51960 Federal Register / Vol. 75, No. 163 / Tuesday, August 24, 2010 / Proposed Rules 

to be ‘‘substance abuse professionals’’ 

and to perform counseling services with 

its employees, and the Federal Health 

Resources Services Administration has 

included MFTs on its list of five core 

mental health disciplines. 

(5) The petitioner states that the 

licensing and regulation of MFTs is 

done by all fifty states. The petitioner 

states that although licensing is 

conducted by individual states, the vast 

majority of states require candidates to 

pass the national MFT examination, 

which is administered by the 

Association of Marital and Family 

Therapy Regulatory Boards (AMFTRB). 

The National MFT examination tests 

prospective MFTs on their knowledge of 

substance abuse issues and treatment. 

The petitioner states that in terms of 

substance abuse issues, the AMFTRB 

tests prospective MFTs on their 

knowledge of how substance abuse and 

dependency affect the individual and 

the functioning of his or her family; the 

effects of addictive behavior on the 

individual and the family system; and 

addiction treatment modalities. 

The petitioner provided the following 

documents as attachments to its petition 

for rulemaking. These documents are 

not included in this publication. (See 

the ADDRESSES section of this document 

for instructions on accessing a copy of 

the petition for rulemaking.) 

• California Business & Professions 

Code § 498.36, § 1887.3, § 29, § 2914, 

§ 1382.3, and § 4996.2; 

• Yale School of Medicine Bulletin; 

• NAADAC Guide to Certification; 

and 

• Employee Assistance Professionals 

Association, ‘‘How to Become a CEAP’’. 

In summary, the petitioner believes 

that MFTs should be included in the list 

of credentialed professionals presented 

in 10 CFR 26.187(b). The petitioner 

states that it realizes the importance of 

the role SAEs play in safeguarding the 

United States and its citizens, and 

believes that the members of CAMFT 

who are qualified to be SAEs would be 

a credit to the NRC. 

Dated at Rockville, Maryland, this 18th day 

of August 2010. 

For the Nuclear Regulatory Commission. 

Annette L. Vietti-Cook, 

Secretary of the Commission. 

[FR Doc. 2010–21022 Filed 8–23–10; 8:45 am] 

BILLING CODE 7590–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 51 

[EPA–HQ–OAR–2008–0462, FRL–9192–7] 

RIN 2060–AP30 

Proposed Rule To Implement the 1997 

8-Hour Ozone National Ambient Air 

Quality Standard: New Source Review 

Anti-Backsliding Provisions for Former 

1-Hour Ozone Standard 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: This proposed action would 

clarify the obligation to retain 1-hour 

nonattainment new source review (NSR) 

program requirements for certain areas 

designated nonattainment for the 1997 

8-hour ozone national ambient air 

quality standard (NAAQS). The EPA 

proposes to revise the rule for 

implementing the 1997 8-hour ozone 

NAAQS to address how NSR 

requirements that applied by virtue of 

the area’s 1-hour ozone NAAQS 

classification should apply under the 

anti-backsliding provisions of the 1997 

8-hour implementation rule. This 

proposed rule responds to the ruling by 

the U.S. Court of Appeals for the District 

of Columbia Circuit that the 1-hour 

major NSR program, as it applies to 

areas that were designated 1-hour 

nonattainment on the date of 

designation for the 1997 8-hour 

NAAQS, is a required control to prevent 

backsliding. EPA has separately 

proposed to remove the vacated 

provisions of the rule that allowed 

States to remove (or not include, if not 

yet adopted) 1-hour major NSR for 

nonattainment areas from their State 

implementation plans (SIPs). 

DATES: Comments. Comments must be 

received on or before September 23, 

2010. 

Public Hearing. If anyone contacts us 

requesting a public hearing by 

September 3, 2010, we will hold a 

public hearing approximately 30 days 

after publication of this proposal 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–2008–0462, by one of the 

following methods: 

• http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

• E-mail: a-and-r-docket@epa.gov. 

• Fax: (202) 566–9744. 

• Mail: Air and Radiation Docket and 

Information Center, Attention Docket ID 

No. EPA–HQ–OAR–2008–0462, 

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–2008–0462, 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–2008– 

0462. 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 

http://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 http:// 

www.regulations.gov, or e-mail. The 

http://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 http:// 

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. 


wwoods2 on DSK1DXX6B1PROD with PROPOSALS_PART 1
Federal Register / Vol. 75, No. 163 / Tuesday, August 24, 2010 / Proposed Rules 51961 

1See Final Rule to Implement the 8-Hour Ozone 

National Ambient Air Quality Standard-Phase 1 (69 

FR 23951, April 30, 2004). 

Docket: All documents in the docket 

are listed in http://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 http:// 

www.regulations.gov or in hard copy at 

the Air and Radiation Docket and 

Information Center, 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, 1200 Pennsylvania 

Avenue, Washington, DC 20004. 

FOR FURTHER INFORMATION CONTACT: For 

information on 1-hour major NSR, 

contact: Mr. David Painter, Office of Air 

Quality Planning and Standards, U.S. 

Environmental Protection Agency 

(C504–03), Research Triangle Park, NC 

27711, telephone number (919) 541– 

5515, fax number (919) 541–5509 or by 

e-mail at painter.david@epa.gov. 

To request a public hearing, contact 

Mrs. Pamela Long, Office of Air Quality 

Planning and Standards (C504–03), U.S. 

Environmental Protection Agency, 

Research Triangle Park, North Carolina 

27711, telephone number (919) 541– 

0641 or by e-mail at long.pam@epa.gov, 

fax number (919) 541–5509. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this action apply to me? 

Entities potentially affected directly 

by this action include certain State and 

Tribal governments that manage air 

quality for areas designated 

nonattainment for the 1997 ozone 

NAAQS. See Table 1 in this notice for 

a list of potentially affected areas. 

B. What should I consider as I prepare 

my comments for EPA? 

1. Submitting CBI. Do not submit this 

information to EPA through http:// 

www.regulations.gov or e-mail. Clearly 

mark the part or all of the information 

that you claim to be CBI. For CBI 

information in 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/nsr. 

D. How can I find information about a 

possible public hearing? 

To request a public hearing or 

information pertaining to a public 

hearing on this document, contact Mrs. 

Pamela Long at (919) 541–0641 before 5 

p.m. on September 3, 2010. 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 Long at (919) 541–0641 or 

visit the EPA’s Web Sites at http:// 

www.epa.gov/nsr to learn if a hearing 

will be held. 

E. How is this notice organized? 

The information presented in this 

notice 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. How can I find information about a 

possible public hearing? 

E. How is this notice organized? 

II. Background for This Proposal 

A. Anti-Backsliding Provisions 

B. Reconsideration of Certain Provisions of 

the Phase 1 Rule 

C. South Coast Decision 

III. This Action 

A. Applicability of 1-Hour NSR 

Requirements 

B. Removal of 1-Hour NSR Requirements 

C. Section 110(l) 

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 and 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) 

II. Background for This Proposal 

A. Anti-Backsliding Provisions 

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) (part of the ‘‘Phase 1 Rule’’). 

These provisions, as promulgated, 

retained 13 requirements specified 

under section 182 of the Clean Air Act 

(CAA or Act), as those requirements 

applied for the 1-hour ozone standard.1

These 13 requirements were identified 

as ‘‘applicable requirements’’ in the 

regulation. 40 CFR 51.900(f). The 

applicable requirements include: (1) 

Reasonably available control technology 

(RACT) for major stationary sources; (2) 

vehicle inspection and maintenance 

(I/M) programs; (3) major source 

applicability thresholds for purposes of 

RACT; (4) rate of progress reductions; 

(5) stage II gasoline vehicle refueling 

vapor recovery; (6) clean fuels fleet 

program under section 183(c)(4) of the 

CAA; (7) clean fuels for boilers under 


wwoods2 on DSK1DXX6B1PROD with PROPOSALS_PART 1
51962 Federal Register / Vol. 75, No. 163 / Tuesday, August 24, 2010 / Proposed Rules 

2Note that if the area is nonattainment for the 

1997 8-hour standard, the CAA requires that 

nonattainment NSR would apply to the area based 

on its classification for the 1997 8-hour standard. 

3Petitions for reconsideration of the Phase 1 Rule 

were filed by: (1) Earthjustice on behalf of the 

American Lung Association, Environmental 

Defense Fund, 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. 

4 70 FR 30592 (May 26, 2005). 

section 182(e)(3) of the CAA; (8) 

transportation control measures; (9) 

enhanced (ambient) monitoring; (10) 

transportation controls under section 

182(c)(5); (11) vehicle miles traveled 

provisions; (12) NOX requirements 

under section 182(f) of the CAA; and 

(13) attainment demonstrations. Under 

the Phase 1 Rule, these requirements 

continue to apply to an area after 

revocation of the 1-hour NAAQS if the 

requirements were applied in the area 

based on the area’s 1-hour ozone 

designation and classification as of the 

effective date of its 1997 8-hour 

designation (for most areas the effective 

date of the 1997 8-hour designation was 

June 15, 2004). 40 CFR 51.900(h). 

The rule further provides that an area 

remains subject to these applicable 

requirements until the area attains the 

1997 8-hour NAAQS. 40 CFR 51.905(b). 

Additionally, such obligations cannot be 

removed from a SIP, even if we 

redesignate the area to attainment for 

the 8-hour NAAQS. However, upon 

redesignation to attainment of the 8- 

hour ozone standard, a State could 

request that such requirements be 

moved to the contingency measures 

portion of the SIP (40 CFR 51.905(b)). 

In the Phase 1 Rule and in two 

subsequent reconsideration rules (which 

are described below), EPA explicitly 

excluded 1-hour major NSR from the list 

of retained applicable requirements 

(§ 51.905(e)).2 The Phase 1 Rule 

provided at § 51.905(e)(4)(i) that when 

we revoked the 1-hour standard, the 

State would no longer be required to 

retain the major NSR provisions 

associated with the 1-hour NAAQS in 

its SIP for areas that were designated 

nonattainment for the 1-hour ozone 

standard. Instead, the State could revise 

its SIP to replace the 1-hour NSR 

requirements with those specific to its 

new 8-hour ozone designation and 

classification status. In many cases, this 

would allow an area to adopt higher 

major NSR source applicability 

thresholds and lower offset ratios 

associated with the area’s lower 8-hour 

classification. This would have the 

effect of reducing the number of sources 

subject to major NSR source 

requirements, including more stringent 

emission limitations and offsets. 

The Phase 1 Rule also contained a 

provision directed specifically at areas 

that were designated 8-hour attainment 

and 1-hour nonattainment. That 

provision addressed the applicable 

requirements listed in § 51.900(f) as well 

as 1-hour NSR requirements. With 

respect to the 1-hour NSR requirement, 

§ 51.905(a)(3) stated: ‘‘For such areas, 

the state may request that the 

nonattainment NSR provisions be 

removed from the SIP on or after the 

date of revocation of the 1-hour NAAQS 

and need not be shifted to contingency 

measures subject to paragraph (e)(4) of 

this section.’’ 

B. Reconsideration of Certain Provisions 

of the Phase 1 Rule 

Following publication of the Phase 1 

Rule, the Administrator received three 

petitions pursuant to section 

307(b)(7)(B) of the CAA requesting 

reconsideration of several aspects of the 

final rule.3 EPA addressed certain issues 

raised in these petitions in two 

rulemakings. In the first reconsideration 

rulemaking, EPA further clarified the 

implementation rule in two respects: (a) 

CAA 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.4 Additionally, EPA 

clarified that the requirement to retain 

1-hour contingency measures for failure 

to make progress or failure to attain 

would no longer apply once we revoked 

the 1-hour standard. 

In the second reconsideration 

rulemaking, we proposed and took 

comment on the issue of whether we 

should interpret the Act to require 8- 

hour ozone nonattainment areas to 

retain major NSR requirements that 

applied on the basis of the areas’ 1-hour 

ozone nonattainment classification (70 

FR 17018, April 4, 2005). We took final 

action on this NSR issue on June 30, 

2005 (70 FR 39413, July 8, 2005), 

determining not to require States to 

retain major NSR under the 1-hour 

standard once it was revoked. 

C. South Coast Decision 

In South Coast Air Quality 

Management District, et al., v. EPA, 472 

F.3d 882 (DC Cir. 2006) (South Coast), 

the Court vacated EPA’s waiver of 1- 

hour major nonattainment NSR 

requirements as they apply to the 1-hour 

standard and stated that removing them 

from a SIP ‘‘would constitute 

impermissible backsliding.’’ The 

decision was based on challenges by 

several parties to EPA’s Phase 1 Rule 

and the two reconsideration rules. The 

Court upheld certain challenges and 

rejected others, but purported to vacate 

the Phase 1 Rule in its entirety. South 

Coast Air Quality Management District, 

et al., v. EPA, 472 F.3d 882 (DC Cir. 

2006). The EPA requested rehearing and 

clarification of the ruling, and, on June 

8, 2007, the Court clarified that it 

vacated the rule only to the extent that 

it had upheld the petitioners’ 

challenges. South Coast Air Quality 

Management District, et al., v. EPA, 

2007 U.S. App. LEXIS 13303 (DC Cir. 

2007). Thus, the Court vacated the 

provisions that waived obligations as 

they applied under the revoked 1-hour 

standard for major nonattainment NSR, 

CAA section 185 penalty fees, and 

contingency measures for failure to 

attain or to make reasonable progress 

toward attainment. 

We have separately proposed to 

remove these provisions from the 

regulations at 40 CFR part 51 in order 

to ensure that the published regulatory 

text is consistent with the Court’s 

vacatur. 74 FR 2936 (January 16, 2009). 

With regard to NSR, the South Coast 

decision means that the 1-hour major 

NSR thresholds and offsets remain 

applicable to those areas that had not 

been redesignated to 1-hour attainment 

by the date of designation for the 8-hour 

ozone NAAQS (except where the area 

has since been redesignated to 

attainment for the 8-hour standard). As 

previously stated in the October 3, 2007, 

memo from Robert J. Meyers to the 

Regional Administrators, States are to 

comply with the South Coast decision 

as quickly as possible. States should 

take appropriate steps to implement the 

1-hour major NSR requirements in 

accordance with the South Coast 

decision without waiting for completion 

of this rulemaking. 

III. This Action 

This action proposes regulatory 

language to clarify the obligation to 

retain 1-hour major nonattainment NSR 

requirements and proposes when States 

can request that these requirements be 

removed from their SIPs. 

This proposal focuses on the 

nonattainment NSR aspects of the South 

Coast decision that can be clarified 

through additions of new rule language. 

In a separate action, we have proposed 

to remove the vacated regulatory 


wwoods2 on DSK1DXX6B1PROD with PROPOSALS_PART 1
Federal Register / Vol. 75, No. 163 / Tuesday, August 24, 2010 / Proposed Rules 51963 

5 In addition, that separate proposed rule 

addresses two other aspects of the rule vacated by 

the Court in South Coast: (1) How EPA will classify 

areas that it had placed under subpart 1 in the 

Phase 1 Rule, and (2) anti-backsliding requirements 

for contingency measures that apply for failure to 

make progress toward or to attain the 1-hour 

standard. 

6These same provisions also allowed States 

which had not yet adopted such programs to not 

adopt and submit such SIPs. The Court also vacated 

the regulation to the extent it waived the obligation 

to submit such SIPs. 

7 In most areas, the date of designation was June 

15, 2004. 

provisions in § 51.905(e)(4) which 

waived the requirement to retain 1-hour 

requirements for nonattainment NSR in 

SIPs.5 Also, EPA is proposing to amend 

§ 51.905(a)(3), which details how areas 

transition from 1-hour NAAQS to 8- 

hour NAAQS, and to remove the phrase 

‘‘subject to paragraph (e)(4) of this 

section’’ because paragraph (e)(4) was 

vacated. 

A. Applicability of 1-Hour NSR 

Requirements 

In South Coast, the Court concluded 

that the 1-hour major NSR requirements 

are controls, and that withdrawing them 

from the 8-hour nonattainment NSR SIP 

‘‘would constitute impermissible 

backsliding.’’ 472 F.3d. 882, 900. The 

Court vacated the provision of the Phase 

1 Rule that allowed States, regardless of 

the 8-hour designation for an area, to 

request that the SIP be revised to 

remove 1-hour major NSR requirements 

upon revocation of the 1-hour 

standard.6 As noted above, we have 

previously proposed to remove that 

vacated provision. 74 FR 2936 (January 

16, 2009). In this action, we are 

proposing to add new regulatory text to 

make it clear that any 8-hour 

nonattainment area designated as 1-hour 

nonattainment as of the date of 1997 8- 

hour NAAQS designation must continue 

to apply NSR requirements consistent 

with that area’s 1-hour classification.7

Such areas cannot remove 1-hour major 

NSR requirements from their SIPs based 

solely on revocation of the 1-hour 

standard. The implications for areas that 

are designated attainment for the 1997 

8-hour standard, or have been 

redesignated to attainment for that 

standard, and that were designated 

nonattainment for the 1-hour standard 

at the time of designation for the 1997 

8-hour standard are discussed in section 

III.B.1. of this preamble. 

The areas for which anti-backsliding 

requirements would have applied as of 

June 15, 2004, are listed in Table 1. The 

areas in Table 1 had a 1-hour NAAQS 

nonattainment classification with more 

stringent NSR program requirements 

than the classification under the 1997 8- 

hour standard on the date of designation 

under the 8-hour standard, June 15, 

2004. Some areas potentially affected 

have been redesignated to attainment for 

the 1997 ozone NAAQS since June 15, 

2004, and would be treated as described 

in section III.B. 

TABLE 1—OZONE NONATTAINMENT AREAS POTENTIALLY AFFECTED BY THIS RULE

State 

Part 81, 1997 8-hour NAA Part 81, 1-Hour, NAA 

Area Classification Area Classification 

AZ ................ Phoenix-Mesa, AZ ........................................ Subpart 1 .......... Phoenix, AZ .................................................. Serious. 

CA ............... Los Angeles South Coast Air Basin, CA ...... Severe-17 ......... Los Angeles South Coast Air Basin, CA ...... Extreme. 

CA ............... Los Angeles-San Bernardino Cos (West 

Mojave), CA.

Moderate .......... Southeast Desert Modified AQMA, CA ........ Severe-17. 

CA ............... Riverside (Coachella Valley), CA ................. Serious ............. Southeast Desert Modified AQMA, CA ........ Severe-17. 

CA ............... Sacramento Metro, CA ................................. Serious ............. Sacramento Metro, CA ................................. Severe-15. 

CA ............... San Joaquin Valley, CA ................................ Serious ............. San Joaquin Valley, CA ................................ Extreme. 

CA ............... Ventura Co, CA ............................................ Moderate .......... Ventura Co, CA ............................................ Severe-15. 

CT ............... Greater Connecticut, CT ............................... Moderate .......... Greater Connecticut, CT ............................... Serious. 

DC-MD-VA .. Washington DC-MD-VA ................................ Moderate .......... Washington DC-MD-VA ................................ Severe-15. 

GA ............... Atlanta, GA ................................................... Marginal ............ Atlanta, GA ................................................... Severe-15. 

IL-IN ............ Chicago-Gary-Lake County, IL-IN ................ Moderate .......... Chicago-Gary-Lake County, IL-IN ................ Severe-17. 

LA ................ Baton Rouge, LA .......................................... Marginal ............ Baton Rouge, LA .......................................... Severe-15. 

MA ............... Boston-Lawrence-Worcester (E. MA), MA ... Moderate .......... Boston-Lawrence-Worcester (E. Mass), MANH.Serious. 

MA ............... Springfield (Western MA), MA ...................... Moderate .......... Springfield (Western MA), MA ...................... Serious. 

MD ............... Baltimore, MD ............................................... Moderate .......... Baltimore, MD ............................................... Severe-15. 

NH ............... Boston-Manchester-Portsmouth (SE), NH ... Moderate .......... Boston-Lawrence-Worcester, NH ................. Serious. 

NH ............... Boston-Manchester-Portsmouth (SE), NH 

(Portsmouth-Dover-Rochester, NH part).

Moderate .......... Portsmouth-Dover-Rochester, NH ................ Serious. 

NY ............... Albany-Schenectady-Troy, NY ..................... Subpart 1 .......... Albany-Schenectady-Troy, NY ..................... Marginal. 

NY ............... Buffalo-Niagara Falls, NY* ............................ Subpart 1 .......... Buffalo-Niagara Falls, NY. ............................ Marginal 

NY ............... Essex Co, NY* .............................................. Subpart 1 .......... Essex Co, NY ............................................... Marginal. 

NY-NJ-CT .... New York-N. New Jersey-Long Island, NYNJ-CT.Moderate .......... New York-N. New Jersey-Long Island, NYNJ-CT.Severe-17. 

PA ............... Allentown-Bethlehem-Easton, PA* ............... Subpart 1 .......... Allentown-Bethlehem-Easton, PA-NJ ........... Marginal. 

PA ............... Altoona, PA* ................................................. Subpart 1 .......... Altoona, PA ................................................... Marginal. 

PA ............... Erie, PA* ....................................................... Subpart 1 .......... Erie, PA ......................................................... Marginal. 

PA ............... Harrisburg-Lebanon-Carlisle, PA* ................ Subpart 1 .......... Harrisburg-Lebanon-Carlisle, PA .................. Marginal. 

PA ............... Johnstown, PA* ............................................ Subpart 1 .......... Johnstown, PA .............................................. Marginal. 

PA ............... York, PA* ...................................................... Subpart 1 .......... York, PA ........................................................ Marginal. 

RI ................ Providence, RI (All counties in RI) ............... Moderate .......... Providence, RI (All counties in RI) ............... Serious. 

TX ................ Beaumont-Port Arthur, TX ............................ Marginal ............ Beaumont-Port Arthur, TX ............................ Serious. 

TX ................ Dallas-Fort Worth, TX ................................... Moderate .......... Dallas-Fort Work, TX .................................... Serious. 

TX ................ Houston-Galveston-Brazoria, TX .................. Moderate .......... Houston-Galveston-Brazoria, TX .................. Severe-17. 

WI ................ Milwaukee-Racine, WI .................................. Moderate .......... Milwaukee-Racine, WI .................................. Severe-17. 

* Indicates area has been redesignated to ‘‘attainment’’ as of July 2010 for the 1997 8-hour ozone standard. Areas that have been redesignated to attainment are no longer required to implement nonattainment NSR, but must at a minimum implement the PSD program. 


wwoods2 on DSK1DXX6B1PROD with PROPOSALS_PART 1
51964 Federal Register / Vol. 75, No. 163 / Tuesday, August 24, 2010 / Proposed Rules 

B. Removal of 1-Hour NSR 

Requirements 

1. Treatment of 8-Hour Attainment 

Areas 

EPA does not interpret the South 

Coast decision as requiring that 1-hour 

nonattainment NSR be retained in areas 

designated attainment for the 1997 8- 

hour standard. Accordingly, in this 

notice EPA is clarifying that it will 

continue to follow the provisions of 40 

CFR 51.905(a)(3) with regard to removal 

of 1-hour NSR requirements in 1997 8- 

hour ozone NAAQS attainment areas. 

EPA is not proposing to change its 

treatment of such areas. As explained 

previously, 51.905(a)(3) allows 1997 8- 

hour NAAQS attainment areas, that 

were designated nonattainment for the 

1-hour standard at the time of their 

attainment designation for the 8-hour 

standard, to request that the 1-hour 

nonattainment NSR provisions be 

removed from the SIP. (We note that 

EPA’s practice since the revocation of 

the 1-hour standard has also been to 

allow 1997 8-hour ozone NAAQS 

nonattainment areas, that were 

designated nonattainment for the 1-hour 

standard at the time of their 8-hour 

nonattainment designation, to request 

that the 1-hour nonattainment NSR 

requirements be removed from their 

SIPs upon redesignation of the area to 

attainment of the 1997 8-hour NAAQS.) 

In lieu of nonattainment NSR, these 

areas, with the exception of those 

located in the Ozone Transport Region 

(OTR), are subject to prevention of 

significant deterioration (PSD) program 

requirements based on their 8-hour 

attainment designation or redesignation. 

For areas that are located in the OTR, 

ozone nonattainment NSR requirements 

associated with the moderate 

nonattainment classification apply 

regardless of an area’s designation. 

In the South Coast litigation, the 

petitioners’ briefs characterized the 

Phase 1 Rule as removing ‘‘requirements 

to control pollution from new and 

modified stationary sources in 

nonattainment areas.’’ Opening Brief of 

Environmental Petitioners and South 

Coast Air Quality Management District 

at 17 (emphasis added); see also Brief 

for the Commonwealth of Massachusetts 

et al. at 14. Thus, the issue before the 

Court was whether EPA had acted 

unlawfully by ‘‘permitting 8-hour 

nonattainment areas to only meet 

weaker requirements under their 8-hour 

classifications.’’ Opening Brief of 

Environmental Petitioners and South 

Coast Air Quality Management District 

at 20. The Court distinguished the South 

Coast decision from the decision in 

Greenbaum v. EPA, 370 F.3d 527 (6th 

Cir. 2004) in part because ‘‘Greenbaum 

involved a different ultimate question, 

namely, whether NSR is required for 

attainment areas.’’ 472 F.3d. at 902. As 

the Court noted, ‘‘NSR is a permitting 

process that restricts major 

modifications and new construction 

based on an area’s air-quality 

classification * * *. As relevant, NSR 

requires major facilities to include 

technology consistent with the lowest 

achievable emissions rate (‘‘LAER’’) and 

to offset any increased emissions with 

greater reductions elsewhere.’’ 472 F.3d. 

at 900. The Court stated that ‘‘EPA 

decided that 1-hour NSR requirements 

are no longer required under the Act 

and that areas should be constrained 

only by the NSR requirements for their 

eight-hour classification * * *. This 

marked a change from its 2003 notice of 

proposed rulemaking, in which EPA 

indicated that ‘the major source 

applicability cut-offs and offset ratios 

continue to apply to the extent that the 

area has a higher classification for the 1- 

hour standard than for the 8-hour 

standard.’ ’’ 472 F.3d. at 901. The Court 

stated that the result of the change from 

the 2003 proposal to the approach 

adopted in the final Phase 1 Rule was 

‘‘to subject fewer areas to LAER and to 

offset requirements that themselves are 

weakened.’’ Thus, the issue before the 

Court involved the substitution of one 

set of nonattainment NSR requirements 

for another, and not the replacement of 

nonattainment NSR with a PSD program 

in areas attaining the current NAAQS. 

EPA has determined that 1-hour 

nonattainment major NSR should not 

apply to areas designated attainment for 

the 1997 8-hour standard, regardless of 

the area’s designation for the 1-hour 

standard at the time of designation for 

the 8-hour standard. The interpretation 

that NSR does not apply to areas 

designated attainment for a NAAQS and 

thus is not needed in the SIP for such 

an area is consistent with Greenbaum v. 

EPA, 370 F.3rd 527, at 536 (‘‘It would 

make little sense for [NSR] to be 

included in the post-attainment SIP, as 

the Clean Air Act * * * explicitly states 

that attainment area SIPs must include 

a PSD program.’’). As the DC Circuit 

held in Alabama Power, 636 F.3d 323, 

at 365 (DC Cir. 1979), the applicability 

of PSD is geographically limited by the 

language of CAA section 165(a), which 

states that unless specified conditions 

are met, ‘‘[n]o major emitting facility 

* * * may be constructed in any area 

to which this part [Part C] applies’’ 

(emphasis added). Thus, with respect to 

ozone, areas designated attainment for 

the 1997 8-hour standard are subject to 

section 165(a) but not to the section 

172(c)(5) SIP requirement. For this 

reason, EPA is not requiring that areas 

designated attainment for the 1997 8- 

hour standard retain 1-hour NSR 

provisions. Instead, 8-hour attainment 

areas may request that 1-hour 

nonattainment NSR provisions be 

removed from their SIPs, with PSD 

taking the place of the nonattainment 

NSR program for ozone. For the same 

reason, as set forth below, EPA is 

proposing to revise the regulations to 

clarify that this treatment also applies to 

areas that are redesignated to attainment 

for the 1997 8-hour standard. 

2. Treatment of Areas Designated 

Nonattainment for Both 1-Hour and 8- 

Hour Ozone NAAQS 

Although the Court in South Coast 

determined that 1-hour nonattainment 

NSR must be retained as an antibacksliding measure in 1997 8-hour 

nonattainment areas that were 

designated nonattainment for the 1-hour 

standard at the time of the 8-hour 

designations, the Court did not 

specifically address how long such 

requirements must remain in place. In 

our Phase 1 Rule, we linked removal of 

the 1-hour requirements retained as 

‘‘applicable requirements’’ to attainment 

of the 8-hour NAAQS. The rule at 

§ 51.905(b) provides that an 8-hour 

nonattainment area will remain subject 

to the 13 applicable requirements listed 

in § 51.900(f) until it attains the 8-hour 

standard. Section 51.905(b) further 

provides that after an area attains the 8- 

hour standard, the State may request 

that the 1-hour obligations be shifted to 

contingency measures, but may not 

remove them completely from the SIP. 

The preamble to the Phase 1 Rule 

clarified that, ‘‘it is appropriate to 

maintain these mandated controls to 

remain as part of the implemented SIP 

until an area attains the 8-hour NAAQS 

and is redesignated to attainment.’’ (69 

FR 23983). 

In deciding how to adopt regulatory 

text consistent with the South Coast 

decision, we do not believe it is 

appropriate to add the 1-hour 

nonattainment NSR obligation to the list 

of applicable requirements in § 51.900(f) 

because we do not believe it should 

remain in the SIP as a contingency 

measure after redesignation for the 8- 

hour standard. Consistent with 

Greenbaum v. EPA, 370 F.3rd 527, 536, 

nonattainment major NSR requirements 

are no longer a necessary SIP element 

once an area is redesignated to 

attainment for a NAAQS. Upon 

redesignation to attainment, the PSD 

program requirements would apply to 


wwoods2 on DSK1DXX6B1PROD with PROPOSALS_PART 1
Federal Register / Vol. 75, No. 163 / Tuesday, August 24, 2010 / Proposed Rules 51965 

8The one exception to this is that all areas located 

in the Ozone Transport Region, including those 

designated attainment, are subject to the obligation 

to have a nonattainment NSR program. 

9We note that although the regulatory text 

provides that the requirements of section 51.900(f) 

apply until an area ‘‘attains’’ the 8-hour ozone 

NAAQS, the accompanying preamble text clarifies 

that these requirements apply until an area is 

redesignated as attainment for the 1997 8-hour 

ozone NAAQS. 69 FR 23982–83. 

the area.8 Therefore, nonattainment 

major NSR requirements may be 

removed from the SIP, and do not need 

to be retained as contingency measures 

for a NAAQS. 

In lieu of adding 1-hour major NSR to 

the § 51.900(f) list of applicable 

requirements, we are proposing to add 

a new § 51.905(g) and an analogous new 

Section VII in Appendix S. The new 

sections clarify the obligation for any 

1997 8-hour nonattainment area with a 

1-hour nonattainment designation as of 

the effective date of designation for the 

8-hour standard (June 15, 2004 for most 

areas) to continue to apply 1-hour 

nonattainment NSR requirements 

consistent with the area’s 1-hour 

classification, as listed in 40 CFR part 

81 subpart C. 

Although we are not proposing to add 

NSR to the list of applicable 

requirements in 51.900(f), we are 

proposing that, as with those 

requirements, 1-hour NSR requirements 

continue to be required SIP elements 

until redesignation to attainment of the 

1997 8-hour ozone NAAQS.9 Under 

EPA’s proposed revision set forth above, 

the 1-hour major NSR requirements may 

be removed only after an area has 

attained and been redesignated for the 

1997 8-hour NAAQS. Under this 

approach, the 1-hour NSR requirements 

would be treated in a manner similar to 

the 13 applicable requirements listed at 

§ 51.900(f), except that the State would 

not be required to retain the 1-hour NSR 

requirements as contingency measures. 

Instead, PSD would apply upon 

redesignation to attainment for the 1997 

8-hour standard, and 1-hour NSR 

requirements could be removed entirely 

from the SIP. 

As set forth in section III.B.2.b., we 

are also requesting comment on a 

separate and additional basis— 

attainment of the 1-hour ozone NAAQS 

(plus specified criteria)—for allowing 

States to remove 1-hour NSR 

requirements. This opportunity to 

remove 1-hour NSR requirements from 

the approved SIP would be in addition 

to the approach of allowing States to 

remove 1-hour NSR upon redesignation 

to attainment for the 8-hour NAAQS. 

Under this additional approach, where 

an area attains the 1-hour standard and 

meets certain other conditions (as 

determined by EPA, in a rulemaking 

described below) but is still violating 

the 8-hour standard, the State would be 

permitted, but not required, to remove 

the 1-hour nonattainment NSR 

requirements and apply the NSR 

requirements associated with the 8-hour 

classification. 

We note that neither EPA’s proposal 

nor the separate, additional approach to 

removal would have any effect on any 

source permit conditions established 

during the time period the 1-hour major 

NSR program applied. The NSR 

regulations do not provide a mechanism 

for major NSR permit conditions 

established under the 1-hour standard to 

be removed from a permit or modified 

when a SIP is later revised to remove 

the 1-hour NSR thresholds and offset 

requirements. Replacement or removal 

of NSR SIP provisions does not relieve 

sources of their obligations under 

previously established permit 

conditions. 

In addition, we note that this proposal 

to allow removal of the 1-hour major 

NSR requirements after an area has 

attained and been redesignated for the 

1997 8-hour NAAQS could be affected 

by the transition to a newer ozone 

standard. 

a. Rationale for Removal of 1-Hour NSR 

Upon Redesignation to Attainment of 

8-Hour NAAQS 

We are proposing to require areas to 

retain 1-hour major NSR requirements 

until the area attains and is redesignated 

for the 1997 ozone 8-hour standard, 

regardless of when, if ever, the area 

attains the 1-hour standard. The 

rationale for this approach, as set forth 

in the June 2, 2003, Proposed Rule to 

Implement the 8-Hour Ozone National 

Ambient Air Quality Standard (68 FR 

32824), was that the 1997 8-hour 

standard was the standard that EPA 

determined would protect public health 

and the environment. We adopted this 

approach for the 13 listed applicable 

requirements in § 51.900(f), as discussed 

in the final Phase 1 Rule (69 FR 23982– 

83). We believe this rationale also 

applies to NSR. As stated in the Phase 

1 Rule, Congress contemplated that 

States implement certain requirements 

mandated under Subpart 2, including 

specific NSR thresholds and offsets. 

Once an area demonstrates that it has 

met and can maintain the more health 

protective standard (the 1997 8-hour 

NAAQS), it would be appropriate to 

remove 1-hour NSR requirements. In 

addition, adopting this approach for 

NSR would result in similar treatment 

of NSR and the applicable requirements 

in § 51.900(f), the only difference being 

that States would not need to include 

nonattainment NSR as a contingency 

measure. We believe it is appropriate to 

treat NSR in a manner consistent with 

the § 51.900(f) applicable requirements. 

While we are taking comment on the 

possibility of allowing States to remove 

NSR earlier than the other requirements 

in some instances (see discussion below 

on the additional basis), we do not plan 

to finalize that approach unless we are 

persuaded that NSR is sufficiently 

different from the applicable 

requirements identified in 51.900(f) to 

warrant different treatment. 

EPA’s proposed approach aligns with 

EPA’s current practice regarding areas 

that were initially designated as 

attainment for the 1997 8-hour NAAQS 

or have been redesignated to attainment 

for the 1997 8-hour ozone NAAQS. As 

noted above, EPA’s current practice is to 

allow areas to revise their SIPs to 

remove the 1-hour NSR requirements. 

This approach harmonizes the treatment 

of areas initially designated as 8-hour 

attainment and nonattainment areas that 

are redesignated to attainment for the 8- 

hour standard. In lieu of nonattainment 

NSR, these areas become subject to PSD 

programs based on their 8-hour 

attainment designation or redesignation. 

Additionally, we propose adding 

language to the CFR to clarify 

applicability of section 181(b)(4)(B) for 

areas not attaining the NAAQS. 

Notwithstanding revocation of earlier 

ozone NAAQS, States with areas 

designated nonattainment for earlier 

ozone NAAQS, and classified as severe 

or extreme for such standards as 

provided in 40 CFR part 81, remain 

subject to the obligation to adopt 

programs under sections 181(b)(4) of the 

CAA. Section 181(b)(4)(B) specifies 

applicability of NSR per requirements 

for extreme areas for specific instances 

of failure to meet attainment schedules. 

b. Supplemental Proposal: Removal of 

1-Hour NSR Upon Attainment of 1-Hour 

NAAQS and Determination of Eligibility 

To Remove NSR Requirements 

(1) Attainment of 1-Hour NAAQS and 

Related Criteria 

We are requesting comment on an 

additional approach that would allow 

States to remove the 1-hour NSR 

requirements upon attainment of the 1- 

hour ozone NAAQS and satisfaction of 

other criteria discussed below in section 

ii. After notice and comment 

rulemaking, EPA would make a 

determination that the area has attained 

the 1-hour standard and met the 

additional requisite criteria. This would 

serve as a ‘‘determination of eligibility to 

remove 1-hour NSR requirements.’’ An 

area that receives such a determination 


wwoods2 on DSK1DXX6B1PROD with PROPOSALS_PART 1
51966 Federal Register / Vol. 75, No. 163 / Tuesday, August 24, 2010 / Proposed Rules 

would still be required to implement the 

nonattainment NSR requirements 

associated with its 8-hour classification. 

In our 2003 proposed rule, we took 

comment on the option of allowing 1- 

hour obligations to be removed upon 

attaining the level of the 1-hour 

standard. We noted that the rationale for 

allowing 1-hour obligations to be 

removed upon attaining the level of the 

1-hour standard was that ‘‘Congress 

intended an area to continue to 

implement these obligations until it 

attained the 1-hour standard, at which 

time the area would be able to 

discontinue implementation upon a 

showing of continued maintenance’’ (68 

FR 32824, June 2, 2003). While we did 

not finalize this option for the 

§ 51.900(f) applicable requirements, we 

are requesting comment on whether we 

should adopt a variant of it for NSR, and 

whether doing so would be consistent 

with the CAA and the South Coast 

decision. In the final Phase 1 Rule, EPA 

decided that attaining the 1-hour 

standard would not be a basis for 

allowing States to remove from the SIP 

the 13 applicable requirements related 

to 1-hour nonattainment identified at 

51.900(f). The question is whether NSR 

thresholds and offsets are more closely 

linked to a particular standard than the 

13 requirements listed in 51.900(f), and 

thus might be removed following a 

determination of attainment of that 

standard, coupled with other 

safeguards. 

As noted above in the discussions of 

8-hour attainment areas and whether 

NSR requirements should become a 

contingency measure in a maintenance 

plan attainment SIP, Congress clearly 

intended that nonattainment major NSR 

was required only until the area was 

redesignated to attainment. After that 

point, nonattainment major NSR for that 

area would normally be superseded by 

the PSD program, whose purpose is ‘‘to 

protect public health and welfare from 

any actual or potential adverse effect 

which in the Administrator’s judgment 

may reasonably be anticipated to occur 

* * * notwithstanding attainment and 

maintenance.’’ 42 U.S.C. 7470. In the 

case of areas that remain nonattainment 

for the 8-hour standard after attaining 

the 1-hour standard, however, the 8- 

hour major NSR requirements would 

apply rather than PSD. Thus, the 

concern regarding the retention of 

nonattainment major NSR requirements 

in an attainment SIP is not present here. 

We are interested in comments 

addressing whether 1-hour NSR is 

sufficiently different from the applicable 

requirements identified in the Phase 1 

Rule that we should allow States to 

remove it from their SIPs prior to 

redesignation for the 1997 8-hour ozone 

standard. 

(2). Defining ‘‘Eligibility To Remove 

NSR Requirements’’ Associated With the 

Revoked 1-Hour Standard 

In this section, we address which 

requirements, in addition to attainment 

for the 1-hour ozone standard, the 

Supplemental Option would impose on 

an area seeking to remove from its SIP 

1-hour NSR requirements prior to 

redesignation for the 1997 8-hour 

standard. In the Phase 1 Rule, we stated 

that upon revocation of the 1-hour 

standard, EPA was no longer obligated 

to determine whether an area had 

attained that standard. However, under 

this supplemental approach, we are 

proposing that a determination by EPA 

that an area has attained the 1-hour 

standard would be among the criteria 

for issuance of a determination of 

eligibility to remove 1-hour NSR 

obligations. Prior to the time that the 1- 

hour standard was revoked, a change in 

an ozone nonattainment area’s 

designation status required that the area 

satisfy the criteria in section 

107(d)(3)(E) of the CAA. These criteria 

include: (i) A finding of attainment of 

the 1-hour standard based upon the 

most recent three consecutive years of 

complete, quality assured air quality 

data; (ii) the applicable implementation 

plan for the area under section 110(k) 

has been fully approved by the 

Administrator; (iii) the improvement in 

air quality leading to attainment of the 

1-hour NAAQS is due to permanent and 

enforceable reductions in emissions 

resulting from implementation of the 

applicable implementation plan and 

Federal air pollutant control regulations 

and other permanent and enforceable 

reductions; (iv) the Administrator has 

fully approved a maintenance plan for 

the area as meeting the requirements of 

section 175A; and (v) the State 

containing such area has met all 

requirements applicable to the area 

under CAA section 110 and part D that 

pertain to the 1-hour ozone standard. 

Under this alternative, additional 

approach, we are taking comment on 

which of the five criteria that would 

have applied for purposes of 

redesignating an area for the 1-hour 

standard should apply for declaring that 

an area has attained the 1-hour standard 

and is eligible to remove 1-hour NSR 

requirements. 

Under EPA’s supplemental option, 

removal of the 1-hour requirements 

would be permitted upon a 

determination of eligibility to remove 

NSR requirements. To remove such 

programs, States would need to submit 

a revision to their SIP, subject to the 

provisions of section 110(l) which states 

that EPA may not approve a SIP revision 

‘‘if the revision would interfere with any 

applicable requirement concerning 

attainment and reasonable further 

progress (as defined in section 171), or 

any other applicable requirement of the 

Act.’’ 

In our Phase 1 Rule, which was 

vacated by the Court, we concluded that 

a State’s removal of 1-hour NSR 

requirements would not interfere with 

8-hour attainment or reasonable further 

progress. However, upon additional 

consideration we now believe that we 

do not currently have adequate data on 

the extent to which States may be 

relying on particular major NSR 

thresholds and offset ratios for the 

growth projections contained in their 8- 

hour attainment plans. Therefore, we 

are not proposing an advance section 

110(l) determination as part of this 

action. We believe a case-by-case 

approach to section 110(l) under the 

supplemental option detailed in this 

proposal will ensure that any SIP 

changes upon a determination of 

eligibility to remove NSR requirements 

for the 1-hour ozone NAAQS would not 

interfere with reasonable further 

progress towards attainment of the 

8-hour ozone NAAQS. 

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, 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) 

under the provisions of the Paperwork 

Reduction Act, 44 U.S.C. 3501 et seq. 

and has assigned OMB Control Number 

2060–0594. The OMB control numbers 


wwoods2 on DSK1DXX6B1PROD with PROPOSALS_PART 1
Federal Register / Vol. 75, No. 163 / Tuesday, August 24, 2010 / Proposed Rules 51967 

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 this rule on small entities, small 

entity is defined as: (1) A small business 

that is a small industrial entity as 

defined in the U.S. Small Business 

Administration (SBA) regulations at 13 

CFR part 201; (2) a small government 

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 this proposed rule on small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

This proposed rule will not impose any 

requirements on small entities. Rather, 

we are issuing this rule to give 

additional clarity to States on the 

transition from 1-hour to 8-hour major 

NSR requirements. 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 (URMA), 2 U.S.C. 1531–1538 for 

State, local, and Tribal governments and 

the private sector. The action imposes 

no enforceable duty on any State, local 

or Tribal governments or the private 

sector. Therefore, this action is 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 is contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. This 

action proposes to revise the rule for 

implementing the 1997 8-hour ozone 

NAAQS to address how nonattainment 

major NSR requirements associated with 

the former 1-hour ozone NAAQS should 

apply under the anti-backsliding 

provisions of the implementation rule. 

Also proposed is a framework for 

allowing States to remove and/or no 

longer implement the 1-hour major NSR 

requirements when certain prescribed 

conditions are met. This proposed rule 

responds to the ruling by the U.S. Court 

of Appeals for the District of Columbia 

Circuit that the 1-hour major NSR 

program, as it applies to areas that failed 

to attain the 1-hour standard by the 

required date, is a required control to 

prevent backsliding. 

E. Executive Order 13132—Federalism 

This proposed rule does not have 

federalism implications. It will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This 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. Thus, 

Executive Order 13132 does not apply 

to this proposed rule. 

In the spirit of Executive Order 13121 

and consistent with EPA policy to 

promote communications between EPA 

and State and local governments, EPA 

specifically solicits comments on this 

proposed rule 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 (65 FR 67249, November 9, 

2000). It does not have a substantial 

direct effect on one or more Indian 

Tribes, since no Tribe has to develop a 

SIP under this proposal. Furthermore, 

this proposed rule does 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 

proposed revisions to the regulations do 

nothing to modify that relationship. 

Thus, Executive Order 13175 does not 

apply to this action. 

EPA specifically solicits additional 

comment on the proposed rule from 

Tribal officials. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

This action is not subject to Executive 

Order 13045 (62 FR 19885, April 23, 

1997) because it is not economically 

significant as defined in Executive 

Order 12866, and because the agency 

does not believe the environmental 

health or safety risks addressed by this 

action present a disproportional risk to 

children. 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. The public is 

invited to submit comments or identify 

peer-reviewed studies and data that 

assess effects of this proposed action. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This proposed rule is not a 

‘‘significant energy action’’ as defined in 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355 (May 

22, 2001)) because it is not likely to 

have a significant adverse effect on the 

supply, distribution, or use of energy. 

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. 

I. National Technology Transfer and 

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 rule does not involve 

technical standards. Therefore, EPA is 

not considering the use of any voluntary 

consensus standards. 


wwoods2 on DSK1DXX6B1PROD with PROPOSALS_PART 1
51968 Federal Register / Vol. 75, No. 163 / Tuesday, August 24, 2010 / Proposed Rules 

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 implement a previously 

promulgated health-based Federal 

standard (the 8-hour ozone NAAQS) 

that is designed to protect all segments 

of the general population. 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 section 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.’’ 

List of Subjects in 40 CFR Part 51 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Ozone, Transportation, 

Volatile organic compounds. 

Dated: August 18, 2010. 

Lisa P. Jackson, 

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 51—REQUIREMENTS FOR 

PREPARATION, ADOPTION, AND 

SUBMITTAL OF IMPLEMENTATION 

PLANS 

1. The authority citation for part 51 

continues to read as follows: 

Authority: 23 U.S.C. 101; 42 U.S.C. 7401– 

7671q. 

2. Section 51.905 is amended by 

revising paragraph (a)(3)(i), and by 

adding a new paragraph (g) to read as 

follows: 

§ 51.905 How do areas transition from the 

1-hour NAAQS to the 8-hour NAAQS and 

what are the anti-backsliding provisions? 

(a) * * * 

(3) * * * 

(i) Obligations in an approved SIP. 

For an area that is designated 8-hour 

NAAQS attainment/1-hour NAAQS 

nonattainment, the State may request 

that obligations under the applicable 

requirements of § 51.900(f) be shifted to 

contingency measures, consistent with 

sections 110(l) and 193 of the CAA, after 

revocation of the 1-hour NAAQS; 

however, the State cannot remove the 

obligations from the SIP. For such areas, 

the State may request that the 

nonattainment major NSR provisions 

that applied based on the area’s 

designation and classification under the 

1-hour NAAQS be removed from the SIP 

on or after the date of revocation of the 

1-hour NAAQS and need not be shifted 

to contingency measures. 

* * * * * 

(g) What other requirements for the 

1-hour standard apply? (1) The 

requirements for nonattainment new 

source review that applied pursuant to 

sections 172(c)(5), 173, and 182 of the 

Clean Air Act based on the area’s 

classification under the 1-hour NAAQS 

continue to be required elements of an 

approvable implementation plan for any 

ozone nonattainment area that was 

designated nonattainment for the 1-hour 

NAAQS at the time of designation as 

ozone nonattainment for the 8-hour 

NAAQS. Notwithstanding the 

revocation of the 1-hour NAAQS, the 

designation and classification of the 

area for the 1-hour standard as provided 

in 40 CFR Part 81 shall apply for 

determining the applicable 1-hour NSR 

obligation for an area. These 

requirements remain required elements 

of the implementation plan until such 

time as the area is redesignated to 

attainment for the 1997 8-hour 

attainment area for the ozone NAAQS 

pursuant to Clean Air Act section 

107(d)(3)(E). 

(2) Notwithstanding revocation of the 

1-hour ozone NAAQS, States with areas 

designated nonattainment for the 1-hour 

ozone NAAQS and classified as severe 

or extreme for that standard as provided 

in 40 CFR Part 81 remain subject to the 

obligation to adopt programs under 

sections 181(b)(4) of the CAA for the 1- 

hour ozone NAAQS. 

3. Section 51.914 is revised to read as 

follows: 

§ 51.914 What new source review 

requirements apply for ozone 

nonattainment areas? 

(a) The requirements for new source 

review for the 8-hour ozone standard are 

located in § 51.165. 

(b) For areas designated 

nonattainment for the 1-hour ozone 

standard as of the effective date of 

designation for the 8-hour standard, 

values for applicability thresholds and 

offset requirements as required under 

§ 51.165 shall be determined by the 1- 

hour nonattainment classifications 

listed for those areas in 40 CFR Part 81, 

Subpart C. The 1-hour applicability 

thresholds and offset requirements shall 

be retained until such time as the area 

is redesignated to attainment for the 

1997 8-hour ozone NAAQS under 

section 107(d)(3)(E) of the Clean Air 

Act, at which point the State may 

request their removal. 

4. Appendix S to part 51 is amended 

by adding section VII. to read as follows: 

Appendix S to Part 51—Emission Offset 

Interpretative Ruling 

* * * * * 

VII. Anti-Backsliding Measures 

1-hour ozone NAAQS nonattainment area 

new source review. 

Any 8-hour ozone nonattainment area that 

was designated nonattainment for the 1-hour 

ozone NAAQS at the time of designation for 

the 8-hour NAAQS must continue to apply 

new source review requirements consistent 

with that area’s 1-hour classification, as 

listed in 40 CFR Part 81, Subpart C. These 

requirements remain applicable until such 

time as the 8-hour nonattainment area is 

redesignated to attainment for the 8-hour 

ozone NAAQS standard under 107(d)(3)(E) of 

the Clean Air Act. 

[FR Doc. 2010–20992 Filed 8–23–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 55 

[EPA–R01–OAR–2010–0442; A–1–FRL– 

9167–8] 

Outer Continental Shelf Air 

Regulations Consistency Update for 

Massachusetts 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule-consistency 

update. 

SUMMARY: EPA is proposing to update to 

a portion of the Outer Continental Shelf 

(‘‘OCS’’) Air Regulations. Requirements 

applying to OCS sources located within 

25 miles of States’ seaward boundaries 

must be updated periodically to remain 


wwoods2 on DSK1DXX6B1PROD with PROPOSALS_PART 1