Additional Air Quality Designations for the 2015 Ozone National Ambient Air Quality Standards

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

This rule establishes initial air quality designations for certain areas in the United States, including areas of Indian country, for the 2015 primary and secondary national ambient air quality standards (NAAQS) for ozone. On November 6, 2017, the Environmental Protection Agency (EPA) designated about 85 percent of the country as attainment/unclassifiable and three counties as unclassifiable. In this action, the EPA is designating all remaining areas, except for eight counties in the San Antonio, Texas metropolitan area. Areas are being designated as either nonattainment, attainment/unclassifiable, or unclassifiable. Areas designated as nonattainment are also being classified by operation of law according to the severity of their air quality problems. The classification categories are Marginal, Moderate, Serious, Severe, and Extreme. In addition, five nonattainment areas in California are being voluntarily reclassified to a higher classification.

DATE:

The effective date of this rule is August 3, 2018.

ADDRESSES:

The EPA has established a docket for this action under Docket ID NO. EPA-HQ-OAR-2017-0548. All documents in the docket are listed in the index at http://www.regulations.gov. Although listed in the index, some information is not publicly available, i.e., 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. Publicly available docket materials are available either electronically in the docket or in hard copy at the EPA Docket Center, EPA WJC West Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the Office of Air and Radiation Docket and Information Center is (202) 566-1742.

In addition, the EPA has established a website for this rulemaking at https://www.epa.gov/ozone-designations. The website includes the EPA's final designations, as well as designation recommendation letters from states and tribes, the EPA's 120-letters notifying the states whether EPA intends to modify the state's recommendation, technical support documents, responses to comments and other related technical information.

FOR FURTHER INFORMATION CONTACT:

Denise Scott, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Mail Code C539-01, Research Triangle Park, NC 27711, phone number (919) 541-4280 or by email at: scott.denise@epa.gov.

Regional Office Contacts

Region I—Richard Burkhart, telephone (617) 918-1664, email at burkhart.richard@epa.gov.

Region II—Omar Hammad, telephone (212) 637-3347, email at hammad.omar@epa.gov.

Region III—Maria Pino, telephone (215) 814-2181, email at pino.maria@epa.gov.

Region IV—Jane Spann, telephone (404) 562-9029, email at spann.jane@epa.gov.

Region V—Kathleen D'Agostino, telephone (312) 886-1767, email at dagostino.kathleen@epa.gov.

Region VI—Carrie Paige, telephone (214) 665-6521, email at paige.carrie@epa.gov.

Region VII—Lachala Kemp. telephone (913) 551-7214, email at kemp.lachala@epa.gov.

Region VIII—Chris Dresser, telephone (303) 312-6385, email at dresser.chris@epa.gov.

Region IX—Ashley Graham, telephone (415) 972-3877, email at graham.ashleyr@epa.gov.

Region X—Karl Pepple, telephone (206) 553-1778, email at pepple.karl@epa.gov.

SUPPLEMENTARY INFORMATION:

The public may inspect the rule and state-specific technical support information at the following locations:

Table of Contents

The following is an outline of the preamble.

I. Preamble Glossary of Terms and Acronyms

II. What is the purpose of this action?

III. What is ozone and how is it formed?

IV. What are the 2015 ozone NAAQS and the health and welfare concerns they address?

V. What are the CAA requirements for air quality designations?

VI. What is the chronology for this designations rule and what guidance did the EPA provide?

VII. What air quality data has the EPA used to designate areas for the 2015 ozone NAAQS?

VIII. What are the ozone air quality classifications?

IX. What action is EPA taking to reclassify five California nonattainment areas?

X. How can states request that an area within 5 percent of the upper or lower limit of a classification threshold be reclassified?

A. Five Percent Reclassifications to a Lower Classification

B. Five Percent Reclassifications to a Higher Classification

C. Timing of the 5 Percent Reclassifications

XI. Determining Rural Transport Areas

XII. How do designations affect Indian country?

XIII. Where can I find information forming the basis for this rule and exchanges between the EPA, states, and tribes related to this rule?

XIV. Environmental Justice Concerns

XV. Statutory and Executive Order Reviews

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

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

C. Paperwork Reduction Act

D. Regulatory Flexibility Act

E. Unfunded Mandates Reform Act

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

M. Judicial Review

I. Preamble Glossary of Terms and Acronyms

The following are abbreviations of terms used in the preamble.

APA Administrative Procedure Act

CAA Clean Air Act

CFR Code of Federal Regulations

DC District of Columbia

EPA Environmental Protection Agency

FR Federal Register

NAAQS National Ambient Air Quality Standards

NO_X Nitrogen Oxides

NTTAA National Technology Transfer and Advancement Act

PPM Parts per million

RFA Regulatory Flexibility Act

RTA Rural Transport Area

UMRA Unfunded Mandate Reform Act of 1995

TAR Tribal Authority Rule

U.S. United States

U.S.C. United States Code

VCS Voluntary Consensus Standards

VOC Volatile Organic Compounds

II. What is the purpose of this action?

The purpose of this action is to announce and promulgate initial area designations for certain areas of the country with respect to the 2015 primary and secondary NAAQS for ozone, in accordance with the requirements of Clean Air Act (CAA) section 107(d). The EPA is designating areas as either nonattainment, attainment/unclassifiable, or unclassifiable. In addition, this action announces the classification for nonattainment areas, which occurs by operation of law at the time of designation and is based on the severity of each area's ozone air quality problems. This action also reclassifies five areas in California to a higher classification. The classification categories are Marginal, Moderate, Serious, Severe, and Extreme. The EPA established the air quality thresholds that define the classifications in a separate rule titled, “Implementation of the 2015 National Ambient Air Quality Standards for Ozone: Nonattainment Area Classifications Approach” (Classifications Rule) (83 FR 10376; March 9, 2018).

The list of all areas being designated in this action appear in the regulatory tables included at the end of this final rule. These tables, which will amend 40 CFR part 81, identify the designation and the classification for each nonattainment area.

In this action, the EPA is designating 51 areas as nonattainment. Consistent with the EPA's “Policy for Establishing Separate Air Quality Designations for Areas of Indian Country” (December 20, 2011), the EPA is designating certain lands of the Pechanga Tribe and the Morongo Tribe in Southern California as separate nonattainment areas. Seven of the nonattainment areas are multi-state areas. The EPA is also designating one area as unclassifiable. The EPA is designating all the other areas addressed in this final action, including both state and tribal areas, as attainment/unclassifiable. With this action, the EPA has issued final designations for all areas of the country with the exception of eight counties in the San Antonio, Texas, metropolitan area. The EPA intends to issue final designations for these eight counties by July 17, 2018.

The EPA is basing the designations on the most recent 3 years of certified ozone air quality monitoring data and on an evaluation of factors to assess contributions to nonattainment in nearby areas. State areas designated as nonattainment are subject to planning and emission reduction requirements as specified in CAA part D. Requirements vary according to an area's classification. On November 17, 2016, the EPA proposed an implementation rule to assist states in the development of state implementation plans for attaining the ozone standards (81 FR 81276). The EPA expects to finalize this rule as soon as possible after finalizing the nonattainment area designations for the 2015 ozone NAAQS.

III. What is ozone and how is it formed?

Ground-level ozone is a gas that is formed by the reaction of volatile organic compounds (VOCs) and oxides of nitrogen (NO_X) in the atmosphere in the presence of sunlight. These precursor emissions are emitted by many types of pollution sources, including power plants and industrial emissions sources, on-road and off-road motor vehicles and engines, and smaller sources, collectively referred to as area sources. Ozone is predominately a summertime air pollutant. However, high ozone concentrations have also been observed in cold months, where a few areas in the Western United States (U.S.) have experienced high levels of local VOC and NO_X emissions that have formed ozone when snow is on the ground and temperatures are near or below freezing. Ozone and ozone precursors can be transported to an area from sources in nearby areas or from sources located hundreds of miles away. For purposes of determining ozone nonattainment area boundaries, the CAA requires the EPA to include areas that contribute to nearby violations of the NAAQS.

IV. What are the 2015 ozone NAAQS and the health and welfare concerns they address?

On October 1, 2015, the EPA revised both the primary and secondary NAAQS for ozone to a level of 0.070 parts per million (ppm) (annual fourth-highest daily maximum 8-hour average concentration, averaged over 3 years). The level of the ozone NAAQS previously set in 2008 is 0.75 ppm. The 2015 ozone NAAQS retain the same general form and averaging time as the 2008 ozone NAAQS.

The primary ozone standards provide protection for children, older adults, and people with asthma or other lung diseases, and other at-risk populations against an array of adverse health effects that include reduced lung function, increased respiratory symptoms and pulmonary inflammation; effects that contribute to emergency department visits or hospital admissions; and mortality. The secondary ozone standards protect against adverse effects to the public welfare, including those related to impacts on sensitive vegetation and forested ecosystems.

V. What are the CAA requirements for air quality designations?

When the EPA promulgates a new or revised NAAQS, the EPA is required to designate all areas in the country as nonattainment, attainment, or unclassifiable, pursuant to section 107(d)(1) of the CAA. Section 107(d)(1)(A)(i) of the CAA defines a nonattainment area as, “any area that does not meet (or that contributes to ambient air quality in a nearby area that does not meet) the national primary or secondary ambient air quality standard for the pollutant.” If an area meets either prong of this definition, states should recommend and the EPA is obligated to designate the area as “nonattainment.” CAA section 107(d)(1)(A)(ii) defines an attainment area as any area that does not meet the definition of nonattainment and that meets the NAAQS. CAA section 107(d)(1)(A)(iii) provides that any area that the EPA cannot designate on the basis of available information as meeting or not meeting the standards should be designated as “unclassifiable.” Historically for ozone, the EPA has designated most areas that do not meet the definition of nonattainment as “unclassifiable/attainment.” This category includes areas that have air quality monitoring data meeting the NAAQS and areas that do not have monitors but for which the EPA has no evidence that the areas may be violating the NAAQS or contributing to a nearby violation. In the designations for the 2015 ozone NAAQS, the EPA has reversed the order of the label to be attainment/unclassifiable to better convey the definition of the designation category and so that the category is more easily distinguished from the separate unclassifiable category. In a few instances, based on circumstances where some monitoring data are available but are not sufficient for a determination that an area is or is not attaining the NAAQS, the EPA has designated an area as “unclassifiable.”

Section 107(d)(1)(B) of the CAA requires the EPA to issue initial area designations within 2 years of promulgating a new or revised NAAQS. However, if the Administrator has insufficient information to make these designations within that time frame, the EPA has the authority to extend the deadline for designation decisions by up to 1 additional year.

By not later than 1 year after the promulgation of a new or revised NAAQS, each state governor is required to recommend air quality designations, including the appropriate boundaries for areas, to the EPA. (See CAA section 107(d)(1)(A).) The EPA reviews those state recommendations and is authorized to make any modifications the Administrator deems necessary. The statute does not define the term “necessary,” but the EPA interprets this to authorize the Administrator to modify designation recommendations that are inconsistent with the statutory language, including modification of recommended boundaries for nonattainment areas that are not supported by the facts or analysis. If the EPA intends to modify a state's recommendation, section 107(d)(1)(B) of the CAA requires the EPA to notify the state of any such intended modifications not less than 120 days prior to the EPA's promulgation of the final designation. These notifications are commonly known as the “120-day letters.” If the state does not agree with the EPA's intended modification, the 120-day period provides an opportunity for the state to demonstrate to the EPA why it believes any modification proposed by the EPA is inappropriate. If a state fails to provide any recommendation for an area, in whole or in part, the EPA must promulgate a designation that the Administrator deems appropriate.

The terms “contributes to” and “nearby” in the definition of a nonattainment area are not defined in the statute and the EPA has discretion to interpret these ambiguous terms, based on considerations such as the nature of a specific pollutant, the types of sources that may contribute to violations, the form of the relevant NAAQS, and any other relevant information. The EPA does not interpret the statute to require the agency to establish bright line tests or thresholds for what constitutes “contribution” or “nearby” for purposes of designations.

Section 301(d) of the CAA authorizes the EPA to approve eligible Indian tribes to implement provisions of the CAA on Indian reservations and other areas within the tribes' jurisdiction. The Tribal Authority Rule (TAR) (40 CFR part 49), which implements section 301(d) of the CAA, sets forth the criteria and process for tribes to apply to the EPA for eligibility to administer CAA programs. The designations process contained in section 107(d) of the CAA is included among those provisions determined to be appropriate by the EPA for treatment of tribes in the same manner as states. Under the TAR, tribes generally are not subject to the same submission schedules imposed by the CAA on states. As authorized by the TAR, tribes may seek eligibility to submit designation recommendations to the EPA.

VI. What is the chronology for this designations rule and what guidance did the EPA provide?

On February 25, 2016, the EPA issued guidance for states and tribal agencies to use for purposes of making designation recommendations as required by CAA section 107(d)(1)(A). (See February 25, 2016, memorandum from Janet G. McCabe, Acting Assistant Administrator, to Regional Administrators, Regions 1-10, titled, “Area Designations for the 2015 Ozone National Ambient Air Quality Standards” (Designations Guidance)). The Designations Guidance provided the anticipated timeline for designations and identified important factors that the EPA recommended states and tribes consider in making their recommendations and that EPA intended to consider in promulgating designations. These factors include air quality data, emissions and emissions-related data, meteorological data, geography/topography, and jurisdictional boundaries. In the Designations Guidance, the EPA asked that states and tribes submit their designation recommendations, including appropriate area boundaries, to the EPA by October 1, 2016. The EPA had previously issued two guidance memoranda related to designating areas of Indian country that also apply for designations for the 2015 ozone NAAQS. (See December 20, 2011, memorandum from Stephen D. Page, Director, Office of Air Quality Planning and Standards, to Regional Air Directors, Regions I-X, titled, “Policy for Establishing Separate Air Quality Designations for Areas of Indian Country,” and December 20, 2011, memorandum from Stephen D. Page, Director, Office of Air Quality Planning and Standards, to Regional Air Directors, Regions I-X, titled, “Guidance to Regions for Working with Tribes during the National Ambient Air Quality Standards (NAAQS) Designations Process.”) In the Designation Guidance, the EPA indicated the agency expected to complete the initial designations for the 2015 ozone NAAQS on a 2-year schedule, by October 1, 2017, consistent with CAA 107(d)(1)(B)(i).

On November 6, 2017, the EPA designated as attainment/unclassifiable 2,646 counties, including tribal lands within those counties, for which the states recommended a designation of attainment or attainment/unclassifiable. This represents about 85 percent of the counties in the U.S. The EPA also designated a three-county area in Washington as unclassifiable as recommended by the state. Consistent with the EPA's Tribal Designation Guidance, the EPA designated two areas of Indian country (Fond du Lac Band of Lake Superior Chippewa Indians and Forest County Potawatomi Community) as separate attainment/unclassifiable areas.

On December 4, 2017, a coalition of environmental and health organizations filed suit against the Administrator claiming that EPA failed to meet its mandatory obligation to designate all areas of the United States for the 2015 ozone NAAQS by October 1, 2017. American Lung Association, et al. v. Pruitt (N.D. Cal. No. 4:17-cv-06900). A coalition of 15n states also filed a similar suit on December 5, 2017. State of California v. Pruitt (N.D. Cal. No. 4:17-cv-06936). The United States District Court for the Northern District of California heard arguments on plaintiffs' motions for summary judgment in both cases on February 22, 2018. In a March 12, 2018, order, the court granted the motions in part and ordered the EPA “to promulgate final designations for all areas of the country except for the eight undesignated counties composing the San Antonio area no later than April 30, 2018” and “to promulgate final designations for the San Antonio area no later than 127 days from the date of this order.” The designation deadline for eight-county San Antonio area is July 17, 2018.

On or about December 22, 2017, the EPA sent 120-day letters to Governors and tribal leaders notifying them of the EPA's preliminary response to their designation recommendations for all areas of the country not designated in the November 2017 action, with the exception of eight counties in the San Antonio metropolitan area. For the areas addressed in the 120-day letters, the EPA requested that states and tribes submit any additional information that they wanted the EPA to consider in making final designation decisions by February 28, 2018, including any certified 2017 air quality monitoring data.

Although not required by section 107(d)(2)(B) of the CAA, the EPA also provided a 30-day public comment period on the designation recommendations from states and tribes and the EPA's intended designations addressed in the 120-day letters to states and tribes. The EPA announced the public comment period in the Federal Register on January 5, 2018 (83 FR 651). In that notice, the EPA indicated that the agency intended to complete the designations for the areas addressed in the responses to states and tribes by April 30, 2018.

State and tribal recommendations and the EPA's preliminary responses are posted on EPA's website at https://www.epa.gov/ozone-designations and are available in the docket for the designations action. Comments from the states, tribes and the public, and EPA's responses to significant comments, are also available in the docket in the individual technical support documents for specific areas and in a Response to Comments document.

VII. What air quality data has the EPA used to designate areas for the 2015 ozone NAAQS?

The final ozone designations in this action are based primarily on air quality monitoring data from the years 2014-2016, which were the most recent data that states were required to certify at the time the EPA notified the states of its intended modifications to their recommendations. Under 40 CFR 58.16, states are required to report all monitored ozone air quality data and associated quality assurance data within 90 days after the end of each quarterly reporting period, and under 40 CFR part 58.15(a)(2) states are required to submit annual summary reports and a data certification letter to the EPA by May 1 for ozone air quality data collected in the previous calendar year. Thus, at the time of the 120-day letters, the most recent certification obligation was for air quality data from 2016. In the 120-day notification letters to states, the EPA indicated that in order for the EPA to consider air quality data for the period 2015-2017 in the final designation decisions for any area, a state must submit certified, quality assured 2015-2017 air quality monitoring data for the area to the EPA by February 28, 2018. Several states chose to submit early certified air quality data for areas within their states. For those areas, the EPA is basing the final designation decisions on air quality data from 2015-2017.

VIII. What are the ozone air quality classifications?

In accordance with CAA section 181(a)(1), each area designated as nonattainment for the ozone NAAQS is classified by operation of law at the same time as the area is designated by the EPA. Under Subpart 2 of part D of title I of the CAA, state planning and emissions control requirements for ozone are determined, in part, by a nonattainment area's classification. The ozone nonattainment areas are classified based on the severity of their ozone levels (as determined based on the area's “design value,” which represents air quality in the area for the most recent 3 years). The possible classifications are Marginal, Moderate, Serious, Severe, and Extreme. Nonattainment areas with a “lower” classification have ozone levels that are closer to the standard than areas with a “higher” classification. Areas in the lower classification levels have fewer and/or less stringent mandatory air quality planning and control requirements than those in higher classifications. On March 9, 2018 (83 FR 10376), the EPA published the Classifications Rule that establishes how the statutory classifications will apply for the 2015 ozone NAAQS, including the air quality thresholds for each classification category. Each

nonattainment area's design value, based on the most recent 3 years of certified air quality monitoring data, is used to establish the classification for the area. See Table 1.

The regulatory tables included at the end of this action provide the classification for each designated nonattainment area for the 2015 ozone NAAQS based on the design value for the area and the classification thresholds established in the Classification Rule.

IX. What action is EPA taking to reclassify five California nonattainment areas?

The CAA provides states with a mechanism for addressing nonattainment areas that may not be able to attain by the attainment date for their classification. Pursuant to CAA section 181(b)(3), a state may voluntarily request that the EPA reclassify a nonattainment area to a higher classification. The EPA may not deny and must approve any such voluntary reclassification requests. Once an area is reclassified to a higher classification, it becomes subject to the associated additional planning and control requirements for that higher classification, and must attain the standard no later than the maximum attainment date for that classification. Six nonattainment areas in California were granted voluntary reclassifications to a higher classification for both the 1997 and 2008 ozone NAAQS. For the 2008 ozone NAAQS, the EPA proposed to interpret the voluntary reclassification requests for the 1997 ozone NAAQS to also apply for the more stringent 2008 ozone NAAQS, unless the state expressly requested otherwise. As part of the proposal for the Classifications Rule for the 2015 NAAQS, the EPA proposed to again apply previous voluntary reclassifications for potential nonattainment areas in California for the 2015 ozone NAAQS, unless the state of California explicitly requested otherwise in their comments on that proposal (November 17, 2016; 81 FR 81285). These areas included Los Angeles-South Coast Air Basin, San Joaquin Valley, Riverside County (Coachella Valley), Sacramento Metro, Ventura County and Los Angeles-San Bernardino Counties (Western Mojave) areas. The EPA believes this is an appropriate mechanism to address attainment planning for these California areas that were voluntarily reclassified for the 1997 ozone NAAQS and previously used this mechanism for the 2008 ozone NAAQS. The reclassifications will ensure that these areas will have an attainment date for the 2015 ozone NAAQS that is no earlier than the areas' attainment date for the 2008 ozone NAAQS. The EPA proposed this approach in order to minimize the burden on the state of California to separately initiate the voluntary reclassification process again. Areas for which California declined voluntary reclassification would be classified at the time of designation for the 2015 ozone NAAQS based on the most recent 3 years of certified air quality monitoring data. In response to EPA's proposal, California declined reclassification only for the Sacramento Metro area.

Consistent with the comments received from the state of California on the November 2016 proposal, the EPA is applying previous voluntary reclassifications for five of the six California areas originally proposed. The following areas are voluntarily reclassified to a higher classification for the 2015 ozone NAAQS: Ventura County, CA—Serious; Riverside County (Coachella Valley), CA—Severe-15; Los Angeles-San Bernardino Counties (West Mojave Desert), CA—Severe-15; Los Angeles-South Coast Air Basin, CA—Extreme; and San Joaquin Valley, CA—Extreme. These classifications are reflected in the tables at the end of this final rule.

X. How can states request that an area within 5 percent of the upper or lower limit of a classification threshold be reclassified?

Under CAA section 181(a)(4), an ozone nonattainment area may be reclassified to a higher or lower classification (also known as a classification bump up or a bump down) “if an area classified under paragraph (1) (Table 1) would have been classified in another category if the design value in the area were 5 percent greater or 5 percent less than the level on which such classification was based.” That section also states that, “In making such adjustment, the Administrator may consider the number of exceedances of the national primary ambient air quality standard for ozone in the area, the level of pollution transport between the area and other affected areas, including both intrastate and interstate transport, and the mix of sources and air pollutants in the area.”

As noted in the preamble to the rule designating and classifying areas following enactment of the CAA Amendments of 1990, the provisions of section 181(a)(4) grant the Administrator broad discretion in making, or determining not to make, a reclassification. (See 56 FR 56698; November 6, 1991.) In that designation action, the EPA provided criteria to evaluate in determining whether it is appropriate to reclassify a particular area. Because CAA section 181(b)(3) provides that the EPA must grant any state request to reclassify an area to a higher classification, the EPA focused these criteria primarily on how the EPA would assess requests for a lower classification. These criteria are:

Request by state: The EPA does not intend to exercise its authority to reclassify areas on the EPA's own initiative. Rather, the EPA intends to rely on the state to submit a request for a reclassification. A tribe may also submit such a request and, in the case of a multi-state nonattainment area, all affected states must submit the same reclassification request.

Discontinuity: A 5 percent reclassification must not result in an illogical or excessive discontinuity relative to surrounding areas. In particular, in light of the area-wide nature of ozone formation, a reclassification should not create a “donut hole” where an area of one classification is surrounded by areas of higher classification.

Attainment: Evidence should be available that the proposed area would be able to attain by the earlier date specified by the lower classification in the case of a reclassification downward.

Emissions reductions: Evidence should be available that the area would be very likely to achieve the appropriate total percent emission reduction necessary in order to attain in the shorter time period for a reclassification downward.

Trends: Near- and long-term trends in emissions and air quality should support a reclassification. Historical air quality data should indicate substantial air quality improvement for a reclassification downward. Growth projections and emission trends should support a reclassification downward. In addition, the EPA will consider whether vehicle miles traveled and other indicators of emissions are increasing at higher than normal rates.

Years of data: The same years of ozone air quality data used for the initial designation and classification should be used for reclassification requests.

For ozone areas designated in 1991, the EPA approved reclassifications when the area met the first requirement (a request by the state to EPA) and at least some of the other criteria, and did not violate any of the criteria (emissions reductions, trends, etc.). The EPA established the same method and criteria for the purpose of evaluating any reclassification requests under CAA section 181(a)(4) for the 1997 and 2008 ozone NAAQS. The EPA intends to continue to use this same approach for purposes of evaluating any requests for a reclassification for the 2015 ozone NAAQS. For reclassifications downwards, states may only request a reclassification to the next lower classification, and air quality data from prior years cannot be used as justification to be reclassified to an even lower classification.

A. Five Percent Reclassifications to a Lower Classification

For an area to be eligible to be reclassified to a lower classification under section 181(a)(4), the area's design value must be within 5 percent of the upper limit for the next lower classification. For example, an area with a Moderate design value of no more than 0.085 ppm would be eligible to request a reclassification to Marginal because 0.085 ppm is 5 percent more than the upper limit of 0.081 ppm for the Marginal classification. Accordingly, areas with the following design values may be eligible to request a reclassification to the next lower classification: Moderate areas with a design value of 0.085 ppm or less; Serious areas with a design value of 0.097 ppm or less; Severe areas with a design value of 0.110 ppm or less; and for Extreme areas with a design value of 0.171 ppm or less.

B. Five Percent Reclassifications to a Higher Classification

An ozone nonattainment area may also be reclassified under section 181(a)(4) to the next higher classification. As with 5 percent reclassifications to a lower classification, the EPA does not intend to exercise its authority to reclassify areas to a higher classification on the EPA's own initiative. Rather, the EPA intends to rely on the state to submit a request for such a reclassification. Under this CAA provision, areas with the following design values are eligible to request a reclassification to the next higher classification: Marginal areas with a design value of 0.076 ppm or more; Moderate areas with a design value of 0.088 ppm or more; and Serious areas with a design value of 0.099 ppm or more. Note, as discussed Section IX of this preamble, under a separate CAA provision, a state may voluntarily request that the EPA reclassify a nonattainment area to a higher classification at any time and the EPA must approve the request.

C. Timing of the Five Percent Reclassifications

A Governor or eligible tribal governing body of any area who wishes to pursue a reclassification should submit all requests and supporting documentation to the EPA Regional Office by July 5, 2018. This relatively short time frame is necessary because CAA section 181(a)(4) only authorizes the Administrator to make such reclassifications within 90 days after the initial classification. The EPA will make its decision by September 4, 2018.

XI. Determining Rural Transport Areas

CAA section 182(h) sets out general criteria for determining whether an area qualifies as a Rural Transport Area (RTA). The statute defines a RTA as an area which is designated nonattainment and neither includes nor is adjacent to any part of a metropolitan statistical area or consolidated metropolitan statistical area as defined at the time of the 1990 CAA amendments. In such cases, the Administrator has discretion to treat the area as a RTA based on a finding that the emissions within the area do not make a significant contribution to the ozone concentrations measured in the area or in other areas. The EPA provided guidance on requesting RTA treatment in the February 25, 2016, memorandum “Area Designations for the 2015 Ozone National Ambient Air Quality Standards.” A RTA, regardless of its nonattainment classification, is treated as meeting the applicable requirements of CAA section 182 (generally relating to submissions required for ozone nonattainment areas) if the area meets the submission requirements of a Marginal area.

Two states requested that the EPA find a nonattainment area in their state to meet the criteria for treatment as a RTA. In a letter dated October 3, 2016, California requested that the EPA make a RTA determination for the Tuscan Buttes nonattainment area. In a letter dated April 20, 2017, Wisconsin requested that the EPA make a RTA determination for the Door County nonattainment area. The EPA has determined that the final nonattainment areas for Tuscan Buttes, California and Door County, Wisconsin, meet the criteria for treatment as RTAs under CAA section 182(h). Documentation supporting these determinations are contained in the final TSDs for California (section 20.0) and Wisconsin (section 3.4), which are available in the public docket for this final action. This determination is reflected in the regulatory tables in 40 CFR part 81 for each state.

XII. How do designations affect Indian country?

All state areas listed in the tables at the end of this document are designated as indicated, and include Indian country geographically located within such areas, except as otherwise noted. Information pertaining to areas of Indian country in these tables is intended for CAA planning purposes only and is not an EPA determination of Indian country land 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 the tables. Consistent with the EPA's Tribal Designation Guidance, and at the request of the tribes, the EPA is designating certain lands of the Pechanga Tribe and the Morongo Tribe in Southern California as separate nonattainment areas. For all other areas, the EPA is designating areas of Indian country along with the adjacent/surrounding state area(s). Where nonattainment areas include both Indian country and state land, coordinated planning will help ensure that the planning decisions made by the states and tribes complement each other and that the nonattainment area makes progress toward attainment and ultimately attains the 2015 ozone NAAQS.

XIII. Where can I find information forming the basis for this rule and exchanges between the EPA, states, and tribes related to this rule?

Information providing the basis for this action is provided in the docket for this rulemaking. The applicable EPA guidance memoranda and copies of correspondence regarding this process between the EPA and the states, tribes, and other parties are available for review at the EPA Docket Center listed above in the addresses section of this document, and on the EPA's ozone designation website at https://www.epa.gov/ozone-designations. State-specific information is available from the EPA Regional Offices at the addresses at the top of this Preamble.

XIV. Environmental Justice Concerns

When the EPA establishes a new or revised NAAQS, the CAA requires the EPA to designate all areas of the U.S. as either nonattainment, attainment, or unclassifiable. This final action addresses designation determinations for the 2015 ozone NAAQS. In addition, nonattainment areas are being classified according to the severity of their ozone air quality problems. Area designations address environmental justice concerns by ensuring that the public is properly informed about the air quality in an area. In locations where air quality does not meet the NAAQS, the CAA requires relevant state authorities to initiate appropriate air quality management actions to ensure that all those residing, working, attending school, or otherwise present in those areas are protected, regardless of minority and economic status.

XV. 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 because it responds to the CAA requirement to promulgate air quality designations after promulgation of a new or revised NAAQS.

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

This action is not an Executive Order 13771 regulatory action because actions such as air quality designations after promulgating a new revised NAAQS are exempt from review under Executive Order 12866.

C. Paperwork Reduction Act (PRA)

This action does not impose an information collection burden under the PRA. This action fulfills the non-discretionary duty for the EPA to promulgate air quality designations after promulgation of a new or revised NAAQS and does not contain any information collection activities.

D. Regulatory Flexibility Act (RFA)

This designation action under CAA section 107(d) is not subject to the RFA. The RFA applies only to rules subject to notice-and-comment rulemaking requirements under the APA, 5 U.S.C. 553, or any other statute. Section 107(d)(2)(B) of the CAA explicitly provides that designations are exempt from the notice-and-comment provisions of the APA. In addition, designations under CAA section 107(d) are not among the list of actions that are subject to the notice-and-comment rulemaking requirements of CAA section 307(d).

E. 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.

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. The division of responsibility between the federal government and the states for purposes of implementing the NAAQS is established under the CAA.

G. 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 consulted with tribal officials early in the process of developing this regulation to permit them to have meaningful and timely input into its development. At the beginning of the designations process, letters were sent to all tribes who were expected to be impacted by designations for the 2015 ozone NAAQS. These letters not only informed the tribes of the overall designations process, but also offered the tribes consultation to ensure early communication and coordination. Additionally, letters were sent to potentially affected tribes indicating the EPA's intended designations for their areas of Indian country. To the extent possible, the EPA included the tribes' input into the final decision-making process for designations of their areas of Indian country for the 2015 ozone NAAQS.

H. 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.

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 and 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 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 XIII of this preamble, “Environmental Justice Concerns.”

L. Congressional Review Act (CRA)

This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the U.S. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

M. Judicial Review

Section 307(b)(1) of the CAA indicates which Federal Courts of Appeal have venue for petitions for 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 for: (i) “any nationally applicable regulations promulgated, or final actions taken, by the Administrator,” or (ii) when such action is locally or regionally applicable, “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.”

This rule that designates areas for the 2015 ozone NAAQS is “nationally applicable” within the meaning of CAA section 307(b)(1). This rule establishes designations for areas across the U.S. for the 2015 ozone NAAQS. At the core of this rulemaking is the EPA's interpretation of the designation provisions in section 107(d)(1) of the CAA, and its application of that interpretation to areas across the country.

For these reasons, the Administrator also is determining that the final designations are of nationwide scope and effect for the purposes of CAA section 307(b)(1). This is particularly appropriate because, in the report on the 1977 Amendments that revised section 307(b)(1) of the CAA, Congress noted that the Administrator's determination that an action is of “nationwide scope or effect” would be appropriate for any action that has a scope or effect beyond a single judicial circuit. H.R. Rep. No. 95-294 at 323, 324, reprinted in 1977 U.S.C.C.A.N. 1402-03. Here, the scope and effect of this rulemaking extends to numerous judicial circuits since the designations apply to areas across the country. In these circumstances, CAA section 307(b)(1) and its legislative history calls for the Administrator to find the rule to be of “nationwide scope or effect” and for venue to be in the District of Columbia Circuit.

Thus, any petitions for review of these final designations must be filed in the Court of Appeals for the District of Columbia Circuit within 60 days from the date of this final action is published in the Federal Register.

List of Subjects in 40 CFR Part 81

• Environmental protection
• Air pollution control
• National parks
• Wilderness areas

For the reasons set forth in the preamble, 40 CFR part 81 is amended as follows:

PART 81—DESIGNATIONS OF AREAS FOR AIR QUALITY PLANNING PURPOSES

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

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

Subpart C—Section 107 Attainment Status Designations

2. Section 81.302 is amended by revising the table titled “Alaska—2015 8-Hour Ozone NAAQS (Primary and Secondary)” to read as follows:

3. Section 81. 303 is amended by revising the table titled “Arizona—2015 8-Hour Ozone NAAQS (Primary and Secondary)” to read as follows:

4. Section 81.305 is amended by revising the table titled “California—2015 8-Hour Ozone NAAQS (Primary and Secondary)” to read as follows:

5. Section 81.306 is amended by revising the table titled “Colorado—2015 8-Hour Ozone NAAQS (Primary and Secondary)” to read as follows:

6. Section 81.307 is amended by adding a new table titled “Connecticut—2015 8-Hour Ozone NAAQS (Primary and Secondary)” following the table titled “Connecticut—2008 8-Hour Ozone NAAQS (Primary and Secondary)” to read as follows:

7. Section 81.308 is amended by adding a new table titled “Delaware—2015 8-Hour Ozone NAAQS (Primary and Secondary)” following the table titled “Delaware—2008 8-Hour Ozone NAAQS (Primary and Secondary)” to read as follows:

8. Section 81.309 is amended by adding a new table titled “District of Columbia—2015 8-Hour Ozone NAAQS (Primary and Secondary)” following the table titled “District of Columbia—2008 8-Hour Ozone NAAQS (Primary and Secondary)” to read as follows:

9. Section 81.310 is amended by revising the table titled “Florida—2015 8-Hour Ozone NAAQS (Primary and Secondary)” to read as follows:

10. Section 81.311 is amended by revising the table titled “Georgia—2015 8-Hour Ozone NAAQS (Primary and Secondary)” to read as follows:

11. Section 81.314 is amended by revising the table titled “Illinois—2015 8-Hour Ozone NAAQS (Primary and Secondary)” to read as follows:

12. Section 81.315 is amended by revising the table titled “Indiana—2015 8-Hour Ozone NAAQS (Primary and Secondary)” to read as follows:

13. Section 81.318 is amended by revising the table titled “Kentucky—2015 8-Hour Ozone NAAQS (Primary and Secondary)” to read as follows:

14. Section 81.319 is amended by revising the table titled “Louisiana—2015 8-Hour Ozone NAAQS (Primary and Secondary)” to read as follows:

15. Section 81.321 is amended by revising the table titled “Maryland—2015 8-Hour Ozone NAAQS (Primary and Secondary)” to read as follows:

16. Section 81.322 is amended by revising the table titled “Massachusetts—2015 8-Hour Ozone NAAQS (Primary and Secondary)” to read as follows:

17. Section 81.323 is amended by revising the table titled “Michigan—2015 8-Hour Ozone NAAQS (Primary and Secondary)” to read as follows:

18. Section 81.326 is amended by revising the table titled “Missouri—2015 8-Hour Ozone NAAQS (Primary and Secondary)” to read as follows: