2020-19559. Implementation of the Revoked 1997 8-Hour Ozone National Ambient Air Quality Standards; Updates to 40 CFR Part 52 for Areas That Attained by the Attainment Date

AGENCY:

Environmental Protection Agency (EPA)

ACTION:

Direct final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is updating part 52 of title 40, chapter 1 of the Code of Federal Regulations (CFR) to codify its findings that nine areas in four states attained the revoked 1997 8-hour ozone National Ambient Air Quality Standards (herein referred to as the 1997 ozone NAAQS) by the applicable attainment dates. In February 2019, EPA Regional Offices sent letters to the affected states to communicate the EPA's findings. The areas that timely attained the standards include the Buffalo-Niagara Falls area, and the Jefferson County, Poughkeepsie and Jamestown areas in the state of New York; the Shoreline Sheboygan County and Inland Sheboygan County areas in Wisconsin; the Denver-Boulder-Greeley-Ft. Collins-Loveland area in Colorado; and the San Francisco Bay and Ventura County areas in California. Publishing these determinations in part 52 will document for the public and state air agencies that these areas attained the standards by the applicable attainment dates and are therefore not subject to anti-backsliding consequences for failure to timely attain the standards.

DATES:

The direct final rule is effective on January 7, 2021 without further notice unless the EPA receives relevant adverse written comments, or if a public hearing is requested by October 14, 2020, on the proposed rule. In such case, refer to the General Information section.

ADDRESSES:

The EPA established Docket ID No. EPA-HQ-OAR-2019-0611 for this action. All documents on the docket are listed at https://www.regulations.gov. Although listed in the docket index, some information may not be publicly available, e.g., Confidential Business Information (CBI) or other information for which disclosure is restricted by statute. Certain other information, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Docket materials are available electronically to the public through http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

For further general information on this direct final rule, contact Ms. Virginia Raps, Air Quality Policy Division, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Mail Code: C539-01, Research Triangle Park, NC 27711, telephone [phone]; fax number: [phone]; email address: [e-mail].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. General Information

A. Why is EPA using a direct final rule?

B. Does this action apply to me?

II. Background

III. Summary of Final Action

IV. Environmental Justice Considerations

V. Statutory and Executive Order Reviews

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

B. Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs

C. Paperwork Reduction Act (PRA)

D. Regulatory Flexibility Act (RFA)

E. Unfunded Mandates Reform Act (UMRA)

F. Executive Order 13132: Federalism

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

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

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

J. National Technology Transfer and Advancement Act (NTTAA)

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

L. Congressional Review Act (CRA)

M. Judicial Review

I. General Information

A. Why is EPA using a direct final rule?

The EPA is publishing this direct final rule without a prior proposed rule because the agency views this as a noncontroversial action. The EPA anticipates no adverse comment because this final action codifies the EPA's factual findings that certain areas attained the revoked 1997 ozone NAAQS by the applicable attainment dates. In the “Proposed Rules” section of this Federal Register, the EPA is publishing the parallel proposed rule to update part 52. If adverse comments are received on the proposed rule, the EPA will not institute a second comment period on this action. Any parties interested in commenting on the proposed rule must do so at this time. For further information about commenting on the proposed rule, see the DATES and ADDRESSES section of the proposed rule.

If the EPA receives relevant adverse comment on all or a distinct portion of the proposed rule, the Agency will publish a timely withdrawal in the Federal Register. The withdrawal notice will inform the public of the direct final rule provisions that will become effective and which provisions are being withdrawn. In the event the EPA receives relevant adverse comment on the proposed rule, the EPA will respond in writing to comments and include the written responses in any subsequent final rule based on the proposed rule.

B. Does this action apply to me?

Publishing these determinations in part 52 will document for the public and state air agencies that these areas factually attained the revoked 1997 ozone NAAQS by the applicable attainment dates and are therefore not subject to anti-backsliding consequences for failure to timely attain the standards. The scope of the rule is narrow, and the EPA had previously informed the affected states' air agencies of these determinations by way of letter in February 2019. The direct final rule will not create any new requirements for any affected state. Nonetheless, the public is invited to comment on the proposed rule.

II. Background

On July 18, 1997, the EPA established standards for the 8-hour average ozone concentrations at a level of 0.08 parts per million (ppm) ^[1] for both the primary and secondary NAAQS ^[2] (herein referred to as the 1997 ozone NAAQS).^[3] Subsequently, the EPA designated areas around the country as either attaining (“attainment”) or not attaining (“nonattainment”) the 1997 ozone NAAQS. Effective on June 15, 2004,^[4] the EPA established the nonattainment area designations, classifications, and attainment dates ^[5] that applied to the 1997 ozone NAAQS nonattainment areas, and included attainment dates for Early Action Compact (EAC) areas.^[6] The EPA then issued a rule for implementing the 1997 ozone NAAQS that was published in a separate Federal Register notice effective on the same date, June 15, 2004.^[7]

Four years later, on March 27, 2008, the EPA revised the 8-hour ozone standards to a more protective level of 0.075 ppm for both the primary and secondary standards (herein referred to as the 2008 ozone NAAQS) ^[8] and issued implementing regulations for the revised NAAQS (herein referred to as the 2008 ozone SIP Requirements Rule) ^[9] in April 2015. In that rule, the EPA revoked the 1997 ozone NAAQS and established requirements to ensure that progress toward clean air in those areas would not “backslide.” The EPA also stated that it would no longer make determinations of attainment by the attainment date except to trigger relevant anti-backsliding obligations, as the designations and classifications for 1997 ozone NAAQS areas were no longer in effect following revocation.

Subsequently, in South Coast Air Quality Management District v. EPA (882 F.3d 1138 (D.C. Cir. 2018)) (known as the South Coast II decision),^[10] the U.S. Circuit Court of Appeals for the District of Columbia vacated, among other things, certain portions of the 2008 ozone SIP Requirements Rule, in part effectively re-establishing a requirement for EPA to reclassify areas that failed to attain the revoked 1997 ozone NAAQS by the area's applicable attainment date.^[11] The EPA does not interpret the South Coast II decision to compel the Agency to issue determinations of attainment by the attainment date or to make these updates to part 52 for areas that timely attained the revoked 1997 ozone NAAQS. Rather the EPA views these discretionary actions as helpful to clarify the status of the affected areas after the court decision.

To clarify the status of areas that attained the 1997 ozone NAAQS by the applicable attainment dates, in February 2019, four EPA Regional Offices issued letters to four states identifying nine areas that had attained the standards by the applicable attainment dates.^{[12 13 14 15]} The findings were based on certified quality-assured air quality monitoring data from the 3 calendar years preceding the respective attainment dates. This direct final rule updates the regulations at 40 CFR part 52 to reflect these earlier findings. The information contained in the letters is summarized in Table 1,^[16] including the de sign values (DVs) for the applicable attainment dates.^[17]

Table 1—Nonattainment Areas That Attained by the Attainment Date for the 1997 8-Hour Ozone NAAQS

EPA region	State	Area name	Applicable attainment date	Attainment year design value (DV)
				Level	DV years
2	New York	Buffalo-Niagara Falls, NY	June 15, 2010	0.076	2007-2009
2	New York	Jamestown, NY	June 15, 2010	0.079	2007-2009
2	New York	Jefferson County	June 15, 2010	0.074	2007-2009
2	New York	Poughkeepsie, NY	June 15, 2010	0.078	2007-2009
5	Wisconsin A	Shoreline Sheboygan County, WI Inland Sheboygan County, WI	June 15, 2010	0.079	2007-2009
8	Colorado	Denver-Boulder-Greeley-Ft. Collins-Loveland, CO	November 20, 2010	0.078	2007-2009
9	California	San Francisco Bay Area	June 15, 2007	0.080	2004-2006
9	California	Ventura County	June 15, 2013	0.081	2010-2012
A The separate Inland Sheboygan County, Wisconsin and Shoreline Sheboygan County, Wisconsin, ozone nonattainment areas were originally designated as a single, full-county area named Sheboygan County, Wisconsin, covering the same geographic area. The EPA's February 8, 2019, finding of attainment by the attainment date for the 1997 ozone NAAQS applied to the original full-county area. On July 15, 2019, the EPA revised the original designation by splitting the full-county 1997 ozone area into two separate and distinct areas (84 FR 33699, July 15, 2019). This change is reflected in 40 CFR 81.350 “Wisconsin.” at https://www.ecfr.gov/​cgi-bin/​text-idx?​SID=​0fd7171e7292313c1acf5280be3bdc6e&​mc=​ true&node=sp40.20.81.c&rgn=div6 (see 84 FR 33699, July 15, 2019, at https://www.govinfo.gov/​content/​pkg/​FR-2019-07-15/​pdf/​2019-14990.pdf and 40 CFR 81.350).

III. Summary of Final Action

This direct final rule updates the regulations at 40 CFR part 52 to reflect the earlier findings of determinations of attainment by the attainment date for the revoked 1997 ozone NAAQS. Publishing these determinations in part 52 will document for the public and state air agencies that these areas attained the standards by the applicable attainment dates and are therefore not subject to anti-backsliding consequences for failure to timely attain the standards.

IV. Environmental Justice Considerations

This direct final rule requires no environmental justice considerations.

V. 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 not a significant regulatory action and, therefore, was not submitted to the Office of Management and Budget for review.

B. Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs

This action is not an Executive Order 13771 regulatory action because this action is not a significant regulatory action under Executive Order 12866.

C. Paperwork Reduction Act (PRA)

This action does not impose an information collection burden under the PRA.

D. 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.

E. Unfunded Mandates Reform Act (UMRA)

This action does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-1538.^[18] The action imposes no enforceable duty on any state, local or tribal governments or the private sector.

F. 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.

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

This action does not have tribal implications as specified in Executive Order 13175. This action will neither impose substantial direct compliance costs on federally recognized tribal governments, nor preempt tribal law. Thus, Executive Order 13175 does not apply to this action.

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

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

I. 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.

J. National Technology Transfer Advancement Act (NTTAA)

This rulemaking does not involve technical standards.

K. 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, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (see 59 FR 7629, February 16, 1994). The documentation for this decision is contained in Section IV of this document titled, “Environmental Justice Considerations.”

L. Congressional Review Act (CRA)

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

M. Judicial Review

Under section 307(b)(1) of the CAA, petitions for judicial review of final actions that are locally and regionally applicable may be filed only in the United States Court of Appeals for the appropriate circuit by December 8, 2020. However, the statute also provides that notwithstanding that general rule, “a petition for review of any action . . . may be filed only in the United States Court of Appeals for the District of Columbia if 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.” Because this final action makes findings regarding the attainment status of areas across the country, in multiple EPA regions and within the jurisdictions over multiple U.S. Circuit Courts of Appeal, the Administrator finds that this action has nationwide scope and effect. Therefore, in accordance with CAA section 307(b)(1), petitions for review of this final action may be filed only in the United States Court of Appeals for the District of Columbia Circuit. Under CAA section 307(b)(2), the requirements established by this final rule may not be challenged separately in any civil or criminal proceedings for enforcement.

List of Subjects in 40 CFR Part 52

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

Andrew Wheeler,

Administrator.

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

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart F—California

2. Section 52.282 is amended by adding paragraph (l) to read as follows:

§ 52.282

Control strategy and regulations: Ozone.

* * * * *

(l) Determination of attainment by the attainment date. Effective December 8, 2020, the EPA determined that the San Francisco Bay, CA, Marginal ozone nonattainment area attained the revoked 1997 8-hour ozone National Ambient Air Quality Standards (NAAQS) by the applicable attainment date of June 15, 2007. The determination was based upon complete quality-assured and certified data for the 3 calendar years 2004-2006. Further, the EPA determined that the Ventura County, CA, Serious ozone nonattainment area attained the standards for the revoked 1997 8-hour NAAQS by the applicable attainment date of June 15, 2013. The determination was based upon complete quality-assured and certified data for the 3 calendar years 2010-2012. Under the provisions of the EPA's ozone implementation rule, these determinations suspend the applicable requirements under 40 CFR 51.900(f) and those listed under Clean Air Act sections 172(c) and 182.

Subpart G—Colorado

3. Section 52.350 is amended by adding paragraph (d) to read as follows:

§ 52.350

Control strategy: Ozone.

* * * * *

(d) Determination of attainment by the attainment date. Effective December 8, 2020, the EPA determined the Denver-Boulder-Greeley-Ft. Collins-Loveland, CO, Marginal ozone nonattainment area attained the revoked 1997 8-hour ozone National Ambient Air Quality Standards (NAAQS) by the applicable attainment date of November 20, 2010. The determination was based upon complete quality-assured and certified data for the three calendar years 2007-2009. Under the provisions of the EPA's ozone implementation rule, this determination suspends the applicable requirements under 40 CFR 51.900(f) and those listed under Clean Air Act sections 172(c) and 182.

Subpart HH—New York

4. Section 52.1683 is amended by adding paragraph (s) to read as follows:

§ 52.1683

Control strategy: Ozone.

* * * * *

(s) Determination of attainment by the attainment date. Effective December 8, 2020, the EPA determined that certain areas in New York designated Moderate nonattainment attained the revoked 1997 8-hour ozone National Ambient Air Quality Standards (NAAQS) by the applicable attainment date of June 15, 2010. The determination was based upon complete quality-assured and certified data for the 3 calendar years 2007-2009. Under the provisions of the EPA's ozone implementation rule, this determination suspends the applicable requirements under 40 CFR 51.900(f) and those listed under Clean Air Act sections 172(c) and 182 for:

(1) Buffalo-Niagara Falls (consisting of Erie and Niagara Counties).

(2) Jamestown (consisting of Chautauqua County).

(3) Jefferson County (consisting of Jefferson County).

(4) Poughkeepsie (consisting of Dutchess, Orange and Putnam Counties).

Subpart YY—Wisconsin

5. Section 52.2585 is amended by adding paragraph (nn) to read as follows:

§ 52.2585

Control strategy: Ozone.

* * * * *

(nn) Determination of attainment by the attainment date. Effective December 8, 2020, the EPA determined that the Shoreline Sheboygan County, Wisconsin, and the Inland Sheboygan County, Wisconsin, Moderate ozone nonattainment areas attained the revoked 1997 8-hour ozone National Ambient Air Quality Standards (NAAQS) by the applicable attainment date of June 15, 2010. The determinations are based upon complete quality-assured and certified data for the three calendar years 2007-2009. Together, the separate Shoreline Sheboygan County, Wisconsin, and the Inland Sheboygan County, Wisconsin, areas encompass the identical geographic area of the original full-county Sheboygan County, Wisconsin, area. The EPA's initial February 8, 2019, determination of attainment by the attainment date applied to the original full-county area, and continues to apply to the separate areas. Under the provisions of the EPA's ozone implementation rule, this determination suspends the applicable requirements under 40 CFR 51.900(f) and those listed under Clean Air Act sections 172(c) and 182.

* * * * *

Footnotes

1.  An area would violate the standard at a level greater than 0.084 ppm because rounding would cause a level of 0.085 ppm to be interpreted as 0.09 ppm, which exceeds the 0.08 ppm standard.

2.  Primary standards provide public health protection, including protecting the health of “sensitive” populations such as asthmatics, children, and the elderly. Secondary standards provide public welfare protection, including protection against decreased visibility and damage to animals, crops, vegetation, and buildings. Available on the internet at https://www.epa.gov/​criteria-air-pollutants/​naaqs-table.

3.  See 62 FR 38855, July 18, 1997, “National Ambient Air Quality [1997] Standards for Ozone,” final rule effective September 16, 1997. Available on the U.S. Government Publishing Office (GPO) website at https://www.govinfo.gov/​content/​pkg/​FR-1997-07-18/​pdf/​97-18580.pdf.

4.  See 69 FR 23858, April 30, 2004, “Air Quality Designations and Classifications for the [1997] 8-Hour Ozone NAAQS; Early Action Compact Areas With Deferred Effective Dates,” final rule effective June 15, 2004. Available on the U.S. GPO website at https://www.govinfo.gov/​content/​pkg/​FR-2004-04-30/​pdf/​04-9152.pdf.

5.  Ozone nonattainment area attainment dates are specific to the areas' classifications (see 69 FR 23858, 23863, April 30, 2004).

6.  To achieve clean air as soon as possible, the EPA worked with certain communities that entered into EACs. The goal of these Compacts was to help communities reduce ground-level ozone about 2 years sooner than required by the CAA. Accordingly, the EPA deferred the 1997 ozone NAAQS effective attainment dates for EAC areas. While these areas were violating the 8-hour standard, the EAC areas were continuing to meet compact milestones towards clean air. (see 69 FR 23858, 23865, April 30, 2004)

7.  See 69 FR 23951, April 30, 2004, “Final Rule to Implement the [1997] 8-Hour Ozone National Ambient Air Quality Standard—Phase 1,” final rule effective June 15, 2004. Available on the U.S. GPO website at https://www.govinfo.gov/​content/​pkg/​FR-2004-04-30/​pdf/​04-9153.pdf. EPA also issued the “Final Rule To Implement the [1997] 8-Hour Ozone National Ambient Air Quality Standard-Phase 2; Final Rule To Implement Certain Aspects of the 1990 Amendments Relating to New Source Review and Prevention of Significant Deterioration as They Apply in Carbon Monoxide, Particulate Matter and Ozone NAAQS; Final Rule for Reformulated Gasoline,” effective January 30, 2006. Available on the U.S. GPO website at https://www.govinfo.gov/​content/​pkg/​FR-2005-11-29/​pdf/​05-22698.pdf

8.  See 73 FR 16436, March 27, 2008, “National Ambient Air Quality Standards for Ozone” final rule effective May 27, 2008. Available on the U.S. GPO website at https://www.govinfo.gov/​content/​pkg/​FR-2008-03-27/​pdf/​E8-5645.pdf.

9.   See 80 FR 12264, March 6, 2015, “Implementation of the 2008 National Ambient Air Quality Standards for Ozone: State Implementation Plan Requirements” final rule effective April 6, 2015. Available on the U.S. GPO website at https://www.govinfo.gov/​content/​pkg/​FR-2015-03-06/​pdf/​2015-04012.pdf.

10.  South Coast Air Quality Management District v. EPA, 882 F.3d 1138 (DC Cir. 2018). Available on the Court of Appeals D.C. Circuit website at https://www.cadc.uscourts.gov/​internet/​opinions.nsf/​217B6778AE3EC89C8525823600532AE0/​$file/​15-1115-1718293.pdf.

11.  Attainment of the standard is established by calculating the 8-hour ozone design values (DVs) using certified quality-assured ozone air quality monitoring data available for the three full calendar years prior to the attainment date applicable to each area, where the standard would be attained at a level less than or equal to 0.084 ppm.

12.  Letter from EPA Region 2, John Filippelli, Director, Clean Air and Sustainability Division, to Jared Snyder, Deputy Commissioner, Air Resources, Climate Change and Energy, New York State Department of Environmental Conservation, dated February 4, 2019.

13.  Letter from EPA Region 5, Edward Nam, Director, Air and Radiation Division, to Gail Good, Director, Air Management Program, Wisconsin Department of Natural Resources, dated February 8, 2019.

14.  Letter from EPA Region 8, Monica Morales, Director, Air Program, to Mr. Garry Kaufman, Director, Air Pollution Control Division, Colorado Department of Public Health and Environment, dated February 8, 2019.

15.  Letter from EPA Region 9, Elizabeth J. Adams, Director, Air Division, to Richard W. Corey, Executive Officer, California Air Resources Board, dated February 21, 2019.

16.  The areas' names listed in Table 1 are presented as they were when the areas were designated nonattainment in EPA's rule for implementing the 1997 ozone NAAQS effective on June 15, 2004. On July 15, 2019, the EPA split the Sheboygan County ozone area into two parts, identified as the Inland Sheboygan County, Wisconsin, and the Shoreline Sheboygan County, Wisconsin, areas.

17.  Concerning the Denver-Boulder-Greeley-Ft. Collins-Loveland, CO, area as a former EAC area, see 77 FR 28424, May 14, 2012, “Final Rule To Implement the 1997 8-Hour Ozone National Ambient Air Quality Standard: Classification of Areas That Were Initially Classified Under Subpart 1; Revision of the Anti-Backsliding Provisions To Address 1-Hour Contingency Measure Requirements; Deletion of Obsolete 1-Hour Ozone Standard Provision,” effective date June 13, 2012; see footnote 4 on page 28426 of that notice. Available on the U.S. GPO website at https://www.govinfo.gov/​content/​pkg/​FR-2012-05-14/​pdf/​2012-11232.pdf#page=​2. See also, 69 FR 23858, April 30, 2004, “Air Quality Designations and Classifications for the [1997] 8-Hour Ozone NAAQS; Early Action Compact Areas With Deferred Effective Dates,” final rule effective June 15, 2004. Available on the U.S. GPO website at https://www.govinfo.gov/​content/​pkg/​FR-2004-04-30/​pdf/​04-9152.pdf.

18.  U.S.C. is United States Code.