (06-007-0007)....... 11 0
Calaveras County........................... San Andreas--Gold Strike (06- 8 0
009-0001).
San Luis Obispo (Eastern part)............. Red Hills (06-079-8005)...... 5 5
Sutter Buttes.............................. Sutter Buttes (06-101-0004).. 9 2
Tuolumne County............................ Sonora (06-109-0005)......... 11 3
Tuscan Buttes.............................. Tuscan Butte (06-103-0004)... 9 0
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The EPA reviewed the documentation submitted by the State and
concurred with CARB's determinations that the exceedances identified by
CARB in 2018 and 2020 and listed in Tables 1 and 2 in the TSD
accompanying this rulemaking were caused by wildfire ozone exceptional
events, and that these exceedances meet the criteria for exclusion from
regulatory consideration under the EER. Accordingly, the EPA concurred
with the exclusion flags for the days flagged in 2018 and 2020 for
these areas and is excluding the monitored exceedances associated with
these exceptional events from use in determinations of exceedances and
violations, including the evaluation of whether the nonattainment areas
considered in this notice have attained the relevant ozone NAAQS by the
attainment date in accordance with CAA section 181(b)(2)(A).
A concurrence letter notifying CARB of our decision was sent on May
4, 2022.\26\ Included with the letter were TSDs setting forth in detail
the bases for the EPA's concurrences.\27\ The state's demonstrations
and the EPA's concurrence letter and accompanying TSDs are included in
the docket for this rulemaking. Also included in the docket for this
rulemaking are the state's Initial Notification of Intent (INI)
documents, notifying the EPA of the state's intent to submit EE
demonstrations, and the EPA's responses to the INIs.
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\26\ Letter from Elizabeth J. Adams, Director, Air and Radiation
Division, U.S. EPA Region IX, to Sylvia Vanderspek, Chief, Air
Quality Planning Branch, California Air Resources Board, dated May
4, 2022.
\27\ The 16 TSDs associated with this concurrence letter are
organized under the heading, ``Technical Support Documents for EPA
Concurrence on July 26-August 10, 2018 and August 18-October 4, 2020
O3 Exceedances in Northern and Southern California as
Exceptional Events.''
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For the reasons set forth in the concurrence letter and its
enclosures, the EPA is excluding from regulatory consideration data
showing exceedances due to exceptional events at the monitoring sites,
as summarized below in Tables 3 and 4, in this determination of
attainment. For additional information, including a list of each day
excluded at each monitoring site, please see the TSD for this
rulemaking action and the TSDs accompanying the EPA's May 4, 2022
concurrence letter.
C. Effect of This Proposal: Designation and Classification
If the EPA finalizes these proposed determinations, the areas will
remain designated nonattainment, and will retain their current
classifications. A determination of attainment by the attainment date
does not have the effect of redesignating an area to attainment.
Redesignation of an area to attainment requires that an area has met
all applicable requirements of CAA section 110 and Part D, and that the
area has submitted, and the EPA has approved, a redesignation request
and maintenance plan.\28\
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\28\ Memorandum dated September 4, 1992 from John Calcagni,
Director, EPA Air Quality Management Division, to Regional Air
Directors, titled ``Procedures for Processing Requests to
Redesignate Areas to Attainment.''
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D. Effect of This Proposal: Contingency Measures
Based on our proposed finding of attainment by the applicable
attainment date, we are also proposing to find that the CAA requirement
for a state implementation plan (``SIP'') to include contingency
measures to be implemented in the event the area fails to attain
(``attainment contingency measures'') or fails to meet reasonable
further progress milestones (``RFP contingency measures'') will no
longer apply to the Ventura County and Western Nevada County
nonattainment areas for purposes of the 2008 ozone NAAQS.
Under CAA section 172(c)(9), attainment contingency measures must
be implemented only if the area fails to attain by the attainment date.
Therefore, if we finalize the determination that the Ventura County and
Western Nevada County nonattainment areas have attained the 2008 ozone
standard by the applicable attainment date, then attainment contingency
measures for this NAAQS would never be required to be implemented,
regardless of whether the areas continue to attain the
[[Page 42131]]
NAAQS.\29\ This proposed finding will not prevent the EPA, in the event
that an area subsequently violates the NAAQS, from exercising its
authority under the CAA to address violations of the NAAQS.\30\
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\29\ See Bahr v. Regan, 6 F.4th 1059 (July 28, 2021).
\30\ See id. at 1085; see also 42 U.S.C. 7407(d)(3).
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Additionally, the purpose of the RFP requirements under the CAA is
to ensure progress toward attainment of the applicable NAAQS by the
applicable attainment date. Consistent with this purpose, under CAA
section 182(g), ozone nonattainment areas classified ``Serious'' or
higher are required to meet RFP emission reduction ``milestones'' and
to demonstrate compliance with those milestones, except when the
milestone coincides with the attainment date and the standard has been
attained.\31\ This specific statutory exemption from milestone
compliance demonstration (MCD) submittals for areas that attained by
the attainment date indicates that Congress intended that a finding
that an area attained the standard--the finding made in a determination
of attainment by the attainment date--would serve as a demonstration
that RFP requirements for the area have also been met. In other words,
if a Serious or above area has attained the NAAQS by the attainment
date, then the RFP milestones have been sufficiently achieved.
Accordingly, such a finding of attainment by the attainment date would
also indicate that RFP contingency measures could not be triggered and
are therefore no longer necessary.\32\
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\31\ CAA section 182(g)(2).
\32\ See Matusow v. Wheeler, No. 20-72279 (9th Cir. Apr. 21,
2022).
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On February 28, 2022, the EPA found that California's MCD submittal
for Ventura County and Western Nevada County adequately demonstrated
that the applicable 2020 milestone for the 2008 ozone NAAQS had been
met for these areas.\33\ Notably, 2020 is the last applicable milestone
prior to the attainment date for areas classified Serious for the 2008
ozone NAAQS. Therefore, if we finalize the determination that the
Ventura County and Western Nevada County nonattainment areas have
attained the 2008 ozone standard, RFP contingency measures for this
NAAQS would never be required to be implemented, regardless of whether
the area continues to attain the NAAQS. This proposed finding will not
prevent the EPA, in the event that an area subsequently violates the
NAAQS, from exercising its authority under the CAA to address
violations of the NAAQS.\34\
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\33\ Letter from Martha Guzman, Regional Administrator, EPA
Region IX, to Richard W. Corey, Executive Officer, California Air
Resources Board, February 28, 2022.
\34\ See Bahr at 1085; see also 42 U.S.C. 7407(d)(3).
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The state submitted contingency measures as part of the Final 2016
Ventura County Air Quality Management Plan and the Ventura County
portion of the 2018 Updates to the California State Implementation
Plan, and as part of the 2018 Western Nevada County Ozone Plan,
respectively.The EPA will address these measures, as appropriate, in
separate actions, taking into consideration this proposed finding of
attainment by the applicable attainment date and resulting
determination that the attainment and RFP contingency measure
requirements are no longer required for these areas for purposes of the
2008 ozone NAAQS.
III. Environmental Justice Considerations
The EPA believes that this proposed action will not have
disproportionately high or adverse human health or environmental
effects on minority, low income, or indigenous populations. The purpose
of this rule is to determine whether two nonattainment areas in
California attained the 2008 ozone standard by their Serious area
attainment date, and to determine whether six nonattainment areas in
California attained the 2015 ozone standard by their Marginal area
attainment date. These determinations are required under CAA section
181(b)(2) for purposes of implementing the 2008 and 2015 ozone
standards and there are no particular facts or circumstances that would
compel the EPA Administrator to consider information beyond the
statutory criteria.
IV. Summary of Proposal
For the reasons articulated above, we are proposing to determine
that:
The Ventura County and Western Nevada County nonattainment
areas attained the 2008 ozone NAAQS by the July 20, 2021 attainment
date;
The Butte County, Calaveras County, Eastern San Luis
Obispo County, Sutter Buttes, Tuolumne County, and Tuscan Buttes
nonattainment areas attained the 2015 ozone NAAQS by the August 3, 2021
attainment date; and
The CAA requirement for the SIP to provide for contingency
measures for attainment and RFP will no longer apply to the Ventura
County and Western Nevada County nonattainment areas for the 2008 ozone
NAAQS.
We note that we are not proposing a redesignation to attainment for
any areas. The EPA would consider a redesignation to attainment for
these areas following a submittal by the State of a formal
redesignation request and maintenance plan.
V. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at https://www2.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866, Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This proposed 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
This rule does not impose any new information collection burden
under the PRA not already approved by the OMB.
C. Regulatory Flexibility Act
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.
D. Unfunded Mandates Reform Act
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, tribes, or the relationship
between the national government and the states and tribes, or on the
distribution of power and responsibilities among the various levels of
government.
F. Executive Order 13175, Coordination With Indian Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires the EPA to develop an accountable process to ensure
``meaningful and timely input by tribal officials in the development of
regulatory policies that have tribal implications.'' ``Policies that
have tribal implications'' is defined in the
[[Page 42132]]
Executive Order to include regulations that have ``substantial direct
effects on one or more Indian tribes, on the relationship between the
Federal government and the Indian tribes, or on the distribution of
power and responsibilities between the Federal government and Indian
Tribes.''
The EPA has identified tribal areas within three of the
nonattainment areas covered by this proposed rule, that would be
potentially affected by this rule. Specifically, as discussed in
section I.D, the Butte County, Calaveras County, and Tuolumne County
nonattainment areas addressed in this proposal have tribes located
within their boundaries. A full list of impacted tribes is included in
section I.D and in the TSD for this action.
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. If we finalize the determinations of
attainment by the attainment date proposed in this notice, these
determinations would also apply on tribal lands within the
nonattainment areas. The nonattainment areas, including the tribal
lands within the nonattainment areas, would remain designated
nonattainment and would retain their existing classifications.
The EPA intends to notify the potentially affected tribes located
within the boundaries of the nonattainment areas addressed in this
proposal. Because our proposed action, if finalized, would not change
the tribe's existing nonattainment designation or classification, we do
not intend to offer government-to-government consultation on this
proposal, however, we will initiate government-to-government
consultation at the request of any of the tribes.
G. Executive Order 13045, Protection of Children From Environmental
Health Risks 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 concern an environmental
health risk or safety risk.
H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution, or Use
This proposed action is not subject to Executive Order 13211 (66 FR
28355, May 22, 2001) because it is not a significant regulatory action
under Executive Order 12866.
I. National Technology Transfer and Advancement Act
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Population
Executive Order (E.O.) 12898 (59 FR 7629 (Feb. 16, 1994))
establishes federal executive policy on environmental justice. Its main
provision directs federal agencies, to the greatest extent practicable
and permitted by law, to make environmental justice part of their
mission by identifying and addressing, as appropriate,
disproportionately high and adverse human health or environmental
effects of their programs, policies, and activities on minority
populations and low-income populations in the United States. Upon
review, the EPA did not identify any particular facts or circumstances
that would indicate this action will have potential disproportionately
high and adverse human health or environmental effects on minority,
low-income, or indigenous populations. Upon review, the EPA did not
identify any particular facts or circumstances that would indicate this
action will have potential disproportionately high and adverse human
health or environmental effects on minority, low-income, or indigenous
populations.
Furthermore, with respect to the determinations of whether areas
have attained the NAAQS by the attainment date, the EPA has no
discretionary authority to address environmental justice 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.
List of Subjects in 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 and Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: July 8, 2022.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2022-15032 Filed 7-13-22; 8:45 am]
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