Denial of Request for Attainment Date Extension, Finding of Failure To Attain, and Reclassification of an Area in Utah as Moderate for the 2015 Ozone National Ambient Air Quality Standards, 101483-101489 [2024-29246]
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§ 62.6357 Missouri Department of Natural
Resources.
(a) Identification of plan. Missouri
plan for control of landfill gas emissions
from existing municipal solid waste
landfills and associated state regulations
submitted on January 26, 1998, with
amendments on September 8, 2000,
February 9, 2012, and July 25, 2022. The
plan includes the regulatory provisions
cited in paragraph (d) of this section,
which EPA incorporates by reference.
(b) Identification of sources. The plan
applies to all existing municipal solid
waste landfills for which construction,
reconstruction, or modification was
commenced before May 30, 1991, that
accepted waste at any time since
November 8, 1987, or that have
additional capacity available for future
waste deposition, and have design
capacities greater than 2.5 million
megagrams and nonmethane organic
emissions greater than 50 megagrams
per year, as described in 40 CFR part 60,
subpart Cc.
(c) Effective date. The effective date of
the plan for municipal solid waste
landfills is June 23, 1998. The
amendments are effective January 16,
2001, May 30, 2012, and January 15,
2025, respectively.
(d) Incorporation by reference. (1)
Certain material is incorporated by
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(i) 10 CSR 10–5.490, Municipal Solid
Waste Landfills, effective July 30, 2022.
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(ii) 10 CSR 10–6.310, Restriction of
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Landfills, effective July 30, 2022.
[FR Doc. 2024–29404 Filed 12–13–24; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 81
[EPA–R08–OAR–2024–0001; FRL–12469–
01–R8]
Denial of Request for Attainment Date
Extension, Finding of Failure To Attain,
and Reclassification of an Area in Utah
as Moderate for the 2015 Ozone
National Ambient Air Quality
Standards
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is denying a request by
the State of Utah and the Ute Indian
Tribe for an extension of the attainment
date for the Uinta Basin, Utah Marginal
nonattainment area under the 2015
ozone National Ambient Air Quality
Standards (NAAQS). In addition, we are
determining that the area did not attain
the standard by the applicable
attainment date, and accordingly that
the area will be reclassified by operation
of law to ‘‘Moderate’’ nonattainment for
the 2015 ozone NAAQS on the effective
date of this final rule. With respect to
the Uinta Basin area, this action fulfills
the EPA’s obligation under the Clean
Air Act (CAA) to determine whether
ozone nonattainment areas attained the
NAAQS by the Marginal area 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.
SUMMARY:
This rule is effective on January
15, 2025.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–R08–OAR–2024–0001. All
documents in the docket are listed on
the https://www.regulations.gov
website. Although listed in the index,
some information is not publicly
available, e.g., Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available through https://
DATES:
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101483
www.regulations.gov, or please contact
the person identified in the FOR FURTHER
INFORMATION CONTACT section for
additional availability information.
FOR FURTHER INFORMATION CONTACT:
Amanda Brimmer, Air and Radiation
Division, EPA, Region 8, Mailcode
8ARD–AQ–R, 1595 Wynkoop Street,
Denver, Colorado 80202–1129,
telephone number: (303) 312–6323,
email address: brimmer.amanda@
epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document wherever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
the EPA.
I. Overview of Action
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 CAA section
181(b)(2)). The EPA’s determination of
attainment for the 2015 ozone NAAQS
is based on a nonattainment area’s
design value (DV) as of the attainment
date.1
The 2015 ozone NAAQS is met at a
monitoring site when the DV does not
exceed 0.070 parts per million (ppm).
This action addresses the Uinta Basin
area in Utah, which includes portions of
Duchesne and Uintah Counties. The
Uinta Basin was initially classified as
Marginal for the 2015 ozone NAAQS
and received a 1-year extension of the
attainment date in 2022, making the
Marginal area attainment date for this
area August 3, 2022. As further
explained in the Response to Comment
document in the docket, in this action
we are denying a request for a second
1-year extension. Accordingly, the
applicable attainment date for the area
remains August 3, 2022. Because DVs
are based on the three most recent,
complete calendar years of data
preceding the attainment date,
attainment must occur no later than
December 31 of the year before the
attainment date (i.e., December 31,
2021, in the case of the Uinta Basin
Marginal nonattainment area for the
2015 ozone NAAQS). Accordingly, the
EPA’s determination for this area is
1 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 data handling conventions
for calculating DVs for the 2015 ozone NAAQS are
specified in appendix U to 40 CFR part 50. The DV
for the 2015 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 DV
for an area is the highest DV among the individual
monitoring sites located in the area.
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based upon the complete, qualityassured, and certified ozone monitoring
data from calendar years 2019, 2020,
and 2021.
The EPA is finding that the Uinta
Basin Marginal area did not attain by
the attainment date, because the area’s
2019–2021 DV was 0.078 ppm, which is
greater than 0.070 ppm. Under CAA
section 181(b)(2)(A), the effect of this
determination is that this area will be
reclassified by operation of law as
Moderate on the effective date of this
final rule. The reclassified area will then
be subject to the Moderate area
requirement to attain the 2015 ozone
NAAQS as expeditiously as practicable,
but not later than August 3, 2024.
As a result of the area’s
reclassification as Moderate, Utah must
submit to the EPA the State
Implementation Plan (SIP) revisions for
this area that satisfy the statutory and
regulatory requirements applicable to
Moderate areas established in CAA
section 182(b) and in the 2015 Ozone
NAAQS SIP Requirements Rule (see 83
FR 62998, December 6, 2018). The EPA
will be establishing deadlines for the
Uinta Basin area for submitting SIP
revisions and for planning requirements
on Indian Country in a separate action.
II. What is the background for this
action?
On October 26, 2015, the EPA issued
its final action to revise the NAAQS for
ozone to establish a new 8-hour
standard (see 80 FR 65452, October 26,
2015). In that action, the EPA
promulgated identical tighter primary
and secondary ozone standards,
designed to protect public health and
welfare, that specified an 8-hour ozone
level of 0.070 ppm. Specifically, the
standards provide that the 3-year
average of the annual fourth highest
daily maximum 8-hour average ozone
concentration may not exceed 0.070
ppm.
Effective August 3, 2018, the EPA
designated 52 areas throughout the
country as nonattainment for the 2015
ozone NAAQS (see 83 FR 25776, June
4, 2018). In a separate action, the EPA
assigned classification thresholds and
attainment dates based on the severity
of an area’s ozone problem, determined
by the area’s DV (see 83 FR 10376, May
8, 2018). Consistent with CAA section
181(a), the EPA established the
attainment date for Marginal, Moderate,
and Serious nonattainment areas as 3
years, 6 years, and 9 years, respectively,
from the effective date of the final
designations. Thus, the attainment date
for Marginal nonattainment areas for the
2015 ozone NAAQS was August 3,
2021; the attainment date for Moderate
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areas was August 3, 2024; and the
attainment date for Serious areas is
August 3, 2027. On October 7, 2022 (87
FR 60897), the EPA determined that 22
areas, including the Uinta Basin area,
did not attain the standards by the
Marginal attainment date. All of these
areas except the Uinta Basin were
reclassified as Moderate by operation of
law. As to the Uinta Basin, however,
EPA granted a 1-year extension of the
attainment date, to August 3, 2022.
The State of Utah requested a second
1-year extension of the attainment date
for the Uinta Basin, to August 3, 2023.
On December 20, 2022, the Ute Indian
Tribe also requested a second one-year
extension.2 Granting this extension
would make the relevant years for
evaluating attainment 2020–2022. On
April 10, 2024 (89 FR 25223), EPA
proposed to grant the request for a
second extension, and to determine that
the area attained by this attainment date
based on data from 2020–2022. EPA
took public comment on this proposal
through May 10, 2024.
III. What is the statutory authority for
this action?
The statutory authority for this
determination is provided by the CAA,
as amended (42 U.S.C. 7401 et seq.),
including sections 107, 181 and 182.
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 each 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
emission 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 are ‘‘Marginal,’’ ‘‘Moderate,’’
‘‘Serious,’’ ‘‘Severe,’’ and ‘‘Extreme,’’ in
order of stringency. CAA section 182
provides the specific attainment
planning and additional requirements
that apply to each ozone nonattainment
area based on its classification.
2 See letter dated December 20, 2022, from Ute
Indian Tribe Chairman Shaun Chapoose to U.S.
EPA Region 8 Regional Administrator KC Becker.
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Section 181(b)(2)(A) of the CAA
provides that within 6 months following
the applicable attainment date, the EPA
must determine whether an ozone
nonattainment area attained the ozone
standard based on the area’s DV as of
that date. Section 181(a)(5) of the CAA
provides the EPA the discretion (i.e.,
‘‘the Administrator may’’) to extend an
area’s applicable attainment date by one
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 at 40 CFR
51.1307. No more than two one-year
extensions may be issued for a single
nonattainment area. CAA section
181(a)(5).
With respect to the first criterion, the
EPA interprets the provision as having
been satisfied if a state can demonstrate
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.
Application of the second criterion
differs depending on whether it is being
applied to a first or a second extension.3
For a second extension, the EPA has
interpreted the air quality criterion of
CAA section 181(a)(5)(B) to mean that
an area’s 4th highest daily maximum 8hour value, averaged over both the
original attainment year and the first
extension year, must be no greater than
0.070 ppm.4
We evaluated the information
submitted by the Utah Division of Air
Quality (UDAQ) and proposed to
determine that the area met the two
necessary statutory criteria for the
second 1-year extension under CAA
section 181(a)(5) and 40 CFR
3 See 40 CFR 51.1307 (pertaining to determining
eligibility under CAA section 181(a)(5)(B) for
attainment date extensions for the 2015 ozone
NAAQS).
4 See id. As of October 31, 2024, the Uinta Basin
area’s certified 2020 and 2021 ozone data show that
the maximum two-year average design value for
2020–2021 is 0.069 ppm. This is based on 2020 and
2021 ozone values at the two key monitors in the
region (AQS Site 490472002, which had fourth
highest daily maximum 8-hour value for 2020 at
0.066 ppm, and AQS Site 490472003, which had
fourth highest daily maximum 8-hour value for
2021 at 0.072 ppm, which averaged is 0.069 ppm.).
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51.1307(a)(2). We stated that no other
facts or circumstances compelled the
EPA Administrator to consider
information beyond the statutory
criteria (see 89 FR 25223, 25226 (Apr.
10, 2024)). But we also explicitly asked
the public to weigh in on the EPA’s
findings: ‘‘[t]he EPA solicits comments
on this proposal to grant the requested
second 1-year attainment date extension
. . . and whether there are any
particular circumstances . . . that the
EPA should consider before granting the
request.’’ Id. We still conclude that the
area met the two minimum statutory
criteria, but after considering public
comments received, air quality data,
potential impacts on populations in the
nonattainment area, and other relevant
factors, EPA is exercising its discretion
not to grant the request.
An exercise of discretion is involved
in denying or granting an ozone
attainment date extension, once the two
minimum statutory criteria are met. See,
e.g., New York v. EPA, 921 F.3d 257,
298 (D.C. Cir. 2019) (internal citations
omitted) (finding under a similarly
constructed CAA provision 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’’). 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
two 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-andcapricious 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
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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 5 and in part D more
generally.6 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
toward attainment as expeditiously as
practicable but by no later than the
maximum attainment dates prescribed
by the Act.
We are denying this extension after
evaluating and considering the public
comments received and carefully
reviewing the area’s air quality data. We
conclude that it is appropriate to
exercise our discretion to deny the
extension to ensure the expeditious
attainment of the NAAQS in the Uinta
Basin, and that granting the State’s and
Tribe’s request for a second 1-year
extension and finding that the area
attained by the extended Marginal
attainment date would potentially delay
needed improvement of the area’s air
quality and protection of human health
and the environment. As noted in the
proposal, we are encouraged by the
progress of emissions reductions in the
area. However, after reviewing the
public comments on the proposal, we
agree with commenters that recent air
quality concentrations indicate that
continued application of the planning
requirements of subpart 2 of the CAA,
which are designed to achieve
attainment of the ozone NAAQS, would
help ensure that those reductions, along
with other reductions if they are
determined to be necessary, result in
attainment of the NAAQS.
As discussed in further detail in the
Response to Comments document,
5 CAA
section 181(a)(1).
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 attainment
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).
6 See,
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101485
monitoring values do show an overall
trend towards attainment. But we also
recognize the importance and
significance of the high ozone levels
recorded in 2023. The Uinta Basin is
quite unusual among ozone
nonattainment areas, in that the area has
elevated terrain surrounding a low
basin, and in that the highest ozone
levels tend to occur during the winter
months. Specifically, when strong and
persistent temperature inversions form
over snow-covered ground in the Uinta
Basin, this results in a stable
atmosphere which traps emissions and
allows them to accumulate and react
with sunlight to form ozone.7
Additionally, because sunlight reflects
off snow, under these conditions there
is even higher reactivity and thus higher
ozone levels. Conversely, in years
without these meteorological conditions
(such as 2020 and 2021), local
anthropogenic emissions typically will
not create high wintertime ozone
concentrations. Therefore, EPA is
concerned that it remains probable that
the area will continue to experience
high ozone levels in years where these
meteorological conditions are met.
Granting the extension and
determining that the area attained by its
attainment date would mean that the
Uinta Basin would remain in Marginal
nonattainment, even though the area has
experienced significant violations of the
NAAQS after the attainment date and
likely will do so in the future if the same
meteorological conditions reoccur in
future winters. Those future
meteorological conditions could result
in similar violations of the ozone
NAAQS again, because none of the
specific mechanisms and controls in
part D and subpart 2, which require that
emission reductions result in
attainment, would apply to the area. For
example, while Marginal nonattainment
areas are subject to requirements such as
periodic inventories and nonattainment
new source review (NNSR) permitting,
the vital nonattainment planning
requirements that result in imposition of
controls and actual emission reductions,
such as reasonable further progress,
attainment demonstration controls and
modeling, and reasonable available
control technology (RACT), apply only
to areas classified as Moderate and
above. Therefore, if EPA were to finalize
its proposed approval of Utah’s request
for an extension and determine that the
area attained by its Marginal area
7 See Regulatory Impact Analysis (RIA) for the
U&O O&NG FIP for a more detailed discussion of
winter ozone. This can be viewed in Docket ID No.
EPA–R08–OAR–2015–0709 at https://
regulations.gov/document/EPA-R08-OAR-20150709-0260.
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attainment date, the area could continue
violating the 2015 ozone NAAQS
indefinitely without being subject to any
of the CAA’s attainment planning
requirements and consequences that
were designed to ensure that
nonattainment areas progress to
attainment. Timely attainment of the
ozone NAAQS also serves to ensure that
communities in the Uinta Basin are not
exposed to disproportionate health and
environmental impacts.
Accordingly, we are not finalizing the
action as proposed, and are instead
denying the request for a second
extension. Further, we are determining
that the area failed to attain by the
Marginal attainment date of August 3,
2022. These final actions are within the
scope of our proposed action. See
Arizona Pub. Serv. Co. v. EPA, 211 F.3d
1280, 1299 (D.C. Cir. 2000) (‘‘[T]he final
rule was not wholly unrelated or
surprisingly distant from what EPA
initially suggested. In first proposing
that Tribes would have to meet the
‘same requirements’ as states, EPA
effectively raised the question as to
whether this made sense.’’); Final rule,
Denial of Request for Extension of
Attainment Date for 1997 PM2.5 NAAQS;
California; San Joaquin Valley Serious
Nonattainment Area, 81 FR 69396,
69400 (Oct. 2, 2016) (‘‘Implicit in any
such proposal to grant an extension
requested by a state is the possibility
that the EPA may decide to deny the
extension, after considering public
comments.’’). For a discussion of
comments received on the proposal and
responses to those comments, please see
the Response to Comments document in
the docket for this action.
If an ozone nonattainment 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 area failed to
attain the ozone standard by the
applicable attainment date, and the area
is reclassified 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. 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 Uinta Basin Marginal
nonattainment area was February 3,
2023.
Once an area is reclassified, each state
that contains a reclassified area must
submit certain SIP revisions in
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accordance with the 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 August 3, 2024, the
Moderate area attainment date for the
2015 ozone NAAQS. Per CAA section
182(i), a state with a reclassified ozone
nonattainment area must submit the
applicable attainment plan requirements
‘‘according to the schedules prescribed
in connection with such requirements’’
in CAA section 182(b) for Moderate
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.’’ EPA will
address the SIP revision and
implementation deadlines for the Uinta
Basin in a separate rulemaking.
The above obligations of the State of
Utah do not extend to the portions of
the Uinta Basin nonattainment area
consisting of Indian country lands
within the Uintah & Ouray Reservation
of the Ute Indian Tribe.8 Section 301(d)
of the CAA authorizes the EPA to treat
Indian Tribes in the same manner as
states for purposes of implementing the
CAA over their reservations or other
areas within their jurisdiction, and
directs the EPA to promulgate
regulations specifying those provisions
of the CAA for which such treatment is
appropriate.9 Section 301(d) also
authorizes the EPA, when the EPA
determines that the treatment of Indian
Tribes in the same manner as states is
8 Okla. Dep’t of Envtl. Quality v. EPA, 740 F.3d
185, 194 (D.C. Cir. 2014) (For purposes of a Clean
Air Act SIP, ‘‘[a] state therefore has regulatory
jurisdiction within its geographic boundaries except
where a Tribe has a reservation. . . .’’). The Uintah
& Ouray Reservation’s boundaries have been
addressed and explained in a series of federal court
decisions. Consistent with those decisions, the EPA
considers all lands within the U&O Reservation’s
boundaries to be ‘‘Indian country’’ as defined in 18
U.S.C. 1151, subject to federal court decisions
holding that specified Congressional acts removed
certain lands from Indian country status. See Ute
Indian Tribe v. Utah, 521 F. Supp. 1072 (D. Utah
1981); Ute Indian Tribe v. Utah, 716 F.2d 1298
(10th Cir. 1983); Ute Indian Tribe v. Utah, 773 F.2d
1087 (10th Cir. 1985) (en banc), cert. denied, 479
U.S. 994 (1986); Hagen v. Utah, 510 U.S. 399
(1994); Ute Indian Tribe v. Utah, 935 F. Supp. 1473
(D. Utah 1996); Ute Indian Tribe v. Utah, 114 F.3d
1513 (10th Cir. 1997), cert. denied, 522 U.S. 1107
(1998); Ute Indian Tribe v. Utah, 790 F.3d 1000
(10th Cir. 2015), cert. denied, 136 S. Ct. 1451
(2016); Ute Indian Tribe v. Myton, 835 F.3d 1255
(10th Cir. 2016), cert. denied, 582 U.S. 952 (2017);
Hackford v. Utah, 845 F.3d 1325, 1327 (10th Cir.),
cert. denied, 138 S. Ct. 206 (2017).
9 42 U.S.C. 7601(d)(1) and (2); see 63 FR 7254–
57 (Feb. 12, 1998) (explaining that CAA section
301(d) includes a delegation of authority from
Congress to eligible Indian Tribes to implement
CAA programs over all air resources within the
exterior boundaries of their Reservations).
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inappropriate or administratively
infeasible, to provide by regulation
other means by which the EPA will
directly administer the CAA.10
EPA regulations promulgated under
this authority provide a process for
interested Tribes to seek treatment in a
similar manner as a state (TAS) for all
CAA purposes except for a specified list
of exceptions.11 In addition, these
regulations include a provision
requiring the EPA to ‘‘promulgate
without unreasonable delay such
Federal implementation plan provisions
as are necessary or appropriate to
protect air quality,’’ unless a complete
CAA Tribal Implementation Plan (TIP)
is submitted or approved.12 The Ute
Indian Tribe has not sought TAS status
for the purpose of submitting or
developing a TIP for the portion of the
nonattainment area consisting of Indian
country lands within its reservation.
Accordingly, the EPA intends to address
attainment planning obligations for the
Indian country portions of the Uintah &
Ouray Reservation within the Uinta
Basin nonattainment area through one
or more separate rulemaking actions, in
accordance with the EPA’s authority
and responsibility to protect air quality
in Indian country under section
301(d)(4) of the CAA and 40 CFR 49.11.
IV. How does EPA determine whether
an area has attained the standard?
The level of the 2015 ozone NAAQS
is 0.070 ppm.13 Under EPA regulations
at 40 CFR part 50, appendix U, the 2015
ozone NAAQS is attained at a site when
the 3-year average of the annual fourth
highest daily maximum 8-hour average
ambient ozone concentration (i.e., the
DV) does not exceed 0.070 ppm. When
the DV does not exceed 0.070 ppm at
each ambient air quality monitoring site
within the area, the area is deemed to
be attaining the ozone NAAQS. Each
area’s DV is determined by the highest
DV among monitors with valid DVs.14
10 42
U.S.C. 7601(d)(4).
40 CFR 49.3 (General Tribal Clean Air Act
authority), 49.4 (Clean Air Act provisions for which
it is not appropriate to treat Tribes in the same
manner as States); see generally 40 CFR part 49,
subpart A (Tribal Authority).
12 40 CFR 49.11(a).
13 See 40 CFR 50.19.
14 According to appendix U to 40 CFR part 50,
ambient monitoring sites with a DV of 0.070 ppm
or less must meet minimum data completeness
requirements in order to be considered valid. These
requirements are met for a 3-year period at a site
if daily maximum 8-hour average ozone
concentrations are available for at least 90% of the
days within the ozone monitoring season, on
average, for the 3-year period, with a minimum of
at least 75% of the days within the ozone
monitoring season in any one year. Ozone
monitoring seasons are defined for each state in
appendix D to 40 CFR part 58. DVs greater than
11 See
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The data handling convention in 40 CFR
part 50 appendix U states that
concentrations are to be reported in
ppm to the third decimal place, with
additional digits to the right being
truncated. Thus, a 3-year average ozone
concentration of 0.071 ppm is greater
than 0.070 ppm and would exceed the
standard, but a 3-year average ozone
concentration of 0.0709 ppm is
truncated to 0.070 ppm and attains the
2015 ozone NAAQS. The EPA’s
determination of whether the Uinta
Basin attained the standard is based on
hourly ozone concentration data for
calendar years 2019, 2020, and 2021
that have been collected and qualityassured in accordance with 40 CFR part
58 and reported to the EPA’s Air Quality
System (AQS) database.15
V. What action is EPA taking?
After evaluating the comments
received, as explained in detail in the
Response to Comments document in the
docket for this action, EPA is denying
the request for a second extension of the
attainment date for the area.
101487
Further, the EPA is determining,
pursuant to CAA section 181(b)(2), that
the Uinta Basin nonattainment area
failed to attain the 2015 ozone NAAQS
by the attainment date of August 3,
2022. As shown in table 1 at least one
monitor in this area had a 2019–2021
DV greater than 0.070 ppm. Table 1
shows the annual fourth highest daily
maximum 8-hour average ozone
concentration and 2019–2021 DV for
each monitor in the Uinta Basin areas.
TABLE 1—2019–2021 FOURTH HIGHEST DAILY MAXIMUM 8-HOUR AVERAGE OZONE CONCENTRATIONS AND DESIGN
VALUES AT ALL MONITORS IN THE UINTA BASIN AREA
AQS site ID
Fourth highest daily maximum 8-hour average
ozone concentration
(ppm)
Local site name
2019
490130002
490137011
490471002
490471004
490472002
490472003
490477022
......................................
......................................
......................................
......................................
......................................
......................................
......................................
Roosevelt ........................................
Myton ..............................................
Dinosaur National Monument .........
Vernal .............................................
Redwash .........................................
Ouray ..............................................
Whiterocks ......................................
Because of the area’s failure to attain
by its attainment date, on the effective
date of this final action this area will be
reclassified by operation of law to
Moderate nonattainment for the 2015
ozone NAAQS. Once reclassified as
Moderate, this area will be required to
attain the standard ‘‘as expeditiously as
practicable’’ but no later than 6 years
after the initial designation as
nonattainment, which in this case
would be no later than August 3, 2024.
EPA will address whether the area
attained the standard by the Moderate
date, and any related consequences, in
a future action.
B. Paperwork Reduction Act (PRA)
This rule does not impose an
information collection burden under the
provisions of the PRA of 1995 (44 U.S.C.
3501 et seq.). This action does not
contain any information collection
activities and serves only to make a final
determination that the Uinta Basin
nonattainment area failed to attain the
2015 ozone standards by the August 3,
2022, attainment date, as a result of
which the area will be reclassified as
Moderate nonattainment for the 2015
ozone standards by operation of law
upon the effective date of this final
reclassification action.
This action is not a ‘‘significant
regulatory action’’ under the terms of
Executive Order 12866 (58 FR 51735,
October 4, 1993) and is therefore not
subject to review under Executive Order
14094 (88 FR 21879, April 11, 2023).
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have
a significant economic impact on a
substantial number of small entities
under the RFA (5 U.S.C. 601 et seq.).
This action will not impose any
requirements on small entities. The
determination of failure to attain the
2015 ozone standards and resulting
reclassifications, do not in and of
themselves create any new requirements
beyond what is mandated by the CAA.
This final action would require the state
to adopt and submit SIP revisions to
0.070 ppm are considered to be valid regardless of
the data completeness.
15 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
VI. Statutory and Executive Order
Reviews
A. Executive Order 12866: Regulatory
Planning and Review, and Executive
Order 14094: Modernizing Regulatory
Review
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0.087
0.079
0.070
0.065
0.074
0.098
0.067
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2020
2019–2021 DV
(ppm)
2021
0.063
0.064
0.063
0.063
0.066
0.065
0.065
0.072
0.069
0.068
0.068
0.071
0.072
0.068
0.074
0.070
0.067
0.065
0.070
0.078
0.066
satisfy CAA requirements and would
not itself directly regulate any small
entities.
D. Unfunded Mandates Reform Act
(UMRA)
This action does not contain any
unfunded mandate as described in
UMRA, 2 U.S.C. 1531–1538 and does
not significantly or uniquely affect small
governments. The action imposes no
enforceable duty on any state, local or
Tribal governments or the private sector.
E. Executive Order 13132: Federalism
This action does not have federalism
implications. It will not have substantial
direct effects on the states, on the
relationship between the national
government and the states, or on the
distribution of power and
responsibilities among the various
levels of government. The division of
responsibility between the Federal
government and the states for purposes
of implementing the NAAQS is
established under the CAA.
designations, (3) evaluate SIPs for non-attainment
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.
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F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This action has Tribal implications.
However, it will neither impose
substantial direct compliance costs on
federally recognized Tribal
governments, nor preempt Tribal law.
The EPA has identified Tribal areas
within the nonattainment area covered
by this final rule that would be
potentially affected by this rulemaking.
Specifically, the Ute Indian Tribe of the
Uintah & Ouray Reservation in the Uinta
Basin, Utah ozone nonattainment area.
The EPA has concluded that the final
rule may have Tribal implications for
this Tribe for the purposes of Executive
Order 13175 but would not impose
substantial direct costs upon the Tribe,
nor would it preempt Tribal law. As
noted previously, a Tribe that is part of
an area that is reclassified from
Marginal to Moderate nonattainment is
not required to submit a TIP revision to
address new Moderate area
requirements. However, when the EPA
finalizes the determinations of failure to
attain proposed in this action, the NNSR
major source threshold and offset
requirements will change for stationary
sources seeking preconstruction permits
in any nonattainment areas newly
reclassified as Moderate.
The EPA will communicate with the
potentially affected Tribe located within
the boundary of the nonattainment area
addressed in this final rule, including
offering government-to-government
consultation, as appropriate.
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G. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
EPA interprets Executive Order 13045
(62 FR 19885, April 23, 1997) as
applying to those regulatory actions that
concern environmental health or safety
risks that EPA has reason to believe may
disproportionately affect children, per
the definition of ‘‘covered regulatory
action’’ in section 2–202 of the
Executive Order. This action is not
subject to Executive Order 13045
because it does not establish an
environmental standard intended to
mitigate health or safety risks.
H. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution, or Use
This action is not subject to Executive
Order 13211 (66 FR 28355, May 22,
2001) because it is not a significant
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16:32 Dec 13, 2024
Jkt 265001
regulatory action under Executive Order
12866.
I. National Technology Transfer and
Advancement Act (NTTAA)
This rulemaking does not involve
technical standards. Therefore, EPA is
not considering the use of any voluntary
consensus standards.
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order 12898 (Federal
Actions to Address Environmental
Justice in Minority Populations and
Low-Income Populations, 59 FR 7629,
February 16, 1994) directs Federal
agencies to identify and address
‘‘disproportionately high and adverse
human health or environmental effects’’
of their actions on communities with
environmental justice (EJ) concerns to
the greatest extent practicable and
permitted by law. EPA defines EJ 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.’’ EPA further defines the term
fair treatment to mean that ‘‘no group of
people should bear a disproportionate
burden of environmental harms and
risks, including those resulting from the
negative environmental consequences of
industrial, governmental, and
commercial operations or programs and
policies.’’
In the proposed rule we explained
that we had considered specific
information related to EJ, consisting of
an EJSCREEN analysis for Duchesne and
Uintah Counties, along with the ozone
design values for the area. As explained
in our Response to Comments
document, we received additional EJrelated information during the public
comment period and have considered
that information in taking this final
action. Due to the nature of the action
being taken here, this action is expected
to have a neutral to positive impact on
the air quality of the affected area. Our
final action is consistent with the stated
goal of E.O. 12898 of achieving
environmental justice for communities
with EJ concerns.
K. Congressional Review Act
This rule is exempt from the
Congressional Review Act (CRA)
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because it is a rule of particular
applicability. The rule makes factual
determinations for an identified entity
(Uinta Basin, UT area), based on facts
and circumstances specific to that
entity. The determinations of attainment
and failure to attain the 2015 ozone
NAAQS do not in themselves create any
new requirements beyond what is
mandated by the CAA.
L. Judicial Review
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by February 14, 2025. Filing a
petition for reconsideration by the
Administrator of this action does not
affect the finality of this action for the
purposes of judicial review nor does it
extend the time within which a petition
for judicial review may be filed and
shall not postpone the effectiveness of
this action. This action may not be
challenged later in proceedings to
enforce its requirements (see section
307(b)(2)).
List of Subjects in 40 CFR Part 81
Environmental protection, Air
pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping
requirements, Volatile organic
compounds.
Dated: December 6, 2024.
KC Becker,
Regional Administrator, Region 8.
For the reasons stated in the preamble
the Environmental Protection Agency
amends title 40 CFR part 81 as follows:
PART 81—DESIGNATION OF AREAS
FOR AIR QUALITY PLANNING
PURPOSES
1. The authority citation for part 81
continues to read as follows:
■
Authority: 42 U.S.C. 7401, et seq.
Subpart C—Section 107 Attainment
Status Designations
2. In § 81.345, the table titled ‘‘Utah—
2015 8-Hour Ozone NAAQS [Primary
and Secondary]’’ is amended by revising
the entry ‘‘Uinta Basin, UT’’ to read as
follows:
■
§ 81.345
*
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Utah.
*
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Federal Register / Vol. 89, No. 241 / Monday, December 16, 2024 / Rules and Regulations
UTAH—2015 8-HOUR OZONE NAAQS
[Primary and secondary]
Designation
Classification
Designated area 1
Date 2
*
*
*
*
Uinta Basin, UT 3 ....................................................................................... ........................
Duchesne County (part): All land in Duchesne County below a contiguous external perimeter of 6,250 ft. in elevation. All areas within that contiguous external perimeter are included in the nonattainment area—including mesas and buttes which may have
an elevation greater than 6,250 ft., but which are surrounded on
all sides by land lower than 6,250 ft. Additionally, areas that fall
outside the 6,250 ft. contiguous external perimeter that have elevations less than 6,250 ft. are excluded from the nonattainment
area. The boundary is defined by the 6,250 ft. contour line created from the 2013 USGS 10-meter seamless Digital Elevation
Model (USGS NED n41w1101/3 arc-second 2013 1 × 1 degree
IMG).
Uintah County (part): All land in Uintah County below a contiguous
external perimeter of 6,250 ft. in elevation. All areas within that
contiguous external perimeter are included in the nonattainment
area—including mesas and buttes which may have an elevation
greater than 6,250 ft., but which are surrounded on all sides by
land lower than 6,250 ft. Additionally, areas that fall outside the
6,250 ft. contiguous external perimeter that have elevations less
than 6,250 ft. are excluded from the nonattainment area. The
boundary is defined by the 6,250 ft. contour line created from the
2013 USGS 10-meter seamless Digital Elevation Model (USGS
NED n41w1101/3 arc-second 2013 1 x 1 degree IMG).
*
*
*
*
Type
Date 2
*
Nonattainment
*
January 15, 2025 ...
*
Type
*
Moderate.
*
*
1 Includes
any Indian country in each county or area, unless otherwise specified. EPA is not determining the boundaries of any area of Indian
country in this table, including any area of Indian country located in the larger designation area. The inclusion of any Indian country in the designation area is not a determination that the state has regulatory authority under the Clean Air Act for such Indian country.
2 This date is August 3, 2018, unless otherwise noted.
3 The EPA is designating portions of the Uinta Basin as ‘‘nonattainment,’’ including both Tribal and State lands. The Ute Indian Tribe has air
quality planning jurisdiction in the areas of Indian country included in the Uinta Basin nonattainment area, while the State of Utah has air quality
planning jurisdiction in the areas of State land included in the Uinta Basin nonattainment area.
*
*
*
*
*
[FR Doc. 2024–29246 Filed 12–13–24; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 745
[EPA–HQ–OPPT–2023–0231; FRL–8524–03–
OCSPP]
RIN 2070–AK91
Reconsideration of the Dust-Lead
Hazard Standards and Dust-Lead PostAbatement Clearance Levels;
Correction
Environmental Protection
Agency (EPA).
ACTION: Final rule; correction.
lotter on DSK11XQN23PROD with RULES1
AGENCY:
The Environmental Protection
Agency (EPA) is making corrections to
a final rule that appeared in the Federal
Register of November 12, 2024, that
finalized several revisions to EPA’s
lead-based paint (LBP) regulations.
SUMMARY:
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16:32 Dec 13, 2024
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Subsequent to publication, the Office of
the Federal Register (OFR) informed the
Agency that there were errors in the
amendatory instructions that describe
specific revisions for two sections of the
regulation. The corrections to the
amendatory instructions will allow for
the proper revisions to be incorporated
into the Code of Federal Regulations
(CFR).
DATES: This final rule correction is
effective January 13, 2025.
ADDRESSES: The docket for this action,
identified by docket identification (ID)
number EPA–HQ–OPPT–2023–0231, is
available online at https://
www.regulations.gov. Additional
information about dockets generally,
along with instructions for visiting the
docket in-person, is available at https://
www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT:
For technical information: Claire
Brisse, Existing Chemicals Risk
Management Division (7404M), Office of
Pollution Prevention and Toxics,
Environmental Protection Agency, 1200
PO 00000
Frm 00027
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Pennsylvania Ave. NW, Washington, DC
20460–0001; telephone number: (202)
564–9004; email address: brisse.claire@
epa.gov.
For general information on lead: The
National Lead Information Center, 422
South Clinton Avenue, Rochester, NY
14620; telephone number: (800) 424–
LEAD [5323]; online form: https://
www.epa.gov/lead/forms/lead-hotlinenational-lead-information-center.
For general information on TSCA: The
TSCA Hotline, ABVI-Goodwill, 422
South Clinton Ave., Rochester, NY
14620; telephone number: (202) 554–
1404; email address: TSCA-Hotline@
epa.gov.
For hearing- or speech-impaired
assistance: Persons may reach the
telephone numbers for the contacts
through TTY by calling the toll-free
Federal Communications Commission’s
Telecommunications Relay Service at
711.
EPA is
correcting the final rule that published
in the Federal Register of November 12,
SUPPLEMENTARY INFORMATION:
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Agencies
[Federal Register Volume 89, Number 241 (Monday, December 16, 2024)]
[Rules and Regulations]
[Pages 101483-101489]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-29246]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[EPA-R08-OAR-2024-0001; FRL-12469-01-R8]
Denial of Request for Attainment Date Extension, Finding of
Failure To Attain, and Reclassification of an Area in Utah as Moderate
for the 2015 Ozone National Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is denying a request
by the State of Utah and the Ute Indian Tribe for an extension of the
attainment date for the Uinta Basin, Utah Marginal nonattainment area
under the 2015 ozone National Ambient Air Quality Standards (NAAQS). In
addition, we are determining that the area did not attain the standard
by the applicable attainment date, and accordingly that the area will
be reclassified by operation of law to ``Moderate'' nonattainment for
the 2015 ozone NAAQS on the effective date of this final rule. With
respect to the Uinta Basin area, this action fulfills the EPA's
obligation under the Clean Air Act (CAA) to determine whether ozone
nonattainment areas attained the NAAQS by the Marginal area 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.
DATES: This rule is effective on January 15, 2025.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R08-OAR-2024-0001. All documents in the docket are listed on
the https://www.regulations.gov website. Although listed in the index,
some information is not publicly available, e.g., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the internet and will be publicly available only in hard
copy form. Publicly available docket materials are available through
https://www.regulations.gov, or please contact the person identified in
the FOR FURTHER INFORMATION CONTACT section for additional availability
information.
FOR FURTHER INFORMATION CONTACT: Amanda Brimmer, Air and Radiation
Division, EPA, Region 8, Mailcode 8ARD-AQ-R, 1595 Wynkoop Street,
Denver, Colorado 80202-1129, telephone number: (303) 312-6323, email
address: [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' or ``our'' is used, we mean the EPA.
I. Overview of Action
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 CAA section 181(b)(2)). The EPA's determination
of attainment for the 2015 ozone NAAQS is based on a nonattainment
area's design value (DV) as of the attainment date.\1\
---------------------------------------------------------------------------
\1\ 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 data handling
conventions for calculating DVs for the 2015 ozone NAAQS are
specified in appendix U to 40 CFR part 50. The DV for the 2015 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 DV for an area is the
highest DV among the individual monitoring sites located in the
area.
---------------------------------------------------------------------------
The 2015 ozone NAAQS is met at a monitoring site when the DV does
not exceed 0.070 parts per million (ppm). This action addresses the
Uinta Basin area in Utah, which includes portions of Duchesne and
Uintah Counties. The Uinta Basin was initially classified as Marginal
for the 2015 ozone NAAQS and received a 1-year extension of the
attainment date in 2022, making the Marginal area attainment date for
this area August 3, 2022. As further explained in the Response to
Comment document in the docket, in this action we are denying a request
for a second 1-year extension. Accordingly, the applicable attainment
date for the area remains August 3, 2022. Because DVs are based on the
three most recent, complete calendar years of data preceding the
attainment date, attainment must occur no later than December 31 of the
year before the attainment date (i.e., December 31, 2021, in the case
of the Uinta Basin Marginal nonattainment area for the 2015 ozone
NAAQS). Accordingly, the EPA's determination for this area is
[[Page 101484]]
based upon the complete, quality-assured, and certified ozone
monitoring data from calendar years 2019, 2020, and 2021.
The EPA is finding that the Uinta Basin Marginal area did not
attain by the attainment date, because the area's 2019-2021 DV was
0.078 ppm, which is greater than 0.070 ppm. Under CAA section
181(b)(2)(A), the effect of this determination is that this area will
be reclassified by operation of law as Moderate on the effective date
of this final rule. The reclassified area will then be subject to the
Moderate area requirement to attain the 2015 ozone NAAQS as
expeditiously as practicable, but not later than August 3, 2024.
As a result of the area's reclassification as Moderate, Utah must
submit to the EPA the State Implementation Plan (SIP) revisions for
this area that satisfy the statutory and regulatory requirements
applicable to Moderate areas established in CAA section 182(b) and in
the 2015 Ozone NAAQS SIP Requirements Rule (see 83 FR 62998, December
6, 2018). The EPA will be establishing deadlines for the Uinta Basin
area for submitting SIP revisions and for planning requirements on
Indian Country in a separate action.
II. What is the background for this action?
On October 26, 2015, the EPA issued its final action to revise the
NAAQS for ozone to establish a new 8-hour standard (see 80 FR 65452,
October 26, 2015). In that action, the EPA promulgated identical
tighter primary and secondary ozone standards, designed to protect
public health and welfare, that specified an 8-hour ozone level of
0.070 ppm. Specifically, the standards provide that the 3-year average
of the annual fourth highest daily maximum 8-hour average ozone
concentration may not exceed 0.070 ppm.
Effective August 3, 2018, the EPA designated 52 areas throughout
the country as nonattainment for the 2015 ozone NAAQS (see 83 FR 25776,
June 4, 2018). In a separate action, the EPA assigned classification
thresholds and attainment dates based on the severity of an area's
ozone problem, determined by the area's DV (see 83 FR 10376, May 8,
2018). Consistent with CAA section 181(a), the EPA established the
attainment date for Marginal, Moderate, and Serious nonattainment areas
as 3 years, 6 years, and 9 years, respectively, from the effective date
of the final designations. Thus, the attainment date for Marginal
nonattainment areas for the 2015 ozone NAAQS was August 3, 2021; the
attainment date for Moderate areas was August 3, 2024; and the
attainment date for Serious areas is August 3, 2027. On October 7, 2022
(87 FR 60897), the EPA determined that 22 areas, including the Uinta
Basin area, did not attain the standards by the Marginal attainment
date. All of these areas except the Uinta Basin were reclassified as
Moderate by operation of law. As to the Uinta Basin, however, EPA
granted a 1-year extension of the attainment date, to August 3, 2022.
The State of Utah requested a second 1-year extension of the
attainment date for the Uinta Basin, to August 3, 2023. On December 20,
2022, the Ute Indian Tribe also requested a second one-year
extension.\2\ Granting this extension would make the relevant years for
evaluating attainment 2020-2022. On April 10, 2024 (89 FR 25223), EPA
proposed to grant the request for a second extension, and to determine
that the area attained by this attainment date based on data from 2020-
2022. EPA took public comment on this proposal through May 10, 2024.
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\2\ See letter dated December 20, 2022, from Ute Indian Tribe
Chairman Shaun Chapoose to U.S. EPA Region 8 Regional Administrator
KC Becker.
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III. What is the statutory authority for this action?
The statutory authority for this determination is provided by the
CAA, as amended (42 U.S.C. 7401 et seq.), including sections 107, 181
and 182.
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 each 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
emission 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 are
``Marginal,'' ``Moderate,'' ``Serious,'' ``Severe,'' and ``Extreme,''
in order of stringency. CAA section 182 provides the specific
attainment planning and additional requirements that apply to each
ozone nonattainment area based on its classification.
Section 181(b)(2)(A) of the CAA provides that within 6 months
following the applicable attainment date, the EPA must determine
whether an ozone nonattainment area attained the ozone standard based
on the area's DV as of that date. Section 181(a)(5) of the CAA provides
the EPA the discretion (i.e., ``the Administrator may'') to extend an
area's applicable attainment date by one 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 at 40 CFR 51.1307. No more
than two one-year extensions may be issued for a single nonattainment
area. CAA section 181(a)(5).
With respect to the first criterion, the EPA interprets the
provision as having been satisfied if a state can demonstrate 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.
Application of the second criterion differs depending on whether it
is being applied to a first or a second extension.\3\ For a second
extension, the EPA has interpreted the air quality criterion of CAA
section 181(a)(5)(B) to mean that an area's 4th highest daily maximum
8-hour value, averaged over both the original attainment year and the
first extension year, must be no greater than 0.070 ppm.\4\
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\3\ See 40 CFR 51.1307 (pertaining to determining eligibility
under CAA section 181(a)(5)(B) for attainment date extensions for
the 2015 ozone NAAQS).
\4\ See id. As of October 31, 2024, the Uinta Basin area's
certified 2020 and 2021 ozone data show that the maximum two-year
average design value for 2020-2021 is 0.069 ppm. This is based on
2020 and 2021 ozone values at the two key monitors in the region
(AQS Site 490472002, which had fourth highest daily maximum 8-hour
value for 2020 at 0.066 ppm, and AQS Site 490472003, which had
fourth highest daily maximum 8-hour value for 2021 at 0.072 ppm,
which averaged is 0.069 ppm.).
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We evaluated the information submitted by the Utah Division of Air
Quality (UDAQ) and proposed to determine that the area met the two
necessary statutory criteria for the second 1-year extension under CAA
section 181(a)(5) and 40 CFR
[[Page 101485]]
51.1307(a)(2). We stated that no other facts or circumstances compelled
the EPA Administrator to consider information beyond the statutory
criteria (see 89 FR 25223, 25226 (Apr. 10, 2024)). But we also
explicitly asked the public to weigh in on the EPA's findings: ``[t]he
EPA solicits comments on this proposal to grant the requested second 1-
year attainment date extension . . . and whether there are any
particular circumstances . . . that the EPA should consider before
granting the request.'' Id. We still conclude that the area met the two
minimum statutory criteria, but after considering public comments
received, air quality data, potential impacts on populations in the
nonattainment area, and other relevant factors, EPA is exercising its
discretion not to grant the request.
An exercise of discretion is involved in denying or granting an
ozone attainment date extension, once the two minimum statutory
criteria are met. See, e.g., New York v. EPA, 921 F.3d 257, 298 (D.C.
Cir. 2019) (internal citations omitted) (finding under a similarly
constructed CAA provision 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''). 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 two 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 \5\
and in part D more generally.\6\ 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 toward attainment as
expeditiously as practicable but by no later than the maximum
attainment dates prescribed by the Act.
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\5\ CAA section 181(a)(1).
\6\ 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 attainment 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).
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We are denying this extension after evaluating and considering the
public comments received and carefully reviewing the area's air quality
data. We conclude that it is appropriate to exercise our discretion to
deny the extension to ensure the expeditious attainment of the NAAQS in
the Uinta Basin, and that granting the State's and Tribe's request for
a second 1-year extension and finding that the area attained by the
extended Marginal attainment date would potentially delay needed
improvement of the area's air quality and protection of human health
and the environment. As noted in the proposal, we are encouraged by the
progress of emissions reductions in the area. However, after reviewing
the public comments on the proposal, we agree with commenters that
recent air quality concentrations indicate that continued application
of the planning requirements of subpart 2 of the CAA, which are
designed to achieve attainment of the ozone NAAQS, would help ensure
that those reductions, along with other reductions if they are
determined to be necessary, result in attainment of the NAAQS.
As discussed in further detail in the Response to Comments
document, monitoring values do show an overall trend towards
attainment. But we also recognize the importance and significance of
the high ozone levels recorded in 2023. The Uinta Basin is quite
unusual among ozone nonattainment areas, in that the area has elevated
terrain surrounding a low basin, and in that the highest ozone levels
tend to occur during the winter months. Specifically, when strong and
persistent temperature inversions form over snow-covered ground in the
Uinta Basin, this results in a stable atmosphere which traps emissions
and allows them to accumulate and react with sunlight to form ozone.\7\
Additionally, because sunlight reflects off snow, under these
conditions there is even higher reactivity and thus higher ozone
levels. Conversely, in years without these meteorological conditions
(such as 2020 and 2021), local anthropogenic emissions typically will
not create high wintertime ozone concentrations. Therefore, EPA is
concerned that it remains probable that the area will continue to
experience high ozone levels in years where these meteorological
conditions are met.
---------------------------------------------------------------------------
\7\ See Regulatory Impact Analysis (RIA) for the U&O O&NG FIP
for a more detailed discussion of winter ozone. This can be viewed
in Docket ID No. EPA-R08-OAR-2015-0709 at https://regulations.gov/document/EPA-R08-OAR-2015-0709-0260.
---------------------------------------------------------------------------
Granting the extension and determining that the area attained by
its attainment date would mean that the Uinta Basin would remain in
Marginal nonattainment, even though the area has experienced
significant violations of the NAAQS after the attainment date and
likely will do so in the future if the same meteorological conditions
reoccur in future winters. Those future meteorological conditions could
result in similar violations of the ozone NAAQS again, because none of
the specific mechanisms and controls in part D and subpart 2, which
require that emission reductions result in attainment, would apply to
the area. For example, while Marginal nonattainment areas are subject
to requirements such as periodic inventories and nonattainment new
source review (NNSR) permitting, the vital nonattainment planning
requirements that result in imposition of controls and actual emission
reductions, such as reasonable further progress, attainment
demonstration controls and modeling, and reasonable available control
technology (RACT), apply only to areas classified as Moderate and
above. Therefore, if EPA were to finalize its proposed approval of
Utah's request for an extension and determine that the area attained by
its Marginal area
[[Page 101486]]
attainment date, the area could continue violating the 2015 ozone NAAQS
indefinitely without being subject to any of the CAA's attainment
planning requirements and consequences that were designed to ensure
that nonattainment areas progress to attainment. Timely attainment of
the ozone NAAQS also serves to ensure that communities in the Uinta
Basin are not exposed to disproportionate health and environmental
impacts.
Accordingly, we are not finalizing the action as proposed, and are
instead denying the request for a second extension. Further, we are
determining that the area failed to attain by the Marginal attainment
date of August 3, 2022. These final actions are within the scope of our
proposed action. See Arizona Pub. Serv. Co. v. EPA, 211 F.3d 1280, 1299
(D.C. Cir. 2000) (``[T]he final rule was not wholly unrelated or
surprisingly distant from what EPA initially suggested. In first
proposing that Tribes would have to meet the `same requirements' as
states, EPA effectively raised the question as to whether this made
sense.''); Final rule, Denial of Request for Extension of Attainment
Date for 1997 PM2.5 NAAQS; California; San Joaquin Valley
Serious Nonattainment Area, 81 FR 69396, 69400 (Oct. 2, 2016)
(``Implicit in any such proposal to grant an extension requested by a
state is the possibility that the EPA may decide to deny the extension,
after considering public comments.''). For a discussion of comments
received on the proposal and responses to those comments, please see
the Response to Comments document in the docket for this action.
If an ozone nonattainment 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 area failed to attain the ozone standard by the
applicable attainment date, and the area is reclassified 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. 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 Uinta Basin
Marginal nonattainment area was February 3, 2023.
Once an area is reclassified, each state that contains a
reclassified area must submit certain SIP revisions in accordance with
the 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 August 3, 2024, the
Moderate area attainment date for the 2015 ozone NAAQS. Per CAA section
182(i), a state with a reclassified ozone nonattainment area must
submit the applicable attainment plan requirements ``according to the
schedules prescribed in connection with such requirements'' in CAA
section 182(b) for Moderate 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.'' EPA will address the SIP revision and implementation
deadlines for the Uinta Basin in a separate rulemaking.
The above obligations of the State of Utah do not extend to the
portions of the Uinta Basin nonattainment area consisting of Indian
country lands within the Uintah & Ouray Reservation of the Ute Indian
Tribe.\8\ Section 301(d) of the CAA authorizes the EPA to treat Indian
Tribes in the same manner as states for purposes of implementing the
CAA over their reservations or other areas within their jurisdiction,
and directs the EPA to promulgate regulations specifying those
provisions of the CAA for which such treatment is appropriate.\9\
Section 301(d) also authorizes the EPA, when the EPA determines that
the treatment of Indian Tribes in the same manner as states is
inappropriate or administratively infeasible, to provide by regulation
other means by which the EPA will directly administer the CAA.\10\
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\8\ Okla. Dep't of Envtl. Quality v. EPA, 740 F.3d 185, 194
(D.C. Cir. 2014) (For purposes of a Clean Air Act SIP, ``[a] state
therefore has regulatory jurisdiction within its geographic
boundaries except where a Tribe has a reservation. . . .''). The
Uintah & Ouray Reservation's boundaries have been addressed and
explained in a series of federal court decisions. Consistent with
those decisions, the EPA considers all lands within the U&O
Reservation's boundaries to be ``Indian country'' as defined in 18
U.S.C. 1151, subject to federal court decisions holding that
specified Congressional acts removed certain lands from Indian
country status. See Ute Indian Tribe v. Utah, 521 F. Supp. 1072 (D.
Utah 1981); Ute Indian Tribe v. Utah, 716 F.2d 1298 (10th Cir.
1983); Ute Indian Tribe v. Utah, 773 F.2d 1087 (10th Cir. 1985) (en
banc), cert. denied, 479 U.S. 994 (1986); Hagen v. Utah, 510 U.S.
399 (1994); Ute Indian Tribe v. Utah, 935 F. Supp. 1473 (D. Utah
1996); Ute Indian Tribe v. Utah, 114 F.3d 1513 (10th Cir. 1997),
cert. denied, 522 U.S. 1107 (1998); Ute Indian Tribe v. Utah, 790
F.3d 1000 (10th Cir. 2015), cert. denied, 136 S. Ct. 1451 (2016);
Ute Indian Tribe v. Myton, 835 F.3d 1255 (10th Cir. 2016), cert.
denied, 582 U.S. 952 (2017); Hackford v. Utah, 845 F.3d 1325, 1327
(10th Cir.), cert. denied, 138 S. Ct. 206 (2017).
\9\ 42 U.S.C. 7601(d)(1) and (2); see 63 FR 7254-57 (Feb. 12,
1998) (explaining that CAA section 301(d) includes a delegation of
authority from Congress to eligible Indian Tribes to implement CAA
programs over all air resources within the exterior boundaries of
their Reservations).
\10\ 42 U.S.C. 7601(d)(4).
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EPA regulations promulgated under this authority provide a process
for interested Tribes to seek treatment in a similar manner as a state
(TAS) for all CAA purposes except for a specified list of
exceptions.\11\ In addition, these regulations include a provision
requiring the EPA to ``promulgate without unreasonable delay such
Federal implementation plan provisions as are necessary or appropriate
to protect air quality,'' unless a complete CAA Tribal Implementation
Plan (TIP) is submitted or approved.\12\ The Ute Indian Tribe has not
sought TAS status for the purpose of submitting or developing a TIP for
the portion of the nonattainment area consisting of Indian country
lands within its reservation. Accordingly, the EPA intends to address
attainment planning obligations for the Indian country portions of the
Uintah & Ouray Reservation within the Uinta Basin nonattainment area
through one or more separate rulemaking actions, in accordance with the
EPA's authority and responsibility to protect air quality in Indian
country under section 301(d)(4) of the CAA and 40 CFR 49.11.
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\11\ See 40 CFR 49.3 (General Tribal Clean Air Act authority),
49.4 (Clean Air Act provisions for which it is not appropriate to
treat Tribes in the same manner as States); see generally 40 CFR
part 49, subpart A (Tribal Authority).
\12\ 40 CFR 49.11(a).
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IV. How does EPA determine whether an area has attained the standard?
The level of the 2015 ozone NAAQS is 0.070 ppm.\13\ Under EPA
regulations at 40 CFR part 50, appendix U, the 2015 ozone NAAQS is
attained at a site when the 3-year average of the annual fourth highest
daily maximum 8-hour average ambient ozone concentration (i.e., the DV)
does not exceed 0.070 ppm. When the DV does not exceed 0.070 ppm at
each ambient air quality monitoring site within the area, the area is
deemed to be attaining the ozone NAAQS. Each area's DV is determined by
the highest DV among monitors with valid DVs.\14\
[[Page 101487]]
The data handling convention in 40 CFR part 50 appendix U states that
concentrations are to be reported in ppm to the third decimal place,
with additional digits to the right being truncated. Thus, a 3-year
average ozone concentration of 0.071 ppm is greater than 0.070 ppm and
would exceed the standard, but a 3-year average ozone concentration of
0.0709 ppm is truncated to 0.070 ppm and attains the 2015 ozone NAAQS.
The EPA's determination of whether the Uinta Basin attained the
standard is based on hourly ozone concentration data for calendar years
2019, 2020, and 2021 that have been collected and quality-assured in
accordance with 40 CFR part 58 and reported to the EPA's Air Quality
System (AQS) database.\15\
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\13\ See 40 CFR 50.19.
\14\ According to appendix U to 40 CFR part 50, ambient
monitoring sites with a DV of 0.070 ppm or less must meet minimum
data completeness requirements in order to be considered valid.
These requirements are met for a 3-year period at a site if daily
maximum 8-hour average ozone concentrations are available for at
least 90% of the days within the ozone monitoring season, on
average, for the 3-year period, with a minimum of at least 75% of
the days within the ozone monitoring season in any one year. Ozone
monitoring seasons are defined for each state in appendix D to 40
CFR part 58. DVs greater than 0.070 ppm are considered to be valid
regardless of the data completeness.
\15\ 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 non-attainment 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.
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V. What action is EPA taking?
After evaluating the comments received, as explained in detail in
the Response to Comments document in the docket for this action, EPA is
denying the request for a second extension of the attainment date for
the area.
Further, the EPA is determining, pursuant to CAA section 181(b)(2),
that the Uinta Basin nonattainment area failed to attain the 2015 ozone
NAAQS by the attainment date of August 3, 2022. As shown in table 1 at
least one monitor in this area had a 2019-2021 DV greater than 0.070
ppm. Table 1 shows the annual fourth highest daily maximum 8-hour
average ozone concentration and 2019-2021 DV for each monitor in the
Uinta Basin areas.
Table 1--2019-2021 Fourth Highest Daily Maximum 8-Hour Average Ozone Concentrations and Design Values at All
Monitors in the Uinta Basin Area
----------------------------------------------------------------------------------------------------------------
Fourth highest daily maximum 8-hour average
ozone concentration (ppm) 2019-2021 DV
AQS site ID Local site name ------------------------------------------------ (ppm)
2019 2020 2021
----------------------------------------------------------------------------------------------------------------
490130002.................... Roosevelt...... 0.087 0.063 0.072 0.074
490137011.................... Myton.......... 0.079 0.064 0.069 0.070
490471002.................... Dinosaur 0.070 0.063 0.068 0.067
National
Monument.
490471004.................... Vernal......... 0.065 0.063 0.068 0.065
490472002.................... Redwash........ 0.074 0.066 0.071 0.070
490472003.................... Ouray.......... 0.098 0.065 0.072 0.078
490477022.................... Whiterocks..... 0.067 0.065 0.068 0.066
----------------------------------------------------------------------------------------------------------------
Because of the area's failure to attain by its attainment date, on
the effective date of this final action this area will be reclassified
by operation of law to Moderate nonattainment for the 2015 ozone NAAQS.
Once reclassified as Moderate, this area will be required to attain the
standard ``as expeditiously as practicable'' but no later than 6 years
after the initial designation as nonattainment, which in this case
would be no later than August 3, 2024.
EPA will address whether the area attained the standard by the
Moderate date, and any related consequences, in a future action.
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review, and Executive
Order 14094: Modernizing Regulatory Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is
therefore not subject to review under Executive Order 14094 (88 FR
21879, April 11, 2023).
B. Paperwork Reduction Act (PRA)
This rule does not impose an information collection burden under
the provisions of the PRA of 1995 (44 U.S.C. 3501 et seq.). This action
does not contain any information collection activities and serves only
to make a final determination that the Uinta Basin nonattainment area
failed to attain the 2015 ozone standards by the August 3, 2022,
attainment date, as a result of which the area will be reclassified as
Moderate nonattainment for the 2015 ozone standards by operation of law
upon the effective date of this final reclassification action.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA (5
U.S.C. 601 et seq.). This action will not impose any requirements on
small entities. The determination of failure to attain the 2015 ozone
standards and resulting reclassifications, do not in and of themselves
create any new requirements beyond what is mandated by the CAA. This
final action would require the state to adopt and submit SIP revisions
to satisfy CAA requirements and would not itself directly regulate any
small entities.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538 and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local or Tribal governments or the private sector.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government. The
division of responsibility between the Federal government and the
states for purposes of implementing the NAAQS is established under the
CAA.
[[Page 101488]]
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action has Tribal implications. However, it will neither
impose substantial direct compliance costs on federally recognized
Tribal governments, nor preempt Tribal law.
The EPA has identified Tribal areas within the nonattainment area
covered by this final rule that would be potentially affected by this
rulemaking. Specifically, the Ute Indian Tribe of the Uintah & Ouray
Reservation in the Uinta Basin, Utah ozone nonattainment area.
The EPA has concluded that the final rule may have Tribal
implications for this Tribe for the purposes of Executive Order 13175
but would not impose substantial direct costs upon the Tribe, nor would
it preempt Tribal law. As noted previously, a Tribe that is part of an
area that is reclassified from Marginal to Moderate nonattainment is
not required to submit a TIP revision to address new Moderate area
requirements. However, when the EPA finalizes the determinations of
failure to attain proposed in this action, the NNSR major source
threshold and offset requirements will change for stationary sources
seeking preconstruction permits in any nonattainment areas newly
reclassified as Moderate.
The EPA will communicate with the potentially affected Tribe
located within the boundary of the nonattainment area addressed in this
final rule, including offering government-to-government consultation,
as appropriate.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
as applying to those regulatory actions that concern environmental
health or safety risks that EPA has reason to believe may
disproportionately affect children, per the definition of ``covered
regulatory action'' in section 2-202 of the Executive Order. This
action is not subject to Executive Order 13045 because it does not
establish an environmental standard intended to mitigate health or
safety risks.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not subject to Executive Order 13211 (66 FR 28355,
May 22, 2001) because it is not a significant regulatory action under
Executive Order 12866.
I. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards. Therefore,
EPA is not considering the use of any voluntary consensus standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
February 16, 1994) directs Federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on communities with environmental justice
(EJ) concerns to the greatest extent practicable and permitted by law.
EPA defines EJ 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.'' EPA further defines
the term fair treatment to mean that ``no group of people should bear a
disproportionate burden of environmental harms and risks, including
those resulting from the negative environmental consequences of
industrial, governmental, and commercial operations or programs and
policies.''
In the proposed rule we explained that we had considered specific
information related to EJ, consisting of an EJSCREEN analysis for
Duchesne and Uintah Counties, along with the ozone design values for
the area. As explained in our Response to Comments document, we
received additional EJ-related information during the public comment
period and have considered that information in taking this final
action. Due to the nature of the action being taken here, this action
is expected to have a neutral to positive impact on the air quality of
the affected area. Our final action is consistent with the stated goal
of E.O. 12898 of achieving environmental justice for communities with
EJ concerns.
K. Congressional Review Act
This rule is exempt from the Congressional Review Act (CRA) because
it is a rule of particular applicability. The rule makes factual
determinations for an identified entity (Uinta Basin, UT area), based
on facts and circumstances specific to that entity. The determinations
of attainment and failure to attain the 2015 ozone NAAQS do not in
themselves create any new requirements beyond what is mandated by the
CAA.
L. Judicial Review
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by February 14, 2025. Filing a petition for
reconsideration by the Administrator of this action does not affect the
finality of this action for the purposes of judicial review nor does it
extend the time within which a petition for judicial review may be
filed and shall not postpone the effectiveness of this action. This
action may not be challenged later in proceedings to enforce its
requirements (see section 307(b)(2)).
List of Subjects in 40 CFR Part 81
Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.
Dated: December 6, 2024.
KC Becker,
Regional Administrator, Region 8.
For the reasons stated in the preamble the Environmental Protection
Agency amends title 40 CFR part 81 as follows:
PART 81--DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES
0
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Subpart C--Section 107 Attainment Status Designations
0
2. In Sec. 81.345, the table titled ``Utah--2015 8-Hour Ozone NAAQS
[Primary and Secondary]'' is amended by revising the entry ``Uinta
Basin, UT'' to read as follows:
Sec. 81.345 Utah.
* * * * *
[[Page 101489]]
Utah--2015 8-Hour Ozone NAAQS
[Primary and secondary]
----------------------------------------------------------------------------------------------------------------
Designation Classification
Designated area \1\ ----------------------------------------------------------------------------------
Date \2\ Type Date \2\ Type
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Uinta Basin, UT \3\.......... .............. Nonattainment...... January 15, 2025......... Moderate.
Duchesne County (part):
All land in Duchesne
County below a
contiguous external
perimeter of 6,250 ft.
in elevation. All areas
within that contiguous
external perimeter are
included in the
nonattainment area--
including mesas and
buttes which may have an
elevation greater than
6,250 ft., but which are
surrounded on all sides
by land lower than 6,250
ft. Additionally, areas
that fall outside the
6,250 ft. contiguous
external perimeter that
have elevations less
than 6,250 ft. are
excluded from the
nonattainment area. The
boundary is defined by
the 6,250 ft. contour
line created from the
2013 USGS 10-meter
seamless Digital
Elevation Model (USGS
NED n41w1101/3 arc-
second 2013 1 x 1 degree
IMG).
Uintah County (part): All
land in Uintah County
below a contiguous
external perimeter of
6,250 ft. in elevation.
All areas within that
contiguous external
perimeter are included
in the nonattainment
area--including mesas
and buttes which may
have an elevation
greater than 6,250 ft.,
but which are surrounded
on all sides by land
lower than 6,250 ft.
Additionally, areas that
fall outside the 6,250
ft. contiguous external
perimeter that have
elevations less than
6,250 ft. are excluded
from the nonattainment
area. The boundary is
defined by the 6,250 ft.
contour line created
from the 2013 USGS 10-
meter seamless Digital
Elevation Model (USGS
NED n41w1101/3 arc-
second 2013 1 x 1 degree
IMG).
* * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ Includes any Indian country in each county or area, unless otherwise specified. EPA is not determining the
boundaries of any area of Indian country in this table, including any area of Indian country located in the
larger designation area. The inclusion of any Indian country in the designation area is not a determination
that the state has regulatory authority under the Clean Air Act for such Indian country.
\2\ This date is August 3, 2018, unless otherwise noted.
\3\ The EPA is designating portions of the Uinta Basin as ``nonattainment,'' including both Tribal and State
lands. The Ute Indian Tribe has air quality planning jurisdiction in the areas of Indian country included in
the Uinta Basin nonattainment area, while the State of Utah has air quality planning jurisdiction in the areas
of State land included in the Uinta Basin nonattainment area.
* * * * *
[FR Doc. 2024-29246 Filed 12-13-24; 8:45 am]
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