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Citation: 74 Fed. Reg. 48495 2009

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### Federal Register/Vol. 74, No. 183/Wednesday, September 23, 2009/Proposed Rules

E.Executive Order13132,Federalism

Executive Order 13132, entitled "Federalism" (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure "meaningful and timely inputby State and local officials in the development of regulatory policies thathave federalism implications." "Policies that have federalism implications" is defined in the Executive Order to include regulations thathave "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 ofgovernment."

This action does not have federalism implications. It will nothave substantial direct effects on the States, onthe relationship between the national government and the States, or on the distribution ofpower and responsibilities among the various levels ofgovernment, as specified in Executive Order 13132, because it merely disapproves certain State requirements for inclusion into the SIP and does not alter the relationship or the distribution ofpower and responsibilities established in the Clean Air Act. Thus, Executive Order 13132 does not apply to this action.

F.Executive Order13175, Coordination WithIndian TribalGovernments

This action does not havetribal implications, as specified in Executive Order 13175 (59 FR 22951, November 9, 2000), because the SIP EPA isproposing to disapprove would not apply in Indian country located in the State, and EPA
notes thatit willnot impose substantial direct costs on tribal governments or preempt tribal law. Thus, Executive Order 13175 does not apply to this action.
G.Executive Order13045,Protectionof ChildrenFromEnvironmentalHealth Risks andSafetyRisks

EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such thatthe analysis required under section 5-501 ofthe Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it isnot

an economically significant regulatory actionbased on health or safety risks subject to Executive Order 13045 (62FR 19885, April 23, 1997). This proposed SIP disapproval under section 110 and subchapter I, part D ofthe Clean Air Act will not in-and-ofitself create any new regulations but simply disapproves certain State requirements for inclusion into the SIP.

H. Executive Order13211,Actions That Significantly Affect EnergySupply, Distribution,or Use

This proposed rule 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.

L NationalTechnologyTransferand AdvancementAct
Section 12(d) ofthe National Technology Transfer and Advancement Act of1995 ("NTTAA"), Public Law No. 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary

consensus standards in itsregulatory 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 byvoluntary 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.

The EPAbelieves thatthis action is not subject to requirements of Section 12(d) ofNTTAA because application of those requirements wouldbe inconsistent with the Clean Air Act. 

### J.Executive Order12898:Federal Actions ToAddressEnvironmental JusticeinMinorityPopulations and Low-Income Populations

Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its mainprovision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part oftheir mission by identifying and addressing,

as appropriate, disproportionately high and adverse human health or environmental effects oftheir programs, policies, and activities onminority populations and low-income populations in the United States.

EPA lacks the discretionary authority to address environmental justice in this proposed action. In reviewing SIP submissions, EPA's role isto approve or disapprove state choices, based on the criteria ofthe Clean Air Act. Accordingly, this action merely proposes to disapprove certain State requirements for inclusion into the SIP under section 110 and subchapter I,part D ofthe Clean Air Act and will not inand-ofitselfcreate any new requirements. Accordingly, itdoes not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898.
List of Subjects in40 CFRPart52

Environmental protection, Air pollution control, Carbon monoxide, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

Authority: 42 U.S.C. 7401 etseq. Dated: September 8, 2009. Lawrence E.Starfield, ActingRegional Administrator, Region6. [FRDoc. E9-22808 Filed 9-22-09; 8:45 am]

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40 CFR Part 52
[EPA-R09-OAR-2009-0188; FRL-8960-6]

Determination of Attainment ofthe 1997 8-Hour Ozone Standard for Imperial County, CA

AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule.

SUMMARY: The EPA isproposing to determine thatthe Imperial County, California moderate 8-hour ozone nonattainment area has attained the 1997 8-hour National Ambient Air Quality Standard (NAAQS) for ozone. The State ofCalifornia has requested this determination, which isbased upon three years ofcertified ambient air monitoring data that show the area has monitored attainment ofthe 8-hour

ozone NAAQS since the 2006-2008 monitoring period. Ifthis proposed determination is made final, the requirements for the State to submit certain reasonable further progress requirements, an attainment demonstration, contingency measures and other planning requirements ofthe Clean Air Act related to attainment of the 1997 8-hour ozone NAAQS shall be suspended for so long as the area continues to attain the 8-hour ozone NAAQS. DATES: Comments must be received on
or before October 23, 2009. Public
comments on this action are requested and will be considered before taking final action. 

### 48495

### Federal Register/Vol. 74, No. 183/Wednesday, September 23, 2009/Proposed Rules

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09- OAR-2009-0188, by one ofthe following methods:

* http://www.regulations.gov:Follow the online instructions for submitting
comments.

* E-mail:tax.wienke@epa.gov. 

### * Fax:415-947-3579. * Mail:Wienke Tax, Air Planning Office, Environmental Protection Agency, Region 9, 75 Hawthorne Street, San Francisco, CA 94105-3901.

* HandDelivery:Marty Robin, Air Planning Office, Environmental Protection Agency, Region 9, 75 Hawthorne Street, San Francisco, CA 94105-3901. Such deliveries are only accepted during the Regional Office's normal hours ofoperation. The Regional Office's official hours ofbusiness are Monday through Friday, 8 to 4:55 excluding Federal holidays.

Instructions: Direct your comments to Docket ID No. EPA-R09-OAR-2009- 0188. EPA's policy isthat all comments received will be included in the public docket without change and maybe made available online at www.regulations.gov,including any personal information provided, unless the comment includes information claimed tobe Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information thatyou consider to be CBIor otherwise protected throughhttp:// www.regulations.govor e-mail. The www.regulations.govWeb site is an "anonymous access" system, which

means EPA will not know youridentity

or contact information unless you provide itin the body ofyour comment. Ifyou 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 ofthe comment that isplaced in the public docket and made available on the Internet. Ifyou submit an electronic comment, EPA recommends thatyou include your
name and other contact information in thebody ofyour comment andwith any disk orCD-ROM you submit. IfEPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may notbe able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, andbe free of any defects or viruses. For additional information about EPA's public docketvisit the EPA Docket Center homepage at http:// www.epa.gov/epahome/dockets.htm.
FOR FURTHER INFORMATION CONTACT: Wienke Tax, Air Planning Office, Environmental Protection Agency, Region 9, (415) 947-4192,
tax. wienke@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, "we," "us" and "our" refer to EPA.
Table of Contents

I.What Action Is EPA Proposing to Take? II.What Isthe Effect ofThis Action? III. WhatIs the Background forThis Action? IV. What Is EPA's Analysis ofthe Relevant Air QualityData? V. Proposed Action VI. Statutory and Executive Order Reviews
I.What Action Is EPA Proposing to Take?

EPA isproposing to determine that the Imperial County moderate 8-hour

ozone nonattainment area inCalifornia has attained the 1997 8-hourNational Ambient Air Quality Standard (NAAQS) for ozone. This determination isbased upon three years ofcertified ambient air monitoring data that show thatthe area has monitored attainment of the 8-hour

ozone NAAQS of0.08 parts permillion (ppm)since the 2006-2008 monitoring period. Quality controlled and quality assured ozone data for 2009 that are available in the EPA Air Quality System (AQS)database, but notyet certified, also show thatthe area continues to attain the 8-hour ozone NAAQS.'

II. What Is the Effect ofThis Action?

Ifthis determination is made final, under the provisions ofEPA's ozone implementation rule (40 CFR section 51.918), the requirements for the State
to submit certain reasonable further progress requirements, an attainment demonstration, and contingency

measures under section 172(c)(9) ofthe Clean Air Act (CAA) and any other planning State Implementation Plans (SIPs)related to attainment ofthe 1997 8-hour ozone NAAQS in Imperial County willbe suspended for so long as the area continues to attain the ozone NAAQS. This finding does not address the 2008 8-hour ozone standard of0.075 ppm, which EPA promulgated on March 12, 2008 (see 73 FR 16435, March 27, 2008).

Ifthis rulemaking is finalized and EPA subsequently determines, after notice-and-comment rulemaking in the Federal Register, thatthe area has violated the 1997 8-hour ozone standard, the basis for the suspension of these requirements for that area would

no longer exist, and the area would thereafter have to address the pertinent requirements within a reasonable period

1See AQS Quicklook Report dated August 24, 2009 inthe docket fortoday's action. oftime. EPA would establish thatperiod taking into account the individual circumstances surrounding the particular submissions at issue.

This proposed action is not equivalent to the redesignation ofthe Imperial County area to attainment underCAA section 107(d)(3), because we would not yet have an approved maintenance plan for the area as required under section 175A ofthe CAA,nor a determination that the area has met the other requirements for redesignation. The classification and designation status of the area would remain moderate nonattainment for the 1997 8-hour

ozone NAAQS until such time as EPA determines thatitmeets the CAA requirements for redesignation to attainment.

III.What Isthe Background for This Action?

On April 30, 2004 (69 FR 23857), EPA designated as nonattainment any area that was violating the 1997 8-hour

ozone NAAQS based on the three most recent years (2001-2003) ofair quality data. Atthat time, a number ofareas in California, including Imperial County,

were designated as nonattainment. See 40 CFR 81.305. Imperial County was initially classified as a marginal nonattainment area with a maximum attainment date ofJune 15, 2007. 69 FR 23858. On February 13, 2008, EPA determined that Imperial County had failed to attain the 1997 8-hour ozone NAAQS by the applicable attainment deadline and reclassified the area by operation oflaw as a moderate 8-hour

ozone nonattainment area, with a maximum attainment date ofJune 15, 2010. 73 FR 8209 (final rule effective March 14, 2008). This determination

was based on ambient air quality data from the 2004-2006 monitoring period. More recent air quality data, however, indicate that the Imperial County area is

now attaining the 1997 8-hour ozone standard.

On February 19, 2009, the California Air Resources Board requested that EPA determine thatthe Imperial County area is attaining the 1997 8-hour ozone standard of0.08 ppm, based on certified ambient air monitoring data from the 2006-2008 monitoring period.
IV. WhatIs EPA'sAnalysis ofthe Relevant AirQuality Data?

In California's request and a subsequent certification letter,the State certified that the air quality monitoring datait submitted for the years 2006, 2007, and 2008 was accurate and quality-assured, consistent with state 

### 48496Federal Register/Vol. 74, No. 183/Wednesday, September 23, 2009/Proposed Rules

andEPA monitoring requirements. 23 via http://www.epa.gov/ttn/airs/ air quality data for Imperial County, California submitted these data to EPA's airsaqs/.Table 1 summarizes the ozone from 2006 to 2008. AQS, where itis available to the public

TABLE 1-FOURTH HIGHEST 8-HOUR AVERAGE OZONE CONCENTRATIONS AND DESIGN VALUES (IN PARTS PER MILLION, 

### PPM) INIMPERIAL COUNTY, CALIFORNIA 

### 2006-2008

Monitor site 2006 2007 2008 2006-2008 Design value

Calexico East

.............................................................................................. . ..078 .083 .078 .079 Calexico Ethel

............................................................................................ .068 .087 .087 .080 ElCentro

................................................................................................... .. .. .091 .083 .074 .082 Niland

............................................................................................................... . .072 .078 .075 .075 Westmorland

.................................................................................................... .086 .085 .077 .082

Under EPA regulations at 40 CFR part 50, the 8-hour ozone standard is attained when the 3-year average ofthe annual fourth-highest daily maximum 8- hour average ozone concentrations at an
ozone monitor is less than or equal to 0.08ppm (i.e.,0.084 ppm, based on the rounding convention in 40 CFR part 50, Appendix I). This 3-year average is referred to as the design value. When the design value is less than or equal to 0.084 ppm (84 parts per billion (ppb)) at each monitor within the area, then the

area is meeting the NAAQS. See 69 FR 23857 (April 30, 2004) for further information. Also, the data completeness requirement is met when the average percent ofdays with valid ambient monitoring data is greater than 90%, and no single year has less than 75% data completeness as determined in Appendix I of40 CFR part 50.

Table 1 shows the fourth highest daily maximum 8-hour average ozone concentrations for the Imperial County monitors for the years 2006-2008. EPA's review ofthese data indicate that the Imperial County nonattainment area has
met and continues to meet the 8-hour

ozone NAAQS.

EPA is soliciting public comments on the issues discussed in this notice or on other relevant matters. EPA will consider these comments before taking final action. Interested parties may participate in the Federal rulemaking procedure by submitting written
comments to the EPA office listed in the ADDRESSES section ofthis Federal Register.

V. Proposed Action

EPA isproposing to determine that the Imperial County, California ozone nonattainment area has attained the 1997 8-hour ozone standard based on three years ofcertified ambient air monitoring data at all ozone monitoring

2Letter from James Goldstene,Executive Officer,
California AirResources Board, to Laura Yoshii, Acting RegionalAdministrator, U.S. EPA Region 9, dated February 19, 2009. sites in the area. Quality-assured data through the present demonstrate that the area continues to attain the standard through June 2009. As provided in40 CFR 51.918, ifEPA finalizes this determination, itwould suspend the requirements for California to submit an attainment demonstration, a reasonable further progress plan, and contingency

measures under section 172(c)(9), and any other planning SIP related to attainment ofthe 1997 8-hour ozone NAAQS for the Imperial County area. This suspension ofrequirements would be effective as long as the area continues
to attain the 1997 8-hour ozone standard. Please note thatthis action addresses only the 1997 8-hour ozone standard of0.08 ppm, and does not address the 2008 8-hour ozone standard of0.075 ppm. VI. Statutory andExecutive Order Reviews

Under Executive Order 12866 (58FR 51735,October 4, 1993), this proposed action is not a "significant regulatory action" and therefore is not subject to review by the Office ofManagement and Budget. For this reason, this action is also not subject to Executive Order 13211, "Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use" (66 FR 28355, May 22, 2001). This action proposes tomake

a determination based on air quality data, and would,iffinalized, result in the suspension ofcertain Federal requirements. Accordingly, the Administrator certifies thatthis rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5U.S.C. 601, etseq.). Because this rule proposes tomake a determination based on air quality data, and would, if finalized, result inthe suspension of certain Federal requirements, it does not

3Letter from Karen Magliano, Chief, AirQuality Data Branch, California Air Resources Board, to Laura Yoshii, Acting Regional Administrator, EPA Region 9, dated March 4, 2009. contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of1995 (Pub.L. 104-4).

This proposed rule also does not have tribal implications because it willnot have a substantial direct effect on one or
more Indian tribes, on the relationship between the Federal Government and Indian tribes, or onthe distribution of power and responsibilities between the Federal Government and Indian tribes,

as specified by Executive Order 13175 (59FR 22951,November 9, 2000). This proposed action also does not have Federalism implications because it does not have substantial direct effects on the States, on therelationship between the national government and the States, or
onthe distribution ofpower and responsibilities among the various levels ofgovernment, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because itmerely proposes to make a determination based

on air quality data and would, if finalized, result in the suspension of certain Federal requirements, and does not alter the relationship or the distribution ofpower and responsibilities established in the Clean Air Act. This proposed rule alsois not subject to Executive Order 13045 "Protection ofChildren from Environmental Health Risks and Safety Risks" (62 FR 19885, April 23, 1997), because it proposes to determine that air quality in the affected area is meeting Federal standards.

The requirements ofsection 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note)do not apply because it would be inconsistent with applicable law for EPA, when determining the attainment status ofan area, to use voluntary

consensus standards in place of 

### 48497Federal Register/Vol. 74, No. 183/Wednesday, September 23, 2009/Proposed Rules

promulgated air quality standards and monitoring procedures that otherwise satisfy the provisions ofthe CleanAir Act.

This proposed rule does not impose

an information collection burden under the provisions ofthe Paperwork Reduction Act of 1995 (44 U.S.C. 3501,
etseq.)

Under Executive Order 12898, EPA finds thatthis rule involves aproposed determination of attainment based on air quality data and will not have disproportionately high and adverse human health or environmental effects

on any communities in the area, including minority and low-income communities.
List of Subjects in40 CFR Part52

Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen oxides, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.

Authority: 42 U.S.C. 7401 etseq. Dated: September 11, 2009. Laura Yoshii, ActingRegionalAdministrator, Region9. [FRDoc. E9-22933 Filed 9-22-09; 8:45 am]

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40 CFR Part 52 [EPA-R02-OAR-2009-0638; FRL-8960-9]

Determinations of Attainment ofthe One-Hour and Eight-Hour Ozone Standards for Various Ozone Nonattainment Areas in New Jersey and Upstate New York

AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule.

SUMMARY: The EPA isproposing to determine that various ozone nonattainment areas in New York and NewJersey have attained the one-hour and eight-hour National Ambient Air Quality Standards for ozone. For the one-hour standard, the areas are: the Atlantic City and Warren County areas in New Jersey and the AlbanySchenectady-Troy, Buffalo-Niagara Falls, Essex County,Jefferson County, and Poughkeepsie areas in New York. For the eight-hour standard, the areas
are: Buffalo-Niagara Falls,Jamestown, Poughkeepsie and Essex County (Whiteface Mountain). The States requested these determinations, based upon three years ofcomplete, qualityassured ambient air monitoring data and these areas have continued to attain these ozone standards based on examination ofthe mostrecent air quality data from 2006-2008. These data demonstrate thatthe one-hour and eight-hour ozone standards have been attained in these areas. IfEPA makes these proposed determinations final for the one-hour standard, the areas subject to the one-hour standard will have completed their progress toward achieving the one-hour health standard. In the cases where EPA determines that

areas have attained the eight-hour standard, the requirements forthe state to submit certain reasonable further progress plans, attainment demonstrations, contingency measures and any other planning requirements of the Clean Air Act related to attainment ofthe ozone standards shall be suspended for as long as the areas continue to attain the eight-hour ozone standard. These proposed determinations ofattainment are not redesignations ofthese areas to attainment. Redesignations must meet additional requirements, including an approved plan tomaintain compliance with the air quality standard for ten years after redesignation. DATES: Comments mustbe received on
or before October 23, 2009. Public
comments on this action are requested and will be considered before taking final action. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R02- OAR-2008-0638, by one ofthe following methods:

* http://www.regulations.gov: Follow the on-line instructions for submitting
comments.

* E-mail:Werner.Raymond@epa.gov.
" Fax:212-637-3901. * Mail:Raymond Werner, Chief,Air Programs Branch, Environmental Protection Agency, Region 2Office, 290 Broadway, 25th Floor, New York, New York 10007-1866.

* HandDelivery:Raymond Werner, Chief,Air Programs Branch, Environmental Protection Agency, Region 2Office, 290 Broadway, 25th Floor, New York, New York 10007- 1866. Such deliveries are only accepted during the Regional Office's normal hours ofoperation. The Regional Office's official hours ofbusiness are Monday through Friday, 8:30 to 4:30 excluding Federal holidays.

Instructions: Direct your comments to Docket ID No. EPA-R02-OAR-2009- 0638. EPA's policy is that all comments received willbe included in the public docket without change and may be made available online athttp:// www.regulations.gov,including any personal information provided, unless the comment includes information claimed tobe Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information thatyou consider to be CBIor otherwise protected throughhttp:// www.regulations.govor e-mail. The http://www.regulations.gov Web site is

an "anonymous access" system, which

means EPA will not know youridentity

or contact information unless you provide itin the body ofyour comment. Ifyou 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 ofthe comment that isplaced in the public docket and made available on the Internet. Ifyou submit an electronic comment, EPA recommends thatyou include your
name and other contact information in thebody ofyour comment andwith any disk orCD-ROM you submit. IfEPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may notbe able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, andbe free of any defects or viruses. For additional information about EPA's public docketvisit the EPA Docket Center homepage at http:// www.epa.gov/epahome/dockets.htm.

FOR FURTHER INFORMATION CONTACT: Robert F. Kelly, Air Programs Branch, Environmental Protection Agency, Region 2, 290 Broadway, 25th Floor, New York, New York 10007-1866, (212)
637-4249.
SUPPLEMENTARY INFORMATION:

Table ofContents

I. What Are Today's Proposed Actions? 11.What Is the Background for These Actions? A. When Were These Areas Designated? B. How DoesEPA Compute Whether an Area Complies With the One-hour Ozone Standard? C. How Does EPA Compute Whether an Area Complies With the Eight-hour Ozone Standard? D. Why IsEPA Determining ifThese Areas Are Attaining The Ozone Standards? E.What Are the Likely Effects ofThese Determinations ofAttainment? F. How Are These Determinations of Attainment Different From a Redesignation to Attainment? I1. Did These Areas Attain Their Respective Ozone Standards? IV. What is EPA Proposing? V. Statutory and Executive Order Reviews 

### 48498