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 QualityStandard: Revision on Subpart 1Area 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 EPAproposes to revise the rule for implementing the 1997 8- hour ozone national ambient air quality standard (NAAQS) forseveral ofthe limitedportions ofthe rule vacated by the U.S. Circuit Court ofAppeals forthe District ofColumbia. The proposal addresses the classification system for the subset ofinitial 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 failureto attain or make reasonable progress toward attainment ofthe 1- hour standard should apply under the anti-backsliding provisions ofthe implementation rule. Inaddition, the proposal removes language relating to the vacated provisions oftherule that provided exemptions fromthe 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, thisproposal includes the deletion ofan obsolete provision in the 1-hour ozone standard itself. DATES: Comments.Comments mustbe received on or before February 17, 2009.

PublicHearing. Ifanyone contacts us requesting a public hearingby January 26, 2009, we will hold a public hearing approximately 30 days after publication inthe Federal Register. Additional information about the hearing would be published in a subsequent Federal Register notice. ADDRESSES: Submit your comments, identified by Docket

### IDNo. EPA-HQOAR-2007-0956, by one ofthe 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:Airand Radiation Docket and Information Center, Attention Docket ID No. EPA-HQ-OAR-2007-0956, Environmental Protection Agency, 1301 Constitution Ave., NW., Washington, DC 20460. MailCode:2822T. Please include two copies ifpossible.

e HandDelivery:Air and Radiation Docket and Information Center, Attention Docket ID No.EPA-HQOAR-2007-0956, Environmental Protection Agency inthe 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:Directyour comments to DocketID No.EPA-HQ7-OAR-2007- 0956. The EPA's policy is that all comments received willbe included in the public docketwithout 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. Donot submit information that you consider to be CBI orotherwise protected through www.regulations.gov,

ore-mail. The www.regulations.govWeb site is an "anonymous access" system, whichmeans EPA will not know your identity orcontact information unless you provide it in the bodyofyour comment. Ifyou send an e-mail comment directly to EPA without going through www.regulations.gov,your email address willbe automatically captured and included aspart ofthe comment that is placed inthe public docket and made available on the Internet. Ifyou submit an electronic comment, EPA recommends that you include your name and other contact information inthe body ofyour comment and with any disk or CD-ROM you submit. IfEPA 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 ofencryption, and be free ofany defects

or viruses. For additional information about EPA's public docket, visittheEPA 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 orother information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is notplaced on the Internet andwill be publicly available only in hard copy form. Publicly available docket materials are available either electronically in www.regulations.govor inhard copy at the Air and Radiation Docket and Information Centerin 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 forthe Public Reading Room is (202) 566-1744.

PublicHearing: Ifa hearing is held, it willbe held atthe 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 ofAir 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 orby e-mail atsilvasi.john@epa.gov.For information

on the 1-hour contingency measures issue discussed inthis notice, contact Ms. Denise Gerth, Office ofAir Quality Planning and Standards, (C504-03), U.S. EPA, Research Triangle Park, North Carolina 27711, phonenumber (919) 541-5550 or bye-mail at gerth.denise@epa.gov, fax number (919) 541-0824. To request apublic hearing, contact Mrs. Pamela Long, Office ofAir Quality Planning and Standards, (C504- 03), U.S. EPA, Research Triangle Park, North Carolina 27711, telephone number (919) 541-0641 orby e-mail at long.pam@epa.gov,fax number (919) 541-5509.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does ThisActionApply toMe?

Entities potentially affected directly by the subjectrule for this action include state, local, and Tribal governments. Entities potentially 

### 2936Federal 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. WhatShouldI Consider asIPrepare My Comments forEPA?
1. SubmittingCBL Donot submit this information to EPA through www.regulations.govor e-mail. Clearly mark the part orall ofthe information that you claim to be CBI. For CBI information on a disk or CD-ROM that youmail to EPA, mark the outside ofthe 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 ofthe comment that does not contain the information claimed to be CBImust be submitted forinclusion in the public docket. Information so marked will notbe disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips forPreparing Your Comments. When submitting comments, relnember to:* Identify the rulemaking by docket number and other identifying information (subjectheading, Federal Register date andpage number).

9 Follow directions-The agency may ask youto respond to specific questions

or organize comments by referencing a Code ofFederal 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 datathat youused.

* Ifyou 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 submityour comments by the comment period deadline identified.
C. Where CanI Geta CopyofThis DocumentandOtherRelated Information?

In addition to being available inthe docket, an electronic copy ofthis notice is also available on theWorld Wide Web. A copy of this notice will be posted at http://www.epa.gov/ttn/naaqsl ozone/o3imp8hr/.
D. WhatInformationShouldIKnow About thePublicHearing?

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 5p.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 athttp:// www.epa.gov/ttn/naaqs/ozone/ o3imp8hr/and to learn ifa hearing will be held. Ifa public hearing is held onthis notice, it willbe held atthe EPA, Building C, 109T.W. Alexander Drive, Research Triangle Park, NC 27709. Because the hearing willbe 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 athttp://www.epa.gov/ttnl naaqslozone/o3imp8hr/ for information and updates concerning the public hearing.

Ifheld, the public hearing willbegin at 10 a.m. and end 1hour after the last registered speaker has spoken. The hearing willbe limited to the subject matter ofthis document. Oral testimony willbe limited to 5 minutes. The EPA encourages commenters to provide written versions oftheir oraltestimony either electronically (on computer disk

orCD-ROM) or in paper copy. The list ofspeakers willbe posted onEPA's Web site athttp://www.epa.gov/ttn/naaqsl ozone/o3imp8hr/.Verbatim transcripts and written statements will be included inthe rulemaking docket:

A public hearing would provide interested parties the opportunity to present data, views, orarguments concerning issues addressed in this notice. The EPA may ask clarifying questions during the oral presentations, but would notrespond to the presentations or comments at that time. Written statements and supporting information submitted during the comment period willbe considered with the same weight as any oral comments and supporting information presented ata public hearing.

E.HowIs ThisDocument Organized?

The Information Presented inThis Document is Organized asFollows I. General Information A. Does This Action Apply to Me? B. What Should I Consider asI Prepare My

Comments for EPA? C. Where Can IGet a Copy ofThis

Document and Other Related Information? D. What Information Should IKnow 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 ofSubpart 1 8-Hour

Ozone Nonattainment Areas 1.CurrentRule 2.Effect ofCourt Ruling 3. Proposed Rule 4. Consequences ofProposed Rule B. Anti-Backsliding Under 1-Hour Ozone

Standard-In General (Also Discussing NSR and Section 185 Penalty Fees) C. Contingency Measures 1: Phase 1Rule 2. Effect ofCourt Ruling 3. Proposed Rule D. Deletion ofObsolete 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, orUse 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 Ato Preamble. Application of

the Proposed Classification Scheme

II. What Is the Background for This Proposal?

A. Litigationon EPA's8-HourOzone NAAQS ImplementationRule (40 CFR Part 51, Sections51.900 Through51..918 (CollectivelySubpartX))

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- hourNAAQS; revocation of the 1-hour NAAQS (i.e., when the 1-hour NAAQS will no longer apply); anti-backsliding principles for 1-hour ozone 

### 2937-2938 

### Federal Reeister/Vol. 74, No. il/Friday, January 16, 2009/Proposed Rules
requirements to ensure continued progress toward attainment ofthe 1997 8-hour ozone NAAQS; attainment dates; and the timing ofemissions reductions needed for attainment.

Following publication ofthe April 30, 2004 finalPhase I Rule, the Administrator received three petitions, pursuant to section 307(b)(7)(B) ofthe CAA requesting reconsideration ofa number ofaspects ofthe finalrule.' In final rulemaking on one ofthese petitions, EPA further clarified the implementation rule in tworespects: (a) Section 185 penalty fees under the 1- hour standard would no longer be applicable after revocation ofthe 1-hour standard, and (b)the effective date of designations under the 1997 8-hour standard (i.e., foralmost 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

nolonger apply once the 1-hour standard was revoked. OnApril 4, 2005 (70 FR 17018), we published a proposed ruleto take comment on the issue of whether we should interpret the Actto require areas to retain majorNSR requirements that apply to certain 1- hour ozone nonattainment areas in implementing the 1997 8-hour standard. We took final action onthe NSR issues

onJune 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 inits entirety. South Coast Air QualityManagement District,etal., v.EPA, 472 F.3d 882 (D.C.Cir. 2006) reh'gdenied489F.3d 1245 (clarifyingthatthevacaturwas limitedto theissueson which the court grantedthepetitions forreview). The EPA requested rehearing and clarification of the ruling and onJune 8, 2007, theCourt clarified that it was

IThree petitions forreconsideration ofthe Phase 1Rule were filed by: (1)Earthiustice onbehalf of the American LungAssociation, Environmental Defense, Natural Resources Defense Council,Sierra Club, Clean Air Task Force, Conservation Law Foundation, and Southern Alliance forClean Energy; (2) the National Petrochemical and Refiners Association and theNational 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 ofCommerce.

'70 FR 30592 (May 26, 2005). vacating the rule only to the extent that ithad upheld petitioners' challenges. Thus, the following provisions ofthe Phase 1rule were vacated:

* The provisions that placed 8-hour

ozone nonattainment areas under subpart 1,part D, title I ofthe CAA instead ofsubpart 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 ofthe 1-hour standard. 3

B. ObsoleteProvisionin 1-HourOzone Standard(40 CFRPart50)

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

areahad 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 ofareas under the '1997 8-hour ozone standard. However, we neglected to remove paragraph (c) which was no longer necessary asthe 8-hour standard was no longer subject to legal challenge and the standard had been upheld and was enforceable. AmericanTruckingAssoc.

v.EPA 283 F.3d 355 (DCCir. 2002) (resolving all remaining legal challenges
to the 8-hour ozone standard and upholding EPA's rule establishing that standard.)
11. ThisAction

A. ReclassificationofSubpart18-Hour OzoneNonattainment Areas
1.Current Rule

In thePhase 1 implementation rule,
EPA established which planning

3The Court's June clarification confirmed that the December 2006 decision was not intended to establish arequirement that areascontinue to demonstrate conformity forthe 1-hour ozone standard for anti-backsliding purposes.

4In addition, inJune 2003, we stayed our authorityto apply the revocation rule pending our reconsideration in this rulemaking ofthe basis for revocation. (68 FR38160, June 26, 2003). requirements ofpartD oftitle I ofthe Actwould apply to areas forpurposes ofimplementing the 8-hour ozone standard. 40 CFR 51.902. ("Which classification and nonattainment area planning provisions ofthe 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 permillion (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 ofthe CAA as interpreted in40 CFR 51.903(a) for
purposes ofthe 8-hour NAAQS, and would be subject tothe requirements of CAA title I, partD, 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 interms of 1-hour ozone design values. The preamble to the Phase 1 Rule provides the rationale and procedure for that translation. (See69 FR 23958 et seq.) Section 181 in subpart 2provides for specific classifications ofeach area by the magnitude ofthe ozone problem, providing shorter time periods for attainment for lower classifications and longer time periods forhigher classifications. Higher classified areas also face additional specified control requirements than lower classified

areas. A summary listing ofthe subpart 2 requirements by classification compared to subpart 1requirements appeared inthe proposed 8-hour ozone implementation rule. (See68 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 atthe time of 8-hour NAAQS nonattainment designation would be covered under section 172(a)(1) ofthe CAA and would be subject to the requirements ofCAA title I, partD, 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 subjectto subpart 2under the Phase 1 Rule were classified by operation oflaw at that time. Ofthe 126 areas designated nonattainment, 84 were classified as under subpart 1,and the remaining 42

as under subpart 2. 5

13 ofthe 84 subpart 1areas and one subpart 2

area were designated as "Early ActionCompact Areas" with a deferred effective date fortheir nonattainment designation. Federal Re ister/Vol. 74, No. 11/Friday, January 16, 2009/Proposed Rules 2938Federal Register/Vol. 74, No. 11/Friday, January 16, 2009/Proposed Rules

2.Effect ofCourt Ruling

Inits decisions on the Phase 1rule, the Court vacated the provisions that subjected any 8-hour ozone nonattainment areas tocoverage 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 asa dividing line was incorrect, holding that the Supreme Court had required use of 0.09 ppm on the 8-hour scale asthe level fordetermining 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 subjectto subpart 2, the Courtrejected asunreasonable our rationale forplacing certain areas in subpart 1 instead ofsubpart 2.The Courtvacated the Phase 1ruleto the extent itplaced certain areas solely under the implementation provisions of subpart 1.Thus, arule revision is necesgary to address whichprovisions ofthe 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 willbe classified under and subjectto the nonattainment planning requirements ofsubpart 2. We would modify the regulatory textto

remove current §51.902(b) (which was vacated by the Court), which placed certain areas only under subpart 1.We considered the possibility ofproposing 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 ofnot further delaying implementation ofthe 8-hour

ozone NAAQS that was established over

6

. * the gap identified in Whitman affords EPA discretion onlyto 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, thegap extends only tothe extent that the standard was strengthened and not to the extent that themeasurement technique merely changed * * * We therefore hold that the 2004 Rule violates the Act insofar as it subjects areas with 8-hour

ozone inexcess of0.09 ppm to Subpart 1. We further hold that EPA's interpretation ofthe Act in

a mannerto maximize its own discretion is unreasonable because the clear intent ofCongress in enacting the 1990 Amendments was tothe contrary."

7We note that areas subject to subpart 2 are also subject to subpart 1 to theextent subpart I specifies requirements that are not superseded bymore specific obligations under subpart 2. 10 years ago. 8 However, we solicit
comment on this part ofthis proposal.

Because these are the initial classifications forthese 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 (establishedby 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 oflaw" based

on the "design value" ofthe areas and in accordance withtable 1 ofthat section. Thus, this language specifies that the area will be classified based on the design value that existed forthe area "at the time" ofdesignation. Areas were designated nonattainment in 2004, based on design values derived from data from 2001-2003. We are soliciting
comment on the approach ofclassifying 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 ofthe method EPA used to treat these areas under subpart 1 only, EPA proposes that the provision ofCAA 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 forthe newlyclassified areas that were originally covered under subpart 1 in a manner similar to the way described forthe original round ofsubpart 2 classifications. 9 This process is described at 69 FR 23863 et seq. (April 30, 2004).

Ofthe original 84 subpart 1 areas designated in the April 30, 2004 rulemaking, 13 areas successfully completed participation in the Early

8As the court made clearinits decision on rehearing, the CAA does not mandatecoverage under subpart 2of-allareas designated nonattainment foran ozone NAAQS. AsEPAmoves forward to developan implementation strategy for thenew 2007 ozoneNAAQS, we willconsider whether subpart I alone might apply in some areas forpurposes ofimplementing that NAAQS.

9Note, however, that if aStaterequests a reclassification from moderate to marginal and the attainment date formarginal areas haspassed and the area is violatingthe 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 andprogress toward attainment ofthe 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 atthis time, EPA reserves the right to propose to coverfuture

ozone nonattainment areas under titleI, 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 1in 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. ARural Transport Area would have to only meet requirements ofa marginal area. 4. Consequences ofProposed Rule

Areas originally covered under subpart I that have already been redesignated to attainment will not be affected bythis rule, including the 13 EAC areas noted above." Appendix A provides a listingof 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 ofthese 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 afterthe effective date of the

10One area (Denver, CO) that was originally part oftheEAC program did not successfully complete all milestones and was subsequently designated nonattainment under subpart 1. Thus, this area would be treated thesame as allareas classified under subpart 1 under the original provisions ofthe Phase 1 Rule.

11See, e.g. 73 FR 11558 (col. 2) (March 4, 2008), together with e.g., 73 FR 1166 (col 3) (January 8, 2008).

12Notethat Essex Co (thetop ofWhiteface Mtn), NY, and DoorCounty, WI wouldbe eligible for consideration under CAA section 182(h) as a Rurat Transport Area.This isbased on the 1999 definition ofMetropolitan Statistical Areas; neither ofthe above two areas is in or adjacent to an MSA as defined by theOffice ofManagement and Budget (OMB) in 1999 (June30, 1999; 64 FR 35548).

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

nonattainment designation (3years for has passed, EPA proposes that any area Areas classified marginal or moderate marginal and 6 years for moderate). For that wouldbe 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 ofCAA date ofdesignation forthe 8-hour attain byJune 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 ofJune 15, 2007 and moderate bereclassified immediately as moderate Table 1:

areas a maximum date ofJune 15, 2010. under this rule. Since the marginal area attainment date

TABLE 1 Subpart 2a Element Classification Requirement

Attainment Dates

.............................................................. Marginal

.............................. 3years from CAA Amendments enactment. For all areas, attainment should occur as expeditiously

as practicable, but no laterthan specified timeframe. Moderate

............................ 6years from CAA Amendments enactment. Reasonable Further Progress (RFP)

................ Marginal

............... None. Moderate

................ : ........... 15% VOC reduction from baseline within 6years of enactment. Attainment demonstration submission

.............................. Marginal

.............................. None. Moderate

.............. Due 3years 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 exceptsevere &.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 inOzone Transport VOC sources (NSR &RACT) also apply to all major Commission. NOx sources, unless EPA approves NOxwaiver. Emission inventory

................. ..................................... All

................... Comprehensive emissions inventory within 2 years of enactment; update every 3 years (until area attains). Provision for submissionto state of annual emissions statementsfrom VOC and NO× stationary sources. RACT

................................................................................ M arginal &above

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

.............. RACT for all Control Techniques Guidelines sources andall 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 orattain. aNote that subpart 1requirements 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 inplace of the more general requirementfor "reasonable further progress" under subpart 1).,Subpart 1requirements thatare also applica- ble to subpart 2 areas (but that are not addressed insubpart 2) include reasonably available contro measures (RACM) requirement and transportation and general conformity requirements.

With respect to transportation conformity requirements, current transportation plan andtransportation improvement program conformity determinations for the 1997 8-hour

ozone standard will remain valid, and

are not impacted bythis 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, nonew conformity deadline would be triggered in the subject areas after their classification under subpart 2. Nonattainment areas that are classified as marginal ormoderate under Subpart 2 wouldcontinue to make future conformity determinations according to the applicable requirements of40 CFR 93.109(d) and (e). EPA notes that any
new moderate areas that continue tobe required to use the interim emissions tests willbe required to meet additional testrequirements that do notapply to marginal areas (40 CFR93.119(b)(1)).

The Phase 1 Rule provided that states must submit the major SIP elements -for the subpart 1 areas nolater thanJune 15, 2007. For areas classified as moderate, EPA also provided a submission date ofJune 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 afinal rule classifying the areas. The EPA believes this is an appropriate and reasonable amount oftime given the attainment dates that will apply to these

areas andthe fact that the areas should have made significant progress toward meeting these requirements based on the obligations that applied before the 

### 2940Federal Register/Vol. 74, No. 11/Friday, January 16, 2009/Proposed Rules

subpart 1 classification provision ofthe Phase 1rule 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 alreadyhad ample opportunity to complete the technical work to support development ofthese major SIP elements prior to now. Also, EPA has encouraged states to continueplanning for clean air in the prior subpart 1

areas. 13 Therefore, EPA believes one year from the date offinal rule should be sufficient time for states to submit these SIPs. However, EPA solieits comment on this aspect of the proposal.
B. Anti-BackslidingUnder1-Hour Ozone Standard-InGeneral(Also DiscussingNSR andSection 185Penalty 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 ofthe 1- hour ozone requirements as "applicable requirements" (defined in40 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 ofits 8-hour designation (for most areas, June 15, 2004).

Section 51.905(b) provides that a state remains subjectto 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 ifthe area is redesignated to attainment forthe 8- hourNAAQS, butmust 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 notpart of the list ofanti-backsliding requirements. These include 1-hour NSR, section 185 penalty fees, and 1-hour contingency

measures forfailure to attain or make reasonable progress toward attainment ofthe 1-hour NAAQS. 14 The Court

'$Memorandum ofMarch 19, 2007 from William L.Wehrum to EPARegional Administrators, re: "Impacts oftheCourt Decision on the Phase 1 OzoneImplementation Rule" (response to Question 2) and memorandum ofJune 15, 2007 from Robert J.Meyers to Regional Administrators re: "Decision ofthe U.S. Court ofAppeals forthe District of Columbia Circuit on our Petition forRehearing of thePhase I Rule to Implement the 8-Hour Ozone NAAQS" (Implications for Subpart 1 Areas).

14Note that ifthe area is nonattainment for the
1997 8-hour standard, it is subject to nonattainment NSR, contingency measures and (ifsevere or extreme) thesection 185 penalty fee provision for that 1997NAAQS. 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 ofthe rule that provided exemptions from therequirements 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 aseparate proposed rule providing further guidance on how the section 15 fee provisions and the 1- hour NSR requirements apply as a result ofthe Court's vacatur. 15

In the following section, in response to the Courtvacatur, EPA proposes the

manner inwhich the 1-hour NAAQS contingency measure requirement applies as an anti-backsliding requirement.
C.ContingencyMeasures
1.Phase 1 Rule

The Phase 1Rule did notaddress anti-backsliding provisions related to sections 172(c)(9) and 182(c)(9) of the CAA, whichrequire nonattainment area SIPs to contain contingency measures that would be implemented ifan areas fails to attain orfails to make RFP toward attainment ofthe 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 afterthe 1-hour standard was revoked, areas that had not submitted 1-hour attainment

15As noted above in aprevious footnote, the Court's June 2007clarification 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) ofthe Phase 1 implementation rule. Section 40 CFR 51.905(e)(3) establishes that conformity determinations forthe 1-hour standard are not required beginning 1year afterthe effective date of the revocation ofthe 1-hour standard and any state conformity provisions in an applicable SIPthat require 1-hour ozone conformity determinations are
no longer federally enforceable. This pro% ision does
not require revision inlight oftheCourt's decision andclarification, because the Court did not require conformity determinations for the 1-hour standard, and existing regulations already implement the Court's holding that 8-hourozone nonattalnment andmaintenance 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 forthe area. Therefore, current transportation conformity-related regulations setforth in 40 CFR part 93 and 40 CFR 51.905(e)(3), and thegeneral conformity regulations in 40CFR part 93 are consistent with the Court's decision and clarification on the Phase 1 8-hour

ozone implementation rule and donot 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 inthe adopted SIP could submit a revisionto remove them from their SIP when the 1-hour standard was revoked.
2.Effect ofCourt 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 ofthe Phase 1 Rulethat waived thisrequirement 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 ormake RFP toward attainment ofthe 1-hour NAAQS and cannot remove section 172 or 182 contingency measures from their SIPs based on revocation ofthe 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
afailure to meet a 1-hour RFP milestone

orupon a failure-to attain the 1-hour standard bythe 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 theregulations. Furthermore, consistent withEPA'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 asapplicable requirements under §51.900(f).

In situations where an area attains the 1-hour NAAQS by its applicable attainment date, the areais 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 notbe required to implement the contingency measures for failure to attain the standard by its attainment date for purposes ofantibacksliding.

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 

### 2941Federal 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 inthe May 10, 1995 memorandum from John S. Seitz, Director, Office ofAir 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, ifEPA 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 asreasonably 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. Ifthe area subsequently violates the ozone NAAQS, EPA would initiate notice-and-comment rulemaking to withdraw the determination of attainment, which would result in reinstatement ofthe requirement for the state to submit such plans.

The Tenth, Seventh and Ninth Circuits have upheld EPA rulemakings applying the Clean Data Policy. See SierraClubv. EPA, 99 F. 3d 1551 (10th Cir. 1996); SierraClubv. EPA. 375 F.3d 537 (7th Cir. 2004) and Our Children's EarthFoundationv.EPA, No. 04-73032 (9th Cir. June 28, 2005) memorandum opinion. 17 See also the discussion and rulemakings cited inEPA's Phase 2, 8- Hour Ozone Implementation Rulemaking, 70 FR 71644-71646 (November 29, 2005), which codified the policy forthe 8-hour NAAQS.

Thus ifEPA makes a determination of attainment under the Clean DataPolicy, 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 asthe

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) untilthe 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 ifthe area did not attain by its attainment date: however, the CAA requires EPA in these cases to make a findingoffailure 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.

17The Clean Data Policy, as it is embodied in 40 CFR. 51.918, is being challenged in the context of the 8-hour ozone standard in thePhase 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 ofthe CAA; however, the state cannot remove the obligations from the SIP.
D.DeletionofObsolete 1-HourOzone StandardProvision

For the reasons stated above inthe background section concerning the obsolete nature of40 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 thetime the area was designated for the 8-hour standard.
IV. Statutory and Executive Order Reviews

A. Executive Order12866:Regulatory Planning andReview Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a significant regulatory action because it raises novel legal orpolicy issues arising out oflegal mandates. Accordingly, EPA submitted this action to the Office ofManagement and Budget (OMB) for review under EO 12866 and any changes made inresponse to OMB recommendations have been documented inthe docket forthis action.
B.Paperwork ReductionAct This action does not impose any new information collection burden. This action sets forth EPA's proposed rule for addressing portions ofthe partial vacatur ofEPA's Phase 1rulefor implementation ofthe 1997 8-hour

ozone NAAQS. However, the Office of Management and Budget (OMB) has previously approved the information collection requirements contained inthe existing Phase 1 Rule (April30, 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 forEPA's regulations in 40 CFR are listed in 40 CFRpart 9.
C.-Regulatory FlexibilityAct The Regulatory Flexibility Act (RFA) generally requires an Agency to prepare
aregulatory flexibility analysis of any regulation subject to notice and

1 The 1-hour standard was revoked for most

areas onJune 15, 2005. the date one-year after the effective dateofdesignation. Forthe 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 DenverEAC area. which

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 orany other statute unless the Agency certifies the rule will nothave

a significant economic impact on a substantial number ofsmall entities. Small entities include small businesses, small organizations, and small governmentaljurisdictions.

For purposes ofassessing the impacts ofthese proposed regulations revisions

on small entities, small entity is defined

as: (1)A small business that is a small industrial entity as defined inthe U.S. Small Business Administration (SBA) size standards. (See 13 CFR 121.); (2)A governmental jurisdiction that is a government of acity, county, town, school district or special district with a population ofless 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 ofthese proposed revisions to the regulations on small entities, I certify that this action will nothave a significant economic impact on a substantial number ofsmall entities. This proposal will notimpose any requirements on small entities.

We continue to be interested in the potential impacts ofthe proposed rule

on small entities and welcome comments on issuesrelated to such impacts.

D. UnfundedMandatesReformAct

This action contains no Federal mandate under the provisions ofTitle II ofthe Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for State, local, or tribal governments orthe 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 ofsection 202 and 205 ofthe UMRA.

This action is also not subject to the requirements ofsection 203 ofUMRA 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 Order13132-Federalism

Executive Order 13132, entitled "Federalism" (64 FR43255, August 10, 1999), requires EPA to develop an accountable process to ensure "meaningful and timely input by state 

### 2942Federal 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, onthe relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels ofgovernment."

This action does nothave Federalism implications. Itwill nothave substantial direct effects onthe states, on the relationship between the national government and the states, oron the distribution ofpower and responsibilities among the various levels ofgovernment, as specified in Executive Order 13132. This proposed rule, ifmade final, would restore provisions that existed under the 1-hour

ozone standard and that would have continued under the 1-hour standard had notEPA issued arevised 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 ofEPA'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 ofExecutive Order 13121 and consistent with EPA policyto promote communications between EPA and state and local governments, EPA is soliciting comments onthis proposal from state and local officials.
F.Executive Order13175-Consultation andCoordinationWith IndianTribal Governments

This action does not have Tribal implications as specified inExecutive 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.ofthe 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 Order13045:Protectionof ChildrenFromEnvironmental Health andSafetyRisks

EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only to thoseregulatory 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 SIPwill adequately attain and maintain the NAAQS and meet the obligations ofthe CAA. The NAAQS are promulgated to protect the health and welfare of sensitivepopulation, including children.However, EPA solicits comments on whether the proposed action would result inan adverse environmental effect that would have a disproportionate effect on children.

H. Executive Order13211:Actions That Significantly Affect EnergySupply, Distribution, orUse This action is not subject to Executive Order 13211 (66FR 28355 (May22, 2001)), because it is nota significant regulatory action under Executive Order 12866.
I.NationalTechnology Transfer AdvancementAct Section 12(d) ofthe 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 beinconsistent with applicable law orotherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed oradopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides notto use available and applicable voluntary

consensus standards.

This proposed rulemaking does not involve technical standards. Therefore, EPA is not considering the use ofany voluntary consensus Atandards.

J.Executive Order12898:Federal Actions ToAddressEnvironmental JusticeinMinorityPopulations 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 andpermitted bylaw, to make environmentaljustice part oftheir missionby identifying and addressing,

as appropriate, disproportionately high and adverse human health or environmental effects oftheir programs, policies, and activities on minority populations and low-income populations inthe United States.

EPA has determined that this proposed rule will not have disproportionately high and adverse human health orenvironmental effects

on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. "Theproposed revisions tothe regulations would,if promulgated revise procedures for states to follow in developing SIPsto attain the NAAQS, which are designed to protect all segments ofthe general populations. As such, they do not adversely affect the health or safety of minority orlow income populations and

are designed to protect and enhance the health and safety ofthese and other populations.

K.Determination UnderSection307(d)

Pursuant to sections 307(d)(1)(E) and 307(d)(1)(V) of the CAA, the Administrator determines that this action is subjectto the provisions of section 307(d). Section 307(d)(1)(V) provides that the provisions ofsection 307(d) apply to "such other actions as the Administrator may determine." Appendix A to Preamble. Application ofthe 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. 

### 2943Federal Register/Vol. 74, No. 11/Friday, January .16, 2009/Proposed Rules

2001-2003 2004-2006 2005-2007 Current nonattainment areas not classified under phase 1rule, 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, CAe ......................................................................................... 0.089 Marginal

..................... 0.084 0.084 Cincinnati-Hamilton, OH-KY-IN

.......................................................... 0.096 Moderate

................... 0.086 0.088 Clearfield & Indiana Cos, PAe

........................................................... 0.09 Marginal

..................... 0.077 0.080 Columbus, OH

................................................................................... 0.095 Moderate

................... 0.084 0.087 Denver-Boulder-Greeley-Ft. Collins-Love, CO b

................................ 0.087 Marginal

..................... 0.081 0.085 Door Co, WI d

..................................................................................... 0.094 Moderate

................... 0.086 0.090 Essex Co (Whiteface Mtn), NYd

....................................................... 0.091 Marginal

..................... NAV NAV Greene Co, 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 1Rule 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 aformer 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 ofSubjects

40 CFRPart 50

Environmental protection, Air pollution control, Carbon monoxide, Lead, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides.

40 CFRPart51

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 ofthe Code ofFederal Regulations is proposed to be amended as follows: PART 50-NATIONAL PRIMARY AND SECONDARY AMBIENT AIR QUALITY STANDARDS

1. Theauthority citation forpart 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; 42U.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 orto make reasonable further progress toward attainment ofthe 1-hour NAAQS.

5. Section 51.902 is revised to read as follows: §51.902 Whichclassificationand nonattainment area planning provisionsof the CAA shall apply toareas designated nonattainment forthe 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 2that apply forthat classification.

(b) [Reserved] 6. Section 51.905 is amended as follows:

a. By adding asentence to the end of paragraph (b). 

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

b. By removing andreserving paragraphs (e)(2)(ii)and (e)(2)(iii).

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

### §51.905 How doareas transitionfromthe 1-hour NAAQStothe 8-hour NAAQS and what arethe anti-backslidingprovisions?

* *_ * * *

(b) * * * Once an area attains the 1- hourNAAQS, 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 mustremain 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 oftwo State Implementation Plan revisions submitted byNew 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 forplanning purposes, and the reasonably available control measure analysis. In addition, EPA is proposing a conditional approval ofNew Jersey's efforts to meet the reasonably available control technology requirement. The intended effect ofthis action is to approve those programs that meet Act requirements and to further achieve emission reductions that willbe critical to attainment ofthe national ambient air quality standard for ozone in New Jersey's two nonattainment

areas. DATES: Comments mustbe received on
or before February 17, 2009. ADDRESSES: Submit your comments, identifiedby Docket Number EPA-R02- OAR-2008-0497, by one ofthe following methods:

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

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

e HandDelivery: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 ofoperation. The Regional Office's official hours ofbusiness are Monday through Friday, 8:30 to 4:30 excluding Federal holidays.

Instructions: Directyour comments to Docket No. EPA-R02-OAR-2008-0497. EPA's policy is that all comments received willbe 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.govor e-mail. The http://www.regulations.gov Web site is

an "anonymous access" system, which

means EPA willnot know your identity

orcontact information unless you provide it inthe body ofyour comment. Ifyou send an e-mail comment directly to EPA without going through http:// www.regulations.govyour e-mail address willbe automatically captured and included aspart ofthe comment that is placed in the public docket and made available on the Internet. Ifyou submit an electronic comment, EPA recommends that you include your
name and other contact information in the body ofyour comment and with any disk or CD-ROM you submit. IfEPA 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 aboutEPA's public docket visit the EPA Docket Centerhomepage at -http:// www.epa.gov/epahome/dockets.htm. Docket:All documents inthe docket

are listed inthe http:// www.regulations.govindex. Although listed in the index, some information is not publicly available, e.g., CBI orother information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, willbe publicly available only inhard copy. Publicly available docket materials are available either electronically inhttp:// www.regulations.govorin hard copy at the Environmental Protection Agency, Region II Office, AirPrograms Branch, 290 Broadway, 25th Floor, New York, New York 10007-1866. EPA requests, if at allpossible, thatyou contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy ofthe docket. You may view the hard copy ofthe 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 ofthe SIP revision, Air Programs Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New York, New York 10007- 1866, (212) 637-4249. SUPPLEMENTARY INFORMATION:
Table ofContents
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 NewJersey's SIP Submittals? IV. EPA's Review and Technical Information

A. Emission Inventories 1.What Are the Act Requirements? 2. WhatEmission 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 inthe SIP? 3.What Is EPA'sEvaluation? 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 NewJersey Perform ItsRACT

Analysis? 3. What Were the Results ofNew Jersey's

Analysis ofRACT for Stationary Sources? 4. What Is EPA's Evaluation? 

### 2945