[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

[[Page 42129]]

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\
------------------------------------------------------------------------
                                                             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\
------------------------------------------------------------------------
                                                             2018-2020
              2015 NAAQS nonattainment area                Design value
                                                               (ppm)
------------------------------------------------------------------------
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
----------------------------------------------------------------------------------------------------------------
Nevada County (Western part)...............  Grass Valley (06-057-0005)...                 11                  5
Ventura County.............................  Simi Valley (06-111-2002)....                  0                  5
----------------------------------------------------------------------------------------------------------------


                        Table 4--Exceedances Due to Exceptional Events--2015 Ozone NAAQS
----------------------------------------------------------------------------------------------------------------
                                                                                Number of          Number of
       2015 NAAQS nonattainment area                    Monitor                exceedances        exceedances
                                                                             excluded in 2018   excluded in 2020
----------------------------------------------------------------------------------------------------------------
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
----------------------------------------------------------------------------------------------------------------

    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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