[Federal Register Volume 87, Number 194 (Friday, October 7, 2022)]
[Rules and Regulations]
[Pages 60926-60938]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-20458]



[[Page 60926]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-HQ-OAR-2021-0741; FRL-8426-02-OAR]


Determinations of Attainment by the Attainment Date, Extensions 
of the Attainment Date, and Reclassification of Areas Classified as 
Serious for the 2008 Ozone National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA or Agency) is 
finalizing actions pursuant to section 181(b)(2) of the Clean Air Act 
(CAA or Act) for most remaining areas in the country classified as 
``Serious'' for the 2008 8-hour ozone National Ambient Air Quality 
Standards (NAAQS) of 0.075 parts per million (ppm). Applying a uniform 
methodology, the Agency is determining that one Serious area attained 
the standards by the July 20, 2021, applicable attainment date and that 
five Serious areas failed to attain the standards by the applicable 
attainment date. The effect of failing to attain by the applicable 
attainment date is that these areas will be reclassified by operation 
of law to ``Severe'' nonattainment for the 2008 ozone NAAQS on November 
7, 2022, the effective date of this final rule. Pursuant to its 
authority under the CAA, the Agency is establishing new, consistent 
deadlines by which the responsible state air agencies for the 
reclassified areas must submit State Implementation Plan (SIP) 
revisions and implement controls to satisfy the statutory and 
regulatory requirements for Severe areas for the 2008 ozone NAAQS. 
Additionally, in areas reclassified as Severe, where not already 
prohibited, the CAA will prohibit the sale of conventional gasoline and 
require that federal reformulated gasoline instead be sold beginning 1 
year after the effective date of this final rule, November 7, 2023.

DATES: The effective date of this rule is November 7, 2022.

ADDRESSES: The EPA has established a public docket for these ozone 
designations at https://www.regulations.gov under Docket ID No. EPA-HQ-
OAR-2021-0741. Although listed in the docket index, some information is 
not publicly available, e.g., Confidential Business Information or 
other information whose disclosure is restricted by statute. Certain 
other material, such as copyrighted material, is not placed on the 
internet and will be publicly available only in hard copy form.

FOR FURTHER INFORMATION CONTACT: For general questions concerning this 
action, contact Robert Lingard, U.S. EPA, Office of Air Quality 
Planning and Standards, Air Quality Policy Division, C539-01 Research 
Triangle Park, NC 27709; by telephone number: 919-541-5272; email 
address: [email protected]; or Emily Millar, U.S. EPA, Office of 
Air Quality Planning and Standards, Air Quality Policy Division, C539-
01 Research Triangle Park, NC 27709; telephone number: 919-541-2619; 
email address: [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

    The following is an outline of the Preamble.

I. Review of Proposed Actions
    A. Background and Proposed Determinations
    B. Proposed Severe Area SIP Submission and Controls 
Implementation Deadlines
II. Responses to Comments and Final Actions
    A. Determinations of Attainment by the Attainment Date
    B. Determinations of Failure To Attain and Reclassification, and 
Denial of Requested 1-Year Attainment Date Extension
    C. Severe Area SIP Revision Submission and Controls 
Implementation Deadlines
    D. Reformulated Gasoline
III. Environmental Justice (EJ) Impacts
IV. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act (PRA)
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act (UMRA)
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act (NTTAA)
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act (CRA)
    L. Judicial Review

I. Review of Proposed Actions

A. Background and Proposed Determinations

    On March 12, 2008, the EPA revised both the primary and secondary 
NAAQS for ozone to a level of 0.075 ppm to provide increased protection 
of public health and the environment.\1\ When the EPA promulgates a new 
or revised NAAQS, the EPA is required to designate areas as 
nonattainment, attainment, or unclassifiable, pursuant to section 
107(d)(1) of the CAA. The CAA requires the EPA to complete the initial 
area designation process within 2 years of promulgating the NAAQS, with 
authority to extend the deadline for designations decisions by 1 
additional year if the Administrator has insufficient information to 
make the designations within the initial 2-year timeframe. The final 
designations for the 2008 ozone NAAQS were based primarily on certified 
air quality monitoring data from calendar years 2008-2010, i.e., area 
design values as of the time of designations.\2\
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    \1\ See 73 FR 16436 (March 27, 2008).
    \2\ The air quality design value for the 8-hour ozone NAAQS is 
the 3-year average of the annual 4th highest daily maximum 8-hour 
average ozone concentration. See 40 CFR part 50, appendix I.
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    In accordance with CAA section 181(a)(1), each area designated as 
nonattainment for the 2008 ozone NAAQS was also classified by operation 
of law at the same time as the area was designated by the EPA.\3\ In a 
separate Classifications Rule, the ozone nonattainment areas were 
classified as Marginal, Moderate, Serious, Severe, or Extreme, based on 
the severity of their ozone levels, which is also determined by 
available area design values at the time of designation.\4\ Subpart 2 
of the CAA requires ozone nonattainment areas to achieve the NAAQS as 
expeditiously as practicable, but not later than the maximum attainment 
date. Higher classifications, or more polluted areas, receive more time 
to attain compliance. When the EPA determines that an area has failed 
to attain by the maximum attainment date, that area is automatically 
reclassified to the next highest classification, allowing more time for 
compliance with the NAAQS but imposing additional mandatory controls 
under the Act.
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    \3\ See CAA section 181(a)(1), tbl. 1.
    \4\ 77 FR 30160 (May 21, 2012). NRDC v. EPA, 777 F.3d 456 (D.C. 
Cir. 2014) overturned parts of the EPA's Classifications Rule but 
did not impact the EPA's methodology for classifying areas and the 
levels at which the EPA classified the 2008 ozone NAAQS 
nonattainment areas.
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    Consequently, as each attainment date for each 2008 ozone NAAQS 
classification established under the

[[Page 60927]]

statute and regulations has passed, the EPA has made the required 
determinations as to whether areas across the country attained the 
NAAQS by those dates based on the areas' design values as of the 
attainment dates.\5\ As areas across the country have implemented more 
stringent controls and as federal measures have required emission 
reductions of precursors of ozone pollution from mobile sources and 
stationary point sources, air quality in the nonattainment areas under 
the 2008 ozone NAAQS has improved, and areas have come into attainment 
of the NAAQS. For this reason, the EPA has had to address fewer areas 
in each successive notice determining whether areas attained by the 
attainment date, and the number of areas that have failed to attain by 
the attainment date and been reclassified has decreased over time.\6\
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    \5\ See, e.g., 86 FR 26697 (May 4, 2016); 84 FR 44238 (August 
23, 2019).
    \6\ 86 FR 26697 (addressing 36 Marginal areas subject to the 
July 20, 2015, Marginal area attainment date, finding 11 failed to 
attain); 84 FR 44238 (addressing 11 Moderate areas subject to the 
July 20, 2018, Moderate area attainment date, finding 7 failed to 
attain).
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    Accordingly, on April 13, 2022, the EPA proposed actions to fulfill 
its statutory obligation under Clean Air Act (CAA or the Act) section 
181 to determine whether the remaining Serious ozone nonattainment 
areas across the country attained the 2008 ozone NAAQS by July 20, 
2021, the applicable attainment date for such areas.\7\ As noted there, 
the EPA's proposal addressed seven of the nine remaining Serious 
nonattainment areas for the 2008 ozone NAAQS--specifically, (1) 
Chicago-Naperville, IL-IN-WI; (2) Dallas-Fort Worth, TX; (3) Denver-
Boulder-Greeley-Ft. Collins-Loveland, CO; (4) Greater Connecticut, CT; 
(5) Houston-Galveston-Brazoria, TX; (6) Morongo Band of Mission 
Indians; and (7) New York-N. New Jersey-Long Island, CT-NJ-NY. The two 
other Serious nonattainment areas located in California were addressed 
in a separate proposal, which considered exceptional events 
demonstrations submitted by the California Air Resources Board.\8\
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    \7\ See 87 FR 21825 (April 13, 2022).
    \8\ On July 14, 2022, the EPA proposed to determine that Nevada 
County (Western part), CA, and Ventura County, CA, areas attained by 
the 2008 ozone Serious area attainment date (87 FR 42126).
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    First, the EPA proposed to find that the Greater Connecticut, CT, 
nonattainment area attained the 2008 ozone NAAQS by the applicable 
attainment date based on complete, quality-assured and certified ozone 
air quality monitoring data for the 2018-2020 calendar years.
    Second, the EPA proposed to deny the state of Texas's request for a 
1-year extension of the attainment date from July 20, 2021, to July 20, 
2022, for the Houston-Galveston-Brazoria, TX, nonattainment area 
(Houston area). The proposed denial of Texas Commission of 
Environmental Quality's (TCEQ's) request was based, in part, on our 
consideration of air quality trends in the Houston area that indicated 
the area would not timely attain by the extended attainment date, nor 
even qualify for a second 1-year extension of the attainment date. Our 
proposed denial was also based, in part, on our consideration of 
existing pollution burdens for some communities within the area. Taken 
together, these considerations weighed in favor of not delaying the 
imposition of more stringent requirements associated with 
reclassification, and the EPA, therefore, proposed to deny the state's 
request for an extension.\9\
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    \9\ See 87 FR 21825, 21835 (April 13, 2022).
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    Third, the EPA proposed to find that six areas failed to attain the 
2008 ozone NAAQS by the applicable attainment date. The six areas were: 
(1) Chicago-Naperville, Illinois-Indiana-Wisconsin (IL-IN-WI) (Chicago 
area); (2) Dallas-Fort Worth, TX; (3) Denver-Boulder-Greeley-Ft. 
Collins-Loveland, Colorado (CO) (Denver Area); (4) Houston-Galveston-
Brazoria, TX (Houston area); (5) Morongo Band of Mission Indians; and 
(6) New York-North New Jersey-Long Island, Connecticut-New Jersey-New 
York (CT-NJ-NY) (New York Metropolitan area). The proposed 
determination for each of these areas was based upon complete, quality-
assured and certified ozone air quality monitoring data that showed 
that the 8-hour ozone design value (DV) for the area exceeded 0.075 ppm 
for the period 2018-2020, i.e., the area's DV as of the attainment 
date. The EPA proposed that these six areas would be reclassified as 
Severe nonattainment areas by operation of law on the effective date of 
a final action finding that these areas failed to attain the 2008 ozone 
NAAQS by the applicable attainment date for Serious areas.\10\ Since 
EPA issued its proposal in April, the Agency redesignated the Chicago 
area to attainment for the 2008 ozone NAAQS based on attaining air 
quality for the period 2019-2021 and a determination that the other 
statutory criteria for redesignation were met, and, therefore, we are 
not finalizing our proposed determination of failure to attain and 
reclassification for this area.\11\
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    \10\ See CAA section 181(b)(2)(A).
    \11\ Final redesignation actions for the three state portions of 
the Chicago area were effective upon publication in the Federal 
Register: Indiana portion (87 FR 30821, May 20, 2022); Illinois 
portion (87 FR 30828, May 20, 2022); and the Wisconsin portion (87 
FR 21027, April 11, 2022).
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    A summary of the actions proposed for the six areas covered by this 
final action is provided in Table 1 in this action.

                  Table 1--2008 Ozone NAAQS Serious Nonattainment Area Proposed Action Summary
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                                                                                     Area failed to attain 2008
                                                     2008 NAAQS        2020 4th     NAAQS but state requested 1-
                                    2018-2020     attained by the    highest daily      year attainment date
 2008 NAAQS nonattainment area    design value        serious        maximum 8-hr    extension based on 2020 4th
                                   (DV) (ppm)     attainment date    average (ppm)   highest daily maximum 8-hr
                                                                                         average <=0.075 ppm
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Dallas-Fort Worth, TX *........           0.076  Failed to Attain.           0.077  No.
Denver-Boulder-Greeley-Ft.                0.081  Failed to Attain.           0.087  No.
 Collins-Loveland, CO.
Greater Connecticut, CT........           0.073  Attained.........           0.071  N/A.
Houston-Galveston-Brazoria, TX.           0.079  Failed to Attain.           0.075  Yes.
Morongo Band of Mission Indians           0.099  Failed to Attain.           0.103  No.

[[Page 60928]]

 
New York-N. New Jersey-Long               0.082  Failed to Attain.           0.080  No.
 Island, CT-NJ-NY.
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* In a letter to the Texas Commission on Environmental Quality dated June 30, 2021, EPA Region 6 indicated that
  it did not concur on EE demonstrations for the Dallas-Fort Worth area submitted to the EPA on May 28, 2021; a
  copy of this letter and the supporting EPA technical review is provided in the docket for this rulemaking.

B. Proposed Severe Area SIP Submission and Controls Implementation 
Deadlines

    In the April 2022 proposal, the EPA also solicited comment on 
adjusting the due dates, in accordance with CAA section 182(i), for SIP 
submissions and implementation deadlines for all SIP requirements that 
would apply to newly reclassified Severe areas (see CAA sections 
172(c)(1) and 182(a)(b)(c) and (d), and 40 CFR 51.1100 et seq.). Under 
CAA section 181(b)(2), Serious nonattainment areas that fail to attain 
the 2008 ozone NAAQS by the applicable attainment date for such areas 
will be reclassified as Severe by operation of law upon the effective 
date of the final reclassification action. Each responsible state air 
agency must subsequently submit a SIP revision that satisfies the air 
quality planning requirements for a Severe area under CAA section 
182(d), and they must attain the standard by July 20, 2027 (within 15 
years of initial designation). For areas reclassified as Severe, SIP 
submissions must apply the more stringent major source threshold of 25 
tons per year (tpy) \12\ for reasonably available control technology 
(RACT) and nonattainment new source review (NNSR), and the more 
stringent NNSR emissions offset ratio of 1.3:1.\13\ In order to fulfill 
their Severe area SIP submission requirements, states may, where 
appropriate, certify that existing SIP provisions for an area are 
adequate to address one or more Severe area requirement(s). Such 
certifications must be submitted as SIP revisions.
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    \12\ ``For any Severe Area, the terms `major source' and `major 
stationary source' include (in addition to the sources described in 
section 7602 of this title) any stationary source or group of 
sources located within a contiguous area and under common control 
that emits, or has the potential to emit, at least 25 tons per year 
of volatile organic compounds.'' CAA section 182(d).
    \13\ See CAA section 182(d)(2). If a state's plan requires all 
existing major sources in the nonattainment area to use best 
available control technology for VOCs consistent with CAA section 
169(3), the required offset ratio is 1.2 to 1.
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    On July 20, 2012, when final nonattainment designations became 
effective for the 2008 ozone NAAQS, states responsible for areas 
initially classified as Severe were required to prepare and submit SIP 
revisions by deadlines relative to that effective date. For those 
areas, the submission deadlines ranged from 2 to 10 years after July 
20, 2012, depending on the SIP element (e.g., 2 years for the RACT SIP 
and vehicle miles traveled (VMT) offset demonstration, 4 years for the 
attainment demonstration, 10 years for the CAA section 185 fee 
program). Initial Severe areas were also required to implement RACT as 
expeditiously as practicable but no later than January 1 of the 5th 
year after July 20, 2012 (i.e., January 1, 2017). Those deadlines have 
all now passed, and the EPA proposed to use its discretion under CAA 
section 182(i) to adjust the SIP deadlines that would otherwise 
apply.\14\
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    \14\ For additional discussion on certain Severe area 
requirements, see 87 FR 21825 (April 13, 2022).
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1. Submission Deadlines for SIP Revisions
    The EPA proposed a SIP submission deadline of 18 months after the 
effective date of reclassification to address the CAA section 185 fee 
program, VMT offset demonstration, and reasonably available control 
measures (RACM) and RACT requirements. This deadline is consistent with 
that for all other Severe area plan elements required under CAA 
sections 172(c)(1) and 182(a)(b)(c) and (d), and 40 CFR 51.1100 et seq.
2. Implementation Deadline for Required Controls
    As required by 40 CFR 51.1108(d) the state must provide for 
implementation of all control measures needed for attainment no later 
than the beginning of the attainment year ozone season.\15\ Further, 
the EPA proposed that any controls that air agencies determine are 
needed for meeting CAA requirements must be implemented as 
expeditiously as practicable but no later than 18 months from the 
proposed SIP submission deadline. These controls include any identified 
RACT, and any needed transportation control strategies or 
transportation control measures (TCMs) indicated in the VMT offset 
demonstration. The EPA requested comment on (1) aligning the 
implementation deadlines for RACT and transportation-related controls; 
(2) on requiring that any controls needed for meeting reasonable 
further progress (RFP) or timely attainment of the 2008 ozone NAAQS be 
implemented as expeditiously as practicable but no later than 18 months 
after the proposed SIP submission deadline, and (3) on providing an 
overall 36-month schedule for SIP submission and controls 
implementation.
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    \15\ ``Attainment year ozone season'' is defined as the ozone 
season immediately preceding a nonattainment area's maximum 
attainment date (see 40 CFR 51.1100(h)), with the attainment year 
being the calendar year corresponding with that final ozone season 
for determining attainment.
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II. Responses To Comments and Final Actions

    The public comment period for the EPA's April 2022 proposal closed 
on June 13, 2022, and included a public hearing held on May 9, 2022. 
The comments received during this period and the public hearing 
transcript can be found in the docket for this action. A majority of 
commenters supported the EPA's proposal to determine that one area 
attained the 2008 ozone NAAQS by the applicable attainment date, to 
deny a requested 1-year attainment date extension for the Houston area, 
and to reclassify to Severe the nonattainment areas that did not attain 
the 2008 ozone NAAQS by the applicable attainment date and do not 
qualify for an attainment date extension. Our final

[[Page 60929]]

actions are summarized in Table 2 of this action.

                       Table 2--2008 Ozone Serious Nonattainment Area Final Action Summary
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                                                                                   Extension of the serious area
 2008 NAAQS nonattainment area       Attained by the      Failed to attain by the   attainment date to July 20,
                                     attainment date          attainment date                   2022
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Dallas-Fort Worth, TX..........                                      X
Denver-Boulder-Greeley-Ft.                                           X
 Collins-Loveland, CO.
Greater Connecticut, CT........             X
Houston-Galveston-Brazoria, TX.                                      X
Morongo Band of Mission Indians                                      X
New York-N. New Jersey-Long                                          X
 Island, CT-NJ-NY.
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    The EPA is responding to certain comments in this section of the 
preamble. The remaining comments and the EPA's responses can be found 
in the Response to Comments document, which is found in the docket for 
this rulemaking. To access the Response to Comments document, please go 
to http://www.regulations.gov, and search for Docket No. EPA-HQ-OAR-
2021-0741, or contact the person listed in the FOR FURTHER INFORMATION 
CONTACT section.

A. Determinations of Attainment by the Attainment Date

    Pursuant to section 181(b)(2)(A) of the CAA and 40 CFR 51.1103 and 
after considering comments received, the EPA is making a final 
determination that the Greater Connecticut Serious nonattainment area 
listed in Table 2 of this action attained the 2008 ozone NAAQS by the 
applicable attainment date of July 20, 2021. Once effective, this final 
action satisfies the EPA's obligation pursuant to CAA section 
181(b)(2)(A) to determine, based on an area's air quality as of the 
attainment date, whether the area attained the standard by the 
applicable attainment date. The effect of a final determination of 
attainment by an area's attainment date is to discharge the EPA's 
obligation under CAA section 181(b)(2)(A), and to establish that, in 
accordance with CAA section 181(b)(2)(A), the area will not be 
reclassified for failure to attain by the applicable attainment date.
    This determination of attainment does not constitute a 
redesignation to attainment as provided for under CAA section 
107(d)(3). The EPA may redesignate an area if the state meets 
additional statutory criteria, including the EPA approval of a state 
plan demonstrating maintenance of the air quality standard for 10 years 
after redesignation, as required under CAA section 175A. As for all 
NAAQS, the EPA is committed to working with states that choose to 
submit redesignation requests for areas that are attaining the 2008 
ozone NAAQS.
    The EPA did not receive adverse comments on its proposed 
determination of attainment for the Greater Connecticut area. For a 
discussion of additional comments received on the proposal and 
responses to those comments, please see the Response to Comments 
document in the docket for this action.

B. Determinations of Failure To Attain and Reclassification, and Denial 
of Requested 1-Year Attainment Date Extension

    Pursuant to CAA section 181(b)(2) and after considering comments 
received, the EPA is finalizing its proposed determinations that the 
five Serious nonattainment areas listed in Table 2 of this action 
failed to attain the 2008 ozone NAAQS by the applicable attainment date 
of July 20, 2021. Therefore, upon the effective date of this final 
action, these five areas will be reclassified, by operation of law, as 
Severe for the 2008 ozone NAAQS. Once reclassified as Severe, these 
areas will be required to attain the standard ``as expeditiously as 
practicable'' but no later than 15 years after the initial designation 
as nonattainment, which in this case would be no later than July 20, 
2027. If any of these areas attains the 2008 ozone NAAQS, the relevant 
state may request redesignation to attainment, provided the state can 
demonstrate that the criteria under CAA section 107(d)(3)(E) are 
met.\16\
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    \16\ More information about redesignation is available at 
https://www.epa.gov/ozone-pollution/redesignation-and-clean-data-policy-cdp.
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    Included in these five areas is the Houston area, for which the EPA 
is finalizing its proposed denial of the TCEQ request to extend the 
Houston Serious area attainment date by one year from July 20, 2021, to 
July 20, 2022.\17\ A majority of commenters supported the EPA's 
proposal to deny the Houston area attainment date extension request, to 
determine that the area failed to attain by the applicable attainment 
date, and to reclassify the area as Severe. We also received an adverse 
comment from TCEQ on our proposed action, which is addressed in the 
Response to Comments document in the rulemaking docket for this action. 
As detailed in the Response to Comments document, TCEQ acknowledged 
that the CAA grants the EPA discretion in acting on attainment date 
extension requests, but urged the EPA to grant Texas's request on the 
basis that the area had met the two qualifying criteria. We think it is 
reasonable, given the statute's goal of expeditious attainment of the 
NAAQS in order to protect public health and the environment, to 
consider available information that demonstrates that Houston could not 
have attained by an extended attainment date or qualified for a second 
extension, and that indicates that the population impacted by the 
Agency's decision already bears a disproportionate burden of pollution. 
Specifically, as discussed in the proposal, the EPA's analysis of 
existing pollution burden found that there are communities residing and 
working near violating ozone monitors in the Houston area and the 
Houston Ship Channel that are exposed to a significant and 
disproportionate burden of ozone pollution and other sources of 
pollution (e.g., vehicle traffic and particulate matter emissions) 
compared to the greater Houston area and the U.S. as a whole.\18\ The 
existing pollution burden on the population that would be impacted by 
the EPA's action on the state's request is a relevant consideration 
where the EPA is exercising its judgment about whether or not to issue 
a determination that

[[Page 60930]]

would have the effect of immediately requiring more stringent pollution 
controls or providing additional time to see whether air quality would 
resolve without those controls.
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    \17\ Baer, Tonya, Director, Office of Air, TCEQ. ``Request for a 
One-Year Extension of the Houston-Galveston-Brazoria (HGB) 2008 
Eight-Hour Ozone Standard Attainment Date.'' April 5, 2021.
    \18\ See 87 FR 21825, 21834 (April 13, 2022).
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    The EPA recognizes that delays in issuing this final rulemaking 
have had the practical effect of providing an extra year for the 
Houston area to attain the 2008 ozone NAAQS, because the contemplated 
extended attainment date would have been July 20, 2022. Regardless, the 
EPA continues to have an obligation to act on TCEQ's request, and the 
basis articulated in the proposal and in the RTC for denying TCEQ's 
request is reasonable and consistent with the Agency's analytic 
approach when evaluating requests from other states seeking extensions 
under the same statutory provision for other ozone NAAQS.\19\ We also 
note that certified data now available for the period 2019-2021 confirm 
the preliminary assessment on air quality trends in the proposal, 
showing that the Houston area did not attain by the extended date, and 
does not qualify for a second extension. The import of the air quality 
information in the record alone would support a denial. The EPA is, 
therefore, finalizing its denial of TCEQ's requested 1-year attainment 
date extension for the Houston area based upon the Agency's analysis of 
air quality trends. Denying the extension request and determining that 
the Houston area failed to attain the 2008 ozone NAAQS by its July 20, 
2021, attainment date will, by operation of law, include the Houston 
area among the other areas being reclassified to Severe for the 2008 
ozone NAAQS and trigger the deadlines associated with the set of more 
protective attainment planning and control requirements for those 
areas.
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    \19\ See 87 FR 21842 (April 13, 2022).
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    With respect to the remaining areas included in this final action, 
a majority of commenters supported the EPA's proposal to determine that 
they failed to attain by the applicable attainment date and to 
reclassify those areas as Severe. We also received several adverse 
comments on our proposed determinations, some of which are addressed 
below. For a discussion of additional comments received on the proposal 
and responses to those comments, please see the Response to Comments 
document in the rulemaking docket for this action.
    Comment: Several commenters opposed reclassifying the Denver area 
to Severe nonattainment, claiming that the environmental benefits of 
the action do not outweigh the economic costs. One commenter claimed 
that the EPA is ``required to determine whether the benefits of a 
regulation justify the costs'' and that the EPA should not adopt the 
regulation because ``the programs required by a downgrade will not 
achieve any reduction in ozone.'' The commenter claims that E.O. 12866 
gives the EPA an option to decline to reclassify the area, and that the 
E.O. requires the EPA to assess the costs and benefits of the 
reclassification as a ``significant regulatory action'' because it will 
cost individuals and companies in Colorado more than $1 billion 
annually. The commenter also stated that it is time for the EPA to 
consider alternative regulations that would ``give Colorado an 
incentive to achieve the ozone standard, while imposing the least 
burden on society'' and cited to E.O. 12866 for performance objectives 
rather than programs.
    Response: The EPA disagrees with these comments. CAA section 
181(b)(2)(A) states that ``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. 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 the higher of--(i) the next higher classification for the area or 
(ii) the classification applicable to the area's design value . . . .'' 
This provision unambiguously requires the EPA to determine whether an 
area timely attained ``based on the area's design value (as of the 
attainment date).'' The area's design value as of its attainment date 
is the sole criterion that the EPA is permitted to consider in 
determining whether an area has timely attained. With respect to 
reclassification, the statute is similarly restrictive: any area that 
the Administrator finds has not attained by its attainment date shall 
be reclassified by operation of law. The Act exempts from 
reclassification Severe or Extreme areas and limited other areas (e.g., 
an area that can demonstrate, under CAA section 179B(b), that the area 
would have attained by the applicable attainment date, but for 
emissions emanating from outside of the United States). Outside of 
limited explicit exceptions, Congress made the judgment that 
reclassification would apply to areas that fail to attain the NAAQS on 
time and left no determination or even action for the EPA to carry out. 
The reclassification happens ``by operation of law'' when the EPA makes 
the determination that an area has failed to attain by its attainment 
date, and there is no Agency judgment or consideration of factors--
cost, benefit, or otherwise. Cf. Sierra Club v. EPA, 294 F.3d 155 (D.C. 
Cir. 2002) (rejecting the EPA's decision not to reclassify a downwind 
nonattainment area that failed to timely attain due to transported 
pollution from upwind states). Accordingly, the EPA does not consider 
cost in the reclassification of areas that fail to attain the ozone 
standard. We also do not agree that E.O. 12866 provides the EPA with 
any option not to reclassify. Nothing in the E.O. purports to override 
the mandatory duty established in the Clean Air Act, nor could it. E.O. 
12866 (see 58 FR 51735, October 4, 1993) gives the Office of Management 
and Budget (OMB) the authority to review regulatory actions that are 
categorized as ``significant'' under section 3(f) of E.O. 12866. In 
their corresponding E.O. 12866 guidance, OMB listed types of regulatory 
actions that are exempt from OMB review, including ``area designations 
of air quality planning purposes.'' \20\ The EPA has historically 
interpreted its ozone determination of attainment actions to fall in 
this exempted category because these action involve determinations 
based on air quality, responding to the CAA requirement to determine 
whether areas designated nonattainment for an ozone NAAQS attained the 
standard by the applicable attainment date, and to take certain steps 
for areas that failed to attain.\21\ Findings of failure to attain 
under CAA section 181(b)(2) are based on air quality considerations, 
and reclassifications must occur by operation of law in light of 
certain air quality conditions. The statutory requirements are clearly 
defined with respect to the differently classified areas, and those 
requirements are automatically triggered by classifications that, in 
turn, are triggered by air quality values. Congress has not authorized 
or directed the EPA to consider cost in this process, and E.O. 12866 
does not provide any further authority or requirement to do so. With 
respect to the concern that the reclassification will cost individuals 
and companies in Colorado more than $1 billion annually, the commenter 
bases that estimate on information he obtained related to the cost of 
providing federal RFG in the Denver area. We respond to this comment in 
detail in the Response to Comments document in the docket for this 
action. In that response

[[Page 60931]]

we conclude that the cost of implementing the federal RFG program in 
the Denver area will be approximately $13.3 million per year.
---------------------------------------------------------------------------

    \20\ See ``Guidance for Implementing E.O. 12866'' (October 12, 
1993) at p. 8 and Appendix C; available at https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/inforeg/eo12866_implementation_guidance.pdf.
    \21\ See, e.g., 81 FR 26697, 26707 (May 4, 2016).
---------------------------------------------------------------------------

    Comment: Several commenters opposed the reclassification of the 
Denver area because Colorado has undertaken many efforts to reduce 
ozone precursor emissions. One commenter asserted that the economic 
impacts from reclassifying the area will be ``felt across communities 
and industries for years to come.'' Two commenters pointed to VMT 
growth offset requirements for Severe nonattainment areas, with one 
contending that the ``EPA should not mandate air quality measures that 
Colorado residents have so recently rejected.'' Two commenters stated 
that the EPA should use incentives, not mandates, to improve air 
quality. Commenters pointed to federal actions that will reduce ozone 
as justification for not reclassifying the Denver area.
    Response: The EPA agrees that the state has taken significant 
regulatory steps to reduce ozone precursor emissions but disagrees that 
these steps are a basis to refrain from reclassifying the area. 
Regardless of ozone trends or of the state's actions to date, the EPA 
has a mandatory duty under CAA section 181(b)(2)(A) to determine 
whether the Denver area attained by its July 20, 2021, attainment date 
based on the area's design value as of that date. As previously stated, 
the CAA does not allow the EPA to consider economic impacts in 
assessing whether an area has attained the NAAQS by the applicable 
date. Instead, CAA section 181(b)(2) requires the EPA to make the 
determination of attainment based solely on the area's DV, which is 
derived entirely from monitored air quality data.
    Regarding VMT growth offsets, CAA section 182(d)(1)(A) requires 
that Severe and Extreme ozone nonattainment areas identify and adopt 
specific and enforceable transportation control measures to offset any 
growth in emissions associated with an increase in VMT. The first steps 
for addressing the CAA's VMT offset provision are for the state to 
determine if there has been any growth in emissions due to increased 
VMT and, if there has been an increase in emissions, to quantify the 
magnitude of that increase. If there is any increase in emissions, the 
state would select the control measures to offset the identified growth 
in emissions. The EPA has issued guidance on these calculations and 
provided a tool to be used with the MOVES3 emission factor model.\22\ 
\23\ In this final notice, the EPA is not prescribing that any specific 
measures be adopted by areas being reclassified as Severe, nor would it 
be appropriate to do so. The nonattainment area requirements in the CAA 
include a range of measures to reduce emissions that are to be 
implemented throughout the entire nonattainment area. The VMT offset 
guidance referenced above provides for including emission reductions 
from ``clean car technology'' in demonstrations for meeting CAA section 
182(d)(1)(A) requirements. State air agencies continue to have 
flexibility in how they can tailor and implement emission reduction 
measures within each nonattainment area in order to attain the standard 
as expeditiously as practicable.
---------------------------------------------------------------------------

    \22\ Implementing Clean Air Act Section 182(d)(1)(A): 
Transportation Control Measures and Transportation Control 
Strategies to Offset Growth in Emissions Due to Growth in Vehicle 
Miles Travelled, EPA-420-B-12-053, Aug. 2012; available at https://www.epa.gov/state-and-local-transportation/vehicle-miles-travelled-vmt-offset-demonstration-guidance.
    \23\ The MOVES3 VMT offset tool can be found under ``Tools to 
develop special case MOVES3 inputs'' at https://www.epa.gov/moves/tools-develop-or-convert-moves-inputs.
---------------------------------------------------------------------------

C. Severe Area SIP Submission and Controls Implementation Deadlines

    Pursuant to CAA section 182(i) and after considering comments 
received, the EPA is finalizing, with one exception for the CAA section 
185 fee program, its proposed deadlines for Severe area SIP revisions, 
and implementation of RACT and any needed transportation control 
strategies or TCMs indicated in the VMT offset demonstration. 
Specifically, SIP revisions required for all newly reclassified Severe 
areas must be submitted no later than 18 months after the effective 
date of reclassification. Any controls that air agencies determine are 
needed for meeting CAA requirements must be implemented as 
expeditiously as practicable but no later than 18 months from the SIP 
submission deadline, which would provide an overall 36-month schedule 
for SIP submission and controls implementation for reclassified Severe 
areas. For the CAA section 185 fee program SIP, the EPA is finalizing a 
submittal deadline of 36 months after the effective date of 
reclassification.
    The EPA received several significant adverse comments on our 
proposed deadlines, which are addressed as follows. For a discussion of 
additional comments received on the proposal and responses to those 
comments, please see the Response to Comments document in the docket 
for this action.
    Comment: The EPA received several comments requesting that we 
modify the SIP submission and/or controls implementation deadlines for 
reclassified Severe areas. One commenter considered the overall 36-
month schedule as adequate for regulatory development and SIP 
preparation and submission, but insufficient for new major sources to 
plan, budget and install new emissions controls, and requested 48-60 
months to allow the owners of affected sources to comply. Another 
commenter stated that any control measures that can be implemented 
prior to the 2026 ozone season will contribute to compliance of the 
standard by the July 20, 2027, attainment date, and requested that the 
EPA extend the controls implementation deadline to the beginning of 
their area's attainment year ozone season (March 1, 2026) in order to 
maximize the time to get additional reductions implemented before the 
final ozone season used for compliance with the ozone NAAQS.
    Response: The EPA disagrees with the commenters' requested 
extensions to the proposed deadlines for SIP submissions and controls 
implementation, which we contend would unduly delay emissions 
reductions and improvements to air quality in reclassified Severe 
areas. The request of 48-60 months to allow for source compliance did 
not specify whether this time allowance was inclusive of, or in 
addition to, their suggested 36 months for SIP preparation and 
submission. Assuming an effective date for this final action in 
November 2022, and the commenter's request for 48-60 months for SIP 
submission and implementation, the requested schedule would extend the 
controls implementation deadline to almost the end of the Severe area 
attainment year in the case of 48 months (i.e., November 2026); and 
past the July 20, 2027, Severe area attainment date in the case of 60 
months (i.e., November 2027). The EPA's overall 36-month schedule would 
result in a controls implementation deadline of approximately November 
2025, shortly before the beginning of Severe area attainment year and 
just a few months before the other commenter's requested implementation 
deadline of March 1, 2026.
    The EPA maintains that the adopted SIP submission and 
implementation schedule balances the goals of robust SIP revisions, 
expeditious and meaningful emissions reductions, and consistency across 
submissions (per CAA section 182(i)) for areas reclassified as Severe. 
SIP revisions to

[[Page 60932]]

address RACM/RACT requirements and other required Severe area plan 
elements will be due 18 months after the effective date of 
reclassification, which provides more planning time than the submission 
deadlines in previous 2008 ozone reclassification actions 
(approximately 12 months after the effective date of reclassification) 
and could contribute to states determining that additional controls are 
reasonable (compared to a shorter planning timeframe). We do not find 
it appropriate to provide a SIP submission deadline of 36 months from 
the effective date of this final action and an overall schedule of 48-
60 months for controls implementation because this would unduly delay 
implementation late into the Severe area DV period (2024-2026) or 
beyond the Severe area attainment date of July 20, 2027. Further, the 
EPA considers it reasonable to require that any controls determined as 
needed for meeting CAA requirements must be implemented as 
expeditiously as practicable but no later than 18 months from the 
proposed SIP submission deadline. This implementation deadline in 
November 2025 will correspond approximately with the beginning of the 
Severe are attainment year (January 1, 2026) and will treat areas with 
varying ozone season start dates consistently per CAA section 182(i).
    Comment: The EPA received a comment from an air agency asserting 
that the proposed 18-month deadline for submittal of CAA section 185 
penalty fee programs, at the same time as the attainment demonstration, 
RFP, and RACT SIP revisions, is unnecessary and imposes undue burden on 
states. They further argue that it is unnecessary, noting that for 
initial Severe areas, the Act specifically sets a later deadline for 
the CAA section 185 fee program than for the other elements. The 
commenter suggests the EPA provide at least an additional 18 months, 
because implementation of a CAA section 185 fee program is a penalty 
for failing to attain the NAAQS by the attainment date. The program 
therefore could not become effective until the calendar year following 
the July 20, 2027, attainment date, at the earliest. Therefore, 
extending the submittal deadline would not create significant 
implementation issues and would not significantly limit the EPA's 
review time to act on the submittal prior to the attainment date.
    Response: As noted previously, the EPA is finalizing a later 
submittal date for the CAA section 185 fee program than what was 
proposed, setting the due date 3 years from the effective date of 
reclassification (18 months longer than the proposed deadline). The EPA 
agrees with the commenter that under this new deadline it will still be 
possible to establish approved CAA section 185 fee programs for 
reclassified areas ahead of when they are needed, which in this case is 
the Severe attainment date of July 20, 2027. The new due date would be 
in approximately mid-2025, nearly 2 years ahead of the attainment date. 
Although this is not as much lead time as the CAA provides for initial 
Severe areas, the CAA allows the EPA to adjust deadlines as appropriate 
for reclassified areas per CAA section 182(i), and we agree that this 
deadline will not create implementation issues or unreasonably limit 
EPA's review time ahead of the attainment date. Although we do not 
believe the development of the CAA 185 program will pose an undue 
burden on states, we do believe, in light of related comments about the 
challenges with completing other Severe area requirements within the 18 
months provided, that allowing more time for the CAA section 185 
program could allow more focused attention to those other elements in 
the first 18 months following reclassification. To the degree that 
states want to take advantage of the administrative efficiency of 
adopting the CAA section 185 program element along with other required 
Severe area SIP elements, which was a benefit the EPA noted at 
proposal, they would still have the option to submit their CAA section 
185 programs with the other elements.

D. Reformulated Gasoline

    As discussed in the April 2022 proposal, the CAA prohibits the sale 
of conventional gasoline in any ozone nonattainment area that is 
reclassified as Severe and requires that federal reformulated gasoline 
(RFG) must be sold instead.\24\ The prohibition on the sale of 
conventional gasoline takes effect one year after the effective date of 
the reclassification (see CAA section 211(k)(10)(D); 211(k)(5)), 
November 7, 2023. The primary difference between conventional gasoline 
and federal RFG is that federal RFG must comply with a maximum Reid 
Vapor Pressure (RVP) per-gallon standard of 7.4 pounds per square inch 
during the summer season.\25\ \26\ Higher maximum RVP per-gallon 
standards apply to conventional gasoline during the summer season.\27\ 
Also, as discussed in the proposal, the reclassification of certain 
areas to Severe will not result in any changes to where federal RFG is 
sold because the sale of federal RFG is already required in the 
following nonattainment areas: New York Metropolitan area, the Houston 
area, and the Morongo Band of Mission Indians area. A SIP revision is 
not required in order for the prohibition on the sale of conventional 
gasoline to take effect.
---------------------------------------------------------------------------

    \24\ See 87 FR 21825 (April 13, 2022).
    \25\ See 40 CFR 1090.215(a)(3).
    \26\ The summer season means the period from June 1 through 
September 15 for retailers and wholesale purchaser-consumers, and 
May 1 through September 15 for all other persons, or an RVP control 
period specified in a SIP if it is longer (see 40 CFR 1090.80).
    \27\ See 40 CFR 1090.215(a)(1) and (2).
---------------------------------------------------------------------------

    The EPA proposed to reclassify the Chicago area as Severe for the 
2008 ozone NAAQS in the April 2022 proposal. However, the area attained 
the 2008 ozone NAAQS based on 2019-2021 air quality data, and as 
discussed in Section I of this action, the EPA has redesignated the 
Chicago area to attainment since its April proposal. Therefore, federal 
RFG is not required for this area for the 2008 ozone NAAQS, although 
federal RFG continues to be required in the area for other reasons.
    The reclassification of the Dallas-Fort Worth area as Severe 
results in the current federal RFG area being expanded to include all 
10 counties in the 2008 ozone NAAQS nonattainment area effective one 
year after the effective date of this final rule.\28\ See Section I of 
this action for more information on this area.
---------------------------------------------------------------------------

    \28\ The sale of conventional gasoline is already prohibited in 
Collin, Dallas, Denton, and Tarrant Counties because Texas chose to 
opt the 4-county Dallas-Fort Worth 1-hour ozone nonattainment area 
into federal RFG (57 FR 46316, October 8, 1992, and 40 CFR 
1090.285(c)).
---------------------------------------------------------------------------

    The reclassification of the Denver area as Severe for the 2008 
ozone NAAQS results in the prohibition of the sale of conventional 
gasoline throughout the entire nonattainment area under CAA section 
211(k)(10)(D) and section 211(k)(5) effective 1 year after the 
effective date of this final rule, November 7, 2023. This is a new 
requirement for the area as federal RFG is not currently required to be 
sold in any part of the Denver 2008 ozone NAAQS nonattainment area.
    The EPA received comments on the CAA requirement to sell federal 
RFG in the Denver area, which are addressed as follows. For a 
discussion of additional comments received on the proposal and 
responses to those comments, please see the Response to Comments 
document in the docket for this action.
    Comment: One commenter raised concerns about making the transition 
from conventional gasoline to federal RFG if the transition was 
required to occur during the summer of 2023. The commenter noted that 
such a transition presented two challenges: first, because it would 
occur during the summer, which is peak season for gasoline

[[Page 60933]]

demand and a time during which the current pipeline system supplying 
the market operates at a very high utilization rate, and second, 
because requiring RFG to be implemented during the summer of 2023 would 
not provide fuel suppliers with sufficient time to complete necessary 
projects to implement the transition to RFG. The commenter pointed to 
several actions that fuel suppliers need to complete in order to supply 
RFG to the Denver area including analyzing their ability to produce 
fuel choices, their unique market structure, and the existing fuel 
distribution network and obtaining permits for construction projects 
and rail loading. The commenter opined that the 1-year clock for the 
implementation of RFG should start after the end of the 2022 summer 
fuel season ends on September 15, 2022.
    Response: The EPA understands the concerns that the commenter 
raised concerning the challenges that would be presented if the 
transition to RFG were to occur during the summer season that runs from 
June 1 to September 15 for wholesale purchaser-consumers and from May 1 
to September 15 for all other persons.\29\ The EPA also understands the 
type of analyses and work that will need to be completed in order to 
supply RFG to the Denver area. With respect to areas that are 
reclassified as Severe for the ozone NAAQS, CAA section 211(k)(10)(D) 
states that, ``Effective one year after the reclassification of any 
ozone nonattainment area as a Severe ozone nonattainment area under 
section 7511(b) of this title, such Severe area shall also be a 
``covered area'' for purposes of this subsection.'' \30\ The 
reclassification of the Denver area to Severe for the 2008 ozone NAAQS 
will not be effective until after the 2022 summer season for fuel sales 
ends on September 15, 2022. While the CAA requires that Denver be an 
RFG covered area one year after the effective date of the 
reclassification, the RFG maximum Reid Vapor Pressure (RVP) per-gallon 
standard of 7.4 pounds per square inch (psi) will not apply for the 
first time until June 1, 2024, for wholesale purchaser-consumers and 
May 1, 2024, for all other persons.\31\ This will provide fuel 
suppliers with approximately 18 months after the effective date of the 
reclassification to complete preparations for the sale of RFG in the 
Denver area. It will also be approximately two years after EPA proposed 
to reclassify the Denver area as Severe for the 2008 ozone NAAQS.\32\
---------------------------------------------------------------------------

    \29\ See 40 CFR 1090.80 for the definition of ``summer season.''
    \30\ See CAA section 211(k)(10)(D).
    \31\ Other requirements that apply to RFG such as benzene and 
sulfur content are identical to requirements that apply to 
conventional gasoline.
    \32\ See 87 FR 21825 (April 13, 2022).
---------------------------------------------------------------------------

III. Environmental Justice (EJ) Impacts

    As discussed in Section II.B of this action, the EPA is finalizing 
its proposal to deny a request for a 1-year attainment date extension 
for the Houston area and to determine that the area failed to attain 
the 2008 ozone NAAQS by the attainment date. Denying the extension 
request is based on our assessment of air quality trends in the Houston 
area. Given our findings that the area is not likely to attain by an 
extended attainment date or qualify for a second extension, we also 
considered the impact of our action on existing air pollution burdens 
in the area. Screening-level EJ analyses indicate an already 
disproportionate air pollution burden for communities near the Houston 
Ship Channel and communities around violating ozone regulatory monitor 
sites in the Houston area. The area's reclassification to Severe will 
result in more timely application in this area of the Act's more 
stringent controls associated with that higher classification. 
Expeditious attainment of the NAAQS will protect all those residing, 
working, attending school, or otherwise present in those areas, 
including communities of color and low-income communities.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is exempt from review by the Office of Management and 
Budget (OMB) because it responds to the CAA requirement to determine 
whether areas designated nonattainment for an ozone NAAQS attained the 
standard by the applicable attainment date, and to take certain steps 
for areas that failed to attain.

B. Paperwork Reduction Act (PRA)

    This rule does not impose any new information collection burden 
under the PRA not already approved by the OMB. This action does not 
contain any information collection activities and serves only to make 
final: (1) a determination that a certain Serious nonattainment area 
listed in Table 2 in this action attained the 2008 ozone standards by 
the July 20, 2021, attainment date; (2) determinations that certain 
Serious nonattainment areas listed in Table 2 in this action failed to 
attain the 2008 ozone standards by the July 20, 2021, attainment date 
where such areas will be reclassified as Severe nonattainment for the 
2008 ozone standards by operation of law upon the effective date of the 
final reclassification action; and (3) adjust any applicable 
implementation deadlines.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action will not impose any requirements on small entities. The 
determinations of attainment and failure to attain the 2008 ozone 
standards (and resulting reclassifications) do not in and of themselves 
create any new requirements beyond what is mandated by the CAA. 
Instead, this rulemaking only makes factual determinations, and does 
not directly regulate any entities.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538 and does not significantly or uniquely affect 
small governments. The action imposes no enforceable duty on any state, 
local or tribal governments or the private sector.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government. The 
division of responsibility between the federal government and the 
states for purposes of implementing the NAAQS is established under the 
CAA.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action has tribal implications. However, it will neither 
impose substantial direct compliance costs on federally recognized 
tribal governments, nor preempt tribal law.
    The EPA has identified tribal areas within the nonattainment areas 
covered by this rulemaking that would be potentially affected by this 
final action. Specifically, two of the nonattainment areas addressed in 
this action have tribes located within their boundaries: the Greater 
Connecticut, CT, area (Mashantucket Pequot Tribal Nation and Mohegan 
Indian Tribe), and the New York-Northern New Jersey-Long Island, CT-NJ-
NY area (Shinnecock Indian

[[Page 60934]]

Nation). One of the nonattainment areas addressed in this document is a 
separate tribal nonattainment area (Morongo Band of Mission Indians 
area).
    The EPA has concluded that the final rule may have tribal 
implications for these tribes for the purposes of Executive Order 13175 
but would not impose substantial direct costs upon the tribes, nor 
would it preempt tribal law. As noted in our proposed rule, a tribe 
that is part of an area that is reclassified from Serious to Severe 
nonattainment is not required to submit a tribal implementation plan 
revision to address new Severe area requirements.\33\ However, the NNSR 
major source threshold and offset requirements will change for 
stationary sources seeking preconstruction permits in any nonattainment 
areas newly reclassified as Severe (Section II.D.1 of this notice), 
including on tribal lands within these nonattainment areas. Areas that 
are already classified Severe for a previous ozone NAAQS are already 
subject to these higher offset ratios and lower thresholds, so a 
reclassification to Severe for the 2008 ozone NAAQS would have no 
effect on NNSR permitting requirements for tribal lands in those areas.
---------------------------------------------------------------------------

    \33\ See 87 FR 21825, 21828 (April 13, 2022).
---------------------------------------------------------------------------

    The EPA has communicated or intends to communicate with the 
potentially affected tribes located within the boundaries of the 
nonattainment areas addressed in this final action, including offering 
government-to-government consultation, as appropriate.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    The EPA interprets Executive Order 13045 as applying to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. This action is not subject to 
Executive Order 13045 because it does not establish an environmental 
standard intended to mitigate health or safety risks.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution or Use

    This action is not subject to Executive Order 13211 because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    The EPA believes that this action does not have disproportionately 
high and adverse human health or environmental effects on minority 
populations, low-income populations and/or indigenous peoples, as 
specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The 
documentation for this determination is contained in Section III of 
this preamble, ``Environmental Justice (EJ) Impacts,'' and the relevant 
documents have been placed in the public docket for this action.
    With respect to the determinations of whether areas have attained 
the NAAQS by the attainment date, the EPA has no discretionary 
authority to address EJ in these determinations. The CAA directs that 
within 6 months following the applicable attainment date, the 
Administrator shall determine, based on the area's design value as of 
the attainment date, whether the area attained the standard by that 
date. CAA section 181(b)(2)(A). Except for any Severe or Extreme area, 
any area that the Administrator finds has not attained the standard by 
that date shall be reclassified by operation of law to either the next 
higher classification or the classification applicable to the area's 
design value. Id.

K. Congressional Review Act (CRA)

    This rule is exempt from the CRA because it is a rule of particular 
applicability. The rule makes factual determinations for specific 
entities and does not directly regulate any entities. The 
determinations of attainment and failure to attain the 2008 ozone NAAQS 
(and resulting reclassifications) and the denial of a 1-year attainment 
date extension request do not in and of themselves create any new 
requirements beyond what is mandated by the CAA.

L. Judicial Review

    Section 307(b)(1) of the CAA governs judicial review of final 
actions by the EPA. This section provides, in part, that petitions for 
review must be filed in the Court of Appeals for the District of 
Columbia Circuit: (i) when the agency action consists of ``nationally 
applicable regulations promulgated, or final actions taken, by the 
Administrator,'' or (ii) when such action is locally or regionally 
applicable, but ``such action is based on a determination of nationwide 
scope or effect and if in taking such action the Administrator finds 
and publishes that such action is based on such a determination.'' For 
locally or regionally applicable final actions, the CAA reserves to the 
EPA complete discretion whether to invoke the exception in (ii).
    This final action is ``nationally applicable'' within the meaning 
of CAA section 307(b)(1). In this final action, the EPA is applying a 
uniform process and standard to areas across the country to make 
determinations regarding attainment of the 2008 ozone NAAQS for the 
majority of areas that remain designated and classified as Serious 
nonattainment for these NAAQS. All listed areas that have failed to 
attain by the Serious area attainment date \34\ are reclassified to 
Severe upon the effective date of this final action and are subject to 
the same deadlines established pursuant to CAA section 182(i) for 
revising state implementation plans and implementing control 
requirements associated with the Severe area classification. While many 
areas that were initially designated nonattainment for the 2008 ozone 
NAAQS in 2012 have, in the intervening decade, come into attainment of 
the NAAQS, the remaining nonattainment areas subject to this final 
rulemaking are located in six states across a wide geographic area and 
fall within four of the ten EPA regions and six judicial circuits. The 
areas affected by this notice comprise major metropolitan areas in the 
American South, West, and Northeast, as well as a tribal area in the 
West. Given that on its face this action addresses areas in states 
located across a wide geographic area, and uses common, nationwide 
analytical methods the EPA consistently applies when making 
determinations regarding attainment, acting on attainment date 
extension requests, and adjusting deadlines for all newly reclassified 
areas, this is a ``nationally applicable'' action within the meaning of 
CAA section 307(b)(1).
---------------------------------------------------------------------------

    \34\ These areas include the Houston area because the EPA is 
denying Texas's request to extend the attainment date by one year.
---------------------------------------------------------------------------

    In the alternative, to the extent a court finds this final action 
to be locally or regionally applicable, the Administrator is exercising 
the complete discretion afforded to him under the CAA to make and 
publish a finding that this action is based on a determination of 
``nationwide scope or effect'' within the meaning of CAA section 
307(b)(1).\35\ In

[[Page 60935]]

deciding to invoke this exception, the Administrator has taken into 
account a number of policy considerations, including his judgment 
regarding the benefit of obtaining the D.C. Circuit's authoritative 
centralized review, rather than allowing development of the issue in 
other contexts, in order to ensure consistency in the Agency's approach 
to implementation of the 2008 ozone NAAQS in the majority of the 
nonattainment areas nationwide that remain classified Serious for the 
2008 ozone NAAQS. This final action treats all of the identified 
Serious nonattainment areas consistently by reclassifying them to 
Severe and establishing consistent deadlines for all of these areas to 
submit and implement control measures and other plan elements required 
for Severe areas. The Administrator finds that this is a matter on 
which national uniformity is desirable to take advantage of the D.C. 
Circuit's administrative law expertise and facilitate the orderly 
development of the basic law under the Act. The Administrator also 
finds that consolidated review of this action in the D.C. Circuit will 
avoid piecemeal litigation in the regional circuits, further judicial 
economy, and eliminate the risk of inconsistent results for different 
states. The Administrator also finds that a nationally consistent 
approach to the CAA's mandate concerning reclassification of areas that 
fail to attain the 2008 ozone NAAQS constitutes the best use of agency 
resources. The Administrator is publishing his finding that this action 
is based on a determination of nationwide scope or effect in the 
Federal Register as part of this final rule.
---------------------------------------------------------------------------

    \35\ In the report on the 1977 Amendments that revised CAA 
section 307(b)(1), Congress noted that the Administrator's 
determination that the ``nationwide scope or effect'' exception 
applies would be appropriate for any action that has a scope or 
effect beyond a single judicial circuit. See H.R. Rep. No. 95-294 at 
323-24, reprinted in 1977 U.S.C.C.A.N. 1402-03.
---------------------------------------------------------------------------

    For these reasons, this final action is nationally applicable or, 
alternatively, the Administrator is exercising the complete discretion 
afforded to him by the CAA and finds that this final action is based on 
a determination of nationwide scope or effect for purposes of CAA 
section 307(b)(1) and is publishing that finding in the Federal 
Register. Under section 307(b)(1) of the CAA, petitions for judicial 
review of this action must be filed in the United States Court of 
Appeals for the District of Columbia Circuit by December 6, 2022.

List of Subjects

40 CFR Part 52

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Designations and classifications, Incorporation 
by reference, Intergovernmental relations, Nitrogen oxides, Ozone, 
Reporting and recordkeeping requirements and Volatile organic 
compounds.

40 CFR Part 81

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Designations and classifications, 
Intergovernmental relations, Nitrogen oxides, Ozone, Reporting and 
recordkeeping requirements, and Volatile organic compounds.

Michael S. Regan,
Administrator.

    For the reasons stated in the preamble, parts 52 and 81, title 40, 
chapter 1 of the Code of Federal Regulations are amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart H--Connecticut

0
2. Section 52.377 is amended by revising paragraph (u) to read as 
follows:


Sec.  52.377  Control strategy: Ozone.

* * * * *
    (u) Determination of attainment for the 2008 ozone standard. 
Effective November 7, 2022 EPA is determining that complete, quality-
assured and certified ozone monitoring data for 2018-2020 show the 
Greater Connecticut, CT ozone nonattainment area attained the 2008 
ozone NAAQS by its July 20, 2021, attainment deadline. Therefore, EPA 
has met the requirement pursuant to CAA section 181(b)(2)(A) to 
determine, based on the area's air quality data as of the attainment 
date, whether the area attained the standard.
* * * * *

PART 81--DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES

0
3. The authority citation for part 81 continues to read as follows:

    Authority: 42 U.S.C. 7401, et seq.

Subpart C--Section 107 Attainment Status Designations

0
4. In Sec.  81.305, in the table entitled ``California-2008 8-Hour 
Ozone NAAQS [Primary and Secondary]'' revise the entry ``Morongo Band 
of Mission Indians\3\'' to read as follows:


Sec.  81.305  California.

* * * * *

                                       California--2008 8-Hour Ozone NAAQS
                                             [Primary and secondary]
----------------------------------------------------------------------------------------------------------------
                                                 Designation                            Classification
        Designated area         --------------------------------------------------------------------------------
                                      Date \1\                Type                Date \1\             Type
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Morongo Band of Mission Indians  .................  Nonattainment..........  November 7, 2022..  Severe.
 \3\.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ This date is July 20, 2012, unless otherwise noted.
 * * * * * *
\3\ Includes Indian country of the tribe listed in this table located in the identified area. Information
  pertaining to areas of Indian country in this table is intended for CAA planning purposes only and is not an
  EPA determination of Indian country status or any Indian country boundary. The EPA lacks the authority to
  establish Indian country land status, and is making no determination of Indian country boundaries, in this
  table.


[[Page 60936]]

* * * * *

0
5. In Sec.  81.306, in the table entitled ``Colorado-2008 8-Hour Ozone 
NAAQS [Primary and Secondary]'' revise the entry ``Denver-Boulder-
Greeley-Ft. Collins-Loveland, CO: \2\'' to read as follows:


Sec.  81.306   Colorado.

* * * * *

                                        Colorado--2008 8-Hour Ozone NAAQS
                                             [Primary and secondary]
----------------------------------------------------------------------------------------------------------------
                                                 Designation                            Classification
        Designated area         --------------------------------------------------------------------------------
                                      Date \1\                Type                Date \1\             Type
----------------------------------------------------------------------------------------------------------------
Denver-Boulder-Greeley-Ft.       .................  Nonattainment..........  November 7, 2022..  Severe.
 Collins-Loveland, CO: \2\.
    Adams County
    Arapahoe County
    Boulder County
    Broomfield County
    Denver County
    Douglas County
    Jefferson County
    Larimer County (part)
        That portion of the
         county that lies south
         of a line described as
         follows: Beginning at
         a point on Larimer
         County's eastern
         boundary and Weld
         County's western
         boundary intersected
         by 40 degrees, 42
         minutes, and 47.1
         seconds north
         latitude, proceed west
         to a point defined by
         the intersection of 40
         degrees, 42 minutes,
         47.1 seconds north
         latitude and 105
         degrees, 29 minutes,
         and 40.0 seconds west
         longitude, thence
         proceed south on 105
         degrees, 29 minutes,
         40.0 seconds west
         longitude to the
         intersection with 40
         degrees, 33 minutes
         and 17.4 seconds north
         latitude, thence
         proceed west on 40
         degrees, 33 minutes,
         17.4 seconds north
         latitude until this
         line intersects
         Larimer County's
         western boundary and
         Grand County's eastern
         boundary.
    Weld County (part)
        That portion of the
         county that lies south
         of a line described as
         follows: Beginning at
         a point on Weld
         County's eastern
         boundary and Logan
         County's western
         boundary intersected
         by 40 degrees, 42
         minutes, 47.1 seconds
         north latitude,
         proceed west on 40
         degrees, 42 minutes,
         47.1 seconds north
         latitude until this
         line intersects Weld
         County's western
         boundary and Larimer
         County's eastern
         boundary.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ This date is July 20, 2012, unless otherwise noted.
\2\ Excludes Indian country located in each area, unless otherwise noted.

* * * * *

0
6. In Sec.  81.307, in the table entitled ``Connecticut--2008 8-Hour 
Ozone NAAQS [Primary and Secondary]'' revise the entry ``New York-N. 
New Jersey-Long Island, NY-NJ-CT: \2\'' to read as follows:


Sec.  81.307   Connecticut.

* * * * *

                                      Connecticut--2008 8-Hour Ozone NAAQS
                                             [Primary and secondary]
----------------------------------------------------------------------------------------------------------------
                                                 Designation                            Classification
        Designated area         --------------------------------------------------------------------------------
                                      Date \1\                Type                Date \1\             Type
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
New York-N. New Jersey-Long      .................  Nonattainment..........  November 7, 2022..  Severe.
 Island, NY-NJ-CT: \2\.
    Fairfield County
    Middlesex County
    New Haven County
----------------------------------------------------------------------------------------------------------------
\1\ This date is July 20, 2012, unless otherwise noted.

[[Page 60937]]

 
\2\ Excludes Indian country located in each area, unless otherwise noted.

* * * * *

0
7. In Sec.  81.331, in the table entitled ``New Jersey--2008 8-Hour 
Ozone NAAQS [Primary and Secondary]'' revise the entry ``New York-N. 
New Jersey-Long Island, NY-NJ-CT: \2\'' to read as follows:


Sec.  81.331  New Jersey.

* * * * *

                                       New Jersey--2008 8-Hour Ozone NAAQS
                                             [Primary and secondary]
----------------------------------------------------------------------------------------------------------------
                                                 Designation                            Classification
        Designated area         --------------------------------------------------------------------------------
                                      Date \1\                Type                Date \1\             Type
----------------------------------------------------------------------------------------------------------------
New York-N. New Jersey-Long      .................  Nonattainment..........  November 7, 2022..  Severe.
 Island, NY-NJ-CT: \2\.
    Bergen County
    Essex County
    Hudson County
    Hunterdon County
    Middlesex County
    Monmouth County
    Morris County
    Passaic County
    Somerset County
    Sussex County
    Union County
    Warren County
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ This date is July 20, 2012, unless otherwise noted.
\2\ Excludes Indian country located in each area, unless otherwise noted.

* * * * *

0
8. In Sec.  81.333, in the table entitled ``New York--2008 8-Hour Ozone 
NAAQS [Primary and Secondary]'' revise the entry ``New York-N. New 
Jersey-Long Island, NY-NJ-CT: \2\'' to read as follows:


Sec.  81.333  New York.

* * * * *
    New York--2008 8-Hour Ozone NAAQS
    [Primary and Secondary]

----------------------------------------------------------------------------------------------------------------
                                                 Designation                            Classification
        Designated area         --------------------------------------------------------------------------------
                                      Date \1\                Type                Date \1\             Type
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
New York-N. New Jersey-Long      .................  Nonattainment..........  November 7, 2022..  Severe.
 Island, NY-NJ-CT: \2\.
    Bronx County
    Kings County
    Nassau County
    New York County
    Queens County
    Richmond County
    Rockland County
    Suffolk County
    Westchester County
    Shinnecock Indian Nation
     \3\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ This date is July 20, 2012, unless otherwise noted.
\2\ Excludes Indian country located in each area, unless otherwise noted.
\3\ Includes Indian country of the tribe listed in this table located in the identified area. Information
  pertaining to areas of Indian country in this table is intended for CAA planning purposes only and is not an
  EPA determination of Indian country status or any Indian country boundary. The EPA lacks the authority to
  establish Indian country land status, and is making no determination of Indian country boundaries, in this
  table.

* * * * *

0
9. In Sec.  81.344, in the table entitled ``Texas--2008 8-Hour Ozone 
NAAQS [Primary and Secondary]'' revise the entries ``Dallas-Fort Worth, 
TX: \2\'' and ``Houston-Galveston-Brazoria, TX: \2\'' to read as 
follows:


Sec.  81.344  Texas.

* * * * *

[[Page 60938]]



                                         Texas--2008 8-Hour Ozone NAAQS
                                             [Primary and secondary]
----------------------------------------------------------------------------------------------------------------
                                                 Designation                            Classification
        Designated area         --------------------------------------------------------------------------------
                                      Date \1\                Type                Date \1\             Type
----------------------------------------------------------------------------------------------------------------
Dallas-Fort Worth, TX: \2\.....  .................  Nonattainment..........  November 7, 2022..  Severe.
    Collin County
    Dallas County
    Denton County
    Ellis County
    Johnson County
    Kaufman County
    Parker County
    Rockwall County
    Tarrant County
    Wise County
Houston-Galveston-Brazoria, TX:  .................  Nonattainment..........  November 7, 2022..  Severe.
 \2\.
    Brazoria County
    Chambers County
    Fort Bend County
    Galveston County
    Harris County
    Liberty County
    Montgomery County
    Waller County
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ This date is July 20, 2012, unless otherwise noted.
\2\ Excludes Indian country located in each area, unless otherwise noted.

* * * * *
[FR Doc. 2022-20458 Filed 10-6-22; 8:45 am]
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