[Federal Register Volume 70, Number 22 (Thursday, February 3, 2005)]
[Proposed Rules]
[Pages 5593-5600]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-1997]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 51

[OAR 2003-0079, FRL-7867-1]
RIN 2060-AJ99


Implementation of the 8-Hour Ozone National Ambient Air Quality 
Standard--Phase 1: Reconsideration

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule; notice of public hearing.

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SUMMARY: The EPA is requesting comment on two issues raised in a 
petition for reconsideration action of EPA's rule to implement the 8-
hour ozone national ambient air quality standard (NAAQS or standard). 
In addition, EPA is proposing to clarify two aspects of the 
implementation rule. On April 30, 2004, EPA issued a final rule 
addressing key elements of the program to implement the 8-hour ozone 
NAAQS. Subsequently, on June 29, 2004 and September 24, 2004, three 
different parties each filed a petition for reconsideration of certain 
specified aspects of the final rule. By letter dated September 23, 
2004, EPA granted reconsideration of three issues raised in the 
petition for reconsideration filed by Earthjustice on behalf of several 
environmental organizations. Today, we are providing additional 
information and soliciting comment on two of the issues on which we 
granted reconsideration. The issues that we are addressing today are 
whether the section 185 fee provisions apply once the 1-hour NAAQS is 
revoked and the timing for determining what is an ``applicable 
requirement'' for purposes of anti-backsliding once the 1-hour NAAQS is 
revoked. We will shortly address the issue of new source review (NSR) 
anti-backsliding in a separate action. We are requesting public comment 
on the issues discussed in this action, which are described in section 
III of the Supplementary Information section of this preamble. We plan 
to issue a final decision on these issues no later than May 20, 2005.
    We are also proposing to revise the implementation rule in two 
respects. First we are proposing to find that contingency measures for 
failure to make reasonable further progress or attain by the applicable 
attainment date for the 1-hour ozone standard are no longer required of 
an area after revocation of that standard. Second, although Sec.  
51.905 of the rule provided that areas designated nonattainment for the 
1-hour NAAQS at the time of designation as nonattainment for the 8-hour 
NAAQS remain subject to any outstanding 1-hour attainment demonstration 
requirement, we failed to list the attainment demonstration as an 
``applicable requirement.'' We are proposing to revise the definition 
of ``applicable requirement'' to include the 1-hour attainment 
demonstration.
    We are seeking comment only on the issues specifically identified 
in this document. We do not intend to respond to comments addressing 
other issues.

DATES: Comments must be received on or before March 21, 2005. A public 
hearing will be held on February 18, 2005 and will convene at 9 a.m. 
and end at 2 p.m. Because of the need to resolve the issues in this 
document in a timely manner, EPA will not grant requests for extensions 
of the public comment period. For additional information on the public 
hearing, see the SUPPLEMENTARY INFORMATION section of this preamble.

ADDRESSES: Submit your comments, identified by Docket ID No. OAR-2003-
0079, by one of the following methods:
    <bullet> Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments. Attention E-
Docket No. OAR-2003-0079.
    <bullet> Agency Website: http://www.epa.gov/edocket. EDOCKET, EPA's

[[Page 5594]]

electronic public docket and comment system, is EPA's preferred method 
for receiving comments. Follow the on-line instructions for submitting 
comments. Attention E-Docket No. OAR-2003-0079.
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#4f0e622e212b621d620b202c242a3b0f2a3f2e61282039"><span class="__cf_email__" data-cfemail="c786eaa6a9a3ea95ea83a8a4aca2b387a2b7a6e9a0a8b1">[email protected]</span></a>. Attention E-Docket No. 
OAR-2003-0079.
    <bullet> Fax: The fax number of the Air Docket is (202) 566-1741. 
Attention E-Docket No. OAR-2003-0079.
    <bullet> Mail: EPA Docket Center, EPA West (Air Docket), Attention 
E-Docket No. OAR-2003-0079, Environmental Protection Agency, Mail Code: 
6102T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
    <bullet> Hand Delivery: EPA Docket Center (Air Docket), Attention 
E-Docket No. OAR-2003-0079, Environmental Protection Agency, 1301 
Constitution Avenue, NW., Room B108; Mail Code 6102T, Washington, DC 
20460. Such deliveries are only accepted during the Docket's normal 
hours of operation, and special arrangements should be made for 
deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. OAR-2003-0079. 
The EPA's policy is that all comments received will be included in the 
public docket without change and may be made available on-line at 
http://www.epa.gov/edocket, 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 EDOCKET, 
regulations.gov, or e-mail. The EPA EDOCKET and the Federal 
regulations.gov Web sites are ``anonymous access'' systems, 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 EDOCKET or regulations.gov, your 
e-mail address will be automatically captured and included as part of 
the comment that is placed in the public docket and made available on 
the Internet. If you submit an electronic comment, EPA recommends that 
you include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit EDOCKET on-line or see the 
Federal Register of May 31, 2002 (67 FR 38102).
    Docket: All documents in the docket are listed in the EDOCKET index 
at http://www.epa.gov/edocket. 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 EDOCKET or in hard 
copy at the EPA Docket Center (Air Docket), EPA/DC, EPA West, Room 
B102, 1301 Constitution Ave., NW., Washington, DC 20460. 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) 566-1742 and the fax number is (202) 566-1741.
    Public Hearing. A public hearing will be held on February 18, 2005 
from 9 a.m. to 2 p.m. at the Environmental Protection Agency, Building 
C, Room C114, 109 T.W. Alexander Drive, Research Triangle Park, North 
Carolina 27709. Persons wishing to speak at the public hearing need to 
contact: Ms. Kara Syvertsen, E.H. Pechan, at telephone number (919) 
493-3144, extension 120 or by e-mail at <a href="/cdn-cgi/l/email-protection#c8a3a9baa9e6bbb1beadbabcbbada688b8adaba0a9a6e6aba7a5"><span class="__cf_email__" data-cfemail="a0cbc1d2c18ed3d9d6c5d2d4d3c5cee0d0c5c3c8c1ce8ec3cfcd">[email protected]</span></a>. Oral 
testimony may be limited to 3 to 5 minutes depending on the number of 
people who sign up to speak. Commenters may also supplement their oral 
testimony with written comments. The hearing will be limited to the 
subject matter of this document. The public hearing schedule, including 
the list of speakers, will be posted on EPA's Web site at: http://www.epa.gov/ttn/naaqs/ozone/o3imp8hr. A verbatim transcript of the 
hearing and written statements will be made available for copying 
during normal working hours at the EPA Docket Center (Air Docket) at 
the address listed above for inspection of documents.

FOR FURTHER INFORMATION CONTACT: Ms. Denise M. Gerth, Office of Air 
Quality Planning and Standards, Environmental Protection Agency, Mail 
Code C539-02, Research Triangle Park, NC 27711, phone number (919) 541-
5550 or by e-mail at <a href="/cdn-cgi/l/email-protection#a1c6c4d3d5c98fc5c4cfc8d2c4e1c4d1c08fc6ced7"><span class="__cf_email__" data-cfemail="d6b1b3a4a2bef8b2b3b8bfa5b396b3a6b7f8b1b9a0">[email protected]</span></a> or Mr. John Silvasi, Office 
of Air Quality Planning and Standards, Environmental Protection Agency, 
Mail Code C539-02, Research Triangle Park, NC 27711, phone number (919) 
541-5666 or by e-mail at <a href="/cdn-cgi/l/email-protection#4f3c2623392e3c2661252027210f2a3f2e61282039"><span class="__cf_email__" data-cfemail="4b3822273d2a382265212423250b2e3b2a652c243d">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. General Information

    1. Tips for Preparing Your Comments. When submitting comments, 
remember to:
    a. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    b. 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.
    c. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    d. Describe any assumptions and provide any technical information 
and/or data that you used.
    e. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    f. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    g. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    h. Make sure to submit your comments by the comment period deadline 
identified.

Outline

Supplementary Information
I. General Information
II. Background
III. Today's Action
    A. Reconsideration of the Portion of the Phase 1 Rule Addressing 
the Continued Applicability of the Section 185 Fee Provision for 
Areas That Fail To Attain the 1-Hour NAAQS
    B. Reconsideration of the Portion of the Phase 1 Rule 
Establishing the Time for Determining Which 1-Hour Obligations 
Remain Applicable Requirements
    C. Contingency Measures in SIPs for the 1-Hour Ozone Standard
    D. Adding Attainment Demonstration to the List of ``Applicable 
Requirements'' in Sec.  51.900(f)
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

[[Page 5595]]

    I. National Technology Transfer Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low Income 
Populations

II. Background

    On July 18, 1997, we promulgated a revised ozone NAAQS of 0.08 
parts per million (ppm) as measured over an 8-hour period (62 FR 
38856). At the time, we believed that the 8-hour ozone NAAQS should be 
implemented under the less detailed requirements of subpart 1 of part D 
of title I of the Clean Air Act (CAA) rather than the more detailed 
requirements of subpart 2. Various industry groups and States 
challenged EPA's final rule promulgating the 8-hour NAAQS in the U.S. 
Court of Appeals for the District of Columbia Circuit.\1\ In May 1999, 
the DC Circuit remanded the ozone standard to EPA on the basis that our 
interpretation of the standard-setting provisions of the CAA resulted 
in an unconstitutional delegation of authority. American Trucking 
Assns., Inc. v. EPA, 175 F.3d 1027, 1034-1040 (ATA I) aff'd, 195 F.3d 4 
(D.C. Cir., 1999) (ATA II). In addition, the Court held that the CAA 
clearly provided for implementation of a revised ozone standard under 
subpart 2. Id. at 1048-1050.\2\ We sought review of these two issues in 
the U.S. Supreme Court. In February 2001, the Supreme Court held that 
EPA's action in setting the NAAQS was not an unconstitutional 
delegation of authority. Whitman v. American Trucking Assoc., 121 S.Ct. 
903, 911-914 (2001) (Whitman). In addition, the Supreme Court held that 
the D.C. Circuit incorrectly determined that the CAA was clear in 
requiring implementation under subpart 2, but determined that EPA's 
approach, which did not provide a role for subpart 2 in implementing 
the 8-hour NAAQS, was unreasonable. Id. at 916-919. Specifically, the 
Court noted that the CAA funneled areas with specific design values 
into subpart 2. The Court also stated that we could not ignore the 
provisions of subpart 2 that ``eliminate[] regulatory discretion'' 
allowed by subpart 1, id. at 918, but also identified several portions 
of the CAA's classification scheme under subpart 2 that are ``ill-
fitted'' to the revised standard. The Court remanded the implementation 
strategy to EPA to develop a reasonable approach for implementation. 
Id.
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    \1\ On July 18, 1997, we also promulgated a revised particulate 
matter (PM) standard (62 FR 38652). Litigation on the PM standard 
paralleled the litigation on the ozone standard and the court issued 
one opinion addressing both challenges. Issues regarding 
implementation of the PM NAAQS were not raised.
    \2\ The Court addressed a number of other issues, which are not 
relevant here.
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    Because the D.C. Circuit had not addressed all of the issues raised 
in the underlying case, the Supreme Court remanded the case to the D.C. 
Circuit for disposition of the remaining issues. Id. at 919. On March 
26, 2002, the D.C. Circuit Court rejected all of the remaining 
challenges to the ozone and fine particle (PM<INF>2.5</INF>) standards. 
American Trucking Assoc. v. EPA, 283 F.3d 355 (D.C. Cir., 2002) (ATA 
III). With that ruling, EPA began to move forward with programs to 
protect Americans from the wide variety of health problems, such as 
respiratory illnesses in elderly persons and premature death, with 
which these air pollutants have been associated.
    On June 2, 2003 (68 FR 32802), we proposed various options 
regarding the transition from the 1-hour to the 8-hour NAAQS and the 
provisions that would govern implementation of the 8-hour NAAQS. On 
August 6, 2003 (68 FR 46536), EPA published a notice of availability of 
draft regulatory text to implement the 8-hour NAAQS. In the summer of 
2003, we held three public hearings to solicit comment on the proposal. 
Because numerous commenters recommended alternatives to or 
modifications of the proposed classification schemes, we reopened the 
public comment period on October 21, 2003 (68 FR 60054) to solicit 
comment on alternative classification approaches.
    On April 30, 2004 (69 FR 23951), we issued a final rule (Phase 1 
Rule), which covered some, but not all, of the program elements in the 
proposed rule. The Phase 1 Rule covered the following key 
implementation issues: classifications for the 8-hour NAAQS; revocation 
of the 1-hour NAAQS (i.e., when the 1-hour NAAQS will no longer apply); 
how anti-backsliding principles will ensure continued progress in 
achieving ozone reductions as areas transition to implementation of the 
8-hour ozone NAAQS; attainment dates for the 8-hour ozone NAAQS; and 
the timing of emissions reductions needed for attainment of the 8-hour 
ozone NAAQS. The EPA plans to issue shortly a final rule addressing the 
remaining issues from the June 2003 proposal (Phase 2 Rule). This final 
rule will provide EPA's interpretation of many of the planning and 
control obligations under sections 172 and 182 of the CAA that apply to 
nonattainment areas for purposes of attaining the 8-hour NAAQS. These 
include, among other things, reasonable further progress (RFP), 
reasonably available control technology, attainment demonstrations, 
maintenance plans and NSR.
    Following publication of the April 30, 2004 final rule, the 
Administrator received three petitions, pursuant to section 
307(d)(7)(B) of the CAA requesting reconsideration of a number of 
aspects of the final rule.\3\ On September 23, 2004, we granted 
reconsideration of three issues raised in the Earthjustice Petition. 
The purpose of today's action is to initiate the process to address two 
of these three issues: (1) The provision that section 185 fees would no 
longer apply for a failure to attain the 1-hour NAAQS once the 1-hour 
NAAQS is revoked; and (2) the timing for determination of what is an 
``applicable requirement.'' The NSR anti-backsliding issues will be 
addressed in a separate action.
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    \3\ The petitions for reconsideration of the Phase 1 Rule were 
filed by: (1) Earthjustice on behalf of the American Lung 
Association, Environmental Defense, Natural Resources Defense 
Council, Sierra Club, Clean Air Task Force, Conservation Law 
Foundation, and Southern Alliance for Clean Energy; (2) the National 
Petrochemical and Refiners Association and the National Association 
of Manufacturers; and (3) the American Petroleum Institute, American 
Chemistry Council, American Iron and Steel Institute, National 
Association of Manufacturers and the U.S. Chamber of Commerce.
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    On January 10, 2005, we granted reconsideration of the overwhelming 
transport classification issue raised by Earthjustice in their 
Petition. At the same time, we denied reconsideration of the issues 
they raised in their Petition dealing with the applicability of 
reformulated gasoline when the 1-hour NAAQS is revoked and future 8-
hour ozone redesignations to nonattainment. In the near future, we will 
take action on the overwhelming transport classification issue.
    We are continuing to review the issues raised in the National 
Petrochemical and Refiners Association and American Petroleum Institute 
Petitions. Copies of the Petitions for Reconsideration and actions EPA 
has taken regarding the Petitions may be found at: http://www.epa.gov/ttn/naaqs/ozone/o3imp8hr.
    We are proposing to find that contingency measures for failure to 
make RFP or attain by the applicable attainment date for the 1-hour 
ozone standard are no longer required of an area after revocation of 
that standard. We are also proposing to revise the definition of 
``applicable requirement'' in Sec.  51.900(f) to include the 1-hour 
attainment demonstration. For more detailed background information, the 
reader should refer to the Phase 1 Rule (April 30, 2004; 69 FR 23956).

[[Page 5596]]

III. Today's Action

A. Reconsideration of the Portion of the Phase 1 Rule Addressing the 
Continued Applicability of the Section 185 Fee Provision for Areas That 
Fail To Attain the 1-Hour NAAQS

    1. Background. The Phase 1 Rule provided that once the 1-hour 
standard is revoked for an area, certain requirements would no longer 
apply. For example, we stated that: (1) EPA will no longer make 
findings of failure to attain the 1-hour NAAQS; (2) EPA will no longer 
reclassify areas to a higher classification for the 1-hour NAAQS based 
on a finding of failure to attain; and (3) States are no longer 
obligated to impose fees under sections 181(b)(4) and 185 of the CAA 
(``Fee Provisions'') in severe or extreme areas that fail to attain the 
1-hour standard by the area's 1-hour attainment date (69 FR 23984).
    The petitioners claim that we did not include the issue of whether 
States would be required to impose fees under the Fee Provisions in the 
portion of the proposed rule discussing which obligations would no 
longer apply once the 1-hour standard is revoked. Thus, they claim they 
did not have an opportunity to comment on this portion of the final 
rule.
    We agree with the Petitions that we did not specifically state in 
our proposed rule that after the effective date of the revocation of 
the 1-hour NAAQS, States would no longer be obligated to impose fees 
under the Fee Provisions in severe and extreme areas that fail to 
attain the 1-hour NAAQS by their 1-hour attainment date. For this 
reason, we are today requesting comments on whether States must impose 
fees in severe and extreme areas if an area fails to attain the 1-hour 
NAAQS by its 1-hour attainment date.
    In the final rule, we explained that our interpretation was a 
logical extension of our proposal as the obligation to impose a fee is 
triggered by a finding of failure to attain. We also noted that our 
final rule regarding the Fee Provisions was consistent with appendix B 
of the June 2, 2003 proposal (68 FR 32866), which did not identify the 
section 185 fee provision as an applicable requirement.
    For severe and extreme areas, the Fee Provisions operate in lieu of 
reclassification. And, in our proposal, we proposed that we would no 
longer be obligated to reclassify areas for the 1-hour NAAQS after that 
NAAQS was revoked. As with all of the requirements that we determined 
no longer apply, the Fee Provisions are linked to whether or not the 
area has met the 1-hour NAAQS, which the Agency determined in 1998 was 
no longer necessary to protect public health. Thus, for the Fee 
Provisions and the other requirements that we determined would no 
longer apply, we concluded in the Phase 1 Rule that areas should focus 
their resources on attainment of the 8-hour standard. We noted that it 
would be counterproductive to continue efforts linked to whether or not 
an area met the 1-hour standard after areas were designated for the 8-
hour standard and had begun planning for the 8-hour standard.
    2. Request for Public Comments. Today, we are soliciting comment on 
whether, once the 1-hour standard is revoked, the Fee Provisions should 
continue to apply if an area fails to attain the 1-hour standard by its 
1-hour attainment date. We continue to believe, as stated in our final 
rule, that there is no basis for determining whether an area has met 
the 1-hour NAAQS once the 1-hour NAAQS has been revoked. Once the 1-
hour NAAQS is revoked, there will not be an applicable 1-hour 
classification or an applicable 1-hour attainment date. Since there is 
no longer an applicable 1-hour attainment date, there cannot be a 
failure to meet such a date. Thus, the consequences that would apply 
based on such a failure would not be triggered.

B. Reconsideration of the Portion of the Phase 1 Rule Establishing the 
Time for Determining Which 1-Hour Obligations Remain Applicable 
Requirements

    1. Background. Under the Phase 1 Rule, the 1-hour control measures 
that would continue to apply under the anti-backsliding portion of the 
rule are called ``applicable requirements.'' The Phase 1 Rule provided 
that the ``applicable requirements'' would be those 1-hour control 
measures that applied in an area as of the date of signature of the 
Phase 1 Rule (i.e., April 15, 2004).\4\ In the June 2003 proposal, EPA 
had proposed that the applicable requirements would be those that 
applied as of the effective date of the 8-hour designations (i.e., for 
most areas June 15, 2004). (June 2, 2003, 68 FR 32821). The draft 
regulatory text released for public comment in August 2003 defined the 
applicable requirements as those 1-hour requirements that applied as of 
the date of revocation of the 1-hour NAAQS (i.e., for most areas, June 
15, 2005). (See e.g., 51.905(a) of Draft Regulatory Text.) The 
petitioners claim that since EPA did not propose the date of signature 
of the designation rule (i.e., April 15, 2004) as the date for 
determining which 1-hour control measures would continue to apply, they 
did not have an opportunity to comment on this portion of the final 
rule.
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    \4\ The Phase 1 Rule provides in Sec.  51.900(f) that: 
``Applicable requirements means for an area the following 
requirements to the extent such requirements apply or applied to the 
area for the areas's classification under section 181(a)(1) of the 
CAA for the 1-hour NAAQS at the time the Administrator signs a final 
rule designating the area for the 8-hour standard as nonattainment, 
attainment or unclassifiable...'' (69 FR 23997). Phase 1 of the 
final rule to implement the 8-hour ozone NAAQS was signed by the 
Administrator on April 15, 2004.
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    We agree with the Earthjustice Petition that we did not propose 
that the applicable requirements be based on the time at which the 
Phase 1 Rule was signed, but rather proposed two options that were 
later in time--publication of the designation rule or revocation of the 
1-hour NAAQS. Thus, we are reopening for comment the issue of what 
should be the date for determining the applicable requirements.
    We believe it is important for areas to understand early in the 
process which requirements will remain in place. This is particularly 
true for areas with an outstanding attainment demonstration obligation. 
Our Phase 1 Rule provides that such areas can elect to submit a 5 
percent plan or an early 8-hour attainment demonstration in lieu of the 
outstanding 1-hour State implementation plan (SIP) and that those 
alternative plans are due no later than 1 year after the effective date 
of 8-hour designations. Thus, States need to know early whether a 1-
hour attainment SIP obligation remains in place so that they may 
develop and submit that SIP or one of the two alternatives. For that 
reason, we do not believe the date in the draft regulatory text--the 
date on which the 1-hour standard is revoked--is appropriate, as it 
would be the same date such SIPs are due.
    2. Request for Public Comments. Today, we are soliciting public 
comment on what date should be used for the purpose of defining the 
applicable requirements. We are proposing to adopt, consistent with our 
June 2003 proposal, the effective date of the 8-hour designation (i.e., 
for most areas June 15, 2004) as the date for determining which 1-hour 
control measures continue to apply in an area once the 1-hour standard 
is revoked. Under this approach, the 1-hour obligations that are 
applicable requirements in an area as of June 15, 2004 would continue 
to apply under the anti-backsliding provisions of the Phase 1 Rule. We 
believe that June 15, 2004 is more consistent with the other aspects of 
our implementation rule that are keyed to the effective date of the 
designations rather than the signature

[[Page 5597]]

date. In other words, we are proposing to define the ``applicable 
requirements'' as those that applied to an area for the area's 1-hour 
ozone classification under section 181(a)(1) of the CAA at the time of 
the effective date of the 8-hour designation for the area.
    If we take final action to change the date for defining 
``applicable requirements'' for purposes of anti-backsliding from April 
15, 2004 to June 15, 2004, two areas will be affected by the change. 
Both of these areas were reclassified (bumped up) to a higher 
classification for the 1-hour NAAQS with an effective date after April 
15, 2004, but before June 15, 2004. The first area, Beaumont/Port 
Arthur, Texas, was reclassified to serious with an attainment date as 
expeditiously as practicable but no later than November 15, 2005. The 
reclassification was effective on April 29, 2004 (69 FR 16483; March 
30, 2004). The other area, San Joaquin Valley, California, requested a 
voluntary bump to extreme with an attainment date as expeditiously as 
practicable but no later than November 15, 2010. The bump up was 
effective on May 17, 2004 (69 FR 20550; April 16, 2004). These areas 
will have to implement the serious and extreme CAA requirements, 
respectively, for purposes of anti-backsliding if we change the date 
for determining which ``applicable requirements'' apply from April 15, 
2004 to June 15, 2004.
    In addition to being consistent with the trigger date for other 
obligations under the Phase 1 Rule, changing the date for determining 
``applicable requirements'' to June 15, 2004 would ensure that these 
two areas meet obligations that were recently triggered. Beaumont was 
recently reclassified to serious based on its failure to attain the 1-
hour NAAQS by its 1999 attainment date. Since 1999, Beaumont has 
continued to experience violations of the 1-hour NAAQS and is currently 
violating the 8-hour NAAQS with a 2001-2003 8-hour ozone design value 
of 0.091 ppm. The State of California requested that San Joaquin Valley 
be reclassified to extreme because the State and the San Joaquin Valley 
Unified Air Pollution Control District were unable to develop a SIP 
that demonstrated attainment by 2005 based on its severe-15 
classification. California submitted a new 1-hour plan including a 
demonstration that the San Joaquin Valley area will meet rate of 
progress requirements for 2008 and attain the 1-hour NAAQS by no later 
than 2010, the extreme area deadline. The San Joaquin Valley area is 
classified as serious with respect to the 8-hour ozone NAAQS and has an 
8-hour ozone design value of 0.115 ppm.
    Based on this information, we believe these areas should implement 
the additional 1-hour requirements of the higher classifications to 
ensure continued progress toward reducing ambient ozone levels and 
meeting the 8-hour ozone standard.

C. Contingency Measures in SIPs for the 1-Hour Ozone Standard

    1. Background. Section 172(c)(9) of the CAA requires that 
nonattainment area SIPs contain contingency measures that would be 
implemented if an area fails to attain the NAAQS or fails to make RFP 
toward attainment. The issue of what would happen to contingency 
measures that have been approved into an area's 1-hour ozone attainment 
SIP once the 1-hour NAAQS is revoked and whether areas that had not 
submitted contingency measures would still be required to do so was not 
expressly addressed in the proposed (68 FR 32802) or final Phase 1 Rule 
(69 FR 23951). Today, EPA is addressing the issue and requesting 
comments on our proposed approach.
    Regarding contingency measures within maintenance plans under 
section 175A of the CAA, the Phase 1 Rule provided that areas with 
approved 1-hour maintenance plans could modify their maintenance plans 
to remove the obligation to implement contingency measures upon 
violation of the 1-hour NAAQS. The Phase 1 Rule also provided that such 
requirements would remain enforceable as part of the approved SIP until 
such time as we approved a SIP revision removing such obligations.
    2. Summary of Today's Proposal. Today, we are proposing that 
sections 172(c)(9) and 182(c)(9) contingency measures, which are 
triggered upon a failure to attain the 1-hour standard or to meet 
reasonable progress milestones for the 1-hour standard, will no longer 
be required once the 1-hour NAAQS is revoked. This means that after 
revocation of the 1-hour standard, an area that has not submitted a 1-
hour attainment demonstration or a specific 1-hour RFP SIP would no 
longer need to submit contingency measures in conjunction with those 
SIPs. Additionally, an area with approved 172 and 182 contingency 
measures could remove them from the SIP.
    We believe that the contingency measures are linked to the other 
requirements that EPA determined would no longer apply once the 1-hour 
standard is revoked. After revocation of the 1-hour standard, we will 
no longer make findings that areas failed to attain or make progress 
towards the 1-hour NAAQS. We have previously concluded that these 
findings are no longer necessary since they are for a NAAQS that is no 
longer applicable. Similarly, since these contingency measures are only 
triggered by a finding that an area has failed to attain or make 
progress toward a NAAQS that no longer applies, findings that we will 
no longer be making, they will not be triggered. Therefore, we believe 
States should not be required to submit contingency measures with their 
1-hour attainment demonstrations or 1-hour RFP SIPs. The basis for 
concluding that 1-hour contingency measures should no longer apply once 
the 1-hour standard is revoked is the same as the basis for concluding 
that the Fee Provisions should no longer apply once the 1-hour NAAQS is 
revoked.

D. Adding Attainment Demonstration to the List of ``Applicable 
Requirements'' in Sec.  51.900(f)

    1. Background. Most 1-hour ozone nonattainment areas have fully 
approved attainment demonstrations for the 1-hour NAAQS. Therefore, our 
rule focused on the few areas without approved attainment 
demonstrations either because the areas did not meet the CAA deadlines 
or because they were reclassified (bumped up) to a higher 
classification for failure to attain by their attainment date. In our 
final rule, we allowed States to choose among three options for meeting 
their unmet attainment demonstration obligations (69 FR 23975).
    a. Submit a 1-hour attainment demonstration;
    b. Submit, no later than 1 year after the effective date of the 8-
hour designations, an early increment of progress plan toward the 8-
hour NAAQS, which provides a 5 percent increment of reductions from the 
2002 emissions baseline (NO<INF>X</INF> and/or VOC); or
    c. Submit an early 8-hour ozone attainment demonstration SIP 1 year 
after the effective date of 8-hour designations.
    When we defined ``applicable requirements'' in Sec.  51.900(f), we 
neglected to include the term attainment demonstrations.
    2. Summary of Proposed Rule. Today, we are proposing that the term 
``attainment demonstration'' be added to Sec.  51.900(f) which states 
that:

Applicable requirements means for an area the following requirements to 
the extent such requirements apply or applied to the area for the 
area's classification under section 181(a)(1) of the CAA for the 1-hour 
NAAQS at the

[[Page 5598]]

time the Administrator signs a final rule designating the area for the 
8-hour standard as nonattainment, attainment or unclassifiable * * *

    The term ``attainment demonstration'' will be included in Sec.  
51.900(f) as ``(13) Attainment demonstration or an alternative as 
provided under Sec.  51.905(a)(ii).'' In the final rule, we stated that 
an attainment demonstration was an applicable requirement for purposes 
of Sec.  51.905 but did not include it under the definitions of Sec.  
51.900(f). Our intent in this proposal is to clarify that an attainment 
demonstration is an ``applicable requirement.''

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether the regulatory action is ``significant'' 
and, therefore, subject to Office of Management and Budget (OMB) review 
and the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of Executive Order 12866, it has been 
determined that this proposed rule is not a ``significant regulatory 
action.'' The reconsideration put forth today does not propose to 
substantially change the final Phase 1 Rule. With respect to one issue, 
we propose to retain the position we adopted in the final rule. As to 
the second issue, we propose to modify a date in the rule so that it is 
consistent with our original proposal. Finally, we are promulgating 
regulatory text to make two clarifications to the final rule. We 
believe that these do not substantially modify the intent of the final 
rule but rather clarify two issues.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act generally requires an Agency to 
prepare a regulatory flexibility analysis of any rule subject to notice 
and comment rulemaking requirements under the Administrative Procedures 
Act or any other statute unless the Agency certifies the rule will not 
have a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small organizations, 
and small governmental jurisdictions.
    For purposes of assessing the impacts of today's proposed rule on 
small entities, small entity is defined as: (1) A small business that 
is a small industrial entity as defined in the U.S. Small Business 
Administration (SBA) size standards. (See 13 CFR part 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-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This 
proposed rule will not impose any requirements on small entities. The 
Phase 1 Rule interpreted the obligations required of 1-hour ozone 
nonattainment areas for purposes of anti-backsliding once the 1-hour 
NAAQS is revoked. This proposed reconsideration addresses two aspects 
of that final rule that the Agency was requested to reconsider and 
clarifies two other aspects of the rule. Since the Phase 1 Rule does 
not impose requirements on small entities our further action on aspects 
of that rule also does not impose requirements on small entities.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and Tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and Tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
1 year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including Tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    The EPA has determined that this proposed rule does not contain a 
Federal mandate that may result in expenditures of $100 million or more 
for State, local, and Tribal governments, in the aggregate, or the 
private sector in any 1 year. In promulgating the Phase 1 Rule, we 
concluded that it was not subject to the requirements of sections 202 
and 205 of the UMRA. For those same reasons, our reconsideration and 
clarification of several aspects of that rule is not subject to the 
UMRA.
    The EPA has determined that this proposed rule contains no 
regulatory requirements that may significantly or uniquely affect small 
governments, including Tribal governments. Nonetheless, EPA carried out 
consultations with governmental entities affected by this rule.

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 and local officials in the 
development of regulatory policies that have federalism

[[Page 5599]]

implications.'' ``Policies that have federalism implications'' is 
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 proposed rule does not have federalism implications. It will 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. This proposed reconsideration 
addresses two aspects of the Phase 1 Rule that the Agency was requested 
to reconsider and clarifies two other aspects of the rule. For the same 
reasons stated in the Phase 1 Rule, Executive Order 13132 does not 
apply to this proposed rule.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed rule 
from State and local officials.

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

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by Tribal officials in the development of regulatory 
policies that have Tribal implications.'' This proposed rule does not 
have ``Tribal implications'' as specified in Executive Order 13175.
    The purpose of this proposed rule is taking comment on two issues 
from the Phase 1 Rule that EPA has agreed to grant for reconsideration, 
in addition to two other issues from the Phase 1 Rule. These issues 
concern the implementation of the 8-hour ozone standard in areas 
designated nonattainment for that standard. The CAA provides for States 
and Tribes to develop plans to regulate emissions of air pollutants 
within their jurisdictions. The Tribal Authority Rule (TAR) gives 
Tribes the opportunity to develop and implement CAA programs such as 
the 8-hour ozone NAAQS, but it leaves to the discretion of the Tribes 
whether to develop these programs and which programs, or appropriate 
elements of a program, they will adopt.
    For the same reasons stated in the Phase 1 Rule, this proposed rule 
does not have Tribal implications as defined by Executive Order 13175. 
It does not have a substantial direct effect on one or more Indian 
Tribes, since no Tribe has implemented a CAA program to attain the 8-
hour ozone NAAQS at this time. Furthermore, this proposed rule does not 
affect the relationship or distribution of power and responsibilities 
between the Federal government and Indian Tribes. The CAA and the TAR 
establish the relationship of the Federal government and Tribes in 
developing plans to attain the NAAQS, and this proposed rule does 
nothing to modify that relationship. Because this proposed rule does 
not have Tribal implications, Executive Order 13175 does not apply.
    While the proposed rule would have Tribal implications upon a Tribe 
that is implementing such a plan, it would not impose substantial 
direct costs upon it nor would it preempt Tribal law.
    Although Executive Order 13175 does not apply to this proposed 
rule, EPA consulted with Tribal officials in developing this proposed 
rule. The EPA has supported a national ``Tribal Designations and 
Implementation Work Group'' which provides an open forum for all Tribes 
to voice concerns to EPA about the designation and implementation 
process for the 8-hour ozone standard.

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

    Executive Order 13045: ``Protection of Children From Environmental 
Health and Safety Risks'' (62 FR 19885, April 23, 1997) applies to any 
rule that (1) is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe may have 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    This proposed rule addresses two aspects of the Phase 1 Rule that 
the Agency was requested to reconsider and clarifies two other aspects 
of the rule. Neither the Phase 1 Rule nor this proposal imposes 
requirements on small entities. The proposed rule is not subject to 
Executive Order 13045 because the Agency does not have reason to 
believe the environmental health risks or safety risks addressed by 
this action present a disproportionate risk to children. Nonetheless, 
we have evaluated the environmental health or safety effects of the 8-
hour ozone NAAQS on children. The results of this evaluation are 
contained in 40 CFR part 50, National Ambient Air Quality Standards for 
Ozone, Final Rule (62 FR 38855-38896; specifically, 62 FR 38854, 62 FR 
38860 and 62 FR 38865).

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

    This proposed rule is not a ``significant energy action'' as 
defined in Executive Order 13211, ``Actions That Significantly Affect 
Energy Supply, Distribution, or Use,'' (66 FR 28355, May 22, 2001) 
because it is not likely to have a significant adverse effect on the 
supply, distribution, or use of energy.
    Information on the methodology and data regarding the assessment of 
potential energy impacts is found in Chapter 6 of U.S. EPA 2002, Cost, 
Emission Reduction, Energy, and Economic Impact Assessment of the 
Proposed Rule Establishing the Implementation Framework for the 8-Hour, 
0.08 ppm Ozone National Ambient Air Quality Standard, prepared by the 
Innovative Strategies and Economics Group, Office of Air Quality 
Planning and Standards, Research Triangle Park, N.C., April 24, 2003.

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer Advancement Act 
of 1995 (NTTAA), Public Law No. 104-113, section 12(d) (15 U.S.C. 272 
note) directs EPA to use voluntary consensus standards (VCS) 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 VCS bodies. The NTTAA directs EPA to provide Congress, 
through OMB, explanations when the Agency decides not to use available 
and applicable VCS.
    This proposed rulemaking does not involve technical standards. 
Therefore, EPA is not considering the use of any VCS.
    The EPA will encourage the States and Tribes to consider the use of 
such standards, where appropriate, in the development of the 
implementation plans.

[[Page 5600]]

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

    Executive Order 12898 requires that each Federal agency make 
achieving environmental justice part of its mission by identifying and 
addressing, as appropriate, disproportionate high and adverse human 
health or environmental effects of its programs, policies, and 
activities on minorities and low-income populations.
    The EPA concluded that the Phase 1 Rule should not raise any 
environmental justice issues; for the same reasons, this proposal 
should not raise any environmental justice issues. The health and 
environmental risks associated with ozone were considered in the 
establishment of the 8-hour, 0.08 ppm ozone NAAQS. The level is 
designed to be protective with an adequate margin of safety. The 
proposed rule provides a framework for improving environmental quality 
and reducing health risks for areas that may be designated 
nonattainment.

List of Subjects in 40 CFR Part 51

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

    Dated: January 27, 2005.
Jeffrey R. Holmstead,
Assistant Administrator for Air and Radiation.

    For the reasons stated in the preamble, Title 40, Chapter I of the 
Code of Federal Regulations, is proposed to be amended as follows:

PART 51--[AMENDED]

    1. 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--Provisions for Implementation of 8-Hour Ozone National 
Ambient Air Quality Standard

    2. Section 51.900 is amended by revising paragraph (f) introductory 
text and adding paragraph (f)(13) to read as follows:


Sec.  51.900  Definitions.

* * * * *
    (f) Applicable requirements means for an area the following 
requirements to the extent such requirements apply or applied to the 
area for the area's classification under section 181(a)(1) of the CAA 
for the 1-hour NAAQS at the time of the effective date of the final 
rule designating the area for the 8-hour standard as nonattainment, 
attainment, or unclassifiable:
* * * * *
    (13) Attainment demonstration or an alternative as provided under 
Sec.  51.905(a)(1)(ii).
* * * * *
    3. Section 51.905 is amended by revising paragraph (e)(2)(ii) and 
by adding paragraph (e)(2)(iii) as follows:


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

* * * * *
    (e) * * *
    (2) * * *
    (ii) The State is no longer required to impose under CAA sections 
181(b)(4) and 185 fees on emissions sources in areas classified as 
severe or extreme based on a failure to meet the 1-hour attainment 
date.
    (iii) The State is no longer required to implement contingency 
measures under CAA section 172(c)(9) based on a failure to attain the 
1-hour NAAQS or to make reasonable further progress toward attainment 
of the 1-hour NAAQS.
* * * * *
[FR Doc. 05-1997 Filed 2-2-05; 8:45 am]
BILLING CODE 6560-50-P


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