[Federal Register Volume 86, Number 143 (Thursday, July 29, 2021)]
[Rules and Regulations]
[Pages 40784-40787]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-15106]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2019-0611; FRL-7505-03-OAR]
RIN 2060-AU54


Implementation of the Revoked 1997 8-Hour Ozone National Ambient 
Air Quality Standards; Areas That Attained by the Attainment Date

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is codifying 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 revoked 1997 ozone NAAQS) by the applicable attainment dates. 
This rule finalizes EPA's proposed determination that the following 
areas timely attained the standards: 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.

DATES: This final rule is effective August 30, 2021.

ADDRESSES: The EPA established Docket ID No. EPA-HQ-OAR-2019-0611 for 
this action. All documents in the docket are listed in the http://www.regulations.gov website. Although listed in the index, some 
information is not publicly available, e.g., confidential business 
information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically in the docket or in hard copy at the EPA Docket Center 
Reading Room, WJC West Building, Room 3334, 1301 Constitution Avenue 
NW, Washington, DC 20004. Out of an abundance of caution for members of 
the public and our staff, the EPA Docket Center and Reading Room are 
closed to the public, with limited exceptions, to reduce the risk of 
transmitting COVID-19. Our Docket Center staff will continue to provide 
remote customer service via email, phone, and webform. For further 
information on EPA Docket Center services and the current status, 
please visit us online at https://www.epa.gov/dockets. The hours of 
operation at the EPA Docket Center Reading Room are 8:30 a.m.-4:30 
p.m., Monday-Friday. The telephone number for the EPA Docket Center is 
(202) 566-1744.

FOR FURTHER INFORMATION CONTACT: For further general information on 
this 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 (919) 541-4383;

[[Page 40785]]

fax number: (919) 541-5315; email address: raps.virginia@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. Response to Comments
III. 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. Paperwork Reduction Act (PRA)
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act (UMRA)
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act (NTTAA)
    J. Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act (CRA)
    L. Judicial Review

I. Background

    In February 2019, the EPA sent letters to the state air agencies of 
New York, Wisconsin, Colorado and California affirming that a total of 
nine areas within these states attained the revoked 1997 ozone NAAQS by 
the applicable attainment dates. On October 9, 2020,\1\ the EPA 
concurrently published a proposal and a direct final rule to codify the 
findings effective on January 7, 2021. Because an adverse comment was 
received prior to the end of the comment period, a notice to withdraw 
the direct final rule was published in the Federal Register and became 
effective on December 9, 2020. Consequently, the EPA is now acting on 
the proposal by publishing this final rule. Entities potentially 
affected directly by this final action include the public seeking 
information on the air quality status of the areas codified by this 
final rule, and state air agencies with jurisdiction over areas found 
to have attained by the attainment date. Further, these areas are, 
therefore, not subject to anti-backsliding consequences for failure to 
timely attain the standards.
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    \1\ See ``Updates to 40 CFR part 52 for Areas that Attained by 
the Attainment Date,'' proposal [85 FR 64089, October 9, 2020] and 
direct final rule [85 FR 64046, October 9, 2020].
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II. Response to Comments

    The EPA received an anonymous comment on the proposal suggesting 
that the attainment year 2007-2009 design value (DV) for Denver-
Boulder-Greeley-Ft. Collins-Loveland, Colorado, (herein referred to as 
the Denver area) was incorrect. Instead of 0.078 parts per million 
(ppm), as given in Table 1 of the direct final rule and in the 
supporting letter to the Colorado Department of Public Health and 
Environment (CDPHE) from Region 8 dated February 8, 2019, the commenter 
suggested the DV for that time period was actually 0.082 ppm, citing 
the data provided on the EPA website at https://www.epa.gov/air-trends/air-quality-design-values. The EPA investigated the information in the 
comment letter and found that the EPA incorrectly assigned the Denver 
area an attainment year DV of 0.078 ppm where, according to monitoring 
data for 2007-2009, the correct DV for the Denver area was 0.082 ppm. 
As a result of its investigation, the EPA Region 8 office issued a 
letter dated November 13, 2020, correcting the 2007-2009 DV for the 
Denver area and notifying Mr. Garry Kaufman, Director, CDPHE, of the 
correction to the DV with the assurance that the correction will be 
formalized through a final rule published in the Federal Register. The 
correction changing the 2007-2009 DV for the Denver area from 0.078 ppm 
to 0.082 ppm is made in Table 1 in this final rule. The EPA notes that 
the revoked 1997 ozone NAAQS, effective on September 16, 1997 [62 FR 
38855, July 18, 1997], was established at 0.08 ppm, which means that an 
area's attaining DV may in effect be as high as 0.084 ppm using the 
standard rounding convention to three decimal places.\2\ Therefore, the 
correct 2007-2009 DV of 0.082 ppm shows that the Denver area timely 
attained the revoked 1997 ozone NAAQS.
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    \2\ See ``National Ambient Air Quality Standards for Ozone'' [73 
FR 16435, 16437, Mar. 27, 2008], section I.C. Available on the U.S. 
GPO website at https://www.govinfo.gov/content/pkg/FR-2008-03-27/pdf/E8-5645.pdf.
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    The proposal received three other comments. One was complimentary 
to the EPA's proposal suggesting it was a good idea to show the states' 
success in attaining the revoked 1997 ozone NAAQS. The remaining two 
comments were beyond the scope of this action.

III. Final Action

    On October 9, 2020, the EPA issued a proposal to codify in 40 CFR 
part 52 its findings that nine areas factually attained the revoked 
1997 ozone NAAQS by the applicable attainment dates. This rule provides 
the EPA's response to comments on the proposal and finalizes the action 
as proposed.
    The areas that attained the revoked 1997 8-hour ozone NAAQS by the 
attainment date and the associated DV information are summarized in 
Table 1.\3\
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    \3\ The Denver-Boulder-Greeley-Ft. Collins-Loveland, CO, area is 
identified as Denver Metro/North Front Range, CO, (DMNFR) in 40 CFR 
part 81 for the 2015 8-hour ozone NAAQS [77 FR 28424, 28426, May 14, 
2012]. See also, ``Air Quality Designations and Classifications for 
the [1997] 8-Hour Ozone NAAQS; Early Action Compact Areas With 
Deferred Effective Dates'' [69 FR 23858, Apr. 30, 2004]. Available 
on the U.S. GPO website at https://www.govinfo.gov/content/pkg/FR-2004-04-30/pdf/04-9152.pdf.

             Table 1--Areas That Attained the Revoked 1997 8-Hour Ozone NAAQS by the Attainment Date
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                                                                                               Attainment year
                                                                                              design value (DV)
   EPA region            State                 Area name        Applicable attainment date ---------------------
                                                                                             Level     DV years
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2..............  New York.............  Buffalo-Niagara Falls,  June 15, 2010.............    0.076    2007-2009
                                         NY.
                                        Jamestown, NY.........  June 15, 2010.............    0.079    2007-2009
                                        Jefferson County, NY..  June 15, 2010.............    0.074    2007-2009
                                        Poughkeepsie, NY......  June 15, 2010.............    0.078    2007-2009
5..............  Wisconsin A..........  Shoreline Sheboygan     June 15, 2010.............    0.079    2007-2009
                                         County, WI.
                                        Inland Sheboygan
                                         County, WI.
8..............  Colorado.............  Denver-Boulder-Greeley- November 20, 2010.........    0.082    2007-2009
                                         Ft. Collins-Loveland,
                                         CO.
9..............  California...........  San Francisco Bay       June 15, 2007.............    0.080    2004-2006
                                         Area, CA.

[[Page 40786]]

 
                                        Ventura County, CA....  June 15, 2013.............    0.081    2010-2012
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A On April 30, 2004 [69 FR 23858] and May 21, 2012 [77 FR 30088], EPA designated the entirety of Sheboygan
  County, WI, as nonattainment for the 1997 ozone NAAQS and 2008 ozone NAAQS, respectively. The EPA's February
  8, 2019, letter to the Wisconsin Department of Natural Resources, finding that the area attained the revoked
  1997 ozone NAAQS by the attainment date, applied the finding to the original full-county Sheboygan County, WI,
  area. On July 15, 2019, the EPA revised the original designation by splitting the Sheboygan County, WI, area
  for the revoked 1997 ozone NAAQS and the 2008 ozone NAAQS area into the separate Inland Sheboygan County, WI,
  and Shoreline Sheboygan County, WI, areas [84 FR 33699, Jul. 15, 2019]. This change is reflected in 40 CFR
  81.350 under ``Wisconsin.'' On April 26, 2020 [85 FR 23274] and May 12, 2020 [85 FR 28550], EPA proposed to
  redesignate the Inland Sheboygan, WI, area and Shoreline Sheboygan, WI, areas, respectively, to attainment of
  the 2008 ozone NAAQS. In those proposed rulemakings, EPA correctly indicated that redesignation for the more
  stringent 2008 ozone NAAQS would satisfy the obligation to adopt anti-backsliding requirements under the 1997
  ozone NAAQS as codified at 40 CFR 51.1105(a)(1) and 40 CFR 51.1100(o). In the preamble to EPA's July 10, 2020,
  final redesignation of the Inland Sheboygan, WI, area [85 FR 41400], EPA incorrectly stated that the revoked
  1997 ozone NAAQS was not at issue in the redesignation, and upon EPA's concurrent final redesignation of the
  Shoreline Sheboygan, WI, area [85 FR 41405], EPA failed to comment on any applicability to the revoked 1997
  ozone NAAQS. In fact, as specified in EPA's March 6, 2015 ``SIP Requirements Rule'' for the 2008 ozone NAAQS
  [80 FR 12264], approval of a request for redesignation to attainment for the 2008 ozone NAAQS signifies that
  the state has satisfied its obligations to adopt anti-backsliding requirements for the revoked 1997 ozone
  NAAQS. South Coast Air Quality Management District v. EPA, 882 F.3d 1138, 1151-52 (D.C. Cir. 2018).

IV. Environmental Justice Considerations

    This 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. Paperwork Reduction Act (PRA)

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

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action will not impose any requirements on small entities.

D. 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.\4\ The action imposes 
no enforceable duty on any state, local or tribal governments or the 
private sector.
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    \4\ U.S.C. is United States Code.
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E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

F. 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.

G. 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.

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

    This action is not subject to Executive Order 13211 because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

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

    The EPA believes that this action does not have disproportionately 
high and adverse human health or environmental effects on minority, 
low-income populations and/or indigenous peoples, as specified in 
Executive Order 12898 [59 FR 7629, Feb. 16, 1994]. The documentation 
for this decision is contained in Section IV of this document titled, 
``Environmental Justice Considerations.''

K. 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).

L. 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 September 27, 2021. However, the statute also provides

[[Page 40787]]

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.

Michael S. Regan,
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

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart F--California

0
2. Section 52.282 is amended by adding paragraph (l) to read as 
follows:


Sec.  52.282  Control strategy and regulations: Ozone.

* * * * *
    (l) Determination of attainment by the attainment date. Effective 
August 30, 2021. On February 21, 2019, the EPA determined that San 
Francisco Bay Area, CA, 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, 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.

Subpart G--Colorado

0
3. Section 52.350 is amended by adding paragraph (d) to read as 
follows:


Sec.  52.350  Control strategy: Ozone.

* * * * *
    (d) Determination of attainment by the attainment date for the 
revoked 1997 8-hour ozone National Ambient Air Quality Standards 
(NAAQS). Effective August 30, 2021. On November 13, 2020, the EPA 
determined that Denver-Boulder-Greeley-Ft. Collins-Loveland, CO, 
attained the revoked 1997 8-hour ozone 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.

Subpart HH--New York

0
4. Section 52.1683 is amended by adding paragraph (s) to read as 
follows:


Sec.  52.1683  Control strategy: Ozone.

* * * * *
    (s) Determination of attainment by the attainment date. Effective 
August 30, 2021. On February 4, 2019, the EPA determined that certain 
areas in New York 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 for the 
following areas:
    (1) Buffalo-Niagara Falls, NY (consisting of Erie and Niagara 
Counties).
    (2) Jamestown, NY (consisting of Chautauqua County).
    (3) Jefferson County, NY (consisting of Jefferson County).
    (4) Poughkeepsie, NY (consisting of Dutchess, Orange and Putnam 
Counties).

Subpart YY--Wisconsin

0
5. Section 52.2585 is amended by adding paragraph (oo) to read as 
follows:


Sec.  52.2585  Control strategy: Ozone.

* * * * *
    (oo) Determination of attainment by the attainment date. Effective 
August 30, 2021. Effective August 30, 2021. On February 8, 2019, the 
EPA determined the Sheboygan County, WI, area attained the revoked 1997 
8-hour ozone NAAQS by the attainment date of June 15, 2010. On July 15, 
2019, the EPA revised the designation for the Sheboygan County, WI, 
area for the revoked 1997 8-hour ozone NAAQS and the 2008 8-hour ozone 
NAAQS, by splitting the original full-county area into the separate 
Inland Sheboygan County, WI, and Shoreline Sheboygan County, WI, areas. 
On July 10, 2020, EPA redesignated both the Inland Sheboygan County, 
WI, nonattainment area [85 FR 41400] and the Shoreline Sheboygan 
County, WI, nonattainment area [85 FR 41405] to attainment for the 2008 
8-hour ozone NAAQS. Therefore, under 40 CFR 51.1105(b)(1), the areas 
are no longer subject to the anti-backsliding obligations for the 
revoked 1997 ozone NAAQS under 40 CFR 51.1105(a)(1).

[FR Doc. 2021-15106 Filed 7-28-21; 8:45 am]
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