[Federal Register Volume 89, Number 241 (Monday, December 16, 2024)]
[Rules and Regulations]
[Pages 101483-101489]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-29246]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[EPA-R08-OAR-2024-0001; FRL-12469-01-R8]
Denial of Request for Attainment Date Extension, Finding of
Failure To Attain, and Reclassification of an Area in Utah as Moderate
for the 2015 Ozone National Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is denying a request
by the State of Utah and the Ute Indian Tribe for an extension of the
attainment date for the Uinta Basin, Utah Marginal nonattainment area
under the 2015 ozone National Ambient Air Quality Standards (NAAQS). In
addition, we are determining that the area did not attain the standard
by the applicable attainment date, and accordingly that the area will
be reclassified by operation of law to ``Moderate'' nonattainment for
the 2015 ozone NAAQS on the effective date of this final rule. With
respect to the Uinta Basin area, this action fulfills the EPA's
obligation under the Clean Air Act (CAA) to determine whether ozone
nonattainment areas attained the NAAQS by the Marginal area attainment
date and to publish a document in the Federal Register identifying each
area that is determined as having failed to attain and identifying the
reclassification.
DATES: This rule is effective on January 15, 2025.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R08-OAR-2024-0001. All documents in the docket are listed on
the https://www.regulations.gov website. Although listed in the index,
some information is not publicly available, e.g., Confidential Business
Information (CBI) 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. Publicly available docket materials are available through
https://www.regulations.gov, or please contact the person identified in
the FOR FURTHER INFORMATION CONTACT section for additional availability
information.
FOR FURTHER INFORMATION CONTACT: Amanda Brimmer, Air and Radiation
Division, EPA, Region 8, Mailcode 8ARD-AQ-R, 1595 Wynkoop Street,
Denver, Colorado 80202-1129, telephone number: (303) 312-6323, email
address: [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' or ``our'' is used, we mean the EPA.
I. Overview of Action
The EPA is required to determine whether areas designated
nonattainment for an ozone NAAQS attained the standard by the
applicable attainment date, and to take certain steps for areas that
failed to attain (see CAA section 181(b)(2)). The EPA's determination
of attainment for the 2015 ozone NAAQS is based on a nonattainment
area's design value (DV) as of the attainment date.\1\
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\1\ A DV 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 data handling
conventions for calculating DVs for the 2015 ozone NAAQS are
specified in appendix U to 40 CFR part 50. The DV for the 2015 ozone
NAAQS is the 3-year average of the annual fourth highest daily
maximum 8-hour average ozone concentration. The DV is calculated for
each air quality monitor in an area, and the DV for an area is the
highest DV among the individual monitoring sites located in the
area.
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The 2015 ozone NAAQS is met at a monitoring site when the DV does
not exceed 0.070 parts per million (ppm). This action addresses the
Uinta Basin area in Utah, which includes portions of Duchesne and
Uintah Counties. The Uinta Basin was initially classified as Marginal
for the 2015 ozone NAAQS and received a 1-year extension of the
attainment date in 2022, making the Marginal area attainment date for
this area August 3, 2022. As further explained in the Response to
Comment document in the docket, in this action we are denying a request
for a second 1-year extension. Accordingly, the applicable attainment
date for the area remains August 3, 2022. Because DVs are based on the
three most recent, complete calendar years of data preceding the
attainment date, attainment must occur no later than December 31 of the
year before the attainment date (i.e., December 31, 2021, in the case
of the Uinta Basin Marginal nonattainment area for the 2015 ozone
NAAQS). Accordingly, the EPA's determination for this area is
[[Page 101484]]
based upon the complete, quality-assured, and certified ozone
monitoring data from calendar years 2019, 2020, and 2021.
The EPA is finding that the Uinta Basin Marginal area did not
attain by the attainment date, because the area's 2019-2021 DV was
0.078 ppm, which is greater than 0.070 ppm. Under CAA section
181(b)(2)(A), the effect of this determination is that this area will
be reclassified by operation of law as Moderate on the effective date
of this final rule. The reclassified area will then be subject to the
Moderate area requirement to attain the 2015 ozone NAAQS as
expeditiously as practicable, but not later than August 3, 2024.
As a result of the area's reclassification as Moderate, Utah must
submit to the EPA the State Implementation Plan (SIP) revisions for
this area that satisfy the statutory and regulatory requirements
applicable to Moderate areas established in CAA section 182(b) and in
the 2015 Ozone NAAQS SIP Requirements Rule (see 83 FR 62998, December
6, 2018). The EPA will be establishing deadlines for the Uinta Basin
area for submitting SIP revisions and for planning requirements on
Indian Country in a separate action.
II. What is the background for this action?
On October 26, 2015, the EPA issued its final action to revise the
NAAQS for ozone to establish a new 8-hour standard (see 80 FR 65452,
October 26, 2015). In that action, the EPA promulgated identical
tighter primary and secondary ozone standards, designed to protect
public health and welfare, that specified an 8-hour ozone level of
0.070 ppm. Specifically, the standards provide that the 3-year average
of the annual fourth highest daily maximum 8-hour average ozone
concentration may not exceed 0.070 ppm.
Effective August 3, 2018, the EPA designated 52 areas throughout
the country as nonattainment for the 2015 ozone NAAQS (see 83 FR 25776,
June 4, 2018). In a separate action, the EPA assigned classification
thresholds and attainment dates based on the severity of an area's
ozone problem, determined by the area's DV (see 83 FR 10376, May 8,
2018). Consistent with CAA section 181(a), the EPA established the
attainment date for Marginal, Moderate, and Serious nonattainment areas
as 3 years, 6 years, and 9 years, respectively, from the effective date
of the final designations. Thus, the attainment date for Marginal
nonattainment areas for the 2015 ozone NAAQS was August 3, 2021; the
attainment date for Moderate areas was August 3, 2024; and the
attainment date for Serious areas is August 3, 2027. On October 7, 2022
(87 FR 60897), the EPA determined that 22 areas, including the Uinta
Basin area, did not attain the standards by the Marginal attainment
date. All of these areas except the Uinta Basin were reclassified as
Moderate by operation of law. As to the Uinta Basin, however, EPA
granted a 1-year extension of the attainment date, to August 3, 2022.
The State of Utah requested a second 1-year extension of the
attainment date for the Uinta Basin, to August 3, 2023. On December 20,
2022, the Ute Indian Tribe also requested a second one-year
extension.\2\ Granting this extension would make the relevant years for
evaluating attainment 2020-2022. On April 10, 2024 (89 FR 25223), EPA
proposed to grant the request for a second extension, and to determine
that the area attained by this attainment date based on data from 2020-
2022. EPA took public comment on this proposal through May 10, 2024.
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\2\ See letter dated December 20, 2022, from Ute Indian Tribe
Chairman Shaun Chapoose to U.S. EPA Region 8 Regional Administrator
KC Becker.
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III. What is the statutory authority for this action?
The statutory authority for this determination is provided by the
CAA, as amended (42 U.S.C. 7401 et seq.), including sections 107, 181
and 182.
CAA section 107(d) provides that when the EPA establishes or
revises a NAAQS, the agency must designate areas of the country as
nonattainment, attainment, or unclassifiable based on whether each area
is not meeting (or is contributing to air quality in a nearby area that
is not meeting) the NAAQS, meeting the NAAQS, or cannot be classified
as meeting or not meeting the NAAQS, respectively. Subpart 2 of part D
of title I of the CAA governs the classification, state planning, and
emission control requirements for any areas designated as nonattainment
for a revised primary ozone NAAQS. In particular, CAA section 181(a)(1)
requires each area designated as nonattainment for a revised ozone
NAAQS to be classified at the same time as the area is designated based
on the extent of the ozone problem in the area (as determined based on
the area's DV). Classifications for ozone nonattainment areas are
``Marginal,'' ``Moderate,'' ``Serious,'' ``Severe,'' and ``Extreme,''
in order of stringency. CAA section 182 provides the specific
attainment planning and additional requirements that apply to each
ozone nonattainment area based on its classification.
Section 181(b)(2)(A) of the CAA provides that within 6 months
following the applicable attainment date, the EPA must determine
whether an ozone nonattainment area attained the ozone standard based
on the area's DV as of that date. Section 181(a)(5) of the CAA provides
the EPA the discretion (i.e., ``the Administrator may'') to extend an
area's applicable attainment date by one additional year upon
application by any state if the state meets the two criteria under CAA
section 181(a)(5), as interpreted by the EPA at 40 CFR 51.1307. No more
than two one-year extensions may be issued for a single nonattainment
area. CAA section 181(a)(5).
With respect to the first criterion, the EPA interprets the
provision as having been satisfied if a state can demonstrate that it
is in compliance with its approved implementation plan. See Delaware
Dept. of Nat. Resources and Envtl. Control v. EPA, 895 F.3d 90, 101
(D.C. Cir. 2018) (holding that the CAA requires only that an applying
state with jurisdiction over a nonattainment area comply with the
requirements in its applicable SIP, not every requirement of the Act);
see also Vigil v. Leavitt, 381 F.3d 826, 846 (9th Cir. 2004). A state
may meet this requirement by certifying its compliance, and in the
absence of such certification, the EPA may make a determination as to
whether the criterion has been met. See Delaware, 895 F.3d at 101-102.
Application of the second criterion differs depending on whether it
is being applied to a first or a second extension.\3\ For a second
extension, the EPA has interpreted the air quality criterion of CAA
section 181(a)(5)(B) to mean that an area's 4th highest daily maximum
8-hour value, averaged over both the original attainment year and the
first extension year, must be no greater than 0.070 ppm.\4\
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\3\ See 40 CFR 51.1307 (pertaining to determining eligibility
under CAA section 181(a)(5)(B) for attainment date extensions for
the 2015 ozone NAAQS).
\4\ See id. As of October 31, 2024, the Uinta Basin area's
certified 2020 and 2021 ozone data show that the maximum two-year
average design value for 2020-2021 is 0.069 ppm. This is based on
2020 and 2021 ozone values at the two key monitors in the region
(AQS Site 490472002, which had fourth highest daily maximum 8-hour
value for 2020 at 0.066 ppm, and AQS Site 490472003, which had
fourth highest daily maximum 8-hour value for 2021 at 0.072 ppm,
which averaged is 0.069 ppm.).
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We evaluated the information submitted by the Utah Division of Air
Quality (UDAQ) and proposed to determine that the area met the two
necessary statutory criteria for the second 1-year extension under CAA
section 181(a)(5) and 40 CFR
[[Page 101485]]
51.1307(a)(2). We stated that no other facts or circumstances compelled
the EPA Administrator to consider information beyond the statutory
criteria (see 89 FR 25223, 25226 (Apr. 10, 2024)). But we also
explicitly asked the public to weigh in on the EPA's findings: ``[t]he
EPA solicits comments on this proposal to grant the requested second 1-
year attainment date extension . . . and whether there are any
particular circumstances . . . that the EPA should consider before
granting the request.'' Id. We still conclude that the area met the two
minimum statutory criteria, but after considering public comments
received, air quality data, potential impacts on populations in the
nonattainment area, and other relevant factors, EPA is exercising its
discretion not to grant the request.
An exercise of discretion is involved in denying or granting an
ozone attainment date extension, once the two minimum statutory
criteria are met. See, e.g., New York v. EPA, 921 F.3d 257, 298 (D.C.
Cir. 2019) (internal citations omitted) (finding under a similarly
constructed CAA provision that ``[t]he statute requires this showing to
be made, but once it has been made, the statute provides only that EPA
`may' expand the region, not that it `shall' or `must' do so . . . In
other words, this requirement is a necessary but not sufficient
condition for expansion of the region''). With respect to CAA section
181(a)(5), the D.C. Circuit has acknowledged that the provision grants
the EPA discretion to look beyond the two enumerated factors. Delaware,
895 F.3d 90, 100 (D.C. Cir. 2018) (noting that despite its holding that
the EPA was not required to determine every state in a multi-state
nonattainment area's compliance with its SIP under section
181(a)(5)(A), ``EPA nevertheless retained discretion to consider
Delaware's compliance, given that the Act only dictates that EPA `may'
grant an extension when the statute's requirements are met'') (emphasis
added). The court added that the EPA's exercise of discretion under
this provision is subject to arbitrary-and-capricious review, such that
the Agency ``must cogently explain why it has exercised its discretion
in a given manner.'' Id. (emphasis in original) (citing Motor Vehicle
Mfrs. Ass'n of the U.S., Inc. v. State Farm Auto. Ins. Co., 463 U.S.
29, 48 (1983)). The statute does not compel the Agency to grant an
extension when the two criteria are met, and it is reasonable to
exercise our discretionary authority in light of the Act's goals.
CAA section 181(a)(5), which establishes the extension process for
ozone nonattainment areas, mirrors the extension process established in
the general nonattainment area provisions at CAA section 172(a)(2)(C),
and is appropriately read in light of the Act's focus on the
expeditious attainment of the NAAQS--both in subpart 2 specifically \5\
and in part D more generally.\6\ The ultimate goal of part D of the
CAA, which governs planning requirements for nonattainment areas, and
the responsibility of states and the EPA under that section of the Act,
is to drive progress in nonattainment areas toward attainment as
expeditiously as practicable but by no later than the maximum
attainment dates prescribed by the Act.
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\5\ CAA section 181(a)(1).
\6\ See, e.g., CAA section 171(1) (defining reasonable further
progress as annual incremental reductions in emissions of the
relevant air pollutant . . . for the purpose of ensuring attainment
of the applicable [NAAQS] by the applicable attainment date''); CAA
section 172(a)(2)(A) (establishing attainment dates for the primary
NAAQS as ``the date by which attainment can be achieved as
expeditiously as practicable, but no later than 5 years from the
date such area was designated nonattainment under [107(d)] of this
title''); CAA section 172(c)(1) (requiring implementation of all
reasonably available control measures as expeditiously as
practicable and that plans provide for attainment of the NAAQS); CAA
section 172(c)(6) (requiring state plans to include enforceable
emission limitations, and such other control measures, means or
techniques, as well as schedules and timetables for compliance, as
may be necessary or appropriate to provide for attainment of the
NAAQS by the applicable attainment date).
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We are denying this extension after evaluating and considering the
public comments received and carefully reviewing the area's air quality
data. We conclude that it is appropriate to exercise our discretion to
deny the extension to ensure the expeditious attainment of the NAAQS in
the Uinta Basin, and that granting the State's and Tribe's request for
a second 1-year extension and finding that the area attained by the
extended Marginal attainment date would potentially delay needed
improvement of the area's air quality and protection of human health
and the environment. As noted in the proposal, we are encouraged by the
progress of emissions reductions in the area. However, after reviewing
the public comments on the proposal, we agree with commenters that
recent air quality concentrations indicate that continued application
of the planning requirements of subpart 2 of the CAA, which are
designed to achieve attainment of the ozone NAAQS, would help ensure
that those reductions, along with other reductions if they are
determined to be necessary, result in attainment of the NAAQS.
As discussed in further detail in the Response to Comments
document, monitoring values do show an overall trend towards
attainment. But we also recognize the importance and significance of
the high ozone levels recorded in 2023. The Uinta Basin is quite
unusual among ozone nonattainment areas, in that the area has elevated
terrain surrounding a low basin, and in that the highest ozone levels
tend to occur during the winter months. Specifically, when strong and
persistent temperature inversions form over snow-covered ground in the
Uinta Basin, this results in a stable atmosphere which traps emissions
and allows them to accumulate and react with sunlight to form ozone.\7\
Additionally, because sunlight reflects off snow, under these
conditions there is even higher reactivity and thus higher ozone
levels. Conversely, in years without these meteorological conditions
(such as 2020 and 2021), local anthropogenic emissions typically will
not create high wintertime ozone concentrations. Therefore, EPA is
concerned that it remains probable that the area will continue to
experience high ozone levels in years where these meteorological
conditions are met.
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\7\ See Regulatory Impact Analysis (RIA) for the U&O O&NG FIP
for a more detailed discussion of winter ozone. This can be viewed
in Docket ID No. EPA-R08-OAR-2015-0709 at https://regulations.gov/document/EPA-R08-OAR-2015-0709-0260.
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Granting the extension and determining that the area attained by
its attainment date would mean that the Uinta Basin would remain in
Marginal nonattainment, even though the area has experienced
significant violations of the NAAQS after the attainment date and
likely will do so in the future if the same meteorological conditions
reoccur in future winters. Those future meteorological conditions could
result in similar violations of the ozone NAAQS again, because none of
the specific mechanisms and controls in part D and subpart 2, which
require that emission reductions result in attainment, would apply to
the area. For example, while Marginal nonattainment areas are subject
to requirements such as periodic inventories and nonattainment new
source review (NNSR) permitting, the vital nonattainment planning
requirements that result in imposition of controls and actual emission
reductions, such as reasonable further progress, attainment
demonstration controls and modeling, and reasonable available control
technology (RACT), apply only to areas classified as Moderate and
above. Therefore, if EPA were to finalize its proposed approval of
Utah's request for an extension and determine that the area attained by
its Marginal area
[[Page 101486]]
attainment date, the area could continue violating the 2015 ozone NAAQS
indefinitely without being subject to any of the CAA's attainment
planning requirements and consequences that were designed to ensure
that nonattainment areas progress to attainment. Timely attainment of
the ozone NAAQS also serves to ensure that communities in the Uinta
Basin are not exposed to disproportionate health and environmental
impacts.
Accordingly, we are not finalizing the action as proposed, and are
instead denying the request for a second extension. Further, we are
determining that the area failed to attain by the Marginal attainment
date of August 3, 2022. These final actions are within the scope of our
proposed action. See Arizona Pub. Serv. Co. v. EPA, 211 F.3d 1280, 1299
(D.C. Cir. 2000) (``[T]he final rule was not wholly unrelated or
surprisingly distant from what EPA initially suggested. In first
proposing that Tribes would have to meet the `same requirements' as
states, EPA effectively raised the question as to whether this made
sense.''); Final rule, Denial of Request for Extension of Attainment
Date for 1997 PM2.5 NAAQS; California; San Joaquin Valley
Serious Nonattainment Area, 81 FR 69396, 69400 (Oct. 2, 2016)
(``Implicit in any such proposal to grant an extension requested by a
state is the possibility that the EPA may decide to deny the extension,
after considering public comments.''). For a discussion of comments
received on the proposal and responses to those comments, please see
the Response to Comments document in the docket for this action.
If an ozone nonattainment area fails to attain the ozone NAAQS by
the applicable attainment date and is not granted a 1-year attainment
date extension, CAA section 181(b)(2)(A) requires the EPA to make the
determination that the area failed to attain the ozone standard by the
applicable attainment date, and the area is reclassified by operation
of law to the higher of: (1) the next higher classification for the
area, or (2) the classification applicable to the area's DV as of the
determination of failure to attain. Section 181(b)(2)(B) of the CAA
requires the EPA to publish the determination of failure to attain and
accompanying reclassification in the Federal Register no later than 6
months after the attainment date, which in the case of the Uinta Basin
Marginal nonattainment area was February 3, 2023.
Once an area is reclassified, each state that contains a
reclassified area must submit certain SIP revisions in accordance with
the more stringent classification. The SIP revisions are intended to,
among other things, demonstrate how the area will attain the NAAQS as
expeditiously as practicable, but no later than August 3, 2024, the
Moderate area attainment date for the 2015 ozone NAAQS. Per CAA section
182(i), a state with a reclassified ozone nonattainment area must
submit the applicable attainment plan requirements ``according to the
schedules prescribed in connection with such requirements'' in CAA
section 182(b) for Moderate areas, but the EPA ``may adjust applicable
deadlines (other than attainment dates) to the extent such adjustment
is necessary or appropriate to assure consistency among the required
submissions.'' EPA will address the SIP revision and implementation
deadlines for the Uinta Basin in a separate rulemaking.
The above obligations of the State of Utah do not extend to the
portions of the Uinta Basin nonattainment area consisting of Indian
country lands within the Uintah & Ouray Reservation of the Ute Indian
Tribe.\8\ Section 301(d) of the CAA authorizes the EPA to treat Indian
Tribes in the same manner as states for purposes of implementing the
CAA over their reservations or other areas within their jurisdiction,
and directs the EPA to promulgate regulations specifying those
provisions of the CAA for which such treatment is appropriate.\9\
Section 301(d) also authorizes the EPA, when the EPA determines that
the treatment of Indian Tribes in the same manner as states is
inappropriate or administratively infeasible, to provide by regulation
other means by which the EPA will directly administer the CAA.\10\
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\8\ Okla. Dep't of Envtl. Quality v. EPA, 740 F.3d 185, 194
(D.C. Cir. 2014) (For purposes of a Clean Air Act SIP, ``[a] state
therefore has regulatory jurisdiction within its geographic
boundaries except where a Tribe has a reservation. . . .''). The
Uintah & Ouray Reservation's boundaries have been addressed and
explained in a series of federal court decisions. Consistent with
those decisions, the EPA considers all lands within the U&O
Reservation's boundaries to be ``Indian country'' as defined in 18
U.S.C. 1151, subject to federal court decisions holding that
specified Congressional acts removed certain lands from Indian
country status. See Ute Indian Tribe v. Utah, 521 F. Supp. 1072 (D.
Utah 1981); Ute Indian Tribe v. Utah, 716 F.2d 1298 (10th Cir.
1983); Ute Indian Tribe v. Utah, 773 F.2d 1087 (10th Cir. 1985) (en
banc), cert. denied, 479 U.S. 994 (1986); Hagen v. Utah, 510 U.S.
399 (1994); Ute Indian Tribe v. Utah, 935 F. Supp. 1473 (D. Utah
1996); Ute Indian Tribe v. Utah, 114 F.3d 1513 (10th Cir. 1997),
cert. denied, 522 U.S. 1107 (1998); Ute Indian Tribe v. Utah, 790
F.3d 1000 (10th Cir. 2015), cert. denied, 136 S. Ct. 1451 (2016);
Ute Indian Tribe v. Myton, 835 F.3d 1255 (10th Cir. 2016), cert.
denied, 582 U.S. 952 (2017); Hackford v. Utah, 845 F.3d 1325, 1327
(10th Cir.), cert. denied, 138 S. Ct. 206 (2017).
\9\ 42 U.S.C. 7601(d)(1) and (2); see 63 FR 7254-57 (Feb. 12,
1998) (explaining that CAA section 301(d) includes a delegation of
authority from Congress to eligible Indian Tribes to implement CAA
programs over all air resources within the exterior boundaries of
their Reservations).
\10\ 42 U.S.C. 7601(d)(4).
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EPA regulations promulgated under this authority provide a process
for interested Tribes to seek treatment in a similar manner as a state
(TAS) for all CAA purposes except for a specified list of
exceptions.\11\ In addition, these regulations include a provision
requiring the EPA to ``promulgate without unreasonable delay such
Federal implementation plan provisions as are necessary or appropriate
to protect air quality,'' unless a complete CAA Tribal Implementation
Plan (TIP) is submitted or approved.\12\ The Ute Indian Tribe has not
sought TAS status for the purpose of submitting or developing a TIP for
the portion of the nonattainment area consisting of Indian country
lands within its reservation. Accordingly, the EPA intends to address
attainment planning obligations for the Indian country portions of the
Uintah & Ouray Reservation within the Uinta Basin nonattainment area
through one or more separate rulemaking actions, in accordance with the
EPA's authority and responsibility to protect air quality in Indian
country under section 301(d)(4) of the CAA and 40 CFR 49.11.
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\11\ See 40 CFR 49.3 (General Tribal Clean Air Act authority),
49.4 (Clean Air Act provisions for which it is not appropriate to
treat Tribes in the same manner as States); see generally 40 CFR
part 49, subpart A (Tribal Authority).
\12\ 40 CFR 49.11(a).
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IV. How does EPA determine whether an area has attained the standard?
The level of the 2015 ozone NAAQS is 0.070 ppm.\13\ Under EPA
regulations at 40 CFR part 50, appendix U, the 2015 ozone NAAQS is
attained at a site when the 3-year average of the annual fourth highest
daily maximum 8-hour average ambient ozone concentration (i.e., the DV)
does not exceed 0.070 ppm. When the DV does not exceed 0.070 ppm at
each ambient air quality monitoring site within the area, the area is
deemed to be attaining the ozone NAAQS. Each area's DV is determined by
the highest DV among monitors with valid DVs.\14\
[[Page 101487]]
The data handling convention in 40 CFR part 50 appendix U states that
concentrations are to be reported in ppm to the third decimal place,
with additional digits to the right being truncated. Thus, a 3-year
average ozone concentration of 0.071 ppm is greater than 0.070 ppm and
would exceed the standard, but a 3-year average ozone concentration of
0.0709 ppm is truncated to 0.070 ppm and attains the 2015 ozone NAAQS.
The EPA's determination of whether the Uinta Basin attained the
standard is based on hourly ozone concentration data for calendar years
2019, 2020, and 2021 that have been collected and quality-assured in
accordance with 40 CFR part 58 and reported to the EPA's Air Quality
System (AQS) database.\15\
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\13\ See 40 CFR 50.19.
\14\ According to appendix U to 40 CFR part 50, ambient
monitoring sites with a DV of 0.070 ppm or less must meet minimum
data completeness requirements in order to be considered valid.
These requirements are met for a 3-year period at a site if daily
maximum 8-hour average ozone concentrations are available for at
least 90% of the days within the ozone monitoring season, on
average, for the 3-year period, with a minimum of at least 75% of
the days within the ozone monitoring season in any one year. Ozone
monitoring seasons are defined for each state in appendix D to 40
CFR part 58. DVs greater than 0.070 ppm are considered to be valid
regardless of the data completeness.
\15\ The EPA maintains the AQS, a database that contains ambient
air pollution data collected by the EPA, state, local, and Tribal
air pollution control agencies. The AQS also contains meteorological
data, descriptive information about each monitoring station
(including its geographic location and its operator) and data
quality assurance/quality control information. The AQS data is used
to (1) assess air quality, (2) assist in attainment/non-attainment
designations, (3) evaluate SIPs for non-attainment areas, (4)
perform modeling for permit review analysis, and (5) prepare reports
for Congress as mandated by the CAA. Access is through the website
at https://www.epa.gov/aqs.
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V. What action is EPA taking?
After evaluating the comments received, as explained in detail in
the Response to Comments document in the docket for this action, EPA is
denying the request for a second extension of the attainment date for
the area.
Further, the EPA is determining, pursuant to CAA section 181(b)(2),
that the Uinta Basin nonattainment area failed to attain the 2015 ozone
NAAQS by the attainment date of August 3, 2022. As shown in table 1 at
least one monitor in this area had a 2019-2021 DV greater than 0.070
ppm. Table 1 shows the annual fourth highest daily maximum 8-hour
average ozone concentration and 2019-2021 DV for each monitor in the
Uinta Basin areas.
Table 1--2019-2021 Fourth Highest Daily Maximum 8-Hour Average Ozone Concentrations and Design Values at All
Monitors in the Uinta Basin Area
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Fourth highest daily maximum 8-hour average
ozone concentration (ppm) 2019-2021 DV
AQS site ID Local site name ------------------------------------------------ (ppm)
2019 2020 2021
----------------------------------------------------------------------------------------------------------------
490130002.................... Roosevelt...... 0.087 0.063 0.072 0.074
490137011.................... Myton.......... 0.079 0.064 0.069 0.070
490471002.................... Dinosaur 0.070 0.063 0.068 0.067
National
Monument.
490471004.................... Vernal......... 0.065 0.063 0.068 0.065
490472002.................... Redwash........ 0.074 0.066 0.071 0.070
490472003.................... Ouray.......... 0.098 0.065 0.072 0.078
490477022.................... Whiterocks..... 0.067 0.065 0.068 0.066
----------------------------------------------------------------------------------------------------------------
Because of the area's failure to attain by its attainment date, on
the effective date of this final action this area will be reclassified
by operation of law to Moderate nonattainment for the 2015 ozone NAAQS.
Once reclassified as Moderate, this area will be required to attain the
standard ``as expeditiously as practicable'' but no later than 6 years
after the initial designation as nonattainment, which in this case
would be no later than August 3, 2024.
EPA will address whether the area attained the standard by the
Moderate date, and any related consequences, in a future action.
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review, and Executive
Order 14094: Modernizing Regulatory Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is
therefore not subject to review under Executive Order 14094 (88 FR
21879, April 11, 2023).
B. Paperwork Reduction Act (PRA)
This rule does not impose an information collection burden under
the provisions of the PRA of 1995 (44 U.S.C. 3501 et seq.). This action
does not contain any information collection activities and serves only
to make a final determination that the Uinta Basin nonattainment area
failed to attain the 2015 ozone standards by the August 3, 2022,
attainment date, as a result of which the area will be reclassified as
Moderate nonattainment for the 2015 ozone standards by operation of law
upon the effective date of this final reclassification action.
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 (5
U.S.C. 601 et seq.). This action will not impose any requirements on
small entities. The determination of failure to attain the 2015 ozone
standards and resulting reclassifications, do not in and of themselves
create any new requirements beyond what is mandated by the CAA. This
final action would require the state to adopt and submit SIP revisions
to satisfy CAA requirements and would not itself directly regulate any
small 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.
[[Page 101488]]
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 area
covered by this final rule that would be potentially affected by this
rulemaking. Specifically, the Ute Indian Tribe of the Uintah & Ouray
Reservation in the Uinta Basin, Utah ozone nonattainment area.
The EPA has concluded that the final rule may have Tribal
implications for this Tribe for the purposes of Executive Order 13175
but would not impose substantial direct costs upon the Tribe, nor would
it preempt Tribal law. As noted previously, a Tribe that is part of an
area that is reclassified from Marginal to Moderate nonattainment is
not required to submit a TIP revision to address new Moderate area
requirements. However, when the EPA finalizes the determinations of
failure to attain proposed in this action, the NNSR major source
threshold and offset requirements will change for stationary sources
seeking preconstruction permits in any nonattainment areas newly
reclassified as Moderate.
The EPA will communicate with the potentially affected Tribe
located within the boundary of the nonattainment area addressed in this
final rule, including offering government-to-government consultation,
as appropriate.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
as applying to those regulatory actions that concern environmental
health or safety risks that 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 (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 (NTTAA)
This rulemaking does not involve technical standards. Therefore,
EPA is not considering the use of any voluntary consensus standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
February 16, 1994) directs Federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on communities with environmental justice
(EJ) concerns to the greatest extent practicable and permitted by law.
EPA defines EJ as ``the fair treatment and meaningful involvement of
all people regardless of race, color, national origin, or income with
respect to the development, implementation, and enforcement of
environmental laws, regulations, and policies.'' EPA further defines
the term fair treatment to mean that ``no group of people should bear a
disproportionate burden of environmental harms and risks, including
those resulting from the negative environmental consequences of
industrial, governmental, and commercial operations or programs and
policies.''
In the proposed rule we explained that we had considered specific
information related to EJ, consisting of an EJSCREEN analysis for
Duchesne and Uintah Counties, along with the ozone design values for
the area. As explained in our Response to Comments document, we
received additional EJ-related information during the public comment
period and have considered that information in taking this final
action. Due to the nature of the action being taken here, this action
is expected to have a neutral to positive impact on the air quality of
the affected area. Our final action is consistent with the stated goal
of E.O. 12898 of achieving environmental justice for communities with
EJ concerns.
K. Congressional Review Act
This rule is exempt from the Congressional Review Act (CRA) because
it is a rule of particular applicability. The rule makes factual
determinations for an identified entity (Uinta Basin, UT area), based
on facts and circumstances specific to that entity. The determinations
of attainment and failure to attain the 2015 ozone NAAQS do not in
themselves create any new requirements beyond what is mandated by the
CAA.
L. Judicial Review
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 appropriate circuit by February 14, 2025. Filing a petition for
reconsideration by the Administrator of this action does not affect the
finality of this action for the purposes of judicial review nor does it
extend the time within which a petition for judicial review may be
filed and shall not postpone the effectiveness of this action. This
action may not be challenged later in proceedings to enforce its
requirements (see section 307(b)(2)).
List of Subjects in 40 CFR Part 81
Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.
Dated: December 6, 2024.
KC Becker,
Regional Administrator, Region 8.
For the reasons stated in the preamble the Environmental Protection
Agency amends title 40 CFR part 81 as follows:
PART 81--DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES
0
1. 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
2. In Sec. 81.345, the table titled ``Utah--2015 8-Hour Ozone NAAQS
[Primary and Secondary]'' is amended by revising the entry ``Uinta
Basin, UT'' to read as follows:
Sec. 81.345 Utah.
* * * * *
[[Page 101489]]
Utah--2015 8-Hour Ozone NAAQS
[Primary and secondary]
----------------------------------------------------------------------------------------------------------------
Designation Classification
Designated area \1\ ----------------------------------------------------------------------------------
Date \2\ Type Date \2\ Type
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Uinta Basin, UT \3\.......... .............. Nonattainment...... January 15, 2025......... Moderate.
Duchesne County (part):
All land in Duchesne
County below a
contiguous external
perimeter of 6,250 ft.
in elevation. All areas
within that contiguous
external perimeter are
included in the
nonattainment area--
including mesas and
buttes which may have an
elevation greater than
6,250 ft., but which are
surrounded on all sides
by land lower than 6,250
ft. Additionally, areas
that fall outside the
6,250 ft. contiguous
external perimeter that
have elevations less
than 6,250 ft. are
excluded from the
nonattainment area. The
boundary is defined by
the 6,250 ft. contour
line created from the
2013 USGS 10-meter
seamless Digital
Elevation Model (USGS
NED n41w1101/3 arc-
second 2013 1 x 1 degree
IMG).
Uintah County (part): All
land in Uintah County
below a contiguous
external perimeter of
6,250 ft. in elevation.
All areas within that
contiguous external
perimeter are included
in the nonattainment
area--including mesas
and buttes which may
have an elevation
greater than 6,250 ft.,
but which are surrounded
on all sides by land
lower than 6,250 ft.
Additionally, areas that
fall outside the 6,250
ft. contiguous external
perimeter that have
elevations less than
6,250 ft. are excluded
from the nonattainment
area. The boundary is
defined by the 6,250 ft.
contour line created
from the 2013 USGS 10-
meter seamless Digital
Elevation Model (USGS
NED n41w1101/3 arc-
second 2013 1 x 1 degree
IMG).
* * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ Includes any Indian country in each county or area, unless otherwise specified. EPA is not determining the
boundaries of any area of Indian country in this table, including any area of Indian country located in the
larger designation area. The inclusion of any Indian country in the designation area is not a determination
that the state has regulatory authority under the Clean Air Act for such Indian country.
\2\ This date is August 3, 2018, unless otherwise noted.
\3\ The EPA is designating portions of the Uinta Basin as ``nonattainment,'' including both Tribal and State
lands. The Ute Indian Tribe has air quality planning jurisdiction in the areas of Indian country included in
the Uinta Basin nonattainment area, while the State of Utah has air quality planning jurisdiction in the areas
of State land included in the Uinta Basin nonattainment area.
* * * * *
[FR Doc. 2024-29246 Filed 12-13-24; 8:45 am]
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