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Rule2022-20458

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

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Published

October 7, 2022

Effective

November 7, 2022

Issuing agencies

Environmental Protection Agency

Abstract

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.

Full Text

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<title>Federal Register, Volume 87 Issue 194 (Friday, October 7, 2022)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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: <a href="/cdn-cgi/l/email-protection#eb8782858c8a998fc59984898e999fab8e9b8ac58c849d"><span class="__cf_email__" data-cfemail="026e6b6c656370662c706d60677076426772632c656d74">[email&#160;protected]</span></a>; 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: <a href="/cdn-cgi/l/email-protection#45282c292924376b20282c293c052035246b222a33"><span class="__cf_email__" data-cfemail="6904000505081b470c04000510290c1908470e061f">[email&#160;protected]</span></a>.

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
----------------------------------------------------------------------------------------------------------------
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
----------------------------------------------------------------------------------------------------------------
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 <a href="http://www.regulations.gov">http://www.regulations.gov</a>, 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
<a href="https://www.epa.gov/ozone-pollution/redesignation-and-clean-data-policy-cdp">https://www.epa.gov/ozone-pollution/redesignation-and-clean-data-policy-cdp</a>.
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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 <a href="https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/inforeg/eo12866_implementation_guidance.pdf">https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/inforeg/eo12866_implementation_guidance.pdf</a>.
\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 <a href="https://www.epa.gov/state-and-local-transportation/vehicle-miles-travelled-vmt-offset-demonstration-guidance">https://www.epa.gov/state-and-local-transportation/vehicle-miles-travelled-vmt-offset-demonstration-guidance</a>.
\23\ The MOVES3 VMT offset tool can be found under ``Tools to
develop special case MOVES3 inputs'' at <a href="https://www.epa.gov/moves/tools-develop-or-convert-moves-inputs">https://www.epa.gov/moves/tools-develop-or-convert-moves-inputs</a>.
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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.

* * * * *

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

* * * * *

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

* * * * *
[FR Doc. 2022-20458 Filed 10-6-22; 8:45 am]
BILLING CODE 6560-50-P

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