[Federal Register: May 26, 2005 (Volume 70, Number 101)]
[Rules and Regulations]
[Page 30591-30604]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26my05-19]
[[Page 30591]]
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Part IV
Environmental Protection Agency
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40 CFR Part 51
Implementation of the 8-Hour Ozone National Ambient Air Quality
Standard--Phase 1: Reconsideration; Final Rule
[[Page 30592]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 51
[OAR 2003-0079, FRL-7918-6]
RIN 2060-AJ99
Implementation of the 8-Hour Ozone National Ambient Air Quality
Standard--Phase 1: Reconsideration
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA is taking final action on two issues raised in a
petition for reconsideration of EPA's rule to implement the 8-hour
ozone national ambient air quality standard (NAAQS or standard). In
addition, EPA is taking final action to clarify two aspects of that
implementation rule. On April 30, 2004, EPA issued a final rule
addressing key elements of the program to implement the 8-hour ozone
NAAQS (Phase 1 Rule). Subsequently, on June 29, 2004, and September 24,
2004, three different parties each filed a petition for reconsideration
of certain specified aspects of the final rule. By letter dated
September 23, 2004, EPA granted reconsideration of three issues raised
in the petition for reconsideration filed by Earthjustice on behalf of
several environmental organizations. On February 3, 2005, we proposed
action on two of the issues and today we are taking final action on
these two issues: The applicability of the section 185 fee provisions
once the 1-hour NAAQS is revoked, and the timing for determining what
is an ``applicable requirement'' for purposes of anti-backsliding once
the 1-hour NAAQS is revoked. On April 4, 2005, we issued a separate
proposed rule on new source review (NSR) anti-backsliding, the third
issue on which we granted reconsideration, and we plan to issue a final
rule by June 30, 2005.
In the February 3, 2005 proposal, we also proposed to revise the
Phase 1 Rule in two respects. Today, we are taking final action on
these two issues. First, we have determined that contingency measures
for failure to make reasonable further progress (RFP) or attain by the
applicable attainment date for the 1-hour ozone standard are no longer
required as part of the State implementation plan (SIP) for as part of
the SIP for an area after revocation of that standard. Second, we are
adding the requirement to submit attainment demonstrations to the
definition of ``applicable requirements'' in Sec. 51.900.
DATES: This final action will be effective on June 27, 2005.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. OAR-2003-0079. All documents in the docket are listed in the
EDOCKET index at http://www.epa.gov/edocket. Although listed in the
index, some information is not publicly available, i.e., confidential
business information (CBI) or other information whose disclosure is
restricted by statute. Certain other materials, 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 in EDOCKET or in hard copy at the EPA
Docket Center, EPA West (Air Docket), Attention E-Docket No. OAR-2003-
0079, Environmental Protection Agency, 1301 Constitution Avenue, NW.,
Room B102, Washington, DC. The Public Reading Room is open from 8:30
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The
telephone number for the Public Reading Room is (202) 566-1744 and the
fax number is (202) 566-1749.
FOR FURTHER INFORMATION CONTACT: Ms. Denise M. Gerth, Office of Air
Quality Planning and Standards, Environmental Protection Agency, Mail
Code C539-02, Research Triangle Park, NC 27711, phone number (919) 541-
5550 or by e-mail at gerth.denise@epa.gov or Mr. John J. Silvasi,
Office of Air Quality Planning and Standards, Environmental Protection
Agency, Mail Code C539-02, Research Triangle Park, NC 27711, phone
number (919) 541-5666 or by e-mail at silvasi.john@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
This action does not directly regulate emissions sources. Instead
it addresses how States should continue to plan to meet the ozone
standard as we transition from the 1-hour to the 8-hour ozone NAAQS.
Outline
I. General Information
II. Background
III. Today's Action
A. Reconsideration of the Portion of the Phase 1 Rule Addressing
the Continued Applicability of the Section 185 Fee Provision for
Areas that Fail to Attain the 1-Hour NAAQS
B. Reconsideration of the Portion of the Phase 1 Rule
Establishing the Time for Determining Which 1-Hour Obligations
Remain Applicable Requirements
C. Contingency Measures in SIPs for the 1-Hour Ozone Standard
D. Adding Attainment Demonstration to the List of ``Applicable
Requirements'' in Sec. 51.900(f)
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
G. Executive Order 13045: Protection of Children from
Environmental Health and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution or Use
I. National Technology Transfer Advancement Act
J. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act
L. Petitions for Judicial Review
M. Determination Under Section 307(d)
II. Background
On June 2, 2003 (68 FR 32802) we proposed a rule to govern the
transition from the 1-hour to the 8-hour NAAQS and implementation of
the 8-hour ozone NAAQS. On April 30, 2004 (69 FR 23951), we issued a
final rule (Phase 1 Rule), which covered some, but not all, of the
program elements in the proposed rule. The Phase 1 Rule covered the
following key implementation issues: Classifications for the 8-hour
NAAQS; revocation of the 1-hour NAAQS (i.e., when the 1-hour NAAQS will
no longer apply); how anti-backsliding principles will ensure continued
progress in achieving ozone reductions as areas transition to
implementation of the 8-hour ozone NAAQS; attainment dates for the 8-
hour ozone NAAQS; and the timing of emissions reductions needed for
attainment of the 8-hour ozone NAAQS. The EPA plans to issue a final
rule this summer addressing the remaining issues from the June 2003
proposal (Phase 2 Rule).
Following publication of the Phase 1 Rule, the Administrator
received three petitions, pursuant to section 307(d)(7)(B) of the Clean
Air Act (CAA) requesting reconsideration of a number of aspects of the
final rule.\1\ On September 23, 2004, we granted reconsideration of
three issues raised in the Earthjustice Petition. On February 3,
[[Page 30593]]
2005 (70 FR 5593), we issued a proposed rule seeking comment on two of
the three issues raised in the Petition and proposed two other
revisions to the Phase 1 Rule. The purpose of today's action is to take
final action on the four issues which were addressed in the February 3,
2005 proposal. First, we are determining that section 185 fees are no
longer required in SIPs for a failure to attain the 1-hour NAAQS once
the 1-hour NAAQS is revoked. Second, we are determining that the timing
for the determination of what is an ``applicable requirement'' once the
1-hour NAAQS is revoked is June 15, 2004. Third, we are finding that
contingency measures are no longer required in SIPs for a failure to
make RFP toward the 1-hour standard or attain that standard by the
applicable attainment date for the 1-hour standard. Fourth, we are
adding the requirement to submit an ``attainment demonstration'' to the
list of applicable requirements. On April 4, 2005 (63 FR 17018), we
proposed action on a third issue on which we granted reconsideration
concerning the continued applicability of the 1-hour NSR program. We
intend to take final action on that issue no later than June 30, 2005.
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\1\ The petitions for reconsideration of the Phase 1 Rule were
filed by: (1) Earthjustice on behalf of the American Lung
Association, Environmental Defense, Natural Resources Defense
Council, Sierra Club, Clean Air Task Force, Conservation Law
Foundation, and Southern Alliance for Clean Energy; (2) the National
Petrochemical and Refiners Association and the National Association
of Manufacturers; and (3) the American Petroleum Institute, American
Chemistry Council, American Iron and Steel Institute, National
Association of Manufacturers and the U.S. Chamber of Commerce.
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On January 10, 2005, we granted reconsideration of one other issue
raised by Earthjustice in their Petition--the overwhelming transport
classification for certain areas subject only to subpart 1 of Part D of
the CAA. We plan to issue a proposal on this issue this summer. At the
same time, we denied reconsideration of the remaining two issues they
raised in their Petition concerning the applicability of reformulated
gasoline when the 1-hour NAAQS is revoked and whether EPA had removed
authority for future redesignations to nonattainment for the 8-hour
ozone NAAQS.
We are continuing to review the issues raised in the National
Petrochemical and Refiners Association, et al., and American Petroleum
Institute, et al., Petitions. Copies of the Petitions for
Reconsideration and actions EPA has taken regarding the Petitions may
be found at: http://www.epa.gov/ttn/naaqs/ozone/o3imp8hr and in Air Docket, ID
No. OAR-2003-0079. For more detailed background information, the reader
should refer to the Phase 1 Rule (April 30, 2004; 69 FR 23956) and the
reconsideration proposal (February 3, 2005; 70 FR 5593).
III. Today's Action
A. Reconsideration of the Portion of the Phase 1 Rule Addressing the
Continued Applicability of the Section 185 Fee Provision for Areas That
Fail To Attain the 1-Hour NAAQS
1. Background. In the Phase 1 Rule we stated that upon revocation
of the 1-hour NAAQS: (1) EPA will no longer make findings of failure to
attain the 1-hour NAAQS; (2) EPA will no longer reclassify areas to a
higher classification for the 1-hour NAAQS based on a finding of
failure to attain; and (3) States are no longer obligated to impose
fees under sections 181(b)(4) and 185 of the CAA (``Fee Provisions'')
in severe or extreme ozone nonattainment areas that fail to attain the
1-hour standard by the area's 1-hour attainment date (69 FR 23984). In
the reconsideration proposal (70 FR 5596), we stated that we continued
to believe that there is no basis for determining whether an area has
met the 1-hour NAAQS once the 1-hour NAAQS has been revoked.
Consequently, we stated that since there will no longer be an
applicable classification or attainment date, there cannot be a failure
to meet such a date, i.e., the Fee Provisions could not be triggered
for 1-hour nonattainment areas.
2. Summary of Final Rule. For the reasons stated in the proposal
and in the response to comments, we are adopting the approach we
included in the proposal which is that once the 1-hour standard is
revoked for an area, the fee provisions in SIPs will not be triggered
for a failure of an area to attain the 1-hour NAAQS by its 1-hour
attainment date and States will not be required to adopt fee provisions
for the 1-hour standard.
3. Comments and Responses. Comment: Several commenters questioned
EPA's authority to waive the section 185 fee requirements. Some
commenters claimed that such action is contrary to the anti-backsliding
provisions of section 172(e) of the CAA which provides that if EPA
relaxes a NAAQS, it must provide for controls which are not less
stringent than the controls required before such relaxation. One
commenter noted that EPA interprets this provision to apply with equal
force when a NAAQS is strengthened. Several commenters stated that the
proposed waiver is also inconsistent with other rationales offered by
EPA for anti-backsliding, i.e., that ozone nonattainment areas are
designated and classified by operation of law; that allowing relaxation
of controls mandated by subpart 2 would render those controls
``prematurely obsolete'' in contravention of the Supreme Court's
decision regarding the implementation of the 8-hour NAAQS; and that
section 175A(d) of the CAA provides that areas redesignated to
attainment can, at most, move mandated measures to be contingency
measures, and that this rationale precludes relaxation of the fee
provisions after revocation. Another commenter stated that the CAA does
not explicitly delegate to EPA the authority to remove provisions
enacted by Congress nor does it impliedly authorize it to remove them;
consequently the section 185 fee provisions should remain in effect.
The commenter stated that EPA's proposal would render ``textually
explicit'' provisions of part D ``utterly inoperative,'' which was
prohibited under American Trucking. Another commenter contended the
language of the CAA is explicit and does not give EPA discretion to
choose to enforce or not enforce a program and EPA thus has no
authority to promulgate a rule stating that section 185 is not
applicable.
Response: As an initial matter, section 172(e) addresses the
situation where EPA has promulgated a less stringent NAAQS and does not
directly apply here, where EPA has promulgated a more stringent NAAQS.
However, since the statute is silent about what requirements must
remain when EPA promulgates a more stringent NAAQS, EPA looked to
section 172(e) (as well as other provisions of the CAA) to discern what
Congress might have intended in this situation. After reviewing section
172(e) and other provisions of the statute, EPA concluded that Congress
would have intended that control obligations that applied for purposes
of the 1-hour NAAQS should remain in place. As EPA explains in response
to a similar comment regarding the date for determining ``applicable
requirements,'' the commenters misconstrue what section 172(e)
requires. Section 172(e) requires EPA to provide for controls not less
stringent than those that applied ``before such relaxation [of the
NAAQS].'' Thus, it does not mandate that controls be as stringent as
those that could not be required to be imposed until a date after the
previous NAAQS no longer exists.
Similarly, our anti-backsliding rule establishes a ``cut-off'' date
for determining which control obligations will continue to apply. We
looked at three options for when this ``cut-off'' date should be--the
date of signature of designation rule, i.e., April 15, 2004; the
effective date of 8-hour designations, i.e., for most areas June 15,
2004; and the date the 1-hour standard is revoked, i.e., for most areas
June 15, 2005. In this
[[Page 30594]]
final rule, we adopt the effective date of designation for the 8-hour
standard as the relevant cut-off date. The requirement to impose
section 185 fees cannot exist any earlier than 2006 because the
earliest 1-hour attainment date for a severe or extreme ozone
nonattainment is November 15, 2005. Thus, we do not believe that even
applying 172(e) directly (which is not the case here) would result in
the fee obligation remaining in place after revision of the NAAQS
because the requirement to implement the fees does not exist as of the
effective date of designation for the 8-hour NAAQS. Additionally, upon
revocation of the 1-hour NAAQS, a State may remove from their SIP the
provisions for complying with the section 185 fee provision as it
applies to the 1-hour NAAQS.
We disagree that this approach is inconsistent with other
provisions in the statute that we looked to for purposes of
establishing our anti-backsliding approach. We recognized that Congress
did not directly speak to the issue of what occurs if a more stringent
NAAQS is promulgated, but looked to a variety of statutory provisions
to discern Congressional intent. While we did look at the fact that
Congress designated and classified areas as a matter of law in 1990, we
have not taken the position that such action ``codified'' the 1-hour
standard and left it in place indefinitely. Rather, we believe that
under this provision Congress intended the areas classified in 1990 to
implement the required controls until such areas attained the ozone
standard necessary to protect public health. The 8-hour standard has
replaced the 1-hour standard as the ozone standard necessary to protect
public health. We believe that Congress intended these areas to
continue to implement mandated control measures but not that they
provide for programs keyed to a finding of failure to attain the old
standard after that standard no longer applies.
As to the U.S. Supreme Court decision, we first note that in making
the quoted statement, the Supreme Court was addressing EPA's
determination that no areas would be classified under subpart 2 for
purposes of the 8-hour NAAQS and thus that the subpart 2 control
requirements would not apply at all for purposes of implementing the 8-
hour NAAQS. While the classification scheme we established in our Phase
1 rule for the 8-hour NAAQS is the primary method for addressing the
concern that no areas would be subject to subpart 2 for purposes of
implementing the 8-hour NAAQS, we agree that the statement carries some
weight for purposes of anti-backsliding, particularly where the
classification scheme for the 8-hour standard results in many areas
being placed in lower classifications than their classifications for
purposes of the 1-hour standard. As we stated in the preamble to the
Phase 1 Rule, we believe that Congress intended areas with significant
pollution problems to retain Congressionally-mandated pollution
programs until such time as they attain the ozone NAAQS necessary to
protect public health, which is now the 8-hour standard.
Our Phase 1 Rule does not render the subpart 2 provisions
``prematurely obsolete'' or ``utterly inoperative.'' Rather, they
continue to have meaning in two ways. First, the applicable subpart 2
control requirements that were required to be imposed for purposes of
the 1-hour standard at the time an area was designated nonattainment
for the 8-hour standard continue to apply until the area attains the 8-
hour NAAQS. Second, many areas will be classified under subpart 2 for
purposes of the 8-hour standard and will be subject to the subpart 2
requirements for purposes of implementing the 8-hour standard. We do
not read the Supreme Court decision (or any of the provisions of the
CAA that we examined) to mean that Congress intended areas designated
nonattainment for the 1-hour standard to remain fully subject to that
pre-existing NAAQS, including future requirements whose implementation
is dependent on a future determination that the area had not met a
revoked standard, even after they begin programs to comply with the
revised NAAQS, which is the NAAQS now determined to be necessary to
protect public health. Similarly, we don't think that section 175A(d)
indicates any Congressional intent to retain the section 185 fee
obligation for a failure to attain the 1-hour NAAQS after that standard
has been revoked. Because this provision is linked to whether an area
attains by its severe or extreme area attainment date, it would have no
meaning for an area redesignated to attainment and thus would not need
to be retained as a contingency measure for purposes of a 1-hour ozone
maintenance plan under section 175A(d). Because this obligation would
not need to be retained as part of a section 175A(d) maintenance plan,
we don't believe this provision indicates Congressional intent that the
fee obligation be retained once the 1-hour standard is revoked.
Comment: One commenter questioned EPA's statement that because
section 185 fees ``operate in lieu of reclassification'' they should no
longer apply since reclassifications will no longer be required. The
commenter contended this statement is incorrect because the CAA does
not require SIPs to contain provisions for imposition of the section
185 fees in lieu of reclassification for severe and extreme ozone
nonattainment areas.
Response: While we disagree with the commenter regarding whether
the fees are imposed ``in lieu'' of reclassification, we need not
resolve that issue here. For the same reasons we concluded that areas
are not subject to reclassification for the 1-hour standard once it is
revoked, we believe that areas should no longer be subject to the
section 185 fees provision for failure to meet that standard once it is
revoked. Like reclassification, the section 185 fees are triggered by a
failure to attain the standard. Once the 1-hour standard no longer
applies (i.e., is no longer the health-based NAAQS), areas are not
obligated to meet it and neither the States nor EPA are obligated to
conclude whether the area has met it by the attainment date that also
no longer applies. Therefore, findings of nonattainment of the 1-hour
standard will no longer be made and the 185 fee program would no longer
be required.
Comment: One commenter disagreed with EPA's assertion that the fee
provisions are linked to whether or not an area has met the 1-hour
NAAQS which EPA has determined is no longer needed to protect public
health. The commenter stated that regardless of whether the 1-hour
NAAQS is still needed to protect public health, the CAA requires that
controls required for the 1-hour NAAQS must not be relaxed.
Response: As discussed above, we do not believe the timing
provision of section 172(e) would mandate retention of the section 185
fee obligation where EPA has promulgated a less stringent NAAQS.
Comment: Several commenters disagreed with EPA's assertion that
section 185 fees are no longer needed because States should focus their
resources on the 8-hour NAAQS and it would be counterproductive to
continue efforts linked to the 1-hour NAAQS.
Response: We believe that imposition of the section 185 fees would
be counterproductive because instead of focusing limited resources on
attainment of the 8-hour NAAQS as expeditiously as practicable, States
would need to divert some of those resources to monitoring compliance
with a standard that is no longer needed to protect public health. If
fees were to be triggered, States would have to devote resources to the
further
[[Page 30595]]
development of plans focused on meeting the 1-hour standard based on a
determination that an area had failed to achieve a non-existent NAAQS.
We believe this is an unwise use of resources when the 1-hour standard
no longer applies.
A determination of failure to attain in the future, accompanied by
additional planning obligations focused on attaining a standard that no
longer applies, would detract from efforts to plan for and implement
the new health-based standard. Once controls are adopted for the 8-hour
NAAQS, additional 1-hour planning would be redundant, at a minimum, and
could result in efforts beyond those necessary to meet the applicable
health-based standard.
Comment: Several commenters disagreed with EPA's assertion that the
CAA requires a finding of failure to attain before the fee provisions
are triggered. The commenters stated that the fees are based on whether
an area has attained, which can be determined by comparing monitored
air quality data with the standard for the relevant time period. One
commenter noted that for areas that will be submitting an outstanding
1-hour attainment demonstration, EPA can and must determine whether the
demonstration shows attainment with the 1-hour NAAQS.
Response: Whether or not the fees provision is triggered by a
finding of failure to attain or simply through an examination of
monitoring data, is not a decisive factor for determining whether the
fee obligation should be retained under the anti-backsliding
provisions. As provided above, we do not believe there is any
Congressional intent that this obligation remain in place.
While we retained the obligation to submit outstanding 1-hour
attainment demonstrations, we did so primarily for the purpose of
ensuring that as areas began the transition to implementation of the 8-
hour NAAQS, the areas achieved the emissions reductions that Congress
contemplated they would make on a specific near-term schedule. A
determination that a specific mix of control measures demonstrates
attainment at a future date is not the same as a reviewing monitoring
data after the attainment date to determine whether an area in fact
attained. The purpose of retaining the outstanding 1-hour attainment
demonstration obligation is to ensure that in the short-term, prior to
submission of 8-hour SIPs, areas continue to make progress in cleaning
their air.
Comment: Several commenters urged EPA to retain the section 185 fee
provisions to provide incentives for businesses in the worst
nonattainment areas to reduce emissions in order to attain or make RFP
toward the NAAQS. One commenter disagreed with EPA's argument that it
would be counterproductive to continue efforts linked to whether or not
an area met the 1-hour NAAQS. Further, the commenter stated that the
fee provisions provide an economic incentive for major sources to
achieve 20 percent reductions in emissions in areas that are violating
the NAAQS. Another commenter stated that the section 185 fees should be
retained because they create a strong incentive for major sources to
reduce emissions and ensure that local areas and States take actions to
reduce emissions and improve air quality. The commenter stated the
section 185 fees create tremendous benefits at the SIP development
stage since major sources can and have become forceful advocates for
emissions reductions from other sources based on an economic interest
in avoiding this charge to pollute. One commenter disagreed with EPA's
assertion that areas should focus their resources on the 8-hour NAAQS
rather than the 1-hour NAAQS because they believe that Congress' intent
was to impose fees as incentives while still requiring emissions
reductions regardless of whether the reductions are to achieve the 8-
hour or 1-hour NAAQS. Some commenters noted that the fees would
generate additional resources for planning and control efforts and
would discourage emissions of ozone precursors. Finally, one commenter
stated that the section 185 fees would provide substantial resources to
States with difficult air pollution problems.
Response: As stated above, EPA does not believe that Congress
directly spoke to which obligations must remain where EPA promulgates a
more stringent standard. Furthermore, we do not believe that Congress
intended the fee obligation to continue for a failure to meet a
standard once that standard has been replaced. Because the section 185
fees that would apply for failure to attain the 1-hour NAAQS are linked
to whether an area has attained the 1-hour standard, any efforts to
eliminate fees imposed for a failure to attain the 1-hour standard
would be focused on attainment of the 1-hour standard not the 8-hour
standard, which is the standard necessary to protect public health.
Thus, if we retained the fee provisions for purposes of failure to
attain the 1-hour standard, States would divert resources from planning
for the 8-hour standard to planning efforts for the 1-hour standard
based on a future determination that the area had not met a revoked
standard.
The incentives for major sources to reduce emissions remain. The
section 185 fee provisions remain in place for purposes of the 8-hour
standard, and thus sources will have an incentive to reduce emissions
to ensure areas meet the 8-hour standard. We note that it is
speculative to assume that States would use fees generated under this
provision for purposes of planning and control efforts beyond those
already funded by the State. In any event, we see no Congressional
intent to impose these fees for that purpose. That reason, absent a
compelling reason related to attaining the 8-hour NAAQS, is not a
sufficient basis to retain the requirement.
Comment: One commenter also stated that EPA did not provide support
in the record for its decisions on how to implement the 8-hour
standard, rendering its decision arbitrary and capricious. In
particular, the commenter claimed EPA provided no support for its
decision to eliminate the fee provisions nor showed that it would be
counterproductive to retain the fee obligation for severe and extreme
1-hour nonattainment areas that fail to attain the 1-hour standard by
their attainment date.
Response: This commenter, as well as others, contend that retention
of the fee provisions for failure to attain the 1-hour standard would
be beneficial because their existence would spur stationary sources to
advocate tighter controls in order to avoid the repercussions of a
failure to attain. It is logical to assume that these same fee
provisions, if triggered, would spur stationary sources to pressure
areas to focus on attainment of the 1-hour standard (to relieve the
sources of the fee obligation). Planning activities for attaining a
standard take a commitment of time and money. While reductions for
purposes of the 8-hour standard may result in benefits for the pre-
existing 1-hour standard (and vice versa), other activities, such as
modeling for attainment, will not. Time and resources spent modeling
and planning for attainment of the 1-hour standard will detract from
planning efforts for the 8-hour standard.
B. Reconsideration of the Portion of the Phase 1 Rule Establishing the
Time for Determining Which 1-Hour Obligations Remain Applicable
Requirements
1. Background. The Phase 1 Rule provided that the ``applicable
requirements'' would be those 1-hour
[[Page 30596]]
control measures that applied in an area as of the date of signature of
the Phase 1 Rule (i.e., April 15, 2004).\2\ In the June 2003 proposal
(68 FR 32821), EPA had proposed that the applicable requirements would
be those that applied as of the effective date of the 8-hour
designations (i.e., for almost all areas, June 15, 2004). The draft
regulatory text released for public comment in August 2003 defined the
applicable requirements as those 1-hour requirements that applied as of
the date of revocation of the 1-hour NAAQS (i.e., for almost all areas,
June 15, 2005). (See e.g., 51.905(a) of Draft Regulatory Text.) In the
reconsideration proposal, we proposed June 15, 2004 as the date for
determining which 1-hour control measures continue to apply in an area
once the 1-hour standard is revoked, which was consistent with our June
2, 2003 proposal.
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\2\ The Phase 1 Rule provides in Sec. 51.900(f) that:
``Applicable requirements means for an area the following
requirements to the extent such requirements apply or applied to the
area for the area's classification under section 181(a)(1) of the
CAA for the 1-hour NAAQS at the time the Administrator signs a final
rule designating the area for the 8-hour standard as nonattainment,
attainment or unclassifiable * * *'' (69 FR 23997). Phase 1 of the
final rule to implement the 8-hour ozone NAAQS was signed by the
Administrator on April 15, 2004.
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2. Summary of Final Rule. We are adopting the approach that we
proposed, which is that the effective date of the 8-hour designations
(i.e., for almost all areas, June 15, 2004) is the date for determining
which 1-hour control measures continue to apply in an area once the 1-
hour standard is revoked. An area's 1-hour designation and
classification as of June 15, 2004 would dictate what 1-hour
obligations remain ``applicable requirements'' under the anti-
backsliding provisions of the Phase 1 Rule. We believe this date is
consistent with the trigger date for other obligations for
implementation of the 8-hour ozone NAAQS, such as the attainment date
provisions of the Phase 1 Rule and the date for submission of planning
SIPs as proposed in the June 2003 proposal.
The final introductory regulatory text for Sec. 51.900(f) has been
revised from the proposal to use the defined term ``designation for the
8-hour NAAQS'' (see Sec. 51.900(h)) to refer to the effective date of
designation for an area.
3. Comments and Responses. Comment: One commenter stated that the
proposed revocation of the 1-hour NAAQS violates the CAA and will be
invalidated on remand. The commenter further stated that the entire
``applicable requirements'' rubric stands with no legal basis.
Response: We are not reconsidering in this action our revocation of
the 1-hour standard or the applicable requirements ``rubric.''
Therefore, we do not respond to comments on these issues.
Comment: One commenter noted that any cutoff date for anti-
backsliding protection violates section 172(e) of the CAA that provides
that EPA's rules must provide for controls which are not less stringent
than the controls applicable to such areas designated nonattainment
before relaxing (or strengthening) a NAAQS. The commenter stated that
section 172(e) requires that any area designated nonattainment for the
1-hour NAAQS before relaxation (or here, revocation) of that standard
must be subject to controls at least as stringent as those that would
apply to the area under the 1-hour NAAQS. Thus, the commenter stated
that such areas must continue to adopt and implement the level of
controls mandated by the CAA for 1-hour nonattainment areas as they
would in the absence of revocation. The commenter stated that this
means that areas are subject to additional requirements in the case of
a bump up to a higher classification, whether the bump up occurred
before or after the revocation. The commenter stated that the proposal
is also inconsistent with other rationales offered by EPA for anti-
backsliding, i.e., that ozone nonattainment areas are designated and
classified by operation of law, and that allowing relaxation of
controls mandated by subpart 2 would render those controls
``prematurely obsolete'' in contravention of the Supreme Court's
decision inWhitman v. American Trucking Assoc. 531 U.S. 427 (2001).
Response: Initially, section 172(e) does not apply by its own terms
where, as here, EPA has adopted a new, more stringent NAAQS. Congress
did not directly address how areas should transition to a more
stringent NAAQS. However, as we stated in the preamble to the Phase 1
Rule, we looked to section 172(e) of the CAA, as well as other
statutory provisions and the Supreme Court decision in Whitman v.
American Trucking Assoc., 531 U.S. 427 (2001) to determine how we
thought Congress intended such a transition should occur. We concluded
that, where we have adopted a more stringent NAAQS, Congress would not
have intended areas to be able to loosen applicable control
requirements as they transition to implementation of that more
stringent NAAQS. This conclusion was the basis for our anti-backsliding
approach.
We note that contrary to the statements of the commenter, section
172(e) does provide a cut-off date. It provides that control
requirements should not be less stringent than the controls that
applied ``before such relaxation.'' This timing provision places a
limit on which controls should be considered. This phrase could
possibly be interpreted in several ways--e.g., the time the relaxed
standard is promulgated, the time areas must begin to implement the
revised standard, or the time the more stringent standard no longer
applies. However, we do not believe that it means that all requirements
that could ever be triggered for such a standard remain permanently in
place. That position is tantamount to saying that by this provision
Congress intended to retain the standard itself. We do not be believe
that Congress would have done so in such an oblique manner. In this
case, we took comment in the June 2, 2003 proposal and the draft
regulatory text that we made available on August 6, 2003 on several
options for what the timing for determining applicable requirements
should be. We have concluded that the control obligations that should
remain in place are those that applied as of the effective date of the
8-hour designation for an area. Furthermore, for the same reasons we
stated in response to comments on the section 185 fee issues, we do not
believe our interpretation is inconsistent with our analysis of the
other statutory provisions that we looked to for guidance on what
Congress may have intended.
Comment: A few commenters stated that the date for determining
``applicable requirements'' should be June 15, 2005. One commenter
stated that June 15, 2005 would contain the most recent control
measures and reduce the extent of backsliding that will occur due to
revocation of the 1-hour standard. The commenter further stated that
the measures that should apply for purposes of anti-backsliding should
include all measures that were submitted to EPA for review as of June
15, 2005. Another commenter who voiced support for June 15, 2005 as the
most appropriate date for determining applicable requirements noted
that choosing an earlier date would provide a ``benefit'' to those
communities that have gamed the SIP process to the detriment of those
communities who took their responsibilities earnestly. Further, the
commenter stated that the earlier date provides a potential future
incentive for States to delay the SIP process as long as possible with
hopes for future loopholes that would make such actions unnecessary.
[[Page 30597]]
Response: We disagree with the commenter that adopting June 15,
2005 as the date for determining ``applicable requirements'' would
ensure that the most recent control measures would apply. In fact, we
believe that there will be no substantive difference between the
selection of June 15, 2004 and June 15, 2005 because no areas have been
reclassified in that 1-year period. Under our anti-backsliding rule,
States remain obligated to adopt and implement any control obligations
that applied for the area's 1-hour classification as of the effective
date of designations for the 8-hour NAAQS. Thus, each area's control
requirements are dependent on the area's 1-hour classification as of
the date for determining the area's applicable requirements. Areas must
retain control obligations applicable on that date whether or not the
area had satisfied the obligation by that date. It appears that the
commenter misinterprets the Phase 1 Rule to allow areas that have not
yet adopted control obligations to be relieved of the obligation to
adopt such controls, which is not the case (69 FR 23972).
We note that an area's applicable requirements are also related to
the area's 1-hour designation as of the date for determining applicable
requirements. And, while EPA has proposed to redesignate several areas
(Atlanta, Cincinnati, Phoenix) from nonattainment to attainment for
purposes of the 1-hour standard, there is only one substantive
difference between the ``applicable requirements'' that would apply to
an area designated nonattainment for the 1-hour standard and 1-hour
attainment areas subject to a section 175A maintenance plan. That
difference is that a maintenance area that has moved an ``applicable
requirement'' to its contingency plan prior to the date for determining
the ``applicable requirements'' may leave that obligation in its
contingency plan and need not begin to implement the program if the
program is not required based on the area's 8-hour classification.\3\
For such an area, the selection of June 15, 2005 would provide
additional time for areas to move measures that are currently being
implemented to the area's contingency plan. Thus, if any argument could
be made, it would be that the selection of June 15, 2005 would provide
1-hour ozone nonattainment areas that achieve the 1-hour standard more
time to be eligible for redesignation to attainment. This could result
in less stringent controls being implemented because areas redesignated
to attainment are able to stop implementation of one or more control
measures and move those measures to the contingency plan.
---------------------------------------------------------------------------
\3\ See memorandum dated May 12, 2004, entitled ``1-Hour Ozone
Maintenance Plans Containing Basic I/M Programs'' from Tom Helms and
Leila H. Cook.
---------------------------------------------------------------------------
Comment: A number of commenters disagreed with making June 15,
2004, rather than April 15, 2004, the date for determining which
``applicable requirements'' apply to an area. One commenter stated that
April 15, 2004 represents the point in time when States were on notice
that they needed to shift their efforts and adopt measures to attain
the 8-hour not the 1-hour NAAQS. The commenter further stated that the
responsibility and timelines for implementing 8-hour nonattainment
measures were triggered for purposes of the new standard on April 15,
2004, in accordance with settlement agreements with environmental
groups in the American Lung Association litigation over the issue
(American Lung Association v. EPA (D.D.C. No. 1:02CV02239).
Response: States have been aware since July 1997, when the 8-hour
NAAQS was promulgated, that they needed to begin to consider programs
to meet that standard. While April 15, 2004 is the date that the final
Phase 1 and designation rules were signed, we do not believe that the
date of signature is more meaningful than the effective date of the
rulemaking action. For the reasons provided in the reconsideration
proposal, we believe that the effective date of designation is more
consistent with other obligations under the Phase 1 Rule and is,
therefore, more consistent and appropriate. We note that the settlement
referenced by the commenter only established an obligation for EPA to
sign no later than April 15, 2004, a final rule designating areas for
the 8-hour standard. That settlement did not address the timelines and
responsibilities for implementing the 8-hour ozone NAAQS.
Comment: One commenter stated that although the date change from
April 15, 2004 to June 15, 2004 represents only a couple of months, the
implications are significant for two areas that were placed in a more
stringent classification during that time frame. The commenter stated
that subpart 2's planning and implementation burdens fall
disproportionately on stationary sources whether or not stationary
sources are the primary contributor to nonattainment, without moving
either of the two areas impacted by the date change (i.e., Beaumont/
Port Arthur and the San Joaquin Valley) any closer to attaining either
the 1-hour or 8-hour NAAQS. The commenter further stated that Beaumont/
Port Arthur's nonattainment issues stem from ozone transport from the
Houston/Galveston nonattainment area, and that mobile sources comprise
as much as 60 percent of the emissions inventory in the San Joaquin
Valley.
Response: We agree that shifting the date from April 15, 2004 to
June 15, 2004 has implications for both the Beaumont/Port Arthur and
the San Joaquin Valley nonattainment areas which were classified
between those two dates. For the Beaumont/Port Arthur area, the
reclassification has resulted in a number of new requirements. Only the
new reasonably available control technology (RACT) requirements, which
must now apply to smaller sources with a potential to emit 50 tons/year
or more down from 100 tons/year, directly impact industrial sources.
Other new requirements, such as the clean fuel fleets requirement,
instead impact emissions from mobile sources. Thus, we do not believe
the requirements that were triggered by reclassification
disproportionately apply to stationary sources.
We note, however, that approximately 59 percent of the Beaumont/
Port Arthur area's NOX emissions and 55 percent of the
area's VOC emissions come from local stationary sources.\4\
Consequently, any attainment plan for the Beaumont/Port Arthur area
would have to include stationary source controls.
---------------------------------------------------------------------------
\4\ Texas SIP revision that was submitted on November 16, 2004,
see pages 2-5.
---------------------------------------------------------------------------
While we agree that the Beaumont/Port Arthur area is sometimes
affected by emissions transported from Houston, at other times the
Beaumont/Port Arthur area ozone problem is primarily the result of
locally-generated emissions. In Texas' latest proposed revision to the
SIP for the Beaumont/Port Arthur area, Texas estimated that more than
half of the 1-hour exceedence days were influenced significantly by
local emissions.\5\ This is not surprising since Beaumont/Port Arthur
is home to a large number of petrochemical manufacturers. Thus, we do
not agree that the additional local control obligations that would
apply based on a serious vs. moderate classification would not result
in reductions that will improve air quality in the Beaumont/Port Arthur
area.
---------------------------------------------------------------------------
\5\ Texas SIP revision that was submitted on November 16, 2004,
see pages 4-5.
---------------------------------------------------------------------------
In the San Joaquin Valley, shifting the date means that
``applicable requirements'' for the San Joaquin Valley ozone
nonattainment area are the ``extreme'' 1-hour ozone nonattainment
requirements as opposed to the
[[Page 30598]]
requirements that applied based on a ``severe'' 1-hour classification.
Although EPA generally agrees with the comment that mobile sources
contribute approximately 60 percent towards the ozone problem in the
Valley,\6\ we do not agree that requiring San Joaquin to adopt and
implement the 1-hour extreme control requirements places a new
disproportionate burden on stationary sources located in the Valley.
While the contribution of emissions from stationary sources to the
overall emissions in the San Joaquin Valley is less than that for
mobile sources,\7\ stationary sources remain a critical part of the
overall air pollution control strategy needed by the State and the San
Joaquin Valley Unified Air Pollution Control District to achieve
attainment.
---------------------------------------------------------------------------
\6\ Calculated from typical summertime day mobile source
NOX and VOC emissions inventory for 2000 as a percent of
the total 2000 NOX and VOC emissions. Extreme Ozone
Attainment Demonstration Plan, San Joaquin Valley Air Basin (October
2004), Section 3. Available at http://www.valleyair.org/.
\7\ Id. at p. 3-11, Table 3-1.
---------------------------------------------------------------------------
Section 182(e)(4) of the CAA allows SIPs for areas classified
extreme to adopt traffic controls during heavy traffic hours to reduce
the use of high polluting vehicles or heavy-duty vehicles,
notwithstanding any other provisions of the CAA. Furthermore, on-road
mobile source emission standards continue to improve through EPA and
State regulations, and will result in emissions reductions over time as
newer vehicles replace older vehicles. Additionally, new fuel and
emission standard requirements for nonroad diesel engines were
finalized by EPA last year and will achieve substantial reductions
through time from the non-road diesel engine sector. Reducing VOC
emissions from the large number of area sources is also an important
part of the overall ozone control strategy for the San Joaquin
Valley.\8\
---------------------------------------------------------------------------
\8\ Id. at p. 3-9, Table 3-1.
---------------------------------------------------------------------------
Comment: One commenter stated that EPA should apply anti-
backsliding measures only where they will assist an area in attaining
or maintaining the 8-hour NAAQS.
Response: The EPA established its general anti-backsliding approach
in the Phase 1 Rule and is not reconsidering here and therefore not
responding to comments on the general issues raised by the commenter.
Comment: One commenter stated that since San Joaquin's attainment
date under the 8-hour NAAQS is now 2013, there is no longer any reason
to require imposition of the control measures required for the extreme
classification contained in the approved bump up SIP for the 1-hour
NAAQS by 2010. The commenter stated that retaining these requirements
will unnecessarily restrict business operations in the area without
providing commensurate environmental benefit. Several commenters
asserted that retaining the April 15, 2004 date would be consistent
with the unique circumstances in the San Joaquin Valley. They claimed
that San Joaquin's 2005 emissions inventories for NOX and
reactive organic gases are mainly comprised of mobile source emissions
and that these emissions were a key reason the area was unable to
demonstrate attainment of the 1-hour ozone NAAQS by the 2005 deadline.
The commenters believe that continued implementation of the 1-hour
severe area requirements in addition to various mobile source emission
control measures which San Joaquin has adopted will satisfy EPA's
objective that they make expeditious progress toward attainment of the
8-hour NAAQS.
Response: At the State's request, EPA recently reclassified the San
Joaquin area to extreme. The EPA disagrees with the commenter that
because San Joaquin now has a later attainment date (2013 for the 8-
hour standard compared with a 1-hour extreme area attainment date of
2010), there is no longer a need to require the extreme area
requirements. We do not view the longer attainment period for the 8-
hour standard as a basis for delaying emission reductions that were
required for purposes of the 1-hour standard. The State's request for a
voluntary bump up to extreme was based on the area's inability to
demonstrate attainment of the 1-hour standard by 2007. Ozone is a
persistent problem in the San Joaquin Valley where, over the past 30
years, monitors in the San Joaquin Valley have measured exceedences of
the 8-hour standard level between approximately 90 and 140 days per
year.\9\ This serious and persistent ozone problem in the area supports
continuing to require the area to implement the more stringent
obligations that apply under the area's extreme classification for the
1-hour standard. In another response to comment, we provide more detail
regarding the extreme areas requirements and the ``circumstances'' of
the San Joaquin area, specifically responding to the commenters'
allegations relating to mobile source emissions. As stated in our
proposed reconsideration notice, EPA believes that implementing the
additional 1-hour requirements of the higher (extreme) classification
serves to ensure continued progress toward reducing ambient ozone
levels and meeting the 8-hour ozone standard.
---------------------------------------------------------------------------
\9\ See California Air Resources Board's 8-Hour Ozone Trends
Summary for the San Joaquin Valley Air Basin at: http://www.arb.ca.gov/adam/cgi-bin/db2www/polltrendsb.d2w/Branch
.
---------------------------------------------------------------------------
Comment: One commenter disagreed with EPA's statement that June 15,
2004 is more consistent with the other aspects of the Phase 1 Rule that
are keyed to the effective date of the designations rule rather than
the signature date. The commenter stated that nothing about EPA's use
of the phrase ``time of designation'' suggests that it was intended to
mean the effective date of designations. The commenter agreed with
EPA's statement that it is important for areas to know ``early in the
process'' which 1-hour requirements will remain in place for
implementation of the 8-hour NAAQS, and claimed that changing the
cutoff date now will impede the San Joaquin Valley Air Pollution
Control District's progress toward developing an attainment plan.
Another commenter stated that EPA's use of the date of signing of
designations is consistent with dates used elsewhere in the Phase 1
Rule and should be retained.
Response: The phrase ``designation for the 8-hour NAAQS'' is
defined in Sec. 51.900(h) of the Phase 1 Rule to mean ``the effective
date of the 8-hour designation for an area.'' We are aware of only one
purpose for which the date of signature of the designation rule is used
in the Phase 1 Rule. Section 51.902 indicates that an area's 1-hour
design value as of the date of signature of the designation rule will
govern whether the area is subject to the classification provisions of
subpart 2 of part D of title I of the CAA, or whether it is subject
only to the obligations under subpart 1. Since an area's classification
occurs ``by operation of law'' at the time of designation and because
such classification is included in the tables promulgated in the
designation rule, we could not use a date later than the date of
signature of the designation rule as the date for determining whether
an area would be classified under subpart 2. The ``effective date of
designation'' is used (i.e., the phrase ``designation for the 8-hour
standard'') for purposes of determining an area's attainment date. In
addition, our proposed rule concerning planning obligations for the 8-
hour standard (the regulatory text which was released for comment at
the same as the regulatory text for the Phase 1 Rule), linked SIP
submission obligations to the effective date of designation for the 8-
hour NAAQS.
[[Page 30599]]
C. Contingency Measures in SIPs for the 1-Hour Ozone Standard
1. Background. Sections 172(c)(9) and 182(c)(9) of the CAA require
that nonattainment area SIPs contain contingency measures that would be
implemented if an area fails to attain the NAAQS or fails to make RFP
toward attainment. In the reconsideration proposal, EPA recognized that
it had not addressed the continued application of 1-hour section
172(c)(9) contingency measures in the Phase 1 Rule. We proposed that
once the 1-hour standard is revoked contingency measures for the 1-hour
standard will no longer be required (e.g., if the State had not yet
submitted them) and contingency measures for the 1-hour standard that
had been approved in the SIP may be removed.
2. Summary of Final Rule. We are adopting the approach that we
proposed, which is that contingency measures under sections 172(c)(9)
and 182(c)(9), which are triggered upon a failure to attain the 1-hour
standard or to meet reasonable progress milestones for the 1-hour
standard, will no longer be required as part of the SIP once the 1-hour
NAAQS is revoked. This means that after revocation of the 1-hour
standard, an area that has not yet submitted a 1-hour attainment
demonstration or a specific 1-hour RFP SIP would no longer be required
to submit contingency measures in conjunction with those SIPs. Also,
areas with approved section 172 and 182 contingency measures could
remove them from their SIP.
3. Comments and Responses. Comment: Several commenters claimed that
dropping the requirement for contingency measures for failure to attain
or make progress toward attainment of the 1-hour ozone NAAQS is
unlawful, arbitrary and capricious and violates the anti-backsliding
provisions of section 172(e) by relaxing explicit control requirements
for pre-existing 1-hour nonattainment areas. Additionally, several
commenters claimed the proposal illegally abrogates subpart 2's
contingency measure requirements imposed on such areas ``as a matter of
law'' and renders those requirements ``prematurely obsolete'' in
opposition to the Supreme Court ruling in Whitman v. American Trucking
Assoc., 531 U.S. 427 (2001).
Response: As noted in response to other comments, section 172(e)
does not explicitly apply where EPA has promulgated a more stringent
NAAQS. Furthermore, section 172(e) contemplates that there is a cut-off
regarding which control obligations should continue after revision of a
NAAQS. Where contingency measures have not yet been triggered, we
believe it is consistent with Congressional intent to allow areas to
remove those measures (or to modify the trigger for such measures to
reflect the 8-hour standard). Furthermore, since EPA will no longer
make findings of failure to attain or make progress with respect to the
1-hour NAAQS, the obligation to trigger future contingency measures for
such 1-hour failures would never occur. With respect to the ``as a
matter of law'' argument and the commenters'' reliance on the Supreme
Court's ruling in Whitman, we refer to our response to comments on this
similar issue regarding the section 185 fees.
Comment: Several commenters claimed the proposal violates section
110(l) by interfering with applicable requirements for attainment and
RFP and without a showing that such measures are not needed for timely
attainment and progress toward attainment.
Response: As we have clarified in the regulatory text, States will
need to submit SIP revisions to remove the contingency measures from
their SIPs or to revise a trigger that is linked to a violation of the
1-hour NAAQS. In doing so, the State would need to demonstrate that the
modification would not interfere with attainment, reasonable progress
or any other applicable requirement for purposes of the 8-hour NAAQS.
However, since any future contingency measures will never be triggered,
EPA does not believe such SIP revisions would interfere with any
applicable requirements.
Comment: One commenter contended that because the proposal allows
the dropping of 1-hour contingency measures, this may imply that
contingency measures that have been implemented could be dropped.
Response: If a State has already implemented a contingency measure,
and such measure was considered a ``discretionary control measure''
after implementation under the Phase 1 Rule (i.e., is not an
``applicable requirement''), the State could modify its SIP to remove
such measure (as it could for any ``discretionary control measure''),
but would need to make a demonstration under 110(l) that the
modification would not interfere with attainment, reasonable progress
or any other applicable requirement for purposes of the 8-hour NAAQS.
EPA intends to issue guidance for States to follow to ensure that SIP
revisions are consistent with section 110(l).
Comment: Several commenters argued that the proposal is
inconsistent with EPA's decision to retain requirements for the 1-hour
attainment and rate of progress (ROP) plans and the rationale for that
decision (``because the ROP obligation results in control obligations,
we believe areas should remain obligated to adopt outstanding ROP
obligations to ensure that the ROP milestones are met''). One commenter
contended that contingency measures are an integral part of the
attainment demonstration and the ROP plan and, therefore, if the States
must meet the attainment demonstration and ROP plan obligations, they
must also satisfy contingency measure requirements.
Response: As we stated in the preamble to the final Phase 1 Rule,
we felt that Congress intended that areas continue to implement
mandatory control measures but that Congress' intent with regard to
planning SIPs was not as clear (69 FR 23874-75). As a policy matter, we
concluded that it made sense to require areas to continue to meet 1-
hour ROP obligations because we believed the obligation did not create
a significant burden on areas and it made sense that areas that had not
met this obligation were not relieved from achieving ROP reductions and
thus were treated the same as areas that had fulfilled their statutory
obligation. We reached a slightly different result for purposes of
outstanding 1-hour attainment demonstrations--providing States with
flexibility to adopt alternatives--but relied on the same rationale for
retaining the obligation. Additionally, we noted that one of the
primary focuses of the anti-backsliding provisions is to keep areas on
track for making reductions as they develop SIPs to meet the 8-hour
standard. For all of these reasons, we don't believe that areas are
obligated to retain the contingency measure obligation. The adoption
and implementation of the 1-hour ROP and attainment demonstrations (or
an alternative under 51.905(a)(1)(ii)) will ensure that progress is
made while areas transition. Once plans are adopted and approved for
purposes of the 8-hour standard, including 8-hour contingency measures,
those plans by definition will be what is necessary to protect public
health and the environment and 1-hour contingency measures that kick in
at some future date for the 1-hour standard will not be necessary to
achieve that goal (however, contingency measures are required for
purposes of the 8-hour standard). Furthermore, this approach is
consistent with our goal of shifting our focus to the 8-hour standard
and not continuing efforts to monitor
[[Page 30600]]
compliance with the pre-existing 1-hour standard.
Comment: One commenter argued that under section 172(e), EPA must
enforce controls no less stringent than the 1-hour ozone standard for
areas that have never achieved the standard, including section
182(c)(9) contingency measures. The commenter contends that EPA's
implementation of the 8-hour standard constitutes a relaxation of the
standard because (a) certain areas had higher classifications under the
1-hour standard than they have under the 8-hour standard; and (b) EPA
policy allows relaxation of offset ratios, major source definitions and
removal of contingency fees. Thus, they contend that EPA must
promulgate a set of control measures ``no less restrictive than under
the old standard.''
Response: The commenter raises an issue that is not being
reconsidered in this rulemaking. At the time of promulgation of the 8-
hour NAAQS and consistently since that time, EPA has taken the position
that the 8-hour NAAQS is a more stringent standard. Thus, although not
at issue in this rulemaking, we note that the fundamental premise of
the comment is inaccurate. The stringency of a standard is determined
by looking at the standard itself, which has three components: (1) The
averaging time (i.e., 8 hours); (2) level (.08 ppm); and (3) form (the
3-year average of the fourth-high annual reading at a specific
monitor). Once a standard is established, areas are required to meet
that standard and a determination of whether the standard has been met
is based on air quality monitoring data. How a standard is implemented,
does not alter the standard in any way although it could have
implications for whether areas meet their mandated attainment dates.
The EPA's current rulemaking efforts (based on the June 2003 proposal)
address how the standard is implemented, and in no way alter the
requirement that an area monitor attainment of the standard (as
expeditiously as practicable but no later than specific mandated dates)
in accordance with the requirements established in the NAAQS rulemaking
and thus do not affect the stringency of the standard.
Comment: One commenter recommended that all requirements relating
to the 1-hour standard should be retained, including those relating to
contingency measures. They point out that section 172(c)(9) requires
such measures.
Response: For the reasons provided above, we have concluded that
contingency measures related to attainment of the 1-hour NAAQS or
achievement of ROP milestones for the 1-hour NAAQS need not be
retained. Elsewhere in this rule, we address our decision to no longer
require SIPs to contain provisions for the imposition of fees under
section 185 for purposes of a failure to attain the 1-hour NAAQS. This
rulemaking did not re-open the issue of whether other 1-hour
requirements should be retained.
Comment: One commenter urged that the 1-hour standard should not be
revoked. They noted that the 1-hour standard is in some cases more
protective of public health than the 8-hour standard.
Response: As we noted in the final Phase 1 Rule, we determined in
the 1997 NAAQS rulemaking that we did not need to retain the 1-hour
standard to protect public health and that the only issue before us in
the Phase 1 Rule was the timing for determining when the 1-hour
standard should no longer apply (69 FR 23969). Neither issue is being
reconsidered in this rulemaking; thus, we will not address this comment
here.
Comment: One commenter suggested that we include in proposed Sec.
51.905(e)(2)(iii)--after the reference to section 172(c)(9) of the
CAA--a reference also to section 182(c)(9), as we did in the preamble
to the proposed rule.
Response: We agree with the commenter and have included that
reference in the final regulatory text.
Comment: One commenter noted that an inconsistency exists between
Sec. 51.905(e)(1) and proposed Sec. 51.905(e)(2)(iii). Section
51.905(e)(1) requires that the 1-hour contingency measures approved
into a SIP remain in force after the 1-hour standard is revoked until
the State removes them from the SIP; the commenter believes that the 1-
hour contingency measures won't be triggered since the 1-hour standard
is revoked. The commenter recommended either to revise Sec.
51.905(e)(1) to conform it with proposed Sec. 51.905(e)(2)(iii) by
removing the former provision's preconditions to removal of 1-hour
contingency measures; or to clarify the apparent inconsistency between
Sec. 51.905(e)(1) and proposed Sec. 51.905(e)(2)(iii).
Response: We agree that the language is inconsistent and that the
proposed Sec. 51.905(e)(2)(iii) was poorly drafted. States are
required to implement provisions in the approved SIP until such time as
the SIP is revised. We are revising Sec. 51.905(e)(2)(iii) to provide
that a State is not required to include in its SIP contingency measures
that are triggered upon a failure to attain the 1-hour ozone standard.
We note that since EPA will no longer be making determinations of
whether areas attain the 1-hour standard, contingency measures that
have such a trigger would never be triggered, even if they remained in
the SIP. Therefore, we have revised Sec. 51.905(e)(2)(iii) to be
consistent with Sec. 51.905(e)(ii). Areas must submit SIP revisions to
remove contingency measures from their SIPs under this provision.
Comment: One commenter noted that Sec. 51.905(a)(2), addressing 8-
hour nonattainment/1-hour maintenance areas, provides that the State
may not remove certain 1-hour contingency measures from the maintenance
SIP and that this is inconsistent with our proposal that States no
longer need contingency measures that are triggered by a finding of
failure to attain the 1-hour standard.
Response: We do not believe this language is inconsistent. Section
51.905(a)(2) addresses contingency measures that were part of a 1-hour
maintenance plan and here we are addressing contingency measures
related to a finding of failure to attain the 1-hour standard or make
reasonable further progress toward attainment of the 1-hour standard.
As Sec. 51.905(a)(2) recognizes, an area that was maintenance for the
1-hour standard may have moved certain ``applicable requirements'' to
the contingency measures portion of the SIP. This section makes clear
that the state is no longer obligated to retain the 1-hour trigger for
such measures, but that these requirements must remain a part of the
SIP because they are ``applicable requirements.'' Because contingency
measures related to failure to attain and failure to make RFP are
typically beyond the reductions achieved through applicable
requirements, such measures could be removed from the SIP. We note,
however, that to the extent a contingency measure is also an
``applicable requirement,'' it cannot be removed from the SIP and we
have added a sentence to Sec. 51.905(e)(2)(iii) to clarify that point.
Comment: Sections 51.905(a)(3)(i) and 51.905(a)(4)(i) (addressing
8-hour attainment areas) both provide that the State may not remove
obligations from the SIP but may relegate them to contingency measures.
Also, Sec. 51.905(b) requires that the Sec. 51.900(f) applicable
requirements may be shifted to contingency measures after the 8-hour
NAAQS is attained but may not be removed from the SIP. This should be
clarified to say that these contingency measures are triggered upon a
violation of the 8-hour standard.
[[Page 30601]]
Response: The commenter is raising issues outside the context of
this proposed rulemaking. We believe that while the regulatory text
could perhaps be more explicit, when read in the context of the entire
Phase 1 Rule, it is clear that the contingency measures will be linked
to the 8-hour standard. We note, however, that areas have flexibility
to identify appropriate triggers. Thus, while they may choose a
violation of the 8-hour NAAQS as a trigger, a different trigger, such
as a certain number of exceedences of the 8-hour NAAQS, may also be
appropriate as the trigger and areas are free to choose such triggers.
Comment: One commenter suggested that Sec. 51.905(e)(2)(iii)
should be revised to read (with new language in italics): ``Upon
revocation of the 1-hour NAAQS for an area, the State is no longer
required to implement contingency measures under section 172(c)(9) or
section 182(c)(9) of the CAA based on a failure to attain the 1-hour
NAAQS or to make reasonable further progress toward attainment of the
1-hour NAAQS.''
Response: As provided above, we agree with some of the
recommendations made by the commenter and disagree with others. We are
revising the language to include the reference to section 182(c)(9). We
are also modifying the language to make clear that areas are no longer
required to include in their SIP, contingency measures that are
triggered by a failure to attain the 1-hour standard or a failure to
make RFP and to indicate that control measures that are also applicable
requirements may not be removed. These modifications make clear that we
are not suggesting that States are not required to implement approved
SIPs, but rather that they may revise their SIPs to remove
discretionary contingency measures linked to these triggers, if they so
choose.
D. Adding Attainment Demonstration to the List of ``Applicable
Requirements'' in Sec. 51.900(f)
1. Background. In the Phase 1 Rule, we provided three options for
areas that had not met their obligation to have a fully approved 1-hour
ozone attainment demonstration SIP. Such areas could submit: (1) A 1-
hour attainment demonstration, (2) an early 8-hour attainment
demonstration, or (3) a RFP plan providing a 5 percent increment of
progress towards the 8-hour NAAQS. While our intent was that an
attainment demonstration was an ``applicable requirement'' for purposes
of anti-backsliding in Sec. 51.905, we neglected to specifically
include the term ``attainment demonstration'' when we defined
``applicable requirements'' in Sec. 51.900(f). Our intent in this rule
is to clarify that an attainment demonstration is an ``applicable
requirement.''
2. Summary of Final Rule. We are adopting the approach we proposed,
which is to add the term ``attainment demonstration'' to Sec.
51.900(f). The term ``attainment demonstration'' will be included in
Sec. 51.900(f) as ``(13) Attainment demonstration or an alternative as
provided under Sec. 51.905(a)(ii).''
3. Comments and Responses. Comment: Two commenters opposed EPA's
including the attainment demonstration in the list of applicable
requirements. One commenter stated that adding attainment demonstration
to the list of applicable requirements is redundant because the final
rule already requires nonattainment areas to submit attainment
demonstrations in Sec. 51.905(a)(1)(ii). The other commenter cross-
referenced their comments on the issue of the date for determining
which requirements remain applicable requirements once the 1-hour
standard is revoked, but did not provide any further explanation.
Response: We agree with the one commenter that it is somewhat
redundant to identify ``attainment demonstration'' in the list of
applicable requirements. However, because our rule provides that the
obligation to submit an attainment demonstration continues to apply
(i.e., remains applicable), we think it is clearer (and removes any
possible ambiguity) to include it with the other obligations that
continue to apply. In addition, we believe that the change is needed to
ensure that the definition of applicable requirement is consistent with
the provisions of Sec. 51.905(a) that retain the obligation for the 1-
hour attainment demonstration for certain 1-hour ozone nonattainment
areas. Regarding the other commenter's opposition based on the same
reasons as they described with regard to the date for determining what
requirements are applicable requirements, we did not find this argument
clear enough for a response. However, to the extent that the
commenter's arguments regarding the date for determining what
requirements are applicable requirements are relevant to their
opposition of listing the attainment demonstration as an applicable
requirement, we incorporate our responses to those arguments for
responding to this comment.
Comment: Two commenters opposed EPA's including the attainment
demonstration in the list of applicable requirements. One commenter
stated that adding attainment demonstration to the list of applicable
requirements is redundant because the final rule already requires
nonattainment areas to submit attainment demonstrations in Sec.
51.905(a)(1)(ii). In opposing the inclusion of the attainment
demonstration in the list of applicable requirements, the other
commenter referred to reasons they provided regarding the date for
determining what requirements are applicable requirements.
Response: We agree with the one commenter that it is somewhat
redundant to identify ``attainment demonstration'' in the list of
applicable requirements. However, because our rule provides that the
obligation to submit an attainment demonstration continues to apply
(i.e., remains applicable), we think it is clearer (and removes any
possible ambiguity) to include it with the other obligations that
continue to apply. In addition, we believe that the change is needed to
ensure that the definition of applicable requirement is consistent with
the provisions of Sec. 51.905(a) that retain the obligation for the 1-
hour attainment demonstration for certain 1-hour ozone nonattainment
areas. Regarding the other commenter's opposition based on the same
reasons as they described with regard to the date for determining what
requirements are applicable requirements, we did not find this argument
clear enough for a response. However, to the extent that the
commenter's arguments regarding the date for determining what
requirements are applicable requirements are relevant to their
opposition of listing the attainment demonstration as an applicable
requirement, our responses to those arguments above also apply here.
Comment: One commenter indicated that, while the proposal to add
attainment demonstration to the list of applicable requirements would
be more consistent with the remainder of the anti-backsliding rule, the
commenter recommended that the control strategy that is used to
demonstrate attainment of the 1-hour standard also be listed as an
applicable requirement.
Response: EPA disagrees. A control strategy is part of the
attainment demonstration that EPA would approve into a SIP and
therefore does not need to be listed separately in addition to the
attainment demonstration. Furthermore, the Phase 1 Rule also provided
alternative means of satisfying the attainment demonstration
requirement (i.e., an advance increment of progress of 5 percent
emission reduction or an early 8-hour ozone attainment demonstration).
Thus, EPA believes areas should have the option under the
[[Page 30602]]
regulation of submitting these alternatives rather than a control
strategy for the 1-hour NAAQS as an applicable requirement. Finally, if
we did as the commenter suggested, the effect would be to convert many
``discretionary'' control measures to applicable requirements. We have
never suggested (and do not believe it is required) that State
discretion to substitute for non-mandatory control measures should be
restricted.
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and, therefore, subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, it has been
determined that this final rule is not a ``significant regulatory
action.'' The reconsideration put forth today does not substantially
change the Phase 1 Rule. With respect to one issue, we are retaining
the position we adopted in the Phase 1 Rule. As to the second issue, we
are modifying the date in this rule so that it is consistent with our
original proposal. Finally, we are promulgating regulatory text to make
two clarifications to the final rule. We believe that these provisions
do not substantially modify the intent of the final rule but rather
merely clarify two issues.
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
Burden means the total time, effort, or financial resources expended by
persons to generate, maintain, retain, or disclose or provide
information to or for a Federal agency. This includes the time needed
to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act generally requires an Agency to
prepare a regulatory flexibility analysis of any rule subject to notice
and comment rulemaking requirements under the Administrative Procedures
Act or any other statute unless the Agency certifies the rule will not
have a significant economic impact on a substantial number of small
entities. Small entities include small businesses, small organizations,
and small governmental jurisdictions.
For purposes of assessing the impacts of today's final rule on
small entities, small entity is defined as: (1) A small business that
is a small industrial entity as defined in the U.S. Small Business
Administration (SBA) size standards. (See 13 CFR part 121.); (2) a
governmental jurisdiction that is a government of a city, county, town,
school district or special district with a population of less than
50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
After considering the economic impacts of today's final rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This final
rule will not impose any requirements on small entities. The Phase 1
Rule interpreted the obligations required of 1-hour ozone nonattainment
areas for purposes of anti-backsliding once the 1-hour NAAQS is
revoked. This final reconsideration addresses two aspects of the Phase
1 Rule that the Agency was requested to reconsider and clarifies two
other aspects of the Phase 1 Rule. Since as noted that final rule, the
Phase 1 Rule does not impose requirements on small entities our further
action on aspects of that rule also does not impose requirements on
small entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and Tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
1 year.
Before promulgating an EPA rule for which a written statement is
needed, section 205 of the UMRA generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including Tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
The EPA has determined that this final rule does not contain a
Federal mandate that may result in expenditures of $100 million or more
for State, local, and Tribal governments, in the aggregate, or the
private sector in any 1 year. In promulgating the Phase 1 Rule,
[[Page 30603]]
we concluded that it was not subject to the requirements of sections
202 and 205 of the UMRA. For those same reasons, our reconsideration
and clarification of several aspects of that rule is not subject to the
UMRA.
The EPA has determined that this final rule contains no regulatory
requirements that may significantly or uniquely affect small
governments, including Tribal governments. Nonetheless, EPA carried out
consultations with governmental entities affected by this rule.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that 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.''
This final rule 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,
as specified in Executive Order 13132. This final reconsideration
addresses two aspects of the Phase 1 Rule that the Agency was requested
to reconsider and clarifies two other aspects of the Phase 1 Rule. For
the same reasons stated in the Phase 1 Rule, Executive Order 13132 does
not apply to this proposed rule.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by Tribal officials in the development of regulatory
policies that have Tribal implications.'' This final rule does not have
``Tribal implications'' as specified in Executive Order 13175.
The purpose of this final rule is taking comment on two issues from
the Phase 1 Rule that EPA agreed to grant for reconsideration, in
addition to two other issues from the Phase 1 Rule. These issues
concern the implementation of the 8-hour ozone standard in areas
designated nonattainment for that standard. The CAA provides for States
and Tribes to develop plans to regulate emissions of air pollutants
within their jurisdictions. The Tribal Authority Rule (TAR) gives
Tribes the opportunity to develop and implement CAA programs such as
the 8-hour ozone NAAQS, but it leaves to the discretion of the Tribes
whether to develop these programs and which programs, or appropriate
elements of a program, they will adopt.
For the same reasons stated in the Phase 1 Rule, this final rule
does not have Tribal implications as defined by Executive Order 13175.
It does not have a substantial direct effect on one or more Indian
Tribes, since no Tribe has implemented a CAA program to attain the 8-
hour ozone NAAQS at this time. Furthermore, this final rule does not
affect the relationship or distribution of power and responsibilities
between the Federal government and Indian Tribes. The CAA and the TAR
establish the relationship of the Federal government and Tribes in
developing plans to attain the NAAQS, and this final rule does nothing
to modify that relationship. Because this final rule does not have
Tribal implications, Executive Order 13175 does not apply.
While the final rule would have Tribal implications upon a Tribe
that is implementing such a plan, it would not impose substantial
direct costs upon it nor would it preempt Tribal law.
Although Executive Order 13175 does not apply to this final rule,
EPA consulted with Tribal officials in developing this final rule. The
EPA has supported a national ``Tribal Designations and Implementation
Work Group'' which provides an open forum for all Tribes to voice
concerns to EPA about the designation and implementation process for
the 8-hour ozone standard.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045: ``Protection of Children From Environmental
Health and Safety Risks'' (62 FR 19885, April 23, 1997) applies to any
rule that (1) is determined to be ``economically significant'' as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe may have
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This final rule addresses two aspects of the Phase 1 Rule that the
Agency was requested to reconsider and clarifies two other aspects of
the rule. The final rule is not subject to Executive Order 13045
because the Agency does not have reason to believe the environmental
health risks or safety risks addressed by this action present a
disproportionate risk to children. Nonetheless, we have evaluated the
environmental health or safety effects of the 8-hour ozone NAAQS on
children. The results of this evaluation are contained in 40 CFR part
50, National Ambient Air Quality Standards for Ozone, Final Rule (62 FR
38855-38896; specifically, 62 FR 38854, 62 FR 38860 and 62 FR 38865).
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This final rule is not a ``significant energy action'' as defined
in Executive Order 13211, ``Actions That Significantly Affect Energy
Supply, Distribution, or Use,'' (66 FR 28355, May 22, 2001) because it
is not likely to have a significant adverse effect on the supply,
distribution, or use of energy.
Information on the methodology and data regarding the assessment of
potential energy impacts is found in Chapter 6 of U.S. EPA 2002, Cost,
Emission Reduction, Energy, and Economic Impact Assessment of the
Proposed Rule Establishing the Implementation Framework for the 8-Hour,
0.08 ppm Ozone National Ambient Air Quality Standard, prepared by the
Innovative Strategies and Economics Group, Office of Air Quality
Planning and Standards, Research Triangle Park, N.C., April 24, 2003.
I. National Technology Transfer Advancement Act
Section 12(d) of the National Technology Transfer Advancement Act
of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards (VCS) in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by VCS bodies. The NTTAA directs EPA to provide Congress,
through OMB, explanations when the Agency decides not to use available
and applicable VCS.
This final rulemaking does not involve technical standards.
Therefore,
[[Page 30604]]
EPA is not considering the use of any VCS.
The EPA will encourage the States and Tribes to consider the use of
such standards, where appropriate, in the development of the
implementation plans.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 requires that each Federal agency make
achieving environmental justice part of its mission by identifying and
addressing, as appropriate, disproportionate high and adverse human
health or environmental effects of its programs, policies, and
activities on minorities and low-income populations.
The EPA concluded that the Phase 1 Rule should not raise any
environmental justice issues; for the same reasons, this final rule
should not raise any environmental justice issues. The health and
environmental risks associated with ozone were considered in the
establishment of the 8-hour, 0.08 ppm ozone NAAQS. The level is
designed to be protective with an adequate margin of safety. The final
rule provides a framework for improving environmental quality and
reducing health risks for areas that may be designated nonattainment.
K. Congressional Review Act
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. The EPA will submit a report containing this rule 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). This rule will be effective June 27, 2005.
L. Petitions for 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 District of Columbia Circuit by July 25, 2005. Filing a petition
for reconsideration by the Administrator of this final rule does not
affect the finality of this rule 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 CAA section 307(b)(2).
M. Determination Under Section 307(d)
Pursuant to section 307(d)(1)(U) of the CAA, the Administrator
determines that this action is subject to the provisions of section
307(d). Section 307(d)(1)(U) provides that the provisions of section
307(d) apply to ``such other actions as the Administrator may
determine.'' While the Administrator did not make this determination
earlier, the Administrator believes that all of the procedural
requirements, e.g., docketing, hearing and comment periods, of section
307(d) have been complied with during the course of this
reconsideration rulemaking.
List of Subjects in 40 CFR Part 51
Environmental protection, Air pollution control, Intergovernmental
relations, Ozone, Particulate matter, Transportation, Volatile organic
compounds.
Dated: May 20, 2005.
Stephen L. Johnson,
Administrator.
0
For the reasons stated in the preamble, Title 40, Chapter I of the Code
of Federal Regulations, is amended as follows:
PART 51--[AMENDED]
0
1. The authority citation for part 51 continues to read as follows:
Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.
Subpart X--Provisions for Implementation of 8-Hour Ozone National
Ambient Air Quality Standard
0
2. Section 51.900 is amended by revising paragraph (f) introductory
text and adding paragraph (f)(13) to read as follows:
Sec. 51.900 Definitions.
* * * * *
(f) Applicable requirements means for an area the following
requirements to the extent such requirements apply or applied to the
area for the area's classification under section 181(a)(1) of the CAA
for the 1-hour NAAQS at designation for the 8-hour NAAQS:
* * * * *
(13) Attainment demonstration or an alternative as provided under
Sec. 51.905(a)(1)(ii).
* * * * *
0
3. Section 51.905 is amended by revising paragraph (e)(2)(ii) and by
adding paragraph (e)(2)(iii) as follows:
Sec. 51.905 How do areas transition from the 1-hour NAAQS to the 8-
hour NAAQS and what are the anti-backsliding provisions?
* * * * *
(e) * * *
(2) * * *
(ii) Upon revocation of the 1-hour NAAQS for an area, the State is
no longer required to include in its SIP provisions for CAA section
181(b)(4) and 185 fees on emissions sources in areas classified as
severe or extreme based on a failure to meet the 1-hour attainment
date. Upon revocation of the 1-hour NAAQS in an area, the State may
remove from the SIP for the area the provisions for complying with the
section 185 fee provision as it applies to the 1-hour NAAQS.
(iii) Upon revocation of the 1-hour NAAQS for an area, the State is
no longer required to include in its SIP contingency measures under CAA
sections 172(c)(9) and 182(c)(9) that would be triggered based on a
failure to attain the 1-hour NAAQS or to make reasonable further
progress toward attainment of the 1-hour NAAQS. A State may not remove
from the SIP a contingency measure that is an applicable requirement.
* * * * *
[FR Doc. 05-10580 Filed 5-25-05; 8:45 am]
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