[Federal Register Volume 74, Number 11 (Friday, January 16, 2009)]
[Proposed Rules]
[Pages 2936-2945]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-806]
[[Page 2936]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 50 and 51
[EPA-HQ-OAR-2007-0956, FRL-8762-5]
RIN 2060-AO96
Proposed Rule To Implement the 1997 8-Hour Ozone National Ambient
Air Quality Standard: Revision on Subpart 1 Area Reclassification and
Anti-Backsliding Provisions Under Former 1-Hour Ozone Standard;
Proposed Deletion of Obsolete 1-Hour Ozone Standard Provision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The EPA proposes to revise the rule for implementing the 1997
8-hour ozone national ambient air quality standard (NAAQS) for several
of the limited portions of the rule vacated by the U.S. Circuit Court
of Appeals for the District of Columbia. The proposal addresses the
classification system for the subset of initial 8-hour ozone
nonattainment areas that the implementation rule originally covered
under Clean Air Act (CAA or Act) title I, part D, subpart 1. The
proposal also addresses how 1-hour ozone contingency measures that
apply for failure to attain or make reasonable progress toward
attainment of the 1-hour standard should apply under the anti-
backsliding provisions of the implementation rule. In addition, the
proposal removes language relating to the vacated provisions of the
rule that provided exemptions from the requirements of nonattainment
new source review (NSR) and CAA section 185 penalty fees under the 1-
hour standard. The EPA plans to issue a separate proposed rule
providing additional guidance as to how these two requirements (185
fees and NSR) now apply.
In addition, this proposal includes the deletion of an obsolete
provision in the 1-hour ozone standard itself.
DATES: Comments. Comments must be received on or before February 17,
2009.
Public Hearing. If anyone contacts us requesting a public hearing
by January 26, 2009, we will hold a public hearing approximately 30
days after publication in the Federal Register. Additional information
about the hearing would be published in a subsequent Federal Register
notice.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2007-0956, by one of the following methods:
www.regulations.gov: Follow the on-line instructions for
submitting comments.
E-mail: [email protected].
Fax: (202) 566-9744.
Mail: Air and Radiation Docket and Information Center,
Attention Docket ID No. EPA-HQ-OAR-2007-0956, Environmental Protection
Agency, 1301 Constitution Ave., NW., Washington, DC 20460. Mail Code:
2822T. Please include two copies if possible.
Hand Delivery: Air and Radiation Docket and Information
Center, Attention Docket ID No. EPA-HQ-OAR-2007-0956, Environmental
Protection Agency in the EPA Headquarters Library, Room Number 3334 in
the EPA West Building, located at 1301 Constitution Ave., NW.,
Washington, DC. The EPA/DC Public Reading Room hours of operation will
be 8:30 a.m. to 4:30 p.m. Eastern Standard Time (EST), Monday through
Friday, Air and Radiation Docket and Information Center.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2007-0956. The EPA's policy is that all comments received will be
included in the public docket without change and may be made available
on-line at www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
confidential business information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through www.regulations.gov,
or e-mail. The www.regulations.gov Web site is an ``anonymous access''
system, which means EPA will not know your identity or contact
information unless you provide it in the body of your comment. If you
send an e-mail comment directly to EPA without going through
www.regulations.gov, your e-mail address will be automatically captured
and included as part of the comment that is placed in the public docket
and made available on the Internet. If you submit an electronic
comment, EPA recommends that you include your name and other contact
information in the body of your comment and with any disk or CD-ROM you
submit. If EPA cannot read your comment due to technical difficulties
and cannot contact you for clarification, EPA may not be able to
consider your comment. Electronic files should avoid the use of special
characters, any form of encryption, and be free of any defects or
viruses. For additional information about EPA's public docket, visit
the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting comments, go to
the SUPPLEMENTARY INFORMATION section of this document.
Docket: All documents in the docket are listed in
www.regulations.gov. Although listed in the index, some information is
not publicly available, i.e., 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 in www.regulations.gov or in hard copy
at the Air and Radiation Docket and Information Center in the EPA
Headquarters Library, Room Number 3334 in the EPA West Building,
located at 1301 Constitution Ave., NW., 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.
Public Hearing: If a hearing is held, it will be held at the U.S.
Environmental Protection Agency, 109 TW Alexander Drive, Research
Triangle Park, North Carolina 27709, Building C.
FOR FURTHER INFORMATION CONTACT: For further general information or
information on the issue of reclassification of subpart 1 areas,
contact Mr. John Silvasi, Office of Air Quality Planning and Standards,
U.S. Environmental Protection Agency, (C539-01), Research Triangle
Park, NC 27711, phone number (919) 541-5666, fax number (919) 541-0824
or by e-mail at [email protected]. For information on the 1-hour
contingency measures issue discussed in this notice, contact Ms. Denise
Gerth, Office of Air Quality Planning and Standards, (C504-03), U.S.
EPA, Research Triangle Park, North Carolina 27711, phone number (919)
541-5550 or by e-mail at [email protected], fax number (919) 541-
0824. To request a public hearing, contact Mrs. Pamela Long, Office of
Air Quality Planning and Standards, (C504-03), U.S. EPA, Research
Triangle Park, North Carolina 27711, telephone number (919) 541-0641 or
by e-mail at [email protected], fax number (919) 541-5509.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does This Action Apply to Me?
Entities potentially affected directly by the subject rule for this
action include state, local, and Tribal governments. Entities
potentially
[[Page 2937]]
affected indirectly by this action include owners and operators of
sources of emissions (volatile organic compounds (VOCs) and nitrogen
oxides (NOX)) that contribute to ground-level ozone
concentrations.
B. What Should I Consider as I Prepare My Comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
www.regulations.gov or e-mail. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information on a disk or
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as
CBI and then identify electronically within the disk or CD-ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed to be CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
2. Tips for Preparing Your Comments. When submitting comments,
remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
Make sure to submit your comments by the comment period
deadline identified.
C. Where Can I Get a Copy of This Document and Other Related
Information?
In addition to being available in the docket, an electronic copy of
this notice is also available on the World Wide Web. A copy of this
notice will be posted at http://www.epa.gov/ttn/naaqs/ozone/o3imp8hr/.
D. What Information Should I Know About the Public Hearing?
EPA will hold a hearing only if a party notifies EPA by January 26,
2009, expressing its interest in presenting oral testimony on issues
addressed in this notice. Any person may request a hearing by calling
Mrs. Pamela Long at (919) 541-0641 before 5 p.m. by January 26, 2009.
Persons interested in presenting oral testimony should contact Mrs.
Pamela Long at (919) 541-0641. Any person who plans to attend the
hearing should also contact Mrs. Pamela S. Long at (919) 541-0641 or
visit the EPA's Web site at http://www.epa.gov/ttn/naaqs/ozone/o3imp8hr/ and to learn if a hearing will be held.
If a public hearing is held on this notice, it will be held at the
EPA, Building C, 109 T.W. Alexander Drive, Research Triangle Park, NC
27709. Because the hearing will be held at a U.S. Government facility,
everyone planning to attend should be prepared to show valid picture
identification to the security staff in order to gain access to the
meeting room. Please check our Web site at http://www.epa.gov/ttn/naaqs/ozone/o3imp8hr/ for information and updates concerning the public
hearing.
If held, the public hearing will begin at 10 a.m. and end 1 hour
after the last registered speaker has spoken. The hearing will be
limited to the subject matter of this document. Oral testimony will be
limited to 5 minutes. The EPA encourages commenters to provide written
versions of their oral testimony either electronically (on computer
disk or CD-ROM) or in paper copy. The list of speakers will be posted
on EPA's Web site at http://www.epa.gov/ttn/naaqs/ozone/o3imp8hr/.
Verbatim transcripts and written statements will be included in the
rulemaking docket.
A public hearing would provide interested parties the opportunity
to present data, views, or arguments concerning issues addressed in
this notice. The EPA may ask clarifying questions during the oral
presentations, but would not respond to the presentations or comments
at that time. Written statements and supporting information submitted
during the comment period will be considered with the same weight as
any oral comments and supporting information presented at a public
hearing.
E. How Is This Document Organized?
The Information Presented in This Document is Organized as Follows
I. General Information
A. Does This Action Apply to Me?
B. What Should I Consider as I Prepare My Comments for EPA?
C. Where Can I Get a Copy of This Document and Other Related
Information?
D. What Information Should I Know About the Public Hearing?
E. How Is This Document Organized?
II. What Is the Background for This Proposal?
A. Litigation on EPA's 8-Hour Ozone NAAQS Implementation Rule
(40 CFR Part 51, Sections 51.900 Through 51.918 (Collectively
Subpart X))
B. Obsolete Provision in 1-Hour Ozone Standard (40 CFR Part 50)
III. This Action
A. Reclassification of Subpart 1 8-Hour Ozone Nonattainment
Areas
1. Current Rule
2. Effect of Court Ruling
3. Proposed Rule
4. Consequences of Proposed Rule
B. Anti-Backsliding Under 1-Hour Ozone Standard--In General
(Also Discussing NSR and Section 185 Penalty Fees)
C. Contingency Measures
1. Phase 1 Rule
2. Effect of Court Ruling
3. Proposed Rule
D. Deletion of Obsolete 1-Hour Ozone Standard Provision
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. Determination Under Section 307(d)
Appendix A to Preamble. Application of the Proposed
Classification Scheme
II. What Is the Background for This Proposal?
A. Litigation on EPA's 8-Hour Ozone NAAQS Implementation Rule (40 CFR
Part 51, Sections 51.900 Through 51.918 (Collectively Subpart X))
On April 30, 2004 (69 FR 23951), EPA published Phase 1 of a final
rule that addressed the following key elements for implementing the
1997 8-hour ozone NAAQS: Classifications for the 1997 8-hour NAAQS;
revocation of the 1-hour NAAQS (i.e., when the 1-hour NAAQS will no
longer apply); anti-backsliding principles for 1-hour ozone
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requirements to ensure continued progress toward attainment of the 1997
8-hour ozone NAAQS; attainment dates; and the timing of emissions
reductions needed for attainment.
Following publication of the April 30, 2004 final Phase 1 Rule, the
Administrator received three petitions, pursuant to section
307(b)(7)(B) of the CAA requesting reconsideration of a number of
aspects of the final rule.\1\ In final rulemaking on one of these
petitions, EPA further clarified the implementation rule in two
respects: (a) Section 185 penalty fees under the 1-hour standard would
no longer be applicable after revocation of the 1-hour standard, and
(b) the effective date of designations under the 1997 8-hour standard
(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.\2\ Additionally, EPA clarified that the
requirement to have 1-hour contingency measures for failure to make
progress or failure to attain would no longer apply once the 1-hour
standard was revoked. On April 4, 2005 (70 FR 17018), we published a
proposed rule to take comment on the issue of whether we should
interpret the Act to require areas to retain major NSR requirements
that apply to certain 1-hour ozone nonattainment areas in implementing
the 1997 8-hour standard. We took final action on the NSR issues on
June 30, 2005 (70 FR 39413; July 8, 2005), to interpret the CAA to not
require NSR under the 1-hour standard once the 1-hour standard was
revoked.
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\1\ Three 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.
\2\ 70 FR 30592 (May 26, 2005).
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Several parties challenged EPA's Phase 1 Rule and the two
reconsideration rules, and on December 22, 2006, the Court upheld
certain challenges and rejected others, but purported to vacate the
Phase 1 Implementation Rule in its entirety. South Coast Air Quality
Management District, et al., v. EPA, 472 F.3d 882 (D.C. Cir. 2006)
reh'g denied 489 F.3d 1245 (clarifying that the vacatur was limited to
the issues on which the court granted the petitions for review).
The EPA requested rehearing and clarification of the ruling and on
June 8, 2007, the Court clarified that it was vacating the rule only to
the extent that it had upheld petitioners' challenges. Thus, the
following provisions of the Phase 1 rule were vacated:
The provisions that placed 8-hour ozone nonattainment
areas under subpart 1, part D, title I of the CAA instead of subpart 2.
The provisions that waived obligations under the revoked
1-hour standard for NSR, section 185 penalty fees, and contingency
measures for failure to attain or to make reasonable progress toward
attainment of the 1-hour standard.\3\
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\3\ The Court's June clarification confirmed that the December
2006 decision was not intended to establish a requirement that areas
continue to demonstrate conformity for the 1-hour ozone standard for
anti-backsliding purposes.
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B. Obsolete Provision in 1-Hour Ozone Standard (40 CFR Part 50)
When EPA promulgated the 8-hour ozone standard on July 18, 1997 (62
FR 38856), EPA initially revised 40 CFR 50.9 to revoke the 1-hour ozone
standard once EPA determined that an area had air quality meeting the
1-hour standard. Subsequently, because the pending litigation over the
8-hour NAAQS created uncertainty regarding the 8-hour NAAQS and our
implementation strategy, we revised 40 CFR 50.9 to place two
limitations on our authority to apply the revocation rule: (1) The 8-
hour NAAQS must no longer be subject to legal challenge, and (2) it
must be fully enforceable.\4\ (65 FR 45182, July 20, 2000). These
limitations were codified as Sec. 50.9(c). In the final Phase 1 Rule,
we again revised Sec. 50.9, this time to revise Sec. 50.9(b) to
provide for revocation of the 1-hour standard one year after
designation of areas under the 1997 8-hour ozone standard. However, we
neglected to remove paragraph (c) which was no longer necessary as the
8-hour standard was no longer subject to legal challenge and the
standard had been upheld and was enforceable. American Trucking Assoc.
v. EPA 283 F.3d 355 (DC Cir. 2002) (resolving all remaining legal
challenges to the 8-hour ozone standard and upholding EPA's rule
establishing that standard.)
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\4\ In addition, in June 2003, we stayed our authority to apply
the revocation rule pending our reconsideration in this rulemaking
of the basis for revocation. (68 FR 38160, June 26, 2003).
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III. This Action
A. Reclassification of Subpart 1 8-Hour Ozone Nonattainment Areas
1. Current Rule
In the Phase 1 implementation rule, EPA established which planning
requirements of part D of title I of the Act would apply to areas for
purposes of implementing the 8-hour ozone standard. 40 CFR 51.902.
(``Which classification and nonattainment area planning provisions of
the CAA shall apply to areas designated nonattainment for the 8-hour
NAAQS?'') Paragraph (a) provided that areas with a 1-hour ozone design
value equal to or greater than 0.121 parts per million (ppm) at the
time of 8-hour NAAQS nonattainment designation (April 2004) would be
classified in accordance with CAA title I, part D, section 181 of the
CAA as interpreted in 40 CFR 51.903(a) for purposes of the 8-hour
NAAQS, and would be subject to the requirements of CAA title I, part D,
subpart 2 that apply for the area's classification. 40 CFR 51.903(a)
set forth a translation into 8-hour design values of the CAA section
181 classification table, which is written in terms of 1-hour ozone
design values. The preamble to the Phase 1 Rule provides the rationale
and procedure for that translation. (See 69 FR 23958 et seq.) Section
181 in subpart 2 provides for specific classifications of each area by
the magnitude of the ozone problem, providing shorter time periods for
attainment for lower classifications and longer time periods for higher
classifications. Higher classified areas also face additional specified
control requirements than lower classified areas. A summary listing of
the subpart 2 requirements by classification compared to subpart 1
requirements appeared in the proposed 8-hour ozone implementation rule.
(See 68 FR 32864, Appendix A; June 2, 2003.)
Paragraph (b) of Sec. 51.902 provided that 1997 8-hour ozone
nonattainment areas with a 1-hour design value less than 0.121 ppm at
the time of 8-hour NAAQS nonattainment designation would be covered
under section 172(a)(1) of the CAA and would be subject to the
requirements of CAA title I, part D, subpart 1 and not those of subpart
2.
The EPA designated areas for the 1997 8-hour standard on April 30,
2004 (69 FR 23858), and in accordance with section 181(a), the areas
subject to subpart 2 under the Phase 1 Rule were classified by
operation of law at that time. Of the 126 areas designated
nonattainment, 84 were classified as under subpart 1, and the remaining
42 as under subpart 2.\5\
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\5\ 13 of the 84 subpart 1 areas and one subpart 2 area were
designated as ``Early Action Compact Areas'' with a deferred
effective date for their nonattainment designation.
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2. Effect of Court Ruling
In its decisions on the Phase 1 rule, the Court vacated the
provisions that subjected any 8-hour ozone nonattainment areas to
coverage under subpart 1. As the basis for its decision, the Court
first agreed that Congress mandated that certain areas be subject to
subpart 2, but ruled that our use of 0.121 ppm 1-hour design value as a
dividing line was incorrect, holding that the Supreme Court had
required use of 0.09 ppm on the 8-hour scale as the level for
determining which areas Congress mandated would be subject to subpart
2.\6\ Furthermore, although recognizing that Congress did not mandate
that areas with an 8-hour design value be subject to subpart 2, the
Court rejected as unreasonable our rationale for placing certain areas
in subpart 1 instead of subpart 2. The Court vacated the Phase 1 rule
to the extent it placed certain areas solely under the implementation
provisions of subpart 1. Thus, a rule revision is necessary to address
which provisions of the Act--only subpart 1 or subpart 2 \7\--should
apply to those areas that were placed solely under subpart 1 in the
Phase 1 Rule.
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\6\ ``* * * the gap identified in Whitman affords EPA discretion
only to the extent that an area is nonattaining but its air quality
is not as dangerous as the level addressed by the 1990 Amendments,
which now translates to 0.09 ppm on the 8 hour scale. Thus, the gap
extends only to the extent that the standard was strengthened and
not to the extent that the measurement technique merely changed * *
* We therefore hold that the 2004 Rule violates the Act insofar as
it subjects areas with 8-hour ozone in excess of 0.09 ppm to Subpart
1. We further hold that EPA's interpretation of the Act in a manner
to maximize its own discretion is unreasonable because the clear
intent of Congress in enacting the 1990 Amendments was to the
contrary.''
\7\ We note that areas subject to subpart 2 are also subject to
subpart 1 to the extent subpart 1 specifies requirements that are
not superseded by more specific obligations under subpart 2.
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3. Proposed Rule
We are proposing that all areas designated nonattainment for the
1997 8-hour ozone standard will be classified under and subject to the
nonattainment planning requirements of subpart 2. We would modify the
regulatory text to remove current Sec. 51.902(b) (which was vacated by
the Court), which placed certain areas only under subpart 1. We
considered the possibility of proposing to place areas with design
values below 0.09 ppm 8-hour design value under subpart 1, but are not
proposing this option in the interest of not further delaying
implementation of the 8-hour ozone NAAQS that was established over 10
years ago.\8\ However, we solicit comment on this part of this
proposal.
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\8\ As the court made clear in its decision on rehearing, the
CAA does not mandate coverage under subpart 2 of all areas
designated nonattainment for an ozone NAAQS. As EPA moves forward to
develop an implementation strategy for the new 2007 ozone NAAQS, we
will consider whether subpart 1 alone might apply in some areas for
purposes of implementing that NAAQS.
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Because these are the initial classifications for these areas for
the 1997 ozone standard, the EPA further proposes to use the 8-hour
ozone design values (from 2001-2003 air quality data) that were used to
designate these areas nonattainment initially as the basis for
classification and that the classification table in 40 CFR 51.903
(established by the Phase 1 Rule) be used for the classification. CAA
section 181(a) provides that ``at the time'' areas are designated for a
NAAQS, they will be classified ``by operation of law'' based on the
``design value'' of the areas and in accordance with table 1 of that
section. Thus, this language specifies that the area will be classified
based on the design value that existed for the area ``at the time'' of
designation. Areas were designated nonattainment in 2004, based on
design values derived from data from 2001-2003. We are soliciting
comment on the approach of classifying these areas based on the same
data that was used for designation.
Also, since the classification under this proposal would be the
initial one under the 1997 8-hour standard for these areas after court
vacatur of the method EPA used to treat these areas under subpart 1
only, EPA proposes that the provision of CAA section 181(a)(4) would
apply to these areas, which would allow the Administrator in his
discretion to adjust the classification--within 90 days after the
initial classification--to a higher or lower classification ``* * * if
the design value were 5 percent greater or 5 percent less than the
level on which such classification was based.'' The EPA proposes to
address requests for such classification adjustments for the newly-
classified areas that were originally covered under subpart 1 in a
manner similar to the way described for the original round of subpart 2
classifications.\9\ This process is described at 69 FR 23863 et seq.
(April 30, 2004).
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\9\ Note, however, that if a State requests a reclassification
from moderate to marginal and the attainment date for marginal areas
has passed and the area is violating the standard, EPA would not
grant the request for the reclassification.
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Of the original 84 subpart 1 areas designated in the April 30, 2004
rulemaking, 13 areas successfully completed participation in the Early
Action Compacts (EAC) program. As a result, these areas received
deferred designations and classifications for as long as they continued
to meet program requirements. These requirements were designed to
ensure early reductions of ozone and progress toward attainment of the
1997 NAAQS. At the completion of the program, these areas were
designated attainment for the 8-hour ozone NAAQS effective April 15,
2008.\10\
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\10\ One area (Denver, CO) that was originally part of the EAC
program did not successfully complete all milestones and was
subsequently designated nonattainment under subpart 1. Thus, this
area would be treated the same as all areas classified under subpart
1 under the original provisions of the Phase 1 Rule.
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Despite the proposal to implement the 1997 8-hour standard by
classifying nonattainment areas under title I, part D, subpart 2 at
this time, EPA reserves the right to propose to cover future ozone
nonattainment areas under title I, part D, subpart 1, in accordance
with the constraints outlined in the Court's rulings. The EPA may in
the future examine the appropriate role for subpart 1 in classifying
nonattainment areas and in flexible, efficient, enforceable
implementation of an ozone NAAQS.
Note that CAA section 182(h) (``Rural Transport Areas'') would be
available for any nonattainment area that qualifies as a rural
transport area under that section. A Rural Transport Area would have to
only meet requirements of a marginal area.
4. Consequences of Proposed Rule
Areas originally covered under subpart 1 that have already been
redesignated to attainment will not be affected by this rule, including
the 13 EAC areas noted above.\11\ Appendix A provides a listing of the
former subpart 1 areas that are still designated nonattainment and that
would be classified under subpart 2 under this proposed rule and
provides the subpart 2 classification for the area based on the air
quality data initially used to designate the area in the 2004
designation rule. All of these areas would be classified as either
marginal or moderate.\12\ The classification table of 40 CFR 51.903
provides an outside attainment date based on a number of years after
the effective date of the
[[Page 2940]]
nonattainment designation (3 years for marginal and 6 years for
moderate). For all areas other than Denver, the effective date of
designation for the 8-hour standard was June 15, 2004. Thus, marginal
nonattainment areas would have a maximum statutory attainment date of
June 15, 2007 and moderate areas a maximum date of June 15, 2010. Since
the marginal area attainment date has passed, EPA proposes that any
area that would be classified under the proposal as marginal, and that
did not attain by June 15, 2007, or that does not meet the criteria for
an attainment date extension under CAA section 181(a)(5)(B) and 40 CFR
51.907, would be reclassified immediately as moderate under this rule.
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\11\ See, e.g., 73 FR 11558 (col. 2) (March 4, 2008), together
with e.g., 73 FR 1166 (col 3) (January 8, 2008).
\12\ Note that Essex Co (the top of Whiteface Mtn), NY, and Door
County, WI would be eligible for consideration under CAA section
182(h) as a Rural Transport Area. This is based on the 1999
definition of Metropolitan Statistical Areas; neither of the above
two areas is in or adjacent to an MSA as defined by the Office of
Management and Budget (OMB) in 1999 (June 30, 1999; 64 FR 35548).
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Areas classified marginal or moderate would be required to meet the
marginal or moderate area requirements of CAA section 182(a) and/or
(b). Moderate area requirements include the requirements for the
marginal classification. Briefly, these requirements are depicted in
Table 1:
Table 1
------------------------------------------------------------------------
Subpart 2 \a\
Element -----------------------------------------
Classification Requirement
------------------------------------------------------------------------
Attainment Dates.............. Marginal......... 3 years from CAA
For all areas, attainment Amendments
should occur as expeditiously enactment.
as practicable, but no later
than specified timeframe.
Moderate......... 6 years from CAA
Amendments
enactment.
Reasonable Further Progress Marginal......... None.
(RFP).
Moderate......... 15% VOC reduction
from baseline within
6 years of
enactment.
Attainment demonstration Marginal......... None.
submission.
Moderate......... Due 3 years after CAA
Amendments
enactment.
NSR and Reasonable Achievable Marginal......... 100 tons per year
Technology (RACT) major (TPY).
source applicability.
Moderate......... 100 TPY.
NSR offsets................... Marginal......... 1.1 to 1.
Moderate......... 1.15 to 1.
Bump-up to higher All except severe Required to bump up
classification. & extreme. to higher
classification if
area doesn't meet
attainment date.
NOX control for RACT.......... Moderate & above; Requirements under
all areas in this subpart for
Ozone Transport major stationary VOC
Commission. sources (NSR & RACT)
also apply to all
major NOX sources,
unless EPA approves
NOX waiver.
Emission inventory............ All.............. Comprehensive
emissions inventory
within 2 years of
enactment; update
every 3 years (until
area attains).
Provision for
submission to state
of annual emissions
statements from VOC
and NOX stationary
sources.
RACT.......................... Marginal & above. Pre-1990 RACT fix-up.
Moderate & above. RACT for all Control
Techniques
Guidelines sources
and all other major
sources.
Inspection and Maintenance (I/ Marginal......... Pre-1990 corrections
M). to previously
required I&M
programs.
Moderate......... Basic I/M.
Consequences of failure to Marginal, Bump-up for failure
attain. moderate. to attain.
Contingency measures.......... All.............. Required for failure
to meet the Rate of
Progress milestones
or attain.
------------------------------------------------------------------------
\a\ Note that subpart 1 requirements also apply to subpart 2 areas to
the extent that the CAA does not provide an exemption (e.g., 182(a)
(last paragraph, which exempts marginal areas from the requirement to
submit an attainment demonstration)) or such requirements are not
superseded by more specific obligations under subpart 2 (e.g., where
subpart 2 specifies specific increments of progress for moderate and
above areas in place of the more general requirement for ``reasonable
further progress'' under subpart 1). Subpart 1 requirements that are
also applicable to subpart 2 areas (but that are not addressed in
subpart 2) include reasonably available control measures (RACM)
requirement and transportation and general conformity requirements.
With respect to transportation conformity requirements, current
transportation plan and transportation improvement program conformity
determinations for the 1997 8-hour ozone standard will remain valid,
and are not impacted by this action. Areas that would be reclassified
under subpart 2 are already satisfying the applicable CAA section
176(c) conformity requirements for the 1997 8-hour ozone standard. In
addition, no new conformity deadline would be triggered in the subject
areas after their classification under subpart 2. Nonattainment areas
that are classified as marginal or moderate under Subpart 2 would
continue to make future conformity determinations according to the
applicable requirements of 40 CFR 93.109(d) and (e). EPA notes that any
new moderate areas that continue to be required to use the interim
emissions tests will be required to meet additional test requirements
that do not apply to marginal areas (40 CFR 93.119(b)(1)).
The Phase 1 Rule provided that states must submit the major SIP
elements for the subpart 1 areas no later than June 15, 2007. For areas
classified as moderate, EPA also provided a submission date of June 15,
2007 for most requirements, but required states to submit the
reasonably available control technology requirement (RACT) SIP by
September 15, 2006. The EPA proposes to require states to submit all
required SIP elements for the areas' marginal or moderate
classification one year after the effective date of a final rule
classifying the areas. The EPA believes this is an appropriate and
reasonable amount of time given the attainment dates that will apply to
these areas and the fact that the areas should have made significant
progress toward meeting these requirements based on the obligations
that applied before the
[[Page 2941]]
subpart 1 classification provision of the Phase 1 rule was vacated. As
subpart 1 areas, these areas should have been well along the path to
developing SIPs at the time the Court issued its decision in December
2006. We believe states have already had ample opportunity to complete
the technical work to support development of these major SIP elements
prior to now. Also, EPA has encouraged states to continue planning for
clean air in the prior subpart 1 areas.\13\ Therefore, EPA believes one
year from the date of final rule should be sufficient time for states
to submit these SIPs. However, EPA solicits comment on this aspect of
the proposal.
---------------------------------------------------------------------------
\13\ Memorandum of March 19, 2007 from William L. Wehrum to EPA
Regional Administrators, re: ``Impacts of the Court Decision on the
Phase 1 Ozone Implementation Rule'' (response to Question 2) and
memorandum of June 15, 2007 from Robert J. Meyers to Regional
Administrators re: ``Decision of the U.S. Court of Appeals for the
District of Columbia Circuit on our Petition for Rehearing of the
Phase 1 Rule to Implement the 8-Hour Ozone NAAQS'' (Implications for
Subpart 1 Areas).
---------------------------------------------------------------------------
B. Anti-Backsliding Under 1-Hour Ozone Standard--In General (Also
Discussing NSR and Section 185 Penalty Fees)
The EPA codified the anti-backsliding provisions governing the
transition from the revoked 1-hour ozone NAAQS to the 1997 8-hour ozone
NAAQS in 40 CFR 51.905(a). These provisions, as promulgated, retained
most of the 1-hour ozone requirements as ``applicable requirements''
(defined in 40 CFR 51.900(f)). The requirements that are retained are
those that applied in an area based on the area's 1-hour ozone
designation and classification as of the effective date of its 8-hour
designation (for most areas, June 15, 2004).
Section 51.905(b) provides that a state remains subject to the
listed 1-hour standard obligations until the area attains the 8-hour
NAAQS. Furthermore, Sec. 51.905(b) provides that such obligations
cannot be removed from a SIP, even if the area is redesignated to
attainment for the 8-hour NAAQS, but must remain in the SIP as
applicable requirements or as contingency measures, as appropriate.
Section 51.905(e), as promulgated in 2004, indicated that certain
1-hour standard requirements are not part of the list of anti-
backsliding requirements. These include 1-hour NSR, section 185 penalty
fees, and 1-hour contingency measures for failure to attain or make
reasonable progress toward attainment of the 1-hour NAAQS.\14\ The
Court vacated these exemption provisions, and accordingly EPA is
proposing to delete these exemptions from the rule. Thus, this proposal
would remove language relating to the vacated provisions of the rule
that provided exemptions from the requirements of nonattainment NSR and
CAA section 185 penalty fees under the 1-hour standard in addition to
the provision for contingency measures. The EPA plans to issue a
separate proposed rule providing further guidance on how the section
185 fee provisions and the 1-hour NSR requirements apply as a result of
the Court's vacatur.\15\
---------------------------------------------------------------------------
\14\ Note that if the area is nonattainment for the 1997 8-hour
standard, it is subject to nonattainment NSR, contingency measures
and (if severe or extreme) the section 185 penalty fee provision for
that 1997 NAAQS.
\15\ As noted above in a previous footnote, the Court's June
2007 clarification confirms that the December 2006 decision was not
intended to establish a requirement that areas continue to
demonstrate conformity under the 1-hour ozone standard for anti-
backsliding purposes. Therefore, no revisions are necessary to 40
CFR 51.905(e)(3) of the Phase 1 implementation rule. Section 40 CFR
51.905(e)(3) establishes that conformity determinations for the 1-
hour standard are not required beginning 1 year after the effective
date of the revocation of the 1-hour standard and any state
conformity provisions in an applicable SIP that require 1-hour ozone
conformity determinations are no longer federally enforceable. This
provision does not require revision in light of the Court's decision
and clarification, because the Court did not require conformity
determinations for the 1-hour standard, and existing regulations
already implement the Court's holding that 8-hour ozone
nonattainment and maintenance areas must use 1-hour ozone budgets to
determine conformity to the 1997 8-hour standard until such time as
8-hour ozone budgets are approved or found adequate for the area.
Therefore, current transportation conformity-related regulations set
forth in 40 CFR part 93 and 40 CFR 51.905(e)(3), and the general
conformity regulations in 40 CFR part 93 are consistent with the
Court's decision and clarification on the Phase 1 8-hour ozone
implementation rule and do not require revision.
---------------------------------------------------------------------------
In the following section, in response to the Court vacatur, EPA
proposes the manner in which the 1-hour NAAQS contingency measure
requirement applies as an anti-backsliding requirement.
C. Contingency Measures
1. Phase 1 Rule
The Phase 1 Rule did not address anti-backsliding provisions
related to sections 172(c)(9) and 182(c)(9) of the CAA, which require
nonattainment area SIPs to contain contingency measures that would be
implemented if an areas fails to attain or fails to make RFP toward
attainment of the 1-hour NAAQS. In the Reconsideration Rule published
on May 26, 2005 (70 FR 30592), we determined that these 1-hour
contingency measures would no longer be considered required SIP
measures once the 1-hour standard was revoked. This meant that after
the 1-hour standard was revoked, areas that had not submitted 1-hour
attainment demonstrations or a specific 1-hour RFP SIP would no longer
be required to submit contingency measures in conjunction with those
SIPs. Also, the reconsideration rule stated that areas with approved
section 172 and 182 contingency measures in the adopted SIP could
submit a revision to remove them from their SIP when the 1-hour
standard was revoked.
2. Effect of Court Ruling
The Court concluded that EPA improperly waived the CAA requirements
for contingency measures that would apply based on the failure of an
area to meet a 1-hour RFP milestone or 1-hour attainment date. The
Court vacated the provision of the Phase 1 Rule that waived this
requirement for areas once the 1-hour standard was revoked.
Consequently, areas remain subject to the obligation to have
contingency measures for failure to attain the 1-hour NAAQS or make RFP
toward attainment of the 1-hour NAAQS and cannot remove section 172 or
182 contingency measures from their SIPs based on revocation of the 1-
hour standard.
3. Proposed Rule
The EPA is proposing that states be required to retain contingency
measures in their SIPs that would apply based on a failure to meet a 1-
hour RFP milestone or upon a failure to attain the 1-hour standard by
the area's attainment date. Consistent with the Court's vacatur of
Sec. 51.905(e)(2)(iii), which waived this requirement once the 1-hour
standard was revoked, EPA proposes to remove this provision from the
regulations. Furthermore, consistent with EPA's proposal to retain
these 1-hour contingency measure requirements as anti-backsliding
measures, we also propose to list contingency measures under sections
172(c)(9) and 182(c)(9) of the CAA as applicable requirements under
Sec. 51.900(f).
In situations where an area attains the 1-hour NAAQS by its
applicable attainment date, the area is not subject to the requirement
to implement contingency measures for failure to attain the standard by
its attainment date. As a result, any area that meets or has met its
attainment deadline, even if the area subsequently lapses into
nonattainment, would not be required to implement the contingency
measures for failure to attain the standard by its attainment date for
purposes of anti-backsliding.
In situations where a 1-hour ozone nonattainment area is in
attainment based on current air quality (e.g., after the area's
attainment date), EPA can
[[Page 2942]]
propose to make a finding of attainment.\16\ This finding would be
pursuant to the interpretation set forth in the May 10, 1995 memorandum
from John S. Seitz, Director, Office of Air Quality Planning and
Standards, entitled ``Reasonable Further Progress, Attainment
Demonstration, and Related Requirements for Ozone Nonattainment Areas
Meeting the Ozone Ambient Air Quality Standard'' (Clean Data Policy).
Under this policy, if EPA determines through rulemaking that the area
is meeting the 1-hour ozone standard, the requirements for the state to
submit an attainment demonstration and related components such as
reasonably available control measures (RACM), RFP demonstration,
contingency measures for failure to attain or make reasonable further
progress and the section 185 fees program are suspended as long as the
area continues to attain the 1-hour ozone NAAQS. If the area
subsequently violates the ozone NAAQS, EPA would initiate notice-and-
comment rulemaking to withdraw the determination of attainment, which
would result in reinstatement of the requirement for the state to
submit such plans.
---------------------------------------------------------------------------
\16\ This applies even if the area did not attain by its
attainment date; however, the CAA requires EPA in these cases to
make a finding of failure to attain by the attainment date and
either reclassify the area or apply other requirements (such as
section 185) as specified for the area's classification.
---------------------------------------------------------------------------
The Tenth, Seventh and Ninth Circuits have upheld EPA rulemakings
applying the Clean Data Policy. See Sierra Club v. EPA, 99 F. 3d 1551
(10th Cir. 1996); Sierra Club v. EPA. 375 F.3d 537 (7th Cir. 2004) and
Our Children's Earth Foundation v. EPA, No. 04-73032 (9th Cir. June 28,
2005) memorandum opinion.\17\ See also the discussion and rulemakings
cited in EPA's Phase 2, 8-Hour Ozone Implementation Rulemaking, 70 FR
71644-71646 (November 29, 2005), which codified the policy for the 8-
hour NAAQS.
---------------------------------------------------------------------------
\17\ The Clean Data Policy, as it is embodied in 40 CFR. 51.918,
is being challenged in the context of the 8-hour ozone standard in
the Phase 2 Rule ozone litigation pending in the DC Circuit, NRDC v.
EPA, No. 06-1045 (DC Cir.).
---------------------------------------------------------------------------
Thus if EPA makes a determination of attainment under the Clean
Data Policy, EPA would find that the requirement to submit section 172
and 182 contingency measures under the 1-hour anti-backsliding
provisions (40 CFR 51.905) would be suspended for so long as the area
continues to attain the 1-hour standard.
Under 40 CFR 51.905(b), states remain subject to the obligations
under Sec. 51.905(a)(1)(i) and (a)(2) until the area attains the 8-
hour NAAQS for purposes of anti-backsliding. After the area attains the
8-hour NAAQS, states may request that these obligations be shifted to
contingency measures, consistent with sections 110(l) and 193 of the
CAA; however, the state cannot remove the obligations from the SIP.
D. Deletion of Obsolete 1-Hour Ozone Standard Provision
For the reasons stated above in the background section concerning
the obsolete nature of 40 CFR 50.9(c), we are proposing to delete that
paragraph. This will have no effect on the status of the 1-hour ozone
standard,\18\ or on the anti-backsliding provisions which set forth how
areas must meet 1-hour requirements that applied to the area at the
time the area was designated for the 8-hour standard.
---------------------------------------------------------------------------
\18\ The 1-hour standard was revoked for most areas on June 15,
2005, the date one-year after the effective date of designation. For
the 13 EAC areas designated attainment with an effective date of
April 15, 2008, the 1-hour standard will be revoked April 15, 2009,
and for the Denver EAC area, which was designated nonattainment
effective November 20, 2007, the 1-hour standard will be revoked
November 20, 2008.
---------------------------------------------------------------------------
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is a significant regulatory action because it raises novel legal
or policy issues arising out of legal mandates. Accordingly, EPA
submitted this action to the Office of Management and Budget (OMB) for
review under EO 12866 and any changes made in response to OMB
recommendations have been documented in the docket for this action.
B. Paperwork Reduction Act
This action does not impose any new information collection burden.
This action sets forth EPA's proposed rule for addressing portions of
the partial vacatur of EPA's Phase 1 rule for implementation of the
1997 8-hour ozone NAAQS. However, the Office of Management and Budget
(OMB) has previously approved the information collection requirements
contained in the existing Phase 1 Rule (April 30, 2004; 69 FR 23951)
and the Phase 2 Rule (November 29, 2005; 70 FR 71612) regulations and
has been assigned OMB Control Number 2060-0594. 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 regulation 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 these proposed regulations
revisions 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 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 impact of these proposed revisions
to the regulations on small entities, I certify that this action will
not have a significant economic impact on a substantial number of small
entities. This proposal will not impose any requirements on small
entities.
We continue to be interested in the potential impacts of the
proposed rule on small entities and welcome comments on issues related
to such impacts.
D. Unfunded Mandates Reform Act
This action contains no Federal mandate under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for State, local, or tribal governments or the private
sector. The action imposes no enforceable duty on any State, local or
tribal governments or the private sector. Therefore, this action is not
subject to the requirements of section 202 and 205 of the UMRA.
This action is also not subject to the requirements of section 203
of UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. The EPA has
determined that these proposed regulation revisions contain no
regulatory requirements that may significantly or uniquely affect small
governments, including tribal governments because these regulations
affect Federal agencies only.
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
[[Page 2943]]
and local officials in the development of regulatory policies that have
Federalism implications.'' Policies that have ``Federalism
implications'' are 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 action does not have Federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. This proposed rule, if made final,
would restore provisions that existed under the 1-hour ozone standard
and that would have continued under the 1-hour standard had not EPA
issued a revised ozone standard. Those provisions were revoked when EPA
revoked the 1-hour standard itself. Although a court upheld EPA's right
to revoke the 1-hour standard, the court ruled that EPA erroneously
revoked several 1-hour NAAQS provisions and vacated those portion of
EPA's rule. Thus, the court's own ruling restored the former 1-hour
NAAQS provisions. This proposed rule merely proposes a corrective
regulatory mechanism for restoring the 1-hour contingency measure
provision that the court had already restored. Thus, Executive Order
13132 does not apply to these proposed regulation revisions.
In the spirit of Executive Order 13121 and consistent with EPA
policy to promote communications between EPA and state and local
governments, EPA is soliciting comments on this proposal from state and
local officials.
F. Executive Order 13175--Consultation and Coordination With Indian
Tribal Governments
This action does not have Tribal implications as specified in
Executive Order 13175. They do not have a substantial direct effect on
one or more Indian Tribes, since no Tribe has to develop a SIP under
these proposed regulatory revisions. Furthermore, these proposed
regulation revisions do not affect the relationship or distribution of
power and responsibilities between the Federal government and Indian
Tribes. The CAA and the Tribal Air Rule establish the relationship of
the Federal government and Tribes in developing plans to attain the
NAAQS, and these revisions to the regulations do nothing to modify that
relationship. Thus, Executive Order 13175 does not apply.
EPA specifically solicits additional comment on the proposed
revisions to the regulations from Tribal officials.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying
only to those regulatory actions that concern health or safety risks,
such that the analysis required under section 5-501 of the EO has the
potential to influence the regulation. This action is not subject to EO
13045 because these proposed rule revisions address whether a SIP will
adequately attain and maintain the NAAQS and meet the obligations of
the CAA. The NAAQS are promulgated to protect the health and welfare of
sensitive population, including children. However, EPA solicits
comments on whether the proposed action would result in an adverse
environmental effect that would have a disproportionate effect on
children.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not subject to Executive Order 13211 (66 FR 28355
(May 22, 2001)), because it is not a significant regulatory action
under Executive Order 12866.
I. National Technology Transfer Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards 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
voluntary consensus standards bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
This proposed rulemaking does not involve technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has determined that this proposed rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. The proposed revisions to the regulations would, if
promulgated revise procedures for states to follow in developing SIPs
to attain the NAAQS, which are designed to protect all segments of the
general populations. As such, they do not adversely affect the health
or safety of minority or low income populations and are designed to
protect and enhance the health and safety of these and other
populations.
K. Determination Under Section 307(d)
Pursuant to sections 307(d)(1)(E) and 307(d)(1)(V) of the CAA, the
Administrator determines that this action is subject to the provisions
of section 307(d). Section 307(d)(1)(V) provides that the provisions of
section 307(d) apply to ``such other actions as the Administrator may
determine.''
Appendix A to Preamble. Application of the Proposed Classification
Scheme
This appendix lists the proposed new subpart 2 classifications for
the areas that were originally covered under subpart 1 in the phase 1
rule (April 30, 2004) and that are currently still designated
nonattainment. The geographic boundaries of these nonattainment areas
are provided in 40 CFR Part 81, Subpart C.
[[Page 2944]]
----------------------------------------------------------------------------------------------------------------
2001-2003 8- 2004-2006 8- 2005-2007 8-
Current nonattainment areas not hour ozone Proposed subpart 2 hour ozone hour ozone
classified under phase 1 rule, design value classification design value design value
as vacated by the court \a\ ppm ppm ppm
----------------------------------------------------------------------------------------------------------------
Albany-Schenectady-Troy, NY \e\. 0.087 Marginal...................... 0.078 0.079
Allegan Co, MI.................. 0.097 Moderate...................... 0.088 0.093
Amador and Calaveras Cos 0.091 Moderate...................... 0.093 0.090
(Central Mtn), CA \c\.
Buffalo-Niagara Falls, NY....... 0.099 Moderate...................... 0.083 0.086
Chico, CA \e\................... 0.089 Marginal...................... 0.084 0.084
Cincinnati-Hamilton, OH-KY-IN... 0.096 Moderate...................... 0.086 0.088
Clearfield & Indiana Cos, PA \e\ 0.09 Marginal...................... 0.077 0.080
Columbus, OH.................... 0.095 Moderate...................... 0.084 0.087
Denver-Boulder-Greeley-Ft. 0.087 Marginal...................... 0.081 0.085
Collins-Love, CO \b\.
Door Co, WI \d\................. 0.094 Moderate...................... 0.086 0.090
Essex Co (Whiteface Mtn), NY \d\ 0.091 Marginal...................... NAV NAV
Greene Co, PA \e\............... 0.089 Marginal...................... 0.079 0.080
Haywood and Swain Cos (Great 0.085 Marginal...................... 0.076 0.078
Smoky NP), NC \e\.
Jamestown, NY................... 0.094 Moderate...................... 0.086 0.086
Kern Co (Eastern Kern), CA...... 0.098 Moderate...................... 0.086 0.085
Knoxville, TN................... 0.092 Moderate...................... 0.084 0.088
Las Vegas, NV \e\............... 0.086 Marginal...................... 0.083 0.086
Manitowoc Co, WI \e\............ 0.09 Marginal...................... 0.082 0.086
Mariposa and Tuolumne Cos 0.091 Moderate...................... 0.086 0.085
(Southern Mtn),CA \c\.
Nevada Co. (Western Part), CA... 0.098 Moderate...................... 0.096 0.095
Phoenix-Mesa, AZ \e\............ 0.087 Marginal...................... 0.083 0.083
Pittsburgh-Beaver Valley, PA.... 0.094 Moderate...................... 0.083 0.087
Rochester, NY \e\............... 0.088 Marginal...................... 0.072 0.080
San Diego, CA................... 0.093 Moderate...................... 0.088 0.089
Sutter Co (Sutter Buttes), CA 0.088 Marginal...................... 0.082 0.081
\e\.
----------------------------------------------------------------------------------------------------------------
\a\ A number of areas that were placed in Subpart 1 under the vacated portion of the Phase 1 Rule have since
attained the 8-hour ozone standard and have been redesignated to attainment. Because these areas are now
designated attainment for the ozone standard, they are not nonattainment areas subject to classification and
thus are not included in this table.
\b\ Denver originally participated in the Early Action Compact (EAC) program and was listed in the April 30,
2004 designation action as a nonattainment area under subpart 1; its nonattainment designation was deferred
until November 20, 2007, at which time based on a violation of the 1997 8-hour ozone NAAQS, Denver's
nonattainment designation became effective. Denver has planning requirements as a former EAC area.
\c\ Area would have been marginal but did not have attaining design values by the marginal area attainment date
(June 15, 2007) (based on 2004-2006 design values).
\d\ Essex Co (the top of Whiteface Mtn), NY, and Door County, WI, would be eligible for consideration under CAA
section 182(h) as Rural Transport Areas. This is based on the 1999 definition of Metropolitan Statistical
Areas; neither of the above two areas is in or adjacent to an MSA as defined by the Office of Management and
Budget (OMB) in 1999 (June 30, 1999; 64 FR 35548). Essex Co does not have a design value for the 2005-2007
period (indicated by NAV (not available)).
\e\ These areas had attaining design values as of the marginal area attainment date (June 15, 2007) (based on
2004-2006 design values).
List of Subjects
40 CFR Part 50
Environmental protection, Air pollution control, Carbon monoxide,
Lead, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides.
40 CFR Part 51
Air pollution control, Intergovernmental relations, Ozone,
Particulate matter, Transportation, Volatile organic compounds.
Authority: 42 U.S.C. 7409; 42 U.S.C. 7410; 42 U.S.C. 7511-7511f;
42 U.S.C. 7601(a)(1).
Dated: January 9, 2009.
Stephen L. Johnson,
Administrator.
For the reasons stated in the preamble, title 40, chapter I of the
Code of Federal Regulations is proposed to be amended as follows:
PART 50--NATIONAL PRIMARY AND SECONDARY AMBIENT AIR QUALITY
STANDARDS
1. The authority citation for part 50 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Sec. 50.9 [Amended]
2. Section 50.9 is amended by removing and reserving paragraph (c).
PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF
IMPLEMENTATION PLANS
3. 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--[Amended]
4. Section 51.900 is amended by adding paragraph (f)(14) to read as
follows:
Sec. 51.900 Definitions.
* * * * *
(f) * * *
(14) 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 by the applicable attainment date or to make reasonable
further progress toward attainment of the 1-hour NAAQS.
* * * * *
5. Section 51.902 is revised to read as follows:
Sec. 51.902 Which classification and nonattainment area planning
provisions of the CAA shall apply to areas designated nonattainment for
the 8-hour NAAQS?
(a) An area designated nonattainment for the 8-hour NAAQS will be
classified in accordance with section 181 of the CAA, as interpreted in
Sec. 51.903(a), for purposes of the 8-hour NAAQS, and will be subject
to the requirements of subpart 2 that apply for that classification.
(b) [Reserved]
6. Section 51.905 is amended as follows:
a. By adding a sentence to the end of paragraph (b).
[[Page 2945]]
b. By removing and reserving paragraphs (e)(2)(ii) and (e)(2)(iii).
c. By removing paragraph (e)(4).
Sec. 51.905 How do areas transition from the 1-hour NAAQS to the 8-
hour NAAQS and what are the anti-backsliding provisions?
* * * * *
(b) * * * Once an area attains the 1-hour NAAQS, the section 172
and 182 contingency measures under the 1-hour NAAQS can be shifted to
contingency measures for the 8-hour ozone NAAQS and must remain in the
SIP until the area is redesignated to attainment for the 8-hour NAAQS.
* * * * *
[FR Doc. E9-806 Filed 1-15-09; 8:45 am]
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