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

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 50 and 51

[EPA-HO-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-HQOAR-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.

e Hand Delivery: Air and Radiation

Docket and Information Center,

Attention Docket ID No. EPA-HQOAR-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-HQ7-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://

wwv.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 I 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

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

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 CBL 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

corhplete 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, relnember

to:

* Identify the rulemaking by docket

number and other identifying

information (subject heading, Federal

Register date and page number).

9 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.

e Explain why you agree or disagree;

suggest alternatives and substitute .

language for your requested changes.

e 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.

e Explain your views as clearly as

possible, avoiding the use of profanity

or perspnal 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/naaqsl

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/ttnl

naaqslozone/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/naaqsl

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 Reeister/Vol. 74, No. il/Friday, January 16, 2009/Proposed Rules

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 I 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.' 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 I 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

IThree petitions for reconsideration of the Phase

1 Rule were filed by: (1) Earthiustice 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.

'70 FR 30592 (May 26, 2005).

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.)

11. 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

3 The Court's June clarification confirmed that the

December 2006 decision was not intended to

establish a requirement that areas continue to

demonstrate conformity for the 1-hour ozone

standard for anti-backsliding purposes.

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).

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

13 of the 84 subpart 1 areas and one subpart 2

area were designated as "Early Action Compact

Areas" with a deferred effective date for their

nonattainment designation.

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2. Effect of Court Ruling

In its decisions on the Phase 1 rule,

the Court vacated the provisions that

subjected any 8-hour ozone

nonattainment areas to coverage under

subpart 1. As the basis for its decision,

the Court first agreed that Congress

mandated that certain areas be subject to

subpart 2, but ruled that our use of

0.121 ppm 1-hour design value as a

dividing line was incorrect, holding that

the Supreme Court had required use of

0.09 ppm on the 8-hour scale as the

level for determining which areas

Congress mandated would be subject to

subpart 2.6 Furthermore, although

recognizing that Congress did not

mandate that areas with an 8-hour

design value be subject to subpart 2, the

Court rejected as unreasonable our

rationale for placing certain areas in

subpart 1 instead of subpart 2. The

Court vacated the Phase 1 rule to the

extent it placed certain areas solely

under the implementation provisions of

subpart 1. Thus, a rule revision is

necesgary 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

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 a hour

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

the standard was strengthened and not to the extent

that the measurement technique merely changed

* * * We therefore hold that the 2004 Rule violates

the Act insofar as it subjects areas with 8-hour

ozone in excess of 0.09 ppm to Subpart 1. We

further hold that EPA's interpretation of the Act in

a manner to maximize its own discretion is

unreasonable because the clear intent of Congress

in enacting the 1990 Amendments was to the

contrary."

7 We note that areas subject to subpart 2 are also

subject to subpart 1 to the extent subpart I specifies

requirements that are not superseded by more

specific obligations under subpart 2.

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 classificationwithin 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

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 I 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.

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 I that have already been

redesignated to attainment will not be

affected by this rule, including the 13

EAC areas noted above." 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

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

of the EAC program did not successfully complete

all milestones and was subsequently designated

nonattainment under subpart 1. Thus, this area

would be treated the same as all areas classified

under subpart 1 under the original provisions of the

Phase 1 Rule.

11 See, 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 Rurat

Transport Area. This is based on the 1999 definition

of Metropolitan Statistical Areas; neither of the

above two areas is in or adjacent to an MSA as

defined by the Office of Management and Budget

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

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

nonattainment designation (3 years for has passed, EPA proposes that any area Areas classified marginal or moderate

marginal and 6 years for moderate). For that would be classified under the would be required to meet the marginal

all. areas other than Denver, the effective proposal as marginal, and that did not or moderate area requirements of CAA

date of designation for the 8-hour attain by June 15, 2007, or that does not section 182(a) and/or (b). Moderate area

standard was June 15, 2004. Thus, meet the criteria for an attainment date requirements include the requirements

marginal nonattainment areas would extension under CAA section for the marginal classification. Briefly,

have a maximum statutory attainment 181(a)(5)(B) and 40 CFR 51.907, would these requirements are depicted in

date of June 15, 2007 and moderate be reclassified immediately as moderate Table 1:

areas a maximum date of June 15, 2010. under this rule.

Since the marginal area attainment date

TABLE 1

Subpart 2 a

Element

Classification Requirement

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

For all areas, attainment should occur as expeditiously

as practicable, but no later than specified timeframe.

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

major source applicability.

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

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

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

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

treme, doesn't meet attainment date.

NOx control for RACT ...................................................... Moderate & above; all Requirements under this subpart for major stationary

areas in Ozone Transport VOC sources (NSR & RACT) also apply to all major

Commission. 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 NO× stationary sources.

RACT ................................................................................ M arginal & 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.

aNote 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 super- seded 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 applica- ble to subpart 2 areas (but that are not addressed in subpart 2) include reasonably available contro 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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Federal Register / Vol. 74, No. 11/Friday, January 16, 2009/Proposed Rules

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 solieits

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(fl). 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

'$Memorandum of March 19, 2007 from William

L. Wehrum to EPA Regional Administrators, re:

"Impacts of the Court Decision on the Phase 1

Ozone Implementation Rule" (response to Question

2) and memorandum of June 15, 2007 from Robert

J. Meyers to Regional Administrators re: "Decision

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

Columbia Circuit on our Petition for Rehearing of

the Phase I Rule to Implement the 8-Hour Ozone

NAAQS" (Implications for Subpart 1 Areas). 14 Note that if the area is nonattainment for the

1997 8-hour standard, it is subject to nonattainment

NSR, contingency measures and (if severe or

extreme) the section 185 penalty fee provision for

that 1997 NAAQS.

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 15 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

15 As noted above in a previous footnote, the

Court's June 2007 clarification confirms that the

December 2006 decision was not intended to

establish a requirement'that areas continue to

demonstrate conformity under the 1-hour ozone

standard for anti-backsliding purposes. Therefore,

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

of the Phase 1 implementation rule. Section 40 CFR

51.905(e)(3) establishes that conformity

determinations for the 1-hour standard are not

required beginning 1 year after the effective date of

the revocation of the 1-hour standard and any state

conformity provisions in an applicable SIP that

require 1-hour ozone conformity determinations are

no longer federally enforceable. This pro% ision 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 nonattalnment

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.

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

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 determinds

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 ifEPA 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

" This applies even if the area did not attain by

its attainment date: however, the CAA requires EPA

in these cases to make a finding of failure to attain

by the attainment date and either reclassify the area

or apply other requirements [sach as section 1851

as specified for the area's classification.

1

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

CFR. 51.918, is being challenged in the context of

the 8-hour ozone standard in the Phase 2 Rule

ozone litigation pending in the DC Circuit. NRDC

v. EPA, No. 05-1045 [DC Cir.).

that these obligations be shifted to

contingency measures, consistent with

sections 110(1) 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 'ffect on the status of

the 1-hour ozone standard,1 8 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

1 The 1-hour standard was revoked for most

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

effective date of designation. For the 13 EAC areas

designated attainment with an effective date of

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

April 15, 2009, and for the Denver EAC area. w hich

was designated nonattainment effective November

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

November 20, 2008.

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 govermnents. 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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Federal Register/Vol. 74, No. i/Friday, January 16, 2009/Proposed Rules

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 Atandards.

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

2001-2003 2004-2006 2005-2007

Current nonattainment areas not classified under phase 1 rule, as 8-hour ozone Proposed subpart 2 8-hour ozone 8-hour ozone vacated by the courta design value classification design value design value

ppm ppm ppm

Albany-Schenectady-Troy, NY e ........................................................ 0.087 Marginal .................... 0.078 0.079

Allegan Co, M1 ................................................................................... 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, CA e ......................................................................................... 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, PAO ................................................................................ 0.089 Marginal ..................... 0.079 0.080

Haywood and Swain Cos (Great Smoky NP), NCO .......................... 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),CA c ........................... 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), CA e .......................................................... 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 non- attainment 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 NAAOS, 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). d Essex Co (the top of Whiteface Mtn), NY, and Door County, WI, would be eligible for consideration under CAA section 182(h) as Rural

Transport Areas. This is based on the 1999 definition of Metropolitan Statistical Areas; neither of the above two areas is in or adjacent to an MSA as defined by the Office of Management and Budget (OMB) in 1999 (June 30, 1999; 64 FR 35548). Essex Co does not have a design value for the 2005-2007 period (indicated by NAV (not available)).

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 (0(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).

2944
Federal Register/Vol. 74, No. 11/Friday, January 16, 2009/Proposed Rules

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 6560-60-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. e 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 Includet 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?

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