[Federal Register: November 29, 2006 (Volume 71, Number 229)]
[Rules and Regulations]
[Page 69022-69028]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29no06-7]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[EPA-HQ-OAR-2003-0090; FRL-8249-4]
RIN 2060-AN90
Final Extension of the Deferred Effective Date for 8-Hour Ozone
National Ambient Air Quality Standards for Early Action Compact Areas
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA is finalizing the extension of the deferred effective
date of air quality designations for 14 areas of the country that have
entered into Early Action Compacts. Early Action Compact areas have
agreed to reduce ground-level ozone pollution earlier than the Clean
Air Act (CAA) requires. On April 30, 2004, EPA published an action
designating all areas of the country for the 8-hour ozone National
Ambient Air Quality Standards (NAAQS). In the designation rule, EPA
deferred the effective date of the nonattainment designation for 14
areas that had entered into Early Action Compacts until September 30,
2005. On August 29, 2005, EPA deferred the nonattainment designation
for these areas a second time until December 31, 2006. The EPA is now
extending the deferred effective date of the nonattainment designation
for 13 Early Action Compact areas until April 15, 2008, and for the
Denver Early Action Compact area until July 1, 2007.
EFFECTIVE DATE: This final rule is effective on December 29, 2006.
ADDRESSES: The EPA has established a docket for this action under
Docket ID no. EPA-HQ-OAR-2003-0090. All documents in the docket are
listed on the http://www.regulations.gov Web site. 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 material, such as
copyrighted material is not placed on the Internet and will be publicly
available only in hard copy form. Publicly available docket materials
are available either electronically through http://www.regulations.gov
or in hard copy at the Docket, EPA/DC, EPA West, Room 3334, 1301
Constitution Ave., Northwest, 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 telephone number for the Office of Air and
Radiation Docket is (202) 566-1742. In addition, we have placed a copy
of the rule and a variety of materials relevant to Early Action Compact
areas on EPA's Web site at http://www.epa.gov/ttn/naaqs/ozone/eac/.
Note: The EPA Docket Center suffered damage due to flooding
during the last week of June 2006. The Docket Center is continuing
to operate. However, during the cleanup, there will be temporary
changes to Docket Center telephone numbers, addresses, and hours of
operation for people who wish to visit the Public Reading Room to
view documents. Consult EPA's Federal Register notice at 71 FR 38147
(July 5, 2006) or the EPA Web site at http://www.epa.gov/epahome/dockets.htm
for current information on docket status, locations and
telephone numbers.
FOR FURTHER INFORMATION CONTACT: Ms. Barbara Driscoll, Office of Air
Quality Planning and Standards, U.S. Environmental Protection Agency,
Mail Code C539-04, Research Triangle Park, NC 27711, phone number (919)
54l-1051 or by e-mail at: driscoll.barbara@epa.gov or Mr. David Cole,
Office of Air Quality Planning and Standards, U.S. Environmental
Protection Agency, Mail Code C304-05, Research Triangle Park, NC 27711,
phone number (919) 54l-5565 or by e-mail at: cole.david@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
Does This Action Apply to Me?
This action applies only to the 14 areas that entered into Early
Action compacts and for which the effective date of the nonattainment
designation was deferred. A list of these areas is included in Table 1.
The information presented in this preamble is organized as follows:
Outline
I. General Information
Does this Action Apply to Me?
II. What Is the Purpose of This Document?
III. What Action has EPA Taken to Date for Early Action Compact
Areas?
A. What progress are compact areas making toward completing
their milestones?
B. What is this final action for compact areas?
C. What is EPA's schedule for taking further action to further
defer the effective date of nonattainment designation for compact
areas?
D. What comments did EPA receive on the August 3, 2006 proposal
to extend the deferral of the effective date of the nonattainment
designations for 14 Early Action Compact areas?
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
[[Page 69023]]
K. Congressional Review Act
L. Petitions for Judicial Review
II. What is the Purpose of This Document?
The purpose of this document is to finalize the extension of the
deferred effective date of the 8-hour ozone nonattainment designations
for 14 participants in Early Action Compacts. The new effective
designation date for 13 areas is April 15, 2008. The effective date of
designation for the Denver EAC area is extended until July 1, 2007.
III. What Action has EPA Taken to Date for Early Action Compact Areas?
This section discusses EPA's actions to date with respect to
deferring the effective date of nonattainment designations for certain
areas of the country that are participating in the Early Action Compact
program. The EPA's April 30, 2004 air quality designation rule (69 FR
23858) provides a description of the compact approach, the requirements
for areas participating in the program and the impacts of the program
on those areas.
On December 31, 2002, we entered into compacts with 33 communities.
To receive the first deferral, these Early Action Compact areas agreed
to reduce ground-level ozone pollution earlier than the CAA would
require. On December 16, 2003 (68 FR 70108), we published a proposed
rule to defer until September 30, 2005, the effective date of
designation for Early Action Compact areas that did not meet the 8-hour
ozone NAAQS. Fourteen of the 33 compact areas did not meet the 8-hour
ozone NAAQS.
The final designation rule published April 30, 2004 (69 FR 23858),
as amended June 18, 2004 (69 FR 34080), included the following actions
for compact areas: Deferred the effective date of nonattainment
designation for 14 compact areas until September 30, 2005; detailed the
progress compact areas had made toward completing their milestones;
described the actions required for compact areas in order to remain
eligible for a deferred effective date for a nonattainment designation;
detailed EPA's schedule for taking further action to determine whether
to further defer the effective date of nonattainment designations; and
described the consequences for compact areas that do not meet a
milestone. In the April 2004, action, we also discussed three compact
areas which did not meet the March 31, 2004, milestone; Knoxville,
Memphis, and Chattanooga, Tennessee. Knoxville and Memphis were
designated nonattainment effective June 15, 2004. Chattanooga was later
determined to have met the March 31, 2004, milestone, and we deferred
the designation date until September 30, 2005, (69 FR 34080). This
brought the number of participating compact areas to 31. Since then 2
additional areas, Haywood and Putnam Counties, Tennessee have withdrawn
from the program leaving the participating number of compact areas at
29.
On August 29, 2005, we published a final rule extending the
deferred effective date of designation from September 30, 2005, to
December 31, 2006, for the same 14 compact areas. In order to receive
the second deferral, Early Action Compact areas needed to submit a
State Implementation Plan with locally adopted measures by December 31,
2004. The EPA approved the SIP revisions as meeting the EAC Protocol
and EPA's EAC regulations at 40 CFR 81.300, and these approvals were
the basis for extending the deferred effective date until December 31,
2006. Information on local measures, SIP submittals and background on
the Early Action Compact program may be found on EPA's Web site at
http://www.epa.gov/ttn/naaqs/ozone/eac/.
A. What progress are compact areas making toward completing their
milestones?
In general, the remaining 29 compact areas have made satisfactory
progress toward timely completion of their milestones. All compact
areas were required to submit two progress reports, one by December 30,
2005, and the other by June 30, 2006. In these progress reports, the
States provided information on progress towards implementing local
control measures that were incorporated in their SIPs. Each of the EAC
areas submitted the required progress reports and these reports are
available at http://www.epa.gov/ttn/naaqs/ozone/eac/.
After review by EPA, all the EAC areas were found to be in
compliance with the requirements of the EAC Protocol and the individual
State Implementation Plans, however, issues were noted by the State of
Colorado with the Denver area regarding emissions from oil and gas
exploration and production condensate tanks. Based on a report and
action plan submitted by the State of Colorado to EPA, dated June 2,
2006, the State provided information that indicated volatile organic
compound (VOC) emissions from oil and gas operations within the Denver
EAC area were higher than had been estimated in the attainment
demonstration modeling. Subsequent to this June 2, 2006 report, the
State of Colorado has embarked on rulemaking activities to amend
Colorado's Regulation No. 7 (the State's regulation for the control of
VOCs) to require additional emission reductions from oil and gas
exploration and production condensate tanks to achieve the level of
reductions the State relied on in the EPA-approved modeled attainment
demonstration. Further discussion on this issue is provided below in
section D (response to comments).
B. What is this final action for compact areas?
We are extending the deferred effective date of the nonattainment
designation for 14 compact areas. In consideration of the progress
reported by the EAC areas, we have concluded that 13 of the 14 areas
are eligible for a final deferral of their nonattainment designation
for the 8-hour ozone NAAQS to April 15, 2008. See 40 CFR
81.300(e)(4)(ii). Therefore, we are further extending until April 15,
2008 the effective date of the 8-hour ozone nonattainment designation
for the compact area counties listed in Table 1 below, with the
exception of the Denver EAC area, which is extended only to July 1,
2007. We are revising 40 CFR part 81 to reflect these extensions.
Table 1.--Compact Areas Which Qualify for a Deferred Effective Date of
April 15, 2008 \1\
[Note: Name of designated 8-hour ozone nonattainment area is in
parentheses]
------------------------------------------------------------------------
Counties which
Counties with are part of
Compact area designation compacts and are
State (designated deferred to designated
area) April 15, 2008 unclassifiable/
attainment
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EPA Region 3
------------------------------------------------------------------------
VA................ Northern Winchester City,
Shenandoah Frederick
Valley Region County.
(Frederick
County, VA),
adjacent to
Washington, DC-
MD-VA.
[[Page 69024]]
VA................ Roanoke Area Roanoke County,
(Roanoke, VA). Botetourt
County, Roanoke
City, Salem
City.
MD................ Washington Washington
County County.
(Washington
County
(Hagerstown,
MD), adjacent
to Washington,
DC-MD-VA.
WV................ The Eastern Pan Berkeley County,
Handle Region, Jefferson
(Berkeley & County.
Jefferson
Counties, WV),
Martinsburg
area.
------------------------------------------------------------------------
EPA Region 4
------------------------------------------------------------------------
NC................ Unifour (Hickory- Catawba County,
Morganton- Alexander
Lenoir, NC). County, Burke
County (part),
Caldwell County
(part).
NC................ Triad Randolph County, Surry
(Greensboro- Forsyth County, County,Yadkin
Winston-Salem- Davie County, County, Stokes
High Point, NC). Alamance County.
County, Caswell
County,
Davidson
County,
Guilford
County,
Rockingham
County.
NC................ Cumberland Cumberland
County County.
(Fayetteville,
NC).
SC................ Appalachian--A Spartanburg Cherokee County,
(Greenville- County, Pickens County,
Spartanburg- Greenville Oconee County.
Anderson, SC). County,
Anderson County.
SC................ Central Richland County Newberry County,
Midlands--I (part), Fairfield
Columbia area. Lexington County.
County (part).
TN/GA............. Chattanooga Hamilton County, Marion County,
(Chattanooga, TN, Meigs TN, Walker
TN-GA). County, TN, County, GA.
Catoosa County,
GA.
TN................ Nashville Davidson County, Robertson
(Nashville, TN). Rutherford County,
County, Cheatham
Williamson County, Dickson
County, Wilson County.
County, Sumner
County.
TN................ Johnson City- Sullivan Co, TN, Washington Co,
Kingsport- Hawkins County, TN, Unicoi
Bristol Area TN. County, TN,
(TN portion Carter County,
only). TN, Johnson
County, TN.
------------------------------------------------------------------------
EPA Region 6
------------------------------------------------------------------------
TX................ San Antonio..... Bexar County, Wilson County.
Comal County,
Guadalupe
County.
------------------------------------------------------------------------
EPA Region 8
------------------------------------------------------------------------
CO................ Denver \1\ Denver County,
(Denver-Boulder- Boulder County
Greeley-Ft. (includes part
Collins-Love, of Rocky Mtn
CO). Nat.Park),
Jefferson
County, Douglas
County,
Broomfield,
Adams County,
Arapahoe
County, Larimer
County (part),
Weld County
(part).
------------------------------------------------------------------------
\1\ Effective date of nonattainment designation for Denver EAC is
extended to July 1, 2007.
C. What is EPA's schedule for taking further action to further defer
the effective date of nonattainment designation for compact areas?
The EAC areas have one remaining milestone which is to demonstrate
attainment with the 8-hour ozone NAAQS by December 31, 2007. No later
than April 15, 2008, we will determine whether the compact areas that
received a deferred effective date of April 15, 2008, have attained the
8-hour ozone NAAQS by December 31, 2007, and have met all compact
milestones. If the area has not attained the standard, the
nonattainment designation will take effect. If the compact area has
attained the standard, EPA will designate the area as attainment. Any
compact area that has not attained the NAAQS and thus has an effective
nonattainment designation will be subject to the full planning
requirements of title I, part D of the CAA, and the area will be
required to submit a revised attainment demonstration SIP within 1 year
of the effective date of designation. As provided above, the State of
Colorado is undertaking rulemaking to address shortfalls in VOC
emission reductions for the Denver EAC. These rulemaking activities are
designed to achieve greater VOC emission reductions from the oil and
gas industry and we also note, the rule revisions contain a compliance
date of May 1, 2007, which is just before the beginning of the Colorado
high ozone season. Once the State's rulemaking actions are complete,
the rule revisions will be submitted to EPA for our approval.
D. What comments did EPA receive on the August 3, 2006 proposal to
extend the deferral of the effective date of the nonattainment
designations for 14 Early Action Compact areas?
We received six comments on the proposed rule to extend the
deferred effective date of the nonattainment designations for 14 Early
Action Compact areas to April 15, 2008. We have responded to the
comments in this section.
Comment: Two commenters expressed support for the compact
[[Page 69025]]
process, the goal of clean air sooner, the incentives and flexibility
the program provides for encouraging early reductions of ozone-forming
pollution, and the deferred effective date of nonattainment
designation. However, a number of commenters opposed the Early Action
Compact program. Several of these commenters expressed concern about
various legal aspects of the program, primarily the deferral of the
effective date of the nonattainment designation for these areas.
Although some of these commenters were supportive of the goal of
proactively addressing the public health concerns associated with ozone
pollution, the commenters state that the program is not authorized by
the CAA. All of these commenters indicated that EPA lacks authority
under the CAA to defer the effective date of a nonattainment
designation. In addition, these commenters state that EPA lacks
authority to enter into Early Action Compacts with areas and lacks
authority to allow areas to be relieved of obligations under title I,
part D of the CAA while these areas are violating the 8-hour ozone
standard or are designated nonattainment for that standard.
Response: We have determined that the compact program, as designed,
gives local areas the flexibility to develop their own approach to
meeting the 8-hour ozone standard. The participating communities are
serious in their commitment and have made good progress implementing
State and local measures for controlling emissions from local sources
earlier than the CAA would otherwise require. By involving diverse
stakeholders, including representatives from industry, local and State
governments, and local environmental and citizens groups, a number of
these communities are, for the first time, cooperating on a regional
basis to solve environmental problems that affect the health and
welfare of their citizens. People living in these areas realize
reductions in pollution levels sooner and will enjoy the health
benefits of cleaner air sooner than might otherwise occur. With respect
to the commenter who attached comments that were submitted on EPA's
initial proposal to defer the effective date of a nonattainment
designation of EAC areas meeting compact milestones, we refer back to
our response to those comments in the April 2004 designation rule (69
FR 23858).
Comment: Three commenters expressed specific concerns about
deferring the effective date of the nonattainment designation for the
Denver metropolitan EAC area. The commenters noted that the Denver EAC
area does not comply with its commitments to address ozone-forming
pollution from the oil and gas sector. Two of these commenters stated
that emissions from these operations are higher than the State
originally projected; however, they acknowledged that Colorado is
currently taking steps to revise control requirements for these
operations to address the problem. Commenters believed that it was
inappropriate for EPA to proceed at this time with granting the Denver
EAC area a final deferred nonattainment effective date to April 15,
2008, while the necessary revisions to Regulation No. 7, the State of
Colorado's regulation for the control of VOCs which are designed to
require additional VOC emission reductions from oil and gas condensate
tanks would still be under consideration by both the Colorado Air
Quality Control Commission (AQCC) and State Legislature. In addition,
the commenters noted that air quality monitoring data for the 2006
ozone season indicate that the area may not be complying with the 8-
hour ozone standard through 2007.
Response: The commenters were concerned with increased VOC
emissions from oil and gas exploration and production condensate tanks.
Based on a report and action plan submitted by the State of Colorado to
EPA, dated June 2, 2006, the State provided information that indicated
VOC emissions from oil and gas operations within the Denver EAC area
were higher than had been relied on in the attainment demonstration
modeling. With rule revisions being proposed before the Colorado AQCC
on August 17, 2006, the State of Colorado has initiated public
rulemaking activities to amend Colorado's Regulation No. 7 to require
additional emission reductions from oil and gas exploration and
production condensate tanks to achieve the level of reductions relied
on in the EPA-approved modeled attainment demonstration. However, by
State rulemaking procedures, the Regulation No. 7 revisions will not be
considered for adoption by the AQCC until November 16 or 17, 2006, and
by Colorado State law, the Regulation No. 7 revisions will then have to
be considered for adoption by the Colorado State Legislature which will
only be in session between January 1, 2007 to the first week of May,
2007. This presents a potential dilemma for EPA, as we currently
consider granting the Denver EAC area a final deferred nonattainment
effective date to April 15, 2008, in that the necessary revisions to
Regulation No. 7, that are designed to require additional VOC emission
reductions from oil and gas condensate tanks, would still be under
consideration by both the AQCC and State Legislature.
The EPA agrees with the commenters' concern regarding the timing of
a final deferral of the Denver EAC's nonattainment effective date and
potential conflict with the State's fall 2006 and spring 2007 State
Implementation Plan (SIP) rulemaking process time frame. However, we
also believe that beginning the rulemaking process to address the
shortfall in reductions, the area has demonstrated its commitment to
ensuring the terms of the EAC process will be met. Therefore, to
accommodate the public rulemaking activities of the Colorado AQCC and
Colorado State Legislature and to allow the Denver area to remain in
the EAC program, with this final rule EPA is granting the Denver area a
deferred effective date of nonattainment only to July 1, 2007.
Following the rulemaking actions by the Colorado AQCC and Colorado
State Legislature, EPA anticipates that it will undertake further
rulemaking action for the Denver EAC to determine whether to extend the
deferred nonattainment effective date beyond July 1, 2007. A likely
schedule for EPA's subsequent rulemaking action is:
--March 1, 2007; EPA proposes whether to extend the final deferred
effective date for the Denver EAC to April 15, 2008. This proposed rule
would reflect the actions taken by the Colorado AQCC and then current
actions by the Colorado State Legislature. This proposal would open a
30-day public comment period.
--April 1, 2007; the 30-day public comment period closes.
--April 2007; EPA evaluates all public comments.
--May 1, 2007; EPA prepares a final rule and starts its internal
concurrence process.
--On or about May 25, 2007; Signature on the final rule by the
Administrator.
--June 1, 2007; Publication in the Federal Register of the final rule
and that rule will have a 30-day effective date.
The above schedule would allow both the Colorado AQCC and Colorado
State Legislature until late April to complete their respective
functions and also allow EPA appropriate time to complete a final
deferral of the Denver EAC nonattainment effective date to April 15,
2008, if EPA determines that is the appropriate action to take.
With respect to the commenters' concerns regarding the ambient air
quality monitoring data for the Denver
[[Page 69026]]
EAC area, EPA agrees that several exceedances of the 8-hour ozone
National Ambient Air Quality Standard (NAAQS) were observed in 2006.
However, even with these exceedances none of the ambient air quality
monitors in the 8-hour ozone monitoring network recorded a violation of
the 8-hour ozone NAAQS. Further, we note that the ambient air quality
monitors for the Denver EAC area have shown attainment of the 8-hour
ozone NAAQS for the periods, 2002 through 2004, 2003 through 2005, and
2004 through 2006. Although Denver has not violated the standard for
the past three 3-year periods, EPA notes that air quality in the area
remains very close to the standard, indicating that the additional
emission reductions being considered now by the State are important to
ensure that air quality in the area remains below the level of the
standard. EPA notes and appreciates commenters' concerns for the
potential for a violation of the 8-hour ozone NAAQS during the upcoming
ozone season of 2007.
IV. Statutory and Executive Order Reviews
This action finalizes the extension of the deferred effective date
of the nonattainment designation for 13 compact areas until April 15,
2008. This action also finalizes the extension of the deferred
effective date of the nonattainment designation for the Denver compact
area until July 1, 2007.
A. Executive Order 12866: Regulatory Planning and Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and
is therefore not subject to review under the EO.
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.
This final rule does not require the collection of any information.
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 (RFA) 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 this final rule on small
entities, small entity is defined as: (1) A small business that is a
small industrial entity as defined in the Small Business
Administration's (SBA) regulations at 13 CFR 121.201; (2) a small
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 this final rule on small
entities, I certify that this rule 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. Rather, this rule would
extend the deferred effective date of the nonattainment designation for
areas that implement control measures and achieve emissions reductions
earlier than otherwise required by the CAA in order to attain the 8-
hour ozone NAAQS.
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 this final rule, EPA is deferring the
effective date of nonattainment designations for certain areas that
have entered into compacts with us. Thus, this final rulemaking is not
subject to the requirements of sections 202 and 205 of the UMRA.
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.''
[[Page 69027]]
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. The CAA establishes the scheme
whereby States take the lead in developing plans to meet the NAAQS.
This final rule would not modify the relationship of the States and EPA
for purposes of developing programs to implement the NAAQS. Thus,
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. 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 or has participated in a compact.
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.
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that are based on health or safety risks, such that
the analysis required under section 5-501 of the Order has the
potential to influence the regulation. This final rule is not subject
to Executive Order 13045 because it does not establish an environmental
standard intended to mitigate health or safety risks.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a
significant regulatory action under Executive Order 12866.
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 rule does not involve technical standards. Therefore,
EPA is not considering the use of any VCS. The EPA will encourage
States that have compact areas to consider the use of such standards,
where appropriate, in the development of their SIPs.
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 believes that 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.
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 December 29, 2006.
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 December 29, 2006. 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 must 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).
List of Subjects in 40 CFR Part 81
Environmental protection, Air pollution control, Reporting and
recordkeeping requirements.
Authority: 42 U.S.C. 7408; 42 U.S.C. 7410; 42 U.S.C. 7501-7511f;
42 U.S.C. 7601(a)(1).
Dated: November 22, 2006.
Stephen L. Johnson,
Administrator.
0
40 CFR Part 81 is amended as follows:
PART 81--[AMENDED]
0
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Subpart C--Section 107 Attainment Status Designations
0
2. Section 81.300 is amended by revising paragraphs (e)(3)(i) and
(e)(3)(ii)(B) and (C) to read as follows:
Sec. 81.300 Scope.
* * * * *
(e) * * *
(3) * * *
(i) General. With the exception of the Denver area subject to a
compact and notwithstanding clauses (i) through (iv)
[[Page 69028]]
of section 107(d)(1)(B) of the Clean Air Act (42 U.S.C. 7407(d)(1)(B)),
the Administrator shall defer until April 15, 2008 the effective date
of a nonattainment designation of any area subject to a compact that
does not meet (or that contributes to ambient air quality in a nearby
area that does not meet) the 8-hour ozone national ambient air quality
standard if the Administrator determines that the area subject to a
compact has met the requirements in paragraphs (e)(2)(i) through (iii)
of this section. The Administrator shall defer until July 1, 2007 the
effective date of a nonattainment designation of the Denver area.
* * * * *
(ii) * * *
(B) Prior to expiration of the deferred effective date on April 15,
2008, if the Administrator determines that an area or the State subject
to a compact has not met either requirement in paragraphs (e)(2)(iv)
and (v) of this section, the nonattainment designation shall become
effective as of the deferred effective date, unless EPA takes
affirmative rulemaking action to further extend the deadline.
(C) If the Administrator determines that an area subject to a
compact and/or State has not met any requirement in paragraphs
(e)(2)(iv) through (vi) of this section, the nonattainment designation
shall become effective as of the deferred effective date, unless EPA
takes affirmative rulemaking action to further extend the deadline.
* * * * *
0
3. In Sec. 81.306, the table entitled ``Colorado-Ozone (8-Hour
Standard)'' is amended by revising footnote 2 to read as follows:
Sec. 81.306 Colorado.
* * * * *
Colorado-Ozone (8-Hour Standard)
* * * * *
\2\ Early Action Compact Area, effective date deferred until
July 1, 2007.
---------------------------------------------------------------------------
\2\ Effective date of nonattainment designation for Denver EAC
is extended to July 1, 2007.
---------------------------------------------------------------------------
* * * * *
0
4. In Sec. 81.311, the table entitled ``Georgia-Ozone (8-Hour
Standard)'' is amended by revising footnote 2 to read as follows:
Sec. 81.311 Georgia.
Georgia-Ozone (8-Hour Standard)
* * * * *
\2\ Early Action Compact Area, effective date deferred until
April 15, 2008.
* * * * *
0
5. In Sec. 81.321, the table entitled ``Maryland-Ozone (8-Hour
Standard)'' is amended by revising footnote 2 to read as follows:
Sec. 81.321 Maryland.
* * * * *
Maryland-Ozone (8-Hour Standard)
* * * * *
\2\ Early Action Compact Area, effective date deferred until
April 15, 2008.
* * * * *
0
6. In Sec. 81.334, the table entitled ``North Carolina-Ozone (8-Hour
Standard)'' is amended by revising footnote 2 to read as follows:
Sec. 81.334 North Carolina.
* * * * *
North Carolina-Ozone (8-Hour Standard)
* * * * *
\2\ Early Action Compact Area, effective date deferred until
April 15, 2008.
* * * * *
0
7. In Sec. 81.341, the table entitled ``South Carolina-Ozone (8-Hour
Standard)'' is amended by revising footnote 2 to read as follows:
Sec. 81.341 South Carolina.
* * * * *
South Carolina-Ozone (8-Hour Standard)
* * * * *
\2\ Early Action Compact Area, effective date deferred until
April 15, 2008.
* * * * *
0
8. In Sec. 81.343, the table entitled ``Tennessee-Ozone (8-Hour
Standard)'' is amended by revising footnote 2 to read as follows:
Sec. 81.343 Tennessee.
* * * * *
Tennessee-Ozone (8-Hour Standard)
* * * * *
\2\ Early Action Compact Area, effective date deferred until
April 15, 2008.
* * * * *
0
9. In Sec. 81.344, the table entitled ``Texas-Ozone (8-Hour
Standard)'' is amended by revising footnote 2 to read as follows:
Sec. 81.344 Texas.
* * * * *
Texas-Ozone (8-Hour Standard)
* * * * *
\2\ Early Action Compact Area, effective date deferred until
April 15, 2008.
* * * * *
0
10. In Sec. 81.347, the table entitled ``Virginia-Ozone (8-Hour
Standard)'' is amended by revising footnote 2 to read as follows:
Sec. 81.347 Virginia.
* * * * *
Virginia-Ozone (8-Hour Standard)
* * * * *
\2\ Early Action Compact Area, effective date deferred until
April 15, 2008.
* * * * *
0
11. In Sec. 81.349, the table entitled ``West Virginia-Ozone (8-Hour
Standard)'' is amended by revising footnote 2 to read as follows:
Sec. 81.349 West Virginia.
* * * * *
West Virginia-Ozone (8-Hour Standard)
* * * * *
\2\ Early Action Compact Area, effective date deferred until
April 15, 2008.
* * * * *
[FR Doc. E6-20221 Filed 11-28-06; 8:45 am]
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