[Federal Register Volume 87, Number 71 (Wednesday, April 13, 2022)]
[Proposed Rules]
[Pages 21825-21842]
[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:<PHONE_NUMBER>.
     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

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<PHONE_NUMBER>.
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:<PHONE_NUMBER>; 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:<PHONE_NUMBER>;
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<PHONE_NUMBER> 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<PHONE_NUMBER> 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

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

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

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

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

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,

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

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).

** 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

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

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

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.
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    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)).
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    \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.''
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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

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

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

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