Air Quality Designation; FL; Redesignation of the Duval County Ozone Unclassifiable Area

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

On June 19, 2019, the State of Florida, through the Florida Department of Environmental Protection (FDEP), submitted a request for the Environmental Protection Agency (EPA) to redesignate the Jacksonville, Florida ozone unclassifiable area (hereinafter referred to as the “Duval County Area” or “Area”) to attainment for the 2015 primary and secondary 8-hour ozone national ambient air quality standards (NAAQS). EPA now has sufficient data to determine that the Duval County Area is in attainment of the 2015 primary and secondary 8-hour ozone NAAQS. EPA is approving the State's request and redesignating the Area to attainment/unclassifiable for the 2015 primary and secondary 8-hour ozone NAAQS based upon valid, quality-assured, and certified ambient air monitoring data showing that the Area is in compliance with the 2015 primary and secondary 8-hour ozone NAAQS.

DATES:

This rule will be effective December 23, 2019.

ADDRESSES:

EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2019-0374. All documents in the docket are listed on the www.regulations.gov website. Although listed in the index, some information may not be publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at the Air Regulatory Management Section, Air Planning and Implementation Branch, Air and Radiation Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Madolyn Sanchez, Air Regulatory Management Section, Air Planning and Implementation Branch, Air and Radiation Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960. Ms. Sanchez can be reached by telephone at (404) 562-9644 or via electronic mail at sanchez.madolyn@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

On October 1, 2015, EPA revised the primary and secondary 8-hour NAAQS for ozone to a level of 70 parts per billion (ppb), based on a 3-year average of the annual fourth-highest daily maximum 8-hour ozone concentrations. See 80 FR 65292 (October 26, 2015). EPA established the standards based on significant evidence and numerous health studies demonstrating that serious health effects are associated with exposures to ground-level ozone.

The process for designating areas following promulgation of a new or revised NAAQS is contained in section 107(d)(1) of the CAA. On June 4, 2018 (83 FR 25776), EPA published a final rule designating certain areas across the country, including the Duval Area, as nonattainment, unclassifiable, or attainment/unclassifiable for the 2015 primary and secondary 8-hour ozone NAAQS based primarily upon air quality monitoring data from monitors for calendar years 2014-2016. EPA designated Duval County as unclassifiable for the 2015 primary and secondary 8-hour ozone NAAQS because the monitors in the Duval County Area had incomplete data for the 2014-2016 timeframe.

On June 19, 2019, Florida submitted a request for EPA to redesignate the Duval County Area to attainment/unclassifiable for the 2015 primary and secondary 8-hour ozone NAAQS based upon valid, quality-assured, and certified ambient air monitoring data from 2016-2018 showing that the Area is in compliance with the 2015 primary and secondary 8-hour ozone NAAQS. In a notice of proposed rulemaking (NPRM) published on August 14, 2019 (84 FR 40351), EPA proposed to approve the State's redesignation request. The details of Florida's submittal and the rationale for EPA's actions are further explained in the NPRM. Comments on the NPRM were due on or before September 13, 2019.

II. Response to Comments

EPA received one set of adverse comments on its proposal action. These comments, from an anonymous commenter, are provided in the docket for this final rulemaking. Below is a summary of the comments and EPA's responses.

Comment 1: The Commenter contends that EPA does not have the authority to redesignate any area, including the Duval County Area, to “attainment/unclassifiable” because the Agency must use one of the three options (i.e., attainment, nonattainment, or unclassifiable) listed for designations in CAA section 107(d)(1)(A).

Response 1: EPA disagrees with the Commenter. The Agency's use of the label “attainment/unclassifiable” rather than “attainment” when designating an area or redesignating an unclassifiable area that now has data demonstrating attainment of the relevant NAAQS has no legal or practical significance. An area classified as attainment/unclassifiable meets Congress's definition of an attainment area under CAA section 107(d)(1)(A)(ii), and the legal status and applicable regulatory framework are the same regardless of whether the area is labeled solely as “attainment.”

EPA has a longstanding practice of designating most areas that meet a NAAQS as “unclassifiable/attainment,” or more recently, “attainment/unclassifiable” for that standard. This category includes areas that have air quality monitoring data meeting the NAAQS and areas that do not have monitors and for which EPA has no evidence that the areas may be violating the NAAQS or contributing to a nearby violation. EPA recently reversed the order of the label to “attainment/unclassifiable” because it better conveys the definition of the designation category and is more easily distinguished from the separate “unclassifiable” category. See, e.g., 83 FR 25776, 25778 (June 4, 2018). EPA uses the “unclassifiable” category for areas where EPA could not determine, based upon available information, whether the NAAQS was being met and/or EPA had not determined the area to be contributing to nearby violations. EPA reserves the “attainment” category for instances when EPA redesignates a nonattainment area that has attained the relevant NAAQS.

Comment 2: The Commenter asserts that EPA cannot redesignate any area to attainment without demonstrating that the area meets the requirements of CAA section 107(d)(3)(E). By not addressing these requirements for the Duval Area, the Commenter claims that the Agency failed to address the required elements for a redesignation to attainment and effectively granted itself an extension of the initial designation process.

Response 2: EPA disagrees with the Commenter. As noted in the NPRM, Congress expressly limited the redesignation criteria in CAA section 107(d)(3)(E) to redesignations of nonattainment areas to attainment, and therefore, these criteria are not applicable to redesignations of unclassifiable areas to attainment/unclassifiable. Furthermore, a redesignation under section 107(d)(3) is not and cannot be an extension of the initial designations process because an area must first be designated under a separate legal process pursuant to section 107(d)(1) before it can be redesignated. Extensions of the designations process are governed by section 107(d)(1)(B) which allows for a one-year extension in the event that the EPA Administrator has insufficient information to promulgate the designations. EPA can designate an area as “unclassifiable” regardless of whether it extends the designations period. EPA designated the Duval Area as “unclassifiable” pursuant to section 107(d)(1) on June 4, 2018, due to incomplete air quality monitoring data from 2014-2016. Complete, quality-assured, and certified data now exist for the 2016-2018 time period, and these data show that the Area is attaining the standard. The State submitted a redesignation request under section 107(d)(3)(A) based on these data, and EPA is approving that request because it meets the CAA requirements for a redesignation from unclassifiable to attainment/unclassifiable.

III. Final Action

EPA is approving Florida's redesignation request and redesignating the Duval County Area from unclassifiable to attainment/unclassifiable for the 2015 8-hour ozone NAAQS.

IV. Statutory and Executive Order Reviews

Under the CAA, redesignation of an area to attainment/unclassifiable is an action that affects the status of a geographical area and does not impose any additional regulatory requirements on sources beyond those imposed by state law. A redesignation to attainment/unclassifiable does not in and of itself create any new requirements. Accordingly, this action merely redesignates an area to attainment/unclassifiable and does not impose additional requirements. For that reason, this action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because it is not a significant regulatory action under Executive Order 12866;
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Will not have disproportionate human health or environmental effects under Executive Order 12898 (59 FR 7629, February 16, 1994).

This final redesignation action is not approved to apply to any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

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 January 21, 2020. Filing a petition for reconsideration by the Administrator of this final rule 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 such rule or 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
• National parks
• Wilderness areas

40 CFR part 81 is amended 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.

2. In § 81.310, the table entitled “Florida—2015 8-Hour Ozone NAAQS (Primary and Secondary)” is amended by revising the entry for “Jacksonville, FL” to read as follows: