2936 Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 50 and 51 

[EPA–HQ–OAR–2007–0956, FRL–8762–5] 

RIN 2060–AO96 

Proposed Rule To Implement the 1997 

8-Hour Ozone National Ambient Air 

Quality Standard: Revision on Subpart 

1 Area Reclassification and AntiBacksliding Provisions Under Former 

1-Hour Ozone Standard; Proposed 

Deletion of Obsolete 1-Hour Ozone 

Standard Provision 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The EPA proposes to revise 

the rule for implementing the 1997 8- 

hour ozone national ambient air quality 

standard (NAAQS) for several of the 

limited portions of the rule vacated by 

the U.S. Circuit Court of Appeals for the 

District of Columbia. The proposal 

addresses the classification system for 

the subset of initial 8-hour ozone 

nonattainment areas that the 

implementation rule originally covered 

under Clean Air Act (CAA or Act) title 

I, part D, subpart 1. The proposal also 

addresses how 1-hour ozone 

contingency measures that apply for 

failure to attain or make reasonable 

progress toward attainment of the 1- 

hour standard should apply under the 

anti-backsliding provisions of the 

implementation rule. In addition, the 

proposal removes language relating to 

the vacated provisions of the rule that 

provided exemptions from the 

requirements of nonattainment new 

source review (NSR) and CAA section 

185 penalty fees under the 1-hour 

standard. The EPA plans to issue a 

separate proposed rule providing 

additional guidance as to how these two 

requirements (185 fees and NSR) now 

apply. 

In addition, this proposal includes the 

deletion of an obsolete provision in the 

1-hour ozone standard itself. 

DATES: Comments. Comments must be 

received on or before February 17, 2009. 

Public Hearing. If anyone contacts us 

requesting a public hearing by January 

26, 2009, we will hold a public hearing 

approximately 30 days after publication 

in the Federal Register. Additional 

information about the hearing would be 

published in a subsequent Federal 

Register notice. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2007–0956, by one of the 

following methods: 

• www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

• E-mail: 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–2007–0956, 

Environmental Protection Agency, 1301 

Constitution Ave., NW., Washington, 

DC 20460. Mail Code: 2822T. Please 

include two copies if possible. 

• Hand Delivery: Air and Radiation 

Docket and Information Center, 

Attention Docket ID No. EPA–HQ– 

OAR–2007–0956, Environmental 

Protection Agency in the EPA 

Headquarters Library, Room Number 

3334 in the EPA West Building, located 

at 1301 Constitution Ave., NW., 

Washington, DC. The EPA/DC Public 

Reading Room hours of operation will 

be 8:30 a.m. to 4:30 p.m. Eastern 

Standard Time (EST), Monday through 

Friday, Air and Radiation Docket and 

Information Center. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–OAR–2007– 

0956. The EPA’s policy is that all 

comments received will be included in 

the public docket without change and 

may be made available on-line at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be confidential business 

information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through www.regulations.gov, 

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

site is an ‘‘anonymous access’’ system, 

which means EPA will not know your 

identity or contact information unless 

you provide it in the body of your 

comment. If you send an e-mail 

comment directly to EPA without going 

through www.regulations.gov, your email address will be automatically 

captured and included as part of the 

comment that is placed in the public 

docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. For additional information 

about EPA’s public docket, visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

For additional instructions on 

submitting comments, go to the 

SUPPLEMENTARY INFORMATION section of 

this document. 

Docket: All documents in the docket 

are listed in www.regulations.gov. 

Although listed in the index, some 

information is not publicly available, 

i.e., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically in 

www.regulations.gov or in hard copy at 

the Air and Radiation Docket and 

Information Center in the EPA 

Headquarters Library, Room Number 

3334 in the EPA West Building, located 

at 1301 Constitution Ave., NW., 

Washington, DC. The Public Reading 

Room is open from 8:30 a.m. to 4:30 

p.m., Monday through Friday, excluding 

legal holidays. The telephone number 

for the Public Reading Room is (202) 

566–1744. 

Public Hearing: If a hearing is held, it 

will be held at the U.S. Environmental 

Protection Agency, 109 TW Alexander 

Drive, Research Triangle Park, North 

Carolina 27709, Building C. 

FOR FURTHER INFORMATION CONTACT: For 

further general information or 

information on the issue of 

reclassification of subpart 1 areas, 

contact Mr. John Silvasi, Office of Air 

Quality Planning and Standards, U.S. 

Environmental Protection Agency, 

(C539–01), Research Triangle Park, NC 

27711, phone number (919) 541–5666, 

fax number (919) 541–0824 or by e-mail 

at silvasi.john@epa.gov. For information 

on the 1-hour contingency measures 

issue discussed in this notice, contact 

Ms. Denise Gerth, Office of Air Quality 

Planning and Standards, (C504–03), 

U.S. EPA, Research Triangle Park, North 

Carolina 27711, phone number (919) 

541–5550 or by e-mail at 

gerth.denise@epa.gov, fax number (919) 

541–0824. To request a public hearing, 

contact Mrs. Pamela Long, Office of Air 

Quality Planning and Standards, (C504– 

03), U.S. EPA, Research Triangle Park, 

North Carolina 27711, telephone 

number (919) 541–0641 or by e-mail at 

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 the subject rule for this action 

include state, local, and Tribal 

governments. Entities potentially 


hsrobinson on PROD1PC76 with PROPOSALS
Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Proposed Rules 2937 

affected indirectly by this action include 

owners and operators of sources of 

emissions (volatile organic compounds 

(VOCs) and nitrogen oxides (NOX)) that 

contribute to ground-level ozone 

concentrations. 

B. What Should I Consider as I Prepare 

My Comments for EPA? 

1. Submitting CBI. Do not submit this 

information to EPA through 

www.regulations.gov or e-mail. Clearly 

mark the part or all of the information 

that you claim to be CBI. For CBI 

information on a disk or CD–ROM that 

you mail to EPA, mark the outside of the 

disk or CD–ROM as CBI and then 

identify electronically within the disk or 

CD–ROM the specific information that 

is claimed as CBI. In addition to one 

complete version of the comment that 

includes information claimed as CBI, a 

copy of the comment that does not 

contain the information claimed to be 

CBI must be submitted for inclusion in 

the public docket. Information so 

marked will not be disclosed except in 

accordance with procedures set forth in 

40 CFR part 2. 

2. Tips for Preparing Your Comments. 

When submitting comments, remember 

to: 

• Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

• Follow directions—The agency may 

ask you to respond to specific questions 

or organize comments by referencing a 

Code of Federal Regulations (CFR) part 

or section number. 

• Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

• Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

• If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

• Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

• Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

• Make sure to submit your 

comments by the comment period 

deadline identified. 

C. Where Can I Get a Copy of This 

Document and Other Related 

Information? 

In addition to being available in the 

docket, an electronic copy of this notice 

is also available on the World Wide 

Web. A copy of this notice will be 

posted at http://www.epa.gov/ttn/naaqs/ 

ozone/o3imp8hr/. 

D. What Information Should I Know 

About the Public Hearing? 

EPA will hold a hearing only if a 

party notifies EPA by January 26, 2009, 

expressing its interest in presenting oral 

testimony on issues addressed in this 

notice. Any person may request a 

hearing by calling Mrs. Pamela Long at 

(919) 541–0641 before 5 p.m. by January 

26, 2009. Persons interested in 

presenting oral testimony should 

contact Mrs. Pamela Long at (919) 541– 

0641. Any person who plans to attend 

the hearing should also contact Mrs. 

Pamela S. Long at (919) 541–0641 or 

visit the EPA’s Web site at http:// 

www.epa.gov/ttn/naaqs/ozone/ 

o3imp8hr/ and to learn if a hearing will 

be held. 

If a public hearing is held on this 

notice, it will be held at the EPA, 

Building C, 109 T.W. Alexander Drive, 

Research Triangle Park, NC 27709. 

Because the hearing will be held at a 

U.S. Government facility, everyone 

planning to attend should be prepared 

to show valid picture identification to 

the security staff in order to gain access 

to the meeting room. Please check our 

Web site at http://www.epa.gov/ttn/ 

naaqs/ozone/o3imp8hr/ for information 

and updates concerning the public 

hearing. 

If held, the public hearing will begin 

at 10 a.m. and end 1 hour after the last 

registered speaker has spoken. The 

hearing will be limited to the subject 

matter of this document. Oral testimony 

will be limited to 5 minutes. The EPA 

encourages commenters to provide 

written versions of their oral testimony 

either electronically (on computer disk 

or CD–ROM) or in paper copy. The list 

of speakers will be posted on EPA’s Web 

site at http://www.epa.gov/ttn/naaqs/ 

ozone/o3imp8hr/. Verbatim transcripts 

and written statements will be included 

in the rulemaking docket. 

A public hearing would provide 

interested parties the opportunity to 

present data, views, or arguments 

concerning issues addressed in this 

notice. The EPA may ask clarifying 

questions during the oral presentations, 

but would not respond to the 

presentations or comments at that time. 

Written statements and supporting 

information submitted during the 

comment period will be considered 

with the same weight as any oral 

comments and supporting information 

presented at a public hearing. 

E. How Is This Document Organized? 

The Information Presented in This 

Document is Organized as Follows 

I. General Information 

A. Does This Action Apply to Me? 

B. What Should I Consider as I Prepare My 

Comments for EPA? 

C. Where Can I Get a Copy of This 

Document and Other Related 

Information? 

D. What Information Should I Know About 

the Public Hearing? 

E. How Is This Document Organized? 

II. What Is the Background for This Proposal? 

A. Litigation on EPA’s 8-Hour Ozone 

NAAQS Implementation Rule (40 CFR 

Part 51, Sections 51.900 Through 51.918 

(Collectively Subpart X)) 

B. Obsolete Provision in 1-Hour Ozone 

Standard (40 CFR Part 50) 

III. This Action 

A. Reclassification of Subpart 1 8-Hour 

Ozone Nonattainment Areas 

1. Current Rule 

2. Effect of Court Ruling 

3. Proposed Rule 

4. Consequences of Proposed Rule 

B. Anti-Backsliding Under 1-Hour Ozone 

Standard—In General (Also Discussing 

NSR and Section 185 Penalty Fees) 

C. Contingency Measures 

1. Phase 1 Rule 

2. Effect of Court Ruling 

3. Proposed Rule 

D. Deletion of Obsolete 1-Hour Ozone 

Standard Provision 

IV. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132—Federalism 

F. Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Determination Under Section 307(d) 

Appendix A to Preamble. Application of 

the Proposed Classification Scheme 

II. What Is the Background for This 

Proposal? 

A. Litigation on EPA’s 8-Hour Ozone 

NAAQS Implementation Rule (40 CFR 

Part 51, Sections 51.900 Through 51.918 

(Collectively Subpart X)) 

On April 30, 2004 (69 FR 23951), EPA 

published Phase 1 of a final rule that 

addressed the following key elements 

for implementing the 1997 8-hour ozone 

NAAQS: Classifications for the 1997 8- 

hour NAAQS; revocation of the 1-hour 

NAAQS (i.e., when the 1-hour NAAQS 

will no longer apply); anti-backsliding 

principles for 1-hour ozone 


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2938 Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Proposed Rules 

1Three petitions for reconsideration of the Phase 

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

the American Lung Association, Environmental 

Defense, Natural Resources Defense Council, Sierra 

Club, Clean Air Task Force, Conservation Law 

Foundation, and Southern Alliance for Clean 

Energy; (2) the National Petrochemical and Refiners 

Association and the National Association of 

Manufacturers; and (3) the American Petroleum 

Institute, American Chemistry Council, American 

Iron and Steel Institute, National Association of 

Manufacturers and the U.S. Chamber of Commerce. 

2 70 FR 30592 (May 26, 2005). 

3The Court’s June clarification confirmed that the 

December 2006 decision was not intended to 

establish a requirement that areas continue to 

demonstrate conformity for the 1-hour ozone 

standard for anti-backsliding purposes. 

4 In addition, in June 2003, we stayed our 

authority to apply the revocation rule pending our 

reconsideration in this rulemaking of the basis for 

revocation. (68 FR 38160, June 26, 2003). 

5 13 of the 84 subpart 1 areas and one subpart 2 

area were designated as ‘‘Early Action Compact 

Areas’’ with a deferred effective date for their 

nonattainment designation. 

requirements to ensure continued 

progress toward attainment of the 1997 

8-hour ozone NAAQS; attainment dates; 

and the timing of emissions reductions 

needed for attainment. 

Following publication of the April 30, 

2004 final Phase 1 Rule, the 

Administrator received three petitions, 

pursuant to section 307(b)(7)(B) of the 

CAA requesting reconsideration of a 

number of aspects of the final rule.1 In 

final rulemaking on one of these 

petitions, EPA further clarified the 

implementation rule in two respects: (a) 

Section 185 penalty fees under the 1- 

hour standard would no longer be 

applicable after revocation of the 1-hour 

standard, and (b) the effective date of 

designations under the 1997 8-hour 

standard (i.e., for almost all areas, June 

15, 2004) is the date for determining 

which 1-hour control measures continue 

to apply in an area once the 1-hour 

standard is revoked.2 Additionally, EPA 

clarified that the requirement to have 1- 

hour contingency measures for failure to 

make progress or failure to attain would 

no longer apply once the 1-hour 

standard was revoked. On April 4, 2005 

(70 FR 17018), we published a proposed 

rule to take comment on the issue of 

whether we should interpret the Act to 

require areas to retain major NSR 

requirements that apply to certain 1- 

hour ozone nonattainment areas in 

implementing the 1997 8-hour standard. 

We took final action on the NSR issues 

on June 30, 2005 (70 FR 39413; July 8, 

2005), to interpret the CAA to not 

require NSR under the 1-hour standard 

once the 1-hour standard was revoked. 

Several parties challenged EPA’s 

Phase 1 Rule and the two 

reconsideration rules, and on December 

22, 2006, the Court upheld certain 

challenges and rejected others, but 

purported to vacate the Phase 1 

Implementation Rule in its entirety. 

South Coast Air Quality Management 

District, et al., v. EPA, 472 F.3d 882 

(D.C. Cir. 2006) reh’g denied 489 F.3d 

1245 (clarifying that the vacatur was 

limited to the issues on which the court 

granted the petitions for review). 

The EPA requested rehearing and 

clarification of the ruling and on June 8, 

2007, the Court clarified that it was 

vacating the rule only to the extent that 

it had upheld petitioners’ challenges. 

Thus, the following provisions of the 

Phase 1 rule were vacated: 

• The provisions that placed 8-hour 

ozone nonattainment areas under 

subpart 1, part D, title I of the CAA 

instead of subpart 2. 

• The provisions that waived 

obligations under the revoked 1-hour 

standard for NSR, section 185 penalty 

fees, and contingency measures for 

failure to attain or to make reasonable 

progress toward attainment of the 

1-hour standard.3

B. Obsolete Provision in 1-Hour Ozone 

Standard (40 CFR Part 50) 

When EPA promulgated the 8-hour 

ozone standard on July 18, 1997 (62 FR 

38856), EPA initially revised 40 CFR 

50.9 to revoke the 1-hour ozone 

standard once EPA determined that an 

area had air quality meeting the 1-hour 

standard. Subsequently, because the 

pending litigation over the 8-hour 

NAAQS created uncertainty regarding 

the 8-hour NAAQS and our 

implementation strategy, we revised 40 

CFR 50.9 to place two limitations on our 

authority to apply the revocation rule: 

(1) The 8-hour NAAQS must no longer 

be subject to legal challenge, and (2) it 

must be fully enforceable.4 (65 FR 

45182, July 20, 2000). These limitations 

were codified as § 50.9(c). In the final 

Phase 1 Rule, we again revised § 50.9, 

this time to revise § 50.9(b) to provide 

for revocation of the 1-hour standard 

one year after designation of areas under 

the 1997 8-hour ozone standard. 

However, we neglected to remove 

paragraph (c) which was no longer 

necessary as the 8-hour standard was no 

longer subject to legal challenge and the 

standard had been upheld and was 

enforceable. American Trucking Assoc. 

v. EPA 283 F.3d 355 (DC Cir. 2002) 

(resolving all remaining legal challenges 

to the 8-hour ozone standard and 

upholding EPA’s rule establishing that 

standard.) 

III. This Action 

A. Reclassification of Subpart 1 8-Hour 

Ozone Nonattainment Areas 

1. Current Rule 

In the Phase 1 implementation rule, 

EPA established which planning 

requirements of part D of title I of the 

Act would apply to areas for purposes 

of implementing the 8-hour ozone 

standard. 40 CFR 51.902. (‘‘Which 

classification and nonattainment area 

planning provisions of the CAA shall 

apply to areas designated nonattainment 

for the 8-hour NAAQS?’’) Paragraph (a) 

provided that areas with a 1-hour ozone 

design value equal to or greater than 

0.121 parts per million (ppm) at the 

time of 8-hour NAAQS nonattainment 

designation (April 2004) would be 

classified in accordance with CAA title 

I, part D, section 181 of the CAA as 

interpreted in 40 CFR 51.903(a) for 

purposes of the 8-hour NAAQS, and 

would be subject to the requirements of 

CAA title I, part D, subpart 2 that apply 

for the area’s classification. 40 CFR 

51.903(a) set forth a translation into 8- 

hour design values of the CAA section 

181 classification table, which is written 

in terms of 1-hour ozone design values. 

The preamble to the Phase 1 Rule 

provides the rationale and procedure for 

that translation. (See 69 FR 23958 et 

seq.) Section 181 in subpart 2 provides 

for specific classifications of each area 

by the magnitude of the ozone problem, 

providing shorter time periods for 

attainment for lower classifications and 

longer time periods for higher 

classifications. Higher classified areas 

also face additional specified control 

requirements than lower classified 

areas. A summary listing of the subpart 

2 requirements by classification 

compared to subpart 1 requirements 

appeared in the proposed 8-hour ozone 

implementation rule. (See 68 FR 32864, 

Appendix A; June 2, 2003.) 

Paragraph (b) of § 51.902 provided 

that 1997 8-hour ozone nonattainment 

areas with a 1-hour design value less 

than 0.121 ppm at the time of 8-hour 

NAAQS nonattainment designation 

would be covered under section 

172(a)(1) of the CAA and would be 

subject to the requirements of CAA title 

I, part D, subpart 1 and not those of 

subpart 2. 

The EPA designated areas for the 1997 

8-hour standard on April 30, 2004 (69 

FR 23858), and in accordance with 

section 181(a), the areas subject to 

subpart 2 under the Phase 1 Rule were 

classified by operation of law at that 

time. Of the 126 areas designated 

nonattainment, 84 were classified as 

under subpart 1, and the remaining 42 

as under subpart 2.5


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Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Proposed Rules 2939 

6 ‘‘* * * the gap identified in Whitman affords 

EPA discretion only to the extent that an area is 

nonattaining but its air quality is not as dangerous 

as the level addressed by the 1990 Amendments, 

which now translates to 0.09 ppm on the 8 hour 

scale. Thus, the gap extends only to the extent that 

the standard was strengthened and not to the extent 

that the measurement technique merely changed 

* * * We therefore hold that the 2004 Rule violates 

the Act insofar as it subjects areas with 8-hour 

ozone in excess of 0.09 ppm to Subpart 1. We 

further hold that EPA’s interpretation of the Act in 

a manner to maximize its own discretion is 

unreasonable because the clear intent of Congress 

in enacting the 1990 Amendments was to the 

contrary.’’ 

7We note that areas subject to subpart 2 are also 

subject to subpart 1 to the extent subpart 1 specifies 

requirements that are not superseded by more 

specific obligations under subpart 2. 

8As the court made clear in its decision on 

rehearing, the CAA does not mandate coverage 

under subpart 2 of all areas designated 

nonattainment for an ozone NAAQS. As EPA moves 

forward to develop an implementation strategy for 

the new 2007 ozone NAAQS, we will consider 

whether subpart 1 alone might apply in some areas 

for purposes of implementing that NAAQS. 

9Note, however, that if a State requests a 

reclassification from moderate to marginal and the 

attainment date for marginal areas has passed and 

the area is violating the standard, EPA would not 

grant the request for the reclassification. 

10One area (Denver, CO) that was originally part 

of the EAC program did not successfully complete 

all milestones and was subsequently designated 

nonattainment under subpart 1. Thus, this area 

would be treated the same as all areas classified 

under subpart 1 under the original provisions of the 

Phase 1 Rule. 

11See, e.g., 73 FR 11558 (col. 2) (March 4, 2008), 

together with e.g., 73 FR 1166 (col 3) (January 8, 

2008). 

12Note that Essex Co (the top of Whiteface Mtn), 

NY, and Door County, WI would be eligible for 

consideration under CAA section 182(h) as a Rural 

Transport Area. This is based on the 1999 definition 

of Metropolitan Statistical Areas; neither of the 

above two areas is in or adjacent to an MSA as 

defined by the Office of Management and Budget 

(OMB) in 1999 (June 30, 1999; 64 FR 35548). 

2. Effect of Court Ruling 

In its decisions on the Phase 1 rule, 

the Court vacated the provisions that 

subjected any 8-hour ozone 

nonattainment areas to coverage under 

subpart 1. As the basis for its decision, 

the Court first agreed that Congress 

mandated that certain areas be subject to 

subpart 2, but ruled that our use of 

0.121 ppm 1-hour design value as a 

dividing line was incorrect, holding that 

the Supreme Court had required use of 

0.09 ppm on the 8-hour scale as the 

level for determining which areas 

Congress mandated would be subject to 

subpart 2.6 Furthermore, although 

recognizing that Congress did not 

mandate that areas with an 8-hour 

design value be subject to subpart 2, the 

Court rejected as unreasonable our 

rationale for placing certain areas in 

subpart 1 instead of subpart 2. The 

Court vacated the Phase 1 rule to the 

extent it placed certain areas solely 

under the implementation provisions of 

subpart 1. Thus, a rule revision is 

necessary to address which provisions 

of the Act—only subpart 1 or subpart 

2 7—should apply to those areas that 

were placed solely under subpart 1 in 

the Phase 1 Rule. 

3. Proposed Rule 

We are proposing that all areas 

designated nonattainment for the 1997 

8-hour ozone standard will be classified 

under and subject to the nonattainment 

planning requirements of subpart 2. We 

would modify the regulatory text to 

remove current § 51.902(b) (which was 

vacated by the Court), which placed 

certain areas only under subpart 1. We 

considered the possibility of proposing 

to place areas with design values below 

0.09 ppm 8-hour design value under 

subpart 1, but are not proposing this 

option in the interest of not further 

delaying implementation of the 8-hour 

ozone NAAQS that was established over 

10 years ago.8 However, we solicit 

comment on this part of this proposal. 

Because these are the initial 

classifications for these areas for the 

1997 ozone standard, the EPA further 

proposes to use the 8-hour ozone design 

values (from 2001–2003 air quality data) 

that were used to designate these areas 

nonattainment initially as the basis for 

classification and that the classification 

table in 40 CFR 51.903 (established by 

the Phase 1 Rule) be used for the 

classification. CAA section 181(a) 

provides that ‘‘at the time’’ areas are 

designated for a NAAQS, they will be 

classified ‘‘by operation of law’’ based 

on the ‘‘design value’’ of the areas and 

in accordance with table 1 of that 

section. Thus, this language specifies 

that the area will be classified based on 

the design value that existed for the area 

‘‘at the time’’ of designation. Areas were 

designated nonattainment in 2004, 

based on design values derived from 

data from 2001–2003. We are soliciting 

comment on the approach of classifying 

these areas based on the same data that 

was used for designation. 

Also, since the classification under 

this proposal would be the initial one 

under the 1997 8-hour standard for 

these areas after court vacatur of the 

method EPA used to treat these areas 

under subpart 1 only, EPA proposes that 

the provision of CAA section 181(a)(4) 

would apply to these areas, which 

would allow the Administrator in his 

discretion to adjust the classification— 

within 90 days after the initial 

classification—to a higher or lower 

classification ‘‘* * * if the design value 

were 5 percent greater or 5 percent less 

than the level on which such 

classification was based.’’ The EPA 

proposes to address requests for such 

classification adjustments for the newlyclassified areas that were originally 

covered under subpart 1 in a manner 

similar to the way described for the 

original round of subpart 2 

classifications.9 This process is 

described at 69 FR 23863 et seq. (April 

30, 2004). 

Of the original 84 subpart 1 areas 

designated in the April 30, 2004 

rulemaking, 13 areas successfully 

completed participation in the Early 

Action Compacts (EAC) program. As a 

result, these areas received deferred 

designations and classifications for as 

long as they continued to meet program 

requirements. These requirements were 

designed to ensure early reductions of 

ozone and progress toward attainment 

of the 1997 NAAQS. At the completion 

of the program, these areas were 

designated attainment for the 8-hour 

ozone NAAQS effective April 15, 

2008.10

Despite the proposal to implement the 

1997 8-hour standard by classifying 

nonattainment areas under title I, part 

D, subpart 2 at this time, EPA reserves 

the right to propose to cover future 

ozone nonattainment areas under title I, 

part D, subpart 1, in accordance with 

the constraints outlined in the Court’s 

rulings. The EPA may in the future 

examine the appropriate role for subpart 

1 in classifying nonattainment areas and 

in flexible, efficient, enforceable 

implementation of an ozone NAAQS. 

Note that CAA section 182(h) (‘‘Rural 

Transport Areas’’) would be available 

for any nonattainment area that qualifies 

as a rural transport area under that 

section. A Rural Transport Area would 

have to only meet requirements of a 

marginal area. 

4. Consequences of Proposed Rule 

Areas originally covered under 

subpart 1 that have already been 

redesignated to attainment will not be 

affected by this rule, including the 13 

EAC areas noted above.11 Appendix A 

provides a listing of the former subpart 

1 areas that are still designated 

nonattainment and that would be 

classified under subpart 2 under this 

proposed rule and provides the subpart 

2 classification for the area based on the 

air quality data initially used to 

designate the area in the 2004 

designation rule. All of these areas 

would be classified as either marginal or 

moderate.12 The classification table of 

40 CFR 51.903 provides an outside 

attainment date based on a number of 

years after the effective date of the 


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nonattainment designation (3 years for 

marginal and 6 years for moderate). For 

all areas other than Denver, the effective 

date of designation for the 8-hour 

standard was June 15, 2004. Thus, 

marginal nonattainment areas would 

have a maximum statutory attainment 

date of June 15, 2007 and moderate 

areas a maximum date of June 15, 2010. 

Since the marginal area attainment date 

has passed, EPA proposes that any area 

that would be classified under the 

proposal as marginal, and that did not 

attain by June 15, 2007, or that does not 

meet the criteria for an attainment date 

extension under CAA section 

181(a)(5)(B) and 40 CFR 51.907, would 

be reclassified immediately as moderate 

under this rule. 

Areas classified marginal or moderate 

would be required to meet the marginal 

or moderate area requirements of CAA 

section 182(a) and/or (b). Moderate area 

requirements include the requirements 

for the marginal classification. Briefly, 

these requirements are depicted in 

Table 1: 

TABLE 1 

Element 

Subpart 2 a

Classification Requirement 

Attainment Dates ..............................................................

For all areas, attainment should occur as expeditiously 

as practicable, but no later than specified timeframe.

Marginal .............................. 3 years from CAA Amendments enactment. 

Moderate ............................ 6 years from CAA Amendments enactment. 

Reasonable Further Progress (RFP) ................................ Marginal .............................. None. 

Moderate ............................ 15% VOC reduction from baseline within 6 years of enactment. 

Attainment demonstration submission .............................. Marginal .............................. None. 

Moderate ............................ Due 3 years after CAA Amendments enactment. 

NSR and Reasonable Achievable Technology (RACT) 

major source applicability.

Marginal .............................. 100 tons per year (TPY). 

Moderate ............................ 100 TPY. 

NSR offsets ....................................................................... Marginal .............................. 1.1 to 1. 

Moderate ............................ 1.15 to 1. 

Bump-up to higher classification ...................................... All except severe & extreme.Required to bump up to higher classification if area 

doesn’t meet attainment date. 

NOX control for RACT ...................................................... Moderate & above; all 

areas in Ozone Transport 

Commission.

Requirements under this subpart for major stationary 

VOC sources (NSR & RACT) also apply to all major 

NOX sources, unless EPA approves NOX waiver. 

Emission inventory ............................................................ All ....................................... Comprehensive emissions inventory within 2 years of 

enactment; update every 3 years (until area attains). 

Provision for submission to state of annual emissions 

statements from VOC and NOX stationary sources. 

RACT ................................................................................ Marginal & above ............... Pre-1990 RACT fix-up. 

Moderate & above .............. RACT for all Control Techniques Guidelines sources 

and all other major sources. 

Inspection and Maintenance (I/M) .................................... Marginal .............................. Pre-1990 corrections to previously required I&M programs. 

Moderate ............................ Basic I/M. 

Consequences of failure to attain ..................................... Marginal, moderate ............ Bump-up for failure to attain. 

Contingency measures ..................................................... All ....................................... Required for failure to meet the Rate of Progress milestones or attain. 

a Note that subpart 1 requirements also apply to subpart 2 areas to the extent that the CAA does not provide an exemption (e.g., 182(a) (last 

paragraph, which exempts marginal areas from the requirement to submit an attainment demonstration)) or such requirements are not superseded by more specific obligations under subpart 2 (e.g., where subpart 2 specifies specific increments of progress for moderate and above 

areas in place of the more general requirement for ‘‘reasonable further progress’’ under subpart 1). Subpart 1 requirements that are also applicable to subpart 2 areas (but that are not addressed in subpart 2) include reasonably available control measures (RACM) requirement and transportation and general conformity requirements. 

With respect to transportation 

conformity requirements, current 

transportation plan and transportation 

improvement program conformity 

determinations for the 1997 8-hour 

ozone standard will remain valid, and 

are not impacted by this action. Areas 

that would be reclassified under subpart 

2 are already satisfying the applicable 

CAA section 176(c) conformity 

requirements for the 1997 8-hour ozone 

standard. In addition, no new 

conformity deadline would be triggered 

in the subject areas after their 

classification under subpart 2. 

Nonattainment areas that are classified 

as marginal or moderate under Subpart 

2 would continue to make future 

conformity determinations according to 

the applicable requirements of 40 CFR 

93.109(d) and (e). EPA notes that any 

new moderate areas that continue to be 

required to use the interim emissions 

tests will be required to meet additional 

test requirements that do not apply to 

marginal areas (40 CFR 93.119(b)(1)). 

The Phase 1 Rule provided that states 

must submit the major SIP elements for 

the subpart 1 areas no later than June 

15, 2007. For areas classified as 

moderate, EPA also provided a 

submission date of June 15, 2007 for 

most requirements, but required states 

to submit the reasonably available 

control technology requirement (RACT) 

SIP by September 15, 2006. The EPA 

proposes to require states to submit all 

required SIP elements for the areas’ 

marginal or moderate classification one 

year after the effective date of a final 

rule classifying the areas. The EPA 

believes this is an appropriate and 

reasonable amount of time given the 

attainment dates that will apply to these 

areas and the fact that the areas should 

have made significant progress toward 

meeting these requirements based on 

the obligations that applied before the 


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13Memorandum of March 19, 2007 from William 

L. Wehrum to EPA Regional Administrators, re: 

‘‘Impacts of the Court Decision on the Phase 1 

Ozone Implementation Rule’’ (response to Question 

2) and memorandum of June 15, 2007 from Robert 

J. Meyers to Regional Administrators re: ‘‘Decision 

of the U.S. Court of Appeals for the District of 

Columbia Circuit on our Petition for Rehearing of 

the Phase 1 Rule to Implement the 8-Hour Ozone 

NAAQS’’ (Implications for Subpart 1 Areas). 

14Note that if the area is nonattainment for the 

1997 8-hour standard, it is subject to nonattainment 

NSR, contingency measures and (if severe or 

extreme) the section 185 penalty fee provision for 

that 1997 NAAQS. 

15As noted above in a previous footnote, the 

Court’s June 2007 clarification confirms that the 

December 2006 decision was not intended to 

establish a requirement that areas continue to 

demonstrate conformity under the 1-hour ozone 

standard for anti-backsliding purposes. Therefore, 

no revisions are necessary to 40 CFR 51.905(e)(3) 

of the Phase 1 implementation rule. Section 40 CFR 

51.905(e)(3) establishes that conformity 

determinations for the 1-hour standard are not 

required beginning 1 year after the effective date of 

the revocation of the 1-hour standard and any state 

conformity provisions in an applicable SIP that 

require 1-hour ozone conformity determinations are 

no longer federally enforceable. This provision does 

not require revision in light of the Court’s decision 

and clarification, because the Court did not require 

conformity determinations for the 1-hour standard, 

and existing regulations already implement the 

Court’s holding that 8-hour ozone nonattainment 

and maintenance areas must use 1-hour ozone 

budgets to determine conformity to the 1997 8-hour 

standard until such time as 8-hour ozone budgets 

are approved or found adequate for the area. 

Therefore, current transportation conformity-related 

regulations set forth in 40 CFR part 93 and 40 CFR 

51.905(e)(3), and the general conformity regulations 

in 40 CFR part 93 are consistent with the Court’s 

decision and clarification on the Phase 1 8-hour 

ozone implementation rule and do not require 

revision. 

subpart 1 classification provision of the 

Phase 1 rule was vacated. As subpart 1 

areas, these areas should have been well 

along the path to developing SIPs at the 

time the Court issued its decision in 

December 2006. We believe states have 

already had ample opportunity to 

complete the technical work to support 

development of these major SIP 

elements prior to now. Also, EPA has 

encouraged states to continue planning 

for clean air in the prior subpart 1 

areas.13 Therefore, EPA believes one 

year from the date of final rule should 

be sufficient time for states to submit 

these SIPs. However, EPA solicits 

comment on this aspect of the proposal. 

B. Anti-Backsliding Under 1-Hour 

Ozone Standard—In General (Also 

Discussing NSR and Section 185 Penalty 

Fees) 

The EPA codified the anti-backsliding 

provisions governing the transition from 

the revoked 1-hour ozone NAAQS to the 

1997 8-hour ozone NAAQS in 40 CFR 

51.905(a). These provisions, as 

promulgated, retained most of the 1- 

hour ozone requirements as ‘‘applicable 

requirements’’ (defined in 40 CFR 

51.900(f)). The requirements that are 

retained are those that applied in an 

area based on the area’s 1-hour ozone 

designation and classification as of the 

effective date of its 8-hour designation 

(for most areas, June 15, 2004). 

Section 51.905(b) provides that a state 

remains subject to the listed 1-hour 

standard obligations until the area 

attains the 8-hour NAAQS. 

Furthermore, § 51.905(b) provides that 

such obligations cannot be removed 

from a SIP, even if the area is 

redesignated to attainment for the 8- 

hour NAAQS, but must remain in the 

SIP as applicable requirements or as 

contingency measures, as appropriate. 

Section 51.905(e), as promulgated in 

2004, indicated that certain 1-hour 

standard requirements are not part of 

the list of anti-backsliding requirements. 

These include 1-hour NSR, section 185 

penalty fees, and 1-hour contingency 

measures for failure to attain or make 

reasonable progress toward attainment 

of the 1-hour NAAQS.14 The Court 

vacated these exemption provisions, 

and accordingly EPA is proposing to 

delete these exemptions from the rule. 

Thus, this proposal would remove 

language relating to the vacated 

provisions of the rule that provided 

exemptions from the requirements of 

nonattainment NSR and CAA section 

185 penalty fees under the 1-hour 

standard in addition to the provision for 

contingency measures. The EPA plans 

to issue a separate proposed rule 

providing further guidance on how the 

section 185 fee provisions and the 1- 

hour NSR requirements apply as a result 

of the Court’s vacatur.15

In the following section, in response 

to the Court vacatur, EPA proposes the 

manner in which the 1-hour NAAQS 

contingency measure requirement 

applies as an anti-backsliding 

requirement. 

C. Contingency Measures 

1. Phase 1 Rule 

The Phase 1 Rule did not address 

anti-backsliding provisions related to 

sections 172(c)(9) and 182(c)(9) of the 

CAA, which require nonattainment area 

SIPs to contain contingency measures 

that would be implemented if an areas 

fails to attain or fails to make RFP 

toward attainment of the 1-hour 

NAAQS. In the Reconsideration Rule 

published on May 26, 2005 (70 FR 

30592), we determined that these 1-hour 

contingency measures would no longer 

be considered required SIP measures 

once the 1-hour standard was revoked. 

This meant that after the 1-hour 

standard was revoked, areas that had 

not submitted 1-hour attainment 

demonstrations or a specific 1-hour RFP 

SIP would no longer be required to 

submit contingency measures in 

conjunction with those SIPs. Also, the 

reconsideration rule stated that areas 

with approved section 172 and 182 

contingency measures in the adopted 

SIP could submit a revision to remove 

them from their SIP when the 1-hour 

standard was revoked. 

2. Effect of Court Ruling 

The Court concluded that EPA 

improperly waived the CAA 

requirements for contingency measures 

that would apply based on the failure of 

an area to meet a 1-hour RFP milestone 

or 1-hour attainment date. The Court 

vacated the provision of the Phase 1 

Rule that waived this requirement for 

areas once the 1-hour standard was 

revoked. Consequently, areas remain 

subject to the obligation to have 

contingency measures for failure to 

attain the 1-hour NAAQS or make RFP 

toward attainment of the 1-hour NAAQS 

and cannot remove section 172 or 182 

contingency measures from their SIPs 

based on revocation of the 1-hour 

standard. 

3. Proposed Rule 

The EPA is proposing that states be 

required to retain contingency measures 

in their SIPs that would apply based on 

a failure to meet a 1-hour RFP milestone 

or upon a failure to attain the 1-hour 

standard by the area’s attainment date. 

Consistent with the Court’s vacatur of 

§ 51.905(e)(2)(iii), which waived this 

requirement once the 1-hour standard 

was revoked, EPA proposes to remove 

this provision from the regulations. 

Furthermore, consistent with EPA’s 

proposal to retain these 1-hour 

contingency measure requirements as 

anti-backsliding measures, we also 

propose to list contingency measures 

under sections 172(c)(9) and 182(c)(9) of 

the CAA as applicable requirements 

under § 51.900(f). 

In situations where an area attains the 

1-hour NAAQS by its applicable 

attainment date, the area is not subject 

to the requirement to implement 

contingency measures for failure to 

attain the standard by its attainment 

date. As a result, any area that meets or 

has met its attainment deadline, even if 

the area subsequently lapses into 

nonattainment, would not be required to 

implement the contingency measures 

for failure to attain the standard by its 

attainment date for purposes of antibacksliding. 

In situations where a 1-hour ozone 

nonattainment area is in attainment 

based on current air quality (e.g., after 

the area’s attainment date), EPA can 


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16This applies even if the area did not attain by 

its attainment date; however, the CAA requires EPA 

in these cases to make a finding of failure to attain 

by the attainment date and either reclassify the area 

or apply other requirements (such as section 185) 

as specified for the area’s classification. 

17The Clean Data Policy, as it is embodied in 40 

CFR. 51.918, is being challenged in the context of 

the 8-hour ozone standard in the Phase 2 Rule 

ozone litigation pending in the DC Circuit, NRDC 

v. EPA, No. 06–1045 (DC Cir.). 

18The 1-hour standard was revoked for most 

areas on June 15, 2005, the date one-year after the 

effective date of designation. For the 13 EAC areas 

designated attainment with an effective date of 

April 15, 2008, the 1-hour standard will be revoked 

April 15, 2009, and for the Denver EAC area, which 

was designated nonattainment effective November 

20, 2007, the 1-hour standard will be revoked 

November 20, 2008. 

propose to make a finding of 

attainment.16 This finding would be 

pursuant to the interpretation set forth 

in the May 10, 1995 memorandum from 

John S. Seitz, Director, Office of Air 

Quality Planning and Standards, 

entitled ‘‘Reasonable Further Progress, 

Attainment Demonstration, and Related 

Requirements for Ozone Nonattainment 

Areas Meeting the Ozone Ambient Air 

Quality Standard’’ (Clean Data Policy). 

Under this policy, if EPA determines 

through rulemaking that the area is 

meeting the 1-hour ozone standard, the 

requirements for the state to submit an 

attainment demonstration and related 

components such as reasonably 

available control measures (RACM), RFP 

demonstration, contingency measures 

for failure to attain or make reasonable 

further progress and the section 185 fees 

program are suspended as long as the 

area continues to attain the 1-hour 

ozone NAAQS. If the area subsequently 

violates the ozone NAAQS, EPA would 

initiate notice-and-comment rulemaking 

to withdraw the determination of 

attainment, which would result in 

reinstatement of the requirement for the 

state to submit such plans. 

The Tenth, Seventh and Ninth 

Circuits have upheld EPA rulemakings 

applying the Clean Data Policy. See 

Sierra Club v. EPA, 99 F. 3d 1551 (10th 

Cir. 1996); Sierra Club v. EPA. 375 F.3d 

537 (7th Cir. 2004) and Our Children’s 

Earth Foundation v. EPA, No. 04–73032 

(9th Cir. June 28, 2005) memorandum 

opinion.17 See also the discussion and 

rulemakings cited in EPA’s Phase 2, 8- 

Hour Ozone Implementation 

Rulemaking, 70 FR 71644–71646 

(November 29, 2005), which codified 

the policy for the 8-hour NAAQS. 

Thus if EPA makes a determination of 

attainment under the Clean Data Policy, 

EPA would find that the requirement to 

submit section 172 and 182 contingency 

measures under the 1-hour antibacksliding provisions (40 CFR 51.905) 

would be suspended for so long as the 

area continues to attain the 1-hour 

standard. 

Under 40 CFR 51.905(b), states remain 

subject to the obligations under 

§ 51.905(a)(1)(i) and (a)(2) until the area 

attains the 8-hour NAAQS for purposes 

of anti-backsliding. After the area attains 

the 8-hour NAAQS, states may request 

that these obligations be shifted to 

contingency measures, consistent with 

sections 110(l) and 193 of the CAA; 

however, the state cannot remove the 

obligations from the SIP. 

D. Deletion of Obsolete 1-Hour Ozone 

Standard Provision 

For the reasons stated above in the 

background section concerning the 

obsolete nature of 40 CFR 50.9(c), we 

are proposing to delete that paragraph. 

This will have no effect on the status of 

the 1-hour ozone standard,18 or on the 

anti-backsliding provisions which set 

forth how areas must meet 1-hour 

requirements that applied to the area at 

the time the area was designated for the 

8-hour standard. 

IV. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is a 

significant regulatory action because it 

raises novel legal or policy issues 

arising out of legal mandates. 

Accordingly, EPA submitted this action 

to the Office of Management and Budget 

(OMB) for review under EO 12866 and 

any changes made in response to OMB 

recommendations have been 

documented in the docket for this 

action. 

B. Paperwork Reduction Act 

This action does not impose any new 

information collection burden. This 

action sets forth EPA’s proposed rule for 

addressing portions of the partial 

vacatur of EPA’s Phase 1 rule for 

implementation of the 1997 8-hour 

ozone NAAQS. However, the Office of 

Management and Budget (OMB) has 

previously approved the information 

collection requirements contained in the 

existing Phase 1 Rule (April 30, 2004; 69 

FR 23951) and the Phase 2 Rule 

(November 29, 2005; 70 FR 71612) 

regulations and has been assigned OMB 

Control Number 2060–0594. The OMB 

control numbers for EPA’s regulations 

in 40 CFR are listed in 40 CFR part 9. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an Agency to prepare 

a regulatory flexibility analysis of any 

regulation subject to notice and 

comment rulemaking requirements 

under the Administrative Procedures 

Act or any other statute unless the 

Agency certifies the rule will not have 

a significant economic impact on a 

substantial number of small entities. 

Small entities include small businesses, 

small organizations, and small 

governmental jurisdictions. 

For purposes of assessing the impacts 

of these proposed regulations revisions 

on small entities, small entity is defined 

as: (1) A small business that is a small 

industrial entity as defined in the U.S. 

Small Business Administration (SBA) 

size standards. (See 13 CFR 121.); (2) A 

governmental jurisdiction that is a 

government of a city, county, town, 

school district or special district with a 

population of less than 50,000; and (3) 

A small organization that is any not-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impact of these proposed revisions to 

the regulations on small entities, I 

certify that this action will not have a 

significant economic impact on a 

substantial number of small entities. 

This proposal will not impose any 

requirements on small entities. 

We continue to be interested in the 

potential impacts of the proposed rule 

on small entities and welcome 

comments on issues related to such 

impacts. 

D. Unfunded Mandates Reform Act 

This action contains no Federal 

mandate under the provisions of Title II 

of the Unfunded Mandates Reform Act 

of 1995 (UMRA), 2 U.S.C. 1531–1538 for 

State, local, or tribal governments or the 

private sector. The action imposes no 

enforceable duty on any State, local or 

tribal governments or the private sector. 

Therefore, this action is not subject to 

the requirements of section 202 and 205 

of the UMRA. 

This action is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. The 

EPA has determined that these proposed 

regulation revisions contain no 

regulatory requirements that may 

significantly or uniquely affect small 

governments, including tribal 

governments because these regulations 

affect Federal agencies only. 

E. Executive Order 13132—Federalism 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by state 


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and local officials in the development of 

regulatory policies that have Federalism 

implications.’’ Policies that have 

‘‘Federalism implications’’ are defined 

in the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the states, on the relationship 

between the national government and 

the states, or on the distribution of 

power and responsibilities among the 

various levels of government.’’ 

This action does not have Federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This proposed 

rule, if made final, would restore 

provisions that existed under the 1-hour 

ozone standard and that would have 

continued under the 1-hour standard 

had not EPA issued a revised ozone 

standard. Those provisions were 

revoked when EPA revoked the 1-hour 

standard itself. Although a court upheld 

EPA’s right to revoke the 1-hour 

standard, the court ruled that EPA 

erroneously revoked several 1-hour 

NAAQS provisions and vacated those 

portion of EPA’s rule. Thus, the court’s 

own ruling restored the former 1-hour 

NAAQS provisions. This proposed rule 

merely proposes a corrective regulatory 

mechanism for restoring the 1-hour 

contingency measure provision that the 

court had already restored. Thus, 

Executive Order 13132 does not apply 

to these proposed regulation revisions. 

In the spirit of Executive Order 13121 

and consistent with EPA policy to 

promote communications between EPA 

and state and local governments, EPA is 

soliciting comments on this proposal 

from state and local officials. 

F. Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have Tribal 

implications as specified in Executive 

Order 13175. They do not have a 

substantial direct effect on one or more 

Indian Tribes, since no Tribe has to 

develop a SIP under these proposed 

regulatory revisions. Furthermore, these 

proposed regulation revisions do not 

affect the relationship or distribution of 

power and responsibilities between the 

Federal government and Indian Tribes. 

The CAA and the Tribal Air Rule 

establish the relationship of the Federal 

government and Tribes in developing 

plans to attain the NAAQS, and these 

revisions to the regulations do nothing 

to modify that relationship. Thus, 

Executive Order 13175 does not apply. 

EPA specifically solicits additional 

comment on the proposed revisions to 

the regulations from Tribal officials. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

EPA interprets EO 13045 (62 FR 

19885, April 23, 1997) as applying only 

to those regulatory actions that concern 

health or safety risks, such that the 

analysis required under section 5–501 of 

the EO has the potential to influence the 

regulation. This action is not subject to 

EO 13045 because these proposed rule 

revisions address whether a SIP will 

adequately attain and maintain the 

NAAQS and meet the obligations of the 

CAA. The NAAQS are promulgated to 

protect the health and welfare of 

sensitive population, including 

children. However, EPA solicits 

comments on whether the proposed 

action would result in an adverse 

environmental effect that would have a 

disproportionate effect on children. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211 (66 FR 28355 (May 22, 

2001)), because it is not a significant 

regulatory action under Executive Order 

12866. 

I. National Technology Transfer 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 

This proposed rulemaking does not 

involve technical standards. Therefore, 

EPA is not considering the use of any 

voluntary consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order (EO) 12898 (59 FR 

7629 (Feb. 16, 1994)) establishes Federal 

executive policy on environmental 

justice. Its main provision directs 

Federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that this 

proposed rule will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because it does not affect the level of 

protection provided to human health or 

the environment. The proposed 

revisions to the regulations would, if 

promulgated revise procedures for states 

to follow in developing SIPs to attain 

the NAAQS, which are designed to 

protect all segments of the general 

populations. As such, they do not 

adversely affect the health or safety of 

minority or low income populations and 

are designed to protect and enhance the 

health and safety of these and other 

populations. 

K. Determination Under Section 307(d) 

Pursuant to sections 307(d)(1)(E) and 

307(d)(1)(V) of the CAA, the 

Administrator determines that this 

action is subject to the provisions of 

section 307(d). Section 307(d)(1)(V) 

provides that the provisions of section 

307(d) apply to ‘‘such other actions as 

the Administrator may determine.’’ 

Appendix A to Preamble. Application 

of the Proposed Classification Scheme 

This appendix lists the proposed new 

subpart 2 classifications for the areas 

that were originally covered under 

subpart 1 in the phase 1 rule (April 30, 

2004) and that are currently still 

designated nonattainment. The 

geographic boundaries of these 

nonattainment areas are provided in 40 

CFR Part 81, Subpart C. 


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Current nonattainment areas not classified under phase 1 rule, as 

vacated by the court a

2001–2003 

8-hour ozone 

design value 

ppm 

Proposed subpart 2 

classification 

2004–2006 

8-hour ozone 

design value 

ppm 

2005–2007 

8-hour ozone 

design value 

ppm 

Albany-Schenectady-Troy, NYe ........................................................ 0 .087 Marginal ..................... 0.078 0.079 

Allegan Co, MI ................................................................................... 0 .097 Moderate ................... 0.088 0.093 

Amador and Calaveras Cos (Central Mtn), CAc ............................... 0 .091 Moderate ................... 0.093 0.090 

Buffalo-Niagara Falls, NY .................................................................. 0 .099 Moderate ................... 0.083 0.086 

Chico, CAe ......................................................................................... 0 .089 Marginal ..................... 0.084 0.084 

Cincinnati-Hamilton, OH-KY-IN .......................................................... 0 .096 Moderate ................... 0.086 0.088 

Clearfield & Indiana Cos, PAe ........................................................... 0 .09 Marginal ..................... 0.077 0.080 

Columbus, OH ................................................................................... 0 .095 Moderate ................... 0.084 0.087 

Denver-Boulder-Greeley-Ft. Collins-Love, CO b ................................ 0 .087 Marginal ..................... 0.081 0.085 

Door Co, WI d ..................................................................................... 0 .094 Moderate ................... 0.086 0.090 

Essex Co (Whiteface Mtn), NYd ....................................................... 0 .091 Marginal ..................... NAV NAV 

Greene Co, PAe ................................................................................ 0 .089 Marginal ..................... 0.079 0.080 

Haywood and Swain Cos (Great Smoky NP), NC e .......................... 0 .085 Marginal ..................... 0.076 0.078 

Jamestown, NY .................................................................................. 0 .094 Moderate ................... 0.086 0.086 

Kern Co (Eastern Kern), CA .............................................................. 0 .098 Moderate ................... 0.086 0.085 

Knoxville, TN ...................................................................................... 0 .092 Moderate ................... 0.084 0.088 

Las Vegas, NVe ................................................................................. 0 .086 Marginal ..................... 0.083 0.086 

Manitowoc Co, WI e ........................................................................... 0 .09 Marginal ..................... 0.082 0.086 

Mariposa and Tuolumne Cos (Southern Mtn),CAc ........................... 0 .091 Moderate ................... 0.086 0.085 

Nevada Co. (Western Part), CA ........................................................ 0 .098 Moderate ................... 0.096 0.095 

Phoenix-Mesa, AZ e ........................................................................... 0 .087 Marginal ..................... 0.083 0.083 

Pittsburgh-Beaver Valley, PA ............................................................ 0 .094 Moderate ................... 0.083 0.087 

Rochester, NYe ................................................................................. 0 .088 Marginal ..................... 0.072 0.080 

San Diego, CA ................................................................................... 0 .093 Moderate ................... 0.088 0.089 

Sutter Co (Sutter Buttes), CAe .......................................................... 0 .088 Marginal ..................... 0.082 0.081 

aA number of areas that were placed in Subpart 1 under the vacated portion of the Phase 1 Rule have since attained the 8-hour ozone standard and have been redesignated to attainment. Because these areas are now designated attainment for the ozone standard, they are not nonattainment areas subject to classification and thus are not included in this table. b Denver originally participated in the Early Action Compact (EAC) program and was listed in the April 30, 2004 designation action as a nonattainment area under subpart 1; its nonattainment designation was deferred until November 20, 2007, at which time based on a violation of the 

1997 8-hour ozone NAAQS, Denver’s nonattainment designation became effective. Denver has planning requirements as a former EAC area. cArea would have been marginal but did not have attaining design values by the marginal area attainment date (June 15, 2007) (based on 

2004-2006 design values). dEssex Co (the top of Whiteface Mtn), NY, and Door County, WI, would be eligible for consideration under CAA section 182(h) as Rural 

Transport Areas. This is based on the 1999 definition of Metropolitan Statistical Areas; neither of the above two areas is in or adjacent to an 

MSA as defined by the Office of Management and Budget (OMB) in 1999 (June 30, 1999; 64 FR 35548). Essex Co does not have a design 

value for the 2005-2007 period (indicated by NAV (not available)). eThese areas had attaining design values as of the marginal area attainment date (June 15, 2007) (based on 2004–2006 design values). 

List of Subjects 

40 CFR Part 50 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Lead, Nitrogen dioxide, Ozone, 

Particulate matter, Sulfur oxides. 

40 CFR Part 51 

Air pollution control, 

Intergovernmental relations, Ozone, 

Particulate matter, Transportation, 

Volatile organic compounds. 

Authority: 42 U.S.C. 7409; 42 U.S.C. 7410; 

42 U.S.C. 7511–7511f; 42 U.S.C. 7601(a)(1). 

Dated: January 9, 2009. 

Stephen L. Johnson, 

Administrator. 

For the reasons stated in the 

preamble, title 40, chapter I of the Code 

of Federal Regulations is proposed to be 

amended as follows: 

PART 50—NATIONAL PRIMARY AND 

SECONDARY AMBIENT AIR QUALITY 

STANDARDS 

1. The authority citation for part 50 

continues to read as follows: 

Authority: 42 U.S.C. 7401, et seq. 

§ 50.9 [Amended] 

2. Section 50.9 is amended by 

removing and reserving paragraph (c). 

PART 51—REQUIREMENTS FOR 

PREPARATION, ADOPTION, AND 

SUBMITTAL OF IMPLEMENTATION 

PLANS 

3. The authority citation for part 51 

continues to read as follows: 

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

7671q. 

Subpart X—[Amended] 

4. Section 51.900 is amended by 

adding paragraph (f)(14) to read as 

follows: 

§ 51.900 Definitions. 

* * * * * 

(f) * * * 

(14) Contingency measures under 

CAA sections 172(c)(9) and 182(c)(9) 

that would be triggered based on a 

failure to attain the 1-hour NAAQS by 

the applicable attainment date or to 

make reasonable further progress toward 

attainment of the 1-hour NAAQS. 

* * * * * 

5. Section 51.902 is revised to read as 

follows: 

§ 51.902 Which classification and 

nonattainment area planning provisions of 

the CAA shall apply to areas designated 

nonattainment for the 8-hour NAAQS? 

(a) An area designated nonattainment 

for the 8-hour NAAQS will be classified 

in accordance with section 181 of the 

CAA, as interpreted in § 51.903(a), for 

purposes of the 8-hour NAAQS, and 

will be subject to the requirements of 

subpart 2 that apply for that 

classification. 

(b) [Reserved] 

6. Section 51.905 is amended as 

follows: 

a. By adding a sentence to the end of 

paragraph (b). 


hsrobinson on PROD1PC76 with PROPOSALS
Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Proposed Rules 2945 

b. By removing and reserving 

paragraphs (e)(2)(ii) and (e)(2)(iii). 

c. By removing paragraph (e)(4). 

§ 51.905 How do areas transition from the 

1-hour NAAQS to the 8-hour NAAQS and 

what are the anti-backsliding provisions? 

* * * * * 

(b) * * * Once an area attains the 1- 

hour NAAQS, the section 172 and 

182 contingency measures under the 

1-hour NAAQS can be shifted to 

contingency measures for the 8-hour 

ozone NAAQS and must remain in the 

SIP until the area is redesignated to 

attainment for the 8-hour NAAQS. 

* * * * * 

[FR Doc. E9–806 Filed 1–15–09; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R02–OAR–2008–0497, FRL–8763–4] 

Approval and Promulgation of 

Implementation Plans; New Jersey 

Reasonable Further Progress Plans, 

Reasonably Available Control 

Technology, Reasonably Available 

Control Measures and Conformity 

Budgets 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing action on 

portions of two State Implementation 

Plan revisions submitted by New Jersey 

that are intended to meet several Clean 

Air Act (Act) requirements for attaining 

the 0.08 part per million (ppm) 8-hour 

ozone national ambient air quality 

standards. EPA is proposing approval 

of: The 2008 reasonable further progress 

plan and associated 2008 ozone 

projection year emission inventories, 

contingency measures for the 2008 

reasonable further progress plan, 2008 

conformity budgets used for planning 

purposes, and the reasonably available 

control measure analysis. In addition, 

EPA is proposing a conditional approval 

of New Jersey’s efforts to meet the 

reasonably available control technology 

requirement. The intended effect of this 

action is to approve those programs that 

meet Act requirements and to further 

achieve emission reductions that will be 

critical to attainment of the national 

ambient air quality standard for ozone 

in New Jersey’s two nonattainment 

areas. 

DATES: Comments must be received on 

or before February 17, 2009. 

ADDRESSES: Submit your comments, 

identified by Docket Number EPA–R02– 

OAR–2008–0497, by one of the 

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 2 Office, 290 

Broadway, 25th Floor, New York, New 

York 10007–1866. 

• Hand Delivery: Raymond Werner, 

Chief, Air Programs Branch, 

Environmental Protection Agency, 

Region 2 Office, 290 Broadway, 25th 

Floor, New York, New York 10007– 

1866. Such deliveries are only accepted 

during the Regional Office’s normal 

hours of operation. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 to 4:30 

excluding Federal holidays. 

Instructions: Direct your comments to 

Docket No. EPA–R02–OAR–2008–0497. 

EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online 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 or 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. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the Environmental Protection Agency, 

Region II Office, Air Programs Branch, 

290 Broadway, 25th Floor, New York, 

New York 10007–1866. EPA requests, if 

at all possible, that you contact the 

individual listed in the FOR FURTHER

INFORMATION CONTACT section to view 

the hard copy of the docket. You may 

view the hard copy of the docket 

Monday through Friday, 8 a.m. to 4 

p.m., excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Raymond Forde 

(forde.raymond@epa.gov) concerning 

emission inventories and reasonable 

further progress and Paul Truchan 

(truchan.paul@epa.gov) concerning 

other portions of the SIP revision, Air 

Programs Branch, Environmental 

Protection Agency, 290 Broadway, 25th 

Floor, New York, New York 10007– 

1866, (212) 637–4249. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. What Action Is EPA Proposing? 

II. Background Information 

A. What Are the Act Requirements for a 

Moderate 8-Hr Ozone Nonattainment 

Area? 

1. History and Time Frame for the State’s 

Attainment Demonstration SIP 

2. Moderate Area Requirements 

III. What Was Included in New Jersey’s SIP 

Submittals? 

IV. EPA’s Review and Technical Information 

A. Emission Inventories 

1. What Are the Act Requirements? 

2. What Emission Inventories Were 

Included in the SIP? 

3. What Is EPA’s Evaluation? 

B. Reasonable Further Progress Plans 

1. What are the Act Requirements? 

2. What Reasonable Further Progress Plans 

Were Included in the SIP? 

3. What Is EPA’s Evaluation? 

C. Contingency Measures 

1. What Are the Act Requirements? 

2. What Contingency Measures Were 

Included in the SIP? 

3. What Is EPA’s Evaluation? 

D. RACT for Stationary Sources 

1. What Are the Act Requirements? 

2. How Did New Jersey Perform Its RACT 

Analysis? 

3. What Were the Results of New Jersey’s 

Analysis of RACT for Stationary 

Sources? 

4. What Is EPA’s Evaluation? 


hsrobinson on PROD1PC76 with PROPOSALS