[Federal Register Volume 87, Number 71 (Wednesday, April 13, 2022)]
[Proposed Rules]
[Pages 21825-21842]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-07509]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-HQ-OAR-2021-0741; FRL-8426-01-OAR]
RIN 2060-AV33


Determinations of Attainment by the Attainment Date, Extension of 
the Attainment Date, and Reclassification of Areas Classified as 
Serious for the 2008 Ozone National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) proposes three 
actions pursuant to section 181(b)(2) of the Clean Air Act (CAA) 
related to seven areas classified as ``Serious'' for the 2008 ozone 
National Ambient Air Quality Standards (NAAQS). First, the Agency 
proposes to determine that one area attained the 2008 ozone NAAQS by 
the July 20, 2021, attainment date. Second, the Agency proposes to deny 
a request for a 1-year attainment date extension for one area and to 
determine that the area failed to attain the 2008 ozone NAAQS by the 
attainment date, while also taking comment on granting that request. 
Third, the Agency proposes to determine that five areas failed to 
attain the 2008 ozone NAAQS by the attainment date and do not qualify 
for a 1-year attainment date extension.. The effect of failing to 
attain by the attainment date is that such areas will be reclassified 
by operation of law to ``Severe'' upon the effective date of the final 
reclassification notice. Except for one separate tribal area, states 
will need to submit state implementation plan (SIP) revisions that meet 
the statutory and regulatory requirements for any areas reclassified as 
Severe for the 2008 ozone NAAQS. The EPA proposes deadlines for 
submission of those SIP revisions and for implementation of the related 
control requirements. Additionally, for any areas reclassified as 
Severe, where not already prohibited, the CAA would prohibit the sale 
of conventional gasoline and require that federal reformulated gasoline 
instead be sold beginning 1 year after the effective date of the 
reclassification. This action, when finalized, will fulfill the EPA's 
statutory obligation to determine whether ozone nonattainment areas 
attained the NAAQS by the attainment date and to publish a document in 
the Federal Register identifying each area that is determined as having 
failed to attain and identifying the reclassification. Several areas 
included in this proposed rule are also addressed in a separate 
rulemaking to determine whether areas classified as ``Marginal'' for 
the 2015 ozone NAAQS attained the standard by the applicable attainment 
date of August 3, 2021 (see Docket ID EPA-HQ-OAR-2021-0742).

DATES: Comments. Written comments must be received on or before June 
13, 2022.
    Virtual public hearing. The virtual hearing will be held on May 9, 
2022.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OAR-2021-0741, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov/ 
(our preferred method). Follow the online instructions for submitting 
comments.
     Email: [email protected]. Include Docket ID No. EPA-
HQ-OAR-2021-0741 in the subject line of the message.
     Fax: (202) 566-9744.
     Mail: U.S. Environmental Protection Agency, EPA Docket 
Center, Office of Air and Radiation Docket, Mail Code 28221T, 1200 
Pennsylvania Avenue NW, Washington, DC 20460.
     Hand Delivery or Courier (by scheduled appointment only): 
EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution 
Avenue NW, Washington, DC 20004. The Docket Center's hours of 
operations are 8:30 a.m.-4:30 p.m., Monday-Friday (except Federal 
Holidays).
    Instructions: All submissions received must include the Docket ID 
No. for this rulemaking. Comments received may be posted without change 
to https://www.regulations.gov/, including any personal information 
provided. For detailed instructions on sending comments and additional 
information on the rulemaking process, see the ``Public Participation'' 
heading of the SUPPLEMENTARY INFORMATION section of this document. Out 
of an abundance of caution for members of the public and our staff, the 
EPA Docket Center and Reading Room are open to the public by 
appointment only to reduce the risk of transmitting COVID-19. Our 
Docket Center staff also continues to provide remote customer service 
via email, phone, and webform. Hand deliveries and couriers may be 
received by scheduled appointment only. For further information on EPA 
Docket Center services and the current status, please visit us online 
at https://www.epa.gov/dockets.
    Submitting Confidential Business Information (CBI). Do not submit 
information containing CBI to the EPA through https://www.regulations.gov/. Clearly mark the part or all of the information 
that you claim to be CBI. For CBI information on any digital storage 
media that you mail to the EPA, mark the outside of the digital storage 
media as CBI and then identify electronically within the digital 
storage media the specific information that is claimed as CBI. In 
addition to one complete version of the comments that includes 
information claimed as CBI, you must submit a copy of the comments that 
does not contain the information claimed as CBI directly to the public 
docket through the procedures outlined in Instructions above. If you 
submit any digital storage media that does not contain CBI, mark the 
outside of the digital storage media clearly that it does not contain 
CBI. Information not marked as CBI will be included in the public 
docket and the EPA's electronic public docket without prior notice. 
Information marked as CBI will not be disclosed except in accordance 
with procedures set forth in 40 Code of Federal Regulations (CFR) part 
2. Our preferred method to receive CBI is for it to be transmitted to 
electronically using email attachments, File Transfer Protocol (FTP), 
or other online file sharing services (e.g., Dropbox, OneDrive, Google 
Drive). Electronic submissions must be transmitted directly to the 
OAQPS CBI Office using the email address, [email protected], and should 
include clear CBI markings as described above. If assistance is needed 
with submitting large electronic files that exceed the file size limit 
for email attachments, and if you do not have your own file sharing 
service, please email [email protected] to request a file transfer link. 
If sending CBI information through the postal service, please send it 
to the following address: OAQPS Document Control Officer (C404-02), 
OAQPS, U.S. Environmental Protection Agency, Research Triangle Park, 
North Carolina 27711, Attention Docket ID No. EPA-HQ-OAR-2021-0741. The 
mailed CBI material should be double wrapped and clearly marked. Any 
CBI markings should not show through the outer envelope.
    Virtual public hearing. The virtual hearing will be held on May 9, 
2022. The hearing will be held in three sessions: 9:00 a.m. to noon 
(Eastern

[[Page 21826]]

time), 1:00 p.m. to 3:00 p.m. (Eastern time), and 6:00 p.m. to 8:00 
p.m. (Eastern time). We invite the public to register to speak using 
https://www.epa.gov/ground-level-ozone-pollution/2008-ozone-national-ambient-air-quality-standards-naaqs-nonattainment or (919) 541-0641. 
The EPA will confirm your approximate speaking time by May 9, 2022 and 
we will post a list of registered speakers in approximate speaking 
order at: https://www.epa.gov/ground-level-ozone-pollution/2008-ozone-national-ambient-air-quality-standards-naaqs-nonattainment. If we reach 
a point in any session where all present, registered speakers have been 
called on and no one else wishes to provide testimony we will adjourn 
that session early. Refer to the SUPPLEMENTARY INFORMATION section for 
additional information.

FOR FURTHER INFORMATION CONTACT: For information about this proposed 
rule, contact Robert Lingard, U.S. EPA, Office of Air Quality Planning 
and Standards, Air Quality Policy Division, C539-01 Research Triangle 
Park, NC 27709; by telephone number: (919) 541-5272; email address: 
[email protected]; or Emily Millar, U.S. EPA, Office of Air 
Quality Planning and Standards, Air Quality Policy Division, C539-01 
Research Triangle Park, NC 27709; telephone number: (919) 541-2619; 
email address: [email protected].

SUPPLEMENTARY INFORMATION: Participation in virtual public hearing. 
Because of current Centers for Disease Control and Prevention 
recommendations, as well as state and local orders for social 
distancing to limit the spread of COVID-19, the EPA cannot hold in-
person public meetings at this time.
    The EPA will begin pre-registering speakers and attendees for the 
hearing upon publication of this document in the Federal Register. The 
EPA will accept registrations on an individual basis. To register to 
speak at the virtual hearing, individuals may use the online 
registration form available via the EPA's 2008 Ozone National Ambient 
Air Quality Standards (NAAQS) Nonattainment Actions web page for this 
hearing (https://www.epa.gov/ground-level-ozone-pollution/2008-ozone-national-ambient-air-quality-standards-naaqs-nonattainment) or contact 
Pam Long at 919-541-0641 or [email protected]. The last day to pre-
register to speak at the hearing will be May 9, 2022. On May 9, 2022, 
the EPA will post a general agenda for the hearing that will list pre-
registered speakers in approximate order at: https://www.epa.gov/ground-level-ozone-pollution/2008-ozone-national-ambient-air-quality-standards-naaqs-nonattainment.
    The EPA will make every effort to follow the schedule as closely as 
possible on the day of the hearing; however, please plan for the 
hearings to run either ahead of schedule or behind schedule.
    Each commenter will have 3 minutes to provide oral testimony. The 
EPA encourages commenters to provide the EPA with a copy of their oral 
testimony electronically (via email) by emailing it to Pam Long at 
[email protected]. The EPA also recommends submitting the text of your 
oral comments as written comments to the rulemaking docket.
    The EPA may ask clarifying questions during the oral presentations 
but will not respond to the presentations at that time. Written 
statements and supporting information submitted during the comment 
period will be considered with the same weight as oral comments and 
supporting information presented at the public hearing.
    Please note that any updates made to any aspect of the hearing is 
posted online at https://www.epa.gov/ground-level-ozone-pollution/2008-ozone-national-ambient-air-quality-standards-naaqs-nonattainment. While 
the EPA expects the hearing to go forward as set forth previously, 
please monitor our website or contact Pam Long at 919-541-0641 or 
[email protected] to determine if there are any updates. The EPA does 
not intend to publish a document in the Federal Register announcing 
updates.
    A Spanish interpreter will be provided. If you require the services 
of an interpreter for any language other than Spanish or special 
accommodations such as audio description, please pre-register for the 
hearing with Pam Long and describe your needs by May 4, 2022. The EPA 
may not be able to arrange accommodations without advanced notice.
    Throughout this document ``we,'' ``us,'' or ``our'' means the EPA.

Table of Contents

I. Overview and Basis of Proposal
    A. Overview of Proposal
    B. What is the background for the proposed actions?
    C. What is the statutory authority for the proposed actions?
    D. How does the EPA determine whether an area has attained the 
2008 ozone standard?
II. What is the EPA proposing and what is the rationale?
    A. Determinations of Attainment by the Attainment Date
    B. Extension of Serious Area Attainment Date
    C. Determinations of Failure To Attain and Reclassification
    D. Severe Area SIP Revisions
III. Environmental Justice Considerations
IV. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act (PRA)
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act (UMRA)
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer Advancement Act (NTTAA)
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Judicial Review

I. Overview and Basis of Proposal

A. Overview of Proposal

    The EPA is required to determine whether areas designated 
nonattainment for an ozone NAAQS attained the standard by the 
applicable attainment date, and to take certain steps for areas that 
failed to attain (see Clean Air Act (CAA) section 181(b)(2)). For a 
concentration-based standard, such as the 2008 ozone NAAQS,\1\ a 
determination of attainment is based on a nonattainment area's design 
value (DV).\2\
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    \1\ Because the 2008 primary and secondary NAAQS for ozone are 
identical, for convenience, the EPA refers to them in the singular 
as ``the NAAQS'' or ``the standard.''
    \2\ A DV is a statistic used to compare data collected at an 
ambient air quality monitoring site to the applicable NAAQS to 
determine compliance with the standard. The DV for the 2008 ozone 
NAAQS is the 3-year average of the annual fourth highest daily 
maximum 8-hour average ozone concentration. The DV is calculated for 
each air quality monitor in an area and the area's DV is the highest 
DV among the individual monitoring sites in the area.
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    The 2008 ozone NAAQS is met at an EPA regulatory monitoring site 
when the DV does not exceed 0.075 parts per million (ppm). For areas 
classified as Serious nonattainment for the 2008 ozone NAAQS, the 
attainment date was July 20, 2021. Because the DV is based on the three 
most recent, complete calendar years of data, attainment must occur no 
later than December 31 of the year prior to the attainment date (i.e., 
December 31, 2020, in the case of

[[Page 21827]]

Serious nonattainment areas for the 2008 ozone NAAQS). As such, the 
EPA's proposed determinations for each area are based upon the 
complete, quality-assured, and certified ozone monitoring data from 
calendar years 2018, 2019, and 2020.
    This proposed action addresses seven of the nine nonattainment 
areas that were classified as Serious for the 2008 ozone NAAQS as of 
the Serious area attainment date of July 20, 2021.3 4 The 
remaining two areas will be addressed in separate actions, as follows:
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    \3\ Prior to July 20, 2021, two additional Serious areas were 
reclassified from Serious to Severe, and thus are not addressed in 
this action. The San Diego County, California, nonattainment area 
was reclassified from Serious to Severe effective July 2, 2021, in 
response to a voluntary reclassification request submitted by the 
state of California (see 86 FR 29522, June 2, 2021). SIP revisions 
addressing Severe area requirements for San Diego County will be due 
no later than July 2, 2022. The Eastern Kern, California, 
nonattainment area was reclassified from Serious to Severe effective 
July 7, 2021, in response to a voluntary reclassification request 
submitted by the state of California (see 86 FR 30204, June 7, 
2021). In a separate action, the EPA finalized a rule establishing 
that SIP revisions addressing Severe area requirements for Eastern 
Kern would be due no later than 18 months from the effective date of 
reclassification (i.e., January 7, 2023) and that any new RACT rules 
for Eastern Kern must be implemented as expeditiously as practicable 
but no later than 18 months following the RACT SIP due date (i.e., 
July 7, 2024) (see 86 FR 47580, August 26, 2021). Both the San Diego 
County and Eastern Kern areas must attain the 2008 ozone standard by 
July 20, 2027.
    \4\ In separate rulemakings, the EPA is proposing to redesignate 
all portions of the Chicago-Naperville, IL-IN-WI Serious 
nonattainment area to attainment for the 2008 ozone NAAQS based upon 
complete, quality-assured, and certified ozone monitoring data from 
calendar years 2019, 2020, and 2021: Wisconsin portion (87 FR 6806, 
February 7, 2022); Indiana portion (87 FR 12033, March 3, 2022); 
and, Illinois portion (87 FR 13668, March 10, 2022). If all portions 
of the area are redesignated prior to EPA finalizing this proposal, 
EPA would not finalize its proposed action for this area.
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    (1) The Nevada County (Western Part), California, Serious 
nonattainment area is not included in this proposed action. On 
September 17, 2021, the California Air Resources Board (CARB) submitted 
exceptional events (EE) demonstrations for 11 days in 2018 with 
exceedances of the standard, and on November 18, 2021, CARB submitted 
EE demonstrations for five days in 2020 with exceedances of the 
standard. The EPA's action on these demonstrations may affect a 
determination of attainment by the attainment date for this area.\5\ 
The EE initial notification, EE demonstrations, and the EPA's response 
to the initial notification are provided in the docket for this 
rulemaking (Docket ID EPA-HQ-OAR-2021-0741). The proposed action to 
determine attainment for the Nevada County (Western Part), California, 
area by the Serious attainment date for the 2008 ozone NAAQS will be 
addressed in a separate Federal Register document.
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    \5\ CAA section 319(b) defines an exceptional event as an event 
that (i) affects air quality; (ii) is not reasonably controllable or 
preventable; (iii) is an event caused by human activity that is 
unlikely to recur at a particular location or a natural event; and 
(iv) is determined by the Administrator through the process 
established in regulation to be an EE. CARB submitted its initial 
notification and demonstrations pursuant to 40 CFR 50.14, which 
establishes the process by which states may request that the 
Administrator determine that air quality monitoring data showing 
exceedances or violations of the NAAQS that are directly due to an 
EE may be excluded from certain regulatory determinations, including 
whether a nonattainment area has met the NAAQS by its deadline.
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    (2) The Ventura, California, Serious nonattainment area is also not 
included in this proposed action. On December 8, 2021, CARB submitted 
EE demonstrations for five days in 2020 with exceedances of the 
standard . The EPA's action on these demonstrations may affect a 
determination of attainment by the attainment date for this area. The 
EE initial notification, EE demonstrations and the EPA's response to 
the initial notification are provided in the docket for this 
rulemaking. The proposed action to determine attainment for the Ventura 
County, California, area by the Serious attainment date for the 2008 
ozone NAAQS will be addressed in a separate Federal Register document.
    Table 1 of this action provides a summary of the ozone air quality 
DVs and the EPA's proposed air quality-based determinations for the 
seven Serious areas addressed in this action.

                     Table 1--2008 Ozone NAAQS Serious Nonattainment Area Evaluation Summary
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                                                                                           Area failed to attain
                                                                                            2008 NAAQS but state
                                                                              2020 4th        requested 1-year
                                     2018-2020 DV    2008 NAAQS attained    Highest daily     attainment date
   2008 NAAQS nonattainment area         (ppm)       by the serious area    maximum 8-hr     extension based on
                                                       attainment date     average  (ppm)    2020 4th  highest
                                                                                             daily maximum 8-hr
                                                                                            average <=0.075 ppm
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Chicago-Naperville, IL-IN-WI *....           0.077  Failed to Attain.....           0.079  No.
Dallas-Fort Worth, TX **..........           0.076  Failed to Attain.....           0.077  No.
Denver-Boulder-Greeley-Ft. Collins-          0.081  Failed to Attain.....           0.087  No.
 Loveland, CO.
Greater Connecticut, CT...........           0.073  Attained.............           0.071  N/A.
Houston-Galveston-Brazoria, TX....           0.079  Failed to Attain.....           0.075  Yes.
Morongo Band of Mission Indians...           0.099  Failed to Attain.....           0.103  No.
New York-N. New Jersey-Long                  0.082  Failed to Attain.....           0.080  No.
 Island, CT-NJ-NY.
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* In a letter to the Illinois Environmental Protection Agency dated July 30, 2021, EPA Region 5 indicated that
  it did not concur on EE demonstrations for the Chicago-Naperville area submitted to the EPA on February 1,
  2021; a copy of this letter and the supporting EPA technical review is provided in the docket for this
  rulemaking.
** In a letter to the Texas Commission on Environmental Quality dated June 30, 2021, EPA Region 6 indicated that
  it did not concur on EE demonstrations for the Dallas-Fort Worth area submitted to the EPA on May 28, 2021; a
  copy of this letter and the supporting EPA technical review is provided in the docket for this rulemaking.

    The data used to calculate both the 2018-2020 DVs and the 2020 
fourth highest daily maximum 8-hour averages are provided in the 
technical support document (TSD) provided in the docket for this 
rulemaking.\6\
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    \6\ ``Technical Support Document Regarding Ozone Monitoring 
Data--Determinations of Attainment, 1-Year Attainment Date 
Extensions, and Reclassifications for Serious Areas under the 2008 
8-Hour Ozone National Ambient Air Quality Standards (NAAQS),'' 
available in the docket for this rulemaking.
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    The EPA proposes to find that the Greater Connecticut, Connecticut, 
Serious nonattainment area attained by the attainment date based on the 
2018-2020 DV presented in Table 1 of this action, which does not exceed 
0.075 ppm. The EPA also proposes to deny a request for a 1-year 
attainment date

[[Page 21828]]

extension for the Houston-Galveston-Brazoria, Texas, nonattainment area 
(herein referred to as the Houston area) taking into account applicable 
statutory and regulatory criteria,\7\ current air quality trends, and 
potential environmental justice (EJ) concerns within the area (Section 
II.B of this action). Finally, the EPA proposes to determine that the 
five remaining Serious areas with a 2018-2020 DV greater than 0.075 ppm 
did not attain by the attainment date and do not qualify for a 1-year 
attainment date extension. If the EPA determines that a nonattainment 
area classified as Serious failed to attain by the attainment date, CAA 
section 181(b)(2)(B) requires the EPA to publish the identity of each 
such area in the Federal Register no later than 6 months following the 
attainment date and identify the reclassification level.
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    \7\ See CAA section 181(a)(5) and 40 CFR 51.1107.
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    Furthermore, as required under CAA section 181(b)(2)(A), if the EPA 
finalizes the determinations that these areas failed to attain by the 
attainment date, they will be reclassified as Severe by operation of 
law. Also, these determinations will trigger contingency measures 
approved into the area's SIP. Section 172(c)(9) of the CAA requires 
that these measures must take effect without any further action by the 
state or the EPA. Accordingly, implementation of the contingency 
measures must commence upon the effective date of the EPA's 
determination that an area failed to timely attain (see 80 FR 12264, 
12285, March 6, 2015). The reclassified areas will then be subject to 
the Severe area requirement to attain the 2008 ozone NAAQS as 
expeditiously as practicable, but not later than July 20, 2027.
    Once reclassified as Severe, the relevant states must submit to the 
EPA the SIP revisions for these areas that satisfy the statutory and 
regulatory requirements applicable to Severe areas established in CAA 
section 182(d) and in the 2008 Ozone NAAQS SIP Requirements Rule (see 
80 FR 12264, March 6, 2015).\8\ Because the deadlines specified in 
section 182(d) have passed for plan submissions applicable to areas 
initially classified as Severe for the 2008 ozone NAAQS, the EPA is 
exercising the discretion granted under CAA section 182(i) to propose 
adjusting the deadlines for submitting SIP revisions that would 
otherwise apply under CAA section 182(d). As discussed in Section II.D 
of this action, the EPA proposes an overall 36-month schedule for both 
submission of SIP revisions addressing all required elements of a 
Severe area plan and implementation of any related emissions controls, 
including reasonably available control technology (RACT) and 
transportation-related measures. Under the CAA and the Tribal Authority 
Rule (TAR),\9\ tribes may, but are not required to, submit 
implementation plans to the EPA for approval. Accordingly, for the 
Morongo Band of Mission Indians nonattainment area, the Morongo Tribe 
would not be required to submit any tribal implementation plan (TIP) 
revisions applicable to Severe areas established in CAA section 182(d) 
and in the 2008 Ozone SIP Requirements Rule.
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    \8\ In South Coast Air Quality Mgmt. Dist. v. EPA, 882 F.3d 1138 
(D.C. Cir. 2018), the D.C. Circuit granted in part and denied in 
part petitions for review challenging the 2008 Ozone NAAQS SIP 
Requirements Rule. Among other things, the D.C. Circuit vacated the 
portion of the rule that allowed states to select an alternative 
baseline year (i.e., a year other than 2011) for purposes of 
calculating reasonable further progress. See id. at 882 F.3d at 
1152-53. The South Coast Air Quality Management District petitioned 
the Court for rehearing on this issue and the Court denied that 
petition. South Coast, No. 15-1123, Order No. 1750751 (D.C. Cir. 
September 14, 2018).
    \9\ See CAA section 301(d) and 40 CFR part 49.
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B. What is the background for the proposed actions?

    On March 12, 2008, the EPA issued its final action to revise the 
NAAQS for ozone to establish new 8-hour standards (see 73 FR 16436, 
March 27, 2008). In that action, the EPA promulgated identical revised 
primary and secondary ozone standards designed to protect public health 
and welfare that specified an 8-hour ozone level of 0.075 ppm. 
Specifically, the standards require that the 3-year average of the 
annual fourth highest daily maximum 8-hour average ozone concentration 
may not exceed 0.075 ppm.
    Effective on July 20, 2012, the EPA designated 46 areas throughout 
the country as nonattainment for the 2008 ozone NAAQS (see 77 FR 30088, 
May 21, 2012; and 77 FR 34221, June 11, 2012). In a separate action, 
the EPA assigned classification thresholds and attainment dates based 
on the severity of each nonattainment area's ozone problem, determined 
by the area's DV (see 77 FR 30160, May 21, 2012).\10\ The attainment 
dates for Serious and Severe nonattainment areas are 9 years and 15 
years, respectively, from the effective date of the final designation, 
July 20, 2012.\11\ Thus, the attainment date for Serious nonattainment 
areas for the 2008 ozone NAAQS was July 20, 2021, and the attainment 
date for Severe areas is July 20, 2027. In a separate action effective 
on September 23, 2019, the EPA reclassified seven of the 11 Moderate 
areas to Serious for failing to attain the NAAQS by the July 20, 2018, 
Moderate area attainment date (see 84 FR 44238, August 23, 2019). In 
that action, two Moderate areas received 1-year attainment date 
extensions. These two areas were later redesignated to attainment 
(Inland Sheboygan County, Wisconsin--85 FR 41400, July 10, 2020, and 
Shoreline Sheboygan County, Wisconsin--85 FR 41405, July 10, 2020).
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    \10\ Initial classifications for the 46 areas designated 
nonattainment for the 2008 ozone NAAQS included 36 Marginal, three 
Moderate, two Serious, three Severe, and two Extreme areas.
    \11\ See 40 CFR 51.1103(a) and 80 FR 12264, 12267 (March 6, 
2015).
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C. What is the statutory authority for the proposed actions?

    The statutory authority for the actions proposed in this document 
is provided by the CAA, as amended (42 U.S.C. 7401 et seq.). Relevant 
portions of the CAA include, but are not necessarily limited to, 
sections 181(a)(5), 181(b)(2) and 182(i).
    CAA section 107(d) provides that when the EPA establishes or 
revises a NAAQS, the Agency must designate areas of the country as 
nonattainment, attainment, or unclassifiable based on whether an area 
is not meeting (or is contributing to air quality in a nearby area that 
is not meeting) the NAAQS, meeting the NAAQS, or cannot be classified 
as meeting or not meeting the NAAQS, respectively. Subpart 2 of part D 
of title I of the CAA governs the classification, state planning, and 
emissions control requirements for any areas designated as 
nonattainment for a revised primary ozone NAAQS. In particular, CAA 
section 181(a)(1) requires each area designated as nonattainment for a 
revised ozone NAAQS to be classified at the same time as the area is 
designated based on the extent of the ozone problem in the area (as 
determined based on the area's DV). Classifications for ozone 
nonattainment areas range from ``Marginal'' to ``Extreme.'' CAA section 
182 provides the specific attainment planning and additional 
requirements that apply to each ozone nonattainment area based on its 
classification. CAA section 182, as interpreted by the EPA's 
implementing regulations at 40 CFR 51.1108 through 51.1117, also 
establishes the timeframes by which air agencies must submit and 
implement SIP revisions to satisfy the applicable attainment planning 
elements, and the timeframes by which nonattainment areas must attain 
the 2008 ozone NAAQS. For reclassified areas, CAA section 182(i) 
provides that the Administrator may adjust applicable deadlines other 
than attainment dates if

[[Page 21829]]

such adjustment is necessary or appropriate to assure consistency among 
the required submissions. Therefore, the EPA proposes in Section II.D 
of this action to adjust the deadlines for SIP revisions for any newly 
reclassified Severe nonattainment areas.
    Section 181(b)(2)(A) of the CAA requires that within 6 months 
following the applicable attainment date, the EPA shall determine 
whether an ozone nonattainment area attained the ozone standard based 
on the area's DV as of that date. Upon application by any state, the 
EPA may grant a 1-year extension of the attainment date for qualifying 
areas upon application by any state (Section II.B of this action). In 
the event an area fails to attain the ozone NAAQS by the applicable 
attainment date and is not granted a 1-year attainment date extension, 
CAA section 181(b)(2)(A) requires the EPA to make the determination 
that the ozone nonattainment area failed to attain the ozone standard 
by the applicable attainment date, and reclassifies the area by 
operation of law to the higher of: (1) The next higher classification 
for the area, or (2) the classification applicable to the area's DV as 
of the determination of failure to attain.\12\ Section 181(b)(2)(B) of 
the CAA requires the EPA to publish the determination of failure to 
attain and accompanying reclassification in the Federal Register no 
later than 6 months after the attainment date, which in the case of the 
Serious nonattainment areas considered in this proposal was January 20, 
2022.
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    \12\ All nonattainment areas named in this action that failed to 
attain by the attainment date would be classified to the next higher 
classification, Severe. None of the affected areas has a DV that 
would otherwise place an area in a higher classification (also, see 
CAA section 181(b)(2)(A) exception for Extreme areas).
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    Once an area is reclassified, each state that contains a 
reclassified area is required to submit certain SIP revisions in 
accordance with its more stringent classification. The SIP revisions 
are intended to, among other things, demonstrate how the area will 
attain the NAAQS as expeditiously as practicable, but no later than the 
Severe area attainment date of July 20, 2027. Per CAA section 182(i), 
each state containing an ozone nonattainment area reclassified as 
Severe under CAA section 181(b)(2) shall submit SIP revisions 
consistent with the schedules contained in CAA section 182(b) for 
Moderate areas, 182(c) for Serious areas and 182(d) for Severe areas, 
but the EPA ``may adjust applicable deadlines (other than attainment 
dates) to the extent such adjustment is necessary or appropriate to 
assure consistency among the required submissions.'' In Section II.D of 
this action, the EPA explains its proposal to adjust such deadlines.

D. How does the EPA determine whether an area has attained the 2008 
ozone standard?

    Under the EPA regulations at 40 CFR part 50, appendix P, the 2008 
ozone NAAQS is attained at a site when the 3-year average of the annual 
fourth highest daily maximum 8-hour average ambient air quality ozone 
concentration (i.e., DV) does not exceed 0.075 ppm. When the DV does 
not exceed 0.075 ppm at each ambient air quality monitoring site within 
the area, the area is deemed to be attaining the ozone NAAQS. The 
rounding convention in Appendix P dictates that concentrations shall be 
reported in parts per million to the third decimal place, with 
additional digits to the right being truncated. Thus, a computed 3-year 
average ozone concentration of 0.076 ppm is greater than 0.075 ppm and 
would exceed the standard, but a DV of 0.0759 is truncated to 0.075 and 
attains the 2008 ozone NAAQS.
    The EPA's determination of attainment is based upon data that have 
been collected and quality-assured in accordance with 40 CFR part 58 
and recorded in the EPA's Air Quality System (AQS).\13\ Ambient air 
quality monitoring data for the 3-year period preceding the year of the 
attainment date (2018-2020 for the 2008 ozone NAAQS Serious areas) must 
meet the data completeness requirements in Appendix P.\14\ The 
completeness requirements are met for the 3-year period at a monitoring 
site if daily maximum 8-hour average concentrations of ozone are 
available for at least 90 percent of the days within the ozone 
monitoring season, on average, for the 3-year period, and no single 
year has less than 75 percent data completeness.
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    \13\ The EPA maintains the AQS, a database that contains ambient 
air pollution data collected by the EPA, state, local, and tribal 
air pollution control agencies. The AQS also contains meteorological 
data, descriptive information about each monitoring station 
(including its geographic location and its operator) and data 
quality assurance/quality control information. The AQS data is used 
to (1) assess air quality, (2) assist in attainment/non-attainment 
designations, (3) evaluate SIPs for nonattainment areas, (4) perform 
modeling for permit review analysis, and (5) prepare reports for 
Congress as mandated by the CAA. Access is through the website at 
https://www.epa.gov/aqs.
    \14\ See 40 CFR part 50, appendix P, section 2.3(b).
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II. What is the EPA proposing and what is the rationale?

    The EPA proposes this action to fulfill its statutory obligation 
under CAA section 181(b)(2) to determine whether seven Serious ozone 
nonattainment areas attained the 2008 ozone NAAQS as of the attainment 
date of July 20, 2021. The EPA evaluated air quality monitoring data 
submitted by the appropriate state and local air agencies to determine 
the attainment status of the seven areas as of the applicable 
attainment date of July 20, 2021. This section describes the separate 
determinations and actions being proposed in this document.

A. Determinations of Attainment by the Attainment Date

    The EPA proposes to determine, in accordance with CAA section 
181(b)(2)(A) and the provisions of the 2008 Ozone NAAQS SIP 
Requirements Rule (40 CFR 51.1103), that the Greater Connecticut, CT, 
area attained the 2008 ozone NAAQS by the Serious area attainment date 
of July 20, 2021, based on its 2018-2020 DV (Table 1 of this action).
    The EPA's Clean Data Policy,\15\ as codified for the 2008 ozone 
NAAQS at 40 CFR 51.1118, suspends the requirements for states to submit 
certain attainment planning SIPs such as the attainment demonstration, 
including reasonably available control measures (RACM), reasonable 
further progress (RFP), and contingency measures for so long as an area 
continues to attain the standard. The EPA determined previously that 
the Greater Connecticut, CT, area was attaining the 2008 ozone standard 
and, therefore, suspended the requirements for the state to submit an 
attainment demonstration and associated RACM, RFP plans, contingency 
measures, and other attainment planning elements, in accordance with 40 
CFR 51.1118.\16\ Per that Clean Data Determination, these requirements 
will remain suspended until the area is redesignated to attainment for 
the 2008 ozone NAAQS (at which time the submission requirements would 
no longer apply), or the EPA determines that the area has violated the 
2008 ozone standard, at which time the Clean Data Determination would 
be rescinded and the state would again be required to submit such 
Serious area elements for the Greater Connecticut, CT, nonattainment 
area.
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    \15\ More information about the Clean Data Policy and 
redesignation guidance is available at https://www.epa.gov/ozone-pollution/redesignation-and-clean-data-policy-cdp.
    \16\ For the Greater Connecticut, CT, area, the final 2008 ozone 
NAAQS Clean Data Determination was effective on August 12, 2020 (85 
FR 41924, July 13, 2020).
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    This proposed determination of attainment by the attainment date 
does

[[Page 21830]]

not constitute formal redesignation to attainment as provided for under 
CAA section 107(d)(3). Redesignations to attainment require the states 
responsible for ensuring attainment and maintenance of the NAAQS to 
meet the requirements under CAA section 110 and part D, including 
submitting for EPA approval a maintenance plan to ensure continued 
attainment of the standard for 10 years following redesignation, as 
provided under CAA section 175A.
    The EPA requests comment on this proposed determination of 
attainment by the attainment date for the Greater Connecticut, CT, 
area. Further technical analysis supporting this proposed determination 
is in the TSD for this action, which is provided in the docket for this 
rulemaking.

B. Extension of Serious Area Attainment Date

1. Summary of Proposed Action for the Houston area
    By way of letter dated April 5, 2021, the Texas Commission on 
Environmental Quality (TCEQ) requested an extension of the Houston area 
Serious area attainment date, which is provided in the docket for this 
rulemaking.\17\ In this action, the EPA is proposing to deny TCEQ's 
request, but is also soliciting comment on whether it would be 
appropriate to grant the state's request.
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    \17\ Baer, Tonya, Director, Office of Air, TCEQ. ``Request for a 
One-Year Extension of the Houston-Galveston-Brazoria (HGB) 2008 
Eight-Hour Ozone Standard Attainment Date.'' April 5, 2021.
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    By proposing to deny the requested 1-year attainment date extension 
for the Houston area and determining that the area failed to attain by 
the Serious area attainment date, this action, if finalized, would 
result in the area being reclassified as Severe. As described below, 
CAA section 181(a)(5) makes clear that the Administrator may exercise 
reasoned discretion to deny a request for a 1-year extension even where 
the statutory criteria for an extension are met. Here, even though the 
state meets the two statutory criteria for an extension, we propose to 
find that other considerations weigh in favor of not granting the 
state's request for an extension. First, as discussed in Section 
II.B.2.b of this action, preliminary data indicate that the area will 
not attain by an extended attainment date of July 20, 2022, nor is the 
area likely to qualify for a second extension. The EPA is concerned 
that extending the July 20, 2021, attainment date by an additional 
year, when preliminary data indicate the area will not reach attainment 
with that extension, would delay attainment planning requirements 
(including emissions control requirements) that are necessary for the 
area to expeditiously attain the NAAQS. Second, as discussed in Section 
II.B.2.b of this action, screening level analyses of portions of the 
Houston area indicate that individuals residing and working near the 
Houston Ship Channel and violating regulatory ozone monitoring sites 
may already be exposed to a significant pollution burden. Delays in 
implementing the more stringent requirements associated with 
reclassification would delay related air quality improvements and human 
health benefits for residents across the Houston area, including those 
that may already bear a disproportionate burden of pollution. Under 
these circumstances, we propose that it is a reasonable exercise of the 
Administrator's discretion under CAA section 181(a)(5) to deny the 
state's request.
2. Proposal To Deny the Requested 1-Year Attainment Date Extension and 
Determine the Houston Area Failed To Timely Attain
a. Summary and Legal Background
    Section 181(a)(5) of the CAA provides the EPA the discretion to 
(i.e., ``the Administrator may'') extend an area's applicable 
attainment date by 1 additional year upon application by any state if 
the state meets the two criteria under CAA section 181(a)(5) as 
interpreted by the EPA in 40 CFR 51.1107.
    With respect to the first criterion, the EPA interprets the 
provision as having been satisfied if a state can certify that it is in 
compliance with its approved implementation plan. See Delaware Dept. of 
Nat. Resources and Envtl. Control v. EPA, 895 F.3d 90, 101 (D.C. Cir. 
2018) (holding that the CAA requires only that an applying state with 
jurisdiction over a nonattainment area comply with the requirements in 
its applicable SIP, not every requirement of the Act); see also Vigil 
v. Leavitt, 381 F.3d 826, 846 (9th Cir. 2004). A state may meet this 
requirement by certifying its compliance, and in the absence of such 
certification, the EPA may make a determination as to whether the 
criterion has been met. See Delaware, 895 F.3d at 101-102. TCEQ 
certified that it is complying with its applicable SIP in its 
attainment date extension request, which is provided in the docket for 
this rulemaking.
    With respect to the second criterion, the EPA has interpreted CAA 
section 181(a)(5)(B)'s exceedance-based air quality requirement for 
purposes of a concentration-based standard like the 2008 8-hour ozone 
NAAQS (see 40 CFR 51.1107). For the 2008 ozone NAAQS, the EPA has 
interpreted the air-quality criterion of CAA section 181(a)(5)(B) to 
mean that, for the first attainment date extension, an area's fourth 
highest daily maximum 8-hour value for the attainment year must not 
exceed the level of the standard (0.075 ppm).\18\ The Houston area's 
fourth highest daily maximum 8-hour value for 2020 was 0.075 ppm.
---------------------------------------------------------------------------

    \18\ See 40 CFR 51.1107 pertaining to determining eligibility 
under CAA section 181(a)(5)(B) for the first and the second 1-year 
attainment date extensions for the 2008 ozone NAAQS.
---------------------------------------------------------------------------

    However, CAA section 181(a)(5) gives the EPA the discretion to 
either grant or deny a state's requested 1-year attainment date 
extension even where an area meets both of the statutory criteria. 
Specifically, that provision states, ``Upon application by any State, 
the Administrator may extend for 1 additional year . . . [the 
attainment date] if'' the two criteria are met. CAA section 181(a)(5) 
(emphasis added). Under this provision, the two enumerated criteria are 
necessary conditions, but, by granting discretion, the statute 
contemplates that in certain circumstances, it may still be reasonable 
to deny a state's request even if both conditions are met. The D.C. 
Circuit recently upheld the EPA's interpretation of a similarly 
constructed CAA provision, finding that ``[t]he statute requires this 
showing to be made, but once it has been made, the statute provides 
only that EPA `may' expand the region, not that it `shall' or `must' do 
so . . . . In other words, this requirement is a necessary but not 
sufficient condition for expansion of the region.'' New York v. EPA, 
921 F.3d 257, 298 (D.C. Cir. 2019) (internal citations omitted).
    With respect to CAA section 181(a)(5), the D.C. Circuit has 
acknowledged that the provision grants the EPA discretion to look 
beyond the enumerated factors. Delaware, 895 F.3d 90, 100 (D.C. Cir. 
2018) (noting that despite its holding that the EPA was not required to 
determine every state in a multi-state nonattainment area's compliance 
with its SIP under section 181(a)(5)(A), ``EPA nevertheless retained 
discretion to consider Delaware's compliance, given that the Act only 
dictates that EPA `may' grant an extension when the statute's 
requirements are met'') (emphasis added). The court added that the 
EPA's exercise of discretion under this provision is subject to 
arbitrary-and-capricious review, such that the Agency ``must cogently 
explain why it has

[[Page 21831]]

exercised its discretion in a given manner.'' Id. (emphasis in 
original) (citing Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State 
Farm Auto. Ins. Co., 463 U.S. 29, 48 (1983)). The statute does not 
compel the Agency to grant an extension when the two criteria are met, 
and it is reasonable to exercise our discretionary authority in light 
of the Act's goals.
    CAA section 181(a)(5), which establishes the extension process for 
ozone nonattainment areas, mirrors the extension process established in 
the general nonattainment area provisions at CAA section 172(a)(2)(C), 
and is appropriately read in light of the Act's focus on the 
expeditious attainment of the NAAQS--both in subpart 2 specifically 
\19\ and in Part D more generally. The ultimate goal of Part D of the 
CAA, which governs planning requirements for nonattainment areas, and 
the responsibility of states and the EPA under that section of the Act, 
is to drive progress in nonattainment areas towards attainment as 
expeditiously as practicable but by no later than the maximum 
attainment dates prescribed by the Act.\20\ We think the EPA's 
discretion under the extension provision should also be exercised 
consistent with the broader purposes of the Act ``to protect and 
enhance the quality of the Nation's air resources so as to promote the 
public health and welfare and the productive capacity of its 
population'' \21\ and Congress's ``primary goal'' in enacting the Clean 
Air Act to encourage and promote actions ``for pollution prevention.'' 
\22\ The EPA therefore proposes to evaluate TCEQ's request mindful of 
the intent of the CAA's Part D nonattainment planning requirements to 
promote expeditious attainment to protect public health, as well as the 
Act's broader purposes.
---------------------------------------------------------------------------

    \19\ CAA section 181(a)(1).
    \20\ See, e.g., CAA section 171(1) (defining reasonable further 
progress as annual incremental reductions in emissions of the 
relevant air pollutant . . . for the purpose of ensuring attainment 
of the applicable [NAAQS] by the applicable date''); CAA section 
172(a)(2)(A) (establishing attainment dates for the primary NAAQS as 
``the date by which attainment can be achieved as expeditiously as 
practicable, but no later than 5 years from the date such area was 
designated nonattainment under [107(d)] of this title . . . ''); CAA 
section 172(c)(1) (requiring implementation of all reasonably 
available control measures as expeditiously as practicable and that 
plans provide for attainment of the NAAQS); CAA section 172(c)(6) 
(requiring state plans to include enforceable emission limitations, 
and such other control measures, means or techniques, as well as 
schedules and timetables for compliance, as may be necessary or 
appropriate to provide for attainment of the NAAQS by the applicable 
attainment date).
    \21\ CAA section 101(b)(1).
    \22\ CAA section 101(c).
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    In proposing this approach, we recognize that the CAA, and in 
particular those provisions of the Act related to implementation of 
requirements that are designed to achieve criteria pollutant standards 
(i.e., attain the NAAQS), embodies principles of cooperative 
federalism. After the EPA sets the NAAQS to be protective of human 
health and the environment, the states, subject to the general 
nonattainment planning requirements of part D, subpart 1 and the 
pollutant-specific planning requirements of the additional subparts (in 
this case, part D, subpart 2), are generally permitted flexibility in 
deciding how to achieve those standards. However, within this context, 
we think the discretion provided by CAA section 181(a)(5) permits the 
EPA to weigh a state's prerogative to plan for attainment with other 
important considerations such as ensuring expeditious attainment of the 
NAAQS or mitigating particular impacts an action might have. CAA 
section 181(a)(5) is intended to provide flexibility where an area is 
close to achieving attainment and can likely do so with a bit more 
time, but we do not think it is appropriate to employ that process in a 
way that frustrates the goal of expeditious attainment, particularly 
where additional burden from delaying expeditious attainment would fall 
on already overburdened populations, as will be discussed later in this 
section. It is fully consistent with EPA's role in overseeing the state 
planning process to exercise its discretion to ensure that extensions 
under CAA section 181(a)(5) advance, rather than frustrate, the Act's 
ultimate goal of expeditious attainment to protect public health.
    In this case, we do not think an attainment date extension would 
serve the purposes of the NAAQS extension provision, Part D's focus on 
timely attainment, or the Act's broader emphasis on public health 
protection. As discussed further in section II.B.2.b, Houston does not 
need only a little additional time to come into attainment of the 2008 
ozone NAAQS; even with an extension, preliminary air quality data for 
2021 indicate that the area will not attain. Granting an extension 
under these circumstances would amount only to delaying today's 
determination and reclassification, and ultimately could delay 
expeditious attainment of the NAAQS. As discussed further in section 
II.B.2.c., we also think it is reasonable for the EPA to consider 
whether those who will bear the additional burden caused by the 
extension are already overburdened by pollution, and we provide 
screening analyses indicating populations in the Houston area may be 
exposed to higher levels of ozone pollution and other burdens of 
pollution, relative to other Americans. We therefore propose to deny 
TCEQ's request for an extension, after considering that it is not 
prudent in this case to delay controls that are designed to achieve 
expeditious attainment of the NAAQS, and that delay would impact 
populations that may already bear a disproportionately high pollution 
burden, relative to the rest of the United States.
b. Air Quality Trends
    The NAAQS are set at levels necessary to protect public health with 
an adequate margin of safety and to protect public welfare, and 
expeditious attainment of the standards would result in public health 
benefits across the Houston area. As shown in Table 1 of this action, 
the Houston nonattainment area did not attain the 2008 ozone NAAQS by 
the Serious area attainment date of July 20, 2021, based on its final 
2018-2020 DV of 0.079 ppm. Moreover, while the Houston area meets the 
specific air quality criterion for an initial 1-year extension under 40 
CFR 51.1107(a)(1), the area met that criterion with no room to spare--
its attainment year fourth highest daily maximum 8-hour average 
concentration was 0.075 ppm (Table 1 of this action), i.e., right at 
the level of the 2008 ozone NAAQS. Preliminary 2021 ozone monitoring 
data indicate the area likely will not attain the 2008 ozone NAAQS by 
July 20, 2022, nor qualify for a second 1-year extension. As of 
December 31, 2021, the Houston area's preliminary 2019-2021 DV was 
0.077 ppm and the preliminary 2021 fourth highest daily maximum 8-hour 
value was 0.083 ppm.\23\ With respect to a second 1-year extension, in 
order to qualify, an area's fourth highest daily maximum 8-hour value, 
averaged over both the original attainment year and the first extension 
year, must be 0.075 ppm or less (40 CFR 51.1107(a)(2)). Based on 2021 
preliminary data, the average of the two extension years for Houston 
would be 0.079 ppm.\24\
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    \23\ Current TCEQ data report is available at https://www.tceq.texas.gov/cgi-bin/compliance/monops/8hr_attainment.pl.
    \24\ 0.083 ppm [2021 preliminary fourth high] + 0.075 ppm [2020 
fourth high] = 0.158/2 = 0.079 ppm.
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    In addition, even if Houston were able to qualify for a second 
extension to July 20, 2023, historical air quality trends suggest it 
could be difficult for the area to attain the 2008 ozone standard by 
that date. As shown in Table 2,

[[Page 21832]]

historical DVs for the area (2014-2020) have fluctuated between 0.078 
and 0.081 ppm without a consistent downward trend during this time 
period,\25\ and the area would need a DV of 0.075 ppm to attain.
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    \25\ Also at https://www.epa.gov/air-trends/air-quality-design-values.

                                                Table 2--Houston Nonattainment Area Historical Ozone DVs
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               Values (ppm) for DV Period
---------------------------------------------------------------------------------------------------------------------------------------------------------
      2012-2014             2013-2015             2014-2016             2015-2017             2016-2018             2017-2019             2018-2020
--------------------------------------------------------------------------------------------------------------------------------------------------------
            0.080                 0.080                 0.079                 0.081                 0.078                 0.081                 0.079
--------------------------------------------------------------------------------------------------------------------------------------------------------

    We note that in addition to the state's obligation to attain the 
2008 ozone NAAQS, Houston is also well out of attainment of the 2015 
ozone NAAQS, which is set at 0.070 ppm. CAA emissions reduction 
measures associated with reclassification that are designed to help 
Houston achieve attainment of the less stringent 2008 ozone NAAQS would 
also aid the area in attaining the newer, more stringent 2015 ozone 
standard. The EPA is proposing in a separate action to find that the 
Houston area failed to attain the 2015 ozone NAAQS by its Marginal area 
attainment date of August 3, 2021; if finalized, the area would be 
reclassified as Moderate for the 2015 ozone NAAQS and subject to a new 
attainment date of August 3, 2024, for that NAAQS. We are concerned 
that granting the state's request for an attainment date extension for 
the 2008 ozone NAAQS, when the area's 2020 fourth high daily maximum 
average concentration just barely met the regulatory criterion and the 
preliminary 2021 fourth high daily maximum average concentration is 
above the regulatory criterion, would not facilitate the area's 
expeditious attainment of that standard. As noted, the purpose of the 
Act's extension provisions is to provide limited flexibility in the 
attainment date for areas that are close to attaining the NAAQS and 
likely could do so with a bit more time. We do not think that purpose 
is served by extending the attainment date where the preliminary data 
indicate that an extension that would simply delay a determination that 
the area failed to timely attain the 2008 ozone NAAQS, which would in 
turn delay the implementation of Severe area permitting and control 
requirements that may be necessary for the area's attainment.
c. Environmental Justice
    Where the statute has provided the Administrator a discretionary 
authority in the attainment date extension provisions, we think it is 
reasonable to consider the existing environmental burden in the area in 
question, and what impact our action may have on that burden. Granting 
the state's request would by definition prolong the ozone air quality 
problem; it would extend the deadline by which the Houston area must 
achieve the applicable air quality standards that were set at a level 
to protect public health (and in fact have been further tightened 
since). Consideration of the existing pollution burden already borne by 
the population that will be impacted by our action is a relevant factor 
of reasoned decisionmaking. The EPA therefore performed screening 
analyses to better understand the pollution burdens borne by the 
population that will be affected by the requested extension in order to 
fully understand the potential public health ramifications of the 
extension. That analysis demonstrated that there are populations in the 
Houston area that are potentially already significantly overburded by 
pollution compared to the wider U.S. population, and who would be 
adversely affected by an extension of the attainment date.
    Our proposed action is also consistent with multiple executive 
orders addressing environmental justice as well as an April 7, 2021 
directive by the EPA Administrator.\26\ \27\ In that directive, the 
Administrator instructed all EPA offices to take immediate and 
affirmative steps to incorporate EJ considerations into their work, 
including assessing impacts to pollution-burdened, underserved, and 
Tribal communities in regulatory development processes and considering 
regulatory options to maximize benefits to these communities.\28\
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    \26\ Message from the EPA Administrator, Our Commitment to 
Environmental Justice (issued April 7, 2021) at https://www.epa.gov/sites/production/files/2021-04/documents/regan-messageoncommitmenttoenvironmentaljustice-april072021.pdf.
    \27\ See E.O. 13985 (``Executive Order on Advancing Racial 
Equity and Support for Underserved Communities Through the Federal 
Government,'' issued January 20, 2021, available at https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-advancing-racial-equity-and-support-for-underserved-communities-through-the-federal-government/ and 86 FR 7009 (January 
25, 2021)) and E.O. 12898 (``Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations,'' issued February 11, 1994, available at https://www.epa.gov/sites/production/files/2015-02/documents/exec_order_12898.pdf and 59 FR 7629 (February 16, 1994)).
    \28\ The EPA has defined environmental justice as ``the fair 
treatment and meaningful involvement of all people regardless of 
race, color, national origin, or income with respect to the 
development, implementation and enforcement of environmental laws, 
regulations and policies.'' See https://www.epa.gov/environmentaljustice/learn-about-environmental-justice.
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Screening Analyses
    To conduct the screening analyses, we used the EJSCREEN tool, an EJ 
mapping and screening tool that provides EPA with a nationally 
consistent dataset and approach for combining various environmental and 
demographic indicators, to undertake these analyses.\29\ The EJSCREEN 
tool presents these indicators at a Census block group (CBG) level.\30\ 
An individual CBG is a cluster of contiguous blocks within the same 
census tract and generally contains between 600 and 3,000 people. 
EJSCREEN is not a tool for performing in-depth risk analysis, but is 
instead a screening tool that provides an initial representation of 
indicators related to EJ and is subject to uncertainty in some 
underlying data (e.g., some environmental indicators are based on 
monitoring data which are not uniformly available; others are based on 
self-reported data).\31\ To help mitigate this uncertainty, we have 
summarized EJSCREEN data within larger ``buffer'' areas covering 
multiple block groups and representing the average resident within the 
buffer areas, as well as a summary report covering the 8-county Houston 
nonattainment area included in

[[Page 21833]]

the docket for this rulemaking. We present ozone DVs for 2018-2020 as 
an indicator of potential ozone pollution exposure,\32\ as well as 
additional EJSCREEN environmental indicators to help screen for 
locations where residents may experience a higher overall pollution 
burden than would be expected for a block group with the same total 
population. These additional indicators of overall pollution burden 
include estimates of ambient particulate matter (PM2.5) 
concentration, a score for traffic proximity and volume, percentage of 
pre-1960 housing units (lead paint indicator), and scores for proximity 
to Superfund sites, risk management plan (RMP) sites, and hazardous 
waste facilities.\33\ EJSCREEN also provides information on demographic 
indicators, including percent low-income, communities of color, 
linguistic isolation, and less than high school education.
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    \29\ EJ SCREEN tool is available at https://www.epa.gov/ejscreen/what-ejscreen.
    \30\ See https://www.census.gov/programs-surveys/geography/about/glossary.html.
    \31\ In addition, EJSCREEN relies on the five-year block group 
estimates from the U.S. Census American Community Survey. The 
advantage of using five-year over single-year estimates is increased 
statistical reliability of the data (i.e., lower sampling error), 
particularly for small geographic areas and population groups. For 
more information, see https://www.census.gov/content/dam/Census/library/publications/2020/acs/acs_general_handbook_2020.pdf.
    \32\ The ozone metric in EJSCREEN represents the summer seasonal 
average of daily maximum 8-hour concentrations (parts per billion, 
ppb) and was not used in our EJ analyses because it does not 
represent summertime peak ozone concentrations, which are instead 
represented here by the DV metric. Ozone DVs are the basis of 
attainment determinations in this proposed action, and in this case 
we consider it a more informative indicator of pollution burden 
relative to the overall Houston area and the U.S. as a whole.
    \33\ For additional information on environmental indicators and 
proximity scores in EJSCREEN, see ``EJSCREEN Environmental Justice 
Mapping and Screening Tool: EJSCREEN Technical Documentation,'' 
Chapter 3 and Appendix C (September 2019) at https://www.epa.gov/sites/default/files/2021-04/documents/ejscreen_technical_document.pdf.
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    We focused these analyses on portions of the Houston nonattainment 
area in close proximity to the Port of Houston's Ship Channel and its 
industrial sources and activities, and on portions of the Houston 
nonattainment area surrounding violating ozone regulatory air quality 
monitor sites. We examined the extent to which residents living in 
these areas are exposed to high ozone concentrations and may be exposed 
to other pollution sources, relative to the Houston area and the U.S. 
population as a whole.\34\
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    \34\ Ozone pollution is not generally directly emitted but is 
formed near the ground when precursor pollutants chemically react in 
sunlight; these ozone precursors include nitrogen oxides 
(NOX) and volatile organic compounds (VOCs) emitted by 
vehicles and industrial sources, and can include VOCs that are 
hazardous air pollutants (HAPs).
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Screening Analysis Results for Port of Houston Ship Channel
    We elected to center an analysis on the Port of Houston's Ship 
Channel because we are aware of the dense concentration of industrial 
and commercial facilities and infrastructure located along the 
Channel.\35\ Houston and the surrounding areas experience some of the 
highest economic and population growth rates in the U.S., and the Port 
of Houston region is ranked the highest in the U.S. for total 
waterborne cargo tonnage. Each year, more than 247 million tons of 
cargo move through the greater Port of Houston, carried by more than 
8,200 vessels and 215,000 barges. The Port of Houston includes the 
public terminals owned, managed, operated, and leased by the Port of 
Houston Authority and the 150-plus private industrial companies along 
the 52-mile-long Houston Ship Channel. Typical sources of air emissions 
from port-related operations include heavy-duty vehicles, cargo 
handling equipment, locomotives, harbor vessels, ocean-going vessels, 
and liquids loading and unloading operations.
---------------------------------------------------------------------------

    \35\ The American Society of Civil Engineers describes the 
Houston Ship Channel as stretching from the Gulf of Mexico through 
Galveston Bay and up the San Jacinto River, ending four miles east 
of downtown Houston, and supporting the second largest petrochemical 
complex in the world; see https://www.asce.org/project/houston-ship-channel/.
---------------------------------------------------------------------------

    The EPA prepared three EJSCREEN reports covering buffer areas of 
approximately 1-, 2- and 3-mile diameters around the analyzed section 
of the Channel, and a report covering the 8-county Houston 
nonattainment area.\36\ The analyzed section falls between the 
Channel's upstream terminus (referred to as the Turning Basin) and a 
selected downstream boundary corresponding with the Washburn Tunnel 
(Federal Road), which connects the Houston suburbs of Galena Park and 
Pasadena. In addition to residential sections of Galena Park and 
Pasadena, the buffer areas also include, e.g., parts of the Second 
Ward, Greater East End, Pecan Park and Harrisburg/Manchester 
communities. Table 3 presents a summary of results from the EPA's 
screening-level analysis for the Houston Ship Channel area compared to 
the overall Houston nonattainment area and the U.S. as a whole (the 
four detailed EJSCREEN reports are provided in the docket for this 
rulemaking). Table 3 also includes ozone DVs that were not reported by 
EJSCREEN (see Footnote 28).
---------------------------------------------------------------------------

    \36\ The Houston-Galveston-Brazoria, Texas nonattainment area 
for the 2008 ozone NAAQS is comprised of the following eight 
counties: Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, 
Montgomery, and Waller County. See also https://www3.epa.gov/airquality/greenbook/hbcs.html#TX.

                                                 Table 3--Houston Ship Channel EJSCREEN Analysis Summary
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                        Values for buffer areas (diameter), the Houston nonattainment area, and the U.S. (percentile within U.S. where
                                                                                          indicated)
             Variables              --------------------------------------------------------------------------------------------------------------------
                                             1 mile                  2 miles                3 miles              Houston area               U.S.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pollution Burden Indicators:
    Ozone DV for 2018-2020 *.......  69 ppb (78th %ile)....  69 ppb (78th %ile)....  69 ppb (78th %ile)...  79 ppb (95th %ile)...  65 ppb (--)
    Particulate matter (PM2.5),      9.97 [micro]g/m\3\      9.93 [micro]g/m\3\      9.92 [micro]g/m\3\     9.25 [micro]g/m\3\     8.55[micro]g/m\3\ (--
     annual average.                  (89th %ile).            (89th %ile).            (89th %ile).           (72nd %ile).           )
    Traffic proximity and volume     620 (72nd %ile).......  1,100 (83rd %ile).....  1,300 (85th %ile)....  245 (48th %ile)......  750 (--)
     score **.
    Lead paint (percentage pre-1960  0.65% (85th %ile).....  0.61% (83rd %ile).....  0.59% (82nd %ile)....  0.09% (36th %ile)....  0.28% (--)
     housing).
    Superfund proximity score **...  0.26 (90th %ile)......  0.31 (91st %ile)......  0.35 (92nd %ile).....  0.09 (56th %ile).....  0.13 (--)
    RMP proximity score **.........  4.1 (98th %ile).......  4.5 (98th %ile).......  4 (97th %ile)........  0.95 (69th %ile).....  0.74 (--)
    Hazardous waste proximity score  4.7 (83rd %ile).......  4.8 (83rd %ile).......  4.5 (82nd %ile)......  0.71 (41st %ile).....  5 (--)
     **.
Demographic Indicators:
    People of color population.....  95% (94th %ile).......  95% (93rd %ile).......  93% (92nd %ile)......  49% (64th %ile)......  39% (--)
    Low-income population..........  59% (87th %ile).......  56% (85th %ile).......  55% (84th %ile)......  30% (51st %ile)......  33% (--)
    Linguistically isolated          31% (97th %ile).......  30% (97th %ile).......  26% (96th %ile)......  6% (72nd %ile).......  4% (--)
     population.
    Population with less than high   48% (97th %ile).......  46% (97th %ile).......  44% (97th %ile)......  15% (67th %ile)......  13% (--)
     school education.
    Population under 5 years of age  7% (66th %ile)........  8% (69th %ile)........  8% (72nd %ile).......  7% (63rd %ile).......  6%
    Population over 64 years of age  12% (40th %ile).......  10% (29th %ile).......  9% (27th %ile).......  12% (38th %ile)......  15% (--)
--------------------------------------------------------------------------------------------------------------------------------------------------------
* The buffer areas are assigned the DV for the single monitor site within the analyzed buffer diameter (Clinton). The Houston nonattainment area DV is
  based on the highest DV among the individual monitor sites in the area (Aldine).

[[Page 21834]]

 
** The traffic proximity and volume indicator is a score calculated by daily traffic count divided by distance in meters to the road. The Superfund
  proximity, RMP proximity, and hazardous waste proximity indicators are all scores calculated by site or facility counts divided by distance in
  kilometers.

    Our screening-level analysis of the Houston Ship Channel area 
strongly suggests that communities within the selected buffer areas 
bear a disproportionate overall pollution burden as indicated by high 
percentile values for ozone and multiple EJSCREEN environmental 
indicators.
Screening Analysis Results for Violating Regulatory Ozone Monitor Sites
    The EPA also ran an EJSCREEN analysis focused on areas within the 
Houston nonattainment area that are highly exposed to ozone pollution. 
Specifically, we selected representative locations by examining 
historical DV trends for the 20 regulatory ozone monitoring sites in 
the Houston area (five most recent DV periods covering 2014-2016 to 
2018-2020), identifying the monitor sites most frequently included in 
the top three highest DVs, and preparing 1-mile diameter buffer area 
reports for the resulting four sites. The four analyzed monitor sites 
and their number of top-3 DV periods were Aldine (5 of 5 DV periods), 
Bayland Park (4 of 5 DV periods), Galveston 99th Street (3 of 5 DV 
periods), and Conroe Relocated (2 of 5 DV periods).\37\
    Table 4 presents a summary of results from the EPA's screening-
level analysis of 1-mile diameter buffer areas around the four analyzed 
regulatory ozone monitor sites in the Houston area compared to the 
overall Houston nonattainment area and the U.S. as a whole (detailed 
EJSCREEN reports are provided in the docket for this rulemaking). Table 
4 also presents ozone DV information for the monitor sites (see 
Footnote 28).

                                         Table 4--Houston Area Violating Ozone Monitor EJSCREEN Analysis Summary
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                   Values for monitor site (1-mile buffer), the Houston  nonattainment area, and the U.S.  (percentile within U.S. where
                                                                                        indicated)
            Variables            -----------------------------------------------------------------------------------------------------------------------
                                        Aldine           Bayland Park     Galveston 99th St.   Conroe relocated      Houston area            U.S.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pollution Burden Indicators:
    Ozone DV for 2018-2020......  79 ppb (95th %ile)  76 ppb (92nd %ile)  74 ppb (90th %ile)  74 ppb (90th %ile)  79 ppb * (95th      65 ppb (--)
                                                                                                                   %ile).
    Particulate matter (PM2.5),   10 [mu]g/m\3\       9.95 [mu]g/m\3\     8 [mu]g/m\3\ (32nd  9.62 [mu]g/m\3\     9.25 [mu]g/m\3\     8.55 [mu]g/m\3\ (--
     annual average.               (90th %ile).        (89th %ile).        %ile).              (84th %ile).        (72nd %ile).        )
    Traffic proximity and volume  800 (78th %ile)...  870 (79th %ile)...  380 (62nd %ile)...  84 (32nd %ile)....  245 (48th %ile)...  750 (--)
     score **.
    Superfund proximity score **  0.092 (63rd %ile).  0.14 (78th %ile)..  0.1 (68th %ile)...  0.83 (97th %ile)..  0.09 (56th %ile)..  0.13 (--)
    RMP proximity score **......  0.13 (23rd %ile)..  0.37 (53rd %ile)..  1.2 (80th %ile)...  0.97 (75th %ile)..  0.95 (69th %ile)..  0.74 (--)
    Hazardous waste proximity     2.1 (66th %ile)...  0.94 (49th %ile)..  0.083 (11th %ile).  1.2 (53rd %ile)...  0.71 (41st %ile)..  5 (--)
     score **.
Demographic Indicators:
    People of color population..  96% (94th %ile)...  84% (86th %ile)...  31% (50th %ile)...  38% (56th %ile)...  49% (64th %ile)...  39% (--)
    Low-income population.......  61% (89th %ile)...  60% (88th %ile)...  35% (60th %ile)...  28% (49th %ile)...  30% (51st %ile)...  33% (--)
    Linguistically isolated       54% (99th %ile)...  29% (97th %ile)...  1% (50th %ile)....  7% (79th %ile)....  6% (72nd %ile)....  4% (--)
     population.
    Population with less than     54% (98th %ile)...  33% (92nd %ile)...  8% (47th %ile)....  19% (77th %ile)...  15% (67th %ile)...  13% (--)
     high school education.
    Population under 5 years of   8% (71st %ile)....  9% (81st %ile)....  2% (11th %ile)....  7% (65th %ile)....  7% (63rd %ile)....  6% (--)
     age.
    Population over 64 years of   9% (24th %ile)....  7% (16th %ile)....  17% (66th %ile)...  15% (55th %ile)...  12% (38th %ile)...  15% (--)
     age.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* The Houston nonattainment area DV for 2018-2020 is based on the highest DV among the individual monitor sites in the area (Aldine).
** The traffic proximity and volume indicator is a score calculated by daily traffic count divided by distance in meters to the road. The Superfund
  proximity, RMP proximity, and hazardous waste proximity indicators are all scores calculated by site or facility counts divided by distance in
  kilometers.

    Ozone DV information for the four Houston area ozone monitor sites 
with the highest historical ozone DVs indicates that these areas bear a 
disproportionate ozone pollution burden when compared to the U.S. as a 
whole. The average U.S. ozone DV for the 2018-2020 timeframe was 65.4 
ppb; for the four Houston monitors examined, ozone DVs were 9-14 ppb 
higher during the same time period. We also note that, while Table 4 
indicates the Houston area ozone DV for 2018-2020 was 0.079 ppm, that 
DV is based on the reading from the Aldine monitor (area DVs are based 
on the monitor in the area with the highest recorded values). Ozone air 
quality near these monitors is considerably worse than the rest of 
Houston; for the five most recent DV periods considered in these 
analyses, approximately 75 percent of the Houston area ozone monitor 
sites have had attaining DVs.\38\ Residents living near these monitors 
are therefore subject to ozone concentrations that are well in excess 
of the national average, and high even relative to the rest of Houston. 
The screening-level analysis with respect to other pollution burdens 
(as reflected in the environmental indicators from EJSCREEN) shows that 
communities around violating monitors may also experience significant 
burdens with respect to, e.g., particulate matter pollution and 
proximity to traffic.
---------------------------------------------------------------------------

    \38\ See Table 5 (Site Status) of the spreadsheet containing 
EPA's final 2020 Ozone Design Values report, available at https://www.epa.gov/air-trends/air-quality-design-values#report and provided 
in the docket for this rulemaking.
---------------------------------------------------------------------------

Conclusion

    As discussed earlier, screening analyses for portions of the 
Houston nonattainment area indicated that there are populations in the 
area that may be exposed to a significant and disproportionate burden 
of ozone pollution and other sources of pollution, relative to the 
greater Houston area and the U.S. as a whole. Recognizing that CAA 
section 181(a)(5) permits some exercise of discretion beyond the 
enumerated criteria, the EPA believes it is appropriate to consider 
existing pollution burdens in the area when deciding whether to grant 
an extension. Given the EPA's findings regarding the area's air quality 
trends, our consideration of existing pollution burdens in the area 
weighs in favor of

[[Page 21835]]

electing the more protective approach of not extending the attainment 
date.
d. Stakeholder Input and Agency Outreach
    EPA's screening analyses for both the Houston Ship Channel and 
areas surrounding violating ozone monitors indicated the presence of 
significant populations of low-income individuals, communities of 
color, individuals with less than a high school education, and 
linguistically isolated individuals, relative to the greater Houston 
area and to the U.S. as a whole.
    As part of the EPA's outreach for this proposed rule, we will 
notify our national EJ contacts and the advocacy organizations with 
whom we have engaged previously on Houston-area EJ concerns about the 
availability of the pre-publication version of this proposed rule, the 
conduct of a 60-day public comment period, and the anticipated timing 
of a virtual public hearing (see the SUPPLEMENTARY INFORMATION section 
of this document). The EPA will also make available a fact sheet in 
English and Spanish-language versions for this proposed rule, 
explaining the proposed actions and their implications in non-technical 
terms to better engage a broad audience that includes residents that 
may be particularly impacted by existing pollution or would be impacted 
by the EPA's determination. We are hopeful these steps will improve the 
capacity of all residents in the Houston area to participate in this 
proposed rulemaking.\39\
---------------------------------------------------------------------------

    \39\ For additional discussion of factors affecting public 
participation in the environmental decision-making process see 
``Guidance on Considering Environmental Justice During the 
Development of Regulatory Actions,'' Part 1, Section F (May 2015) at 
https://www.epa.gov/sites/default/files/2015-06/documents/considering-ej-in-rulemaking-guide-final.pdf.
---------------------------------------------------------------------------

e. Proposed Action
    Based on the analysis of air quality trends and EJ considerations 
presented above, the EPA proposes to deny the requested 1-year 
extension of the attainment date and to find that the Houston area 
failed to attain by the July 20, 2021, Serious area attainment date. 
This proposal is based on a number of considerations that, taken 
together, weigh in favor of proposing to deny the state's request, even 
though the area meets the statutory criteria for an extension. 
Specifically, the EPA's assessment of air quality trends in the Houston 
area indicates the area likely will not qualify for a second 1-year 
extension of the attainment date, nor will the area likely timely 
attain by a first extended attainment date of July 20, 2022. We are 
also cognizant of the area's obligations to attain the newer, more 
stringent 2015 standard. In addition, the EPA's screening-level 
analyses of communities near the Houston Ship Channel and of 
communities around violating ozone regulatory monitor sites in the 
Houston area indicate communities that are exposed to elevated ozone 
levels relative to other parts of Houston and the country, and may be 
exposed to additional pollution burdens as well.
    Denying the extension request and determining that the Houston area 
failed to attain the 2008 ozone NAAQS by its attainment date would, by 
operation of law, reclassify the area to Severe for the 2008 ozone 
NAAQS. Per Congress's scheme for ozone implementation under part D, 
subpart 2 of the CAA, such a reclassification would trigger a set of 
more protective Severe area attainment planning requirements. Such 
requirements would include the immediate implementation of more 
stringent Severe area nonattainment new source review (NNSR) permitting 
requirements for new and modified major stationary sources. These 
Severe area NNSR permitting requirements would expand required 
implementation of lowest achievable emission rate (LAER) to smaller 
sources (changing the major source threshold of potential to emit from 
50 tpy to 25 tpy) in addition to imposing more stringent requirements 
to offset new emissions with emissions reductions from existing sources 
(offset ratio of 1.3:1, rather than 1.2:1).\40\ The reclassification 
would also require Texas to develop, submit, and implement RACT 
controls on additional sources, by lowering the major source threshold 
for RACT applicability to the potential to emit 25 tpy (CAA section 
182(d)).
---------------------------------------------------------------------------

    \40\ NNSR major source thresholds and LAER are defined in 40 CFR 
51.165(a)(1)(iv)(A) and (a)(1)(xiii), respectively; emission offset 
ratios are defined in appendix S to 40 CFR part 51 paragraph IV.G.2.
---------------------------------------------------------------------------

    The more stringent Severe area attainment planning requirements are 
designed to promote expeditious attainment of the ozone NAAQS, which 
would benefit all residents of the Houston area. As discussed 
previously, preliminary air quality data for 2021 indicates that the 
area likely will not attain by the extended attainment date nor will it 
likely qualify for a second extension. Given the preliminary 2021 data 
and air quality trends in the area, it is likely that the Houston area 
will be subject to these more stringent requirements and the question 
before the Agency is whether to impose them sooner rather than later. 
We propose that avoiding delay of the requirements is appropriate under 
these circumstances in order to facilitate the area attaining as 
expeditiously as practicable, and applying a protective approach is 
particularly warranted where the Agency has identified populations that 
may already be overburdened with pollution.
    The EPA is soliciting comments on our proposal to deny TCEQ's 
requested 1-year attainment date extension for the Houston Serious 
nonattainment area.
3. Solicitation of Comment on Granting the Requested 1-Year Attainment 
Date Extension for the Houston Area
    As noted above, we have evaluated the information submitted by TCEQ 
and the information indicates that the Houston area meets the two 
statutory criteria for the 1-year extension under CAA section 181(a)(5) 
and 40 CFR 51.1107(a)(1). We take comment on whether the EPA should 
grant the requested 1-year extension of the July 20, 2021, Serious area 
attainment date for the Houston area.
    If made effective, the attainment date for the Houston area would 
be extended to July 20, 2022. This means the area would remain 
classified as Serious for the 2008 ozone NAAQS unless and until the EPA 
makes a determination that the area failed to attain the NAAQS by the 
new attainment date (based on the area's 2019-2021 DV) and thus 
reclassifies the area to Severe by operation of law, or redesignates 
the area to attainment. The EPA solicits comments on granting the 1-
year attainment date extension for the Houston Serious nonattainment 
area.

C. Determinations of Failure To Attain and Reclassification

    The EPA proposes to determine that five Serious nonattainment areas 
failed to attain the 2008 ozone NAAQS by the attainment date of July 
20, 2021. These areas are not eligible for a 1-year attainment date 
extension because they do not meet the extension criteria under CAA 
section 181(a)(5) as interpreted by the EPA in 40 CFR 51.1107. The 
areas' ozone DVs for 2018-2020 are shown in Table 1 of this action.
    If we finalize our action as proposed, each of these areas will be 
reclassified as Severe nonattainment for the 2008 ozone NAAQS, the next 
higher classification, as provided under CAA section 181(b)(2)(A)(i) 
and codified at 40 CFR 51.1103. These areas would then be required to 
attain the standard as expeditiously as practicable but no later than 
15 years after the initial designation as nonattainment, which in this 
case would be no later than July 20, 2027. If an area attains the 2008 
ozone

[[Page 21836]]

NAAQS, the relevant state may seek a Clean Data Determination, under 
which certain attainment planning SIPs for the area would be suspended 
under 40 CFR 51.1118. If an area meets all the other applicable 
statutory criteria, the state could seek a redesignation to attainment 
(Section II.A of this action).
    The EPA requests comment on this proposal for determining that 
these areas did not attain the 2008 ozone NAAQS by the Serious area 
attainment date.

D. Severe Area SIP Revisions

    Serious nonattainment areas that the EPA has determined failed to 
attain the 2008 ozone NAAQS by the attainment date will be reclassified 
as Severe by operation of law upon the effective date of the final 
reclassification action. Each responsible state air agency must submit 
SIP revisions that satisfy the general air quality planning 
requirements under CAA section 172(c) and the ozone specific 
requirements for Severe nonattainment areas under CAA section 182(d), 
as interpreted and described in the final SIP Requirements Rule for the 
2008 ozone NAAQS (see 40 CFR 51.1100 et seq.). This section provides 
discussion of particular Severe area plan elements (RACM and RACT, fee 
program, and transportation-related requirements), and proposes 
submission and implementation deadlines for Severe area SIP revisions 
required by reclassification. As noted previously, tribes are not 
required to submit TIP revisions to address Severe area plan elements.
1. Required Submission Elements
    SIP requirements that apply to Severe areas are cumulative of CAA 
requirements for lower area classifications (i.e., Marginal through 
Serious) and include additional Severe area requirements as interpreted 
and described in the final SIP Requirements Rule for the 2008 ozone 
NAAQS (see CAA sections 172(c)(1) and 182(a)-(d), and 40 CFR 51.1100 et 
seq.). For areas reclassified as Severe, SIP submissions must address 
the more stringent major source threshold of 25 tons per year (tpy) 
\41\ for RACT and NNSR, and the more stringent NNSR emissions offset 
ratio of 1.3:1.\42\ In order to fulfill their Severe area SIP 
submission requirements, states may, where appropriate, certify that 
existing SIP provisions for an area are adequate to address one or more 
Severe area requirements. Such certifications must be submitted as a 
SIP revision.\43\ We are providing additional discussion in the 
following sections for these Severe area requirements: (a) RACM and 
RACT; (b) fee program for major sources if the Severe area fails to 
attain (CAA section 185); and (c) vehicle miles traveled offset 
demonstration and related elements (CAA section 182(d)(1)). Although 
not a required SIP submission, we are also providing a discussion of 
federal reformulated gasoline requirements (CAA section 211(k)(10)(D)) 
that would apply in newly reclassified Severe areas (Section II.D.1.d 
of this action).
---------------------------------------------------------------------------

    \41\ ``For any Severe Area, the terms `major source' and `major 
stationary source' include (in addition to the sources described in 
section 7602 of this title) any stationary source or group of 
sources located within a contiguous area and under common control 
that emits, or has the potential to emit, at least 25 tons per year 
of volatile organic compounds.'' CAA section 182(d).
    \42\ See CAA section 182(d)(2). If a state's plan requires all 
existing major sources in the nonattainment area to use best 
available control technology for VOCs consistent with CAA section 
169(3), the required offset ratio is 1.2 to 1.
    \43\ Air agencies should review any existing regulation that was 
previously approved by the EPA to determine whether it is sufficient 
to fulfill obligations triggered by the revised ozone NAAQS. This 
review should include determining whether the nonattainment area 
boundary for the current ozone NAAQS is consistent with the boundary 
for the previous standards. Where an air agency determines that an 
existing regulation is adequate to meet applicable nonattainment 
area planning requirements of CAA section 182 (or ozone transport 
region RACT requirements of CAA section 184) for a revised ozone 
NAAQS, that air agency's SIP revision may provide a written 
statement certifying that determination in lieu of submitting new 
revised regulations.
---------------------------------------------------------------------------

a. RACM and RACT
    States with jurisdiction over all or a portion of an ozone 
nonattainment area classified as Moderate or higher must provide an 
analysis of--and adopt all--RACM, including RACT, needed for purposes 
of meeting RFP and timely attaining the ozone NAAQS in that area. EPA 
interprets the RACM provision to require a demonstration that the state 
has adopted all technologically and economically feasible measures 
(including RACT) to meet RFP requirements and to demonstrate attainment 
as expeditiously as practicable and thus that no additional measures 
that are reasonably available will advance the attainment date or 
contribute to RFP for the area (80 FR 12264, 12282 March 6, 2015). For 
areas reclassified as Severe, such an analysis should primarily include 
an evaluation of currently available RACT controls for sources that 
emit or have the potential to emit 25 tpy or more, consistent with the 
Severe area classification. CAA section 182(d) establishes a major 
source threshold of 25 tpy for areas designated Severe. Under CAA 
section 182(b)(2)(C), states must provide a SIP submission to adopt 
RACT for all major sources of VOC located in the nonattainment area, 
and section 182(f) applies this requirement to NOX. As such, 
areas classified as Severe must adopt RACT for all sources in the 
nonattainment area that emit, or have the potential to emit, at least 
25 tpy of VOC or NOX. The EPA recognizes that in the context 
of a reclassification to Severe, these areas should already have RACT 
in place to address the lower classifications' requirements (those 
required when the areas were previously classified as Moderate and/or 
Serious); RACT should already be implemented in these areas for sources 
that emit, or have the potential to emit, at least 50 tpy of VOC or 
NOX. CAA subpart 2 requirements are cumulative and Severe 
areas are required to address not only those requirements listed in CAA 
section 182(d) but also in sections 182(a) and (c), to the extent those 
requirements are not superseded by the more stringent requirements in 
section 182(d) and/or have not been previously addressed. However, 
states with areas reclassified as Severe should be primarily focused on 
identifying and adopting new RACT measures required to control sources 
with the potential to emit between 25 to 50 tpy of VOC or 
NOX.
    The EPA has long taken the position that the statutory requirement 
for states to assess and adopt RACT for sources in ozone nonattainment 
areas classified Moderate and higher generally exists independently 
from the attainment planning requirements for such areas.\44\ In 
addition to the independent RACT requirement, states have a statutory 
obligation to evaluate potential RACM and adopt such measures needed to 
meet RFP requirements and to demonstrate attainment as expeditiously as 
practicable when also considering emissions reductions associated with 
the implementation of RACT on sources in the area.\45\ Therefore, to 
the extent

[[Page 21837]]

that a state adopts new or additional RACT controls to meet RFP 
requirements or to demonstrate attainment as expeditiously as 
practicable, those states must include such RACT revisions with the 
other SIP elements due as part of the attainment plan required under 
CAA sections 172(c) and 182(d).
---------------------------------------------------------------------------

    \44\ See Memo from John Seitz, ``Reasonable Further Progress, 
Attainment Demonstration, and Related Requirements for Ozone 
Nonattainment Areas Meeting the Ozone National Ambient Air Quality 
Standard'' (1995), at 5 (explaining that Subpart 2 requirements 
linked to the attainment demonstration are suspended by a finding 
that a nonattainment area is attaining but that requirements such as 
RACT must be met whether or not an area has attained the standard); 
see also 40 CFR 51.1118 (suspending attainment demonstrations, RACM, 
RFP, contingency measures, and other attainment planning SIPs with a 
finding of attainment).
    \45\ Though not directly a part of a nonattainment area RACM 
analysis, the EPA has interpreted CAA section 172(c)(6) to require 
that air agencies also consider the impacts of emissions from 
sources outside an ozone nonattainment area (but within a state's 
boundaries) and must include in the RACM analysis other control 
measures on these intrastate sources if doing so is necessary to 
provide for attainment of the applicable ozone NAAQS within the area 
by the applicable attainment date. For discussion of this ``other 
control measures'' provision see also the final rule to implement 
the 2015 ozone NAAQS (83 FR 63015, December 6, 2018, and 40 CFR 
51.1312(c)), the Phase 2 proposed rulemaking (68 FR 32829, June 2, 
2003) and final rule to implement the 8-hour ozone NAAQS (70 FR 
71623, November 29, 2005), and the final rule to implement the 
PM2.5 NAAQS (81 FR 58035, August 24, 2016).
---------------------------------------------------------------------------

b. Fee Program for Severe Areas That Fail To Attain in the Future
    CAA section 185 requires that states develop SIP revisions for 
Severe and Extreme areas that provide that, if the area fails to timely 
attain the ozone NAAQS in the future, each major stationary source of 
VOCs located in the area shall (except in the case of an attainment 
date extension) pay a fee to the State as a penalty for such failure. 
Section 185(b) of the CAA specifies the method for computing the fee 
amount. The fee is payable for each calendar year beginning after the 
attainment date, until the area is redesignated as an attainment area 
for ozone. Each such plan revision should include procedures for 
assessment and collection of such fees.
    The EPA's fee program provisions, codified for the 2008 ozone NAAQS 
at 40 CFR 51.1117, require states with ozone nonattainment areas 
initially classified Severe or Extreme to submit a SIP revision that 
meets the requirements of CAA section 185 within 10 years of the 
effective date of an area's nonattainment designation. For 
nonattainment areas reclassified as Severe or Extreme \46\ from a lower 
classification after the date of their initial nonattainment 
designation, the EPA retains the ability to set an alternative deadline 
for the CAA section 185 SIP submission, which is discussed in Section 
II.D.2 of this action.
---------------------------------------------------------------------------

    \46\ The EPA interprets CAA section 181(b)(2)(A) as prohibiting 
reclassification of any nonattainment area by operation of law to 
Extreme for failure to timely attain; however, states may request, 
and the Administrator shall grant, a state's request for voluntary 
area reclassification to Extreme under CAA section 181(b)(3).
---------------------------------------------------------------------------

c. Vehicle Miles Traveled Offset Demonstration and Related Elements
    CAA section 182(d)(1)(A) requires a state with a Severe or Extreme 
ozone nonattainment area to submit a SIP revision that identifies and 
adopts specific enforceable transportation control strategies and 
transportation control measures (TCMs) to offset any growth in 
emissions from growth in vehicle miles traveled (VMT) or number of 
vehicle trips in such area.\47\ The EPA has provided guidance titled, 
``Implementing Clean Air Act Section 182(d)(1)(A): Transportation 
Control Measures and Transportation Control Strategies to Offset Growth 
in Emissions Due to Growth in Vehicle Miles Travelled.'' \48\ The 
guidance describes how to demonstrate whether there has been any growth 
in emissions from growth in VMT or growth in the number of vehicle 
trips. The EPA has also developed a tool for use with the MOVES3 
emission factor model that allows states to perform the calculations 
described in the guidance.\49\ If the demonstration shows that there 
has been an increase in emissions due to growth in VMT or vehicle 
trips, the state must adopt transportation control strategies or TCMs 
to offset the identified increase in emissions due to growth in VMT or 
vehicle trips in the nonattainment area and submit those transportation 
control strategies or TCMs as a SIP revision.
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    \47\ Transportation control strategies include diesel engine and 
vehicle replacement programs and TCMs include mass transit 
improvements and bicycle and pedestrian programs.
    \48\ Guidance on implementing the CAA section 182(d)(1)(A) 
requirement for offsetting growth in emissions due to growth in VMT 
is available at https://www.epa.gov/state-and-local-transportation/transportation-related-documents-state-and-local-transportation.
    \49\ The MOVES3 VMT offset tool is available at https://www.epa.gov/moves/tools-develop-or-convert-moves-inputs#special-inputs.
---------------------------------------------------------------------------

    CAA section 182(d)(1)(A) additionally requires that states with 
Severe and Extreme ozone nonattainment areas submit a SIP revision that 
identifies and adopts specific enforceable transportation control 
strategies and TCMs to obtain reductions in motor vehicle emissions as 
necessary, in combination with other emission reduction requirements, 
to comply with RFP requirements. Finally, CAA section 182(d)(1)(A) 
requires states to consider measures specified in CAA section 108(f) 
and choose from among those measures and implement such measures as 
necessary to demonstrate attainment with the relevant ozone NAAQS. CAA 
section 182(d)(1)(A) also requires that in considering these measures, 
states should ensure adequate access to downtown, other commercial, and 
residential areas and should avoid measures that increase or relocate 
emissions and congestion rather than reduce them. Section II.D.2 of 
this action discusses the proposed SIP submission and implementation 
deadlines for the VMT offset demonstration and any necessary 
transportation control strategies and TCMs for newly reclassified 
Severe areas.
d. Reformulated Gasoline
    The CAA prohibits the sale of conventional gasoline in any ozone 
nonattainment area that is reclassified as Severe and requires that 
federal reformulated gasoline (RFG) must instead be sold. The 
prohibition on the sale of conventional gasoline takes effect 1 year 
after the effective date of the reclassification (see CAA section 
211(k)(10)(D)). Many of the areas discussed in today's proposal already 
sell RFG because of their 1987-1989 DVs for the 1-hour ozone NAAQS \50\ 
or because states opted areas into RFG under CAA section 211(k)(6)(A). 
Areas already subject to federal RFG requirements are listed in 40 CFR 
1090.285(a)-(d). Following is a discussion of how subject areas would 
be impacted if the EPA finalizes its proposed determinations of failure 
to attain and reclassifications to Severe for the 2008 ozone NAAQS. It 
is important to note that for any areas that are reclassified as Severe 
for the 2008 ozone NAAQS, states would not promulgate state fuel rules 
for implementing federal RFG because the CAA requirements would be 
implemented as written. Air agencies are thus not required to submit a 
SIP revision addressing RFG requirements, and we are not proposing 
related SIP submission and implementation deadlines. The EPA would 
instead publish another final rule at a later date to appropriately 
revise the lists of RFG covered areas in 40 CFR 1090.285 for 
administrative purposes (see 40 CFR 1090.290(e)).
---------------------------------------------------------------------------

    \50\ CAA section 211(k)(10)(D) required that the ``. . . 9 ozone 
nonattainment areas having a 1980 population in excess of 250,000 
and having the highest ozone DV during the period 1987 through 1989 
shall be `covered areas' for purposes of this subsection.''
---------------------------------------------------------------------------

New York-N. New Jersey-Long Island, NY-NJ-CT
    The New York-N. New Jersey-Long Island, NY-NJ-CT area (herein 
referred to as the New York City area) is one of the nine federal RFG 
areas where the sale of conventional gasoline is currently prohibited 
because of its 1987-1989 1-hour ozone NAAQS DV. However, there are some 
geographic differences between the New York-Northern New Jersey-Long 
Island-Connecticut federal RFG area and the

[[Page 21838]]

2008 ozone NAAQS nonattainment area. Warren County, NJ and all of 
Fairfield, Middlesex and New Haven Counties in Connecticut are part of 
the 2008 ozone NAAQS nonattainment area but are not included in the 
current New York-Northern New Jersey-Long Island-Connecticut federal 
RFG area. However, the sale of conventional gasoline is already 
prohibited in these four counties as follows. Warren County, NJ is an 
RFG opt-in area (see 40 CFR 1090.285(c)). A portion of Fairfield 
County, Connecticut is already part of the New York-Northern New 
Jersey-Long Island-Connecticut federal RFG area and the remainder of 
Fairfield County is already part of the Greater Connecticut, CT, 
federal RFG area. Finally, Middlesex and New Haven Counties in 
Connecticut are already part of the Greater Connecticut, CT, federal 
RFG area (see 40 CFR 1090.285(a)).
    Therefore, if the New York City area is reclassified as Severe for 
the 2008 ozone NAAQS, it will not result in any changes to where 
federal RFG is sold in the nonattainment area.
Chicago-Naperville, IL-IN-WI
    The Chicago-Naperville, IL-IN-WI area (herein referred to as the 
Chicago area) is one of the nine federal RFG areas where the sale of 
conventional gasoline is prohibited because of its 1987-1989 1-hour 
ozone NAAQS DV (see 40 CFR 1090.285(a)). However, there is one 
difference between the Chicago-Gary-Lake County federal RFG area and 
the Chicago 2008 ozone NAAQS nonattainment area. Part of Kenosha 
County, WI is included in the Chicago 2008 ozone nonattainment area. 
The sale of conventional gasoline is already prohibited in Kenosha 
County, WI because it is part of the Milwaukee-Racine federal RFG area. 
Therefore, if the Chicago area is reclassified as Severe for the 2008 
ozone NAAQS, it will not result in any changes to where federal RFG is 
sold in the nonattainment area (see 40 CFR 1090.285(a)).
Houston-Galveston-Brazoria, TX
    The Houston-Galveston-Brazoria area (herein referred to as the 
Houston area) is one of the nine federal RFG areas where the sale of 
conventional gasoline is prohibited because of its 1987-1989 1-hour 
ozone NAAQS DV (see 40 CFR 1090.285(a)). The Houston 2008 ozone NAAQS 
nonattainment area and the Houston-Galveston-Brazoria federal RFG area 
are identical. Therefore, whether or not the Houston area is 
reclassified as Severe for the 2008 ozone NAAQS, it will not result in 
any changes to where federal RFG is sold in the nonattainment area.
Dallas-Fort Worth, TX
    The sale of conventional gasoline is already prohibited in Colin, 
Dallas, Denton, and Tarrant Counties because Texas chose to opt the 4-
county Dallas-Fort Worth 1-hour ozone nonattainment area into RFG (see 
57 FR 46316, October 8, 1992, and 40 CFR 1090.285(c)). If the 10-county 
Dallas-Fort Worth 2008 ozone NAAQS nonattainment area is reclassified 
as Severe, the prohibition on the sale of conventional gasoline under 
CAA section 211(k)(10)(D) and the sale of federal RFG would apply to 
the 10-county nonattainment area 1 year after the effective date of the 
reclassification.
Denver-Boulder-Greeley-Ft. Collins-Loveland, CO
    If the Denver-Boulder-Greeley-Ft. Collins-Loveland area (herein 
referred to as the Denver area) is reclassified as Severe for the 2008 
ozone NAAQS, the prohibition on the sale of conventional gasoline would 
apply to the entire area under CAA section 211(k)(10)(D). This would be 
a new requirement for the area as federal RFG is not currently required 
to be sold in any part of the Denver 2008 ozone NAAQS nonattainment 
area. The sale of federal RFG would apply to the entire nonattainment 
area 1 year after the effective date of the reclassification.
Morongo Band of Mission Indians Area
    If the Morongo Band of Mission Indians area is reclassified as 
Severe for the 2008 ozone NAAQS, the prohibition on the sale of 
conventional gasoline would apply in the area. However, the Morongo 
Band of Mission Indians area is within the Los Angeles-Anaheim-
Riverside federal RFG area, which is one of the nine areas where the 
sale of conventional gasoline is already prohibited because of its 
1987-1989 1-hour ozone NAAQS DV (see 40 CFR 1090.285(a)). Therefore, if 
this proposal is finalized and the Morongo Band of Mission Indians area 
is reclassified as Severe for the 2008 ozone NAAQS, it will not result 
in any changes to federal RFG requirements for the nonattainment area.
2. Submission and Implementation Deadlines
    On July 20, 2012, when final nonattainment designations became 
effective for the 2008 ozone NAAQS, states responsible for areas 
initially classified as Severe were required to prepare and submit SIP 
revisions by deadlines relative to that effective date. For those 
areas, the submission deadlines ranged from 2 to 10 years after July 
20, 2012, depending on the SIP element required (e.g., 2 years for the 
RACT SIP and VMT offset demonstration, 4 years for the attainment 
demonstration, 10 years for the section 185 fee program). Initial 
Severe areas were also required to implement RACT as expeditiously as 
practicable but no later than January 1 of the 5th year after July 20, 
2012 (i.e., January 1, 2017). Except for the section 185 fee program 
submission deadline, those deadlines have passed, and the EPA proposes 
to use its discretion under CAA section 182(i) to adjust the SIP 
deadlines that would otherwise apply. We discuss submission and 
implementation deadlines for areas reclassified as Severe in the 
following sections: (a) Submission deadline for SIP revisions, and (b) 
implementation deadline for required controls.
a. Submission Deadline for SIP Revisions
    The EPA proposes that states submit SIP revisions addressing all 
Severe area requirements (Section II.D.1 of this action) no later than 
18 months after the effective date of the final reclassification 
action. With the exception of SIP revisions addressing CAA section 185 
fee program requirements (discussed as follows in this section), the 
SIP revision submission deadlines for areas initially classified as 
Severe have passed (see 40 CFR 51.1100 et seq.).
    For newly reclassified Severe areas, the EPA believes that an 18-
month deadline for the attainment planning requirements ``is necessary 
and appropriate'' to assure consistency among these submissions (per 
CAA section 182(i)). For ozone areas reclassified by operation of law 
under CAA section 181(b)(2) from Moderate to Serious, we have generally 
established 12-month SIP submission deadlines.\51\ However, we now 
propose that an 18-month schedule for submission of SIP revisions is 
appropriate for reclassifications from Serious to Severe given the 
longer interval to the ``maximum'' attainment date associated with 
areas reclassified from Serious to Severe as compared to areas 
reclassified from Moderate to Serious.\52\ That is, there is generally 
a 3-year interval between the attainment dates for areas

[[Page 21839]]

reclassified from Moderate to Serious (with exceptions for areas that 
states can demonstrate can attain the NAAQS more quickly and for areas 
once they are granted attainment date extensions). However, there is a 
6-year interval between maximum attainment dates for areas reclassified 
from Serious to Severe (see 40 CFR 51.1103). Given the longer interval 
between the Serious and Severe maximum attainment dates, we find that 
providing a longer period for submission of SIP revisions addressing 
Severe area requirements for reclassified areas is appropriate and will 
allow air agencies time to finish reviews of available control 
measures, adopt revisions to necessary control strategies, address 
other SIP requirements and complete the public notice process necessary 
to adopt and submit timely SIP revisions. As discussed in Section 
II.D.2.b of this action, we are proposing that any controls that air 
agencies determine are needed for meeting CAA requirements must be 
implemented as expeditiously as practicable but no later than 18 months 
from the proposed SIP submission deadline. In combination with our 
proposed submission deadline, the proposed overall 36-month schedule 
for controls implementation could result in meaningful emissions 
reductions by the Severe area attainment DV time period (2024-2026).
---------------------------------------------------------------------------

    \51\ See, e.g., 75 FR 79302 (December 20, 2010) (Dallas-Ft. 
Worth, Texas, reclassification to Serious for the 1997 8-hour ozone 
NAAQS); 69 FR 16483 (March 30, 2004) (Beaumont-Port Arthur, Texas, 
reclassification to Serious for the 1979 1-hour ozone NAAQS); 68 FR 
4836 (January 30, 2003) (St. Louis, Missouri, reclassification to 
Serious for the 1979 1- hour ozone NAAQS).
    \52\ Nonattainment areas are required to attain the ozone NAAQS 
as expeditiously as practicable but not later than the applicable 
attainment date (see CAA section 181(a)(1)); this ``not later than'' 
date is also referred to as the maximum attainment date.
---------------------------------------------------------------------------

    RACM and RACT. The EPA proposes that the SIP revision to address 
RACM and RACT requirements will be due 18 months after the effective 
date of reclassification, consistent with all other required Severe 
area plan elements. We believe this deadline would provide a reasonable 
planning schedule and consistency across submissions (per CAA section 
182(i)) while not unduly delaying implementation of additional needed 
controls. As noted previously, states with areas reclassified as Severe 
should be primarily focused on identifying and adopting new RACT 
measures required to control sources with the potential to emit between 
25 to 50 tpy of VOC or NOX. The slightly longer timeframe to 
prepare and adopt SIP revisions for reclassified Severe areas (compared 
to approximately 12 months for previous 2008 ozone reclassification 
actions) could result in states determining that additional controls 
are reasonable (compared to what controls the state may be able to 
assess in a shorter 12-month timeframe), which could then help expedite 
air quality improvements in these areas. We believe an 18-month 
submission deadline would best balance the goals of more robust SIP 
revisions and--in combination with our proposed controls implementation 
deadline--expeditious and meaningful emissions reductions for areas 
reclassified as Severe (Section II.D.2.b of this action). The EPA 
requests comment on this proposed deadline for RACM and RACT 
submissions.
    CAA section 185 fee programs. The EPA proposes that the SIP 
revision to address the section 185 fee program requirements will be 
due 18 months after the effective date of reclassification, consistent 
with all other required Severe area plan elements. As previously 
described, the due date for the section 185 fee programs for the 2008 
NAAQS for an area initially classified as Severe is 10 years from the 
effective date of designation, or July 20, 2022, as codified at 40 CFR 
51.1117. This 2022 date was chosen because it followed the approach 
laid out in CAA section 182(d)(3), which established a section 185 fee 
program due date of December 31, 2000, for areas classified Severe by 
operation of law under the 1990 CAA Amendments (see 80 FR 12264, 12266, 
March 6, 2015). CAA section 181(a) assigned these same areas an 
attainment date of November 15, 2005. These deadlines are intended to 
ensure that the section 185 fee program was submitted to EPA for 
approval well in advance of (i.e., just short of 5 years before) the 
attainment date. This allowance gives EPA time to review and act on the 
program submission, which in turn ensures that the air agency's fee 
program infrastructure will be in place in advance of the actual Severe 
area attainment date. This is important in ensuring smooth 
implementation of the program if the area fails to timely attain, 
because collection of fees is required under section 185 to begin for 
the calendar year immediately following the Severe area attainment 
date. For the 2008 NAAQS, the July 20, 2022, date for initial Severe 
areas is consistent with that approach. However, Congress did not 
specify dates for areas reclassified as Severe, and we believe there 
are timing considerations that warrant a later date here. A later date 
would also provide consistency with other proposed Severe area SIP 
submission deadlines for the areas currently being reclassified.
    Applying the July 20, 2022, date to areas reclassified as Severe 
would result in an unreasonably short time for air agencies to develop 
their section 185 fee programs, especially since these agencies will 
also be working to address all the other Severe area requirements 
discussed in this action. Accordingly, the EPA believes it is 
reasonable to set the section 185 fee program due date at 18 months 
after reclassification, in line with the other elements. Although this 
will reduce implementation lead time compared to that in CAA section 
182(d)(3) and 40 CFR 51.1117 for initially classified Severe areas, we 
anticipate that this timing would still be adequate to get the fee 
program in place ahead of the Severe area attainment date. The EPA 
recognizes the effort required to develop a section 185 fee program, 
but we also note the opportunities to synchronize the adoption process 
for the section 185 program with that of the other Severe area 
requirements. Providing longer than 18 months for submission of the 
section 185 program element would create inconsistent deadlines and 
would reduce the lead time for implementing the program by an even 
greater amount than the EPA's proposal. Accordingly, we are proposing a 
deadline of 18 months for submission of the section 185 fee program 
element. The EPA requests comment on this proposed deadline.
    VMT offset demonstration and related elements. The EPA proposes 
that a SIP revision to address the VMT offset demonstration will be due 
18 months after the effective date of reclassification, consistent with 
all other Severe area requirements. If the demonstration shows that a 
state must adopt transportation control strategies or TCMs to offset 
any identified increase in emissions due to growth in VMT or vehicle 
trips, we are proposing that the transportation control strategies and/
or TCMs be submitted at that same time as the SIP revision to address 
the VMT offset demonstration. The EPA requests comment on this proposed 
deadline.
b. Implementation Deadline for Required Controls
    As required by 40 CFR 51.1108(d) the state must provide for 
implementation of all control measures needed for attainment no later 
than the beginning of the attainment year ozone season.\53\ Further, 
the EPA proposes that any controls that air agencies determine are 
needed for meeting CAA requirements must be implemented as 
expeditiously as practicable but no later than 18 months from the 
proposed SIP submission deadline. These controls would include any 
identified RACT, and any needed transportation control strategies or 
TCMs indicated in the VMT offset demonstration. In combination with our 
proposed submission deadline for Severe area SIP revisions (no later 
than 18 months after the effective date

[[Page 21840]]

of the final reclassification action, as discussed in Section II.D.2.a 
of this action), air agencies and affected sources would have an 
overall schedule of 36 months to identify, adopt, and implement new 
pollution controls.
---------------------------------------------------------------------------

    \53\ ``Attainment year ozone season'' is defined as the ozone 
season immediately preceding a nonattainment area's maximum 
attainment date (see 40 CFR 51.1100(h)), with the attainment year 
being the calendar year corresponding with that final ozone season 
for determining attainment.
---------------------------------------------------------------------------

    The EPA's proposed implementation deadline is intended to balance 
the time needed for sources to install and implement new required 
controls with the time needed for resulting emissions reductions to 
meaningfully contribute to RFP and timely attainment in newly 
reclassified Severe areas. As a general matter, the Act requires 
implementation of RACM and RACT requirements needed for timely 
attainment ``as expeditiously as practicable'' (see CAA section 
172(c)(1)). The EPA's implementing regulations for the 2008 ozone NAAQS 
require that, for areas initially classified as Moderate or higher, a 
state shall provide for implementation of RACM and RACT as 
expeditiously as practicable but no later than January 1 of the 5th 
year after the effective date of designation (see 40 CFR 
51.1112(a)(3)), which corresponded with the beginning of the attainment 
year for initial Moderate areas (January 1, 2017). The modeling and 
attainment demonstration requirements for 2008 ozone NAAQS areas 
classified Moderate or higher require that a state must provide for 
implementation of all control measures needed for attainment no later 
than the beginning of the attainment year ozone season (see 40 CFR 
51.1108(d)). These regulations allow a comparable amount of time for 
sources to meet RACT requirements as originally anticipated under the 
1990 CAA Amendments (see CAA section 182(b)(2)), with the objective 
that RACT measures be in place to influence an area's attainment year 
air quality and DV. Although the CAA does not establish an 
implementation deadline for transportation control strategies or TCMs 
(see CAA section 182(d)(1)(A)), we believe the same timing rationale 
would apply and that it would be appropriate to align the 
implementation deadline for RACT and these transportation-related 
controls.
    In the case of newly reclassified Severe areas, the longer interval 
between the Serious and Severe maximum attainment dates means that the 
proposed 36-month schedule for controls implementation could result in 
meaningful emissions reductions even earlier in the attainment DV time 
period (2024-2026). For areas implementing both the 2008 and the 2015 
ozone standards, we believe allowing adequate time to identify and 
implement additional controls will help nonattainment areas attain both 
standards more expeditiously.
    The EPA requests comment on aligning the implementation deadlines 
for RACT and transportation-related controls and requiring that any 
controls needed for meeting RFP or timely attainment of the 2008 ozone 
NAAQS be implemented as expeditiously as practicable but no later than 
18 months after the proposed SIP submission deadline. We also request 
comment on providing an overall 36-month schedule for SIP submission 
and controls implementation.

III. Environmental Justice Considerations

    As discussed in Section II.B of this action, the EPA proposes to 
deny a request for a 1-year attainment date extension for the Houston-
Galveston-Brazoria, Texas, nonattainment area and to determine that the 
area failed to attain the 2008 ozone NAAQS by the attainment date. The 
proposal to deny the extension request is based on our assessment of 
air quality trends in the Houston area, and, given our findings that 
the area is not likely to attain by an extended attainment date or 
qualify for a second extension, our consideration of the impact of our 
action on existing pollution burdens in the area. Screening-level EJ 
analyses indicate an already disproportionate pollution burden for 
communities near the Houston Ship Channel and communities around 
violating ozone regulatory monitor sites in the Houston area. Denying 
the state's request to extend the attainment date would result in the 
area's reclassification to Severe, and in more timely application in 
this area of the Act's more stringent controls associated with that 
higher classification. Expeditious attainment of the NAAQS will protect 
all those residing, working, attending school, or otherwise present in 
those areas, including communities of color and low-income communities.

IV. Statutory and Executive Order Reviews

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

    This action is exempt from review by the Office of Management and 
Budget because it responds to the CAA requirement to determine whether 
areas designated nonattainment for an ozone NAAQS attained the standard 
by the applicable attainment date, and to take certain steps for areas 
that failed to attain.

B. Paperwork Reduction Act (PRA)

    This action does not impose any new information collection burden 
under the PRA. OMB has previously approved the information collection 
activities contained in the existing regulations and has assigned OMB 
control number 2060-0695. This action proposes to: (1) Find that 
certain Serious ozone nonattainment areas listed in Table 1 of this 
action failed to attain the 2008 NAAQS by the applicable attainment 
date; (2) identify those areas subject to reclassification as Severe 
ozone nonattainment areas by operation of law upon the effective date 
of the reclassification notice; and (3) adjust any applicable 
implementation deadlines. Thus, the proposed action does not establish 
any new information collection burden that has not already been 
identified and approved in the EPA's information collection request.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action will not impose any requirements on small entities. The proposed 
determinations of attainment and failure to attain the 2008 ozone NAAQS 
(and resulting reclassifications), and the proposed determination 
either to grant or to deny a 1-year attainment date extension do not in 
and of themselves create any new requirements beyond what is mandated 
by the CAA. Instead, this rulemaking only makes factual determinations, 
and does not directly regulate any entities.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. This action imposes no enforceable duty on any 
state, local or tribal governments or the private sector.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government. The 
division of responsibility between the Federal government and the 
states for purposes of implementing the NAAQS is established under the 
CAA.

[[Page 21841]]

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

    This action has tribal implications. However, it will neither 
impose substantial direct compliance costs on federally recognized 
tribal governments, nor preempt tribal law.
    The EPA has identified tribal areas within the nonattainment areas 
covered by this proposed rule, that would be potentially affected by 
this rule. Specifically, two of the nonattainment areas addressed in 
this proposal have tribes located within their boundaries: the Greater 
Connecticut, CT, area (Mashantucket Pequot Tribal Nation and Mohegan 
Indian Tribe), and the New York-Northern New Jersey-Long Island, CT-NJ-
NY area (Shinnecock Indian Nation). One of the nonattainment areas 
addressed in this document is a separate tribal nonattainment area 
(Morongo Band of Mission Indians, California area).
    The EPA has concluded that the proposed rule may have tribal 
implications for these tribes for the purposes of Executive Order 
13175, but would not impose substantial direct costs upon the tribes, 
nor would it preempt tribal law. As noted previously, a tribe that is 
part of an area that is reclassified from Serious to Severe 
nonattainment is not required to submit a TIP revision to address new 
Severe area requirements. However, if the EPA finalizes the 
determinations of failure to attain proposed in this action, the NNSR 
major source threshold and offset requirements would change for 
stationary sources seeking preconstruction permits in any nonattainment 
areas newly reclassified as Severe (Section II.D.1 of this action), 
including on tribal lands within these nonattainment areas. Areas that 
are already classified Severe for a previous ozone NAAQS are already 
subject to these higher offset ratios and lower thresholds, so a 
reclassification to Severe for the 2008 ozone NAAQS would have no 
effect on NNSR permitting requirements for tribal lands in those areas.
    The EPA has communicated or intends to communicate with the 
potentially affected tribes located within the boundaries of the 
nonattainment areas addressed in this proposal, including offering 
government-to-government consultation, as appropriate.

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

    The EPA interprets Executive Order 13045 as applying 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 establish an environmental 
standard intended to mitigate health or safety risks.

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

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

I. National Technology Transfer Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

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

    The EPA believes that this action does not have disproportionately 
high and adverse human health or environmental effects on minority 
populations, low-income poulations and/or indigenous peoples, as 
specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The 
documentation for this determination is presented in Section II.B of 
this action, ``Extension of Serious Area Attainment Date,'' and 
summarized in Section III of this action, ``Environmental Justice 
Considerations,'' and the relevant documents have been placed in the 
public docket for this action.
    With respect to the determinations of whether areas have attained 
the NAAQS by the attainment date, the EPA has no discretionary 
authority to address EJ in these determinations. The CAA directs that 
within 6 months following the applicable attainment date, the 
Administrator shall determine, based on the area's design value as of 
the attainment date, whether the area attained the standard by that 
date. CAA section 181(b)(2)(A). Except for any Severe or Extreme area, 
any area that the Administrator finds has not attained the standard by 
that date shall be reclassified by operation of law to either the next 
higher classification or the classification applicable to the area's 
design value. Id.

K. Judicial Review

    Section 307(b)(1) of the CAA governs judicial review of final 
actions by the EPA. This section provides, in part, that petitions for 
review must be filed in the Court of Appeals for the District of 
Columbia Circuit: (i) When the agency action consists of ``nationally 
applicable regulations promulgated, or final actions taken, by the 
Administrator,'' or (ii) when such action is locally or regionally 
applicable, 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.'' For 
locally or regionally applicable final actions, the CAA reserves to the 
EPA complete discretion whether to invoke the exception in (ii).\54\
---------------------------------------------------------------------------

    \54\ In deciding whether to invoke the exception by making and 
publishing a finding that this action, if finalized, is based on a 
determination of nationwide scope or effect, the Administrator 
intends to take into account a number of policy considerations, 
including his judgment balancing the benefit of obtaining the D.C. 
Circuit's authoritative centralized review versus allowing 
development of the issue in other contexts and the best use of 
agency resources.
---------------------------------------------------------------------------

    The EPA is proposing findings regarding attainment of the NAAQS in 
nonattainment areas within nine states located in six of the ten EPA 
regions pursuant to a uniform process and standard. The EPA is also 
proposing to establish SIP submission and implementation deadlines for 
all newly reclassified areas in the identified states using a common, 
nationwide method. The jurisdictions that would be affected by this 
action, if finalized, represent a wide geographic area and fall within 
several different judicial circuits.
    If the Administrator takes final action on this proposal, then, in 
consideration of the effects of the action across the country, the EPA 
views this action to be ``nationally applicable'' within the meaning of 
CAA section 307(b)(1). In the alternative, to the extent a court finds 
this proposal, if finalized, to be locally or regionally applicable, 
the Administrator intends to exercise the complete discretion afforded 
to him under the CAA to make and publish a finding that this action is 
based on a determination of ``nationwide scope or effect'' within the 
meaning of CAA section 307(b)(1).\55\
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    \55\ In the report on the 1977 Amendments that revised CAA 
section 307(b)(1), Congress noted that the Administrator's 
determination that the ``nationwide scope or effect'' exception 
applies would be appropriate for any action that has a scope or 
effect beyond a single judicial circuit. See H.R. Rep. No. 95-294 at 
323-24, reprinted in 1977 U.S.C.C.A.N. 1402-03.

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[[Page 21842]]

List of Subjects

40 CFR Part 52

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

40 CFR Part 81

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Designations and classifications, 
Intergovernmental relations, Nitrogen oxides, Ozone, Reporting and 
recordkeeping requirements, and Volatile organic compounds.

Michael Regan,
Administrator.
[FR Doc. 2022-07509 Filed 4-12-22; 8:45 am]
BILLING CODE 6560-50-P


