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[Federal Register: August 24, 2010 (Volume 75, Number 163)]
[Proposed Rules]               
[Page 51960-51968]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24au10-21]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 51

[EPA-HQ-OAR-2008-0462, FRL-9192-7]
RIN 2060-AP30

 
Proposed Rule To Implement the 1997 8-Hour Ozone National Ambient 
Air Quality Standard: New Source Review Anti-Backsliding Provisions for 
Former 1-Hour Ozone Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: This proposed action would clarify the obligation to retain 1-
hour nonattainment new source review (NSR) program requirements for 
certain areas designated nonattainment for the 1997 8-hour ozone 
national ambient air quality standard (NAAQS). The EPA proposes to 
revise the rule for implementing the 1997 8-hour ozone NAAQS to address 
how NSR requirements that applied by virtue of the area's 1-hour ozone 
NAAQS classification should apply under the anti-backsliding provisions 
of the 1997 8-hour implementation rule. This proposed rule responds to 
the ruling by the U.S. Court of Appeals for the District of Columbia 
Circuit that the 1-hour major NSR program, as it applies to areas that 
were designated 1-hour nonattainment on the date of designation for the 
1997 8-hour NAAQS, is a required control to prevent backsliding. EPA 
has separately proposed to remove the vacated provisions of the rule 
that allowed States to remove (or not include, if not yet adopted) 1-
hour major NSR for nonattainment areas from their State implementation 
plans (SIPs).

DATES: Comments. Comments must be received on or before September 23, 
2010.
    Public Hearing. If anyone contacts us requesting a public hearing 
by September 3, 2010, we will hold a public hearing approximately 30 
days after publication of this proposal in the Federal Register. 
Additional information about the hearing would be published in a 
subsequent Federal Register notice.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2008-0462, by one of the following methods:
    http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: a-and-r-docket@epa.gov.
     Fax: (202) 566-9744.
     Mail: Air and Radiation Docket and Information Center, 
Attention Docket ID No. EPA-HQ-OAR-2008-0462, Environmental Protection 
Agency, 1301 Constitution Ave., NW., Washington, DC 20460. Mail Code: 
2822T. Please include two copies if possible.
     Hand Delivery: Air and Radiation Docket and Information 
Center, Attention Docket ID No. EPA-HQ-OAR-2008-0462, Environmental 
Protection Agency in the EPA Headquarters Library, Room Number 3334 in 
the EPA West Building, located at 1301 Constitution Ave., NW., 
Washington, DC. The EPA/DC Public Reading Room hours of operation will 
be 8:30 a.m. to 4:30 p.m. Eastern Standard Time (EST), Monday through 
Friday, Air and Radiation Docket and Information Center.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2008-0462. The EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
on-line at http://www.regulations.gov, including any personal 
information provided, unless the comment includes information claimed 
to be confidential business information (CBI) or other information 
whose disclosure is restricted by statute. Do not submit information 
that you consider to be CBI or otherwise protected through http://www.regulations.gov, or e-mail. The http://www.regulations.gov Web Site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting 
comments, go to the SUPPLEMENTARY INFORMATION section of this document.

[[Page 51961]]

    Docket: All documents in the docket are listed in http://www.regulations.gov. Although listed in the index, some information is 
not publicly available, i.e., CBI or other information whose disclosure 
is restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically in http://www.regulations.gov or in 
hard copy at the Air and Radiation Docket and Information Center, EPA 
Headquarters Library, Room Number 3334 in the EPA West Building, 
located at 1301 Constitution Ave., NW., Washington, DC. The Public 
Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744.
    Public Hearing: If a hearing is held, it will be held at the U.S. 
Environmental Protection Agency, 1200 Pennsylvania Avenue, Washington, 
DC 20004.

FOR FURTHER INFORMATION CONTACT: For information on 1-hour major NSR, 
contact: Mr. David Painter, Office of Air Quality Planning and 
Standards, U.S. Environmental Protection Agency (C504-03), Research 
Triangle Park, NC 27711, telephone number (919) 541-5515, fax number 
(919) 541-5509 or by e-mail at painter.david@epa.gov.
    To request a public hearing, contact Mrs. Pamela Long, Office of 
Air Quality Planning and Standards (C504-03), U.S. Environmental 
Protection Agency, Research Triangle Park, North Carolina 27711, 
telephone number (919) 541-0641 or by e-mail at long.pam@epa.gov, fax 
number (919) 541-5509.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    Entities potentially affected directly by this action include 
certain State and Tribal governments that manage air quality for areas 
designated nonattainment for the 1997 ozone NAAQS. See Table 1 in this 
notice for a list of potentially affected areas.

B. What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
http://www.regulations.gov or e-mail. Clearly mark the part or all of 
the information that you claim to be CBI. For CBI information in a disk 
or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM 
as CBI and then identify electronically within the disk or CD-ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed to be CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

C. Where can I get a copy of this document and other related 
information?

    In addition to being available in the docket, an electronic copy of 
this notice is also available on the World Wide Web. A copy of this 
notice will be posted at http://www.epa.gov/nsr.

D. How can I find information about a possible public hearing?

    To request a public hearing or information pertaining to a public 
hearing on this document, contact Mrs. Pamela Long at (919) 541-0641 
before 5 p.m. on September 3, 2010. Persons interested in presenting 
oral testimony should contact Mrs. Pamela Long at (919) 541-0641. Any 
person who plans to attend the hearing should also contact Mrs. Pamela 
Long at (919) 541-0641 or visit the EPA's Web Sites at http://www.epa.gov/nsr to learn if a hearing will be held.

E. How is this notice organized?

    The information presented in this notice is organized as follows:

I. General Information
    A. Does this action apply to me?
    B. What should I consider as I prepare my comments for EPA?
    C. Where can I get a copy of this document and other related 
information?
    D. How can I find information about a possible public hearing?
    E. How is this notice organized?
II. Background for This Proposal
    A. Anti-Backsliding Provisions
    B. Reconsideration of Certain Provisions of the Phase 1 Rule
    C. South Coast Decision
III. This Action
    A. Applicability of 1-Hour NSR Requirements
    B. Removal of 1-Hour NSR Requirements
    C. Section 110(l)
IV. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132--Federalism
    F. Executive Order 13175--Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology and Transfer Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Determination Under Section 307(d)

II. Background for This Proposal

A. Anti-Backsliding Provisions

    The EPA codified the anti-backsliding provisions governing the 
transition from the revoked 1-hour ozone NAAQS to the 1997 8-hour ozone 
NAAQS in 40 CFR 51.905(a) (part of the ``Phase 1 Rule''). These 
provisions, as promulgated, retained 13 requirements specified under 
section 182 of the Clean Air Act (CAA or Act), as those requirements 
applied for the 1-hour ozone standard.\1\ These 13 requirements were 
identified as ``applicable requirements'' in the regulation. 40 CFR 
51.900(f). The applicable requirements include: (1) Reasonably 
available control technology (RACT) for major stationary sources; (2) 
vehicle inspection and maintenance (I/M) programs; (3) major source 
applicability thresholds for purposes of RACT; (4) rate of progress 
reductions; (5) stage II gasoline vehicle refueling vapor recovery; (6) 
clean fuels fleet program under section 183(c)(4) of the CAA; (7) clean 
fuels for boilers under

[[Page 51962]]

section 182(e)(3) of the CAA; (8) transportation control measures; (9) 
enhanced (ambient) monitoring; (10) transportation controls under 
section 182(c)(5); (11) vehicle miles traveled provisions; (12) 
NOX requirements under section 182(f) of the CAA; and (13) 
attainment demonstrations. Under the Phase 1 Rule, these requirements 
continue to apply to an area after revocation of the 1-hour NAAQS if 
the requirements were applied in the area based on the area's 1-hour 
ozone designation and classification as of the effective date of its 
1997 8-hour designation (for most areas the effective date of the 1997 
8-hour designation was June 15, 2004). 40 CFR 51.900(h).
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    \1\ See Final Rule to Implement the 8-Hour Ozone National 
Ambient Air Quality Standard-Phase 1 (69 FR 23951, April 30, 2004).
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    The rule further provides that an area remains subject to these 
applicable requirements until the area attains the 1997 8-hour NAAQS. 
40 CFR 51.905(b). Additionally, such obligations cannot be removed from 
a SIP, even if we redesignate the area to attainment for the 8-hour 
NAAQS. However, upon redesignation to attainment of the 8-hour ozone 
standard, a State could request that such requirements be moved to the 
contingency measures portion of the SIP (40 CFR 51.905(b)).
    In the Phase 1 Rule and in two subsequent reconsideration rules 
(which are described below), EPA explicitly excluded 1-hour major NSR 
from the list of retained applicable requirements (Sec.  51.905(e)).\2\ 
The Phase 1 Rule provided at Sec.  51.905(e)(4)(i) that when we revoked 
the 1-hour standard, the State would no longer be required to retain 
the major NSR provisions associated with the 1-hour NAAQS in its SIP 
for areas that were designated nonattainment for the 1-hour ozone 
standard. Instead, the State could revise its SIP to replace the 1-hour 
NSR requirements with those specific to its new 8-hour ozone 
designation and classification status. In many cases, this would allow 
an area to adopt higher major NSR source applicability thresholds and 
lower offset ratios associated with the area's lower 8-hour 
classification. This would have the effect of reducing the number of 
sources subject to major NSR source requirements, including more 
stringent emission limitations and offsets.
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    \2\ Note that if the area is nonattainment for the 1997 8-hour 
standard, the CAA requires that nonattainment NSR would apply to the 
area based on its classification for the 1997 8-hour standard.
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    The Phase 1 Rule also contained a provision directed specifically 
at areas that were designated 8-hour attainment and 1-hour 
nonattainment. That provision addressed the applicable requirements 
listed in Sec.  51.900(f) as well as 1-hour NSR requirements. With 
respect to the 1-hour NSR requirement, Sec.  51.905(a)(3) stated: ``For 
such areas, the state may request that the nonattainment NSR provisions 
be removed from the SIP on or after the date of revocation of the 1-
hour NAAQS and need not be shifted to contingency measures subject to 
paragraph (e)(4) of this section.''

B. Reconsideration of Certain Provisions of the Phase 1 Rule

    Following publication of the Phase 1 Rule, the Administrator 
received three petitions pursuant to section 307(b)(7)(B) of the CAA 
requesting reconsideration of several aspects of the final rule.\3\ EPA 
addressed certain issues raised in these petitions in two rulemakings. 
In the first reconsideration rulemaking, EPA further clarified the 
implementation rule in two respects: (a) CAA section 185 penalty fees 
under the 1-hour standard would no longer be applicable after 
revocation of the 1-hour standard, and (b) the effective date of 
designations under the 1997 8-hour standard (i.e., for almost all 
areas, June 15, 2004) is the date for determining which 1-hour control 
measures continue to apply in an area once the 1-hour standard is 
revoked.\4\ Additionally, EPA clarified that the requirement to retain 
1-hour contingency measures for failure to make progress or failure to 
attain would no longer apply once we revoked the 1-hour standard.
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    \3\ Petitions for reconsideration of the Phase 1 Rule were filed 
by: (1) Earthjustice on behalf of the American Lung Association, 
Environmental Defense Fund, Natural Resources Defense Council, 
Sierra Club, Clean Air Task Force, Conservation Law Foundation, and 
Southern Alliance for Clean Energy; (2) the National Petrochemical 
and Refiners Association and the National Association of 
Manufacturers; and (3) the American Petroleum Institute, American 
Chemistry Council, American Iron and Steel Institute, National 
Association of Manufacturers and the U.S. Chamber of Commerce.
    \4\ 70 FR 30592 (May 26, 2005).
---------------------------------------------------------------------------

    In the second reconsideration rulemaking, we proposed and took 
comment on the issue of whether we should interpret the Act to require 
8-hour ozone nonattainment areas to retain major NSR requirements that 
applied on the basis of the areas' 1-hour ozone nonattainment 
classification (70 FR 17018, April 4, 2005). We took final action on 
this NSR issue on June 30, 2005 (70 FR 39413, July 8, 2005), 
determining not to require States to retain major NSR under the 1-hour 
standard once it was revoked.

C. South Coast Decision

    In South Coast Air Quality Management District, et al., v. EPA, 472 
F.3d 882 (DC Cir. 2006) (South Coast), the Court vacated EPA's waiver 
of 1-hour major nonattainment NSR requirements as they apply to the 1-
hour standard and stated that removing them from a SIP ``would 
constitute impermissible backsliding.'' The decision was based on 
challenges by several parties to EPA's Phase 1 Rule and the two 
reconsideration rules. The Court upheld certain challenges and rejected 
others, but purported to vacate the Phase 1 Rule in its entirety. South 
Coast Air Quality Management District, et al., v. EPA, 472 F.3d 882 (DC 
Cir. 2006). The EPA requested rehearing and clarification of the 
ruling, and, on June 8, 2007, the Court clarified that it vacated the 
rule only to the extent that it had upheld the petitioners' challenges. 
South Coast Air Quality Management District, et al., v. EPA, 2007 U.S. 
App. LEXIS 13303 (DC Cir. 2007). Thus, the Court vacated the provisions 
that waived obligations as they applied under the revoked 1-hour 
standard for major nonattainment NSR, CAA section 185 penalty fees, and 
contingency measures for failure to attain or to make reasonable 
progress toward attainment.
    We have separately proposed to remove these provisions from the 
regulations at 40 CFR part 51 in order to ensure that the published 
regulatory text is consistent with the Court's vacatur. 74 FR 2936 
(January 16, 2009). With regard to NSR, the South Coast decision means 
that the 1-hour major NSR thresholds and offsets remain applicable to 
those areas that had not been redesignated to 1-hour attainment by the 
date of designation for the 8-hour ozone NAAQS (except where the area 
has since been redesignated to attainment for the 8-hour standard). As 
previously stated in the October 3, 2007, memo from Robert J. Meyers to 
the Regional Administrators, States are to comply with the South Coast 
decision as quickly as possible. States should take appropriate steps 
to implement the 1-hour major NSR requirements in accordance with the 
South Coast decision without waiting for completion of this rulemaking.

III. This Action

    This action proposes regulatory language to clarify the obligation 
to retain 1-hour major nonattainment NSR requirements and proposes when 
States can request that these requirements be removed from their SIPs.
    This proposal focuses on the nonattainment NSR aspects of the South 
Coast decision that can be clarified through additions of new rule 
language. In a separate action, we have proposed to remove the vacated 
regulatory

[[Page 51963]]

provisions in Sec.  51.905(e)(4) which waived the requirement to retain 
1-hour requirements for nonattainment NSR in SIPs.\5\ Also, EPA is 
proposing to amend Sec.  51.905(a)(3), which details how areas 
transition from 1-hour NAAQS to 8-hour NAAQS, and to remove the phrase 
``subject to paragraph (e)(4) of this section'' because paragraph 
(e)(4) was vacated.
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    \5\ In addition, that separate proposed rule addresses two other 
aspects of the rule vacated by the Court in South Coast: (1) How EPA 
will classify areas that it had placed under subpart 1 in the Phase 
1 Rule, and (2) anti-backsliding requirements for contingency 
measures that apply for failure to make progress toward or to attain 
the 1-hour standard.
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A. Applicability of 1-Hour NSR Requirements

    In South Coast, the Court concluded that the 1-hour major NSR 
requirements are controls, and that withdrawing them from the 8-hour 
nonattainment NSR SIP ``would constitute impermissible backsliding.'' 
472 F.3d. 882, 900. The Court vacated the provision of the Phase 1 Rule 
that allowed States, regardless of the 8-hour designation for an area, 
to request that the SIP be revised to remove 1-hour major NSR 
requirements upon revocation of the 1-hour standard.\6\ As noted above, 
we have previously proposed to remove that vacated provision. 74 FR 
2936 (January 16, 2009). In this action, we are proposing to add new 
regulatory text to make it clear that any 8-hour nonattainment area 
designated as 1-hour nonattainment as of the date of 1997 8-hour NAAQS 
designation must continue to apply NSR requirements consistent with 
that area's 1-hour classification.\7\ Such areas cannot remove 1-hour 
major NSR requirements from their SIPs based solely on revocation of 
the 1-hour standard. The implications for areas that are designated 
attainment for the 1997 8-hour standard, or have been redesignated to 
attainment for that standard, and that were designated nonattainment 
for the 1-hour standard at the time of designation for the 1997 8-hour 
standard are discussed in section III.B.1. of this preamble.
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    \6\ These same provisions also allowed States which had not yet 
adopted such programs to not adopt and submit such SIPs. The Court 
also vacated the regulation to the extent it waived the obligation 
to submit such SIPs.
    \7\ In most areas, the date of designation was June 15, 2004.
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    The areas for which anti-backsliding requirements would have 
applied as of June 15, 2004, are listed in Table 1. The areas in Table 
1 had a 1-hour NAAQS nonattainment classification with more stringent 
NSR program requirements than the classification under the 1997 8-hour 
standard on the date of designation under the 8-hour standard, June 15, 
2004. Some areas potentially affected have been redesignated to 
attainment for the 1997 ozone NAAQS since June 15, 2004, and would be 
treated as described in section III.B.

                      Table 1--Ozone Nonattainment Areas Potentially Affected by This Rule
----------------------------------------------------------------------------------------------------------------
                                 Part 81, 1997 8-hour NAA                        Part 81, 1-Hour, NAA
        State        -------------------------------------------------------------------------------------------
                              Area              Classification              Area              Classification
----------------------------------------------------------------------------------------------------------------
AZ..................  Phoenix-Mesa, AZ...  Subpart 1...............  Phoenix, AZ.......  Serious.
CA..................  Los Angeles South    Severe-17...............  Los Angeles South   Extreme.
                       Coast Air Basin,                               Coast Air Basin,
                       CA.                                            CA.
CA..................  Los Angeles-San      Moderate................  Southeast Desert    Severe-17.
                       Bernardino Cos                                 Modified AQMA, CA.
                       (West Mojave), CA.
CA..................  Riverside            Serious.................  Southeast Desert    Severe-17.
                       (Coachella                                     Modified AQMA, CA.
                       Valley), CA.
CA..................  Sacramento Metro,    Serious.................  Sacramento Metro,   Severe-15.
                       CA.                                            CA.
CA..................  San Joaquin Valley,  Serious.................  San Joaquin         Extreme.
                       CA.                                            Valley, CA.
CA..................  Ventura Co, CA.....  Moderate................  Ventura Co, CA....  Severe-15.
CT..................  Greater              Moderate................  Greater             Serious.
                       Connecticut, CT.                               Connecticut, CT.
DC-MD-VA............  Washington DC-MD-VA  Moderate................  Washington DC-MD-   Severe-15.
                                                                      VA.
GA..................  Atlanta, GA........  Marginal................  Atlanta, GA.......  Severe-15.
IL-IN...............  Chicago-Gary-Lake    Moderate................  Chicago-Gary-Lake   Severe-17.
                       County, IL-IN.                                 County, IL-IN.
LA..................  Baton Rouge, LA....  Marginal................  Baton Rouge, LA...  Severe-15.
MA..................  Boston-Lawrence-     Moderate................  Boston-Lawrence-    Serious.
                       Worcester (E. MA),                             Worcester (E.
                       MA.                                            Mass), MA-NH.
MA..................  Springfield          Moderate................  Springfield         Serious.
                       (Western MA), MA.                              (Western MA), MA.
MD..................  Baltimore, MD......  Moderate................  Baltimore, MD.....  Severe-15.
NH..................  Boston-Manchester-   Moderate................  Boston-Lawrence-    Serious.
                       Portsmouth (SE),                               Worcester, NH.
                       NH.
NH..................  Boston-Manchester-   Moderate................  Portsmouth-Dover-   Serious.
                       Portsmouth (SE),                               Rochester, NH.
                       NH (Portsmouth-
                       Dover-Rochester,
                       NH part).
NY..................  Albany-Schenectady-  Subpart 1...............  Albany-Schenectady- Marginal.
                       Troy, NY.                                      Troy, NY.
NY..................  Buffalo-Niagara      Subpart 1...............  Buffalo-Niagara     Marginal
                       Falls, NY*.                                    Falls, NY..
NY..................  Essex Co, NY*......  Subpart 1...............  Essex Co, NY......  Marginal.
NY-NJ-CT............  New York-N. New      Moderate................  New York-N. New     Severe-17.
                       Jersey-Long                                    Jersey-Long
                       Island, NY-NJ-CT.                              Island, NY-NJ-CT.
PA..................  Allentown-Bethlehem- Subpart 1...............  Allentown-          Marginal.
                       Easton, PA*.                                   Bethlehem-Easton,
                                                                      PA-NJ.
PA..................  Altoona, PA*.......  Subpart 1...............  Altoona, PA.......  Marginal.
PA..................  Erie, PA*..........  Subpart 1...............  Erie, PA..........  Marginal.
PA..................  Harrisburg-Lebanon-  Subpart 1...............  Harrisburg-Lebanon- Marginal.
                       Carlisle, PA*.                                 Carlisle, PA.
PA..................  Johnstown, PA*.....  Subpart 1...............  Johnstown, PA.....  Marginal.
PA..................  York, PA*..........  Subpart 1...............  York, PA..........  Marginal.
RI..................  Providence, RI (All  Moderate................  Providence, RI      Serious.
                       counties in RI).                               (All counties in
                                                                      RI).
TX..................  Beaumont-Port        Marginal................  Beaumont-Port       Serious.
                       Arthur, TX.                                    Arthur, TX.
TX..................  Dallas-Fort Worth,   Moderate................  Dallas-Fort Work,   Serious.
                       TX.                                            TX.
TX..................  Houston-Galveston-   Moderate................  Houston-Galveston-  Severe-17.
                       Brazoria, TX.                                  Brazoria, TX.
WI..................  Milwaukee-Racine,    Moderate................  Milwaukee-Racine,   Severe-17.
                       WI.                                            WI.
----------------------------------------------------------------------------------------------------------------
* Indicates area has been redesignated to ``attainment'' as of July 2010 for the 1997 8-hour ozone standard.
  Areas that have been redesignated to attainment are no longer required to implement nonattainment NSR, but
  must at a minimum implement the PSD program.

[[Page 51964]]

B. Removal of 1-Hour NSR Requirements

1. Treatment of 8-Hour Attainment Areas
    EPA does not interpret the South Coast decision as requiring that 
1-hour nonattainment NSR be retained in areas designated attainment for 
the 1997 8-hour standard. Accordingly, in this notice EPA is clarifying 
that it will continue to follow the provisions of 40 CFR 51.905(a)(3) 
with regard to removal of 1-hour NSR requirements in 1997 8-hour ozone 
NAAQS attainment areas. EPA is not proposing to change its treatment of 
such areas. As explained previously, 51.905(a)(3) allows 1997 8-hour 
NAAQS attainment areas, that were designated nonattainment for the 1-
hour standard at the time of their attainment designation for the 8-
hour standard, to request that the 1-hour nonattainment NSR provisions 
be removed from the SIP. (We note that EPA's practice since the 
revocation of the 1-hour standard has also been to allow 1997 8-hour 
ozone NAAQS nonattainment areas, that were designated nonattainment for 
the 1-hour standard at the time of their 8-hour nonattainment 
designation, to request that the 1-hour nonattainment NSR requirements 
be removed from their SIPs upon redesignation of the area to attainment 
of the 1997 8-hour NAAQS.) In lieu of nonattainment NSR, these areas, 
with the exception of those located in the Ozone Transport Region 
(OTR), are subject to prevention of significant deterioration (PSD) 
program requirements based on their 8-hour attainment designation or 
redesignation. For areas that are located in the OTR, ozone 
nonattainment NSR requirements associated with the moderate 
nonattainment classification apply regardless of an area's designation.
    In the South Coast litigation, the petitioners' briefs 
characterized the Phase 1 Rule as removing ``requirements to control 
pollution from new and modified stationary sources in nonattainment 
areas.'' Opening Brief of Environmental Petitioners and South Coast Air 
Quality Management District at 17 (emphasis added); see also Brief for 
the Commonwealth of Massachusetts et al. at 14. Thus, the issue before 
the Court was whether EPA had acted unlawfully by ``permitting 8-hour 
nonattainment areas to only meet weaker requirements under their 8-hour 
classifications.'' Opening Brief of Environmental Petitioners and South 
Coast Air Quality Management District at 20. The Court distinguished 
the South Coast decision from the decision in Greenbaum v. EPA, 370 
F.3d 527 (6th Cir. 2004) in part because ``Greenbaum involved a 
different ultimate question, namely, whether NSR is required for 
attainment areas.'' 472 F.3d. at 902. As the Court noted, ``NSR is a 
permitting process that restricts major modifications and new 
construction based on an area's air-quality classification * * *. As 
relevant, NSR requires major facilities to include technology 
consistent with the lowest achievable emissions rate (``LAER'') and to 
offset any increased emissions with greater reductions elsewhere.'' 472 
F.3d. at 900. The Court stated that ``EPA decided that 1-hour NSR 
requirements are no longer required under the Act and that areas should 
be constrained only by the NSR requirements for their eight-hour 
classification * * *. This marked a change from its 2003 notice of 
proposed rulemaking, in which EPA indicated that `the major source 
applicability cut-offs and offset ratios continue to apply to the 
extent that the area has a higher classification for the 1-hour 
standard than for the 8-hour standard.' '' 472 F.3d. at 901. The Court 
stated that the result of the change from the 2003 proposal to the 
approach adopted in the final Phase 1 Rule was ``to subject fewer areas 
to LAER and to offset requirements that themselves are weakened.'' 
Thus, the issue before the Court involved the substitution of one set 
of nonattainment NSR requirements for another, and not the replacement 
of nonattainment NSR with a PSD program in areas attaining the current 
NAAQS.
    EPA has determined that 1-hour nonattainment major NSR should not 
apply to areas designated attainment for the 1997 8-hour standard, 
regardless of the area's designation for the 1-hour standard at the 
time of designation for the 8-hour standard. The interpretation that 
NSR does not apply to areas designated attainment for a NAAQS and thus 
is not needed in the SIP for such an area is consistent with Greenbaum 
v. EPA, 370 F.3rd 527, at 536 (``It would make little sense for [NSR] 
to be included in the post-attainment SIP, as the Clean Air Act * * * 
explicitly states that attainment area SIPs must include a PSD 
program.''). As the DC Circuit held in Alabama Power, 636 F.3d 323, at 
365 (DC Cir. 1979), the applicability of PSD is geographically limited 
by the language of CAA section 165(a), which states that unless 
specified conditions are met, ``[n]o major emitting facility * * * may 
be constructed in any area to which this part [Part C] applies'' 
(emphasis added). Thus, with respect to ozone, areas designated 
attainment for the 1997 8-hour standard are subject to section 165(a) 
but not to the section 172(c)(5) SIP requirement. For this reason, EPA 
is not requiring that areas designated attainment for the 1997 8-hour 
standard retain 1-hour NSR provisions. Instead, 8-hour attainment areas 
may request that 1-hour nonattainment NSR provisions be removed from 
their SIPs, with PSD taking the place of the nonattainment NSR program 
for ozone. For the same reason, as set forth below, EPA is proposing to 
revise the regulations to clarify that this treatment also applies to 
areas that are redesignated to attainment for the 1997 8-hour standard.
2. Treatment of Areas Designated Nonattainment for Both 1-Hour and 8-
Hour Ozone NAAQS
    Although the Court in South Coast determined that 1-hour 
nonattainment NSR must be retained as an anti-backsliding measure in 
1997 8-hour nonattainment areas that were designated nonattainment for 
the 1-hour standard at the time of the 8-hour designations, the Court 
did not specifically address how long such requirements must remain in 
place. In our Phase 1 Rule, we linked removal of the 1-hour 
requirements retained as ``applicable requirements'' to attainment of 
the 8-hour NAAQS. The rule at Sec.  51.905(b) provides that an 8-hour 
nonattainment area will remain subject to the 13 applicable 
requirements listed in Sec.  51.900(f) until it attains the 8-hour 
standard. Section 51.905(b) further provides that after an area attains 
the 8-hour standard, the State may request that the 1-hour obligations 
be shifted to contingency measures, but may not remove them completely 
from the SIP. The preamble to the Phase 1 Rule clarified that, ``it is 
appropriate to maintain these mandated controls to remain as part of 
the implemented SIP until an area attains the 8-hour NAAQS and is 
redesignated to attainment.'' (69 FR 23983).
    In deciding how to adopt regulatory text consistent with the South 
Coast decision, we do not believe it is appropriate to add the 1-hour 
nonattainment NSR obligation to the list of applicable requirements in 
Sec.  51.900(f) because we do not believe it should remain in the SIP 
as a contingency measure after redesignation for the 8-hour standard. 
Consistent with Greenbaum v. EPA, 370 F.3rd 527, 536, nonattainment 
major NSR requirements are no longer a necessary SIP element once an 
area is redesignated to attainment for a NAAQS. Upon redesignation to 
attainment, the PSD program requirements would apply to

[[Page 51965]]

the area.\8\ Therefore, nonattainment major NSR requirements may be 
removed from the SIP, and do not need to be retained as contingency 
measures for a NAAQS.
---------------------------------------------------------------------------

    \8\ The one exception to this is that all areas located in the 
Ozone Transport Region, including those designated attainment, are 
subject to the obligation to have a nonattainment NSR program.
---------------------------------------------------------------------------

    In lieu of adding 1-hour major NSR to the Sec.  51.900(f) list of 
applicable requirements, we are proposing to add a new Sec.  51.905(g) 
and an analogous new Section VII in Appendix S. The new sections 
clarify the obligation for any 1997 8-hour nonattainment area with a 1-
hour nonattainment designation as of the effective date of designation 
for the 8-hour standard (June 15, 2004 for most areas) to continue to 
apply 1-hour nonattainment NSR requirements consistent with the area's 
1-hour classification, as listed in 40 CFR part 81 subpart C.
    Although we are not proposing to add NSR to the list of applicable 
requirements in 51.900(f), we are proposing that, as with those 
requirements, 1-hour NSR requirements continue to be required SIP 
elements until redesignation to attainment of the 1997 8-hour ozone 
NAAQS.\9\ Under EPA's proposed revision set forth above, the 1-hour 
major NSR requirements may be removed only after an area has attained 
and been redesignated for the 1997 8-hour NAAQS. Under this approach, 
the 1-hour NSR requirements would be treated in a manner similar to the 
13 applicable requirements listed at Sec.  51.900(f), except that the 
State would not be required to retain the 1-hour NSR requirements as 
contingency measures. Instead, PSD would apply upon redesignation to 
attainment for the 1997 8-hour standard, and 1-hour NSR requirements 
could be removed entirely from the SIP.
---------------------------------------------------------------------------

    \9\ We note that although the regulatory text provides that the 
requirements of section 51.900(f) apply until an area ``attains'' 
the 8-hour ozone NAAQS, the accompanying preamble text clarifies 
that these requirements apply until an area is redesignated as 
attainment for the 1997 8-hour ozone NAAQS. 69 FR 23982-83.
---------------------------------------------------------------------------

    As set forth in section III.B.2.b., we are also requesting comment 
on a separate and additional basis--attainment of the 1-hour ozone 
NAAQS (plus specified criteria)--for allowing States to remove 1-hour 
NSR requirements. This opportunity to remove 1-hour NSR requirements 
from the approved SIP would be in addition to the approach of allowing 
States to remove 1-hour NSR upon redesignation to attainment for the 8-
hour NAAQS. Under this additional approach, where an area attains the 
1-hour standard and meets certain other conditions (as determined by 
EPA, in a rulemaking described below) but is still violating the 8-hour 
standard, the State would be permitted, but not required, to remove the 
1-hour nonattainment NSR requirements and apply the NSR requirements 
associated with the 8-hour classification.
    We note that neither EPA's proposal nor the separate, additional 
approach to removal would have any effect on any source permit 
conditions established during the time period the 1-hour major NSR 
program applied. The NSR regulations do not provide a mechanism for 
major NSR permit conditions established under the 1-hour standard to be 
removed from a permit or modified when a SIP is later revised to remove 
the 1-hour NSR thresholds and offset requirements. Replacement or 
removal of NSR SIP provisions does not relieve sources of their 
obligations under previously established permit conditions.
    In addition, we note that this proposal to allow removal of the 1-
hour major NSR requirements after an area has attained and been 
redesignated for the 1997 8-hour NAAQS could be affected by the 
transition to a newer ozone standard.
a. Rationale for Removal of 1-Hour NSR Upon Redesignation to Attainment 
of 8-Hour NAAQS
    We are proposing to require areas to retain 1-hour major NSR 
requirements until the area attains and is redesignated for the 1997 
ozone 8-hour standard, regardless of when, if ever, the area attains 
the 1-hour standard. The rationale for this approach, as set forth in 
the June 2, 2003, Proposed Rule to Implement the 8-Hour Ozone National 
Ambient Air Quality Standard (68 FR 32824), was that the 1997 8-hour 
standard was the standard that EPA determined would protect public 
health and the environment. We adopted this approach for the 13 listed 
applicable requirements in Sec.  51.900(f), as discussed in the final 
Phase 1 Rule (69 FR 23982-83). We believe this rationale also applies 
to NSR. As stated in the Phase 1 Rule, Congress contemplated that 
States implement certain requirements mandated under Subpart 2, 
including specific NSR thresholds and offsets. Once an area 
demonstrates that it has met and can maintain the more health 
protective standard (the 1997 8-hour NAAQS), it would be appropriate to 
remove 1-hour NSR requirements. In addition, adopting this approach for 
NSR would result in similar treatment of NSR and the applicable 
requirements in Sec.  51.900(f), the only difference being that States 
would not need to include nonattainment NSR as a contingency measure. 
We believe it is appropriate to treat NSR in a manner consistent with 
the Sec.  51.900(f) applicable requirements. While we are taking 
comment on the possibility of allowing States to remove NSR earlier 
than the other requirements in some instances (see discussion below on 
the additional basis), we do not plan to finalize that approach unless 
we are persuaded that NSR is sufficiently different from the applicable 
requirements identified in 51.900(f) to warrant different treatment.
    EPA's proposed approach aligns with EPA's current practice 
regarding areas that were initially designated as attainment for the 
1997 8-hour NAAQS or have been redesignated to attainment for the 1997 
8-hour ozone NAAQS. As noted above, EPA's current practice is to allow 
areas to revise their SIPs to remove the 1-hour NSR requirements. This 
approach harmonizes the treatment of areas initially designated as 8-
hour attainment and nonattainment areas that are redesignated to 
attainment for the 8-hour standard. In lieu of nonattainment NSR, these 
areas become subject to PSD programs based on their 8-hour attainment 
designation or redesignation.
    Additionally, we propose adding language to the CFR to clarify 
applicability of section 181(b)(4)(B) for areas not attaining the 
NAAQS. Notwithstanding revocation of earlier ozone NAAQS, States with 
areas designated nonattainment for earlier ozone NAAQS, and classified 
as severe or extreme for such standards as provided in 40 CFR part 81, 
remain subject to the obligation to adopt programs under sections 
181(b)(4) of the CAA. Section 181(b)(4)(B) specifies applicability of 
NSR per requirements for extreme areas for specific instances of 
failure to meet attainment schedules.
b. Supplemental Proposal: Removal of 1-Hour NSR Upon Attainment of 1-
Hour NAAQS and Determination of Eligibility To Remove NSR Requirements
(1) Attainment of 1-Hour NAAQS and Related Criteria
    We are requesting comment on an additional approach that would 
allow States to remove the 1-hour NSR requirements upon attainment of 
the 1-hour ozone NAAQS and satisfaction of other criteria discussed 
below in section ii. After notice and comment rulemaking, EPA would 
make a determination that the area has attained the 1-hour standard and 
met the additional requisite criteria. This would serve as a 
``determination of eligibility to remove 1-hour NSR requirements.'' An 
area that receives such a determination

[[Page 51966]]

would still be required to implement the nonattainment NSR requirements 
associated with its 8-hour classification.
    In our 2003 proposed rule, we took comment on the option of 
allowing 1-hour obligations to be removed upon attaining the level of 
the 1-hour standard. We noted that the rationale for allowing 1-hour 
obligations to be removed upon attaining the level of the 1-hour 
standard was that ``Congress intended an area to continue to implement 
these obligations until it attained the 1-hour standard, at which time 
the area would be able to discontinue implementation upon a showing of 
continued maintenance'' (68 FR 32824, June 2, 2003). While we did not 
finalize this option for the Sec.  51.900(f) applicable requirements, 
we are requesting comment on whether we should adopt a variant of it 
for NSR, and whether doing so would be consistent with the CAA and the 
South Coast decision. In the final Phase 1 Rule, EPA decided that 
attaining the 1-hour standard would not be a basis for allowing States 
to remove from the SIP the 13 applicable requirements related to 1-hour 
nonattainment identified at 51.900(f). The question is whether NSR 
thresholds and offsets are more closely linked to a particular standard 
than the 13 requirements listed in 51.900(f), and thus might be removed 
following a determination of attainment of that standard, coupled with 
other safeguards.
    As noted above in the discussions of 8-hour attainment areas and 
whether NSR requirements should become a contingency measure in a 
maintenance plan attainment SIP, Congress clearly intended that 
nonattainment major NSR was required only until the area was 
redesignated to attainment. After that point, nonattainment major NSR 
for that area would normally be superseded by the PSD program, whose 
purpose is ``to protect public health and welfare from any actual or 
potential adverse effect which in the Administrator's judgment may 
reasonably be anticipated to occur * * * notwithstanding attainment and 
maintenance.'' 42 U.S.C. 7470. In the case of areas that remain 
nonattainment for the 8-hour standard after attaining the 1-hour 
standard, however, the 8-hour major NSR requirements would apply rather 
than PSD. Thus, the concern regarding the retention of nonattainment 
major NSR requirements in an attainment SIP is not present here.
    We are interested in comments addressing whether 1-hour NSR is 
sufficiently different from the applicable requirements identified in 
the Phase 1 Rule that we should allow States to remove it from their 
SIPs prior to redesignation for the 1997 8-hour ozone standard.
(2). Defining ``Eligibility To Remove NSR Requirements'' Associated 
With the Revoked 1-Hour Standard
    In this section, we address which requirements, in addition to 
attainment for the 1-hour ozone standard, the Supplemental Option would 
impose on an area seeking to remove from its SIP 1-hour NSR 
requirements prior to redesignation for the 1997 8-hour standard. In 
the Phase 1 Rule, we stated that upon revocation of the 1-hour 
standard, EPA was no longer obligated to determine whether an area had 
attained that standard. However, under this supplemental approach, we 
are proposing that a determination by EPA that an area has attained the 
1-hour standard would be among the criteria for issuance of a 
determination of eligibility to remove 1-hour NSR obligations. Prior to 
the time that the 1-hour standard was revoked, a change in an ozone 
nonattainment area's designation status required that the area satisfy 
the criteria in section 107(d)(3)(E) of the CAA. These criteria 
include: (i) A finding of attainment of the 1-hour standard based upon 
the most recent three consecutive years of complete, quality assured 
air quality data; (ii) the applicable implementation plan for the area 
under section 110(k) has been fully approved by the Administrator; 
(iii) the improvement in air quality leading to attainment of the 1-
hour NAAQS is due to permanent and enforceable reductions in emissions 
resulting from implementation of the applicable implementation plan and 
Federal air pollutant control regulations and other permanent and 
enforceable reductions; (iv) the Administrator has fully approved a 
maintenance plan for the area as meeting the requirements of section 
175A; and (v) the State containing such area has met all requirements 
applicable to the area under CAA section 110 and part D that pertain to 
the 1-hour ozone standard.
    Under this alternative, additional approach, we are taking comment 
on which of the five criteria that would have applied for purposes of 
redesignating an area for the 1-hour standard should apply for 
declaring that an area has attained the 1-hour standard and is eligible 
to remove 1-hour NSR requirements.
    Under EPA's supplemental option, removal of the 1-hour requirements 
would be permitted upon a determination of eligibility to remove NSR 
requirements. To remove such programs, States would need to submit a 
revision to their SIP, subject to the provisions of section 110(l) 
which states that EPA may not approve a SIP revision ``if the revision 
would interfere with any applicable requirement concerning attainment 
and reasonable further progress (as defined in section 171), or any 
other applicable requirement of the Act.''
    In our Phase 1 Rule, which was vacated by the Court, we concluded 
that a State's removal of 1-hour NSR requirements would not interfere 
with 8-hour attainment or reasonable further progress. However, upon 
additional consideration we now believe that we do not currently have 
adequate data on the extent to which States may be relying on 
particular major NSR thresholds and offset ratios for the growth 
projections contained in their 8-hour attainment plans. Therefore, we 
are not proposing an advance section 110(l) determination as part of 
this action. We believe a case-by-case approach to section 110(l) under 
the supplemental option detailed in this proposal will ensure that any 
SIP changes upon a determination of eligibility to remove NSR 
requirements for the 1-hour ozone NAAQS would not interfere with 
reasonable further progress towards attainment of the 8-hour ozone 
NAAQS.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is a significant regulatory action because it raises novel legal 
or policy issues arising out of legal mandates. Accordingly, EPA 
submitted this action to the Office of Management and Budget (OMB) for 
review under EO 12866 and any changes made in response to OMB 
recommendations have been documented in the docket for this action.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
This action sets forth EPA's proposed rule for addressing portions of 
the partial vacatur of EPA's Phase 1 Rule for implementation of the 
1997 8-Hour ozone NAAQS. However, OMB has previously approved the 
information collection requirements contained in the existing Phase 1 
Rule (April 30, 2004; 69 FR 23951) and the Phase 2 Rule (November 29, 
2005; 70 FR 71612) under the provisions of the Paperwork Reduction Act, 
44 U.S.C. 3501 et seq. and has assigned OMB Control Number 2060-0594. 
The OMB control numbers

[[Page 51967]]

for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an Agency 
to prepare a regulatory flexibility analysis of any regulation subject 
to notice and comment rulemaking requirements under the Administrative 
Procedures Act or any other statute unless the Agency certifies the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of this rule on small 
entities, small entity is defined as: (1) A small business that is a 
small industrial entity as defined in the U.S. Small Business 
Administration (SBA) regulations at 13 CFR part 201; (2) a small 
government jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less than 
50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impact of this proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This 
proposed rule will not impose any requirements on small entities. 
Rather, we are issuing this rule to give additional clarity to States 
on the transition from 1-hour to 8-hour major NSR requirements. We 
continue to be interested in the potential impacts of the proposed rule 
on small entities and welcome comments on issues related to such 
impacts.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandate under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (URMA), 2 U.S.C. 
1531-1538 for State, local, and Tribal governments and the private 
sector. The action imposes no enforceable duty on any State, local or 
Tribal governments or the private sector. Therefore, this action is 
subject to the requirements of section 202 and 205 of the UMRA.
    This action is also not subject to the requirements of section 203 
of UMRA because is contains no regulatory requirements that might 
significantly or uniquely affect small governments. This action 
proposes to revise the rule for implementing the 1997 8-hour ozone 
NAAQS to address how nonattainment major NSR requirements associated 
with the former 1-hour ozone NAAQS should apply under the anti-
backsliding provisions of the implementation rule. Also proposed is a 
framework for allowing States to remove and/or no longer implement the 
1-hour major NSR requirements when certain prescribed conditions are 
met. This proposed rule responds to the ruling by the U.S. Court of 
Appeals for the District of Columbia Circuit that the 1-hour major NSR 
program, as it applies to areas that failed to attain the 1-hour 
standard by the required date, is a required control to prevent 
backsliding.

E. Executive Order 13132--Federalism

    This proposed rule does not have federalism implications. It will 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. This action sets forth EPA's 
proposed rule for addressing portions of the partial vacatur of EPA's 
Phase 1 Rule for implementation of the 1997 8-Hour ozone NAAQS. Thus, 
Executive Order 13132 does not apply to this proposed rule.
    In the spirit of Executive Order 13121 and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comments on this proposed rule 
from State and local officials.

F. Executive Order 13175--Consultation and Coordination With Indian 
Tribal Governments

    This action does not have Tribal implications as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). It does not have 
a substantial direct effect on one or more Indian Tribes, since no 
Tribe has to develop a SIP under this proposal. Furthermore, this 
proposed rule does not affect the relationship or distribution of power 
and responsibilities between the Federal Government and Indian Tribes. 
The CAA and the Tribal Air Rule establish the relationship of the 
Federal Government and Tribes in developing plans to attain the NAAQS, 
and these proposed revisions to the regulations do nothing to modify 
that relationship. Thus, Executive Order 13175 does not apply to this 
action.
    EPA specifically solicits additional comment on the proposed rule 
from Tribal officials.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    This action is not subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997) because it is not economically significant as defined 
in Executive Order 12866, and because the agency does not believe the 
environmental health or safety risks addressed by this action present a 
disproportional risk to children. This action sets forth EPA's proposed 
rule for addressing portions of the partial vacatur of EPA's Phase 1 
Rule for implementation of the 1997 8-Hour ozone NAAQS. The public is 
invited to submit comments or identify peer-reviewed studies and data 
that assess effects of this proposed action.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This proposed rule is not a ``significant energy action'' as 
defined in Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001)) because it is not likely to have a significant adverse 
effect on the supply, distribution, or use of energy. This action sets 
forth EPA's proposed rule for addressing portions of the partial 
vacatur of EPA's Phase 1 Rule for implementation of the 1997 8-Hour 
ozone NAAQS.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This proposed rule does not involve technical standards. Therefore, 
EPA is not considering the use of any voluntary consensus standards.

[[Page 51968]]

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this proposed rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. The proposed revisions implement a previously promulgated 
health-based Federal standard (the 8-hour ozone NAAQS) that is designed 
to protect all segments of the general population. As such, they do not 
adversely affect the health or safety of minority or low income 
populations and are designed to protect and enhance the health and 
safety of these and other populations.

K. Determination Under Section 307(d)

    Pursuant to section 307(d)(1)(V) of the CAA, the Administrator 
determines that this action is subject to the provisions of section 
307(d). Section 307(d)(1)(V) provides that the provisions of section 
307(d) apply to ``such other actions as the Administrator may 
determine.''

List of Subjects in 40 CFR Part 51

    Environmental protection, Air pollution control, Intergovernmental 
relations, Ozone, Transportation, Volatile organic compounds.

    Dated: August 18, 2010.
Lisa P. Jackson,
Administrator.
    For the reasons stated in the preamble, title 40, chapter I of the 
Code of Federal Regulations is proposed to be amended as follows:

PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF 
IMPLEMENTATION PLANS

    1. The authority citation for part 51 continues to read as follows:

    Authority: 23 U.S.C. 101; 42 U.S.C. 7401- 7671q.

    2. Section 51.905 is amended by revising paragraph (a)(3)(i), and 
by adding a new paragraph (g) to read as follows:

Sec.  51.905  How do areas transition from the 1-hour NAAQS to the 8-
hour NAAQS and what are the anti-backsliding provisions?

    (a) * * *
    (3) * * *
    (i) Obligations in an approved SIP. For an area that is designated 
8-hour NAAQS attainment/1-hour NAAQS nonattainment, the State may 
request that obligations under the applicable requirements of Sec.  
51.900(f) be shifted to contingency measures, consistent with sections 
110(l) and 193 of the CAA, after revocation of the 1-hour NAAQS; 
however, the State cannot remove the obligations from the SIP. For such 
areas, the State may request that the nonattainment major NSR 
provisions that applied based on the area's designation and 
classification under the 1-hour NAAQS be removed from the SIP on or 
after the date of revocation of the 1-hour NAAQS and need not be 
shifted to contingency measures.
* * * * *
    (g) What other requirements for the 1-hour standard apply? (1) The 
requirements for nonattainment new source review that applied pursuant 
to sections 172(c)(5), 173, and 182 of the Clean Air Act based on the 
area's classification under the 1-hour NAAQS continue to be required 
elements of an approvable implementation plan for any ozone 
nonattainment area that was designated nonattainment for the 1-hour 
NAAQS at the time of designation as ozone nonattainment for the 8-hour 
NAAQS. Notwithstanding the revocation of the 1-hour NAAQS, the 
designation and classification of the area for the 1-hour standard as 
provided in 40 CFR Part 81 shall apply for determining the applicable 
1-hour NSR obligation for an area. These requirements remain required 
elements of the implementation plan until such time as the area is 
redesignated to attainment for the 1997 8-hour attainment area for the 
ozone NAAQS pursuant to Clean Air Act section 107(d)(3)(E).
    (2) Notwithstanding revocation of the 1-hour ozone NAAQS, States 
with areas designated nonattainment for the 1-hour ozone NAAQS and 
classified as severe or extreme for that standard as provided in 40 CFR 
Part 81 remain subject to the obligation to adopt programs under 
sections 181(b)(4) of the CAA for the 1-hour ozone NAAQS.
    3. Section 51.914 is revised to read as follows:

Sec.  51.914  What new source review requirements apply for ozone 
nonattainment areas?

    (a) The requirements for new source review for the 8-hour ozone 
standard are located in Sec.  51.165.
    (b) For areas designated nonattainment for the 1-hour ozone 
standard as of the effective date of designation for the 8-hour 
standard, values for applicability thresholds and offset requirements 
as required under Sec.  51.165 shall be determined by the 1-hour 
nonattainment classifications listed for those areas in 40 CFR Part 81, 
Subpart C. The 1-hour applicability thresholds and offset requirements 
shall be retained until such time as the area is redesignated to 
attainment for the 1997 8-hour ozone NAAQS under section 107(d)(3)(E) 
of the Clean Air Act, at which point the State may request their 
removal.
    4. Appendix S to part 51 is amended by adding section VII. to read 
as follows:

Appendix S to Part 51--Emission Offset Interpretative Ruling

* * * * *

VII. Anti-Backsliding Measures

    1-hour ozone NAAQS nonattainment area new source review.
    Any 8-hour ozone nonattainment area that was designated 
nonattainment for the 1-hour ozone NAAQS at the time of designation 
for the 8-hour NAAQS must continue to apply new source review 
requirements consistent with that area's 1-hour classification, as 
listed in 40 CFR Part 81, Subpart C. These requirements remain 
applicable until such time as the 8-hour nonattainment area is 
redesignated to attainment for the 8-hour ozone NAAQS standard under 
107(d)(3)(E) of the Clean Air Act.
[FR Doc. 2010-20992 Filed 8-23-10; 8:45 am]
BILLING CODE 6560-50-P
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