Air Quality Designations for the 2015 Ozone National Ambient Air Quality Standards (NAAQS)

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

This rule establishes initial air quality designations for most areas in the United States, including most areas of Indian country, for the 2015 primary and secondary national ambient air quality standards (NAAQS) for ozone. In this action, the Environmental Protection Agency (EPA) is designating 2,646 counties, including Indian Country located in those counties, two separate areas of Indian Country, and five territories as Attainment/Unclassifiable and three counties as Unclassifiable.

DATES:

This final rule is effective on January 16, 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 Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave. 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 Web site for this rulemaking at: https://www.epa.gov/ozone-designations. The Web site includes the EPA's final state and tribal designations, as well as state and tribal initial recommendation letters.

FOR FURTHER INFORMATION CONTACT:

For general questions concerning this action, please contact Denise Scott, U.S. EPA, Office of Air Quality Planning and Standards, Air Quality Planning Division, C539-04, Research Triangle Park, North Carolina 27711, telephone: (919) 541-4280, email: at scott.denise@epa.gov.

Regional Office Contacts

Region I—Richard Burkhart (617) 918-1664

Region II—Omar Hammad (212) 637-3347

Region III—Maria Pino (215) 814-2181

Region IV—Jane Spann (404) 562-9029

Region V—Kathleen D'Agostino (312) 886-1767

Region VI—Carrie Paige (214) 665-6521

Region VII—Lachala Kemp (913) 551-7214

Region VIII—Chris Dresser (303) 312-6385

Region IX—Laura Lawrence (415) 972-3407

Region X—Karl Pepple (206) 553-1778

SUPPLEMENTARY INFORMATION:

I. Background

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 revised 2015 ozone NAAQS provide greater protection of public health and the environment than the previous 2008 ozone NAAQS. Although the 2015 ozone NAAQS retain the same general form and averaging time as the 0.75 ppm NAAQS set in 2008, the level is more protective.

II. Purpose of This Action

The purpose of this action is to announce and promulgate initial area designations for most counties in the country and most areas of Indian country with respect to the 2015 primary and secondary NAAQS for ozone, in accordance with the requirements of CAA section 107(d). The EPA is designating these counties as either Attainment/Unclassifiable or Unclassifiable. For other areas not addressed in this final rule, the EPA is not extending the time provided under section 107(d)(1)(B) of the Clean Air Act but is not yet prepared to issue designations. The agency intends to address these areas in a separate future action.

In this action, the EPA is designating as Attainment/Unclassifiable 2,646 counties for which the states recommended a designation of Attainment or Attainment/Unclassifiable. These are counties with one or more monitors attaining the 2015 ozone NAAQS or counties for which the EPA does not have reason to believe are violating the 2015 ozone NAAQS or are contributing to a violation of the 2015 ozone NAAQS in another county.

In addition, the state of Washington recommended a designation of Unclassifiable for three counties—Benton, Franklin, and Walla Walla. Benton County and Franklin County are part of the Kennewick Richland, Washington, CBSA. Walla Walla County is outside of the Kennewick-Richland, Washington, CBSA, but adjacent to Benton County, and the state of Washington recommended it to be included in the Unclassifiable area. A monitor was installed in 2015 in Benton County, Washington. Three consecutive years of certified ozone monitoring data to determine the counties' attainment status is not currently available and would not be available if the EPA were to extend the deadline for designating this area until October 2018. Thus, EPA is designating this area as Unclassifiable, consistent with the state's recommendation.

Consistent with the EPA's “Policy for Establishing Separate Air Quality Designations for Areas of Indian Country” (December 20, 2011), the EPA is designating two areas of Indian country (Fond du Lac Band of Lake Superior Chippewa Indians and Forest County Potawatomi Community) as separate Attainment/Unclassifiable areas. Both the Fond du Lac Band of Lake Superior Chippewa Indians and the Forest County Potawatomi submitted attainment recommendations based on air quality data from ozone monitors located on their respective tribal lands.

III. Public Participation in the Designation Process

Section 107(d)(2)(B) of the CAA provides that initial area designations under CAA section 107(d)(1) are not subject to the notice-and-comment rulemaking procedures of the Administrative Procedure Act (APA), but that “nothing herein shall be construed as precluding such public notice and comment whenever possible.” The EPA is promulgating these designations for 2,649 counties including Indian Country located in those counties, two separate areas of Indian Country, and five territories without notice-and-comment, because we believe that the designations pursuant to this final action are noncontroversial and the designations are consistent with the recommendations of the states and tribes in which these counties and tribal lands are located. Any party that is concerned about one or more of the area designations finalized in this action may file a petition for reconsideration with the Administrator.

IV. 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, a few areas in the Western U.S. have experienced high levels of ozone in the wintertime. Ozone and ozone precursors can be transported to an area from sources in nearby areas or from sources located hundreds of miles away.

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

As discussed in Section I of this preamble, on October 1, 2015, the EPA revised both the primary and secondary NAAQS for ozone to a level of 0.070 ppm (annual fourth-highest daily maximum 8-hour average concentration, averaged over 3 years) to provide increased protection of public health and the environment.

The EPA lowered the primary 8-hour ozone standard from 0.075 ppm to 0.070 ppm to protect against health effects associated with ozone exposure, including a number of harmful effects on the respiratory system, including difficulty breathing, inflammation of the airways, and aggravation of lung diseases such as asthma and chronic obstructive pulmonary disease, and increased premature death from heart or lung disease. The EPA also revised the level of the secondary 8-hour ozone standard from 0.075 ppm to 0.070 ppm to protect against welfare effects, including impacts on sensitive vegetation and forested ecosystems.

VI. CAA Requirements

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. 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, then 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 designates most areas that do not meet the definition of Nonattainment as “Unclassifiable/Attainment.” In a few instances, based on circumstances where some monitoring data are available but is 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 by the CAA to recommend air quality designations, including the appropriate boundaries for areas, to the EPA. 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 definitions of nonattainment, attainment and unclassifiable, 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 standards for the pollutant, and 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.

VII. Environmental Justice Concerns

When the EPA establishes a new or revised NAAQS, the CAA requires the EPA to designate all areas of the United States as either nonattainment, attainment, or unclassifiable. This final action addresses designation determinations for 2,649 counties including Indian Country located in those counties, two separate areas of Indian country, and five territories for the 2015 ozone NAAQS. 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.

VIII. 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 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 Government

This action does not have tribal implications. It will neither impose substantial direct compliance costs on federally recognized tribal governments, nor preempt tribal law. The CAA provides for states and eligible tribes to develop plans to regulate emissions of air pollutants within their areas, as necessary, based on the designations. The TAR provides tribes the opportunity to apply for eligibility to develop and implement CAA programs, such as programs to attain and maintain the ozone NAAQS, but it leaves to the discretion of the tribe the decision of whether to apply to develop these programs and which programs, or appropriate elements of a program, the tribe will seek to adopt. This rule does not have a substantial direct effect on one or more Indian tribes.

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 VII 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 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 the same 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 final designations must be filed in the Court of Appeals for the District of Columbia Circuit within 60 days from the date 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—DESIGNATION 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 81.301 is amended by adding a table titled “Alabama—2015 8-Hour Ozone NAAQS (Primary and Secondary)” following the table titled “Alabama—2008 8-Hour Ozone NAAQS (Primary and secondary)” to read as follows:

3. Section 81.302 is amended by adding a table titled “Alaska—2015 8-Hour Ozone NAAQS (Primary and Secondary)” following the table titled “Alaska—2008 8-Hour Ozone NAAQS (Primary and secondary)” to read as follows:

4. Section 81.303 is amended by adding a table titled “Arizona—2015 8-Hour Ozone NAAQS (Primary and Secondary)” following the table titled “Arizona—2008 8-Hour Ozone NAAQS (Primary and secondary)” to read as follows:

5. Section 81.304 is amended by adding a table titled “Arkansas—2015 8-Hour Ozone NAAQS (Primary and Secondary)” following the table titled “Arkansas—2008 8-Hour Ozone NAAQS (Primary and secondary)” to read as follows:

6. Section 81.305 is amended by adding a table titled “California—2015 8-Hour Ozone NAAQS (Primary and Secondary)” following the table titled “California—2008 8-Hour Ozone NAAQS (Primary and secondary)” to read as follows:

7. Section 81.306 is amended by adding a table titled “Colorado—2015 8-Hour Ozone NAAQS (Primary and Secondary)” following the table titled “Colorado—2008 8-Hour Ozone NAAQS (Primary and secondary)” to read as follows:

8. Section 81.310 is amended by adding a table titled “Florida—2015 8-Hour Ozone NAAQS (Primary and Secondary)” following the table titled “Florida—2008 8-Hour Ozone NAAQS (Primary and secondary)” to read as follows:

9. Section 81.311 is amended by adding a table titled “Georgia—2015 8-Hour Ozone NAAQS (Primary and Secondary)” following the table titled “Georgia—2008 8-Hour Ozone NAAQS (Primary and secondary)” to read as follows:

10. Section 81.312 is amended by adding a table titled “Hawaii—2015 8-Hour Ozone NAAQS (Primary and Secondary)” following the table titled “Hawaii—2008 8-Hour Ozone NAAQS (Primary and secondary)” to read as follows:

11. Section 81.313 is amended by adding a table titled “Idaho—2015 8-Hour Ozone NAAQS (Primary and Secondary)” following the table titled “Idaho—2008 8-Hour Ozone NAAQS (Primary and secondary)” to read as follows:

12. Section 81.314 is amended by adding a table titled “Illinois—2015 8-Hour Ozone NAAQS (Primary and Secondary)” following the table titled “Illinois—2008 8-Hour Ozone NAAQS (Primary and secondary)” to read as follows:

13. Section 81.315 is amended by adding a table titled “Indiana—2015 8-Hour Ozone NAAQS (Primary and Secondary)” following the table titled “Indiana—2008 8-Hour Ozone NAAQS (Primary and secondary)” to read as follows:

14. Section 81.316 is amended by adding a table titled “Iowa—2015 8-Hour Ozone NAAQS (Primary and Secondary)” following the table titled “Iowa—2008 8-Hour Ozone NAAQS (Primary and secondary)” to read as follows:

15. Section 81.317 is amended by adding a table titled “Kansas—2015 8-Hour Ozone NAAQS (Primary and Secondary)” following the table titled “Kansas—2008 8-Hour Ozone NAAQS (Primary and secondary)” to read as follows:

16. Section 81.318 is amended by adding a table titled “Kentucky—2015 8-Hour Ozone NAAQS (Primary and Secondary)” following the table titled “Kentucky—2008 8-Hour Ozone NAAQS (Primary and secondary)” to read as follows:

17. Section 81.319 is amended by adding a table titled “Louisiana—2015 8-Hour Ozone NAAQS (Primary and Secondary)” following the table titled “Louisiana—2008 8-Hour Ozone NAAQS (Primary and secondary)” to read as follows:

18. Section 81.320 is amended by adding a table titled “Maine—20158-Hour Ozone NAAQS (Primary and Secondary)” following the table titled “Maine—2008 8-Hour Ozone NAAQS (Primary and secondary)” to read as follows:

19. Section 81.321 is amended by adding a table titled “Maryland—2015 8-Hour Ozone NAAQS (Primary and Secondary)” following the table titled “Maryland—2008 8-Hour Ozone NAAQS (Primary and secondary)” to read as follows:

20. Section 81.322 is amended by adding a table titled “Massachusetts—2015 8-Hour Ozone NAAQS (Primary and Secondary)” following the table titled “Massachusetts—2008 8-Hour Ozone NAAQS (Primary and secondary)” to read as follows:

21. Section 81.323 is amended by adding a table titled “Michigan—2015 8-Hour Ozone NAAQS (Primary and Secondary)” following the table titled “Michigan—2008 8-Hour Ozone NAAQS (Primary and secondary)” to read as follows:

22. Section 81.324 is amended by adding a table titled “Minnesota—2015 8-Hour Ozone NAAQS (Primary and Secondary)” following the table titled “Minnesota—2008 8-Hour Ozone NAAQS (Primary and secondary)” to read as follows:

23. Section 81.325 is amended by adding a table titled “Mississippi—2015 8-Hour Ozone NAAQS (Primary and Secondary)” following the table titled “Mississippi—2008 8-Hour Ozone NAAQS (Primary and secondary)” to read as follows: