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Federal Register / Vol. 86, No. 112 / Monday, June 14, 2021 / Proposed Rules
new or revised NAAQS, each governor or tribal leader has an opportunity to recommend air quality designations, including the appropriate boundaries for nonattainment areas, to the EPA. The EPA considers these recommendations as part of its duty to promulgate the formal area designations and boundaries for the new or revised NAAQS. By no later than 120 days prior to promulgating designations, the EPA is required to notify states, territories, and tribes, as appropriate, of any intended modifications to an area designation or boundary recommendation that the EPA
deems necessary. Accordingly, the EPA
designated all areas of the country as to whether they met, or did not meet, the NAAQS in three rounds, resulting in 52
nonattainment areas.
In Round 1 82 FR 54232; November 6, 2017, the EPA designated 2,646
counties, two separate tribal areas and five territories as attainment/
unclassifiable, and one area as unclassifiable. In Round 2 83 FR 25776;
April 30, 2018, the EPA designated 51
nonattainment areas, one unclassifiable area, and all remaining areas as attainment/unclassifiable, except for the eight counties in the San Antonio, Texas area. In Round 3 83 FR 35136; July 17, 2018, the EPA designated one county in the San Antonio area as nonattainment and the other seven counties as attainment/unclassifiable.
Several environmental and public health advocacy groups, three local government agencies, and the state of Illinois filed a total of six petitions for review challenging the EPAs 2015
ozone NAAQS designations promulgated on April 30, 2018. The District of Columbia Circuit Court consolidated the petitions into a single case, Clean Wisconsin v. EPA, 964 F.3d 1145 D.C. Cir. 2020. Collectively, the petitioners challenged aspects of the EPAs final designations associated with nine nonattainment areas. The petitioners primarily argued that the EPA improperly designated counties in whole or part as attainment that should have been designated as nonattainment because of contribution to nearby counties with violating monitors. In its response brief, the EPA requested voluntary remand of the final designation decisions for ten counties associated with four nonattainment areas to further review those designations.
On July 10, 2020, the District of Columbia Circuit Court granted the EPAs requests for voluntary remand and remanded several other counties. In total, the Court remanded 16 counties associated with nine nonattainment areas back to the EPA, including nearby
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counties that EPA designated as attainment. The Court did not vacate the initial April 30, 2018 designations, but required the EPA to issue revised designations as expeditiously as practicable. In light of the Court decision, the EPA re-evaluated the existing technical record that was used for the initial April 2018 designations, to support either revising or reaffirming the designations for these areas.
The EPA is responding to this remand through two separate Federal Register documents. The first document, signed on May 24, 2021, finalizes designation decisions for 14 counties. EPAs December 2017 initial designations and April 2018 final designations aligned with Texas and Colorados recommendations for El Paso and Weld Counties, respectively, and so, at that time, the EPA had no need to, and did not, notify the two states that the Agency planned to modify the states recommendations. However, the EPAs intended designations for those areas in response to the courts remand would modify the states recommendations. As such, the EPA is acting consistently with the CAA requirement that the EPA
notify the relevant states and allow them to demonstrate why any proposed modification is inappropriate, and is undertaking a 120-day process.
In the EPAs April 2018 final designations, the intended boundary for the El Paso-Las Cruces nonattainment area only contained the southeastern portion of Dona Ana County, New Mexico, and so was called the Dona Ana County, New Mexico nonattainment area in that final action.
The EPAs intended modification of Texass attainment recommendation would expand the boundary of the nonattainment area to include multiple counties and thus, become a multi-state nonattainment area. As such, in keeping with the EPA practices, the Agency intends to name the nonattainment area based on the Combined Statistical Area that comprised its area of analysis.
II. Instructions for Submitting Public Comments and Internet Website for Rulemaking Information A. Invitation to Comment The purpose of this document is to solicit input from interested parties, other than the states to which we have sent notification letters, on the EPAs recent responses to the designation recommendations for the 2015 Ozone NAAQS. These responses, and their supporting technical analyses, can be found at https www.epa.gov/ozonedesignations and in the public docket
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for these ozone designations at Docket ID No. EPAHQOAR20170548. The EPA Docket Office can be contacted at 202 5661744, and is located at EPA
Docket Center Reading Room, WJC West Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004.
However, as noted earlier, the EPA
Docket Center and Reading Room are closed to the public, with limited exceptions, to reduce the risk of transmitting COVID19. Our Docket Center staff will continue to provide remote customer service via email, phone, and webform. We encourage the public to submit comments via https
www.regulations.gov, as there may be a delay in processing mail and faxes.
Hand deliveries and couriers may be received by scheduled appointment only. For further information on EPA
Docket Center services and the current status, please visit us online at https
www.epa.gov/dockets.
CAA section 107d1 provides a process for air quality designations that involves recommendations by states, territories, and tribes to the EPA and responses from the EPA to those parties, prior to the EPA promulgating final area designations and boundaries. The EPA
is not required under the CAA section 107d1 to seek public comment during the designation process, but we are electing to do so for these areas with respect to the 2015 Ozone NAAQS to gather additional information for the EPA to consider before making final designations for the specific areas addressed in the EPAs recent letters to states and tribes. The EPA is basing its final designations decisions on data and information contained in the existing designations record. As such, the EPA
will not consider new information submitted by states or during the public comment process that is not a part of the existing record, although EPA will consider new analysis based on the existing record. The EPAs reliance on the existing record to support the designations is reasonable in light of the circumstances. The CAA does not specify what data the Agency must rely on in re-promulgating designations upon remand from a court. As such, the EPAs reasonable reliance on the existing record reflects the EPAs dedication to national consistency and the specific direction of the court in Clean Wisconsin: to issue revised designations as expeditiously as practicable in responding to the remand.
Section 107d of the CAA lays out a particular timeline for designations decisions to be made, triggered from the date a NAAQS is promulgated. For the 2015 ozone NAAQS, the designation of
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